CH 3 - Admission and Removal

15/04/2020 Ch 3 - Admission and Removal
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Chapter 3 - Admission and Removal

[Kurzban's Immigration Law Sourcebook, 16th Ed. (2018)]
Chapter 3 Detailed Table of Contents (PDF)
Page 69
I. LAWFUL ADMISSION AS THE DEFINING CONCEPT

A. Lawful Admission, Not Entry, is the Defining Concept
1. Generally—The distinction between exclusion and deportation, which historically turned on the concept of
“entry” into the United States, became far less important with the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), which struck the definition of entry and replaced it with a
definition of admission. Admission is defined as the “lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.” INA §101(a)(13)(A). The distinction is drawn between
people who have been lawfully admitted into the U.S. and all other people. Gomez v. Lynch, 831 F.3d 652
(5th Cir. 2016) [under substantial-evidence review, person found not to have lawfully entered despite entering
Houston Airport]. Therefore, persons who enter without inspection (EWI) are deemed inadmissible as if they
had been detained at the border. INA §212(a)(6)(A)(i); 8 CFR §235.1(f)(2) [an alien “present in the U.S. who
has not been admitted or paroled, or an alien who seeks entry at other than an open, designated port of entry
… is subject to the provisions of INA §212(a)”]; 9 FAM 302.9-3(B)(1)(a)-(b) [refers to person’s admission into
the U.S. rather than an application for a visa]. Because persons who enter EWI are treated as applicants for
admission under INA §235(a)(1), 8 USC §1225(a)(1), they qualify for parole under INA §212(d)(5)(A); 8 USC
§1182(d)(5)(A) even if they do not meet the “arriving alien” definition under 8 CFR §1.2. Memo, Virtue, G.C.
to Field (HQCOU 120/17-P) (Aug. 21, 1998), reprinted in 76, No. 26 Interpreter Releases 1067–70 (July 12,
1999). A person, however, may be considered “inspected and admitted” even if inadmissible and/or
presenting false documents at the border. See Chapter 6, ¶ XII.A.1 (p.1373), infra.
2. Continuing, But Limited Relevance of the Entry Doctrine—The traditional test for entry—requiring (1) physical
presence (a crossing into the territorial limits of the U.S.); (2) either (a) inspection and admission by an
immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3)
freedom from restraint—is now of limited importance, but remains relevant. See Matter of Z-, 20 I&N Dec.
707 (BIA 1993); Matter of Patel, 20 I&N Dec. 368, 370 (BIA 1991); Matter of Sanchez, 17 I&N Dec. 218, 220
(BIA 1980); Matter of Pierre, 14 I&N Dec. 467 (BIA 1973); Lopez v. Sessions, 851 F.3d 626 (6th Cir. 2017) [in
NACARA case, government had burden to show that applicant did not make an entry without inspection (and
therefore eligible for NACARA) because he was under official restraint]; De Leon v. Holder, 761 F.3d 336 (4th
Cir. 2014) [to be eligible for special rule cancellation a Guatemalan must show he was not apprehended at
the time of entry and where government’s own report indicated that applicant was first seen inside the U.S.
he made entry free from official restraint]; Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 854–55 (9th Cir.
2004) [person paroled and released was not free from restraint because he was in exclusion proceedings the
entire time and therefore did not enter the U.S.]; Sidhu v. Ashcroft, 368 F.3d 1160 (9th Cir. 2004); Yang v.
Maugans, 68 F.3d 1540 (3d Cir. 1995); Zhang v. Slattery, 55 F.3d 732, 756 (2d Cir. 1995). The definition of
admission requires a “lawful entry,” so entry remains an aspect of admission. Moreover, notwithstanding the
determination that persons who are EWI are subject to inadmissibility, they are still considered to have made
an “entry” for other purposes. Heng Meng Lin v. Ashcroft, 247 F.Supp.2d 679, 683–85 (E.D. Pa. 2003) [for
purposes of due process right of release under Zadvydas and application of 8 CFR §241.13, a person who
entered EWI has entered and is entitled to due process notwithstanding treatment as an inadmissible
person]. Immigration decisions draw numerous distinctions concerning when and under what circumstances
a person has made an entry into the U.S. For example, an alien who escaped from detention while awaiting
an exclusion hearing did not make an entry. Matter of Lin, 18 I&N Dec. 219 (BIA 1982). An alien in Page 70
transit without a visa (TWOV) has not entered the U.S. U.S. v. Kavazanjian, 623 F.2d 730 (1st Cir. 1980);
U.S. v. Esperdy, 210 F.Supp. 786 (S.D.N.Y. 1962). An alien who was placed in carrier custody and failed to
appear for an INS interview on admissibility has not made an entry. Vitale v. INS, 463 F.2d 579 (7th Cir.
1972).
3. Freedom from Restraint—The question of entry may often turn on whether the applicant is free from restraint;
if no restraint, person may be deemed to have entered. Eluding INS for a brief period of time after landing
does not necessarily mean the applicant is free from restraint. Yang v. Maugans, 68 F.3d 1540, 1550 (3d Cir.
https://ailalink.aila.org/#documents/68538 1/536
1995) [applicants who landed on beach that was teeming with law enforcement officers were not free from
restraint]. An alien under surveillance before he enters may be deemed under restraint. Zhang v. Slattery,
supra, 55 F.3d at 755 [continuous surveillance by INS can be sufficient to place alien under affirmative
restraint]. However, where surveillance begins after person makes a landing and is at liberty for some period
of time, no restraint. Nyirenda v. INS, 279 F.3d 620 (8th Cir. 2002) [persons free from restraint where they
were driving out of sight of INS officials while traveling on a highway for 2 miles in U.S.]; Matter of Z-, 20 I&N
Dec. 707 (BIA 1993). An LPR who passed primary inspection but was deferred for customs inspection
thereby never leaving the “customs enclosure” did not make an entry because he was not free from restraint.
Correa v. Thornburgh, 901 F.2d 1166, 1171–72 (2d Cir. 1990); Matter of Patel, 20 I&N Dec. 368 (BIA 1991)
[freedom from restraint need not be by INS officers]. But see Tellez v. Lynch, 839 F.3d 1175 (9th Cir. 2016)
[an expedited removal order at a U.S. border-crossing checkpoint is an entry for purposes of the
reinstatement provisions “reentry” requirement]. However, a detained stowaway who escapes while awaiting
removal, Matter of A-, 9 I&N Dec. 356 (BIA 1961), an alien who escapes after being refused admission,
Matter of Ching & Chen, 19 I&N Dec. 203 (BIA 1984), or a person who comes ashore on land within federal
jurisdiction but for reasons unrelated to immigration processing, Matter of Z-, supra, has made an entry into
the U.S.
An intention to evade inspection need not be established through the person’s own words. It may be
established through documentary evidence and the facts and circumstances of entry, even where INS
provides rebuttal testimony. Nyirenda v. INS, 279 F.3d 620 (8th Cir. 2002) [evidence indicated person
intended to evade inspection and her response was not credible]; Matter of Z-, supra; Zhang v. Slattery,
supra [same].
B. Parole Is Not an Admission—Historically, parole (either at the border or out of detention) is not an admission.
Leng May Ma v. Barber, 357 U.S. 185 (1958); INA §212(d)(5), 8 USC §1182(d)(5). The Act provides that a
person granted parole, like a crewmember permitted to land temporarily, is not deemed to be admitted. INA
§101(a)(13)(B). Ibragimov v. Gonzales, 476 F.3d 125, 132–38 (2d Cir. 2007) [AOS applicant reentering on an
advance parole was an arriving alien under former 8 CFR §1.1(q); if AOS is denied he remains a parolee and
does not revert to a person admitted as an overstay]; Matter of Camarillo, 25 I&N Dec. 644, 652 (BIA 2011)
[parole is not an admission and therefore the date of parole and the time paroled cannot count toward the seven
years to qualify for cancellation as an LPR]. One consequence, in the BIA’s view, is that, in the case of an LPR
paroled into the U.S. for prosecution, DHS could rely on his subsequent conviction to find him inadmissible.
Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012). See also Munoz v. Holder, 755 F.3d 366 (5th Cir. 2014)
[same].
C. Termination of Parole—When does a person’s parole end? Is it the date that it expires on the parolee’s card or
does it remain valid until he or she is issued an NTA. Compare 8 CFR §§212.5(e)(1) and (2) [at the end of the
expiration of parole the parolee shall be issued an NTA] and INA §212(d)(5)(A) [when parole terminated shall be
returned to custody] with Bouchikhi v. Holder, 676 F.3d 173, 179-80 (5th Cir. 2012) [termination of parole occurs
when the date of the parole ends].
D. Parole-in-Place—USCIS has extended the parole authority to grant people who are physically in the U.S. a
“status” that would allow them to remain lawfully and in some cases adjust their status to permanent residency.
The underlying theory of parole-in-place is that INA §212(d)(5)(A) recognizes DHS’s authority to parole a person,
on a case-by-case basis, for “urgent humanitarian reasons” or “significant public benefit” and that a person who
entered without inspection (EWI) is considered an applicant for admission under INA §235(a)(1) and therefore
may be paroled. Parole-in-place would, in effect, allow a person who is EWI to be paroled and thereafter
become eligible to AOS. A popular use of this mechanism has been to allow EWI spouses of military personnel
and veterans to AOS by first granting them parole-in-place. USCIS has now formalized the use of parole-in-
place for the spouses, sons and daughters (including married sons and daughters), and parents of (i) active duty
members of the U.S. Armed Page 71 Forces; (ii) individuals in the Selected Reserve of the Ready Reserve; and
(iii) individuals who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve
whether living or deceased who were not dishonorably discharged. AFM 21.1(c) and 40.6.2(a); Policy Memo,
USCIS, PM-602-0114, Discretionary Options for Designated Spouses, Parents, and Sons and Daughters of
Certain Military Personnel, Veterans, and Enlistees, (Nov. 23, 2016), AILA Doc. No. 16112333; Policy Memo,
USCIS, PM-602-0091, Parole of Spouses, Children and Parents of Active Duty Members, etc., (Nov. 15, 2013),
AILA Doc. No. 13111545. Absent a criminal conviction, dishonorable discharge, or other serious adverse factors,
parole-in-place in these circumstances would generally be appropriate, would cure any inadmissibility problem
arising from INA §212(a)(6)(A)(i), and would therefore allow AOS. Id. In order to obtain parole-in-place the
applicant is encouraged but need not have filed an I-130 or I-360 (if military person is deceased). However, to
obtain a renewal of parole-in-place an applicant had to file and have pending or approved an I-130 or I-360. A
receipt notice of the filed petition must accompany the request for parole-in-place. AFM 21.1(c)(3)(A). Individuals
who have obtained parole-in-place are eligible to apply for employment authorization. 8 CFR §274a.12(c)(11),
(14). The Secretary of DHS has directed USCIS to expand the program. Memo, Johnson, Sec. DHS, Families of
U.S. Armed Forces Members and Enlistees (Nov. 20, 2014), AILA Doc. No. 14112101. As a result, Deferred
Action is also being used as an alternative mechanism particularly for persons who are in the Delayed Entry
Program (that is persons who sign a contract to enter the military but their Basic Training is delayed). See Policy
Memo, 602-0114, supra and AFM 21.1(c)(2). For further details on the use of Deferred Action for Family
Members in the U.S. Military, see Chapter 8, Section XII.D (p.1701), infra.
USCIS has also used the parole-in-place mechanism previously to allow out-of-status E-2 investors and
transitional workers in the CNMI to maintain a lawful status during the transition period. USCIS, USCIS Advises
Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available (Apr. 2010).
Parole-in-place is different from humanitarian parole, which seeks to bring someone who is not physically
present in the U.S. to the U.S. for humanitarian reasons and the application is typically filed with the USCIS
parole office in Washington, D.C. See in this chapter ¶ IV.M.16 (p.242), infra. For a determination regarding filing
a parole-in-place request review MOA, Parole Between USCIS, ICE and CBP (Sept. 2008),
http://1.usa.gov/1rNKidz.Theoretically, there is nothing to prohibit USCIS from granting any EWI person in the
U.S. parole-in-place to allow them to AOS in the U.S. without being subject to the 3/10 year bars. A person
granted parole-in-place is also eligible to apply for advance parole. Q&As;, Meeting USCIS Field Operations
Directorate with AILA (Apr. 10, 2014) at 6, AILA Doc. No. 14050844.
E. Parole for Entrepreneurs— 8 CFR §212.19; 82 FR 5238-89 (Jan. 17, 2017)
1. In General—Allows for the use of parole on a case-by-case basis “with respect to entrepreneurs of start-up
entities who can demonstrate through evidence of substantial and demonstrated potential for rapid business
growth and job creation that they would provide a significant public benefit…” 82 FR 5238. Potential for the
public benefit would be indicated by receipt of significant capital from U.S. investors or through awards or
grants from Federal, state or local entities. Parole is granted for 30 months which may be extended (a re-
parole) for an additional 30 months. Id. However, this provision, which was to go into effect, on July 17, 2017
has now been delayed until Mar. 14, 2018 while DHS considers rescinding the rule in light of EO 13767 on
Border Security that decided parole should only be exercised on a case-by-case basis and only when
individuals demonstrate urgent humanitarian reasons or significant public benefit. 82 FR 31887-90 (July 11,
2017). As a result of federal litigation challenging the decision to rescind the rule without publishing it in the
federal register, the administration was forced to begin accepting application under the parole program.
National Venture Capital Assoc. v. Duke, 291 F.Supp.3d 5 (2017) [notice and comment publication was
required in the publication of a rule delaying the implementation of the rule establishing a parole program for
international entrepreneurs and therefore the delay rule was vacated requiring USCIS to proceed with the
program]. However, USCIS simultaneously announced that they would be issuing a notice of proposed
rulemaking (NPRM) to remove the program entirely. USCIS, Instructions on Filing International Entrepreneur
Parole (Dec. 2017), AILA Doc. No. 17121503; Press Release, USCIS to Begin Accepting Application Under
the International Entrepreneur Rule (Dec. 14, 2017), AILA Doc. No. 17121435. Page 72
2. Requirements for Initial Parole— 8 CFR §212.19(b)(2)—Applicant must demonstrate in USCIS’s discretion
that a grant of parole will provide a significant public benefit to the U.S. based on his/her role as an
entrepreneur of a start-up as follows:
2.a. Establish that he or she is an entrepreneur (an owner of at least 10% of start-up at time of parole, has a
central and active role in the operations, and is “well positioned” to assist the entity)
(1) USCIS may consider the potential entrepreneur’s track record to determine whether there is a
“significant public benefit” to parole him into the U.S. 82 FR at 5245-46.
(2) To determine whether the entrepreneur is well-positioned to advance the entity’s business he must be
a significant owner and play an active and central role in the operations and future growth of the
company. He cannot be “a mere investor.” Evidence that an entrepreneur has an active and central
role and is therefore well–positioned to advance the entity’s business includes: (i) letters from relevant
government agencies, qualified investors, or established business associations; (ii) news articles
showing applicant has received significant attention; (iii) documentation that the entrepreneur or the
entity has participated in, is participating in, or has graduated from one or more established and
reputable start-up accelerators; (iv) success in prior start-ups; (v) degrees or other indications of skills;
(vi) documentation of intellectual property (e.g., patents) of start-up; (vii) a position description of
applicant’s role in the operations of the company; and (viii) any other relevant, probative and credible
evidence that applicant can advance the entity’s business. 82 FR 5246.
(3) “Technical Founders” of a company may be considered entrepreneurs under the rule. 82 FR 5247.
2.b. Establish that entity is a start-up (a U.S. business entity formed within the 5 years immediately
preceding the filing date for parole or within 5 years immediately preceding government grant or
investment money from qualified investor).
(1) Staffing companies may be start-ups. 82 FR at 5248.
2.c. Establish that the entity has received within the 18 months immediately preceding parole application: (i)
a qualified investment of $250,000 from one or more qualified investors or (ii) an amount of at least
$100,000 through one or more qualified government awards or grants. Evidence of having received
“substantial investment from a qualified investor may be sufficient to establish that the start-up entity has
the potential for rapid growth and job creation.” 82 FR at 5254.
(1) Qualified Investors are: (i) LPRs, USCs, or a U.S. legal entity (e.g., corporation, LLC) majority owned
by USC/LPR; (ii) who regularly make substantial investments in start-ups that subsequently exhibit
substantial growth; (iii) who have made investments of no less than $600,000 in last 5 years; (iv) and
who in last 5 years had at least 2 such entities that the investor made an investment in that created 5
qualified jobs or generated $500,000 in revenue with average annualized revenue growth of at least 20
percent. A qualified investor shall not include a person or entity enjoined from participating in offer or
sale of securities. 8 CFR §212.19(a)(5).
(2) Qualified Government Award/Grant means an award or grant for economic development, research
and development, or job creation by a federal, state, or local government entity (but not foreign
government entities) that regularly provide such awards or grants to start-ups. 8 CFR §212.19(a)(3).
Does not include grants by charitable organizations or foreign entities/individuals for meeting the
threshold requirements, but there is nothing that precludes an entrepreneur from accepting charitable
grants or foreign investment. 82 FR 5248-49, 5251.
(3) Crowdfunding and bootstrapping/self-funding means of raising funds are not considered qualified
investors. 82 FR at 5252. Nor are regional centers. 82 FR at 5253.
(4) Qualified Investment—Must be good faith investment that does not attempt to circumvent investment
limitations imposed by regulations. It includes “lawfully derived capital in a start-up entity that is a
purchase from such entity of its equity, convertible debt, or other security convertible into its equity
commonly used in financing transactions within such entity’s industry.” It does not include an
investment by the entrepreneur or the parents, Page 73 spouse, brother, sister, son, or daughter of
such entrepreneur or any entity in which they have a direct or indirect ownership interest. 8 CFR
§212.19(a)(4).
2.d. Alternative Criteria—Even if the applicant does not fully obtain the investment requirement above, he or
she may provide “other reliable and compelling evidence of the start-up entity’s substantial potential for
rapid growth and job creation.” 8 CFR §212.19(b)(2)(iii). Evidence may include the “creation” and
“characteristics” of the jobs that will be created. 82 FR at 5245. As part of the alternative criteria, USCIS
may consider: (i) number of users or customers; (ii) revenue generated by the start-up; (iii) social impact
of the start-up; (iv) national scope of the start-up; (v) positive effects on the start-up’s locality or region; (vi)
success using alternative funding platforms including crowdfunding; (vii) applicant’s academic degrees;
(viii) applicant’s prior success in operating start-ups by patented innovations, annual revenue, job
creation, or other factors; and (ix) selection of the start-up to participate in one or more established and
reputable start-up accelerators or incubators. 82 FR at 5257.
3. Requirements for Re-Parole— 8 CFR §212.19(c)—Parolee will continue to provide a significant public
benefit based on his or her role as an entrepreneur of a start-up and requires the following:
Demonstrate that he or she continues to be an entrepreneur and that the entity continues to be a start-
up and
Establish that: (i) he or she has received at least $500,000 in qualifying investments, qualified
government grants or awards, or a combination of both; (ii) created at least 5 qualified jobs with start-
up; or (iii) reached $500,000 in annual revenue in the U.S. and averaged 20% growth in annual
revenue during initial parole.
3.a. Qualified Job—Qualified job requires full-time employment in the U.S. that has been filled for at least
one year by a qualified employee. The employee must be USC/LPR or other immigrant authorized to be
employed who is not the entrepreneur or his family. An independent contractor is not an employee. Full-
time employment means 35 hours per week and does not include a combination of part-time positions. 8
CFR §§212.19(a)(6)-(8)
3.b. Alternative Criteria—Even if the applicant only partially meets one of the investment, job creation or
annual revenue requirements s/he may in the alternative provide “other reliable and compelling evidence
of the start-up entity’s substantial potential for rapid growth and job creation.” 8 CFR §212.19(c)(2)(iii).
3.c. Ownership Interest—For purposes of initial parole the entrepreneur has to own at least 10% of the start-
up. For re-parole an entrepreneur may possess only at least a 5% interest. During the period of re-parole
he may continue to reduce his interest as long as he maintain some ownership interest.
4. Procedures
4.a. Application Process—I-941 for both parole and re-parole. Biometrics and biometric fee required. If
applicant is in the U.S. at the time the I-941 is approved, she may have to obtain an advance parole (I-
131) to travel. 82 FR at 5243. No parole in place. 82 FR at 5285-86
4.b. Period of Parole—Period of parole is initially for 30 months and re-parole for an additional 30 months.
Approval of initial parole must be approved before applicant appears at port of entry for parole. For re-
parole if entrepreneur is in U.S., the grant shall be considered re-parole. If out of U.S. must appear at port
of entry. Canadians arriving directly from Canada may simply go to the port-of-entry. Canadians not
arriving directly from Canada and all other applicants must first visit a U.S. consulate to obtain a travel
document (e.g., a boarding foil) to appear at the port-of-entry along with the I-941 approval. 82 FR at
5255. Any time spent outside the U.S. during the 5-year period will be counted against the parole period.
82 FR at 5265.
4.c. No Appeal and No Motion to Reopen— 8 CFR §212.19(d)(4). USCIS may consider it on its own motion.
4.d. Three Entrepreneur Limitation Per Start-Up—No more than 3 entrepreneurs based upon the same start-
up. 8 CFR §212.19(f).
4.e. Five-Year Maximum—5 years is the maximum based upon same start-up. 8 CFR §212.19(f). Page 74
4.f. Employment Authorized with Start-Up When Paroled— 8 CFR §212.19(g). Employment for entrepreneur
is incident to status. Entrepreneurial parolee who has timely filed for re-parole also may continue in
employment for 240 days awaiting USCIS decision. 8 CFR §274a.12(b)(37).
5. Spouse and Children— 8 CFR §212.19(h); 82 FR at 5255. Spouse and child must apply on I-131 with
evidence of family relationship. Parole is only for same period as spouse/parent. Spouse eligible for
employment authorization but child is not. Spouse must separately apply for employment authorization on I-
765. It is not limited to the start-up and the spouse may work anywhere. 52 FR at 5263 [“it is not appropriate
or necessary to limit the employment of an entrepreneur’s spouse to that (start-up) entity”].
6. NIVs / Unauthorized Employment / Not Valid Status—An INA §212(d)(5)(A) parole for entrepreneurs is “not
wholly dependent upon an individual’s current immigration status. Unauthorized employment or a prior status
violation will not necessarily preclude an individual from qualifying for parole… However, the fact that an
entrepreneur has worked without authorization, is out of status, or not legally present in the United States
would be considered in determining whether DHS should grant parole under its discretionary authority.” 82
FR at 5264.
6.a. F-1 Student on OPT—USCIS does not foreclose the ability of an F-1 student on OPT from qualifying for
an entrepreneur parole, despite starting a business and raising significant capital, because a person on
OPT “can start a business during his or her OPT period.” 82 FR at 5264
6.b. NIV must depart U.S. and obtain a parole at a U.S. port-of-entry. 82 FR 5264-65.
6.c. Grant of parole does not prevent an entrepreneur from demonstrating NIV intent in the future and does
not preclude obtaining a NIV. 82 FR at 5266. However, an entrepreneur who prior to parole was subject to
the 3/10 year bar remains so.
7. Conditions of Parole— 8 CFR §212.19(i)
7.a. Must maintain household income greater than 400% of poverty guidelines
7.b. USCIS May impose other reasonable conditions
7.c. Material Change—Entrepreneur must immediately report material changes including whether he is no
longer employed by the start-up or ceases to have a qualifying ownership stake. 8 CFR §212.19(j)
(1) Material Change Definition— 8 CFR §212.19(a)(10). “Any change in facts that could reasonably affect
the outcome of the determination…” USCIS includes: (i) any criminal charge; (ii) any complaint in a
judicial or administrative proceeding concerning the entrepreneur or start-up brought by a government
entity; (iii) any settlement, judgment or other legal determination brought by a private individual or
organization if damages exceed 10% of start-up’s current assets; (iv) sale or disposition of all or
substantially all of the start-up’s assets; (v) liquidation, dissolution or cessation of operations; (vi)
voluntary or involuntary bankruptcy; (vii) significant change in ownership and control of the start-up;
and (viii) a cessation of the entrepreneur’s qualifying ownership interest in the start-up or his or her role
in the operations of the start-up. 82 FR at 5254, 5261.
8. Termination of Parole— 8 CFR §212.19(k). May be terminated automatically and without notice if (i) parole
expired; (ii) entrepreneur notifies USCIS that he or she will no longer be employed by the start-up; or (iii) if
the entrepreneur’s parole no longer provides a significant public benefit. If a nonfrivolous application for re-
parole is filed the original parole will not be automatically terminated. If parole is terminated, employment
authorization is automatically revoked. USCIS may also terminate after notice if: (i) the facts or information
contained in the request for parole were not true or accurate; (ii) the entrepreneur failed to timely file or
otherwise comply with the material change reporting requirements; (iii) the entrepreneur is no longer
employed in a central and active role by the start-up or ceased to possess qualifying ownership; (iv) the
entrepreneur otherwise violated the terms and conditions of parole; or (v) parole was erroneously granted. If
termination by notice, entrepreneur will be given 30 days to file rebuttal. 82 FR at 5267. No motion to reopen
or reconsider except USCIS on its own motion may reopen or reconsider termination. Page 75
9. Increase in Revenue and Investment Amount Requirements— 8 CFR §212.19(l). Amounts adjusted every
three years through CPI and the new amounts will apply to all applications filed on or after the beginning of
the fiscal year for which the adjustment is made.
F. Applicants for Admission
1. Generally—The question of admission prior to IIRIRA also turned on whether the person was an applicant for
admission into the U.S. A person who was not an applicant for admission could not be placed in exclusion
proceedings. Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988) [person extradited to U.S. and paroled until
trial not an applicant for admission]. Such persons also had to be given an opportunity to depart voluntarily
before initiating proceedings. U.S. v. Brown, 148 F.Supp.2d 191 (E.D.N.Y. 2001) [failure to give extradited
person the opportunity to depart under Badalamenti was fundamentally unfair]. Similarly, a person
involuntarily removed from the U.S. (other than through deportation) could not be considered an applicant for
admission upon return. Delgadillo v. Carmichael, 332 U.S. 388, 390–91 (1947) [where ship torpedoed and
person taken to Cuba to recuperate his return, no new entry]. However, INA §235(a)(1), 8 USC §1225(a)(1),
provides that a person “present in the United States who has not been admitted or who arrives in the United
States (whether or not at a designated port of arrival and including an alien who is brought to the United
States after having been interdicted in international or United States waters) shall be deemed for purposes of
the Act an applicant for admission.” See also 8 CFR §235.1(f)(3); 8 CFR §1.2. Legacy INS has taken the
position that anyone brought to the U.S. is an applicant for admission regardless of intent and that Matter of
Badalamenti is no longer good law in light of INA §235(a)(1). Memo, Virtue, GC to Cronin, Asst. Comm.
Inspections (HQCOU 70/6.2.17-P), reprinted in 76 Interpreter Releases 471, 474 (Mar. 22, 1999). The BIA
has also held that someone who lawfully enters the U.S. but wishes to leave may be held for removal
proceedings.Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA 1999) [person seeking to leave U.S. within 24
hours of lawful entry held for removal proceedings for 4 years on grounds that Secretary of State determined
his presence would have serious foreign policy consequences].
2. Arriving Alien Defined— 8 CFR §1.2 defines an arriving alien as “an applicant for admission coming or
attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United
States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the
United States by any means, whether or not to a designated port-of-entry, and regardless of the means of
transport.” A person remains an arriving alien even if paroled pursuant to INA §212(d)(5) and even after such
parole is terminated or revoked. However, if the person entered on an advance parole, he will not be treated,
solely by that reason, as an arriving alien under expedited removal.
G. No Departure Means No New Admission—The question of admission is also related to whether a person has
“departed” the U.S. A person who travels on an advance parole has not departed the U.S. for certain purposes.
Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012) [determining that travelling on advance parole does
not constitute a departure triggering the 3/10 year bar]; Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353, 1357
(11th Cir. 2013) [reversed IJ finding of inadmissibility under INA §212(a)(9)(B)(i)(II) based upon Arrabally]; Matter
of ___, St. Paul, Minn. (AAO Oct. 26, 2012), AILA Doc. No. 12102242 [denial of AOS reversed where person re-
entered on advance parole and therefore eligible to adjust]; Memo, Johnson, Sec. DHS, Directive to Provide
Consistency Regarding Advance Parole (Nov. 20, 2014), AILA Doc. No. 14112014 [directing DHS counsel to
issue legal guidance that “in all cases” when a person departs on advance parole she “shall not have made a
‘departure’ within the meaning of section 212(a)(9)(B)(i) of the INA”]. A person who leaves the U.S. but does not
enter another country also does not “enter” the U.S. upon return. Matter of T-, 6 I&N Dec. 638 (BIA 1955).
Accord U.S. v. Yong Jun Li, 643 F.3d 1183 (9th Cir. 2011) [a person who traveled in international waters between
Guam and CNMI did not make an entry into the U.S. because traveling from one part of the U.S. to another does
not constitute an entry]; U.S. v. Ambriz-Ambriz, 586 F.3d 719, 723–25 (9th Cir. 2009) [sustained jury verdict of
person “found in” the U.S. when defendant drove to Canada, was not admitted, and returned to the U.S. border
because he is considered to have never left the U.S.]; U.S. v. Gonzalez-Diaz, 650 F.3d 1239 (9th Cir. 2011)
[same]; Handa v. Crawford, 401 F.3d 1129 (9th Cir. 2005) [person on visa waiver program who was turned away
at Canadian border was not an applicant for admission upon return]; Letter, Cronin, Asst. Comm. Inspections
(CO 235-C) (Feb. 7, 1992), reprinted in 69 No. 12 Interpreter Releases 384, 399 (Mar. 30, 1992) [crew member
does not depart the U.S. simply by sailing out of U.S. waters if he or Page 76 she does not enter a foreign
nation]; Memo, Puleo, Acting Exec. Assoc. Comm. (HQ 245-C) (Nov. 15, 1993), reprinted in 13 AILA Monthly
Mailing 35–37 (Jan. 1994) [a person who leaves the U.S. and is denied admission to Mexico at the border has
not departed the U.S.]. But see Linares-Urrutia v. Sessions, 850 F.3d 477, 481-83 (2d Cir. 2017) [in light of FPR
and Brand X, the court questioned its former decision in Joaquin-Porras v. Gonzales, 435 F.3d 172, 178–80 (2d
Cir. 2006) and remanded to the BIA to determine whether “last arrival” included being rebuffed at the Canadian
border after being held for 4 hours on Canadian soil]; D.E. v. John Doe, 834 F.3d 723 (6th Cir. 2016) [person
who made wrong turn and never entered Canada was subject to a border search when he turned around
because his subjective intent is irrelevant]; U.S. v. Macias, 740 F.3d 96 (2d Cir. 2014) [rejected Ambriz-Ambriz
and finding that person had left the U.S. and when forcibly returned from Canada was not “found in” the U.S.];
Margulis v. Holder, 725 F.3d 785 (7th Cir. 2013) [person stopped “just inside Canadian territory” but not admitted
to Canada nevertheless departed the U.S., should be treated on return as an applicant for admission, and
removal proceeding should be terminated]; U.S. v. Ayala-Ayala, 470 F.Supp.2d 281 (W.D.N.Y. 2007) [person
turned away at Canadian border who then presents himself to immigration at U.S. border cannot be charged
with being “found in” U.S.]. See also Matter of R-D-, 24 I&N Dec. 221 (BIA 2007) [Guinean who left the U.S.,
applied for asylum, stayed in Canada for several years and then was denied, had departed the U.S.,
notwithstanding Reciprocal Agreement with Canada to return individuals to the U.S.].
H. The Constitutional Question—The entry doctrine fiction has always been the basis for determining when and
under what circumstances persons are accorded due process in proceedings. Although IIRIRA ended the
traditional distinction between exclusion and deportation proceedings per se by replacing them with removal
proceedings, the entry doctrine has continuing vitality in regard to whether full constitutional rights are given to
someone if they are in the U.S. even if they were not admitted. Clark v. Martinez, 543 U.S. 371 (2005) [avoiding
constitutional question of indefinite detention of inadmissible aliens and applying the Zadvydas 6-month
limitation on detention post-removal to inadmissible Cuban parolees as a statutory matter].
I. Territorial Waters and Admission—The question of admission also turns in part on crossing into U.S. territory.
In 1988, U.S. territorial waters were extended to 12 miles and the 12-mile limit has been incorporated into DHS
regulations governing the external boundary for enforcement purposes. Presidential Proclamation 5928, 54 FR
777 (Jan. 9, 1989); 8 CFR §287.1(a)(1). This is consistent with U.S. obligations under the U.N. Convention on
the Territorial Sea and the Contiguous Zone, Art. 24 (Apr. 29, 1958), 15 U.S.T. 1606, 1612. However, crossing
into territorial waters may not be sufficient for an immigration entry. Yang v. Maugans, 68 F.3d 1540, 1547–49
(3d Cir. 1995) [INA definition of U.S. does not include territorial waters]; Zhang v. Slattery, 55 F.3d 732, 754 (2d
Cir. 1995); Chen Zhou Chih v. Carroll, 48 F.3d 1331 (4th Cir. 1995); Rodriguez v. Ridge, 310 F.Supp.2d 1242,
1245–46 (S.D. Fla. 2004), [crossing into territorial waters is not an admission unless government brings person
to U.S.]; Matter of G-, 20 I&N Dec. 764, 770 n.5 (BIA 1993) [BIA never held that crossing into territorial waters is
entry]; Matter of Cenatice, 16 I&N Dec. 163 (BIA 1977); Legal Opinion, Dellinger, Acting Asst. Atty. General,
Memoranda on Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters
(Oct. 13, 1993). But see Lazarescu v. U.S., 199 F.2d 898, 900–01 (4th Cir. 1952) [entry into port and harbor of
Baltimore is entry]; Chung v. Reno, 886 F.Supp. 1172 (M.D. Pa. 1995) [extensive discussion of the issue], rev’d
sub nom. Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995)].
J. Admission and Adjustment of Status—The question of admission also arises in the context of adjustment of
status. An AOS is not deemed an entry (even though the grounds of inadmissibility are applicable), Matter of
Adetiba, 20 I&N Dec. 506 (BIA 1992); Matter of Connelly, 19 I&N Dec. 156 (BIA 1984). The plain language of
INA §101(a)(13)(A) provides that admission requires a “lawful entry … into the United States after inspection
and authorization by an immigration officer.” The BIA, nevertheless, has held that adjustment is an admission.
Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014), rev’d on other grounds, Chavez-Alvarez v. U.S. Att’y
Gen., 783 F.3d 478 (3d Cir. 2015) [AOS is admission for purposes of determining inadmissibility and
removability, so the person is deportable for an aggravated felony; he is also ineligible for a §212(h) waiver
because he is not an inadmissible person requesting a stand-alone waiver nor a person in conjunction with a
new AOS; Matter of Rivasreaffirmed; Hanif distinguished]; Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA
2011) [distinguishing Lanier and finding it would be “absurd and contrary to the plain language of the statute” to
hold that a person granted Cuban adjustment was not admitted and therefore not subject to removal]; Matter of
Rodarte, 23 I&N Dec. 905, 908 (BIA 2006) Page 77 [the 10-year bar provision under INA §212(a)(9)(B)(i)(II)
applies to adjustment of status because “the term ‘admission’ generally refers to adjustment of status within the
United States as well as lawful entry at the border”]; Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) Roberts v.
Holder, 745 F.3d 928, 931–34 (8th Cir. 2014) [disagreeing with the 4 circuits having decided the issue and
finding that under Step 2 of Chevron it must defer to the BIA’s interpretation as decided in Matter of Rodriguez
that for §212(h) purposes admission includes AOS]; Spacek v. Holder, 688 F.3d 536, 539-40 (8th Cir. 2012)
[declining to reach issue of AOS in Bracamontes and other cases because respondent adjusted under the
Refugee Act, INA §209(a)(1), 8 USC §1159(a)(1) which requires by its language an “admission”]; Lemus-Losa v.
Holder, 576 F.3d 752, 756–58 (7th Cir. 2009) [agreeing with Rodarte that admission includes AOS]. But see
Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) [in light of nine circuit courts holding that AOS is not an
entry/admission barring INA §212(h) relief for LPR who committed an aggravated felony, the BIA withdrew its
contrary decisions in Matter of E.W. Rodriguez and Matter of Koljenovic and declined to follow the 8th Circuit
decision in Roberts v. Holder]; Medina-Rosales v. Holder, 778 F.3d 1140, 1143-46 (10th Cir. 2015) [followed the
majority of circuits and determined that the bar to 212(h) does not apply to AOS]; Stanovsek v. Holder, 768 F.3d
515 (6th Cir. 2014) [followed Lanier and other circuits in determining that the bar to §212(h) does not apply to
AOS because the bar only applies to LPR at entry and AOS is not an entry]; Negrete-Ramirez v. Holder, 741
F.3d 1047 (9th Cir. 2014) [admission for §212(h) purposes does not include AOS post-admission]; Papazoglou v.
Holder, 725 F.3d 790, 793-94 (7th Cir. 2013) [same]; Husic v. Holder, 776 F.3d 59 (2d Cir. 2015) [joining other
circuits and finding that AOS is not an entry/admission under clear language of INA §212(h) and therefore no
Chevron deference]; Hanif v. U.S. Att’y Gen., 694 F.3d 479, 483-87 (3d Cir. 2013) [same]; Bracamontes v.
Holder, 675 F.3d 380 (4th Cir. 2012) [AOS is not an admission/entry for purposes of the bar to INA §212(h) relief
and person who was admitted as CR, later became LPR, who committed aggravated felony after AOS was not
“admitted” after LPR status and remains eligible for such relief]; Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1367
and n.3 (11th Cir. 2011) [following and expanding Martinez and rejecting Koljenovic and finding that LPRs who
obtained residency through AOS even after EWI are not barred from INA §212(h) relief if convicted of
aggravated felonies because statutory language regarding “admitted” only applies to persons with IVs]; Martinez
v. Mukasey, 519 F.3d 532, 542–45 (5th Cir. 2008) [under the first prong of Chevron and under longstanding
principles construing statutes in favor of persons facing removal, the court rejected Matter of Rosas in
interpreting the exclusion provision of INA §212(h) and concluded that the term “admitted” as used in INA
§212(h) does not bar LPRs who were convicted of aggravated felonies from obtaining relief if they were
adjusted].
See also other interpretations that reject the idea that AOS is an admission. Ortiz-Bouchet v. U.S. Att’y Gen.,
714 F.3d 1353, 1355-56 (11th Cir. 2013) [cannot bring INA §212(a)(7)(A)(i)(I) (lack of documents for admission)
charge for someone not outside the U.S. during AOS]; Marques v. Lynch, 834 F.3d 549 553-62 (5th Cir. 2016)
[where respondent committed marriage fraud to obtain AOS after he lawfully entered, the government could not
seek his deportation under INA §237(a)(1)(A) because that section incorporates INA §212(a)(7) and INA §212(a)
(7) does not apply to a person who seeks AOS only a person seeking entry]; Abdelqadar v. Gonzales, 413 F.3d
668, 672–74 (7th Cir. 2005) [rejecting Matter of Rosas in the context of a commission of a crime of moral
turpitude under INA §237(a)(2)(A)(i) because the 5 years is correctly interpreted to be within 5 years of
admission and not 5 years of adjustment]; Aremu v. DHS, 450 F.3d 578 (4th Cir. 2006) [same; reversing Matter
of Shanu, 23 I&N Dec. 754, 756–59 (BIA 2005) and finding the plain language of §101(a)(13)(A) is contrary to
BIA’s interpretation because AOS is not an admission when the person’s original entry was lawful]; Zhang v.
Mukasey, 509 F.3d 313 (6th Cir. 2007) [5 years is not measured from AOS for purposes of a CIMT committed
within 5 years of admission, because AOS does not constitute an admission for purposes of calculating the time
period]; Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004). It may also arise in the context of relief.
Gomes v. Ashcroft, 311 F.3d 43, 45–46 (1st Cir. 2002) [the term “admission” in IMMACT90 §511(b), which sets
the date for the bar to INA §212(c) relief for a person who has been imprisoned for 5 years or more, applies not
only to the person’s original entry, but also to the date of the §212(c) application]. A facially lawful AOS does not
necessarily mean the person is not inadmissible. See e.g., Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) [a
procedurally lawful admission through AOS even though obtained by fraud and despite being inadmissible at the
time of admission is an admission].
K. Admission Flexibly Applied in Other Contexts—Notwithstanding the statutory definition of admission under
§101(a)(13)(A) as requiring inspection, the courts and the BIA have interpreted the word “admitted” Page 78 in
other contexts to include persons already in the United States. In Garcia-Quintero v. Gonzales, 455 F.3d 1006,
1015–19 (9th Cir. 2006), the court determined that “admitted in any status” for purposes of cancellation for LPRs
included persons who registered in the U.S. for family unity benefits despite the lack of inspection. Similarly in
Gomez v. Lynch, 831 F.3d 652 (5th Cir. 2016) the Fifth Circuit read the regulation terminating temporary status
under amnesty, 8 CFR §245.2(u)(4), as not barring AOS where someone lawfully entered because lawful
admission and status after entry are separate concepts. Also, in Matter of Rosas, 22 I&N Dec. 616, 623 (BIA
1999) the Board held that a person who entered EWI was still admitted when he attained LPR status. In Matter
of Alyazji, 25 I&N Dec. 397 (BIA 2011) the Board modified its decision in Matter of Shanu that “any” admission
triggered removability under INA §237(a)(2)(A)(i) for committing a CIMT within five years after the date of
admission. Instead the BIA reasoned that the five years would be counted from the last admission by virtue of
which the person was then in the U.S. and not any readmission, extension of existing admission, or new
admission (AOS) from within the U.S. 25 I&N Dec. at 406-07. This would be so even if the person overstayed
after a lawful entry [“an overstay or violation would have no effect on our analysis] 25 I&N Dec. at 406-07 and
nn. 6, 8; Sijapati v. Boente, 848 F.3d 210 (4th Cir. 2017) [reading Alyazji to mean any admission from outside the
U.S. and affirming deportation under Chevron]. See also Totimeh v. U.S. Att’y Gen., 666 F.3d 109, 116-18 (3d
Cir. 2012) [for purposes of determining deportability for committing a CIMT within 5 years of admission,the first
lawful entry and not the date of AOS counts]. But see Matter of V-X-, 26 I&N Dec. 147, 150-52 (BIA 2013) [the
grant of asylum in the U.S. is not an admission and a parolee granted asylum is subject to grounds of
inadmissibility]. For a more detailed discussion, see Chapter 6, ¶ XII.A.15 (p.1387).
II. ADMISSION AND LAWFUL PERMANENT RESIDENTS (LPRs)

A. Traditional Fleuti Doctrine—Traditionally, a lawful permanent resident (LPR) was not deemed to make a new
admission upon his or her return to the U.S. from a trip abroad if the trip was “innocent, casual, and brief” and
not “meaningfully interruptive” of the LPR’s status. Rosenberg v. Fleuti, 374 U.S. 449 (1963). The distinction is
significant for an LPR who would not be subject to removal from the U.S. but who might be inadmissible. For
example, in Fleuti, a homosexual LPR would have been inadmissible if his return was considered a request for a
new admission because homosexuality was a basis for inadmissibility under former INA §212(a)(4), but not a
basis for removal. However, the Court found that Fleuti’s trip was brief, casual, and innocent, and did not
meaningfully interrupt his LPR status, and therefore treated him as if he had never left the U.S. There have been
numerous cases defining “brief, casual, and innocent.” See, e.g., Selimi v. INS, 312 F.3d 854, 859–60 (7th Cir.
2002) [LPR involved in smuggling his wife, children, and cousin, trip was not innocent]; Carbajal-Gonzalez v.
INS, 78 F.3d 194 (5th Cir. 1996) [brief trip to Mexico for party was innocent]; Castrejon-Garcia v. INS, 60 F.3d
1359 (9th Cir. 1995) [trip for 8 days to obtain a visa did not interrupt stay in suspension case]; Biggs v. INS, 55
F.3d 1398 (9th Cir. 1995) [obtaining fraudulent residency was not an innocent trip]; Rosendo-Ramirez v. INS, 32
F.3d 1085, 1090–94 (7th Cir. 1994) [EWI is separate charge, Fleuti inapplicable]; Leal-Rodriquez v. INS, 990
F.2d 939, 943–48 (7th Cir. 1993) [EWI is meaningfully interruptive of status]; Molina v. Sewell, 983 F.2d 676, 678
(5th Cir. 1993) [temporary departure of LPR during proceedings is not meaningfully interruptive]; Hernandez-Luis
v. INS, 869 F.2d 496 (9th Cir. 1989) [voluntary departure is meaningfully interruptive]; Jubilado v. INS, 819 F.2d
210 (9th Cir. 1987) [3-month trip with family is not meaningfully interruptive]; DeOliviera v. INS, 873 F.Supp. 338
(C.D. Cal. 1994) [4 months out due to airline strike and pregnancy was not meaningfully interruptive]; Hamaya v.
McElroy, 797 F.Supp. 186, 188 (E.D.N.Y. 1992) [10-month trip not brief].
B. New Definition of Admission for LPRs—Under INA §101(a)(13)(C), an LPR will not be regarded as seeking a
new admission unless he or she: (1) abandoned or relinquished LPR status; (2) has been absent from the U.S.
for a continuous period in excess of 180 days; (3) has engaged in illegal activity after having departed the U.S.;
(4) has departed from the U.S. while under legal process seeking removal of the LPR from the U.S., including
removal proceedings and extradition proceedings; (5) has committed a criminal offense under INA §212(a)(2),
unless granted INA §212(h) or INA §240A(a) (cancellation of removal) relief; or (6) is attempting to enter EWI or
has not been admitted. See IFM 13.4. In Vartelas v. Holder, 566 U.S. 257, 275 nn. 11 & 12 (2012), the Court
noted that the term “committed an offense” under INA §101(a)(13)(C)(v) when given a “straightforward reading”
can only apply to an LPR “who has been convicted of an offense under [INA §212(a)(2)] (or admits to one)”
because an officer at the border “would not call into session a piepowder court to entertain a plea or conduct a
trial.” But see Page 79 Munoz v. Holder, 755 F.3d 366 (5th Cir. 2014) [a subsequent conviction of a crime of an
LPR who was paroled into U.S. for prosecution can be used to determine whether the LPR was an applicant for
admission and therefore inadmissible for committing a CIMT]; Gonzaga-Ortega v. Holder, 736 F.3d 795, 801-04
(9th Cir. 2013) [distinguishing Vartelas as applicable to section (C)(v) and not section (C)(iii)].The Board has
interpreted INA §101(a)(13)(C)(iii) regarding “illegal activity” to include any activity after departing the U.S. and
before reentering after inspection, including conduct at the port of entry. Matter of Guzman Martinez, 25 I&N
Dec. 845 (BIA 2012) [attempt to bring an undocumented juvenile into the country would trigger the “illegal
activity” provision prohibiting readmission of an LPR]. But an LPR who does not fall under any of the exceptions
to INA §101(a)(13)(C) cannot be charged as an arriving alien in removal proceedings solely because the
government asserts he obtained his residency unlawfully. Matter of Pena, 26 I&N Dec. 613 (2015) [plain
language of §101(a)(13)(C) and prior treatment under Fleuti disposes of any claim that a person who does not
fall under one of the exceptions could be treated as an arriving alien]. But see Kim v. Holder, 560 F.3d 833, 838
(8th Cir. 2009) [LPR who obtained status by fraud was an arriving alien because he was not lawfully admitted for
permanent residence].
C. Continuing Validity of Fleuti? —Whether Fleuti has been overturned or modified by the enactment of INA
§101(a)(13) has been addressed in a number of cases. Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997)
[in detention context, Fleuti no longer requires the admission of an LPR whose trip was brief, casual and
innocent but who had a conviction that would bar him under INA §212(a)(2)]; Heredia v. Sessions, 865 F.3d 60,
64-65 (2d Cir. 2017) [IIRIRA did end Fleuti where LPR who had committed drug crime was treated as an arriving
alien due to INA §101(a)(13)(C)(v)]; Othi v. Holder, 734 F.3d 259 (4th Cir. 2013) [post-Vartelas rejected both
statutory and due process as applied constitutional arguments that Fleuti was still effective]; De Vega v.
Gonzales, 503 F.3d 45, 48–49 (1st Cir. 2007) [Fleuti irrelevant to the legal determination under INA §101(a)(13)
(C)]; Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) [under Chevron deference following Matter of Collado-
Munoz, INA §101(a)(13)(C) abrogated the Fleuti doctrine]; Malagon De Fuentes v. Gonzales, 462 F.3d 498,
501–05 (5th Cir. 2006) [IIRIRA superseded the Fleuti doctrine and the decision cannot be read to create a
constitutional right]; Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003) [Congress abolished the Fleuti doctrine in
passing INA §101(a)(13)(C); upholding Matter of Collado-Munozon Chevron deference grounds]; Ferraras v.
Ashcroft, 160 F.Supp.2d 617, 623 (S.D.N.Y. 2001) [treating returning LPR as arriving alien for detention
purposes is constitutional post-Zadvydas].The statute has been upheld in the face of an equal protection
challenge. Mejia-Rodriguez v. Holder, 558 F.3d 46, 49–50 (1st Cir. 2009) [under rational basis review a returning
LPR may be treated differently than an LPR who never left]. The Supreme Court, however, in Vartelas v. Holder,
566 U.S. 257, 262 n.2 (2012) noted that whether INA §101(a)(13)(C) has abolished Fleuti is an open question.
See also Matter of Pena, 26 I&N Dec. 613, 617–18 n.8 (2015) [agreeing it remains an open question]. A
returning LPR may only be entitled to the presumption of being a returning resident and not an arriving alien
when he does not fall within the 6 categories named above if he or she was lawfully admitted to permanent
residency in the first place.
D. No Retroactive Application of INA §101(a)(13)(C)—INA §101(a)(13)(C) may not be applied retroactively to

persons who were convicted or engaged in acts prior to IIRIRA (Sept. 30, 1996) that now affect their
admissibility. Vartelas v. Holder, 566 U.S. 257 (2012) [finding that INA §101(a)(13)(C)(v) does not apply
retroactively to a person who was convicted of a crime prior to IIRIRA’s effective date thereby permitting the LPR
to travel pursuant to Fleuti]. The Court in Vartelas also acknowledged that the retroactivity analysis did not turn
on reliance. Citing to the Third Circuit’s decision in Ponnapula v. Ashcroft, 373 F.3d 480, 491 (3d Cir. 2004) the
Court noted that the presumption that law does not apply retroactively would be a strange presumption that
arises only on a showing of actual reliance. The Court reasoned that: “While the presumption against retroactive
application of statutes does not require a showing of detrimental reliance … reasonable reliance has been noted
among the ‘familiar considerations’ animating the presumption… Although not a necessary predicate for
invoking the antiretroactivity principle, the likelihood of reliance on prior law strengthens the case for reading a
newly enacted law prospectively.” Vartelas, supra,566 U.S. at 273 (2012); Centurion v. Sessions, 860 F.3d 69
(2d Cir. 2017) [statute may not be retroactively applied to person who committed a drug offense prior to IIRIRA
despite being convicted after].
E. Application of Fleuti to Non-LPRs—Following IIRIRA, a question remained as to whether Fleuti could be

applied to non-LPRs. In light of Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771, 779 n.6 (BIA 2012) [an AOS
applicant traveling on an advance parole is not deemed to have departed the U.S.], Page 80 the issue may be of
little consequence. (For a more detailed discussion, see this section in the 14th and prior editions of this book.)
F. Burden of Proof—DHS has the burden of proving inadmissibility of a returning LPR. Landon v. Plasencia, 459
U.S. 21 (1982) [returning resident entitled to due process protections]; Molina v. Sewell, 983 F.2d 676, 678 (5th
Cir. 1993); Centurion v. Holder, 755 F.3d 115, 118-20 (2d Cir. 2014) [DHS had burden by clear and convincing
evidence and minor confusion in criminal record regarding drug charge did not compel a different result than
conviction for possession of cocaine]; Matter of Sosa, 15 I&N Dec. 572 (BIA 1976). DHS also bears the burden
of proving by clear and convincing evidence that a returning LPR is an applicant for admission and therefore
subject to the inadmissibility grounds of removal. Matter of Rivens, 25 I&N Dec. 623, 624-27 (BIA 2011).
[government bore burden in case involving INA §101(a)(13)(C)(v) regarding whether respondent committed a
crime under INA §212(a)(2)]. The Sixth Circuit has found that it is “clear, unequivocal,and convincing” evidence
because neither INA §240(c)(3)(A) specifying the standard for deportable aliens, nor INA §240(c)(2)(A)
specifying the standard for immigrants seeking admission is applicable to returning resident. Ward v. Holder, 733
F.3d 601 (6th Cir. 2013) [the Woodby standard is applicable and “clear, unequivocal, and convincing” is a higher
standard than “clear and convincing”]. However, in Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012), the
BIA determined that the government may prove application of §101(a)(13)(C) at the time of the removal hearing
and need not prove it at the border when LPR is paroled into the U.S. for prosecution. See also Munoz v. Holder,
755 F.3d 366 (5th Cir. 2014) [a subsequent conviction of a crime of an LPR who was paroled into U.S. for
prosecution can be used to determine whether the LPR was an applicant for admission and therefore
inadmissible for committing a CIMT]. But see Doe v. U.S. Att’y Gen., 659 F.3d 266, 269-74 (3d Cir. 2011) [for
purposes of paroling LPR into country under statute under subsection (v), the decision must be made at the
border but the AG need only demonstrate by “probable cause” that the LPR “committed” a criminal offense]; but
see Vartelas, supra, regarding proving commission of a crime only through a conviction or admission; Sandoval-
Loffredo v. Gonzales, 414 F.3d 892 (8th Cir. 2005) [addressing but not deciding who has the burden;
government established by clear, convincing, and unequivocal evidence that the LPR engaged in unlawful
activity under §101(a)(13)(C)(ii) in facilitating his brother’s illegal entry]; Molina v. Sewell, supra [applicant bears
the burden to prove he comes within the statutory definition of lawful admission].
The application of INA §101(a)(13)(C)(v) will require that DHS prove a criminal conviction or obtain an
admission. Vartelas, supra, at 1492 nn.11–12. Cf. Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. 2004)
[whether a returning LPR can be found inadmissible for making a false claim to citizenship turns on whether he
committed a CIMT and is therefore inadmissible and subject to §101(a)(13)(C). Where BIA failed to make that
finding, the court reversed]. INA §101(a)(13)(C)(v), in the view of one circuit, may also bar the 7-year continuous
residence requirement for cancellation where LPR left the U.S. Bakarian v. Mukasey, 541 F.3d 775, 784 (7th Cir.
2008) [treating returning LPR as subject to §101(a)(13)(C)(v) thereby breaking period of continuous residence].
Proving admissibility under §101(a)(13)(C) does not bar the government from challenging AOS in a subsequent
removal proceeding. Matter of Taveras, 25 I&N Dec. 834 (BIA 2012), aff’d, Taveras v. U.S. Att’y Gen., 731 F.3d
281 (3d Cir. 2013) [IJ reversed for granting AOS based upon theory that under §101(a)(13)(C)(v) an LPR’s
previous grant of cancellation precluded inadmissibility for his conviction for possession of crack cocaine]
G. LPR Return Without Proper Documents—If LPR returns without proper documents after temporary absence
abroad and good cause exists for the failure to present an unexpired immigrant visa, permanent resident card,
or reentry permit, he may file an application for a waiver at the port of entry on an I-193 form. Waivers are not
adjudicated in advance and the decision to permit the waiver is at the discretion of the port director. Minutes,
AILA-CBP Liaison Meeting (Nov. 21, 2014) at 16-17, AILA Doc. No. 15020541. If his card was lost or stolen, and
he has been absent less than one year, he may file an I-90 for a replacement card, rather than a waiver
application. 8 CFR §211.1(b)(3); IFM 13.1-.4.
H. LPR Cannot Be Charged as Arriving Alien Solely Because of Claim He Obtained His LPR Status
Unlawfully—Matter of Pena, 26 I&N Dec. 613 (2015) [a returning LPR cannot be charged as an arriving alien or
subject to inadmissibility under INA §101(a)(13)(C) where it is alleged he obtained his LPR status unlawfully and
he does not fall within any of the exceptions of §101(a)(13)(C)]. Page 81
III. GROUNDS OF INADMISSIBILITY, INA §212(a) [8 USC §1182(a)] —

CLASSES OF PERSONS INELIGIBLE FOR VISAS AND ADMISSION
A. Health-Related Grounds
INA §212(a)(1), 8 USC §1182(a)(1); 22 CFR §40.11; 42 CFR §34.2(d); 9 FAM 302.2; 8 USCIS-PM, Pt. B and 9
USCIS-PM, Pt. C.
1. Class A and Class B Conditions—Class A conditions are ones that render a person inadmissible and
ineligible for a visa: (i) communicable disease of public health significance per HHS regulation; (ii) a failure to
present documentation of having received vaccinations against vaccine-preventable diseases; (iii) present or
past physical or mental disorder with associated harmful behavior or harmful behavior that is likely to recur;
or (iv) drug abuse or addiction. Class B conditions are defined as physical or mental health conditions,
diseases or disability serious in degree or permanent in nature that, while not a ground for inadmissibility,
represents a departure from normal health or well-being that may be significant enough to: (i) interfere with
the applicant’s ability to care for himself, to attend school or to work; or (ii) require extensive medical
treatment or institutionalization in the future. 8 USCIS-PM, Pt. B, Ch. 2 ¶B. For inadmissibility determination
see Id. at Chap. 11. In determining Class A or B conditions the CDC is consulted and they will review the I-
601 waiver and medicals to determine if there is: (1) a danger to the public health of admission; (2) a possible
spread of infection; and (3) complete financial arrangement for payment of the applicant’s care. USCIS,
Adjudicating I-601 Waivers (Aug. 2015) at 17, AILA Doc. No. 15082741a.
2. Communicable Disease of Public Health Significance
INA §212(a)(1)(A)(i), 8 USC §1182(a)(1)(A)(i); 42 CFR §§34.1-.8; 9 FAM 302.2-5; 73 FR 58047–58 (Oct. 6,
2008); 81 FR 4191-4206 (Jan. 26, 2016); 8 USCIS-PM, Pt. B, Ch. 6
2.a. An alien who is determined (in accordance with HHS regulations) to have a communicable disease of
public health significance. The following communicable diseases are considered of public health
significance—(i) quarantinable diseases designated by Presidential Executive Order under the Public
Health Services Act, Sec. 361(b); (ii) communicable diseases that may pose a public health emergency of
international concern and for which the Director of the CDC has determined a threat exists for importation
into the U.S.; (iii) diseases that meet the criteria of a public health emergency of international concern,
which require notification to the World Health Organization (WHO); and (iv) specific designated diseases:
gonorrhea, Hansen’s disease (leprosy) (infectious), syphilis (infectious stage), and tuberculosis (active).
42 CFR §34.2(b); 9 FAM 302.2-5(B)(1). HIV was removed from the list 74 FR 56547–62 (Nov. 2, 2009),
but a public charge issue may still remain. 9 FAM 302.2-3(G)–(U); 302.2-5(B)(2)(c). See also in this part
“Persons Likely to Become a Public Charge,” ¶ B.1 (p.88), infra. Notification to WHO is required if there is
a single case of certain communicable diseases or where an occurrence of a disease may constitute a
public health emergency of international concern. 42 CFR §§34.2(b)(2)(i)–(ii). See also International
Health Regulations (IHR) of WHO defining public health emergency of international concern as an
extraordinary event which is determined: (i) to constitute a public health risk to other member states
through the international spread of disease and (ii) to potentially require a coordinated international
response. 73 FR 58047, 58050. WHO also lists “single case” notification at Annex 2 of the IHR. 73 FR at
58051 Additional diseases that are included in the Presidential Executive Order and are therefore now a
basis for inadmissibility include: cholera, diphtheria, plague, smallpox, yellow fever, viral hemorrhagic
fevers, and SARS. 73 FR at 58048. The WHO requires notification if a single case of the following exists
and they are therefore now on the HHS/CDC list as a basis for inadmissibility: smallpox, poliomyelitis from
wild-type poliovirus, pandemic influenza, and SARS. The medical screening of people overseas may
depend on whether WHO has declared a condition a Public Health Emergency of International Concern.
See e.g., CDC, Addendum to Technical Instructions for Panel Physicians for Vaccinations: Technical
Instructions for Polio Vaccination for Applicants for U.S. Immigration (July 14, 2014), reprinted in 91 No.
29 Interpreter Releases 1308, 1333-35 (July 28, 2014) [designating certain countries exporting wild
poliovirus, or infected with it but not currently exporting it, or where applicants have been in an exporting
or infected country, and requiring those applicants to show documentation of receipt of a dose of oral
vaccine within 12 months or receive the dose from the panel physician]. However, a chest radiograph
examination Page 82 for tuberculosis and serologic testing for syphilis shall be required as part of the
examination for: (i) applicants for IVs; (ii) F-1s, M1s, J-1s, and other NIVs that a consular officer
designates; (iii) applicants for refugee status; (iv) applicants for AOS; and (v) DHS-required medical
examinations in connection with a determination of admissibility. 42 CFR §34.3(e). And the CDC now
mandates testing for gonorrhea. Cable, DOS, 16-State-93130 New Gonorrhea Testing Requirements for
Visa Applicants (Aug. 19, 2016), AILA Doc. No. 16082302; CDC, Technical Instructions for Gonorrhea for
Civil Surgeons, reprinted in 93 No. 28 Interpreter Releases Art. 6 and pp.31-34 (July 25, 2016); USCIS,
Guidance to Civil Surgeons Regarding Form I-693 Gonorrhea Testing Requirement (Mar. 22, 2017), AILA
Doc. No. 17032203 [test for 15 years of age or older but refugees, derivative asylees, and K & V NIVs and
under 15 not tested unless history or reason to suspect]. Most persons seeking an IV or AOS regardless
of age are required to have a TB skin test. 42 CFR §34.3(e)(3). Children under 15 are exempt from the
chest radiograph unless they have symptoms, a history of tuberculosis, or possible exposure to it.
Children under 15 are also exempt from the serologic testing for syphilis unless there is reasons to
suspect infection. 42 CFR §§34.3(e)(2)(i)–(iv). Also, applicants seeking AOS are not required to take a
chest radiograph unless they test positive for tuberculosis. 42 CFR §34.3(e)(2)(iv).
2.b. Risk-Based Approach—HHS/CDC have now gone to a risk-based approach to determine when certain
diseases listed by the WHO that are not “single case” notification cases should be listed as requiring
inadmissibility. The risk-based approach is also used to determine when additional screening and testing
in a particular geographic area is necessary for diseases designated by Presidential Executive Order or
the WHO. 42 CFR §§34.3(c), (d)(1); Cable–DOS–117586 (Nov. 5, 2008), AILA Doc. No. 08112533. The
criteria (medical and epidemiological factors) that HHS/CDC uses in the risk-based approach for
additional designations and/or additional screenings/testing include: (i) the seriousness of the disease’s
public health impact; (ii) whether the emergence of the disease was unusual or unexpected; (iii) the risk of
the spread of the disease in the U.S.; (iv) the transmissibility and virulence of the disease; (v) the impact
of the disease at the geographic location of medical screening; and (vi) other specific pathogenic factors
that would bear on a disease’s ability to threaten the health security of the U.S. 42 CFR §34.3(d)(2). The
risk-based approach will only be applied to medical examinations outside the U.S. and applicants for AOS
in the U.S. will not be subject to additional screening or testing using the risk-based approach. 73 FR at
58051–52; 81 FR at 4196. Additional screening and testing under the risk-based approach will continue
for certain diseases until HHS/CDC determine the particular situation does not warrant continued
designation based upon factors such as the “results of disease investigations; response efforts; the
effectiveness of containment and control measures; and the current determination or termination of the
public health emergency.” 73 FR at 58052. Subject to the risk-based approach and screening and testing,
HHS/CDC have also added the following illnesses as a basis for inadmissibility: cholera, pneumonic
plague, yellow fever, viral hemorrhagic fevers (Ebola, Lassa, Marburg); West Nile fever; and other
diseases that are of special national or regional concern (e.g., dengue fever, Rift Valley fever, and
meningococcal disease). 73 FR at 58051.
2.c. HIV—In Haitian Ctrs. Council v. Sale, 817 F.Supp. 336 (E.D.N.Y. 1993), applicants for asylum who were
HIV-infected successfully challenged their continued detention. Congress no longer mandates that the
Secy. of HHS designate HIV infection as a communicable disease of public health significance. Tom
Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria
Reauthorization Act of 2008, PL 110-293, §305. HIV was removed from the list. 74 FR 56547–62 (Nov. 2,
2009). 8 USCIS-PM, Pt. B, Ch. 6 ¶A.2 and 9 USCIS-PM, Pt. C, Ch. 2 ¶B; 9 FAM 302.2-5(B)(2).
2.d. Medical Examinations—Examinations only valid for 6 months or less (3 months based upon the
tuberculosis evaluation). 9 FAM 302.2-3(C); Cable, DOS, 15-STATE-15824, CDC Revisions to Visa
Medical Examination Validities (Feb. 15, 2015), AILA Doc. No. 15021900.
2.e. Procedure—DOS cannot find a person medically inadmissible without a report from a panel physician. 9
FAM 302.2-3(F)(3)(c). The panel physician cannot determine inadmissibility. 9 FAM 302.2-3(E)(1)(b).
Page 83
2.f. Waiver—INA §212(g)(1), 8 USC §1182(g)(1); 8 CFR §212.7(a)-(b). 8 USCIS-PM, Pt. B, Ch. 12 and 9
USCIS-PM, Pt. C, Ch. 2. DHS may waive inadmissibility under INA §212(a)(1)(A)(i) if the alien is the
spouse, unmarried son or daughter or minor unmarried lawfully adopted child of a USC, LPR, or a person
issued an immigrant visa, or the alien has a son or daughter who is a USC, LPR, or a person issued an
IV. A VAWA self-petitioner, as defined at INA §101(a)(51) is also covered. Service policy in regard to
waiver explained in Memo, Aleinikoff, Exec. Assoc. Comm., HQ 212.3-P (Sept. 6, 1995), reprinted in 72
No. 38 Interpreter Releases 1347–54 (Oct. 2, 1995). DHS guidelines for waivers are at 9 USCIS-PM, Pt.
C and Memo, Williams, Ex. Assoc. Comm. Field Operations, HQ 70/21/1.1-P, AD 0103 (Oct. 17, 2002),
AILA Doc. No. 03031763; USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 112, AILA Doc. No.
15082741a [must show that: (i) danger to public health is minimal; (ii) possibility of spread of infection is
minimal; and (iii) there is complete financial arrangement for cost of care]. CDC review is necessary
before making a final decision but its review does not constitute waiver approval. CDC’s review is to see
that the applicant: (i) has been appropriately diagnosed with an inadmissible health-related condition; and
(ii) has identified an appropriate health care provider in the U.S. USCIS, Adjudicating I-601 Waivers (Aug.
2015) at 117, AILA Doc. No. 15082741a.
3. Vaccinations
INA §212(a)(1)(A)(ii), 8 USC §1182(a)(1)(A)(ii); 22 CFR §40.11; 9 FAM 302.2-6; 8 USCIS-PM, Pt. B, Ch. 2 ¶B
and Ch. 3 ¶A; and 9 USCIS-PM, Pt. C, Ch. 3; Cable, DOS 10-State-010379, AILA Doc. No. 10021690.
3.a. A person who seeks an IV or AOS and has failed to present documentation of vaccinations against
vaccine-preventable diseases—including, at least: mumps, measles, rubella, polio, tetanus and
diphtheria, pertussis, Haemophilus influenza type B, and hepatitis B, and any other vaccination
recommended by CDC’s Advisory Committee for Immunization Practices (ACIP)—is inadmissible, 42
CFR §34.2(d)(2), as it is now listed as a Class A Medical Condition. 8 USCIS-PM, Pt. B, Ch. 2 ¶B and Ch.
3 ¶A; An updated list of ACIP vaccine recommendations may be found at
http://www.cdc.gov/immigrantrefugeehealth/exams/diseases-vaccines-included.html. However, in regard
to ACIP-recommended vaccines, it will only require those for which there is public health need at the time
of the IV/AOS where: (i) the vaccine is age appropriate and (ii) the vaccine must protect against a disease
that has the potential to cause an outbreak or to protect against a disease that has been eliminated or is
in the process of being eliminated in the U.S. 74 FR 58634–38 (Nov. 13, 2009) [removed HPV and Zoster
from the list]. 9 FAM 302.2-6(B)(1)(c) [removed HPV and Zoster]. This section contains an exception for
adopted children who are 10 or younger, as long as the adoptive parent(s) sign an affidavit stating they
will obtain the vaccinations for the child within 30 days of entry into the United States. INA §212(a)(1)(C);
See PL 105-73; 9 USCIS-PM, Pt. B, Ch. 6 ¶G; 42 CFR §34.2(d)(2); 81 FR at 4194, 4197. The section
does not apply to NIVs. K visa applicants are subject to an assessment of whether they have received
vaccinations, but cannot be denied for noncompliance because the requirement only applies to IVs. 9
FAM 302.2-6(B)(3). Refugees, asylees, registry applicants, North American Indians born in Canada, and
children of returning residents are not subject to the requirements. 8 USCIS-PM, Pt. B, Ch. 3 ¶A. The
Centers for Disease Control and Prevention (CDC) have set forth instructions for the medical examination.
CDC, Addendum to the Technical Instruction for Medical Examination of Aliens in the United States, April
1997, reprinted in 75 No. 13 Interpreter Releases 472,481 (Apr. 6, 1998). CDC information is also
available online at http://www.cdc.gov/ImmigrantRefugeeHealth (see “Technical Instructions” link).These
instructions change from time to time. See e.g., Dec. 18, 2013 update to the 2010 Technical Instructions
for Physical and Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders
accessible from the “Technical Instructions” page noted above.
3.b. Waiver—[INA §212(g)(2), 8 USC §1182(g)(2); 8 CFR §212.7(a)-(b); 8 USCIS-PM, Pt. B, Ch. 6, B and 9
USCIS-PM, Pt. C, Ch. 3; 9 FAM 302.2-6(D)]. Waiver is available where: (1) person received vaccination
but does not have documentation; (2) vaccination would not be medically appropriate for example where it
is contraindicated, the woman is pregnant or the person has an immuno-compromised condition; (3)
regulations do not require vaccination because of person’s religious beliefs or moral convictions; (4) there
is a nationwide shortage of the vaccine or if the person is overseas it is not available. The legislative
history provides for a broad interpretation of the waiver to include its use where the person is: (A) ”unable
to receive a safe dosage or Page 84 vaccine in the country of nationality”; (B) “a child who is required to
complete a series of vaccinations over a course of time and has not had a reasonable opportunity to
complete that course”; or (C) an active member of a religious faith that notifies the AG that such
vaccination would contradict the fundamental tenets of the religion. H.R. Conf. Rep. 828, 104th Cong., 2d
Sess. at 226 (1996). To qualify for a religious objection waiver, the applicant must show: (1) he or she is
opposed to vaccinations in any form; (2) the objection is based on religious belief or moral conviction; and
(3) the belief or conviction is sincere. Memo, Virtue, Acting Exec. Assoc. Comm. (Sept. 29, 1997),
reprinted in 74 No. 42 Interpreter Releases 1682, 1687–90 (Nov. 3, 1997). 9 USCIS-PM, Pt. C, Ch. 3 ¶E
[officer must determine “sincerity” of the opposition and that it is tied to “religious/moral convictions”]. The
religious waiver may also be filed for an adopted child. 9 FAM 302.2-6(D)(1)(d)(4). An applicant may also
receive a waiver because the vaccine is not medically appropriate due to: (1) age; (2) contraindication; (3)
insufficient time interval; (4) seasonality of vaccination (e.g., flu shot); (4) pregnancy or an immune-
compromised condition, or (5) unavailability either due to nationwide vaccination shortage in the U.S. or
not readily available if vaccine is abroad. 9 FAM 302.2-6(D)(1)(c); 8 USCIS-PM, Pt. B, Ch. 6 ¶B; Memo,
Yates, Deputy Exec. Assoc. Comm. Immigration Services Division, HQADN 70/21.1.1 (June 25, 2002),
AILA Doc. No. 02070240; Cable, Albright, Secy. of State, 97-State-071637 (Apr. 17, 1997), reprinted in 74
No. 17 Interpreter Releases 749–56 (May 5, 1997); Memo, Virtue, Acting Exec. Comm. Programs, INS,
HQ 5015.12, 96 Act. 027 (Apr. 10, 1997), AILA Doc. No. 97041091. Cable, DOS 10-State-010379, ¶ 9,
AILA Doc. No. 10021690 [for medically appropriate waivers, DOS looks to the panel physician]. USCIS
has given consular officers the right to grant the waivers in IV cases. Id. The waiver is submitted on an I-
601 form. All I-601 waivers are filed in the U.S. unless: (1) the applicant resides in Cuba; or (2) the
applicant resides in a country where there is an international USCIS office and the FOD in the office is
satisfied that there are “exceptional and compelling circumstances that require the immediate filing” such
as medical emergencies, threats to personal safety, aging-out issues, and adoptions where petitioner has
an immediate need to depart. The office can also accept an I-290B if the applications are denied. Policy
Memo, USCIS, PM-602-0062.1, Exceptions for Permitting the Filing of Form I-601 and Any Associated
Form I-212, (Nov. 30, 2012), AILA Doc. No. 12120568. DHS guidelines for waivers are at 9 USCIS-PM,
Pt. C and Memo, Williams, Exec. Assoc. Comm. Field Operations, HQ 70/21/1.1-P, AD 0103 (Oct. 17,
2002), AILA Doc. No. 03031763. The I-601 waiver is only necessary where the failure to obtain
vaccinations is due to a religious or moral objection. An I-601 is not needed where the waiver arises
because the vaccine is not medically appropriate, age appropriate, does not exist, or where the person
received the vaccine but failed to present the documentation. USCIS, Adjudicating I-601 Waivers, AILA
Doc. No. 15082741a [includes extensive training manuals and guidelines for USCIS officers]; 9 USCIS-
PM, Pt. C, Ch. 3 ¶¶A, C, D; 9 FAM 302.2-6(D)(1)(a)(2); Cable, DOS, 10-State-010379 (Feb. 2010),
reprinted in 87 No. 6 Interpreter Releases 322, 325 (Feb. 8, 2010) [blanket waiver where panel physician
determines that vaccine is not medically appropriate or where vaccines are not routinely available]. CDC
does not need to be consulted for a waiver under this section. USCIS, Adjudicating I-601 Waivers (Aug.
2015) at 117, AILA Doc. No. 15082741a.
3.c. Refugees and asylees are not required to comply with the vaccination requirements, because refugees
are not admitted as immigrants and asylees are in the U.S. However, when refugees or asylees seek to
adjust, they are subject to the vaccination requirements. 8 CFR §209.1; 8 USCIS-PM, Pt. B, Ch. 3 ¶B.5-6.
They are also eligible for a broader waiver under INA §209(c) than the regular vaccination waiver. Memo,
Bednarz, Acting Assoc. Comm. Adjudications (HQ 70/21.1.1, 96 Act 074) (July 30, 1998), reprinted in 75
No. 33 Interpreter Releases 1193, 1203–07 (Aug. 31, 1998). Refugees and asylees seeking waivers
under INA §209(c) or the religious or moral waiver under INA §212(g)(2)(C) shall file Form I-602. Page 85
4. Physical or Mental Disorder
INA §212(a)(1)(A)(iii), 8 USC §1182(a)(1)(A)(iii); 42 CFR §§34.2(d)(2), (l)(2), (n), (p); 9 FAM 302.2-7; Cable,
10-State-057660 (June 2010), AILA Doc. No. 10070165; 8 USCIS-PM, Pt. B, Ch. 7; 9 USCIS-PM, Pt. C, Ch.
4
4.a. Applicable to aliens who are determined (in accordance with HHS regulations in consultation with DHS):
To have a current physical or mental disorder and behavior associated with the disorder that may
pose, or has posed, a threat to the property, safety, and welfare of the person or others; or
To have had such disorder and associated behavior in the past and it is likely to recur or to lead to
other harmful behavior.
4.b. Defining Physical and Mental Health Disorders—The DOS defines physical and mental disorder and
harmful behavior. 9 FAM 302.2-7(B)(2)(a).
(1) Physical Disorder—Clinically diagnosed medical condition where the focus of attention is physical
manifestations. Includes only medical conditions listed in World Health Organization’s Manual of
International Classification of Diseases
(2) Mental Disorder—Health conditions that are characterized by alterations in thinking, mood, or
behavior (or a combination of the 3). Must be mental disorder listed in World Health Organization’s
Manual of International Classification of Diseases
(3) Harmful Behavior—An action associated with a physical or mental disorder that is or has caused: (a)
Serious psychological or physical injury to the person or others (e.g., suicide attempt or pedophilia); (b)
Serious threat to the health or safety of the person or others (e.g., DWI or verbally threatening to kill
someone); and (c) major property damage.
4.c. The presence of a physical or mental illness alone does not determine whether a person poses a
significant risk. It must be a current physical or mental disorder, and behavior associated with the disorder
that may pose, or has posed, a threat to the property, safety, or welfare of the person or others. 42 CFR
§34.4(b)(iii)(A).
4.d. A history of institutionalization for a mental disorder, a criminal history such as assaults and domestic
violence where alcohol or other psychoactive substance was a contributing factor, other criminal arrests
where there is a reasonable possibility of a mental disorder as a contributing factor, or DUI/DWI
convictions and/or arrests under certain circumstances should require a mental status examination to
determine admissibility. Memo, Yates, Assoc. Dir. Operations (Jan. 16, 2004), AILA Doc. No. 04022362. A
history of domestic violence with evidence of present harmful behavior permits a consular officer in their
discretion to refer the person to a panel physician. Minutes, AILA-DOS, Liaison Meeting (Oct. 6, 2016),
Q.18, AILA Doc. No. 16100705. “A record of criminal arrests and/or convictions for alcohol-related driving
incidents may constitute evidence of health-related inadmissibility as a physical or mental disorder with
associated harmful behavior. Operating a motor vehicle under the influence of alcohol is clearly an
associated harmful behavior that poses a threat to the property, safety, or welfare of the applicant or
others.” 8 USCIS-PM, Pt. B, Ch. 7 ¶B.1 [also noting that where criminal records demonstrate that the
applicant under-reported his alcohol-related driving incidents, an officer may request a medical re-
examination]. 42 CFR §34.4(b)(iii)(B).
4.e. Alcohol Abuse/Alcohol Dependence—This section has been interpreted to include a DWI or other
alcohol-related behavior. 12 AILA Monthly Mailing 385 (May 1993) [denying IV because of DWI
conviction]. Although an alcoholic is eligible to receive a visa unless there is harmful behavior associated
with the disorder, DHS has recognized that “alcohol abuse/dependence resulting in alcohol-impaired
driving may serve as the basis for a determination that an alien has mental disorder with associated
harmful behavior.” Memo, Yates, Assoc. Dir. Operations (Jan. 16, 2004), AILA Doc. No. 04022362]; see
also 8 USCIS-PM, Pt. B, Ch. 7 ¶B.1 supra. DOS also requires that an IV or NIV applicant who has a
single alcohol-related arrest or conviction within the past 5 years, 2 or more alcohol-related arrests or
convictions within the last 10 years, or any “other evidence to suggest an alcohol problem” will be referred
to a panel physician to determine inadmissibility for substance abuse under subsection (iv). 9 FAM 302.2-
7(B)(3)(b). Page 86
(1) Prudential Revocation of Visa for DUI/DWI—On Nov. 5, 2015, DOS implemented a policy to
prudentially revoke the visa of an individual who was arrested for, or convicted of, DUI that occurred
within the previous 5 years subsequent to the issuance of a visa. 9 FAM 403.11-3(A). A prudential
revocation is not issued for someone who was convicted or arrested before the visa was issued and is
not a determination of inadmissibility under INA §212(a)(1)(A)(iii). And it may be revoked even if the
visa holder is in the U.S. 9 FAM 403.11-3(A)(5), AILA/DOS Liaison Meeting (Apr. 7, 2016) Qs.4-10,
AILA Doc. No. 16041133. But a prudential revocation takes effect upon the person’s departure from
the U.S. and therefore does not affect their status in the U.S. Minutes, USCIS, HQ-AILA Liaison
Meeting, Apr. 6, 2017, Q15, AILA Doc. No. 17050302. And a revocation of a J-1 for example would
result in the revocation of the J-2, although a person is allowed to remain in the U.S. under the prior
admission. It only affects persons prudentially revoked if they travel outside the U.S., DOS, Guidance
Directive 2016-03, 9 FAM 403.11-3—Visa Revocation (Sept. 2, 2016), reprinted in 93 No. 39
Interpreter Releases Art. 4 and Appx. III at 32-33 (Oct. 10, 2016), although generally revocation of a
visa is a ground of deportation. For a more detailed discussion, see “Revocation of Visas,” Chapter 5,
Section II.F (p.1011), infra.
4.f. Substance-Related Disorders— 42 CFR §§34.2(h)–(i); 9 FAM 302.2-7(B)(3). Substance-related

disorders under the current DSM are divided into substance-use disorders, and substance-induced
disorders. For substance-related disorders the physician must document the pattern or use of the
substance and the behavioral, physical, and psychological effects associated with use.
4.g. Procedure under this section and subsection (iv)— 9 FAM 302.2-7(B)(5)–(8). If refusal was less than a
year ago the applicant may go back to a panel physician for a new medical to determine whether the
Class A finding was correct. If it is more than a year ago, the person must reapply for a new visa. The
panel physician must do a full mental health evaluation relying on the DSM, must do random drug
screening, and must refer the applicant, when appropriate, to a specialist. For issues regarding remission
see below in the next section.
4.h. Waiver—INA §212(g)(3), 8 USC §1182(g)(3)—For a waiver of a physical or mental disorder under INA
§212(a)(1)(A)(iii), no family relationship need exist. The AG in his or her discretion and after consultation
with the Secy. of HHS may grant a waiver under such terms, conditions, and controls if any, including the
setting of a bond. A waiver application is filed on Form I601 with DHS and a copy to the CDC in Atlanta. A
consular officer may also recommend to CBP, through the Admissibility Review Information Service
(ARIS) system, that a §212(d)(3)(A) waiver be granted. 9 FAM 302.2-7(D). DHS guidelines for waivers on
medical grounds are at 9 USCIS-PM, Pt. C and Memo, Williams, Exec. Assoc. Comm. Field Operations,
HQ 70/21/1.1-P, AD 0103 (Oct. 17, 2002), AILA Doc. No. 03031763. Any waiver application submitted
should address in a medical report: (i) the applicant’s physical or mental disorder and behavior associated
with it: (ii) a finding regarding applicant’s current condition; (iii) a prognosis, based upon a reasonable
degree of medical certainty, that harmful behavior is not likely to reoccur; and (iv) a recommendation
concerning treatment and how it will reduce the likelihood that the physical or mental disorder will result in
future harmful behavior. USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 114, AILA Doc. No.
15082741a. CDC review is necessary before making a final decision but its review does not constitute
waiver approval. CDC’s review is to see that the applicant: (i) has been appropriately diagnosed with an
inadmissible health-related condition; and (ii) has identified an appropriate health care provider in the
United States. USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 117, AILA Doc. No. 15082741a.
5. Persons Determined to Be Drug Abusers or Addicts (in accordance with HHS regulations)
INA §212(a)(1)(A)(iv), 42 CFR §34.2(h)–(i); 9 FAM 302.2-8; 8 USCIS-PM, Pt. B, Ch. 8; 9 USCIS-PM, Pt. C,
Ch. 5; Matter of T-, 8 I&N Dec. 523 (BIA 1960); Matter of K-C-B-, 6 I&N Dec. 374 (BIA 1954).
5.a. Definition—Drug abuse is defined as the nonmedical use of a substance listed in §202 of the Controlled
Substances Act, Schedule I-V, that has not necessarily resulted in physical or psychological dependence.
No harmful behavior is required for inadmissibility. 42 CFR §34.2(h); 9 FAM 302.2-8(B)(1). If the
substance is not listed, such as alcohol, the applicant is not inadmissible under this section even if he or
she has a substance-related disorder. However, they may be inadmissible under §212(a)(1)(A)(iii).
Substance-related disorder does not include substances used for clinical care, 9 FAM 302.2-8(B)(1)(d),
Page 87 or experimentation with a substance (e.g., single use of marijuana or amphetamines). Cable,
DOS, 91-State-416180 (Dec. 24, 1991), reprinted in 69 No. 1 Interpreter Releases 5 (Jan. 6, 1992).
“Experimentation” is no longer defined in the CDC’s Technical Instructionsas of June 1, 2010. CDC
Immigration Requirements: “Technical Instructions for Physical or Mental Disorders with Associated
Harmful Behaviors and Substance Related Disorders” (issued June 1, 2010, and updated Nov. 1, 2017),
available at http://bit.ly/2wqIzlM.
The FAM requires that an applicant “must meet current DSM diagnostic criteria for substance-related
disorder” with any of the specific listed substances to be inadmissible. To establish substance-related
disorder, the physician must “document the pattern of use of the substance and [the] behavioral, physical,
and psychological effects associated with the use or cessation of the use for that substance.” 9 FAM
302.2-8(B)(1)–(2); 42 CFR §§34.2(h)–(i) [defining drug abuse and drug addiction with reference to the
DSM].
5.b. Procedure
(1) Generally—The examining physician must document the pattern or use of the substance and
behavioral, physical, and psychological effects associated with the use or cessation of drugs. 9 FAM
302.2-8(B)(2). Random drug screening is not part of the routine medical exam. 9 FAM 302.2-8(B)(4)
(e). Harmful behavior is not a relevant factor in rendering a determination of ineligibility under this
section. 9 FAM 302.2-8(B)(1)(b). In rendering a decision the physicians are directed to look at the
current Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria. Id. Substances used for
clinical care in medical practice do not represent substance abuse. 9 FAM 302.2-8(B)(1)(d). The CDC
will issue an advisory opinion to DOS where the applicant disagrees with the medical decision. AILA-
DOS Liaison Committee Minutes (DOS clarification) (May 24, 2006), AILA Doc. No. 06052460.
Similarly, a USCIS officer may seek an advisory opinion from the CDC where there is a question
concerning the diagnosis and/or classification by the civil surgeon or panel physician. 8 USCIS-PM, Pt.
B, Ch. 8 ¶C.
(2) Remission—A 12-month period of no substance use or associated harmful behavior is considered full
remission under the DSM, although the panel physician has discretion to determine a longer period. 9
FAM 302.2-8(B)(2)(a)(4). Prior to reliance on the DSM formal periods of 2 or 3 years of non-use of a
controlled or noncontrolled substance were used.
(3) Applicants with Previous Ineligibity—If the last refusal was less than a year ago, the consular officer
should send the applicant to the panel physician for a new medical examination to determine whether
the Class A finding for substances-related disorder still applies. If more than a year, the applicant may
get a new medical at his or her own expense. A new exam is required and the applicant must reapply
for the visa. If the applicant is found Class B, there is eligibility for a waiver. 9 FAM 302.2-8(B)(7).
(4) No Waiver, No Review—Unlike §§212(a)(1)(A)(i), (ii), and (iii), there is no waiver available under this
section for an immigrant visa. 9 FAM 302.2-8(D)(1). But one may seek an NIV waiver, which the
consular officer may recommend to CBP through the Admissibility Review Information Service (ARIS)
system. 9 FAM 302.2-8(D)(2). The applicant, as stated above, however, may prove remission and after
one year from inadmissibility reapply to demonstrate he or she is Class B and may be admitted.
USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 17, AILA Doc. No. 15082741a. There is also no
review through USCIS. Matter of H-J-L-C-, ID #13406 (AAO Nov. 12, 2015) (NSC) [AAO has no
jurisdiction to reverse an inadmissibility finding under INA §212(a)(1)(A)(iv) because only medical
examiners designated by CDC may make changes to Class A certifications].
6. Guardian Accompanying Helpless Alien—Person or guardian who accompanies an inadmissible alien

who is certified to be helpless due to infancy, sickness, or physical or mental disability, and whose protection
or guardianship is determined to be required by the person is inadmissible. A medical examining officer may
certify this. INA §212(a)(10)(B), 8 USC §1182(a)(10)(B); 22 CFR §40.102. There is no waiver except to
classify the inadmissible person as a Class B. The determination applies at the time the applicant applies for
admission and not at the time of the visa application. 9 FAM 302.12-3(B). Page 88
7. Appeal—A person given a class A certification leading to inadmissibility may appeal to DHS, whereupon a
medical board is convened and the applicant may bring their own medical experts to testify. 42 CFR §34.8(a)
(2).
8. Burden of Proof—If a medical officer, civil surgeon, or board of medical officers certifies under INA §232(b)
that a person has a disease, illness, or addiction that makes him or her inadmissible under INA §212(a)(1),
the IJ’s decision shall be based solely on the certification. INA §240(c)(1)(B).
9. IMMACT90—IMMACT90 substantially altered the health-related grounds by eliminating as a ground of

exclusion: mental retardation, Matter of Azevedo, 13 I&N Dec. 611 (Comm. 1970); insanity per se or one or
more attacks of insanity per se, Matter of W-, 2 I&N Dec. 68 (BIA 1944); Matter of M-, 7 I&N Dec. 140 (BIA
1956); affliction with psychopathic personality, sexual deviation or mental defect, including homosexuality,
Boutilier v. INS, 387 U.S. 118 (1967); Matter of Hill, 18 I&N Dec. 81 (BIA 1981), rev’d, Hill v. INS, 714 F.2d
1470 (9th Cir. 1983) [not excludable without Public Health Service determination]; Matter of Longstaff, 716
F.2d 1439 (5th Cir. 1983) [PHS cannot thwart congressional definition]; and chronic alcoholism.
B. Economic Grounds
1. Persons Likely to Become a Public Charge
INA §212(a)(4), 8 USC §1182(a)(4); 22 CFR §40.41; 9 FAM 302.8-2(B); H.R. Conf. Rep. 104-828, 104th
Cong., 2d Sess. 240–42. Prior case law defined public charge as a person who “by reason of poverty,
insanity, disease or disability would become a charge upon the public.” Gegiow v. Uhl, 239 U.S. 3 (1915).
1.a. Totality of the Circumstances—9 FAM 302.8-2(B)(3). To determine public charge, INS traditionally
applied a “totality of the circumstances” approach, which includes whether the alien has received public
assistance, his or her age, capacity to earn a living, health, family situation, work history, affidavits of
support and physical and mental condition. Matter of A-, 19 I&N Dec. 867 (Comm. 1988) [unemployed
woman who is young and has no physical or mental impediments that would affect her ability to earn a
living is not a public charge]. See also Matter of Vindman, 16 I&N Dec. 131 (RC 1977). Under IIRIRA
§531(a), Congress mandated that the following factors be taken into account in deciding public charge: (1)
age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.
DOS has changed its position in regard to public charge and affidavits of support and has determined that
an Affidavit of Support by itself may not satisfy the public charge grounds as they are distinct
requirements that must be separately satisfied. 9 FAM 302.8-2(B)(3) ¶b; Cable, DOS (18-State-942) (Jan
4, 2018), AILA Doc. No. 180122 [holding that the affidavit of support is only “one factor in the totality of the
applicant’s circumstances”]. DOS has also recognized that public charge concerns may arise even with an
affidavit of support where there are identifiable personal characteristics of the applicant that would require
considerable resources from either the sponsor or the public and the sponsor does not have such
resources. These characteristics might include “chronic illness, physical or mental handicaps, extreme
age or other serious conditions.” Cable, 98-State-102426, supra at 880. Accord 71 FR 35732, 35737–38
(June 21, 2006). See also 9 FAM 302.2-3(G)–(U) [consular officer must determine whether the person’s
disease or disability would be likely to render the person unable to care for himself or attend school or
work]. A consular officer, despite an affidavit of support, may also consider if “the applicant is in very poor
health, is unable to work, and is likely to incur significant medical costs.” Cable, DOS (18-State-942) (Jan
4, 2018), AILA Doc. No. 180122. But an officer may not speculate by asking “what if” questions, such as
“what if the applicant loses the job before reaching the intended destination” or “what if the applicant is
faced with a medical emergency.” 9 FAM 302.8-2(B)(3)(b)(1). As a general rule receipt of public benefits
by a family member is not attributable to the applicant absent a showing that it is the sole means of
support for the family. See INS field guidance on public charge, 64 FR 28689–93 (May 26, 1999),
reprinted in 76 No. 21 Interpreter Releases 843, 873–77 (May 28, 1999). See also Appendix F (p.2227)
regarding public benefits. Public charge is defined by DOS and USCIS as “likely to become primarily
dependent on the government for subsistence, as demonstrated by either (1) the receipt of public cash
assistance for income maintenance or (2) institutionalization for long-term care at government expense.”
Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689 (May 26,
1999); 9 FAM 302.8-2(B)(1). However, both USCIS and DOS recognize that the receipt of public cash
assistance or institutionalization for long term care are only factors to be considered in the totality of the
circumstances. Fact Sheet, USCIS, Page 89 Public Charge (Oct. 20, 2009) at p.2, AILA Doc. No.
09102970; 9 FAM 302.8-2(B)(1)(c); Cable, Albright, DOS 99-State-095509 (May 24, 1999), AILA Doc. No.
99052491. See also USCIS, Public Charge Fact Sheet (Apr. 29, 2011), AILA Doc. No. 11050461 [listing
benefits if received that are and are not public charge]; 9 FAM 302.8-2(B)(1) [same]. Also “public
assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use
of health clinics, short-term rehabilitation services, parent care and emergency medical services” are not
included under public charge analysis. Id. Moreover, if a person has received public benefits, it is not the
role of the consular officer to establish or address repayment in its assessment. Id. For a discussion of
means-tested public benefits, see in this section, ¶ 1.b(11)(b) (p.95), infra. If a person seeks to
demonstrate future employment to refute any inference of public charge, he may submit an offer of
employment. The submission of an offer of employment must be sworn to and subscribed before a notary
and must contain the signatory’s title. 22 CFR §40.41(e).
1.b. Affidavit of Support (I-864)
8 CFR pt. 213a, 22 CFR §40.41; AFM at 20.5; 71 FR 35732–57 (June 21, 2006); 62 FR 54346 (Oct. 20,
1997); Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 (June 27, 2006), AILA
Doc. No. 06063013; 9 FAM 302.8-2(B)(2)(b)–(e), 302.8-2(B)(4).
In order to obtain LPR status, the beneficiary must submit an affidavit of support (I-864) by a sponsor.
Customary affidavits of support (I-134) traditionally carried some weight in determining public charge even
though they have not been considered to create a legal obligation. Matter of Kohama, 17 I&N Dec. 257
(AC 1978), but now under INA §213A, I-864 affidavits are required for most family-based and some
employment-based cases. The submission of an I-864 will generally overcome the public charge ground
but not in every case, particularly where there are facts about the intending immigrant that warrant a
finding of public charge under the factors specified in INA §212(a)(4)(B). 71 FR 35738 (June 21, 2006).
See also Tadevosyan v. Holder, 743 F.3d 1250, 1254-57 (9th Cir. 2014) [reversed denial of motion to
reopen where BIA’s improperly determined that petitioner had not submitted sufficient evidence in support
of his I-864 to overcome a public charge claim].
(1) Effective Date for I-864—The affidavit of support provisions do not apply to persons who applied for
IVs (i.e., signed an OF-230 in front of consular officer) before Dec. 19, 1997. Cable, DOS, 97-State-
238374 (Dec. 22, 1997), reprinted in 75 No. 1 Interpreter Releases 3, 7–8 (Jan. 5, 1998).
(2) The I-864 Sponsor—INA §213A(f), 8 CFR §213a.2(c). The sponsor must be a USC or LPR, 18 years
of age, domiciled in U.S., and have an income 125% above the federal poverty line, INA §213A(f)(1).
The sponsor may also be a conditional resident. Memo, Aytes, (June 27, 2006), supra at p. 5 (d)(1). In
family-based cases, the sponsor must be the petitioning family member. This sponsorship requirement
includes persons seeking residency as orphans (unless the orphan would become a USC upon entry
under INA §320) and adjustment after admission on a K visa. 8 CFR §213a.2(a)(2)(i)(A). Where more
than one petition has been filed, the sponsor must be the petitioner on the petition used for residency.
8 CFR §213a.2(b)(1). The I-864 requirement also applies to employment-based cases, but only where
a relative filed the I-140 petition or where the relative has a “significant ownership interest,” in the entity
that filed the petition. “Relative” is defined as a husband, wife, father, mother, child, adult son or
daughter, brother or sister. 8 CFR §213a.1. “Significant ownership interest” means 5% or more. 8 CFR
§213a.1. However, if the relative who owns an interest in the company is not a USC or LPR, the I-864
is not required. 8 CFR §213a.2(b)(2); Cable, DOS, 98-State-042068 (Mar. 12, 1998), AILA Doc. No.
98031291. An I-864 is also not required if the relative is a brother or sister who is not a U.S. citizen. 8
CFR §213a.2(a)(2)(i)(C). All sponsors must be 18 years of age, but if under 18 can cure the improper
filing by signing the I-864 again on or after his 18th birthday, before a decision on the IV or AOS
application. 71 FR 35732, 35734 (June 21, 2006). In following-to-join cases, a person who meets the
qualification of a sponsor may file the I864 if the petitioning sponsor has died. Cable, DOS, 98-State-
133584 (July 22, 1998), AILA Doc. No. 98072291.
(3) I-864 Does Not Apply to Certain Cases—The I-864 does not apply to employment cases other than
those described in the preceding paragraph involving a relative. Similarly, the Page 90 I-864 is not
required for: (1) diversity immigrants; (2) special immigrants; (3) self-petitioning immigrants
(widows/widowers, spouses/children subjected to battery or extreme cruelty, and certain children,
spouses and grandparents under the USA PATRIOT Act); (4) refugees and asylees adjusting status;
(5) Cuban adjustment applicants; (5) registrants under INA §249; and (6) persons who have already
earned or can be credited with 40 quarters of coverage pursuant to SSA regulations. 9 FAM 302.8-2(B)
(2)(d); Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 (June 27, 2006) at
p.5, AILA Doc. No. 06063013; Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar.
7, 2000), AILA Doc. No. 00032704; Policy Memo, USCIS, PM-602-0017, Approval of Petitions and
Applications after the Death of the Qualifying Relative under the New Section 204(l) of the INA, (Dec.
16, 2010) at. 2, AILA Doc. No. 11011061 [I-864 not need where widow(er) I-130 petition coverts
automatically to I-360]. An I-864 is not required in a family-based petition where the beneficiary (child
of USC) will be immediately eligible to become a USC under INA §320(a). 8 CFR §213a.2(a)(2)(ii)(E);
Memo, Cronin, Acting Ex. Assoc. Comm. Field Operations, HQ PGM 50/10 (May 17, 2001), AILA Doc.
No. 01060821; Cable, DOS, 01-State-105806 (June 16, 2001), AILA Doc. No. 01061691 [children
adopted abroad in IR-3 category do not require an I-864 affidavit]. An affidavit is also not required for a
child admitted as an LPR under INA §211(a) and 8 CFR §211.1(b)(1) when returning with her
LPR/USC parent. 8 CFR §213a.2(a)(2)(ii)(D). Derivative beneficiaries of employment-based petitions
and K-1 and K-3 applicants do not require an I-864 until seeking AOS. Finally, an I-864 is not required
if, at the time the applicant seeks an IV or AOS, he has already worked or can be credited with working
40 qualifying quarters of coverage. 8 CFR §213a.2(a)(2)(ii)(C); 71 FR 35732, 35733 (June 21, 2006);
Memo, Cronin, Acting Ex. Assoc. Comm. Programs, HQPGM 70/21 (May 17, 2001), AILA Doc. No.
01060729. Quarters are calculated based on the amount of income earned during the course of the
year, rather than the actual number of days worked within a given quarter. To prove 40 quarters of
earnings an applicant may request certified earnings records from the Social Security Administration.
Cable, DOS, 02-State-034687 (Feb. 22, 2002), AILA Doc. No. 02022233. A person may also be
credited with quarters worked by his or her parent before he or she was 18. INA §213A(a)(3)(B)(i).
Where the I-864 is not required because of credit for quarters worked, the I-864W must be filed.
(4) Household Wage-Earners (I-864A), Joint Sponsors, and Substitute Sponsors—The I-864 sponsor
must demonstrate that he or she has income that meets at least 125% of the poverty guidelines, as
described below. If the sponsor’s income is insufficient to meet the minimum income requirements, he
or she may include a household wage-earner, who must sign an I-864A, or a joint or substitute
sponsor, who must file his or her own I-864.
(a) Income Defined—Income for purposes of the I-864 means the total unadjusted income as shown
on the tax return, before deductions. Total unadjusted income includes not only salary (if any) but
also monetary gains from any other source, such as rent, interest, dividends, etc. 9 FAM 302.8-(B)
(4)(f)(1).
(b) Household Wage-Earner on I-864A—The income of a household wage-earner (including the

sponsor’s spouse and other persons claimed as dependents in the most recent tax year, whether or
not they reside in the sponsor’s household, and other relatives (father, mother, adult son, adult
daughter, brother or sister) who have the same principal residence as the sponsor) may be
included if they are at least 18 years old. The household member need not be a USC or LPR. 8
CFR §213a.2(c)(2)(i)(C)(1); 8 CFR §213a.1 (defining “Household size”) “Household income” may
include the income of the intending immigrant if he or she is the sponsor’s spouse or has the same
principal residence as the sponsor, and the income is the result of “lawful employment in the United
States” or from “some other lawful source” that will continue to be available after LPR status is
acquired. 8 CFR §213a.1. In order to have their income counted, household members are required
to file an I-864A, which is a written contract between the sponsor and them, providing that they will
be jointly and severally liable for any reimbursement obligation that the sponsor may incur. 9 FAM
302.8-2(B)(6)(b)(1). Page 91
(c) Joint Sponsor—If the sponsor cannot meet the minimum-income requirements, he or she may
also seek a joint sponsor. The joint sponsor must be at least 18 years of age, be a USC or LPR,
and be domiciled in the United States. 8 CFR §213a.2(c)(1). The joint sponsor must file a separate
I-864 and must meet the minimum income requirements separate and apart from the sponsor. 8
CFR §213a.2(c)(1)(i). The joint sponsor’s household income must equal at least 125% of the
Poverty Guidelines for the joint sponsor’s household size unless he is on active duty in the Armed
Forces and the immigrant is his spouse or child, in which case, he need only have income equal to
100% of the Poverty Guidelines. 8 CFR §213a.2(c)(2)(iii)(C). The sponsor and joint sponsor cannot
pool their incomes and an intending immigrant may not have more than one joint sponsor. 71 FR
35732, 35734 (June 21, 2006). However, it is not necessary for all derivative beneficiaries to have
the same joint sponsor and a family may be divided so that there are joint sponsors for different
family members. 8 CFR §213a.2(c)(2)(iii)(C); 71 FR 35732, 35734–35 (June 21, 2006). There may
not be more than 2 joint sponsors for any family group. 8 CFR §213a.2(c)(2)(iii)(C).
(d) Substitute Sponsor—If the petitioner dies before the intending immigrant obtains his IV or AOS in
a family sponsored case, a substitute sponsor, under certain conditions, is permitted. 8 CFR
§213a.2(c)(2)(iii)(D); 71 FR 35732, 35735 (June 21, 2006). See also in this section “Death of the
Sponsor,” ¶ (7) (p.93), infra.
(5) Domicile Requirement

(a) Generally—The affidavit must be from the petitioning relative and any other qualifying person
under INA §213A(f). The affiant must be domiciled in the U.S., thereby precluding USCs who are
domiciled abroad from sponsoring. 8 CFR §213a.2(c)(1)(ii); Legal Opinion, G.C., INS, Legal
Opinion No. 97-10 (July 8, 1997), reprinted in 75 No. 10 Interpreter Releases 380–83 (Mar. 16,
1998); Park v. Holder, 572 F.3d 619 (9th Cir. 2009) [where husband/petitionernot domiciled in U.S.
wife was not eligible for AOS]. Domicile is defined as the person’s principal, actual dwelling place. 8
CFR §213a.1. DOS defines it as the place where the person has a residence as defined in INA
§101(a)(33). Cable, DOS, 97-State-235619 (Dec. 19, 1997), AILA Doc. No. 98010690. However, a
person residing abroad may still be domiciled in the U.S. if he went abroad pursuant to INA
§§316(b), 317, or 319(b) relating to residency for naturalization purposes. 8 CFR §213a.2(c)(1)(ii)
(A); Memo, G.C., INS, supra; AFM §20.5. DOS agrees. Cable, DOS 98-State-042068 (Mar. 12,
1998), reprinted in 75 No. 13 Interpreter Releases 468–70 (Apr. 6, 1998). Under DOS guidelines a
person domiciled abroad who wishes to take up his residence again in the U.S. may do so and
“[t]here is no requirement that the residence have been established for any length of time.… [T]he
sponsor must have taken steps to make the U.S. his immediate principal place of abode. Such
steps might include finding U.S. employment, locating a place to live, registering children in U.S.
schools and other indices of residence. The sponsor should also have made arrangements to
relinquish residence in the third country.” Cable, 98-State-042068, supra. Under DHS guidelines,
the sponsor domiciled abroad must establish by a preponderance of the evidence that he or she
will establish a domicile in the U.S. “on or before the date of the principal intending immigrant’s
admission or adjustment of status.” 8 CFR §213a.2(c)(1)(ii)(B); 71 FR 35732, 35734 (June 21,
2006).If the sponsor enters the U.S. at the same time as the beneficiary with the intention of
establishing her principal residence in the U.S., the sponsor shall be deemed to have established a
domicile in the U.S. Memo, Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 6
(June 27, 2006), AILA Doc. No. 06063013. Some ways to establish domicile in the U.S. where the
sponsor has been living abroad include: (1) finding employment in the U.S.; (2) securing a
residence in the U.S.; (3) register children in U.S. schools; (4) relinquish residence abroad; and (5)
other evidence of residence. See http://nvc.state.gov/aos.
(b) Change of Address—Sponsors who changes their address must notify USCIS on Form I-865
within 30 days of the change. Failure to file results in monetary penalties above Page 92 and
beyond the payment for lost means-tested public benefits. INA §213A(d), 8 USC §1183a(d); 8 CFR
§213a.3; 71 FR 35732, 35740 (June 21, 2006).
(6) Income Requirements—The 125% guideline is determined in relationship to the household size. 8
CFR §213a.2(c)(2)(ii)(C).
(a) Household Size—The household size includes the sponsor, the sponsor’s spouse, and the
sponsor’s children unless they are at least 18 and were not claimed as dependents. Household size
also includes: (1) any other person (whether or not related to the sponsor) whom the sponsor has
claimed as a dependent in the most recent tax year, even if he or she does not reside with the
sponsor; (2) all persons sponsored previously where the obligation has not terminated; and (3) all
persons currently sponsored. Spouses or children of the intending immigrant will not be counted if
they do not currently reside in the U.S. and do not seek to immigrate within 6 months (i.e.,
“following to join”), or if they are already a USC/LPR. 8 CFR §213a.1. All the above persons, when
added together, constitute the number of people in the household for purposes of the federal
poverty guidelines.
(b) Poverty Guidelines—The 125% measurement based on 2018 poverty guidelines, 83 FR 2642-44
(Jan. 18, 2018) except Alaska and Hawaii, which are higher, see I-864P, reprinted in 9 FAM 302.8-
2(B)(17), are as follows: for one person ($15,175); 2 people ($20,575); 3 people ($25,975); 4
people ($31,375); 5 people ($36,775); 6 people ($42,175); 7 people ($47,575); and 8 people
($52,112.). After 8 household members add $5,400 ($4,320 x 125%) for each additional person.
USCIS Form I-864P, 9 FAM 302.8-2(B)(17); DHS, 2018 HHS Poverty Guidelines for Affidavit of
Support, , reprinted in 95 No. 14 Interpreter Releases Art. 4, Appx III, p. 25 (Apr. 2, 2018). The
sponsor may count disability benefits and Social Security benefits (but not SSI) in computing his or
her income. Cable, DOS (98-State-133584) (July 22, 1998), AILA Doc. No. 98072291. For USCIS
purposes, the guidelines become effective in March following their release in January. Memo,
Aytes, Acting Dir. Domestic Operations, USCIS HQRPM 70/21.1.13 at 15, 18 (June 27, 2006), AILA
Doc. No. 06063013. For more about the poverty guidelines go to http://aspe.hhs.gov/poverty.
(c) Sponsor on Active Duty—If the petitioner is on active duty in the Armed Forces he need only meet
100% of the federal poverty guidelines if the intending immigrant is his spouse or child. 8 CFR
§213a.2(c)(2)(ii)(C).
(d) Assets and Other Income—If the sponsor cannot meet the 125% figure, he or she may provide
evidence of other assets that are readily available, including the assets and income of other
household members. See in this section, ¶ (4)(a) (p.90), supra. See also Joint Sponsor
requirements, ¶ (4)(c) (p.91), supra.
(e) Assets—The sponsor may also include other assets in addition to salary and income. Evidence of
assets include: (1) bank statements covering the last 12 months or statement from officer of
bank/financial institution; (2) stocks, bonds and CDs and dates acquired; (3) other personal
property; and (4) real estate. 8 CFR §213a.2(c)(2)(iii)(B); 9 FAM 302.8-2(B)(4)(U)(g)(2); AFM 20.5.
In determining sufficiency of assets, the value of the assets less any offsetting liabilities must
exceed by at least 5 times, the poverty guidelines minus the sponsor’s household income (e.g., if
poverty guidelines call for $10,600 for 2 and person earns $8,600 they must show 5 x $2,000 =
$10,000 in assets). If the intending immigrant is the spouse or child of a USC and the child has
reached her 18th birthday, the adjudicator may use 3 times the guidelines, rather than 5 times. 8
CFR §213a.2(c)(2)(iii)(B)(1). May count significant assets outside the U.S. as long as they are
readily convertible to cash within 1 year. 9 FAM 302.8-2(B)(4)(U)(g)(2).
(f) Other Income—The sponsor may rely on income that is not subject to taxation such as a housing
allowance for clergy or military personnel. The sponsor’s use of means-tested benefits does not
disqualify him or her from being the sponsor. It simply means those benefits are not counted toward
income. Memo, Cronin, Acting Assoc. Comm. Office of Program (70/23.1) (Mar. 7, 2000), AILA
Doc. No. 00032704. Page 93
(7) Death of the Sponsor—INA §213A(f)(5). If sponsor dies before all qualified family members have
immigrated, certain relatives may step in as a substitute sponsor. 8 CFR §213a.2(c)(2)(iii)(D); 71 FR
35732, 35735 (June 21, 2006); 9 FAM 302.8-2(B)(4)(e), 504.2-B(C)(4); Cable, DOS (98-State-112510)
(June 23, 1998), reprinted in 75 No. 25 Interpreter Releases 913, 916 (July 6, 1998). Under the Family
Sponsor Immigration Act of 2002, PL 107-150, 116 Stat. 74 (Mar. 13, 2002) certain relatives who are at
least 18 years of age (spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-
law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian) may be
substituted to meet the affidavit of support requirements under INA §213A(f)(5) when the petitioning
relative has died after approval of the petition and the Sec. of DHS, on humanitarian grounds, decides
to reinstate the petition. A substitute sponsor is not required where the beneficiary can be credited with
40 qualifying SSA quarters, including quarters earned by a parent when the individual was under age
18 or a spouse during the marriage. INA §213A(a)(3)(A) & (B). The beneficiary of the I-130 must ask
the Secy. of DHS to reinstate the petition, who must determine it is appropriate for humanitarian
reasons, and the beneficiary must demonstrate she has a substitute sponsor designated under the
Act. 8 CFR §§205.1(a)(3)(i)(C)(2), 1205.1(a)(3)(i)(C)(2). The Act applies with respect to deaths
occurring before, on, or after the date of the enactment. Cable, DOS, 02-State-071485 (Apr. 15, 2002)
at ¶4, AILA Doc. No. 02041732. A person whose case was denied on grounds that no substitute
sponsor was permissible prior to the Family Sponsor Immigration Act, may file a motion to reopen
beyond the time limit and the new law should be considered a “sufficient reason” for filing the motion
late. Memo, Williams, Ex. Assoc. Comm., Field Operations, HQADJ/70/21.1.13 (June 15, 2002), AILA
Doc. No. 02120941. However, the category of persons who may benefit from a substitute family
sponsor was dramatically enlarged for beneficiaries in the U.S. by the DHS Appropriations Act, PL 111-
83 §568(e) (Oct. 28, 2009). A substitute family member described above may serve as a substitute
sponsor where the applicant’s petition is pending or has been approved pursuant to INA §204(l). This
section requires the petition be approved unless approval would not be in the public’s interest. INA
§213A(f)(5)(B)(ii). The beneficiary simply needs to show that the petition is pending or was approved.
INA §204(l).
(8) Forms I-864, I-864EZ, I-864W, I-134—The specialized affidavit of support under INA §213A is filed on
Form I-864 by sponsors, joint sponsors, and substitute sponsors. A simplified version of the I-864 is
available on Form I-864EZ. 8 CFR §213a.2(a)(1)(i)(A). The I-864EZ is used where there is one
beneficiary, the sponsor has a W-2 and there are no asset or joint sponsor issues. Household wage-
earners file Form I-864A. Persons who are not required to file an I-864 because they have earned 40
quarters of coverage under the Social Security Act, or who are intending immigrant children who will
become USCs by virtue of the Child Citizenship Act of 2000, or who are self-petitioning widows(ers) or
battered spouses or children, must file an I-864W exemption. Persons required to meet the public
charge ground but who are not required to submit an I-864 may use the I-134 affidavit of support if
necessary.
(9) Procedure—The I-864 and all supporting documents are filed with the I-485 and all other required
documents when seeking AOS. If the applicant is seeking an IV, the I-864 and supporting documents
are sent to NVC. The I-864 should be filed within 6 months of being signed. However, DOS may
accept, on a case-by-case basis, affidavits signed as long as one year before the interview. Cable,
DOS (99-State-220435) (Nov. 28, 1998), reprinted in 76 No. 6 Interpreter Releases 247 (Feb. 8, 1999).
If the I-864 and I-864A (if needed) is properly signed, only one original is needed. Family members can
attach copies. Cable, DOS, 98-State-092491 (May 22, 1998), AILA Doc. No. 98060590. For consular
procedures regarding review of I-864 see 9 FAM 302.8-2(B)(12)-(17). The original “ink” signature on an
application need not be filed as DOS and the NVC will accept copies that contain the signature. Press
Release, DOS, Ink Signature No Longer Required on Affidavits of Support (Dec. 28, 2016), AILA Doc.
No. 16122801. Page 94
(10) Documentary Requirements
(a) Generally—The sponsor is required to submit with the I-864: (a) federal tax returns for the most
recent year, including W-2 forms; (b) evidence of current employment; (c) evidence that sponsor’s
income is sufficient to meet the income requirements; and (d) the current edition of the poverty
guidelines (I-864P). INA §§213A(f)(6)(A) & (B); 8 CFR §§213a.2(a)(1)(ii), 213a.2(c)(2)(i)(A). The
sponsor’s income must meet the 125% requirement of the poverty guidelines in effect at the time
the I-864 was submitted. Memo, Aytes, Acting Dir. Operations, USCIS, HQOPRD 70/21.1.13 (Nov.
23, 2005), AILA Doc. No. 05120210; Cable, 06-State-051172, supra at ¶4. The affidavit will
normally be held sufficient unless there are specific facts, including a material change in
employment or income history, implying that the sponsor may not be able to maintain household
income and meet sponsorship obligations. 8 CFR §213a.2(c)(2)(ii)(C). Consular officers are not to
require an employment letter unless there is some reason to question the veracity of the income
stated. Cable, 06-State-051172, supra at ¶4. 9 FAM 302.8-2(B)(13)(e)
(b) Tax Returns—USCIS and DOS have determined that the past year’s tax return is sufficient and
that a sponsor is no longer required to provide 3 years of returns. 8 CFR §213a.2(c)(2)(i); 9 FAM
302.8-2(B)(13)(e)(3)(d)(1). Photocopies of tax returns or IRS-generated transcripts are allowed. 71
FR 35732, 35738 (June 21, 2006). Sponsors need only submit tax returns in years they were
obligated to file, but if they had no legal duty to file, they must provide an explanation. 8 CFR
§213a.2(c)(2)(i)(B); Cable, DOS, 98-State-133584 (July 22, 1998), AILA Doc. No. 98072291. A
DOS officer may request a tax summary prepared by IRS only if the officer has doubts about the
validity of the tax returns. Id. Amended returns are permissible. USCIS may accept a transcript of
the taxpayer’s income tax return where the taxpayer files an IRS 4506T. Because IRS issues this
document, it is not necessary to ask the sponsor for a W-2 or 1099. Aytes Memo (Nov. 23, 2005),
supra.
(c) Household Members—A household member who has signed an I-864A must also provide such
documentation, including a tax return for the same year as submitted by the sponsor. 8 CFR
§213a.2(c)(2)(i)(C)(4).
(d) Processing Delays and Documentation—The sufficiency of the I-864 should be based on the
evidence submitted unless more than one year has passed between filing and examination, in
which case the adjudicator or IJ may request additional evidence. 8 CFR §§213a.2(a)(1)(v)(A) &
(B). But see Cable, 06-State-051172, supra at ¶4 [the delay between the date of signing the I-864
and the date of the visa interview should not be a basis to request updated information]. For
additional consular procedural issues see 9 FAM 302.8-2(B)(4)(f) and (B)(12)-(16).
(11) Affidavit as Enforceable Contract
(a) Generally—The I-864 affidavit of support is now an enforceable contract against the affiant. INA
§213A(a), 8 USC §1183a(a). The sponsor and joint sponsor are “jointly and severally liable.” 71 FR
35732, 35743 (June 21, 2006). Execution of the I-864 creates a contract but the obligation begins
after the sponsored immigrant “acquires permanent residence.” 8 CFR §213a.2(d); 71 FR 35732,
35740 (June 21, 2006). The affidavit is enforceable by the sponsored person, the local, state or
federal government, or any agency providing a means-tested public benefit until the sponsored
immigrant is: (1) naturalized; (2) ceases to be an LPR and departs the U.S.; (3) obtains a new grant
of AOS in a removal proceeding; (4) has earned or been credited with 40 qualifying quarters under
Title II of the Social Security Act (approx. 10 years) not including periods where means-tested
benefits were received; or (5) dies. 8 CFR §213a.2(e)(2)(i). Divorce does not end the obligation of
support; nor a premarital agreement. Erler v. Erler, 824 F.3d 1173, 1175-77 (9th Cir. 2016) [neither a
divorce decree nor a premarital agreement terminates the obligation of support]. Qualifying quarters
are attributed to the child (if under 18) or the spouse (if they remain married). An action need be
brought no later than 10 years after the date the sponsored person received any means-tested
public Page 95 benefit. The contract is only enforceable if the government agency seeking
enforcement published that the benefit is a means-tested public benefit prior to the date the benefit
was first provided the immigrant. 71 FR 35732, 35742 (June 21, 2006). The affiant is now required
to report his or her change of address or be subject to a fine which may range from $250 to $5,000.
INA §213A(d).
(b) Means-Tested Public Benefits—Supplemental Security Income (SSI); and Temporary Assistance
to Needy Families (TANF). 62 FR 45256, 45284 (Aug. 26, 1997). It also includes state means-
tested benefits. 8 CFR §213a.4(b). The following benefits are exempt: emergency medical care;
short term, noncash in-kind emergency disaster relief; benefits under National School Lunch Act
and similar state and local programs; benefits under Food Stamps, Child Nutrition Act of 1966 and
similar state/local programs; WIC (Supplemental Nutrition Program for Women, Infants, and
Children); public assistance for immunizations and for testing and treatment of communicable
diseases; Medicaid, Children’s Health Insurance Program (CHIP), payment for foster care and
adoption assistance; services, or assistance (such as soup kitchens, crisis counseling and
intervention and short-term shelter) specified by the AG; student assistance under Titles IV, V, IX,
and X of Higher Education Assistance Act of 1965 and Titles IV, VII and VIII of Public Health
Service Act; benefits under Head Start Act; means-tested programs under the Elementary and
Secondary Education Act of 1965; and benefits under Job Training Partnership Act. 9 FAM 302.8-
2(A)(c); Cable, DOS, 97-State-228462 (Dec. 6, 1997), reprinted in 74 No. 47 Interpreter Releases
1,889–94 (Dec. 15, 1997). HUD programs are not considered to fall under the category of federal
means-tested public benefits. 65 FR 49994 (Aug. 21, 2000. See also A Quick Guide to Public
Charge and Receipt of Public Benefits (Oct. 18, 1999), reprinted in 76 No. 43 Interpreter Releases
1613, 1637–38 (Nov. 8, 1999). See also Fact Sheet, USCIS, Public Charge (Oct. 20, 2009) at p. 2,
AILA Doc. No. 09102970 [listing benefits not subject to public charge including noncash benefits
under TANF, job training programs, emergency disaster relief, child care services, housing benefits,
and unemployment and Social Security].
(c) Affidavit Used to Claim Support—Congress “clearly intended to permit the sponsored immigrant to
sue to enforce the support obligation, if necessary.” 71 FR 35732, 35743 (June 21, 2006). In
addition to the obligation to the U.S. government or the states to repay any means-tested public
benefits, and in addition to any alimony payments, the sponsor and even the joint sponsor (and the
household member who signs the I864A) may have a continuing responsibility to support the
immigrant and his or her family at 125% of the poverty guideline. INA §213A(a)(1)(A), 8 USC
§1183a(a)(1)(A). [“the sponsor agrees to provide support to maintain the sponsored alien at an
annual income that is not less than 125 percent of the Federal poverty line during the period in
which the affidavit is enforceable.”] The I-864 instructions clearly state that: “By signing this form,
you, the sponsor, agree to support the intending immigrant and any spouse and/or children
immigrating with him or her.” Form I-864, p.1 (Sponsor’s Obligation). Part 7 of the I-864 further
states: “I agree to provide the sponsored immigrant(s) whatever support is necessary to maintain
the sponsored immigrant(s) at an income that is at least 125 percent of the Federal poverty
guidelines. I understand that my obligation will continue until my death or the sponsored
immigrant(s) have become U.S. citizens, can be credited with 40 quarters of work, depart the
United States permanently, or die.” The support obligation, however, begins only when the
immigration officer or IJ “grants” the immigrant’s application for admission or her adjustment of
status. 8 CFR §213a.2(e); 71 FR 35732, 35740 (June 21, 2006). See also 8 CFR §213a.2(f)
[criteria for withdrawal of affidavit before approval]; 8 CFR §213a.2(c)(2)(v) [failure to sign waiver
needed to verify information constitutes a withdrawal].
(d) Enforcement of I-864—An action to enforce the I-864 may be brought in either state or federal
court. Madrid v. Robinson, 218 F.Supp.3d 482, 484-87 (W.D. Va. 2016) [court recognized that a
federal cause of action is created by 8 USC §1183a(e)(1) and that the federal court had jurisdiction
to enforce agreement despite defendant’s claim it was a breach of contract only enforceable in
state court]. Courts have found the I-864 Page 96 enforceable and have ordered support payments
to a former spouse. Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012) [the sponsored immigrant is
a third party beneficiary whose rights exist “apart from whatever rights [she] might or might not have
under Wisconsin divorce law,” and she has no legal obligation to mitigate damages]; In re Marriage
of Dickson, 337 P.3d 72 (Kan. App. 2014) [maintenance and support in divorce proceedings are
separate and apart from I-864 obligations]; Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D. Cal.
2008) [I-864 is legally enforceable but recognizing certain set-offs]; Naik v. Naik, No. A-6270-05T5
(N.J. Super. Apr. 14, 2008) [I-864EZ creates legally enforceable contract but there is a set-off for
spousal and child support and equitable distribution]; Cheshire v. Cheshire, No. 3:05-CV-00453-
TJC-MCR, 2006 WL 1208010 (M.D. Fla. May 4, 2006) [under INA §213A(a)(1), the sponsor’s
obligation under the I-864 to support his former wife is contractual and independent of
reimbursement to the government or alimony]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL
1290658 (N.D. Ind. May 27, 2005) [granting summary judgment on liability]; Stump v. Stump, No.
1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) [finding I-864 enforceable and
ordering defendant to pay former spouse support at 125% of the poverty guidelines]. See also
Moody v. Sorokina, 40 A.D.3d 14 (N.Y. App. Div. 2007) [lower court erred in finding defendant not
eligible to seek enforcement of the I-864 on grounds that the statute was for public benefit only];
Davis v. Davis, No. WD-04-020, 2004 WL 2924344 (Ohio App. 6 Dist. Dec. 17, 2004) [reversing trial
court’s decision to decline jurisdiction to enforce I-864]. Enforceability also extends to co-
signatories, including parents of petitioner who co-signed. Zhu v. Deng, 794 S.E. 2d 808 (N.C. App.
2016). But see Kawai v. Uacearnaigh, 249 F.Supp.3d 821 (D.S.C. 2017) [dismissing I-864 action in
federal court under Younger abstention because of on-going family court proceedings where the
federal claims may adequately be raised in the state court divorce proceedings]; Yaguil v. Lee, 2014
WL 1400959 (E.D. Cal Apr. 10, 2014) [dismissal on res judicata grounds because I-864 was raised
in settlement conference in divorce proceedings]; Tornheim v. Kohn, No. 00 CV 5084 (SJ), 2002
WL 482534 (E.D.N.Y. Mar. 26, 2002) [declining to enforce I-134 affidavit of support]. See also Davis
v. U.S., 499 F.3d 590 (6th Cir. 2007) [dismissing action for declaratory judgment under the Rooker-
Feldman doctrine by legally separated U.S. husband to determine amount owed to wife and step-
sons under I-864 after wife obtained support ruling in state court]. The obligation may not be
dischargeable in bankruptcy. Cook v. Cook, 473 B.R. 468 (M.D. Fla. 2012) [$100,000+ judgment
under the affidavit of support from a 3-month marriage was enforceable, despite previous payment
of $29,000+ in alimony, and was not dischargeable in bankruptcy because it was a domestic
support obligation under 11 USC §523(a)(5)].
i) Premarital Agreements—The comments to the regulations take no view on whether divorce

affects support obligations under the affidavit, but notes that a sponsored immigrant, in a divorce
settlement, can surrender his or her right to sue the sponsor to enforce the I-864. 71 FR 35732,
35740 (June 21, 2006); Blain v. Herrell, No. 10-00072 ACK-KSC,2010 WL 2900432 (D. Haw.
July 21, 2010) at pp. 5-6 [dismissing complaint with prejudice to enforce I-864 and finding that
prenuptial agreement barred enforcement because it is a “basic principle of contract law that a
party may waive legal rights”]. But see Erler v. Erler, 824 F.3d 1173, 1175-77 (9th Cir. 2016) [a
premarital agreement does not terminate the obligation of support]; Toure-Davis v. Davis, No.
WGC-13-916, 2014 WL 1292228 (D. Md. Mar. 28, 2014) [antenuptial agreement signed before
affidavit of support does not relieve obligation and court discounted comments to regulations].
ii) Other Remedies—The enforcement statute also includes other remedies such as “payment of
legal fees and other costs of collection” 8 USC §1183a(c). See Iannuzzelli v. Lovett, 981 So.2d
557 (Fla. 3d DCA 2008) [legal fees limited to collecting on judgment obtained, not seeking
judgment]; Matloob v. Farham, No. WDQ-11-1943, 2014 WL 1401924 (D. Md. Apr. 9, 2014) and
2014 WL 4977667 (D. Md. Oct. 1, 2014) [awarded attorney’s against pro se defendant]. But see
Yaguil v. Lee, 2014 WL 3956693 (E.D. Cal Aug. 13, 2014) [sponsor may not recover Page 97
fees as INA §213A(c) is not a prevailing party statute but one for the benefit of the beneficiary
only]. Beneficiary also entitled to specific performance requiring sponsor continue his obligations
unless one of the terminating conditions applies. Santana v. Hatch, No. 15-cv-89-wmc,2016 WL
1734117 (W.D. Wis. Apr. 29, 2016) [awarding specific performance and attorney’s fees].
(e) Calculation of Damages—The calculation of damages under the I-864 is based on whether the
beneficiary had income that annually reached 125% of the poverty guidelines. One court has found
that you cannot aggregate the beneficiary’s income over several years to determine the 125% per
year, but must determine year-by-year whether the individual’s “annual income” under 8 USC
§1183a(a)(1)(A) met the 125% poverty threshold. Shumye v. Felleke, 555 F.Supp.2d 1020, 1024–
25 (N.D. Cal. 2008) [must separately analyze each calendar year during which the affidavit was
enforceable, rather than looking at former wife’s aggregate income over the entire multi-year
period]. Another court has found that when measuring whether an immigrant meets the 125%
poverty threshold the court must disregard the income of anyone else living in the household who is
not a sponsored immigrant. Erler v. Erler, 824 F.3d 1173, 1177-81 (9th Cir. 2016) [sponsor’s
obligation is to provide immigrant support at 125% income and he could not count the income of the
immigrant’s son who was living with the immigrant after divorce]. Beneficiary’s time out of the U.S.
does not categorically prevent recovery from the petitioner. Villars v. Villars, 336 P.3d 701, 712 (Ala.
2014) [physical location abroad does not preclude receipt of support but assistance from family
members while abroad would count as an offset]. Another court held that the beneficiary’s assets
cannot be treated as income. Zhu v. Deng, 794 S.E. 2d 808 (N.C. App. 2016). But see Dahhane v.
Stanton, No. 15-CV-1229 (PJS/BRT),2016 WL 4257536 (D. Minn. Aug. 12, 2016) [money the
beneficiary brought from his home country counted as income offsetting the petitioner’s obligations
as did child support payments].
(f) Defenses—Defenses to enforcement of the affidavit in regard to damages include mitigation and
set off. See Dahhane v. Stanton, No. 15-CV-1229 (PJS/BRT), 2016 WL 4257536 (D. Minn. Aug. 12,
2016) [financial payment, whether as a gift or otherwise, may be counted against the sponsor’s
support obligation]; Shumye v. Felleke, 555 F.Supp.2d 1020, 1025–27 (N.D. Cal. 2008) [student
grants and housing subsidies are set-offs but student loans and divorce settlement over community
property are not]; Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329 (N.D. Ind. Oct. 25,
2005) at *7 [mitigation and set off can be deducted from amount owed]; Cheshire v. Cheshire, 2006
WL 1208010, *6, No. 3:05-cv-00453-TJC-MCR (M.D. Fla. May 4, 2006) But see Wenfang Liu v.
Mund, 686 F.3d 418 (7th Cir. 2012) [spouse has no legal obligation to mitigate damages]; Zhu v.
Deng, 794 S.E. 2d 808 (N.C. App. 2016) [no duty to mitigate]; Dorsaneo v. Dorsaneo, 261
F.Supp.3d 1052 (N.D. Cal. 2017) [neither estoppel nor fraud in the inducement are defenses];
Wenfang Liu v. Mund, 748 F.Supp.2d 958, 963 (W.D. Wis. 2010) [validity of marriage should be
litigated in state court not in I-864 enforcement proceeding]; Younis v. Farooqi, 597 F.Supp.2d 552
(D. Md. 2009) [child support is not a set-off but beneficiary had obligation to make reasonable
efforts to find employment to mitigate damages].
(12) Criminal Issues—U.S. v. Wu, 419 F.3d 142 (2d Cir. 2005) [where I-864 contained false statements
that were not material, government can still convict by showing that I-864 was part of the larger
process of falsely petitioning, though the use of an I-130 petition, for relatives].
2. Persons Seeking Entry for Purpose of Performing Skilled or Unskilled Labor—Persons are
inadmissible under this category unless the Secy. of Labor certifies that there are not enough workers who
are able, willing, qualified, and available to perform such labor, and that the wages and working conditions of
workers in the U.S. similarly employed will not be adversely affected. INA §212(a)(5)(A), 8 USC §1182(a)(5)
(A). This category applies to the 2nd and 3rd preference categories of employment-based admissions. There
is an elaborate procedure under DOL PERM regulations to test the U.S. labor market to determine whether
there are qualified U.S. workers who are Page 98 able, willing, and available for the position before a labor
certification for an alien can be issued. 20 CFR pt. 656. See “Labor Certification” in Chapter 7, Part VIII
(p.1511), infra.
3. Certain Medical Graduates of Nonapproved Schools—Medical graduates of nonapproved schools are

excludable if they have not passed the National Board of Medical Examiners (NBME) examination Part I and
II (or an equivalent exam as determined by the Secy. of HHS) and are not competent in oral and written
English, if they are immigrating principally to perform services as a member of the medical profession. INA
§212(a)(5)(B), 8 USC §1182(a)(5)(B), 22 CFR §40.52. Matter of Sheikh, 17 I&N Dec. 634 (RC 1980). The
equivalency exam now given is the U.S. Medical Licensing Exam (USMLE) parts I, II, and III, which replaces
the Foreign Medical Graduate Exam in the Medical Sciences (FMGEMS). Parts I and II of the USMLE are the
equivalent of parts I and II of the NBME. The prohibition on admission extends to teaching, research, and
other activities that require a medical degree. Letter, Weinig, Asst. Comm. Adjudications, reprinted in 7 AILA
Monthly Mailing 357 (Aug. 1988) unless they are entering as NIVs. This exclusion does not apply to
physicians of national or international renown in the field of medicine. INA §§101(a)(41), 203(b)(1)(A), 8 USC
§§1101(a)(41), 1153(b)(1)(A). Nor does it apply to doctors who wish to enter as family relatives, investors, or
through the AA-1 program, as the ground of inadmissibility applies only to the new 2nd and 3rd employment-
based preferences.
4. Uncertified Foreign Health Care Workers
INA §212(a)(5)(C), 8 USC §1182(a)(5)(C); 8 CFR §§212.15, 1212.15; 68 FR 43901–21 (July 25, 2003), AFM
at 30.12.; 22 CFR §40.53; 67 FR 77158 (Dec. 17, 2002); 73 FR 62197 (Oct. 20, 2008).
4.a. In General—A person seeking to enter as a health care worker (other than a physician) is inadmissible
unless he or she presents a certificate from the appropriate accrediting agency verifying that: (1) the
person’s education, training, license, and experience are comparable with that required for an American
health care worker of the same type; (2) the education, training, license, and experience are authentic and
in the case of a license, unencumbered; (3) the education, training, license, and experience meet all
applicable statutory and regulatory requirements for admission into the U.S. although the verification is not
binding on DHS; (4) the applicant has passed a predictor licensing or occupation examination recognized
by a majority of states licensing the occupation or has passed the actual occupation licensing or
certification examination; and (5) the applicant meets certain English language requirements by either
graduating from a school in one of several English-speaking countries or by passing an English language
test. 8 CFR §§212.15(f), (g), 1212.15(f), (g). The English language test must be administered through
either the Educational Testing Service (ETS) (which includes the TOEFL), the Test of English for
International Communication Service International (TOEIC), or the International English Language Testing
System (IELTS). 8 CFR §§212.15(g)(3), 1212.15(g)(3). Persons are exempt from the English language
requirement if they attended college, university, or professional training school in Australia, Canada
(except Quebec), Ireland, New Zealand, U.K., or the U.S. 8 CFR §§212.15(g)(2), 1212.15(g)(2). Health
care workers may also be exempt from an English language proficiency test (as well as a comparability
review) if they meet the streamlined certification process in their occupation. 8 CFR §§212.15(i).
This ground of inadmissibility applies even to persons who did their training in the U.S. 8 CFR §212.15(c);
68 FR 43901, 43904–05 (July 25, 2003). Legislative history suggests that this section applies to persons
seeking entry through NAFTA or any other treaty and includes nurses, physical therapists, occupational
therapists, speech-language pathologists, medical technologists and technicians, physician assistants,
and any others designated by regulation. H.R. Conf. Rep. 828, 104th Cong., 2d Sess. at 227 (1996); 68
FR 43901, 43904 (July 25, 2003). It also includes persons indirectly involved in health care work such as
a supervisory nurse even if they do not engage in clinical work. 63 FR 5507 at 55009. DHS has
interpreted the statute to apply only to those professions listed in the legislative history. 8 CFR §212.15(c),
1212.15(c). However, the Conference Report allowed DHS to designate other categories and DHS will
consult extensively with HHS regarding any future additions. 68 FR 43901, 43905–06 (July 25, 2003).
DOS has agreed and suggested the DOT as guidance for defining the professions. Cable, DOS (98-State-
079570), reprinted in 75 No. 19 Interpreter Releases 697 (May 18, 1998). Page 99
4.b. Persons Not Included in Statute—The statute does not include: (1) physicians, (2) persons performing
nonclinical health care such as medical teachers, medical researchers, and managers of health care
facilities; (3) persons receiving training under F, J, or H-3; (4) spouse and dependent children of an
immigrant or NIV holder; and (5) persons obtaining AOS or IV under family-based petitions, employment-
based petitions not involving direct medical care, refugee adjustment, registry, cancellation, or
legalization. 8 CFR §§212.15(b), 1212.15(b), 68 FR 43901, 43904 (July 25, 2003). Dentists and physical
therapist assistants are also not covered. Letter, Simmons, Branch Chief, Business and Trade Services
(HQ 70/6.2.8) (Dec. 10, 1999), reprinted in 77 No. 6 Interpreter Releases 193 (Feb. 7, 2000). But see 22
CFR §40.53(a) [suggesting that all foreign health care workers performing care except physicians need to
obtain a CGFNS or another credentialing service’s certification].
4.c. Procedures
(1) In General—The health care worker must present a certificate from a credentialing organization listed
at 8 CFR §§212.15(e), 1212.15(e) each time he or she enters until permanent residence is granted.
The certificate is only valid for a 5-year period. 8 CFR §212.15(n)(4). The certificate must also be
presented to DHS each time the person applies for an extension of stay or change of status, Memo,
Yates, Assoc. Dir. Operations, USCIS (Sept. 22, 2003), AILA Doc. No. 03092641, and must also be
presented at the interview for AOS or IV. 8 CFR §212.15(n)(3). DOS has authorized consular officers
to accept certificates issued consistent with DHS regulations. Cable, DOS, 01-State-48497, reprinted
in 78 No. 19 Interpreter Releases 814–15 (May 14, 2001). DHS has also established procedures to
accredit credentialing organizations, set standards for them, review their performance, and terminate
their status. Applicants apply on an I-905. 8 CFR §§212.15(j)–(m), 1212.15(j)–(m); AFM at 30.12(g).
But USCIS maintains the position that it is not bound by a credentialing agency’s verification of a
beneficiary’s education, training, license and experience. 8 CFR §212.15(f)(1)(iii).
(2) Nurses—INA §212(r), 8 USC §1182(r), 8 CFR §212.15(h). Applies a different standard and different
criteria than INA §212(a)(5)(C).
(a) Must be certified through the Commission on Graduates of Foreign Nursing Schools (CGFNS). 8
CFR §§212.15(e), 1212.15(e). Under the Nursing Relief for Disadvantaged Areas Act of 1999, PL
106-95 §4, CGFNS (or an equivalent approved independent credentialing organization) may issue
a certified statement (instead of a certificate) if: (1) the individual has a valid unrestricted license as
a nurse in a state where the individual is to be employed and the state has verified that any foreign
licenses are authentic and unencumbered; (2) the nurse has passed the NCLEX (National Council
Licensure Examination); (3) the nurse is a graduate of an English-language nursing program; (4)
the nursing program was located in Australia, Canada, Ireland, New Zealand, South Africa, the
U.K., or the U.S., or in any other country designated by unanimous agreement of CGFNS (or
another equivalent credentialing service) approved for certification of nurses; and (5) the nursing
program was in operation on or before Nov. 12, 1999, or has been approved by unanimous
agreement by CGFNS or another equivalent credentialing service. CGFNS is the organization that
typically certifies nurses who meet the qualification pursuant to INA §212(r). 8 CFR §§212.15(h)(2),
1212.15(h)(1). If a certified statement is issued, the nurse need not comply with the certificate
requirements or the English language requirements for certification in the regulations. A nurse must
present the certified statement upon each entry to the U.S. 68 FR 43901, 43906 (July 25, 2003).
(b) Alternatively, a nurse may obtain a certificate under the requirements of INA §212(a)(5)(C) as
specified in 8 CFR §212.15(f)–(g) and §1212.15(f)–(g). A nurse therefore may meet the
requirements by taking a predictor examination as specified in 8 CFR §§212.15(f)(1)(iv), 1212.15(f)
(9) instead of the NCLEX. 68 FR 43901, 43914 (July 25, 2003). In addition, a nurse who has
graduated from an entry-level program accredited by the National League for Nursing Accreditation
Commission (NLNAC) or the Commission on Collegiate Nursing Education (CCNE) is exempt from
the educational comparability review and English language proficiency testing. If the nurse Page
100 is not exempt from the English language exam either because of the streamlined certification
or due to graduation in an English-speaking country, 8 CFR §§212.15(g), (i), 1212.15(g), he or she
must attain a certain score on the TOEFL, TOEIC, or IELTS exam. 8 CFR §§212.15(g)(4)(ii),
1212.15(g)(4)(ii). Includes licensed practical nurses, licensed vocational nurses, and registered
nurses. 8 CFR §§212.15(c)(1), 1212.15(c)(1).
(3) Occupational Therapists—Must be certified by the National Board for Certification in Occupational
Therapy (NBCOT) or the CGFNS. The only acceptable English exam for occupational therapists is the
ETS. 8 CFR §§212.15(g)(4)(i); 1212.15(g)(4)(i). Requirements generally for occupational therapists
are: master’s degree and 6 months’ supervised fieldwork and passage of a national certification exam.
Letter, Bartsch, Chief, Division of Occupational Outlook to Grace, DOL (May 15, 2009), AILA Doc. No.
09073174.
(4) Physical Therapists—The Commission on Accreditation of Physical Therapy Education (CAPTE) sets
standards for PT education in the U.S. The Foreign Credentialing Commission on Physical Therapy
(FCCPT) or the CGFNS is authorized to certify and grant the healthcare certificate (called the
VisaScreen®) to foreign physical therapists if they meet the CAPTE standards. The only acceptable
English exam for physical therapy is the ETS. 8 CFR §§212.15(g)(4)(i), 1212.15(g)(4)(i).
In CGFNS’s analysis of whether the foreign degree and/or work meet the CAPTE standards, it links
that analysis to the type of NIV or immigrant status sought and in what state the applicant will be
employed as a physical therapist because state standards may differ to obtain licensing. Letter,
Nelson, Chair of CGFNS International Physical Therapy Professional Standards Committee to Hale,
Adjudication Officer, USCIS (Mar. 28, 2009), AILA Doc. No. 09032770 [addresses credentialing
standards for DOL residency requirements, USCIS standards for H-1B, and TN standards]. To
determine whether a foreign national meets the requirements CGFNS compares the foreign
credentials against the combination of courses and work approved by CAPTE needed to be a PT in a
particular state. Id. CAPTE, however, no longer gives accreditation for bachelor’s degrees so that
when a person with a foreign degree is accredited it means, that at a minimum, it is for a master’s
degree. Letter, Lindeblad, Managing Director of FCCPT, Interpretation of FCCPT Final Report (Feb.
19, 2009), AILA Doc. No. 09070267; FCCPT, Important Change to USCIS Requirements for Health
Care Worker Certification (Sept. 16, 2016) [must possess a master’s degree or higher in physical
therapy and a minimum of 202.1 semester credits].
(5) Speech-Language Pathologists and Audiologists, Medical Technologists (Clinical Laboratory

Scientists), and Physicians Assistants—The CGFNS is authorized to issue certificates in these fields.
The ETS, TOEIC, or IELTS administered tests can be used to satisfy the English language
requirement.
(6) Medical Technicians (Clinical Laboratory Technicians)—The CGFNS is authorized to issue certificates
in these fields. The ETS-, TOEIC-, or IELTS-administered tests can be used to satisfy the English
language requirement.
5. Former Citizens Who Renounce Citizenship for Tax Purposes—INA §212(a)(10)(E), 8 USC §1182(a)(10)
(E), 22 CFR §40.105. Inadmissible if the person renounced citizenship for the purpose of avoiding U.S.
taxation on or after Sept. 30, 1996. IIRIRA §352(b). To effectuate this provision, DOS will provide information
to Treasury who will then coordinate with DHS. However, the “role of the Department and the consular officer
is very limited in implementing this ground of inadmissibility. Unless the applicant appears as a hit in the
lookout system revealing a finding of inadmissibility under INA 212(a)(10)(E), you must assume the applicant
is eligible.” 9 FAM 302.12-6(B)(2).
6. Grounds of Exclusion Eliminated—IMMACT90 eliminated excludability for persons certified by a medical

officer as having a physical defect, disease, or disability that may affect their ability to earn a living, Rokiyi
Tambara v. Weedin, 299 F. 299 (9th Cir. 1924); Wallis v. U.S., 273 F. 509 (2d Cir. 1921), as well as for
paupers, professional beggars, and vagrants. Matter of M-, 2 I&N Dec. 131 (BIA 1944). Page 101
C. Criminal Grounds
1. Crimes Involving Moral Turpitude (CIMT)
INA §212(a)(2)(A)(i)(I), 8 USC §1182(a)(2)(A)(i)(I)
1.a. Generally—Persons who have been convicted of a crime involving moral turpitude, Jordan v. De
George, 341 U.S. 223 (1951), who admit to a DHS/consular officer to having committed such crime, or
who admit committing acts that constitute the essential elements of such a crime, are inadmissible. 9 FAM
302.3-2(B)(2) It also includes attempts and conspiracy. INA §212(a)(2)(A)(i)(I), 8 USC §1182(a)(2)(A)(i)(I);
9 FAM 302.3(B)(2)(c). A consular officer, however, may first look to an exception to a CIMT rather than
engage in an analysis of whether the crime is a CIMT. 9 FAM 302.3-2(B)(1)(c) [if the consular knows the
crime occurred before the applicant was 18 it may be possible to rule out a CIMT ground of inadmissibility
before determining whether the crime is a CIMT].
1.b. Determining a Crime Involving Moral Turpitude
(1) Conviction vs. Admission—For a discussion of what constitutes a conviction, see in this chapter Part
VI (p.349), infra. In Matter of K-, 7 I&N Dec. 594, 598 (BIA 1957), the BIA adopted a 3-part test for the
acceptance of an admission: (1) the admitted conduct must constitute the essential elements of the
crime; (2) the applicant must have been provided with a definition and the essential elements of the
offense prior to his admission; and (3) the admission must be voluntary. The applicant must also admit
all facts constituting the crime. For a discussion concerning admission, see in this section ¶ 2.c
(p.130), infra.
(2) Juvenile Crimes—An alien may not be inadmissible if the crime was committed when the person was
under 18 years of age and was committed more than 5 years prior to the date of application for entry
and for a visa to enter. If imprisoned, the alien must have been released more than 5 years prior to the
application for admission, AOS, or visa. INA §212(a)(2)(A)(ii)(I); 9 FAM 302.3-2(B)(7)(a). An act that
amounts to juvenile delinquency is not a crime and cannot be the basis for inadmissibility. Matter of
Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); 22 CFR §40.21(a)(2). The standards established in the
Federal Juvenile Delinquency Act, 18 USC §5031–50, govern whether an offense is to be considered
an act of delinquency or a crime. Matter of Devison, 22 I&N Dec. 1362, 1366 (BIA 2000) [an
adjudication under N.Y. Crim. Proc. Law Art. 720 youthful offender procedures is equivalent to the
FJDA and therefore not a conviction]; 9 FAM 302.3-2(B)(8). When a state procedure is not the
equivalent of the FJDA, it will be deemed a conviction.Matter of V-X-, 26 I&N Dec. 147, 152-53 (BIA
2013) [“youthful trainee” procedure under Michigan law is not the equivalent of the FJDA and is a
conviction]; Hanna v. Holder, 740 F.3d 379, 391-92 (6th Cir. 2014) [same following Uritsky]; Uritsky v.
Gonzales, 399 F.3d 728 (6th Cir. 2005) [distinguishing Devison, and determining that a sentence of
probation under Michigan’s Youthful Trainee Act was a conviction]; Dung Phan v. Holder, 722
F.Supp.2d 659 (E.D. Va. 2010) [distinguished Devison and held that an adjudication under District of
Columbia Youth Rehabilitation Act, D.C. Code §24-901 et seq. is a conviction]. And when a child is
charged as an adult the FJDA does not apply.Rangel-Zuazo v. Holder, 678 F.3d 967 (9th Cir. 2012)
[minor charged as adult was convicted as FJDA did not apply and equal protection challenge rejected];
Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278–79 (11th Cir. 2009) [state conviction of a 15-year-old in
adult court is a conviction]; Savchuck v. Mukasey, 518 F.3d 119, 122–23 (2d Cir. 2008) [guilty plea prior
to 18th birthday where respondent was charged as an adult was a conviction even if he would have
been charged as a juvenile under the FJDA if it were a federal crime]; Vargas-Hernandez v. Gonzales,
497 F.3d 919, 922–23 (9th Cir. 2007) [16-year-old tried as adult for voluntary manslaughter was
convicted under INA §101(a)(48)(A)]; Vieira Garcia v. INS, 239 F.3d 409, 414–15 (1st Cir. 2001)
[upholding BIA decision that a 17-year-old tried as an adult under RI law was an aggravated felon and
equal protection not violated]; But see 22 CFR §40.21(a)(2)(i)(A) [child under 15 will always be
considered a juvenile for purposes of INA even where tried as adult]; 9 FAM 302.3-2(B)(8)(d) [acts
committed under 15 not considered a conviction and acts committed between 15 and 18 not
considered to be a crime resulting in inadmissibility unless the person tried and convicted as an adult
for a felony involving violence]. Page 102
(3) Petty Offense—An alien (whether or not a minor) is not inadmissible for a single CIMT if the CIMT is
for a petty offense. A conviction (or admission) is considered a petty offense: “if the maximum penalty
possible for the crime of which the alien was convicted … did not exceed imprisonment for one year
and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in
excess of 6 months (regardless of the extent to which the sentence was ultimately executed).” INA
§212(a)(2)(A)(ii)(II). An undesignated probationary sentence, unlike an indeterminate sentence, is not
considered a felony punishable by more than one year imprisonment, where the court has designated
it a misdemeanor punishable by a maximum term of imprisonment of 6 months. Lafarga v. INS, 170
F.3d 1213 (9th Cir. 1999) [although an indeterminate sentence under Matter of D-, 20 I&N Dec. 827
(BIA 1994) requires the BIA to look at the maximum possible sentence, an undesignated sentence
does not]. But see Matter of Ruiz-Lopez, 25 I&N Dec. 551, 557 (BIA 2011) [where the maximum
penalty is 5 years, a presumptive sentence of 0-60 days does not make the conviction a petty offense];
Vartelas v. Holder, 620 F.3d 108, 115-16 (2d Cir. 2010), overruled on other grounds, 566 U.S.
257(2012) [where maximum sentence under 18 USC §371 is 5 years, a Sentencing Guideline range of
under one year is not relevant to determine a petty offense]; Mendez-Mendez v. Mukasey, 525 F.3d
828, 832–35 (9th Cir. 2008) [where the maximum statutory penalty for bribery was punishable by 15
years, the conviction is not a petty offense, even if the maximum Sentencing Guidelines provide for 6
months]; Mejia-Rodriguez v. Holder, 558 F.3d 46, 50 (1st Cir. 2009) [the statute, not the Sentencing
Guidelines establish the maximum possible sentence]. See also Ceron v. Holder, 747 F.3d 773, 777-78
(9th Cir. 2014) (en banc) [the minimum sentence under California’s wobbler provision is one year for a
misdemeanor and therefore previous cases describing it as 6 months such as Garcia-Lopez v.
Ashcroft, 334 F.3d 840 (9th Cir. 2003) and Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. 2004) were
overruled].
If there was no conviction but the person admits facts, the petty offense exception applies and the
alien is not inadmissible so long as the maximum sentence that could have been imposed does not
exceed one year. INA §212(a)(2)(A)(ii)(II). The petty offense exception is not applicable if more than
one CIMT offense has been committed or admitted. Matter of Jurado, 24 I&N Dec. 29, 34–35 (BIA
2006) [where there was a second CIMT, the “stop-time” rule applied because the petty offense
exception only applies to the first CIMT]; Matter of Wood, 12 I&N Dec. 170, 176 (BIA 1967). However,
it remains effective where one of the 2 offenses was not for a CIMT. Matter of Garcia-Hernandez, 23
I&N Dec. 590, 594–95 (BIA 2003) [applicant who was convicted of a petty offense that was a CIMT
and a second offense (battery) that was not a CIMT, he is not barred from cancellation, because he
has not been convicted of an offense under §212(a)(2)]. However, where the maximum penalty
possible for a misdemeanor that is a CIMT is one year, the person has been convicted of a crime
described under INA §237(a)(2) and is therefore barred from non-LPR cancellation under INA
§240A(b)(1)(C) even if it falls within the petty offense exception. Matter of Cortez Canales, 25 I&N Dec.
301 (BIA 2010) [reading INA §240A(b)(1)(C) to prohibit cancellation if the conviction is one “described
under” 237(a)(2) and it need not be within 5 years of admission; respondent’s conviction for
misdemeanor welfare fraud under Cal. Welf. & Instit. Code §10980(c)(2) was such a conviction
because it carried a penalty of one year despite it being a “petty offense”]; Matter of Almanza-Arenas,
24 I&N Dec. 771, 776 (BIA 2009), rev’d on other grounds, Almanza-Arenas v. Lynch, 815 F.3d 469 (9th
Cir. 2015, amended 2016) (en banc) [arriving alien status does not bar the use of a conviction
“described under” INA §237(a)(2) to bar 10-year cancellation even if the conviction is also a petty
offense]; Hernandez v. Holder, 783 F.3d 189 (4th Cir. 2015) [followed Cortez Canales under Chevron
where CIMT was petty offense but was a crime described under §237(a)(2), thereby making applicant
ineligible for cancellation]; Coyomani-Cielo v. Holder, 758 F.3d 908 (7th Cir. 2014) [following Cortez
under Chevron deference and found that while the applicant would not have been inadmissible for a
CIMT because of the petty offense exception, the same conviction, domestic battery, could be used to
bar cancellation as an aggravated felony despite his not committing the crime after admission];
Vasquez-Hernandez v. Holder, 590 F.3d 1053 (9th Cir. 2010) [petty offense exception is not applicable
to domestic violence conviction and petitioner was therefore ineligible for cancellation], but see
Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1088-93 (9th Cir. 2017) [Cortez Canales interpretation
that the Page 103 BIA need not consider whether the CIMT was within 5 years of admission is not
entitled to Chevron deference].
If the CIMT is punishable by imprisonment of less than a year and a petty offense, however, the
respondent is not ineligible for non-LPR cancellation because the conviction is not described under
INA §237(a)(2). Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010). A petty offense may also not trigger
the “stop-time” rule. Matter of Garcia, 25 I&N Dec. 332 (BIA 2010) [a conviction for a single CIMT that
is a petty offense does not “stop time” under INA §240A(d)(1) for LPR cancellation because the rule is
only applicable to an “offense referred to in section 212(a)(2)” and a petty offense is not such an
offense]; Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003) [the “stop-time” rule did not bar
cancellation where first conviction was a petty offense and second conviction occurred after
respondent accrued 7 years of continuous residence].DOS takes the position that the petty offense
exception is not applicable to drug cases. Correspondence in March-May, 1989 of Odom, Chief of
Advisory Opinions Division, DOS, reprinted in 66 No. 36 Interpreter Releases 1042–43, 1052–55
(Sept. 18, 1989). IMMACT90 appears to support that view. INA §212(a)(2)(A)(ii) refers to exceptions
only for CIMTs. The determination of whether an offense comes within the petty offense exception is
based upon the status of the law at the time the alien sought entry and not at the time of the criminal
act. Squires v. INS, 689 F.2d 1276 (6th Cir. 1982).
(4) Political Offenses—Purely political offenses are not crimes for purpose of this section. INA §212(a)(2)
(A)(i)(I). DOS states that purely political offenses include ones which are “based on fabricated charges
or predicated upon repressive measures against racial, religious or political minorities.” 22 CFR
§40.21(a)(6). This view is consistent with the legislative history, Conf. Rep. No. 82-2096 (1952),
reprinted in 1952 U.S.C.C.A.N. 1753, 1754, 1952 WL 3083 and case law interpreting earlier identical
provisions. See Matter of K-, 4 I&N Dec. 108 (CO 1950); Matter of B-, 1 I&N Dec. 47 (BIA, AG
1941).The BIA held that the offense must “be completely and totally ‘political’ in order to qualify for the
CIMT exception” and therefore the balancing test for the serious nonpolitical crime exception for
asylum/withholding was inapplicable. Matter of O’Cealleagh, 23 I&N Dec. 976, 981 (BIA 2006)
[respondent’s conviction for aiding and abetting the murder of two British corporals was not purely a
political offense because it was not fabricated]. In O’Cealleagh the Board specified 3 types of political
crimes: (1) baseless, trumped-up, or fabricated charges; (2) acts directed against the state, such as
treason, sedition, or espionage; and (3) a common offense such as murder, assault, or theft that is so
connected with a political act that the offense is regarded as political. 23 I&N Dec. at 980. One circuit
has upheld a BIA decision that the political offense exception does not apply as a defense to a
deportation charge based solely on terrorist activity. McAllister v. U.S. Att’y Gen., 444 F.3d 178, 188
(3d Cir. 2006) [upholding under Chevron, a BIA determination that the political offense exception did
not apply to a deportation charge under INA §237(a)(4)(B)].
(5) Defining a CIMT—S. Rpt. No. 1515 (1950) at 351 [“an act of baseness, vileness, or depravity, in the
private and social duties which a man owes to his fellow man or to society”]. The BIA defines a CIMT
as a crime that “refers generally to conduct which is inherently base, vile, or depraved, and contrary to
the accepted rules of morality and the duties owed between persons or to society in general.… Moral
turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or
malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a
crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571
(8th Cir. 1995) (emphasis added); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989); Matter of Flores,
17 I&N Dec. 225, 227 (BIA 1980). See Marmolejo-Campos v. Holder, 558 F.3d 903, 907–12 (9th Cir.
2009) (en banc) [Chevron deference applies to BIA’s interpretation of CIMTs and citing other circuits].
For a crime to be a CIMT “only truly unconscionable conduct surpasses the threshold of moral
turpitude and so the crime must be more than serious.. [and] typically involve grave acts of baseness
or depravity such as murder, rape, and incest.” Ramirez-Contreras v. Sessions, 858 F.3d 1298, 1306
(9th Cir. 2017) [finding fleeing a police officer under Cal. Veh. Code §2800.2 is not categorically a
CIMT]. Statute not void for vagueness, Jordan v. DeGeorge, 341 U.S. 223, 230 (1951); Dominguez-
Pulido v. Lynch, 821 F.3d 837, 842 (7th Cir. 2016). Page 104 But see Arias v. Lynch, 834 F.3d 823,
830-36 (7th Cir. 2016) (Posner, J), [strongly criticizing the idea and definition of CIMTs calling it a
“stale, antiquated, and worse meaningless phrase” and stating that attempts at defining it as
“approach[ing] gibberish”]; Tijani v. Holder, 628 F.3d 1071, 1078-80 (9th Cir. 2010) [BIA is not due
deference in construing the elements of a state criminal statute].The AG defined a CIMT as involving
“both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness,
willfulness, or recklessness.” Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1 and 706 n.5 (AG 2008),
rev’d on other grounds, Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014). Although the AG vacated
Silva-Trevino in its entirety and remanded the case to the BIA for a new decision, Matter of Silva-
Trevino, 26 I&N Dec. 550 (AG 2015) he said, in doing so, that nothing in his order was intended to
affect the BIA’s determination that a CIMT entails “reprehensible conduct and some form of scienter.”
Id at 553 n.3. At least some circuits view the CIMT determination as a sliding scale between the nature
of the conduct and the state of mind necessary for conviction. See e.g., Perez Alonzo v. Lynch, 821
F.3d 951 (8th 2016) [Iowa Code §708.1(2) regarding simple assault is a divisible statute and case
remanded to determine under modified categorical approach whether petitioner committed a CIMT
because some elements require intent but do not necessarily involve reprehensible conduct and others
involve both the necessary violent conduct and state of mind to be a CIMT]. Matter of Solon, 24 I&N
Dec. 239, 242 (BIA 2007).
(6) Inherent Nature of Crime—It is the “inherent nature of the crime as defined by statute and interpreted
by the courts as limited and described by the record of conviction” and not the facts and circumstances
of the particular person’s case that determines whether it is a CIMT. Matter of Short, 20 I&N Dec. 136
(BIA 1989). And a categorical analysis will determine what is the least culpable conduct that might
inherently be considered a CIMT. see Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016) [the
categorical approach determines whether the offense is a CIMT which requires us to focus on the
minimum conduct that has a realistic probability of being prosecuted under the statute of conviction
rather than on the facts underlying the respondent’s particular violation of that statute]. See also Cano
v. U.S. Att’y Gen., 709 F.3d 1052 (11th Cir. 2013) [resisting an officer with violence under Fla. Stat.
§843.01 is a CIMT because it requires intentional violence against the officer]; Hyder v. Keisler, 506
F.3d 388, 391–92 (5th Cir. 2007) [misuse of Social Security number is a CIMT notwithstanding
petitioner’s argument that he was misled by others and did not personally commit fraud]; Omagah v.
Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002); Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); Okabe v.
INS, 671 F.2d 863 (5th Cir. 1982); McKenzie v. Savoretti, 200 F.2d 546, 548 (5th Cir. 1952); Giglio v.
Neeley, 208 F.2d 337 (7th Cir. 1953); Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957). Moreover, it is
not “the seriousness of the offense nor the severity of the sentence imposed” that determines a CIMT.
Matter of Serna, 20 I&N Dec. 579 (BIA 1992). For example, not all crimes involving injurious touching
of another reflect moral depravity, “even though they may carry the label of assault, aggravated
assault, or battery under the law.” Matter of Sanudo, 23 I&N Dec. 968, 971 (BIA 2006) [domestic
battery under Cal. Penal Code §§242 and 243(e)(1) is not a CIMT]. Moreover, simply because the
statute requires evil intent, it “is not enough to convert a crime that is not serious into one of moral
turpitude.” Rodriguez-Herrera v. INS, 52 F.3d 238, 241 (9th Cir. 1995). The “violation of statutes which
merely license or regulate and impose criminal liability without regard to evil intent do not involve moral
turpitude.” Matter of G-, 7 I&N Dec. 114, 118 (BIA 1956). Rather, the crime must be one which is per se
morally reprehensible and intrinsically wrong or malum in se. Serna, supra; Beltran-Tirado v. INS, 213
F.3d 1179, 1184 (9th Cir. 2000) [false attestation on an I-9 and using a false SSN are malum
prohibitum but not malum in se]. But see Mehboob v. U.S. Att’y Gen., 549 F.3d 272 (3d Cir. 2008)
[under 18 Pa. Cons. Stat. §3126(a)(8) a strict liability sex offense is a CIMT even in the absence of
mens rea where there must be purposeful conduct involving touching a minor].
(7) Necessarily Turpitudinous—Before one can be convicted of a CIMT, the statute by its terms, must
necessarily involve moral turpitude, Matter of L-V-C-, 22 I&N Dec. 594, 603 (BIA 1999) [reversing
Matter of Goldeshtein regarding structuring financial transactions because the “statutory provision …
encompasses at least some violations that do not involve Page 105 moral turpitude.”]; Matter of
Esfandiary, 16 I&N Dec. 659 (BIA 1979); Matter of Garcia, 11 I&N Dec. 521 (BIA 1966); Matter of C-, 5
I&N Dec. 65 (BIA 1953), Matter of B-, 6 I&N Dec. 98, 106 (BIA 1954), or the courts must have
interpreted the statute to require moral turpitude. Matter of Bart, 20 I&N Dec. 436 (BIA 1992) [where
GA statute did not require intent to defraud, bad check conviction under statute deemed to be a CIMT
because of judicial interpretation requiring intent to defraud]. The Seventh Circuit has held in Arias v.
Lynch, 834 F.3d 823, 826-30 (7th Cir. 2016), for example, that 42 USC §408(a)(7)(B), the statute
making it a federal crime to misrepresent a Social Security number to be one’s own to obtain Social
Security benefits or “for any other purpose” does not necessarily involve “evil intent” or be malum in se
and therefore is not categorically a CIMT. However, the BIA held that the concealment of proceeds
from a crime is a CIMT regardless of whether the concealed offense is a CIMT. Matter of Tejwani, 24
I&N Dec. 97 (BIA 2007), rev’d Tejwani v. U.S. Att’y Gen., 349 F.App’x 719 (3d Cir. 2009).
(8) Categorical and Modified Categorical Approaches to Analyze Whether Conviction Is CIMT
(a) BIA Analysis—In light of several Supreme Court decisions infra and remands from the AG, the
Board in Matter of Silva-Trevino, 26 I&N Dec. 826, 827 (BIA 2016) held that the “categorical and
modified categorical approaches provide the proper framework for determining when a conviction is
a crime involving moral turpitude.” The BIA declined to use the “circumstance based” approach in
Nijhawan v. Holder, 557 U.S. 29 (2009) and adopted, “unless controlling circuit law expressly
dictates otherwise,” the “realistic probability” test, focusing on the minimum conduct necessary for a
conviction, in deciding whether an offense categorically qualifies as a CIMT. Silva-Trevino, 26 I&N
Dec. at 830-33 & n.6.
In Matter of Chairez, 26 I&N Dec. 349, 353-54 (BIA 2014) the BIA, in light of Descamp determined
it no longer had the authority to apply its divisibility analysis in Matter of Lanferman, 25 I&N Dec.
721 (BIA 2012). In Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) (Chairez III) the BIA on remand
from the AG recognized that the “divisibility” analysis embodied in Descamps and Mathis applies in
immigration proceeding and the BIA must follow applicable circuit law when seeking to determine
what Descamp and Mathis require. 26 I&N Dec. at 819-20. It recognized in Chairez III that different
mental states are not elements of the crime if the jury, as in Utah, are not required to reach a
unanimous verdict with respect to the defendants mental state to convict him of discharge of a
firearm under Utah Code Ann. §76-10-508.1. In Matter of Chairez-Castrejon, 27 I&N Dec. 21, 22
(BIA 2017) (Chairez IV) it reaffirmed the continuing validity of Mathis and despite the respondent’s
plea to “knowingly” committing the crime, the BIA found that Mathis’ divisibility analysis allows the IJ
only to “peek” at the relevant jury instructions and charging document to determine whether the
statute is divisible, and not to rely on the factual plea to determine the elements of the crime.
The AAO also adheres to the categorical approach in determining whether crimes constitute CIMTs.
Matter of A-A-N-V- (AAO Feb. 26, 2016), AILA Doc. No. 16090635 [finding that Fla. Stat. §812.014
(theft, 3d degree felony), Fla. Stat. §810.02 (burglary, 3d degree felony), and Fla. Stat. §810.06
(possession of burglary tools, 3d degree felony) were not under categorical approach CIMTs].
(b) Federal Courts—The Supreme Court in Descamps v. U.S., 570 U.S. 254 (2013), cast serious
doubt on the continuing validity of the AG’s and the Board’s prior approach in Silva-Trevino and
Lanferman and both cases are no longer the law before the BIA, supra. In Descamps, the Court
provided a narrow reading of the modified categorical approach. In rejecting the Ninth Circuit’s
approach in U.S. v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam) and
other cases that permitted the modified categorical approach where an indivisible statute was
overbroad, the Court held that the modified categorical approach will not apply “when the crime of
which the defendant was convicted has a single, individual set of elements.” 570 U.S. at 258. The
Court rejected what it regarded as an effort to circumvent the categorical approach by an inquiry
into facts and held the modified approach has limited utility only to the Page 106 categorical
approach “when a divisible statute, listing potential offense elements in the alternative, renders
opaque which element played a part in the defendant’s conviction.” 570 U.S. at 260. In Mathis v.
U.S., 579 U.S. __, 136 S.Ct. 2243 (2016) the Court addressed the methodology for determining
whether a statute is divisible, reaffirmed Descamps, and clarified the point that disjunctive statutory
language does not necessarily render a statute divisible unless the statutory alternatives are
“elements” and not “brute facts.” In light of Descamps and Mathis the Board, after remand from the
AG, has adopted Descamps and Mathis and clearly rejected its former decisions in Matter of
Lanferman and Chairez I & II. Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) (Chairez III); Matter of
Chairez-Castrejon, 27 I&N Dec. 21, 22 (BIA 2017) (Chairez IV).
Federal courts have also utilized the categorical and modified categorical approach to determine
whether a conviction is a CIMT. See e.g., Conejo-Bravo v. Sessions, 875 F.3d 890 (9th Cir. 2017)
[Cal. Veh. Code §20001(a) is divisible and conviction for felony hit and run was a CIMT precluding
cancellation]; Laryea v. Sessions, 871 F.3d 337 (5th Cir. 2017) [under modified categorical
approach evading arrest, a class A misdemeanor, in violation of Tex. Pen. Code §38.04 is not a
CIMT]; Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1086-89 (9th Cir. 2017) [A conviction under
Idaho Code §18-2403 for petit theft is not categorically a CIMT because it includes temporary
taking of property and on the record the defendant’s rap sheet was insufficient to demonstrate it
was a CIMT under the modified categorical approach]; Ildefonso-Candelario v. U.S. Att’y Gen., 866
F.3d 102, 104-07 (3d Cir. 2017) [under categorical approach a violation of 18 Pa. Cons. Stat. §5101
for misdemeanor obstructing the administration of law or other governmental function is not a
CIMT]; Sotnikau v. Lynch, 846 F.3d 731 (4th Cir. 2017) [Involuntary manslaughter under Va. Code
Ann. §18.2-36 is not categorically a CIMT because it does not require intent or conscious disregard
of substantial and unjustified risk]; Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016) [following
Mathis the court found that the different mental states—intentionally, knowingly, or recklessly—to
obtain a conviction for misdemeanor assault under Texas Pen. Code §22.01(a)(1) were means and
not elements of the crime and the conviction therefore was categorically not a CIMT]; Alonzo v.
Lynch, 821 F.3d 951, 957-63 (8th Cir. 2016) [Iowa Code §708.1(2) regarding simple assault is a
divisible statute and case remanded to determine under modified categorical approach whether
petitioner committed a CIMT]; Rosales Rivera v. Lynch, 816 F.3d 1064 (9th Cir. 2016) [written
perjury under Cal. Penal Code §118 is not a CIMT because the generic definition of perjury is oral,
the statute is divisible between written and oral perjury, respondent was convicted of written perjury
only, and the statute neither encompasses fraud or grave acts of baseness or depravity]; Almanza-
Arenas v. Lynch, 815 F.3d 469, 475-82 (9th Cir. 2015, amended 2016) (en banc) [Cal. Veh. Code
§10851(a) is not a divisible statute and because it punishes both permanent and temporary
deprivation of a vehicle it cannot, under Descamps, be a CIMT]; Avendano v. Holder, 770 F.3d 731,
734-35 (8th Cir. 2014) [terrorist threats under Minn. Stat. §609.713 sub. 1 post-Descamps is a
CIMT on theory that different mental states make the statute divisible and respondent was
convicted under recklessness prong]; Hernandez-Cruz v. U.S. Att’y Gen., 764 F.3d 281, 285-87 (3d
Cir. 2014) [child endangerment under 18 Pa. Cons. Stat. §4304(a)(1) is not an aggravated felony
because the least culpable conduct to sustain a conviction does not implicate moral turpitude];
Mejia v. Holder, 756 F.3d 64 (1st Cir. 2014) [where Mass. Gen. Laws ch. 266 §30A is divisible
because theft conviction could be to permanently or temporarily deprive, court reversed finding of
CIMT and denial of special rule cancellation because BIA should have analyzed conviction under
modified categorical approach]; Efstathiadis v. Holder, 752 F.3d 591, 596-98 (2d Cir. 2014)
[analyzed Conn. Gen Stat. §53a-73a(a)(2), subjecting another person to sexual contact without
such person’s consent under the categorical approach and the minimum conduct criminalized by
the statute]; Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) [conviction under Canada Criminal Code
§268 is not categorically a CIMT]; Jean-Louis v. U.S. Att’y Gen., 582 F.3d 462 (3d Cir. 2009) [under
modified categorical approach the least culpable conduct under 18 Pa. Cons. Stat. §2701(b)(2) for
simple assault Page 107 against a child under 12 is reckless conduct that does not amount to a
CIMT]; Wala v. Mukasey, 511 F.3d 102, 107–10 (2d Cir. 2007) [the court held that burglary with an
intent to commit larceny is not necessarily a CIMT because under Shepard the court may only rely
on facts petitioner “necessarily pleaded” and here there was no plea of permanent deprivation of
property]; Cerezo v. Mukasey, 512 F.3d 1163, 1167 (9th Cir. 2008) [Duenas-Alvarez is not
applicable when the language of the statute is clearand “plainly and specifically criminalizes
conduct outside the contours of the federal definition”]; Quintero-Salazar v. Keisler, 506 F.3d 688
(9th Cir. 2007) [Cal. Penal Code §261.5(d) involving intercourse between a person 21 or older with
a minor under 16 is not categorically a CIMT]; Galeana-Mendoza v. Gonzales, 465 F.3d 1054,
1057-58 (9th Cir. 2006) [under modified categorical approach, DHS failed to establish that Cal.
Penal Code §243(e), domestic battery is a CIMT]; ]; Notash v. Gonzales, 427 F.3d 693, 696–97 (9th
Cir. 2005) [attempted entry of goods by means of a false statement in violation of 18 USC §542 is
not a CIMT]. But see Pierre v. U.S. Att’y Gen., 879 F.3d 1241 (11th Cir. 2018) [respondent failed to
show that it was a realistic probability under Duenas-Alvarez that a conviction under Fla. Stat.
§784.085 for battery of a child “by throwing, tossing, projecting, or expelling certain fluids or
materials” was not in all cases a knowing CIMT]; Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1243-46
(11th Cir. 2016) [least culpable conduct of abuse of elderly person or disabled adult under Fla. Stat.
§825.102(1) requires knowing or willful conduct and more than culpable negligence targeted at
vulnerable victims and therefore categorically is a CIMT even without actual bodily injury]; Villatoro
v. Holder, 760 F.3d 872 (8th Cir. 2014) [tampering with records under Iowa Code 715A.5 is a CIMT
and defendant failed to show there was a realistic probability that Iowa applies the statute to non-
turpitudinous conduct]; Gonzalez-Cervantes v. Holder, 709 F.3d 1265 (9th Cir. 2013) [following
Duenas-Alvarez no showing that the state courts have interpreted the misdemeanor sexual battery
statute Cal. Penal Code §243.4(e) to conduct that is not morally turpitudinous]; Serrato-Soto v.
Holder, 570 F.3d 686, 689–92 (6th Cir. 2009) [Miss. Code §97-19-85 involving the fraudulent use of
a SSN or identifying information to obtain goods is a CIMT]; Amouzadeh v. Winfrey, 467 F.3d 451,
455 (5th Cir. 2006) [finding conviction for 8 USC §1425(a), unlawful procurement of naturalization a
CIMT]; Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007) [communicating with a minor for
immoral purposes is a CIMT]; Hashish v. Gonzales, 442 F.3d 572, 575–76 (7th Cir. 2006) [quoting
Padilla v. Gonzales, 397 F.3d 1016 (7th Cir. 2005), for the use of the categorical approach in finding
CIMT]; Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1311 (11th Cir. 2006) [categorical approach
finding 2nd degree arson under Fla. law a CIMT]; Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th
Cir. 2005) [accomplice to residential burglary under Wash. Rev. Code §§9A.52.025(1) and
9A.08.020(3) is a CIMT under modified approach]. In a multi-section statute, where the conviction
does not reveal which section was violated, the court will look to the part of the statute that involves
the least culpability. Mehboob v. U.S. Att’y Gen., 549 F.3d 272, 276 (3d Cir. 2008) [under 18 Pa.
Cons. Stat. §3126, section (a)(8), indecent touching involved the least culpable conduct but was a
CIMT even in the absence of mens rea]. For a more complete discussion of the categorical and
modified categorical approach, see in this chapter ¶ V.I.9 (p.324), infra.
The Ninth Circuit’s categorical approach in regard to CIMTs is a two-step analysis. First, the court
identifies the elements of the statute of conviction, reviewing the BIAs conclusions de novo.
Second, it compares the elements of the statute to the generic definition of a CIMT and, giving
some degree of deference to the BIA, decides whether the conviction meets the definition. Vinh Tan
Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir. 2014) [misuse of a passport to facilitate an act of
international terrorism under 18 USC §1544 is categorically a CIMT].
(c) Documents Relevant to Modified Categorical Approach—In determining which documents may be
relied upon in engaging in the modified categorical approach, the Supreme Court has limited the
adjudicator in a case involving a conviction by jury to examination of “the indictment or information
and jury instructions,” or, if a guilty plea is at issue, to Page 108 examination of the plea agreement,
plea colloquy or “some comparable judicial record” of the factual basis for the plea. Nijhawan v.
Holder, 557 U.S. 29, 36 (2009) [quoting Taylor v. U.S., 495 U.S. 575, 602 (1990), and Shepard v.
U.S., 544 U.S. 13, 26 (2005)]. However, the Supreme Court has recognized in the aggravated
felony context that in certain limited circumstances, IJs and the BIA are not bound by the
categorical or modified categorical approaches and may rely upon documents outside the record of
conviction to establish a circumstance-specific element of the crime. Nijhawan v. Holder, 557 U.S.
29, 38 (2009). But the BIA has rejected this approach in the context of a CIMT. Matter of Silva-
Trevino, 26 I&N Dec. 826, 830 n.6 (BIA 2016) [rejecting circumstance based approach for crimes
involving the sexual abuse of a minor]. Courts, in the context of CIMTs, also adhere to the
traditional limitations on the documents that can be examined under the modified categorical
approach. See Cervantes v. Holder, 772 F.3d 583, 587-89 (9th Cir. 2014) [although Cal. Penal Code
§273.5(a) for willfully inflicting corporal injury on a spouse or cohabitant may, under the modified
categorical approach, be a CIMT, the IJ could not rely on the respondent’s description of the victim
on the stand because it went beyond the appropriate documents]; Oliva-Motta v. Holder, 746 F.3d
907 (9th Cir. 2013) [rejected Silva-Trevino use of additional documents and use of police report in
the case to establish the CIMT]; Jean-Louis v. U.S. Att’y Gen., 582 F.3d 462, 470–82 (3d Cir. 2009)
[rejected analysis in former AG opinion in Silva-Trevino that the evidentiary limitations of Shepard
and Taylor do not applyfor purposes of making moral turpitude determinations and finding that the
concerns raised in Babaisakov are limited to certain aggravated felonies]. See also Prudencio v.
Holder, 669 F.3d 472, 482 (4th Cir. 2012) [same]; Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1309
(11th Cir. 2011) [same]. But see Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) [following Matter of
Babaisakov, supra, and reinterpreting its own precedent post–Brand X, the court concluded the BIA
could rely on the presentence investigation report to establish whether crime is a CIMT because
“when deciding how to classify convictions under criteria that go beyond the criminal charge—such
as the amount of the victim’s loss, or whether the crime is one of ‘moral turpitude’ the agency has
discretion to consider evidence beyond the charging papers and judgment of conviction”];
Bombadilla v. Holder, 679 F.3d 1052, 1055 (8th Cir. 2012) [same]. For a more thorough discussion
of Nijhawan and its effect in cases involving the modified categorical approach, see in this chapter ¶
V.I.9.e (p.335), infra.
(d) Divisible Statutes—The Supreme Court has explained that a statute is divisible if it punishes more
than one distinct crime. Mathis, 136 S.Ct. at 2249; Descamps, 570 U.S. at 260. As a general rule,
unless a statute is divisible, if it encompasses both acts that do and do not involve moral turpitude,
deportability cannot be sustained. Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003)
[finding that Ariz. Law §28-697(A)(1) for aggravated drunk driving cited as a CIMT in Lopez-Meza is
not a CIMT, because statute is divisible and a person can be convicted for sitting in one’s own
driveway with the key in the ignition and a bottle of beer in his hand, which is not an “inherently
base, vile or depraved” act]; Pichardo v. INS, 104 F.3d 756, 760 n.6 (5th Cir. 1997); Hamdan v. INS,
98 F.3d 183, 187 (5th Cir. 1996); Matter of Short, 20 I&N Dec. 136 (BIA 1989)..If the statute is
divisible, the court may look to the record of conviction to determine what section the respondent
was convicted under. See Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999) [look to indictment,
plea, verdict, and sentence]; Matter of Sanudo, 23 I&N Dec. 968, 972–73 (BIA 2006) [CA domestic
battery conviction was not a CIMT where both the statute and the admissible portion of
respondent’s conviction did not reflect that the battery was injurious to the victim or that it involved
anything more that nonviolent touching]; Alonzo v. Lynch, 821 F.3d 951, 957-63 (8th Cir. 2016)
[Iowa Code §708.1(2) regarding simple assault is a divisible statute and case remanded to
determine under modified categorical approach whether petitioner committed a CIMT]; Singh v.
DHS, 517 F.3d 638, 643–46 (2d Cir. 2008) [clear and convincing evidence established that
petitioner was convicted of assault under N.Y. Penal Law §120.05(1) by upholding the admission of
a Conditions of Probation document, a Certificate of Disposition, and a post-conviction rap sheet
which individually would be insufficient but in combination proved the conviction]; Chanmouny v.
Ashcroft, 376 F.3d 810, 813 (8th Cir. 2004) Page 109 [“The record of conviction typically includes
the indictment or information, plea, verdict or judgment, and sentence” and transcript of plea
indicated purpose to terrorize rather than reckless disregard]; Zaffarano v. Corsi, 63 F.2d 757 (2d
Cir. 1933) [look only at record of conviction—”charge (indictment), plea, verdict and sentence”—to
determine CIMT]; Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); U.S. v. Kiang, 175 F.Supp.2d 942,
950 (E.D. Mich. 2001) [denaturalization case where court addressed divisibility issue and looked to
record of conviction]. The record of conviction should only be used to determine the offense of
conviction, not to speculate regarding the offense actually committed U.S. v. Kennedy, 881 F.3d 14,
21-24 (1st Cir. 2018). The record does not include the prosecutor’s statement during sentencing,
Matter of Cassisi, 10 I&N Dec. 136 (BIA 1963), or an admission made by a respondent in removal
proceedings, Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996), but does include “other documents
admissible as evidence in proving a criminal conviction.” Matter of Sweetser, 22 I&N Dec. 709, 714
(BIA 1999) [criminal negligent child abuse not aggravated felony]. The court must also analyze “the
elements of the crime that the government must prove before obtaining a conviction” to determine
whether it is a CIMT. Smalley v. Ashcroft, 354 F.3d 332, 337 (5th Cir. 2003) [money laundering is a
CIMT].
(e) Least Culpable Conduct—In determining whether a statute is categorically a CIMT the applicant
must look to the least culpable conduct (i.e., the least of the acts criminalized) under the statute and
determine if that is a CIMT. Rosa Pena v. Sessions, 882 F.3d 284, 287-89 (1st Cir. 2018) [did not
articulate how the least culpable conduct would be per se morally reprehensible and intrinsically
wrong; court also discussed that acting willfully and maliciously under the Mass. Gen. Laws ch. 266
§2 (arson statute) does not necessarily require a person to act with evil intent or a corrupt mindset
thus remanding to BIA to determine CIMT].
(f) Realistic Probability vs Minimum Reading Approach—Following Gonzalez v. Duenas-Alvarez, 549

U.S. 183, 193 (2007) there is a split in the circuits as to whether the “realistic probability” doctrine
applies to CIMTs. Under the realistic probability doctrine an overbroad statute would not be
considered a CIMT if, but only if, there is “a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U.S.
at 193. Other circuits take the view that the court need only determine the minimum conduct
defined under the statute and whether that constitutes a CIMT. Compare cases using the “realistic
probability approach,”Matter of Silva-Trevino, 26 I&N Dec. 826, 831-33 (BIA 2016) [“we will apply
the Supreme Court’s realistic probability test … unless controlling circuit law expressly dictates
otherwise”]; Matter of Wu, 27 I&N Dec. 8, 15-16 (BIA 2017) [finding that Cal Penal Code §245(a)(1)
is categorically a CIMT and despite its requirement of a unique mental state there is no realistic
probability that it will be used to prosecute someone whose conduct is not turpitudinous]; Matter of
Hernandez, 26 I&N Dec. 397, 398 (BIA 2014); Cano-Oyarzabal v. Holder, 774 F.3d 914, 916-17 (7th
Cir. 2014); Villatoro v. Holder, 760 F.3d 872, 877 (8th Cir. 2014); Gonzalez-Cervantes v. Holder, 709
F.3d 1265, 1266 (9th Cir. 2013); and Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir.
2011) with the “minimum reading of the statute” test, Jean-Louis v. U.S. Att’y Gen., 582 F.3d 462,
481-82 (3d Cir. 2009) [declining to adopt the realistic probability approach for CIMTs]; Cisneros-
Guerrerro v. Holder, 774 F.3d 1056, 1058-59 (5th Cir. 2014) [applying the minimum reading of the
statute]; Mercado v. Lynch, 823 F.3d 276 (5th Cir. 2016) [following 5th Cir. approach]. See also
Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017) [realistic probability analysis addresses the
application of the statute, not state enforcement practices].
(9) Mental State Needed for CIMT—The AG defined a CIMT as involving not only reprehensible conduct,
but also “some degree of scienter, whether specific intent, deliberateness, willfulness, or
recklessness.” Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1 & 706 n.5 (AG 2008), rev’d on other
grounds, Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014).Although the AG vacated Silva-Trevino
in its entirety and remanded the case to the BIA for a new decision, Matter of Silva-Trevino, 26 I&N
Dec. 550 (AG 2015) he said, in doing so, that nothing in his order intended to affect the BIA’s
determination that a CIMT entails Page 110 “reprehensible conduct and some form of scienter.” Id at
553 n.3. One must look at what criminal mental state is necessary for a conviction under the statute.
Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017) [criminally negligent homicide under N.Y. Penal
Law §125.10 is not categorically a CIMT because it may be committed only with criminal negligence
and does not require intent or a conscious disregard of a substantial and unjustifiable risk]; Matter of
Wu, 27 I&N Dec. 8 (BIA 2017) [finding that Cal. Penal Code §245(a)(1) is categorically a CIMT despite
its requirement of a unique mental state greater than recklessness or criminal negligence but not
requiring subjective appreciation of the facts]; Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996); Matter
of Medina, 15 I&N Dec. 611 (BIA 1976). But where the mental state necessary to commit the crime is
uncertain, the courts will remand the matter to the BIA for clarification. Rosa Pena v. Sessions, 882
F.3d 284, 287-89 (1st Cir. 2018) [court discussed that acting willfully and maliciously under the Mass.
Gen. Laws ch. 266 §2 (arson statute) does not necessarily require a person to act with evil intent or a
corrupt mindset thus remanding to BIA to determine CIMT]; Coelho v. Sessions, 864 F.3d 56 (1st Cir.
2017) [Massachusetts definition of “recklessness” does not require that the defendant be subjectively
aware of the risk so court remanded conviction for assault and battery with a deadly weapon to
determine whether respondent’s mental state under Massachusetts law is sufficient for a CIMT].
Although evil intent signifies a CIMT, willfulness in the commission of the crime does not, by itself,
suggest that it is a CIMT. Notash v. Gonzales, 427 F.3d 693, 698 (9th Cir. 2005) [willfully making a
false statement does not equate to evil intent]; Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993). Under
the statute, evil intent must be explicit or implicit given the nature of the crime. Gonzalez-Alvarado v.
INS, 39 F.3d 245, 246 (9th Cir. 1994). Intent to commit a crime and evil intent are not the same. Matter
of Short, supra; Goldeshtein v. INS, supra. But some BIA and federal court decisions take the position
that while moral turpitude often involves evil intent, “such a specific intent is not a prerequisite.” Matter
of Torres-Varela, 23 I&N Dec. 78, 83–84 (BIA 2001); Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA
1999) (en banc). See also U.S. v. Santacruz, 563 F.3d 894, 896–97 (9th Cir. 2009) [possession of child
pornography under 18 USC §2252A(a)(5)(B) is CIMT even if it is not a specific intent crime]. But see
Efstathiadis v. Holder, 752 F.3d 591, 596-98 (2d Cir. 2014) [certified question to Conn. S.Ct. as to the
level of mens rea required under Conn. Gen. Stat. §53a-73a(a)(2) when subjecting another person to
sexual contact without such person’s consent because the intent to receive sexual gratification alone is
not evil and strict liability would not render crime a CIMT]; Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010)
[conviction under Canada Criminal Code §268 for aggravated assault is not categorically a CIMT
because it does not require specific intent to injure, does not involve a special trust relationship
between the parties, and does not require that the assault cause death or even serious injury]; Matter
of Khourn, 21 I&N Dec. 1041, 1046 (BIA 1997) [evil intent is a prerequisite for a CIMT]; Matter of
Flores, 17 I&N Dec. 225, 227 (BIA 1980) [evil intent is the essence of moral turpitude]; Matter of
Abreu-Semino, 12 I&N Dec. 775, 777 (BIA 1968). There may also be rare instances when intent is not
even required as in statutory rape. Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976); Marciano v. INS,
450 F.2d 1022 (8th Cir. 1971); Matter of Jimenez-Cedillo, 27 I&N Dec. 1, 5 (BIA 2017) [no culpable
mental state regarding the victim’s age is required in a statutory rape case where the victim is
particularly young (14 or under) or the age differential between the victim and perpetrator is
significant], rev’d, Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018) [BIA failed to explain its
change from long standing precedent that sexual solicitation of a minor was only a CIMT if the
perpetrator knew the victim’s age]; Matter of Dingena, 11 I&N Dec. 723 (BIA 1966). See also Mehboob
v. U.S. Att’y Gen., 549 F.3d 272 (3d Cir. 2008) [strict liability sex offense under Pennsylvania law is a
CIMT where there must be purposeful conduct involving touching a minor].
Also, recklessness may be enough intent for the commission of a CIMT, Matter of Solon, 24 I&N Dec.
239 (BIA 2007) [in third-degree assault case, criminally reckless conduct may be sufficient depending
on level of harm required under the statute]. The BIA has extended it even further in Matter of Leal, 26
I&N Dec. 20 (BIA 2012) aff’d Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) to include a person who fails
to perceive a risk of harm due to voluntary intoxication equating it to consciously disregarding a known
risk. See also Baptiste v. U.S. Att’y Gen., 841 F.3d 601, 621-23 (3d Cir. 2016) Page 111 [conviction for
reckless second-degree aggravated assault under N.J. Stat. Ann. §2A:90-1 is a CIMT because a
conviction requires recklessly causing serious bodily injury under circumstances manifesting extreme
indifference to the value of human life]; Estrada-Rodriguez v. Lynch, 825 F.3d 397, 403-06 (8th Cir.
2016) [assault in first degree, a Class A misdemeanor under Arkansas Code Annotated §5-13-205 is a
CIMT because it criminalizes recklessly endangering a life]; Avendano v. Holder, 770 F.3d 731, 734-35
(8th Cir. 2014) [terrorist threats under Minn. Stat. §609.713 sub. 1 post-Descamps is a CIMT on theory
that different mental states make the statute divisible and respondent was convicted under
recklessness prong]; Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) [reckless conduct under N.H. Rev. Stat.
Ann. §631:3 is CIMT because scienter is satisfied by “recklessness” and “reprehensible conduct” is
satisfied by serious bodily injury]; Hernandez-Perez v. Holder, 569 F.3d 345 (8th Cir. 2009) [Iowa Code
§726.6 regarding child endangerment resulting in bodily injury is a CIMT because it requires a
conscious disregard of a substantial risk to a child in the person’s care]; Keungne v. U.S. Att’y Gen.,
561 F.3d 1281 (11th Cir. 2009) [Ga. Code Ann. §16-5-60(b) requires a sufficiently culpable mental state
for a CIMT by penalizing an individual for “consciously disregarding a substantial and unjustifiable risk”
of harm to others that goes beyond negligence]; Godinez-Arroyo v. Mukasey, 540 F.3d 848 (8th Cir.
2008) [recklessly causing serious physical injury to another under Missouri second-degree assault
statute, Mo. Rev. Stat. §565.060(3), is CIMT because recklessness is sufficient where serious bodily
injury is involved]; Knapik v. Ashcroft, 384 F.3d 84, 88–90 (3d Cir. 2004) [BIA’s longstanding position is
that crimes involving recklessness may be CIMTs]; Matter of Wu, 27 I&N Dec. 8 (BIA 2017) [finding
that Cal Penal Code §245(a)(1) is categorically a CIMT despite its requirement of a unique mental
state greater than recklessness or criminal negligence but not requiring subjective appreciation of the
facts]; Matter of Medina, 15 I&N Dec. 611 (BIA 1976) [recklessness sufficient for CIMT under IL
aggravated-assault statute]. But see Sotnikau v. Lynch, 846 F.3d 731 (4th Cir. 2017) [Involuntary
manslaughter under Va. Code ¶18.2-36 is not categorically a CIMT because it does not require intent
or conscious disregard of substantial and unjustified risk]; Gomez-Perez v. Lynch, 829 F.3d 323 (5th
Cir. 2016) [following Mathis the court found that the different mental states—intentionally, knowingly, or
recklessly—to obtain a conviction for misdemeanor assault under Texas Pen. Code §22.01(a)(1) were
means and not elements of the crime and the conviction therefore was categorically not a CIMT];
Mahn v. U.S. Att’y Gen., 767 F.3d 170, 173-75 (3d Cir. 2014) [reckless endangerment under 18 Pa.
Cons. Stat. §2705 encompasses only reckless conduct that may put a person in danger and therefore
is not a CIMT]; Jean-Louis v. U.S. Att’y Gen., 582 F.3d 462 (3d Cir. 2009) [under modified categorical
approach the least culpable conduct under 18 Pa. Cons. Stat. §2701(b)(2) for simple assault against a
child under 12 is reckless conduct that does not amount to a CIMT]; Reyes-Morales v. Gonzales, 435
F.3d 937, 944–45 (8th Cir. 2006) [IJ erred in finding Minn. Stat. §609.749, regarding harassing
telephone calls, was a CIMT solely because it encompassed threatening behavior without determining
whether there was malicious intent and a reckless state of mind].
(10) Legally Coherent Statute—The statute must also be legally coherent to support a CIMT. Gill v. INS,
420 F.3d 82, 89–91 (2d Cir. 2005) [attempted reckless assault under N.Y. Penal Law §120.05(4) is not
a CIMT because “attempted” recklessness is legally incoherent]; Knapik v. Ashcroft, 384 F.3d 84, 90–
94 (3d Cir. 2004) [attempted reckless endangerment is a nonsensical crime and therefore could not be
a CIMT because it requires intent to meet the “attempt” part but recklessness to do the crime].
(11) Conspiracy to Commit a CIMT—Conspiracy to commit a crime can only result in inadmissibility when
the underlying offense is a CIMT. Matter of Short, 20 I&N Dec. 136 (BIA 1989); Matter of Flores, 17
I&N Dec. 225 (BIA 1980); Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993).
(12) Burden of Proof—The AG has determined that the applicant for admission has the burden in
removal proceedings involving inadmissibility to demonstrate that his crime is not for a CIMT. In
removal proceedings involving deportability, there are shifting burdens of proof and the respondent
must demonstrate the realistic-possibility issue under Gonzales v. Duenas-Alvarez, 549 U.S. 183
(2007), Page 112 but the government has the burden of proof to demonstrate, under the categorical
approach, that the conviction was for moral turpitude. DHS always bears the ultimate burden of
proving that a crime is a CIMT by clear and convincing evidence. See e.g., Mejia v. Holder, 756 F.3d
64 (1st Cir. 2014) [where Mass. Gen. Laws ch 266 §30A is divisible because theft conviction could be
to permanently or temporarily deprive, court reversed finding of CIMT and denial of special rule
cancellation because BIA should have analyzed conviction under modified categorical approach];
Matter of Tobar-Lobo, 24 I&N Dec. 143, 144 (BIA 2007) [government met burden of proof; failure to
report as a sex offender was a CIMT in this case]; Cf. Singh v. DHS, 517 F.3d 638, 643–46 (2d Cir.
2008) [DHS established by clear and convincing evidence that petitioner was convicted of assault
under N.Y. Penal Law §120.05(1) by upholding the admission of a Conditions of Probation document,
a Certificate of Disposition, and a post-conviction rap sheet which in combination proved the
conviction]. DHS also bears the burden of proving by clear and convincing evidence that a returning
LPR is an applicant for admission and therefore subject to the inadmissibility grounds of removal.
Matter of Rivens, 25 I&N Dec. 623, 624-27 (BIA 2011) [government bore burden in case involving INA
§101(a)(13)(C)(v) regarding whether respondent committed a CIMT under INA §212(a)(2)]. In Matter of
Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012), however, the BIA determined that the government may
prove application of 101(a)(13)(C) at the time of the removal hearing and need not prove it at the
border. See also Munoz v. Holder, 755 F.3d 366 (5th Cir. 2014) [a subsequent conviction of a crime of
an LPR who was paroled into U.S. for prosecution can be used to determine whether the LPR was an
applicant for admission and therefore inadmissible for committing a CIMT]. Where respondent is
seeking relief from removal, the BIA has determined that the respondent bears the burden of proof to
show that his crime is not a CIMT. Matter of Ortega-Lopez, 26 I&N Dec. 99, 103 (BIA 2013)
[sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 USC §2156(a)(1) is a
CIMT and respondent failed to demonstrate realistic probability otherwise]. But see Sauceda v. Lynch,
819 F.3d 526 (1st Cir. 2016) [a noncitizen can qualify for cancellation of removal without having to
prove affirmatively that her conviction was not a disqualifying conviction because the allocation of the
burden of proof post-Moncrieffe and Mellouli “does not come into play” as the issue is purely a legal
question]; Thomas v. U.S. Att’y Gen., 625 F.3d 134, 148 (3d Cir. 2010) [inconclusive record sufficient to
meet burden]; Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) [same].
(13) Foreign Conviction—A foreign conviction may be the basis for a finding of CIMT. 9 FAM 302.3-2(A).
However, there are many exceptions. A foreign conviction has no effect where it was conducted in
absentia. 22 CFR §40.21(a)(4); 9 FAM 302.3-2(B)(3)(g)(2); Matter of Piraino, 12 I&N Dec. 508, 511-12
(BIA 1967); Matter of F-, 8 I&N Dec. 469, 472 (BIA 1959). But DOS maintains the view that: “Any
participation in judicial proceedings by the accused may mean that the conviction was not one made in
absentia.” 9 FAM 303.3(B)(3)(g)(2) [participation of an attorney at trial in an in absentia proceeding or
participation in an appeal of an in absentia order if upheld means that the person “will have legally
appeared”]. Conduct must also be deemed criminal by U.S. standards. Matter of McNaughton, 16 I&N
Dec. 569 (BIA 1978); Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981) [look to 18 USC and if no
equivalent, to Title 22 of D.C. Code to determine whether foreign conviction constitutes juvenile
delinquency].Whether a crime is deemed to be a felony or misdemeanor is judged by looking to 18
USC, and if there is no equivalent by looking to Title 22 of the D.C. Code. Matter of Scarpulla, 15 I&N
Dec. 139, 141 (BIA 1974) (and cases cited therein); 9 FAM 302.3-2(B)(2)(a) [must be a crime under
federal law]. A foreign conviction, at the time U.S. law provided for a recommendation against
deportation, could not be the basis to bar a person convicted in a foreign country when there was no
provision and therefore no opportunity to apply for a recommendation against deportation. Gubbels v.
Hoy, 261 F.2d 952 (9th Cir. 1958); Matter of Gian, 11 I&N Dec. 242 (BIA 1965). But the elimination of
Judicial Recommendations Against Deportation (JRADs) under IMMACT90 may change the BIA and
the court’s view. The same reasoning may apply to pardons. But see Matter of Nolan, 19 I&N Dec. 539
(BIA 1988). Page 113
(14) De Novo Review—The determination of whether a crime is a CIMT is a matter of law and the court
reviews the BIA’s decision de novo. Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); Hamdan v. INS, 98
F.3d 183, 185 (5th Cir. 1996). See also Franklin v. INS, 72 F.3d 571, 573–606 (8th Cir. 1995) (Bennett,
J. dissenting) for an exhaustive analysis of this and other issues concerning CIMTs. But see Mehboob
v. U.S. Att’y Gen., 549 F.3d 272, 275 & n.2 (3d Cir. 2008) [rejecting the 9th Circuit’s de novo review
approach and joining the 1st, 2d, 5th, and 8th Circuits in deferring to the BIA under Chevron]. A more
nuanced approach finds that there is de novo review regarding identifying the elements of the statute
necessary to secure a conviction (because the IJ/BIA has no expertise in this matter) and deferential
review (Chevron or Skidmore) when the IJ/BIA compares those elements to the generic definition of
the crime to determine whether it is a CIMT. Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010)
[declined to uphold BIA where conviction under Canada Criminal Code §268 for aggravated assault
was not categorically a CIMT].
(15) Presenting Documents to Consular Officers—9 FAM 302.3-2(B)(3)(c) [a copy of the statute of
conviction; relevant sentencing guidelines; court records, police records, translation of documents into
English if foreign conviction].
1.c. Examples of CIMTs—Crimes involving moral turpitude can be grouped into several categories:
(1) Crimes Against the Person
(a) Involving Moral Turpitude
Assault—Assault in the second degree, Godinez-Arroyo v. Mukasey, 540 F.3d 848 (8th Cir.
2008) [recklessly causing serious physical injury to another, Missouri 2nd degree assault statute,
Mo. Rev. Stat. §565.060(3)]; Singh v. DHS, 517 F.3d 638, 643–46 (2d Cir. 2008) [assault under N.Y.
Penal Law §120.05(1)]; Nguyen v. Reno, 211 F.3d 692, 694–95 (1st Cir. 2000) [Conn. Gen. Stat.
§53a-60(a)(1) involving assault with intent to cause serious physical injury]. Assault (3rd degree)
but only if it requires intentional or reckless conduct. Matter of Solon, 24 I&N Dec. 239 (BIA 2007)
[3rd degree assault, N.Y. Penal Law §120.00(1), which requires specific intent and physical injury is
a CIMT—the presence of an aggravating factor is not necessary]; Matter of Perez-Contreras, 20
I&N Dec. 615 (BIA 1992) [withdrawingfrom Matter of Baker, 15 I&N Dec. 50 (BIA 1974) to the
extent it holds that assault is a CIMT without regard to the existence of intentional or reckless
conduct and holding that there was no CIMT under the WA state statute in the absence of
intentional or reckless conduct]; Estrada-Rodriguez v. Lynch, 825 F.3d 397, 403-06 (8th Cir. 2016)
[assault in first degree, a Class A misdemeanor under Arkansas Code Annotated §5-13-205 is a
CIMT because it criminalizes recklessly endangering a life]; Assault with intent to rob or kill or to
commit abortion or rape, Clark v. Orabona, 59 F.2d 187 (1st Cir. 1932) [assault with intent to kill];
Rizzio v. Kenney, 50 F.2d 418 (D. Conn. 1931); Matter of Beato, 10 I&N Dec. 730 (BIA 1964).
Assault with a dangerous weapon, Mtoched v. Lynch, 786 F.3d 1210, 1216-17 (9th Cir. 2015)
[assault with a dangerous weapon under 6 N. Mar. I. Code §1204(a) because it included purposely
causing bodily harm]; Yousefi v. INS, 260 F.3d 318, 326–27 (4th Cir. 2001) (in dicta,conviction
under D.C. Code Ann. §22-502 is a CIMT]. Assault with a deadly weapon, Matter of Wu, 27 I&N
Dec. 8 (BIA 2017) [post-Ceron in a detailed discussion of its prior decisions on assault (at pp10-12)
and finding that Cal Penal Code §245(a)(1) is categorically a CIMT despite its requirement of a
unique mental state greater than recklessness or criminal negligence but not requiring subjective
appreciation of the facts]; Matter of Logan, 17 I&N Dec. 367 (BIA 1980); Matter of G-R-, 2 I&N Dec.
733 (BIA 1946) [assault with a deadly weapon under Cal. Penal Code §245(a)(1) is a CIMT]; but
see Ceron v. Holder, 747 F.3d 773, 778-85 (9th Cir. 2014) (en banc) [accorded no deference to GR
or its previous decision in Gonzalez v. Barber, 207 F.3d 398, 400 (9th Cir. 1953) because they
predated categorical approach under Taylor and remanded back to BIA for new analysis]. Indecent
assault, Solano-Chicas v. Gonzales, 440 F.3d 1050, 1055–56 (8th Cir. 2006) [misdemeanor 5th-
degree assault under Minn. law, where plea indicated respondent fondled a 9- or 10-year-old girl,
was a CIMT]; Maghsoudi v. INS, 181 F.3d 8, 12–15 (1st Cir. 1999) [Mass. statute]; Matter of S-, 5
I&N Dec. 686 (BIA 1954) [Canadian statute].
Aggravated assault, Lovano v. Lynch, 846 F.3d 815 (6th Cir. 2017) [aggravated assault under
Ohio Revised Code §2903.12 is categorically a CIMT]; Baptiste v. U.S. Att’y Gen., 841 F.3d 601,
621-23 (3d Cir. 2016) Page 114 [second degree aggravated assault under N.J. Stat. Ann. §2A:90-
1]; U.S. v. Robelo, 358 F.Supp.2d 400, 415–21 (D.N.J. 2005) [aggravated assault, N.J.S.A. §2C:12-
1b.(5)(a), which includes simple assault on a law enforcement officer]; Matter of Medina, 15 I&N
Dec. 611 (BIA 1976); Matter of O-, 3 I&N Dec. 193 (BIA 1948); Matter of J-, 2 I&N Dec. 477 (BIA
1946); Aggravated assault against a police officer, Matter of Danesh, 19 I&N Dec. 669 (BIA
1988). But see Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) [conviction under Canada Criminal
Code §268 for aggravated assault is not categorically a CIMT because it does not require specific
intent to injure, does not involve a special trust relationship between the parties, and does not
require that the assault cause death or even serious injury]; Garcia-Meza v. Mukasey, 516 F.3d 535
(7th Cir. 2008) [aggravated battery of a police officer under 720 Ill. Comp. Stat. 5/12-4(b)(6) is not a
CIMT because, unlike Danesh, officer does not have to sustain bodily injury]; Partyka v. U.S. Att’y
Gen., 417 F.3d 408, 411–17 (3d Cir. 2005) [aggravated assault on law enforcement officer under
N.J. Stat. Ann. §2C:12-1b(5)(a) is not a CIMT because a person may be convicted for negligent
conduct and record did not reveal otherwise]; Zaranska v. DHS, 400 F.Supp.2d 500, 504–05
(E.D.N.Y. 2005) [assaulting police officer under N.Y. Penal Law §120.05(3) was not a CIMT; Danesh
distinguished]; Matter of O-, 4 I&N Dec. 301 (BIA 1951) [assault on police officer is not a CIMT].
Assistance, Failure to Stop and Render Aid—Conejo-Bravo v. Sessions, 875 F.3d 890 (9th Cir.
2017) [Cal. Veh. Code §20001(a) is divisible and conviction for felony hit and run was a CIMT
precluding cancellation]; Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007) [failure to
stop and render aid after being involved in an auto accident under Tex. Transp. Code Ann.
§550.021 and §550.023 is CIMT where person intentionally left scene of accident where driver
died]. But see Latu v. Mukasey, 547 F.3d 1070, 1072–76 (9th Cir. 2008) [Haw. Rev. Stat. §291C-
12.5(a), requiring a person involved in an accident causing serious bodily injury to stop, remain at
the scene, and provide information is not categorically a CIMT]; Cerezo v. Mukasey, 512 F.3d 1163
(9th Cir. 2008) [leaving the scene of an accident resulting in bodily injury or death under Cal. Veh.
Code §20001(a) is not categorically a CIMT].
Battery (Aggravated)—Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338 (11th Cir. 2005)
[aggravated battery under Fla. Stat. Ann. §784.045].
Carrying a Concealed Weapon with Intent to Use—Matter of S-, 8 I&N Dec. 344 (BIA 1959).
Child/Spousal/Elderly Abuse—Pierre v. U.S. Att’y Gen., 879 F.3d 1241 (11th Cir. 2018)
[respondent failed to show that it was a realistic probability under Duenas-Alvarez that a conviction
under Fla. Stat. §784.085 for battery of a child “by throwing, tossing, projecting, or expelling certain
fluids or materials” was not in all cases a knowing CIMT]; Gelin v. U.S. Att’y Gen., 837 F.3d 1236
(11th Cir. 2016) [abuse of elderly person or disabled adult under Fla. Stat. §825.102(1) is
categorically a CIMT]; Garcia v. U.S. Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003) [aggravated
child abuse under Fla. Stat. §§827.03(1) and 784.045(1)]; Guerrero de Nodahl v. INS, 407 F.2d
1405 (9th Cir. 1969); Child Endangerment, Hernandez-Perez v. Holder, 569 F.3d 345 (8th Cir.
2009) [Iowa Code §726.6, regarding child endangerment resulting in bodily injury, is a CIMT
because it requires a conscious disregard of a substantial risk to a child in the person’s care]. Child
pornography (possession), Matter of Olquin, 23 I&N Dec. 896 (BIA 2006) [Fla. Stat. §827.0715];
Moreno v. U.S. Att’y Gen., 887 F.3d 160(3d Cir. 2018) [18 Pa. Cons. Stat. §6312(d)]; U.S. v.
Santacruz, 563 F.3d 894 (9th Cir. 2009) [possession of child pornography under 18 USC §2252A(a)
(5)(B), even if not a specific-intent crime]. Communicating with a minor for immoral purposes,
Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) [Wash. Rev. Code §9.68A.090]. Delinquency of
a minor, Sheikh v. Gonzales, 427 F.3d 1077, 1082 (8th Cir. 2005) [misdemeanor of contributing to
the delinquency of a minor under ND law]. Spousal abuse, Grageda v. INS, 12 F.3d 919 (9th Cir.
1993). Aggravated stalking (where threat is involved), Matter of Ajami, 22 I&N Dec. 949 (BIA
1999). Willful infliction of corporal injury on spouse, parent or perpetrator’s child, or
cohabitant under Cal. Penal Code §273.5,Matter of Tran, 21 I&N Dec. 291 (BIA 1996). Failure to
support a child, Matter of R-, 4 I&N Dec. 192, 194 (BIA 1950) [willfully leaving a child destitute
under WI law]; Matter of S-, 2 I&N Dec. 553 (BIA 1945) [same Page 115 destitute crime under NY
law]. But see Matter of E-, 2 I&N Dec. 134, 135 (BIA 1944) [Ohio nonsupport statute was not CIMT
where violation could occur even if defendant believed he was acting in best interest of the child].
Criminal Reckless Conduct—Matter of Leal, 26 I&N Dec. 20 (BIA 2012), aff’d, Leal v. Holder, 771
F.3d 1140 (9th Cir. 2014) [recklessly endangering another person with a substantial risk of imminent
death under Ariz. Rev. Stat. §13-1201(A)]; Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) [reckless
conduct under N.H. Rev. Stat. Ann. §631:3 is CIMT]; Keungne v. U.S. Att’y Gen., 561 F.3d 1281
(11th Cir. 2009) [Ga. Code Ann. §16-5-60(b) requires a sufficiently culpable mental state for a
CIMT]; Matter of Hernandez, 26 I&N Dec. 464 (BIA 2014) [“deadly conduct” under Tex. Penal Code
§22.05(a) by recklessly placing another in imminent danger of serious bodily injury is categorically a
CIMT].
Disorderly Conduct (in certain limited circumstances)—Rohit v. Holder, 670 F.3d 1085 (9th Cir.
2012) [Cal. Penal Code §647(b) prohibiting disorderly conduct involving solicitation of prostitution];
Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961) [loitering for lewd purposes]; Matter of Alfonso-
Bermudez, 12 I&N Dec. 225 (BIA 1967) [soliciting].
Driving Under the Influence (aggravated)—Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.
2009) (en banc) [Ariz. R.S. §28-697(A)(1) [now §28-1383(A)(1)], aggravated drunk driving which
includes driving drunk with knowledge of an invalid license is a CIMT; distinguishing Hernandez-
Martinez because record demonstrated petitioner was driving]; Matter of Lopez-Meza, 22 I&N Dec.
1188 (BIA 1999) (en banc) [aggravated DUI under Ariz. Rev. Stat. §28-697(A)(1) (now §1383(a)(1))
occurs where person commits DUI while knowingly driving on a suspended, cancelled, or revoked
license, or while under a restricted license owing to prior DUI]; But see Matter of Torres-Varela, 23
I&N Dec. 78, 82–86 (BIA 2001) [distinguishing Lopez-Meza because aggravated DUI under Ariz.
Rev. Stat. §28-697(A)(2) (now §1383(a)(2) did not require a culpable mental state as did Ariz. Rev.
Stat. §28-697(A)(1)]; Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003) [finding Ariz.
Rev. Stat. §28-697(A)(1) in Lopez-Meza is not categorically a CIMT because statute is divisible and
a person can be convicted for sitting in one’s own driveway with the key in the ignition and a bottle
of beer in his hand which is not an “inherently base, vile or depraved” act].
Firearms Discharge at occupied building or vehicle—Recio-Prado v. Gonzales, 456 F.3d 819 (8th
Cir. 2006) [aiding and abetting the unlawful discharge of a firearm in a building, Kan. Stat. Ann.
§21-4219(b)].
Identity Theft—Ibarra-Hernandez v. Holder, 770 F.3d 1280 (9th Cir. 2014) [Ariz. Rev. Stat. §13-
2008(A) regarding taking the identity of another while not categorically a CIMT was one under
modified categorical approach where he admitted to using a real person’s identity]; Veloz-Luvevano
v. Lynch, 799 F.3d 1308, 1312-14 (10th Cir. 2015) [criminal impersonation under Colo. Rev. Stat.
§18-5-113(1)(d) is categorically a CIMT].
Kidnapping—Matter of Nakoi, 14 I&N Dec. 208 (BIA 1972); Matter of C-M-, 9 I&N Dec. 487 (BIA
1961), but see Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013) [simple kidnapping under
Cal. Penal Code §207(a) is not categorically a CIMT]; Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996)
[attempted simple kidnapping under Louisiana law not CIMT].
Mayhem—Matter of Santoro, 11 I&N Dec. 607 (BIA 1966).
Murder and Voluntary Manslaughter—Carter v. INS, 90 F.3d 14, 18 (1st Cir. 1996) [manslaughter
stemming from assault and battery]; De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1962); Allessio v. Day,
42 F.2d 217 (2d Cir. 1930); Matter of Abi-Rached, 10 I&N Dec. 551 (BIA 1964). Accessory After
the Fact to Murder, Cabral v. INS, 15 F.3d 193 (1st Cir. 1994). Attempted murder, Matter of
Awaijane, 14 I&N Dec. 117 (BIA 1972). Manslaughter (recklessness) Matter of Jean, 23 I&N Dec.
373, 375–76 (AG 2002) [conviction for 2nd degree manslaughter under N.Y. Penal Law §124.15(1),
which allows a conviction for recklessness is “indisputably” a CIMT].
Resisting a Police Officer with Violence—Cano v. U.S. Att’y Gen., 709 F.3d 1052 (11th Cir. 2013)
[resisting an officer with violence under Fla. Stat. §843.01 is a CIMT because it requires intentional
violence]. Page 116
Restraint—Sharpe v. Riley, 271 F.Supp.2d 631, 635–36 (E.D. Pa. 2003) [unlawful restraint under
18 Pa. Cons. Stat. Ann. §2902 is a CIMT].
Robbery—Matter of Martin, 18 I&N Dec. 226 (BIA 1982); Matter of Kim, 17 I&N Dec. 144, 145 (BIA
1979); Matter of F-, 2 I&N Dec. 517 (BIA 1946); Mendoza v. Holder, 623 F.3d 1299 (9th Cir. 2010)
[Cal. Penal Code §211 is a CIMT]; Brett v. INS, 386 F.2d 439 (2d Cir. 1967). But see U.S. ex rel.
Fontan v. Uhl, 16 F.Supp. 428 (S.D.N.Y. 1936).
Threats; Terrorist Threats—Javier v. U.S. Att’y Gen., 826 F.3d 127 (3d Cir. 2016) [terrorist threat
with intent to terrorize another under Pa. Cons. Stat. 18 §2706(a)(1) is categorically a CIMT];
Avendano v. Holder, 770 F.3d 731, 734-35 (8th Cir. 2014) [reaffirming Chanmouny regarding
terrorist threats post-Descamps on theory that different mental states make the Minn. statute
divisible and respondent was convicted under recklessness prong]; Latter-Singh v. Holder, 668 F.3d
1156 (9th Cir. 2012) [threats with intent to terrorize under CA law is CIMT]; Chanmouny v. Ashcroft,
376 F.3d 810 (8th Cir. 2004) [terrorist threats under Minn. Stat. §609.713 was CIMT where
respondent, based upon plea transcript, acted with a purpose to terrorize and not just recklessly].
(b) Not Involving Moral Turpitude
Assault—Assault, misdemeanor (Class A), Gomez-Perez v. Lynch, 829 F.3d 323 [assault under
Texas Penal Code §22.01 is not categorically a CIMT and the modified categorical approach post-
Mathis is inapplicable]; Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163–69 (9th Cir. 2006)
[misdemeanor assault, Ariz. Rev. Stat. §13-1203(A)(1)–(3), and domestic violence, Ariz. Rev. Stat.
§13-3601(A), which refers back to the reckless commission under the assault statute, are not
CIMTs because they lack willful conduct and do not necessarily involve more than insubstantial
injury]. Assault Occasioning Actual Bodily Harm (ABH), Minutes, AILA-DOS Liaison Meeting
(Oct. 19, 2017), Q.#8, AILA Doc. No. 17102030 [DOS stating that ABH under Sec. 47 of UK
Offenses Against the Person Act, 1861 is not a CIMT]. Simple Assault, Matter of Ahortalejo-
Guzman, 25 I&N Dec. 465, 466 (BIA 2011) [“Simple assault or battery is generally not considered to
involve moral turpitude for purposes of the immigration laws” citing Matter of Short and Matter of
Fualaau]; Alonzo v. Lynch, 821 F.3d 951, 957-63 (8th Cir. 2016) [Iowa Code §708.1(2) regarding
simple assault is a divisible statute and case remanded to determine under modified categorical
approach whether petitioner committed a CIMT]; Jean-Louis v. U.S. Att’y Gen., 582 F.3d 462 (3d
Cir. 2009) [under modified categorical approach the least culpable conduct under 18 Pa. Cons.
Stat. §2701(b)(2) for simple assault against a child under 12 is reckless conduct that does not
amount to a CIMT]; Matter of ___ (Neb. Serv. Center, July 18, 2014), AILA Doc. No. 14082061
[simple assault under Maryland Code Art 12, §§12A(a) and (b)].
Aggravated Assault—Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) [conviction under Canada
Criminal Code §268 for aggravated assault is not categorically a CIMT because it does not require
specific intent to injure, does not involve a special trust relationship between the parties, and does
not require that the assault cause death or even serious injury]; But see in this section ¶ (a) (p.113),
supra, for competing cases.
Assault and Battery (Simple)—Griffo v. McCandless, 28 F.2d 287 (E.D. Pa. 1928),Matter of Sejas,
24 I&N Dec. 236 (BIA 2007) [assault and battery against a family or household member, Va. Code
§16.1-228 does not require the actual infliction of physical injury but merely offensive touching];
Matter of S-, 9 I&N Dec. 688 (BIA 1962), Matter of B-, 5 I&N Dec. 538 (BIA 1953), Matter of E-, 1
I&N Dec. 505 (BIA 1943) [simple assault].
Assault with Intent to Commit a Non-CIMT Felony—Matter of Short, 20 I&N Dec. 136 (BIA
1989). Assault based on negligence where reckless or intentional conduct is excluded from
definition, Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) [WA state conviction for assault
in 3rd degree]. Assault with Intent, Hanna v. Holder, 740 F.3d 379, 387-90 (6th Cir. 2014) [assault
with intent to injury or to cause apprehension of harm under Mich. Comp. Laws 750.82(1) is
divisible and is not categorically a CIMT]; Assault where recklessness could be an element but
without serious bodily harm, Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996) [Hawaii conviction
for 3rd degree assault]. Attempted assault where recklessness is an element, Gill v. INS, 420 F.3d
82, 89–91 (2d Cir. 2005) [attempted reckless assault under N.Y. Penal Law §120.05(4) Page 117 is
not a CIMT because attempted recklessness is legally incoherent]. But see Mazzillo v. Day, 15 F.2d
391 (S.D.N.Y. 1926) [simple assault was a CIMT].
Assault or Aggravated Assault on a Law Enforcement Officer—Garcia-Meza v. Mukasey, 516

F.3d 535 (7th Cir. 2008) [aggravated battery of a police officer under 720 Ill. Comp. Stat. 5/12-4(b)
(6) is not a CIMT because unlike Danesh officer does not have to sustain bodily injury]; Partyka v.
U.S. Att’y Gen., 417 F.3d 408, 411–17 (3d Cir. 2005) [N.J. Stat. Ann. §2C:12-1b(5)(a) is not a CIMT
because a person may be convicted for negligent conduct and record did not reveal otherwise];
Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933) [assault related to resisting arrest]; Ciambelli v.
Johnson, 12 F.2d 465 (D. Mass. 1926) [assault on police]; Zaranska v. DHS, 400 F.Supp.2d 500,
504–05 (E.D.N.Y. 2005) [assaulting a police officer pursuant to N.Y. Penal Law §120.05(3) was not
a CIMT; Danesh distinguished]; Matter of O-, 4 I&N Dec. 301 (BIA 1951) [same].
Battery—Matter of Ahortalejo-Guzman, 25 I&N Dec. 465, 466 (BIA 2011) [“Simple assault or
battery is generally not considered to involve moral turpitude for purposes of the immigration laws”
citing Matter of Short and Matter of Fualaau]; Matter of Sanudo, 23 I&N Dec. 968, 970–73 (BIA
2006) [domestic battery, Cal. Penal Code §§242 and 243(e)(1) does not categorically qualify as
CIMT; not all crimes involving injurious touching of another reflect moral depravity, “even though
they may carry the label of assault, aggravated assault, or battery under the law”]; Matter of Garcia-
Hernandez, 23 I&N Dec. 590, 594 (BIA 2003); Galeana-Mendoza v. Gonzales, 465 F.3d 1054,
1057–58 (9th Cir. 2006) [under the modified categorical approach, DHS failed to establish that a
conviction under Cal. Penal Code §243(e) for domestic battery is a CIMT; domestic battery is not
per se a CIMT as it does not necessarily involve violence or bodily harm];
Child Endangerment/Abandonment—Hernandez-Cruz v. U.S. Att’y Gen., 764 F.3d 281, 285-87

(3d Cir. 2014) [child endangerment under 18 Pa. Cons. Stat. Ann. §4304(a)(1) is not a CIMT
because the least culpable conduct to sustain a conviction does not implicate moral turpitude];
Rodriguez-Castro v. Gonzales, 427 F.3d 316, 321–24 (5th Cir. 2005) [Tex. Penal Code §22.041(b),
attempted misdemeanor child abandonment with intent to return is not a CIMT]; Matter of E-, 2 I&N
Dec. 134, 135 (BIA 1944) [Ohio nonsupport statute was not a CIMT, where violation could occur
even if defendant believed he was acting in best interest of the child].
Criminal Negligent Homicide—Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017) [criminally
negligent homicide under N.Y. Penal Law §125.10 is not categorically a CIMT].
Delinquency of a Minor (Contributing to)—Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012)
[under the modified categorical approach, the misdemeanor violation of Va. Code Ann. §18.2-371 is
not a CIMT].
Domestic Violence—Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) [Cal. Penal Code
§273.5 includes corporal injury against a former cohabitant and is categorically no different from
assault, unlike spouse abuse, and therefore is not a CIMT]; Fernandez-Ruiz v. Gonzales, 468 F.3d
1159, 1163–69 (9th Cir. 2006) [domestic violence, Ariz. Rev. Stat. §13-3601(A), which refers back
to the reckless commission of simple assault statute is not a CIMT because it does not require
willful conduct or more than insubstantial injury for a conviction].
DUI (Simple)—Matter of Lopez-Meza, 22 I&N Dec. 1188, 1194 (BIA 1999) (en banc); Murillo-
Salmeron v. INS, 327 F.3d 898 (9th Cir. 2003) [simple DUI is not a grounds of inadmissibility]. DUI
that was aggravated but without culpable mental state is not a CIMT simply because there are
multiple (simple) DUIs, Matter of Torres-Varela, 23 I&N Dec. 78, 82–86 (BIA 2001) [distinguishing
Lopez-Meza because aggravated DUI under Ariz. Rev. Stat. §28-697(A)(2) did not require as a
culpable mental state as did §28-697(A)(1)]. DUI where statute is divisible and does not include
crimes that are inherently base, vile, or depraved. Hernandez-Martinez v. Ashcroft, 329 F.3d 1117
(9th Cir. 2003) [Ariz. Rev. Stat. §28-697(A)(1) (now §28-1383(A)(1)) found to be CIMT in Lopez-
Meza is not categorically a CIMT]. But see Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.
2009) (en banc) [conviction under Ariz. Rev. Stat. §28-697(A)(1) [now §28-1383(A)(1)] for
aggravated Page 118 drunk driving which includes driving drunk with knowledge that he is without a
valid license is a CIMT; distinguishing Hernandez-Martinez because record demonstrated petitioner
was driving].
Other—Identity Theft, Linares-Gonzalez v. Lynch, 823 F.3d 508 (9th Cir. 2016) [Cal. Penal Code
§§530.5(a) and (d)(2) are not categorically CIMTs because they are not fraud-based crimes and do
not necessarily involve vile, base, or depraved conduct]; False Imprisonment (Felony), Turijan v.
Holder, 744 F.3d 617 (9th Cir. 2014) [felony false imprisonment under Cal Penal Code §236 and
§237 are not categorically CIMTs]; False Imprisonment (Misdemeanor), Saavedra-Figueroa v.
Holder, 625 F.3d 621 (9th Cir. 2010) [misdemeanor false imprisonment under Cal. Penal Code §236
is not categorically a CIMT]. Fleeing from a Police Officer, Ramirez-Contreras v. Sessions, 858
F.3d 1298 (9th Cir. 2017) [Cal. Veh. Code §2800.2 is not categorically a CIMT because it did not
require a defendant to flee in an especially dangerous manner]; Gang Association, Hernandez-
Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015) [conviction under Cal. Penal Code §186.22(b)(1)
for person who is convicted of a felony related to a criminal street gang is not a CIMT]; but see
Matter of Hernandez, 26 I&N Dec. 397 (BIA 2014) [malicious destruction of property coupled with
Cal. Penal Code §186.22(d) gang enhancement is a CIMT]; Harassing Telephone Calls, Reyes-
Morales v. Gonzales, 435 F.3d 937, 944–45 (8th Cir. 2006) [Minn. Stat. §609.749 is not a CIMT
because it encompasses threatening behavior without intent]. Kidnapping (simple), Castrijon-
Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013) [Cal. Penal Code §207(a) is not categorically a
CIMT]; Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996). Laser Activity (Unlawful), Coquico v. Lynch,
789 F.3d 1049 (9th Cir. 2015) [unlawful laser activity under Cal. Penal Code §417.26 is
categorically not a CIMT]; Leaving the Scene of an Accident, Latu v. Mukasey, 547 F.3d 1070,
1072–76 (9th Cir. 2008) [Haw. Rev. Stat. §291C-12.5(a), requiring a person involved in an accident
causing serious bodily injury to stop, remain at the scene, and provide information is not
categorically a CIMT]; Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008) [leaving the scene of an
accident resulting in bodily injury or death under Cal. Veh. Code §20001(a) is not categorically a
CIMT]; but see Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007) [failure to stop and
render aid after being involved in an automobile accident under Tex. Transp. Code Ann. §550.021
and §550.023 is CIMT where person intentionally left scene of accident where driver died];
Malicious Mischief, Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995). Manslaughter
(involuntary), Matter of Lopez, 13 I&N Dec. 725 (BIA 1971), Mongiovi v. Karnuth, 30 F.2d 825
(S.D.N.Y. 1929), Tutrone v. Shaughnessy, 160 F.Supp. 433 (S.D.N.Y. 1958). But see Matter of
Franklin, 20 I&N Dec. 867 (BIA 1994), aff’d, Franklin v. INS, 72 F.3d 571 (8th Cir. 1995) [where
statute requires conscious disregard of a substantial risk it is a CIMT]; Manslaughter, Involuntary,
Sotnikau v. Lynch, 846 F.3d 731 (4th Cir. 2017) [Involuntary manslaughter under Va. Code Ann.
§18.2-36 is not categorically a CIMT because it does not require intent or conscious disregard of
substantial and unjustified risk]; Petit Theft, Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1086-
88 (9th Cir. 2017) [petit theft under Idaho Code §18-2403 is categorically not a CIMT because it
includes temporary taking of property, but it may be a CIMT under modified categorical approach];
Reckless Endangerment, Mahn v. U.S. Att’y Gen., 767 F.3d 170, 173-75 (3d Cir. 2014) [18 Pa.
Cons. Stat. Ann. §2705 encompasses reckless conduct that may put a person in danger and
therefore is not a CIMT]; (Attempted) Knapik v. Ashcroft, 384 F.3d 84, 90–94 (3d Cir. 2004)
[attempted reckless endangerment is a nonsensical crime and therefore not a CIMT because it
requires intent to meet the “attempt” part but recklessness to do the crime]. Weapons Possession,
Matter of Granados, 16 I&N Dec. 726 (BIA 1979) [possession of sawed-off shotgun not a CIMT].
(2) Sexual Offenses
Adultery, Tourny v. Reimer, 8 F.Supp. 91 (S.D.N.Y. 1934); Matter of A-, 3 I&N Dec. 168 (BIA 1948).
Bigamy, Matter of V-L-, 3 I&N Dec. 10 (BIA 1947), Matter of E-, 2 I&N Dec. 328 (BIA 1945); but
see Matter of S-, 1 I&N Dec. 314 (BIA 1942) [bigamy not CIMT]. Incest, Gonzalez-Alvarado v. INS,
39 F.3d 245 (9th Cir. 1994), Matter of Y-, 3 I&N Dec. 544 (CO 1949), Page 119 but see Matter of B-,
2 I&N Dec. 617 (BIA 1946). Indecent Assault, Mehboob v. U.S. Att’y Gen., 549 F.3d 272 (3d Cir.
2008) [18 Pa. Cons. Stat. §3126(a)(8) a strict liability sex offense is a CIMT even in the absence of
mens rea where there must be purposeful conduct involving touching a minor]. Indecent
Exposure, Cortes Medina, 26 I&N Dec. 79 (BIA 2013) [relying on Brand X to find categorical
violation under Cal. Penal Code §314(1) because lewd intent is required notwithstanding express
contrary finding in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010)]; Lewdness, Fitzgerald v.
Landon, 238 F.2d 864 (1st Cir. 1956); Matter of M-, 7 I&N Dec. 144 (BIA 1956); but see Matter of
Mueller, 11 I&N Dec. 268 (BIA 1965) [lewd and lascivious conduct not CIMT]; Matter of H-, 7 I&N
Dec. 616 (BIA 1957). Oral Sex, Matter of Leyva, 16 I&N Dec. 118 (BIA 1977). Prostitution, Lane v.
Tillinghast, 38 F.2d 231 (1st Cir. 1930), Matter of Lambert, 11 I&N Dec. 340 (BIA 1965).
Prostitution, Soliciting, Reyes v. Lynch, 835 F.3d 556 (6th Cir. 2016) [violation of Codified
Ordinances of Hamilton, Ohio §533.09 for solicitation of prostitution is a CIMT based upon Chevron
deference to Matter of W-]; Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1057-59 (8th Cir. 2016)
[Minn. Stat. §609.324 sub.2 solicitation in a public place]; Rohit v. Holder, 670 F.3d 1085 (9th Cir.
2012) [Cal. Penal Code §647(b) prohibiting disorderly conduct involving solicitation of prostitution];
Matter of W-, 4 I&N Dec. 401, 402 (BIA 1961). Rape, Ng Sui Wing v. U.S., 46 F.2d 755 (7th Cir.
1931), Matter of Beato, 10 I&N Dec. 730 (BIA 1964) [attempted rape]. Sex Offender (Failure to
Register). Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007) [Cal. Penal Code §290(g)(1)].
Statutory Rape, Matter of Jimenez-Cedillo, 27 I&N Dec. 1, 5 (BIA 2017) [finding conviction under
Maryland Crim. Law. §3-324 is a CIMT and that no culpable mental state regarding the victim’s age
is required where the victim is particularly young (14 or under) or the age differential between the
victim and perpetrator is significant], rev’d, Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir.
2018) [BIA failed to explain its change from long standing precedent that sexual solicitation of a
minor was only a CIMT if the perpetrator knew the victim’s age]; Castle v. INS, 541 F.2d 1064, 1066
(4th Cir. 1976); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971); Matter of Guevara Alfaro, 25 I&N
Dec. 417 (BIA 2011) [declining to follow Quintero-Salazar v. Keisler regarding Cal. Penal Code
261.5(d) involving statutory rape and holding the 3-step approach in the former decision of Silva-
Trevino under Brand Xis applicable in the 9th Circuit]; Matter of Dingena, 11 I&N Dec. 723 (BIA
1966). Sexual Battery (misdemeanor), Gonzalez-Cervantes v. Holder, 709 F.3d 1265 (9th Cir.
2013) [following Duenas-Alvarez there was no showing that the state courts have interpreted the
misdemeanor sexual battery statute Cal. Penal Code §243.4(e) to conduct that is not morally
turpitudinous];
Bastardy,Matter of D-, 1 I&N Dec. 186 (BIA 1941); Fornication or Mann Act Violations where
compulsion was not inherent in crime, Matter of R-, 6 I&N Dec. 444 (BIA 1954). Indecency, Nunez
v. Holder, 594 F.3d 1124 (9th Cir. 2010) [indecent exposure under Cal. Penal Code §314(1)]; but
see Cortes Medina, 26 I&N Dec. 79 (BIA 2013) [relying on Brand X to find categorical violation
under 314(1) notwithstanding Nunez]; Toutounjian v. INS, 959 F.Supp. 598 (W.D.N.Y. 1997); Matter
of Mueller, 11 I&N Dec. 268 (BIA 1965); Matter of H-, 7 I&N Dec. 301 (BIA 1956), Matter of Z-, 2
I&N Dec. 316 (BIA 1945); but see Matter of Z-, 7 I&N Dec. 253 (BIA 1956) [indecent assault].
Indecency with a Child, Matter of Silva-Trevino, 26 I&N Dec. 826, 833-36 (BIA 2016) [Tex. Penal
Code §21.11(c) for indecency with a child is not categorically a CIMT because defendant need not
know the victim was a minor and because sexual intercourse is not an element of the crime];
Lewdness, Cisneros-Guerrerro v. Holder, 774 F.3d 1056 (5th Cir. 2014) [public lewdness under
Texas Penal Code §21.07 is not categorically a CIMT]; Mailing Obscene Letter, Matter of D-, 1
I&N Dec. 190 (BIA 1942). Maintaining a Nuisance, Matter of A-, 3 I&N Dec. 168 (BIA 1948).
Minors, Contributing to the Delinquency of, Matter of P-, 2 I&N Dec. 117 (BIA 1944); but see
Castle v. INS, 541 F.2d 1064 (4th Cir. 1976) [indecent liberties with minor is a CIMT], Matter of
Garcia, 11 I&N Dec. 521 (BIA 1966) [same]. Sex Offender (Failure to Register), Mohamed v.
Holder, 769 F.3d 885, 888-90 (4th Cir. 2014) [disagreed with Tobar-Lobo and found Va. Code Ann.
§18.2-472.1 no malum in se]; Totimeh v. U.S. Att’y Gen., 666 F.3d 109, 115-16 (3d Cir. 2012) Page
120 [predatory offender registration statute under Minn. Stat. §243.166 because a person may be
convicted simply by forgetfulness]; Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) [misdemeanor
failure-to-register as a sex offender in violation of Colo. Rev. Stat. §18-3-412.5(1)(a), (3) is a
regulatory crime]; Panu v. Holder, 639 F.3d 1225 (9th Cir. 2011) [suggesting that Cal. Penal Code
§290(g)(1) misdemeanor failure to register is a strict liability crime and therefore not a CIMT and
remanding it back to BIA to decide]; but see Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007)
[failure to register is CIMT]. Statutory Rape, Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir.
2007) [Cal. Penal Code §261.5(d), intercourse between a person 21 or older with a minor under 16
is not categorically a CIMT]; but see Matter of Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011)
[declining to follow Quintero-Salazar and holding that under the 3rd step of the former decision in
Silva-Trevino and pursuant to Brand X, Cal. Penal Code §261.5(d) may be a CIMT]; Vagrancy
(when charged in lieu of prostitution), Matter of V-S-, 2 I&N Dec. 703 (BIA 1946).
(3) Crimes Against Property
Animal Fighting, Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013) [sponsoring or exhibiting an
animal in an animal fighting venture in violation of 7 USC §2156(a)(1)]; but see Ortega-Lopez v.
Lynch, 834 F.3d 1015 (9th Cir. 2016) [vacating BIA decision which was based solely on the fact that
all 50 states have outlawed cockfighting without any analysis whether a nonfraudulent crime
involves intent to harm a protected class of victims]; Arson, Vuksanovic v. U.S. Att’y Gen., 439 F.3d
1308, 1311 (11th Cir. 2006) [2nd degree arson, Fla. Stat. §806.01(2)]; Matter of S-, 3 I&N Dec. 617
(BIA 1949) But see Rosa Pena v. Sessions, 882 F.3d 284, 287-89 (1st Cir. 2018) [court discussed
that acting willfully and maliciously under the Mass. Gen. Laws ch. 266 §2 (arson statute) does not
necessarily require a person to act with evil intent or a corrupt mindset thus remanding to BIA to
determine CIMT]; Blackmail, Lehmann v. Carson, 353 U.S. 685 (1957); Burglary, Uribe v.
Sessions, 855 F.3d 622, 626-27 (4th Cir. 2017) [Maryland’s third degree burglary statute, Md. Crim.
Law Sec. 6-204 is a CIMT even though it includes constructive breaking and may involve a
boat/motor vehicle because they are considered a dwelling under Md. law if meant to be
“occupied”]; Dominguez-Pulido v. Lynch, 821 F.3d 837 (7th Cir. 2016) [felony burglary under 720 Ill.
Comp. Stat. 5/19-1]; Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) [accomplice to
residential burglary, Wash. Rev. Code §§9A.52.025(1) and 9A.08.020(3) was a CIMT under
modified categorical approach, because respondent pleaded guilty to entering a residence with
intent to steal property]; Matter of J-G-D-F-, 27 I&N Dec 82 (BIA 2017) [burglary of a dwelling in
violation of Or. Rev. Stat. §164.225 is a CIMT under the modified categorical approach despite the
fact that the dwelling need not be occupied but only “regularly or intermittently” so]; Matter of
Louissaint, 24 I&N Dec. 754 (BIA 2009) [2nd degree burglary of an occupied dwelling, Fla. Stat.
§810.02(3)(a) is a CIMT; Matter of M- distinguished]; Matter of Frentescu, 18 I&N Dec. 244 (BIA
1982) [burglary with intent to commit theft], Matter of R-, 1 I&N Dec. 540 (BIA 1940), but see Matter
of M-, 2 I&N Dec. 721 (BIA/AG 1946) [3rd degree burglary, breaking and entering without intent to
commit larceny is not a CIMT]. Copyright Infringement, Matter of Zaragoza-Vaguero, 26 I&N Dec.
814 (BIA 2016) [criminal copyright infringement under 17 USC §506(a)(1)(A) and 18 USC §2319(b)
(1) is a CIMT even though statute does not require intent to defraud]; Credit Card Fraud/Use,
Matter of Chouinard, 11 I&N Dec. 839 (BIA 1966) [illegal use of credit cards]; Mancilla-Delafuente v.
Lynch, 804 F.3d 1262 (9th Cir. 2015) [Nev. Rev. Stat. §205.690(2) possession of a credit card with
intent to defraud]; Tijani v. Holder, 628 F.3d 1071 (9th Cir. 2010) [credit card fraud in violation of Cal.
Penal Code §532a(1); In re Kinney not controlling]; Counterfeit Goods, Matter of Kochlani, 24 I&N
Dec. 128, 129–31 (BIA 2007) [trafficking in counterfeit goods under 18 USC §2320 is a CIMT]; Tall
v. Mukasey, 517 F.3d 1115 (9th Cir. 2008) [counterfeit of a registered mark, Cal. Penal Code
§350(a)(2)]. But see Lifeng Wang v. Rodriguez, 830 F.3d 958 (9th Cir. 2016) [conviction under 18
USC §2320 permits a conviction for mistake or confusion and therefore does not necessarily
involve fraud or deceit]; Destruction of Property, Da Silva Neto v. Holder, 680 F.3d 25 (1st Cir.
2012) [Malicious destruction of property under Mass. Gen. Laws, ch 266 §127]; Page 121
Embezzlement, Matter of Batten, 11 I&N Dec. 271 (BIA 1965). Extortion, Matter of F-, 3 I&N Dec.
361 (BIA 1949). Forgery, Matter of Islam, 25 I&N Dec. 637, 638-39 (BIA 2011) [forgery through
possession of stolen credit cards]; Miranda-Romero v. Lynch, 797 F.3d 524 (8th Cir. 2015) [Cal.
Penal Code §472 criminalizing forgery and related conduct is a CIMT]; Espino-Castillo v. Holder,
770 F.3d 861 (9th Cir. 2014) [forgery with intent to defraud in violation of Ariz. Rev. Stat. §13-2002];
Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931), Abbenante v. Butterfield, 112 F.Supp. 324 (E.D.
Mich. 1953). Food Stamp Fraud, Abdelqadar v. Gonzales, 413 F.3d 668, 671–72 (7th Cir. 2005)
[conviction under 720 Ill. Comp. Stat. 5/17B-5, where defendant admitted he purchased food
stamps for cash at lower than face value and arranged to deceive the state by collecting the full
value]; Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992). Identity Fraud, Rodriguez-Heredia v.
Holder, 639 F.3d 1264, 1267-69 (10th Cir. 2011) [Utah Code Ann. §76-6-1102]. Larceny, Matter of
Kim, 17 I&N Dec. 144 (BIA 1979), Matter of Grazley, 14 I&N Dec. 330 (BIA 1973). Larceny (Petit),
Matter of Obeya, 26 I&N Dec. 856 (BIA 2016) [finding Petit Larceny under N.Y. Penal Law §155.25
to be a CIMT because the standard is no longer intent to permanent deprive but where intent to
deprive requires intent to permanently deprive or “under circumstances where the owner’s property
rights are substantially eroded” quoting Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 854, rev’d
Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) [reversed for impermissible applying Diaz-Lizarraga
retroactively]; Caesar v. Ashcroft, 355 F.Supp.2d 693, 703 (S.D.N.Y. 2005). Possession of Stolen
Property with the knowledge it is stolen, Matter of Serna, 20 I&N Dec. 579 (BIA 1992) at 11 n.10;
Matter of Islam, 25 I&N Dec. 637, 638-39 (BIA 2011) [possession of stolen credit cards]; De Leon v.
Lynch, 808 F.3d 1224, 1227-32 (10th Cir. 2015) [possession of a stolen vehicle under Okla. Stat. tit.
47 §4-103 is categorically a CIMT because it requires knowledge]; Receipt of Stolen Property,
Smriko v. Ashcroft, 387 F.3d 279, 282–83 (3d Cir. 2004) [following De Leon-Reynoso and finding 18
Pa. Cons. Stat. §3925(a) a CIMT]; Aquino-Encarnacion v. INS, 296 F.3d 56 (1st Cir. 2002) [worth
over $250, Mass. Gen. Laws ch. 266 §§60 and 28]; De Leon-Reynoso v. Ashcroft, 293 F.3d 633,
635–37 (3d Cir. 2002) [18 Pa. Cons. Stat. §3925(a), possessing stolen goods that are believed to
be stolen]; Matter of Salvail, 17 I&N Dec. 19 (BIA 1979), Matter of Z-, 7 I&N Dec. 253 (BIA 1956);
Matter of R-, 6 I&N Dec. 772 (BIA 1955), but see Castillo-Cruz v. Holder, 581 F.3d 1154, 1159–61
(9th Cir. 2009) [receipt of stolen property under Cal. Penal Code §496 is not categorically a CIMT
because it may not involve intent to deprive permanently the property]; Matter of K-, 2 I&N Dec. 90
(BIA 1944) [where statute convicts if one knows “or must assume” that the property is stolen is not
CIMT]. Records Tampering. Villatoro v. Holder, 760 F.3d 872 (8th Cir. 2014) [tampering with
records under Iowa Code §715A.5 is a CIMT because it involves fraud or deceit]; Shoplifting. Da
Rosa Silva v. INS, 263 F.Supp.2d 1005, 1010–12 (E.D. Pa. 2003) [N.J. Stat. Annot. §2C:20-11(b)
(1)]; Matter of Jurado-Delgado, 24 I&N Dec. 29 (BIA 2006) [Pennsylvania retail theft is a CIMT];
Stealing Cellular Air Time, U.S. v. Qadeer, 953 F.Supp. 1570, 1580–81 (S.D. Ga. 1997). Theft,
Dominguez-Herrera v. Sessions, 850 F.3d 411, 418-19 (8th Cir. 2017) [where municipal judgment
under Kansas Uniform Public Offense Code §6.1 required finding of permanent deprivation of
property theft was a CIMT]; Hashish v. Gonzales, 442 F.3d 572, 576–77 (7th Cir. 2006) [theft of a
recorded sound under former Ill. Crim. Code §38-16-1, and misdemeanor theft under 720 Ill. Comp.
Stat. 5/16-1(a) (involving knowingly obtaining or exerting unauthorized control over property of the
owner) are CIMTs under categorical approach]; Okoro v. INS, 125 F.3d 920, 926 (5th Cir. 1997)
(Del. law), U.S. v. Esparza-Ponce, 193 F.3d 1133, 1135–37 (9th Cir. 1999) [petty theft under Cal.
law]; Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994) [grand theft under Cal. law]; Deluca v.
Ashcroft, 203 F.Supp.2d 1276, 1279 (M.D. Ala. 2002) [2nd degree theft of property under Ala. law is
a CIMT]; Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) [in a case involving shoplifting
under Ariz. Rev. Stat. §13-1805A, BIA has changed its view so that not only intent to permanently
deprive a person of his property constitutes a CIMT but now it is “an intent to deprive the owner of
his property either permanently or under circumstances where the owner’s property rights are
substantially eroded.”] but see Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) [Diaz-Lizarraga
announced new rule that may not be applied retroactively]; Garcia-Martinez v. Sessions, 886 F.3d
1291, 1295-96 (9th Cir. 2018) [same for Or. Rev. Stat. §164.015]; Matter of Kochlani, 24 I&N Dec.
128, 129 (BIA 2007) [grand theft Page 122 under Cal. Penal Code §487.1]; Matter of Jurado, 24
I&N Dec. 29, 33–34 (BIA 2006) [retail theft under 18 Pa. Cons. Stat. §3929(a)(1) is a CIMT,
because “it is reasonable to assume” an intent to permanently deprive from the elements of the
offense]; Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992) [grand theft]. Securities Fraud, Matter of
McNaughton, 16 I&N Dec. 569 (BIA 1978). Trespass (Malicious), Matter of Esfandiary, 16 I&N
Dec. 659 (BIA 1979); Uttering a Forged Instrument, Walker v. U.S. Att’y Gen., 783 F.3d 1226
(11th Cir. 2015) [conviction under Fla. Stat. §831.02 for uttering a forged instrument is categorically
a CIMT because it involves deceit]; Vandalism, Matter of Hernandez, 26 I&N Dec. 397 (BIA 2014)
[malicious vandalism under Cal. Penal Code §594(a) with a gang enhancement under Cal. Penal
Code §186.22(d)]; but see Hernandez-Gonzalez v. Holder, 778 F.3d 793, 806-09 (9th Cir. 2015)
[BIA decision in Matter of Hernandez, 26 I&N Dec. 397 (BIA 2014) that a conviction under Cal.
Penal Code §186.22(b)(1) enhancement statute for person who is convicted of a felony related to a
criminal street gang is a CIMT is not entitled to Chevron deference]; Vehicle Fraud, Kporlor v.
Holder, 597 F.3d 222, 225 (4th Cir. 2010) [procuring a vehicle with intent to defraud under Va. Code
Ann. §18.2-206]; Disregard for Property While Eluding Police in Vehicle, Matter of Ruiz-Lopez,
25 I&N Dec. 551 (BIA 2011) aff’d Ruiz-Lopez v. Holder, 682 F.3d 513, 516-21 (6th Cir. 2012)
[violation of Washington Rev. Code §46.61.024 for driving a vehicle in a manner indicating a
wanton or willful disregard for the lives or property of others while attempting to elude a police
vehicle after being given a signal by police to stop].
Breaking and Entering or Unlawful Entry with no intent, Matter of M-, 2 I&N Dec. 721 (BIA/AG
1946), Matter of G-, 1 I&N Dec. 403 (BIA 1943), but see Matter of Moore, 13 I&N Dec. 711 (BIA
1971) [CIMT where intent to commit larceny is an element], Tahir v. Lehmann. 171 F.Supp. 589
(N.D. Ohio 1958), aff’d, 264 F.2d 892 (6th Cir. 1961). Burglary, Hernandez-Cruz v. Holder, 651
F.3d 1094, 1105-08 (9th Cir. 2011) [a conviction under Cal. Penal Code §459 for second degree
commercial burglary does not meet the generic definition of a CIMT, does not qualify as fraudulent
conduct and does not otherwise constitute acts that are morally reprehensible]; Wala v. Mukasey,
511 F.3d 102 (2d Cir. 2007) [3rd degree burglary under Conn. General Statute §53a-103 was not a
CIMT under modified categorical approach because burglary with intent to commit larceny is not a
CIMT where there was no intent to deprive the victim permanently of his property]; Cuevas-Gaspar
v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) [accomplice to residential burglary under Wash. Rev.
Code §§9A.52.025(1) and 9A.08.020(3) was not a CIMT under categorical approach because one
could be convicted without intent; however court found under modified categorical approach that it
was a CIMT]; Matter of M-, 2 I&N Dec. 721 (BIA/AG 1946) (3rd degree burglary, breaking and
entering without intent to commit larceny, not a CIMT);Burglary (Possession of Tools to Commit)
Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939), Matter of S-, 6 I&N Dec. 769 (BIA 1955). Counterfeit
Goods Trafficking, Lifeng Wang v. Rodriguez, 830 F.3d 958 (9th Cir. 2016) [conviction under 18
USC §2320 permits a conviction for mistake or confusion and therefore does not necessarily
involve fraud or deceit]; But see Matter of Kochlani, 24 I&N Dec. 128, 129–31 (BIA 2007) [trafficking
in counterfeit goods under 18 USC §2320 is a CIMT]; Tall v. Mukasey, 517 F.3d 1115 (9th Cir. 2008)
[counterfeit of a registered mark, Cal. Penal Code §350(a)(2)]. But see Lifeng Wang v. Rodriguez,
830 F.3d 958 (9th Cir. 2016) [conviction under 18 USC §2320 permits a conviction for mistake or
confusion and therefore does not necessarily involve fraud or deceit]; Entry of Goods by Means
of a False Statement, Notash v. Gonzales, 427 F.3d 693, 696–700 (9th Cir. 2005) [attempted entry
of goods by means of a false statement in violation of 18 USC §542 is not a CIMT under the
categorical approach]; Larceny, Patel v. Holder, 707 F.3d 77 (1st Cir. 2013) [conspiracy to commit
misdemeanor larceny in the fourth degree under Conn. Gen. Stat. §53a-135 was not a CIMT where
statute is divisible and record of conviction did not establish conviction for permanent taking].
Malicious Destruction of Property, Matter of M-, 2 I&N Dec. 686 (BIA 1946); Matter of C-, 2 I&N
Dec. 716 (BIA 1947); Matter of B-, 2 I&N Dec. 867 (BIA 1947); but see Matter of M-, 3 I&N Dec.
272 (BIA 1948); Malicious Mischief, Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995), Matter
of N-, 8 I&N Dec. 466 (BIA 1956); Page 123 Passing Bad Checks where intent is not a necessary
element, Matter of Zangwill, 18 I&N Dec. 22, 28 (BIA 1981); Matter of Balao, 20 I&N Dec. 440 (BIA
1992);Matter of Stasinski, 11 I&N Dec. 202 (BIA 1965), Matter of Bailie, 10 I&N Dec. 679 (BIA
1964); but see Matter of Khalik, 17 I&N Dec. 518 (BIA 1980) [where intent is necessary element, it
is a CIMT]; Matter of Westman, 17 I&N Dec. 50 (BIA 1979), Matter of F-, 6 I&N Dec. 783 (BIA
1955), Matter of Bart, 20 I&N Dec. 436 (BIA 1992). Possession of Stolen Property where guilty
knowledge not essential, Matter of K-, 2 I&N Dec. 90 (BIA 1944), or where there is no intent to
permanently deprive the person of his property. Castillo-Cruz v. Holder, 581 F.3d 1154, 1159–61
(9th Cir. 2009) [receipt of stolen property under Cal. Penal Code §496 is not categorically a CIMT];
but see Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) [in a case involving shoplifting under
Ariz. Rev. Stat. §13-1805A, BIA has changed its view so that not only intent to permanently deprive
a person of his property constitutes a CIMT but now it is “an intent to deprive the owner of his
property either permanently or under circumstances where the owner’s property rights are
substantially eroded.”]; Joyriding, Matter of Brieva-Perez, 23 I&N Dec. 766 (BIA 2005); Matter of
M-, 2 I&N Dec. 686 (BIA 1946). Rioting, Matter of O-, 4 I&N Dec. 301 (BIA 1951). Theft, Lucio-
Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017) [Westminster, Colorado Municipal Code, WMC 6-
3-1(A) is not categorically a CIMT because one divisible subsection does not require permanent
deprivation of property]; Theft of Services, Matter of G-, 2 I&N Dec. 235 (BIA 1945). Theft of
Vehicle, Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2015, amended 2016) (en banc)
[conviction for misdemeanor violation of Cal. Vehicle Code §10851(a) is not a CIMT];
Unauthorized Use of a Vehicle under Tex. law, Ramirez v. Ashcroft, 361 F.Supp.2d 650, 657–59
(S.D. Tex. 2005).
(4) Crimes Against Government
The BIA has held that: “A crime that impairs and obstructs a function of a department of government
by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or
dishonest means is a crime involving moral turpitude.” Matter of Tejwani, 24 I&N Dec. 97, 98 (BIA
2007), rev’d, Tejwani v. U.S. Att’y Gen., 349 F.App’x 719 (3d Cir. 2009) [quoting Board decisions in
Matter of Jurado, 24 I&N Dec. 29, 35 (BIA 2006) and Matter of Flores, 17 I&N Dec. 225, 229 (BIA
1980) and finding that N.Y. Penal Law §470.10(1), involving money laundering, is a CIMT]. It has also
held that “[a]ffirmative acts to conceal criminal activity and impede law enforcement have been found
to be crimes involving moral turpitude.” Id. [citing Matter of Robles, 24 I&N Dec. 22, 25–26 (BIA 2006)];
Matter of Mendez, 27 I&N Dec. 219 (BIA 2018) [misprision of a felony in violation of 18 USC §4 is
categorically a CIMT].
Bribery, Sollazzo v. Esperdy, 285 F.2d 341 (2d Cir. 1961); Matter of H-, 6 I&N Dec. 358 (BIA 1954);
Matter of V-, 4 I&N Dec. 100 (BIA 1950) [attempted bribery]; Matter of Alarcon, 20 I&N Dec. 557
(BIA 1992) [kickbacks on government contracts]. Counterfeiting, Lozano-Giron v. INS, 506 F.2d
1073 (7th Cir. 1974),Matter of P-, 6 I&N Dec. 795 (BIA 1955), Matter of Lethbridge, 11 I&N Dec. 444
(BIA 1965) [possession of counterfeit securities]; Matter of Fernandez, 14 I&N Dec. 24 (BIA 1972)
[transportation of forged securities]. Driver’s License, Montero-Ubri v. INS, 229 F.3d 319 (1st Cir.
2000) [use of fraudulent license]; Matter of Serna, 20 I&N Dec. 579 (BIA 1992) [same]; Zaitona v.
INS, 9 F.3d 432, 437–38 (6th Cir. 1993) [false statement to obtain license]. False Statements on
passport applications, Afamasaga v. Sessions, 884 F.3d 1286 (10th Cir. 2018) [false statement on
application for U.S. passport under 18 USC §1542]; Rodriguez v. Gonzales, 451 F.3d 60 (2d Cir.
2006) [under 18 USC §1542]; Bisaillon v. Hogan, 257 F.2d 435 (9th Cir. 1958); Matter of Correa-
Garces, 20 I&N Dec. 451, 454 (BIA 1992), on firearms applications, Matter of Acosta, 14 I&N Dec.
338 (BIA 1973), to government authorities, Matter of Jurado, 24 I&N Dec. 29, 34–35 (BIA 2006)
[unsworn falsification to authorities under 18 Pa. Cons. Stat. §4904(a) is a CIMT even if not
material], under 18 USC §1546 (document fraud), Calvo-Ahumada v. Rinaldi, 435 F.2d 544 (3d Cir.
1970); False Statement Under 18 USC §1001, Matter of Pinzon, 26 I&N Dec. 189, 192-95 (BIA
2013) [finding 18 USC §1001(a)(2) Page 124 which criminalizes only making a false statement to
be a CIMT]; Fayzullina v. Holder, 777 F.3d 807, 809-14 (6th Cir. 2015) [conviction for 18 USC
§1001(a)(3) for knowingly and willfully making or using any false writing knowing it to contain a
false statement]; Kellermann v. Holder, 592 F.3d 700, 703–05 (6th Cir. 2010) [under modified
categorical approach]; Ghani v. Holder, 557 F.3d 836, 840-41 (7th Cir. 2009); Omagah v. Ashcroft,
288 F.3d 254 (5th Cir. 2002); Kabongo v. INS, 837 F.2d 753, 758 (6th Cir. 1988); but see U.S. v.
Hirsch,308 F.2d 562 (9th Cir. 1962); Matter of G-, 8 I&N Dec. 315 (BIA 1959); Matter of Marchena,
12 I&N Dec. 355 (BIA 1967); Matter of Expinoza, 10 I&N Dec. 98 (BIA 1962); Matter of B-M-, 6 I&N
Dec. 806 (BIA 1955). Fleeing (Aggravated) a Police Officer, Cano-Oyarzabal v. Holder, 774 F.3d
914 (7th Cir. 2014) [Wis. Stat. §346.04(3) operating a vehicle to flee or attempt to elude an officer];
Mel v. Ashcroft, 393 F.3d 737 (7th Cir. 2004) [Ill. statute 625 ILCS 5/11-204.1(a)(1)]; Matter of Ruiz-
Lopez, 25 I&N Dec. 551 (BIA 2011) aff’d Ruiz-Lopez v. Holder, 682 F.3d 513, 516-21 (6th Cir. 2012)
[violation of Washington Rev. Code §46.61.024 for driving a vehicle in a manner indicating a
wanton or willful disregard for the lives or property of others while attempting to elude a police
vehicle after being given a signal by police to stop]. Harboring a Fugitive, Matter of Sloan, 12 I&N
Dec. 840 (AG 1968). ID Document Fraud, De Martinez v. Holder, 770 F.3d 823 (9th Cir. 2014)
[criminal impersonation by assuming a false identity with intent to defraud under Ariz. Rev. Stat.
§13-2006(A)(1) was a CIMT when using a false Social Security number to work]; Yeremin v. Holder,
738 F.3d 708, 714-19 (6th Cir. 2013) [conspiracy under 18 USC §1028(f) to traffic in identification
documents in violation of 18 USC §1028(a)(3) because it categorically involves intent to use or
transfer documents unlawfully and not simply possess them]; Nino v. Holder, 690 F.3d 691, 694-96
(5th Cir. 2012) [possession of fraudulent ID information with intent to harm or defraud another under
Tex. Penal Code §32.51(b)]; Lagunas-Salgado v. Holder, 584 F.3d 707 (7th Cir. 2009) [fraud in
connection with identification documents under 18 USC §1028(a)(2)]; Immigration Fraud under 18
USC §1546, Omagah v. Ashcroft, 288 F.3d 254 (5th Cir. 2002) [18 USC §371, conspiracy to
possess illegal immigration documents with the intent to defraud the government]; Matter of Serna,
20 I&N Dec. 579 (BIA 1992) [possession of document with knowledge that it was altered].
Impersonating a Federal Officer, Matter of B-, 3 I&N Dec. 270 (BIA 1948). Larceny Defrauding a
Public Community, Mendez v. Mukasey, 547 F.3d 345 (2d Cir. 2008) [Conn. Gen. Stat. §53a-
122(a)(4)]; Mail (Possession of Stolen Mail), Okoroha v. INS, 715 F.2d 380 (8th Cir. 1983). Mail
Fraud, Nason v. INS, 394 F.2d 223 (2d Cir. 1968), Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).
Money Laundering, Smalley v. Ashcroft, 354 F.3d 332, 335–40 (5th Cir. 2003) [interstate travel in
aid of a racketeering enterprise in violation of 18 USC §1952 to facilitate money laundering in
violation of 18 USC §1956(a)(3)(B)]; Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007), rev’d, Tejwani v.
U.S. Att’y Gen., 349 F.App’x 719 (3d Cir. 2009) [N.Y. Penal Law §470.10(1) involving the intentional
use of monetary instruments to conceal or disguise proceeds of any crime]. Naturalization,
Unlawful Procurement. Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) [18 USC
§1425(a), unlawful procurement of naturalization]. Obstruction of Justice, Padilla v. Gonzales,
397 F.3d 1016, 1019–21 (7th Cir. 2005)[720 Ill. Comp. Stat. 5/31-4(a) for knowingly furnishing false
information with intent to prevent the apprehension or obstruct the prosecution or defense of any
person]. Passport, Misuse for International Terrorism, Vinh Tan Nguyen v. Holder, 763 F.3d
1022, 1027 (9th Cir. 2014) [misuse of a passport to facilitate an act of international terrorism under
18 USC §1544 is categorically a CIMT]. Pell Grant Fraud, Izedonmwen v. INS, 37 F.3d 416 (8th
Cir. 1994). Perjury, Matter of W-, 5 I&N Dec. 759 (BIA 1954); Matter of B-, 5 I&N Dec. 405 (BIA
1953); Matter of P-, 4 I&N Dec. 373 (BIA 1951); Matter of H-, 1 I&N Dec. 581 (BIA 1943); but see
Rosales Rivera v. Lynch, 816 F.3d 1064 (9th Cir. 2016) [written perjury under Cal. Penal Code §118
is not a CIMT]; Matter of L-, 1 I&N Dec. 324 (BIA 1942) [perjury under Canadian statute not CIMT].
Social Security Misuse, De Martinez v. Holder, 770 F.3d 823 (9th Cir. 2014) [criminal
impersonation by assuming a false identity with intent to defraud under Ariz. Rev. Stat. §13-2006(A)
(1) was a CIMT when using a false Social Security number to work]; Marin-Rodriguez v. Holder, 710
F.3d 734 (7th Cir. 2013) [use of fraudulent SS card to obtain and maintain employment in violation
of 18 USC §1546(a)]; Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. 2010) [misusing a SSN in
violation of 42 USC §408(a)(7)(B)]; Page 125 Lateef v. DHS, 592 F.3d 926 (8th Cir. 2010)
[conviction under 42 USC §408(a)(7)(A) for using a Social Security number based upon false
information]; Serrato-Soto v. Holder, 570 F.3d 686, 689–92 (6th Cir. 2009) [Miss. Code §97-19-85,
fraudulent use of a Social Security number or identifying information to obtain goods is a CIMT];
Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007) [misusing a SSN obtained by fraud in violation of 42
USC §408(a)(7)(A)]; Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) [false representations
regarding SSN]; but see Beltran-Tirado v. INS, 213 F.3d 1179, 1183–85 (9th Cir. 2000) [falsely
representing a SSN in violation of 42 USC §408(g)(2) now recodified at §408(a)(7)(B) is not a
CIMT]; Arias v. Lynch, 834 F.3d 823, 826-30 (7th Cir. 2016), [42 USC §408(a)(7)(B) not
categorically a CIMT]. Stolen Bus Transfers, Michel v. INS, 206 F.3d 253, 261–66 (2d Cir. 2000)
[possession of stolen bus transfers where knowledge that property was stolen is an element]. Tax
Evasion, Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. 2005) [Cal. Rev. & Tax Code §19406 is CIMT
because intent to defraud is implicit in the statute]; Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th
Cir. 1997) [willful tax evasion under state law]; Khan v. Barber, 253 F.2d 547 (9th Cir. 1958); but see
U.S. v. Carrollo, 30 F.Supp. 3 (D. Mo. 1939). Transport (Unlawful), Fuentes-Cruz v. Gonzales, 489
F.3d 724 (5th Cir. 2007) [Tex. Penal Code §20.05 is CIMT because it requires unlawful
transportation for pecuniary gain in a manner designed to conceal the person from local, state, or
federal law enforcement]. Turnstile jumping (going into subway without paying) Santos-Gonzalez
v. Reno, 93 F.Supp.2d 286, 288 n.3 (E.D.N.Y. 2000). Welfare fraud, Miller v. INS, 762 F.2d 21 (3d
Cir. 1985), U.S. v. Concepcion, 795 F.Supp. 1262, 1274–75 (E.D.N.Y. 1992) [theft and conversion
of U.S. funds by obtaining welfare benefits fraudulently].
Alien Smuggling under 8 USC §1324(a), U.S. v. Sucki, 748 F.Supp. 66 (E.D.N.Y. 1990), Matter of
Tiwari, 19 I&N Dec. 875 (BIA 1989), but see U.S. v. Raghunandan, 587 F.Supp. 423 (S.D.N.Y.
1984). Conspiracy to Commit Offenses Against U.S., Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962).
Contempt of Congress, Matter of P-, 6 I&N Dec. 400 (BIA 1954). Evading Arrest, Laryea v.
Sessions, 871 F.3d 337 (5th Cir. 2017) [under modified categorical approach evading arrest, a class
A misdemeanor, in violation of Tex. Pen. Code §38.04 is not a CIMT because simply fleeing a
police officer without more does not rise to the level of moral turpitude]; False Attestation on I-9,
Beltran-Tirado v. INS, 213 F.3d 1179, 1183–85 (9th Cir. 2000). False Identification to a Police
Officer, Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. 2012) [providing a false name to a peace officer
in violation of Minn. Stat. §609.506.1 under the “realistic probability” test is not categorically a
CIMT]; Blanco v. Mukasey, 518 F.3d 714, 718–20 (9th Cir. 2008) [Cal. Penal Code §148.9(a) not
categorically a CIMT]. False Information to Official, Flores-Molina v. Sessions, 850 F.3d 1150
(10th Cir. 2017) [false information to a city official during an investigation under Denver Municipal
Code §38-40 is not categorically a CIMT because it does not explicitly contain an element of an
intent to deceive or defraud]. False Statements not amounting to perjury, Matter of S-, 2 I&N Dec.
353 (BIA 1945). False Statement Under 18 USC §1001, U.S. v. Hirsch,308 F.2d 562 (9th Cir.
1962), Matter of G-, 8 I&N Dec. 315 (BIA 1959), Matter of Marchena, 12 I&N Dec. 355 (BIA 1967);
Matter of Expinoza, 10 I&N Dec. 98 (BIA 1962); Matter of B-M-, 6 I&N Dec. 806 (BIA 1955); but see
Matter of Pinzon, 26 I&N Dec. 189, 192-95 (BIA 2013) [finding 18 USC §1001(a)(2) which
criminalizes only “making a false statement” to be a CIMT]; Kellermann v. Holder, 592 F.3d 700,
703–05 (6th Cir. 2010) [under modified categorical approach]; Ghani v. Holder, 557 F.3d 836, 840-
41 (7th Cir. 2009); Omagah v. Ashcroft, 288 F.3d 254 (5th Cir. 2002); Kabongo v. INS, 837 F.2d
753, 758 (6th Cir. 1988). Firearms, importing or shipping firearms, Mayorga v. U.S. Att’y Gen., 757
F.3d 126, 132-35 (3d Cir. 2014) [conviction for 18 USC §922(a)(1)(A) (dealing in firearms without
license) and 18 USC §922(a)(2) (ship firearms across state lines to unauthorized person)]; Military
Crimes, desertion, Matter of S-B-, 4 I&N Dec. 682 (BIA 1952), failure to report for induction, Matter
of S-, 5 I&N Dec. 425 (BIA 1953); but see Matter of R-, 5 I&N Dec. 29 (AG 1952). Money
Laundering (structuring financial transactions to avoid currency reporting under 31 USC §5324(a)
(3)), Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993); Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999)
[reversing Matter of Goldeshtein] Page 126 ; but see Smalley v. Ashcroft, 354 F.3d 332, 335–40
(5th Cir. 2003) [interstate travel in aid of a racketeering enterprise in violation of 18 USC §1952 to
facilitate money laundering in violation of 18 USC §1956(a)(3)(B)]; Tejwani v. U.S. Att’y Gen., 349
F.App’x 719 (3d Cir. 2009), rev’g Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007) [N.Y. Penal Law
§470.10(1), involving the intentional use of monetary instruments to conceal or disguise proceeds
of a crime]. Obstruction of Administration of Law/Gov. Function, Ildefonso-Candelario v. U.S.
Att’y Gen., 866 F.3d 102, 104-07 (3d Cir. 2017) [under categorical approach a violation of 18 Pa.
Cons. Stat. §5101 for misdemeanor obstruction is not a CIMT]; Obstruction of Justice, Ramirez v.
Sessions, 887 F.3d 693 (4th Cir. 2018) [conviction for obstruction of justice pursuant to Va. Code
Ann. §18.2-460(A) is not a CIMT because it may be committed without fraud, deception, or any
other aggravating element that shocks public conscience]; Perjury (written) Rosales Rivera v.
Lynch, 816 F.3d 1064 (9th Cir. 2016) [written perjury under Cal. Penal Code §118 is not a CIMT];
Reentry After Deportation, Rodriguez v. Campbell, 8 F.2d 983 (5th Cir. 1925). Social Security
Misuse, Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000) [falsely representing a SSN, 42 USC
§408(g)(2) (now recodified at §408(a)(7)(B)) is not a CIMT]; Arias v. Lynch, 834 F.3d 823, 826-30
(7th Cir. 2016) [42 USC §408(a)(7)(B) not categorically a CIMT], but see Lateef v. DHS, 592 F.3d
926 (8th Cir. 2010) [conviction under 42 USC §408(a)(7)(A) for using a Social Security number
based upon false information]; Serrato-Soto v. Holder, 570 F.3d 686, 689–92 (6th Cir. 2009) [Miss.
Code §97-19-85, involving the fraudulent use of a SSN or identifying information to obtain goods, is
a CIMT]; Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007) [misusing a SSN obtained by fraud, 42 USC
§408(a)(7)(A)].
(5) Crimes Involving Fraud—Any crime involving fraud is almost always a CIMT, see, e.g., Jordan v. De
George, 341 U.S. 223, 227–32 (1951);Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), Planes v.
Holder, 652 F.3d 991, 997-98 (9th Cir. 2011) [rejecting Pregerson’s concurrence in Navarro-Lopez and
noting “the longstanding rule that crimes that have fraud as an element … are categorically involving
moral turpitude”] whether against the government or individuals, except for false statements not
amounting to perjury. However, a person may be deported even if the statute does not require an
intent to defraud. Matter of Kochlani, 24 I&N Dec. 128, 129–31 (BIA 2007) [trafficking in counterfeit
goods under 18 USC §2320 is a CIMT even if intent to defraud is not an element].
(6) Misprision of Felony—Some circuits have found that misprision of felony constitutes a CIMT. Villegas-
Sarabia v. Sessions, 874 F.3d 871, 877-81 (5th Cir. 2017) [misprision of a felony under 18 USC §4 is
categorically a CIMT]; Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) [misprision of felony is a CIMT
where it arose in connection with a scheme to rent automobiles, report them stolen to local police, and
export them to Kuwait]. The BIA agrees. Matter of Mendez, 27 I&N Dec. 219 (BIA 2018) [reaffirming
Robles and holding that misprision of a felony in violation of 18 USC §4 is categorically a CIMT and
whether the underlying offense is or is not a CIMT is irrelevant]; Matter of Robles, 24 I&N Dec. 22, 25–
27 (BIA 2006) [overruling Matter of Sloan; misprision of a felony in violation of 18 USC §4 is a CIMT].
But see Robles-Urrea v. Holder, 678 F.3d 702, 707-12 (9th Cir. 2012) reversing Matter of Robles
[misprision is not categorically a CIMT because it does not require a specific intent to conceal, but only
knowledge of the felony]. See also, Lugo v. Holder, 783 F.3d 119 (2d Cir. 2015) [in light of the BIA’s
inconsistent decisions and the split in circuits, remanding the case back to the BIA for a precedent
decision].
(7) Accessory After the Fact and Other Inchoate Crimes—The BIA maintains that all inchoate crimes
including attempt, conspiracy, accessory before the fact, facilitation, or solicitation may be CIMTs if the
underlying crime is a CIMT. Matter of Gonzalez Romo, 26 I&N Dec. 743, 746 (BIA 2016) [finding
solicitation to possess marijuana for sale under Ariz. Rev. Stat. §§13-1002 and 13-2405(A)(2) is a
CIMT because the underlying crime is a CIMT]. One circuit has found that accessory after the fact is
not a CIMT. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other
grounds, U.S. v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) [nothing in Cal. Penal
Code §32 under the categorical or modified categorical approach inherently makes accessory after the
fact a CIMT]; But see Matter of Rivens, 25 I&N Dec. 623, 627-30 (BIA 2011) [accessory Page 127 after
the fact is a CIMT if underlying crime is a CIMT]; Cabral v. INS, 15 F.3d 193 (1st Cir. 1994) [accessory
after the fact to murder].
(8) Violations of Regulatory Laws—Violations of regulatory laws generally are not CIMTs. Mohamed v.
Holder, 769 F.3d 885, 888-90 (4th Cir. 2014) [disagreed with Tobar-Lobo and found that failing to
register as a sex offender under Va. Code Ann. §18.2-472.1 was like failing to register for the draft,
was not malum in se, and a regulatory crime]; Mayorga v. U.S. Att’y Gen., 757 F.3d 126, 132-35 (3d
Cir. 2014) [conviction for 18 USC §922(a)(1)(A) (dealing in firearms without license) and 18 USC
§922(a)(2) (ship firearms across state lines to unauthorized person) are regulatory crimes and not
CIMTs]; Totimeh v. U.S. Att’y Gen., 666 F.3d 109, 115-16 (3d Cir. 2012) [predatory offender registration
statute under Minn. Stat. §243.166 because a person may be convicted simply by forgetfulness];
Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) [misdemeanor failure-to-register as a sex offender in
violation of Colo. Rev. Stat. §18-3-412.5(1)(a), (3) is a regulatory crime]; Goldeshtein v. INS, 8 F.3d 645
(9th Cir. 1993) [structuring deposits to avoid reporting requirements under 31 USC §5324(a)(3) is not a
CIMT]; Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999) [adopting Goldeshtein nationwide]; U.S. v. Gloria,
494 F.2d 477 (5th Cir. 1974) [illegal reentry not CIMT]; Matter of G-, 1 I&N Dec. 73 (BIA 1941)
[immigration laws]; Rodriguez v. Campbell, 8 F.2d 983 (5th Cir. 1925) [reentry after deportation], Matter
of Gaglioti, 10 I&N Dec. 719 (BIA 1964) [gambling]. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA
1999) (en banc) [simple DUI is not a CIMT, but aggravated DUI is a CIMT]. But see Matter of Tobar-
Lobo, 24 I&N Dec. 143 (BIA 2007) [failure to register as a sex offender is CIMT even where statute
penalizes forgetfulness]
(9) Drug Offenses—Generally, possessory offenses are not CIMTs. Matter of Abreu-Semino, 12 I&N Dec.
775 (BIA 1968) [possession of LSD]. However, the BIA has determined that possession with intent to
distribute cocaine, where knowledge or intent is an element, is a CIMT. Matter of Khourn, 21 I&N Dec.
1041 (BIA 1997). The Ninth Circuit has held that solicitation to possess at least 4 pounds of marijuana
for sale in violation of Ariz. Rev. Stat. §13-1002(A) & (B)(2) and §13-3405(A)(2) & (B)(6) is a CIMT.
Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007). The BIA agrees and found the same
solicitation statute in Barragan-Lopez to also be a CIMT because an inchoate crime will be a CIMT if
the underlying crime is a CIMT and participation in illicit drug trafficking is a CIMT. Matter of Gonzalez
Romo, 26 I&N Dec. 743, 746 (BIA 2016). Also, consular officers may look to other grounds of
inadmissibility to disqualify an applicant with evidence of a drug crime even if there is no conviction
and no CIMT. 9 FAM 302.3-2(B)(2)(c)(4) [suggesting a consular officer may look to reason to believe
grounds or physical or mental disorder grounds or drug abuse or addiction].
(10) Weapons Offenses—CIMT: Use of weapons in the course of other crimes may indicate moral
turpitude, Matter of Logan, 17 I&N Dec. 367 (BIA 1980). Not CIMT: Carrying concealed weapon. Matter
of Granados, 16 I&N Dec. 726 (BIA 1979). But see Matter of S-, 8 I&N Dec. 344 (BIA 1959).
2. Drug Offenses
INA §212(a)(2)(A)(i)(II), 8 USC §1182(a)(2)(A)(i)(II)
2.a. Generally—Persons who have been convicted, or who admit having committed, or who admit
committing acts that constitute the essential elements of a violation of or conspiracy to violate any law or
regulation of a state, the U.S., or a foreign country relating to a controlled substance as defined in 21 USC
§802, are inadmissible. 8 USC §1182(a)(2)(A)(i)(II). This includes an attempt or conspiracy to commit the
crimes. This section also includes any drug listed in 21 USC §§802(23) and 812 and any drug designated
by the AG in accordance with 21 USC §811. The list of designated drugs are found at Schedules I through
V in 21 CFR §§1308.11 to .15. See Anti-Drug Abuse Act of 1986, PL 99-570, subtitle M. Congress
intended to expand the types of drugs covered under the Act. Matter of Hernandez-Ponce, 19 I&N Dec.
613 (BIA 1988) [finding language broad enough to include conviction for use of a drug (PCP) as
sufficient]. Nevertheless, a person may be inadmissible or deportable for a drug offense only if it is listed
under §802 or, if a state statute, it always encompasses under the categorical approach a drug listed
under §802. Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980 (2015) [under categorical Page 128 approach
the state conviction must be for a controlled substance listed under §802 and where the state statute
encompasses drugs not listed in §802 it cannot be a removable offense]; Matter of Paulus, 11 I&N Dec.
274 (BIA 1965); Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015) [followed Mellouli and reputed
its own former precedents in Luu-Le, 224 F.3d 911, 916, Oseguera-Madrigal, 700 F.3d 1196, 1199-1200,
Bermudez, 586 F.3d 1167, 1168-69and Estrada, 560 F.3d 1039, 1042 and held that Nev. Rev. Stat.
§453.566 for possession of drug paraphernalia was not categorically a violation of a law related to a
controlled substance because it is overbroad and penalizes for possession of drugs not controlled under
federal law]; Rojas v. U.S. Att’y Gen., 728 F.3d 203 (3d Cir. 2013) (en banc) [in paraphernalia case the
government must still prove in a removal proceeding under INA §237(a)(2)(B)(i) that the conviction was
for a controlled substance listed in 21 USC §802 and where 35 Pa. Cons. Stat. §780-113(a)(32) included
drugs not within the federal list respondent was not subject to removal]; Cheuk Fung S-Yong v. Holder,
600 F.3d 1028 (9th Cir. 2009, amended 2010) [conviction under Cal. Health & Safety Code §11379(a) for
the Sale or Transportation of a Controlled Substance is not categorically a drug trafficking crime because
California law regulates the possession and sale of many substances that are not regulated by the CSA
and it was not a trafficking or drug crime under the modified categorical approach because the
respondent’s admission and reference to a document not in the record were insufficient to meet the
Shepard standards]; Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) [“DHS has failed to establish
unequivocally that the particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a
controlled substance as defined in section 802 of the Controlled Substances Act”]; Argaw v. Ashcroft, 395
F.3d 521 (4th Cir. 2005) [where “khat,” a traditional herbal stimulant widely used in East Africa and the
lower Arabian peninsula, is not listed as a controlled substance under 21 USC §812, 21 CFR §§1308.11
to .15, and it was not chemically analyzed to determine if it contained a controlled substance, it cannot be
a ground of inadmissibility as an admission or for “reason to believe”]; Leyva-Licea v. INS, 187 F.3d 1147
(9th Cir. 1999) [following Coronado-Durazo,solicitation to possess marijuana for sale is not a conviction
under CSA]. But see Collymore v. Lynch, 828 F.3d 139 (2d Cir. 2016) [conviction under 1997 version 35
Pa. Cons. Stat. §780-113(a)(30) was categorically a drug crime because the Pennsylvania schedules of
drugs were no broader than the federal and the definition of counterfeit controlled substance defines the
same range of conduct]; Macias-Carreon v. Holder, 716 F.3d 1286 (9th Cir. 2013) [conviction under Cal.
Health & Safety Code §11359 prohibiting possession of marijuana is categorically a drug crime and
respondent failed to demonstrate there was a realistic probability that it applied to nonscheduled drugs];
Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) [under modified categorical approach Cal. Health &
Safety Code §11352(a) is a drug crime and not a generic solicitation statute]; Mizrahi v. Gonzales, 492
F.3d 156 (2d Cir. 2007) [misdemeanor 4th-degree criminal solicitation of the sale of drugs under N.Y.
Penal Law §100.05(1) is a law relating to a controlled substance under 8 USC §1182(a)(2)(A)(i)(II)];
Peters v. Ashcroft, 383 F.3d 302 (5th Cir. 2004) [felony solicitation to transport marijuana for sale under
Ariz. Rev. Stat. §13-1002 is a drug crime]. But even where the statute is overbroad, the respondent may
be required to establish that there is a “realistic probability” that the state actually prosecutes someone for
substances not on the federal schedules. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014) [even where a
state statute (Conn. Gen. Stat. Ann. §21a-277(a)) on its face covers a controlled substance not included
in the Federal schedule, there must still be a realistic probability the state would prosecute conduct that
falls outside the generic definition to defeat removability]; Vazquez v. Sessions, 885 F.3d 862, 874 (5th Cir.
2018) [finding U.S. v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc) requirement that the “realistic
probability” test must apply even where a state statute is overbroad, the court found that despite
Oklahoma Stat. Ann. title 63 §2-402(A)(1) being categorically overbroad for containing drugs not listed on
the federal schedules, the failure to brief the issue that the realistic probability test was satisfied resulted
in waiver and the order of deportation was therefore upheld]. But see Swaby v. Yates, 847 F.3d 62, 65-66
(1st Cir. 2017) [rejecting the realistic probability test for controlled substance violations]; Vassell v. U.S.
Att’y Gen., 839 F.3d 1352, 1362 (11th Cir. 2016); Singh v. U.S. Att’y Gen., 839 F.3d 273, 286 (3d Cir.
2016). And when the respondent seeks relief, the burden may be upon him to establish that his conviction
does not related to a drug crime where the record is inconclusive. Syblis v. U.S. Att’y Gen., 763 F.3d 348,
355-58 (3d Cir. 2014) [where record of conviction was inconclusive in regard to conviction under Va. Code
Ann. §54.1-3666 for possession Page 129 of drug paraphernalia, applicant for adjustment/waiver failed to
meet his burden to demonstrate eligibility for relief]. But see Sauceda v. Lynch, 819 F.3d 526 (1st Cir.
2016) [a noncitizen can qualify for cancellation of removal without having to prove affirmatively that her
conviction was not a disqualifying conviction because the allocation of the burden of proof post-Moncrieffe
and Mellouli “does not come into play” as the issue is purely a legal question]; Thomas v. U.S. Att’y Gen.,
625 F.3d 134, 148 (3d Cir. 2010) [inconclusive record sufficient to meet burden]; Martinez v. Mukasey, 551
F.3d 113 (2d Cir. 2008) [same].
The petty-offense exception under INA §212(a)(2)(A)(ii) does not appear to waive petty drug offenses.
This is consistent with DOS policy. Correspondence in March–May 1989 of Odom, Chief of Advisory
Opinions, DOS, reprinted in 66 No. 36 Interpreter Releases 1042–43, 1052–55 (Sept. 18, 1989).
However, DOS recognizes that a person shall not be ineligible for a visa based upon an admission or
conviction relating to simple possession or use of a controlled substance, “if the acts … occurred while the
alien was under the age of eighteen.” 9 FAM 302.4-2(B)(5). For additional case authority see in this
chapter ¶ V.G.6 (p.270), infra.
A waiver is available for a single offense of simple possession of less than 30 grams of marijuana under
INA §212(h). Rana v. Holder, 654 F.3d 547 (5th Cir. 2011) [waiver only available one time to waive one
simple possession crime]; Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009) [drug paraphernalia
offense may qualify for §212(h) waiver if that offense “relates to a single offense of simple possession of
30 grams or less of marijuana”]; Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008) [§212(h)
waiver may apply to drug paraphernalia where the amount involved was 30 grams or less of marijuana]. A
foreign conviction under this statute must include the requisite intent necessary for a criminal conviction.
Lennon v. INS, 527 F.2d 187 (2d Cir. 1975). However, specific intent or mens rea is no longer required for
a U.S. conviction given the broadening of the statute. Matter of Esqueda, 20 I&N Dec. 850 (BIA 1994); 9
FAM 302.4-2(B)(1)(U) [removing the term “guilty knowledge” from an earlier version of INA §212(a)(2)(A)
(i)(II) eliminated the Lennon distinction]. Under the Anti-Drug Abuse Act of 1986, the drugs included as
controlled substances are expressly made retroactive, but affect only those persons who made an entry
after the date of the Act.
2.b. Drug Paraphernalia—In Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980 (2015), the Supreme Court,
interpreting the same language in the controlled substance ground of deportability, determined that a
conviction for misdemeanor possession of drug paraphernalia in violation of Kan. Stat. Ann. §21-5709(b)
(2) is not a deportable offense because the state statute did not require that the substance be defined
under 21 USC §802 and the state did not charge or seek to prove that the defendant possessed a
substance on the §802 schedule. The Court recognized that the BIA accepted this analysis for possession
of a drug in Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) where it declined removal for a state California
conviction that may not have been a federal drug offense. However, the Board’s application of a different
rule for drug paraphernalia in Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009) that allowed for
deportation where the state statute may not have included a federally defined drug offense made “scant
sense” and “is owed no deference under … Chevron.” Mellouli at 1989. The Court also rejected the
suggestion that where state and federal definitions “overlap” but are not identical that a person may be
deported for the state conviction. It also rejected the Board’s and the dissent’s efforts to read the “relating
to” language in INA §237(a)(2)(B)(i) to the “breaking point” that would allow a state court conviction where
no federal controlled substance is an element of the offense. Mellouli at 1989-90. See also Madrigal-
Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015) [followed Mellouli and reputed its own former precedents
in Luu-Le, 224 F.3d 911, 916, Oseguera-Madrigal, 700 F.3d 1196, 1199-1200, Bermudez, 586 F.3d 1167,
1168-69and Estrada, 560 F.3d 1039, 1042 and held that Nev. Rev. Stat. §453.566 for possession of drug
paraphernalia was not categorically a violation of a law related to a controlled substance because it is
overbroad and penalizes for possession of drugs not controlled under federal law]; Rojas v. U.S. Att’y
Gen., 728 F.3d 203 (3d Cir. 2013) (en banc) [in paraphernalia case the government must still prove in a
removal proceeding under 8 USC §1227(a)(2)(B)(i)that the conviction was for a controlled substance
listed in 21 USC §802 and where 35 Pa. Cons. Stat. §780-113(a)(32) contained drugs not on the federal
list and was not divisible, respondent was not deportable]. But see pre-Mellouli: Barma v. Holder, 640 F.3d
749 (7th Cir. 2011) [conviction under Wisconsin law for drug paraphernalia is a deportable offense as a
drug conviction and INA §212(h) Page 130 is unavailable]; Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d
1191 (11th Cir. 2008) [conviction for drug paraphernalia is a crime relating to a controlled substance under
INA §212(a)(2)(A)(i)(II)]; Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008) [in removal proceeding
regarding inadmissibility, the court rejected the argument that drug paraphernalia is not banned under 21
USC §863, but also held that in certain cases an INA §212(h) waiver would apply to drug paraphernalia].
But see Popescu-Mateffy v. Holder, 678 F.3d 612 (8th Cir. 2012) [conviction under S.D. Codified Laws
§35-12-52.3 for possession of drug paraphernalia in a motion vehicleis an enhanced penalty and exceeds
simple possession thereby rendering INA §212(h) unavailable].
2.c. Admissions—In Matter of K-, 7 I&N Dec. 594, 598 (BIA 1957), the BIA adopted a 3-part test for the
acceptance of an admission as a ground of inadmissibility: (1) the admitted conduct must constitute the
essential elements of the crime; (2) the applicant must have been provided with a definition and the
essential elements of the offense prior to his admission; and (3) the admission must be voluntary. The
applicant must also admit all facts constituting the crime. Matter of E-N-, 7 I&N Dec. 153 (1956). See also
22 CFR §40.21(a)(1); Matter of G-, 1 I&N Dec. 225 (BIA 1942) [admission must be voluntary]; Matter of
C-, 1 I&N Dec. 14 (BIA 1941); Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. 2013) [by agreeing in
plea agreement that the government could have proved the factual basis for defendant’s conviction for
conspiracy to commit racketeering in violation of 18 USC §1962(d) regarding distribution of controlled
substances, respondent admitted facts sufficient to bar AOS]; Esquivel-Garcia v. Holder, 593 F.3d 1025,
1029–30 (9th Cir. 2010) [AOS properly denied by IJ where petitioner’s nonspecific conviction under Cal.
Health & Safety Code §111350 was coupled withhis statement on the stand that he thought he was
convicted of heroin]; Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) [beneficiary’s admission to
doctor during medical exam for IV in Philippines that he smoked marijuana for a number of years was
used as the basis to deny visa upon entry to U.S. and to thereafter exclude him]. See also IFM at 17.17(a)
[“An alien must admit violating a specific controlled substance statute, with reference to the specific
statute and to the factual elements that would have to be proved to establish a conviction for the offense”];
Pagayon v. Holder, 675 F.3d 1182, 1189-90 (9th Cir. 2012) [using petitioner’s pleading stage admission in
removal proceeding regarding his conviction to overcome ambiguity in Shepard documents between the
indictment and the conviction as to whether he was convicted of a controlled-substance violation under
Cal. Health & Safety Code §11377(a)]. But see Matter of ___, Manila, Philippines (AAO June 17, 2009),
AILA Doc. No. 10072664 [finding the failure of the court in Pazcoguin to adhere to Matter of K-
unpersuasive and recognizing the applicant in this case was never provided an adequate explanation of
the crime as required by Matter of K-]. DOS takes the position that a police “caution” under British law
“can form the basis for an ineligibility determination based on an admission even if there was no taking of
an oath or record made of the proceedings.” Q&A; Responses, Visa Office (Apr. 9, 2014) at p.2–3, AILA
Doc. No. 14041600 [reading Matter of K- narrowly to not required a statement under oath].
At least one circuit has held that a person whose conviction is expunged under the Federal First Offender
Act or its equivalent (including a foreign expungement) cannot be inadmissible for admitting facts that
constitute a drug crime. Rice v. Holder, 597 F.3d 952 (9th Cir. 2010) [expunged drug conviction does not
bar a finding of GMC for purposes of cancellation because it would have been treated under the Federal
First Offenders Act as an expunged conviction and can have no legal consequence including as an
“admission” of a drug crime]; Romero v. Holder, 568 F.3d 1054, 1060–62 (9th Cir. 2009) [a conviction
expunged under the state equivalent of the FFOA cannot be used for any purpose including an
“admission” of guilt of the crime to bar good moral character under INA §101(f)(3) in a cancellation
application]; Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) [the BIA’s refusal to recognize a foreign
expungement for first time offenders under the UK’s Rehabilitation of Offenders Act of 1974 violated equal
protection]. Rice, Romero and Dillingham were all overruled by the en banc court prospectively for
convictions after July 14, 2011, but solely on the basis that a state equivalent of the FFOA may be used
as a conviction. Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) [equal protection does not
require an expunged state court conviction for simple possession be treated the same as the FFOA];
Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1218-19 (9th Cir. 2016) [respondent who pleaded to two
counts of drug possession before July 14, 2011 could obtain FFOA treatment Page 131 because it was
one offense]. See also Danso v. Gonzales, 489 F.3d 709 (5th Cir. 2007) [finding no equal protection
violation in the BIA’s refusal to equate a “spent” drug conviction under UK law that automatically expunges
a conviction after a number of years with the FFOA and questioning whether the FFOA survived the
statutory definition of conviction under 8 USC §1101(a)(48)(A)]. But in Reyes v. Lynch, 834 F.3d 1104 (9th
Cir. 2016) the court clarified that an expunged drug conviction is a conviction for immigration purposes
including barring cancellation and adjustment regardless of the rehabilitative purpose or probation.
Legacy INS adopted the view that an Agreement to Pay Monetary Penalty to Customs, where a person
has a controlled substance in his possession at the time of his Customs’ inspection, is not considered an
admission and the “Service may not seek an alien’s exclusion as an alien who has admitted a controlled
substance violation,” based solely on the signed agreement to pay. Legal Memo, Aleinikoff, G.C. Op. No.
95-4, HQ 235-P (Jan. 20, 1995), reprinted in 1995 WL 1796311. See also IFM 17.17(a) (Technical Notes)
[suggesting that other grounds of inadmissibility may be considered including “reason to believe”].
2.d. Reason to Believe Person is a Drug Trafficker—A related inadmissibility ground also includes a person
that the U.S. knows or has reason to believe is a trafficker in any controlled substance or knows or has
reason to believe is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit
trafficking in any controlled substance as defined in 21 USC §802. INA §212(a)(2)(C)(i), 8 USC §1182(a)
(2)(C)(i); 9 FAM 302.4-3(B)(3). A conviction is unnecessary if DHS has “reason to believe” that the person
is a trafficker. Matter of Rico, 16 I&N Dec. 181 (BIA 1977); Cuevas v. Holder, 737 F.3d 972, 975 (5th Cir.
2013). Moreover, in the view of some courts, vacatur of a conviction does not bar the use of the
underlying facts to deny admission to a trafficker. Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. 2014) [a
plea to possession of cocaine with intent to distribute where there was no issue of voluntariness of the
plea may be used to establish “reason to believe” even where the conviction was later vacated on appeal
on the grounds that the officer lacked sufficient suspicion to make the traffic stop resulting in the arrest];
Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1344-45 (11th Cir. 2010) [recognized plea of a vacated
conviction may be used in a “reason to believe” case but plea in this case was not found to be probative];
Castano v. INS, 956 F.2d 236 (11th Cir. 1992) [expungement under Federal Youth Corrections Act only
bars the use of the conviction to deny admission, not the use of the underlying facts]; Nunez-Payan v.
INS, 815 F.2d 384 (5th Cir. 1987) [Texas deferred adjudication statute doesn’t result in conviction, but plea
can be used as admission]; Matter of Favela, 16 I&N Dec. 753, 755–57 (BIA 1979). And in the view of one
circuit, nor does acquittal. Mena-Flores v. Holder, 776 F.3d 1152, 1156 (10th Cir. 2015) [despite acquittal
there was substantial, reasonable and probative evidence that applicant failed to meet burden to AOS in
removal proceeding]. But see Matter of Zingis, 14 I&N Dec. 621, 625 (BIA 1974) [“Under the provisions of
the Federal Young Corrections Act, the conviction, when it is set aside, is totally set aside. It may not be
used in any way. It is a greater remedy than a pardon”]. However, a deportation charge based on
inadmissibility at the time of entry will not be sustained unless the inspecting officer knew or had “reason
to believe” that the applicant was a controlled substance violator at the time he entered. Matter of Rocha,
20 I&N Dec. 944 (BIA 1995). But see Matter of Casillas-Topete, 25 I&N Dec. 317 (BIA 2010) [modified
Matter of Rocha to permit “reason to believe” charge based upon any DHS officer’s knowledge where an
NTA was issued due to applicant’s conviction before departure and therefore his drug trafficking was
known by DHS, even if the inspecting officer did not know about the conviction or the NTA]. The Ninth
Circuit in Gomez-Granillo v. Holder, 654 F.3d 826, 828-36 (9th Cir. 2011), extended Casillas-Topete to
include the IJ/BIA as officials deciding “reason to believe” when the person was stopped at the border and
subject to an inadmissibility hearing on a “reason to believe” charge. However, the IJ failed to consider the
applicant’s credibility and the case was remanded “because the petitioner has a right to have his
testimony considered.” But the applicant’s testimony may not be considered as true even if the IJ has not
made an explicit adverse credibility finding. Gomez-Granillo, 654 F.3d at 836-37. Although the burden of
proof falls to the applicant to prove he is entitled to enter, “we do not require every alien seeking
admission to the United States to produce evidence proving clearly and beyond a doubt that he is not a
drug trafficker, unless there is already some other evidence—some ‘reason to believe’—that he is one.”
Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1346 (11th Cir. 2010) Page 132 [reversing finding of “reason to
believe” in case involving vacated plea and finding four police reports unreliable and insufficient].
The determination whether there was reason to believe that the person was inadmissible must be based
on reasonable, substantial and probative evidence. Cuevas v. Holder, 737 F.3d 972, (5th Cir. 2013)
[attempting to enter U.S. with 24 kilograms of cocaine found in vehicle he owned and controlled but no
proof that he knew drugs were there]; Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) [reversed BIA
decision finding reason to believe where it violated clearly erroneous rule and impermissibly substituted its
own findings]; Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1346 (11th Cir. 2010); but see Mena-Flores v.
Holder, 776 F.3d 1152, 1161-73 (10th Cir. 2015) [despite unreliability of government witnesses, no law
enforcement identification of applicant’s involvement, tainted evidence due to misrepresentation by
government, and personal characteristics of applicant inconsistent with criminal involvement, court found
a reasonable fact-finder could find sufficient evidence]; Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th
Cir. 2000) [affirming exclusion on reason to believe charge]. The respondent has a right to present
evidence rebutting the charge. Pronsivakulchai v. Gonzales, 461 F.3d 903 (7th Cir. 2006) [reversing IJ’s
finding that respondent was ineligible for asylum based upon reason to believe she had committed a drug
trafficking crime in Thailand when she was deprived of the right to present evidence]. Further, drug
trafficking requires remuneration for the sale or distribution of the drugs. Lopez v. Gonzales, 549 U.S. 47
(2006) [“ordinarily ‘trafficking’ means some sort of commercial activity”]; Jeune v. U.S. Att’y Gen., 476 F.3d
199 (3d Cir. 2007) [Pa. offense of manufacturing, delivering, or possessing with intent to deliver a
controlled substance is not necessarily a trafficking offense since the offender could have been growing
marijuana for personal use]; Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) [distribution of less than 30
grams of marijuana without remuneration is not a drug trafficking crime]. See also Evanson v. U.S. Att’y
Gen., 550 F.3d 284, 292–93 (3d Cir. 2008) [documents allowed under modified categorical approach did
not establish that conviction under 35 Pa. Cons. Stat. §780-113(a)(30) was for a drug trafficking
aggravated felony because there was no proof of remuneration or more than a small amount of
marijuana]; Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992). But see Neuenschwander v. USCIS, 859
F.Supp.2d 759 (E.D. Va. 2012) [distinguishing Lopez and finding that a conviction under Va. Code §18.2-
248(D) for distribution of a small amount of ecstasy without remuneration was a drug trafficking crime
under 21 USC §841(a) even if not a drug trafficking crime under 21 USC §844(a)].The “reason to believe”
charge in the context of a denial of a NIV may be difficult to challenge. Bruno v. Albright, 20 F.Supp.2d 51
(D.D.C. 1998) [no jurisdiction to review decision of consular officer on “reason to believe” grounds, but
there may be review of DOS’s advisory opinion].
The BIA in another context has equated “reason to believe” with “probable cause.” Matter of U-H-, 23 I&N
Dec. 355, 356 (BIA 2002) [addressing “reasonable ground to believe” that someone is engaged in terrorist
activity]. The DOS standard, adopted by the 11th Circuit, “is that the consular officer must have more than
a mere suspicion–there must exist a probability supported by evidence, that the alien is or has been
engaged in trafficking…” 9 FAM 302.4-3(B)(3)(b); Garces, 611 F.3d at 1346 and n.9 [citing Matter of Healy
& Goodchild, 17 I&N Dec. 22, 29 and n.7 (BIA 1979) finding that where the ground of exclusion would
permanently bar the person “close scrutiny of the facts is warranted”]. The circuits have varying standards
but all agree it is something at or greater than probable cause. Cuevas v. Holder, 737 F.3d 972, 975 (5th
Cir. 2013) [discussing views of circuits on probable cause].
For jurisdictional questions, see Chapter10 (pp.1789 et seq.), infra, and, e.g., Mena-Flores v. Holder, 776
F.3d 1152, 1157-61 (10th Cir. 2015) [where respondent was not charged with reason to believe, INA
§242(a)(2)(C) does not bar review and INA §242(a)(2)(B)(i) does not bar review of denial of AOS in
removal for “reason to believe” where the challenge is to inadmissibility and not discretionary factors in
denying AOS].
Spouse, Son, or Daughter—Congress has also made the spouse, son, or daughter of a person
inadmissible for trafficking or assisting traffickers inadmissible if he or she, within the past 5 years,
obtained any financial or other benefit from the illicit activity and knew or reasonably should have known
that the financial or other benefit was the product of illicit activity. INA §212(a)(2)(C)(ii), 8 USC §1182(a)(2)
(C)(ii); 9 FAM 302.3-5(A). Spouses include same-sex marriages. Matter of Zeleniak, 26 I&N Dec. 158, 159
(BIA 2013). Page 133
2.e. Waiver for Simple Possession—A waiver specific to INA §212(a)(2)(A)(i)(II) is available, but only for a
single offense of simple possession of 30 grams or less of marijuana and under limited circumstances.
INA §212(h), 8 USC §1182(h). Matter of Moncada-Servellon, 24 I&N Dec. 62, 65 & n.4 (BIA 2007)
[narrowly interpreting the deportability exception for simple possession of 30 grams or less as not
including a conviction for possession of 30 grams or less of marijuana in prison]; Matter of Martinez-
Zapata, 24 I&N Dec. 424 (BIA 2007) [where conviction was enhanced by virtue of respondent’s
possession of marijuana in a “drug-free zone,” the conviction was more than a conviction for simple
possession of 30 grams of marijuana. Respondent was ineligible for INA §212(h) relief and Matter of
Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992) was superseded for post-Apprendi cases]; Popescu-
Mateffy v. Holder, 678 F.3d 612 (8th Cir. 2012) [conviction under South Dakota Codified Laws §35-12-52.3
for possession of drug paraphernalia in a motor vehicleis an enhanced penalty and exceeds simple
possession thereby rendering INA §212(h) unavailable]. Waiver for paraphernalia included. Matter of
Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009) [person convicted of possession of drug paraphernalia
may, in limited circumstances, be eligible for a INA §212(h) waiver as long as the paraphernalia conviction
is “related to” simple possession of 30 grams or less of marijuana]. Cancellation of removal under INA
§240A(a), 8 USC §1229b(a), may also be available for LPRs even if the possession offense does not
meet the waiver requirements, if the applicant meets the cancellation requirements.
2.f. Constitutionality—The constitutionality of the “reason to believe” provision has been upheld. Rojas-
Garcia v. Ashcroft, 339 F.3d 814, 822–24 (9th Cir. 2003) [rejecting vagueness challenge]; Correa v.
Thornburgh, 901 F.2d 1166, 1173 (2d Cir. 1990).
3. Money Laundering [INA §212(a)(2)(I), 8 USC §1182(a)(2)(I)]—Includes:
3.a. Any alien who a consular officer or the AG knows, or has reason to believe has engaged, is engaging,
or seeks to enter the U.S. to engage in an offense that is described in 18 USC §§1956 or 1957 (relating to
laundering of monetary instruments) is inadmissible. The consular officer or U.S. official must articulate
specific facts relevant to the specific criminal statutes that would make someone a money launderer. 9
FAM 302.3-9(B)(1)(a). The consular officer must articulate specific facts to show the applicant: (1)
engaged in “specified unlawful activity” which is broadly defined in 1956(c)(7); and (2) acted knowing the
property or funds involved represent the proceeds of some form of unlawful activity or with intent to
engage in such “specified unlawful activity.” 9 FAM 302.3-9(B)(1)(b). The BIA in another context has
equated “reason to believe” with “probable cause.” Matter of U-H-, 23 I&N Dec. 355, 356 (BIA 2002)
[addressing “reasonable ground to believe” that someone is engaged in terrorist activity]; 9 FAM 302-
4.3(B)(3) [reason to believe]. At least one circuit has found money laundering to be a CIMT. Smalley v.
Ashcroft, 354 F.3d 332, 335–40 (5th Cir. 2003) [interstate travel in aid of a racketeering enterprise in
violation of 18 USC §1952 to facilitate money laundering in violation of 18 USC §1956(a)(3)(B)].
3.b. Any alien who the consular officer or AG knows is, or has been a knowing aider, abettor, assister,
conspirator, or colluder in regard to money laundering.
4. Two or More Offenses [INA §212(a)(2)(B), 8 USC §1182(a)(2)(B), 9 FAM 302.3-4(B)(3)]—Any alien is
inadmissible who has been convicted of 2 or more offenses (other than purely political offenses), whether or
not moral turpitude, and whether or not the conviction was in a single trial or whether the convictions form a
single scheme, if the aggregate sentence of confinement actually imposed is 5 years or more. INA §212(a)(2)
(B), 8 USC §1182(a)(2)(B). To determine what sentence was actually imposed, a party must look to what the
court did, not how it may have characterized its actions. Rodrigues v. INS, 994 F.2d 32 (1st Cir. 1993)
[vacating INS determination that person ineligible to adjust on grounds that the sentencing judge stated the
person was sentenced to 10 years and deemed to have served it by having served 1709 days]. Pursuant to
INA §101(a)(48)(B), however, sentence is now defined as including any suspension or withholding of the
sentence, including suspension of imposition of the sentence. Matter of S-S-, 21 I&N Dec. 900 (BIA 1997);
Matter of Esposito, 21 I&N Dec. 1 (BIA 1995) [a sentence to confinement where the execution is later
suspended is a sentence actually imposed]. Page 134
5. Prostitution—Prostitutes or persons who have engaged in or sought to engage in prostitution or to procure

prostitutes within the past 10 years or seek to enter the U.S. to engage in prostitution are inadmissible. INA
§§212(a)(2)(D)(i)–(ii), 8 USC §1182(a)(2)(D)(i)–(ii); 22 CFR §40.24. Matter of R-M-, 7 I&N Dec. 392 (BIA
1957); Matter of C-, 7 I&N Dec. 432 (BIA 1957); Matter of M-, 7 I&N Dec. 251 (BIA 1956); Mirabal-Balon v.
Esperdy, 188 F.Supp. 317 (S.D.N.Y. 1960). A person may be barred even if prostitution is not illegal in his or
her country. 22 CFR §40.24(c). The BIA has held that to “engage in” prostitution, one must have engaged in
a regular pattern of behavior or conduct. See Matter of T-, 6 I&N Dec. 474 (BIA 1955) [a noncitizen who was
twice convicted for acts of prostitution was not excludable]; Matter of R-, 2 I&N Dec. 50 (BIA 1944) [single act
for gain under circumstances demonstrated prostitution]. DOS similarly defines prostitution as “engaging in
promiscuous sexual intercourse for hire.” 22 CFR §40.24(b). Thus, where the statute criminalizes an isolated
act that does not necessarily involved sexual intercourse, the person may not be deemed to have committed
prostitution under the categorical or modified categorical approach. Kepilino v. Gonzales, 454 F.3d 1057 (9th
Cir. 2006) [charge of inadmissibility not upheld because Haw. Rev. Stat. §712-1200 includes conduct broader
than engaging in sexual intercourse and the record did not reveal the acts leading to the conviction]. INA
§212(a)(2)(D)(i) regarding engaging in prostitution does not apply to a “john” or someone who hired a
prostitute, but it may be considered a CIMT. 9 FAM 302.3-6(B)(1) .The Board has also determined that a
single act of soliciting prostitution on one’s own behalf does not fall within the procurement provision of INA
§212(a)(2)(D)(ii). Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008) [disorderly conduct relating to
prostitution, in violation of Cal. Penal Code §647(b), does not fall within INA §212(a)(2)(D)(ii) because it
involves procuring prostitution, which relates to obtaining a prostitute for another not oneself]. But see
Amador-Palomares v. Ashcroft, 382 F.3d 864, 867 (8th Cir. 2004) [a single act of attempting to solicit a
prostitute rendered respondent statutorily ineligible for suspension/good moral character].
6. Significant Traffickers in Persons [INA §212(a)(2)(H), 8 USC §1182(a)(2)(H)]—Any person who commits
or conspires to commit human trafficking offenses in the U.S. or outside the U.S. is inadmissible. A person is
also inadmissible if a consular officer, the Secretaries of DHS or DOS, or the AG knows or has reason to
believe that the person is or has been a knowing aider, abettor, assister, conspirator, or colluder with a
trafficker in severe forms of trafficking. The BIA in another context has equated “reason to believe” with
“probable cause.” Matter of U-H-, 23 I&N Dec. 355, 356 (BIA 2002) [addressing “reasonable ground to
believe” that someone is engaged in terrorist activity].
6.a. Spouse of Children of Traffickers—INA §212(a)(2)(H)(ii); 9 FAM 302.3-8(B)(2). The provision also
includes the spouse, son or daughter of a human trafficker who within the previous 5 years obtained any
financial or other benefit from the illicit activity and knew or should have known that the financial or other
benefit was the product of the activity. However, it does not include a son or daughter who at the time he
or she received a financial benefit was a child.
6.b. A severe form of trafficking in persons as defined by §103 of the Victims of Trafficking and Violence
Protection Act of 2000, includes: (i) inducing another to engage in commercial sex through the use of
force, fraud, or coercion, or inducing a minor to engage in a commercial sex act; and (ii) recruiting,
harboring, transporting, providing or obtaining a person for labor or services through the use of force,
fraud or coercion for the purposes of subjecting that person to involuntary servitude, peonage, debt,
bondage, or slavery. 22 USC §7102(8), 9 FAM 302.3-6(B)(1), 402.6-5(C),
7. Diplomats or Others Involved in Serious Criminal Activity Who Have Been Granted Immunity from
Prosecution [INA §212(a)(2)(E), 8 USC §1182(a)(2)(E); 9 FAM 302.3-7]
7.a. Diplomats who have committed a serious crime as defined in INA §101(h) [any felony, any crime of
violence as defined in 18 USC §16, or reckless driving/driving under the influence involving personal injury
to another], who assert immunity, who depart the U.S., and who have not subsequently submitted fully to
the jurisdiction of the U.S. courts.
7.b. The section as written is not limited to diplomats, but may encompass anyone granted immunity from
prosecution. Page 135
D. Inadmissibility on Moral Grounds
1. Polygamy—Persons coming to the U.S. to practice polygamy are inadmissible. INA §212(a)(10)(A), 8 USC
§1182(a)(10)(A). Matter of G-, 6 I&N Dec. 9 (BIA 1953); 9 FAM 302.12-2 [distinguishing polygamy from
bigamy and distinguishing current practice from advocacy, belief or past practice which are not grounds of
inadmissibility]. Current practice of polygamy means that the applicant will maintain a married relationship
with more than one spouse while in the U.S. If only one spouse is traveling with the applicant, he could only
be found ineligible under this provision if the officer believes the applicant will continue a relationship with the
left-behind spouse. Being legally married to a left-behind spouse but maintaining no active relationship with
that spouse would not be practicing polygamy. 9 FAM 302.12-2(B)(3). The ground of inadmissibility is not
applicable to NIVs. 9 FAM 302.12-2(B)(5). For residency derivative status may not be allowed for multiple
spouses, although the consular officer “may … use discretion in issuing the additional spouse(s) a B-2 visa, if
otherwise eligible and qualified.” Id.
2. Immoral Sex Acts—The former section relating to the exclusion of persons who were coming to the U.S. to
engage in any immoral sexual acts, Matter of B-, 5 I&N Dec. 185 (BIA 1953), has been eliminated.
E. Violation of INA Laws Regarding Entry or Documentation
1. Certain Aliens Previously Removed
1.a. Persons who have been ordered removed through expedited removal or as inadmissible in a removal
proceedings after Apr. 1, 1997, and who seek admission within 5 years (or 20 years if second or
subsequent removal, or at any time if convicted of an aggravated felony) are inadmissible, unless prior
permission has been granted. INA §212(a)(9)(A)(i), 8 USC §1182(a)(9)(A)(i). See 8 CFR §§212.2, 1212.2;
22 CFR §40.91(a); 9 FAM 302.11-2(A)(a), (B).
1.b. Persons who have been ordered removed after a deportation or removal hearing from the U.S.
(including administrative or judicial removals) or who departed while an order of removal was outstanding,
and who seek admission within 10 years (or within 20 years if it is after a second or subsequent removal,
or at any time if person convicted of an aggravated felony) from the date of such physical deportation or
removal are inadmissible, unless the AG has given consent for readmission. INA §212(a)(9)(A)(ii), 8 USC
§1182(a)(9)(A)(ii); 9 FAM 302.11-2(A)(b), (B). This provision applies to persons removed under INA §240,
deported under former INA §242, excluded under former INA §236 and denied admission under the VWP
and ordered removed. Cable, DOS, 98-State-060539 (Apr. 4, 1998) at ¶6, AILA Doc. No. 98040490.
Thus, a person who would have been (before Apr. 1, 1997) previously barred for only one year because of
an order of exclusion or 5 years for an order of deportation is now barred for 10 years. See also in this
chapter ¶ III.E.3 (p.151), infra, for discussion on INA §212(a)(9)(C)(i)(II), which permanently bars (with no
waiver available for 10 years) a person who enters without being admitted or attempts to enter without
being admitted after being ordered removed. For purposes of the “permanent bar” for conviction for an
aggravated felony it does not matter if the person was convicted in the U.S. or abroad.
1.c. INA §212(a)(9)(A) applies only if the person has physically departed the U.S. or been physically
removed subsequent to the issuance of an order. Memo, Crocetti, Assoc. Comm. INS, HQ 5015.12, 96
Act .034 (May 1, 1997), reprinted in 74 No. 18 Interpreter Releases 781, 791–94, 792 (May 12, 1997).
The legislative history supports this view as it interprets the waiver as applying to persons “reapplying for
admission.” H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. at 207. Also the waiver language applies to
persons re-embarking to a place outside the U.S. Nevertheless, the BIA has granted permission to
reapply after the fact (nunc pro tunc), where to do so would resolve the case. See Matter of Ducret, 15
I&N Dec. 620 (BIA 1976); Matter of Garcia Linares, 21 I&N Dec. 254 (BIA 1996).
1.d. Waivers
(1) I-212 Waiver for Reapplication for Admission—A person who is barred from admission under INA
§§212(a)(9)(A)(i) or (ii) may apply for readmission prior to the period of inadmissibility by seeking an I-
212 waiver. For procedures regarding an I-212 waiver, see 8 CFR §§212.2, 1212.2. If filing an I-212 in
conjunction with an I-601 the application is filed at the NVC. However, if a Page 136 person does not
need an I-601, the I-212 should be filed at the USCIS field office with jurisdiction over the place where
the deportation or removal proceeding was held. Q&A;, USCIS-AILA Meeting (Oct. 22, 2015), Q.13
AILA Doc. No. 15110332. The direct-filing addresses can be found on the USCIS site at
http://bit.ly/212addresses. I-212 regulations have been upheld. Valdez-Gaona v. INS, 817 F.2d 1164
(5th Cir. 1987); Estrada-Figueroa v. Nelson, 611 F.Supp. 576 (S.D. Cal. 1985). See also Matter of Li,
15 I&N Dec. 514 (BIA 1975); Matter of Bunag, 13 I&N Dec. 103 (DD 1967). In limited circumstances, a
person may apply for an I-212 waiver in adjustment proceeding or before the IJ. 8 CFR §§212.2(e),
1212.2(e); Lopez-Flores v. DHS, 376 F.3d 793, 795 n.2 (8th Cir. 2004). However, an I-212 waiver may
not be applied to cure INA §212(a)(9)(C)(i)(I) or (II) unless the person has been outside the U.S. for 10
years and applies from outside the U.S. See, e.g., Carrillo de Palacios v. Holder, 708 F.3d 1066, 1073-
74 (9th Cir. 2013) [applicant for AOS who has been in U.S. more than 10 years beyond unlawful
reentry may not apply to waive inadmissibility until she is physically outside U.S. for 10
years].Congress indicated that at least as to persons covered under VAWA of 1994, U and T visas and
battered persons eligible for the special cancellation or suspension, DHS, DOS, and the AG “should
particularly consider exercising their authority” for reapplication for admission. Violence Against
Women Reauth. Act of 2005, PL 109-162. §813(b), 119 Stat. 2960 (Jan. 5, 2006); PL 109-271, 120
Stat. 750 (Aug. 12, 2006).
All I-212 waivers with accompanying I-601 waivers are filed in the U.S. unless: (1) the applicant
resides in Cuba; or (2) the applicant resides in a country where there is an international USCIS office
and the FOD in the office is satisfied that there are “exceptional and compelling circumstances that
require the immediate filing” such as medical emergencies, threats to personal safety, aging out
issues, and adoptions where petitioner has an immediate need to depart. The office can also accept
an I-290B if the applications are denied. Policy Memo, USCIS, PM-602-0062.1, Exceptions for
Permitting the Filing of Form I-601 and Any Associated Form I-212, (Nov. 30, 2012), AILA Doc. No.
12120568; USCIS, Adjudicating I-601 Waivers, AILA Doc. No. 15082741a at 460-61[includes
extensive training manuals and guidelines for USCIS officers].
The district court does have jurisdiction to review a denial of an I-212. Freire v. DHS, 166 F.Supp.3d
224, 229 (D. Conn. 2016) [jurisdiction to review denial of AOS by USCIS and denial I-212 waiver by
AAO but finding both were not an abuse of discretion].
(2) Effect of Reinstatement of Removal—A person inadmissible under INA §212(a)(9)(A) who reenters
may also be precluded from seeking any relief, including an I-212 waiver, in light of reinstatement of
removal under INA §241(a)(5).Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44-46 (2006) [finding that
INA §241(a)(5) retroactively bars relief; but not deciding whether the provision retroactively bars relief
with respect to persons who applied for relief and a waiver before the effective date of IIRIRA (Apr. 1,
1997)]; Warner v. Ashcroft, 381 F.3d 534, 539–40 (6th Cir. 2004)[INA §245(i) “has no effect upon
§241(a)(5)’s preclusion of relief” and therefore no relief is available]; Flores v. Ashcroft, 354 F.3d 727,
730–31 (8th Cir. 2003) [reinstatement provision bars adjustment except in limited circumstances for
persons seeking relief under NACARA or HRIFA]; Padilla v. Ashcroft, 334 F.3d 921 (9th Cir. 2003)
[pending INA §245(i) application does not trump the reinstatement provision that bars relief]. However,
if the proper formalities of reinstating an order of removal under INA §241(a)(5) and 8 CFR §241.8 are
not met, an I-212 waiver may be available even where the applicant had a reinstatement order from a
previous unlawful entry. Matter of ___(AAO Jun. 8, 2015), AILA Doc. No. 15061735 [applicant was
eligible for I-212 waiver even with prior reinstatement order because the order was not reinstated on
his last unlawful entry into the U.S.].
(3) Criteria for Waiver—In Matter of Lee, 17 I&N Dec. 275 (Comm. 1978), legacy INS established criteria
for an I-212 waiver: (a) moral character; (b) recent nature of deportation; (c) need for the applicant’s
services in the U.S.; (d) applicant’s knowledge of (or lack of) deportation order; and (e) length of time
applicant had been in the U.S. See also Matter of Tin, 14 I&N Dec. 371 (RC 1973); AFM at 43.2;
Garay v. INS, 620 F.Supp. 11 (N.D. Cal. 1985) [where alien had re-entered EWI, existence of LPR wife
insufficient to find AG abused his discretion in denying application]; Jaimez-Revolla v. Bell, 598 F.2d
243 (D.C. Cir. 1979) [upholding denial for alien who committed a series of INS violations including
reentry without permission]; But see Matter of ___ (AAO Houston Jan. 28, 2015) Page 137 [equities
acquired after a deportation order is entered are given less weight, but favorable equities outweighed
unfavorable ones]; Matter of ___ (AAO Mar. 20, 2003), reported in 80 No. 32 Interpreter Releases
1165–67 (Aug. 14, 2003) [questioning whether Lee and Tin are still good law in light of various INA
amendments including IIRIRA where persons who violate immigration laws are viewed unfavorably].
But see Matter of ___(AAO July 24, 2008), AILA Doc. No. 08091775 [relying on standards in Tin and
Lee but denying waiver]. See also Matter of ___(AAO Houston Feb. 24, 2015), AILA Doc. No.
15030211 [reversed denial of waiver where person was not charged with 212(a)(6)(C)(i) on last entry
and evidence supported claim that petitioner truthfully answered questions]; Matter of ___(AAO Detroit
Feb. 6, 2012) reported in 17 Bender’s Immigr. Bull. 1205, 1246 (June 1, 2012) [despite past
immigration violations including marriage fraud and extended periods of unlawful presence, I-212
waiver granted for someone seeking to enter on H-1B].If an applicant is granted an I-601 waiver
involving hardship (e.g., 3/10 year bar), the AAO may use those findings as a basis to grant an I-212
waiver. Matter of ___(AAO, Vienna, July 10, 2012), AILA Doc. No. 12071867. The waiver is written as
an exception to INA §§212(a)(9)(A)(i) and (ii). See INA §212(a)(9)(A)(iii), 8 USC §1182(a)(9)(A)(iii);
USCIS, Adjudicating I-601 Waivers, AILA Doc. No. 15082741a [includes extensive training manuals
and guidelines for USCIS officers]; USCIS, Immigrant Waivers: Procedures for Adjudication of Form I-
601 For Overseas Adjudication Officers (Apr. 28, 2009), at 59, AILA Doc. No. 09061772 [discussing
simultaneous filing of I-601 and I-212 and acknowledging that: “Generally, if the Form I-601 is
approved, the Form I-212 filed under INA §212(a)(9)(A)(iii) will also be approved…”]. However, if the
underlying waiver is denied or no waiver is available, then the officer should deny the I-212 as a matter
of discretion. 9 USCIS-PM, Pt. A, Ch. 4 ¶¶B.2–3.
(4) In Absentia Orders—An I-212 waiver is not available to waive the 5 years of inadmissibility for a final
order of removal for a person who has been removed due to inadmissibility or deportability because of
an in absentia order. INA §212(a)(6)(B), 8 USC §1182(a)(6)(B) [“Any alien who without reasonable
cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s
inadmissibility or deportability and who seeks admission to the United States within 5 years of such
alien’s subsequent departure or removal is inadmissible”]. However, the consular officer may
determine that there was “reasonable cause” for failing to appear. 9 FAM 302.9-3(B)(2).
(5) Otherwise Inadmissible Without Waiver—USCIS has denied an I-212 waiver where the applicant is
otherwise inadmissible on other grounds, and there is no waiver for that inadmissibility. Matter of ___,
AAO San Diego Mar. 20, 2013), reported in 18 Bender’s Immigr. Bull. 1451, 1475 (Dec. 15, 2013) [I-
212 waiver denied where applicant was permanently inadmissible without a waiver because of a false
claim to USC].
2. Persons Unlawfully Present in the U.S.
INA §212(a)(9)(B), 8 USC §1182(a)(9)(B); AFM 40.9; 22 CFR §40.92; 9 FAM 302.11-3; USCIS, Immigrant
Waivers: Procedures for Adjudication of Form I-601 For Overseas Adjudication Officers (Apr. 28, 2009), at
39–47, AILA Doc. No. 09061772 ; Memo, Neufeld, Scialabba, Chang, USCIS, “Consolidation of Guidance
Concerning Unlawful Presence,” (May 6, 2009), AILA Doc. No. 09051468 [major consolidation of
interpretations and withdrawal of prior memos].
2.a. Three-Year Bar—Beginning Apr. 1, 1997, a person who is unlawfully present in the U.S. for a period of
more than 180 consecutive days but less than one year, who voluntarily departs the U.S. before
commencement of proceedings, is barred from readmission for 3 years from the date of the person’s
departure or removal. INA §212(a)(9)(B)(i)(I). Thus, persons who depart after the commencement or at
the conclusion of proceedings (e.g., issuance of an I-862) are not subject to the 3-year bar. If a person is
granted voluntary departure (VD) after proceedings are initiated s/he is not subject to 3-year bar. AFM at
40.9.2(a)(4)(C). Cable, DOS, 98-State-060539 at ¶¶ 17–19 (Apr. 4, 1998), AILA Doc. No. 98040490. The
distinction that allows persons to escape the 3-year bar (but not the 10-year bar) if they are granted VD
after proceedings has been upheld. Cervantes-Ascencio v. INS, 326 F.3d 83, 85–86 (2d Cir. 2003) [statute
making exception is clear on its face and agency interpretation of statute is reasonable under Chevron].
2.b. Ten-Year Bar—Beginning Apr. 1, 1997, a person who has been unlawfully present in the U.S. for one
year or more consecutively and again seeks admission is barred for 10 years from the date of Page 138
such person’s departure or removal from the U.S. INA §212(a)(9)(B)(i)(II), 8 USC §1182(a)(9)(B)(i)(II). In
order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th
Cong. 2d Sess. at 207. DHS has adopted this position, because the bar only applies when someone is
seeking admission which by definition must be from outside the U.S. Memo, Crocetti (May 1, 1997),
supra. AFM 40.9.2(a)(5). See also Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006) [departure triggers bar
because purpose of statute is to punish recidivists; IJ erred in determining that 10-year provision bars
AOS even if person had not departed]. However, the departure need not be under a removal order or
grant of VD to trigger the bar, and unlike the 3-year bar, a person is subject to the 10-year bar whether or
not she departs during or after proceedings. Matter of Lemus-Losa, 24 I&N Dec. 373, 376–77 (BIA 2007).
Under one theory, the bar does not apply to AOS because admission is expressly defined in the statute as
a lawful entry and traditionally AOS has not been considered a new entry. But see Matter of Rodarte,
supra at 908[statute applies to AOS because AOS is an admission and statute applies to admission].
2.c. Counting the 6 Months and One Year; Unlawful Presence is Not Counted in the Aggregate—Departure
before 180 days/one year breaks unlawful presence and reentry starts the time period anew. The 6-month
and one-year periods for the 3/10 year bar must only accrue during any single stay. The time of unlawful
presence is not in the aggregate. A person who departs after 179 days of unlawful presence is not subject
to the 3-year bar even if he reenters and has additional unlawful time as long as the second unlawful
presence does not exceed 180 days.
2.d. Counting the 3/10 Years—Once a person has triggered the 3/10 year bar, the 3/10 years continue to run
where the person departs and is paroled back into the U.S. or lawfully admitted on a visa in conjunction
with a INA §212(d)(3)(A) waiver that waives the 3/10 year bar. Because a parole does not trigger
inadmissibility, the 3/10 years continue to run. AFM at 40.9.2(a)(4)(E). Thus, a person who is subject to
the 3-year bar and returns after one month on a parole that lasts for 2 years and 10 months only has one
more month before the 3-year bar is at an end. Similarly, a person who triggers the 3/10 year bar as a B-2
overstay and returns to his or her home and obtains an E-2 visa with a §212(d)(3)(A) waiver would, upon
return for 3/10 years, end the ground of inadmissibility. Letter, Divine, GC USCIS to Berry (July 14, 2006),
AILA Doc. No. 08082930 and Letter, Melmed, GC, USCIS to Horne (Jan. 26, 2006), AILA Doc. No.
09012874. Post Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012) [travelling on advance
parole does not constitute a departure triggering the 3/10 year bar] a person returning on an advance
parole and remaining in U.S. for requisite period would be eligible to AOS. Matter of ___, St. Paul, Minn.
(AAO Oct. 26, 2012), AILA Doc. No. 12102242[denial of AOS reversed where person re-entered on
advance parole and therefore eligible to adjust]. However, if the person reenters EWI the three years do
not run and s/he is unauthorized and barred even after the 3 years. Notwithstanding the triggering of the
3/10 year bar, an applicant may make an argument that simply remaining in the U.S. for 3/10 years would
satisfy the 3/10 year bar because unlike sections such as INA §212(a)(9)(A),(C) there is no language that
suggests departure from the U.S. is required to satisfy the 3/10 years.
2.e. Unlawful Presence Defined
(1) Generally—A person is unlawfully present if he or she is present in the U.S. “after the expiration of
the period of stay authorized by the Secretary of DHS or is present in the United States without being
admitted or paroled.” INA §212(a)(9)(B)(ii), 8 USC §1182(a)(9)(B)(ii); 9 FAM 302.11-3(B)(1). However,
no period of unlawful presence that accrued before Apr. 1, 1997, may be considered. Matter of
Rodarte, supra at 905. At least one court has distinguished unlawful presence from exceptions that bar
counting time toward the 3/10 year provisions. Equal Access Educ. v. Merten, 325 F.Supp.2d 655,
662–67 (E.D. Va. 2004) [although exceptions due to asylum or minor status may stop the running of
time not authorized by AG, the minor is still unlawfully present when he entered on a B2 and remained
after I-94 expired].
(2) Unlawful Status Distinguished—AFM at 40.9.2(a)(2). Unlawful status relates to whether the person
has violated the terms of the status provided to him and is therefore out-of-status. Unlawful presence
generally relates to a person staying beyond the time period given to him by DHS upon entry or in the
course of a change/extension of status unless DHS authorizes the stay. Examples:
A student who engages in unauthorized employment is in unlawful status because he violated

the terms of his F-1. However, he was given duration of status upon entry, and Page 139
therefore has not gone beyond the time given to him by DHS. He, therefore, has not accrued
unlawful presence unless DHS, IJ, or the BIA makes a formal finding of a status violation “in
which case unlawful presence will only begin to accrue as of the date of the formal finding.” 9
FAM 302.9-14(B)(1)(b)(2).
An H-1B who was given one year upon entry but stops working after 6 months is out-of-status
(in unlawful status) after 6 months, but her unlawful presence does not begin to accrue until she
has been in the U.S. for one year, because her I-94 granted her one year on entry.
An applicant for AOS who files the AOS application a week before his B-2 status expires does
not accrue unlawful presence during the time the AOS is pending. However, a week after he
files the application he is technically in an unlawful status (because his B-2 stay has now
expired) and he is subject to removal.
(3) Determining Authorized Periods of Stay—The determination of when a period of stay is authorized by
DHS has become the subject of the following interpretations by USCIS:
(a) EWI—All time in EWI status (which includes being present without permission or parole) is
unauthorized. AFM at 40.9.2(b)(1)
(b) Voluntary Departure—Is considered a period of stay authorized by the AG regardless of whether it
is granted by USCIS prior to the commencement of proceedings, or by an IJ at the end of
proceedings, or by the BIA after an appeal. However, if VD is reinstated by the BIA or the IJ in a
removal proceeding that has been reopened “the time from the expiration of the grant of voluntary
departure to the grant of reinstatement is not considered authorized stay,” although the reinstated
period itself is considered authorized stay. If the party granted VD fails to depart, unlawful presence
accrues as of the date VD expired. AFM at 40.9.2(b)(3)(H). A person who is granted VD after
commencement of proceeding is not subject to the 3-year bar because of the language of §212(a)
(9)(B)(i)(I), but if he was unlawfully present for more than one year, he would be subject to the 10-
year bar. AFM at 40.9.2(a)(4)(C). If a denial of VD is reversed on appeal, the time from denial to
reversal will be considered authorized time in U.S.
(c) Nonimmigrants—Unauthorized stay only includes periods of stay beyond the date specified on the
I-94 or the I-797 (where an extension has been granted). It does not include acts (e.g., criminal
conduct or working without authorization) that might otherwise render someone subject to removal.
It does not include persons with D/S (e.g., A, F, G, M, J), until there is a determination by DHS or
the IJ that they are no longer in status. AFM 40.9.2(a)(2). For a discussion on tolling of unlawful
presence for nonimmigrants seeking a C/S or E/S, see in this section ¶ 2.g (p.143), infra.
(d) Duration of Status (D/S)—Although previously an F or J or M in D/S was not considered to be in

an unauthorized stay until an IJ or USCIS made a determination regarding his or her status, USCIS
has proposed a change in that policy beginning Aug. 9, 2018 that provides for unlawful presence if
an F, J or M also fails to maintain status. Policy Memo, USCIS, PM-602-1060, Accrual of Unlawful
Presence and F, J, and M Nonimmigrants (May 10, 2018), AILA Doc. No. 18051139; AFM 40.9.2(b)
(1)(E)(iii). This may occur (a) the day after F, J or M no longer pursues a course of study or
authorized activity, or engages in an unauthorized activity; (b) the day after completing a course of
study (but after authorized PT and grace periods); (c) day after I-94 expires if admitted for a date
certain; (d) the day after an IJ or BIA orders the person excluded, deported or removed (whether or
not the decision is appealed); or (e) the person files a C/S or E/S and it is denied. Unlawful
presence accrues from the date of the IJ decision (not the final order), or from the date the USCIS
benefit is denied (e.g., C/S or E/S) unless it was frivolous or untimely. AFM at 40.9.2(b)(1)(D)(ii),(iii);
9 FAM 302.9-14(B)(1)(b)(2), (B)(1)(d). See U.S. v. Rehaif, 888 F.3d 1138 (11th Cir. 2018) [in a
criminal case involving possession of a firearm by a person illegally or unlawfully in the U.S. the
court, relying on 8 CFR §214.2(f)(5)(i) and 27 CFR §478.11 found that an F-1 student who was told
his status was terminated by his school (and not by IJ/USCIS) was out-of-status and illegally in the
U.S. when he failed to depart or seek reinstatement and was therefore illegally in the U.S. for
purposes of 18 USC §922(g)(5)(A) because it read INA §212(a)(9)(B)(ii) Page 140 as placing a
student in “unlawful presence” simply “if he remains in the United States after he is no longer
enrolled as a full time student” even if he had D/S].
(e) Canadians at the Border—Canadians inspected at the border but not given an I-94 are treated as
D/S, similar to Fs and Js by USCIS. AFM at 40.9.2(b)(1)(E)(iii) [NIVs who are not issued I-94s are
treated as D/S]; Advisory Opinion, DOS, “INA §212(a)(9)(B) & Canadians” [undated], reprinted in
76 No. 41 Interpreter Releases 1552–53 (Oct. 25, 1999). However, CBP has issued a policy to the
field that Canadians who stay in the U.S. more than 6 months are accruing unlawful presence.
Letter, Davis, Acting Ex. Director, CBP to AILA (Apr. 10, 2013), AILA Doc. No. 13041059; Liaison
Minutes, AILA-CBP (Apr. 11, 2013) at 4-5, AILA Doc. No. 13051655; Liaison Minutes, AILA-CBP
(Oct. 28, 2013) at 6, AILA Doc. No. 13110447. They continue to maintain that position. Minutes,
AILA-CBP Liaison Committee (Nov. 4, 2016), at p.8-9, AILA Doc. No. 17010304 [unlawful presence
begins to accrue on day 181 after entry].
(f) In Proceedings—Removal proceedings have no impact on whether an individual is accruing

unlawful presence. AFM at 40.9.2(b)(1)(E)(i) [citing 8 CFR §239.3]. If an IJ makes a determination
of NIV violation, unlawful presence begins to accrue the day after the IJ’s order or the day after the
I-94 expired, whichever is earlier. Accrual of unlawful presence neither begins on the date that a
status violation occurs, nor the date on which removal proceedings are initiated. The filing of a
Notice to Appear (NTA) has no effect on determining periods of unlawful presence. 8 CFR §239.3.
For example, assume a person who is in lawful H-1B status until Jan. 5, 2011 is put in proceeding
in Dec. 2010; however, he does not have his final hearing until Mar. 5, 2011. He accrues unlawful
presence from Jan. 5, 2011 to Mar. 5, 2011. AFM at 40.9.2(b)(5), Example 9 [citing Matter of Halabi,
15 I&N Dec. 105 (BIA 1974) as authority]. Filing an appeal to the BIA or the federal court also does
not affect the applicant’s position in regard to whether he accrues unlawful presence as the filing of
either is not considered a period authorized by DHS.
(g) Conditional Permanent Resident (CR)—Time accrues from date CR fails to timely file I-751
(marriage) or I-829 (investor). If late filing is accepted by DHS or IJ, the CR’s status is restored and
is not considered to have accrued unlawful presence. If it is not accepted, time accrues from date
CR status expired. If DHS seeks to revoke CR status, unlawful presence does not begin to run until
the date DHS successfully terminates status. If DHS denies the I-829/I-751 and terminates status
under 8 CFR §216.3(a) unlawful presence accrues from date of termination. AFM at 40.9.2(b)(1)
(C); Cable, DOS, No. 98-State-060539 at ¶28 (Apr. 4, 1998), AILA Doc. No. 98040490.
(h) Temporary Residents—Time accrues only if USCIS advises the temporary resident under
legalization of its intent to terminate his status and a notice of termination is issued, unless
appealed. AFM at 40.9.2(b)(1)(B).
(i) Legalization/SAW/LIFE Applicants—Unlawful presence does not accrue while a properly filed
application is pending, including while on appeal to the AAO.
(j) Adjustment of Status—Properly filed affirmative §245(a)/§245(i) AOS applications and registry
applications under §249 toll unauthorized time and are considered to be a period of stay authorized
by the AG. The period of authorized stay continues during the period in which the application is
denied and renewed in removal proceedings, through BIA review. Unlawful presence that accrued
prior to the filing of AOS or registry counts toward the 180-day/one-year periods. AFM at 40.9.2(b)
(3)(A); Memo, Bach, Ex. Assoc. Comm. Off. Policy and Programs (HQ 70/23.1-P, HQ 70/8-P) (Apr.
14, 1999), reprinted in 76 No. 16 Interpreter Releases 621, 652–58 (Apr. 26, 1999). Unlawful
presence also continues to accrue if the AOS or registry was first filed after an NTA was issued and
served on the applicant. AFM 40.9(b)(5)(A) Example 7.
(k) Asylees and Refugees—Person admitted as a refugee is in status authorized by the AG

until/unless refugee status is terminated. If derivative of refugee, authorized stay begins when she
enters from abroad or, if in the U.S., files a bona fide I-730. The filing Page 141 of the I-730 stops
the accrual of unlawful presence but does not eliminate prior unlawful presence. For asylum
applicants, the period of unauthorized stay tolls on the date of filing a bona fide asylum application.
If asylum is terminated unlawful presence begins to accrue from that date. A derivative included in
the application or a subsequently filed I-730 does not accrue unlawful presence from the date of
filing. AFM at 40.9.2(b)(1)(F)(i), (ii). A grant of asylum does not eliminate any prior periods of
unlawful presence. Therefore, an asylee who accrued more than 180 days before filing a bona fide
asylum application may trigger the bar if she departs on a refugee travel document. Although she
can reenter as an asylee, she may later be ineligible for AOS without a waiver. AFM at 40.9.2(a)(6)
(C). Traveling on advance parole will not trigger the bars for pending adjustment applications.
Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012); Memo, Johnson, Sec. DHS, Directive
to Provide Consistency Regarding Advance Parole, (Nov. 20, 2014), AILA Doc. No. 14112014
[directing DHS counsel to issue legal guidance that “in all cases” when a person departs on
advance parole she “shall not have made a ‘departure’ within the meaning of section 212(a)(9)(B)(i)
of the INA”].
(l) Withholding of Removal under §241(b)(3) and Deferral under CAT—Only a grant of withholding or
deferral tolls unlawful presence. AFM at 40.9.2(b)(3)(K)-(L).
(m) TPS and DED—The period of authorized stay begins on the date a prima facie temporary
protected status (TPS) application is filed. If TPS is granted, person is deemed to be in lawful NIV
status; but a grant does not cure prior unlawful presence for purposes of travel or AOS. But travel
on an advance parole will not trigger the 3/10 year bar. Matter of Arrabally & Yerrabelly, 25 I&N
Dec. 771 (BIA 2012); Memo, Johnson, Sec. DHS, Directive to Provide Consistency Regarding
Advance Parole, (Nov. 20, 2014), AILA Doc. No. 14112014 [directing DHS counsel to issue legal
guidance that “in all cases” when a person departs on advance parole she “shall not have made a
‘departure’ within the meaning of section 212(a)(9)(B)(i) of the INA”]; INA §244(f). But see AFM at
40.9.2(b)(1)(F)(iii). Deferred enforced departure (DED) authorized stay only begins on the date of
the Executive Order or other Presidential directive and ends when it is no longer in effect. AFM at
40.9.2(b)(3)(M).
(n) HRIFA/NACARA and Cuban-Haitian Entrants—Properly filed affirmative Cuban-Haitian Entrant

applications and NACARA/HRIFA applications, whether filed affirmatively or defensively before the
IJ, toll the accrual of unlawful presence. AFM at 40.9.2(b)(3)(A). For definition of Cuban-Haitian
Entrant see discussion in “Public Benefits,” Chapter 6, ¶ XIII.K.3 (p.1420), infra.
(o) Stay of Removal—A person granted a stay of removal does not accrue unlawful presence. A
person granted a stay pursuant to a motion to rescind an in absentia order also does not accrue
unlawful presence including any BIA or federal appeal. AFM at 40.9.2(b)(3)(I).
(p) Deferred Action/DACA—The time a person is granted the status of deferred action is considered a
time authorized by the AG. It covers only the period during which deferred action is in effect, and
does not erase unlawful presence accrued before the grant. AFM at 40.9.2(b)(3)(J). DACA
recipients are also not considered to be in an unlawful presence during the time they have the
status. During the time an applicant is granted deferred action, he does not accrue unlawful
presence. But unlawful presence accrues during the time a DACA application is pending and for
any time of unlawful presence that accrued before the grant or after its expiration, if the applicant
was 18 or older. USCIS, Consideration for Deferred Action for Childhood Arrival Process (Aug. 31,
2012), AILA Doc. No. 12080365 at 2-3 (updated Apr. 10. 2014); See also FAQs, Consideration for
Deferred Action for Childhood Arrival Process (from USCIS Website, June 15, 2015), AILA Doc.
No. 12080365.
(q) Visa Waiver Satisfactory Departure—A VWP who obtains a grant of satisfactory departure under 8
CFR §217.3(a) and who leaves before the satisfactory departure period expires is deemed to be in
lawful presence. AFM at 40.9.2(b)(3)(N). Page 142
(r) Order of Supervision—Is not considered a time authorized by the AG. AFM at 40.9.2(b)(6); 8 CFR
§241.5.
(s) Advance Parole—If adjustment applicant had 180 days/one year of unauthorized stay in U.S.
before filing AOS, her departure on an advance parole will not trigger the 3/10 year bar. Matter of
Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012) [travelling on advance parole does not
constitute a departure triggering the 3/10 year bar]; Memo, Johnson, Sec. DHS, Directive to
Provide Consistency Regarding Advance Parole, (Nov. 20, 2014), AILA Doc. No. 14112014
[directing DHS counsel to issue legal guidance that “in all cases” when a person departs on
advance parole she “shall not have made a ‘departure’ within the meaning of section 212(a)(9)(B)(i)
of the INA”]. And because the person is returning on parole he or she would be eligible to AOS.
Matter of ___, St. Paul, Minn. (AAO Oct. 26, 2012), AILA Doc. No. 12102242[denial of AOS
reversed where person re-entered on advance parole and therefore eligible to adjust]. See also
Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353, 1357 (11th Cir. 2013) [reversed IJ finding of
inadmissibility under INA §212(a)(9)(B)(i)(II) based upon Arrabally]. But see Cheruku v. U.S. Att’y
Gen., 662 F.3d 198 (3d Cir. 2011) [affirming, pre-Arrabally & Yerrabelly, unpublished BIA decisions
that advance parole was a departure triggering the 3/10 year bar].
(t) Parole—Persons who are paroled into the U.S. pursuant to INA §212(d)(5)(A) are considered
authorized by DHS and do not accrue unlawful presence so long as they do not violate the terms of
their parole and it is not revoked. The specific type or reasons for granting the parole is irrelevant. A
person paroled for the purpose of removal proceedings will begin to accrue unlawful presence the
day after the date the removal order becomes administratively final. AFM at 40.9.2(b)(1)(G).
Conditional release/parole under INA §236, however, is not considered a parole and thus unlawful
presence continues to accrue. AFM at 40.9.2(a)(3)(D). If the person triggered the 3/10 year bar by
leaving and then re-entered on a parole, the 3/10 years would continue to run while he was on
parole in the U.S. allowing the person to end his inadmissibility after the 3/10 year period. Letter,
Divine, GC USCIS to Berry (July 14, 2006) and Letter, Melmed, GC, USCIS to Horne (Jan. 26,
2006), AILA Doc. No. 09012874. See e.g., Matter of ___(AAO Jan. 22, 2008), reprinted in 86 No. 3
Interpreter Releases 237 (Jan. 16, 2009) [adjustment applicant who left the U.S. on an advance
parole triggered the three year bar, but he returned on parole and remained in U.S. for more than 3
years allowing him to be eligible for AOS without a waiver because an application for adjustment is
a “continuing” application].
(u) Suspension and Cancellation—A person granted suspension of deportation or cancellation of

removal is in a status authorized by DHS and the grant removes prior unlawful presence. AFM at
40.9.2(b)(1)(D). A person who is a conditional suspension or cancellation grantee is also in a status
authorized by the AG. General Counsel Liaison Meeting with AILA, AILA Doc. No. 99122271.
(v) CSPA—A derivative beneficiary child who is in a period of stay authorized because of a pending
application or petition does not accrue unlawful presence merely because of her “aging-out” if the
requirement of the CSPA are met. AFM at 40.9.2(a)(9)(B).
2.f. Exceptions [INA §212(a)(9)(B)(iii), 8 USC §1182(a)(9)(B)(iii); AFM at 40.9.2(b)(2)]—The following

exceptions to the unlawful presence statute apply:
(1) Minors—No time period while under age 18 is taken into account. 9 FAM 302.9-14(B)(4)(a).
(2) Bona Fide Asylum Applicants (unless the applicant worked without authorization)—The denial or
abandonment of an asylum claim is not determinative of whether it was bona fide. AFM at 40.9.2(b)(2)
(B); Memo, Cooper, G.C. (HQPGM 70/6.2.6) (June 8, 1999), reprinted in 76 No. 33 Interpreter
Releases 1289, 1304–10 (Aug. 30, 1999).Includes all periods of time from initial affirmative filing
through IJ hearing, BIA appeal and federal appeals. However, if applicant worked without
authorization, even if for only one day, unlawful presence begins accruing from that day forward. 9
FAM 302.9-14(B)(3)(c). A dependent included in the Page 143 application is in a period of stay
authorized unless: (1) she engages in unauthorized employment; (2) there is a determination that the
application was not bona fide or the principal worked without authorization; (3) the principal notifies
USCIS that the dependent is no longer a part of the application; or (4) USCIS determines the
dependent relationship no longer exists (through divorce or dependent is no longer a child). If the
dependent is not included in the application but a bona fide I-730 is filed on her behalf, unlawful
presence stops when the I-730 is filed. Because the filing of the I-730 does not cure any past unlawful
presence traveling abroad on an advance parole may trigger the 3/10 year bar. AFM at 40.9.2(b)(2)(C)
(3) Family Unity—No unlawful presence during period in which a person is a beneficiary of family unity
protection under IMMACT90 §301(b)(1)(B)(iii)(III). If the I-817 is approved, the accrual of unlawful
presence is retroactive to the date of filing. However, if the application is denied unlawful presence
continues to accrue as if no I-817 had been filed. This section applies both to Family Unity under 1990
Act as well as under the LIFE Act. AFM at 40.9.2(b)(2)(D).
(4) Battered Women and Children—VAWA self-petitioner and his or her children can claim an exception
to inadmissibility if there is a relationship among the abuse suffered, the unlawful presence and his or
her departure from the U.S. AFM at 40.9.2(b)(2)(E). Those who “first arrived” in the U.S. before Apr. 1,
1997, are not required to show the domestic violence relationship. IIRIRA §301(c)(2).
(5) Victims of Severe Form of Trafficking—The provision does not apply if a severe form of trafficking as
defined in 22 USC §7102 (the use of force, fraud, or coercion for sex trafficking and/or involuntary
servitude, peonage, debt bondage, or slavery) was at least one central reason for the person’s
unlawful presence. If not granted, the applicant may apply for a discretionary waiver of the ground of
inadmissibility on an I-192 as an NIV, or an I-601 in an AOS.
(6) U Status—No unlawful presence accrues where a person in U status is granted deferred action or
parole while she is placed on a waiting list because the 10,000 cap per year has been reached. 8 CFR
§214.14(d)(3).
(7) Burden of Proof—The burden is on the applicant to prove the exception. Cable, DOS, No. 98-State-
060539 at ¶26 (Apr. 4, 1998), AILA Doc. No. 98040490.
2.g. Tolling for Good Cause [INA §212(a)(9)(B)(iv), 8 USC §1182(a)(9)(B)(iv)]
(1) In general—Unlawful presence in regard to the 3-year bar is tolled for 120 days if the person has
been lawfully admitted or paroled, has filed a nonfrivolous C/S or E/S before the date of expiration of
the period of stay authorized by USCIS, has not been employed without authorization before or during
the pendency of the application, and was in status at all times prior to filing. Although tolling does not
apply to the 10-year bar statutorily, USCIS, by policy, has applied tolling to the 10-year bar as well.
AFM at 40.9.2(b)(2)(G). And although the legislative history indicates that the application must be
approved to toll, nothing in the statute indicates that it is a requirement, H.R. Conf. Rep. 104-828,
104th Cong., 2d Sess. at 207, and USCIS has interpreted it to apply when applications are filed, even
if not subsequently approved. AFM at 40.9.2(b)(3)(D)(iv).
In light of the long delays at USCIS, NIVs seeking an E/S or C/S will be considered in authorized
period of stay until their applications are decided (even beyond 120 days), so long as they did not work
without authorization, did not file untimely or frivolous applications, and did not fail to maintain their
status prior to filing the application. AFM at 40.9.2(b)(3)(B); Cable, DOS, No. 00-State-102274 (May
30, 2000), AILA Doc. No. 00060202. If the application is approved, no unlawful presence accrues. If
the application is denied, unlawful presence accrues from the original I-94 expiration date if the
application is denied as frivolous, untimely, or because the applicant engaged in unlawful employment.
If it was denied for any other reason, unlawful presence only accrues from the date of the denial. AFM
at 40.9.2(b)(2)(G), (b)(3)(D)(iv). But see AFM at 40.9.2(b)(1)(E) [suggesting that if a person violates his
status during the request for an immigration benefit, unlawful presence begins to accrue from the
earlier of the I-94 expiration or the denial of the c/s or Page 144 e/s]. The Supreme Court, in another
context, has defined frivolous as lacking “an arguable basis either in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325-27 (1989) [factual allegations are “clearly baseless” and legal theories “indisputably
meritless”].
(2) Bridging Not Permitted—Where a second, untimely application for E/S or C/S is submitted while a
timely C/S or E/S is pending, unlawful presence will accrue from the date the first (timely) C/S or E/S is
denied. AFM at 40.9.2(b)(3)(D)(vii) For example, a person whose B-2 status expires April 1 files an E/S
on March 29. She then files, on April 15, a C/S to F-1. On May 30, her (timely) E/S is denied. Unlawful
presence accrues from May 30 even if her Apr. 15 C/S to F-1 is denied on June 30.
(3) Motions to Reopen/Reconsider—The filing of a motion to reopen or reconsider does not stop the
accrual of unlawful presence. If the motion and the benefit is granted, the grant is retroactive and the
NIV will not have any unlawful presence. If the motion is granted but the benefit is denied, unlawful
presence will accrue from the date of the denial, as long as the denial was not based on a frivolous or
untimely filing. AFM at 40.9.2(b)(3)(D)(v).
(4) Appeals—An appeal to the AAO of a denial of C/S or E/S does not toll unlawful presence; unlawful
presence continues to run from the date of the denial. AFM at 40.9.2(b)(3)(D)(vi). For example, a
person whose L-1 C/S or E/S is denied, and who appeals to the AAO, accrues unlawful presence
during the entire appeal, unless his appeal is ultimately successful.
(5) Effect of Departure—If an NIV with a pending request for E/S or C/S departs the U.S. while the
application is pending it does not subject the NIV to the 3/10 year or permanent bar even if the I-94
has expired unless the application was frivolous, untimely, or the individual had worked without
authorization. Similarly a D/S nonimmigrant who departs while a E/S or C/S is pending does not trigger
the bars. AFM at 40.9.2(b)(3)(C). When the applicant departs and seeks a visa abroad he must
provide to the satisfaction of the consular officer that the application was timely and nonfrivolous. The
consular officer need not determine that the application would have been approved in order to grant
the visa. 9 FAM 302.9-14(B)(5)(c).
2.h. Embassy Investigation—Consular officers “should not routinely undertake in-depth questioning of
applicants concerning possible ineligibility under 9B unless … in the normal course of processing a
particular visa application, the possibility of a previous period of unlawful presence becomes apparent
through otherwise routinely available information.” Cable, DOS (Apr. 4, 1998), supra.
2.i. Agency Reporting—Under IIRIRA §404 federal agencies must report to DHS 4 times a year, any person
the agency “knows” is not lawfully present. A joint notice has been submitted by HHS, HUD, SSA, and
DOL that defines agency knowledge of unlawful presence as: “when the unlawful presence is a finding of
fact or conclusion of law that is made by the [agency] as part of a formal determination that is subject to
administrative review on an alien’s claim for any of the statutorily specified programs.” The conclusion
must be supported by EOIR or DHS; a negative hit on the SAVE program is insufficient. 65 FR 58301
(Sept. 28, 2000).
2.j. INA §245(i) Eligibility—The court reversed Matter of Lemus-Losa, 24 I&N Dec. 373 (BIA 2007) inLemus-
Losa v. Holder, 576 F.3d 752 (7th Cir. 2009), and found that although Matter of Briones precludes a
person inadmissible under §212(a)(9)(C)(i) (“the permanent bar”) from relying on §245(i), the 10-year bar
under (9)(B) is different and §245(i) may be used]. The BIA, however, has reaffirmed its decision that
absent a waiver a person subject to the 10-year bar is ineligible for 245(i) notwithstanding the Seventh
Circuit. Matter of Lemus-Losa, 25 I&N Dec. 734 (BIA 2012). See also Cheruku v. U.S. Att’y Gen., 662 F.3d
198 (3d Cir. 2011) [agreeing with first Lemus decision on Chevron grounds that 245(i) does not waive the
10-year bar]; Herrera-Castillo v. Holder, 573 F.3d 1004 (10th Cir. 2009) [same]. But see Matter of Arrabally
& Yerrabelly, 25 I&N Dec. 771, 779 n.6 (BIA 2012) [modifying the inadmissibility in the context of advance
parole and determining that travelling on advance parole does not constitute a departure triggering the
3/10 year bar; also noting that Brand X permits the BIA to “revisit[ ] that issue” because Cheruku v. U.S.
Att’y Gen., 662 F.3d 198 (3d Cir. 2011), reaching a different conclusion, was based on deference to prior
unpublished decisions of the BIA]; Matter of ___(AAO St. Paul, Minn. Oct. 26, 2012), AILA Doc. No.
12102242[denial of AOS reversed where person re-entered on advance parole and therefore eligible to
adjust]. See also Memo, Johnson, Secy. DHS, Directive to Provide Consistency Regarding Advance
Parole, (Nov. 20, 2014), AILA Doc. No. 14112014 Page 145 [directing DHS counsel to issue legal
guidance that “in all cases” when a person departs on advance parole she “shall not have made a
‘departure’ within the meaning of section 212(a)(9)(B)(i) of the INA”].
2.k. Waivers [INA §212(a)(9)(B)(v), 8 USC §1182(a)(9)(B)(v)]
(1) Evidentiary Standard—If the person is an immigrant and is the spouse or son or daughter of a USC or
LPR (but not the parent) and he or she can show extreme hardship to the spouse or parent (but not his
or her child), inadmissibility can be waived. For a detailed discussion of extreme hardship, see 9
USCIS-PM, Pt. B and Chapter 8, Part III (p.1633), infra.; Same-sex marriage recognized. Matter of
Zeleniak, 26 I&N Dec. 158, 159 (BIA 2013). The AAO has recognized that the factors that may be
considered in determining extreme hardship are those listed in Matter of Cervantes-Gonzalez, 22 I&N
Dec. 560, 565–66 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001), in
another context. They include, but are not limited to: (1) presence of LPR/USC family ties in the U.S.;
(2) the qualifying USC/LPR’s family ties outside the U.S.; (3) conditions in the country of relocation and
qualifying relatives ties there; (4) the financial impact of departure; and (5) significant health conditions
particularly when tied to unavailability of suitable medical care in the country of relocation. Matter of
___(AAO May 1, 2009), AILA Doc. No. 09051171 [granting waiver where qualifying USC had mental
health issues documented by tests and clinical observation, as well as financial hardship as a single
mother]; Matter of ___ (NSC July 18, 2014), AILA Doc. No. 14082061[numerous physical and mental
health issues suffered by USC spouse and children and applicant is citizen of Nicaragua a TPS
country]. USCIS considers the death of a USC or LPR petitioner “to be the functional equivalent of
extreme hardship” for the surviving relative of a deceased petitioner who meets the requirements of
INA §204(l) where the extreme hardship being claimed by the surviving beneficiary would have been
on account of extreme hardship to the USC or LPR petitioner if he or she had survived. 77 FR 19902,
19909 and n.8 (Apr. 2, 2012). The petition however must first be reinstated by USCIS pursuant to
204(l). USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 59, AILA Doc. No. 15082741a.
Although hardship to child may not be considered directly because statute provides for hardship to
spouse/parents only, the child’s condition is considered as hardship to the USC/LPR spouse. U.S. v.
Aguilar, 133 F.Supp.3d 468 (E.D.N.Y. 2015) (Weinstein, J.) [in sentencing context, excellent discussion
of family separation, especially effect on children of parent’s deportation]; Matter of ___(AAO NSC July
18, 2014), AILA Doc. No. 14082061[children have mental health issues that are exacerbated by
applicant’s absence which affects USC spouse whose psychological, physical and financial hardships
are considered in aggregate along with fact that applicant’s spouse could not go to a TPS country
Nicaragua the second poorest country in Western Hemisphere]; Matter of ___(AAO Ciudad Juarez
Oct. 30, 2009), 15 Bender’s Immigr. Bull. 1141, 1163 (Aug. 15, 2010) [son’s diagnoses including
autism, PTSD, oppositional defiant disorder and ADHD requiring specialized medical care was a
substantial factor in hardship to parent]; Matter of ___(AAO Athens, Greece Jan 9, 2008), AILA Doc.
No. 14051652 [discussion of son’s asthma requiring medical attention as putting additional extreme
stress on applicant’s USC spouse]. So too is the hardship to the USC spouse’s elderly parent. Matter
of E-A-O-, ID # 13396 (AAO, Denver, May 25, 2016) [81-year-old ill mother of USC spouse who lives
with applicant and spouse].
Hardship is considered cumulatively and under the totality of the circumstances test.Matter of X-
(Detroit AAO May 7, 2014), reported in 19 Bender’s Immigr. Bull. 1039 (Sept. 15, 2014) [USC suffering
from anxiety and depression; she would be unable to meet financial obligations without Indian
applicant who had history of paying U.S. taxes, strong community ties and no criminal record]; Matter
of ___, New Delhi (AAO Sept. 12, 2012) [considered USC wife’s hardship in moving to Pakistan and
health issues, including high blood pressure and depression]; Matter of ___, Vienna, Austria (AAO July
10, 2012), AILA Doc. No. 12071867[granted based upon totality of circumstances to parents who were
ill, spouse who had psychological problems and child as it affected USC parent as well as country
conditions in Albania]; Matter of ___, Guangzhou, China (AAO Mar. 21, 2012) 2012 WL 4713488 [USC
with psychological problems faces additional stress of raising step-daughter alone and supporting two
households]; Matter of ___, Ciudad Juarez (AAO Mar. 9, 2012, 2012 WL 4713448 Page 146 [hardship
for Mexican born USC suffering from major depressive disorder to return to Mexico because of
violence]; Matter of ___, Ciudad Juarez (AAO Mar. 6, 2012), 2012 WL 4713414 [fear of abuse by ex-
boyfriend in Mexico of applicant and USC’s children and USC if he goes to Mexico and USC could not
see his 2 other children if he goes to Mexico because ex-wife will not allow travel to Mexico because of
U.S. government alerts]; Matter of ___, Miami (AAO Feb. 10, 2012), 2012 WL 4713250 [crime and
neo-Nazis in Brazil, working 2 part-time jobs, psychological problems, and needs wife to return to U.S.
for economic support]; Matter of ___, Panama City (AAO Jan. 3, 2012), 2012 WL 4108220 [family
separation may be the single most important factor; USC from Cuba with emotional problems would
suffer extreme hardship if relocated to Colombia]; Matter of ___, Vienna, Austria (AAO Oct. 16, 2012),
AILA Doc. No. 12103060 [relying on totality of hardship and aggregating factors for joint waiver with
212(i) and then balancing equities against fraud and overstay for applicant from Montenegro]; Matter of
___, A73 766 343 (AAO Jan. 5, 2011) [hardship to family in Guyana or wife and children here alone
without husband], reprinted in 88 No. 5 Interpreter Releases 462-72 (Jan. 31, 2011);Matter of ___(AAO
Apr. 7, 2010), AILA Doc. No. 11080963 [Israeli citizen where AAO focused on cumulative factors under
Cervantes-Gonzalez and recognized the primacy of family ties]; Matter of ___(AAO July 22, 2010)
AILA Doc. No. 10092972 [Venezuelan husband who overstayed 4 years]; Matter of ___, 2009 WL
2137937 (AAO Apr. 14, 2009) [hardship to USC daughter who could not live in Mexico because of
language difficulty, husband has migraines, and family would lose home]; Matter of ___(AAO Oct. 31,
2007), reported in 85 No. 12 Interpreter Releases 837, 856–57 (Mar. 18, 2008) [financial and
emotional hardship to spouse who was requesting public benefits, receiving assistance from her
parent, was unable to find employment and unable to read while her husband had an employment
offer; emotional hardship to her because of her own condition and her children]; Matter of ___ (AAO
Apr. 24, 2007), reported in 84 No. 21 Interpreter Releases 1117, 1139 (May 21, 2007) [USC husband
documented history of family depression]; Matter of ___ (AAO Mar. 27, 2007), reported in 85 No. 4
Interpreter Releases 201-04 (Jan. 21, 2008) [granting waiver where medical hardship to the child
would affect hardship to the spouse]. The applicant may demonstrate extreme hardship to her
USC/LPR spouse or parent in two scenarios—if the USC/LPR spouse or parent remains in the U.S. or
if the USC/LPR spouse or parent accompany the applicant to the applicant’s home country. Matter of
___, Chicago, Ill. (Dec. 2, 2010), AILA Doc. No. 10121362 [reversed denial noting both requirements
where spouse has diabetes, peripheral neuropathy, peripheral vascular disease, depression, financial
difficulties, and personal difficulties in being a single parent to eight children, seven of whose mother is
deceased]; Matter of ___(AAO Detroit May 7, 2014), AILA Doc. No. 14051342 [hardship of return to
India sufficient and Field Director reversed]. But see Matter of ___(AAO Mexico City (Ciudad Juarez)
July 3, 2012), AILA Doc. No. 14051652 [emotional hardship to USC parents without psychological
reports based on fear of daughter in Mexico given violence and her separation from family was
insufficient]; Matter of ___(AAO Ciudad Juarez, Jul 21, 2010, AILA Doc. No. 14051652 [no proof that
applicant cannot gain employment in Mexico and no evidence of the severity of USC spouse’s
depression and treatment plan].
USCIS has issued detailed guidance in its policy manual recognizing that hardship is cumulative, that
an applicant need show only that separation or relocation would cause hardship, and that even
nonqualifying relatives may affect the hardship determination. 9 USCIS-PM, Pt. B, Ch.7. For a detailed
discussion concerning Adjudicating an Extreme Hardship Claim, see Chapter 8, Section III.C (p.1633),
infra.
Even if “extreme hardship” is found, USCIS must still engage in a balancing test to determine whether
the waiver should be granted following the balancing of adverse and positive factors pursuant to Matter
of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996) and Matter of Marin, 16 I&N Dec. 581 (BIA
1978). See Matter of ___, VSC (AAO Feb. 11, 2011), AILA Doc. No. 11022563 [finding extreme
hardship and after balancing factors granting waiver]; Matter of Mohammad Shezad Mirza, A75 039
618 (AAO Rome Sept. 22, 2010) [using test in Cervantes-Gonzalez and finding applicant merits
favorable exercise notwithstanding his entry EWI, his providing a false name and DOB to immigration
officers, his failure to appear at his removal hearing, and his remaining in U.S. unlawfully for three
years after final order] There is no judicial review of the waiver provision. Page 147
(2) Procedure—Waiver is filed on Form I-601. If seeking entry as an NIV, waiver is under INA §212(d)(3)
(A) with different standards, except for a K visa, where the permanent waiver provision under INA
§212(a)(9)(B)(v) applies. Matter of ___, VSC (AAO Feb. 11, 2011), AILA Doc. No. 11022563 [rejecting
a 212(d)(3)(A) waiver for a K-1 applicant and applying the 212(a)(9)(B)(v) extreme hardship standard
including reliance on Matter of Marin]. All I-601 waivers are filled in the U.S. unless: (1) the applicant
resides in Cuba; or (2) the applicant resides in a country where there is an international USCIS office
and the FOD in the office is satisfied that there are “exceptional and compelling circumstances that
require the immediate filing” such as medical emergencies, threats to personal safety, aging out
issues, and adoptions where petitioner has an immediate need to depart. The office can also accept
an I-290B if the applications are denied. Policy Memo, USCIS, PM-602-0062.1, Exceptions for
Permitting the Filing of Form I-601 and Any Associated Form I-212, (Nov. 30, 2012), AILA Doc. No.
12120568; USCIS, Adjudicating I-601 Waivers, AILA Doc. No. 15082741a at 460-61[includes
extensive training manuals and guidelines for USCIS officers]; AFM 41.7.
(3) Provisional Unlawful Presence Waiver
81 FR 50244-77 (July 29, 2016) [final rule amending waiver criteria]; 78 FR 536-78 (Jan. 3. 2013) [final
rule]; 8 CFR §212.7(e); 9 FAM 302.9-14(D)(1)(b); FAQs, USCIS (Jan. 2013), AILA Doc. No. 13011041;
Memo, Johnson, Sec. DHS, Expansion of the Provisional Waiver Program, (Nov. 20, 2014), AILA Doc.
No. 14112007; USCIS, Standard Operating Procedures for Form I-601A, Application for Provisional
Unlawful Presence Waiver, Version 1.1 (Mar. 14, 2013), AILA Doc. No. 14050241.
(a) In General—Therule allows for the preadjudication in the U.S. of the waiver for the 3/10 year bar
for all persons with qualifying relatives (USC, LPRs) under the waiver provision. It permits USCIS to
grant a Provisional Unlawful Presence Waiver in the U.S. to IV applicants and Diversity Visa
applicants who qualify by allowing them to file an I-601A form in the U.S. It does not apply to, nor
permit, a waiver for the “permanent” bar under INA §212(a)(9)(C)(i), 81 FR at 50253, and if one is
granted where the person is inadmissible under 212(a)(9)(C) the waiver will be revoked. 81 FR at
50256 & n.36. It is also not available to a person who needs multiple waivers. Nor to a person
granted voluntary departure. 81 FR at 50256-57. However, a person with a final order of removal
who obtains an I-212 waiver first may apply for the provisional waiver. 81 FR 50255-56, 50259. An
approval of a provisional waiver does not grant any status, employment authorization, the right to
travel or even a stay of the accrual of unlawful presence and the government retains the discretion
to initiate removal proceedings. 8 CFR §§212.7(e)(2)(i), (ii); 81 FR at 50250, 50259; 78 FR at 554,
555. If denied, the applicant may not file a motion to reconsider/reopen but is not precluded from
refiling or filing a waiver request at the U.S. consulate in accordance with current procedures. 8
CFR §212.7(e)(9),(11); DOS, Supplemental Guidance for Processing I-601A Provisional Unlawful
Presence Waivers, State 00113110 (Aug. 13, 2013), AILA Doc. No. 13082640. If denied USCIS,
consistent with its enforcement priorities at the time, may refer the person for removal. 78 FR at
554, 81 FR at 50259.
DHS expanded the program to all visa categories including diversity visas and to all persons who
would qualify for the visa thus now including LPR spouses and parents. 81 FR at 50249.
(b) Eligibility[ 8 CFR §212.7(e)(3)]
i) Requirements:
Present in U.S. at time of filing the I-601A and the biometric collection
17 years or older at the time of filing
Upon departure would be inadmissible only under INA §212(a)(9)(B)(i) (3/10 year bar) at the
time of the IV interview
Has case pending with DOS based on IV or Diversity lottery
Will depart the U.S. to obtain the IV and
Meets the extreme hardship requirements and warrants a favorable exercise of discretion
under INA §212(a)(9)(B)(v). Page 148
ii) Applicant in TPS status is eligible for the waiver assuming he does not have a final order of
removal 78 FR at 547 or if a final order has obtained an I-212 waiver before applying for the
provisional waiver. 8 CFR §212.7(e)(4)(iv).
iii) The program is expanded to all visa categories including Diversity Visas, and to include
hardship to LPR spouses and parents. 81 FR at 50245. Thus, the current program includes
family-sponsored immigrants (I-130s), employment-based immigrants (I-140s), special
immigrants (I-360s), Diversity Visa program selectees, and derivative spouses and children in all
categories. Includes anyone who has a qualifying relative for purposes of the waiver under INA
§212(a)(9)(B)(v) if he or she meets the other criteria supra. It therefore includes lawful
permanent resident spouses or parents who would suffer extreme hardship. The program also
no longer restricts eligibility based upon DOS visa eligibility scheduling. 81 FR at 50245, 50254-
55.
iv) Under the prior version of the program a person was ineligible if USCIS had “reason to believe”
that the applicant may be inadmissible at the time of his or her IV interview on grounds other
than or in addition to the 3/10 year bar. 78 FR at 546-47. The “reason to believe” provision was
eliminated in the current regulations for the waiver. 81 FR 50245, 50253-54.
(c) Ineligibility [ 8 CFR §212.7(e)(4)]
The applicant is outside of the U.S.

The applicant does not have an approved I-130 or I-360.
Applicant is under 17 years of age.
Applicant does not have a case pending with DOS based upon: (a) an approved IV petition
where the DOS processing fee has been paid; or (b) selection for the Diversity Visa for the fiscal
year for which the applicant registered.
Applicant is in removal proceedings unless the removal proceeding has been administratively
closed and has not been recalendared at the time of filing the waiver. 81 FR at 50255. ICE,
under new guidance, has said they will no longer agree to systematically administratively close
proceeding to allow someone to file a I-601A. ICE No Longer Agrees to Systematically Close
Cases for Form I-601A Filings (Apr. 26, 2017), AILA Doc. No. 16112144.
Applicant has a final order of removal under any provision of law including in absentia and
summary removal order (including those persons granted deferred action or DACA with final
orders) 78 FR at 544-45, unless USCIS has already granted an I-212 waiver before filing the
Unlawful Presence waiver. 81 FR at 50255-56.
Applicant granted voluntary departure, 81 FR at 50256-57.
Applicant has a prior order of removal reinstated under INA §241(a)(5) by ICE or CBP prior to or
during the pendency of a provisional waiver application, or
Applicant has a pending AOS.
(d) Procedures [8 CFR §212.7(e)(5)-(13)]
i) The I-601A application must be filed with USCIS even if applicant is in removal proceedings. 8
CFR §212.7(e)(1). There are no fee waivers for the I-601A or the biometrics. 8 CFR §103.7(c)(3)
(i); 78 FR at 561.
ii) The I-601A must include evidence of the approved IV petition and a copy of the fee receipt
evidencing that the applicant has paid the immigrant processing fee to DOS or in Diversity visa
cases that the person was selected in the year applied. Failure to pay the IV fee and providing a
copy of the fee receipt before filing has been one of the major reasons for rejecting applications.
USCIS, Rejection of Provisional Unlawful Presence Waiver Applications, AILA Doc. No.
13042554. Concurrent filing with the I-130 or I-360 is not permitted; nor may an applicant Page
149 file the I-601A before approval of the I-130/I-360 petition. 78 FR at 544, 548. All
submissions for IVs must include evidence that the visa petition was approved. 8 CFR §212.7(e)
(5)(ii)(E). And the qualifying relative suffering extreme hardship must be a USC or LPR. 78 FR at
542, 543; Memo, Johnson, Sec. DHS, Expansion of the Provisional Waiver Program, (Nov. 20,
2014), AILA Doc. No. 14112007. Applications may be supplemented. 78 FR 550. [applicant may
correct or address mistakes on I-601A]. Where the NVC is alerted to a pending I-601A
application, it will hold the case until receiving notification of the decision. If the case was
already sent to the consular post, the applicant should contact the post and ask that the
interview be rescheduled. Minutes, AILA-DOS, Liaison Meeting (Oct. 6, 2016), Q.19, AILA Doc.
No. 16100705.
iii) Derivative spouse or child, or spouse or child accompanying or following to join, if admissible,
are included as long as evidence is submitted as to their eligibility of their derivative status. 8
CFR §212.7(e)(5)(ii)(E)(3); 81 FR at 50244. If they are subject to the 3/10 year bar they must
separately qualify.
iv) Notification to National Visa Center and DOS Processing. DOS, Supplemental Guidance for
Processing I-601a Provisional Unlawful Presence Waivers, State 00113110 (Aug. 13, 2013),
AILA Doc. No. 13082640. Before applying for I-601A waiver (or reapplying) the applicant must
notify the National Visa Center. Notice, DOS, Important Instructions for the Provisional Unlawful
Presence Waiver Applicants (Jan. 3, 2013), AILA Doc. No. 13010340; Cable, DOS, No.
00113110, Supplemental Guidance for Processing I-601A Provisional Unlawful Presence
Waivers (Aug. 13, 2013), reprinted in 90 No. 32 Interpreter Releases 1711, 1714-15 (Aug. 26,
2013). 9 FAM 302.9(D)(1).
v) The CSPA applies to maintain “immediate relative status” for purposes of the waiver. 78 FR at
550-51.
vi) Must have biometrics taken; failure is deemed abandonment of I-601A. 8 CFR §212.7(e)(6)(ii).
vii) If in removal proceedings, applicant must obtain administrative closure before filing. After
obtaining the waiver, but before departing the U.S., the applicant should move to terminate
removal proceedings or obtain VD and depart. In light of Matter of Sanchez-Herbert, 26 I&N
Dec. 43 (BIA 2012) departing without terminating removal proceedings could result in an in
absentia order that would then bar (and hence cause the cancellation of) the I-601A waiver. 78
FR at 543-44, 562.
viii) Applicant has burden of proof by preponderance of the evidence. 8 CFR §212.7(e)(7).
ix) Applicant may withdraw his request for an I-601A waiver. 8 CFR §212.7(e)(10).
x) USCIS may require an interview. 8 CFR §212.7(e)(8)
xi) USCIS may deny a provisional waiver without issuing an RFE or NOID, 8 CFR §212.7(e)(8), is
unlikely to issue NOIDs, 78 FR at 552-53, but is committed to issuing issue an RFE. 81 FR at
50258. The applicant will be given only 30 days to respond to an RFE. Policy Memo, USCIS,
Standard Timeframe for Applicant to Respond to RFE for Evidence Issued in Relation to a
Request for a Provisional Unlawful Presence Waiver, Form I-601A, PM-602.0081 (Mar. 1, 2013),
AILA Doc. No. 13031842; AFM Appendix 10.9. An additional 3 days for mailing is added. 8 CFR
§103.8(b). The three days for mailing may not apply to electronic transmittals. See, e.g., Policy
Guidance, ICE, SEVIS, “Timely Filing,” 1308-02 (Aug. 15, 2013), AILA Doc. No. 13100363 [3-
day window does not apply to electronic transmissions from SEVIS].
xii) USCIS has issued standard operating procedures for the adjudication of the I-601A. USCIS,
Standard Operating Procedures for Form I-601A, Application for Provisional Unlawful Presence
Waiver, Version 1.1 (Mar. 14, 2013), AILA Doc. No. 14050241. The SOPs address matters such
as: (1) how to interpret the extreme Page 150 hardship provision, SOPs at 49-52; (2) the
standard and burden of proof to apply, SOP at 52-54; (3) the weighing of favorable and
unfavorable factors, SOPs at 54-55; and (4) the limitations, conditions, and validity of an
approval. SOPs at 56-59.
xiii) Assessing Hardship
In assessing extreme hardship immigration officers should consider the following “guiding
principles:” (1) it must be greater than common results of hardship; (2) it does not need to be
“unique or unusual” and should not be confused with the standard for cancellation of exceptional
and extremely unusual hardship; (3) it is based on the factors, arguments and evidence
submitted; (4) it is assessed individually and collectively; (5) it can be based upon actual or
prospective injury (but claims of prospective injury must be realistic and foreseeable). Common
results/consequences include family separation, economic detriment, difficulties of readjusting to
life in the new country, the disparate quality and availability of education opportunities abroad,
and the disparate quality and availability of medical services and/or facilities. However,
“[s]pecific facts of the case might impact and exacerbate these common consequences of
inadmissibility and make them rise to the level of extreme hardship.” The SOPs provide the
following examples: (1) medical treatment of a physical or mental condition where there are
issues regarding the quality of care abroad, the anticipated duration of the treatment and
whether it is chronic vs acute or long vs short term; (2) financial considerations including future
employability, termination of a professional practice, costs of special training for children with
special needs; (3) educational considerations including loss of opportunity for higher education,
disruption of current program and special requirements; (4) personal considerations such as
close relatives in the U.S., length of residence and community ties in the U.S. and separation of
spouse/children; and (5) special factors such as cultural, language, religious and ethnic
obstacles, credible fear of persecution, physical harm or injury, social ostracism and lack of
access to social institutions or structures. SOPs at 50-51
Types of evidence submitted may include: (1) affidavits from qualifying relative and others with
personal knowledge of the hardship; (2) expert opinions; (3) payroll records or tax statements as
proof of employment or business ties; (4) financial records including bills and invoices, mortgage
statements and rental agreements as proof of monthly expenditures; (5) medical documentation
supporting medical hardship; (6) membership in community organizations; (7)
birth/marriage/adoption records; (8) country condition reports; and (9) any other evidence to
support the claim. SOPs at 51-52.
The Secretary of DHS has directed USCIS to “consider criteria by which a presumption of
extreme hardship may be determined to exist.” Memo, Johnson, Sec. DHS, Expansion of the
Provisional Waiver Program, (Nov. 20, 2014) at 2, AILA Doc. No. 14112007. The Secretary has
also suggested criteria to be considered when determining extreme hardship including, but not
limited to: family ties to the U.S. and country of removal; conditions in the country of removal;
age of the USC or LPR spouse or parent; length of residence in the U.S.; relevant medical and
mental health conditions; financial hardships; and educational hardships.
xiv) For a more detailed discussion of “extreme hardship” see 9 USCIS-PM, Pt. B and Chapter 8,
Part III (p.1633), infra. See also in this part case law on extreme hardship under INA §212(h) (¶
J.15.b, p.206) and INA §212(i) (¶ J.16.b, p.212), infra.
xv) Denial is not appealable to AAO and no motions to reopen/reconsider will be considered
except on USCIS’s own motion. 8 CFR §212.7(e)(11); 81 FR at 50258, 78 FR at 554. A denial,
however, does not preclude the applicant from filing a new I-601A waiver, or an I-601 waiver at
the time of the IV interview. 8 CFR §212.7(e)(8) Page 151
xvi) If approved and takes effect the waiver is valid indefinitely. 8 CFR §212.7(a)(13). If approved,
the waiver does not take effect unless and until the applicant: (1) departs the U.S.; (2) appears
at the U.S. Embassy or consulate for the IV interview; and (3) is determined to be admissible
and eligible for the IV with the approved provisional unlawful presence waiver. Before the
approval takes effect, USCIS may reconsider and reopen the decision if approved in error. 8
CFR §212.7(e)(13), §212.7(a)(4)(v); 81 FR at 50254. The consular officer makes the final
determination as to admissibility. 8 CFR §212.7(e)(13)(i).
(e) Revocation [ 8 CFR §212.7(e)(14)]
The waiver is revoked automatically if:
The consular officer determines that the applicant is inadmissible on grounds other than the
3/10 year bar;
The petition that was the basis for the waiver is revoked, withdrawn, or rendered invalid and
not reinstated for humanitarian reasons;
The visa registration is terminated under INA §203(g) and is not reinstated; or
The applicant reenters or attempts to reenter EWI after filing the provisional waiver.
3. Persons Unlawfully Present Who Enter or Seek to Enter EWI
INA §§212(a)(9)(C)(i)(I) & (II), 8 USC §§1182(a)(9)(C)(i)(I) & (II), 22 CFR §40.93; 9 FAM 302.11.
3.a. Generally—Persons who have: (1) either been unlawfully present for an aggregate period of more than
one year or have been ordered removed under expedited, summary, or other removal, deportation, or
exclusion provisions and (2) who enter or attempt to enter without inspection are inadmissible. Matter of
E-N-D-C-, ID#16264 (AAO May 16, 2016 [expedited removal order valid to bar entry even if not advised of
rights]. However, if the re-entry was before Apr. 1, 1997, the bar does not apply. Matter of ___, San
Francisco (AAO Dec. 29, 2011), AILA Doc. No. 12010465. The one-year period is aggregated but no
period of unlawful presence prior to Apr. 1, 1997 will be counted. AFM at 40.9.2(a)(4)(B). This bar is
permanent. 9 FAM 302.11-4(D)(1). A person may seek a waiver but only after being physically outside of
the U.S. for a period of 10 years. AFM at 40.9.2(a)(1)(B); Zeremeno v. Lynch, 835 F.3d 514, 516-19 (5th
Cir. 2016) [deferring to BIA’s interpretation in Matter of Torres-Garcia that under INA §212(a)(9)(C)(ii) the
10-year bar applies until the person in physically out of U.S. for the 10 years and only thereafter seeks
permission from DHS to reapply]. The exceptions (discussed in this section at ¶ 2.f (p.142), supra) under
INA §212(a)(9)(B) [3/10 year bars] do not apply, including the exclusion for time as a minor. Neufeld,
Scialabba, Chang Memo, , AILA Doc. No. 09051468supra at 28-29. The only exception is a VAWA waiver,
see ¶ 3.e (p.153), infra.
3.b. INA §245(i) Ineligibility; No I-212 Waiver—A person ineligible under this provision may not adjust under
INA §245(i); Memo, Aytes, Acting Deputy Director, USCIS, Adjudicating Forms I-212 for Aliens
Inadmissible Under Section 212(a)(9)(C) (May 19, 2009), AILA Doc. No. 10012674 [directing the denial of
I-212 applications where applicant is in the U.S. after subsequent entry without admission or is abroad but
not outside U.S. for 10 years since departure]; Matter of Briones, 24 I&N Dec. 355 (BIA 2007) [INA §245(i)
adjustment is unavailable to someone who is subject to INA §212(a)(9)(C)(i)(I)]. See also Matter of Diaz,
25 I&N Dec. 188 (BIA 2010). And the person may not seek a waiver nunc pro tunc. Matter of Torres-
Garcia, 23 I&N Dec. 866 (BIA 2006) [I-212 waiver cannot retroactively waive inadmissibility under INA
§212(a)(9)(C)(i)(II) because the applicant cannot seek admission under that section for 10 years after the
date of his last departure from the U.S.; disagreeing with Perez-Gonzalez]; Garfias-Rodriguez v. Holder,
702 F.3d 504, 512-15 (9th Cir. 2012) (en banc) [Followed Matter of Briones and Duran Gonzales I and
held under Chevron and Brand X deference that a person inadmissible under INA §212(a)(9)(C)(i)(I) may
not AOS by virtue of INA §245(i)]; Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013) [followed
Torres-Garcia and found the application of Duran Gonzales to bar AOS that was filed before Duran
Gonzales was issued was not an impermissible retroactive application under Montgomery Ward]; Padilla-
Caldera v. Holder, 637 F.3d 1140 (10th Cir. 2011) [followed Briones in Chevron Step 2 and recognized
Page 152 that Brand X empowered BIA to not follow 10th Circuit’s prior decision]; Renteria-Ledesma v.
Holder, 615 F.3d 903 (8th Cir. 2010) [followed Briones under Step 2 of Chevron]; Ramirez v. Holder, 609
F.3d 331 (4th Cir. 2010) [same]; Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. 2010) [followed Torres-
Garcia and Duran Gonzales I and rejected a retroactivity argument and substantive due process
argument]; Gonzalez-Balderas v. Holder, 597 F.3d 869 (7th Cir. 2010) [followed Torres-Garcia and upheld
denial prohibiting retroactive I-212 application to cure 10-year “permanent” bar under 212(a)(9)(C)(ii)];
Mora v. Mukasey, 550 F.3d 231 (2d Cir. 2008) [following Briones under Chevron]; Ramirez-Canales v.
Mukasey, 517 F.3d 904, 907–10 (6th Cir. 2008) [following Briones under Chevron but remanding for
potential nunc pro tunc relief]; Delgado v. Mukasey, 516 F.3d 65 (2d Cir. 2008) [same, agreeing with
Torres-Garcia and Gonzales]; Duran Gonzales v. DHS, 508 F.3d 1227, 1234–42 (9th Cir. 2007) [reversing
prior decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004) and upholding on Chevron
deference under Brand X the BIA’s decision in Matter of Torres-Garcia]; Mortera-Cruz v. Gonzales, 409
F.3d 246 (5th Cir. 2005) [Chevron deference granted to BIA’s determination that a person inadmissible
under INA §212(a)(9)(C)(i) may not adjust under INA §245(i)]; Berrum-Garcia v. Comfort, 390 F.3d 1158,
1166–68 (10th Cir. 2004)[applicant for §245(i) adjustment who re-enters after removal/deportation is not
eligible to waive INA §212(a)(9)(C)(i)(II) with an I-212 without returning to his home country for 10 years].
But see De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) [BIA decisions under the Chevron Step-
2/Brand X scenario are not retroactive and the BIA decision in Briones regarding the “permanent” bar
could not apply in the 10th Circuit where the law allowed for a 245(i) waiver before Briones]. See also
Acosta-Olivarria v. Lynch, 799 F.3d 1271 (9th Cir. 2015) [where AOS was field before Briones and while
the 9th Circuit Acosta decision permitted AOS for person subject to “permanent” bar, the court applied the
Montgomery Ward factors and held that Briones did not apply retroactively to bar AOS]; Correo Ruiz v.
Lynch, 809 F.3d 543 (9th Cir. 2015) [remanding case to supplement record on whether Briones should be
applied retroactively where AOS was filed prior to Briones and Acosta in 2002 but applicants claim they
relied on Acosta].
(1) Duran Gonzalez Settlement—The parties in Duran-Gonzalez settled the case to allow class members
to file motions to reopen their cases to challenge the retroactive application of Torres-Garcia under the
Montgomery Ward factors. Duran-Gonzalez v. DHS, No. CO6-1411 (W.D. Wash. Mar. 6, 2014), AILA
Doc. No. 14033147. Text of settlement agreement and related documents are also published on
USCIS website at http://1.usa.gov/QLph03. Class members are: (1) persons who entered or attempted
to re-enter after being removed and without receiving permission to reapply; and (2) filed 245(i) AOS
between Aug. 13, 2004 and Nov. 30, 2007; and (3) filed an I-212 between those dates; and (4) at the
time of filing they resided in one of the states of the Ninth Circuit; and (5) apart from their re-entry they
were otherwise eligible to apply for 245(i). The applicant is ineligible if she: (1) re-entered after having
been removed after Nov. 30, 2007; (2) currently in removal proceeding or have a petition pending in
the Ninth Circuit (but not including a petition for review of a reinstatement order); (3) a petition for
review has been dismissed after the Ninth Circuit applied Montgomery Ward factors; or (4) the 245(i)
petition was dismissed for a reason other than the INA §212(a)(9)(C)(i)(II). An applicant should submit
information in support of the Montgomery Ward factors, reprinted in 91 No. 14 Interpreter Releases
580, 597-99 (Apr. 7, 2014). Final class definition and settlement dividing the class into subclasses at
Joint Motion for Approval of Settlement Agreement and Amendment of the Class Definition (July 11,
2014), reprinted at 19 Bender’s Immigr. Bull. 912-15 (Aug. 15, 2014). Class members had only until
Jan. 21, 2016 to seek relief. Policy Memo, USCIS, Duran Gonzalez Class Members: Jan. 21, 2016
Deadline Approaching (Dec. 2015), AILA Doc. No. 15120130; Policy Memo, USCIS, PM-602-0121,
Additional Guidance for Implementation of the Settlement Agreement in Duran Gonzalez v.
Department of Homeland Security (Aug. 25, 2015), AILA Doc. No. 15082734 [the updated guidance
now clarifies that even in cases where applicants are not able to show reasonable reliance when they
filed the adjustment application with the I-212, they nonetheless will be found eligible if the facts of the
case support a finding that the burden of denial (of the applications) would be greater than the ordinary
consequences of removal experienced by others. The guidance further clarifies that, “[a]though, in the
absence of reliance, the burden would have to be greater than the ordinary consequences of removal,
it does not need to amount to ‘extreme hardship’ ”]; Page 153 Policy Memo, USCIS, PM-602-0108,
Implementation of the Settlement Agreement in Duran Gonzalez v. Department of Homeland Security
(Jan. 31, 2015), AILA Doc. No. 15021346.
3.c. Parole—A person who has accumulated a year of unlawful presence and is paroled into the country at
the border is not inadmissible and does not trigger INA §212(a)(9)(C) because a parole is not an
admission and the applicant is not deemed to be seeking admission. However, it does not relieve the
person of inadmissibility in the future should she seek an admission or AOS. AFM at 40.9.2(a)(6).
3.d. Bar Not Applicable to Person Who Entered Before Apr. 1, 1997—There is some authority to support the
position that the 10-year “permanent” bar under INA §212(a)(9)(C)(i) only applies to persons who sought
entry or reentered the U.S. on or after Apr. 1, 1997. Matter of ___, CSC, 2008 WL 5236908 (AAO Sept.
30, 2008) [Person who reentered unlawfully on Dec. 16, 1992 after being deported for material
misrepresentation in Oct. 1992 was not subject to 10-year bar under INA §212(a)(9)(C)(i)(II) because her
reentry was before Apr. 1, 1997]; Matter of ___, VSC, 2008 WL 5063531 (AAO Aug. 26, 2008) [same for
reentry May 1985 and filing I-212 in May, 2005]; Matter of ___, DD Harlingen, TX, 2008 WL 4969022
(AAO July 24, 2008) [same where reentered EWI prior to July 10, 1992 and filed I-212 waiver on Feb. 24,
2005]; Matter of ___, DD, Chicago, Ill., 2008 WL 4051676 (AAO Apr. 29, 2008) [same where reentered
EWI before Nov. 5, 1990 and filed I-212 with AOS on May 4, 2006]; Virtue, Acting Executive Assoc.
Comm., INS, Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the INA, HQ IRT
50/51.2, 96 Act 043 (June 17, 1997) at 5–6, AILA Doc. No. 97061790. See also AFM 40.9.2(a)(9) [only
periods of unlawful presence after Apr. 1, 1997 count toward the time periods under INA §212(a)(9)(C)].
3.e. Limited Waivers Available [INA §212(a)(9)(C)(ii), INA §212(a)(9)(C)(iii)]—DHS, under subsection (iii),
may waive this ground of inadmissibility for a battered spouse/child if there is a connection between the
battering and the removal, departure from the U.S., reentry, or attempted reentry into the U.S. USCIS,
Immigrant Waivers: Procedures for Adjudication of Form I-601 For Overseas Adjudication Officers (Apr.
28, 2009), at 47–49, AILA Doc. No. 09061772 . A waiver is also available under subsection (ii) to a person
“seeking admission more than 10 years after the date of [her] last departure from the United States” upon
approval of DHS. The waiver, in the view of one court, may only be utilized after the person has exited the
U.S. “and waited ten years before applying.” Carrillo de Palacios v. Holder, 708 F.3d 1066, 1073-74 (9th
Cir. 2013) [applicant for AOS who has been in U.S. more than 10 years beyond unlawful reentry may not
apply to waive inadmissibility until she is physically outside the U.S. for ten years]. The BIA has suggested
that because the authority for the waiver was changed from the AG to DHS under the Violence Against
Women and DOJ Reauthorization Act—Technical Corrections, PL 109-271, §6(b), 120 Stat. 750, 762
(2006), IJs may no longer have jurisdiction to grant these waivers. Matter of Briones, 24 I&N Dec. 355,
359 n.5 (BIA 2007); Sarango v. U.S. Att’y Gen., 651 F.3d 380 (3d Cir. 2011) [IJ lacks authority to grant
212(a)(9)(C)(ii) waiver nunc pro tunc].
3.f. Registry Available—A person inadmissible under this section may apply and receive registry if eligible.
AFM at 40.9.2(a)(8)(B).
4. Persons Present Without Admission or Parole
INA §212(a)(6)(A)(i), 8 USC §1182(a)(6)(A)(i), 22 CFR §40.61; 9 FAM 302.9-2(A); AFM at 40.6.2(a); Memo,
Scialabba, Neufeld, Chang, USCIS, HQ 70/21.1, AD07-18 (Mar. 3, 2009), AILA Doc. No. 09040236 [major
revisions of all 212(a)(6) categories]
A person present in the U.S. without having been admitted or paroled (EWI) or who “arrives” at a place other
than that designated by DHS is inadmissible. This provision contains two closely related inadmissibility
grounds because it relates to those who previously entered without inspection or parole or who currently
“arrive” in the U.S. It does not bar a person who “arrived” previously unless it is under the EWI section which
can be cured by a parole. AFM 40.6.2(a); Policy Memo, USCIS, PM-602-0091, Parole of Spouses, Children
and Parents of Active Duty Members, etc., (Nov. 15, 2013), AILA Doc. No. 13111545 [discussing why parole-
in-place can cure inadmissibility under this provision because the provision does not permanently bar people
who “arrived” in the U.S.]. This section therefore does not bar AOS if a person is granted parole-in-place. Id.
It also does Page 154 not bar adjustment under §245(i). Legal Opinion, Martin, General Counsel, CO 245(i)
(Feb. 19, 1997), AILA Doc. No. 97021991, and “does not apply to visa applicants outside the U.S.” Memo,
Virtue, Acting Exec. Assoc. Comm., HQ IRT 5015.12, 96 Act 026 (Mar. 31, 1997), AILA Doc. No. 97033190;
AFM at 40.6.2(a)(3)(ii) [only applies to individuals present in the U.S. and not to persons who apply for a visa
abroad]. It also does not apply to: (i) VAWA self-petitioners or their children under INA §212(a)(6)(A)(ii);
Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017) [an applicant seeking to qualify for the exception under
212(a)(6)(A)(ii) must meet all three subclauses of the section including that the applicant be a VAWA self-
petitioner and therefore have a qualifying spouse or parent]; (ii) AOS pursuant to §245(h) (special immigrant
juveniles); (iii) HRIFA; (iv) NACARA §202(b); (v) Registry; (vi) Family Unity under §301 of IMMACT90; (vii)
Legalization under §245A and CSS, LULAC and other §245A class settlements; (viii) Change of status to V;
(ix) TPS (but not AOS from TPS); (x) Asylum. AFM 40.6.2(a)(4). A VAWA applicant whose application was
previously denied based on INA §212(a)(6)(A)(i) may file a motion to reopen or reconsider without the
payment of a filing fee. AFM at 23.5(k). Also a person may be considered “inspected and admitted” and
therefore not EWI even if he or she presents false documents or gets “waived in” at the border. See Chapter
6, ¶ XII.A.1 (p.1373), infra. The burden is on the applicant to show admission. Singh v. Holder, 749 F.3d 622,
626-27 (7th Cir. 2014) [failed to meet burden to show inspection and admission and I-213 and I-130
contradict his position].
5. Failure to Attend Removal Proceeding [INA §212(a)(6)(B), 8 USC §1182(a)(6)(B), 22 CFR §40.62; 9 FAM
302.9-3]—A person who without reasonable cause fails or refuses to attend or remain in attendance at her
removal proceeding is inadmissible for 5 years from departure or removal. This section only applies if the
person is physically removed or departs the U.S. and then seeks reentry. Memo, Virtue, Acting Exec. Assoc.
Comm., HQ IRT 50/51.2, 96 Act 043 (June 17, 1997), AILA Doc. No. 97061790. This section applies only to
persons in removal proceedings and does not apply to persons who fail to appear for an
exclusion/deportation hearing. Id. AFM at 40.6.2(b)(2)(i). However, the section is not limited to a person
receiving an in absentia order because a person may be inadmissible even if the IJ did not enter an in
absentia order where the person failed to appear after receiving proper notice. AFM at 40.6.2(b)(2)(v). Proper
notice of the hearing is required. AFM 40.6.2(b)(2)(iv); Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001).
Conversely, an in absentia order is not dispositive for two reasons. First, the in absentia order had to be
properly entered and second, the person’s failure to appear had to be without “reasonable cause.” AFM at
40.6.2(b)(2)(iv)–(v) and (3). USCIS and DOS define “reasonable cause” as something that “is not within the
reasonable control of the alien.” AFM at 40.6.2(b)(3), 9 FAM 302.9-3(B)(2), but no statutory or regulatory
definition exists. No I-212 waiver is available for this section and the person must remain out of the country
for the full 5-year period. AFM at 40.6.2(b)(3)(ii). However, the consular officer may determine that there was
“reasonable cause” for failing to appear. 9 FAM 302.9-3(B)(2). In addition, an INA §212(d)(3)(A) waiver is
available for temporary entry to the U.S. 9 FAM 302.9-3(D)(2).
6. Stowaways [INA §212(a)(6)(D), 8 USC §1182(a)(6)(D)]—INA §101(a)(49), 8 USC §1101(a)(49), specifically

defines stowaway as a person who obtains transportation without consent and through concealment. 9 FAM
302.9-6(B)(1). “A passenger who boards with a valid ticket is not to be considered a stowaway.” AFM at
40.6.2(d). A stowaway is not an applicant for admission, INA §235(a)(2), is not entitled to a removal hearing
and may only have a credible-fear determination. He is also ineligible to adjust, including INA §245(i), except
as a special immigrant juvenile. AFM 40.6.2(d)(3)(ii). However, he may be paroled into the U.S. Prior status
as a stowaway does not, in itself, make a person ineligible to receive a visa. 9 FAM 302.9-6(B)(2) and the
ground of ineligibility is not applicable at the time of visa application because it only applies to persons
arriving in the U.S. as stowaways. 9 FAM 302.9-6(C)
7. Smugglers—Persons who at any time knowingly encourage, induce, assist and abet, or aid any other alien
to try to enter the U.S. in violation of the law are inadmissible. INA §212(a)(6)(E)(i), 8 USC §1182(a)(6)(E)(i);
9 FAM 302.9-7; AFM at 40.6.2(e). In DOS’s view, this includes bringing in a minor child. Letter, Odom, Chief
Advisory Opinions, Visa Services (Oct. 20, 1993), reprinted in 71 No. 10 Interpreter Releases 352, 375–78
(Mar. 14, 1994). It is applicable for any impermissible conduct even if it occurred in the past. 9 FAM 302.9-
7(B)(2). But to be inadmissible, “the smuggler must act knowingly to encourage, induce, or assist an illegal
alien to enter the United States.” The smuggler “must be aware of sufficient facts such that a reasonable
person in the same circumstances” might Page 155 conclude that his acts resulted in the illegal entry of a
person and he “must act with intention” to achieve the illegal entry. “Therefore, belief that the alien was
entitled to enter legally, although mistaken, would be a defense to inadmissibility.” 9 FAM 302.9-7(B)(3).
7.a. A conviction for “bring to” the U.S. does not automatically render a person inadmissible because it is the
person’s conduct and not the fact of the conviction that is dispositive. Parra-Rojas v. U.S. Att’y Gen., 747
F.3d 164, 168-72 (3d Cir. 2014) [where person in fact did not encourage, induce, assist, abet or aid any
alien to enter or try to enter, his “bringing to” conviction did not render him inadmissible]. Another court
has suggested that a person who has been convicted of illegally transporting undocumented aliens is not
inadmissibile under this statute because the statute refers to aiding or abetting. Rodriguez-Gutierrez v.
INS, 59 F.3d 504, 509 n.3 (5th Cir. 1995). See also Matter of I-M-, 7 I&N Dec. 389 (BIA 1957).A person
cannot “knowingly assist” an alien to illegally enter unless he or she engages in “an affirmative and illicit
act of assistance in shepherding someone across the border.” Tapucu v. Gonzales, 399 F.3d 736 (6th Cir.
2005) [LPR who shared driving with 3 friends, acknowledged that friend was living illegally in U.S., but
believed he could travel back and forth and that his family was applying for him for LPR status was not
inadmissible]. See also Perez-Arceo v. Lynch, 821 F.3d 1178 (9th Cir. 2016) [reversed BIA for failure to
address inconsistent credibility findings and for failure of the IJ to make a finding that respondent engaged
in an “affirmative act of help, assistance or encouragement” regarding the smuggling]; Singh v. Mukasey,
553 F.3d 207, 214–16 (2d Cir. 2009) [where IJ’s adverse-credibility determination was reversed and
statement taken at Canadian border by CBP was suppressed as unreliable, DHS failed to prove alien
smuggling]; Aguilar Gonzalez v. Mukasey, 534 F.3d 1204 (9th Cir. 2008) [IJ finding of aiding and abetting
reversed despite petitioner’s presence in the car next to the infants being smuggled and her admission
that her father used her son’s U.S. birth certificate to smuggle one of the infants]; Altamirano v. Gonzales,
427 F.3d 586, 591–96 (9th Cir. 2005) [mere presence in a vehicle with knowledge that someone was
hiding in the trunk is not assisting or abetting in alien smuggling]; Matter of X-, (Baltimore, AAO May 24,
2013), reported in 19 Bender’s Immigr. Bull. 1040 (Sept. 15, 2014) [individual adamant that brother was a
USC when stopped at the border without more is not alien smuggling]. But see Dimova v. Holder, 783 F.3d
30 (1st Cir. 2015) [reading “entry” broadly and finding that person assisting in smuggling need not be
physically present at the time or place of illegal crossing, nor have caused, encouraged or induced the
person to enter to be charged with assistance]; Sanchez v. Holder, 704 F.3d 1107 (9th Cir. 2012)
[admissions in I-213 were sufficient to find smuggling of child despite applicant not driving vehicle];
Chambers v. Office of Chief Counsel, 494 F.3d 274 (2d Cir. 2007) [where respondent made false
statements at border about smuggled alien’s residency in the U.S., record contained substantial evidence
that respondent had knowledge]; Covarrubias v. Gonzales, 487 F.3d 742, 748–49 (9th Cir. 2007) [statute
covers any act that continues until the initial transporter drops them off on the U.S. side of the border;
respondent was aware of illegal acts at time they occurred and can be considered to have aided and
abetted]; Soriano v. Gonzales, 484 F.3d 318 (5th Cir. 2007) [upholding removal where respondent did not
assist undocumented persons on entry but drove them in friend’s truck after entry]. See generally U.S. v.
Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc).
7.b. Inadmissibility Not Applicable—This ground of inadmissibility does not apply to an applicant seeking
permanent residency as an immediate relative or under the second preference family-based visa
category, who qualified for family unity under IMMACT90 §301(b)(1), who was physically present in the
U.S. on May 5, 1988 and who assisted her spouse, parent, son or daughter (and no other individual) to
enter the U.S. in violation of law. INA §212(a)(6)(E)(ii).
7.c. Waiver—A limited waiver is also available for permanent residents and applicants for an immigrant visa,
who assisted her spouse, parent, son or daughter (and no other individual) to enter the U.S. in violation of
law. INA §212(d)(11).
7.d. “For Gain” No Longer Required—The former statute required that the government establish that the
violation was “for gain.” Matter of Tiwari, 19 I&N Dec. 875 (BIA 1989); Matter of Contreras, 18 I&N Dec. 30
(BIA 1981); Matter of Arthur, 16 I&N Dec. 558 (BIA 1978); Ribeiro v. INS, 531 F.2d 179 (3d Cir. 1976);
Sanchez-Marquez v. INS, 725 F.2d 61 (7th Cir. 1984) [actual receipt of money is unnecessary. Agreement
to pay later is sufficient “gain”]; Matter of B-G-, 8 I&N Dec. 182 (BIA 1958) Page 156 [same]. Although the
statute eliminated the “for gain” requirement, it added a special waiver under INA §212(d)(11), 8 USC
§1182(d)(11). See in this part ¶ J.9 (p.204), infra.
7.e. Jurisdiction to Compel Visa—Under the doctrine of consular nonreviewability, there may not be
jurisdiction to compel the issuance of a visa denied under this ground. Khanon v. Kerry, 37 F.Supp.3d 567,
573-78 (E.D.N.Y. 2014) [no jurisdiction under mandamus, APA, and Little Tucker Act (28 USC §1346(a)
(2)) to compel the issuance of an immigrant visa denied for alien smuggling and misrepresentation]. For a
further discussion on consular nonreviewability, see Chapter 10, ¶ IV.C.1.a (p.1895), infra.
8. Document Fraud—A person who is the subject of a final order for violation of INA §274C, 8 USC §1324c
(relating to civil fines for falsely making or using fraudulent documents under the INA or using someone else’s
lawfully issued document) is inadmissible. INA §212(a)(6)(F), 8 USC §1182(a)(6)(F), 2 8CFR §68.52(e); 22
CFR §40.66; 9 FAM 302.9-8; AFM at 40.6.2(f). A waiver is authorized for humanitarian purposes or to ensure
family unity for a returning LPR or a person seeking an IV or AOS under the family-preference or IR
categories, if she was not previously subject to a civil money penalty under INA §274C and the offense was
committed solely to assist and/or support a spouse or child (and no other person). INA §212(d)(12), 8 USC
§1182(d)(12); 9 FAM 302.9-8(D)(1). DOS states family relationship had to exist at time of fraud, not just at
time of waiver. Cable, DOS, 96-State-226596 (Oct. 31, 1996), reprinted in 73 No. 43 Interpreter Releases
1588–90 (Nov. 11, 1996). No judicial review of a waiver denial. The Service should not institute INA §274C
proceedings where there is an I-485 on file and an I-601 waiver to forgive fraud unless the applications are
denied. Memo, Puleo, Acting Exec. Assoc. Comm. Operations (HQ 274C-C) (Mar. 25, 1993), reprinted in 12
AILA Monthly Mailing 922–23 (Dec. 1993); Memo, Rees, Gen. Counsel, INS (May 18, 1993). However, the
BIA has held that an INA §212(i) waiver is unavailable to waive §212(a)(6)(F) arising from a final order under
INA §274C. Matter of Lazarte, 21 I&N Dec. 214 (BIA 1996) [distinguishing INS view as exercise of
prosecutorial discretion]. Legislative history states that this waiver also is applicable to employment-based
immigrants. H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. at 227 (1996).
9. Student Visa Abuse [INA §212(a)(6)(G), 8 USC §1182(a)(6)(G), 22 CFR §40.67; 9 FAM 302.9-9; AFM at
40.6.2(g)]—A student who enters the U.S. to study at a private institution and then “terminates or abandons”
the private institution and studies at a public school in violation of INA §214(m)(2) is inadmissible for 5 years.
This section applies to persons who obtain F-1 status and then pursue a course of study at a public
elementary school or publicly funded adult education program. 9 FAM 302.9-9(B); AFM at 40.6.2(g)(2)(ii). It
also applies to public secondary schools (grades 9-12) unless the F-1’s study does not exceed 12 months
and he reimburses the public institution the full, unsubsidized, per capita cost of providing the education for
the period of the student’s attendance. If a new I-20 is sought the secondary school must indicate on the I-20
that the payment has been made and the amount of the payment. Minutes, AILA-DOS, Liaison Meeting (Oct.
6, 2016), Q.17, AILA Doc. No. 16100705. If the I-20 does not reflect the payment and the applicant does not
present a notarized stated from the DSO the consular officer may refuse the F-1. Id. This section also only
applies to students who obtain or extend their student status beginning 60 days after Sept. 30, 1996. IIRIRA
§346(b). Similarly, the section only applies if the student actually attends the public school. The section is
violated only if the student terminates or abandons the private institution and not where the private institution
ceases to operate. Lee v. Mukasey, 527 F.3d 1103 (10th Cir. 2008) [student eligible for AOS; not inadmissible
for attending public school where her private school closed]. This section does not apply to: (i) persons who
remain outside of the U.S. for 5 years after violating INA §214(m); (ii) students in public schools in J-1, J-2, E,
F-2, L-2 or H-4 status; (iii) undocumented students or students studying illegally in public schools such as B-2
overstays; (iv) F-1 students who violated their status in other ways, are out-of-status, and then attend.
F. Fraud and Material Misrepresentation
1. In General—Aliens who, by fraud or willfully misrepresenting a material fact, seek to procure or have sought
to procure or have procured a visa, other documentation or admission into the U.S. or “other benefits”
provided under the Act are inadmissible. INA §212(a)(6)(C)(i), 8 USC §1182(a)(6)(C)(i). See also 22 CFR
§40.63, 9 FAM 302.9-4; AFM at 40.6.2(c); 8 USCIS-PM, Pt. J. Page 157
Under the previous statute, aliens who “seeks to enter” by fraud were only barred on that occasion. However,
under the Marriage Fraud Amendments Act of 1986, PL 99-639, all misrepresentations permanently bar
entry. Moreover, INA §212(a)(6)(C) applies to procuring “other benefit[s] provided under the Act.” Other
benefits under the INA include, inter alia, parole, employment authorization, C/S, E/S, waivers, AOS, and
stays of deportation. 8 USCIS-PM, Pt. J, Ch. 3 ¶B.3. The BIA has broadly interpreted this to include a
conviction for possession of a false Texas birth certificate with intent to defraud the U.S. by obtaining a U.S.
passport. Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 563 (BIA 1999), aff’d, Cervantes-Gonzales v. INS,
244 F.3d 1001 (9th Cir. 2001); but see Rosenberg dissent in 22 I&N Dec. at 575.
The statute encompasses both “fraud” and “willfully misrepresenting a material fact.” Fraud typically involves
a false representation of a material fact with knowledge of its falsity and intent to deceive. And it must be
believed and acted upon. Matter of G-, 7 I&N Dec. 161 (BIA 1956). Willful misrepresentation must be willful
but does not require an intent to deceive; nor evidence that the officer believes or acted upon the false
representation. Matter of S- & B-C-, 9 I&N Dec. 435, 448-49 (AG 1961). 9 FAM 302.9-4(B)(2). It does,
however, require that there be a misrepresentation. Alfaro v. U.S. Att’y Gen., 862 F.3d 1261 (11th Cir. 2017)
[government failed to prove that respondent committed a misrepresentation on his application for AOS by not
disclosing an “arrest” when he stated that he was put in a make-shift jail by fellow Contras in the Nicaraguan
jungle because such detention could not be considered an arrest in ordinary language].
USCIS recognizes that the severe penalty of a fraud/misrepresentation finding: “When making the
inadmissibility determination the officer should keep in mind the severe nature of the penalty for fraud or
willful misrepresentation. The person will be barred from admission for the rest of his or her life unless the
person qualifies for and is granted a waiver.” 8 USCIS-PM, Pt. J, Ch. 2 ¶E.
2. Presumption for Certain Nonimmigrants (90-Day “Rule”)—Where a person enters on a nonimmigrant

visa (such as a B-2) and then, within 90 days of entry, acts in a manner inconsistent with the representations
he made to a consular officer at the time of the visa application or to DHS at the time of admission, DOS
“may presume” that the applicant’s noncompliance (such as filing an adjustment of status) “were willful
misrepresentations of his or her intention in seeking a visa or entry.” 9 FAM 302.9-4(B)(3)(g)(2)(a). The prior
FAM section set a 30-60 day rule which is now expanded to 90 days. Activity which would be considered to
violate the 90-day rule if it occurs within that period includes: (i) engaging in unauthorized employment; (ii)
enrolling in a course of study where the NIV was not authorized to do so (such as entry in B status); (iii)
marrying a USC or LPR and taking up residence in the U.S. when the NIV status prohibits immigrant intent
such as a B/F visa; or (iv) undertaking any other activity for which a change of status or an adjustment of
status would be required without the benefit of such a c/s or AOS. 9 FAM 302.9-4(B)(3)(g)(2)(b). An applicant
has the right to rebut the presumption but failure to offer proof “most likely” will result in a finding of willful
misrepresentation and ineligibility. 9 FAM 302.9-4(B)(3)(g)(2)(b). After 90 days there is no presumption of
willful misrepresentation; however the DOS is not barred from making a finding of willful misrepresentation if
the facts warrant it. 9 FAM 302.9-4(B)(3)(h)(2); Cable, DOS, 17-State-95090 (Sept. 16, 2017), AILA Doc. No.
17100431 [applying to all adjudications after Sept. 1, 2017]. See also 8 USCIS-PM, Pt. J, Ch. 3 ¶A.3.
3. Fraudulent Conduct of Parent Should Not Be Attributed to Child—Singh v. Gonzales, 451 F.3d 400 (6th
Cir. 2006) [distinguishing Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987) and Senica v. INS, 16 F.3d 1013 (9th
Cir. 1994); under the second prong of Chevron,the imputation of fraudulent conduct to children is not a
reasonable extension of case law]; 8 USCIS-PM, Pt. J, Ch. 3 ¶D.5 [persons who are mentally incompetent
and small children judged to be incapable of independently forming an intent to defraud should not be
deemed inadmissible if applications submitted on their behalf contain false representations].
4. Fraudulent Conduct of Employer Not Necessarily Attributed to Beneficiary of Petition—Matter of

___(Chicago, AAO Apr. 27, 2015), AILA Doc. No. 15061204 [fraud by employer resulting in criminal
prosecution not attributable to beneficiary of I-129 where there was insufficient evidence in the record
demonstrating employee’s involvement].
5. Seeking Asylum As Indicator—Saeedi v. Roark, 803 F.Supp.2d 381 (W.D.N.C. 2011) [in AOS context, the
court reversed USCIS determination as lacking substantial evidence that person committed fraud/material
misrepresentation where applicant sought asylum 4 months after B-2 entry Page 158 and inquired about
reviving his former LPR status because discussing his “flight to freedom” or his “hope” that he may remain in
the U.S. is not the same as intending to stay].
6. Fraud Indicators—USCIS uses a series of fraud indicators during interviews and in reviewing documents in
marriage, other family-based, employment-based, religious workers, student visas, asylum and I-90s, I-131,
and I-765s cases. The criteria extend to general behavioral indicators such as the attorney attempting to
distract, mislead, prompt or interrupt the interview to over-submissions, suspect documents, staged photos,
and multiple filings. USCIS, Fraud Referral Sheet, AILA Doc. No. 10012861
7. Misrepresentation—The first issue is always whether there was a misrepresentation at all. At least one
circuit has concluded that “giving incomplete information that obfuscates possible involvement” in a
inadmissible ground constitutes a misrepresentation. Asentic v. Sessions, 873 F.3d 974, 980 (7th Cir. 2017)
[obfuscating past involvement in atrocities in Serbia by stating on the form only that he fled Bosnia was a
misrepresentation]. But “silence or the failure to volunteer information does not in itself constitute a
misrepresentation.” 9 FAM 302.9-4(3)(b).
8. Materiality
8.a. In General
(1) In Maslenjak v. U.S., 582 U.S. __, __, 137 S.Ct. 1918, 1928-30 (2017), the Court discussed
materiality in the context of a conviction for procuring naturalization contrary to law under 18 USC
§1425(a). A person makes a material misrepresentation when the government proves: (1) the fact
which they misrepresented was directly disqualifying, such as lying about one’s travel history or
whether one was convicted of an aggravated felony in attempting to obtain citizenship or (2a) the
misrepresented fact would be sufficient to prompt “reasonable officials … to undertake further
investigation” and (2b) that the investigation “ ’would predictably have disclosed’ [quoting Brennan, J.
in Kungys] some legal disqualification.” Maslenjak, 582 at ___, 137 S.Ct. at 1929. But even when the
government can make the two part “investigative” showing, a party may be able to overcome it by
showing through a preponderance of the evidence that she was otherwise qualified even if she
concealed or misrepresented facts that suggest the opposite. Maslenjak, 582 U.S. __, 137 S.Ct. at
1930; Kungys v. U.S., 485 U.S. 759 (1988) [materiality is a legal question of whether
“misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to
affect the official decision.”]; U.S. v. Gaudin, 515 U.S. 506, 512 (1995) [materiality is a mixed question
of law and fact]. In Kungys, the Court established a 4-part analysis to determine judicial
denaturalization proceedings: (1) the applicant must have misrepresented or concealed a fact; (2) the
misrepresentation or concealment must have been willful; (3) the fact must have been material; and (4)
the applicant must have procured the benefit. Kungys, 485 U.S. at 767. The government’s finding of
materiality establishes a presumption and shifts the burden to the applicant to establish statutory
eligibility for the benefit for purposes of part (4) of the test. Id. at 777. In Monter v. Gonzales, 430 F.3d
546 (2d Cir. 2005), the Second Circuit adopted the Kungys test in the context of an I-751 petition. The
court found that respondent’s failure to list a separate address for his wife on the I-751 was material
but that the IJ’s refusal to change venue deprived him of the opportunity to rebut the presumption and
to show he was nevertheless qualified to receive his permanent residency. See also Toribio-Chavez v.
Holder, 611 F.3d 57, 63-64 (1st Cir. 2010) [failure to disclose all children had a natural tendency to
influence AOS decision because disclosure would have led to questions about his “former” wife];
Emokah v. Mukasey, 523 F.3d 110, 117 (2d Cir. 2008) [petitioner failed to rebut presumption of
materiality for using a false name on a B-2 visa application, where she could not demonstrate that
“knowledge of [the] true circumstances would not have led to the denial of the benefit].” The Ninth
Circuit in Forbes v. INS, 48 F.3d 439, 443 (9th Cir. 1995), applied the Kungys test, particularly the
concurring opinion of Justice Brennan that the government must “produce evidence sufficient to raise a
fair inference that a statutory disqualifying fact actually existed,” and determined that the failure of an
IV applicant to disclose an arrest that ultimately resulted in dismissal was not material. Solis-Muela v.
INS, 13 F.3d 372 (10th Cir. 1993) [reading Kungys to result in material misrepresentation where
applicant admitted arrest but failed to disclose conviction]. See also 9 FAM 302.9-4(B)(5)(b)(3)(c) [“if
the true facts do not disclose a ground of inadmissibility the facts are Page 159 not material”]; USCIS,
Adjudicating I-601 Waivers (Aug. 2015) at 136, AILA Doc. No. 15082741a [“Generally, a
misrepresentation is material if it enabled (if acted upon) or would have enabled the alien to receive a
benefit for which he or she would not otherwise have been eligible” citing Kungys and Tijam]. In the
Eleventh Circuit, the court determined that materiality required disclosure that would make the
inadmissibility “apparent” and “would have adversely affected [the] application for permanent
residence.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 812 (11th Cir. 2006) [material misrepresentation where
respondent answered “no” to a question whether he had ever been convicted, despite his conviction
being vacated subsequent to the application]; Bazzi v. Holder, 746 F.3d 640 (6th Cir. 2013) [upholding
BIA finding of a material misrepresentation based upon a sham divorce to obtain a benefit as an
unmarried son]; Suite v. INS, 594 F.2d 972 (3d Cir. 1979); Espinoza-Espinoza v. INS, 554 F.2d 921 (9th
Cir. 1977); U.S. v. Rebelo, 646 F.Supp.2d 682, 698–99 (D.N.J. 2009) [granted denaturalization where
Kungys was applied and where officer submitted affidavit attesting that applicant’s failure to fully
disclose and provide correct information regarding his criminal history, despite checking box that said
he had a criminal history, would have resulted in a denial]; Matter of Healy & Goodchild, 17 I&N Dec.
22 (BIA 1979); But see U.S. v. Matsumaru, 244 F.3d 1092, 1101–02 (9th Cir. 2001) [upholding
conviction of immigration lawyer on theory that to be material, the misrepresentation need not have
actually affected the consular officer’s decision, only that it was “capable of affecting or influencing a
governmental decision.”]; Mwongera v. INS, 187 F.3d 323, 330–31 (3d Cir. 1999) [distinguishing
Kungys as applying only to denaturalization cases and utilizing standard whether statements “shut off
a line of inquiry”];
(2) BIA Criteria for Materiality—In Matter of D-R-, 27 I&N Dec. 105, 108-113 (BIA 2017) the Board after
remand from the Ninth Circuit of it previous decision in Matter of D-R-, 25 I&N Dec. 445, 450-51 (BIA
2011) rejected the Ninth Circuit’s decision in Forbes that the standard for materiality required that a
presumption of ineligibility does not arise unless there is a “fair inference” that a statutory disqualifying
fact actually existed that would have made the person ineligible for the benefit. Rejecting Forbes under
Brand X the Board narrowly read Maslenjak and collapsed the tests in Kungys and Matter of Bosuego,
17 I&N Dec. 125 (BIA 1979; 1980) and held that Kungys’ “natural tendency” test is the same as
determining whether “the misrepresentation tends to shut off a line of inquiry that is relevant to the
alien’s admissibility and that would predictably have disclosed other facts relevant to his or her
eligibility for a visa, other documentation, or admission to the United States.” 27 I&N Dec. at 113. The
Board also held that once DHS met this burden of proof, the burden shifted to the applicant “to
establish that no proper determination of inadmissibility could have been made.” Id. See also Matter of
Ng, 17 I&N Dec. 536 (BIA 1980) [a misrepresentation of identity is not a misrepresentation of a
material fact unless it tends to shut off a line of inquiry which is relevant to a person’s eligibility for
status or might have resulted in a proper determination he was excludable]; Matter of Gilikevorkian, 14
I&N Dec. 454 (BIA 1973) [false ID adopted for reasons unrelated to obtaining admission is not a
material misrepresentation]; Matter of S-& B-C, 9 I&N Dec. 436 (BIA 1960) [materiality is a fact that
would make an alien excludable or shut off a line of inquiry that may have resulted in exclusion].
(3) AAO Criteria—Matter of Zadran, A71 742 204 (AAO Bangkok Feb. 28, 2011), reported in 16 Bender’s
Immigr. Bull. 1089, 1103 (July 1, 2011) [when biological son represented himself as step-son during an
IV interview, the AAO determined it was not material and he otherwise qualified]; Matter of ___ (AAO,
Chicago, Jan. 18, 2012), 2012 WL 4713377 [failure to disclose previous divorce was not material to
petition as married son of a USC]. Materiality relates to the person’s state of mind. Garcia v. INS, 31
F.3d 441, 443-44 (7th Cir. 1994).
8.b. Materiality Relates to Presentation of Falsity to a Government Official—Misrepresentation must be

made before consular or DHS officer. 9 FAM 302.9-4(B)(3)(c); 8 USCIS-PM, Pt. J, Ch. 3 ¶F. The charge
cannot be sustained in regard to primary inspection unless the fraud was practiced on a U.S. government
official. Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994) [applicant with photo-switch passport gave his real
name and stated that documents were invalid at inspection]; Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA
1991) [Cuban asylum seekers boarded Page 160 aircraft in Spain with photo-switch passports, but who
upon entry to U.S. did not seek to use passports and instead claimed asylum, did not violate section.
Shirdel limited to TWOV cases]; Matter of L-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Areguillin, 17 I&N
Dec. 308 (BIA 1980); Matter of ___(AAO Chicago Mar. 27, 2007), reported in 16 Bender’s Immigr. Bull.
1775, 1800 (Nov. 15, 2011) [where applicant, Polish national, came across the border at Niagara Falls in a
car operated by someone else and she was not stopped by immigration, nor asked any questions and an
I-94 was simply placed in her passport there was no material misrepresentation and AAO withdrew the
CSC decision]. But see Ymeri v. Ashcroft, 387 F.3d 12, 18–20 (1st Cir. 2004) [sustaining charge where
Albanian TWOVs presented Greek passports but admitted immediately when questioned that their
documents were fraudulent]; Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984). Because the
misrepresentation must be to a U.S. government official, counterfeit documents or documents obtained by
fraud or misrepresentation presented to foreign government officials or other individuals are “not relevant”
to this provision. 9 FAM 302.9-4(B)(7)(a)(3)
8.c. Timely Retraction—”A timely retraction will serve to purge a misrepresentation and remove it from
further consideration.” 9 FAM 302.9-4(B)(3)(f)(1); Matter of R-R-, 3 I&N Dec. 823 (BIA 1949); Matter of M-,
9 I&N Dec. 118 (BIA 1960). But it must be timely and the disclosure must be imminent. Matter of Namio,
14 I&N Dec. 412 (BIA 1973) [recantation made a year later and after disclosure of falsity was imminent
was insufficient]; Eid v. Thompson, 749 F.3d 118, 125 (3d Cir. 2014) [retraction of fraudulent I-130 after
approval and after applicant had been questioned at I-485 interview was not timely]; Valdez-Munoz v.
Holder, 623 F.3d 1304, 1309-10 (9th Cir. 2010) [recantation after confrontation of false claim to U.S.
citizenship and knowledge that the false representation will not succeed is neither timely nor voluntary]; 8
USCIS-PM, Pt. J, Ch. 3 ¶D.6. But see Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014) [defining
timeliness under BIA decisions as “a question whether the petitioner retracted her false statement before
its falsity had been or was about to be exposed” and reversing denial of cancellation for lack of GMC
where applicant submitted false statements on an asylum application in 1993, repeated the lies in a 2007
asylum interview, but without prompting recanted the lies in his cancellation hearing before the IJ in
2011].According to USCIS, the retraction must be voluntary and in the same proceeding. 8 USCIS-PM, Pt.
J, Ch. 3 ¶D.6; USCIS, Immigrant Waivers: Procedures for Adjudication of Form I-601 For Overseas
Adjudication Officers (Apr. 28, 2009), at 31, AILA Doc. No. 09061772 . “If the applicant has personally
appeared and been interviewed, the retraction must have been made during the initial interview with the
officer.” 9 FAM 302.9-4(B)(3)(f)(1). “If the misrepresentation has been noted in a ‘mail-order’ application,
the applicant must be called in for an interview and the retraction must be made during the course
thereof.” Id. “A retraction can be voluntary and timely if made in response to an officer’s questions during
which the officer gives the applicant a chance to explain or correct a potential misrepresentation.” Id. But
note: “A retraction made before a routine primary inspection at a port of entry may be timely, depending
on the nature, circumstances, and timing of the specific retraction. Generally, retractions in secondary
inspection based on a misrepresentation in or before primary inspection at a port of entry would not be
considered timely.” 9 FAM 302.9-4(B)(3)(f)(2). Willful material misrepresentations made as part of a
petition to support an AOS or IV cannot be considered timely retracted at the AOS or IV interview. Id.
8.d. Silence or Failure to Volunteer Information—A person’s silence or failure to volunteer information does
not, in and of itself, constitute material misrepresentation for purposes of determining inadmissibility
because it doesn’t establish a “conscious concealment.” 8 USCIS-PM, Pt. J, Ch. 3 ¶¶ D.2–3; Matter of G-,
6 I&N Dec. 9 (BIA 1953) superseded on other issues by Matter of F-M-, 7 I&N Dec. 420 (BIA 1957); 9
FAM 302.9-4(B)(3)(b) [An applicant’s “silence or the failure to volunteer information does not in itself
constitute a misrepresentation.”].
8.e. False Representation for Another—Misrepresentation must be made on the person’s own application. A
misrepresentation made in connection with some other person’s application does not make the alien
inadmissible for a material misrepresentation. 8 USCIS-PM, Pt. J, Ch. 3 ¶C.2; Matter of M-R-, 6 I&N Dec.
259 (BIA 1954) but could make her inadmissible for alien smuggling. 9 FAM 302.9-4(B)(3)(d). But see
Matter of X-, (Baltimore, AAO May 24, 2013), reported in 19 Bender’s Immigr. Bull. 1040(Sept. 15, 2014)
[individual adamant that brother was a USC when stopped at the border without more is not alien
smuggling] Page 161
8.f. DOS Additional Materiality Questions Characterized as the “Rule of Probability”—DOS does not
consider the following to be material:
Where visa eligibility has been resolved against the applicant, a subsequent discovery that he lied
is not material 9 FAM 302.9-4(B)(5)(c)(2)(a);
Where the truth of the matters is available through the visa lookout system or the post’s own files,
the applicant’s misrepresentation did not cut off a line of inquiry. 9 FAM 302.9-4(B)(5)(c)(2)(b);
Where the applicant misrepresents the fact that he applied or was previously refused an NIV, the
failure to disclose does not, in and of itself, constitute materiality 9 FAM 302.9-4(B)(5)(c)(4)(b)(iii)-
(iv);
Where applicant misrepresents prior application for an IV it is not material unless it concealed the
existence of an independent ground of inadmissibility 9 FAM 302.9-4(B)(5)(c)(4)(b)(ii);
Where an applicant applies for an NIV after failing to disclose he has applied for AOS or an IV it
may not be material where there were intervening events between the IV registration and the NIV
application such as a marriage, purchase of a new home, a substantial investment in the local
economy, or business or familial emergencies in the U.S.;
Where an applicant misrepresents his criminal conviction for a CIMT but it comes within the
sentencing exception and he was therefore not ineligible. 9 FAM 302.9-4(B)(5)(b)(2);
Where applicant misrepresented his qualifications for a visa but the facts alone were sufficient to
establish qualification for another visa it would not be material. For example, if the son or daughter
of a USC were to misrepresent his status as unmarried to qualify for first preference but his
marriage qualified him for third preference and the third preference was current, the
misrepresentation would not be material. 9 FAM 302.9-4(B)(6)(a)(i);
Where the applicant misrepresents his qualifications, it is not material if the true facts still
established sufficient qualifications. 9 FAM 302.9-4(B)(6)(a)(ii).
9. Willfulness
9.a. In General—A misrepresentation is willful if it was deliberate and voluntary. Matter of D-R, 25 I&N Dec.
445, 451 n.3 (BIA 2011) [where respondent was advised by refugee organization not to put his
employment as a police officer on his refugee application because he would not be approved, his
misrepresentation was “deliberate and voluntary” and the failure to disclose “intentional”]; Asentic v.
Sessions, 873 F.3d 974, 980-81 (7th Cir. 2017) [advice to withhold information by IOM official of
applicant’s VRS service in Bosnia does not negate the willfulness aspect of his misrepresentation
because he deliberately and voluntarily omitted it on his application]; Li v. Lynch, 837 F.3d 127, 131 (1st
Cir. 2016) [petitioner deliberately and voluntarily used a fraudulent Japanese passport to gain entry]
Toribio-Chavez v. Holder, 611 F.3d 57, 63-64 (1st Cir. 2010) [applicant aware of previous marriage that he
did not disclose]; Parlak v. Holder, 578 F.3d 457, 464–65 (6th Cir. 2009) [following Forbes the omission of
prior arrests on AOS and naturalization applications to unambiguous questions was some evidence of
willfulness]; Emokah v. Mukasey, 523 F.3d 110, 117 (2d Cir. 2008) [innocent mistake, negligence or
inadvertence cannot support willfulness but where petitioner intentionally used a different name and
pretended to be the wife of a wealthy businessman to obtain a visa her actions were willful]; Falaja v.
Gonzales, 418 F.3d 889, 897–99 (8th Cir. 2005) [inconsistencies in asylum application were the basis for
an adverse credibility finding and were willfully made; upholding AOS denial under §212(a)(6)(C)(i)];
Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999) [does not need to show intent to deceive where
person put on visa application that he stayed in U.S. for 6 months when it was 11 months]; Witter v. INS,
113 F.3d 549 (5th Cir. 1997); Espinoza-Espinoza v. INS, 554 F.2d 921 (9th Cir. 1977). But see Xing Yang
Yang v. Holder, 770 F.3d 294, 302-04 (4th Cir. 2014) [adverse credibility and willful misrepresentation are
distinct legal concepts and inconsistencies in an asylum application and hearing testimony do not equate
to a willful misrepresentation]. Knowledge of the falsity is necessary. Ortiz-Bouchet v. U.S. Att’y Gen., 714
F.3d 1353, 1356-57 (11th Cir. 2013) [where third person filed false documents that Page 162 applicant did
not sign, IJ reversed because no showing of willful misrepresentation even if applicant had knowledge of
false documents]; Atunnise v. Mukasey, 523 F.3d 830, 834–38 (7th Cir. 2008) [the government had the
burden to prove that a K-3 applicant was inadmissible at the border and the court determined that an
applicant’s answer “no” to a multipart (“incoherent”) question on DS-156 form was insufficient to sustain
the charge]; Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994);
U.S. v. Rebelo, 646 F.Supp.2d 682, 696–98 (D.N.J. 2009) [granted denaturalization where willfulness was
not mitigated by claim that applicant’s lawyer gave incorrect advice regarding the failure to fully disclose
charges and ultimate conviction on naturalization application]; Matter of ___, London (AAO Aug. 28,
2012), AILA Doc. No. 12100270 [failure to include larceny conviction as CIMT on I-94W (Visa Waiver) was
not “willful” given facts and acknowledging that the term moral turpitude “is not in common usage, and it is
unlikely that the average person is aware of its meaning and application in U.S. immigration law”]. In
Bryan v. U.S., 524 U.S. 184, 193 (1998), the Court, in the context of a criminal statute, defined willfully as
“the defendant acted with an evil-meaning mind, that is to say that he acted with knowledge that his
conduct was unlawful.” See also U.S. v. Chowdhury, 169 F.3d 402, 406–07 (6th Cir. 1999) [regarding
criminal charge of marriage fraud]. In an asylum case, a negative credibility finding alone is not the
equivalent a willful misrepresentation “and the one does not necessarily lead to the other…” Singh v.
Gonzales, 413 F.3d 156, 160–61 (1st Cir. 2005) [ineligible for AOS under §245(i) because of several
intentional misrepresentations]; Matter of ___(AAO Nov. 24, 2008), reported in 14 Bender’s Immigr. Bull.
691(June 1, 2009) [applicant’s representation to consular officer that she was not married when her prior
marriage was not legally valid is not a willful misrepresentation]. See also 9 FAM 302.9-4(B)(4)(a) [willfully
does not include accidental, inadvertent, or an honest mistaken belief].
9.b. Deliberate avoidance or willful blindness—Where an applicant claims he did not know what he was
signing because of language difficulties or otherwise, the government will assert that his actions constitute
deliberate avoidance or willful blindness and do not overcome his obligations of filing forms under penalty
of perjury. Matter of ___, LIN 06 256 51548,(AAO, NSC Apr. 9, 2010) at pp.7-10, AILA Doc. No. 10121033
[rejected defense to material misrepresentation and fraud in submission of fraudulent documents for
extraordinary ability petition that petitioner did not speak English well and went to notary who defrauded
him]. See also Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765–70 (2011), for a discussion
by the Supreme Court of “willful blindness” in the civil context finding that a “defendant must subjectively
believe that there is a high probability that a fact exists and… must take deliberate actions to avoid
learning of that fact.” But see Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353, 1356-57 (11th Cir. 2013)
[where third person filed false documents that applicant did not sign, IJ reversed because no showing of
willful misrepresentation even if applicant had knowledge of false documents].
9.c. Advice of Counsel or Expert—Although the BIA generally takes the view that advice of counsel is not a
defense, reliance on professional advice may be an affirmative defense where all the facts were fully
disclosed to the attorney and there was good faith reliance on the advice. See e.g., Abusamhadaneh v.
Taylor, 873 F.Supp.2d 682, 717-18 (E.D. Va. 2012) (Cacheris, DJ) [reliance on counsel’s advice that
response to questions regarding membership and association on his naturalization application did not
include religious organization was reasonable and a defense to government claim that applicant lacked
good moral character because he failed to disclose it]. But see 9 FAM 302.9-4(B)(3)(e) [pursuing an
application through an agent or attorney does not insulate the applicant from liability “if it is established
that the alien was aware of the action being taken in furtherance of the application”]; 9 FAM 302.9-4(B)(4)
(b) [an applicant acting on the advice of another is considered to be exercising conscious and deliberate
will and it is not defense to say that the misrepresentation was made because someone else advised the
action “unless it is found that the alien lacked the capacity to exercise judgment”].
9.d. Under 18 or Mental Incapacity—USCIS and DOS have differing views of whether someone under 18
can have the capacity to make a willful misrepresentation. USCIS’s position is that a person is not per se
exempt at any age or state of mental incapacity. 8 USCIS-PM, Pt. J, Ch. 3 ¶D.5. The factors to be
considered are: age, level of education, background, mental capacity, level of understanding, ability to
appreciate the difference between true and false, and other relevant circumstances. Id. USCIS places the
burden on the applicant to prove “clearly and Page 163 beyond a doubt” that as a person under 18 or as a
person who has cognitive or other disabilities that he lacked the capacity to make a willful
misrepresentation. Id. At least one court agrees, Pike v. Johnson, 103 F.Supp.3d 1362, 1367-68 (N.D. Ga.
2015) [citing USCIS-PM and finding that 15-year-old did not lack capacity to make misrepresentation]. In
contrast to USCIS, the DOS has traditionally held the view that a child under 15 cannot act willfully for
purposes of a material misrepresentation, former 9 FAM 40.63 N.5.3. For children 15-16 years old, DOS
officers were instructed to investigate whether the child was acting at the direction of an adult. And
children 17 and over were presumed to be acting willfully. But see 9 FAM 302.9-5(B)(1)(a)(2) [adopting the
view under the false-claim-to-citizenship provision that a person under 18 (whatever age) must
demonstrate that they lacked the capacity to understand the consequences of their actions].
10. Intent to Deceive—Fraud requires intent to deceive, but material misrepresentation generally does not.
Parlak v. Holder, 578 F.3d 457, 463–64 (6th Cir. 2009) [where willful misrepresentation was found, a finding of
intent to deceive was unnecessary]; Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999); Forbes v. INS, 48
F.3d 439, 442 (9th Cir. 1995); Matter of Tijam, 22 I&N Dec. 408, 424–25 (BIA 1998). But see Ampe v.
Johnson, 157 F.Supp.3d 1, 8-18 (D.D.C. 2016) [court declined to grant summary judgment to government in
case involving naturalization denial based upon INA §212(a)(6)(C)(i) because a finding of fraud or material
misrepresentation goes to the petitioner’s state of mind and the government must prove either an intent to
mislead or knowledge of the error].
11. “Other Documentation” and “Other Benefit” Defined—A fraud or willful; misrepresentation of a material
fact must be to procure a visa, “other documentation,” admission to the U.S. or “other benefit provided under
this Act…” INA §212(a)(6)(C)(i). DOS defines “other documents” as including, but not limited to, reentry
permits, border crossing cards, ESTA, U.S. Coast Guard ID cards, and U.S. passports. 9 FAM 302.9-4(B)(7)
(a)(1). Also documents such as I-20s, petitions, labor certifications, or other documents in support of a visa
application would be included. 302.9-4(B)(7)(a)(2). The term other benefit refers to “any immigration benefit
listed in the INA” including but not limited to requests for E/S, C/S, I-131 (consent to reapply for admission),
waivers, employment authorization, advance parole, VD and AOS. 9 FAM 302.9-4(B)(7)(b). A person may
also be deemed inadmissible if he submitted a form in support of an immigration benefit such as EAD, or the
document was used to gain another immigration benefit such as parole, or advance parole. 9 FAM 302.9-
4(B)(7)(c).
12. Burden of Proof
12.a. In General—For a detailed discussion regarding the government’s burden of proof regarding
materiality and willfulness, see Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) (Rosenberg concurring and
dissenting). The government has the burden by clear and convincing evidence, to prove the fraud/material
misrepresentation charge in removal proceedings challenging admissibility. Atunnise v. Mukasey, 523 F.3d
830, 834–38 (7th Cir. 2008) [the government had the burden to prove that a K-3 applicant was
inadmissible at the border; an applicant’s answer “no” to a multipart (“incoherent”) question on a DS-156
form at the embassy was insufficient to sustain the charge]. The government’s burden will often preclude
a summary decision. Ampe v. Johnson, 157 F.Supp.3d 1, 8-18 (D.D.C. 2016) [court declined to grant
summary judgment to government in case involving naturalization denial based upon INA §212(a)(6)(C)(i)
because a finding of fraud or material misrepresentation goes to the petitioner’s state of mind]. See also
Patel v. Sessions, 868 F.3d 719, 725-26 (8th Cir. 2017) [reversed BIA refusal to remand removal order
where second husband filed petition after I-751 involving first husband was denied but there was no claim
or finding of fraud and no adverse credibility finding that would raise the INA §212(a)(6)(C)(i) bar
suggested by the BIA]. But note Matter of Bett, 26 I&N Dec. 437 (BIA 2014) [in context of I-9 and false
claim to USC, the applicant’s statements that he did not remember signing I-9 was insufficient to meet
burden of admissibility by clear and convincing evidence for AOS in removal]. Under DOS guidelines the
misrepresentation must be clearly and factually established but it may only be established by a “reason to
believe” standard. 9 FAM 302.9-4(B)(3)(g)(1)(d)
12.b. Information Developed at POE by CBP—If CBP in allowing someone to withdraw her application for
admission or in summarily removing her does not make an explicit INA §212(a)(6)(C)(i) finding, the
withdrawal or inadmissibility on other grounds is not a basis alone to find fraud or material
misrepresentation. However, a consular officer may use the factual information on a Page 164 Form I-275
(allowing withdrawal) as the basis for a determination. Similarly, if CBP has entered a 212(a)(6)(C)(i)
finding in the lookout system, a consular officer may assume that a formal finding has been made. 9 FAM
302.9-4(B)(6)
13. Relation-Back Doctrine—The relation-back doctrine generally cannot be used to cure fraud. The Service
has recognized that a past marriage that is annulled ab initio may still result in a fraud charge. Garcia v. INS,
31 F.3d 441, 443–44 (7th Cir. 1994) [upholding deportation for material misrepresentation on entry where
person obtained ab initio order that marriage was not valid because such order should not be given effect to
cover up a fraud]; Hendrix v. INS, 583 F.2d 1102 (9th Cir. 1978). Similarly, vacating an annulment to validate
a marriage ab initio does not cure the fraud. Witter v. INS, 113 F.3d 549 (5th Cir. 1997). But see Mayo v.
Schiltgen, 921 F.2d 177 (8th Cir. 1990).
14. SAW and Legalization Fraud—Cannot use fraud committed in SAW or Legalization program to make a
212(a)(6)(C)(i) finding. INA §210(b)(6), 8 USC §1160(b)(6). Matter of ___, A90 666 357 (AAO July 1, 2008),
reprinted in 85 No. 31 Interpreter Releases 2185 (Aug. 11, 2008); Matter of Masri, 22 I&N Dec. 1145 (BIA
1999). However, if USCIS obtains information about SAW fraud in another manner, the information can be
used. Uddin v. Mayorkas, 862 F.Supp.2d 391 (E.D. Pa. 2012) [where applicant for AOS presented passport
that indicated he had participated in SAW program, USCIS could deny him AOS on grounds of a material
misrepresentation when he never listed a place of employment related to agricultural work and testified
during AOS interview that all of his work was not agricultural related]. See also Soriano-Vino v. Holder, 653
F.3d 1096 (9th Cir. 2011) [use of information from questioning LPR returning from abroad about his
employment history]; Lopez v. Ezell, 716 F.Supp. 443, 444 (S.D. Cal. 1989) [court rejected effort to enjoin
border patrol agents from asking individuals with stamps in their passports about SAW involvement as court
found it did not violate SAW prohibitions].
15. Consular Advisory Opinion—The consular officer is directed to seek advisory opinions where the denial
focused on whether the misrepresentation shut off a line of inquiry—the so-called Rule of Probability. 9 FAM
302.9-4(C)(1)-(2). Advisory opinions for inadmissibility under the 30/60 day rule must be requested by a
consular officer. 9 FAM 302.9-4(B)(3)(h)(1)
16. INA §212(a)(6)(C)(i) in Lieu of INA §204(c)—Court upheld BIA’s denial of employment-based AOS where
it found that respondent’s previous marriage constituted a fraudulent scheme to obtain an immigration benefit
under INA §212(a)(6)(C)(i) without addressing INA §204(c). Coelho v. Gonzales, 452 F.3d 104 (1st Cir. 2006).
See also Zyapkov v. Lynch, 817 F.3d 556 (7th Cir. 2016) [upheld denial of AOS under INA §212(a)(6)(C)(i),
despite daughter’s I-130 approve petition, where IJ believed first marriage was fraudulent and respondent
provided false testimony]; Agyei v. Holder, 729 F.3d 6 (1st Cir. 2013) [applicant barred from AOS because
failure to disclose the fact that he was not living with spouse at I-130 interview and other discrepancies
barred subsequent AOS through brother because of 212(a)(6)(C)(i)].
17. Court’s Review Under Substantial Evidence Standard—The court’s review is to determine whether the
IJ found fraud or material misrepresentation by clear and convincing evidence under the substantial evidence
standard. Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 546-48 & n.12 (11th Cir. 2011) [upheld finding under
substantial evidence standard that applicant committed numerous misrepresentations under INA §212(a)(6)
(C)(i) regarding her past marriages on different immigration forms].
18. Inspected and Admitted—Whether someone is subject to this provision for making a material
misrepresentation should not be confused with whether they were “inspected and admitted.” As long as the
person was procedurally permitted to enter through the presentation of false documents or because they
were “waived in” at the border, they will be considered to be “inspected and admitted” if they did not make a
false claim to U.S. citizenship. See Chapter 6, ¶ XII.A.1 (p.1373), infra.
19. Waiver—INA §212(i) is used to waive fraud or a material misrepresentation under INA §212(a)(6)(C). For a
discussion of the INA §212(i) waiver, see in this part ¶ J.16 (p.211), infra. A waiver under INA §237(a)(1)(H)
may also be available in certain contexts to waive a material misrepresentation. See Chapter 8, Section
VIII.A (p.1689), infra. INA §245(i) does not waive a INA §212(a)(6)(C)(i) charge. Sattani v. Holder, 749 F.3d
368, 370-72 (5th Cir. 2014). Page 165
G. Inadequate Documentation
1. An intending immigrant not in possession of valid immigrant visa or other document needed for entry seeking
admission, and a valid unexpired passport, is inadmissible. INA §212(a)(7)(A), 8 USC §1182(a)(7)(A). Cannot
apply to someone because he was denied AOS because AOS is not an admission. Ortiz-Bouchet v. U.S.
Att’y Gen., 714 F.3d 1353, 1355-56 (11th Cir. 2013) [admission does not apply to AOS and therefore IJ
cannot sustain an INA §212(a)(7)(A)(i)(I) (lack of documents for admission) charge for someone seeking
AOS inside the U.S. subsequent to admission]. See also Marques v. Lynch, 834 F.3d 549 553-62 (5th Cir.
2016) [where respondent committed marriage fraud to obtain AOS after he lawfully entered, the government
could not seek his deportation under INA §237(a)(1)(A) because that section incorporates INA §212(a)(7)
and INA §212(a)(7) does not apply to a person who seeks AOS only a person seeking entry]. Where a no-
passport charge is linked to a visa fraud charge on the grounds of misrepresentation as to identity (i.e., an
alias was used on the passport and visa), the no-passport charge will fail if the visa is found to have been
validly issued despite the misrepresentation as to identity. Matter of Box, 10 I&N Dec. 87 (BIA 1962).
Similarly, a person who seeks entry on a K-3 is not inadmissible under this section because a K-3 is a
nonimmigrant. Atunnise v. Mukasey, 523 F.3d 830, 835 (7th Cir. 2008) [the provision bars immigrants and the
government’s position throughout proceedings was that a K-3 is a nonimmigrant]. But a person seeking entry
into CNMI is subject to 212(a)(7) because CNMI is now subject to all U.S. immigration laws. 48 USC
§1806(e)(4); Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017) [because U.S. immigration laws were made
applicable to the CNMI on Nov. 28, 2009 and respondent was in the CNMI at the time, he is treated as an
applicant for admission] Failure to provide biometric identification required at the border may result in
inadmissibility under INA §212(a)(7). 8 CFR §235.1(f)(1)(ii). Waiver is available under INA §212(k).Mayo v.
Ashcroft, 317 F.3d 867, 873–74 (8th Cir. 2003).
2. Nonimmigrants not in possession of a valid passport for 6 months or a BCC or NIV are also inadmissible.
INA §212(a)(7)(B), 8 USC §1182(a)(7)(B). This provision can be waived by the Secretary of State and AG
acting jointly. INA §212(d)(4), 8 USC §1182(d)(4). A waiver may be granted by the CBP Field Office Director
on an I-193 if the person lacks a valid unexpired passport or a valid nonimmigrant visa due to an “unforeseen
emergency.” 8 CFR §212.1(g); 22 CFR §41.2(i); 9 FAM 201.1-2(B) A European Union laissez-passer travel
document (“EULP”) is acceptable as a passport for visa issuance and travel to the U.S. if there is an A-1, A-2
or G-3 visa in the EULP for persons traveling on official EU business. 9 FAM 402.3-4(C), 403.9-3; Cable,
DOS, 17-State-33754 (Aug. 7, 2017), AILA Doc. No. 17100430. LIFE Act §1103(b)(2) provides that the
spouse of a USC who married abroad is inadmissible as a person without a valid NIV if she is not in
possession of a valid NIV issued by a consular officer in the foreign state in which she was married.
H. Miscellaneous Grounds of Inadmissibility
1. Aliens Ineligible for Citizenship, or Aliens who Evaded the Draft
INA §212(a)(8)(A)-(B), 8 USC §1182(a)(8)(A)-(B)
INA §212(a)(8)(A) applies only to persons who seek to immigrate and not to NIVs. 9 FAM 302.9-11(B)(1). It
applies to persons who are barred from naturalization because they were exempt for military service, INA
§212(a)(8)(A), or because they departed or remained outside the U.S. to evade military service. INA §212(a)
(8)(B). Section “A” does not apply to persons convicted of an aggravated felony who are now therefore,
ineligible for citizenship. Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000); Espinoza-Castro v. INS, 242 F.3d
1181 (9th Cir. 2001) [no substantial evidence to support economic hardship as reason for desertion]. Evasion
of military service during Vietnam war has been pardoned. Proclamation 4483 (Jan. 24, 1977) implemented
by Executive Order 11967. See Rahman v. INS, 429 U.S. 1084 (1977). IMMACT90 amended INA §315 so
that persons exempt from U.S. military service pursuant to the exercise of rights under a treaty are no longer
ineligible for citizenship if, before exercising that right, they served in the armed forces of the foreign country
of which they were a national. 9 FAM 302.9-11(B)(1)(b). See also Ceballos y Arboleda v. Shaughnessy, 352
U.S. 599 (1957); McGrath v. Kristensen, 340 U.S. 162 (1950). See also Matter of Riva, 13 I&N Dec. 268 (BIA
1969). For additional discussion, see Chapter 13, ¶ II.A.7.e (p.2173), infra. Page 166
2. Falsely Claiming Citizenship
INA §212(a)(6)(C)(ii), 8 USC §1182(a)(6)(C)(ii); IIRIRA §344(a); H.R. Rep. No. 104-828 at 199 (Conf. Rep)
(Joint Explanatory Statement), 1996 WL 536620 at 199; H.R. Rep. No. 104-861 at 50 (1996); 142 Cong. Rec.
S11,502-02 (daily ed. Sept. 27, 1996) (statement of Sen. Paul Coverdell); 142 Cong. Rec. S4,577-01 (daily
ed. May 2, 1996) (statement of Sen. Simpson); 142 Cong. Rec. 10,030, 24,783 (1996); 8 USCIS-PM, Pt. K,
Chaps. 1–4; 9 FAM 302.9-5(A)-(D).
2.a. In General
(1) A person who knowingly falsely represents or has falsely represented him- or herself to be a U.S.
citizen for “any purpose or benefit” under the INA or “any other federal or state law” is inadmissible. 8
USCIS-PM, Pt. K, Ch. 2; Memo, Deputy Gen. Counsel, DHS, False Citizenship Claims by Children:
Knowledge and Legal Capacity Elements (Dec. 6, 2012), at 2, AILA Doc. No. 16092611 [where
individual “mistakenly believed” he was a USC, even if he does not fit under the exception where both
parents are USCs, he is not inadmissible because “Congress’s aim was to bar those who deliberately
fabricate claims of U.S. citizenship with the goal of gaining legal benefits to which they are not
entitled”] Matter of Richmond, 26 I&N Dec. 779 (BIA 2016) [avoiding removal proceedings constitutes
a “purpose” under the statute]; Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009) [person
convicted under 18 USC §1542 for falsely stating on a passport application that she was born in Texas,
is barred under INA §212(a)(6)(C)(ii) from AOS]; Etenyi v. Lynch, 799 F.3d 1003 (8th Cir. 2015) [where
respondent signed prepopulated I-9 form IJ determined he lacked credibility when he claimed he did
not notice the checked box saying he was a USC and that it was under penalty of perjury]; Dugboe v.
Holder, 644 F.3d 462, 469-70 (6th Cir. 2011) [not abuse of discretion to deny remand for AOS where
person was inadmissible under falsely claiming he was USC at Canadian border because there is no
waiver]; Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006) [adjustment barred for person convicted
under 18 USC §1542 for representing himself as a USC on a passport application]; Jamieson v.
Gonzales, 424 F.3d 765 (8th Cir. 2005) [replying “U.S.” to immigration officer’s question at the border
regarding citizenship or country is a false representation for the benefit of entry into the U.S.]; Pichardo
v. INS, 216 F.3d 1198 (9th Cir. 2000) [upholding removal order based on plea to making a false claim
of USC in violation of 18 USC §91]. This section applies only to any representation made on or after
Sept. 30, 1996. IIRIRA §344(c); Memo, Greene, Acting Assoc. Comm., Programs. (96 Act #059,
HQIRT 50/5.12) (Apr. 6, 1998), AILA Doc. No. 98040691 and is not retroactive. 9 FAM 302.9-5(B)(2). If
the section is inapplicable because it arose prior to Sept. 30, 1996, a person may still be charged with
making a material misrepresentation under 212(a)(6)(C)(i). 8 USCIS-PM, Pt. K, Ch. 1, ¶B.
(2) I-9 Statements—A false statement on an I-9 that a person is a “national” of the U.S. does not subject
the person to inadmissibility. 8 USCIS-PM, Pt. K, Ch. 2 ¶A.3 & 4 [A foreign national who falsely claims
to be a U.S. national but not a U.S. citizen is not inadmissible for false claim to U.S. citizenship].
Where the question on the form asks whether the person is a “citizen or national”, “an affirmative
answer to this question does not by itself, provide sufficient evidence that would permit a reasonable
person to find the foreign national falsely represented U.S. citizenship because of the question’s
ambiguity. See U.S. v. Karaouni, 379 F.3d 1139 (9th Cir. 2004); 8 USCIS-PM, Pt. K, Ch. 2 ¶A.4; Kirong
v. Mukasey, 529 F.3d 800, 802–03 (8th Cir. 2008) [where F-1 checked off I-9 box that states “citizen or
national,” the government failed to sustain its burden for purposes of deportability, although petitioner
could not establish that he was admissible for purposes of AOS]; U.S. v. Karaouni, 379 F.3d 1139 (9th
Cir. 2004) [where defendant checked off I-9 box that stated he was a citizen or national of the U.S., he
could not be convicted under §911 that makes it a crime only to make a false claim to citizenship]. But
see, Godfrey v. Lynch, 811 F.3d 1013 (8th Cir. 2016) [I-9 is admissible in removal proceedings and
notwithstanding ambiguity of “citizen or national” clause in (former) I-9 form, there was sufficient
additional evidence for finding]; Mayemba v. Holder, 776 F.3d 542 (8th Cir. 2015) [same]; Dakura v.
Holder, 772 F.3d 994 (4th Cir. 2014) [false claim to USC on I-9 falls within the statute]; Downs v.
Holder, 758 F.3d 994 (8th Cir. 2014) [denied motion to suppress I-9 and other employment and school
records and rejected claim that INA §274A(b)(5) or Whiting and Arizona v. U.S. barred the use of I-9s
in removal proceedings]; Matter of Bett, 26 I&N Dec. 437 (BIA 2014) [adopted Page 167 reasoning in
Downs, applied it nationwide, and noted applicant failed burden for admissibility where IJ found he
lacked credibility]. See Chapter 12, ¶ I.D.4 (p.2069), infra. The false claim may be made in private-
sector employment,Ferrans v. Holder, 612 F.3d 528 (6th Cir. 2010) [AOS barred because claim on I-9
in private employment that person is USC is to obtain a benefit] or solely to a U.S. government
officials. 9 FAM 302.9-5(B)(5). See also Crocock v. Holder, 670 F.3d 400, 403 (2d Cir. 2012) [denial of
AOS upheld where petitioner failed to meet his burden of demonstrating admissibility when he offered
only his testimony to rebut statement checked on I-9 that he was a citizen or national of the U.S.];
Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007) [where applicant admitted he worked without
authorization by stating he was USC, and DHS provided a document from employer where he checked
off box that stated he was USC or LPR, there was sufficient evidence to support finding; the fact that
the false claim was made to obtain private-sector employment is not a defense]. Note that I-9 forms
after Apr. 3, 2009, have two separate boxes for “citizen” and “noncitizen national.”
(3) Must Be for a Purpose or Benefit—The bar does not apply unless the government can demonstrate
that the false claim was for a “purpose or benefit” which may not be assumed merely because of his or
her undocumented status. Castro v. U.S. Att’y Gen., 671 F.3d 356, 367-71 (3d Cir. 2012) [petitioner’s
statement to Patterson, N.J., police officer at time of his arrest for soliciting sex that he was born in
Puerto Rico did not, alone, establish that it was for any purpose or benefit under the INA or any other
federal or state law]; Hassan v. Holder, 604 F.3d 915, 928-29 (6th Cir. 2010) [reversed finding of
deportability where DHS failed to offer evidence that the misrepresentation was “for any purpose or
benefit” where citizenship claim was made to Small Business Administration on a loan application but it
was irrelevant because the applicant’s immigration status was irrelevant to the loan]. See also
Richmond v. Holder, 714 F.3d 725 (2d Cir. 2013) [remanding to BIA to set standard for “purpose or
benefit” under law]. But see Capener v. Napolitano, 981 F.Supp.2d 1119, 1128-29 (D. Utah 2013)
[USCIS did not abuse its discretion in denying AOS without considering materiality issue where person
was convicted of violating Utah Code Ann §76-8-511 by presenting a U.S. birth certificate and SSN# of
another person]
2.b. Standard —The Board in Matter of Richmond, 26 I&N Dec. 779, 783-90 (BIA 1996) following remand
from the Second Circuit set forth the standards to determine a violation of INA §212(a)(6)(C)(ii)(I),
particularly to define the term “purpose” under the statute. The Board held that a person is inadmissible
under the provision if he or she: (1) “falsely represents, or has falsely represented, himself or herself to be
a citizen of the United States”; (2) “for any purpose or benefit”; (3) “under th[e] Act … or any other Federal
or State law.” Richmond at 783. The false representation may be past or present but the Board did not
address whether it must be a “knowing” false claim. Id. In reaching its decision that a false claim to avoid
deportation is a “purpose” under the statute, the Board held: “First, the Immigration Judge must find direct
or circumstantial evidence demonstrating that the false claim was made with the subjective intent of
achieving a purpose or obtaining a benefit under the Act or any other Federal or State law. Second, the
presence of a purpose or benefit must be determined objectively—that is, United States citizenship must
actually affect or matter to the purpose or benefit sought.” Id. at 786-87. The Board then went on to define
“purpose” to include the “avoidance of negative legal consequences” such as deportation/removal. Id. at
788-89 and rejected the argument that because DHS officers conduct their own independent
determination the false statement does not actually affect whether someone is placed in a removal
proceeding. USCIS also maintains that the standard to show that the U.S. citizenship claim actually
affects or matters to the benefit sought is under the materiality standard enunciated in Kungys v. U.S., 485
U.S. 759, 770 (1988). 8 USCIS-PM, Pt. K, Ch. 2 ¶E.2
2.c. Incompetency as a Defense—DHS and DOS acknowledge that a charge under this section can only be
sustained if the applicant “knowingly” makes a false claim to USC. They recognize an affirmative defense
if the declarant lacked the capacity to make a knowing false claim. 8 USCIS-PM, Pt. K, Ch. 2 ¶D.4 [look to
age, level of education, background, mental capacity; level of understanding; ability to appreciate the
difference between true and false and other relevant circumstances]. A person under 18 at the time and
who lacked the capacity to understand and appreciate the nature and consequences of a false claim to
citizenship would not be inadmissible. Page 168 Memo, Deputy Gen. Counsel, DHS, False Citizenship
Claims by Children: Knowledge and Legal Capacity Elements (Dec. 6, 2012), AILA Doc. No. 16092611; 9
FAM 302.9-5(B)(1)(a); Letter, Vallance, Acting Asst. Sec. for Leg. Affairs, DHS to Senator Reid (Sept. 12,
2013) and Letter, Gibbons, Act. Asst. Sec. for Leg. Affairs, DOS (Aug. 29, 2013), AILA Doc. No.
13092060. Sandoval v. Holder, 641 F.3d 982 (8th Cir. 2011) [remanded case back to BIA to determine
whether AOS applicant’s minor status (16 years old) at the time of the misrepresentation barred its use
and whether her maturity level should be considered in the timing of the retraction]. See also Singh v.
Gonzales, 451 F.3d 400 (6th Cir. 2006) [distinguishing Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987) and
Senica v. INS, 16 F.3d 1013 (9th Cir. 1994); under the second prong of Chevron,the imputation of
fraudulent conduct to children is not a reasonable extension of case law]; The person also must have the
mental capacity to make the false claim. Matter of G-H-, No. 13595 (AAO Sept. 11, 2015) (San Jose) [due
to unique personal circumstances of abuse and age (17) she lacked the maturity and judgment to
understand what she was doing]; 8 USCIS-PM, Pt. K, Ch. 2 ¶D.4 [persons who are mentally incompetent
and small children judged to be incapable of independently forming an intent to defraud should not be
deemed inadmissible if applications submitted on their behalf contain false representations]. In
determining inadmissibility under this section, a case-by-case analysis may be required. Matter of
Guadarrama, 24 I&N Dec. 625, 628 n.1 (BIA 2008); Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004).
2.d. Burden of Proof—The burden to demonstrate admissibility is on the applicant. Crocock v. Holder, 670
F.3d 400, 403 (2d Cir. 2012) [denial of AOS because of inadmissibility upheld where petitioner offered only
his testimony to rebut statement checked on I-9 that he was a citizen or national of the U.S.]. cf. Munoz-
Avila v. Holder, 718 F.3d 976 (7th Cir. 2013) [applicant for AOS met burden demonstrating he did not
make a false claim to U.S. citizenship when he presented a baptismal certificate that said only “Harbor
City” but had no state or country named and where I-213 and Notice of Visa Cancellation contain no
statements that he claimed to be a USC]. In contrast to the BIA, DHS maintains the position that the
burden is on the applicant to establish “clearly and beyond a doubt” that he did not knowingly made a
false statement. Compare 8 USCIS-PM, Pt. K, Ch. 2 ¶D.2 and 8 USCIS-PM, Pt. K, Ch. 3 ¶B with Matter
of Richmond, 26 I&N Dec. 779, 783-90 (BIA 1996). A criminal conviction or civil penalty for falsely
representing oneself as a USC is sufficient to establish inadmissibility. 8 USCIS-PM, Pt. K, Ch. 3 ¶C
2.e. False Claims About Another’s Citizenship Not Applicable—This section also does not apply to false
claims made about another person’s citizenship, for example, the citizenship of the person’s child. Cable,
Albright, 97-State-174342 (Sept. 17, 1997), AILA Doc. No. 97091791. But it may subject the party to alien
smuggling. 8 USCIS-PM, Pt. K, Ch. 2 ¶E.4
2.f. No Waiver Available—The waiver under §212(i) is not available for this section [see INA §212(i) waiving
only the first paragraph of §212(a)(6)(C)]. Godfrey v. Lynch, 811 F.3d 1013, 1019 (8th Cir. 2016) [no
waiver]. However, where person makes false claim to USC but is only charged with material
misrepresentation under §212(a)(6)(C)(i) a waiver is available. Matter of ___(AAO Portland, Oregon (Oct.
7, 2010), AILA Doc. No. 11010333 [granting 212(i) waiver primarily based upon hardship to spouse due to
children’s health and other problems]. Also, a waiver may be available under INA §237(a)(1)(H). Avila-
Anguiano v. Holder, 689 F.3d 566 (6th Cir. 2012) [person convicted of false claim to U.S. citizenship in
1991 was nevertheless eligible for §237(a)(1)(H) waiver where he was charged with §212(a)(6)(C)(i) for
not disclosing his conviction in 1993 when he applied for LPR status because the relevant
misrepresentation is only at the time of admission and §237(a)(1)(H)(i)(II) is not read broadly to include all
grounds of inadmissibility]. And a waiver is always available for nonimmigrants under INA §212(d)(3)(A). 9
FAM 302.9-5(D)(2)
2.g. Exception for Children of USCs—A person will not be inadmissible if his or her: (1) parents were or are
USCs; (2) the person permanently resided in the U.S. prior to 16; and (3) the person reasonably believed
at the time of making the representation that he or she was a USC. INA §212(a)(6)(C)(ii)(II); 9 FAM 302.9-
5(B)(6). See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063–64 (9th Cir. 2008) [exception did not apply
because one parent was not a USC]. The exception applies to representations made on or after Sept. 30,
1996. Section 201(b)(2) of the Child Citizenship Act of 2000, PL 106-395, Page 169 114 Stat. 1631 (Oct.
30, 2000). See also Memo, Yates, Deputy Exe. Assoc. Comm. Operations, USCIS, HQ 70/33 (May 7,
2002), AILA Doc. No. 05030768 [setting forth criteria for determining a false claim to USC and
determining whether an exception or prosecutorial discretion applies]. According to DHS, this exception
does not preclude the argument that an applicant did not knowingly fabricate a claim to USC because
“there is no indication that Congress intended to make this exception the only limitation on section 212(a)
(6)(C)(ii).” Memo, Deputy Gen. Counsel, DHS, False Citizenship Claims by Children: Knowledge and
Legal Capacity Elements (Dec. 6, 2012), at 3, AILA Doc. No. 16092611.
2.h. Timely Retraction Doctrine—If the person timely retracted or recanted the statement it would not be
considered a misrepresentation. 8 USCIS-PM, Pt. K, Ch. 2, ¶F; Sandoval v. Holder, 641 F.3d 982 (8th Cir.
2011). See in this part ¶ III.F.8.c (p.160), supra.
3. Unlawful Voting
INA §212(a)(10)(D), 8 USC §1182(a)(10)(D), 22 CFR §40.104; 9 FAM 302.12-5
A person who has voted in violation of any federal, state, or local constitutional provision, statute, ordinance,
or regulation is inadmissible. Applies to voting before, on, or after Sept. 30, 1996. IIRIRA §347(c). If DHS
places the person in removal proceedings, it must prove that the respondent violated the particular federal
(18 USC §611), state, or local voting statute. Depending on the statute, DHS may be required to prove under
the standard set forth in Woodby v. INS, 385 U.S. 276 (1966), that the respondent acted knowingly or willfully.
McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005) [government failed to prove a knowing violation of
Hawaii voting fraud statute]. See also 63 FR 64626 (Nov. 23, 1998) [a consular officer can consider whether
it was a knowing violation where a knowing violation is required]. But see Matter of Fitzpatrick, 26 I&N Dec.
559 (BIA 2015) [when respondent knew he voted in federal election and knew he was not a USC, specific
intent to violate the federal statute, 18 USC §611 is not required for deportation under INA §237(a)(6) and the
exception for liability under §611 for non-USCs to vote in local elections did not apply]. It is necessary for the
IJ to determine whether the conviction is under a statute that has as an element of the crime casting a vote.
Matter of Cundall, A075-776-185 (Dec. 29, 2015) [unpublished BIA decision terminating proceedings where
respondent “voted in two elections” without identifying the elections and where the Va. statute did not contain
an element of casting a vote]. There may also be an “official authorization” defense. Keathley v. Holder, 696
F.3d 644 (7th Cir. 2012) [where applicant presented herself as a noncitizen to DMV office and was presented
with motor-voter forms and was told she could vote, her voting may not be an excludable offense because it
was “officially authorized” and therefore could not be a violation of federal law]; See also Matter of ___, A089
490 425 (Sept. 10, 2013 Chicago), AILA Doc. No. 13091646. But see Fitzpatrick v. Sessions, 847 F.3d 913
(7th Cir. 2017), aff’g Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015) [officially authorized defense
unavailable where respondent did not make accurate disclosures on form, was not told she could vote or
even register to vote as an alien, and registering is different than voting and she voted twice]; Kimani v.
Holder, 695 F.3d 666 (7th Cir. 2012).To determine whether a respondent knowingly or willfully violated a
voting statute, adjudicating officers should determine: “(1) how, when and where the applicant registered to
vote and/or voted; (2) the extent of the applicant’s knowledge of the election laws; (3) whether the applicant
received any instructions, or was questioned verbally about his or her eligibility to vote; (4) who provided the
applicant with information about election laws or his or her eligibility to vote; (5) whether the election
registration form and/or voting ballot: (a) contains a specific question asking if the applicant is a USC; (b)
requires the applicant to declare under penalty of perjury that he or she is a USC; or (c) requires the
applicant to be qualified to vote and lists specifically the requirement of U.S. citizenship elsewhere on the
form.”Memo, Yates, Deputy Exe. Assoc. Comm. Operations, USCIS, HQ 70/33 (May 7, 2002), AILA Doc. No.
05030768. The exception for children of USCs that applies to false claims to U.S. citizenship also applies to
unlawful voting. 8 USC §1182(a)(10)(D)(ii). See in this section ¶ 2.g (p.168), supra. There is no waiver for
immigrants. 9 FAM 302.12-5(D)(1).
4. International Child Abduction
INA §212(a)(10)(C), 8 USC §1182(a)(10)(C)
A person who, after entry of a U.S. court order granting custody of a USC child to a person, detains, retains
or withholds custody of the child outside the U.S. from the person granted custody, Page 170 is inadmissible
until the child is surrendered. This provision includes a person who assists, supports, or provides safe haven
to an abductor or who is the spouse (other than the spouse who is the parent of the abducted child), child
(other than the abducted child), parent, sibling, or agent of an abductor if designated by the Secy. of State.
Cable, 15-State-40586, Update to [former] 9 FAM 40.103 International Child Abduction (Apr. 10, 2015), AILA
Doc. No. 15041467[the primary abductor must be an alien]. See also 9 FAM 302.12-4. There is no waiver for
IVs but the person ceases to be ineligible when he or she returns the child to the person granted custody by
the U.S. court and the child is permitted to return to the U.S. or the place of the child’s residency. 9 FAM
302.12-4(B)(8).
Hague Convention and ICARA: The international child abduction provision does not apply to a child located
in a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction,
T.I.A.S. No. 11,670. For the role of DOS in enforcing the Hague Convention see 22 CFR pt. 94; 73 FR 47829
(Aug. 15, 2008); 73 FR 64539 (Oct. 30, 2008). U.S. implementing legislation under the Convention is known
as the International Child Abduction Remedies Act (ICARA), 102 Stat. 437; 42 USC §11601 et seq. For
relevant case law, see:
Supreme Court: Lozano v. Montoya Alvarez, 134 S.Ct. 1224 (2014) [the one year period from the child’s
removal for filing a petition for the automatic return of the child under Article 12 may not be equitably tolled for
any reason including concealment]; Chafin v. Chafin, 568 U.S. 165 (2013) [mother’s return with child to
Scotland after success in the district court did not moot USC father’s claim under Act]; Abbott v. Abbott, 560
U.S. 1 (2010) [addressing father’s ne exeat right under Chilean law in relationship to Hague Convention];
Lozano v. Montoya Alvarez, 697 F.3d 41, 56-58 (2d Cir. 2012) aff’d 134 S.Ct. 1224 (2014) [child’s
undocumented status in U.S. is only one factor and not dispositive of whether the child would be treated as
settled in U.S. to preclude return to country where he previously resided];
First Circuit: Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir. 2014) [parents had settled purpose and
shared intent that child habitually reside in U.S.]; Neergaard-Colon v. Neergaard, 752 F.3d 526 (1st Cir. 2014)
[in determining habitual residence, district court must consider whether the parties intended to maintain their
habitual residence in U.S. while living abroad for a temporary period of fixed duration]; Darin v. Olivero-
Huffman, 746 F.3d 1, 10-19 (1st Cir. 2014) [spouse wrongfully retained Argentinian child in U.S. and mother
failed to prove that father consented or acquiesced to change child’s habitual residence to U.S.]; Yaman v.
Yaman, 730 F.3d 1, 16-21 (1st Cir. 2013) [court may return a child even if the child is “now settled” in the
receiving country]; Felder v. Wetzel, 696 F.3d 92, 101 (1st Cir. 2012) [court may consider testimony of child];
Second Circuit: Marks on Behalf of SM v. Hochhauser, 876 F.3d 416 (2d Cir. 2017) [father’s claim of
mother’s unlawful retention of children was barred because it occurred before U.S. recognized Thailand’s
accession to Hague Convention and the court regards retention as a singular and not continuing act];
Souratgar v. Lee Jen Fair, 818 F.3d 72, 78-85 (2d Cir. 2016) [attorney’s fees need not be awarded where the
prevailing petitioner engaged in “clearly inappropriate” conduct by engaging in repeat unilateral acts of
violence against the spouse]; Tann v. Bennett, 807 F.3d 51 (2d Cir. 2015) [father obtaining state court custody
determination did not moot out mother’s claim under ICARA for wrongful abduction]; Ermini v. Vittori, 758
F.3d 153 (2d Cir. 2014) [although both parents were Italian citizens, children’s return to Italy was barred due
to grave risk of harm resulting from the husband’s domestic violence and the need for continued therapy for
autism for one child]; Hollis v. O’Driscoll, 739 F.3d 108 (2d Cir. 2014) [discussing habitual residence in New
Zeeland and determining child’s one-year relationship in NY with nanny and weekly play groups was not
acclimation negating habitual residence]; Souratgar v. Fair, 720 F.3d 96 (2d Cir. 2013) [addressing the great
risk of harm and human rights exceptions to repatriating a child]; Guzzo v. Cristofano, 719 F.3d 100 (2d Cir.
2013) [addressing issue of child’s habitual residence]; Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013)
[recognizing that a party may be entitled to attorney’s fees under 42 USC §11607(b)(3) but declining to award
them in the case];
Third Circuit: Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017) [in determining wrongful removal the
child’s preference for the U.S. indicating his acclimatization to U.S. was considered in determining habitual
residence]
Fourth Circuit: Didon v. Castillo, 838 F.3d 313, 321-24 (3d Cir. 2016) [a child cannot have concurrent
habitual residence because the Convention allows only one habitual residence at a time]; Alcala v.
Hernandez, 826 F.3d 161, 173-74 (4th Cir. 2016) [where both the mother and child living Page 171 in the
U.S. are not in legal status, neither the Hague Convention nor ICARA makes a lack of immigration status a
bar to finding that a child is settled]; Padilla v. Troxell, 850 F.3d 168, 175-78 (4th Cir. 2017) [finding that
despite wrongful removal petitioner consented to removal of child to U.S. from Mexico]; White v. White, 718
F.3d 300, 306-07 (4th Cir. 2013) [discussing criteria for wrongful removal of the child under the Convention];
Fifth Circuit: Soto v. Contreras, 880 F.3d 706 (5th Cir. 2018) [mother with child in the U.S. failed to prove by
clear and convincing evidence that the child would suffer a “grave risk” of “physical or psychological harm or
otherwise place him in an intolerable situation” if returned to Mexico]; Cartes v. Phillips, 865 F.3d 277 (5th Cir.
2017) [habitual residence of child was Paraguay]; Madrigal v. Tellez, 848 F.3d 669, 672-76 (5th Cir. 2017)
[district court did not abuse its discretion in determining that its order to grant return of child to father did not
require the court to order that the children’s passports be returned to the father and did not require prohibiting
the children’s international travel]; Delgado v. Osuna, 837 F.3d 571 (5th Cir. 2016) [where both parents
intended that their children permanently abandon Venezuela it was no longer the country of habitual
residence]; Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016) [remanded case to consider given the age and
maturity of the child she objected to return to Mexico]; Hernandez v. Garcia Pena, 820 F.3d 782, 787 (5th Cir.
2016) [in determining whether child is “well-settled” in the U.S. the immigration status of the child and the
respondent-parent is “neither dispositive nor subject to categorical rules”]; Berezowsky v. Ojeda, 765 F.3d
456, 464 n.4 (5th Cir. 2014) [fact that Mexican court is unlikely to enforce decision of U.S. court after child
returned to Mexico does not render the case moot because issues remain as to attorney’s fees and costs and
enforceability if child returns to U.S.]; Salazar v. Maimon, 750 F.3d 514 (5th Cir. 2014) [attorney’s fees
awarded under 42 USC §11607(b)(3) where settlement resulted in the return of the child]; Sanchez v. R.G.L.,
755 F.3d 765, 777-79 (5th Cir. 2014) [children had standing to contest their return to Mexico but their grant of
asylum in the U.S. does not trump the Convention; nevertheless the Court remanded the case to consider
the effect of asylum on the exception to return under the Convention];
Sixth Circuit: Taglieri v. Monasky, 876 F.3d 868 (6th Cir. 2017) [affirmed lower court returning child to Italy
which was child’s habitual residence where mother failed to demonstrate grave risk of harm to the child if
returned]; Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017) [father failed to prove by a preponderance of the
evidence that the UK, under the shared intent or acclimatization standard was child’s habitual residence]
Seventh Circuit: Hernandez v. Cardoso, 844 F.3d 692 (7th Cir. 2016) [despite mother’s inconsistent
testimony and actions, the abuse she suffered by the husband in front of the child was paramount in denying
father’s petition]; Martinez v. Cahue, 826 F.3d 983, 989-91 (7th Cir. 2016) [in interpreting habitual residence
of the child the two most important factors are parental intent and the child’s acclimatization to the home
district]; Garcia v. Pinelo, 808 F.3d 1158 (7th Cir. 2015) [custody agreement did not override father’s rights of
patria potestas and court was within its discretion in denying child’s wishes to remain under the “mature-child”
exception]; Ortiz v. Martinez, 789 F.3d 722 (7th Cir. 2015) [upheld district court finding by clear and
convincing evidence that children would suffer grave risk of harm if returned to Mexico because father
sexually abused one of them]; Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) [addressing child’s
habitual residence claim]; Walker v. Walker, 701 F.3d 1110 (7th Cir. 2012) [father did not abandon children
nor unconditionally consent to mother’s retention of children in U.S.]; Khan v. Fatima, 680 F.3d 781 (7th Cir.
2012) [where evidentiary hearing was flawed and finding not made on psychological harm to child the
decision awarding custody to the father was reversed];
Eighth Circuit: Cohen v. Cohen, 858 F.3d 1130 (8th Cir. 2017) [citing criteria for habitual residence
determination and finding child had a “change in geography” warranting change in habitual residence];
Custodio v. Samillan, 842 F.3d 1084, 1088-92 (8th Cir. 2016) [case was moot as to 16-year-old as the
Convention does not apply to a child who reaches 16 and the Convention permits a “mature child defense”
when a child younger than 16 does not wish to return to his prior country]; Acosta v. Acosta, 725 F.3d 868
(8th Cir. 2013) [clear and convincing evidence that children would be exposed to grave danger if returned to
Peru];
Ninth Circuit: Murphy v. Sloan, 764 F.3d 1144, 1152-53 (9th Cir. 2014) [child did not unequivocally abandon
U.S. as habitual residence by attending school in Ireland—no acclimatization]; Valenzuela v. Michel, 726 F.3d
1173, 1177 (9th Cir. 2013) [defining habitual residence as “the last shared settled intent of the parents” to
abandon prior habitual residence coupled with “actual change Page 172 in geography” and “appreciable
period of time” with no finding of agreed “shuttle custody”]; Cuellar v. Joyce, 596 F.3d 505 (9th Cir. 2010)
[father did not establish by clear and convincing evidence that there was a grave risk of harm in returning the
child to her mother in Panama];
Eleventh Circuit: Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir. 2016) [child need not be removed back to
Venezuela because of “grave risk of harm” due to mother’s death threats against father and evidence of
mother’s new husband’s likely involvement in acts of violence directed against father and his family]; Seaman
v. Peterson, 766 F.3d 1252 (11th Cir. 2014) [no clear and convincing evidence that child would be physically
or psychologically harmed if returned to Mexico and parents intended to abandon U.S. and make Mexico the
child’s habitual residence]; Chafin v. Chafin, 742 F.3d 934, 936-37 (11th Cir. 2013) [on remand from S.Ct.
discussing the importance of expeditious hearings but upholding mother’s right to return with child after 3 ½
years of litigation].
5. Illiteracy—IMMACT90 eliminated illiteracy, Matter of Gaglioti, 14 I&N Dec. 677 (Comm. 1974), as a ground
of inadmissibility. In addition, Congress eliminated the requirement that a person must remain in his or her
home country for 90 days before obtaining an IV if s/he was in the U.S. in an unlawful status, at the same
time it eliminated §245(i).
I. Security and Related Grounds
1. Espionage, Sabotage, or Illegal Activity [INA §212(a)(3)(A), 8 USC §1182(a)(3)(A)]—An alien who the
consular officer or AG knows or has reasonable ground to believe seeks to enter the U.S. to engage solely,
principally, or incidentally in:
1.a. Espionage or sabotage, or a violation or evasion of any law prohibiting export of goods, technology or
sensitive information. INA §212(a)(3)(A)(i)(I)–(II), 8 USC §1182(a)(3)(A)(i)(I)–(II). Beslic v. INS, 265 F.3d
568 (7th Cir. 2001) [void for vagueness challenge rejected]; Matter of Luis-Rodriguez, 22 I&N Dec. 747
(BIA 1999) [broadly reading former §241(a)(4)(A)(i) to include violation of 50 USC §851 where person
spied on anti-Castro paramilitary organization]. Export laws may be violated when goods, technology or
sensitive information is transferred to NIV holders in the U.S. 15 CFR §734.1(b)(1). See generally 15 CFR
pt. 730.DOS has developed a Technology Alert List (TAL) to deny admission to a person who may engage
in technology transfer. The TAL consists of a Critical Field List, which designates major fields of controlled
goods and technologies that raise technological transfer concerns and the DOS list of state sponsors of
terrorism. 9 FAM 302.5-3(B)(2) TAL is divided into four parts: Tab A (“Critical Fields List” of fields of
controlled goods and technologies including those subject to export controls); Tab B (state sponsors of
terrorism); Tab C (Other Countries of Proliferation Concern) and Tab D (FAQs and other guidance). 9 FAM
304.2-5(B)(1). DOS has developed a procedure to help consular officers determine whether there is
reason to believe that a person (including visiting students and scholars) might be ineligible under INA
§212(a)(3)(A)(i)(II). Cable, DOS, 02-State-147566 (Aug. 2, 2002), AILA Doc. No. 03030449; Cable, DOS,
98-State-015652 (Jan. 28, 1998), reprinted in 75 No. 27 Interpreter Releases 980–84 (July 17, 1998).
They also rely on a Visa Mantis cable process to verify the applicant’s background. 9 FAM 304.2-5(A);
Cable, DOS, 02-State-147566 (Aug. 2, 2002), AILA Doc. No. 03030449; Cable, DOS (99-State-158241)
(Aug. 24, 1999), AILA Doc. No. 99120673. DOS allows for an expedited process to issue a 12-month visa
if the person is returning to same program or activity (whether U.S. government sponsored or not) and
performing the same functions as previously authorized through Mantis, the post has evidence that a
previous Mantis authorization was received, and the post requests a post-check Visas Mantis process.
Cable, DOS, 03-State-285912 (Oct. 7, 2003), AILA Doc. No. 03121143; Cable, DOS, 03-State-153587
(June 5, 2003), AILA Doc. No. 03061748. If a visa applicant has not been cleared within 90 days, she may
request the status of her case by inquiring at SAOInquiries@state.gov.
(1) Export Administration Act (EAR) and International Traffic in Arms Regulations (ITAR) Violations—
Under Export Control Act regulations, a person or employer may violate the Act if he “release[s] …
technology or software subject to the Export Administration Regulations to a foreign national in the
United States.” 15 CFR §734.2(b)(2)(ii). This means that an employer bringing a “high-tech” employee
into the U.S. may violate the Export Administration Act by disclosing or releasing restricted software or
technology to him. The definition of release is very broad under a “deemed export” rule and includes:
(1) visual inspection by foreign nationals of U.S. origin equipment and facilities; and (2) oral exchanges
of information in the U.S. or abroad. Page 173 15 CFR §734.2(b)(3). Thus, an employer may be liable
criminally ($1 million per violation and 20 years imprisonment) and/or civilly ($250,000 or twice the
transaction amount) for obtaining an H-1 and bringing such a person into the U.S. Whether someone
will need a license under EAR will depend upon the person’s nationality and the nature and export
classification of the technology. The rule does not apply to LPRs and protected individuals under 8
USC §1324b(a). See also DOS, Directorate of Defense Trade Controls, Licensing of Foreign Persons
Employed by a U.S. Person (updatedJuly 18, 2012) [ITAR does not impose requirements on U.S.
companies concerning the recruitment, selection, employment, promotion or retention of a foreign
person]. But the employer may be subject to nationality discrimination even if not subject to citizenship
discrimination. TAL, Nanda, Dpty SC (Feb. 25, 2013), AILA Doc. No. 13042945; TAL, Ruisanchez,
Dpty SC (Mar. 31, 2016), AILA Doc. No. 16041374. Under ITAR the applicant looks to the U.S.
Munitions List, 22 CFR pt. 121 to determine whether it is a permissible export. Technology subject to
ITAR generally requires a license. Criminal penalties under ITAR include fines up to $1 million and ten
years imprisonment. Civil penalties include fines of $500,000 per violation. In the context of staffing
companies, it is the third party client employer’s responsibility to obtain the required authorization.
Letter, Hess, Director, Regulatory Policy Division, Dep’t of Commerce (April 8, 2011), AILA Doc. No.
11041934. See also AILA Practice Pointer: The New Export Control Attestation Requirement on Form
I-129, AILA Doc. No. 10121531.
1.b. Any other unlawful activity [INA §212(a)(3)(A)(ii), 8 USC §1182(a)(3)(A)(ii); 9 FAM 302.5-4]—DOS views
this section as not changing the existing interpretation of the law, thereby limiting the scope of this ground
of inadmissibility. Cable, DOS, 91-State-171906 (May 26, 1991), reprinted in 68 No. 23 Interpreter
Releases 755–59 (June 24, 1991). DOS has interpreted the right to exclude persons who may be
engaged in unlawful activities as limited to such matters as violation of foreign asset control regulations. It
“cautions all consular officers that this enactment is not intended to result in new procedures, new lines of
inquiry. It does not open new horizons … The Department is strongly of the view that it is inappropriate to
adjudicate [technical, regulatory crimes or violations] through the nonimmigrant visa application process.”
Id. INS has opined that the section may be used to deny visas and entry to persons who belong to
organized crime groups operating in states that formerly belonged to the USSR, even if there is no
conviction. Legal Opinion, Martin, General Counsel, HQ 235-P (Sept. 14, 1995), reprinted in 72 No. 40
Interpreter Releases 1420, 1430–32 (Oct. 16, 1995). The DOS has substantially broadened the coverage
of this ground of inadmissibility in recent years to include persons affiliated with any known criminal
organization including the Italian Mafia, Asian Triads, and “all organized street gangs in El Salvador,
Honduras, Guatemala, and Mexico” including MS-13. 9 FAM 302.5-4(B)(2)(a). Also, when determining
someone’s membership in a criminal organization the government relies on a “reasonable suspicion”
standard which it finds to be a lower standard than “reason to believe,” because it may be met solely by
“derogatory information available [that] would warrant further detailed inquiry into the subjects’
background” 9 FAM 302.5-4(B)(2)(h). However, DOS also recognizes that: “There are some rare
occasions where a prior finding that an alien was a member of an organized crime group will not result in
a finding of inadmissibility for that alien with respect to a specific application. For example, if the alien was
entering on a controlled basis as part of an official governmental delegation on official business, a visa
could be issued since there would be reason to believe the alien was not going to engage, even
incidentally, in violations of United States law. Similarly, a visa could be issued if a serious medical
emergency issuance could be justified, or if the alien was coming to cooperate in a U.S. Government
investigation into criminal activities. Clear and compelling evidence that the alien has ceased to be
associated in any way with an organized crime group (such as might be the case with Mafia members
who have cooperated with their government and testified against other members) might also justify
issuance.” 9 FAM 302.5-4(B)(2)(d).
1.c. Any activity, a purpose of which is the opposition, control or overthrow of the U.S. government by force,
violence or other unlawful means—INA §212(a)(3)(A)(iii), 8 USC §1182(a)(3)(A)(iii).
2. Terrorist Activity [INA §212(a)(3)(B), 8 USC §1182(a)(3)(B)]—Under the Terrorism-Related Inadmissibility

Grounds (“TRIG”) there are nine grounds of inadmissibility (INA §§212(a)(3)(B)(i)(I)-(IX)), that are interpreted
by three types of organizations defined as terrorist Page 174 organizations (Tier I, II, and II defined in INA
§§212(a)(3)(B)(vi)(I)-(III)), six categories of activity defined as “terrorist activity” (INA §§212(a)(3)(B)(iii)(I)-
(VI)) and six categories of activity defined as “engaging in terrorist activity” (INA §§212(a)(3)(B)(iv)(I)-(VI).
USCIS, RAIO TRIG Program Branch, Terrorism-Related Inadmissibility Grounds (TRIG) (Feb. 2017), AILA
Doc. No. 17121239; Fact Sheet, DOS, Terrorism Designations FAQs (Feb. 27, 2018), AILA Doc. No.
18022731 [addressing differences between a Foreign Terrorist Organization (FTO) designation and an E.O.
13224 designation as a Specially Designated Global Terrorist (SDGT)]
2.a. In General—A person is inadmissible under INA §212(a)(3)(B)(i) if he or she:
(1) Has engaged in a terrorist activity;
(2) Is one who a consular officer, AG, or Secretary of DHS knows or has reasonable grounds to believe
is engaged in or likely to engage in terrorist activity. The BIA has equated “reasonable grounds to
believe” with “probable cause.” Matter of U-H-, 23 I&N Dec. 355, 356 (BIA 2002) [USA PATRIOT Act
did not alter the “reasonable grounds to believe” standard]; Abufayad v. Holder, 632 F.3d 623, 630-31
(9th Cir. 2011) [government met burden of producing “some evidence” that it had reason to believe
(probable cause) that applicant seeking admission was likely to engage in terrorist activity and once
burden shifted respondent did not prove that he was clearly and beyond a doubt not inadmissible
under 8 USC §1229a(c)(2)(A)].
(3) Has incited terrorist activity under circumstances indicating an intention to cause death or serious
bodily harm;
(4) Is a representative of: (a) a foreign terrorist organization (FTO) as designated by the Secy. of State
under INA §219, or (b) a political, social, or other similar group that endorses or espouses terrorist
activity;
(5) Is a member of a “Tier I” or “Tier II” FTO: as designated by the Secy. of State under §219 (“Tier I”
organization); or otherwise designated in the Federal Register by Secy. of State as a terrorist
organization (“Tier II” organization) for engaging in terrorist activity as defined. This terrorism exclusion
list or TEL is found at the DOS website. See e.g., 83 FR 14539 (Apr. 4, 2018) [continuing designation
and expanding it to include alias of Lashkar-e-Tayyiba]; 83 FR 8729-30 (Feb. 28, 2018) [continuing
designation of ISIS in West Africa, Bangladesh, Iraq, Syria]; 82 FR 52764 (Nov. 14, 2017) [continuing
designation of Hamas]; 82 FR 50927-28 (Nov. 2, 2017) [expanding designation of Abdallah Azzam
Bridgade (and other aliases) to include Marwan Hadid Brigades]; 82 FR 50728 (Nov. 1, 2017)
[maintaining designation of Jaish-e-Mohammed (and other aliases)]; 82 FR 50727 (Nov. 1, 2017)
[maintaining designation of Haqqani Network (and other aliases)]; 82 FR 39151 (Aug. 17, 2017)
[designating Hizbul Mujahideen as global terrorist organization]; 82 FR 28731 (Jun. 23, 2017) [adding
alias names to designation of al-Qa’ida]; 82 FR 28730-31 (Jun. 23, 2017) [adding alias to designation
of Hizballah]; 82 FR 4449 (Jan. 13, 2017) [Jamaah Ansharut Daulah designated as terrorist
organization]; 81 FR 96565 (Dec. 30, 2016) [adding alias names to designation of Lashkar-e-Tayyiba];
81 FR 79554 (Nov. 14, 2016) [adding alias names to Al-Nusrah Front’s designation as FTO]; 81 FR
72639-40 (Oct. 20, 2016) [maintaining Army of Islam, Communist Party of the Philippines, Indian
Mujahedeen, Tehrik-e-Taliban Pakistan (TTP) as FTOs]; 81 FR 66118 (Sept. 26, 2016) [continuing
designation of al-Aqsa Martyrs’ Brigade as FTO]; 81 FR 61290 (Sept. 6, 2016) [maintaining Kata’ib
Hizballah as a FTO]; 81 FR 59029 (Aug. 26, 2016) [maintaining Jemaah Islamiya]; 81 FR 52945 (Aug.
10, 2016) [maintaining Tamil Tigers as a FTO]; 81 FR 37660 (June 10, 2016) [designating Yarmouk
Martyrs Brigade as an FTO]; 81 FR 35435 (June 2, 2016) [maintaining Islamic Movement of
Uzbekistan as a FTO]; 81 FR 32004 (May 20, 2016) [designating ISIL-Libya as Specially Designated
Global Terrorists]; 81 FR 32001-03 (May 20, 2016) [designating ISIL-Yemen and ISIL-Saudi Arabia as
Specially Designated Global Terrorist]; 81 FR 18932 (Apr. 1, 2016) [maintaining Ansar al Islam as a
FTO]; 81 FR 12776-77 (Mar. 10, 2016) [maintaining designation of PLF/Palestine Liberation Front]; 81
FR 10951 (Mar. 2, 2016) [maintain al-Qa’ida as FTO]; 81 FR 1983 (Jan. 14, 2016) [designating ISIS
Khorasan]; 80 FR 59222 (Oct. 1, 2015) [designating the Islamic State of Iraq and the Levant]; 80 FR
53382-83 [maintain Revolutionary Struggle aka Epanastatikos Aghonas as a FTO] (Sept. 3, 2015); 80
FR 27432-33 Page 175 [maintaining al-Qa’ida as FTO] (May 13, 2015); 80 FR 25766 [maintain
Popular Front for the Liberation of Palestine as an FTO] (May 5, 2015); 80 FR 603 (Jan. 6, 2015)
[maintaining Popular Front for the Liberation of Palestine—General Command as a FTO]; 79 FR
75227 (Dec. 17, 2014) [continuing designation of Palestinian Islamic Jihad]; 79 FR 65474 (Nov. 4,
2014) [continuing designation of Basque Fatherland and Liberty a/k/a ETA]; 79 FR 65474 (Nov. 4,
2014) [continuing designation of ELN]; 79 FR 49368 (Aug. 20, 2014) [designate MSC or Mujahideen
Shura Council in the Environs of Jerusalem as a FTO]; 79 FR 47513 (Aug. 13, 2014) [maintaining
Asbat al-Ansar]; 79 FR 46499 (Aug. 8, 2014) [maintaining Harakat ul-Mujahidin as terrorist
organization]; 79 FR 46297 (Aug. 7, 2014) [maintaining Shining Path designation]; 79 FR 36366 (June
26, 2014) [re-designating Lashkar-e-Tayyiba]; 79 FR 27972 (May 15, 2014) [amending designation of
al-Qa’ida in Iraq to include ISIS and its various names]; 79 FR 27972 (May 15, 2014) [designating Al-
Nusrah Front]; 79 FR 27030 (May 12, 2014) [maintaining terrorist designation for al-Qa’ida in the
Islamic Maghreb]; 79 FR 25170 (May 2, 2014) [maintaining terrorist designation for Harakat ul-Jihad-i-
Islami/Bangladesh; 79 FR 23041 (Apr. 25, 2014) [maintaining terrorist designation of the Irish
Republican Army]; 79 FR 19958 (Apr. 10, 2014) [designating Ansar Bayt al-Maqdis]; 79 FR 2240-41
(Jan. 13, 2014) [designating Ansar al-Shari’a in Tunisia, Darnah and Benghazi]; 78 FR 76887 (Dec. 19,
2013) [designating Al-Mulathamun Battallon and its various other names]; 78 FR 46671 (Aug. 1, 2013)
[re-designating Revolutionary People’s Liberation Party/Front]; 78 FR 26101 (May 3, 2013) [re-
designating Real Irish Republican Army]; 78 FR 24463 (Apr. 25, 2013) [re-designating Abu Sayyaf
Group]; 78 FR 17745 (Mar. 22, 2013) [re-designating Hizballah]; 78 FR 17744-45 (Mar. 22, 2013)
[designating Ansar al-Dine]; 77 FR 61046 (Oct. 5, 2012) [re-designating al-Qa’ida in the Arabian
Peninsula under various alias under section 219 and as a Specially Designate Global Terrorist entity
under EO 13224]; 77 FR 44307 (July 27, 2012) [re-designating Hamas as terrorist organization]; 77 FR
31909 (May 30, 2012) [designating Abdallah Azzam Brigdes]; 77 FR 14854 [naming Jemmah Anshorut
Tauhid (JAT) as Tier I terrorist organization]; 77 FR 11186 (Feb. 24, 2012) [retaining Islamic Jihad
Union as terrorist organization]; 77 FR 4082] (Jan. 26, 2012) [maintaining FTO designation for al-
Qa’ida in Iraq];76 FR 17979 (Mar. 31, 2011) [retaining al-Aqsa Martyrs Brigade on terrorist list]; 73 FR
68489 (Nov. 18, 2008) [retaining FARC and Shining Path on list of designated terrorist organizations].
The Secretary of State may also designate individuals and terrorist organizations under Executive
Order (EO)13224 as amended by Executive Order 13268 (July 2, 2002) and Executive Order 13284
(Jan. 23, 2003). See e.g., 80 FR 60431 (Oct. 6, 2015) [designating ISIL Khorasan as specially
designated global terrorist under §1(b) of Executive Order 13224]; 79 FR 2241 (Jan. 13, 2014)
[designating Ahmed Abu Khattalah aka Ahmad Bukhattalah as a Specially Designated Global
Terrorist]; See also Designation by DOS of Movement for Unity and Jihad in West Africa (MJJWA)
(Dec. 7, 2012), AILA Doc. No. 12120766. See also, FAQs, Terrorism Designations, DOS (July 10,
2012), AILA Doc. No. 12071345. Designations under Executive Order (EO) 13224 and designations as
FTOs under 219 have different consequences as an FTO designation automatically results in
inadmissibility for representatives and members and in a material support bar for those who provide
support. FAQs, Terrorism Designations, DOS (May 19, 2016), AILA Doc. No. 16051901.
(a) Revoking Terrorist Designation—The Secretary of State may also revoke/delist the determination
that an organization is a terrorist organization. 82 FR 25654 [revoking terrorist designation of Abu
Nidal Organization/Black September]; 80 FR 76611 (Dec. 9, 2015) [revokingdesignation of the
Libyan Islamic Fighting Group/LIFG as a terrorist organization]; 80 FR 53382 (Sept. 3, 2015)
[revoking terrorist designation of Revolutionary Organization 17 November]; 77 FR 60741(Oct. 4,
2012) [de-listing Mujahedin-e Khalq (MEK]; 77 FR 54944 (Sept. 6, 2012) [revoking the designation
of the Communist Party of Nepal as a terrorist organization]; 79 FR 41349 (July 15, 2014)
[removing AUC of Colombia from terrorist list];
(b) Challenging a FTO Designation—A party designated as an FTO may challenge it by seeking
judicial review in the D.C. Circuit within 30 days of the Secretary’s designation. 8 USC §1189(c)(1).
However, once a designation becomes effective even a defendant Page 176 in a criminal action
may not raise any questions as to the validity of the designation at a trial or hearing. 8 USC
§1189(a)(8)
(6) Is a member of a “Tier III” FTO: a group of 2 or more individuals, whether organized or not, which
engages in or has a subgroup which engages in terrorist activity (“Tier III” organization) as defined
unless the person can demonstrate by clear and convincing evidence that he or she did not know, and
should not reasonably have known, that the organization was a terrorist organization. See generally
FH-T v. Holder, 723 F.3d 833, 839 (7th Cir. 2013) [“A Tier III terrorist organization, by contrast, is
broadly defined as a ‘group of two or more individuals, whether organized or not, which engages in or
has a subgroup which engages in, the activities described in sub-clauses (I) through (IV), 8 USC
§1182(a)(3)(B)(vi)(III).’ … Under the so-called ‘knowledge exemption’ the material support bar applies
only if FH-T knew or reasonably should have known that the EPLF was engaged in an activity that is
either unlawful where it took place or would be unlawful in the United States. See 8 USC §§1158(b)(2)
(A)(v); 1182(a)(3)(B)(iv)(VI), (vi)(III).’ ”] In addition the material support bar does not apply if the support
was “insignificant.” 79 FR 6913 (Feb. 5, 2014).A group of 2 or more individuals may be designated a
Tier III organization even if their goal is not to endanger U.S. national security or U.S. nationals.
Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008) [the statute does not require that a Tier III
organization “be a threat to us”]. DHS has the initial burden of proving that a group is a Tier III
organization for purposes of the mandatory terrorism bar, and proving whether the individual was
involved in the group at the time the group engaged in terrorist activity. 8 CFR §1240.8(d). This
requires a threshold showing of “particularized evidence of the bar’s applicability.” Budiono v. Lynch,
837 F.3d 1042, 1048 (9th Cir. 2016) [“The government would have us hold that the applicant’s burden
of proof arises where the record contains only generalized evidence suggesting that an organization
was violent. We decline the government’s invitation; instead, we apply the same burden-of-proof
framework that we apply in the context of the persecutor bar. In that line of cases, we require a
threshold showing of particularized evidence of the bar’s applicability before placing on the applicant
the burden to rebut it”]; Uddin v. U.S. Att’y Gen., 870 F.3d 282, 285 (3d Cir. 2017) [“First, the
Government must introduce evidence ‘indicat[ing]’ that a group qualifies as a Tier III terrorist
organization. Then, the burden shifts to the applicant to prove ‘by a preponderance of the evidence’
that the bar does not apply.”]Included in the burden is the question: What constitutes a Tier III
organization? Id. at 289-93 [an organization is not a Tier III organization unless its party leaders
authorize terrorist activity committed by its members]. See also Khan v. Holder, 766 F.3d 689, 699 (7th
Cir. 2014) [“An entire organization does not automatically become a terrorist organization just because
some members of the group commit terrorist acts. The question is one of authorization”]; Hussain v.
Mukasey, 518 F.3d 534, 538 (7th Cir. 2008) [“An organization is not a terrorist organization just
because one of its members commits an act of armed violence without direct or indirect authorization,
even if his objective was to advance the organization’s goals”]; 9 FAM 302.6-2(B)(3)(b) [determining
how subgroup of organization may affect designation]. Thereafter, the burden shifts to the applicant to
prove the bar does not apply. 8 CFR §1240.8(d).
(7) Endorses or espouses terrorist activity, or persuades others to endorse or espouse terrorist activity or
support a terrorist organization;
(8) Has received military-type training (as defined in 18 USC §2339D(c)(1)) from or on behalf of any
organization that, at the time training was received, was a terrorist organization as defined. INA
§212(d)(3)(B)(i)(VIII).
(a) Duress Exemption—If USCIS, in consultation with ICE, agree, there is an exemption for persons
who received military-type training under duress even if it is a Tier I, II or III organization. Policy
Memo, USCIS, PM 602-0030, Implementation of New Discretionary Exemption Under INA Section
212(d)(3)(B)(i) For the Receipt of Military-Type Training Under Duress (Feb. 23, 2011), AILA Doc.
No. 11022470 [Duress may be established if the person meets certain threshold requirements,
there is a “reasonably perceived threat of serious harm” under the totality of the circumstances, and
if the applicant warrants discretion under the totality of the circumstances] Page 177
2.b. Spouses/Children—The spouse or child of a person who is inadmissible under this section is also
inadmissible if the activity causing inadmissibility occurred within the last 5 years. However, for a person
who espouses or supports terrorism, his or her child or spouse is not inadmissible if she did not know or
should not reasonably have known of the spouse’s activity or there are reasonable grounds to believe the
spouse has renounced the activity causing his or her inadmissibility. Spouses include same-sex
marriages. Matter of Zeleniak, 26 I&N Dec. 158, 159 (BIA 2013). It must be a current spouse. Ex-spouses
not subject to bar. USCIS, RAIO TRIG Program Branch, Terrorism-Related Inadmissibility Grounds (TRIG)
(Feb. 2017), at 34, AILA Doc. No. 17121239.
2.c. “Terrorist activity”—Defined under 8 USC §1182(a)(3)(B)(iii) as an act unlawful in a foreign country, or if
committed in the U.S. would be unlawful under U.S. law and involves:
Hijacking or sabotage of any conveyance;

The seizing or detaining or threatening to kill, injure, or continue to detain another individual to
compel a third person to carry on or abstain from an act as an explicit or implicit condition for
release;
A violent attack on an internationally protected person under 18 USC §1116(b)(4) [head of state,
foreign minister, representative, officer, employee or agent of a government];
An assassination;
The use of any biological or chemical agent or nuclear weapon/device or explosive, firearm, or
other weapon or dangerous device (other than for mere personal monetary gain), with intent to
endanger, directly or indirectly, the safety of one or more individuals or to cause substantial property
damage; Zumel v. Lynch, 803 F.3d 463, 474-76 (9th Cir. 2015) [the BIA failed to apply the clear
error standard where it did not acknowledge the proper standard of review, ignored facts found by
the IJ, and did not explain why the IJ erred in determining that respondent did not have the intent to
commit a terrorist act under §212(a)(3)(B)(iii)(V)(b)].
Any threat or attempt or conspiracy to commit the above acts.
The statute is not unconstitutionally vague. Hussain v. Mukasey, 518 F.3d 534, 537–38 (7th Cir. 2008)
[although statute stretches the definition of terrorism, it defines it; in denying cancellation, it is not relevant
that the MQM-H in Pakistan did not have a political agenda and was not hostile to the U.S.]; McAllister v.
U.S. Att’y Gen., 444 F.3d 178, 185–89 (3d Cir. 2006) [rejecting claim that terrorist definition under §212(a)
(3)(B)(iii)(V)(b) was unconstitutionally vague, that the definition of terrorist organization under §212(a)(3)
(B)(iv) required that person must act on his own or with a terrorist organization, as opposed to any
organization, and that political offense exception applied, but constraining the statute to contain a specific
intent requirement]. The Ninth Circuit has held that this provision “does not provide an exception for
armed resistance against military targets that is permitted under the international law of armed conflict,”
nor does it permit an exception for persons or organizations we regard as “freedom fighters.” Khan v.
Holder, 584 F.3d 773, 784–85 (9th Cir. 2009) [holding that international law standards including the U.N.
Convention and Protocol did not alter the INA exclusion based upon our domestic law definition of terrorist
activity and our law was not unconstitutionally vague]. See also Matter of S-K-, 23 I&N Dec. 936, 941 (BIA
2006) [terrorists include those people described as freedom fighters]. The Seventh Circuit has noted but
declined to address similar arguments. FH-T v. Holder, 723 F.3d 833, 840 (7th Cir. 2013) [declining to
reach argument that Eritrean liberation movement did not qualify as a terrorist organization because its
conduct was not unlawful under Eritrean law and would not have been unlawful under United States law
where “our domestic law did not bar our own independence movement against Britain … [and] the
Guarantee Clause, U.S. Const., Art. Iv. §4, [ ] promises a republican form of government and requires the
federal government to protect against invasion and domestic violence.”]. The Ninth Circuit has also
determined that activity amnestied under a country’s law does not affect a “terrorist activity” determination
because the statute focuses on “activity” not the individual and because the statute covers activity that, if
committed in the U.S., would be unlawful. Zumel v. Lynch, 803 F.3d 463, 472-73 (9th Cir. 2015). Page 178
2.d. “Engaged in terrorist activity”—Defined as either “in an individual capacity” or as “a member of an

organization”:
(1) To commit or incite to commit a terrorist activity under circumstances indicating an intention to cause
death or serious bodily injury;
(2) To prepare or plan a terrorist activity;
(3) To gather information on potential targets for terrorist activity; Haile v. Holder, 658 F.3d 1122, 1130
(9th Cir. 2011) [this section unlike the solicitation and material support provision does not have an
exception for “knowing” whether organization was a terrorist organization and person who gathered
such information for the Eritrean Liberation Front in late 1970s is inadmissible and therefore ineligible
for asylum, withholding and CAT withholding (but not deferral)]
(4) To solicit funds or other things of value for: (i) terrorist activity, (ii) a Tier I or Tier II terrorist
organization; or (iii) a Tier III organization unless the solicitor can demonstrate, by clear and convincing
evidence, that he did not know, and should not reasonably have known, that the organization was a
terrorist organization. Prior to the REAL ID Act addition of the clear and convincing standard, the
government’s determination was rejected, see Cheema v. Ashcroft, 383 F.3d 848, 856–59 (9th Cir.
2004) [two donations by wife to unspecified widows andorphans in India with no evidence linking it to
specific group is not a terrorist activity. However, husband’s fundraising did reach terrorist
organizations and unfavorable inferences can be drawn against him from telephone calls to Sikh
militants].
(a) To avoid constitutional problems, the criminal statute (18 USC §2339B(a)) has been construed to
require proof that the person “had knowledge of the organization’s designation [as a terrorist
organization] or knowledge of the unlawful activities that caused it to be so designated.”
Humanitarian Law Project v. DOJ, 352 F.3d 382, 385 (9th Cir. 2003). However, that standard has
not been applied in the immigration context, with respect to Tier III groups, and the INA appears to
provide for removal based on activities prior to an organization’s terrorist designation.
(5) To solicit individuals to engage in terrorist activity or for membership in terrorist organizations as
stated above and under the same standards. A person may be removed under this ground even if the
organization was not designated formally as a terrorist organization, unless the respondent can
“demonstrate by clear and convincing evidence that he did not know, and should not reasonably have
known, that the organization was a terrorist organization.” REAL ID Act §103(b); 8 USC §1182(a)(3)(B)
(vi)(III); Khan v. Holder, 584 F.3d 773, 785 (9th Cir. 2009) [former member of political wing of the
Jammu Kashmir Liberation Front (JKLF) who knew that the militant wing of the JKLF was involved in
armed struggle against the Indian government and had to be aware of their numerous terrorist attacks
through the media, was ineligible for asylum or withholding]. Prior to the REAL ID Act, this section
required that the organization be designated a terrorist organization at the time of the questionable
activity. When the organization was not designated, the individual did not know and could not
reasonably know that the solicitation furthered terrorist activity. Daneshvar v. Ashcroft, 355 F.3d 615,
625–29 (6th Cir. 2004) [reversing denial of MTR for AOS, where the alleged Iranian terrorist
organization, MEK, was not designated as such at the time the respondent engaged in conduct, and
where DHS failed to consider evidence regarding the mens rea exception and applicant’s state of mind
as a 16-year-old joining MEK when a Tier III organization].
(a) Duress Exemption for Solicitation of Funds or Members—USCIS, in consultation with ICE, may
agree not to apply the inadmissibility grounds of solicitation for funds or other things of value or
solicitation for membership under INA §212(a)(3)(B)(iv)(IV) and INA §212(a)(3)(B)(iv)(V) due to
duress whether in a Tier I, II or III organization. However, it does not include a duress exemption for
solicitation for a terrorist activity INA §212(a)(3)(B)(iv)(IV)(aa) or solicitation to engage in terrorism-
related conduct INA §212(a)(3)(B)(iv)(V)(aa). Policy Memo, USCIS, PM-602-0031, Implementation
of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Solicitation of Funds or
Members Under Duress (Feb. 23, 2011), AILA Doc. No. 11022474Page 179 [Duress may be raised
if the person meets certain threshold requirements, there is a “reasonably perceived threat of
serious harm” to him under the totality of the circumstances, and if the applicant warrants discretion
under the totality of the circumstances]
(6) Material Support Provision [INA §212(a)(3)(B)(iv)(VI)]
(a) In general—To commit an act that the actor knows, or reasonably should know, affords material
support, including a safe house, transportation, communications, funds, transfer of funds or other
material financial benefit, false documentation or identification, weapons (including chemical,
biological, or radiological weapons) explosives, or training: (i) for the commission of a terrorist
activity; (ii) to any individual the actor knows, or reasonably should know, has committed or plans to
commit a terrorist activity; (iii) to a Tier I or Tier II terrorist organization; (iv) to a Tier III terrorist
organization unless the actor can demonstrate, by clear and convincing evidence, that he did not
know, and should not reasonably have known, that the organization was a terrorist organization.
Khan v. Holder, 766 F.3d 689, 698 (7th Cir. 2014) [recruiting is material support and supporting only
peaceful political activities of terrorist organization is not a defense]; Abdoulaye v. Holder, 721 F.3d
485 (7th Cir. 2013) [planning a coup in Niger constituted terrorist activity under INA §§212(a)(3)(B)
(iii)(II), (a)(3)(B)(iv)(II) because governor was seized, thus disqualifying applicant for
asylum/withholding because he gave material support to terrorists under INA §212(a)(3)(B)(iv)(VI)];
Viegas v. Holder, 699 F.3d 798 (4th Cir. 2012) [providing monthly dues and hanging posters for
Front for the Liberation of the Enclave of Cabinda (FLEC) in Angola constitute material support
sufficient to deny asylum]; Haile v. Holder, 658 F.3d 1122 (9th Cir. 2011) [substantial evidence
supported material support by petitioner to Eritrean Liberation Front a Tier III terrorist organization
in late 1970s and therefore ineligibility for asylum, withholding and CAT withholding (but not
deferral)]. This section can apply to the provision of material support to an undesignated terrorist
organization before it was in effect. See Patriot Act §§411(c)(1)(A), 411(c)(3)(B)(ii), PL 107-56 §411,
155 Stat 272 (2001) [material support to Tier III organizations is retroactive], but see §411(c)(3)(A)
[certain exceptions to retroactivity for Tier I and Tier II organizations]. See also Bojnoordi v. Holder,
757 F.3d 1075, 1077 (9th Cir. 2014) [finding material support to Tier III organizations retroactive
dating back to assistance to MEK in the 1970s]; American Acad. of Religion v. Napolitano, 573 F.3d
115, 127–28 (2d Cir. 2009) [may apply the provision retroactively at least to aliens seeking
admission]. For USCIS considerations in determining material support see USCIS, RAIO TRIG
Program Branch, Terrorism-Related Inadmissibility Grounds (TRIG) (Feb. 2017), (Material Support
Considerations/Ransom) at 23-29, AILA Doc. No. 17121239. The criminal material support statute
under 18 USC §2339B has been upheld in the face of freedom of speech and association and
vagueness challenges, although it was construed not to apply to material support that was not
“directed to, coordinated with, or controlled by” designated terrorist organizations. Holder v.
Humanitarian Law Project, 561 U.S. 1, 36 (2010). For a discussion of other constitutional
challenges to the support statutes see U.S. v. Ahmed, 94 F.Supp.3d 394 (E.D.N.Y. 2015).
(b) Challenging a Material Support Claim—An applicant for a benefit or admission, or a person facing
removal for material support to a nondesignated terrorist organization [Tier III organization] may
seek to prove by “clear and convincing evidence” that she “did not know, and should not reasonably
have known that the [nondesignated] [Tier III] organization [as defined under INA §212(a)(3)(B)(vi)
(III)] was a terrorist organization.” INA §212(a)(3)(B)(iv)(VI)(dd). This exception does not apply to
material support to designated organizations. Khan v. Holder, 766 F.3d 689, 691-92 (7th Cir. 2014)
[discussion of material support to Tier I and Tier II as opposed to Tier III organizations]; Alturo v.
U.S. Att’y Gen., 716F.3d 1310 (11th Cir. 2013) [material support is determined at time support is
provided and subsequent demobilization of AUC in Colombia does not alter its former designated
status as a terrorist organization]. To be barred based upon material support for a Tier III
organization, the applicant had to Page 180 know or should reasonably have known that he was
engaged in an activity that was either unlawful where it took place or unlawful in the U.S. 8 USC
§§1182(a)(3)(B)(iii), (iv)(VI), (vi)(III). But when can a person reasonably be charged with knowledge
if he joined an organization that was peaceful and left because it became violent? Khan v. Holder,
766 F.3d 689, 699-702 (7th Cir. 2014) [although the court did not decide the issue due to
respondent’s failure to exhaust, it acknowledged that respondent must be aware that the terrorist
violence is group-sanctioned and not merely that some members are violent when he offered
material support]. For a further discussion regarding a waiver, see in this section ¶ 2.i (p.188), infra.
i) Burden of Proof—The burden of proof is on the respondent or applicant who must establish by
“clear and convincing evidence” that he did not know or have reason to know that the
organization was a terrorist organization. INA §212(a)(3)(B)(iv)(VI)(dd); Matter of S-K-, 23 I&N
Dec. 936, 942 n.5 (BIA 2006) [Chin National Front that fights against repression of Chins by the
illegitimate Burmese military government is a terrorist organization; contributions to the
organization need not be for terrorist purposes; a contribution of $685 over 11 months was
“material”]; cf. Matter of S-K-, 24 I&N Dec. 289 (AG 2007) [maintaining precedential value of BIA
decision but remanding to BIA in light of DHS decision to grant a waiver under INA §212(d)(3)
(B)(i) and not apply the “material support” bar]; S.A.B. v. Boente, 847 F.3d 542, 545-47 (7th Cir.
2017) [Ethiopian applicant subject to material support bar where she donated money to OLF,
recruited women to join and helped in fundraising and failed to meet “clear and convincing”
standard that she did not know, nor have reason to know, that OLF was a terrorist organization];
Bojnoordi v. Holder, 757 F.3d 1075, 1078 (9th Cir. 2014) [passing out flyers, writing articles and
training MEK members on the use of guns was material support and substantial evidence
showed the MEK was a Tier III organization in the 1970s and respondent did not show by “clear
and convincing evidence that he did not know, and should not reasonably have known” that
MEK was a terrorist organization]; Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004) [provision
of food and shelter for members of Tier III group is material support]. The “knowledge
requirement of the statute require[s] the consular officer to find that [the applicant] knew his
contributions provided material support; and the consular officer [is] required to confront [the
applicant] with the allegation against him and afford him the subsequent opportunity to
demonstrate by clear and convincing evidence that he did not know, and reasonably should not
have known, that the recipient of his contributions was a terrorist organization.” American Acad.
of Religion v. Napolitano, 573 F.3d 115, 118 (2d Cir. 2009) [district court had jurisdiction to
consider organizations’ First Amendment claim despite consular nonreviewability; case
remanded where consular officer precluded Islamic scholar visa applicant from establishing his
exemption under the material support provision]. See also 9 FAM 302.6-2(B)(3). A reason to
believe charge, however, requires more than “mere suspicion” as there must be “a probability
supported by evidence.” 9 FAM 302.4-3(B)(3)(b) [regarding drug trafficking]; Garces v. U.S. Att’y
Gen., 611 F.3d 1337, 1346 & n.9 (11th Cir. 2010) [following BIA decision that when
inadmissibility is a permanent bar there must be “close scrutiny” for the factual basis of the
charge]. And the clear and convincing burden does not require that “every alien seeking
admission to the United States to produce evidence proving clearly and beyond a doubt that he
is not [ineligible], unless there is already some other evidence—some ‘reason to believe’—that
he is one.” Garces, supra 611 F.3d at 1346.
ii) No Bifurcated Hearing—In Khan v. Holder, 766 F.3d 689, 696-97 (7th Cir. 2014) the Court
rejected the idea that a respondent was entitled to a bifurcated hearing first on whether he gave
material support and second that he had knowledge the organization was a terrorist
organization.
iii) “De Minimis” Support—The BIA has explicitly declined to decide whether a trivial or “de
minimis” amount of support qualifies as “material” support. Matter of S-K-, 23 I&N Dec. 936, 945
(BIA 2006). Page 181 CompareSingh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004) [holding that
small amounts of food and shelter consisted of material support] with Id. at 301 (Fisher, J.,
dissenting) [arguing that the support was too trivial and unconnected to terrorist activity to be
“material”]. In Barahona v. Holder, 691 F.3d 349, 353 n.7 (4th Cir. 2012) the court held it had no
jurisdiction to review the BIA’s ruling that allowing FLMN guerrillas to use the special rule
cancellation applicant’s kitchen was not de minimis. But see Id. at 356-58(Wynn, J.
dissenting)arguing that acquiescence to terrorists by allowing them use of applicant’s kitchen
does not constitute an “act” that “affords material support.” Id at 356-58. See also Jabateh v.
Lynch, 845 F.3d 332, 339-41 (7th Cir. 2017) [jurisdiction to review BIA legal conclusion of
material support and finding that Liberian respondent providing sporadic and infrequent
translating services on personal civilian matters (e.g., doctor’s appointments) for the titular head
of LUND was providing material support]; Sesay v. U.S. Att’y Gen., 787 F.3d 215, 221-22 (3d
Cir. 2015) [carrying weapons and ammunition for a terrorist group was not de minimis]; Alturo v.
U.S. Att’y Gen., 716 F.3d 1310 (11th Cir. 2013) [citing cases and implying that $300 per month
was not de minimis].
iv) Insignificant Material Support to Tier III Organizations—DHS by announcement in the Federal
Register, 79 FR 6913-15 (Feb. 5, 2014) will grant waivers in “reason to believe” cases under INA
§§212(a)(3)(B)(iv)(VI)(bb), (dd) under limited criteria. The waiver applies to all benefit
applications and for insignificant support to undesignated terrorist organizations, a member of
such an organization or an individual the applicant knew, or reasonably should have known, had
committed or planned to commit a terrorist activity. Family members may seek the waiver even if
the principal does not. The exemption may not be granted if the applicant knew that or should
have known that the terrorist activity was targeting noncombatant persons, U.S. citizens, or U.S.
interests or involved military-type training or provision of weapons, ammunition or explosives.
The grant of an exemption for one application “shall not control a decision regarding any
subsequent benefit or protection application.” Policy Memo, USCIS, PM 602-0113,
Implementation of the Discretionary Exemption Authority under Section 212(d)(3)(B)(i) of the
INA for the Provision of Certain Insignificant Material Support (May 8, 2015), AILA Doc. No.
15051961.
a) Knowledge—Applicant must establish he did not know or reasonably should not have known
that the support he provided could be directly used to engage in violent or terrorist activity,
such as providing weapons or explosives. Id. at 4
b) Intent—Applicant must show he did not intend to support terrorist organization. Intent and
motive may be inferred from the applicant’s statements and surrounding circumstances. Id.
at 4
c) Activities Constituting Insignificant Material Support—Material support is insignificant only if:

(1) it is minimal in amount; and (2) the applicant reasonably believed that it would be
inconsequential in effect. Adjudicators will evaluate the “relative value, fungibility, quantity
and volume, and duration and frequency” when determining whether it was minimal. Id. at 4
v) Limited Material Support to Tier III Organizations—An exemption may be provided if the
respondent/applicant provides “incidental” support: (i) for certain routine commercial
transactions; (ii) for certain routine social transactions; (iii) for certain humanitarian assistance;
or (iv) in response to “sub-duress pressure.” Policy Memo, USCIS, PM 602-0112,
Implementation of the Discretionary Exemption Authority under Section 212(d)(3)(B)(i) of the
INA for the Provision of Certain Limited Material Support (May 8, 2015), AILA Doc. No.
15051960. Incidental means “support that occurs as an unintended collateral result of routine
conduct. It does not mean that the material support must have been trivial (either in quantity or
in nature) to either the donor or recipient.” Id. at 3 n.3. The waiver applies to all benefit
applications and for limited support to undesignated terrorist Page 182 organizations, a member
of such an organization or an individual the applicant knew, or reasonably should have known,
had committed or planned to commit a terrorist activity. Id. at 2. Family members may seek the
waiver even if the principal does not. Id. at 6. It does not apply if the applicant knew that or
should have known that the terrorist activity was targeting noncombatant persons, U.S. citizens,
or U.S. interests or involved military-type training or provision of weapons, ammunition or
explosives. Id. at 4. The grant of an exemption for one application “shall not control a decision
regarding any subsequent benefit or protection application.” Id. at 7.
a) Knowledge—Applicant must establish he did not know or reasonably should not have known
that the support he provided could be directly used to engage in violent or terrorist activity,
such as providing weapons or explosives. Id. at 4
b) Intent—Applicant must show he did not intend to support terrorist organization. Intent and
motive may be inferred from the applicant’s statements and surrounding circumstances. Id.
at 5
c) Limited Material Support Defined—Id. at 5-6.
1) Routine Commercial Transaction means a transaction a person could or would engage in with any individual in
the ordinary course of business and occurs on substantially the same terms as other transactions of the same type,
regardless of the parties to the transaction.
2) Routine Social Transaction means a transaction that is motivated by specific, compelling and well-established or
verifiable family, social, or cultural obligations or expectations but not a generalized desire to help society or do
good.
3) Certain Humanitarian Assistance generally applies to aid provided with the purpose of saving lives and alleviating
suffering and is usually short-term, immediate, and arising out of an emergency situation. It may include employees,
volunteers, and individuals of humanitarian organizations.
4) Material Support Provided under Sub-Duress Pressure involves a reasonably perceived threat of physical or
economic harm, restraint, or serious harassment, leaving little or no reasonable alternative to comply with a
demand. Arises when providing support is the only reasonable means by which the applicant may carry out
important activities of his daily life such as education, employment or meeting basic personal or family needs.
vi) Mental State Defenses—The Third Circuit has stated, in dicta, that a person’s state of mind
may demonstrate s/he lacks the requisite intent to provide material support. McAllister v. U.S.
Att’y Gen., 444 F.3d 178, 181 (3d Cir. 2006) [definition of material support does not cover
“situations in which an alien has acted in self-defense or in which the alien lacks capacity to
meet the requisite intent”].
vii) Lawful Activity Defense—If the activities that the Tier III organization engaged in and that the
applicant supported were not unlawful in the place where they were committed or unlawful in the
U.S. she would be exempt from the inadmissibility ground. FH-T v. Holder, 723 F.3d 833, 838-42
(7th Cir. 2013) [discussing but declining to decide on exhaustion grounds whether actions by the
Eritrean People’s Liberation Front that applicant was aware of were lawful].
viii) Collateral Estoppel—USCIS may be collaterally estopped from asserting material support
when it previously granted asylum to applicant. Amrollah v. Napolitano, 710 F.3d 568, 571-72
(5th Cir. 2013) [government’s thorough cross-examination of respondent during asylum claim on
material support barred asserting material support during AOS]; Khan v. Johnson, 160
F.Supp.3d 1199 (C.D. Cal. 2016) [despite no direct findings, the IJ had to consider material
support in granting asylum and the government is therefore collaterally estopped from utilizing
the material support bar in an AOS proceeding]. Page 183
(c) Waiver Provision—In addition to establishing that the applicant did not know or have reason to
know that the organization was a terrorist organization when s/he provided material support, an
applicant may seek a waiver from the material support provision. Under INA §212(d)(3)(B)(i), the
Secy. of State and the Secy. of DHS in consultation with each other and the AG can, in their
“unreviewable discretion,” issue waivers of the material support and most other terrorism grounds
of inadmissibility as a result of the broad powers for waiver accorded them under the Consolidated
Appropriations Act, 2008, PL 110-161, Div. J §691(a), 121 Stat. 1844, 2364–65 (Dec. 26, 2007). For
a further discussion of the waiver provision, see in this section ¶ 2.i (p.188), infra.
(d) Group Exemption—In addition to the waivers there are also group based exemptions from the
material support and other provisions of INA §212(a)(3)(B). See in this section ¶ 2.i(4) (p.190), infra.
(e) Duress Exception Before IJ—Several federal courts and the BIA have now rejected the view that
there is a duress exception (as distinguished from a waiver, see below) to the material support bar.
Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). In Annachamy v. Holder, 733 F.3d 254 (9th Cir.
2013), the court rejected efforts to read exceptions into the material support bar for “duress” or
assisting “organizations engaged in legitimate political violence.” The court found that the duress
exception did not apply because: (1) the statute does not on its face apply an exception; (2)
Congress could have provided an exception as it did in 8 USC §1182(a)(3)(D)(i) regarding
Communist Party membership; (3) there exists an administrative waiver provision for duress; (4) the
Supreme Court’s decision in Fedorenko and Negusie do not lead to a different result; and (5) the
nonrefoulement provision of the Convention and Protocol Relating to the Status of Refugees and
U.N. Guidelines, which are advisory only, do not require an exception. See also Hernandez v.
Sessions, 884 F.3d 107 (2d Cir. 2018) [BIA’s determination in Matter of M-H-Z- entitled to deference
and the sole alternative through a DHS waiver does not violate due process]; Sesay v. U.S. Att’y
Gen., 787 F.3d 215, 222-24 (3d Cir. 2015) [only Secy. of DHS has authority to grant duress
exemption]; Alturo v. U.S. Att’y Gen., 716 F.3d 1310 (11th Cir. 2013) [material support provision
contains no express duress exception]; Barahona v. Holder, 691 F.3d 349, 353-56 (4th Cir. 2012)
[under Chevron deference no involuntary or duress exception to material support bar].
(f) Duress Exemption Waiver—An applicant in removal proceedings, if unable to apply for a duress
defense to material support before the IJ, may still seek a duress waiver before DHS. The Secy. of
DHS has provided for a waiver to exempt the “material support” provision for persons who provided
support under “duress” to terrorist organizations (e.g., asylees who were required to pay ransom or
extortion money). Memo, Chertoff, Secy. of DHS, Exercise of Authority Under Sec. 212(d)(3)(B)(i)
(Apr. 27, 2007), AILA Doc. No. 07050168; 72 FR 26138–39. See also in this section “Waiver under
INA §212(d)(3)(B)(i),” ¶ 2.i (p.188), infra.
i) To establish duress the following factors are considered: (1) could person have avoided giving
material support; (2) the severity and type of harm inflicted or threatened and if threatened the
likelihood of actual harm; and (3) to whom the harm was directed. DHS should also consider the
totality of the circumstances including: (1) the amount, type, and frequency of material support
provided, (2) the nature of the activities committed by the terrorist organization; (3) the
applicant’s awareness of those activities; (4) the passage of time since the material support; and
(5) the applicant’s conduct since that time. See Memo, Chertoff (Apr. 27, 2007), supra. The
exemption shall apply if the person satisfies DHS that he or she: (1) is seeking a benefit or
protection under the INA for which he or she is eligible; (2) passed background and security
checks; (3) fully disclosed all material support provided; and (4) is not a danger to the U.S. See
Memo, Scharfen, Deputy Director, USCIS (May 24, 2007), AILA Doc. No. 07070572, at ¶ II for
above threshold criteria and at ¶III B for additional criteria regarding the “totality of the
circumstances”. Page 184
ii) The duress exemption applies to a person who provides material support to certain Tier I and
Tier II organizations as designated under INA §212(a)(3)(B)(vi)(I) [Foreign Terrorist Organization
List] or INA §212(a)(3)(B)(vi)(II) [Terrorist Exclusion List] under the totality of the circumstances.
Memo, Aytes, Acting Deputy Director, HQ 70/2.1”Revised Guidance on the Adjudication of
Cases Involving Terrorist-Related Inadmissibility Grounds” (Feb. 13, 2009), AILA Doc. No.
09052173. It also applies to Tier III (undesignated terrorist organizations) under INA §212(a)(3)
(B)(vi)(III).
iii) To obtain a waiver due to a group based exemption or a duress exemption, an applicant must:
(1) establish that he is otherwise eligible for the immigration benefit; (2) pass all background and
security checks; (3) fully disclose all material support; and (4) establish he poses no danger to
the safety or security of the U.S. Memo, Scharfen, Deputy Director, USCIS ¶ II (May 24, 2007),
AILA Doc. No. 07070572. The procedures require oversight of any decision by the Material
Support Working Group at USCIS Headquarters. Memo, Aytes, Acting Deputy Director, HQ
70/2.1”Revised Guidance on the Adjudication of Cases Involving Terrorist-Related
Inadmissibility Grounds” (Feb. 13, 2009), AILA Doc. No. 09052173.
iv) Limitation on Review—No judicial review of a decision to grant or deny a waiver except in the
review of a final removal order and then only as to questions of law or constitutional questions
under INA §242(a)(2)(D). Review, however, may be broader post-Judulang v. Holder, 565 U.S.
42, 53, 55 (2011) [reviewing whether BIA committed “a clear error of judgment” and whether rule
it applied was “nonarbitrary” and based on “relevant factors”].
(g) Duress Exemption in Other Contexts—Duress may be raised as a defense in contexts other than
material support if the person meets certain threshold requirements, there is a “reasonably
perceived threat of serious harm” under the totality of the circumstances, and if the applicant
warrants discretion under the totality of the circumstances.
i) Military-Type Training—If USCIS, in consultation with ICE, agree there is an exemption for
persons who received military-type training under duress even if it is a Tier I, II or III
organization. Policy Memo, USCIS, PM 602-0030, Implementation of New Discretionary
Exemption Under INA Section 212(d)(3)(B)(i) For the Receipt of Military-Type Training Under
Duress (Feb. 23, 2011), AILA Doc. No. 11022470.
ii) Solicitation of Funds or Members—USCIS may, in consultation with ICE, agree not to apply the
inadmissibility grounds of solicitation for funds or other things of value or solicitation for
membership under INA §212(a)(3)(B)(iv)(IV) and INA §212(a)(3)(B)(iv)(V) due to duress whether
in a Tier I, II or III organization. However, it does not include a duress exemption for solicitation
for a terrorist activity INA §212(a)(3)(B)(iv)(IV)(aa) or solicitation to engage in terrorism-related
conduct INA §212(a)(3)(B)(iv)(V)(aa). Policy Memo, USCIS, PM-602-0031, Implementation of
New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Solicitation of Funds or
Members Under Duress (Feb. 23, 2011), AILA Doc. No. 11022474.
(h) Provision of Medical Care—Other than the provision of medical care to carry out a terrorist activity,
a waiver of the material support provisions may be obtained for the provision of medical care to a
terrorist organization, a member of a terrorist organization or an individual the applicant knew or
should have known has engaged or plans to engage in terrorist activity if the applicant: (a) is
otherwise eligible for a benefit under the INA; (b) has undergone and passed all security checks; (c)
has fully disclosed to the U.S. government the nature and circumstances of his provision of medical
care and any other conduct that may be considered terrorist activity; (d) has not voluntarily and
knowingly provided medical care on behalf of a Tier I or Tier II terrorist organization; (e) has not
voluntarily and knowingly provided medical care with the intent of furthering terrorist activities; (f)
poses no danger to the safety and security of the U.S.; and (g) warrants the exemption under the
totality of the circumstances. 76 FR 70463 (Nov. 14, 2011). Page 185 The exemption is
unnecessary if the medical professional provided care to a person that he did not know, nor could
reasonably have known has or planned to commit terrorist activity because then the ground of
inadmissibility is inapplicable. Policy Memo, USCIS, PM-602-0052, Implementation of New
Exemption Under INA Section 212(d)(3)(B)(i) for the Provision of Material Support in the Form of
Medical Care, (Nov. 20, 2011) at p.3, AILA Doc. No. 11112862. Note also the criminal statute
specifically excludes “medicine” (as well as “religious materials”) from the definition of material
support. 18 USC §2339B(b)(1).
i) The totality of the circumstances includes: (i) the purpose, extent, frequency, and nature of the
medical care provided; (ii) the circumstances under which it was provided; (iii) the applicant’s
involvement with the terrorist organization including past membership; (iv) the nature and
activities committed by the terrorist organization; (v) the applicant’s awareness of those
activities; and (vi) the applicant’s conduct since providing medical care. Id.
ii) Provision of medical care includes services provided by medical professionals including
physicians, nurses, dentists, psychiatrists or other mental health providers, emergency room
technicians, ambulance technicians, medical lab technicians, or other medical-related
occupations and related assistance by nonmedical professionals such as the provision of
emergency first aid services. Policy Memo, USCIS, PM-602-0052, Implementation of New
Exemption Under INA Section 212(d)(3)(B)(i) for the Provision of Material Support in the Form of
Medical Care (Nov. 20, 2011), AILA Doc. No. 11112862.
iii) A person who provided medical care may also argue for a duress exemption, independent of
this provision, on the grounds that the medical care was not given voluntarily but given under
duress. Policy Memo, supra at 3
(i) Exemption for Spouse and Children—If the alien is going to be exempt, the spouse or child does
not need a separate exemption to obtain the same benefit. In addition, USCIS may also consider
an exemption for the spouse or child even if the person being given the exemption is “not also
seeking admission or a benefit from USCIS.” Policy Memo (Nov. 20, 2011), supra at 5.
(j) USCIS “Hold Policy” and Compelling a Decision—USCIS had maintained for a number of years a
policy of holding cases in contemplation of future exemptions. See e.g., Policy Memo, USCIS, PM-
602-0137, Revised Guidance for Processing Asylum Cases Involving Terrorism-Related
Inadmissibility Grounds (TRIG) and Amendment to the Hold Policy for Such Cases, (Oct 5, 2016),
AILA Doc. No. 16101135 (citing other revised guidance including 602-0132, 602-0051)]. The
current policy is to no longer hold cases unless an exemption “is currently available.” Policy Memo,
USCIS, PM-602-0150, Revised Guidance for Processing Cases Subject to Terrorism-Related
Inadmissibility Grounds (TRIG) and Rescission of the Prior Hold Policy for Such Cases, (Oct. 19,
2017), AILA Doc. No. 17103131 [rescinding prior policies supra that provided holds for certain
cases pending future exemptions]. If cases are subject to the “TRIG” hold you may inquire at
TRIGQuery@uscis.dhs.gov. Courts have rejected efforts to compel USCIS to make a decision on
an AOS that has been pending for substantial periods of time while USCIS places cases on hold as
it reviews its Tier III material support position. Irshad v. Johnson, 754 F.3d 604 (8th Cir. 2014)
[Afghan asylee denied mandamus and APA relief to compel AOS pending over 4 years]; Beshir v.
Holder, 10 F.Supp.3d 165, 172-78 (D.D.C. 2014) [pace of decision on AOS pending 6 years for
Ethiopian with ties to OLF is discretionary and that view is supported by 8 USC §§1156b, 1255(a),
absence of congressional timeline, and national security considerations]; Geneme v. Holder, 935
F.Supp.2d 184 (D.D.C. 2013) [finding jurisdiction citing Kucana, but holding that 8-year delay in
deciding asylum case on hold for 5 years involving Ethiopian who provided financial support to
Oromo Liberation Front was not a violation of the APA under TRAC standards]; Bemba v. Holder,
930 F.Supp.2d 1022 (E.D. Mo. 2013) [finding jurisdiction, but under TRAC standards determining
that 6-year delay on AOS was Page 186 not unreasonable given government’s stay of cases
involving waivers of material support to Tier III terrorist organizations]; Namarra v. Mayorkas, 924
F.Supp.2d 1058, 1064-66 (D. Minn. 2013) [decision to place AOS on hold is a discretionary
decision barred from review by INA §242(a)(2)(B)(ii) and is otherwise committed to agency
discretion]; Seydi v. USCIS, 779 F.Supp.2d 714 (E.D. Mich. 2011) [following Singh v. Napolitano,
710 F.Supp.2d 123 (D.D.C. 2010) the court, pursuant to INA §242(a)(2)(B)(ii), determined that there
was no jurisdiction to compel USCIS to decide adjustment application that was pending because of
USCIS’s discretionary decision to put Tier III terrorism cases in abeyance]. Cf. Singh v. Napolitano,
909 F.Supp.2d 1164 (E.D. Cal. 2012) [finding INA §242(a)(2)(B)(ii) does not bar jurisdiction to
compel a decision under the APA 5 USC §706(1) but holding that the TRAC factors demonstrate
that 4-year delay in adjudicating a I-485 is not unreasonable].
(k) Criminal Context—In the criminal context, the government must prove a “material support” charge
by demonstrating the defendant knowingly provided support and knew that the organization was a
designated foreign terrorist organization, or engaged in terrorist activities. U.S. v. Abdi, 498
F.Supp.2d 1048, 1059–61 (S.D. Ohio 2007).
(l) Definition of Representatives—Representative for purposes of this section includes an officer,

official, or spokesman of an organization, and any person who directs, counsels, commands, or
induces an organization or its members to engage in terrorist activities. Humanitarian Law Project v.
Mukasey, 552 F.3d 916, 926 (9th Cir. 2009) rev’d on other grounds Holder v. Humanitarian Law
Project, 561 U.S. 1 (2010).
2.e. Terrorist Organization Defined—(i) An organization designated under §219 by the Secy. of State (“Tier
I”); (ii) an organization, otherwise designated, upon publication by DOS in the federal register, as a
terrorist organization after finding that the organization engages in terrorist activity including providing
material support (“Tier II”); or (iii) a group of 2 or more individuals whether or not organized that engages
in, or has a subgroup that engages in, terrorist activities, including providing material support (“Tier III”).
McAllister v. U.S. Att’y Gen., 444 F.3d 178, 185–89 (3d Cir. 2006) [rejecting challenge that the definition of
terrorist organization under §212(a)(3)(B)(iv) required that person must act on his own or with a terrorist
organization as opposed to any organization]. But see Singh v. Wiles, 747 F.Supp.2d 1223, 1227 (W.D.
Wash. 2010) [under APA reversed denial of AOS on terrorism grounds because claim that Sikh
organization Damdami Taksal was a Tier III terrorist organization was not rationally related to the facts];
Prior to the REAL ID Act, an organization that solely provided material support to a terrorist organization
was not, itself, considered a “terrorist organization” under the former INA §212(a)(3)(B)(vi). This was
changed by REAL ID.
2.f. Designation of FTOs—Congress established a procedure for the Secy. of State, in consultation with
Congress, to designate an organization as a foreign terrorist organization (FTO)
(1) Procedure for Designating FTOs—The Office of Coordinator for Counterterrorism at DOS is
responsible for designating FTOs. It not only looks at actual terrorist attacks that a group has carried
out, but also whether the group has engaged in planning and preparations for possible future acts. The
office then prepares an administrative record that includes both classified and nonclassified
information. If the Secy. of State, in consultation with the AG and Secy. of Treasury, decide to make the
designation, Congress is notified. Memo, DOS, Foreign Terrorist Organization Designation (Apr. 22,
2004), published in 81 No. 21 Interpreter Releases 681, 687–90 (May 24, 2004). The Secy. of State
then publishes it in the federal register. See e.g., 77 FR 14854 [designated Jemmah Anshorut Tauhid
(JAT) as terrorist organization]. The Secy. of State designated 8 persons as terrorists and 29
organizations as terrorist on Mar. 19, 2002. 67 FR 12633–34 (Mar. 19, 2002). At the same time the
Office of Foreign Assets Control issued blocking orders regarding property of terrorists and terrorist
organizations. 67 FR 12644–46 (Mar. 19, 2002). A current list of the designated FTOs, as well as other
related DOS information, can be found at http://1.usa.gov/fto-list.
(2) Other Methods for Designating Terrorist Organizations—INA §219(a) represents only one method for
designating Terrorist Organizations (FTO). An organization may also be designated by the Secy. of
State in consultation with or upon the request of the AG or the Secy. Page 187 of Homeland Security.
INA §212(a)(3)(B)(iv)(II) [Terrorist Exclusion List]. An organization may also be designated as an FTO
by the Department of Treasury pursuant to the International Emergency Economic Powers Act
(IEEPA), 50 USC §1701 et seq. Such designation would not render the organization a “Tier I” or “Tier
II” organization, but could render it a terrorist organization under “Tier III.” INA §212(a)(3)(B)(iv)(III).
Neither of these designations requires that the organization be a foreign terrorist organization.
(3) Procedures for Challenging FTO Designation
(a) Generally—An organization may submit a petition to revoke its §219 FTO status and provide
evidence that the relevant circumstances are sufficiently different from the circumstances that were
the basis for the designation. If no review has taken place within 5 years, the Secy. of State must
review the designation to determine whether such designation should be revoked. INA §219(a)(4).
See e.g., 80 FR 76611 (Dec. 9, 2015) [revoking designation of the Libyan Islamic Fighting
Group/LIFG as a terrorist organization]; 77 FR 41349 (July 15, 2014) [revoking terrorist designation
of AUC from Colombia]; 77 FR 60741 (Oct. 4, 2012)[delisting Mujahadin-e Khalq (MEK); 77 FR
54944 (Sept. 6, 2012) [delisting the Communist Party of Nepal as a terrorist organization]; 77 FR
52783 (Aug. 30, 2012) [maintaining FTO designation of Jaish-e-Mohammed (JEM and other
aliases)]; 77 FR 11186 (Feb. 24, 2012) [retaining Islamic Jihad Union on list]; 77 FR 4614 (Jan. 30,
2012) [re-designating Aum Shinrikyo]; 77 FR 4082 (Jan. 26, 2012) [maintaining FTO designation for
al-Qa’ida in Iraq]; 76 FR 17979 (Mar. 31, 2011) [retaining al-Aqsa Martyrs Brigade on terrorist
list].There is judicial review of the designation, re-designation or request to revoke the designation
under APA-like standards. INA §219(c)(3); People’s Mojahedin Organization of Iran v. DOS, 182
F.3d 17 (D.C. Cir. 2000) [unsuccessful challenge to DOS designation of two organizations]. In
designating organizations as terrorist with ties to the U.S. (which results in freezing their bank
accounts, making their members inadmissible into the U.S., and preventing them from receiving
donations), the Secy. violates due process by not affording the organizations notice of the
designation and an opportunity to present contrary evidence. National Council of Resistance of Iran
v. DOS, 251 F.3d 192 (D.C. Cir. 2001). Due process requires the Secretary in designating, or
reviewing an application to revoke the designation, to provide the FTO with the unclassified
information it is relying on and an opportunity to rebut the information before rendering a decision.
People’s Mojahedin Org. of Iran v. DOS, 613 F.3d 220 (D.C. Cir. 2010) [reviewing the statutory and
regulatory history and prior cases all concluding that under Mathews v. Eldridge due process
requires notice and an opportunity to rebut derogatory information]. For challenges to IEEPA
designation, see, e.g., Holy Land Found. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003). For successful
challenge to asset freezing during investigation or potential investigation, see KindHearts for
Charitable Humanitarian Dev., Inc. v. Geithner, 647 F.Supp.2d 857 (N.D. Ohio 2009) [OFAC order
blocking all assets of charitable organization pending decision whether to designate it as terrorist
organization violated Fourth and Fifth Amendments].
(b) Challenges During Removal Proceedings—INA §219(a)(8) provides that the validity of a §219
FTO designation cannot be raised as a defense or objection in removal proceedings. This provision
also applies to defendants in criminal prosecutions and has been upheld as constitutional. See U.S.
v. Afshari, 426 F.3d 1150 (9th Cir. 2005). Cf. National Council of Resistance of Iran v. DOS, 251
F.3d 192, 196 (D.C. Cir. 2001).
2.g. Membership in a Terrorist Organization—The statute does not define membership for purposes of
inadmissibility. DOS has taken the position that a person may be found inadmissible “without a finding of
actual participation in terrorist activities.” Membership should be determined from facts which include, but
are not limited to:
Acknowledgment of membership by the organization, by other members, or by the applicant;

Actively working to further the organization’s aims and methods in a way suggesting close affiliation
constituting membership, e.g., proposing legislation; Page 188
Occupying a position of trust in the organization, past or present;
Receiving financial support from the organization, e.g., scholarships, salary, pension;
Contributing money to the organization;
Determination of membership by a competent court;
Frequent association with other members;
Participation in the organization’s activities, even if lawful;
Voluntarily displaying symbols of the organization; and
Receiving honors or awards given by the organization.
Cable, DOS, 97-State-191813 (Oct. 9, 1997), reprinted in 75 No. 8 Interpreter Releases 294, 295–300
(Mar. 2, 1998). A person must be a current member; past membership is not a basis for inadmissibility.
However, if a person was a past member, current membership may be inferred absent a showing to the
contrary. Id. Termination may be shown by changes in a person’s attitude, actions, associations, and
activities over time. A single event “such as a self-serving resignation” would not usually establish that
membership has ended. Id.
2.h. Know or Reason to Know—To be inadmissible for being a member or representative in a terrorist
organization, the person must know or have reason to know that the organization is terrorist. This can be
met by facts peculiar to the individual applicant, publication in the federal register, and/or presentation of
the names of the organizations to applicants at the consular offices. Id.
2.i. Waiver under INA §212(d)(3)(B)(i)—In addition to a number of exemptions mentioned above (situational,
insignificant military support, duress) there are statutory exemptions/waivers. USCIS, RAIO TRIG
Program Branch, Terrorism-Related Inadmissibility Grounds (TRIG) (Feb. 2017), at 38-76, AILA Doc. No.
17121239.
(1) In General—The Consolidated Appropriations Act of 2008, PL 110-161, Division J, Sec. 691, 121
Stat. 1844, 2364-66 (Dec. 26, 2007); S. Hrg. 110-753, 7 (Sept. 19, 2007), has given the Secy. of State
in consultation with the AG or Secy. of DHS broad waiver authority over most terrorism related
provisions under INA §212(a)(3)(B). Memo, Aytes, Acting Deputy Director, USCIS, HQ 70/21.1.9,
Implementation of Section 691 of Division J of the Consolidated Appropriations Act, 2008 (Jul. 28,
2008), AILA Doc. No. 08081131. The waiver may be applied to applications for benefits or protection
under the INA, including asylum, refugee status, AOS, and following to join petitions and may be
based on a waiver involving a group or a waiver due to duress. Memo, Scharfen, Deputy Director,
USCIS ¶ I. D (May 24, 2007), AILA Doc. No. 07070572; Memo, Langlois, Chief, Asylum Division,
USCIS, HQASM 120/16.1 (June 1, 2007), reprinted in 12 Bender’s Immigr. Bull. 899, 974–79 (July 15,
2007) [providing field instructions for implementing the material support provisions in asylum cases]. To
obtain a waiver an applicant must: (1) establish that he is otherwise eligible for the immigration benefit;
(2) pass all background and security checks; (3) fully disclose all material support; and (4) establish he
poses no danger to the safety or security of the U.S. Memo, Scharfen, Deputy Director, USCIS ¶ II
(May 24, 2007), AILA Doc. No. 07070572. The waiver is in the “unreviewable discretion” of the
Secretaries of DHS/DOS and is not subject to judicial review except through an order of removal and
then only as to constitutional claims or questions of law under INA §242(a)(2)(D). The Secretary of
DHS delegated to USCIS the authority to grant immigration benefits to persons associated with “Tier
III” terrorist organizations who have previously been admitted as refugees, granted asylum, TPS, AOS
under NACARA or HRIFA, or granted a similar immigration benefit other than an NIV or are the
beneficiaries of an I-730. 77 FR 49821 (Aug. 17, 2012). In a subsequent policy memo, USCIS provided
for a “limited general” exemption from prior involvement in Tier III organizations based upon certain
criteria and USCIS’s unreviewable discretion in the totality of the circumstances. Policy Memo, USCIS,
PM-602-0073, Implementation of New “Limited General” Discretionary Exemption Under INA 212(d)(3)
(B)(i) For Qualified Applicants (Sept. 26, 2012). The Secretary of State may not grant a waiver during a
removal proceeding, although the DHS Secretary may do so. However, DHS has chosen not to
consider waivers until after a final order of removal and only where the person has been determined to
be eligible for the benefit “but for” the terrorism claim (e.g., asylum). Fact Sheet, USCIS, Department of
Homeland Security Implements Exemption Authority for Certain Terrorist-Related Inadmissibility
Grounds for Cases with Administratively Final Orders of Removal (Oct. 23, 2008), AILA Doc. No.
08112066Page 189 [discussing procedure including issuance of a Notice of Referral to USCIS from
ICE, the consideration of the waiver even if the case is on appeal to the circuit court, and the filing of a
joint motion if appropriate]. See FH-T v. Holder, 723 F.3d 833, 843-48 (7th Cir. 2013) [rejected
challenge to uncoordinated procedure between DOJ and DHS that allows a final order by an IJ/BIA
without reaching the asylum/benefits merits and DHS which declines to consider the waiver unless the
person was determined to be eligible by the IJ/BIA for the benefit “but for” the terrorism charge]. The
Consolidated Act exempted certain groups, including Hmong, Montagnard, and the CNF, that were the
subject of the AG’s decision in Matter of S-K-.In light of the Consolidated Act, DHS granted the
respondent in Matter of S-K- asylum and the BIA vacated its grant of deferral of removal and found no
need to address withholding. Matter of S-K-, 24 I&N Dec. 475 (BIA 2008).
(2) Insignificant Material Support Waiver—DHS in consultation with DOS and the AG has determined
that a person who has provided “insignificant material support” in “reason to believe” Tier III cases
under INA §§212(a)(3)(B)(iv)(VI)(bb), (dd) shall not bar a person from seeking “a benefit or protection
under the INA” under limited criteria. 79 FR 6913-15 (Feb. 5, 2014). The applicant must have: (i)
undergone and passed all security checks; (ii) fully disclosed in all applications and interviews the
nature and circumstances of any material support, other activity or association falling within the
terrorism bar, and any contact with terrorist organizations or members; (iii) not provided more than an
insignificant amount of material support to a Tier III organization or to any member, or to any individual
described in §212(a)(3)(B)(iv)(VI)(bb) [applicant knows or should know has committed or plans to
commit terrorist act]; (iv) not provided material support: (a) with intent to further terrorist or violent
activities; (b) that person knew or should have known could directly be used to engage in terrorist or
violent activity; (c) that person knew that an individual had or planned to commit a terrorist act on
behalf of a Tier I or Tier II organization; (v) not provided material support to terrorist activities that he
knew or should have known targeted noncombatant persons, U.S. citizens, or U.S. interests; (vi) not
provided material support to terrorist activity that he knew or should have known involved providing
weapons, ammunition, explosives or components thereof or the transportation or concealment of them;
(viii) not provided support for military-type training; (ix) not provided material support to Tier I or Tier II
organizations. The applicant must also “pose no danger to the safety or security” of the U.S. and
warrants the exemption “in the totality of the circumstances.” Decisions will be made by USCIS in
consultation with ICE or consular officers. The decision may be revoked at any time and may not apply
to subsequent applications or benefits.
(3) No Waiver for Certain Provisions—No waiver may be granted for: (1) persons for whom there are
reasonable grounds to believe are engaged in (present activities) or likely to engage in (future
activities) terrorist activity; (2) members or representatives of Tier I [organizations designated under
INA §219 (Foreign Terrorist Organization List)] or Tier II organizations [organizations otherwise
designated in the federal register (Terrorist Exclusion List)]; (3) persons who have voluntarily and
knowingly engaged in or endorsed or espoused or persuaded others to endorse or espouse or support
terrorist activity on behalf of a Tier I or Tier II organization; (4) persons who have voluntarily and
knowingly received military-type training from a Tier I or Tier II organization; and (5) any group
(designated as Tier III organization pursuant to INA §212(a)(3)(B)(vi)(III)) that has engaged in terrorist
activity against the U.S. or another democratic country or engaged in a pattern or practice of terrorist
activity directed at civilians. Memo, Aytes, Acting Deputy Director, USCIS, HQ 70/21.1.9,
2008), at 2, AILA Doc. No. 08081131. The last provision regarding terrorism against the U.S. or
democratic countries only bars group waivers and does not bar the granting of a waiver to an
individual. Annachamy v. Holder, 733 F.3d 254, 262-4 & n.11 (9th Cir. 2013). Page 190
(4) Group-Based Exemptions—The Secretaries of Homeland Security and State are also given the
authority to exempt or determine which organizations should not qualify as Tier III terrorist
organizations. These group-based determinations exempt groups from many of the provisions of INA
§212(a)(3)(B) and persons are no longer inadmissible if they solicited funds or individuals, provided
material support, were members or representatives, persuaded others to support, or received military
training from these groups. Memo, Aytes, Acting Deputy Director, USCIS, HQ 70/21.1.9,
2008) at 4–5, AILA Doc. No. 08081131.
(a) By Congressional Act—In the Consolidated Appropriations Act of 2008, PL 110-161, §691(b),
supra, Congress designated certain organizations that do not pose a threat to the U.S. and are not
considered terrorist organizations on the basis of any act or event that occurred before Dec. 26,
2007 (the date of the Act’s passage). The groups are the Karen National Union/Karen Liberation
Army (KNU/KNLA), the Chin National Front/Chin National Army (CNF/CAN), the Chin National
League for Democracy (CNLD) the Kayan New Land Party (KNLP), the Arakan Liberation Party
(ALP), the Tibetan Mustangs, the Cuban Alzados de Armas, the Karenni National Progressive
Party, and appropriate groups affiliated with the Hmong and the Montagnards. 73 FR 34770–777
(June 18, 2008 effective June 3, 2008). See Matter of S-K-, 24 I&N Dec. 475 (BIA 2008) [discussing
both Consolidated Appropriations Act and preexisting discretionary waiver authority]. As a result of
the exemptions a person is no longer inadmissible if he engages in the following acts (as long as
the organization has not engaged in terrorist activity after Dec. 26, 2007): (i) solicited fund or other
things of value on behalf of one of the named groups; (ii) solicited an individual for membership in
one of these named groups; (iii) provided material support; (iv) is a representative or member; (v)
persuaded others to support the group; or (vi) received military-type training from one of the groups.
Memo, Aytes (Jul. 28, 2008) supra at 3. But a person would still be inadmissible, notwithstanding
the exemption, if he engaged or is engaging in the following conduct: (i) committed or incited to
commit a terrorist activity with the intention of causing death or serious bodily injury; (ii) prepared or
planned a terrorist activity; (iii) gathered information on potential targets for terrorist activity; (iv)
solicited funds for a terrorist activity; (v) solicited an individual to engage in terrorist activity; (vi)
committed an act that person knows, or reasonably should have known, affords material support for
the commission of a terrorist activity or to any individual who the persons knows or reasonably
should know has committed or plans to commit a terrorist activity. Memo, Yates (Jul. 28, 2008), at
4–5. On Dec. 19, 2014 the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan
(PUK) were excluded from the definition of Tier III organizations under INA §212(a)(3)(B)(vi)(III) by
virtue of the National Defense Authorization Act for Fiscal Year 2015, PL 113-291 Title XII, Subtitle
E, Sect. 1264(a)(1), 128 Stat. 3292. Policy Memo, USCIS, PM 602-0109, Implementation of
Section 1246(a)(1), Subtitle E, Title XII of the National Defense Authorization Act for Fiscal Year
2015, and Update Process Requirements for Discretionary Exemptions to Terrorism-Related
Inadmissibility Grounds for Activities and Associations Relating to the Kurdistan Democratic Party
and the Patriotic Union of Kurdistan (Mar. 13, 2015), AILA Doc. No. 15033001 [exempting KDP and
PUK members from terrorist designation who solicited funds or members, provided material
support, are representatives or members themselves, persuaded others to support the
organizations or received military-type training from them. However, others may still be inadmissible
as a matter of discretion].
(b) By the DHS Secretary (in consultation with AG and DOS Secy.)—The Secy. of Homeland Security,
in consultation with AG and Secy. of State has exercised authority to exempt certain groups from
the material support provision or other voluntary activity as follows: 2006—for Burmese Karen
individuals living in refugee camps in Thailand who provided support for Karen National Union
(KNU) or Karen National Liberation Army (KNLA); Chin refugees from Burma in Malaysia, India or
Thailand who provided support to Chin National Front (CNF) or Chin National Army (CNA); Page
191 2007—for refugee resettlement applicants to provide material support to: (1) KNU/KNLA; (2)
CNF/CNA; (3) Chin National League for Democracy (CNLD); (4) Kayan New Land Party (KNLP);
(5) Arakan Liberation Party (ALP); (6) Tibetan Mustangs; (7) Cuban Alzados en Armas; and (8)
Karenni National Progressive Party (KNPP); 2007—By notice in the Federal Register, the Secy. of
Homeland Security exempted the above 8 groups from the application of the material support bar.
72 FR 9954–57 (Mar. 6, 2007). The National Liberation Army of Colombia (ELN) is also exempt,
Memo [Authorization to USCIS], Rosenzweig, Deputy Asst. Sec., Policy, DHS (Dec. 18, 2007),
AILA Doc. No. 08041772, as is the provision of material support under duress to the Revolutionary
Armed Forces of Colombia (FARC), Memo, Scharfen, Deputy Director, USCIS (Sept. 6, 2007),
reprinted in 12 Bender’s Immigr. Bull. 1527, 1593 (Nov. 1, 2007); 2009—for certain activities and
associations regarding the Iraqi National Congress (INC), Kurdish Democratic Party (KDP) and the
Patriotic Union of Kurdistan (PUK), Kielsmeier, Acting Deputy Director, USCIS, Implementation of
New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) for Activities Related to the INC,
KDP and PUK (Jan. 23, 2010), AILA Doc. No. 11030133; 2010—for (1) All Indian Sikh Students
Federation–Bittu Faction (AISSF-Bittu), Policy Memo, USCIS, PM-602-0024 (Dec. 29, 2010), AILA
Doc. No. 11010530, 76 FR 2130 (Jan. 12, 2011); (2) All Burma Students’ Democratic Front
(ABSDF), Policy Memo, USCIS, PM 602-0025 (Dec. 29, 2010), AILA Doc. No. 11010531; 76 FR
2131 (Jan. 12, 2011); 2011—for military-type training with a terrorist organization under INA §212(d)
(3)(B)(i)(VIII) where person under duress Policy Memo, USCIS, PM 602-0030, Implementation of
New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Receipt of Military-Type
Training Under Duress (Feb. 23, 2011), AILA Doc. No. 11022470; for solicitation for funds or other
things of value or solicitation for membership under INA §212(a)(3)(B)(iv)(IV) and INA §212(a)(3)(B)
(iv)(V) due to duress whether in a Tier I, II or III organization. However, it does not include a duress
exemption for solicitation for a terrorist activity INA §212(a)(3)(B)(iv)(IV)(aa) or solicitation to
engage in terrorism-related conduct INA §212(a)(3)(B)(iv)(V)(aa). Policy Memo, USCIS, PM-602-
0031, Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the
Solicitation of Funds or Members Under Duress (Feb. 23, 2011), AILA Doc. No. 11022474. 2012—
for the Kosovo Liberation Army. Policy Memo, USCIS, PM-602-0068, Implementation of New
Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For Activities and Associations Relating
to the Kosovo Liberation Army, AILA Doc. No. 12071343 [Exemption for soliciting funds, soliciting
members, providing material support or receiving military-type training; showing of duress not
required; does not include material support that targeted noncombatants or U.S. interests; nor
persons subject to indictment by international tribunal; exemption not binding on future
adjudications]; for Iraqis involved in uprising from Mar. 1 to Apr. 5, 1991 against Saddam Hussein,
Policy Memo, USCIS, PM-602-0076, Implementation of New Exemption Under INA Section 212(d)
(3)(B)(i) for Participation in the Iraqi Uprisings Nov. 12, 2012), AILA Doc. No. 13022544[factors to
consider are the purpose, extent, frequency and nature of participation in the Iraqi uprisings, the
circumstances of the participation, the nature of others’ actions and the applicants awareness of
their activities, whether the applicant participated in any violence and his conduct since the
uprisings; 77 FR 51545-46 (Aug. 24, 2012); 2013—for ARENA (Alianza Republicana Nacionalista)
and FLMN (Farabundo Martí National Liberation Front) regarding all terrorist activity during the civil
war that was directed against military, intelligence or related forces of the Salvadoran government
but excluding “reason to believe” cases for persons who are engaged or likely to engage in terrorist
acts. 78 FR 24225-26 (Apr. 24, 2013); See also Policy Memo, USCIS, PM-602-0082,
Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) for Activities
and Associations Relating to ARENA or FLMN (May 22, 2013), AILA Doc. No. 14081461[exempts
voluntary activities or associations under certain circumstances regardless of whether they
occurred under duress]; DMLEK (Democratic Movement for the Liberation of Eritrean Kunama) for
solicitation of funds, membership, material support, or receipt Page 192 of military-type training. 78
FR 66036-37 (Nov. 4, 2013), Policy Memo, USCIS, PM-602-0098, Implementation of New
Discretionary Exemption Under INA Section 212(d)(3)(B)(i) for Activities and Associations Relating
to the Democratic Movement for the Liberation of Eritrean Kunama (DMLEK) (June 15, 2014), AILA
Doc. No. 14081463 [voluntary activities and association in regard to above matters without regard
to duress]; ELF (Eritrean Liberation Front) for solicitation of funds, membership, material support, or
receipt of military-type training on or after Jan. 1, 1980 or prior to Jan. 1, 1980 engaged in the
conduct with ELF and was granted asylum, admitted as a refugee, or was the beneficiary of an I-
730 under certain conditions. 78 FR 66037-38 (Nov. 4, 2013), Policy Memo, USCIS, PM-602-0099,
Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) for Activities
and Associations Relating to the Eritrean Liberation Front (ELF) (June 15, 2014), AILA Doc. No.
14081464[exempts voluntary activities or association in regard to the above matters without regard
to duress]; OLF (Oromo Liberation Front), Policy Memo, USCIS, PM-602-0096, Implementation of
New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) for Activities and Associations
Relating to the Oromo Liberation Front (OLF) (Dec. 31, 2013), AILA Doc. No. 14081462 [exempts
voluntary activities or associations regarding solicitation of funds or individuals, material support, or
military type training without regard to duress]; 2014—EPRP (Ethiopian People’s Revolutionary
Party), Policy Memo, USCIS, PM-602-0100, Implementation of New Discretionary Exemption Under
INA Section 212(d)(3)(B)(i) for Activities and Associations Relating to the Ethiopian People’s
Revolutionary Party (EPRP) (June 15, 2014), AILA Doc. No. 14081465 [exempts voluntary
activities or association in regard to solicitation of funds or individuals, material support, or military-
type training without regard to duress]; TPLF (Tigray People’s Liberation Front), Policy Memo,
USCIS, PM-602-0101, Implementation of New Discretionary Exemption Under INA Section 212(d)
(3)(B)(i) for Activities and Associations Relating to the Tigray People’s Liberation Front (TPLF)
(June 15, 2014), AILA Doc. No. 14081466 [exempts voluntary activities or association in regard to
solicitation of funds or individuals, material support, or military-type training without regard to
duress]; 2016—81 FR 21891-92 (Apr. 13, 2016); Policy Memo, USCIS, PM-602-0135 (June 2,
2016) applying to the following groups assuming: (i) they are seeking a benefit under the INA; (ii)
have undergone background checks; (iii) have fully disclosed their involvement: (iv) have not
participated in or provide material support to terrorists; (v) poses no danger to the U.S. and (vi)
warrant an exemption in the totality of the circumstances: All Burma Muslim Union, Arakan Army,
Hongsawatoi Restoration Army/Party, Kachin Independence Army, Kachin Independence
Organization, Karen National Defense organization, Karenni Nationalities People’s Liberation Front,
Kawthoolei Muslim Liberation Front, Kuki National Army, Mon National Liberation Army, Mon
National Warrior Army, Myeik-Dawei United Front, National Democratic Front, National United Party
of Arakan, New Democratic Army Kachin, New Mon State Party, Parliamentary Democracy Party,
People’s Democratic Front, Ramanya Restoration Army, Shan State Army, Zomi Reunification
Organization/Zomi Revolutionary Army;
(c) Exceptions to Exemption Authority of Secretaries of DOS/DHS—The Secretaries may not exempt:
(i) groups that have engaged in terrorist activity against the U.S. or another democratic country; and
(ii) groups that have purposefully engaged in a pattern or practice of terrorist activity that is directed
at civilians. Memo, Aytes, Acting Deputy Director, USCIS, HQ 70/21.1.9, Implementation of Section
691 of Division J of the Consolidated Appropriations Act, 2008 (Jul. 28, 2008) at 2, AILA Doc. No.
08081131.
(5) Judicial Review—Under the terms of the statute, the Secretary of DOS or Secretary of DHS has
“unreviewable discretion” to determine whether certain grounds of inadmissibility in the terrorist
provisions should not apply to a group or particular applicants. However, the bar to judicial review does
not preclude a challenge to the procedures used in denying adjustment in contrast to the merits of the
decision. Ahmed v. Mayorkas, 719 F.Supp.2d 1080 (N.D. Cal. 2009) [INA §212(d)(3)(B)(i) did not bar
review of constitutional challenge to procedures used to determine waiver denial]. Nor does it
necessarily preclude a challenge Page 193 to a denial instituted in bad faith.Kerry v. Din, 576 U.S. __,
135 S.Ct. 2128 (2015) [Whether a showing of bad faith is required to surmount consular
nonreviewability remains an open question after a fractured decision in which three Justices
determined there was no liberty interest created by the denial of a USC’s IV petition for her spouse, but
Justice Kennedy for himself and Justice Alito held that, even if one assumed there was a liberty
interest, that absent bad faith, the constitutional right did not trump the national security interest under
the facially legitimate and bona fide standard in Mandel in the context of a INA §212(a)(3)(B) denial;
under INA §212(b)(3) the government is not required, but may in its discretion, offer any details for its
decision to deny the IV, but the recitation of the broad terrorist statute alone is sufficient to meet the
facially legitimate and bona fide standard; in Justice Breyer’s dissent four justices held that the IV
petitioner had a due process liberty interest requiring government disclosure sufficient to apprise the
petitioner of the reason for denial of her spouse’s visa even in a national security case].
2.j. Retroactive Application—The changes made to the definition of terrorist activity and terrorist organization
in the USA PATRIOT Act apply retroactively to any action taken before, on, or after Oct. 26, 2001. USA
PATRIOT Act, PL 107-56, §411(c), 115 Stat. 272 (2001). The Secy. of State with the AG may decide not to
apply the law retroactively to a person who committed acts outside the U.S. before Oct. 26, 2001, if a
consular officer concludes that there is no reasonable grounds to believe that the person knew or
reasonably should have known that his actions would further a terrorist activity. The changes made by the
REAL ID Act, PL 109-13, 119 Stat. 231 (2005), Div. B, §103, apply to removal proceedings instituted
before, on or after May 11, 2005, and apply to acts and conditions constituting a ground of inadmissibility
or deportation existing before, on or after May 11, 2005. One circuit court has upheld these retroactivity
provisions as applied to the ground of inadmissibility while reserving questions concerning deportability.
American Acad. of Religion v. Napolitano, 573 F.3d 115, 128 (2d Cir. 2009). In the criminal context, of
course, retroactive application of material support and solicitation provisions would violate the Ex Post
Facto provision. Al Bahlul v. U.S., 767 F.3d 1 (D.C. Cir. 2014) (en banc) Military commissions Act violated
Ex Post Facto clause by retroactively criminalizing material support and solicitation].
2.k. Terrorist Screening Center; Terrorist Threat Integration Center (TTIC) Identities Database—Pursuant to
the Homeland Security Presidential Directive 6 dated Sept. 16, 2003, titled “Integration and Use of
Screening Information” to protect against terrorism, the Secy. of State, the AG, the Secy. of DHS and the
Director of the CIA entered into a “Memorandum of Understanding On the Integration and Use of
Screening Information To Protect Against Terrorism.” Homeland Security Presidential Directive-6, Bush
(Sept. 16, 2003), reprinted in 80 No. 36 Interpreter Releases 1305–06, 1322 (Sept. 22, 2003). The MOU
established a Terrorist Screening Center that consolidates the government approach to terrorism. The
Center is to maintain a consolidated database, ensure consistent application of the law, provide
operational support to assist in the identification of persons screened and will be under a Director who will
report to the AG through the Director of the FBI. The database, Terrorist Screening Database (TSDB) is
designed to include all information the government possesses related to the identities of individuals
“known or appropriately suspected to be or have been involved in activities constituting, in preparation for,
in aid of, or related to terrorism.” The Intelligence Reform and Terrorism Prevention Act of 2004, renamed
TTIC to the National Counterterrorism Center (NCTC), under the authority of the U.S. Director of National
Intelligence. NCTC maintains the classified Terrorist Identities Datamart Environment (TIDE) database.
NCTC nominates international terrorists to the TSDB, while the FBI nominates domestic terrorists.
Additionally, a Purely Domestic Terrorism Information database will continue to be maintained separately
by the FBI. MOU, Powell, et al., Integration and Use of Screening Information to Protect Against Terrorism
(Sept. 16, 2003), AILA Doc. No. 03092540. The Terrorist Screening Center maintains the TSDB, which
feeds other watch lists downstream. TSA uses the Terrorist Screening Database to designate persons
under a No-Fly List or a Selectee List to screen airline passengers. Those on the No-Fly List are
prohibited from flying; those on the Selectee List are subject to enhanced security. The State Department
uses a subset of the Database to screen visa applicants through CLASS. Ibrahim v. DHS, 669 F.3d 983,
988-90 (9th Cir. 2014). DHS shares the same database regarding terrorist screening maintained by the
FBI known as the Terrorist Screen Database System of Records. 76 FR 39408 (July 6, 2011). Page 194
3. Association with Terrorist Organizations [INA §212(a)(3)(F), 8 USC §1182(a)(3)(F)]—Any person who the
Secy. of State or the AG determines has been associated with a terrorist organization and intends to engage
solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the U.S. is
inadmissible. This section is made retroactive to any acts undertaken before, on, or after Oct. 26, 2001. USA
PATRIOT Act §411(c), 115 Stat. 272 (2001).
4. Foreign Policy Grounds [INA §212(a)(3)(C), 8 USC §1182(a)(3)(C)]
4.a. In General—A person is inadmissible if the Secy. of State has reasonable grounds to believe that his or
her entry or proposed activity in the U.S. “would have potentially serious adverse foreign policy
consequences for the United States.” See e.g., Press Release, DOS, New U.S. Visa Restrictions on
Iranian Officials for Human Rights Abuses (July 8, 2011), AILA Doc. No. 11071160 [Secy. of DOS
announced restrictions on 50 Iranian officials pursuant to this section].
The BIA has interpreted the analogous deportation statute, INA §237(a)(4)(C), to require only that the
Secy. of State set forth “a facially reasonable and bona fide basis” for a determination of adverse foreign
policy consequences. Matter of Ruiz-Massieu, 22 I&N Dec. 833, 842 (BIA 1999). The Board regarded its
role as “ministerial” as “neither the AG nor her delegates have a role in the determination.” Id. The BIA
also sought to limit discovery stating “there is no prejudice to the respondent if he is not allowed to cross-
examine the Secretary regarding the contents of the letter” the Secretary submits. Id. at 845 n.13.
4.b. Exception for Foreign Officials—An official of a government (or purported government) or a candidate
for election to a foreign government office (immediately prior to the election) is not inadmissible for past
conduct, statements, or beliefs that are lawful in the U.S.;
4.c. Exception for Other Persons—All other aliens are not inadmissible for statements and acts that would
be legal in the U.S. unless the Secy. of State “personally determined that the … admission would
compromise a compelling United States foreign policy interest.” If the Secy. makes the determination, she
must notify the Senate and House Judiciary and Foreign Relations Committee. The Conference Report
noted: “It is the intent of the conference committee that this authority would be used sparingly and not
merely because there is a likelihood that an alien will make certain remarks about the United States or its
policies. Furthermore, the conferees intend that the ‘compelling foreign policy interest’ standard be
interpreted as a significantly higher standard than the general ‘potentially serious adverse foreign policy
consequences standard.…’ The fact that the Secy. of State personally must inform the relevant
congressional committees when a determination of [inadmissibility] is made under this provision is further
indication that the conferees intend that this provision be used only in unusual circumstances.” H.R. Conf.
Rep. No. 955 at 6794, 101st Cong., 2d Sess. at 129 (1990).
5. Immigrant Membership in Totalitarian Party [INA §212(a)(3)(D), 8 USC §1182(a)(3)(D)]—Any immigrant

who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision
or affiliate), domestic or foreign, is inadmissible. “Affiliate” defined at 22 CFR §40.34(a).
5.a. Exception for Involuntary Membership—Applicableif the membership is or was involuntary, solely under
the age of 16, by operation of law or for the purpose of obtaining employment, food rations, or other
essentials of living. Whether membership was voluntary or a “meaningful association” has been
addressed by the courts and the Board. Rowoldt v. Perfetto, 355 U.S. 115 (1957); Matter of Rusin, 20 I&N
Dec. 128 (BIA 1989). See also INA §§101(a)(2) and (e), 8 USC §§1101(a)(2) and (e); 22 CFR §40.34.
5.b. Exception for Past Membership–Applicable if the membership or affiliation terminated at least 2 years
before application for admission (or 5 years if a member of a party controlling the government), and he or
she is not a threat to U.S. security; or
5.c. Exception for Close Family Members—The AG may grant a waiver to the parent, spouse, son,
daughter, brother, or sister of a USC or a spouse, son or daughter of an LPR for “humanitarian purposes,
to assure family unity or when it is otherwise in the public interest if [the immigrant] is not a threat to the
security of the United States.” INA §212(a)(3)(D)(iv), 8 USC §1182(a)(3)(D)(iv). Page 195
5.d. IMMACT90 substantially changed this area of law by permitting persons who are members of
Communist or anarchist parties to enter as nonimmigrants. This issue had been actively litigated for many
years. Kleindienst v. Mandel, 408 U.S. 753 (1972); Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986),
aff’d per curiam by an equally divided court, 484 U.S. 1 (1987); Adams v. Baker, 909 F.2d 643, 648–50
(1st Cir. 1990); American-Arab Anti-Discrimination Comm. v. Thornburgh, 940 F.2d 445 (9th Cir. 1991),
amended and superseded on denial of reh’g, 970 F.2d 501 (9th Cir. 1991); Rafeedie v. INS, 795 F.Supp.
13, 21–23 (D.D.C. 1992); Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988); Matter of Hajdu, 16 I&N Dec.
497 (BIA 1978).
6. Nazis, Persons Committing Genocide, Persons Committing Torture
INA §212(a)(3)(E), 8 USC §1182(a)(3)(E), S. Rep. No. 108-209, 2003 WL 22846178; Cable, 10-State-063167
(June 2010), AILA Doc. No. 10070164
6.a. In General—Nazis or former Nazis are inadmissible. INA §212(a)(3)(E)(i). At least one court has ruled
that to be inadmissible, a Nazi must have personally engaged in persecution and not have been
involuntarily involved. Petkiewytsch v. INS, 945 F.2d 871 (6th Cir. 1991). See also Laipenieks v. INS, 750
F.2d 1427, 1431 (9th Cir. 1985) [evidence must establish that the individual in question personally
ordered, incited, assisted or otherwise participated in the persecution]. But see Negele v. Ashcroft, 368
F.3d 981, 983 (8th Cir. 2004) (and cases cited therein) [an armed guard and dog-handler at concentration
camp, without proof of direct involvement in persecution, is sufficient for removal]; Maikovskis v. INS, 773
F.2d 435 (2d Cir. 1985).
6.b. Genocide—Any person who ordered, incited, assisted, or otherwise participated in conduct outside the
U.S. that would be genocide under 18 USC §1091(a) is inadmissible. INA §212(a)(3)(E)(ii), 8 USC
§1182(a)(3)(E)(ii). Genocide for purposes of this section has been defined consistent with the International
Convention on the Prevention and Punishment of Genocide to include any of the following acts committed
with the intent to destroy, in whole or part, a national, ethnic, racial, or religious group: (1) killing members
of the group; (2) causing serious bodily or mental harm to members of the group; (3) deliberately inflicting
on the group conditions of life calculated to bring about its physical destruction in whole or part; (4)
imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the
group to another group. Memo, Pearson, Ex. Assoc. Comm., Field Operations (HQADN 70/21.1-12-P)
(July 19, 1999), AILA Doc. No. 99071992.
6.c. Torture/Extrajudicial Killing—Any person who outside the U.S. committed, ordered, incited, assisted, or
otherwise participated in torture under 18 USC §2340 or, under color of law of any foreign nation, any
extrajudicial killing as defined in section 3(a) of the Torture Victim Protection Act (TVPA) is inadmissible.
INA §212(a)(3)(E)(iii), 8 USC §1182(a)(3)(E)(iii). In Matter of D-R-, 27 I&N Dec. 107, 115-23 (BIA 2017)
the BIA adopted the following standards for determining an applicant’s assistance and participation in
extrajudicial killings by considering: (1) the nexus between the alien’s role, acts, or inactions and the
extrajudicial killing; and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. In
regard to nexus, the Board will look to the degree the person’s acts had to the persecution and whether
his role was material or integral to the killing, meaning whether his role contributed to the ultimate harm.
Mere acquiescence or membership in an organization is insufficient for culpability. 27 I&N Dec. at 120. In
regard to scienter, direct proof of actual knowledge is not required. The person need only have sufficient
knowledge that the consequences of his actions may assist in acts of extrajudicial killing. 27 I&N Dec. at
120-21. In the prior decision in the same case, Matter of D-R-, 25 I&N Dec. 445, 451-56 (BIA 2011) the
BIA held that the law incorporates command responsibility concepts in the “otherwise participated”
language, the law is retroactive, and the IJ could base his findings that respondent knew or had reason to
know that Bosnian Muslims who were stopped by a patrol under his command would be subject to
summary execution based upon reasonable inferences from direct and circumstantial evidence. See also
Abdallahi v. Holder, 690 F.3d 467, 474-77 (6th Cir. 2012) [upheld denial of AOS under this section of
person who served as guard while others being tortured, had prior knowledge that they would be tortured,
and had some role (pouring water on those tortured and bringing them to interrogation) regarding those
tortured];
7. Violators of Religious Freedom [INA §212(a)(2)(G), 8 USC §1182(a)(2)(G)]—A person who while serving
as a foreign government official was responsible for or carried out, at any time, severe violations of religious
freedom as defined in Section 3 of the International Religious Freedom Act of 1998 (PL 105-292) Page 196 is
inadmissible. Spouse and children are also inadmissible. Violations of religious freedom include arbitrary
prohibitions on, restrictions of, or punishment for religious assembly, religious speech, changing religious
affiliation, possession and distribution of religious literature, and raising a child in the religious teachings of
one’s choice. It also includes detention, interrogation, forced religious conversion, forced labor and other acts
because of a person’s religious beliefs or practices. In determining whether someone is a foreign government
official, DHS may look to the definition at 9 FAM 302.7-3(B)(2) and consult with DOS. Memo, Pearson, Ex.
Asst. Comm., Field Operations (HQADN 70/21.1.1-P) (July 9, 1999), reprinted in 76 No. 27 Interpreter
Releases 1091, 1103–06 (July 19, 1999). The provision applies to all admissions after Oct. 27, 1998. Id. See
also, Cable, 10-State-063167 (June 2010), AILA Doc. No. 10070164.
8. Recruitment of Child Soldiers—A person who has engaged in the recruitment or use of child soldiers in
violation of 18 USC §2442 is inadmissible. INA §212(a)(3)(G); 8 USC §1182(a)(3)(G). DOS has determined
this means “reason to believe” has engaged in the activity. And the provision is retroactive. 9 FAM 302.7-8(B)
(2). A person is deemed to violate §2442 if he recruits, enlists or conscripts a person under 15 to participate
in combat or military activities related to combat, or directs support for such combat or activities. See also
Cable, 10-State-063167 (June 2010), AILA Doc. No. 10070164.
9. The Cuban Liberty and Democratic Solidarity Act of 1996—Makes inadmissible and denies a visa to any
person who the Secy. of State determines after Mar. 12, 1996, has confiscated property, traffics in
confiscated property, or is a corporate officer, principal, or shareholder with a controlling interest in an entity
which has been involved in the confiscation of property or trafficking in confiscated property in Cuba, where
there is a claim of ownership by a U.S. national. This section also applies to the spouse, minor child, or agent
of such person. The law permits an exemption for medical reasons or for purposes of litigation under this Act,
and guidelines drafted by INS also exempt diplomats of foreign governments and representatives of
international organizations. 61 FR 30655–56 (June 17, 1996).
10. Confiscators of American Property—The Secy. of State may deny a visa to any person who, through the
abuse of position, including a governmental or political party position, converts or has converted for personal
gain, real property that has been confiscated or expropriated, where there is a claim of ownership by a
national of the U.S. It also includes those who are complicit with a confiscator or induce such action.
Omnibus Consolidated Approp. Act, PL 105-277, Div. G (Foreign Affairs Reform and Restructuring Act of
1998) §2225, 112 Stat. 2681–819 (1998). 8 USC §1182d. The Asst. Secy. of State for Economic and
Business Affairs makes the determinations under this section. A person subject to this provision will be sent
prior notification that his name will be put in the appropriate lookout systems and will be given 45 days to
respond. The provision does not apply to property in any country established by international mandate
through the U.N. or to any territory recognized to be in dispute by the U.S. 64 FR 29731 (June 2, 1999).
11. Persons Who Disclose Confidential Business Information—The Secy. of State “shall deny a visa to,
and the [AG] shall exclude” a person: (1) who previously served as, an officer or employee of the
Organization for the Prohibition of Chemical Weapons and disclosed any U.S. confidential business
information in the course of his employment or official duties that resulted in financial loss or damages to a
U.S. national; (2) who traffics in U.S. confidential business information, where there is a proven claim of
ownership by a U.S. national; or (3) who is a corporate officer, principal, shareholder with a controlling
interest of an entity which has been involved in the unauthorized disclosure. Includes spouses, minor
children, or agents. Omnibus Consolidated Approp. Act, PL 105-277, Div. I (Chemical Weapons Convention
Implementation Act of 1998), §103(f), 112 Stat. 2681–85 (1998).
12. Certain Haitian Nationals Accused of Human Rights Violations—Ineligible for visas. Department of
Commerce, Justice and State, the Judiciary and Related Agencies and Appropriations and Emergency
Supplement Act, 1998, PL 105-119, 111 Stat. 2440, Sec. 621 (Nov. 26, 1997), Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999, PL 105-277, 112 Stat. 2681 (Oct. 21, 1998) §616;
Consolidated Appropriations Act, 2004, PL 108-199, 118 Stat. 3 (Jan. 23, 2004) Div. B, title VI, §616. This
includes persons who are credibly alleged to be involved in certain political killings, members of the Haitian
High Command involved in the 1991 coup against the democratically elected government of Jean Bertrand
Aristide, persons credibly alleged to be members of FRAPH, persons involved in the execution of certain
political figures including Antoine Page 197 Izmery, Guy Malary, Father Jean-Marie Vincent, and Mireille
Durocher Bertin, persons on a list provided to President Aristide by Tony Lake, and persons who the FBI
sought to interview in connection with the execution of Mireille Durocher Bertin.
13. Iranian Citizens Studying Nuclear Science—Iran Threat Reduction and Syria Human Rights Act of 2012,
PL 112-158, Sec. 501. The Sec. of State shall deny a visa to, and the Sec. of Homeland Security shall deny
entry to any citizen of Iran who seeks to enter the U.S. to participate in coursework at an institution of higher
education to prepare the person for a career in the energy sector of Iran or in nuclear science or nuclear
engineering or a related field in Iran.
14. Forced Abortion or Sterilization Policies—Consolidated Appropriations Act, 2000, PL 106-113, 113 Stat.
1501, Sec. 801 (Nov. 29, 1999). Any foreign national whom the Secy. of State finds, “based on credible and
specific information, to have been directly involved in the establishment or enforcement of population control”
by forced abortion or sterilization is inadmissible “unless the Secretary has substantial grounds for believing
that the foreign national has discontinued his or her involvement with, and support for, such policies.” 8 USC
§1182e; Cable, 10-State-063167 (June 2010), AILA Doc. No. 10070164.
15. Aiders or Abettors to Colombian Insurgent and Paramilitary Groups—Consolidated Appropriations

Act, 2004, PL 108-199, 118 Stat. 3 (Jan. 23, 2004), §564. Any person whom the Secy. of State determines,
based on credible evidence, has: (1) willfully provided any support to the Revolutionary Armed Forces of
Colombia (FARC), the National Liberation Army (ELN) or the United Colombian Self Defense organization
(AUC) including taking or failing to take actions which allow, facilitate, or otherwise foster the activities of such
group; or (2) committed, ordered, incited, assisted or otherwise participated in the commission of gross
violations of human rights, including extrajudicial killings, in Colombia. The Secy. of State may waive this
provision on a case-by-case basis for urgent humanitarian reasons or to support the peace process in
Colombia.
16. Persons Engaged in Coerced Organ or Bodily Tissue Transplantation—PL 107-228, Div. A, title II §232
(Sept. 30, 2002), 116 Stat. 1372; Cable, 10-State-063167 (June 2010), AILA Doc. No. 10070164. A visa shall
not be issued where there is “credible and specific information” that an applicant has been “directly involved
with the coercive transplantation of human organs or bodily tissue” unless the foreign national has
discontinued his involvement or support of such practices. This provision does not apply to heads of state,
heads of government, or cabinet-level ministers. A waiver in the national interest is available. 8 USC §1182f.
17. Burmese Involved in Repression—Tom Lantos Block Burmese JADE Act, PL 110-268, Section 5(a)(1)
denies admissibility to present and former leaders and certain officials of the State Peace and Development
Council, the Burmese military and the Union Solidarity Development Association and their families. 22 CFR
§41.21(d)(4), 73 FR 56729 (Sept. 30, 2008).
18. Presidential Proclamations and Executive Orders
18.a. In General—The President also has used Executive Proclamations or Executive Orders (EOs) to
suspend the admission of persons into the U.S., INA §212(f), 8 USC §1182(f); 9 FAM 302.11. EO 13810,
82 FR 44705-09 (Sept. 20, 2017) [Under Sec. 5, blocking IVs and NIVs for a broad range of North
Koreans engaged in business activity]; EO 13726, 81 FR 23559-62 (Apr. 21, 2016) [Under Sec. 2, blocks
IVs and NIVs for persons whose actions or policies threaten the peace, security or stability of Libya]; EO
13722, 81 FR 14943-46 (Mar. 15, 2016) [Under Sec. 4, blocks IVs and NIVs who have engaged in,
facilitated or been responsible for human rights abuses, nuclear or ballistic missile programs,
cybersecurity, or censorship in N. Korea]; EO 13692, 80 FR 12747-51 (Mar. 11, 2015) [denying NIVs and
IVs to national intelligence officers, a prosecutor, and others in Venezuela who the U.S. government
believes have participated in undermining human rights and democracy in Venezuela]; EO 13687, 80 FR
819 (Jan. 1, 2015) [responding to North Korea’s cyberattacks, the EO blocks property and denies NIV and
IV entry of persons affiliated with the N. Korean government or who provide them material support or
donations]; EO 13685, 79 FR 77357-59 (Dec. 24, 2014) [blocking property of person who operate in
Crimea region of Ukraine and suspending entry of NIV and IVs of persons who fall within the blocking
order]; EO 13667, 79 FR 28387 (May 12, 2014) [blocking assets and denying NIV and IV entry to persons
in the Central African Republic threatening the peace, security and stability of the CAR]; EO 13664, 79 FR
19283 (Apr. 7, 2014) [blocking assets and entry to Page 198 the U.S. for NIVs and IVs who have been
involved in actions that threaten the peace or violate human rights in South Sudan]; EO 13660 at sec. 2,
79 FR 13493 (Mar. 10, 2014) [suspending entry of IVs and NIVs of persons whose actions and policies
have undermined democratic processes in Ukraine]; EO 13645 at sec. 11, 78 FR 33945 (June 5, 2013)
[suspending entry of NIVs and IVs who assist in circumventing Iranian sanctions]; EO 13628, 77 FR
62139-45 (Oct. 12, 2012) [suspending entry of IVs and NIVs from Iran for person who are human rights
abusers or who engage in censorship or restrict free speech]; EO 13619, sec. 5, 77 FR 41243-45 (July 11,
2012) [suspending NIV and IV status from Burma to those who have obstructed political reform or sold
arms to North Korea]; Proclamation 8697, 76 FR 49277-78 (Aug. 9, 2011) [suspending entry of IVs and
NIVs of persons who participate in serious human right and humanitarian law violations and other
abuses]; Proclamation 8693, 76 FR 44751-55 (July 27, 2011) [suspension of IVs and NIVs of persons
subject to the U.N. Security Council Travel Bans or persons whose property or interest in property have
been blocked under the International Emergency Economic Powers Act—aimed at transnational
organized crime]; Proclamation 7750, 69 FR 2287–88 (Jan. 12, 2004) [suspending IVs and NIVs from
entering if they are public officials or former public officials engaged in corruption having a serious
adverse effect on U.S. national interest]; Proclamation 7524, 67 FR 8857–58 (Feb. 26, 2002) [suspension
of IVs and NIVs of persons who undermine or injure Zimbabwe’s democratic institutions]; Proclamation
7452, 66 FR 34775–76 (June 26, 2001) [suspending the entry of persons who seek to undermine peace,
stability, reconciliation or democratic development in the Western Balkans]; Proclamation 7249, 64 FR
62561 (Nov. 12, 1999) [suspending IV and NIV entry of Yugoslav officials responsible for repression in
Kosovo]; Proclamation 7060, 62 FR 65987–88 (Dec. 12, 1997) [suspending senior officials of UNITA in
Angola and adult members of their immediate families for IVs and NIVs]; Proclamation 6925, 61 FR 52233
(Oct. 3, 1996) [denying entry for NIVs and IVs and their immediate families from Burma who formulate,
implement or benefit from policies that impede Burma’s transition to democracy]; Proclamation 5377, 50
FR 41329 (Oct. 10, 1985) [suspending NIV entry of officers and employees of the Cuban Government or
Cuban Communist Party], see City of New York v. Baker, 878 F.2d 507 (D.C. Cir. 1989); Proclamation
4865, 46 FR 48107 (Sept. 29, 1981); EO 12324, 46 FR 48109 (Sept. 29, 1981); EO 12807, 57 FR 23133–
34 (May 24, 1992), to interdict Haitians seeking to enter the U.S. Sale v. Haitian Ctrs. Council, 509 U.S.
155 (1993); Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992); Haitian Refugee Ctr., Inc.
v. Baker, 949 F.2d 1109 (11th Cir. 1991). This includes the power to suspend the entry of persons aboard
commercial airlines who do not comply with regulations regarding document fraud. IIRIRA §124.
18.b. The Travel Bans by Executive Order—For the first time since the passage of INA §212(f), Executive
Orders were issued to ban all citizens of certain countries. In contrast to the targeted narrow approach
that Executive Orders have been used in the past (see above), three Executive Orders were issued in
2017-18 that have the effect of banning 150 million Muslims from the United States and all citizens of at
least seven countries. This unprecedented use of presidential power is currently being challenged in the
federal courts and will likely be resolved by the U.S. Supreme Court. Each of the “travel bans” are
addressed below:
(1) EO 13796, Protecting the Nation From Foreign Terrorist Entry Into the United States (Jan. 27, 2017),
82 FR 8977-82 (Feb. 1, 2017)—The EO (1) suspended the U.S. refugee admissions program for 120
days and limited overall refugee admissions to 50,000; (2) banned all Syrian refugees; (3) banned IVs
and NIVs for 90 days from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen (excluding diplomats,
NATO visas, C-2 for travel to the U.N., and G-1 to G-4 visas); (4) provided for the potential future ban
of other countries who “place violent ideologies over American law” or “who engage in acts of bigotry
or hatred” including honor killings; (5) suspended the Visa Interview Waiver Program and required all
interviews for NIVs to be in person; (6) directed all agencies to develop screening standards and
procedures for all immigration benefits; (7) directed the expeditious completion of the entry-exit system
authorized by Congress; (8) directing the DOS, DHS and AG to consider rescinding authority to waive
grounds of terrorism under INA §212; and (9) required DHS to issue a report setting forth information
needed from other countries to adjudicate “any visa, admission or other benefit” and suggested their
failure to comply would result in their being placed on a visa ban. Pursuant to the EO and at the
request of DHS, all immigrant and nonimmigrant visas Page 199 from the seven affected countries
were provisionally revoked. Ramotowski, Deputy Asst. Sec, Bureau of Consular Affairs, DOS (Jan. 27,
2017), AILA Doc. No. 17013109. Various other directives were issued by CBP, and DOS, AILA Doc.
No. 17032333, 17032335, 17032337. The ban was instantly met by litigation throughout the United
States. An immediate effect was DHS’s efforts to narrow the ban by interpreting it to not include LPRs.
Kelly, DHS Sec. Statement on the Entry of Lawful Permanent Residents into the U.S. (Jan. 29, 2017),
AILA Doc. No. 17012962. The district court in the State of Washington issued a nationwide injunction
enjoining the order with respect to the travel ban from the seven Muslim countries and the ban on
refugee admissions. See e.g., Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040 (W.D.
Wash. Feb. 3, 2017). The orderwas treated as a preliminary injunction and was left in place by the
Ninth Circuit, which found that the government failed to satisfy the basis for a stay in light of the
plaintiffs’ due process claims and a possible Establishment Clause claim. Washington v. Trump, 847
F.3d 1151 (9th Cir. 2017) [maintaining the injunction with respect to Sec. 3(c), relating to the 90-day
ban on entry from the 7 Muslim countries, and Secs. 5(a)–(c), relating to the 120-day ban on refugees,
the complete ban on Syrian refugees, and prioritizing claims based upon religious persecution of
minorities]. A preliminary injunction enjoining the enforcement of Sec. 3(c) was also issued by the
district court in Aziz v. Trump, 234 F.Supp.3d 724 (E.D. Va. 2017).
(2) EO 13780, Protecting the Nation From Foreign Terrorist Entry Into the United States (Mar. 6, 2017),
82 FR 13209-19 (Mar. 9, 2017). In order to cure some of the deficiencies of EO 13769, a second order
was issued that exempted LPRs and others groups and removed Iraq from the list of banned
countries. Secs. 2-3. The remainder of the travel ban was kept in effect. This order was also
successfully challenged. International Refugee Assistance Project v. Trump, 241 F.Supp.3d 539 (D.
Md. 2017) [enjoined sec. 2(c) of the EO that related to the travel ban from six Muslim countries];
Hawaii v. Trump, 241 F.Supp.3d 1119 (D. Haw. 2017) [enjoining the travel ban on six nations under
Sec. 2 and the refugee ban under Sec. 6]. These injunctions were upheld. International Refugee
Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017); Hawaii v. Trump, 859 F.3d 741 (9th Cir.
2017). The government sought a stay of these injunctions which the Supreme Court granted in part.
Trump v. Int’l Refugee Assistance Project, 582 U.S. __, 137 S.Ct. 2080, 2088 (2017) [the court lifted
the injunction on section 2(c) regarding the travel ban from six Muslim countries “with respect to
foreign nationals who lack any bona fide relationship with a person or entity in the United States” and
as for entities “the relationship must be formal documented and formed in the ordinary course, rather
than for the purpose of evading EO-2”]. The Court of Appeals decisions were eventually vacated as
moot because EO 13780 §2(c) expired by its own terms on Sept. 24, 2017. Trump v. Int’l Refugee
Assistance Project, Summary Disposition of Writ of Certiorari, 138 S.Ct. 353 (Oct. 10, 2017). On Oct.
24, 2017 the Supreme Court also vacated as moot the Ninth Circuit’s opinion. Trump v. Hawaii, 138
S.Ct. 377 (Oct. 24, 2017).
(3) Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting
Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Sept. 24, 2017),
82 FR 45161-72 (Sept. 27, 2017). This third order continues the ban on Muslim countries but
expanded it to include Chad and certain government officials from Venezuela. Chad has since been
withdrawn from the ban. Presidential Proclamation 9723, Maintaining Enhanced Vetting Capabilities
and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-
Safety Threats (Apr. 10, 2018), 83 FR 15937-40 (Apr. 13, 2018). Proclamation 9645 is based upon the
directive in EO 13780 that vetting criteria be established for IVs, NIVs and others seeking immigration
benefits. Pursuant to that directive, three categories of criteria were established: (i) identity-
management information; (ii) national security and public safety; and (iii) national security and public-
safety risk assessment. Proclamation §1(c). Based upon these criteria, Iran, Libya, North Korea, Syria,
Venezuela and Yemen did not meet the criteria, and therefore entry restrictions were recommended,
§§1(g),(h)(ii), and remain. DOS, Revisions to Presidential Proclamation 9645 (Apr. 10, 2018), AILA
Doc. No. 18041331.
(a) Restrictions for Each Country—Iran: IVs and all NIVs except F/M/J visas; Libya: IVs and B-1/B-
2s; North Korea: IVs and NIVs; Syria: IVs and NIVs; Venezuela: B1/B-2 visas but only for persons
working in Ministry of Popular Power for Interior, Page 200 Justice and Peace; Administrative
Service of Identification, Migration and Immigration; the Scientific, Penal an Criminal Investigation
Service Corps; the Bolivarian National Intelligence Service; and the Ministry of Popular Power for
Foreign Relations—and their immediate family members; Yemen: IVs and B-1/B-2; Somalia: IVs
only
(b) Scope of Restrictions [§§3(a),(b)]—Apply only to persons outside the U.S. on the effective date, do
not have a valid visa on the date, and do not qualify for a visa due to the cancellation of their visa
under the first EO. The restrictions do not apply to: (1) LPRs; (2) parolee or person admitted after
effective date; (3) person with a documents other than a visa such as a transportation letter,
boarding foil, or advance parole; (4) dual national traveling on a passport issued by a
nondesignated country; (5) A/NATO/C-2/G-1 to G-4; (6) asylee.
(c) Waivers [§3(c)]—May be granted if: (A) denying entry would cause undue hardship; (B) entry
would not pose a threat to the national security or public safety of the U.S.; and (C) entry would be
in the national interest. Factors to consider are whether the foreign national: (i) has previously been
admitted to the U.S. for a continuous period of work, study, or other long-term activity; (ii) has
previously established significant contacts with the U.S.; (iii) seeks to enter the U.S. for significant
business or professional obligations and the denial of entry would impair those obligations; (iv)
seeks to enter to visit or reside with a close family relative who is a USC, LPR, valid NIV and the
denial would cause the foreign national undue hardship; FAQs, DOS Bureau of Consular Affairs,
Presidential Proclamation on Visas, reprinted in 94 No. 37 Interpreter Releases Art. 1, Appx III, 35-
40 (Sept. 25, 2017) [defining close family]; (v) is an infant, a young child or adoptee, an individual
needing urgent medical care, or someone whose entry is otherwise justified by special
circumstances; (vi) has been employed by or on behalf of the USG; (vii) is traveling for purposes
related to an international organization designated under the International Organization Immunities
Act; (viii) is a Canadian permanent resident; (ix) is traveling as an exchange visitor; (x) is traveling
to the U.S. at the request of the USG for legitimate law enforcement, foreign policy, or national
security purposes. §3(c)(iv). Only 2 waivers of 8,406 applications have been granted as of Feb. 22,
2018. Letter, Waters, Asst. Sec. Legislative Affairs, DOS (Feb. 22, 2018), AILA Doc. No. 18030735.
(d) Litigation—A preliminary injunction was issued against the EO limitations on issuance of visas to
Muslim countries (Chad, Iran, Libya, Syria, Yemen and Somalia). Hawaii v. Trump, 265 F.Supp.2d
1140 (D. Haw. 2017). The injunction was upheld on appeal. Hawaii v. Trump, 878 F.3d 662 (9th Cir.
2017) [finding Proclamation violates the INA, exceeds the President’s authority under INA §212(f),
and that the President lacked independent constitutional authority to issue it]. See also Intern.
Refugee Assistance Project v. Trump, 265 F.Supp.3d 570 (D. Md. 2017). The injunction reaching
only Muslim countries was partially upheld on appeal. Intern. Refugee Assistance Project v. Trump,
883 F.3d 233 (4th Cir. 2018) [upholding injunction under the Establishment Clause but extending it
only to individuals who had a credible bona fide relationship with individuals or entities in the U.S.].
The Supreme Court, however, granted the government’s request for a complete stay pending
review of the district courts’ preliminary injunctions Trump v. Hawaii, 138 S.Ct. 377 (Dec. 4, 2017);
Trump v. IRAP, 138 S.Ct. 542 (Dec. 4, 2017), and the Proclamation’s bans have gone into effect
pending a decision of the Supreme Court.
19. Secretary of State Authority to Ban Entry—The Secy. of State is also given he authority to order consular
officers to discontinue issuing IVs and NIVs to a person from a country that does not accept its citizens who
are deported. INA §243(d); 9 FAM 601.12. Under this authority unspecified visa sanctions were announced
against Cambodia, Eritrea, Guinea, and Sierra Leone. See in this chapter “Sanctions Against Countries for
Refusing Deportees,” Section X.Z (p.712), infra.
20. AG Authority to Ban Entry—The AG is also given authority where it is determined that there is “an actual
or imminent mass influx of aliens arriving on the coast of the United States or near a land border” that
presents urgent circumstances requiring a federal response, to authorize state and local Page 201 law
enforcement officers with approval of appropriate authority of state or local level to perform DHS duties. 8
USC §1103(a)(8).
J. Waivers of Inadmissibility
1. U.N. Headquarters Agreement—Despite the numerous grounds of inadmissibility, the U.S. is obligated
under the U.N. Headquarters Agreement to allow persons to enter the country who would otherwise be
inadmissible who are attending to U.N. matters. 22 CFR §41.21(d)(4)(i).
2. INA §212(a) Waivers—There are a number of waivers specifically written into sections of INA §212. For
example, INA §212(a)(9)(B)(v) waives the 3/10 year bar under §212(a)(9)(B) and INA §§212(a)(9)(C)(ii) & (iii)
waives inadmissibility for unlawful reentry after removal or remaining in the U.S. unlawfully for more than one
year in the aggregate under §212(a)(9)(C). These waivers are discussed above, in the respective sections
relating to the ground of inadmissibility. The waivers may be obtained through CBP at a port of entry, field
office, or admissibility review office, through USCIS or through a DOS consulate abroad. All I-601 waivers,
with accompanying I-212 waiver where appropriate, are filed in the U.S. unless: (1) the applicant resides in
Cuba; or (2) the applicant resides in a country where there is an international USCIS office and the Field
Office Director in the office is satisfied that there are “exceptional and compelling circumstances that require
the immediate filing,” such as medical emergencies, threats to personal safety, aging out issues, and
adoptions, where petitioner has an immediate need to depart. The office can also accept an I-290B if the
applications are denied. Policy Memo, USCIS, PM-602-0062.1, Exceptions for Permitting the Filing of Form I-
601 and Any Associated Form I-212, (Nov. 30, 2012), AILA Doc. No. 12120568. USCIS has also established
a manual for the adjudication of the I-601 waivers. USCIS, Adjudicating I-601 Waivers (Aug. 2015), AILA
Doc. No. 15082741a [includes extensive training manuals and guidelines for USCIS officers]. In addition
USCIS has set forth a policy memorandum that provides for the circumstances under which an I-601 waiver
will be expedited. Policy Memo, USCIS, PM-602-0038.1, Requests to Expedite Adjudication of Form I-601
Filed by Individuals Outside the United States, (June 6, 2012), AILA Doc. No. 12060750; AFM at 41.7.
Criteria for extraordinary circumstances warranting expedited processing of an I-601 include: (1) urgent and
critical medical needs that cannot be addressed in-country; (2) family member in U.S. has a serious medical
condition that requires assistance by applicant; (3) death or serious illness of a family member; (4) applicant
or qualifying family member is particularly vulnerable due to age, serious medical condition or disability and
vulnerability is exacerbated by applicant not being in U.S.; (5) applicant is at risk of serious harm due to
personal circumstances distinct from country conditions in general; (6) it would be in national interest to have
applicant in the U.S.; or (7) in the case of a member of the Armed Forces, the family member is or will soon
be deployed and in light of the deployment there are compelling reasons to expedite the request due to
impact on the applicant, qualifying family member or their children. USCIS may also expedite if visas
numbers will retrogress and a child, not protected by the CSPA, will age out. USCIS will address an expedite
within 5 days and will notify the applicant only if the expedite is granted within 15 days. No notice to deny
expedites will be provided. Waivers based upon a spousal relationship also includes same-sex spouses.
Matter of Zeleniak, 26 I&N Dec. 158, 159 (BIA 2013). For further information, see “I-601 Waivers” in Chapter
8, Section XIV.L (p.1705), infra.
3. Cancellation of Removal for LPRs—INA §240A(a), 8 USC §1229b(a) [similar to former INA §212(c)]—
Under IIRIRA §304, Congress eliminated INA §212(c) relief and replaced it with cancellation of removal for
LPRs. To qualify, an applicant must be lawfully admitted for permanent residence for not less than 5 years, be
residing continuously in the U.S. for 7 years after having been admitted in any status, and not be convicted of
any aggravated felony. For a detailed discussion of the requirements and case authority concerning this
highly limited form of relief, see Chapter 8, Relief from Removal (p.1621 et seq.), infra.
4. Continuing Availability of §212(c) Waivers—See Chapter 8, ¶ V.B.7 (p.1652), infra.
5. INA §209(c)—[8 USC §1159(c)] Waives most grounds of inadmissibility for persons seeking AOS as
refugees or asylees. It provides that the public charge, labor certification, and lack of IV documents are
inapplicable, and it allows a waiver “for humanitarian purposes, to assure family unity, or when it is in the
public’s interest” for all other grounds of inadmissibility, except if there is reason to believe the person is a
drug trafficker or inadmissible on security grounds (except membership Page 202 in a totalitarian party).
Waiver is submitted on Form I-602. IJ has original jurisdiction to adjudicate a §209(c) waiver for asylee
adjustment and need not wait for an initial denial by DHS. Matter of K-A-, 23 I&N Dec. 661 (BIA 2004)
[modifying Matter of H-N-,finding that the IJ possessed original jurisdiction of an AOS and waiver, that the IJ
had the authority to terminate asylee status due to an aggravated felony conviction before adjudication of
AOS, and that if respondent is an aggravated felon it is only in “those rare situations where (there are)
compelling countervailing equities” that AOS and waiver should be granted]; Matter of H-N-, 22 I&N Dec.
1039 (BIA 1999); 8 CFR §§209.2(c), 1209.2(c), 1240.11(a)(2). However, for refugee adjustment, DHS takes
the position that the adjustment application and the 209(c) waiver must first be filed and adjudicated by
USCIS, and then, if needed, renewed before the IJ. Compare 8 CFR §1209.1(a), (e) [refugee procedures for
AOS] with 8 CFR §1209.2(c) [asylum procedures for AOS]. See also Elfeky v. Johnson, 232 F.Supp.3d 695,
706-08 (E.D. Pa. 2017) [jurisdiction to review I-602 waiver denial but finding decision to deny broad waiver
for asylum was not arbitrary and capricious because agency followed I-602 guidelines and did not need to
address hardship criteria for 212(i) which was basis for inadmissibility].
A waiver for serious (violent or dangerous) crimes will almost never be granted absent extraordinary
circumstances such as those involving national security or foreign policy considerations or where denial
would result in exceptional and extremely unusual hardship. Matter of Jean, 23 I&N Dec. 373, 381–84 (AG
2002), aff’d, Jean v. Gonzales, 452 F.3d 392, 396–98 (5th Cir. 2006) [denying AOS to person convicted of
second degree manslaughter and reversing BIA where the focus was on the family’s hardship without
considering the nature of the criminal offense; on appeal, rejecting argument that AG’s standard was ultra
vires]; Torres-Valdivias v. Holder, 786 F.3d 1147 (9th Cir. 2015) [upholding and giving a broad reading to Jean
beyond 209(c) to an AOS under 245(i), and finding that the BIA need not apply a categorical approach in
determining whether Jean applies because it is a fact-driven discretionary decision]; Latter-Singh v. Holder,
668 F.3d 1156, 1164 (9th Cir. 2012) [BIA within its authority to apply a higher standard for a 209(c) waiver
when it involves a violent and dangerous crime]; Ali v. Achim, 468 F.3d 462, 465–67 (7th Cir. 2006) [AG did
not exceed his authority when he articulated the heightened waiver standard in Matter of Jean]. This “violent
crime” exception was codified in regard to 212(h) waivers. 8 CFR §212.7(d). The heightened evidentiary
showing of hardship does not apply to applicants who have sought relief from misconduct involving sexual
abuse of a minor. Matter of Silva-Trevino, 26 I&N Dec. 826, 836 (BIA 2016) [rejecting heightened standard for
CIMT for sexual abuse of a minor]. And despite the high standard, the applicant does not need to show that
the hardship is so severe “as to be considered unconscionable.” 9 USCIS-PM, Pt. A, Ch. 5 ¶C [citing Matter
of Monreal].
6. INA §212(d)(1)—[8 USC §1182(d)(1)] Waives inadmissibility under INA §212(a) (except Nazis) for S visas.
The AG may grant waiver in the national interest. The grant does not prevent deportation for acts arising after
admission or for information not disclosed before admission.
7. INA §212(d)(3)(A)—[8 USC §1182(d)(3)(A)] General waiver for NIVs
7.a. DHS follows 3 criteria established in Matter of Hranka, 16 I&N Dec. 491 (BIA 1978) to determine waiver:
(1) the risk of harm to society if applicant is admitted; (2) the seriousness of the applicant’s criminal or
immigration law violation; and (3) the applicant’s reason for seeking entry. See also 8 CFR §§212.4,
1212.4; 9 FAM 305.4-3; 75 FR 82242 (Dec. 30, 2010). Cannot obtain a waiver for political or security
grounds under INA §212(a)(3)(A)(i)(I) [espionage or sabotage], §212(a)(3)(A)(ii) [any unlawful activity],
§212(a)(3)(A)(iii) [overthrow the government by force], §212(a)(3)(C) [foreign policy grounds], and
§§212(a)(3)(E)(i) & (ii) [Nazi and genocide]. A K visa holder may also be ineligible for a INA §212(d)(3)
waiver if she is otherwise inadmissible and her inadmissibility is not waivable. If inadmissibility is waivable,
however (e.g., by a §212(h) waiver), a K visa applicant may obtain the INA §212(d)(3) waiver. 9 FAM
502.7-5(C)(6). Applicant needs the approval of DHS and recommendation of the consular officer. Waiver
request submitted on Form I-192 if submitted at port of entry. 8 CFR §§212.4(b), 1212.4(b). For a list of
designated ports of entry that accept I-192 applications, see AILA Doc. No. 11051064. For long-pending
cases inquire to attorneyinqury.waiver.aro@dhs.gov. If submitted at the consulate, neither an application
nor fee is required. 8 CFR §212.4(a)(1). Where person with waiver in U.S. desires to change status his or
her waiver may continue to be valid, but it is subject to DHS scrutiny for continuing validity. Letter,
Bednarz, Chief NIV Branch, Adjudications (HQ 212.42-C) (Mar. 17, 1994), AILA Doc. No. 94031791. Page
203 However, a waiver issued in connection with a visa application may only be approved for the type of
visa requested and a waiver issued in one NIV classification cannot be used to enter the U.S. in another
NIV classification. Minutes, AILA/U.S. CBP Office of Field Operations (Apr. 6, 2016), at Q4, AILA Doc. No.
16052700.
7.b. Waiver Procedures—The §212(d)(3)(A) waiver may be obtained through CBP at a port of entry, field
office, or admissibility review office, through USCIS or through a DOS consulate abroad. For a detailed
procedural outline to obtain this waiver see Waiver of Inadmissibility Practice Guide (Mar. 13, 2007), AILA
Doc. No. 07060774. There is a distinction between an INA §212(d)(3)(A)(i) waiver and an INA §212(d)(3)
(A)(ii) waiver. The former is applied for at a consular office and requires the concurrence of DHS. The
latter may be applied for before CBP at the border but does not require DOS approval. The (d)(3)(A)(ii)
waiver is for someone who already has a valid entry document (e.g., visa) but needs a waiver to enter.
The application is submitted on Form I-192. IFM at 17.5(d)(1)–(2); Memo, Williams, Ex. Assoc. Comm.
Field Operations, HQINS 70/ 12.2.1 (Sept. 30, 2002), AILA Doc. No. 02111340; 8 CFR §212.4(b). The
Secy. of DHS has delegated adjudication of certain waivers to CBP: (i) INA §212(d)(3)(A)(ii) waivers, (ii)
waivers requested from consular posts in Canada and (iii) “seat of government” recommendations made
by DOS to CBP. But current regulations require requests for §212(d)(3)(A) waivers from other consular
posts to go to ICE Offices in Rome, Bangkok and Mexico City. Memo, Ahern, Asst. Comm. Field
Operations, CBP “Interim Guidance: Jurisdiction and Authority for Waivers of Inadmissibility under Section
212(d)(3),” (Apr. 8, 2004), AILA Doc. No. 05040165. For a list of DHS Offices Abroad that address the
waivers, see http://www.uscis.gov/international. The Seventh Circuit has held that the IJ has independent
and concurrent jurisdiction to grant a waiver under INA §212(d)(3)(A)(ii) for a person seeking a U visa.
L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014); Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017)
[followed L.D.G. giving broad reading to delegation of AG’s powers to IJs under 8 CFR §1003.10(a), and
rejecting Matter of Khan]. But see 8 CFR §1003.10(b) limits the jurisdiction of immigration courts to the
“powers and duties delegated to them” by the Attorney General; Sunday v. U.S. Att’y Gen., 832 F.3d 211,
213-17 (3d Cir. 2016) [IJ has no authority to grant waiver to person already admitted into U.S. to cure
inadmissibility under U visa]; Matter of Khan, 26 I&N Dec. 797 (BIA 2016) [regulations do not give an IJ
authority to grant an INA §212(d)(3)(A)(ii) waiver to a petitioner seeking U status because a U applicant is
in the U.S. and the IJ’s authority is limited to a review of a denial at the port of entry; BIA applies decision
nationwide including 7th circuit under Brand X]; Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008) [IJ has
no authority to retroactively grant such a waiver]; Matter of Rodriguez-Esteban, 20 I&N Dec. 88 (BIA
2010) (same); Matter of Avetiysan, 25 I&N Dec. 688, 691 (BIA 2012) (“[i]n conducting proceedings, an
Immigration Judge exercises the powers and duties delegated by law and by the Attorney General of the
United States through regulation”).
7.c. Terrorism Waiver [INA §212(d)(3)(B), 8 USC §1182(d)(3)(B); 72 FR 9957 (Mar. 6, 2007); PL 110-161 at
Div. J, §691(a), 121 Stat. 1844, 2364–65 (Dec. 26, 2007)]—Under INA §212(d)(3)(B)(i), the Secy. of State
and the Secy. of DHS in consultation with each other and the AG can, in their “unreviewable discretion,”
issue waivers of the material support ground and most other terrorism grounds of inadmissibility as a
result of the broad powers for waiver accorded them under the Consolidated Appropriations Act, 2008, PL
110-161, Div. J §691(a), 121 Stat. 1844, 2364–65 (Dec. 26, 2007). For a more complete discussion of the
waiver and its exceptions, see in this part “Waiver Provision,” ¶ I.2.d(6)(c) (p.183), supra.
7.d. NIV Waiver in Removal Proceedings—A waiver may be granted for someone inadmissible at the border
in removal proceedings. Atunnise v. Mukasey, 523 F.3d 830, 838–39 (7th Cir. 2008) [inadmissible K-3
applicant found removable was eligible for a 212(d)(3)(A) waiver and the IJ erred in not advising her of the
right to apply under the “apparent eligibility” regulation]. A INA §212(d)(3)(A) waiver may also be granted
by an IJ in removal proceedings to waive inadmissibility for a “U” visa. L.D.G. v. Holder, 744 F.3d 1022
(7th Cir. 2014); Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017) [followed L.D.G. giving broad
reading to delegation of AG’s powers to IJs under 8 CFR §1003.10(a), and rejecting Matter of Khan]. But
see 8 CFR §1003.10(b) limits the jurisdiction of immigration courts to the “powers and duties delegated to
them” by the Attorney General; Sunday v. U.S. Att’y Gen., 832 F.3d 211, 213-17 (3d Cir. 2016) [IJ has no
authority to grant waiver to person already admitted into U.S. to cure inadmissibility Page 204 under U
visa]; Matter of Khan, 26 I&N Dec. 797 (BIA 2016) [regulations do not give an IJ authority to grant an INA
§212(d)(3)(A)(ii) waiver to a petitioner seeking U status because a U applicant is in the U.S. and the IJ’s
authority is limited to a review of a denial at the port of entry; BIA applies decision nationwide including 7th
circuit under Brand X]; Matter of Rodriguez-Esteban, 20 I&N Dec. 88 (BIA 2010) (same); Matter of
Avetiysan, 25 I&N Dec. 688, 691 (BIA 2012) (“[i]n conducting proceedings, an Immigration Judge
exercises the powers and duties delegated by law and by the Attorney General of the United States
through regulation”). Also an NIV waiver under INA §212(d)(3)(B) cannot be granted nunc pro tunc in
removal proceedings where applicant was erroneously granted admission. Matter of Fueyo, 20 I&N Dec.
84 (BIA 1989). Accord. Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008) [BIA’s interpretation in Fueyo is
reasonable in context of denying INA §212(d)(3)(A)(ii) waiver retroactively to cure inadmissibility after
admission].
8. INA §212(d)(4)—[8 USC §1182(d)(4)] Inadmissibility for nonimmigrant not in possession of a valid NIV, BCC,
or passport valid for 6 months or foreign government officials in TWOV may be waived if unforeseen
emergency, on the basis of reciprocity, or because there is a contract with the transportation line to permit
TWOVs. The waiver is filed on Form I-193. 8 CFR §212.1(g). Waiver can now be granted directly by the FOD
without DOS concurrence in cases of unforeseen emergencies. 8 CFR §212.1(g), 22 CFR §41.2(i). DHS
defines unforeseen emergencies narrowly to include an alien arriving only: (1) for a medical emergency; (2)
as an emergency or rescue worker in response to a catastrophe in the U.S.; (3) accompanying or following to
join a person with a medical emergency; (4) visiting a spouse, child, parent, or sibling who became critically ill
or died within the past 5 days; or (5) appearing without a passport or visa because they were lost or stolen
within 48 hours of departing the last port of embarkation to the U.S.IFM at 17.5(d)(3)(i)–(ii). If the unforeseen
emergency does not fall within one of these categories, a waiver can still be granted with the express
consent of the Field Officer Director, or the Assistant for CBP or USCIS and with an explanation as to why a
reasonable person in the applicant’s situation could not have anticipated the emergency. IFM at 17.5(d)(3)
(iii)–(iv). A waiver under this section may also be granted to a person whose visa is cancelled under INA
§222(g). IFM at 15.15(k); Memo, Williams, Ex. Assoc. Comm. Field Operations, HQINS 70/12.2.1 (Sept. 30,
2002), AILA Doc. No. 02111340. In all other cases the waiver must be done by AG and Secy. of State acting
jointly. An IJ can determine this waiver. Matter of Kazemi, 19 I&N Dec. 49 (BIA 1984), overruling Matter of Le
Floch, 13 I&N Dec. 251 (BIA 1969). The 1996 INS regulation and the 1999 DOS regulations regarding air
carrier liability were struck down. United Airlines, Inc. v. Brien, 588 F.3d 158, 177–80 (2d Cir. 2009) [the 1996
INS amendments to 8 CFR §212.1(g) and the 1999 DOS amendment to 22 CFR §41.2(j) placing liability on
an air carrier even if a waiver of inadmissibility is granted to the passenger were struck down because the
INS amendments violated the “joint-filing” requirements with DOS and the DOS amendment violated the
notice and comment provisions of the APA]. The DOS (22 CFR §41.2(i)) and DHS ( 8 CFR §212.1(g)) have
issued final rules jointly to allow them to fine a carrier even if they grant a waiver of visa and passport
requirements where there is an “unforeseen emergency,” thus reversing the Brien decision. 82 FR 41867,
41883 (Sept. 5, 2017). By publication DOS/DHS has waived visa and passport requirements for members of
foreign armed forces and coast guards where there were “arrangements made with the appropriate military
authorities of the United States.” 22 CFR §41.3(e).
9. INA §212(d)(11)—[8 USC §1182(d)(11)] The AG in his or her discretion for humanitarian purposes, to ensure
family unity, or when it is otherwise in the public interest, may grant a waiver of inadmissibility where the
person smuggled into the U.S. was the “spouse, parent, son or daughter” of the inadmissible person. INA
§212(d)(11), 8 USC §1182(d)(11). The waiver is available to LPRs who are returning from abroad and to
persons who are seeking admission as an IR or under INA §§203(a)(1)–(3). IIRIRA §351 amended the
statute to clarify that the applicant for the waiver had to have the family relationship at the time of the
smuggling, thus overriding Matter of Farias, 21 I&N Dec. 269 (BIA 1996) The requirement that an immediate
family member is involved is applicable to LPRs as well as others seeking admission. Matter of Compean, 21
I&N Dec. 51 (BIA 1995); Perez Suriel de Batista v. Gonzales, 494 F.3d 67 (2d Cir. 2007) [rejecting argument
that nephew who was functional equivalent of a son could be basis for waiver]; Selimi v. INS, 312 F.3d 854,
861–62 (7th Cir. 2002) [where LPR smuggled wife, children, and cousin, waiver was unavailable]. See also
Lopez De Jesus v. INS, 312 F.3d 155, 161–64 (5th Cir. 2002) [retroactive application of Page 205
amendment constitutional]. At least one court found it lacks jurisdiction under INA §242(a)(2)(B)(ii), 8 USC
§1252(a)(2)(B)(ii) to review the denial of the waiver on discretionary grounds. Saloum v. USCIS, 437 F.3d 238
(2d Cir. 2006). This waiver, in the view of one circuit, may not be applied to overcome a good moral character
bar under INA §101(f)(3) and petitioner is therefore ineligible for cancellation of removal. Sanchez v. Holder,
560 F.3d 1028 (9th Cir. 2009) (en banc) [overruling Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), 212(d)
(11) waiver may not be used to overcome a lack of good moral character bar to cancellation where petitioner
smuggled his wife into the U.S.].
10. INA §212(d)(12)—[8 USC §1182(d)(12)] Waiver of inadmissibility as a result of having a final INA §274C
order. See in this part, “Document Fraud,” ¶ E.8 (p.156), supra.
11. INA §212(d)(13)—[8 USC §1182(d)(13)] The waiver for T visa applicants permits the AG, if he or she
considers it to be in the national interest, to waive health related and public charge grounds and any other
ground of inadmissibility (except security and related grounds, international child abduction, and former
citizen who renounced citizenship to avoid taxation) if the activities rendering the person inadmissible were
caused by, or were incident to, a severe form of trafficking in persons. Waiver is filed on Form I-192.
12. INA §212(d)(14)—[8 USC §1182(d)(14)] 8 CFR §212.17. The waiver for U visa applicants is even broader
and provides that all grounds of inadmissibility except for INA §212(a)(3)(E) (Nazis, genocide, torture,
extrajudicial killings), are waivable by DHS if it is in the “public or national interest.” INA §212(d)(14). If the
applicant is inadmissible on criminal grounds, USCIS will consider the number and severity of the offenses. In
cases involving violent or dangerous crimes or inadmissibility based on security or related grounds under INA
§212(a)(3) USCIS will only exercise discretion in “extraordinary circumstances.” 8 CFR §212.17(b)(2). No
appeal from waiver denial. A U visa applicant, however, may independently or concurrently seek a INA
§212(d)(3)(A) waiver for any ground of inadmissibility permitted under that waiver and an IJ has concurrent
jurisdiction to grant such waiver, at least in the Seventh Circuit. L.D.G. v. Holder, 744 F.3d 1022 (7th Cir.
2014); Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017) [followed L.D.G. giving broad reading to
delegation of AG’s powers to IJs under 8 CFR §1003.10(a), and rejecting Matter of Khan]. But see Sunday v.
U.S. Att’y Gen., 832 F.3d 211, 213-17 (3d Cir. 2016) [IJ has no authority to grant waiver to person already
admitted into U.S. to cure inadmissibility under U visa]; Matter of Khan, 26 I&N Dec. 797 (BIA 2016)
[regulations do not give an IJ authority to grant an INA §212(d)(3)(A)(ii) waiver to a petitioner seeking U
status because a U applicant is in the U.S. and the IJ’s authority is limited to a review of a denial at the port of
entry; BIA applies decision nationwide including 7th circuit under Brand X].
13. INA §212(e)—[8 USC §1182(e)] Allows for exchange student J waiver where there is: (a) exceptional
hardship to USC or LPR spouse or child; (b) fear of persecution of applicant; (c) no objection from home
country (not applicable to foreign doctors practicing medicine); (d) an interested U.S. government agency
asserts/establishes that the admission is in the public interest; or (e) a foreign physician where a state
department of health requests it (maximum of 30 waivers per state). Waiver is filed on Form I-602. For a
discussion of the exchange visitor program, see Chapter 5, Section VI.F (p.1070), infra.
14. INA §212(g)—[8 USC §1182(g)] Provides for a waiver for a person who has a communicable disease of
public health significance, or who fails to obtain vaccinations, or who has a physical or mental disorder under
INA §212(a)(1)(A)(i), (ii), (iii). It does not waive drug abuse or drug addiction under INA §212(a)(1)(A)(iv). For
a detailed discussion of waivers of health-related grounds of inadmissibility, see in this part, Section A, ¶¶ 2.f
(p.83), 3.b (p.83), and 4.h (p.86), supra.
15. INA §212(h)—[8 USC §1182(h)] The statute allows waivers for (1) crimes of moral turpitude (except murder
and torture or an attempt or conspiracy to commit murder or torture); (2) commission of two or more crimes
with an aggregate sentence of 5 years; (3) prostitution; (4) diplomats who assert immunity; and (5) a single
offense of simple possession of 30 grams or less of marijuana. USCIS, Immigrant Waivers: Procedures for
Adjudication of Form I-601 For Overseas Adjudication Officers (Apr. 28, 2009), at 22–29, AILA Doc. No.
09061772 . Application is on Form I-601. There are two forms of the waiver: Page 206
15.a. 15-Year Statute of Limitations [INA §212(h)(1)(A)]—Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).
For all categories except prostitution, must establish to the satisfaction of the AG: (1) that the activities
occurred more than 15 years before the date of application for visa, admission or adjustment; (2) that the
admission would not be contrary to the national welfare, safety or security of the U.S.; (3) that the person
has been rehabilitated; and (4) that the applicant meets all other terms, conditions, and procedures as
established by regulation; and (5) merits a favorable exercise of discretion. Fifteen year period continues
to run while case on appeal at AAO. Matter of ___(West Palm Beach) (AAO Apr. 26, 2013), AILA Doc. No.
13043050 [15 years counted back from the date of decision on the waiver and not date of filing]; Matter of
___, 2008 WL 3990281 (AAO Mar. 3, 2008). Rehabilitation may occur despite extensive criminal record.
Matter of ___, London (AAO Aug. 28, 2012), AILA Doc. No. 12100270[where CIMT was more than 15
years old and applicant had extensive criminal record, he was able to demonstrate rehabilitation despite
conviction for malicious damage after the CIMT where he had only traffic violations for two decades].
15.b. Extreme Hardship Waiver [INA §212(h)(1)(B)]—Alternatively, a person may obtain waiver if she is the
spouse, parent, son or daughter of a USC/LPR who would suffer extreme hardship if the person is
deported. For a general discussion of extreme hardship, see Chapter 8, Part III (p.1633), infra.
(1) Extreme hardship has historically been interpreted narrowly by the BIA. Matter of Ngai, 19 I&N Dec.
245 (Comm. 1984); Shooshtary v. INS, 39 F.3d 1049 (9th Cir. 1994); Palmer v. INS, 4 F.3d 482 (7th Cir.
1993), but more recently USCIS’s policy manual takes a more generous approach. See 9 USCIS-PM,
Pt. B and Chapter 8, Section III.C (p.1633), infra. For a discussion of the factors in any extreme
hardship analysis, see in this section Extreme Hardship Factors [under INA §212(i)], ¶ 16.b (p.212),
infra. Even if a person demonstrates extreme hardship, the grant of a hardship waiver is a
discretionary act that requires balancing favorable and unfavorable factors embracing the standards
used for former INA §212(c) under Matter of Marin. Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA
1996) [establishment of extreme hardship and eligibility for waiver still requires a separate
discretionary determination]; Reyes-Cornejo v. Holder, 734 F.3d 636, 645-49 (7th Cir. 2013) [the grant
of a 212(h) waiver requires both a finding of extreme hardship and the favorable exercise of
discretion]. The applicant has the burden of proof but only to show extreme hardship is “probably true
(the preponderance of the evidence standard)” and the “officer does not need to be absolutely 100%
certain.” USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 157, AILA Doc. No. 15082741a. The
standard of review requires the BIA to consider all factors and is analogous to the extreme hardship
review under former INA §244. Hassan v. INS, 927 F.2d 465 (9th Cir. 1991). The hardship “does not
need to be unique or unusual.” USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 240, AILA Doc. No.
15082741a. One court has found it permissible for the IJ to consider applicant’s involvement in a crime
despite the fact that the charges were dismissed. Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005)
[IJ’s consideration of a dismissed criminal case did not violate respondent’s constitutional rights
against double jeopardy or by requiring him to prove his innocence]. USCIS, Immigrant Waivers:
Procedures for Adjudication of Form I601 for Overseas Adjudication Officers (Apr. 28, 2009), at 50–52,
AILA Doc. No. 09061772 [citing to factors in Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA
1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001) and to discretionary factors].
See also U.S. v. Aguilar, 133 F.Supp.3d 468 (E.D.N.Y. 2015) (Weinstein, J.) [in sentencing context,
excellent discussion of family separation, especially effect on children of parent’s deportation]. The
grant of TPS may be a factor in determining extreme hardship. Matter of ___, 2008 WL 3990437 (AAO
Mar. 11, 2008) [where TPS granted to nationals of El Salvador, USC husband would experience
extreme hardship if accompanies wife]. In determining extreme hardship, the IJ/BIA may consider all
relevant evidence and may not admit prejudicial improper hearsay evidence to impeach applicant. Lam
v. Holder, 698 F.3d 529 (7th Cir. 2013) [reversed denial of extreme hardship where IJ/BIA failed to
consider evidence of the USC wife’s medical/psychological hardship and introduced prejudicial parts of
a conviction record which it improperly used for impeachment]. The AAO may reconsider a denial of
the waiver. Matter of Roy, (AAO, Bangkok Aug. 6, 2013), AILA Doc. No. 13082656 [evidence
reconsidered and Page 207 waiver granted in hardship to parent]; Matter of ___ (AAO, New Delhi,
Aug. 2, 2013), AILA Doc. No. 13081306 [same].
(2) USCIS More Family-Oriented Interpretation—USCIS has adopted a more generous family-oriented
interpretation of extreme hardship. 9 USCIS-PM, Pt. B, Ch. 4 ¶B; See in this part ¶ E.2.k(1) (p.145),
supra.
(3) Extraordinary Circumstances for Violent or Dangerous Crimes—Notwithstanding the “extreme

hardship” statutory standard, DHS regulations have been promulgated, pursuant to INA §212(h)(2),
that on “discretionary grounds” permits the denial of a 212(h) waiver in cases involving violent or
dangerous crimes unless there are “extraordinary circumstances.” Extraordinary circumstances include
“national security or foreign policy considerations” or where an applicant demonstrates “exceptional
and extremely unusual hardship.” The regulation notes that even a showing of extraordinary
circumstances may be insufficient to warrant a favorable exercise of discretion. 8 CFR §212.7(d), 8
CFR §1212.7(d). Accord Cisneros v. Lynch, 834 F.3d 857, 862-62 (7th Cir. 2016) [regulation valid
under Chevron, was not applied improperly in this case, and categorical approach was not required];
Samuels v. Chertoff, 550 F.3d 252 (2d Cir. 2008) [upholding 8 CFR §1212.7(d) despite ultra vires and
retroactivity challenges]; Perez Pimentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008) [upholding validity of
§212.7(d) under Chevron deference and applying it retroactively]; Mejia v. Gonzales, 499 F.3d 991,
995–98 (9th Cir. 2007) [same as Perez Pimentel]; Matter of Jean, 23 I&N Dec. 373, 383 (AG 2002).
See also Torres-Valdivias v. Holder, 786 F.3d 1147 (9th Cir. 2015) [upholding and giving a broad
reading to Jean beyond 209(c), and finding that the BIA need not apply a categorical approach in
determining whether Jean applies to an AOS because it is a fact-driven discretionary decision].
However, despite the high standard, the applicant does not need to show that the hardship is so
severe “as to be considered unconscionable.” 9 USCIS-PM, Pt. A, Ch. 5 ¶C [citing Matter of Monreal].
Whether a conviction would be a violent or dangerous crime triggering the heightened standard is a
reviewable legal question. Waldron v. Holder, 688 F.3d 354, 358-60 (8th Cir. 2012) [conviction under
Mo. Rev. Stat. §565.060 for second degree assault fell within the violent or dangerous crime
exception]. The AG’s standard under the regulation is also being applied to the adjudication of AOS
applications. Memo, Yates, Acting Director of Operations, HQADN 70/23 (May 27, 2003), AILA Doc.
No. 03080717. Because the hardship standard is different and separate from “extreme hardship,” at
least one circuit has determined that the hardship to the alien may also be considered when
determining the exceptional and extremely unusual hardship under the extraordinary circumstances
standard. Rivera-Peraza v. Holder, 684 F.3d 906 (9th Cir. 2012).
15.c. VAWA Self-Petitioners—A VAWA self-petitioner is covered but does not need a qualifying relative.
Matter of ___, 2008 WL 4051921 (AAO May 13, 2008). INA §212(h)(1)(C).
15.d. Good Moral Character—At least one court has held that a person cannot use the waiver to cure
statutory ineligibility for good moral character under INA §101(f). Miller v. INS, 762 F.2d 21 (3d Cir. 1985).
15.e. Apparent Eligibility—Under the apparent eligibility standard, the IJ should inform a respondent if he is
eligible for INA §212(h) relief. 8 CFR §1240.11(a)(2); U.S. v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) [IJ’s
failure to advise of apparent eligibility for INA §212(h) resulted in reversal of guilty plea for re-entering].
The IJ also has the responsibility to develop the evidence, but such responsibility is not unlimited. Reyes-
Cornejo v. Holder, 734 F.3d 636, 645-47 (7th Cir. 2013) [finding IJ did comply with her statutory and
regulatory responsibilities under 8 USC §1229a(b)(1) and 8 CFR §1240.32(b) to advise the applicant
regarding extreme hardship and to develop the evidence of it].
15.f. Application to Marijuana Convictions—The waiver as it applies to marijuana convictions may be limited.
Matter of Moncada-Servellon, 24 I&N Dec. 62, 65 & n.4 (BIA 2007) [narrowly interpreting deportability
exception for simple possession of less than 30 grams as not including possession of less than 30 grams
in prison]; Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007) [where conviction was enhanced by
virtue of respondent’s possession of marijuana in a “drug-free zone” the enhancement was an element of
the crime and the conviction was therefore more than a conviction for simple possession of 30 grams of
marijuana; respondent ineligible Page 208 for INA §212(h) relief and Matter of Rodriguez-Cortes, 20 I&N
Dec. 587 (BIA 1992) was superseded for post-Apprendi cases]. But see Esquivel v. Lynch, 803 F.3d 699
(5th Cir. 2015) [BIA requirement that the crime be of the least serious marijuana possession offense was
arbitrary and capricious and the court overruled Matter of Moncada-Servellon, supra].The waiver is only
available one time to waive a crime.Rana v. Holder, 654 F.3d 547 (5th Cir. 2011) [waiver only available
one time to waive one simple possession crime]. Any credible evidence may be used to prove less than
30 grams. Matter of Grijalva, 19 I&N Dec. 713 (BIA 1988). The waiver may also be used to waive a drug
paraphernalia charge. Matter of Martinez Espinoza, 25 I&N Dec. 118, 120–22 (BIA 2009) [if an INA
§212(h) waiver is available to a person convicted of drug paraphernalia, the IJ should use a
“circumstance-specific” approach and the applicant must demonstrate his eligibility by a preponderance of
the evidence]; Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008) [§212(h) waiver may apply to
drug paraphernalia where the amount involved was 30 grams or less of marijuana]. But see e.g., U.S. v.
Oseguera-Madrigal, 700 F.3d 1196, 1198-99 (9th Cir. 2012) [INA §212(h) was unavailable for conviction of
drug paraphernalia crime under Wash. Rev. Code §69.50.412(1) because it was cocaine related
possession]. For additional case authority, see in this part ¶¶ C.2.a & 2.b (p.127), supra.
15.g. Waiver Unavailable for Certain Aliens—By statute, the waiver is unavailable for any alien who has
been convicted of (or admits committing acts constituting) murder, criminal acts involving torture, or an
attempt or conspiracy to commit murder or criminal acts involving torture.
15.h. Not Available to Certain LPRs—By statute, the waiver is unavailable if the applicant “has previously
been admitted” to the U.S. as an LPR and “since the date of admission” has “been convicted of an
aggravated felony” or “has not lawfully resided continuously” in the U.S. for 7 years “immediately
preceding the date of initiation of proceedings.” This provision, however only bar persons from the waiver
who were “admitted” (that is, made an “entry”) as LPRs and therefore, may not apply to bar LPRs who
gained residency through AOS. Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) [in light of 9 circuit courts
holding that AOS is not an entry/admission barring INA §212(h) relief for person who committed an
aggravated felony, the BIA withdrew its contrary decisions in Matter of E.W. Rodriguez and Matter of
Koljenovic and declined to follow the 8th Circuit decision in Roberts v. Holder]; Husic v. Holder, 776 F.3d
59 (2d Cir. 2015) [pre–Matter of J-H-J- joining other circuits and finding that AOS is not an entry/admission
under clear language of INA §212(h) and therefore no Chevron deference]. See also De Leon v. Lynch,
808 F.3d 1224, 1232-34 (10th Cir. 2015) [post-JHJ]; Medina-Rosales v. Holder, 778 F.3d 1140, 1143-46
(10th Cir. 2015); Stanovsek v. Holder, 768 F.3d 515 (6th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d
1047 (9th Cir. 2014); Papazoglou v. Holder, 725 F.3d 790, 793-94 (7th Cir. 2013); Leiba v. Holder, 699
F.3d 349 (4th Cir. 2012); Hanif v. U.S. Att’y Gen., 694 F.3d 479, 483-87 (3d Cir. 2013); Bracamontes v.
Holder, 675 F.3d 380 (4th Cir. 2012); Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1367 and n.3 (11th Cir.
2011); Martinez v. Mukasey, 519 F.3d 532, 542–45 (5th Cir. 2008). But see Matter of Chavez-Alvarez, 26
I&N Dec. 274 (BIA 2014), rev’d on other grounds, Chavez-Alvarez v. U.S. Att’y Gen., 783 F.3d 478 (3d Cir.
2015) [AOS is admission for purposes of determining inadmissibility and removability so the person is
ineligible for a 212(h) waiver because he is not an inadmissible person requesting a stand-alone waiver
nor a person in conjunction with a new AOS; Matter of Rivas reaffirmed; Hanif distinguished]; Roberts v.
Holder, 745 F.3d 928, 931–34 (8th Cir. 2014) [disagreeing with the 4 circuits having decided the issue and
finding that under Step 2 of Chevron it must defer to the BIA’s interpretation as decided in Matter of
Rodriguez that for 212(h) purposes admission includes AOS]; Spacek v. Holder, 688 F.3d 536, 539-40
(8th Cir. 2012) [declining to reach issue of AOS in Bracamontes and other cases because respondent
adjusted under the Refugee Act, 8 USC §1159(a)(1) which requires by its language an “admission”]. See
also Matter of Vella, 27 I&N Dec. 138 (BIA 2017) [although a person who initially obtained LPR status
through an AOS may apply for a 212(h) waiver, the court held that a subsequent adjustment of status after
a previous admission on an immigrant visa bars 212(h)].
(1) “Previously Admitted”—An LPR must have been “previously … admitted” and have “lawfully resided
continuously” for 7 years “immediately preceding the date of initiation of proceedings” to be eligible for
the waiver. Previous admission includes admission even if obtained unlawfully or through
misrepresentation. Matter of Ayala, 22 I&N Dec. 398 (BIA 1998) [LPR is previously admitted under
statute even if he made an unlawful admission Page 209 through misrepresentation or unlawfully
obtained LPR status]; Martinez v. U.S. Att’y Gen., 693 F.3d 408 (3d Cir. 2012) [followed Ayala and
finding 212(h) waiver unavailable]; Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010) [previously
been admitted refers to a procedurally regular admission and not a substantively lawful admission];
Onwumaegbu v. Gonzales, 470 F.3d 405, 408–09 (1st Cir. 2006) [applying Ayala where respondent
made a fraudulent misrepresentation in obtaining LPR status and vacating IJ order where IJ failed to
articulate why the respondent had not lawfully resided in U.S. for 7 years]. A person who is EWI and
obtains AOS has been previously admitted and must satisfy the 7-year requirement. But see in this
chapter Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) in “Admission and AOS,” Section I.J (p.76),
supra. “Previously” admitted, in the view of one circuit, does not mean the last admission but at any
time previous to the application. Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) [court rejected
respondent’s argument that he was eligible for 212(h) waiver notwithstanding aggravated felony
conviction because his last “admission” was unlawful and not as an LPR]; Matter of Vella, 27 I&N Dec.
138 (BIA 2017) [following Dobrova and holding that a subsequent adjustment of status after a previous
admission on an immigrant visa bars 212(h)].
(2) “Initiation of Proceeding”—Begins with the filing of the NTA with the immigration court. 8 CFR
§1239.1; 8 CFR §239.1.
(3) Lawfully Resided Continuously—The BIA has defined “lawfully resided continuously” narrowly. Matter
of Rotimi, 24 I&N Dec. 567 (BIA 2008), aff’d, 577 F.3d 133 (2d Cir. 2009) [applicant for asylum or for
AOS who lacks any other basis for claiming lawful residence is not lawfully residing]. Accord.
Cervantes v. Holder, 772 F.3d 583, 590-92 (9th Cir. 2014) [deferred to BIA’s interpretation in Matter of
Rotimi under Chevron and held AOS time does not count toward 7 years]; Vila v. U.S. Att’y Gen., 598
F.3d 1255 (11th Cir. 2010) [holding that person with approved I-140 and AOS pending was not lawfully
residing continuously]; Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258–59 (11th Cir. 2008) [following
Rotimi under Chevron deference]. Prior to Rotimi the Ninth Circuit held that a person wrongfully denied
family unity benefits was lawfully residing in the U.S. for purposes of the waiver. Yepez-Razo v.
Gonzales, 445 F.3d 1216 (9th Cir. 2006).
(4) Equal Protection Challenges Rejected—The courts have rejected equal protection challenges to
these bars to LPR eligibility for the waiver. An Na Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012)
[rational basis for applying 7-year residency requirement and fact that person committed a CIMT rather
than an aggravated felony is not relevant]; Malagon De Fuentes v. Gonzales, 462 F.3d 498, 506–08
(5th Cir. 2006) [LPR who was ineligible for waiver because she returned from Mexico prior to reaching
7 years does not have an equal protection claim because she is not being treated differently than other
LPRs who are out of the U.S. when they reach the 7-year period; she simply doesn’t qualify];
Camacho-Salinas v. U.S. Att’y Gen., 460F.3d 1343, 1347–49 (11th Cir. 2006) [equal protection is not
violated under rational basis test where an undocumented alien is not required to have 7 years
residence to qualify for a INA §212(h) waiver but an LPR is so required]; Latu v. Ashcroft, 375 F.3d
1012, 1019–21 (10th Cir. 2004) [§212(h) prohibition against granting LPRs the waiver if they are
aggravated felons but allowing non-LPRs to apply has a rational basis that survives an equal
protection challenge]; Taniguchi v. Schultz, 303 F.3d 950, 957–58 (9th Cir. 2002) [denying INA §212(h)
waivers to aggravated felon LPRs but not to others does not violate equal protection]; De Leon-
Reynoso v. Ashcroft, 293 F.3d 633, 637–40 (3d Cir. 2002) [rejecting equal protection challenge where
LPR had not accrued 7 years, whereas non-LPRs were free to apply]; Jankowski-Burczyk v. INS, 291
F.3d 172 (2d Cir. 2002) [rejecting equal protection challenge regarding bar to 212(h) waiver if LPR (but
not nonresidents) convicted of aggravated felony]; Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002)
[same]; Moore v. Ashcroft, 251 F.3d 919, 923–25 (11th Cir. 2001) [same]; Lara-Ruiz v. INS, 241 F.3d
934, 946–48 (7th Cir. 2001) [same]; Matter of Yeung, 21 I&N Dec. 610 (BIA 1996); but see Roman v.
Ashcroft, 181 F.Supp.2d 808 (N.D. Ohio 2002) [distinction allowing §212(h) relief for nonresidents who
are aggravated felons but not allowing the same relief to LPRs fails the rational basis test]. Page 210
(5) Retroactive Application of Aggravated Felony Bar Allowed—Courts have also rejected retroactivity
challenges to the aggravated felony bar. An Na Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012) [quoting
the effective date language in IIRIRA §348 the court held that the seven-year cut off provision applied
to person who was placed in removal after the effect date even if conviction predated section]; U.S. v.
Gonzalez, 429 F.3d 1252 (9th Cir. 2005) [the bar to INA §212(h) relief under 8 USC §1228(b)(5), which
barred all discretionary relief for a person subject to expedited removal who was a non-LPR
aggravated felon, could be retroactively applied]; Guaylupo-Moya v. Gonzales, 423 F.3d 121, 128–32
(2d Cir. 2005) [under step one of the Landgraf analysis Congress clearly intended that IIRIRA §321(a)
regarding the retroactive definition of aggravated felonies and IIRIRA §§348(a) & (b) regarding the
elimination of §212(h) for aggravated felons apply retroactively]; Alvarez-Barajas v. Gonzales, 418 F.3d
1050, 1054–55 (9th Cir. 2005) [IIRIRA §348(b) made the bar to §212(h) relief for LPR/aggravated
felons retroactive and IIRIRA §321 made respondent’s plea to receipt of stolen property an aggravated
felony retroactively]. One court has also rejected a retroactivity challenge to the AG’s regulation under
8 CFR §212.7(d) restricting the waiver for violent or dangerous crimes. Mejia v. Gonzales, 499 F.3d
991, 997–98 (9th Cir. 2007) [upholding validity of §212.7(d) under Chevron deference and applying it
retroactively]. In the face of the retroactive bar, one court has also upheld the denial of a nunc pro tunc
grant. Gutierrez-Castillo v. Holder, 568 F.3d 256 (1st Cir. 2009) [cannot use nunc pro tunc relief to
circumvent congressional policy mandating retroactive bar of INA §212(h) relief to person with
aggravated felony conviction]. One court has also extended the bar for aggravated felons to temporary
legal residents. Bonhometre v. Gonzales, 414 F.3d 442, 449 (3d Cir. 2005) [no due process violation
for failure to inform temporary resident of INA §212(h) because his aggravated felony barred him from
relief].
15.i. Not Available to Conditional Resident—The §212(h) waiver may not be available to a person who has
previously been admitted to the U.S. as an LPR on a conditional basis. Conditional residents may be
subject to the bar. Matter of Paek, 26 I&N Dec. 403 (BIA 2014), aff’d, Paek v. U.S. Att’y Gen., 793 F.3d
330 (3d Cir. 2015) [detailing statutory and regulatory reasons demonstrating that a CR is an LPR upon
admission to demonstrate a CR’s ineligibility for §212(h) relief in light of aggravated felony conviction];
Eleri v. Sessions, 852 F.3d 879 (9th Cir. 2017) [following Paek in regard to someone who entered from
abroad as a CR; the case did not address whether 212(h) is available to someone who obtained CR
status in the U.S.]; 9 FAM 302.3-2(D)(1)(d)(5) [waiver if granted to a CR is automatically terminated if CR
status is terminated].
15.j. Application to Exclusion, Deportation, and Reopened Proceedings
(1) Generally—The bars to §212(h) apply to anyone in exclusion or deportation proceedings on or after
Sept. 30, 1996. Matter of Yeung, 21 I&N Dec. 610 (BIA 1996). The restrictions also apply to someone
who seeks to reopen proceedings after Sept. 30, 1996. Matter of Pineda, 21 I&N Dec. 1017 (BIA
1997). The bar does not apply to persons with aggravated felony convictions who seek the waiver in
conjunction with an AOS application and who were never LPRs. Matter of Michel, 21 I&N Dec. 1101
(BIA 1998) [non-LPR allowed to AOS in removal proceeding notwithstanding aggravated felony
conviction]. In addition, an AOS application is not even necessary in a removal case based upon
inadmissibility where the person otherwise qualifies for 212(h). Matter of Abosi, 24 I&N Dec. 204
(2007) [a returning LPR who is treated as an arriving alien is subject to inadmissibility and may simply
file a §212(h) waiver without AOS].
(2) Stand-Alone §212(h) Waiver Unavailable for Deportation Ground—In a removal case based on
deportation grounds, a “stand-alone” INA §212(h) waiver may not be filed and a respondent may only
file a 212(h) waiver in conjunction with AOS. Matter of Chavez-Alvarez, 26 I&N Dec. 274, 282-83 (BIA
2014), rev’d on other grounds, Chavez-Alvarez v. U.S. Att’y Gen., 783 F.3d 478 (3d Cir. 2015)
[aggravated felon is ineligible for a §212(h) waiver because he is not an inadmissible person seeking a
stand-alone waiver nor a waiver in conjunction with a new AOS]; Matter of Rivas, 26 I&N Dec. 130
(BIA 2013) aff’d, Rivas v. U.S. Att’y Gen., 765 F.3d 1324 (11th Cir. 2014) [ending “stand-alone” §212(h)
waivers; overruling Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), and rejecting nunc pro tunc
waivers as disfavored in this context]; Matter of Tima, 26 I&N Dec. 839, 845 (BIA 2016) Page 211
[followed Rivas where not an arriving alien and no concurrent AOS filing]; Mtoched v. Lynch, 786 F.3d
1210, 1217-18 (9th Cir. 2015) [INA §212(h) waiver only available as part of AOS application for person
who was already admitted]; Palma-Martinez v. Lynch, 785 F.3d 1147 (7th Cir. 2015) [person in removal
as deportable is not eligible for a stand-alone nunc pro tunc INA §212(h) waiver]; Poveda v. U.S. Att’y
Gen., 692 F.3d 1168 (11th Cir. 2012) [limiting former decisions in Yeung and Lanier, rejecting stand-
alone §212(h) waivers in removal, and permitting 212(h) waivers only for persons seeking admission
or persons in a removal proceeding in conjunction with AOS]; Cabral v. Holder, 632 F.3d 886, 890-94
(5th Cir. 2011) [equal protection not violated where petitioner may only file §212(h) waiver in
conjunction with an AOS application]; Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007)
[equal protection is not violated under a facially legitimate and bona fide standard by denying 212(h)
waiver to defeat deportation while permitting it to challenge inadmissibility; Yeung rejected]. But see
Lawal v. U.S. Att’y Gen., 710 F.3d 1288 (11th Cir. 2013) [remanding to BIA to determine whether
permitting applicants to file nunc pro tunc INA §212(h) waivers without an AOS application under
Matter of Sanchez is still good law in light of Poveda v. U.S. Att’y Gen. and Judulang].
15.k. Not Available to Cure a Conviction that Bars Non-LPR or Special Rule Cancellation—The BIA has
determined that a 212(h) waiver may not be used to overcome a conviction of an offense under INA
§212(a)(2) that precludes cancellation of removal under INA §240A(b)(1)(C). Matter of Bustamante, 25
I&N Dec. 564 (BIA 2011) [a §212(h) waiver bars only inadmissibility and not the fact of a conviction and it
therefore may not overcome the conviction bar to cancellation for non-LPRs]; Matter of Y-N-P-, 26 I&N
Dec. 10 (BIA 2012) [extended Bustamante to Special Rule Cancellation for battered spouses]; Arevalo v.
U.S. Att’y Gen., 872 F.3d 1184 (11th Cir. 2017) [upheld Matter of Y-N-P- under Chevron thus barring the
use of §212(h) to cure inadmissibility for Special Rule Cancellation]; Garcia-Mendez v. Lynch, 788 F.3d
1058 (9th Cir. 2015) [same under Chevron second step].
15.l. Waiver Permanent—If a wavier is granted in connection with LPR status, it “permanently waives the
ground of inadmissibility for purposes of any future immigration benefit, including immigrant and
nonimmigrant benefits” and even remains if the LPR abandons or otherwise loses LPR status. 9 USCIS-
PM, Pt. A, Ch. 6 ¶B.4. But the permanency of the waiver is not available to conditional residents and K
visa applicants. Id.
15.m. Judicial Review—Congress has sought to restrict judicial review of IJ decisions regarding waivers.
INA §242(a)(2)(B)(i), 8 USC §1252(a)(2)(B)(i). See, generally, Chapter 10, “Federal Judicial Review”
(p.1789 et seq.), infra; Compare Lam v. Holder, 698 F.3d 529 (7th Cir. 2013) [misreading own precedent,
overlooking evidence, and admitting hearsay evidence improperly when determining “extreme hardship”
are legal questions that may be addressed in reversing BIA decision] and Schroeck v. Gonzales, 429 F.3d
947, 950–51 (10th Cir. 2005) [notwithstanding preclusion of review of §212(h) petitions under INA §242(a)
(2)(B)(i), INA §242(a)(2)(D) permits jurisdiction to review respondent’s constitutional claim that the IJ
should not have heard and considered evidence regarding a dismissed criminal case] withPapazoglou v.
Holder, 725 F.3d 790, 793-95 (7th Cir. 2013) [despite determining that BIA erred in finding that 212(h) was
legally unavailable, the Court found it lacked jurisdiction to review the BIA’s alternative discretionary
denial]; Munis v. Holder, 720 F.3d 1293 (10th Cir. 2013) [the hardship determination under 212(h) is an
unreviewable discretionary decision]; Bygayong v. INS, 442 F.3d 67 (2d Cir. 2006) [INA §242(a)(2)(D)
does not overcome the discretionary decision bar under §242(a)(2)(B)(i) for a §212(h) waiver, even if
there was a finding of extreme hardship, because the ultimate decision to grant the waiver is
discretionary].
15.n. Waiver Filed on Form I-601—[See in this part ¶ K.1 (p.214), infra]
16. INA §212(i)—[8 USC §1182(i)] Waiver for violation of INA §212(a)(6)(C)(i), 8 USC §1182(a)(6)(C)(i) for
fraud or material misrepresentation, but only if the person is the spouse, son, or daughter of a USC/LPR who
would suffer extreme hardship. 8 USCIS-PM, Pt. G. Waiver is filed on Form I-601. For a general discussion of
extreme hardship, see 9 USCIS-PM, Pt. B and Chapter 8, Part III (p.1633), infra. Page 212
16.a. Availability—USC/LPR children are no longer qualifying relatives and the provision allowing a waiver if
the fraud occurred more than 10 years ago has been removed. Circuit courts have determined that
applying the changes in §212(i) to pending cases is not a retroactive application of the statute. Patel v.
Gonzales, 432 F.3d 685, 689–92 (6th Cir. 2005); Okpa v. INS, 266 F.3d 313, 318–19 (4th Cir. 2001);
Cervantes-Gonzales v. INS, 244 F.3d 1001, 1005–06 (9th Cir. 2001). But an IJ may have authority to grant
a nunc pro tunc waiver under the prior (1993) version of INA §212(i) to waive fraud that occurred at that
time. Patel v. Gonzales, 432 F.3d 685, 692–95 (6th Cir. 2005) [reversing IJ’s determination that she did
not have authority to grant nunc pro tunc waiver but finding that on the facts of the case respondent was
not eligible]. The waiver is also available to an approved VAWA self-petitioner if she demonstrates
extreme hardship to herself or her USC/LPR parent or child. See e.g., Matter of ___ (Chicago, Ill) (AAO
Oct. 12, 2011) [granting waiver to VAWA petitioner upon showing of hardship to him and children]
16.b. Extreme Hardship Factors—Include: (1) the presence of LPR/USC family ties in the U.S.; (2) the
qualifying relative’s family ties outside the U.S.; (3) country conditions in the country of relocation and the
qualifying relative’s ties to that country; (4) the financial impact of departure; (5) significant health
conditions, particularly when tied to unavailability of suitable medical care in the country of relocation.
Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 566 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244
F.3d 1001, 1005–06 (9th Cir. 2001) [applying extreme hardship and other requirements retroactively].
Other factors that may be considered are: economic disadvantage, loss of current employment, inability to
maintain one’s present standard of living, inability to pursue a chosen profession, separation from family
members, severing community ties, cultural readjustment after living in the U.S. for many years, cultural
adjustment of qualifying relatives who have never lived outside the United States, inferior economic and
education opportunities in the foreign country, or inferior medical facilities in the foreign country. Matter of
___, Hartford Field Office (AAO Feb. 28, 2014), AILA Doc. No. 14030449 [reversing denial and citing
Cervantes, Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA
1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm. 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA
1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968)]. The extreme hardship standards are
the same as those applied in former suspension cases. Matter of Kao & Lin, 23 I&N Dec. 45, 49 n.3 (BIA
2001) [citing uprooting children who are accustomed to U.S. life]. Other factors that may be considered
include the impact of separation; the economic and other conditions in the country to which she has to
accompany her relative; the financial, emotional, cultural, and political conditions in that country; her ability
to raise children and other quality of life factors in that country; as well as her age, length of residence in
this country, health, technical skills, employability, and other factors. Matter of Cervantes, supra. at 583
(Rosenberg concurring). The applicant for the waiver must prove extreme hardship if the qualifying
relative stays in the U.S. and the applicant departs orif the qualifying relative had to accompany the
applicant back to the home country. 9 USCIS-PM, Pt. B, Ch. 4 ¶B. This means that an applicant no longer
needs to argue both prongs but may argue one prong or the other, although as a practical matter, it is still
helpful to argue both. The IJ may also consider whether the USC/LPR married the applicant after removal
proceedings began. Cervantes, supra. at 567. One of the central purposes of the waiver is to provide for
the unification of families, Matter of Lopez-Monzon, 17 I&N Dec. 280 (Comm. 1979), and failure to weigh
all family factors if reviewable is reversible. Delmundo v. INS, 43 F.3d 436, 442–43 (9th Cir. 1994).
Extreme hardship may be established even if the family member does not live in the same city. Matter of
Chang, A70 010 615 (Mar. 4, 2009), reprinted in 86 No. 11 Interpreter Releases 774-79 (Mar. 16, 2009)
[son seeking waiver did not live in same city as father suffering hardship but visited frequently if father
needed assistance]. The hardship to the applicant’s children affecting the applicant USC spouse’s
hardship is a significant factor. Matter of ___(AAO New York Aug. 16, 2013) at 5, AILA Doc. No.
13090348 [noting extreme hardship to children accustomed to living in U.S. that “by extension” is hardship
to the applicant’s spouse]; Matter of ___(AAO Portland, Oregon (Oct. 7, 2010), AILA Doc. No.
11010333[granting 212(i) waiver primarily based upon hardship to spouse due to children’s health and
other problems]; U.S. v. Aguilar, 133 F.Supp.3d 468 (E.D.N.Y. 2015) (Weinstein, J.) [in sentencing context,
excellent discussion of family separation, especially effect on children of parent’s deportation]. So too is
the hardship to the applicant’s stepchild to the extent it affects the Page 213 USC. Matter of ___(AAO
Santo Domingo Sept. 9, 2011), AILA Doc. No. 11100433 [USC’s child with Sotos syndrome]. And the
hardship to the applicant to the extent it affects the USC. Matter of P-Y-K-, ID#639671 (AAO Oct. 31,
2017) [applicant had cancer which had effect on USC husband]. The agency must look at the totality of
the circumstances and psychological factors play an important role. Matter of L-C-, ID# 553828 (AAO Nov.
2, 2017) [USC husband had asthma exacerbated by going to China given pollution and applicant earns
about 1/2 of household income]; Matter of ___(AAO Yakima, WA. Sept. 6, 2013), AILA Doc. No. 13101163
[USC’s emotional difficulties caused by abusive childhood and difficult marriage are beyond those
normally experienced]; Matter of ___(AAO Atlanta, Ga. Sept. 6, 2013) [separation hardship to LPR father
who lives with applicant along with applicant’s USC spouse and children and who left China 24 years ago
as asylee], AILA Doc. No. 13100243; Matter of ___(AAO Moscow, Apr. 24, 2013), AILA Doc. No.
13082657 [separation hardship considered paramount and I-212 waiver also granted for expedited
removal]; Matter of ___ (AAO Baltimore, Md. Feb. 6, 2012), AILA Doc. No. 12022166 [separation from
family can be “the most important single hardship factor in considering hardship in the aggregate” citing
Salcido-Salcido, 138 F.3d 1292 at 1293 quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.
1983)]; Matter of ___ (AAO Atlanta Sept. 6, 2013), reprinted in 90 No. 37 Interpreter Releases 1955,
1981-85 (Sept. 30, 2013) [hardship factors considered in the aggregate and deportation of son to China
would have devastating effect on 65-year-old father]; Matter of ___(AAO San Francisco Feb. 27, 2013),
AILA Doc. No. 13031156 [same]; Matter of ___(AAO, Portland Oregon, Aug. 10, 2011) [denial of waiver
reversed where AAO considered psychological evaluation and mental health issues of USC husband and
violence in Mexico]; Matter of ___(AAO CSC Mar. 15, 2011), reprinted in 88 No. 14 Interpreter Releases
977-84 (Apr. 4, 2011) [although applicant’s LPR spouse is also born in Mexico her separation from her
USC children was major focus for granting waiver]; Matter of ___(AAO Chicago Nov. 18, 2010), AILA Doc.
No. 10121361 [reversed denial, followed Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996) because all
hardship must be considered cumulatively even if individually it may be insufficient, and recognized that
hardship to children and other nonqualifying members are significant in how it affects qualifying applicant];
Matter of ___(AAO Moscow Oct. 6, 2010), AILA Doc. No. 11011869 [reversed denial under totality of
circumstances and particularly family separation where husband and 2 children live in Russia and USC
wife is working as a nurse in U.S.]; Matter of ___(AAO New York, A72 473 806 Oct. 18, 2011), reprinted in
88 No. 42 Interpreter Releases 2603, 2631-37 (Oct. 31, 2011) [extreme hardship if applicant returned to
China]. However, the AAO will give little weight to a psychological evaluation where the psychologist only
saw the applicant’s spouse once and the test results were not included. Matter of ___(AAO, Columbus
Ohio Dec. 1, 2009), AILA Doc. No. 11091565. Financial, as well as emotional and physical hardship is
considered. Matter of ___, (AAO Pittsburgh Apr. 2, 2010), reprinted in 87 No. 16 Interpreter Releases 865-
71 (Apr. 19, 2010) [discussing 70-year-old LPR mother’s financial dependence on daughter as well as
emotional and medical hardship]. Conditions in the country of return are also considered. Matter of ___
(AAO Miami, Feb. 14, 2013) [considered travel advisories in regard to Honduras]. h
USCIS has a more family-oriented interpretation of extreme hardship in its Policy Manual. See in this part
¶ E.2.k(1) (p.145), supra.
16.c. Favorable Exercise of Discretion—The establishment of extreme hardship does not insure that a
waiver will be granted. The agency still has to determine “that upon review of the record as a whole, a
balancing of the equities and adverse matters must be made to determine whether discretion should be
favorably exercised.” Matter of ___ (AAO Baltimore, Md. Feb. 6, 2012), AILA Doc. No. 12022166at 6
[granting the waiver in the AAO’s discretion after balancing the extreme hardship faced by the USC, the
applicants support from family and friends, his ties to the U.S. and lack of a criminal record against his
misrepresentation regarding his nationality]; Matter of ___(AAO Seattle, Wash. June 18, 2013), AILA Doc.
No. 13081248 [where there was no evidence that applicant was involved in persecution of others, the
favorable factors outweighed the unfavorable ones].
16.d. In deciding INA §212(i) waivers, the fraud requiring the waiver can be used as an adverse factor in
determining the case. Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 569 (BIA 1999), aff’d, Cervantes-
Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001) [following INS v. Yang, 519 U.S. 26 (1996) Page 214 and
Matter of Tijam]. But see Matter of Da Silva, 17 I&N Dec. 288 (Comm. 1979); Matter of Alonzo, 17 I&N
Dec. 292 (Comm. 1979) [pre-Yang cases by Commissioner]; Delmundo v. INS, 43 F.3d 436 (9th Cir. 1994)
[in pre-Yang case BIA could not rely on applicant’s fraudulent acts in applying for LPR status and
obtaining a Social Security, voter’s registration and driver’s license because they were an extension of the
fraudulent entry]. At least one court has also determined that INS may use criteria not stated in the statute
to deny a waiver. Esposito v. INS, 936 F.2d 911 (7th Cir. 1991) [Board used in absentia criminal
convictions pending charges and request by Italy for extradition as basis to deny waiver]; Matter of
___(New York, NY) (AAO Oct. 18, 2011) [relying on adverse factors stated in Matter of Mendez-Moralez a
212(h) case, but finding that the favorable factors outweighed the negative ones].
16.e. Waiver Unavailable—An INA §212(i) waiver is unavailable to waive inadmissibility under INA §212(a)
(6)(F) due to a final order for document fraud in violation of INA §274C. Matter of Lazarte, 21 I&N Dec.
214 (BIA 1996). It is also unavailable to waive a false claim to USC status under INA §212(a)(6)(C)(ii)
made on or after Sept. 30, 1996 as the waiver expressly covers only the first clause of §212(a)(6)(C).
16.f. The waiver is submitted on Form I-601. See in this part ¶ K.1 (p.214), infra.
16.g. Administrative and Judicial Review—A denial of a 212(i) waiver may be administratively appealed to
the AAO. There is also administrative review by the IJ if the person is put in a removal proceeding and
seeks relief there. A challenge to an AAO decision may be brought in federal district court if there is
jurisdiction. However, there is no jurisdiction, generally, to review the denial of §212(i) waivers. Jama v.
DHS, 760 F.3d 490, 495 (6th Cir. 2014) [denial of 212(i) waiver is not reviewable in district court]; Shabaj
v. Holder, 718 F.3d 48 (2d Cir. 2013) [district court lacks jurisdiction to review denial of 212(i) claim even if
constitutional/legal issue raised as they may only be raised in circuit court under INA §242(a)(2)(D)];
Zhang v. Gonzales, 457 F.3d 172 (2d Cir. 2006) [post–REAL ID Act, INA §242(a)(2)(B)(i) bars review of
the discretionary decision of extreme hardship under INA §212(i)]. See Chapter 10, “Federal Judicial
Review” (p.1789 et seq.), infra.
17. INA §212(k)—[8 USC §1182(k)] Waiver for immigrant who is not in possession of a labor certification or
valid immigrant visa or whose immigrant visa was not issued in compliance with law (and is therefore
inadmissible under INA §212(a)(5)(A) or (7)(A)(i)) and who the AG is satisfied did not know, nor could have
known by exercise of reasonable diligence, that she was inadmissible at time of entry. 8 CFR §212.10.
Waiver is filed on form I-601. The three criteria are that: (1) the applicant be inadmissible under 212(a)(5)(A)
or 212(a)(7)(A)(i); (2) that s/he be “in possession of an immigrant visa,” and (3) that the person be “otherwise
admissible.” At least one circuit has held that being “in possession of an immigrant visa” does not mean that it
must be a lawfully obtained visa. Kyong Ho Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir. 2010) [reversed BIA
denial of 212(k) waiver because the government incorrectly required the person to have a substantively valid
immigrant visa to qualify for the waiver]. But see Sang Yoon Kim v. Holder, 603 F.3d 1100 (9th Cir. 2010)
[rejected equal protection challenge to denial of 212(k)].IJ can adjudicate INA §212(k) waiver even if USCIS
has not made a determination on the application. Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987);Mayo v.
Ashcroft, 317 F.3d 867, 873–74 (8th Cir. 2003). The parent’s knowledge as to inadmissibility is imputed to the
child in the view of at least some courts. Mushtaq v. Holder, 583 F.3d 875, 877–78 (5th Cir. 2009)
[naturalization fraud of parents imputed to child who was 9 when fraud occurred]; Senica v. INS, 16 F.3d 1013
(9th Cir. 1994). But see Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006) [holding that the parents’ fraud could
not be imputed to the child].The waiver is available both for persons charged with inadmissibility and
deportability because they were inadmissible on entry. Kyong Ho Shin v. Holder, 607 F.3d 1213, 1218 n.7
(9th Cir. 2010).
18. INA §213—[8 USC §1183] Can waive public charge provision, INA §212(a)(4), if bond posted. Waiver for
permanent/temporary visa. Matter of Ulloa, 22 I&N Dec. 725 (BIA 1999) [waiver is available in deportation
proceedings and IJ has obligation to inform person who is apparently eligible to apply]; 8 CFR §213.1. Page
215
K. Forms for Waiver
1. Form I-601—For all grounds of inadmissibility. 8 CFR §§212.7, 1212.7. See also USCIS, Immigrant Waivers:
Procedures for Adjudication of Form I-601 For Overseas Adjudication Officers (Apr. 28, 2009), at 30–36 AILA
Doc. No. 09061772 . The I-601 waiver is filled in the U.S. unless: (1) the applicant resides in Cuba; or (2) the
applicant resides in a country where there is an international USCIS office and the FOD in the office is
satisfied that there are “exceptional and compelling circumstances that require the immediate filing” such as
medical emergencies, threats to personal safety, aging out issues, and adoptions where petitioner has an
immediate need to depart. The office can also accept an I-290B if the applications are denied. Policy Memo,
USCIS, PM-602-0062.1, Exceptions for Permitting the Filing of Form I-601 and Any Associated Form I-212,
(Nov. 30, 2012), AILA Doc. No. 12120568; USCIS, Adjudicating I-601 Waivers (Aug. 2015) at 460-61, AILA
Doc. No. 15082741a [includes extensive training manuals and guidelines for USCIS officers] In seeking
waivers of criminal grounds, applicant must supply fingerprints, G-325A, national police report from any
country resided in, complete court records, and where appropriate, evidence of rehabilitation. IMMACT90,
Wire #57 (CO 1803-C), reprinted in 68 No. 22 Interpreter Releases 717 (June 17, 1991). For addition
information, see “I-601 Waivers” in Chapter 8, Section XIV.L (p.1705), infra.
2. EOIR-42—Used for cancellation of removal before the IJ. EOIR-42A is cancellation for law permanent
residents. EOIR-42B is for cancellation for non-LPRs.
L. Consular Decision on Waiver—Pursuant to the FAM, consular officers are not to recommend waivers of
ineligibility for multiple entries for a person who: (a) has a mental or physical disorder; (b) is a narcotic drug
addict or a narcotic trafficker; (c) is afflicted with a communicable disease; (d) was convicted for committing a
serious CIMT and has not been rehabilitated and integrated into society for at least 5 years since the date of
conviction or release from confinement whichever is later in time; or (e) has engaged in prostitution or has
procured or attempted to procure or import prostitutes or has received proceeds of prostitution within 10 years
immediately preceding the visa application. 9 FAM 305.4-3(G)(3).
M. Fee Waivers—DHS may waive the fee for virtually all petitions and applications under certain circumstances. 8
CFR §§103.7(c), 1103.7(c), 75 FR 58961, AFM 10.9; Policy Memo, USCIS, PM 602-0011.1, Fee Waiver
Guidelines (Mar. 13, 2011), AILA Doc. No. 11032530 [revoking all previous memos and setting forth criteria in
AFM 10.9]. The request is filed on Form I-912.
There are three categories of fee waiver requests:
Group 1 regarding biometric service fees and I-90, 191, 751, 765, 817, 821, 881, N-300, 336, 400, 470,
565, 600, and 600K;
Group 2 applications and petitions not listed in Group 1 and containing certain limitations covering I-131,
192, 193, 290B, 485, and 601; and
Group 3 regarding any fees associated with the filing of any VAWA self-petition, T & U visas (including
AOS applications), INA §106 (battered spouses of A, G, E-3, or H NIVs), battered spouse or child of an
LPR/USC; and TPS.
To determine eligibility for the waiver the officer should go through a 3-step process:
First: Is the individual receiving a means-tested benefit? If so, that is sufficient and the waiver will normally
be approved.
Second: Is the individual’s household income at or below 150% of the poverty guidelines.? If so that is
sufficient and the waiver will normally be approved.
Third, if the other two are inapplicable then the final question: Is the individual under financial hardship,
due to extraordinary expenses or other circumstances that render him or her unable to pay such as a
recent medical emergency or catastrophic illness?
AFM 10.9(b).
N. Right to Notice of Denial of Visa—INA §212(b), 8 USC §1182(b), provides that if a person’s application for a
visa, for admission or adjustment is denied by an immigration or consular officer because of a determination of
inadmissibility, the officer shall provide the applicant a timely written notice that states the determination and lists
the specific provisions of law under which the person is inadmissible or ineligible. This section may be waived by
the Secy. of State with respect to a particular person or class of persons and does not apply to persons
inadmissible under INA §212(a)(2) and (a)(3). Page 216
O. Effective Date
1. Under IMMACT90—The exclusion provisions and waivers apply to individuals entering the U.S. on or after
June 1, 1991.
2. Under IIRIRA—Provisions became effective on Apr. 1, 1997.
IV. PROCEDURES GOVERNING INADMISSIBILITY

A. Preliminary Procedures Upon Arrival in the U.S.
1. Alien Subject to Inspection at Border [INA §235, 8 USC §1225, 8 CFR §§235, 1235]
1.a. In General—Inspection includes medical (mental examination) as well as immigration inspection. INA
§232, 8 USC §1222. CBP officers are empowered to interrogate applicants and examine documents to
determine whether the alien or LPR is admissible. CBP officers are prohibited from engaging in racial
profiling and may not use race or ethnicity when screening applicants for admission unless there is a
compelling governmental interest and it is narrowly tailored to that interest. Memo, Winkowski, Acting
Comm., CBP Policy on Nondiscrimination in Law Enforcement Activities (Feb. 6, 2014), AILA Doc. No.
14024141; Fact Sheet, U.S. Department of Justice Racial Profiling Guidance, Dec. 7, 2014, AILA Doc.
No. 14121646 [no profiling by DHS generally in regard to the use of race, ethnicity, gender, national origin,
religion, sexual orientation or gender identity]. INS officers previously consulted a “Lookout Book,” which
has now been automated through a computerized lookout system or in remote areas through the use of
the Portable Automated Lookout System (PALS), which uses CD or DVD technology. DHS maintains an
interagency computerized lookout system called the Interagency Border Inspection System (IBIS) which
complements the DOS Consular Lookout and Support System (CLASS), and TECS II (Treasury
Enforcement Communications System). TECS is now considered the major system for DHS information.
Strunk v. DOS, 905 F.Supp.2d 142, 146 (D.D.C. 2012). There are also other automated internal DHS
systems such as APSS (Asylum Pre-Screening System), NAILS (National Automated Immigration
Lookout System), DACS (Deportable Alien Control System), NIIS (Nonimmigrant Information System),
RAPS (Refugee, Asylum and Parole System) and TIPOFF (terrorist database). The Arrival and Departure
Information System (ADIS) is a centralized database that reports each person’s arrival and departure from
the United States. DHS previously maintained a program US-VISIT, which was part of ADIS. DHS now
established the Office of Biometric Identity Management (OBIM) to replace US-VISIT. OBIM utilizes the
automated biometric identification system (IDENT), which is the database managed by CBP to check
biometric identifiers (fingerprints/photographs) against other databases such as CLASS. OBIM will work
with other agencies, including the FBI, through the FBI’s criminal history data base—Integrated
Automated Fingerprint Identification System (IAFIS)—so that a person entering the U.S. will have his or
her criminal history reviewed electronically. DHS has directed all its components to engage in substantial
information sharing. Memo, Chertoff, Sec. DHS, Policy for Internal Information Exchange and Sharing
(Feb. 1, 2007), AILA Doc. No. 10101465 (Oct. 14, 2010). ADIS now receives information from IDENT,
APIS, BCI, NIIS, TECS, CLAIMS, ELIS and SEVIS. PIA, ADIS (DHS/CBP/PIA-024(b), Apr. 28, 2017),
AILA Doc. No. 17051735.
1.b. Sex Offender Travel—The U.S. Marshals Service through its National Sex Offender Targeting Center is
now authorized to “transmit notification of international travel of a sex offender to the destination country
of the sex offender, including to the visa-issuing agent or agents in the United States of the country” and
to “receive incoming notification concerning individuals seeking to enter the [U.S.] who have committed
offenses of a sexual nature and shall share the information received immediately with [DHS].” (emphasis
added) International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through
Advanced Notification of Traveling Sex Offenders, H.R. 515 (Feb. 8, 2016), Sec. 5
1.c. APIS—CBP also maintains the Advanced Passenger Information System (APIS) which allows it to
obtain advance information from carriers on persons entering and leaving the U.S. 70 FR 17820 (Apr. 7,
2005). Airlines and cruise ships send advance biographic and other passenger information to DHS
electronically. CBP has adopted final rules requiring various forms of notification of passenger and crew
lists at least 30 minutes before departure. 72 FR 48320 Page 217 (Aug. 23, 2007). Some of those lists are
now exempt from portions of the Privacy Act. 81 FR 14947-98 (Mar. 21, 2016)
1.d. Secure Flight Program—In addition to APIS, DHS has instituted, through TSA, the Secure Flight
Program, 49 CFR §§1560 et seq.; 73 FR 64018 (Oct. 28, 2008), which requires domestic and
international airlines to provide, 72 hours before flight time, the name, date of birth, and gender of
individuals who seek to fly into the U.S. or over the continental U.S. If it is less than 72 hours, they must
provide the information immediately upon securing the reservation. TSA will designate the person for
inhibited status (may not board), enhanced screening, or clearance, 49 CFR §1560.105(b), after matching
the information with the Watch List (No Fly and Selectee List components of the Terrorist Screening
Database). 49 USC §44903(j)(2). TSA may rely on a “reasonably similar” or exact match to the Watch
List. 73 FR at 64025. If TSA has not designated the individual prior to the flight or informs the airline that
the person is in inhibited status, the traveler must present a verifying identity document (unexpired foreign
passport or U.S. federal, state or tribal document that includes his full name, date of birth and
photograph). The airline must then provide to TSA secure flight passenger data that includes the same
information as well as flight and passport information. An airline may not override the decision of TSA to
place a passenger in inhibited status or enhanced screening status. 49 CFR §1560.105(b)(4).
(1) Challenge to Watch List—In Shearson v. Holder, 865 F.Supp.2d 850 (N.D. Ohio 2011) a USC
detained at the U.S.-Canadian border with her two USC children for 2 ½ hours challenged her
placement on the watch list that resulted in her detention. The court found she had standing,
notwithstanding City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983), but determined she failed to
exhaust her administrative remedies as a prudential matter as to her Fifth Amendment claim by not
utilizing DHS TRIP. The court also rejected her 1st amendment, equal protection, privacy, and APA
claims as well.
1.e. Immigration Advisory Program—The U.S. has entered into “arrangements” with other nations to identify
high-risk travelers (terrorists) at foreign airports before they board aircraft to the U.S. These agreements
allow specialized CBP personnel posted at the foreign airport to utilize current targeting and passenger
analysis information and/or assessment of passengers’ documentation to identify high-risk persons and to
make “no board” recommendations to the carriers and the host country. DHS has signed agreements with
the Spanish (July 1, 2009) and the French (June 3, 2010) governments. Press Release, DHS, United
States and France Establish Arrangement to Interdict High-Risk Travelers, (June 3, 2010), AILA Doc. No.
10060371.
2. Money Laundering Watch List—Under the USA PATRIOT Act §1006(b), Congress authorized the creation
of a money laundering watch list that identifies individuals worldwide who are known or suspected of money
laundering.
3. Disclosure of Lookout Information—Federal courts have ordered the disclosure of certain information in
the Lookout System (formerly known as the “Lookout Book”). Lawyers Comm. for Human Rights v. INS, 721
F.Supp. 552 (S.D.N.Y. 1989). Under IMMACT90 §601(c), the AG and Secy. of State were required to develop
“protocols and guidelines for updating lookout books and the automated visa lookout system and similar
mechanisms for the screening of aliens applying for visas.” These protocols and guidelines were required to
be developed in such a manner as to remove an alien’s name after a request and to inform the alien of the
removal or that she continues to be inadmissible. In addition, the Foreign Relations Authorization Act, FY
1992, PL 102-138, 105 Stat. 647 (Oct. 1991), required DOS to establish a procedure to delete within 3 years,
the names of all persons who are not inadmissible from the “Lookout Book” except those listed for law
enforcement purposes. The computer system must clearly provide that those listed solely for law
enforcement purposes are not excludable. Consular officers are now mandated to certify that they have
checked the relevant lookout system before issuing a visa. Foreign Relations Authorization Act, FY 1994 and
1995, PL 103-236, 108 Stat. 382.
4. Disclosure of ADIS and ENFORCE / IDENT Records—68 FR 69412–17 (Dec. 12, 2003). Records in the
ADIS system may be disclosed to: (1) appropriate law enforcement agencies and organizations; (2) an
attorney or representative for individual in removal proceedings; (3) court, grand jury or adjudicative body
where DHS or employee of DHS is involved; (4) member of Congress or staff; (5) GSA or NARA (National
Archives and Records Administration) for inspections; (6) news media or public where there exists a
legitimate public interest in the disclosure or where disclosure Page 218 is necessary to preserve the integrity
of DHS, unless it would constitute an unwarranted invasion of privacy; (7) contractors and grantees; (8)
former DHS employee to respond to government or licensing request; and (9) federal, state, tribal, local, or
foreign government in regard to hiring or retaining an employee. ADIS now receives information from IDENT,
APIS, BCI, NIIS, TECS, CLAIMS, ELIS and SEVIS. It provides information regarding travel history to USCIS
(including ELIS, Person Centric Query Service, E-Verify, SAVE), to TECS (I-94 information), to ICE (unvetted
overstays), to SEVIS (student travel events), to FBI (travel history), to DOS Consolidated Consular Database
(travel history). PIA, ADIS (DHS/CBP/PIA-024(b), Apr. 28, 2017), AILA Doc. No. 17051735.
Records in the ENFORCE/IDENT system may be disclosed to: (1) law enforcement agencies where there is
a facial violation of the law; (2) other law enforcement where information is necessary to carry out DHS’s
functions and statutory mandates; (3) government agency regarding employment or the issuance of a
benefit; (4) actual or potential party or his attorney for the purpose of negotiation or discussion on such
matters as settlement of the case or discovery proceedings; (5) government agency seeking to collect a
loan/debts; (6) news media or public where there exists a legitimate public interest in the disclosure or where
disclosure is necessary to preserve the integrity of DHS unless it would constitute an unwarranted invasion of
privacy; (7) member of Congress or staff; (8) contractors and grantees; (9) former DHS employee to respond
to government or licensing request; (10) former employee of DHS to respond to official inquiry; (11)
individuals who apply for any form of automated or other expedited inspection for verifying eligibility to cross
the borders into the U.S.; and (12) individuals who are permitted access to the sterile areas of airports after
undergoing screening, including an immigration check. 71 FR 13987 (Mar. 20, 2006)
5. Challenging US-VISIT / OBIM Records—69 FR 2615 (Jan. 16, 2004). A person who believes the US-VISIT
system (which has now been replaced by the Office of Biometric Identity Management) contains inaccurate
information about them must send the following information by mail or fax (202-298-5201) to US-VISIT
Privacy Officer, US-VISIT Program, U.S. Department of Homeland Security, Washington, D.C. 20528: name,
address, contact numbers, date and place of birth, date of arrival in and/or departure from the U.S., port of
arrival and/or departure in U.S., name of airline or sea vessel and flight number or cruise line ticket number,
passport number and country of issuance, and U.S. visa number. The requester must sign the request and
the signature must be notarized or submitted under penalty of perjury under 28 USC §1746. Privacy officer
may also be called at (202) 298-5200. 69 FR 2615 (Jan. 16, 2004).
6. Challenging ADIS Records—A USC or LPR can obtain the information contained in this database through
the Privacy Act or FOIA and can then contest or seek amendment of record entries by submitting a form at
http://www.cbp.gov/foia, or sending a letter to: CBP FOIA Headquarters Office, U.S. CPB, FOIA Division,
1300 Pennsylvania Ave. NW, Rm. 3.3D, Washington, DC 20002. Include in request the requester’s full name,
current address, DOB, a copy of the record in question, and a detailed explanation of the change sought. If
the matter cannot be resolved at this level the USC/LPR can appeal to DHS Trip and then to the DHS Privacy
Office. 68 FR at 69414 (Dec. 12, 2003). The current address for the Chief Privacy Officer is: Attn: DHS
Privacy Office, DHS, Mailstop 0655, 245 Murray Dr. SW, Washington, DC 20528, Fax: (202) 343-4010. PIA,
DHS/CBP/PA-024(b) at 22-24 (Apr. 28, 2017), AILA Doc. No. 17051735.
7. Challenging ENFORCE / IDENT Records—Subject to 5 USC §552a(j)(2) and (k)(2), a person may submit a
FOIA request to the appropriate agency or to DHS at Chief, Information and Disclosure Mission Support,
Office of Investigations, 425 “I” Street, NW, Washington DC 20536. Persons desiring deletion or amendment
to a record should direct their request to ENFORCE / IDENT Program Management Office, 1616 N. Fort
Myer Drive, Arlington, VA. 22209. 68 FR at 69417 (Dec. 12, 2003).
8. DHS-TRIP: Challenging a Lookout and Secure Flight Determination—DHS has established a program to
challenge a lookout or no-fly determination called the Traveler Redress Inquiry Program or DHS-TRIP. 49
CFR §1560.201. Forms and instructions to initiate a redress process may be obtained at:
http://www.dhs.gov/trip. The street address for DHS Trip is 601 S. 12th St., TSA-901, Arlington, VA 22202.
Following submission, the applicant receives a redress number and DHS will “provide the individual with a
timely written response.” 49 CFR §1560.201(d). If DH-TRIP does not provide a sufficient response, an
applicant can appeal to the Chief Privacy Officer at: Page 219 Attn: DHS Privacy Office, DHS, Mailstop 0655,
245 Murray Dr., SW, Washington, DC 20528, Fax: (202) 343-4010. PIA, DHS/CBP/PA-024(b) at 22-24 (Apr.
28, 2017), AILA Doc. No. 17051735. The records generated from the Lookout system or Secure Flight (or
APIS) may contain inaccurate information from NCIA, which has recognized the limitations of its own records.
28 CFR §§16.96(b)(6), (h)(5), and (k)(5). A person may also make a request under the Privacy Act to amend
a CBP record by submitting a request online at http://www.cbp.gov/foia, or by writing to CBP FOIA
Headquarters Office U.S. CBP, 1300 Pennsylvania Ave., NW, Rm. 3.3D Washington, DC 20002. Failure to
seek DHS-TRIP may be viewed as a failure to exhaust administrative remedies. Shearson v. Holder, 865
F.Supp.2d 850, 861-63 (N.D. Ohio 2011) [Fifth Amendment claim dismissed on prudential grounds for not
utilizing DHS-TRIP]. See also DHS, How to File a Complaint (Oct. 2012), AILA Doc. No. 12102645. Some of
the records may be exempt from the Privacy Act. 81 FR 14947-98 (Mar. 21, 2016). Challenge to DHS-TRIP
unsuccessful. Bibicheff v. Holder, 55 F.Supp.3d 254 (E.D.N.Y. 2014) [court rejected applicants Fourth and
Fifth Amendment and 1983 claims and found that DHS-TRIP response after plaintiff filed case mooted his
APA/mandamus claims]. But see Ibrahim v. DHS, 62 F.Supp.3d 909, 927-31 (N.D. Cal. 2014) [plaintiff
improperly placed on no-fly list had due process right to have name removed because DHS-TRIP was an
inadequate post-deprivation remedy]; Latif v. Holder, 28 F.Supp.3d 1134 (D. Or. 2014) [person placed on no-
fly list had a constitutionally protected liberty interest to travel and in their reputations and the DHS-Trip
process violated the Due Process clause and the APA]; Tarhuni v. Holder, 8 F.Supp.3d 1253, 1272-76 (D. Or.
2014) [USC plaintiff placed on no-fly list and thereby banned from international travel had a procedural due
process claim that was not remedied by DHS-TRIP]. Although district courts have found jurisdiction to
challenge DHS-Trip, the circuit courts have declined to do so on direct appeal on the theory that their
jurisdiction under 49 USC §46110 to review orders of TSA, DHS and FAA does not reach no-fly orders issued
by the Terrorism Screening Data Base. Ege v. DHS, 784 F.3d 791 (D.C. Cir. 2015); Arjmand v. DHS, 745 F.3d
1300 (9th Cir. 2014).
9. Removing Information from CLASS—LPRs or USCs seeking to remove their names from CLASS or
correct information contained in CLASS should utilize DHS-TRIP, supra. PIA, Consular Lookout and Support
System (CLASS) (March 12, 2012) at pp.13-16. An applicant for a visa may also obtain the following public
information pursuant to 9 FAM 603.2-8: (1) correspondence previously sent to or given to the applicant by the
post; (2) civil documents presented by the applicant; and (3) visa applications and any other documents,
including sworn statements, submitted by the applicant to the consular officer in the form in which they were
submitted; i.e., with any remarks or notations by U.S. government employees deleted. Also, see 22 CFR
§171.31 regarding Privacy Act procedures. It is worth noting that pursuant to 9 FAM 403.10-2(B)(2)(a)(3)
there is a presumption of accuracy in regard to DHS lookout entries in CLASS and consular officers are not
to “look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of
inadmissibility described in the DHS lookout entry.” A consular officer is not bound by a CBP officer’s notes in
determining admissibility (such as 212(a)(6)(C)(i)) when issuing an I-275 (application to withdraw request for
admission) at the border unless there has been a DHS CLASS determination. 9 FAM 403.10-2(B)(2)(b).
10. Representation—DHS policy is to not permit counsel at primary or secondary inspection. 8 CFR §292.5(b),
1292.5(b). CBP views the prohibition as applicable to persons held in short-term custody (which they define
as less than 72 hours). Liaison Meeting, AILA and CBP, Q.#5 (Nov. 21, 2014), AILA Doc. No. 14121746.
However, CBP recognizes that this does not preclude inspectors “from allowing a family member, friend, or
other accompanying helper from being present … in appropriate circumstances … includ[ing] the inspection
of minors, elderly persons, inexperienced travelers, or whenever the accompanying helper can assist in
providing information pertinent to the inspection.” Memo, Ahern, Asst. Comm., Field Operations, CBP, Man-1-
FO:PO CM, (July 30, 2003), AILA Doc. No. 15102661. Gonzaga-Ortega v. Holder, 736 F.3d 795, 801-04 (9th
Cir. 2013) [returning LPR treated as arriving alien had no right to counsel at secondary inspection]. But see 5
USC §555(b) [Administrative Procedures Act]. A CBP inspector may obtain an interpreter for assistance
under regulated conditions. See IFM at 17.18. The CBP inspector by statute may require an applicant for
admission to provide a statement under oath. INA §235(a)(5). There is a serious question as to whether this
provision violates the Fifth Amendment’s prohibition against self-incrimination. See also in this part ¶ I.2
(p.230), infra. Page 220
11. Medical Grounds—DHS guidelines provide that an applicant for admission will not be asked in a primary
inspection if she is inadmissible under any of the medical exclusion grounds. An applicant cannot be referred
to secondary inspection regarding medical grounds based on literature she is carrying or on answers to
questions concerning the purpose of the trip. Memo, McNary, Commissioner (CO 234-P) (Sept. 18, 1990),
reprinted in 67 No. 37 Interpreter Releases 1084, 1100 (Oct. 1, 1990).
12. Public Charge—CBP officials may not inspect returning LPRs regarding public charge. Nor do inspectors
have the authority to require LPRs or others to repay public benefits as part of inspection process. Memo,
Virtue, Exec. Assoc. Comm., INS, HQ IRT 50/5.12, 96 Act. 044 (Dec. 16, 1997), AILA Doc. No. 97121691.
B. Low-Risk Border Travelers
1. Trusted Traveler/Global Entry Program
8 CFR §235.12; 82 FR 37892-93 (Aug. 14, 2017) [added citizens of Colombia, Singapore, and Switzerland);
81 FR 68441-42 (Oct. 4 2016) [designating and adding U.S. ports of entry for Global Entry]; 81 FR 45170-72
(July 12, 2016) [added all UK citizens]; 81 FR 7822-23 (Feb. 16, 2016) [adding Germany to Global Entry]; 80
FR 1509-11 (Jan. 12, 2015) [adding Panama to Global Entry and expanding program to additional airports];
78 FR 48706 (Aug. 9, 2013) [listing current countries participating including South Korea and Qatar]; 77 FR
5681 (Feb. 6, 2012); 75 FR 82202 (Dec. 29, 2010); 75 FR 82200 (Dec. 29, 2010); 74 FR 39965 (Aug. 10,
2009); 74 FR 18586 (Apr. 23, 2009); 73 FR 47204 (Aug. 13, 2008); 73 FR 30416 (May 27, 2008); 73 FR
19861 (Apr. 11, 2008).
1.a. Nature of Program—It is a voluntary trusted traveler program that expedites the movement of low-risk
air travelers into the U.S. by providing an alternate inspection process for preapproved, prescreened
travelers. The program is currently available to USCs, U.S. nationals, LPRs and persons from countries
that have reciprocal programs, currently including Argentina, Colombia, Germany (who are participants in
the Automated Biometrics-Supported Border Control), India, Netherlands, Mexico, Panama, South Korea
(who are participants in the Smart Entry System), Singapore, Switzerland, Taiwan, the UK, and a limited
number of citizens of Qatar. For more information go to #http://www.globalentry.gov. On July 10, 2015 the
U.S., Canada, and Mexico established a trilateral expansion of trusted traveler to include NEXUS and
Viajero Confiable. Press Release, U.S. Announces Trilateral Agreement with Canada and Mexico to
Expand Trusted Traveler Programs (Aug. 5, 2015), AILA Doc. No. 15080603.
1.b. Eligibility [8 CFR §235.12(b)(1)]—The following groups of persons who hold valid, machine readable
passports, I-551, or other appropriate travel documents determined by CBP may apply: (i) USCs, U.S.
nationals and LPRs; (ii) NIVs from countries that have entered into arrangements with CBP and the
arrangements may vary by country; (iii) persons under 18 who meet the eligibility requirements and have
the consent of a parent.
1.c. Disqualifying factors [8 CFR §235.12(b)(2)]—CPB in its sole discretion determines that the individual
presents a potential risk of terrorism, criminality or is otherwise not a low-risk traveler including the
following:
Applicant provides false or incomplete information;

Applicant has been arrested or convicted of any criminal offense or has pending criminal charges or
outstanding warrants in any country
Applicant has been found in violation of customs, immigration or agriculture regulations, procedures
or laws in any country;
Applicant is the subject of an investigation by any federal, state or local law enforcement agency in
any country;
Applicant is inadmissible or has previously been granted a waiver of inadmissibility;
Applicant is known or suspected of being engaged in conduct in preparation, aid, or related to
terrorism; or
Applicant cannot satisfy CBP of his or her low-risk status or meet other program requirements
However, a denial of admission because the traveler does not qualify for TN, L or other NIV is not a
ground to disqualify someone from the Trusted Traveler program. Q & A, Liaison, AILA-CBP (Mar. 7,
2014), AILA Doc. No. 14030751. Page 221
1.d. Application Procedure [8 CFR §235.12(d)]
Submit electronic application to Global Online Enrollment System (GOES) at https://ttp.cbp.dhs.gov

or at #http://www.globalentry.gov
Pay nonrefundable fee in amount set forth at 8 CFR §103.7(b)(1)(ii)(M)
CBP will schedule an in-person interview at a Global Entry enrollment center. Applicant must bring
the original of the ID document specified in his or her application. Biometrics will be taken.
Acceptance is for 5 years but may be suspended or terminated.
Applicant may reapply up to one year prior to the end of his or her participation period.
1.e. Denial, Suspension or Revocation [8 CFR §232.12(j)]—If denied the applicant will be informed of the
reasons. The applicant’s participation in the program may be suspended or revoked in the sole discretion
of CBP for any of the following reasons: (1) engaged in disqualifying activity; (2) provided false
information; (3) failed to follow terms, conditions and requirements of the program; (4) has been arrested
or convicted of a crime or otherwise no longer meets the program eligibility criteria; or (5) CBP determines
that such action is otherwise necessary. There is no appeal, but a person may send a request for
reconsideration to the Ombudsman’s office. Liaison Meeting, AILA and CBP, Q.#34 (Nov. 21, 2014), AILA
Doc. No. 14121746.
1.f. Procedures—The program allows persons to go directly to a Global Entry kiosk, insert their passport or
I-551 into a machine-document reader. The participant then provides fingerprints electronically which are
compared with those on record. A digital photo is also taken. If everything is in order a receipt is provided
that is then presented directly at the exit control area. NEXUS and SENTRI travelers are now authorized
to use Global Entry kiosks. 75 FR 82202 (Dec. 29, 2010). Global Entry is available at preclearance
stations in Canada. Announcement, CBP “Global Entry Now Available at Pre-Clearance Airports” (Aug. 2,
2011), AILA Doc. No. 11080264.
1.g. Administrative Challenges to Denial, Suspension or Revocation [8 CFR §235.12(k)]
Write to enrollment center where interview within 30 calendar days of denial and place on envelope
“Redress Request Re: Global Entry.” Include any documentation rebutting the reasons for denial.
Initiate redress through DHS Trip
Write the CBP Trusted Traveler Ombudsman
1.h. Legal Challenges—An APA and mandamus action by USC to compel the government to permit his
participation in Global Entry was unsuccessful. Roberts v. Napolitano, 792 F.Supp.2d 67 (D.D.C. 2011)
[admission into Global Entry is committed to agency discretion under the APA and is not subject to
mandamus because it is discretionary].
2. Other Programs—INS PORTPASS was developed as a system to designate certain low risk border
crossers to allow expedited crossing. 8 CFR §235.7. Low risk programs include NEXUS between U.S. and
Canada, SENTRI (Secure Electronic Network for Travelers Rapid Inspection) between U.S. and Mexico,
FAST (Free and Secure Trade Program) for expedited border processing for known, low-risk commercial
drivers; INSPASS for citizens of U.S., Canada, Bermuda, and VWP countries who travel to the U.S. on
business 3 or more times per year or diplomats, representatives of international organizations, or crew
members from VWP countries); INSPASS is not available to anyone with a criminal record or who requires a
waiver. Individuals may enroll for 2 years in these programs. 8 CFR §235.7(a)(4)(xi); 68 FR 10143–45 (Mar.
4, 2003) [describes various programs]. SENTRI has an online enrollment system. CBP Announces SENTRI
Electronic Applications, 83 No. 43 Interpreter Releases 2361, 2396 (Nov. 6, 2006); CBP Trusted Traveler
Announcements, SENTRI (May 30, 2008), reprinted in 85 No. 23 Interpreter Releases 1668 (June 9, 2008).
ABTC (Asia-Pacific Economic Cooperation (APEC) Business Travel Card Program), 8 CFR §235.13 for
qualified U.S. business travelers and U.S. government officials engaged in business in the APEC region. The
program simplifies procedures for short-term business entry but does not include spouses or children;
Applicant files with Global Entry and concurrently files for trusted traveler program. There is also a CBP
“ready lane” program that allows quick passage through the U.S.-Mexican border for persons who have radio
frequency identification (RFID) technology embedded in their document crossing cards such as the new
“green card,” U.S. Passport Card, SENTRI Page 222 card or Border Crossing Card. See e.g., CBP to Open
“Ready Lane” at Otay Mesa Border Crossing, AILA Doc. No. 11042761. There is also a SAPHIRE for
Indonesians and a MACS program for people from Malaysia.
3. Automated Passport Control (APC)—Established an automated process for USCs, Canadians, and VWPs
a primary CBP inspection. Uses a self-service kiosk to submit the Custom’s declaration form and biographic
information. Travelers at the kiosk scan their passports, take a photograph, and answer a series of questions.
Once the questions are answered and the Custom’s declaration is submitted, the traveler is issued a receipt
which he takes with his passport to a CBP officer to complete the process. Fact Sheet, CBP, Automated
Passport Control (June 6, 2014), AILA Doc. No. 14060640
4. Electronic Visa Update System (EVUS)— 8 CFR §215.21-.24; 81 FR 72481-93 (Oct. 20, 2016); 81 FR
72522-23 (Oct. 20, 2016). DHS has established a new electronic system providing for the collection of certain
biographical information from persons from designated countries who are granted NIV visas. Failure to
comply with the information collection system will result in the automatic provisional revocation of the
person’s visa. The program has several components:
4.a. Designation of Countries by DHS—DHS, in consultation with DOS, will designate EVUS countries
through publication in the federal register. 8 CFR §215.23(c). At the present time, the U.S. and China
entered into an agreement permitting 10-year reciprocal B-1/B-2 visas but requiring that visitors
periodically update their basic biographic information. Beginning Nov. 29, 2016, Chinese travelers will
need to go online and update their biographic information prior to seeking admission under the EVUS
system. The program includes all nationals from the People’s Republic of China who hold new or
preexisting visas, but does not include travelers from Hong Kong SAR, Macau SAR and Taiwan. FAQs,
CBP, Electronic Visa Update System (eVUS) (Mar. 2016), AILA Doc. No. 16022661. Chinese travelers
must also update their information at least every two years or upon obtaining a new passport or their 10-
year visa will be invalid. CBP, Announces the Electronic Visa Update System (Mar. 15, 2016), AILA Doc.
No. 16031612; CBP Launches the Electronic Visa Update System for Early Enrollments (Oct. 31, 2016),
AILA Doc. No. 16110100 [Nov. 29, 2016 is start date because after that date Chinese nationals with 10-
year B visas will not be able to travel without EVUS notification after enrollment].
4.b. Compliance Procedures—An individual issued an NIV from a designated country must enroll in EVUS
upon receipt of his or her visa, 8 CFR §215.24(c)(ii), by going to http://www.EVUS.gov. The visa holder
will be required to answer biographical and admissibility questions to enroll. 81 FR at 72484. Notification
will be issued by CBP. 8 CFR §215.23(d). In most cases, notification will be issued immediately on the
next page of the EVUS website. 81 FR at 72483. Once enrolled, the validity period will generally be two
years unless the validity period is changed by DHS or the visa or passport expires prior to the two years in
which case the visa holder will only be given until the end of the visa validity or passport, whichever is
earlier. 8 CFR §215.24(b). A visa holder who has enrolled will be required to reenroll if: (i) he is issued a
new visa or passport; (ii) changes his name; (iii) changes his or her gender; (iv) changes his country of
citizenship or nationality or becomes a dual citizen; or the circumstances underlying the person’s previous
responses to any of the EVUS enrollment questions requiring a “yes” or “no” response have changed. 8
CFR §215.24(e). A person who fails to enroll, fails to reenroll, or allows his enrollment to lapse has his
visa automatically provisionally revoked pursuant to 22 CFR §41.122(b)(3). 8 CFR §215.24(g). Following
compliance with EVUS, the revocation will be reversed and the visa will immediately resume its validity
period. 8 CFR §215.24(h).
4.c. Entry into U.S.—A notification of compliance with EVUS in not a determination of admissibility to the
U.S. which is only made after CBP inspection. 8 CFR §215.24(f).
4.d. Data Collection—DHS has established a system of records titled Department of Homeland
Security/U.S. Customs and Border Protection—DHS/CBP-022 Electronic Visa Update System (EVUS)
System of Records. 81 FR 60371-76 (Sept. 1, 2016). The purpose of the records system is to collect and
maintain records on NIV holders who hold a passport that was issued by an identified country approved
for inclusion in EVUS and have been issued an NIV of a designated EVUS country. It will also cover
records of USCs and LPRs whose names are provided to DHS Page 223 as part of EVUS enrollment.
The information collected is vetted against security and law enforcement databases at DHS including
TECs and ATS (Automated Targeting System) to make sure they do not pose a security risk.
C. Persons Subject to Inspection [INA §235(a), 8 USC §1225(a), 8 CFR §§235.1, 1235.1]
Persons present in the U.S. who were not admitted;

Persons who arrive in the U.S. even if they are not at a designated port of entry;
Persons who are interdicted in international waters;
Stowaways; and
All persons who are applicants for admission, readmission or transit.
D. Expedited Removal [INA §235(b)(1), 8 USC §1225(b)(1)]
1. Generally—Under IIRIRA, Congress mandated (beginning Apr. 1, 1997) a procedure for expedited removal
of persons deemed inadmissible at the border under INA §212(a)(6)(C) (material misrepresentation) and INA
§212(a)(7) (lack of IV or NIV documents). 8 CFR §§235.3(b), 1235.3(b). The expedited-removal regulations
have been upheld. AILA v. Reno, 199 F.3d 1352, 1356–57 (D.C. Cir. 2000) [finding that AILA lacked third-
party standing and that district court’s dismissal of individual plaintiffs for failure to state cause of action was
correct]. Expedited removal may also apply to persons not admitted or paroled who are unable to prove they
have been in the U.S. continuously for 2 or more years. INA §235(b)(1)(A)(iii)(I)–(II). On Aug. 11, 2004, DHS
expanded expedited removal to include persons present in the U.S. without having been admitted or paroled,
who are encountered within 100 miles of the Southern Border, and who cannot establish that they have been
physically present in the U.S. continuously for the preceding 14 days. Notice Designating Aliens for
Expedited Removal, 69 FR 48877 (Aug. 11, 2004). It was subsequently expanded to all borders including the
Northern Border. Press Release, DHS (Jan. 30, 2006), AILA Doc. No. 06013018; Memo, Mead, Ex. Assoc.
Director, ICE, Strategic Use of Expedited Removal Authority (Apr. 5, 2011), AILA Doc. No. 14101447. The
current proposal is to further expand 235(b), consistent with INA §235(b)(1)(A)(iii)(II), to a 2-year period prior
to a person’s determination of admissibility rather than 14 days. EO 13767 Sect. 11(c) (Jan. 25, 2017), 82 FR
8793, 8796 (Jan. 30, 2017), Memo, Kelly, Sec. DHS, Implementing the President’s Border Security and
Immigration Enforcement Improvements Policies (Feb. 20, 2017), at ¶G, p. 6, AILA Doc. No. 17021831.
Persons who arrive in the U.S. by sea (except if they come from a country in the Western Hemisphere for
which we no longer have full diplomatic relations, formerly Cuba) will also be subject to expedited removal,
unless they were in the U.S. for 2 years prior to the determination of inadmissibility. 67 FR 68924–26 (Nov.
13, 2002). Cubans are no longer exempt from expedited removal. 82 FR 4902 (Jan. 17, 2017). Persons
paroled prior to Apr. 1, 1997, will not be put in expedited removal proceedings. Also, persons re-entering the
U.S. on advance parole, although arriving aliens, may not be subject to expedited removal. 8 CFR §§1.2,
1001.1(q). Memo, Perryman, Exec. Assoc. Comm. INS, 501 12.1-P (June 30, 1997), reprinted in 74 No. 31
Interpreter Releases 1247, 1258–59 (Aug. 18, 1997). See also Bona v. Gonzales, 425 F.3d 663, 667–68 (9th
Cir. 2005) [person granted advance parole not considered an arriving alien for purposes of expedited
removal]; American-Arab Anti-Discrimination Comm. v. Ashcroft, 272 F.Supp.2d 650 (E.D. Mich. 2003)
[where ICE placed person who was paroled on a fraudulent I-512 into expedited removal proceedings, the
court found that persons paroled into U.S. are not “arriving aliens”]. If a person subject to inspection is not
inadmissible under one of the 2 designated sections, he would be subject to a removal proceeding under INA
§240 for persons who are inadmissible (unless suspected of being a terrorist in which case INA §235(c)
would apply). A record of the proceedings, including the facts of the case and the statements made by the
applicant for admission, should be created on Form I-867AB. 8 CFR §§235.3(b)(2)(i), 1235.3(b)(2)(i).
1.a. The categories included in the view of USCIS, Memo, Lafferty, Chief, Asylum Division, USCIS, Release
of Updated ADOTC, Credible Fear of Persecution and Torture Determination, HQRAIO 120/9.15b (Feb.
13, 2017), AILA Doc. No. 17022434, 17022435 are:
Arriving aliens coming or attempting to come into the U.S. at a port of entry or seeking transit
through the U.S. at a port of entry, 8 CFR §235.3(b)(1)(i) [But, persons attempting Page 224 entry
through Canada must first establish an exception to the Safe Third Country Agreement, through a
Threshold Screening interview, in order to receive a credible fear interview, 8 CFR §208.30(e)(6)];
Persons interdicted in international or U.S. waters and brought to the U.S. by any means, whether
or not at a port of entry, 8 CFR §1.2; 67 FR 68924 (Nov. 13, 2002); 82 FR 4902 (Jan. 17, 2017); 82
FR 8431 (Jan. 25, 2017);
Persons paroled under INA §212(d)(5) on or after Apr. 1, 1997 if parole is terminated, including
persons paroled for urgent humanitarian or significant public benefit reasons. It does not include
persons granted advance parole;
Persons who arrived by sea who have not been admitted or paroled and who have not been in the
U.S. continuously for the two-year period prior to the determination of inadmissibility, 67 FR 68924
(Nov. 13, 2002); 82 FR 4902 (Jan. 17, 2017); 82 FR 8431 (Jan. 25, 2017);
Person apprehended within 100 air miles of any U.S. international land border, who have not been
admitted or paroled, and who have not established to the satisfaction of an immigration officer that
they have been physically present in the U.S. continuously for the 14-day period immediately prior
to the date of encounter, 69 FR 48877 (Aug. 11, 2004); 82 FR 4902 (Jan. 17, 2017); 82 FR 8431
(Jan. 25, 2017). Subject to new regulations, the current proposal is to expand the 14-day period to
2 years immediately prior to the date of determining inadmissibility. EO 13767 Sect.11(c) (Jan. 25,
2017), 82 FR 8793, 8796 (Jan. 30, 2017), Memo, Kelly, Sec. DHS, Implementing the President’s
Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), at ¶G, p. 6,
AILA Doc. No. 17021831.
2. Exceptions
2.a. Credible Fear of Persecution
(1) Determination—Applicants who state they are seeking asylum or fear persecution or torture and can
establish a “credible fear” of persecution will not be subject to expedited removal. 8 CFR §§235.3(b)
(4), 1235.3(b)(4). Credible fear is defined as “a significant possibility … that the alien could establish
eligibility for asylum under 208.” INA §235(b)(1)(B)(v). A “significant possibility” must be more than “a
minimal or mere possibility” or no possibility and generally requires that the applicant “demonstrate a
substantial and realistic possibility of succeeding.” Memo, Lafferty, Chief, Asylum Division, USCIS,
Release of Updated ADOTC Lesson Plan, Credible Fear of Persecution and Torture Determination,
HQRAIO 120/9.15b (Feb. 13, 2017) at 14-16, AILA Doc. No. 17022434, 17022435; EO 13767 Sect.
11(b) (Jan. 25, 2017), 82 FR 8793, 8796 (Jan. 30, 2017); Memo, Kelly, Sec. DHS, Implementing the
President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), at
¶I, pp.7-8, AILA Doc. No. 17021831The burden of proof is on the applicant who must show that her
testimony is credible, persuasive, and refers to specific facts. Lesson Plan, supra at 14-15.The
standard of proof is higher than the U.N.’s “not manifestly unfounded” but the significant possibility
standard “does not require the applicant to demonstrate that the chances of success are more likely
than not” in the asylum context. Lesson Plan, supra at 15. If a person holds multiple citizenships or
nationalities he must demonstrate a credible fear of persecution or torture from at least one country to
be eligible for referral to the IJ for a full hearing. Lesson Plan, supra at 35. No bars apply in credible
fear determinations although the officer should elicit testimony about them. Lesson Plan supra at 43-
44; 8 CFR §208.30(e)(5).
(2) Convention Against Torture—The officer must also determine whether there is a credible fear of
torture under CAT. But under CAT the standard of proof—significant possibility—is a significant
possibility that it is “more likely than not” that he or she would be tortured because the CAT standard is
“more likely than not.” Lesson Plan, supra at 16. Officers are required to consider all elements of CAT
when making the decision including: custody and control, lawful sanctions, specific intent to inflict
severe physical or mental pain or suffering, when mental pain and suffering constitute torture, public
official action and acquiescence, and internal location. Lafferty, supra at 36-43. Page 225
(3) Standard—The credibility standard for both credible fear in asylum and CAT is the “totality of the
circumstances, and all relevant factors” standard. Id. at 18. Factors to consider are the internal and
external consistency of the claim, the plausibility, demeanor, candor and responsiveness of the
applicant, and the amount of detail the applicant provides. But the officer “must also take into account
cross-cultural factors, effects of trauma, and the nature of expedited removal and the credible fear
process including detention, relatively brief and often telephonic interview, etc. when evaluating these
factors in the credible fear context.” Further, in assessing the applicant’s credibility under the totality of
the circumstances, the officer should consider: (i) trauma the applicant has endured; (ii) passage of a
significant amount of time since the described events occurred; (iii) certain cultural factors, and the
challenges inherent in cross-cultural communication; (iv) detention of the applicant; (v) problems
between the interpreter and the applicant, including problems resulting from differences in dialect or
accent, ethnic or class differences, or other differences that may affect the objectivity of the interpreter
or the applicant’s comfort level; and (vi) unfamiliarity with speakerphone technology, the use of an
interpreter the applicant cannot see, or know personally. The officer must also give the applicant an
opportunity to explain any credibility concerns the officer may have. But “trivial or minor credibility
concerns in and of themselves will not be sufficient to find an applicant not credible.” Memo, Lafferty,
Chief, Asylum Division, USCIS, Release of Updated ADOTC Lesson Plan, Credible Fear of
Persecution and Torture Determination, HQRAIO 120/9.15b (Feb. 13, 2017) at 18-21, AILA Doc. No.
17022434, 17022435.
(4) Family Members—Immediate family members, who are defined as a spouse and child under 21 who
arrive concurrently with the applicant, may be considered under the applicant’s claim if they desire to
be processed together. Memo, Lafferty, Chief Asylum Division, USCIS, HQRAIO 120/9.15a, Guidance
on Immediate Family Members in Credible Fear (Jun. 27, 2014), reprinted in 19 Bender’s Immigr. Bull.
1241-42 (Nov. 1, 2014); Lesson Plan, supra at 45. AOs however may process family members
together or separately at their discretion and they have no obligation to jointly consider the family
together if they are at separate detention facilities, although they may exercise their discretion to do so.
For the applicable standards and procedures governing credible fear interviews see generally Lesson
Plan, supra. For a more detailed discussion of the credible-fear interview process, see Chapter 4, ¶
XI.B.6 (p.855).
(5) Review—If the applicant establishes a credible fear to an asylum officer (AO), the case is referred for
an asylum, withholding of removal, and/or CAT hearing before the IJ under INA §240. 8 CFR
§§208.30, 235.3, 1208.30, 1235.3. If the applicant establishes credible fear, she may be paroled if she
establishes to ICE’s satisfaction her identity, the likelihood that she will appear for all hearings and
enforcement appointments (removal), and that she is not a security risk. ICE Form 71-012 [Parole
Advisal and Scheduling Notification]. ICE may not use deterrence of others when considering release.
R.I.L-R v. Johnson, 80 F.Supp.3d 164, 186-91 (D.D.C. 2015) [preliminary injunctive relief granted to
class of mothers with minor children from Honduras, Guatemala and El Salvador who established
credible fear but were kept in detention while asylum claims were being processed because of ICE’s
deterrence policy]. If the AO finds that the applicant does not have a credible fear, the applicant may
request review before the IJ. DHS will issue Form I-863, which limits the IJ’s jurisdiction to review of
the credible fear determination. 8 CFR §1208.30(g). Review must be made within 7 days, and the
applicant must be detained until the credible-fear determination is made, subject to narrow parole
grounds for medical emergency or law enforcement purposes. 8 CFR §§235.3(b)(4)(ii), 1235.3(b)(4)
(ii). If the IJ finds a credible fear, the applicant is placed in INA §240 removal proceedings (unless they
are a stowaway). If no credible fear is found, the applicant is detained until removed. INA §§235(b)(1)
(B)(iii)(IV). The IJ denial is final, there is no appeal, and the applicant upon denial is returned to ICE for
removal. The Service, however, may reconsider the decision. 8 CFR §1208.30(g)(2)(iv)(A). An
applicant can consult with counsel before the credible fear interview with the AO, but consultation shall
be at no expense to the government and shall not delay proceedings. A person may obtain a second
credible fear determination prior to removal, even if the first one was rejected by the AO and the IJ,
where the USCIS Office of Refugee, Asylum and International Operations determines that the Page
226 applicant “has made a reasonable claim that compelling new information concerning the case
exists and should be considered.” Memo, Benson, Exec. Assoc. Comm. for Field Operations, INS
(Dec. 30, 1997), reprinted in 75 No. 7 Interpreter Releases 255, 270–73 (Feb. 23, 1998). The definition
of an AO for purposes of expedited removal includes persons who receive comparable training to AOs
or who are supervised by persons who have substantial experience adjudicating asylum claims and
have receive comparable training.
2.b. Unaccompanied Minors—Unaccompanied minors are exempt from 235(b); 8 USC §1232; 6 USC §279;
EO 13767 Sect. 11(e) (Jan. 25, 2017), 82 FR 8793, 8796 (Jan. 30, 2017); Memo, Kelly, Sec. DHS,
Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb.
20, 2017), at ¶I, p. 10, AILA Doc. No. 17021831[but making efforts to inquire whether an unaccompanied
child really is “unaccompanied” if placed in the custody of one or more parent]; Memo, Virtue, Acting
Exec. Comm., HQ 50/5.12, 96 Act. 054 (Aug. 21, 1997), AILA Doc. No. 97082191. ICE may also be
considering ways to get unaccompanied minor children to withdraw their applications for admission so
they may be returned to Mexico. Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s
Border Security and Interior Immigration Enforcement Policies (Feb. 21, 2017), ¶D, AILA Doc. No.
17070730[Mexican and Canadian unaccompanied alien children may be permitted to withdraw their
application for admission and return to Mexico or Canada].
2.c. Stowaways—Although stowaways are not subject to expedited removal or the right to a full removal
hearing, they will be referred to an IJ for asylum or CAT if she meets the credible fear standard upon
indicating an intention to seek asylum, INA §235(a)(2).
2.d. No Diplomatic Relations—A native or citizen of a country in the Western Hemisphere with whose
government the U.S. does not have diplomatic relations who seeks entry at an airport is not subject to
expedited removal. Although written for Cuba, it no longer applies to Cuba as we now have diplomatic
relations with Cuba and Cubans are now subject to expedited removal. Joint Statement, Governments of
Cuba and the United States (Jan. 12, 2017), AILA Doc. No. 17011300; Press Release, Johnson, DHS
Sec., Statement by Sec. Johnson on the Continued Normalization of Our Migration Relationship with
Cuba (Jan. 12, 2017), AILA Doc. No. 17011309; DHS Fact Sheet: Changes to Parole and Expedited
Removal Policies Affecting Cuban Nationals (Jan. 12, 2017), AILA Doc. No.17011361; 82 FR 4769-71
(Jan. 17, 2017); 82 FR 4771-73 (Jan. 17, 2017); 82 FR 4902-05 (Jan. 17, 2017).
2.e. CNMI—A person seeking entry to the Commonwealth of the Northern Mariana Islands after Jan. 1 2015
may seek asylum, withholding and/or CAT relief. INA §235(b)(1)(G); 8 CFR §1235.6(a)(1)(ii), (iii).
2.f. LPRs, Refugees/Asylees, USCs—LPRs or persons granted refugee or asylee status or USCs are not
subject to expedited removal. 8 CFR §§235.3(b)(5), 1235.3(b)(5).
2.g. Lawfully Admitted Persons—Persons lawfully admitted are not subject to expedited removal. 8 CFR
§§235.3(b)(6), 1235.3(b)(6).
2.h. VWP—A person applying for admission under the VWP, even if inadmissible under §§212(a)(6)(C) or
(7) is not subject to expedited removal if he seeks asylum. 8 CFR §217.4(a) Matter of Kanagasundram, 22
I&N Dec. 963 (BIA 1999).
2.i. Prosecutorial Discretion—DHS has prosecutorial discretion to place a person subject to expedited
removal in a “regular” removal proceeding under INA §240, Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520
(BIA 2011) [IJ has jurisdiction to hear INA §240 proceeding of Cubans stopped at a land border who could
have been subject to expedited removal]; Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017)
[reversed IJ’s decision to terminate removal proceedings because respondent was never given the
opportunity when stopped at the border to seek asylum before DHS].
3. Due Process Protections—Because DHS’s interpretation of the expedited removal proceedings includes
persons who entered illegally and were apprehended within 100 miles of the border, those persons are
protected by the Due Process Clause. U.S. v. Raya-Vaca, 771 F.3d 1195, 1202-06 (9th Cir. 2014) [adhering
to the S.Ct.’s “repeated pronouncement that the Due Process Clause applies to all who have entered the
United States—legally or not”]. But see Castro v. DHS, 835 F.3d 422 (3d Cir. 2016) Page 227 [Suspension
Clause not violated despite preclusion of review of substantive and procedural due process challenges to
credible fear determinations in expedited removal due to INA §§242(e)(2)(B), (e)(5)].
4. Detention and Parole
4.a. Overview—A person subject to expedited removal shall be detained pending removal, except where
DHS paroles the applicant because “parole is required to meet a medical emergency or is necessary for a
legitimate law enforcement objective.” 8 CFR §§235.3(b)(2)(iii), 1235.3(b)(2)(iii). Parole is now being
strictly construed to permit temporary release only: (i) when the person is being removed; (2) when the
person obtains an order granting relief or protection from removal or is a USC, national of US, LPR,
refugee, asylee, TPS or holds a valid immigration status; (3) when an ICE FOD, ICE Special Agent-in-
charge, U.S. Border Patrol Sector Chief, CBP FOD, or CBP Air & Marine Operations Director consents to
person’s withdrawal of application for admission and contemporaneously departs; (4) when DHS required
to parole by statute, or to comply with a binding settlement agreement or order issued by a court or
administrative authority; (5) when ICE FOD, ICE Special Agent-in-charge, U.S. Border Patrol Sector
Chief, CBP FOD, or CBP Air & Marine Operations Director grants parole pursuant to INA §212(d)(5) with
the written concurrence of the Deputy Director of ICE or Deputy Commissioner of CPB, except in exigent
circumstances such as a medical emergency when seeking prior parole is not practicable; or (6) when
person establishes “credible fear” and affirmatively establishes to ICE her identity, that she presents
neither a security risk or risk of absconding, and complies with any additional conditions of release to
ensure public safety and appearance at a removal hearing. EO 13767 Sect. 11(d) (Jan. 25, 2017), 82 FR
8793, 8796 (Jan. 30, 2017); Memo, Kelly, Sec. DHS, Implementing the President’s Border Security and
Immigration Enforcement Improvements Policies (Feb. 20, 2017), at ¶A, pp.2-3, AILA Doc. No. 17021831;
Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s Border Security and Interior
Immigration Enforcement Policies (Feb. 21, 2017), ¶B, AILA Doc. No. 17070730. Under current
regulations, DHS may parole a person who: (i) has a serious medical condition where continued detention
would not be appropriate; (ii) is medically certified as pregnant; (iii) is a juvenile; (iv) is a witness in a
proceeding; or (v) continued detention would not be in the public interest. 8 CFR §212.5(b).Although ICE
Directive 11002.1, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of
Persecution or Torture (Dec. 8, 2009), AILA Doc. No. 09121760 is still in effect, “ERO officers should
process requests for parole or other release sparingly, and only in individual cases where, after careful
consideration of the circumstances, the officer believes that the release would serve the best interests of
the United States because of demonstrated urgent humanitarian reasons or significant public benefit.”
Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s Border Security and Interior
Immigration Enforcement Policies (Feb. 21, 2017), ¶C, AILA Doc. No. 17070730. In addition, the
presumption against detaining pregnant women has changed and is no longer in effect. ICE, Directive
11032.3 Identification and Monitoring of Pregnant Detainees (Dec. 14, 2017), AILA Doc. No. 18032931.
ICE, FAQs, Identification and Monitoring of Pregnant Detainees (Mar. 30, 2018), AILA Doc. No. 18033060
[“ICE has ended the presumption of release for all pregnant detainees”].To establish parole a person
determined to have a credible fear may present a passport, national ID card, birth certificate or affidavit to
establish identity; an affidavit from a person or community organization that will support him while
released and letters from community members to establish a lack of flight risk; and affidavits attesting to
rehabilitation if there are previous criminal problems to establish lack of danger to the community. See ICE
Form 71-012 [Parole Advisal and Scheduling Notification]. See also in this section ¶ M.11.c (p.238), infra.
ICE may not use deterrence of others when considering release. R.I.L-R v. Johnson, 80 F.Supp.3d 164,
186-91 (D.D.C. 2015) [preliminary injunctive relief granted to class of mothers with minor children from
Honduras, Guatemala and El Salvador who established credible fear but were kept in detention while
asylum claims were being processed because of ICE’s deterrence policy]. In addition, if a credible fear is
found, the applicant, unless a stowaway, is put in an INA §240 proceeding, where she is eligible for a
bond hearing if she is not an arriving alien or otherwise ineligible under 8 CFR §1003.19(h)(2)(i). See
Matter of X-K-, 23 I&N Dec. 731 (BIA 2005) [current DHS regulations do not bar IJ from making custody
determinations of person subject to expedited removal if they are determined to have a credible fear and
placed in an INA §240 Page 228 proceeding, and if a bond hearing is not otherwise precluded by 8 CFR
§1003.19(h)(2)(i)]. Legislative history at H.R. Conf. Rep. No. 104-828 at 209 (1996) supports this view. A
person in expedited removal is generally not entitled to a bond hearing under the statute, irrespective of
the length of detention, except under the above exceptions, see e.g., Jennings v. Rodriguez, 583 U.S. __,
138 S.Ct. 830 (2018) [neither INA §235(b)(1) nor (b)(2) can be plausibly read to place a 6-month limit on
detention; remanded for an analysis of constitutional and class claims]; Perez v. Aviles, 188 F.Supp.3d
328 (S.D.N.Y. 2016) [no time limit on detention and where LPR detained for a number of years due to his
own appeals, his detention is not arbitrary or unreasonable]; Cardona v. Nalls-Castillo, 177 F.Supp.3d 815
(S.D.N.Y. 2016) [bond hearing not permitted under INA §235(b)]. But there may be a constitutional claim
after prolonged detention without parole.Garza-Garcia v. Moore, 539 F.Supp.2d 899 (S.D. Tex. 2007)
[refusing to apply the Matter of Josephhearing to an “arriving alien” subject to mandatory detention is
unconstitutional under Demore v. Kim because Demore was not limited to detained persons who were not
arriving aliens]. DHS’s criteria for parole of persons who pass the credible-fear interview are published at
ICE Directive No. 7-1.0 (Dec. 8, 2009), AILA Doc. No. 09121760.
4.b. Right to Notice of One-Year Deadline to File for Asylum—A person who is determined to have a
credible fear and is released or a person who expresses a fear and is eventually released from custody
must be given notice of the one-year deadline for filing an asylum claim. In addition, USCIS must establish
a procedure for accepting that application even if the NTA has not been filed with the court. Mendez Rojas
v. Johnson, No. C16-1024 RSM, 2018 WL 1532715 (W.D. Wash. Mar. 29, 2018) [finding due process
notice and INA violations for not providing notice to class members].
4.c. “Catch and Release” Policy—EO 13767 Sect. 6 (Jan. 25, 2017), 82 FR 8793, 8795 (Jan. 30, 2017),
Memo, Kelly, Sec. DHS, Implementing the President’s Border Security and Immigration Enforcement
Improvements Policies (Feb. 20, 2017), AILA Doc. No. 17021831; Memo, Albance, ICE Ex. Assoc.
Director, Implementing the President’s Border Security and Interior Immigration Enforcement Policies
(Feb. 21, 2017), ¶B, AILA Doc. No. 17070730. Under a new policy expressed in EOs and DHS memos,
the goal under the “catch and release” banner is a concerted effort to increase incarceration, not release
anyone at the border or interior by expanding detention facilities, to increase USCIS officers to do credible
fear interviews, to pressure USCIS officers by maintaining statistics on how many credible fear
determinations they grant, and to pressure other countries to take their citizens back expeditiously.
Presidential Memo, White House, Ending Catch and Release (Apr. 6, 2018), 83 FR 16179 (Apr. 13, 2018).
5. Return to Contiguous Countries—INA §235(b)(2)(C) permits the return of a person arriving from a foreign
contiguous territory to be returned to that country pending a formal removal proceeding under INA §240. EO
13767 Sect. 7 (Jan. 25, 2017), 82 FR 8793, 8796 (Jan. 30, 2017); Memo, Kelly, Sec. DHS, Implementing the
President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), at ¶¶ A,
p.3, H, p.7, AILA Doc. No. 17021831[encouraging return to save costs and directing a teleconference
mechanism to hold removal hearing for person out of U.S.]; Fact Sheet, DHS, Executive Order: Border
Security and Immigration Enforcement Improvements (Feb. 21, 2017), reprinted in 94 No. 9 Interpreter
Releases Art. 1, Appx II, p.32-35 (Feb. 27, 2017); Q&As;, DHS Implementation of the Executive Order on
Border Security and Immigration Enforcement (Feb. 21, 2017), Q.29, AILA Doc. No. 17022171.
6. Bar to Cancellation—A person who departed the U.S. and was removed through expedited removal severs
continuous residence for non-LPR cancellation purposes. Juarez-Ramos v. Gonzales, 485 F.3d 509 (9th Cir.
2007).
7. Administrative Review—There is no administrative review of an expedited removal order except for a

person who claims under penalty of perjury to have been lawfully admitted for permanent residence, to have
been admitted as a refugee under INA §207, to have been granted asylum under INA §208 or to be a USC. A
person who claims to be an LPR, refugee, asylee, or USC and the claim is not recognized by the immigration
officer, the officer will enter an expedited removal order. 8 CFR §§235.3(b)(5), 235.6(a)(2)(ii). The person
may then appear before an IJ. 8 CFR §1235.3(b)(5)(iv). If the IJ determines that the person is not an LPR,
refugee, asylee, or USC, he shall affirm the order and there is no administrative appeal. If the IJ determines
that the person falls under one of these categories, he shall terminate proceedings and vacate the expedited
order of Page 229 removal. Id. The immigration officer may then initiate removal proceedings, unless the IJ
has found the person is a USC. The BIA has no jurisdiction to review an IJ order terminating proceedings and
vacating the expedited removal order based upon U.S. citizenship. Matter of Lujan-Quintana, 25 I&N Dec. 53
(BIA 2009).
8. Judicial Review [INA §242(e)]
8.a. Declaratory, injunctive, or other equitable relief except as authorized below may no longer be
authorized.
8.b. No class action litigation.
8.c. Habeas corpus review but only to determine whether: (1) petitioner is an alien; (2) petitioner was
ordered removed under such section; and (3) petitioner is an LPR, or was granted refugee or asylum
status. In determining whether the person has been ordered removed, the court’s inquiry is limited to
whether such an order was in fact issued and whether it relates to the petitioner. The court may not review
whether the person is inadmissible or entitled to relief. See e.g., Brumme v. INS, 275 F.3d 443 (5th Cir.
2001) [cannot review post–St. Cyr whether person subject to summary removal was admissible or entitled
to relief]. And they may not review the procedures or determinations regarding credible fear except as
provided in the statute. Castro v. DHS, 835 F.3d 422 (3d Cir. 2016) [Suspension Clause not violated
despite preclusion of review of substantive and procedural due process challenges to credible fear
determinations in expedited removal due to INA §§242(e)(2)(B), (e)(5)]. But see Smith v. CBP, 741 F.3d
1016 (9th Cir. 2014) [jurisdiction under INA §242(e)(2)(B), 8 USC §1252(e)(2)(B) to review whether
person was “ordered removed” where Canadian claimed that CBP exceeded its authority because he
could not be removed as an intending immigrant under 212(a)(7) as Canadians had no documentary
requirements]; Kabenga v. Holder, 76 F.Supp.3d 480 (S.D.N.Y. 2015) [granting stay and finding habeas
jurisdiction under INA §242(e)(2)(C) because respondent was previously admitted as an LPR and if his
merits argument prevails will still be an LPR]; American-Arab Anti-Discrimination Comm. v. Ashcroft, 272
F.Supp.2d 650 (E.D. Mich. 2003) [finding habeas jurisdiction to determine whether expedited removal was
lawfully applied to petitioner and where person was paroled into the U.S. it was inappropriate to apply
summary removal]. See also Matushkina v. Nielsen, 877 F.3d 289, 292-97 (7th Cir. 2017) [plaintiff had
standing to challenge CBP inadmissibility finding at the border but her case was dismissed because the
doctrine of consular nonreviewability bars plaintiff’s claim where the inadmissibility finding was the basis to
deny plaintiff her immigrant visa]. There is also a question whether the review provisions are
constitutionally sufficient to be used as a basis for a criminal prosecution. U.S. v. Barajas-Alvarado, 655
F.3d 1077, 1087 (9th Cir. 2011) [holding that 8 USC §1225(b)(1)(D) is unconstitutional to the extent it does
not permit some meaningful review of the expedited removal proceeding for purposes of a prosecution
under 8 USC §1326]. For a more detailed discussion on the lack of federal court jurisdiction, see
“Restrictions Under INA §242” in Chapter 10, ¶ I.C.1 (p.1799), infra.
8.d. Judicial review may be brought as to whether any section of the expedited removal statute or regulation
implementing the section is constitutional or whether any regulation or written policy, directive, or guideline
written by or under the authority of DHS is consistent with the INA and not otherwise violative of law. Such
an action may only be brought in the U.S. district court for the District of Columbia and must be brought
within 60 days of the implementation of the section, regulation, directive, or guideline that is being
challenged. The action must be handled expeditiously by the circuit court and the Supreme Court and the
Court’s remedial power is limited exclusively to requiring that the person be given a hearing under INA
§240. But see U.S. v. Barajas-Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011) supra.
8.e. No Petition for Review—Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 816–19 (9th Cir. 2004) [statute
does not permit review of summary removal through a petition for review]. For a more extensive
discussion on judicial review see Ch. 10, ¶ I.A.1 (p.1789), infra.
9. Stay of Removal—The AG has the authority to stay the removal of a person whose removal is not
practicable or proper or who is needed as a witness in a prosecution. The AG may release a witness on bond
during the stay. INA §241(c)(2), 8 USC §1231(c)(2). Zardui-Quintana v. Richard, 768 F.2d 1213 (11th Cir.
1985) [DD, as distinguished from IJ, can grant stay]. Page 230
E. Removal of Suspected Terrorists and Foreign Policy or Security Threats—INA §235(c), 8 USC §1225(c), 8
CFR §§235.8, 1235.8. If an immigration officer at the border or an IJ suspects that a person arriving in the U.S.
is a terrorist or security or foreign policy threat under INA §212(a)(3)(A) (except section ii), (B), or (C), the IJ or
IO shall order the person’s removal without further inquiry and shall refer the case to the AG for review. The AG
shall review the removal order, and may order the person removed without a hearing if satisfied on the basis of
confidential information and after checking with appropriate security agencies that the person is inadmissible on
terrorist, security or foreign policy grounds. The person or his representative may only submit a written
statement and additional information for consideration by the AG. The legislative history states that this section
merely restates existing law and does not apply to persons inadmissible under INA §212(a)(6)(A) because they
are EWI. H.R. Conf. Rep. 104-828, 104th Cong. 2d Sess. at 210. A returning LPR may not be subject to
summary removal even if DHS invokes security concerns. Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989);
Rafeedie v. INS, 795 F.Supp. 13 (D.D.C. 1992). A person subject to a final order under INA §235(c) may
nevertheless seek an interview before DHS on a claim under the Convention Against Torture. 8 CFR
§§208.18(d), 1208.18(d).
F. Stowaways—INA §235(a)(2), 8 USC §1225(a)(2). Stowaways are not eligible for admission or a hearing under
INA §240 and shall be removed unless they claim asylum, withholding, or CAT relief, and can establish a
credible fear of persecution. 8 CFR §§208.30, 1208.30.
G. Other Removal Where Admissibility is Challenged at the Border [INA §235(b)(2)(A), 8 USC §1225(b)(2)(A)]
1. Persons Not Subject to Expedited Removal—A person who does not fall under expedited removal
procedures is entitled to a removal proceeding under INA §240. This section treats applicants for admission
and persons subject to deportation identical in many respects, but makes a distinction between the burden of
proof for an applicant for admission and someone who is subject to grounds of deportation. INA §240(c)(2).
Altamirano v. Gonzales, 427 F.3d 586, 590–91 (9th Cir. 2005) [person paroled into U.S. under §212(d)(5)(A)
had the burden to prove admissibility]. LPRs, however, if treated as applicants for admission, are still entitled
to due process protections. Landon v. Plasencia, 459 U.S. 21 (1982).
2. Land Arrivals from Contiguous Territories—A person who arrives on land (whether or not at a designated
port of arrival) from a foreign territory contiguous to the U.S., may be returned to that territory pending a
proceeding under INA §240.
3. Detention—A person detained under this provision is eligible for a bond hearing if subject to prolonged
detention. Bautista v. Sabol, 862 F.Supp.2d 375 (M.D. Pa. 2012) [government ordered to grant bond hearing
after 26 months of incarceration]. For a more thorough discussion regarding bond, see in this chapter Section
IV.M (p.233), infra, and Section X.M (p.482), infra.
H. Waiver of Documentary Requirements—Where the applicant’s documents are deficient for a variety of
reasons including the wrong visa or an invalid visa under INA §222(g) because of previous overstay, he may be
granted a waiver by filing a Form I-193 at the POE. See in this Chapter ¶ III.J.8 (p.204), supra, for a discussion
of waivers under INA §212(d)(4).
I. Deferred Inspection
1. Generally—There are primary, secondary, and deferred inspections. Primary inspection is the initial
inspection at an airport or seaport. Secondary inspection at an airport or seaport occurs when the person is
pulled from the line for further questioning. Deferred inspection is a form of parole. 8 CFR §§235.2, 1235.2.
At a deferred inspection, as in a primary and secondary inspection, the officer may decide to admit the alien,
to continue his parole, to permit him to withdraw his application for admission, or to detain him for removal. At
any time during primary, secondary or deferred inspection any officer may challenge the decision of any other
officer to admit a person. If such challenge occurs the person must appear before an IJ. INA §235(b)(3).
2. Representation—The right to counsel extends to DHS as a regulatory matter. 8 CFR §292.5(b). The right to
representation extends to whenever “an examination is provided for in this chapter.” Under the regulation
counsel “shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence,
to make objections which shall be stated succinctly and entered on the record and to submit briefs.” Persons
in deferred inspection are allowed counsel because the regulation Page 231 only prohibits counsel from
primary and secondary inspections and only if the person has not become “the focus of a criminal
investigation and … taken into custody.” CBP, however, takes the position that deferred inspection is merely a
continuation of a secondary inspection and that counsel’s role is limited to being “an observer and consultant
to the applicant. The attorney should not be allowed to direct the questioning or answer for the applicant.”
Memo, Ahern, Asst. Comm., Field Operations, CBP, Man-1-FO:PO CM, (July 30, 2003), AILA Doc. No.
15102661. But, the right to counsel in adjudicatory proceeding also arises from section 555(b) of the APA.
DHS guidelines do not permit counsel at primary or secondary inspections, although a relative, friend, or
representative may have access to the “inspection area to provide assistance when the situation warrants
such action.”IFM at 2.9. See also Gonzaga-Ortega v. Holder, 736 F.3d 795, 801-04 (9th Cir. 2013) [returning
LPR treated as arriving alien had no right to counsel at secondary inspection]. Inconsistent with the
regulations, the IFM states that in a deferred inspection, “an attorney may be allowed to be present upon
request if the supervisory inspector on duty deems it appropriate. The role of the attorney in such a situation
is limited to that of observer and consultant to the applicant.”IFM at 17.1(e). USCIS has also determined that
counsel is not permitted at refugee interviews abroad. AFM at 12.1 n.2 [refugee applicants do not have the
right to representation]. In matters other than a primary or secondary inspection and refugee processing
abroad, an officer “should allow an alien to seek counsel to the extent that doing so does not hinder or unduly
delay the adjudicative process.”AFM at 12.1. Whether or not DHS permits counsel at a deferred inspection,
the regulation, section 555(b) of the APA, and general principles of due process always permit
representation.
3. Criteria for Granting—The criteria used to determine whether to defer inspection include: (a) the likelihood
of admissibility; (b) the type of documents needed and the ability to obtain them; (c) the good faith effort of
the applicant to obtain documents prior to arrival at the port-of-entry; (d) verification of applicant’s identity and
nationality; (e) age, health, and family ties of applicant; (f) other humanitarian considerations; (g) likelihood
that applicant would appear at deferred inspection; (h) the nature of the ground of inadmissibility; and (i) the
danger to society if applicant paroled. Memo, Williams, Ex. Assoc. Comm. Field Operations, HQINS 70/10.10
(May 18, 2002), AILA Doc. No. 02053134 (May 31, 2002); IFM at 17.1(a).
4. Failure to Appear—If the applicant fails to appear at a deferred inspection, an NTA is issued to the address
he or she provided, and a lookout is posted on the NAILS system. IFM at 17.1(d).
J. Parole
1. Generally—The alien may be paroled into the U.S. for “urgent humanitarian reasons” or where a grant would
result in a “significant public benefit.” INA §212(d)(5)(A), 8 USC §1182(d)(5)(A). The standard prior to IIRIRA
was for “emergent reasons” or “reasons deemed strictly in the public interest.” An alien “shall be detained” if
there is a question as to his admissibility. INA §235(b)(2), 8 USC §1225(b)(2). The “shall be detained”
language does not require incarceration. Louis v. Nelson, 544 F.Supp. 973 (S.D. Fla. 1982). Similarly, the BIA
has interpreted the “shall be detained” language not as incarceration, but as the means to place someone in
proceedings. Matter of H-, 20 I&N Dec. 611 (BIA 1992). Because a person who enters EWI is now
considered an applicant for admission under INA §235(a)(1), 8 USC §1225(a)(1) who is inadmissible under
INA §212(a)(6)(A)(i), 8 USC §1182(a)(6)(A)(i), she may be paroled into the U.S. even if she does not meet
the definition of an “arriving alien” under 8 CFR §§1.2, 1001.1(q). Memo, Virtue, G.C. to Field (HQCOU
120/17-P) (Aug. 21, 1998), AILA Doc. No. 98082191. In the aftermath of Sept. 11, 2001, legacy INS issued
directives that limited parole. Memo, Pearson, Ex. Assoc. Comm. Field Operations, HQINS 70/10.10 (Nov.
14, 2001), reprinted in 79 No. 2 Interpreter Releases 36, 59–60 (Jan. 7, 2002). Today, parole criteria are
being strictly construed. See in this part “Detention and Parole,” ¶ D.4 (p.227), supra. EO 13767 Sect.11(d)
(Jan. 25, 2017), 82 FR 8793, 8796 (Jan. 30, 2017); Memo, Kelly, Sec. DHS, Implementing the President’s
Border Security and Immigration Enforcement Improvements Policies (Feb. 20, 2017), at ¶A, pp.2-3, AILA
Doc. No. 17021831Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s Border Security
and Interior Immigration Enforcement Policies (Feb. 21, 2017), ¶C, AILA Doc. No. 17070730. ICE Directive
11002.1, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or
Torture (Dec. 8, 2009), AILA Doc. No. 09121760. Page 232
A person paroled into the U.S. is eligible for AOS (“inspected and admitted or paroled” under INA §245(a))
unless he is otherwise ineligible (e.g., out of status) or otherwise barred (e.g., person with approved I-140
petition because she can only adjust under INA §245(c)(7) if entered in lawful nonimmigrant status and not
parole]. The Department of Homeland Security coordinates through USCIS, ICE and CBP a variety of parole
programs including: (1) Urgent medical, family, and related needs; (2) Moscow Refugee Parole Program; (3)
Several Cuban Parole Programs (although the Cuban Medical Professional Parole program has been
eliminated, Joint Statement, Governments of Cuba and the United States (Jan. 12, 2017), AILA Doc. No.
17011300; Press Release, Johnson, DHS Sec., Statement by Sec. Johnson on the Continued Normalization
of Our Migration Relationship with Cuba (Jan. 12, 2017), AILA Doc. No. 17011309; DHS Fact Sheet:
Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals (Jan. 12, 2017), AILA Doc.
No. 17011361); (4) Parole for participation in administrative, judicial or legislative proceedings or
investigations including confidential informants, persons involved in extradition and persons involved in civil
proceedings; (5) Section 7 paroles under 50 USC §403h (granting residency for national security reasons);
(6) Trainees; (7) Intelligence purposes; (8) In Transit Persons; and (9) Participants in events hosted by
international organizations. MOA between USCIS, ICE & CBP, Coordinating the Concurrent Exercise by
USCIS, ICE, and CBP of the Secretary’s Parole Authority Under INA §212(d)(5)(A) (Sept. 2008), reprinted in
17 Bender’s Immigr. Bull. 938, 945-51 (Apr. 1, 2012).
2. Parole-in-Place—DHS may also use its parole authority to grant someone physically in the U.S. parole-in-
place thereby providing them the opportunity if EWI to AOS. For a more detailed discussion of parole-in-
place, see in this chapter Section I.D (p.70), supra.
K. Withdrawal of Application—An alien may be encouraged to withdraw the application for admission.
Withdrawal is available at initial inspection, deferred inspection, or even during or near the conclusion of a
hearing to determine admissibility. INA §235(a)(4); 8 CFR §§235.4, 1235.4, 1240.1(d). Inspecting officers at the
border may not engage in a practice designed to extract waivers. Hernandez v. Casillas, 520 F.Supp. 389 (S.D.
Tex. 1981).
1. Criteria—Criteria for CBP officers at the border permitting withdrawal include:
Seriousness of the immigration violation;

Previous findings of inadmissibility against the applicant;
Intent of person to violate the law;
Ability to overcome the ground of inadmissibility (e.g., lack of documents);
Age or poor health of applicant;
Other humanitarian or public interest considerations;
Visa invalid because of unknowing violation of §222(g).
CBP, Exercise of Discretion vs. Prosecutorial Discretion, AILA Doc. No. 14031849; Memo, Virtue, Exec.
Assoc. Comm., INS (Dec. 22, 1997), AILA Doc. No. 98122291. U.S. v. Barajas-Alvarado, 655 F.3d 1077,
1089-91 (9th Cir. 2011) [opining that given two previous expedited removal orders it was unlikely that CBP
would grant withdrawal].
2. Fraud—Withdrawal is not permitted where there is an obvious, deliberate fraud, but if someone “innocently
or through ignorance, misinformation or bad advice, obtained an inappropriate visa,” withdrawal should be
allowed.
3. Cancellation of Visa—If the application for admission is withdrawn, the person’s NIV can be cancelled by
consular or immigration officer. 22 CFR §41.122(h)(3). The Inspector’s Field Manual requires cancellation
and also requires a notification to the consular office issuing visa on Form I-275. IFM at 17.2.
4. Treatment by Consular Officer of CBP Notes in Withdrawal—A consular officer is not bound by a CBP
officer’s notes in determining admissibility (such as 212(a)(6)(C)(i)) when issuing an I-275 (application to
withdraw request for admission) at the border unless there has been a DHS CLASS determination. 9 FAM
403.10-2(B)(2)(b).
L. Voluntary Return— CBP uses voluntary return when it encounters an undocumented person when the person
is outbound. Voluntary Return may therefore be used when CBP encounters an overstay when Page 233 he is
departing the U.S., or an EWI with no criminal record traveling with children. CBP, Exercise of Discretion vs.
Prosecutorial Discretion, AILA Doc. No. 14031849. The misuse of voluntary return in Southern California has
resulted in a class settlement in Lopez-Venegas v. Johnson, No. 2:13-cv-03972-JAK-PLA (C.D. Cal. Aug. 18,
2014). The settlement requires inter alia training, more detailed procedures for voluntary returns in Southern
California, and the potential for the return of persons in Mexico subject to illegal practices.
https://aclusocal.org/pr-lopez-venegas. To qualify as a class member under Lopez-Venegas an individual must:
(1) have signed a voluntary return form between June 1, 2009 and Aug. 28, 2014 and been expelled to Mexico;
(2) have had certain reasonable claims to reside in the U.S. lawfully at the time the voluntary return was signed;
(3) has been processed by Border Patrol officers from the San Diego Sector or by ICE from the San Diego or LA
filed offices; and (4) be physically present in Mexico at the time of submission of application for class
membership. For more information see 92 No. 9 Interpreter Releases 362-63 (Mar. 2, 2015).
M. Detention of Inadmissible Persons; Bond
1. Overview—In general, a person stopped at the border and found inadmissible is deemed to have no
constitutional right to release. Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 210 (1953). Pursuant to
statute, however, such individuals are eligible for release on parole. INA §212(d)(5). Historically, parole was
exercised generously. But this changed in the 1980s in response to Haitian refugees arriving by boat. Louis v.
Nelson, 544 F.Supp. 973 (S.D. Fla. 1982) [finding the “shall be detained” language of former INA §235 to not
require incarceration]; Matter of H-, 20 I&N Dec. 611 (BIA 1992).
Prior to IIRIRA, “inadmissible” persons were placed in “exclusion” (as opposed to “deportation”) proceedings,
and were not eligible for release on bond, only parole. Unlike persons in deportation proceedings, who were
entitled to a bond hearing before an IJ, excludable persons were not entitled to IJ review of the DD’s parole
decision. IIRIRA §303 eliminated separate exclusion and deportation proceedings and created a single
removal proceeding under INA §240. In addition, IIRIRA created a “summary” or “expedited” removal
proceeding under INA §235(b) that allows an immigration officer, at the border and in the absence of an IJ, to
make a determination as to a person’s admissibility. For persons placed in INA §240 removal proceedings (in
contrast to INA §235(b) expedited proceedings), there is no longer a statutory distinction between
inadmissible and deportable persons in terms of bond eligibility under INA §236. This makes sense in that
most persons who were traditionally detained as excludable will now be placed in expedited removal
proceedings under INA §235(b) and will continue to be ineligible for bond and eligible for parole only under
limited circumstances.
ICE, however, has taken the position that only those inadmissible persons who are apprehended in the U.S.
are eligible for bond. Those who are apprehended at the border (also described as “arriving aliens,” as
defined under 8 CFR §1.2) are ineligible for bond even if they are subsequently placed in a §240 proceeding.
They may be eligible for parole under INA §212(d)(5), but parole may only be granted by ICE, not an IJ.
Moreover, DOJ regulations specifically divest the IJ of jurisdiction to review custody determinations for
arriving aliens. 8 CFR §§1003.19(h)(2)(i)(B), 236.1(c)(11), 1236.1(c)(11); Matter of Oseiwusu, 22 I&N Dec. 19
(BIA 1998) [under Transition Period Custody Rules (TPCR)]. Nor may an applicant subject to prolonged
detention seek a bond hearing based upon the statute’s construction. Jennings v. Rodriguez, 583 U.S. __,
138 S.Ct. 830 (2018) [INA §235(b), §236(a), and §236(c), cannot be plausibly read to include a prohibition
against prolonged detention (more than 6 months) and to include a requirement that the government must
provide by clear and convincing evidence that detention remains justified; remanded for an analysis of
constitutional and class claims]; But see Garza-Garcia v. Moore, 539 F.Supp.2d 899 (S.D. Tex. 2007) [found
government’s refusal to grant Matter of Josephhearing to an arriving alien subject to mandatory detention is
arriving aliens].
2. Detention of Inadmissible Arriving Aliens (Including Returning LPRs)
2.a. In General—An arriving alien, as defined under 8 CFR §§1.2, 1001.1(q), includes persons apprehended
at the border seeking admission even if paroled into the U.S., persons interdicted who are brought into the
U.S. even if they are not seeking admission, and those returning LPRs who are considered to be seeking
admission under INA §101(a)(13)(C). Thus, under the regulations that divest IJs of authority to
redetermine custody for “arriving aliens,” returning LPRs, who are deemed to be seeking admission by
virtue of INA §101(a)(13)(C), are not entitled to a bond hearing before an IJ. See, e.g., Jennings v.
Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018) Page 234 [INA §235(b)(1), (b)(2) cannot be plausibly read
to include a prohibition against prolonged detention (more than 6 months); remanded for an analysis of
constitutional and class claims]; Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997) [LPR is deemed
to be seeking admission upon return because of old conviction, notwithstanding brief casual and innocent
departure, and therefore is not entitled to IJ bond hearing; Fleuti doctrine deemed abandoned by IIRIRA];
Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003) [determining that Congress did abolish the Fleuti doctrine in
the passage of INA §101(a)(13)(C) for certain returning LPRs, and upholding Matter of Collado-Munozon
Chevron deference grounds]; Evangelista v. Ashcroft, 204 F.Supp.2d 405, 409–10 (E.D.N.Y. 2002) [due
process not violated because the decision to deny bail to a long-term LPR pending the outcome of his
merits hearing was made by the DD and not an IJ]; Ferraras v. Ashcroft, 160 F.Supp.2d 617 (S.D.N.Y.
2001) [returning LPR not entitled to bond hearing before IJ and INS regulatory scheme allowing paper
record before DD is not, post-Zadvydas, violative of due process or equal protection]. Cf. Zubeda v.
Elwood, 265 F.Supp.2d 509 (E.D. Pa. 2003) [inadmissible person detained during removal proceeding
had no due process right to a bond hearing before an IJ]. But see Vartelas v. Holder, 566 U.S. 257 (2012)
[finding that INA §101(a)(13)(C)(v) does not apply retroactively to a person who was convicted of a crime
prior to IIRIRA’s effective date thereby permitting the LPR to travel pursuant to Fleuti]. Accord Olatunji v.
Ashcroft, 387 F.3d 383, 388–96 (4th Cir. 2004)[IIRIRA’s change in the Fleuti doctrine could not be
retroactively applied to a person who pleaded guilty prior to its enactment]. See also Garza-Garcia v.
Moore, 539 F.Supp.2d 899 (S.D. Tex. 2007) [government’s refusal to grant Matter of Josephhearing to an
“arriving alien” subject to mandatory detention found unconstitutional under Demore v. Kim because
Demore was not limited to detained persons who were not arriving aliens]; Shahwan v. Chertoff, No. C-05-
4218 MMC (N.D. Cal. Dec. 12, 2005) [advance parolee treated as “arriving alien” could not be deprived of
bond hearing without advance notice under due process]. See also pre-Demore decisions holding that
returning LPRs had due process right to bond hearing. Ekekhor v. Aljets, 979 F.Supp. 640 (N.D. Ill. 1997)
(and cases cited therein) St. John v. McElroy, 917 F.Supp. 243 (S.D.N.Y. 1996); Hamaya v. McElroy, 797
F.Supp. 186 (E.D.N.Y. 1992); Cruz-Taveras v. McElroy, No. 96 C.V.5068 (M.M.) (S.D.N.Y. Aug. 12, 1996)
Cf. Cabreja-Rojas v. Reno, 999 F.Supp. 493 (S.D.N.Y. 1998) [LPR with final administrative removal order
entitled to a custody hearing before an independent IJ, not the INS].
2.b. Bail by Circuit Court—At least one circuit court has determined it has the inherent authority to grant
bond while a petition for review is pending where petitioner has presented a substantial claim and there
are extraordinary circumstances that make the grant of bail necessary to make the petition for review
remedy effective. Elkimya v. DHS, 484 F.3d 151 (2d Cir. 2007) [finding authority to grant bail pending
resolution of a petition for review of returning LPR who had been out of the U.S. for 4 years, but finding no
extraordinary circumstances permitting bail]; Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001) [district courts
have inherent authority to grant bail while habeas petition is pending where to do so is “necessary to
make the habeas remedy effective”]; but see Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007) [admitting a
person to bail while challenging admission is contrary to the INA and the inherent authority to admit
persons to bail does not extend to persons deemed inadmissible at the border].ICE may not use
deterrence of others when considering release.
2.c. Parole by ICE—An arriving alien who is ineligible for bond, may seek release on parole before ICE,
which maintains the right to consider parole for LPRs, CRs, or temporary residents who are not subject to
mandatory detention, or persons who establish a credible fear of persecution or torture. 8 CFR §212.5.
See also ICE Directive 11002.1, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a
Credible Fear of Persecution or Torture (Dec. 8, 2009), AILA Doc. No. 09121760; ICE Directive 7-1.0,
Myers, Asst. Secy. (Nov. 6, 2007), AILA Doc. No. 07111264 [procedure and criteria for parole in credible
fear cases]; Memo, Reed, Acting Ex. Assoc. Comm. Field Operations (Oct. 22, 1997), AILA Doc. No.
97103190. ICE may not use deterrence of others when considering release. For a more detailed
discussion of parole, see in this part ¶ J.1 (p.231), supra, ¶ D.4 (p.227), supra, and ¶ M.11 (p.237), infra.
Page 235
3. Detention of Inadmissible Persons Who Are Not Arriving Aliens and Who Are Not Subject to
Mandatory Detention on Criminal Grounds or Terrorism
For persons who are not considered arriving aliens or who have not committed an offense under INA §212(a)
(2) or INA §212(a)(3)(B), the AG may grant bond or release individuals on “conditional parole” pursuant to
INA §236(a). Although a person who enters EWI is considered an applicant for admission under INA §235(a)
(1) and inadmissible under INA §212(a)(6)(A)(i), because they are not apprehended at the border, they do
not fall within the definition of “arriving aliens” under 8 CFR §§1.2, 1001.1(q). Therefore, an IJ is not
precluded from conducting a bond hearing. DHS may also grant them “conditional release” or “conditional
parole” governed by INA §236(a)(2) which, in their view, is not a parole under 212(d)(5)(A). Coldebella, Office
of Gen. Counsel, DHS, Clarification of the Relation Between Release under Section 236 and Parole under
Section 212(d)(5) of the INA (Sept. 28, 2007), AILA Doc. No. 07121790. The Board agrees. Matter of
Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) [a person released from custody under conditional parole is not
paroled under INA §212(d)(5) for purposes of AOS]. See in this chapter “Conditional Parole,” Section X.O
(p.494), infra.
Pursuant to INA §236(a), the IJ may grant bond in the minimum amount of $1,500, but work authorization is
not permitted unless he is an LPR or would have otherwise obtained an EAD. A bond hearing can be held
even if charging documents have not been filed with the immigration court. 8 CFR §1003.14(a). The AG may
revoke bond at any time, INA §236(b), although the setting and revocation of bond is subject to BIA review.
See 8 CFR §§236.1(d)(3), 1003.19(f), 1003.38, 1236.1(d). DHS may obtain an automatic stay of an IJ’s bond
order by filing an EOIR-43 where the DD denied bond or set bond at $10,000 or more and the IJ authorized
release on bond. The EOIR-43 must be filed within one business day of the IJ’s order. 8 CFR §1003.19(i)(2).
Thereafter, DHS must file a notice of appeal consistent with §1003.38 to the BIA within 10 days of the IJ’s
decision or the stay will lapse. To preserve the stay, the notice of appeal must be accompanied by a
certification from a senior legal official that she has approved the filing of the notice of appeal and is satisfied
that the contentions justifying continued detention have evidentiary support and that the legal arguments are
warranted by existing law or by a nonfrivolous argument for extension of the law. 8 CFR §1003.6(c)(1). Once
the notice of appeal is filed the IJ has 5 days to issue a written bond decision but may, in exigent
circumstances, obtain an additional 5 days. 8 CFR §1003.6(c)(2). If the BIA has not acted on the custody
appeal within 90 days, the automatic stay “shall” lapse. However, if the BIA grants a motion by the detainee
to enlarge the time for submitting his brief, the 90 days are tolled. 8 CFR §1003.6(c)(4). In addition, if the stay
will lapse, DHS may seek a discretionary stay. 8 CFR §1003.6(c)(5). If the BIA ultimately rules against DHS
in its bond appeal, the release order is automatically stayed for 5 days to allow DHS to seek AG review. 8
CFR §1003.6(d). See also Memo [Interim OPPM 06-03], Neal, Chief IJ (Oct. 31, 2006), AILA Doc. No.
06110264. The provision has been found to be unconstitutional, although these decisions were all prior to the
regulation’s revision in 2006 to include the 90-day lapse provision. Uritsky v. Ridge, 286 F.Supp.2d 842 (E.D.
Mich. 2003); Bezmen v. Ashcroft, 245 F.Supp.2d 446 (D. Conn. 2003). Accord Zabadi v. Chertoff, No. C 05-
01796 WHA, 2005 WL 1514122 (N.D. Cal. June 17, 2005) and 2005 WL 3157377 (N.D. Cal. Nov. 22, 2005);
Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. 2004); Ashley v. Ridge, 288 F.Supp.2d 662 (D.N.J. 2003)
[automatic-stay provision violates substantive and procedural due process for person not subject to
mandatory detention and not a national security threat]. But see Pisciotta v. Ashcroft, 311 F.Supp.2d 445,
453–56 (D.N.J. 2004) [stay provision is not unconstitutional under Demore v. Kim].
ICE detention prioritization changed in 2017. The Priority Enforcement Program (“PEP”) has been terminated
and the corresponding memo regarding enforcement Memo, Johnson, Sec. DHS, Policies for the
Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), AILA Doc. No.
14112004 have been rescinded and the Secure Communities Program has been reinstated. EO 13768,
Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), Sects. 5, 10, 82 FR 8799-8803
(Jan. 30, 2017) Memo, Kelly, Sec. DHS, Enforcement of the Immigration Laws to Serve the National Interest
(Feb. 20, 2017), ¶¶A-B, pp. 2-3, AILA Doc. No. 17021830[ending the Priority Enforcement Program and re-
establishing the Secure Communities program and rescinding the Johnson Memo that created the Priority
Enforcement Program]; http://www.ice.gov/secure-communities. The new priorities for the detention and
removal of persons are those who are “aliens described” in INA §§212(a)(2), (a)(3), (a)(6)(C), 235, 237(a)(2),
(a)(4) as well as removable persons who: (1) have been convicted of any criminal offense; (2) have been
charged with any criminal offense that has not been resolved; (3) have committed acts that constitute a
chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any
official matter before a government agency; (5) have abused any Page 236 program related to receipt of
public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to
depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public
safety or national security. EO 13768, supra at Sect. 5; Kelly, supra at ¶A p.2. To abuse “any program related
to receipt of public benefits” the person had to “knowingly defraud[ ] the government or a public benefit
system.” Q&A;, DHS, Implementation of the Executive Order on Enhancing Public Safety in the Interior of the
United States (Feb. 21, 2017), Q.18, AILA Doc. No. 17022130. However, “the Department no longer will
exempt classes or categories of removable aliens from potential enforcement.” Kelly, supra at ¶A, p.2.
The presumption against detaining pregnant women has changed and is no longer in effect. ICE, Directive
11032.3 Identification and Monitoring of Pregnant Detainees (Dec. 14, 2017), AILA Doc. No. 18032931. ICE,
FAQs, Identification and Monitoring of Pregnant Detainees (Mar. 30, 2018), AILA Doc. No. 18033060[“ICE
has ended the presumption of release for all pregnant detainees”].
For the applicable law governing the standards for bond, e.g., Matter of Patel, 15 I&N Dec. 666 (BIA 1976),
see in this chapter “Detention,” Section X.L (p.479), infra.
The law also seeks to prohibit judicial review of the AG’s discretionary decisions regarding bond and parole.
INA §236(e). See in this section “Judicial Review of Detention Decisions,” ¶ 12 (p. 239), infra.
4. Detention of Inadmissible Persons Who Are Not Arriving Aliens but Who Are Placed in Expedited
Removal—Pursuant to its authority under INA §235(b)(1)(A)(iii)(II) DHS has begun applying expedited
removal to persons who entered the United States without inspection (EWIs) and who have been present for
less than 14 days. DHS has taken the position that because these persons were placed in expedited
removal, they were ineligible for IJ bond hearings even when they passed the credible fear screening and
were referred for a §240 hearing. The BIA rejected this argument in Matter of X-K-, 23 I&N Dec. 731 (BIA
2005) [current DHS regulations do not bar the IJ from making custody determinations of person subject to
expedited removal if they have a credible fear and are placed in INA §240 proceedings, and a bond hearing
is not otherwise precluded by 8 CFR §1003.19(h)(2)(i). Legislative history at H.R. Conf. Rep. No. 104-828 at
209 (1996) supports this view].
5. Mandatory Detention of Persons Inadmissible on Criminal or Terrorism Grounds under INA §236(c)—
See in this chapter Section X.R (p.502), infra.
6. Challenge by Returning LPRs to Mandatory or Nonmandatory Detention—In light of Demore v. Kim, 538
U.S. 510 (2003), and Jennings v. Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018) [INA §235(b), §236(a), and
§236(c), cannot be plausibly read to include a prohibition against prolonged detention (more than 6 months)
and to include a requirement that the government must provide by clear and convincing evidence that
detention remains justified; remanded for an analysis of constitutional and class claims] challenges to
prolonged detention are clearly more difficult. For discussion setting forth pre- and post-Demore cases, see in
this chapter ¶ X.R.2.e (p.504), infra. Although Demore, was limited by subsequent decision refusing to apply
it to cases of prolonged detention, Jennings appears to have precluded such challenges while remanding for
constitutional review. Prior to Demore,federal courts entertained constitutional claims of returning LPRs.
Cabreja-Rojas v. Reno, 999 F.Supp. 493 (S.D.N.Y. 1998) [unconstitutional, under Eldridge, to deny returning
LPRs under TPCR a hearing before an independent IJ]. See also Straube v. Chertoff, 560 F.Supp.2d 983,
9866–88 (N.D. Cal. 2008) [following Nadarajah and Tijani in deportability case and ordering bond hearing
where person was in nonmandatory detention for 4 years under INA §236(a) during proceedings]; Ekekhor v.
Aljets, 979 F.Supp. 640 (N.D. Ill. 1997) (and cases cited therein); St. John v. McElroy, 917 F.Supp. 243
(S.D.N.Y. 1996); Cruz-Taveras v. McElroy, No. 96 C.V.5068 (M.M.), 1996 WL 455012 (S.D.N.Y. Aug. 12,
1996). But see Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003) [declining to address constitutional issue but
determining that Fleuti doctrine was abolished by INA §101(a)(13)(C) for certain returning LPRs]; Ferraras v.
Ashcroft, 160 F.Supp.2d 617 (S.D.N.Y. 2001) [returning LPR post-Zadvydas was not entitled under
constitution to more than a paper record before DD to determine release].
7. Mandatory Detention of Suspected Terrorists—INA §236A, 8 USC §1226a; USA PATRIOT Act, §412. The
AG/ICE is authorized to mandatorily detain any alien where there is reasonable grounds to believe he or she
is a person described under the inadmissibility provisions, INA §212(a)(3)(A)(i) [engage in espionage,
sabotage, or export control], §212(a)(3)(A)(iii) [opposition by violence or overthrow of U.S. government] or
§212(a)(3)(B) [terrorist activity]. For a more detailed discussion, see in this chapter “Mandatory Detention of
Suspected Terrorists,” Section X.S (p.510), infra. Page 237
8. Detention of Persons Subject to Expedited Removal [ 8 CFR §§235.3(b)(2)(iii), 1235.3(b)(2)(iii)]
8.a. A person subject to expedited removal shall be detained except if they meet certain parole exceptions
or have established a credible fear of persecution or torture. See in this part “Detention and Parole,” ¶ D.3
(p.226), supra.
8.b. “Arriving Aliens” vs. “Non–Arriving Aliens”—To the extent that expedited removal is applied to “arriving
aliens” as defined at 8 CFR §§1.2, 1001.1(q), regulations deprive an IJ of authority to review the DHS
custody determination. 8 CFR §1003.19(h)(2). However, under expanded expedited removal (as applied
to EWIs who have been present in the country for less than 2 years), the regulations do not prohibit an IJ
from reviewing custody determinations of those asylum seekers who establish a credible fear of
persecution and are referred to INA §240 removal proceedings. See Matter of X-K-, 23 I&N Dec. 731 (BIA
2005) [rejecting DHS position that IJ could not conduct bond hearings for EWIs placed in expedited
removal and later referred for §240 proceedings]. But see Jennings v. Rodriguez, 583 U.S. __, 138 S.Ct.
830 (2018) [INA §235(b), §236(a), and §236(c), cannot be plausibly read to include a prohibition against
prolonged detention (more than 6 months) and to include a requirement that the government must provide
by clear and convincing evidence that detention remains justified; remanded for an analysis of
constitutional and class claims]. But see Garza-Garcia v. Moore, 539 F.Supp.2d 899 (S.D. Tex. 2007)
[refused to provide Matter of Josephhearing to an “arriving alien” subject to mandatory detention found
arriving aliens].
9. Prolonged and Indefinite Detention of Inadmissible Persons Pending Removal Proceedings—The

Supreme Court in Jennings v. Rodriguez rejected the view of many lower courts that the INA should be read
to prohibit prolonged detention without a bond hearing. Jennings v. Rodriguez, 583 U.S. __ 138 S.Ct. 830
(2018) [INA §235(b), §236(a), and §236(c), cannot be plausibly read to include a prohibition against
prolonged detention (more than 6 months) and to include a requirement that the government must provide by
clear and convincing evidence that detention remains justified; remanded for an analysis of constitutional and
class claims]. See also cases cited in ¶ 12.c(12) (p.241), infra, in this section.
10. Indefinite Detention of Person Found Inadmissible Is Illegal—InClark v. Martinez, 543 U.S. 371 (2005)
the Court applied Zadvydas to Mariel Cubans and all inadmissible detainees, finding that as a matter of
statutory construction of INA §241(a)(6), inadmissible persons who could not be deported must be released
after 6 months.
11. ICE Parole
11.a. Generally—Although DHS regulations, 8 CFR §§236.1(c)(2), 1236.1(c)(2) (which appear contrary to
INA §236), preclude IJs from considering bond for arriving aliens, 8 CFR §§212.5(b), 235.1(d), 1235.1(d)
permits DHS to grant parole. A person who enters EWI is considered an applicant for admission under
INA §235(a)(1), 8 USC §1225(a)(1), who is inadmissible under INA §212(a)(6)(A)(i), 8 USC §1182(a)(6)
(A)(i), and may be paroled into the U.S. even if he does not meet the definition of an “arriving alien” under
8 CFR §§1.2, 1001.1(q). Memo, Virtue, G.C. to Field (HQCOU 120/17-P) (Aug. 21, 1998), AILA Doc. No.
98082191. But a release on bond of an “inadmissible alien” is no longer considered an exercise of the
parole authority under INA §212(d)(5)(A) but rather conditional release/parole under INA §236(a)(2).
Coldebella, Office of Gen. Counsel, DHS, Clarification of the Relation Between Release under Section
236 and Parole under Section 212(d)(5) of the INA (Sept. 28, 2007), AILA Doc. No. 07121790; Matter of
Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) [a person released from custody under conditional parole is
not paroled under INA §212(d)(5) for purposes of AOS]. Typically ICE now conducts a Risk Classification
Assessment (RCA) that seeks to identify and categorize the risk to public safety and the risk of flight
posed by a person arrested by ICE for immigration violations. The RCA is a classification system that
determines whether a person is a Low, Low/Medium, High/Medium or High risk and these categories will
not only determine the person’s custody status pending removal proceedings, but is also used to
determine appropriate security measures during housing and transportation. The RCA is now automated
and integrated into other ICE computer systems. DHS/ICE, PIA-015(d) for Enforcement Integrated
Database (EID), Risk Classification Assessment (RCA 1.0), ENFORCE Alien Removal Module (EARM
5.0) and Crime Entry Screen (CES 2.0) (Apr. 6, 2012), A person may be paroled if he or she: Page 238
has a “serious medical condition”;

has been medically certified as pregnant. The presumption against detaining pregnant women has
changed and is no longer in effect. ICE, Directive 11032.3 Identification and Monitoring of Pregnant
Detainees (Dec. 14, 2017), AILA Doc. No. 18032931. ICE, FAQs, Identification and Monitoring of
Pregnant Detainees (Mar. 30, 2018), AILA Doc. No. 18033060[“ICE has ended the presumption of
release for all pregnant detainees”];
is a juvenile;
has an immediate relative who is eligible to file and has filed an I-130 petition;
will be a witness in judicial, administrative, or legislative proceedings, see Gutierrez v. Ilchert, 682
F.Supp. 467 (N.D. Cal. 1988) [detainees should be paroled to present legalization application]; The
decision to parole someone into the U.S. to attend a civil proceeding is left to the discretion of DHS.
See e.g., U.S. v. Prevezon Holdings, Ltd., No. 13-cv-6326 (WHP) (S.D.N.Y. Nov. 3, 2017) [absent
“strong proof” that the government’s decision was made “irrationally or in bad faith” the court will
defer to the government];
is in detention that is not in the public interest as determined by the DD;
was granted asylum, withholding, or CAT before IJ and case on appeal [see below]; or
established a credible fear of persecution or torture [see below]
11.b. Persons granted asylum, withholding, or CAT before the IJ may be released pending DHS appeal.
Although under DHS regulations persons granted deferral of removal under CAT may remain in detention
[8 CFR §§208.17(b)(1)(ii), 1208.17(b)(1)(ii)], “in general, it is ICE policy to favor release of aliens who
have been granted protection relief by an immigration judge, absent exceptional concerns such as
national security issues or danger to the community and absent any requirement under law to detain.…
Arriving aliens should [also] be considered for parole.” Memo, Garcia, Asst. Sec. DHS (Feb. 9, 2004),
AILA Doc. No. 04022462; Accord Field Guidance Reminder, Mead, Exec. Assoc. Dir., ERO, ICE (Mar. 6,
2012), reprinted in 17 Bender’s Immigr. Bull. 976, 1040 (Apr. 15, 2012).
11.c. ICE Parole for Persons Who Establish a Credible Fear of Persecution or Torture—See in this part ¶
D.4 (p.227), supra;ICE Directive 11002.1, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have
a Credible Fear of Persecution or Torture (Dec. 8, 2009), AILA Doc. No. 09121760. If a person is
determined to have a credible fear, she shall be interviewed within 7 days and a written determination
shall be made within 7 days; thereafter the persons “should be paroled” if she can: (i) establish her
identity; (ii) demonstrate she is not a flight risk; (iii) demonstrate she is not a danger to the community; and
(iv) no other factors weigh against release such as adverse foreign policy consequences. ICE may not
use deterrence of others when considering release.
(1) Identity can be established through: (i) government documents; (ii) third party affidavits of people who
can establish their own identities through government issued documents; or (iii) other credible
statements.
(2) Flight risk factors include: (i) community and family ties; (ii) employment history; (iii) manner of entry
and length of residence in the U.S.; (iv) stability of residence in the U.S.; (v) record of appearance for
prior court hearings and compliance with past reporting requirements; (vi) prior immigration and
criminal history; (vii) ability to post bond; (viii) property ownership; and (ix) possible relief or protection
from removal. ICE officers can consider whether setting a bond, alternatives to detention, and a
combination of assurances would be sufficient.
(3) Danger to the community includes: (i) evidence of past criminal activity in the U.S. or abroad; (ii)
activity contrary to national security; (iii) activity giving rise to concerns of public safety or danger to the
community (including serious mental illness); (iv) disciplinary infractions or incident reports; or (v) any
criminal or detention history that demonstrates that the person is likely to harm himself or others. ICE
Directive 11002.1, Morton, supra ¶8.3.
(4) Procedure—ICE Directive 11002.1, Morton, supra, ¶¶8.1-8.12. Following a positive credible fear
determination: (i) DRO, “as soon as practicable” shall provide the arriving alien Page 239 with a Parole
Advisal and Scheduling Notification that notifies the person that he will be interviewed for potential
parole, the date of the notification, and the deadline for submission of documents. The notice shall be
explained in the person’s language; (ii) DRO shall interview the person within 7 days and provide a
written determination within 7 days thereafter; (iii) If the DRO denies parole, it should advise the
person that he or she may request a redetermination of the decision based upon changed
circumstances or additional evidence relevant to identity, flight risk or community danger. If the person
makes such a request in writing the FOD may reinterview the alien or consider the request based
“solely on documentary material already provided or otherwise of record.” ICE Directive 11002.1,
Morton supra ¶8.9; and (iv) If parole is granted a date-stamped parole document should be provided
stating parole is under 8 CFR §212.5(b) and that no employment authorization is provided.
Federal Action Requiring Enforcement of Parole Memo—Abdi v. Duke, 280 F.Supp.3d 373 (W.D.N.Y.
2017)—Court entered preliminary injunction for putative class of “all arriving asylum-seekers who have
passed a credible fear interview and who are or will be detained a Buffalo Federal Detention Facility
and who have not been granted parole.” The injunction ordered ICE to comply with the requirements of
ICE Directive 11002.1.
(5) Right to Notice of One-Year Deadline to File for Asylum—A person who is determined to have a
credible fear and is released or a person who expresses a fear and is eventually released from
custody must be given notice of the one-year deadline for filing an asylum claim. In addition, USCIS
must establish a procedure for accepting that application even if the NTA has not been filed with the
court. Mendez Rojas v. Johnson, No. C16-1024 RSM, 2018 WL 1532715 (W.D. Wash. Mar. 29, 2018)
[finding due process notice and INA violations for not providing notice to class members].
12. Judicial Review of Detention Decisions—For a discussion of judicial review of detention decisions post-
IIRIRA and whether review is possible, see in this chapter ¶ X.N.10 (p.491), infra. Questions on matters of
parole or policies on incarceration are not “political questions” immune from judicial scrutiny. Chiles v.
Thornburgh, 865 F.2d 1197, 1215–16 (11th Cir. 1988).
If there is jurisdiction, the standards for reviewing parole decisions are as follows:
12.a. Abuse of Discretion—Jean v. Nelson, 472 U.S. 846 (1985); Marczak v. Greene, 971 F.2d 510, 515–18
(10th Cir. 1992) [no practical difference between facially legitimate and abuse of discretion as both require
reference to the record]; Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) [finding no “facially
legitimate and bona fide” reason for denial of parole, and, hence, abuse of discretion]; Moret v. Karn, 746
F.2d 989 (3d Cir. 1984); Palma v. Verdeyen, 676 F.2d 100 (4th Cir. 1982); Ahrens v. Rojas, 292 F.2d 406
(5th Cir. 1961); Sakthinesan v. Smith, No. C90-529R (W.D. Wash. May 29, 1990), reported in 67 No. 30
Interpreter Releases 887 (Aug. 13, 1990) [finding DD abused his discretion by failing to release an asylum
applicant under “public interest provision” where he did not claim the applicant was a danger or likely to
abscond]; Soroa-Gonzalez v. Civiletti, 515 F.Supp. 1049, 1056–57 (N.D. Ga. 1981); Paktorovics v. Murff,
260 F.2d 610 (2d Cir. 1958); Conceiro v. Marks, 360 F.Supp. 454, 456–57 (S.D.N.Y. 1973); Kordic v.
Esperdy, 279 F.Supp. 880 (S.D.N.Y. 1967).
12.b. Facially Legitimate and Bona Fide—Garcia-Mir v. Smith, 766 F.2d 1478, 1485 (11th Cir. 1985)
[rejecting abuse of discretion standard for parole decisions]. See also Nadarajah v. Gonzales, 443 F.3d
1069 (9th Cir. 2006) [finding no facially legitimate reasons for denying parole]; Bertrand v. Sava, 684 F.2d
204 (2d Cir. 1982); Mason v. Brooks, 862 F.2d 190 (9th Cir. 1988) [applying facially legitimate standard to
parole of applicant for citizenship]; Sanchez v. Kindt, 752 F.Supp. 1419 (S.D. Ind. 1990); Pierre v. INS,
793 F.Supp. 440 (E.D.N.Y. 1992) [denying habeas where magistrate set bond in temporary resident’s
criminal case]; Gutierrez v. Ilchert, 702 F.Supp. 787 (N.D. Cal. 1988) [reversing parole denial to
legalization applicant under “facially legitimate” standard]. DD cannot use post hoc explanations to
support his decision. Gutierrez v. Ilchert, 682 F.Supp. 467, 472 (N.D. Cal. 1988); Moret, 746 F.2d 989 (3d
Cir. 1984). DD’s decision will be reversed even under the facially legitimate and bona fide standard where
he fails to make a finding that the person’s continued detention is in the public’s interest and fails to
provide adequate support for such a finding, Li v. Greene, 767 F.Supp. 1087 (D. Colo. 1991); Diaz v.
Schiltgen, 946 F.Supp. 762 (N.D. Cal. 1996), or where he relies on an undisclosed review process.
Noorani v. Smith, 810 F.Supp. 280 (W.D. Wash. 1993). Page 240
12.c. Challenging ICE
(1) Failure to Exercise Discretion—Accardi v. Shaughnessy, 347 U.S. 260 (1954).
(2) Violation of International Law—U.N. Convention and Protocol Relating to the Status of Refugees (Art.
3, 32 §2), Universal Declaration of Human Rights, Art. 3 and 9, the American Convention on Human
Rights, Part 1, Ch. II, Art. 7. See Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1388 (10th Cir.
1981). But see Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc) [international law
not binding in the face of statute—former §1226(e)—to the contrary]; Gisbert v. U.S. Att’y Gen., 988
F.2d 1437, 1447–49 (5th Cir. 1993) [pre-Zadvydas rejecting public international law and human rights
claims regarding indefinite detention]; Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir. 1986) [no
international law right because there are controlling executive (AG) acts and judicial (Jean v. Nelson)
decisions]; Hernandez Nodarse v. U.S., 166 F.Supp.2d 538 (S.D. Tex. 2001) [pre-Clark finding that
excludable Cuban not entitled to release]; Sanchez v. Kindt, 752 F.Supp. 1419, 1432 (S.D. Ind. 1990).
(3) Denial of Counsel—Raul-Chavez v. Turnage, No. C-80-405J (W.D. Wash. 1980).
(4) Use of Race or National Origin in Deciding Parole—Jean v. Nelson, 472 U.S. 846 (1985); but see
Jeanty v. Bulger, 204 F.Supp.2d 1366, 1373–75 (S.D. Fla. 2002), aff’d sub nom. Moise v. Bulger, 321
F.3d 1336 (11th Cir. 2003) [finding Jean did not foreclose denying parole to Haitians as a class]; Cuban
Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1427–29 (11th Cir. 1995). There may also be
jurisdiction for a Bivens discrimination claim. Kwai Fun Wong v. U.S., 373 F.3d 952, 968–75 (9th Cir.
2004) [Bivens claim for discrimination in the revocation of parole and rejection of AOS were actionable
because the entry fiction applies to a narrow class of procedural rights and does not apply to all
constitutional claims of nonadmitted persons, but granting qualified immunity].
(5) Failure to Follow ICE Guidelines—Abdi v. Duke, 280 F.Supp.3d 373 (W.D.N.Y. 2017) [court entered
preliminary injunction for putative class of “all arriving asylum-seekers who have passed a credible fear
interview and who are or will be detained a Buffalo Federal Detention Facility and who have not been
granted parole.” The injunction ordered ICE to comply with the requirements of ICE Directive 11002.1].
(6) Due Process or Equal Protection Violations—For discussion regarding constitutionality of pre- and
post-removal order review of detention of inadmissible persons, see in this chapter ¶ X.R.2.e (p.504)
infra. Persons who have entered EWI are entitled to due process, as are returning LPRs,
notwithstanding their classification as “arriving aliens.” Landon v. Plasencia 459 U.S. 21 (1982). At
least one court has distinguished between EWI for purposes of inadmissibility in proceedings and
whether the EWI entrant is entitled to due process under Zadvydas. Heng Meng Lin v. Ashcroft, 247
F.Supp.2d 679, 683–85 (E.D. Pa. 2003) [for purposes of due process right of release under Zadvydas
and application of 8 CFR §241.13, person who entered EWI has entered and is entitled to due
process, notwithstanding treatment in removal proceeding as inadmissible]. Challenge based upon
prolonged detention after denial of parole is available. See e.g., Chen v. Aitken, 917 F.Supp.2d 1013
(N.D. Cal. 2013) [returning LPR treated as arriving alien and subject to detention pursuant to INA
§235(b) is eligible for bond hearing after 7 months in detention]
(7) Treatment as Inadmissible Instead of Deportable—Appah v. Sava, 636 F.Supp. 207 (S.D.N.Y. 1986)
[where person charged as inadmissible but court determined that he was deportable, he had right to
bond].
(8) Conditions of Detention—Haitian Ctrs. Council v. Sale, 823 F.Supp. 1028 (E.D.N.Y. 1993), but due
process challenge may be unavailable for negligent treatment, Ortega v. Rowe, 796 F.2d 765 (5th Cir.
1986); Al Najjar v. Ashcroft, 186 F.Supp.2d 1235, 1242–44 (S.D. Fla. 2002) [standards applied to post–
removal order detention are the same for pretrial detainees, and detention is only unconstitutional
where it is meant to punish detainee or is excessive to regulatory purpose and hence “punitive”], but
see Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987). See also in this section, Conditions of
Confinement, ¶ 25 (p.245), infra. Page 241
(9) If Detainee Must Appear Before DHS in Another Proceeding Such as Legalization—Gutierrez v.
Ilchert, 682 F.Supp. 467 (N.D. Cal. 1988).
(10) Relying on Impermissible Criteria—Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) [finding no
“facially legitimate and bona fide” reason for denial of parole where the government’s claim of security
risk was “based on facially implausible evidence” that had already been rejected by the IJ]; Mersereau
v. Ingham, 875 F.Supp. 148, 153 (W.D.N.Y. 1995) [DD’s reliance on person’s apparent excludability is
not a facially legitimate and bona fide reason to deny parole]; Li v. Greene, 767 F.Supp. 1087 (D. Colo.
1991) [DD’s reliance on likelihood of success on asylum as criteria for release is impermissible
because it is not mentioned in the statute or regulations]; Noorani v. Smith, 810 F.Supp. 280 (W.D.
Wash. 1993) [reliance on litigation section recommendation without disclosing basis is insufficient].
(11) Where Relief Has Been Granted in Person’s Favor—But see Clark v. Smith, 967 F.2d 1329 (9th Cir.
1992).
(12) Where Detention Is Prolonged and/or Indefinite Without a Bond Hearing—In Clark v. Martinez, 543
U.S. 371 (2005) the Court applied Zadvydas to Mariel Cubans and all inadmissible detainees, finding
that as a matter of statutory construction of INA §241(a)(6), inadmissible persons who could not be
deported must be released after 6 months. See also Demore v. Kim, 538 U.S. at 532-33 (Kennedy, J
concurring)But in Jennings v. Rodriguez, without reaching the constitutional question, the Court
determined that INA statutes did not compel a hearing on prolonged detention. Jennings v. Rodriguez,
583 U.S. __, 138 S.Ct. 830 (2018) [INA §235(b), §236(a), and §236(c), cannot be plausibly read to
include a prohibition against prolonged detention (more than 6 months) and to include a requirement
that the government must provide by clear and convincing evidence that detention remains justified;
remanded for an analysis of constitutional and class claims]. But see Garza-Garcia v. Moore, 539
F.Supp.2d 899 (S.D. Tex. 2007) [refusing to provide a Matter of Josephhearing to an “arriving alien”
subject to mandatory detention for over a year is unconstitutional under Demore because Demore was
not limited to detained persons who were not arriving aliens]; Moallin v. Cangemi, 427 F.Supp.2d 908,
25–27 (D. Minn. 2006) [if detention is pre-removal, then year period is a violation of due process under
Kennedy opinion in Demore]. But see Hussain v. Mukasey, 510 F.3d 739, 742–44 (7th Cir. 2007) [no
jurisdiction to challenge pre–final detention order under INA §242(a)(2)(B)(ii); court could not release
petitioner while merits appeal is pending but would have to remand release issue to district court; the
court did not rule out a constitutional challenge for inordinate delay in certain circumstances];
Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th Cir. 2004) [in case involving a non-LPR asylum
seeker (and no mandatory detention), reading Zadvydas and Demore to permit detention while
removal proceeding and review is ongoing, but recognizing that subsequent delays may warrant
remedial action]; Carrillo-Lozano v. Stolc, 669 F.Supp.2d 1074, 1079 (D. Ariz. 2009) [person claiming
prolonged detention as a USC had no due process claim where the immigration court had provided
him a bond hearing and the district court was barred by 8 USC §1226(e) from reviewing the
discretionary determination]; Ali v. Achim, 342 F.Supp.2d 769 (N.D. Ill. 2004)[reading Demore broadly
and finding no due process violation for non-LPR in detention for 28 months during proceedings].
(13) Reasons Articulated by DHS are Unsupported by the Record—Judulang v. Chertoff, 562 F.Supp.2d
1119, 1125–27 (S.D. Cal. 2008) [IJ denied bond based upon threat to community that was not
supported by the record; petitioner ordered released]; Bajrami v. Greene, No. 94-S-1783 (D. Colo.
June 2, 1995).
13. Parole Revocation—Traditionally, parole had to be revoked prior to proceedings. Matter of O-, 16 I&N Dec.
344 (BIA 1997). Revocation is automatic at expiration or upon the person’s departure from the U.S. 8 CFR
§212.5(e)(1). Other revocation must be by notice and the parolee “shall be restored to the status that he or
she had at the time of parole.” 8 CFR §212.5(e)(2)(i). Pre-IIRIRA, revocation had been judicially reviewable.
Moret v. Karn, 746 F.2d 989 (3d Cir. 1984); Soroa-Gonzalez v. Civiletti, 515 F.Supp. 1049 (N.D. Ga. 1981).
Page 242
14. Cuban Review Plan—In the past, DHS maintained separate parole procedures for Mariel Cubans who are
detained with final orders. 8 CFR §§212.12, 1212.12. Although the regulations have never been withdrawn,
the agency issued regulations at 8 CFR §§214.13, 214.14 that provide that all post-removal detained persons
are entitled to custody reviews under 8 CFR §241.13 and may be subject to continued detention under 8
CFR §214.14(f). Marquez-Coromina v. Hollingsworth, 692 F.Supp.2d 565, 570-72 (D. Md. 2010) [discussed
continued existence of 212.12 but found, in light of S.Ct. decision in Clark, that the applicable regulations are
now 214.13 and 214.14]. In Clark v. Martinez, 543 U.S. 371 (2005) the Court applied Zadvydas to Mariel
Cubans and all inadmissible detainees, finding that as a matter of statutory construction of INA §241(a)(6),
inadmissible persons who could not be deported must be released after 6 months. Morales-Fernandez v.
INS, 418 F.3d 1116, 1122–25 (10th Cir. 2005) [post-Clark finding it impermissible to hold Cuban beyond 6-
month period]; Rosales-Garcia v. Holland, 322 F.3d 386, 403–15 (6th Cir. 2003) [under Zadvydas and the
Fifth Amendment, post-removal period of detention has an implicit reasonable-time limitation]; Gallego v. INS,
663 F.Supp. 517 (W.D. Wis. 1987) [former INA §235(b) and INA §237(a)(1) supports only temporary
detention of excludable aliens]. Given the normalization of relationships between Cuba and the U.S. there is
a serious question as to whether the Cuban Review Plan will be utilized and is relevant. Joint Statement,
Governments of Cuba and the United States (Jan. 12, 2017), AILA Doc. No. 17011300; Press Release,
Johnson, DHS Sec., Statement by Sec. Johnson on the Continued Normalization of Our Migration
Relationship with Cuba (Jan. 12, 2017), AILA Doc. No. 17011309; DHS Fact Sheet: Changes to Parole and
Expedited Removal Policies Affecting Cuban Nationals (Jan. 12, 2017), AILA Doc. No.17011361; 82 FR
4769-71 (Jan. 17, 2017); 82 FR 4771-73 (Jan. 17, 2017); 82 FR 4902-05 (Jan. 17, 2017)
15. Review Procedures for Non–Mariel Cuban and Other Indefinite Detainees—See in this chapter ¶
X.V.13 (p.704), infra.
16. Humanitarian Parole to USCIS or Significant Public Benefit Parole to ICE
16.a. In General—This form of parole is also pursuant to INA §212(d)(5) and 8 CFR §212.5 and typically
arises where someone is in another country and needs to enter the U.S. for a medical reason, some other
emergency, is a child under 16 in need of family reunification, has a physical or mental disability, or civil
judicial proceedings. Requests for humanitarian parole are sent to USCIS Office of International
Operations, Humanitarian Affairs Branch. The request may be expedited Parole requests may also be
sent to ICE if seeking a Significant Public Benefit Parole usually related to an administrative, judicial, and
criminal court matters, intelligence matters, other law enforcement issues such as extradition or
confidential informants and persons with final orders of removal. CBP may also issue parole at ports-of-
entry including preflight inspection. Power Point, USCIS Humanitarian Parole Program (2013), AILA Doc.
No. 14012243. The humanitarian parole is typically granted for the duration of the medical or other
emergency or compelling situation. It is possible to ask for re-parole prior to the expiration date of the
parole. Anyone can file the parole request including the prospective parolee, a sponsoring relative, an
attorney, or any other interested individual or organization. and the parole request must contain:
I-131 (Application for Travel Document);

I-134 (Affidavit of Support);
Name, date and place of birth, occupation and current address of parolee;
Relationship to sponsor;
Length of time parole is sought;
A fee for each prospective parolee;
If parole is for medical reasons, results of a recent medical examination by a panel physician;
Name, address, place of birth, U.S. immigration status and occupation of sponsor;
Detailed explanation of the reasons for Humanitarian Parole and the length of time for which you
need it (maximum time is one year);
Detailed explanation of why you cannot obtain a NIV from the DOS including when and where you
attempted to obtain a visa with a copy of the denial letter; Page 243
Detailed explanation of the reasons why you cannot obtain any required waiver of inadmissibility if
applicable and a copy of the denial letter regarding the waiver;
Copies of any previously approved immigrant petitions (I-130, I-140, I-360);
Statement of how and by when medical care, housing, transportation and other subsistence needs
will be met for each parolee;
Copies of supporting documents such as tax returns, medical records, doctor’s letters. (See
“Medical Parole,” below);
Checklist for Humanitarian Parole Requests, See Fact Sheet, Humanitarian Parole, USCIS (Jan.
27, 2010), AILA Doc. No. 10012863; See also for SOPs and Humanitarian Protocols,
https://www.uscis.gov/humanitarian/humanitarian-parole
For USCIS/ICS/CBP MOA, see MOA, Parole Between USCIS, ICE and CBP (Sept. 2008),
http://www.ice.gov/doclib/foia/reports/parole-authority-moa-9-08.pdf.
16.b. Medical Parole—If it is based upon a medical reason you need an explanation from the treating
physician regarding the diagnosis, prognosis, the reasons why treatment cannot be obtained in the home
country or in a neighboring country, how long the treatment is expected to last, how the treatment will be
paid, and the overall estimated cost of the treatment.
16.c. Parole to Attend Parental Termination Proceeding—ICE is charged with considering the interests of
parents/legal guardians of children in parental termination proceedings. Memo, Sandweg, Acting Director,
ICE, 11064.1 §5.7 Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities
(Aug. 23, 2013), AILA Doc. No. 13082642. But this memo was superseded by ICE Policy 11064.2,
Detention and Removal of Alien Parents or Legal Guardians (Aug. 29, 2017), AILA Doc. No.
18042302[the new memo takes a far more limited view toward assisting parents of minor children who
may be in parental termination proceedings or in separate custody in another facility. It contemplates the
separation of children from their parents but allows for the possibility that parents, under limited
circumstances, may visit their children and participate in proceedings affecting the child].
16.d. Same-Sex Issues—Officers should take into account the basis for an LGBT-based asylum claim when
assessing whether an asylee’s same-sex partner remaining behind in a LGBT hostile country may be at
imminent risk of harm. And USCIS officers are instructed to exercise their discretion to consider a same-
sex partner or children of a same–sex partner in the same light as a family member, particularly if the
individual seeking parole is from a country where same-sex marriage is not legal. AILA-USCIS HQ Liaison
Meeting (Apr. 7, 2014) at Q.9, AILA Doc. No. 16041141.
17. Humanitarian Parole Request by Consul—In rare circumstances consulates may request humanitarian
parole from the USCIS Office of Refugee, Asylum and International Operations, Humanitarian Assistance
Branch or Significant Public Benefit Parole from USCIS or ICE. 9 FAM 202.3-3(B)(2)(b) [guidance on
procedures].
18. Release During Stay Order [INA §241(c)(2), 8 USC §1231(c)(2)]—The AG may release on bond any
person who has been denied admission but whose removal is stayed because they are a witness in a
prosecution.
19. Detention and Release of Juveniles—Juveniles may be released to immediate family or, in unusual
circumstances, to another adult with consent of DD or chief patrol agent. Other juveniles may be detained
with the Juvenile Coordinator. 8 CFR §§212.5(b)(3)(i), 236.3, 1236.3. For a more complete discussion of
juveniles and bond, see in this chapter “Detention of Children and Families,” ¶ X.N.8 (p.488), infra.
20. Detention of Persons in Vulnerable Categories—See in this chapter “Prosecutorial Discretion in

Detention,” ¶ X.L.2 (p.479), infra.
21. Employment While Detained—INS policy of paying detainees $1/day upheld as not violative of the FLSA.
Alvarado-Guevara v. INS, 902 F.2d 394 (5th Cir. 1990). It also does not constitute involuntary servitude.
Channer v. Hall, 112 F.3d 214 (5th Cir. 1997). Americans with Disabilities Act (ADA) claim regarding
conditions also dismissed as not applicable to federal INS detention center under private management.
Hurtado v. Reno, 34 F.Supp.2d 1261 (D. Colo. 1999). But see Menocal v. The GEO Grp., Inc., 882 F.3d 905
(10th Cir. 2018) Page 244 [court affirmed the certification of a class of 50,000 to 60,000 detainees under the
TVPA who were required by GEO to do unpaid sanitation work while detained and another class of 2,000
who participated in a voluntary work program who claim unjust enrichment]; Washington v. Geo Grp., Inc.,
283 F.Supp.3d 967(W.D. Wash. 2017) [denied GEO’s motion to dismiss Washington state’s complaint
seeking damages to enforce Washington’s minimum wage laws and for unjust enrichment for civil
immigration detainees in GEO facilities paid $1 an hour for their labor].
22. Force Feeding During Detention—Some courts have found that neither the First Amendment nor the right
to privacy prevent DHS from force feeding a person on a hunger strike as the government has an interest in
preserving the person’s life and maintaining order with the institution. In re Soliman, 134 F.Supp.2d 1238,
1252–58 (N.D. Ala. 2001), vacated as moot,Soliman v. U.S.,296 F.3d 1237 (11th Cir. 2002) [under standards
articulated in Turner v. Safley, 482 U.S. 78 (1987); Washington v. Glucksberg, 521 U.S. 702 (1997); and
Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990), indefinite detainee could be force-fed without
violating his First Amendment rights or right to privacy]. However, hunger strikes in prison may constitute
protected activity sufficient to support First Amendment retaliation claims. See e.g., Stefanoff v. Hays Cnty.,
Tex., 154 F.3d 523, 527 (5th Cir. 1998) [hunger strike in prison setting is expressive conduct protected by the
First Amendment if intended to convey a particularized message].Moreover, the right to bodily integrity is a
significant independent interest against the force-feeding and other involuntary medical procedures. See
Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990). For these reasons, courts have refused to
authorize force-feeing of prisoners in some circumstances. See Zant v. Prevatte, 286 S.E. 715 (Ga. 1982);
Thor v. The Superior Court of Solano Cnty., 855 P.3d 375 (Cal. 4th 1993).
23. Detention at Overseas Facilities (Guantanamo)—Legacy INS believed it had no jurisdiction to detain or
to manage detention facilities outside the U.S. such as Guantanamo. Legal Opinion, Virtue, G.C. to Meissner,
Comm. (HQCOU 90/15) (Sept. 1, 1998), reprinted in 76 No. 13 Interpreter Releases 529, 536–45 (Apr. 2,
1999). For issues regarding detention at Guantanamo, see in this chapter “Military Commissions Acts,” ¶
X.S.2 (p.511), infra.
24. Release of Identity and Information Relating to Detainees
24.a. In General—State, local, and private detention facilities may not release information about DHS
detainees being held in their facilities. Such information “shall be under the control of the Service and shall
be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and
executive orders.” 8 CFR §§236.6, 1236.6; Center for Nat’l Security Studies v. DOJ, 331 F.3d 918 (D.C.
Cir. 2003) [detainee names, attorneys’ names, dates of arrest and release, locations of arrest and
detention and reasons for detention of post-9/11 detainees, including immigration, criminal and material
witness detainees, are exempt from disclosure under Exemption 7(A) of the FOIA regarding law
enforcement proceedings]; CEI Washington Bureau v. DOJ,404 F.Supp.2d 172 (D.D.C. 2005) [request for
personal information, such as alien numbers, in an electronic database regarding the administration of the
State Criminal Alien Assistance Program was exempt under section 6 (privacy) and 7(C) (law
enforcement purposes) of the FOIA]; ACLU v. County of Hudson, 799 A.2d 629 (N.J. Super. 2002) [8 CFR
§236.6 preempts state open-records laws]. The regulation applies not only to current detainees, but
preempts release of information regarding former detainees. Commissioner of Corr. v. Freedom of Info.
Comm’n,52 A.3d 636 (Conn. 2012) [prohibiting release of all records regarding former immigration
detainees]. But see Union Leader Corp. v. DHS, 749 F.3d 48 (1st Cir. 2014) [public interest in disclosure
outweighs arrestees’ privacy interests in their names and Exemptions 6 and 7(C) do not bar release]; New
York Times Co. v. DHS, 959 F.Supp.2d 449 (S.D.N.Y. 2013) [released names of persons since 2008 who
were designated for removal but released under Zadvydas].
24.b. Locator System for Detainees—ICE has established the Online Detainee Locator System (ODLS),
http://locator.ice.gov, which allows access by the public to ICE’s database regarding the location of a
detainee either by A# or name. The name or A# must be exact. FAQs, ICE, Online Detainee Locator
System, AILA Doc. No. 10072366. Page 245
25. Conditions of Confinement—ICE Standards
[For CBP standards, see ¶ 26 (p.248), infra.]
25.a. In General—ICE, Performance-Based National Detention Standards (PBNDS) 2011, AILA Doc. No.
12022839, http://www.ice.gov/detention-standards/2011 (includes 2016 revisions), provides detailed
standards to be applied in all ICE Service Processing Centers, contract detention facilities, and state or
local government facilities through Intergovernmental Service Agreements including: access to legal
materials, telephones and facility equipment, visitation, law libraries, free legal services, correspondence,
mail, classification, grievance procedures, group presentation of legal rights, religious services,
educational opportunities, and hold rooms in detention facilities (where a person may not be kept for more
than 12 hours). However, many of the county jails that ICE contracts with have not yet adopted these
standards and continue to operate under older ICE and legacy INS standards. See Government
Accountability Office, Additional Actions Needed to Strengthen Management and Oversight of Facility
Costs and Standards, GAO-15-153 (Oct. 2014). The manual also sets forth policies regarding requests to
be married in detention. It is a violation of a person’s fundamental right to marry to prohibit him or her from
marrying while in detention. ICE acknowledges that contractual detention facilities are also governed by
the 2000 National Detention Standards, 2008 Performance-Based National Detention Standards (PBNDS
2008) and the Family Residential Standards as well as the PBNDS 2011, depending upon the contract
with the facility. The current and prior standards are found at http://www.ice.gov/detention-standards.
Turner v. Safley, 482 U.S. 78 (1987); Theck v. Warden, INS, 22 F.Supp.2d 1117 (C.D. Cal.
1998).Conditions of immigration detention are generally judged by the standards applicable to pretrial
detainees under Bell v. Wolfish, 441 U.S. 520, 539 (1979) and therefore the “deliberate indifference”
standard applies. Chavero-Linares v. Smith, 782 F.3d 1038 (8th Cir. 2015) [ICE official not deliberately
indifferent where detainee who was ultimately assaulted by another detainee called-in an ambiguous
warning of possible harm]; Belbachir v. County of McHenry, 726 F.3d 975 (7th Cir. 2013) [where person
awaiting asylum committed suicide, court reversed dismissal of one defendant under the deliberate
indifference standard]; Newbrough v. Piedmont Reg’l Jail Auth., 822 F.Supp.2d 558, 574-76 (E.D. Va.
2011) [in a §1983 wrongful death suit due to medical neglect, the court rejected a more protective
standard and applied the deliberate-indifference standard, analogizing immigration detainees to pretrial
detainees]. Detainees may also challenge their medical treatment while in custody. Newbrough, supra
[finding doctor, some medical staff, and jail superintendent would not be dismissed for their medical
neglect, under deliberate-indifference standard, of immigration detainee who died in their custody];
Villegas v. Metropolitan Gov’t of Davidson Cnty., 789 F.Supp.2d 895 (M.D. Tenn. 2011) [immigration
detainee shackled during final stages of labor and post-partum recovery granted summary judgment for
claim for deliberate indifference to serious medical needs under 42 USC §1983 but denied 42 USC §1981
as third party beneficiary of contract between ICE and county]; Rosemarie M. v. Morton, 671 F.Supp.2d
1311 (M.D. Fla. 2009) [failure to receive treatment for serious gynecological problems]. See also Brown v.
Plata, 563 U.S. 493 (2011) [overcrowding and the medical and mental health care provided by California
prisons “falls below the standard of decency that inheres in the Eighth Amendment”]; Manuel v. City of
Joliet, 137 S.Ct. 911 (2017) [pretrial detention can violate the Fourth Amendment when it precedes and
when it follows the start of legal process]. See also Al Najjar v. Ashcroft, 186 F.Supp.2d 1235, 1242–44
(S.D. Fla. 2002) [petitioner must show that the government intended to punish him or her or that their
actions are arbitrary or purposeless and not reasonably related to legitimate government objectives];
Ortega v. Rowe, 796 F.2d 765 (5th Cir. 1986). But see Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987);
Chehade Refai v. Lazaro, 614 F.Supp.2d 1103 (D. Nev. 2009) [a Fourth Amendment right to be free from
nonroutine searches without reasonable suspicion is clearly established for unadmitted aliens who are
stopped at the airport and taken to detention facility]. Additionally, in the Ninth Circuit, civil detainees are
presumptively entitled to “more considerate” treatment than pretrial criminal detainees and sentenced
prisoners; in situations where civil detainees are treated the same as or worse than their counterparts in
criminal custody, the government must justify the treatment with legitimate, nonpunitive purposes. Jones v.
Blanas, 393 F.3d 918 (9th Cir. 2004) [suggesting more protective standard for civil detainees than
“deliberate indifference” standard]. The Public Health Service Page 246 under ICE has been renamed ICE
Health Service Corp. (IHSC) and their medical files are now fully electronic under an “eHR” system. See
92 No. 1 Interpreter Releases 10-11 (Jan. 5, 2015)
25.b. Pregnant Detainees—The former presumption against detaining pregnant women has changed and is
no longer in effect. ICE, Directive 11032.3 Identification and Monitoring of Pregnant Detainees (Dec. 14,
2017), AILA Doc. No. 18032931. ICE, FAQs, Identification and Monitoring of Pregnant Detainees (Mar.
30, 2018), AILA Doc. No. 18033060[“ICE has ended the presumption of release for all pregnant
detainees”]. For prior policy see Memo, Homan, Ex. Assoc. Director, ICE, Identification and Monitoring of
Pregnant Detainees (Aug. 15, 2016), reprinted in 93 No. 33 Interpreter Releases Art. 6 and Apdx. II (Aug.
29, 2016) [insuring that pregnant detainees are identified, monitored and housed in the most appropriate
facility to manage their care].
25.c. Transgender Detainees—Memo, Homan, Ex. Assoc. Director, ICE, Further Guidance Regarding the
Care of Transgender Detainees (Jun. 19, 2015), AILA Doc. No. 15062901. Discrimination or harassment
“of any kind” based on a detainee’s actual or perceived sexual orientation or gender identity “is strictly
prohibited.” Memo at 2. When a person self-identifies as transgender or responds during the course of
Risk Classification Assessment regarding an elevated risk due to actual or perceived gender identity, ERO
officers are provided a script to elicit and determine gender identity. However, detainees “shall not be
disciplined for refusing to answer any gender identity-related questions” Memo at 3. And FOD “shall
ensure sensitive information, such as a detainee’s gender identity, is not used to the detainee’s detriment
by ICE personnel or detention facility staff or other detainees.” Id. When a detainee identifies as
transgender, ERO “shall make individualized placement determination to ensure the detainee’s safety.”
Memo at 4. Placement into administrative segregation due to a detainee’s transgender identification
“should be used only as a last resort and when no other temporary housing option exists.” Memo at 4.
Additionally, under DHS Prison Rape Elimination Act regulations, facility staff must not search or
physically examine a detainee for the sole purpose of determining the detainee’s genital characteristics. 6
CFR §115.15(i). The regulations also limit the use of administrative segregation to protect detainees
vulnerable to sexual abuse or assault, which is a very common concern for transgender detainees. 6 CFR
§115.43. The ERO FOD is also required to designate a specially trained employee at the supervisory level
to serve as an LGBTI Field Liaison and ERO is required to do the same on a national level by establishing
a National LGBTI Coordinator. Memo at 5. A detention plan shall be established for each transgender
detainee. Certain facilities will sign a contract modification that binds them to additional requirements for
the care of transgender detainees, including considering each transgender detainee’s requests and
preferences regarding housing assignments, hygiene/commissary and clothing needs consistent with their
gender identity, medical needs (including hormone therapy), and gender of personnel who search them.
Memo at 7-18.
25.d. Detainee Treatment Act of 2005— Under the Act “No individual in the custody or under the physical
control of the United States Government, regardless of nationality or physical location, shall be subject to
cruel, inhuman, or degrading treatment or punishment.” 42 USC §2000dd(a).ICE is also required to
comply with Title VI prohibitions against national origin discrimination regarding detainees who have
limited English proficiency. 76 FR 21755-68 (Apr. 18, 2011).
25.e. Segregation or Solitary Confinement of Person in Detention—Memo, Sandwig, Acting Director, ICE,
Review of the Use of Segregation for ICE Detainees, Section 11065.1 (Sept. 4, 2013), AILA Doc. No.
13090542(citing other relevant sections in PBNDS 2011 §§2.12, 3.1. These guidelines are still in effect.
ICE defines three types of segregation: Administrative (which is nonpunitive for administrative reasons
such as protective custody from others, scheduled for release, removal or transfer within 24 hours,
presenting a clear threat to the security of the facility or awaiting a hearing for violation of facility rules),
Disciplinary (punitive), and Special Vulnerabilities (persons suffering from mental illness or serious
medical illness or who have disability, are elderly, pregnant or nursing, or who would be harmed due to
sexual orientation or gender identity, or who have been victims of sexual assault, torture, trafficking or
abuse). 11065.1 §3. ICE recognizes that segregation is “a serious step that requires careful consideration
of alternatives” and when it is used due to special vulnerability should only be used “as a last resort and
when no other viable housing options exist.” 11065.1 §2. Administrative segregation Page 247 “should be
for the briefest term and under the least restrictive conditions practicable, consistent with the rationale for
placement” and these detainees “shall receive the same privileges as detainees housed in the general
population, consistent with the rationale for placement.” 11065.1 §3.1. A detainee’s age, physical
disability, sexual orientation, gender identity, race, or religion cannot be the sole basis for a placement in
involuntary segregation. 11065.1 §5.2. Disciplinary segregation is authorized only pursuant to an order
from a facility disciplinary panel following a hearing. The decision must be consistent with the Disciplinary
Severity Scale and only when “alternatives would inadequately regulate detainee behavior.” 11065.1
§§3.2, 5.1 In addition, detainees with medical or mental illness, suicide risk, or on a hunger strike are to
be removed from segregation if: (1) the placement results in deterioration of the detainee’s medical or
mental health and (2) an appropriate alternative (including transfer or release from custody) is available.
11065.1 §5.2. In general, segregation placements must be reviewed by the FOD whenever a detainee has
been continuously held in segregation for 14 days, 30 days, and at every 30-day interval thereafter, or has
been held for 14 days out of any 21-day period. 11065.1 5.1. For detainees with any of the special
vulnerabilities described in §5.2, the FOD must be notified within 72 hours of any placement in
segregation and notify IHSC and various ICE headquarters personnel for them to conduct an expedited
review of the placement. The review must consider a range of alternatives to segregation, including
release from custody. 110651.1 §5.2.6d. Detainees placed in administrative segregation because they
were the alleged victim of a sexual assault generally cannot be held in segregation for more than 5 days.
11065.1 §5.2.6c.
25.f. Telephone Access in Detention—PBNDS 2011 at ¶5.6. Detainees shall have reasonable and equitable
access to reasonably priced telephone services. Detainees with hearing or speech disabilities shall have
reasonable accommodations. A call to a court, a legal representative, OIG or DHS Civil Rights and Civil
Liberties may not be electronically monitored without a court order. Also, attorney-client conversations
should not be recorded. Minutes, AILA/ICE Liaison Committee Meeting (Jan. 20, 2015) Q#19, AILA Doc.
No. 15060908. Telephones shall be maintained in proper working order and there shall be 1 telephone for
25 detainees. Direct and free telephone service shall be available to contact: EOIR or local immigration
court; BIA, federal and state courts; consular officials; DHS/OIG, legal representatives to obtain
representation; legal service providers or organizations listed on the ICE/ERO list; UNHCR; federal, state
or local government offices to obtain documents relevant to his/her immigration case; OPR; and
immediate family or others if there is a personal or family emergency. The facility “shall take and deliver
telephone messages to detainees as promptly as possible.”
(1) Calling Legal Counsel—Detainees shall be able to communicate effectively with their legal counsel
and access procedures shall foster privacy and confidentiality with counsel. Calls may not be
monitored without a court order and calls shall be made without being overheard by staff or other
detainees. Staff shall allow detainees to make such calls as soon as possible after submission of the
request; access should ordinarily be granted within 8 facility-established “waking hours” and shall be
granted with 24 hours of the request. A facility may neither restrict the number of calls, nor limit the
duration of such calls by rule or automatic cut-off unless necessary for security purposes or to maintain
orderly and fair access to telephones. Time limits may be no shorter than 20 minutes and the detainee
shall be allowed to continue the call at the first available opportunity if desired. Restrictions may be
placed on the hours, frequency, and duration of calls. See also Lyon v. ICE, 171 F.Supp.3d 961 (N.D.
Cal. 2016) [in class action challenging restrictive ICE telephone policies in Northern California
detention centers, the court denied cross-motions for summary judgment but found that detainees
potentially have procedural due process and First Amendment rights to sufficient telephone access to
prepare their cases and insure effective counsel but do not have INA and statutory or Sixth
Amendment rights to counsel to challenge restrictive telephone policies].
25.g. Visitation by Legal Counsel—PBNDS 2011 at ¶5.7(J); See also SOPs, ICE, No. 11302, Legal Access
and Legal Visitation SOPs for ICE Family Residential Center (Oct. 30, 2015), AILA Doc. No.
15112461[setting standards for access by counsel to family detention centers].
Hours—Seven days a week, including holidays. Eight hours per day minimum on regular business
days; four hours on weekends and holidays. Page 248
Persons Allowed to Visit—Attorneys and other legal representatives; legal assistants upon
presentation of a letter of authorization from the attorney; translators/interpreters accompanying the
attorney; and messengers who may deliver documents to and from the facility but not visit
detainees. Procedures for telephoning in advance shall be established in writing.
G-28s—Need not present a G-28 at pre-representation stage or if representing detainees on legal
matters unrelated to immigration. Once the attorney-client relationship has been established the
attorney “shall” submit a G-28. A G-28 no longer has to be signed by the client for ICE purposes.
Minutes, AILA ICE Liaison, Fall Meeting (Dec. 17, 2013), AILA Doc. No. 14050762; Minutes, AILA
ICE Liaison (Apr. 10, 2014) at 1, AILA Doc. No. 14102844.
Privacy—The facility must provide private consultation rooms not subject to auditory supervision.
Document Exchange—Procedures must provide for exchange of documents even when contact
visitation rooms are unavailable. Documents may be “inspected but not read.” Detainees are
entitled to retain legal materials received for their personal use.
25.h. Access for Mental Health Evaluations—A settlement in Dilley Pro Bono Project v. ICE, No. 1:17-cv-
01055 (CRC) (D.D.C. Aug. 15, 2017), available at http://bit.ly/Dilley_2017-08-15,ensures that requests for
approval of a new health provider to evaluate a person incarcerated at either the Dilley or Karnes
immigration detention facilities will be given within four business hours of the request. Business hours are
between 7am and 6pm Monday through Friday, but not federal holidays. If it is a previously approved
health provider, ICE staff must give approval within 2 hours. If ICE fails to respond within those time
frames, the request is deemed approved. ICE may deny the request only if the provider’s: (1) professional
license is revoked or suspended; (2) has a criminal history that indicates risk of harm or abuse to the
person incarcerated; or (3) access to Dilley or Karnes is currently revoked for misconduct that indicates
risk of harm or abuse to the person incarcerated. If ICE denies the request it must provide sufficient
information that can be independently verified. If there is a disagreement, it may be elevated to the Asst.
FOD or Deputy FOD. There is also a procedure for telephonic medical evaluation of approved providers
which is submitted by email on a prescribed form.
25.i. Biometrics in Detention—If a detainee needs to have his biometrics taken to obtain a USCIS benefit,
ICE “will facilitate transportation to a USCIS Application support Center.” It is recommended that “counsel
work with the local OCC and FOD” to accomplish the process. Minutes, AILA/ICE Meeting (June 19,
2015) at Q.21, AILA Doc. No. 15082001
25.j. Employee Conduct—ICE employees are governed by a code of conduct that includes the responsibility
“to report allegations of employee misconduct, including any violations of law, rule or regulation, of which
they are aware” and to be “accurate, complete and truthful in all official matters.” ICE, Employee Code of
Conduct 1033.1, at 5.3 and 5.16, AILA Doc. No. 12111345. To file a complaint, See DHS, How to File a
Complaint (Oct. 2012), AILA Doc. No. 12102645.
26. Conditions of Confinement—CBP Standards
[For ICE standards, see ¶ 25 (p.245), infra.]
26.a. Generally—CBP has also established national standards for the transport, escort, detention and
search of persons within its custody. CBP, National Standards on Transport, Escort, Detention, and
Search (Oct. 5, 2015), AILA Doc. No. 15100505 (CBPNS). The guidance establishes national standards
in regard to reasonable accommodations, duration, and family unity concerning issues of detention.
Maintains policies for restraints, hold room standards, searches, consular and legal services contact,
bedding, medical and telephones as well detainees property and gender identity standards. See also
Unknown Parties v. Johnson, No. 15-00250, 2016 WL 267009 (D. Ariz. Jan. 11, 2016) [certifying class of
CBP detainees in Tucson sector challenging inhumane conditions of confinement].Jane Doe v. Kelly, 878
F.3d 710 (9th Cir. 2017) [relying on Bell v. Wolfish, the Court upheld the preliminary injunction requiring
that detainees in the Tucson sector be provided mats and Mylar blankets after 12 hours of detention, be
provided personal hygiene needs including the need to wash or clean themselves after being detained for
12 hours, and be provided medical screening under CBP standards, but did not disturb another part Page
249 of the injunction which rejected requirements for beds and mattresses, access to showers and
delivery of adequate medical care through medical professionals]
26.b. Transporting Detainees—CBP officers must be alert to any illnesses, “must report” any observed or
reported injury or illness, and “appropriate medical care must be provided or sought in a timely manner.”
Officers must also be “alert to nonverbal cues exhibited by detainees that might indicate that the detainee
is in mental or physical distress.” CBPNS at 2.5. Transporting must be conducted by two officers/agents
with “at least one being of the same gender or gender identity as the detainee” whenever operationally
feasible. CBPNS at 2.6.
26.c. Searches—CBP has established guidelines for pat-down, strip, body cavity searches, medical X-rays,
and monitored bowel movement. CBPNS at 3.0-3.11. Whatever search is conducted “all search
instructions must be communicated to the detainee in a language or manner the detainee can
comprehend” and whenever operationally feasible the search must be conducted by a person of the
“same gender, gender identity, or declared gender as the detainee being searched.” CBPNS at 3.3-3.4.
26.d. Detention Standards—Detainees “should generally not be held for longer than 72 hours in CBP hold
rooms or holding facilities” and “every effort must be made to hold detainees for the least amount of time.”
CBPNS at 4.1. Before placing any detainees together in a hold room or facility, agents/officers shall
assess whether the detainee may be considered an at-risk detainee, or at risk of posing a threat to others.
CBPNS at 4.2. Detainees should be inspected to determine illness or physical or mental health concerns
and “observed or reported injuries or illnesses should be communicated to a supervisor, documented in
the appropriate electronic system(s) of record, and appropriate medical care should be provided or sought
in a timely manner.” CBPNS at 4.3. Hold rooms should have no more detainees than prescribed by the
operational office’s policies and procedures and capacity may only be exceeded with supervisory
approval. CBPNS at 4.7. Detainees must be advised of their right to consular access in a language or
manner the detainee comprehends and must be afforded consular contact as soon as operationally
feasible if requested. CBPNS at 4.8. Detainees referred for removal proceedings must be provided a list
of legal service providers. Id. Officers/agents “must grant detainees telephone access per operational
office’s policies and procedures” and may, at their discretion, grant telephone access to any detainee even
if not required. CBPNS at 4.9. “Any detainee, not in general processing, with non U.S.-prescribed
medication, should have the medication validated by a medical professional, or should be taken in a
timely manner to a medical practitioner to obtain an equivalent U.S. prescription. Exceptions to this
requirement may only be made by a supervisor in collaboration with a medical professional … and must
be recorded in the appropriate electronic system of record.” CBPNS at 4.10 (Non U.S.-Prescribed
Medication). Detainees “must be provided with basic personal hygiene items, consistent with short term
detention and safety and security needs” and “reasonable efforts will be made to provide showers, soap
and a clean towel to detainees who are approaching 72 hours in detention.” CBPNS at 4.11. Clean
bedding is only provided to juveniles. Adults must be provided clean blankets upon request but only “when
available.” CBPNS at 4.12. Detainees will be provided food at regularly scheduled meal times which must
be documented and snacks between regularly scheduled meals. CBPNS at 4.13. There are additional
standards for at-risk populations describe as including juveniles, unaccompanied minors, pregnant
individuals, those known to be on life-sustaining or life-saving medical treatment, those at higher risk of
sexual abuse, reported victims of sexual abuse, those who have identified mental, physical or
developmental disabilities, those of advanced age, or family units. CBPNS at 5.0-5.7. All detainees
personal property will be safeguarded and detainees may designate a third-party to retain or retrieve their
personal property. CBPNS at 7.1. All medications “will generally be maintained with the detainee’s
personal property unless other conditions warrant” such as the medication being needed or properly
stored. CBPNS at 7.5.
27. Complaints—A detainee may file a complaint to the DHS Office of Inspector General (OIG) about staff
misconduct, physical or sexual abuse, or civil rights violations. Complaints may be filed by calling the DHS
OIG Hotline at 1-800-323-8603 or by writing to DHSOIGHOTLINE@dhs.gov. A detainee may also report civil
rights abuses to the DHS Office for Civil Rights and Civil Liberties at 1-866-644-8360 or crcl@dhs.gov. See
also Grievance System, PBNDS 2011 at ¶6.2. Page 250
28. Sexual Abuse and Assault Prevention and Intervention—Pursuant to the VAWA Reauthorization Act of
2013, PL 113-4 (Mar. 7, 2013) and the Prison Rape Elimination Act, PL 108-79 (Sept. 4, 2003), DHS
promulgated regulations regarding the prevention of rape and sexual assault in ICE detention facilities and
short-term holding facilities operated by ICE or CBP. 6 CFR pt. 115; 79 FR 13100–183 (Mar. 7, 2014). The
standards set forth in the regulations will be incorporated into “new contracts, contract renewals, or
substantive contract modifications” in regard to immigration detention facilities operated by non-DHS public or
private agencies or other entities. 6 CFR §115.12. The regulations establish a “zero tolerance” policy toward
sexual abuse. 6 CFR §115.11, and they establish explicit guidelines regarding training of ICE employees,
prevention, response and intervention, reporting, investigation and tracking of such abuse and assault. These
guidelines are in addition to those in Performance Based National Detention Standards PBNDS 2011 at
¶2.11 regarding sexual abuse and assault. See also ICE, Sexual Abuse and Assault Prevention and
Intervention, Policy No. 11062.2 (May 22, 2014), AILA Doc. No. 14052300 [this Directive is to implement the
regulatory standards and to complement the PBNDS].
29. Filing Suit—Although the traditional remedy for challenging conditions of confinement is a habeas action
under 28 USC §2241, at least one court requires the action to be filed under 42 USC §1983 when the
petitioner does not seek release as part of his conditions lawsuit. Ruiz v. Campos, 547 F.Supp.2d 682 (W.D.
Tex. 2008) [dismissing §2241 suit where petitioner with final order was only challenging the conditions of
confinement]. In light of Twombly and Iqbal plaintiffs have a heightened pleading standard. Turkmen v.
Ashcroft, 589 F.3d 542, 546–47 (2d Cir. 2009). See also Johnson v. City of Shelby, Miss., 135 S.Ct. 346
(2014) [reversed dismissal by Fifth Circuit for failure to invoke §1983 in civil rights complaint].However, a
Bivens action for adequate medical care under the Eighth Amendment is not permissible against private
prisons because an alternate state tort remedy exists. Minneci v. Pollard, 565 U.S. 118 (2012); Nor may
detainees bring Bivens claims against officers and employees of the Public Health Service. Hui v. Casteneda,
559 U.S. 799 (2010) [holding that the Public Health Service Act, 42 USC §233(a) precludes Bivens actions
against PHS personnel]. Nor against high level executive officers for policies regarding detention. Ziglar v.
Abbasi, 582 U.S. __, 137 S.Ct. 1843 (2017) [Bivens and Section §1985(3) claims against high-level
executive officers for policies arising from conditions of confinement of undocumented aliens created in the
wake of the major terrorist attack on U.S. soil on 9/11 (but remanded as to deliberate indifference under Fifth
Amendment regarding the warden)]
30. Death of Persons in Detention—ICE has now established a procedure for the notification and reporting of
detainees who die in ICE custody. Policy Number 11003.2, ICE, Notification and Reporting of Detainee
Deaths (May 19, 2011), AILA Doc. No. 14102770 [including notification to consulate and/or next-of-kin within
24 hours, internal review by ERO Assistant Director for Detention and Management, notifying numerous
entities including OPLA, OPR and Office of Civil Rights and Civil Liberties, and requiring OPR to notify OIG
and if OIG declines to investigate, initiating its own investigation into the circumstances surrounding the
death of the detainee].
31. Escape from Detention—For ICE procedures in regard to escape from custody see ICE, Escapes from
Custody, 19006.1 (Aug. 16, 2012), reprinted in 19 Bender’s Immigr. Bull. 1243-45 (Nov. 1, 2014).
N. Special Registration (NSEERS)
National Security Entry-Exit Registration System (NSEERS), 8 CFR §264.1; 67 FR 52584–93 (Aug. 12, 2002);
67 FR 61352–53 (Sept. 30, 2002); 67 FR 67766–68 (Nov. 6, 2002); 67 FR 70526–28 (Nov. 22, 2002); 67 FR
77136–38 (Dec. 16, 2002); 67 FR 77642–44 (Dec. 18, 2002); 68 FR 2363–65 (Jan. 16, 2003); 68 FR 2366–67
(Jan. 16, 2003); 68 FR 8046–48 (Feb. 19, 2003); 68 FR 8967 (Feb. 26, 2003); 68 FR 67578 (Dec. 2, 2003); 76
FR 23830 (Apr. 28, 2011); 81 FR 94231-33 (Dec. 23, 2016).
1. In General—In 2002 INS established NSEERS which was a registration system, including interviewing,
fingerprinting and photographing, for certain persons entering, exiting, and remaining in the U.S. who were
nationals or citizens of certain countries or who traveled through those countries. In light of various other
programs to capture biometric data and track exits and entries into the U.S., DHS effectively ended the
program by announcing it would no longer subject persons from the countries listed in the program to
NSEERS. See April 28, 2011 announcement, 76 FR 23830; Letter, Schlanger, DHS Officer for Civil Rights
(Apr. 27, 2011), AILA Doc. No. 11042769[describing it Page 251 as ending the program]. After “depopulating”
the program for several years, the regulatory framework and therefore the NSEERS program was ended as
obsolete. 81 FR 94231-33 (Dec. 23, 2016) [in light of other programs including ESTA and EVUS, the
NSEERS program was ended].
2. Treatment of Persons Who Failed to Comply with NSEERS—Despite suspending the NSEERS program
an issue remains as to the treatment of persons that DHS comes in contact with who did not comply with the
program. DHS has issued guidance on this issue. Memo, Deputy Secretary, DHS, DHS Guidance on
Treatment of Individuals Previously Subject to the Reporting and Registration Requirements of NSEERS,
(Apr. 16, 2012), AILA Doc. No. 12042661. The Memo sets for the following procedures and criteria:
2.a. Procedure—USCIS will no longer forward suspected NSEERS violations to ICE. Cases that were
forwarded to ICE will be returned to USCIS for adjudication unless ICE has issued an NTA. USCIS will
assume full responsibility for making the final determination as to whether a person’s past failure to
comply with NSEERS was willful or not. If USCIS determines in the course of a decision concerning a
benefit that the violation was willful, it may refer the matter to ICE for issuance of an NTA. However, it
retains prosecutorial discretion which it “should continue to favorably exercise” consistent with applicable
guidance. Where the applicant’s actions were not willful, DHS personnel should not apply the presumption
of inadmissibility under 8 CFR §264.1(f)(8) and may favorably exercise their discretion to reopen and re-
adjudicate an otherwise meritorious benefits application. In making a determination DHS personnel
“should consider anew all available information, notwithstanding any finding of willfulness that predates
this memorandum and the guidance set forth therein.”
2.b. Willfulness Standard—A willful violation of NSEERS is one that “was deliberate, voluntary or intentional,
as distinguished from that which was involuntary, unintentional, or otherwise reasonably excusable.” The
burden is on the applicant to prove that the violation was not willful by a “preponderance of the evidence.”
A TECS lookout for an NSEERS violation, alone, does not constitute conclusive evidence of willful
noncompliance. An admission of willfulness, however, is conclusive.
2.c. Willfulness Criteria—Failure to comply based upon fear or personal inconvenience is insufficient to
support a claim that noncompliance was not willful. However, a finding that noncompliance was not willful
includes, but is not limited to the following:
Credible claims that the person received inaccurate or incomplete advice from INS/DHS personnel
about where to report/register;
Credible claims that the person was in contact with INS/DHS but that INS/DHS failed to accurately
advise the person of the requirements;
Incapacitation of the person (e.g., hospitalization) that prevented persons from complying;
Exceptional circumstances beyond the person’s control (e.g., natural disaster, death of immediate
family member) preventing compliance;
Any other evidence demonstrating that failure was not the person’s fault.
3. Judicial Challenges—Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) [rejecting equal protection, notice and
comment, Fourth and Fifth Amendment violations and regulatory violations to challenge NSEERS program,
to terminate proceedings or suppress statements]; Iqbal Ali v. Gonzales, 502 F.3d 659, 665 (7th Cir. 2007)
[following Hadayat v. Gonzales, 458 F.3d 659 (7th Cir. 2006), INA §242(g) bars jurisdiction to hear
constitutional challenges to NSEERS]; Zerrei v. Gonzales, 471 F.3d 342, 347–48 (2d Cir. 2006) [rejecting
claim that NSEERS prejudiced respondent where there was no evidence that DHS obtained his passport
through NSEERS and nothing in the record substantiates his claim that he was singled out for removal];
Kandamar v. Gonzales, 464 F.3d 65, 70–74 (1st Cir. 2006) [denying motion to suppress statements taken at
NSEERS interview and improper seizure of passport; denying selective prosecution claim, and rejecting due
process and equal protection challenge to NSEERS on intermediate scrutiny and rational basis grounds];
Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006) [no equal protection violation where respondent
was placed in discretionary removal proceedings]; Ahmed v. Gonzales, 447 F.3d 433, 439–40 (5th Cir. 2006)
[same]. Page 252
O. Removal Hearing for Persons Seeking Admission
1. General—There is now one unified removal hearing for persons formerly subject to deportation and
exclusion hearings. (For the procedures for the removal hearing, see EOIR Immigration Court Practice
Manual; see also in this chapter Section X.T (p.513), infra.)
2. Effective Date—IIRIRA §309(c). The new removal procedures went into effect on Apr. 1, 1997. Persons in
exclusion/deportation proceedings on or before Apr. 1, 1997 are not subject to the new rules. IIRIRA §309(c)
(1), 8 CFR §1240.30–.39. If an evidentiary hearing had not actually commenced before Apr. 1, 1997, the AG
may proceed under the new rules by providing 30 days’ notice. IIRIRA §309(c)(2). The AG may also
terminate proceedings and restart them under the new procedure after Apr. 1, 1997, if there is no final
administrative decision. IIRIRA §309(c)(3). IIRIRA applies in assessing whether the detention of persons after
Apr. 1, 1997, is in violation of constitutional or statutory law. Rosales-Garcia v. Holland, 322 F.3d 386, 401–03
(6th Cir. 2003) [IIRIRA §309(c) does not preserve the former detention statute for excludable persons
(§236(e)) as authority to detain inadmissible persons with pre-IIRIRA removal orders]; Martinez-Vazquez v.
INS, 346 F.3d 903 (9th Cir. 2003) [same]; Arango Marquez v. INS, 346 F.3d 892, 897–902 (9th Cir. 2003)
[same]. DOJ established regulations governing removal hearings post–Apr. 1, 1997, 8 CFR §§1240.1 to .29,
and exclusion hearings that were initiated prior to Apr. 1, 1997. 8 CFR §§1240.30 to .39. The exclusion
hearing will not be addressed here. See §1240.30 et seq.
3. Prehearing Matters
3.a. Notice to Appear (NTA)—Proceedings are initiated by filing of an NTA with the immigration court. 8 CFR
§§239.1(a), 1239.1(a); 8 CFR §1003.14; 81 FR 62355 (Sept. 19, 2016) [expanded group of officers
permitted to file NTAs]. DHS may be required to translate the NTA. Louis v. Meissner, 530 F.Supp. 924
(S.D. Fla. 1981). But see Singh v. Holder, 749 F.3d 622, 626-27 (7th Cir. 2014) [where NTA was
personally served it need not be given in a language the respondent understands even where there was a
claim respondent could not read or understand the document and was a minor]. If applicant was not given
proper notice, the IJ should terminate proceedings. Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990).
The IJ may require a prehearing conference and may require parties to submit pretrial statements and
objections. 8 CFR §1003.21. DHS may exercise prosecutorial discretion not to initiate proceedings. See in
this chapter, ¶ X.T.2 (p.515), infra.
3.b. Change of Venue—Venue is normally at the DHS office having jurisdiction over the alien. The IJ has
jurisdiction to change venue. Matter of Dobere, 20 I&N Dec. 188 (BIA 1990); 8 CFR §1003.20(b). For a
full discussion on Change of Venue, see in this chapter ¶ X.T.5.f (p.538), infra.
3.c. Right to Counsel—INA §240(b)(4)(A), 8 USC §1229a(b)(4)(A). There is a right to counsel in removal
proceedings under INA §§239(b), 240(b)(4), 8 CFR §§1240.3, 1292. TheIJ must advise alien of availability
of free legal counsel under INA §292, 8 USC §1362, and must ascertain on the record whether the
respondent wants counsel. 8 CFR §1240.10(a)(1); Matter of Michel, 21 I&N Dec. 1101 (BIA 1998);Molaire
v. Smith, 743 F.Supp. 839 (S.D. Fla. 1990) [reversing exclusion order where person not informed of right
to counsel and did not knowingly or voluntarily waive counsel]. Under former exclusion proceedings, the
right to counsel was more qualified. Ledesma-Valdes v. Sava, 604 F.Supp. 675 (S.D.N.Y. 1985) [no denial
of right to counsel where alien transferred from NY to TX after counsel was retained in NY, but where no
personal or professional relationship established and no showing that counsel was unavailable in TX];
Committee of Central Am. Refugees v. INS, 795 F.2d 1434 (9th Cir.), modified, 807 F.2d 769 (9th Cir.
1986) [no statutory or constitutional right where no attorney-client privilege established; prudential
considerations prevent interference in AG’s right to select detention sites. Injunction not issued to prevent
future transfers]. But see Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554, 564–66 (9th Cir. 1990)
[distinguishing Committee of Central Am. Refugees]; Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985)
[deportation]; Castro-O’Ryan v. INS, 847 F.2d 1307 (9th Cir. 1987) (en banc) [legislative history confirms
right to counsel]; Louis v. Meissner, 530 F.Supp. 924 (S.D. Fla. 1981) [excludable alien deprived of
counsel by virtue of transfer to remote area]. There may also be a right to obtain appointed counsel in
federal court under the Criminal Justice Act, Saldina v. Thornburgh, 775 F.Supp. 507 (D. Conn. 1991); but
Page 253 see Perez-Perez v. Hanberry, 781 F.2d 1477 (11th Cir. 1986), or under the in forma pauperis
statute, 28 USC §1915(e). Santana v. Chandler, 961 F.2d 514 (5th Cir. 1992). Generally, DHS’s position is
that there is no right to counsel in primary, secondary, and deferred inspections, and that the right to
counsel only attaches for removal proceedings. In removal proceedings, the IJ must provide a list of pro
bono legal services available to the respondent, INA §239(a)(1)(E) consistent with the standards set forth
in 8 CFR §1003.61-3387.65. For a more thorough discussion of right to counsel, see in this chapter ¶
X.T.7.f (p.580), infra.
4. Removal Hearing for Person Deemed Inadmissible
4.a. Right to Fundamentally Fair Hearing—Applicant for admission has a right to a fundamentally fair
hearing under DHS statutes and regulations. Chin Yow v. U.S., 208 U.S. 8 (1908); Xiang v. Cadman, No.
93-640-Civ-Davis (S.D. Fla. Apr. 20, 1993) [applicant medicated to point he was unable to effectively
participate in hearing]; Bajrami v. Greene, No. 94-S-1783 (D. Colo. June 2, 1995) [no fair hearing
consistent with due process where non-English-speaking applicant denied right to cross-exam and was
not provided translation]; Matter of G-, 20 I&N Dec. 764 (BIA 1993) [proceedings must conform to
fundamental fairness citing Harisiades v. Shaughnessy, 342 U.S. 580 (1952), but no prejudice from
executive directive to expedite Golden Venture cases]. Procedures for removal hearing at INA §240(a), 8
USC §§1229 and 1229a. The unification of procedures for inadmissible (formerly excludable) and
deportable persons suggests greater rights for inadmissible persons in removal proceedings (e.g., some
forms of voluntary departure now available to all persons in removal proceedings). Former exclusion
proceedings at INA §236, 8 USC §1226; 8 CFR §1003.12, 8 CFR §§236, 1236. Removal hearing
procedures include: (1) open hearing unless IJ decides otherwise, 8 CFR §1240.10(b); (2) IJ identifies
person served with I-122; (3) IJ reads and explains the factual allegations and charges in NTA; (4) IJ
advises alien of right to witnesses, cross-examination and counsel. 8 CFR §1240.10. Molaire, supra;
Molina v. Sewell, 983 F.2d 676, 680 (5th Cir. 1993) [IJ’s failure to advise LPR that he could present
evidence prejudiced LPR’s right to demonstrate brief departure did not result in new entry]; Augustin v.
Sava, 735 F.2d 32 (2d Cir. 1984) [right to adequate translation]; Najaf-Ali v. Meese, 653 F.Supp. 833 (N.D.
Cal. 1987) [right to present witnesses]. Admissibility is determined on the basis of the law and facts
existing at the time the application for admission is considered by the IJ. Matter of Kazemi, 19 I&N Dec.
49, 51 (BIA 1984) (and cases cited therein).
4.b. Continuances—Continuance granted only upon showing: (1) inability to proceed occurred despite good-
faith effort; (2) additional evidence sought is favorable and not cumulative; and (3) actual prejudice caused
by denial. Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983), 8 CFR §§1003.29, 1240.6 [for good cause
shown]. See also Memo, MaryBeth Keller, Chief Immigration Judge, EOIR, OPPM 17-01, Continuances
(July 31, 2017) AILA Doc. No. 17080104[suggesting a far stricter interpretation of continuances
particularly for obtaining counsel, attorney preparation, merits hearings, and requests by DHS for file
location and security checks]. TheIJ also must advise alien of availability of free legal counsel under INA
§292, 8 USC §1362, and must ascertain on the record whether the respondent wants counsel. 8 CFR
§1240.10(a)(1); Matter of Michel, 21 I&N Dec. 1101 (BIA 1998); Molaire, supra. If DHS seeks to amend
the charges during the hearing, the respondent is entitled to a continuance to respond to the new charges.
8 CFR §1240.10(e). But see Matter of Salazar, 17 I&N Dec. 167 (BIA 1979). See also in this chapter
“Continuances,” ¶ X.T.5.g (p.540), infra.
4.c. Burden of Proof—In all removal proceedings, the government has the burden of proving alienage. 8
CFR §1240.8; Matter of Guevara, 20 I&N Dec. 238, 242 (BIA 1990). An applicant for admission in removal
proceedings, however, must establish that he or she is “clearly and beyond doubt entitled to be admitted
and is not inadmissible under section 212.” INA §240(c)(2), 8 USC §1229a(c)(2), 8 CFR §1240.8(b).
Singh v. Holder, 749 F.3d 622, 626-27 (7th Cir. 2014) [failed to meet burden to show inspection and
admission and I-213 and I-130 contradict his position]; Abufayad v. Holder, 632 F.3d 623 (9th Cir. 2011)
[government met burden of producing “some evidence” that it had reason to believe that applicant seeking
admission was likely to engage in terrorism and once burden shifted respondent did not prove that he was
clearly and beyond a doubt not inadmissible under 8 USC §1229a(c)(2)(A)]; Altamirano v. Gonzales, 427
F.3d 586, 590–91 (9th Cir. 2005) [parolee under §212(d)(5)(A) had the burden to prove admissibility]. A
“reason to believe” ground of inadmissibility, however, requires more than “mere suspicion” as there must
Page 254 be “a probability supported by evidence.” 9 FAM 302.4-3(B)(3)(b) [regarding drug trafficking];
Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1346 & n.9 (11th Cir. 2010) [following BIA decision that when
inadmissibility is a permanent bar there must be “close scrutiny” for the factual basis of the charge]. And
the clear and convincing burden does not require that “every alien seeking admission to the United States
to produce evidence proving clearly and beyond a doubt that he is not [ineligible], unless there is already
some other evidence—some ‘reason to believe’—that he is one.” Garces, supra, 611 F.3d at 1346 [4
police reports after vacated conviction were insufficient to prove reason to believe].
For those who are in the U.S. (former EWI), but who may be subject to charges of inadmissibility, DHS
must first establish alienage. 8 CFR §1240.8(c). Once alienage is established, unless the respondent
demonstrates by clear and convincing evidence that she is lawfully in U.S. pursuant to a prior admission,
the respondent must prove that she is clearly and beyond a doubt entitled to admission. 8 CFR
§1240.8(c). In the latter case, the applicant “shall have access to the visa or other entry documents and
any other records” pertaining to the applicant’s admission or presence that are not confidential. INA
§240(c)(2).
A visa issued by a consular post is prima facie evidence of admissibility sufficient to shift the burden of
producing evidence to the contrary to DHS. Matter of Walsh & Pollard, 20 I&N Dec. 60 (BIA
1988);Abufayad v. Holder, 632 F.3d 623 (9th Cir. 2011) [because applicant presented valid immigrant visa
the government had the burden of producing “some evidence” that it had reason to believe that applicant
seeking admission was likely to engage in terrorism; once government made that showing the burden
shifted to respondent who could not prove that he was clearly and beyond a doubt not inadmissible under
8 USC §1229a(c)(2)(A)].
A respondent who claims U.S. citizenship bears the burden of proving it by a preponderance of the
evidence. Leal Santos v. Mukasey, 516 F.3d 1, 4 (1st Cir. 2008) [once DHS establishes that respondent
was born abroad, burden shifts to her to prove derivative citizenship]; Matter of Tijerina-Villarreal, 13 I&N
Dec. 327, 330–31 (BIA 1969). But See Murphy v. INS, 54 F.3d 605, 609-10 (9th Cir. 1995) [applying
different test when respondent claims birth in the United States]. But the government must still prove
removability by clear and convincing evidence.
Where a person has been inspected and admitted through fraudulent means, the BIA and some federal
circuits have maintained that it is an admission. Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)
[following Areguillin and holding that someone without entry documents waived in by CBP at Mexican
border was “inspected and admitted” as those terms require “procedural regularity” and not “compliance
with substantive legal requirements”]; Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980) [Mexican citizen
not questioned at border while riding in a car that was stopped was “inspected and admitted” even though
she had no lawful basis to enter]; Emokah v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008) [procuring
admission through a material misrepresentation nevertheless results in an admission]. See also Gomez v.
Lynch, 831 F.3d 652 (5th Cir. 2016) [distinguishing lawful admission for AOS and unlawful status for
purposes of removal in its interpretation of 8 CFR §245.2(u)(4)].
Returning LPRs—DHS has the burden of proving inadmissibility. Landon v. Plasencia, 459 U.S. 21
(1982); Kwong Hai Chew v. Colding , 344 U.S. 590 (1953) [holding that a lawful returning resident alien
was “assimilated … to the status of a continuous resident” entitled to a due process hearing]; Chew v.
Rogers, 257 F.2d 607 (D.C. Cir. 1958) [“if Chew is to be deprived of his status … the Immigration and
Naturalization Service may do so only in proceedings in which the Service is the moving party, and it
bears the burden of proof.”]; Barradas v. Holder, 582 F.3d 754, 762 (7th Cir. 2009) [DHS proved
respondent-LPR’s inadmissibility by clear and convincing evidence]; Molina v. Sewell, 983 F.2d 676, 678
(5th Cir. 1993); Matter of Sosa, 15 I&N Dec. 572 (BIA 1976); Singh v. Mukasey, 553 F.3d 207, 214–16 (2d
Cir. 2009) [where IJ’s adverse-credibility determination was reversed and LPR’s statement taken by CBP
at border was suppressed, DHS failed to prove alien smuggling]. Once a colorable claim to LPR status is
made, DHS has the burden to prove by clear, unequivocal and convincing evidence that LPR status has
changed or been abandoned. Matadin v. Mukasey, 546 F.3d 85, 90–91 (2d Cir. 2008) [neither Matter of
Huang, 8 CFR §211.1(a)(2), INA §101(a)(13)(C)(ii), nor INA §101(a)(27) alters DHS’s burden of proof];
Hana v. Gonzales, 400 F.3d 472, 475 (6th Cir. 2005); Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997);
Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003); Matter of Huang, supra; Angeles v. District
Director, 729 F.Supp. 479, 482 (D. Md. 1990). Page 255 DHS also bears the burden to prove by clear and
convincing evidence that a returning LPR is an applicant for admission and therefore subject to
inadmissibility. Matter of Rivens, 25 I&N Dec. 623, 624-27 (BIA 2011) [government bore burden in INA
§101(a)(13)(C)(v) case regarding whether respondent committed a CIMT under INA §212(a)(2)].
However, in Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 2012) the BIA determined that the
government may prove application of 101(a)(13)(C) at the time of the removal hearing and need not prove
it during the time the LPR is at the border and paroled into the U.S. for prosecution. But see Molina v.
Sewell, 983 F.2d 676, 678 (5th Cir. 1993) [applicant has burden to prove he comes within the statutory
definition of lawful admission (formerly Fleuti exception)]. See also Sandoval-Loffredo v. Gonzales, 414
F.3d 892 (8th Cir. 2005) [addressing but not deciding who has the burden; IJ found DHS established by
clear, convincing, and unequivocal evidence that LPR engaged in unlawful activity under §101(a)(13)(C)
(ii) in facilitating brother’s illegal entry]. Returning LPR is also entitled to full due process rights at his or
her hearing. Landon v. Plasencia, supra. A returning LPR cannot be summarily excluded, even when DHS
invokes security concerns. Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989); Rafeedie v. INS, 795 F.Supp.
13 (D.D.C. 1992). However, DHS can rely on national security information in the removal hearing. INA
§240(b)(4)(B), 8 USC §1229a(b)(4)(B); Ali v. Reno, 829 F.Supp. 1415, 1434–36 (S.D.N.Y. 1993), aff’d, 22
F.3d 442 (2d Cir. 1994).
4.d. In Absentia Removal—Under IIRIRA §304, an applicant for admission is subject to removal in absentia.
INA §240(b)(5), (b)(7). See in this chapter “Hearings In Absentia,” ¶ X.T.7.cc (p.658), infra. Under former
exclusion procedures, DHS could exclude applicants in absentia, even though there was no statutory
provision to do so. Matter of Nafi, 19 I&N Dec. 430 (BIA 1987); 8 CFR §1003.26. An in absentia hearing
could proceed in exclusion if notice of the hearing was provided on the record at the prior hearing or by
written notice to counsel or the applicant. But an applicant today, faced with a prior in absentia exclusion
order can move to reopen upon a showing of reasonable cause for failure to appear. 8 CFR §1003.23(b)
(4)(iii)(B). Matter of Haim, 19 I&N Dec. 641 (BIA 1988). But see Matter of S-A-, 21 I&N Dec. 1050 (BIA
1997) [general assertion that applicant could not get to hearing on time due to traffic is not reasonable
cause]. Where the BIA misapplied Matter of S-A-, the court ordered that the case be reopened. De
Jimenez v. Ashcroft, 370 F.3d 783 (8th Cir. 2004) [motion to reconsider granted where respondent gave
specific reason for failing to appear and IJ’s order misled her into filing an appeal to the BIA rather than a
motion to reopen]. Motions to reopen in exclusion may be filed without regard to the time (90 day) or
numerical (one motion) limitations. Matter of N-B-, 22 I&N Dec. 590 (BIA 1999).Reasonable cause is not
needed to reopen where the applicant seeks asylum/withholding based on changed circumstances Matter
of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999) [no reasonable cause for failing to appear based on claim
that lawyer filed change of venue motion, but reopening permitted based on changed circumstances].
Prior to IIRIRA, the IJ had no jurisdiction to proceed in absentia in an exclusion case where a person was
sent back to his country (Mexico/Canada) to await a hearing. Matter of Sanchez, 21 I&N Dec. 444 (BIA
1996). Under current summary exclusion procedures, DHS may require persons to wait in border
countries. If IJ believed notice was insufficient to proceed in absentia, case should have been terminated,
not administratively closed, unless both parties agree. Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA
1990). In absentia determination reversed where INS’s notice was not actually received by applicant but
INS argued that applicant moved and did not provide a change of address. Mohammad v. Slattery, 842
F.Supp. 1553 (S.D.N.Y. 1994). A claim for ineffective assistance of counsel when Matter of Lozada is
followed can be a basis to reopen in absentia hearings in exclusion. Matter of N-K- & V-S-, 21 I&N Dec.
879 (BIA 1997); Lu v. Ashcroft, 259 F.3d 127, 131–32 (3d Cir. 2001) [denying reopening for failure to
comply with Lozada but finding right to challenge ineffective assistance]. See also Twum v. INS, 411 F.3d
54 (2d Cir. 2005) [reversing and remanding where IJ misconstrued in absentia motion as an ineffective
assistance of counsel claim under Lozada rather than a claim that security guards barred his entry to the
court]. The in absentia provisions of former INA §242B do not govern exclusion proceedings. Matter of
Gonzalez, 20 I&N Dec. 644 (BIA 1993).
An in absentia removal order bars most forms of relief for 10 years if the applicant was provided oral
notice (in his native language or another language he understands) of the time and place of the
proceedings and the consequences of failing to appear. INA §240(b)(7). Page 256
A person seeking to reopen an in absentia order, however, does not appear to have the benefit of an
automatic stay while the motion is pending. Compare 8 CFR §1003.23(b)(4)(iii)(B) [right to file motion to
reopen but no language suggesting automatic stay] with 8 CFR §1003.23(b)(4)(iii)(C) [language providing
for automatic stay before IJ and BIA when person was in former deportation proceeding] and 8 CFR
§1003.23(b)(4)(ii) [automatic stay before IJ when person was in removal proceedings].
4.e. Translations—The applicant has a right to accurate interpretation, but not simultaneous translation.
DHS regulations establish form for document translations. 8 CFR §1003.33. For a further discussion, see
in this chapter “Interpretation,” ¶ X.T.7.v (p.645), infra.
5. Relief for Persons Deemed Inadmissible—An applicant for admission may obtain the following relief:
5.a. Admission—Because the applicant has proven admissibility, the ground of inadmissibility is not
applicable, or the applicant is granted a waiver. For a detailed discussion of waivers of inadmissibility, see
in this chapter Section III.J (p.201), supra.
5.b. Asylum, Withholding of Deportation or CAT—INA §§ 208 and §241(b)(3); 8 CFR §§ 1208.16 to .17,
1240.11(c).
5.c. Adjustment of Status—As a result of regulatory changes arising from nationwide litigation, an applicant
for admission may seek AOS before USCIS. See Chapter 6, ¶ XII.A.16.e (p.1388), infra.
5.d. Unconditional Withdrawal of Application for Admission—Matter of Lepofsky, 14 I&N Dec. 718 (BIA
1974). Withdrawal is discretionary, not a matter of right, but when justice may best be served. Matter of
Vargas-Molina, 13 I&N Dec. 651 (BIA 1971). Can withdraw while case is on appeal. INA §235(a)(4)
[withdrawal in discretion of AG at any time]; and 8 CFR §1240.1(d) [providing for withdrawal on appeal].
Withdrawal permitted where applicant establishes: (1) the intent and means to depart immediately; and (2)
factors directly relating to the issue of admissibility indicate that justice would be served. U.S. v. Raya-
Vaca, 771 F.3d 1195, 1206-11 (9th Cir. 2014) [discussion of respondent’s prejudice in not being given an
opportunity to withdraw his application for admission]. Once inadmissibility is determined, IJ will ordinarily
not grant withdrawal without concurrence of the Service. Matter of Gutierrez, 19 I&N Dec. 562 (BIA 1988);
8 CFR §1240.1(d). In Sharma v. Reno, 902 F.Supp. 1130 at 1139–40, the court upheld denial of
withdrawal based on Gutierrez. However, the 9th Circuit has found no jurisdiction to review an IJ’s
decision concerning withdrawal of admission. Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 819 (9th Cir.
2004).
5.e. Voluntary Departure—Pursuant to IIRIRA, VD is now available prehearing (interpreted to mean Master
Calendar hearing) as well as at the conclusion of removal proceedings. INA §§240B(a), (b), 8 USC
§§1229c(a), (b). Arriving aliens however are not eligible for prehearing VD, INA §240B(a)(4) and lack
physical presence to be eligible for VD at the conclusion of proceedings. INA §240B(b)(1)(A). For further
details, see Chapter 8, Part III (p.1633), infra.
5.f. Permission to Reapply for Admission Nunc Pro Tunc—May be permitted if alien is inadmissible because
of previous deportation, if otherwise admissible. 8 CFR §§212.2(i), 1212.2(i); Matter of Roman, 19 I&N
Dec. 855 (BIA 1988); Matter of Ducret, 15 I&N Dec. 620 (BIA 1976); Matter of M-C-, 9 I&N Dec. 280 (BIA
1961); Matter of S-N-, 6 I&N Dec. 73 (AG 1954). But see Matter of Rivas, 26 I&N Dec. 130 (BIA 2013)
aff’d, Rivas v. U.S. Att’y Gen., 765 F.3d 1324 (11th Cir. 2014); Matter of Tima, 26 I&N Dec. 839, 845 (BIA
2016) [followed Rivas and nunc pro tunc unavailable to avoid the requirement that standalone 212(h) is
inapplicable]; Matter of Balao, 20 I&N Dec. 440 (BIA 1992); Matter of Alarcon, 20 I&N Dec. 557 (BIA
1992); Palma-Martinez v. Lynch, 785 F.3d 1147 (7th Cir. 2015) [person in removal as deportable is not
eligible for a stand-alone nunc pro tunc INA §212(h) waiver]; Perez-Rodriguez v. INS, 3 F.3d 1074, 1079–
80 (7th Cir. 1993).
5.g. Prosecutorial Discretion—Although broadly used previously, the exercise of prosecutorial discretion is
substantially limited. Memo, Kelly, Sec. DHS, Enforcement of the Immigration Laws to Serve the National
Interest (Feb. 20, 2017), ¶C, p. 4, AILA Doc. No. 17021830
6. Summary Decision—IJ may enter summary decision where inadmissibility is determined on the pleadings
and respondent does not apply for relief, or if the IJ only grants VD. 8 CFR §1240.12(b). Page 257
7. Consequences of Removal for Inadmissibility—A person found inadmissible in removal proceedings is

not admissible to the U.S. for 5 years from the date of removal, unless the AG consents in advance to
readmission. INA §212(a)(9)(A)(i), 8 USC §1182(a)(9)(A)(i).
7.a. Adjustment—Alien who has been found inadmissible but not removed could adjust status but only
before USCIS if eligible. Matter of C-H-, 9 I&N Dec. 265 (Ass’t Comm. 1961) [not barred by former section
INA §212(a)(16) unless also physically deported]; Matter of Manneh, 16 I&N Dec. 272 (BIA 1977);
Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. 2004)[upholding limitation on AOS before DD for
excludable persons who were paroled because under the entry doctrine, a person seeking admission
does not have an equal protection right to the same procedures for AOS before the IJ as a deportable
person]. But see Elkins v. Comfort, 245 F.Supp.2d 1161, 1164–65 (D. Colo. 2003), overruled on other
grounds, 392 F.3d 1159 (10th Cir. 2004). As a result of regulatory changes arising from nationwide
litigation, see e.g., Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005) [agreeing with Succar v. Ashcroft, 394
F.3d 8 (1st Cir. 2005), and disagreeing with Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 2005), vacated,
548 U.S. 901 (2006), and finding that an arriving alien in removal proceeding may adjust status], “arriving
aliens” are no longer barred from AOS before USCIS even if they have a removal order. Matter of Yauri,
25 I&N Dec. 103 (BIA 2009). However, USCIS’s policy manual provides that: “In cases where a removal
order has been issued to an ‘arriving alien’ but not executed, USCIS generally does not exercise favorable
discretion…[T]he removal order should be considered a significant adverse factor and any denial of
adjustment may include the grounds cited in the removal order.” 7 USCIS-PM, Pt. A, Ch. 9 ¶B.2 [also
permitting USCIS to consult with ICE regarding withdrawing or rescinding the removal order from EOIR].
They may also seek AOS before the IJ but only if they are returning on an advance parole, USCIS has
denied their AOS, they are placed in removal proceedings, and they seek review of a previously filed
AOS. 8 CFR §§245.2(a)(1), 245.2(a)(5)(ii), 1240.11(a)(1), 1245.2(a)(1), 1245.2(a)(5)(ii); 71 FR 27585–92
(May 12, 2006) [withdrawing 8 CFR §§245.1(c)(8), 1245.1(c)(8), which barred arriving aliens from AOS]; 7
USCIS-PM, Pt. A, Ch. 3 ¶D [discussing jurisdiction of USCIS and IJ regarding arriving aliens seeking to
adjust]. But see Brito v. Mukasey, 521 F.3d 160, 164–68 (2d Cir. 2008) [IJ had no jurisdiction to address
AOS that was filed 5 years after advance parole and was not the original denied AOS]Chambers v.
Mukasey, 520 F.3d 445, 450–51 (5th Cir. 2008) [same]. The regulation limiting AOS to USCIS for arriving
aliens has been upheld. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244 (11th Cir. 2008) [8 CFR §1245.2(a)(1),
limiting arriving aliens’ AOS in most cases to USCIS was valid under Chevron because it did not eliminate
AOS but merely limited the forum for it]; Vakker v. U.S. Att’y Gen., 519 F.3d 143, 148–50 (3d Cir. 2008)
[upholding denial of remand of AOS to IJ for arriving alien under new regulations that require application
to be filed with USCIS]; Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009) [DHS changed regulations to
prohibit IJs from conducting AOS hearings for arriving aliens except in limited circumstances]; Matter of
Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009) [Matter of Artigas, 23 I&N Dec. 99 (BIA 2001)
superseded by new regulations, 8 CFR §245.2(a)(1) and 8 CFR §1245.2(a)(1)]. See also Jiang v.
Gonzales, 425 F.3d 649, 652–53 (9th Cir. 2005) [person who first entered TWOV was arriving alien, even
though he subsequently obtained advance parole, was therefore ineligible to adjust before the IJ under
the Chinese Student Protection Act]. Some courts have held that it is an abuse of discretion for an IJ/BIA
to deny a motion to reopen or motion to continue to allow the filing and processing of AOS before USCIS.
Kalilu v. Mukasey, 548 F.3d 1215, 1218 (9th Cir. 2008) [BIA abused its discretion by denying motion to
reopen contrary to Matter of Velarde-Pacheco]; See also Sheng Gao Ni v. BIA, 520 F.3d 125 (2d Cir.
2008) [BIA’s denial of motion to reopen because IJ had no jurisdiction to adjust arriving aliens “even if
technically accurate,” does not adequately discharge BIA’s duty to consider the facts and offer an
explanation where reopening was sought to terminate proceedings and go before USCIS]; 71 FR 27589–
90 (May 12, 2006) [“It will ordinarily be appropriate for an immigration judge to exercise his or her
discretion favorably to grant a continuance or motion to reopen in the case of an alien who has submitted
a prima facie approvable visa petition and adjustment application in the course of a deportation hearing”].
But see Matter of Yauri, 25 I&N Dec. 103, 107–10 (BIA 2009) [BIA/IJ have no authority to reopen or grant
stays of removal where underlying application such as AOS for arriving alien is not within its jurisdiction].
Page 258
7.b. SAW Program—A person who adjusted through the SAW program is still subject to removal. Matter of
Jimenez-Lopez, 20 I&N Dec. 738 (BIA 1993) [distinguishing INA §245 adjustment].
8. Physical Removal—INA §§241(a) & (b), 8 USC §§1231(a) & (b). The AG “shall” remove persons found
inadmissible within 90 days of a final order. INA §241(a)(1). If not removed within 90 days, and if no
exceptions under INA §§241(a)(1)(B) & (C), the person should be released and placed under an order of
supervision. 8 CFR §241.4. The Supreme Court has ruled that under 8 USC §1231(a)(6), inadmissible
persons may not be incarcerated beyond a reasonable time after the 90-day period if removal is not
reasonably foreseeable. Clark v. Martinez, 543 U.S. 371 (2005) [following Zadvydas and finding that
inadmissible persons must be released within 6 months after it is determined that removal is not reasonably
foreseeable]; Morales-Fernandez v. INS, 418 F.3d 1116, 1122–25 (10th Cir. 2005) [post-Clark, impermissible
to hold Cuban beyond 6-month period]; Rosales-Garcia v. Holland, 322 F.3d 386, 403–15 (6th Cir. 2003)
[under Zadvydas and the Fifth Amendment the period of post-removal detention has an implicit reasonable
time limitation]. But see also Carrera-Valdez v. Perryman, 211 F.3d 1046 (7th Cir. 2000) [rejecting
constitutional argument because of Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 210 (1953)]. For a
detailed discussion of physical removal, see in this chapter Section X.V (p.695), infra.
The person removed should be taken to the country where he or she boarded the vessel or aircraft. INA
§241(b)(1)(A), 8 USC §1231(b)(1)(A). If that is not possible, the person may be removed to any other location
in the following order: (1) country of which person is citizen, subject, or national; (2) country of birth; (3)
country where person has residence; or (4) any other government that will accept person. INA §241(b)(1)(C),
8 USC §1231(b)(1)(C). If U.S. tries to remove person to another willing country, it must make prior inquiry and
obtain written assurance from the country. Amanullah v. Cobb, 862 F.2d 362 (1st Cir. 1988). Where person
only has minimal connection to a country and cannot obtain asylum, IJ is precluded from ordering respondent
removed to that country. Shuaibu v. Gonzales, 425 F.3d 1142, 1144–45 (8th Cir. 2005) [where IJ denied
asylum and respondent had no connection to Liberia, he could not be removed there]. But see generally
Jama v. ICE, 543 U.S. 335, 338–52 (2005) [the designations of potential countries of removal under 8 USC
§1231(b)(2)(E)(i)–(vi) do not require the receiving countries’ consent, unlike subsection (vii) of §1231(b)(2)
(E), which specifically requires consent]; Jama v. Gonzales, 431 F.3d 230 (5th Cir. 2005) [following Supreme
Court decision in Jama and allowing removal to Somalia even if country has not accepted them].
9. Stay of Removal—INA §241(c)(2), 8 USC §1231(c)(2). The AG may stay removal of a person on board a
vessel or aircraft if it is not practical or proper or if the person is needed to testify in a prosecution. INA
§241(c)(2)(A).
10. Appeals; Motions to Reopen—A person can appeal even if physically removed from the U.S. 8 CFR
§1003.4 [not barred from review if arriving alien under 8 CFR §1001.1q]; Matter of Keyte, 20 I&N Dec. 158
(BIA 1990); Matter of Kennedy, 13 I&N Dec. 242 (BIA 1969). But a person may not file a motion to reconsider
or reopen if physically removed. 8 CFR §§1003.23(b)(1), 1003.2(d); Matter of Armendarez, 24 I&N Dec. 646
(BIA 2008) [BIA lacked jurisdiction to consider sua sponte a motion to reopen proceedings to seek INA
§212(c) relief due to INS v. St. Cyr, 67 months after respondent was removed]; Matter of Okoh, 20 I&N Dec.
864 (BIA 1994). However, the circuit courts are now split on whether a person removed from the United
States may file a motion to reopen. For a thorough discussion regarding whether a person who files a motion
to reopen and is out of the U.S. may pursue the motion, see “Departure Bar, ”Chapter 9, Section XIII.F
(p.1758), infra.
V. DEPORTATION GROUNDS
A. Inadmissible at Time of Entry or Adjustment of Status—INA §237(a)(1)(A), 8 USC §1227(a)(1)(A).

Incorporates all grounds of inadmissibility. Applies to inadmissibility at the time of entry or adjustment of status.
Asentic v. Sessions, 873 F.3d 974, 980 (7th Cir. 2017) [person who made material misrepresentation on his
refugee application to gain entry was inadmissible when he arrived]; Abdulahad v. Holder, 581 F.3d 290, 295
(6th Cir. 2009) [commission of marriage fraud at adjustment is a basis for removal under this section because of
inadmissibility due to a material misrepresentation under INA §212(a)(6)(C)(i)] Ahmed v. Lynch, 804 F.3d 237
(2d Cir. 2015) [reversed deportation for committing fraud on entry because while government claimed
respondent was admitted as an F-2B but had been Page 259 married it failed to consider that one of his
marriage certificates demonstrated a date after entry]; Inadmissibility at time of entry must be at the time the
person entered the U.S. and not at the time of the removal hearing. Francis v. Gonzales, 442 F.3d 131, 139–41
(2d Cir. 2006) [court looked to deportation statute for drugs at the time of entry (which did not include admission
of a drug violation as a ground of inadmissibility), as well as the definition of conviction (which at the time was
under the narrower Matter of Ozkok standard), to determine that respondent was not inadmissible when he
sought entry]. The burden of proof is placed squarely upon the government. Alfaro v. U.S. Att’y Gen., 862 F.3d
1261 (11th Cir. 2017) [government failed to prove that respondent committed a material misrepresentation when
he stated that he was detained in make-shift jail by fellow Contras because such detention could not be
considered an arrest in ordinary language]. A charge based on DHS’s “reason to believe” that a person was a
drug trafficker on entry will not be sustained where the officer did not know at the time of entry that the person
was a trafficker even if the person acknowledged it after entry. Matter of Rocha, 20 I&N Dec. 944 (BIA 1995). But
see Matter of Casillas-Topete, 25 I&N Dec. 317 (BIA 2010) [modified Matter of Rocha to permit “reason to
believe” charge where any DHS officer knew or had reason to believe because an NTA issued due to applicant’s
conviction before departure, even if inspecting officer did not know about conviction or NTA]. A person who
enters with a valid visa may be deported under this section for a previous conviction unless he can show
conviction was waived. Zavaleta-Gallegos v. INS, 261 F.3d 951 (9th Cir. 2001) [admission as LPR does not bar
removal proceedings under this section for prior crime absent a showing that a waiver for conviction was granted
by the consulate]. Under this section the BIA has found the admissibility for AOS is the time the AOS application
is approved, not filed. Perez-Enriquez v. Ashcroft, 411 F.3d 1079 (9th Cir. 2004) [upholding IJ decision that
inadmissibility at time of AOS relates to time of approval of AOS, not to time of filing]. But in the view of one
circuit, AOS is not an admission for purposes of this statute and the documentary requirements of INA §212(a)
(7) which are cross-referenced under this deportation statute do not apply to a person seeking AOS. Marques v.
Lynch, 834 F.3d 549 553-62 (5th Cir. 2016) [where respondent committed marriage fraud to obtain AOS after he
lawfully entered, the government could not seek his deportation under INA §237(a)(1)(A) because that section
incorporates INA §212(a)(7) and INA §212(a)(7) does not apply to a person who seeks AOS only a person
seeking entry].
B. Other Status Violations
1. Present in U.S. in Violation of INA or Any Other U.S. Law, or with Revoked NIV—INA §237(a)(1)(B), 8
USC §1227(a)(1)(B), 8 CFR §1.3 (defining lawfully present for purposes of Social Security); Matter of Ruis,
18 I&N Dec. 320 (BIA 1982). Includes persons whose visas were revoked pursuant to INA §221(i), and all
status violations, including person who stays longer than time permitted on I-94. Zerrei v. Gonzales, 471 F.3d
342, 346 (2d Cir. 2006) [where counsel did not object to admission of a copy of respondent’s passport, it
alone was sufficient to establish deportability as an overstay]. But see Matter of R-D-, 24 I&N Dec. 221 (BIA
2007) [overstay charge dismissed where person went to Canada, applied for asylum, and after several years
returned to the U.S. under the U.S.-Canadian Reciprocal Agreement because he was not overstay but an
arriving alien seeking admission upon return]. Includes each entry. Includes EWI. Farquharson v. U.S. Att’y
Gen., 246 F.3d 1317, 1319–22 (11th Cir. 2001) [drug smuggler whose plane crashed was EWI under former
section]. Includes LPR who was previously EWI and re-entered through inspection checkpoint in an attempt
to nullify the EWI charge in an OSC. Gunaydin v. INS, 742 F.2d 776 (3d Cir. 1984). But see Bonetti v. Rogers,
356 U.S. 691 (1958). EWI also includes a person who evades inspection by claiming she is a USC. Reid v.
INS, 420 U.S. 619, 624 (1975) (and cases cited therein) [person who enters by falsely claiming U.S.
citizenship is excludable under former §212(a)(19) and deportable as one who entered without inspection];
Ramsay v. INS, 14 F.3d 206, 211 n.6 (4th Cir. 1994). However, all other misrepresentations that result in a
procedurally regular entry are not considered EWI. Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). After
Sept. 30, 1996, a person who is EWI is subject to expedited removal from the U.S. unless she has
continuously been in U.S. for 2 years. INA §235(b)(1)(A)(iii).
2. Failure to Maintain Nonimmigrant Status—INA §237(a)(1)(C), 8 USC §1227(a)(1)(C). This section is

divided into two parts. The first part makes failure to maintain NIV status a deportable offense. INA §237(a)
(1)(C)(i). The second part makes it a deportable offense if a person fails to comply with the terms, conditions,
and controls imposed under INA §212(g), concerning waivers for persons with communicable diseases or
physical or mental disorders. INA §237(a)(1)(C)(ii). This Page 260 second part requires a certificate from
HHS certifying that the person has failed to comply with the terms, conditions and controls.
Failure to maintain NIV status encompasses all conditions of status, and includes a student who fails to
maintain a full course of study or transfers schools without permission, as well as a temporary worker who
has changed jobs without authorization. Incarceration of a nonimmigrant visitor is deemed a breach of status
because status cannot be pursued in jail. Matter of A-, 6 I&N Dec. 762 (BIA 1955). See also Matter of Halabi,
15 I&N Dec. 105 (BIA 1974); Matter of Siffre, 14 I&N Dec. 444 (BIA 1973); Matter of Neely & Whylie, 11 I&N
Dec. 864 (BIA 1966). Conviction of a student that does not interrupt studies is not necessarily a violation.
Matter of C-, 9 I&N Dec. 100 (BIA 1960). But see 8 CFR §214.1(g), [making certain convictions violations of
any nonimmigrant status].
Persons who overstay the time granted upon entry are also subject to removal even if they overstay during
the pendency of removal proceedings. Matter of Halabi, 15 I&N Dec. 105 (BIA 1974). But see Westover v.
Reno, 202 F.3d 475, 481–82 (1st Cir. 2000) [the practice of charging persons with overstaying when they
remain in U.S. to defend against removal could violate due process].
Other regulatory grounds for asserting a failure to maintain NIV status include: (1) willful failure to provide full
and truthful information requested by the Service, even if not material. 8 CFR §214.1(f), but see Romero v.
INS, 39 F.3d 977 (9th Cir. 1994) [striking down regulation because it exceeded the AG’s authority by including
nonmaterial misrepresentations]; (2) willful failure to comply with registration requirements, 8 CFR §214.1(f),
and failure to file a change-of-address under INA §266(b); Failure to provide biometric and other information
upon departure may lead to a determination that the individual failed to maintain status. 69 FR 467, 470 (Jan.
5, 2004); (3) criminal activity where a person is involved in a crime of violence for which a sentence of one
year or more is imposed, 8 CFR §214.1(g); and (4) unauthorized employment. 8 CFR §214.1(e).
The submission of a timely filed but yet unapproved extension may not bar a INA §237(a)(1)(C) charge.
Matter of Teberen, 15 I&N Dec. 689 (BIA 1976). But see Matter of Dacanay, 16 I&N Dec. 238 (BIA 1977)
[subsequently approved H-1 barred deportation even where person worked without authorization for second
employer before new petition was approved]. But see Ali v. Mukasey, 542 F.3d 1180 (7th Cir. 2008) [H-1B
that began employment with new company before new petition was filed failed to maintain NIV status;
removal order upheld]. See also INA §212(a)(9)(B)(iv) [tolling of unlawful status for 120 days upon timely
filing extension or C/S] and 8 CFR §274a.12(b)(20) [automatic extension of work authorization for 240 days
while extension is pending]. A person placed in removal proceedings however may not obtain an extension of
status. 8 CFR §214.1(c)(4)(iv). See also Westover v. Reno, 202 F.3d 475 (1st Cir. 2000).
In addition, the timely filing of an AOS application does not place a person in lawful status if his underlying
status expires while the AOS is pending. Dhuka v. Holder, 716 F.3d 149 (5th Cir. 2013) [An L-1 who filed AOS
and whose stay expired during AOS was not in lawful status under 8 CFR §245.1(d)(1) during AOS period for
purposes of INA §245(k) when AOS was subsequently denied]; Chaudhry v. Holder, 705 F.3d 289 (7th Cir.
2013) [rejecting “stacking” AOS applications for INA §245(k) purposes on the theory 8 CFR §245.1(d)(1)
defines “lawful immigration status” and the definition does not extend NIV status by virtue of filing an AOS
application].
In addition, even authorized employment may not confer lawful status. In the view of at least one court, the
automatic extension of employment authorization for 240 days upon filing a timely request for extension, 8
CFR §274a.12(b)(20), does not confer lawful status under 8 CFR §1245.1(d)(1)(ii). Bokhari v. Holder, 622
F.3d 357 (5th Cir. 2010) [applicant who filed for AOS within 6 months of the denial of his automatic (240 day)
extended work authorization, but more than one year from the time his L-1A expired, was not in lawful status
under §1245.1(d)(1)(ii) and therefore was ineligible to AOS due to INA §§245(c)(2), 245(k)(2)(A)]. But see El
Badrawi v. DHS, 579 F.Supp.2d 249, 276-77 (D. Conn. 2008) [employment authorization under 8 CFR
§274a.12(b)(20) results in lawful status] and El Badrawi v. U.S., 787 F.Supp.2d 204, 213-30 (D. Conn. 2011)
[reaffirming its position that El Badrawi was in legal status when he timely filed for employment authorization
and granting summary judgment on his false arrest claim under the FTCA for arresting him while extension of
status was pending]. Page 261
The grant of indefinite voluntary departure pre-IIRIRA did not bar deportation under this section, where VD
was granted until immigrant visa was available and respondent failed to acquire visa when it was available.
Matter of Balao, 20 I&N Dec. 440 (BIA 1992).
3. Termination of Conditional Permanent Residence—INA §237(a)(1)(D), 8 USC §1227(a)(1)(D). Applies to

conditional residents under INA §216 (spouses and children) and INA §216A (investors and their spouses
and children) who have had their status terminated. But see Gomez v. Lynch, 831 F.3d 652 (5th Cir. 2016)
[distinguishing lawful admission for AOS and unlawful status for purposes of removal in its interpretation of
the termination provision under 8 CFR §245.2(u)(4)].
4. Encouraged, Induced, Assisted, Abetted, or Aided Any Other Alien to Enter or to Try to Enter U.S. in
Violation of Law at Time of Any Entry or Within 5 Years of Any Entry—INA §237(a)(1)(E), 8 USC
§1227(a)(1)(E). A conviction is unnecessary to sustain the charge, but a conviction may be sufficient alone to
sustain the charge. Matter of Martinez-Serrano, 25 I&N Dec. 151 (BIA 2009) [a conviction for aiding and
abetting two aliens to elude and evade inspection in violation of 8 USC §1325(a)(2) is sufficient to sustain the
charge and the IJ could have also considered the underlying facts of the respondent’s conviction if it were
necessary]; Santos-Sanchez v. Holder, 744 F.3d 391 (5th Cir. 2014) [noted Martinez-Serrano and held that,
after review of the criminal records, aiding and abetting a violation of §1325(a) was a deportable offense for
alien smuggling]; Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 678–83 (9th Cir. 2005) [smuggling not
limited solely to persons who participate in physical border crossing but reversing removal order against
person who transported aliens because DHS failed to prove smuggling under Woodby standard, where
limited evidence was not subject to cross-examination and was insufficiently reliable]. Under the previous
statute, INS was required to establish that the smuggling was “for gain.” Hernandez-Garza v. INS, 882 F.2d
945 (5th Cir. 1989) [reversing deportation order where “for gain” not established by Woodby standard.
Conviction under 8 USC §1324(a) does not establish “for gain”]; Pryce v. INS, 568 F.2d 278 (2d Cir. 1978)
[same]; Ribeiro v. INS, 531 F.2d 179 (3d Cir. 1976) [same]. Although the “for gain” requirement has been
eliminated, there is a waiver if the person smuggled was the spouse, parent, son, or daughter of the LPR
subject to deportation. INA §237(a)(1)(E)(iii), 8 USC §1227(a)(1)(E)(iii). The “at the time of” language was
added by IIRIRA §351. Matter of Farias, 21 I&N Dec. 269 (BIA 1996). The waiver does not apply where
brothers or other close family members are smuggled. Perez-Oropeza v. INS, 56 F.3d 43 (9th Cir. 1995)
[rejecting equal protection challenge]. There is also a waiver for persons who are eligible under the family
reunification provisions of IMMACT90 §301(b)(1). INA §237(a)(1)(E)(ii).
5. Marriage Fraud—INA §237(a)(1)(G), 8 USC §1227(a)(1)(G), repeals INA §241(c) [IMMACT90 §602(b)(1)],
and retains as grounds of deportation:
5.a. Termination or annulment of a marriage, where the marriage was entered into less than 2 years prior to
entry and terminated within 2 years after entry, unless the alien can establish that the marriage was not
entered into for the purpose of evading the immigration laws; Rodriguez v. INS, 204 F.3d 25 (1st Cir.
2000) [state court judgment ending marriage that was specifically based upon a finding of fraudulent intent
to evade the immigration laws was a “presumption plus” that was not sufficiently rebutted].
5.b. Failure of the alien to fulfill marital agreement. Nakamoto v. Ashcroft, 363 F.3d 874 (9th Cir. 2004)
[jurisdiction to review decision to deport for marriage fraud under INA §237(a)(1)(G)(ii) not precluded by
INA §242(a)(2)(B)(ii), but there was substantial evidence to support AG’s decision].
C. Economic Reasons
1. Public Charge [INA §237(a)(5), 8 USC §1227(a)(5)]—A person is deportable if she has, within 5 years of
entry, become a public charge from causes not affirmatively shown to have arisen since entry. A person is not
automatically a public charge by virtue of receiving a public benefit. Matter of B-, 3 I&N Dec. 323 (BIA and AG
1948) BIA has defined public charge as (1) a state imposed charge for services that the recipient is legally
obligated to pay; (2) demand for payment; and (3) failure to pay. Matter of V-, 2 I&N Dec. 78 (BIA 1944);
Matter of A-, 19 I&N Dec. 867 (Comm. 1988). If there is no reimbursement requirement, the person cannot be
a public charge. Demand for repayment must be within the 5 years. Matter of L-, 6 I&N Dec. 349 (BIA 1954).
The INS has provided field guidance on public charge. 64 FR 28689–93 (May 26, 1999). Page 262
2. Institutionalized Persons—The former ground of deportation of a person who became institutionalized at

public expense because of a mental disease, defect, or deficiency within 5 years after entry, Matter of
Kowalski, 10 I&N Dec. 159 (BIA 1963), has been eliminated.
D. Security and Political-Related Grounds [INA §237(a)(4), 8 USC §1227(a)(4)]
1. In General—Under INA §237(a)(4)(A), 8 USC §1227(a)(4)(A), an alien is deportable if he has engaged, is

engaged, or at any time after entry has engaged in:
Any activity to violate any law of the U.S. relating to espionage, sabotage, or laws prohibiting export of
goods, technology, or sensitive information from the U.S.; Matter of Luis-Rodriguez, 22 I&N Dec. 747
(BIA 1999) [broadly reading former §241(a)(4)(A)(i) to include violation of 50 USC §851 where person
spied on anti-Castro organization for Cuba].
Any other criminal activity that endangers public safety or national security; or
Any activity, a purpose of which is to oppose, control, or overthrow the U.S. government by force,
violence, or other unlawful means.
In Matter of Tavarez Peralta, 26 I&N Dec. 171, 173-77 (BIA 2013) the Board addressed, for the first time in a
published opinion, the “public safety” provision in INA §237(a)(4)(A)(ii). The BIA held: (1) a conviction is
unnecessary because the statute addresses “activity;” and therefore the categorical approach is not
appropriate (2) the statute must be interpreted “narrowly” and a “single-victim crime,” no matter how heinous,
such as rape or murder, would not be covered; (3) the “public safety” provision is limited to activity “where the
public at large is endangered;” and (4) the “totality of the circumstances” approach should be applied to
determine what criminal conduct would be included. In Tavarez Peralta the Board determined that “multiple
attempts to hit a police helicopter pilot with a laser is a crime that endangers public safety.”
2. Terrorist Activities—Under INA §237(a)(4)(B), 8 USC §1227(a)(4)(B), any alien described in paragraphs
INA §212(a)(3)(B) or §212(a)(3)(F) [association with terrorists] is deportable. The REAL ID Act of 2005,
§105(a), broadened the grounds of deportation by making them co-extensive with the grounds of
inadmissibility. It also made them largely retroactive, though only to persons in removal (not deportation)
proceedings. American Acad. of Religion v. Napolitano, 573 F.3d 115, 128 (2d Cir. 2009). Respondent’s state
of mind may always be an issue in these cases, see Daneshvar v. Ashcroft, 355 F.3d 615, 627–29 (6th Cir.
2004) [reversing BIA finding of deportability where it failed to consider respondent’s state of mind under the
USA PATRIOT Act standard]. But see McAllister v. U.S. Att’y Gen., 444 F.3d 178, 185–89 (3d Cir. 2006)
[upholding deportation and rejecting vagueness challenge to terrorist definition under §212(a)(3)(B)(iii)(V)(b)
and argument that the terrorist organization definition under §212(a)(3)(B)(iv) requires a person to act on his
own or with a terrorist organization as opposed to any organization]; Matter of S-K-, 23 I&N Dec. 936, 942 n.5
(BIA 2006) [Chin National Front (Burma) is a terrorist organization; contributions to the organization need not
be for terrorist purposes, a contribution of $685 over 11-months was sufficient “material” support for purposes
of INA §212(a)(3)(B)(iv)(VI)]; cf. Matter of S-K-, 24 I&N Dec. 289 (AG 2007) [maintaining precedential value
of BIA decision but remanding in light of DHS decision to grant a waiver under INA §212(d)(3)(B)(i) and not to
apply the “material support” bar on asylum to certain persons providing support to the CNF]. Subsequent to
the AG’s decision, the Secy. of DHS and the Secy. of State were given broad powers to waive the material
support provision under the Consolidated Appropriations Act, 2008, PL 110-161 Div. J, §691(a), 121 Stat.
1844, 2364–65 and the Act itself exempted certain groups, including the CNF. In light of the Act DHS granted
respondent asylum and the BIA vacated its grant of deferral of removal. Matter of S-K-, 24 I&N Dec. 475 (BIA
2008). For an extensive discussion re terrorist activity, see in this chapter ¶ III.I.2 (p.173), supra.
3. Foreign Policy—INA §237(a)(4)(C), 8 USC §1227(a)(4)(C), provides that an alien is deportable if the Secy.
of State has reasonable grounds to believe that his or her presence or activities in the U.S. would have
potentially serious adverse foreign policy consequences for the U.S.
3.a. An official of a foreign government or a purported government, or a candidate for election immediately
preceding the election, cannot be deported solely because of his past, current or expected beliefs,
statements, or association if such matters are lawful within the U.S. Page 263
3.b. All other persons also cannot be deported for such beliefs, statements, or associations unless the Secy.
of State personally determines the alien’s continued presence would compromise a compelling U.S.
foreign policy interest. If the Secy. makes such determination, s/he must timely notify the Senate and
House Judiciary and Foreign Relations Committees.
3.c. Regarding this ground, the Conference Report accompanying IMMACT90 noted that:
It is the intent of the conference committee that this authority would be used sparingly and not merely
because there is a likelihood that an alien will make certain remarks about the United States or its
policies.
Furthermore, the conferees intend that the ‘compelling foreign policy interest’ standard be interpreted
as a significantly higher standard than the general ‘potentially serious adverse foreign policy
consequences’ standard.… The fact that the Secretary of State personally must inform the relevant
Congressional committees when a determination of excludability is made under this provision is further
indication that the conferees intend that this provision be used only in usual circumstances.
H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess. 129 (1990).
The BIA has interpreted the statute to require only that the Secy. of State set forth “a facially reasonable
and bona fide basis” for a determination of adverse foreign policy consequences. Matter of Ruiz-Massieu,
22 I&N Dec. 833 (BIA 1999). The Board regarded its role as “ministerial” as “neither the [AG] nor her
delegates have a role” in the determination. Id at 842. The BIA also sought to limit discovery stating “there
is no prejudice to the respondent if he is not allowed to cross-examine the Secretary regarding the
contents of the letter” the Secy. submits. Id. at 845 n.13.
4. Nazi, Genocide, or Commission of Any Act of Torture or Extrajudicial Killing [INA §237(a)(4(D), 8 USC
§1227(a)(4)(D); S. Rep. No. 108-209, 2003 WL 22846178]—Nazi war criminals, persons who have engaged,
assisted or otherwise participated in genocide or persecution of others, or committed acts of torture or
extrajudicial killing as defined in INA §§212(a)(3)(E)(i)–(iii) are removable. The provisions are read broadly
and do not require personal involvement as “command responsibility” through failure to prevent and stop
subordinates or failure to investigate their persecution and torture of others is sufficient. Matter of Vides
Casanova, 26 I&N Dec. 494 (BIA 2015) [finding former head of the El Salvador National Guard and later
head of the Armed Forces subject to removal under this section for violation of 212(a)(3)(E)(iii) in that he
failed to investigate, failed to stop, and participated in torture]; Matter of D-R-, 25 I&N Dec. 445, 451-56 (BIA
2011) [law incorporates command responsibility concepts in the “otherwise participated” language, the law is
retroactive, and the IJ could base his findings that respondent knew or had reason to know that Bosnian
Muslims who were stopped by a patrol under his command would be subject to summary execution based
upon reasonable inferences from direct and circumstantial evidence]; Naujalis v. INS, 240 F.3d 642 (7th Cir.
2001) [guard of railway facility under German direction, member of battalion involved in execution of Jews];
Hammer v. INS, 195 F.3d 836 (6th Cir. 1999); Kalejs v. INS, 10 F.3d 441 (7th Cir. 1993). Fraud or
misrepresentation need not be proven to deport under the Holtzman Amendment. Tittjung v. Reno, 199 F.3d
393, 397 (7th Cir. 1999). Courts have upheld on collateral estoppel grounds, removal based on facts
established in denaturalization proceedings. Firishchak v. Holder, 636 F.3d 305 (7th Cir. 2011)
[denaturalization was used in removal proceedings of Ukrainian Auxiliary Police member who persecuted
Jews]; Szehinskyj v. U.S. Att’y Gen., 432 F.3d 253 (3d Cir. 2005) [former concentration camp guard and SS
member who was denaturalized]; Dailide v. U.S. Att’y Gen., 387 F.3d 1335, 1342–43 (11th Cir. 2004)[record
of denaturalization used to determine removability of Lithuanian who persecuted Jews].
5. Recipient of Military-Type Training [INA §237(a)(4)(E), 8 USC §1227(a)(4)(E)]—A person who receives
military-type training from or on behalf of an organization that at the time was a terrorist organization as
defined in §§212(a)(3)(B)(vi)(I) & (II). Includes “training in means or methods that can cause death or serious
bodily injury, destroy or damage property, or disrupt services to critical infrastructure, or training on the use,
storage, production, or assembly of any explosive, firearm, or other weapon, including any weapon of mass
destruction” as defined in section 18 USC §2332a(c)(2).
6. Severe Violation of Religious Freedom [INA §237(a)(4)(E), 8 USC §1227(a)(4)(E)]—A person described in
INA §212(a)(2)(G) [foreign government official who was responsible for or directly carried out, at any time,
particularly severe violations of religious freedom] is deportable. Page 264
7. Recruitment of Child Soldiers—A person who has engaged in the recruitment or use of child soldiers in
violation of 18 USC §2442 is deportable. INA §237(a)(4)(F); 8 USC §1227(a)(4)(F). A person is deemed to
have violated §2442 if he recruits, enlists or conscripts a person under 15 to participate in combat or military
activities related to combat, or direct support for such combat or activities.
E. Failure to Register and Falsification of Documents [INA §237(a)(3), 8 USC §1227(a)(3)]
1. Change of Address [INA §237(a)(3)(A), 8 USC §1227(a)(3)(A)]—Failure to comply with INA §265 is a
deportable act unless failure was reasonably excusable or not willful. If person is in DHS custody, DHS has
responsibility to notify the immigration court. 8 CFR §1003.19(g); Memo, Hamilton, Assoc. Gen. Counsel
(HQCOU 50/10.2) (Apr. 13, 1998), reprinted in 75 No. 17 Interpreter Releases 627, 636 (May 4, 1998). Form
AR-11 should be used to notify DHS or the AG of a change of address. It may now be done electronically at
http://www.uscis.gov/AR-11. Form EOIR-33 is also used, if in removal proceedings, to notify the immigration
court.
2. Failure to Register; Falsification of Documents—INA §237(a)(3)(B). Documents that constitute evidence

of registration are found at 8 CFR §264.1(b) [including an admission or parole stamp in a foreign passport].
An alien is deportable if at any time she is convicted, regardless of the sentence imposed, for violating (a)
INA §266(c) or §36(c) of the Alien Registration Act; (b) the Foreign Agents Registration Act (22 USC §611 et
seq.); or (c) 18 USC §1546 (relating to fraud and misuse of visas and “other entry documents”). Gourche v.
Holder, 663 F.3d 882, 884-86 (7th Cir. 2011) [person is deportable for fraud in I-751 because the language
“other entry documents” is descriptive and not limiting]
3. Document Fraud—Final administrative order for violating INA §274C (document fraud) subjects party to
deportation. INA §237(a)(3)(C)(i), 8 USC §1227(a)(3)(C)(i). A waiver is available for LPRs if there was no
previous civil monetary penalty under §274C and the offense was incurred solely to assist or support the
LPR’s spouse or child (and no other person). No jurisdiction to review the denial of the waiver. INA §237(a)(3)
(C)(ii).
4. False Claim to Citizenship [INA §237(a)(3)(D), 8 USC §1227(a)(3)(D)]—A person who falsely represents or
has falsely represented himself to be USC to obtain a benefit under INA, federal, or state law is removable.
Dwumaah v. U.S. Att’y Gen., 609 F.3d 586 (3d Cir. 2010) [false claim may be proved through circumstantial
evidence and IJ could draw negative inference from petitioner’s failure to submit handwriting exemplar to
compare to student loan form]; Valenzuela-Solari v. Mukasey, 551 F.3d 53 (1st Cir. 2008) [upholding removal
despite respondent’s claim that his statements to CBP were unreliable because of limited English]. Applies to
representations made on or after Sept. 30, 1996. IIRIRA §344(c).
There is an exception to a false claim to USC if: (1) the person’s parents were or are USCs; (2) he
permanently resided in the U.S. prior to 16; and (3) he reasonably believed at the time of the statement that
he was a USC. INA §237(a)(3)(D)(ii). See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063–64 (9th Cir. 2008)
[exception did not apply because one parent was not a USC]. The exception is applied retroactively and
applies to representations made on or after Sept. 30, 1996. Section 201(b)(2) of the Child Citizenship Act of
2000, PL 106-395, 114 Stat. 1631. See also Memo, Yates, Deputy Exe. Assoc. Comm. Operations, USCIS,
HQ 70/33 (May 7, 2002), AILA Doc. No. 05030768[criteria for determining a false claim to USC and whether
an exception or prosecutorial discretion applies].
False statement on an I-9 that a person is a “citizen or national” may be a basis to find a person inadmissible,
deportable, or ineligible for AOS. See Chapter 12, ¶ I.D.4 (p.2069), infra. False claim may be made in private-
sector employment and need not be in written form.Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007) [false
claim to obtain private-sector employment is not a defense; removability established where respondent
acknowledged working without authorization by stating he was USC, and DHS provided a document from an
employer where he checked off box that stated he was USC or LPR]. But see Hassan v. Holder, 604 F.3d
915, 928-29 (6th Cir. 2010) [reversed finding of deportability where DHS failed to establish that the
misrepresentation was “for any purpose or benefit” under some law]; Kirong v. Mukasey, 529 F.3d 800, 802–
03 (8th Cir. 2008) [government failed to sustain burden of proving deportability where F-1 student checked I-9
“citizen or national” box but petitioner similarly could not establish burden of proving admissibility for
purposes of AOS]; Page 265 U.S. v. Karaouni, 379 F.3d 1139 (9th Cir. 2004) [defendant who checked I-9
“citizen or national” box could not be convicted under 18 USC §911 for a false claim to USC].
F. Unlawful Voting [INA §237(a)(6), 8 USC §1227(a)(6); 22 CFR §40.104]—Any person who has voted in violation
of any federal, state, or local constitutional provision, statute, ordinance, or regulation is deportable; conviction is
not required. Applies to voting that occurred before, on, or after Sept. 30, 1996. IIRIRA §347(c). There is an
exception for unlawful voting if: (1) the voter’s parents were or are USCs; (2) he permanently resided in the U.S.
prior to 16; and (3) he reasonably believed at the time of the voting that he was a USC. INA §237(a)(6)(B).
Exception applies retroactively and applies to voting occurring before, on, or after Sept. 30, 1996. Section 201(b)
(1) of the Child Citizenship Act of 2000, PL 106-395, 114 Stat. 1631. Prior to initiating proceedings, a DHS agent
is supposed to determine whether the individual acted knowingly or willfully including the extent of the
applicant’s knowledge of election laws. Depending upon the federal, state, or local law that was violated, DHS
may be required to prove that the respondent acted knowingly or willfully. To determine whether a respondent
knowingly or willfully violated a voting statute adjudicating officers should determine: “(1) how, when and where
the applicant registered to vote and/or voted; (2) the extent of the applicant’s knowledge of the election laws; (3)
whether the applicant received any instructions, or was questioned verbally about his or her eligibility to vote; (4)
who provided the applicant with information about election laws or his or her eligibility to vote; (5) whether the
election registration form and/or voting ballot: (a) contains a specific question asking if the applicant is a U.S.
citizen; (b) requires the applicant to declare under penalty of perjury that he or she is a U.S. citizen; or (c)
requires the applicant to be qualified to vote and lists specifically the requirement of U.S. citizenship elsewhere
on the form.”Memo, Yates, Deputy Exe. Assoc. Comm. Operations, USCIS, HQ 70/33 (May 7, 2002), AILA Doc.
No. 05030768 [criteria to be applied for a willful or knowing violation where the federal, state, or local authority
requires such a violation; permitting exercise of prosecutorial discretion under the Commissioner’s Nov. 17, 2000
memo (AILA Doc. No. 00112702)]. If DHS places the person in removal proceedings, it must prove, by the
Woodby standard, that a violation occurred under the federal or state statute. McDonald v. Gonzales, 400 F.3d
684 (9th Cir. 2005) [reversing removal where the IJ applied a civil standard to a violation of the Hawaiian voting
fraud statute and the government failed to prove a violation was knowing]. But see Matter of Fitzpatrick, 26 I&N
Dec. 559 (BIA 2015) [when respondent knew he voted in federal election and knew he was not a USC, specific
intent to violate the federal statute, 18 USC §611 is not required for deportation under INA §237(a)(6) and the
exception for liability under §611 for non-USCs to vote in local elections did not apply] aff’d, Fitzpatrick v.
Sessions, 847 F.3d 913 (7th Cir. 2017) [officially authorized defense in Keathley unavailable where respondent
did not make accurate disclosures on form, was not told she could vote or even register to vote as an alien, and
registering is different than voting and she voted twice]. For additional case law, see also in this chapter
“Unlawful Voting,” ¶ III.H.3 (p.169), supra.
G. Criminal Grounds, Generally
For Aggravated Felonies and related issues, see in this part Sections H (p.280) and I (p.320), infra.
1. Categorical Approach—Supreme Court cases, such as Mathis v. U.S., 579 U.S. __, 136 S.Ct. 2243, 2248
(2016); Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013); Descamps v. U.S., 570 U.S. 254 (2013); Mellouli
v. Lynch, 575 U.S. __, 135 S.Ct. 1980, 1986–88 (2015), and others have developed the use of the
categorical approach in determining whether a crime may be a removable offense. As a result, cases decided
before the modern use of the categorical approach may no longer be good law and the reader is advised to
reanalyze those older cases under the modern categorical approach. For a detailed discussion of the
categorical and modified categorical approaches, see in this part ¶ I.9 (p.324), infra.
2. Sentence and Term of Imprisonment—Any reference to a term of imprisonment or sentence includes, by

virtue of INA §101(a)(48)(B), the time of incarceration or confinement ordered by a court, even if time is
suspended or execution is withheld. U.S. v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001) [sentence that was
probated is considered suspended, therefore full sentence must be considered]. Statute includes all
sentences and convictions entered on, before or after Sept. 30, 1996, IIRIRA §322(c), and includes
suspension of “imposition” of sentence. Matter of S-S-, 21 I&N Dec. 900 (BIA 1997); Fonseca-Leite v. INS,
961 F.2d 60, 62 (5th Cir. 1992). If the alien has been sentenced, actual confinement is not required. Velez-
Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972). At least one court has found that the definition of sentence
and conviction is retroactive. Moosa v. INS, 171 F.3d 994, 1006–10 (5th Cir. 1999). Page 266 However, if a
sentence is vacated or modified nunc pro tunc, the new sentence will determine whether the person is
removable even if it was vacated or modified solely for immigration purposes. Matter of Cota, 23 I&N Dec.
849 (BIA 2005) [where sentence was modified nunc pro tunc expressly to avoid deportation, IJ and BIA must
recognize it; Matter of Pickering distinguished; Matter of Song, 23 I&N Dec. 173 (BIA 2001) upheld]. The
Ninth Circuit has determined that an unconditional suspended nonincarceratory sanction (i.e., suspended
fine) is not a “punishment, penalty or restraint of liberty” under INA §101(a)(48)(A)(ii), because INA §101(a)
(48)(B) only addresses suspension of incarceration. Retuta v. Holder, 591 F.3d 1181, 1187–89 (9th Cir. 2010)
[controlled substance violation that resulted in a stayed fine was not a conviction]. While a sentence to
probation is not per se a sentence to imprisonment or confinement, a condition of probation that imposes a
term of confinement in a substance abuse facility is a term of imprisonment under INA §101(a)(48)(B). Matter
of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015), aff’d 870 F.3d 341 (5th Cir. 2017) [respondent was ineligible
for cancellation because of his aggravated felony conviction as his 5-year sentence under Texas law required
him to serve an indefinite term of confinement (understood as a maximum one year) in a substance abuse
felony punishment facility]; So too is a sentence to probation with certain conditions such as reporting,
attending AA and not owning firearms. Reyes v. Lynch, 834 F.3d 1104 (9th Cir. 2016) [distinguishing Retuta
because there were conditions of probation and fine was not suspended]; Herrera v. U.S. Att’y Gen., 811F.3d
1298 (11th Cir. 2016) [probation with a condition of one year’s house arrest is a sentence to confinement of a
year]. But a judge may clarify whether it is a sentence to probation. Matter of H. Estrada, 26 I&N Dec. 749,
754-56 (BIA 2016) [state judge’s subsequent order correcting sentence as a sentence to probation instead of
a condition of probation that imposes a term of confinement was upheld].
3. Collateral Attack on Criminal Conviction in Removal Not Permissible—May not collateral attack validity
of criminal conviction in removal proceedings. See in this chapter ¶ VI.B.5 (p.357), infra.
4. Crimes of Moral Turpitude [INA §§237(a)(2)(A)(i) & (ii), 8 USC §§1227(a)(2)(A)(i) & (ii)]
4.a. Note re Categorical Approach—Supreme Court cases, such as Mathis v. U.S., 579 U.S. __, 136 S.Ct.
2243, 2248 (2016); Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013); Descamps v. U.S., 570 U.S. 254
(2013); Mellouli v. Lynch, 575 U.S. __, __, 135 S.Ct. 1980, 1986–88 (2015), and others have developed
the use of the categorical approach in determining whether a crime may be a removable offense. As a
result, cases decided before the modern use of the categorical approach may no longer be good law and
the reader is advised to analyze those older cases under the modern categorical approach. For a detailed
discussion of the categorical and modified categorical approaches, see in this part ¶ I.9 (p.324), infra.
4.b. Generally—Under INA §237(a)(2)(A)(i), an alien or LPR is deportable if he or she is (1) convicted; (2) of
a crime involving moral turpitude (CIMT); (3) committed within 5 years of admission (unless she adjusted
under S visa, in which case it is within 10 years of admission); and is (4) convicted of a crime for which a
sentence of one year or longer may be imposed. Thus, this section applies to persons who receive a
sentence of less than one year as long as the offense carried a potential sentence of one year or longer.
Where the maximum penalty possible for a misdemeanor that is a CIMT is one year, the person has been
convicted of a crime described under INA §237(a)(2) and is therefore barred from non-LPR cancellation
under INA §240A(b)(1)(C) even if it falls within the petty offense exception. Matter of Cortez Canales 25
I&N Dec. 301 (BIA 2010) [respondent’s conviction for misdemeanor welfare fraud under Cal. Welf. & Inst.
Code §10980(c)(2) was a conviction barring non-LPR cancellation because it carried a penalty of one
year and was therefore a conviction “described under” INA §237(a)(2) despite it being a “petty offense”];
Hernandez v. Holder, 783 F.3d 189 (4th Cir. 2015)[followed Cortez Canales under Chevron where CIMT
was petty offense but was a crime described under 237(a)(2) thereby barring non-LPR cancellation];
Coyomani-Cielo v. Holder, 758 F.3d 908 (7th Cir. 2014) [following Cortez under Chevron deference and
found that while the applicant would not have been inadmissible for a CIMT because of the petty offense
exception, the same conviction, domestic battery, could be used to bar cancellation as an aggravated
felony despite his not committing the crime after admission]; Dominguez-Herrera v. Sessions, 850 F.3d
411, 419 (8th Cir. 2017) [where municipal judgment violation provide for penalty not to “exceed one year”
it was a deportable CIMT barring cancellation]; Ceron v. Holder, 747 F.3d 773, 777-78 (9th Cir. 2014) (en
banc) [where maximum sentence under wobbler provision is one year for a Page 267 violation of assault
with a deadly weapon under Cal. Penal Code 245(a)(1) the “misdemeanor” aspect would still subject the
person to deportation if it was a CIMT]; ]; Lucio-Rayos v. Sessions, 875 F.3d 573, 584 (10th Cir. 2018)
[“Lucio-Rayos’s theft offense was punishable by imprisonment ‘for a period not to exceed 365 days.’ WMC
[Westminster, CO, Municipal Code] 1-8-1(A). Even if Lucio-Rayos’s theft conviction met this ‘petty offense’
exception, however, the exception would only apply to CIMTs defined under 8 USC §1182. There is no
similar exception for CIMTs defined by 8 USC §1227(a)(2)(A)(i).”]. This provision and the change in
subsection (a)(2)(A)(ii) applies to persons whose deportation proceedings are initiated after Apr. 24, 1996.
AEDPA §435(b). Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998); Aquino-Encarnacion v. INS, 296 F.3d 56
(1st Cir. 2002) [where sentenced reduced to 11 months’ probation person still subject to deportation
because statute only requires that a sentence of one year or more may be imposed]. The previous statute
required a sentence or actual confinement of one year or more. The courts use the categorical and
modified categorical approach in determining whether a conviction is for a CIMT. See Matter of Silva-
Trevino, 26 I&N Dec. 826, 827 (BIA 2016) (Silva-Trevino III) [“We conclude that the categorical and
modified categorical approaches provide the proper framework for determining when a conviction is for a
crime involving moral turpitude.”]; Obeya v. Sessions, 884 F.3d 442, 450 (2d Cir. 2018) [“[a]pplying the
categorical approach” to find that pre–November 16, 2016 convictions under N.Y. Penal Law §155.25 are
not categorically CIMTs]. See also e.g., Alonzo v. Lynch, 821 F.3d 951, 957-63 (8th Cir. 2016) [Iowa Code
§708.1(2) regarding simple assault is a divisible statute and case remanded to determine under modified
categorical approach whether petitioner committed a CIMT]. For a more complete discussion as to the
definition of a CIMT, see in this chapter ¶ III.C.1 (p.101).
Prior law required commission of the crime within 5 years of “entry.” Matter of Sanchez, 17 I&N Dec. 218
(BIA 1980). The Fleuti doctrine, discussed above (Section II.A (p.78), therefore was important to
determine whether return after a trip abroad constituted a new “entry.” But see Matter of Collado-Munoz,
21 I&N Dec. 1061 (BIA 1997) [finding Fleuti no longer applicable even to returning LPRs with conviction];
Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003) [determining that Congress did abolish the Fleuti doctrine in
the passage of INA §101(a)(13)(C) for certain returning LPRs and upholding Matter of Collado-Munoz on
Chevron deference grounds]; Heredia v. Sessions, 865 F.3d 60 (2d Cir. 2017) [same]. But see Vartelas v.
Holder, 566 U.S. 257 at n.2 (2012) [vitality of Fleuti is an open question and held that it continues to apply
to LPRs with pre-IIRIRA offenses].The current law however looks to whether the crime was committed
within 5 years of admission, not entry. Admission is defined under INA §101(a)(13)(A). The definition of
admission under the statute means that the criminal act must occur within 5 years of the person’s lawful
entry into the U.S. and not within 5 years of his or her later adjustment of status. Thus, admission under
INA §101(a)(13)(A) is not defined as including AOS but rather the prior “lawful entry of the alien into the
United States after inspection and authorization by an immigration officer.” Shivaraman v. Ashcroft, 360
F.3d 1142 (9th Cir. 2004) [rejecting interpretation of INA §237(a)(2)(A)(i) that would permit 5 years from
AOS instead of admission under INA §101(a)(13)(A)]. Accord Totimeh v. U.S. Att’y Gen., 666 F.3d 109,
116-18 (3d Cir. 2012) [for purposes of determining deportability for committing a CIMT within 5 years of
admission,the first lawful entry (F-1 status) and not the date of AOS counts]; Zhang v. Mukasey, 509 F.3d
313 (6th Cir. 2007) [5 years is not measured from AOS because AOS does not constitute an admission];
Abdelqadar v. Gonzales, 413 F.3d 668, 672–74 (7th Cir. 2005) [rejecting Matter of Rosas in the context of
§237(a)(2)(A)(i) where person committed CIMT within 5 years of AOS]; Aremu v. DHS, 450 F.3d 578 (4th
Cir. 2006) [reversing Matter of Shanu and finding §101(a)(13)(A) is clear and that admission applies to
lawful entry, not to AOS]. But see Matter of Shanu, 23 I&N Dec. 754, 756–59 (BIA 2005), rev’d by Aremu
v. DHS, 450 F.3d 578 (4th Cir. 2006) [“date of admission” includes the date of AOS and applies to any
admission]; Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) [“admission” in context of INA §237(a)(2)(A)(iii)];
Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1135 (9th Cir. 2001) [date of AOS qualifies as “date of
admission” when the individual has never been “admitted”]. In Matter of Alyazji, 25 I&N Dec. 397 (BIA
2011) the Board modified its decision in Matter of Shanu that “any” admission triggered removability under
INA §237(a)(2)(A)(i) for committing a CIMT within five years after the date of admission. Instead the BIA
reasoned that the five years would be counted from the last admission by virtue of which the person was
then Page 268 in the U.S. and not any readmission, extension of existing admission, or new admission
(AOS) from within the U.S. 25 I&N Dec. at 406-07. This would be so even if the person overstayed after a
lawful entry [“an overstay or violation would have no effect on our analysis”] 25 I&N Dec. at 406-07 and
n.6, 8; Sijapati v. Boente, 848 F.3d 210 (4th Cir. 2017) [reading Alyazji to mean any admission from
outside the U.S. and affirming deportation under Chevron]. Also “committed” within 5 years of admission
applies to the time of the commission of the crime not the conviction. Matter of Yanez-Jaquez, 13 I&N
Dec. 449, 451 (BIA 1970). If the crime alleged is conspiracy, e.g., conspiracy to commit marriage fraud,
the last overt act in furtherance of the conspiracy, if within the 5 years, will trigger removal. Ashraf v.
Lynch, 819 F.3d 1051 (8th Cir. 2016) [where respondent was convicted of conspiracy under 18 USC §371
to commit marriage fraud under 8 USC §1325(c) his submission of the I-751 was an overt act that
occurred within 5 years and triggered removal]. But see U.S. v. Ongaga, 820 F.3d 152, 159-61 (5th Cir.
2016) [marriage fraud under 8 USC §1325(c) is not a continuing offense and ends for statute of limitation
purposes when the marriage is completed because actions occurring after the marriage do not constitute
elements of the offense].
Where a condition of probation imposes a term of confinement in a substance-abuse facility, it is a term of

imprisonment under INA §101(a)(48)(B). Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015)
[respondent was ineligible for cancellation because of his aggravated felony conviction as his 5-year
sentence under Texas law he was required to serve an indefinite term of confinement (understood as a
maximum one year) in a substance abuse felony punishment facility]. But see Matter of N-, 8 I&N Dec.
660 (BIA 1960) [a person who has been committed for treatment has not been sentenced]; Matter of K-, 3
I&N Dec. 48 (BIA 1947); and Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958). The underlying criminal
statutes, rather than recidivist sentencing statutes, should be utilized to determine whether a sentence of
one year may be imposed. Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. 2004) [felony conviction for petty theft
with a qualifying prior offense under Cal. Penal Code §§484, 488, and 666 is not a crime for which a
sentence of one year or longer may be imposed].Where the person has been sentenced but the execution
is withheld (suspended), it is nevertheless considered a sentence for immigration purposes. INA §101(a)
(48)(B); see also Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992). If the alien has been sentenced,
actual confinement is not required. Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972). A judge may
clarify whether it is a sentence to probation. Matter of H. Estrada, 26 I&N Dec. 749, 754-56 (BIA 2016)
[state judge’s subsequent order correcting sentence as a sentence to probation instead of a condition of
probation that imposes a term of confinement was upheld].
Cuban rollback provision is applicable so that 5 years from admission is measured from the date
adjustment is recorded (rollback date) and not from the date the Cuban adjusted under Section 1 of the
Cuban Adjustment Act. Matter of Carrillo, 25 I&N Dec. 99 (BIA 2009).
4.c. Attempt Crimes—Although the deportation ground, unlike the inadmissibility ground, does not include
attempt crimes, the BIA has determined that a conviction for attempt will be a CIMT if the substantive
offense underlying the conviction is a CIMT. Matter of Vo, 25 I&N Dec. 426 (BIA 2011) [conviction for
attempted grand theft is a CIMT and respondent was deportable under INA §237(a)(2)(A)(ii)]. But see Gill
v. Ashcroft, 420 F.3d 92 (2d Cir. 2005) [conviction for attempted reckless assault is not a CIMT, through
apparently valid under state law, because it involves a legally incoherent mens rea]; Knapik v. Ashcroft,
384 F.3d 84 (3d Cir. 2004) [same as to attempted reckless endangerment].
4.d. Multiple CIMTs—An LPR or alien is deportable if (1) at any time after admission; (2) he or she is
convicted of 2 or more CIMTs; (3) not arising out of a single scheme of criminal misconduct. INA §237(a)
(2)(A)(ii).
(1) “Single Scheme”—The BIA has found that the single-scheme exception only applies where the
crimes “were performed in furtherance of a single criminal episode, such as where one crime
constitutes a lesser offense of another or where 2 crimes flow from and are the natural consequences
of a single act of criminal misconduct.” Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) [unauthorized
use of four different credit cards was not a single scheme even if committed pursuant to an elaborate
plan and the same modus operandi]. In Matter of Islam, 25 I&N Dec. 637 (BIA 2011) the BIA, invoking
Brand X, adopted and applied nationwide its more Page 269 narrow reading in Matter of Adetiba of the
single scheme exception, rather than the more expansive definition in Nason v. INS, 394 F.2d 223 (2d
Cir. 1968). Accord Chavez-Alvarez v. U.S. Att’y Gen., 850 F.3d 583, 586-87 (3d Cir. 2017) [where
respondent committed sodomy and then lied about it two hours later court did not consider both acts to
be part of a single scheme, although the court found that sodomy was not a CIMT]; Abdelqadar v.
Gonzales, 413 F.3d 668, 674–75 (7th Cir. 2005) [upholding Matter of Adetiba and finding respondent
removable for 2 food stamp fraud convictions on 2 different days]; Michel v. INS, 206 F.3d 253, 259–61
(2d Cir. 2000) [under the court’s prior decision in Nason or the BIA’s standard in Adetiba, 2 possession
of stolen property offenses committed 2 months apart were not part of a single scheme]; Okoro v. INS,
125 F.3d 920, 926 (5th Cir. 1997) [where computer equipment was ordered together but parts came 2
days apart and were paid for by 2 fraudulent checks, it was 2 crimes]; Akindemowo v. INS, 61 F.3d 282
(4th Cir. 1995) [grand larceny by passing 2 fraudulent checks at 2 stores at the same mall on the same
day considered separate crimes]; Balogun v. INS, 31 F.3d 8 (1st Cir. 1994) [mail fraud arising from
same plan, but plea to 3 counts involving 3 insurance companies in separate locations with petitioner
using different aliases were separate crimes]; Nguyen v. INS,991 F.2d 621 (10th Cir. 1993) [possession
of stolen vehicle and shooting with intent to kill when stopped by police officer for speeding was 2
separate crimes]; Iredia v. INS, 981 F.2d 847 (5th Cir. 1993) [person applied for 13 credit cards under
false names and was convicted at one trial, separate schemes]; Leon-Hernandez v. INS, 926 F.2d 902
(9th Cir. 1991) [2 counts of oral copulation with same person one month apart considered 2 crimes
where there was no evidence of a conscious coherent plan or program of future action]; Pacheco v.
INS, 546 F.2d 448 (1st Cir. 1976); Nason v. INS, 394 F.2d 223 (2d Cir. 1968) [break-ins committed 2
days apart during drunken spree, sufficient for 2 crimes]; Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).
Jeronimo v. Murff, 157 F.Supp. 808, 815 (S.D.N.Y. 1957). But see Gonzalez-Sandoval v. INS, 910 F.2d
614 (9th Cir. 1990) [2 robberies within 2 days at the same bank which were planned at same time arise
out of single scheme]. See generally Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) [former statute read
so that person only deportable if a “repeater”—separate crimes and separate convictions].
(2) Under previous statute, the grant of INA §212(c) relief on the first conviction did not bar deportation
under former INA §241(a)(2)(A)(ii) if a second CIMT was committed. 8 CFR §§212.3(d), 1212.3(d);
Matter of Balderas, 20 I&N Dec. 389 (BIA 1991); Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993);
Molenda v. INS, 998 F.2d 291 (5th Cir. 1993). See also De Hoyos v. Mukasey, 551 F.3d 339 (5th Cir.
2008) [grant of cancellation of removal as to drug conviction did not “cancel” the conviction and bar its
consideration in determining eligibility for relief in a subsequent removal proceeding; petitioner
ineligible for INA §212(h) waiver]; Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008) [grant
of INA §212(c) as to firearm conviction would not remove it as bar to cancellation for subsequent
offense]; Amouzadeh v. Winfrey, 467 F.3d 451, 458–59 (5th Cir. 2006) [where respondent had a drug
conviction and a CIMT, INA §212(c) grant for the drug conviction does not allow cancellation because
respondent still has an aggravated felony conviction that bars it]. Accord Peralta-Taveras v. U.S. Att’y
Gen., 488 F.3d 580 (2d Cir. 2007) [same as to drug sale and subsequent drug crimes; collecting
cases]; Nunez Pena v. Lynch, 823 F.3d 756 (2d Cir. 2016) [rejected a Vartelas challenge to Peralta-
Taveras]
(3) A person is subject to deportation:
Even if there is no confinement, Matter of O-, 7 I&N Dec. 539 (BIA 1957); Matter of P-, 8 I&N
Dec. 424 (BIA 1959).
Even if convicted at a single trial, so long as she is charged with separate counts and the
prosecution needs to prove separate facts for conviction, Chanan Din Khan v. Barber, 253 F.2d
547 (9th Cir. 1958); Fitzgerald v. Landon, 238 F.2d 864 (1st Cir. 1956).
Even if second offense is a misdemeanor. Matter of Tran, 21 I&N Dec. 291 (BIA 1996)
abrogated on other grounds Morales-Garcia v. Holder, 567 F.3d 1058, 1066 n.4 (9th Cir. 2009).
(4) Burden of Proof—The government has the burden of proving that the 2 crimes were not part of a
single scheme, Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963); Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959);
Matter of C-, 9 I&N Dec. 524 (BIA 1962), rev’d on other grounds, Costello v. INS, 376 U.S. 120 (1964).
Page 270 Government must prove that both crimes were CIMTs. Hamdan v. INS, 98 F.3d 183 (5th Cir.
1996) [person not deportable where one crime was not a CIMT].
4.e. Juvenile Delinquency—For a discussion when juvenile delinquency will be considered a conviction for
immigration purposes, see in this chapter ¶ VI.A.13 (p.355), infra.
4.f. Foreign Convictions—A person cannot be deported for a foreign conviction under this provision because
the crime had to be committed after admission.
5. High-Speed Flight [INA §237(a)(2)(A)(iv), 8 USC §1227(a)(2)(A)(iv)]—Any person convicted of a violation of

18 USC §758 relating to high-speed flight from an immigration checkpoint.
6. Drug-Related Offenses [INA §237(a)(2)(B), 8 USC §1227(a)(2)(B)]
(2013); Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980, 1986–88 (2015), and others have developed the
use of the categorical approach in determining whether a crime may be a removable offense. As a result,
cases decided before the modern use of the categorical approach may no longer be good law and the
reader is advised to analyze those older cases under the modern categorical approach. (Discussion in this
section, at ¶¶ 6.d, 6.e, and 6.f (pp. 271 ff.), infra. For a general, more detailed discussion of the
categorical and modified categorical approaches, see in this part ¶ I.9 (p.324), infra.)
6.b. Generally—Under this section an LPR or alien is deportable if:
Alien is, or at any time after admission has been a narcotic/drug addict or drug abuser (status), INA
§237(a)(2)(B)(ii), 8 USC §1227(a)(2)(B)(ii); or
At any time after admission, has been convicted of a violation of or conspiracy or attempt to violate
any law or regulation of a state, the U.S., or a foreign country relating to a controlled substance as
defined in 21 USC §802. INA §237(a)(2)(B)(i), 8 USC §1227(a)(2)(B)(i).
Includes all drugs listed at 21 USC §812 and all drugs designated by the AG at 21 USC §811 and
Schedules I through V in 21 CFR §§1308.11 to .15. BIA views any conviction under a law or regulation
that satisfies the factors in Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), as a conviction for
removability purposes. BIA otherwise gives broad reading to the statute. Matter of Cuellar, 25 I&N Dec.
850, 855-60 (BIA 2012) [broadly reading the language “any law or regulation of a state” to include a
conviction for violating a municipal ordinance for possession of marijuana]; Matter of Esqueda, 20 I&N
Dec. 850 (BIA 1994) [includes conviction for being under the influence of a drug, including any conviction
even if specific intent or mens rea is absent; superseding Second Circuit’s reasoning in Lennon]; Matter of
Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988).
6.c. Drug Paraphernalia—Conviction for drug paraphernalia may be a deportable offense. See in this
chapter ¶ III.C.2.b (p.129), supra. Nevertheless, in Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980 (2015)
the Supreme Court, narrowed the reading of the statute in a drug-paraphernalia case and determined that
a conviction for misdemeanor possession of drug paraphernalia in violation of Kan. Stat. Ann. §21-
5709(b)(2) is not a deportable offense because the state statute did not require that the substance be
defined under 21 USC §802 and the state did not charge or seek to prove that the defendant possessed a
substance on the §802 schedule. The Court recognized that the BIA accepted this analysis for possession
of a drug in Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) where it declined removal for a state California
conviction that may not have been a federal drug offense. However, the Board’s application of a different
rule for drug paraphernalia in Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009) that allowed for
deportation where the state statute may not have included a federally defined drug offense made “scant
sense” and “is owed no deference under…Chevron.” Mellouli at 1989. The Court also rejected the
suggestion that where state and federal definitions “overlap” but are not identical that under the
categorical approach a person may be deported for any drug crime on the theory that the “relating to”
language in INA §237(a)(2)(B)(i) relates to any “law or regulation.” The Court, however, recognized that
such a construction would stretch to the “breaking Page 271 point” the analysis and would allow the
interpretation of the federal immigration statute to permit deportation under a state court conviction where
no federal controlled substance is an element of the offense. Mellouli at 1989-90. See also Madrigal-
Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015) [followed Mellouli and reputed its own former precedents
in Luu-Le, 224 F.3d 911, 916, Oseguera-Madrigal, 700 F.3d 1196, 1199-1200, Bermudez, 586 F.3d 1167,
1168-69and Estrada, 560 F.3d 1039, 1042 and held that Nev. Rev. Stat. §453.566 for possession of drug
paraphernalia was not categorically a violation of a law related to a controlled substance because it is
overbroad and penalizes for possession of drugs not controlled under federal law]; Rojas v. U.S. Att’y
Gen., 728 F.3d 203 (3d Cir. 2013) (en banc) [in paraphernalia case the court rejected the modified
categorical approach because it found that 35 Pa. Cons. Stat. §780-113(a)(32)was not a divisible statute
and as it encompassed drugs that were not within the federal definition under 21 USC §802 respondent
was not an aggravated felon].
6.d. Categorical Approach—The categorical approach is applicable, see Mellouli v. Lynch, 575 U.S. __, 135
S.Ct. 1980 (2015)and the government must prove the drug charge by clear, convincing and unequivocal
evidence. Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) [where state law regulated the
possession and sale of numerous substances that were not similarly regulated by the CSA and criminal
records proved a conviction for possession of a controlled substance but did not demonstrate what drug
was involved, the government did not meet it burden of proof]; Madrigal-Barcenas v. Lynch, 797 F.3d 643
(9th Cir. 2015) [followed Mellouli and reputed its own former precedents in Luu-Le, 224 F.3d 911, 916,
Oseguera-Madrigal, 700 F.3d 1196, 1199-1200, Bermudez, 586 F.3d 1167, 1168-69and Estrada, 560 F.3d
1039, 1042 and held that Nev. Rev. Stat. §453.566 for possession of drug paraphernalia was not
categorically a violation of a law related to a controlled substance because it is overbroad and penalizes
for possession of drugs not controlled under federal law]; Matter of Paulus, 11 I&N Dec. 274 (BIA 1965).
But see Coronado v. Holder, 759 F.3d 977, 982-86 (9th Cir. 2014) [California drug statute is divisible
because identify of particular controlled substances are alternative elements, not alternative means, so
that government could meet its burden of proof by looking to record of conviction to show that defendant
was convicted of possessing methamphetamines]; Medina-Lara v. Holder, 771 F.3d 1106, 1112-19 (9th
Cir. 2014) [following Coronado in regard to modified categorical approach under Cal. Health and Safety
Code §11351 but holding that where charge says cocaine but abstract only records “controlled substance”
that ICE failed to prove by clear and convincing evidence that conviction is for aggravated felony or drug
crime]; Alvarado v. Holder, 759 F.3d 1121, 1130-31 (9th Cir. 2014) [accepted modified categorical
approach even where government conceded that Arizona’s definition of dangerous drug is broader that
federal definition of controlled substance].
6.e. Categorical Approach and Overbroad Statutes—U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017)
(en banc) [Cal. Health and Safety Code §11352(a) is overbroad because it criminalizes more substances
than the federal CSA, but is divisible and under modified categorical approach defendant was convicted of
drug trafficking offense]; Cheuk Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2009, amended 2010)
[conviction under Cal. Health & Safety Code §11379(a) for the Sale or Transportation of a Controlled
Substance is not categorically a conviction for a drug crime because California law regulates the
possession and sale of many substances that are not regulated by the CSA and it is not a trafficking or
drug crime under the modified categorical approach because the respondent’s admission and reference to
a document not in the record are insufficient to meet the Shepard standards]; Coronado v. Holder, 759
F.3d 977, 982-86 (9th Cir. 2014)[holding that under Descamps, California drug possession statute is
overbroad, as most but not all of the substances covered are federally controlled, but also divisible so that
factfinder could use modified categorical approach to determine under which portion of the California
statute the respondent had pleaded guilty]; U.S. v. Huitron-Rocha, 771 F.3d 1183 (9th Cir. 2014) [followed
Coronado in sentencing context regarding prior conviction for Cal. Health and Safety Code §11351(a)];
Argaw v. Ashcroft, 395 F.3d 521 (4th Cir. 2005) [where khat is not listed as a controlled substance under
21 USC §812, 21 CFR §§1308.11 to .15, and it was not chemically analyzed to determine if its constituent
elements contained a controlled substance which may be on the list, it cannot be a ground of
inadmissibility as an admission or for “reason to believe”]. But even where the statute is overbroad, the
respondent may be required to establish that there is a “realistic probability” that the state actually
prosecutes someone for Page 272 substances not on the federal schedules. Matter of Ferreira, 26 I&N
Dec. 415 (BIA 2014) [even where a state statute (Conn. Gen. Stat. Ann. §21a-277(a)) on its face covers a
controlled substance not included in the federal schedule, there must still be a realistic probability the
state would prosecute conduct that falls outside the generic definition to defeat removability]; Vazquez v.
Sessions, 885 F.3d 862, 874 (5th Cir. 2018) [finding U.S. v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017)
(en banc) requirement that the “realistic probability” test must apply even where a state statute is
overbroad, the court found that despite Oklahoma Stat. Ann. title 63 §2-402(A)(1) being categorically
overbroad for containing drugs not listed on the federal schedules, the failure to brief the issue that the
realistic probability test was satisfied resulted in waiver and the order of deportation was therefore
upheld]. But see Swaby v. Yates, 847 F.3d 62, 65-66 (1st Cir. 2017) [rejecting the realistic probability test
for controlled substance violations]; Vassell v. U.S. Att’y Gen., 839 F.3d 1352, 1362 (11th Cir. 2016); Singh
v. U.S. Att’y Gen., 839 F.3d 273, 286 (3d Cir. 2016).
6.f. Modified Categorical Approach—Ruiz-Vidal v. Lynch, 803 F.3d 1049 (9th Cir. 2015) [plead to lesser
included offense of possession of a controlled substance where initial offense was sale of
methamphetamines was sufficient to find under modified categorical approach that respondent was
convicted of drug crime]; Medina-Lara v. Holder, 771 F.3d 1106, 1112-19 (9th Cir. 2014) [following
Coronado in regard to modified categorical approach under Cal. Health and Safety Code §11351 but
holding that where charge says cocaine but abstract only records “controlled substance” that ICE failed to
prove by clear and convincing evidence that conviction is for aggravated felony or drug crime]; Alvarado v.
Holder, 759 F.3d 1121, 1130-31 (9th Cir. 2014) [accepted modified categorical approach even where
government conceded that Arizona’s definition of dangerous drug is broader that federal definition of
controlled substance]; Pagayon v. Holder, 675 F.3d 1182, 1189-90 (9th Cir. 2012) [found violation of Cal.
Health & Safety Code §11377(a) a drug crime for possession of methamphetamines under modified
categorical approach based upon Shepard documents + pleading stage admission]; Mielewczyk v. Holder,
575 F.3d 992 (9th Cir. 2009) [under modified categorical approach Cal. Health & Safety Code §11352(a) is
a drug crime and not a generic solicitation statute].
6.g. Constituent Elements Not a Drug Crime—A crime may also not be a drug crime given its constituent
elements. Borrome v. U.S. Att’y Gen., 687 F.3d 150, 159-63 (3d Cir. 2012) [distinguishing between
distribution of prescription drugs and controlled substances and finding that conviction under 21 USC
§§331(t), 353(e)(2)(A) prohibiting unlicensed wholesale distribution of prescription drugs in interstate
commerce is not an a conviction “relating to” a controlled substance]; Lara-Chacon v. Ashcroft, 345 F.3d
1148, 1154–56 (9th Cir. 2003) [AZ money laundering statute is distinct from underlying crime and
therefore does not necessarily “relate to” a controlled substance violation]; Coronado-Durazo v. INS, 123
F.3d 1322 (9th Cir. 1997) [solicitation under AZ statute is not a deportable offense; Beltran not followed];
Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999) [following Coronado-Durazo solicitation to possess
marijuana for sale under AZ law is not a conviction under CSA]; Castaneda de Esper v. INS, 557 F.2d 79
(6th Cir. 1977) [misprision of a felony is not a drug crime under previous removal statute]; Matter of
Carrillo, 16 I&N Dec. 625 (BIA 1978) [illegally carrying a firearm during commission of a felony not drug
crime]; Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) [accessory after the fact under 18 USC
§3 is not drug crime]. But see Guerrero-Silva v. Holder, 599 F.3d 1090 (9th Cir. 2010) [Cal. Health &
Safety Code §11361(b) which specifically prohibits offering to give marijuana to a minor is categorically a
drug crime and is not generalized solicitation]; Hernandez-Aguilar v. Holder, 594 F.3d 1069 (9th Cir. 2010)
[Cal. Health & Safety Code §11379(a) categorically qualifies for removal, even if there is a solicitation
component, as long as the substance involved is a controlled substance]; Mizrahi v. Gonzales, 492 F.3d
156 (2d Cir. 2007) [misdemeanor solicitation of the sale of drugs under N.Y. Penal Law §100.5(1) is a drug
crime]; Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005) [Nevada attempt to be under the influence of
THC-carboxylic acid is an offense involving possession of a small amount of marijuana and the fact that
the statute involved use rather than possession was irrelevant]; Peters v. Ashcroft, 383 F.3d 302 (5th Cir.
2004) [felony solicitation to transport marijuana for sale under Ariz. Rev. Stat. §13-1002 is a drug crime];
Matter of Beltran, 20 I&N Dec. 521 (BIA 1992) [solicitation to commit a deportable crime renders person
deportable as solicitation Page 273 is like aiding or abetting]; Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA
2009) [reaffirming Beltran outside of Ninth Circuit]; Matter of Del Risco, 20 I&N Dec. 109 (BIA 1989)
[facilitation under AZ law].
6.h. Small Amounts of Marijuana—It is not a deportable offense to be convicted of “a single offense
involving possession for one’s own use of 30 grams or less of marijuana.” INA §237(a)(2)(B)(i). USCIS
does not include hashish or other marijuana derivatives within this exception. Legal Opinion, Virtue,
Deputy General Counsel, HQ 241(a)(2)(B)(i) (Aug. 19, 1992). But see Tariq Hamid v. INS, 538 F.2d 1389,
1391 (9th Cir. 1976) [including hashish within the definition of marijuana for purposes of former INA
§212(a)(23)].The inquiry regarding the exception is circumstance specific because “single offense” refers
to the totality of acts of the person on a single occasion and not a single generic crime. Matter of Davey,
26 I&N Dec. 37 (BIA 2012) [conviction for possession of under 30 grams of marijuana and conviction for
drug paraphernalia committed simultaneously is a single offense and therefore exception applies]. The
Board adhered to its “circumstance specific” approach notwithstanding Moncrieffe v. Holder, 569 U.S. 184
(2013) in Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014) [reversed IJ’s application of
Moncrieffe to Nev. Rev. Stat. §453.336]. But in light of the vacatur of Silva-Trevino and the limiting
language in Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980, 1986 n.3 (2015) reading the Nijhawan v.
Holder exception narrowly, the circumstance specific approach in drug cases is viable only as it pertains
to the exception for possession of 30 grams or less of marijuana for personal use.
The exception for 30 grams or less may be narrowly applied. Matter of Moncada-Servellon, 24 I&N Dec.
62 (BIA 2007) [narrowly interpreting the deportability exception as not including a conviction for
possession of 30 grams or less of marijuana in prison under Cal. Penal Code §4573.6]; Matter of
Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007) [enhancement for possession of marijuana in a “drug-free
zone” renders conviction as more than simple possession of 30 grams of marijuana. Respondent ineligible
for INA §212(h) relief and Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992) was superseded for
post-Apprendi cases]. But see Esquivel v. Lynch, 803 F.3d 699, 702-06 (5th Cir. 2015) [BIA interpretation
in Moncada-Servellon not entitled to deference under Chevron because the statute is clear on its face that
possession of less than 30 grams for personal use applies wherever it is used]. The single offense
exception may not bar removal if the person had prior drug possession convictions. Rodriguez v. Holder,
619 F.3d 1077 (9th Cir. 2010) [person with prior convictions for possession of heroin and cocaine could
not rely on exception to prevent removal for marijuana possession conviction]. But see Medina v. Ashcroft,
393 F.3d 1063 (9th Cir. 2005) [Nevada attempt to be under the influence of THC-carboxylic acid is a crime
for possession of a small amount of marijuana and the fact that the statute involved use rather than
possession was irrelevant].
6.i. Travel Act—Some courts have found that a violation of the Travel Act, 18 USC §1952 is a violation of a
law relating to a controlled substance where respondent was transporting drugs in interstate commerce.
Urena-Ramirez v. Ashcroft, 341 F.3d 51, 53–57 (1st Cir. 2003) [fact that Travel Act involves other criminal
conduct does not mean it is not also a law relating to a controlled substance]; Johnson v. INS, 971 F.2d
340, 342–43 (9th Cir. 1992) [conviction for traveling in interstate commerce to distribute drug proceeds].
6.j. Under the Influence—Being under the influence of a drug other than marijuana, even if a misdemeanor,
may be a deportable offense. Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993) [under the influence of
amphetamines]; Matter of Esqueda, 20 I&N Dec. 850 (BIA 1994).
6.k. Retroactivity—Under the Anti-Drug Abuse Act of 1986, PL 99-570, subtitle M, of the Narcotics
Traffickers Deportation Act the INA provision is expressly made retroactive to cover all previous
convictions.
7. Firearms Violations [INA §237(a)(2)(C), 8 USC §1227(a)(2)(C)]
cases decided before the modern use of the categorical approach Page 274 may no longer be good law
and the reader is advised to analyze those older cases under the modern categorical approach.
(Discussion in this section is at ¶ 7.d (p.275), infra. For a general, more detailed discussion of the
categorical and modified categorical approaches, see in this part ¶ I.9 (p.324), infra.)
7.b. Generally—An alien is deportable under INA §237(a)(2)(C) if any time after admission he or she is
convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or
carrying in violation of any law, any weapon, part or accessory which is a firearm or destructive device as
defined in 18 USC §921(a). Matter of Chairez, 26 I&N Dec. 819, 821 n.2 (BIA 2016) [Conviction under
Utah Code §76-10-508.1 for felony discharge of a firearm is a deportable offense]. Includes attempts and
conspiracies. Matter of St. John, 21 I&N Dec. 593 (BIA 1996) [amendment including attempts by §203(b)
of INTCA of 1994 is retroactive and applies to convictions occurring “before, on or after” Oct. 25, 1994.
Matter of Hou superseded]; Drax v. Reno, 338 F.3d 98, 108–10 (2d Cir. 2003) [same]. Includes pure
firearms offenses even if no other crime is committed. Lemus-Rodriguez v. Ashcroft, 350 F.3d 652, 655–
56 (7th Cir. 2003) [Illinois reckless discharge of a rifle on New Year’s Eve was sufficient to bar
cancellation]; Valerio-Ochoa v. INS, 241 F.3d 1092 (9th Cir. 2001) [negligently discharging a firearm under
Cal. Penal Code §246.3). May include conviction of a crime for which “possessing” or “carrying” a firearm
is an element of the offense. Kuhali v. Reno, 266 F.3d 93, 101–07 (2d Cir. 2001) [conspiracy to export
firearms and ammunition without a license under 22 USC §2778 is a firearms offense because unlicensed
export entails constructive possession]. It includes “delivery” of a firearm even though not specifically
named in the statute. Malilia v. Holder, 632 F.3d 598, 602-04 (9th Cir. 2011) [statute broadly construed and
delivery of a firearm under 18 USC §922(e) is a deportable offense because to convict the government
must demonstrate that defendant had actual or constructive possession of a firearm]. It includes
transporting a firearm. Matter of Flores-Abarca, 26 I&N Dec. 922 (2017) [transporting a loaded firearm in
violation of Okla. Stat. tit. 21, §1289.13 is categorically a firearms offense even though “transporting” is
not included in the INA because of “the expansive text and history” of 237(a)(2)(C)]. It includes
misdemeanors. Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007) [misdemeanor citation and fine for
transportation of a loaded firearm, Minn. Stat. §97B.045, where respondent was carrying hunting rife in
ATV was a deportable offense notwithstanding the federal hunting rifle exception]. Whether firearm was
loaded is not relevant. Matter of Lanferman, 25 I&N Dec. 721, 733 n.12 (BIA 2012). Possession under the
statute includes constructive possession. Kuhali, supra; Aybar-Alejo v. INS, 230 F.3d 487 (1st Cir. 2000)
[possession or control of a firearm under R.I. Gen. Laws §11-47-7 is within INA because conviction for
control of firearm is the same as constructive possession]. It also includes enhancement provisions, e.g.,
where a sentence is enhanced because a gun was used during the commission of the crime, but only if it
must be proved beyond a reasonable doubt or is admitted by the defendant as an element of the crime.
Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007) [arising in a drug enhancement context and
finding that Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992) which held that enhancement due to
the use of a weapon in the commission of a crime was not a gun crime, is superseded by Apprendi v. New
Jersey, 530 U.S. 466 (2000)]. See also Matter of K-L-, 20 I&N Dec. 654 (BIA 1993) [distinguishing Matter
of Rodriguez-Cortes and finding a conviction under 18 USC §924(c)(1) is a distinct offense, not an
enhancement provision]; Matter of P-F-, 20 I&N Dec. 661 (BIA 1993) [Fla. Stat. §§810.02, 812.13 armed
burglary with a firearm not an enhancement provision because it requires use of firearm as an element of
the crime]; Matter of Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993), aff’d, Lopez-Amaro v. INS, 25 F.3d 986,
989–90 (11th Cir. 1994) [same as to murder with a firearm under Fla. Stat. §775.087]. Where use of a
firearm is not an element of the crime (e.g., assault), a conviction will not be considered a deportable
firearms offense. Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) [where 3rd degree assault in
Wash. state was accomplished with a pistol, but person not charged with use of pistol, no firearms
offense]; U.S. v. Moncrieffe, 167 F.Supp.3d 383, 406-12 (E.D.N.Y. 2016) [BIA impermissibly relied on
statements by respondent and inferences from the indictment without properly analyzing where
respondent’s first degree robbery conviction under N.Y. Penal Law §160.15 was a firearm’s offense under
the categorical approach; moreover there is no categorical match between the federal and NY State’s
firearms offenses]. But see Vue v. INS, 92 F.3d 696 (8th Cir. 1996) [conviction for aggravated robbery with
a weapon was sufficient where record of conviction demonstrated it was a firearm]; Matter of Lopez-
Amaro, supra Page 275 [conviction where firearm is an element or lesser included offense is firearms
violation]. One court, reading the section broadly, has found that a false statement to a federally licensed
dealer in connection with a firearms purchase under 18 USC §922(a)(6) is a firearms offense. Hall v. INS,
167 F.3d 852 (4th Cir. 1999).
7.c. Former INA §241(a)(2)(C) applies to any convictions, including those which arose prior to IMMACT90.
Matter of Chow, 20 I&N Dec. 647 (BIA), aff’d, Chow v. INS, 12 F.3d 34 (5th Cir. 1993); Lopez-Amaro v.
INS, 25 F.3d 986, 988–89 (11th Cir. 1994) [same]. See also Drax v. Reno, 338 F.3d 98, 108–10 (2d Cir.
2003) [Congress intended the amendments to the firearms statute under INTCA §203 that included
attempts to apply retroactively]. For partial legislative history of the previous statute, see Cabasug v. INS,
847 F.2d 1321, 1322–25 (9th Cir. 1988).
7.d. The categorical and modified categorical approach apply to firearms convictions. U.S. v. Ochoa, 861
F.3d 1010, 1015-18 (9th Cir. 2017) [in prosecution for illegal reentry, conviction for conspiracy to export
defense articles in violation of 22 USC §2778(a) was not categorically a firearms offense because its
incorporation of the Munitions List sweeps more broadly than the generic definition of a firearm and the
Munitions List does not make 2778(a) divisible]; U.S. v. Aguilera-Rios, 769 F.3d 626, 633-37 (9th Cir.
2014) [post-Moncrieffe a conviction under Cal. Penal Code §12021(c)(1) is not a categorical match to
immigration law’s firearms offense because a person can and does get convicted under state law for
possession of an antique firearm whereas the federal definition exempts antique firearms]; cf. Matter of
Chairez, 26 I&N Dec. 819, 821 n.2 (BIA 2014) (Chairez I) and Matter of Chairez, 26 I&N Dec. 819, 821 n.2
(BIA 2016) (Chairez III) [Conviction under Utah Code §76-10-508.1 for felony discharge of a firearm is a
deportable offense and there is no “realistic probability” that a defendant would be prosecuted for an
antique firearm under Utah law]. If a statute is divisible and determined to be a firearms offense under the
modified categorical approach, the determination of whether a person was convicted of a firearms offense
can only occur through the admission of the record of conviction or other Shepard documents admissible
as evidence to prove a conviction under 8 CFR §1003.41. Malilia v. Holder, 632 F.3d 598, 602-03 (9th Cir.
2011) [finding that although 18 USC §922(e) is divisible into delivery of a weapon and delivery of
ammunition the latter which would not be firearm offense, the Shepard documents established it was
firearms]; Dulal-Whiteway v. DHS, 501 F.3d 116, 121–23 (2d Cir. 2007) [a conviction under 18 USC
§922(a)(6) regarding making a fraudulent statement in connection with the acquisition or attempted
acquisition of a firearm is not categorically a firearms offense because it includes acquisition of
ammunition, but judgment of conviction described the activity as acquisition of a firearm]. However, certain
documents may not be used to prove a firearms conviction under the modified categorical approach.
Lanferman v. BIA, 576 F.3d 84, 89 n.3 (2d Cir. 2012)[adhering to position that firearms offenses are
generic and not circumstance-specific deportable offenses and therefore Nijahawan does not mandate the
use of documents other than those specified under Shepard]. A police report cannot be used to prove a
conviction. Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996). But see Matter of Milian, 25 I&N Dec. 197, 200
(BIA 2010) [a police report can be considered where the report was prepared in connection with the arrest
and was stipulated to in writing as the basis for the guilty plea]; Emile v. INS, 244 F.3d 183, 188 (1st Cir.
2001) [rejecting challenge to admission of police report on due process grounds]. Similarly, where the
judgment of conviction simply specifies a conviction for possession of a weapon, deportability cannot be
sustained, even where extrinsic evidence indicates he used a gun. Matter of Pichardo, 21 I&N Dec. 330
(BIA 1996) [respondent’s testimony that his weapon offense involved a gun was insufficient]. But see
Adefemi v. Ashcroft, 386 F.3d 1022, 1030 n.11 (11th Cir. 2004) (en banc)[distinguishing Pichardo and
finding respondent’s admission corroborating his conviction for a firearms offense was relevant evidence];
Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996) [where admission that weapon was firearm was in
transcript of plea and sentence that is part of record, deportability established]. See also Francis v.
Gonzales, 442 F.3d 131, 141–45 (2d Cir. 2006) [documents other than those listed in §1003.41 may be
submitted, but a “rap sheet”/police report from Jamaica did not support a finding of a conviction under the
Woodby standard even where there was some admission of guilt]; Fequiere v. Ashcroft, 279 F.3d 1325,
1327 (11th Cir. 2002) [statute permits other forms of proof].
7.e. Affirmative Offense; Antique Firearms—The BIA in Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA
2010) held whether a state statute would allow prosecution for an antique firearm and Page 276 therefore
not be considered a firearm under 18 USC §921(a), could be pleaded as an affirmative defense. The
Supreme Court in Moncrieffe v. Holder, 569 U.S. 184, 205–06 (2013) however, called into question the
use of antique firearms as an affirmative defense exception. In light of Moncrieffe, the Board has retreated
from the concept that antique firearms must be pleaded as an affirmative defense. Instead, BIA
recognizes that the claim that a state statute encompasses an antique firearm and therefore cannot be
considered a firearm under federal law is part of the analysis under the categorical approach. See also
U.S. v. Aguilera-Rios, 769 F.3d 626, 633-37 (9th Cir. 2014) [post-Moncrieffe a conviction under Cal. Penal
Code §12021(c)(1) is not a categorical match to immigration law’s firearms offense because a person can
and does get convicted under state law for possession of an antique firearm whereas the federal definition
exempts antique firearms]; Medina-Lara v. Holder, 771 F.3d 1106, 1115-17 (9th Cir. 2014) [relying on
Aguilera-Rios and finding that there is no categorical match between the firearms deportation section and
Cal. Health and Safety Code §12022 because the federal statute excludes antique firearms and the state
statute does not]. However, in Matter of Chairez, 26 I&N Dec. 349, 355-57 (BIA 2014) and Matter of
Chairez, 26 I&N Dec. 819, 821 n.2 (BIA 2016) (Chairez III) the Board held that a prosecution for an
antique firearm was not a “realistic probability” under Utah law and therefore a conviction under Utah
Code §76-10-508.1 for felony discharge of a firearm is a deportable offense].
7.f. Before the Court’s decision in Judulang v. Holder, 565 U.S. 42 (2011), former INA §212(c) could not
waive a firearm offense ground of deportability because there was no comparable ground of
inadmissibility. Cyrus v. Keisler, 505 F.3d 197, 201–02 (2d Cir. 2007) [respondent with gun conviction is
not eligible for INA §212(c) relief and therefore not eligible to reopen under §1003.44]; Matter of Esposito,
21 I&N Dec. 1 (BIA 1995).
7.g. The statute does not bar AOS in a deportation proceeding because conviction of a gun charge is not a
ground of inadmissibility. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992); Malilia v. Holder, 632 F.3d 598,
604 (9th Cir. 2011) [citing Rainford approvingly and recognizing a person who is removable may adjust].
8. Sex Traffickers—Any person described in INA §212(a)(2)(H) pertaining to human trafficking offenses inside
or outside the U.S.
9. Miscellaneous Crimes[INA §237(a)(2)(D), 8 USC §1227(a)(2)(D)]—Persons convicted of violating,

conspiracy, or attempting to violate:
Neutrality laws under 18 USC §960;

Trading with the Enemy Act, 50 USC app. §1 et seq.;

Selective Service laws;
Importation of alien for immoral purpose, INA §278, 8 USC §1328;
Travel restrictions during war or national emergency, INA §215, 8 USC §1185;
Threatening the President under 18 USC §871;
Espionage, sabotage and treason and sedition law violations under 18 USC chaps. 37, 105, or 115,
for which a term of imprisonment of 5 years or more may be imposed.
10. Domestic Violence, Stalking, Protective Order Violations, and Child Abuse [INA §237(a)(2)(E), 8 USC
§1227(a)(2)(E); IIRIRA §350(b)]
cases decided before the modern use of the categorical approach may no longer be good law and the
reader is advised to analyze those older cases under the modern categorical approach. For a detailed
discussion of the categorical and modified categorical approaches, see in this part ¶ I.9 (p.324), infra.
10.b. A Conviction at Any Time After Admission for Domestic Violence, Stalking, Child Abuse, Child Neglect,
or Child Abandonment [8 USC §1227(a)(2)(E)(i); INA §237(a)(2)(E)(i)]—Applies only to convictions or
violations after Sept. 30, 1996 (IIRIRA’s effective date). Page 277
(1) Domestic Violence—The statute defines domestic violence by reference to the definition of “crime of
violence” under 18 USC §16 and includes acts by former as well as current spouse, by a person
similarly situated to a spouse, or by any other individual against a person who is protected from that
person’s acts under federal, state, tribal or local governmental law. A crime constitutes domestic
violence if: (1) it is a COV as defined by 18 USC §16; and (2) the victim was a “protected person”
within the meaning of 8 USC §1227(a)(2)(E)(i). U.S. v. Castleman, 572U.S. __, 134 S.Ct. 1405, n.4
(2014) [finding that domestic violence may generally not require violence force but holding that in the
immigration context where domestic violence is defined in reference to 18 USC §16 that violent force
would be required under Johnson as recognized in Matter of Velasquez]; Onduso v. Sessions, 877
F.3d 1073 (8th Cir. 2017) [finding both subsections of Minn. Stat. §609.2242, subd.1(1) & (2) are COVs
under 16(a) because both require “bodily harm”]; Ramirez-Barajas v. Sessions, 877 F.3d 808 (8th Cir.
2017) [misdemeanor domestic assault under Minn. Stat. §609.2242, subd.1(1) is a COV under §16(a)];
Cornejo-Villagrana v. Sessions, 870 F.3d 1099 (9th Cir. 2017) [conviction for Ariz. Rev. Statute §§13-
1203 and 13-3601 for domestic violence assault against a spouse is subject to removal under the
modified categorical approach because defendant was ultimately convicted of “intentionally, knowingly,
or recklessly causing any physical injury to another person.”]. The BIA and some federal circuits
support a circumstance specific approach following U.S. v. Hayes, 555 U.S. 415 (2009)and Nijhawanto
determine whether the “protected person” element of a conviction is satisfied and brings the offense
within the ambit of INA §237(a)(2)(E)(i). Matter of Milian, 25 I&N Dec. 197, 200 (BIA 2010) [a police
report can be considered under modified categorical approach in proving that Cal. Penal Code §243(e)
(1) is crime of violence where report was prepared in connection with the arrest and was stipulated to
in writing as the basis for the guilty plea]; Matter of Estrada H., 26 I&N Dec. 749, 750-54 (BIA 2016)
[circumstance-specific approach use of police report appropriate in domestic violence charge under
INA §237(a)(2)(E)(i)]; Hernandez-Zavala v. Lynch, 806 F.3d 259 (4th Cir. 2015) [relying on the
“circumstance specific” approach under U.S. v. Hayes and Nijhawan and finding that assault with a
deadly weapon in violation of N.C. Gen. Stat. §14-33(c)(1) is a crime of domestic violence]; Blanco v.
Holder, 624 F.3d 265, 272 (5th Cir. 2010) [relying on U.S. v. Hayes and Nijhawan the court determined
that a crime of domestic violence “need not have as an element the domestic relation of the victim to
the defendant” and that the government can prove the domestic relationship using evidence beyond
the Shepard documents to the “kind of evidence generally admissible” before an IJ]. See also Carrillo
v. Holder, 781 F.3d 1155 (9th Cir. 2015) [willful infliction upon a spouse, cohabitant or mother or father
of defendant’s child under Cal. Penal Code §273.5 is categorically a crime of domestic violence];
Vasquez-Hernandez v. Holder, 590 F.3d 1053 (9th Cir. 2010) [conviction under Cal. Penal Code §273.5
for corporal injury to a spouse was domestic violence conviction and petty offense exception was not
applicable to permit petitioner to apply for cancellation]; Sutherland v. Reno, 228 F.3d 171 (2d Cir.
2000) [Mass. Gen. Laws ch. 265 §13H, indecent assault and battery is a domestic violence crime
because nonconsent is a necessary element for COV and because victim was, in fact, a protected
person as a household member]. But see Cisneros-Perez v. Gonzales, 465 F.3d 386 (9th Cir. 2006)
[following Tokatly and finding that conviction for simple battery where respondent was charged with
domestic violence without more did not establish a domestic violence crime under modified categorical
approach]; Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. 2004) [harassment under Or. Rev. Stat.
§166.065(1)(a)(A) is not a COV because it includes offensive touching that is not aimed at creating
physical injury and does not have as an “element” the use of force]; Tokatly v. Ashcroft, 371 F.3d 613,
619–24 (9th Cir. 2004) [the government must not only establish a COV but domestic nature of
relationship, and it was impermissible for the IJ to rely on testimony of respondent or the victim to
establish domestic violence]; Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) [battery under Ind. Code
§354221, is not a COV even though factually respondent beat his wife. Indiana misdemeanor statute
requires only a touching not necessarily violence and Matter of Martin, 23 I&N Dec. 491 (BIA 2002),
defining COV not persuasive]; Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010) [following Johnson v.
U.S., 559 U.S. 133 (2010) and holding that a misdemeanor assault and battery against a family or
household member under Virginia Code Ann. §18.2-57.2(A) is not categorically Page 278 a crime of
violence because it does not include “violent force” and therefore is not a domestic violence crime
under INA §237(a)(2)(E)(i)]; Matter of Sanudo, 23 I&N Dec. 968, 974–75 (BIA 2006) [domestic battery,
Cal. Penal Code §§242 and 243(e)(1), are not COVs under modified categorical approach where
record only sustained nonviolent touching].
(2) Child Abuse; Child Neglect; Child Abandonment—Broadly construed by the BIA “to mean any offense
involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes
maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse
or exploitation.” Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008) [4th degree assault
under Wash. RC §9A.44.083 was not child abuse under categorical approach]. The terms “child abuse,
child neglect, and child abandonment” under the statute “denote a unitary concept.” Matter of Soram,
25 I&N Dec. 378, 381 (BIA 2010) [no actual harm or injury needed for maltreatment in conviction under
the knowing/reckless subsection of Colo. Rev. Stat. §18-6-401(7)(b)(1)]; Matter of Mendoza Osorio, 26
I&N Dec. 703 (BIA 2016) [finding N.Y. Penal Law §260.10(1) for child endangerment to be
categorically a crime of child abuse because it requires a defendant to knowingly engage in conduct
likely to be injurious to a child and the BIA rejected any realistic probability that there would be conduct
outside of child abuse]. In Matter of Velazquez-Herrera the BIA held that child abuse encompasses
slight physical harm, mental or emotional harm, sexual abuse and exploitation, but refers only to
offenses committed against an individual who has not reached 18. Id. See also Matter of Rodriguez-
Rodriguez, 22 I&N Dec. 991, 996 (BIA 1999); Mondragon-Gonzalez v. U.S. Att’y Gen., 884 F.3d 155
(3d Cir. 2018) [BIA’s interpretation of child abuse under INA §237(a)(2)(E)(i) entitled to deference and
finding that a conviction for unlawful contact with a minor in violation of 18 Pa. Cons. Stat. §6318(a)(5)
is a crime of child abuse]; Pierre v. U.S. Att’y Gen., 879 F.3d 1241 (11th Cir. 2018) [deferring to
Velazquez-Herrera and Soram under Step 2 of Chevron and finding Fla. Stat. §784.085 for battery of a
child “by throwing, tossing, projecting, or expelling certain fluids or materials” as child abuse]; Florez v.
Holder, 779 F.3d 207 (2d Cir. 2015) [upheld removal for child endangerment under N.Y. Penal Law
§260.10(1) for DUI while respondent’s young children were in the car and adoptedthe broad reading in
Soram of child abuse under Chevron deference that it need not involve an act of violence or physical
injury to the child]; Jimenez-Juarez v. Holder, 635 F.3d 1169 (9th Cir. 2011) [child molestation in the
third degree under Wash. Rev. Code §9A.44.089 is child abuse]; Ochieng v. Mukasey, 520 F.3d 1110,
1114–15 (10th Cir. 2008) [Idaho Code Ann. §18-1501(1), injury to child is a crime of child abuse];
Loeza-Dominquez v. Gonzales, 428 F.3d 1156 (8th Cir. 2005) [broadly construing section and finding
malicious punishment of a child under Minn. Stat. §609.377 is child abuse]. But see Ibarra v. Holder,
736 F.3d 903, 916-18 (10th Cir. 2013) [rejecting Velazquez-Herrera and Soram broad view relying on
civil law and finding that a conviction under Colo. Rev. Stat. §§18-6-401(1)(a), (7)(b)(II) for “child
abuse-negligence-no injury” is not a deportable offense because Congress did not intend to include
“non-injurious conduct done with a mens rea of only criminal negligence” under the statute]; Fregozo v.
Holder, 576 F.3d 1030 (9th Cir. 2009) [misdemeanor conviction under Cal. Penal Code §273a(b) for
willful harm or injury to a child is not categorically a crime of child abuse because the full range of
conduct includes potential and not necessarily actual harm to a child]; Velazquez-Herrera v. Gonzales,
466 F.3d 781 (9th Cir. 2006) [prior remand to the BIA of Matter of Velazquez-Herrera to determine if it
was child abuse]; The BIA however clarified Matter of Velazquez-Herrera and held that the offense of
child abuse does not require proof of actual harm or injury to the child and includes “endangerment-
type crimes.” Matter of Soram, 25 I&N Dec. 378 (BIA 2010) [conviction under Colorado Rev. Stat. §18-
6-401(I)(a) where a child is placed in a situation that poses a threat of injury to him is categorically
child abuse even if no actual harm or injury]. But see Richards v. Sessions, 711 F. App’x 50, 53 (2d Cir.
2017) [vacating the petitioner’s removal order and inviting the BIA “to consider on remand whether the
Supreme Court’s recent decision in Esquivel-Quintana v. Sessions, 581 U.S. __, 137 S.Ct. 1562
(2017) impacts the scope or framing of the BIA’s decision in Matter of Soram, 25 I&N Dec. 378 (BIA
2010), and if so, how”].
(3) Stalking—The BIA, after two trips to the Ninth Circuit, reaffirmed its view in Matter of Sanchez-Lopez,
27 I&N Dec. 256, 258 (BIA 2018) that the common elements of stalking Page 279 are: (1) conduct that
was engaged in on more than a single occasion; (2) which was directed at a specific individual; (3) with
the intent to cause that individual or a member of his or her immediate family to be placed in fear of
bodily injury or death; and (4) had the consequence of placing the person in fear. Regarding the fourth
criterion, the BIA found that in the context of California’s stalking statute, Cal. Penal Code §646.9 there
must be a finding of both “subjective and objective consequences” of stalking. But the Board left for
another day whether the fourth criterion required both that the individual and a reasonable person
would have been placed in fear by respondent’s conduct because §646.9 required both. Ultimately, the
BIA overruled its prior decisions in Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012) and found that a
conviction under Cal. Penal Code §646.9 was not a deportable offense. The Board determined that
there was no realistic probability under the Ninth Circuit’s interpretation of Duenas-Alvarez that a
conviction would be limited to a fear of “bodily injury or death” under the third prong of its definition. It
determined that under the categorical approach a conviction under the statute could include fear of
“safety” and was therefore overbroad. The Board also rejected the government argument that it should
reinterpret its own criteria in light of contemporary norms to include fear of “safety” and not just fear of
“bodily injury or death.”
The stalking provision has been upheld against a facial and as-applied void for vagueness challenge.
Arriaga v. Mukasey, 521 F.3d 219 (2d Cir. 2008) [upholding removal order based upon conviction for
stalking under Conn. Gen. Stat. §53a181d(a)].
10.c. Person Found to Have Violated Domestic Violence Injunction, Whether Issued by Civil or Criminal
Court [8 USC §1227(a)(2)(E)(ii)]—Limited to a violation of the “portion of a protection order that involves
protection against credible threats of violence, repeated harassment, or bodily injury…” INA §237(a)(2)(E)
(ii). Alanis-Alvarado v. Mukasey, 558 F.3d 833 (9th Cir. 2009) [Cal. Penal Code §273.6 for violating a
protective order issued pursuant to Cal. Family Code §6320 is a violation of a protective order under the
modified categorical approach even if defendant violated portion of order prohibiting contact or phone
calls]; Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009) [Or. Rev. Stat. §§107.700 to 107.735 qualifies as a
violation of a protection order under the modified categorical approach]. The BIA maintains that a violation
of a “no-contact” provision of an injunction designed to protect a person against abuse is sufficient to find
deportability without an additional showing that the respondent made credible threats of violence,
repeated harassment or bodily injury. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011) [under the modified
categorical approach, respondent was deportable after conviction under Kan. Stat. Ann. §21-3843(a)(1)
for making one nonauthorized telephone call to his wife, thereby violating the no-contact provision of a
protective order issued pursuant to the state Protection from Abuse Act, Kan. Stat. Ann. §60-3106];
Cespedes v. Lynch, 805 F.3d 1274 (10th Cir. 2015) [followed Strydom under Chevron deference and
determined that violation of no-contact provision under Utah Code Ann. §76-5-108(1) was a deportable
offense]. But violation of provisions of order requiring attendance at and payment for counseling program
or requiring payment of costs for supervision during parenting time will not trigger deportability. Matter of
Strydom, 25 I&N at 511. Notwithstanding Strydom’s reference to the modified categorical approach, the
BIA has more recently rejected the use of the categorical or modified categorical approach in determining
whether a respondent is removable under this section. Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017)
[no conviction is necessary for a finding of deportability under the section and therefore the IJ should
consider all “probative and reliable evidence”]. The IJ should decide: (1) whether a State court determined
that respondent has engaged in conduct that violates the portion of the protection order that involved
protection against credible threats of violence, repeated harassment or bodily injury; and (2) whether the
order was issued for the purpose of preventing violent or threatening acts of domestic violence. See also
Rodriguez v. Sessions, 876 F.3d 280 (7th Cir. 2017) [following Garcia-Hernandez and rejecting the
categorical approach because the statute asks whether a court has “determined” there was a violation
which requires a determination that (1) there was a protective order entered; (2) at least one part of the
order involved protection against a credible threat of violence; and (3) a court determined that the
respondent engaged in conduct that violated that part]; Garcia-Hernandez v. Boente, 847 F.3d 869 (7th
Cir. 2017) [rejecting the categorical approach and focusing on the state court’s factual determination Page
280 and following Strydom, the court concluded that violation of the “stay away” provision in the protection
order under 720 ILCS 5/12-3.4 was sufficient to establish a deportable offense].
10.d. Effective Date—Statute applies to convictions or violations occurring after Sept. 30, 1996—IIRIRA
§350(b). Solis-Chavez v. Holder, 662 F.3d 462, 470 n.3 (7th Cir. 2011); Matter of Gonzalez-Silva, 24 I&N
Dec. 218 (BIA 2007) [conviction which predated the effective date of INA §237(a)(2)(E) does not bar
cancellation]. Accord, Mota v. Mukasey, 543 F.3d 1165 (9th Cir. 2008)[inflicting injury upon a child under
Cal. Penal Code §273(d) was not a removable offense because it occurred before the effective date of
INA §237(a)(2)(E)(i)].
10.e. Waiver [INA §237(a)(7)]—The AG may grant a waiver to a person who has been battered or subjected
to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship, upon
a determination that the respondent was acting in self-defense, violated a protective order intended to
protect her/him or was arrested for, convicted of, or pleaded guilty to committing a crime that did not result
in serious bodily injury and there was a connection between the crime and being battered or subject to
extreme cruelty.
11. Sex Offender Who Fails to Register—INA §237(a)(2)(A)(v), 8 USC §1227(a)(2)(A)(v). A conviction under
18 USC §2250 for failing to register as a sex offender is a deportable offense. Under 18 USC §2250 a person
who knowingly fails to register or update a registration under the Sex Offender Registration and Notification
Act and is required to register commits a crime if s/he: (1) is a sex offender as defined under the Sex
Offender Registration and Notification Act due to a conviction under federal law (including the Uniform Code
of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or
possession of the U.S. or (2) travels in interstate or foreign commerce, or enters or leaves, or resides in,
Indian country. See e.g., U.S. v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (en banc) [transferring obscene
material to a minor in violation of 18 USC §1470 is a “sex offense” under Adam Walsh §16911(5)(A)(ii)
requiring registration]. The requirement to register as a sex-offender does not satisfy §2254’s “in custody”
requirement and therefore there was no habeas jurisdiction to challenge the registration requirements.
Calhoun v. Att’y Gen. of Colorado, 745 F.3d 1070 (10th Cir. 2014) [and cases cited therein]
12. Prostitution Eliminated—IMMACT90 eliminated, as a ground of deportation, a person who became a

prostitute or associated with prostitution subsequent to entry.
H. Aggravated Felonies
See also in this part “Other Aggravated Felony Issues,” Section I (p.320), infra.
[INA §§101(a)(43), 237(a)(2)(A)(iii), 8 USC §§1101(a)(43), 1227(a)(2)(A)(iii); S. Rep. No. 55, 101st Cong. 2d
Sess. (1990); 134 Cong. Rec. S17301, S17318 (1988); 136 Cong. Rec. at S17106, S17117; S17741 (Oct. 26–
27, 1990); H.R. Rep. No. 681, 101st Cong. 2d Sess. 1990, reprinted in 1990 U.S.C.C.A.N. 6472, 6553; PL 103-
416, Sec. 222, 140 Cong. Rec. at S14479-02, S14543 (1994), 140 Cong. Rec. at H11291-01, H11293 (1994);
H.R. Rep. No. 104-22 (1995); 141 Cong. Rec. E330 (1995); H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess.
(1996) at 223]
An LPR or other alien is deportable if convicted of an aggravated felony at any time after admission. Matter of
Rosas, 22 I&N Dec. 616 (BIA 1999) [“after admission” includes after AOS]; Ocampo-Duran v. Ashcroft, 254 F.3d
1133, 1134–35 (9th Cir. 2001) [same]. But see Dormescar v. U.S. Att’y Gen., 690 F.3d 1258, 1269 n.11 (11th Cir.
2012) [where respondent was charged as inadmissible for a drug conviction that was vacated and for battery
that was not a CIMT and the BIA terminated proceedings and admitted respondent, the 11th Circuit questioned,
but did not decide, whether DHS could charge respondent with an aggravated felony that occurred before the
termination and “admission”]. DHS must prove the conviction by clear and convincing evidence under INA
§240(c)(3)(A). Nijhawan v. Holder, 557 U.S. 29, 42-43 (2009); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128–29
(10th Cir. 2005) [DHS did not prove by clear and convincing evidence that reduced felony conviction was an
aggravated felony because the reduction of respondent’s conviction to a misdemeanor did not meet the
Roldan/Salazar standards in light of the vagaries of the evidentiary record and the existence of a Utah statute
permitting reduction, which could have occurred for other than rehabilitative purpose].
Note re Categorical Approach—Supreme Court cases, such as Mathis v. U.S., 579 U.S. __, 136 S.Ct. 2243,
2248 (2016); Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013); Descamps v. U.S., 570 U.S. 254 (2013);
Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980, 1986–88 (2015), and others have developed the use of the
categorical approach in determining whether a crime may be a removable offense. As a result, cases decided
before the modern use of the categorical approach may no longer be good law and the reader Page 281 is
advised to analyze those older cases under the modern categorical approach. For a detailed discussion of the
categorical and modified categorical approaches, see in this part ¶ I.9 (p.324), infra.
An aggravated felony is defined under INA §101(a)(43), 8 USC §1101(a)(43); 8 CFR §1.2 as:
1. Murder, rape, or sexual abuse of a minor [INA §101(a)(43)(A)]
1.a. Sexual Abuse of a Minor—The BIA has broadly defined sexual abuse of a minor by relying on the
definition contained in 18 USC §3509(a)(8) that defines sexual abuse to include “the employment, use,
persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to
engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual
exploitation of children, or incent with children.” Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA
1999) [“indecency with a child by exposure” under Tex. Penal Code §21.11(a)(2) was abuse of a minor;
BIA relied on definition under 18 USC §3509(a) and not 18 USC §2242, 2243, and 2246, because §3509
does not require contact]. See also, Correa-Diaz v. Sessions, 881 F.3d 523, 526-29 (7th Cir. 2018)
[deferring under Chevron to the BIA definition of sexual abuse of a minor under Rodriguez-Rodriguez and
holding that Indiana Code §35-42-4-9(a) is categorically a sexual abuse of a minor crime because it
criminalizes conduct with a child under 16]; Cadapan v. U.S. Att’y Gen., 749F.3d 157 (3d Cir. 2014)
[“indecent contact” referenced in 18 PA. Cons. Stat. §3126(a)(7) concerning indecent assault with a
person less than 13 years of age, categorically constitutes “molestation” or “other forms of sexual
exploitation” under 18 USC §3509(a)(8) and therefore constitutes sexual abuse of a minor under
Rodriguez-Rodriguez]; Restrepo v. U.S. Att’y Gen., 617 F.3d 787, 791-800 (3d Cir. 2010) [accepting
Rodriguez-Rodriguez’s broad reading under Chevron deference and rejecting the claim that act must
involve violence]; Espinoza-Franco v. Ashcroft, 394 F.3d 461, 464–65 (7th Cir. 2005) [aggravated sexual
abuse, 720 Ill. Comp. Stat. 5/12-16(b), is an aggravated felony; rejecting formal definition of sexual abuse
of a minor; Congress intended phrase to broadly incorporate all acts that fall with the “ordinary,
contemporary and common meaning of the words”]; Mugalli v. Ashcroft, 258 F.3d 52, 56-60 (2d Cir. 2001)
[accepting §3509(a) as a definition of “sexual abuse” because it is “consonant with the generally
understood broad meaning of the term”]. The Supreme Court, at least in the context of statutory rape, took
a narrower view of the term “sexual abuse of a minor” and limited statutory rape cases, where the issue
was the disparity in age between the perpetrator and the minor, to minors who were under 16 years of
age. Esquivel-Quintana v. Sessions, 581 U.S. __, 137 S.Ct. 1562 (2017) [relying on 18 USC §2243 as the
only federal statute defining sexual abuse of a minor and determining that Cal Penal Code §261.5(c) was
not categorically an aggravated felony because it could punish someone for sex with a 17-year-old]. See
also Correa-Diaz v. Sessions, 881 F.3d 523, 526-29 (7th Cir. 2018) [Indiana Code §35-42-4-9(a) is
categorically a sexual abuse of a minor crime because despite the respondent being 18 at the time it
criminalizes conduct with a child under 16].
Some circuit courts have rejected the BIA’s analysis of sexual abuse of a minor.In Larios-Reyes v. Lynch,
843 F.3d 146, 159-61 (4th Cir. 2016) the Fourth Circuit rejected the BIA’s analysis in Rodriguez-Rodriguez
and followed its own precedent in Diaz-Ibarra by defining the generic crime as a “perpetrator’s physical or
nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” Given
this definition, a third degree sex offense under Md. Code Ann. Crim. Law §3-307 is not sexual abuse of a
minor because a perpetrator need not act for the purpose of sexual gratification to be convicted and
because abuse includes conduct broader than what the INA defines. See also Rangel-Perez v. Lynch,
816 F.3d 591, 598-601 (10th Cir. 2016) [finding that Rodriguez-Rodriguez did not exclusively rely on
§3509(a)(8) and failed to address the mens rea element of sexual abuse and therefore no deference
warranted on that issue]; Amos v. Lynch, 790 F.3d 512, 518-22 (4th Cir. 2015) [because Rodriguez-
Rodriguez does not define generic sexual abuse but only uses 18 USC §3509(a)(8) as a “guide,” the court
could not conclude that a violation of former Md. Code, Art. 27 §35A where the least culpable conduct
was failing to stop child abuse was an aggravated felony]; Flores v. Holder, 779 F.3d 159, 165-67 (2d Cir.
2015) [reversing BIA for analyzing the facts of respondent’s conduct in the modified categorical approach
rather than whether the minimum conduct necessary to violate the appropriate subsection of N.Y. Penal
Law §130.65 was encompassed within the federal definition of sexual abuse under 18 USC §3509(a)].
Page 282
“Abuse of a minor” does not require physical contact. Contreras v. Holder, 754 F.3d 286 (5th Cir. 2014)
[declining to follow Rodriguez-Rodriguez, establishing its own 3-part test, but also holding that a sexual
act does not require physical contact to be abuse of a minor]; Hernandez-Alvarez v. Gonzales, 432 F.3d
763 (7th Cir. 2005) [attempted indecent solicitation of a child under 720 Ill. Comp. Stat. 5/11-6(a), where
solicited person was a police officer]; Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005) [misdemeanor
solicitation of sexual contact of nonspouse, 720 Ill. Comp. Stat. 5/11-14.1(a) is aggravated felony]; Taylor
v. U.S., 396 F.3d 1322, 1328–39 (11th Cir. 2005) [soliciting a minor, Fla. Stat. §794.011(8)(a)]; Chuang v.
U.S. Att’y Gen., 382 F.3d 1299, 1301–02 (11th Cir. 2004) [indecent assault of a child under 16, Fla. Stat.
§800.04 is an aggravated felony because abuse of a minor includes physical or nonphysical misuse or
mistreatment]; Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001); U.S. v. Padilla-Reyes, 247 F.3d 1158
(11th Cir. 2001) [in sentencing enhancement case, Fla. Stat. §800.04 was aggravated felony].
Statutory rape where the minor victim is more than 3 years younger than the perpetrator, does not
categorically constitute sexual abuse of a minor because the federal statute, 18 USC §2243 requires in all
cases that the minor must be younger than 16. Esquivel-Quintana v. Sessions, 581 U.S. __, 137 S.Ct.
1562 (2017) [finding that Cal. Penal Code §261.5(c) is not categorically an aggravated felony because the
statute criminalizes statutory rape with someone 16 or over; reversing Matter of Esquivel-Quintana, 26
I&N Dec. 469 (BIA 2014)]; Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc)
[overturning Afridi; adopting definition of “sexual abuse of a minor” in 18 USC §2243, at least as
tostatutory rape, and holding that Cal. Penal Code §§261.5(c), 286(b)(1), 288a(b)(1) and 289(h) are not
categorical aggravated felonies]. As a result of Esquivel-Quintana the BIA’s decision in Matter of V-F-D-,
23 I&N Dec. 859 (BIA 2006) [Fla. Stat. Ann. §794.05(1), sexual act by a person 24 years or older with a
person 16 or 17 where victim was 16 is abuse of a minor because a child includes any person under 18] is
also in question.
Cases Finding Sexual Abuse of a Minor—Diego v. Sessions, 857 F.3d 1005 (9th Cir. 2017) [Oregon Rev.
Stat. §163.427(1)(a) is categorically sexual abuse of a minor]; Contreras v. Holder, 754 F.3d 286 (5th Cir.
2014) [under Fifth Circuit’s own 3-part test for abuse of a minor, a conviction under Va. Code. Ann. §18.2-
63 is an aggravated felony under the modified categorical approach where the conviction involves an
adult]; Oouch v. DHS, 633 F.3d 119 (2d Cir. 2011) [use of a child in a sexual performance in violation of
N.Y. Penal Law §263.05 is categorically an aggravated felony]; Ganzhi v. Holder, 624 F.3d 23 (2d Cir.
2010) [under modified categorical approach sexual misconduct under N.Y. Penal Law §130.20 is an
aggravated felony]; Restrepo v. U.S. Att’y Gen., 617 F.3d 787, 791-800 (3d Cir. 2010) [N.J. Stat. Ann.
§2C:14-3(a) for aggravated criminal sexual conduct is an aggravated felony]; Gaiskov v. Holder, 567 F.3d
832 (7th Cir. 2009) [sexual misconduct, Ind. Code §35-42-4-9(b) requiring touching by 18-year-old of
minor between 14 and 16 with intent to arouse sexual desire]; Vargas v. DHS, 451 F.3d 1105 (10th Cir.
2006) [contributing to delinquency of a minor, Colo. Rev. Stat. §18-6-701 is an aggravated felony under
modified categorical approach where the record indicated unlawful sexual contact under Colo. Rev. Stat.
§18-3-404(1)(a)]; Santos v. Gonzales, 436 F.3d 323 (2d Cir. 2006) [Conn. Gen. Stat. §53-21(a)(2), contact
with the intimate parts of a child under 16 is an aggravated felony]; Cedano-Viera v. Ashcroft, 324 F.3d
1062, 1065–67 (9th Cir. 2003) [lewdness with a child under 14, Nev. Rev. Stat. §201.230 is an aggravated
felony even if broader in scope than the federal offense under 18 USC §2243(a)]; Bahar v. Ashcroft, 264
F.3d 1309 (11th Cir. 2001) [indecent liberties with a child, N.C. Gen. Stat. §14-202.1 even if it does not
involve physical contact, is an aggravated felony]; Mugalli v. Ashcroft, 258 F.3d 52, 54–61 (2d Cir. 2001)
[statutory rape, N.Y. Penal Law §130.25-2 is aggravated felony]; Emile v. INS, 244 F.3d 183 (1st Cir. 2001)
[indecent assault and battery on a child under 14, Mass. G.L. ch. 265 §13B is an aggravated felony,
relying on definitions at 18 USC §§2241–48]; U.S. v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001)
[attempted 3rd degree child molestation under Washington state law is a misdemeanor, but also an
aggravated felony]; Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001) [misdemeanor sexual abuse of a
minor, 720 Ill. Comp. Stat. 5/12-15(c), is an aggravated felony]; U.S. v. Zavala-Sustaita, 214 F.3d 601 (5th
Cir. 2000) [same Texas statute as abuse of a minor for sentence enhancement]; Lara-Ruiz v. INS, 241
F.3d 934, 939–42 (7th Cir. 2001) [rejecting limitations of 18 USC §2243 and finding Ill. Rev. Stat. 1991 ch.
38, §§12-13(a)(1)–(2) was abuse of a minor]; U.S. v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) [Cal.
Penal Code §288(a), lewd or lascivious Page 283 acts on child under age 14, is an aggravated felony];
U.S. v. Morales-Landa, 18 F.Supp.3d 1015 (S.D. Cal. 2014) [sexual abuse of a minor under Utah Code
§76-5-404.1 is not categorically an aggravated felony but was under the modified categorical approach];
Taylor v. U.S. Att’y Gen., 801 F.Supp.2d 1103 (W.D. Wash. 2011) [sexual assault under Crim. Code of
Canada §271 is an aggravated felony under the modified categorical approach but not categorically
because it also covers sexual assault of adults]; Pequeno-Martinez v. Trominski, 281 F.Supp.2d 902, 914–
17 (S.D. Tex. 2003) [sexual assault of a child, Tex. Penal Code §21.11(a)(1) is aggravated felony; deferred
adjudication did constitute a conviction and offense was an aggravated felony even if no time was
specified]; Santapaola v. Ashcroft,249 F.Supp.2d 181, 199–203 (D. Conn. 2003) [relying on plea
transcript, a conviction under former Conn. Gen. Stat. §53-21 for injury to a minor, made the respondent
removable under divisible part of the statute].
Not Sexual Abuse of a Minor—Esquivel-Quintana v. Sessions, 581 U.S. __, 137 S.Ct. 1562 (2017)
[finding that Cal. Penal Code §261.5(c) is not categorically an aggravated felony because the statute
criminalizes statutory rape with someone 16 or over and the least culpable conduct under the federal
statute defining sexual abuse of a minor, 18 USC §2243, requires the victim be under 16]; Larios-Reyes v.
Lynch, 843 F.3d 146, 159-61 (4th Cir. 2016) [a third degree sex offense under Md. Code Ann. Crim. Law
§3-307 is not sexual abuse of a minor because a perpetrator need not act for the purpose of sexual
gratification to be convicted and because abuse includes conduct broader than what the INA defines];
Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016) [finding Utah conviction under Utah Code §76-5-401
for unlawful sexual activity with a minor is not an aggravated felony because it does not require proof of at
least a “knowing” mens rea or scienter]; U.S. v. Martinez, 786 F.3d 1227 (9th Cir. 2015) [third-degree child
molestation under Wash. Rev. Code §9A.44.089 is not categorically sexual abuse of a minor because it
criminalizes a broader swath of conduct than the generic offense]; Aguilar-Turcios v. Holder, 740 F.3d
1294 (9th Cir. 2014) [court martial under Art. 92 of the Uniform Code of Military Justice for failure to
comply with a lawful general order regarding the improper use of a computer for pornography is not
categorically an aggravated felony and under Descamps there is no divisible statute requiring a modified
categorical approach that would permit an inquiry into child pornography]; Campbell v. Holder, 698 F.3d 29
(1st Cir. 2012) [Conn. Gen. Stat. Ann. §53-21(a)(1) regarding conduct that results in risk to a minor is not
an aggravated felony sexual abuse crime because it includes conduct having nothing to do with sexual
abuse]; Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. 2012) [plea under Cal. Penal Code §243.4(a)
for touching an intimate part of another person was not an aggravated felony for sexual abuse of a minor
under the categorical or modified categorical approach]; U.S. v. Castro, 607 F.3d 566 (9th Cir. 2010) [Cal.
Penal Code §288(c)(1) punishing lewd and lascivious acts on 14- or 15-year-old is not categorically a sex
abuse crime]; Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. 2010) [Ariz. Rev. Stat. §13-1405 for
knowingly engaging in sexual intercourse or oral sexual conduct with person under 18 is not an agg.
felony following Estrada-Espinoza and U.S. v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009)]; Pelayo-Garcia
v. Holder, 589 F.3d 1010 (9th Cir. 2009) [Cal. Penal Code §261.5(d) is not an categorically an aggravated
felony because it does not include the relevant scienter requirement of 18 USC §2243 and it criminalizes
sexual conduct that is not necessarily abusive]; Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.
2008) (en banc) [overturning Afridi; adopting definition of “sexual abuse of a minor” in 18 USC §2243, at
least as tostatutory rape, and holding that Cal. Penal Code §§261.5(c), 286(b)(1), 288a(b)(1) and 289(h)
are not categorical aggravated felonies]; Rebilas v. Keisler, 527 F.3d 783 (9th Cir. 2008) [attempted public
sexual indecency to a minor, Ariz. Rev. Stat. §13-1001, 13-1403(B) is not sexual abuse of a minor
because the minor does not have to even be aware of the offending conduct and the attempt statute is
broader than the federal definition]; Stubbs v. U.S. Att’y Gen., 452 F.3d 251 (3d Cir. 2006) [N.J. Stat. Ann.
§2C:24–4(a), “engag[ing] in sexual conduct which would impair or debauch the morals of the child,” is not
an aggravated felony because it does not require that a past act with a child actually occur as does 18
USC §3509(a)(8) addressed in Matter of Rodriguez-Rodriguez]; Singh v. Ashcroft, 383 F.3d 144 (3d Cir.
2004) [3rd degree unlawful sexual conduct, 11 Del. Code §767 is not sexual abuse of a minor because
the statute does not address minors]; U.S. v. Pallares-Galan, 359 F.3d 1088, 1099–103 (9th Cir. 2004)
[misdemeanor Cal. Penal Code §647.6(a), annoying or molesting a child under 18 is not an aggravated
felony]; Gonzalez v. Ashcroft, 369 F.Supp.2d 442, 447–54 (S.D.N.Y. 2005) [N.Y. Penal Law §263.05,
parents consenting to the participation of their child in a sexual performancehas no scienter requirement];
see also Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005) (Posner, J., dissenting) Page 284 [offense
involving mere solicitation of a sexual act without knowledge that the person solicited is a minor is not
“sexual abuse of a minor”].
Felony Conviction Not Necessary—Includes misdemeanor sexual abuse.Matter of Small, 23 I&N Dec. 448
(BIA 2002) [conviction for 2nd degree misdemeanor sexual abuse, N.Y. Penal Law §130.60(2), is
aggravated felony]; Sharashidze v. Gonzales, 480 F.3d 566 (7th Cir. 2007) [indecent solicitation of a sex
act, 720 Ill. Comp. Stat. 5/11-14.1, was divisible but complaint demonstrated act was against a child];
Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005) [Wash. Rev. Code §9.68A.090, communicating with a
minor was a misdemeanor and although not abuse under categorical approach it was a conviction under
the modified categorical approach]. Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001) [rejecting Matter
of Crammond, 23 I&N Dec. 9 (BIA 2001), vacated on jurisdictional grounds,23 I&N Dec. 179 (BIA 2001),
and finding misdemeanor sexual abuse of a minor under Illinois law is an aggravated felony]; U.S. v.
Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001) [although attempted child molestation in the third degree
is a misdemeanor under Washington State law it is an aggravated felony]; U.S. v. Okeke, 671 F.Supp.2d
744, 750–51 (D. Md. 2009) [fourth-degree sex offense under Maryland law involving an 11-year-old child];
1.b. Rape—Under common law definition of rape sexual intercourse only means nonconsensual penetration
of the female sex organ by the male sex organ and therefore criminal statutes that include broader
categories are not categorically aggravated felonies. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir.
2012) [Mont. Code Ann. §45-5-503(1) regarding sexual intercourse without consent is broader than the
common law definition and therefore is not categorically an aggravated felony, and the court documents
did not establish rape under the modified categorical approach]; but see Matter of Keeley, 27 I&N Dec.
146 (BIA 2017) [rejecting Perez-Gonzalez and adopting a broader definition of rape as encompassing
“digital or mechanical penetration” as well as vaginal, anal, or oral intercourse irrespective of sex];
Elmakhzoumi v. Sessions, 883 F.3d 1170 (9th Cir. 2018) [conviction for sodomy under Cal. Penal Code
§286(i) is categorically a crime of rape]; Silva v. Gonzales, 455 F.3d 26 (1st Cir. 2006) [statutory rape with
14-year-old, Mass. Gen. Laws ch. 265 §23 is an aggravated felony]; Castro-Baez v. Reno, 217 F.3d 1057
(9th Cir. 2000) [rape, Cal. Penal Code §261(a)(3), is aggravated felony]. Rape also requires that the victim
lack consent to the action which includes when he or she is unable to appraise the nature of the sexual
act as a result of a substantial impairment. In Matter of Keeley, supra at 155-58, the Board recognized that
substantial impairment may arise as a result of an intoxicant administered without the person’s consent or
where the person is incapable of giving consent as a result of a mental disease or defect and the
defendant know or had reason to know of the victim’s condition.
1.c. Murder—A second-degree murder conviction that does not involve felony murder and that does not
require an intent to kill is an aggravated felony under the statute. Matter of M-W-, 25 I&N Dec. 748 (BIA
2012) aff’d Wajda v. Holder, 727 F.3d 457, 462-65 (6th Cir. 2013) [second-degree murder under Mich.
Comp. Laws §750.317, where death was caused by drunk driver rear-ending another car causing death
and the statute permitted a conviction where defendant was “extremely reckless” thereby evidencing a
“depraved heart,” but without intent to kill, is an aggravated felony]; Sales v. Sessions, 868 F.3d 779 (9th
Cir. 2017) [aiding and abetting second degree murder is an aggravated felony because the natural and
probable consequences doctrine under California law is not outside the generic scope of aiding and
abetting].
2. Illicit trafficking in controlled substance [INA §101(a)(43)(B) (as defined in 21 USC §802), including “illicit
trafficking” of a controlled substance or a “drug trafficking crime” as defined under 18 USC §924(c)]—The
“drug trafficking crime” definition is found under 18 USC §924(c)(2) and not under 18 USC §924(c)(1); Lopez-
Jacuinde v. Holder, 600 F.3d 1215, 1217-18 (9th Cir. 2010) [rejected attempt to utilize §924(c)(1) which
requires a firearm for conviction as the definitional section].
2.a. Generally—The statute has two parts conceptually. The first is that an aggravated felony drug crime
may involve “illicit trafficking” which is not statutorily defined. The second involves “drug trafficking” which
is defined by specific statutes. Both require that the offense must be a felony under federal law whether or
not it is a felony or misdemeanor under state law. A conviction for “illicit trafficking” involves “illicit
trafficking in a controlled substance” as defined Page 285 in 21 USC §802 and thus the offense must
contain a “trafficking element” which the Supreme Court and lower courts have defined as “some sort of
commercial dealing,” Lopez v. Gonzales, 549 U.S. 47, 53 (2006), and must also contain as an element a
federally controlled substance. The elements for a drug trafficking crime are specifically defined under 18
USC §924(c)(2) as: “any felony punishable under the Controlled Substances Act (21 USC §801 et seq.),
the Controlled Substance Import and Export Act (21 USC §921 et seq.), or the Maritime Drug Law
Enforcement Act (46 USC §1901 et seq.).” Matter of Flores, 26 I&N Dec. 155 (BIA 2013) [traveling in
interstate commerce with the intent to distribute the proceeds of an unlawful drug in violation of 18 USC
§1952(a)(1)(A) is not an aggravated felony under INA §101(a)(43)(B) because it does not involve conduct
punishable under any of the three controlled substances acts]. The Controlled Substances Act also
includes analogues to listed drugs, 18 USC §802(32)(A); the defendant must know the substance
analogue involved is a controlled substance, or know the identity of the substance involved even if s/he
does not know it is a controlled substance. McFadden v. U.S., 135 S.Ct. 2298 (2015). See e.g., Sandoval
v. Yates, 847 F.3d 697 (9th Cir. 2017) [utilizing the categorical approach, the court determined that a
conviction under Oregon Rev. Stat. §485.992(a) which convicts for a mere offer/solicitation to sell drugs is
neither “illicit trafficking” because it does not involve a commercial element nor a “drug trafficking” crime
because federal statutes do not encompass a mere offer to sell drugs as distinguished from delivery or
attempted delivery].
The BIA has held that in determining whether a state offense is punishable as a felony under the
Controlled Substances Act an IJ need not look solely to the provision of that Act that is most analogous or
most similar to the state crime but may look to any crime that is punishable under the Act. Matter of Rosa,
27 I&N Dec. 228 (BIA 2018) [in determining whether a state conviction punishable under N.J. Stat.
§2C:35-7 for possession with intent to distribute cocaine within 1000 feet of school property is an
aggravated felony the adjudicator need not look only at 21 USC §860 which involves selling drugs within a
certain distance of a school but could also look to 21 USC §841(a)(1) which is also a sale of drug statute
but is a narrower subset of 860 because it does not focus on sale at a school].
In determining the categorical approach, the court should look to the status of the federal drug schedules
at the time of the conviction and not at the time of the removal proceeding. Doe v. Sessions, 886 F.3d 203
(2d Cir. 2018) [the deletion of a drug from the federal schedules after respondent’s conviction but before
his removal proceeding still renders his federal conviction categorically a conviction for a drug crime].
(1) Drug Trafficking Crime under Federal Law, Including Whether Drug Is a Controlled Substance—
Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) [delivery of a simulated controlled substance
under Texas law is not an aggravated felony because it is not a controlled substance and it is not drug
trafficking under the CSA]; Villavicencio v. Sessions, 879 F.3d 941, 946-48 (9th Cir. 2018) [where Nev.
Rev. Stat. §454.351 covers drugs contained in the Federal Food, Drug and Cosmetic Act, 21 USC
§301 et seq. it is categorically overbroad because it prohibits drugs not listed in 21 USC §802 and
therefore conviction is not categorically an aggravated felony]; Harbin v. Sessions, 860 F.3d 58 (2d Cir.
2017) [a conviction for criminal sale of a controlled substance in the fifth degree under N.Y. Penal Law
§220.31 is not a categorical aggravated felony drug crime because the reference to a drug schedule
does not make the statute divisible and categorically NY’s drug schedule includes drugs such as
chorionic gonadotropin that are not controlled substances under the CSA]; Singh v. U.S. Att’y Gen.,
839 F.3d 273 (3d Cir. 2016) [under modified categorical approach conviction under 35 Pa. Cons. Stat.
§780-113(a)(30) to a plea to possession with intent to deliver a counterfeit substance under Penn. law
but not under federal law was not an aggravated felony]; Borrome v. U.S. Att’y Gen., 687 F.3d 150,
157-59 (3d Cir. 2012) [distinguishing between distribution of noncontrolled prescription drugs and
controlled substances and finding that conviction under 21 USC §§331(t), 353(e)(2)(A) prohibiting
unlicensed wholesale distribution of prescription drugs in interstate commerce is not categorically an
aggravated felony]; Cheuk Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2009, amended 2010)
[conviction under Cal. Health & Safety Code §11379(a) for the Sale or Transportation of a Controlled
Substance is not categorically a drug trafficking crime because California law regulates the possession
and sale of many substances that are not regulated by the CSA and it is Page 286 not a trafficking or
drug crime under the modified categorical approach because the respondent’s admission and
reference to a document not in the record are insufficient to meet the Shepard standards]; Sandoval-
Lua v. Gonzales, 499 F.3d 1121, 1127–33 (9th Cir. 2007) overruled on other grounds, Young v. Holder,
697 F.3d 976, 989-92 (9th Cir. 2012) (en banc) [transportation of methamphetamines under Cal. Health
& Safety Code §11379(a) encompasses conduct that would not be an offense under the CSA]; Ruiz-
Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) [“DHS has failed to establish unequivocally that the
particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a controlled substance
as defined in section 102 of the Controlled Substances Act”]; cf. Gousse v. Ashcroft, 339 F.3d 91 (2d
Cir. 2003) [finding offense to be an aggravated felony only after conducting analysis to determine that
the record of conviction proved that offense involved a controlled substance listed on federal
schedules referenced in section 102 of the Controlled Substances Act]; U.S. v. Tavizon-Ruiz, 196
F.Supp.3d 1076 (N.D. Cal. 2016) [Ariz. Rev. Stat. §13-3408 is not an aggravated felony pursuant to
Vera-Valdevinos v. Lynch, 649 F.App’x 597 (9th Cir. 2016) because the Arizona statute regulates
substances not listed on the Federal Controlled Substance Schedule].
But see Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014) [even where a state statute (Conn. Gen. Stat.
Ann. §21a-277(a)) on its face covers a controlled substance not included in the Federal schedule,
there must still be a “realistic probability” under Duenas-Alvarez, that the state would prosecute
conduct that falls outside the generic definition to defeat removability]; but see Swaby v. Yates, 847
F.3d 62, 64-69(1st Cir. 2017) [where the state statute encompasses a wider array of scheduled drugs
than the federal government the court rejected the use of Duenas-Alvarez because the state defined
the drug and therefore there is no ambiguity; however, because the nature of the drug is an element of
the offense the court considered the statute divisible and applied the modified categorical approach to
demonstrate respondent’s conviction for selling marijuana was a drug trafficking crime]. See also Doe
v. Sessions, 886 F.3d 203 (2d Cir. 2018) [the deletion of a drug from the federal schedules after
respondent’s conviction but before his removal proceeding still renders his federal conviction
categorically a conviction for a drug crime]; U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en
banc) [Cal. Health & Safety Code §11352(a) is divisible and overbroad and under modified categorical
approach defendant was convicted of drug trafficking offense]; Ibanez-Beltran v. Lynch, 858 F.3d 294
(5th Cir. 2017) [finding Ariz. Rev. Stat. 13-2405(A)(4) on a charge of attempted transportation of
marijuana for sale a divisible statute and an aggravated felony despite ambiguity of state interpretation
because court looked (“peek” pursuant to Mathis)at the plea agreement and judgment and determined
that listed items of statute were elements of the offense]; Bedolla Avila v. U.S. Att’y Gen., 826 F.3d
662, 666-68 (3d Cir. 2016) [without considering trafficking aspect, a conviction under 35 Pa. Cons. St.
§780-113(a)(30) was an aggravated felony under the modified categorical approach where respondent
was convicted of possession with intent to distribute cocaine because it would qualify as a felony under
21 USC §841(a)(1) of the Federal Controlled Substances Act]; U.S. v. Vega-Ortiz, 822 F.3d 1031 1034-
36 (9th Cir. 2016) [Cal. Health & Safety Code §11378 is divisible and possession of meth with intent to
distribute is an aggravated felony because the failure to include L-meth in federal regulations did not
make state statute overbroad as there was not a realistic probability of persecution for it]; Pascual v.
Holder, 723 F.3d 156 (2d Cir. 2013) [N.Y. Penal Law §220.39 criminal sale of a controlled substance is
categorically an aggravated felony because New York’s definition of an “offer to sell” falls within the
generic federal definition of an illicit trafficking offense even though it covers offers to sell]; U.S. v.
Valdavinos-Torres, 704 F.3d 679, 687-89 (9th Cir. 2012) [possession of methamphetamine for sale
under Cal. Health & Safety Code §11378 is a drug trafficking crime under the modified categorical
approach]; Daas v. Holder, 620 F.3d 1050 (9th Cir. 2010) [where petitioner was convicted under current
21 USC §841(c)(2), his argument that it was not a trafficking crime, because it was trafficking in List 1
chemicals (ephedrine and pseudoephedrine) and not a controlled substance, was to no avail because
he was convicted under one of the 3 federal drug laws listed in 924(c)(2)]; Vasquez-Martinez v. Holder,
564 F.3d 712 (5th Cir. 2009) [possession with intent to deliver under Tex. Health & Safety Code Ann.
§481.112 is defined as a felony under the CSA]; Garcia-Echaverria v. U.S., 376 F.3d 507, 511–14 (6th
Cir. 2004) Page 287 [possession with intent to sell even without trafficking is an aggravated felony by
virtue of 21 USC §§841(a)(1) & (b)(1)(D)].
(2) If relying on the trafficking section, it must be a “trafficking” offense under federal law. Moncrieffe v.
Holder, 569 U.S. 184 (2013) [a conviction for intent to distribute marijuana is not an aggravated felony
where the minimum conduct covered under the statute under the categorical approach does not
involve either remuneration or more than a small amount of marijuana]; Cintron v. U.S. Att’y Gen. 882
F.3d 1380 (11th Cir. 2018) [Fla. Stat. §893.135(1)(c)1 is categorically not an aggravated felony drug
“trafficking” crime despite listing sale, purchase, manufacture, delivery, possession and bringing drugs
into Florida because these are not elements of the offense but means of proving “drug trafficking” and
the least culpable conduct—possession—is not an aggravated felony under the CSA; Spaho and Fla.
Stat. §893.13(1)(a) distinguished]; Francisco v. U.S. Att’y Gen., 884 F.3d 1120 (11th Cir. 2018)
[followed Cintron and found that Fla. Stat. §893.135(1)(b)1.c was also not an aggravated felony]; Ming
Wei Chen v. Sessions, 864 F.3d 536 (7th Cir. 2017) [possession with intent to deliver more than 30 but
not more than 400 grams of marijuana under 720 ILCS §550/5(d) is not categorically illicit trafficking
because Moncrieffe provided that a “small amount” of drugs for no remuneration was not a trafficking
offense and the BIA’s reading that Moncrieffe determined that only 30 grams or less was a small
amount was in error; here the amount could have been 30.0001 grams which would still be a small
amount]. See also Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017) [delivery of a controlled
substance (heroin) under Or. Rev. Stat. §475.992(1)(a) is not categorically an aggravated felony
because delivery may be based on mere solicitation]; Gordon v. U.S. Att’y Gen. 861 F.3d 1314 (11th
Cir. 2017) [Fla. Stat. §893.13(1)(a) under Spaho is divisible, but crime is not an aggravated felony
under modified categorical approach because conviction was for unlawful selling or delivering and
delivery does not necessarily include an element of consideration/remuneration]; U.S. v. Lopez-
Chavez, 757 F.3d 1033, 1043 n.7 (9th Cir. 2014) [Moncrieffe exception for conviction that does not
involve remuneration applies to both distribution and possession with intent to distribute]; Thomas v.
U.S. Att’y Gen., 625 F.3d 134, 141-48 (3d Cir. 2010) [misdemeanor conviction under N.Y. Penal Law
§221.40 for sale of marijuana was not an aggravated felony because it did not contain a “trafficking
element” as a person may be convicted if he “gives” or “disposes” of marijuana; the modified
categorical approach did not establish the noncitizen had been convicted of sale because they could
not use the police report under Shepard to establish sale]; Martinez v. Mukasey, 551 F.3d 113, 119–22
(2d Cir. 2008) [4th degree criminal sale of marijuana, N.Y. Penal Law §221.40 is not categorically a
trafficking crime because it could have been a nonremunerative transfer and therefore a misdemeanor
under 21 USC §841(b)(4)]; Evanson v. U.S. Att’y Gen., 550 F.3d 284 (3d Cir. 2008) [modified
categorical approach did not establish that conviction under 35 Pa. Cons. Stat. §780-113(a)(30) was
an illicit trafficking aggravated felony because there was no proof of remuneration or more than a small
amount of marijuana]; Arce-Vences v. Mukasey, 512 F.3d 167, 170–71 (5th Cir. 2007) [simple
possession of more than 50 pounds but less than 200 pounds, Tex. Health & Safety Code §481.121(b)
(5) is not an aggravated felony post-Lopez]; Jeune v. U.S. Att’y Gen., 476 F.3d 199 (3d Cir. 2007)
[respondent convicted under statute that may or may not be a categorical drug trafficking crime;
insufficient evidence to indicate this was a trafficking offense under modified categorical approach,
even though sentencing was under drug trafficking provision]; U.S. v. Gonzales, 484 F.3d 712, 714 (5th
Cir. 2007) [Texas offense, offering to sell a controlled substance does not come within definition of drug
trafficking offense under USSG §2L1.2]; Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076–79 (9th Cir.
2007) [conviction under Cal. Health & Safety Code §11377 for methamphetamine is not categorically a
conviction under the CSA]; Wilson v. Ashcroft, 350 F.3d 377, 381–82 (3d Cir. 2003) [reversing
aggravated felony finding where it was unclear if NJ possession with intent to distribute fell within the
841(b)(4) exception to felony penalties under 21 USC §841(b)(1)(D) regarding a small amount of
marijuana for no remuneration]; Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151–54 (9th Cir. 2003) [AZ
money laundering statute is not drug trafficking crime because full range of conduct did not encompass
drug trafficking and IJ could not rely on presentence report]; Steele v. Blackman, 236 F.3d 130 (3d Cir.
2001) [distribution of less than 30 grams of marijuana without remuneration is not illicit trafficking
crime]. Page 288
But see U.S. v. Verduzco-Rangel, 884 F.3d 918 (9th Cir. 2018) [Cal. Health & Safety Code §11378 is
divisible and under modified categorical approach, felony possession for sale of methamphetamine is
a drug trafficking crime because it is “illicit trafficking”]; U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir.
2017) (en banc) [Cal. Health & Safety Code §11352(a) is divisible and under modified categorical
approach defendant was convicted of drug trafficking offense]; Spaho v. U.S. Att’y Gen. 837 F.3d 1172,
1177 (11th Cir. 2016) [finding that Fla. Stat. §893.13(1)(a)(2) was divisible for the “illicit trafficking”
component]; Flores-Larrazola v. Lynch, 840 F.3d 234, 238-39 (5th Cir. 2016) [finding that a state crime,
such as Ark. Code Ann. §5-64-401(a), can constitute illicit trafficking in a controlled substance even if it
does not qualify as a drug trafficking crime as defined in 18 USC §924(c)(2)]; Lopez v. Lynch, 810 F.3d
484, 488-90 (7th Cir. 2016) [conviction under Ind. Code §35-48-4-1(a)(1)(C) for knowingly delivery of
cocaine is an aggravated felony under modified categorical approach]; U.S. v. Gonzalez-Corn, 807
F.3d 989, 993-95 (9th Cir. 2015) [Possession with Intent to Distribute Less Than 50 Kilograms of
Marijuana under the CSA where it is a felony is an aggravated felony; the categorical approach under
Moncrieffe is unnecessary because the difference between a felony and misdemeanor is a matter of
federal law by comparing sections of the CSA and not comparing a state offense to the CSA as under
Moncrieffe]; Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014) [possession for sale of marijuana
under Cal. Health & Safety Code §11359 is an aggravated felony because sale contemplates a
transfer in exchange for money]; Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013) [notwithstanding
Moncrieffe third-degree criminal sale of a controlled substance in violation of N.Y. Penal Law §220.39
is categorically an aggravated felony]; James v. Holder, 698 F.3d 24 (1st Cir. 2012) [possession with
intent to sell a controlled substance (marijuana) under Conn. Gen. Stat. Ann. §21a-277(b) was a drug
trafficking crime under modified categorical approach]; Catwell v. U.S. Att’y Gen., 623 F.3d 199, 205-09
(3d Cir. 2010) [modified categorical approach established that conviction under 35 Pa. Cons. Stat.
§780-113(a)(30) for possession with intent to deliver 120.5 grams of marijuana was not a “small
amount” within the meaning of 21 USC §841(b)(4) and was therefore an aggravated felony]; Lopez-
Jacuinde v. Holder, 600 F.3d 1215 (9th Cir. 2010) [conviction for possession of pseudoephedrine with
intent to manufacture methamphetamine or any of its analogs in violation of Cal. Health & Safety Code
§11383(c)(1) is categorically an aggravated felony]; U.S. v. Reveles-Espinoza, 522 F.3d 1044, 1047–
48 (9th Cir. 2008) [felony cultivation of marijuana, Cal. Health & Safety Code §11358 is an aggravated
felony]; Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066–68 (9th Cir. 2006) [Cal. Health & Safety
Code §11366, opening or maintaining a place for the purpose of unlawfully selling, giving away, or
using controlled substances is an aggravated felony]; U.S. v. Palacios-Quinonez, 431 F.3d 471 (5th
Cir. 2005) [Cal. Health & Safety Code §11351, which includes “purchasing for purposes of sale” is an
aggravated felony]; Ali v. Ashcroft, 395 F.3d 722, 727–28 (7th Cir. 2005) [possession of 200 grams or
less of THC with intent to deliver, Wis. Stat. §961.41(1m)(h)(1), is an aggravated felony]; Gousse v.
Ashcroft, 339 F.3d 91 (2d Cir. 2003) [Conn. Gen. Stat. 21a-277(a) is an aggravated felony because the
drug hypothetically sold was a drug listed under federal law, but use of categorical approach was
complicated by respondent’s Alford plea where he did not admit facts of a crime]; U.S. v. Soto-Castelo,
621 F.Supp.2d 1062, 1072 (D. Nev. 2008) [Nev. Rev. Stat. §453.337, possession of controlled
substance with intent to sell is an aggravated felony]; Pinet v. USCIS, 556 F.Supp.2d 55, 58 (D.N.H.
2008) [use of communication facility to facilitate a drug transaction under 21 USC §843(b) is an
aggravated felony]; Evola v. Carbone, 365 F.Supp.2d 592 (D.N.J. 2005) [same].
(a) Telephone facilitation may be a drug trafficking crime. U.S. v. Orihuela, 320 F.3d 1302 (11th Cir.
2003) [telephone facilitation can constitute drug trafficking for purpose of sentence enhancement
where underlying offense was felony and sentence imposed exceeded 13 months]; U.S. v. Zuñiga-
Guerrero, 460 F.3d 733, 739 (6th Cir. 2006) [same, following Orihuela and cases cited therein];
Kayrouz v. Ashcroft, 261 F.Supp.2d 760, 763–64 (E.D. Ky. 2003).
(b) Solicitation may not be a drug trafficking offense—Sandoval v. Sessions, 866 F.3d 986 (9th Cir.
2017) [delivery of a controlled substance (heroin) under Or. Rev. Stat. §475.992(1)(a) is not
categorically an aggravated felony because delivery may be Page 289 based on mere solicitation];
Sandoval v. Yates, 847 F.3d 697 (9th Cir. 2017) [utilizing the categorical approach, the court
determined that because a conviction under Oregon Rev. Stat. §485.992(a) includes solicitation as
an offer to deliver a controlled substance, the statute is broader than the federal statute which only
includes actual delivery or attempted delivery and does not include a simple offer; therefore the
state conviction is not a categorical match to the federal statute]; Rosas-Castaneda v. Holder, 655
F.3d 875 (9th Cir. 2011) overruled on other grounds, Young v. Holder, 697 F.3d 976, 989-92 (9th Cir.
2012) (en banc) [followed Sandoval-Lua post REAL ID Act and found that Ariz. Rev. Stat. §13-3405
contains solicitation offenses because it includes the “offer” to transport marijuana for sale and
therefore is not necessarily a drug trafficking crime]; U.S. v. Aguilar-Ortiz, 450 F.3d 1271 (11th Cir.
2006) [solicitation to deliver cocaine, Fla. Stat. §777.04(2), when it involves a small quantity (and an
amount less than the trafficking definition Fla. Stat. §893.135(1)(b) of 28 grams or more), is, under
the categorical approach, attempted possession without intent to distribute and is therefore not a
drug trafficking crime for purposes of sentence enhancement]; Leyva-Licea v. INS, 187 F.3d 1147
(9th Cir. 1999) [CSA does not mention solicitation, thus solicitation to possess marijuana for sale
under AZ law is not an aggravated felony]. But See Rendon v. Mukasey, 520 F.3d 967, 973–76 (9th
Cir. 2008) [Kan. Stat. Ann. §65-4163(a) was not categorically an aggravated felony because it
contains a solicitation component; however, under modified categorical approach, conviction was
clearly possession with intent to sell].
2.b. BIA Approach—The BIA has established a general approach in determining what constitutes a drug
trafficking crime. See Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), Matter of Davis, 20 I&N Dec. 536
(BIA 1992). Under the Davis/Barrett approach there are 2 routes to consider: (1) whether the conviction
involved “illicit trafficking in any controlled substance” or (2) whether the conviction is defined as a “drug
trafficking crime (as defined in 924(c) of Title 18).” This approach was confirmed by amendments to the
statute that added the term “any illicit trafficking in any controlled substance” to the definition of
aggravated felony and acknowledged that the definition encompassed offenses “whether in violation of
Federal or State law.” See §501 of IMMACT90, PL 101-649, 104 Stat. 4978, 5048, and §306(a)(1) MTINA,
PL 102-232, 105 Stat. 1733, 1751 (1991); See also H.R. Rep. No. 681 (1990), reprinted at 1990
U.S.C.C.A.N. 6472 at 6553; Paxton v. INS, 745 F.Supp. 1261 (E.D. Mich. 1990); and Leader v. Blackman,
744 F.Supp. 500 (S.D.N.Y. 1990).
2.c. First Prong of Davis/Barrett
(1) In General—A conviction for “illicit trafficking in a controlled substance” occurs if: (1) the offense is a
felony under the law of the convicting sovereign whether state or federal and (2) the offense contains a
“trafficking element” such that it involves “the unlawful trading or dealing of a controlled substance.”
Matter of Davis, 20 I&N Dec. at 541. It must involve a “commercial transaction” or “passing of goods
from one person to another for money or other consideration.” Matter of L-G-H-, 26 I&N Dec. 365, 371
n.9 (BIA 2014); Matter of Flores, 26 I&N Dec. 155 (BIA 2013) [traveling in interstate commerce with the
intent to distribute the proceeds of an unlawful drug business in violation of 18 USC §1952(a)(1)(A) is
not an aggravated felony under INA §101(a)(43)(B) becauseit does not involve unlawful trading or
dealing in drugs but conduct after unlawful trading or dealing]; Matter of Sanchez-Cornejo, 25 I&N Dec.
273, 275 (BIA 2010)Thus, an offense that is not a felony and/or lacks a “sufficient nexus to the trade or
dealing of controlled substances,” Id., is not “illicit trafficking in a controlled substance.” In determining
whether the statute is for drug trafficking, it is necessary to look beyond the title of the statute to
determine the actual charge and conviction. Gerbier v. Holmes, 280 F.3d 297, 313–14 (3d Cir. 2002)
[respondent was convicted under a Delaware trafficking statute but pleaded guilty only to possession
of between 5 and 50 grams of cocaine, which is not trafficking]; Cf. Flores-Powell v. Chadbourne, 677
F.Supp.2d 455, 464–79 (D. Mass. 2010) [discussed, but did not resolve on jurisdictional grounds,
whether possession with intent to distribute less than 12 grams of marijuana under Mass. Gen. Laws,
Chap. 94C, Sect. 32C(a) was an aggravated felony given the “mitigating exception” of 21 USC §841(b)
(4)]. But see Spaho v. U.S. Att’y Gen. 837 F.3d 1172, 1177 (11th Cir. 2016) Page 290 [finding that Fla.
Sta. §893.13(1)(a)(2) was divisible for the “illicit trafficking” component]; but see Gordon v. U.S. Att’y
Gen. 861 F.3d 1314 (11th Cir. 2017) [Fla. Stat. §893.13(1)(a) under Spaho is divisible, but crime is not
an aggravated felony under modified categorical approach because conviction was for unlawful selling
or delivering and delivery does not necessarily include an element of consideration/remuneration].
(2) Burden of Proof re Whether Transaction Too Small to Constitute Drug Trafficking—In Moncrieffe v.
Holder, 569 U.S. 184, 200 (2013), the Court rejected the BIA’s decision in Matter of Castro Rodriguez,
25 I&N Dec. 698 (BIA 2012) that an applicant wishing to avoid the aggravated felony label in an “intent
to distribute” case should prove a “small amount of marihuana for no remuneration” under 21 USC
§841(b)(4) following the Court’s decision in Nijhawan. The Court found the Board’s approach is
“inconsistent with both the INA’s text and the categorical approach,” because the “INA provision asks
what the noncitizen was ‘convicted of,’ not what he did.…” Moncrieffe, 569 U.S. at 199–200.
(3) Mens Rea Not Required—The BIA, has held that “illicit trafficking” is broadly defined. It need not
include a mens rea element with respect to knowledge of the illicit nature of the controlled substance at
least where there is an affirmative defense that the defendant had no knowledge of the illicit nature
and where the state must prove he was aware of the presence of a substance (apart from its illegality).
Matter of L-G-H-, 26 I&N Dec. 365, 369-73 (BIA 2014) [Fla. Stat. §893.13(1)(a)(1) includes conduct
that is divisible and despite lacking mens rea constitutes illicit trafficking and therefore an aggravated
felony despite lacking mens rea]; Accord Choizilme v. U.S. Att’y Gen., 886 F.3d 1016 (11th Cir. 2018)
[although mens rea is a requirement of an aggravated felony “drug trafficking crime” see Donawa, the
court, following Matter of L-G-H-, held that it is not a requirement for an aggravated felony “illicit
trafficking” crime and therefore the lack of mens rea inFla. Stat. §893.13(1)(a)(1) does not prohibit an
aggravated felony finding]. But see U.S. v. Valdivia-Flores, 876 F.3d 1201, 1206-10 (9th Cir. 2017) [a
conviction for possession of heroin with intent to distribute under Wash. Rev. Code §69.50.401was not
a drug trafficking aggravated felony because the Washington statute defines aiding and abetting more
broadly than the federal statute in that Washington requires only knowingly committing the crime
whereas the federal statute requires proof of “specific intent”].
2.d. Second Prong of Davis/Barrett
(1) In General—A state drug conviction could be an aggravated felony if it is analogous to an offense
punishable under one of the 3 federal acts specified in 18 USC §924(c)(2) and is a felony under
federal law. Matter of Davis, 20 I&N Dec. at 543, see also Matter of L-G-, 21 I&N Dec. 89 (BIA 1995),
reaff’d by Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999). But see Matter of Ferreira, 26 I&N Dec. 415
(BIA 2014) [even where a state statute (Conn. Gen. Stat. Ann. §21a-277(a)) on its face covers a
controlled substance not included in the Federal schedule, there must still be a “realistic probability”
under Duenas-Alvarez, that the state would prosecute conduct that falls outside the generic definition
to defeat removability]; but see Swaby v. Yates, 847 F.3d 62, 64-66 (1st Cir. 2017) [rejecting use of
Duenas-Alvarez where statute defines crimes]. Under this approach, some courts have held that it is
not necessary that the conviction have a trafficking component. Bedolla Avila v. U.S. Att’y Gen., 826
F.3d 662, 666-68 (3d Cir. 2016) [without considering trafficking aspect, a conviction under 35 Pa. Cons.
St. §780-113(a)(30) was an aggravated felony under the modified categorical approach where
respondent was convicted of possession with intent to distribute cocaine because it would qualify as a
felony under 21 USC §841(a)(1) of the Federal Controlled Substances Act]; Daas v. Holder, 620 F.3d
1050 (9th Cir. 2010) [where petitioner was convicted under current 21 USC §841(c)(2), his argument
that it was not a trafficking crime, because it was trafficking in List 1 chemicals (ephedrine and
pseudoephedrine) and not a controlled substance, was to no avail because he was convicted under
one of the 3 federal drug laws listed in 924(c)(2)]; The second requirement under Matter of Davis that
the person must be convicted of a crime that is a felony under federal law was upheld by the Supreme
Court in Lopez v. Gonzales, 549 U.S. 47 (2006) [rejecting approach in Matter of Yanez-Garcia, 23 I&N
Dec. 390 (BIA 2002) that a state felony conviction is an aggravated felony under 18 USC §924(c)(2)
even if it is not a felony under federal law]. In Lopez, Page 291 the Court determined that a South
Dakota conviction for aiding and abetting another person’s possession of cocaine, while a felony under
state law, could not be an aggravated felony that barred cancellation of removal because under federal
law the conviction is treated as a misdemeanor. The Court held that “a state offense constitutes a
‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a
felony under that federal law.” 549 U.S. 47, 60 (2006). In reaching its conclusion, the Court noted that:
(1) ordinarily “trafficking” “means some sort of commercial dealing” which was absent from the
possession charge and that to “turn simple possession into trafficking [is] just what the English
language tells us not to expect”; (2) there are a limited number of crimes where Congress has
specifically defined possession crimes as trafficking, see 549 U.S. 47, 55 n.6 (2006); (3) the language
in the aggravated felony statute requiring that it be a “felony punishable under the [CSA]” means that it
must be a felony under federal law and “using the phrase to cover even a misdemeanor punishable
under the Act would be so much trickery, violating ‘the cardinal rule that statutory language must be
read in context’ ”; (4) the language in INA §101(a)(43) stating that aggravated felonies apply to an
offense “whether in violation of Federal or State law” is limited to describing generic offenses, such as
trafficking offenses, whether under state or federal law but that the crime must still be a felony under
federal law; (5) the definition under 21 USC §802(13) does not apply in determining whether a
conviction is a felony because it must be defined as a felony under the CSA, see 549 U.S. 47, 56 n.7
(2006); (6) the government’s reading of the cancellation provision barring relief for aggravated felons
when states define conduct as felonies would undermine the federal scheme. See also Matter of V-X-,
26 I&N Dec. 147, 153 (BIA 2013) [remanding under Moncrieffe to determine whether conviction for
delivery of marijuana is an aggravated felony or particularly serious crime to deny asylum/withholding].
(2) Mens Rea Requirement—In addition, for a state drug offense to qualify as an aggravated felony
under the federal “drug trafficking crime” definition, the offense must require the same intent or
knowledge of the illicit nature of the drug required under federal law. Sarmientos v. Holder, 742 F.3d
624 (5th Cir. 2014); Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013).[holding that Fla. Stat.
§893.13(1)(a)(1) is not a drug trafficking crime under the second prong/analogous to federal law test
because it does not require a mens rea for conviction]. But see Spaho v. U.S. Att’y Gen. 837 F.3d 1172
(11th Cir. 2016) [distinguishing Donawa and finding that under the same Florida Statute mens rea,
while relevant to the drug trafficking crime component, was not relevant to make the crime an
aggravated felony under the “illicit trafficking” component because illicit trafficking did not have a
heightened mens rea component].
(3) For cases pre-Lopez, see the 14th and prior editions of this book.
(4) Felony Under State or Federal Law?—Prior to the Supreme Court’s decision in Lopez, the BIA held
that a state offense is an aggravated felony under 18 USC §924(c)(2) if it is a felony under state law
even if it is not a felony under federal law. Matter of Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002).
Conversely, the BIA held that when a conviction is not a felony under state law, it will not be
considered an aggravated felony. Matter of Elgendi, 23 I&N Dec. 515 (BIA 2002), superseded by U.S.
v. Simpson, 319 F.3d 81 (2d Cir. 2002) [2 convictions of 5th degree misdemeanor possession of
marijuana, N.Y. Penal Law §221.10 was not a felony under 21 USC §802(13) and not an aggravated
felony]; Matter of Santos-Lopez, 23 I&N Dec. 419 (BIA 2002) [possession of marijuana, Tex. Penal
Code §481.121 is a misdemeanor and is not an aggravated felony even though possession of
marijuana is punishable under the CSA, 21 USC §844(a)]. However, while Lopez made clear that a
state conviction is a “drug trafficking crime” aggravated felony only if the offense would be a felony
under federal law, it, at the same time, made clear that a state offense may be such an aggravated
felony where it is a misdemeanor under state law but a felony under federal law. Lopez v. Gonzales,
549 U.S. 47, 55 n.6 (2006); Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) [conspiracy to distribute
marijuana in violation of Maryland law, although a misdemeanor, is a drug trafficking crime aggravated
felony under the categorical approach because its elements correspond to the elements of the federal
felony of conspiracy to distribute an indeterminate quantity of marijuana under 21 USC §§841(a)(1) &
(b)(1)(D) and 846]; Matter of Davis, 20 I&N Dec. 536 (BIA 1992); Matter of Ponce de Leon, 21 I&N
Dec. 154 (BIA 1996) Page 292 [sale of marijuana under state law is aggravated felony if it is drug
trafficking crime and felony under federal law]. But see U.S. v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I.
1999) [Mass. misdemeanor for first offense possession with intent to distribute was not aggravated
felony under Sentencing Guidelines]. To determine whether the offense constitutes an aggravated
felony under federal law, it is only necessary that there is a federal analogue under one of the 3 federal
statutes and that it is punishable as a felony.
(5) Whether a federal offense is a felony is controlled by 18 USC §3559, which defines a felony as an
offense for which the term of imprisonment exceeds one year. See also, Matter of Crammond, 23 I&N
Dec. 9 (BIA 2001), vacated on jurisdictional grounds,23 I&N Dec. 179 (BIA 2001) [felony is defined as
a term of “more than 1 year” imprisonment under 18 USC §3559(a)(5); misdemeanor is defined as
“one year or less” under 18 USC §§3559(a)(6)–(8). See Lopez v. Gonzales, 549 U.S. 47 (2006) [“a
state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes
conduct punishable as a felony under that federal law.”].
(6) State misdemeanors may be drug trafficking crime aggravated felonies if they proscribe conduct that
is punishable as a felony under federal law. See Lopez v. Gonzales, 549 U.S. 47, 55 n.6 (2006)
[despite the clear “English language” distinction between possession and trafficking, Congress has at
times defined certain possession offenses, such as possession of cocaine base or recidivist
possession, as drug trafficking crimes]. Both the BIA and the courts have looked to 21 USC §844(a) as
an analogous federal statute in determining whether the state crime is a federal felony. Under 21 USC
§844(a), prior to August 3, 2010, a person convicted for the first time of possession of more than 5
grams of crack was considered an aggravated felon because possession of such an amount of crack
was treated as a federal felony even if it was only a misdemeanor possession under state law.
Possession of 5 grams or more of crack cocaine is no longer a federal felony effective Aug. 3, 2010.
See Fair Sentencing Act, PL 111-220, Sec. 3. If there was a prior drug conviction, the sentence may be
2 years. Thus, a state recidivist possession charge may under certain circumstances be analogous to
a felony under 21 USC §844(a) and therefore be an aggravated felony. Under this statute courts prior
to Carachuri-Rosendo have found that two state misdemeanor possession charges are an aggravated
felony. See “Recidivist Possession,” ¶ (7), below.
(7) Recidivist Possession Post–Lopez v. Gonzales—In Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010), the Court held that a second or subsequent simple possession offense is not an aggravated
felony barring cancellation of removal where the state conviction was not based upon the finding of a
prior conviction. The Court rejected the “hypothetical” approach that would allow an IJ to speculate that
a person could have been convicted of recidivist possession when he was neither charged with it or
given notice, or an opportunity, to respond to such a charge in the second possession conviction and
where he was not “actually convicted” of recidivist possession. The Court, following Lopez, also
criticized, as “unorthodox,” an approach that would distort the common sense meaning of “aggravated
felony” to allow someone convicted of possession of a trivial amount of a prescription drug and
sentenced to 10 days to be considered an aggravated felon. Further, following Leocal, the Court held
that to the degree there are ambiguities in “criminal statutes referenced in immigration laws” they
should be construed in the noncitizen’s favor. See also Espinal v. Holder, 636 F.3d 703, 707-08 (5th
Cir. 2011) [two or more simple possession offenses under state law, following Carachuri-Rosendo do
not equal an aggravated felony]; Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2009) [“whatever petitioner
was convicted of under a state law must correspond with the crime of recidivist possession under the
CSA…”]; Rashid v. Mukasey, 531 F.3d 438, 448 (6th Cir. 2009). But see Matter of Cuellar, 25 I&N Dec.
850, 860-66 (BIA 2012) [where respondent entered a plea of guilty to a municipal ordinance of
Possession of Marijuana after Previous Conviction and the elements correspond to recidivist
possession under the CSA, the Board determined it was an aggravated felony even where the
procedures specified in Kan. Stat. Ann. Are “not as elaborate as those described in 21 USC §851” for
recidivist possession]. Page 293
2.e. Travel Act and telephone facilitation violations may be aggravated felonies. U.S. v. Orihuela, 320 F.3d
1302 (11th Cir. 2003) [telephone facilitation can constitute drug trafficking for purpose of sentence
enhancement where underlying offense was felony and sentence imposed exceeded 13 months]; U.S. v.
Zuñiga-Guerrero, 460 F.3d 733, 739 (6th Cir. 2006) [same following Orihuela and cases cited therein];
Evola v. Carbone, 365 F.Supp.2d 592 (D.N.J. 2005) [conviction for 21 USC §843(b) regarding the use of a
communication device to facilitate a conspiracy to distribute and possess with intent to distribute a
controlled substance is an aggravated felony]. One court has found that a violation of the Travel Act is a
violation of a law relating to aggravated felonies concerned with drug trafficking where respondent was
transporting drugs in interstate commerce. Urena-Ramirez v. Ashcroft, 341 F.3d 51, 53–57 (1st Cir. 2003)
[fact that Travel Act involves other criminal conduct does not mean it is not also a law relating to a
controlled substance].
3. Illicit trafficking in Any Firearms or Destructive Devices [INA §101(a)(43)(C), as defined in 18 USC §921;
or explosive materials as defined in 18 USC §841(c) (see also ¶ 5, infra)]—Franco-Casasola v. Holder, 773
F.3d 33 (5th Cir. 2014) [finding conviction under 18 USC §554(a) regarding exporting or attempting to export
merchandise contrary to any law or regulation of the U.S. as a divisible statute on the theory that reference to
other statutes and regulations provide the specific “elements” of the offense and finding conviction an
aggravated felony because it was selling arms to Guatemala in violation of the Arms Export Control Act];
Soto-Hernandez v. Holder, 729 F.3d 1 (1st Cir. 2013) [deferring under Chevron despite BIA’s nonprecedent
decision, the court found that the one-time sale of a firearm by delivering the weapon without complying with
Rhode Island statute R.I. Gen. Laws §11-47-35 is a trafficking crime]; Kuhali v. Reno, 266 F.3d 93, 107–10
(2d Cir. 2001) [conspiracy to export firearms and ammunition without a license under 22 USC §2778 is an
aggravated felony because the BIA’s interpretation defines trafficking in “business and merchant” terms
regarding “trading, selling or dealing in goods”]. But see U.S. v. Ochoa, 861 F.3d 1010, 1015-18 (9th Cir.
2017) [in prosecution for illegal reentry, conviction for conspiracy to export defense articles in violation of 22
USC §2778(a) was not categorically an aggravated felony because 2778(a) incorporation of the Munitions
List sweeps more broadly than the generic definition of the aggravated felony crime and the Munitions List
does not make the crime divisible]; Joseph v. U.S. Att’y Gen., 465 F.3d 123 (3d Cir. 2006) [18 USC §922(a)
(3), transporting or receiving firearms purchased or obtained in another state is not a trafficking offense and
therefore not an aggravated felony].
4. Any offense related to laundering of monetary instruments [INA §101(a)(43)(D)] as described in 18 USC
§§1956 or 1957, relating to engaging in monetary transactions in property derived from specific unlawful
activity, if the amount of the funds exceeds $10,000. Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001)
[reversing deportability where the amount of funds was one check for $1,310 even though restitution was
ordered in the amount of $967,753, because the statute relates to the amount of funds involved in the
transaction, not the loss to the victim]. But see Varughese v. Holder, 629 F.3d 272 (2d Cir. 2010) [conviction
under 18 USC §1956(a)(3)(B) is an aggravated felony under the circumstance specific approach in Nijhawan
even if statute does not use the word “funds,” and no amount in excess of $10,000 was stated in his
indictment]; Hakim v. Holder, 628 F.3d 151, 153-54 (5th Cir. 2010) [government does not need to show that
all of the $10,000 was gained through unlawful activity].
5. Explosives, Firearms, Arson [INA §101(a)(43)(E)]
5.a. Offenses described in 18 USC §842(h), relating to transportation or receipt of stolen explosives, and 18
USC §842(i), barring certain categories of persons such as drug users and addicts and those under
indictment for transporting or receiving any explosive.
5.b. Offenses described in 18 USC §844(d)–(i), including: transporting or receiving explosives to injure
persons or destroy property [§844(d)]; using telephone or mail to threaten injury to persons or property
[§844(e)]; using fire and explosives to damage or destroy or attempt to damage and destroy property of
U.S. or any institution receiving federal financial assistance [§844(f)]; possessing explosives at an airport
under certain circumstances [§844(g)]; using fire (arson) or an explosive to commit any felony or causing
an explosion during the commission of any felony [§844(h)] damaging or destroying property or attempting
to do so by fire (arson) or explosives [§844(i)]. In Luna Torres v. Lynch, 578 U.S. __, 136 S.Ct. 1619
(2016), the Supreme Court determined that the “described in” language in INA §101(a)(43)(E) does not
require that a state statute, Page 294 in this case attempted arson in the third degree under N.Y. Penal
Law §§110 and 150.10, replicate the interstate commerce element contained only in the federal statute to
be an aggravated felony for two reasons. First, the penultimate sentence of INA §101(a)(43)
demonstrates that Congress intended to capture all serious crimes whether “prohibited by federal, state,
or foreign law.” Second, the Court relied on the “well-established background principle distinguishing
between substantive and jurisdictional elements in federal criminal statutes.” See also Matter of Bautista,
25 I&N Dec. 616 (BIA 2011) [attempted arson in the third degree in violation of N.Y. Penal Law §§110 and
150.10 is a crime “described in” §844(i) notwithstanding the requirement of the federal statute that the
property had to be used in interstate or foreign commerce because the term “aggravated felony” applies to
an offense in violation of federal or state law]; Espinal-Andrades v. Holder, 777 F.3d 163 (4th Cir. 2015)
[Maryland’s arson-in-the-first degree statute is an aggravated felony both because it is an offense
“described in” 18 USC §844(i) and INA §101(a)(43) provides for convictions “whether in violation of
Federal or State law” which seldom if ever contain an interstate element]; Sandoval-Gomez v. Holder, 768
F.3d 904, 910-18 (9th Cir. 2014) [Cal. Penal Code §455 is an aggravated felony under §844(i) because
the statute is divisible and the jurisdictional element of interstate commerce for 844(i) must be
disregarded].
5.c. Offenses described in 18 USC §922(g)(1)–(5), (j), (n), (o), (p), or (r), barring certain categories of
persons, including persons illegally or unlawfully in the U.S. from possessing or receiving any firearms or
ammunition [18 USC §922(g)], Matter of Oppedisano, 26 I&N Dec. 202 (BIA 2013), aff’d, Oppedisano v.
Holder, 769 F.3d 147 (2d Cir. 2014) [unlawful possession of ammunition by a convicted felon is an
aggravated felony because the language in INA §101(a)(43)(E)(ii) is descriptive and not limiting as it uses
the phrase “relating to” firearms offenses]; Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002) [Cal.
Penal Code §12021(a)(1) is an aggravated felony under INA §101(a)(43)(E)(ii) because it is an offense
“described in” §922(g)(1)]; Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. 2007) [conviction under §922(g)
(3) was an aggravated felony even though weapons were used solely for lawful sporting purposes]; U.S.
v. Mendoza-Reyes, 331 F.3d 1119 (9th Cir. 2003) [Wash. Rev. Code §9.41.040(1), possession of a firearm
by person who has been convicted of a serious crime is a categorical match to §922(g)(1)]; receiving,
storing or selling stolen firearms or ammunition [§922(j)]; shipping or transporting firearms or ammunition
if under indictment [§922(n)]; transferring or possessing a machine gun under certain circumstances
[§922(o)] possessing, selling, or manufacturing parts of firearms that could go through airport and other
metal detectors undetected [§922(p)]; assembling semiautomatic rifles or shotguns from foreign parts
when the rifle or shotgun is prohibited from importation [§922(r)]. Nieto Hernandez v. Holder, 592 F.3d 681
(5th Cir. 2009) [upheld interpretation in Vasquez-Muniz on Chevron grounds for conviction under Tex.
Penal Code §46.04(a) without an interstate commerce element]; U.S. v. Castillo-Rivera, 244 F.3d 1020,
1025 (9th Cir. 2001) [Cal. Penal Code §12021(a)(1)]. But see Rodriguez-Contreras v. Sessions, 873 F.3d
579 (7th Cir. 2017) [conviction under Illinois statute 720 ILCS 5/224-1.1(a) is not an aggravated felony
under 922(g)(1) because the elements of the state crime are broader than the federal crime]; U.S. v.
Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) [possession of a firearm by noncitizen under Wash. state
law is not an aggravated felony]. For additional information see in this chapter “Aliens in Possession of a
Firearm,” Section VIII.EE (p.412), infra.
5.d. Offenses under 18 USC §924(b) and (h) relating to: transporting or receiving firearms or ammunition
with intent to commit an offense punishable by imprisonment of more than one year [18 USC §924(b)];
transferring a firearm knowing that it will be used to commit a crime of violence (i.e., crime where element
is use of force or substantial risk of force) or drug trafficking [18 USC §924(h)].
5.e. Offenses under 26 USC §5861 relating to receipt, manufacture or possession of firearms without proper
licenses or taxes.
6. Crimes of Violence (COVs) [INA §101(a)(43)(F)]
An aggravated felony under INA §101(a)(43) includes any COV as defined in 18 USC §16 (not including a
purely political offense) for which the term of imprisonment imposed (regardless of any suspension) is at least
one year. Section 16 defines a COV as: §16(a) “any offense that has as an Page 295 element the use or
attempted use or threatened use of physical force against the person or property of another,” or §16(b) “any
other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.” However, §16(b) has
been found to be unconstitutional as void-for-vagueness and therefore any analysis relying on 16(b) to find a
COV is invalid. Sessions v. Dimaya, 584 U.S. ___, 138 S.Ct. 1204 (2018) [struck down the “ordinary case”
approach and §16b as void-for-vagueness in determining that Cal. Penal Code §459 first degree burglary
was not a crime-of-violence aggravated felony].
The “term of imprisonment” is ambiguous but may involve an interpretation of state criminal law for which
Chevron deference is inapplicable. Chavez-Alvarez v. U.S. Att’y Gen., 783 F.3d 478 (3d Cir. 2015) [reversed
the Board because the sentencing procedure used in imposing an 18-month general sentence in the military
for both aggravated and non–aggravated felonies did not apportion the sentence among the crimes and
therefore could not be attributed to the aggravated felony for purposes of a one year sentence]; Shaya v.
Holder, 586 F.3d 401, 406–08 (6th Cir. 2009) [reversed finding that respondent convicted of assault under
Michigan law and given an indeterminate sentence was an aggravated felon because Michigan law
measures an indeterminate sentence as the longer of the minimum sentence or time actually served and not
the “maximum” sentence as interpreted by the BIA]. See also Cole v. U.S. Att’y Gen., 712 F.3d 517, 530-32
(11th Cir. 2013) [not taking a position on Chevron but finding an indeterminate term of imprisonment under
SC Youthful Offenders Act to be the equivalent of the maximum sentence as interpreted by the courts of SC].
For a more thorough discussion of “term of imprisonment,” see in this part ¶ I.10 (p.342), infra.
The BIA’s definition of COV includes any offense where either: (a) the elements of the offense must be such
that the use, attempted use, or threatened use of physical force is an element, or (b) the nature of the crime
—as evidenced by the generic elements of the offense—must be such that its commission ordinarily would
present a risk that physical force would be used against the person or property of another irrespective of
whether the risk develops or harm actually occurs. Matter of Sweetser, 22 I&N Dec. 709, 716 (BIA 1999)
[criminal negligent child abuse does not by its nature involve substantial risk of physical force; distinguishing
sentencing guideline cases because they address risk of physical injury not risk of physical force]; Matter of
Ramon Martinez, 25 I&N Dec. 571 (BIA 2011) [assault with intent to commit a felony under Cal. Penal Code
§220 is categorically a COV under both sections 16(a) and 16(b) because the accused must intend to
accomplish the offense against the will of the victim and the crime does not contemplate a consensual act];
Matter of Palacios, 22 I&N Dec. 434 (BIA 1998) [1st degree arson under Alaska law involves substantial risk];
Matter of Ramos, 23 I&N Dec. 336, 342–46 (BIA 2002) [language in 18 USC §16(b) regarding “may be
used,” “against,” and “in the course of committing the offense” requires a volitional, not a negligent act,
therefore an individual must act with at least recklessness or “recklessness plus”]. It may also include
solicitation of a crime of violence. Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) [solicitation under R.I.
Gen. Laws §11-1-9 to commit assault with a dangerous weapon is, under the modified categorical approach,
a COV under section §16(b)].
However, the Supreme Court has suggested that a crime of violence under 16(a) must require “violent force”
and a simple touching is insufficient. Johnson v. U.S., 559 U.S. 133 (2010) [simple battery under Fla. Stat.
§784.03(1)(a), (2) by “actually and intentionally touching” another person does not have as an element the
use of physical force under 18 USC §924(e)(2)(B)(i), which the court noted was very similar to 18 USC §16,
and thus cannot be characterized as a violent felony]; U.S. v. Castleman, 572U.S. __, 134 S.Ct. 1405, n.4
(2014) [finding that “domestic violence” may generally include less than violent force but holding that in the
immigration context where domestic violence is defined in reference to 18 USC §16 that violent force would
be required]; Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) [following Johnson and finding that
under 16(a) a COV must categorically include “violent force”; withdrawing from Matter of Martin]; Matter of
Velasquez, 25 I&N Dec. 278 (BIA 2010) [following Johnson and holding that a misdemeanor assault and
battery against a family or household member under Va. Code Ann. §18.2-57.2(A) is not categorically a crime
of violence because it does not require violent force and therefore is not a domestic violence crime under INA
§237(a)(2)(E)(i)]. Cf. U.S. v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012) [following Johnson but finding
that resisting arrest by offering or doing violence under Fla. Stat. §843.01 requires violent force and as a
general intent crime requires sufficient mens rea]. But see U.S. v. Deshazior, 882 F.3d 1382 (11th Cir. 2018)
[aggravated assault under Fla. Stat. §784.021, Page 296 resisting an officer with violence under Fla. Stat.
§843.01, and sexual battery, under the modified categorical approach in Fla. Stat. §794.011 are all COVs
under ACCA]; U.S. v. Joyner, 882 F.3d 1369 (11th Cir. 2018) [resisting an officer with violence under Fla.
Stat. §843.01 and attempted strong armed robbery under Fla. Stat. §§812.13(a), (2)(c) & 774.04 are COVs];
U.S. v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc) [holding Florida felony battery qualifies as a
COV]; U.S. v. Dixon, 874 F.3d 678 (11th Cir. 2017) [domestic battery by strangulation under Fla. Stat.
§784.041(2)(a) is categorically a COV under USSG §2K2.1]. The BIA has noted there is a split in the circuits
on how to treat the use of force through indirect means such as poisoning, and on motion for reconsideration
they clarified Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016) to state their decision “should not be
read as attempting to establish a nationwide rule addressing the scope of the use of force through indirect
means, including poisoning.” 26 I&N Dec. at 808.
Also an offense will not be a COV if conviction does not require a mens rea or if a person may be convicted
simply on a showing of negligence or less than intentional conduct. Leocal v. Ashcroft, 543 U.S. 1 (2004)
[DUI causing serious bodily injury under Florida law was not a COV because the “use … of physical force”
under 18 USC §16(a) or the “substantial risk that physical force … may be used” under 16(b) are given an
“identical construction requiring a higher mens rea than the merely accidental or negligent conduct involved
in a DUI offense”]. In Leocal, 543 U.S. 1, 13 (2004), the Court expressly declined to decide whether more
than negligent conduct, such as reckless conduct, would constitute an aggravated felony under 18 USC §16.
See also, U.S. v. Castleman, 572 U.S. __ , 134 S.Ct. 1405 n.8 (2014) [“Although Leocal reserved the
question whether a reckless application of force could constitute a ‘use’ of force, the Courts of Appeals have
almost uniformly held that recklessness is not sufficient”]; Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305-07
(9th Cir. 2015) [Cal. Penal Code §192(a) for voluntary manslaughter is not categorically a COV because a
person may be convicted for mere recklessness]; but see Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA
2018) [attempted voluntary manslaughter in violation of Cal. Penal Code §§192(a), 664 is a COV because it
requires specific intent to cause the death of another]. See also Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir.
2012) [resisting executive officer under Cal. Penal Code §69 is not categorically a crime of violence under
16(a) or 16(b) as no case has stated it is a specific intent crime and because the “actually resisting” prong is
a general intent crime the defendant may have only intentionally used de minimis force]; U.S. v. Romo-
Villalobos, 674 F.3d 1246, 1250-51 (11th Cir. 2012) [resisting arrest by offering or doing violence under Fla.
Stat. §843.01 as a general intent crime requires sufficient mens rea]; Covarrubias Teposte v. Holder, 632 F.3d
1049 (9th Cir. 2011) [shooting at inhabited dwelling or vehicle under Cal. Penal Code §246 is not
categorically a crime of violence because it allows for reckless and grossly negligent conduct]; U.S. v.
Palomino Garcia, 606 F.3d 1317, 1334-37 (11th Cir. 2010) [post-Leocal court held that Ariz. Stat. §13-
1204(A)(7) for aggravated assault was not a crime of violence because recklessness is an insufficient mens
rea for a COV]; Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008) [3rd degree criminal
recklessness, Ind. Code §35-42-2-2(b)(1), cannot be a COV following Leocal]; U.S. v. Narvaez-Gomez, 489
F.3d 970, 975–77 (9th Cir. 2007) [following Fernandez-Ruiz, Cal. Penal Code §246, maliciously and willfully
discharging a firearm at an inhabited dwelling was not categorically a COV because purely reckless conduct
is sufficient for a conviction]; Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc)
[misdemeanor domestic violence assault, Ariz. Rev. Stat. §§13-1203 and 13-3601, permits conviction for
recklessness, gross negligence, and simple negligence and therefore cannot be a COV post-Leocal]; Malta-
Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) [reversing Matter of Malta, 23 I&N Dec. 656 (BIA
2004) and finding that stalking, Cal. Penal Code §646.9(b), where it involved reckless conduct, was not a
COV]; Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006) [2nd degree reckless assault, N.Y. Penal Law
§120.05(4) is not a COV]; Singh v. Gonzales, 432 F.3d 533 (3d Cir. 2006) [recklessly endangering another
person under Penn. Law is not a COV]; Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005) [reckless vehicular
manslaughter is not a COV]; Popal v. Gonzales, 416 F.3d 249, 253–55 (3d Cir. 2005) [misdemeanor simple
assault, 18 Pa. Cons. Stat. §2701(a)(1), is not a COV because it does not require a mens rea greater than
recklessness]; Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005) [conspiracy to commit reckless burning or
exploding, 18 Pa. Cons. Stat. §3301(d)(2), is not a COV]; Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th
Cir. 2005) [involuntary manslaughter is not a COV]; Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005)
[gross vehicular manslaughter while intoxicated, Cal. Penal Code §191.5(a) is not a COV because it requires
gross negligence and does not require active Page 297 employment of force/intentional conduct necessary
for a COV]; U.S. v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) [Texas intoxicated assault under Tex. Penal
Code §49.07 is not a COV under sentencing guideline because intentional use of force is not a necessary
component of the offense]; U.S. v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) [Texas DWI offense is not a
COV under second prong of federal definition because it does not require intentional or close to intentional
conduct]; Jobson v. Ashcroft, 326 F.3d 367, 373–74 (2d Cir. 2003) [manslaughter under N.Y. Penal Law
§125.15(1) does not require the intentional use of force and is not a COV]; Bazan-Reyes v. INS, 256 F.3d
600, 605–12 (7th Cir. 2001) [homicide by intoxicated use of vehicle is not a COV]. But see Dixon v. U.S. Att’y
Gen., 768 F.3d 1339, 1342-46 (11th Cir. 2014) [aggravated fleeing under Fla. Stat. §316.1935(4)(a) despite
similarity to Leocal is a COV agg. felony under 16(b) because it indicates individual fleeing is desperate and
more likely to resort to physical force]; Bolanos v. Holder, 734 F.3d 875, 877-78 (9th Cir. 2013) [finding that
although in theory a person could recklessly or negligently draw or exhibit a firearm in a threatening manner
against another person in violation of Cal. Penal Code §417.3 it is much less natural to read it that way
“because threatening is inconsistent with conduct that is merely reckless or negligent”]; Aguilar v. U.S. Att’y
Gen., 663 F.3d 692, 696-700 (3d Cir. 2011) [sexual assault under 18 Pa. Cons. Stat. §3124.1 is a COV
because a crime with a mens rea of recklessness can qualify for a COV under 16(b)]; Blake v. Gonzales, 481
F.3d 152 (2d Cir. 2007) [Mass. Gen. Laws Ch. 265 §13D, aggravated assault on a police officer is a COV
under §16(b) despite the inclusion of wanton or reckless conduct because such conduct must require
violence and injury to obtain a conviction]; Matter of Kim, 26 I&N Dec. 912 (BIA 2017) [Cal. Penal Code §203
is a COV under 16(a) because it “necessarily involves” a malicious act which impliedly is more than
recklessness and it results in great bodily injury, even if indirectly in the absence of direct use of force]; Matter
of Singh, 25 I&N Dec. 670 (BIA 2012) [reaffirming Matter of Malta, 23 I&N Dec. 656 (BIA 2004)for all other
circuits notwithstanding its reversal in the Ninth Circuit and finding that Cal. Penal Code §646.9(b) regarding
stalking for harassing conduct is a COV under §16(b) because it requires intentional conduct]; Matter of
Alcantar, 20 I&N Dec. 801 (BIA 1994) [pre-Leocal involuntary manslaughter considered an aggravated
felony].
A COV under 18 USC §16(a) must also include a determination that the use of force is an “element” of the
crime. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) [aggravated battery in the 3rd degree under
P.R. Laws Ann. tit. 33 §4750 (Penal Code Art. 122) is not a COV because a conviction does not require the
use of violent force]; Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) [Kansas aggravated battery
offense that can be violated by physical contact that does not constitute physical force is not necessarily a
COV]; Szucz-Toldy v. Gonzales, 400 F.3d 978 (7th Cir. 2005) [Illinois harassment by telephone is not a COV
under §16(a) because the offense does not require the use, attempted use, or threatened use of physical
force]; Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. 2004) [harassment under Or. Rev. Stat. §166.065(1)(a)(A) is
not a COV because it includes offensive touching that is not aimed at creating physical injury and therefore
does not have as an element the use of force]; Chrzanoski v. Ashcroft, 327 F.3d 188, 194–98 (2d Cir. 2003)
[rejecting the government’s argument that the use of force was an “implicit” element of Conn. assault statute
requiring intent to cause injury and causation of injury]. The BIA has held that a sentencing factor may be the
“functional equivalent” of an element under section 16(a) where it requires proof beyond a reasonable doubt.
Matter of Chavez-Alvarez, 26 I&N Dec. 274, 279-81 (BIA 2014), rev’d Chavez-Alvarez v. U.S. Att’y Gen., 850
F.3d 583 (3d Cir. 2017) [sentence aggravator under Manual for Court-Martial for using force in committing
sodomy offense cannot count as the functional equivalent of an “element” of the offense because only
Congress can create crimes and the Manual determines punishment not the elements of a crime]. Physical
force, as an element of the crime, may occur “indirectly” as well as directly. U.S. v. Deshazior, 882 F.3d 1382
(11th Cir. 2018) [sexual battery, under the modified categorical approach in Fla. Stat. §794.011 is a COV
under ACCA where a “deadly weapon” is required and that can be indirect through poisoning, sloshing
bleach in a victim’s face, or saying the word “sic” to a dog as all involve force capable of causing physical
pain or injury].
A COV under §16(b) must also include a “risk that physical force … may be used,” not a “risk of physical
injury” as defined under the Sentencing Guidelines §4B1.2(a)(1)(ii). The courts previously distinguish
between a risk of injury and a risk of the use of force in determining whether a conviction could be an
aggravated felony. Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004) [distinguishing between risk of injury and risk
of the use of force to determine that DUI causing serious bodily harm is not a COV]. But the Supreme Court
in Sessions v. Dimaya, 584 U.S. ___, 138 S.Ct. 1204 (2018) found Page 298 the distinction between risk of
injury and risk of the use of force inconsequential and determined that §16(b) was unconstitutionally vague
after previously determining that a similar Armed Career Criminal Act provision was unconstitutional under
the void-for-vagueness doctrine. In Johnson v. U.S., 576 U.S. __ , 135 S.Ct. 2551 (2015) the Court address
the residual clause of the definition of violent felony under the Armed Career Criminal Act, 18 USC §924(e)(2)
(B)(ii), and found it unconstitutional. The provision, similar to 16(b), allowed enhanced sentences for a crime
that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Johnson
v. U.S., 576 U.S. __, 135 S.Ct. 2551, 2557-58 (2015) [the residual clause, the Court ruled, is void for
vagueness because it “leaves grave uncertainty about how to estimate the risk posed by a crime” as it ties
risk to imagined ordinary cases not to real-world facts or statutory elements and because it “leaves
uncertainty about how much risk it takes for a crime to qualify as a violent felony”]. In Welch v. U.S., 578 U.S.
__, 136 S.Ct. 1257 (2016) the Court determined that Johnson applies retroactively in cases seeking collateral
review. In Sessions v. Dimaya, 584 U.S. __, 138 S.Ct. 1204 (2018) the Supreme Court struck down the
“ordinary case” approach and §16b as void-for-vagueness in determining that Cal. Penal Code §459 [first
degree burglary] was not a crime-of-violence aggravated felony. Finding that “Johnson is a straightforward
decision, with equally straightforward application here” Dimaya, 138 S.Ct. at 1213, the Court concluded that
§16(b) “has the same ‘[t]wo features’ [ordinary case requirement and ill-defined risk] that ‘conspire[d] to make
[ACCA’s residual clause] unconstitutionally vague.’ ” Dimaya, 138 S.Ct. at 1216. These decisions render such
Board and court decisions as Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) [Fla. Stat. §784.041(1)
is an aggravated felony under 16(b) because in the “ordinary case” the risk of force exists even if it is not
always a realistic probability or the least culpable conduct necessary to commit the crime] and U.S. v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc) [Sentencing Guidelines 2L1.2(b)(1)(C) relying on
18 USC §16(b) is not void-for-vagueness] invalid.
The lower courts and the Board have, prior to Dimaya, also found §16b unconstitutional or inapplicable.
Mateo v. U.S. Att’y Gen., 870 F.3d 228 (3d Cir. 2017) [conspiracy to commit robbery of a motor vehicle under
18 Pa. Cons. Stat §3702 is not a COV because the vagueness doctrine applies in immigration proceedings to
challenge a COV and 16(b) is unconstitutionally vague]; Baptiste v. U.S. Att’y Gen., 841 F.3d 601, 607-21 (3d
Cir. 2016) [conviction for reckless second degree aggravated assault under N.J. Stat. Ann. §2A:90-1 is a
COV under §16(b) but that section is void for vagueness following Johnson when applied in a removal
proceeding]; U.S. v. Hernandez-Lara, 817 F.3d 651 (9th Cir. 2016) [following Dimaya, the court held that
§16(b) as incorporated in USSG §2L1.2(b)(1)(C) is void for vagueness]; Shuti v. Lynch, 828 F.3d 440 (6th Cir.
2016); [in the context of unarmed robbery under Mich. Comp. Laws §750.530 INA’s definition of crime of
violence under INA §101(a)(43)(F) is void for vagueness because of its reliance on §16(b)]; U.S. v. Vivas-
Ceja, 808 F.3d 719 (7th Cir. 2015) [finding §16b void-for-vagueness in illegal reentry context]. Zivkovic v.
Holder, 724 F.3d 894, 903-06 (7th Cir. 2013) [distinguishing Sentencing Guidelines and ACCA and finding
that residential trespass under Illinois statute 720 ILCS 5/19-4(a)(2) did not create a substantial risk of injury
under 16(b)]; Rodriguez v. Holder, 705 F.3d 207 (5th Cir. 2013) [following Leocal a conviction under Tex.
Penal Code §22.011(a)(1) for sexual assault is not a COV under 16(b)]; Jobson v. Ashcroft, 326 F.3d 367,
373 (2d Cir. 2003) [NY involuntary manslaughter which may have resulted in death was not a COV because
it is the risk of the use of force and not the risk of injury that is at issue and the statute covered unintentional
accidents caused by recklessness]; Matter of Tavarez Peralta, 26 I&N Dec. 171, 177-78 (BIA 2013) [following
Leocal and finding that a conviction under 18 USC §32(a)(5) where a defendant targeted a laser beam at a
police helicopter pilot was not a COV under 16(b) because the test is not the risk of harm but the risk that
physical force may be used]; Matter of Sweetser, 22 I&N Dec. 709, 716 (BIA 1999) [criminal negligent child
abuse does not by its nature involve substantial risk of physical force; distinguishing sentencing guideline
cases because they address risk of physical injury not risk of physical force].
The BIA looks only to whether the generic nature of the offense is an aggravated felony. Matter of Ramos, 23
I&N Dec. 336, 339 (BIA 2002); Matter of Palacios, supra at 436. In making that determination, a federal
standard must be applied and a conviction under a state statute cannot be presumed to be an equivalent
federal crime for purposes of the aggravated felony statute. Matter of Palacios, supra at 438–57 (Rosenberg
dissenting) [citing Taylor v. U.S., 495 U.S. 575, 579–82 (1990) and defining COV under federal law]; Szucz-
Toldy v. Gonzales, 400 F.3d 978, 981 (7th Cir. 2005) [court looks solely to the elements of the offense to
determine whether it is a COV and would only look beyond statute to person’s record where a statute is
divisible]. But see Xiong v. INS, 173 F.3d 601, 605 (7th Cir. 1999) Page 299 [court may look beyond the
record to the criminal complaint where it is not possible to determine the proper classification of the offense
and where a hearing is not required to resolve contested factual issues].
When the conviction is under a statute that is divisible, it is necessary to look to the record of conviction (not
the facts) ) to identify the offense of conviction: The Supreme Court in Shepard v. U.S., 544 U.S. 13 (2005),
“listed the types of documents we may consider in applying the modified categorical approach: ‘the statutory
definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.’ ” U.S. v. Snellenberger, 548 F.3d 699 (9th Cir.
2008) (quoting Shepard, 544 U.S. at 16). See in this part “Categorical and Modified Categorical Approach,” ¶
I.9 (p.324), infra.
6.a. Cases finding “Crime of Violence” under 18 USC §16 and ACCA:
Arson (First Degree), Matter of Palacios, 22 I&N Dec. 434 (BIA 1998) [Alaska]; Mbea v. Gonzales, 482
F.3d 276, 279–80 (4th Cir. 2007) [malicious burning of property, D.C. Code §22-401]; Arson (Second
Degree), Santana v. Holder, 714 F.3d 140 (2d Cir. 2013) [attempted arson in the second degree under
NYPL §150.15 is a COV under 16(b)]. Assault (Aggravated) U.S. v. Deshazior, 882 F.3d 1382 (11th Cir.
2018) [aggravated assault under Fla. Stat. §784.021 is a COV under ACCA]; U.S. v. Cabrera-Perez, 751
F.3d 1000 (9th Cir. 2014) [aggravated assault under Ariz. Rev. Stat. §§13-1203(A)(2), 13-1204(A)(2)
under 16(a)]; Assault (Simple) Singh v. Gonzales, 432 F.3d 533, 538–40 (3d Cir. 2006) [simple assault,
18 Pa. Cons. Stat. Ann. §2701(a)(3), unlike §2701(a)(1)]. Assault (Second Degree), Morris v. Holder,
676 F.3d 309, 314-16 (2d Cir. 2012) [N.Y. Penal Law §120.05(2) assault in the second degree is a COV
under §16(b) because it sweeps more broadly than §16(a)]; U.S. v. Hermoso-Garcia, 413 F.3d 1085, 1089
(9th Cir. 2005) [Wash. Rev. Code §9A.36.021(1)(a) requires reckless infliction of substantial bodily harm].
Assault (Third Degree), Matter of Martin, 23 I&N Dec. 491 (BIA 2002) [Conn. Gen. Stat. §53a-61], but
see Flores v. Ashcroft, 350 F.3d 666, 671 (7th Cir. 2003) [finding Martin not persuasive because it
confuses intent to injure with any injury that occurs]; ]; Roberts v. Holder, 745 F.3d 928, 929-31 (8th Cir.
2014) [aiding and abetting violation of Minn. Stat. §606.223 sub.1]; Chrzanoski v. Ashcroft, 327 F.3d 188
(2d Cir. 2003). Assault of Public Safety Personnel, Canada v. Gonzales, 448 F.3d 560 (2d Cir. 2006)
[assault on police officer with intent to prevent him from performing his duty, Conn. Gen. Stat. §53a-
167c(a)(1)]. Assault and Battery, Mondragón v. Holder, 706 F.3d 535 (4th Cir. 2013) [Va. Code Ann.
§18.2-11 under modified categorical approach]; Ramirez v. Mukasey, 520 F.3d 47 (1st Cir. 2008) [indecent
assault and battery, Mass. Gen. Laws ch. 265 §13H]; Lopes v. Keisler, 505 F.3d 58, 61–63 (1st Cir. 2007)
[simple assault and battery, R.I. Gen. Laws §11-5-3]; U.S. v. Earle, 488 F.3d 537, 547–48 (1st Cir. 2007)
[assault and battery, Mass. Gen. Laws ch. 265 §15A]. Assault and Battery on a Police Officer, Blake v.
Gonzales, 481 F.3d 152 (2d Cir. 2007) [Mass. Gen. Laws ch. 265 §13D]. Assault with a Deadly
Weapon, Camacho-Cruz v. Holder, 621 F.3d 941 (9th Cir. 2010) [assault with a deadly weapon under
Nev. Rev. Stat. §200.471]; Ortiz-Magana v. Mukasey, 542 F.3d 653 (9th Cir. 2008) [aiding and abetting
assault with a deadly weapon, Cal. Penal Code §245(a)(1)]. Assault with a Firearm, U.S. v. Heron-
Salinas, 566 F.3d 898 (9th Cir. 2009) [Cal. Penal Code §245(a)(2)]. Assault with Intent to Commit a
Felony, Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011) [Cal. Penal Code §220 is a categorically
a COV under both sections 16(a) and 16(b)]. Battery (Simple), Hernandez v. U.S. Att’y Gen., 513 F.3d
1336 (11th Cir. 2008) [Ga. Code Ann. §16-5-23(a)(2)]; U.S. v. Glover, 431 F.3d 744 (11th Cir. 2005)
[simple battery on a law enforcement officer]. But see Johnson v. U.S., 559 U.S. 133 (2010) [simple
battery under Fla. Stat. §784.03(1)(a), (2) by “actually and intentionally touching” another person does not
have as an element the use of physical force under 18 USC §924(e)(2)(B)(i), which the court noted was
very similar to 18 USC §16, and thus cannot be characterized as a violent felony]. Battery (Felony),
Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) [Fla. Stat. §784.041(1) is an aggravated felony
under 16(b) using the “ordinary case” approach rather than the lease culpable conduct]; U.S. v. Vail-
Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc) [holding Florida felony battery under Fla. Stat. §784.041
qualifies as a COV]; Battery (Aggravated), Khodja v. Holder, 666 F.3d 415, 410-22 (7th Cir. 2011)
[aggravated battery under Illinois statute 720 Ill. Comp. Stat. 5/12-3.05(a)(1) is a COV under 16(b)]; U.S.
v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. 2007) [aggravated battery on a pregnant woman was COV
for purposes of sentence enhancement]; U.S. v. Dominguez, 479 F.3d 345 (5th Cir. 2007) [in sentencing
case, Fla. Stat. §784.045(1)(a)(1998)]. Battery Against a Spouse, Matter of Milian, 25 I&N Dec. 197 (BIA
2010) Page 300 [Cal. Penal Code §§242 and 243(e)(1) are divisible as to COV]; but see Matter of
Sanudo, 23 I&N Dec. 968, 974–75 (BIA 2006) [Cal. Penal Code §§242 and 243(e)(1) are not COV under
modified categorical approach]. Burglary of a Dwelling, U.S. v. Reina-Rodriguez, 468 F.3d1147 (9th Cir.
2006) [Utah Code Ann. §76-6-203, is a COV because it requires entry into a building under Taylor];
Burglary of a Habitation, U.S. v. Guadardo, 40 F.3d 102, 103–04 (5th Cir. 1994). Burglary of a
Nonresidential Structure or Vehicle, Escudero-Arciniega v. Holder, 702 F.3d 781 (5th Cir. 2012)
[burglary of a vehicle under N.M. Stat. Ann. §30-16-3(B)]; U.S. v. Ramos-Garcia, 95 F.3d 369, 371 (5th
Cir. 1996).; Carjacking (under federal law), U.S. v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017) [federal
offense of carjacking, 18 USC §924(c) is a COV]. Child Abuse, U.S. v. Lopez-Patino, 391 F.3d 1034,
1036–38 (9th Cir. 2004) [Ariz. Rev. Stat. §13-2623(C) is not per se COV, but under modified approach
defendant admitted a COV in the plea]. Child, Lewd Acts Upon, U.S. v. Ortiz-Delgado, 451 F.3d 752,
753–57 (11th Cir. 2006) [Cal. Penal Code §288 in sentencing context]. Child, Risk of Injury, Perez-
Munoz v. Keisler, 507 F.3d 357 (5th Cir. 2007) [Tex. Penal Code Ann. §22.04 under modified categorical
approach]; Hongsathirath v. Ashcroft, 322 F.Supp.2d 203 (D. Conn. 2004) [Conn. Gen. Stat. §53-21(a)(2)].
Criminal Contempt,Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) [first degree, N.Y. Penal Law
§215.51(b)(i)]. Domestic Abuse, Andrade v. Gonzales, 459 F.3d 538, 544 (5th Cir. 2006) [violation of a
domestic abuse protective order under Mass. Law]. Domestic Battery by Strangulation, U.S. v. Dixon,
874 F.3d 678 (11th Cir. 2017) [domestic battery by strangulation under Fla. Stat. §784.041(2)(a) is
categorically a COV under USSG §2K2.1]. Domestic Violence, De Leon Castellanos v. Holder, 652 F.3d
762 (7th Cir. 2011) [Domestic battery under 720 Ill. Comp. Stat. 5/12-3.2(a)(1) for intentionally causing
bodily harm to a family member]; LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. 2008) [720 Ill. Comp. Stat.
5/12-3.2(a)(1)]. Evading Arrest, U.S. v. Vargas-Soto, 700 F.3d 180, 183-85 (5th Cir. 2012) [evading arrest
by use of an automobile under Tex. Penal Code Ann. §38.04(b)(1) is a COV under 16(b)]; Firearm,
Aggravated Discharge of, Quezada-Luna v. Gonzales, 439 F.3d 403 (7th Cir. 2006) [720 Ill. Comp. Stat.
5/24-1.2]. Firearm, Threatening Manner, Bolanos v. Holder, 734 F.3d 875 (9th Cir. 2013) [Cal. Penal
Code §417.3 for drawing or exhibiting any firearm in a threatening manner against another person who is
an occupant of a motor vehicle is a COV under section 16(a)]; Fleeing (Aggravated), Dixon v. U.S. Att’y
Gen., 768 F.3d 1339, 1342-46 (11th Cir. 2014) [aggravated fleeing under Fla. Stat. 316.1935 (4)(a)
despite similarity to Leocal is a COV agg. felony under 16(b) because it indicates individual fleeing is
desperate and more likely to resort to physical force]; Imprisonment (False), Barragan-Lopez v. Holder,
705 F.3d 1112 (9th Cir. 2013) [false imprisonment under Cal. Penal Code §210.5 which involves
imprisonment of a person as a shield or to evade arrest is a COV under 16(b)]; Imprisonment
(Unlawful), Dickson v. Ashcroft, 346 F.3d 44, 48–55 (2d Cir. 2003) [first degree unlawful imprisonment of
an adult, N.Y. Penal Law §135.10]. Indecent Assault and Battery, Sutherland v. Reno, 228 F.3d 171 (2d
Cir. 2000) [Mass. Gen. Laws ch. 265 §13H, nonconsent is a necessary element]; U.S. v. Lepore, 304
F.Supp.2d 183, 186–89 (D. Mass. 2004) [same]. Indecency with a Child, U.S. v. Velazquez-Overa, 100
F.3d 418, 419 (5th Cir. 1996) [sentencing case]. Injury (Risk of) to a Minor, Santapaola v. Ashcroft,249
F.Supp.2d 181, 189–99 (D. Conn. 2003) [relying on plea transcript, Conn. Gen. Stat. §53-21 for injury to a
minor]. Use of Interstate Commerce Facility in the Commission of a Murder-for-Hire, Ng v. U.S. Att’y
Gen., 436 F.3d 392 (3d Cir. 2006) [18 USC §1958]. Kidnapping, Delgado-Hernandez v. Holder, 697 F.3d
1125 (9th Cir. 2012) [attempted kidnapping under Cal. Penal Code §207(a) is a COV under 16(b) but not
16(a)]; Choeum v. INS, 129 F.3d 29, 35 n.4 (1st Cir. 1997). Lewd and Lascivious Acts, Rodriguez-
Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) [lewd and lascivious acts upon a 14- or 15-year-old
under Cal. Penal Code §288(c)(1) is categorically a COV under 16(b)]. Lewd Assault under Florida law
(attempt), Ramsey v. INS, 55 F.3d 580 (11th Cir. 1995). Manslaughter (First Degree), Matter of Vargas,
23 I&N Dec. 651 (BIA 2004), aff’d, 448 F.3d 159 (2d Cir. 2006) [N.Y. Penal Law §125.20 finding statute
divisible but determining respondent engaged in a COV]; Benjamin v. Bureau of Customs, 383 F.Supp.2d
344 (D. Conn. 2005) [Conn. Gen. Stat. §53a-55(a)(1)].Mayhem, Ruiz-Morales v. Ashcroft, 361 F.3d 1219
(9th Cir. 2004) [Cal. Penal Code §203]; Matter of Kim, 26 I&N Dec. 912 (BIA 2017) [Cal. Penal Code §203
“necessarily involves” a malicious act resulting in great bodily injury, even if indirectly, to another and
therefore is categorically a COV under 16(a)]; Menacing Damaso-Mendoza v. Holder, 653 F.3d 1245
(10th Cir. 2011) [menacing under Colo. Rev. Stat. §18-3-206]; U.S. v. Drummond, 240 F.3d 1333, 1335
(11th Cir. 2001) [NY law]. Rape, U.S. v. Ruiz-Apolonio, 657 F.3d 907, 911-16 (9th Cir. 2011) [rape under
Cal. Penal Code §261(a)(2)]. Resisting Arrest, U.S. v. Joyner, 882 F.3d 1369(11th Cir. 2018) Page 301
[resisting an officer with violence under Fla. Stat. §843.01 is a COV under ACCA]; U.S. v. Romo-
Villalobos, 674 F.3d 1246 (11th Cir. 2012) [following Johnson and finding that Fla. Stat. §843.01 requires
violent force]; Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007) [Ariz. Rev. Stat. §13-2508].
Robbery, U.S. v. Joyner, 882 F.3d 1369 (11th Cir. 2018) [attempted strong armed robbery under Fla. Stat.
§§812.13(a), (2)(c) & 774.04 is a COV under ACCA]; Thap v. Mukasey, 544 F.3d 674, 676–77 (6th Cir.
2008) [Cal. Penal Code §211]; Gomez v. Ashcroft, 293 F.Supp.2d 162, 165–68 (D. Conn. 2003) [third
degree, Conn. Gen. Stat. §53a-136]; Tung v. Johnson, 159 F.Supp.3d 677, 683-85 (E.D. Va. 2016)
[common law robbery in Virginia under Va. Code Ann. §18.2-58 is a COV under 16(a) and 16(b)]. Sexual
Abuse, Dos Santos v. Gonzales, 440 F.3d 81 (2d Cir. 2006) [Conn. Gen. Stat. §53-21(a)(2)]; Patel v.
Ashcroft, 401 F.3d 400, 407–11 (6th Cir. 2005) [aggravated sexual abuse, 720 Ill. Comp. Stat. 5/12-16];
U.S. v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993) [attempted sexual abuse of a child in the third degree].
Sexual Assault, U.S. v. Sanchez, 667 F.3d 555, 559-66 (5th Cir. 2012) [attempted sexual assault of a
child under Tex. Penal Code Ann. §§22.011(a)(2) and (c)(1)]; Aguilar v. U.S. Att’y Gen., 663 F.3d 692 (3d
Cir. 2011) [sexual assault under 18 Pa. Cons. Stat. §3124.1 is a COV under section 16(b)]; Costa v.
Holder, 611 F.3d 110 (2d Cir. 2010) [in case involving sexual assault of special education student, three
amendments to Conn. Gen. Stat. §53a-71 post-Chery did not take statute out of categorical approach];
Aguiar v. Gonzales, 438 F.3d 86 (1st Cir. 2006) [R.I. Gen. Laws §11-37-6]; Chery v. Ashcroft, 347 F.3d 404
(2d Cir. 2003) [second degree, Conn. Gen. Stat. §53a-71]; Hongsathirath v. Ashcroft, 322 F.Supp.2d 203
(D. Conn. 2004) [fourth degree, Conn. Gen. Stat. §53a-73a]. Sexual Battery, U.S. v. Deshazior, 882 F.3d
1382 (11th Cir. 2018) [sexual battery, under the modified categorical approach in Fla. Stat. §794.011 is a
COV under ACCA]; Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. 2005) [Cal. Penal Code §243.4(a)]; Wireko
v. Reno, 211 F.3d 833 (4th Cir. 2000) [misdemeanor, Va. Code Ann. §18.2-67.4]; Zaidi v. Ashcroft, 374
F.3d 357, 359–61 (5th Cir. 2004) [felony, Okla. Stat. tit. 21, §1123(B)]; Dar v. Olivares, 956 F.Supp.2d
1287, 1295-96 (N.D. Okla. 2013) [Okla. Stat. tit. 21 §1123(B) is a COV under 16(b)]. Sexual Contact U.S.
v. Reyes-Alfonso, 653 F.3d 1137 (10th Cir. 2011) [sexual contact—no consent under Colo. Rev. Stat. §18-
3-404(1) notwithstanding Johnson v. U.S.]. Sexual Penetration U.S. v. Sandoval-Orellana, 714 F.3d
1174, 1178-80 (9th Cir. 2013) [sexual penetration under Cal. Penal Code 289(a)(1) is a COV under 16(b)
but not 16(a)]. Sodomy By Force, Matter of Chavez-Alvarez, 26 I&N Dec. 274, 279-81 (BIA 2014), rev’d
Chavez-Alvarez v. U.S. Att’y Gen., 850 F.3d 583 (3d Cir. 2017) [sentence aggravator under Manual for
Court-Martial for using force in committing sodomy offense does not convert the crime of sodomy to
sodomy by force because the sentence enhancer for force cannot count as the functional equivalent of an
“element” of the offense; only Congress can create crimes and the Manual determines punishment not the
elements of a crime]. Solicitation (to commit assault with a dangerous weapon), Matter of Guerrero,
25 I&N Dec. 631 (BIA 2011) [solicitation under R.I. Gen. Laws §11-1-9 to commit assault with a dangerous
weapon is, under the modified categorical approach, a COV under section 16(b)], (to commit rape and
assault by means of force), Prakash v. Holder, 579 F.3d 1033 (9th Cir. 2009) [solicitation in violation of
Cal. Penal Code §§654f(a), (c)]. Spousal Corporal Injury Banuelos-Ayon v. Holder, 611 F.3d 1080 (9th
Cir. 2010) [corporal injury to a spouse/cohabitant under Cal. Penal Code §273.5 is a COV]; U.S. v.
Laurico-Yemo, 590 F.3d 818, 821 (9th Cir. 2010); U.S. v. Gonzalez-Valerio, 342 F.3d 1051, 1054–56 (9th
Cir. 2003) [Cal. Penal Code §273.5]; Matter of Perez Ramirez, 25 I&N Dec. 203 (BIA 2010). Stalking,
Matter of Singh, 25 I&N Dec. 670 (BIA 2012) [reaffirming Matter of Malta for all other circuits
notwithstanding its reversal in the Ninth Circuit and finding that Cal. Penal Code §646.9(b) regarding
stalking for harassing conduct is a COV under §16(b)]. Statutory Rape, Matter of B-, 21 I&N Dec. 287
(BIA 1996) [Maryland]; U.S. v. Palaguachi, 187 F.Supp.3d 356, 362-64 (E.D.N.Y. 2016) [statutory rape
under N.Y. Penal Law §130.30 is a forcible sex offense COV under the modified categorical approach].
Terrorism, Matter of S-S-, 21 I&N Dec. 900 (BIA 1997). Terrorist Threats, Olmsted v. Holder, 588 F.3d
556 (8th Cir. 2009) [Minn. Stat. §609.713(1) under modified categorical approach established intent not
simply recklessness]; Bovkun v. Ashcroft, 283 F.3d 166, 169–70 (3d Cir. 2002) [18 Pa. Cons. Stat. §2706].
Threats, Arellano Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016) [attempted criminal threat under Cal.
Penal Code §422 is categorically a COV]; Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) [because
Cal. Penal Code §422 criminalizes only the willful threatening of a crime that itself is a CIMT with the
intent and result of instilling sustained and imminent grave fear in another, it is categorically a CIMT];
Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. 2003) [willfully threatening to commit a crime which
will result in death or great bodily injury, Cal. Penal Code §422]; Page 302 U.S. v. Villavicencio-Burruel,
608 F.3d 556, 561-63 (9th Cir. 2010) [post-Johnson Cal Penal Code §422 is a COV because it includes
the threat of use of violent force]; Criminal Trespass, U.S. v. Delgado-Enriquez, 188 F.3d 592 (5th Cir.
1999) [Colorado sentencing case]. Vehicle Flight (Simple), U.S. v. Coronado-Cura, 713 F.3d 597 (11th
Cir. 2013) [sentencing case, Fla. Stat. §316.1935(2)]. Vehicular Homicide, Omar v. INS, 298 F.3d 710,
715–20 (8th Cir. 2002) [Minn. Stat. §609.21, subd.1(4)]. Unauthorized Use of a Vehicle, De La Paz
Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. 2006); U.S. v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.
1999) [sentencing case], Ramirez v. Ashcroft, 361 F.Supp.2d 650, 653–57 (S.D. Tex. 2005) [Texas law],
Matter of Brieva, 23 I&N Dec. 766 (BIA 2005), aff’d, Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir.
2007)[post-Leocal following Galvan-Rodriguez in 5th Circuit]. Use of Vehicle to Facilitate Intentional
Discharge of Firearm, Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. 2004) [Okla. Stat., tit. 12, §652(b)];
Weapon (Exhibiting with Intent to Evade Arrest), Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 941 (9th Cir.
2004)[Cal. Penal Code §417.8]. Weapon (Possession with Intent to Use), Henry v. ICE, 493 F.3d 303
(3d Cir. 2007) [N.Y. Penal Law §265.08]; Brooks v. Holder, 621 F.3d 88 (2d Cir. 2010) [agreeing with
Henry that criminal possession of a weapon in the second degree under N.Y. Penal Law §265.03(1)(b) is
a COV under §16(b)]; Weapon (Pointing a Weapon), Cole v. U.S. Att’y Gen., 712 F.3d 517, 526-28 (11th
Cir. 2013) [SC Code §16-23-40 making it unlawful for a person to present or point at another a loaded or
unloaded firearm is a COV under 16(b)]; Reyes-Soto v. Lynch, 808 F.3d 369 (8th Cir. 2015) [same];
Unlawful Wounding, Singh v. Holder, 568 F.3d 525, 527–30 (5th Cir. 2009) [Va. Code Ann. §18.2-51];
Voluntary Manslaughter (attempted) Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018)
[attempted voluntary manslaughter in violation of Cal. Penal Code §§192(a), 664 is a COV even if
voluntary manslaughter under §192(a) is not because attempted voluntary manslaughter requires specific
intent to cause the death of another].
6.b. Not Crimes of Violence—The following were found to not be COVs:
Arson by Burning or Creating an Explosion Recklessly, Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005)
[conspiracy, 18 Pa. Cons. Stat. §3301(d)(2); Palacios distinguished]. Setting a Fire, Jordison v. Gonzales,
501 F.3d 1134 (9th Cir. 2007) [Cal. Penal Code §452(c) because defendant can be convicted for setting
fire to her own property]. Assault, aggravated, U.S. v. Palomino Garcia, 606 F.3d 1317, 1325-37 (11th
Cir. 2010) [ignoring the label aggravated assault under Ariz. Rev. Stat. §13-1204(A)(7), a conviction did
not require use of a deadly weapon or serious bodily injury and contained a mens rea of recklessness];
Assault, Attempted, Dale v. Holder, 610 F.3d 294 (5th Cir. 2010) [N.Y. Penal Law §120.10 regarding
assault is not categorically a COV because a defendant may plead (but not be convicted by a jury) of two
legally impossible crimes of attempted reckless assault and attempted felony assault that are not COVs];
Assault (Simple), Popal v. Gonzales, 416 F.3d 249, 253–55 (3d Cir. 2005) [misdemeanor, 18 Pa. Cons.
Stat. §2701(a)(1)]; Assault (Second Degree), Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013)
[misdemeanor second-degree assault under Maryland Ann. Cod., Crim. Law. §3-203 punishes both
violent and nonviolent conduct]; Persaud v. McElroy, 225 F.Supp.2d 420 (S.D.N.Y. 2002) [N.Y. Penal Law
§120.05(6)]. Assault (Second Degree, Reckless), Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006) [N.Y.
Penal Law §120.05(4)]. Assault (Third Degree), Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015) [third-
degree assault under Conn. Gen. Stat. §53a-61(a)(1) is not a COV]; Villanueva v. Holder, 784 F.3d 51 (1st
Cir. 2015) [Conn. Gen. Stat. §53a-61 is not categorically a COV because only one prong requires
intentional conduct and on the record it was not possible to determine which prong defendant pleaded
nolo]; Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) [Conn. Gen. Stat. §53a-61]; but see Matter of
Martin, 23 I&N Dec. 491 (BIA 2002). Assault (Fourth Degree), Suazo Perez v. Mukasey, 512 F.3d 1222
(9th Cir. 2008) [Wash. Rev. Code §9A.36.041, may be convicted for nonconsensual offensive touching
which is not a COV]. Assault and Battery, Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010) [following
Johnson and holding that a misdemeanor assault and battery against a family or household member
under Va. Code Ann. §18.2-57.2(A) is not categorically a crime of violence because it does not include
violent force and therefore is not a domestic violence crime under INA §237(a)(2)(E)(i)]; Andrade v.
Gonzales, 459 F.3d 538, 544 (5th Cir. 2006) [Mass. Gen. Laws ch. 265, §13A, but where one of the acts
constituted a violation of a domestic abuse protective order the person was convicted of an aggravated
felony]. Auto Theft, Van Don Nguyen v. Holder, 571 F.3d 524 (6th Cir. 2009) [Cal. Penal Code §487].
Battery, Johnson v. U.S., 559 U.S. 133 (2010) [simple battery under Fla. Stat. §784.03(1)(a), (2) by
“actually and intentionally touching” another Page 303 person does not have as an element the use of
physical force under 18 USC §924(e)(2)(B)(i), which the court noted was very similar to 18 USC §16, and
thus cannot be characterized as a violent felony]; Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir.
2006) [simple, Cal. Penal Code §242; U.S. v. Robinson, 967 F.2d 287 (9th Cir. 1992) distinguished];
Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) [misdemeanor, Ind. Code §35-42-2-1]. Battery,
Aggravated Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) [third degree aggravated battery
under P.R. Penal Code Art. 122 is not a COV because it does not categorically require violent force];
Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) [modified categorical approach, Kan. Stat. Ann. §21-
3414(a)(1)(C)]. Burglary, U.S. v. Gomez-Guerra, 485 F.3d 301 (5th Cir. 2007) [sentencing case, Fla. Stat.
§810.02(3)]. Burglary (Aggravated), U.S. v. Reina-Rodriguez, 468 F.3d1147 (9th Cir. 2006) [attempt,
Utah Code Ann. §76-6-203]. Burglary (Dwelling), U.S. v. Garcia-Martinez, 845 F.3d 1126 (11th Cir. 2017)
[second degree burglary of a dwelling under Fla. Stat. §810.02(3) is not a COV because the definition of
dwelling includes curtilage]; U.S. v. Esprit, 841 F.3d 1235 (11th Cir. 2016) [same as to Fla. Stat.
§810.02(1)(b)(1) for felony burglary]. Burglary (First Degree), Descamps v. U.S., 570 U.S. 254 (2013)
[burglary under Cal. Penal Code §459 is categorically not a COV because it does not correspond to the
generic definition that includes unlawful entry and, because it is not divisible, it is not a COV under
modified categorical approach]; Sessions v. Dimaya, 584 U.S. ___, 138 S.Ct. 1204 (2018) [following
Johnson and finding that the definition of crime of violence under §16b and the use of the “ordinary case”
approach was void-for-vagueness in the context of determining whether Cal. Penal Code §459 (first
degree burglary) was a crime-of-violence aggravated felony]. Burglary of a Vehicle, Sareang Ye v. INS,
214 F.3d 1128, 1133–34 (9th Cir. 2000) [Cal. Penal Code §459, entry of locked vehicle]; Solorzano-Patlan
v. INS, 207 F.3d 869, 874–75 (7th Cir. 2000) [720 Ill. Comp. Stat. 5/19-1(a)]; but see Santos v. Reno, 228
F.3d 591, 597 n.13 (5th Cir. 2000) [Tex. Penal Code §30.04 is a COV but not a burglary offense under
§101(a)(43)(G)]. Carjacking (under state law), Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018)
[finding Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) no longer good law in light of Johnson
and that Cal. Penal Code §215 is therefore not COV]. Child Abuse (Criminal Negligent), Matter of
Sweetser, 22 I&N Dec. 709 (BIA 1999) [Colorado law]. Child Abuse (Felony), Ramirez v. Lynch, 810 F.3d
1127 (9th Cir. 2016) [Cal. Penal Code §273a(a) is not a COV and is not divisible]; Child Endangerment,
U.S. v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) [Tex. Penal Code §22.041(c)]. Coercion, Cortez-
Guillen v. Holder, 623 F.3d 933 (9th Cir. 2010) [coercion in violation of Alaska Statute §11.41.530(a)(1) is
not categorically a COV]; Domestic Battery, Matter of Sanudo, 23 I&N Dec. 968, 974–75 (BIA 2006) [Cal.
Penal Code §§242 and 243(e)(1) under modified categorical approach]; but see Matter of Milian, 25 I&N
Dec. 197 (BIA 2010).Domestic Violence, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en
banc) [misdemeanor domestic violence assault, Ariz. Rev. Stat. §§13-1203 and 13-3601]. Driving Under
the Influence (Felony), Leocal v. Ashcroft, 543 U.S. 1 (2004) [DUI causing serious bodily injury under
Florida law was not a COV because the “use … of physical force” under §16(a) or the “substantial risk that
physical force … may be used” under §16(b) are given an “identical construction requiring a higher mens
rea than the merely accidental or negligent conduct involved in a DUI offense”]; Matter of Ramos, 23 I&N
Dec. 336 (BIA 2002) [enhanced penalty DUI conviction under Mass. law is not aggravated felony because
COV must be volitional, and therefore at a minimum must require recklessness finding; overruled Puente
& Magallanes]; Matter of Olivares, 23 I&N Dec. 148 (BIA 2001) [in Fifth Circuit, BIA will not apply Puente
because of Chapa-Garza]; U.S. v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) [Tex. Penal Code Ann.
§49.04, where there is no injury to another], Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002) [DUI
with injury to another]; Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) [N.Y. Veh. & Traffic Law §1192(3)];
Bazan-Reyes v. INS, 256 F.3d 600, 605–12 (7th Cir. 2001) [aggravated drunk driving including homicide
by the intoxicated use of a vehicle; distinguishing Rutherford a sentencing guideline case]; U.S. v. Chapa-
Garza, 243 F.3d 921, 927 (5th Cir. 2001) [Texas DWI]. Extortionate Extension of Credit, Accardo v. U.S.
Att’y Gen., 634 F.3d 1333 (11th Cir. 2011) [18 USC §892(a) is not categorically a COV under §16a or
§16b]. Evading a Police Officer, Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008) [Cal. Veh. Code
§2800.2(a)]. Harassment, Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. 2004) [Or. Rev. Stat. §166.065(1)(a)
(A)]. Firearms (Discharging), U.S. v. Narvaez-Gomez, 489 F.3d 970, 975–77 (9th Cir. 2007) [following
Fernandez-Ruiz, Cal. Penal Code §246]; Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) (Chairez III)
[felony discharge of a firearm under Utah Code §76-10-508.1 is “categorically overbroad” relative to the
definition of COV under 16(a) because it permits a conviction Page 304 for reckless behavior without a
jury distinguishing the mental state of the defendant]; Harassment-by-Telephone, Szucz-Toldy v.
Gonzales, 400 F.3d 978 (7th Cir. 2005) [720 Ill. Comp. Stat. 135/1-1(2)].Imprisonment (Unlawful),
Dickson v. Ashcroft, 346 F.3d 44, 48–55 (2d Cir. 2003) [first degree imprisonment of an incompetent
person or child under N.Y. Penal Law §135.10]. Laser Targeting, Matter of Tavarez Peralta, 26 I&N Dec.
171, 177-78 (BIA 2013) [a conviction under 18 USC §32(a)(5) for willfully interfering in the operation of an
aircraft with reckless disregard for the safety of human life where a defendant targeted a laser beam at a
police helicopter pilot was not a COV under 16(b)]; Manslaughter, Quijada-Aguilar v. Lynch, 799 F.3d
1303, 1305-07 (9th Cir. 2015) [Cal. Penal Code §192(a) for voluntary manslaughter is not categorically a
COV because a person may be convicted for mere recklessness]; U.S. v. Torres-Villalobos, 487 F.3d 607,
613–17 (8th Cir. 2007) [Minn. Stat. §609.205]; Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) [second
degree, N.Y. Penal Law §125.15(1)]. But see Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018)
[distinguishing Quijada-Aguilar and finding that attempted voluntary manslaughter in violation of Cal.
Penal Code §§192(a), 664 is a COV even if voluntary manslaughter under §192(a) is not because
attempted voluntary manslaughter requires specific intent to cause the death of another or it would be a
legally impossible crime of attempting to recklessly kill someone]; Matter of Vargas, 23 I&N Dec. 651 (BIA
2004), aff’d, 448 F.3d 159 (2d Cir. 2006) [distinguishing Jobson and finding first degree manslaughter,
N.Y. Penal Law §125.20 is a COV]. Involuntary Manslaughter, Bejarano-Urrutia v. Gonzales, 413 F.3d
444 (4th Cir. 2005) [Va. Code Ann. §18.2-36]. Obstruction of Legal Process, Ortiz v. Lynch, 796 F.3d
932 (8th Cir. 2015) [Obstructing Legal Process, Arrest or Firefighting under Minn. Stat. §609.50 subd. 2(2)
is not a COV because to sustain a conviction it requires less force that that “causing physical pain or injury
to another” as required under Johnson]; Reckless Endangerment, Singh v. Gonzales, 432 F.3d 533,
540–41 (3d Cir. 2006) [18 Pa. Cons. Stat. Ann. §2705]. Resisting Arrest, Flores-Lopez v. Holder, 685
F.3d 857 (9th Cir. 2012) [resisting executive officer under Cal. Penal Code §69 is not categorically a crime
of violence under 16(a) or 16(b)]; Robbery, U.S. v. Becerril-Lopez, 541 F.3d 881, 889–93 (9th Cir. 2008)
[Cal. Penal Code §211]. Sexual Abuse, First Degree, U.S. v. Davis, 875 F.3d 592 (11th Cir. 2017) [first
degree, sexual abuse under Ala. Code §13A-6-66(a) not a violent felony under ACCA]. Sexual Abuse of
a Child (Second Degree), Matter of Small, 23 I&N Dec. 448, 449 n.1 (BIA 2002) [N.Y. Penal Law
§130.60]; U.S. v. Gomez, 757 F.3d 885, 902-09 (9th Cir. 2014) [attempted sexual contact with a minor
under the age of 15 under Ariz. Rev. Stat. 13-1405 is not a COV]. Sexual Assault, Rodriguez v. Holder,
705 F.3d 207 (5th Cir. 2013) [following Leocal a conviction under Tex. Penal Code §22.011(a)(1) for
sexual assault is not a COV under 16(b); Zaidi distinguished]; Sexual Assault of a Child, Xiong v. INS,
173 F.3d 601, 604–07 (7th Cir. 1999) [Wis. Stat. §948.02(2) looked to criminal complaint to demonstrate it
was consensual between 18-year-old boyfriend and 15-year-old girlfriend]. Sexual Battery, U.S. v.
Meraz-Enriguez, 442 F.3d 331 (5th Cir. 2006) [Kan. Stat. Ann. §21-3518, aggravated touching of 16-year-
old or older without consent]; U.S. v. Bonilla-Mungia, 422 F.3d 316, 320–22 (5th Cir. 2005) [Cal. Penal
Code §243.4 (1998) contain sections that are not COVs]. Sexual Intercourse with a Minor, Valencia v.
Gonzales, 439 F.3d 1046 (9th Cir. 2006) [absent aggravating factors such as incest or a substantial age
difference, Cal. Penal Code §261.5(c) is not a COV]. Shooting into an Apartment in a Residential
Neighborhood (Criminal Recklessness), Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008)
[third degree, Ind. Code §35-42-2-2(b)(1)]. Shooting into an Occupied Dwelling, Covarrubias Teposte v.
Holder, 632 F.3d 1049 (9th Cir. 2011) [shooting under Cal. Penal Code §246 is not categorically a COV];
U.S. v. Alfaro, 408 F.3d 204, 207–09 (5th Cir. 2005) [Va. Code. Ann. §18.2-279]. Sodomy, Chavez-
Alvarez v. U.S. Att’y Gen., 850 F.3d 583 (3d Cir. 2017) [reversing Matter of Chavez-Alvarez, 26 I&N Dec.
274, 279-81 (BIA 2014) because sodomy after Lawrence v. Texas is not a crime and the use by the BIA of
a sentence aggravator under Manual for Court-Martial to convert the sodomy offense to forcible sodomy
was impermissible as a sentence enhancer for force cannot count as the functional equivalent of an
“element” of the offense; only Congress can create crimes and the Manual determines punishment not the
elements of a crime]. Stalking,Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007)[reversing
Matter of Malta, 23 I&N Dec. 656 (BIA 2004), stalking under Cal. Penal Code §646.9(b) is not a COV];
Trespass (Residential), Zivkovic v. Holder, 724 F.3d 894, 903-06 (7th Cir. 2013) [distinguishing
Sentencing Guidelines and ACCA and finding that residential trespass under Illinois statute 720 ILCS
5/19-4(a)(2) did not create a substantial risk of injury under 16(b)]; Vehicle, U.S. v. Estrella, 758 F.3d 1239
(11th Cir. 2014) [violation of Fla. Stat. §790.19 for wantonly or maliciously throwing a missile at an
occupied vehicle is not a COV under Page 305 USSG §2L1.2(b)(1)(A)(ii) under either the categorical or
modified categorical approach]; Vehicular Homicide, Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005)
[N.J. Stat. Ann. §2C:11-5(b)(1)]; Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005) [gross vehicular
manslaughter while intoxicated, Cal. Penal Code §191.5(a)]; Francis v. Reno, 269 F.3d 162 (3d Cir. 2001)
[homicide by vehicle, 75 Pa. Cons. Stat. Ann. §3732 where convicted for unintentional/negligent conduct],
U.S. v. Mojica-Linos, 399 F.Supp.2d 1115, 1119–21 (W.D. Wash. 2005) [Wash. Rev. Code §46.61.520(1)
(a)–(b)]; Weapons (Possession of), U.S. v. Reyes, 907 F.Supp.2d 1068, 1072-77 (N.D. Cal. 2012) [post-
Leocal possession of a short-barreled shotgun under Cal. Pen. Code §12020(a)(1) is not a COV under
16(b)].
7. Theft, Burglary, or Receipt of Stolen Property [101(a)(43)(G)]
7.a. Generally—A theft offense (including receipt of stolen property) or burglary offense for which the term
of imprisonment imposed is at least one year (regardless of any suspension of such imprisonment or
sentence). Dawkins v. Holder, 762 F.3d 247 (2d Cir. 2014) [term of imprisonment, following U.S. v.
Rodriguez, 553 U.S. 377 (2008), includes applicable state recidivist sentence enhancement]; Hernandez
v. Holder, 760 F.3d 855 (8th Cir. 2014) [sentenced to 3 years’ probation with the condition that he spend
the first 365 days in county jail is a sentence to imprisonment of one year]; U.S. v. Asencio-Perdomo, 674
F.3d 444 (5th Cir. 2012) [“term of imprisonment” in INA §101(a)(43)(G) refers to sentence actually
imposed, not minimum possible sentence]; Jaafar v. INS, 77 F.Supp.2d 360, 364–65 (W.D.N.Y. 1999) [a
sentence to a one-year term of imprisonment for petit larceny, although a misdemeanor under state law is
an aggravated felony for purposes of INA §101(a)(43)(G)]. Accord U.S. v. Graham, 169 F.3d 787 (3d Cir.
1999).
7.b. Burglary—The Supreme Court in Taylor v. U.S., 495 U.S. 575, 598–99 (1990), has determined that
burglary has a uniform national definition as the “unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” See also Descamps v. U.S., 570 U.S. 254 (2013)
[burglary under Cal. Penal Code §459 is categorically not generic “burglary” under Armed Career Criminal
Act because it includes privileged entry]. ]; Mathis v. U.S., 579 U.S. __, 136 S.Ct. 2243, 2248 (2016)
[“Iowa’s burglary statute … covers more conduct than generic burglary does.”].The BIA agrees. Matter of
Perez, 22 I&N Dec. 1325 (BIA 2000) [burglary of a vehicle under Tex. Penal Code Ann. §30.04(a) is not a
burglary offense within definition of INA §101(a)(43)(G)]. Accord, Castendet-Lewis v. Sessions, 855 F.3d
253, 260-64 (4th Cir. 2017) [burglary under Va. Code §18.2-91 is not divisible and is broader than the
federal crime of generic burglary because it includes entry without breaking, concealment after entry, and
burglary of nonstructures or buildings such as ships and automobiles]; Sareang Ye v. INS, 214 F.3d 1128,
1131–33 (9th Cir. 2000) [vehicle burglary not an aggravated felony because it is not a burglary];
Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000); Lopez-Elias v. Reno, 209 F.3d 788, 791–92 (5th
Cir. 2000) [same but is COV]; Solorzano-Patlan v. INS, 207 F.3d 869, 874–75 (7th Cir. 2000). But see
Matter of Jasso Arangure, 27 I&N Dec. 178, 185-86 (BIA 2017)[home invasion in the first degree under
Mich. Comp. Laws §750.110a(2) is categorically a burglary offense].
7.c. Theft—The generic definition of theft was also adopted by the Supreme Court in Gonzales v. Duenas-
Alvarez, 549 U.S. 183 (2007),as the “taking of property or exercising control over property, without
consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if
deprivation is less than total or permanent.” The BIA and the lower courts have interpreted the theft
provision in the same manner finding that “a taking of property constitutes a ‘theft’ whenever there is a
criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less
than total or permanent.” Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000) [relying on U.S. v. Turley and the
Model Penal Code §223; specific intent to permanently deprive the owner of property is not a
requirement]. Accord Lecky v. Holder, 723 F.3d 1 (1st Cir. 2013) [second-degree larceny under Conn.
Gen. Stat. §53a-123(a)(3) is categorically a theft offense]; Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009)
[adopting the broad definition of theft under Matter of V-Z-S- pursuant to Chevron deference and holding
that Conn. Gen. Stat. §53a-119 is categorically a theft offense despite its divisibility into an intent to
deprive and an intent to appropriate]. See also Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) [in a
case involving whether shoplifting under Ariz. Rev. Stat. §13-1805A Page 306 was a CIMT, BIA has
changed its view so that not only intent to permanently deprive a person of his property constitutes a
CIMT but now it is “an intent to deprive the owner of his property either permanently or under
circumstances where the owner’s property rights are substantially eroded.”].
(1) Theft and Fraud Distinguished—See in this section “Hybrid Crimes,” ¶ 7.g (p.307), infra.
(2) Extortionate Taking is Theft—The BIA has expanded its definition of aggravated felony theft to now
include extortionate takings. Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016) [Cal. Penal Code §211
robbery by force or fear is an agg. felony theft offense because extortionate taking is without consent].
(3) Temporary Appropriation is Not Theft—When a statute is divisible, it may not be an aggravated felony
if the government does not prove a conviction by clear and convincing evidence under the appropriate
section. Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1352–56 (11th Cir. 2005) [grand theft, Fla. Stat.
§812.014(1), is a divisible statute that includes under subsection (b) a temporary appropriation of the
use of the property, and is therefore not necessarily “theft” under the common law definition because it
lacks intent to deprive owner of rights and benefits of ownership]. See also Ramos v. U.S. Att’y Gen.,
709F.3d 1066 (11th Cir. 2013) [following Jaggernauth respondent conviction for theft under Ga. Code
Ann. 16-8-14 shoplifting statute was not an aggravated felony because the statute is divisible and
respondent was charged only with appropriation not theft]; U.S. v. Medina-Torres, 703 F.3d 770 (5th
Cir. 2012) [followed Jaggernauth in analysis of Florida theft statute and vacated sentence]. See also
U.S. v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) [adopting 7th Cir. definition in
context of petty theft of beer and cigarettes under Cal. Penal Code §484(a) but finding them not to be
aggravated felonies]. But see De Lima v. Sessions, 867 F.3d 260 (1st Cir. 2017) [rejected claim that
third degree larceny under Conn. Gen. Stat. §53a-124 is overbroad and not an aggravated felony
because it imposes liability for taking of property without intent to permanently deprive another of the
property and because the statute includes theft of services].
7.d. Receipt of Stolen Property—The BIA has also broadly interpreted the receipt of stolen property
provision. In Matter of Bahta, 291 F.3d 22 I&N Dec. 1381, 1390 (BIA 2000), the BIA found that the “receipt
of stolen property” parenthetical was used in a generic sense to “include the category of offenses
involving knowing receipt, possession or retention of property from its rightful owner.” The BIA rejected the
view that the statute should be limited to the definition contained in 18 USC §2315, and instead looked to
a variety of state and federal statutes as well as the Model Penal Code §223.6.Matter of Bahta at 1386–
90. In Matter of Cardiel, 25 I&N Dec. 12 (BIA 2009), the Board recognized that “theft” and “receipt of
stolen property” are separate offenses and that it is not necessary to establish the elements of theft to
prove an aggravated felony for receipt. The BIA found that receipt of stolen property under Cal. Penal
Code §496(a), with a sentence of imprisonment of at least one year, is an aggravated felony. See also
Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017) where the Board determined that the receipt of
stolen property provision under Cal. Penal Code §496(a) does not require that the unlawfully received
property be obtained by means of common law theft or larceny, thereby reading the theft and stolen
property provisions separately.However, a receipt of stolen property conviction does require that the
offender receiving the property has the “knowledge or belief” that the property is stolen.Matter of Deang,
27 I&N Dec. 57 (BIA 2017) [rejecting a conviction under a “reason to believe standard” as a sufficient
mens rea for a finding or removability]; Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) regarding mens rea
needed for an aggravated felony, infra; Lewin v. U.S. Att’y Gen., 885 F.3d 165 (3d Cir. 2018) [NJ receipt of
stolen property statute, N.J. Stat. Ann. §2C:20-7(a) which permits a mens rea for conviction where one
believes the property is “probably stolen” requires knowledge and belief and therefore is an aggravated
felony].
At least one circuit has disagreed with the BIA’s determination that the theft and receipt of stolen property
provisions are analyzed separately. Relying on the “generic” approach in Taylor,the Seventh Circuit
determined that “theft offense (including receipt of stolen property)” should be read broadly as one offense
(“theft”) that includes an example of theft (“receipt of stolen property”), and not as two separate offenses,
so that the definition is the generic definition of theft. Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th
Cir. 2001) [possession of a Page 307 stolen motor vehicle under 625 Ill. Comp. Stat. 5/4-103(a)(1) is a
theft offense]. But see Alvarez-Reynaga v. Holder, 596 F.3d 534 (9th Cir. 2010) [receiving a stolen vehicle
under Cal. Penal Code §496d(a)]; Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. 2009) [receipt of
stolen property under Cal. Penal Code §496(a) is categorically an aggravated felony]. See also Kendall v.
Mooney, 273 F.Supp.2d 216, 220–22 (E.D.N.Y. 2003) [following Bahta and VZS and finding 4th degree
criminal possession of stolen property under N.Y. Penal Law §165.45 an aggravated felony].
7.e. Aiding and Abetting—The generic approach, following Taylor, also includes aiding and abetting under
the theft statutes. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) [Cal. Veh. Code Ann. §10851(a)
including aiding and abetting is an aggravated felony]. See also Matter of Delgado, 27 I&N Dec. 100 (BIA
2017) [finding that aiding and abetting robbery under Cal. Penal Code §211 is generically an aggravated
felony even if §211 required transportation of goods, that is asportation, because asportation under
California law is a narrower (not a broader) requirement than generic theft and a conviction as an aider
and abettor under California law requires that the defendant is considered to have committed all elements
of the crime]. In Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012), the Board determined that
“accomplice” liability under Ark. Code Ann. §5-2-403(a) constituted aiding and abetting residential burglary
under the modified categorical approach. However, the Ninth Circuit has determined that accessory after
the fact is not an aiding-and-abetting crime because it does not carry the requisite intent. U.S. v. Vidal,
504 F.3d 1072, 1078 (9th Cir. 2007) (en banc) [Cal. Veh. Code §10851(a) is not categorically a theft crime
because a person may be convicted as an accessory after the fact].
7.f. Mens Rea Requirement—In Matter of Sierra, 26 I&N Dec. 288 (BIA 2014), the BIA examined the mens
rea requirement for theft in the context of receipt of stolen property. Guided by Ninth Circuit law, the Board
held that attempted possession of a stolen vehicle under Nev. Rev. Stat. §205.273 is not an aggravated
felony because a person may be convicted if he only had “reason to believe” that the vehicle was stolen.
The mental state of “reason to believe” is insufficient to qualify categorically as an aggravated felony theft
offense.
7.g. Hybrid Crimes—It is important to analyze the statute to determine whether a fraud offense is a theft
offense under the appropriate law, particularly in light of the strict divisibility decisions in Mathis and
Descamps. The BIA clarified Matter of V-Z-S- to distinguish theft crimes from fraud finding that theft
crimes involve taking property without consent and fraud and deceit crimes under INA §101(a)(43)(M)(i)
involve taking property with consent that has been fraudulently obtained. Matter of Garcia-Madruga, 24
I&N Dec. 436 (BIA 2008) [IJ’s determination that R.I. Gen. Laws §40-6-15 concerning welfare fraud was a
theft crime was in error]. See also Vassell v. U.S. Att’y Gen., 839 F.3d 1352 (11th Cir. 2016) [relying on
distinction between theft and fraud in Garcia-Madruga and finding that Ga. Code Ann. §16-8-2 “theft by
taking” statute is not categorically a theft offense because it does not require taking without consent];
Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) [Cal. Penal Code §666 is categorically not a theft
offense because it is both overbroad and indivisible]; Garcia v. Lynch, 786 F.3d 789, 794-96 (9th Cir.
2015) [Cal. Penal Code 487(a) is overbroad in that it includes theft of labor and theft even if the victim
consented to the transfer of property neither of which are included within the generic definition of theft,
and under the modified categorical approach the government cannot prove that the theft was not
consensual]; Martinez v. Mukasey, 519 F.3d 532, 540–42 (5th Cir. 2008) [bank fraud under 18 USC §1344
is not a theft offense because theft requires property being taken without the owner’s consent whereas
fraud occurs with consent although unlawfully obtained]; Soliman v. Gonzales, 419 F.3d 276, 284–86 (4th
Cir. 2005) [fraudulent use of a credit card under Va. Code Ann. §18.2-195, while a fraud offense, is not a
theft offense]. One court had found that a theft offense that is also an offense involving fraud or deceit, is
an aggravated felony only if the conviction qualifies under the definition of both, but later repudiated that
reasoning as inconsistent with the plain meaning of the statute. Al-Sharif v. USCIS, 734 F.3d 207 (3d Cir.
2013 (en banc) overruling Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004) which had held that where
respondent convicted of theft by deception under 18 Pa. Cons. Stat. Ann. §3922(a) but amount was less
than $10,000, he was not convicted of an aggravated felony. Page 308
Theft Offenses as Aggravated Felonies
Attempted Possession of Stolen Property,Matter of Bahta, 291 F.3d 22 I&N Dec. 1381 (BIA 2000) [Nev.
Rev. Stat. §§193.330 & 205.275]. Attempted Robbery, U.S. v. Fernandez-Antonia, 278 F.3d 150, 161–63
(2d Cir. 2002) [third degree, N.Y. law, in sentencing context]. Burglary as Attempted Theft, Bunty Ngaeth v.
Mukasey, 545 F.3d 796 (9th Cir. 2008) [Cal. Penal Code §459, entering a locked vehicle with the intent to
commit theft]; but see Descamps v. U.S., 570 U.S. 254 (2013) [Cal. Penal Code §459 is not a burglary
offense because it does not meet the generic definition of burglary and it is not subject to the modified
approach because it is not divisible]; Vaca-Tellez v. Mukasey, 540 F.3d 665, 668–72 (7th Cir. 2008) [burglary
of an automobile, 720 Ill. Comp. Stat. 5/19-1(a)]. Conversion of Property of Another, Nolos v. Holder, 611
F.3d 279, 284-86 (5th Cir. 2010) [conviction under Nevada Rev. Stat. §205.0832(1)(b) for creating phony
merchandise refunds while employed at department store]; Diversion of Services, Ilchuk v. U.S. Att’y Gen.,
434 F.3d 618, 622–23 (3d Cir. 2006) [citing Taylor, the court held that where the common law definition may
not be in tune with more modern forms of theft, a contemporary or generic approach is more appropriate, and
holding that 18 Pa. Cons. Stat. Ann. §3926, which includes diversion of services, is an aggravated felony].
Larceny (Theft of Services), Abimbola v. Ashcroft, 378 F.3d 173, 175–80 (2d Cir. 2004) [third degree, Conn.
Gen. Stat. §53a-124]; Plummer v. Ashcroft, 258 F.Supp.2d 43, 46–47 (D. Conn. 2003) [Conn. Gen. Stat.
§53a-123(a)(3)]. Robbery, Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016) [Cal. Penal Code §211 robbery by
force or fear is an agg. felony theft offense because extortionate taking is without consent]; U.S. v. Alvarado-
Pineda, 774 F.3d 1198 (9th Cir. 2014) [second degree robbery under Wash. Rev. Code §9A.56.190]; Tung v.
Johnson, 159 F.Supp.3d 677, 682-83 (E.D. Va. 2016) [common law robbery in Virginia under Va. Code Ann.
§18.2-58]. Possession of Stolen Mail, Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. 2002) [18 USC
§1708]. Possession of Stolen Property, Burke v. Mukasey, 509 F.3d 695 (5th Cir. 2007) [N.Y. Penal Law
§165.50]. Theft, Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1169–70 (9th Cir. 2006) [Ariz. Rev. Stat. §§13-
1802(A)(1) & (C)]. Theft of Personal Property, Ramirez-Villalpando v. Holder, 645 F.3d 1035 (9th Cir. 2011)
[based on abstract of judgment and charging document, Cal. Penal Code, 487(a) is an agg. felony under
modified categorical approach]. Theft of Services, Ilchuk v. U.S. Att’y Gen., 434 F.3d 618, 622–23 (3d Cir.
2006) [18 Pa. Cons. Stat. Ann. §3926, which includes diversion of services]. Petty Theft with a Prior Jail
Term, Mutascu v. Gonzales, 444 F.3d 710 (5th Cir. 2006) [Cal. Penal Code §666; U.S. v. Corona-Sanchez
rejected]. Trespass (Motion Vehicle), U.S. v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012) [Colo. Rev.
Stat. §18-4-502 is an attempt to commit “theft” aggravated felony under modified categorical approach where
record of conviction shows entry into vehicle with intent to commit a theft crime]. Vehicle Theft, Gonzales v.
Duenas-Alvarez, 549 U.S. 183 (2007) and on remand 733 F.3d 812 (9th Cir. 2013) [Cal. Veh. Code
§10851(a) including aiding and abetting]; Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000) [Cal. Veh. Code
§10851], Arteaga v. Mukasey, 511 F.3d 940, 946–48 (9th Cir. 2007) [Cal. Veh. Code §10851(a) where not an
accessory after the fact]; U.S. v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001) [attempted receiving or
transferring a stolen motor vehicle under Utah Code Ann. §41-1a-1316]; Hernandez-Mancilla v. INS, 246 F.3d
1002 (7th Cir. 2001) [possession of a stolen vehicle, 625 Ill. Comp. Stat. 5/4-103(a)(1)].
Offenses Ruled Not Theft Aggravated Felonies
Chop Shop Ownership, Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009) [Cal. Veh. Code §10801].
Credit Card Fraud, Soliman v. Gonzales, 419 F.3d 276, 284–86 (4th Cir. 2005) [Va. Code §18.2-195 is a
fraud offense but not a theft offense].Grand Larceny, Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) [Va.
Code Ann. §18.2-95 for grand larceny is not divisible and not an aggravated felony]; Grand Theft, Garcia v.
Lynch, 786 F.3d 789, 794-96 (9th Cir. 2015) [Cal. Penal Code §484(a) is not an agg. felony under the
categorical or modified categorical approach]; Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1352–56 (11th
Cir. 2005) [Fla. Stat. §812.014(1) is divisible, includes a temporary appropriation of property without requisite
intent to deprive owner, and therefore is not necessarily “theft” under the common law definition], Martinez-
Perez v. Ashcroft, 417 F.3d 1022 (9th Cir. 2005) [modified categorical approach, Cal. Penal Code §487(c)].
Identity Theft, Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. 2009) [Or. Rev. Stat. §475.992(4b)]. Petty
Theft, U.S. v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) [Cal. Penal Code §484(a)].
Possession of Stolen Vehicle, Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003) [Ariz. Rev. Stat.
§13-1802 encompasses acts that do not require criminal intent]; Matter of Sierra, 26 I&N Dec. 288 (BIA 2014)
Page 309 [attempted possession of a stolen vehicle under Nev. Rev. Stat. §205.273 lacks sufficient mens rea
to be aggravated felony theft]. Shoplifting, Ramos v. U.S. Att’y Gen., 709F.3d 1066 (11th Cir. 2013)
[following Jaggernauth respondent conviction for theft under Ga. Code Ann. 16-8-14 shoplifting statute was
not an aggravated felony because the statute is divisible and respondent was charged only with appropriation
not theft]; Theft By Taking, Vassell v. U.S. Att’y Gen., 839 F.3d 1352 (11th Cir. 2016) [relying on distinction
between theft and fraud in Garcia-Madruga and finding that Ga. Code Ann. §16-8-2 “theft by taking” statute is
not categorically a theft offense because it does not require taking without consent]; Vehicle Theft, Castillo v.
Holder, 776 F.3d 262 (4th Cir. 2015) [unauthorized use of a motor vehicle in violation of Va. Code 18.2-102 is
not an aggravated felony even under Matter of V-Z-S- because a defendant can be convicted for de minimis
deprivation amounting to “glorified borrowing”]; Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. 2003) [Ariz.
Rev. Stat. §13-1814 is divisible and certain sections do not require intent to deprive]. Welfare Fraud, Matter
of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008) [R.I. Gen. Laws §40-6-15].
8. Ransom Offenses [INA §101(a)(43)(H)]—Including: using interstate communications to demand ransom or

threaten kidnap [18 USC §875); using mails to make threatening communication [18 USC §876]; making
threatening communications from foreign countries [18 USC §877]; receiving, possessing, or disposing of
ransom money or property [18 USC §1202].
9. Child Pornography Offenses [INA §101(a)(43)(I)]—Including: employing, using, or coercing minors to

engage in pornography [18 USC §2251]; selling or transferring custody of a child with knowledge that the
child will be used for pornography [18 USC §2251A]; receiving or distributing child pornography [18 USC
§2252]. Matter of R-A-M-, 25 I&N Dec. 657, 658-59 (BIA 2012) [knowing possession of child pornography
under Cal. Penal Code §311.11(a) is a crime “described in” this section]; Weiland v. Lynch, 835 F.3d 207 (2d
Cir. 2016) [conviction for possession of an obscene sexual performance by a child in violation of N.Y. Penal
Law §263.11 is an aggravated felony despite the state statute lacking a federal jurisdictional requirement that
exists under 18 USC §2252(a)(4)]; Kaufmann v. Holder, 759 F.3d 6 (1st Cir. 2014) [conviction under Conn.
law for knowing possession of child pornography]. But see Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir.
2015) [Cal. Penal Code §311.11(a) sweeps in a broader range of pornographic depictions than the federal
statute, 18 USC §2252(a)(4)(B) and is thus not an aggravated felony]; Aguilar-Turcios v. Holder, 740 F.3d
1294 (9th Cir. 2014) [conviction under Article 92 of UCMJ for failure to obey lawful general order prohibiting
use of military computer for “pornography” is not an aggravated felony under this section because it does not
have as an element pornographic depiction of a minor]; Gonzalez v. Ashcroft, 369 F.Supp.2d 442, 447–54
(S.D.N.Y. 2005) [N.Y. Penal Law §263.05, parents consenting to the participation of their child in a sexual
performancehas no scienterrequirement and is not an aggravated felony under this or sexual-abuse-of-minor
section].
10. RICO offenses [INA §101(a)(43)(J)] “described in” 18 USC §1962, an offense described in §1084 (if it is a
second or subsequent offense) or §1955 (relating to gambling offenses) for which a sentence of one-year
imprisonment or more may be imposed. Murillo-Prado v. Holder, 735 F.3d 1152 (9th Cir. 2013) [under the
modified categorical approach Ariz. Rev. Stat. §13-2301(D)(4) for racketeering regarding drugs is an
aggravated felony]; Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. 2013) [one count of conspiracy to
commit racketeering in violation of 18 USC §1962(d) was conceded by respondent to qualify as an
aggravated felony]. An interstate jurisdictional nexus may not be necessary to find a state crime an
aggravated felony under this provision. Spacek v. Holder, 688 F.3d 536, 538-39 (8th Cir. 2012) [North Dakota
racketeering statute, N.D. Cent. Code 12.1-06.1-03 is an aggravated felony even though neither the statute,
nor defendant’s actions, included an interstate or foreign element because they are not substantive elements
of 101(a)(43)(J) which only requires an offense “described in” RICO]. But cf. Bautista v. U.S. Att’y Gen., 744
F.3d 54 (3d Cir. 2014) [disagreeing with Spacek that all “jurisdictional” elements of the cross-referenced
federal criminal laws in the aggravated felony definition can be ignored in comparing state convictions].
11. Prostitution and Slavery Offenses [INA §101(a)(43)(K)]
11.a. Relating to owning, controlling, managing or supervising a prostitution business; Prus v. Holder, 660
F.3d 144 (2d Cir. 2011) [conviction under N.Y. Penal Law §§20.00 and 230.25 for promoting prostitution in
the third degree was not categorically an aggravated felony because: (i) prostitution under the INA means
sexual intercourse and the New York law covers sexual Page 310 conduct; and (ii) the “relating to”
language modifies owning, controlling, managing or supervising but not the underlying criminal conduct];
Familia Rosario v. Holder, 655 F.3d 739 (7th Cir. 2011) [a conviction under 8 USC §1328 which prohibits
the “importation into the U.S. of any alien for the purpose of prostitution” is not categorically an “offense
that relates to the owning, controlling, managing or supervision of a prostitution business” and therefore is
not an aggravated felony];
11.b. Relating to transportation for the purpose of prostitution if committed for commercial advantage under
18 USC §§2421, 2422 or 2423. In Nijhawan, the Court suggested that whether the offense was committed
for commercial advantage or not is a “circumstance specific” inquiry that is not restricted to the elements
of the offense or the record of conviction. Nijhawan v. Holder, 557 U.S. 29, 38 (2009) [dicta]; see also
Matter of Lanferman, 25 I&N Dec. 721, 727 n.4 (BIA 2012), overruled on other grounds by Descamps v.
U.S., 570 U.S. 254 (2013). But see Gertsenshteyn v. DOJ, 544 F.3d 137, 144-45 (2d Cir. 2008); or
11.c. Holding, selling, or enticing persons into slavery or transporting, possessing, detaining or seizing
slaves. 18 USC §§1581–85 or 1588–91.
12. National Defense Offenses [INA §101(a)(43)(L)] including:
12.a. Gathering, transmitting or losing defense information [18 USC §793]; disclosing classified information
[18 USC §798]; injuring, destroying, contaminating or infecting war materials or premises [18 USC §2153];
treason [18 USC §2381]; and concealing and failing to disclose treason [18 USC §2382];
12.b. Disclosing identity or information about covert intelligence agents or undercover agents [50 USC §421
reclassified at 50 USC §3121].
13. Fraud/Deceit; Tax Evasion [INA §101(a)(43)(M)(i)]—Offenses that “involve” fraud or deceit in which the
loss to the victim or victims exceeds $10,000; and §101(a)(43)(M)(ii): An offense described in 26 USC §7201
(relating to tax evasion) in which the loss to the government exceeds $10,000. No term of imprisonment is
necessary. Levesque v. Lynch, 802 F.3d 152 (1st Cir. 2015) [rejected claim that fraud crime required term of
imprisonment].
13.a. Aggravated Felonies under Subsection (M)(i)—The Supreme Court has determined that in analyzing
whether a crime is an aggravated felony under INA §101(a)(43)(M)(i), the courts must use a categorical
approach as to whether the crime is a fraud or deceit crime and a “circumstance-specific” analysis
regarding whether “the loss to the victim or victims exceeds $10,000.” Nijhawan v. Holder, 557 U.S. 29, 38
(2009) [the loss to the victim language does not refer to an element of the fraud or deceit crime but to the
particular circumstances in which an offender committed a fraud or deceit crime]. Neither “fraud” nor
“deceit” must be elements of the crime and tax crimes are included under (M)(i), notwithstanding (M)(ii).
Kawashima v. Holder, 565 U.S. 478 (2012) [convictions for subscribing to a false tax return under 26 USC
§7206(1) and aiding and assisting in the preparation of a false tax return under 28 USC §7206(2) are
aggravated felonies notwithstanding subsection (M)(ii)]. See also Singh v. U.S. Att’y Gen., 677 F.3d 503,
508-09 (3d Cir. 2012) [“knowingly and fraudulently mak[ing] a false declaration … under penalty of
perjury” in relation to a bankruptcy proceeding under 18 USC §152(3) necessarily entails deceit and
therefore qualifies as an aggravated felony deceit offense under (M)(i) even if it falls under, but does not
qualify as, an aggravated felony perjury offense under 101(a)(43)(S)]. The government is still required to
prove the loss by clear and convincing evidence, but the cases relying on a modified categorical approach
limiting the proof to only certain documents to do so are disavowed, and the IJ can look to any evidence
“tied to the specific counts covered by the conviction” to determine the loss. Nijhawan v. Holder, 557 U.S.
29, 43 (2009) [jury did not make any finding as to the amount of loss when convicting petitioner but at
sentencing, petitioner stipulated that the loss exceeded $100 million and the judge ordered restitution of
$683 million].
Courts Finding Aggravated Felonies: Sokpa-Anku v. Lynch, 835 F.3d 793 (8th Cir. 2016) [when multi-
count fraud complaint related to virtually identical matters the amount of loss may be aggregated to reach
the $10,000 threshold]; Mowlana v. Lynch, 803 F.3d 923 (8th Cir. 2015) [“unauthorized use, transfer,
acquisition and possession” of food stamp benefits in violation of 7 USC §2024(b) is an aggravated felony
fraud]; Walker v. U.S. Att’y Gen., 783 F.3d 1226 (11th Cir. 2015) Page 311 [conviction under Fla. Stat.
§831.02 for uttering a forged instrument is categorically a fraud or deceit aggravated felony because the
statute necessarily includes a violator who “utters and publishes as true” something the violator “know[s]”
to be “false”]; Ljutica v. Holder, 588 F.3d 119, 124–26 (2d Cir. 2009) [rejected void for vagueness and rule
of lenity challenges to subsection “U” and found conviction for attempted bank fraud under 18 USC §1344
an aggravated felony]; Tian v. Holder, 576 F.3d 890, 894–96 (8th Cir. 2009) [unauthorized access to a
computer in violation of 18 USC §1030(a)(4) and company’s investigative costs that were part of
restitution established post-Nijhawan loss in excess of $10,000 Martinez v. Mukasey, 519 F.3d 532, 538–
41 (5th Cir. 2008) [bank fraud under 18 USC §1344]; Eke v. Mukasey, 512 F.3d 372, 378–81 (7th Cir.
2008) [identity theft, 730 Ill. Comp. Stat. 5/16G-15(a) and conspiracy to commit a financial crime, 720 Ill.
Comp. Stat. 5/16H-45, where the intended loss exceeded $10,000, resulted in an aggravated felony under
INA §101(a)(43)(U) (attempt or conspiracy to commit an offense described in INA §101(a)(43)); intended
loss can be used in conspiracy offenses]; Martinez v. Mukasey, 508 F.3d 255 (5th Cir. 2007) [insurance
fraud, Tex. Penal Code §35.02(a), where defendant paid only $5,733.68 of an $11,467.36 restitution order
for which he was jointly and severally liable]; Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. 2007) [Cal.
Penal Code §532 concerning fraud in excess of $10,000 despite paying down the loss to victim post-plea];
Iysheh v. Gonzales, 437 F.3d 613 (7th Cir. 2006) [a person with a corrected judgment identifying his
offense as a non–aggravated felony, 18 USC §2313(a) (sale or receipt of stolen vehicles), but who
pleaded guilty to a count that included fraud did commit an aggravated felony when the plea agreement,
superseding indictment, and judgment were considered together]; Ferreira v. Ashcroft, 390 F.3d 1091 (9th
Cir. 2004) [Cal. Welf. & Instit. Code §10980(c)(2), submitting false statements to obtain aid, is an
aggravated felony; using modified categorical approach, amount stated as restitution in the plea
agreement exceeded $10,000]; Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001) [misapplication of
bank funds, 18 USC §656]; Beshli v. DHS, 272 F.Supp.2d 514, 522–25 (E.D. Pa. 2003) [conspiracy under
18 USC §1029(b)(2) to traffic in and use unauthorized access devices under §1029(a) where he pleaded
guilty to a count in the indictment for losses to the victims in excess of $10,000].
Courts Not Finding Aggravated Felonies: Lifeng Wang v. Rodriguez 830 F.3d 958 (2016) [conviction under
18 USC §2320 for trafficking in counterfeit goods permits a conviction for mistake or confusion and
therefore does not necessarily involve fraud or deceit]; Akinsade v. Holder, 678 F.3d 138 (2d Cir. 2012)
[DHS failed to prove under modified categorical approach that respondent’s embezzlement conviction
under 18 USC §656 included an intent to defraud as opposed to an intent to injure]; Omari v. Gonzales,
419 F.3d 303 (5th Cir. 2005) [conspiracy under 18 USC §371 to violate 18 USC §2314, which is a divisible
statute, removal order was vacated because under the modified categorical approach the documents in
evidence suggested a nonfraud crime of possession of illegal airline tickets]; Chang v. INS, 307 F.3d 1185,
1189–92 (9th Cir. 2002) [distinguishing Khalayleh because it involved a scheme to defraud and not, as
here, a discrete fraud based on the plea agreement to cashing a counterfeit $650.30 check]; Valansi v.
Ashcroft, 278 F.3d 203 (3d Cir. 2002) [distinguishing Moore; 18 USC §656, embezzlement, is not
necessarily a fraud or deceit crime because a person may be convicted if he has the intent to injure or
defraud].
13.b. Amount of Loss—The actual amount of the loss that the defendant was convicted of and not the
amount of restitution, or other losses, governs whether it is an aggravated felony. Doe v. U.S. Att’y Gen.,
659 F.3d 266, 274-77 (3d Cir. 2011) [aiding and abetting wire fraud despite plea to only one count for less
than $10,000 was nevertheless an aggravated felony because the plea was to aiding and abetting the
whole criminal scheme where the loss was $47,000]; Tian v. Holder, 576 F.3d 890, 894–96 (8th Cir. 2009)
[in conviction for unauthorized access to a computer in violation of 18 USC §1030(a)(4) the loss was
directly tied to the conviction because it was investigative costs in excess of $10,000 arising out of
unauthorized computer use]; Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002) [in calculating $10,000 loss
court considered not only count that respondent pleaded to for a $9,308 bad check but also losses from
dismissed counts that were part of the same scheme because count pleaded to alluded to scheme and
because defendant was ordered to pay restitution of $24,000]. But see Obasohan v. U.S. Att’y Gen., 479
F.3d 785 (11th Cir. 2007) [requiring clear, unequivocal and convincing evidence that respondent was
convicted of an aggravated felony including that the loss to the victim exceeded Page 312 $10,000;
restitution order of $37,000 was insufficient because it was based upon other losses for which respondent
was not charged or convicted]; Alaka v. U.S. Att’y Gen., 456 F.3d 88, 104–09 (3d Cir. 2006) [bank fraud
under 18 USC §1344 and aiding and abetting were not aggravated felonies because the loss for which
she was convicted was not in excess of $10,000; IJ erroneously considered the amount of intended loss
for all charges rather than the single count of conviction]; Chang v. INS, 307 F.3d 1185 (9th Cir. 2002)
[reliance for the amount of the loss on information in a presentence report is improper at least where the
information is contradicted by explicit language in the plea agreement]; Zhang v. U.S., 543 F.Supp.2d 175,
181–83 (E.D.N.Y. 2008) [restitution in excess of $10,000 does not make mail fraud an aggravated felony
where restitution unrelated to count that was the basis for the plea]. The amount of loss must be related to
a plea to an aggravated felony and not a charge that was dropped. Martin v. Gantner, 443 F.Supp.2d 367,
371 (E.D.N.Y. 2006) [restitution was ordered for larceny that was charged but was not pleaded to because
naturalization applicant only pleaded to falsification of business records, which, unlike larceny, is not an
aggravated felony]. But the amount of loss may be aggregated where the complaint has multiple-counts
that arise out of virtually identical facts. Sokpa-Anku v. Lynch, 835 F.3d 793 (8th Cir. 2016) [when multi-
count fraud complaint related to virtually identical matters the amount of loss may be aggregated to reach
the $10,000 threshold]. And the government must prove the “actual” loss to a victim or victims by “clear
and convincing” evidence. Singh v. U.S. Att’y Gen., 677 F.3d 503, 510-18 (3d Cir. 2012) [where there was
a plea agreement for restitution of $54,000 but no showing that it was pursuant to Mandatory Victims
Restitution Act and the facts indicate no actual loss, no aggravated felony]. But where the actual loss can
be established to be over $10,000, manipulating the sentence may be insufficient. Nanje v. Chavez, 836
F.3d 131 (1st Cir. 2016) [post-conviction revision of loss to under $10,000 did not avoid the aggravated
felony bar to naturalization because such efforts are “attempts at revisionist history” and court rejected the
idea that “non-essential findings in state court proceedings [should be give] conclusive weight” rather than
treated as “but on circumstance to be considered”]; Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2007)
[where amended restitution order was for $9,999 but actual amount of loss was in excess of $10,000 it
was an aggravated felony]. Loss can also include “intended loss” if the defendant is charged with attempt
or conspiracy because aggravated felonies also encompass attempts and conspiracies under INA §101(a)
(43)(U). Eke v. Mukasey, 512 F.3d 372, 378–81 (7th Cir. 2008) [where petitioner conspired to obtain a car
through identity theft, the intended loss was in excess of $10,000 and therefore actionable under INA
§§101(a)(43)(M)(i) & (U)]. But see Singh v. U.S. Att’y Gen., 677 F.3d 503, 518-19 (3d Cir. 2012) [where
petitioner was not charged under subsection “U” for attempt or conspiracy, the government could not now
rely on it to prove loss].
(1) Proving the Amount of Loss—The Supreme Court has determined that the modified categorical
approach is not the method to prove the amount of loss to the victim under (M)(i) or to the government
under (M)(ii). In Nijhawan v. Holder, 557 U.S. 29, 37-41 (2009), the Court relied on a restitution order
and a stipulation at sentencing and held that proof of loss in excess of $10,000 is established through
a circumstance-specific inquiry and is not a matter limited to the categorical/modified categorical
approach. The BIA has also held that the categorical and modified categorical approaches only apply
to the elements of the state or federal offense and do not apply to matters that are not part of the
elements of the crime, but are included in the immigration statute, such as loss to the victim. Matter of
Babaisakov, 24 I&N Dec. 306 (BIA 2007). As these nonelements are not part of the
categorical/modified categorical analysis, their proof is not limited to the “record of conviction” as in
Shepard but may include documents or testimony allowed in immigration matters that are “tied to the
specific counts covered by the conviction.” Nijhawan v. Holder, 557 U.S. 29, 43 (2009); see also Matter
of Babaisakov, 24 I&N Dec. 306, 319–21 (BIA 2007) [restitution orders, presentence reports, and
admissions during plea colloquies may be used to prove loss as well as “any evidence, otherwise
admissible in removal proceedings, including witness testimony” and “testimonial admissions of the
respondent made during the removal hearing”]. See generally Kaplun v. U.S. Att’y Gen., 602 F.3d 260,
266 (3d Cir. 2010) [post-Nijhawan finding that review of PSR was permissible to establish loss in
excess of $10,000]; Hamilton v. Holder, 584 F.3d 1284 (10th Cir. 2009) [same and therefore ineligibility
for cancellation]; Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008) [can use presentence
report]; Page 313 Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) [following Matter of Babaisakovand
reinterpreting its own precedent post–Brand X, the court concluded the BIA could rely on the
presentence investigation report to establish whether crime is a CIMT because “when deciding how to
classify convictions under criteria that go beyond the criminal charge–such as the amount of the
victim’s loss, or whether the crime is one of ‘moral turpitude’ the agency has discretion to consider
evidence beyond the charging papers and judgment of conviction”]. See also Martinez v. Mukasey, 508
F.3d 255, 259–60 (5th Cir. 2007) [may rely on restitution order to find the amount of loss where the
plea agreement states the defendant agreed to an amount in excess of $10,000 and recognizes it as a
condition of probation; it is irrelevant that the defendant paid only $5,733.68 of an $11,467.36
restitution order for which he was jointly and severally liable because it is the loss to the victim and not
the payment of the defendant that counts]; De Vega v. Gonzales, 503 F.3d 45, 49–50 (1st Cir. 2007)
[where defendant appeared to have pleaded to both a fraud (false representation, Mass. Gen. Laws
ch.18 §5B) and a larceny charge and nothing in the record suggested the loss was only for the larceny,
the court found that the required restitution resulted in an aggravated felony]; James v. Gonzales, 464
F.3d 505, 510–14 (5th Cir. 2006) [where respondent pleaded guilty to one count of bank fraud resulting
in a loss of $9,500 but restitution exceeded $10,000, it was an aggravated felony because the
indictment alleged a scheme to defraud in excess of $10,000 and the PSR also found the intended
loss was in excess of $10,000]; Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. 2004) [Cal. Welf. & Inst.
Code §10980(c)(2), the court found that the amount stated as restitution in the plea agreement
exceeded $10,000]; Nanje v. Chavez, 134 F.Supp.3d 544, 554-56 (D. Mass. 2015) [pursuant to
Nijhawan relied on Statement of Probable Cause to establish amount of $10,000 and rejected post-
conviction revision in sentence under $10,000 to avoid the aggravated felony bar to naturalization].
13.c. Government as Victim—INA §101(a)(43)(M)(i) applies to the government as well as to individuals and
corporations. Kawashima v. Holder, 565 U.S. 478 (2012) [convictions for subscribing to a false tax return
under 26 USC §7206(1) and aiding and assisting in the preparation of a false tax return under 28 USC
§7206(2) are aggravated felonies under (M)(i) notwithstanding subsection (M)(ii)].
13.d. Attempt Crimes—Actual loss of $10,000 not necessary because it can be viewed as an “attempt”
crime under INA §101(a)(43)(U). Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) [false claim with intent to
defraud arising from unsuccessful scheme to obtain $15,000 from insurance company was “attempted”
aggravated felony under INA §§101(a)(43)(M)(i) & (U)]. However, to be found deportable as an
aggravated felon under the attempt provision, the person must be charged under section “U” because “U”
is not a necessarily included offense under subsection “M” for fraud. Singh v. U.S. Att’y Gen.,677 F.3d
503, 518-19 (3d Cir. 2012) [concluding that when Congress enacted (M)(i), the plain meaning of loss
referred to actual, not merely intended, loss and that the government could not now sua sponte charge
petitioner with subsection “U”]; Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009) [reversed finding of removal
where person pleaded guilty to bank fraud and aggravated identity theft but there was no actual loss, she
was never charged with attempt under “U,” and the lesser included offenses applicable to federal criminal
law under Fed. R. Crim. P. 31(c) do not apply in immigration proceedings]. See also Sui v. INS, 250 F.3d
105 (2d Cir. 2001) [adopting the 2-prong test in Onyido but finding that a conviction for possession of
counterfeit securities with an intent to deceive does not necessarily constitute an attempt to pass those
securities and cause a loss].
13.e. Aiding and Abetting—Although aiding and abetting is not included under INA §101(a)(43)(U), aiding
and abetting can be an aggravated felony where underlying crime is an aggravated felony. Kawashima v.
Holder, 565 U.S. 478 (2012) [conviction for aiding and assisting in the preparation of a false tax return
under 28 USC §7206(2) is an aggravated felony under (M)(i)]; Doe v. U.S. Att’y Gen., 659 F.3d 266, 274-
77 (3d Cir. 2011) [aiding and abetting wire fraud despite plea to only one count for less than $10,000 was
nevertheless an aggravated felony because the plea was to aiding and abetting the whole criminal
scheme where the loss was $47,000]; James v. Gonzales, 464 F.3d 505, 508–10 (5th Cir. 2006) [aiding
and abetting bank fraud under 18 USC §§2 & 1344]. See also Gonzales v. Duenas-Alvarez, 549 U.S. 183
(2007) [Cal. Veh. Code §10851(a), Page 314 a vehicle-theft statute, includes aiding and abetting under
the “generic approach” first addressed in Taylor andis therefore an aggravated felony].
13.f. Hybrid Crimes—Singh v. U.S. Att’y Gen., 677 F.3d 503, 508-09 (3d Cir. 2012) [“knowingly and
fraudulently mak[ing] a false declaration … under penalty of perjury” in relation to a bankruptcy
proceeding under 18 USC §152(3) necessarily entails deceit and therefore qualifies as an aggravated
felony deceit offense under (M)(i) even if it falls under, but does not qualify as, an aggravated felony
perjury offense under 101(a)(43)(S)]; Magasouba v. Mukasey, 543 F.3d 13, 15 (1st Cir. 2008) [following
Bobb and finding that both the subsections for aggravated felonies for fraud and counterfeiting did not
have to be satisfied where selling pirated copies of DVDs and CDs in violation of Rhode Island law, R.I.
Gen. Laws §11-17-13(c)(1) is “related to” crimes designated under subsection R]; Bobb v. U.S. Att’y Gen.,
458 F.3d 213 (3d Cir. 2006) [18 USC §510(a)(2), passing, uttering, and publishing a U.S. Treasury check
in an amount of $13,277 is an aggravated felony under §101(a)(43)(M)(i) even if it is also, under §101(a)
(43)(R), a crime related to forgery]; Valansi v. Ashcroft, 278 F.3d 203, 209–10 (3d Cir. 2002) [holding that
petitioner’s conviction for embezzlement which could be considered a theft offense did not mean that she
could not be charged for an aggravated-felony fraud].
13.g. Fraud and Theft Crimes Distinguished—The BIA clarified Matter of V-Z-S- to distinguish theft crimes
from fraud finding that theft crimes involve taking property without consent and fraud and deceit crimes
under INA §101(a)(43)(M)(i) involve taking property with consent that has been fraudulently obtained.
Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008) [IJ’s determination that R.I. Gen. Laws 40-6-15
concerning welfare fraud was a theft crime was in error]. See also Vassell v. U.S. Att’y Gen., 839 F.3d
1352 (11th Cir. 2016) [relying on distinction between theft and fraud in Garcia-Madruga and finding that
Georgia Code §16-8-2 “theft by taking” statute is not categorically a theft offense because it does not
require taking without consent]; Martinez v. Mukasey, 519 F.3d 532, 538–41 (5th Cir. 2008) [18 USC
§1344 while a fraud crime is not a theft crime]; Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005). One
court had found that a theft offense that is also an offense involving fraud or deceit, is an aggravated
felony only if the conviction qualifies under the definition of both, but later repudiated that reasoning as
inconsistent with the plain meaning of the statute. Al-Sharif v. USCIS, 734 F.3d 207 (3d Cir. 2013 (en
banc) overruling Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004)].
13.h. Crimes Under Subsection (M)(ii) [INA §101(a)(43)(M)(ii), for income tax evasion under IRC §7201
where the revenue loss to the government exceeds $10,000]: Tax crimes are included under (M)(i),
notwithstanding (M)(ii). Kawashima v. Holder, 565 U.S. 478 (2012) [convictions for subscribing to a false
tax return under 26 USC §7206(1) and aiding and assisting in the preparation of a false tax return under
28 USC §7206(2) are aggravated felonies notwithstanding subsection (M)(ii)]; Evangelista v. Ashcroft, 359
F.3d 145, 149–53 (2d Cir. 2004) [IRC §7201 where amount exceeds $300,000, is an aggravated felony
whether conviction was for “defeating” or “evading” taxes].
14. Alien smuggling offenses under INA §274(a)(1)(A) or (a)(2), 8 USC §1324(a)(1)(A) or (a)(2)—INA
§101(a)(43)(N) except in the case of a first offense where the person has shown he committed the offense for
the purpose of assisting, abetting or aiding a spouse, parent, or child. Congress eliminated the “for gain” or
commercial purposes requirement while allowing this exception. H.R. Conf. Rep. No. 828, 104th Cong., 2d
Sess. at 223. Matter of Alvarado-Alvina, 22 I&N Dec. 718 (BIA 1999) [no aggravated felony under INA
§101(a)(43)(N) if convicted of alien smuggling under §275]. Accord Rivera-Sanchez v. Reno, 198 F.3d 545
(5th Cir. 1999). Includes misdemeanors as well as felonies. Biskupski v. U.S. Att’y Gen., 503 F.3d 274, 279–
81 (3d Cir. 2007) [conviction under 8 USC §1324(a)(2) for misdemeanor smuggling is an aggravated felony].
Also covers persons encouraging and inducing an alien to reside in U.S., Sena v. Gonzales, 294 F.3d 465 (3d
Cir. 2002); Castro-Espinosa v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001), transporting, Matter of Ruiz-Romero,
22 I&N Dec. 486 (BIA 1999), aff’d, Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000) [transporting under
§274(a)(1)(A)(ii)]; Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002) [conspiracy to transport and harbor];
U.S. v. Galinda-Gallegos, 244 F.3d 728, 733 (9th Cir. 2001) and not solely smuggling. Although “mere
employment” is a defense to harboring and smuggling charges, a least one court has found that it was not
reversible error for the district court to deny a jury instruction on mere employment. U.S. v. Khanani, 502 F.3d
1281, 1285–89 (11th Cir. 2007) Page 315 [failure to give mere employment jury instruction did not seriously
impair the defendant’s ability to conduct their defense because the instructions as given already required
proof beyond mere employment]. The family exception under the statute, in the view of one circuit in a
sentencing case, is not an element of the offense and therefore, following Nijhawan, permits the use of extra-
record facts to prove the exception. U.S. v. Guzman-Mata, 579 F.3d 1065, 1069–75 (9th Cir. 2009). For
additional information concerning transporting or harboring see in this chapter Section VIII.D (p.396), infra.
15. An offense described in INA §§275(a) or 276 committed by a person who was previously deported for an
aggravated felony—INA §101(a)(43)(O). Matter of Alvarado-Alvina, 22 I&N Dec. 718 (BIA 1999) [person
convicted under §275(a) who was not previously deported is not an aggravated felon under INA §101(a)(43)
(O)]; Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. 1999) [same].
16. Falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of
18 USC §1543, or as described in the document fraud section under 18 USC §1546(a) and the term of
imprisonment is at least 12 months, unless it is a first offense and the person affirmatively shows she
committed the offense for the purpose of assisting, abetting, or aiding her spouse, child, or parent. INA
§101(a)(43)(P)
17. An offense relating to a failure to appear by a defendant for service of sentence [INA §101(a)(43)(Q)]
if the underlying offense is punishable by imprisonment for a term of 5 years or more. Matter of Adeniye, 26
I&N Dec. 726 (BIA 2016) [BIA rejected respondent’s argument that the sentence he was actually given
should be utilized to determine whether he was an aggravated felon under INA §101(a)(43)(Q) because the
statute looks to whether the underlying offense is “punishable by” a term of imprisonment of 5 years or more
and therefore the IJ looks to the maximum sentence that could have been imposed and not the actual
sentence imposed].
18. An offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicle with
altered ID numbers [INA §101(a)(43)(R)] where the term of imprisonment is at least one year.
18.a. Forgery—The generic definition of forgery is the: (a) false making or material alterations; (b) with intent
to defraud; (c) of a writing which, if genuine, might be of legal efficacy or the foundation of legal liability.
Alvarez v. Lynch, 828 F.3d 288 (4th Cir. 2016) [a conviction under Va. Code Ann. §18.2-168, Virginia’s
Public Records Forgery statute is an aggravated felony as one commits forgery only where a document is
invalid or falsely executed and not genuinely executed but containing false information]; Williams v. U.S.
Att’y Gen., 880 F.3d 100 (3d Cir. 2018) [conviction under Georgia’s forgery statute, Ga. Code Ann. §16-9-
1(a) is an offense “relating to” forgery and the court relies on a “looser categorical approach” given the
“relating to” language to determine whether there is “a logical or casual connection” and not a “precise
match” to the federal definition]; U.S. v. Martinez-Gonzalez, 663 F.3d 1305, 1308-11 (11th Cir. 2011)
[conviction under Ala. Code §13A-9-6 for two counts of possession of forged instruments (LPR and SS
cards) is a crime related to forgery]; Morales-Alegria v. Gonzales, 449 F.3d 1051 (9th Cir. 2006) [forgery,
Cal. Penal Code §476, is consistent with the generic definition of the crime and is an aggravated felony];
Richards v. Ashcroft, 400 F.3d 125, 127–30 (2d Cir. 2005) [2nd degree forgery, Conn. Gen. Stat. §53a-
139, is an offense “relating to” forgery because it includes possession of forged instruments]; Drakes v.
Zimski, 240 F.3d 246 (3d Cir. 2001) [2nd degree forgery, 11 Del. Code §861, is an offense “relating to”
forgery]. But see Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008) [forgery under Cal. Penal Code
§475(c) was not an aggravated felony because it permits a conviction for the use of a genuine document
fraudulently, and there was no evidence in the record for the modified approach to indicate otherwise];
18.b. Counterfeiting—Rodriguez-Valencia v. Holder, 652 F.3d 1157 (9th Cir. 2011) [conviction under Cal.
Penal Code 350(a)(2) for knowingly possessing for sale more than 1,000 articles bearing a counterfeit
trademark]; Nwagbo v. Holder, 571 F.3d 508 (6th Cir. 2009) [conspiracy to violate 18 USC §472 was
related to counterfeiting even if the overt act of counterfeiting was completed before petitioner joined the
conspiracy]; Magasouba v. Mukasey, 543 F.3d 13, 14–15 (1st Cir. 2008) [selling pirated DVDs and CDs in
violation of R.I. Gen. Laws §11-17-13(c)(1) is “related to” crimes designated under subsection R]; Young
Wong Park v. U.S. Att’y Gen., 472 F.3d 66, 71–73 (3d Cir. 2007) [“knowingly using a counterfeit mark” and
trafficking Page 316 in goods and services with a counterfeit mark, 18 USC §2320, is a crime “relating to”
counterfeiting]; Kamagate v. Ashcroft, 385 F.3d 144, 151–56 (2d Cir. 2004) [18 USC §371, conspiracy to
violate 18 USC §513(a) for making, uttering, or possessing counterfeit securities intending to deceive
others is a crime “related to” counterfeiting; declining to construe “relating to” narrowly]; Albillo-Figueroa v.
INS, 221 F.3d 1070 (9th Cir. 2000) [possession of counterfeit obligations is a crime “relating to”
counterfeiting]; Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) [2nd degree forgery, N.Y. Penal Law
§170.10(2)].
18.c. Commercial Bribery—Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010) [limiting “relating to”
language to find that bribery of a public official is not commercial bribery and therefore not an aggravated
felony].
18.d. Overlapping Aggravated Felonies—At least one circuit has determined that even if a forgery crime is
not an aggravated felony because the person was not sentenced to one year, s/he may be charged under
the fraud aggravated felony section. Bobb v. U.S. Att’y Gen., 458 F.3d 213 (3d Cir. 2006) [18 USC §510(a)
(2) for passing, uttering, and publishing a U.S. Treasury check in an amount of $13,277, is an aggravated
felony under §101(a)(43)(M)(i) even if it is also, under §101(a)(43)(R), a crime related to forgery]. Another
circuit has agreed as to counterfeiting and fraud. Magasouba v. Mukasey, 543 F.3d 13, 15 (1st Cir. 2008)
[following Bobb and finding that both subsections for aggravated felonies for fraud and counterfeiting did
not have to be satisfied where selling pirated copies of DVDs and CDs in violation of R.I. Gen. Laws §11-
17-13(c)(1) is “related to” crimes designated under subsection R].
19. An offense relating to obstruction of justice, perjury, or subornation of perjury or bribery of a witness
for which the term of imprisonment is at least one year [INA §101(a)(43)(S)].
19.a. Perjury—The BIA has determined that the generic definition of perjury under §101(a)(43)(S)
incorporates both written and oral perjury and “requires that an offender made a material false statement
knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.”
Matter of Alvarado, 26 I&N Dec. 895, 901-902 (BIA 2016) [on remand from the Ninth Circuit reaffirming
that a conviction under Cal. Penal Code §118(a) is an aggravated felony and relying on a generic
definition of perjury instead of 18 USC §1621]; Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001)
[Cal. Penal Code §118(a) is an aggravated felony because it is essentially the same as the federal perjury
statute, 18 USC §1621]; Mobin v. Taylor, 598 F.Supp.2d 777 (E.D. Va. 2009) [Cal. Health & Safety Code
§44059, making a false statement on an application for a technician’s license, contains the same
elements under the categorical approach as the second part of the federal perjury statute 18 USC
§1621(2); not necessary that the conviction be for perjury in a judicial proceeding to be considered an
aggravated felony].
19.b. Obstruction—In Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012) the Board expanded its
construction of the statute in Matter of Espinoza-Gonzalez, 22 I&N Dec. 889, 893-94 (BIA 1999) (en banc)
and determined that “relating to a crime of obstruction” is “an affirmative and intentional attempt,
motivated by a specific intent, to interfere with the process of justice” and that the “existence of a [judicial]
proceeding is not an essential element” to find obstruction. Valenzuela Gallardo, supra, at 841 [finding
that violation of Cal. Penal Code §32 for accessory after the fact is a crime relating to obstruction even if
no criminal investigation or judicial proceeding exists and rejecting under Brand X the Ninth Circuit’s
interpretation in Trung Thanh Hoang]. But the 9th Circuit reversed Valenzuela Gallardo under Step 1 of
Chevron, Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) [invoking the doctrine of
constitutional avoidance at the Chevron Step 1 stage, the court reversed the agency’s interpretation of
INA §101(a)(43)(S) because its interpretation that the statute applies to interfering in the “process of
justice” is void for vagueness]. In light of the 9th Circuit’s reversal, the 7th circuit refused to recognize
Matter of Valenzuela Gallardo and determined that Illinois obstruction of justice under 720 Ill. Comp. Stat.
5/31-4 is not categorically an aggravated felony because it does not require interference with the
proceedings of a tribunal. Victoria-Faustino v. Sessions, 865 F.3d 869, 875-76 (7th Cir. 2017).
The following are also considered obstruction of justice: Accessory after the fact under 18 USC §3 is an
offense related to obstruction. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997); accord U.S. v.
Gamboa-Garcia, 620 F.3d 546, 549-50 (5th Cir. 2010) [equivalent offense under Idaho Code §18-205].
But see Flores v. U.S. Att’y Gen., 856 F.3d 280, 285-97 (3d Cir. 2017) Page 317 [despite broad reading of
the “relating to” provision a conviction for accessory after the fact under S.C. Code Ann. §16-1-55 is not
an aggravated felony]. Criminal contempt under 18 USC §401(3), which punishes disobedience of a
court order, Alwan v. Ashcroft, 388 F.3d 507, 513–15 (5th Cir. 2004) [18 USC §1503(a) applicable to
define obstruction of justice]. Failure to appear under 18 USC §3146, Renteria-Morales v. Mukasey, 551
F.3d 1076, 1083–86 (9th Cir. 2008) [following definition of obstruction in Matter of Espinoza-Gonzalez].
Tampering with physical evidence, Denis v. U.S. Att’y Gen., 633 F.3d 201, 206, 206-13 (3d Cir. 2011)
[under NYPL §215.40(2)]. Witness tampering, Armenta-Lagunas v. Holder, 724 F.3d 1019 (8th Cir. 2013)
[Neb. Rev. Stat. §28-919(1)(c), (d) for witness tampering]; Higgins v. Holder, 677 F.3d 97 (2d Cir. 2012)
[witness tampering under Conn. Gen. Stat. §53a-151]. But see Matter of Espinoza-Gonzalez, 22 I&N Dec.
889 (BIA 1999) [establishing criteria for obstruction but finding that misprision of a felony under 18 USC
§4 is not obstruction]; Victoria-Faustino v. Sessions, 865 F.3d 869 (7th Cir. 2017) [conviction under 720 Ill.
Comp. Stat. 5/31-4 called obstruction of justice is not an aggravated felony because it categorically does
not require interference with the proceedings of a tribunal]; Trung Thanh Hoang v. Holder, 641 F.3d 1157
(9th Cir. 2011) [misdemeanor rendering criminal assistance in the second degree under Washington Rev.
Code §9A.76.080 is not obstruction]; Salazar-Luviano v. Mukasey, 551 F.3d 857 (9th Cir. 2008) [aiding
and abetting escape from custody is not an aggravated felony because 18 USC §751 does not fall within
the federal definition of obstruction under 18 USC §§1501-21].
20. An offense relating to a failure to appear before a court pursuant to court order [INA §101(a)(43)(T)]
to answer or disprove a felony charge for which a sentence of 2 years imprisonment or more may be
imposed. Under BIA law, the categorical approach applies to decide if the offense relates to a failure to
appear before a court, but the circumstance-specific approach applies to determine if failure to appear was
(1) pursuant to a court order (2) to answer to or dispose of a charge of a felony and (3) for which a sentence
of 2 years imprisonment or more may be imposed. Matter of Garza-Olivares, 26 I&N Dec. 736 (BIA 2016)
[respondent’s failure to appear under 18 USC §1346(a)(1) and 3146(b)(1)(A)(ii) is categorically a failure to
appear before a court under the circumstance-specific approach is “pursuant to a court order;” remanding the
remainder of the case under the circumstance-specific approach]. But see Renteria-Morales v. Mukasey, 551
F.3d 1076, 1083–86 (9th Cir. 2008) [applying the categorical approach to all components of 101(a)(43)(T),
the court found that 18 USC §3146 is not an aggravated felony because it is broader than subsection “T”];
Barnaby v. Reno, 142 F.Supp.2d 277 (D. Conn. 2001) [Conn. Gen. Stat. §53a-172 is not an aggravated
felony because it permits a conviction if a party fails to appear after being “legally called” and does not
require that it be pursuant to “court order”].
21. An attempt to commit any of the above offenses [INA §101(a)(43)(U), 8 USC §1101(a)(43)(U)]—Matter
of Onyido, 22 I&N Dec. 552 (BIA 1999) [false claim with intent to defraud arising from unsuccessful scheme
to obtain $15,000 from insurance company was “attempt” under INA §§101(a)(43)(M)(i) & (U)].To be found
deportable as an aggravated felon under the attempt provision, the person must be charged under section
“U” because “U” is not a necessarily included offense under subsection “M” for fraud. Pierre v. Holder, 588
F.3d 767 (2d Cir. 2009) [reversed finding of removal where person pleaded guilty to bank fraud and
aggravated identity theft but there was no actual loss, she was never charged with attempt under “U,” and the
lesser included offenses applicable to federal criminal law under Fed. R. Crim. P. 31(c) do not apply in
immigration proceedings]. In Sui v. INS, 250 F.3d 105, 115 (2d Cir. 2001), the court clarified the attempt
provision as stated in Onyido to require the “presence of criminal intent and the completion of a substantial
step toward committing the crime.” In Sui, the court found that conviction for possession of counterfeit
securities with intent to deceive does not necessarily constitute an attempt to pass the securities and cause a
loss in excess of $10,000, and the court vacated the order of removal. U.S. v. Martinez-Garcia, 268 F.3d 460,
465–66 (7th Cir. 2001), followed Sui in establishing a generic approach to “attempt” based on common law
and the Model Penal Code and required both “intent” and “a substantial step toward completion of the crime”
before finding that the defendant had committed attempted theft. An attempt may arise from a statute that
includes intent to commit an offense that would be an aggravated felony. U.S. v. Venzor-Granillo, 668 F.3d
1224, 1232 (10th Cir. 2012) [trespass under Colo. Rev. Stat. §18-4-502 is “theft” under INA §§101(a)(43)(M)
and (U) where offense requires entry into vehicle with intent to commit a crime therein and record of
conviction Page 318 showed intended crime was generic “theft” offense]; U.S. v. Sanchez, 667 F.3d 555,
559-66 (5th Cir. 2012) [using Model Penal Code standard and found that attempted sexual assault of a child
in violation of Tex. Penal Code §§22.011(a)(2) and (c)(1) is a COV]; Bunty Ngaeth v. Mukasey, 545 F.3d 796
(9th Cir. 2008) [burglary under Cal. Penal Code §459 where the criminal act was for entering a locked vehicle
with the intent to commit theft, was an attempted theft offense for purposes of the aggravated felony
deposition]; see also Garcia v. Holder, 756 F.3d 839, 844-46 (5th Cir. 2014) [unauthorized entry of a vehicle
with intent to commit a theft therein in violation of N.M. Stat. Ann. §30-16-3(B) is an “attempt” aggravated
felony under modified categorical approach]; but see Rendon v. Holder, 764 F.3d 1077, 1088-89 (9th Cir.
2015) [finding that Cal. Penal Code §459 was not an aggravated felony under attempt provision]; Hernandez-
Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) [distinguishing Ngaeth in the context of entering a commercial
building which, by itself, does not constitute a substantial step to commit commercial burglary in violation of
Cal. Penal Code §459]; Vaca-Tellez v. Mukasey, 540 F.3d 665, 668–72 (7th Cir. 2008) [same in regard to
burglary of an automobile under 720 ILCS 5/19-1(a)]. Impossibility is not a defense to attempt. Hernandez-
Alvarez v. Gonzales, 432 F.3d 763, 766 (7th Cir. 2005) [impossibility of completing an attempted indecent
solicitation of a minor, where the person solicited was a police officer is not a defense]. See also Ljutica v.
Holder, 588 F.3d 119, 124–26 (2d Cir. 2009) [rejected void for vagueness and rule of lenity challenges to
subsection “U” and found conviction for attempted bank fraud under 18 USC §1344 an aggravated felony].
An attempt crime may be an aggravated felony even if the underlying offense is not. Compare Matter of
Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018) [distinguishing Quijada-Aguilar and finding that attempted
voluntary manslaughter in violation of Cal. Penal Code §§192(a), 664 is a COV even if voluntary
manslaughter under §192(a) is not because attempted voluntary manslaughter always requires specific intent
to cause the death of another] with Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305-07 (9th Cir. 2015) [Cal.
Penal Code §192(a) for voluntary manslaughter is not categorically a COV because a person may be
convicted for mere recklessness].
22. A conspiracy to commit any of the above offenses [8 USC §1101(a)(43)(U)]
22.a. In General—For a conspiracy provision to be the basis for an aggravated felony, the underlying state
statute must require an overt act for a conviction. Villavicencio v. Sessions, 879 F.3d 941, 946 (9th Cir.
2018) [following Garcia-Santana and holding that Nev. Rev. Stat. §199.480 regarding conviction for
conspiracy is not categorically an aggravated felony because no overt act is required]; U.S. v. Garcia-
Santana, 774 F.3d 528, 534 (9th Cir. 2014) [post-Descamps and Moncrieffe, the court rejected Matter of
Richardson, infra and found that a person may not be convicted of an aggravated felony for conspiracy
unless the underlying state statute for conspiracy requires an overt act (and Nevada’s conspiracy statute
did not)because the vast majority of state statutes (as does the federal conspiracy statute 18 USC §371)
establish that the generic definition of conspiracy requires the commission of an overt act]; Marinelarena
v. Sessions, 869 F.3d 780 (9th Cir. 2017) [California’s conspiracy statute, Cal. Penal Code §182(a)(1) was
both overbroad and divisible and under the modified categorical approach it was unclear whether
respondent’s conviction was based upon transportation of a scheduled drug because the underlying target
crime of the conspiracy Cal. Health & Safety Code §11352 was itself overbroad and divisible]; But see
Etienne v. Lynch, 813 F.3d 135, 142-45 (4th Cir. 2015) [generic definition of conspiracy does not require
an overt act and therefore respondent’s conviction for conspiracy to violate the controlled dangerous
substances law of the State of Maryland is an aggravated felony].Pre-Descamps and Moncrieffe some
circuits have broadly defined the conspiracy provision. Nwagbo v. Holder, 571 F.3d 508 (6th Cir. 2009)
[conspiracy to violate 18 USC §472 was related to counterfeiting even if the overt act of counterfeiting was
completed before petitioner joined the conspiracy]; Eke v. Mukasey, 512 F.3d 372, 378–81 (7th Cir. 2008)
[loss can include “intended loss;” where petitioner conspired to obtain a car through identity theft, the
intended loss was in excess of $10,000 and therefore actionable under INA §§101(a)(43)(M)(i) & (U)];
Conteh v. Gonzales, 461 F.3d 45, 54–57 (1st Cir. 2006) [conspiracy under 18 USC §371, the government
was not required to demonstrate that the conspiracy involved every element of the substantive offense
enumerated under the aggravated felony statute but was only required to show that the substantive crime
that was the conspiratorial objective was an aggravated felony]; Kamagate v. Ashcroft, 385 F.3d 144,
151–56 (2d Cir. 2004) [18 USC §371 for conspiracy to violate 18 USC §513(a) for making, uttering, or
possessing counterfeit Page 319 securities intending to deceive others is a crime “related to”
counterfeiting]. But see Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005) [vacating removal order where
conviction of conspiracy under 18 USC §371 to violate 18 USC §2314 is divisible and under the modified
categorical approach, the only documents in evidence suggested a nonfraud crime of possession of illegal
airline tickets].
22.b. BIA View of Conspiracy—The Board first determined that deportation under the conspiracy provision
requires clear and convincing evidence that respondent was: (1) convicted of engaging in a conspiracy
within the meaning of INA §101(a)(43)(U) and that (2) at least one of the acts that was the object of the
conspiracy was an offense involving the aggravated felony; and (3) any other aspect of the ground of
deportation occurred or was contemplated e.g., loss to the victim exceeded $10,000. Matter of S-I-K-, 24
I&N Dec. 324 (BIA 2007) [removal upheld where respondent was convicted of conspiracy, the object of
the conspiracy was a fraud crime, and the record demonstrated that the potential loss to the victim
exceeded $10,000]. Subsequently, they clarified Matter of S-I-K- to only require an overt act when the
conspiracy statute required an overt act, such as 18 USC §371. However, if the conspiracy statute did not
require an overt act, the respondent could be found deportable under subsection “U” even if he could not
be deported for the underlying act. Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) [reversed the IJ’s
determination that a conviction for conspiracy to commit robbery under N.J. Stat. Ann. §§2C:5-2, :15-1,
and :12-1br was an aggravated felony under subsection “G” because no overt act was necessary, but
found that the absence of an overt act requirement in NJ’s statute did not bar a finding that a person was
aggravated felon under subsection “U”]. But see U.S. v. Garcia-Santana, supra [rejecting approach in
Richardson].
23. Aiding and Abetting; Accessory After the Fact—Although aiding and abetting is not included in the
definition of an aggravated felony under INA §101(a)(43)(U), the Supreme Court in Gonzales v. Duenas-
Alvarez, 549 U.S. 183 (2007) recognized that “aiding and abetting” a theft crime under the “generic
approach” addressed in Taylor fell within the definition of the substantive crime because “every jurisdiction—
all States and the Federal Government—has ‘expressly abrogated the distinction’ among principals and
aiders and abettors” except for accessories after the fact. Duenas-Alvarez, supra, 549 U.S. at 189. The Court
reversed the Ninth Circuit and determined that a person convicted of aiding and abetting under Cal. Veh.
Code §10851(a), is an aggravated felon. The Court also, without comment, found that aiding and assisting a
tax violation was an aggravated felony. Kawashima v. Holder, 565 U.S. 478 (2012) [conviction for aiding and
assisting in the preparation of a false tax return under 28 USC §7206(2) is an aggravated felony under (M)
(i)]. See also Matter of Delgado, 27 I&N Dec. 100 (BIA 2017) [finding that aiding and abetting robbery under
Cal. Penal Code §211 is generically an aggravated felony because an aider and abettor under California law
requires that the defendant is considered to have committed all elements of the crime]; Sales v. Sessions,
868 F.3d 779 (9th Cir. 2017) [aiding and abetting second degree murder is an aggravated felony because the
natural and probable consequences doctrine under California law is not outside the generic scope of aiding
and abetting]; Doe v. U.S. Att’y Gen., 659 F.3d 266, 274-77 (3d Cir. 2011) [aiding and abetting wire fraud
despite plea to only one count for less than $10,000 was nevertheless an aggravated felony because the
plea was to aiding and abetting the whole criminal scheme where the loss was $47,000]; James v. Gonzales,
464 F.3d 505, 508–10 (5th Cir. 2006) [aiding and abetting bank fraud under 18 USC §§2 & 1344 is an
aggravated felon under INA §101(a)(43)(M)(i)]. The Ninth Circuit has extended it to COVs following Duenas-
Alvarez. Ortiz-Magana v. Mukasey, 542 F.3d 653 (9th Cir. 2008) [aiding and abetting assault with a deadly
weapon under Cal. Penal Code §245(a)(1) is an aggravated felony]. However, the Supreme Court left open
the question of whether an accessory after the fact could commit the generic crime of theft and the Ninth
Circuit determined he could not. U.S. v. Vidal, 504 F.3d 1072, 1078 (9th Cir. 2007) (en banc) [Cal. Veh Code
Ann. §10851(a) is not categorically a theft crime because a person may be convicted as an accessory after
the fact]. But see U.S. v. Valdivia-Flores, 876 F.3d 1201, 1206-10 (9th Cir. 2017) [a conviction for possession
of heroin with intent to distribute under Wash. Rev. Code §69.50.401was not a drug trafficking aggravated
felony because the Washington statute defines aiding and abetting more broadly than the federal statute in
that Washington requires only knowingly committing the crime whereas the federal statute requires proof of
“specific intent”]. Page 320
I. Other Aggravated Felony Issues
1. Federal and State Law Apply—INA §101(a)(43) provides that the term “aggravated felony” applies to an
offense described in the above paragraphs “whether in violation of federal or state law ...” Matter of Ponce de
Leon, 21 I&N Dec. 154 (BIA 1996) [sale of marijuana even if not punished harshly under state law is
aggravated felony if it is drug trafficking crime under federal law]; Lopez-Elias v. Reno, 209 F.3d 788, 792 n.6
(5th Cir. 2000) [how Texas characterizes offense does not control for immigration purposes]; Blake v.
Gonzales, 481 F.3d 152, 160 (2d Cir. 2007) [although assault and battery on a police officer is not a felony
under Mass. law, it is a felony under federal law because the maximum term of imprisonment is more than
one year]; but see Francis v. Reno, 269 F.3d 162 (3d Cir. 2001) [reaching opposite conclusion and holding
that Pennsylvania offense that was treated as a misdemeanor under state law, but punishable by more than a
year, remained a misdemeanor and was not a crime of violence aggravated felony].
2. State Offenses as Aggravated Felonies—Whether a state categorizes its crime as a felony or

misdemeanor is no longer relevant, at least as to drug trafficking aggravated felonies, as the courts must look
to whether the state offense is punishable as a felony under federal law. Lopez v. Gonzales, 549 U.S. 47
(2006). Prior to Lopez, the BIA maintained the position that a state conviction that is a felony under state law
but not a felony under federal law may be an aggravated felony in those circuits that agreed with that position
or had taken no position. Matter of Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002) [reversed Matter of K-V-D-and
modified Matter of L-G-and Matter of Davis,and held that a state felony for possession of cocaine can be an
aggravated felony in those circuits that have not yet spoken on the issue or have adopted the view]. The
BIA’s position was squarely rejected by the Supreme Court with respect to drug possession offenses that are
state felonies but not federal felonies. Lopez v. Gonzales, 549 U.S. 47 (2006) [the Court held that “a state
offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct
punishable as a felony under that federal law.”]. Accord Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir.
2006) [a felony in Illinois for possession of cocaine that would be punishable only as a misdemeanor under
federal law is not an aggravated felony]; Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 919 (9th Cir. 2004)
[rejecting Yanez-Garcia and holding that “a state drug offense is not an aggravated felony unless it is
punishable as a felony under CSA or other federal drug laws named in the definition of ‘drug trafficking
crime,’ or is a crime involving a trafficking element”]; Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); U.S. v.
Pornes-Garcia, 171 F.3d 142, 147 (2d Cir. 1999); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); U.S. v. Peralta-
Espinoza, 413 F.Supp.2d 970 (E.D. Wis. 2006) [in sentencing guideline case possession of 4 pounds of
marijuana under Arizona law, although a felony, is not an aggravated felony because it is not a felony
punishable under the CSA].
In Matter of Crammond, 23 I&N Dec. 9 (BIA 2001), vacated on jurisdictional grounds,23 I&N Dec. 179 (BIA
2001), the BIA determined that a felony is defined as a term of “more than 1 year” imprisonment pursuant to
18 USC §3559(a)(5) while a misdemeanor is defined as “one year or less” of imprisonment under 18 USC
§§3559(a)(6)–(8). In Carachuri-Rosendo v. Holder, 560 U.S. 563, 569 & n.2 (2010), the Court noted that a
drug trafficking aggravated felony under federal law must be a felony pursuant to 18 USC §3559(a)(5) and a
conviction for possession of a drug that hypothetically could be a felony if treated as a recidivist crime was
not a conviction for a felony and therefore not an aggravated felony. And in Moncrieffe v. Holder, 569 U.S.
184, 199–200 (2013), the Court rejected cases requiring a respondent to prove factually that he fell within the
misdemeanor exception for distribution of drugs under 21 USC §841(b)(4) rather than relying on the
categorical approach. Cf. Blake v. Gonzales, 481 F.3d 152, 160 (2d Cir. 2007) [although assault and battery
on a police officer is not a felony under Mass. Gen. Laws. ch. 265 §13D, it is a felony under federal law
because the maximum term of imprisonment is more than one year]; U.S. v. Cordova-Arevalo, 456 F.3d 1229
(10th Cir. 2006) [although Colorado third-degree assault conviction is a misdemeanor under state law, it is a
felony under the federal definition pursuant to 18 USC §3559(a) and therefore enhancement of sentence was
appropriate]; Bovkun v. Ashcroft, 283 F.3d 166, 171 (3d Cir. 2002) [following U.S. v. Graham, found that state
misdemeanor conviction may be an aggravated felony if the term of imprisonment is at least one year]. But
see Francis v. Reno, 269 F.3d 162, 167–71 (3d Cir. 2001) [rejected reliance on §3559 analysis for 18 USC
§16(b) regarding crime of violence, and found that state misdemeanor statute, punishable by more than one-
year imprisonment, is not a “felony”]. There must be proof that the state charge contains all the elements of a
felony offense “for which an alien could be convicted and punished under the cited federal laws.” Matter of
Barrett, 20 I&N Dec. 171, 174 (BIA 1990). Page 321 See also Evanson v. U.S. Att’y Gen., 550 F.3d 284 (3d
Cir. 2008) [DHS bears burden of demonstrating that state conviction under 35 Pa. Cons. Stat. Ann. §780-
113(a)(30) was for a drug trafficking aggravated felony because the Pennsylvania statute does not explicitly
require remuneration or more than a small amount of marijuana that would be a misdemeanor under federal
law];Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) [same]. Also, certain aggravated felony categories do
not require that the conviction be a felony conviction. Biskupski v. U.S. Att’y Gen., 503 F.3d 274, 279–81 (3d
Cir. 2007) [a conviction under 8 USC §1324(a)(2) for misdemeanor smuggling is an aggravated felony
because Congress defined it as an aggravated felony irrespective of its nonfelony status under federal law];
Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir.), reh’g denied, 256 F.3d 546 (7th Cir. 2001) [found that a
misdemeanor offense for sexual abuse of a minor under Illinois law constituted an aggravated felony]; U.S. v.
Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001) [although attempted child molestation in the third degree is a
misdemeanor under Washington State law it is an aggravated felony].
3. “Described In” Language in Aggravated Felony Statutes—In a number of aggravated felony provisions,
e.g., §§101(a)(43)(D), (E), and (H)–(O), Congress requires that the conviction be one which is “described in”
the criminal section referred to. In Matter of Vasquez-Muniz, the BIA eventually adopted INS’s claim that
“described in” meant “similar to” the federal statute, and therefore the federal jurisdictional nexus need not be
present in a state conviction to be included as an aggravated felony. Matter of Vasquez-Muniz, 23 I&N Dec.
207 (BIA 2002) [prior felon convicted under Cal. Penal Code §12021(a)(1) is an aggravated felony under
§101(a)(43)(E)(ii), because it is an offense “described in” §922(g)(1)]. The BIA rejected the position that the
federal jurisdictional element must be present to demonstrate that the statutes are similar and found that the
California statute was similar to the federal statute because it contained the elements of knowing possession
of a firearm by a person who has been convicted of a felony irrespective of the lack of an interstate element.
Id. See also Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), rev’d, Bautista v. Att’y. Gen. of U.S., 744 F.3d 54
(3d Cir. 2014) [BIA followed Matter of Vasquez-Muniz, and found that attempted arson in the third degree in
violation of N.Y. Penal Law §§110 and 150.10 is a crime “described in” §844(i) notwithstanding the
requirement of the federal statute that the property had to be used in interstate or foreign commerce because
the term aggravated felony applies to an offense in violation of federal or state law]. In Luna Torres v. Lynch,
578 U.S. __, 136 S.Ct. 1619 (2016), the Supreme Court agreed with the BIA but for different reasons. The
Court determined that the “described in” language alone did not provide a definitive answer to whether a
state statute lacking the interstate commerce element, but otherwise mirroring the elements in the federal
arson statute, is an aggravated felony. The Court determined that the state offense, in this case attempted
arson in the third degree under N.Y. Penal Law §§110 and 150.10, need not replicate the interstate
commerce element to be an aggravated felony for two reasons. First, the penultimate sentence of INA
§101(a)(43) demonstrates that Congress intended to capture all serious crimes whether “prohibited by
federal, state, or foreign law.” Second, the Court relied on the “well-established background principle
distinguishing between substantive and jurisdictional elements in federal criminal statutes.”
4. “Relating To” Language
4.a. In General—Several courts have found that the “relating to” language in 101(a)(43)(R) signifies a broad
construction and that “Congress evidenced an intent to define [the listed offenses] in [their] broadest
sense…” Young Wong Park v. U.S. Att’y Gen., 472 F.3d 66, 72 (3d Cir. 2007) [quoting Drakes v. Zimski,
240 F.3d 246, 249 (3d Cir. 2001) and finding that 18 USC §2320, knowing use of a counterfeit mark is a
crime “relating to” counterfeiting within the meaning of 101(a)(43)(R)]. Accord Matter of Alvarado, 26 I&N
Dec. 895, 901 (BIA 2016) [on remand from the Ninth Circuit reaffirming that a conviction under Cal. Penal
Code §118(a) is a conviction relating to perjury under 101(a)(43)(S)]; Matter of Oppedisano, 26 I&N Dec.
202 (BIA 2013) aff’d Oppedisano v. Holder, 769 F.3d 147 (2d Cir. 2014) [unlawful possession of
ammunition by a convicted felon is an aggravated felony because the language in INA §101(a)(43)(E)(ii)
is descriptive and not limiting as it uses the phrase “relating to” firearms offenses]; Williams v. U.S. Att’y
Gen., 880 F.3d 100, 108 (3d Cir. 2018) [conviction under Georgia’s forgery statute, Ga. Code Ann. §16-9-
1(a) is an offense “relating to” forgery and the court relies on a “looser categorical approach” given the
“relating to” language to determine whether there is “a logical or casual connection” and not a “precise
match” to the federal definition]; Rodriguez-Valencia v. Holder, 652 F.3d 1157, 1159 (9th Cir. 2011)
[broadly reading “relating to” language to find Page 322 that conviction under Cal. Penal Code 350(a)(2)
for knowingly possessing for sale more than a 1,000 articles bearing a counterfeit trademark is an
aggravated felony under INA §101(a)(43)(R)]; Denis v. U.S. Att’y Gen., 633 F.3d 201, 206, 206-13 (3d Cir.
2011) [provides a broader reading of “relating to” than the BIA in Espinoza]; Magasouba v. Mukasey, 543
F.3d 13, 14–15 (1st Cir. 2008) [reciting broad language in Young Wong Park, selling pirated copies of
DVDs and CDs in violation of R.I. Gen. Laws §11-17-13(c)(1) is “related to” crimes designated under
subsection R]; Kamagate v. Ashcroft, 385 F.3d 144, 154 (2d Cir. 2004) [declining to interpret “relating to”
so narrowly as to limit subsection (R) only to counterfeiting offense involving the actual creation of
counterfeit instruments]; Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir. 2000) [in conviction for
possession of counterfeit U.S. obligations under 18 USC §472, holding that §101(a)(43)(R) “necessarily
covers a range of activities beyond those of counterfeiting or forgery itself”].
But the “relating to” language has its limits. Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980, 1989-90
(2015) [rejecting an expansive reading of “relating to” in the drug paraphernalia context finding that such
reading would stretch the statute “to the breaking point”]. See also Matter of Gruenangerl, 25 I&N Dec.
351 (BIA 2010) [limiting “relating to” language to find that bribery of a public official is not commercial
bribery and therefore not an aggravated felony]; Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999) [for the
crime to “relate to” obstruction, it must contain a “critical element” of the crime]; Matter of Batista-
Hernandez, 21 I&N Dec. 955 (BIA 1997) [misprision of a felony under 18 USC §4 is not an offense
“relating to” a controlled substance even when the felony concealed is heroin distribution]; Flores v. U.S.
Att’y Gen., 856 F.3d 280, 285-97 (3d Cir. 2017) [despite broad reading of the “relating to” provision of
obstruction of justice under INA §101(a)(43)(S), a conviction for accessory after the fact under S.C. Code
Ann. §16-1-55 is not an aggravated felony]; Rojas v. U.S. Att’y Gen., 728 F.3d 203, 217 (3d Cir. 2013) (en
banc) [in paraphernalia case under INA §237(a)(2)(B)(i) the “relating to” language modifies only the
“controlled substances” clause and not parenthetical “(as defined in section 802 of Title 21)”; thus DHS
must prove that the conviction was for a controlled substance listed in 21 USC §802]; Prus v. Holder, 660
F.3d 144 (2d Cir. 2011) [conviction under N.Y. Penal Law §§20.00 and 230.25 for promoting prostitution in
the third degree was not categorically an aggravated felony because: (i) prostitution under the INA means
sexual intercourse and the New York law covers sexual conduct; and (ii) the “relating to” language
modifies owning, controlling, managing or supervising but not the underlying criminal conduct]; Familia
Rosario v. Holder, 655 F.3d 739 (7th Cir. 2011) [a conviction under 8 USC §1328 which prohibits the
“importation into the U.S. of any alien for the purpose of prostitution” is not categorically an “offense that
relates to the owning, controlling, managing or supervision of a prostitution business” and therefore is not
an aggravated felony]; Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876 (9th Cir. 2008) [“Expanding the
definition of offenses ‘relating to’ forgery to include conduct where documents are not altered or falsified
stretches the scope too far”]; Renteria-Morales v. Mukasey, 551 F.3d 1076, 1083–86 (9th Cir. 2008)
[deferring to the definition of “relating to” in Matter of Espinoza]; Alwan v. Ashcroft, 388 F.3d 507, 513–15
(5th Cir. 2004) [same deference accorded BIA’s narrower interpretation of “relating to”].
4.b. In certain aggravated felonies the “relating to” language is parenthetical and is regarded by the BIA as
“descriptive” and not limiting the definition. For example, in Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA
1999), aff’d, Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000) the BIA examined the parenthetical
“relating to alien smuggling” in INA §101(a)(43)(N) and concluded it merely provided descriptive guidance
and a generic point of reference rather than an effort to limit the scope of the offense. See also, e.g.,
Castro-Espinosa v. Ashcroft, 257 F.3d 1130, 1132 (9th Cir. 2001); U.S. v. Salas-Mendoza, 237 F.3d 1246,
1247 (10th Cir. 2001). Similarly, in Matter of Oppedisano, 26 I&N Dec. 202 (BIA 2013) aff’d. Oppedisano
v. Holder, 769 F.3d 147 (2d Cir. 2014) the BIA determined that the parenthetical reference in 101(a)(43)(E)
(ii) “relating to firearms offenses” did not preclude the Board from determining that a felony conviction of
unlawful possession of ammunition by a convicted felon was an aggravated felony. It read “relating to
firearms offenses” in the parenthetical as descriptive and not as a limiting parenthetical. Page 323
5. “Involves” Language—Under §101(a)(43)(M)(i) a person commits an aggravated felony if the crime

“involves” fraud or deceit. The Supreme Court has recognized that the use of the term “involves” in the
statutory language means an offense that has elements that “necessarily entail fraudulent or deceitful
conduct.” Kawashima v. Holder, 565 U.S. 478, 484 (2012) [convictions for subscribing to a false tax return
under 26 USC §7206(1) and aiding and assisting in the preparation of a false tax return under 28 USC
§7206(2) are aggravated felonies notwithstanding the lack of fraud or deceit as formal elements of the
crimes]. However, neither fraud nor deceit must be a formal element of the crime for the offense to be an
aggravated felony. Kawashima v. Holder, supra 565 U.S. at 487–89. Accord Singh v. U.S. Att’y Gen., 677
F.3d 503, 508-09 (3d Cir. 2012) [a conviction for knowingly making a false statement in a bankruptcy
proceeding necessarily entails deceit and therefore qualifies as an aggravated felony under INA §101(a)(43)
(M)(i)]; Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008) [misprision of a felony is an aggravated felony
under §101(a)(43)(M)(i) because it necessarily involves an affirmative act of concealment which entails the
act of intentionally giving a false impression]; Valansi v. Ashcroft, 278 F.3d 203, 209–10 (3d Cir. 2002)
[holding that §101(a)(43)(M)(i) “does not require … that the elements of the offense be coextensive with the
crime of fraud”]; Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) [following Valansi].
6. “Including” Language in Aggravated Felony Statutes—In an effort to continually broaden the definition of
aggravated felony, the BIA has now seized on the language in certain aggravated felony statutes where the
word “including” is used to find that language means that Congress intended to cover a broader range of
offenses than those referenced. See e.g., Matter of Alday-Dominguez, 27 I&N Dec. 48, 51 n.7 (BIA 2017)
[where the Board determined that aggravated felony receipt of stolen property provision in INA §101(a)(43)
(G) does not require that the unlawfully received property be obtained by means of common law theft or
larceny, thereby reading the theft and stolen property provisions separately “because the receipt of stolen
property parenthetical [in §101(a)(43)(G) which uses the word ‘including’] is not limited to receipt offenses in
which the property was obtained by means of theft”].
7. Ordinary Meaning of “Aggravated Felony”—The Supreme Court, in the context of the “illicit trafficking”
provision recognized that the definition of “aggravated felony” should involve the “everyday understanding”
and “commonsense conception” of the term. Lopez v. Gonzales, 549 U.S. 47, 53 (2006). The Court rejected
in both Lopez and Carachuri-Rosendo v. Holder, 560 U.S. 563, 575 (2010) the government’s reading of
“aggravated felony” that “the English language tells us not to expect” [quoting Lopez]. In Lopez the Court
rejected the notion that trafficking could include simple possession. In Carachuri-Rosendo, the Court went
even further and found that an “aggravated” or “trafficking” label to any simple possession offense would be
“unorthodox” and that the same is true of a minor penalty because “[w]e do not usually think of a 10-day
sentence for an unauthorized possession of a trivial amount of a prescription drug as an ‘aggravated felony.’ “
Id. See also Esquivel-Quintana v. Sessions, 581 U.S. __, 137 S.Ct. 1562, 1566 (2017) [“The INA lists sexual
abuse of a minor as an ‘aggravated’ felony, [§237(a)(2)(A)(iii)], and lists it in the same subparagraph as
‘murder’ and ‘rape,’ [§101(a)(43)(A)], suggesting that it encompasses only especially egregious felonies.”].
8. Foreign Convictions—The term “aggravated felony” also applies to foreign convictions for all of the above if
the term of imprisonment was completed within the previous 15 years. The 15-year limitation applies to
foreign convictions only, not to domestic convictions. Levesque v. Lynch, 802 F.3d 152 (1st Cir. 2015)
[rejected claim that domestic fraud crime required term of imprisonment because of foreign conviction
provision]; U.S. v. Maturin, 499 F.3d 1243, 1246 (11th Cir. 2007) [plain language of §101(a)(43)]; Canto v.
Holder, 593 F.3d 638, 640–41 (7th Cir. 2010) [rejecting equal protection challenge to aggravated felony
statute that wipes away foreign conviction after 15 years but does not do the same for domestic convictions
as not “wholly irrational”]. Page 324
9. Categorical and Modified Categorical Approaches
9.a. Categorical Approach
(1) Overview
In Taylor v. U.S., 495 U.S. 575, 598–600 (1990) the Supreme Court, in the context of the Armed
Career Criminal Act, 18 USC §924(e) determined that the courts would not look at the label/name
given a statute to determine whether a crime was a violent felony but instead would look to its generic
definition, thus establishing a “categorical approach” to its determinations. Under the categorical
approach, if the statute does not meet the generic definition of the crime and is not divisible,no further
inquiry is appropriate. Descamps v. U.S., 570 U.S. 254 (2013). See also Aguilar-Turcios v. Holder, 740
F.3d 1294 (9th Cir. 2014) [court martial under Article 92 of the Uniform Code of Military Justice for
failure to comply with a lawful general order regarding the improper use of a computer for pornography
is not categorically an aggravated felony and under Descamp there is no divisible statute requiring a
modified categorical approach that would permit an inquiry into child pornography]; Rojas v. U.S. Att’y
Gen., 728 F.3d 203, 214-215 (3d Cir. 2013) (en banc) [in paraphernalia case the court rejected the
modified categorical approach because it found that 35 Pa. Cons. Stat. §780-113(a)(32)was not a
divisible statute and as it encompassed drugs that were not within the federal definition respondent
was not an aggravated felon]. ]. In general, the Supreme Court in the immigration context requires an
adjudicator to apply the categorical approach in determining whether an offense fits the aggravated
felony definition; “ ‘[C]onviction’ is ‘the relevant statutory hook.’ ” Moncrieffe v. Holder, 569 U.S. 184,
191 (2013) (quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 580 (2010). See also Gonzales v.
Duenas-Alvarez, 549 U.S. 183 (2007); Leocal v. Ashcroft, 543 U.S. 1 (2004). See also Mellouli v.
Lynch, 575 U.S. __, 135 S.Ct. 1980 (2015) [applying categorical approach to controlled substance
removability under INA §237(a)(2)(B)(i).
The “categorical” approach looks solely to the structure of the statute that is the subject of the
conviction. It focuses “solely on whether the elements of the crime of conviction sufficiently match the
elements of [the] generic [crime] while ignoring the particular facts of the case.… Distinguishing
between elements and the facts is therefore central.… Elements are the ‘constituent parts” of a crime’s
legal definition—the things the ‘prosecution must prove to sustain a conviction’.… At a trial, they are
what the jury must find beyond a reasonable doubt to convict the defendant;…and at a plea hearing,
they are what the defendant necessarily admits when he pleads guilty…Facts, by contrast, are mere
real-world things … having no ‘legal effect [or] consequence. Mathis v. U.S., 579 U.S. __, 136 S.Ct.
2243, 2248 (2016) [citations omitted]. See also Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016)
[post-Mathis providing a clear description of the categorical and modified categorical approaches and
finding the Texas misdemeanor assault statute was not a CIMT].The law “cares not a whit,” Mathis,136
S.Ct. at 2248, about the underlying circumstances (what the person actually did) when determining if
the conviction is an aggravated felony. In doing so, the court looks to nothing more than the least of the
acts criminalized (least culpable conduct) and then determines whether those acts are encompassed
by or broader or narrower than the generic federal offense. Esquivel-Quintana v. Sessions, 581 U.S.
__, __, 137 S.Ct. 1562, 1568-72 (2017); Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013);
Descamps v. U.S., 570 U.S. 254 (2013); Mellouli v. Lynch, 575 U.S. __ , __, 135 S.Ct. 1980, 1986-88
(2015). As the Court explained in Moncrieffe, 569 U.S. at 190–93: “Under this approach we look ‘not to
the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of
conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.
[Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186] (citing Taylor v. U.S., 495 U.S. 575, 599–600 (1990).
By ‘generic’ we mean the offenses must be viewed in the abstract, to see whether the state statute
shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state
offense is a categorical match with a generic federal offense only if a conviction of the state offense
‘necessarily’ involved … facts equating to [the] generic [federal offense].” Shepard v. U.S., 544 U.S. 13,
24 (2005) (plurality opinion). Whether the noncitizen’s actual conduct involved such facts ‘is quite
irrelevant.’ [citation omitted]…Because we examine what the state conviction necessarily involved, not
the facts underlying the case, we must presume that the conviction ‘rested Page 325 upon [nothing]
more than the least of th[e] acts’ criminalized, and then determine whether even those acts are
encompassed by the generic federal offense. Johnson v. U.S., 559 U.S. 133, 137 (2010); Moncrieffe,
569 U.S. at 189–91. See also, Flores v. Holder, 779 F.3d 159, 165-67 (2d Cir. 2015) [reversing BIA for
analyzing the facts of respondent’s conduct in the modified categorical approach rather than whether
the minimum conduct necessary to violate the particular section of the statute is encompassed within
the definition of sexual abuse]; U.S. v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014) [the generic
definition of the offense is not what common law originally decided but its usage as determined by the
majority of states]; Donawa v. U.S. Att’y Gen., 735F.3d 1275 (11th Cir. 2013) [applying Moncrieffe and
Descamps and finding that Fla. Stat. §893.13(1)(a)(2) as amended by Fla. Stat. §893.101 is not a drug
trafficking felony because a person could be convicted without any knowledge of the nature of the
substance in his possession as it no longer contains a mens rea element and the existence of an
affirmative defense regarding lack of knowledge does not trigger the modified categorical approach];
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. 2014) [same]; Martinez v. Mukasey, 551 F.3d 113, 118 (2d
Cir. 2008). See e.g., Jeune v. U.S. Att’y Gen., 476 F.3d 199, 204 (3d Cir. 2007) [assume the least
culpable conduct under the statute to determine whether crime is aggravated felony]; Vargas-
Sarmiento v. DOJ, 448 F.3d 159 (2d Cir. 2006) [same]. But see Spaho v. U.S. Att’y Gen. 837 F.3d 1172
(11th Cir. 2016) [finding that under the same Florida Statute §893.13(1)(a)(2) the statute was divisible
for the “illicit trafficking” component of the aggravated felony statute].
(2) Nondivisible Statutes—If the statute is not divisible and the minimum criminal conduct does not result
in an aggravated felony then the statute is not categorically an aggravated felony and the inquiry would
end. Descamps v. U.S., 570 U.S. 254 (2013); Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980 (2015)
[where state drug statute overlaps but includes drug not included in the federal definition of a
controlled substance under 21 USC §802 then a state conviction is not categorically a deportable
controlled substance offense]. In this scenario the court simply “lines up [the] crime’s elements
alongside those of the generic offense and sees if they match.” Mathis v. U.S., 579 U.S. 136 S.Ct.
2243, 2248-49 (2016); Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016) [post-Mathis providing a
clear description of the categorical and modified categorical approaches and finding the Texas
misdemeanor assault statute was not a CIMT because it was overbroad but not divisible]; U.S. v.
Ochoa, 861 F.3d 1015-18 (9th Cir. 2017) [in prosecution for illegal reentry, conviction for conspiracy to
export defense articles in violation of 22 USC §2778(a) was not categorically an aggravated felony
because its incorporation of the Munitions List sweeps more broadly than the generic definition of the
aggravated felony crime and the Munitions List does not make the crime divisible]; Harbin v. Sessions,
860 F.3d 58 (2d Cir. 2017) [a conviction for criminal sale of a controlled substance in the fifth degree
under N.Y. Penal Law §220.31 is indivisible and not a categorical aggravated felony drug crime
because N.Y.’s drug schedule includes drugs such as chorionic gonadotropin that are not controlled
substances under the CSA and the identity of a controlled substance under New York law is a means
of committing a §220.31 offense, not an element of the offense]; Mena v. Lynch, 820 F.3d 114 (4th Cir.
2016) [conviction of possession of stolen property under second paragraph of 18 USC §659 is not a
“theft” aggravated felony under §101(a)(43)(G) because, at a minimum, it includes receipt of property
that was embezzled rather than taken without consent]; Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th
Cir. 2014) [court martial under Article 92 of the Uniform Code of Military Justice for failure to comply
with a lawful general order in this case regarding the improper use of a computer for pornography is
not categorically an aggravated felony and under Descamp there is no divisible statute requiring a
modified categorical approach requiring an inquiry into child pornography]; Campbell v. Holder, 698
F.3d 29 (1st Cir. 2012) [Conn. Gen. Stat. Ann. §53-21(a)(1) regarding conduct that results in risk to a
minor is not an aggravated felony sexual abuse crime because it includes conduct having nothing to
do with sexual abuse]. At least one court has found that because the determination is a legal and not
factual determination issues, such as the burden of proof, may not arise. See e.g., Sauceda v. Lynch,
819 F.3d 526 (1st Cir. 2016) [a noncitizen can qualify for cancellation of removal without having to
prove affirmatively that her conviction was not a disqualifying conviction because the allocation of the
burden of proof post-Moncrieffe and Mellouli “does not come into play” as the issue is purely a legal
question]. But see Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2018) Page 326 [characterizing
the modified categorical approach as a “question of fact or at least a question of law and fact” and
finding a noncitizen whose record of conviction under a divisible statute is ambiguous as to the offense
of conviction cannot satisfy his burden of proving eligibility for cancellation of removal]; Marinelarena v.
Sessions, 869 F.3d 780 (9th Cir. 2018) [same]. Courts may also look to the BIA’s construction of the
aggravated felony provisions pursuant to Chevron, but only if the BIA’s interpretation is based upon a
permissible construction of the statute. Moncrieffe, supra [declining to rely on Matter of Castro
Rodriguez, 25 I&N Dec. 698 (BIA 2012) in its analysis of the categorical approach on drug distribution];
Rosales Rivera v. Lynch, 816 F.3d 1064 (9th Cir. 2016) [declining to rely on Chevron under case law to
assume that written perjury is a CIMT where BIA relied on case that provided no reasoned explanation
for its decision]; Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086–87 (9th Cir. 2008) [relying on the
BIA’s construction of obstruction of justice and finding respondent’s conviction for failing to appear in
court under 18 USC §3146 is an aggravated felony].
(3) Divisible Statutes—In determining whether a statute is a categorical match some statutes have a
more complicated structure because the elements appear to be divisible into more than one crime. A
single statute may list elements in the alternative, and thereby define multiple crimes. In Mathis v. U.S.,
579 U.S. __ 136 S.Ct. 2243, 2249 (2016) the Court gave the example of a statute that prohibited both
lawful entry and unlawful entry of the premises with intent to steal. If the defendant were convicted of
the offense with unlawful entry as an element, then the conviction would match generic burglary. If the
conviction were for lawful entry, as in shoplifting, it would not qualify as an aggravated felony burglary.
The court must therefore determine which of the alternatives listed was integral to the defendant’s
conviction. “To address that need, this Court approved the ‘modified categorical approach’ for use with
statutes having multiple alternative elements. See e.g., Shepard v. U.S., 544 U.S. 13, 26 (2005). See
in this section “Modified Categorical Approach,” ¶ 9.c (p.332), infra. To determine whether a statute is
divisible the Supreme Court set forth the following test in Mathis v. U.S., 579 U.S. __, 136 S.Ct. 2243,
2256–57 (2016): the adjudicator should first determine whether a “state court decision definitively
answers the question.” Mathis, 579 U.S. __, 136 S.Ct. at 2256. At the same time, “the statute on its
face may resolve the issue.” Id. “If statutory alternatives carry different punishments, then … the must
be elements.” Id. “[I]f a statutory list is drafted to offer illustrative examples, then it includes only a
crime’s means of commission.” Id. (citation omitted). “And a statute itself may itself identify which
things must be charged (and so are elements) and which need not be (and so are means).” Id. “And if
state law fails to provide clear answers, federal judges have another place to look: the record of a prior
conviction itself.… [S]uch a peek at the [record] documents is for the sole and limited purpose of
determining whether [the listed items are] element[s] of the offense.” Id. at 2256-2257 (internal
quotation omitted; brackets original). See also Diego v. Sessions, 857 F.3d 1005 (9th Cir. 2017)
[following the approach in Mathis, the 9th Cir. found that Or. Rev. Stat. §163.427(1)(a) is categorically
sexual abuse of a minor]; Contreras v. Holder, 754 F.3d 286 (5th Cir. 2014);Rosales Rivera v. Lynch,
816 F.3d 1064 (9th Cir. 2016) [written perjury under Cal. Penal Code §118 is a separate crime and is
not a CIMT]; Ramirez v. Lynch, 810 F.3d 1127, 1134-38 (9th Cir. 2016) [finding Cal. Penal. Code
§273a(a) felony child abuse is not divisible despite the use of the disjunctive because under the
California interpretation of the statute a jury need only agree over the discrete crime and not how it
was committed]. This approach seems contrary to Shepard because it allows review of the conviction
record to confirm whether a statute is indivisible rather than the other way around. But as the Supreme
Court emphasized in Mathis, “[S]uch a peek at the [record] documents is for the sole and limited
purpose of determining whether [the listed items are] element[s] of the offense.” Id. at 2256–57
(internal quotation omitted; brackets original). Mathis, 579 U.S. __, 136 S.Ct. at 2256–57.
(4) Time to Determine Categorical Approach—In the view of one court, when determining the categorical
approach, the court should look to the status of the federal drug schedules at the time of the conviction
and not at the time of the removal proceeding. Doe v. Sessions, 886 F.3d 203 (2d Cir. 2018) [the
subsequent deletion of a drug from the federal schedules after Page 327 respondent’s conviction but
before his removal proceeding still renders his federal conviction categorically a conviction for a drug
crime].
(5) Ordinary Case Approach—As a result of the Supreme Court decisions in Sessions v. Dimaya, 584
U.S. __, 138 S.Ct. 1204 (2018); Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015) and Welch v.
U.S., 578 U.S. __, 136 S.Ct. 1257 (2016) [applying Johnson retroactively in cases seeking collateral
review], the use of the “ordinary case” approach to determine whether a statute in the “ordinary case”
will contain a risk of force under 18 USC §16(b) or a risk of injury under Armed Career Criminal Act, 18
USC §924(e)(2)(B)(ii) has been rejected. The Court in Dimaya following Johnson found the “ordinary
case” approach to be unconstitutionally void-for-vagueness. Prior BIA and court decisions such as
Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) [Fla. Stat. §784.041(1) is an aggravated
felony under 16(b) because in the “ordinary case” the risk of force exists even if it is not always a
realistic probability or the least culpable conduct necessary to commit the crime] and U.S. v. Taylor,
814 F.3d 340 (6th Cir. 2016) [18 USC §924(c)(3)(B) is not unconstitutionally vague, although materially
identical to §16(b)] are therefore no longer good law. See also Matter of Guzman-Polanco, 26 I&N
Dec. 713, 715 (BIA 2016) [following Moncrieffe and notwithstanding Francisco-Alonzo, the Board
recognized that the conviction must rest on nothing more than the least of the acts criminalized under
the categorical approach]; U.S. v. Hernandez-Lara, 817 F.3d 651 (9th Cir. 2016) [following Dimaya, the
court held that §16(b) as incorporated in USSG §2L1.2(b)(1)(C) is void for vagueness]; Shuti v. Lynch,
828 F.3d 440 (6th Cir. 2016) [in the context of unarmed robbery under Mich. Comp. Laws §750.530
INA’s definition of crime of violence under INA §101(a)(43)(F) is void for vagueness because of its
reliance on §16(b)]; U.S. v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015).
(6) Elements vs. Means—A statute is divisible when it sets out multiple, alternative elements, thus
defining more than one crime, and at least one, but not all, of the alternatives is a categorical match to
the generic standard. Descamps v. U.S., 570 U.S. 254, 257 (2013). An “element” for these purposes,
is something that must be proved beyond a reasonable doubt and about which the jury must be
unanimous. Id. at 2288 (citing Richardson v. U.S., 526 U.S. 813, 817 (1999)). If the listed alternative
does not need to be proven beyond a reasonable doubt, then it is simply a means of violating a single
offense and the modified categorical approach would not be triggered. If they are merely “means” of
establishing an element then the statute is not treated as divisible. In Mathis v. U.S., 579 U.S. __, 136
S.Ct. 2243, 2248 (2016), reaffirming this view, the Court stated that: “Elements are the ‘constituent
parts’ of a crime’s legal definition—the things that the ‘prosecution must prove to sustain a conviction.’
At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, and at
a plea hearing, they are what the defendant necessarily admits when he pleads guilty. Facts, by
contrast, are mere real-world things—extraneous to the crime’s legal requirements (We have
sometimes called them “brute facts’ when distinguishing them from elements.) They are
‘circumstance[s]’ or ‘event[s] having no ‘legal effect [or] consequence’: In particular, they need neither
be found by a jury nor admitted by a defendant.” Mathis [Iowa’s burglary statute is broader than
generic burglary because it encompasses vehicles as well as dwellings and because burglary of a
vehicle is not a separate element, the statute is overbroad and indivisible]. Although the Court in
Mathis did allow the adjudicator to “peek” at the jury instructions and charging document to determine
divisibility, Mathis 136 S.Ct. at 2257, the actual facts of the plea are not relevant to the divisibility
analysis. See also Cintron v. U.S. Att’y Gen. 882 F.3d 1380 (11th Cir. 2018) [Fla. Stat. §893.135(1)(c)1
is categorically not an aggravated felony drug “trafficking” crime despite listing sale, purchase,
manufacture, delivery, possession and bringing drugs into Florida because these are not elements of
the offense but means of proving “drug trafficking” and the least culpable conduct—possession—is not
an aggravated felony under the CSA; Spaho and Fla. Stat. §893.13(1)(a) distinguished]; Francisco v.
U.S. Att’y Gen., 884 F.3d 1120 (11th Cir. 2018) [followed Cintron and found that Fla. Stat. §893.135(1)
(b)1.c was also not an aggravated felony]; but see Ibanez-Beltran v. Lynch, 858 F.3d 294 (5th Cir.
2017) [finding Ariz. Rev. Stat. 13-2405(A)(4) on a charge of attempted transportation of marijuana for
sale a divisible statute despite ambiguity of state interpretation because court looked at the Page 328
plea agreement and judgment to determine whether listed items of statute are elements of the
offense].Post-Descamps and Mathis it is clear that the mere existence of an “or” in a statute does not
make the statute divisible. Also, sentencing enhancements do not create elements of a crime. Chavez-
Alvarez v. U.S. Att’y Gen., 850 F.3d 583 (3d Cir. 2017) [reversing Matter of Chavez-Alvarez, 26 I&N
Dec. 274, 279-81 (BIA 2014) because the use by the BIA of a sentence aggravator under Manual for
Court-Martial to convert a sodomy offense to forcible sodomy was impermissible as a sentence
enhancer for force cannot count as the functional equivalent of an “element” of the offense; only
Congress can create crimes and the Manual determines punishment not the elements of a crime]. See
generally Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality) [concluding that the “assumption that
any statutory alternatives are ipso facto independent elements defining independent crimes under
state law” is “erroneous” because “legislatures frequently enumerate alternative means of committing a
crime without intending to define separate elements or separate crimes”]; Villavicencio v. Sessions,
879 F.3d 941, 947-48 (9th Cir. 2018) [where Nev. Rev. Stat. §454.351 drug statute recognizes multiple
means of violation, e.g., possessing, procuring, or manufacturing, it is nevertheless indivisible and
subject to the categorical and not the modified categorical approach]; U.S. v. Estrella, 758 F.3d 1239
(11th Cir. 2014) [violation of Fla. Stat. §790.19 for wantonly or maliciously throwing a missile at an
occupied vehicle was not a COV under USSG §2L1.2(b)(1)(A)(ii) under either the categorical or
modified categorical approach]. For example, in U.S. v. Royal, 731 F.3d 333, 341 (4th Cir. 2013) the
Court found that a Maryland statute that proscribed “offensive physical contact with, or harm to, the
victim” described alternative means, not elements, because “it is enough that each juror agree only
that one of the two occurred, without settling on which,” and therefore the modified categorical
approach would not apply. The listing of parts of the statute in the disjunctive therefore does not
automatically mean that the modified categorical approach is invoked. Mathis, supra; U.S. v. Ochoa,
861 F.3d 1010, 1015-18 (9th Cir. 2017) [in prosecution for illegal reentry, conviction for conspiracy to
export defense articles in violation of 22 USC §2778(a) was not categorically an aggravated felony or a
firearms offense because its incorporation of the Munitions List sweeps more broadly than the generic
definition of those crimes and the Munitions List does not make 2778(a) divisible]; Gomez-Perez v.
Lynch, 829 F.3d 323 (5th Cir. 2016) [following Mathis the court found that the different mental states—
intentionally, knowingly, or recklessly—to obtain a conviction for misdemeanor assault under Tex.
Penal Code §22.01(a)(1) were means and not elements of the crime and the conviction therefore was
categorically not a CIMT]; Almanza-Arenas v. Lynch, 815 F.3d 469, 477-78 n.11 (9th Cir. 2015,
amended 2016) (en banc) [mere use of the disjunctive term “or” does not automatically make a statute
divisible, and Cal. Penal Code §10851(a) is categorically not a CIMT]; Castillo v. Holder, 776 F.3d 262,
270 n.7 (4th Cir. 2015) [Va. unauthorized use of a vehicle statute is not divisible simply because it
details various means of committing the crime without containing alternative elements]; Omargharib v.
Holder, 775 F.3d 192, 197-200 (4th Cir. 2014) [the use of the word “or” in the definition of a crime does
not automatically render the crime divisible because the statutory alternatives represent different
means not elements, and under Va. Code Ann. §18.2-95 for grand larceny the statute is not divisible
because jurors do not have to unanimously agree whether the property was wrongfully or fraudulently
taken]; Rendon v. Holder, 764 F.3d 1077, 1088-89 (9th Cir. 2015) [finding that Cal. Penal Code §459
was not an aggravated felony under attempt provision and not divisible simply because the statute was
written in the disjunctive because “we determine whether a disjunctively worded statute is divisible or
not by looking to whether the state treats the parts of the statute on opposite sides of the ‘or’ as
alternative elements or alternative means”]. But see Swaby v. Yates, 847 F.3d 62, 66-69 (1st Cir. 2017)
[where a state treat each specific drug as an element of a crime then the statute is divisible, the
modified categorical approach applies, and the court may look to documents demonstrating a
conviction for marijuana]; Spaho v. U.S. Att’y Gen. 837 F.3d 1172 (11th Cir. 2016) [finding Florida
Statute §893.13(1)(a)(2) divisible for the “illicit trafficking” component of the aggravated felony statute,
notwithstanding Donawa, and looking to state court opinions to determine divisibility]; Flores-Larrazola
v. Lynch, 840 F.3d 234, 238-39 (5th Cir. 2016) [finding that Ark. Code Ann. §5-64-401(a) drug
trafficking crime that has three mens rea (purposely, knowingly, or recklessly) and four actus reus
elements (manufacture, deliver, Page 329 or possess with the intent to manufacture or deliver) creates
“twelve different crimes” and therefore the modified categorical approach is appropriate]; Franco-
Casasola v. Holder, 773 F.3d 33 (5th Cir. 2014) [finding 18 USC §554(a) regarding exporting or
attempting to export merchandise contrary to any law or regulation of the U.S. a divisible statute on the
theory that reference to other statutes and regulations provide the specific “elements” of the offense];
Avendano v. Holder, 770 F.3d 731, 734-35 (8th Cir. 2014) [terrorist threats post-Descamps under Minn.
Stat. §609.713 subd. 1 is divisible because it provides alternative culpable mental states and
respondent was convicted under recklessness prong]; Medina-Lara v. Holder, 771 F.3d 1106, 1112-19
(9th Cir. 2014) [following Coronado in regard to modified categorical approach under Cal. Health &
Safety Code §11351 but holding that where charge says cocaine but abstract only records “controlled
substance” ICE failed to prove by clear and convincing evidence that conviction is for aggravated
felony or drug crime]; Sandoval-Gomez v. Holder, 768 F.3d 904, 910-18 (9th Cir. 2014) [Cal. Penal
Code §455 is divisible because it may be committed in several ways including attempt, aiding, or
committing preliminary acts]; U.S. v. Cabrera-Perez, 751 F.3d 1000, 1004-05 (9th Cir. 2014) [different
parts of Arizona’s aggravated assault statutes, Ariz. Rev. Stat. §§13-1203, 13-1204 requiring different
mens rea are sufficient to make statutes divisible]; Coronado v. Holder, 759 F.3d 977, 982-86 (9th Cir.
2014) [finding that Cal. Health & Safety Code 11377(a) for controlled substance possession is not
categorically a drug crime because California schedules list “khat” which is not listed in the CSA, but
then allowing the modified categorical approach because §1377(a) identifies different statutes and
schedules]; Alvarado v. Holder, 759 F.3d 1121, 1130-31 (9th Cir. 2014) [accepted modified categorical
approach even where government conceded that Arizona’s definition of dangerous drug is broader that
federal definition of controlled substance]; Ragasa v. Holder, 752 F.3d 1173, 1175-76 (9th Cir. 2014)
[followed Coronado regarding modified categorical approach for violation of Attempted Promoting a
Dangerous Drug in the First Degree under Haw. Rev. Stat. §§705-500(1)(b), 712-1241(1)(b)(ii)].
(a) BIA Approach—In Matter of Chairez, 26 I&N Dec. 349, 353-54 (BIA 2014) the BIA, in light of
Descamps determined it no longer has the authority to apply its divisibility analysis in Matter of
Lanferman, 25 I&N Dec. 721 (BIA 2012). On partial rehearing in Matter of Chairez, 26 I&N Dec.
478, 481-84 (BIA 2014) (Chairez II) it held, however, that the BIA would be bound by each circuit’s
interpretation of Descamps and found that the 10th Circuit in U.S. v. Trent, 767 F.3d 1046, 1058-61
(10th Cir. 2014) held that Descamps reference to separate elements needed for divisibility did not
require that a jury prove them unanimously and beyond a reasonable doubt but rather that the
reference to elements means simply “alternative statutory phrases.” It, therefore, held that the Utah
statute that had different mens rea of intentional, knowing, or reckless made the statute divisible.
The A.G. however, remanded the case in light of the S.Ct.’s decision in Mathis v. U.S.. Matter of
Chairez and Matter of Sama, 26 I&N Dec. 796 (AG 2016). In Matter of Chairez, 26 I&N Dec. 819
(BIA 2016) (Chairez III) the BIA on remand from the AG recognized that the “divisibility” analysis
embodied in Descamps and Mathis applies in immigration proceeding and the BIA must follow
applicable circuit law when seeking to determine what Descamp and Mathis require. 26 I&N Dec. at
819-20. It recognized in Chairez III that different mental states are not elements of the crime if the
jury, as in Utah, are not required to reach a unanimous verdict with respect to the defendants
mental state to convict him of discharge of a firearm under Utah Code §76-10-508.1. In Matter of
Chairez-Castrejon, 27 I&N Dec. 21, 22 (BIA 2017) (Chairez IV) it reaffirmed the continuing validity
of Mathis and despite the respondent’s plea to “knowingly” committing the crime, the BIA found that
Mathis’ divisibility analysis allows the IJ only to “peek” at the relevant jury instructions and charging
document to determine whether the statute is divisible, and not to rely on the factual plea to
determine the elements of the crime.
(7) Definitional Elements—A definitional element of a crime must also be considered in determining
whether a crime is categorically an aggravated felony. Thus, where Congress has chosen to define a
drug trafficking crime not to include social sharing of a small quantity of marijuana, as in Moncrieffe, or
as not involving an antique firearm as in U.S. v. Aguilera-Rios, 769 F.3d 626, 633-37 (9th Cir. 2014)
Page 330 [post-Moncrieffe a conviction under Cal. Penal Code §12021(c)(1) is not a categorical match
to immigration law’s firearms offense because a person can and does get convicted under state law for
possession of an antique firearm whereas the federal definition exempts antique firearms] then a state
statute that does punish these activities would not be a categorical match to the federal statute. See
e.g., Flores v. Holder, 779 F.3d 159, 165-67 (2d Cir. 2015) [reversing BIA for analyzing the facts of
respondent’s conduct in the modified categorical approach rather than whether the minimum conduct
necessary to violate the particular section of the statute is encompassed within the definition of sexual
abuse]; Rodriguez-Contreras v. Sessions, 873 F.3d 579 (7th Cir. 2017) [holding that a conviction under
Illinois felon-in-possession of a firearm is not an aggravated felony where the state definition of firearm
includes air-powered weapons and the federal definition does not].
(8) Hypothetical Ambiguity—In determining whether a crime may be an aggravated felony, the Court has
rejected a hypothetical approach. In Carachuri-Rosendo v. Holder, 560 U.S. 563, 575-82 & n.11 (2010)
the Court held that a person who might hypothetically be convicted of a crime, such as recidivist
possession, where documents indicated that the respondent “could” have been charged as a recidivist
but was not, could not be found to be an aggravated felon. Under the hypothetical approach any
conduct that hypothetically could have been punished as a felony had it been prosecuted in federal
court is an aggravated felony for immigration purposes. The Court rejected this approach inter alia
because: (1) it is contrary to the bar to cancellation which requires that a person be “convicted” of an
aggravated felony; (2) it misreads the Court’s decision in Lopez by confusing hypothetical crimes with
categorical ones; and (3) ambiguities in federal statutes should be construed in the noncitizen’s favor.
In Duenas-Alvarez, the Court determined that under the categorical approach, it is insufficient to
provide “theoretically possible” conduct that constitutes a non–aggravated felony to determine that a
particular statute is not an aggravated felony. Rather, it requires proof that the minimum conduct that
would make a conviction a non–aggravated felony crime has a “realistic probability” of being
prosecuted under the statute. In Duenas-Alvarez, the Court addressed whether “aiding and abetting”
under a vehicle theft statute in California was an aggravated felony and rejected the Ninth Circuit’s
determination that “aiding and abetting” a theft is not itself a crime that falls within the generic definition
of theft. In so doing, the Court found that when a respondent seeks to create a new “subspecies” of a
crime so that it falls outside of the generic definition of the aggravated felony then he or she has the
burden to demonstrate that the statute was applied that way in his or her case or that it has been
applied that way in other actual, not hypothetical, cases. The Court stated: “[I]n our view, to find that a
state statute creates a crime outside the generic definition of a listed crime in a federal statute requires
more than the application of legal imagination to a state statute’s language. It requires a realistic
probability, not a theoretical possibility, that the State would apply its statute to conduct that falls
outside the generic definition of a crime. To show that realistic probability, an offender, of course, may
show that the statute was so applied in his own case. But he must at least point to his own case or
other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for
which he argues.” Duenas-Alvarez, supra, 549 U.S. at 193. See also Moncrieffe v. Holder, 569 U.S.
184, 205–06 (2013) [defining Duenas-Alvarez in regard to state firearms convictions in dicta as
requiring that a “noncitizen would have to demonstrate that the State actually prosecutes the relevant
offense in cases involving antique firearms”]. The decisions of the Supreme Court, Courts of Appeals,
and BIA diverge widely on the import of Duenas-Alvarez and Moncrieffe on the realistic probability
requirement. In conducting the categorical analysis in Descamps, Mellouli, and Esquivel-Quintana, the
Supreme Court identified that the statutes at issue covered nongeneric conduct based on their
statutory text, without conducting any realistic probability inquiry. See Descamps v. U.S., 570 U.S. 254,
258–60 (2013) [Cal. Penal Code §459 covers nongeneric conduct, to wit, the lawful entry into a
structure with intent to commit grand or petit larceny]; Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980,
1988 (2015) [Kansas’s controlled substance schedules include “at least nine substances” not
controlled by federal law]; Esquivel-Quintana v. Sessions, 581 U.S. __, 137 S.Ct. 1562, 1568 (2017)
Page 331 [“the California statute at issue in this case does not categorically fall within” the definition of
a sexual abuse of a minor aggravated felony]. The Board too has been inconsistent in its approach to
the realistic probability determination. Compare Matter of Mendoza Osorio, 26 I&N Dec. 703, 707-09 &
n.3 (BIA 2016) [substantially broadening the burden to demonstrate a realistic probability by requiring
that others had to have been convicted of the hypothetical crimenot merely indicted for it]; Matter of
Ferreira, 26 I&N Dec. 415 (BIA 2014) [even where a state statute (Conn. Gen. Stat. Ann. §21a-277(a))
on its face covers a controlled substance not included in the Federal schedule, there must still be a
realistic probability the state would prosecute conduct that falls outside the generic definition to defeat
removability]; Matter of Chairez, 26 I&N Dec. 349, 355-57 (BIA 2014) and Matter of Chairez, 26 I&N
Dec. 819, 821 n.2 (BIA 2016) (Chairez III) [following Duenas-Alvarez and Moncrieffe the Board held
that a prosecution for an antique firearm was not a “realistic probability” and therefore a conviction
under Utah Code §76-10-508.1 for felony discharge of a firearm is a deportable offense] with Matter of
Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018) [looking to the legislative history and not court
interpretations to determine that there was a realistic probability that Cal. Penal Code §646.9 is
overbroad because it permits a conviction for stalking where the victim only feared for her “safety” and
not “bodily harm or death”].
See also James v. U.S., 550 U.S. 192, 208 (2007) [quoting Duenas-Alvarez and suggesting a broad
application]; Pierre v. U.S. Att’y Gen., 879 F.3d 1241 (11th Cir. 2018) [respondent failed to show that it
was a realistic probability under Duenas-Alvarez that a conviction under Fla. Stat. §784.085 for battery
of a child by “throwing, tossing, projecting, or expelling certain fluids or materials” was not in all cases
a knowing CIMT]; Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015) [finding no aggravated felony because
“common sense” suggests there exists a realistic probability that under the statute, Connecticut can
punish conduct that results in “physical injury” but does not require the “use of physical force”]; U.S. v.
Sandoval-Orellana, 714 F.3d 1174, 1179 (9th Cir. 2013) [applying Duenas-Alvarez, finding a COV
under 16(b), and holding, that notwithstanding the statutory language providing for conviction for
sexual penetration under duress, the court looks to whether in the “ordinary case” there is a substantial
risk that force will be used]; Gonzalez-Cervantes v. Holder, 709 F.3d 1265 (9th Cir. 2013) [following
Duenas-Alvarez there was no showing that the state courts have interpreted the misdemeanor sexual
battery statute Cal. Penal Code §243.4(e) to conduct that is not morally turpitudinous]; Perez-Gonzalez
v. Holder, 667 F.3d 622, 627 (5th Cir. 2012) [finding a realistic probability by looking to Minnesota
Supreme Court cases that Minnesota would apply its statute to digital penetration which falls outside
the generic definition of rape under INA §101(a)(43)(A)]; U.S. v. Villavicencio-Burruel, 608 F.3d 556,
561-63 (9th Cir. 2010) [finding no case pursuant to Duenas-Alvarez that is inconsistent with Cal. Penal
Code §422 involving the generic definition of a COV]; Rebilas v. Keisler, 506 F.3d 1161, 1162–63 (9th
Cir. 2007) [following Duenas-Alvarez and James by reviewing actual decisions from AZ courts in
concluding that attempted sexual indecency to a minor was not categorically an aggravated felony];
U.S. v. Reveles-Espinoza, 522 F.3d 1044, 1048 (9th Cir. 2008) [petitioner did not establish “a realistic
probability, not a theoretical possibility” that California would apply a cultivation of marijuana statute in
a way that conduct would fall outside the nongeneric definition of an aggravated felony]. But
seeSwaby v. Yates, 847 F.3d 62, 64-66 (1st Cir. 2017) [rejecting the analysis of Duenas-Alvarez in
Matter of Ferreira because the “realistic probability” analysis has no place where a state’s statute has
actually defined the activity outside of the generic definition of a deportable controlled substance
offense, thereby undermining any issue that it is “speculative”]; Singh v. U.S. Att’y Gen., 839 F.3d 273,
286 n.10 (3d Cir. 2016) [holding in a drug case that where “the elements of the crime of conviction are
not the same as the elements of the generic federal offense,” the “realistic probability language is
simply not meant to apply”]; Chavez-Solis v. Lynch, 803 F.3d 1004, 1009-10 (9th Cir. 2015) [where a
state statute, here Cal. Penal Code §311.11(a) regarding child pornography, “explicitly defines a crime
more broadly than the generic definition,” here the federal statute, 18 USC §2252(a)(4)(B), “no legal
imagination is required to hold that a realistic probability exists that the state will apply its statute to
conduct that falls outside the generic definition of the crime”]; U.S. v. Aguilera-Rios, 769 F.3d 626, 633-
37 (9th Cir. 2014) [post-Moncrieffe a conviction under Cal. Penal Code §12021(c)(1) Page 332 is not a
categorical match to immigration law’s firearms offense because a person can and does get convicted
under state law for possession of an antique firearm whereas the federal definition exempts antique
firearms]; Medina-Lara v. Holder, 771 F.3d 1106, 1115-17 (9th Cir. 2014) [followed Aguilera-Rios]. But
see Ramos v. U.S. Att’y Gen., 709F.3d 1066 (11th Cir. 2013) [narrowly interpreting Duenas-Alvarez to
not require a showing of case law where “the statutory language itself, rather than the ‘application of
legal imagination’ to that language creates the ‘realistic probability’ that a state would apply the statute
to conduct beyond the generic definition”]; Jean-Louis v. U.S. Att’y Gen., 582 F.3d 462, 481 (3d Cir.
2009) [refusing to import the realistic probability test to the CIMT context]; U.S. v. Salmons, 873 F.3d
446, 451 (4th Cir. 2017) [“litigants must point to the statutory text or to actual cases in order to
demonstrate that a conviction … could in fact be sustained for [nongeneric] conduct”]; Singh v. U.S.
Att’y Gen., 839 F.3d 273 (3d Cir. 2016) [“We recognize Moncrieffe approved of something akin to a
‘realistic probability’ inquiry. But in that case (and in Duenas-Alvarez), the relevant elements were
identical. Here, the elements of the crime of conviction are not the same as the elements of the generic
federal offense. The Supreme Court has never conducted a ‘realistic probability’ inquiry in such a case.
Accordingly, we believe this is a case where the ‘realistic probability’ language is simply not meant to
apply.”]; Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1072–73 (9th Cir. 2007) (en banc), overruled on
other grounds, U.S. v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) [post–Duenas
Alvarez, finding accessory after the fact is not a CIMT; rejecting the dissent’s idea of presenting a list of
cases where people were prosecuted and the crime involved moral turpitude because there was
nothing in the crime that made it a CIMT, and the majority pointed to examples of prosecutions as an
accessory for non-CIMTs]; Cerezo v. Mukasey, 512 F.3d 1163, 1167 (9th Cir. 2008) [Duenas-Alvarez is
not applicable when the language of the statute is clearand “plainly and specifically criminalizes
conduct outside the contours of the federal definition”]; U.S. v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)
(en banc).
Duenas-Alvarez in Categorically Overbroad Drug Cases—Where a state drug statute is overbroad, the
respondent in at least one circuit and under the BIA’s view may be required to establish that there is a
“realistic probability” that the state actually prosecutes someone for substances not on the federal
schedules. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014) [even where a state statute (Conn. Gen.
Stat. Ann. §21a-277(a)) on its face covers a controlled substance not included in the Federal schedule,
there must still be a realistic probability the state would prosecute conduct that falls outside the generic
definition to defeat removability]; Vazquez v. Sessions, 885 F.3d 862, 874 (5th Cir. 2018) [finding U.S.
v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc) requirement that the “realistic probability” test
must apply even where a state statute is overbroad, the court found that despite Okla. Stat. tit. 63, §2-
402(A)(1) being categorically overbroad for containing drugs not listed on the federal schedules, the
failure to brief the issue that the realistic probability test was satisfied resulted in waiver and the order
of deportation was therefore upheld]. But see U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017)
(en banc) [recognizing the drug schedules covered under Cal. Health and Safety Code §11352(a) are
overbroad based on the express inclusion of nongeneric substances in the statutory text, without any
further realistic probability showing]; Swaby v. Yates, 847 F.3d 62, 65-66 (1st Cir. 2017) [rejecting the
realistic probability test for controlled substance violations]; Vassell v. U.S. Att’y Gen.,839 F.3d 1352,
1362 (11th Cir. 2016); Singh v. U.S. Att’y Gen., 839 F.3d 273, 286 (3d Cir. 2016).
9.b. Waiver of Divisibility Analysis? Can a party waive its right to contest whether a conviction under a
statute contains elements that are broader than a federal statute? The Board thinks so. Matter of L-G-H-,
26 I&N Dec. 365, 368 n.5 (BIA 2014) [claiming that respondent waived on appeal his claim that the
substances covered under Fla. Stat. §893.13(1)(a)(1) involving drug trafficking are broader than those
under federal law because he did not dispute his conviction was for cocaine trafficking].
9.c. Modified Categorical Approach—However, if the statute is divisible, meaning that it defines multiple
offenses with alternative elements, at least one of which comes within the removal ground and one of
which does not, then the court could look to certain documents to determine which of the offenses formed
the basis of the conviction. The Supreme Court emphasized that Page 333 an adjudicator applying the
modified categorical approach may not examine underlying court records to determine the facts or
conduct, but only to determine which statutory offense or section the person was convicted of. Descamps
v. U.S., 570 U.S. 254, 267–68 (2013). In Shepard v. U.S., 544 U.S. 13 (2005) the Court modified the
categorical approach adopted in Taylor and held that a court could consider a limited set of documents to
determine whether an ambiguous statute would nevertheless be considered a generic crime in the context
of the specific case. In Descamps v. U.S., 570 U.S. 254 (2013)the Court provided a narrow reading of the
modified categorical approach. In rejecting the Ninth Circuit’s approach in U.S. v. Aguila-Montes de Oca,
655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam) and other cases that permitted the modified
categorical approach where an indivisible statute was overbroad, the Court held that the modified
categorical approach will not apply “when the crime of which the defendant was convicted has a single,
individual set of elements.” The Court rejected what it regarded as an effort to circumvent the categorical
approach by an inquiry into facts and held the modified approach has limited utility only to effectuate the
categorical approach “when a divisible statute, listing potential offense elements in the alternative, renders
opaque which element played a part in the defendant’s conviction.” 570 U.S. at 260. See also U.S. v.
Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) [Cal. Health & Safety Code §11352(a) is divisible
under Mathis and under modified categorical approach defendant was convicted of drug trafficking
offense]; Almanza-Arenas v. Lynch, 815 F.3d 469, 475-82 (9th Cir. 2015, amended 2016) (en banc) [in
determining whether a statute is indivisible and that there is only one reading of the statute, a court can
look to the record of conviction (Shepard) documents to determine how the statute is employed]; Aguilar-
Turcios v. Holder, 740 F.3d 1294 (9th Cir. 2014) [court martial under Article 92 of the Uniform Code of
Military Justice for failure to comply with a lawful general order regarding the improper use of a computer
for pornography is not categorically an aggravated felony and under Descamps there is no divisible
statute requiring a modified categorical approach that would permit an inquiry into child pornography];
Rojas v. U.S. Att’y Gen., 728 F.3d 203, 214-215 (3d Cir. 2013) (en banc) [in paraphernalia case the court
following Moncrieffe and Descamps rejected the modified categorical approach because it found that 35
Pa. Cons. Stat. §780-113(a)(32)was not a divisible statute and as it encompassed drugs that were not
within the federal definition respondent was not removable]; Sanchez-Avalos v. Holder, 693 F.3d 1011,
1014-19 (9th Cir. 2012) [under modified categorical approach the documents must demonstrate that the
conviction necessarily rested upon an element of the aggravated felony; under Cal. Penal Code §243.4(a)
for touching an intimate part of another person the plea did not require a determination of the victim’s age
thereby barring a sexual abuse of minor finding]; Larin-Ulloa v. Gonzales, 462 F.3d 456, 463–65 (5th Cir.
2006) [describing the categorical and modified categorical approach and finding that Kansas aggravated
battery was not a COV].The existence of an affirmative defense, does not trigger the modified categorical
approach where the government need not prove an element required to make a conviction an aggravated
felony. Donawa v. U.S. Att’y Gen., 735F.3d 1275 (11th Cir. 2013) [applying Moncrieffe and Descamps and
finding that Fla. Stat. §893.13(1)(a)(2) as amended by Fla. Stat. §893.101 is not a drug trafficking felony
because it no longer contains a mens rea element and the existence of an affirmative defense regarding
lack of knowledge does not trigger the modified categorical approach]; Sarmientos v. Holder, 742 F.3d 624
(5th Cir. 2014) [same]. But see Swaby v. Yates, 847 F.3d 62, 66-69 (1st Cir. 2017) [if a state statute
encompasses a wider array of scheduled drugs than the federal government, the statute will be
considered divisible and the modified categorical approach applies where a state treats each specific
listed drug as an element of a separate crime]; Ruiz-Vidal v. Lynch, 803 F.3d 1049 (9th Cir. 2015) [plea to
lesser included offense of possession of a controlled substance where initial offense was sale of
methamphetamines was sufficient to find under modified categorical approach that respondent was
convicted of drug crime]; U.S. v. Huitron-Rocha, 771 F.3d 1183 (9th Cir. 2014) [followed Coronado in
sentencing context regarding prior conviction for Cal. Health & Safety Code §11351(a)]; Medina-Lara v.
Holder, 771 F.3d 1106, 1112-19 (9th Cir. 2014) [following Coronado in regard to modified categorical
approach under Cal. Health & Safety Code §11351 but holding that where charge says cocaine but
abstract only records “controlled substance” that government failed to prove by clear and convincing
evidence that conviction is for aggravated felony or drug crime]; Contreras v. Holder, 754 F.3d 286, 291-92
(5th Cir. 2014) [utilizing the modified categorical approach in finding abuse of a Page 334 minor under Va.
Code. Ann. §18.2-63 because the statute had multiple crimes set forth as multiple elements]; Coronado v.
Holder, 759 F.3d 977, 982-86 (9th Cir. 2014) [holding that under Descamps, California drug possession
statute is overbroad, as most but not all of the substances covered are federally controlled, but also
divisible so that factfinder could use modified categorical approach to determine under which portion of
the California statute the respondent had pleaded guilty]; Alvarado v. Holder, 759 F.3d 1121, 1130-31 (9th
Cir. 2014) [applied modified categorical approach even where government conceded that Arizona’s
definition of dangerous drug is broader that federal definition of controlled substance]; Cadapan v. U.S.
Att’y Gen., 749F.3d 157 (3d Cir. 2014) [modified categorical approach is unnecessary where all conduct
covered by the statute is an aggravated felony]. Under the modified categorical approach “the government
must establish that the prior conviction necessarily involved, and the allowable documents necessarily
establish, facts equating to the generic crime.” Renteria-Morales v. Mukasey, 551 F.3d at 1085–86
[insufficient for the government to offer reasonable inferences based upon the record of conviction where
the record did not necessarily admit all elements of the generic crime]; Singh v. U.S. Att’y Gen., 839 F.3d
273 (3d Cir. 2016) [under modified categorical approach conviction under 35 Pa. Cons. Stat. §780-113(a)
(30), a plea to possession with intent to deliver a counterfeit substance under Penn. law but not under
federal law was not an aggravated felony]. The Court’s ruling in Descamps controls the application of the
modified categorical approach in immigration proceedings. Flores v. Holder, 779 F.3d 159, 165-66 (2d Cir.
2015) [noting that the BIA’s analysis in Matter of Lanferman is no longer good law in light of Descamps
and joining other circuits in recognizing Descamps controls immigration cases]; Mathis v. U.S., 579 U.S.
__, 136 S.Ct. 2243, 2251 n.2 (2016).
9.d. The Shepard Documents—If a case is subject to the modified categorical approach, the court must
decide what documents may prove that the conviction is an aggravated felony. It is not a fact based
inquiry because the parties may only address whether the conviction is for the generic crime. Id. In
Shepard v. U.S., 544 U.S. 13 (2005), the Court stated that the documents that may be considered when
analyzing a ‘generic’ conviction under the modified categorical approach are: “the charging document,
written plea agreement, transcript of plea colloquy, and any explicit findings by the trial judge to which the
defendant assented.” Shepard v. U.S., 544 U.S. at 16. See also Johnson v. U.S., 559 U.S. 133, 145
(2010) [in the context of Florida’s simple battery statute, the Court, post-Nijhawan, maintained the
limitations imposed by Shepard noting that“[i]t may well be true, as the Government contends, that in
many cases state and local records for battery convictions will be incomplete.”].
(1) Lower Court Approach to Documents Under the Modified Categorical Approach—Francisco v. U.S.
Att’y Gen., 884 F.3d 1120, 1123 n.4 (11th Cir. 2018) [in dicta suggesting that all documents
enumerated under INA §240(c)(3)(B) may constitute Shepard documents because they are “judicially
noticeable” documents]; Ruiz-Vidal v. Lynch, 803 F.3d 1049 (9th Cir. 2015) [plea to lesser included
offense of possession of a controlled substance where initial offense was sale of methamphetamines
was sufficient to find under modified categorical approach that respondent was convicted of drug
crime]; Medina-Lara v. Holder, 771 F.3d 1106, 1112-19 (9th Cir. 2014) [following Coronado in regard to
modified categorical approach under Cal. Health and Safety Code §11351 but holding that where
charge says cocaine but abstract only records “controlled substance” that ICE failed to prove by clear
and convincing evidence that conviction is for aggravated felony or drug crime]; Karimi v. Holder, 715
F.3d 561, 568-70 (4th Cir. 2013) [although the court recognized that the police officer’s probable cause
statement incorporated into the charging document must be considered a Shepard approved
document, its “one-sided” view of facts did not trump the defendant’s plea colloquy]; Cheuk Fung S-
Yong v. Holder, 600 F.3d 1028, 1034-36 (9th Cir. 2009, amended 2010) [limiting documents to a
narrow specified set in modified categorical approach]; Renteria-Morales v. Mukasey, 551 F.3d 1076,
1085–86 (9th Cir. 2008) [under modified categorical approach, government’s reasonable inferences
from the record of conviction were insufficient because the record must necessarily establish the
aggravated felony]; Evanson v. U.S. Att’y Gen., 550 F.3d 284 (3d Cir. 2008) [modified categorical
approach did not establish conviction under 35 Pa. Cons. Stat. §780-113(a)(30) was a drug trafficking
aggravated felony because there was no proof of remuneration or more than a Page 335 small amount
of marijuana]; James v. Mukasey, 522 F.3d 250, 255–59 (2d Cir. 2008) [remanding to determine
whether N.Y. Penal Law §260.10, endangering the welfare of a child, was divisible and noting that only
matters “actually and necessarily pleaded” could be used under modified categorical approach]; Omari
v. Gonzales, 419 F.3d 303 (5th Cir. 2005) [conspiracy under 18 USC §371 to violate 18 USC §2314 is
divisible, and the documents in evidence suggested a nonfraud crime of possession of illegal airline
tickets]. See also Rosas-Castaneda v. Holder, 630 F.3d 881 (9th Cir. 2011) overruled on other grounds,
Young v. Holder, 697 F.3d 976, 989-92 (9th Cir. 2012) (en banc) [Ariz. Rev. Stat. §13-3405 contains
solicitation offenses because it includes the “offer” to transport marijuana for sale]; Soliman v.
Gonzales, 419 F.3d 276, 284–86 (4th Cir. 2005) [fraudulent use of a credit card under Va. Code §18.2-
195 is not a theft offense]; Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) [3rd degree unlawful sexual
conduct under 11 Del. Code §767 is not sexual abuse of a minor]; U.S. v. Pallares-Galan, 359 F.3d
1088, 1099 (9th Cir. 2004); U.S. v. Calderon-Pena, 339 F.3d 320, 327–30 (5th Cir. 2003) [based upon
indictment, conviction for child endangerment under Tex. Penal Code Ann. §22.041(c) is a COV];
Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003) [Conn. Gen. Stat. §21a-277(a) is an aggravated felony,
although use of categorical approach was complicated by respondent’s Alford plea, in which he did not
admit the facts of the plea]; see also Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999)[BIA looks to
elements of the offense not to the underlying facts]; Matter of B-, 21 I&N Dec. 287, 289 (BIA 1996)
[BIA looks to the “statutory definition, not the underlying circumstances of the crime”].
9.e. The Nijhawan Exception to Shepard—However, in Nijhawan v. Holder, 557 U.S. 29, 37-43 (2009), the
Court rejected the documentary limitation for certain “circumstance specific” removal grounds and found
that the limitation on documentation in Shepard may not apply to the analysis of all aggravated felonies,
depending on the statutory language in a given aggravated felony provision. Under Nijhawan, although
subparagraphs (A)–(C) and (E), (H)–(J), (L) may be subject to the documentary and evidentiary limitations
under Shepard, other aggravated felonies such as (P), (K)(ii) and (M)(i) & (ii) have elements that are
“circumstance-specific” and therefore are not amenable to the documentary limitations because of the
language Congress employed in those specific aggravated felony grounds. Convictions charged as
aggravated felonies under these grounds may be proven through means outside of the Shepard
documents. For example, subparagraph (P) has an exception to falsely making passports where the
person committed the offense for the purpose of assisting certain family members. If the exception has
any meaning it “must refer to the particular circumstances in which an offender committed the crime on a
particular occasion,” Nijhawan, 557 U.S. at 38 and therefore the proof would not be limited to modified
categorical documents under Shepard but include any admissible evidence “tied to the specific counts
covered by the conviction.” Similarly, the Court viewed the requirement in subsection (K)(ii) that the crime
be “committed for commercial advantage” as circumstance specific, as it did the requirements in
subsection (M)(i) and (M)(ii) that the fraud or deceit crime result in a “loss to the victim in excess of
$10,000.” Nijhawan, 557 U.S. at 38-41. Subsequent to Nijhawan, the Court in Carachuri-Rosendo v.
Holder, 560 U.S. 563, 576-77 n.11, 580 (2010) clarified that Nijhawan is limited to cases where the
applicable aggravated felony provision contains language that permits application of the “circumstance-
specific” approach, and cannot not be extended to aggravated felony and other removability provisions
that do not contain that expansive language and depend on the statutory term “conviction.” The Court
distinguished circumstance-specific crimes from generic categories of aggravated felonies such as illicit
trafficking, for which only a categorical approach might be appropriate. And in Moncrieffe v. Holder, 569
U.S. 184 (2013), the Court determined that the misdemeanor exception for distribution of marijuana under
the Controlled Substances Act, 21 USC §841(b)(4) is not a circumstance-specific matter to be proved
because it is a generic part of the statute, and failure to demonstrate through the categorical approach
that the conviction was for distribution of an amount that would render it a felony, means the respondent is
not an aggravated felon. In Mellouli v. Lynch, 575 U.S. __, 135 S.Ct. 1980, 1986 n.3 (2015) the Court
further narrowed Nijhawan recognizing that the exception arose because “[a]s categorically interpreted
[INA §101(a)(43)] (M)(ii), the tax evasion provision would have no application and (M)(i), the fraud Page
336 and deceit provision, would apply only in an extraordinary limited and haphazard manner” [because
no widely applicable federal fraud statute contained a relevant monetary threshold and most states had no
similar statute].
Considering Nijhawan the 2nd Circuit has determined that a firearms conviction under INA §242(a)(2)(C)
is a “generic” crime and not “circumstance-specific” and therefore Nijhawan does not permit the use of
other than Shepard documents to establish a deportable offense under the modified categorical approach
where a statute of conviction is divisible. Lanferman v. BIA, 576 F.3d 84, 89 n.3 (2d Cir. 2009) [divisibility
of a statute alone does not trigger Nijhawan circumstance–specific requirement]. Similarly, the Third
Circuit found that Nijhawan isinapplicable to drug crimes. Thomas v. U.S. Att’y Gen., 625 F.3d 134, 144
n.4 (3d Cir. 2010) [rejecting use of a police report] as did the Ninth Circuit in the context of cancellation of
removal. Young v. Holder, 697 F.3d 976, 9 (9th Cir. 2012) (en banc) [rejecting circumstance specific
approach to determine whether a drug trafficking crime barred cancelation of removal]; Matter of
Gruenangerl, 25 I&N Dec. 351, 357-58 (BIA 2010) [Nijhawan’s circumstance specific analysis broadening
the categorical approach does not apply to INA §101(a)(43)(R)]. But see Garcia-Hernandez v. Boente,
847 F.3d 869 (7th Cir. 2017) [rejecting the categorical approach and focusing on the state court’s factual
determination of whether person violated a protection order in determining a deportable offense under INA
§237(a)(2)(E)(ii)]; Fuentes v. Lynch, 788 F.3d 1177 (9th Cir. 2015) [because a conviction for money
laundering in violation of 18 USC §1956(h) qualifies as an aggravated felony under INA §101(a)(43)(D) if
“the amount of funds exceeded $10,000” the BIA, pursuant to Nijhawan, may rely on the Presentence
Report (PSR) to establish the amount of the funds]; U.S. v. Ramos-Medina, 706 F.3d 932, 939-40 (9th Cir.
2013) [where a defendant stipulates during his plea colloquy that other documents, such as a probation
report or a police report, contain the factual basis for the plea, the court may consider those documents in
the modified categorical approach]; Varughese v. Holder, 629 F.3d 272 (2d Cir. 2010) [conviction under 18
USC §1956(a)(3)(B) is an aggravated felony under INA §101(a)(43)(D) relating to money laundering and
the circumstance specific approach in Nijhawan was applicable to prove the amount in excess of
$10,000]; U.S. v. Guzman-Mata, 579 F.3d 1065, 1069–75 (9th Cir. 2009) [in sentencing case, the court
found that the family exception under the alien smuggling provision of INA §101(a)(43)(N) is not an
element of the offense and that under Nijhawan the defendant may use extra-record facts to prove the
exception].
BIA Circumstance-Specific Approach—Matter of Calcano De Millan, 26 I&N Dec. 904, 910-911 (BIA 2017)
[followed Matter of Introcaso and held that the circumstance-specific approach was appropriate for
purposes of the Adam Walsh Act for a conviction for sexual battery by restraint in violation of Cal. Penal
Code §243.4(a)]; Matter of Garza-Olivares, 26 I&N Dec. 736 (BIA 2016) [in assessing whether an offense
qualifies as an aggravated felony under INA §101(a)(43)(T) the categorical approach applies to decide if
the offense relates to an alien’s failure to appear before a court, but Nijhawan’s circumstance specific
approach applies to determine if the failure to appear was (1) pursuant to a court order; (2) to answer to or
dispose of a charge of a felony; and (3) for which a sentence of 2 years’ imprisonment or more may be
imposed]; Matter of Introcaso, 26 I&N Dec. 304, 307-10 (BIA 2014) [rejecting categorical approach and
applying the circumstance specific approach in Nijhawan to Adam Walsh Act’s prohibition against
approving K-1 or immigrant visa petitions]; Matter of Davey, 26 I&N Dec. 37, 39 (BIA 2012) [holding that
the circumstance-specific approach applies to the 30 grams of marijuana exception to deportability found
in INA §237(a)(2)(B)(i)]. The BIA and some federal circuits also support a circumstance specific approach
following U.S. v. Hayes, 555 U.S. 415 (2009)and Nijhawanto determine whether a crime is a “domestic
violence” deportable offense under INA §237(a)(2)(E)(i). Matter of H. Estrada, 26 I&N Dec. 749, 750-54
(BIA 2016) [circumstance-specific approach and use of police report appropriate in charge under INA
§237(a)(2)(E)(i)]; Matter of Milian, 25 I&N Dec. 197, 200 (BIA 2010) [a police report can be considered
under the modified categorical approach in proving that Cal. Penal Code §243(e)(1) is a crime of violence
where the report was prepared in connection with the arrest and was stipulated to in writing as the basis
for the guilty plea]; Hernandez-Zavala v. Lynch, 806 F.3d 259 (4th Cir. 2015) [relying on the “circumstance
specific” approach under U.S. v. Hayes and Nijhawan and finding that assault with a deadly weapon in
violation of N.C. Gen. Stat. §14-33(c)(1) is a crime of domestic violence]; Blanco v. Holder, 624 F.3d 265,
272 (5th Cir. 2010) [relying on U.S. v. Hayes and Nijhawan the court determined that a crime of domestic
violence “need not have as an element the domestic relation of the Page 337 victim to the defendant” and
that the government can prove the domestic relationship using evidence beyond the Shepard documents
to the “kind of evidence generally admissible before an immigration judge”].
9.f. Analyzing Crimes Under BIA’s Categorical Approach
(1) In General—In light of the Supreme Court’s decision in Descamps, the BIA has now rejected its
former analysis in Matter of Lanferman, 25 I&N Dec. 721, 727-28 (BIA 2012) that divisibility exists
“regardless of their structure, so long as they contain an element or elements that could be satisfied
either by removable or nonremovable conduct.” See also Matter of Chairez, 26 I&N Dec. 819 (BIA
2016) (Chairez III) [BIA following Descamps and Mathis regarding divisibility]. See discussion in this
section, at ¶ V.I.9.a(6)(a) (p.329), supra, regarding BIA’s approach.
In drug trafficking cases, the BIA has found that the elements of the respondent’s offense must
correspond to the elements of an offense “that carries a maximum term of imprisonment of more than
1 year” and that any aggravating fact (other than a prior conviction) that increases the penalty is
considered an element of the crime only if it must be submitted to a jury and proved beyond a
reasonable doubt on the fewest facts necessary for a conviction. Matter of Aruna, 24 I&N Dec. 452,
455–57 (BIA 2008) Therefore, under the BIA’s view of the categorical approach you do not look at the
offense that carries the least penalty, but rather the crime that may be proved on the fewest facts. This
view has also been expressly rejected by the Supreme Court in Moncrieffe v. Holder, 569 U.S. 184,
195–202 (2013). In Moncrieffe the Court rejected the approach in Aruna and in Matter of Castro
Rodriguez, 25 I&N Dec. 698 (BIA 2012) that the default was to the felony under the categorical
approach and the respondent had to prove he fell under the misdemeanor distribution exception of 21
USC §841(b)(4). Refusing to “discount §841’s text” as a whole, the Court determined that the
categorical inquiry is “whether the record of conviction of the predicate offense necessarily established
conduct that [makes the crime] punishable as a felony.” The court rejected analogies to federal
prosecutions of proving cases based upon the fewest facts, noting that in a categorical analysis “we
consider a ‘generic’ federal offense in the abstract, not an actual federal offense being prosecuted
before a jury.” “Our concern,” the Court wrote, “is only which facts the CSA relies upon to distinguish
between felonies and misdemeanors, not which facts must be found by a jury as opposed to a judge,
nor who has the burden of proving which facts in a federal prosecution.” Moncrieffe, 569 U.S. at 196-
99.The Court in Descamps v. U.S., 570 U.S. 254 (2013) also recognizes that only divisible and not
overbroad statutes may be subject to the modified categorical approach as all other methods will
require a factual inquiry not permitted under the categorical approach. See also Silva-Trevino v. Holder,
742 F.3d 197 (5th Cir. 2014) [rejecting the AG’s former analysis in Silva-Trevino that extrinsic evidence
may be used to determine a CIMT in light of the longstanding use of the categorical approach]; U.S. v.
Gomez, 757 F.3d 885, 902-09 (9th Cir. 2014) [because attempted sexual contact with a minor under
the age of 15 under Ariz. Rev. Stat. 13-1405 is missing a constitute element for statutory rape it is not
categorically a COV and under Descamps there is no need to make further inquiry]; Martinez v.
Mukasey, 551 F.3d 113, 122 (2d Cir. 2008); Wilson v. Ashcroft, 350 F.3d 377, 382 (3d Cir. 2003) and
Steele v. Blackman, 236 F.3d 130, 137 (3d Cir. 2001), See also generally Matter of Palacios, 22 I&N
Dec. 434 (BIA 1998) and Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994) for the Board’s treatment
generally of aggravated felony issues.
(2) The BIA’s Approach on Documents Under the Modified Categorical Approach—In Matter of
Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007), the Board determined that when an aggravated felony
includes a component that is neither an element of the underlying offense nor a basis for a sentence
enhancement, the IJ may look outside the record of conviction to determine whether the INA definition
of the aggravated felony has been met. In Gertsenshteyn the Board addressed whether respondent
committed an aggravated felony under INA §101(a)(43)(K)(ii) which required a conviction under certain
statutes “if committed for commercial advantage.” The BIA determined that the limited documentary
inquiry under Shepard was appropriate to determine whether a conviction had occurred, but that a
broader inquiry, including the use of “the presentence report, the respondent’s own admissions, and
Page 338 any other relevant evidence pertaining to aspects of the criminal conviction” could be used
to determine whether the crime was “committed for commercial advantage.” Similarly, in Matter of
Babaisakov, 24 I&N Dec. 306, 319–21 (BIA 2007) the Board held that to determine whether the
amount of loss to the victim exceeded $10,000 where the charge of deportation is based upon a fraud
conviction, the IJ may not only rely on restitution orders, presentence reports, and admissions during
plea colloquies but may also use “any evidence, otherwise admissible in removal proceedings,
including witness testimony” and “testimonial admissions of the respondent made during the removal
hearing.” See also Matter of Calcano De Millan, 26 I&N Dec. 904, 910-911 (BIA 2017) [where the
circumstance specific approach was appropriate for purposes of the Adam Walsh Act for a conviction
for sexual battery by restraint in violation of Cal. Penal Code §243.4(a) the BIA relied on the
petitioner’s own investigative report noting that victim was a minor as well as petitioner’s failure to
rebut inference where original dismissed charges all involved minor]; Matter of Milian, 25 I&N Dec.
197, 200 (BIA 2010) [a police report can be considered under the modified categorical approach in
proving a crime of violence to establish deportation under the provision for a crime of domestic
violence where the report was prepared in connection with the arrest and was stipulated to in writing
as the basis for the guilty plea]. However, this broad reading may now be circumscribed by the Court’s
decision in Nijhawan, 557 U.S. at 42 that the evidence must be “tethered to the conviction.” It may also
be a nullity in light of the Court’s decision in Descamps v. U.S., 570 U.S. 254 (2013).The Board’s
approach that IJs may rely on other evidence to prove elements of the offense that are not part of the
predicate crime appears to be seriously undermined by the Court’s decision in Descamps v. U.S.,570
U.S. 254 (2013), where the Court found it inappropriate to make a factual inquiry when the statute was
indivisible, even if overbroad [“The key, we emphasized, is elements [of the crime] not facts”].
Descamps, 570 U.S. at 261. Accord. Hamilton v. Holder, 584 F.3d 1284 (10th Cir. 2009) [post-
Nijhawan finding that review of PSR was permissible to establish loss in excess of $10,000 and
therefore ineligibility for cancellation]; Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) [following Matter of
Babaisakovand reinterpreting its own precedent post–Brand X, the BIA may rely on the presentence
investigation report to establish a CIMT because “when deciding how to classify convictions under
criteria that go beyond the criminal charge–such as the amount of the victim’s loss, or whether the
crime is one of ‘moral turpitude’ the agency has discretion to consider evidence beyond the charging
papers and judgment of conviction”]. See also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) and
Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).
9.g. Documents to Prove Conviction—Efforts by the government to use documents other than those
specified in Shepard v. U.S., 544 U.S. 13, 21-23 (2005)have in some cases met resistance in the federal
courts, although post-Nijhawan the lower courts may permit the use of other documents when it involves a
circumstance specific approach:
(1) Statements in a Brief—Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) [cannot rely on
statements in respondent’s brief to support intent].
(2) Presentence Investigative Reports (PSI); Probation Report—Penuliar v. Mukasey, 528 F.3d 603, 611
(9th Cir. 2008) [rejecting IJ reliance on probation report to establish COV]; Dulal-Whiteway v. DHS, 501
F.3d 116, 123–34 (2d Cir. 2007) [in conviction for fraudulently trafficking in unauthorized access
devices under 18 USC §1029(a)(2), cannot rely on PSR and restitution order to prove loss to the
victim]; Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. 2003) [affirming Huerta-Guevara; PSI
cannot be used to establish that a divisible statute is an aggravated felony]; Conteh v. Gonzales, 461
F.3d 45, 57–59 (1st Cir. 2006) [cannot rely on respondent’s after-the-fact statements or PSI report];
Dickson v. Ashcroft, 346 F.3d 44, 53 n.1 (2d Cir. 2003) [where statute is divisible cannot use narrative
facts in PSI to determine whether NY unlawful imprisonment is a COV]; Lara-Chacon v. Ashcroft, 345
F.3d 1148, 1151–54 (9th Cir. 2003) [cannot use PSI to determine that AZ money laundering is a drug
trafficking crime]; Chang v. INS, 307 F.3d 1185 (9th Cir. 2002) [BIA cannot use PSI to contradict plea
agreement that clearly demonstrated that the $10,000 threshold amount for aggravated felony fraud
was not met]; but see Fuentes v. Lynch, 788 F.3d 1177 (9th Cir. 2015) [because a conviction for money
laundering in violation of 18 USC §1956(h) qualifies as an aggravated felony under INA §101(a)(43)(D)
if “the amount of funds exceeded Page 339 $10,000” the BIA, pursuant to Nijhawan, may rely on the
Presentence Report (PSR) to establish the amount of the funds]; U.S. v. Ramos-Medina, 706 F.3d 932,
939-40 (9th Cir. 2013) [where a defendant stipulates during his plea colloquy that other documents,
such as a probation report or a police report, contain the factual basis for the plea, the court may
consider those documents in the modified categorical approach]; Kaplun v. U.S. Att’y Gen., 602 F.3d
260, 266 (3d Cir. 2010) [finding that allegations in charging document coupled with uncontroverted
statements in presentencing report constituted clear and convincing evidence of $10,000 loss];
Hamilton v. Holder, 584 F.3d 1284 (10th Cir. 2009) [post-Nijhawan finding that review of PSR was
permissible to establish loss in excess of $10,000 and therefore ineligibility for cancellation]; Arguelles-
Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008) [can use PSI to establish amount of loss].
(3) Stipulation in Plea Agreement—Kawashima v. Holder, 593 F.3d 979 (9th Cir. 2010), aff’d on other
grounds, 565 U.S. 478(2012)[post-Nijhawan, finding defendant’s stipulation in the plea agreement to a
loss of $245,126 was sufficient to prove amount of loss].
(4) Sentence-Report—The Report-Indeterminate Sentence under California law has been found to be a
“Shepard” document because it is a comparable judicial record prepared and signed by a deputy clerk
of court. U.S. v. Benitez-De Los Santos, 650 F.3d 1157, 1160 (8th Cir. 2011) [followed Castro v. Holder,
340 F.App’x 410, 412 (9th Cir. 2009)].
(5) Notations Regarding Special Sentencing Factors—Larin-Ulloa v. Gonzales, 462 F.3d 456, 468–69
(5th Cir. 2006) [cannot refer to special sentencing factor notation in Kansas journal entry form to
determine conviction for aggravated battery was a COV].
(6) Police Reports—Matter of Sanudo, 23 I&N Dec. 968, 974–75 (BIA 2006) [where factual narrative of
the police report was not incorporated into the charging document or the plea, it could not be
considered in determining whether California domestic battery is an aggravated felony]; Karimi v.
Holder, 715 F.3d 561, 568-70 (4th Cir. 2013) [although the court recognized that the police officer’s
probable cause statement incorporated into the charging document must be considered a Shepard
approved document, its “one-sided” view of facts did not trump the defendant’s plea colloquy];
Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) [police report could not be relied upon under
Shepard to prove that petitioner’s conviction under Va. Code Ann. §18.2-371 regarding contributing to
the delinquency of a minor was a CIMT]; Thomas v. U.S. Att’y Gen., 625 F.3d 134, 143-48 (3d Cir.
2010) [a police report of a misdemeanor is not an indictment or information under N.Y. Crim. Proc. Law
§100.10 for purposes of Shepard and therefore cannot be relied upon under the modified categorical
approach]; Wala v. Mukasey, 511 F.3d 102, 107–10 and n.5 (2d Cir. 2007) [BIA may rely only on facts
to which petitioner “necessarily pleaded,” cannot rely on police report to demonstrate plea]; but see
Matter of Milian, 25 I&N Dec. 197, 200 (BIA 2010) [a police report can be considered under the
modified categorical approach in proving a crime of violence to establish deportation under the
provision for a crime of domestic violence where the report was prepared in connection with the arrest
and was stipulated to in writing as the basis for the guilty plea]; Matter of H. Estrada, 26 I&N Dec. 749,
750-54 (BIA 2016) [under circumstance-specific approach police report appropriate in domestic
violence charge under INA §237(a)(2)(E)(i)]; U.S. v. Ramos-Medina, 706 F.3d 932, 939-40 (9th Cir.
2013) [where a defendant stipulates during his plea colloquy that other documents, such as a
probation report or a police report, contain the factual basis for the plea, the court may consider those
documents in the modified categorical approach]; U.S. v. Almazan-Becerra, 537 F.3d 1094, 1096–1101
(9th Cir. 2008) [in sentencing for reentry after deportation, can rely on police report to prove underlying
aggravated felony where defendant stipulated that it contained a factual basis for his guilty plea].
(7) Documents Incorporated into Plea Colloquy/Agreement—Alvarado v. Holder, 759 F.3d 1121, 1132-33
(9th Cir. 2014) [over respondent’s objection that he never agreed to statement attached to plea
agreement 4 days after the plea, it was sufficient to carry burden that respondent was convicted of
attempted possession of methamphetamine an aggravated felony]; U.S. v. Ramos-Medina, 706 F.3d
932, 939-40 (9th Cir. 2013) [where defendant stipulates during plea colloquy that other documents,
such as a probation report or a police report, contain the factual basis for the plea, the court may
consider those documents in the modified categorical approach]. But see U.S. v. Solano-Hernandez,
847 F.3d 170, 177-78 (5th Cir. 2017) [where a “Reasons for Page 340 Sentence” was attached to the
judgment describing the circumstance surrounding the offense they could not be used under modified
categorical approach because the defendant never assented to them].
(8) Abstract of Judgment or Minute Order—Medina-Lara v. Holder, 771 F.3d 1106, 1112-19 (9th Cir.
2014) [following Coronado in regard to modified categorical approach under Cal. Health & Safety Code
§11351 but holding that where charge says cocaine but abstract only records “controlled substance”
that ICE failed to prove by clear and convincing evidence that conviction is for aggravated felony or
drug crime]; Duenas-Alvarez v. Holder, 733 F.3d 812, 814 (9th Cir. 2013) [relying on U.S. v.
Snellenberger, Cabantac v. Holder and U.S. v. Valdavinos-Torres, the court may rely on abstract of
judgment or minute order in applying modified categorical approach]; Coronado v. Holder, 759 F.3d
977, 985-86 (9th Cir. 2014) [same on theory that the court may rely on “equally reliable” documents to
those specified in Shepard].
(9) Respondent’s After-the-Fact Statements—Conteh v. Gonzales, 461 F.3d 45, 57–59 (1st Cir. 2006)
[not permissible]. But see Suazo Perez v. Mukasey, 512 F.3d 1222, 1226–27 (9th Cir. 2008) [police
report could be utilized where defendant checked a box on his plea that stated he agreed that “the
court may review the police reports and/or statement of probable cause supplied by the prosecution to
establish a factual basis of the plea”]; Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) [allowing evidence
outside the record to establish age of victim]. Similarly, the IJ/BIA may not infer a conviction from the
charges when respondent pleaded to something different. See e.g., Cisneros-Perez v. Gonzales, 465
F.3d 386, 392–94 (9th Cir. 2006) [an inference cannot not be drawn from charges of domestic violence
when respondent pleaded to simple battery and no document identified the victim as respondent’s
wife]; Martinez-Perez v. Ashcroft, 417 F.3d 1022, 1028–29 (9th Cir. 2005) [cannot rely on “facts” of the
information to determine that grand theft under Cal. Penal Code §487(c) was a theft offense as
generically defined where the plea was a different offense than the one charged in the information];
Sareang Ye v. INS, 214 F.3d 1128, 1133 (9th Cir. 2000) [may “look to charging paper and judgment of
conviction to determine if the actual offense that defendant was convicted of qualifies as a crime of
violence.”]. Cf. Parrilla v. Gonzales, 414 F.3d 1038, 1042–44 (9th Cir. 2005) [allowing the use of a
certificate for determination of probable cause (CDPC) to establish Wash. Rev. Code §9.68A.090,
communicating with a minor was an aggravated felony because the CDPC was expressly incorporated
in respondent’s guilty plea]; Iysheh v. Gonzales, 437 F.3d 613 (7th Cir. 2006), [a person who had a
corrected judgment identifying his offense as a non–aggravated felony, but who pleaded guilty to a
count that included fraud, did commit an aggravated felony]; U.S. v. Lopez-Patino, 391 F.3d 1034,
1036–38 (9th Cir. 2004) [child abuse under Ariz. Rev. Stat. §13-2623(C), is not per se a COV, but
under modified categorical approach defendant admitted a COV in the plea]. The First Circuit has
taken the position that the IJ/BIA may also rely on documents specified in 8 USC §1229a(c)(3)(B)(ii)
[the plea, verdict and sentence] and §1229a(c)(3)(B)(iii) [docket entries from court records]. In
Pagayon v. Holder, 675 F.3d 1182, 1189-90 (9th Cir. 2012) the Ninth Circuit relied on a pleading stage
admission to establish, under the modified categorical approach, that the crime was a drug conviction
for a controlled substance. The information charged the petitioner with possession of a controlled
substance but the abstract of judgment stated that he was only convicted of a drug crime. The court
held that the IJ could use the admission when the Shepard documents were inconclusive to establish
that it was a conviction for a controlled substance. The court found that a violation of Cal. Health &
Safety Code §11377(a) was a crime for possession of a controlled substance—methamphetamines.
(10) Alford or Other Plea of Convenience—For effect of Alford plea, see in this chapter, ¶ VI.C.4 (p.362),
infra.
(11) Judgment of Sentence—At least one circuit has held that the IJ may not look to factual statements
made in the judgment of sentence because they go to sentencing not conviction. Evanson v. U.S. Att’y
Gen., 550 F.3d 284, 292–93 (3d Cir. 2008) [documents allowed under modified categorical approach
did not establish that conviction under 35 Pa. Cons. Stat. §780-113(a)(30) Page 341 was a drug
trafficking aggravated felony because there was no proof of remuneration or more than a small amount
of marijuana]. Another circuit has held that to identify the generic offense when the record contains
only the indictment and judgment, the judgment must contain the phrase “as charged in the
Information.” Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir. 2009).
(12) Charging Document Limited Solely to Counts of which Respondent was Convicted—The Supreme
Court in Nijhawan v. Holder, 557 U.S. 29 (2009) precluded a factfinder from considering evidence of
dismissed counts in determining whether an offense is an aggravated felony. See also Evanson v. U.S.
Att’y Gen., 550 F.3d 284, 292–93 (3d Cir. 2008) [court may not look to counts in the complaint that
respondent was not actually convicted of after plea or trial]. But see Ruiz-Vidal v. Lynch, 803 F.3d 1049
(9th Cir. 2015) [plea to lesser included offense of possession of a controlled substance where initial
offense was sale of methamphetamines was sufficient to find under modified categorical approach that
respondent was convicted of drug crime].
(13) Documents After Trial—If a person is convicted after trial (not by a plea) and there is no verdict form
or jury instructions to demonstrate a finding regarding an element of the aggravated felony statute, the
submission of an indictment and a judgment will not be sufficient. U.S. v. Corona-Sanchez, 291 F.3d
1201, 1211 (9th Cir. 2002) (en banc) [supporting a modified categorical approach but limiting the
documents to provide evidence of conviction as follows: “In the case of a jury trial, the charging
document and jury instructions from the prior offense may demonstrate that the ‘jury was actually
required to find all the elements’ of the generic crime. Similarly, if a defendant enters a guilty plea, the
sentencing court may consider the charging documents in conjunction with the plea agreement, the
transcript of a plea proceeding, or the judgment to determine whether the defendant pleaded guilty to
the elements of the generic crime. Charging papers alone are never sufficient. However, charging
papers may be considered in combination with a signed plea agreement.”]. But see Nijhawan v.
Holder, 557 U.S. 29, 37-41 (2009) [rejecting argument that accepting other proof of a loss in excess of
$10,000 where jury verdict does not specify the amount of the loss violates the “beyond a reasonable
doubt” standard].
(14) Documents From Appeals Court—In James v. Holder, 698 F.3d 24, 28 (1st Cir. 2012) the court notes
that whether an appeals court decision in the same case could be used as a Shepard document “is an
unresolved question,” although it pointed to Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir. 2007).
9.h. Burden of Proof under the Categorical and Modified Categorical Approach—The categorical and
modified categorical approaches require the government to prove their case by clear and convincing
evidence. Berhe v. Gonzales, 464 F.3d 74, 85–87 (1st Cir. 2006) [DHS failed to put the first possession
conviction in the record, and where the record of the second possession conviction did not indicate that
the defendant was charged or pleaded to the first conviction as part of the second conviction, government
failed to prove that the second conviction was an aggravated felony by clear and convincing
evidence].However, when the applicant is seeking relief from removal, such as cancellation, the burden
shifts to him to prove that he has not been convicted of an aggravated felony by a preponderance of the
evidence. Where a statute is indivisible, the applicant meets her burden when the government fails to
establish deportability for an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 204 (2013) [explaining
that once an individual’s conviction is found not to be an aggravated felony for deportability purposes, the
person will be eligible for relief from removal]. Where the statute is divisible, the BIA takes the position that
the noncitizen’s burden is not met where the Shepard documents are inconclusive under the modified
categorical approach. Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009). The circuits are split on
this question. Compare Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016) [rejecting BIA decision in
Almanza-Arenas and applying Moncrieffe to hold that a respondent satisfies burden where record is
inconclusive]; Thomas v. U.S. Att’y Gen., 625 F.3d 134, 148 (3d Cir. 2010) [same]; Martinez v. Mukasey,
551 F.3d 113 (2d Cir. 2008) [same]; Salem v. Holder, 647 F.3d 111 (4th Cir. 2011) [inconclusive record
insufficient to meet burden]; Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) [same]; Lucio-Rayos v.
Sessions, 875 F.3d 573 (10th Cir. 2018) Page 342 [same]; with Gutierrez v. Sessions, 887 F.3d 770 (6th
Cir. 2018) [inconclusive record insufficient to meet burden]; Young v. Holder, 697 F.3d 976, 988-92 (9th
Cir. 2012) (en banc) [inconclusive record of conviction does not satisfy petitioner’s burden to establish
eligibility for cancellation of removal]; Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) [California’s
conspiracy statute, Cal. Penal Code §182(a)(1) was both overbroad and divisible and under the modified
categorical approach it was unclear whether respondent’s conviction was based upon transportation of a
scheduled drug; nevertheless the burden was on respondent to prove on an inconclusive record that her
conviction was not a drug conviction barring eligibility for cancellation]. Reversing Matter of Almanza-
Arenas, a panel of the Ninth Circuitruled in 2014 that Moncrieffe abrogated the reasoning in Young and
the Board’s reasoning in Almanza, but the en banc court, in reversing the Board, resolved the case on
other grounds. Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir.) reh’g en banc granted, 785 F.3d 366
(9th Cir.), amended and superseded, 815 F.3d 469 (9th Cir. 2015, amended 2016).
9.i. Beyond a Reasonable Doubt Standard—In Nijhawan v. Holder, 557 U.S. 29, 42-43 (2009) the Court
rejected the notion that the criminal standard applies in determining whether a crime is an aggravated
felony. Finding the appropriate standard to be “clear and convincing” the Court noted that a “deportation
proceeding is a civil proceeding in which the Government does not have to prove its claims ‘beyond a
reasonable doubt.’ ” See also Conteh v. Gonzales, 461 F.3d 45, 54–57 (1st Cir. 2006) [government was
not required to demonstrate that conspiracy under 18 USC §371 involved every element of the offense
enumerated under the aggravated felony statute, but was only required to show that the substantive crime
that was the conspiratorial objective was an aggravated felony].
10. Differences in Categorical Approach Between CIMTs and Aggravated Felonies—Findings that a crime
is not categorically a CIMT are not necessarily relevant to whether the offense is an aggravated felony. This
is because each aggravated felony and each CIMT has its own generic definition, requiring an individual
categorical approach comparison; but otherwise, the categorical and modified categorical approach apply to
both the CIMT and aggravated felony inquiry. Matter of Alvarado, 26 I&N Dec. 895, 902 n.12 (BIA 2016) [on
remand from the Ninth Circuit reaffirming that a conviction under Cal. Penal Code §118(a) is an aggravated
felony under INA §101(a)(43)(S) despite the Ninth Circuit prior rejection of the BIA’s view that section 118(a)
is categorically a CIMT]; Matter of Abdelghany, 26 I&N Dec. 254, 262-63 (BIA 2014) [offense rendering
respondent an agg felon does not mean he is inadmissible for commission of a CIMT]. Compare also Matter
of Mendez, 27 I&N Dec. 219 (BIA 2018) [misprision of a felony in violation of 18 USC §4 is categorically a
CIMT]; with Matter of Espinoza-Gonzalez, 22 I&N Dec. 889 (BIA 1999) [conviction for misprision of a felony
under 18 USC §4 does not constitute a conviction for an aggravated felony under INA §101(a)(43)(S)].
11. Definition of Term of Imprisonment
11.a. Definition under INA—Under INA §101(a)(48)(B), any term of imprisonment or confinement ordered by
a court and includes suspension of the imposition or execution of the sentence. Drakes v. Zimski, 240
F.3d 246, 251 (3d Cir. 2001) [suspended sentence of one year on each count is at least a one-year
sentence]; U.S. v. Maldonado-Ramirez, 216 F.3d 940 (11th Cir. 2000) [ambiguity in term of imprisonment
refers to sentence initially imposed and not time actually served]; Gomez v. Ashcroft, 293 F.Supp.2d 162
(D. Conn. 2003) [suspended sentence is considered a sentence for defining aggravated felonies]. INA
§101(a)(48)(B) applies to sentences entered before, on or after Sept. 30, 1996. IIRIRA §322(c). A term of
imprisonment may be broadly construed to cover more than time spent in jail. Herrera v. U.S. Att’y Gen.,
811F.3d 1298 (11th Cir. 2016) [probation with a condition of one year’s house arrest is a sentence to
confinement of a year]; Ilchuk v. U.S. Att’y Gen., 434 F.3d 618, 623–24 (3d Cir. 2006) [house arrest with
electronic monitoring is imprisonment]; but see Matter of Aguilar-Aquino, 24 I&N Dec. 747 (BIA 2009)
[under 8 CFR §1236.1(d)(1) a respondent released from physical confinement is no longer in custody and
therefore must request a redetermination within 7 days if he wishes to challenge the terms of release].
11.b. Probation—A sentence to probation, however, has generally not been considered a sentence to
imprisonment, but a violation of probation resulting in incarceration may be. See in this chapter Page 343
“Requirements Concerning Probation,” Section VIII.A (p.373), infra. But see Hernandez v. Holder, 760
F.3d 855 (8th Cir. 2014) [suggested that a sentence to probation is a sentence to imprisonment under INA
§101(a)(48)(B) but the context of the case is a sentence to three years’ probation with the condition that
the defendant spend the first 365 days in county jail]. While a sentence to probation is not per se a
sentence to imprisonment or confinement, a condition of probation that imposes a term of confinement in
a substance abuse facility is a term of imprisonment under INA §101(a)(48)(B). Matter of Calvillo Garcia,
26 I&N Dec. 697 (BIA 2015) [respondent was ineligible for cancellation because of his aggravated felony
conviction as his 5-year sentence under Texas law he was required to serve an indefinite term of
confinement (understood as a maximum one year) in a substance abuse felony punishment facility];
Herrera v. U.S. Att’y Gen., 811 F.3d 1298 (11th Cir. 2016) [probation with a condition of one year’s house
arrest is a sentence to confinement of a year].
11.c. Suspended or Stayed Fine—The Ninth Circuit has determined that a suspended nonincarceratory
sanction (i.e., suspended fine) is not a punishment under INA §101(a)(48)(A) because INA §101(a)(48)(B)
only addresses suspension of incarceration. Retuta v. Holder, 591 F.3d 1181, 1187–89 (9th Cir. 2010)
[controlled substance violation that resulted in a stayed fine was not a conviction].
11.d. Indeterminate and Other Sentences—An indeterminate sentence is considered by the AG/BIA and
some courts to be a sentence for the maximum term of imprisonment. Matter of Jean, 23 I&N Dec. 373,
386 n.14 (AG 2002) [NY law]; Matter of S-S-, 21 I&N Dec. 900 (BIA 1997); Cole v. U.S. Att’y Gen., 712
F.3d 517, 530-32 (11th Cir. 2013) [finding an indeterminate term of imprisonment under SC Youthful
Offenders Act to be the equivalent of the maximum sentence as interpreted by the courts of SC]; Pichardo
v. INS, 104 F.3d 756, 759 (5th Cir. 1997); Nguyen v. INS, 53 F.3d 310 (10th Cir. 1995) [following the
Sentencing Guidelines definition]; Navarro v. Holder, 840 F.Supp.2d 1331 (S.D. Fla. 2012) [where
alternate sentence was discretionary court looked to maximum sentence to determine crime was agg.
felony]; Matter of D-, 20 I&N Dec. 827 (BIA 1994) [Mass. law]. However, at least one circuit regards this as
a matter of state law and therefore no deference should be accorded the Board’s view. Shaya v. Holder,
586 F.3d 401, 406–08 (6th Cir. 2009) [reversed finding that respondent convicted of assault under
Michigan law and given an indeterminate sentence was an aggravated felon because Michigan law
measures an indeterminate sentence as the longer of the minimum sentence or time actually served]. An
undesignated probationary sentence may not be considered a sentence for the maximum period. Lafarga
v. INS, 170 F.3d 1213 (9th Cir. 1999). A concurrent sentence for purposes of determining an “aggregate
term of imprisonment” under INA §241(b)(3) (withholding of removal) is equal in length of the longest
concurrent sentence. Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) [rejecting the addition of
concurrent sentences when determining aggregate term of imprisonment]. Or where aggregate term of
imprisonment on several charges, including aggravated and non–aggravated felonies is more than a year,
the BIA held that sentence applies to each conviction. Matter of Chavez-Alvarez, 26 I&N Dec. 274, 282
(BIA 2014), rev’d, Chavez-Alvarez v. U.S. Att’y Gen., 783 F.3d 478 (3d Cir. 2015) [sentence to 18 months
for plea to three crimes including both aggravated and non-aggravated is sufficient for one-year
requirement]; Matter of S-, 3 I&N Dec. 460 (BIA 1948) [addressing same principle but in federal
sentencing]. The Third Circuit in Chavez-Alvarez v. U.S. Att’y Gen., 783 F.3d 478 (3d Cir. 2015) reversed
the Board because the sentencing procedure used in imposing an 18-month general sentence in the
military for both aggravated and non–aggravated felonies did not apportion the sentence among the
crimes and therefore could not be attributed to the aggravated felony for purposes of a one year sentence.
When the sentence specifies a minimum and maximum sentence, at least one court has held that the
maximum sentence should be utilized in determining whether there is a one-year term of imprisonment.
Bovkun v. Ashcroft, 283 F.3d 166, 170–71 (3d Cir. 2002). The term of imprisonment includes any
enhanced sentence due to recidivism. Matter of Cervantes Nunez, 27 I&N Dec. 238, 243-44 (BIA 2018)
[one year sentencing enhancement defendant received for attempted voluntary departure may be counted
in determining term of imprisonment of at least one year for purposes of INA §101(a)(43)(F)]; Dawkins v.
Holder, 762 F.3d 247 (2d Cir. 2014) [term of imprisonment, following U.S. v. Rodriguez, 553 U.S. 377
(2008), includes applicable state recidivist sentence enhancement]. Page 344
11.e. Actual Sentence Imposed—The term of imprisonment refers to the actual sentence imposed and not
the potential sentence that might be imposed under the statute. Alberto-Gonzalez v. INS, 215 F.3d 906,
909–10 (9th Cir. 2000); U.S. v. Graham, 169 F.3d 787, 789–90 (3d Cir. 1999). However, INA §101(a)(43)
(J) and (T), suggest by the use of the term “may” that, in those cases, the sentence may be the statutory
maximum penalty rather than the actual sentence imposed. See Matter of Garza-Olivares, 26 I&N Dec.
736 (BIA 2016) [under INA §101(a)(43)(T), whether underlying felony is one for which sentence of two
years’ imprisonment or more may be imposed is a “circumstance-specific” inquiry and need not be
element of conviction for failure to appear in court].
11.f. Punishable by or May Be Imposed—When an aggravated felony statute includes language that
provides that the conviction must be “punishable by” a certain term of imprisonment or language that the
term of imprisonment “may be imposed” both mean that the IJ should look to the maximum period that
could be imposed under the statute and not to what sentence was actually imposed in determining
whether the conviction is an aggravated felony. Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016) [BIA
rejected respondent’s argument that the sentence he was actually given should be utilized to determine
whether he was an aggravated felon under INA §101(a)(43)(Q) because the statute looks to whether the
underlying offense is “punishable by” a term of imprisonment of 5 years or more].
11.g. Definition of Year—A term of imprisonment of 365 days is considered one year under the aggravated
felony statute. Habibi v. Holder, 673 F.3d 1082, 1086-88 (9th Cir. 2011) [for purposes of a COV a sentence
of 365 days qualifies as a term of imprisonment of at least one year even when the sentence was served
in whole or in part during a leap year]; Matsuk v. INS, 247 F.3d 999, 1001–02 (9th Cir. 2001) overruled on
other grounds 648 F.3d 1095 (2011) (en banc) [a person sentenced to 365 days is considered to have
committed an aggravated felony COV which requires a term of imprisonment of “at least one year.”]. If a
person’s sentence is vacated and a new sentence of less-than-365-days is imposed, she will not be
considered to be convicted of an aggravated felony.Matter of Song, 23 I&N Dec. 173 (BIA 2001) [no
aggravated felony where judge vacated prior 365-day sentence nunc pro tunc and resentenced person to
360 days]. This is true even if the sentence is vacated or modified nunc pro tunc expressly to avoid
immigration consequences. Matter of Cota, 23 I&N Dec. 849 (BIA 2005) [distinguishing Matter of
Pickering].
11.h. Petty Offense/Misdemeanor—Where a person is convicted of a petty offense for which the maximum
sentence is 6 months, but where the person is sentenced to 2 years under an enhancement provision, this
may meet the one-year-sentence requirement, as a result of the Supreme Court’s decision in U.S. v.
Rodriquez, 533 U.S. 377 (2008) [reversing analysis in U.S. v. Corona-Sanchez, 291 F.3d 1201, 1208–09
(9th Cir. 2002) (en banc), that was based on the theory that “recidivism does not relate to the commission
of the offense”]; U.S. v. Asencio-Perdomo, 674 F.3d 444 (5th Cir. 2012) [the “term of imprisonment” under
INA §101(a)(43)(G) refers to the actual penalty imposed and not to a statutory mandatory minimum]; U.S.
v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) [allowing consideration of sentence enhancement
and restricting Corona-Sanchez rule to sentencing factors based on defendant’s legal history, such as
recidivism]; U.S. v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001) [attempted 3rd degree child
molestation is a misdemeanor under Wash. law, but is an aggravated felony for sentencing
enhancement]; U.S. v. Christopher, 239 F.3d 1191 (11th Cir. 2001) [theft by shoplifting although a
misdemeanor under state law is aggravated felony with one-year suspended sentence]; U.S. v. Pacheco,
225 F.3d 148, 154 (2d Cir. 2000); Wireko v. Reno, 211 F.3d 833, 835 (4th Cir. 2000); U.S. v. Graham, 169
F.3d 787, 790–92 (3d Cir. 1999).
11.i. Unlawful Sentence—If a sentence was unlawful it may not count as a sentence that meets the
threshold for an aggravated felony. Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1169–70 (9th Cir. 2006)
[where respondent was found to have been convicted of an aggravated felony, court remanded where he
was convicted of a misdemeanor under Ariz. Rev. Stat. §13-802(A)(1) & (C) and he argued that his one-
year sentence was unlawful].
12. Effective Date—Under Matter of A-A-, 20 I&N Dec. 492 (BIA 1992), there is a 2-part analysis for
determining whether a person has committed an aggravated felony and its effect. The first question is
whether the conviction is an aggravated felony. The second is what consequences result from the Page 345
conclusion that a crime is an aggravated felony. Lewis v. INS, 194 F.3d 539, 542–43 n.5 (4th Cir. 1999); Legal
Opinion, Martin, General Counsel, 96-16 (Dec. 3, 1996), reprinted in 74 No. 38 Interpreter Releases 1515,
1530–32 (Oct. 6, 1997).
The definition of aggravated felony applies to any conviction that occurred before the term was introduced to
the INA in 1988, unless Congress designated otherwise. Lucas v. Lynch, 823 F.3d 1028 (5th Cir. 2016) [when
respondent pleaded guilty in Dec. 1996 section 212(c) had already become unavailable to aggravated felons
and section 321(a) of IIRIRA made his alien smuggling conviction retroactively an aggravated felony]. See
also Garrido-Morato v. Gonzales, 451 F.3d 319, 322 (5th Cir. 2007); Scheidemann v. INS, 83 F.3d 1517,
1523–25 (3d Cir. 1996); U.S. v. Kingston, 966 F.Supp. 183 (S.D.N.Y. 1997). The original aggravated felonies,
e.g., drug trafficking, arms trafficking, and murder are considered aggravated felonies even if committed prior
to 1988. Matter of A-A-, 20 I&N Dec. 492, 498; De Osorio v. INS, 10 F.3d 1034 (4th Cir. 1993) [following
Matter of A-A-]. In IMMACT90, Congress added the crimes of money laundering, nonpolitical crimes of
violence, and certain crimes in violation of foreign law, but only made them aggravated felonies if “committed
on or after the date of enactment.” IMMACT90 §501(b). Similarly, all crimes added by the 1994 INTCA,
including attempts and conspiracies apply only to convictions “entered on or after” Oct. 25, 1994. The
changes to INA §§101(a)(43)(J), (K)(ii), (P), and (Q), as well as the addition of §§101(a)(43)(O), (R), (S), and
(T) applied to convictions entered on or after Apr. 24, 1996, the date AEDPA was signed into law, except the
changes to INA §101(a)(43)(N) apply as if included in the 1994 Act, with an effective date of Oct. 24, 1994.
The 1996 IIRIRA amendments, were: (1) adding rape and sexual abuse of a minor to §101(a)(43)(A); (2)
striking $100,000 and $200,000 and inserting $10,000 to §§101(a)(43)(D) and (M), respectively; (3) striking 5
years and replacing it with one year in §§101(a)(43)(F), (G), (J), (N), (P), (R), and (S); (4) adding requirement
of commercial advantage to §§101(a)(43)(K)(ii); and (5) adding to §§101(a)(43)(N) and (P) the exception for
family members.
Although Congress did designate specific dates for the application of aggravated felonies in the 1990
(IMMACT90 §602(c)), 1994, and AEDPA §7344(b)), IIRIRA §321(b) made the effective date of the definition
of aggravated felony retroactive covering all crimes within the definition irrespective of the date of
commission [“notwithstanding any other provision of law (including any effective dates) the term applies
regardless of whether the conviction was entered before, on or after the date of enactment” of this paragraph
(i.e., Sept. 30, 1996)]; Mondragón v. Holder, 706 F.3d 535, 540-44 (4th Cir. 2013) [rejecting due process and
Sixth Amendment challenges to retroactivity]; Alocozy v. USCIS, 704 F.3d 795 (9th Cir. 2012) [naturalization
bar applied to 1991 felonious assault with the intent to commit rape, even though it was not a crime of
violence aggravated felony at the time and despite a grant of 212(c) relief]; Lovan v. Holder, 574 F.3d 990,
997 (8th Cir. 2009) [aggravated felony definition of sexual abuse of a minor applies retroactive]; Chan v.
Gantner, 464 F.3d 289, 292–94 (2d Cir. 2006) [applying INA §§101(a)(43)(N) & (U) retroactively to a
conviction for conspiracy to commit alien smuggling to bar citizenship for lack of good moral character]; Sena
v. Gonzales, 428 F.3d 50, 51–53 (1st Cir. 2005) [retroactive application of alien smuggling provision, §101(a)
(43)(N), has a rational basis and does not violate due process]; Tran v. Gonzales, 447 F.3d 937, 940–41 (6th
Cir. 2006) [aggravated felony definition applies retroactively to permit removal even where the respondent
was previously found not deportable under CIMT provisions for the same convictions; res judicata not raised];
Guaylupo-Moya v. Gonzales, 423 F.3d 121, 128–32 (2d Cir. 2005) [Congress clearly intended the expanded
definition of aggravated felony to apply retroactively to bar INA §212(h) relief]; Alvarez-Barajas v. Gonzales,
418 F.3d 1050, 1054 (9th Cir. 2005) [definition applies retroactively to bar relief for conviction that was not an
aggravated felony at the time of the plea]; Brown v. Ashcroft, 360 F.3d 346, 353–55 (2d Cir. 2004) [definition
of aggravated felony applied retroactively to bar eligibility for INA §212(c) relief]; Seale v. INS, 323 F.3d 150,
157–60 (1st Cir. 2003) [following Sousa on retroactivity and rejecting respondent’s ex post facto and double
jeopardy arguments for pre-1988 assault with intent to murder conviction]; Kuhali v. Reno, 266 F.3d 93, 110–
11 (2d Cir. 2001) [Congress intended definitions to apply retroactively and no due process or ex post facto
claims raised in unlicensed firearms export under 22 USC §2778]; Flores-Leon v. INS, 272 F.3d 433, 438–39
(7th Cir. 2001) [Congress intended the aggravated felony definition to apply retroactively and retroactive
application does not violate the ex post factoclause]; Mohammed v. Ashcroft, 261F.3d 1244 (11th Cir. 2001)
[rejecting retroactivity and due process challenges in case involving a plea to 2 counts of stolen property];
Sousa v. INS, 226 F.3d 28, 32–35 (1st Cir. 2000) [unarmed robbery in 1990 was aggravated felony even if it
would Page 346 not be under pre-IIRIRA statutes]; Aragon-Ayon v. INS, 206 F.3d 847 (9th Cir. 2000)
[aggravated felony definition is expressly retroactive under INA §321(b) and applies to a 1992 conviction];
Matter of Truong, 22 I&N Dec. 1090 (BIA 1999).
But there is a difference between whether a conviction is for an aggravated felony and the consequence of it
being an aggravated felony. For example, in Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010), the
court found that while a conviction before 1988 may be defined as an aggravated felony as a result of IIRIRA
§321(b), a person would not be subject to removal for it.Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir.
2010) [even if the definition of an aggravated felony is retroactive by virtue of IIRIRA §321(b), it does not
render a person deportable because IMMACT90 §602 did not repeal section ADAA §7344(a) that barred an
aggravated felony conviction entered prior to its effective date (Nov. 18 1988) from serving as a basis for
removal]; Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) [followed Ledezma-Galicia finding that
the aggravated felony ground of removal does not apply to a 1984 conviction for alien transportation because
it occurred prior to the Nov. 18, 1988 passage of the Anti-Drug Abuse Act]; Zivkovic v. Holder, 724 F.3d 894,
906-12 (7th Cir. 2013) [rejecting different approaches including Matter of Lettman and finding that the 1988
statute cannot be applied retroactively to be used as a basis for deportation]; U.S. v. Ubaldo-Figueroa, 364
F.3d 1042, 1050–56 (9th Cir. 2004) [retroactive application of the expanded aggravated felony definition to a
pre-1996 attempted burglary conviction would plausibly violate due process]; U.S. v. Saldivar-Vargas, 290
F.Supp.2d 1210 (S.D. Cal. 2003) [following Ubaldo-Figueroa].
In situations other than whether someone is subject to deportation, the courts have similarly held that even if
the definition of aggravated felony is retroactive, an issue still remains as to the application of the retroactive
definition in a given circumstances. For example, an aggravated felon is not barred from good moral
character under §101(f)(8) if the conviction occurred prior to Nov. 29, 1990. 8 CFR §316.10(b)(1)(ii), 8 CFR
§1240.56. Legal Opinion, Martin (Dec. 3, 1996), supra; Lopez-Castellanos v. Gonzales, 437 F.3d 848, 851
(9th Cir. 2006); U.S. v. Hovsepian, 359 F.3d 1144, 1165–69 (9th Cir. 2004) (en banc). Similarly, whether or not
the aggravated felony definition applies retroactively to persons with pre-AEDPA/IIRIRA convictions, persons
who pleaded guilty prior to AEDPA/IIRIRA remain eligible for §212(c) relief because the aggravated felony
bar to §212(c) relief may not be retroactively applied. INS v. St. Cyr, 533 U.S. 289, 325-26 (2001). See also
Toia v. Fasano, 334 F.3d 917 (9th Cir. 2003) [IMMACT90 §511, which was enacted on Nov. 29, 1990, barring
INA §212(c) relief to persons who served a term of imprisonment of more than 5 years for an aggravated
felony, may not be applied retroactively under St. Cyr and if the conviction arose before Nov. 29, 1990, such
person is eligible for §212(c) relief]; compare Saravia-Paguada v. Gonzales, 488 F.3d 1122 (9th Cir. 2007)
[rejecting retroactivity argument because respondent was convicted after trial in 1988]. But see Scheidemann
v. INS, 83 F.3d 1517, 1523–25 (3d Cir. 1996) [barring 212(c)]; Reid v. Holmes, 323 F.3d 187 (2d Cir. 2003)
[rejecting retroactivity argument regarding IMMACT90 §511 for person convicted before 1990]; Gomes v.
Ashcroft, 311 F.3d 43, 45–46 (1st Cir. 2002) [“admission” in IMMACT90 §511(b) applies not only to the
original admission into the U.S. but to whenever applicant applies for INA §212(c) and therefore bar due to 5-
year imprisonment is applicable].
Even prior to IIRIRA, the Board and some courts, however, generally took the position that a person
convicted of a crime that may, through retroactive application, be defined as an aggravated felony is subject
to deportation. Matter of Lettman, 22 I&N Dec. 365 (BIA 1998), aff’d, Lettman v. Reno, 207 F.3d 1368 (11th
Cir. 2000) [person convicted in 1987 is deportable as an aggravated felon pursuant to IMMACT90 §602(c),
even though conviction occurred prior to the Anti-Drug Abuse Act of 1988, which first defined aggravated
felonies and made them prospective. BIA relied on IMMACT90 §602]. Accord Lewis v. INS, 194 F.3d 539,
543–47 (4th Cir. 1999). See also Gelman v. Ashcroft, 372 F.3d 495 (2d Cir. 2004) [following Bell v. Reno and
finding that post–St. Cyr, IMMACT90 §602(d) permits the aggravated felony definition to apply to convictions
which arose before Nov. 18, 1988 where notice of proceeding was provided after Mar. 1, 1991]; Bell v. Reno,
218 F.3d 86 (2d Cir. 2000) [IMMACT90 §602(c) could not be applied retroactively but §602(d) allows
retroactive application of aggravated felony provisions as long as proceedings were after Mar. 1, 1991.] But
see Ledezma-Galicia v. Holder, 636 F.3d 1059, 1067-76 (9th Cir. 2010) [rejecting Lettman and Bell, holding
that neither IMMACT90 §§601(b) or 602(d) requires retroactive application of the aggravated felony label to
convictions prior to Nov. 18, 1988]; Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) Page 347
[followed Ledezma-Galicia finding that the aggravated felony ground of removal does not apply to a 1984
conviction for alien transportation because it occurred prior to the Nov. 18, 1988 passage of the Anti-Drug
Abuse Act].
An alternative, but yet unaccepted interpretation of IIRIRA §321(b) is that the retroactive provision applies
only to the IIRIRA amendments to the definition of aggravated felony [“The amendment provides that the
amended definition of ‘aggravated felony’ applies to offenses that occurred before, on or after the date of
enactment.” H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. at 223]. But see Sango-Dema v. District
Director, INS, 122 F.Supp.2d 213, 218 (D. Mass. 2000) [1996 additions to aggravated felony definition apply
to 1994 conviction].
In addition to whether a retroactive definition will apply in a specific case, IIRIRA §321(c), provides that while
the definition of any aggravated felony shall apply retroactively pursuant to IIRIRA §321(b) that retroactive
definition “shall [only] apply to actions taken on or after the date of enactment [Sept. 30, 1996] regardless of
when the conviction occurred.” IIRIRA §321(c). The aggravated felony definition also only applies to INA
§276(b) [criminal statute pertaining to reentry] if the violation occurred after Sept. 30, 1996. Id. Thus, even if
the criminal conviction is an aggravated felony despite the conviction existing prior to its definition as an
aggravated felony, it may only be applied to “actions taken” after Sept. 30, 1996.
The BIA and the courts have interpreted “actions taken” to mean orders and decisions issued against a
respondent by the AG after the effective date. Matter of Truong, 22 I&N Dec. 1090, 1095–97 (BIA 1999)
[removal proceedings are considered “actions taken”]; Biskupski v. U.S. Att’y Gen., 503 F.3d 274, 281–84 (3d
Cir. 2007) [“action taken” refers to orders and decisions of the IJ or BIA]; Garrido-Morato v. Gonzales, 485
F.3d 319, 323–24 (5th Cir. 2007) [rejecting argument that “actions taken” includes pleading guilty and
applying for relief which would preclude the amendments from applying]; Xiong v. INS, 173 F.3d 601 (7th Cir.
1999); Choeum v. INS, 129 F.3d 29, 33–35 (1st Cir. 1997); Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir.
1997); Aragon-Ayon v. INS, 206 F.3d 847, 852–53 (9th Cir. 2000) [applies to any action taken by the AG];
Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997) [judicial review is action taken making crime an
aggravated felony, thereby barring judicial review]; Matter of Yeung, 21 I&N Dec. 610 (BIA 1996), [the law
applied retroactively at least as to the amended provision of INA §101(a)(43)(F), reducing COVs from 5 years
to one year]. But see Saqr v. Holder, 580 F.3d 414, 420–22 (6th Cir. 2009) [in removal proceedings “action
taken” includes service of OSC and therefore aggravated felony did not apply to removal proceeding where
petitioner was “served” with an OSC before Sept. 30, 1996, the OSC was never filed with the immigration
court, and he was reserved with an NTA after Sept. 30, 1996]. See also Alanis-Bustamante v. Reno, 201 F.3d
1303, 1310 (11th Cir. 2000); Wallace v. Reno, 194 F.3d 279, 287 (1st Cir. 1999).
Courts have rejected an ex post facto argument to the retroactive definition of aggravated felonies after
Padilla v. Kentucky, 559 U.S. 356 (2010). Morris v. Holder, 676 F.3d 309, 316-17 (2d Cir. 2012) [followed
Alvarado-Fonseca and rejected ex post facto challenge based upon Padilla v. Kentuckyto IIRIRA’s retroactive
definition of aggravated felony]. Alvarado-Fonseca v. Holder, 631 F.3d 385, 391-92 (7th Cir. 2011) [rejected
claim based upon language in Padilla v. Kentucky]; Dar v. Olivares, 956 F.Supp.2d 1287, 1293-94 (N.D. Okla.
2013) [same following Morris in context of denial of naturalization].
J. Effective Date / Savings Provision
1. Applicability—Deportation grounds under IMMACT90 apply to persons who have been provided notice of
deportation proceedings on or after Mar. 1, 1991. IMMACT90 §602(d); Matter of Esposito, 21 I&N Dec. 1 (BIA
1995). This provision is effective under the BIA’s decision even if the charge is excludable on entry based
upon an entry prior to the Act’s effective date. Matter of Papayzan, 20 I&N Dec. 568 (BIA 1992). If an OSC is
issued, but not served before Mar. 1, 1991, INS must issue a new OSC reflecting the new section of the law.
IMMACT90 Wire No. 40, Lempres, Executive Comm. (Feb. 27, 1991).
2. Retroactivity—IMMACT90 supersedes earlier effective dates governing deportability for an aggravated

felony, and therefore, a person is deportable for an aggravated felony conviction that arose before Nov. 19,
1988. Matter of Lettman, 22 I&N Dec. 365 (BIA 1998), aff’d, Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000)
[applying IMMACT90 §602(c) to permit retroactive application of aggravated felony definition]; Lewis v. INS,
194 F.3d 539 (4th Cir. 1999); Lopez-Amaro v. INS, 25 F.3d 986 (11th Cir. 1994) [applying same rationale to
non–aggravated felony firearm conviction]. See also Gelman v. Ashcroft, 372 F.3d 495 (2d Cir. 2004) Page
348 [following Bell v. Reno and finding that post–St. Cyr, IMMACT90 §602(d) permits the definition of
aggravated felony to apply to convictions which arose before Nov. 18, 1988 where notice of proceeding was
provided after Mar. 1, 1991]; Bell v. Reno, 218 F.3d 86 (2d Cir. 2000) [IMMACT90 §602(c) could not be
applied retroactively but §602(d) does allow the retroactive application of aggravated felony provisions, as
long as proceedings were after Mar. 1, 1991]. But see Ledezma-Galicia v. Holder, 636 F.3d 1059, 1067-76
(9th Cir. 2010) [rejecting Lettman and Bell, holding that neither IMMACT90 §§601(b) or 602(d) requires
retroactive application of aggravated felony label to convictions prior to Nov. 18, 1988]; Reyes-Torres v.
Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) [followed Ledezma-Galicia finding that the aggravated felony
ground of removal does not apply to a 1984 conviction for alien transportation because it occurred prior to the
Nov. 18, 1988 passage of the Anti-Drug Abuse Act]; Saqr v. Holder, 580 F.3d 414, 420–22 (6th Cir. 2009) [in
removal proceedings “action taken” includes service of OSC and therefore aggravated felony did not apply to
removal proceeding where petitioner was “served” with an OSC before Sept. 30, 1996, the OSC was never
filed with the immigration court, and he was reserved with an NTA after Sept. 30, 1996]; U.S. v. Ubaldo-
Figueroa, 364 F.3d 1042, 1050–56 (9th Cir. 2004) [retroactively applying the expanded definition of
aggravated felony to encompass pre-1996 attempted burglary conviction would plausibly violate due
process].
An alien who was deportable because of a conviction before Nov. 29, 1990, of an offense referred to in
former INA §241(a)(15), (16), (17), or (18), “shall be” considered to remain deportable. The deportation
provisions apply to all aliens even if they entered before Nov. 29, 1990, or the facts concerning the grounds
of deportation arose before Nov. 29, 1990. IMMACT90 §602(c). See Attul v. INS, 42 F.3d 958 (5th Cir. 1995).
Under IIRIRA, the effective date of all grounds of inadmissibility and removal is generally Apr. 1, 1997. IIRIRA
§309(a). There are certain exceptions, e.g., the change in INA §237(a)(2)(A)(i) applies to deportation
proceedings initiated after the date enactment. See also Ledezma-Galicia v. Holder, 636 F.3d 1059, 1067-76
(9th Cir. 2010) [IMMACT90’s amendments to the definition of aggravated felony do not apply retroactively to
permit convictions prior to Nov. 18, 1988 to be the basis for a deportation charge because ADAA §7344(a)
was not repealed]; Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) [followed Ledezma-Galicia
finding that the aggravated felony ground of removal does not apply to a 1984 conviction for alien
transportation because it occurred prior to the Nov. 18, 1988 passage of the Anti-Drug Abuse Act].The AG
may opt to utilize new procedures if an evidentiary hearing is not held by Apr. 1, 1997, or he or she may
terminate proceedings and begin anew. IIRIRA §§309(c)(2) & (3).
3. Transition Rules and Service of OSC—A person served with an OSC and a warrant of detainer may be
considered to be in proceedings under pre-AEDPA/IIRIRA law so that a later served and filed NTA does not
deprive relief under pre-IIRIRA standards. Saqr v. Holder, 580 F.3d 414, 420–22 (6th Cir. 2009) [in removal
proceedings “action taken” includes service of OSC and therefore aggravated felony did not apply to removal
proceeding where petitioner was “served” with an OSC before Sept. 30, 1996, the OSC was never filed with
the immigration court, and he was reserved with an NTA after Sept. 30, 1996]; Alanis-Bustamante v. Reno,
201 F.3d 1303 (11th Cir. 2000) [AEDPA/IIRIRA does not bar §212(c) relief where person served with OSC
and warrant of detainer, even if OSC not filed with the immigration court and INS subsequently issues and
serves an NTA]; Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999). Similarly a person served an OSC would be
considered under pre-AEDPA/IIRIRA proceedings even if she were not subject to a detainer, where
immigration authorities never intended to place a detainer. Cunningham v. U.S. Att’y Gen., 335 F.3d 1262
(11th Cir. 2003) [following Alanis-Bustamante and allowed for filing of §212(c) and §212(h) relief]. But see
Thom v. Ashcroft, 369 F.3d 158, 164–65 (2d Cir. 2004) [legacy INS filing notice of detainer with prison but
neither serving nor filing NTA until after Apr. 1, 1997, does not place person in proceedings before that date];
Dipeppe v. Quarantillo, 337 F.3d 326, 333–35 (3d Cir. 2003) [delay between serving the OSC in 1992 and
filing the NTA in 2000 did not justify application of St. Cyr because the OSC was not filed; proceedings
commenced only with the filing in court of the NTA]; Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir.
2002) [rejecting both Alanis-Bustamante andWallace]; DeLeon-Holguin v. Ashcroft, 253 F.3d 811 (5th Cir.
2001) [proceedings have not commenced where OSC is served but not filed]; Asad v. Reno, 242 F.3d 702,
706 (6th Cir. 2001); Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000) [person served with exclusion
notice but not put into removal proceedings until after IIRIRA is barred from §212(c) because proceedings
commence under 8 CFR §§1003.14 and 1240.30 after INS files the NTA with the court]. Page 349
VI. A CONVICTION UNDER THE INA

A. Definition
1. Generally—A conviction exists where there has been a formal judgment of guilt entered by a court or if
adjudication has been withheld, where all of the following elements are present: (1) a judge or jury has found
alien guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to
warrant a finding of guilt; and (2) the judge has ordered some form of punishment, penalty or restraint on the
person’s liberty to be imposed. INA §101(a)(48)(A). U.S. v. Canelas-Amador, 837 F.3d 668 (6th Cir. 2016)
[where state court did not have an opportunity to impose a sentence after a notation that there was an
acceptance of plea of guilty under Tennessee law, defendant was not convicted for purposes of illegal reentry
where circuit relied on the immigration definition of conviction]. But see Frias-Camilo v. U.S. Att’y Gen., 826
F.3d 699 (3d Cir. 2016) [a conviction occurs where there is a formal judgment of guilt entered even if there is
no further penalty and amending sentence to be “guilty without further penalty” pursuant to 42 Pa. Cons. Stat.
§9723 does not alter that the plea is a conviction because a finding of guilt is sufficient]. However, a
conviction may not occur where the judge finds facts justifying a finding of guilt, but the defendant does not
admit guilt, and there is no formal finding of guilt. Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011) [no
conviction arises under Va. Code Ann. §18.2-251 where a judge may defer entry of guilt if it finds facts
relating to guilt but does not enter an order finding guilt and the defendant does not admit guilt]; but see
Jaquez v. Sessions, 859 F.3d 258 (4th Cir. 2017) [where defendant first pleaded guilty and was then
sentenced under Virginia first offender statute, Virginia Code §18.2-250, which vacated the finding of guilt but
not the plea and sentenced him to probation, he was deemed to be convicted under INA §101(a)(48)(A);
court distinguished Crespo because defendant did not plead guilty in that case and the temporal lag between
guilty plea and sentencing was irrelevant]. A conviction does not occur at the time the court accepts the guilty
plea, but rather at the “date on which judgment is entered on the docket” which under Fed. R. Crim. P. 32(d)
(1) is after sentencing. Singh v. Holder, 568 F.3d 525, 530–31 (5th Cir. 2009) [conviction does not occur until
court pronounces sentence]; Puello v. BCIS, 511 F.3d 324, 331 (2d Cir. 2007) [applicant ineligible for
naturalization due to lack of GMC because he was convicted “on or after” Nov. 29 1990 despite guilty plea
before that date]; Perez v. Elwood, 294 F.3d 552, 561–62 (3d Cir. 2002) [IIRIRA §322(c) applies retroactively;
the term “formal judgment of guilt” is defined by reference to Fed. R. Crim. P. 32(d)(1), and occurs at the time
of sentencing, not jury adjudication, thereby foreclosing INA §212(c) relief, as sentence was entered after
Apr. 1, 1997, the repeal date of INA §212(c)].
2. Previous Definition Removed—The previous definition under Matter of Ozkok, 19 I&N Dec. 546 (BIA
1988), which required as a condition for a conviction, that a judgment or adjudication of guilt be entered if the
person violates probation or court orders without any additional proceedings to determine guilt or innocence
of the original charge, has been removed. IIRIRA §322. “The section deliberately broadened the scope of the
definition of conviction.” H.R. Conf. Rep. 828, 104th Cong., 2d Sess. at 223–24. The purpose of the change
is to hold that “deferred adjudications” are still convictions. H.R. Conf. Rep., supra at 224. The new definition
of conviction applies to convictions entered “before, on, or after” Sept. 30, 1996. IIRIRA §322(c). Matter of
Punu, 22 I&N Dec. 224 (BIA 1998) [Texas deferred adjudications statute is a conviction because the third
prong of Ozkok has been removed. New definition applied retroactively].
3. BIA Definition: Roldan and Its Progeny—The Board in Matter of Roldan, 22 I&N Dec. 512 at 528 (BIA
1999) read the new statutory definition broadly, finding that: “State rehabilitative actions which do not vacate
a conviction on the merits or on any ground related to the violation of a statutory or constitutional right in the
underlying criminal proceeding are of no effect in determining whether an alien is considered convicted for
immigration purposes.” Roldan was subsequently vacated sub nom. Lujan-Armendariz v. INS, 222 F.3d 728
(9th Cir. 2000) in cases involving state equivalents to the Federal First Offender Act (FFOA) under 18 USC
§3607. However, Lujan-Armendarizwas overturned prospectively in Nunez-Reyes v. Holder, 646 F.3d 684
(9th Cir. 2011) (en banc) [convictions on July 14, 2011 and thereafter have no FFOA treatment]; Villavicencio-
Rojas v. Lynch, 811 F.3d 1216, 1218-19 (9th Cir. 2016) [respondent who pleaded to two counts of drug
possession before July 14, 2011 could obtain FFOA treatment because it was one offense]. In Reyes v.
Lynch, 834 F.3d 1104 (9th Cir. 2016) the court clarified that an expunged drug conviction under California law
is a conviction for immigration purposes barring cancellation and adjustment regardless of the Page 350
rehabilitative purpose or probation. The BIA also reaffirmed its position that state equivalents of the FFOA are
still convictions for immigration purposes for cases outside of the Ninth Circuit, Matter of Salazar, 23 I&N Dec.
223 (BIA 2002) aff’d Salazar-Regino v. Gonzales, 415 F.3d 436 (5th Cir. 2005). All circuits have supported
the Board’s reasoning in Roldan and Salazar. See Jaquez v. Sessions, 859 F.3d 258 (4th Cir. 2017) [guilty
plea and sentence under Virginia first offender statute, Virginia Code §18.2-250, was deemed a conviction
under INA §101(a)(48)(A)]; Brikova v. Holder, 699 F.3d 1005 (8th Cir. 2012) [rejected equal protection
challenge based upon FFOA]; Nguyen v. USCIS, 847 F.3d 750 (5th Cir. 2017) [Louisiana’s automatic first-
offender pardon, La. Rev. Stat. Ann. §15.572(B)(1) is not a full and unconditional pardon]; Dung Phan v.
Holder, 667 F.3d 448 (4th Cir. 2012) [a vacatur under the D.C. Youth Rehabilitation Act remains a conviction
for immigration purposes because it is a rehabilitative vacatur and could therefore be considered for
naturalization purposes]; Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) [an expunged state
court conviction for simple possession is a conviction for immigration purposes and equal protection does not
require it be treated the same as the FFOA but only applying its decision prospectively]; Wellington v. Holder,
623 F.3d 115 (2d Cir. 2010) [according Chevron deference to BIA’s interpretation that there is no exception
for state convictions analogous to the FFOA]; Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009) [in conviction
for possession of drug paraphernalia under Cal. Health & Safety Code §11364, petitioner would not have
been eligible for FFOA because he violated his probation and FFOA does not extend to probation violations];
De Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007) [distinguishing Lujan-Armendariz and
Garberding and holding that equal protection was not violated because Salvadoran with expunged 1999
conviction for possession under Cal. Penal Code §1203.4 was convicted for immigration purposes; FFOA did
not apply as respondent had a previous 1996 diversion program]; Salazar-Regino v. Gonzales, 415 F.3d 436,
448 (5th Cir. 2005) [Matter of Roldan should be accorded Chevron deference; person with deferred
adjudication under Texas law is convicted]; Ramos v. Gonzales, 414 F.3d 800, 806–07 (7th Cir. 2005)
[following Gill, rejecting equal protection challenge to a Nebraska conviction vacated for rehabilitative
purposes]; Resendez-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004) [expunged state conviction
for simple possession that is equivalent to FFOA remains a conviction under §101(a)(48)(A) under Roldan
and no equal protection or due process violation]; Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004)
[same]; Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. 2003) [rejecting equal protection challenge to distinction
between FFOA and state equivalents and upholding, under Chevron deference, Roldan and Salazar that a
state equivalent to FFOA is still a conviction under INA §101(a)(48)(A)]; Gill v. Ashcroft, 335 F.3d 574 (7th Cir.
2003) [FFOA only applies to federal and not state convictions]; Vasquez-Velezmoro v. INS, 281 F.3d 693 (8th
Cir. 2002) [no equal protection violation because state sentence to probation was longer than one year and,
therefore, conviction not the same as under FFOA]; Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000).
But see Siddiqui v. Holder, 670 F.3d 736 (7th Cir. 2012) [definition of conviction does not apply retroactively to
LULAC/CSS beneficiaries].
4. BIA Interpretation Generally Upheld—The federal courts have also generally upheld the BIA’s
interpretation of §101(a)(48)(A). Cole v. U.S. Att’y Gen., 712 F.3d 517, 524-26 (11th Cir. 2013) [a conviction
under South Carolina’s Youthful Offender Act was a conviction under §101(a)(48)(A) because the federal
statute makes no distinction based on age and does not carve out an exception for expungements in the
future]; Mejia Rodriguez v. DHS, 629 F.3d 1223 (11th Cir. 2011) [applying the standard under Fed. R. Crim. P.
32(k)(1) and holding that a finding of guilt after accepting a guilty plea is an adjudication of guilt for purposes
of §101(a)(48)(A)]; De Vega v. Gonzales, 503 F.3d 45, 48–49 (1st Cir. 2007) [a continuation of defendant’s
case under Mass. law without a finding of guilt was a conviction where it was based upon an admission of
facts sufficient for a finding of guilt and restitution was ordered, because the restitution order was punitive and
the admission could ripen into a guilty plea]; Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1207–09 (10th Cir.
2007) [nolo plea and deferred sentence under Wyoming statute is conviction]; Salazar-Regino v. Gonzales,
415 F.3d 436, 448 (5th Cir. 2005) [Matter of Roldan interpreting §101(a)(48)(A) should be accorded Chevron
deference and person with deferred adjudication under Texas law is convicted]; Uritsky v. Gonzales, 399 F.3d
728 (6th Cir. 2005)[relying on Chevron deference in the BIA’s interpretation of §101(a)(48) and distinguishing
Matter of Devison, 22 I&N Dec. 1362 (BIA 2000) as a juvenile delinquency case, the court determined that a
sentence to probation under Michigan’s Youthful Trainee Act was a conviction]; Cruz-Garza v. Ashcroft, 396
F.3d 1125, 1128–29 (10th Cir. 2005) [affirming Roldan/Salazar standard but finding that DHS did not prove by
clear and convincing evidence that reduced felony conviction was an aggravated felony because the
evidentiary record Page 351 was vague and the reduction could have occurred for other than a rehabilitative
purpose under Utah law]; Resendez-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004) [expunged
state conviction for simple possession that is equivalent to FFOA remains a conviction under §101(a)(48)(A)
and Roldan]; Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001) [where Ariz. Rev. Stat. §13-907(A)
provides that a judgment of guilt will be set aside upon fulfillment of probation or sentence, it remains a
conviction for immigration purposes under Matter of Roldan]; Griffiths v. INS, 243 F.3d 45, 49–55 (1st Cir.
2001) [finding Mass. “on file” procedure may be a conviction post-IIRIRA and distinguishing Pino because
finality is no longer a consideration]; Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000) [Puerto Rican
rehabilitative programs that vacate convictions other than on the merits or for a statutory or constitutional
violation are deemed convictions and such findings do not violate full faith and credit, substantive due
process or the Tenth Amendment]; Moosa v. INS, 171 F.3d 994, 1006–10 (5th Cir. 1999) [plea under Texas
deferred adjudication statute is a conviction]; Dung Phan v. Holder, 722 F.Supp.2d 659 (E.D. Va. 2010)
[distinguished Devison and held that an adjudication under D.C. Youth Rehabilitation Act, D.C. Code Ann.
§24-901 et seq., is a conviction]; Pequeno-Martinez v. Trominski, 281 F.Supp.2d 902, 915 (S.D. Tex. 2003)
[rejecting argument that under deferred adjudication person was not sentenced to a term of imprisonment].
5. Punishment under the Definition of Conviction—The statutory definition of a conviction under INA
§101(a)(48)(A)(ii) requires some form of penalty or punishment to be imposed. The BIA has determined that
the imposition of costs and surcharges in a criminal sentence constitutes a “form of penalty or punishment”
for purposes of this section. Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008) [nolo plea to drug possession
charge under Florida law, where defendant received a withholding of adjudication and was assessed costs
and surcharges, resulted in defendant’s conviction because costs and surcharges were a punishment under
federal law]. In De Vega v. Gonzales, 503 F.3d 45, 48–49 (1st Cir. 2007) the court determined that a
continuation of defendant’s case under Mass. law without a finding of guilt was a conviction where it was
based upon an admission of facts sufficient for a finding of guilt and restitution was ordered, because the
restitution order was punitive and the admission could ripen into a guilty plea. See also Mejia Rodriguez v.
DHS, 629 F.3d 1223, 1228 (11th Cir. 2011) [sentence to “time served” is a conviction because it qualifies as a
sentence under Fed. R. Crim. P. 32(k)(1)]; Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005) [participation in
Michigan’s Youthful Offender Trainee Program is a penalty pursuant to the immigration definition of
conviction]; Gonzalez v. O’Connell, 355 F.3d 1010 (7th Cir. 2004) [treating probation as a punishment for
purposes of statutory definition of conviction]. However, the Ninth Circuit has determined that a suspended
nonincarceratory sanction (i.e., suspended fine) is not a punishment because INA §101(a)(48)(B) only
addresses suspension of incarceration. Retuta v. Holder, 591 F.3d 1181, 1187–89 (9th Cir. 2010) [controlled
substance violation that resulted in a stayed fine was not a conviction]; see also U.S. v. Canelas-Amador, 837
F.3d 668 (6th Cir. 2016) [where state court did not have an opportunity to impose a sentence after a notation
that there was an acceptance of plea of guilty under Tennessee law, defendant was not convicted for
purposes of illegal reentry where circuit relied on the immigration definition of conviction].
6. Municipal/City Ordinance Violation is a Conviction—In Matter of Cuellar, 25 I&N Dec. 850, 852-55 (BIA
2012) the Board determined that a formal judgment of guilt for violating a Wichita, Kansas municipal
ordinance regarding the possession of marijuana is a conviction under INA §101(a)(48)(A) even where there
was no absolute right to appointed counsel or jury trial unless a punishment of imprisonment would be
imposed. See also Dominguez-Herrera v. Sessions, 850 F.3d 411, 415-18 (8th Cir. 2017) [municipal judgment
for theft under Kansas Uniform Public Offense Code is a criminal conviction and a CIMT barring cancellation].
7. Court-Martial is a Conviction—Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008) [court-martial is a

conviction under INA §101(a)(48)(A) and cannot be collaterally attacked on grounds that defendant was not
advised of rights under Art. 36 of the Vienna Convention]. So too is a special court martial. Gourzong v. U.S.
Att’y Gen., 826 F.3d 132, 136-41 (3d Cir. 2016). But see Gubbels v. Hoy, 261 F.2d 952, 954 (9th Cir. 1958)
[ruling on former JRAD provision]; Matter of Gian, 11 I&N Dec. 242 (BIA 1965) [same]; 9 FAM 302.3-2(B)(3)
(g)(3). See generally U.S. v. Denedo, 556 U.S. 904 (2009) [jurisdiction to seek coram nobis relief where
respondent pleaded to military charge on positive misadvice of criminal attorney that there would be no
immigration consequences to plea]. However, certain court martial proceedings—summary court-martial—
may lack the procedural due process protections necessary to be considered a conviction for immigration
purposes. Page 352
8. Conviction of USC Under Adam Walsh Act—The BIA believes that the definition of conviction under the
INA applies to USCs barred from petitioning under the Adam Walsh Act. Matter of Calcano De Millan, 26 I&N
Dec. 904, 905-10 (BIA 2017) [notwithstanding the clear reference in INA §101(a)(48)(A) that the “term
conviction means, with respect to an alien.”the BIA determined that it applied to a USC petitioning under the
Adam Walsh Act where petitioner’s rehabilitative pardon under Cal. Penal Code §1203.4 would be
considered a conviction under 101(a)(48)(A)].
9. Judgment of Guilt Not Necessarily a Conviction—Where a state allows for the entry of a judgment of guilt
under a standard less than “beyond a reasonable doubt” and the state need not provide counsel or a jury, a
“criminal conviction” is not a conviction under INA §101(a)(48)(A). Matter of Eslamizar, 23 I&N Dec. 684 (BIA
2004) [a finding of guilt of 3rd degree theft in a proceeding conducted under Or. Rev. Stat. §153.076 that
allows for a conviction by preponderance of the evidence and no right to counsel or jury trial is not a
conviction under the INA. Matter of C-R-, 8 I&N Dec. 59 (BIA 1958) overruled]. See also Castillo v. U.S. Att’y
Gen., 729 F.3d 296 (3d Cir. 2013) [remanded to BIA given its inconsistent precedent to determine whether
acceptance of a guilty plea with counsel present of shoplifting in violation of N.J. Stat. Ann §2C:20-11 is a
criminal conviction].
10. Pretrial Intervention May Not Be a Conviction—While the federal definition of conviction is controlling, a
person will not be deemed convicted under the INA if there is no plea entered under state law. Iqbal v.
Bryson, 604 F.Supp.2d 822, 825–27 (E.D. Va. 2009) [pretrial diversion used in federal agreement in NY is not
a conviction despite boilerplate language stating that the agreement is conditioned upon defendant
“accepting responsibility for your behavior”]; Matter of Grullon, 20 I&N Dec. 12 (BIA 1989) [Florida’s pretrial
intervention program, Fla. Stat. §944.025, not deemed to result in a conviction]; Matter of Sirhan, 13 I&N
Dec. 592 (BIA 1970) [state coram nobis proceeding vacating conviction means no conviction under former
§241(a)(11)]; Matter of O’Sullivan, 10 I&N Dec. 320 (BIA 1963); 66 No. 19 Interpreter Releases 539–40 (May
15, 1989);Pinho v. Gonzales, 432 F.3d 193, 204–16 (3d Cir. 2005) [where conviction vacated for ineffective
assistance of counsel and defendant repleaded to PTI, he was not considered convicted for immigration
purposes]. See also Ohio v. Kona, 71 N.E.3d 1023 (S.Ct Ohio 2016) [trial court must advise noncitizen
defendant of immigration consequences of pretrial diversion program when defendant admits sufficient facts
to warrant a finding of guilt].
But see Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017) [finding that respondent who accepted PTI under
Texas law but in the process stipulated to his guilt as part of a stipulation of evidence and thereafter agreed
to 24 months of community service, payment of fees, restitution, and no contact with co-defendant was
convicted under INA §101(a)(48)(A) because (A)(i) only requires admission of sufficient facts to warrant guilt
and (A)(ii) some form of punishment; moreover, respondent agreed that any violation of PTI would
automatically result in a conviction based upon his admission of guilt in the stipulation of evidence]; Boggala
v. Sessions, 866 F.3d 563, 567-69 (4th Cir. 2017) [deferred prosecution under N.C. Gen. Stat. §15A-1341(a)
(1) is a conviction where defendant admitted sufficient facts to warrant a finding of guilt by stipulating to the
facts and each element of the crime in the Information to be used against him if brought to trial]; Mendoza-
Saenz v. Sessions, 861 F.3d 720 (8th Cir. 2017) [where respondent participated in Dakota County Minnesota
diversion program but he was required to admit conduct and perform 40 hours of community service, remain
law-abiding, pay restitution and a $480 fee, the court determined it was a conviction despite the charges
being dropped].
11. Vacated Conviction May Not Be a Conviction
11.a. In general—A conviction vacated for a legal defect (and not due to a rehabilitative statute) is not a
conviction for immigration purposes. Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006) [where criminal court
failed to advise defendant of the immigration consequences of his plea pursuant to Ohio Rev. Code
§2943.031, the vacatur, which resulted from a “defect in the underlying criminal proceeding”, is not a
conviction for immigration purposes]; Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000)
[distinguishing Roldan and finding conviction vacated under N.Y. Crim. Proc. Law Art. 440 did not trigger
removability notwithstanding INS’s claim that it was vacated for immigration purposes, because state
vacatur statute required legal defect]; Rodriguez v. U.S. Att’y Gen., 844 F.3d 392, 398-400 (3d Cir. 2016)
[where respondent’s conviction was vacated and he repleaded to what might arguably be a conviction, the
court reversed Page 353 the deportation order because ICE violated his due process rights when it failed
to file new charges giving him notice]; Cruz v. U.S. Att’y Gen., 452 F.3d 240, 246 & n.3 (3d Cir. 2006)
[reversing denial of sua sponte reopening as untimely where numerous unpublished BIA decisions
granted untimely reopening where convicted was vacated]; Alim v. Gonzales, 446 F.3d 1239, 1250–51
(11th Cir. 2006) [where respondent was not advised of the immigration consequences of his plea under
Florida law and his conviction was vacated, the court looked to the coram nobis petition when the order
was ambiguous to determine that the vacatur was on substantive grounds]; Pinho v. Gonzales, 432 F.3d
193, 204–16 (3d Cir. 2005) [conviction vacated for ineffective assistance of counsel and defendant
repleaded to PTI, no conviction for immigration purposes]; Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001)
[reversing deportation where vacatur was on constitutional grounds; Roldan did not apply, and the IJ
improperly placed burden on respondent to prove vacatur was not proper]; 9 FAM 302.3(B)(4)(k)(1)
[recognizing that a vacatur for ineffective assistance of counsel is treated as a substantive reason]. But
see Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. 2007) [due process not violated where the BIA
refused to allow respondent, who was outside the U.S., to reopen proceeding where his conviction was
vacated]; Padilla v. Gonzales, 470 F.3d 1209, 1212–15 (7th Cir. 2006) [where conviction vacated after BIA
appeal and counsel never sought sua sponte review from BIA after government refused to file joint
motion, counsel failed to exhaust administrative remedies and dismissed the petition for review]. But see
William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) [where conviction vacated after departure, the court
distinguished Pena-Muriel and struck down the prohibition in 8 CFR §1003.2(d) on motions to reopen
where the person is outside the U.S. as contrary to INA §240(c)(7)(A)]; Cardoso-Tlaseca v. Gonzales, 460
F.3d 1102 (9th Cir. 2006) [permitting motion to reopen, where deportable conviction vacated after
noncitizen departed under removal order notwithstanding language of 8 CFR §1003.2]. For additional
discussion concerning exceptions to the departure bar, see Chapter 9, Section XIII.F (p.1758), infra.
(1) State Vacatur—Under Cal. Penal Code §1203.43 a defendant who pleaded guilty and received a
deferred entry of judgment after Jan. 1, 1997 may withdraw his plea if he has performed satisfactorily
during the period in which deferred entry of judgment was granted. The court may then reopen and
dismiss the case.
11.b. Exception—Vacatur of the plea must be for a procedural or substantive defect in the underlying
criminal proceeding and not for reasons solely related to post-conviction events such as rehabilitation or
immigration hardship. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering
v. Gonzales, 465 F.3d 263 (6th Cir. 2006) [if the court vacates a conviction for reasons unrelated to the
merits of the underlying criminal proceedings the conviction remains for immigration purposes]; Matter of
Marquez Conde, 27 I&N Dec. 251 (BIA 2018) [reaffirming Pickering and under Brand X declining to follow
Renteria-Gonzales, infra in the 5th Circuit so that a conviction vacated based on a legal defect is not a
conviction for immigration purposes]; Sutherland v. Holder, 769 F.3d 144 (2d Cir. 2014) [same as Poblete];
Poblete Mendoza v. Holder, 606 F.3d 1137, 1141-42 (9th Cir. 2010) [vacatur under Ariz. Rev. Stat. §13-
907 is for a rehabilitative purpose and may be used in removal proceedings]; Saleh v. Gonzales, 495 F.3d
17 (2d Cir. 2007) [affirming Pickering under second step of Chevron analysis, rejecting full faith and credit
argument under 28 USC §1738; and finding that stolen property conviction under Cal. Penal Code
§496(a) that was reduced to a petty offense was still a CIMT for immigration purposes]; Sanusi v.
Gonzales, 474 F.3d 341 (6th Cir. 2007) [where petitioner did not raise any colorable legal basis for
vacating his conviction but solely asked for mercy from the harsh immigration consequences of his plea,
the writ of coram nobis did not vacate plea for immigration purposes]; Ali v. U.S. Att’y Gen., 443 F.3d 804,
810–12 (11th Cir. 2006) [where evidence indicated that respondent sought vacatur because he thought a
First Offender plea would not affect his immigration status, conviction remained]; Ali v. Ashcroft, 395 F.3d
722, 728–30 (7th Cir. 2005) [where parties stipulated to amend conviction of trafficking offense to
misdemeanor possession of THC “simply to avoid deportation,” Pickering applied and respondent’s
conviction for trafficking remained]; Estrada-Ramos v. Holder, 611 F.3d 318, 321 (7th Cir. 2010) [vacatur
for rehabilitative purposes remains a conviction]; Bah v. Cangemi, 489 F.Supp.2d 905, 912–14 (D. Minn.
2007) [no jurisdiction to review AAO decision to withdraw Liberian’s TPS on the grounds that his vacated
conviction for 2nd-degree criminal sexual conduct was still a conviction under Matter of Pickering];
Pequeno-Martinez v. Trominski, 281 F.Supp.2d 902, 926–27 (S.D. Tex. 2003) Page 354 [where order
vacating conviction stated it was “in the interest of justice and equity and to avoid a manifest injustice” it
was still a conviction under Pickering because there was no evidence that conviction was withdrawn from
legal defect]. The Fifth Circuit appears to have gone even further by finding that all vacated convictions
may remain convictions for immigration purposes. Renteria-Gonzalez v. INS, 322 F.3d 804, 812–14 (5th
Cir. 2002) [immigration definition of conviction read broadly to include virtually all vacated convictions
including those vacated for equitable reasons]. But see Larin-Ulloa v. Gonzales, 462 F.3d 456, 461–63
(5th Cir. 2006) [distinguishing Renteria-Gonzalez and finding that a Kansas judgment vacated nunc pro
tunc is the operative judgment]; Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005) [vacating prior decision
that read Renteria-Gonzalez broadly to find a conviction for immigration purposes despite it being vacated
on criminal procedural grounds where government announced it would terminate proceedings based upon
Matter of Pickering]. See also in another context U.S. v. Burke, 863 F.3d 1355, 1359 (11th Cir. 2017)
[quoting U.S. v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) and noting in the resentencing context that
“vacatur in our Circuit wipes the slate clear” and that a vacated sentence becomes “void in its entirety”].
11.c. Burden of Proof—To determine whether a person’s conviction was vacated for substantive or
procedural reasons, one circuit has stated: “The agency must first look to the order itself. If the order
explains the court’s reasons for vacating the conviction, the agency inquiry must end. If the order does not
give a clear statement of reasons, the agency may look to the record before the court when the order was
issued. No other evidence or reasons may be considered.” Pinho v. Gonzales, 432 F.3d 193, 215 (3d Cir.
2005) [where conviction vacated for ineffective assistance of counsel and defendant repleaded to PTI, no
conviction for immigration purposes]. Accord Rodriguez v. U.S. Att’y Gen., 844 F.3d 392, 396-98 (3d Cir.
2016) [IJ/BIA’s speculation that because respondent did not prevail in his efforts to vacate his conviction
on ineffective-assistance-grounds but later obtained a settlement to vacate did not show it was for
immigration purposes]; Alim v. Gonzales, 446 F.3d 1239, 1249–51 (11th Cir. 2006). The inquiry must focus
“on the state court’s rationale for vacating” and the “petitioner’s motive is not the crucial inquiry.” Reyes-
Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) [upholding vacatur absent evidence to the contrary
by the government]. But see Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007) [distinguishing Pickering
and finding that where petitioner did not raise any colorable legal basis for vacating his conviction but
solely asked for mercy from the harsh immigration consequences of his plea, the writ of coram nobis did
not vacate plea for immigration purposes]; Al-Najar v. Mukasey, 515 F.3d 708, 715–16 (6th Cir. 2008)
[following Sanusi and finding that the government met its burden of proof where petitioner filed a motion to
vacate his conviction based upon the judgment having been satisfied, released or discharged]. There is a
split in the circuits regarding who has the burden of proof that a conviction was vacated for other than
procedural or substantive reasons. Compare Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011)
[burden is on the government to prove that it was vacated “solely for rehabilitative purposes”]; Barakat v.
Holder, 621 F.3d 398 (6th Cir. 2010) [once respondent shows conviction was vacated the government has
the burden to show the conviction remains valid for immigration purposes]; Nath v. Gonzales, 467 F.3d
1185, 1188–89 (9th Cir. 2006); and Pickering v. Gonzales, 465 F.3d 263, 269 n.4 (6th Cir. 2006)
[notwithstanding respondent’s immigration motive, the Canadian vacatur of his conviction without
explanation but with citation to authority, was sufficient to vacate the conviction for immigration purposes],
with Andrade-Zamora v. Lynch, 814 F.3d 945, 948-50 (8th Cir. 2016) [petitioner had burden to prove
conviction was vacated for procedural or substantive reason in applying for cancellation and where court
order did not facially state it was vacated for such a reason the burden was not met]. The burden may
also shift to petitioner if she files a motion to reopen based upon vacatur of the conviction. Matter of
Chavez, 24 I&N Dec. 272 (BIA 2007) [for purposes of a motion to reopen, the burden is on the
respondent]; Rumierz v. Gonzales, 456 F.3d 31, 40–41 (1st Cir. 2006) [respondent has burden on motion
to reopen to demonstrate compliance with Pickering standard when the conviction is vacated or modified
after a final order of removal have been entered].
(1) Vacating a conviction does not prohibit the government from bringing new charges. Duhaney v. U.S.
Att’y Gen., 621 F.3d 340, 345-46 (3d Cir. 2010) [after vacatur, BIA’s decision to remand to IJ where
DHS added new charges was not a violation of due process or barred by res judicata]. Page 355
12. Vacating a Sentence—Vacating a sentence is different than vacating a conviction. A party may vacate a
sentence for any reason, including immigration avoidance, and it must be given full faith and credit by the IJs
and BIA. Matter of Cota, 23 I&N Dec. 849 (BIA 2005) [where sentence was modified nunc pro tunc expressly
to avoid deportation as an aggravated felon, IJ and BIA must recognize it. Matter of Pickering distinguished].
But see Viveiros v. Holder, 692 F.3d 1 (1st Cir. 2012) [where sentence vacated for a reason other than a
procedural or substantive error it remains a conviction]; U.S. v. Garza-Mendez, 735 F.3d 1284 (11th Cir.
2013) [court deemed defendant’s conviction an aggravated felony after characterizing the sentence as 12
months of confinement despite state court judge issuing a clarification order that the sentence was for 12
months’ probation, not confinement].
13. Juvenile Proceedings Not a Conviction—Juvenile delinquency proceedings do not constitute a conviction
for immigration purposes. Matter of Devison, 22 I&N Dec. 1362, 1365–66 (BIA 2000). Foreign juvenile
dispositions are evaluated under U.S. standards. Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). But
see Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981). The standards established in the Federal Juvenile
Delinquency Act (FJDA), 18 USC §5031–50 govern whether an offense by a juvenile is considered an act of
delinquency or a crime. Matter of Devison, supra at 1366 [an adjudication under N.Y. youthful offender law,
N.Y. Crim. Proc. Law Art. 720, is equivalent to the FJDA and therefore not a conviction]. But see Cole v. U.S.
Att’y Gen., 712 F.3d 517, 524-26 (11th Cir. 2013) [relying on the language of the statute in finding that a
conviction under South Carolina’s Youthful Offender Act was a conviction of person under 21 notwithstanding
federal YOA because §101(a)(48)(A) makes no distinction based on age and does not carve out an
exception for expungements in the future]; Rangel-Zuazo v. Holder, 678 F.3d 967 (9th Cir. 2012) [minor
charged as adult was convicted under INA as FJDA did not apply and court rejected equal protection
challenge]; Dung Phan v. Holder, 667 F.3d 448 (4th Cir. 2012) [a conviction is set aside under D.C. Youth
Rehabilitation Act, D.C. Code Ann. §24-901 et seq., on rehabilitative grounds and thus remains a conviction
for immigration purposes]; Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278–79 (11th Cir. 2009) [state conviction
of a 15-year-old in adult court is considered a conviction for immigration purposes notwithstanding the FJDA];
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922–23 (9th Cir. 2007) [16-year-old tried as an adult for
voluntary manslaughter is convicted under INA §101(a)(48)(A)]; Uritsky v. Gonzales, 399 F.3d 728 (6th Cir.
2005)[relying on Chevron deference in the BIA’s interpretation of §101(a)(48) and distinguishing Devison,
sentence to probation under Michigan’s Youthful Trainee Act was a conviction]; Vieira Garcia v. INS, 239 F.3d
409, 414–15 (1st Cir. 2001) [17-year-old tried as adult under RI law was an aggravated felon and finding that
the failure to apply the FJDA as a standard for all state convictions does not violate equal protection].
14. State Determination of Whether a Predicate Crime is a Conviction—In certain circumstances a federal
conviction is predicated on whether the state’s action constituted a conviction under state law. For example, a
person may be convicted of an aggravated felony under 18 USC §922(g)(1) because he is a “felon in
possession of a firearm.” However, federal law provides that whether someone is convicted for purposes of
922(g)(1) of the predicate crime is a matter of state law. 18 USC §921(a)(20) [What constitute a crime
punishable by imprisonment for a term exceeding one year “shall be determined in accordance with the law
of the jurisdiction in which the proceedings were held.…”]. In U.S. v. Clarke, 822 F.3d 1213 (11th Cir. 2016)
the 11th Circuit looked to the Florida courts interpretation of Florida’s “felon in possession” statute (Fla. Stat.
§790.23(1)) to determine whether or not Clarke was convicted. The Florida Supreme Court read the statute
to preclude a conviction where the defendant received a withholding of adjudication on the underlying felony.
Because Florida’s law was controlling by virtue of 18 USC §921(a)(20), the court found that the defendant
had not been convicted of a felony and therefore vacated his conviction for a felon in possession of a firearm
under 922(g)(1). See also Matter of Mohamed, 27 I&N Dec. 92, 96 n.5 (BIA 2017).
15. Conviction Not Reviewed—The IJ will generally not look behind the conviction. Matter of Rivera-Valencia,
24 I&N Dec. 484, 491–92 (BIA 2008) [court-martial is a conviction under INA §101(a)(48)(A) and cannot be
collaterally attacked on grounds that defendant was not advised of rights under Art. 36 of the Vienna
Convention]; Matter of Short, 20 I&N Dec. 136 (BIA 1989); Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); Ablett
v. Brownell, 240 F.2d 625 (D.C. Cir. 1957). But see Matter of Martinez-Serrano, 25 I&N Dec. 151 (BIA 2009)
[where removal charge does not Page 356 require a conviction, the IJ is not barred from considering whether
the underlying facts of a conviction prove the removal charge]; Doe v. Gonzales, 484 F.3d 445, 451–53 (7th
Cir. 2007) [IJ erred in not questioning a conviction in an asylum proceeding that was “demonstrably … a
travesty—a parody—of justice”]; Martinez-Benitez v. INS, 956 F.2d 1053 (11th Cir. 1992) [IJ cannot ignore
evidence which contradicts the indictment]. However, where the conviction is vacated, the “vacatur affects the
‘underlying lawfulness’ of the original judgment.” Matter of Thomas, 24 I&N Dec. 416, 420 n.5 (BIA 2007).
16. Enhancement of a Sentence as a Conviction—The BIA, interpreting Apprendi v. New Jersey, 530 U.S.
466 (2000), found that a person can be considered convicted of an enhancement provision for immigration
purposes where the enhancement is proved to a jury beyond a reasonable doubt or admitted by the
defendant, thus becoming an element of the offense. Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007)
[where respondent’s possession of marijuana was in a “drug-free zone,” the enhancement was an element of
the crime and the conviction was therefore more than simple possession of 30 grams of marijuana.
Respondent was ineligible for INA §212(h) relief and Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA
1992) was superseded for post-Apprendi cases].
17. Reason to Believe Even if Conviction Is Vacated—Even if there is no conviction, or conviction is

vacated, a person may, under certain circumstances, still be inadmissible under INA §212(a)(2)(A)(i)(II) or (2)
(C) as being deportable under INA §237(a)(1) where consular or DHS officer has reason to believe person
is/was involved in drug trafficking, or as an admission of the commission of a drug crime. Castano v. INS, 956
F.2d 236 (11th Cir. 1992) [expungement under Federal Youth Corrections Act only bars the use of the
conviction to deny admission, not the use of the underlying facts]; Nunez-Payan v. INS, 815 F.2d 384 (5th Cir.
1987) [use of plea as admission for former INA §212(a)(23) purposes where plea did not result in conviction];
Matter of Favela, 16 I&N Dec. 753 (BIA 1979). See IFM §17.17(a). See also in this chapter “Reason to
Believe Person is a Drug Trafficker,” ¶ III.C.2.d (p.131), supra.
B. Finality of Conviction/Appeals
1. Finality—Finality is a separate requirement from “conviction.” Matter of Punu, 22 I&N Dec. 224 (BIA 1998)
(Rosenberg, concurring and dissenting) [finality a separate requirement from “conviction” for immigration
purposes]. A conviction will be deemed effective for immigration purposes only when it is based on the finality
of a state- or federal-court procedure. Pino v. Landon, 349 U.S. 901 (1955) [Mass. procedure to place
conviction “on file” could not be considered a conviction under INA because it had not attained finality]; Smith
v. Gonzales, 468 F.3d 272 (5th Cir. 2006) [for purposes of the CSA and 21 USC §§844(a) and 841(b)(1)(B) a
drug conviction is not final under the CSA “until the time for seeking discretionary review of the conviction has
elapsed”]. But see Griffiths v. INS, 243 F.3d 45, 49–55 (1st Cir. 2001) [distinguishing Pino in light of IIRIRA
definition of conviction because “finality is no longer a requirement in cases where the adjudication of guilt
has been withheld” but leaving open the issue whether under Mass. “on file” procedure the defendant had
any punishment imposed].
2. Appeals—Prior to IIRIRA, a conviction was not deemed final until a direct appeal as of right had been
exhausted or waived. See, e.g., Matter of Polanco, 20 I&N Dec. 894, 897 (BIA 1994) [collecting cases]. The
circuits are split on whether IIRIRA’s addition of INA §101(a)(48)(A) abrogated this rule. Compare Orabi v.
U.S. Att’y Gen., 738 F.3d 535, 539-43 (3d Cir. 2014) [language in Matter of Ozkok that a “conviction does not
attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has
been exhausted or waived” was not eliminated by IIRAIRA] withPlanes v. Holder, 652 F.3d 991, 995-96 (9th
Cir. 2011) [noting change post-IIRIRA, a conviction becomes final for immigration purposes when trial court
enters judgment and not when appeal is decided]; Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290–91 (5th
Cir. 2007) [pending appeal of a conviction does not affect finality and BIA did not err in treating a conviction
on appeal as a final conviction for immigration purposes]; Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th
Cir. 2004) [IIRIRA treats a person convicted once a court enters a formal judgment of guilt]; Moosa v. INS,
171 F.3d 994, 1008–10 (5th Cir. 1999) [IIRIRA eliminates finality requirement]. The Second Circuit has made
conflicting statements in dicta. CompareWalcott v. Chertoff, 517 F.3d 149, 155 (2d Cir. 2008) [stating that
“[t]he decision to appeal a conviction … suspends an alien’s deportability … until the conviction becomes
final…”] withPuello v. BCIS, 511 F.3d 324, 332 (2d Cir. 2007) [observing in dicta that IIRIRA “eliminate[d] the
requirement that all direct appeals be exhausted or Page 357 waived before a conviction is considered final
under the statute”]. See also Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009) [a pending late-
reinstated appeal of a criminal conviction under NY Crim. Proc. L. §460.30 is a final conviction for
immigration purposes]. Cardenas Abreu was vacated, however, by the Second Circuit which found that a
reinstated appeal is “equivalent to any other direct appeal for the purposes of finality.” Abreu v. Holder, 378
F.App’x 59 (2d Cir. May 24, 2010). See also Matter of Montiel, 26 I&N Dec. 555 (BIA 2015) [noting the split in
the circuits in regard to finality of a conviction but holding that an IJ may administratively close proceedings
during the pendency of respondent’s direct appeal of his conviction].For pre-IIRIRA cases see Will v. INS,
447 F.2d 529 (7th Cir. 1971); Marino v. INS, 537 F.2d 686 (2d Cir. 1976); Matter of Thomas, 21 I&N Dec. 20,
21 n.1 (BIA 1995). A conviction vacated for nonimmigration reasons or overturned on appeal is an
appropriate basis for reopening proceedings. DeFaria v. INS, 13 F.3d 422, 423 (1st Cir. 1993) [and cases
cited therein].
3. Post-Conviction Remedies—Post-conviction remedies do not affect the finality of a conviction while still
pending (e.g., coram nobis petition or habeas corpus petition while being pursued do not affect the finality of
the conviction if DHS seeks to deport/exclude alien in interim). Similarly, an appeal not-of-right to a state’s
highest court or an appeal or petition for certiorari to the U.S. Supreme Court does not affect the finality of the
conviction. Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir. 1989). An untimely appeal to the first appellate
court (direct appeal) will also be considered a conviction, even if the court has a procedure to accept appeals
out of time. Matter of Polanco, 20 I&N Dec. 894 (BIA 1994).
4. Withheld Execution—Withholding execution of sentence does not affect finality of conviction.
4.a. When sentence imposed but execution is suspended it is still regarded as a final conviction; Arrellano-
Flores v. Hoy, 262 F.2d 667 (9th Cir. 1958); Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). It is also regarded
as a sentence for that period of time. INA §101(a)(48)(B). Matter of Esposito, 21 I&N Dec. 1 (BIA 1995).
But see Retuta v. Holder, 591 F.3d 1181, 1187–89 (9th Cir. 2010) [controlled substance violation that
resulted in a stayed fine was not a conviction because a suspended nonincarceratory sanction is not a
punishment as INA §101(a)(48)(B) only treats suspended incarceration as a sentence].
4.b. Parole after finding of guilt is a final conviction; Gutierrez v. INS, 323 F.2d 593 (9th Cir. 1963).
5. Collateral Attack of Conviction in EOIR Hearing or Challenge to IJ Hearing—A criminal conviction

cannot be collaterally attacked in EOIR proceedings or in an action challenging proceedings. Gelin v. U.S.
Att’y Gen., 837 F.3d 1236, 1247 (11th Cir. 2016) [rejected void for vagueness challenge under Johnson to
state statute of conviction in removal proceedings because respondent “is essentially raising a collateral
challenge to the validity of his conviction”]; Mondragón v. Holder, 706 F.3d 535, 543-44 (4th Cir. 2013)
[rejecting collateral attack in removal based upon ineffective assistance in criminal case and citing Custis v.
U.S., 511 U.S. 485 (1994) and Daniels v. U.S., 532 U.S. 374 (2001)]; Vasiliu v. Holder, 651 F.3d 1185 (10th
Cir. 2011) [Supreme Court’s decision in Padilla v. Kentucky did not alter the court’s lack of jurisdiction to
entertain a collateral challenge to removal order]; Waugh v. Holder, 642 F.3d 1279 (10th Cir. 2011) [same];
Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. 2011) [convictions for theft of personal property
and receipt of stolen property involving the same property are impermissible under California law but they
may not be collaterally attacked in removal proceeding to avoid an aggravated felony determination]; Al-Najar
v. Mukasey, 515 F.3d 708, 714–15 (6th Cir. 2008) [cannot collaterally attack state court conviction that is the
basis for removal in the review of the BIA decision in circuit court]; Abiodun v. Gonzales, 461 F.3d 1210, 1217
(10th Cir. 2006) [cannot collaterally attack criminal conviction in removal proceedings]; Resendiz v. Kovensky,
416 F.3d 952, 960–61 (9th Cir. 2005) [cannot collaterally attack, in an 28 USC §2241 habeas action, state
court conviction that forms the basis for DHS custody]; Taylor v. U.S., 396 F.3d 1322, 1330 (11th Cir. 2005)
[barring collateral challenge to conviction in habeas seeking review of removal order]; Broomes v. Ashcroft,
358 F.3d 1251, 1255 (10th Cir. 2004) [cannot collaterally attack state court expired conviction by resort to
§2241]; Drakes v. INS, 330 F.3d 600 (3d Cir. 2003) [following S.Ct. decisions in Lackawanna Cnty. Dist.
Attorney v. Coss, 532 U.S. 394 (2001) and Daniels v. U.S., 532 U.S. 374 (2001), petitioner could not
challenge the constitutionality of the conviction that resulted in removal by suing INS through §2241];
Mohammed v. Ashcroft, 261 F.3d 1244, 1251 (11th Cir. 2001) [“If the Florida trial court erred … then [the
petitioner’s] remedy is a collateral attack on the underlying convictions in Florida Page 358 state court, not a
judicial determination, in the context of a Petition for Review of [a] BIA decision, that he must as a matter of
Due Process be eligible for relief from removal”]; Contreras v. Schiltgen, 151 F.3d 906 (9th Cir. 1998) [cannot
collaterally attack state court conviction in habeas proceeding against INS]; Mansoori v. INS, 32 F.3d 1020,
1023–24 n.4 (7th Cir. 1994) [and cases cited therein]; Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir.
1993); De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) [IJ not authorized to consider the validity of the
criminal conviction]; Trench v. INS, 783 F.2d 181 (10th Cir. 1986); Zinnanti v. INS, 651 F.2d 420 (5th Cir.
1981); Martinez v. Lockyer, 453 F.Supp.2d 1150 (C.D. Cal. 2006) [cannot collaterally attack a state conviction
in a federal coram nobis proceeding challenging removal]; U.S. v. Gomez, 945 F.Supp.2d 1359 (S.D. Fla.
2013) [extending prohibition on collateral attack to denaturalization proceedings and also rejected Padilla
challenge due to Chaidez]; Tinoco v. Ridge, 359 F.Supp.2d 1042, 1053–54 (S.D. Cal. 2005) [cannot
collaterally challenge conviction even if the sentence is still pending]; Neyor v. INS, 155 F.Supp.2d 127
(D.N.J. 2001) [following S.Ct. decisions in Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394 (2001) and
Daniels v. U.S., 532 U.S. 374 (2001), petitioner could not challenge through §2254 or §2241 a state court
conviction by suing INS]; Matter of Cuellar, 25 I&N Dec. 850, 855 (BIA 2012) [rejected Padilla challenge to
municipal conviction for possession of marijuana]; Matter of Rivera-Valencia, 24 I&N Dec. 484, 491–92 (BIA
2008) [court-martial is a conviction under INA §101(a)(48)(A) and cannot be collaterally attacked on grounds
that defendant was not advised of rights under Art. 36 of the Vienna Convention]. A foreign conviction may be
more susceptible to a collateral attack. Tahan v. Hodgson, 662 F.2d 862 (D.C. Cir. 1981) [finding prejudice
contrary to public policy]. A person may collaterally attack his conviction, even if by plea, for illegal reentry
when he was a derivative U.S. citizen. Perez v. U.S., 502 F.Supp.2d 301 (N.D.N.Y. 2006) [procedural default
rules were excused because maintaining conviction would be miscarriage of justice under Murray v. Carrier,
477 U.S. 478, 495 (1986)].
C. Guilty Pleas
1. Plea and Restraint Is a Conviction—A guilty plea coupled with a court-ordered restraint on liberty is a
conviction for immigration purposes.
2. Judge Must Advise Noncitizen of Immigration Consequences—Some states require the court to advise
defendant of the immigration consequences before pleading, and if the defendant is not so advised the
conviction may in some cases be vacated. Alaska: Alaska R. Crim. P. 11(c)(3); Arizona: Ariz. R. Crim. P.
17.2; California: Cal. Penal Code §1016.5; Connecticut: Conn. Gen. Stat. §54-1j; District of Columbia:
D.C. Code §16-713; Florida: Fla. R. Crim. P. 3.172(C)(8) ; DeAbreu v. State, 593 So.2d 233 (Fla. 1st DCA
1991) [reversing plea where judge failed to advise defendant pursuant to Florida regulation]; Georgia: Ga.
Code Ann. §17-7-93; Hawaii: Haw. Rev. Stat. §802E; Idaho: Idaho Crim. R. 11(d)(1); Illinois: 725 Ill. Comp.
Stat. 5/113-8; Iowa: Iowa R. Crim. P. 2.8(2)(b); Maine: Me. R. Crim. P. 11(h); Maryland: Md. Rule 4-242(e);
Massachusetts: Mass. Gen. Laws Ann. ch. 278 §29D; Commonwealth v. Hilaire, 777 N.E. 2d 804 (Mass.
2002) [new trial ordered where judged failed to advise defendant during plea colloquy of immigration
consequences]; Minnesota: Minn. R. Crim. P. 15.01 ¶10(d) (felony cases); Minn. R. Crim. P. 15.02 ¶2
(misdemeanor cases); Montana: Mont. Code Ann. §46-12-204; Nebraska: Neb. Rev. Stat. §29-1819.02;
New Mexico: N.M. Dist. Ct. R. Crim. P. 5-303 (E)(5); New York: N.Y. Crim. Proc. Law §220.50(7); People v.
Peque, 3 N.E.3d 617 (N.Y. Ct. App. 2013) [a failure to advise a noncitizen defendant about the deportation
consequences of a plea in some cases may violate due process]; North Carolina: N.C. Gen. Stat. §15A-
1022(a)(7); Ohio: Ohio Rev. Code §§2937.06, 2943.031(A); Ohio v. Kona, 71 N.E.3d 1023 (S.Ct Ohio 2016)
[trial court must advise noncitizen defendant of immigration consequences of accepting pretrial diversion
program when in the course of doing so he may admit sufficient facts to warrant a finding of guilt]; Oregon:
Or. Rev. Stat. §135.385(2)(d); Puerto Rico: P.R. Laws Ann. tit. 34, App. II, Rule 70; Rhode Island: R.I. Gen.
Laws §12-12-22; Machado v. State, 839 A.2d 509 (R.I. 2003) [where RI statute requires judge to inform
defendant of 3 potential immigration consequences of his plea and he provides only one, conviction was
vacated]; Texas: Tex. Crim. Proc. Code Ann. §26.13; Vermont: Vt. Stat. Ann. tit. 13, §6565; Washington:
Wash. Rev. Code §10.40.200; Wisconsin: Wis. Stat §971.08; State v. Valadez, 874 N.W.2d 514 (Wis. 2016)
[reversed denial of motion to withdraw plea and read “likely” to deported broadly to invoke statute]. It is worth
noting that in Lee v. U.S., 582 U.S. __, 137 S.Ct. 1958, 1967-68 and n.4 (2017) a defendant’s conviction
could be vacated, despite a judge’s colloquy warning the defendant of the Page 359 immigration
consequences of his plea, where contemporaneous evidence indicated that the determinative factor for the
defendant was protecting his immigration status and he was given positive misadvice by his attorney that
appeared to undermine the judge’s colloquy.
3. Counsel Must Advise Noncitizen of Immigration Consequences of Plea
3.a. In General—The Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010), held that defense counsel,
under the Sixth Amendment, in a criminal case “must inform her client whether his plea carries a risk of
deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a
consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in
this country demand no less.” 559 U.S. at 374. The Court recognized that the “landscape of federal
immigration law has changed dramatically over the last 90 years,” including the removal of JRADs, that
“these changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal
conviction,” and that the “recent changes in our immigration law have made removal nearly an automatic
result for a broad class of noncitizen offenders.” 559 U.S. at 360, 364. The Court also found that:
“Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal
process, uniquely difficult to classify as either a direct or a collateral consequence” and therefore “advice
regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to
counsel.” 559 U.S. at 366. In light of these findings, the Court applied the standards under Strickland v.
Washington, 466 U.S. 668 (1984) [i.e., whether counsel’s representation “fell below an objective standard
of reasonableness” and whether “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”] and rejected the view that only “affirmative
misadvice” regarding immigration status could be the basis for an ineffective assistance claim. 559 U.S.,
at 369–70. A counsel’s failure to inform the noncitizen of the immigration consequences of his plea can
now be the basis for an ineffective assistance claim under the Sixth Amendment. See also Missouri v.
Frye, 566 U.S. 134 (2012) [failed to communicate plea offer] and Lafler v. Cooper, 566 U.S. 156 (2012)
[ineffective assistance in advising client to reject plea] in finding ineffective assistance of counsel in the
plea stage. See U.S. v. Rodriguez-Vega, 797 F.3d 781 (9th Cir. 2015) [where the immigration statute or
case law expressly identifies the offense as a ground for removal, “the deportation consequences is truly
clear.” Accordingly trial counsel was required to advise petitioner that his conviction rendered her removal
virtually certain or words to that effect]; U.S. v. Akinsade, 686 F.3d 248 (4th Cir. 2012) [positive misadvice
by counsel was not cured by the district judge stating that defendant’s plea “could lead” to deportation
because “the specificity and breath” of the admonishment was not sufficient given the misadvice and
consequences]; U.S. v. Bonilla, 637 F.3d 980 (9th Cir. 2011) [treating counsel’s failure to advise about
immigration consequences as constituting “fair and just reason” to permit defendant to withdraw his plea
pursuant to Fed. R. Crim. P. 11(d)(2)(B)]. See also prior lower court decisions in U.S. v. Ortega-Ascanio,
376 F.3d 879 (9th Cir. 2004) [permitting withdrawal of plea before sentencing where defendant argued that
intervening St. Cyr decision was basis to dismiss indictment for illegal reentry because IJ failed to inform
him of INA §212(c) relief though he informed him of cancellation but only if he did not commit aggravated
felony]; U.S. v. Couto, 311 F.3d 179 (2d Cir. 2002) [vacated guilty plea based on counsel’s incorrect advice
that the plea would not necessarily lead to deportation]; Downs-Morgan v. U.S., 765 F.2d 1534, n.15 (11th
Cir. 1985) [where alien was improperly advised and raised asylum claim because of fear of imprisonment
and execution he is entitled to vacate plea]; Sasonov v. U.S., 575 F.Supp.2d 626 (D.N.J. 2008) [positive
misadvice regarding immigration met Strickland-Hill standard of ineffective assistance where defendant
would not have been found guilty or would have pleaded to lesser offense]; U.S. v. Shapiro, 16 FRD 499
(E.D. Wis.), dismissed, 222 F.2d 836, 840 (7th Cir. 1955) [granting relief where defendant thought he was
USC]; Janvier v. U.S., 793 F.2d 449 (2d Cir. 1986) [ineffective assistance of counsel for failure to inform
alien of former right to apply for JRAD or for failing to file recommendation under 8 USC §1251(b)]. But
see U.S. v. Sandoval, 390 F.3d 1294 (10th Cir. 2004)[upholding district court’s refusal to withdraw plea
where respondent could not demonstrate it was reasonably likely he would have received §212(c) waiver
even if properly informed of it]; Zhang v. U.S., 543 F.Supp.2d 175 (E.D.N.Y. 2008) [lawyer’s advice that
client may be deported where crime was not definitively an aggravated felony is not ineffective
assistance]. Page 360
Under Supreme Court decisions, ineffective assistance of counsel standard addressed in Strickland v.
Washington, 466 U.S. 668 (1984); Wong v. Belmontes, 558 U.S. 15 (2009); McMann v. Richardson, 397
U.S. 759, 771 (1970). See also Lozada v. Deeds, 498 U.S. 430 (1991) (per curiam); Hill v. Lockhart, 474
U.S. 52, 58 (1985); Blackledge v. Allison, 431 U.S. 63 (1977). See also McCarthy v. U.S., 394 U.S. 459
(1969); Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970); Matter of Kaneda, 16 I&N Dec. 677 (BIA 1979). To
prevail in a claim under Strickland/Padilla, the applicant must “convince the court that a decision to reject
the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356,
372 (2010). But rationality in this context does not necessarily mean that the defendant has a strong
probability of winning his criminal case. Rather, the inquiry focuses on the defendant’s contemporaneous
decisionmaking and where the determinative factor for the defendant was his concern over mandatory
deportation, his plea would be vacated even where his chances of prevailing in his criminal case may be
like throwing a “Hail Mary.” Lee v. U.S., 582 U.S. __, 137 S.Ct. 1958, 1964-66 (2017) [vacated plea for
ineffective assistance where there was a reasonable probability that the defendant would have gone to
trial despite little chance of prevailing; the prejudice to the defendant was not his likelihood of success at
trial but in the failure to correctly inform him of the consequences of the plea on the issue that matter the
most to him—the certainty of deportation]. See also U.S. v. Rodriguez-Vega, 797 F.3d 781, 788, 790 (9th
Cir. 2015) [finding that defendant can demonstrate prejudice by showing that she would have gone to trial
or negotiated a better plea bargain and that the court’s warning of possible removal did not cure the
attorney’s deficient advice where the plea resulted in virtually certain removal]; [Kovacs v. U.S., 744 F.3d
44, 52 (2d Cir. 2014) [prejudice in incorrect advice case can be shown by reasonable probability that the
petitioner could have negotiated a plea that did not impact immigration status or that he would have
litigated an available defense]; U.S. v. Akinsade, 686 F.3d 248 (4th Cir. 2012) [but for counsel’s misadvice
defendant would have risked going to trial and disputed the amount of the fraud]. But see U.S. v.
Batamula, 823 F.3d 237, 243 (5th Cir. 2016) (en banc) [defendant could not show prejudice where he was
already deportable for failing to maintain nonimmigrant status before he pleaded guilty to the charge
because “it would not have been rational for him to proceed to trial in the hopes of avoiding deportability
under another subsection of §1227”]; U.S. v. Fazio, 795 F.3d 421, 428 (3d Cir. 2015 [where attorney failed
to warn of certain deportation, any error cured by court warning]; Abraham v. U.S., 699 F.3d 1050, 1053
(8th Cir. 2012) [a defendant cannot satisfy Strickland’s prejudice prong when “the PSR indicated a
likelihood that [the defendant] would be deported if convicted; [the defendant] confirmed that he had read
the PSR, discussed it with his counsel, and understood it; and [the defendant] never moved to withdraw
his guilty plea.”]. In one court’s view, the applicant must also exhaust his remedies pursuant to 8 USC
§1326(d). U.S. v. Martinez, 843 F.Supp.2d 136 (D. Mass. 2012) [rejected claim that 1326 does not apply
to Padilla].
3.b. Prosecutor’s Ethical Duty in Negotiating Plea With Noncitizen Defendant—When a prosecutor
negotiates a plea with a noncitizen subject to deportation does the prosecutor have an ethical obligation to
address the deportation considerations? The Virginia State Bar believes that the prosecutor does have
that obligation. Virginia Legal Ethics Opinion, 18-6 (Mar. 19, 2015), available at
http://www.vsb.org/docs/LEO/1876.pdf [a prosecutor commits ethical misconduct if he pleads a noncitizen
defendant, without counsel, and without a plea colloquy by the court as to deportation, to a charge he
knows will result in defendant’s deportation without advising him to get immigration counsel].
3.c. Federal Rule Change Post-Padilla—Fed. R. Crim. P. 11(b)(1)(O) has been added requiring judges to
advise defendants that “if convicted, a defendant who is not a United States citizen may be removed from
the United States, denied citizenship, and denied admission to the United States in the future.” The rule
provides for a “generic warning rather than specific advice concerning the defendant’s individual
situation.” Communication from the Chief Justice, H.R. Doc. 113-25 (113th Cong., 1st Sess. May 15,
2013) Amendments to the Federal Rules of Criminal Procedure. It is worth noting that the language of the
rule says “may” be removed. Failure by the district court to properly advise a defendant of the immigration
consequences pursuant to Rule 11(b)(1)(O) is a basis to reverse the conviction. U.S. v. Gonzales, 884
F.3d 457 (2d Cir. 2018). Page 361
3.d. Retroactivity of Padilla in State and Federal Courts
(1) Not Retroactive in Federal Court—In Chaidez v. U.S., 568 U.S. 342 (2013), the Court determined that
Padilla does not apply retroactively to federal pleas that were entered before March 31, 2010, the date
Padilla was issued. Applying the standard in Teague v. Lane, 489 U.S. 288 (1989), the Court found
that the right to challenge a collateral consequence of a criminal conviction, given the unique and
harsh consequences of removal was breaking new ground and imposing a new obligation such that
retroactivity, under the Teague standard, was inappropriate. Chaidez, 568 U.S. at 358, n.16, however,
left open the possibility, although small, that a party in federal court could challenge the applicability of
Teague, in the context, of a federal plea, particularly on a claim of ineffective assistance of counsel. In
addition, the Court did not foreclose retroactivity in cases where counsel gave positive misadvice or
where prior state law recognized ineffective assistance. Chaidez, 568 U.S. at 356. At least two circuits
have ruled on positive misadvice claims post-Chaidez. See Kovacs v. U.S., 744 F.3d 44, 50-51 (2d Cir.
2014) [finding that the rule against affirmative misrepresentation was not a new rule in 1999 and
applied to petitioner’s claim that defense counsel rendered ineffective assistance by wrongly advising
him that conviction was not deportable offense]. But see Chavarria v. U.S., 739 F.3d 360, 363 (7th Cir.
2014) [finding that Padilla did not apply retroactively to defendant’s claim of affirmative misadvice
arising from a 2009 conviction because court found no real distinction between failure to advise and
affirmative misadvice claims].
(2) Retroactivity in State Court—Ramirez v. State, 333 P.3d 240 (N.M. S.Ct. 2014) [declined to follow
Chaidez in light of long standing practice in New Mexico to advise criminal defendants of immigration
consequences]; Commonwealth v. Sylvain, 995 N.E.2d 760 (Mass. 2013) [post-Chaidez holding
Padilla retroactive under Massachusetts common law for convictions obtained after Apr. 1, 1997]. But
see Thiersaint v. Commissioner, 111 A.3d 829 (Conn. 2015) [Padilla does not apply retroactively in
Connecticut]; Miller v. State, 77 A.3d 1030 (Md. 2013) [post-Chaidez reversing Denisyuk v. State and
holding that Padilla does not retroactively apply to petitioner’s 1999 state conviction as there was no
independent state basis at that time]; Garcia v. State, 834 N.W.2d 821 (S.D. 2013) [post-Chaidez
holding that Padilla does not apply retroactively under South Dakota law to cases that were decided
prior to Padilla]; Ex Parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013) [post-Chaidez Texas
highest criminal court declined to apply Padilla retroactively as a matter of state habeas law];
Hernandez v. State, 124 So.3d 757 (Fla. 2012) [Padilla does not apply retroactively]; Campos v. State,
816 N.W.2d 48 (Minn. 2012) [holding that Padilla does not apply retroactively because it is a new rule
of criminal procedure]; State v. Gaitan, 37 A.3d 1089 (N.J. 2012) [Padilla is not retroactive and may not
be applied to plea in 2005].
3.e. Other State and Federal Decisions Post-Padilla—The Supreme Court’s decision in Padilla provides a
constitutional minimum for effective assistance of counsel in all states. In Lee v. U.S., 582 U.S. __, 137
S.Ct. 1958, 1967-68 and n.4 (2017) the Court extended and clarified Padilla holding that even where the
chances of success at trial were minimal, a defendant’s conviction could be vacated where
contemporaneous evidence indicated that the determinative factor for the defendant was protecting his
immigration status and he was given positive misadvice by his attorney despite a judge’s colloquy warning
him of the deportation consequences. How Padilla and Lee will be treated in state and lower federal
courts, and how state courts will treat issues such as positive-misadvice post-Padilla and post-Lee,
however, is still an open question. See e.g., Encarnacion v. the State, 763 S.E.2d 463 (Ga. 2014) [S.Ct. of
Ga. recognized right to file habeas for ineffective assistance where defendant pleaded to aggravated
felony after lawyer told him only that it “may” affect his immigration status]; U.S. v. Urias-Marrufo, 744 F.3d
361, 369 (5th Cir. 2014) [“It is counsel’s duty, not the court’s, to warn of certain immigration consequences
and counsel’s failure cannot be saved by a plea colloquy”]; Kovacs v. U.S., 744 F.3d 44, 52 (2d Cir. 2014)
[prejudice in incorrect advice case can be shown by reasonable probability that the petitioner could have
negotiated a plea that did not impact immigration status or that he would have litigated an available
defense]; People v. Martinez Martinez, 304 P.3d 529 (Cal. 2013) [prejudice shown if defendant would not
have pleaded guilty or nolo and would have sought to accept or attempt to negotiate a different plea, even
if it is not reasonably probable that he would have obtained a more favorable outcome]; Hernandez v.
State, 124 So.3d 757 (Fla. 2012) Page 362 [the equivocal warning by the trial judge under Fed. R. Crim.
P. 3.172(c)(8) that a defendant “may” be subject to removal does not remove prejudice resulting from
counsel’s deficiency pursuant to Padilla]; U.S. v. Akinsade, 686 F.3d 248 (4th Cir. 2012) [positive
misadvice by counsel was not cured by the district judge stating that defendant’s plea “could lead” to
deportation because “the specificity and breath” of the admonishment was not sufficient given the
misadvice and consequences]; State v. Favela, 311 P.3d 1213, 1222 (N.M. App. 2013) [holding that “a
court’s warning or advisement to a defendant regarding possible immigration consequences of accepting
a plea is never, by itself, sufficient to cure the prejudice that results from ineffective assistance of counsel
in that regard.”]; U.S. v. Gomez, 945 F.Supp.2d 1359 (S.D. Fla. 2013) [rejected Padilla challenge due to
Chaidez and because it constituted a collateral attack on conviction in immigration (i.e., denaturalization)
proceeding and citizen collaterally estopped from challenging lack of GMC finding]. But see Sanchez v.
State, 890 NW 2nd 716 (Minn. 2017) [counsel’s general warning about immigration consequences did not
amount to ineffective assistance of counsel where statute was unclear and its effect uncertain regarding
sexual abuse of a minor]; State v. Shata, 868 N.W.2d 93 (Wis. 2015) [where counsel told client there was
a strong chance that he would be deported but did not tell him it was a certainty his performance was not
deficient and Padilla does not require otherwise]; State v. Ortiz-Mondragon, 866 N.W.2d 717 (Wis. 2015)
[same].
For state cases prior to Padilla, see State v. Nunez-Valdez, 975 A.2d 418 (NJ 2009) [conviction reversed
where lawyer provided false or misleading information regarding deportation consequence of plea]; State
v. Paredez, 101 P.3d 799 (N.M. 2004) [defense attorneys are obligated to determine the immigration
status of their clients and to advise them of the immigration consequences of a guilty plea; failure to do so
is ineffective assistance]; U.S. v. Russell, 686 F.2d 35, 39 (D.C. Cir. 1982); State v. Sallato, 519 So.2d 605
(Fla. 1988) [“positive misadvice” to alien could render plea involuntary]; Matter of Resendiz, 19 P.3d 1171
(Cal. 2001) [affirmative misrepresentations or erroneous advice can constitute ineffective assistance but
defendant must demonstrate he would not have otherwise pleaded guilty]; People v. Soriano, 240 Cal.
Rptr. 328 (1987); Commonwealth v. Mahedo, 397 Mass. 314 (1986); People v. Guzman, 172 Cal. Rptr. 34
(Ct. App. 1981); People v. Correa, 485 N.E.2d 307 (Ill. 1985); Lyons v. Pearce, 676 P.2d 905 (Or. App.
1984); State v. Malik, 680 P.2d 770 (Wash. 1984); People v. Pozo, 746 P.2d 523 (Colo. 1987) [where
defense counsel is aware that client is alien, he has duty to investigate relevant immigration law].
3.f. Collateral Challenge to Proceeding in Immigration Court—Matos-Santana v. Holder, 660 F.3d 91 (1st Cir.
2011) [motion to reopen filed six years after removal on theory that Padilla allows reopening with no effort
to challenge conviction in criminal court was denied]; Vasiliu v. Holder, 651 F.3d 1185 (10th Cir. 2011)
[Supreme Court’s decision in Padilla v. Kentucky did not alter the court’s lack of jurisdiction to entertain a
collateral challenge to removal order]; Waugh v. Holder, 642 F.3d 1279 (10th Cir. 2011) [rejected collateral
challenge in removal proceeding to conviction on Padilla grounds or claim that government must prove
that the conviction did not violate the Sixth Amendment in removal proceedings]; Alvarado-Fonseca v.
Holder, 631 F.3d 385, 391-92 (7th Cir. 2011) [rejected ex post facto claim based upon language in Padilla
v. Kentucky]; Morris v. Holder, 676 F.3d 309, 316-17 (2d Cir. 2012) [followed Alvarado-Fonseca].
3.g. Other Padilla Related Issues in Removal—Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir.
2011) [post-Kucana court held that IJ did not err in refusing to give another, after several, continuances to
pursue post-conviction relief under Padilla]; Dar v. Olivares, 956 F.Supp.2d 1287, 1293-94 (N.D. Okla.
2013) [followed Morris v. Holder and rejected ex post facto argument post-Padilla in the denial of
naturalization].
4. Alford Plea—Two circuits have held that where a nolo plea does not establish factual guilt, it may not
establish the nature of the conviction under the modified categorical approach. U.S. v. Vidal, 504 F.3d 1072,
1087 (9th Cir. 2007) (en banc) [a nolo plea under People v. West, 477 P.2d 409 (Cal. 1970), does not
establish factual guilt without more]; Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir. 2009) [same]; U.S. v.
Savage, 542 F.3d 959, 966 (2d Cir. 2008) [in a Sentencing Guidelines case, defendant’s Alford plea did not
establish factual basis of his plea for purposes of modified categorical approach]. Accord U.S. v. Alston, 611
F.3d 219, 227 (4th Cir. 2010) [State’s proffer of Page 363 a factual basis for an Alford pleas cannot establish
with the requisite certainty that the conviction triggers a federal sentencing enhancement]. But see Suazo
Perez v. Mukasey, 512 F.3d 1222, 1226 (9th Cir. 2008) [where defendant checked box indicating that police
report was the basis for the plea, factfinder permitted to use police report to identify nature of crime despite
defendant’s entry stated nolo plea]; U.S. v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir. 2006)
[“Whether or not a defendant maintains his innocence, the legal implications of a guilty plea are the same in
the context of the modified categorical approach under Taylor”]. See also Gousse v. Ashcroft, 339 F.3d 91 (2d
Cir. 2003) [Conn. Gen. Stat. 21a-277(a) is an aggravated felony, although use of categorical approach was
complicated by respondent’s Alford plea, in which he did not admit the facts of the plea]. An Alford pleas has
been considered a conviction for immigration purposes. U.S. v. Ramirez-Gonzalez, 755 F.3d 1267, 1272-73
(11th Cir. 2014) [Alford plea under Georgia law is a guilty plea and the collateral consequences, for example,
in sentencing are no different than an ordinary plea]; Ikharo v. Holder, 614 F.3d 622, 632-33 (6th Cir. 2010)
[Alford plea used to deny INA §212(c) relief and withholding because it constitutes a conviction]; Abimbola v.
Ashcroft, 378 F.3d 173, 180–81 (2d Cir. 2004) [Alford plea is a guilty plea and therefore a conviction]. An
Alford plea cannot be taken as admission of guilt for purposes of a reason to believe charge. Garces v. U.S.
Att’y Gen., 611 F.3d 1337, 1348-19 (11th Cir. 2010) [finding that a vacated guilty plea could be used but
noting that an Alford plea could not]; Almanza-Arenas v. Lynch, 815 F.3d 469, 473 n.3 (9th Cir. 2015,
amended 2016) (en banc) [noting that a West plea under California law like a Alford plea is a guilty plea].
5. Not an Admission as to Specifics—A plea of guilt does “not constitute an admission that petitioner
possessed … any particular amount of [the drug]” and an IJ cannot ignore any evidence that contradicts the
indictment. Martinez-Benitez v. INS, 956 F.2d 1053 (11th Cir. 1992).
6. Nolo Plea Combined with Punishment—A nolo contendere plea together with a court-imposed restraint or
punishment on defendant’s liberty is a conviction. See INA §101(a)(48)(A); Qureshi v. INS, 519 F.2d 1174
(5th Cir. 1975).
7. Elements of Offense—Guilty or nolo plea is only conclusive for immigration purposes where conviction
requires all elements for a deportable offense. Soto-Hernandez v. INS, 726 F.2d 1070 (5th Cir. 1984) [guilty
plea to 8 USC §1325 was not conclusive for violation of former INA §241(a)(13), because “for gain” was not
an element of the statute of conviction].
8. Fast Track Pleas—A 4-level downward departure in sentence is offered to defendants under §5K3.1 of
Sentencing Guidelines who agree to the factual basis of the criminal charge and waive the right to file pretrial
motions, appeals and collateral relief (except ineffective assistance of counsel). Applies to defendants
charged under 8 USC §1326. Fast track pleas are legal even if not offered in every district or to every
defendant and the U.S. is not obligated to offer it to every defendant. U.S. v. Castro-Alvarado, 755 F.3d 472,
475-76 (7th Cir. 2014) [in fast-track district, government is not obligated to offer the benefits of a fast-track
plea where defendant had extensive criminal record]; U.S. v. Romo-Villalobos, 674 F.3d 1246, 1251-52 (11th
Cir. 2012) [criteria under 18 USC §3553(a) do not require consideration of fast track pleas and failure to
consider fast track does not create any sentencing disparities]; U.S. v. Andújar-Arias, 507 F.3d 734, 741–45
(1st Cir. 2007) (and cases cited therein) [“Because Congress has authorized fast-track programs with the
understanding that the programs would create sentencing disparities, we find that such disparities are not
unwarranted as a matter of law”]; U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006) [post-Booker finding that disparity
between districts on fast-track pleas does not violate 18 USC §3553(a)(6)]. A sentence is not illegal simply
because it is imposed in a district that does not have fast-track pleas. U.S. v. Lopez, 650 F.3d 952 (3d Cir.
2011) [DOJ’s implementation of fast-track program on a district-by-district basis and the result that some
defendants do not receive a reduced sentence is rational and does not violate the Fifth Amendment]; U.S. v.
Perez-Vasquez, 570 F.3d 692, 695–97 (6th Cir. 2009) [post-Booker district court not required to offer
concurrent sentence with state court violations because of fast-track disparity in sentencing]; U.S. v. Gomez-
Herrera, 523 F.3d 554, 557–64 (5th Cir. 2008) [post-Rita and Kimbrough and following 3553(a) guidelines,
lack of fast-track pleas are not an “unwarranted” disparity]; U.S. v. Vargas, 477 F.3d 94, 98–100 (3d Cir.
2007) [post-Booker sentencing under §3553(a)(6), although required to consider disparities in sentences,
need not address disparity between fast-track and non–fast-track sentences or granting a downward
departure because the disparity was mandated by Congress]; U.S. v. Martinez-Martinez, 442 F.3d 539, 541–
43 (7th Cir. 2006) [sentence is not unreasonable simply because it was imposed in a district that does not
have a Page 364 fast-track program]; U.S. v. Hernandez-Fierros, 453 F.3d 309, 312–13 (6th Cir. 2006) [the
existence of fast track pleas in certain districts does not require below-Guideline sentence to avoid disparate
treatment]; U.S. v. Estrada-Plata, 57 F.3d 757 (9th Cir. 1995). In some circuits, a downward departure in
sentencing based upon the disparity between fast-track and non–fast-track district has been reversed. U.S. v.
Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008) [sentencing court may not rely solely on a sentencing disparity
created by the fast-track provision to support a downward departure from the sentencing guideline range];
U.S. v. Arevalo-Juarez, 464 F.3d 1246 (11th Cir. 2006) [same]; U.S. v. Anaya Castro, 455 F.3d 1249, 1250–
53 (11th Cir. 2006) [same]; U.S. v. Gonzalez-Alvarado, 477 F.3d 648, 651–52 (8th Cir. 2007) [impermissible
for district court to lower sentence based upon absence of fast rack]; U.S. v. Galicia-Cardenas, 443 F.3d 553
(7th Cir. 2006) [following Martinez-Martinez,reversing a downward departure given because the person was
not in a fast-track district and the failure to give the departure would result in sentencing disparities].
However, one circuit has determined that it may consider the disparities between fast-track and non–fast-
track districts in calculating an appropriate sentence. U.S. v. Montes-Pineda, 445 F.3d 375, 379–80 (4th Cir.
2006) and another has said the judge committed error when he determined he lacked the discretion to
consider lack of fast-track in deciding a downward departure. U.S. v. Jimenez-Perez, 659 F.3d 704, 711 (8th
Cir. 2011). Also, post-Kimbrough the Third Circuit has re-evaluated its position in Vargas and concluded that
a district court can consider the variance where the person would have qualified for fast-track and that he
would have taken it if he was in a district with fast-track pleas. U.S. v. Arrelucea-Zamudio, 581 F.3d 142 (3d
Cir. 2009). In the Ninth Circuit the court does not review the decision to deny a downward departure under
Fast-Track except as part of the overall reasonableness of the sentence. U.S. v. Rosales-Gonzales, 801 F.3d
1177 (9th Cir. 2015) [court does not review sentencing departures except in the context of the substantive
reasonableness of the sentence and noted that district courts have discretion to reject Fast-Track].
8.a. Fast-Track and Bail—Where defendant opts-out of the Fast-Track program he is eligible for a bail
hearing. U.S. v. Lizardi-Maldonado, 275 F.Supp.3d 1284 (D. Utah 2017) [a decision to opt-out of the Fast-
Track program constitutes a material change warranting a reopening of defendant’s bail hearing and court
granted bail under the Bail Reform Act].
9. Effect of Withdrawn Plea—Where no conviction exists because plea withdrawn, then court will remand
immigration case back to IJ. Quedraogo v. INS, 864 F.2d 376 (5th Cir. 1989). For further discussion of
vacaturs, see in this part “Vacated Conviction May Not Be a Conviction,” ¶ A.11 (p.352), supra.
D. Foreign Convictions—Generally, foreign convictions cannot be collaterally attacked. Chiaramonte v. INS, 626
F.2d 1093 (2d Cir. 1980) [violates comity to permit challenge]. But see Lennon v. INS, 527 F.2d 187 (2d Cir.
1975). For a discussion regarding in absentia foreign convictions and those not in compliance with U.S. law, see
in this chapter “Foreign Conviction,” ¶ III.C.1.b(13) (p.112), supra. Conviction analogized to Title 18 of U.S. Code
or D.C. Code in determining its nature. Moreover, if foreign proceeding violates U.S. public policy or reflects
fraud or prejudice, it can be attacked. Tahan v. Hodgson, 662 F.2d 862 (D.C. Cir. 1981). Expungement of foreign
drug-related conviction pursuant to a foreign rehabilitation statute will not prevent a finding of deportability even
if the expungement were equivalent to the FFOA. Matter of Dillingham, 21 I&N Dec. 1001 (BIA 1997). The
Board’s decision in Dillingham, was reversed in Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) [BIA’s refusal to
recognize a foreign expungement for first time offenders under Great Britain’s Rehabilitation of Offenders Act of
1974 violated equal protection]. However, the Ninth Circuit sitting en banc reversed Dillingham prospectively for
all convictions after July 14, 2011.Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) [equal
protection does not require it be treated the same as the FFOA]. Accord Danso v. Gonzales, 489 F.3d 709 (5th
Cir. 2007) [finding no equal protection violation in the BIA’s refusal to equate a “spent” drug conviction under UK
with the FFOA and questioning whether the FFOA survived the definition of conviction under 8 USC §1101(a)
(48)(A)]; Elkins v. Comfort, 392 F.3d 1159 (10th Cir. 2004) [equal protection not violated by refusal to extend
FFOA treatment to foreign expunged conviction].
E. Misprision; Solicitation; Accessory—The BIA and the federal courts do not treat the immigration
consequences of inchoate offenses like misprision, solicitation, and accessory consistently.
1. Solicitation—The BIA, however, maintains that it is “appropriate to look at the substantive crime[ ] to
determine whether inchoate offenses, such as attempt, conspiracy, accessory before the fact, facilitation, or
solicitation constitute crimes involving moral turpitude.” Matter of Gonzalez Romo, 26 I&N Dec. 743, 746 (BIA
2016) Page 365 [finding solicitation to possess marijuana for sale under Ariz. Rev. Stat. §§13-1002 and 13-
2405(A)(2) is a CIMT because the underlying crime is a CIMT]. The BIA also treats a conviction for
solicitation of a controlled substance offense as a deportable offense. Matter of Zorilla-Vidal, 24 I&N Dec. 768
(BIA 2009) [reaffirming Beltran outside Ninth Circuit]; Matter of Beltran, 20 I&N Dec. 521 (BIA 1992);
Hernandez-Aguilar v. Holder, 594 F.3d 1069 (9th Cir. 2010) [Cal. Health & Safety Code §11379(a) does
categorically qualifies for removal, even if there is a solicitation component, as long as the substance
involved is a controlled substance]; Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) [under modified
categorical approach Cal. Health & Safety Code §11352(a) is a drug crime and not a generic solicitation
statute]; Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) [solicitation to possess at least 4 pounds
of marijuana for sale, Ariz. Rev. Stat. §13-1002(A) & (B)(2) and §13-3405(A)(2) & (B)(6) is a CIMT; an
inchoate crime is a CIMT if the underlying offense is a CIMT]; Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir.
2007) [guilty plea to misdemeanor 4th-degree criminal solicitation of the sale of drugs under N.Y. Penal Law
§100.05(1) is a law relating to a controlled substance under 8 USC §1182(a)(2)(A)(i)(II)]; Peters v. Ashcroft,
383 F.3d 302 (5th Cir. 2004) [felony solicitation to transport marijuana for sale, Ariz. Rev. Stat. §13-1002, is a
drug crime]. Solicitation is also considered an aggravated felony in other contexts. Prakash v. Holder, 579
F.3d 1033 (9th Cir. 2009) [solicitation to commit rape or assault by means of force in violation of Cal. Penal
Code §§654f(a), (c) are aggravated felonies]; Ng v. U.S. Att’y Gen., 436 F.3d 392 (3d Cir. 2006) [solicitation
to commit murder]. But see Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017) [delivery of a controlled
substance (heroin) under Or. Rev. Stat. §475.992(1)(a) is not categorically an aggravated felony because
delivery may be based on mere solicitation]; Rosas-Castaneda v. Holder, 630 F.3d 881 (9th Cir. 2011)
overruled on other grounds, Young v. Holder, 697 F.3d 976, 989-92 (9th Cir. 2012) (en banc) [followed
Sandoval-Lua post REAL ID Act and found that Ariz. Rev. Stat. §13-3405 contains solicitation offenses
because it includes the “offer” to transport marijuana for sale]; Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th
Cir. 2007) overruled on other grounds, Young v. Holder, 697 F.3d 976, 989-92 (9th Cir. 2012) (en banc) [Cal.
Health & Safety Code §11379(a) contains a solicitation element, e.g., “offer” to transport controlled
substance, and therefore is not an aggravated felony because it is broader than the generic drug trafficking
crime defined under the CSA]; Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) [Matter of Beltran not
followed]; U.S. v. Aguilar-Ortiz, 450 F.3d 1271 (11th Cir. 2006) [solicitation to deliver cocaine under Fla. Stat.
§777.04(2), when it involves a small quantity (and an amount less than the trafficking definition Fla. Stat.
§893.135(1)(b) of 28 grams or more), is, under the categorical approach, attempted possession without intent
to distribute and is therefore not a drug trafficking crime for purposes of sentence enhancement]. The Board
also treats solicitation of a crime of violence as an aggravated felony. Matter of Guerrero, 25 I&N Dec. 631
(BIA 2011) [solicitation under R.I. Gen. Laws §11-1-9 to commit assault with a dangerous weapon is, under
the modified categorical approach, a COV under §16(b)].
2. Misprision of a Felony—Misprision of a felony under 18 USC §4 has been considered a CIMT by some
courts. Villegas-Sarabia v. Sessions, 874 F.3d 871, 877-81 (5th Cir. 2017) [misprision of a felony under 18
USC §4 is categorically a CIMT]; Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) [misprision of felony is a
CIMT where it arose in connection with a scheme to rent automobiles, report them stolen to local police, and
export them to Kuwait]. The BIA agrees. Matter of Robles, 24 I&N Dec. 22, 25–27 (BIA 2006)[overruling
Matter of Sloan; misprision of a felony in violation of 18 USC §4 is a CIMT]. But see Robles-Urrea v. Holder,
678 F.3d 702, 707-12 (9th Cir. 2012) reversing Matter of Robles [misprision is not categorically a CIMT
because it does not require a specific intent to conceal, but only knowledge of the felony]. See also, Lugo v.
Holder, 783 F.3d 119 (2d Cir. 2015) [in light of the BIA’s inconsistent decisions and the split in circuits,
remanding the case back to the BIA for a precedent decision]. Other courts have suggested that the
factfinder should separate a conviction for misprision (concealing) a felony from the underlying offense the
defendant concealed. Thus, a conviction for misprision of drug possession is not a deportable offense under
the controlled substance ground. Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977); Matter of Velasco,
16 I&N Dec. 281 (BIA 1977) [following Sixth Circuit in Castaneda de Esper]; Matter of Batista-Hernandez, 21
I&N Dec. 955 (BIA 1997) [discussing that the nature of a misprision conviction does not incur deportability for
the underlying crime concealed]. Misprision may also not be considered an aggravated felony, but it may
depend upon the nature of the aggravated felony. Compare Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999)
[misprision is not an aggravated felony under §101(a)(43)(S) relating to obstruction of justice] with Patel v.
Mukasey, 526 F.3d 800 (5th Cir. 2008) Page 366 [misprision of a felony is a fraud or deceit aggravated felony
under §101(a)(43)(M) where the loss exceeds $10,000].
3. Accessory After the Fact—However, accessory after the fact has been found not to be a CIMT. Navarro-
Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other grounds, U.S. v. Aguila-
Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) [relying on the categorical and modified categorical
approach and holding that nothing in Cal. Penal Code §32 inherently makes accessory after the fact a CIMT].
Accessory after the fact to a drug offense is also not considered a drug offense. See Matter of Batista-
Hernandez, 21 I&N Dec. 955 (BIA 1997). But it is considered an “obstruction of justice offense.” Id. Thus, if
accompanied by a one-year term of imprisonment, an accessory after the fact conviction could, in certain
circumstances, constitute an aggravated felony.
VII. RELIEF FROM CONVICTIONS

A. Judicial Recommendations Against Deportation (JRAD)
1. Generally—JRAD, under former INA §241(b), 8 USC §1251(b) was abolished by IMMACT90 §602(b). The
Service interpreted this provision to relate to cases prospectively and it does not apply to JRADs “granted
prior to date of enactment.” IMMACT90 Wire No. 5, McNary, Comm. (Nov. 28, 1990); 9 FAM 302.3-2(B)(3)(g)
(4); Phong Thanh Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. 2007) [where JRAD was effective against both
CIMTs and aggravated felonies, respondent’s conviction for rape of a 5-year-old under Mass. law, which at
the time was a CIMT but retroactively became an aggravated felony as well, could not be the basis for
removal]; Renteria-Gonzalez v. INS, 322 F.3d 804, 811 n.5 (5th Cir. 2002) [rejecting government argument
that JRAD issued before Nov. 29, 1990, was no longer effective]. However, JRADs granted on or after Nov.
29, 1990, or for a drug offense under former §241(a)(11) are not effective against deportation. 8 CFR
§1240.10(d). The ex post facto clause, in the view of several courts, does not apply to a person whose crime
occurred before the effective date of the repeal of JRADs, and a person who sought a JRAD after Nov. 29,
1990 was barred. U.S. v. Koziel, 954 F.2d 831 (2d Cir. 1992); U.S. v. Bodre, 948 F.2d 28 (1st Cir. 1992).
Moreover, at least one court found that a JRAD will not bar deportation for a ground created after the bar.
U.S. v. Yacoubian, 24 F.3d 1 (9th Cir. 1994) [rejecting retroactivity, separation of powers, ex post facto, and
double jeopardy challenges]. JRAD to be effective had to be entered “at the time of first imposing judgment or
passing sentence or within thirty days thereafter.” 8 USC §1251(b)(2) (repealed 1990). But the 30 days may
not be jurisdictional because not penalty is specified for failure to comply. Solis-Chavez v. Holder, 662 F.3d
462, 466-69 (7th Cir. 2011) [under Dolan v. U.S., 560 U.S. 605, 609–11 (2010), the court distinguished
between statutes which specify a consequence for noncompliance and those that do not and found that the
30-day period for entry of a JRAD could be waived].
2. Effect of prior granted recommendation in other proceedings
Bars use of conviction as basis for deportation. Santarelli v. Hughes, 116 F.2d 613 (3d Cir. 1940).
Bars use of conviction to show lack of good moral character in AOS proceedings. Giambanco v. INS,
531 F.2d 141 (3d Cir. 1976).
Bars use of the conviction by DOS and DHS as a basis for future exclusion. U.S. v. Castro, 26 F.3d
557, 558 n.2 (5th Cir. 1994); Rasmussen v. Robinson, 163 F.2d 732 (3d Cir. 1947); Matter of K-, 9 I&N
Dec. 121 (BIA 1960); Matter of C-, 6 I&N Dec. 709 (BIA 1955).
But see Hassan v. INS, 66 F.3d 266, 269 (10th Cir. 1995) [conviction may be considered when evaluating
discretionary relief, notwithstanding JRAD]; U.S. v. Yacoubian, supra [allowing newly created deportation
ground, notwithstanding JRAD]; Oviawe v. INS, 853 F.2d 1428 (7th Cir. 1988) [can use CIMT as adverse
factor in determining motion to reopen for AOS; JRAD does not bar deportation on another ground (e.g.,
overstay)]; Delgado-Chavez v. INS, 765 F.2d 868 (9th Cir. 1985) [JRAD does not preclude use of conviction
at voluntary departure hearing]; Matter of Parodi, 17 I&N Dec. 608 (BIA 1980) [JRAD does not preclude use
of conviction to deport for separate conviction, even if that conviction was based on same underlying facts as
conviction where JRAD was obtained]; Matter of Gonzalez, 16 I&N Dec. 134 (BIA 1977) [BIA does not follow
Giambanco in other circuits and takes position that crime can at least be considered an adverse factor];
Matter of Y-M-, 8 I&N Dec. 94 (BIA 1958) Page 367 [overruling Matter of C- in part by finding that a person
who received a JRAD before 1952 for a narcotics violation could be deported in light of 1952 changes].
3. Ineffective assistance—Where counsel failed to advise client of JRAD, sentence set aside for ineffective
assistance of counsel. U.S. v. Castro, 26 F.3d 557 (5th Cir. 1994) [failure to advise person of availability of
JRAD]; Lyons v. Pearce, 298 Or. 554 (1985); Janvier v. U.S., 793 F.2d 449 (2d Cir. 1986). But see State v.
Santos, 401 N.W.2d 856 (Wis. App. 1987). Or where counsel in immigration proceeding wrongly considered
invalidity of JRAD because JRAD not entered within 30 days of sentencing court found ineffective assistance
under Lozada. Solis-Chavez v. Holder, 662 F.3d 462, 466-69 (7th Cir. 2011)
4. Judgment set aside to obtain JRAD—Where respondent’s sentence was set aside solely to allow him to
obtain a JRAD, JRAD was ineffective for deportation purposes. Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993).
B. Expungement of Conviction
1. In General—State court expungements under rehabilitative statutes no longer ameliorate the immigration
consequences of a conviction. Matter of Marroquin, 23 I&N Dec. 705 (AG 2005) [vacating/setting aside or
expunging a judgment under a rehabilitative statute such as Cal. Penal Code §1203.4(a), is deemed a
conviction under INA §101(a)(48) as a result of IIRIRA §322(a)]; Matter of Luviano, 23 I&N Dec. 718 (AG
2005) [firearms conviction expunged under Cal. Penal Code §1203.4 remains a conviction]; Matter of
Calcano De Millan, 26 I&N Dec. 904, 905-10 (BIA 2017) [USC barred from petitioning under the Adam Walsh
Act where petitioner’s rehabilitative pardon under Cal. Penal Code §1203.4 remained a conviction under
101(a)(48)(A)]; Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), vacated sub nom. Lujan-Armendariz v. INS,
222 F.3d 728 (9th Cir. 2000). But Lujan-Armendariz was overturned prospectively by the court sitting en
banc. Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. July 14, 2011) (en banc) [equal protection does not
require an expunged state court conviction be treated the same as the FFOA]; Villavicencio-Rojas v. Lynch,
811 F.3d 1216, 1218-19 (9th Cir. 2016) [respondent who pleaded to two counts of drug possession before
July 14, 2011 could obtain FFOA treatment because it was one offense]. In Reyes v. Lynch, 834 F.3d 1104
(9th Cir. 2016) the court clarified that an expunged drug conviction under a California rehabilitative statute
where a penalty was imposed is a conviction for immigration purposes including barring cancellation and
adjustment regardless of the rehabilitative purpose or probation. Accord Salazar-Regino v. Gonzales, 415
F.3d 436, 448 (5th Cir. 2005) [according Chevron deference to Roldan; person with deferred adjudication
under Texas law is convicted]; Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1067 (9th Cir. 2003) [expunged
lewdness charge still an aggravated felony]; Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. 2002) [finding
that expungement under Cal. Penal Code §1203.4 did not vacate a concealed weapons charge]; Murillo-
Espinoza v. INS, 261 F.3d 771, 772 (9th Cir. 2001). In reaching its conclusion in Roldan, the BIAreversed 40
years of immigration history based upon the majority’s reading of the new definition of conviction under INA
§101(a)(48). Prior to Marroquin and Roldan a state court expungement of a CIMT meant that the conviction
could not be used for immigration purposes. Kolios v. INS, 532 F.2d 786 (1st Cir. 1976); Matter of Ozkok, 19
I&N Dec. 546 (BIA 1988); Matter of G-, 9 I&N Dec. 159 (AG 1961) [Cal. statute of expungement returns
defendant to status as if he had not been convicted]; 9 FAM 302.4-2(B)(3)(b)(3)-(4), 302.3-2(B)(3)(d)-(e).
Under Roldan and Marroquin, however, these and other similar decisions are no longer controlling. The
Board’s decision in Roldan, however, has no effect on a decision to reduce a sentence under Fed. R. Crim. P.
35. Matter of Martin, 18 I&N Dec. 226 (BIA 1982). The BIA has also held that even state equivalents of FFOA
convictions are still convictions for immigration purposes. Matter of Salazar, 23 I&N Dec. 223 (BIA 2002). See
in this section ¶ 3 (p.368), infra.
Prior to Roldan, at least one court took the view that if INS has facts proving the offense, an expungement
could not bar deportation. Sanchez-Marquez v. INS, 725 F.2d 61 (7th Cir. 1984) [will not overturn deportation
order where expungement obtained after deportation order on appeal and the facts of the transportation of
illegal aliens were in record]. Similarly, one court determined that an expungement was not available for gun
charges because only certain classes of crimes could be expunged. Carr v. INS, 86 F.3d 949 (9th Cir. 1996)
[rejecting constitutional equal protection challenge].
In light of Marroquin, Luviano,and Roldan, the requirement that an IJ defer proceeding for time to obtain an
expungement may no longer be appropriate. Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988); Page 368 Matter
of Tinajero, 17 I&N Dec. 424 (BIA 1980); Matter of Luviano, 21 I&N Dec. 235 (BIA 1996) [approving IJ’s
decision not to continue proceeding for expungement where it was uncertain whether expungement could
affect outcome]. Accord Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004) [upholding removal despite
the fact that a conviction of first-time simple drug possession might be expunged sometime in the future in a
manner similar to the FFOA].
1.a. Expungement did not wipe out a narcotics conviction for immigration purposes even prior to Marroquin,
Luviano, and Roldan, See Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988); Matter of Moeller, 16 I&N Dec.
65 (BIA 1976); Matter of A-F-, 8 I&N Dec. 429 (AG 1959) [expungement of narcotic conviction under Cal.
law does not wipe out conviction for deportation purposes], unless the person received FFOA treatment or
“would have been eligible … under the provisions of the FFOA had he been prosecuted under federal
law.” Matter of Manrique, 21 I&N Dec. 58 (BIA 1995). However, under Roldan and Matter of Salazar, 23
I&N Dec. 223 (BIA 2002), the BIA reversed Matter of Manriquefor cases outside the Ninth Circuit, and
found that the definition of conviction under §101(a)(48)(A) bars state equivalents of the FFOA. Most
circuits courts now agree; see “Federal First Offender Act,” ¶ 3, infra.
2. Foreign Expungements Not Given Effect—Danso v. Gonzales, 489 F.3d 709 (5th Cir. 2007) [no equal
protection violation in BIA’s refusal to equate a “spent” drug conviction under UK with the FFOA and
questioning whether the FFOA survived the definition of conviction under 8 USC §1101(a)(48)(A)]; Elkins v.
Comfort, 392 F.3d 1159 (10th Cir. 2004) [equal protection not violated by refusal to extend FFOA treatment to
foreign expunged conviction]; Zgodda v. Holland, 184 F.Supp. 847 (E.D. Pa. 1960); Matter of Dillingham, 21
I&N Dec. 1001 (BIA 1997) [expungement not effective even where it would be equivalent to FFOA]; Matter of
Adamo, 10 I&N Dec. 593 (BIA 1964). Although Dillingham was reversed by a panel of the Ninth Circuit,
Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) [BIA’s refusal to recognize expungement for first time
offenders under Great Britain’s Rehabilitation of Offenders Act of 1974 violated equal protection], the en banc
court reversed Dillingham prospectively for convictions after July 14, 2011. Nunez-Reyes v. Holder, 646 F.3d
684 (9th Cir. 2011) (en banc) [an expunged state court conviction for simple possession is a conviction for
immigration purposes and equal protection does not require it be treated the same as the FFOA];
Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1218-19 (9th Cir. 2016) [respondent who pleaded to two counts
of drug possession before July 14, 2011 could obtain FFOA treatment because it was one offense].
3. Federal First Offender Act—In 1987 Congress, as part of the Comprehensive Crime Control Act,
established a new Federal First Offender provision, which combined the former Federal Youth Corrections
Act, 18 USC §5005 et seq. and the former First Offenders Act, 21 USC §844(b)(1). The FFOA sections are
found at 18 USC §3607(a) (dismissal) and 18 USC §3607(c) (expungement). Thus, a person who falls within
§3607(a) is arguably not convicted for immigration purposes. The legislative history of 18 USC §3607
indicates congressional intent to retain the effect of the previous provisions, particularly 21 USC §844(b).
H.R. Rep. No. 1030, 98th Cong., S. Rep. 225, p.133, 1984 U.S.C.C.A.N. 3182, 3316.
In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), vacated sub nom. Lujan-Armendariz v. INS, 222 F.3d 728
(9th Cir. 2000), however, the BIA determined that treatment under state rehabilitative statutes or state “first
offender” equivalents would still be considered convictions for immigration purposes. A majority of the BIA
stated: “We find no room in the present statutory scheme for recognizing state rehabilitative actions in the
context of immigration proceedings, or otherwise applying a first offender exception to the definition of
‘conviction’ to an alien who has been subject of such an action.” Under Roldan and Matter of Salazar, 23 I&N
Dec. 223 (BIA 2002) the BIA has reversed Matter of Manrique for cases outside the Ninth Circuit and has
found that the definition of conviction under INA §1101(a)(48)(A) bars state equivalents of the FFOA. Persons
convicted under state equivalents will now be deemed to have a conviction for immigration purposes. Initially,
the Ninth Circuit took a different view in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), rev’g Matter of
Roldan. However, in Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011) (en banc) [an expunged state
court conviction for simple possession is a conviction for immigration purposes and equal protection does not
require it be treated the same as the FFOA],the Ninth Circuit held that “equal protection does not require
treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug
conviction that has been expunged under the Page 369 FFOA.” The en banc court determined that its ruling
would only be applied prospectively to persons who were convicted after July 14, 2011, the date of the
opinion. Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1218-19 (9th Cir. 2016) [respondent who pleaded to two
counts of drug possession before July 14, 2011 could obtain FFOA treatment because it was one offense].
See also De Jesus Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. 2007) [distinguishing Lujan-Armendariz
and Garberding, equal protection not violated; Salvadoran with expunged 1999 conviction for possession
under Cal. Penal Code §1203.4 was convicted for immigration purposes because the FFOA did not apply as
respondent had a previous 1996 diversion]; All other circuits have supported the BIA’s view.Wellington v.
Holder, 623 F.3d 115 (2d Cir. 2010) [according Chevron deference to BIA’s interpretation that there is no
exception for state convictions analogous to the FFOA]; Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009) [in
conviction for possession of drug paraphernalia under Cal. Health & Safety Code §11364, petitioner would
not have been eligible for FFOA because he violated his probation and FFOA does not extend to probation
violations]; Danso v. Gonzales, 489 F.3d 709 (5th Cir. 2007) [rejecting Dillingham, finding no equal protection
violation regarding a “spent” drug conviction under UK law in regard to the FFOA, and questioning whether
the FFOA survived the definition of conviction under INA §1101(a)(48)(A)]; Salazar-Regino v. Gonzales, 415
F.3d 436, 441, 448 (5th Cir. 2005) [Matter of Roldan should be accorded Chevron deference and person with
deferred adjudication under Texas law, who would have been considered a first offender under FFOA is
nevertheless convicted]; Ramos v. Gonzales, 414 F.3d 800, 806–07 (7th Cir. 2005) [following Gill, rejecting
equal protection challenge to a Nebraska conviction vacated for rehabilitative purposes]; Elkins v. Comfort,
392 F.3d 1159 (10th Cir. 2004) [equal protection not violated by refusal to extend FFOA treatment to foreign
expunged conviction]; Resendez-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262 (11th Cir. 2004) [expunged state
conviction for simple possession that is equivalent to FFOA remains a conviction under §101(a)(48)(A) and
Roldan;equal protection and due process challenge rejected]; Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th
Cir. 2004) [same]; Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. 2003) [rejecting equal protection challenge to
distinction between FFOA and state equivalents; upholding under Chevron deference standards, BIA’s
interpretation in Roldan and Salazar that a state equivalent to FFOA is still a conviction under INA §101(a)
(48)(A)]; Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003) [FFOA only applies to federal, not state convictions].
Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1311–17 (11th Cir. 2001) [expungement under Cal.
Penal Code §1203.4 deemed a conviction and no equal protection violation where Manrique standard not
met because person sentenced to longer probation than permitted under FFOA]; Mugalli v. Ashcroft, 258 F.3d
52, 61–62 (2d Cir. 2001) [certificate of relief under NY law does not alter a conviction for immigration
purposes; Rehman is no longer valid].
In Matter of Devison, 22 I&N Dec. 1362 at 1372 (BIA 2000), the BIA stated that Roldan also applied to
convictions under the former Federal Youth Corrections Act and that proceedings under that Act would be
considered a conviction, thereby distinguishing them from proceedings under the Federal Juvenile
Delinquency Act, which are not considered convictions under IIRIRA’s new definition.
Under Roldan,and the Ninth Circuit’s en banc ruling in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011)
(en banc) cases such as Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994) [striking down Matter of Deris, 20
I&N Dec. 5 (BIA 1989) on equal protection grounds as irrational where charge was simple possession and
person could have received FFOA relief] and Paredes-Urrestarazu v. INS, 36 F.3d 801, 815–16 (9th Cir.
1994) [limiting Garberding to cases where person could have received FFOA treatment], may no longer be
good law.
Whether a person is covered under the terms of the FFOA is always at issue. Nunez-Reyes v. Holder, 646
F.3d 684, 691 (9th Cir. 2011) (en banc) [conviction for under the influence of methamphetamine is not a
lesser included offense of simple possession and therefore would not be covered under the FFOA]; Estrada
v. Holder, 560 F.3d 1039 (9th Cir. 2009) [distinguishing Cardenas-Uriarte in conviction for possession of drug
paraphernalia under Cal. Health & Safety Code §11364, petitioner would not have been eligible for FFOA
because he violated probation and FFOA does not extend to probation violations]; Aguiluz-Arellano v.
Gonzales, 446 F.3d 980 (9th Cir. 2006) [FFOA is applicable but respondent did not qualify because he had a
prior drug conviction].
Whether an alien has a right to participate in a first offender program is open to question. A prosecutor’s
refusal to permit an alien to participate in a first offender treatment program was upheld in the face of an
equal protection challenge. Chavez v. U.S., 499 A.2d 813 (D.C. App. 1985). Page 370
C. Pardons—A “full and unconditional” pardon by the President, governor, or constitutionally recognized executive
body, will prevent deportation for CIMTs, multiple criminal convictions, aggravated felonies,and high-speed flight
from DHS checkpoint. INA §237(a)(2)(A)(vi), 8 USC §1227(a)(2)(A)(vi). See also Estrada-Rosales v. INS, 645
F.2d 819 (9th Cir. 1981); Matter of Nolan, 19 I&N Dec. 539 (BIA 1988) [automatic pardon upon completion of
sentence was a conditional pardon by legislature, not executive, and therefore insufficient]; Matter of B-, 3 I&N
Dec. 551 (BIA 1949); Matter of Tajer, 15 I&N Dec. 125 (BIA 1974); Matter of G-, 3 I&N Dec. 808 (BIA 1949);
Nguyen v. USCIS, 847 F.3d 750 (5th Cir. 2017) [Louisiana’s automatic first-offender pardon, La. Rev. Stat. Ann.
§15.572(B)(1) is not a full and unconditional pardon]. A pardon is only available to prevent removal on those
grounds specifically named in INA §237(a)(2)(A)(vi). Matter of Suh, 23 I&N Dec. 626 (BIA 2003). Thus a pardon
is not available for someone convicted of a drug charge whose removal is sought under INA §237(a)(2)(B), or for
someone under the domestic violence provision for something that might otherwise be considered an
aggravated felony. Matter of Suh, supra [conviction for child abuse pardoned aggravated felony ground of
removal but cannot pardon domestic violence ground of removal because that section is not covered under
former INA §237(a)(2)(A)(v)]; Eskite v. District Director, 901 F.Supp. 530, 536–37 (E.D.N.Y. 1995) [drug offense
cannot be pardoned even if aggravated felony can]; Mullen-Cofee v. INS, 976 F.2d 1375, 1379 n.10 (11th Cir.
1992), amended on denial of reh’g, 986 F.2d 1364 (11th Cir. 1993) [same]. An application for a pardon is not
sufficient to stay deportation proceedings. U.S. v. Butterfield, 223 F.2d 804 (6th Cir. 1955) or even to obtain a
continuance. Antia-Perea v. Holder, 768 F.3d 647, 659-60 (7th Cir. 2014) [denied continuance to seek pardon did
not violate due process because there is no protected liberty or property interest]. But see Ozkok [suggesting
continuance proper for expungement]. See also Effects of a Presidential Pardon, Memo, Dellinger, Ass’t Att’y
Gen, DOJ OLC (June 19, 1995), at http://www.justice.gov/olc/file/626891/download (at p.160) [a full and
unconditional presidential pardon precludes the exercise of the authority to deport under criminal deportation
grounds] Absence of a pardon provision does not affect whether an offense is a crime. Matter of Nolan, supra
[even if there is no provision for a pardon, the validity of the conviction is a separate issue]. The pardon in the
view of one circuit is not “full and unconditional” where it does not fully restore all rights to a person. Castillo v.
U.S. Att’y Gen., 756 F.3d 1268 (11th Cir. 2014) [despite language in the Georgia pardon that “hereby
unconditionally fully pardons” the respondent, Judge Marcus, writing for the Court, ruled that because the
pardon did not restore the respondent’s right to “receive, possess, or transport in commerce a firearm” it was not
a “full” pardon and the conviction could be used to remove the respondent].
Foreign pardons unavailable to alleviate conviction. Le v. Lynch, 819 F.3d 98, 111 (5th Cir. 2016) [Canadian
pardon “has no bearing on [respondent’s] conviction for immigration purposes … foreign pardons are generally
not recognized under United States immigration laws”]; Mullen-Cofee v. INS, 976 F.2d 1375, 1379 (11th Cir.
1992), amended on denial of reh’g, 986 F.2d 1364 (11th Cir. 1993) [Canadian pardon]; Marino v. INS, 537 F.2d
686, 691 (2d Cir. 1976); Matter of F-Y-G-, 4 I&N Dec. 717 (BIA 1952); 22 CFR §40.21(a)(5).
In the view of some circuits, the pardon provision only applies to persons subject to deportation and does not
apply to persons deemed inadmissible. Aguilera-Montero v. Mukasey, 548 F.3d 1248 (9th Cir. 2008) [rejecting
statutory and equal protection challenge to the refusal to apply a state pardon of a controlled substance to
grounds of inadmissibility]; Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1362–63 (11th Cir. 2005) [person
pardoned by Ala. legislature is still subject to removal as an inadmissible person because pardon only applies to
deportation]. But see Matter of H-, 6 I&N Dec. 90 (BIA 1954) [“As long as there is a full and unconditional pardon
granted by the President or by a Governor of a State covering the crime which forms the ground of deportability,
whether in exclusion or expulsion, the immunizing feature of the pardon clause applies, and such a crime no
longer forms a basis for deportability”]; 22 CFR §§40.21, 40.22; 9 FAM 302.3-2(B)(3)(h), 302.4-2(B)(3), 302.3-
3(B)(2). In filing evidence of a pardon, the movant must comply with 8 CFR §287.6 or provide a compelling
reason for the failure to do so. Ali v. U.S. Att’y Gen., 443 F.3d 804, 812–13 (11th Cir. 2006) [no abuse of
discretion in rejecting a photocopy of pardon that did not comply with the regulation, where respondent offered
no compelling reason for failure to obtain a certified copy].
D. Writ of Error Coram Nobis—State/federal and 28 USC §1651(a). The writ of coram nobis is “an extraordinary
tool to correct a legal or factual error.” U.S. v. Denedo, 556 U.S. 904, 914 (2009) [allowing writ in the context of
military courts to challenge ineffective assistance of counsel for misadvice regarding immigration consequences
of plea]. Pursuant to U.S. v. Morgan, 346 U.S. 502, 507 (1954) the writ Page 371 today can be used to redress
“fundamental error” such as deprivation of counsel in violation of the Sixth Amendment. Denedo, 556 U.S. at
912. To obtain a writ of coram nobis under federal law, a petitioner must demonstrate that: “(1) there are
circumstances compelling such action to achieve justice; (2) sound reasons exist for failure to seek appropriate
earlier relief, and (3) the petitioner continues to suffer legal consequences from his conviction that may be
remedied by granting the writ.” Tocci v. U.S., 178 F.Supp.2d 176 (N.D.N.Y. 2001) [finding 28 USC §§2241 &
2255 unavailable but that the writ of coram nobis should issue because of errors in accepting a guilty plea for
alien smuggling]; Urbina v. U.S., 992 F.Supp. 641 (S.D.N.Y. 1998); U.S. v. Castro, 26 F.3d 557, 559 (5th Cir.
1994) [must “demonstrate … suffering civil disabilities as a consequence of the criminal conviction”]; Hanan v.
U.S., 402 F.Supp.2d 679, 687 (E.D. Va. 2005) [denying coram nobis where petitioner sought relief on basis he
would suffer hardship if returned to Afghanistan where he was ineligible for cancellation as an aggravated felon].
Must have error of fact at time of original judgment and no knowledge of the fact in time to move for new trial.
U.S. v. Morgan, 346 U.S. 502 (1954). If granted, vacates conviction ab initio. Matter of C-, 8 I&N Dec. 611 (BIA
1960); Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970). Some states place limitations on coram nobis. State v.
Green, 944 So.2d 208 (Fla. 2006) [a motion under Fla. R. Crim. P. 3.850, rather than a writ of coram nobis, is the
proper vehicle to withdraw plea, and petitioner only has a 2-year period to do so unless he could not have
ascertained by due diligence that the plea would subject him to removal]. In the view of one court a coram nobis
proceeding may not be brought in federal court to attack a state criminal judgment. Chavez v. Superior Court of
Cal., 194 F.Supp.2d 1037, 1039 (C.D. Cal. 2002). Coram nobis under federal law is an appropriate vehicle to
raise a Padilla claim that counsel was ineffective for failure to provide advice about the immigration
consequences of his conviction. U.S. v. Orocio, 645 F.3d 630 (3d Cir. 2011) [remanding petition raising Padilla
for evidentiary hearing]. The decision on the writ is reviewed under an abuse of discretion standard. U.S. v.
Akinsade, 686 F.3d 248 (4th Cir. 2012) [district court abused its discretion when it failed to grant writ where
defendant given positive misadvice by counsel which was not cured by the district judge stating that defendant’s
plea “could lead” to deportation].
E. Writ of Audita Querela—Defined as a “writ available to a judgment debtor who seeks a rehearing of a matter
on grounds of newly discovered evidence or newly existing legal defenses,” Black’s Law Dictionary (10th ed.
2014). It has been applied where subsequent events would render the continual existence of the judgment and
its consequences unjust. However, it has not been well received by courts when seeking to overturn a conviction
for immigration purposes. U.S. v. Reyes, 945 F.2d 862 (5th Cir. 1991) [audita querela not available to vacate a
criminal conviction on purely equitable grounds]; U.S. v. Holder, 936 F.2d 1 (1st Cir. 1991) [writ cannot provide a
purely equitable basis for relief independent of any legal defect in the conviction]. The writ of audita querela will
not necessarily eliminate a conviction for immigration purposes even if it is granted. Beltran-Leon v. INS, 134
F.3d 1379 (9th Cir. 1998) [no jurisdiction to review BIA refusal to recognize a writ of audita querela as vacating a
conviction]; Doe v. INS, 120 F.3d 200 (9th Cir. 1997) [California’s audita querela does not vacate a conviction for
immigration purposes]; U.S. v. Johnson, 962 F.2d 579 (7th Cir. 1992) [writ available only to discharge legal
defect in conviction or sentence, not because of equities or gross injustice].
F. All Writs Act—The All Writs Act, 28 USC §1651(a), has been used to vacate a criminal conviction in an
immigration context where justice and equity would be served. U.S. v. Javanmard, 767 F.Supp. 1109, 111–12 (D.
Kan. 1991) [vacating conviction to permit amnesty]. But see Renteria-Gonzalez v. INS, 322 F.3d 804, 811–12
(5th Cir. 2002) [All Writs Act does not confer an independent basis for subject-matter jurisdiction to vacate a
conviction and the court lacks equitable authority to do so]; U.S. v. Bravo-Diaz, 312 F.3d 995, 997–98 (9th Cir.
2002) [courts do not have jurisdiction to vacate convictions on equitable grounds for immigration purposes]; Tran
v. U.S., 45 F.Supp.2d 157 (D.P.R. 1999).
G. Habeas Corpus to Vacate or Set Aside Conviction; State Counterparts [28 USC §§2254, 2255]—AEDPA
§§101–06 substantially reduced the ability to use 28 USC §§2254 and 2255 to attack state and federal
convictions. There is now a one-year statute of limitations for filing a habeas petition in federal court attacking a
state conviction, §2244(d)(1), or federal conviction, §2255. It also strengthened the presumption of correctness
of the convictions and restricted successive petitions. However, petitions have been granted to vacate a
conviction where the court would not have accepted the plea had it been aware of the immigration
consequences. Urbina v. U.S., 992 F.Supp. 641 (S.D.N.Y. 1998). Jurisdiction exists for habeas even where alien
is released from incarceration. U.S. v. Romero-Vilca, 850 F.2d 177 (3d Cir. 1988). At least one court has found
that DHS detention does not amount “custody” for purposes of §2255. Evola v. Carbone, 365 F.Supp.2d 592,
597–98 (D.N.J. 2005) [being in the custody of ICE does not mean “in Page 372 custody” for purposes of §2255,
thus avoiding the limitation on successive petitions]. Certain states permit a vacatur of a plea only if filed within a
limited time period. For example, Florida permits a party to vacate a plea only if it is filed within 2 years of the
conviction. State v. Green, 944 So.2d 208 (Fla. 2006) [Fla. R. Crim. P. 3.850, rather than a writ of coram nobis, is
the proper vehicle to withdraw plea, and petitioner has 2 years to do so unless he could not have ascertained by
due diligence that the plea would subject him to removal]. Where a defendant is time-barred under state post-
conviction procedures, he or she may be able to bring a Padilla claim under federal habeas. See Martinez v.
Ryan, 566 U.S. 1 (2012) [finding that ineffective assistance of counsel may be raised under certain
circumstances in light of state procedural bars and notwithstanding Coleman v. Thomas, 501 U.S. 722
(1991)].The defendant must allege and prove that she would not have entered into the plea if informed of the
possibility of removal. Green, supra. Vacation of a plea will vacate the conviction for immigration purposes as
long as it was not pursuant to a rehabilitative statute or because of immigration hardship. See in this chapter
“Vacated Conviction May Not Be a Conviction,” ¶ VI.A.11 (p.352), supra. Unlike a vacatur of a conviction, a
vacatur of a sentence may be done for any purpose, including immigration avoidance. See ¶ VI.A.12 (p.355),
supra.
H. Motion to Withdraw Plea—Rule 11 [requires inquiry by a court before taking plea that plea voluntarily and
knowingly given]; Fed. R. Crim. P. 11(d) [permits withdrawal of plea in interest of justice or if there is a “fair and
just reason for requesting the … withdrawal.” A person may withdraw a plea or attack a plea due to ineffective
assistance of counsel in regard to immigration advice. Padilla v. Kentucky, 559 U.S. 356 (2010) [counsel must
inform her client whether his plea carries a risk of deportation]; U.S. v. Bonilla, 637 F.3d 980 (9th Cir. 2011)
[defense counsel’s inadequate legal advice on immigration consequences of plea was fair and just reason for
withdrawal of pleas under Rule 11]. Post-Padilla the Supreme Court amended Rule 11 to include a colloquy
regarding immigration consequences of a plea. Fed. R. Crim. P. 11(b)(1)(O) [“if convicted, a defendant who is
not a United States citizen may be removed from the United States, denied citizenship, and denied admission to
the United States in the future.”]. See in this chapter “Guilty Pleas,” Section VI.C (p. 358), supra.
A withdrawal of plea under Rule 32(d) vacates conviction (including drug conviction) ab initio for immigration
purposes. Matter of Gonzalez-Escalante, No. A35-294-644 (BIA Mar. 12, 1982) [in drug case vacation under
32(d) has same effect as coram nobis].
I. Motion to Correct or Reduce Sentence—Authority to correct or reduce a sentence under Fed. R. Crim. P. 35 is
limited. District court may modify a sentence after a federal appeals court remands a case pursuant to 18 USC
§3742, because the original sentence was illegal or imposed in violation of the guidelines. Alternatively, a district
court may correct a sentence within 7 days of sentencing, where the erroneous sentence was the result of
technical, arithmetical, or other clear error. The government may file a Rule 35(b) motion where the defendant
has provided “substantial” post-conviction assistance in the investigation or prosecution of another person. As
the government is the only party who can move for a Rule 35(b) motion, a defendant can appeal on the basis
that the government’s refusal was in bad faith. U.S. v. Treleaven, 35 F.3d 458 (9th Cir. 1994). The correction of
an illegal sentence is valid for immigration purposes. Matter of Song, 23 I&N Dec. 173 (BIA 2001) [where 365-
day sentence vacated nunc pro tunc to 360 days, aggravated felony consequences avoided]; Matter of Martin,
18 I&N Dec. 226 (BIA 1982). [where sentence of confinement reduced to sentence of probation, it was valid to
take person out of CIMT section]. A party may vacate a sentence for any reason, including immigration
avoidance, and it must be given full faith and credit by the IJs and BIA. Matter of Cota, 23 I&N Dec. 849 (BIA
2005) [where sentence was modified nunc pro tunc expressly to avoid deportation as an aggravated felon, IJ
and BIA must recognize it. Matter of Pickering distinguished].
J. Other Forms of Relief
Asylum. INA §208.

Withholding of deportation for fear of persecution. INA §241(b)(3).
Deferred action status.
Adjustment of status. INA §245.
Asylum and cancellation of removal are not available to aggravated felons. Withholding is also unavailable
if person incarcerated for 5 years or more. AOS is not available to aggravated felon LPRs if they will need
a waiver under INA §212(h) for a criminal ground of inadmissibility. Page 373
VIII. CRIMINAL MATTERS RELATED TO REMOVAL

A. Requirements Concerning Probation
1. Sentence to Probation is Not Considered a Sentence to Imprisonment—A sentence to probation has

generally not been considered a sentence to imprisonment. U.S. v. Mondragon-Santiago, 564 F.3d 357, 367–
69 (5th Cir. 2009) [deferred adjudication probation under Texas law is not a sentence to imprisonment, no
aggravated felony]; U.S. v. Gonzalez-Coronado, 419 F.3d 1090, 1093–94 (10th Cir. 2005) [following Martinez-
Villalva and holding that multiple-year sentence to probation is not an aggravated felony under §101(a)(43)
(F)]; U.S. v. Martinez-Villalva, 232 F.3d 1329, 1332–34 (10th Cir. 2000) [where government could not prove
that sentence was other than probation, no aggravated felony]; U.S. v. Guzman-Bera, 216 F.3d 1019 (11th
Cir. 2000) [where person sentenced to probation violated the probation resulting in an 18-month
incarceration, he was not sentenced to imprisonment, no aggravated felony]; U.S. v. Banda-Zamora, 178
F.3d 728, 730 (5th Cir. 1999) [sentence to probation does not meet the definition of aggravated felony];
Matter of Martin, 18 I&N Dec. 226, 227 (BIA 1982); Matter of V-, 7 I&N Dec. 577 (1957);Matter of Eden, 20
I&N Dec. 209 (BIA 1990). But see Hernandez v. Holder, 760 F.3d 855 (8th Cir. 2014) [suggested that a
sentence to probation is a sentence to imprisonment under INA §101(a)(48)(B) but the context of the case is
a sentence to three years’ probation with the condition that the defendant spend the first 365 days in county
jail]. While a sentence to probation is not per se a sentence to imprisonment or confinement, a condition of
probation that imposes a term of confinement in a substance abuse facility is a term of imprisonment under
INA §101(a)(48)(B). Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015) [respondent was ineligible for
cancellation because his aggravated felony 5-year sentence under Texas law required him to serve an
indefinite term of confinement (understood as a maximum one year) in a substance abuse felony punishment
facility].
However, the BIA and some circuits have held that the modification of a person’s sentence following a
probation violation is considered part of the penalty imposed against him for the original crime. Matter of
Perez Ramirez, 25 I&N Dec. 203 (BIA 2010) [where sentence was modified after probation violation to serve
365 days in county jail, respondent was sentenced to aggravated felony]; Dixon v. U.S. Att’y Gen., 768 F.3d
1339, 1341-42 (11th Cir. 2014) [probation revocation and resentencing is for original crime under Florida
state law and will be considered incarceration for aggravated felony]; Vaca-Tellez v. Mukasey, 540 F.3d 665,
668–72 (7th Cir. 2008) [person who violated probation sentence and was incarcerated for 3 years for burglary
of an automobile met the one-year requirement for an attempted theft offense]; U.S. v. Carrillo-Lopez, 313
F.3d 1185, 1186 (9th Cir. 2002)Osses v. McElroy, 287 F.Supp.2d 199, 205–06 (W.D.N.Y. 2003) [where
probation is revoked and respondent was re-sentenced to time in prison, it is considered a sentence for
purposes of an aggravated felony]; Da Rosa Silva v. INS, 263 F.Supp.2d 1005, 1010 (E.D. Pa. 2003)
[conditional probation as original sentence which was then revoked and 4-year sentence imposed]. At least
one court has held that a person who has had a sentence imposed that is then, in part, probated is still
considered sentenced to the full time. U.S. v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001) [sentence that
was probated is considered suspended for purposes of statute]. But see U.S. v. Guzman-Bera, 216 F.3d
1019 (11th Cir. 2000) [where person sentenced to probation violates the probation resulting in an 18-month
incarceration, he was not sentenced to imprisonment, no aggravated felony].
A judge may clarify whether it is a sentence to probation. Matter of H. Estrada, 26 I&N Dec. 749, 754-56 (BIA
2016) [state judge’s subsequent order correcting sentence as a sentence to probation instead of a condition
of probation that imposes a term of confinement was upheld].
2. Serving Probation Outside U.S.—Requirement that person must serve probation outside of U.S. is invalid,
U.S. v. Mercedes-Mercedes, 851 F.2d 529 (1st Cir. 1988); U.S. v. Abushaar, 761 F.2d 954 (3d Cir. 1985), or
that sentence be suspended if he departs. U.S. v. Jalilian, 896 F.2d 447 (10th Cir. 1990); Dear Wing Jung v.
U.S., 312 F.2d 73, 75–76 (9th Cir. 1962); U.S. v. Concepcion, 795 F.Supp. 1262, 1273–75 (E.D.N.Y. 1992).
Similarly a requirement that a person must forgo all defenses to removal is invalid. U.S. v. Maldonado-
Ramirez, 216 F.3d 940, 944–45 (11th Cir. 2000). However, a person may agree to leave the country as part
of a plea. U.S. v. Janko, 865 F.2d 1246 (11th Cir. 1989) [upholding negotiated special condition of probation
that person leave U.S. and not return other than by lawful means].
3. Deferral of Deportation—Probation, parole, or supervised release are not grounds for deferral of
deportation, INA §241(a)(4)(A), 8 USC §1231(a)(4)(A); Walford v. INS, 48 F.3d 477 (10th Cir. 1995), although
the AG is now authorized to deport nonviolent offenders prior to completion of their sentences. INA §241(a)
(4)(B). District courts should generally not grant supervised release to Page 374 noncitizens. United States
Sentencing Guidelines §5D1.1(c) & cmt. 5 (Nov. 1, 2014); U.S. v. Azcona-Polanco, 865 F.3d 148 (3d Cir.
2017) [court must explain and justify the imposition of supervised release on a deportable alien in light of
§5D1.1(c)] U.S. v. Solano-Rosales, 781 F.3d 345, 352-54 (6th Cir. 2015) [district court erred in providing for
supervised release without explanation and contrary to USSG §5D1.1(c) to a defendant likely to be
deported]; U.S. v. Ramirez, 38 F.Supp.3d 818 (S.D. Tex. 2014). See also U.S. v. Sandoval-Enrique, 870 F.3d
1207, 1214-15 (10th Cir. 2017) [judge’s decision not to grant supervised release is not an abuse of discretion
even if he result was to lengthen defendant’s incarceration]. The district court may order deportation as a
condition of probation if the parties stipulate to it under INA §238(c)(5), 8 USC §1228(c)(5) or if, after notice
and hearing, the AG establishes deportability by clear and convincing evidence. 18 USC §3563(b)(21). The
procedure set forth in INA §238(c)(5) requires the concurrence of the U.S. Attorney and the appropriate
immigration authority. U.S. v. Camacho, 738 F.Supp.2d 240, 242 (D. Mass. 2010) [dismissed defendant’s
argument where there was no concurrence by the AG with ICE and the procedure was not followed]. See in
this chapter “Deportation and Imprisonment, ¶ X.V.4 (p.697), infra.
4. Post-Deportation—Parole terms may continue even after person deported. Guerrero-Guerrero v. Clark, 687
F.Supp. 1022, 1027 (E.D. Va. 1988) [parole commission still had jurisdiction over special parole terms even
after parolee deported].
B. Victims of Immigration Crime Engagement (“VOICE”)—EO 13768, Enhancing Public Safety in the Interior of
the United States (Jan. 25, 2017), Sect. 13, 82 FR 8799-8803 (Jan. 30, 2017); Memo, Kelly, Sec. DHS,
Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017), ¶D, pp. 4-5, AILA Doc. No.
17021830. ICE has established a program and office to allow victims of crimes committed by “removable
criminal aliens” to obtain information about the custody status of the offender including when he or she is taken
into custody, released from ICE custody and removed from the U.S. ICE, VOICE Office, AILA Doc. No.
17050160. A toll-free hotline at 1-855-488-6423 is available where a person may register and obtain information.
The information will be provided through DHS-Victim Information Notification Exchange or DHS-VINE which is a
web-based system that sends the notification to registrants who have been affected. Victims will not be required
to disclose their immigration status and ICE will collect data on those arrested and removed. Eligible registrants
include victims of crimes, witnesses of crimes, individuals with a legal responsibility to act on behalf of a victim
(e.g., attorneys, parents, legal guardians), and individuals acting at the request of victims. Id at 3. To register the
victim must have the offender’s full name and country of birth or the offender’s Alien Registration Number and
country of birth.
C. Conviction for Reentry or Being Found in U.S. After Deportation [8 USC §1326]
1. Reentry
1.a. In General—Any person who has been denied admission, excluded, deported or removed or has
departed the U.S. while an order of exclusion, deportation or removal is outstanding and thereafter enters,
attempts to enter, or is found in the U.S. is subject to a 2-year penalty and $1,000 fine. 8 USC §1326(a). If
exclusion, deportation, or removal was subsequent to commission of 3 or more misdemeanors involving
drugs, crimes against the person, or both, or if it was subsequent to a non–aggravated felony, the
maximum penalty is 10 years. 8 USC §1326(b)(1). U.S. v. Abrica-Sanchez, 808 F.3d 330, 332-33 (8th Cir.
2015) [holding that any state or federal offense punishable by a maximum term of more than a year in
prison even if characterized under state law as a misdemeanor is a felony for purposes of (b)(1)]. If
exclusion, deportation or removal was subsequent to a conviction of an aggravated felony, the maximum
penalty is 20 years. 8 USC §1326(b)(2). If deported, excluded or removed as an alien terrorist, there is a
mandatory 10-year nonconcurrent penalty. 8 USC §1326(b)(3)-(4). The Supreme Court has determined
that under §1326(b)(2), the commission of an aggravated felony prior to the commission of the offense is
a sentencing enhancement. Since it does not create a separate crime, the government is not required to
charge, in the indictment, the fact of the earlier conviction for the aggravated felony. Almendarez-Torres v.
U.S., 523 U.S. 224 (1998). See also U.S. v. Palomino Garcia, 606 F.3d 1317, 1337 (11th Cir. 2010)
[Almendarez-Torres requires rejection of claim that sentence is barred by 5th and 6th Amend]; U.S. v.
Garcia-Hernandez, 563 F.3d 1100, 1103 (9th Cir. 2009) [prior conviction does not have to be charged in
the indictment]; U.S. v. Martinez, 434 F.3d 1318, 1323 (11th Cir. 2006) [Supreme Court decisions in
Apprendi, Blakely, Page 375 Booker,and Shepard, while casting doubt on Almendarez,have not overruled
it; uncharged prior convictions can be used to enhance defendant’s sentence]; U.S. v. Quintana-Quintana,
383 F.3d 1052, 53 (9th Cir. 2004) [Blakely did not alter Almendarez-Torres]; U.S. v. Perez-Olalde, 328 F.3d
222, 224 (6th Cir. 2003) [following Almendarez-Torres,enhancement need not be charged]; U.S. v.
Martinez-Villalva, 232 F.3d 1329, 1331–32 (10th Cir. 2000). [following Almendarez-Torres and rejecting
argument based on Apprendi v. New Jersey, 530 U.S. 466 (2000)that issue of sentence enhancement
must go to jury]; U.S. v. Rodriguez-Montelongo, 263 F.3d 429, 434–35 (5th Cir. 2001) [same in regard to
due process challenge based on Apprendi]; U.S. v. Gonzalez-Ruiz, 369 F.Supp.2d 1151, 1153–54 (N.D.
Cal. 2005) [Supreme Court decision in Shepard v. U.S. does not alter Almendarez-Torres]. If the
government charges reentry after commission of an aggravated felony, the defendant cannot generally
challenge the indictment prior to conviction and sentencing on grounds his previous conviction was not an
aggravated felony. U.S. v. Romero-Ochoa, 554 F.3d 833 (9th Cir. 2009) [defendant could not challenge as
a collateral order under Cohen or by mandamus prior to sentencing the claim he committed an
aggravated felony before reentry].
However, where the sentencing court bases enhancement on something other than a prior conviction,
such as a subsequent removal, it may violate Apprendi. U.S. v. Covian-Sandoval, 462 F.3d 1090, 1096–
98 (9th Cir. 2006) [where sentencing court relied on a removal order subsequent to a conviction that was
not pleaded or proved, it violated Apprendi because Almendarez-Torres allows the court to consider only
a prior conviction, which has procedural safeguards, in determining sentence enhancement. The court
however found that the error did not violate defendant’s substantial rights]. Also, where the government
alleges the conviction is a separate offense the conviction may be reversed unless the defendant was
indicted, convicted and sentenced for one crime. U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000). A
felony for purposes of §§1326(b)(1) & (2) is defined by federal law under 18 USC §3559(a) and not by
state law even if it was a state conviction. U.S. v. Figueroa-Alvarez, 795 F.3d 892 (8th Cir. 2015) [although
third degree attempted burglary under Iowa Code §§713.6B, 903.1(2) is considered an aggravated
misdemeanor, it will be treated as a felony for federal purposes because the maximum punishment is
more than one year]; U.S. v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. 2006) [although Colorado 3rd
degree assault is a misdemeanor, it is defined as a felony under federal law and therefore enhancement
of sentence was appropriate].
1.b. Elements of the Crime of Reentry—The 4 elements of a reentry crime generally are: (1) alienage; (2) a
deportation/exclusion/removal order; (3) physical departure after deportation/removal; and (4) voluntary
reentry free from official restraint and without requisite authority to do so. U.S. v. Lopez, 762 F.3d 852 (9th
Cir. 2014) [where defendant has been removed government did not have to separately prove the
existence of an order of deportation as an element of the crime; verification that noncitizen was physically
removed was nontestimonial and thus, not subject to Crawford]. In addition, the government must prove:
“(1) the specific intent to reenter without consent; and (2) an overt act that was a substantial step towards
this illegal reentry.” U.S. v. Rosales-Aguilar, 818 F.3d 965, 971 (9th Cir. 2016) [quoting U.S. v. Leos-
Maldonado, 302 F.3d 1061, 1063 (9th Cir. 2002) and finding that where person had been previously
provided notice that he had to seek permission to reenter and he crossed the border and waited in line for
about an hour and a half to reach the inspection station he had specific intent and he took a substantial
step toward reentry]. See generally U.S. v. Gonzalez-Corn, 807 F.3d 989, 996 (9th Cir. 2015) [deportation
order in combination with prior admissions is sufficient to prove alienage]; U.S. v. Ruiz-Lopez, 749 F.3d
1138 (9th Cir. 2014) [a deportation order alone is insufficient to establish alienage, but an I-213 and other
documents in the “A” file are sufficient]; U.S. v. Harvey, 746 F.3d 87, 89-90 (2d Cir. 2014) [properly
executed warrant of deportation with testimony regarding usual deportation procedures was sufficient to
establish that person was physically deported]; U.S. v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010)
[upheld conviction despite improper submission of certificate of nonexistence of record (CNR) on
harmless error grounds and despite challenge to submission of warrant of removal based upon Melendez-
Diaz v. Massachusetts, 557 U.S. 305 (2009)]; U.S. v. Contreras Palacios, 492 F.3d 39 (1st Cir. 2007)
[conviction upheld on challenge to alienage where government produced only the “A” file which contained
conflicting information]; U.S. v. Garcia, 452 F.3d 36 (1st Cir. 2006) [affidavit of Page 376 defendant in his
“A” file coupled with fingerprint card and warrant of deportation were sufficient to establish prior
deportation] U.S. v. Bahena-Cardenas, 411 F.3d 1067, 1072–73 (9th Cir. 2005) [finding evidence sufficient
to sustain elements of the crime including submission of warrant of deportation as proof of physical
removal notwithstanding Crawford’s prohibition on testimonial evidence without cross-examination]; U.S.
v. Torres-Villalobos, 487 F.3d 607, 612–13 (8th Cir. 2007) [conviction upheld against Crawford challenge
to warrants of deportation]. But see U.S. v. Duron-Caldera, 737 F.3d 988 (5th Cir. 2013) [reversed
conviction where court refused to exclude affidavit that rebutted claim of derivative citizenship because it
was testimonial evidence under Crawford]; U.S. v. Bustamante, 687 F.3d 1190 (9th Cir. 2012) [affidavit
testifying to contents of birth records, as purported “copy” of defendant’s Philippine birth certificate was
testimonial statement violating the Confrontation Clause]; U.S. v. Terraza-Palma, 890 F.Supp.2d 1251
(C.D. Cal. 2012) [warrant of removal is not permissible to establish alienage]. To establish the crime of
reentry, the government must demonstrate that the person reentered the U.S. without the permission of
the AG. The defendant’s belief that he need not have the AG’s permission is irrelevant. U.S. v. Rea-
Beltran, 457 F.3d 695, 702 (7th Cir. 2006). But see U.S. v. Alvarado-Delgado, 98 F.3d 492 (9th Cir. 1996)
[lawfulness of the prior deportation order is not an element of the offense, although defendant may
collaterally challenge the order]. A person physically removed from the U.S. while a stay was in effect is
not “deported” under the statute and cannot be tried for unlawful reentry. U.S. v. Fermin-Rodriguez, 5
F.Supp.2d 157 (S.D.N.Y. 1998).
A summary removal order under §1228(b) or §1225(b) may serve as the basis for an illegal reentry
charge. U.S. v. Calderon-Segura, 512 F.3d 1104, 1107–08 (9th Cir. 2008) [use of expedited removal under
8 USC §1228(b) as the basis for a “found in” charge does not violate equal protection]; U.S. v. Garcia-
Martinez, 228 F.3d 956 (9th Cir. 2000) [INS officers conducting both prosecutorial and adjudicative
functions is not violative of due process]; U.S. v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999)
[reversing district court order that had considered deportation order under former §1228(b) on grounds
that summary deportation meets minimum due process notice requirements and the commingling of
prosecutorial and adjudicative functions is permissible]. But see U.S. v. Barajas-Alvarado, 655 F.3d 1077,
1087 (9th Cir. 2011) [holding that 8 USC §1225(b)(1)(D) is unconstitutional to the extent it does not permit
some meaningful review of the expedited removal proceeding for purposes of a prosecution under 8 USC
§1326]. A removal order also includes an in absentia order. U.S. v. Ramirez-Carcamo, 559 F.3d 384 (5th
Cir. 2009) [upholding conviction for reentry after removal where defendant departed the U.S. after service
of the NTA but before any hearing]. Deportation also includes an agreement in which a person stipulates
to removal, whether or not the stipulation is during a state or federal criminal trial. 8 USC §1326. But see
U.S. v. Ramos, 623 F.3d 672 (9th Cir. 2010) [stipulated removal order violated due process where
deportation officer’s lack of Spanish skills meant that defendant had not knowingly waived right to removal
proceeding and counsel].Deportation means physical removal, not the entry of the order. U.S. v. Zelaya,
293 F.3d 1294, 1298 (11th Cir. 2002) [deportation was subsequent to a conviction when the alien is
physically removed from the U.S. after the conviction even if the warrant for the deportation was issued
before the conviction]. A person cannot be charged under §1326 who was not physically deported.U.S. v.
Romo-Romo, 246 F.3d 1272 (9th Cir. 2001) [where person evaded removal after deportation order, he
cannot be charged with reentry or attempted reentry]. However, the location of deportation is not relevant
and it is not a defense to illegal reentry that the person was deported to the wrong country. U.S. v.
Sanchez, 604 F.3d 356 (7th Cir. 2010) [El Salvadoran citizen mistakenly deported to Mexico could not use
mistaken deportation as a defense or even as a significant issue to argue to the jury]. Nor can they be
charged if the deportation order was invalid. U.S. v. Martinez, 786 F.3d 1227 (9th Cir. 2015) [motion to
dismiss indictment for reentry following deportation based on conviction of third-degree child molestation
under Wash. Rev. Code §9A.44.089 was granted because it is not categorically sexual abuse of a minor
as it criminalizes a broader swath of conduct than the generic offense; defendant was not removable as
charged].
A false claim to U.S. citizenship or lawful residency is not an element of the crime. U.S. v. Barnes, 244
F.3d 331 (2d Cir. 2001). Intent to enter the U.S. unlawfully is also not an element of the crime. U.S. v.
Carlos-Colmenares, 253 F.3d 276 (7th Cir. 2001) [specific intent to enter without AG’s consent is not
required]; U.S. v. Gonzalez-Chavez, 122 F.3d 15 (8th Cir. 1997); Page 377 U.S. v. Henry, 111 F.3d 111
(11th Cir. 1997) [specific intent is not required]; U.S. v. Guzman-Ocampo, 236 F.3d 233 (5th Cir. 2000)
[§1326 requires only general intent in context of “found-in” case]; U.S. v. Meraz-Valeta, 26 F.3d 992, 997
(10th Cir. 1994);U.S. v. Champegnie, 925 F.2d 54 (2d Cir. 1991) [person’s subjective, good faith, but
mistaken belief as to legality of entry is irrelevant]; U.S. v. Espinoza-Leon, 873 F.2d 743 (4th Cir. 1989)
[only general intent required]; Pena-Cabanillas v. U.S., 394 F.2d 785, 788–89 (9th Cir. 1968) [legislative
history demonstrates that specific intent is not required].
Where matters are an element of the offense, however, each must be stated in the indictment or the
conviction is not valid. U.S. v. Cabrera-Teran, 168 F.3d 141 (5th Cir. 1999) [conviction under former
version of statute reversed where government failed to list on the indictment that the person was
previously arrested as well as deported]. But see U.S. v. Landeros-Mendez, 206 F.3d 1354 (10th Cir.
2000) [where deportation order not introduced, jury could still infer from physical expulsion and officer’s
testimony that deportation occurred]; U.S. v. Pena-Renovato, 168 F.3d 163 (5th Cir. 1999) [where person
removed but charged with being deported, conviction stands because removal and deportation
proceedings are the same]. U.S. v. Nunez-Rodelo, 378 F.3d 877 (9th Cir. 2004) [same]; U.S. v. Lopez-
Gonzalez, 183 F.3d 933 (9th Cir. 1999) [same]. The government must also allege an overt act in seeking a
conviction under §1326. U.S. v. Resendiz-Ponce, 425 F.3d 729 (9th Cir. 2005) [reversing conviction for
attempted unlawful entry where no overt act was alleged in the indictment]. If all elements are not proven,
the conviction will be reversed. U.S. v. Valdez-Novoa, 780 F.3d 906, 923 (9th Cir. 2015) [finding that a
defendant who approached a port of entry to seek asylum or was under the mistaken assumption that he
had been granted permission to reenter would not be guilty of attempted illegal entry]; U.S. v. Bahena-
Cardenas, 70 F.3d 1071 (9th Cir. 1995) [where no warrant of arrest was served under former statute,
defendant’s self-deportation while case before BIA was not enough to trigger conviction]; U.S. v. Morales-
Tovar, 37 F.Supp.2d 846 (W.D. Tex. 1999) [government failed to prove that defendant sought to re-enter
or had intent to enter in violation of law where he presented himself at the border and asked how he could
replace his green card].
1.c. Attempt—There is a split in the circuits as to whether “attempt” to reenter is a specific intent crime.
Compare U.S. v. Rodriguez, 416 F.3d 123, 125–27 (1st Cir. 2005) [specific intent not required for
attempted illegal reentry under §1326]; U.S. v. Morales-Palacios, 369 F.3d 442 (5th Cir. 2004) [specific
intent is not required for attempted illegal reentry because it is a regulatory crime]; U.S. v. Peralt-Reyes,
131 F.3d 956 (11th Cir. 1997) [specific intent not required] Gilbert v. U.S., 489 F.Supp.2d 150, 153–54
(N.D.N.Y. 2006) [attempted entry is not specific intent crime; person who boarded train in Canada bound
for NY was properly found guilty]; with U.S. v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (en banc)
[specific intent is required for attempt crime because “Congress intended to incorporate the well-
established common law meaning of ‘attempt’ into §1326” and the government must demonstrate that “the
defendant had the purpose, i.e., conscious desire, to re-enter the United States without the express
consent of the Attorney General.”]; U.S. v. Castillo-Mendez, 868 F.3d 830, 837-38 (9th Cir. 2017) [whether
defendant was actually under official restraint is irrelevant to an attempted reentry charge; rather what
matters is the defendant’s state of mind which means whether he specifically intended to reenter free from
official restraint]; U.S. v. Argueta-Rosales, 819 F.3d 1149 (9th Cir. 2016).
1.d. Statutory Language Requires DHS’s Permission Before Re-entering [8 USC §1326(a)(2)]—Under the
former INA §212(a)(6)(B) (now INA §212(a)(9)(A)(ii)), a person seeking to re-enter the U.S. 5/10 years
after removal does not have to seek the AG’s permission before entry. The government’s permission to
reenter can only be sought after the last physical deportation. U.S. v. Hernandez-Quintania, 874 F.3d 1123
(9th Cir. 2017) [defendant’s argument that he could have received an approved petition years before was
of no avail because the INA only permits AG approval from the last physical removal]. Notwithstanding
admissibility for immigration purposes, a person may be charged for illegal reentry if she did not obtain
DHS’s permission to reenter even if the 5/10 year period has run. U.S. v. Romero-Caspeta, 744 F.3d 405
(6th Cir. 2014); U.S. v. Marte, 356 F.3d 1336, 1341–42 (11th Cir. 2004) [upholding conviction for attempted
reentry where applicant did not seek I-212 permission to re-apply]; U.S. v. Joya-Martinez, 947 F.2d 1141
(4th Cir. 1991); U.S. v. Bernal-Gallegos, 726 F.2d 187 (5th Cir. 1984). But see U.S. v. Zepeda-Gonzales,
611 F.App’x 394, 396 (9th Cir. 2015) [“Section 1326(a)(2)(B) Page 378 provides a defense if the alien
establishes that, at the time he reentered the United States, he was not required to obtain the Attorney
General’s consent to reapply for admission”].At least one court has found that the government may prove
that the AG did not give permission to re-enter by submitting a certificate of nonexistence of record in
DHS files. U.S. v. Sanchez-Milam, 305 F.3d 310 (5th Cir. 2002). The government is not required to prove
that the defendant did not have a visa. The government need only prove: (1) that the defendant is an alien
who was previously arrested and deported; (2) that he re-entered the U.S. voluntarily; and (3) that he
failed to secure the express permission of the AG. U.S. v. Martus, 138 F.3d 95 (2d Cir. 1998) [reentry at
checkpoint without being stopped by INS is not express permission of the AG]; U.S. v. Joya-Martinez, 947
F.2d 1141 (4th Cir. 1991) [proof of visa is not an element of the crime and therefore burden is on
defendant; rejecting selective prosecution claim]; U.S. v. Mancebo-Santiago, 875 F.Supp. 1030 (S.D.N.Y.
1995) [rejecting defense that person was admitted at the border where he did not inform border officials of
previous deportation]; U.S. v. Soto, 106 F.3d 1040 (1st Cir. 1997) [person re-entering with visa but without
AG’s permission after deportation is culpable]; U.S. v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir. 1996)
[same]; U.S. v. Asibor, 109 F.3d 1023, 1035–36 (5th Cir. 1997) [rejecting good-faith defense based on
approved I-130]. Defendant’s belief that he need not have the AG’s permission is irrelevant. U.S. v. Rea-
Beltran, 457 F.3d 695, 702 (7th Cir. 2006). It is not a defense that subsequent to reentry, a person became
a temporary resident. U.S. v. Gutierrez-Alba, 128 F.3d 1324, 1327–28 (9th Cir. 1997) [amnesty
subsequent to entry not a defense]. But see U.S. v. Fermin-Rodriguez, 5 F.Supp.2d 157 (S.D.N.Y. 1998)
[person unlawfully removed despite automatic stay while case on appeal was not deported within meaning
of statute]; U.S. v. Idowu, 105 F.3d 728 (D.C. Cir. 1997) [defendant who waited outside U.S. for 5 years
and re-entered on green card allowed to withdraw plea and defend on INA §212(a)(6)(B)]. See also U.S.
v. Smith-Baltiher, 424 F.3d 913, 922–25 (9th Cir. 2005) [in certain circumstances, there may be a mens
rea defense that defendant’s reasonable belief he was a U.S. citizen did not require the AG’s consent to
cross into U.S.].
1.e. Reentry May Extend Beyond the 12-Mile Limit—U.S. v. De Leon, 270 F.3d 90 (1st Cir. 2001) [person in
ship stopped by Coast Guard beyond the 12-mile limit subject to prosecution notwithstanding the
Convention on the Territorial Sea and the Contiguous Zone, Article 24].
1.f. Constitutionality of §1326 Has Been Upheld—U.S. v. Bahena-Cardenas, 411 F.3d 1067, 1072–73 (9th
Cir. 2005) [not unconstitutional under Apprendi on theory that prior deportation/removal hearing is an
element of the offense and it requires a lower standard of proof and less procedural protections]; U.S. v.
Martinez, 434 F.3d 1318, 1323 (11th Cir. 2006) [Supreme Court decisions in Apprendi, Blakely,
Booker,and Shepard, while casting doubt on Almendarez,have not overruled it, so uncharged prior
convictions can be used to enhance defendant’s sentence]; U.S. v. Hernandez-Guerrero, 147 F.3d 1075
(9th Cir. 1998) [Congress has inherent powers to criminalize immigration matters].
1.g. Failure to Establish Entry and Existence of Official Restraint as a Defense—A conviction requires an
entry under traditional standards which includes freedom from official restraint. U.S. v. Vazquez-
Hernandez, 849 F.3d 1219 (9th Cir. 2017) [conviction reversed where lower court failed to give an
instruction on freedom from restraint where defendant was in a preinspection area under heavy
surveillance]; U.S. v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005) [where defendant was observed
before he entered U.S. and upon seeking to enter went straight to a border patrol officer and said he
wanted to go before an IJ and go to jail, he was never free from official restraint, and charge of attempted
illegal entry could not be sustained]; U.S. v. Bello-Bahena, 411 F.3d 1083, 1088–91 (9th Cir. 2005)
[reversing conviction where jury instruction on lack of freedom from official restraint was not granted]; U.S.
v. Gonzalez-Torres, 309 F.3d 594, 597–99 (9th Cir. 2002) [where defendant was under observation before
crossing the border, conviction reversed because he had not made an entry]; U.S. v. Castellanos-Garcia,
270 F.3d 773, 775 (9th Cir. 2001) [no unlawful entry when person is under “constant observation by
government authorities” from the time of physical entry until the time of arrest]; U.S. v. Castillo, 621
F.Supp.2d 760, 770–71 & n.4 (D. Ariz. 2008) [acknowledging “constant surveillance” defense]. See also
U.S. v. Argueta-Rosales, 819 F.3d 1149, 1151 (9th Cir. 2016) [where defendant crossed in the U.S. in a
delusional state, believing he was being chased by Mexican gangs, and with the specific intent solely to
place himself into the protective custody of U.S. officials, he could not be convicted of illegal reentry]; U.S.
v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000); Page 379 Correa v. Thornburgh, 901 F.2d 1166, 1172
(2d Cir. 1990); Vitale v. INS, 463 F.2d 579, 581-82 (7th Cir. 1972); U.S. v. Vasilatos, 209 F.2d 195, 197 (3d
Cir. 1954). But see U.S. v. Vela-Robles, 397 F.3d 786 (9th Cir. 2005)[official restraint preventing entry
does not arise when defendant triggers sensor at border]; U.S. v. Hernandez-Herrera, 279 F.3d 1213,
1218–19 (9th Cir. 2001) [where defendant was tracked but not under continuous surveillance while
crossing the border, he made an entry]. The crime of attempted entry may be charged even if the person
makes an entry. U.S. v. Rivera-Relle, 333 F.3d 914 (9th Cir. 2003) [person may be convicted of attempt
even if he has actually completed the crime]. A person may be convicted of “attempted entry” even if he is
under surveillance when he seeks to enter. U.S. v. Leos-Maldonado, 302 F.3d 1061 (9th Cir. 2002).
1.h. Justification as a Defense—Where person had no legal alternative to violating the law because, for
example, he was fleeing persecution. U.S. v. Nwene, 20 F.Supp.2d 716, 720–22 (D.N.J. 1998)
[justification is an affirmative defense requiring a showing that there was no legal alternative to violating
the law; that the harm to be prevented was imminent; and that there is a direct causal relationship
between defendant’s actions and the avoidance of harm]. But see U.S. v. Castro-Cabrera, 534 F.Supp.2d
1156, 1162 (C.D. Cal. 2008) [evidence that defendant sought to return because of dying mother or cultural
assimilation are irrelevant and a motion in limine was granted]; U.S. v. Grieveson, 110 F.Supp.2d 880
(S.D. Ind. 2000) [person required by warrant to appear in court could not obtain jury instruction of a
“reasonable belief” defense].
1.i. Duress as a Defense—Requires a showing that there is: (1) an immediate threat of death or serious
bodily injury; (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity
to escape the threatened harm. U.S. v. Portillo-Vega, 478 F.3d 1194, 1197–1202 (10th Cir. 2007) [where
respondent was in the U.S. for over 3 months before reporting his circumstances and therefore did not
surrender as soon as the claimed duress had lost its coercive force, the district court did not abuse its
discretion in denying the defense]. See also U.S. v. Marceleno, 819 F.3d 1267 (10th Cir. 2016) [rejected
defense in context of Rule 11 motion to withdraw plea].
1.j. Consent as Defense—U.S. v. Hermoso-Garcia, 413 F.3d 1085, 1088–89 (9th Cir. 2005) [rejecting
argument that approval of I-130 constituted consent to re-enter the U.S.].
1.k. Double Jeopardy as Defense—U.S. v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007) [double jeopardy
attaches so that a perjury charge arising out of first trial cannot go forward where jury, in order to acquit
him of illegal reentry, had to have decided that testimony was truthful].
1.l. Citizenship as a Defense—A person who derived U.S. citizenship cannot be charged with a crime under
§1326, because alienage is an element of the crime. U.S. v. Hernandez-Meza, 720 F.3d 760, 765 (9th Cir.
2013) [“so long as the defendant doesn’t perjure himself or present evidence he knows to be false,” he
“can exploit weaknesses in the prosecution’s case” by presenting evidence of citizenship even though he
knows he is not a citizen]; U.S. v. Evans, 728 F.3d 953 (9th Cir. 2013) [exclusion of defendant’s delayed
registration of birth violated his due process right to present a defense]; U.S. v. Juarez, 672 F.3d 381, 387-
89 (5th Cir. 2012) [finding ineffective assistance of counsel for failing to rely on this book and other
materials regarding derivative citizenship claim when pleading to illegal reentry]; U.S. v. Marguet-Pillado,
648 F.3d 1001, 1008 (9th Cir. 2011) [even where court had previously held defendant was not a citizen,
defendant was still entitled to a jury instruction on citizenship because the government was still required to
meet its burden of proof on alienage] U.S. v. Sandoval-Gonzalez, 642 F.3d 717 (9th Cir. 2011) [reversed
conviction where court told jury there was a presumption of alienage and treated derivative citizenship
claim as an affirmative defense that defendant had to prove rather than a defense that the government
had the burden to overcome by proving alienage]; U.S. v. Smith-Baltiher, 424 F.3d 913, 920–22 (9th Cir.
2005) [reversing conviction where defendant was denied right to present evidence of acquisition of
citizenship at birth]; U.S. v. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999) [withdrawal of guilty plea
permitted where person discovered they may be derivative citizen]; U.S. v. Castro-Cabrera, 534
F.Supp.2d 1156, 1162 (C.D. Cal. 2008) [evidence that defendant may be a derivative citizen is relevant
and admissible]. But see U.S. v. Espinoza-Baza, 647 F.3d 1182 (9th Cir. 2011) [even though evidence of
derivative citizenship was relevant, its probative value was substantially outweighed by the danger of
unfair prejudice]; U.S. v. Guerrier, 428 F.3d 76 (1st Cir. 2005) [district judge did not err in granting motion
in limine Page 380 to strike defendant’s derivative citizenship defense where he could not proffer facts
that he qualified]; U.S. v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002) [claim that derivative citizenship
statute violated equal protection in his case does not assist defendant because even if statute was
stricken as unconstitutional it would not result in defendant receiving citizenship]; U.S. v. Simpson, 929
F.Supp.2d 177 (E.D.N.Y. 2013) [extensive discussion of Panamanian legitimation concluding that
defendant was not a derivatively naturalized citizen and holding that INS’s agreement on two occasions
that defendant was a citizen could not be presented to jury].
1.m. Lacking Mens Rea as a Defense—U.S. v. Smith-Baltiher, 424 F.3d 913, 923–25 (9th Cir. 2005) [in
certain circumstances there may be a mens rea defense that defendant’s reasonable belief he was a U.S.
citizen did not require the AG’s consent to cross into U.S.]. Generally, however, the defendant’s intent or
motive is not an element of or defense to illegal reentry because it is not a specific intent crime. U.S. v.
Flores-Martinez, 677 F.3d 699, 712 (5th Cir. 2012); U.S. v. Manzanares-Sanabria, 814 F.Supp.2d 1155,
1158-59 (D.N.M. 2011) [and cases cited therein].
1.n. Suppression of Evidence—The circuits are split as to whether a defendant’s immigration file or identity
can be suppressed. U.S. v. Bowley, 435 F.3d 426, 430–31 (3d Cir. 2006) (and cases cited therein)
[defendant has no possessory interest or reasonable expectation of privacy in his immigration file; absent
egregious circumstances referred to in Lopez-Mendoza,the file or identity will not be suppressed]. See
also U.S. v. Orozco-Gonzalez, 60 F.Supp.2d 599 (W.D. Tex. 1999) [evidence of unlawful status cannot be
suppressed in an illegal reentry case]. But see U.S. v. Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006)
[Lopez-Mendoza does not preclude the suppression of fingerprints or person’s “A” file]; U.S. v. Garcia-
Beltran, 389 F.3d 864 , 865–69 (9th Cir. 2004) [followed holding in Guevara-Martinez regarding
suppression of fingerprints]; U.S. v. Guevara-Martinez, 268 F.3d 751 (8th Cir. 2001) [suppressing
fingerprints]. See also U.S. v. Argueta-Mejia, 166 F.Supp.3d 1216, 1222-29 (D. Colo. 2014), aff’d, 615
F.App’x. 485 (10th Cir. 2015) [in illegal reentry case a motion to suppress granted where local police
officer had no authority to arrest defendant for an immigration violation and court rejected INA §287(g)(10)
argument]. For additional information, see in this chapter “Suppression of the Alien File,” ¶ X.F.15 (p.459),
infra.
2. “Found In”
2.a. In General—A person “found in” the United States after having been deported is subject to criminal
penalties under 8 USC §1326(a)(2). The “found in” language refers to being found by federal not state
officials, and a person, for statute of limitations purposes, is deemed to be found in the U.S. when the
federal official either knows of or, “with the exercise of diligence typical of law enforcement authorities,
could have discovered the illegality of the defendant’s presence.” U.S. v. Clarke, 312 F.3d 1343, 1346
(11th Cir. 2002); U.S. v. Scott, 447 F.3d 1365 (11th Cir. 2006). The statute of limitations is 5 years but
determination of a timely indictment is based upon the totality of the circumstances. U.S. v. Palomino
Garcia, 606 F.3d 1317, 1320-25 (11th Cir. 2010) [statute of limitations did not run despite defendant’s wife
filing an I-130 petition with accurate information, including defendant’s address, seven years prior to
indictment]. See also U.S. v. Gordon, 513 F.3d 659, 663–65 (7th Cir. 2008) [rejecting “constructive
knowledge” standard where person entered with green card that he knew was no longer valid and by
doing so did not put immigration on notice that he was illegal]; U.S. v. Herrera-Ordones, 190 F.3d 504, 510
(7th Cir. 1999) [found in requires that DHS discover the deported person’s physical presence in the U.S.,
and ascertain the person’s identity (as illegal) and status (as one who re-entered after deportation)]; U.S.
v. Garcia-Moreno, 626 F.Supp.2d 826, 829–34 (W.D. Tenn. 2009) [citing split in circuits and determining
that the crime is not a continuing one and is complete for statute of limitation purposes when a federal
officer discovers the person’s physical presence and his illegal status]. However, a person cannot be
indicted for being “found in” the U.S. when he was not physically present in the U.S. at the time of the
indictment. U.S. v. Thomas, 492 F.Supp.2d 405 (S.D.N.Y. 2007) [defendant who illegally reentered the
U.S. after removal but left the U.S. from Dec. 1999 to Dec. 2006 when he was stopped in transit at airport
could not be indicted in September 2006 for being found in the U.S. because he was not in the U.S. at the
time of the indictment].
To be convicted of a found-in crime, the government must prove beyond a reasonable doubt that the
defendant is an alien, was previously deported or denied admission, entered the U.S. Page 381
voluntarily and had knowledge that he was committing the underlying act that made his conduct illegal—
entering or remaining in the U.S. after being deported. U.S. v. Salazar-Gonzalez, 458 F.3d 851, 855–58
(9th Cir. 2006) [district court erred, but conviction not reversed, where court failed to give instruction on
voluntariness and knowledge]; U.S. v. Sierra-Ledesma, 645 F.3d 1213, 1217-24 (10th Cir. 2011)
[government must prove defendant acted with the limited intent to do the act of entering the country]. Cf.
U.S. v. Hernandez-Hernandez, 519 F.3d 1236 (10th Cir. 2008) [rejecting intoxication and “black-out”
defense because it does not make it any more or less likely that he was innocently carried across the
border against his will]. There is a split in the circuits regarding persons turned away at the Canadian
border and returned to the U.S. See U.S. v. Ambriz-Ambriz, 586 F.3d 719, 723–25 (9th Cir. 2009)
[sustained jury verdict of person “found in” the U.S. when defendant drove to Canada, was not admitted,
and returned to the U.S. border because he is considered to have never left the U.S.]; U.S. v. Gonzalez-
Diaz, 650 F.3d 1239 (9th Cir. 2011) [same]. But see U.S. v. Macias, 740 F.3d 96 (2d Cir. 2014) [rejected
Ambriz-Ambriz and found that person had left the U.S. and when forcibly returned from Canada was not
“found in” the U.S.]; Margulis v. Holder, 725 F.3d 785 (7th Cir. 2013) [person stopped “just inside Canadian
territory” but not admitted to Canada nevertheless departed the U.S., should be treated on return as an
applicant for admission, and removal proceeding should be terminated]; U.S. v. Ayala-Ayala, 470
F.Supp.2d 281 (W.D.N.Y. 2007) [person turned away at Canadian border who then presents himself to
immigration at U.S. border cannot be charged with being “found in” U.S.]. However, even if a person
cannot be charged under the “found in” provision, she could be charged as a person who attempted
reentry. U.S. v. Cardenas-Alvarez, 987 F.2d 1129, 1132–33 (5th Cir. 1993) [person stopped at inspection
station could be charged with attempted reentry but not found in]. A person can be charged with being
“found in” the U.S. even if she did not enter illegally and even if the government does not allege or prove
entry. U.S. v. Rivera-Sillas, 417 F.3d 1014, 1019–20 (9th Cir. 2005) [government need not plead nor prove
entry to convict on a “found-in” charge]; U.S. v. Pina-Jaime, 332 F.3d 609 (9th Cir. 2003) [previously
deported defendant who was paroled into U.S. for one day to attend custody hearing violated the “found
in” provision by staying beyond that day]; U.S. v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001)
[limiting Pacheco-Medina and not requiring proof of entry for “found in” charge]; U.S. v. Ortiz-Villegos, 49
F.3d 1435 (9th Cir. 1995); U.S. v. Gay, 7 F.3d 200 (11th Cir. 1993). But see U.S. v. Muniz-Jaquez, 718
F.3d 1180, 1183 (9th Cir. 2013) [finding that it logically follows that an entry is required before a person is
“found in” the U.S. and reversing conviction where there was withheld evidence that defendant may have
been under official restraint]. The person’s physical presence at the time he was “found in” the U.S.
cannot be proven by judicial notice that he is at trial now. U.S. v. Herrera-Ochoa, 245 F.3d 495, 499–502
(5th Cir. 2001). The “found in” provision is “passive” and does not raise any issue of voluntariness. U.S. v.
Dixon, 327 F.3d 257 (3d Cir. 2003) [found in police custody due to parole violation arising out of traffic
violation]; U.S. v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir. 2000) [person found in state prison]. No
specific intent is required. U.S. v. Berrios-Centeno, 250 F.3d 294 (5th Cir. 2001). Only general intent is
required and that may be inferred from the fact that the defendant was previously deported and
subsequently found in the U.S. U.S. v. Rivera-Sillas, 417 F.3d 1014, 1020–21 (9th Cir. 2005) [although
§1326 is not a status or strict liability offense, involuntary presence in the U.S. is the rare exception not
the rule, and an inference of voluntariness is raised where the person is found in the U.S. and has raised
no evidence to the contrary]; U.S. v. Berrios-Centeno, 250 F.3d 294, 299 (5th Cir. 2001). The government
does not have to allege in the indictment the exact date the person is found in the U.S. U.S. v. Gondinez-
Rabadan, 289 F.3d 630, 633–34 (9th Cir. 2002). And the government may use the same removal order to
successively establish multiple “found-in” offenses. U.S. v. Sanchez-Aguilar, 719 F.3d 1108, 1110 (9th Cir.
2013) [nothing “inherently wrong” with using the same removal order as the basis for more than one
conviction so long as the government proves the defendant was outside U.S. after each conviction]. The
provision has withstood an Eighth Amendment, cruel and unusual punishment challenge, and a due
process challenge on the grounds that it punishes status and is a strict liability statute. U.S. v. Tovias-
Marroquin, 218 F.3d 455, 456–57 (5th Cir. 2000) [found in is not a status crime]; U.S. v. Cupa-Guillen, 34
F.3d 860 (9th Cir. 1994) [statute requires intent to convict]. Venue arises where DHS first discovers the
person. U.S. v. Hernandez, 189 F.3d 785 (9th Cir. 1999) [dismissing indictment, rejecting Page 382 claim
that person may be found in more than one district]. But because “found in” is a continuing offense it may
begin with a non-DHS officer finding the deported person but must end when the DHS officer “finds” him
or her. U.S. v. Jimenez-Borja, 378 F.3d 853 (9th Cir. 2004) [found in begins when deportee was found by
local police and is a continuing offense that ends when he is found by DHS]; U.S. v. Ruelas-Arreguin, 219
F.3d 1056, 1060–62 (9th Cir. 2000) [finding that venue was proper either where the illegal entry was made
or where the crime was completed]; U.S. v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996) [found in is
continuing offense and person in prison on state charge falls within statute]. But see U.S. v. Rivera-
Ventura, 72 F.3d 277, 281–82 (2d Cir. 1995) [not a continuing offense]. A party who conceals his
whereabouts knowing he is subject to criminal prosecution, however, tolls the statute of limitations. Id.
2.b. Venue as a Defense—Under the Sixth Amendment, a defendant has the right to be tried in the district
where the offense was committed. See also Article III, §2, cl. 3 of the U.S. Constitution; Fed. R. Crim. P.
18; U.S. v. Cores, 356 U.S. 405, 407 (1958). When ICE placed a detainer on a defendant incarcerated in
county jail, he was “found in” that district and it was error to try him in the district he was transferred to
when formally placed in ICE custody. U.S. v. Hernandez-Hernandez, 291 F.Supp.2d 490 (W.D. Tex. 2003).
See also —U.S. v. Orona-Ibarra, 831 F.3d 867 (7th Cir. 2016) [case dismissed for improper venue where
defendant re-entered U.S. in Texas, remained in custody in Texas, and while in custody was transferred to
Illinois]. But see U.S. v. Rivera-Mendoza, 682 F.3d 730, 733 (8th Cir. 2012) [arrested for false documents
in Des Moines but taken to Cedar Rapids, Iowa where finger prints confirmed a prior deportation order
and therefore venue was proper in Cedar Rapids which was in the Northern District of Iowa].
2.c. Defense that Person Was Under Official Restraint Prior to Entry—A person stopped at the border or
who did not make an entry because he was never free from official restraint cannot be charged under 8
USC §1326(a)(2) as a person “found in” the country, U.S. v. Zavala-Mendez, 411 F.3d 1116, 1118–21 (9th
Cir. 2005) [where defendant presented himself at the Alaskan border station that was physically a short
distance inside the U.S., conviction was reversed]; U.S. v. Gonzalez-Torres, 309 F.3d 594, 597–99 (9th
Cir. 2002) [where defendant was under observation before crossing the border his conviction was
reversed because he did not enter]; U.S. v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000) [defendant
who was under surveillance and captured within seconds of crossing was within official restraint at all
times and did not enter U.S.]; U.S. v. Ruiz-Lopez, 234 F.3d 445 (9th Cir. 2001) [conviction reversed for
lack of evidence where one officer testified he encountered defendant at the border station and the
arresting officer could not remember the arrest]; U.S. v. Angeles-Mascote, 206 F.3d 529 (5th Cir. 2000)
[never entered because he was stopped at border]; U.S. v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974)
[never evaded U.S. inspection because under official restraint]; U.S. v. Argueta-Rosales, 819 F.3d 1149,
1151 (9th Cir. 2016) [where defendant crossed in the U.S. in a delusional state, believing he was being
chased by Mexican gangs, and with the specific intent solely to place himself into the protective custody of
U.S. officials, he could not be convicted of illegal reentry]; But see U.S. v. Cruz-Escoto, 476 F.3d 1081,
1085–86 (9th Cir. 2007) [defendant caught running 100–150 yards inside the U.S. but before permanent
post, did enter and conviction was upheld]; U.S. v. Rivera-Sillas, 417 F.3d 1014, 1019–20 (9th Cir. 2005)
[government need not plead nor prove entry to convict on a “found-in” charge]; U.S. v. Ramos-Godinez,
273 F.3d 820 (9th Cir. 2001) [defendant who was out of sight for 2 significant periods while crossing
border made entry and could be charged as “found in” U.S.]. Surveillance need not be by federal officials.
See U.S. v. Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir. 2005). But a person who was never admitted
to a foreign country and returned to the U.S. border may not be charged as “found in” the U.S. See in this
section ¶ 2.a (p.380), supra.
2.d. Citizenship Defense—U.S. v. Evans, 728 F.3d 953 (9th Cir. 2013) [exclusion of defendant’s delayed
registration of birth violated his due process right to present a defense]; U.S. v. Hernandez-Meza, 720
F.3d 760, 765 (9th Cir. 2013) [“so long as the defendant doesn’t perjure himself or present evidence he
knows to be false,” he can “exploit weaknesses in the prosecution’s case” by presenting evidence of
citizenship even though he knows he is not a citizen]; U.S. v. Marguet-Pillado, 648 F.3d 1001 (9th Cir.
2011) [reversed conviction where defendant was deprived of jury instruction regarding his claim of
derivative citizenship]; U.S. v. Thompson-Riviere, 561 F.3d 345 (4th Cir. 2009) Page 383 [person born in
the Canal Zone to unwed USC father was a citizen and therefore was legally innocent of found in charge
and could withdraw his guilty plea].
2.e. Insanity/Duress Defense—An insanity defense, like a duress defense, in a “found in” case may not just
be asserted for the time-period when the person entered but must be for the full time of the illegal stay.
U.S. v. Alvarez-Ulloa, 784 F.3d 558, 568 (9th Cir. 2015) [because “found in” is a continuing violation,
unlike illegal reentry, defendant “needed to prove that he was legally insane for virtually the entire duration
of his illegal stay, such that he could not reasonably have left the United States”]; U.S. v. Portillo-Vega,
478 F.3d 1194 (10th Cir. 2007) [same issue as to duress defense because defendant needed to show that
he reasonably feared death or serious bodily injury not only when he reentered, but also throughout the
duration of his illegal stay].
2.f. Suppression of Evidence—In the view of some circuits, when an ICE agent interviews a person detained
in prison to ascertain his immigration status, he would not have reasonably known that his questions were
reasonably likely to elicit an incriminating response from the defendant/respondent. U.S. v. Lopez-Garcia,
565 F.3d 1306, 1317 (11th Cir. 2009) [denied suppression on Fifth Amendment grounds of un-Mirandized
statement used to bring criminal “found in” charge]; U.S. v. Salgado, 292 F.3d 1169, 1171 (9th Cir. 2002)
[Miranda warning not required where the immigration officer’s “sole purpose” in interviewing the defendant
was to determine whether he should be deported, and the officer “had no role in determining whether any
particular individual would be prosecuted for violation of the federal immigration laws”]. But see U.S. v.
Mata-Abundiz, 717 F.2d 1277, 1278-79 (9th Cir. 1983) [requiring Miranda warning where an “experienced
INS criminal investigator” questioned the defendant at a local jail about his citizenship and then used this
information to prosecute the defendant for firearm possession by an undocumented alien].
2.g. Void for Vagueness—The “found in” language has been determined not to be void for vagueness. U.S.
v. Palacios-Casquete, 55 F.3d 557, 560–61 (11th Cir. 1995); U.S. v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir.
1994); U.S. v. Meraz-Valeta, 26 F.3d 992, 996–97 (10th Cir. 1994); U.S. v. Whitaker, 999 F.2d 38, 42–43
(2d Cir. 1993). But see U.S. v. Canals-Jimenez, 943 F.2d 1284 (11th Cir. 1991) [questioning whether
“found in” provision is void for vagueness].
3. Statute of Limitations Defense—The 5-year statute of limitations (18 USC §3282) runs from the time the
person is apprehended, not from the time of a surreptitious or fraudulent “entry” or “attempted entry.”
However, a “found in” violation begins when the person is discovered by DHS or should have been
discovered by reasonable diligence. U.S. v. Williams, 733 F.3d 448, 452-55 (2d Cir. 2013) [the limitations
period begins when person’s “presence is discovered” which means when “federal authorities possess
reliable information as to the alien’s whereabouts” and is not limited to physical contact]; U.S. v. Gunera, 479
F.3d 373 (5th Cir. 2007) [where defendant filed for TPS using his correct name, DOB and country of origin,
DHS had knowledge of his illegality where they had a positive hit in a NAILS search]; U.S. v. Lennon, 372
F.3d 535, 541 (3d Cir. 2004) [illegal reentry for “found in” purposes begins when person presents himself
nonsurreptitiously at the port of entry even if immigration fails to react]; U.S. v. Clarke, 312 F.3d 1343, 1347
(11th Cir. 2002) [reasonable diligence standard]; U.S. v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996)
[should have known through reasonable diligence]; U.S. v. Rivera-Ventura, 72 F.3d 277, 281–82 (2d Cir.
1995) [standard is that the government knew or with the exercise of diligence typical of law enforcement
authorities could have discovered defendant’s illegal presence]; U.S. v. Gomez, 38 F.3d 1031, 1037 (8th Cir.
1994) [standard is immigration could have discovered the violation using diligence typical of law enforcement
officer]. But see U.S. v. Ramirez-Salazar, 819 F.3d 256 (5th Cir. 2016) [distinguished Gunera and found that
filing of I-130 where USC petitioner did not sign and left several questions regarding his current location and
status blank did not trigger the running of the statute of limitations, notwithstanding defendant putting his
wife’s current address on the form]; U.S. v. Gordon, 513 F.3d 659, 663–65 (7th Cir. 2008) [rejecting
“constructive knowledge” standard where person entered U.S. with “green card” that he knew was invalid but
in doing so did not put DHS on notice that he was illegal]; U.S. v. DeLeon, 444 F.3d 41, 51–53 (1st Cir. 2006)
[where defendant hid his identity upon reentry, no constructive knowledge]. See also U.S. v. Lopez-Flores,
275 F.3d 661, 663 (7th Cir. 2001) (and cases cited therein); U.S. v. Coeur, 196 F.3d 1344 (11th Cir. 1999)
[sentence enhancement case where person was “found in” U.S. while serving time for illegal reentry]. The
statute, however, may not be tolled simply because someone provides a false identity Page 384 to local
police.U.S. v. Sotelo-Salgado, 201 F.Supp.2d 957 (S.D. Iowa 2002) [where INS knew of person’s presence
and took no action to follow up statute was not tolled]. But see U.S. v. Clarke, 312 F.3d 1343 (11th Cir. 2002)
[for purposes of statute of limitations, the date of discovery by state officials cannot be imputed to INS
officials].But where person provides false identity on entry to DHS he is not “found in” the U.S. until actually
discovered by DHS. U.S. v. Lennon, supra; U.S. v. Acevedo, 229 F.3d 350 (2d Cir. 2000) [regarding person
who entered by fraud through use of green card and was subsequently found in the U.S.].
4. Double Jeopardy—Prosecution for improperly entering the U.S. under 8 USC §1325(a) does not bar
prosecution under double jeopardy for being found in U.S. illegally after deportation under 8 USC §1326(a).
U.S. v. Flores-Peraza, 58 F.3d 164 (5th Cir. 1995). But see U.S. v. Mendoza, 390 F.Supp.2d 925 (N.D. Cal.
2005). Double jeopardy is not offended where criminal proceeding for illegal reentry is brought because
deportation is not a punishment. U.S. v. Garay-Burgos, 961 F.Supp. 1321 (D. Ariz. 1997). Where defendant
was previously convicted for illegal reentry, the government need not prove that he subsequently left the U.S.
to obtain a “found-in” conviction because his post-conviction departure, although necessary to avoid double
jeopardy concerns, was a question of law and not an element of the offense to be submitted to the jury. U.S.
v. Sanchez-Aguilar, 719 F.3d 1108, 1110 (9th Cir. 2013).
5. Necessity Defense—Requires a reasonable jury to conclude: (1) the defendant was faced with a choice of
evils and chose the lesser evil; (2) he acted to prevent imminent harm; (3) he reasonably anticipated a causal
connection between his conduct and the harm to be avoided; and (4) there were no other legal alternative to
violating the law. U.S. v. Cervantes-Flores, 421 F.3d 825, 828–29 (9th Cir. 2005) [denying necessity defense
where defendant was HIV positive and entered U.S. to see his children before he died because testing
positive for HIV does not constitute imminent harm]. The applicant bears the burden of proving the defense
by a preponderance of evidence. U.S. v. Portillo-Vega, 478 F.3d 1194 (10th Cir. 2007) [defendant failed to
meet burden of demonstrating that he availed himself of government authorities at first possible opportunity].
6. Entrapment by Estoppel—To obtain estoppel, government must actively mislead. U.S. v. Ramirez-Valencia,
202 F.3d 1106 (9th Cir. 2000) [where I-294 said “any person who returned within 5 years is guilty of a felony”
the government has not affirmatively misled because they did not say person could lawfully come in after 5
years]; U.S. v. Miranda-Ramirez, 309 F.3d 1255, 1261–62 (10th Cir. 2002) [same]; U.S. v. Aquino-Chacon,
109 F.3d 936 (4th Cir. 1997) [same]; U.S. v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996); U.S. v. Meraz-
Valeta, 26 F.3d 992, 996 (10th Cir. 1994) [person informed reentry caused a 2-year penalty, when in fact it
was a 5-year penalty].
7. Defense that Person Was Involuntarily in U.S.—The voluntariness of a defendant’s reentry “is an element
of the crime and, as such, must be proved beyond a reasonable doubt by the prosecution.”U.S. v. Quintana-
Torres, 235 F.3d 1197, 1200 (9th Cir. 2000); U.S. v. Macias, 740 F.3d 96 (2d Cir. 2014) [rejected Ninth Circuit
decision in U.S. v. Ambriz-Ambriz and found that after person had left the U.S. and was stopped at Canadian
border and forcibly returned from Canada he was not “found in” the U.S.]. However, in U.S. v. Parga-Rosas,
238 F.3d 1209, 1213–14 (9th Cir. 2001), the Ninth Circuit treated Quintana-Torres as a sufficiency of the
evidence case and found that a person in the U.S. who was away from the border would have to
demonstrate the speculative possibility that involuntary entry had taken place. See also U.S. v. Rivera-Sillas,
417 F.3d 1014, 1020–21 (9th Cir. 2005) [although §1326 is not a status or strict liability offense, involuntary
presence is the rare exception not the rule, and an inference of voluntariness is raised where the person is
found in the U.S. and has raised no evidence to the contrary].
8. Miranda Warnings—Where DHS gave confusing warning pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), evidence was suppressed. U.S. v. San Juan-Cruz, 314 F.3d 384 (9th Cir. 2002) [where INS gave
warning that said government does not provide counsel and then gave Miranda warnings saying government
would, confusion warranted reversal of conviction]. When person was not deemed to be in custody at time he
gave incriminating answers, evidence would not be suppressed. U.S. v. Hernandez-Hernandez, 327 F.3d 703
(8th Cir. 2003) [where defendant detained as part of a Terry stop, his subsequent arrest after admitting illegal
entry to INS without Miranda warnings was lawful]. Page 385
9. Arrest Improper as Defense—Person may not be detained under Fed. R. Crim. P. 5(a) for longer than 48
hours for a nonstatus crime without going before a magistrate. Cf. U.S. v. Encarnacion, 239 F.3d 395 (1st Cir.
2001). A person arrested pursuant to a potential charge under §1326 and not brought before a magistrate
within 48 hours does not, absent collusion, violate Fed. R. Crim. P. 5(a), because §1326 is a status crime.
U.S. v. Tejada, 255 F.3d 1, 3–5 (1st Cir. 2001); U.S. v. Noel, 231 F.3d 833, 837 (11th Cir. 2000).
10. Person Not Deported—If person not previously deported, government cannot sustain its burden that
defendant was found in the U.S. after deportation. U.S. v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007)
[although defendant need not be physically present at the time of deportation order because an in absentia
order will suffice, he could not be tried for perjury after being acquitted on the “found in” charge where he
argued he was not present and the government was unable to prove he was deported]. Government may
prove prior deportation as well as lack of permission to return by presenting the certified record of the person.
However, in the absence of the A-file, the government may prove their case through an agent’s testimony
and the defendant’s admission. U.S. v. Fajardo-Fajardo, 594 F.3d 1005, 1008–09 (8th Cir. 2010).
11. Collateral Attack on Validity of Deportation Order Permitted
11.a. In General—Collateral attacks on the validity of deportation orders are permitted. U.S. v. Mendoza-
Lopez, 481 U.S. 828 (1987) [collateral attack permitted where errors in first deportation hearing rendered
hearing fundamentally unfair and respondent was denied effective judicial review of the validity of the
hearing because waiver of appeal was not intelligently and knowingly made]. A defendant may attack a
conviction even if outside of the U.S. U.S. v. Villanueva-Diaz, 634 F.3d 844, 848-49 (5th Cir. 2011) [case
not moot when person deported to Mexico because he seeks to vacate his conviction, not just appeal his
sentence]. Use of expedited removal order is unconstitutional to the degree it does not permit some
meaningful review, but court cured deficiency by determining whether proceeding was fundamental unfair.
U.S. v. Barajas-Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011) [holding that 8 USC §1225(b)(1)(D) is
unconstitutional to the extent it does not permit some meaningful review of the expedited removal
proceeding for purposes of a prosecution under 8 USC §1326, but finding the procedures used in the
expedited removal were not fundamentally unfair and the conviction was therefore upheld]. But see U.S.
v. Sanchez-Aguilar, 719 F.3d 1108 (9th Cir. 2013) [because arriving aliens are entitled only to whatever
process Congress provides, due process did not require agent to advise defendant that he could apply for
relief of withdrawal of application for admission]; U.S. v. Lopez-Vasquez, 227 F.3d 476, 483–85 (5th Cir.
2000) [summary removal is not fundamentally unfair and can be used as a basis for a prior removal order
because the due process rights of an alien seeking admission are left to Congress]. See also U.S. v.
Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) [court dismissed indictment and held that the government
could not defend the improper original in absentia order of removal based upon lack of notice by asserting
that subsequent reinstatement orders under INA §241(a)(5) were valid]; U.S. v. Charleswell, 456 F.3d 347
(3d Cir. 2006) [collateral attack permitted on both reinstatement order under INA §241(a)(5) as well as
underlying order]. Generally a party must show both prongs of Mendoza-Lopez (i.e., hearing
fundamentally unfair and no effective judicial review) to obtain relief. U.S. v. Santos-Vanegas, 878 F.2d
247 (8th Cir. 1989); U.S. v. Palacios-Martinez, 845 F.2d 89 (5th Cir. 1988); U.S. v. Zaleta-Sosa, 854 F.2d
48, 51 (5th Cir. 1988); U.S. v. Holland, 876 F.2d 1533 (11th Cir. 1989). The REAL ID Act of 2005 may not
bar the court’s jurisdiction to hear a motion to dismiss the indictment under Mendoza-Lopez. U.S. v. Villa-
Melchor, 389 F.Supp.2d 755, 758 (W.D. Tex. 2005) [rejecting view that case had to be transferred to circuit
court under REAL ID Act]. A successful collateral attack does not necessarily invalidate the removal order.
U.S. v. Frutos-Lopez, 627 F.Supp.2d 1164 (C.D. Cal. 2008) [a successful challenge to an indictment for
unlawful entry resulting in the dismissal of the indictment under Mendoza-Lopez does not invalidate the
underlying removal order that was the basis for a subsequent “found-in” charge]. Conversely, the
invalidation of a removal order, where there is more than one removal order, may not result in the
dismissal of the indictment. U.S. v. Rojas-Pedroza, 716 F.3d 1253, 1261 (9th Cir. 2013) [indictment for
found in charge under 8 USC §1326(a) would not be dismissed even if one removal order is invalid where
the second removal order was not defective]. Page 386
11.b. General Criteria—Congress, in AEDPA, incorporated Mendoza-Lopez into 8 USC §1326(d). The
statute prevents a collateral attack to the validity of the deportation order unless the defendant (1)
exhausted administrative remedies; (2) was deprived of judicial review; and (3) was ordered deported in a
fundamentally unfair removal (or deportation/exclusion) hearing. 8 USC §1326(d). It applies to criminal
proceedings initiated after Apr. 24, 1996.
11.c. Exhaustion of Administrative Remedies under §1326(d)(1)—Failure to exhaust administrative remedies

has been used to deny a collateral challenge. U.S. v. Gil-Lopez, 825 F.3d 819 (7th Cir. 2016) [knowingly
waived appeal] U.S. v. Tamayo-Baez, 820 F.3d 308, 313-14 (8th Cir. 2016) [same]; U.S. v. Soto-Mateo,
799 F.3d 117 (1st Cir. 2015) [same]; U.S. v. Alegria-Saldana, 750 F.3d 638 (7th Cir. 2014) [failure to
appeal to BIA or seek habeas where convictions were not aggravated felonies barring relief]; U.S. v.
Villavicencio-Burruel, 608 F.3d 556, 559-60 (9th Cir. 2010) [failed to appeal to BIA and no waiver of
appeal]; U.S. v. Artia-Campos, 607 F.3d 487, 491-92 (7th Cir. 2010) [defendant with in absentia order
failed to exhaust by failing to file motion to reopen]; U.S. v. DeLeon, 444 F.3d 41, 48–51 (1st Cir. 2006)
[where respondent hid his true identity from the IJ he could not argue that he did not knowingly and
intelligently give up his right to appeal where IJ failed to inform him of discretionary relief]; U.S. v. Chavez-
Alonso, 431 F.3d 726 (10th Cir. 2005) [failure to exhaust is not excused by IJ’s failure to inform defendant
of his right to apply for INA §212(c) relief]; U.S. v. Gonzalez, 429 F.3d 1252 (9th Cir. 2005) [failure to
appeal summary removal as an aggravated felon was a valid waiver as the bar to INA §212(h) relief under
8 USC §1228(b)(5), which barred all discretionary relief, could be retroactively applied]; U.S. v. Rodriguez,
420 F.3d 831, 834–35 (8th Cir. 2005) [IJ’s failure to inform respondent that drunk driving may not be an
aggravated felony did not make respondent’s decision not to appeal an involuntary or unknowing waiver];
U.S. v. Johnson, 391 F.3d 67, 73–74 (2d Cir. 2004) [rejected constitutional challenge to exhaustion
requirement]; U.S. v. Roque-Espinoza, 338 F.3d 724, 728–30 (7th Cir. 2003) [failure to appeal IJ denial of
INA §212(c) relief on futility grounds was insufficient to overcome exhaustion requirement]; U.S. v.
Gonzalez-Roque, 301 F.3d 39, 46–49 (2d Cir. 2002) [defendant failed to exhaust when he failed to raise
procedural due process issues and denial of continuance in his pro se BIA appeal]; U.S. v. Zelaya, 293
F.3d 1294 (11th Cir. 2002) [defendant failed to exhaust remedies when he failed to seek rescission of in
absentia order]; U.S. v. Hinojosa-Perez, 208 F.3d 832 (9th Cir. 2000) [defendant failed to exhaust by
failing to avail himself of a motion to reopen to challenge deportation order based upon defective notice];
U.S. v. Hernandez-Ochoa, 346 F.Supp.2d 380, 382–83 (D.R.I. 2004) [EOIR transcript indicating defendant
would appeal and defendant’s claim he did appeal without more is insufficient to show exhaustion]; U.S. v.
Ramos-Ramirez, 128 F.Supp.3d 896 (D. Md. 2015) [no waiver and no constitutional right implicated where
respondent was not informed of VD].
But see U.S. v. Valdivia-Flores, 876 F.3d 1201, 1205-06 (9th Cir. 2017) [in INA §238(b) proceeding
defendant did not knowingly and intelligently waive his right to appeal despite signing waiver form
because the form did not explicitly inform him that he could refute the legal conclusion that he was an
aggravated felon]; Garcia v. Lynch, 786 F.3d 789 (9th Cir. 2015) [waiver was not knowingly and intelligent
made where IJ gave incorrect advice that respondent committed an aggravated felony that barred relief];
U.S. v. Gomez, 757 F.3d 885, 893-98 (9th Cir. 2014) [involuntary waiver of appeal violated first two prongs
of 1326(d)]; U.S. v. Melendez-Castro, 671 F.3d 950 (9th Cir. 2012) [failure to apprise petitioner of
voluntary departure rendered removal proceeding unfair and case remanded for prejudice determination];
U.S. v. Ramos, 623 F.3d 672 (9th Cir. 2010) [defendant’s right to a removal proceeding and counsel were
not knowingly and intelligently waived by stipulated removal order and IJ’s failure to inquire violated 8
CFR §1003.25(b), but defendant was not prejudiced]; U.S. v. Camacho-Lopez, 450 F.3d 928 (9th Cir.
2006) [exhaustion not required where IJ erroneously advised defendant he was ineligible for relief and
was not removable as an aggravated felon]; U.S. v. Calderon, 391 F.3d 370, 374–75 (2d Cir. 2004) [where
IJ and respondent’s counsel told him he was ineligible for §212(c) relief his waiver of appeal to BIA was
not knowing and intelligently made]; U.S. v. Sosa, 387 F.3d 131, 136–37 (2d Cir. 2004) [failure to exhaust
“must be excused” where waiver of the right to appeal was not knowingly and intelligently made]; U.S. v.
Copeland, 376 F.3d 61, 66–67 (2d Cir. 2004) [filing motion to reopen and appealing it to BIA satisfied
exhaustion requirement]; U.S. v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) [where defendant’s waiver
of right to Page 387 appeal was not considered and intelligent because he was not advised of relief, the
first 2 requirements of §1326(d) are met]; U.S. v. Zelaya, 293 F.3d 1294 (11th Cir. 2002);U.S. v. Gonzalez-
Roque, 301 F.3d 39, 46–49 (2d Cir. 2002); U.S. v. Miranda-Rivera, 206 F.Supp.3d 1066, 1070-71 (D. Md.
2016) [no intelligent waiver where applicant was never informed of his right to seek asylum or withholding
pursuant to 8 CFR §1240.11(a)(2), (c)(1)]; U.S. v. Merino-Hernandez, 46 F.Supp.3d 602, 607-08 (D. Md.
2014) [in INA §238 proceeding, the respondent did not knowingly and intelligently waive his rights where
the Notice of Intent was not fully translated to him]; U.S. v. Munoz-Giron, 943 F.Supp.2d 613, 620-21 (E.D.
Va. 2013) [because in absentia hearing was improperly held as defendant was in immigration custody
under a detainer at the time, his failure to exhaust remedies was excused as unknowing and involuntary
due to IJ’s failure to provide information]; U.S. v. Boliero, 923 F.Supp.2d 319, 326-36 (D. Mass. 2013)
[failure to properly inform defendant of appeal during removal proceeding and lawyer’s ineffective
assistance in motion to reopen were sufficient to satisfy exhaustion requirement; Pena-
Murieldistinguished]; U.S. v. Peters, 751 F.Supp.2d 404, 408-10 (E.D.N.Y. 2010) [excused failure to
exhaust where defendant was not given written IJ decision and notice of appeal and therefore did not
knowingly and intelligently waive his appeal]; U.S. v. Clinton, 653 F.Supp.2d 446, 449–50 (S.D.N.Y. 2009)
[failure to file motion to reopen under INA §212(c) regulations did not constitute failure to exhaust
remedies where defendant did not know about regulations and had affirmatively been misled into
believing he had no relief].
11.d. Denial of Judicial Review—8 USC §1326(d)(2). Generally, when an applicant has been deprived of his
right to appeal to the BIA he is also deprived of his right to judicial review because an applicant who fails
to exhaust his administrative remedies will be foreclosed from judicial review. U.S. v. Gonzalez-Villalobos,
724 F.3d 1125, 1130-31 (9th Cir. 2013) [three usual grounds for meeting the two categories—IJ’s failure to
inform person of right to appeal, IJ’s failure to inform applicant of relief; and lack of intelligent and
considered waiver—were not present here and denial affirmed]; U.S. v. Gill, 748 F.3d 491, 504-06 (2d Cir.
2014) [followed U.S. v. Lopez but remanded because district court made no finding analyzing whether
seeking habeas review was a realistic possibility]; U.S. v. Charleswell, 456 F.3d 347, 354–63 (3d Cir.
2006) [upholding collateral attack on reinstatement order under INA §241(a)(5) because defendant was
deprived of judicial review by not being informed of it and receiving a notice that mislead him as to his
rights and because his hearing was fundamentally unfair]; U.S. v. Lopez, 445 F.3d 90 (2d Cir. 2006)
[following Copeland, Sosa and Calderon;although the IJ/BIA had no obligation to inform the defendant of
habeas relief, their statements that no relief was available deterred him from seeking judicial review]; U.S.
v. Calderon, 391 F.3d 370, 374–76 (2d Cir. 2004) [where IJ and respondent’s counsel told him he was
ineligible for §212(c) relief, his waiver of appeal was not knowing and intelligent and he was deprived of
judicial review]; U.S. v. Sosa, 387 F.3d 131, 137–38 (2d Cir. 2004) [respondent did not have a realistic
possibility of judicial review through habeas because there was less than one month between entry of final
order and physical deportation and he could not learn INA §212(c) relief pro se during that time given its
complexity when he was not informed of it by IJ]; U.S. v. Copeland, 376 F.3d 61, 67–70 (2d Cir. 2004)
[where defendant had no realistic opportunity for habeas because he was deported quickly and because
of the legal uncertainty as to the availability of habeas, he was denied judicial review]; U.S. v. Garcia-
Morales, 150 F.Supp.3d 1201 (S.D. Cal. 2015) [ineffective assistance of counsel in failing to file appeal to
9th circuit where they could have raised issues about the BIA’s standard of review stated “plausible claim
for relief” and reentry charge was dismissed]; U.S. v. Munoz-Giron, 943 F.Supp.2d 613, 621-22 (E.D. Va.
2013) [where pro se alien was not informed of his right to judicial review and then swiftly removed from
the country before his rights expired, he was denied review]. A collateral attack based on lack of judicial
review may also arise in other contexts. See e.g., U.S. v. Charleswell, 456 F.3d 347, 354–63 (3d Cir.
2006) [where DHS provided a misleading notice to defendant in his reinstatement proceeding under INA
§241(a)(5) that did not inform him of his right to a federal appeal, he was deprived of judicial review]; U.S.
v. Moncrieffe, 167 F.Supp.3d 383, 398-99 (E.D.N.Y. 2016) [where applicant repeatedly mistakenly told by
IJ and BIA that he had no further relief, including INA §212(c), he is not barred from collateral review];
U.S. v. Peters, 751 F.Supp.2d 404, 410-12 (E.D.N.Y. 2010) [counsel’s failure to timely file 212(c)
application deprived defendant of judicial review]. Page 388
But see U.S. v. Watkins, 880 F.3d 1221, 1226-27 (11th Cir. 2018) [given the right to exceed the 90-day
period for reopening on grounds of equitable tolling, where defendant sought to reopen on such grounds
due to a change in the law but waited three years after the Supreme Court’s helpful decision, the court
found she was not deprived of judicial review when the BIA denied it and she did not appeal]; U.S. v.
Zambrano-Reyes, 724 F.3d 761, 764-65 (7th Cir. 2013) [failure of lawyer to file petition for review was
error in light of prior helpful circuit decision suggesting AEDPA could not be applied retroactively but
ineffective assistance was not raised]; U.S. v. Adame-Orozco, 607 F.3d 647 (10th Cir. 2010) [failure to
grant respondent a continuance to collaterally challenge his conviction does not affect judicial review];
U.S. v. Rodriguez, 420 F.3d 831 (8th Cir. 2005) [where IJ pre-Leocal, informed respondent that the BIA
would likely consider drunk driving an aggravated felony and respondent waived his appeal, the court
rebuffed a challenge to the waiver because respondent’s complaint is only that the IJ did not adequately
inform him of a future change in the interpretation of the law]; U.S. v. Rivera-Nevarez, 418 F.3d 1104,
1107–11 (10th Cir. 2005) [although Leocal applied retroactively to render prior removal order invalid,
defendant’s failure to appeal barred challenge]; U.S. v. Mendez-Morales, 384 F.3d 927, 929–30 (8th Cir.
2004) [statutory preclusion preventing judicial review of AOS because respondent was an aggravated
felon does not automatically bar an illegal reentry prosecution where there is no due process deprivation
and where habeas jurisdiction was available]; U.S. v. Sammy, 186 F.Supp.3d 241, 246-47 (E.D.N.Y. 2016)
[where there was substantial time between deportation order and physical removal judicial review was
available]; U.S. v. Vargas, 479 F.Supp.2d 252, 254 (D.R.I. 2007) [where defendant claims lawyer
improperly withdrew appeal, it is insufficient to make a claim because nothing at removal hearing deprived
him of opportunity for judicial review].
11.e. Fundamentally Unfair Proceeding Where Defendant Was Prejudiced
(1) In General—Generally, a defendant under §1326(d)(3) must show that proceeding was fundamentally
unfair and that respondent was prejudiced in the proceeding. See e.g., U.S. v. Cisneros-Rodriguez,
813 F.3d 748 (9th Cir. 2015) [in INA §238 proceeding, where defendant with aggravated felony
conviction was facially eligible for a U visa, she was deprived of due process and prejudiced when ICE
agent told her that an attorney would not be able to help her]; U.S. v. Raya-Vaca, 771 F.3d 1195, 1202-
06 (9th Cir. 2014) [defendant’s expedited removal proceeding was a violation of due process because
he was apprehended after entry (within 100 miles of the border) and was never give notice and an
opportunity to respond to the charges as provided in 8 CFR §235.3(b)(2)(i)]; U.S. v. Aguilera-Rios, 769
F.3d 626, 631-33 (9th Cir. 2014) [proceeding was fundamentally unfair because person deported
based upon a definition of an aggravated felony that was subsequently rejected and new legal
authority could be retroactively applied]; U.S. v. Charleswell, 456 F.3d 347, 354–63 (3d Cir. 2006)
[where DHS provided a misleading notice to defendant in his reinstatement proceeding under INA
§241(a)(5) that did not inform him of his right to a federal appeal, he was deprived of a fundamentally
fair hearing and case was remanded to determine prejudice]. But there is a split in the circuits whether
the failure to inform a respondent in a removal proceedings of eligibility for or actual consideration for
discretionary relief amounts to a violation of due process and thus resulting in a fundamentally unfair
proceeding. U.S. v. Estrada, 876 F.3d 885 (6th Cir. 2017) [cataloging split in the circuits and finding
lawyer’s (or the IJ’s) failure to inform a respondent of INA §212(h) relief is not a violation of due
process]. The defendant has the burden to prove prejudice and cannot shift it to the government. U.S.
v. Bustos-Ochoa, 704 F.3d 1053, 1056-57 (9th Cir. 2012) [defendant’s claim that government did not
provide conclusive evidence at the IJ hearing that he was an aggravated felon ineligible for VD
impermissibly shifts the burden of proving prejudice]. Where the federal court interprets the law, its
decisions are presumptively retroactive and therefore deportation based upon a now invalid ground
may be considered fundamentally unfair because the defendant was deported based on a legal error.
See e.g., U.S. v. Tavizon-Ruiz, 196 F.Supp.3d 1076 (N.D. Cal. 2016) [district court dismissed an
indictment for illegal reentry where defendant was deportable as an aggravated felony but Arizona
Rev. Statutes §13-3408 was declared subsequently not to be an aggravated felony pursuant to Vera-
Valdevinos v. Lynch, 649 F.App’x 597 (9th Cir. 2016) because the Arizona statute regulates
substances not listed on the Federal Controlled Substance Schedule] Page 389
(2) The Standard for Prejudice—The circuits have varying standards to determine whether a person was
prejudiced by errors committed during removal proceedings. Compare U.S. v. Charleswell, 456 F.3d
347, 361–62 (3d Cir. 2006) [agreeing with majority of circuits that the standard for prejudice is a
“reasonable likelihood that the result would have been different”]; U.S. v. El Shami, 434 F.3d 659, 664–
66 (4th Cir. 2005) [applying a reasonable probability that respondent would have been granted INA
§212(c) relief and not deported]; U.S. v. Copeland, 376 F.3d 61, 73–74 (2d Cir. 2004) [applying the
“reasonable probability” standard as in ineffective assistance of counsel claims]; U.S. v. Aguirre-Tello,
353 F.3d 1199, 1207–08 (10th Cir. 2004) (en banc) [applying “reasonable likelihood” standard to
determine whether the defendant would have obtained relief or the outcome of the proceedings would
have been different] and U.S. v. Encarnacion-Galvez, 964 F.2d 402, 407 (5th Cir. 1992) [must show
that “but for” the errors complained of he would not have been deported], with U.S. v. Garcia-Martinez,
228 F.3d 956, 963 (9th Cir. 2000) [must only show plausible grounds for relief to establish prejudice];
U.S. v. Melendez-Castro, 671 F.3d 950, 955 (9th Cir. 2012) [same]; U.S. v. Lopez-Chavez, 757 F.3d
1033, 1043-44 (9th Cir. 2014) [performance of counsel “may have affected the outcome of
proceedings”]; U.S. v. Valdez-Novoa, 780 F.3d 906, 914-17 (9th Cir. 2015) [defendant must make
prima facie case of prejudice before burden shifts to government]. The prejudice inquiry may not
extend beyond the fairness of the removal order itself and may not encompass events subsequent to
the order to find no prejudice U.S. v. Scott, 394 F.3d 111, 118–19 (2d Cir. 2005) [reversing decision to
deny dismissal of indictment where the district judge held there was no prejudice on theory that
§212(c) relief would have been lost based upon a conviction subsequent to the deportation order], but
see U.S. v. Daley, 702 F.3d 96 (2d Cir. 2012) [limiting Scott to future criminal conduct]. At least one
court has determined, in the context of INA §212(c) relief, that the “reasonable probability” standard
required the applicant to show a 20% chance of prevailing on the claim. U.S. v. Copeland, 369
F.Supp.2d 275, 285–88 (E.D.N.Y. 2005) [applying 20% rule but determining that defendant would not
have been granted §212(c) relief, therefore no prejudice]. See also U.S. v. Peters, 751 F.Supp.2d 404,
412-16 (E.D.N.Y. 2010) [defendant made “strong showing” that 212(c) relief would have been granted].
At least one circuit has held that to determine prejudice, courts should look to whether noncitizens with
similar circumstances received relief. U.S. v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013).
Where the transcript of the removal proceeding is unavailable, the defendant still has the burden of
overcoming the presumption that his deportation proceeding was conducted in a valid manner. U.S. v.
Arevalo-Tavares, 210 F.3d 1198 (10th Cir. 2000). U.S. v. Interian-Mata, 363 F.Supp.2d 1246 (S.D. Cal.
2005)[where respondent who was deprived of INA §212(c) hearing would not have won his case on
the merits, a motion to suppress was denied]. At times, failure to provide counsel may be prejudice per
se. U.S. v. Reyes-Bonilla, 671 F.3d 1036, 1046-55 (9th Cir. 2012) [failure to provide notice of the right
to counsel was not, under the circumstances, prejudice per se and petitioner failed to establish actual
prejudice in being denied CAT claim]. The failure to inform a respondent of apparent eligibility for relief
under 8 CFR §1240.11(a)(2) when the law at the time did not provide for the relief may not be
prejudicial. U.S. v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013) [failure to inform respondent of VD
when his conviction at the time was considered an aggravated felony was not prejudicial]. But see U.S.
v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003) [where subsequent precedent renders a deportation order
invalid prejudice found].
(3) Prejudice Found—U.S. v. Raya-Vaca, 771 F.3d 1195, 1206-11 (9th Cir. 2014) [defendant was
prejudiced in expedited removal proceeding because she was not given opportunity to withdraw his
application for admission]; U.S. v. Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006) [prejudice
demonstrated when respondent was deported based on erroneous legal determination]; U.S. v. El
Shami, 434 F.3d 659, 664–66 (4th Cir. 2005) [government’s failure to provide notice of deportation
proceeding prejudiced respondent because there was a reasonable probability he would have been
granted INA §212(c) relief]; U.S. v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. 2004) [conviction for illegal
reentry reversed where IJ’s failure to advise defendant that he could get VD was prejudicial]; U.S. v.
Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) [where IJ erroneously advised defendant that he was an
aggravated felon and not eligible for cancellation, defendant was prejudiced]; U.S. v. Ubaldo-Figueroa,
364 F.3d 1042 (9th Cir. 2004) [defendant prejudiced where his attorney said he would accept order as
final Page 390 but defendant did not intelligently or knowingly waive appeal; defendant was prejudiced
because he had a plausible due process claim regarding the retroactivity of the aggravated felony
definition and he had a right to apply for former INA §212(c) relief]; U.S. v. Moncrieffe, 167 F.Supp.3d
383, 398-99 (E.D.N.Y. 2016) [defendant was prejudiced by findings that he was deportable as
aggravated felon and under §237(a)(2)(C) “based on a misapplication of the required categorical
approach’]; U.S. v. Garcia-Morales, 150 F.Supp.3d 1201 (S.D. Cal. 2015) [ineffective assistance of
counsel in failing to file appeal to 9th circuit where they could have raised issues about the BIA’s
standard of review stated “plausible claim for relief” and reentry charge was dismissed]; U.S. v.
Maldonado, 33 F.Supp.3d 1178, 1185-90 (S.D. Cal. 2014) [under “apparent eligibility” doctrine
defendant was never informed of his right to apply for suspension of deportation]; U.S. v. Munoz-Giron,
943 F.Supp.2d 613, 622-34 (E.D. Va. 2013) [hearing held in absentia that deprived applicant of
cancellation was fundamentally unfair because it was at least reasonably probable that he would have
been granted relief]; U.S. v. Tenn, 888 F.Supp.2d 213 (D. Conn. 2012) [failure of counsel to advise and
pursue INA §212(c) relief was prejudicial, but failure to request VD does not constitute ineffective
assistance]; U.S. v. Modica-Linos, 399 F.Supp.2d 1114 (E.D. Wash. 2005) [IJ’s statement that
defendant was not eligible for §212(c) relief was erroneous, and defendant was therefore prejudiced].
(4) No Prejudice Found—U.S. v. Moreno-Tapia, 848 F.3d 162, 168-72 (4th Cir. 2017) [there was no
prejudice because the defendant was deported prior to Padilla and under Chaidez ineffective
assistance of counsel to inform of the immigration consequences does not apply retroactively despite
defendant’s vacatur in the case]; U.S. v. Larios-Buentello, 807 F.3d 176 (7th Cir. 2015) [failure by IJ to
notify respondent of possible availability of 212(c) relief did not deprive him of right to appeal, judicial
review, or a fundamentally fair hearing where the S.Ct.’s decision in St. Cyr was several years away,
he was told he could file an appeal, and IJ did not have obligation to inform him of retroactivity
argument that the agency did not believe existed]; U.S. v. Cordova-Soto, 804 F.3d 714 (5th Cir. 2015)
[despite IJ’s failure to make a finding of voluntariness pursuant to 8 CFR §1003.25(b), respondent did
not unknowingly or involuntarily waiver her right to a hearing where she spoke English fluently, lived in
U.S. virtually her whole life, and was provided a list of free legal services]; U.S. v. Garcia-Gonzalez,
791 F.3d 1175, 1179-82 (9th Cir. 2015) [despite failure of government to comply with expedited
removal regulations resulting in a due process violation, there was no showing of prejudice and
government was not obligated to produce statistics as to whether persons committing fraud were
allowed to withdraw their applications for admission]; U.S. v. Gonzalez-Flores, 804 F.3d 921, 926-29
(9th Cir. 2015) [where IJ told respondent he was eligible for VD but that he would not grant it, he was
not prejudiced where it was not plausible he would receive it]; U.S. v. Zamudio, 787 F.3d 961, 965-68
(9th Cir. 2015) [defendant not subject to ineffective assistance of counsel where counsel failed to
anticipate arguments that were not the law at the time]; U.S. v. Valdez-Novoa, 780 F.3d 906, 912-21
(9th Cir. 2015) [defendant not prejudiced under “apparent eligibility” doctrine]; U.S. v. Baptist, 759 F.3d
690 (7th Cir. 2014) [respondent knowingly waived right to removal hearing in signing stipulated
removal and the law in effect at the time barred relief as an aggravated felon]; U.S. v. Hernandez-
Arias, 757 F.3d 874, 879-83 (9th Cir. 2014) [defendant was removable as charged where he was
charged with not having made a lawful entry after losing his temporary residence status]; U.S. v.
Rojas-Pedroza, 716 F.3d 1253, 1262-67 (9th Cir. 2013) [although IJ failed to notify respondent of his
“apparent eligibility” for VD, he was not prejudiced because he did not establish plausible grounds for
prehearing VD]; U.S. v. Daley, 702 F.3d 96 (2d Cir. 2012) [finding no prejudice where cancellation
would not have been granted]; U.S. v. Cisneros-Resendiz, 656 F.3d 1015 (9th Cir. 2011) [it was not
fundamentally unfair where IJ failed to inform respondent of possibility of withdrawing his application
for admission because it is not plausible that IJ would have granted such permission]; U.S. v.
Villanueva-Diaz, 634 F.3d 844 (5th Cir. 2011) [it was not fundamentally unfair for BIA to send decision
to counsel where regulation called for it and the prejudice that arose from counsel’s failure to notify his
client was speculative]; U.S. v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (en banc) [where
applicant was not eligible for INA §212(c) relief at the time of his deportation proceeding and would not
be eligible for 8 Page 391 months due to a change in the law, the IJ did not err under “apparent
eligibility” in failing to inform him]; U.S. v. Ramos, 623 F.3d 672 (9th Cir. 2010) [defendant’s right to a
removal proceeding and counsel were not knowingly and intelligently waived by stipulated removal
order and IJ’s failure to inquire violated 8 CFR §1003.25(b), but defendant was not prejudiced because
had no relief]; U.S. v. Artia-Campos, 607 F.3d 487, 493 (7th Cir. 2010) [failure to inform defendant of
VD is not a due process violation because there is no due process right to be informed of discretionary
relief]; U.S. v. Moriel-Luna, 585 F.3d 1191, 1196–99 (9th Cir. 2009) [failure to inform applicant that he
could have married his undisclosed fiancée or that his parents could naturalize thus making him
eligible to AOS does not violate the regulation on apparent eligibility]; U.S. v. Becerril-Lopez, 541 F.3d
881, 886 (9th Cir. 2008) [economic hardship alone is insufficient to show prejudice regarding denial of
INA §212(h)]; U.S. v. Luna, 436 F.3d 312 (1st Cir. 2006) [where IJ failed to inform respondent about
§212(c) relief, there was no prejudice because facts indicate respondent would not have obtained
relief]; U.S. v. Jimenez-Borja, 378 F.3d 853, 859 (9th Cir. 2004) [failure of IJ to advise respondent of
INA §212(h) relief violated due process, but he failed to show prejudice because he could not
demonstrate extreme hardship to a qualifying relative]; U.S. v. Mendoza-Mata, 322 F.3d 829 (5th Cir.
2003) [where defendant was deprived of his right to seek INA §212(c) relief, he was not prejudiced
because he could not show a reasonable likelihood he would get relief given his criminal record]; U.S.
v. Gonzalez-Valerio, 342 F.3d 1051, 1054–56 (9th Cir. 2003) [no prejudice in failing to inform
respondent of his right to INA §212(c) relief where his second conviction was a post-IIRIRA aggravated
felony]; U.S. v. Fernandez-Antonia, 278 F.3d 150, 157–61 (2d Cir. 2002) [although IJ failed to instruct
respondent on INA §212(h) relief, no showing of prejudice]; U.S. v. Medina, 236 F.3d 1028 (9th Cir.
2001) [where transcript of hearing was blank, conviction upheld because unfairness of hearing is not
an element; government must only prove prior deportation, and burden is on defendant to demonstrate
prejudice]; U.S. v. Muro-Inclan, 249 F.3d 1180 (9th Cir. 2001) [although IJ never disclosed 212(h)
eligibility, facts did not demonstrate prejudice]; U.S. v. Perez-Ponce, 62 F.3d 1120 (8th Cir. 1995)
[reversing vacation of conviction because, notwithstanding IJ errors, there was no showing of
prejudice]; U.S. v. Espinoza-Farlo, 34 F.3d 469 (7th Cir. 1994); U.S. v. Meraz-Valeta, 26 F.3d 992, 998
(10th Cir. 1994); U.S. v. Fares, 978 F.2d 52 (2d Cir. 1992); U.S. v. Proa-Tovar, 975 F.2d 592 (9th Cir.
1992) (en banc); U.S. v. Encarnacion-Galvez, 964 F.2d 402, 407 (5th Cir. 1992) [defendant must show
that but for the errors, he would not have been deported]; U.S. v. Lopez, 84 F.Supp.3d 482, 486-88
(W.D.N.C. 2015) [IJ made findings pursuant to 8 CFR §1003.25(b) that respondent knowingly,
voluntarily and intentionally waived his right to a hearing]; U.S. v. Rodriguez-Vasquez, 4 F.Supp.3d
1146 (N.D. Cal. 2013) [no prejudice where defendant had weak CAT claim from Honduras]; U.S. v.
Gomez-Hernandez, 777 F.Supp.2d 464, 473-75 (E.D.N.Y. 2011) [no prejudice because would not have
succeeded on 212(c) claim]; U.S. v. Murguia-Marquez, 700 F.Supp.2d 1248 (S.D. Cal. 2010) [failure to
inform respondent of prehearing VD did not render hearing fundamentally unfair where IJ denied
cancellation under virtually same criteria]; U.S. v. Soto-Castelo, 621 F.Supp.2d 1062, 1072–73 (D. Nev.
2008) [IJ violated regulation and due process in accepting stipulated removal order but no prejudice
because defendant was ineligible for VD as an aggravated felon].
11.f. Relief Granted—The courts have invalidated convictions or granted motions to dismiss pursuant to
Mendoza-Lopez and §1326(d):
First Circuit—U.S. v. Diaz-Nin, 221 F.Supp.2d 584 (D.V.I. 2002) [dismissing indictment where person
deprived of INA §212(c) relief and judicial review barred because government’s position was that there
was no review in habeas or on appeal pre–St. Cyr].
Second Circuit—U.S. v. Scott, 394 F.3d 111 (2d Cir. 2005) [following U.S. v. Perez and concluding that
failure to seek §212(c) relief was a fundamental procedural error that was prejudicial]; U.S. v. Calderon,
391 F.3d 370 (2d Cir. 2004)[following Sosa and Copeland and affirming dismissal of indictment where
respondent was informed by both IJ and his counsel that §212(c) relief was not available]; U.S. v. Sosa,
387 F.3d 131 (2d Cir. 2004) [reversing conviction where IJ failed to inform defendant of INA §212(c) relief,
defendant did not knowingly and intelligently waive appeal, there was no realistic opportunity for judicial
review, and the procedural failure to inform defendant demonstrated that case was fundamentally unfair;
Page 392 case remanded for hearing on prejudice]; U.S. v. Copeland, 376 F.3d 61 (2d Cir. 2004) [failure
to inform respondent of INA §212(c) relief was fundamentally unfair; case remanded on issue of
prejudice]; U.S. v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002)distinguished]; U.S. v. Perez, 330 F.3d 97
(2d Cir. 2003) [indictment dismissed where lawyer failed to seek INA §212(c) relief and respondent only
exhausted administrative remedies as to denial of motion to reopen]; U.S. v. Phillips, 120 F.Supp.3d 263
(E.D.N.Y. 2015) [failure to inform respondent of 212(c) relief following Copeland]; U.S. v. Duncan, 396
F.Supp.2d 210 (D. Conn. 2005) [where respondent raised a derivative citizenship claim, he is entitled to
evidentiary hearing before removal can be used as basis for criminal proceeding]; U.S. v. Garcia-Jurado,
281 F.Supp.2d 498 (E.D.N.Y. 2003) [LPR deprived of fair hearing where he was denied INA §212(c)
hearing due to improper interpretation and then deported before BIA could rule on pending motion to
reconsider]; U.S. v. Frias-Gomez, 262 F.Supp.2d 11 (E.D.N.Y. 2003) [dismissing indictment where person
improperly denied the opportunity to seek INA §212(c) relief and he was deported before he could contest
the decision]; U.S. v. Moncrieffe, 167 F.Supp.3d 383, 398-99 (E.D.N.Y. 2016) [defendant was prejudiced
by findings that he was deportable as aggravated felon and under §237(a)(2)(C) “based on a
misapplication of the required categorical approach]; U.S. v. Brown, 148 F.Supp.2d 191 (E.D.N.Y. 2001)
[where person was extradited to U.S., failure to give him an opportunity to depart under the Badalamenti
decision interpreting the former INA provision was fundamentally unfair].
Fourth Circuit—U.S. v. El Shami, 434 F.3d 659, 664–66 (4th Cir. 2005) [government’s failure to provide
notice of deportation proceeding prejudiced respondent because there was a reasonable probability he
would have been granted INA §212(c) relief]; U.S. v. Itehua, No. 3:17-cr-119, 2018 WL 1470250 (E.D. Va.
Mar. 26, 2018) [all three §1326(d) requirements satisfied where IJ asked if respondent had travel funds
but did not explain right to apply for VD]; U.S. v. Miranda-Rivera, 206 F.Supp.3d 1066, 1070-71 (D. Md.
2016) [waiver not intelligently made where applicant was never informed of his right to seek asylum or
withholding pursuant to 8 CFR §1240.11(a)(2), (c)(1)].
Fifth Circuit—U.S. v. Campos-Asencio, 822 F.2d 506 (5th Cir. 1987) [following Mendoza-Lopez,
reversing conviction where alien raised denial of counsel claim in deportation hearing]; U.S. v. Ojeda-
Escobar, 218 F.Supp.2d 839 (W.D. Tex. 2002) [motion granted where defendant was removed prior to St.
Cyr and therefore denied INA §212(c) relief]; U.S. v. Girosky-Garibay, 176 F.Supp.2d 705 (W.D. Tex.
2001) [dismissing indictment where removal proceeding was fundamentally unfair because it was based
on erroneous interpretation of law that felony DWI was an aggravated felony barring relief]; U.S. v.
Montano-Bentancourt, 151 F.Supp.2d 794 (W.D. Tex. 2001) [where OSC was sent to wrong address and
defendant deported in in absentia hearing was fundamentally unfair].
Eighth Circuit—U.S. v. Santos-Vanegas, 878 F.2d 247 (8th Cir. 1989) [where deportation notice did not
indicate respondent could appeal BIA’s decision and where incorrect standard was used to evaluate
asylum claim, conviction reversed].
Ninth Circuit—U.S. v. Ochoa, 861 F.3d 1010 (9th Cir. 2017) [where conviction for conspiracy to export
defense articles in violation of 22 USC §2778(a) was not an aggravated felony or a firearms offense
based upon new legal principles retroactively applied to his case, respondent defendant’s conviction was
reversed and indictment dismissed]; U.S. v. Guzman-Ibarez, 792 F.3d 1094, 1099-1100 (9th Cir. 2015)
[conviction vacated where IJ failed to advise respondent of §212(c) relief]; U.S. v. Raya-Vaca, 771 F.3d
1195, 1202-06 (9th Cir. 2014) [defendant’s expedited removal proceeding was a violation of due process
because he was apprehended after entry (within 100 miles of the border) and was never given notice and
an opportunity to respond to the charges as provided in 8 CFR §235.3(b)(2)(i)]; U.S. v. Aguilera-Rios, 769
F.3d 626, 631-33 (9th Cir. 2014) [proceeding was fundamentally unfair because person deported based
upon a definition of an aggravated felony that was subsequently rejected and new legal authority could be
retroactively applied]; U.S. v. Lopez-Chavez, 757 F.3d 1033 (9th Cir. 2014) [where lawyer conceded
deportability as an aggravated felon when it was an open legal question and failed to appeal issue to BIA
and Seventh Circuit client was deprived of due process]; U.S. v. Camacho-Lopez, 450 F.3d 928 (9th Cir.
2006) [reversing district court where IJ erroneously advised defendant he was ineligible for relief and
defendant was not removable for aggravated Page 393 felony as charged]; U.S. v. Ortega-Ascanio, 376
F.3d 879 (9th Cir. 2004) [permitting withdrawal of plea before sentencing where defendant argued that
intervening St. Cyr decision was basis to dismiss indictment because IJ failed to inform him of INA
§212(c) relief even though he informed him of cancellation but only if he did not commit aggravated
felony]; U.S. v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) [where IJ erroneously advised defendant
that he was an aggravated felon and not eligible for cancellation, defendant was prejudiced and did not
validly waive his right to appeal]; U.S. v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) [defendant
prejudiced where his attorney said he would accept order as final but defendant did not intelligently or
knowingly waive appeal; defendant was prejudiced because he had a plausible due process claim
regarding retroactivity of the aggravated felony definition and he had a right to apply for INA §212(c)
relief]; U.S. v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003) [where IJ erroneously told respondent he was
ineligible for relief when he was eligible for INA §212(c) relief, his conviction was vacated]; U.S. v.
Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002) [conviction reversed where IJ deprived person of right to
counsel in group hearing, where the waiver of appeal was not knowing and intelligent and where he was
prejudiced]; U.S. v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) [defendant’s mass deportation hearing where IJ
failed to inform him of INA §212(h) waiver resulted in prejudice]; U.S. v. Calles-Pineda, 627 F.2d 976 (9th
Cir. 1980) [mass deportation hearing was denial of due process]; U.S. v. Garcia-Morales, 150 F.Supp.3d
1201 (S.D. Cal. 2015) [ineffective assistance of counsel in failing to file appeal to 9th circuit where they
could have raised issues about the BIA’s standard of review stated “plausible claim for relief” and reentry
charge was dismissed]; U.S. v. Reyes, 907 F.Supp.2d 1068 (N.D. Cal. 2012) [defendant had been
improperly placed in administrative removal when he was not an aggravated felon thereby deprived of VD
and other relief]; U.S. v. Uribe-Sanchez, 758 F.Supp.2d 1102 (S.D. Cal. 2010) [defendant was deported as
an aggravated felon when he was not under controlling law and therefore was eligible for INA §212(c)
relief]; U.S. v. Lopez-Menera, 542 F.Supp.2d 1025 (N.D. Cal. 2008) [IJ failure to inform respondent of right
to seek VD deprived him of right to appeal and was prejudicial].
11.g. Relief Denied—More often than not in published cases, the courts have denied claims under
Mendoza-Lopez and §1326(d).
First Circuit—U.S. v. DeLeon, 444 F.3d 41, 48–51 (1st Cir. 2006) [where respondent hid his true identity
from the IJ he could not argue that he did not knowingly and intelligently waive appeal because IJ failed to
inform him of discretionary relief]; U.S. v. Vieira-Candelario, 6 F.3d 12 (1st Cir. 1993) [where defendant
was improperly denied right to seek INA §212(c) relief, filed appeal and later withdrew it, he was not
denied judicial review].
Second Circuit—U.S. v. Gonzalez-Roque, 301 F.3d 39 (2d Cir. 2002) [where IJ denied 4th continuance
to permit respondent to file I-130 petition and respondent did not raise issue in pro se appeal, he failed to
exhaust under §1326(d)(1); due process was also not violated]; U.S. v. Manragh, 428 F.Supp.2d 130
(E.D.N.Y. 2006) [failure of appellate lawyer to file BIA brief did not prejudice defendant because there was
no reasonable probability that he would have avoided deportation]; U.S. v. Cottone, 244 F.Supp.2d 126
(E.D.N.Y. 2003) [IJ’s erroneous claim that INA §212(c) relief was not available did not render proceeding
fundamentally unfair]; U.S. v. Bailey, 56 F.Supp.2d 381 (S.D.N.Y. 1999) [denying motion to dismiss where
attorney told client not to appear and his §212(c) application was deemed abandoned]; U.S. v. Jimenez,
921 F.Supp. 1054 (S.D.N.Y. 1995) [denying motion to dismiss even where waiver of right to hearing was
coerced by threat of detention where no showing of prejudice because defendant would have been
deported anyway].
Third Circuit—Richardson v. U.S., 558 F.3d 216 (3d Cir. 2009) [burden on defendant to establish that
written waiver of deportation was not voluntary and intelligent where he had counsel’s advice]; U.S. v.
Torres, 383 F.3d 92, 104–06 (3d Cir. 2004) [removal proceeding not fundamentally unfair where IJ did not
inform respondent of the right to seek §212(c) relief because relief was speculative and a matter of
“grace.” Greenholtz supported view that relief was speculative].
Fourth Circuit—U.S. v. Wilson, 316 F.3d 506, 510–11 (4th Cir. 2003) [proceeding not fundamentally
unfair where BIA denied INA §212(c) claim pre–St. Cyr because the failure of the BIA to consider a INA
§212(c) claim is not a due process violation as there is no liberty or property Page 394 interest in
discretionary relief]. U.S. v. Ramos-Ramirez, 128 F.Supp.3d 896 (D. Md. 2015) [no waiver and no
constitutional right implicated where respondent was not informed of VD].
Fifth Circuit—U.S. v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002) [failure to inform defendant of INA §212(c)
relief does not rise to the level of fundamental unfairness because §212(c) relief is not a liberty or property
interest warranting due process protection]; U.S. v. Asibor, 109 F.3d 1023, 1037–38 (5th Cir. 1997) [where
attorney conducted case telephonically and defendant never notified of right to contact consulate, hearing
was fundamentally fair]; U.S. v. Saucedo-Velasquez, 843 F.2d 832 (5th Cir. 1988) [conviction upheld
where defendant was an unrepresented minor at deportation hearing]; U.S. v. Lubo, 262 F.Supp.2d 727,
734 (W.D. Tex. 2003) [no fundamental error because there was no prejudice where IJ entered
reinstatement order denying withholding/CAT claim]; U.S. v. Hernandez-Rodriguez, 170 F.Supp.2d 700
(N.D. Tex. 2001) [motion to dismiss denied notwithstanding deportation because of incorrect retroactive
application denying INA §212(c) relief pre–St. Cyr].
Sixth Circuit—U.S. v. Martinez-Rocha, 337 F.3d 566 (6th Cir. 2003) [where respondent knowingly and
intelligently waived his right to contest deportation he failed to exhaust his remedies and is barred under
§1326(d)].
Seventh Circuit—U.S. v. De Horta Garcia, 519 F.3d 658 (7th Cir. 2008) [defendant pleaded guilty after
AEDPA and was barred from INA §212(c) relief]; U.S. v. Santiago-Ochoa, 447 F.3d 1015 (7th Cir. 2006)
[where prior removal order was administrative under INA §238(b), defendant did not satisfy any
requirements of 8 USC §1326(d)]; U.S. v. Adame-Salgado, 214 F.Supp.2d 853 (N.D. Ill. 2002) [failure to
advise of INA §212(c) relief is insufficient to dismiss indictment because there was no showing that right of
judicial review or due process was violated];
Ninth Circuit—U.S. v. Garcia-Gonzalez, 791 F.3d 1175, 1179-82 (9th Cir. 2015) [no showing of prejudice
because it was not plausible that defendant would have been allowed to withdraw his application for
admission]; U.S. v. Valdez-Novoa, 780 F.3d 906, 912-21 (9th Cir. 2015) [defendant not prejudiced under
“apparent eligibility” doctrine]; U.S. v. Ramos, 623 F.3d 672 (9th Cir. 2010) [defendant’s right to a removal
proceeding and counsel were not knowingly and intelligently waived by stipulated removal order and IJ’s
failure to inquire violated 8 CFR §1003.25(b), but defendant was not prejudiced because he had no relief];
U.S. v. Moriel-Luna, 585 F.3d 1191, 1196–99 (9th Cir. 2009) [failure to inform applicant that he could have
married his undisclosed fianc&eactute;e or that his parents could naturalize thus making him eligible to
AOS does not violate the apparent eligibility regulation]; U.S. v. Rivera-Sillas, 417 F.3d 1014, 1017–18
(9th Cir. 2005)[lack of counsel at deportation hearing does not violate Sixth Amendment]; U.S. v. Corrales-
Beltran, 192 F.3d 1311, 1317–19 (9th Cir. 1999) [failure to advise of right to appeal bond hearing where he
gave up underlying administrative appeal on the merits was not in violation of Mendoza-Lopez]; U.S. v.
Arce-Hernandez, 163 F.3d 559, 563–64 (9th Cir. 1998) [affirming district court’s determination of no
prejudice where person married to USC with USC children and was not informed of §212(h) waiver in
violation of IJ’sduty to do so]; U.S. v. Contreras, 63 F.3d 852, 856–57 (9th Cir. 1995) [refusing to vacate
even where there was telephonic mass hearing]; U.S. v. Chavez-Huerto, 972 F.2d 1087 (9th Cir. 1992)
[affirming conviction where defendant argued he did not knowingly waive appeal where he was not told of
the criminal bar to reentry by IJ]; U.S. v. Arroyo-Garcia, 746 F.Supp. 1039 (D. Nev. 1990) [motion to
dismiss denied where defendant was not informed of right to apply for registry, but the defect did not
effectively foreclose judicial review or render proceedings fundamentally unfair]; U.S. v. Arroyo-Garcia,
751 F.Supp. 172 (D. Nev. 1990) [same case].
Tenth Circuit—U.S. v. Aguirre-Tello, 353 F.3d 1199, 1204–05 (10th Cir. 2004) (en banc) [rejecting motion
to dismiss because there is no constitutional right to be informed of discretionary relief that might be
available and there was no prejudice]; U.S. v. Meraz-Valeta, 26 F.3d 992, 998 (10th Cir. 1994) [IJ’s failure
to consider improperly issued JRAD in drug case did not render hearing fundamentally unfair]; U.S. v.
Valdez, 917 F.2d 466 (10th Cir. 1990) [affirming conviction where applicant claimed he was not given
Miranda warnings before deportation hearing].
Eleventh Circuit—U.S. v. Holland, 876 F.2d 1533 (11th Cir. 1989) [denial of judicial review alone
insufficient; must show that specific error seriously prejudiced deportation hearing rendering the hearing
fundamentally unfair]. Page 395
11.h. Standard of Review—The collateral attack in these cases is a mixed question of law and fact and the
courts will review them de novo when they involve constitutional rights. U.S. v. Lopez-Vasquez, 1 F.3d 751
(9th Cir. 1993); U.S. v. Valdez, 917 F.2d 466, 468 (10th Cir. 1990). The burden of proof is on the alien, not
the government. U.S. v. Martinez-Amaya, 67 F.3d 678, 680–82 (8th Cir. 1995).
11.i. Right to Evidentiary Hearing—Court need not set an evidentiary hearing if there is no legal basis for the
motion. U.S. v. Santos-Pulido, 815 F.3d 443 (8th Cir. 2016) [where defendant’s argument was that she
was deprived of due process because immigration did not allow her to withdraw her application for
admission no factual record was needed because there was no legal basis for the claim].
11.j. Defenses—Neither Mendoza-Lopez nor §1326 bars a defendant from asserting that she is not an alien
notwithstanding the validity of the deportation order. U.S. v. Meza-Soria, 935 F.2d 166 (9th Cir. 1991)
[defendant could raise claim of USC without attacking previous order of deportation, because alienage is
a separate element of 8 USC §1326]. Nor is a person collaterally estopped from asserting she is citizen.
U.S. v. Ortiz-Lopez, 24 F.3d 53, 55–56 (9th Cir. 1994). However, the fact that a person legalized status
after the second entry is not a defense, in the view of at least one circuit. U.S. v. Ramos-Quirarte, 935
F.2d 162 (9th Cir. 1991) [rejecting defense that defendant became a SAW after his return to U.S.].
11.k. Can Attack Underlying Conviction—An applicant seeking relief can challenge whether or not the
conviction was for a deportable offense. U.S. v. Ochoa, 861 F.3d 1010 (9th Cir. 2017) [where conviction
for conspiracy to export defense articles in violation of 22 USC §2778(a) was not an aggravated felony or
a firearms offense respondent defendant’s conviction was reversed and indictment dismissed] Also, a
prior aggravated felony or other conviction may be challenged in a prosecution under 8 USC §1326 where
it is used to enhance the penalties under §1326(b)(2) solely on the ground that defendant was denied
counsel in the prior felony conviction. U.S. v. Delacruz-Soto, 414 F.3d 1158, 1164–67 (10th Cir. 2005). But
a challenge for purposes of 1326 does not necessarily invalidate the removal order. U.S. v. Frutos-Lopez,
627 F.Supp.2d 1164 (C.D. Cal. 2008) [a successful challenge to an indictment for unlawful entry resulting
in the dismissal of the indictment under Mendoza-Lopez does not invalidate the underlying removal order
which was the basis for a subsequent “found-in” charge]. Also, Congress has precluded collateral attack
of a summary exclusion order under INA §235(b)(1) and for purposes of the assessment of fines because
“no court shall have jurisdiction to hear claims collaterally attacking the validity of orders of exclusion,
special (i.e., summary) exclusion or deportation.” INA §235(c), 8 USC §1225(c). But see U.S. v. Barajas-
Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011) [holding that 8 USC §1225(b)(1)(D) is unconstitutional to
the extent it does not permit some meaningful review of the expedited removal proceeding for purposes of
a prosecution under 8 USC §1326]. IIRIRA also prohibited collateral attacks of summary exclusion orders
in criminal proceedings concerning unlawful entry (INA §275(c)) or unlawful reentry (INA §276). INA
§235(b)(1)(D). At least two circuits have found that the lack of judicial review is not fundamentally unfair.
U.S. v. Sanchez-Aguilar, 719 F.3d 1108 (9th Cir. 2013) [because arriving aliens are entitled only to
whatever process Congress provides, due process did not require agent to advise defendant that he could
apply for relief of withdrawal of application for admission]; U.S. v. Lopez-Vasquez, 227 F.3d 476, 483–85
(5th Cir. 2000) [summary removal is not fundamentally unfair and can be used as a basis for a prior
removal order because the due process rights of an alien seeking admission are left to Congress].
However, the general statutes prohibiting review of final orders under AEDPA of persons with convictions
cannot be used to bar review of the validity of the initial deportation order. U.S. v. Arce-Hernandez, 163
F.3d 559, 561–63 (9th Cir. 1998) [court not barred by AEDPA §440(a) from deciding validity of deportation
order in reentry case].
11.l. Mootness—Government appeal of a dismissal of indictment is not moot where the respondent was
removed from the U.S. after the indictment was dismissed. U.S. v. Gonzalez-Roque, 301 F.3d 39, 44–45
(2d Cir. 2002) [dismissal of indictment and defendant’s removal did not moot appeal because he would be
subject to arrest and imprisonment if he sought reentry].
11.m. Discovery—A defendant has a right to obtain a copy of his alien registration file in discovery to initiate
collateral challenge. U.S. v. Ponce-Covarrubias, 227 F.Supp.2d 931 (W.D. Tenn. 2002) Page 396
[defendant entitled to “A” file in discovery even if he failed to satisfy the exhaustion or the deprivation of
judicial review requirements under §1326(d)]. See also Dent v. Holder, 627 F.3d 365, 371-76 (9th Cir.
2010) [person in removal proceedings should “routinely” receive his A file pursuant to 8 USC §1229a(c)(2)
(B) because the statute requires the AG to produce to the respondent “any other records and documents,
not consider … to be confidential”].
D. Conviction for Bringing In, Harboring, Transporting, or Encouraging [INA §274, 8 USC §1324]
1. In General—A conviction under INA §274 includes: Illegally bringing in [§274(a)(1)(A)(i)], transporting
[§274(a)(1)(A)(ii)], harboring [§274(a)(1)(A)(iii)], and encouraging someone to come to, enter or reside in the
U.S. [§274(a)(1)(A)(iv)], conspiring or aiding and abetting these crimes [§274(a)(1)(A)(v)], or bringing
someone to the U.S. [§274(a)(2)]. IRCA §112, PL 99-603, 100 Stat. 3359 (Nov. 6, 1986), amended INA
§274(a), 8 USC §1324(a), to eliminate the [“Texas Proviso”] exception that employment is not harboring.
However, INS regulatory comments, 52 FR 16217 (May 1, 1987), made it clear that this statute will not be
applied to cases involving only employment. One court, ignoring the regulatory comments, found that
employment does constitute harboring. U.S. v. Kim, 193 F.3d 567, 572–74 (2d Cir. 1999). Another court found
that it was not reversible error for a district judge to refuse to give a “mere employment” jury instruction to
harboring and smuggling charges. U.S. v. Khanani, 502 F.3d 1281, 1285–89 (11th Cir. 2007) [failure to give
mere employment jury instruction did not seriously impair defendant’s ability to conduct his defense because
the instructions as given already required proof beyond mere employment]. See also U.S. v. Tipton, 518 F.3d
591 (8th Cir. 2008) [evidence was sufficient for harboring where persons were given employment, a place to
live, daily transportation, money to purchase necessities, and counterfeit immigration papers were maintained
for the workers]; U.S. v. Shum, 496 F.3d 390 (5th Cir. 2007) [using defendant’s employment of undocumented
to establish he facilitated their ability to remain in U.S. as an element necessary for conviction for harboring,
concealing or shielding undocumented].Religious organizations that enable persons to be volunteer ministers
and provide them basic living expenses are exempt from the transporting, harboring or encouraging
provisions. INA §274(a)(1)(C). Congress in IIRIRA §203, in other contexts, made it a criminal penalty to
knowingly hire at least 10 individuals in a 12-month period with actual knowledge that they are not authorized
to work and have been brought to U.S. in violation of INA §274.
Violation of the “bringing in” provision or conspiring to do so is punishable by up to 10 years. Violation of the
transport, harboring and encouraging provision, if done for commercial advantage or financial gain, is also up
to 10 years; otherwise it is up to 5 years. It is also up to 5 years for aiding and abetting and up to 5 years for
knowingly hiring 10 persons, during any 12-month period, with knowledge that they are not authorized to be
employed and have been brought to U.S. in violation of INA §274. Sentences may be increased by up to 10
years in the case of a person who has brought aliens into the U.S. as part of an ongoing commercial
enterprise, the number of aliens transported were in groups of 10 or more and the aliens were transported in
a manner that endangered their lives or the aliens presented a life-threatening risk to people in the U.S. INA
§274(a)(4). If serious injury, penalties may be up to 20 years, and if death occurs the death sentence may be
imposed. INA §274(a)(1)(B). U.S. v. Matus-Leva, 311 F.3d 1214, 1218–19 (9th Cir. 2002) [language requiring
harsher sentence if smuggling “results in the death of any person” is not void for vagueness]. The statute
permits convictions for “reckless disregard.” Prosecution generally must show willfulness. U.S. v. Morales-
Rosales, 838 F.2d 1359 (5th Cir. 1988). Alienage and status are elements of the crime. U.S. v. Alvarado-
Machado, 867 F.2d 209, 212 (5th Cir. 1989) [reversing conviction where no admissible evidence on
alienage]. At least one court has found that the statutes apply extraterritorially. U.S. v. Delgado-Garcia, 374
F.3d 1337, 1343–51 (D.C. Cir. 2004) [§274(a) applies extraterritorially where Ecuadorian ship carrying
potentially illegal persons was in international waters 170 nautical miles south of Guatemala and Mexico].
2. Bringing Into or Attempt to Bring Into the United States—INA §274(a)(1)(A)(i). This section requires the
defendant to accompany or arrange to have the alien accompanied (as in a smuggling operation) across the
border into the U.S. U.S. v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010) [supplying a fraudulent passport
stamp and advising the alien that the stamp would only allow him to work in the U.S. after he surreptitiously
entered the country does not establish a violation under this section and plea was vacated]. Page 397
3. Bringing to the United States—”Bringing to,” or “smuggling” under INA §274(a)(2), 8 USC §1324(a)(2),
involves: “Any person who, knowing or in reckless disregard of the fact that an alien has not received prior
official authorization to come to, enter, or reside in the United States brings to or attempts to bring to the
United States in any manner whatsoever, such alien, regardless of any official action which may later be
taken with respect to such alien…” The elements thus require that (1) the defendant knowingly bring the
person to the U.S.; (2) that the defendant knew or was in reckless disregard of the fact that the alien had not
received prior official authorization to come to or enter the U.S.; and (3) smuggling occurs regardless of any
official action taken later with respect to the persons. Specific intent, in the view of one circuit, is not required
for a conviction. U.S. v. Dominguez, 661 F.3d 1051, 1063-71 (11th Cir. 2011) [sincere belief that wet-foot/dry-
foot policy and Cuban Adjustment Act gave persons legal status in U.S. was not a defense]. The section has
been broadly defined to include “leading,” “escorting,” or “causing [the alien] to come along” to the U.S. U.S.
v. Yoshida, 303 F.3d 1145, 1151–52 (9th Cir. 2002) [where defendant guided undocumented persons to board
aircraft, accompanied them on flight to U.S., and had their baggage claim receipts in phony names in her
underwear, facts were sufficient for conviction]. Under law in the Ninth Circuit, a “bringing to” offense is
complete when the transporter drops the persons off on the U.S. side of the border. U.S. v. Reyes-Bosque,
596 F.3d 1017, 1035–36 (9th Cir. 2010) [upheld 210-month sentence where there was evidence that
defendant was connected to conduct that occurred before the entry of undocumented persons and thus
cross-border transportation]; U.S. v. Lopez, 484 F.3d 1186, 1187–88 (9th Cir. 2007) (en banc) [transporting
persons after they were dropped off in the U.S. cannot constitute a “bringing to” offense]; U.S. v. Hernandez-
Orellana, 539 F.3d 994, 1003–06 (9th Cir. 2008) [same]; But “bringing to” language does not include assisting
someone to come to the U.S. where all fraudulent acts are committed by defendant abroad.U.S. v. Assadi,
223 F.Supp.2d 208 (D.D.C. 2002) [dismissing counts related to “bringing to” where person created false
passports, bought airline tickets to U.S., procured boarding passes, and took them to the airport, but never
accompanied them to U.S.]. But see U.S. v. Noriega-Perez, 670 F.3d 1033, 1040-43 (9th Cir. 2012) [where
there is a nexus between defendant’s activities and the “brings to” offense by providing “load houses” that he
knew, through incriminating admissions made on tape, were part of the smuggling operation, he can be
convicted with aiding and abetting]; U.S. v. Flores-Blanco, 623 F.3d 912, 920-22 (9th Cir. 2010) [although
defendant did not transport persons across the border, his willing association with the venture and his
connection to conduct that occurred before the entry was sufficient for an aiding and abetting charge]; U.S. v.
Villanueva, 408 F.3d 193, 197–99 (5th Cir. 2005) [Congress intended statute prohibiting attempts to bring
undocumented persons to the U.S. to apply to extraterritorial conduct]; U.S. v. Aslam, 936 F.2d 751 (2d Cir.
1991) [conduct covered not only under transporting provision, but also bringing in provision]. U.S. v.
Calhelha, 456 F.Supp.2d 350, 359–60 (D. Conn. 2006) [distinguishing U.S. v. Assadi because defendant met
future workers at the airport and transported them]. However, transportation could be sufficient for an aiding
and abetting or a conspiracy charge if there was additional conduct. See e.g., U.S. v. Singh, 532 F.3d 1053
(9th Cir. 2008) [person involved in transportation on the U.S. side, plus other pre- and post-planning
activities, was convicted of aiding and abetting]. Also persons who fraudulently obtain officially issued visas
for noncitizens may be charged under the “bringing in” provision. U.S. v. Gasanova, 332 F.3d 297 (5th Cir.
2003) [defendants who brought topless dancers into the U.S. on J-1 visas claiming they were conducting
academic research]. U.S. v. Calhelha, 456 F.Supp.2d 350, 357–59 (D. Conn. 2006) [upholding a count in the
indictment over objection that persons brought to U.S. on visa waiver were facially legal even if defendant
arranged their trips to work at his stores]. Commercial/financial gain must be proved to uphold conviction.
U.S. v. Munoz, 412 F.3d 1043, 1046–48 (9th Cir. 2005) [where trial court gave jury instruction that relieved
government of its burden to prove financial gain, conviction was reversed]; U.S. v. Calhelha, 456 F.Supp.2d
350, 360 (D. Conn. 2006) [commercial gain includes funds for transporting persons as well as gain to
defendant’s business where persons were working]; U.S. v. Dominguez, 661 F.3d 1051, 1066-67 (11th Cir.
2011) [government does not have to prove that efforts directed to commercial gain were successful and it is
not a defense that person did not make or that he lost money]. But see U.S. v. Nolasco-Rosas, 286 F.3d 762
(5th Cir. 2002) [financial gain is not an element of aiding and abetting]. The “bringing to” (as distinguished
from bringing in) provision is a misdemeanor INA §274(a)(2)(A); however, penalties are substantially
enhanced if the person was brought to U.S. to commit a crime or it was an offense done for commercial
advantage or personal gain, or the alien was not immediately brought to the DHS inspection station. INA
§274(a)(2)(B). U.S. v. Garcia, 883 F.3d 570 (5th Cir. 2018) [commercial advantage or Page 398 personal gain
cannot be mere reimbursement for expenses; however, the jury may infer advantage or gain from
circumstantial evidence which includes whether defendant was smuggling non–family members, whether the
operation was highly organized, and whether there was a financer of the operation who promised
reimbursement]. The section was amended to establish a violation for each alien. In order to obtain a
conviction, the defendant must have had specific intent to violate U.S. immigration law. U.S. v. Barajas-
Montiel, 185 F.3d 947, 951–52 (9th Cir. 1999). Attempt also requires specific intent. U.S. v. Hernandez-
Franco, 189 F.3d 1151, 1158 (9th Cir. 1999). But see U.S. v. Perez, 443 F.3d 772, 780–81 (11th Cir. 2006)
[upholding conviction on deliberate indifference standard]. The “bring and present” requirement of 8 USC
§1324(a)(2)(B)(iii) that imposes a duty on individuals transporting international passengers to “bring and
present” those passengers to appropriate immigration officer does not violate the 5th Amendment prohibition
against self-incrimination. U.S. v. Garcia-Cordero, 610 F.3d 613 (11th Cir. 2010).
4. Transporting [INA §274(a)(1)(A)(ii), 8 USC §1324(a)(1)(A)(ii)]
4.a. Government must prove: (1) defendant transported or moved an alien within the U.S.; (2) alien was in
the U.S. in violation of law; (3) defendant knew or acted in reckless disregard of this fact; and (4)
defendant acted willfully in furtherance of the alien’s violation of the law [illegal presence]. U.S. v.
Hernandez, 913 F.2d 568 (8th Cir. 1990). Reckless disregard requires a person to disregard a risk of harm
of which he is aware which means the defendant must be aware of facts from which the inference of the
risk at issue could be drawn and actually draw the inference, that is, be subjectively aware of the risk. U.S.
v. Rodriguez, 880 F.3d 1151, 1159-60 (9th Cir. 2018) [quoting the S.Ct. definition of reckless disregard in
Farmer v. Brennan, 511 U.S. 825, 837 (1994) and reversing conviction for transporting due to incorrect
jury instruction]. See U.S. v. Khalil, 857 F.3d 137 (2d Cir. 2017) [defendant did not further person’s
unlawful presence in the U.S. when defendant drove person to Penn Station in order to facilitate that
person’s entry into Canada by using a fraudulent passport]; U.S. v. Dominguez, 661 F.3d 1051, 1061-62
(11th Cir. 2011) [conviction for transporting reversed where aliens were brought to experienced
immigration lawyer to legalize their status because a transportation conviction requires transporting to
further illegal status]; U.S. v. Merkt, 764 F.2d 266 (5th Cir. 1985) [same]. Transporting “for gain” is no
longer an element of the crime. U.S. v. Mejia-Luna, 562 F.3d 1215, 1220–21 (9th Cir. 2009) [actual
payment or an agreement to pay the defendant directly is not an element of proof]; U.S. v. Romero-Cruz,
201 F.3d 373, 378 (5th Cir. 2000). However, there is a separate aggravating circumstance for transporting
for gain. 8 USC §1324(a)(1)(B)(i) that has been described as a separate offense. U.S. v. Williams, 449
F.3d 635, 646 (5th Cir. 2006). The government may prove a violation by circumstantial evidence. U.S. v.
Stonefish, 402 F.3d 691, 695–97 (6th Cir. 2005) [upholding conviction without direct evidence of payment].
The government need not prove unlawful entry but only that person was present in the U.S. in violation of
law. U.S. v. Franco-Lopez, 687 F.3d 1222 (10th Cir. 2012). Conviction requires knowledge or reckless
disregard of alien’s illegal status. U.S. v. Mussaleen, 35 F.3d 692, 698 (2d Cir. 1994) [upholding reckless
disregard standard]; U.S. v. Diaz, 936 F.2d 786 (5th Cir. 1991); U.S. v. Tapia, 761 F.2d 1488 (11th Cir.
1985). Indictment need not allege willfulness. U.S. v. Rivera, 879 F.2d 1247 (5th Cir. 1989). Defendant can
have intent to further person’s illegal presence in U.S. even if the defendant is engaged in a business to
transport illegal aliens and is simply doing it to earn a living. U.S. v. Hernandez-Guardado, 228 F.3d 1017,
1022–24 (9th Cir. 2000). In order to prove transportation resulting in the death, the government must
prove beyond a reasonable doubt that the defendant’s conduct was the “proximate cause” of the charged
deaths. U.S. v. Pineda-Doval, 614 F.3d 1019, 1024-28 (9th Cir. 2010).
4.b. Defense raising potential legality of alien’s status unsuccessful. U.S. v. Aguilar, 883 F.2d 662, 676–80
(9th Cir. 1989) [assertion that Salvadorans are refugees not a defense]; U.S. v. Alvarado-Machado, 867
F.2d 209 (5th Cir. 1989) [alien informants with I-210s outside U.S. were not legally re-entering]; U.S. v.
Rivera, 859 F.2d 1204, 1209 (4th Cir. 1988) [eligibility for amnesty not a defense]; U.S. v. Rodriguez-
Rodriguez, 840 F.2d 697 (9th Cir. 1988) [where defendant picked up aliens and drove them from San
Ysidro to L.A. it was not a defense that they were eligible for AOS]; U.S. v. Merkt, 794 F.2d 950 (5th Cir.
1986) [assertion that transported aliens are refugees is not a defense]. But see U.S. v. Medina-Garcia,
918 F.2d 4 (1st Cir. 1990) [where informants given I-210s, they are not illegal aliens and no conviction for
substantive offense possible, although conspiracy and attempt convictions upheld]; U.S. v. Diaz, 936 F.2d
786, 788 (5th Cir. 1991) Page 399 [government must prove alien illegally in U.S., and cannot use his
conviction for being undocumented in U.S. to prove element of crime]; U.S. v. Darsan, 811 F.Supp. 119
(W.D.N.Y. 1993) [rejecting motion to dismiss based upon eligibility for waiver because nonimmigrants are
presumed to be entering permanently and must prove their lack of intent]. An effort to transport the person
to obtain lawful status however may be a defense. U.S. v. Dominguez, 661 F.3d 1051, 1061-62 (11th Cir.
2011) [conviction for transporting reversed where aliens were brought to experienced immigration lawyer
to legalize their status because a transportation conviction requires transporting to further illegal status].
4.c. Religious beliefs or free speech rights may not be a defense. U.S. v. Aguilar, 883 F.2d 662, 687, 694–96
(9th Cir. 1989); U.S. v. Merkt, 764 F.2d 266, 270–71 (5th Cir. 1985) [defendant’s religious convictions as a
sanctuary worker not a defense]; American Baptist Churches v. Meese, 712 F.Supp. 756 (N.D. Cal. 1989).
But see U.S. v. Martinez & Remer-Thamert, No. Cr. 87-476 (D.N.M Aug. 3, 1988) [acquittal of members of
church involved in sanctuary movement].
4.d. Mens rea is an element of the statute, and the court must instruct the jury as to criminal intent. U.S. v.
Nguyen, 73 F.3d 887 (9th Cir. 1995) [statute is not strict liability; must show criminal intent for conviction].
At least one circuit has distinguished between a charge of attempting to transport, which it regards as a
specific intent crime because the government must prove conscious desire, and actual transporting, which
is treated as a general intent crime because the government need only show knowledge or reckless
disregard. U.S. v. Ramirez-Martinez, 273 F.3d 903, 913–15 (9th Cir. 2001).
4.e. Willful transportation of illegal aliens is not per se a violation of the statute, for the law prosecutes such
conduct only when it furthers the alien’s unlawful presence or entry. U.S. v. Parmelee, 42 F.3d 387, 391
(7th Cir. 1994) [defendant’s knowledge that transportation furthers illegal presence is an essential element
of this crime]; U.S. v. One 1982 Ford Pick-Up, 873 F.2d 947 (6th Cir. 1989) [when defendant’s intent was
not to further illegal presence of Salvadorans, no forfeiture]; Merkt, supra at 271; U.S. v. Fierros, 692 F.2d
1291, 1295 (9th Cir. 1982) [transport of alien to and from work not violation of (a)(2)]; U.S. v. Moreno, 561
F.2d 1321, 1322 (9th Cir. 1977); U.S. v. Moreno-Duque, 718 F.Supp. 254 (D. Vt. 1989) [purpose of
transportation must be to further violation of law]; U.S. v. One 1984 Chevrolet Truck, 701 F.Supp. 213
(N.D. Ga. 1988) [government was not substantially justified where it sought forfeiture for bringing person
to and from work]; U.S. v. Bienvenido de la Rosa Basilio, 682 F.Supp. 13 (D.P.R. 1988) [where alien’s
transportation occurred while serving as a government informant, court granted motion to dismiss
because illegal transportation was not in furtherance of illegal entry]; U.S. v. One 1982 Toyota, 642
F.Supp. 335 (N.D. Ill. 1986) [not all knowing transportation of aliens is a violation of (a)(1)(B)]. But see
U.S. v. Barajas-Chavez, 162 F.3d 1285 (10th Cir. 1999) (en banc) [the “in furtherance language” is broad
enough to encompass any person who transports someone, regardless of profit motive or close
relationship, with knowledge or with reckless disregard of fact that the person transported is illegal and the
transportation will help, advance, or promote the continued illegal presence]; U.S. v. Velasquez-Cruz, 929
F.2d 420 (8th Cir. 1991); U.S. v. One 1982 Chevrolet Crew-Cab Truck, 810 F.2d 178 (8th Cir. 1987).
Whether the alien made an entry into the U.S. is irrelevant in defending a smuggling charge. U.S. v.
Gonzalez-Torres, 309 F.3d 594, 599–600 (9th Cir. 2002) [the concept of entry is not relevant to smuggling
charges under §274(a)(2)(B)(iii) because Congress revised the provisions under PL 99-603, Title I, Part B,
§112 (1986), and allowed for a conviction for “bringing to” the U.S., thereby deliberately overruling case
law requiring “bringing into”]; U.S. v. Hernandez-Garcia, 284 F.3d 1138 (9th Cir. 2002) [conviction for
transporting undocumented persons within U.S. does not require an “entry” where the defendant knew the
persons who had “come to” the border were undocumented]; U.S. v. Esparza, 882 F.2d 143 (5th Cir.
1989) [transportation of Salvadorans who were released on their own recognizance but given instructions
to remain in area, is violation of statute]; U.S. v. Franco-Lopez, 709 F.Supp.2d 1152, 1159-64 (D.N.M.
2010) [lengthy discussion of entry doctrine but concluding that a person may be convicted under the
statute if he transports someone who “comes to” the U.S. without an “entry”]. Page 400
5. Harboring; Concealing; Shielding from Detection
INA §274(a)(1)(A)(iii), 8 USC §1324(a)(1)(A)(iii); PL 64-301, 39 Stat. 874, 880 (1917) (repealed); PL 82-414,
Title IV, §274(a), 66 Stat. 163, 228-29 (1952); PL 82-823, 66 Stat. 26 (1952); PL 99-603, Title I, Part B,
§112(a), 100 Stat. 3359, 3381-82 (1986).
To prove a claim for harboring, concealing or shielding from detection, the government must establish that
the defendant’s conduct facilitated a person’s remaining in the U.S. illegally and that he or she prevented
government authorities from detecting the person’s presence. U.S. v. McClellan, 794 F.3d 743, 748-51 (7th
Cir. 2015) [when the basis for the harboring conviction is housing there must be evidence that the defendant
intended to safeguard the person from authorities]; U.S. v. Campbell, 770 F.3d 556, 569-71 (7th Cir. 2014)
[defendant gave trafficked women shelter to prevent law enforcement from detecting their illegal status and
deporting them]; U.S. v. Vargas-Cordon, 733 F.3d 366, 383 (2d Cir. 2013) [harboring means more than
sheltering and judge gave proper instruction regarding both prongs resulting in conviction for harboring niece
where defendant made detection more difficult]; Delrio-Mocci v. Connolly Properties Inc., 672 F.3d 241 (3d
Cir. 2012) [dismissed RICO claim by owner of leasehold property against property managers for harboring
and encouraging/inducing undocumented persons to reside in the U.S. by actively seeking them out as
prospective tenants because, inter alia, there was no showing that defendants sought to prevent government
authorities from detecting the undocumented tenants]; U.S. v. Costello, 666 F.3d 1040 (7th Cir. 2012)
[conviction reversed because harboring does not include an LPR girlfriend giving her undocumented
boyfriend a place to stay with her]; U.S. v. Dominguez, 661 F.3d 1051, 1063 (11th Cir. 2011) [conviction for
harboring reversed where there was no effort to conceal aliens and they were brought to experienced
immigration lawyer to legalize their status]; U.S. v. Cuevas-Reyes, 572 F.3d 119 (3d Cir. 2009) [reversing
harboring conviction where defendant was taking undocumented persons out of the U.S.]; U.S. v. Silveus,
542 F.3d 993, 1003–04 (3d Cir. 2008) [reversing harboring conviction where the government failed to prove
the noncitizen’s presence]; U.S. v. Ozcelik, 527 F.3d 88, 97–101 (3d Cir. 2008) [telling undocumented person
to keep a low profile and stay out of trouble did not constitute harboring or concealing]. But see U.S. v.
Acosta de Evans, 531 F.2d 428, 430 (9th Cir. 1976) [“harbor” means “to afford shelter to” and does not
require the intent to avoid detection]. It usually includes sheltering with knowledge of alien’s illegal status,
usually for purposes of commercial advantage or private financial gain. U.S. v. Dann, 652 F.3d 1160 (9th Cir.
2011) [upholding conviction for harboring for private financial gain live-in nanny/housekeeper]; U.S. v. Yu Tian
Li, 615 F.3d 752 (7th Cir. 2010) [conviction upheld for allowing undocumented workers in restaurant to stay at
defendant’s home]; U.S. v. Calimlim, 538 F.3d 706, 714–15 (7th Cir. 2008) [upholding conviction for having
live-in housekeeper that included forced labor]; U.S. v. Shum, 496 F.3d 390, 392 (5th Cir. 2007) [upholding
conviction of employer who provided undocumented workers with false identity documents and who failed to
submit record-keeping paperwork to SSA]; U.S. v. Zheng, 306 F.3d 1080 (11th Cir. 2002) [provision of both
housing and employment constitutes harboring]; U.S. v. Kim, 193 F.3d 567, 574–75 (2d Cir. 1999)
[employment constitutes harboring where employer knew or recklessly disregarded person’s illegal status
and took steps to help her remain in employment undetected]; U.S. v. Sanchez, 927 F.2d 376 (8th Cir. 1991);
U.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975); U.S. v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th Cir. 1982)
[approving a jury charge defining harboring as “any conduct tending to substantially facilitate an alien’s
remaining in the United States illegally”]; U.S. v. Cantu, 557 F.2d 1173 (5th Cir. 1977) [where employer
refused to admit INS without warrant and aided aliens to leave work place, statute violated]; U.S. v. Belevin-
Ramales, 458 F.Supp.2d 409 (E.D. Ky. 2006) [harboring requires proof that the defendant is seeking to assist
the person in an attempt to evade and avoid detection]. Cf. U.S. v. Khanani, 502 F.3d 1281, 1285–89 (11th
Cir. 2007) [although “mere employment” is a defense to harboring and smuggling, it was not reversible error
for the district court to deny a jury instruction on mere employment because the instructions as given already
required proof beyond mere employment]. Harboring also includes keeping persons in virtual slavery for
personal benefit, U.S. v. Bonetti, 277 F.3d 441 (4th Cir. 2002) [upholding 78-month sentence and ordering
restitution under Mandatory Victim Restitution Act for woman who was kept in virtual domestic slavery for
years]. The government must show the defendant intended to violate the law. U.S. v. You, 382 F.3d 958,
965–66 (9th Cir. 2004). Aiding and abetting harboring requires: (1) the alien entered or remained in the U.S.
in violation of law; (2) the defendant concealed, harbored or sheltered the alien in the U.S.; (3) the defendant
knew or recklessly disregarded that the alien entered or remained in the U.S. in violation of law; and (4) the
defendant’s conduct tended to substantially Page 401 facilitate the alien remaining in the U.S. U.S. v. De
Jesus-Batres, 410 F.3d 154, 160 (5th Cir. 2005) [upholding aiding and abetting conviction and finding that
financial gain is not an element of the crime]. A harboring conviction subjects the defendant to mandatory
forfeiture of “any property real or personal” that was “used to facilitate … the commission” of the crime. 18
USC §982(a)(6)(A). U.S. v. George, 779 F.3d 113, 122-24 (2d Cir. 2015) [home where house worker was
harbored was forfeited].
For a concealment charge, the government must prove that: (1) the individual was an alien in the U.S. in
violation of law; (2) the defendant knew or was in reckless disregard of the fact that the individual was in the
U.S. in violation of law; and (3) the defendant knowingly shielded from detection or concealed or attempted to
shield from detection or conceal the individual. The jury must find that the defendant committed these acts as
to each individual. U.S. v. Pereyra-Gabino, 563 F.3d 322, 328–29 (8th Cir. 2009) [reversing convictions for
concealment where the jury instructions permitted the jury to find guilt without finding all 3 elements as to
each individual alien].
Shielding from detection may also be a separate charge under the statute. The circuits are split on whether a
conviction for shielding from detection requires the government to prove that the defendant engaged in
conduct “tending substantially” to assist the undocumented person. Compare U.S. v. Cantu, 557 F.2d 1173,
1180 (5th Cir. 1977), and U.S. v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975) requiring that the government prove
that the actions of the defendant tended to substantially facilitate the person remaining in the U.S. with U.S.
v. Ye, 588 F.3d 411 (7th Cir. 2009) that upheld a jury instruction providing that “any means to prevent
detection,” no matter how slight, was sufficient to uphold a conviction.
6. Encouraging—INA §274(a)(1)(A)(iv), 8 USC §1324(a)(1)(A)(iv). The elements of the offense are: (1)
encouraging or inducing; (2) an alien; (3) to come to, enter, or reside in the U.S.; and (4) knowing or in
reckless disregard that the person’s coming to, entering, or residing in the U.S. is illegal. U.S. v. Lopez, 590
F.3d 1238, 1250 (11th Cir. 2009) [encouraging includes helping based upon numerous dictionary definitions].
Includes a scheme to sell fraudulent work authorizations and other documents to aliens in the U.S. even if
they initially entered legally. U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992) [lawyer’s conviction for
representing persons at INS who were sold false Social Security and employment documents by co-
conspirator]. It also includes, in the view of one circuit, fraudulently obtaining a SSN for an undocumented
person. U.S. v. Ndiaye, 434 F.3d 1270, 1296–98 (11th Cir. 2006) [where defendant obtained Social Security
cards marked “valid for work only with INS authorization,” the court still regarded it as encouraging an
undocumented person to reside in the U.S.]. At least one circuit has held that each offense listed in 274 is
separate and distinct and transporting an alien in the U.S. is not “encouraging” under 274(a)(1)(A)(iv). U.S. v.
Thum, 749 F.3d 1143 (9th Cir. 2014) [“encouraging” or “aiding and abetting” that crime does not include
escorting a noncitizen from a fast food restaurant near the border to a nearby vehicle because this was
merely helping him to travel within the U.S.].
7. Conspiracy or Aiding/Abetting Commission of Any of Acts in INA §274(a)(1)(A)(v)—To convict a

defendant of conspiracy, for example to transport an undocumented person under §274(a)(1)(A)(v)(I) the
government must prove the defendant: (1) agreed with one or more persons; (2) to transport and
undocumented person inside the U.S.; (3) in furtherance of his unlawful presence; and (4) knowingly or in
reckless disregard of the fact that the person’s presence in the U.S. was unlawful. U.S. v. Jimenez-Elvirez,
862 F.3d 527, 533-34 (5th Cir. 2017) [convicted based upon circumstantial evidence as no material witness
identified defendant]. Prosecution need not demonstrate that the defendant was working for financial gain but
only that the principal stood to benefit financially. U.S. v. Lopez-Martinez, 543 F.3d 509, 515–16 (9th Cir.
2008). However, an aiding and abetting charge can only be sustained if the defendant is aiding or abetting
the principal and not the alien being brought into the U.S. U.S. v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010)
[supplying a fraudulent passport stamp and advising the alien that after he enters illegally he can use the
stamp to work is not aiding and abetting a principal]. A conviction for aiding and abetting also cannot be
sustained unless the jury unanimously agrees that the defendant was an aider and abettor. U.S. v. Williams,
449 F.3d 635, 647–48 (5th Cir. 2006) [where jury unanimously determined defendant was culpable but was
not unanimous on aiding and abetting, conviction was reversed]. Page 402
8. Immediate Presentation—Anyone bringing an unauthorized alien into the U.S. without immediately
presenting the alien to an appropriate immigration officer at a designated POE may be convicted under
§274(a)(2)(B)(iii). U.S. v. Perez, 443 F.3d 772, 782 (11th Cir. 2006) [conviction will be sustained even if the
defendant was stopped by police and not given an opportunity to present the smuggled alien to an
immigration officer at a port of entry]. Moreover, persons who violate §274(a)(2)(B)(i) [bringing in someone to
commit a crime] or §274(a)(2)(B)(ii) [bringing someone in for commercial advantage] can be convicted even if
they immediately brought the alien to an inspection station.
9. Defenses
9.a. Government Misconduct—U.S. v. Valdovinos-Valdovinos, 588 F.Supp. 551 (N.D. Cal.), rev’d on other
grounds, 743 F.2d 1436 (9th Cir. 1984) [INS agent passed as employer and lied to Mexican citizens about
entering U.S. without papers to trap transporters]. But see U.S. v. Alvarado-Machado, 867 F.2d 209 (5th
Cir. 1989) [use of alien informants not improper]; U.S. v. Morales-Quinones, 812 F.2d 604, 610–11 (10th
Cir. 1987).
9.b. Mere Employment—Although “mere employment” is a defense to harboring and smuggling, at least one
court has found that it was not reversible error for the district court to deny a jury instruction on mere
employment. U.S. v. Khanani, 502 F.3d 1281, 1285–89 (11th Cir. 2007) See in this section ¶ 1 (p.396),
supra.
9.c. Duress—Duress offered as a legal excuse for committing the crime has no effect because a duress
defense is only effective if it negates the specific intent element of attempted illegal entry. U.S. v.
Solorzano-Rivera, 368 F.3d 1073, 1080–81 (9th Cir. 2004) [where defendant entered voluntarily but his
entry was due to pressure from Mexican authorities chasing him, his defense went to a legal excuse but
did not negate the specific-intent element of the crime]. The burden of proof remains on the defendant.
U.S. v. Leal-Cruz, 431 F.3d 667 (9th Cir. 2005) [jury instruction placing the burden on the defendant to
prove duress was correct]; U.S. v. Hernandez-Franco, 189 F.3d 1151, 1157–58 (9th Cir. 1999) [proof must
be by a preponderance of the evidence].
9.d. Public Authority Defense—When a defendant engages in criminal conduct at the request of a
government officer, with the reasonable belief that she is acting as an authorized agent to assist law
enforcement, she lacks the criminal intent to be convicted. U.S. v. Burt, 410 F.3d 1100 (9th Cir. 2005)
[reversing conviction for trial judge’s failure to give jury instruction on public authority defense].
9.e. Belief that Person Is Treated as Legal—Under the smuggling statute, 8 USC §1324(a)(2), at least one
circuit holds that sincere belief that person was legal was not relevant because statute does not require
specific intent. U.S. v. Dominguez, 661 F.3d 1051, 1063-71 (11th Cir. 2011) [sincere belief that wet-
foot/dry-foot policy and Cuban Adjustment Act gave persons legal status in U.S. was not a defense]; U.S.
v. Kendrick, 682 F.3d 974, 984-85 (11th Cir. 2012) [same].
9.f. Unconstitutionality of INA §274—Attacks on the constitutionality of the enhancement provision of INA
§274, 8 USC §1324, as violative of Apprendi v. New Jersey, 530 U.S. 466 (2000), on the theory that the
statute permits increased penalties, or is violative of the due process clause on the theory that §274(a)(1)
(B)(iv) [smuggling resulting in the death of a person] is unconstitutionally vague, have been rejected prior
to U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Ramirez-Lopez, 315 F.3d 1143, 1157–59 (9th Cir. 2003).
10. Forfeiture and Seizure
10.a. CBP Responsible for Processing Asset Forfeitures—The general DHS forfeiture statute is INA
§274(b), 8 USC §1324(b), predicated on a violation of §274(a). Judicial proceedings for forfeiture are in
rem actions brought by the government pursuant to the Supplemental Rules for Certain Admiralty and
Maritime Claims. The authority for forfeiture and seizure enforcement lies primarily with CBP. 73 FR
9010–12 (Feb. 19, 2008). Under 8 CFR §274.1 CBP and ICE may seize and forfeit that which “has been
or is being used in the commission of a violation of any statutory authority involving the unlawful
introduction of aliens, contraband or proceeds of such introduction, pursuant to, but not limited to, section
274(a) of the Act (8 USC §1324(a))”. Former regulations regarding forfeit and asset seizure under 8 CFR
pt. 274 are not valid. The processing of all Page 403 asset forfeiture will be done in accordance with the
procedures in 19 CFR pts. 162 and 171, and petitions for remission will be permitted in accordance with
19 USC §1618. 8 CFR §274.1 (as amended 73 FR 9011 (Feb. 19,2008)).
Forfeiture can occur not only for transportation of aliens into the U.S. but “in” the U.S. as well. U.S. v. One
1982 Chevrolet Crew-Cab Truck, 810 F.2d 178 (8th Cir. 1987) [forfeiture upheld on summary judgment
where no evidence that owner took “reasonable precautions”]; Tucson Ecumenical Council v. Ezell, 704
F.Supp. 980 (D. Ariz. 1989) [forfeiture upheld where actions of owner were in furtherance of alien’s illegal
presence]; U.S. v. One 1985 Ford F-250 Pickup, 702 F.Supp. 1308 (E.D. Mich. 1988) [8 USC §1324(a)(1)
(B) covers transportation within U.S.]; U.S. v. One 1984 Chevrolet Trans Star, 623 F.Supp. 625 (D. Conn.
1985). Forfeiture may arise even if person has a valid visa but misrepresents herself as a USC to gain
entry. U.S. v. One 1989 Mercedes Benz, 971 F.Supp. 124 (W.D.N.Y. 1997). It may also arise where
defendant harbored persons in his home. U.S. v. Yu Tian Li, 615 F.3d 752, 757 (7th Cir. 2010) [forfeiture
of home for harboring undocumented aliens working in defendant’s restaurant]. But mere transportation of
undocumented alien pursuant to employment is not a basis for forfeiture as a violation of 8 USC §1324(a)
(2). U.S. v. One 1984 Ford Van, 826 F.2d 918 (9th Cir. 1987). Government must demonstrate
transportation was in furtherance of illegal entry. See in this section ¶ 4.e (p.399), supra. But see U.S. v.
One 1984 Ford Pickup Truck, No. CA 3-88-2291-R (N.D. Tex. Aug. 30, 1989) [seizure based upon
transportation to and from work], reported in 66 No. 36 Interpreter Releases 1033–34 (Sept. 18, 1989).
A harboring conviction can also subject a defendant to mandatory forfeiture of “any property real or
personal” that was “used to facilitate … the commission” of the crime. 18 USC §982(a)(6)(A). U.S. v.
George, 779 F.3d 113, 122-24 (2d Cir. 2015) [home where house worker was harbored was forfeited].
10.b. Civil Asset Forfeiture Reform Act of 2000 (CAFRA)—Prior to CAFRA [PL 106-185, 114 Stat. 202], the
government needed only to establish probable cause for the institution of a forfeiture by making a prima
facie showing. Many courts viewed this burden as more than mere suspicion, but less than probable
cause. U.S. v. One 1983 Homemade Vessel Named Barracuda, 625 F.Supp. 893 (S.D. Fla. 1986). The
statute defined certain proof, including government records, as establishing prima facie proof [INA §274(b)
(3)]. The burden of proof, however, was strictly construed. U.S. v. One 1982 Buick Regal, 670 F.Supp. 808
(N.D. Ill. 1987). Once the government established its burden, the burden shifted to claimant to establish a
defense to forfeiture. U.S. v. One 1985 Ford F-250 Pickup, supra; U.S. v. One 1984 Chevrolet Truck, 682
F.Supp. 1221, 1226 (N.D. Ga. 1988). Under CAFRA “a forfeiture proceeding commenced on or after [Aug.
23, 2000]” requires the government to prove forfeiture by “a preponderance of the evidence.”
Administrative forfeiture proceedings have been found to violate Fourth Amendment and Fifth Amendment
due process. Gete v. INS, 121 F.3d 1285 (9th Cir. 1997). Jurisdiction for civil forfeiture for violation of
certain immigration laws rests upon 28 USC §1355(a) and 18 USC §981. To determine which federal
statutes are covered for purposes of forfeiture look to 18 USC §1956(c)(7), which references 18 USC
§1961(1). See e.g., U.S. v. $6,190 in U.S. Currency, 581 F.3d 881, 884–85 (9th Cir. 2009).
10.c. Innocent Owner Defense—The innocent owner defense, although eliminated in the statute, may not be
eliminated as a constitutional matter. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).
See U.S. v. One 1983 Homemade Vessel Named Barracuda, 858 F.2d 643 (11th Cir. 1988) [innocent
owner requires proof that owner did everything he could to avoid unlawful use of property]; U.S. v.
$4,255,000 in U.S. Currency, 762 F.2d 895, 905–06 (11th Cir. 1985) [defense turns on owner’s actual,
rather than constructive, knowledge]; U.S. v. One 1985 Ford F-250 Pickup, supra [innocent owner
defense possible where vehicle is stolen or wrongfully possessed or owner did all that he reasonably
could to prevent illegal use]. Cannot rely on compliance with employer sanctions (verification) provisions
as a basis to assert innocent owner defense. U.S. v. One 1985 Ford F-250 Pickup, supra at 1312.
Lienholder’s interest in automobile may not be sufficient to have standing to assert innocent owner
defense. U.S. v. One 1982 Oldsmobile Cutlass, 709 F.Supp. 1542 (W.D. Okla. 1989). Nor may legal title
be sufficient if person or entity is nominee who does not exercise dominion or control over the property.
U.S. v. One 1990 Beechcraft, 1990 C Twin Engine, 619 F.3d 1275 (11th Cir. 2010); Page 404 U.S. v. Arce-
Padilla, 981 F.Supp.2d 852 (D. Ariz. 2013) [girlfriend of person criminally convicted of unlawfully bringing
person to U.S. was not bona fide owner of property and did not have an equitable lien]. Although hearsay
may be admissible, it is not admissible to rebut or establish the innocent owner defense. U.S. v. All
Monies ($477,048.62) in Acc’t No. 90-3617-3, Israel Discount Bank, 754 F.Supp. 1467, 1471 (D. Haw.
1991).
10.d. Unconstitutional Delay As a Defense—Delay in the initiation of post-seizure forfeiture proceedings may
be unconstitutional as a violation of due process. U.S. v. $8,850 in U.S. Currency, 461 U.S. 555 (1983)
[relying on criteria in Barker v. Wingo, 407 U.S. 514 (1972) to determine whether delay constitutional];
Gonzalez v. Rivkind, 858 F.2d 657 (11th Cir. 1988) [following U.S. v. $8,850 and U.S. v. Von Neumann,
474 U.S. 242 (1986); reversing lower court’s requirement mandating a post-seizure hearing in all cases
within 72 hours as too rigid]. The doctrine of laches may be used to bar claimant’s proceeding where she
failed to timely initiate challenge. Little v. U.S., 35 F.Supp.2d 538 (E.D. Mich. 1999).
10.e. Other Defenses—Other defenses to forfeiture include: (1) duress, U.S. v. One Lear Jet Aircraft, 617
F.Supp. 769, 775–76 (S.D. Fla. 1985); (2) property used as a common carrier; (3) property taken in
violation of the criminal laws by the perpetrator; (4) evidence used to form the basis for the forfeiture was
in violation of the Fourth Amendment, Vance v. U.S., 676 F.2d 183 (5th Cir. 1982); U.S. v. $144,600 in
U.S. Currency, 757 F.Supp. 1342, 1345 (M.D. Fla. 1991); (5) no “substantial connection” between the
property and the criminal activity, U.S. v. $134,752 in U.S. Currency, 706 F.Supp. 1075 (S.D.N.Y. 1989);
(6) failure to inform a noncitizen who is interrogated during a seizure of her right to communicate with her
embassy or consulate under Article 36 of the Vienna Convention on Consular Relations.Jogi v. Voges,
480 F.3d 822 (7th Cir. 2007) [allowing deported aggravated felon to bring civil rights claim for failure of
state officials to notify him of the right to consular assistance under Article 36(1)(b)]. But see Sanchez-
Llamas v. Oregon, 548 U.S. 331 (2006) [in criminal proceeding suppression is not an appropriate remedy
for an Article 36 violation and regular state rules of procedural default apply to bar Article 36 claims]. For a
more detailed discussion of Article 36 of the Vienna Convention, see in this chapter ¶ X.T.7.kk(4) (p.684),
infra.
10.f. Res Taken Out of Jurisdiction—Jurisdiction over forfeiture does not cease where res taken out of
jurisdiction while case on appeal. Republic Nat’l Bank of Miami v. U.S., 506 U.S. 80 (1992). The
government, however, may raise lack of jurisdiction on standing grounds to assert a claim because
claimant lacks an interest in the property, U.S. v. One Parcel of Real Property, 682 F.Supp. 694 (D.R.I.
1988).
10.g. Fugitive Disentitlement Doctrine—The fugitive from justice doctrine does not bar, per se, a party who is
a fugitive from criminal proceedings from litigating a civil in rem forfeiture proceeding that is related to the
criminal proceeding. Degen v. U.S., 517 U.S. 820 (1996). Post-Degen, Congress under CAFRA, however,
has given the district judge authority to enforce the fugitive disentitlement doctrine under certain
conditions. 28 USC §2466; U.S. v. One 1988 Chevrolet Cheyenne Half-Ton Pickup Truck, 357 F.Supp.2d
1321 (S.D. Ala. 2005) [applying disentitlement doctrine where claimant subsequently indicted]. The
doctrine applies to 28 USC §2466 proceedings even where the person in the federal civil forfeiture
proceeding is a fugitive from state court proceedings. U.S. v. $6,190 in U.S. Currency, 581 F.3d 881, 885–
88 (9th Cir. 2009) [state indictment was based upon same actions that gave rise to federal indictment and
civil forfeiture].
10.h. Actions for Return of Property—Litigation may be initiated to return property under 28 USC §1331 and
a claimant has a right to jury trial where property seized on land. U.S. v. One 1976 Mercedes Benz 280S,
618 F.2d 453, 459 (7th Cir. 1980). A claimant also has a right to initiate a collateral due process attack on
forfeiture where no notice was received. U.S. v. Giraldo, 45 F.3d 509 (1st Cir. 1995).
10.i. Eighth Amendment Applies for Excessive Fines—Excessive nature of the forfeiture may be litigated.
Austin v. U.S., 509 U.S. 602 (1993) [Eighth Amendment’s “excessive fine” language applies to civil
forfeiture proceedings]. See also U.S. v. Bajakajian, 524 U.S. 321 (1998) [forfeiture of full amount of
money sought to be transported out of the country ($357,144) was excessive fine Page 405 under Eighth
Amendment, where action was based on in personam jurisdiction arising from criminal statute]; U.S. v.
One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994). But see U.S. v. George, 779 F.3d 113, 122-
24 (2d Cir. 2015) [rejecting Eighth Amendment claim and comparison to Bajakajian where house was
forfeited under 18 USC §982(a)(6)(A) for harboring a housekeeper at the forfeited home].
10.j. Attorney’s fees—Attorney’s fees are recoverable by the claimant “in any civil proceeding to forfeit
property … in which the claimant substantially prevails.” 28 USC §2465 (b)(1). Fees are not limited to the
statutory hourly cap under EAJA. U.S. v. $60,201 in U.S. Currency, 291 F.Supp.2d 1126, 1129–30 (C.D.
Cal. 2003) [granting prevailing market hourly rates of $300 and $225 per hour]. Prior to the Civil Asset
Forfeiture Reform Act of 2000, which now provides for attorney’s fees, a claimant could recover fees
under EAJA where forfeiture was not substantially justified. U.S. v. Marolf, 277 F.3d 1156 (9th Cir. 2002)
[forfeiture without notice, argument that claimant’s motion was barred by laches, and record as a whole
demonstrated government lacked substantial justification]; U.S. v. One 1984 Ford Van, 873 F.2d 1281 (9th
Cir. 1989) [no substantial justification where government seized van even though transportation of the
alien was not in furtherance of illegal status]; U.S. v. One 48 Foot White Colored Sailboat Named
Libertine, 59 F.Supp.2d 362, 365–66 (D.P.R. 1999); U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D. Pa.
1997); U.S. v. One 1984 Chevrolet Truck, 701 F.Supp. 213 (N.D. Ga. 1988); Doe v. U.S., 16 Cl. Ct. 412
(Ct. Cl. 1989); WSB ¶18,677a.16. See also U.S. v. Certain Real Property at 2323 Charms Rd., 728
F.Supp. 1326 (E.D. Mich. 1990) [in drug related seizure magistrate’s issuance of seizure warrant does not
make government position substantially justified]. But see U.S. v. B&M; Used Cars, 860 F.2d 121 (4th Cir.
1988).
10.k. Foreign Forfeiture or Confiscation Judgments—Under CAFRA, 28 USC §2467(d)(3), federal district
courts were given the authority to issue TROs to “preserve the availability of property subject to a foreign
forfeiture or confiscation judgment.” 28 USC §2467(d)(3)(A). This provision has been interpreted, at least
by one circuit, to permit the U.S. government to seek to freeze assets on behalf of a foreign government
only after a foreign court has entered a forfeiture judgment. In re Any & All Funds or Other Assets, in
Brown Brothers Harriman & Co. Account #8870792 in the Name of Tiger Eye Invs. Ltd., et al., 613 F.3d
1122 (11th Cir. 2010).
E. Failure to Register—8 USC §1306(a). Although unlawful presence, per se, is not a federal crime, willful failure
to register is a crime. DHS agents often use this statute and/or 8 USC §1304(e) as a pretext for arresting
persons who do not have documents immediately available on their person as the latter statute appears to
require. But see U.S. v. Mendez-Lopez, 528 F.Supp. 972 (N.D. Okla. 1981) [undocumented border-crosser who
had not registered and been fingerprinted or issued registration document could not be charged under §1304(e)
for failure to have such document in his possession].Documents that constitute evidence of registration are
found at 8 CFR §264.1(b) [including an admission or parole stamp in a foreign passport].
F. Aiding or Assisting Inadmissible Persons to Enter—INA §277, 8 USC §1327. A person is subject to a
potential 10-year sentence for knowingly aiding or assisting a person to enter the U.S., if that person is
inadmissible on criminal or security grounds. Knowing that the inadmissible person has a prior felony conviction
is not an element of the crime. U.S. v. Flores-Garcia, 198 F.3d 1119 (9th Cir. 2000) [government need only prove
that the defendant knew the person was inadmissible].
G. Marriage Fraud—INA §275(c), 8 USC §1325(c). Imprisonment for up to 5 years and $250,000 fine.
Government must prove: (1) the person knowingly entered into a marriage; (2) the marriage was entered into for
the purpose of evading a provision of the immigration laws; and (3) the person knew or had reason to know of
the immigration laws. U.S. v. Islam, 418 F.3d 1125, 1128 (10th Cir. 2005) [reasonable jury could have found that
marriage was entered into to evade immigration laws and that defendant knew he was violating immigration
laws]; U.S. v. Darif, 446 F.3d 701, 709–11 (7th Cir. 2006) [no need to establish that parties did not intend to have
a life together because defendant could have so intended but still entered the marriage to evade immigration
laws]; U.S. v. Vickerage, 921 F.2d 143 (8th Cir. 1990) [upholding conviction where parties knew each other, had
sex before and after marriage, but marriage was one of convenience]. But see U.S. v. Orellana-Blanco, 294 F.3d
1143, 1148–52 (9th Cir. 2002) [reversing conviction where admission of defendant’s statement to INS was
improper and prejudicial; Page 406 in regard to conflicting evidence, the court stated: “An intent to obtain
something other than or in addition to love and companionship from that life does not make a marriage a sham”].
However, the government is not required to prove that the defendant knew of the specific immigration statute
violated. U.S. v. Chowdhury, 169 F.3d 402, 406–07 (6th Cir. 1999) [relying on decision on willful conduct in Bryan
v. U.S., 524 U.S. 184 (1998)]. Can also be charged with conspiracy to defraud the government by aiding and
abetting others to enter into fraudulent marriages. U.S. v. Anwar, 428 F.3d 1102 (8th Cir. 2005) [defendant
solicited female acquaintances to marry Pakistani men to allow the men to evade immigration laws]. Marriage
fraud under 8 USC §1325(c) is not a continuing offense and ends for statute of limitation purposes when the
marriage is performed because actions occurring after the marriage do not constitute elements of the offense.
U.S. v. Ongaga, 820 F.3d 152, 159-61 (5th Cir. 2016) [marriage fraud conviction reversed on statute of
limitations grounds because marriages occurred more than 5 years before the charges were brought]. But
conspiracy to commit marriage fraud looks to the last overt act in the conspiracy and if it is a single scheme, the
last overt act of the scheme governs the limitations period. Ashraf v. Lynch, 819 F.3d 1051 (8th Cir. 2016) [where
respondent was convicted of conspiracy under 18 USC §371 to commit marriage fraud under 8 USC §1325(c)
his submission of the I-751 was an overt act that occurred within 5 years and triggered removal]; U.S. v. Stewart,
744 F.3d 17 (1st Cir. 2014) [where conspiracy to commit marriage fraud was charged under 18 USC §371 filing
the I-751 was an overt act in furtherance of the conspiracy and therefore the fraudulent marriage was not the
last overt act].
H. Fraudulent Documents for Entry / False Statements [18 USC §1546(a)]
1. Marriage Fraud—Marriage fraud charge possible where alien falsely stated (on I-485/I-130) that he and wife
were living together. U.S. v. Al-Kurna, 808 F.2d 1072 (5th Cir. 1987); U.S. v. Bartle, 835 F.2d 646 (6th Cir.
1989); U.S. v. Silien, 825 F.2d 320 (11th Cir. 1987) [rejecting selective prosecution claim based on failure to
prosecute USC spouses]. But see U.S. v. Qaisi, 779 F.2d 346 (6th Cir. 1985) [not material fact that parties not
living together because separation not test]. To obtain conviction applicants have to make false statement
under oath. U.S. v. Chu, 5 F.3d 1244 (9th Cir. 1993). Statement has to be made in an application, affidavit, or
other documents required by immigration law or regulation, and the defendant must know the statement was
false. Statement must be materially false. U.S. v. Samuels, 874 F.3d 1032 (8th Cir. 2017) [failure to disclose
on I-130 that the petitioner had filed a previous I-130 was material under Kungys standard]; U.S. v. Kone, 307
F.3d 430, 434–36 (6th Cir. 2002) [applying Kungys materiality standard in arranged marriage cases]. There is
some confusion among the courts as to the significance of a marriage that is valid under state law even if
entered into for a fraudulent purpose. Compare U.S. v. Elzahabi, 517 F.Supp.2d 1121 (D. Minn. 2007), aff’d
on other grounds, 557 F.3d 879, 885–86 (8th Cir. 2009) [the validity of a marriage is not a defense to
knowingly procuring a green card by means of any false claim or statement or otherwise procuring it by fraud]
with U.S. v. Diogo, 320 F.2d 898 (2d Cir. 1963) [technical validity of the marriage was a defense to charges
under 18 USC §§1546 and §1001].
2. Fraudulent Documents Used for Entry—This section of the statute only applies to “documents whose
primary raison d’être is the facilitation of entry into the country.” U.S. v. Campos-Serrano, 404 U.S. 293, 299
(1971). It must cover a document involving entry, stay or employment and a fraudulent procured driver’s
license is therefore not covered. U.S. v. Wei Lin, 738 F.3d 1082 (9th Cir. 2013) [reversing conviction for
fraudulently possessing CNMI driver’s license]. A prior version of the statute did not permit a conviction for
possession of a fraudulent passport from a nonexistent country. U.S. v. Fox, 766 F.Supp. 569 (N.D. Tex.
1991); U.S. v. Vargas, 380 F.Supp. 1162 (E.D.N.Y. 1974). The amended statute in 1986 provides for a
conviction for someone found to possess a foreign counterfeit passport. U.S. v. Rahman, 189 F.3d 88, 118–
19 (2d Cir. 1999) [noting that the 1986 amendment to §1546 eliminated the language that a document must
be “required” for entry and replaced it with language making it illegal to possess a fraudulent document that is
“prescribed by statute or regulation” for entry]; U.S. v. Osiemi, 980 F.2d 344 (5th Cir. 1993) [same in regard to
fraudulent passport even where it did not contain a visa]. It may not include a fraudulent U.S. passport or
U.S. passport cards. U.S. v. Thomsen, 830 F.3d 1049, 1057-63 (9th Cir. 2016). It may also include predicate
documents such as labor certifications and I-140s. U.S. v. Ryan-Webster, 353 F.3d 353 (4th Cir. 2003)
[upholding conviction for fraudulent drafting of ETA-750s and I-140s by lawyer]; but see U.S. v. Phillips, 543
F.3d 1197, 1205–08 (10th Cir. 2008) [ETA-750s and I-589 applications are not “other document[s] prescribed
by statute or regulation for entry into or as evidence of authorized stay or employment in the United States”
under 18 USC §1546(a)].Use of rubber stamp does not constitute “impression” for purpose of statute. U.S. v.
Naaman, 813 F.2d 1577 (9th Cir. 1987). Page 407 A person may be convicted for aiding and abetting even if
the actual NIV or IV applicant lacked criminal intent. U.S. v. West Indies Transp., Inc., 127 F.3d 299, 306–07
(3d Cir. 1997) [employer liable for aiding workers to obtain D-1s where they were working dry-dock and
workers did not have criminal intent]. However, constructive possession may be sufficient. U.S. v. Campa,
529 F.3d 980, 1003–04 (11th Cir. 2008) [fraudulent passport bearing defendant’s name with instructions
found in co-defendant’s drawer was sufficient for constructive possession]. A person may also be convicted
under subsection “(a)” for fraudulently procuring a valid entry document. U.S. v. Kouevi, 698 F.3d 126 (3d Cir.
2012) [also finding rule of lenity inapplicable to existence of “some statutory ambiguity”]; U.S. v. Krstic, 558
F.3d 1010 (9th Cir. 2009). Because unlawful entry is not an element of the crime, evidence of unlawful entry
may be excluded as prejudicial. U.S. v. Amaya-Manzanares, 377 F.3d 39, 45–46 (1st Cir. 2004)[reversing
conviction in possession of fraudulent green card case where judge allowed relevant but prejudicial evidence
that defendant made an unlawful entry].
2.a. Asylum Defense—Prosecuting a refugee for false documents may not be in violation of the U.N.
Convention and Protocol Relating to the Status of Refugees. U.S. v. Malenge, 472 F.Supp.2d 269
(N.D.N.Y. 2007) [where defendant did not seek asylum at border and did not disclose that false passport
was used to flee the Congo, court declined to dismiss indictment as violation of the Refugee Convention];
U.S. v. Barry, 500 F.Supp.2d 125 (N.D.N.Y. 2007) [where defendant presented false passport at border
and after being detained stated she was trying to get to U.S. to flee persecution, it did not violate the
Convention and Protocol to prosecute her].
2.b. Statute of Limitations Defense—At least one court has found that “use” of an immigration document
“knowing it to be forged, counterfeited, altered, or falsely made” or “use” of a document “procured by fraud
or unlawfully obtained” is not a continuing offense for statute of limitation purpose. U.S. v. Tavarez-
Levario, 788 F.3d 433 (5th Cir. 2015) [the 5-year statute of limitations had run by Mar. 26, 2014 when the
defendant was indicted for presenting a counterfeit green card and Social Security card to his employer
on Feb. 2, 2009 because “use” of a document is not a continuing offense]
3. False Statements on Application Submitted to DHS—Requires that a defendant knowingly make a false
material statement under oath in an application required by DHS statute or regulation. U.S. v. Zhen Zhou Wu,
711 F.3d 1, 29-31 (1st Cir. 2013) [failure to disclose complete employment history which would have indicated
ineligibility for residency under Kungysstandard]; U.S. v. O’Connor, 158 F.Supp.2d 697, 720–21 (E.D. Va.
2001) [fraud in applications for investors under the EB-5 program]. See also U.S. v. Katkhordeh, 477 F.3d
624 (8th Cir. 2007) [evidence of marriage in Iran sufficient to uphold conviction for fraud in visa application as
unmarried son].
A violation of the statute also arises where a defendant knowingly presents an application or document
required by the immigration laws that he knows contain a false statement as to a material fact. U.S. v. Bart,
888 F.3d 374 (8th Cir. 2018) [visa fraud to bring H-2A workers to U.S. and require them to pay recruitment
fee, travel costs, and kickbacks on their wages]; U.S. v. Archer, 671 F.3d 149 (2d Cir. 2011) [immigration
lawyer presented fraudulent I-687 “Newman” legalization applications on behalf of clients]. But see U.S. v.
Causevic,636 F.3d 998 (8th Cir. 2011) [court erred in admitting conviction record of in absentia order for
murder to prove false statement on I-485 in case under 18 USC §1001(a)(2) and 18 USC §1546(a) because
the order is testimonial under Crawford and Kirby v. U.S., 174 U.S. 47 (1899)].
Both the “knowingly makes” provision as well as the “knowingly presents” provision require that the statement
be made under oath. U.S. v. Ashurov, 726 F.3d 395 (2d Cir. 2013) [relying on the Rule of Lenity the court
reversed a conviction for knowingly presenting an I-20 that contained false statements because it was not
made under oath as required by 18 USC §1546(a)].
3.a. Suppression of Statement; Voluntariness of Statement—U.S. v. Boskic, 545 F.3d 69 (1st Cir. 2008)
[defendant’s Fifth and Sixth Amendment rights were not violated in prosecution under 18 USC §1546 for
making false statements on refugee application (I-590) and on I-485, where Joint Terrorism Task Force
staged interview on defendant’s request for a travel document with knowledge that he had lied on his
original applications].
4. Materiality—At least one court has found that materiality must be judged based upon the entire immigration
process and not one single document. U.S. v. Wu, 419 F.3d 142 (2d Cir. 2005) [where Page 408 I-864
contained false statements that were not material, government can still convict by showing that I-864 was
part of the larger process of falsely petitioning, through the use of an I-130 petition]. On the question of
materiality, the defendant in a criminal proceeding is entitled to a jury trial. U.S. v. Severino, 724 F.Supp.2d
240 (D.P.R. 2010) [rejecting DHS claim that it is a legal issue to be decided by the court]. Materiality does
not, in the view of one circuit, require the government to show that a true statement would have made the
defendant statutorily ineligible for the visa. U.S. v. Pirela Pirela, 809 F.3d 1195 (11th Cir. 2015) [relying
instead on the natural tendency language in Kungys].
5. Scope—Section 1546(a) covers not only false statements, but also the presentation of a document that “fails
to contain any reasonable basis in law or fact.” IIRIRA §214. Cases usually involve multiple charges of mail
fraud, alien smuggling, forced labor, trafficking in forced labor and money laundering. U.S. v. Kalu, 791 F.3d
1194 (10th Cir. 2015) [upheld conviction in 95-count indictment in fraudulent scheme to bring H-1B nurses
into the U.S.].
6. Includes All Fraudulent Immigration-Related Documents—Statute includes knowingly accepting and

receiving counterfeit immigration documents as evidence of employment authorization. U.S. v. DeCruz, 82
F.3d 856 (9th Cir. 1996). See also U.S. v. Uvalle-Patricio, 478 F.3d 699 (5th Cir. 2007) [statute includes the
possession of blank I-551 permits even if they were fraudulent]. A person may be convicted under a
deliberate indifference standard. U.S. v. DeCruz, 82 F.3d at 865–66. Willfulness is not required. U.S. v. Polar,
369 F.3d 1248, 1252–55 (11th Cir. 2004).
7. Statute of Limitations—In the view of one court, the crime is possession of a fraudulent document even if
the basis for the charge is a false statement in obtaining the document, and therefore the statute of
limitations continues to run as long as the defendant possesses the document. U.S. v. Kristic, 558 F.3d 1010
(9th Cir. 2008) [failure to disclose military service in Serbia in 1998-99 on I-485 does not bar prosecution in
2007 because defendant possessed I-551 document within 5 years of prosecution].
8. Judge’s Improper Comments—In U.S. v. Lefsih, 867 F.3d 459, 466-71 (4th Cir. 2017) the Court vacated
the conviction for false statements on a naturalization application where the judge’s comments regarding the
Diversity Visa program under which defendant originally entered the country rose to the level of plain error
that substantially prejudiced defendant’s right to a fair trial.
9. Penalties—The penalty for violation of §1546(a) is up to 25 years if committed to facilitate international

terrorism; up to 20 years if committed to facilitate drug trafficking; up to 15 years if more than the second
offense; and up to 10 years if first or second offense. An alternative to criminal incarceration, particularly
when dealing with large multinational corporations, is the use of heavy fines as penalties. News Release,
ICE, Indian Corporation Pays Record $34 Million Fine to Settle Allegations of Systemic Visa Fraud and
Abuse of Immigration Processes (Nov. 2013), AILA Doc. No. 13110458 [fining Infosys Limited $34 million for
fraudulent use of B-1s, deceit of consular officers, and other issues related to persons who should have
properly entered as H-1Bs].
I. Establishing Commercial Enterprise to Commit Immigration Fraud—INA §275(d), 8 USC §1325(d).

Whoever knowingly establishes a commercial enterprise for the purpose of evading any provision of the
immigration laws shall be imprisoned not more than 5 years and fined.
J. Identification Document Fraud—18 USC §1546(b). Whoever uses an identification document knowing that the
document was not issued lawfully or is false or whoever submits a false attestation for purposes of satisfying the
requirements for I-9/employer verification is guilty of violating this subsection. A Social Security card in the view
of one court is not an identification document for purposes of this section. U.S. v. Tyson Foods, Inc., 258
F.Supp.2d 809, 812–19 (E.D. Tenn. 2003). At least one court has allowed the use of information from a spouse
who battered the alien to obtain a conviction for a false I-9. U.S. v. Maswai, 419 F.3d 822 (8th Cir. 2005)
[rejecting argument that 8 USC §1367, prohibiting the use of information about a battered spouse in removal
proceedings, applied to an action under 18 USC §1546]. Penalties for violating §1546(b) include fine and
imprisonment for not more than 5 years.
K. Fraud and Related Activity in Connection with Identification Documents [18 USC §1028]
1. Generally—Includes knowingly and without lawful authority producing, transferring, possessing or

possessing with intent to use an identification document or false identification document which Page 409
appears to be issued by or under the authority of the U.S., a state, foreign government or international
governmental or generic governmental organization. 18 USC §1028(a). A person also violates the statute
when she “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of
another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that
constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.” 18
USC §1028(a)(7). Penalty may be up to 15 years or up to 20 if used to facilitate drug crime and up to 30 if
used to facilitate terrorism. Enhanced penalties are provided for under §1028(b)(1) and (b)(2) but do not
apply to §1028(a)(4) and (a)(6). See Memo, Duff, Director, Admin. Office of the U.S. Courts (Dec. 19, 2008),
AILA Doc. No. 09021964. To obtain a conviction, there must be “a sufficient connection between the
defendant and the contraband to support the inference that the defendant exercised dominion and control
over the substance.” U.S. v. Barajas-Montiel, 185 F.3d 947, 955–56 (9th Cir. 1999) [reversing conviction
where documents found in vase in defendant’s bedroom that was also used and occupied by other persons].
See also U.S. v. Campa, 529 F.3d 980, 1003–04 (11th Cir. 2008) [fraudulent passport bearing defendant’s
name with instructions found in co-defendant’s drawer was sufficient for constructive possession].
2. “Identification document” —Specifically defined under the statute to mean “a document made or issued by
or under the authority of the United States Government, a State, political subdivision of a State, a sponsoring
entity of an event designated as a special event of national significance, a foreign government, political
subdivision of a foreign government, an intentional governmental or an international quasi-governmental
organization which, when completed with information concerning a particular individual, is of a type intended
or commonly accepted for the purpose of identification of individuals,” 18 USC §1028(d)(3). U.S. v. Singh,
335 F.3d 1321 (11th Cir. 2003) [conviction involving driver’s licenses, military identification cards, and U.S.
government identification cards].
3. “Means of Identification”—Includes a “Social Security number, date of birth, official State or government
issued driver’s license or identification number, alien registration number, government passport number,
employer or taxpayer identification number.” 18 USC §1028(d)(7) .
L. Aggravated Identity Theft in Conjunction with Immigration and Other Crimes—18 USC §1028A; H. Rep.
108-528 (2004), U.S.C.C.A.N. 2004, p. 779–86. A person who transfers, possesses or uses the “means of
identification” of another person during the commission of various felonies including false claim to USC, failure to
depart, failure to register, false documents, employer sanctions, nationality related criminal conduct, or alien
smuggling will receive an enhanced consecutive and mandatory penalty of 2 years, and, if related to terrorism, 5
years consecutive to the sentence for the underlying crime. U.S. v. Rodriguez-Ayala, 773 F.3d 65, 67-68 (8th Cir.
2014) [use of brother’s name, date of birth and names of parents to obtain ID card and U.S. passport]. The
statute, for example, provides for possession of the identification of another during and in relation to a violation
of 8 USC §1326 regarding entering or being found in the U.S. U.S. v. Crounsset, 403 F.Supp.2d 475 (E.D. Va.
2005) [upholding conviction for using another person’s “A” number to illegally re-enter]. For a definition of
“identification document” and “means of identification,” see H supra. Government must prove that a defendant
knew that the means of identification unlawfully transferred, possessed or used belonged to another person.
Flores-Figueroa v. U.S., 556 U.S. 646 (2009). Cf. U.S. v. Doe a.k.a. Hagla, 661 F.3d 550 (11th Cir. 2011)
[repeatedly and successfully testing the authenticity of the information taken from another before committing
passport fraud with the person’s identity, such as obtaining a driver’s license and opening an account with the
person’s identity, is sufficient circumstantial evidence that defendant “knew” the information belonged to
another]. Double jeopardy issues are potentially raised in 1028A convictions. U.S. v. Bonilla, 579 F.3d 1233,
1239–43 (11th Cir. 2009) [conviction for 18 USC §1028(a)(7) and §1028A constituted multiple punishments in
violation of the Double Jeopardy Clause]. “Another person” encompasses both living and deceased persons in
the view of some circuit courts. See e.g., U.S. v. Maciel-Alcala, 612 F.3d 1052 (9th Cir. 2010) [and cases cited
therein]. See also U.S. v. Thawer, No. 3:15-cr-63 (N.D. Tex. 2015) [immigration lawyer sentenced to two years
after pleading guilty to one count of aggravated identity theft by forging the name and badge number of a local
police officer to complete a document for a U visa].
M. Knowing and Willful Use of a False Passport—18 USC §1543. Permits the prosecution of a person carrying
a false passport from any country, not just the U.S. U.S. v. Dangdee, 616 F.2d 1118, 1119 (9th Cir. 1980); U.S. v.
Simo, 68 F.Supp.2d 706 (E.D. Va. 1999) [and cases cited therein]. Political asylum is not a duress defense
unless defendant can show he had no legal alternative. Simo, supra. Page 410
N. Knowing and Willful False Statement to Obtain U.S. Passport—18 USC §1542. Includes securing a
passport through a false statement and making a false statement in an application for a passport. U.S. v.
Sarwari, 669 F.3d 401 (4th Cir. 2012) [step-father who listed himself as the father on his step-children’s
application for U.S. passports was convicted despite the lack of the definition of “father” on the passport
applications]; U.S. v. Connors, 441 F.3d 527, 531 (7th Cir. 2006) [upholding conviction where defendant’s
passport was confiscated at U.S.-Canadian border and he applied for a new one stating his previous passport
was “missing”]; U.S. v. Suarez-Rosario, 237 F.3d 1164 (9th Cir. 2001) [no need to prove real identity of
defendant, only that he useda false statementto obtain a passport]. Materiality is not an element of the crime in
the view of several circuits. U.S. v. Lebreault-Feliz, 807 F.3d 1, 5-6 (1st Cir. 2015) [providing a false name as the
parent of a USC to obtain a U.S. passport for the USC is nevertheless a violation of §1542 because materiality is
not an element of the crime]; U.S. v. Meredith, 685 F.3d 814, 824 (9th Cir. 2012) [materiality is not an element
and government need only prove a willful false statement]; U.S. v. Hasan, 586 F.3d 161, 166–67 (2d Cir. 2009)
[and cases cited therein]; U.S. v. Najera Jimenez, 594 F.3d 391, 398–99 (5th Cir. 2010) [all that is required is that
the statement be made knowingly and willfully to obtain a passport]. It is not a specific intent crime and “willfully”
and “knowingly” under the statute does not require that the defendant knew her actions were unlawful. U.S. v.
Aifang Ye, 808 F.3d 395, 398-401 (9th Cir. 2015). At least one court has found that the statute covers false
statements made in accompanying documents. U.S. v. Baum, 380 F.Supp.2d 187, 204 (S.D.N.Y. 2005) [forgery
of ex-husband’s signature on letter for child’s passport is part of passport application by virtue of 22 CFR
§51.20]. And a party may be convicted of aiding and abetting in the making of a false statement on a passport
application. U.S. v. Churchwell, 807 F.3d 107, 115-16 (5th Cir. 2015) [government employee may be held for
aiding and abetting for accepting and certifying as true another’s passport application that he knew contained
false statements]. Duress is an affirmative defense. U.S. v. Lebreault-Feliz, 807 F.3d 1, 3-5 (1st Cir. 2015)
[defendant failed to establish duress because there was a six-month period between the death threats forcing
him to leave the Dominican Republic and his request for a U.S. passport while in a third country].
O. Destruction of Official Documents—18 USC §2071(a). Willfully and unlawfully destroying or causing another
person to destroy or attempt to destroy any record, paper document or other thing filed or deposited in a public
office or with any public officer of the United States. U.S. v. Salazar, 455 F.3d 1022 (9th Cir. 2006) [upholding
conviction of contract supervisor at California Service Center who directed others to shred thousands of
documents that were scheduled to be interfiled in A files].
P. False Statements—18 USC §1001. Any false or fraudulent material misrepresentation regarding the actual
purpose of a marriage in order to gain status may violate 18 USC §1001. U.S. v. Gaudin, 515 U.S. 506 (1995);
U.S. v. Wei Lin, 738 F.3d 1082, 1084-85 (9th Cir. 2013) [upheld conviction where immigration agent asked
defendant if he had identity document and photocopy of a driver’s license was seized after he said he did not];
U.S. v. Najera Jimenez, 594 F.3d 391, 399–401 (5th Cir. 2010) [defendant denying that she had heard from the
government on a previous passport application was sufficient to supply materiality]; U.S. v. Zalman, 870 F.2d
1047, 1055 (6th Cir. 1989). This includes an exculpatory denial during the course of questioning. Brogan v. U.S.,
522 U.S. 398 (1998) [rejecting exculpatory no doctrine]. False ID at U.S. border is punishable under 18 USC
§1001. U.S. v. Popaw, 821 F.2d 483 (8th Cir. 1987). So too is a material misrepresentation on a refugee
registration (I-590) document. U.S. v. Knox, 540 F.3d 708 (7th Cir. 2008) [upholding conviction of Liberian who
failed to disclose he was a member of a political group]. Aiding and abetting in a false statement to a DHS officer
that is material in the course of an investigation is a violation of §1001. U.S. v. Mitchell, 388 F.3d 1139 (8th Cir.
2004) [person aided alien who was smuggled into U.S. for sex but who falsely said she was raped]. However,
cannot convict where statement is not literally false. U.S. v. Moses, 94 F.3d 182, 188 (5th Cir. 1996). Also cannot
use testimonial evidence to convict without the right to cross-examine party making the statement. U.S. v.
Causevic, 636 F.3d 998 (8th Cir. 2011) [court erred in admitting conviction record of in absentia order for murder
to prove false statement on I-485 in case under 18 USC §1001(a)(2) and 18 USC §1546(a) because the order is
testimonial under Crawford and Kirby v. U.S., 174 U.S. 47 (1899)].
Q. Perjury—18 USC §1621(1). U.S. v. Kantengwa, 781 F.3d 545 (1st Cir. 2015) [Rwandan found guilty of perjury
notwithstanding that she was granted asylum after IJ found that false statements did not go to heart of her claim;
collateral estoppel did not apply because her statements were materially false even if insufficient to deny
asylum]. Page 411
R. Obstruction of Proceedings Before Federal Departments and Agencies—18 USC §1505. U.S. v.
Kantengwa, supra [found obstruction on same facts].
S. Failure to Disclose Role as Document Preparer—It is a crime punishable up to 5 years to knowingly and
willfully fail to disclose, conceal, or cover up the fact that a person has prepared or assisted in the preparation of
a falsely made application for immigration benefits for a fee or other remuneration. INA §274C(e), 8 USC
§1324c(e), 28 CFR §68.52(e).
T. False Claim to U.S. Citizenship—See Chapter 13, Section B (p.2205), infra.
U. Voting in Federal Election—18 USC §611. It is unlawful for an alien to vote in a federal election unless: (1) the
defendant’s parents were or are USCs; (2) the person permanently resided in the U.S. prior to 16; and (3) the
person reasonably believed at the time of voting that she was a USC. The exception is applied retroactively and
applies to persons prosecuted on or after Sept. 30, 1996, unless criminal proceedings were concluded before
Oct. 30, 2000. One circuit has found the appropriate mens rea for conviction is general (not specific) intent to
engage in prohibited conduct and therefore intentionally knowing his conduct was wrong is not a necessary
element. U.S. v. Knight, 490 F.3d 1268 (11th Cir. 2007). There may however be an “entrapment by estoppel”
defense which in immigration law the Seventh Circuit has characterized as an “official authorization” defense.
Keathley v. Holder, 696 F.3d 644 (7th Cir. 2012) [where applicant presented herself as a noncitizen to DMV office
and was presented with motor-voter forms and was told she could vote, her voting may not be an excludable
offense because it was “officially authorized” and therefore could not be a violation of federal law]; See also
Matter of ___, A089 490 425 (Sept. 10, 2013 Chicago), AILA Doc. No. 13091646. But see Fitzpatrick v.
Sessions, 847 F.3d 913 (7th Cir. 2017) [upholding deportation and clarifying that Keathley only applies where a
person has given complete and accurate representations to a public official and receives permission from that
official who is acting within the scope of his or her authority]; Kimani v. Holder, 695 F.3d 666 (7th Cir. 2012).
V. Employer Sanctions—INA §274A, 8 USC §1324a. IRCA makes it unlawful to “knowingly” hire, recruit, or refer
for a fee an alien not authorized to be employed. Employees employed before Nov. 7, 1986, are grandfathered.
Civil penalties for first, second, and third offenses; criminal penalties for pattern-or-practice violations. There is
also a criminal penalty under INA §274 for hiring 10 or more aliens in a 12-month period knowing they are not
authorized to work and that they entered the U.S. illegally, U.S. v. Calhelha, 456 F.Supp.2d 350, 363 (D. Conn.
2006) [facts sufficient to allege pattern or practice for person who arranged employees from Portugal to work at
franchise stores]. Civil fines also for failure to complete and retain verification forms. See Chapter 12, ¶ IX.A.3
(p.2094), infra.
W. Failure to Depart After Deportation Order or Hampers Deportation—INA §243, 8 USC §1253. Willful failure
to depart U.S. within 90 days of final deportation order or to present oneself pursuant to bag and baggage letter
is a felony punishable up to 4 years (or 10 years if person is deportable under smuggling, criminal offense,
security, or failure to register/falsification of documents grounds). This provision has been used to indict and
convict a detainee when making a false claim to U.S. citizenship in an effort to be released from detention under
INA §243(a) and 8 USC §1101. Leslie v. Herrion, 677 F.Supp.2d 651 (W.D.N.Y. 2010) [conviction of person in
custody for falsely claiming to be a U.S. citizen when requesting release from detention]; U.S. v. Ayeni, 66
F.Supp.2d 617 (M.D. Pa. 1999) [collateral attack on deportation order is permissible]. The court may suspend
the sentence based on criteria under the statute. One section includes conspiracy to take any action to prevent
the person’s departure. 8 USC §1253(a)(1)(C). U.S. v. Talbot, 22 F.Supp.3d 419 (M.D. Penn. 2014) [finding that
defendant thrice resisted physical deportation and rejecting his justification defense that he feared death and
imprisonment]. If the validity of a removal order has not previously been decided, a person charged with a crime
under §1253 may challenge the order by filing a motion before trial with the court. INA §242(b)(7)(A), 8 USC
§1252(b)(7)(A). One court has recognized a necessity defense, where person denied asylum, but is afraid to
return to his home country. U.S. v. Kpomassie, 323 F.Supp.2d 894 (W.D. Tenn. 2004) [person ordered deported
who willfully resisted physical deportation may have a necessity defense as removal proceedings and criminal
proceeding are separate].
X. Willful Failure to Make Timely Application for Travel Documents—INA §243(a)(1)(B), 8 USC §1253(a)(1)
(B). It is a federal crime to “willfully fail[ ] or refuse[ ] to make timely application in good faith for travel or other
documents necessary to the alien’s departure.” 8 USC §1253(a)(1)(B). U.S. v. Ashraf, 628 F.3d 813 (6th Cir.
2011) [conviction upheld for refusal to complete passport application for Page 412 Pakistan despite defendant’s
good faith claim he was a Kuwaiti citizen who thought he was still challenging his removal]. It has also been
used to indict person who refused to accompany ICE to consulate to pick up passport. U.S. v. Laguna, 693 F.3d
727 (7th Cir. 2012) [rejected instruction that defendant believed he would not be prosecuted based upon ICE’s
prior lenient conduct]. A person under this section may also challenge the validity of the underlying removal
order pursuant to INA §242(b)(7)(A). U.S. v. Yan Naing, 820 F.3d 1006 (8th Cir. 2016) [allowing challenge but
rejecting due process challenges to deportation order and also rejecting coercion defense]; U.S. v. Muszczuk,
847 F.Supp.2d 227 (D. Mass. 2012) [post-Padilla court dismissed indictment of 74 year-old LPR charged with 5
counts because the IJ failed to make clear findings of removability].
Y. Willful Failure to Comply with Terms of Release Order—INA §243(b), 8 USC §1253(b). When a person is
released pursuant to INA §241(a)(3), 8 USC §1231(a)(3), and willfully fails to comply with regulations and
requirements under the section, or knowingly gives false information in response to an inquiry under the section,
he may be imprisoned not more than one year and fined not more than $1,000. U.S. v. Nguyen, 465 F.3d 1128,
1130–31 (9th Cir. 2006) [where supervised release order required respondent to not “commit any crimes,” his
nolo contendere pleas were insufficient to establish guilt].
Z. Amnesty and SAW Fraud—Under INA §§210(b)(7)(A), 245A(c)(6), 8 USC §§1160(b)(7)(A), 1255a(c)(6), the
filing of false applications or the creating of false documents for amnesty or SAW applicants is a criminal
offense. U.S. v. Sanchez, 927 F.2d 376 (8th Cir. 1991).
AA. Escape from Removal—An escape from custody of U.S. officers where there was a lawful arrest for removal
is punishable by a $1,000 fine or one-year imprisonment. 18 USC §751(a). Requires that the defendant: (1) was
confined in a detention facility at the direction of the AG; (2) for removal proceedings; and (3) escaped from
confinement. U.S. v. Rodriguez-Fernandez, 234 F.3d 498 (11th Cir. 2000) [reversing conviction of Krome
detainee where there was no order, directive or document from the AG directing detention, and the only
evidence was testimony from an INS officer that, after review of the file, he determined detention]. The defense
of duress and necessity has been successfully employed where the person established he would be persecuted
if returned to his country. U.S. v. Dagnachew, 808 F.Supp. 1517 (D. Colo. 1992) [Ethiopian who escaped
immigration detention to avoid persecution in home country was acquitted on grounds of duress]. For ICE
procedures in regard to escape from custody see ICE, Escapes from Custody, 19006.1 (Aug. 16, 2012),
reprinted in 19 Bender’s Immigr. Bull. 1243-45 (Nov. 1, 2014).
BB. EWI; Attempt to Enter—INA §275(a), 8 USC §1325(a). Improper entry at time or place other than designated
port of entry. U.S. v. Aldana, 878 F.3d 877 (9th Cir. 2017) [“designated” port of entry refers to failing to present
oneself at a specific immigration facility and not crossing over anywhere in the entire geographic area
designated around that facility]. The AG has announced a “zero-tolerance” policy regarding criminal EWI. Memo,
AG, Zero-Tolerance for Offenses Under 8 USC §1325(a) (Apr. 6, 2018), AILA Doc. No. 18040636 [directing U.S.
Attorney’s Offices along SW border to implement a zero-tolerance policy “immediately”]. A defendant cannot
collaterally attack validity of a summary exclusion order in this proceeding; however, if the government attempts
to apply a sentencing enhancement under USSG §2L1.2(b) because the defendant was deported after being
convicted of certain crimes, at least one circuit has held that the deportation must be valid. U.S. v. Rodriguez-
Ocampo, 664 F.3d 1275, 1278 (9th Cir. 2011) [declining to apply a sentencing enhancement for a §1325
conviction because “an alien’s physical removal is sufficient to trigger the sentencing enhancements under
USSG §2L.1.2(b) only when the physical removal is premised on an underlying valid order of removal”].
1. Entry—Conviction requires an entry under traditional standards. U.S. v. Yong Jun Li, 643 F.3d 1183 (9th Cir.
2011) [a person who traveled in international waters between Guam and CNMI did not make an entry into the
U.S. because he was traveling from one part of the U.S. to another]; U.S. v. Gonzalez-Torres, 309 F.3d 594,
597–99 (9th Cir. 2002) [where defendant was under observation before crossing the Mexican border his
conviction was reversed as he made no entry].
2. Civil penalty—Any alien apprehended for entering or attempting to enter is subject to a $50–$250 civil
penalty. INA §275(b).
CC. High-Speed Flight from Immigration Checkpoint—18 USC §758. Fleeing or evading a checkpoint in a
motor vehicle above speed limit. Page 413
DD. Failure to Maintain a Green Card—It is a criminal misdemeanor under 8 USC §1304(e) for an LPR to fail to
keep his green card with him at all times.
EE. Aliens in Possession of a Firearm—Under 18 USC §922(g)(5)(A), it is illegal for “an alien … illegally or
unlawfully in U.S.” to possess, ship, transport, or receive any firearm or ammunition. U.S. v. Al Sabahi, 719 F.3d
305, 309-10 (4th Cir. 2013) [filing AOS or obtaining an NSEERS parole does not legalize the person’s presence
in the U.S.]; U.S. v. Mendez, 514 F.3d 1035, 1042–43 (10th Cir. 2008) [evidence was sufficient to find that
defendant was illegal where he was born in Mexico, provided officers with a false SSN, and government had no
evidence of authorization to enter the country]. The Second Amendment is not a defense in the view of at least
two courts. U.S. v. Meza-Rodriguez, 798 F.3d 664, 668-74 (7th Cir. 2015) [undocumented persons may invoke
the Second Amendment, but Congress’s interest in prohibiting persons who are difficult to track or who have
eluded law enforcement overrides, on balance, the Second Amendment right]; U.S. v. Carpio-Leon, 701 F.3d
974 (4th Cir. 2012) [rejected 2nd and 5th Amendment Due Process/Equal Protection challenges by
undocumented person to §922(g)(5)].
To prove a violation, the government must establish that the defendant was an “alien,” that he was unlawfully in
U.S., and that he knowingly possessed a firearm and ammunition in or affecting interstate commerce. U.S. v.
Diaz, 519 F.3d 56, 66 (1st Cir. 2008) [knowing possession may be actual or constructive possession; alienage
and unlawful status may be established by DHS records including warrants and orders of removal by a standard
lower than beyond a reasonable doubt]. A defendant may not be “in” the United States for purposes of §922(g)
(5) if s/he has not affected an entry within the meaning of immigration law. U.S. v. Lopez-Perera, 438 F.3d 932
(9th Cir. 2006) [driver stopped within secondary inspection area at port of entry had not entered free of official
restraint and could not be prosecuted under§922(g)(5)(A)]. The type of ammunition or weapon possessed may
be irrelevant. See e.g., U.S. v. Guidry, 406 F.3d 314, 322 (5th Cir. 2005) [type of weapon not an essential
element of the crime]; U.S. v. Levy, 440 F.Supp.2d 162, 164 (E.D.N.Y. 2006) [type of ammunition not essential].
The mens rea requirement, in the view of one circuit, only applies to knowingly possessing a firearm and does
not require that the government prove that the defendant alien knew he was in unlawful status at the time. U.S.
v. Rehaif, 888 F.3d 1138 (11th Cir. 2018) [upheld conviction where court refused to give a jury instruction that
required the government to prove that the defendant knew he was in unlawful immigration status].
A defendant cannot be charged both under subsection (A) (illegally in U.S.) and (B) (entered on NIV) because
double jeopardy and the statute’s construction prohibit double punishment for the same set of facts. U.S. v.
Elrawy, 448 F.3d 309 (5th Cir. 2006); U.S. v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011) [same];
The prohibition against firearms also applies to NIVs, but certain categories of NIVs (such as diplomats) and
those who enter without visas such as VWPs and Canadian tourists are exempt. 18 USC §§922(g)(5)(B), (y)(2);
27 CFR §478.32(a)(5)(ii), (d)(5)(ii); 77 FR 33625-34 (June 7, 2012); U.S. v. Bazargan, 992 F.2d 844 (8th Cir.
1993) [F-1 student who did not properly transfer schools convicted]. But see U.S. v. Atandi, 228 F.Supp.2d 1285
(D. Utah 2002) [dismissing indictment where IJ found out of status student deportable but did not enter final
order of deportation because student was AOS eligible and was not unlawfully in the U.S.]. Persons who are
EWI without parole status are prohibited from possessing weapons under ATF regulations. 27 CFR §478.11. So
too is a person given a nondeparture order after a grant of voluntary departure. U.S. v. Anaya-Acosta, 629 F.3d
1091 (9th Cir. 2011) [upholding conviction under §922(g)(5)(A) and the attendant regulation 27 CFR §478.11(d)].
A person on bond during removal proceeding is still in illegal or unlawful status for purposes of §922(g)(5). U.S.
v. Bavo-Muzquiz, 412 F.3d 1052 (9th Cir. 2005). Under §478.11 an F-1 student may be regarded as illegally in
the U.S. if his school determined he was out-of-status, even if USCIS or an IJ did not make such a finding. U.S.
v. Rehaif, 888 F.3d 1138 (11th Cir. 2018) [the court, relying on 8 CFR §214.2(f)(5)(i) and 27 CFR §478.11 found
that an F-1 student who was told his status was terminated by his school (and not by IJ/USCIS) was out-of-
status and illegally in the U.S. when he failed to depart or seek reinstatement and was therefore illegally in the
U.S. for purposes of 18 USC §922(g)(5)(A) because it read INA §212(a)(9)(B)(ii) as placing a student in
“unlawful presence” simply “if he remains in the United States after he is no longer enrolled as a full time
student” even if he had D/S]. Applicants for TPS may also not be considered to be in legal status. U.S. v. Flores,
404 F.3d 320 (5th Cir. 2005) [a person who applies for TPS who entered the U.S. illegally may be charged
criminally as an alien illegally or unlawfully in Page 414 the U.S. in possession of a firearm in violation of §922(g)
(5)(A) on the theory that the status does not constitute lawful presence]. However, a person granted TPS is not
an illegal alien or unlawfully in U.S. for purposes of §922(g)(5)(A). U.S. v. Orellana, 405 F.3d 360 (5th Cir. 2005)
[Congress did not intend to criminalize the possession of firearms by persons granted TPS]. But a person whose
application for TPS had been denied was illegally in the country. U.S. v. Ramos-Cruz, 667 F.3d 487, 499-500
(4th Cir. 2012). Persons with DACA are not considered legal for purposes of §922(g)(5)(A). U.S. v. Arrieta, 862
F.3d 512 (5th Cir. 2017) [also rejecting rule of lenity argument]. Persons who have filed for AOS, if otherwise not
lawful in the U.S., are also considered illegal for purposes of the statute even if they have temporary permission
to remain while the AOS application is pending. U.S. v. Latu, 479 F.3d 1153 (9th Cir. 2007), and cases cited
therein; U.S. v. Lucio, 428 F.3d 519 (5th Cir. 2005) [AOS under LIFE Act with employment authorization
convicted under §922(g)(5)(A)]; 27 CFR §478.11(b). But see U.S. v. Bruno-Muzquiz, 412 F.3d 1052, 1054 (9th
Cir. 2005); U.S. v. Hernandez, 913 F.2d 1506, 1513–14 (10th Cir. 1990). Special Immigrant Juveniles are not
considered to be illegally or unlawfully in the U.S. in violation of §922(g)(5)(A). U.S. v. Santiago-Hernandez, 113
F.Supp.3d 966 (W.D. Mich. 2015). For additional information, see in this chapter ¶ V.H.5.c (p.294), supra.
FF. Social Security Fraud—42 USC §408(a)(7)(B). Imprisonment up to 5 years for the use of another person’s
SSN.
GG. Withholding Documents to Further Trafficking in Persons—18 USC §1592. Knowingly destroying,
concealing, removing, confiscating, or possessing any actual or purported passport or other immigration
document or government identification document to prevent or restrict a person’s liberty, without lawful authority,
in order to maintain the person’s labor or services, when the person has been the victim of a severe form of
trafficking (e.g., the use of force, fraud, or coercion for sex trafficking and/or involuntary servitude, peonage, debt
bondage, or slavery). Penalty for conviction is up to 5 years in prison.
HH. International Marriage Brokers—18 USC §1375a(d)(5)(B). An international marriage broker who discloses
information about persons under 18, fails to collect information regarding U.S. client who may have predatory
background or violent criminal history, fails to disclose U.S. client’s background to prospective international
client, or discloses information about international client to a third party is subject to penalties of up to 5 years in
prison.
II. RICO Predicate Offenses—AEDPA §433 and IIRIRA §202 have made certain immigration-related crimes
predicate RICO offenses, even if they were not committed for financial gain. 18 USC §§1028, 1542, 1543, 1544
and 1546. However, in order for immigration-related offenses (INA §§274, 277, and 278; 8 USC §§1324, 1327
and 1328) to be RICO predicated offenses, the acts must have been committed for gain, see Commercial
Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374 (2d Cir. 2001) [cleaning service’s RICO action
against competitor in civil case for hiring undocumented persons and therefore violating §1324 stated cause of
action], and must be pleaded with great specificity demonstrating a nexus to plaintiffs damages, see Walters v.
McMahen, 684 F.3d 435 (4th Cir. 2012) [claim that low-level clerks at Perdue Farms were hiring undocumented
workers to drive down wages was dismissed for failure to plead sufficient violations].
JJ. Forced Labor, Peonage, and Document Servitude—18 USC §1589. U.S. v. Dann, 652 F.3d 1160, 1169-73
(9th Cir. 2011) [can use effort by defendant to instill fear of immigration in victim as basis for forcing labor by
means of threat of serious harm]; U.S. v. Calimlim, 538 F.3d 706 (7th Cir. 2008) [upholding conviction over
vagueness and overbreadth challenge to statute]; U.S. v. Sabhnani, 599 F.3d 215, 237–41 (2d Cir. 2010)
[includes aiding and abetting].
KK. Fraud in Foreign Labor Contracting—18 USC §1351. Whoever knowingly and with intent to defraud,
recruits, solicits or hires someone outside the U.S. or gets another to do the same through materially false or
fraudulent promises regarding employment inside or outside the U.S. (outside if U.S. contractor or on military
installation) faces 5 years imprisonment. U.S. v. Bart, 888 F.3d 374 (8th Cir. 2018) [fraud in foreign labor
contracting where defendant brought H-2A workers to U.S. and required them to pay recruitment fee, travel
costs, and kickbacks on their wages].
LL. Passport Confiscation or Destruction—18 USC §1597. Destroying, concealing, confiscating or possessing
a passport or other immigration document of another to violate the fraud in foreign labor contracting statute
(§1351) or to bring in or harbor an alien under 8 USC §1324. Page 415
MM. Importation of an Alien for Prostitution or Other Immoral Purposes—8 USC §1328; U.S. v. Clark, 582
F.3d 607 (5th Cir. 2009) [“immoral purpose” section of statute withstood vagueness challenge where minister
brought a prostitute to the U.S. on the promise of education, enrolled her in the University, but demanded sex].
NN. Hostage Taking by Aliens of U.S. Nationals—18 USC §1203(b) makes it a crime for aliens to take U.S.
nationals hostage. U.S. v. Clarke, 628 F.Supp.2d 1, 3–5 (D.D.C. 2009) [classification based upon alienage
survives constitutional scrutiny because it is rationally related to U.S. compliance with the International
Convention Against the Taking of Hostages]
OO. Border Tunnel Construction—18 USC §555 criminalizes financing a border tunnel or recklessly permitting
construction or use of a border tunnel of one’s property. Includes attempts and conspiracies.
PP. Sex Offender Travel—Sex offenders must provide to the national registry detailed travel-related information
relating to intended travel outside the U.S. and knowing failure to provide information is punishable by 10-year
prison sentence. 18 USC §2250(b).
QQ. Other Criminal-Related Issues
1. Agreements with U.S. Attorney as Part of Plea—A U.S. attorney in a plea bargain may bind the U.S.
government, including DHS, in regard to deportation of a person entering a plea. Thomas v. INS, 35 F.3d
1332 (9th Cir. 1994) [U.S. attorney’s agreement that “the Government will not oppose any motion by your
counsel for … relief from deportation to … U.S. Immigration Service” binding on INS]; Margalli-Olvera v. INS,
43 F.3d 345 (8th Cir. 1994) [following Thomas enforced plea agreement]; Ramallo v. Reno, 931 F.Supp. 884
(D.D.C. 1996), vacated on jurisdictional grounds, 114 F.3d 1210 (D.C. Cir. 1997). But see Morgan v.
Gonzales, 495 F.3d 1084, 1091 (9th Cir. 2007) [defendant did not allege an explicit promise was made to him
by the government]; San Pedro v. U.S., 79 F.3d 1065 (11th Cir. 1996). The AG has sought to resolve the
circuit split by promulgating a regulation that says INS shall not be bound by “plea agreements, cooperation
agreements, or other agreements with or for the benefit of alien defendants, witnesses or informants, or other
aliens cooperating with the United States Government, except by the authorization of the Commissioner of
the Service or the Commissioner’s delegate.” 28 CFR §0.197. The regulation, however, does not reach the
unresolved constitutional argument of the enforceability of a plea or the court’s authority to enforce a
settlement.
2. Deportation and Removal—Court may dismiss an indictment of a defendant who was deported before he
could go to trial.U.S. v. Resendiz-Guevara, 145 F.Supp.3d 1128 (M.D. Fla. 2015) [indictment must be
dismissed for defendant who was deported where government could have stayed deportation pursuant to 8
CFR §215.3(g) because failure to stay removal deprived defendant of his Fifth amendment right to prepare a
defense, his Sixth Amendment to consult with counsel, and his right to a Speedy Trial]. Deported alien
charged with crime who does not ask U.S. consulate for permission to re-enter U.S., however, may be
considered a fugitive. U.S. v. $45,940 in U.S. Currency, 739 F.2d 792 (2d Cir. 1984). Fugitives generally are
not given the right to pursue an appeal at the BIA or federal court. Wittgenstein v. INS, 124 F.3d 1244 (10th
Cir. 1997); Bar-Levy v. INS, 990 F.2d 33 (2d Cir. 1993). But see Degen v. U.S., 517 U.S. 820 (1996) [fugitive
disentitlement doctrine does not apply to forfeiture].
3. Departure of Witnesses
3.a. Under U.S. v. Valenzuela-Bernal, 458 U.S. 858, 873–74 (1982), the moving party must show that the
eyewitness evidence that was lost by deportation of a witness “would be both material and favorable to
the defense,” and must “affect the judgment of the trier of fact.” U.S. v. Vo, 53 F.Supp.3d 77 (D.D.C 2014)
[granting request for deposition before deportation, declining to issue a deferred action order, but agreeing
to issue a bench warrant acting as a detainer until deposition is taken]. Government facilitation of
voluntary departure is equivalent to deportation. U.S. v. Morales-Quinones, 812 F.2d 604 (10th Cir. 1987).
Some courts have held that the moving party must show bad faith and prejudice from the government’s
misconduct. U.S. v. Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir. 2002) [affirming transporting and
harboring case where defendant could not show prejudice or government bad faith in removing
witnesses]; U.S. v. Chaparro-Alcantara, 226 F.3d 616, 622–25 (7th Cir. 2000) [bad faith required in light of
Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988), and language in Valenzuela-Bernal]; Page 416 U.S. v.
Ramirez-Jimenez, 967 F.2d 1321, 1325 (9th Cir. 1992); Dickey v. Davis, 231 F.Supp.3d 634, 769-72 (E.D.
Cal. 2017) [no showing of prejudice by removal of witness] But see U.S. v. Leal-Del Carmen, 697 F.3d 964
(9th Cir. 2012) [conviction reversed where only favorable witness was deported, no video or transcript of
interview of witness was admitted, and judge never gave instruction regarding missing witness]; U.S. v.
Hernandez, 347 F.Supp.2d 375, 380–81 (S.D. Tex. 2004) [indictment for assaulting border patrol officer
dismissed where Fifth Circuit standard unclear, government did not act in good faith, and material witness
was removed without notifying defendant]. A party may also waive the right to protest deportation of
material witnesses. U.S. v. Ramirez-Lopez, 315 F.3d 1143, 1149–53 (9th Cir. 2003) [right was waived and
defendant could not show prejudice to him or bad faith by the government].
3.b. The taking of material witness depositions in lieu of live testimony was held to violate the Sixth
Amendment confrontation clause. U.S. v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987). But see U.S. v.
Rivera, 859 F.2d 1204 (4th Cir. 1988) [no Sixth Amendment violation where defense counsel had
opportunity to argue against deposition testimony and then participated in depositions that were used at
trial].
3.c. In alien smuggling cases under INA §274(d), 8 USC §1324(d), a videotape deposition of a witness is
admissible even if the witness was deported, if the witness “was available for cross-examination” and the
deposition otherwise complies with the Federal Rules of Evidence.
3.d. The government cannot routinely detain undocumented material witnesses unless it can prove the
necessity for detention. Either party can take depositions as an alternative. Aguilar-Ayala v. Ruiz, 973 F.2d
411, 421 (5th Cir. 1992); 18 USC §3144 (1980). A material witness has the right to appointed counsel. 18
USC §3006A (1986).
4. Juvenile Aliens—Federal Juvenile Delinquency Act’s requirements of parental notification and prompt
arraignment when juvenile charged with federal crime are applicable to alien who is a juvenile when charged
with smuggling. U.S. v. Doe, 862 F.2d 776 (9th Cir. 1988).
5. Criminal Forfeitures—18 USC §982. Criminal forfeiture includes most statutes related to passport and visa
fraud. These include 18 USC §§1028, 1425–27, 1541–44, 1546, and 8 USC §1324(a)(1) and (2). Where
there is a conviction for visa fraud under §1546, then 18 USC §982(a)(6)(A) provides for forfeiture of: (1) any
proceeds of visa fraud; (2) any property derived from or traceable to the proceeds of visa fraud; (3) any
property used to facilitate the crime; and (4) any conveyance used in the commission of the offense. Criminal
forfeiture proceedings are governed by §413 of the Comprehensive Drug Abuse Prevention and Control Act
of 1970 (21 USC §853) except sections (a) and (d). Criminal forfeitures under 18 USC §982 are therefore
governed by the procedures set forth in 21 USC §853. Included is the right of the government to seek
preindictment issuance of an ex-parte TRO to seize property upon a showing of probable cause. Restraint of
Bowman Gaskins Fin. Grp., 345 F.Supp.2d 613 (E.D. Va. 2004)[preindictment seizure of money in lawyer’s
and other accounts upheld].It also includes post-conviction seizure of property, even if it was not derived from
the proceeds of the fraud, where it meets the “but-for” test. U.S. v. Ivanchukov, 405 F.Supp.2d 708 (E.D. Va.
2005) [ordering forfeiture of $100,000 where one co-conspirator provided another a $100,000 blank check,
which was not proceeds of the illegal immigration scheme but would not have been given “but for” their joint
involvement in the conspiracy].
6. Reporting Criminal Conduct—An employee or member of the public who suspects criminal conduct by a
USCIS, ICE, or CBP employee, may report it to the DHS Office of Inspector General by calling 1-800-323-
8603 or e-mailing DHSOIGHOTLINE@dhs.gov.
7. Sentencing
7.a. Generally—The Sentencing Reform Act of 1984, as amended, 18 USC §3551 et seq., 28 USC §§991–
98, made far-reaching changes in federal sentencing (United States Sentencing Guidelines) by restraining
the broad discretion of judges and replacing it with guidelines based on aggravating and mitigating
factors. Although the Court allowed for departures of sentences in certain circumstances, see Koon v.
U.S., 518 U.S. 81 (1996) [recognizing that discretion remained even under mandatory guidelines where
factors were not adequately taken into account or where the situation was atypical], the Guidelines were
generally treated as mandatory. However, the Supreme Court in U.S. v. Booker, 543 U.S. 220 (2005),
found that its holdings in Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530
U.S. 466, 477 (2000), Page 417 apply to the U.S. Sentencing Guidelines and that the Sixth Amendment is
violated by the imposition of an enhanced sentence under the Guidelines where it is based upon a judge’s
determination of a fact (other than a prior conviction) that was not found by a jury or admitted by the
defendant. The Court then determined that, as a remedial matter, the Guidelines could no longer be
mandatory but instead advisory. Courts can now “consult” the Guidelines, “take them into account when
sentencing,” and utilize a “reasonableness” standard. Booker, 543 U.S. at 360-65. However, “district
courts are entitled to reject and vary categorically from [particular] Guidelines based on a policy
disagreement with those Guidelines.” Spears v. U.S., 555 U.S. 261, 265-66 (2009) (per curiam). Where
there is an error in the computation of the Guidelines, a defendant challenging the computation on appeal
need not show additional evidence proving that the right Guideline would have affected his sentence.
Molina-Martinez v. U.S., 578 U.S. __, 136 S.Ct. 1338 (2016). Despite their advisory nature, Guidelines
promulgated after a person committed a criminal act may not be applied if the government applies for a
higher sentence, as their use would violate the Ex Post Facto Clause. Peugh v. U.S., 569 U.S. 530
(2013). In addition to the now advisory Guidelines, courts in determining a sentence will be guided by the
statutory factors under 18 USC §3553(a): (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence imposed: (a) to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for the offense; (b) to afford
adequate deterrence; (c) to protect the public; and (d) to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the
kinds of sentences available; (4) the kinds of sentences and the sentencing range established under the
Guidelines; (5) any pertinent policy statement issued by the Sentencing Commission; (6) the need to
avoid unwarranted sentence disparities; and (7) the need to provide restitution to the victims. In Rita v.
U.S., 551 U.S. 338, 364-65 (2007), Justice Stevens, in a concurring opinion, noted that §3553(a) also
provides that a sentencing judge could consider “age, education, mental or emotional condition, medical
condition (including drug and alcohol addiction), employment history, lack of guidance as a youth, family
ties, or military, civic, charitable, or public service.” To determine whether a sentence is reasonable courts
will look to the record to see if the sentencing judge gave “meaningful consideration” to the factors in
§3553(a) and whether the factors were “reasonably applied to the circumstances of the case.” U.S. v.
Vargas, 477 F.3d 94, 100–01 (3d Cir. 2007) [upholding 41-month sentence for illegal reentry]. Cf. U.S. v.
Johnson, 877 F.3d 993 (11th Cir. 2017) [reversed denial of termination of supervised release where
neither the district judge’s summary nor the record indicated the basis for the denial of the motion].Court
need not robotically recite each factor in determining sentence. U.S. v. Ruiz-Salazar, 785 F.3d 1270 (8th
Cir. 2015). See also U.S. v. Aguilar, 133 F.Supp.3d 468 (E.D.N.Y. 2015) (Weinstein, J.) [in sentencing
context, recommending that defendant not be deported and be given work release due to hardship to
family especially separation from children by parent’s deportation]; U.S. v. Gomez-Herrera, 523 F.3d 554,
557–64 (5th Cir. 2008) [post-Rita and Kimbrough and following §3553(a) guidelines, lack of fast-track
pleas are not an “unwarranted” disparity]; U.S. v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009) [same];
U.S. v. Sanchez-Ramirez, 497 F.3d 531 (5th Cir. 2007) [80-month sentence for conspiring and aiding and
abetting the transportation of undocumented persons, which was above Guideline range, was reasonable
given the heinous conduct toward smuggled aliens]; U.S. v. Roche-Martinez, 467 F.3d 591, 595 (7th Cir.
2007) [rejecting downward departure for defendant’s cultural assimilation]; U.S. v. Maciel-Vasquez, 458
F.3d 994, 995 (9th Cir. 2006) [upholding 36-month sentence for reentry post-Booker despite court’s
reliance on Guidelines and failure to state why it chose a particular sentence]; U.S. v. Ortiz-Delgado, 451
F.3d 752, 758 (11th Cir. 2006) [upholding, on post-Booker reasonableness grounds, a 60-month sentence
for reentry, and recognizing that Booker does not require the sentencing judge to state on the record that
he considered each of the §3553(a) factors]; U.S. v. Perez-Nunez, 368 F.Supp.2d 1265 (D.N.M. 2005)
[reducing sentence for reentry after the commission of an aggravated felony from 57 months to 24 months
after applying 18 USC §3553(a)]; U.S. v. Huerta-Rodriguez, 335 F.Supp.2d 1019, 1025 (D. Neb. 2005)
[rejecting government’s contention that a criminal sentence should fall within the Guidelines range absent
highly unusual circumstances as an effort to reinstitute mandatory guidelines]. A judge may not base his
sentencing on unfounded beliefs about the defendant’s immigration status or the judge’s views about
Page 418 the lack of immigration enforcement. U.S. v. Velasquez Velasquez, 524 F.3d 1248, 1253 (11th
Cir. 2008) [vacating 9-month sentence].
7.b. Sentencing Cases in Supreme Court Defining Post-Booker Sentencing—Subsequent to Booker

the Supreme Court addressed the relationship between both within- and without-Guideline sentences and
the presumptive reasonableness of a sentence under the §3553(a) factors.
(1) Within-Guideline Range Post-Booker Under Rita—In Rita v. U.S., 551 U.S. 338 (2007) the Court
determined that an appellate presumption of reasonableness for within-Guideline sentencing is
permissible, although not required. Rita, 551 U.S. at 347. But see U.S. v. Carty, 520 F.3d 984, 991 (9th
Cir. 2008) (en banc) [declining post-Rita that a Guidelines range is reasonable]. In rendering a within-
Guidelines sentencing decision, the district court need not necessarily issue a lengthy explanation but
there may be circumstances where the parties raise nonfrivolous reasons for imposing a different
sentence and in those cases, the judge must explain why he rejected the arguments. Where the judge
imposes a sentence outside the Guidelines, he will have to explain why he did so. Rita, 551 U.S. at
357-58; U.S. v. Angel-Guzman, 506 F.3d 1007 (10th Cir. 2007) [explaining and adopting Rita but
finding no jurisdiction to review a district court’s discretionary decision to deny a motion for a
downward departure]. But where the sentence is imposed within the Guideline range, and the
defendant failed to object, an appellate challenge “faces long odds.” U.S. v. Chavarria-Ortiz, 828 F.3d
668, 671 (8th Cir. 2016) [in illegal reentry case upholding 84-month sentence within guidelines]. See
also U.S. v. Marin-Castano, 688 F.3d 899, 905-06 (7th Cir. 2012) [where Guideline range was 46 to 57
months on illegal reentry case, 46-month sentence where the conviction was 26 years old was
reasonable because of court’s concern regarding deterrence]; U.S. v. Perez-Perez, 512 F.3d 514 (9th
Cir. 2008) [post-Rita 62-month and 2-week sentence within the Guidelines was reasonable]. There is
no jurisdiction in the circuit courts to review a district court’s discretionary decision to deny a motion for
downward departure on the grounds the defendant’s circumstances do not warrant it. U.S. v. Cuevas-
Bravo, 780 F.3d 1024, 1030-31 (10th Cir. 2015), although there is still a challenge to the substantive
reasonableness of the sentence.
(2) Below-Guideline Range Post-Booker Under Gall and Kimbrough—In Gall v. U.S., 552 U.S. 38 (2007),
the Supreme Court addressed whether a judge had to provide extraordinary reasons for granting a
sentence below the Guidelines. In Gall, the Guideline range suggested a 30- to 37-month prison
sentence, but the judge granted 36 months’ probation. The Court determined that whether a sentence
is within or outside the Guidelines range, the standard remains abuse of discretion and therefore no
“extraordinary” finding need be made, nor mathematical calculation be computed when deviating from
the Guidelines. 552 U.S. at 45-49. When calculating an appropriate sentence, a court should use the
Guidelines as “the starting point and the initial benchmark,” 552 U.S. at 49, and should then give both
parties an opportunity to argue for whatever sentence they deem appropriate. The judge should then
consider all of the §3553(a) factors, but in doing so “may not presume that the Guidelines range is
reasonable.” 552 U.S. at 50. She must then make an individualized assessment based upon the facts
and if she decides an outside-Guidelines sentence is appropriate, she must consider “the extent of the
deviation and ensure that the justification is sufficiently compelling to support the degree of variance.”
552 U.S. at 50. Finally, the Court found it “uncontroversial” that a major departure be supported by a
more significant justification than a minor one and that the judge must adequately explain the sentence
for purposes of appellate review and to promote the perception of a fair sentencing system. An
appellate court will review a sentence for abuse of discretion while ensuring that no significant
procedural errors have occurred such as failing to calculate the Guidelines properly, treating them as
mandatory, failing to consider all of the §3553(a) factors, selecting a sentence based upon clearly
erroneous facts, or failing to explain the basis for the sentence. If it is procedurally sound, the appellate
court should review it for substantive reasonableness taking into account the totality of the
circumstances. If it is within the Guidelines range the appellate court “may, but is not required to, apply
a presumption of reasonableness” and if it is outside the Guidelines, the court “may not apply a
presumption of unreasonableness.” 552 U.S. at 51; U.S. v. Tesillos, 965 F.Supp.2d 1037 (E.D. Wis.
2013) [defendant given 8-month sentence where Guidelines were 24-30 months for counterfeiting
immigration documents Page 419 in violation of 18 USC §1546, as court considered punitive aspect of
removal and fact that defendant would remain in ICE custody]; U.S. v. Garcia-Lopez, 691 F.Supp.2d
1099 (C.D. Cal. 2010) [6-month sentence and 3 years’ supervised release instead of 41 to 51 months
for illegal reentry given extremely difficult abusive early life]; U.S. v. Todd, 618 F.Supp.2d 1349 (M.D.
Ala. 2009) [departing below Sentencing Guideline for defendant convicted of fraud on I-9 and perjury
on I-485 who lived in the U.S. for 20 years, had no other criminal convictions, had 2 USC children and
USC husband, had already been punished through separation from her family as a result of 4-month
immigration custody, and who posed no danger to the public]; U.S. v. Torre-Ojeda, 829 F.3d 1027 (8th
Cir. 2016) [where 22-month sentence was significantly below Guideline range, court affirmed despite
defendant’s plea for time served because “it is nearly inconceivable that the court abused its discretion
in not varying downward still further”].
(3) In Kimbrough v. U.S., 552 U.S. 85 (2007), the Court held that a sentencing judge could consider the
disparity within the Guidelines between crack and powder cocaine offenses and could determine in a
particular case that the within-Guidelines sentence is “greater than necessary” to serve the sentencing
objectives under §3553(a).
(4) Sentencing Following Gall and Kimbrough—U.S. v. Thavaraja, 740 F.3d 253, 262-63 (2d Cir. 2014)
[below-Guidelines substantively reasonable because (inter alia) defendant likely to be deported and
feared reprisal in home country; recognizing that Kimbrough abrogated prior law holding deportation
may not be factored in as effective additional punishment]; U.S. v. Lopez-Reyes, 589 F.3d 667 (3d Cir.
2009) [upholding 46-month sentence for illegal reentry after removal for aggravated felony where
petitioner challenged Guideline under §2L1.2 as empirically and substantively unreasonable given his
nonviolent conviction for robbery]; U.S. v. Amezcua-Vasquez, 567 F.3d 1050, 1054–58 (9th Cir. 2009)
[52-month sentence within Guidelines for 16-level enhancement was unreasonable because of the age
of the conviction (28 years) and the individual’s circumstances required a variance from the Guidelines
under §3553(a)]; U.S. v. Rodriguez-Rodriguez, 530 F.3d 381 (5th Cir. 2008) [upholding 57-month
sentence at low end of Guideline range in “found-in” case]; U.S. v. Gonzalez-Carballo, 519 F.3d 1232,
1236 (10th Cir. 2008) [24-month sentence for illegal reentry was below Guideline range; judge
acknowledged PSR suggestion that range overstated the seriousness of respondent’s criminal history].
(5) Sentencing Above Guideline Range Post-Booker—U.S. v. Sanchez-Lopez, 858 F.3d 1064 (7th Cir.
2017) [upheld sentence above guidelines where judge focused on deterrence as defendant had
reentered once before ]U.S. v. Hernandez-Pineda, 849 F.3d 769, 771-72 (8th Cir. 2017) [upheld 120-
month sentence for illegal reentry after botched robbery and after two prior removals including one for
an aggravated felony]; U.S. v. Worku, 800 F.3d 1195, 1207-08 (10th Cir. 2015) [a sentence of 22 years
—the maximum for each count for unlawful procurement of citizenship, fraud and misuse of visas, and
aggravated identity theft—was substantively reasonable despite Guideline range of 3 years, where
person engaged in acts to conceal prior human rights violations in Ethiopia]; U.S. v. Osorio-Moreno,
814 F.3d 1282 (11th Cir. 2016) [a sentence of 120 months for illegal re-entry, which was significantly
more than the Guideline range of 51 to 63 months, was substantively reasonable for a person who had
20 prior convictions ranging from drug trafficking to violent crimes against women and police officers];
U.S. v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015) [sentence of 87 months was substantively
reasonable despite reversal previously for 87 months and despite 0-6 months Guideline range]; U.S. v.
Burgos-Ortega, 777 F.3d 1047, 1056-57 (9th Cir. 2015) [need for deterrence outweighed mitigating
factors where defendant had three prior reentry convictions and an extensive criminal record]; U.S. v.
Fuentes, 775 F.3d 213 (5th Cir. 2014) [upward departure for “found in” case was appropriate because
prior criminal conduct not resulting in a conviction may be considered and defendant’s pleas to lesser
offenses involving lewd conduct concerning children were addressed in PSR]; U.S. v. Zelaya-Rosales,
707 F.3d 542 (5th Cir. 2013) [despite Guideline range and PSR recommending 6 months, judge’s 12-
month sentence was substantively reasonable based on five previous immigration encounters and 4
previous removals]; U.S. v. Rivera-Santana, 668 F.3d 95 (4th Cir. 2012) [sentenced to 240 months for
illegal reentry which was two upward departures in the Sentencing Guidelines augmented by an
upward variance of 90 months]; U.S. v. Ventura, 650 F.3d 746 (D.C. Cir. 2011) Page 420 [sentencing
defendant 43 months above the upper bounds of the Guidelines on illegal reentry case, where there
was violence against a minor]; U.S. v. Mejia-Perez, 635 F.3d 351 (8th Cir. 2011) [sentence of 20
months significantly above the 6-month Guideline maximum upheld based upon repeated illegal
entries and minor crimes]; U.S. v. Perez-Molina, 627 F.3d 1049 (7th Cir. 2010) [unlawful entry where
sentence was almost twice the Guideline range]; U.S. v. Chirino-Alvarez, 615 F.3d 1344, 1346 (11th
Cir. 2010) [where judge imposed a statutory mandatory minimum sentence, any error in computing the
Guidelines was harmless]; U.S. v. Velasquez-Torrez, 609 F.3d 743 (5th Cir. 2009) [in illegal-reentry
case, court used defendant’s admission that information in PSR is correct to enhance sentence to 37
months]; U.S. v. Tristan-Madrigal, 601 F.3d 629 (6th Cir. 2010) [36-month sentence for illegal reentry
above the 15- to 21-month Guidelines upheld where judge considered substance abuse treatment,
despite the fact that defendant, as a noncitizen/nonresident, did not qualify for the most part]; U.S. v.
Cruz-Perez, 567 F.3d 1142, 1147 (9th Cir. 2009) [upholding 48-month sentence in illegal reentry case];
U.S. v. McKinzie, 557 F.3d 931 (8th Cir. 2009) [imposing 30-month sentence for 18 USC §1542
violation concurrently with reentry violation, where Guideline range was 6–12 months]; U.S. v. Yanez-
Rodriguez, 555 F.3d 931, 945–49 (10th Cir. 2009) [144-month sentence was above the Guideline
range for illegal reentry after committing aggravated sexual battery]. But see U.S. v. Singh, 877 F.3d
107 (2d Cir. 2017) [60-month sentence for illegal reentry where guideline range was only 15 to 21
months was substantively and procedurally unreasonable]; U.S. v. Gerezano-Rosales, 692 F.3d 393
(5th Cir. 2012) [vacated 108-month sentence for illegal-reentry where district court raised sentence
because defendant was disrespectful to court by questioning original 71-month sentence].
(6) Sentencing Under §3553(a) and Shepard—Although the court may not consider information other
than that contained in documents authorized under Shepard v. U.S., 544 U.S. 13 (2005), when
establishing the appropriate Guideline range, it may consider documents beyond the Shepard
limitations when determining the appropriate sentence under §3553(a). U.S. v. Ventura, 650 F.3d 746,
750 (D.C. Cir. 2011) [in rejecting a challenge to the use of the PSR to a determination under §3553,
the court noted that “the oddity of allowing the district court to consider certain evidence when relying
upon the §3553(a) factors but not when determining the applicable Guidelines range is not lost on us”].
See U.S. v. Benitez-De Los Santos, 650 F.3d 1157, 1160 (8th Cir. 2011) [expanding Shepard
documents following Castro v. Holder, 340 F.App’x 410, 412 (9th Cir. 2009) and found that the “Report
Indeterminate Sentence” under California law is a “Shepard” document because it is a comparable
judicial record prepared and signed by a deputy clerk of court].
(7) Alien Smuggling Offenses—USSG §2L1.2(b)(1)(A)(iii) [warranting 16-level upward adjustment if

previously deported for alien smuggling offense for gain], U.S. v. Guzman-Mata, 579 F.3d 1065 (9th
Cir. 2009) [proof of family exception was on defendant not government]; U.S. v. Solis-Campozano, 312
F.3d 164 (5th Cir. 2002) [transporting aliens within the U.S. constitutes an alien smuggling offense]. If
aliens who are smuggled suffer permanent or life-threating injuries there is a 6-level enhancement
under USSG §2L1.1(b)(7)(C). If the smuggling results in death to the alien there is a 10-level
adjustment. USSG §2L1.1(b)(7)(D). “Bodily injury,” “serious bodily injury,” and “permanent or life-
threatening bodily injury” have the meaning given those terms in Commentary to §1B1.1 (Application
Instructions). Effective Nov. 1, 2016, a defendant faces an enhancement of 4 levels for smuggling an
unaccompanied minor. USSG §2L1.1(b)(4). That enhancement will not apply if the minor’s “parent,
adult relative, or legal guardian” accompanied the minor. §2L1.1(b)(4). In addition, the amendment
expands the definition of “minor” for purposes of subsection (b)(4), to include an individual under the
age of 18. Commentary to §2L1.1 n.1.
7.c. Guideline Sentencing Generally—Effective Nov. 1, 2016, the Sentencing Commission substantially
amended USSG §2L1.2 to base enhancements primarily on the length of the sentence imposed for a prior
offense. 81 FR 27261, 27272 (May 5, 2016). The amended §2L1.2 applies to convictions under 8 USC
§1253, §1325(a) and §1326. Commentary to USSG at §2L1.2 n.2. Page 421
(1) Guideline Offense Characteristics—In applying enhancements for prior convictions, the illegal
entry/re-entry/remaining Guideline named “Unlawfully Entering or Remaining” differentiates depending
on whether: the defendant committed the current offense after sustaining prior illegal entry offenses or
a prior illegal reentry offense, §2L1.2(b)(1); the defendant committed the predicate offense before
being removed or deported for the first time, §2L1.2(b)(2); or the defendant engaged in conduct that
resulted in a conviction after being removed or deported for the first time. §2L1.2(b)(3).
(a) Where the Defendant Committed the Current Offense After Sustaining Convictions for Prior Illegal
Entry Offenses or a Prior Illegal Reentry Offense—Under §2L1.2(b)(1), the judge will apply the
greater of a 4-level increase for convictions for one or more felony illegal reentries and a 2-level
increase for 2 or more illegal-entry convictions.
(b) Where the Defendant Committed the Offense Before Being Removed for the First Time—Under
§2L.2(b)(2), the judge will apply the greatest of the following enhancements for a prior conviction
(other than an illegal-entry or -reentry offense): (A) a 10-level increase for a felony conviction where
the sentence imposed was 5 years or more; (B) an 8-level increase for a felony conviction where
the sentence imposed was 2 years or more; (C) a 6-level increase for a felony conviction where the
sentence imposed exceeded one year and one month; (D) a 4-level increase for any other felony
offense; or (E) a 2-level increase for three or more convictions for misdemeanors that are crimes of
violence or drug trafficking offenses.
(c) Where the Defendant Engaged in Conduct Resulting in an Offense After Being Removed for the
First Time—Under §2L1.2(b)(3), the judge will apply the greatest of the following enhancements for
a prior conviction (other than an illegal-entry or reentry offense): (A) a 10-level increase for a felony
conviction where the sentence imposed was 5 years or more; (B) an 8-level increase for a felony
conviction where the sentence imposed was 2 years or more; (C) a 6-level increase for a felony
conviction where the sentence imposed exceeded one year and one month; (D) a 4level increase
for any other felony offense; or (E) a 2-level increase for 3 or more convictions for misdemeanors
that are crimes of violence or drug trafficking offenses.
(2) Conviction—In order to have an enhancement, the defendant had to be previously convicted. The first
issue then is what definition of conviction is used to determine whether the defendant was previously
convicted. The court could rely on §4A1.2(a)(4) of the Sentencing Guidelines or INA §101(a)(48)(A)
the Immigration and Nationality Act definition of conviction. See U.S. v. Canelas-Amador, 837 F.3d 668
(6th Cir. 2016) [discussing the circuit split on this issue and deciding that the INA definition applies
given the Rule of Lenity and where the state court did not have an opportunity to impose a sentence
despite an acceptance of plea of guilty under Tennessee law, defendant was not convicted under the
INA]. In addition, it is irrelevant that the conviction was later vacated because the statute requires
enhancement based upon the time of deportation and not the time of reentry or subsequent to reentry.
U.S. v. Moreno-Tapia, 848 F.3d 162, 172-73 (4th Cir. 2017) [defendant was subject to 12 level crime-
of-violence enhancement based upon his conviction at time of deportation despite a vacatur before
sentencing on his reentry conviction].
(3) “Sentence Imposed”—Under the Commentary to §2L1.2 n.2, the term “Sentence imposed”
incorporates the definition given the term “sentence of imprisonment” in Application Note 2 and
subsection (b) of §4A1.2, which provides that: “To qualify as a sentence of imprisonment, the
defendant must have actually served a period of imprisonment on such sentence.” Commentary to
§4A1.2 n.2.
(4) Use of the Categorical Approach—The amended illegal-reentry Guidelines use the categorical
approach in Taylor and Descamps only to determine misdemeanor enhancements under USSG
§§2L1.2(b)(2)(E) and (b)(3)(E). USSG §2L1.2.
(5) Misdemeanor Defined—A misdemeanor means any federal, state, or local offense punishable by a
term of imprisonment of one year or less. Commentary to §2L1.2 n.2 U.S. v. Cordova-Arevalo, 456
F.3d 1229 (10th Cir. 2006) [although Colorado 3d degree assault is a Page 422 misdemeanor, it is a
felony under the federal definition pursuant to 18 USC §3559(a) and therefore enhancement of
sentence was appropriate].
(6) “Crime of Violence”—The term “crime of violence offense” applies to the illegal-entry and -reentry
Guidelines only in connection with a 2-level increase for prior misdemeanors. USSG §§2L1.2(b)(2)(E)
& (b)(3)(E). Defined as “an offense under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of another”; and includes
murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion,
or the use or unlawful possession of a firearm as described in 26 USC §5845(a) or explosive material
as defined in 18 USC §841(c). Commentary to §2L1.2 n.2. The offense of forcible sex offense includes
nonconsensual offenses or where consent was not valid legally. It also includes abuse of a minor and
statutory rape if it was (A) an offense described in 18 USC §2241(c) or (B) an offense under state law
that would have been a federal offense under §2241(c). Commentary to §2L1.2 n.2. Statutory Rape,
U.S. v. Palaguachi, 187 F.Supp.3d 356, 362-64 (E.D.N.Y. 2016) [statutory rape under N.Y. Penal Law
§130.30 is a forcible sex offense COV under the modified categorical approach]. See also Aggravated
Robbery, U.S. v. Chagoya-Morales, 859 F.3d 411, 421-22 (7th Cir. 2017) [aggravated robbery under
720 ILCS 5/18-1]; Armed Robbery, U.S. v. Burke, 863 F.3d 1355, 1360 (11th Cir. 2017); Domestic
Battery by Strangulation, U.S. v. Dixon, 874 F.3d 678 (11th Cir. 2017) [domestic battery by
strangulation under Fla. Stat. §784.041(2)(a) is categorically a COV under USSG §2K2.1];.
(7) Drug Trafficking Offenses—The term “drug trafficking offense” applies to the reentry Guidelines only
in connection with a 2-level increase for prior misdemeanors. USSG §§2L1, 2(b)(2)(E) and (b)(3)(E).
Although it has limited applicability to the current Guideline, the Commission did not change its
meaning, which is: “An offense under federal, state, or local law that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the

possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.” Commentary to §2L1.2 n.2. U.S. v. Alvarez-Bernabe, 626 F.3d 1161
(10th Cir. 2010) [rejected claim that Guideline is not substantively reasonable]. See also U.S. v.
Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) [Cal. Health and Safety Code §11352(a) is
divisible and under modified categorical approach defendant was convicted of drug trafficking offense];
U.S. v. Burgos-Ortega, 777 F.3d 1047, 1049-55 (9th Cir. 2015) [defendant could not show that Wash.
Rev. Code §69.50.401(a)(1)(i) for delivery of heroin was overbroad and not a categorical match]; U.S.
v. Rodriguez, 523 F.3d 519, 523–24 (5th Cir. 2008) [distribution of cocaine, Va. Code. Ann. §18.2-
248(a) is a drug trafficking crime].
(a) Conviction Under 21 USC §§841(a)(1), 841(b)(1)A)(i) for drug trafficking can result in a higher
(double) maximum sentence up to 20 years where the government chooses to give notice that the
defendant has been convicted of a prior felony drug offense which is defined as one that is
punishable by imprisonment for more than one year. U.S. v. Cross, 249 F.Supp.3d 339, 356-58
(D.D.C. 2017) [court rejected claim that Carachuri-Rosendo prohibits using the prior conviction and
rejected the analogy to aggravated felony definitions].
(8) Fraudulently Obtained or Used a U.S. Passport—USSG §2L.2.2(b)(3)(A). Provides for a four level
enhancement if the defendant fraudulent obtained or used a U.S. Passport. U.S. v. Casillas-Casillas,
845 F.3d 623 (5th Cir. 2017) [includes use of a passport card].
(9) Other Adjustments
(a) Cultural Assimilation—U.S. Sentencing Commission permits a downward departure for cultural
assimilation at USSG §2L1.2 Commentary n.7 where: (A) the defendant formed cultural ties
primarily with the U.S. from having resided continuously in the U.S. from childhood; (B) those
cultural ties provided the primary motivation for defendant’s illegal reentry or continued presence in
U.S.; and (C) such a departure is not likely to increase the risk to the public from further crimes of
the defendant. In making the determination, the court should consider: (i) the age in childhood
when defendant began to reside in U.S.; (ii) how long defendant attended school in U.S.; (iii)
duration Page 423 of continued residence in U.S.; (iv) duration of presence outside the U.S.; (v) the
nature and extent of family and cultural ties inside and outside the U.S. and (vi) the seriousness of
defendant’s criminal history; and (vii) whether defendant engaged in additional criminal activity after
illegal reentry. See also U.S. v. Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012) [recognized Guideline
but did not reverse district court’s failure to discuss cultural assimilation in giving 24-month
Guideline sentence]; U.S. v. Lopez-Hernandez, 687 F.3d 900, 904 (7th Cir. 2012) [recognizing
cultural assimilation but only where departure doesn’t pose a risk to public]; U.S. v. Lipman, 133
F.3d 726, 730 (9th Cir. 1998); U.S. v. Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001);
U.S. v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998); U.S. v. Vallecillo-Rodriguez, 770
F.Supp.2d 1194, 1201-02 (D.N.M. 2011) [recognizing Guideline but ruling departure not warranted].
But family ties and responsibilities are not ordinarily relevant in determining a downward departure.
USSG §5H1.6; U.S. v. Valenzuela-Perez, 812 F.Supp.2d 1274 (D.N.M. 2011) [declined to grant
downward departure for family ties and responsibilities, extraordinary hardship to his children]; U.S.
v. Ledezma-Ledezma, 808 F.Supp.2d 1301 (D.N.M. 2011) [rejecting downward departure and citing
§5H1.6].
(b) Departure Based on Seriousness of a Prior Offense—The amended Guidelines recognize that the
enhancements provided in USSG §§2L1.2(b)(2) or (b)(3) may substantially understate or overstate
the seriousness of the conduct underlying the prior offense in specified instances. In such cases, a
departure may be warranted. USSG §2L1.2 Commentary n.5.
7.d. Cases Interpreting Reentry Guidelines—These decisions in many cases interpret earlier versions of
§2L.1.2 and are included because they may be relevant authority in another context.
(1) Sentencing Cases Under Illegal Reentry Guidelines—Court looks to the reasonableness of the
sentence. U.S. v. Cueto-Nunez, 869 F.3d 31 (1st Cir. 2017) [57-month sentence for attempted reentry
after deportation for aggravated felony was within guidelines and reasonable despite government’s
request for a 46-month sentence]; U.S. v. Rosales-Mireles, 850 F.3d 246 (5th Cir. 2017) [78-month
sentence was reasonable given past conviction for reentry, history of assaults, and multiple aliases];
U.S. v. Osorio-Moreno, 814 F.3d 1282 (11th Cir. 2016) [a sentence of 120 months for illegal reentry,
which was significantly more than the guideline range of 51 to 63 months, was substantively
reasonable for a person who had 20 prior convictions ranging from drug trafficking to violent crimes
against women and police officers]; U.S. v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015) [sentence of
87 months was substantively reasonable despite reversal previously for 87 months and despite 0-6
months Guideline range]; U.S. v. Gerezano-Rosales, 692 F.3d 393 (5th Cir. 2012) [vacated 108-month
sentence where district court raised sentence because defendant was disrespectful to court by
questioning original 71-month sentence]; U.S. v. Paulino-Duarte, 670 F.3d 842 (8th Cir. 2012) [77-
month sentence, at low end of Guideline range, was reasonable given 11 prior convictions and prior
57-month sentence for illegal reentry]; U.S. v. Balbin-Mesa, 643 F.3d 783 (10th Cir. 2011) [28-month
below-Guidelines sentence was substantively reasonable]; U.S. v. Vasquez-Alcarez, 647 F.3d 973
(10th Cir. 2011) [sentence of 27 months after cocaine trafficking was reasonable]; U.S. v. Mejia-Perez,
635 F.3d 351 (8th Cir. 2011) [sentence of 20 months significantly above the 6-month guideline
maximum upheld based upon repeated illegal entries and minor crimes]; U.S. v. Talamantes, 620 F.3d
901 (8th Cir. 2010) [77-month sentence after commission of aggravated felony was within guideline
range]; U.S. v. Fernandez-Cabrera, 625 F.3d 48, 53 (1st Cir. 2010) [33-month sentence within
Guideline range was reasonable]; U.S. v. Velasquez-Torrez, 609 F.3d 743 (5th Cir. 2009) [court used
defendant’s admission that information in PSR is correct to enhance sentence to 37 months]; U.S. v.
Chavez-Suarez, 397 F.3d 1137 (10th Cir. 2010) [finding that the courts can consider the age of the
conviction and seriousness of it but upholding a 41-year sentence]; U.S. v. Bolivar-Diaz, 594 F.3d 1003
(8th Cir. 2010) [41-month sentence after lifetime of criminal activity]; U.S. v. Amezcua-Vasquez, 567
F.3d 1050, 1054–58 (9th Cir. 2009) [52-month sentence within Guidelines for 16-level enhancement
was unreasonable because the age of the conviction (28 years) and the individual’s circumstances
required a variance under 18 USC §3553(a) from a Guidelines sentence]. See also U.S. v. Perez-
Frias, 636 F.3d 39, 43-44 (2d Cir. 2011) Page 424 [rejected challenged to Commission’s decision to
have a 16-level enhancement]; U.S. v. Lopez-Reyes, 589 F.3d 667 (3d Cir. 2009) [upholding 46-month
sentence where petitioner challenged §2L1.2 Guideline as empirically and substantively unreasonable
under Kimbrough given his nonviolent conviction for robbery]; U.S. v. Cruz-Perez, 567 F.3d 1142, 1147
(9th Cir. 2009) [upholding 48-month above-Guidelines sentence]; U.S. v. Mondragon-Santiago, 564
F.3d 357 (5th Cir. 2009) [despite judge’s failure to explain sentence and mischaracterization of prior
conviction as aggravated felony, a 50-month sentence was within Guideline range and reasonable];
U.S. v. Ruelas-Mendez, 556 F.3d 655 (8th Cir. 2009) [46-month sentence was reasonable after
cocaine trafficking]; U.S. v. Yanez-Rodriguez, 555 F.3d 931, 945–49 (10th Cir. 2009) [144-month
sentence that was an upward departure beyond Guidelines where defendant had prior aggravated
sexual battery conviction was not an abuse of discretion]; U.S. v. Navarrete-Medina, 554 F.3d 1312
(10th Cir. 2008) [no abuse of discretion in declining to grant a downward departure due to defendant’s
claim that his offense was motivated by his need for life-saving medication]; U.S. v. Martinez-Barragan,
545 F.3d 894 (10th Cir. 2008) [upholding 77-month sentence that post-Booker, Rita and Gall judge
found was within the “heartland” of typical cases]; U.S. v. Martinez-Varela, 531 F.3d 298 (4th Cir. 2008)
[upholding the right of the district court to aggregate the terms of imprisonment under USSG §4A1.2(b)
for 3 prior aggravated (drug trafficking) felonies committed on the same day, thus permitting the court
to mandate a 16-level upward adjustment]; U.S. v. Juarez-Duarte, 513 F.3d 204 (5th Cir. 2007)
[upholding 87-month enhanced sentence for prior cocaine trafficking conviction and obstruction of
justice due to defendant’s request for a translator at his sentencing when he did not need one]; U.S. v.
Perez-Perez, 512 F.3d 514 (9th Cir. 2008) [post-Rita a 62-month and 2-week sentence within the
Guidelines was reasonable]; U.S. v. Antuna-Moran, 488 F.3d 1048 (5th Cir. 2007) [upholding 46-month
sentence where district court improperly determined that prior conviction was a COV but in the
alternative provided the 46-month sentence if Guideline determination was incorrect]; U.S. v. Trejo-
Martinez, 481 F.3d 409 (6th Cir. 2007) [46-month sentence and 2 years’ supervised release upheld on
reasonableness grounds]; U.S. v. Gama-Gonzales, 469 F.3d 1109 (7th Cir. 2006) [37-month sentence
was modest in light of defendant’s history of criminal activity and his immediate illegal return to U.S. for
a third time]; U.S. v. Valtierra-Rojas, 468 F.3d 1235 (10th Cir. 2006) [sentence above Guideline range
is not presumptively unreasonable although the greater the divergence the more compelling the
reasons should be; 60-month sentence was reasonable even though it was 30 months above
Guideline range]; U.S. v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. 2006) [48-month sentence was
reasonable and within Guidelines]; U.S. v. Cadenas, 445 F.3d 1091 (8th Cir. 2006) [upholding
sentence over claim that judge did not sufficiently consider political conditions in Colombia causing
duress]; U.S. v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006) [upholding 60-month sentence for
reentry after COV where the range was 57–71 months; Booker does not require the judge to state on
the record that he considered each of the 18 USC §3553(a) factors]; U.S. v. Montes-Pineda, 445 F.3d
375, 377–78 (4th Cir. 2006) [upholding 46-month sentence for aggravated felon who reentered
notwithstanding claims that he reentered to be with his family, his aggravated felony conviction
occurred 14 years ago and he has never served a lengthy jail sentence]; U.S. v. Chavez-Diaz, 444
F.3d 1223, 1227–30 (10th Cir. 2006) [30-month sentence was within Guideline range and district court
was correct in not granting downward departure based on bad immigration advice or ignorance of the
law]; U.S. v. Martinez, 434 F.3d 1318 (11th Cir. 2006) [87-month sentence not unreasonable, where
defendant had a violent criminal history, the maximum penalty was 20 years, and the sentence was
within the Guideline range]. The court need not state why it chose a particular sentence if it considers
the appropriate factors under §3553(a).U.S. v. Maciel-Vasquez, 458 F.3d 994, 995 (9th Cir. 2006)
[upholding 36-month sentence for reentry post-Booker despite defendant’s claim that court relied on
Guidelines and failed to state why it chose a particular sentence]. A sentence within the Guideline
range may be supported by a “general statement” of the reasons for the sentence, but a sentence
outside the Guideline range should provide specific reasons that must be stated with specificity in a
written order. U.S. v. Ruiz-Terrazas, 477 F.3d 1196, 1199–1203 (10th Cir. 2007). The court may rely on
documents beyond those specified in Shepard when determining a sentence under §3553(a). U.S. v.
Ventura, 650 F.3d 746 (D.C. Cir. 2011) Page 425 [sentencing defendant pursuant to §3553(a) to 43
months above the upper bounds of the Guidelines on illegal-reentry case, where there was violence
against a minor as stated in PSR]. One court has found the USSG in regard to reentry cases is flawed
in that its 8-level upward adjustment (because a person is deemed to have a prior aggravated felony)
lacks empirical data to support its use and because it allows double counting as a prior conviction is
counted both in the person’s criminal history and then to enhance the sentence on reentry. U.S. v.
Garcia-Jaquez, 807 F.Supp.2d 1005 (D. Colo. 2011) [reduced sentence under the Guideline range to
14 months]. U.S. v. Estrella, 758 F.3d 1239 (11th Cir. 2014) [violation of Fla. Stat. §790.19 for wantonly
or maliciously throwing a missile at an occupied vehicle is not a COV under USSG §2L1.2(b)(1)(A)(ii)
under either the categorical or modified categorical approach]; U.S. v. Gomez, 757 F.3d 885, 902-09
(9th Cir. 2014) [because attempted sexual contact with a minor under the age of 15 under Ariz. Rev.
Stat. 13-1405 is missing a constitute element for statutory rape it is not categorically a COV, and under
Descamps there is no need to make further inquiry]; U.S. v. Palomino Garcia, 606 F.3d 1317, 1325-37
(11th Cir. 2010) [reversed sentence based upon crime of violence, ignored the label aggravated
assault under Ariz. Rev. Stat. §13-1204(A)(7), and held that conviction did not require use of a deadly
weapon or serious bodily injury and contained a mens rea only of recklessness]. But see U.S. v.
Castillo, 811 F.3d 342 (10th Cir. 2015) [robbery under Cal. Penal Code §211 qualifies as a COV
warranting upward adjustment in sentence]; U.S. v. Ramirez-Gonzalez, 755 F.3d 1267, 1270-72 (11th
Cir. 2014) [Ga. Code Ann. §16-6-5 for soliciting or enticing a child under 16 for the purpose of indecent
acts is sexual abuse of a minor and therefore a COV, because sexual abuse of a minor includes both
physical and nonphysical misuse and maltreatment of a minor]; U.S. v. Quintero-Junco, 754 F.3d 746
(9th Cir. 2014) [a conviction for nonconsensual sexual contact with a person over 15 under Ariz. Rev.
Stat. §13-1404 is a forcible sex offense and does not require penetration, as nonconsent with sexual
contact is sufficient]; U.S. v. Ruiz-Apolonio, 657 F.3d 907, 911-16 (9th Cir. 2011) [rape under Cal. Penal
Code §261(a)(2) is a COV]; U.S. v. Reyes-Alfonso, 653 F.3d 1137 (10th Cir. 2011) [sexual contact-no
consent under Colo. Rev. Stat. §18-3-404(1) is a COV under USSG notwithstanding Johnson v. U.S.];
U.S. v. Contreras-Hernandez, 628 F.3d 1169 (9th Cir. 2011) [solicitation to commit murder under Cal.
Penal Code §653f(b) is a COV]; U.S. v. Lopez-Reyes, 589 F.3d 667 (3d Cir. 2009) [upholding 46-
month sentence for illegal reentry after removal for aggravated felony despite challenge to §2L1.2 as
empirically and substantively unreasonable given his nonviolent conviction for robbery]; U.S. v. Yanez-
Rodriguez, 555 F.3d 931, 944–45 (10th Cir. 2009) [aggravated sexual battery under former Kan. Stat.
Ann. §21-3518 is categorically a COV because nonconsent in context of sexual conduct is necessarily
forcible]; U.S. v. Becerril-Lopez, 541 F.3d 881, 891–92 (9th Cir. 2008) [defendant convicted of reentry
after robbery, 16-level adjustment permitted even if conviction would not be robbery under §2L1.2
because it would constitute extortion and therefore remain a COV]; U.S. v. Ortiz-Delgado, 451 F.3d
752, 753–57 (11th Cir. 2006) [lewd acts upon a child, Cal. Penal Code §288, is a COV warranting post-
Booker consideration of a 16-level upward adjustment because sexual abuse of a minor is a COV
under §2L1.2(b)(1)(A)(ii)]. A crime may be a COV for purposes of an upward adjustment even if it is
not an aggravated felony. U.S. v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008) [defendant convicted of
non–aggravated felony robbery]; U.S. v. Diaz-Argueta, 564 F.3d 1047, 1050 (9th Cir. 2009) [a COV
need not be an aggravated felony to warrant a 16-level upward adjustment if sentenced under USSG
§2L1.2(b)(1)(A)(ii)]. A crime that is listed under the Sentencing Guidelines as a COV is subject to a 16-
level upward adjustment even if it did not result in violence. U.S. v. Cuevas-Bravo, 780 F.3d 1024,
1030 (10th Cir. 2015) [defendant convicted of aggravated felony burglary was subject to upward
adjustment even though there was no criminal violence because no requirement in the Guidelines that
it had actually result in violence].
(2) Sentencing for “Found in” the U.S. Under Current and Prior Guidelines—U.S. v. Medina-Torres, 703
F.3d 770 (5th Cir. 2012) [followed Jaggernauth in analysis of Florida theft statute and vacated sentence
finding there was no proof that defendant was convicted of an aggravated felony]; U.S. v. Reyes-Ceja,
712 F.3d 1284 (9th Cir. 2013) [citing 5th, 10th, and 11th circuits that it is appropriate to add 2 points in
sentencing pursuant to USSG §4A1.1(d) to person illegally in U.S. who was “found in” prison]; U.S. v.
Cano-Rodriguez, 552 F.3d 637, 639 (7th Cir. 2009) Page 426 [same]; U.S. v. Rodriguez-Rodriguez,
530 F.3d 381 (5th Cir. 2008) [upholding 57-month sentence at low end of Guideline range in “found in”
case after S.Ct. remand under Gall v. U.S., 552 U.S. 38 (2007)]; U.S. v. Gordon, 513 F.3d 659, 666–67
(7th Cir. 2008) [96-month sentence, although 25 months above the high end of the Guidelines, was not
unreasonable or an abuse of discretion under Gall where defendant used former “green card” to
reenter, where judge believed he would return to the U.S. because he had nothing in Belize and again
prey on the elderly]. The Sentencing Guidelines that are applicable in “found in” cases are those at the
time the person is found in the U.S. not at time of reentry; U.S. v. Estrada-Quijas, 183 F.3d 758 (8th
Cir. 1999) [“found in” is a continuing violation and a defendant is therefore subject to the definition of
“aggravated felony” at the time he is discovered]; U.S. v. Rodriguez, 26 F.3d 4 (1st Cir. 1994) [person
sentenced under “found in” provision that changed after person’s reentry but before he was found in
U.S. does not violate ex post facto clause]; U.S. v. Whitaker, 999 F.2d 38 (2d Cir. 1993); U.S. v. Rivera,
942 F.Supp. 247 (E.D. Vt. 1996). But see U.S. v. Hernandez-Gonzalez, 495 F.3d 55 (3d Cir. 2007) [for
purposes of USSG §4A1.2(e)(2) of the Guidelines, counting the past 10 years of prior sentences
begins from the date defendant re-entered the U.S. and not the date he was “found in” the U.S.]; U.S.
v. Delgado-Hernandez, 646 F.3d 562 (8th Cir. 2011) [for purpose of enhancement of sentences the
date the person reentered the country, rather than the date he was found in the country, may be used
when appropriate]; U.S. v. Hernandez-Guerrero, 633 F.3d 933 (9th Cir. 2011) [same]; U.S. v. Garcia-
Jimenez, 623 F.3d 936 (9th Cir. 2010) [37-month sentence upheld]. A downward departure of a
sentence may be based on time served in state custody. USSG §2L1.2 Note 8 [court may consider
whether a departure is appropriate for part or all the time served in state custody from the time
immigration locates the defendant until his federal service commences].
(3) Cases Interpreting Definition of Aggravated Felony Under Reentry Guidelines—An aggravated felony
should not be defined rigidly. U.S. v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. 2003) [2nd conviction for
possession of marijuana is not a felony triggering aggravated felony enhancement]; U.S. v. Arellano-
Torres, 303 F.3d 1173, 1178 (9th Cir. 2002) [same]. If statute did not define act as aggravated felony at
the time it was committed, it is a violation of the Ex Post Facto Clause to apply the upward adjustment.
U.S. v. Avila-Ramirez, 170 F.3d 277 (2d Cir. 1999) [no enhancement for aggravated felony where
conviction for indecent assault and the crime of reentry were completed prior to the IIRIRA
amendments making abuse of a minor an aggravated felony].
(4) Definition of Aggravated Felony Void for Vagueness—Under USSG §2L1.2(b)(1)(C) an 8-level
enhancement is imposed on a defendant who illegally reenters after conviction for an aggravated
felony. Where the underlying felony involves crimes of violence under 18 USC §16(b), the lower courts
post-Johnson v. U.S., 135 S.Ct. 2551 (2015) have held that the sentencing guideline is unconstitutional
because 16(b) is void for vagueness. U.S. v. Hernandez-Lara, 817 F.3d 651 (9th Cir. 2016) [following
Dimaya, the court held that §16(b) as incorporated in USSG §2L1.2(b)(1)(C) is void for vagueness].
And the Supreme Court has found 18 USC §16(b) unconstitutionally void-for-vagueness. In Sessions
v. Dimaya, 584 U.S. ___, 138 S.Ct. 1204 (2018) the Supreme Court struck down the “ordinary case”
approach and §16b as void-for-vagueness in determining that Cal. Penal Code §459 [first degree
burglary] was not a crime-of-violence aggravated felony. Finding that “Johnson is a straightforward
decision, with equally straightforward application here” Dimaya, 138 S.Ct. at 1213, the Court
concluded that “§16(b) has the same ‘[t]wo features’ [ordinary case requirement and ill-defined risk]
that ‘conspire[d] to make [ACCA’s residual clause] unconstitutionally vague.’ ” Dimaya, 138 S.Ct. at
1216.
(5) Guidelines and INA the Same?—There is a question in the circuits as to whether aggravated felonies,
for purposes of the Guidelines and the INA, are identical or distinct. U.S. v. Martinez-Gonzalez, 663
F.3d 1305, 1309 (11th Cir. 2011) [“Section 2L1.2(b) of the Guidelines references and specifically
adopts the civil standard from the deportation provisions of the Immigration and Nationality Act. Thus,
§2L1.2(b) requires courts in criminal actions to apply the same standard it would in a civil immigration
case”]; U.S. v. Medina-Torres, 703 F.3d 770 (5th Cir. 2012) [followed Jaggernauth, and immigration
cases, in analysis of Florida theft statute and vacated sentence]. But see Cazarez-Gutierrez v.
Ashcroft, 382 F.3d 905, 912–14 (9th Cir. 2004) Page 427 [distinguishing aggravated felony analysis for
immigration purposes from sentencing purposes where the “states possess primary authority for
defining and enforcing the criminal law”]; U.S. v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999) [definition
of aggravated felony under USSG §2L1.2(b)(1)(A) is distinct from INA definition; Aguirre distinguished];
U.S. v. Lazo-Ortiz, 136 F.3d 1282 (11th Cir. 1998) [neither the definition of aggravated felony at INA
§101(a)(43), nor the definition under INA §276, apply to the Guidelines thereby permitting retroactive
application of definition of COV]; U.S. v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997) [possession of a
firearm under §922(g)(5), while an aggravated felony under the INA, is not an aggravated felony under
USSG §2L1.2(b) (note)]; U.S. v. Rios-Favela, No. 96-50128 (9th Cir. June 25, 1997); U.S. v. Munoz-
Cerna, 47 F.3d 207, 212 (7th Cir. 1995); but see Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1067 (9th
Cir. 2003) [reading Matter of Yanez-Garcia to require IJs to follow Sentencing Guideline as well as
immigration cases interpreting aggravated felonies]; U.S. v. Fuentes-Barahona, 111 F.3d 651 (9th Cir.
1997) [suggesting date limitation under agg. felony statute applied to sentencing Guidelines]; U.S. v.
Maul-Valverde, 10 F.3d 544 (8th Cir. 1993) [citing to other cases addressing aggravated felony issues].
The BIA previously determined that “crimes of violence” are defined differently under USSG §4B1.2(a)
(1)(ii) than under the INA aggravated felony provision because the former finds a COV if there is a risk
of physical injury whereas the latter requires a risk of physical force. Matter of Sweetser, 22 I&N Dec.
709 (BIA 1999). In drug cases, however, the BIA agreed with a number of circuits that refused to make
a distinction between sentencing enhancement and immigration cases when interpreting whether a
state felony is an aggravated felony. Matter of Yanez-Garcia, 23 I&N Dec. 390, 396 (BIA 2002)
[reversing Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999), and finding that a state felony drug
conviction will be considered an aggravated felony under federal law, even if the crime is a
misdemeanor under federal law]. See also U.S. v. Hernandez-Avalos, 251 F.3d 505, 508–10 (5th Cir.
2001) [rejecting Matter of L-G- and Matter of K-V-D-, finding no basis to distinguish between
Sentencing Guideline and immigration cases, and determined that possession of heroin is an
aggravated felony because it was punishable under §844(a) and it is a felony under state law]. But the
Supreme Court in Lopez v. Gonzales, 549 U.S. 47 (2006), rejected Matter of Yanez-Garcia to the
extent it held that a state felony can be treated as an aggravated felony under the Controlled
Substances Act if it is not a felony under federal law.
(6) Does the Age of the Conviction Matter When it is an Aggravated Felony?—Cases have challenged
the rote application of the upward enhancement based upon aggravated felony convictions that are
old/stale claiming they result in the substantive unreasonableness of the sentence. U.S. v. Amezcua-
Vasquez, 567 F.3d 1050, 1055-58 (9th Cir. 2009) [use of 25-year-old attempted manslaughter
conviction was an abuse of discretion], but see U.S. v. Rodriguez, 660 F.3d 231 (5th Cir. 2011) (and
cases cited therein) [rejecting time limit related to age of conviction on use as an enhancement for
commission of an aggravated felony]. Under the 2011 USSG amendments the remoteness of the
conviction did affect the level of upward adjustment.
(7) State or Federal Definition Applies to Aggravated Felony?—The Supreme Court resolved the issue of
whether a felony conviction under state law but not a felony under federal law can be considered an
aggravated felony. A person must be convicted of a crime that is a felony under federal law. Lopez v.
Gonzales, 549 U.S. 47 (2006). In Lopez, the Court rejected the approach articulated in Matter of
Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002), that a state felony conviction is sufficient to be an
aggravated felony under 18 USC §924(c)(2) even if it is not a felony under federal law. The Court
determined that a South Dakota conviction for aiding and abetting another person’s possession of
cocaine, while a felony under state law, could not be an aggravated felony because under federal law
the conviction is treated as a misdemeanor. The Court held that “a state offense constitutes a ‘felony
punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony
under that federal law.” 549 U.S. 47, 60 (2006). Conversely, there is an issue as to whether a state
conviction that is a misdemeanor under state law can be an aggravated felony for sentence
enhancement. U.S. v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. 1999) Page 428 [Mass. misdemeanor
first offense possession with intent to distribute was not aggravated felony under Sentencing
Guidelines]. But see U.S. v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001) [although 3rd degree
attempted child molestation is a misdemeanor under Wash. state law, it is an aggravated felony for
sentencing enhancement]; U.S. v. Christopher, 239 F.3d 1191 (11th Cir. 2001) [theft by shoplifting
although a misdemeanor under state law was agg. felony where sentence imposed, although
suspended, was one year]; U.S. v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000); Wireko v. Reno, 211
F.3d 833, 835 (4th Cir. 2000); U.S. v. Graham, 169 F.3d 787, 792 (3d Cir. 1999).
(8) Definition of Conviction Under INA or Guidelines—There is also an issue whether INA §101(a)(48)(A)
or USSG §4A1.2(a)(4) applies to determine whether a person has been convicted for sentencing
purposes. U.S. v. Canelas-Amador, 837 F.3d 668 (6th Cir. 2016) [discussing the circuit split on this
issue and deciding that the INA definition applies given the Rule of Lenity and where the state court did
not have an opportunity to impose a sentence despite an acceptance of plea of guilty under Tennessee
law, defendant was not convicted under the INA]. A diversionary disposition such as withholding of
adjudication may not count as a prior sentence for purposes of sentencing but it does qualify the
person for a single criminal-history point. U.S. v. Baptiste, 876 F.3d 1057 (11th Cir. 2017) [reversing
sentence because withhold under Florida law was improperly treated as a prior sentence instead of a
diversionary disposition].
(9) Definition of Term of Imprisonment Under Current and Prior Guidelines—There is also an issue as to
whether INA §101(a)(48)(B) or USSG §4A1.2(b) applies in defining “term of imprisonment” for
purposes of the enhancement provision. U.S. v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir. 1999) [INA
§101(a)(48)(B) defines “term of imprisonment” for purposes of an enhancement as an aggravated
felon]; U.S. v. Maldonado-Ramirez, 216 F.3d 940 (11th Cir. 2000) [same].The term of imprisonment
under the 2003 amendments now includes any terms of imprisonment given upon revocation of
probation, parole, or supervised release. One court has read the term of imprisonment under
§4A1.2(b) to allow the sentences to be aggregated thus resulting in a 16-level upward adjustment
under USSG §2L1.2(b)(1)(A). U.S. v. Martinez-Varela, 531 F.3d 298 (4th Cir. 2008) [upholding the right
of the district court to aggregate the terms of imprisonment for 3 prior aggravated (drug trafficking)
felonies committed on the same day, thus permitting the court to mandate a 16-level upward
adjustment in the sentence].
7.e. Sentencing Cases Post-Booker
(1) Sentencing for Transportation/Smuggling of Undocumented Persons—U.S. v. Chirino-Alvarez, 615

F.3d 1344 (11th Cir. 2010) [statutory minimum mandatory of five years upheld for conspiracy to
encourage and induce persons to enter and aiding and abetting bringing persons to U.S.]; U.S. v.
Garza, 587 F.3d 304 (5th Cir. 2009) [correcting plea from transportation for gain to transportation did
not affect the sentence]; U.S. v. Struzik, 572 F.3d 484 (8th Cir. 2009) [12-month sentence for alien
smuggling was reasonable]; U.S. v. Lemus-Gonzalez, 563 F.3d 88 (5th Cir. 2009) [30-year sentence
for transporting illegal aliens for commercial advantage or private gain resulting in the death of 5
people did not violate Sixth Amendment, was below statutory maximum of life imprisonment, and use
of 2nd degree murder guidelines was not unreasonable]; U.S. v. Rodriguez, 553 F.3d 380, 394–96 (5th
Cir. 2008) [upholding substantial upward departure where multiple deaths resulted from a smuggling
operation]; U.S. v. Sanchez-Ramirez, 497 F.3d 531 (5th Cir. 2007) [80-month sentence which was
above Guideline range was reasonable given the heinous conduct toward smuggled aliens]; U.S. v.
Hussein Al Nasser, 479 F.3d 1166, 1170–72 (9th Cir. 2007) [sentence reasonable even where there
was no direct evidence that defendant received funds because under 2003 guidelines it did not
matter]; U.S. v. Martinez-Vives, 475 F.3d 48, 54–56 (1st Cir. 2007) [giving greater sentence for person
who goes to trial is permissible].
(2) Sentencing for Trafficking in False Documents—Sentencing Cases for Violations of 18 USC §1546(a)
[using or attempting to use forged, counterfeit or altered immigration documents]—U.S. v. Zapete-
Garcia, 447 F.3d 57 (1st Cir. 2006) [reversing sentence where judge used previous deportation to
substantially enhance sentence when Guidelines already included a 2-level upward adjustment for
previous deportation and judge did not explain Page 429 why that was insufficient]; U.S. v. Rivera, 516
F.3d 500 (6th Cir. 2008) [defendant convicted under 18 USC §1028 for unauthorized production of
Tenn. driver’s licenses successfully challenged the use of §2L2.1 because he did not traffic in
immigration documents]; U.S. v. Tesillos, 965 F.Supp.2d 1037 (E.D. Wis. 2013) [defendant given 8-
month sentence where Guidelines were 24-30 months for counterfeiting immigration documents in
violation of 18 USC §1546 as court considered punitive aspect of removal and fact that defendant
would remain in ICE custody].
(3) Sentencing for Fraud and Misuse of Documents under 18 USC §1546(b)(3)—In conviction for fraud
on I-9 where defendant stated she was USC and perjury on I-485 for stating she had not been
arrested, court departed downward under Guidelines and gave defendant 3 years’ probation. U.S. v.
Todd, 618 F.Supp.2d 1349 (M.D. Ala. 2009) [defendant lived in the U.S. for 20 years, had no other
criminal convictions, had two USC children and USC husband, had already been punished through
separation from her family as a result of 4-month immigration custody, and posed no danger to the
public].
(4) Unlawful Procurement of Citizenship or Naturalization under 18 USC §1425(a), 1546(a)—U.S. v.

Worku, 800 F.3d 1195, 1207-08 (10th Cir. 2015) [a sentence of 22 years—the maximum for each count
for unlawful procurement of citizenship, fraud, and misuse of visas and aggravated identity theft—was
substantively reasonable despite guideline range of 3 years where person engaged in acts to conceal
prior human rights violations in Ethiopia].
(5) False Statement on a Passport Application under 18 USC §1542—U.S. v. Hasan, 586 F.3d 161 (2d
Cir. 2009) [upheld 52-month sentence for making false statement on passport application and other
offenses]; U.S. v. McKinzie, 557 F.3d 931 (8th Cir. 2009) [30-month sentence for §1542 violation
concurrently with reentry violation where Guideline range was 6–12 months].
(6) Sentencing in Forced Labor Cases—U.S. v. Calimlim, 538 F.3d 706, 715–18 (7th Cir. 2008) [on
government’s cross-appeal, district court’s failure to consider higher sentence for commission of
“another felony” under USSG §2H4.1, for a “vulnerable victim” under USSG §3A1.1(b)(1), and for “use
of a minor child to commit the crime” under USSG §3B1.4 compels reversal for resentencing].
(7) Definition of a Sentence—Under prior law, a deferred adjudication is considered a conviction pursuant
to sentencing guideline §4A1.2(f) even if it would not be a conviction for immigration purposes.U.S. v.
Valdez-Valdez, 143 F.3d 196 (5th Cir. 1998) [Texas deferred adjudication statute deemed a conviction
for sentencing enhancement]; U.S. v. Campbell, 167 F.3d 94 (2d Cir. 1999) [same]. Indeterminate
sentences are deemed to be for maximum sentence and thus meet the 5-year requirement for an
aggravated felony where 5 years is required. Matter of Jean, 23 I&N Dec. 373, 386 n.14 (AG
2002);U.S. v. Galicia-Delgado, 130 F.3d 518 (2d Cir. 1997) [30- to 90-month sentence for attempted
robbery is aggravated felony even where defendant served less than 5 years]; U.S. v. Quinonez-
Terrazas, 86 F.3d 382 (5th Cir. 1996) [indeterminate sentence of 4–6 years is aggravated felony where
definition required 5-year sentence]; U.S. v. DeLeon-Rodriguez, 70 F.3d 764 (3d Cir. 1995) [same]. A
suspended sentence is considered a term of imprisonment in determining whether crime is an
aggravated felony. U.S. v. Tejeda-Perez, 199 F.3d 981 (8th Cir. 1999) [INA §101(a)(48)(B), which treats
suspended sentences the same as a term of imprisonment, is the controlling provision rather than
USSG §4A1.2(b)]. But probation is not a sentence to imprisonment under §2L1.2. U.S. v. Lopez-
Vasquez, 227 F.3d 476, 481 n.8 (5th Cir. 2000). A sentence that is imposed and then probated,
however, may be considered a sentence under §101(a)(48)(B). U.S. v. Ayala-Gomez, 255 F.3d 1314
(11th Cir. 2001) [sentence that was probated is considered suspended for purposes of statute and
therefore full sentence must be considered].
7.f. Upward and Downward Adjustments of Sentence
(1) Sixteen-Level Adjustment Warranted (primarily under former USSG §2L1.2)—U.S. v. Chavez-Suarez,
397 F.3d 1137 (10th Cir. 2010) [finding that the courts can consider the age of the conviction and
seriousness of it in regard to other 16-level conduct, but upholding the 41-month sentence for illegal
reentry as reasonable]; U.S. v. Martinez-Varela, 531 F.3d 298 (4th Cir. 2008) Page 430 [upholding the
right of the district court to aggregate the terms of imprisonment under USSG §4A1.2(b) for 3 prior
aggravated (drug trafficking) felonies committed on the same day, thus permitting the court to mandate
a 16-level upward adjustment]; U.S. v. Galinda-Gallegos, 244 F.3d 728, 733 (9th Cir. 2001)
[transporting aliens in the U.S. is an agg. felony even though it was not a conviction for smuggling];
U.S. v. Polanco, 47 F.3d 516 (2d Cir. 1995) [reversing refusal of district judge to grant 16-level
enhancement of sentence as aggravated felon because of practice of NY defense bar to plead clients
to low-level drug offenses and because the gross unfairness of the Guidelines might raise due process
concerns]; U.S. v. Mendoza-Iribe, 198 F.3d 742 (9th Cir. 1999) [upward 16-level adjustment applicable
even if act was not aggravated felony at the time of conviction]; U.S. v. Cazares-Gonzalez, 152 F.3d
889 (8th Cir. 1998)[same]; U.S. v. Lazo-Ortiz, 136 F.3d 1282 (11th Cir. 1998) [same]; U.S. v. Munoz-
Cerna, 47 F.3d 207 (7th Cir. 1995) [same]; U.S. v. Campbell, 94 F.3d 125 (4th Cir. 1996) [same]; U.S.
v. Garcia-Rico, 46 F.3d 8 (5th Cir. 1996) [same]; U.S. v. Nwene, 20 F.Supp.2d 716, 723–25 (D.N.J.
1998) [same]; Carvajales-Cepeda v. Meissner, 966 F.Supp. 207 (S.D.N.Y. 1997) [same]; U.S. v.
Arzate-Nunez, 18 F.3d 730, 733–35 (9th Cir. 1994) [rejecting ex post facto argument where aggravated
felony committed before aggravated felony act passed]; U.S. v. Cabrera-Sosa, 81 F.3d 998 (10th Cir.
1996) [same]; U.S. v. Crawford, 18 F.3d 1173 (4th Cir. 1994); U.S. v. Lozano, 138 F.3d 915 (11th Cir.
1998) [rejecting general ex post facto challenge to sentence enhancement provision]; U.S. v. Forbes,
16 F.3d 1294 (1st Cir. 1994) [rejecting ex post facto claim]; U.S. v. Valdez, 103 F.3d 95 (10th Cir. 1996)
[same]; U.S. v. Frios-Trujillo, 9 F.3d 875 (10th Cir. 1993) [allowing enhancement where person
committed burglary but pleaded guilty only to reentry after commission of a felony under 8 USC
§1326(b)(1), not after commission of aggravated felony]. But see U.S. v. Gomez-Ortiz, 62 F.Supp.2d
508 (D.R.I. 1999) [Mass. misdemeanor for first offense possession with intent to distribute was not
aggravated felony under Sentencing Guidelines; 16-level enhancement unwarranted]; U.S. v. Fuentes-
Barahona, 111 F.3d 651 (9th Cir. 1997) [COV committed prior to Nov. 29, 1990, cannot be aggravated
felony for sentence enhancement]; U.S. v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992) [unless
element was proven cannot enhance sentence].
(2) Downward Departure Post-Booker—U.S. v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005) [reversing
41-month sentence for an innocuous prior 3rd degree arson conviction (throwing a match in a car),
where sentence would be “plain error” under Booker].
(3) Downward Departure Pre-Booker—The pre-Nov. 1, 2016 Guidelines at note 5 provided for a
downward departure of the 16-level enhancement under then §2L1.2(b)(1)(A) where: (1) the defendant
has previously been convicted of only one felony; (2) the offense was not a COV or firearms offense;
and (3) the term of imprisonment imposed did not exceed one year. A downward departure may also
be given for delay in indicting a person in an illegal-reentry case. U.S. v. Martinez-Salazar, 318
F.Supp.2d 127 (S.D.N.Y. 2004). Downward departure was also permissible, pre-Booker, under Koon v.
U.S., 518 U.S. 81 (1996), if the court found that there was a mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in formulating the
Guidelines. U.S. v. Jauregui, 314 F.3d 961 (8th Cir. 2003) [waiver of removal hearing by LPR is
sufficient to give a 4-level downward adjustment in a sentencing for sale of drugs]; U.S. v. Rodriguez-
Montelongo, 263 F.3d 429 (5th Cir. 2001) [cultural assimilation is a valid ground for downward
departure in illegal reentry case]; U.S. v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en banc)
[in §1326 case where the predicate offense was a $20 heroin sale, district court may depart in its
discretion based on the nature and circumstances of the underlying aggravated felony]; U.S. v.
Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998) [permitting downward departure for cultural
assimilation]; U.S. v. Diaz-Diaz, 135 F.3d 572, 581 (8th Cir. 1998) [affirming downward departure in a
sale of 8.3 grams of marijuana because the seriousness of the offense was drastically overstated];
U.S. v. Lipman, 133 F.3d 726, 729–31 (9th Cir. 1998)] [same]. But see U.S. v. Palomino-Rivera, 258
F.3d 656 (7th Cir. 2001) [rejecting arguments under Note 5 and Koon]; Flores-Diaz v. U.S., 516
F.Supp.2d 818, 828 (S.D. Tex. 2007) [repeat offender was not culturally assimilated]. The status of
being a deportable alien and therefore serving a harsher prison sentence because of ineligibility for
prison programs such as a halfway house, is not a basis in the view of some courts Page 431 for a
downward adjustment, U.S. v. Veloza, 83 F.3d 380 (11th Cir. 1996); U.S. v. Maung, 320 F.3d 1305
(11th Cir. 2003)[sentencing court may not depart downward to take a crime out of the definition of an
aggravated felony to shield defendant from immigration consequences]; U.S. v. Aleskerova, 300 F.3d
286, 300 (2d Cir. 2002); U.S. v. Ebolum, 72 F.3d 35 (6th Cir. 1995); U.S. v. Mendoza-Lopez, 7 F.3d
1483, 1486 (10th Cir. 1993); U.S. v. Alvarez-Cardenas, 902 F.2d 734 (9th Cir. 1990);U.S. v. Restrepo,
999 F.2d 640 (2d Cir. 1993) [departure may be permissible if the effect of deportation is beyond the
ordinary]; U.S. v. Santos, 940 F.Supp. 275 (D. Haw. 1996) [rejecting equal protection argument]. But
see U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994). It is impermissible to give downward adjustment
because the reason for the reentry was to visit family or because drug conviction was minor. U.S. v.
Abreu-Cabrera, 64 F.3d 67, 74–76 (2d Cir. 1995). Departure from Sentencing Guidelines because
deportable person would not serve probation is impermissible. U.S. v. Chavez-Botello, 905 F.2d 279,
281 (9th Cir. 1990). See also U.S. v. Amaya-Benitez, 69 F.3d 1243 (2d Cir. 1995) [cannot look at
underlying circumstances of the aggravated felony conviction to grant downward adjustment and
conviction was not so old (9 years) as to raise any issue]; U.S. v. Gonzalez, 112 F.3d 1325 (7th Cir.
1997) [age of aggravated felony conviction irrelevant]; U.S. v. Maul-Valverde, 10 F.3d 544 (8th Cir.
1993) [reversing judge’s departure from upward 16-level adjustment where person had committed
burglary and sentenced as aggravated felon]. But see U.S. v. Sanchez-Rodriguez, 161 F.3d 556, 559–
63 (9th Cir. 1998) [can consider nature and circumstances of the underlying aggravated felony in
departing downward]; U.S. v. Ortega-Mendoza, 981 F.Supp. 694 (D.D.C. 1997) [downward departure
appropriate because aggravated felony not serious, conditions of detention would be more severe as
deportable person and coercion and duress influenced his return]. Denial of a downward adjustment
may not be reviewable. U.S. v. Melendez-Torres, 420 F.3d 45, 50–52 (1st Cir. 2005) [denial of
downward adjustment because defendant was culturally assimilated was not reviewable]. Providing
false ID and name to INS does not warrant enhancement absent a showing that it hindered the
investigation. U.S. v. Solano-Godines, 120 F.3d 957, 963 (9th Cir. 1997).
7.g. Stipulation to Deportation as Basis for Downward Departure—Pre–Booker, certain circuits

prohibited downward departure simply because a defendant was willing to stipulate to deportation absent
a proffer of a nonfrivolous defense to deportation. U.S. v. Mignott, 184 F.3d 1288, 1290–91 (11th Cir.
1999) [citing 1st, 2nd, 3rd, and 9th circuit cases supporting the same view]. But see U.S. v. Hernandez-
Reyes, 114 F.3d 800, 802 (8th Cir. 1999) [permitting downward departure where parties filed joint motion
requesting it irrespective of defense to deportation]. Post-Booker, at least one court declined to depart
from the Sentencing Guidelines given the facts of the case. U.S. v. Hernandez-Montealegre, 445
F.Supp.2d 646, 653–58 (E.D. Va. 2006) [where defendant had only frivolous defenses to removal
downward departure was not appropriate]. But a judge may not base sentencing on unfounded beliefs
about the defendant’s immigration status or the judge’s views about the lack of immigration enforcement.
U.S. v. Velasquez Velasquez, 524 F.3d 1248, 1253 (11th Cir. 2008) [9-month sentence vacated]. But see
U.S. v. Tesillos, 965 F.Supp.2d 1037 (E.D. Wis. 2013) [defendant given 8-month sentence where
Guidelines were 24–30 months for counterfeiting immigration documents in violation of 18 USC §1546 as
court considered punitive aspect of removal and fact that defendant would remain in ICE custody].
7.h. Supervised Release—District courts sentencing noncitizens should generally not order supervised
release. Sentencing Guidelines Manual §5D1.1 comment N. 5 (Nov. 1, 2011); U.S. v. Solano-Rosales, 781
F.3d 345, 352-54 (6th Cir. 2015) [district court erred in providing for supervised release without
explanation and contrary to USSG §5D1.1(c) to a defendant likely to be deported]; U.S. v. Ramirez, 38
F.Supp.3d 818 (S.D. Tex. 2014). But can sentence defendant for violation of supervised release when he
illegally returns and commits additional crimes. U.S. v. Hernandez-Pineda, 849 F.3d 769, 771 (8th Cir.
2017) [24-month sentence for violation of supervised release].
7.i. Delay in Charging Defendant—Sentence reversed where the court failed to consider that the delay in
charging defendant, who was serving a state sentence, with illegal reentry should have been considered
when determining the downward departure of his sentence. U.S. v. Villegas-Miranda, 579 F.3d 798 (7th
Cir. 2009) [defendant claimed delay deprived him of the opportunity for a concurrent sentence]. Page 432
7.j. Fines as Part of a Sentence—Under 18 USC §3572 district courts have authority to determine whether
to impose a fine and the amount, time for payment, and method of payment of the fine. U.S. v. Pacheco-
Alvarado, 782 F.3d 213 (5th Cir. 2013) [despite PSR stating defendant who pleaded to reentry and
possession of a firearm had no funds, court ordered payment of fines out of funds earned in prison and if
he is released out of lawful employment].
8. Former Rule Against Judicial Deportation—As part of sentencing, courts cannot traditionally order the
defendant deported. U.S. v. Tinoso, 327 F.3d 864 (9th Cir. 2003) [court cannot order person deported as a
condition of supervised release under 18 USC §3583(d) but can order that person surrender to immigration
authorities for proceedings]; U.S. v. Quaye, 57 F.3d 447 (5th Cir. 1995) [same]; U.S. v. Kassar, 47 F.3d 562,
568–69 (2d Cir. 1995); U.S. v. Ramirez, 948 F.2d 66, 67–68 (1st Cir. 1991). IIRIRA abolished the right of the
federal court to order deportation as a condition of release. U.S. v. Mignott, 184 F.3d 1288, 1291–92 (11th Cir.
1999) [Congress eliminated the right of U.S. district court judges to enter orders of deportation; INA §239(a)
(3) makes hearing before IJ the exclusive procedure for deportation]. A court may therefore not enter a
sentence that precludes a person from raising defenses to removal. U.S. v. Maldonado-Ramirez, 216 F.3d
940, 944–45 (11th Cir. 2000). See also U.S. v. Velasquez Velasquez, 524 F.3d 1248, 1253 (11th Cir. 2008)
[reversing district court where it sought to impose a more severe sentence based upon unfounded
assumptions regarding the defendant’s immigration status and court’s personal views regarding immigration
policy]. IIRIRA §374(b), however, amended the statute to permit deportation as a condition of probation either
by stipulation of the parties or where the district judge or magistrate orders deportation after notice and a
hearing. At the hearing the AG must demonstrate deportability by clear and convincing evidence. 18 USC
§3563(b)(21).
9. Current Statutes Allowing Judicial Deportation—Notwithstanding prior law, Congress, under the
Immigration and Nationality Technical Corrections Act of 1994, established judicial deportation in the federal
system. A sentencing judge in federal court may now enter an order of deportation as part of the sentence
but only after certain procedural safeguards. See in this chapter “Judicial Deportation,” ¶ X.T.11 (p.688), infra.
9.a. Federal parole commission guidelines do not consider immigration status as a basis to alter or reduce
person’s sentence.
10. Extradition of Persons Who Are Not Citizens, Nationals, or LPRs—18 USC §3181(b) permits the
surrender of persons who are not citizens, nationals, or LPRs, even without an extradition treaty, if there is
evidence that the person had committed a COV against U.S. nationals and the charge is not political.
Removal proceedings may also be instituted as: “[e]xtradition proceedings are separate and apart from any
immigration proceeding [citations omitted].” Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA 1999). However,
the Convention Against Torture, 22 CFR §95.2, prevents extradition of a person who would face torture
unless there are diplomatic assurances to the contrary. But such assurances must be reviewed under due
process standards. Khouzam v. U.S. Att’y Gen., 549 F.3d 235, 259 (3d Cir. 2008) [staying removal and
releasing respondent from custody despite diplomatic assurances that Egyptian granted deferral of removal
would not be tortured, where the assurances were not subject to due process scrutiny]. The Geneva
Convention may not bar extradition. Noriega v. Pastrana, 564 F.3d 1290 (11th Cir. 2009) [Section 5 of the
Military Commissions Act precludes defendant from invoking the Geneva Convention as a source of rights
and the Convention itself does not bar extradition]. The REAL ID Act did not strip courts of jurisdiction to
review whether extradition is in compliance with the Convention Against Torture, but such review is limited to
whether the Secretary of State completed her statutory and regulatory obligations to find that the detainee
will not face torture. Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (en banc). Nor may a person,
in the view of at least one court, bring an action in a U.S. court to cease abducting him for purposes of
extradition. Kashamu v. Lynch, 142 F.Supp.3d 695 (N.D. Ill. 2015) [Neither the APA nor the Mansfield
Amendment provide a private cause of action to permit a person abroad to obtain a declaration that the U.S.
may not abduct him].
11. Prisoner Transfer Treaties—The President is permitted to negotiate bilateral prison transfer treaties
providing for incarceration in the country of the individual’s nationality for the duration of his prison term.
IIRIRA §330; 18 USC §4100-15. The U.S. currently has bilateral treaties with Bolivia, Canada, France, Hong
Kong, Marshall Islands, Mexico, Micronesia, Palau, Panama, Peru, Thailand, and Turkey. The U.S. is also a
signatory to two multilateral treaties that include many nations of the world: (1) Council of Europe Convention
on the Transfer of Sentenced Prisoners (Strasbourg Convention), Page 433 Mar. 21, 1983, T.I.A.S. No.
10824, 22 I.L.M. 530 (entered into force July 1, 1985); and The Inter-American Convention on Serving
Criminal Sentences Abroad (entered into force on June 24, 2001). The countries covered under the Inter-
American Convention are: Belize, Brazil, Canada, Chile, Costa Rica, Ecuador, El Salvador, Guatemala,
Mexico, Nicaragua, Panama, Paraguay, U.S. and Venezuela. The prisoner’s consent is not required. IIRIRA
§330(c). Treaty countries and information regarding the transfer process may be found at
travel.state.gov/law/legal/treaty/treaty_1989.html. The procedures for treaty transfers are found at the Bureau
of Prisons Program Statement 5140.39. There may not be a due process right to be transferred and the
decision to transfer may not be subject to review. Toor v. Holder, 717 F.Supp.2d 100 (D.D.C. 2010) [plaintiff’s
suit to require transfer to a Canadian prison was moot; even if not moot there is no private right of action, the
applicant cannot file a request until assigned to a prison under 28 CFR §527.44, the process is committed to
agency discretion, and APA notice and comment are not required in regard to the procedure because it is
interpretative]; Marshall v. Reno, 915 F.Supp. 426 (D.D.C. 1996). But see Wong v. Warden, FCI Raybrook,
999 F.Supp. 287 (N.D.N.Y. 1998) [due process right against refusal to transfer based on race, although
plaintiff did not prove case]. At least one court has found that when a USC is transferred to the U.S. under the
terms of a foreign sentence under the treaty, the district court does not have jurisdiction to alter the sentence
even if it is not in compliance with U.S. law. Bishop v. Reno, 210 F.3d 1295 (11th Cir. 2000).
12. Speedy Trial—The Speedy Trial Act, which requires criminal charges to be brought within the 30-day
period between arrest and indictment under 18 USC §3161(b), generally does not run from detention by
DHS. U.S. v. Noel, 231 F.3d 833 (11th Cir. 2000) [Speedy Trial Act does not run from detention by INS unless
the detention is merely a “ruse”]; U.S. v. Guevara-Umana, 531 F.3d 139 (2d Cir. 2008) [finding no ruse where
person detained both for deportation and prosecution]; U.S. v. Cepeda-Luna, 989 F.2d 353 (9th Cir. 1993)
[same]; U.S. v. Encarnacion, 56 F.Supp.2d 151 (D.P.R. 1999) [same]. Similarly, the requirement in Fed. R.
Crim. P. 5(a) that a person be taken before a magistrate within 48 hours or his case may be dismissed is not
applicable where the person is charged under §1326(a)(2) [found in the U.S.] because it is a status offense.
U.S. v. Tejada, 255 F.3d 1 (1st Cir. 2001); Noel, supra at 837. See also U.S. v. Perez-Perez, 337 F.3d 990,
997 (8th Cir. 2003) [civil deportation proceedings do not trigger the criminal rules of procedure including Rule
5(a)]. However, where there is collusion between INS and another agency to bring criminal charges, the
Speedy Trial Act, will apply. U.S. v. Tejada, 255 F.3d at 4; Noel, supra at 836; U.S. v. Vasquez-Escobar, 30
F.Supp.2d 1364, 1367–68 (M.D. Fla. 1998); U.S. v. Okuda, 675 F.Supp. 1552 (D. Haw. 1987) [same]; But see
U.S. v. Pasillas-Castanon, 525 F.3d 994, 997–99 (10th Cir. 2008) [ICE had lawful basis for holding and
pursuing removal]; U.S. v. Dyer, 325 F.3d 464, 468–70 (3d Cir. 2003) [no collusion between INS and U.S.
Attorney’s office].
IX. FINES
A. In General
The INA has numerous provisions relating to civil and criminal fines. INA §231(d), 8 USC §1221(d) [failure to
deliver manifest]; INA §241(e), 8 USC §1231(e) [failure to provide for removal]; INA §251(d), 8 USC §1281(d)
[alien crewmen]; INA §254(a), 8 USC §1284(a) [failure to control crew]; INA §255, 8 USC §1285 [employment of
certain crew]; INA §256, 8 USC §1286 [improper discharge of crew]; INA §257, 8 USC §1287 [assisting unlawful
entry of crew]; INA §271(a), 8 USC §1321(a) [prevent unauthorized entries]; INA §272(a), 8 USC §1322(a)
[bringing in certain aliens]; INA §273, 8 USC §1323 [unlawful bringing of aliens]; and INA §274C(d)(3), 8 USC
§1324c(d)(3) [document fraud].
Under the IMMACT90, the amount of fines substantially increased. IMMACT90 §542. Moreover, as a result of
the Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, PL 101-410 and the Omnibus
Consolidated Rescissions and Appropriations Act of 1996, PL 104-134, §31001(s)(1), DOJ revises penalties to
adjust for inflation. 8 CFR §280.53; 83 FR 13826, 13835-36 (Apr. 2, 2018); 81 FR 42491, 42502 (June 30, 2016)
[regarding DOJ penalties for INA §274C violations under 28 CFR §68.52(e)]; 76 FR 74625 (Dec. 1, 2011) [rule
establishing calculations for adjustment of fines based upon the CPI-U with 10% cap]. For example, the
penalties under INA §273, 8 USC §1323, against airlines and vessels for bringing unauthorized aliens into the
U.S., are in excess of the original $3,000 penalty per alien (now $5,543). The funds are to be used to enhance
enforcement including the construction of structures at the border to deter illegal entry and expediting
preparation of transcripts of EOIR hearings. IMMACT90 §542. Page 434
Under INA §241(c)(3), carriers once again have custodial and financial responsibility for stowaways, except
where they cannot be removed. Under prior law, airlines sued successfully to recover expenses for detaining
TWOVs seeking asylum, Aerolineas Argentinas v. U.S., 77 F.3d 1564 (Fed. Cir. 1996), and for an injunction. Air
Transp. Ass’n of Am. v. Reno, 80 F.3d 477 (D.C. Cir. 1996).
The procedures for the imposition and collection of fines are found at 8 CFR pt. 280 et seq. See in this part
Section B (p.434), infra. Procedures for fines under §274C are found at 8 CFR pts. 270, 1270.
Carriers may have fines reduced if they establish procedures approved by the Service for the proper screening
of passengers. 8 CFR §273.3, 63 FR 23643 (Apr. 30, 1998). A carrier may enter into a memorandum of
understanding with the Service to meet passenger screening standards, to train employees in documentary
requirements, and to pay fines and user fees promptly. 65 FR 46742–43 (July 30, 2000). In addition to fines, the
AG may suspend the entry of aliens transported to the U.S. aboard a commercial airline that does not comply
with regulations regarding fraudulent documents used by passengers. INA §212(f).
B. Procedures for All Fines Except INA §274
1. Initiation—Proceedings initiated by the Associate Commissioner for Examinations, the Director for the
National Fines Office, or the District Director by the issuance of Form I-79, Notice of Intent to Fine (NIF). The
initiation of fine proceeding does not preclude DHS from instituting its own civil suit pursuant to INA §280, 8
USC §1330. 8 CFR §§280.1, 1280.1. Upon service of an NIF, DHS under certain circumstances may prohibit
the aircraft or vessel from departing the U.S. without security. 8 CFR §§280.2, 280.3, 1280.2, 1280.3. The
NIF must be personally served, 8 CFR §§280.11, 1280.11, and an answer must be filed within 30 days
following service. 8 CFR §§280.12, 1280.12. The 30-day period may be extended another 30 days for good
cause shown. Id. An answer should contain a written defense (filed in duplicate) under oath setting forth the
reasons why “a fine should not be imposed, or if imposed, why it should be mitigated or remitted.” Id. In
addition, a party answering may request a personal appearance before an immigration officer (who is not an
IJ or ALJ). See 81 FR 42987-43006 (July 1, 2016) for updated fines.
2. Mitigation or Remission of Fine—A party may file an application for mitigation or remission of a fine within
30 days of receipt of the NIF. Remission is complete forgiveness of the entire penalty, while mitigation is the
imposition of a reduced penalty. An application for mitigation or remission shall be filed in duplicate under
oath and “shall include information, supported by documentary evidence, as to the basis of the claim to
mitigation or remission.” 8 CFR §§280.51(b), 1280.51(b). Mitigation can only be filed in those cases where
mitigation is permitted by statute. For example, INA §273 provides for both remission [INA §273(c)] and
mitigation [INA §273(e)]. Regulations that a carrier must follow if it seeks to reduce, obtain a refund, or waive
a fine can be found at 8 CFR pt. 273. However, a carrier is not precluded from seeking remission or
mitigation under 8 CFR §§280.51, 1280.51.
3. Mitigation—A fine imposed under INA §273 may be mitigated where (i) the carrier demonstrates that it had
screened all passengers in accordance with procedures under 8 CFR pt. 273, or (ii) circumstances exist that
the AG determines would justify such reduction, refund or waiver. INA §273(e). The carrier may sign a Fines
Mitigation Memorandum of Understanding (MOU) with the CBP. 8 CFR §273.6. If the Fines Mitigation MOU is
signed, the carrier can obtain an “automatic reduction, refund, or waiver of a fine without the filing of an
application” 75 FR 7616, 7617 (Feb. 22, 2010) and therefore will not be required to “apply for reduction,
refund, or waiver of fines in accordance with the procedures outlined in 8 CFR §280.12 and 8 CFR §280.51.”
8 CFR §273.6(b). The Fines Mitigation MOU was revised to set forth revised “performance levels” and
additional requirements including the carrier’s obligation to conduct additional document checks at the
boarding gates and to screen all passengers regardless of who was the issuing agent for the ticket. 75 FR
7616, 7618 (Feb. 22, 2010). The MOU also requires a carrier to make every effort to notify other carriers at
the port of embarkation if it has refused to board a passenger due to suspected fraud or lack of
documentation.
4. Defenses—Each statute involves different defenses. For example, INA §273(c) permits remission
(forgiveness in full) “where it appears that prior to the alien’s departure from the last port outside the U.S., the
carrier did not know, and could not have ascertained by the exercise of reasonable diligence, that the
individual transported was an alien and that a visa was required.” See Matter of Varig Brazilian Airlines, Flight
No. 830, 21 I&N Dec. 744 (BIA 1997) Page 435 [reasonable diligence standard applies both to whether
person is an alien and needs a visa and to adequacy of carrier’s inspection procedures. BIA decision remains
unaffected by the passage of INA §273(e) and BIA applies reasonable person standard]; Matter of Plane N-
6104-C, 6 I&N Dec. 819 (BIA 1955); Matter of SS Florida, 3 I&N Dec. 111 (AG 1954). Traditionally, the
burden of proof is on the Service and the record must contain affidavits from witnesses and not simply
statements from agents who did not witness the events. M/V Saru Meru, 20 I&N Dec. 592 (BIA 1992) [lack of
affidavits from crew members or other stowaways was fatal]. However, lack of proper knowledge of U.S.
immigration law by overseas employees is generally not a defense. Matter of M/V Guadalupe, 13 I&N Dec.
67 (BIA 1968). See also Matter of Scandinavian Airlines Flight #SK 911, 20 I&N Dec. 306 (BIA 1991) [airline
is an insurer even where person had passport and visa, although airline may seek remission]. In addition, it is
not a defense to a §273 fine proceeding that the alien was subsequently admitted, even if a returning LPR,
where he did not have proper documentation at the time of his arrival, Matter of Eastern Airlines, Inc. Flight
No. 798, 20 I&N Dec. 57 (BIA 1989); Matter of Air India Flight No. 101, 21 I&N Dec. 890 (BIA 1997) [liability
where the regulation did not provide for blanket waiver of visa when person granted waiver for
inadmissibility]. And if a person is paroled into the U.S. when not in possession of valid passport or visa when
required to do so, the airline is subject to a fine. Matter of United Airlines Flight UA802, 22 I&N Dec. 777 (BIA
1999), aff’d, United Airlines, Inc. v. Brien, 588 F.3d 158, 169–73 (2d Cir. 2009)[found use of parole authority a
reasonable choice among various enforcement options]. Airlines will also be fined if TWOV absconds. 8 USC
§1321. Nor is laches a defense to fine proceedings, Matter of United Airlines Flight UA802, 22 I&N Dec. 777,
782 (BIA 1999). But both the 1996 INS amendments to 8 CFR §212.1(g) and the 1999 DOS amendment to
22 CFR §41.2(j) placing liability on the carrier even if a waiver is granted were struck down as violative of the
statute and the APA. United Airlines, Inc. v. Brien, 588 F.3d 158, 177–80 (2d Cir. 2009). However, DOS ( 22
CFR §41.2(i)) and DHS ( 8 CFR §212.1(g)) have proposed rules jointly to allow them to fine a carrier even if
they grant a waiver of visa and passport requirements where there is an “unforeseen emergency,” thus
reversing the Brien decision. 81 FR 12032-38, 12050-51 (Mar. 8, 2016). But if the regulations by their
express terms do not require a visa, a carrier may not be fined. Matter of Plane CUT-604, 7 I&N Dec. 701
(BIA 1957) [no carrier liability where regulation provides in express terms that a visa is not required when a
waiver is granted for returning LPR]; Matter of Plane CCA CUT 532, 6 I&N Dec. 262 (BIA 1954) [same]. A
carrier may also obtain a remand of proceedings where the INS decision is cursory and inadequate for
review. Matter of Air India Flight No. 101, 21 I&N Dec. 890 (BIA 1997) [case remanded for development of an
adequate appellate record].
5. Appeal—An adverse order by the District Director, Associate Commissioner for Examinations or the Director
of the National Fines Office may be appealed to the BIA within 15 days after the mailing of the notification of
the decision, with an additional 3 days if received by mail.
6. Judicial Review—If a party is not satisfied with the decision, he may bring an action under the APA in district
court challenging the decision.
C. Civil Penalties for Document Fraud
INA §274C, 8 USC §1324c; 8 CFR §§270, 1270 et seq.; 57 FR 33862 (July 31, 1992), 64 FR 7066 (Feb. 12,
1999).
1. Generally—It is unlawful for any person or entity knowingly:
to forge, counterfeit, alter or falsely make any document for the purpose of satisfying a requirement of,
or to obtain a benefit under, the INA;
to use, attempt to use, provide, attempt to provide, possess, obtain, accept, or receive any forged,
counterfeit, altered, or falsely made document in order to satisfy any requirement of the INA or to
obtain a benefit under the INA. This includes, in the view of one court, the presentation of false
documents to an employer for an I-9. Villegas-Valenzuela v. INS, 103 F.3d 805, 809–11 (9th Cir. 1996);
to use someone else’s lawfully issued document for the purpose of satisfying a requirement of the Act,
Remileh v. INS, 101 F.3d 66 (8th Cir. 1996) [use of cousin’s birth certificate to gain employment];
to accept, receive, or use someone else’s lawfully issued document for the purpose of complying with
I-9 requirements or obtaining a benefit under the INA; Page 436
to prepare, file, or assist another in preparing or filing any application for benefits under the Act, or any
document in connection with such application or document with knowledge or a reckless disregard of
the fact that such application or document was falsely made or, in whole or in part, does not relate to
the person on whose behalf it was or is being submitted. The Service has taken the view that the term
“prepare” should be construed broadly to include actually filling out the form, completing other
documents in support of the form (with knowledge of falsity and that the document will be attached to
the form), or instructing another about filling it out. Memo, Virtue, Acting Exec. Assoc. Comm., HQ IRT
50/5.12, 96 Act. 052 (Sept. 3, 1997), AILA Doc. No. 97090391.
to present to a common carrier a document to board and then fail to present it to an immigration officer
on arrival. The legislative history of IIRIRA §212 provides that this section, as well as the section
regarding preparing or assisting in the preparation of false documents, apply only to offenses
committed on or after Sept. 30, 1996.
2. “Falsely Made”—The statute defines “falsely made” to include reckless disregard or having no basis in law
or fact. INA §274C(f), 8 USC §1324c(f). This definition applies to preparation of applications before, on or
after Sept. 30, 1996. IIRIRA §212(f). However, its retroactive effect is limited to the “preparation of
applications” and does not apply to possession or use of a falsely made Social Security card prior to Sept.
30, 1996. U.S. v. Davila, 7 OCAHO no. 936 (June 16, 1997).
3. Form I-9—Prior to 1996, the attestation to false information on an I-9 did not constitute falsely making a
document under the statute. U.S. v. Remileh, 5 OCAHO no. 724 (Feb. 7, 1995) [distinguishing falsely making
a document from providing false information]. But in 1996 the statute was amended to encompass this. See
INA §274C(f) [defining “falsely made”]. The presentation of false documents (e.g., green card and Social
Security card) to employer filling out I-9 constitutes a violation under INA §274C. U.S. v. Morales-Vargas, 5
OCAHO no. 732 (Mar. 13, 1995).
4. Investigation
4.a. The statute gives DHS and ALJs power to investigate and the power to subpoena. However, the AG
must go to district court to enforce the subpoenas. INA §274(d)(1), 8 USC §1324(d)(1).
4.b. Procedures for investigation and institution of proceedings closely parallel employer sanctions. 8 CFR
§§270, 1270.
(1) Any person may initiate complaint and a complaint may be initiated on the basis of hearsay (e.g.,
Form I-213), 57 FR 33862 (July 31, 1993);
(2) DHS may conduct investigation on its own initiation without prior complaint;
(3) DHS may issue subpoena pursuant to INA §274C(d)(1)(C), 8 CFR §§235, 287.4, 1235, 1287.4 in
accordance with procedures under §287.4 for the attendance of witnesses and the production of
documents;
(4) If it is determined that there is a violation, DHS may issue and serve a notice of intent to fine (NIF). 8
CFR §§270.2(e), 1270.2(e). The notice is personally served pursuant to 8 CFR §103.8(a)(2). The
respondent has 60 days from service of the NIF to submit a written request for a hearing. 8 CFR
§270.2(f). Legacy INS was enjoined from using the original NIF because it failed to properly advise a
respondent of the proceeding and the consequences of the proceeding regarding deportation. Walters
v. Reno, 145 F.3d 1032 (9th Cir. 1998). Pursuant to Walters, legacy INS vacated the 274C final orders
that were issued against more than 5,000 class members who failed to request a hearing after
receiving the defective notice forms. Plaintiffs’ counsel were provided with a database listing the
vacated cases, and attorneys may confirm that an individual’s 274C final order was vacated by
contacting the National Immigration Law Center in Los Angeles, joaquin@nilc.org.
(5) If DHS moves forward on the case they will issue a complaint. 28 CFR §68.5. Service of the
complaint on the respondent’s attorney is sufficient even where respondent’s notice has been returned
as undeliverable. U.S. v. Galvez-Melgarejo, 4 OCAHO no. 684 (Sept. 9, 1994). Respondent has 30
days to file an answer. 28 CFR §68.9(a). If the respondent fails to answer, a default may be entered.
Respondent’s answer may include affirmative defenses such as selective prosecution, res judicata and
collateral estoppel. 28 CFR §68.9(c)(2). Page 437
(6) DHS should not institute INA §274C proceedings where there is an I-485 on file and an I-601 fraud
waiver unless the applications are denied. Memo, Puleo, Acting Exec. Assoc. Comm. Operations (HQ
274C-C) (Mar. 25, 1993), reprinted in 12 AILA Monthly Mailing 922–23 (Dec. 1993); Memo, Rees,
Gen. Counsel, INS (May 18, 1993). However, the BIA has held that INA §212(i) cannot waive
inadmissibility under §212(a)(6)(F) arising from a final order under INA §274C. Matter of Delia Lazarte-
Valverde, 21 I&N Dec. 214 (BIA 1996) [distinguishing INS memo providing that a waiver may be filed
as an exercise of prosecutorial discretion not a statement of law].
5. Hearing
5.a. The person or entity subject to a penalty is entitled to a hearing upon request with at least 30 days’
notice. INA §274C(d)(2), 8 USC §1324c(d)(2). The hearing procedure is the same as the procedure for
employer sanctions and unfair immigration employment practices under 28 CFR §68. If no hearing is
requested, the AG’s order is final and not appealable.
5.b. If the NIF is issued, respondent must request hearing within 60 days. Request is deemed filed when
received by DHS. 8 CFR §§270.2(f), 1270.2(f). In requesting a hearing, the respondent may, but is not
required to, respond to each allegation listed in the NIF. Failure to timely file a request for a hearing will
result in entry of a final order. 8 CFR §§270.2(g), 1270.2(g).
5.c. The NIF as well as any complaint issued are governed by broad notice pleading and the NIF or
complaint will not be dismissed when the respondent is put on sufficient notice of the charges. U.S. v.
Villatoro-Guzman, 3 OCAHO no. 540 (July 9, 1993).
5.d. The hearing is governed by ALJ procedures under 28 CFR §68.1, utilizing many aspects of the Federal
Rules of Civil Procedure (see Employer Sanctions discussion in Chapter 12, Part VI (p.2081), infra); 57
FR 57669–73 (Dec. 7, 1992). The hearing shall be held before an ALJ at the nearest practicable place to
where the person or entity resides or where the alleged violation occurred. The hearing shall be
conducted in accordance with the APA, 5 USC §554, and the ALJ shall apply a preponderance of the
evidence test. ALJ shall make findings of fact and issue an order served on the person or entity. The
respondent can assert the Fifth Amendment. U.S. v. Davila, 6 OCAHO no. 903 (Nov. 21, 1996).
5.e. Evidence at hearings governed generally by APA, 5 USC §556(d); Velasquez-Tabir v. INS, 127 F.3d 456
(5th Cir. 1997) [will not exclude evidence even if it was obtained in violation of the NLRA]. Discovery is
permitted including use of depositions. 28 CFR §§68.18, 68.22.
5.f. Summary decision (like summary judgment) may be sought. 28 CFR §68.38(c). U.S. v. Ortiz, 6 OCAHO
no. 889 (Aug. 30, 1996) [reviewing law on summary decisions and concluding government had not
established the knowledge requirement even though it could be inferred when a party avoids or ignores
evidence]; U.S. v. Kumar, 6 OCAHO no. 833 (Feb. 6, 1996) [ALJ used I-213 to grant summary decision to
government]; Villegas-Valenzuela v. INS, 103 F.3d 805, 811–14 (9th Cir. 1996) [upholding summary
decision based on affidavit where respondent was not given opportunity to conduct discovery or cross
examine deponent].
6. Penalties—INA §274C(d)(3), 8 USC §1324c(d)(3), 8 CFR §§270.3, 1270.3; 83 FR 13826, 13829 (Apr. 2,
2018) [upgrading fines to comply with cost of living adjustments and the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015, PL 114-74, sect. 701 (Nov. 2, 2015) which further amended the
Federal Civil Penalties Inflation Adjustment Act of 1990]. See also 28 CFR §68.52(e).
6.a. The ALJ’s order must contain a “cease and desist” provision if a violation is found.
6.b. In addition, a civil penalty may be imposed in the amount of:
(1) Not less than $461 and not more than $3,695 for each document used, accepted, or created and
each instance of use, acceptance, or creation under INA §§274C(a)(1)–(4). For violations of
§§274C(a)(5)–(6), not less than $390 or more than $3,116.
(2) If second or more offense, fines are $3,695 to $9,239 for each violation of §§274C(a)(1)–(4). For
second offense of §§274C(a)(5)–(6), not more than $3,116 or less than $7,791. 83 FR 13826, 13829
(Apr. 2, 2018); 83 FR 3944, 3947 (Jan. 28, 2018). Page 438
6.c. In applying the penalties, in the case of a person or entity “composed of distinct, physically separate
subdivisions, each of which provides separately for the hiring, recruiting or referring for a fee for
employment (without reference to the practices of, and not under the common control of or common
contract with, another subdivision), each subdivision shall be considered a separate person or entity.” 8
CFR §§270.3(b)(2), 1270.3(b)(2).
6.d. The AG may waive penalties for a person who does not present documents at the border if he or she is
granted asylum or withholding.
6.e. The ALJ may consider mitigating and aggravating factors when imposing a civil penalty in a document
fraud case. U.S. v. Dominguez, 8 OCAHO no. 1000 (1998).
7. Defenses
7.a. Double Jeopardy—U.S. v. Dominguez, 6 OCAHO no. 876 (July 1, 1996) [striking double jeopardy
defense because a plea to conspiracy does not bar a civil proceeding on the substantive offense and
respondent waived double jeopardy in his plea]; Noriega-Perez v. U.S., 179 F.3d 1166, 1171 (9th Cir.
1999) [no double jeopardy where criminal conviction and civil action for different offenses]. The Service
has taken the view, based in Hudson v. U.S., 522 U.S. 93 (1997), that double jeopardy does not attach to
civil fine proceedings. Memo, Virtue, G.C. (HQCOU 90/10.6-P: 90/5/5-P), reprinted in 76 No. 32
Interpreter Releases 1259, 1279–83 (Aug. 23, 1999).
7.b. Did Not Waive Right to Hearing—Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) [notice and waiver
forms used by INS for respondents to waive their right to an ALJ hearing did not properly inform
respondents of their rights; court vacated INA §274C final orders and required new notice form]. Under
the Walters v. Reno class action settlement, persons with final orders of deportation arising from INA
§274C had until Aug. 21, 2003 to file a written request to reopen their deportation or removal cases. See
66 FR 48480–82 (Sept. 20, 2001). In addition, plaintiffs’ counsel were provided with a database listing the
vacated cases, and attorneys may confirm that an individual’s 274C final order was vacated by contacting
the National Immigration Law center in Los Angeles, joaquin@nilc.org.
7.c. Lack of Knowledge—Lack of knowledge of falsity of documents.
7.d. Separation of Powers—Noriega-Perez v. U.S., 179 F.3d 1166, 1171–78 (9th Cir. 1999) [no violation of
separation of powers to allow ALJ instead of Article III judge to impose fine].
7.e. Affirmative Defenses—Affirmative defenses must be supported by a statement of facts. 28 CFR

§68.8(c)(2).
8. Administrative and Judicial Review
8.a. Interlocutory Appeal—ALJ may, sua sponte or on motion of a party within 10 days of an order, seek an
interlocutory appeal if there is “an important question of law” for which there is a substantial difference of
opinion and where the appeal will result in the ultimate termination of the proceedings or where
subsequent review will be inadequate. 28 CFR §68.53(a)(2).
8.b. ALJ’s decision is final 60 days after the date it is issued unless the CAHO modifies, vacates, or
remands the order or the order is referred to the AG. 28 CFR §68.52(g). A party may seek review of the
ALJ’s order with CAHO within 10 days of the order. 28 CFR §68.54(a)(1).
8.c. A person or entity adversely affected by a final order has 45 days after the date the order is issued to
seek review in the U.S. court of appeals. 8 USC §1324c(d)(5). There is some ambiguity as to whether this
45-day period begins to run from the ALJ’s order or 45 days from the time the order is final. Velasquez-
Tabir v. INS, 127 F.3d 456, 458 n.5 (5th Cir. 1997).
8.d. A party may seek to enforce the ALJ/AG’s decision in U.S. district court. The validity and
appropriateness of the ALJ/AG’s order is not subject to review in such a proceeding.
D. Civil Penalty for Failure to Depart—INA §274D. Any alien who willfully fails or refuses to depart the U.S. after
a final order of removal is subject to pay a civil penalty of not more than $779/day. Page 439
X. REMOVAL PROCEDURES
A. Effect of Deportation—Deportation has historically been viewed as having harsh consequences. Padilla v.
Kentucky, 559 U.S. 356, 373 (2010) [“the equivalent of banishment or exile”]; INS v. St. Cyr, 533 U.S. 289, 323
(2001) [“Preserving the client’s right to remain in the United States may be more important to the client than any
potential jail sentence. “]; Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) [“is a drastic measure and at times the
equivalent of banishment [or] exile…”]; Jordan v. De George, 341 U.S. 223 (1951) [“a sentence to life in exile …
a penalty”]; Bridges v. Wixon, 326 U.S. 135, 164 (1945) [“The impact of deportation … is often as great if not
greater than the imposition of a criminal sentence. A deported alien may lose his family, his friends, and his
livelihood forever. Return to his native land may result in poverty, persecution and even death”]; Ng Fung Ho v.
White, 259 U.S. 276 (1922) [“loss of both property and life or of all that makes life worth living”]; Lehmann v.
U.S., 353 U.S. 685, 691 (1957) (Black, J., concurring) [“punishment of the most drastic kind”]; Shuti v. Lynch,
828 F.3d 440 (6th Cir. 2016) [finding void-for-vagueness challenge does apply in immigration context given the
draconian consequences of removal as akin to banishment and upholding challenge to INA §101(a)(43)(F)
because of its reliance on §16(b)]; Chrzanoski v. Ashcroft, 327 F.3d 188, 197 (2d Cir. 2003) [quoting Fong Haw
Tan]; Padilla-Agustin v. INS, 21 F.3d 970, 978 (9th Cir. 1994) [when an alien faces deportation the stakes are
high; he may face deprivation, torture or death if returned to his homeland]; Gonzalez v. INS, 996 F.2d 804, 811
n.7 (6th Cir. 1993) [a drastic measure and at times the equivalent of banishment or exile]; Yepes-Prado v. INS,
10 F.3d 1363, 1369 n.11 (9th Cir. 1993) [quoting Gonzalez]; Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926) [“exile, a
dreadful punishment”]; Matter of Hou, 20 I&N Dec. 513, 520 (BIA 1992) [potentially drastic consequences of
deportation].
B. Due Process
1. Generally—”It is well established that the Fifth Amendment entitles aliens to due process of law in
deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). “[T]he Due Process Clause applies to all
‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001) [indefinite detention is
unconstitutional for post-removal cases beyond 6 months of incarceration because “Freedom from
imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of
the liberty that Clause protects”]; Accardi v. Shaughnessy, 347 U.S. 260 (1954); Bridges v. Wixon, 326 U.S.
135 (1945); Plyler v. Doe, 457 U.S. 202 (1982); Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).
2. Cases Finding Due Process Violations
First Circuit—Hossain v. Ashcroft, 381 F.3d 29 (1st Cir. 2004) [where transcript and briefing schedule mailed
to incorrect address and brief never filed, BIA’s denial of motion to reconsider reversed].
Second Circuit—Pierre v. Holder, 588 F.3d 767, 776–77 (2d Cir. 2009) [BIA’s sua sponte reliance on the
“attempt” section of the aggravated felony provisions, INA §101(a)(43)(U) to find petitioner deportable
violated due process because petitioner was never charged under “U” and its use was expressly disavowed
in front of the IJ]; Zheng v. Mukasey, 552 F.3d 277, 285–86 (2d Cir. 2009) [IJ completely disregarded
uncontested NTA that indicated date of entry in considering whether asylum application was filed within one
year of that date]; Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007) [following the 9th and 10th Circuits, failure
to give an asylum applicant the opportunity to respond to administrative findings of changed conditions
before making those findings is a violation of due process]; 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”];
Ragbir v. Sessions, No. 18-cv-236 (KBF), 2018 WL 623557 (S.D.N.Y. Jan. 29, 2018) [due process right to
organize affairs before being physically removed after living in U.S. for many years]; Abdi v. Duke, 280
F.Supp.3d 373, 385-87 (W.D.N.Y. 2017) [preliminary injunction issued to putative class to enforce ICE
Directive No. 11002.1 regarding parole under Accardi doctrine]; Caplash v. Johnson, 230 F.Supp.3d 128
(W.D.N.Y. 2017) [a constitutionally protected property interest attaches to 8 USC §1154(b) and by extension
the adjudication of an I-130 petition; procedural due process was violated where plaintiff was not afforded
reasonable notice and the petition was denied for failure to respond to an RFE]. Page 440
Third Circuit—Serrano-Alberto v. U.S. Att’y Gen., 859 F.3d 208 (3d Cir. 2017) [where IJ was confrontational,
dismissive and hostile to respondent, including interrupting and belittling his testimony, cutting off his answers
and nitpicking immaterial inconsistencies, she violated respondent’s due process rights]; Rodriguez v. U.S.
Att’y Gen., 844 F.3d 392, 398-400 (3d Cir. 2016) [where respondent’s conviction was vacated and he
repleaded to what might arguably be a conviction, the court reversed the deportation order because ICE
violated his due process rights when it failed to file new charges giving him notice]; Oliva-Ramos v. U.S. Att’y
Gen., 694 F.3d 259, 272-74 (3d Cir. 2012) [violation of due process not to grant the issuance of subpoenas to
prove need to suppress evidence due to egregious and widespread Fourth Amendment violations];
Abulashvili v. U.S. Att’y Gen., 663 F.3d 197, 207-09 (3d Cir. 2011) [asylum applicant’s due process rights
were violated where IJ stepped into the role of government attorney to cross-examine applicant]; Khouzam v.
U.S. Att’y Gen., 549 F.3d 235, 255–59 (3d Cir. 2008) [DHS sought to remove respondent after terminating
deferral of removal under CAT without providing a neutral and independent decisionmaker, an opportunity to
make arguments, and factfinding on a record disclosed to him]; Cham v. U.S. Att’y Gen., 445 F.3d 683 (3d
Cir. 2006) [Gambian asylum applicant denied a fair hearing where IJ assumed application was invalid,
nitpicked the application and testimony for inconsistencies and contradictions, prevented applicant from
presenting evidence/witnesses, and engaged in abusive conduct including preventing the applicant from
testifying by continually interrupting him]; Muhanna v. Gonzales, 399 F.3d 582, 588–89 (3d Cir. 2005) [finding
of frivolousness by IJ in asylum hearing that was based solely on a credibility determination and not on the
application as a whole and where respondent was not permitted to present testimony]; Ezeagwuna v.
Ashcroft, 325 F.3d 396, 405–08 (3d Cir. 2003) [reliance on double and triple hearsay letter of DOS Director of
Office of Country Reports and Asylum Affairs to undermine credibility of documentary evidence in
asylum/withholding claim].
Fourth Circuit—D.B., as Next Friend of R.M.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016) [parent whose child
was taken by ORR lacked a substantive due process claim or statutory claim for the release of her son, but
she does have a procedural due process right under Mathews to obtain a hearing for his release to her];
Beltran v. Cardall, 222 F.Supp.3d 476, 481-89 (E.D. Va. 2016) [finding on remand that procedural due
process requires the government has the burden to initiate proceedings if it seeks to withhold a child from a
parent and ORR owes the parent “some form of adversarial process and could not simply require the [parent]
to change the agency’s mind”].U.S. v. Lopez-Collazo, 824 F.3d 453, 460-62 (4th Cir. 2016) [respondent in
INA §238(b) expedited removal proceeding who did not speak or understand English was deprived of due
process when he was issued an I-851 Notice of Intent to Issue Final Administrative Removal Order solely in
English, although no prejudice was demonstrated]; Anim v. Mukasey, 535 F.3d 243, 256–62 (4th Cir. 2008)
[IJ’s admission and reliance on DOS letter of an investigative report on the authenticity of asylum applicant’s
documents]; U.S. v. Miranda-Rivera, 206 F.Supp.3d 1066, 1070-71 (D. Md. 2016) [due process violated
where waiver not intelligently made because applicant was never informed of his right to seek asylum or
withholding pursuant to 8 CFR §1240.11(a)(2), (c)(1)].
Fifth Circuit—Chike v. INS, 948 F.2d 961 (5th Cir. 1991) [due process requires notice of BIA briefing
schedule].
Sixth Circuit—Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016) [finding void-for-vagueness challenge does apply
in immigration context given the draconian consequences of removal and upholding challenge to INA §101(a)
(43)(F) because of its reliance on §16(b) post Johnson]; Alexandrov v. Gonzales, 442 F.3d 395, 404–07 (6th
Cir. 2006) [in Bulgarian asylum claim, IJ relied on 2 highly unreliable hearsay memoranda from the U.S.
embassy in Sofia to prove respondent’s documents were fraudulent and asylum claim was frivolous]; Ahmed
v. Gonzales, 398 F.3d 722 (6th Cir. 2005) [where IJ misunderstood testimony and made improper rulings as
to credibility on asylum claim, IJ’s order reversed, and court ordered that a new judge hear the matter];
Castellano-Chacon v. INS, 341 F.3d 533, 552–53 (6th Cir. 2003) [IJ erred in not allowing respondent’s
counsel to make opening and closing arguments but found the error to be harmless].
Seventh Circuit—Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016) [beneficiary had not Fifth Amendment
due process right to receive notice where I-140 was revoked]; Karroumeh v. Lynch, 820 F.3d 890 (7th Cir.
2016) [in removal proceeding based upon a sham marriage the respondent was deprived of due process
when the government failed to make reasonable efforts to produce his former wife but utilized her
inconsistent and contradictory statement, relied upon by the IJ, without Page 441 an opportunity to cross-
examine her]; Bayo v. Napolitano, 593 F.3d 495, 502–04 (7th Cir. 2010) (en banc) [VWP entrant in removal
proceedings has constitutional right to determination whether waiver was knowingly and voluntarily signed
abroad]; Bosede v. Mukasey, 512 F.3d 946, 950–51 (7th Cir. 2008) [IJ failed to consider evidence, stated
petitioner might not have problems because he could bribe his way out of jail, and applied “whatever
rationale he could muster to justify a predetermined outcome”]; Floroiu v. Gonzales, 481 F.3d 970, 973–76
(7th Cir. 2007) [IJ characterized asylum applicants as “religious zealots” who were “offensive to the majority,”
evidencing sufficient bias]; Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538–40 (7th Cir. 2005) [IJ frequently
interrupted respondent’s counsel, assumed the role of counsel for the government, and precluded 2 experts
from testifying in Guatemalan asylum claim]; Kerciku v. INS, 314 F.3d 913 (7th Cir. 2003) [IJ foreclosed
virtually all testimony in asylum hearing after he determined from brief questioning that respondent was not
credible]; Singh v. Reno, 182 F.3d 504 (7th Cir. 1999) [INS improperly delayed deportation hearing causing
persons with criminal background to be denied any possibility of relief]; Xiong v. INS, 173 F.3d 601, 607–08
(7th Cir. 1999) [deportability sustained in federal appeal based on a different aggravated felony than the one
charged and decided upon by IJ]; Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) [deprivation of meaningful
opportunity to be heard at deportation proceeding where INS refused to reopen in absentia order]; Podio v.
INS, 153 F.3d 506 (7th Cir. 1998) [respondent denied the right to have siblings testify to corroborate
persecution and IJ stifled counsel’s ability to allow client to testify by taking over and shortcutting the
questioning]; Kossov v. INS, 132 F.3d 405, 408 (7th Cir. 1998) [persons ordered deported to Russia but
evidence taken on fear of return to Latvia]; Ademi v. INS, 31 F.3d 517, 521 n.8 (7th Cir. 1994) [discouraging
the right to appeal].
Eighth Circuit—Omondi v. Holder, 674 F.3d 793, 800-01 (8th Cir. 2012) [where BIA failed to address issue of
transcript deficiency case remanded in light of due process concerns]; Banat v. Holder, 557 F.3d 886 (8th Cir.
2009) [IJ relied on DOS letter to determine PFLP document was fraudulent despite lack of information about
the people who conducted the investigation and their expertise]; Tun v. Gonzales, 485 F.3d 1014 (8th Cir.
2007) [experts’ testimony was excluded and interpretation was seriously flawed]; Al Khouri v. Ashcroft, 362
F.3d 461, 464–67 (8th Cir. 2004) [IJ made adverse credibility finding denying pro se respondent’s asylum
after refusing to allow him the opportunity to develop the record and giving him only 10 minutes to review his
200 page application].
Ninth Circuit—U.S. v. Valdivia-Flores, 876 F.3d 1201, 1205-06 (9th Cir. 2017) [in INA §238(b) proceeding
defendant did not knowingly and intelligently waive his right to appeal despite signing waiver form because
the form did not explicitly inform him that he could refute the legal conclusion that he was an aggravated
felon]; Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) [violation of due process not to require DHS/IJs
to consider financial conditions and alternatives to detention when making bond determinations]; U.S. v.
Raya-Vaca, 771 F.3d 1195, 1202-06 (9th Cir. 2014) [defendant’s expedited removal proceeding was a
violation of due process because he was apprehended after entry (within 100 miles of the border) and was
never give notice and an opportunity to respond to the charges as provided in 8 CFR §235.3(b)(2)(i)]; Lopez-
Valenzuela v. County of Maricopa, 770 F.3d 772 (9th Cir. 2014) (en banc) [Arizona’s Proposition 100 denying
bail for serious felony offenses if the defendant has entered or remained in the U.S. illegally and if the proof is
evident or the presumption great as to the charge violates substantive due process]; Brown v. Holder, 763
F.3d 1141, 1148-52 (9th Cir. 2014) [court rejected estoppel claim but held that Pangilinan does not preclude
constitutional claim to citizenship if government “arbitrarily and intentionally obstructed” derivative claim];
Coronado v. Holder, 759 F.3d 977, 986-87 (9th Cir. 2014) [BIA’s failure to address ineffective assistance of
counsel and judicial prejudice was a violation of due process]; Bondarenko v. Holder, 733 F.3d 899 (9th Cir.
2013) [IJ violated due process by not granting continuance to allow respondent in asylum case to investigate
government’s adverse forensic report that it had for 8 months prior to confronting respondent]; U.S. v.
Gomez, 757 F.3d 885, 897-98 (9th Cir. 2014) [stipulated removal procedures at Eloy violated unrepresented
applicant’s due process rights]; Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (en banc) [an applicant for
asylum/withholding/CAT has a due process right to present testimony in support of his claim and IJ violated
right when he refused to permit the applicant to put forward his full claim on direct testimony on the grounds
that information was already covered in the asylum application]; Ching v. Mayorkas, 725 F.3d 1149 (9th Cir.
2013) [beneficiary of denied I-130 petition because of claimed former marriage fraud who is placed in
removal proceedings, has a procedural due process right under Mathews v. Eldridge, to confront and cross-
examine ex-husband or USCIS agent who drafted affidavit alleging fraudulent marriage]; Page 442 Vilchez v.
Holder, 682 F.3d 1195, 1199-1200 (9th Cir. 2012) [video-conference hearings may in certain circumstances
violate due process but finding no violation in this case]; Ibrahim v. DHS, 669 F.3d 983 (9th Cir. 2014) [Ph.D.
student previously in U.S. for 4 years but barred from reentry because she was placed on no-fly list and had
visa revoked established “significant voluntary connection” with the U.S. to assert First and Fifth Amendment
claims seeking removal of name from watch-list]; Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) [due process
requires that the government bear the standard of proof by clear and convincing evidence in a bond hearing
and that there must be a contemporaneous record by audio or transcript of that hearing]; Cruz Rendon v.
Holder, 603 F.3d 1104, 1109-10 (9th Cir. 2010) [due process violated where IJ refused to allow respondent to
fully testify in cancellation case because IJ insisted improperly that the information was in the psychologist’s
report]; U.S. v. Arais-Ordonez, 597 F.3d 972 (9th Cir. 2010) [affirmatively misleading petitioner by stating he
had “no administrative relief”]; Rendon v. Holder, 588 F.3d 669 (9th Cir. 2009) [IJ violated due process when
she unreasonably limited respondent’s testimony and denied a continuance in cancellation case]; Lacsina
Pangilinan v. Holder, 568 F.3d 708 (9th Cir. 2009) [IJ failed to assist pro se asylum applicant to develop his
case on the record]; Ram v. Mukasey, 529 F.3d 1238 (9th Cir. 2008) [IJ did not inquire if respondent wished
to continue without a lawyer and receive a knowing and voluntary affirmative response where lack of counsel
potentially affected the outcome]; Morgan v. Mukasey, 529 F.3d 1202, 1210–11 (9th Cir. 2008) [denial of 2
percipient witnesses the right to testify because they were not on witness list when their mother’s credibility
was put in doubt and they could corroborate her testimony]; Yeghiazaryan v. Gonzales, 439 F.3d 994 (9th Cir.
2006) [BIA improperly denied motion to reopen within the 90-day period because counsel did not
simultaneously file briefs when he filed a timely protective motion to reopen and stated he would file brief
later]; Zolotukhin v. Gonzales, 417 F.3d 1073 (9th Cir. 2005) [refusing to hear corroborative testimony from
family members and expert testimony and cutting short respondent’s testimony in religious persecution claim
from Russia]; Lopez-Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. 2005) [refusal to permit expert testimony
regarding domestic violence where it could have affected IJ’s view of respondent’s credibility and therefore
affected whether IJ should believe respondent over police officer about drug trafficking]; Kaur v. Ashcroft, 388
F.3d 734 (9th Cir. 2004) [IJ precluded respondent’s son from testifying yet faulted her for not offering
corroborating evidence at her asylum hearing]; Martinez-De Bojorquez v. Ashcroft, 365 F.3d 800 (9th Cir.
2004)[due process violated where appeal terminated under 8 CFR §1003.4 when respondent briefly crossed
the Mexican border for medical treatment, without being notified by the IJ that departure would terminate her
appeal]; Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1162–65 (9th Cir. 2005) [failure to give respondent a
hearing on whether he was previously removed illegally while he had a deportation hearing pending]; Garcia-
Cortez v. Ashcroft, 366 F.3d 749 (9th Cir. 2004) [BIA summarily dismissed appeal for failure to file a brief
when petitioners’ notice of appeal was sufficiently detailed and they filed brief late]; Flores-Chavez v.
Ashcroft, 362 F.3d 1150 (9th Cir. 2004) [reversing in absentia order against 15-year-old who was served with
OSC pursuant to former 8 CFR §103.5a where no service was provided to adult custodian]; Reyes-Melendez
v. INS, 342 F.3d 1001 (9th Cir. 2003) [where IJ took over questioning, did not act as a neutral fact finder, and
engaged in a stream of nonjudicious and snide comments demonstrating hostility to the respondent]; Singh v.
INS, 362 F.3d 1164 (9th Cir. 2004) [BIA sent transcript and briefing schedule to wrong address and then
refused to allow respondent the opportunity to file a brief beyond the scheduled time]; Ramirez-Alejandre v.
Ashcroft, 320 F.3d 858 (9th Cir. 2003) (en banc) [BIA had no procedures for treating evidence that arose
during the appeal process in suspension cases that often continued for years]; Cano-Merida v. INS, 311 F.3d
960, 964–65 (9th Cir. 2002) [pro se respondent withdrew claim following IJ’s off the record discussion with
respondent that he had no basis for asylum claim before he had opportunity to present evidence]; Agyeman
v. INS, 296 F.3d 871 (9th Cir. 2002) [IJ demanded that the only evidence he would accept of the bona fide
nature of respondent’s marriage was his wife’s testimony who did not appear because she was bipolar];
Sanchez-Cruz v. INS, 255 F.3d 775, 779–80 (9th Cir. 2001) [IJ refused to allow petitioner to present evidence
that contradicted some of his findings, where he called her a liar and focused almost exclusively on the
period she accepted public assistance in denying suspension]; Abovian v. INS, 219 F.3d 972, 978 (9th Cir.
2000) [BIA’s failure to give asylum applicant an opportunity to rebut adverse credibility findings raised for the
first time before BIA]; Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) [ineffective assistance of counsel
warranting remedy of allowing applicant to pursue suspension of deportation application under pre-1996 law];
Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000) [IJ inadequately explained hearing procedures and failed to
adequately advise respondent of her various roles including the right to be a witness and the Page 443 right
to affirmatively present testimony instead of merely being subject to examination. Analogized asylum hearing
to Social Security cases]; Perez-Lastor v. INS, 208 F.3d 773, 777–78 (9th Cir. 2000) [incompetent
translation]; Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) [failure to provide full and fair hearing of
claims and a reasonable opportunity to present evidence warrants reversal of asylum denial]; Campos-
Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999) [denial of asylum on credibility by BIA where person found
credible before IJ and never given opportunity to rebut]; but see Pal v. INS, 204 F.3d 935, 938–39 (9th Cir.
2000) [narrowing Campos-Sanchez where BIA credibility findings include IJs]; Gonzalez-Julio v. INS, 34 F.3d
820 (9th Cir. 1994) [striking down 10-day appellate filing deadlines for persons residing in Hawaii]; Castillo-
Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992) [taking administrative notice of adjudicative facts without
giving asylum applicant opportunity to be heard]; Tarhuni v. Holder, 8 F.Supp.3d 1253, 1272-76 (D. Or. 2014)
[USC plaintiff placed on no-fly list and thereby banned from international travel had a procedural due process
claim that was not remedied by DHS-TRIP]; Morisath v. Smith, 988 F.Supp. 1333, 1340–41 (W.D. Wash.
1997) [DD written decision on bond and failure to provide bond hearing].
Eleventh Circuit—Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987) [due process but must show
substantial prejudice]
Board of Immigration Appeals—Matter of Ching, 12 I&N Dec. 710, 712 (BIA 1968) [if in U.S., due process
attaches].
3. Cases Finding No Due Process Violation
U.S. Supreme Court—Demore v. Kim, 538 U.S. 510 (2003) [mandatory detention of LPRs under INA
§236(c)].
First Circuit—Olmos-Colaj v. Sessions, 886 F.3d 168, 174 (1st Cir. 2018) [decision by IJ to accept proffer of
expert’s testimony because of limited availability of expert after 3-day trial did not violate due process as the
“IJ has a right to run a trial as he/she sees fit”]; Matias v. Sessions, 871 F.3d 65, 71-72 (1st Cir. 2017) [no due
process violation for mistranslation of Todos Santos Mam in Guatemalans’ case absent a showing that a
more accurate interpretation would likely have made a dispositive difference in the outcome and no due
process violation for denial of sua sponte reopening because no liberty or property interest in reopening];
Davis v. Lynch, 802 F.3d 168, 177-80 (1st Cir. 2015) [it was not a violation of due process to deny respondent
the use of his passport to refresh his recollection or in the IJ’s decision to admit unsworn and unauthenticated
statements from the wife stating the marriage was fraudulent]; Hinds v. Lynch, 790 F.3d 259 (1st Cir. 2015)
[post-Padilla the court rejected an Eighth and Fifth Amendment “proportionality” challenge to removal as a
penalty requiring an individualized hearing to determine whether removal disproportionately sanctions
respondent]; Perera v. Holder, 750 F.3d 25, 30 (1st Cir. 2014) [not giving Sri Lankan respondent seeking
reopening due to change country conditions a chance to rebut government report was not a violation of due
process because BIA may take administrative notice of official document and no showing of prejudice];
Toribio-Chavez v. Holder, 611 F.3d 57, 65-67 (1st Cir. 2010) [submission of letter by former wife without her
testifying was not fundamentally unfair under the circumstances; nor was cross-examining him 3 times at
trial]; McCreath v. Holder, 573 F.3d 38, 41 (1st Cir. 2009) [no liberty or property interest in AOS]; Amouri v.
Holder, 572 F.3d 29, 35–37 (1st Cir. 2009) [IJ refusal to grant continuance, no prejudice]; Muñoz-Monsalve v.
Mukasey, 551 F.3d 1, 9 (1st Cir. 2008) [missing transcript where no showing of prejudice]; Magasouba v.
Mukasey, 543 F.3d 13, 15–16 (1st Cir. 2008) [DHS amended NTA to allege other aggravated felony grounds
where it acknowledged that the first allegations were insufficient and gave respondent sufficient time to
respond]; Santosa v. Mukasey, 528 F.3d 88, 93–94 (1st Cir. 2008) [no prejudice due to “weak” asylum case
even where IJ may have prematurely cut off presentation of evidence because IJ has right to regulate the
hearing]; Aguilar v. ICE, 510 F.3d 1, 21–24 (1st Cir. 2007) [substantive due process of parents to make
decisions regarding the care, custody and control of their children is not violated when they are arrested and
transported to out-of-state locations by ICE]; Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. 2007) [BIA
refusal to allow respondent outside the U.S. to reopen proceedings after 5 years because his conviction was
vacated]; Alsamhouri v. Gonzales, 484 F.3d 117, 122, 124 (1st Cir. 2007) [denial of continuance for new
counsel to file asylum application]; Chickwendu v. Gonzales, 415 F.3d 142 (1st Cir. 2005) [IJ’s reconstruction
of 2 witnesses testimony after forgetting to tape record them where counsel participated and did not object to
the Page 444 reconstruction and where there were affidavits from the witnesses in evidence and no showing
of prejudice]; Ali v. Beers, 988 F.Supp.2d 88 (D. Minn. 2013) [due process not violated when respondent
indefinitely required to make semi-annual appearances before ICE as a condition of his Order of
Supervision].
Second Circuit—Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018) [BIA’s determination in Matter of M-H-
Z- that there is no duress exemption to material support for terrorists is entitled to deference and the sole
alternative through a DHS waiver does not violate due process because there is no liberty or property
interest]; Marin-Marin v. Sessions, 852 F.3d 192 (2d Cir. 2017) [post-Padilla the court rejected an Eighth and
Fifth Amendment “proportionality” challenge to removal as a penalty requiring an individualized hearing to
determine whether removal disproportionately sanctions respondent]; Aslam v. Mukasey, 537 F.3d 110, 114–
15 (2d Cir. 2008) [videoconferencing of witness where respondent was given the opportunity to change
venue and the opportunity to fully cross-examine]; Cervantes-Ascencio v. INS, 326 F.3d 83, 86–87 (2d Cir.
2003) [the requirement that respondent waive appeal in order to obtain VD does not violate due process].
Third Circuit—Sunday v. U.S. Att’y Gen., 832 F.3d 211, 217-19 (3d Cir. 2016) [post-Padilla rejecting both
Eight and Fifth Amendment substantive due process arguments under theory that deportation is a penalty
and it is not proportional to his conduct and length of residence]; Contreras v. U.S. Att’y Gen., 665 F.3d 578,
583-86 (3d Cir. 2012) [no due process violation where counsel is ineffective before removal hearing in regard
to LC and I-140 despite its effect on the hearing]; Ponta-Garcia v. U.S. Att’y Gen., 557 F.3d 158, 161–64 (3d
Cir. 2009) [regulation permitting DHS officer to render decision instead of IJ in reinstatement does not violate
due process]; Mudric v. U.S. Att’y Gen., 469 F.3d 94, 98–99 (3d Cir. 2006) [delay in adjudicating asylum and
AOS applications; no constitutional right to asylum and no property interest invoked in failing to timely decide
a discretionary benefit]; Romanishyn v. U.S. Att’y Gen., 455 F.3d 175, 185–86 (3d Cir. 2006) [IJ’s refusal to
allow respondent to call more than 2 witnesses because submitting their testimony by affidavit did not render
the proceeding fundamentally unfair]; Kamara v. U.S. Att’y Gen., 420 F.3d 202, 211–12, 216–18 (3d Cir.
2005) [rejecting procedural due process challenge to bare nature of BIA’s decision in CAT claim and
substantive due process challenge based upon the state-created danger exception]; Paripovic v. Gonzales,
418 F.3d 240, 246 n.5 (3d Cir. 2005) [IJ refused to grant continuance to allow expert testimony where
respondent did not ask for continuance prior to hearing that was in its 8th year]; Bonhometre v. Gonzales,
414 F.3d 442, 448–50 (3d Cir. 2005) [no due process violation because INA §212(c)/212(h) relief was not
available to aggravated felon temporary resident]; Dia v. Ashcroft, 353 F.3d 228, 234–45 (3d Cir. 2003) (en
banc) [finding no due process violation regarding AWO streamlining procedure but noting three components
to due process are (1) “factfinding based on a record produced before the decisionmaker and disclosed to
him or her,” (2) the opportunity to “make arguments on his or her own behalf,” and (3) “an individualized
determination of his interests”]; Abdulrahman v. Ashcroft, 330 F.3d 587, 595–97 (3d Cir. 2003) [where IJ at
times in asylum hearing went “beyond the bounds of propriety,” her actions based on the record as a whole
did not demonstrate sufficient bias].
Fourth Circuit—Diop v. Lynch, 807 F.3d 70 (4th Cir. 2015) [IJ did not violate due process by declining to
continue or administratively close the removal proceeding to allow respondent to receive a mental health
evaluation]; Fayzullina v. Holder, 777 F.3d 807, 814-15 (6th Cir. 2015) [IJ’s sua sponte amendment of an
allegation in NTA to allege the correct conviction section of statute does not prejudice respondent]; Massis v.
Mukasey, 549 F.3d 631, 637 (4th Cir. 2008) [ineffective assistance of counsel does not deprive a respondent
of due process]; Afanwi v. Mukasey, 526 F.3d 788, 796–99 (4th Cir. 2008) [no constitutional right to effective
assistance of private counsel in removal proceedings because there is no state action].
Fifth Circuit—Ovalles v. Holder, 577 F.3d 288, 298–99 (5th Cir. 2009) [vacatur of conviction after departure
where petition denied motion to reopen because out of country] Ahmed v. Gonzales, 447 F.3d 433, 440 (5th
Cir. 2006) [denial of continuance to permit approval of a labor certification for INA §245(i) because AOS is
discretionary]; Rosales v. ICE, 426 F.3d 733, 736–38 (5th Cir. 2005) [where respondent was not informed of
rights under the Vienna Convention, no showing of prejudice]; De Zavala v. Ashcroft, 385 F.3d 879 (5th Cir.
2004) [no prejudice where respondent incorrectly charged as inadmissible as NIV when inadmissible as
immigrant].
Sixth Circuit—Montanez-Gonzalez v. Holder, 780 F.3d 720, 723-24 (6th Cir. 2013) [failure of IJ to fully
consider evidence submitted after close of case was not prejudicial because it would not Page 445 have
affected the outcome]; Suarez-Diaz v. Holder, 771 F.3d 935, 942-43 (6th Cir. 2014) [not a violation of due
process to voluntarily, through counsel, give up a right to CAT relief in exchange for a continuance]; Camara
v. Holder, 705 F.3d 219, 223-24 (6th Cir. 2013) [no prejudice or error where IJ/BIA failed to give spouse
opportunity to file separate asylum claim]; Villegas de la Paz v. Holder, 640 F.3d 650, 655-56 (6th Cir. 2010)
[in reinstatement of removal, DHS failure to allow petitioner to make a statement in violation of 8 CFR
§241.8(b), and its failure to give petitioner review of her “A” file were harmless]; Hassan v. Holder, 604 F.3d
915, 923-24 (6th Cir. 2010) [not a violation of due process for IJ to sit on case simply because she previously
was chief counsel for DHS in the district office]; Matovski v. Gonzales, 492 F.3d 722, 737–39 (6th Cir. 2007)
[IJ may rule on any ground of inadmissibility that arises during the course of proceedings and could consider
§212(a)(6)(C)(i) charge raised in relief phase but not charged as a ground of deportability]; Garza-Moreno v.
Gonzales, 489 F.3d 239, 241–42 (6th Cir. 2007) [although “due process demands a reasonably accurate and
complete transcript for meaningful appellate review” BIA decision upheld despite 67 “indiscernible” notations
in the transcript because there was no prejudice]; Bangura v. Hansen, 434 F.3d 487, 494–96 (6th Cir. 2006)
[INA §204(c) does not violate substantive or procedural due process]; Elia v. Gonzales, 431 F.3d 268, 275–76
(6th Cir. 2005) [failure to give incarcerated respondent a hearing within 5 years so he could apply for §212(c)
relief]; Gilaj v. Gonzales, 408 F.3d 275, 290 (6th Cir. 2005) [recognizing due process right to opening and
closing statements but finding harmless error where no prejudice].
Seventh Circuit—Cadavedo v. Lynch, 835 F.3d 779, 784-85 (7th Cir. 2016) [no due process violation to
decline to give respondent a separate hearing on whether first marriage was fraudulent thereby barring his
child’s petition for him where AOS is discretionary and no showing of prejudice]; Dominguez-Pulido v. Lynch,
821 F.3d 837, 846 (7th Cir. 2016) [claim that respondent did not receive a fundamentally fair proceeding
before an impartial IJ is not a colorable claim because it is appropriate to consider the Constitution only if the
statute and regulations are deficient]; Antia-Perea v. Holder, 768 F.3d 647, 653-59 (7th Cir. 2014) [not denied
due process where IJ refused respondent right to cross-examine officer who drafted I-213 and refused
continuance to seek pardon]; Singh v. Holder, 749 F.3d 622, 626-27 (7th Cir. 2014) [no due process violation
where NTA was personally served in English despite respondent’s claim he could not read or understand the
document and was a minor because his minor status is disputed and personal service gave him notice];
Champion v. Holder, 626 F.3d 952, 957-58 (7th Cir. 2010) [IJ’s refusal to grant closing argument does not
violate due process because cancellation is discretionary and there is no statutory or regulatory requirement
for closing argument]; Firishchak v. Holder, 636 F.3d 305, 309-10 (7th Cir. 2011) [a litigant does not have a
due process right to a randomly assigned judge]; Duad v. U.S., 556 F.3d 592, 596 (7th Cir. 2009) [admission
of reliable hearsay documents]; Jezierski v. Mukasey, 543 F.3d 886, 888–91 (7th Cir. 2008) [no statutory or
constitutional right to reopen a case due to ineffective assistance of counsel]; Alimi v. Gonzales, 489 F.3d 829
(7th Cir. 2007) [admission of respondent’s statement taken by officer at airport without presenting officer for
cross-examination]; Mireles v. Gonzales, 433 F.3d 965, 969 (7th Cir. 2006) [no constitutional right to have
removal proceedings initiated against respondent]; Hussain v. Gonzales, 424 F.3d 622, 626–27 (7th Cir.
2005) [IJ set 60 days for submission of documents for asylum rather than 10 days under the local rules; no
evidence that the earlier deadline prejudiced the respondent]; Hamid v. Gonzales, 417 F.3d 642, 645–47 (7th
Cir. 2005) [no specific right to present evidence through oral testimony; IJ’s refusal to allow live telephonic
expert testimony while not precluding an affidavit is not a per se due process violation, no prejudice
demonstrated]; Ramos v. Gonzales, 414 F.3d 800, 804–06 (7th Cir. 2005) [lawyer with EOIR-28 waived
client’s presence at all hearings, and no showing of prejudice despite respondent’s claim that IJ should have
determined that lawyer was authorized to do so]; Zaidi v. Ashcroft, 377 F.3d 678, 682 (7th Cir. 2004) [asylum
applicant given only 3 weeks to present claim, no showing of prejudice]; Kuschchak v. Ashcroft, 366 F.3d 597
(7th Cir. 2004) [IJ refusal to grant continuance where lawyer asked for expedited hearing on lottery
adjustment and IJ insisted that he also proceed on asylum claim]; Ciorba v. Ashcroft, 323 F.3d 539, 544–45
(7th Cir. 2003) [IJ announcing at beginning of asylum hearing that he reviewed documents and thought
asylum case was deficient but that he had not made up his mind].
Eighth Circuit—Bremer v. Johnson, 834 F.3d 925, 931-33 (8th Cir. 2016) [there is no protected liberty
interest in a marriage petition (following plurality opinion in Kerry v. Din), but even if there was a liberty
interest, the Adam Walsh Act prohibition against filing an I-130 petition is not a violation of due process
because applicants are given an opportunity to be heard]; Muiruri v. Lynch, 803 F.3d 984, 986-87 (8th Cir.
2015) Page 446 [respondent waived his constitutional, statutory and regulatory right to a removal hearing
where he asked IJ to grant motion to suppress and if not consider the evidence he presented herein]; Xin
Yang v. Holder, 747 F.3d 993 (8th Cir. 2014) [translation was not incompetent and IJ carefully addressed
each objection to insure no mistranslation]; Zeah v. Holder, 744 F.3d 577, 581-82 (8th Cir. 2014) [due process
was not violated when IJ refused to allow testimony that was cumulative]; Constanza-Martinez v. Holder, 739
F.3d 1100, 1102-03 (8th Cir. 2014) [IJ has duty to establish the record and therefore it was not a violation of
due process for the IJ to introduce USAID and DOS reports]; Martinez-Carcamo v. Holder, 713 F.3d 916, 924-
25 (8th Cir. 2013) [reject due process violation notwithstanding IJ’s clear error in suppression hearing where
there was no prejudice because no 4th amendment violation]; Wanyama v. Holder, 698 F.3d 1032, 1037 (8th
Cir. 2012) [no due process claim in asylum because there is no liberty interest in asylum]; Hernandez v.
Holder, 579 F.3d 864, 871–72 opinion vacated in part on other grounds 606 F.3d 900 (8th Cir. 2010) [no due
process right to a particular IJ where different IJ substituted after remand]; Bracic v. Holder, 603 F.3d 1027,
1032-33 (8th Cir. 2010) [despite procedural error in remanding case solely to enter order of removal, there
was no showing of prejudice]; Rafiyev v. Mukasey, 536 F.3d 853, 859–61 (8th Cir. 2008) [no due process
right to effective assistance of counsel]; Llapa-Sinchi v. Mukasey, 520 F.3d 897, 900–01 (8th Cir. 2008)
[service of OSC on minor over 14]; Abdelwase v. Gonzales, 496 F.3d 904 (8th Cir. 2007) [BIA’s refusal to
accept late-filed brief was not prejudicial because BIA entered AWO and court reviewed IJ’s decision];
Vonhm v. Gonzales, 454 F.3d 825, 829–30 (8th Cir. 2006) [pro se respondent not advised of right to present
evidence at final hearing but was told to bring affidavit and did so]; Obleshchenko v. Ashcroft, 392 F.3d 970,
971–72 (8th Cir. 2004) [no due process right regarding ineffective assistance of counsel in asylum claim,
because there is no liberty or property interest in discretionary relief]; Tamenut v. Ashcroft, 361 F.3d 1060 (8th
Cir. 2004) [where fax from U.S. consular section in Ethiopia was used to impeach applicant’s claim that he
was in jail, no due process violation because he could have rebutted through his own testimony]; Nyama v.
Ashcroft, 357 F.3d 812, 816–17 (8th Cir. 2004) [when asylum applications from other applicants with the
same story and same alleged parent as respondent were offered to impeach respondent, they were
admissible and did not violate due process because respondent had ample time to rebut].
Ninth Circuit—C.J.L.G. v. Sessions, 880 F.3d 1122, 1132-47 (9th Cir. 2018) [the Due Process clause does
not create a categorical right to court-appointed counsel at government expense for alien minors in removal
proceedings]; Padilla-Martinez v. Holder, 770 F3d 825, 831-33 (9th Cir. 2014) [BIA decision sua sponte to
remand case to give the government another opportunity to prove a conviction and the government’s
subsequent use of a faxed transcript to prove the conviction did not violate substantive or procedural due
process]; Arteaga-De Alvarez v. Holder, 704 F.3d 730, 736-37 (9th Cir. 2012) [due process not violated and
claim not colorable for purposes of judicial review where the IJ/BIA failed to grant cancellation of removal
after it granted husband’s case 4 years earlier on similar facts]; Morales-Izquierdo v. DHS, 600 F.3d 1076,
1091–92 (9th Cir. 2010) [no substantive due process violation under Moore v. City of East Cleveland, 432
U.S. 494 (1977) to separate noncitizen family members because there is no waiver for the 10-year
“permanent” bar under 8 USC §1182(a)(9)(C)]; Zetino v. Holder, 622 F.3d 1007, 1011-14 (9th Cir. 2010) [BIA’s
denial of untimely brief is not a due process violation when late filing was due to petitioner]; Valencia v.
Mukasey, 548 F.3d 1261 (9th Cir. 2008) [failure to inform respondent of asylum, withholding and CAT where
there was no plausible basis]; Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050–51 (9th Cir. 2008) [no due
process right to challenge effective assistance of counsel for a prehearing matter where counsel failed to
timely file I-130 petition for INA §245(i)]; Williams v. Mukasey, 531 F.3d 1040 (9th Cir. 2008) [publication of
CAT deadline for motions to reopen in the Federal Register is sufficient notice to person incarcerated];
Mendez-Mendez v. Mukasey, 525 F.3d 828, 835 (9th Cir. 2008) [IJ advanced hearing, denied continuance,
and petitioner, who was changing lawyers, failed to file application for relief within 3 months]; U.S. v. Reveles-
Espinoza, 522 F.3d 1044, 1048–49 (9th Cir. 2008) [NTA stated respondent was being deported for a
controlled substance offense but denying relief because cultivation of marijuana under Cal. law was an
aggravated felony]; Shin v. Mukasey, 547 F.3d 1019, 1024–25 (9th Cir. 2008) [deposition of corrupt DHS
official who sold “green cards” was taken in consolidated cases for judicial economy and used in
respondent’s removal proceeding]; Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495–98 (9th Cir. 2007) (en
banc) [AG regulation that assigns reinstatement to a DHS officer rather than an IJ does Page 447 not violate
procedural due process; Marcello v. Bonds, 349 U.S. 302 (1955) cited]; Salviejo-Fernandez v. Gonzales, 455
F.3d 1063, 1065–66 (9th Cir. 2006) [ICE did not charge respondent with an aggravated felony in the NTA but
used conviction to find respondent ineligible for cancellation]; Theagene v. Gonzales, 411 F.3d 1107, 1112–13
(9th Cir. 2005) [application by the BIA of an intervening en banc decision upon the government’s motion to
reconsider CAT]; Khan v. Ashcroft, 374 F.3d 825 (9th Cir. 2004) [upholding denial of motion to reopen in
absentia hearing to seek asylum, where respondent attended master calendar, did not show up for continued
hearing, and claimed due process violation because master calendar hearing was not translated]; Munoz v.
Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) [no substantive due process right to remain in U.S. where
respondent entered as one-year-old, has no family abroad, and is subject to removal because his parent
failed to protect him by filing for relief from removal when he was a minor]; Rojas-Garcia v. Ashcroft, 339 F.3d
814, 823–24 (9th Cir. 2003) [inadmissibility determination for “reason to believe” that person is a drug
trafficker based upon hearsay evidence where evidence was probative and fundamentally fair and ineffective
assistance of counsel did not result in prejudice]; Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003)
[aggressive and sometimes harsh questioning by IJ during asylum hearing]; U.S. v. Barraza-Leon, 575 F.2d
218, 220 (9th Cir. 1978).
Tenth Circuit—Vladimirov v. Lynch, 805 F.3d 955 (10th Cir. 2015) [due process was not violated where ICE
officer’s statements about marriage fraud were admitted without cross-examination and I-213 containing triple
hearsay was admitted without cross-examining the officer]; Aguilar-Aguilar v. Napolitano, 700 F.3d 1238 (10th
Cir. 2012) [Where DHS entered a final order upon service of the Notice of Intent in 8 USC §1228(b)
expedited removal proceedings for aggravated felons without permitting respondent the opportunity to
respond, due process was not violated because respondent does not contest the fact of his removability and
his AOS claim is not a protected liberty interest]; Witjaksono v. Holder, 573 F.3d 968 (10th Cir. 2009)
[inaccurate and incomplete transcript is not a violation of due process absent prejudice and petitioner failed
to correct the record of his testimony]; Arambula-Medina v. Holder, 572 F.3d 824, 827–29 (10th Cir. 2009) [no
liberty or property interest in cancellation]; Desta v. Ashcroft, 329 F.3d 1179, 1184–86 (10th Cir. 2003) [BIA
designated country where IJ forgot and respondent not given notice and opportunity to respond].
Eleventh Circuit—Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1252-53 (11th Cir. 2018) [due process was not
violated where respondent was denied a continuance in violation of EOIR rules to argue that his request for
cancellation should not be pretermitted based upon a same-day filing by the government because he could
not show ultimate prejudice in that the BIA and the circuit court found it should have been pretermitted based
upon his criminal conviction for a CIMT]; Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143-44 (11th Cir. 2010)
[due process not violated where asylum applicant never sought opportunity to explain to IJ why crime was
not “particularly serious”]; Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275–76 (11th Cir. 2009) [IJ’s decision to
exclude evidence not timely filed is not a due process violation because it is discretionary]; Frech v. U.S. Att’y
Gen., 491 F.3d 1277, 1280–82 (11th Cir. 2007) [no prejudice where IJ refused to change venue and
respondent argued he was denied the right to counsel and the ability to present evidence in NACARA waiver
case]; Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362–67 (11th Cir. 2006) [denial of continuance to permit
approval of labor certification for INA §245(i) where AOS is discretionary]; Garcia v. U.S. Att’y Gen., 329 F.3d
1217, 1223–24 (11th Cir. 2003) [following Mejia Rodriguez,no ineffective assistance of counsel that rises to a
due process violation where deficient representation “merely prevents the alien from being eligible” for
discretionary relief such as INA §212(h)]; Balogun v. U.S. Att’y Gen., 304 F.3d 1303 (11th Cir. 2002) [no
constitutional right to discretionary relief or to be eligible for discretionary relief and no constitutional right to
be advised of consequences of accepting advance parole].
D.C. Circuit—L. Xia v. Tillerson, 865 F.3d 643, 652-55 (D.C. Cir. 2017) [rejected due process challenge to
revocation of passport and certificate of citizenship because the government was not required to initiate a
denaturalization proceeding and could opt instead to simply use the administrative procedure of revocation
and cancellation which may be challenged in federal court] ;Abdelfattah v. DHS, 787 F.3d 524, 538-39 (D.C.
Cir. 2015) [recognizing a liberty and property interest in employment of LPR but finding none where plaintiff
did not “suffer a binding disqualification from work or broad preclusion from his or her chosen field;”
recognizing a due process liberty interest in the right to travel but where plaintiff, harassed for many years as
a potential terrorist, was Page 448 afraid to travel abroad as an LPR for fear he would not be permitted to
return and would be tortured in another country, the court found his claim too speculative]; Narenji v. Civiletti,
617 F.2d 745 (D.C. Cir. 1979).
4. Relief from Removal: A Matter of Grace or a Matter of Right?—[See also Chapter 8 (p.1621 et seq.),
infra.] In Arevalo v. Ashcroft, 344 F.3d 1, 14–15 (1st Cir. 2003), the court considered whether INA §241(a)(5)
(reinstatement of deportation order) may be applied retroactively to bar AOS filed prior to IIRIRA’s effective
date. In finding that the statute could not be applied retroactively the court noted that applying for AOS was a
vested right even if the relief itself was discretionary. Citing Accardi v. Shaughnessy, 347 U.S. 260 (1954),
and other cases, the court stated that “an alien is not precluded from having a vested right in a form of relief
merely because the relief itself is ultimately at the discretion of the Executive Branch.” See also INS v. St.
Cyr, 533 U.S. 289, 307–08 (2001) [“Traditionally, courts recognized a distinction between eligibility for
discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand. Eligibility
that was ‘governed by specific statutory standards’ provided ‘a right to a ruling on an applicant’s eligibility,’
even though the actual granting of relief was ‘not a matter of right under any circumstances, but rather is in
all cases a matter of grace’ ”]; Alcaraz v. INS, 384 F.3d 1150, 1162–63 (9th Cir. 2004) [Accardi principles have
binding effect on agency, but court remanded to BIA to determine whether various memoranda were
sufficient to establish repapering policy]; U.S. v. Copeland, 376 F.3d 61, 72 (2d Cir. 2004)[noting distinction
between “a right to seek relief and the right to the relief itself” and finding that “[t]he decisions holding that a
failure to inform an alien about Section 212(c) relief cannot be a fundamental error collapse this distinction
and incorrectly assume that, because the grant of Section 212(c) relief is itself discretionary, the denial of a
Section 212(c) hearing cannot be a fundamental procedural error”]; Rabiu v. INS, 41 F.3d 879, 883 (2d Cir.
1994); Mayers v. Reno, 175 F.3d 1289, 1301 n.15 (11th Cir. 1999); Gutierrez v. Ashcroft, 289 F.Supp.2d 555,
567–68 (D.N.J. 2003) [rejecting claim that because respondent has no due process right to obtain former INA
§212(c) relief, he has no due process claim to seek relief]. See also Abdallahi v. Holder, 690 F.3d 467, 472-73
(6th Cir. 2012) [although finding no error on the merits, the court rejected the government’s argument that the
respondent seeking AOS had no due process rights because he had no liberty interest in discretionary relief;
the court found the AG conflated “discretionary status” with “discretionary relief” and noted there was a due
process right to a full and fair hearing]. But see Aguilar-Aguilar v. Napolitano, 700 F.3d 1238 (10th Cir. 2012)
[Where DHS entered a final order upon service of the Notice of Intent in 8 USC §1228(b) expedited removal
proceedings for aggravated felons without permitting respondent the opportunity to respond, due process
was not violated because respondent does not contest the fact of his removability and his desire to have had
an opportunity to argue for AOS is not a protected liberty interest]; Chun Xin Chi v. Holder, 606 F.3d 6, 9 (1st
Cir. 2010) [No due process violation for denying motion to reopen for AOS despite passage of 10 years
beyond VD bar because there is no liberty or property interest in reopening a case]; McCreath v. Holder, 573
F.3d 38, 41 (1st Cir. 2009) [no due process violation in AOS because there is no cognizable liberty or
property interest]; Ibrahimi v. Holder, 566 F.3d 758, 765–66 (8th Cir. 2009) [good faith marriage waiver in
proceedings for CR does not implicate due process because no liberty interest in discretionary relief from
removal]; Dekoladenu v. Gonzales, 459 F.3d 500, 502–08 (4th Cir. 2006) [no due process violation in refusing
to toll VD period during a timely filed motion to reopen because motions to reopen and AOS are purely
discretionary and there is no property or liberty interest]; Hernandez v. Gonzales, 437 F.3d 341, 345–46 & n.7
(3d Cir. 2006) [no due process right to seek repealed suspension because there is no liberty interest to obtain
relief from deportation or to be found ineligible for it]; Hamdan v. Gonzales, 425 F.3d 1051, 1060–61 (7th Cir.
2005) [rejecting due process argument regarding IJ’s conduct in reviewing discretionary AOS]; Nguyen v.
District Director, 400 F.3d 255, 259 (5th Cir. 2005) [no due process right to eligibility for INA §212(c)
discretionary relief]; Guerra-Soto v. Ashcroft, 397 F.3d 637, 641 (8th Cir. 2005) [affirming BIA denial of
reopening on ground that when ineffective assistance of counsel touches upon respondent’s chance to seek
discretionary relief there is no due process issue]; Jupiter v. Ashcroft, 396 F.3d 487, 492–93 (1st Cir. 2005)
[rejecting due process claim where motion to reopen for AOS was denied for remaining beyond VD because
there is no property interest in discretionary VD or AOS]; Ali v. Ashcroft, 395 F.3d 722, 732 (7th Cir. 2005) [no
due process violation in applying Pickering to use vacated conviction to bar cancellation because there is no
liberty or property interest in discretionary relief]; Obleshchenko v. Ashcroft, 392 F.3d 970, 971–72 (8th Cir.
2004) [no due process right regarding ineffective assistance of counsel in asylum claim because Page 449
there is no liberty or property interest in discretionary relief]; U.S. v. Torres, 383 F.3d 92, 104–06 (3d Cir.
2004) [removal proceeding not fundamentally unfair where IJ did not inform respondent of the right to seek
§212(c) relief because relief was speculative and a matter of grace. Addressing Greenholtz and finding it
supported view that relief was speculative]; Assaad v. Ashcroft, 378 F.3d 471, 475–76 (5th Cir. 2004) [no due
process violation where counsel’s ineffective assistance involved the failure to obtain a discretionary waiver
of conditional residency]; Dave v. Ashcroft, 363 F.3d 649, 652–53 (7th Cir. 2004) [rejecting constitutional
challenge to streamlining and ineffective assistance of counsel as to discretionary cancellation]; Mireles-
Valdez v. Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003) [no due process violation in regard to discretionary VD];
Nativi-Gomez v. Ashcroft, 344 F.3d 805 (8th Cir. 2003) [discretionary relief such as AOS and INA §212(h)
cannot provide the constitutionally protected liberty interest necessary to give rise to a procedural due
process claim]; Smith v. Ashcroft, 295 F.3d 425, 429–31 (4th Cir. 2002) [no due process right to challenge
reinstatement order arising out of a denial of INA §212(c) under AEDPA and IIRIRA because relief is
discretionary]; Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000) [no constitutionally protected liberty interest in
obtaining discretionary relief from deportation]; Tefel v. Reno, 180 F.3d 1286, 1298–1305 (11th Cir. 1999)
[rejecting due process claim on grounds that suspension is a matter of grace and therefore no liberty interest
following Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464–67 (1981)]; Appiah v. INS, 202 F.3d
704 (4th Cir. 2000) [same].
5. Deportation is a Civil, Not Criminal, Proceeding
5.a. Ex Post Facto Clause inapplicable—because deportation is not criminal. Collins v. Youngblood, 497
U.S. 37 (1990); Lehmann v. U.S., 353 U.S. 685, 690 (1957); Marcello v. Bonds, 349 U.S. 302, 314 (1955);
Harisiades v. Shaughnessy, 342 U.S. 580 (1952); Morris v. Holder, 676 F.3d 309, 316-17 (2d Cir. 2012)
[followed Alvarado-Fonseca and rejected ex post facto challenge based upon Padilla v. Kentuckyto
IIRIRA’s retroactive definition of aggravated felony].Alvarado-Fonseca v. Holder, 631 F.3d 385, 391-92
(7th Cir. 2011) [rejected claim based upon language in Padilla v. Kentucky]. See also Gebhardt v. Nielsen,
879 F.3d 980, 986 (9th Cir. 2018) [the Adam Walsh Act prohibition against USC/LPR petitioners who
committed certain crimes against children from petitioning for their spouses even where the
acts/convictions occurred prior to the passage of the AWA is not violative of the Ex Post Facto clause
because it is not punitive]; Bremer v. Johnson, 834 F.3d 925, 932 (8th Cir. 2016) [Adam Walsh Act
prohibition against filing an I-130 petition is not punitive and does not retroactively punish persons for past
crimes, but rather regulates dangers that arise post-enactment]; Guaylupo-Moya v. Gonzales, 423 F.3d
121, 131–32 (2d Cir. 2005) [rejecting ex post facto challenge to expanded aggravated felony definition
that bars §212(h) relief]; Csekinek v. INS, 391 F.3d 819, 823–24 (6th Cir. 2004) [rejecting assertion that
retroactive application of IIRIRA violates Ex Post Facto Clause]; Perez v. Elwood, 294 F.3d 552, 557 (3d
Cir. 2002) [rejecting ex post facto challenge to retroactive application of provision abolishing INA §212(c)
because immigration is civil in nature]; Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) [Ex
Post Facto Clause does not apply to retroactive application of IIRIRA regarding finality of convictions];
Hamama v. INS, 78 F.3d 233 (6th Cir. 1996); U.S. v. Yacoubian, 24 F.3d 1, 9–10 (9th Cir. 1994); Dar v.
Olivares, 956 F.Supp.2d 1287, 1293-94 (N.D. Okla. 2013) [followed Morris in rejecting ex post facto
challenged based upon Padilla in the context of the denial of naturalization]; Kelly v. Farquharson, 256
F.Supp.2d 93, 101 n.7 (D. Mass. 2003). Although the Ex Post Facto Clause may be inapplicable in
immigration, the retroactive application of a law or regulation may, nevertheless, be subject to challenge.
See Chapter 10, Section IX.M (p. 1991), infra.
5.b. Bill of Attainder Clause inapplicable—because deportation is not a punishment or penalty. Matter of
Kulle, 19 I&N Dec. 318 (BIA 1985); Linnas v. INS, 790 F.2d 1024 (2d Cir. 1986) [amendment to INA
§241(a) deporting Nazis].
5.c. Speedy Trial Act inapplicable—because immigration proceedings are not considered criminal
proceedings. Argiz v. INS, 704 F.2d 384 (7th Cir. 1983). But if visa holder is placed in a criminal
proceeding, he is entitled to the benefits of the Speedy Trial Act. U.S. v. Toma, 869 F.Supp.2d 1315 (D.
Kan. 2012) [case dismissed on Speedy Trial grounds where B-2 visa holder charged under 18 USC
§911in 2005 for false claim to U.S. citizenship was not informed of indictment until 2011]. Page 450
5.d. Sixth Amendment right to counsel inapplicable—Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th
Cir. 2007) (en banc) [in challenge to administrative reinstatement no Sixth Amendment right to counsel];
Stroe v. INS, 256 F.3d 498 (7th Cir. 2001) [no Sixth Amendment right to counsel; dicta suggests no Fifth
Amendment right]; U.S. v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); Lozada v. INS, 857 F.2d 10,
13 (1st Cir. 1988); Mantell v. INS, 798 F.2d 124 (5th Cir. 1986); Deutsch v. INS, 943 F.Supp. 276, 279
(W.D.N.Y. 1996) [failure to provide INS inmate with speedy trial was not Sixth Amendment violation],
5.e. Double Jeopardy inapplicable—Seale v. INS, 323 F.3d 150, 159–60 (1st Cir. 2003) [rejecting ex post
facto and double jeopardy arguments that conviction for assault with intent to murder that arose before
1988 was not an aggravated felony]; De La Teja v. U.S., 321 F.3d 1357, 1364–65 (11th Cir. 2003) [double
jeopardy does not apply to purely civil immigration proceedings]; U.S. v. Yacoubian, 24 F.3d 1, 10 (9th Cir.
1994); Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 n.7 (9th Cir. 1993); U.S. v. Garay-Burgos, 961
F.Supp. 1321 (D. Ariz. 1997) [no double jeopardy for rehearing after deportation hearing]; Scheidemann v.
INS, 83 F.3d 1517, 1521 n.4 (3d Cir. 1996).
5.f. Miranda warnings not required—U.S. v. Molina-Gomez, 781 F.3d 13, 22 (1st Cir. 2015) [events that
signal custody away from the border will not be enough at the border, quoting U.S. v. Moya, 74 F.3d 1117,
1120 (11th Cir. 1996)]; U.S. v. Kiam, 432 F.3d 524, 528–31 (3d Cir. 2005) [Miranda warnings not required
when officer determines admissibility at the border]; U.S. v. Solano-Godines, 120 F.3d 957 (9th Cir. 1997);
U.S. v. Harder, 180 F.Supp.3d 355 (E.D. Pa. 2016) [Russian LPR returning from trip abroad did not need
to be given Miranda warnings at the border because he was not in custody despite subsequent
indictment].
5.g. Eighth Amendment may not apply—Dominguez-Pulido v. Lynch, 821 F.3d 837, 845-46 (7th Cir. 2016)
[Excessive Fine Clause of Eighth Amendment not applicable because a removal order is not a fine]; Hinds
v. Lynch, 790 F.3d 259 (1st Cir. 2015) [post-Padilla the court rejected an Eighth and Fifth Amendment
“proportionality” challenge to removal as a penalty requiring an individualized hearing to determine
whether removal disproportionately sanctions respondent]; Marin-Marin v. Sessions, 852 F.3d 192 (2d Cir.
2017) [same; rejecting proportionality argument]; Sunday v. U.S. Att’y Gen., 832 F.3d 211, 217-19 (3d Cir.
2016) [same]; Eid v. Thompson, 749 F.3d 118, 125-26 (3d Cir. 2014) [rejecting Eighth Amendment claim
that deporting someone due to marriage fraud where second marriage was valid was disproportionate
penalty because deportation is civil]; Zamora-Mallari v. Mukasey, 514 F.3d 679, 695 (7th Cir. 2008)
[stripping LPR of residency and not allowing a §212(c) claim due to Matter of Blake because there is no
comparable ground of inadmissibility is not a “fine” under the Eighth Amendment because removal is not
punishment]; Cadet v. Bulger, 377 F.3d 1173, 1196–97 (11th Cir. 2004)[Eighth Amendment does not apply
to civil deportation claim by Haitian that would suffer cruel and unusual punishment if deported to Haiti
where he would be imprisoned]; Builes v. Nye, 239 F.Supp.2d 518, 523–24 (M.D. Pa. 2003) [Colombian
drug informant who would be killed upon return to Colombia could not rely on Eighth Amendment]. But
see generally Austin v. U.S., 509 U.S. 602 (1993) [Eighth Amendment applies to civil forfeitures]; U.S. v.
Halper, 490 U.S. 435 (1989). But see U.S. v. Ursery, 518 U.S. 267 (1996) [forfeiture].
6. Statute of Limitations—Removal proceedings are to begin “as expeditiously as possible after the date of
conviction…” 8 USC §1229(d)(1). There is, however, no statute of limitations in immigration proceedings. The
effort by one brilliant lawyer to incorporate the five-year statute of limitations for “any civil fine, penalty, or
forfeiture” under 28 USC §2462 has been rejected by at least one court. Restrepo v. U.S. Att’y Gen., 617 F.3d
787, 800-802 (3d Cir. 2010) [rejected claim in case where government did not begin removal proceedings
until 10 years after petitioner’s conviction].
7. Failure of Agency to Follow Its Own Rules—An agency’s failure to follow its own regulations that are
promulgated to protect fundamental statutory or constitutional rights violates due process and no showing of
prejudice or harmful error is required. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Bridges v. Wixon, 326
U.S. 135 (1945); U.S. v. Raya-Vaca, 771 F.3d 1195, 1202-06 (9th Cir. 2014) [where the regulatory violation
constituted a due process violation because respondent in expedited removal was never give notice and an
opportunity to respond to the charges as provided in 8 CFR §235.3(b)(2)(i)]; Oliva-Ramos v. U.S. Att’y Gen.,
694 F.3d 259, 272-74 (3d Cir. 2012) [violation of Page 451 due process not to grant the issuance of
subpoenas to prove need to suppress evidence due to egregious and widespread Fourth Amendment
violations where regulation required IJ to (“shall”) issue subpoena]; Leslie v. U.S. Att’y Gen., 611 F.3d 171 (3d
Cir. 2010) [IJ failure to properly notify respondent of the availability of free legal services required reversal
and no showing of prejudice was necessary]; Singh v. DOJ, 461 F.3d 290, 295–97 (2d Cir. 2006) [failure of
BIA to follow regulation regarding acceptance of evidence concerning hardship that occurred after conditional
residency is terminated was an abuse of discretion]; 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”];
Millian-Zamora v. Ashcroft, 228 F.Supp.2d 272, 277–80 (E.D.N.Y. 2002) [where IJ violated the law, INA
§240(b)(4)(C), and regulation (8 CFR §1240.9) by not recording a witness’s testimony, prejudice need not be
shown]. See also Sanchez v. Sessions, 870 F.3d 901, 912-13 (9th Cir. 2017) [where the Coast Guard violated
8 CFR §287.8(b)(2) regarding the right to detain only if there is reasonable suspicion based upon specific
articulable facts, the court terminated removal proceedings because the regulation serves a purpose/benefit
to the noncitizen and the noncitizen was prejudiced by the violation]. But see U.S. v. Caceres, 440 U.S. 741
(1979) [court only has a duty to enforce an agency regulation when compliance with the regulation is
mandated by the Constitution or a statute and the Due Process Clause is not implicated absent reliance on
the regulation or where a breach of the regulation had effect on plaintiff’s conduct]; Brown v. Holder, 763 F.3d
1141, 1147-49 (9th Cir. 2014) [rejecting Accardi as a constitutional principle instead of a rule of administrative
law and finding that an agency’s violation of its regulations per se is not a violation of due process; but
recognizing that underlying conduct of agency may violate due process]; Maldonado v. Holder, 763 F.3d 155,
161-63 (2d Cir. 2014) [nonegregious violations of internal agency regulations such as 8 CFR §§287.8(b), (c)
are not basis to terminate proceedings]; Nolasco v. Holder, 637 F.3d 159, 162-65 (2d Cir. 2011) [failure to
serve NTA on an adult, instead of the minor, consistent with regulation did not implicate a fundamental right
and there was no showing of prejudice]; Rajah v. Mukasey, 544 F.3d 427, 443–48 (2d Cir. 2008) [prehearing
violations of 8 CFR §287.3 and 8 CFR §287.8 cannot result in suppression of evidence or termination of
proceedings where violations did not affect the outcome of the proceeding, were not conscience-shocking,
and were not a deprivation of fundamental rights, but instead were harmless and nonegregious]; Ali v.
Mukasey, 524 F.3d 145, 149–50 (2d Cir. 2008) [following Waldron and holding that a violation of the rule
allowing withdrawal of an asylum application at 8 CFR §103.2(b)(6) is not grounded in a fundamental
constitutional or statutory right and therefore there is no due process violation absent prejudice]; Mema v.
Gonzales, 474 F.3d 412, 420–21 (7th Cir. 2007) [no due process violation for failing to inform respondent
under §1240.11(a)(2) of his right to withdraw application for admission where there is no showing of
prejudice]; Martinez-Camargo v. INS, 282 F.3d 487 (7th Cir. 2002)[where the violation of a regulation, here 8
CFR §287.3, does not affect a constitutional right, proceedings will not be invalidated where there is no
showing of prejudice]; Waldron v. INS, 17 F.3d 511 (2d Cir. 1994) [reversal required only when the violation is
a fundamental right derived from the constitution or federal statute]; Mullen-Cofee v. INS, 976 F.2d 1375,
1380 n.12 (11th Cir. 1992), amended on denial of reh’g,986 F.2d 1364 (11th Cir. 1993) [failure to notify
respondent of right to counsel not a due process violation where no substantive prejudice shown]; Arzanipour
v. INS, 866 F.2d 743, 746 (5th Cir. 1989) [no due process violation unless regulation is required by the
statute]; U.S. v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979); Matter of Nwokoma, 20 I&N Dec. 899 (BIA
1994) [citing Brock v. Pierce Cnty., 476 U.S. 253 (1986), in finding that language of statutes and regulations
compelling adjudication of petition within 90 days does not bar subsequent INS action].
8. Equal Protection: Irrational Distinctions Drawn by Agency or Congress Cannot be Upheld—Yeung v.

INS, 76 F.3d 337 (11th Cir. 1995) [extending INA §212(h) to deportation]; Legalization Assistance Project v.
INS, 976 F.2d 1198, 1211 (9th Cir. 1992); Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Bedoya-Valencia v.
INS, 6 F.3d 891 (2d Cir. 1993) [extending INA §212(c) to EWI under Francis rule]; Wallace v. Reno, 24
F.Supp.2d 104, 105–09 (D. Mass. 1998), aff’d on other grounds, 194 F.3d 279 (1st Cir. 1999) [application of
AEDPA §440(d) to deportable persons violates the Equal Protection Clause].
But see Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) [an expunged state court conviction
for simple possession is a conviction for immigration purposes and in a very “relaxed Page 452 form of
rational basis” review equal protection does not require it be treated the same as the FFOA]; Canto v. Holder,
593 F.3d 638, 640–41 (7th Cir. 2010) [rejecting equal protection challenge to aggravated felony statute that
wipes away foreign conviction after 15 years but does not do the same for domestic convictions as not
“wholly irrational”]; Mejia-Rodriguez v. Holder, 558 F.3d 46, 49–50 (1st Cir. 2009) [under rational basis review
INA §101(a)(13)(C) is constitutional because a returning LPR may be treated differently than an LPR who
never left]; Abebe v. Mukasey, 554 F.3d 1203, 1205–07 & n.4 (9th Cir. 2009) (en banc) [applying a broad
rational basis test—”whether a hypothetically rational Congress could have adopted the statutory scheme”—
and finding that equal protection is not violated if LPRs in deportation proceedings are prohibited from
seeking INA §212(c) relief]; Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) [equal protection is
not violated under a facially legitimate and bona fide standard by not allowing 212(h) waiver to defeat
deportation while permitting it to challenge inadmissibility]; Malagon De Fuentes v. Gonzales, 462 F.3d 498,
503–05 (5th Cir. 2006) [equal protection is not violated under rational basis review where Congress treated
only certain LPRs as arriving aliens and not others]; Masnauskas v. Gonzales, 432 F.3d 1067 (9th Cir. 2005)
[denying equal protection challenge by Lithuanian spouse to NACARA §202 that provides for derivative
adjustment only for Nicaraguan or Cuban spouses]; Flores-Ledezma v. Gonzales, 415 F.3d 375, 381–82 (5th
Cir. 2005) [equal protection not violated under a rational basis standard by giving the AG the choice to
institute summary removal under INA §238(b) or proceedings before an IJ for nonresidents where relief may
be obtained]; Elkins v. Comfort, 392 F.3d 1159 (10th Cir. 2004) [equal protection not violated under rational
basis standard by refusal to extend FFOA treatment to foreign expunged conviction]. Resendez-Alcaraz v.
U.S. Att’y Gen., 383 F.3d 1262, 1271–72 (11th Cir. 2004) [utilizing a highly deferential rational basis test to
reject equal protection challenge against treating expungements under state law differently than
expungements under FFOA]; Chen v. Ashcroft, 381 F.3d 221, 227–28 (3d Cir. 2004) [statute that provides
only for spouses and not fiancées to receive asylum benefits for abortion/forced sterilization is both
under/over-inclusive but not irrational; deferring to agency interpretation in Matter of C-Y-Z- and denying
asylum and withholding to fiancée].Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. 2004)[under the “entry
doctrine” fiction, a person seeking admission does not have an equal protection right to the same procedures
for AOS before the IJ as a deportable person]; Latu v. Ashcroft, 375 F.3d 1012, 1019–21 (10th Cir. 2004)
[§212(h) prohibition against granting LPRs a waiver if they are aggravated felons but allowing non-LPRs to
apply has a rational basis]; Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1122–23 (9th Cir. 2002) [not
irrational to allow persons in exclusion proceedings to obtain INA §212(c) relief but to deny it to those in
deportation]; Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002) [rejecting equal protection challenge to
differing treatment between those who go to trial and those who pleaded guilty in St. Cyr §212(c) context];
Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002) [rejecting equal protection claim on rational basis test denying
212(h) eligibility to certain LPRs while granting it to nonresidents]; Moore v. Ashcroft, 251 F.3d 919, 923–25
(11th Cir. 2001) [same]; De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637–40 (3d Cir. 2002) [same];
Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002) [same]; Lara-Ruiz v. INS, 241 F.3d 934, 946–48 (7th
Cir. 2001) [same]; Rodriguez-Silva v. INS, 242 F.3d 243, 248 (5th Cir. 2001) [benefits given to certain
nationalities under NACARA does not violate equal protection because the Fifth Amendment does not “in any
way restrict Congress’ authority to set admission and naturalization criteria that are place of origin or
nationality-sensitive.…”]; Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 308–09 (5th Cir. 1999) [equal
protection not violated and Francis distinguished] DeSousa v. Reno, 190 F.3d 175, 183–85 (3d Cir. 1999)
[same]; Jurado-Gutierrez v. Greene, 190F.3d 1135, 1152 (10th Cir. 1999) [no equal protection violation
regarding denial of §212(c)]; Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001)[no equal protection violation
regarding statute cutting off suspension to certain nationalities]; Pinho v. INS, 249 F.3d 183 (3d Cir. 2001)
[same]; Bartoszewska-Zajac v. INS, 237 F.3d 710, 714–15 (6th Cir. 2001) [same]; Tefel v. Reno, 180 F.3d
1286, 1298–99 (11th Cir. 1999) [same]; Appiah v. INS, 202 F.3d 704 (4th Cir. 2000) [same]; Carr v. INS, 86
F.3d 949 (9th Cir. 1996); Campos v. INS, 961 F.2d 309, 315–17 (1st Cir. 1992).
It equal protection challenges to gender based claims that Court exercises a “heightened scrutiny” that
requires an “exceedingly persuasive justification” to uphold the distinction from an equal protection challenge.
Sessions v. Morales-Santana, 582 U.S. __, 137 S.Ct. 1678 (2017) [relied on heightened scrutiny due to
gender claim, and found the requirement for transmission of citizenship under what is now INA §301(g) [8
USC §1401(g)] and §309 [8 USC §1409]—that the unwed father must Page 453 have 5 years’ physical-
presence in U.S. after the age of 14 prior to the child’s birth, while the unwed mother was only required to
have one year—violated equal protection, but held that, pending congressional action, the 5-year presence
requirement would be utilized].
C. USCIS Forms Have Force of Law—In removal or other proceedings where forms are involved, the language
of the forms (e.g., I-589, application for a stay) are incorporated into USCIS regulations. 8 CFR §103.2(a)(1).
[“Every form, benefit request, or other document must be submitted to DHS and executed in accordance with the
form instructions regardless of a provision of 8 CFR chapter 1 to the contrary. The form’s instructions are hereby
incorporated into the regulations requiring its submission.”]. For further discussion see Chapter 6, ¶ H.6
(p.1360), infra.
D. REAL ID Act Standard for Relief—The REAL ID Act altered removal proceedings by placing all burdens on
the respondent seeking relief. INA §240(c)(4) places the burden of proof on the applicant for relief to establish
that he or she: (1) satisfies the applicable eligibility requirements; and (2) merits a favorable exercise of
discretion. It also altered the standards for corroborating evidence, §240(c)(4)(B), and granted IJs wide latitude
in making credibility decisions. §240(c)(4)(C). See in this chapter “Burden of Proof,” ¶ IV.O.4.c (p.253), supra; ¶
VI.A.11.c (p.354), supra; and ¶ T.7.u (p.639), infra.
E. De Facto Deportation of USC or LPR Children and Separating Families—De facto deportation of a USC
child has not been recognized as a legal basis to stay or prevent deportation of their undocumented or otherwise
ineligible parents. Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 620-29 (6th Cir. 2010) [no cause of action
exists for a severely disabled U.S. citizen child’s claim that removal of his undocumented mother would violate
his constitutional and international law rights because the remedy of undoing the mother’s removal order is
barred in the district court by INA §242(b)(9)]; Payne-Barahona v. Gonzales, 474 F.3d 1, 2–4 & n.1 (1st Cir.
2007) (and cases cited therein) [rejecting Fifth Amendment and international law claims as a basis to stop
parent’s removal where child was USC]; Acosta v. Gaffney, 558 F.2d 1153 (3d Cir. 1977); Matter of Anaya, 14
I&N Dec. 488 (BIA 1973). There may be no jurisdiction to hear the de facto claim. Aguilar ex rel. Wargo v.
Mukasey, 547 F.Supp.2d 182 (D. Conn. 2008) [finding no jurisdiction under INA §242(b)(9) to hear child’s claims
regarding deportation of father]; Coleman v. U.S., 454 F.Supp.2d 757, 766–69 & n.11 (N.D. Ill. 2006) [USC son
who brought action enjoining mom’s removal failed to state a cause of action because he suffered no
constitutional violation]. However, one circuit has considered that constructive deportation may permit a claim.
Benyamin v. Holder, 579 F.3d 970, 974–75 (9th Cir. 2009) [in asylum proceeding involving FGM of the child the
court remanded the case to BIA noting “constructive deportation” and that it is proper to consider “any hardship
to the alien child due to the deportation of her parent”]; Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002),
rev’d on jurisdictional grounds, 329 F.3d 51 (2d Cir. 2003) [reversing on jurisdictional grounds the grant of INA
§212(h) relief to LPRs who committed pre-AEDPA/IIRIRA crimes but were convicted after passage of the acts
because it violates the International Covenant on Civil and Political Rights and customary international law in
that it results in separation from USC children]. But see Oliva v. DOJ, 433 F.3d 229 (2d Cir. 2005) [denying claim
preventing removal of a father of a USC child under Articles 3(1) and 7(1) of the U.N. Convention on the Rights
of the Child, because the cancellation statute governing eligibility trumps a claim based on customary
international law]; Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1187–88 (8th Cir. 2005) [same in regard to
preventing deportation due to harm to child]; Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009–13 (9th Cir.
2005) [denying claim that U.N. Convention on the Rights of the Child was violated or inconsistent with the
cancellation statute because Article 9(4) recognizes the potential for parents to be deported and cancellation
weighs the hardship to the child]; Guaylupo-Moya v. Gonzales, 423 F.3d 121, 132–37 (2d Cir. 2005) [finding
Beharry’s international law analysis inappropriate because Congress clearly intended to bar LPRs with
aggravated felonies from obtaining §212(h) relief and Beharry relied on Congress’s ambiguity]. At least one
court has also determined that a guardian ad litem need not be appointed for a 15-year-old Nicaraguan boy in
deportation proceedings. Calero v. INS, 957 F.2d 50 (2d Cir. 1992). One circuit has also determined that the
forced separation of parents from their children by arresting the parents and transferring them to other states
awaiting removal proceedings does not violate substantive due process. Aguilar v. ICE, 510 F.3d 1, 21–24 (1st
Cir. 2007). Also, the denial of cancellation resulting in removal of a family member does not implicate the due
process right to family unity. De Mercado v. Mukasey, 566 F.3d 810, 812–13 & n.5 (9th Cir. 2009). But see H.R.
Rep. No. 85-1199, pt. 2 (1957) reprinted in 1957 U.S.C.C.A.N. 2016, 2020 [the “legislative history of the [INA]
clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with
the problem of keeping families of United States citizens and immigrants united”]. Nor does the refusal to grant a
waiver Page 454 for the 10-year “permanent” bar under 8 USC §1182(a)(9)(C). Morales-Izquierdo v. DHS, 600
F.3d 1076, 1091–92 (9th Cir. 2010) [holding Moore v. City of East Cleveland, 432 U.S. 494 (1977) inapplicable to
noncitizens].
Courts have also addressed the assertion of asylum/withholding of the parent when the child may be in danger.
See Chapter 4, ¶ XI.B.11 (p.865), infra.
Prosecutorial Discretion re Parents of Children Whether the Children are USCs, LPRs, or Unlawful—The former
policy of considering prosecutorial discretion, parole and release of parents to facilitate their reunification with
their children expressed in the Memo, Sandweg, Acting Director, ICE, 11064.1, Facilitating Parental Interests in
the Course of Civil Immigration Enforcement Activities (Aug. 23, 2013), AILA Doc. No. 13082642has been
superseded by ICE Policy 11064.2, Detention and Removal of Alien Parents or Legal Guardians (Aug. 29,
2017), AILA Doc. No. 18042302[the new memo takes a far more limited view toward assisting parents of minor
children who may be in parental termination proceedings or in separate custody in another facility. It
contemplates the separation of children from their parents but allows for the possibility that parents, under
limited circumstances, may visit their children and participate in proceedings affecting the child].
F. Suppression of Illegally Obtained Evidence
1. Basic Issues—The basic issues to review in suppression matters are:
Was there a search or seizure? [U.S. v. Mendenhall, 446 U.S. 544 (1980); U.S. v. Martinez-Fuerte, 428
U.S. 543 (1976)];
If there was a search or a full-scale seizure (i.e., an arrest) was there probable cause? [Dunaway v.
New York, 442 U.S. 200 (1979)];
If there was a limited seizure (i.e., a stop) was there reasonable suspicion? [Terry v. Ohio, 392 U.S. 1
(1968)];
If there was a seizure that was supported by the relevant evidentiary standard (probable cause or
reasonable suspicion) was it unreasonably prolonged? [Rodriguez v. U.S., 135 S.Ct. 1609 (2015)
[absent reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the
Fourth Amend]; Arizona v. U.S., 567 U.S. 387, 413-14 (2012); Muehler v. Mena, 544 U.S. 93, 100-01
(2005); Illinois v. Caballes, 543 U.S. 405, 407 (2005)] or executed with unreasonable or excessive
force? [Terry v. Ohio, 392 U.S. 1 (1968); Tekle v. U.S., 511 F.3d 839, 849-50 (9th Cir. 2012)];
Does the party asserting the constitutional right have standing? [Rakas v. Illinois, 439 U.S. 128 (1978)];
Does the Fourth Amendment apply at all? [U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)]; Castro v.
Cabrera, 742 F.3d 595 (5th Cir. 2014) [absent infliction of wanton or malicious infliction of pain or gross
physical abuse, excludable aliens stopped before entry have no Fourth Amendment rights].
Is Miranda v. Arizona, 384 U.S. 436 (1966), applicable? Missouri v. Seibert, 542 U.S. 600 (2004)
[confession obtained without Miranda warnings still inadmissible even if repeated after warnings were
given].
No Profiling—Fact Sheet, U.S. Department of Justice Racial Profiling Guidance, Dec. 7, 2014, AILA
Doc. No. 14121646 [no profiling by DHS generally in regard to the use of race, ethnicity, gender,
national origin, religion, sexual orientation or gender identity].
2. Property Outside U.S.—An alien with insignificant ties to the U.S. has no Fourth Amendment right to
prevent the seizure of his property located outside the U.S., even where the person is in the U.S. and the
seizure failed to comply with Fourth Amendment standards. U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990).
3. Removal Proceedings—In removal proceedings respondent generally cannot suppress evidence asserted
to be procured in violation of the Fourth Amendment. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)
[exclusionary rule generally inapplicable in deportation proceedings] Matter of Sandoval, 17 I&N Dec. 70 (BIA
1979); Sanchez v. Sessions, 885 F.3d 782 (4th Cir. 2018) [exclusionary rule does not apply in “full force” but
the egregious exception remains and noting that a stop without reasonable suspicion of criminal activity “will
usually be egregious”]. May also not suppress evidence where violation is committed by separate sovereign.
Lopez-Gabriel v. Holder, 653 F.3d 683, 686 (8th Cir. 2011) Page 455 [opining that a stop by local police may
not be used to suppress evidence in removal proceeding]. And at least one circuit has taken the position that
the exclusionary rule does not apply to statutory violations. Downs v. Holder, 758 F.3d 994, 998-99 (8th Cir.
2014) [denied motion to suppress educational records under the Federal Educational Rights and Privacy Act
where student represented herself as USC on school records because exclusionary rule does not apply
“absent egregious violation of the Fourth Amendment or other liberty which transgresses the fundamental
fairness of the removal proceedings or affects the probative value of the evidence obtained”]. But if there was
a policy or widespread abuse, or if there are egregious Fourth Amendment violations which transgress
notions of fundamental fairness, the exclusionary rule may apply. Lopez Mendoza, supra at 1050–51 and n.5;
Matter of Cervantes, 21 I&N Dec. 351, 353 (BIA 1996). In Oliva-Ramos v. U.S. Att’y Gen., 694 F.3d 259, 274-
82 (3d Cir. 2012) the Third Circuit defined what it regarded as egregious and widespread violations. The
court determined that an egregious violation within the meaning of Lopez-Mendoza arises if “the record
evidence establishes either (a) that a constitutional violation that was fundamentally unfair had occurred, or
(b) that the violation—regardless of its unfairness—undermined the reliability of the evidence in dispute.” Id.
at 278. The court also recognized that “widespread” violations were a separate ground for suppression of
evidence and quoted from Justice Kennedy’s opinion in Hudson v. Michigan noting that there would have to
be a “consistent pattern” that is more than a single Fourth Amendment violation. Id. at 280-81. In the Second
Circuit, the court looked to the totality of the circumstances and found that a nighttime, warrantless raid of a
person’s home by government officials without reasonable suspicion and without consent constituted an
egregious violation of the Fourth Amendment. Cotzojay v. Holder, 725 F.3d 172, 181-84 (2d Cir. 2013). The
circuit court also held that identity may be suppressed (other than a person’s name) when there is an
egregious violation. Pretzantzin v. Holder, 736 F.3d 641, 646-51 (2d Cir. 2013). In the Ninth Circuit the inquiry
appears similar to a qualified immunity analysis and the court found that entering a home without a warrant or
consent may be an “egregious” violation of the Fourth Amendment warranting suppression of the I-213.
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008). Seizing person outside of his apartment and
conducting a nonconsensual warrantless search based solely on his Nigerian-sounding name is an
egregious violation warranting suppression. Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994) [an egregious
Fourth Amendment violation does not require that the violation undermine the probative value of the
evidence]. Stopping someone based solely on race constitutes an egregious violation and the evidence will
be suppressed. Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) [where border patrol stopped Hispanic
and all other reasons had low probative value, evidence suppressed]. Coast Guard stopping and seizing a
Mexican citizen based solely on his Hispanic appearance was an egregious Fourth Amendment violation and
a violation of 8 CFR §287.8(b)(2). Sanchez v. Sessions, 870 F.3d 901 (9th Cir. 2017) [suppression of the I-
213 due to the Fourth Amendment violation and termination of the removal proceeding due to the regulatory
violation]. But see Sanchez v. Sessions, 885 F.3d 782 (4th Cir. 2018) [relying on a 9 part test and the totality
of the circumstances a Maryland state trooper’s stop that was not based solely on race or ethnicity was not
an egregious violation warranting suppression]; Corado-Arriaza v. Lynch, 844 F.3d 74, 78 (2d Cir. 2016)
[detaining, arresting and obtaining information from wrong person was not egregious violation under totality
of the circumstances]; Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2016) [very minor physical abuse in
handcuffing coupled with aggressive questioning is not sufficiently egregious]; Yanez-Marquez v. Lynch, 789
F.3d 434 (4th Cir. 2015) [joining the Second, Third and Eight Circuits the court took the “totality of the
circumstances approach” and not the more “alien-friendly” test of qualified immunity in the Ninth Circuit and
found that possible mistakes made by the officers in conducting the search as well as conducting a day-time
search at night in violation of the warrant was not egregious]; Chavez-Castillo v. Holder, 771 F.3d 1081 (8th
Cir. 2014) [allegation that police charged respondent with speeding as a pretext for racial stop was rejected];
Maldonado v. Holder, 763 F.3d 155, 159-63 (2d Cir. 2014) [suppression denied where nonegregious
violations in sting operation designed to pick up day laborers]; Lopez-Fernandez v. Holder, 735 F.3d 1043
(8th Cir. 2013) [where officers entered home on a tip and no excessive force on entry, circumstances were
not egregious]; Martinez-Carcamo v. Holder, 713 F.3d 916, 921-24 (8th Cir. 2013) [rejecting 9th Circuit “bad
faith” standard and finding that invasion of a home or a deliberate violation is not per se an egregious
violation]; Martinez-Medina v. Holder, 673 F.3d 1029 (9th Cir. 2011) [not egregious circumstances for county
deputy sheriff to detain Hispanics while immigration appeared even though there was no violation of state
law]; Luevano v. Holder, 660 F.3d 1207, 1211-13 (10th Cir. 2011) Page 456 [stop at sobriety checkpoint with
no evidence that stop was based upon race is not an egregious circumstance]; Garcia-Torres v. Holder, 660
F.3d 333, 336-37 and n.4 (8th Cir. 2011) [warrantless entry of business premises due to garden-variety error
is not egregious, nor would a bad-faith error be egregious if understood to mean a reasonable officer would
have acted otherwise]; Lopez-Gabriel v. Holder, 653 F.3d 683 (8th Cir. 2011) [no objective basis for claim that
petitioner was stopped due to race]; Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010) [lack of probable cause
to arrest in the absence of unreasonable force, arrests based on race or appearance, or other circumstances
does not constitute egregious circumstances]. See also U.S. v. Sanders, 743 F.3d 471, 473 (7th Cir. 2014) [in
sentencing case questioning whether there is an “egregious exception” in immigration proceedings].
For procedures governing motions to suppress in removal, see in this part, ¶ T.7.q (p.619), infra.
A local or state police officer, not acting under a Section 287(g) agreement, cannot conduct a civil
immigration seizure or arrest. Arizona v. U.S., 567 U.S. 387, 409-11 (2012) [“If the police stop someone
based on nothing more than possible removability, the usual predicate for an arrest is absent.”]. The Court
also recognized that “[d]etaining individuals solely to verify their immigration status would raise constitutional
concerns.” Id. at 2509. However, a question remains whether an illegal search by a state officer may
nevertheless be used in federal immigration proceedings. Lopez-Gabriel v. Holder, 653 F.3d 683, 686 (8th
Cir. 2011) [stating in dicta that it may be used by citing U.S. v. Janis, 428 U.S. 433 (1976)]. But see Lustig v.
U.S., 338 U.S. 74 (1949) [illegal evidence suppressed where there was a joint state/federal operation and
federal officer was sifting through the evidence].
A statement may also be suppressed if it was taken in circumstances that undermine its reliability. Singh v.
Mukasey, 553 F.3d 207, 214–16 (2d Cir. 2009) [all night questioning of LPR at Canadian border,
accompanied by pressure tactics, and failure to advise him of his rights created an unreliable statement that
must be suppressed]. Also, an improper arrest under INA §287(a)(2), 8 USC §1357(a)(2), raises “difficult
questions.” Westover v. Reno, 202 F.3d 475, 479–80 (1st Cir. 2000) [no right to suppress removal
proceedings but recognizing that whether evidence from an illegal arrest should be used is a more difficult
question under the statute]. But see Corado-Arriaza v. Lynch, 844 F.3d 74, 78-79 (2d Cir. 2016) [violation of 8
CFR §287.3(c) (requirement to provide Miranda warnings) and 8 CFR §287.8(b)(1) (right to question but not
arrest person) do not create any enforceable rights to suppress evidence]; Chuyon Yon Hong v. Mukasey,
518 F.3d 1030, 1034–36 (9th Cir. 2008) [where former corrupt INS official used respondent’s nonpublic
information to gain an advantage in plea bargaining, respondent claimed unsuccessfully that the use of the
information violated 5 CFR §2635.703(a)]; Melnitsenko v. Mukasey, 517 F.3d 42, 47–49 (2d Cir. 2008)
[denying motion to suppress because 3-hour detention, without Miranda or other warnings, after 4 or 5
uniformed officers escorted petitioner who was interrogated, fingerprinted and photographed was not
egregious under Lopez Mendoza]; Kandamar v. Gonzales, 464 F.3d 65, 70–74 (1st Cir. 2006) [denying
motion to suppress statements taken at the NSEERS interview as well as the improper seizure of passport];
Almeida-Amaral v. Gonzales, 461 F.3d 231, 234–37 (2d Cir. 2006) [stopping 17-year-old at gas station not
near the border was a violation of the Fourth Amendment but insufficient evidence that it was based solely
upon raceand was therefore not egregious]; Navarro-Chalan v. Ashcroft, 359 F.3d 19, 21–24 (1st Cir. 2004)
[where respondent answered questions including information for I-213 before arrest warrant was issued, he
could not suppress name, identity and other I-213 information; no egregious violation]. However, to have a
Fourth Amendment violation there must be a seizure. Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. 2008)
[brothers were not seized when plain-clothed immigration agents approached them as they stepped off the
plane and asked them if they were illegal without detaining them until they acknowledged their illegality].
Specificity—A motion to suppress must be very specific. There must be live testimony or a statement. Matter
of Barcenas, 19 I&N Dec. 609 (BIA 1988). There is no right to a separate suppression hearing. Matter of
Benitez, 19 I&N Dec. 173 (BIA 1984).
4. Statutory Basis for Suppression—Motions to suppress may be filed where there is a violation of INA
§287(a)(1) [improper interrogation where there was no reason to believe person was an alien who had no
right to be or remain in the U.S.] or INA §287(a)(2) [improper arrest where there is no reason to believe the
person is in the U.S. in violation of any law or regulation]. Westover v. Reno, 202 F.3d 475, 479–80 (1st Cir.
2000) [no right to suppress removal proceedings but recognizing Page 457 that whether evidence from an
illegal arrest should be used is a more difficult question under the statute]; Mountain High Knitting, Inc. v.
Reno, 51 F.3d 216, 217–19 (9th Cir. 1995) [where a person without green card is arrested then released
when status verified, arrest is illegal and use of INA §264(e) (not carrying green card), is pretextual]. But see
Yanez-Marquez v. Lynch, 789 F.3d 434, 474 (4th Cir. 2015) [failure to follow regulations at 8 CFR pt. 287 was
not a basis to suppress because they don’t create enforceable rights].
5. Administrative Exclusionary Rule—Where a regulation exists to benefit respondent is violated and the
respondent is harmed, the evidence is inadmissible. Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980).
Evidence may also be suppressed if it violates DHS procedures. Pieniazek v. Gonzales, 449 F.3d 792 (7th
Cir. 2006) [remanding to BIA where respondent claimed he was deprived of opportunity to seek suppression
of evidence based on the AG’s Guidelines for Undercover Operations]. But see Corado-Arriaza v. Lynch, 844
F.3d 74, 78-79 (2d Cir. 2016) [violation of 8 CFR §287.3(c) (requirement to provide Miranda warnings) and 8
CFR §287.8(b)(1) (right to question but not arrest person) do not create any enforceable rights to suppress
evidence]; Aparicio-Brito v. Lynch, 824 F.3d 674, 683 (7th Cir. 2016) [right to warning against self-
incrimination under 8 CFR §287.3 does not arise until NTA issued and therefore statements on I-213 can be
used against petitioner]; Gonzaga-Ortega v. Holder, 736 F.3d 795 (9th Cir. 2013) [rejected motion to suppress
statements by returning LPR treated as an arriving alien who was denied counsel at a secondary inspection
because an arriving alien had no right to counsel at secondary inspection]; Krasilych v. Holder, 583 F.3d 962,
966–67 (7th Cir. 2009) [rejecting claim that Pieniazek permits suppression and holding that AG guidelines are
not enforceable and even if they were could not lead to suppression of evidence]; Samayoa-Martinez v.
Holder, 558 F.3d 897, 901–03 (9th Cir. 2009) [rights under 8 CFR §287.3 do not arise until NTA is issued; I-
213 taken while petitioner was in custody but before issuance of NTA does not violate regulation; Matter of
Garcia-Flores distinguished as arising under prior rule]; Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA
2011) [Under 8 CFR §287.3(c) the “initiation of formal proceedings” (filing of NTA) [is] “a necessary
precondition to the mandatory issuance of the advisals” and where I-213 was taken before the filing of the
NTA statement may not be suppressed]; But see De Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th
Cir. 2008) [reversing IJ finding that §287.3 did not apply where respondent was arrested by border patrol;
court remanded with suggestion to issue precedent decision]. See also in this section “Miranda warnings not
required,” ¶ 5.f (p.450), supra.
6. Suppression is also possible under the administrative exclusionary rule of the BIA, Matter of Garcia-Flores,
17 I&N Dec. 325 (BIA 1980) where DHS violates regulations promulgated for the noncitizen’s benefit, and the
noncitizen suffers prejudice. See e.g., 8 CFR §§287.3(a), 287.8(a)-(c); Sanchez v. Sessions, 870 F.3d 901,
912-13 (9th Cir. 2017) [where the Coast Guard violated 8 CFR §287.8(b)(2) regarding the right to detain only
if there is reasonable suspicion based upon specific articulable facts, the court terminated removal
proceedings because the regulation serves a purpose/benefit to the noncitizen and the noncitizen was
prejudiced by the violation]. But see 8 CFR §287.12Maldonado v. Holder, 763 F.3d 155, 161-63 (2d Cir. 2014)
[nonegregious violations of internal agency regulations such as 8 CFR §§287.8(b), (c) are not basis to
terminate proceedings]; Rajah v. Mukasey, 544 F.3d 427, 443–48 (2d Cir. 2008) [pretrial regulatory violations
of 8 CFR §287.3 and 8 CFR §287.8 cannot result in suppression of evidence or termination of proceedings
where violations were harmless and nonegregious].
7. Suppression Possible under Fifth Amendment—Matter of Garcia-Flores, 17 I&N Dec. 319 (BIA 1980);
Matter of Toro, 17 I&N Dec. 340 (BIA 1980). A coerced confession is suppressible. Navia-Duran v. INS, 568
F.2d 803 (1st Cir. 1977); Bong Youn Choy v. Barber, 279 F.2d 642 (9th Cir. 1960). Also, evidence derived
from illegal electronic surveillance may be suppressed. 18 USC §3504(a); Matter of Hemblen, 14 I&N Dec.
739 (BIA 1974). Review of the denial of disclosure of electronic surveillance information lies with the court of
appeals in a review of a final order of deportation. U.S. v. Hamide, 914 F.2d 1147, 1152–53 (9th Cir. 1990).
But see Ali v. Gonzales, 440 F.3d 678, 681–82 (5th Cir. 2006) [even if NSEERS violated equal protection,
exclusionary rule does not apply]; Calla-Collado v. U.S. Att’y Gen., 663 F.3d 680, 684 (3d Cir. 2011) [declining
to allow suppression based upon a violation of N.J. Attorney General Directive 2007-3 when police
questioned petitioner and contacted ICE outside of the booking process]. Page 458
8. First Amendment—Suppression under the First Amendment has been rejected in the context of an
employer engaging in unfair labor practices to obtain DHS’s intervention in a labor dispute. Montero v. INS,
124 F.3d 381, 386 (2d Cir. 1997). But the USCIS’s general policy is not to arrest undocumented workers
while on the picket line (Special Agent Field Manual, §33.14(h)) and to avoid involvement in labor disputes.
Memo, Aleinikoff and Slattery, HQ, INV 50/1.1.2-P (Dec. 20, 1996), reprinted in 74 No. 4 Interpreter Releases
188, 189–201 (Jan. 27, 1997); Matter of Herrera-Priego (EOIR, Lamb, IJ, New York July 10, 2003), reported
in 8 Bender’s Immigr. Bull. 1887 (Dec. 15, 2003) [IJ terminated proceedings where INS issued NTA during
labor dispute]. See also Matter of ___(EOIR, Phan-Quang Tue, IJ, San Francisco, Apr. 20, 2010) [relying on
OI 287.3a which establishes procedures for ICE officers to prevent them from becoming involved in labor
disputes as establishing, with other documents, a prima facie case for suppression].
9. State/Local Police—U.S. v. Argueta-Mejia, 166 F.Supp.3d 1216, 1222-29 (D. Colo. 2014), aff’d, 615 F.App’x
485 (10th Cir. 2015) [in illegal reentry case motion to suppress granted where local police officer had no
authority to arrest defendant for an immigration violation and court rejected INA §287(g)(10) argument].
10. Vienna Convention—Suppression of statements in forfeiture or otherwise are not granted even where
there was a violation of the Vienna Convention on Consular Relations for failure to notify the noncitizen of his
right to communicate with his embassy. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) [in criminal
proceeding, suppression is not appropriate for an Article 36 violation and regular state rules of procedural
default apply to bar Article 36 claims]. For a further discussion of the Vienna Convention see in this part
“Right to Communicate with Embassy,” ¶ T.7.kk (p.683), infra.
11. Delay—A statement may be suppressed if there was substantial delay between the time of arrest, the time
the statement was taken, and the time the person was taken before a magistrate to be charged. U.S. v.
Superville, 40 F.Supp.2d 672, 680–90 (D.V.I. 1999) [where INS took person into custody, questioned him a
second time 8 days later, and did not bring him before a judge for another week, the delay violated Fed. R.
Crim. P. 5(a), the McNabb-Mallory rule, and 18 USC §3501(c) and the statement was suppressed].
12. Indirect Fruit—Evidence of the indirect fruit of the unlawful action is also suppressible. Wong Sun v. U.S.,
371 U.S. 471, 484 (1963) [“The exclusionary prohibition extends as well to the indirect … products of such
invasions”]. The “exclusionary sanctions applies to any ‘fruits’ of a constitutional violation—whether such
evidence be tangible, physical material actually seized in an illegal search, items observed or words
overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during
an illegal arrest and detention.” U.S. v. Crews, 445 U.S. 463, 470 (1980). See also U.S. v. Juarez-Torres, 441
F.Supp.2d 1108, 1121–23 (D.N.M. 2006) [where vehicle stop 250 miles from border was unconstitutional,
court suppressed defendant’s A-file, fingerprints, evidence of identity, and all statements and observations];
U.S. v. Khan, 324 F.Supp.2d 1177, 1186–87 (D. Colo. 2004) [where officers had reason to believe that LPR
was in U.S. unlawfully because he procured his residency by fraud, but did not have reasonable grounds to
believe he would flee, arrest was unlawful and his subsequent Mirandized statements were suppressed]. But
see Garcia-Aguilar v. Lynch, 806 F.3d 671 (1st Cir. 2015) [reading Wong Sun to require suppression only
where government sought to exploit the illegality of its conduct and not permitting suppression of
respondent’s birth certificate submitted by Mexican consulate under simply a “but for” test].The commonly
addressed exceptions to the rule are that: (a) the evidence was obtained from an independent source; (b) its
discovery was inevitable; (c) it’s identity evidence; (d) the events between the unlawful activity and the
information sought to be used were sufficiently attenuated. Vanegas-Ramirez v. Holder, 768 F.3d 226, 233-37
(2d Cir. 2014) [despite assumption that respondent was subject to egregious constitutional violation
permitting suppression under the Fourth Amendment, the respondent’s decision to voluntarily concede
removability because he believed it would increase his chances of obtaining a change of venue was an
independent source of information that could be used]; U.S. v. Aragon-Ruiz, 551 F.Supp.2d 904, 914 (D.
Minn. 2008) [initial statements were suppressed where numerous officers surrounded home, but later
statements given after defendant placed in van were not suppressed because there was no trickery and
Miranda warnings were Page 459 provided]; Calla-Collado v. U.S. Att’y Gen., 663 F.3d 680, 684 (3d Cir.
2011) [declining to allow suppression in removal proceedings based upon a violation of New Jersey Attorney
General Directive 2007-3 when police questioned petitioner and contacted ICE outside of the booking
process].
13. Improper Use of Administrative Warrant—Documents and statements may also be suppressed where
there is a “deliberate use by the Government of an administrative warrant for the purpose of gathering
evidence in a criminal case,” Abel v. U.S., 362 U.S. 217, 226–29 (1960) [although the Court found no
violation, using the INS administrative process to gather evidence for a criminal proceeding “to circumvent
the latter’s legal restrictions” would violate the Fourth and Fifth Amendments].
14. Improper Use of Civil Proceeding to Obtain Criminal Indictment—Evidence will be suppressed or an
indictment may be dismissed where the government intentionally misleads the respondent into believing the
proceeding is only civil when its real intention is to bring criminal proceedings. U.S. v. Tweel, 550 F.2d 297
(5th Cir. 1977) [evidence suppressed where taxpayer’s accountant asked if a special agent was involved
thereby signaling a criminal investigation and he was deceptively told no]. But see U.S. v. Boskic, 545 F.3d 69
(1st Cir. 2008) [defendant’s 5th and 6th Amend rights not violated in prosecution under 18 USC §1546 for
making false statements on refugee application abroad and on I-485, where Joint Terrorism Task Force
staged interview on defendant’s request for a travel document with knowledge that he had lied on his original
applications]; U.S. v. Posada Carriles, 541 F.3d 344 (5th Cir. 2008) [reversing dismissal of indictment and
suppression of evidence because applicant initiated civil process by seeking naturalization, was advised of
5th Amend right and that there may be criminal consequences, and the proceeding and questions were not
anomalous given the circumstances]. See also U.S. v. Kordel, 397 U.S. 1 (1970) [government may
simultaneously conduct civil and criminal proceedings but there are limitations]; U.S. v. Lopez-Garcia, 565
F.3d 1306, 1317 (11th Cir. 2009) [denying suppression on Fifth Amendment grounds of un-Mirandized
statement taken by ICE agent of person detained in prison to determine immigration status that was
subsequently used to bring criminal “found in” charge]; U.S. v. Harder, 180 F.Supp.3d 355 (E.D. Pa. 2016)
[interrogation at secondary inspection of returning Russian LPR that led to indictment without providing
Miranda warnings was permissible because defendant was not in “custody” and interrogation did not cross
the line although they “furthered the instant prosecution” by asking about money laundering and his
involvement in various offenses]; U.S. v. Clarke, 628 F.Supp.2d 1, 6–8 (D.D.C. 2009) [it was not a conflict for
U.S. Attorney to proceed simultaneously on a civil revocation of naturalization and a criminal case based
upon the naturalization]; Memo, Forman, Director, Office of Investigations, ICE, “Worksite Enforcement
Strategy” (Apr. 30, 2009), AILA Doc. No. 09100572 [explicitly stating that in worksite enforcement cases “ICE
offices should use administrative tools to advance criminal cases”].
15. Suppression of the Alien File—Some courts have held that an alien (“A”) file may not be suppressed even
if there was an illegal arrest because there is no legitimate expectation of privacy in the file and therefore no
standing to challenge its introduction into evidence. U.S. v. Herrera-Ochoa, 245 F.3d 495, 498 (5th Cir. 2001).
See also U.S. v. Lopez-Garcia, 565 F.3d 1306, 1319–20 (11th Cir. 2009) [under Hudson v. Michigan 547 U.S.
586 (2006) a cost-benefit balancing test provides that A files should not be suppressed]; U.S. v. Farias-
Gonzalez, 556 F.3d 1181, 1189–90 (11th Cir. 2009) [where agency knows alien’s identity A-file should not be
suppressed]; Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir. 1978) [where illegal arrest leads to person’s
identity and then to official file, no sanction should be applied]. Other courts have held that A-files and other
government files may be suppressed under some circumstances. U.S. v. Oscar-Torres, 507 F.3d 224, 226,
232 (4th Cir. 2007) [“fingerprint evidence and the records obtained through it” must be suppressed if “officers
were motivated by an investigative purpose”]; U.S. v. Olivares-Rangel, 458 F.3d 1104, 1116-17 (10th Cir.
2006) [defendant had standing to suppress his A-file because “the relevant inquiry in determining whether a
defendant has standing to challenge evidence as fruit of a poisonous tree is whether his or her Fourth
Amendment rights were violated, not the defendant’s reasonable expectation of privacy in the evidence
alleged to be poisonous fruit”]; U.S. v. Garcia-Beltran, 389 F.3d 864 , 865 (9th Cir. 2004) [if defendant’s
“fingerprints were taken for an ‘investigatory’ purpose, i.e., to connect [him] to alleged criminal activity, then
the fingerprint exemplars should be suppressed”]; U.S. v. Guevara-Martinez, 262 F.3d 751, 752, 755-56 (8th
Cir. 2001) [affirming suppression of defendant’s “INS file” which agents obtained using his fingerprints]; see
also Pretzantzin v. Holder, 736 F.3d 641, 651-51 (2d Cir. 2013) Page 460 [government failed to meet its
burden of proving that it obtained respondents’ foreign birth certificate and municipal transit police
department arrest records independently of unlawful arrest].
16. Suppression of Identity—Based upon Lopez-Mendoza’s statement that: “[t]he ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful
arrest,” 468 U.S. at 1039, lower courts are split on whether a person’s identity or identity-related evidence
can ever be suppressed. CompareU.S. v. Hernandez-Mandujano, 721 F.3d 345, 351 (5th Cir. 2013)
[although agents “clearly violated the Fourth Amendment in stopping [defendant],” his admission that he was
a Mexican citizen was “identity” evidence that cannot be suppressed] withPretzantzin v. Holder, 736 F.3d
641, 647-50 (2d Cir. 2013)[Lopez-Mendoza merely states traditional rule that an unlawful arrest does not
destroy the court’s personal jurisdiction over the defendant’s body]; U.S. v. Oscar-Torres, 507 F.3d 224, 228-
29 (4th Cir. 2007) [same]; U.S. v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006) [same]; U.S. v.
Guevara-Martinez, 262 F.3d 751, 754-55 (8th Cir. 2001) [same]. See also U.S. v. Chagoya-Morales, 859 F.3d
411, 417-21 (7th Cir. 2017) [on the facts of case, the suppression of identity would not be appropriate given
the heavy social costs of suppressing identity]; U.S. v. Farias-Gonzalez, 556 F.3d 1181, 1187 (11th Cir. 2009)
[same].
17. Suppression and Admission—Even if evidence could be suppressed, the person’s admission of alienage
and the other elements of a removal charge at the IJ hearing nullifies any claim to suppression. Miguel v.
INS, 359 F.3d 408 (6th Cir. 2004). See also Matter of Cervantes-Torres, 21 I&N Dec. 351 (BIA 1996). But with
the exception of asylum applications, applications for relief made during the removal proceeding may not be
used to prove alienage or deportability. 8 CFR §1240.11(e); Matter of Bulos, 15 I&N Dec. 645 (BIA 1976)
[disapproving of use of VD testimony to prove deportability]. For a more detailed discussion of the assertion
of Fifth Amendment rights in a removal proceeding, see in this section “Privilege Against Self-Incrimination,”
¶T.7.r (p.619), infra.
18. Civil Tort Claims—The exclusionary rule, and therefore suppression of evidence, may not be applicable to
FTCA claims. Vargas Ramirez v. U.S., 93 F.Supp.3d 1207, 1229-31 (W.D. Wash. 2015) [rejected “fruit of the
poisonous tree” doctrine advanced to defeat lawful arrest by Border Patrol stemming from unlawful detention
and arrest by state police officer].
G. Encounters/Interrogation
1. Initial Determination—To determine the validity of an interrogation, court must first determine if it was a stop
or a seizure. Standard to determine if action was a seizure is whether a “reasonable person would have
believed he was free to leave.” U.S. v. Mendenhall, 446 U.S. 544 (1980); INS v. Delgado, 466 U.S. 210
(1984); Oliva-Ramos v. U.S. Att’y Gen., 694 F.3d 259, 283-85 (3d Cir. 2012) [incorporated standards in
Mendenhall to 8 CFR §287.8(b)(1) and reversed BIA decision that respondent had not been seized]; U.S. v.
Alarcon-Gonzalez, 73 F.3d 289 (10th Cir. 1996) [police officer yelling “freeze” turns stop into seizure]; U.S. v.
Alvarez-Sanchez, 774 F.2d 1036 (11th Cir. 1985); Martinez v. Nygaard, 820 F.2d 1024 (9th Cir. 1987),
superseded by 831 F.2d 822 (9th Cir. 1987); Pearl Meadows Mushroom Farm, Inc. v. Nelson, 723 F.Supp.
432, 447–48 (N.D. Cal. 1989).This standard is reflected in 8 CFR §287.8(b); Sanchez v. Sessions, 870 F.3d
901, 912-13 (9th Cir. 2017) [where the Coast Guard violated 8 CFR §287.8(b)(2) regarding the right to detain
only if there is reasonable suspicion based upon specific articulable facts, the court terminated removal
proceedings because the regulation serves a purpose/benefit to the noncitizen and the noncitizen was
prejudiced by the violation]. But see Florida v. Bostick, 501 U.S. 429, 435-37 (1991) [issue is not necessarily
whether person on a bus felt that he was free to leave but rather “whether a reasonable person would feel
free to decline the officers’ requests or otherwise terminate the encounter”]; Muehler v. Mena, 544 U.S. 93,
100-01 (2005) [where defendant stopped for another purpose additional questioning directed toward the
person’s immigration status does not violate the Fourth Amendment unless the detention was prolonged by
the questioning]; U.S. v. Harrell, 894 F.2d 120 (5th Cir. 1990) [questioning by INS agents for one hour at
airport checkpoint behind glass wall not a custodial interrogation when information gained in first few
minutes]. If a person voluntarily stops, there is no seizure. U.S. v. Al Nasser, 555 F.3d 722 (9th Cir. 2009)
[where border patrol agent shined flashlight into car and person stopped without request to do so, the
voluntary stop could not be considered a seizure]. Department of Justice guidance prohibits the use of racial,
ethnic, gender, national origin, religious, sexual orientation or Page 461 gender identity profiling by all federal
officers in making routine or spontaneous law enforcement decisions. DOJ, Guidance for Federal Law
Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual
Orientation, or Gender Identity (Dec. 2014), AILA Doc. No. 14121040.
2. Stops—For a stop, an officer needs reasonable suspicion based on specific articulable facts; probable cause
is not necessary. Terry v. Ohio, 392 U.S. 1 (1968). Neither the actual motivation of the officer, nor a
determination of whether a stop would have occurred under “normal circumstances” is relevant. Whren v.
U.S., 517 U.S. 806, 812-16 (1997); cf. U.S. v. Lopez-Moreno, 420 F.3d 420, 432 (5th Cir. 2005) [under Terry
even if an officer’s subjective motivation for initiating a traffic stop was wrong because the defendant did not
violate the statute, the constitutionality of the stop would be upheld if defendant was objectively committing a
different traffic offense]. Whether the stop was justified depends on the “totality of the circumstances”
confronting the officer. U.S. v. Arvizu, 534 U.S. 266 (2002) [reversing court of appeals when it sought to
analyze each factor to determine whether there was an innocent explanation rather than looking at the totality
of the circumstances]; U.S. v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) [listing factors to establish
articulable facts]; U.S. v. Cortez, 449 U.S. 411, 418 (1981); see also U.S. v. Montero-Camargo, 208 F.3d 1132
(9th Cir. 2000) [“Hispanic appearance is not, in general, an appropriate factor” for Border Patrol agents to
consider as part of the reasonable suspicion analysis where a large part of the local population is
Hispanic].Immigration officers have the right to stop and question a person “only for the purpose of
determining whether he or she has a right to be or remain in the U.S.” Lau v. INS, 445 F.2d 217 (D.C. Cir.
1971); INA §287(a), 8 USC §1357(a). However, even this “statutory provision is limited by the Fourth
Amendment.” Murillo v. Musegades, 809 F.Supp. 487, 498 (W.D. Tex. 1992). A routine traffic stop is a seizure
under the Fourth Amendment. U.S. v. Baron-Cabrera, 119 F.3d 1454, 1458 (10th Cir. 1997) [although it is a
seizure, it doesn’t require probable cause; it is investigatory detention requiring only reasonable suspicion].
But where the encounter is consensual there is no seizure and the Fourth Amendment does not bar inquiry
as to alienage without reasonable suspicion. U.S. v. Moya-Matute, 735 F.Supp.2d 1306, 1340-45 (D.N.M.
2008) [denying suppression where petitioner consented to encounter voluntarily answering question “Where
are your papers?”]; 8 CFR §287.8 [“An immigration officer, like any other person, has the right to ask
questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not
under arrest, to walk away.”].
ICE must have reasonable suspicion based upon articulable facts that the individual questioned is a
removable noncitizen unless consent is given by the person whom the officer seeks to question. Matter of
King & Yang, 16 I&N Dec. 502 (BIA 1978) [Asian appearance, history of illegal employment, plus anonymous
tip deemed sufficient for nondetentive questioning]; U.S. v. Rodriguez, 976 F.2d 592 (9th Cir. 1992). See also
8 CFR §287.8(b)(2); Sanchez v. Sessions, 870 F.3d 901, 912-13 (9th Cir. 2017) [where the Coast Guard
violated 8 CFR §287.8(b)(2) regarding the right to detain only if there is reasonable suspicion based upon
specific articulable facts, the court terminated removal proceedings because the regulation serves a
purpose/benefit to the noncitizen and the noncitizen was prejudiced by the violation when he was seized
solely because of his Hispanic ethnicity]. Race or alienage alone is insufficient to establish the “specifically
articulable facts together with rational inferences from those facts” that suggest an individual is a removable
noncitizen, Brignoni-Ponce, supra notwithstanding DHS’s broad authority under 8 USC §1357(a)(1).
However, where there is reasonable suspicion to stop someone for a separate lawful reason (e.g., the person
was speeding) or detain them pursuant to a valid warrant, the mere questioning of the individual about his
immigration status does not, in and of itself, create a separate event requiring probable cause and such
questions do not constitute a Fourth Amendment violation unless they prolong the stop. Muehler v. Mena,
544 U.S. 93, 100–01 (2005) [officer did not need independent reasonable suspicion to ask the respondent
her name, date and place of birth and immigration status where such questions did not prolong an otherwise
valid detention]; U.S. v. Guijon-Ortiz, 660 F.3d 757, 769 (4th Cir. 2011) [where stop was for driving but no
ticket was issued and the officer learned there was no outstanding warrant, it was not a violation of the 4th
amendment to take LPR card and verify it with ICE although “the officer’s call to ICE was unrelated to the
justification for the stop and exceeded the time during which the officer kept the vehicle at the side of the
highway”]; U.S. v. Quintana, 623 F.3d 1237 (8th Cir. 2010) [defendant had probable cause to believe person
was not validly in the U.S. and therefore had authority, after contacting border patrol, to make a warrantless
Page 462 arrest where there was a valid traffic stop and defendant could not confirm his legal entry into the
U.S. and agent’s immigration checks produced no information]; U.S. v. Torres-Monje, 433 F.Supp.2d 1028,
1032–34 (D.N.D. 2006) [where officer stopped vehicle for traffic violation, no Fourth Amendment violation to
ask about driver and passenger’s immigration status]. Nor is the Fourth Amendment violated and a stop
illegal because ICE violates its own internal policies (of requiring prior authorization) or because New York
law was violated where probable cause existed for the stop. U.S. v. Wilson, 699 F.3d 235 (2d Cir. 2012)
2.a. No Reasonable Suspicion to Stop Found
U.S. v. Hernandez-Mandujano, 721 F.3d 345 (5th Cir. 2013) [Border Patrol agent did not have reasonable
suspicion where stop occurred on a smuggling corridor 450 miles from the border and where drive slowed
down, stopped talking with passenger, failed to make eye contact, and did not have relaxed posture]; U.S.
v. De La Cruz, 703 F.3d 1193 (10th Cir. 2013) [where ICE agents initially stopped car-wash employee as
he arrived at work because they mistook him for a coworker for whom they were searching and continued
to detain him after realizing they had misidentified him, they lacked reasonable suspicion to continue the
stop]; U.S. v. Olivares-Pacheco, 633 F.3d 399 (5th Cir. 2011) [stop made more than 200 miles from the
border was not reasonable based upon brush under truck, passenger pointing to open field, truck
registration in Dallas-Ft. Worth, and notoriety of I-20 corridor]; U.S. v. Rangel-Portillo, 586 F.3d 376 (5th
Cir. 2009) [agent’s stop of vehicle 500 yards from the border was not reasonable under totality of the
circumstances]; U.S. v. Espinoza, 490 F.3d 41, 46–48 (1st Cir. 2007) [where ICE agent observed nothing
unusual or unlawful about a van’s operation during his surveillance and where Boston was not a place
generally associated with alien smuggling, his observation that the van had a Texas license plate, that it
was registered in the name of someone in a previous investigation for smuggling and that there were 2 or
3 similar passenger vans used for smuggling in the past year were insufficient for reasonable suspicion];
U.S. v. Manzo-Jurado, 457 F.3d 928 (9th Cir. 2006) [reversing conviction for misuse of Social Security
number where information was obtained through an illegal seizure based on officer’s observation that
Hispanic-looking men appeared to be a work crew and appeared out of place at a football game where
they calmly conversed in Spanish]; U.S. v. Sigmond-Ballesteros, 285 F.3d 1117 (9th Cir. 2002) [reversing
denial of motion to suppress where defendant pulled off the road, obscured his face from the officer’s
shining light, was driving on a route notorious for alien smuggling in a pickup truck typically used for
smuggling without a back seat, was driving at 4:20am when the route was normally used for commercial
traffic and was on a route to the border but not near the border]; U.S. v. Lopez-Valdez, 178 F.3d 282 (5th
Cir. 1999) [reversing denial of suppression motion notwithstanding vehicle’s proximity to border, numerous
passengers in the vehicle, and the road the vehicle was traveling on could be used to circumvent an
immigration checkpoint]; U.S. v. Rodriguez-Rivas, 151 F.3d 377 (5th Cir. 1998) [reversing denial of
suppression motion where vehicle stopped by border patrol because it had no front license plate]; U.S. v.
Jones, 149 F.3d 364 (5th Cir. 1998) [reversing finding of reasonable cause and finding stop of vehicle
unconstitutional under totality of circumstances]; Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994)
[Border Patrol agent did not have reasonable suspicion based on driver’s failure to make eye contact, dry
mouth, and Hispanic appearance]; Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976),
modified, 548 F.2d 715 (7th Cir. 1977); U.S. v. McDaniel, 463 F.2d 129 (5th Cir. 1972); Nicacio v. INS, 797
F.2d 700 (9th Cir. 1985) [Mexican or Latin appearance alone are insufficient. “Articulable facts” forming the
basis of reasonable suspicion are “measured against an objective reasonable man standard, not by the
subjective impressions of a particular officer”]; U.S. v. Aguilera, 279 F.Supp.3d 1095 (S.D. Cal. 2017)
[under totality of evidence Border Patrol did not have individualized suspicion notwithstanding inter alia
that the vehicle was seen leaving a suspected alien smuggling stash house and the vehicle was traveling
a known smuggling route at a high speed]; U.S. v. Pacheco-Alvarez, 227 F.Supp.3d 863, 880-86 (S.D.
Ohio 2016) [suppressing any statements regarding defendant’s citizenship and immigration status
notwithstanding the lawfulness of the traffic stop because he was questioned without Miranda warnings];
U.S. v. Argueta-Mejia, 166 F.Supp.3d 1216, 1222-29 (D. Colo. 2014), aff’d, 615 F.App’x 485 (10th Cir.
2015) [motion to Page 463 suppress granted where local police officer had no authority to arrest
defendant for an immigration violation and court rejected INA §287(g)(10) argument]; U.S. v. Vega, 99
F.Supp.3d 644 (M.D. La. 2015) [when stop was based on Hispanic appearance it is impermissible despite
other more compelling factors]; U.S. v. Canales-Rosales, 67 F.Supp.3d 791 (S.D. Tex. 2014) [Suburban
with tinted windows and heavily laden but 150 miles from the border with no other indicia]; U.S. v.
Hernandez-Lopez, 761 F.Supp.2d 1172 (D.N.M. 2010) [where Dodge was not overloaded, not a vehicle
smugglers typically use, had no hidden compartments and was typical of the traffic on I-25, the failure to
wave to officer, the swerving away from the officer who was behind him and other reasons were
insufficient]; U.S. v. Morales-Rosales, 698 F.Supp.2d 716 (E.D. Tex. 2010) [van far from the border, with
tinted windows, heavily laden, but no other unusual characteristics is not enough for reasonable suspicion
under totality of the circumstances]; U.S. v. Alvarado, 635 F.Supp.2d 586 (W.D. Tex. 2009) [vehicle 170
miles from border; Border Patrol officers said the people in car were “stoic” and nervous and car riding
low]; U.S. v. Varela-Delgado, 547 F.Supp.2d 704, 712–14 (W.D. Tex. 2008) [defendant left her house in
area where there was no known smuggling activity and she had not violated any traffic law, no reasonable
suspicion for stop]; U.S. v. Juarez-Torres, 441 F.Supp.2d 1108 (D.N.M. 2006) [insufficient factual basis to
stop vehicle 250 miles from border under totality of circumstances]; U.S. v. Ross, 400 F.Supp.2d 939,
945–47 (W.D. Tex. 2005) [no reasonable suspicion to stop Jeep, but reasonable suspicion to stop another
car that appeared to be with it]; U.S. v. Olivares-Rangel, 324 F.Supp.2d 1218 (D.N.M. 2004) [when agent
blocked car, seizure took place without probable cause or reasonable suspicion]; U.S. v. Mendoza-
Carrillo, 107 F.Supp.2d 1098 (D.S.D. 2000) [no probable cause to detain passenger in car after
processing driver for traffic violation without reasonable, articulable suspicion of criminal activity]; U.S. v.
Lopez-Valdez, 102 F.Supp.2d 728 (W.D. Tex. 2000) [anonymous tip insufficient basis for investigative
stop]; U.S. v. Alvarado-Ramirez, 975 F.Supp. 906 (W.D. Tex. 1997) [no probable cause or reasonable
suspicion to stop]; U.S. v. Covarrubia, 911 F.Supp. 1409 (D.N.M. 1994) [no reasonable suspicion where
officer listed factors but could not demonstrate how they related to his experience in fighting transportation
of illegal aliens]; Murillo v. Musegades, 809 F.Supp. 487, 498–99 (W.D. Tex. 1992) [failure to answer INS
officer’s questions or refusal to cooperate cannot form basis for probable cause or reasonable suspicion];
U.S. v. Ramos, 753 F.Supp. 75 (W.D.N.Y. 1990) [Hispanic appearance alone insufficient]; Ramirez v.
Webb, 719 F.Supp. 610 (W.D. Mich. 1989) [INS illegally detained and used excessive force against USCs
based on Hispanic appearance]; McElrath v. Goodwin, 713 F.Supp. 299, 303 n.3 (E.D. Ark. 1988). The
objective reasonableness standard is applied in the context of what inferences a trained DHS officer might
reasonably draw, rather than inferences that might be drawn by a lay person. U.S. v. Cortez, 449 U.S. 411
(1981); U.S. v. Sokolow, 490 U.S. 1 (1989). The standard is equally applicable to state officers seeking to
enforce immigration. Farm Labor Organizing Comm. v. Ohio Hwy. Patrol, 991 F.Supp. 895 (N.D. Ohio
1997), rev’d in part, 308 F.3d 523 (6th Cir. 2002) [enjoining state police from questioning motorists about
their immigration status without reasonable suspicion based on articulable facts].
2.b. Reasonable Suspicion to Stop Found
U.S. v. Wise, 877 F.3d 209 (5th Cir. 2017) [a “bus interdiction” or “bus boarding” is not per se an
unconstitutional checkpoint because as the court recognized “[d]uring the interdiction, passengers may
leave the bus. They may also refuse to speak with officers”]; Muniz-Muniz v. U.S. Border Patrol, 869 F.3d
442 (6th Cir. 2017) [plaintiffs organizations representing migrant farmworkers could not prove that Borer
Patrol at Sandusky Bay, Ohio had a policy of targeting persons based on their Hispanic appearance as:
(1) there was no official policy; (2) there was no policy based upon inadequate training or supervision; (3)
no official with final decision-making authority ratified an illegal actions based upon Hispanic appearance;
and (4) the agency did not have an informal custom or policy of tolerating violations of federal law]; U.S. v.
Ramirez, 839 F.3d 437 (5th Cir. 2016) [reasonable suspicion where agent experienced in patrolling the
area, truck was 45 miles north of the border which was well south of the checkpoint, passengers were
behaving unusual, and the vehicle was typical of a smuggling vehicle]; U.S. v. Compton, 830 F.3d 55 (2d
Cir. 2016) [where vehicle was in close proximity to the Canadian border Page 464 and avoided an
immigration checkpoint by veering abruptly while motorist and defendant sought to conceal the avoidance,
there was reasonable suspicion for a Terry stop]; U.S. v. Cervantes, 797 F.3d 326 (5th Cir. 2015) [although
facts in case were strikingly similar to Olivares-Pacheco where there court found there was not
reasonable suspicion, here there were some additional facts, e.g., the driver changed lanes and
deaccelerated, the rear passengers wore jackets, the vehicle was riding low and the agents honked at the
driver who failed to acknowledge them, thus warranting a finding of reasonable suspicion]; U.S. v. Valdes-
Vega, 738 F.3d 1074 (9th Cir. 2013) (en banc) [under the totality of the circumstances experienced Border
Patrol agents did have reasonable suspicion to believe that a person driving a large truck “erratically” with
Mexican license plates at northern most checkpoint (70 miles from the border), on route commonly used
by smugglers was engaged in wrongdoing]; U.S. v. Garza, 727 F.3d 436 (5th Cir. 2013) [truck 5 miles from
the border on a well-known smuggling route where experienced agent knew the truck looked like
smuggler’s vehicle]; U.S. v. Rico-Soto, 690 F.3d 376 (5th Cir. 2012) [despite stop more than 50 miles from
Mexican border, there was reasonable suspicion where 15-passenger van with writing that alerted officers
based upon intel was traveling on Interstate 10, which is a major corridor for alien smuggling]; U.S. v.
Soto, 649 F.3d 406 (5th Cir. 2011) [although car was driving beyond 50 miles from border, court found
stop reasonable based solely on passenger ducking down upon seeing officers and driver tapping her
fingers excessively on steering wheel]; U.S. v. Palos-Marquez, 591 F.3d 1272 (9th Cir. 2010) [in person tip
by unidentified informant who was UPS driver provided sufficient reasonable suspicion given totality of
circumstances to warrant stop]; U.S. v. Guzman-Padilla, 573 F.3d 865, 878–82 (9th Cir. 2009) [in an
intrusive search or an extended border search, the government must demonstrate, as it did here, that the
officer was “reasonably certain” that the contraband in the vehicle was in the vehicle at the time it crossed
the border and that there was “reasonable suspicion” for the stop]; U.S. v. Bautista-Silva, 567 F.3d 1266
(11th Cir. 2009) [reversing district court for taking each factor in isolation rather than viewing totality of the
circumstances]; U.S. v. Rodriguez, 564 F.3d 735 (5th Cir. 2009) [on totality of the circumstances, border
patrol had reasonable suspicion to stop car where there was a BOLO report, defendant was driving
erratically, the road was recognized as a smuggling corridor, and the officer had substantial experience];
U.S. v. Silveus, 542 F.3d 993, 998–1002 (3d Cir. 2008) [probable cause where ICE agents received a tip
they knew was accurate; where they knew petitioner’s codefendant was a fugitive; and knew about her
close relationship to him]; U.S. v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007) [reasonable suspicion
where officers narrowed their suspicion through deduction as to the location of the pickup of
undocumented aliens and made reasonable factual inferences based on their experience regarding
smuggling activities in the area]; U.S. v. Hernandez, 477 F.3d 210 (5th Cir. 2007) [reasonable suspicion
where events were close to the border, it was a notorious smuggling route, and the anonymous tip was
not bare]; U.S. v. Doe, 701 F.2d 819 (9th Cir. 1983) [vehicle found in an area normally used to avoid
checkpoints; when car was driving south it was riding high, but it was heavily laden when returning]. See
also U.S. v. Cheromiah, 455 F.3d 1216 (10th Cir. 2006) [roving patrol had reasonable suspicion under
totality of the circumstances and acted within permissible scope of the stop when he opened the side door
even after ascertaining that the 4 occupants were USCs]; U.S. v. Singh, 415 F.3d 288 (2d Cir. 2005)
[based on totality of the circumstances, border patrol had reasonable suspicion to stop NYC driver who
was near the northern border in a remote area]; U.S. v. Quintana-Garcia, 343 F.3d 1266, 1271–74 (10th
Cir. 2003) [relying on Brignoni-Ponce factors and totality of the circumstances to affirm denial of motion to
suppress where border patrol agent stopped car and drugs were found]; U.S. v. Neufeld-Neufeld, 338 F.3d
374 (5th Cir. 2003) [relying on the Brignoni-Ponce factors, which must be analyzed collectively, and the
use of the totality-of-circumstances approach, even individually innocent actions may collectively result in
sufficient suspicion whereas here the defendant: (1) was 35 miles from the border; (2) was within 2 miles
of a previous drug cache; (3) was using a known drug smuggling route; and (4) appeared stiff, stared
straight ahead, failed to acknowledge border patrol officers and slowed down considerably]; U.S. v.
Gandara-Salinas, 327 F.3d 1127 (10th Cir. 2003) [officer reasonably relied on a number of factors
including the size of respondent’s spare tire]; U.S. v. Vasquez, 298 F.3d 354 (5th Cir. 2002) [border patrol
stopped new pickup truck that drove through private ranch instead of highway without stopping and driver
continually checked rear-view mirror]; U.S. v. Guerrero-Barajas, 240 F.3d 428 (5th Cir. 2001) [common
route for smuggling, lawful vehicles infrequently travel the area at night, Page 465 vehicle riding low, and
driver slowed and began to swerve once agents followed him are sufficient]; U.S. v. Chavez-Chavez, 205
F.3d 145 (5th Cir. 2000) [agents identified the characteristics of the area of the stop, including the
proximity to a checkpoint, the rigid suspension of the vehicle, the type of vehicle, the dirty appearance of
the passengers, and the time of day]; U.S. v. Orozco, 191 F.3d 578 (5th Cir. 1999) [vehicle stop 200 miles
from border by roving patrol requires only reasonable suspicion]; U.S. v. Samaguey, 180 F.3d 195 (5th Cir.
1999) [totality of the circumstances, including the reason to believe he was coming from border, alone, in
out-of-state car, registered to a female, at an unusual hour, on a road known for illegal activity was
sufficient]; U.S. v. Nichols, 142 F.3d 857 (5th Cir. 1998) [clean truck, with no logo, coming from border with
other factors]; U.S. v. Doyle, 129 F.3d 1372 (10th Cir. 1997) [stop reasonable under totality of the
circumstances where sensor indicated border crossing and other factors]; U.S. v. Cruz-Hernandez, 62
F.3d 1353 (11th Cir. 1995) [reasonable suspicion to stop vehicle even though it was not coming from
border where person dressed in clothes typical of undocumented worker, averted his eyes, appeared
Hispanic, vehicle had out of state license plates, and was a typical van for smuggling]; U.S. v. Tehrani, 49
F.3d 54, 59–60 (2d Cir. 1995) [reasonable suspicion to detain based in part on companion’s illegality];
U.S. v. Salazar, 997 F.Supp.2d 549 (W.D. Tex. 2014) [reasonable to stop vehicle after it went through
checkpoint on Highway 131 south of Spofford, TX]; U.S. v. Ramos, 591 F.Supp.2d 93 (D. Mass. 2008)
[van parked in lot with men who appeared to be Middle Eastern (although they later were found to be
Mexican) with a paper license plate from Texas and tinted windows was sufficient post-9/11]; U.S. v.
Ramirez-Monroy, 544 F.Supp.2d 1319 (M.D. Fla. 2008) [denying motion to suppress arising out of vehicle
stop along I-75 in Florida using Brignoni-Ponce factors]; U.S. v. Espinoza-Santill, 976 F.Supp. 561 (W.D.
Tex. 1997) [very early in the morning with little traffic, van was one mile from the border, was type of
vehicle that could be used to haul illegal aliens, driver was Hispanic, failed to yield and tried to evade
agent]; U.S. v. Vendrell-Pena, 700 F.Supp. 1174 (D.P.R. 1988) [city taxi stopped in early morning hours in
remote rural location known to be entry point for illegal aliens]; U.S. v. Galindo-Hernandez, 674 F.Supp.
979 (E.D.N.Y. 1987) [(1) defendants flew from Miami which agents knew was a departure point for illegal
aliens; (2) Hispanic appearance; (3) nervous mannerisms; (4) lack of luggage; (5) expensive but ill-fitting
attire; (6) efforts to appear to be traveling alone while actually traveling together]. But subjective factors
such as “avoiding eye contact” or giving a “suspicious look” are insufficient. Nicacio, supra; Martinez v.
Nygaard, 831 F.2d 822, 827 (9th Cir. 1987) [stopping USC without objectively reasonable suspicion is
unlawful]; Ramirez, supra.
2.c. Good-Faith Exception—Evidence may be admissible even if an officer errs if the officer maintains a
good faith and objectively reasonable belief that an adequate foundation to make a stop existed. U.S. v.
De Leon-Reyna, 930 F.2d 396 (5th Cir. 1991) (en banc); U.S. v. Alvarado-Ramirez, 975 F.Supp. 906, 920–
21 (W.D. Tex. 1997) [rejecting good faith exception].
3. Frisking—In order to frisk someone who has not been arrested, ICE must have a reasonable suspicion
based on specific articulable facts that the individual is armed. Murillo v. Musegades, 809 F.Supp. 487, 498
(W.D. Tex. 1992).
4. Seizures—A stop may ripen into a lawful seizure/arrest only when there is probable cause. U.S. v.
Mendenhall, 446 U.S. 544, 554 (1980) Dunaway v. New York, 442 U.S. 200, 214–15 (1979); Sanchez v.
Sessions, 870 F.3d 901, 912-13 (9th Cir. 2017) [where the Coast Guard violated 8 CFR §287.8(b)(2)
regarding the right to detain only if there is reasonable suspicion based upon specific articulable facts, the
court terminated removal proceedings because the regulation serves a purpose/benefit to the noncitizen and
the noncitizen was prejudiced by the violation when he was seized based solely on his Hispanic ethnicity];
Oliva-Ramos v. U.S. Att’y Gen., 694 F.3d 259, 283-85 (3d Cir. 2012) [incorporated standards in Mendenhall
to 8 CFR §287.8(b)(1) and reversed BIA decision that respondent had not been seized]; Murillo v.
Musegades, 809 F.Supp. 487, 499 (W.D. Tex. 1992) [“A search or seizure will never be considered
reasonable if the officer stops the vehicle solely because of the Mexican ancestry of the occupant”]; Vasquez
v. McPherson, 285 F.Supp.2d 334, 341 (S.D.N.Y. 2003) [where there was immigration warrant for person
meeting plaintiff’s description and plaintiff responded with hostility, police officer had qualified immunity for
arrest]; U.S. v. Vendrell-Pena, 700 F.Supp. 1174, 1178 (D.P.R. 1988) [where officers had sufficient suspicion
to stop taxi and where alien admitted she was Dominican, was unable to provide documentation and was
evasive, there was sufficient probable cause for arrest]. Refusal to answer questions cannot be considered in
determining whether there is probable cause to arrest. Florida v. Royer, 460 U.S. 491 (1983); Ramirez v.
Webb, 719 F.Supp. 610, 616 (W.D. Mich. 1989). Page 466 Asking the driver of a stopped van to turn off his
engine may constitute a seizure. U.S. v. Espinoza, 490 F.3d 41, 48–50 (1st Cir. 2007) [where agent identified
himself as ICE officer, was wearing a holstered firearm, displayed his badge, began asking questions, and in
a commanding tone and manner asked the driver to shut off the engine, seizure was without probable cause].
But see U.S. v. Cobo-Cobo, 873 F.3d 613, 616-17 (8th Cir. 2017) [seizure was not just based on Hispanic
appearance but also based on officer’s experience that it was common for unrelated, illegal males to live
together, that all the occupants spoke Spanish, and that the apartment building was known to have
undocumented persons]; U.S. v. Quintana, 623 F.3d 1237 (8th Cir. 2010) [when name check did not produce
information after valid traffic stop where defendant stated he was Mexican and could provide no confirmation
of lawful entry, his stop ripened into a warrantless administrative arrest for deportation proceedings under 8
USC §1357(a)(2) and 8 CFR §287.8(c)(2)(iv)]. U.S. v. Torres-Lona, 491 F.3d 750, 756–57 (8th Cir. 2007)
[admission that he was born in Mexico, did not have documents, and found in apartment complex known to
house undocumented persons where others had been arrested and false documents found was enough for
probable cause].
5. Interrogation Procedure
5.a. Generally— 8 CFR §287.3(c) advisal of rights applies only when a party is both arrested and an NTA is
filed with the immigration court by DHS. Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011) [Under
8 CFR §287.3(c) the “initiation of formal proceedings” (filing of NTA) [is] “a necessary precondition to the
mandatory issuance of the advisals”]; Corado-Arriaza v. Lynch, 844 F.3d 74, 78-79 (2d Cir. 2016)
[violation of 8 CFR §287.3(c) (requirement to provide Miranda warnings) and 8 CFR §287.8(b)(1) (right to
question but not arrest person) do not create any enforceable rights to suppress evidence]; Samayoa-
Martinez v. Holder, 558 F.3d 897, 901–03 (9th Cir. 2009) [rights under §287.3 do not arise until NTA is
issued; Navia-Duran and Matter of Garcia-Flores distinguished as arising under prior regulation]. But see
De Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir. 2008) [reversing IJ finding that §287.3 did
not apply where respondent was arrested by border patrol and remanded with suggestion to issue
precedent decision]; Singh v. Mukasey, 553 F.3d 207, 215-16 (2d Cir. 2009). If there is a violation it may
be subject to the harmless error rule. Rajah v. Mukasey, 544 F.3d 427, 443–48 (2d Cir. 2008) [pretrial
violations of 8 CFR §287.3 and 8 CFR §287.8 cannot result in suppression of evidence or termination of
proceedings where violations were harmless and nonegregious].
5.b. Statements Taken on Form I-213—The arresting officer should not take a statement on an I-213, unless
no other officer is available or it would result in unnecessary delay. 8 CFR §287.3(a); Martinez-Camargo v.
INS, 282 F.3d 487 (7th Cir. 2002) [where INS officer violated §287.3(a) but respondent was not
prejudiced, evidence was not excluded and removal affirmed]; Matter of Garcia-Flores, 17 I&N Dec. 325
(BIA 1980). Alien has to sign Form I-214 waiver of rights form. Advisal of rights should contain all rights
under 8 CFR §287.3 including: (1) reason for arrest; (2) right to be represented by counsel of alien’s own
choice; (3) list of available free legal services; (4) self-incrimination; (5) notice that a decision will be made
within 24 hours or less; (6) whether alien will continue in custody or be released on bond. Advisal of rights
per regulation are given after interrogation. 8 CFR §287.3. The Fourth and Fifth Amendments may require
otherwise. Singh v. Mukasey, 553 F.3d 207, 214–16 (2d Cir. 2009) [all night questioning of LPR at
Canadian border, accompanied by pressure tactics, and failure to advise him of his rights, including that
his statement would be used against him, when he was obviously in custody and not free to leave,
created an unreliable statement that must be suppressed]; Navia-Duran v. INS, 568 F.2d 803 (1st Cir.
1977). Statement cannot be taken from unaccompanied minor under 18 on Form I-213. 8 CFR
§1240.10(c). The use of threats, coercion, or physical abuse is prohibited. 8 CFR §287.8(c)(vii). But see
Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2016) [I-213 is presumptively reliable, petitioner did not
demonstrate that it was inaccurate, and the document coupled with petitioner’s silence can be used to
establish alienage even if petitioner was subject to rough verbal tactics when signing I-214].
5.c. ICE Prison Interviews—At least one circuit has determined that when an ICE agent interviews a person
detained in prison to ascertain his immigration status, he need not provide Miranda warnings if he would
not have reasonably known that his questions were reasonably likely to elicit an incriminating response
from the defendant/respondent. U.S. v. Lopez-Garcia, 565 F.3d 1306, 1317 (11th Cir. 2009) [denied
suppression on Fifth Amendment grounds of un-Mirandized Page 467 statement used to bring criminal
“found in” charge]; but see U.S. v. Chen, 439 F.3d 1037, 1042-43 (9th Cir. 2006) [affirming suppression of
un-Mirandized statement where questioning about alienage “was reasonably likely to elicit a response that
would incriminate [defendant] in a §1325 prosecution”].
In the aftermath of Sept. 11, 2001, the AG announced a program whereby FBI and other law enforcement
partners would interview young males from Middle Eastern countries about “international terrorism.” The
guidelines may still be used by the FBI. Memo, Deputy AG, Guidelines for the Interviews Regarding
International Terrorism (Nov. 9, 2001), reprinted in 78 No. 46 Interpreter Releases 1816, 1829–35 (Dec. 3,
2001).
5.d. Department of Defense Interrogation—The uniform standards for the interrogation of persons under the
U.S. Army Field Manual on Intelligence Interrogation do not apply to persons in the custody or under the
effective control of DOD pursuant to the criminal or immigration law of the U.S. National Defense
Authorization Act for FY 2006, PL 109-163, 119 Stat. 3136 (Jan. 6, 2006), Title XIV, Sec. 1402.
6. Use of Force—DHS may only use reasonable force to affect a seizure. Murillo v. Musegades, 809 F.Supp.
487, 500 (W.D. Tex. 1992) [Fourth Amendment protects against physically intrusive behavior during arrest];
Ramirez v. Webb, 719 F.Supp. 610, 616–18 (W.D. Mich. 1989). To determine whether force is excessive,
court must balance the “nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interest at stake.” Graham v. Connor, 490 U.S. 386 (1989);
Tennessee v. Garner, 471 U.S. 1 (1985). See also 8 CFR §287.8.
6.a. DHS Use of Deadly Force—In a 2004 Memo, DHS established a deadly force policy “applicable to all
DHS law enforcement officers and agents … for all DHS components.” Memo, Ridge, Secretary, DHS,
“Use of Deadly Force Policy,” (July 1, 2004), AILA Doc. No. 14030749. Deadly force may only be used
when “the officer has a reasonable belief that the subject of such force poses an imminent danger of
death or serious physical injury to the officer or to another person.” Deadly force may not be used: (i)
solely to prevent the escape of a fleeing suspect; (ii) to disable moving vehicles, vessels, aircraft or
conveyances except if (a) Secret Service in their protective responsibilities; (b) USCIS, CBP and Coast
Guard in maritime enforcement; (iii) as warning shots except for Secret Service, maritime enforcement as
a signal, and aviation law enforcement as a signal. A warning in all circumstances should be given before
deadly force is used, if feasible and if to do so would not increase the danger to the officer or others.
6.b. CBP Use of Deadly Force—Border Patrol Agent may only use deadly force if she has a reasonable
belief, based on the “totality of the circumstances,” that the subject of the force “poses an imminent
danger of death or serious physical injury to the agent or another person.” Memo, Fisher, Chief, U.S.
Border Patrol, CBP, “Use of Safe Tactics and Techniques,” (Mar. 7, 2014), AILA Doc. No. 14030745.
Officers are now instructed not to discharge their firearms at a moving vehicle unless deadly force is being
used against them. Id. Agents should also continue to avoid placing themselves in positions where they
have no alternative to using deadly force. They “shall not discharge firearms in response to thrown or
hurled projectiles” unless they are in imminent danger and instead should seek a tactical advantage “such
as seeking cover or distancing themselves from the immediate area of danger.” Id. Deadly force should
only be used when the officer has a “reasonable belief that the subject of such forces poses an imminent
danger of serious physical injury or death to the officer/agent or to another person.” Serious physical injury
is an “injury which creates a substantial risk of death or which causes serious disfigurement, serious
impairment of health or serious loss or impairment of the function of any bodily organ or structure or
involves serious concussive impact to the head.” CBP, Use of Force Policy Handbook (May, 2014), HB
4500-01C, at pp. 2-4, AILA Doc. No. 14053046 [detailing all aspects of use of force including its use on a
continuum and the need to report use of deadly force]. Generally, CBP’s policy on deadly force mirrors
that of DHS. The use of deadly force must be orally reported to a supervisor within one hour of the
incident unless the officer is incapacitated. Supervisors must then report the matter and there must be an
investigation of the incident. Id. at 17-20. Using a case-based approach and establishing a National Use
of Force Review Board (NUFRB), CBP has made further recommendations concerning their officers’ use
of force including: (i) new training aides for cross-fire scenarios; (ii) development of reality-based shoot
and no-shoot training scenarios involving rock throwing; and (iii) distribution of pocket cards to agents
pertaining to the legality of checkpoint Page 468 operations and 4th amendment rights. Announcement,
CBP, Update on the CBP National Use of Force Review Board, AILA Doc. No. 18021505.
6.c. ICE Use of Force Policy—ICE established interim guidelines pursuant to the Secretary’s announcement
on July 1, 2004. ICE, “Interim ICE Use of Force Policy,” (July 7, 2004), AILA Doc. No. 14030747. ICE
added the caveat to DHS prohibitions on the use of deadly force that it may still be used if, for example, a
fleeing person’s escape “would pose an imminent danger of death or serious physical injury to the officer
or to another person.” Force Policy, supra at 3. ICE maintains a Shooting and Use of Force Incident
Report form, NFTTU-10, whenever deadly force is used.
H. Area Control Operations; Investigative Searches; Worksite Enforcement Operations
1. Broad Factory Sweeps—INS v. Delgado, 466 U.S. 210 (1984) [factory sweeps/surveys where persons
believe they are free to leave do not constitute seizure of any individual worker under Terry v. Ohio]. But
detention of entire workforce is not permissible. Pearl Meadows Mushroom Farm, Inc. v. Nelson, 723 F.Supp.
432, 445–49 (N.D. Cal. 1989).
1.a. Area Control Operations; Bus Searches—Area control operations may be lawful seizures under the
Constitution. Illinois Migrant Council v. Pilliod, 531 F.Supp. 1011 (N.D. Ill. 1982) [reasonable suspicion is
standard for a control operation]; English v. Sava, 571 F.Supp. 1029 (S.D.N.Y. 1983). But see Gallegos v.
Haggerty, 689 F.Supp. 93 (N.D.N.Y. 1988) [distinguishing and rejecting English in context of farmhouse
raid]. Routinely boarding buses at scheduled stops and asking passengers for permission to search
luggage, following Delgado, is not a per se seizure. Florida v. Bostick, 501 U.S. 429 (1991). But see U.S.
v. Ellis, 330 F.3d 677 (5th Cir. 2003) [where border patrol agents completed an immigration search of a
bus, they may not continue to detain passengers to look for drugs absent individualized suspicion].
1.b. Standard—The standard to be applied for warrant to inspect is a “relaxed standard.” Blackie’s House of
Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981) [providing “relaxed standard” of probable cause in
INS searches of businesses]. Accord International Molders & Allied Workers Local 164 v. Nelson, 799
F.2d 547 (9th Cir. 1986) [preliminary injunction denied in part to restrain use of “warrants of inspection” to
enter private businesses to search for unidentified or unknown aliens; accepting lower standard of
probable cause in Blackie’s House of Beef. Persons need not be named in warrant unless it is warrant to
seize a person (instead of search premises). However, part of basis for standard is that there were no
employer sanctions at the time]. See also Abel v. U.S., 362 U.S. 217 (1960).
1.c. Identification of Humanitarian Concerns in Worksite Enforcement—ICE has set forth guidelines to be
applied by officers conducting a worksite enforcement action that targets more than 150 people.
Guidelines For Identifying Humanitarian Concerns In Worksite Enforcement Operations AILA Doc. No.
07111631 [ICE should identify sole care givers and other humanitarian cases including persons with
serious medical conditions, pregnant women and nursing mothers and parents needed to support
seriously ill spouses or children so that they may be released or obtain help from the Division of Immigrant
Health Services of HHS or local or state SSA]. But see The presumption against detaining pregnant
women has changed and is no longer in effect. ICE, Directive 11032.3 Identification and Monitoring of
Pregnant Detainees (Dec. 14, 2017), AILA Doc. No. 18032931. ICE, FAQs, Identification and Monitoring
of Pregnant Detainees (Mar. 30, 2018), AILA Doc. No. 18033060[“ICE has ended the presumption of
release for all pregnant detainees”].
2. Standing to Contest Search or Warrant—Following Rakas v. Illinois, 439 U.S. 128, 133–34 (1978), the
Ninth Circuit found that USCs or LPRs seized in a factory raid had no standing under the Fourth Amendment
to challenge the warrant because no expectation of privacy existed where work space was open and shared
by 75 people. Martinez v. Nygaard, 831 F.2d 822, 825–26 (9th Cir. 1987); U.S. v. Gutierrez-Casada, 553
F.Supp.2d 1259 (D. Kan. 2008) [undocumented person who reentered after removal had no standing to
contest warrantless search of his home because he had no reasonable expectation of privacy]. But see
International Molders v. Nelson, 674 F.Supp. 294, 296 n.1 (N.D. Cal. 1987) [aliens have standing to challenge
warrant where it was directed at seizing individuals, not just searching workplace]; Gallegos v. Haggerty, 689
F.Supp. 93 (N.D.N.Y. 1988) [following Rakas standing based on legitimate expectation of privacy, not on
property rights, Page 469 and tenants of migrant farm dwelling where landlord’s ownership was in question
have reasonable expectation of privacy].
3. Challenging the Warrant
3.a. Test is whether warrant and supporting affidavit contain sufficient specificity and reliability to prevent
exercise of unbridled discretion by law enforcement officers. International Molders v. Nelson, 674 F.Supp.
294, 296 (N.D. Cal. 1987) [relying on Delaware v. Prouse, 440 U.S. 648 (1979)]. Cf. U.S. v. Zhu, 555
F.Supp.2d 1375, 1381–82 (S.D. Ga. 2008) [in harboring case, a warrant that stated “any and all files
relating to the harboring, transporting, importation and employment of unauthorized aliens” is
sufficient].For example of a warrant to search premises for undocumented persons see Warrant in Yamato
Engine Specialists 1990 LTD, No. MS09-0030-JPD (W.D. Wash. Feb. 27, 2009), AILA Doc. No.
09031261.
3.b. Seizure of all of lawyer’s files may be permitted if it is found that the lawyer’s practice was “permeated
by fraud.” Attorney-client privilege may not be a basis to prevent search where it would protect the
commission of a crime and where information put on INS forms constituted a waiver of privilege. U.S. v.
Oloyede, 982 F.2d 133, 140–41 (4th Cir. 1992).
3.c. Must determine whether it is warrant of inspection or general, open-ended seizure warrant. A general
warrant is not permissible. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); See v. City of Seattle, 387 U.S.
541 (1967); International Molders v. Nelson, 674 F.Supp. 294, 297–300 (N.D. Cal. 1987). If a warrant of
inspection is issued to conduct area-wide inspections to determine compliance, a less-than-probable-
cause standard (as in Blackie’s House of Beef, supra) may apply. Camara v. Municipal Court of City &
Cnty. of San Francisco, 387 U.S. 523 (1967). However, a warrant of inspection may be challenged under
a 2-part test. Matter of Trinity Indus., 876 F.2d 1485 (11th Cir. 1989). The court must determine (1)
whether the plan pursuant to which the warrant was issued is based on specific, neutral criteria; and (2)
whether the warrant application clearly and adequately establishes that the particular company was
selected pursuant to the application of the plan’s neutral criteria. See also Hummel-Jones v. Strope, 25
F.3d 647, 652 n.8 (8th Cir. 1994) [discussing limitation on detention pursuant to a warrant and the scope
of the warrant]; Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir. 1987) [finding Fourth Amendment
violation even in presence of a warrant].
4. Warrantless Searches and Seizures
4.a. Open-field raids are not seizures. Oliver v. U.S., 466 U.S. 170 (1984) [even where there were no-
trespass signs and locked gates, no seizure]. But ICE, by statute, must have consent of owner or warrant
to enter “farm or other outdoor agricultural operation.” INA §287(e), 8 USC §1357(e). But see Moher v.
U.S., 875 F.Supp.2d 739, 772-79 (W.D. Mich. 2012) [rejecting statutory and Fourth Amendment claim
where CBP officers entered commercial land after cutting barbed wire]. However, ICE claims that entry
onto private land within 25 miles of the border (except private dwellings) may be done without a warrant. 8
CFR §287.5(b). But 8 CFR §287.8(f)(2) provides that a DHS officer may not enter nonpublic areas of a
business, a residence (including the curtilage), or a farm or other outdoor agricultural operation absent a
warrant or consent.
4.b. Night-vision goggles when used are not considered a search; the plain view exception applies. U.S. v.
Vela, 486 F.Supp.2d 587, 589–90 (W.D. Tex. 2005) [use of night-vision goggles does not constitute a
search; Kyllo v. U.S., 533 U.S. 27 (2001), distinguished].
4.c. Cannot enter migrant farm dwellings without warrant. LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985).
4.d. Stops of Hispanic-looking persons on highways in Washington state violated Fourth Amendment.
Nicacio v. INS, 797 F.2d 700 (9th Cir. 1985).
4.e. Warrantless searches are presumptively unreasonable, and absent consent or probable cause and
exigent circumstances, DHS cannot enter home to search or arrest. Cotzojay v. Holder, 725 F.3d 172 (2d
Cir. 2013) [nighttime, nonconsensual warrantless raid of a home was an egregious violation of the Fourth
Amendment]; U.S. v. Castellanos, 518 F.3d 965, 971–72 (8th Cir. 2008) [DHS officers cannot rely on 8
USC §1357 to conduct warrantless searches of homes]; U.S. v. Troop, 514 F.3d 405 (5th Cir. 2008)
[reversing criminal prosecution for transporting an alien Page 470 because no exigent circumstances to
justify border patrol’s warrantless entry of home]; U.S. v. You, 198 F.Supp.2d 393 (S.D.N.Y. 2002)
[evidence suppressed where agents made warrantless entry into home, made arrest, and consent to
search was not voluntary]; Gallegos v. Haggerty, 689 F.Supp. 93 (N.D.N.Y. 1988). Warrantless searches,
absent warrant exceptions, are not permitted on “commercial curtilage” which may be protected by the
Fourth Amendment where there is a reasonable expectation of privacy. Pearl Meadows Mushroom Farm,
Inc., 723 F.Supp. at 438–43.
4.f. Reliance on State Officers Insufficient—DHS cannot simply rely on claims of state officers that they will
obtain a warrant for search. Guerra v. Sutton, 783 F.2d 1371 (9th Cir. 1986).
4.g. Consent to Search—Whether consent was knowingly given and voluntary is based on totality of
circumstances. U.S. v. Watson, 423 U.S. 411 (1976); Schneckloth v. Bustamonte, 412 U.S. 218 (1973);
Oliva-Ramos v. U.S. Att’y Gen., 694 F.3d 259, 282-83, 286 (3d Cir. 2012) [IJ erred in relying on 8 CFR
§287.8(f)(2) without a thorough inquiry whether under the totality of the circumstances consent was
voluntary and whether 8 CFR §287.8(c)(2)(vii) regarding coerced waivers was applicable]; LaDuke v.
Nelson, 762 F.2d 1318, 1329 (9th Cir. 1985); U.S. v. Summers, 153 F.Supp.3d 1261, 1267-68 (S.D. Cal.
2015) [government failed to meet its burden to show consent]; U.S. v. You, 198 F.Supp.2d 393, 405
(S.D.N.Y. 2002) [consent not voluntary under circumstances including the fact that an unlawful arrest
occurred, that defendant tried to shut the door to his home and INS agents prevented it, and that 6 agents
were standing inside his apartment or in the hallway at the time]; U.S. v. Ramos, 753 F.Supp. 75, 80
(W.D.N.Y. 1990) [where INS never established that defendant knew she had the right to refuse, no
consent]; but see U.S. v. Cruz-Mendez, 467 F.3d 1260 (10th Cir. 2006) [in illegal reentry case the renter of
the apartment gave consent for officer to come into her living room and bedroom]; U.S. v. Esparza-
Mendoza, 386 F.3d 953 (10th Cir. 2004) [upholding reentry after deportation conviction where evidence
concerning identification was obtained voluntarily and officer’s statement that she “needed” identification
from the defendant did not make compliance nonvoluntary]. Where search occurred after illegal stop, INS
has higher burden to show consent was voluntary. U.S. v. Varela-Delgado, 547 F.Supp.2d 704, 714–15
(W.D. Tex. 2008) [no free and voluntary consent where agents coerced her after conducting an unlawful
stop]; U.S. v. Alvarado-Ramirez, 975 F.Supp. 906, 919–20 (W.D. Tex. 1997). Where agent secured
consent to search apartment by falsely representing that he could get a search warrant, consent was not
voluntary. U.S. v. Cruz, 701 F.Supp. 440 (S.D.N.Y. 1988); see also Pearl Meadows Mushroom Farm, Inc.,
723 F.Supp. at 443–45 [coercive or misleading statements used to obtain consent impermissible]. A
search is permissible where one person who possess common authority over the home voluntarily
consents to allow DHS to search even if another person in the home is affected. U.S. v. Cobo-Cobo, 873
F.3d 613, 615-16 (8th Cir. 2017) [defendant’s Fourth Amendment rights were not violated where another
person living in the apartment with him voluntarily agreed to the search]. Where person consented to
speak with border patrol who made no gestures which objectively would constitute detention there was no
seizure. U.S. v. Tehrani, 826 F.Supp. 789, 798–99 (D. Vt. 1993), aff’d, 49 F.3d 54 (2d Cir. 1995).
4.h. Wiretaps—Congress provided DHS with authority to wiretap persons engaged in criminal activity related
to alien smuggling or document fraud. IIRIRA §434, 18 USC §2516(l).
4.i. Consensual Recording—Where there is a reasonable expectation of privacy, the government has no
right to record a person’s statements and such statements will not be deemed voluntary. Katz v. U.S., 389
U.S. 347 (1967). However, if an informer is invited to participate and a person voluntarily divulges
information to the informer, that person is not protected by the Fourth Amendment. Hoffa v. U.S., 385 U.S.
293 (1966). The First Amendment’s Free Exercise Clause is not a defense to an informer’s entering a
church and recording conversations of parishioners. U.S. v. Aguilar, 871 F.2d 1436, 1470–73 (9th Cir.
1989). However, the Free Exercise Clause requires the government to use the “least restrictive means” in
the intrusion into church activities and prevents “unfounded and inappropriate covert activity which has as
its purpose or objective the abridgement of the First Amendment freedoms of those involved.”
Presbyterian Church (USA) v. U.S., 752 F.Supp. 1505, 1513–16 (D. Ariz. 1990). Page 471
5. Border/Checkpoint Search and Seizure
5.a. Border Searches—The right of government agents to stop and search travelers at international borders
does not implicate the Fourth Amendment, U.S. v. Montoya de Hernandez, 473 U.S. 531, 537 (1985);
Carroll v. U.S., 267 U.S. 132, 153–54 (1925), and probable cause is not required to justify a stop or
search. U.S. v. Ramsey, 431 U.S. 606, 616 (1977); U.S. v. Vergara, 884 F.3d 1309 (11th Cir. 2018)
[manual or forensic searches of cell phones at the border are not searches incident to an arrest, they are
border searches that never require a warrant or probable cause, although they may require reasonable
suspicion]; U.S. v. Stevenson, 274 F.Supp.2d 819, 820 (S.D. Tex. 2002) [border search where dog alerted
to drugs is lawful]; U.S. v. Waldron, 178 F.Supp.2d 738 (W.D. Tex. 2002) [same]. This may include
searches while a person is departing the U.S. as well as entering. U.S. v. Seljan, 547 F.3d 993, 999 (9th
Cir. 2008); U.S. v. Boumelhem, 339 F.3d 414, 423 (6th Cir. 2003). But the search must be related to a
potential export violation if the person is leaving and must be balanced against the degree of invasion of
privacy. U.S. v. Kim, 103 F.Supp.3d 32 (D.D.C. 2015) [suppressed laptop search where it was different
than the typical border search because the laptop was seized while the person was leaving but was not
searched at the time; instead it was taken to a lab 150 miles away and the seizure was not predicated on
any observation of defendant’s activities]. The detention of a person at the border does implicate the
Fourth Amendment and such detention must be based on reasonable cause. Chehade Refai v. Lazaro,
614 F.Supp.2d 1103 (D. Nev. 2009) [a Fourth Amendment right to be free from nonroutine (strip) searches
without reasonable suspicion is clearly established for unadmitted aliens who are stopped at the airport
and taken to detention facility]; Ramirez v. U.S., 81 F.Supp.2d 532, 536–37 (D.N.J. 2000). Such border
searches apply to persons exiting as well as entering the U.S. U.S. v. Oriakhi, 57 F.3d 1290 (9th Cir.
1995).
Although Congress gave DHS broad authority to conduct searches, including searches in any “railway car,
aircraft, conveyance, or vehicle,” within a “reasonable distance” of the border, INA §287(a)(3), 8 USC
§1357(a)(3), which the agency has defined as 100 miles, 8 CFR §287.1(a)(2), the statute and regulation
are subordinate to the Constitution. Roving patrols within 20 miles of the border were deemed not to be
the “functional equivalent” of the border, Almeida-Sanchez v. U.S., 413 U.S. 266, 273 (1973), and
therefore the Service was required to have probable cause, not reasonable suspicion, for any vehicle
stop. Accord U.S. v. Venzor-Castillo, 991 F.2d 634 (10th Cir. 1993) [stop that allows someone to pass
through 13 New Mexico towns before checkpoint was not within reasonable distance of border]. See also
U.S. v. Castellanos, 518 F.3d 965, 971–72 (8th Cir. 2008) [DHS cannot rely on 8 USC §1357 to conduct
warrantless searches of homes because it pertains to persons seeking entry], but see U.S. v. Wise, 877
F.3d 209 (5th Cir. 2017) [a “bus interdiction” or “bus boarding” is not per se an unconstitutional checkpoint
because as the court recognized “[d]uring the interdiction, passengers may leave the bus. They may also
refuse to speak with officers”]. However, if the court determines that the stop occurs at the functional
equivalent of the border, then reasonable suspicion is sufficient. U.S. v. Brignoni-Ponce, 422 U.S. 873
(1975). Roving patrol, according to one court, could be as far as 200–300 miles from the border. U.S. v.
Orozco, 191 F.3d 578 (5th Cir. 1999). But the reasonable suspicion standard is not toothless. U.S. v.
Jones, 149 F.3d 364 (5th Cir. 1998) [car more than 80 miles from border in area near a national park
cannot be considered to have come from the border]; Murillo v. Musegades, 809 F.Supp. 487, 499 (W.D.
Tex. 1992); U.S. v. Alvarado-Ramirez, 975 F.Supp. 906 (W.D. Tex. 1997) [where INS had no authority to
stop for speeding, there was a question as to whether person was speeding, and car with Mexican license
plate had no obligation to stop, no reasonable suspicion]. But see U.S. v. Barron-Cabrera, 119 F.3d 1454
(10th Cir. 1997) [where officer observed person for 9/11ths of a second he had sufficient time to observe
him]. And where the search is intrusive, whether at the functional equivalent of the border or an extended
border search, the officer is required to have both “reasonable certainty” that the contraband was in the
vehicle at the time of crossing and “reasonable suspicion” that criminal activity is occurring. U.S. v.
Guzman-Padilla, 573 F.3d 865, 878–82 (9th Cir. 2009) [in drug bust in remote area of Imperial County
California Border Patrol used device to deflate petitioner’s tires and established both “reasonable
certainty” and “reasonable suspicion].
5.b. Fixed Checkpoints that are Equivalent to the Border—Similarly, fixed checkpoint stops need not meet
the probable cause standard if they are deemed to be the functional equivalent of the Page 472 border.
U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976); U.S. v. Ventura, 447 F.3d 375 (5th Cir. 2006) [evidence of
marijuana not suppressed because border patrol at fixed checkpoint near Laredo, Texas were entitled to
sweep the restrooms and exterior luggage compartments of commercial buses as long as their primary
purpose was to interdict illegal immigrants and stop was not unreasonably prolonged]; U.S. v. Pollard, 326
F.3d 397 (3d Cir. 2003) [checkpoint in U.S. Virgin Islands does not violate Fourth Amendment or equal
protection under the Fifth Amendment]; U.S. v. Moreno-Vargas, 315 F.3d 489 (5th Cir. 2002) [where drug
interdiction was secondary purpose of fixed immigration checkpoint, checkpoint was reasonable and
constitutional]; U.S. v. Barnett, 935 F.2d 178 (9th Cir. 1991) [search in secondary inspection]. An airport
stop in Puerto Rico pursuant to INA §212(d)(7) and 8 CFR §§235.5(a), 1235.5(a) was held constitutional
as border stop and within Fourth Amendment, but practice of taking tickets was struck down as
inconsistent with Florida v. Royer, 460 U.S. 491 (1983) and Fourth Amendment. Lopez-Lopez v. Aran, 844
F.2d 898 (1st Cir. 1988). A border search may be conducted even where person was not admitted to
Canada and upon return to the U.S. was searched. U.S. v. Romm, 455 F.3d 990, 996–97 (9th Cir. 2006)
[USC with laptop containing child pornography who was not admitted into Canada was properly subject to
border search upon his return to the U.S.].
However, highway checkpoints that are not deemed equivalent of the border can only be justified “by
some quantum of individualized suspicion.” City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000)
[highway checkpoint whose primary purpose was to interdict illegal narcotics was held invalid because the
program’s purpose is indistinguishable from fighting crime generally]; U.S. v. Jaime, 473 F.3d 178, 181–83
(5th Cir. 2006) [following Edmond but determining that person on bus gave consent to open luggage that
contained drugs]. See also U.S. v. Wise, 877 F.3d 209 (5th Cir. 2017) [a “bus interdiction” or “bus
boarding” is not per se an unconstitutional checkpoint because as the court recognized “[d]uring the
interdiction, passengers may leave the bus. They may also refuse to speak with officers”].
Demonstrations near checkpoints may be protected by the First Amendment if the area around the
checkpoint—the enforcement zone—where the demonstration was taking place was a public or nonpublic
forum from which the government could reasonably exclude the public. See e.g., Jacobson v. DHS, 882
F.3d 878 (9th Cir. 2018) [case remanded back for additional discovery to determine whether area was a
public or nonpublic forum and whether enforcement of ban was selective based upon point of view].
5.c. Drones at the Border—CBP currently operates 10 Predator B drones at and along the border and has
established a task force to discuss privacy and civil rights and civil liberties issues. Memo, Kessler, DHS,
Office of Civil Rights and Civil Liberties and Cantor, DHS Acting Privacy Chief, Working Group to
Safeguard Privacy, Civil Rights and Civil Liberties in the Department’s Use and Support of Unmanned
Aerial Systems (UAS) (Sept. 14, 2012), AILA Doc. No. 13022157. See also Office of Inspector General,
U.S. Customs and Border Protection’s Unmanned Aircraft Systems Program Does Not Achieve Intended
Results or Recognize All Costs of Operation, OIG-15-17, AILA Doc. No. 15010647[after 8 years CBP
cannot prove the program is effective because it has not developed performance measures].
5.d. Laptop/Smart Phone Searches at the Border—CBP believes that as part of its longstanding practice
and law regarding border security, it has the authority to search, review, retain, and share information
contained in “computers, tablets, removable media, disks, drives, tapes, mobile phones, cameras, music
and other media players, and any other communication, electronic, or digital devices subject to inbound
and outbound border searches.” CBP Directive No. 3340-049A (Jan. 4. 2018), AILA Doc. No. 18010539.
However, a border search of electronic devices will include an examination of “only the information that is
resident upon the device and accessible through the device’s operating system or through other software,
tools, or applications. Id. at 5.1.2. See also CBP, Muster, Border Search of Electronic Devices Containing
Information (Apr. 13, 2017), AILA Doc. No. 17120636 [recognizing limitations “to avoid retrieving or
accessing information stored remotely and not otherwise present on the device”]. To avoid retrieving
information stored remotely, CBP officers will ask the traveler to disable connectivity to any network. CBP
Directive No. 3340-049A, supra. If the CBP officer has reasonable suspicion of activities in violation of the
laws enforced or administered by CBP or if there is a national Page 473 security concern, an officer with
grade 14 level or higher approval may conduct an “advanced search,” which permits connecting external
equipment to an electronic device to review, copy, and/or analyze its contents. Id at 5.1.4. Where attorney-
client concerns have been raised, CBP has established a procedure to segregate the information. Id. at
5.2. Electronic devices may be detained for 5 days with extensions to 15 days. Id. at 5.4.1.1. But the
device may be retained only where there is probable cause. Id. 5.5.1.1 CBP, Inspection of Electronic
Devices (Apr. 2017), AILA Doc. No. 17041260. CBP has concluded that: “Border searches of electronic
devices may include searches of the information physically resident on the device when it is presented for
inspection or during its detention by CBP for an inbound or outbound border inspection…[and]..may
include an examination of information stored on the device that is accessible through software, tools, or
applications.” In U.S. v. Cotterman, 709 F.3d 52 (9th Cir. 2013) (en banc) the court held that a forensic
examination of a laptop requires reasonable suspicion, that the fact that a laptop is password protected
could not in isolation supply reasonable suspicion, and that the test is totality of the circumstances. See
also U.S. v. Vergara, 884 F.3d 1309 (11th Cir. 2018) [manual or forensic searches of cell phones at the
border are not searches incident to an arrest, they are border searches that never require a warrant or
probable cause, although they may require reasonable suspicion]; U.S. v. Molina-Isidoro, 267 F.Supp.3d
900 (W.D. Tex. 2016) [cell phone search at the border is reasonable without a warrant, probable cause or
even reasonable suspicion and the S.Ct. decision in Riley v. California, 134 S.Ct. 2473, 2482 (2014)
providing for a cell phone exception regarding a search incident to an arrest does not alter the law on
border searches]; U.S. v. Kolsuz, 185 F.Supp.3d 843 (E.D. Va. 2016) [iPhone search after arrest, 4 miles
from the airport and one month after seizure does not alter the conclusion that it was a border search and
while the manual search of the defendant’s iPhone conducted at the airport was a routine border search,
not requiring probable cause, the subsequent forensic search at HIS office was a “nonroutine border
search requiring some level of individualized (reasonable) suspicion”]; U.S. v. Irving, 432 F.3d 401, 213–
15 (2d Cir. 2005) [for nonroutine searches at the border such as looking through luggage for diskettes,
reasonable suspicion is needed]; U.S. v. Djibo, 151 F.Supp.3d 297, 310 (E.D.N.Y. 2015) [outbound person
should not have been required to provide passcode for smart phone after no contraband or currency was
found]. But see U.S. v. Ickes, Jr., 393 F.3d 501, 505–07 (4th Cir. 2005) [rejecting First Amendment
argument]; U.S. v. Ramos, 190 F.Supp.3d 992 (S.D. Cal. 2016) [notwithstanding Riley v. California, 573
U.S. __, 134 S.Ct. 2473 (2014) requiring search warrant to access contents of a cell phone taken from an
arrestee, it was reasonable to treat respondent’s cell phone as a border search under the totality of the
circumstances where drugs were found in his car, he was arrested, and he indicated he had been in cell
phone contact with his boss]; U.S. v. Caballero, 178 F.Supp.3d 1008, 1011-20 (S.D. Cal. 2016)
[warrantless cursory cell phone search at the border under Cotterman is permissible when based on
reasonable suspicion and where it did not involve the application of forensic hardware]; U.S. v. Thompson,
53 F.Supp.3d 919 (W.D. La. 2014) [warrantless search at border of international traveler’s cellular phone,
external hard drive and computer permitted]; Abidor v. Napolitano, 990 F.Supp.2d 260 (E.D.N.Y. 2013)
[same]. See also generally, Riley v. California, 573 U.S. __, 134 S.Ct. 2473 (2014) [searches of cell
phones require warrants]; U.S. v. Camou, 773 F.3d 932 (9th Cir. 2014) [reversed denial of motion to
suppress cell phone search by CBP significantly after it stopped truck and arrested defendant]; U.S. v.
Kim, 103 F.Supp.3d 32 (D.D.C. 2015) [a border search while someone is leaving the U.S. is permissible,
but in this case while the laptop was seized at the border it was not searched while the person was
departing the country; instead it was sent to a lab 150 miles away where a duplicate was made and then
searched].
5.e. Search in International Waters—The extent of the Service’s authority to investigate and search in
international waters has been challenged in that the investigating authority is limited to territorial waters
under INA §287(a)(3), 8 USC §1357(a)(3). However, the court in U.S. v. Chen, 2 F.3d 330 (9th Cir. 1993),
rejected this theory on the grounds that the AG’s authority under what is now INA §103(c) provides no
such limitation. But see 8 CFR §287.1(a)(1), specifically defining enforcement authority as 12 nautical
miles into territorial seas.
6. Dog Alerts—A motion to suppress was granted where expert’s evidence demonstrated dog could not be
trained to alert to human smell in trunk as opposed to anywhere. U.S. v. Summers, 153 F.Supp.3d 1261,
1268-70 (S.D. Cal. 2015) [government failed to meet its burden to show consent] Page 474
7. Driver’s Licenses—Seizure of driver’s license and return to state motor vehicle bureau not unlawful seizure.
Lopez v. INS, 758 F.2d 1390 (10th Cir. 1985). Each state, on its own initiative and pursuant to the REAL ID
Act of 2005 has established procedures for noncitizens to obtain drivers’ licenses. See “Driver’s Licenses &
REAL ID Act,” Chapter 6, Section XIII.L (p.1421), infra.
8. Sting Operations—Legacy INS established guidelines for sting operations that do not permit Service
officers to make misrepresentations to induce persons to go to INS (e.g., “you will receive a work permit”), but
nevertheless allow the Service to send a person a letter saying they wish to discuss your immigration status.
Memo, Meissner, Comm. HQ 243-P (Dec. 17, 1993), reprinted in 71 No. 23 Interpreter Releases 777, 796–99
(June 13, 1994). However, sting operations have expanded significantly under ICE and have included
establishing a fraudulent university to entrap agents and students into applying to the school. Fang v. Homan,
No. 2:17-cv-2091 (JLL) (D.N.J. Oct. 2, 2017), available at http://bit.ly/fang-2017-10-02 [challenge to ICE
charging fraud against students who enrolled in the ICE created make-believe University of Northern New
Jersey].
9. Schools, Churches, and Funerals—ICE has established guidelines prohibiting enforcement actions
(arrests, interviews, searches and for purposes of immigration enforcement, surveillance) at sensitive
locations, including, but not limited to: (1) schools; (2) hospitals; (3) churches; (4) sites of funerals, weddings,
or other public religious ceremonies; and (5) public demonstrations (including marches, rallies or parades). In
addition, particular care should be exercised with any organization assisting children, pregnant women,
victims of crime or abuse or individuals with significant mental or physical disabilities. Memo, Morton, Director
ICE, Enforcement Actions at or Focused on Sensitive Locations, PN 10029.2 (Oct. 24, 2011), AILA Doc. No.
12101748. Prior approval is needed in all circumstances except where: (1) the enforcement action involves
national security or terrorism; (2) there is an imminent risk of death, violence, or physical harm to person or
property; (3) the enforcement action involves immediate arrest or pursuit of dangerous felon, terrorist, or
person presenting imminent danger to public safety; or (4) there is an imminent risk of destruction of
evidence material to ongoing criminal case. Id. at 2. See also https://www.ice.gov/doclib/ero-
outreach/pdf/10029.2-policy.pdf. CBP has taken a similar but less restrictive view when agents may conduct
enforcement activities at schools, churches, and hospitals. Memo, Aguilar, Deputy Commissioner, CBP,
“Enforcement Actions at or Near Certain Community Locations (Jan. 18, 2013), AILA Doc. No. 13022158.
When proceeding with an enforcement action under exigent circumstances, officers and agents must conduct
themselves as discreetly as possible, consistent with officer and public safety, and make every effort to limit
the time at or focused on the sensitive location. ICE, CBP, Fact Sheet: FAQs—Existing Guidance on
Enforcement Actions at or Focused on Sensitive Locations (July 15, 2016), AILA Doc. No. 16071802,
http://www.cbp.gov/border-security/sensitive-locations-faqs. Also, the sensitive locations policy does not
apply to operations at the immediate vicinity of an international border or at a courthouse. FAQs, supra. Any
individual may complain if an enforcement action is taken in violation of the sensitive location policies to ICE
ERO.INFO@ice.dhs.gov, to the Civil Liberties Division of ICE, ICE.Civil.Liberties@ice.dhs.gov, and to CBP
https://help.cbp.gov. In addition, ICE’s sensitive location policy does not prohibit SEVP from conducting site
visits to certify or recertify schools for the M and F program, which visits may be unannounced. SEVIS, ICE
Sensitive Locations Policy, 1703-05 (Mar. 14, 2017), AILA Doc. No. 17032102. Current policy remains in
effect but does not include enforcement actions within the immediate vicinity of the international border
“including its functional equivalent.” FAQs, ICE, Sensitive Locations and Courthouse Arrests (Jan. 3, 2018),
AILA Doc. No. 18013142. [recognizing that enforcement actions may take place at sensitive locations without
prior supervisory approval where there are “exigent circumstances related to national security, terrorism, or
public safety or where there is an imminent risk of destruction of evidence material to an ongoing criminal
case”].
10. Courthouses—ICE guidance permits enforcement activities inside courthouses as “wholly consistent with
longstanding law enforcement practices.” ICE Directive 11072.1, Homan, Deputy Director, Civil Immigration
Enforcement Actions Inside Courthouses (Jan. 10, 2018), AILA Doc. No. 18013140. It does not view
courthouses as a sensitive location. FAQs, ICE, Sensitive Locations and Courthouse Arrests (Jan. 3, 2018),
AILA Doc. No. 18013142[justifying it in part because local communities do not honor detainer policies]. The
actions include civil immigration enforcement actions (i.e., apprehend, arrest, interview or search) against
specific, targeted persons with criminal convictions, gang members, national security or public safety threats,
persons ordered removed who have failed to depart, and persons who have re-entered after removal. Family
members will not be Page 475 subject to arrest in a courthouse absent special circumstances such as
interfering with the ICE enforcement action or where the family member poses a threat to public safety. ICE
officers “should generally avoid enforcement actions in courthouses, or areas within courthouses that are
dedicated to non-criminal (e.g., family court or small claims court) proceedings.” If an officer wishes to
proceed in those venues he must obtain the approval of the FOD or SAC. To the extent practical the action
should take place in nonpublic areas of the courthouse, be conducted in collaboration with court security
staff, and utilize nonpublic entrances and exits. ICE Directive 11072.1, Homan, Deputy Director, Civil
Immigration Enforcement Actions Inside Courthouses (Jan. 10, 2018), AILA Doc. No. 18013140.
11. Affordable Care Act (Obamacare) Information—ICE will not use information obtained through requests
for coverage through the Marketplace or an insurance affordability program to initiate removal proceedings.
Memo, ICE, Clarification of Existing Practices Related to Certain Health Care Information (Oct. 25, 2013).
I. Subpoenas—The AG or a DHS officer has the power to subpoena attendance and testimony and the production
of documents “concerning any matter which is material and relevant to the enforcement of this Act and the
administration of the Service, and to that end may invoke the aid of any court of the United States.” INA §235(d)
(4). But INA §235(a) has been held not to give the Service authority to issue “John Doe” subpoenas where the
targets of a general investigation are known. Peters v. U.S., 853 F.2d 692 (9th Cir. 1988) [quashing subpoena
issued pursuant to §235(a) which ordered manager of labor camp to appear before INS and provide records and
testimony relating to persons residing at the camp]. Immigration Judges also have authority to issue subpoenas
for witnesses or documents, either sua sponte or upon the application of the respondent or the government. 8
CFR §§1003.35(b)(2). For a more detailed discussion regarding the IJ’s subpoena power, see in this part ¶ T.6.d
(p.570), infra.
J. Retention of Documents—ICE has set forth a policy on confiscation and return of original documents to a
person placed in removal proceedings. Memo, Torres, Acting Director, ICE (July 14, 2006), AILA Doc. No.
07100536. If the respondent is not legally entitled to possess the document, the document should be returned to
the government agency that issued it absent ICE operational need to retain it. If the respondent legally
possessed the document, it should be returned to him or her, unless ICE has an operational need for the
document in which case ICE maintains the right to retain it.
1. Undocumented and Non-LPRs—ICE has a clear need for law enforcement purposes to retain domestically
issued documents such as driver’s licenses, Social Security cards, and ID cards, when the person is
undocumented or not an LPR.
2. Lawful Permanent Residents—LPRs are entitled to evidence of permanent status and must be provided a
temporary I-551 if ICE confiscates the original. If the card expires during proceedings, ICE “shall renew
and/or re-extend the card.” If a final order is entered, ICE should confiscate the card. If relief is granted, the I-
551 should be returned. If the LPR is not detained she is “legally entitled to basic forms of identification such
as driver’s licenses and Social Security cards until an administrative final order…” and unless there is a clear
operational need to retain the document it should be returned.
3. Passports—Government may seize and retain passport for purposes of removal hearing—Onwubiko v.
U.S., 969 F.2d 1392, 1397–98 (2d Cir. 1992). The U.S. courts and ICE have set forth a procedure at the end
of a criminal case of returning U.S. passports to DOS and foreign passports to the Detention and Removal
Office of ICE. Memo, Lee, Acting Director, ICE (June 22, 2005), AILA Doc. No. 06071863; Memo, Gregoire,
Chief, Policy and Operations Division, Administrative Office of the United States Court (July 21, 2005), AILA
Doc. No. 06071865.
4. Requests by Foreign Governments—If a foreign or domestic official submits a written request for the
return of documents, ICE may surrender the documents and place copies in the A-file.
5. Fraudulent Documents—Foreign and domestic government documents that are counterfeit or were
obtained fraudulently will be confiscated and retained by ICE officials in all instances. Only authentic
documents will be considered for return. Page 476
K. Arrest
1. In General—A DHS officer has the power to arrest a person without a warrant if the officer has reason to
believe the alien is in the U.S. in violation of law or regulation and is likely to escape before a warrant can be
obtained. INA §287(a)(2), 8 USC §1357(a)(2); 8 CFR §§287.5(c)(1); 287.8(c)(2)(i)(ii). Oliva-Ramos v. U.S.
Att’y Gen., 694 F.3d 259, 285-86 (3d Cir. 2012) [reading 8 CFR §287.8(c)(2)(i) to permit warrantless arrest
only when there is probable cause]; U.S. v. Quintana, 623 F.3d 1237 (8th Cir. 2010) [when name check did
not produce information after valid traffic stop where defendant stated he was Mexican and could provide no
confirmation of lawful entry, his stop ripened into a warrantless administrative arrest for deportation
proceedings under 8 USC §1357(a)(2) and 8 CFR §287.8(c)(2)(iv)]; U.S. v. Silveus, 542 F.3d 993 (3d Cir.
2008); Davila v. U.S., 247 F.Supp.3d 650 (W.D. Pa. 2017) [ICE agent does not need to be physically present
under 1357(a)(2) to make a valid arrest but she requires probable cause to believe the person is illegally in
U.S. and that she is likely to escape prior to obtaining a warrant ]; U.S. v. Khan, 324 F.Supp.2d 1177, 1186–
87 (D. Colo. 2004) [where officers had reason to believe that LPR was in U.S. in violation of law because he
procured his residency by fraud but did not have reasonable grounds to believe he would flee, warrantless
arrest was unlawful and his subsequent Mirandized statements were suppressed]. The Speedy Trial rule may
apply in certain limited circumstances; see in this chapter ¶ VIII.QQ.12 (p.433), supra. DHS officers may also
arrest if the person has committed a felony under any law concerning the admission, exclusion or expulsion
of persons, or for any offense against the U.S., if the officer has reason to believe the person is guilty and
there is a likelihood of the person escaping. INA §287(a)(4)-(5), 8 USC §1357(a)(4)-(5); 8 CFR §287.5(c)(2)–
(3). A DHS officer may arrest if there are reasonable grounds to believe that the person committed or is
committing a felony as long as other conditions are met and the officer has completed appropriate training. 8
CFR §287.5(c)(4); U.S. v. Ayalew, 563 F.Supp.2d 409, 414–16 (N.D.N.Y. 2008) [border patrol had probable
cause to arrest where there was a sensor alert at the border, the agent saw the defendant moving southward
in an unpopulated area and the defendant did not deny crossing the border]; U.S. v. Laija-Garcia, 347
F.Supp.2d 350, 357–59 (W.D. Tex. 2004) [border patrol had authority to arrest person for what turned out to
be a drug smuggling case because the arrest met all the criteria of §287(a)(5)(B)]; Habeeb v. Castloo, 434
F.Supp.2d 899, 907 (D. Mont. 2006) [border patrol had probable cause to arrest refugee who provided officer
with a copy of his I-94 because he did not have the original I-94 as required by 8 USC §1304(e)]. The
“reasonable grounds to believe” language has been interpreted to mean probable cause under constitutional
standards. U.S. v. Cortez, 449 U.S. 411 (1981); Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980); U.S. v.
Cantu, 519 F.2d 494, 496 (7th Cir. 1975); Au Yi Lau v. INS, 445 F.2d 217, 222 (D.C. Cir. 1971). See also U.S.
v. Villegas, 495 F.3d 761, 769–71 (7th Cir. 2007) [police officer had probable cause to arrest because he
received information from another police officer that there was an immigration apprehension request for
defendant for reentering illegally after deportation]; Martinez v. Nygaard, 831 F.2d 822, 828 (9th Cir. 1987)
[detention of LPR for 20 minutes during factory raid was reasonable because person did not have green card
as required by INA §264(e)]. Murillo v. Musegades, 809 F.Supp. 487, 500 (W.D. Tex. 1992); U.S. v. Arzate-
Nunez, 18 F.3d 730, 735–36 (9th Cir. 1994) [probable cause to arrest where agents recognized person as
having been deported 8 or 9 months earlier].
2. Secondary Inspection—BIA does not regard a referral of an individual to secondary inspection as an arrest.
Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580, 585 n.5 (BIA 2011) [person placed in secondary inspection at
border and questioned is not considered to be under arrest and even if arrested was not placed in removal
proceedings and therefore no warnings before a statement are applicable under 8 CFR §287.3(c)].
3. Improper Arrests—An arrest in violation of §287(a)(2) does not by itself result in dismissal of removal
proceedings.Westover v. Reno, 202 F.3d 475, 479–80 (1st Cir. 2000) [holding that respondent had no right to
suppress removal proceedings based upon warrantless arrest but recognizing that whether evidence
gathered from the arrest in violation of the statute should be used is a more difficult question]. If person fails
to produce alien resident card after admitting LPR status, probable cause exists for arrest. U.S. v. Wright, 706
F.Supp. 1268, 1274 (N.D. Tex. 1989). But see Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 217–19 (9th
Cir. 1995) [where a person without green card is arrested then released when status verified, arrest is illegal
and use of INA §264(e) (not carrying green card) is pretextual]. Page 477
4. Arrest Warrant—An arrest warrant may be issued only by authorized persons. 8 CFR §287.5(e)(2). The
agency takes the position that an NTA in a removal proceeding should be treated as a warrant of arrest. 8
CFR §318.1; Klene v. Napolitano, 697 F.3d 666, 670 (7th Cir. 2012). But see Yith v. Nielsen, 881 F.3d 1155,
1165-59 (9th Cir. 2018) [a warrant of arrest in immigration has a clear and unambiguous meaning and cannot
be equated with a NTA when determining jurisdiction under 8 USC §1429]. If an alien is arrested, the case
shall be presented promptly “and in any event within 48 hours” for a determination of prima facie evidence of
illegality, to issue or not an NTA and warrant of arrest, and to determine whether release on bond is
appropriate. Memo, Hutchinson, Undersecretary DHS (Mar. 30, 2004), “Guidance on ICE Implementation of
Policy and Practice Changes Recommended by the Department of Justice Inspector General,” AILA Doc. No.
04041461 [reaffirming requirement of determination within 48 hours to charge individual, but giving ICE 72
hours to serve the NTA]; Memo, Chaparro, Director, ICE (May 10, 2010), “Detention of Refugees Admitted
Under INA §207 Who Have Failed to Adjust to Lawful Permanent Resident Status,” AILA Doc. No. 10100772
[reaffirming Hutchinson memo and applying 48-hour rule to make determination to issue NTA or release
refugee who has not applied for AOS]. However in the case of “emergency or other extraordinary
circumstances,” the determination shall be made “within an additional reasonable period of time.” 8 CFR
§287.3(d). An “emergency or other extraordinary circumstance” has been construed to mean: (1) a significant
infrastructure or logistical disruption because of terrorism, weather, natural catastrophe, power outage,
serious transportation emergency or serious disturbance; (2) a compelling law enforcement need such as an
immigration emergency resulting in the influx of large numbers of people being detained; or (3) individual
facts or circumstances unique to the person arrested including medical care or a compelling law enforcement
need. A noncitizen subject to the emergency exception must be served with the NTA “as soon as
practicable.” Memo, Hutchinson (Mar. 30, 2004), supra.
5. Arrest of Person Claiming USC Status—If evidence indicates a person is a USC or if the evidence
outweighs contrary evidence, the individual should not be arrested or taken into custody. For a detailed
discussion, see in this part ¶ L.3 (p.480), infra.
6. VAWA, T, or U Visa Arrests—An arrest may not be made in violation of INA §239(e). If an officer arrests a
person subject to abuse (VAWA case), trafficking (T visa), or substantial physical or mental abuse resulting in
a crime (U visa), the officer must certify that he or she has not solely relied on information from an abuser,
trafficker, or perpetrator of a crime in making the arrest and has not disclosed information obtained to anyone
(except law enforcement). In making the arrest, the officer must independently verify the information to
support the arrest and must place the certificate on the NTA. INA §239(e); 8 USC §1367; Memo, Torres,
Director of DRO and Form, Investigations, ICE (Jan. 22, 2007), AILA Doc. No. 07022210; see in this part ¶
T.4.r (p.533), infra.
7. Detention Without Charge—The USA PATRIOT Act of 2001 permits DHS to detain an individual for 7 days
without filing a charging document if the AG certifies that the individual is a terrorist. INA §236A(a)(3), (5). He
shall also be promptly informed of his rights. Id. Under the settlement in Lopez v. INS, No. 78-1912-WMB
(C.D. Cal. Aug. 20, 1992), a person arrested without a warrant who wishes to consult with counsel will be
given a minimum 2-hour period to communicate with counsel, during which time INS will cease interrogation.
INS implementation of the settlement is described in Memo, McNary, Comm., CO-242 (Sept. 4, 1992),
reprinted in 70 No. 5 Interpreter Releases 151, 160–68 (Feb. 1, 1993). The Service also placed greater
restrictions and tighter controls on arrests at schools, places of worship, funerals and religious ceremonies.
Memo, Morton, Director ICE, Enforcement Actions at or Focused on Sensitive Locations, PN 10029.2 (Oct.
24, 2011), AILA Doc. No. 12101748.
8. State and Local Authority to Arrest
8.a. Generally—After Arizona v. U.S., 567 U.S. 387, 407-10 (2012) state and local law enforcement officials
may not engage in warrantless arrests and detention of a person simply because they believe he or she
may be illegally present in the U.S. See e.g., Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451,
463-65 (4th Cir. 2013) [post-Arizona deputies’ seizure to enforce outstanding civil ICE deportation warrant
was a violation of the Fourth Amendment]; Melendres v. Arpaio, 695 F.3d 990, 1000-02 (9th Cir. 2012) [it
is a violation of the Fourth Amendment for state sheriff’s deputies, not within a §287(g) program, to detain
persons based upon reasonable Page 478 suspicion or probable cause that they are not authorized to be
in U.S.]; Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) [affirming permanent injunction in most
respects].
The former AG’s assertion that state and local police, although not compelled to do so, have the “inherent
authority to arrest individuals whose names have been entered into the FBI’s National Crime Information
Center (NCIC) database because they have both: (1) violated civil provisions of the Federal immigration
laws that render them deportable and (2) been determined by Federal authorities to pose special risks,
either because they present national security concerns or because they are absconders who have not
complied with a final order of removal or deportation.” Letter, Brown, Acting Asst. A.G., Office of Legal
Affairs, DOJ (May 7, 2003), AILA Doc. No. 03051340 (May 13, 2003) has been called into question in
Arizona v. U.S., supra. See also, Legal Advisory Opinion, Cuccinelli, AG Virginia (July 30, 2010), AILA
Doc. No. 10080268 [Va. Law enforcement officers, including conservation officers may inquire into
immigration status of persons stopped or arrested but persons tasked with zoning enforcement may not].
The notion of “inherent authority” to arrest and detain undocumented persons, rejected in previous OLC
memoranda, has been seriously undermined in Arizona v. U.S., 567 U.S. 387, 407-10 (2012) [the Court
enjoined section 6 of SB 1070 that allowed warrantless arrests of aliens believed to be removable
because allowing state officers to act unilaterally, as opposed to act pursuant to an INA §287(g) program,
permits the state law to stand as an obstacle to federal authority]. In Arizona, despite holding that the stop
provision was not preempted until interpreted by state law, the Court also noted that even “[d]etaining
individuals solely to verify their immigration status would raise constitutional concerns.” Pursuant to IIRIRA
§642, however, local and state entities or officials are prohibited from restricting any government entity or
official from sending to or receiving from DHS any information “regarding the citizenship or immigration
status, lawful or unlawful, of any individual.” 8 USC §1373; City of New York v. U.S., 179 F.3d 29 (2d Cir.
1999). See e.g., U.S. v. Argueta-Mejia, 166 F.Supp.3d 1216, 1222-29 (D. Colo. 2014), aff’d, 615 F.App’x
485 (10th Cir. 2015) [motion to suppress granted where local police officer had no authority to arrest
defendant for an immigration violation and court rejected INA §287(g)(10) argument]; Sanchez v.
Sessions, 885 F.3d 782 (4th Cir. 2018). See also City of El Cenizo v. Texas, No. 17-50762, 2018 WL
2121427 (5th Cir. May 8, 2018), the Fifth Circuit upheld Sections 752.053(a)(1)-(2) of Texas SB 4 that
forbid any policy or pattern or practice that “prohibits or materially limits” the enforcement of immigration
laws. The court found that these were not unconstitutionally vague. The court also upheld the status-
inquiry provision (Section 752.053(b)(1)) that forbids local entities from preventing officers from “inquiring
into the immigration status of a person under a lawful detention or under arrest” and upheld the
information-sharing provision (Section 752.053(b)(2)) that forbids local entities from preventing officers
from maintaining immigration-status information and sharing it with federal agencies. The court rejected
the challenge to these provisions finding they do not conflict with INA §287(g).
8.b. 287(g) Agreements—The AG may enter into a written agreement with a state or political subdivision of
a state to permit an officer or employee of the state or subdivision to perform functions of an immigration
officer related to the investigation, apprehension, or detention of aliens. INA §287(g)(1), 8 USC §1357(g)
(1). The state or political subdivision shall pay all expenses. The officers are not considered federal
employees, but such persons “shall be considered to be acting under color of Federal authority for
purposes of determining the liability, and immunity from suit, … in a civil action brought under Federal or
State law.” INA §§287(g)(4), (5), and (8). For a list of the §287(g) agreements see
http://www.ice.gov/news/library/factsheets/287g.htm#signed-moa. For a more generic Memorandum of
Agreement between ICE and a state or local law enforcement agency, see MOA, AILA Doc. No.
09072369. As of February 2018, ICE had 76 MOAs in 20 states. See https://www.ice.gov/287g.
8.c. Mass Influx—The AG has promulgated regulations that authorize state and local law enforcement
officers to be deputized as immigration enforcement officers during a “mass influx of aliens.” INA §103(a)
(10); 28 CFR §§65.83–.84.
8.d. National Guard Agreement—DOJ and DOD have entered into a cooperative arrangement allowing the
National Guard to assist DHS with border patrol on the northern and southern borders. “National Guard to
Assist with Border Patrol,” AILA Doc. No. 02030432. Page 479
8.e. CBP Language Assistance—If a federal, state, or local law enforcement organization, other than
another component of DHS, requests CBP language translation assistance, absent any other
circumstances, “those requests should be referred to a list of available local and national translations
services…” Memo, Aguilar, Deputy Comm., CBP, Guidance on Providing Language Assistance to Other
Law Enforcement Organizations (Nov. 21, 2012), AILA Doc. No. 13010352.
8.f. Judicial Challenges to §287(g) Program—Albarran v. Morton, 821 F.Supp.2d 1327 (N.D. Ga. 2011)
[Hispanic plaintiffs challenging INA §287(g) investigation lacked standing because they failed to
demonstrate that in the future they would likely be subject to the effects of §287(g)].
9. FBI Given Authority to Make Immigration Arrests—FBI agents have been authorized by the AG to arrest
noncitizens without a warrant under INA §287, 8 USC §1357 (reason to believe person in U.S. in violation of
immigration laws) and to: (1) investigate, determine the location of and apprehend any alien who is in the
U.S. in violation of the INA or any law or regulation regarding immigration status, or (2) enforce any
requirements of the INA and regulations. Memo, GC, FBI, Delegation of Authority to the FBI to Exercise the
Powers and Duties of Immigration Officers (Feb. 26, 2003), AILA Doc. No. 03100915.
10. Military Officers and Others Not Authorized to Arrest—When a person, who is not authorized by statute
or regulation to arrest an undocumented person does so, his or her failure to comply with DHS procedures
and regulations, in the view of one court, does not result in suppression of the evidence. Samayoa-Martinez
v. Holder, 558 F.3d 897 (9th Cir. 2009) [denying suppression of I-213 and statements from petitioners who
were first arrested by military officer because the officer was not agent of legacy INS].
L. Detention
1. Release on Bond—Persons subject to removal are generally entitled to release on bond or conditional
parole unless they are subject to mandatory detention on criminal or terrorist grounds, or are an “arriving
alien.” See in this chapter “Detention of Inadmissible Persons,” Section IV.L (p. 232), supra. However, bond
may be denied in the discretion of DHS/AG. INA §236(a), 8 USC §1226(a); Matter of Patel, 15 I&N Dec. 666
(BIA 1976) [presumption of release absent specific national security, danger or risk of flight]; Matter of
Siniauskas, 27 I&N Dec. 207 (BIA 2018) [respondent with 3 convictions for DUI between 2006-07 and
arrested for a fourth in 2017 where some involved accidents did not meet his burden of establishing he is not
a danger to the community and his $25,000 bond was overturned in favor of no bond]; Matter of Urena, 25
I&N Dec. 140 (BIA 2009) [IJ should only set a bond if he first determines detainee does not present a danger
to the community]; Matter of Fatahi, 26 I&N Dec. 791 (BIA 2016) [circumstantial evidence coupled with
misrepresentation by the respondent was sufficient to deny bond in national security case]; Matter of Guerra,
24 I&N Dec. 37 (BIA 2006) [non–criminal alien bears the burden of establishing “that he or she does not
present a danger to persons or property, is not a threat to the national security, and does not pose a risk of
flight”]; Carlson v. Landon, 342 U.S. 524 (1952) [upholding discretionary denial of bond where security
grounds were raised]. The inquiry is generally whether a person is a danger, national security threat, or
poses a level of flight risk that requires their detention. Under agency regulations and case law, the
noncitizen bears the burden of showing they pose no danger to the community and are likely to appear for
removal proceedings in order to be released. See 8 CFR §§236.1(c)(8), 1236.1(c)(8); Matter of Adeniji, 22
I&N Dec. 1102, 1111-13 (BIA 1999). This inquiry must be factually based and not simply by virtue of the
person’s status. Carlisle v. Landon, 73 S.Ct. 1179 (1953) (Douglas, J.); Yanish v. Barber, 73 S.Ct. 1105
(1953) (Douglas, J.); Podolski v. Baird, 94 F.Supp. 294 (E.D. Mich. 1950). But see Matter of D-J-, 23 I&N
Dec. 572 (AG 2003) [AG’s discretion to detain is not limited to danger and flight risk and justifying detention
of Haitian asylum seekers based on government’s asserted national security interest in deterring mass
migration of Haitians by boat]; compare R.I.L-R v. Johnson, 80 F.Supp.3d 164 (D.D.C. 2015) [holding that
general deterrence is not a permissible basis for detention]. See also Turkmen v. Ashcroft, 589 F.3d 542,
549–50 (2d Cir. 2009) [neither due process nor equal protection were violated where plaintiffs claimed they
were singled out and detained for terrorism reasons and because they were Muslim and not for genuine
immigration purposes despite their illegal status]. DHS must decide within 48 hours of arrest or, in the case of
an emergency or other extraordinary circumstance (e.g., the bombing of the World Trade Center), “within an
additional reasonable period of time,” whether Page 480 the person will remain in custody or be released. 8
CFR §287.3(d). Before the entry of a final order of deportation, a party generally may seek release on bond
under DHS/AG regulations or in a federal court habeas action. Where a person is neither a flight risk nor a
danger, it would violate due process to fail to consider his financial ability to post bond or alternative
conditions for release. Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) [affirming injunction requiring ICE
and IJs to consider financial ability to obtain bond and alternative conditions to release when making bond
determinations]. See in this chapter Section IV.L (p. 232), supra.
2. Prosecutorial Discretion in Detention
2.a. In General—The former policy of exercising prosecutorial discretion in release addressed in Memo,
Johnson, Sec. DHS, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants
(Nov. 20, 2014), AILA Doc. No. 14112004 has been rescinded. The prior policy suggested that FODs
should “not expend detention resources” on the following categories of persons: (i) persons known to be
suffering from serious physical or mental illness; (ii) persons who are disabled, elderly, pregnant or
nursing; (iii) persons who are primary caretakers of children or an infirm person; (iv) persons whose
detention is not otherwise in the public interest. The presumption against detaining pregnant women has
changed and is no longer in effect. ICE, Directive 11032.3 Identification and Monitoring of Pregnant
Detainees (Dec. 14, 2017), AILA Doc. No. 18032931. ICE, FAQs, Identification and Monitoring of
Pregnant Detainees (Mar. 30, 2018), AILA Doc. No. 18033060[“ICE has ended the presumption of release
for all pregnant detainees”]. The former policy was reflected in Memo, Homan, Exec. Assoc. Dir. ICE,
Identification and Monitoring of Pregnant Detainees (Aug. 15, 2016), AILA Doc. No. 16081635.
The current policy is expressed in various EOs and DHS memos opposing the policy of “catch and
release.” EO 13767 Sect. 6 (Jan. 25, 2017), 82 FR 8793, 8795 (Jan. 30, 2017), Memo, Kelly, Sec. DHS,
Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb.
20, 2017), AILA Doc. No. 17021831; Memo, Albance, ICE Ex. Assoc. Director, Implementing the
President’s Border Security and Interior Immigration Enforcement Policies (Feb. 21, 2017), ¶B, AILA Doc.
No. 17070730. The goal under the “catch and release” banner is a concerted effort to increase
incarceration, not release anyone at the border or interior by expanding detention facilities, to increase
USCIS officers to do credible fear interviews, to pressure USCIS officers by maintaining statistics on how
many credible fear determinations they grant, and to pressure other countries to take their citizens back
expeditiously. Memo, White House, Ending Catch and Release (Apr. 6, 2018), 83 FR 16179 (Apr. 13,
2018). The current policy is to “work to detain aliens pending a final determination of whether they will be
removed from the United States.” Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s
Border Security and Interior Immigration Enforcement Policies (Feb. 21, 2017), ¶A-C, AILA Doc. No.
17070730[discussing enforcement priorities and the goal of ending catch and release].
2.b. Defining Serious Illness—A prior ICE memo defined the scope of cases involving extreme or severe
medical conditions where prosecutorial discretion may be exercised. Some examples of medical
conditions that would trigger or flag the need to consider prosecutorial discretion include: (i) advanced
chronic conditions with complications such as dialysis with liver disease; (ii) HIV/AIDS, cancer, or
advanced immuno-compromised diseases; (iii) pending or recent organ transplants; (iv) end-
stage/terminal illnesses; (v) paraplegics/multi-limb amputees confined to wheelchairs; (vi) multi-
degenerative diseases in the very elderly; (vii) extreme mental retardation, mental illness or mental
incompetence; (viii) blindness or (ix) significant pregnancy complications. Memo, Torres, Director, ICE,
Discretion in Cases of Extreme or Severe Medical Concern (Dec. 11, 2006), AILA Doc. No. 09111678.
2.c. Facilitating Parental Interests—ICE was formerly charged with considering the interests of parents/legal
guardians of children, whether or not the children are USCs or LPRs, in making decisions regarding
prosecutorial discretion, continued physical custody, location of detainee, child visitation, and
arrangements for appearance in parental termination and other juvenile proceedings, including the parole
into the U.S. of lawfully deported parents. Memo, Sandweg, Acting Director, ICE, 11064.1, Facilitating
Parental Interests in the Course of Civil Immigration Enforcement Activities (Aug. 23, 2013), AILA Doc.
No. 13082642. This memo has been Page 481 withdrawn. ICE Policy 11064.2, Detention and Removal of
Alien Parents or Legal Guardians (Aug. 29, 2017), AILA Doc. No. 18042302[the new memo takes a far
more limited view toward assisting parents of minor children who may be in parental termination
proceedings or in separate custody in another facility. It contemplates the separation of children from their
parents but allows for the possibility that parents, under limited circumstances, may visit their children and
participate in proceedings affecting the child].
2.d. Detention Space Not an Issue—Detention capacity should not be a determinative factor in the release
of individuals with serious criminal records, although there may be limitations on detention capacity in
some circumstances. Saldana, ICE Announces Enhanced Oversight and Release Procedures for Custody
Determinations Involving Detainees with Criminal Convictions (Mar. 19, 2015), AILA Doc. No. 15031960.
3. Prosecutor’s Responsibility upon Claim of USC—If evidence indicates a person is a USC or if the
evidence of U.S. citizenship outweighs contrary evidence, the individual should not be arrested or taken into
custody. If an individual already in custody claims to be a USC, an officer must immediately examine the
merits of the claim. Within 24 hours, absent extraordinary circumstances, DRO with assistance from the
Office of Principal Legal Advisor must submit a memorandum regarding the claim to citizenship to
Headquarters who should respond in 24 hours. If the individual’s claim is credible on its face, or if the
investigation results in probative evidence that the detainee is a USC, he should be released. But ICE may
take a statement from the individual under oath that it can later use for prosecution under 18 USC §911, if it
was a false claim to USC. Memo, Morton, Ass’t Sec., ICE, Superseding Guidance on Reporting and
Investigating Claims to United States Citizenship, Policy No. 16001.1, FEA No. 045-01 (Nov. 19, 2009), at 2.
reprinted in 15 Bender’s Immigr. Bull. 438, 464–66 (Mar. 15, 2010).
4. Release of Detainee with I-130 or Other Pending Application or Petition with Current Priority Date—
See in this part ¶ T.2.i (p.519), infra.
5. Mandatory Detention for Aggravated Felons, Other Persons with Convictions, and Terrorists—See in
this part “Special Rules…,” Section R (p.502), infra.
6. Detention as a Condition of Voluntary Departure—See Chapter 8 ¶ IV.B.6.e (p.1638), infra.
7. Location of Detention—DHS has broad discretion to choose the situs of detention. Sasso v. Milhollan, 735
F.Supp. 1045 (S.D. Fla. 1990) [former 8 USC §1252(c) (now INA §241(g), 8 USC §1231(g)) confers broad
discretion on AG]; Justiz-Cepero v. INS, 882 F.Supp. 1582 (D. Kan. 1995). The Bureau of Prisons also has
broad discretion to determine the situs of incarceration of persons subject to deportation, including local
contract jails and prisons. Lato v. U.S. Att’y Gen., 773 F.Supp. 973 (W.D. Tex. 1991). State officials can ask
DHS to pay for incarceration of undocumented prisoners or take custody of them. INA §241(i). For a listing of
ICE detention facilities, see http://www.ice.gov/detention-facilities.
8. Transfer of Detainees—ICE initially established standards and procedures for transfer of ICE detainees.
See ICE Transfer Standards (June 16, 2004), AILA Doc. No. 04092167. These standards and procedures
have been updated. ICE, Detainee Transfers, Policy 11022.1 (Jan. 4, 2012), AILA Doc. No. 12020260.
8.a. Persons Who Should Not Be Transferred—Unless a transfer is deemed necessary for the reasons
stated below, ICE will not transfer a detainee where there is documentation to support the following: (a)
immediate family within the area of responsibility of a Field Office Director (“AOR”); (b) an attorney of
record with a G-28 on file in the AOR; (c) pending or on-going removal proceedings, where notification of
such proceedings has been given, within the AOR; (d) detainee granted bond or has been scheduled for a
bond hearing; and (e) Orantes Class member who are not represented by counsel for first seven days in
order to obtain counsel. A G-28 no longer has to be signed by the client for ICE purposes. Minutes, ICE
AILA Liaison, Fall Meeting (Dec. 17, 2013), AILA Doc. No. 14050762.
8.b. Exception to Nontransfer Policy If Deemed Necessary—A transfer may be deemed necessary however
for any of the following reasons: (1) to provide appropriate medical or mental health care to the detainee;
(2) to fulfill an approve transfer request by the detainee; (3) for safety and security of the detainee, other
detainees or detention or ICE personnel; (4) for the convenience Page 482 of ICE when the EOIR venue
is different than the detention venue; (5) to transfer to a more appropriate facility based on the detainee’s
individual circumstances and risk factors; (6) termination of facility use due to failure to meet detention
standards or other emergent situations; and (7) to prevent overcrowding but in such cases detainees who
do not meet the nontransfer standards above should be identified first for transfer. Before a transfer may
be made under any of these exceptions, the transfer must be approved by an Assistant FOD or higher
and the reasons must be documented in the A-file.
8.c. Procedures and Notification—ICE will notify detainee and his attorney but is not required to notify family
members or other third parties. An attorney with a G-28 on file must be notified of the transfer and the
reasons for it as soon as practicable on the day of the transfer but no later than 24 hours after it occurs.
The attorney must be given the name, location, and telephone number of the new facility. Notification may
be delayed if there are special security concerns but only for the period necessary to justify those
concerns. The detainee will also be notified in a language or manner he can understand immediately prior
to the transfer that he is being transferred and not removed. At the time of transfer, ICE will provide the
detainee, in writing, the name, address and telephone number of the new facility and ICE will make sure
the detainee acknowledges, in writing, that he has received the information. The specific plans and
schedule for the move will not be discussed with the detainee, but the detainee will be informed that he
may place a domestic phone call, at no expense to him, upon arrival in the new facility. Following
notification of the transfer the detainee: (i) is not permitted to make or receive telephone calls until
reaching the new facility and (ii) may not have contact with other detainees until reaching the new facility.
If the detainee has pending proceedings before EOIR, ICE must submit an I-830 change of address form.
8.d. Cases—Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) [challenge to transfer as violating right to counsel
barred under INA §242(b)(9) since claims could be brought in petition for review of a removal order];
Garcia v. DHS, 657 F.Supp.2d 403, 409–10 (W.D.N.Y. 2009), vacated on other grounds, 669 F.3d 91 (2d
Cir. 2011) [no jurisdiction under INA §242(a)(2)(B) to consider request to transfer detainee closer to his
family as the decision is in the discretion of agency]; Calla-Collado v. U.S. Att’y Gen., 663 F.3d 680, 685
(3d Cir. 2011) [transfer to Louisiana where petitioner had no contacts and was forced to obtain less
effective counsel did not violate his constitutional or other rights].
9. Conditions of Confinement—See in this chapter ¶ IV.M.25 (p.245), supra.
10. DNA Sampling—42 USC §14135a; 28 CFR §28.12(b); 73 FR 74932, 74938-39 (Dec. 10, 2008). DHS is
authorized to take a DNA sample from non-LPR aliens “who are detained under the authority of the United
States.” The samples may be limited to individuals from whom the agency collects fingerprints upon arrest or
to any other exception approved by the AG. DNA sample collection may not be had from: (1) LPRs and
others lawfully in U.S.; (2) persons held at a port of entry during consideration of admissibility and not subject
to further detention or proceedings; (3) persons held in connection with maritime interdiction; and (4) other
persons with respect to whom the Sec. of DHS in consultation with the AG determines that collection is not
feasible because of operational exigencies or resource limitations. 28 CFR §28.12(b)(1)-(4).
11. Strip Search and View of Detainees—The Fourth Amendment permits strip searches upon admission to
jail. Florence v. Bd. of Chosen Freeholders of City of Burlington, 566 U.S. 318 (2012). However, ICE policy
dictates that ICE detainees, absent reasonable suspicion, shall not be strip searched upon admission to a
detention facility including Service Processing Centers (SPCs), Contract Detention Facilities (CDFs) and
those locations having Intergovernmental Service Agreements (IGSAs) with ICE. Nor may ICE officers,
absent reasonable suspicion, visually observe a detainee while changing clothing and showering. Memo,
Torres, Director, ICE, Changing Notice: Admission and Release–National Detention Standard Strip Search
Policy (Oct. 15, 2007), AILA Doc. No. 09050121. ICE updated its guidelines for strip searches in the 2011
Performance-Based National Detention Standards ¶2.10,AILA Doc. No. 12022839. A strip search shall be
conducted only when properly authorized by a supervisor and only in the event that there is a reasonable
suspicion that contraband may be concealed on the person, or when an officer has reasonable suspicion that
a good opportunity for concealment has occurred, or as may be outlined in facility procedures for post-
contact visits. Before strip-searching a detainee, an officer shall first attempt to resolve his or her suspicions
Page 483 through less intrusive means. Absent an emergency, an officer of the same gender as the detainee
shall perform the search. Special care should be taken to insure that transgender detainees are searched in
private. Additionally, DHS has issued regulations under the Prison Rape Elimination Act that, inter alia, limit
cross-gender pat-down searches, with more rigorous limits for female detainees; prohibit cross-gender strip
searches and cross-gender visual body cavity searches except in exigent circumstances; and limit the ability
of staff to engage in cross-gender viewing of detainees showering, performing bodily functions, and changing
clothing. 6 CFR §115.15.
M. Release of Identity and Information Relating to Detainees—See in this chapter ¶ IV.M.24 (p.244), supra.
N. Bonds [INA §236(a), 8 USC §1226(a)]
1. Generally—The INA provides for the release on bond or conditional parole of all persons except those
deemed subject to mandatory detention under INA §236(c) as criminals or terrorists, or “arriving aliens.” See
in this chapter “Detention of Inadmissible Persons,” Section IV.L (p.232), supra. The AG may grant a
minimum bond of $1,500, or may grant conditional parole. The AG may at any time revoke a bond or parole
and re-arrest the person. INA §236(b). If released on bond, a bondsman or obligor is required on the bond.
An obligor may designate an attorney by the use of an I-312 form to accept, on the obligor’s behalf, the return
of cash or other securities used to secure the bond, when the bond is cancelled or the performance
completed. Interest is paid on a bond at a rate set by the federal government every quarter. See e.g., 82 FR
32444 (July 13, 2017) [setting interest at .92% for period July 1, 2017 to Sept. 30, 2017].
2. Maintenance of Status and Departure Bond—Bond of nonimmigrants to ensure return to country of origin.
3. Delivery Bond—Applies to person arrested and is conditioned on promise of person to appear at each
hearing or when requested by DHS. Where alien appeared one day late because he was ill, bond was
considered breached. Matter of Arbelaez-Naranjo, 18 I&N Dec. 403 (RC 1983). See also in this section
“Breach of Bond,” ¶ 11 (p.493), infra.
4. Public Charge Bond—To ensure that an individual is not a public charge in the U.S.
5. Standards, Criteria, and Conditions of Bond [8 CFR §§103.6(a)(2)(i), 1003.19(a)–(c)]
5.a. Bond Should Be Granted—Bond should be granted unless there is a finding that the individual is a
threat to public safety or national security or is likely to abscond, Matter of Patel, 15 I&N Dec. 666 (BIA
1976); Matter of Daryoush, 18 I&N Dec. 352 (BIA 1982). The BIA has found that the detainee has the
burden to demonstrate that his “release would not pose a danger to property or persons.” 8 CFR
§§236.1(c)(8), 1236.1(c)(8) [purporting to shift Matter of Patel presumption of release to presumption of
detention]; Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018) [respondent with 3 convictions for DUI
between 2006-07 and arrested for a fourth in 2017 where some involved accidents did not meet his
burden of establishing he is not a danger to the community and his $25,000 bond was overturned in favor
of no bond]; Matter of Urena, 25 I&N Dec. 140 (BIA 2009) [clarifying that IJ may not release a person who
has not met his burden of demonstrating that he would not pose a danger to property or persons]. See
also Matter of D-J-, 23 I&N Dec. 572 (AG 2003) [AG’s discretion to detain not limited to danger and flight
risk; justifying detention of Haitian asylum seekers based on the government’s asserted national security
interest in deterring mass migration of Haitians by boat]. But see R.I.L-R v. Johnson, 80 F.Supp.3d 164
(D.D.C. 2015)[holding that general deterrence is not a permissible basis for detention].
A bond hearing may nevertheless be required as a constitutional matter if a person is facing prolonged
detention in which case it is the government that would bear the burden of justifying continued
imprisonment. Chavez-Alvarez v. Warden, York Cnty. Prison, 783 F.3d 469 (3d Cir. 2015) [time between 6
months and one year requires an individualized hearing to determine whether continue detention in the
particular case is necessary to achieve the goals of the statute and the conduct of either the government
or the respondent cannot dictate a conclusion that detention is reasonable]; Diop v. ICE, 656 F.3d 221 (3d
Cir. 2011) [adopting a case-by-case Page 484 approach as to unreasonableness of mandatory detention
without a bond hearing]. In addition, the Second and Ninth Circuits have held that the standard of proof at
a prolonged detention hearing is “clear and convincing evidence” that the person detained is a flight risk or
a danger to the community. Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015); Singh v. Holder, 638 F.3d
1196, 1203-05 (9th Cir. 2011). However, as a matter of statutory construction, INA §235(b), §236(a), and
§236(c) do not compel a bond hearing even in the face of prolonged detention. Jennings v. Rodriguez,
583 U.S. __, 138 S.Ct. 830 (2018) [INA §235(b), §236(a), and §236(c), cannot be plausibly read to include
a prohibition against prolonged detention (more than 6 months) and to include a requirement that the
government must provide by clear and convincing evidence that detention remains justified; remanded for
an analysis of constitutional and class claims].
5.b. General Criteria for Bond—General criteria for bond under Matter of Patel and other cases are (a)
whether the applicant has a fixed address in the U.S.; (b) length of residence in U.S.; (c) local family ties
and whether the ties may entitle the applicant to reside in the U.S.; (d) record of appearances in court; (e)
employment history or lack of employment; (f) criminal record, including the extensiveness of criminal
activity, the recent nature of such activity and the seriousness of the offenses; (g) pending criminal
charges; (h) history of immigration violations; (i) attempts to flee prosecution or otherwise escape from
authorities; (j) manner of entry; (k) membership in community organization; (l) immoral acts or
participation in subversive activities; and (m) financial ability to post bond. The Board also relies on similar
criteria in Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). See also Matter of San Martin, 15 I&N Dec.
167 (BIA 1974); Singh v. Holder, 638 F.3d 1196, 1206-09 (9th Cir. 2011) [relying on factors in Matter of
Guerra that the petitioner’s criminal history alone was not sufficient to justify denial of bond in case of
prolonged detention but rejecting need for government to establish that detainee is “special danger” to
warrant detention]; U.S. ex rel. Barbour v. District Director, INS, 491 F.2d 573 (5th Cir. 1974); The
determination of the IJ as to custody status or bond “may be based upon any information that is available
to the immigration judge or that is presented to him or her by the alien or the Service.” 8 CFR
§1003.19(d). The IJ has broad discretion in deciding factors to consider. Matter of Guerra, supra [IJ
properly considered pending criminal charges absent a conviction when determining if respondent was a
danger to others]. The IJ cannot base the decision on the inability of the AG to execute a final order of
removal. Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991). But see Ly v. Hansen, 351 F.3d 263 (6th Cir.
2003) [if detainee is from a country that does not accept removals, then the person has a strong argument
for release]; accord Owino v. Napolitano, 575 F.3d 952 (9th Cir. 2009).A change in the respondent’s
circumstances, such as losing his deportation case may warrant an increase in bond. Matter of Sugay, 17
I&N Dec. 637 (BIA 1981). And a person facing serious criminal charges in another country in a proceeding
whose fairness he doubts, can, without more, be denied bond. Matter of Khalifah, 21 I&N Dec. 107 (BIA
1995) [person deemed to be terrorist]. In addition, where respondent has no relief available and is,
therefore, a flight risk, and has a serious criminal history rendering him a threat, the BIA has upheld denial
of bond. Matter of Ellis, 20 I&N Dec. 641 (BIA 1993).
5.c. Length of Detention—Jennings v. Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018) [INA §235(b), §236(a),
and §236(c), cannot be plausibly read to include a prohibition against prolonged detention (more than 6
months) and to include a requirement that the government must provide by clear and convincing evidence
that detention remains justified; remanded for an analysis of constitutional and class claims].
5.d. Financial Ability to Post Bond—The Ninth Circuit has also ruled that both ICE and IJs must consider
financial ability to obtain bond as well as alternative conditions of release so that incarcerated persons do
not remain in detention due simply to their inability to post bond. Hernandez v. Sessions, 872 F.3d 976
(9th Cir. 2017) [affirming injunction requiring ICE and IJs to consider financial ability to obtain bond and
alternative conditions to release when making bond determinations]. See also Lopez-Valenzuela v.
Arpaio, 770 F.3d 772 (9th Cir. 2014) (en banc) [Arizona constitutional provision prohibiting bail for
undocumented defendants violated substantive due process]; Abdi v. Nielsen, 287 F.Supp.3d 327
(W.D.N.Y. 2018) [ability to pay and alternative conditions of release must be considered in setting bond at
prolonged detention hearings]. Page 485
5.e. State Statute Denying Bond to Undocumented Person—Lopez-Matias v. State, 504 SW3d 716 (Mo
2016) (en banc) [Mo. Ann. Stat. §544.470.2 requiring person who cannot prove lawful presence in U.S. to
remain in custody without bond violates Art. 1 Sec. 20 of the Missouri Constitution].
5.f. Conditions of Release in Addition to Bond—Courts have long restricted the AG’s authority to place
certain conditions on a person’s release that penalize the detainee or are not related to the purpose of
insuring removal. Barton v. Sentner, 353 U.S. 963 (1957) [cannot condition release on penalizing detainee
if she violated the Smith Act or if she associated with communists]; U.S. v. Witkovich, 353 U.S. 194 (1957)
[cannot force person to give INS information on political activities or associations as a condition of
release]. A no-work condition on bond, however, has been determined to be within the statutory authority
of the AG, so long as it only prohibits unauthorized employment. INS v. National Ctr. for Immigrants’
Rights, Inc., 502 U.S. 183 (1991) [former INA §241(a)(1)]. Under IIRIRA, a person released will not be
given authorization to work unless they are an LPR or would otherwise (without regard to removal
proceedings) be given work authorization. INA §236(a)(3), 8 USC §1226(a)(3).
5.g. Risk Classification Assessment—ICE now conducts a Risk Classification Assessment (RCA) that seeks
to identify and categorize the risk to public safety and the risk of flight posed by a person arrested by ICE
for immigration violations. After making the RCA, ICE may rely on one of the alternative forms of
incarceration, agree to a modest bond or maintain a no-release position. For more information regarding
RCA, see in this chapter ¶ IV.M.10 (p.237), supra.
5.h. Alternatives to Physical Incarceration—ICE maintains what it calls alternatives to detention in the form
of three programs: (1) Intensive Supervision Appearance Program (ISAP) [private contractors monitoring
respondents through telephonic reporting, radio frequency, GPS (ankle bracelets) and unannounced
home visits]; (2) Enhanced Supervision/Reporting (ESR) [private company using same methods as ISAP];
and (3) Electronic Monitoring [operated by ICE with same methods]. ICE, Alternatives to Detention for ICE
Detainees (Oct. 23, 2009), AILA Doc. No. 09110666. ICE has informed its field offices that where a
person is represented and requests his attorney be present for an interview related to alternatives to
detention, “they may allow attorneys to be present in the exercise of discretion” although it is “not required
by law.” Letter, Alcantar, Field Office Director, ICE, San Francisco Field Office to Ramirez (May 13, 2008),
AILA Doc. No. 08051564. In certain states private religious monitoring companies, such as Nexus
Programs, Inc. in Virginia, has parallel GPS tracking programs for person who are seeking release from
state custody and will maintain their monitoring when the person is transferred to ICE custody. The private
GPS monitoring is often initiated at the request of the state judge or the bail bondsmen. Nexus Programs
Inc. GPS Program, AILA Doc. No. 1605173 [bond and NEXUS Program documents].
5.i. IJ Has Jurisdiction to Reconsider ISAP, House Arrest and Other Conditions of Bond—An IJ may not
refuse to consider nonmonetary conditions of bond. Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009)
[IJ has authority to reconsider ISAP or house arrest where motion to ameliorate the terms of release is
timely filed within 7 days]; Rivera v. Holder, 307 F.R.D. 539 (W.D. Wash. 2015) [holding that IJs must
consider individuals detained under INA §236(a), 8 USC §1226(a), for release on conditional parole as an
alternative to release on a monetary bond]; Cevallos v. Ashcroft, No. 04-civ-23210-SEITZ (S.D. Fla. 2005)
[granting injunctive and habeas relief ordering the IJ to give respondent a bond hearing where matters
besides a monetary bond would be considered; IJ initially refused to consider evidence or testimony
regarding nonmonetary aspects of bond, including use of an electronic bracelet].
5.j. Regulations Governing Release—Persons who are not subject to mandatory detention, including
persons with criminal convictions that do not subject them to mandatory detention, are entitled to
discretionary release under 8 CFR §§236.1(c)(8), 1236.1(c)(8) if they can demonstrate that “release would
not pose a danger to property or persons, and that [they] are likely to appear for any future proceeding.”
Matter of Adeniji, 22 I&N Dec. 1102, 1111–13 (BIA 1999) [endorsing test similar to Matter of Drysdale, 20
I&N Dec. 815 (BIA 1994)]. Page 486
6. Bond Procedure
6.a. DD initially sets bond. 8 CFR §§236.1(c), 1236.1(c). A notice of custody determination is submitted on
Form I-286 and a bond, if granted, is posted on Form I-352. ERO, ICE, Bond Management Handbook
(Aug. 19, 2014), at 3-4, AILA Doc. No. 16051730. Must state reasons for decision. Matter of Daryoush, 18
I&N Dec. 352 (BIA 1982). No right to discovery. Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995). But see
Dent v. Holder, 627 F.3d 365, 371-76 (9th Cir. 2010) [person in removal proceedings should “routinely”
receive his A file pursuant to 8 USC §1229a(c)(2)(B) because the statute requires the AG to produce to
the respondent “any other records and documents, not consider … to be confidential”]. After initial
determination by ICE, application for redetermination may be made to IJ. 8 CFR §§1003.19, 236.1(d),
1236.1(d). The IJ cannot make a bond determination sua sponte. Matter of P-C-M-, 20 I&N Dec. 432 (BIA
1991). However, no charging document is required to be filed with the immigration court to commence
bond proceedings. 8 CFR §1003.14(a). A bond request may be made in writing or orally and can be held
telephonically. 8 CFR §1003.19(b); EOIR, Uniform Docketing System Manual (Dec. 2013) at I-12, III-2,
AILA Doc. No. 14100644.The bond hearing is “separate and apart from, and shall form no part of, any
deportation or removal hearing.” 8 CFR §1003.19(d); Matter of R-S-H-, 23 I&N Dec. 629, 630 n.7 (BIA
2003) [“We note that bond and removal are distinctly separate proceedings”]; Al-Siddiqi v. Achim, 531
F.3d 490, 494–95 (7th Cir. 2008) [reopening of merits proceedings did not give DHS the authority to “redo
its initial bond redetermination”]. However, the same IJ can hear both the bond and merits hearing. Flores-
Leon v. INS, 272 F.3d 433, 440 (7th Cir. 2001) [rejecting recusal motion where IJ, notwithstanding former
3.19(d), heard both the bond and merits hearing]. Evidentiary standards at the bond hearing may be more
informal than at the removal hearing. Singh v. Holder, 638 F.3d 1196, 1209-10 (9th Cir. 2011) [introduction
of RAP sheet at bond hearing contrary to DHS regulation for removal hearing did not violate regulation or
the constitution]. But the IJ is barred from using information at the removal hearing obtained at the bond
hearing. Joseph v. Holder, 600 F.3d 1235, 1240-43 (9th Cir. 2010) [IJ could not use her notes from bond
hearing in removal proceedings to demonstrate lack of credibility]. But see Zivkovic v. Holder, 724 F.3d
894, 911 (7th Cir. 2013) [it was not error for IJ to consider evidence from the bond proceedings at the
removal hearing]. The reverse is not true and information from the merits hearing may be used at a bond
hearing in the view of one court. Dela Cruz v. Napolitano, 764 F.Supp.2d 1197, 1204 (S.D. Cal. 2011). The
IJ may give DHS additional time to conduct a security check before setting the bond hearing. 8 CFR
§1003.47(k). A contemporaneous audio record or transcript of a bond hearing must be kept as a
constitutional matter in cases involving prolonged detention. Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir.
2011), [court rejected procedure under Matter of Chirinos, 16 I&N Dec. 276 (BIA 1977) that only a written
memorandum decision was sufficient and found that there must be an audio tape or transcript of the bond
proceeding]. As long as the person is in DHS custody and has not received a final administrative removal
order from the BIA, a party may make successive applications for bond to the IJ without filing a motion to
reopen. Matter of Uluocha, 20 I&N Dec. 133 (BIA 1989). After an initial bond redetermination, however, a
subsequent redetermination can only be made in writing and upon a showing that “circumstances have
changed materially since the prior bond redetermination.” 8 CFR §1003.19(e). While prolonged detention
without periodic hearings, in and of itself, may be unconstitutional without any other “material change,” it
does not violate the INA. Jennings v. Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018) [INA §235(b), §236(a),
and §236(c), cannot be plausibly read to include a prohibition against prolonged detention (more than 6
months) and to include a requirement that the government must provide by clear and convincing evidence
that detention remains justified; remanded for an analysis of constitutional and class claims]. See in this
part “Constitutional and Statutory Challenges to Prolonged Detention,” ¶ R.3.b (p.506), infra; If a bond
determination is on appeal, the IJ has jurisdiction to conduct a subsequent redetermination. Matter of
Valles, 21 I&N Dec. 769 (BIA 1997). If the respondent is in state or federal custody, the existence of a
DHS detainer does not give the IJ jurisdiction to hold a bond hearing where DHS has not set bond even if
deportation proceedings have been initiated by respondent filing the NTA. Matter of Sanchez, 20 I&N Dec.
223 (BIA 1990); Cruz v. Molerio, 840 F.Supp. 303, 305–06 (S.D.N.Y. 1994). Where IJ has authority to set
bond, the application must be made first to IJ nearest the place of detention, 8 CFR §1003.19(c)(1), and
thereafter to Page 487 IJ who has control over case, 8 CFR §1003.19(c)(2). The IJ’s decision to entertain
a bond hearing is not jurisdictional but a matter of venue. 8 CFR §1003.19(c)(3) and the transfer of a
detainee does not divest the judge of jurisdiction if she has received a motion for custody redetermination
Matter of Cerda Reyes, 26 I&N Dec. 528 (BIA 2015) [ IJ erred in believing the transfer of respondent from
York, NC to Lumpkin, GA deprived her of jurisdiction because it is a matter of venue]. IJ may raise or
lower bond. Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978). DHS/AG cannot deny bond or use bond
punitively because person sought judicial review. Matter of Au, 13 I&N Dec. 133 (BIA 1968). If respondent
is released from custody, application to the IJ for redetermination of bond or other conditions of release
must be made within 7 days of the date of release. 8 CFR §§236.1(d)(1), 1236.1(d)(1). A person who is
placed under house arrest or in ISAP (with electronic monitoring device) is not deemed to be in custody
and therefore must request bond redetermination within 7 days. Matter of Aguilar-Aquino, 24 I&N Dec.
747 (BIA 2009) [under 8 CFR §1236.1(d)(1) a respondent released from physical confinement is no longer
in custody and therefore must request redetermination within 7 days]. See also Matter of Garcia-Garcia,
25 I&N Dec. 93 (BIA 2009) [IJ has authority to reconsider ISAP or house arrest where motion to
ameliorate the terms of release was timely filed within 7 days]. Thereafter, application for modification of
bond or release may only be made to the DD. 8 CFR §§236.1(d)(2), 1236.1(d)(2); Matter of Chew, 18 I&N
Dec. 262 (BIA 1982). If there are changed circumstances, the DD may redetermine bond or revoke bond
even when bond was earlier redetermined by IJ, Matter of Sugay, 17 I&N Dec. 637 (BIA 1981), or after
there is a final administrative order on removal. 8 CFR §236.1(c)(9), 1236.1(c)(9). However, the DD
cannot deny bond completely where it would prevent alien from showing up at criminal trial. U.S. v. INS,
No. 89-1813, WSB ¶13,136.37 (S.D.N.Y. 1989).
(1) Physical Posting of Bond—All ERO offices that accept bonds must service the public from 9:00am to
3:00pm. The following persons may post bond: (i) USCs; (ii) LPRs; (iii) lawful NIVs; (iv) persons
released on OSUP; (v) person in removal proceedings, deferred action or stays of removal, etc.; (vi)
authorized surety companies and their agents; and (vii) foreign nationals. However, a person who
appears to post a bond and is in violation of the INA will be issued an NTA and then allowed to post a
bond and if the person has a final order s/he will be taken into custody. If ERO will place the person in
OSUP then s/he will be allowed to post the bond. ERO, ICE, Bond Management Handbook (Aug. 19,
2014), at 22, AILA Doc. No. 16051730. The interest rate on bonds is posted quarterly in the Federal
Register. See e.g., 83 FR 14955 (Apr. 6, 2018) [for period 4/1/18 to 6/30/18 rate is 1.59% per annum].
6.b. Certain persons, by regulation, may not obtain review before an IJ of a DD’s bond decision. Under 8
CFR §§1003.19(h)(2)(i)(A)–(E), 236.1(c)(11) & (d)(1), and 1236.1(c)(11) & (d)(1), an IJ may not
redetermine conditions of custody or have jurisdiction over bond matters with respect to: (A) persons in
exclusion proceedings; (B) persons, including LPRs, who are “arriving aliens,” Matter of Oseiwusu, 22 I&N
Dec. 19 (BIA 1998) [under Transition Period Custody Rules (TPCR)]; (C) persons who are described in
INA §237(a)(4) (removal on terrorist or political grounds under INA §237(a)(4)); (D) persons subject to
mandatory detention under INA §236(c)(1); (E) persons with final administrative orders of removal. See
also Jennings v. Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018) [INA §235(b), §236(a), and §236(c),
cannot be plausibly read to include a prohibition against prolonged detention (more than 6 months) and to
include a requirement that the government must provide by clear and convincing evidence that detention
remains justified; remanded for an analysis of constitutional and class claims]A constitutional and possibly
a statutory challenge to detention may however be brought in certain circumstances. see in this part ¶ R.3
(p.504), infra.
6.c. Attorney May Make Limited Appearance Solely for Bond Proceedings—Although EOIR does not
generally favor limited appearances, Matter of N-K- & V-S-, 21 I&N Dec. 879 (BIA 1997) [noting the “well-
settled principle that there is no ‘limited’ appearance of counsel in an immigration proceeding”],
regulations now permit a lawyer to separately represent a person in a bond or custody proceeding. 8 CFR
§1003.17(a) [“The entry of appearance of an attorney or representative in a custody or bond proceeding
shall be separate and apart from an entry of appearance in any other proceeding before the Immigration
Court”]. An attorney representing a person in a bond or custody proceeding must file a EOIR-28 but upon
the conclusion of the proceeding Page 488 need not file a motion to withdraw if she has specified she is
representing the person in “bond only” proceedings before EOIR. 80 FR 9500 (Oct. 1, 2015).
7. Asylum Applicants
7.a. Generally—Persons granted asylum, withholding, or CAT before the IJ may be released pending DHS
appeal. DHS states: “In general, it is ICE policy to favor release of aliens who have been granted
protection relief by an immigration judge, absent exceptional concerns such as national security issues or
danger to the community and absent any requirement under law to detain.… Arriving aliens should [also]
be considered for parole.” Memo, Garcia, Asst. Sec. DHS (Feb. 9, 2004), AILA Doc. No. 04022462.
Accord Field Guidance Reminder, Mead, Exec. Assoc. Dir., ERO, ICE (Mar. 6, 2012), reprinted in 17
Bender’s Immigr. Bull. 976, 1040 (Apr. 15, 2012).
7.b. Visa Waiver Program—Under the VWP, an applicant for asylum/withholding is not entitled to a bond
hearing before an IJ. DHS avoids the provision of a bond hearing by issuing an I-863 to the alien rather
than an NTA (I-862). Matter of Werner, 25 I&N Dec. 45 (BIA 2009) [Under 8 CFR §1208.2(c)(3)(i) the IJ’s
authority in visa waiver asylum cases is limited to hearing the asylum claim and the regulations provide no
authority for bond redetermination except in proceedings initiated by an NTA; Matter of Gallardo, 21 I&N
Dec. 210 (BIA 1996) superseded by 8 CFR §1208.2(c)].
7.c. Arriving Aliens with Credible Fear—ICE policy memorandum states that “when an arriving alien found to
have a credible fear establishes to the satisfaction of [ICE] his or her identity and that he or she presents
neither a flight risk nor danger to the community, [ICE] should”—absent “exceptional overriding
factors”—”parole the alien on the basis that his or her continued detention is not in the public interest.”
Memo, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or
Torture (Dec. 8, 2009), at ¶¶6.2, 8.3 AILA Doc. No. 09121760.
8. Detention of Children and Families—In accordance with 8 USC §1232 and 6 USC §279 CBP and ICE
must promptly determine if a child meets the definition of an “unaccompanied alien child” and if so transfer
him or her to the custody of ORR within 72 hours absent exceptional circumstances. Memo, Kelly, Sec. DHS,
Implementing the President’s Border Security and Immigration Enforcement Improvements Policies (Feb. 20,
2017), ¶I, p.10, AILA Doc. No. 17021831. For a thorough and detailed discussion of current ICE policy
regarding apprehension and detention of children see ICE manual at: ICE, Enforcement and Removal
Operations, Juvenile and Family Residential Management Unit, Field Office Juvenile Coordinator Handbook
(Sept. 2017), AILA Doc. No. 18042630 [manual regarding “processing, transporting, managing and removing
minors” including obtaining so-called voluntary withdrawals (p.20) at the border]. A child in removal
proceedings may be released to any of a large class of adult family members, legal guardians or, in certain
limited situations, to nonfamily members. 8 CFR §§236.3, 1236.3. The limitation on release to nonfamily
members only for unusual and compelling circumstances has been upheld. Reno v. Flores, 507 U.S. 292
(1993) [rejecting facial challenge on substantive and procedural due process, equal protection and statutory
grounds]. In response to the Flores litigation, a settlement agreement was entered into by the government
and the Service established more liberal guidelines for the release of unaccompanied minors. Memo, McNary
(Dec. 13, 1991), reprinted in 69 No. 6 Interpreter Releases, 189, 205 (Feb. 10, 1992). No unaccompanied
minor may be held in a detention facility for more than 72 hours unless s/he is: (1) charged or convicted of a
criminal offense other than EWI; (2) adjudicated a delinquent or subject to pending delinquency proceedings;
(3) engaged in violent or extremely disruptive conduct; (4) escaped from another facility; (5) an
unrepresented Salvadoran under Orantes; or (6) there are other extraordinary or compelling reasons. The
Flores also set the minimum standards for detention, housing and release of noncitizen juveniles who are
detained that included a general policy favoring release. ICE also detains minors in family detention centers.
In early January 2008, ICE issued family detention standards that it posted on its website
(http://www.ice.gov/detention-standards/family-residential). Legal Access and Visitation Standards were
established in SOPs by ICE in 2015. SOPs, ICE, No. 11302, Legal Access and Legal Visitation SOPs for ICE
Family Residential Center (Oct. 30, 2015), AILA Doc. No. 15112461. Roth, I.G. Report, DHS to Johnson,
Sec. DHS Oversight of Unaccompanied Alien Children (July 30, 2014) [noting need to follow Flores v. Reno
settlement agreement for unaccompanied minor children], AILA Doc. No. 14073144. See also Page 489
R.I.L-R v. Johnson, 80 F.Supp.3d 164, 186-91 (D.D.C. 2015) [preliminary injunctive relief granted to class of
mothers with minor children from Honduras, Guatemala and El Salvador who established credible fear but
were kept in detention while asylum claims were being processed because of ICE’s invocation of “general
deterrence” as the reason for detention]; Statement, Johnson, DHS Sec., Statement by Secretary Jeh C.
Johnson on Family Residential Centers (June 24, 2015), AILA Doc. No. 15062431 [reviewing for release all
families in detention more than 90 days; ending the use of general deterrence as a factor]. In Flores v. Lynch,
828 F.3d 898 (9th Cir. 2016) the court held that the 1997 Flores settlement which created “a presumption in
favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that
meet certain standards” unambiguously applies to accompanied as well as unaccompanied minors, but it
creates no affirmative right for the accompanying adult to be released. The standard for the release of adults
is governed by the usual standard articulated In re Guerra, 24 I&N Dec. 37, 38 (BIA 2006) [non–criminal alien
bears the burden of establishing “that he or she does not present a danger to persons or property, is not a
threat to the national security, and does not pose a risk of flight”]. However, the Court found that the current
detention and release policies for children in response to the surge of Central Americans attempting to enter
the U.S. in 2014 “do not comply with the Settlement.” On Jan. 20, 2017, the district court enforced the original
settlement finding that the government was violating paragraph 24A of the agreement by denying
unaccompanied immigrant minors the right to a bond hearing. Flores v. Lynch, CV 85-4544 DMG (AGRx),
AILA Doc. No. 14111359. In Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) the Ninth Circuit upheld the
validity of paragraph 24A of the settlement requiring bond hearings for unaccompanied minors
notwithstanding changes in statutory law (Homeland Security Act and the 2008 TVPRA) that the government
claimed terminated that right. For EOIR’s position see Memo, Maggard, Chief IJ (Acting), Revised Docketing
Practices Relating to Certain EOIR Priority Cases (Feb. 3, 2016), AILA Doc. No. 16020406; Memo, O’Leary,
Chief IJ, EOIR, Docketing Practices Relating to Unaccompanied Children Cases and Adults with Children
Released on Alternatives to Detention in Light of New Priorities (Mar. 24, 2015), AILA Doc. No. 15032702.
However, custody of a child by ORR does not per se violate the INA or the Homeland Security Act and
ORR/HHS may refuse to release a child even to a parent’s custody if they determine parent is unable to care
for the physical and mental well-being of the child. They may therefore continue to treat the child as an
unaccompanied minor. D.B., as Next Friend of R.M.B. v. Cardall, 826 F.3d 721 (4th Cir. 2016) [parent lacked
a substantive due process claim or statutory claim for the release of her son, but she does have a procedural
due process right under Mathews to obtain a hearing for his release]; Beltran v. Cardall, 222 F.Supp.3d 476,
481-89 (E.D. Va. 2016) [finding on remand that procedural due process requires the government has the
burden to initiate proceedings if it seeks to withhold a child from a parent and ORR owes the parent “some
form of adversarial process and could not simply require the [parent] to change the agency’s mind]; Santos v.
Smith, 260 F.Supp.3d 598, 604-16 (W.D. Va. 2017) [due process rights of the minor in ORR custody for over
two years were violated and court ordered immediate release to his mother as a remedy]. The district court
has also enforced other aspects of the original Flores agreement including the appointment of a Juvenile
Coordinator designated by defendants to report periodically to the court regarding enforcing aspects of the
agreement that the court found the defendants failed to comply with. Flores v. Sessions, No. CV 8504544
DMG (AGRx) (C.D. Cal. June 27, 2017), AILA Doc. No. 14111359 [finding that defendants failed to comply
with paragraph 12A of the agreement in the Rio Grande Sector of CBP in regard to providing children
adequate food, clean drinking water, sanitary conditions, temperature control in what many call the hieleras
(iceboxes), and sleeping conditions as well as other provisions and directing defendants to pick a Juvenile
Coordinator pursuant to paragraph 24A of the agreement].
8.a. Withdrawal of Application at the Border—ICE, recognizing that unaccompanied minor children at the
border have special rights which require them to be given removal hearings, is now seeking to get the
children to withdraw their applications at the border and return to Mexico. Memo, Albance, ICE Ex. Assoc.
Director, Implementing the President’s Border Security and Interior Immigration Enforcement Policies
(Feb. 21, 2017), ¶D, AILA Doc. No. 17070730.
8.b. Rearrest of Unaccompanied Minor—An unaccompanied minor who is rearrested by ICE after release to
a sponsor because of changed circumstances, such a membership in a violent gang, also has a due
process right to a prompt hearing before an IJ in which the government’s claim of changed circumstances
is put to the test. Saravia v. Sessions, 280 F.Supp.3d 1168, 1193-1206 (N.D. Cal. 2017) Page 490
[provisionally certifying a class and entering a preliminary injunction that a unaccompanied minor who is
rearrested has a due process right to an immediate hearing to determine whether there were changed
circumstances warranting ICE’s re-arrest].
8.c. Termination of Pregnancy—Court entered preliminary injunction where ORR policies regarding pregnant
unaccompanied minors: (1) deprived them of comprehensive and unbiased options counseling; (2) denied
them the power to decide for themselves whether to involve their parents in their pregnancy decision; and
(3) stripped them of their right to make autonomous decisions about whether to become a parent. Garza
v. Hargan, No. 17–cv–02122 (TSC), 2018 WL 1567600 (D.D.C. Mar. 30, 2018) [certified class of pregnant
minors in ORR custody subject to onerous policies and procedures regarding termination of their
pregnancy granted preliminary injunction]. This case was vacated by the S.Ct. under Munsingwear in light
of the unaccompanied minor’s termination of pregnancy. Azar v. Garza, 584 U.S. __, 2018 WL 2465222
(June 4, 2018).
8.d. Determining When a Person is a Minor—PL 110-457 §235(b)(4) (Dec. 23, 2008) instructed HHS to
devise age determination procedures for minors in custody. Section 235 of the TVPRA enacted Dec. 23,
2008 provides substantial protection and more generous release standards for unaccompanied minors in
immigration custody. To determine the appropriate age when an issue has arisen, DHS officials and a
Federal Field Specialist from HHS shall consider the following: (i) birth certificate in consultation with the
embassy of the home country to verify the certificate; (ii) other objective documents such as baptismal
certificates, school records, medical records; (iii) statement provided by the minor regarding his age or
birth date; (iv) statements from parents if they can be contacted; (v) statements from others apprehended
with the minor; (vi) sworn affidavits from parents or other relatives; (vii) biometric age determinations such
as bone density examination or dental forensics; (viii) record systems checks; (ix) forensic dental
examination, radiographs and bone density tests as “a last resort.” If the forensic examination results are
ambiguous, debatable or borderline “results will be resolved in favor of finding the alien a minor.”
Administration for Children and Families, HHS Office of Refugee Resettlement, Division of
Unaccompanied Children’s Services, Program Instruction (Mar. 23, 2009), AILA Doc. No. 09041364. But
see Legal Opinion, King, GC, EOIR, EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for
Purposes of Applying Certain Provisions of TVPRA (Sept. 19, 2017), AILA Doc. No. 17100201[opining
that IJs are not bound by DHS’s determination regarding whether a respondent is a UAC and claiming
that IJs may resolve any dispute about UAC status during the course of removal proceedings when it
bears on the UACs eligibility for relief including the initial jurisdiction over asylum].
8.e. Sexual Harassment—HHS has also set forth standards to prevent, detect and respond to sexual abuse
and sexual harassment involving unaccompanied minor children in the care of ORR. 79 FR 77768-800
(Dec. 24, 2014); 45 CFR pt. 411.
8.f. Family Case Management Program—ICE previously established a Family Case Management Program
as an alternative to detention that uses qualified case managers to promote participation in the hearing
and removal process. Fact Sheet, ICE, Stakeholder Referrals to the ICE/ERO Family Case Management
Program (Jan. 2016), AILA Doc. No. 16011104. This program has been eliminated under the current
administration. ICE Ends Alternative Detention Program, Citing Few Removals, Law 360 (June 9, 2017).
9. Appeals to BIA—An appeal to BIA of a bond decision must be made with 30 days, 8 CFR §§1003.38,
236.1(d)(3)(i), 1236.1(d)(3)(i), unless it is an appeal of a DD’s decision, in which case, it must be made within
10 days. 8 CFR §236.1(d)(3)(ii), 1236.1(d)(3)(ii). The bond appeal is separate from an appeal of the
underlying order of removal and the BIA will not review custody determinations in the context of an appeal
from an order of removal. Matter of Islam, 25 I&N Dec. 637, 643 (BIA 2011). If a bond determination is on
appeal, the IJ has jurisdiction to determine a subsequent bond redetermination. Matter of Valles, 21 I&N Dec.
769 (BIA 1997). DHS may seek an emergency stay from the BIA regarding any bond order. 8 CFR
§1003.19(i)(1). DHS may also obtain an automatic stay of an IJ’s bond order simply by filing an EOIR-43
where the DD denied bond or set bond at $10,000 or more and the IJ authorized release on bond. EOIR-43
must be filed within one business day of the IJ’s order. 8 CFR §1003.19(i)(2). Thereafter, DHS must file a
notice of appeal consistent with §1003.38 to the BIA within 10 days of the IJ’s decision or the stay will lapse.
To preserve the stay, the notice of appeal must be accompanied by a certification from a senior legal official
that s/he has approved the filing of the notice of appeal and is satisfied that the contentions Page 491
justifying continued detention have evidentiary support and that the legal arguments are warranted by
existing law or by a nonfrivolous argument for extension of the law. 8 CFR §1003.6(c)(1). Once the notice of
appeal is filed the IJ has 5 days to issue a written bond decision but may, in exigent circumstances, obtain an
additional 5 days. 8 CFR §1003.6(c)(2). If the BIA has not acted on the appeal within 90 days, the automatic
stay “shall” lapse. However, if the BIA grants a motion by the detainee to enlarge the time for submitting a
brief, the 90 days are tolled. 8 CFR §1003.6(c)(4). In addition, if the stay will lapse, DHS may seek a
discretionary stay. 8 CFR §1003.6(c)(5). If the BIA ultimately rules against DHS in its bond appeal, the
release order is automatically stayed for 5 days to allow DHS to seek AG review. 8 CFR §1003.6(d). See also
Memo [Interim OPPM 06-03], Neal, Chief IJ (Oct. 31, 2006), AILA Doc. No. 06110264.The automatic-stay
provision has been found to be unconstitutional, although these cases were all decided prior to the
regulation’s revision in 2006 to include the 90-day lapse provision. Uritsky v. Ridge, 286 F.Supp.2d 842 (E.D.
Mich. 2003); Bezmen v. Ashcroft, 245 F.Supp.2d 446 (D. Conn. 2003). Accord Zavala v. Ridge, 310
F.Supp.2d 1071 (N.D. Cal. 2004) [automatic-stay provision violates substantive and procedural due process
for person not subject to mandatory detention and not a national security threat]; Zabadi v. Chertoff, No. C
05-01796 WHA, 2005 WL 1514122 (N.D. Cal. June 17, 2005) and 2005 WL 3157377 (N.D. Cal. Nov. 22,
2005) [same]; Ashley v. Ridge, 288 F.Supp.2d 662 (D.N.J. 2003) [same]. But see Pisciotta v. Ashcroft, 311
F.Supp.2d 445, 453–56 (D.N.J. 2004) [the stay provision is not unconstitutional under Demore].
10. Federal Court Review of Detention Pending Proceedings
10.a. Generally—INA §236(e), 8 USC §1226(e) provides that: “The Attorney General’s discretionary
judgment regarding the application of this section shall not be subjected to review. No court may set aside
any action or decision by the Attorney General under this section regarding the detention or release of any
alien or the grant, revocation or denial of bond or parole.” In Demore v. Kim, 538 U.S. 510, 516–17 (2003)
the Supreme Court held that INA §236(e) does not bar habeas jurisdiction over a constitutional challenge
to mandatory detention in the absence of a specific provision barring habeas review. Although Demore
involved a constitutional challenge to mandatory detention, both pre- and post-Demore courts have found
that habeas jurisdiction remains for constitutional and statutory challenges to mandatory detention. See
Jennings v. Rodriguez, 583 U.S. __, __, 138 S.Ct. 830, 839-41 (2018) [neither INA §236(e), nor INA
§242(b)(9) preclude legal challenges to prolonged detention]; Hernandez v. Sessions, 872 F.3d 976, 987-
88 (9th Cir. 2017) [neither INA §236(e) nor INA §242(a)(2)(B)(ii) preclude jurisdiction over constitutional
and statutory claims of failing to consider financial conditions and alternatives to detention when making
bond determinations as it does not interfere in the exercise of discretion]; Nadarajah v. Gonzales, 443
F.3d 1069 (9th Cir. 2006) [exercising jurisdiction in challenge to detention by noncitizen with no final
removal order]; Sylvain v. U.S. Att’y Gen., 714 F.3d 150, 155 (3d Cir. 2013) [INA §236(e) does not bar
lawsuit claiming government lacked statutory authority to impose mandatory detention where ICE fails to
detain someone upon their release from relevant criminal custody]; Olmos v. Holder, 780 F.3d 1313, 1316
(10th Cir. 2015) [same]; Leonardo v. Crawford, 646 F.3d 1157 (9th Cir. 2011) [INA §236(e) does not bar an
action under Casas-Castrillonchallenging IJ’s decision upholding prolonged detention on constitutional or
statutory grounds]; Singh v. Holder, 638 F.3d 1196, 1202-03 (9th Cir. 2011) [constitutional challenges to
bond procedures not barred by INA §236(e)]; Al-Siddiqi v. Achim, 531 F.3d 490, 494–95 (7th Cir. 2008)
[challenge to DHS’s refusal to honor IJ’s bond order may be a violation of due process and is reviewable];
Gonzalez v. O’Connell, 355 F.3d 1010, 1014–15 (7th Cir. 2004) [finding habeas jurisdiction to challenge
mandatory detention even where the predicate issue to the constitutional claim was a statutory claim];
R.I.L-R v. Johnson, 80 F.Supp.3d 164, 176-77 (D.D.C. 2015) [claims of mothers with minor children from
Honduras, Guatemala and El Salvador who established credible fear and seek injunction to prevent
placement in interim detention while asylum claims being processed are not barred by INA §236(e)
because they challenge a policy outside of the bounds of an individual discretionary decision]; Dela Cruz
v. Napolitano, 764 F.Supp.2d 1197, 1199-1200 (S.D. Cal. 2011) [court had jurisdiction to determine
whether IJ improperly exercised his discretion in considering factors not explicitly set forth in Matter of
Guerra but found not error except IJ’s failure to articulate clear and convincing standard of proof]; Garcia
v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y. 2009) Page 492 [jurisdiction to review challenge to DHS
statutory interpretation regarding “when” a person is released for purposes of subjecting him to mandatory
detention]; Waffi v. Loiselle, 527 F.Supp.2d 480, 483–85 (E.D. Va. 2007) [INA §236(e) does not bar
habeas jurisdiction to determine statutory question whether person is subject to mandatory detention];
Campbell v. Chadbourne, 505 F.Supp.2d 191, 195–97 (D. Mass. 2007) [INA §236(e) does not bar
constitutional challenge to detention where refugee claims he was detained for refusing to apply for AOS];
Aguilar v. Lewis, 50 F.Supp.2d 539, 542–43 (E.D. Va. 1999) [INA §236(e) bars discretionary decisions not
statutory interpretation]; Velasquez v. Reno, 37 F.Supp.2d 663, 667–70 (D.N.J. 1999) [INA §236(e) barring
review of detention decisions does not foreclose habeas challenge to application of statute]. But see
Prieto-Romero v. Clark, 534 F.3d 1053, 1067 (9th Cir. 2008) [review of bond amount barred by INA
§236(e)]; Carrillo-Lozano v. Stolc, 669 F.Supp.2d 1074, 1079 (D. Ariz. 2009) [person claiming prolonged
detention as a USC had no due process claim where the immigration court had provided him a bond
hearing and the district court was barred by 8 USC §1226(e) from reviewing the discretionary
determination]; Hamada v. Gillen, 616 F.Supp.2d 177 (D. Mass. 2009) [rejecting claim that INA §236(e)
did not apply where proceedings were initiated before IIRIRA but administratively closed after IIRIRA and
then reopened]; Hatami v. Chertoff, 467 F.Supp.2d 637 (E.D. Va. 2006) [respondent’s claim that IJ failed
to provide meaningful bond hearing precluded by INA §§236(e), 242(a)(2)(B)(ii) and 242(b)(9)]; Pisciotta
v. Ashcroft, 311 F.Supp.2d 445, 453 (D.N.J. 2004) [ICE’s decision to re-detain petitioner without bond or
revoke his previous status because his removal hearing was reopened, notwithstanding a previous
$12,000 bond, was not reviewable].
10.b. Discretionary Decisions May Be Reviewed Where They Raise Constitutional/Legal Issues
(1) Generally—Courts have found jurisdiction to review even discretionary detention decisions where the
detention violates due process or exceeds statutory authority. See Al-Siddiqi v. Achim, 531 F.3d 490,
494–95 (7th Cir. 2008) [challenge to DHS’s refusal to honor IJ’s bond order may be a violation of due
process and is reviewable]; Dela Cruz v. Napolitano, 764 F.Supp.2d 1197, 1199-1200 (S.D. Cal. 2011)
[court had jurisdiction to determine whether IJ improperly exercised his discretion in considering
factors not explicitly set forth in Matter of Guerra but found no error except IJ’s failure to articulate
standard of proof which should be clear and convincing evidence]; Mau v. Chertoff, 562 F.Supp.2d
1107 (S.D. Cal. 2008) [reversing $100,000 bond and ordering petitioner’s release on theory of
continuing supervision arising from original order requiring bond hearing]; Judulang v. Chertoff, 562
F.Supp.2d 1119, 1125–27 (S.D. Cal. 2008) [court’s continuing jurisdiction over original order directing
bond hearing gives it authority to review IJ’s denial of bond on grounds of threat to society]; Straube v.
Chertoff, 560 F.Supp.2d 983, 9866–88 (N.D. Cal. 2008) [following Nadarajah and Tijani in deportation
case and ordering bond hearing where person was in nonmandatory detention for 4 years under INA
§236(a) during removal proceedings]; Mau v. Chertoff, 549 F.Supp.2d 1247 (S.D. Cal. 2008) [same as
Straube for person in detention more than 40 months].U.S. v. Grand China, Inc., 376 F.Supp.2d 1150
(D.N.M. 2005) [reviewing, but upholding, ICE denial of bond]. But see Prieto-Romero v. Clark, 534 F.3d
1053, 1067 (9th Cir. 2008) [review of bond amount barred by INA §236(e)]; Pisciotta v. Ashcroft, 311
F.Supp.2d 445, 453 (D.N.J. 2004) [the decision by ICE to re-detain petitioner without bond or revoke
his previous status because his removal hearing was reopened, notwithstanding a previous $12,000
bond, was not reviewable]; Loa-Herrera v. Trominski, 231 F.3d 984, 990–91 (5th Cir. 2000) [pre-
Demore decision finding that INA §236(e) barred district court from considering challenge to lack of
parole hearing for LPR stopped at the border]; Galvez v. Lewis, 56 F.Supp.2d 637 (E.D. Va. 1999) [pre-
Demore decision finding no jurisdiction to review IJ’s decision to apply INA §236(c) and refuse bond
hearing].
(2) Defining Discretionary Decisions—Unless the provision specifies that the matter is in the discretion of
the AG/DHS, the district court is not barred from review. Conditions imposed in orders of supervision
are subject to judicial review because 8 USC §1231(a)(3) does not clearly vest the AG/DHS with
discretion. Yusov v. Shaughnessy, 671 F.Supp.2d 521, 529–30 (S.D.N.Y. 2009) [court has jurisdiction
to review long term supervision conditions but found 3-month reporting requirement constitutional].
Page 493
10.c. Other Preclusion Statutes Do Not Bar Review of Detention Decisions—INA §242(g) does not bar
review of detention decisions; nor does INA §242(b)(9) or INA §242(a)(2)(B)(ii). Zadvydas v. Davis, 533
U.S. 678, 686–89 (2001). [INA §§236(e), 242(a)(2)(B)(ii), 242(a)(2)(C), and 242(g) do not bar habeas
jurisdiction to challenge post-removal detention]; Singh v. Holder, 638 F.3d 1196, 1202-03 (9th Cir. 2011)
[constitutional challenges to bond procedures not barred by INA §§236(e), 242(a)(2)(B)(ii)]; Flores-Torres
v. Mukasey, 548 F.3d 708 (9th Cir. 2008) [habeas petition seeking release from detention based on
citizenship is not barred by INA §242(b)(5) & (b)(9)]; Sillah v. Davis, 252 F.Supp.2d 589, 593–97 (W.D.
Tenn. 2003) [INA §242(a)(2)(B)(ii) does not preclude habeas jurisdiction to challenge revocation of
parole]; Zhislin v. Reno, 195 F.3d 810 (6th Cir. 1999) [INA §242(g) as interpreted by Reno v. American-
Arab Anti-Discrimination Comm., 525 U.S. 471, 482-83 (1999), does not bar review of challenge to
indefinite detention]; Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999) [in light of American-Arab, INA
§242(g) does not bar habeas to review detention]; Bouayad v. Holmes, 74 F.Supp.2d 471, 473–74 (E.D.
Pa. 1999) [government conceded that habeas jurisdiction existed to challenge mandatory detention, and
court determined that neither INA §236(e) nor INA §242(b)(9) preclude jurisdiction]; Kiareldeen v. Reno,
71 F.Supp.2d 402, 405–07 (D.N.J. 1999) [neither INA §236(e) nor §242(g) bars habeas jurisdiction to
review detention based on secret evidence]; Alikhani v. Fasano, 70 F.Supp.2d 1124, 1126–30 (S.D. Cal.
1999) [INA §§242(g), 242(b)(9) and 236(e) do not bar statutory and constitutional challenge to mandatory
detention]; But see Hatami v. Chertoff, 467 F.Supp.2d 637 (E.D. Va. 2006) [respondent’s claim that IJ
failed to provide meaningful bond hearing was precluded by INA §§236(e), 242(a)(2)(B)(ii) and 242(b)(9)];
Loa-Herrera v. Trominski, 231 F.3d 984, 990–91 (5th Cir. 2000) [no district court jurisdiction to require DD
to permit parole hearing for LPR stopped at the border].
10.d. REAL ID Act and Judicial Review of Detention—Under §106 of the REAL ID Act of 2005, PL 109-13,
119 Stat. 231, Div. B (May 11, 2005), Congress sought to eliminate habeas, mandamus, and All Writs
jurisdiction in the district courts in regard to “judicial review of an order of removal entered or issued under
any provision of this Act.” INA §242(a)(5). The legislative history of the Act, however, makes it clear that
habeas review will not be precluded “for challenges to detention that are independent of challenges to
removal orders.” Joint Explanatory Statement of the Committee of Conference, H.R. Cong. Rep. No 109-
72 at 175, 151 Cong. Rec. H2836, 2873 (May 3, 2005). See also Flores-Torres v. Mukasey, 548 F.3d 708
(9th Cir. 2008) [REAL ID Act did not bar jurisdiction over habeas petition challenging immigration
detention based on claim to U.S. citizenship; petition did not challenge removal order, but detention prior
to issuance of order]; Hernandez v. Gonzales, 424 F.3d 42 (1st Cir. 2005) [remanding habeas detention
challenge by Mariel Cuban to district court post–REAL ID]; Ali v. Gonzales, 421 F.3d 795, 797 n.1 (9th Cir.
2005) [REAL ID does not apply to matters outside of challenges to removal orders]; Nadarajah v.
Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) [finding habeas jurisdiction for challenge to detention by
noncitizen who did not have a final removal order]; Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d
Cir. 2005); Moallin v. Cangemi, 427 F.Supp.2d 908, 918–21 (D. Minn. 2006) [citing REAL ID legislative
history, a Somalian detained subsequent to his removal order can challenge custody as violative of the
constitution]; Abdulle v. Gonzales, 422 F.Supp.2d 774, 776 (W.D. Tex. 2006) [REAL ID does not preclude
habeas related to detention only]. But see Deljevic v. Baker, 463 F.Supp.2d 699 (E.D. Mich. 2006) [no
habeas jurisdiction to review detention where detention is challenged on ground that final order of removal
was improper].
10.e. Bond Pending Circuit Court Review—At least one circuit court has determined it has the authority to
grant bond while a petition for review is pending in the circuit court where petitioner has presented a
substantial claim and there are extraordinary circumstances that make the grant of bail necessary to make
the petition for review remedy effective. Elkimya v. DHS, 484 F.3d 151 (2d Cir. 2007) [court has inherent
authority to grant bail pending resolution of a petition for review of returning LPR who has been out of the
U.S. for 4 years, but finding no extraordinary circumstances permitting bail]; Mapp v. Reno, 241 F.3d 221
(2d Cir. 2001) [district courts have inherent authority to grant bail while habeas petition is pending where
to do so is “necessary to make the habeas remedy effective”]. But see Bolante v. Keisler, 506 F.3d 618
(7th Cir. 2007) [admitting a person to bail while challenging admission is contrary to the INA; inherent
authority to admit persons to bail does not extend to persons deemed inadmissible at the border]; Page
494 Hussain v. Mukasey, 510 F.3d 739 (7th Cir. 2007) [extending Bolante to prohibit circuit court from
ordering release in the context of a habeas challenge to detention merely because challenge to removal
order was also pending in the circuit court]. See also Judulang v. Chertoff, 535 F.Supp.2d 1129, 1132–33
(S.D. Cal. 2008) [detention lasting over 2½ years is unreasonable and district court ordered bond hearing
over DHS objection that IJ lost jurisdiction over bond matters under 8 CFR §1003.19(a) when
administrative order became final and case was on a petition for review in circuit court].
10.f. Exhaustion of Administrative Remedies—Exhaustion may not be required in detention cases. See
Chapter 10, ¶ IV.B.13.c (p.1887), infra.
10.g. Jurisdiction; Venue; Proper Custodian—See Chapter 10, ¶ III.C.9.b (p.1828), infra, for a discussion
regarding whether the Secretary of Homeland Security or the immediate custodian of an applicant in
detention is the proper respondent in a habeas proceeding.
11. Cancellation of Bond—A bond is canceled if it occurs prior to a breach where the person: (i) dies; (ii) is
taken back into custody by DHS; (iii) is removed; (iv) is granted LPR or citizenship; (v) is taken into custody
by another federal, state or local LEA and will be detained more than 30 days; (vi) has his removal
proceeding terminated (but not administrative closure or stay); (vii) voluntarily departs with valid proof of
departure; (viii) surrenders on the date in the demand notice and fulfills the conditions of the delivery bond;
(ix) is in compliance with and has fulfilled all conditions of an order of supervision. A bond will also be
cancelled if ICE receives valid proof “that the alien has left the United States on or before the voluntary
departure date fulfilling the condition of a voluntary departure (VD) bond.” ERO, in the exercise of its
discretion may also cancel bonds when: (1) person granted TPS; (2) person granted a benefit under a
special category such as a T or U visa; (3) person granted withholding of removal or deferral by IJ and the
possibility of removal is unforeseeable; (4) the person’s case is administratively closed pursuant to an OPLA
prosecutorial review; and (5) the person is granted asylum unless ICE reserves appeal. ERO, ICE, Bond
Management Handbook (Aug. 19, 2014), at 8-9, AILA Doc. No. 16051730
12. Breach of Bond—Must be substantial. 8 CFR §§103.6(c)(3), (e). Bahramizadeh v. INS, 717 F.2d 1170 (7th
Cir. 1983). U.S. v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 103 F.Supp.3d 1121, 1132-54 (N.D. Cal.
2015) [addressing a number of significant issues regarding bond breach including: (1) enforcement of the
Shrode rule prohibiting breach where person not deported within 90-day period plus additional allowable
time; (2) failure to give the bonding company 3 days’ notice before informing respondent; (3) providing the
correct address of respondent and reason for the demand; (4) issuance of a delivery rather than a
supervision bond by mistake; and (5) impact of voluntary departure on bond breach]. Federal court found no
breach where alien departed before interview at DHS (after OSC issued) and submitted SA-044 from consul
(verifying departure) as proof that he could not return to U.S. Guirola-Beeche v. DOJ, 662 F.Supp. 1414 (S.D.
Fla. 1987). BIA and courts have found breach where respondent did not surrender and filed habeas petition,
Matter of Allied Fidelity, 19 I&N Dec. 124 (Comm. 1984), where alien did not timely appear at hearing, Matter
of Arbelaez-Naranjo, 18 I&N Dec. 403 (RC 1983) [appeared a day late due to illness], or where alien did not
appear pursuant to bag and baggage letter and instead filed motion to stay which was denied. Ruiz-Rivera v.
Moyer, 70 F.3d 498 (7th Cir. 1995) [failure to appear after stay denied]; International Fidelity v. INS, 623
F.Supp. 45 (S.D.N.Y. 1985). A bond breach can be appealed to the AAO. U.S. v. Gonzales & Gonzales
Bonds & Ins. Agency, 728 F.Supp.2d 1077, 1082-85 (N.D. Cal. 2010). Where unrebutted evidence
demonstrated that notice of breach was not received, district court reinstated 30-day appeal period to AAO.
Hrubec v. INS, 828 F.Supp. 251 (S.D.N.Y. 1993), aff’d without opinion, 41 F.3d 1500 (2d Cir. 1994). But see
McLean v. Slattery, 839 F.Supp. 188 (E.D.N.Y. 1993) [summary judgment for government where person failed
to exhaust administrative remedies]. Bonding companies can be held liable for breach under contract theory
based upon I-352 and 8 CFR §§103.2(a), 299.1, but have certain defenses. See Echavarria v. Pitts, 641 F.3d
92 (5th Cir. 2011) [DHS’s failure to make additional attempts to notify obligor after letter notice failed was a
violation of due process]; Safety Nat’l Cas. Corp. v. DHS, 711 F.Supp.2d 697, 716-36 (S.D. Tex. 2008) [notice
to obligor and agent is a condition precedent to enforcement of bond breach]; U.S. v. Gonzales & Gonzales
Bonds & Ins. Agency, 728 F.Supp.2d 1077 (N.D. Cal. 2010) [bond breach is reviewed under APA and not de
novo review, bond company has right to counterclaim; and government must provide A-files in discovery].
U.S. v. Safety Nat’l Cas. Corp., 782 F.Supp.2d 420, 427 (S.D. Tex. 2011) Page 495 [following Gonzales and
former decision at 711 F.Supp.2d 1077, the court ordered DHS to provide A-file for no-notice defense]. If
bond is not breached, the signatory on the bond is entitled to the return of the bond money with interest set
by the Treasury Secretary which shall not exceed 3 percent. 8 CFR §§293.1-.2; 83 FR 14955 (Apr. 6, 2018)
[for period 4/1/18 to 6/30/18 rate is 1.59 % per annum]; 82 FR 32444 (July 13, 2017) [for period July 1, 2017
to Sept. 30, 2017 rate is .92%]; 80 FR 34239-42 (June 16, 2015). For ERO procedures governing breach of
bonds and appeal by bond obligors, see ERO, ICE, Bond Management Handbook (Aug. 19, 2014), at 10-18,
49-71 AILA Doc. No. 16051730[discussing mitigation and reduction of bond amount forfeited in relation to
how many days after surrender date person delivered to ERO].
O. Conditional Parole—INA §236(a), permits ICE and IJ to conditionally parole a person into the community
pending a determination in her case or her testimony as a material witness. INA §236(a)(2)(B). See also Rivera
v. Holder, 307 F.R.D. 539 (W.D. Wash. 2015) [clarifying IJs’ authority under INA §236(a) to grant release on
conditional parole as an alternative to release on a monetary bond].However, a parole under this provision is not
the same as a parole under INA §212(d)(5)(A) and may not permit the person to adjust status before the IJ.
Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007) [person apprehended near the border who was
EWI and who was conditionally paroled under INA §236(a)(2)(B) after being detained for several weeks because
he was a material witness in a smuggling case could not AOS under INA §245 because he was not paroled
within the meaning of INA §245]; Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) [a person released from
custody under conditional parole is not paroled under INA §212(d)(5) for purposes of AOS]; Cruz-Miguel v.
Holder, 650 F.3d 189 (2d Cir. 2011); Delgado-Sobalvarro v. U.S. Att’y Gen., 625 F.3d 782 (3d Cir. 2010) [followed
Castillo-Padilla under Chevron step II]; Coldebella, Office of Gen. Counsel, DHS, Clarification of the Relation
Between Release under Section 236 and Parole under Section 212(d)(5) of the INA (Sept. 28, 2007), AILA Doc.
No. 07121790.
P. Detainers
1. Generally—DHS may place a notice with federal, state, or local jail or prison officials, called a “detainer,”
requesting the receiving official (Bureau of Prisons (BOP) or state or local equivalent) to notify DHS when
they intend to release the detained alien and to hold the alien for DHS. 8 CFR §§236.1, 287.7, 1236.1. Under
8 CFR §§287.7(a), (d), DHS may not command a state or local government to detain an individual, as both
the regulation and the 10th Amendment require that a detainer be treated as a request. Galarza v. Szalczyk,
745 F.3d 634 (3d Cir. 2014) [the regulation and the 10th Amendment’s anti-commandeering requirement bar
treating the detainer regulation as an obligation rather than a request]. Local and state officials are not
required to hold the subject of a detainer for DHS. Orellana v. Nobles Cnty., 230 F.Supp.3d 934 (D. Minn.
2017) [holding state detainee who would have been released but for ICE detainer violated Fourth
Amendment and county was liable under §1983]; Miranda-Olivares v. Clackamas Cnty., No. 3:12–cv–02317–
ST,2014 WL 1414305 * 9 (D. Or. Apr. 11, 2014) [“ 8 CFR §287.7 does not require LEAs to detain suspected
aliens upon receipt of a Form I-247 from ICE and … the Jail was at liberty to refuse ICE’s request”]; Morales
v. Chadbourne, 996 F.Supp.2d 19, 29 (D.R.I. 2014) aff’d on other grounds 763 F.3d 208 (1st Cir. 2015)
[“detainers are not mandatory and the [state correctional official] should not have reasonably concluded as
such”]; Buquer v. City of Indianapolis, 797 F.Supp.2d 905, 911 (S.D. Ind. 2011) [“a detainer is not a criminal
warrant, but rather a voluntary request”]; Letter, Ragsdale, Acting Director ICE, to Thompson (Feb. 25, 2014),
AILA Doc. No. 14032846 [ICE detainers “are not mandatory as a matter of law”]; DHS (Detainer) Form I-
247A (Feb. 2017) [“It is therefore requested that you … maintain custody of him/her for a period NOT TO
EXCEED 48 HOURS”]. The authorizing statute for detainers, 8 USC §1357(d), limits the use of detainers to
violations “of any law relating to controlled substances.” But see Committee for Immigr. Rights v. County of
Sonoma, 644 F.Supp.2d 1177, 1197–99 (N.D. Cal. 2009) [statute is ambiguous and under Step 2 of Chevron
agency’s decision to expand the detainer to additional crimes is not unreasonable]. DHS can only legally
place a detainer on a person who is amenable to removal. 8 CFR §287.7(a).
2. Cooperation of Law Enforcement Agencies—In practice, jurisdictions differ on whether to honor the
detainer request. Philadelphia, for example, has a policy to not honor detainers “unless such person is being
released after conviction for a first or second degree felony involving violence and the detainer is supported
by a judicial warrant,” reprinted in 91 No. 16 Interpreter Releases 648 Page 496 (Apr. 21, 2014). See also
Cal. Gov. Code §§7282-85; Information Bulletin, Gardner, Chief Division of Law Enforcement, Cal.
Department of Justice, Responsibilities of Law Enforcement Agencies Under the California Values Act,
California Trust Act, and the California Truth Act, AILA Doc. No. 18040461[SB54 prohibits the use of state
LEA resources to detain someone in response to an immigration hold request, Cal. Gov. Code 7283(b);
7284(e)]; Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017) [“nothing in the statutes or common law of
Massachusetts authorizes court officer to make a civil arrest” at the request of federal immigration authorities
pursuant to their detainer (citing this Sourcebook)]. Some states have now joined the efforts to enforce
detainers. See e.g., Tex. S.B. 4, Art. 2 (May 7, 2017) [adding Tex. Crim. Proc. Code Ann. Art. 2.251, requiring
all LEAs to comply with “any” request in a detainer], AILA Doc. No. 17051238. It is a class A misdemeanor for
a sheriff, chief of police or constable, or a person who is otherwise the primary authority for administering a
jail to “knowingly” fail to comply with a detainer request. Tex. Penal Code Ann. §39.07. In City of El Cenizo v.
Texas, No. 17-50762, 2018 WL 2121427 (5th Cir. May 8, 2018), the 5th Circuit upheld the detainer provision
and rejected the facial challenge to the detainer requirements noting that the “collective-knowledge” doctrine
allows an ICE officer’s knowledge that there is probable cause to arrest an alien to be imputed to local
officials.
3. LEA Liability—Jurisdictions that treat detainers as a basis for detention may be liable for Fourth Amendment
and/or due process violations. See Roy v. County of Los Angeles, No. CV 12-09012-AB (FFMx), 2018 WL
914773, at *22–24 (C.D. Cal. Feb. 7, 2018) [cannot hold a criminal detainee beyond the completion of his
criminal custody and doing so constitutes a new arrest for purposes of the Fourth Amendment which the
county may not do for a civil immigration matter; county policy of taking into custody persons for whom bail is
set at $25,000 or less only if there is a detainer is illegal as there is no rational basis to do so because the
county has no authority to arrest person for civil immigration matter]; Lopez-Aguilar v. Marion Cnty. Sheriff’s
Dep’t, No. 1:16-cv-02457-SEB-TAB, 2017 WL 5634965 (S.D. Ind. Nov. 7, 2017)[finding continued detention
violates the Fourth amendment because the immigration detainer is voluntary and provides only for a civil
violation]; Villars v. Kubiatowski, 45 F.Supp.3d 791, 802-03 (N.D. Ill. 2014) [denied motion to dismiss
complaint against village and police for continuing to detain plaintiff on a federal detainer after he posted
bond in the state case]; Miranda-Olivares, supra [at summary judgment stage, holding County liable for
holding plaintiff on ICE detainer without probable cause in violation of the Fourth Amendment]; Morales v.
Chadbourne, supra [plaintiff who was held on ICE detainer without probable cause or due process
protections stated a claim against state prison director]. But see Mendoza v. ICE, 849 F.3d 408 (8th Cir.
2017) [rejected Bivens claim against ICE officer, §1983 claims against county officials, and §1985(3)
conspiracy claims against both where country detained USC for three days at ICE’s request]. It is also a
Fourth Amendment violation where county officers hold a detainee beyond the criminal basis for his detention
and do not allow him to post bail because an ICE administrative warrant was issued in the absence of a
detainer. Ochoa v. Campbell, 266 F.Supp. 1237 (E.D. Wash. 2017) [plaintiff was likely to succeed on his
§1983 claim for violation of the Fourth Amendment where he was prohibited from posting bail on his criminal
case due to a hold bases upon an immigration administrative warrant; county could not rely on “collective
knowledge doctrine” to argue that local county officials could rely on ICE’s probable cause findings in the
administrative warrant].
4. U.S. Liability—U.S. may also be liable under the FTCA if ICE officers failed to have probable cause to issue
a detainer. Morales v. Chadbourne, 235 F.Supp.3d 388 (D.R.I. 2017) [finding ICE officer who issued detainer
against USC did not have probable cause and was not entitled to qualified immunity because it was not
objectively reasonable to draw inferences from a database where plaintiff’s citizenship status was left blank;
similarly supervisor ICE FOD was liable]. See also Roy v. County of Los Angeles, No. CV 12-09012-AB
(FFMx), 2018 WL 914773 (C.D. Cal. Feb. 7, 2018) [evidence of foreign birth and no match to federal data
base (“foreign born no match”) is not probable cause for removability and therefore warrantless detainers
based upon “foreign born no match” are illegal; so too are warrantless detainers where no determination of
flight risk was made and no removal proceeding is pending or finalized]. The improper filing or maintenance
of a detainer may give rise to an FTCA claim. Makowski v. U.S., 27 F.Supp.3d 901, 916-19 (N.D. Ill. 2014)
[FTCA claim for false imprisonment against DHS/ICE was permitted where the claim arose from the issuance
and failure to cancel an improper immigration detainer of a USC that was contrary to DHS/ICE Page 497
policy to promptly investigate claims of citizenship]; Mayorov v. U.S., 84 F.Supp.3d 678 (N.D. Ill. 2015) [same
but permitted to proceed under negligence theory].
5. Detainer Form—The latest version of ICE’s detainer policy provides that ICE will issue a I-247 detainer to
seek the detention and transfer of detainees where an ICE immigration officer (defined as an ERO or HSI
agent or persons designated under INA §287(g)) believes there is probable cause that the person is
removable because there is: (1) a final order of removal against the alien; (2) the pendency of ongoing
removal proceedings against the alien, including cases in which DHS has issued a charging document and
served the charging document on the alien; (3) biometric confirmation of the alien’s identity and a records
match in federal databases that affirmatively indicated, by themselves or in addition to other reliable
information, that the alien either lacks lawful immigration status or, notwithstanding such status, is removable
under U.S. immigration law; and/or (4) a statement(s) made voluntarily by the alien to an ICE immigration
officer and/or other reliable evidence that indicate the alien either lacks lawful immigration status or,
notwithstanding such status, is removable under U.S. immigration law. ICE, Policy No. 10074.2, Issuance of
Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), AILA Doc. No. 17032405. In light of
cases such as Moreno v. Napolitano, 213F.Supp.3d 999, 1004-09 (N.D. Ill. 2016) an ICE detainer must be
accompanied by either (1) a properly completed Form I-200 (Warrant for Arrest of Alien) signed by an
authorized ICE officer; or (2) a properly completed Form I-205 (Warrant of Removal/Deportation) signed by
an authorized ICE Officer. ICE, Policy No. 10074.2 at 2.4. ICE shall not issue or cancel a detainer in the
following circumstances: (1) person is temporarily detained or stopped but not arrested by an LEA; (2) where
probable cause is “solely based on evidence of foreign birth and the absence of records in available
databases (‘foreign-born no match’); (3) where ICE cannot assume custody within 48 hours; (4) where ICE
determines it will not assume custody; (5) where ICE believes the person detained is a USC following ICE
Policy No. 16001.2, Investigating the Potential U.S. Citizenship of Individuals Encountered by ICE (Nov. 10,
2015), or (6) where the officer has simply initiated an investigation to determine where the person is subject
to removal. ICE, Policy No. 10074.2 at 2.5-2.9, 5.1.
6. Priorities Potentially Affecting Detainers—As a result of the issuance of an Executive Order on Interior
Enforcement the prior memo regarding enforcement is eliminated and a new set of guidelines prioritizing
removability has been put in place, thereby affecting how detainers will be addressed. The Priority
Enforcement Program (“PEP”) has been terminated and the corresponding memo regarding enforcement
Memo, Johnson, Sec. DHS, Policies for the Apprehension, Detention and Removal of Undocumented
Immigrants (Nov. 20, 2014), AILA Doc. No. 14112004 have been rescinded and the Secure Communities
Program has been reinstated. EO 13768, Enhancing Public Safety in the Interior of the United States (Jan.
25, 2017), Sects. 5, 10, 82 FR 8799-8803 (Jan. 30, 2017) Memo, Kelly, Sec. DHS, Enforcement of the
Immigration Laws to Serve the National Interest (Feb. 20, 2017), ¶¶A-B, pp. 2-3, AILA Doc. No.
17021830[ending the Priority Enforcement Program and re-establishing the Secure Communities program
and rescinding the Johnson Memo that created the Priority Enforcement Program]. Enforcement actions can
be initiated against removable persons encountered during the performance of official duties and actions
should be consistent with enforcement priorities identified in EO 13768. Kelly, supra at ¶C. The new priorities
for the detention and removal of persons are those who are “aliens described” in INA §§212(a)(2), (a)(3), (a)
(6)(C), 235, 237(a)(2), (a)(4) as well as any removable persons who: (1) have been convicted of any criminal
offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed
acts that constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in
connection with any official matter before a government agency; (5) have abused any program related to
receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal
obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk
to public safety or national security. EO 13768, supra at Sect. 5; Kelly, supra at ¶A p.2. To abuse “any
program related to receipt of public benefits” the person had to “knowingly defraud[ ] the government or a
public benefit system.” Q&A;, DHS, Implementation of the Executive Order on Enhancing Public Safety in the
Interior of the United States (Feb. 21, 2017), Q.18, AILA Doc. No. 17022130. In addition to these priorities
DHS personnel “have full authority to arrest or apprehend an alien whom an immigration officer has probable
cause to believe is in violation of the immigration laws. They also have full authority to initiate removal Page
498 proceedings against any alien who is subject to removal under any provision of the INA and to refer
appropriate cases for criminal prosecution.” Memo, Kelly (Feb. 20, 2017), supra at ¶C.
Prior priority policies under the PEP program narrowed the class of persons subject to detainers to those ICE
believed were a threat to national security or if the person falls under certain priorities. See supra Memo,
Johnson, (Nov. 20, 2014), AILA Doc. No. 14112004. These priorities were: (a) persons engaged in or
suspected of terrorism or espionage or otherwise pose a danger to national security; (b) persons convicted of
an offense under 18 USC §521(a) where active participation in a criminal street gang is an element or
persons 16 or older who intentionally participated in an organized criminal gang to further the gang’s illegal
activity; (c) persons convicted of a felony in the convicting jurisdiction (state or federal) other than a state or
local offense where immigration status is an essential element; (d) persons convicted of an aggravated
felony; (e) persons convicted of 3 or more misdemeanors other than minor traffic offenses or state or local
offenses where immigration status is an essential element; (f) persons convicted of a significant
misdemeanor including DUI, domestic violence, burglary, unlawful possession or use of a firearm, drug
distribution or trafficking, sexual abuse or exploitation, or a misdemeanor where the person was sentenced to
90 days (it does not include a suspended sentence). Memo, Johnson, Sec. DHS, Secure Communities (Nov.
20, 2014) at 2, AILA Doc. No. 14112005. PEP, however, is no longer in effect.
7. Sanctuary Cities and Detainers—The DOJ has unsuccessfully used the award of police and other federal
grants to threaten cities into compliance with an immigration agenda that includes stricter cooperation
regarding detainers. Litigation has generally been successful in opposing these conditions. See “Sanctuary
Cities Litigation,” Chapter 2, Section III.E (p.56), supra.
8. Consequences for Inmates When Detainer Issued—A detainer may have harsh consequences for
inmates. Mayorov v. U.S., 84 F.Supp.3d 678 (N.D. Ill. 2015) [USC disqualified from boot camp and served
325 days in prison because of erroneous detainer]. The BOP, for example, may have the right to change
classification of a prisoner when a detainer is placed by DHS. Mohammed v. Sullivan, 866 F.2d 258 (8th Cir.
1989). The BOP classifications may not be subject, themselves, to due process, equal protection and APA
challenges. Gallegos-Hernandez v. U.S., 688 F.3d 190 (5th Cir. 2012) [rejecting due process and equal
protection challenges to refusal of BOP to place persons with ICE detainers from involvement in drug
treatment, rehabilitation, and half-way house programs]; Perez v. Lappin, 672 F.Supp.2d 35 (D.D.C. 2009)
[rejected Mariel Cubans challenges to his security classifications, security levels, and to location of BOP
detention].
9. Federal Jurisdiction to Challenge Detainer—Habeas jurisdiction is available against the BOP challenging
the execution of the defendant’s sentence. Gallegos-Hernandez v. U.S., 688 F.3d 190, 194 (5th Cir. 2012)
[jurisdiction to challenge constitutionality of BOP regulation that bars rehabilitation programs for person with
ICE detainer]. Habeas jurisdiction against DHS may also be available once DHS places the detainer because
the noncitizen may then be considered to be in DHS custody for habeas purposes. Guti v. INS, 908 F.2d 495
(9th Cir. 1990); Vargas v. Swan, 854 F.2d 1028 (7th Cir. 1988); Gonzalez v. ICE, 2014 WL 12605368, No. CV
13-4416-BRO (C.D. Cal. July 28, 2014) [later consolidated with Roy v. County of Los Angeles, supra, which
analogized to Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) that because the
detainers now request detention that the person is “in custody” of ICE for habeas purposes]; Jimenez Moreno
v. Napolitano, 2012 WL 5995820 (N.D. Ill. Nov. 30, 2012) [applying Vargas to find custody and observing that
current detainers request detention making future custody not speculative]; Galaviz-Medina v. Wooten, 27
F.3d 487, 492–94 (10th Cir. 1994) [where detainer and final deportation order there is habeas jurisdiction
against federal warden and INS]; Lemeshko v. Wrona, 325 F.Supp.2d 778, 782–83 (E.D. Mich. 2004)
[habeas jurisdiction where DHS placed detainer and state detainee has final order even if she is not in DHS
physical custody]; Simmonds v. INS, 326 F.3d 351, 354–56 (2d Cir. 2003) [same]. However, many courts,
including the BIA, when analyzing the former “notice-only” detainer that did not request continued detention
of the person found that a detainer alone is insufficient to constitute DHS custody. Matter of Sanchez, 20 I&N
Dec. 223 (BIA 1990) [filing of a detainer does not place a person in technical INS custody so as to grant IJ
jurisdiction over the person’s bond]; Zolicoffer v. DOJ, 315 F.3d 538 (5th Cir. 2003) [agreeing with other older
federal circuit decisions without addressing the newer detainer request for detention and finding no habeas
jurisdiction because person is not in custody of immigration authorities]; Garcia v. Taylor, 40 F.3d 299 (9th Cir.
1994) [INS detainer letter not custody for habeas purposes]; Santana v. Chandler, 961 F.2d 514 (5th Cir.
1992) Page 499 [no jurisdiction to compel initiation of INS proceedings because alien was not in INS
custody]; Prieto v. Gluch, 913 F.2d 1159, 1162–64 (6th Cir. 1990) [same]; Orozco v. INS, 911 F.2d 539 (11th
Cir. 1990) [same]; Mohammed v. Sullivan, 866 F.2d 258 (8th Cir. 1989); Campillo v. Sullivan, 853 F.2d 593,
595–96 (8th Cir. 1988) [same]; O’Georgia v. DOJ, 370 F.Supp.2d 657 (N.D. Ohio 2005) [no mandamus
jurisdiction where petitioner failed to exhaust internal BOP remedies and where there is no constitutional or
statutory violation under INA §241 to be removed promptly]; Bell v. INS, 292 F.Supp.2d 370, 373–74 (D.
Conn. 2003); Henriquez v. Ashcroft, 269 F.Supp.2d 106, 108–09 (E.D.N.Y. 2003) [finding no jurisdiction in
habeas to review denial of certificate of citizenship where INS simply placed a detainer on applicant and he
remains in BOP custody]; Kendall v. INS, 261 F.Supp.2d 296, 300–03 (S.D.N.Y. 2003) [no habeas jurisdiction
over notice detainer and petitioner is not in INS custody].
The filing of a DHS detainer against an inmate does not deny the inmate equal protection based on alienage
or due process where the detainer prevents participation in a family reunification program, Gallegos-
Hernandez v. U.S., 688 F.3d 190 (5th Cir. 2012) [rejecting due process and equal protection challenges to
refusal of BOP to place persons with ICE detainers in drug treatment, rehabilitation, and half-way house
programs]; Isaraphanich v. Coughlin, 716 F.Supp. 119 (S.D.N.Y. 1989) [rational basis test applied]; Deutsch v.
INS, 943 F.Supp. 276, 280 (W.D.N.Y. 1996) [no constitutional right implicated by BOP classification based on
INS detainer]; Marshall v. Reno, 915 F.Supp. 426, 433–34 (D.D.C. 1996); Franklin v. Barry, 909 F.Supp. 21
(D.D.C. 1995) [rejecting equal protection and due process challenge based on different classifications of
persons due to INS detainer], or where it prevents the inmate’s efforts to reduce his time in prison. McLean v.
Crabtree, 173 F.3d 1176, 1184–86 (9th Cir. 1999); Nasious v. Two Unknown BICE Agents at the Arapahoe
Cnty. Justice Ctr., 657 F.Supp.2d 1218 (D. Colo. 2009) [ICE officers’ lodging of detainer resulting in plaintiffs
increased state incarceration by 9 months without the possibility of obtaining community release did not
violate due process and court dismissed Bivens action]; or otherwise affects his custody classification. Ortega
v. ICE, 737 F.3d 435, 439-41 (6th Cir. 2013) [inmate had due process liberty interest in remaining in home
confinement rather than being transferred to jail, but local officials had qualified immunity because the
existence of the liberty interest was not clearly established]. See also Paulino v. Connery, 766 F.Supp. 209
(S.D.N.Y. 1991) [detainer not a violation of due process notwithstanding former 8 CFR §242.2(c)(2)]. But see
Makowski v. U.S., 27 F.Supp.3d 901, 914-15 (N.D. Ill. 2014) [DHS violation of the Privacy Act (by maintaining
inaccurate records) was the “proximate cause” of plaintiffs prolonged detention notwithstanding the Illinois
Department of Corrections decision to disqualify plaintiff from boot camp due to the detainer]. However, the
automatic revocation of work release or other benefits solely because a detainer was filed may be a due
process violation. Severino v. Negron, 996 F.2d 1439 (2d Cir. 1993). BOP’s policy is to not permit persons
with a pending detainer to participate in unescorted community activities (e.g., halfway house, furlough).
Letter, Quinlan, Director of BOP (Oct. 6, 1989), reprinted in 66 No. 43 Interpreter Releases 1241, 1252–53
(Nov. 6, 1989) and therefore they are also not permitted to obtain sentence reductions based on participation
in community-based treatment programs. 28 CFR §550.58, 61 FR 25121. One possible solution is to ask the
sentencing judge to order that the detainer have no effect on unescorted community activities. BOP has also
excluded inmates with confirmed removal orders from participating in literacy programs, thereby affecting
their good time credit. 28 CFR §523.20; 70 FR 66752–54 (Nov. 3, 2005) [persons with final orders are
excluded from participating in literacy and GED programs because the programs have long waiting lists and
“we must concentrate our resources on inmates who will be released into U.S. communities”].
10. Controlled Substances Violations—Under INA §287(d), 8 USC §1357(d), if a federal, state, and local law
enforcement officer has arrested an alien for a violation relating to controlled substances, and the officer
requests ICE to make a decision about whether to issue a detainer, ICE “shall promptly determine whether or
not to issue” the detainer. An alien taken into custody for this purpose is one who is physically taken into
custody and is “booked, charged or otherwise officially processed” or “provided an initial appearance before a
judicial officer where the alien has been informed of the charges and the right to counsel.” 8 CFR §287.1(d).
See in this section discussion at ¶ 1 (p.495), supra.
11. Time for Taking Person into Custody—Prisoner locations in the federal system may be obtained at
http://www.bop.gov/inmateloc. INA §287(d) provides that the AG “shall promptly determine” whether it will
issue a detainer when requested and “shall effectively and expeditiously take custody of the alien” where the
detainer is issued and the alien is not otherwise detained. INA §287(d), 8 USC §1357(d) Page 500 [S. 2479,
Sec. 5, 134 Cong. Rec. H. 9841 (Oct. 6, 1988)]. Regulations provide that DHS may request that state or
federal officials hold aliens for 48 hours plus weekends and holidays, solely based on a DHS detainer. 8 CFR
§287.7(d); see also DHS Form I-247A (Mar. 2017) explicitly stating in bold that a hold is only for 48 hours.
The form also advises the custodian: “The alien must be served with a copy of this form for the detainer to
take effect.” Id. The form now includes a section that requests the LEA report back to ICE service of the
detainer. Id. The forms further requests notification if the person is to be released or transferred or if the
person dies, and notes that the detainer “should not impact decisions about the subject’s bail, rehabilitation,
parole, release, diversion, custody, classification, work, quarter assignments, or other matters.” Id.
12. Cancelling the Detainer—The ICE detainer forms provide for the cancellation of the detainer where
warranted. See DHS Form I-247A (Mar. 2017).
13. Court in Pretrial Proceeding Makes Custody Determination, Not DHS—Some federal courts have taken
the view that the court’s decision to release a criminal defendant awaiting trial under the Bail Reform Act, 18
USC §§3142(e) supersedes DHS’s authority to take the defendant into immigration custody. U.S. v. Trujillo-
Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012) [ICE may not circumvent bail conditions by issuing a detainer and
keeping the defendant in immigration custody until his criminal case is completed. The Executive Branch
must either deport the defendant and give up the criminal proceeding or honor the bail order and release
defendant during the criminal proceeding where bail is granted under the Bail Reform Act]; U.S. v. Boutin,
269 F.Supp.3d 24 (E.D.N.Y. 2017); U.S. v. Ventura, 2017 WL 5129012 (E.D.N.Y. Nov. 3, 2017); U.S. v.
Galitsa, No. 17-cr-324-VEC (S.D.N.Y. July 28, 2017), available athttp://bit.ly/galitsa-2017-07-28; U.S. v.
Resendiz-Guevara, No. 2:15-cr-66-FtM-29CM, 2015 WL 7015564 (M.D. Fla. Nov. 12, 2015) [following
Trujillo-Alvarez]; U.S. v. Blas, 2013 WL 5317228(S.D. Ala. Sept. 20, 2013) [same]; U.S. v. Adomako, 150
F.Supp.2d 1302 (M.D. Fla. 2001). See also U.S. v. Lizardi-Maldonado, 275 F.Supp.3d 1284, 1294-1300 (D.
Utah 2017) [defendant with a final order of removal may nevertheless be released on certain restrictive
conditions as his release does not trigger the 90-day period for physical removal and his bail conditions are
consistent with the Bail Reform Act; any reading requiring detention based upon INA §241(a)(4)(A) in
combination with 18 USC §3142 would violate due process].
Some federal courts have held that the existence of an ICE detainer is only one factor the court may consider
in assessing flight risk for purposes of 18 USC §§3141-42, but is not dispositive. U.S. v. Xulam, 84 F.3d 441,
442 n.1 (D.D.C. 1996) [granting release despite existence of ICE detainer and noting that “[t]he fact that a
detainer has been lodged does not mean appellant necessarily will be taken into custody by the INS if
released by this Court”]; U.S. v. Tapia, 924 F.Supp.2d 1093, 1097 (D.S.D. 2013) [“Although a defendant’s
immigration history is relevant to a risk of flight analysis under the history and characteristics factor, evidence
of an ICE detainer alone does not merit detention under the Bail Reform Act”]; U.S. v. Chavez-Rivas, 536
F.Supp.2d 962, 964 & n.3 (E.D. Wis. 2008) [finding that defendant was not a flight risk despite existence of
ICE detainer]; U.S. v. Adomako, 150 F.Supp.2d 1302 (M.D. Fla. 2001) [finding the defendant’s “INS history”
including detainer were relevant factors, but did not justify detention]; U.S. v. Barrera-Omana, 638 F.Supp.2d
1108, 1111 (D. Minn. 2009); U.S. v. Villanueva-Martinez, 707 F.Supp.2d 855, 857 (N.D. Iowa). In contrast, in
the view of at least some courts, the possibility that a defendant, with an ICE detainer, if released from
federal custody will be deported and therefore not be present for trial is a sufficient basis to deny bond. U.S.
v. Ramirez-Hernandez, 910 F.Supp.2d 1155, 1159 (N.D. Iowa 2012) [government met its burden to establish
flight risk where it showed that “each of the defendants here has a prior removal order that would be
reinstated to remove defendants if placed in ICE custody” and thus removal was a “near certainty”]; U.S. v.
Ong, 762 F.Supp.2d 1353, 1363 (N.D. Ga. 2010) [because Ong would likely be removed and not allowed to
re-enter there are no conditions or set of conditions that will reasonably assure his presence at trial].
14. When Detainers May Be Issued—Generally, ICE policy now provides that a detainer may be issued upon
a determination of probable cause based on: (a) a final order of removal; (b) pending removal proceedings;
(c) a biometric confirmation of the subject’s identity and a records check of federal databases that indicate
the subject lacks immigration status; and/or (d) statements made voluntarily by the individual to an
immigration officer and/or other reliable evidence that indicates the subject lacks immigration status. See
DHS Form I-247A. Page 501
Some courts have held that consistent with the Fourth Amendment, detainers may be issued only upon
“probable cause” to believe that the individual is a noncitizen subject to removal. Morales v. Chadbourne, 793
F.3d 208 (1st Cir. 2015) [rejected qualified immunity because issuing a detainer without probable cause is a
clear violation of the Fourth Amendment and doing so based upon nationality is a clear violation of the equal
protection guarantees of the Fifth Amendment]; See Miranda-Olivares v. Clackamas Cnty., No. 3:12–cv–
02317–ST, 2014 WL 1414305 *11 (D. Or. Apr. 11, 2014) [absent probable cause the plaintiff’s detention on an
ICE detainer “was unlawful”].
15. The Interstate Agreement on Detainers (IAD)—The IAD, 18 USC §2, sets a 120-day time limit in which a
prisoner subject to a detainer is brought to trial. IAD Art. IV(c). Courts have found the IAD inapplicable to
DHS detainers because their proceedings are not criminal. See e.g., U.S. v. Gonzalez-Mendoza, 985 F.2d
1014 (9th Cir. 1993); Cabrera-Delgado v. U.S., 111 F.Supp.2d 415, 417 (S.D.N.Y. 2000) [defendant petitioner
was subject to a civil immigration detainer and so the Interstate Agreement on Detainers was no applicable];
Moreno Escobar v. DOJ, No. MISC.05-0048,2005 WL 1060635 (E.D. Pa. 2005) [same].
16. Return of Secure Communities and End of Priority Enforcement Program—The Priority Enforcement
Program (“PEP”) has been terminated and the corresponding memo regarding enforcement, Memo,
(Nov. 20, 2014), AILA Doc. No. 14112004, have been rescinded, and the Secure Communities Program has
been reinstated. EO 13768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017),
Secs. 5, 10, 82 FR 8799-8803 (Jan. 30, 2017), Memo, Kelly, Sec. DHS, Enforcement of the Immigration
Laws to Serve the National Interest (Feb. 20, 2017), ¶¶A-B, pp. 2-3, AILA Doc. No. 17021830[ending the
Priority Enforcement Program and re-establishing the Secure Communities program and rescinding the
Johnson Memo that created the Priority Enforcement Program]. See in this section “Priorities Potentially
Affecting Detainers,” ¶ 6 (p.497), supra. The new program will likely continue to rely on fingerprint-based
biometric data submitted during bookings by state and local law enforcement agencies to the FBI for criminal
background checks. DHS can only legally place a detainer on a person who is amenable to removal. 8 CFR
§287.7(a).
16.a. Secure Communities Returns—ICE program to identify, detain and remove noncitizens who have been
convicted of serious criminal offenses in the U.S. ICE Secure Communities Standard Operating
Procedures (Sept. 30, 2009), AILA Doc. No. 09110669. The program has three objectives: (i) identify
persons in federal, state and local custody charged with or convicted of a serious criminal offense who are
subject to removal and persons who are at large who are subject to removal because of previous criminal
offenses; (ii) prioritize enforcement actions to ensure apprehension and removal of aliens convicted of
serious criminal offenses; and (iii) transform criminal alien enforcement processes and systems to achieve
lasting results. According to the DHS Office of Inspector General, “The key component of Secure
Communities is automatic information sharing between the DHS’s Automated Biometric Identification
System (IDENT) and the Federal Bureau of Investigation’s (FBI) Integrated Automated Fingerprint
Identification System (IAFIS).… Prior to the implementation of Secure Communities, law enforcement
agencies sent fingerprints of arrested individuals to the FBI to determine whether the individuals had
outstanding warrants or a criminal history. Under Secure Communities, IAFIS automatically shares these
fingerprints with DHS to screen IDENT for removable aliens. If the fingerprints match a person with an
immigration record, the information is automatically sent to ICE’s Law Enforcement Support Center
(LESC). LESC personnel research each match, confirm the individual’s identity, and make an initial
determination on the individual’s criminal history and immigration status.… After the LESC makes its initial
determination, it alerts the appropriate ICE field office or one of ICE’s Interoperability Resource Centers
Field office personnel … and determine whether to detain and remove the individual.” DHS, Office of
Inspector General, Operations of the United States Immigration and Customs Enforcement’s Secure
Communities, OIG-12-64 at 2-4 (April 2012), AILA Doc. No. 12040947.
Despite some jurisdictions’ attempts to opt out of the program, every jurisdiction in the U.S. is now
engaged in the biometric information sharing process. See http://www.ice.gov/secure-communities. See
also DHS, Office of Inspector General, Operations of the United States Immigration and Customs
Enforcement’s Secure Communities, OIG-12-64 (April 2012), AILA Doc. No. 12040947. Page 502 DHS
maintains the position that an MOA is not necessary between a state and ICE to operate a secure
communities program locally within a state, Letter, Morton, Director, ICE, to Markell, Gov. of Delaware
(Aug. 5, 2011) and ICE, FAQs, Addendum to Governor Notifications (Aug. 5, 2011), AILA Doc. No.
11080520; Legal Memo, Ramlogan, Deputy Principal Legal Advisor, ICE (Oct. 2, 2010), AILA Doc. No.
12011774. The program has been the subject of unprecedented FOIA litigation. See e.g., National Day
Laborer Organizing Network v. ICE, 877 F.Supp.2d 87 (S.D.N.Y. 2012) [finding government search and
search terms inadequate in certain respects].
16.b. Complaint Procedure—DHS, through its Office for Civil Rights and Civil Liberties (CRCL), has
established a complaint procedure regarding state and local enforcement agencies in Secure
Communities. Memo, Schlanger, Officer for CRCL and Mead, Ex. Assoc. Dir., ICE, Secure Communities:
Complaints Involving State or Local Law Enforcement Agencies (June 14, 2011), AILA Doc. No.
11062130. Complaints against ICE should be filed with ICE’s Office of Professional Responsibility, Id. and
may also be filed with CRCL. 6 USC §345(a)(1).
Q. Bail Reform Act [18 USC §§3141-42]—The Bail Reform Act (BRA) in most respects makes no distinction
between persons lawfully or unlawfully in the U.S. and where a defendant meets conditions of bail, some courts
have held that ICE may not circumvent those conditions by issuing a detainer and keeping the defendant in
immigration custody until his criminal case is completed. U.S. v. Santos-Flores, 794 F.3d 1088, 1092 (9th Cir.
2015) [district court erred in relying on ICE detainer and probability of immigration detention and removal to find
no condition or combination of conditions will assure defendant’s appearance under 18 USC §3142(e)]; U.S. v.
Trujillo-Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012) [the Executive Branch must either deport the defendant and
give up the criminal proceeding or honor the bail order and release defendant during the criminal proceeding
where bail is granted under the BRA]. See also in this part ¶ P.13 (p.499), supra. The Bail Reform Act does
provided for a limited exception for brief detention for persons not lawfully in the U.S. 18 USC §3142(d), provides
for the “temporary detention” up to 10 days of a defendant who “is not a citizen of the United States or lawfully
admitted for permanent residence” and who poses a flight risk or danger to the community. Within the 10-day
period, the U.S. Attorney must notify DHS. U.S. v. Becerra-Cobo, 790 F.2d 427 (5th Cir. 1986). If DHS fails or
declines to take the person into custody within the 10-day period, the person is subject to ordinary federal bail
provisions. The decision to continue to incarcerate a noncitizen as a bail risk under 18 USC §3142(f) is
permissible, even if it is not within the first 5 days of arrest, so long as it is within 10-days under §3142(d). U.S. v.
Moncada-Pelaez, 810 F.2d 1008 (11th Cir. 1987). This pretrial incarceration provision should be applied
sparingly. U.S. v. Mendez-Hernandez, 747 F.Supp. 846 (D.P.R. 1990) [admonishing U.S. Attorney and
magistrate for interpreting the provision to permit pretrial detention for a minor immigration crime where there
was no showing of danger to the community].
R. Special Rules for Detention of Aggravated Felons, Persons Convicted of Certain Crimes, and Terrorists
[INA §236(c), 8 USC §1226(c)]
1. Detention Laws from 1988 to 1996—As a result of legislation in 1988, aggravated felons, including LPRs,
were for the first time subject to mandatory detention pending removal proceedings without the possibility of
release on bond. This mandatory detention provision was successfully challenged in many district courts.
Kellman v. District Director, 750 F.Supp. 625 (S.D.N.Y. 1990);Probert v. INS, 750 F.Supp. 252 (E.D. Mich.
1990), aff’d on other grounds, 954 F.2d 1253 (6th Cir. 1992) [involving an NIV holder and finding the limitation
on habeas authority under INA §242(a)(1) unconstitutional]; Paxton v. INS, 745 F.Supp. 1261 (E.D. Mich.
1990), dismissed as moot, 925 F.2d 1465 (6th Cir. 1991); Agunobi v. Thornburgh, 745 F.Supp. 533 (N.D. Ill.
1990); Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y. 1990);Davis v. Weiss, 749 F.Supp. 47 (D. Conn.
1990); Morrobel v. Thornburgh, 744 F.Supp. 725 (E.D. Wash. 1990). Amendments in IMMACT90 and the
1991 MTINA restored bond hearings for those aggravated felons who had been lawfully admitted to the U.S.,
including LPRs. Those individuals were eligible for bond if they could demonstrate that their release would
pose neither a danger or flight risk. See former INA §242(a)(2)(B), 8 USC §1252(a)(2)(B) (1994). However,
on Apr. 26, 1996, Congress enacted AEDPA which barred aggravated felons and others who had committed
criminal acts from release even if they were LPRs. These provisions were struck down by many district courts
on retroactivity and constitutional grounds. Lopez-Tellez v. INS, No. 96-1432-BTM (CGA) (S.D. Cal. Sept. 26,
1996) (Moskowitz, J); Grodzki v. Reno, 950 F.Supp. 339 (N.D. Ga. 1996); Montero v. Cobb, 937 F.Supp. 88,
92 (D. Mass. 1996); Page 503 Morales-Villagomez v. Smith, No. C96-1141C, 1996 WL 622451 (W.D. Wash.
July 21, 1996) (Coughneour, J.); Matter of Reyes, No. B-94-80 (S.D. Tex. May 31, 1996) (Vela, J.). See also
in this section “Constitutional and Statutory Challenges to Mandatory Detention,” ¶ 3 (p.504), infra.
Thereafter, on Sept. 30, 1996, the President signed IIRIRA, which mandated detention, without release, for
virtually all persons who have committed crimes (as well as persons removable on terrorism grounds).
However, the Transitional Period Custody Rules (TPCR) under IIRIRA §303(b) were invoked for 2 years from
Oct. 9, 1996, to Oct. 9, 1998. While the TPCR mandated detention of virtually all noncitizens with criminal
convictions, it permitted release of “lawfully admitted” noncitizens. Application of the TPCR was successfully
challenged. Pastor-Camarena v. Smith, 977 F.Supp. 1415 (W.D. Wash. 1997) [finding the “when released”
language in TPCR limited the provision’s application to persons with criminal convictions who were taken into
INS custody immediately upon release from incarceration].
2. The IIRIRA Provisions
2.a. Generally—INA §236(c) provides that the AG shall detain and shall not release the following categories
of persons who are subject to removal from the U.S.: (a) persons who are inadmissible by reason of
having committed any offense covered under INA §212(a)(2), 8 USC §1182(a)(2); (b) persons who are
deportable by reason of having committed 2 or more CIMTs, an aggravated felony, a drug offense, a
firearm offense, or a miscellaneous crime as defined in INA §237(a)(2)(D) (including espionage, sabotage,
or treason for which a term of imprisonment of 5 years or more may be imposed, threatening the
President in violation of 18 USC §871, violating the Neutrality Act under 18 USC §960, violating the
Selective Service Act or Trading with the Enemies Act, committing travel control crimes under 8 USC
§1185, or importing a person for an immoral purpose under INA §278, 8 USC §1328); (c) persons who
have committed a CIMT for which the sentence of imprisonment is at least one year; or (d) persons
involved in terrorist activity. The AG shall take them into custody “when the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned
again for the same offense.” If the person is subject to mandatory detention, the AG may only release
such person if he is involved in the Witness Protection Program or to protect another witness and the AG
is satisfied that the person will not pose a danger to the safety of either persons or property. The BIA has
held that a person need not be charged in the NTA with the crime that would subject him to mandatory
detention. Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007) [person apprehended at home while on probation
who was not charged in NTA with a crime that triggers mandatory detention is still subject to mandatory
detention]. The standard that ICE must meet to detain may be “reason to believe that this person was
convicted of a crime covered by the statute.” Diop v. ICE, 656 F.3d 221, 230-31 (3d Cir. 2011) [quoting
regulatory history at 63 FR 27444].
2.b. Applicability—Only persons who are “released after” Oct. 9, 1998, from non-DHS custody are subject to
mandatory detention. Matter of Garcia Arreola, 25 I&N Dec. 267, 269 (BIA 2010); Matter of Adeniji, 22 I&N
Dec. 1102, 1107–11 (BIA 1999) [construing IIRIRA §303(b)(2)].Therefore, persons who were released
from parole, supervised release, probation or other detention on or before Oct. 9, 1998 remain eligible for
a bond. Memo, Pearson, Ex. Asst. Comm. Field Operations (HQOPS (DDP) 50/10) (July 12, 1999),
reprinted in 76 No. 27 Interpreter Releases 1082, 1099–1102 (July 19, 1999). The Board has determined
that the “when released” language underINA §236(c)(1) requires that the person must be released from
physical custody for mandatory detention to apply. Matter of West, 22 I&N Dec. 1405 (BIA 2000) [where
person was sentenced to probation after the effective date of INA §236(c)(1), he was not subject to
mandatory detention because he was not “released” from physical custody]. However, the BIA has also
determined that the timing of “when” the person is released is not relevant as long as it is after the
effective date of INA §236(c)(1). Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) [person not currently in
criminal detention will be mandatorily detained if he was released from his criminal sentence after Oct. 9,
1998]. Moreover, the BIA has held that an arrest is enough to satisfy the physical custody requirement
even if no sentence was ever served for the crime. Thus, a person who is released from arrest after Oct.
9, 1998 is subject to mandatory detention even if he is not picked up until later at home while serving
probation and was never in physical custody after his conviction. Matter of Kotliar, 24 I&N Dec. 124 (BIA
2007) [person who did not serve a jail term for his criminal conviction, who was apprehended at home
while on probation instead of immediately after his Page 504 release from arrest, and who was not
charged in NTA with a crime, is still subject to mandatory detention because his arrest was post Oct. 9,
1998]. For a thoughtful discussion of the issues, see Straker v. Jones, 986 F.Supp.2d 345 (S.D.N.Y. 2014)
[rejecting Kotliar and finding West deserves deference]. For a further discussion of the “when released”
language see in this section ¶ 3.a(2) (p.505), infra.
ICE previously took the position that any post–Oct. 1998 release from criminal custody triggers mandatory
detention even if not for a crime that is a ground for mandatory detention, as long as the noncitizen was
previously convicted of such a crime. Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), rev’d, Saysana v.
Gillen, 590 F.3d 7 (1st Cir. 2009)[respondent subject to mandatory detention for pre–Oct. 9, 1998
conviction for indecent assault and battery despite the completion of his sentence before the law’s
effective date where he was arrested for a nonmandatory crime (failure to register as a sex offender) after
Oct. 9, 1998 even though the charges for the nonmandatory crime were dismissed]. This position was
almost universally rejected by the courts. Recognizing that rejection, the Board reversed Saysana and
now holds that a post-Oct. 1998 release from criminal custody triggers mandatory detention only if the
conviction falls within INA §236(c). Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010). For a further
discussion, see in this section ¶ 3.a(3) (p.506), infra.
2.c. Effective Date—The effective date of INA §236(c) was Apr. 1, 1997, unless the AG notified Congress of
the lack of detention space, thereby invoking the TPCR and delaying implementation of INA §236(c) for
one year. On Oct. 9, 1996, the INS Commissioner so notified the House Committee on the Judiciary.
Letter, Meissner, Commissioner, HQCOM 50/12.1.1 (Oct. 9, 1996), AILA Doc. No. 96101590. A second
notification was sent on Oct. 9, 1997, delaying implementation of INA §236(c) until Oct. 9, 1998, reported
in 74 No. 39 Interpreter Releases 1,552–53 (Oct. 10, 1997). The extension under the TPCR expired Oct.
9, 1998.
2.d. Procedures Under Mandatory Detention
(1) Joseph Hearing—Although IJs do not have authority to release a person subject to mandatory
detention, they retain jurisdiction to determine whether the person is “properly included” within the
mandatory detention provision. 8 CFR §1003.19(h)(2)(ii). This hearing is referred to as a “Joseph”
hearing based upon the BIA’s decision in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), which sets
the standard for making this determination. Under Joseph, a person is “properly included” with the
mandatory detention statute unless DHS is “substantially unlikely to prevail” on its charges that the
person is removable on one of the grounds designated in INA §236(c). See also Garza-Garcia v.
Moore, 539 F.Supp.2d 899 (S.D. Tex. 2007) [refusing to apply the Joseph hearing to an “arriving alien”
subject to mandatory detention is unconstitutional under Demore v. Kim because Demore was not
limited to detained persons who were not arriving aliens]. But see Tijani v. Willis, 430 F.3d 1241, 1244-
47 (9th Cir. 2005) (Tashima, J., concurring) [rejecting Matter of Joseph standard as a violation of due
process, and arguing that INA §236(c) cannot constitutionally be applied to any person who has a
“substantial” argument against removability]. See also Gonzalez v. O’Connell, 355 F.3d 1010, 1019–21
(7th Cir. 2004) [noting that Demore left open the question of whether INA §236(c) would be
constitutional as applied to an individual who raised colorable challenges to deportability, but finding no
colorable claim in petitioner’s case].
(2) Notice—If the government has not charged the person with a crime that would result in mandatory
detention in the NTA, it must give notice of the basis for mandatory detention and provide an
opportunity to challenge the detention before the IJ in a Joseph hearing. Matter of Kotliar, 24 I&N Dec.
124 (BIA 2007) [person charged in NTA as overstay was entitled to basis for mandatory detention and
opportunity to challenge it].
(3) Automatic Stay—If an IJ issues an order releasing respondent on the grounds that he is not “properly
included” within the mandatory detention provision, DHS may obtain an automatic stay of the order
simply by filing a notice of intent to appeal on EOIR-43. 8 CFR §1003.19(i)(2); see in this part “Appeals
to BIA,” ¶ N.9 (p.490), supra. Matter of Joseph, 22 I&N Dec. 660 (BIA 1999) [automatic stay of IJ order
granted notwithstanding IJ’s finding that person is not an aggravated felon and not subject to
mandatory detention]. In 2006, the automatic-stay regulations were revised to include an automatic 90-
day lapse provision. Page 505 Prior to this change, a number of courts found the automatic-stay
provision unconstitutional. Uritsky v. Ridge, 286 F.Supp.2d 842 (E.D. Mich. 2003); Bezmen v. Ashcroft,
245 F.Supp.2d 446 (D. Conn. 2003). Accord Zabadi v. Chertoff, No. C 05-01796 WHA, 2005 WL
1514122 (N.D. Cal. June 17, 2005) and No. C 05-03335 WHA, 2005 WL 3157377 (N.D. Cal. Nov. 22,
2005); Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. 2004); Ashley v. Ridge, 288 F.Supp.2d 662
(D.N.J. 2003) [automatic-stay provision violates substantive and procedural due process for person
who is not subject to mandatory detention and is not a national security threat]. But see Pisciotta v.
Ashcroft, 311 F.Supp.2d 445, 453–56 (D.N.J. 2004) [stay provision is not unconstitutional under
Demore].
2.e. Constitutionality—The Supreme Court has held that the mandatory detention provision including
detention of an LPR under INA §236(c) did not violate due process: (1) when the petitioner conceded
deportability as an aggravated felon and did not request a hearing as to whether he was properly subject
to mandatory detention under the statute; and (2) where the detention was for the brief period of time
necessary to complete removal proceedings which the government asserted on average was 1 ½ to 5
months. Demore v. Kim, 538 U.S. 510 (2003). See in this chapter ¶ IV.M.5 (p.236), supra.
3. Constitutional and Statutory Challenges to Mandatory Detention and Prolonged Detention Without
Bond Hearing—Detention without release provisions have been challenged on various grounds.
3.a. Statutory Challenges
(1) A principal statutory challenge to mandatory detention under INA §236(c) has been a challenge to its
retroactive application. This challenge was based both on the language of INA §236(c)(1) which states
that the AG “shall detain” designated individuals “when … released” as well as the effective date
language in IIRIRA which states that INA §236(c) will apply to persons “released after” the expiration of
the Transitional Period Custody Rules (TPCR).Notwithstanding this language, upon expiration of the
TPCR in October 1998, INS began applying INA §236(c) to individuals who had been released from
incarceration years before, or who had never been incarcerated for the offense in the first place.
Numerous successful challenges followed: Grant v. Zemski, 54 F.Supp.2d 437, 439–41 (E.D. Pa.
1999) [INA §236(c) cannot be applied retroactively to persons released from incarceration prior to Oct.
9, 1998]; Velasquez v. Reno, 37 F.Supp.2d 663 (D.N.J. 1999) [same]; Saucedo-Tellez v. Perryman, 55
F.Supp.2d 882 (N.D. Ill. 1999) [same]; Aguilar v. Lewis, 50 F.Supp.2d 539, 542–44 (E.D. Va. 1999)
[same]; Alwaday v. Beebe, 43 F.Supp.2d 1130 (D. Or. 1999).As a result of these statutory challenges,
the Service changed its policy of retroactively applying INA §236(c) to individuals who had finished
serving their criminal sentences years before. Memo, Pearson, Ex. Asst. Comm. Field Operations
(HQOPS (DDP) 50/10) (July 12, 1999), reprinted in 76 No. 27 Interpreter Releases 1082, 1099–1102
(July 19, 1999) [applying INA §236(c) only to persons released from criminal incarceration on or after
Oct. 9, 1998]. The BIA also adopted this interpretation of the statute. Thus, only persons released from
non-DHS custody after Oct. 9, 1998 may be subject to mandatory detention. Matter of Garcia Arreola,
25 I&N Dec. 267, 269 (BIA 2010); Matter of Adeniji, 22 I&N Dec. 1102, 1107–11 (BIA 1999) [mandatory
detention does not apply to persons who completed their criminal custody prior to Oct. 10, 1998 based
upon the TPCR language that INA §236(c) only applies to persons “released after” the TPCR expired].
Prior to IIRIRA, numerous courts used similar reasoning to reject the retroactive application of the
AEDPA mandatory detention provision at §440(c). See e.g., Lopez-Tellez v. INS, No. 96-1432-BTM
(CGA) (S.D. Cal. Sept. 26, 1996); Grodzki v. Reno, 950 F.Supp. 339 (N.D. Ga. 1996); Montero v.
Cobb, 937 F.Supp. 88 (D. Mass. 1996);Morales-Villagomez v. Smith, No. C96-1141C, 1996 WL
622451 (W.D. Wash. July 21, 1996); Matter of Reyes, No. B-94-80 (S.D. Tex. May 31, 1996).
(2) Litigation has also focused on whether the “when released” language limits INA §236(c)’s applicability
to individuals who are taken into ICE custody immediately upon release from relevant criminal custody
for their offenses. The Board has held that the “when released” language in INA §236(c)(1) does not
limit the class of people subject to mandatory detention under §236(c) but merely directs ICE as to
when it should take them into custody. Matter of Rojas, 23 I&N Dec. 117 (BIA 2001). Page 506 Thus,
the BIA has also held that the timing of release is not relevant as long as it is after the effective date
(Oct. 9, 1998) of INA §236(c)(1). Id. [person subject to mandatory detention even if INS does not
immediately take him into custody when he is released from his criminal sentence]; Lora v. Shanahan,
804 F.3d 601, 610-13 (2d Cir. 2015) [followed Rojas under Chevron Step 2]; Olmos v. Holder, 780 F.3d
1313 (10th Cir. 2015) [found Rojas interpretation permissible under Step 2 of Chevron where
respondent was released from criminal detention for 6 days]; Sylvain v. U.S. Att’y Gen., 714 F.3d 150
(3d Cir. 2013) [language of statute supports Rojas and reads duty to detain as not time-constrained
despite 4-year delay in taking respondent into detention]; Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)
[applying Step 2 of Chevron to Matter of Rojas]; Khetani v. Petty, 859 F.Supp.2d 1036 (W.D. Mo. 2012)
[followed Rojas under Chevron deference and Kotliar].
But see Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016), cert granted sub nom. Nielsen v. Preap, 138
S.Ct 1279 (Mar. 19, 2018) [statute unambiguously imposes mandatory detention only on those aliens
promptly taken into immigration custody by the AG when they are released from criminal custody and
person taken into custody not in compliance with the “when released” language is entitled to a bond
hearing under 1226(a)]; Castañeda v. Souza, 810F.3d 15 (1st Cir. 2015) (en banc), aff’g, by an equally
divided court, Castañeda v. Souza, 952 F.Supp.2d 307 (D. Mass. 2013) and Gordon v. Johnson, 991
F.Supp.2d 258 (D. Mass. 2013); rejecting the government’s argument that “when released” means
“any time after;” finding Matter of Rojas contrary to the statute and legislative history under step-one of
Chevron; and holding that “when released” means the government need not pick up the person
“immediately” but must do so within a “reasonable” period of time]; But see Gordon v. Lynch, 842 F.3d
66 (1st Cir. 2016) [reversing district court’s bright line 48 hour test and remanding case back to
consider agency’s interpretation of the appropriate time period for “when” ICE would have to pick up
the person]; Rosciszewski v. Adducci, 983 F.Supp.2d 910, 914-17 (E.D. Mich. 2013) [when contains a
temporal element, is unambiguous, and the 3rd/4th circuits’ interpretations would render the language
surplusage]; Louisaire v. Muller, 758 F.Supp.2d 229, 236 (S.D.N.Y. 2010); Khodr v. Adduci, 697
F.Supp. 774, 777-81 & n.2 (E.D. Mich. 2010) [distinguishing Rojas and holding that the “when
released” language is unambiguous and only triggers mandatory detention at the time the person is
being released from physical custody and not later].
(3) The BIA has held that “release” after Oct. 9, 1998 must be from physical custody for mandatory
detention to apply. Matter of West, 22 I&N Dec. 1405 (BIA 2000) [where person was sentenced to
probation he was not subject to mandatory detention because he was not “released” from physical
custody]. See also Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007) [person who did not serve a jail term
for his criminal conviction, who was apprehended at home while on probation instead of immediately
after his release from arrest, and who was not charged in NTA with a crime, is still subject to
mandatory detention because his arrest was post Oct. 9, 1998]. But see Lora v. Shanahan, 804 F.3d
601, 609-10 (2d Cir. 2015) [bypassing Matter of West and Matter of Kotliar and finding that once a
person is convicted of a crime described in INA §236(c)(1) he is subject to mandatory detention
whether or not he is incarcerated, imprisoned, or otherwise detained]. The BIA has also determined
that post–Oct. 9, 1998 release from criminal custody triggers mandatory detention only if the custody is
associated with the crime that is a ground for mandatory detention. Matter of Garcia Arreola, 25 I&N
Dec. 267 (BIA 2010) [reversing its prior position in Matter of Saysana, 24 I&N Dec. 602 (BIA 2008),
rev’d, Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009) that any release from any criminal custody post-
Oct. 1998 triggered the mandatory detention statute so long as the person had a predicate crime pre-
Oct. 1998].
3.b. Constitutional and Statutory Challenges to Mandatory Detention of Individuals with “Substantial
Challenges” to Removal—The Supreme Court upheld the constitutionality of INA §236(c). Demore v. Kim,
538 U.S. 510 (2003) [mandatory detention, for a brief period of time, of an LPR who conceded
deportability as an aggravated felon, and did not request a hearing to challenge whether he was properly
subject to the mandatory detention statute, did not violate due process, notwithstanding the lack of any
hearing to determine whether he was a flight risk or likely to Page 507 abscond]. However, Demore left
open the question whether INA §236(c) would be constitutional as applied to an individual who raised
colorable challenges to deportability. See Gonzalez v. O’Connell, 355 F.3d 1010, 1019-21 (7th Cir. 2004).
Some courts have recognized that mandatory detention in these circumstances raises serious due
process concerns. See e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) (Tashima, J., concurring)
[rejecting Matter of Joseph standard as a violation of due process and arguing that INA §236(c) cannot
constitutionally be applied to any person who has a “substantial” argument against removability].
3.c. Constitutional and Statutory Challenges to Prolonged Detention Without Bond Hearing
(1) Generally—The Supreme Court upheld the constitutionality of INA §236(c). Demore v. Kim, 538 U.S.
510 (2003) [mandatory detention, for a brief period of time, of an LPR who conceded deportability as
an aggravated felon, and did not request a hearing to challenge whether he was properly subject to the
mandatory detention statute, did not violate due process, notwithstanding the lack of any hearing to
determine whether he was a flight risk or likely to abscond]. In his concurring opinion in Demore,
Justice Kennedy, however, recognized that a person subject to mandatory detention “could be entitled
to an individualized determination as to his risk of flight and dangerousness if the continued detention
became unreasonable or unjustified” Demore, 538 U.S. at 532 (Kennedy, J., concurring). Moreover,
the majority opinion in Demore emphasized that detention pending removal proceedings was relatively
brief—generally less than 45 days for those who do not appeal to the BIA, and 4-5 months for those
who do appeal. The Solicitor General of the U.S. acknowledged that the evidence presented to the
Court in Demore was incorrect as the average length of detention was considerably longer. Letter,
Gershengorn, Acting S.G., (Aug. 26, 2016) [average length of detention for someone on appeal was
382 days and cases were appealed more often than the court was told]. However, subsequent to
Demore, in Jennings v. Rodriguez the Court determined that INA §235(b), §236(a), and §236(c) do not
necessarily compel a bond determination during prolonged detention. Jennings v. Rodriguez, 583 U.S.
__, 138 S.Ct. 830 (2018) [INA §235(b), §236(a), and §236(c), cannot be plausibly read to include a
prohibition against prolonged detention (more than 6 months) and to include a requirement that the
government must provide by clear and convincing evidence that detention remains justified; remanded
for an analysis of constitutional and class claims].
See also Ziglar v. Abbasi, 582 U.S. __, 137 S.Ct. 1843, 1865-69 (2017) [in §1985(3) civil rights
conspiracy claim the law was not clearly established that officials of the same department (DOJ) could
have a conspiracy among themselves to create detention policies during 9/11 that violated equal
protection and due process; the Court however remanded as to prisoner abuse claims]; Hussain v.
Mukasey, 510 F.3d 739, 742–44 (7th Cir. 2007) [no jurisdiction to challenge pre–final order of detention
under INA §242(a)(2)(B)(ii) and court could not enter order releasing petitioner while merits appeal is
pending but would have to remand release issue to district court; court did not rule out a constitutional
challenge for inordinate delay in certain circumstances]; Soberanes v. Comfort, 388 F.3d 1305, 1311
(10th Cir. 2004) [reading Zadvydas and Demore to permit detention while removal proceeding and
review is ongoing but recognizing that subsequent delays may warrant remedial action]. But see
Garza-Garcia v. Moore, 539 F.Supp.2d 899 (S.D. Tex. 2007) [refusing to provide a Matter of
Josephhearing to an “arriving alien” subject to mandatory detention for over a year is unconstitutional
under Demore because Demore was not limited to detained persons who were not arriving aliens].
(2) Prolonged Detention Pending Judicial Review and Stay of Removal—Courts are divided as to what
statute governs detention pending judicial review when there has been a stay of removal. The circuits
that have analyzed the issue have found that INA §236 continues to apply because the grant of a stay
delays the start of the removal period. See e.g., Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008)
[finding that INA §236(a) and not INA §236(c) or INA §241(a) applies to LPR subject to prolonged
detention who obtained a stay of removal and had a petition for review pending that was successful];
Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) [same as Casas-Castrillon in nonmandatory
detention context and finding that INA §236(a) applies]; Leslie v. U.S. Att’y Gen., 678 F.3d 265 (3d Cir.
2012) Page 508 [ordered bond hearing after nearly four years of detention spanning both
administrative removal proceedings and judicial review of removal order where removal is stayed]. See
also Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) [holding that INA §236 applies pending judicial stay
of removal]; Bejjani v. INS, 271 F.3d 670, 689 (6th Cir. 2001) abrogated on other grounds by
Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) [holding that INA §241 does not authorize
detention pending judicial stay of removal]. But see Akinwale v. Ashcroft, 287 F.3d 1050 (11th Cir.
2002) (per curiam) [assuming, without analysis, that a stay serves to “suspend” the removal period,
and that detention pending a judicial stay is therefore governed by INA §241(a)(2)]
ICE, however, takes the position that INA §241 governs, that the act of seeking a stay of removal
serves to suspend the 90-day removal period and that no bond is available under INA §241. Id. The
Ninth Circuit has held that INA §241 applies where removal is stayed pending appeal of a denied
motion to reopen. Diouf v. Mukasey, 542 F.3d 1222 (9th Cir. 2008). See in this chapter, “Application of
INA §236 or INA §241,” ¶ V.18 (p.709), infra. Regardless of which statute applies, numerous courts
have found that prolonged detention pending a stay of removal raises serious due process concerns
under the principles of Zadvydas and Demore and have either ordered release or a meaningful
custody hearing on due process grounds or have construed the statute to so require. See e.g., Diouf v.
Napolitano, 634 F.3d 1081 (9th Cir. 2011) [noncitizens who are detained for six months or longer after
entry of a final order of removal under INA §241 are entitled to a bond hearing; finding that
“[r]egardless of the stage of the proceedings, the same important interest is at stake–freedom from
prolonged detention. The liberty interests of persons detained under [INA §241(a)(6)] are comparable
to those of persons detained under [INA §236(a)]”]; Khalafala v. Kane, 836 F.Supp.2d 944 (D. Ariz.
2011) [when stay of removal was denied by circuit court, the 90-day period began and petitioner’s
detention beyond 180 days required consideration of a bond under INA §241 pursuant to Diouf];
Monestime v. Reilly, 704 F.Supp.2d 453 (S.D.N.Y. 2010) [8month detention unconstitutional because it
exceeds the 5-month limit in Demore, the 6month limit in Zadvydas, and courts have granted a right to
a bond hearing whether under INA §§236(a), (c) or 241(a)]; D’Alessandro v. Mukasey, 628 F.Supp.2d
368 (W.D.N.Y. 2009) [agreed stay pending decision does not toll 90-day period and prolonged
detention for 16 months violated both Zadvydas and agency regulations under 8 CFR §241.4(c), which
ICE failed to follow]; Alafyouny v. Chertoff, No. 3:06 CV 0204 M, 2006 WL 1581959 (N.D. Tex. May 19,
2006) [ordering interview and individualized custody determination for person detained 2 years
pending judicial review of removal order that had been stayed]; Oyedeji v. Ashcroft, 332 F.Supp.2d 747
(M.D. Pa. 2004) [applying Zadvydas principles to release individual who was detained pending federal
court review]; Lawson v. Gerlinski, 332 F.Supp.2d 735 (M.D. Pa. 2004) [long-term LPR who obtained
stay and remained in detention for 18 months was granted release pending evidentiary hearing on
underlying substantive due process claim to remain in the U.S.]; Haynes v. DHS, 2005 WL 1606321
(M.D. Pa. July 8, 2005).
But see Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th Cir. 2004) [reading Zadvydas and Demore to
permit detention while removal proceedings and review is ongoing, but recognizing that subsequent
delays may warrant remedial action]; Hussain v. Mukasey, 510 F.3d 739, 742–44 (7th Cir. 2007)
[agreeing that due process imposes limits on prolonged pre–final order mandatory detention, but
finding no jurisdiction to order release once removal order was pending review in the court of appeals];
Luna-Aponte v. Holder, 743 F.Supp.2d 189, 196-97 (W.D.N.Y. 2011) [3-year detention during time
petitioner is seeking to vacate conviction is not unreasonable or unconstitutional].
3.d. Other Challenges to Detention
(1) Post–Final Order Indefinite Detention—Zadvydas v. Davis, 533 U.S. 678, 691–702 (2001) [indefinite
detention for persons with final orders who cannot be removed to any country raises serious due
process concerns because “[f]reedom from imprisonment—from government custody, detention, or
other forms of physical restraint—lies at the heart of the liberty that Clause protects.”]; Clark v.
Martinez, 543 U.S. 371 (2005) [applying Zadvydas’s 6-month ruling to inadmissible persons stopped at
the border; finding that INA §241(a)(6) authorizes post–final order detention of such persons only for
the period reasonably necessary to effectuate removal Page 509 (6 months)]; Morales-Fernandez v.
INS, 418 F.3d 1116, 1122–25 (10th Cir. 2005) [post-Clark decision finding it impermissible to hold
Mariel Cuban parolee beyond 6 months]; Rosales-Garcia v. Holland, 322 F.3d 386, 403–15 (6th Cir.
2003) (en banc) [pre-Clark decision finding indefinite detention of Mariel Cubans would violate both the
statute (as construed by Zadvydas) and the due process clause of the Fifth Amendment]; Bah v.
Cangemi, 489 F.Supp.2d 905, 915–24 (D. Minn. 2007) [applying an “unencumbered-time” approach in
determining that despite periods of time that stopped the 6 months post–final order from running,
applicant had more than 6 months that were “unencumbered” and therefore should be released];
Caballero v. Caplinger, 914 F.Supp. 1374 (E.D. La. 1996) [Cuban EWI subjected to indefinite
mandatory detention under former 8 USC §1252(a)(2)(A) could not be denied right to bond hearing
under the Due Process Clause and the Eighth Amendment]. For additional discussion, see in this part
“Mandatory Detention During Removal Period,” ¶ V.9 (p.698), infra.
(2) Discretionary Decisions May Be Reviewed Where They Raise Constitutional/Legal Issues—Courts
have found jurisdiction to review even discretionary detention (or supervision) decisions where the
detention violates due process or exceeds statutory authority. See Al-Siddiqi v. Achim, 531 F.3d 490,
494–95 (7th Cir. 2008) [challenge to DHS’s refusal to honor IJ’s bond order may be a violation of due
process and is reviewable]; Yusov v. Shaughnessy, 671 F.Supp.2d 521, 529–30 (S.D.N.Y. 2009) [court
has jurisdiction to review long term supervision conditions but found 3-month reporting requirement
constitutional]; Mau v. Chertoff, 562 F.Supp.2d 1107 (S.D. Cal. 2008) [reversing $100,000 bond and
ordering petitioner’s release on theory of continuing supervision arising from original order requiring
bond hearing]; Dela Cruz v. Napolitano, 764 F.Supp.2d 1197, 1199-1200 (S.D. Cal. 2011) [court had
jurisdiction to determine whether IJ improperly exercised his discretion in considering factors not
explicitly set forth in Matter of Guerra but found no error except that IJ failed to articulate clear and
convincing standard of proof ]; Judulang v. Chertoff, 562 F.Supp.2d 1119, 1125–27 (S.D. Cal. 2008)
[court’s continuing jurisdiction over original order directing bond hearing gives it authority to review IJ’s
denial of bond on grounds of threat to society]; Straube v. Chertoff, 560 F.Supp.2d 983, 9866–88 (N.D.
Cal. 2008) [following Nadarajah and Tijani and ordering bond hearing where person was in
nonmandatory detention for 4 years under INA §236(a) during removal proceedings]; Mau v. Chertoff,
549 F.Supp.2d 1247 (S.D. Cal. 2008) [same as Straube for person in detention more than 40 months];
U.S. v. Grand China, Inc., 376 F.Supp.2d 1150 (D.N.M. 2005) [reviewing but upholding ICE denial of
bond]. But see Prieto-Romero v. Clark, 534 F.3d 1053, 1067 (9th Cir. 2008) [INA §236(e) bars review
of excessive bond amount]; Pisciotta v. Ashcroft, 311 F.Supp.2d 445, 453 (D.N.J. 2004) [the decision
by ICE to re-detain petitioner without bond or revoke his previous status because his removal hearing
was reopened, notwithstanding a previous $12,000 bond, is not reviewable]; Loa-Herrera v. Trominski,
231 F.3d 984, 990–91 (5th Cir. 2000) [pre-Demore decision finding that INA §236(e) barred district
court from considering challenge to lack of parole hearing for LPR stopped at the border].
(3) Detention Without Hearing Before Impartial Adjudicator—Casas-Castrillon v. DHS, 535 F.3d 942 (9th
Cir. 2008) [ordering bond hearing for LPR who has been detained for 7 years and his case was
remanded to BIA]; Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) [ordering bond hearing for
returning LPR, based upon retroactivity issues, who post-IIRIRA, was deemed an “arriving alien”];
Chen v. Aitken, 917 F.Supp.2d 1013 (N.D. Cal. 2013) [returning LPR treated as arriving alien and
subject to detention pursuant to INA §235(b) is eligible for bond hearing after 7 months in detention];
Del Toro-Chacon v. Chertoff, 431 F.Supp.2d 1135, 1140–43 (W.D. Wash. 2006) [although it was
unclear whether the person was detained under INA §236 or INA §241, it was a violation of due
process to deny bond hearing before a neutral adjudicator]; Monestime v. Reilly, 704 F.Supp.2d 453
(S.D.N.Y. 2010) [8-month detention unconstitutional because it exceeds the 5-month limit in Demore,
the 6-month limit in Zadvydas, and courts have granted a right to a bond hearing whether under INA
§§236(a), (c) or 241(a)]; Cabreja-Rojas v. Reno, 999 F.Supp. 493 (S.D.N.Y. 1998) [unconstitutional
under Eldridge to deny returning LPR a hearing before an independent IJ]; St. John v. McElroy, 917
F.Supp. 243 (S.D.N.Y. 1996) Page 510 [finding mandatory detention of returning LPR unconstitutional
and ordering custody hearing before impartial adjudicator]; Thomas v. McElroy, No. 96-CV-5065
(JSM), 1996 WL 487953 (S.D.N.Y. Aug. 23, 1996) (Martin, J) [same]; Cruz-Taveras v. McElroy, No. 96-
CV-5068, 1996 WL 455012, (S.D.N.Y. Aug. 12, 1996) [same]; Ekekhor v. Aljets, 979 F.Supp. 640 (N.D.
Ill. 1997) [same with respect to mandatory detention of returning LPR under the TPCR]; Caballero v.
Caplinger, 914 F.Supp. 1374 (E.D. La. 1996) [former INA §242(a)(2)(B) barring bail to EWI is
unconstitutional]. But see Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003) [rejecting retroactivity
argument and upholding denial of bond hearing to returning LPR without addressing due process
issue].
(4) Medical Release—Some courts have entertained release where health related issues have been
raised notwithstanding mandatory detention. Diaz v. McElroy, 134 F.Supp.2d 315, 320 (S.D.N.Y. 2001)
[denying release because there was no indication that seizures were left untreated or that
respondent’s medical condition was deteriorating]. Others have required medical treatment. Rosemarie
M. v. Morton, 671 F.Supp.2d 1311 (M.D. Fla. 2009) [preliminary injunction granted to ensure medical
treatment in light of “deliberate indifference” in treatment for serious gynecological problems].
(5) Bivens Action for Unlawful Detention—There may also be jurisdiction for a Bivens claim challenging
discrimination. Kwai Fun Wong v. U.S., 373 F.3d 952, 968–75 (9th Cir. 2004) [Bivens claim for
discrimination regarding the revocation of parole and rejection of AOS was actionable because the
entry fiction applies to a narrow class of procedural rights and does not apply to all constitutional
claims of nonadmitted persons; granting qualified immunity]; Martinez-Aguero v. Gonzales, 459 F.3d
618 (5th Cir. 2006) [entry fiction did not bar Bivens claim for false imprisonment and excessive force at
port of entry]. But see Alvarez v. ICE, 818 F.3d 1194, 1201-13 (11th Cir. 2016) [although not barred by
INA §242(g), no Bivens action for prolonged detention, absent ICE actively preventing detainee from
seeking any meaningful review and relief, because the INA sets out sufficient meaningful remedies
and special factors counsel against supplementing the scheme]; Arar v. Ashcroft, 585 F.3d 559, 573–
81 (2d Cir. 2009) (en banc) [Bivens action is unavailable for claim of extraordinary rendition because
national security and foreign policy questions, classified information, the perception we lack open
courts, and the possibility of graymail against the government counsels against creating a remedy];
Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007)[Bivens claim under the Fourth Amendment for
improper detention of temporary resident in summary removal is barred by INA §242(g) in the limited
circumstance where he could have challenged detention in habeas under INA §242(e)(2)]; Foster v.
Townsley, 243 F.3d 210 (5th Cir. 2001) [INA §242(g) bars jurisdiction over claims arising from decision
to execute removal order]; Humphries v. Various Fed. U.S. INS Employees, 164 F.3d 936 (5th Cir.
1999) [INA §242(g) bars jurisdiction over claim of retaliatory exclusion but not over claims of
involuntary servitude and mistreatment in detention]; Khorrami v. Rolince, 493 F.Supp.2d 1061 (N.D.
Ill. 2007) [finding no jurisdiction over some but not all claims]. But see Medina v. U.S., 92 F.Supp.2d
545 (E.D. Va. 2000) [disagreeing with Humphries].For a more detailed discussion regarding Bivens
claims and claims under the Federal Tort Claims Act, see Chapter 11, Part II (p.2005), infra (FTCA),
and Part III (p.2010), infra (Bivens).
(6) Court’s Authority to Set Bail to Remedy Unlawful Detention—Upon finding a constitutional or statutory
violation, the court may decide whether the appropriate remedy is to hold its own bond hearing or
remand the case to the immigration court for a hearing. See e.g., Leslie v. Holder, 865 F.Supp.2d 627
(M.D. Pa. 2012) [followed Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001) criteria and set bond without
remanding to IJ and criteria was unrelated to success in immigration proceeding]; Flores-Powell v.
Chadbourne, 677 F.Supp.2d 455, 464–79 (D. Mass. 2010) [detailed discussion regarding the proper
remedy and concluding that the court should hold a bond hearing rather than remanding the case
under INA §236(a) to the IJ for what may be a lengthy proceeding].
The Second Circuit has held that federal courts have the authority to set bail where setting bail is
necessary to make the habeas remedy effective. Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001) [district
courts have authority to grant bail while habeas petition is pending where to Page 511 do so is
“necessary to make the habeas remedy effective”]. Following Mapp, the Second Circuit found it has
the inherent authority to grant bond while a petition for review is pending where petitioner presented a
substantial claim and extraordinary circumstances make the grant of bail necessary to make the
petition for review remedy effective. Elkimya v. DHS, 484 F.3d 151 (2d Cir. 2007) [court has inherent
authority to grant bail pending resolution of a petition for review of returning LPR, but finding no
extraordinary circumstances permitting bail]; but see Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007)
[inherent authority to admit persons to bail does not extend to persons deemed inadmissible at the
border because it is contrary to the INA].
S. Mandatory Detention of Suspected Terrorists [INA §236A, 8 USC §1226a; USA PATRIOT Act, PL 107-56
§412]
1. Generally—The AG is authorized to mandatorily detain any alien it has certified as having reasonable
grounds to believe is a person described in INA §237(a)(4)(A)(i) [engage in espionage, sabotage, or export
control], §237(a)(4)(A)(iii) [opposition by violence or overthrow of U.S. government], or §212(a)(4)(B) [terrorist
activity]. The certification may only be made by the AG or the Deputy AG, and may not be delegated further.
The AG may detain the person for up to 7 days prior to placing him in removal proceedings or charging him
criminally. INA §236A(a)(5). If the person is not placed in removal proceedings or criminally charged the AG
“shall release the alien.” If placed in proceedings, the AG shall mandatorily detain even if the person is
eligible for relief or obtains relief (such as CAT) until the AG determines that he no longer has reason to
believe that the person falls under one of the bases for certification. However, if the person is found not to be
removable (i.e., prevails in his removal proceeding), detention shall terminate. The AG shall review his
certification subjecting the person to mandatory detention every 6 months and the detainee may request
such review every 6 months and may submit documents and other evidence in support of his or her request.
A detainee who has been ordered removed, but whose removal is unlikely in the reasonably foreseeable
future may be detained for additional 6-month periods only if release will threaten the national security or the
safety of the community or any person.
A person may seek habeas review of the AG’s certification or his decision to keep someone in detention who
is unlikely to be removed in the foreseeable future. INA §236A(b). The habeas court must apply the law of
the Supreme Court and the D.C. Circuit. All appeals go to the D.C. Circuit.
ICE may also detain suspected terrorists pursuant to INA §236(c)(1)(D) if they are inadmissible or deportable
on terrorist grounds. The regulations at 8 CFR §1003.19(h)(1)(i)(C) also authorize mandatory detention for
individuals “described in INA §237(a)(4).”
2. Military Commissions Acts of 2006 & 2009 [PL 109-366 & 111-84]; Authorization for Use of Military
Force [PL 107-40, 115 Stat. 224 (2001)]
These laws establish a statutory framework for the trial and appellate review of “alien unlawful enemy
combatants.” The 2006 Act established a military commissions to try such persons, 10 USC ch. 47A,
prohibited the use of the Geneva Convention as a source of rights, 10 USC §948b(g), allowed the use of
hearsay evidence and restricted the use of classified information, 10 USC §§949a, 949d, prohibited the
invocation of the Geneva Convention in any habeas proceeding or other civil action [Sect. 5 of PL 109-366],
allowed the President, through Executive Order, to define what satisfies the Geneva Convention except for
“grave breaches,” and prohibited the use of foreign or international law to do so, [Sect. 6(a) of PL 109-366],
and prohibited any court from hearing or considering a writ of habeas corpus by an alien who has been
determined by the United States to have been properly detained as an enemy combatant or was awaiting
such determination, 28 USC §2241(e)(1), and barred any court from having jurisdiction to hear any aspect of
the detention, transfer, treatment, trial or conditions of confinement of an alien who is or was detained by the
United States and has been determined by the United States to have been properly detained as an enemy
combatant or is awaiting such determination. 28 USC §2241(e)(2). In 2009 after much of the litigation below,
the Congress enacted a new version of the Military Commissions Act with a new definition that authorized the
trial of “unprivileged enemy belligerents” which includes those persons who “purposefully and materially
supported hostilities against the United States or its coalition partners.” 10 USC §§948a(7), 948b(a), 948c.
Page 512
There is a serious question as to the constitutionality and the legality under international law of the
establishment of the military tribunal by the President despite Congress’s grant of authority. Hamdan v.
Rumsfeld, 548 U.S. 557 (2006); Ex Parte Milligan, 71 U.S. 2 (1866); Duncan v. Kahanamoku, 327 U.S. 304
(1946). But see In re Al-Nashiri, 835 F.3d 110 (D.C. Cir. 2016) [upheld validity of Military Commissions Act
and declined to issue mandamus to dissolve Commission].The Supreme Court in Boumediene v. Bush, 553
U.S. 723 (2008) struck down §7 of the Military Commissions Act of 2006 regarding the amendments to 28
USC §2241(e)(1)–(2) because it deprived detainees at Guantanamo of the writ of habeas corpus and was
therefore unconstitutional under the Suspension Clause. But see Maqaleh v. Hagel, 738 F.3d 312 (D.C. Cir.
2013) [enemy combatants held by Executive at Bagram Airfield Military Base in Afghanistan could not invoke
Suspension Clause]; Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) [same].
The detention of such persons based upon prior presidential directives both within and outside the U.S. has
raised serious legal questions. In Rasul v. Bush, 542 U.S. 466 (2004), the Court determined that aliens
detained in military custody at Guantanamo not only had a right to bring a habeas corpus action challenging
their detention, they also are not barred from bringing an action pursuant to 28 USC §§1331 and 1350. In
Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004), a plurality of the Court determined that “due process demands
that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest
the factual basis for that detention before a neutral decisionmaker.” The Court also decided in Rumsfeld v.
Padilla, 542 U.S. 426 (2004),that a habeas action brought by a USC detained as an enemy combatant must
be brought against the “immediate custodian” of the detainee (and not the Secretary or the AG) and must be
brought in the judicial district where the person is detained. However, the decision recognized certain
exceptions to the “immediate custodian” doctrine including where the petitioner was confined overseas and
not within any district court’s territory, under which circumstances the person could file a habeas petition
against the AG or other appropriate official in the place where that official resides (typically Washington, DC).
Padilla, 542 U.S. at 447 n.16; Gherebi v. Bush, 374 F.3d 727, 739 (9th Cir. 2004) [following Padilla in action
regarding Guantanamo detainees brought in C.D. Cal., court transferred case to D.C. where Bush resided];
Gherebi v. Bush, 338 F.Supp.2d 91 (D.D.C. 2004) [after transfer, D.C. district held it had jurisdiction]; Abu Ali
v. Ashcroft, 350 F.Supp.2d 28, 39–57 (D.D.C. 2004) [denying motion to dismiss habeas petition brought by a
USC held in Saudi Arabia at the direction of the U.S.].It also allowed for an exception pursuant to Ex parte
Endo, 323 U.S. 283 (1944) where the physical location of a detainee is moved after a habeas petition is filed
in the district of the immediate custodian. 542 U.S. at 440-41. The Court left for another day the question as
to whether the AG may be the proper custodian in immigration cases irrespective of the immediate custodian
rule. 542 U.S. at 435-36 n.8.
Individuals who engage in hostilities or who have purposely and materially supported hostilities against the
U.S. or its allies are covered by the Authorization for the Use of Military Force even if they are civilians who
are not lawful enemy combatants if part of al-Qa’ida, Taliban, or co-belligerents. Al-Bihani v. Obama, 590 F.3d
866, 871-72 (D.C. Cir. 2010); but see Hussain v. Obama, 134 S.Ct. 1621, 1622 (2014) (Breyer, J. concurring
in denial of certiorari) [noting that the S.Ct. has never held that the AUMF and the Constitution permit the
prolonged and indefinite detention of individuals who never fought the United States in Afghanistan].
3. Procedural Rights for Guantanamo Detainees—Subsequent to Boumediene, courts began to hear

habeas petitions filed by Guantanamo detainees. The contours of who may be detained and what procedural
rights they will have as persons detained under the Authorization for Use of Military Force, have been left to
the lower federal courts to fashion. Hearsay is admissible if reliable and the standard of proof by the
government is a preponderance of the evidence and not clear-and-convincing evidence that the detainee is
part of the forces associated with al-Qa’ida, the Taliban or associated forces. See e.g., Ali v. Obama, 736
F.3d 542, 545-46 (D.C. Cir. 2013) [noting that detention is not criminal but to keep combatants off the
battlefield and that determining whether someone is associated with terrorists “almost always requires
drawing inferences from circumstantial evidence”]; Hussain v. Obama, 718 F.3d 964, 967-68 (D.C. Cir. 2013)
[no requirement that government show that combatant was involved in the command structure of terrorist
organization or that he personally picked up arms against the U.S.]; but see Hussain v. Obama, 134 S.Ct.
1621, 1622 (2014) (Breyer, J. concurring in denial of certiorari) [noting that the S.Ct. has never held that the
AUMF and the Constitution permit the prolonged and indefinite detention of individuals who never Page 513
fought the United States in Afghanistan]; Obaydullah v. Obama, 688 F.3d 784, 795-97 (D.C. Cir. 2012)
[limiting disclosure of intelligence sources]; Alsabri v. Obama, 684 F.3d 1298, 1300-09 (D.C. Cir. 2012)
[reciting numerous cases]; Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012) [there is a presumption of
regularity in government intelligence reports, but the presumption is only that the government has accurately
identified the source and taken down the information and not that the information is true]; Suleiman v.
Obama, 670 F.3d 1311 (D.C. Cir. 2012) [standards for determining whether someone is part of al-Qa’ida
apply equally to Taliban]; Almerfedi v. Obama, 654 F.3d 1 (D.C. Cir. 2011) [reversed grant of habeas and
remanded to reevaluate evidence]; Salah v. Obama, 625 F.3d 745 (D.C. Cir. 2010) [remanded case under
Awad, Bensayah, and Al-Bihani where detainee was ordered released but government claimed he continued
to work for al-Qa’ida after 1992]; Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) [in determining whether
to continue to detain someone as an enemy combatant the district courts must not consider each piece of
evidence by itself but rather its connection with all other evidence]; Bensayah v. Obama, 610 F.3d 718, 725
(D.C. Cir. 2010) [declined to define when someone is “part of al-Qa’ida” except that it does not include
someone freelancing]; Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010) [Algerian’s hearsay diary
admissible as reliable and standard is preponderance of the evidence and not clear and convincing evidence
that petitioner’s detention is lawful]; Awad v. Obama, 608 F.3d 1, 10-12 (D.C. Cir. 2010) [followed Al-Bihani
and determined that a person need not be part of the command structure of al-Qa’ida to be continually
detained under Authorization for Use of Military Force]; Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010)
[Yemeni citizen who fought with 55th Arab Brigade in Afghanistan could be detained, the government need
establish only a preponderance of the evidence to prove continued detention, and reliable hearsay is
admissible]. District court cases have attempted to sort it out. Compare Abdah v. Obama, 708 F.Supp.2d 9
(D.D.C. 2010) [granted writ where evidence that petitioner was a bodyguard for Bin Laden was based upon
testimony obtained through torture and therefore unreliable]; Al Mutairi v. U.S., 644 F.Supp.2d 78 (D.D.C.
2009) [where evidence was consistent with membership in al Wafa or al-Qa’ida but there is nothing in the
record beyond speculation, habeas granted]; El Gharani v. Bush, 593 F.Supp.2d 144 (D.D.C. 2009)
[government failed to prove detainee was an enemy combatant and court directed his release] with Naji Al
Warafi v. Obama, 704 F.Supp.2d 32, 37-38 (D.D.C. 2010) [court used functional (i.e., did detainee receive
and execute orders or directions with knowledge or intent) rather than formal approach to determine whether
detainee was a part of the Taliban, al-Qa’ida, or associated enemy forces]; Sulayman v. Obama, 729
F.Supp.2d 26 (D.D.C. 2010) [preponderance of the evidence established petitioner was part of al-Qa’ida and
could be detained]; Khan v. Obama, 646 F.Supp.2d 6 (D.D.C. 2009) [raw intelligence combined with
petitioner’s admissions and reports found in petitioner’s home was sufficient to satisfy government burden for
continued detention]; Hammamy v. Obama, 604 F.Supp.2d 240 (D.D.C. 2009) [the government has the
burden of proof but finding sufficient evidence to detain person as enemy combatant].
The government must produce exculpatory evidence even if the individual doing the filtering works for a
government agency other than the DOJ. Bensayah v. Obama, 610 F.3d 718, 724 (D.C. Cir. 2010). The
detainee may request additional evidence under a 4-part test under the Case Management Order. Al Alwi v.
Obama, 653 F.3d 11, 25-26 (D.C. Cir. 2011) [court’s denial of additional evidence requests upheld where
detainee failed to meet 4-part test]. The hearings are to be expeditiously concluded and the denial of an
uncontested request for a 30-day continuance was not an abuse of discretion. Al Alwi, 653 F.3d at 21-25
(D.C. Cir. 2011).
Enemy combatants transferred from Guantanamo to the custody of a foreign sovereign could not continue
case for collateral consequences and case was moot. Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011); In re
Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detention at Guantanamo Bay, 700 F.Supp.2d
119 (D.D.C. 2010) [habeas petitions dismissed for persons who were transferred out of Guantanamo and
released to foreign countries after filing habeas petitions and who now allege adverse treatment in new
country locations due to stigma as enemy combatants]. The Guantanamo cases have also spawned litigation
regarding information that may be disclosed about detainees. See e.g., In re Guantanamo Bay Detainee
Litigation, 787 F.Supp.2d 5 (D.D.C. 2011). Detainees are not entitled to information regarding their transfer
out of Guantanamo as such information implicates foreign policy concerns. Ameziane v. Obama, 699 F.3d
488 (D.C. Cir. 2012).
4. Cause of Action for Torture, Degrading and Inhumane Treatment, Religious Freedom and Other
Claims—The D.C. Circuit has found that there is no Alien Tort Claim, Geneva Convention, Bivens Page 514
action, or action under the Religious Freedom Restoration Act for Guantanamo detainees. Rasul v. Myers,
512 F.3d 644 (D.C. Cir. 2008) [no ATC claim because defendants acted within the scope of their employment;
claim should be under the FTCA but procedures were not met; no Geneva Convention claim because the
Westfall Act precludes it; no Bivens action because nonresident aliens outside the U.S. have no constitutional
rights; and no RFRA claim because they are nonresident aliens and therefore not persons]; Ali v. Rumsfeld,
649 F.3d 762, 774-78 (D.C. Cir. 2011) [the Westfall Act makes the FTCA the exclusive remedy against
federal officials and bars an ATCA claim for torture]. The Ninth Circuit has also rejected the right to bring a
damages action under the ATCA and state law claims for incarceration in Guantanamo because 28 USC
§2241(e)(2) bars any claims for individuals determined by the U.S. to be enemy combatants. Hamad v.
Gates, 732 F.3d 990 (9th Cir. 2013) [rejected Suspension Clause, due process, and equal protection claims];
Janko v. Gates, 741 F.3d 136, 146 (D.C. Cir. 2014) [denying remedy to former detainee who had prevailed on
habeas but had previously been determined by the Executive to be an “enemy combatant,” and observing
that “It may very well be that to deny the Appellant recovery for injuries incurred while in [U.S.] custody based
solely on the unreviewed decision of a tribunal the Supreme Court has labeled ‘closed and accusatorial’ is
rough justice”]. See also Ameziane v. Obama, 58 F.Supp.3d 99 (D.D.C. 2014) [Guantanamo detainee who
sought the return of his funds could not do so through habeas].
5. Extradition—The Military Commissions Act may preclude assertion of the Geneva Convention to bar
extradition. Noriega v. Pastrana, 564 F.3d 1290 (11th Cir. 2009) [Section 5 of the Military Commissions Act
precludes defendant from invoking the Geneva Convention as a source of rights and the Convention itself
does not bar extradition].
T. Removal Hearings—[In light of IIRIRA’s distinction between pre- and post–Apr. 1, 1997 hearings, DOJ
maintains two sets of regulations governing removal hearings, 8 CFR §§1240.1–.29, and exclusion/deportation
hearings, 8 CFR §§1240.40 to .57. Only the post–Apr. 1, 1997 procedures are addressed here.]
1. Initiation
1.a. Immigration court proceedings are held before immigration judges (“IJs”) who hold court in different
cities under the direction of the Office of the Chief Immigration Judge and Assistant Chief Immigration
Judges. There are 12 different types of hearings: (1) removal; (2) deportation; (3) bond redetermination;
(4) asylum-only; (5) credible fear review; (6) exclusion; (7) withholding-only; (8) reasonable fear review;
(9) claimed status review (from expedited removal); (10) NACARA only; (11) rescission; (12) continued
detention review. EOIR, Uniform Docketing System Manual (Dec. 2013) at Intro 1-4, AILA Doc. No.
14100644. For a discussion of IJ/BIA jurisdiction, see Chapter 9 (pp. 1709 et seq.), infra.
1.b. Removal proceedings are initiated by DHS filing a notice to appear (NTA) on Form I-862 (formerly Order
to Show Cause or OSC, Form I-221), INA §239(a), 8 USC §1229(a), with the Office of the IJ. 8 CFR
§§1003.14, 239.1(a), 1239.1(a), 1240.30, 1240.55. It may now be done by computer through the
Interactive Scheduling System. EOIR, Uniform Docketing System Manual (Dec. 2013) at Intro. 2, AILA
Doc. No. 14100644. Under ICE policy “unless impracticable because of logistical or other compelling
factors” the NTA will be submitted to EOIR within 5 workdays of it being served upon the respondent or
the respondent entering ICE custody, whichever is later. However, if the A-File, T-File or worker folder
does not accompany the transferred respondent the 5 days do not begin until the ICE agent receives the
file. ICE, Detainee Transfers, Policy 11022.1 (Jan. 4, 2012), AILA Doc. No. 12020260; Arenas-Yeses v.
Gonzales, 421 F.3d 111, 116–17 (2d Cir. 2005) [for purposes of suspension of deportation pre-IIRIRA,
proceedings were not commenced when respondent was served with OSC because it had to be filed with
the immigration court]; Dandan v. Ashcroft, 339 F.3d 567, 576 (7th Cir. 2003) [issuing of OSC does not
trigger removal hearing because the document must be filed]; Armendariz-Montoya v. Sonchik, 291 F.3d
1116, 1118–21 (9th Cir. 2002) [proceeding commenced only when OSC was filed with court]; Asad v.
Reno, 242 F.3d 702, 705 (6th Cir. 2001) [proceedings do not commence until NTA is filed with the court];
Costa v. INS, 233 F.3d 31 (1st Cir. 2000) [although person served with OSC, subsequent NTA was only
document filed with court, therefore no suspension because filing, not service, commences proceeding];
Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000) [person served with OSC but NTA filed Page 515
with court after IIRIRA is barred from §212(c)]. See Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990) for
interpretation under previous regulations. See also Pereira v. Sessions, 866 F.3d 1 (1st Cir. 2017), cert.
granted, 138 S.Ct. 735 (2018) [considering what constitutes a properly executed NTA in the context of the
stop-time rule]. For the list of immigration judges and their offices, see http://1.usa.gov/eoir-1. Venue lies
where NTA filed. 8 CFR §1003.20. NTA contains statement of nature of proceedings, legal authority under
which proceedings are conducted, factual allegations and designation of provisions that have been
allegedly violated. For a detailed discussion of how government counsel decides to charge persons in
NTAs and their direction not to overcharge in the NTA, see Government Attorney Reference Manual,
Issuing, Filing and Servicing the NTA (Nov. 2013) at 5, AILA Doc. No. 17013108 [ICE counsel manual
contains information regarding NTAs, burden of proof and evidence, sentences and convictions,
extradition proceedings, CIMTs, determining whether respondent is removable, inadmissible, deportable
or excludable and the related grounds including aggravated felonies].
(1) USCIS–ICE Memorandum of Agreement—In June 2006, USCIS and ICE entered into a MOA
regarding USCIS referrals to ICE prior to the completion of an adjudication (e.g., AOS) to allow ICE to
issue an NTA. The designated cases—called “Egregious Public Safety Cases”—involve violent
criminals, human rights violators, child pornographers and alien smugglers. But it also includes
persons who re-enter after removal without permission subsequent to conviction for a felony. The
procedure requires USCIS to refer the case to ICE via a Referral for Investigation. The MOA also
allows the parties to consider any other cases and to refer nonegregious criminal cases after
adjudication. MOA Between USCIS and ICE on the Issuance of Notices to Appear to Aliens
Encountered During an Adjudication (June 2006), AILA Doc. No. 10100172; Policy Memo, USCIS,
PM-602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear, (Nov.
7, 2011) at 3-4, AILA Doc. No. 11110830.
(2) USCIS Issuance of NTAs—USCIS has established guidelines for issuing NTAs. Policy Memo, USCIS,
PM-602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear, (Nov.
7, 2011), AILA Doc. No. 11110830. In addition to the egregious public safety cases mentioned supra
where USCIS will refer the issuance to ICE, USCIS will issue NTAs in the following circumstances: (1)
statute or regulation requires issuance (e.g., denials of I-751 and I-829, termination of refugee status,
denial of NACARA 202 and 203 and HRIFA cases); (2) cases involving fraud even where the
application was withdrawn or abandoned by the applicant if there is record information substantiating
the fraud; and (3) citizenship applicants who are also subject to deportation under section 237 unless
referred to ICE for egregious public safety reasons or citizenship applicants who were inadmissible at
time of AOS. Applicants who wish to obtain review before the IJ of their denied AOS or denied asylum
may request the issuance of an NTA in writing.
(3) CBP Issuance of NTA—Despite ICE and OPLA/OCC being the primary resource for issuing NTAs,
CBP also has the authority to issue NTAs without seeking ICE approval. Minutes, AILA ICE Liaison
(Apr. 10, 2014) at #7, AILA Doc. No. 14102844.
2. Prosecutorial Discretion
2.a. Prosecutorial Discretion Defined—The prior criteria for exercising prosecutorial discretion, Memo,
(Nov. 20, 2014), AILA Doc. No. 14112004, has been rescinded as have the underlying criteria for the
exercise of that discretion. EO 13768, Enhancing Public Safety in the Interior of the United States (Jan.
25, 2017), Sects. 5, 10, 82 FR 8799-8803 (Jan. 30, 2017) Memo, Kelly, Sec. DHS, Enforcement of the
Immigration Laws to Serve the National Interest (Feb. 20, 2017), ¶¶A-D, pp. 1-4, AILA Doc. No.
17021830. To the extent prosecutorial discretion exists, however, it should be exercised at all stages of
the enforcement process from “the earliest investigative stages to enforcing final orders of removal.”
Memo, Johnson. It is “generally preferable to exercise such discretion as early in the case or proceeding
as possible.” Id. Prosecutorial discretion includes a broad range of discretionary enforcement decisions
including but not limited to:
Issuing, serving, filing or canceling NTAs;

Deciding whom to stop, question, or arrest; Page 516
Deciding whom to detain or release;
Settling, dismissing, appealing, or joining in a motion on a case;
Granting deferred action, parole, or stay of removal instead of pursuing removal;
Memo, Johnson, supra (Nov. 20, 2014).Prior memorandum and case law. Memo, Cooper, General
Counsel HQCOU 90/16-P (July 11, 2000), reprinted in 77 No. 27 Interpreter Releases 946, 961–72 (July
17, 2000) [prosecutorial discretion includes a broad spectrum of discretionary enforcement decisions
including: whether to charge an individual; what charge to bring; to drop any charges in an ongoing case;
and to settle a case by plea bargain];
Initiation of an NTA is a matter of prosecutorial discretion, Cervantes v. Perryman, 954 F.Supp. 1257,
1265 (N.D. Ill. 1997), akin to a prosecutorial decision to initiate criminal charges. Matter of E-R-M- & L-R-
M-, 25 I&N Dec. 520 (BIA 2011) [DHS has prosecutorial discretion to initiate INA §240 proceeding against
Cubans stopped at a land border who could have been subject to expedited removal]. See also Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). The BIA has stated it has no authority to
review this discretion. Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017) [reversed IJ’s decision to
terminate removal proceedings to permit applicant to file for asylum because the decision to place
respondent in 240 proceedings instead of expedited removal was a matter of prosecutorial discretion];
Matter of Bahta, 291 F.3d 22 I&N Dec. 1381, 1391-92 (BIA 2000). And the BIA, itself, does not have
prosecutorial discretion. Young Dong Kim v. Holder, 737 F.3d 1181, 1184-85 (7th Cir. 2013) [BIA’s
appellate jurisdiction does not extend to prosecutorial discretion and exercises of such discretion by DHS
are generally immune from judicial review]. But see Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir.
2007) [rejecting argument of prosecutorial discretion and barring DHS under res judicatafrom instituting
new proceedings on charges that could have been brought in prior proceeding]. There is typically no
judicial review of prosecutorial discretion. See e.g., Robledo-Soto v. Lynch, 845 F.3d 834 (7th Cir. 2017)
[court has no authority to review ICE decision to seek deportation even where respondent vacated his
criminal conviction as ICE is proceeding against respondent as an EWI]; Veloz-Luvevano v. Lynch, 799
F.3d 1308, 1315 (10th Cir. 2015) [the IJ, BIA and federal courts lack jurisdiction over prosecutorial
discretion]. For certain procedural issues regarding filing for prosecutorial discretion, see ICE, How to
Seek Prosecutorial Discretion (Mar. 2015), AILA Doc. No. 14112100 [providing e-mail addresses and
telephone numbers at ICE and EOIR to exercise discretion favorably for persons detained].
2.b. Factors to Consider When Exercising Prosecutorial Discretion—The Priority Enforcement Program
(PEP) has been terminated and the corresponding memo regarding enforcement Memo, Johnson, Sec.
DHS, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20,
2014), AILA Doc. No. 14112004 have been rescinded and the Secure Communities Program has been
reinstated. EO 13768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), Sects.
5, 10, 82 FR 8799-8803 (Jan. 30, 2017) Memo, Kelly, Sec. DHS, Enforcement of the Immigration Laws to
Serve the National Interest (Feb. 20, 2017), ¶¶A-B, pp. 2-3, AILA Doc. No. 17021830[ending the Priority
Enforcement Program and re-establishing the Secure Communities program and rescinding the Johnson
Memo that created the Priority Enforcement Program]. Enforcement actions can be initiated against
removable persons encountered during the performance of official duties and should act consistent with
enforcement priorities identified in EO 13768. Kelly, supra at ¶C. The new priorities for the detention and
removal of persons are those who are “aliens described” in INA §§212(a)(2), (a)(3), (a)(6)(C), 235, 237(a)
(2), (a)(4) as well as removable persons who: (1) have been convicted of any criminal offense; (2) have
been charged with any criminal offense that has not been resolved; (3) have committed acts that
constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in
connection with any official matter before a government agency; (5) have abused any program related to
receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal
obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a
risk to public safety or national security. EO 13768, supra at Sect. 5; Memo, Kelly (Feb. 20, 2017), supra
at ¶A p.2. Memo, Albance, ICE Ex. Assoc. Director, Implementing the President’s Border Security and
Interior Immigration Enforcement Policies (Feb. 21, 2017), ¶¶A-C, AILA Doc. No. 17070730. To abuse
“any program related to receipt of public benefits” the person had to “knowingly defraud[ ] the government
or a public benefit system.” Q&A;, DHS, Implementation of the Executive Order on Enhancing Public
Safety in the Interior of the United States (Feb. 21, 2017), Q.18, AILA Doc. No. 17022130. Page 517 In
addition to these priorities DHS personnel “have full authority to arrest or apprehend an alien whom an
immigration officer has probable cause to believe is in violation of the immigration laws. They also have
full authority to initiate removal proceedings against any alien who is subject to removal under any
provision of the INA and to refer appropriate cases for criminal prosecution.” Memo, Kelly (Feb. 20, 2017),
supra at ¶C.
2.c. OPLA Attorney Role in Prosecutorial Discretion
(1) Current Guidance—ICE OPLA and DHS General Counsel have both issued guidance in their
exercise of prosecutorial discretion following the Jan. 25, 2017 Executive Order on Enhancing Public
Safety in the Interior of the United Statesand the Feb. 20, 2017 DHS memorandum Enforcement of the
Immigration Laws to Serve the National Interest. However, they have declined to release the guidance
to the public stating it is only for internal use. Minutes, AILA/ICE Liaison (Oct. 26, 2017) at Q.2, AILA
Doc. No. 18011132. The general position of OPLA is that if the NTA is legally sufficient, OPLA will not
administratively close a case without the consent of the agency that issued the NTA. Id. Nor will they
generally agree to administrative closure where applications are pending with other agencies. Id. at
Q.3. In addition, decisions on prosecutorial discretion will no longer be made at OPLA headquarters
but will be made by the Office of Chief Counsel. Minutes, AILA/ICE Liaison (Apr. 6, 2017) at Q.16,
AILA Doc. No. 17060602.
(a) Former Guidance—Ramlogan, Acting Principal Legal Advisor, ICE, Guidance Regarding Cases
Pending Before EOIR Impacted by Secretary Johnson’s Memorandum (Apr. 6, 2015), AILA Doc.
No. 15041063. OPLA attorneys should review cases at the earliest possible time for PD and they
should generally seek administrative closure or dismissal if cases are not priorities. Even if a case
falls within enforcement priorities, OPLA attorneys should review them to determine whether
“unique factors and circumstances are present that may warrant the exercise of prosecutorial
discretion.” Id. at 2. During the course of litigation, OPLA attorneys should review PD “again in light
of any changed facts and circumstances.” Id. PD may encompass actions beyond administrative
closure or dismissal “including waiving appeal, not filing Notices to Appear, and joining in motions.”
Id. Where no request for PD has been made, OPLA attorneys “should review cases … to determine
whether the case falls within the priorities and be prepared to inform the court of DHS’s position in
each case.” Id. However, DHS may not seek administrative closure while the respondent is in DHS
custody as the respondent must be released prior to seeking administrative closure. Id. at 3. Where
person is subject to mandatory detention, OPLA attorneys may jointly move for dismissal of
proceeding without prejudice and then the person may be released. Id. at 3 and n.4. May submit
PD requests to the local OCC. If Office of Chief Counsel in the district denies prosecutorial
discretion, counsel may seek review of the Deputy Director of Field Legal Operations. See AILA,
Escalating Requests for Prosecutorial Discretion (Apr. 9, 2015), AILA Doc. No. 14052104; Minutes,
AILA/ICE Liaison Committee Meeting (Jan. 20, 2015), Q#1.d, AILA Doc. No. 15060908. However,
Field Legal Operations requests that the applicant exhaust the request before the Deputy Chief
Counsel and Chief Counsel before appealing to their office. Administrative closure is not the only
method of exercising PD which may also include “cancellation of NTAs and dismissal of removal
proceedings.” Minutes, AILA/ICE Liaison (Oct. 19, 2015) at Q.3, AILA Doc. No. 16030760.
(b) Howard Memo—Subsequent to the Homeland Security Act of 2002 and the establishment of ICE
prosecutorial functions, the ICE Office of the Principal Legal Advisor, under William Howard, issued
a memo on prosecutorial discretion, Memo, Howard, Principal Legal Advisor (Oct. 24, 2005), AILA
Doc. No. 06050511, and parsed the issue as follows:
i) Prosecutorial Discretion Prior to or in Lieu of NTA Issuance—Where: (a) other options are
available such as administrative, crewman, or expedited removal or reinstatement; (b) clear
eligibility for an immigration benefit that can be obtained Page 518 outside of immigration court
such as a clearly approvable I-130/I-485; (c) administrative VD or VD under safeguard if
detained; (d) NSEERS violator who is otherwise in status, has no criminal record and has a
reasonable excuse for failing to register including being unaware of the registration
requirements; (e) Deferred Action for sympathetic humanitarian reasons including where the
respondent has a child with a serious medical condition or disability or where the respondent or
a close family member is undergoing treatment for a potentially life threatening disease.
ii) Prosecutorial Discretion after the NTA has Issued but Before the NTA Has Been Filed—Where:
(a) same factors as above; (b) reasonable and rational decision not to prosecute where relief
has been sought such as filing an application for a U or T visa.
iii) Prosecutorial Discretion after NTA Issuance and Filing—ICE attorney may seek to dismiss: (a)
because NTA improvidently issued; (b) because there is a change in circumstances such that
continuation of the case is no longer in the government’s interest. In these cases because the
ICE attorney does not have the right to issue or terminate the NTA, she must move to dismiss
the proceedings without prejudice; (c) because relief is otherwise available where “relief in the
form of adjustment of status appears clearly approvable based on an approvable I-130 or I-140.
…” May also be appropriate for special rule cancellation under NACARA; (d) because of
appealing humanitarian factors such as a citizen child with a serious medical condition or
disability. ICE attorneys need to investigate alternative dispositions; (e) because federal, state or
local law enforcement entities desire to have the respondent remain in the U.S. These may
alternatively be addressed by administrative closure of the case or the issuance of a stay of
deportation. The ICE attorney may also: (1) remand a case to allow the respondent to pursue
naturalization if she demonstrates prima facie eligibility or (2) resolve a case without lengthy
proceedings such as not opposing relief, waiving appeal, making agreements that narrow
issues, or stipulating to admissibility of evidence.
iv) Post-Hearing Actions—(a) decision to appeal should be guided by the “interests of judicial
economy and fairness;” (b) remanding to IJ or withdrawing an appeal where the respondent’s
brief is persuasive; (c) joining in untimely motions to reopen for AOS or cancellation where
respondent has “substantial equities, no serious criminal or immigration violations, and he is
legally eligible to be granted that relief” but for the 90-day limitation; (d) remanding to BIA where
“there are potential litigation pitfalls or unusually sympathetic fact circumstances and where the
BIA has the authority to fashion a remedy; “ (e) remanding in absentia orders particularly where
respondent simply appeared late for court.
v) Final Orders; Stays and Motions to Reopen/Reconsider—(a) where ineffective assistance of

counsel deprived respondent of an opportunity to pursue relief and there was compliance with
Matter of Lozada“it would be appropriate to join in or not oppose” motions to reconsider; (b)
where law enforcement wants a respondent to testify, ICE counsel may recommend that a stay
of removal be granted.
2.d. IJ’s Role in Prosecutorial Discretion—IJs are directed to “ask ICE attorneys appearing before them at
master calendar hearings, on the record, whether the case remains a removal priority for ICE and whether
ICE is seeking dismissal or administrative closure.” The court should also ask the respondent or his or her
representative for the respondent’s position on dismissal or closure. Judges are encouraged to use
“continuances, termination and administrative closure in appropriate cases” following OPPM 13-01 and
Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). Memo, O’Leary, CIJ, OPPM 15-01, Hearing Procedures
for Cases Covered by new DHS Priorities and Initiatives (Apr. 6, 2015), AILA Doc. No. 15040766. But see
in this section “Administrative Closure,” ¶ 7.w (p.648), infra.
2.e. Additional Criteria to Consider Under Prior Superseded Memo—Memo, Morton, Director ICE
“Exercising Prosecutorial Discretion, Policy No. 100075.1, FEA No. 306-112-0026 (June 17, 2011), at 4-5,
AILA Doc. No. 11061734 other helpful factors are listed: (a) Person’s length of Page 519 presence in the
U.S., particularly lawful presence; Manner of arrival and entry, particularly entry as a young child; (b)
Person’s pursuit of education in the U.S., with particular consideration given to those who have graduated
from a U.S. high school or have successfully pursued or are pursuing a college or advanced degree at a
legitimate institution of higher education in the U.S.; (c) Service in the U.S. military, reserves, or national
guard by the person or family member with particular consideration for service during combat; (d) Criminal
history, including arrests, prior convictions or outstanding arrest warrants; (e) Immigration history including
prior removal, outstanding order of removal, prior denial of status or evidence of fraud; (f) National
security or public safety threat; (g) Community contributions and ties, including family; (h) Home country
conditions and ties; (i) Age, particularly minors and the elderly; (j) Immediate Family members who are
LPRs or USCs; (k) Primary caretaker of person with a mental or physical disability, minor, or seriously ill;
(l) Pregnant spouse or nursing; (m) Person or spouse suffering from severe mental or physical illness; (n)
Removal unlikely due to nationality; (o) Likelihood of being granted temporary or permanent status or
other relief from removal; (p) Cooperating with LEAs including DOJ, DOL and NLRB; (q) Veterans and
members of armed forces; (r) Long term LPRs; (s) Presence in U.S. since childhood; (t) Victims of
domestic violence, trafficking, or other serious crimes; (u) Suffering from a serious mental or physical
disability.
2.f. Employment Authorization—A person whose case is administratively closed in the exercise of
prosecutorial discretion may under certain circumstances obtain employment authorization. For example,
where an asylum, cancellation or AOS application is pending, the applicant obtained employment
authorization, and then the proceedings are administratively closed in the exercise of prosecutorial
discretion, EAD eligibility will continue because the applications are deemed pending for purposes of
employment eligibility under 8 CFR §§274a.12(c)(8), (9) or (10). Q&As;, NBC-AILA Teleconference, Q.5
(May 11, 2012), AILA Doc. No. 12072351.
2.g. Procedural Issues Regarding Cases in Proceedings or Where NTA Not Yet Filed with EOIR
(1) Aug. 18, 2011, Memo—There is no affirmative application process for an exercise for discretion but
“consistent with longstanding practice, individuals in removal proceedings and their representatives
remain free to submit information relevant to their case to the appropriate ICE field offices or attorneys.
Any attorney or representative who purports to be able to secure an individual relief through an
affirmative application … is engaged in a scam and should be reported.” FAQs on Enforcement
Priorities, ICE (Aug. 18, 2011), AILA Doc. No. 11083064. No beneficiary of the policy will automatically
receive work authorization, although he or she may seek employment authorization if he is the
beneficiary of prosecutorial discretion. Id. Individuals who self-surrender to ICE in the belief they will
receive a benefit are likely to be put in removal proceedings. Id.
2.h. Family Relationships Extended to Same-Sex Couples—For purposes of exercising prosecutorial

discretion due to family relationships, ICE has clarified that such family relationships extend to same-sex
relationships in which the individuals: (i) are each other’s sole domestic partner and intend to remain so
indefinitely; (ii) are not in a marital or other domestic relationship with anyone else; and (iii) typically
maintain a common residence and share financial obligations and assets. Memo, Mead, Exec. Assoc.
Director et al., ICE, Applicability of Prosecutorial Discretion Memoranda to Certain Family Relationships
(Oct. 5, 2012), AILA Doc. No. 12101040.
2.i. Prior Guidance—Prior to the Johnson and Morton memos, INS and then ICE issued guidelines
concerning prosecutorial discretion. Memo, Meissner, Comm., HQOPP 50/4 (Nov. 17, 2000), AILA Doc.
No. 00112702. The Meissner memo was readopted in Memo, Myers, Asst. Sec., ICE (Nov. 7. 2007), AILA
Doc. No. 07111263 [noting that the end of the “catch and release” policy does not mean that officers
should not exercise discretion].
2.j. Prohibited Considerations and Procedures—The agency may not consider: (1) an individual’s race,
religion, sex, national origin or political association, activities or beliefs (although they may be relevant in
assessing asylum or terrorism); (2) the officer’s personal feelings regarding the individual; or (3) the
possible effect of the decision on the officer’s own professional or personal circumstances. Also, the
length of time a case is pending without a prior request for PD “does not necessarily count as a negative
factor” [and] “the mere fact that a case already has been litigated to some extent is not a reason to deny a
PD request.” Minutes, AILA/ICE Liaison (Oct. 19, 2015) at Q.2, AILA Doc. No. 16030760. Page 520 “If
prosecutorial discretion is exercised, the notice/letter granting the discretion should provide that it “does
not confer any immigration status, ability to travel to the United States (unless the alien applies for and
receives advance parole), immunity from future removal proceedings, or any enforceable right or benefit.”
Memo, Myers (Nov. 7, 2007), supra at 12. In cases involving TPS or DED, the agency “should agree to
administratively close proceedings” where individuals are prima facie eligible for relief. In the case of TPS
this is generally accomplished by agreeing to a continuance to allow the person to file for TPS and upon
proof of filing, agreeing to administratively close proceeding. As DED does not require an application, the
Service may agree to administrative closure if the person is prima facie eligible. However, the Service
should agree to administrative closure only after pleadings have been taken and the issue of removability
has been established. Memo, Carpenter, Deputy Gen. Co., HQCOU 120/12.2-P (Feb. 7, 2002), reported
in 79 No. 15 Interpreter Releases 524, 530–38 (Apr. 8, 2002). Any agreement may not be conditioned
upon the applicant giving up any other rights including the right to apply for asylum or withholding of
removal. Id.
2.k. Prosecutorial Discretion Regarding Victims and Witnesses of Crimes and Plaintiffs in Civil Rights Suits
—Memo, Morton, Director, ICE, Prosecutorial Discretion, Certain Victims, Witnesses and Plaintiffs, Policy
No. 10076.1, FEA No. 306-112-002b (June 17, 2011), AILA Doc. No. 11061731. This memo is currently in
effect. It is “against ICE policy to initiate removal proceedings against an individual known to be the
immediate victim or witness to a crime.” It is also “against ICE policy to remove individuals in the midst of
a legitimate effort to protect their civil rights or civil liberties.” The memo covers: (i) victims of domestic
violence, human trafficking, or other serious crimes; (ii) witnesses involved in pending criminal
investigations or prosecutions; (iii)) plaintiffs in nonfrivolous lawsuits regarding civil rights or liberties
violations; and (iv) individuals engaging in a protected activity related to civil or other rights (for example,
union organizing, or complaining to authorities about employment discrimination or housing conditions)
who may be in a nonfrivolous dispute with an employer, landlord, or contractor. Prosecutorial discretion
includes: (i) release from detention; (ii) deferral or stay of removal; (iii) withdrawal of a detainer; (iv)
decision regarding issuance of a NTA; (v) termination of proceedings; or (vi) joining a motion to terminate.
Adverse factors cautioning use of prosecutorial discretion are: (i) national security concerns; (ii) serious
criminal history; (iii) involvement in a serious crime; (iv) threat to public safety; (v) human rights violator; or
(vi) involvement in significant immigration fraud. In the absence of adverse factors “exercising favorable
discretion … generally will be appropriate.”
2.l. Prosecutorial Discretion Regarding Persons with U.S. Military Service—In exercising prosecutorial
discretion for those who served in the U.S. military, the initial inquiry is whether the person is eligible for
U.S. citizenship by virtue of INA §§328 and 329. If not eligible, ICE counsel needs to look at: (1) the
person’s overall criminal history including aggravated felonies, drug trafficking, violent crimes and crimes
against children; (2) evidence of rehabilitation; (3) family and financial ties to the U.S.; (4) employment
history, health and community service; and (5) specifics of military service including duty status,
assignment to a war zone, number of years of service, and decorations awarded. Neither active service,
honorable discharge, nor adverse publicity that may arise due to removal, are a basis to decline to issue
an NTA. Memo, Forman, Acting Dir., Office of Investigations, ICE (June 21, 2004), AILA Doc. No.
06051664.
2.m. Prosecutorial Discretion re Persons with Pending I-130 or Other Petitions/Applications
(1) In General—Memo, Morton, Assistant Secretary ICE, Guidance Regarding the Handling of Removal
Proceedings of Aliens with Pending or Approved Applications or Petitions, Policy No. 16021.1, FEA
No. 054-14 (Aug. 20, 2010), AILA Doc. No. 10082561. Where the respondent has an I-130 or other
petition/application pending with an immediate priority date, ICE will take the following actions in
nondetained cases: (1) ICE counsel will affirmatively request that USCIS expedite a decision on the
petition/application within 45 days: and (2) ICE counsel will move to dismiss the proceedings without
prejudice where respondent: (i) is statutorily eligible for adjustment; (ii) has presented a completed
AOS application; (iii) is eligible for AOS as a matter of law and in the exercise of discretion; and (iv) the
application or petition filed with USCIS has a current priority date. Page 521
(2) Detained Cases—Where I-130 (or other) petition/application is pending and there is a visa
immediately available if approved, ICE counsel should: (i) request that USCIS within 30 days expedite
a decision on the I-130 (or other petition/application) and transfer the “A” file to USCIS ; (2) consult
with the Special Agent in Charge (SAC) and the Field Office Director (FOD) for ICE to determine if
there are any investigations or adverse factors prohibiting release (e.g., criminal convictions, evidence
of fraud or other criminal misconduct, or national security or public safety considerations); (3) if no
investigation or adverse factors “the OCC (Office of Chief Counsel) should promptly move to dismiss
proceedings without prejudice before EOIR … and notify the FOD;” (4) before moving to dismiss
counsel should be satisfied of the four criteria stated supra and (5) “Once the FOD is notified, the FOD
must release the alien pursuant to the dismissal of proceedings.”
(3) Each Local Office of OCC is charged with creating its own SOPs consistent with the memo.
(4) USCIS Coordination—USCIS has issued its own memo stating it will endeavor to complete action on
I-130s for detained persons within 30 days and for nondetained within 45 days. Policy Memo, USCIS,
PM-602-0029, Guidance for Coordinating the Adjudication of Applications and Petitions Involving
Individuals in Removal Proceedings, (Feb. 4, 2011), AILA Doc. No. 11050264; AFM 10.3.
2.n. Prosecutorial Discretion Regarding Parents Where Children Are in U.S. (“Parental Interests Directive”)
—ICE’s prior policy of prosecutorial discretion to consider the interests of parents/legal guardians of
children has been withdrawn. Memo, Sandweg, Acting Director, ICE, 11064.1 Facilitating Parental
Interests in the Course of Civil Immigration Enforcement Activities (Aug. 23, 2013), AILA Doc. No.
13082642. It has been withdrawn by ICE Policy 11064.2, Detention and Removal of Alien Parents or
Legal Guardians (Aug. 29, 2017), AILA Doc. No. 18042302[the new memo takes a far more limited view
toward assisting parents of minor children who may be in parental termination proceedings or in separate
custody in another facility. It contemplates the separation of children from their parents but allows for the
possibility that parents, under limited circumstances, may visit their children and participate in proceedings
affecting the child].
2.o. Guidelines Regarding USCIS and Initiating Referrals for NTAs—On July 11, 2006, USCIS issued
guidelines concerning NTAs issued in various cases based upon an MOA between ICE and USCIS.
Memo, Aytes, Assoc. Dir. Domestic Operations, 70/1-P (July 11, 2006), AILA Doc. No. 06090871. The
policy memorandum listed 5 categories of cases in order of seriousness/urgency in regard to issuance of
NTAs: (1) egregious public safety cases (persons charged or convicted as aggravated felons under INA
§§101(a)(43)(A), (C), (E), (F), (H), (I), and (N), human rights violators, suspected street gang members,
Interpol hits, reentry subsequent to a conviction for a felony, additional cases based upon local criteria);
(2) other criminal cases; (3) cases where the NTA is prescribed by regulation; (4) cases denied by USCIS
based on fraud; and (5) all other cases.
2.p. Joint Motion to Dismiss for AOS—In a prior memo, ICE set forth the following guidelines for initiating or
agreeing to join in a motion to dismiss without prejudice where respondent seeks AOS under INA §209
(asylum or refugee), INA §249 (registry), INA §245 (family- or employment-based): or Cuban Adjustment:
(1) EOIR has jurisdiction; (2) respondent is prima facie eligible; (3) the application is clearly approvable to
warrant exercising discretion; (4) there is no asylum application pending; and (5) the removal proceeding
does not involve threats to national security, human rights violators, criminal convictions or conduct
necessitating a INA §212(h) waiver or immigration fraud necessitating a INA §212(i) waiver, or detained
respondents unless there are unique or special circumstances including but not limited to the extent/or
seriousness of criminal conduct, recency and/or significance of immigration fraud, or national security
interests. Memo, Howard, Principal Legal Advisor, ICE (Oct. 6, 2005), AILA Doc. No. 05101360. See also
Matter of Rajah, 25 I&N Dec. 127, 135 n.10 (BIA 2009) [“We encourage the DHS to consider agreeing to
administrative closure in appropriate circumstances, such as where there is a pending prima facie
approvable visa petition.”]; Matter of Hashmi, 24 I&N Dec. 785, 791 n.4 (BIA 2009) [“In appropriate
circumstances, such as where there is a pending prima facie approvable visa petition, we urge the DHS to
consider agreeing to administrative closure of the case”]. Page 522
2.q. Docketing by EOIR—EOIR has designated as priorities for docketing: (i) unaccompanied minors; (ii)
adults with children released on alternatives to detention; (iii) adults with children who are detained; (iv)
individuals released under Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), rev’d Jennings v.
Rodriguez, 138 S.Ct. 830 (2018) who are entitled to bond hearings every six months. Memo, Maggard,
Chief IJ (Acting), Revised Docketing Practices Relating to Certain EOIR Priority Cases (Feb. 3, 2016),
AILA Doc. No. 16020406; Memo, O’Leary, Chief IJ, EOIR, Docketing Practices Relating to
Unaccompanied Children Cases and Adults with Children Released on Alternatives to Detention in Light
of New Priorities (Mar. 24, 2015), AILA Doc. No. 15032702.
2.r. Decision to Seek Remand from Federal Court to BIA—The government has substantial discretion to
seek a remand from the circuit court to the BIA. See “Remands” in Chapter 10, Section VI.L (p.1973),
infra.
2.s. Judicial Review—The decision to place someone in removal proceedings and not exercise prosecutorial
discretion may not be subject to judicial review due to INA §242(g). Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482-83 (1999); Morales de Soto v. Lynch, 824 F.3d 822, 825-29 (9th
Cir. 2016) [court declined to remand ICE decision to reinstate removal despite new discretionary
guidelines that might have affected decision as such issues are purely discretionary]; Ali v. Mukasey, 524
F.3d 145, 150 (2d Cir. 2008) [no jurisdiction under INA §242(g) to review petitioners’ claim that DHS
should have declined to initiate proceedings because they came to DHS’s attention as a result of an
asylum application submitted without their knowledge]. The BIA’s position is that the “only area in which
judicial review of a prosecutorial decision is permitted is where an allegation is made that a charging
decision was based on constitutionally prohibited reasons, such as race or religion.” Matter of E-R-M- & L-
R-M-, 25 I&N Dec. 520, 523 n.1 (BIA 2011). See also Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA
2017) [reversed IJ’s decision to terminate removal proceedings to permit applicant to file for asylum
because the decision to place respondent in 240 proceedings instead of expedited removal was a matter
of prosecutorial discretion]. Motions to reopen old removal orders on grounds of prosecutorial discretion
are either not reviewable (because the party seeks sua sponte review from the BIA) or it is not an abuse
of discretion because the Board is not empowered to exercise prosecutorial discretion over ICE
enforcement. Patel v. Holder, 747 F.3d 493 (7th Cir. 2014).
3. Issuance of NTAs
DHS has set forth criteria for the issuance of NTAs when a benefit application is denied. Memo, Meissner,
Comm., HQOPP 50/4 (Nov. 17, 2000), AILA Doc. No. 00112702]. Should focus on cases: (1) where the
applicant’s violation of the INA or other federal, state or local law constitutes a threat to public safety or
national security; (2) where instances of a fraud scheme were detected; and (3) where the denial or
withdrawal of certain TPS applications constitutes a ground of deportability/inadmissibility thereby triggering 8
CFR §§244.10(c)(1), 244.14(b)(3), 1244.10(c)(1), 1244.14(b)(3). Memo, Yates, Assoc. Dir. Of Operations
(Sept. 12, 2003), AILA Doc. No. 03100240.
DHS should not issue an NTA if:
government is exercising its prosecutorial discretion not to proceed, see above, ¶ 2 (p.515).
government has evidence indicating person is USC. ICE has substantially altered its practice in
regard to a person who claims or ICE suspects is a USC. If evidence indicates a person is a USC
or if the evidence outweighs contrary evidence, the individual should not be arrested or taken into
custody; nor should an NTA be issued. But the USCIS may take a statement from the individual
under oath that it can later use for prosecution under 18 USC §911, if it was a false claim to USC.
Memo, Morton, Ass’t Sec., ICE, Superseding Guidance on Reporting and Investigating Claims to
United States Citizenship, Policy No. 16001.1, FEA No. 045-01 (Nov. 19, 2009), reprinted in 15
Bender’s Immigr. Bull. 438, 464–66 (Mar. 15, 2010).
alien is in deferred action program. Considerations under program include: (a) the likelihood of
ultimately removing the alien; (b) the presence of sympathetic factors (e.g., age, hardship, physical
condition); (c) adverse publicity if an effort is made to remove Page 523 alien; (d) the person’s
continued presence is desired by law enforcement for an ongoing investigation or review; and (e)
whether individual is a member of a class given high enforcement priority.
immigrant petition is pending, provided that approval would permit AOS or VD. Wu v. Holder, 571
F.3d 467 (5th Cir. 2009) [IJ erred in not granting third continuance awaiting I-130 petition for IR];
Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008) [IJ and BIA erred in not granting continuance to await
I-130 approval where applicant could AOS before USCIS]; Benslimane v. Gonzales, 430 F.3d 828
(7th Cir. 2005) [IJ made legal error in denying continuance where respondent had filed I-130 and I-
485 as part of marriage based AOS but had not filed AOS with IJ]; Bull v. INS, 790 F.2d 869 (11th
Cir. 1986); Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009); Freire v. Holder, 647 F.3d 67 (2d
Cir. 2011) [in context of AOS before USCIS where arriving alien sought continuance of removal
proceeding].
conviction is vacated or is about to be vacated. See e.g., Matter of Ozkok, 19 I&N Dec. 546 (BIA
1988) [relating to expungement of conviction which in light of Matter of Roldan reaffirmed in Matter
of Salazar may no longer be a basis to prevent removal].
alien is a member or former member of the Armed Forces unless prior approval for NTA obtained
from the Special Agent in Charge in the district. Memo, Forman, Acting Dir., Office of Investigations,
ICE, Issuances of Notices to Appear, Administrative Orders of Removal, or Reinstatement of a
Final Removal Order on Aliens with United States Military Service (June 21, 2004), AILA Doc. No.
06051664. Also alien members of the Armed Forces traveling under official orders or permit are not
subject to removal. INA §284, 8 CFR §235.1(c).
person granted asylum unless asylum first revoked. 8 CFR §§208.22, 1208.22. See
“Revocation/Termination of Asylum/Withholding,”in Chapter 4, Section XIII.B (p.983), infra.
4. Challenges to NTA
4.a. After commencement of proceedings a party may move the court for dismissal and only the court, upon
motion, may then terminate. Prior to commencement, DHS has exclusive authority and the IJ has no
jurisdiction except for bond. Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998); 8 CFR §§239.2(c), 1239.2(c).
DOJ Immigration Judge Benchbook, at p. 3–2, ¶5. Reasons for termination include that the NTA was
“improvidently issued,” 8 CFR §239.2(a)(6) which may encompass all the grounds in former O.I. §239. An
NTA which is not sufficient on its face may be dismissed even where an order of deportation has been
entered. Macleod v. INS, 327 F.2d 453 (9th Cir. 1964).
4.b. Application for NTA [I-862] not based on prima facie case of deportability, O.I. §239, or is not
accompanied by substantial supporting evidence. U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923).
4.c. Issuance of NTA Constitutes Selective Prosecution—Adame-Hernandez v. INS, 769 F.2d 1387 (9th Cir.
1985); Lennon v. U.S., 387 F.Supp. 561 (S.D.N.Y. 1975). See generally Wayte v. U.S., 470 U.S. 598
(1985); U.S. v. O’Brien, 391 U.S. 367 (1968); U.S. v. Al Jibori, 90 F.3d 22 (2d Cir. 1996); American Baptist
Churches v. Meese, 712 F.Supp. 756, 762–64 (N.D. Cal. 1989). But see Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471 (1999)[reversing 9th Cir. and finding that “an alien unlawfully in this
country has no constitutional right to assert selective enforcement as a defense against his deportation”
except in a “rare case in which the alleged basis of discrimination is so outrageous”]; Kandamar v.
Gonzales, 464 F.3d 65, 70–74 (1st Cir. 2006) [absent outrageous discrimination, NSEERS selective
prosecution claim is precluded by American-Arab]; Latu v. Ashcroft, 375 F.3d 1012, 1019 (10th Cir. 2004)
[action challenging decision to commence removal proceedings in one venue versus another is barred by
INA §242(g)].
4.d. Where NTA Issuance Accompanied by Duress or Lack of Due Process—Matter of Rios-Carrillo, 10 I&N
Dec. 291 (BIA 1963). Page 524
4.e. Where Procedural Due Process Violated Because of Lack of Notice of Correct Charges—Rodriguez v.
U.S. Att’y Gen., 844 F.3d 392, 398-400 (3d Cir. 2016) [where respondent’s conviction was vacated and he
repleaded to what might arguably be a conviction, the court reversed the deportation order because ICE
violated his due process rights when it failed to file new charges giving him notice]; Browne v. Zurbrick, 45
F.2d 931 (6th Cir. 1930) [stating charge in alternative as “committing an act or was convicted” is not
appropriate notice]. But see De Zavala v. Ashcroft, 385 F.3d 879 (5th Cir. 2004) [due process not violated
where respondent was incorrectly charged as inadmissible at entry as a nonimmigrant when she was
inadmissible as an immigrant because there was no prejudice]; Consola v. Karnuth, 108 F.2d 178 (2d Cir.
1939). But see Dormescar v. U.S. Att’y Gen., 690 F.3d 1258, 1269 (11th Cir. 2012) [the regulations permit
DHS to amend the NTA to reflect that the removal proceedings are based on deportability rather than
inadmissibility]; Lazaro v. Mukasey, 527 F.3d 977, 979–80 (9th Cir. 2008) [NTA that did not include
aggravated felony subsections and thus did not fully notify petitioner was nevertheless sufficient]; Choeum
v. INS, 129 F.3d 29, 40 (1st Cir. 1997).
4.f. Where There Is Res Judicata or Collateral Estoppel—U.S. v. Utah Constr. & Mining Co., 384 U.S. 394,
422 (1966); Astoria Fed. Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991); Amrollah v.
Napolitano, 710 F.3d 568, 571-72 (5th Cir. 2013) [government’s thorough cross-examined of respondent
during asylum claim on material support barred asserting material support during AOS]; Oyeniran v.
Holder, 672 F.3d 800, 806-07 (9th Cir. 2012) [in CAT claim collateral estoppel binds the BIA to its prior
determinations of the facts and legal consequences regarding government sponsored violence against
Nigerian family because of father’s activities supporting Christianity over Islam]; Al Mutarreb v. Holder, 561
F.3d 1023, 1031 (9th Cir. 2009) [where DHS failed to provide any evidence on whether petitioner in in
absentia proceeding was deportable, DHS was barred by res judicatafrom initiating a second proceeding
on the basis of the charge it brought or “could have brought in the first case”]; Bravo-Pedroza v. Gonzales,
475 F.3d 1358 (9th Cir. 2007) [rejecting prosecutorial discretion claim and barring DHS from instituting
new proceeding on charges that could have been brought in prior proceeding]; Guevara v. Gonzales, 450
F.3d 173 (5th Cir. 2006) [DHS barred by res judicata from collaterally attacking BIA’s jurisdiction to reopen
through a motion to reconsider]; Duvall v. U.S. Att’y Gen., 436 F.3d 382 (3d Cir. 2006) [although collateral
estoppel applies in immigration proceedings barring relitigation of alienage, it does not apply where a
clearly deportable person continues to commit criminal acts after initial proceedings are terminated];
Medina v. INS, 993 F.2d 499 (5th Cir. 1993) [admission in exclusion proceeding bars deportation
proceeding for same issues based on exclusion at time of entry stating that “[f]ew legal doctrines are more
intrinsic or necessary to our system than res judicata”]; Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir.
1987) [when circuit court previously ruled that INS could not reopen proceedings to admit birth certificate
which was not newly discovered, INS was barred by res judicata from bringing new OSC]; Matter of
Cordero, A29-989-441 (BIA Aug. 10, 1995) (unpublished), reported in 72 No. 38 Interpreter Releases
1330–31 (Oct. 2, 1995); Khan v. Johnson, 160 F.Supp.3d 1199 (C.D. Cal. 2016) [despite no direct
findings, the IJ had to consider material support in granting asylum and the government is therefore
collaterally estopped from utilizing the material support bar in an AOS proceeding]; Islam v. U.S. Dept. of
Homeland Sec., 136 F.Supp.3d 1088 (N.D. Cal. 2015) [collateral estoppel applied to bar USCIS from
denying AOS on grounds that applicant was involved in terrorist activity where issue was raised before IJ
and decided in applicant’s favor when granting him asylum]; Murray v. Ashcroft, 321 F.Supp.2d 385 (D.
Conn. 2004) [where government’s charge that respondent was an aggravated felon was not sustained on
appeal, court reversed a subsequent removal order using the same convictions to establish deportability
under a different ground]. See generally Johnson v. Ashcroft, 378 F.3d 164, 172 n.10 (2d Cir. 2004)
[discussion regarding efforts to bring removal proceedings based upon different criminal charges known to
the government when the charge in removal proceeding was vacated].
Res judicata cannot be raised in federal court until the IJ/BIA makes a decision because INA §242(g) bars
habeas review based upon initiation of proceedings. Somir v. U.S., 354 F.Supp.2d 215, 220 (E.D.N.Y.
2005). Page 525
Cases Holding No Res Judicata / Collateral Estoppel Bar
Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017) [res judicata does not bar a second proceeding,
after the original proceeding was terminated in respondent’s favor, where both proceedings were based
upon the same conviction and the same charge of removability, INA §237(a)(2)(A)(iii) (an aggravated
felony) but on different aggravated felony categories (first was COV the second burglary)]; Miranda v.
Sessions, 853 F.3d 69 (1st Cir. 2017) [res judicata did not apply to a claim of derivative citizenship,
despite differing opinions by IJs, because the court first had to determine whether it had jurisdiction to
hear the case and in so doing had to address the citizenship issue]; Estrada-Rodriguez v. Lynch, 825 F.3d
397, 400-03 (8th Cir. 2016) [collateral estoppel inapplicable where case is remanded from BIA and IJ
reverses his former determination and finds crime was a CIMT]; U.S. v. Kantengwa, 781 F.3d 545, 553-57
(1st Cir. 2015) [Rwandan found guilty of criminal perjury notwithstanding that she was granted asylum
after IJ found that false statements did not go to heart of her claim; collateral estoppel/issue preclusion did
not apply because her statements were materially false even if insufficient to deny asylum]; Sandoval-
Gomez v. Holder, 768 F.3d 904, 910 (9th Cir. 2014) [where BIA vacated its prior order at request of ICE
and remanded to IJ to conduct “any further proceedings the IJ deems appropriate” the IJ was free to
consider other charges brought by ICE and such charges were not barred by res judicata]; Cardona v.
Holder, 754 F.3d 528 (8th Cir. 2014) [where respondent pleaded no contest to manslaughter and
tampering with evidence, DHS after failing to deport on manslaughter could bring a separate removal
proceeding on tampering as they are distinct crimes]; Dormescar v. U.S. Att’y Gen., 690 F.3d 1258 (11th
Cir. 2012) [no res judicata where counterfeiting conviction was known to the government but was not
brought as a deportability aggravated felony charge until after DHS lost the case on other charges of
inadmissibility]; Shepherd v. Holder, 678 F.3d 1171, 1184-85 (10th Cir. 2012) [administrative collateral
estoppel is not applicable to circuit court’s review of citizenship claim]; Maldonado v. U.S. Att’y Gen., 664
F.3d 1369 (11th Cir. 2011) [no res judicata where an intervening legal change in the law has provided a
wholly new legal basis for removal that could not have been raised previously]; Johnson v. Whitehead,
647 F.3d 120, 128-31 (4th Cir. 2011) [where IJ determined in previous hearing that person was a citizen
and could not be removed, EOIR not barred from new hearing]; Duhaney v. U.S. Att’y Gen., 621 F.3d 340,
345-46 (3d Cir. 2010) [not res judicata where DHS amended charges to include convictions that were not
originally charged but were disclosed during hearing on 212(c) relief]; Ginters v. Frazier, 614 F.3d 822,
825-29 (8th Cir. 2010) [where district court judge previously denied review of I-130 petition because of
lack of jurisdiction, no collateral estoppel bar where there was a change of law broadly interpreting federal
jurisdiction]; Poblete Mendoza v. Holder, 606 F.3d 1137, 1140-41 (9th Cir. 2010) [Res judicata does not
prevent DHS from using a previous conviction with second removal proceeding where charge is based
upon combination with new conviction–2 CIMTs–that did not exist during first removal proceeding]; Ljutica
v. Holder, 588 F.3d 119, 126–28 (2d Cir. 2009) [no res judicata bar to denial of naturalization for lack of
GMC because of an agg. felony conviction for attempted bank fraud where the applicant was never
charged in deportation as an aggravated felon and where he previously obtained INA §212(c) relief];
Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1279–80 (11th Cir. 2009) [res judicata did not bar DHS from
charging person as aggravated felon after he obtained cancellation for the same underlying state crime;
petitioner was originally sentenced to 364 days but violated community control for that crime and was
sentenced to 6 years thus becoming an aggravated felon; court reasoned that the underlying conviction
was not an aggravated felony during the first IJ case]; Alvear-Velez v. Mukasey, 540 F.3d 672 (7th Cir.
2008) [person originally charged in 1993 under CIMT within 5 years of entry due to conviction for sexual
assault could have new proceeding brought after 1996 as an aggravated felon when Congress made
provision retroactive]; Cospito v. U.S. Att’y Gen., 539 F.3d 166, 171–72 (3d Cir. 2008) [collateral estoppel
does not apply to administrative AOS because it is not an adjudicative/judicial proceeding and therefore
subsequent determination by IJ that person committed fraud in the AOS is not precluded, nor is the denial
of a waiver which was not addressed in the AOS]; Ali v. Mukasey, 529 F.3d 478, 489–90 (2d Cir. 2008) [no
collateral estoppel based upon original grant in termination of deferral of removal because the structure of
the regulations permits de novo review by the IJ under 8 CFR §1208.17(d)(3)]; Matter of C-C-I-, 26 I&N
Dec. 375, 385-86 (BIA 2014) [same under 1208.17(d)(3)]; Channer v. DHS, 527 F.3d 275, 280–82 (2d Cir.
2008) [both NTAs did not operate from the same nucleus of operative facts where 1991 Page 526 NTA
was based upon a 1990 federal charge and 1999 NTA was based upon a 1992 state charge]; Ochieng v.
Mukasey, 520 F.3d 1110, 1114 (10th Cir. 2008) [res judicata did not bar submission of documents proving
conviction after BIA remand because there was no previous final order]; Bilali v. Gonzales, 502 F.3d 470
(6th Cir. 2007) [collateral estoppel did not apply to IJ determination that respondent had a valid marriage
in AOS proceeding to bar litigation whether USCIS improperly denied removal of CR status]; Valencia-
Alvarez v. Gonzales, 469 F.3d 1319, 1323–24 (9th Cir. 2006) [where BIA decision was not final and case
remanded back to IJ, no res judicataas to ICE’s amendment of the NTA charges]; Andrade v. Gonzales,
459 F.3d 538, 545 (5th Cir. 2006) [government was free to bring removal proceedings based upon criminal
convictions that were disclosed at AOS hearing before residency was approved]; Hamdan v. Gonzales,
425 F.3d 1051, 1058–60 & n.15 (7th Cir. 2005) [res judicata does not apply where party gets remand
before BIA to pursue a form of relief without a final judgment]; Santana-Albarran v. Ashcroft, 393 F.3d 699,
703–05 (6th Cir. 2005)[AG not collaterally estopped from arguing respondent did not prove he entered the
U.S. in 1985 for purposes of cancellation despite IJ’s finding on removal charge that he entered EWI in
1985 because that date was not necessary and essential to find removability]; Dar v. Olivares, 956
F.Supp.2d 1287, 1297-99 (N.D. Okla. 2013) [grant of 212(c) relief was not res judicatabarring denial of
naturalization because of lack of GMC as a finding of GMC is not a prerequisite to a grant of 212(c)].
However, collateral estoppel / res judicata applies to bar re-litigation in immigration proceedings of issues
or claims decided in federal court. See in this section ¶ 7.gg (p.675), infra. See also generally Pennington,
A Preclusive Effect: Issue Preclusion in Immigration Practice, Immigration Law Advisor, EOIR, AILA Doc.
No. 15020465.
4.g. Where Respondent Raises Procedural Due Process Challenge—Salgado-Diaz v. Ashcroft, 395 F.3d
1158 (9th Cir. 2005) [removal order vacated and respondent entitled to a hearing on whether NTA should
be dismissed where he claimed he was arrested in violation of the Fourth Amendment and was illegally
removed legacy INS during previous deportation hearing]. See also Matter of Garcia-Flores, 17 I&N Dec.
325, 329 (BIA 1980) [citing Accardi and finding that NTA can be challenged where government “[I]gnores
an entire procedural framework designed to insure the fair processing of an action affecting an
individual”].
4.h. Where Respondent Raises Substantive Due Process Challenge—Wang v. Reno, 81 F.3d 808, 818–19
(9th Cir. 1996) [where U.S. officials created a Hobson’schoice of testifying truthfully and risking further
torture in China or perjuring himself and going to jail, they could not return him to China to face torture
when he testified truthfully]; Lawson v. Gerlinski, 332 F.Supp.2d 735, 742–43 (M.D. Pa. 2004) [long term
LPR with no relief who cooperated with government, received reduction in sentence and feared harm if
returned to his country, was entitled to a substantive due process hearing on theory that the state created
his danger]; Builes v. Nye, 239 F.Supp.2d 518, 525–26 (M.D. Pa. 2003) [substantive due process is
violated where government informant would be sent to Colombia to face certain death]. But the
Pennsylvania cases have been overruled by the Third Circuit. Rranci v. U.S. Att’y Gen., 540 F.3d 165, 171
(3d Cir. 2008) [citing Kamara for the proposition that the “state-created danger exception has no place in
our immigration jurisprudence”]; Kamara v. U.S. Att’y Gen., 420 F.3d 202, 216–18 (3d Cir. 2005) [rejecting
state-created danger exception holding it has no place in immigration jurisprudence]; Enwonwu v.
Gonzales, 438 F.3d 22, 29–31 (1st Cir. 2006) [following Kamara and rejecting state-created danger
theory]. But See Morgan v. Gonzales, 495 F.3d 1084, 1092–94 (9th Cir. 2007) [recognizing state-created
danger exception but finding on the facts that convicted drug dealer’s fear of return to country did not
amount to gross negligence and deliberate indifference on the part of U.S. officials]; Momennia v. Estrada,
268 F.Supp.2d 679 (N.D. Tex. 2003) [rejecting claim that FBI, through deliberate indifference, gave rise to
a state-created danger to Iranian deportee who had provided assistance to the FBI, and that the
government had a duty not to remove him to Iran].
4.i. Where DHS Estopped—Cf. INS v. Hibi, 414 U.S. 5 (1973) [affirmative misconduct standard]; Poole v.
Mukasey, 522 F.3d 259, 264–66 (2d Cir. 2008) [petitioner’s mother’s naturalization 9 months after his 18th
birthday, may not necessarily bar citizenship where the government, without explanation, delayed his
mother’s case more than 2 years]; Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1165–68 (9th Cir. 2005)
[government would be estopped from asserting fraudulent Page 527 reentry as a basis for removing
respondent if he can prove that legacy INS improperly deported him while his deportation hearing was
pending]; Otarola v. INS, 270 F.3d 1272 (9th Cir. 2001) [government estopped from applying the stop time
rule where IJ granted suspension and INS took a frivolous appeal to permit the stop-time rule to be
applied]; Fano v. O’Neill, 806 F.2d 1262 (5th Cir. 1987) [reversing summary judgment for government
where alien alleged “willful, wanton and reckless” conduct by INS in delaying application]; Akbarin v. INS,
669 F.2d 839, 843 (1st Cir. 1982); Tejeda v. INS, 346 F.2d 389 (9th Cir. 1965); Corniel-Rodriguez v. INS,
532 F.2d 301 (2d Cir. 1976) [2nd preference applicant did not receive oral or written notice that marriage
would invalidate petition]; Harriott v. Ashcroft, 277 F.Supp.2d 538, 542–45 (E.D. Pa. 2003) [ordering
approval of certificate of citizenship and payment of attorney’s fees under equitable estoppel theory where
certificate denied because child turned 18 during delay and delay was 14 times longer than the 60 days
normally contemplated for certificate]; Far East Home Care, Inc., 2009-PER-170 (BALCA July 13, 2009)
[relying on equitable estoppel, BALCA held that the employer was not precluded from refiling under PERM
despite the SWA’s placement of the job order where, prior to placement, the employer informed the SWA
that it intended to refile under PERM].
Cases Holding No Estoppel
INS v. Pangilinan, 486 U.S. 875, 884 (1988) [cannot have equitable estoppel if it overrides “a public policy
established by Congress”]; INS v. Miranda, 459 U.S. 14 (1982); INS v. Hibi, 414 U.S. 5 (1973); Gutierrez
v. Lynch, 830 F.3d 179 (5th Cir. 2016) [no affirmative misconduct where AOS applicant with approved I-89
and verbal assurance his residency card would arrive in 3 months waited 4 years and missed opportunity
for citizenship under Child Citizenship Act]; Solis-Chavez v. Holder, 662 F.3d 462, 471-72 (7th Cir. 2011)
[estoppel does not arise due to lengthy delay in processing naturalization applications post-INS v.
Miranda]; Perez-Mejia v. Holder, 663 F.3d 403, 417-18 (9th Cir. 2011)[government error in granting LPR
status knowing of petitioner’s conviction cannot be the basis to estop his removal proceeding]; Ahmed v.
Holder, 624 F.3d 150, 154-56 (2d Cir. 2010) [distinguished Corniel-Rodriguez on substantially similar facts
and noted that the doctrine of equitable estoppel has “narrowed substantially” since Corniel-Rodriguez];
Robertson-Dewar v. Holder, 646 F.3d 226, 229-30 (5th Cir. 2011) [11-year delay in adjudicating natz
application was not affirmative misconduct warranting termination of deportation proceedings]; Shin v.
Mukasey, 547 F.3d 1019 (9th Cir. 2008) [where DHS official engaged in affirmative misconduct by selling
green cards but petitioner was not an innocent dupe estoppel did not bar removal proceedings];
Mustanich v. Mukasey, 518 F.3d 1084, 1087–90 (9th Cir. 2008) [estoppel could not be used to prevent
removal where legacy INS failed to accept or act on adults’ requests to naturalize petitioner before his
18th birthday]; Morgan v. Gonzales, 495 F.3d 1084, 1091–92 (9th Cir. 2007) [convicted drug dealer who
was allowed to remain in U.S. for many years while cooperating with the government was not entitled to
estoppel due to extreme delay in removing him absent a duty by the government not to do so]; Mudric v.
U.S. Att’y Gen., 469 F.3d 94, 99–100 (3d Cir. 2006) [respondent cannot claim equitable estoppel because
prejudicial delay in adjudicating asylum and AOS is not affirmative misconduct]; Andrade v. Gonzales, 459
F.3d 538, 545 n.2 (5th Cir. 2006) [absent affirmative misconduct, DHS is not equitably estopped from
bringing proceedings based on criminal convictions that were presented to USCIS before granting AOS];
Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1318–19 (11th Cir. 2006) [DHS is not estopped from denying
LPR status to a person who adjusted status and had conditions removed despite fully disclosing his
ineligibility due to a drug conviction because there is no showing of affirmative misconduct]; Elia v.
Gonzales, 431 F.3d 268, 276 (6th Cir. 2005) [no affirmative misconduct by government and no reliance by
incarcerated respondent in failing to hold removal hearing within 5 years so he could apply for §212(c)
relief]; Tovar-Alvarez, 427 F.3d 1350, 1353–54 (11th Cir. 2005) [2-year delay in deciding naturalization
petition after interview does not equitably estop government from seeking removal]; Raffington v.
Cangemi, 399 F.3d 900, 902–03 (8th Cir. 2005) [rejecting Otarola and holding that even if the government
had filed a frivolous, but ultimately successful appeal, it would not constitute affirmative misconduct for
estoppel]; Rios v. Ziglar, 398 F.3d 1201, 1208–10 (10th Cir. 2005) [where deadline passed for NACARA
but government told applicant to resubmit application and then kept the fee, no estoppel, even if
affirmative misconduct, because application submitted beyond deadline]; Varela v. Ashcroft, 368 F.3d 864
(8th Cir. 2004) [no affirmative misconduct in denial of AOS and placing respondent in removal
proceedings]; Socop-Gonzalez v. INS, 272 F.3d 1176, 1183–85 (9th Cir. 2001) (en banc) Page 528 [no
affirmative misconduct warranting equitable estoppel where INS negligently provided misinformation to
the respondent that he could dismiss his appeal of his deportation order before the BIA and file AOS with
INS]; Kowalczyk v. INS, 245 F.3d 1143, 1149–51 (10th Cir. 2001) [9-year delay in deciding asylum claim
where country conditions have changed does not warrant estoppel]; Cortez-Felipe v. INS, 245 F.3d 1054,
1057 (9th Cir. 2001) [no estoppel where INS fails to file OSC after service but later files NTA thereby
preventing suspension]; Costa v. INS, 233 F.3d 31, 37–38 (1st Cir. 2000) [same]; Rojas-Reyes v. INS, 235
F.3d 115, 126 (2d Cir. 2000) [no estoppel for INS’s delay in promulgating repapering regulations to permit
cancellation]; Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000) [no estoppel where petitioner has not
lost any rights and where government simply negligently provided information]; Westover v. Reno, 202
F.3d 475, 481 (1st Cir. 2000) [no affirmative misconduct when person stopped on reentry after advising
her that she could leave and apply for a new visa]; Tefel v. Reno, 180 F.3d 1286, 1302–304 (11th Cir.
1999) [where INS continued to accept suspension applications where there was a possibility Congress
would amend the statute to pretermit such applications, no estoppel]; Moosa v. INS, 171 F.3d 994, 1003–
06 (5th Cir. 1999) [improper dismissal of an appeal as untimely and not complying with circuit precedent
does not permit estoppel]; Kadirov v. Beers, 71 F.Supp.3d 519 (E.D. Pa. 2014) [USCIS is not estopped
from denying naturalization to derivative children whose parent obtained LPR status by fraud where the
government decided to terminate removal proceedings against the children]; Clavis v. Ashcroft, 281
F.Supp.2d 490, 497 (E.D.N.Y. 2003) [unexplained 13-year delay in completing removal proceedings that
resulted in the deprivation of an INA §212(c) hearing did not constitute affirmative misconduct for
estoppel]; Diallo v. Reno, 61 F.Supp.2d 1361, 1369–71 (N.D. Ga. 1999) [no affirmative misconduct in
processing lottery adjustment]; Omni Packaging v. INS, 930 F.Supp. 28, 33–35 (D.P.R. 1996) [INS not
estopped from denying 3d preference petition on grounds that applicant is not a manager or executive
notwithstanding previous L-1 approvals]; Eskite v. District Director, 901 F.Supp. 530, 538 (E.D.N.Y. 1995)
[no estoppel to deport Haitian who had been “screened-in” after spending 18 months at Guantanamo];
Azizi v. Thornburgh, 719 F.Supp. 86, 97–98 (D. Conn. 1989), aff’d, 908 F.2d 1130, 1136 (2d Cir. 1990) [no
affirmative misconduct where IJ and INS misadvised respondent about the effect of Marriage Fraud
Amendments Act]; Mukherjee v. INS, 793 F.2d 1006 (9th Cir. 1986) [no estoppel where incorrect negligent
statement about not being subject to 2-year foreign residency was not a deliberate lie]; Sachdev v. INS,
788 F.2d 912 (2d Cir. 1986) [distinguishing Corniel-Rodriguez in 2d preference where DOS form specified
marriage would invalidate petition]; Jaa v. INS, 779 F.2d 569 (9th Cir. 1986) [no estoppel where 58-month
delay between alien’s submission of AOS and denial due to neglect]; Gonzalez v. McNary, 765 F.Supp.
721, 724 (S.D. Fla.), aff’d on other grounds, 980 F.2d 1418 (11th Cir. 1993) [no estoppel where 3-year
delay adjudicating petition and spouse’s death resulted in denial]; Matter of Izummi, 22 I&N Dec. 169,
195–96 (AC 1998) [INS not estopped where it approved scores of investor petitions under same program
previously and where it informed petitioner prior to adjudication that it would approve petition]. The BIA
takes the view that it has no authority to grant estoppel against the Service to preclude it from taking a
lawful course of action that it is empowered to pursue by statute or regulation. The BIA’s power is limited
to authority conferred upon it by AG. Matter of Vides Casanova, 26 I&N Dec. 494, 514 (BIA 2015) [BIA
has no authority to grant equitable estoppel]; Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991)
[could not grant AOS nunc pro tunc where person ineligible at present time due to INS error]. See also
Matter of United Airlines Flight UA802, 22 I&N Dec. 777, 783 (BIA 1999); Matter of Tayabji, 19 I&N Dec.
264 (BIA 1985); Matter of Tuakoi, 19 I&N Dec. 341 (BIA 1985); Robertson-Dewar v. Holder, 646 F.3d 226,
229 (5th Cir. 2011) [recognizing BIA has no authority to grant estoppel]. But see Matter of Truong, 22 I&N
Dec. 1090 (BIA 1999) [INS did not engage in affirmative misconduct when it placed respondent
erroneously in exclusion proceedings].
Judicial Estoppel—The doctrine of judicial estoppel is a judge-made doctrine that seeks to prevent a
litigant from asserting a position inconsistent with one that she had previously asserted in the same or in a
previous proceeding to gain an unfair advantage. See Young Wong Park v. U.S. Att’y Gen., 472 F.3d 66,
73 (3d Cir. 2007) [rejecting claim of judicial estoppel where DHS amended charge to include aggravated
felony after remand]. Page 529
4.j. Where Respondent Makes Claim to Citizenship [CFR §§239.2(a)(2), or where the respondent is a
national of the U.S., 8 CFR §§239.2(a)(1)]
(1) Generally—An IJ may not terminate removal proceedings, on his own, to permit a respondent to
proceed to a final hearing on a pending naturalization case, unless DHS agrees. Under DOJ
regulations, the IJ may terminate proceedings and permit the respondent to proceed to a final hearing
on a pending naturalization application where there is prima facie eligibility for naturalization and the
matters involves “exceptionally appealing or humanitarian factors” 8 CFR §1239.2(f), but (according to
the BIA) only if DHS affirmatively communicates that respondent is prima facie eligible, Matter of
Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007) [DHS denial of naturalization cannot be taken as a
communication that respondent is prima facie eligible]. See prior law, Matter of Cruz, 15 I&N Dec. 236
(BIA 1974) [IJ may terminate proceedings if respondent is prima facie eligible and the Service or court
acknowledges that person is eligible]. For a more extensive discussion of Hidalgo and federal cases,
see Ch. 13, ¶ II.A.4.i (p.2171), infra.
If evidence indicates a person is a USC or if the evidence outweighs contrary evidence, the individual
should not be arrested or taken into custody and no NTA should be issued. Memo, Morton, Ass’t Sec.,
ICE, Superseding Guidance on Reporting and Investigating Claims to United States Citizenship, Policy
No. 16001.1, FEA No. 045-01 (Nov. 19, 2009), reprinted in 15 Bender’s Immigr. Bull. 438, 464–66
(Mar. 15, 2010)
But it is unconstitutional, under any circumstances, to deport a USC. Trop v. Dulles, 356 U.S. 86 (1957)
[violates Eighth Amendment]; Ng Fung Ho v. White, 259 U.S. 276 (1922); Fierro v. INS, 66 F.Supp.2d
229, 231 (D. Mass. 1999) [“INS has no discretion to execute removal orders against United States
citizens.”]. A respondent who claims citizenship bears the burden by a preponderance of the evidence
to prove derivative citizenship. Leal Santos v. Mukasey, 516 F.3d 1, 4 (1st Cir. 2008) [once DHS
establishes that respondent was born abroad, burden then shifts to respondent to prove derivative
citizenship]; Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330–31 (BIA 1969).
However, if the government determines that the person is making a false claim to U.S. citizenship in an
effort to be released from detention, it may initiate criminal proceedings under INA §243(a) and 8 USC
§1101. Leslie v. Herrion, 677 F.Supp.2d 651 (W.D.N.Y. 2010) [government charged and obtained
conviction of person in custody for falsely claiming to be a U.S. citizen when requesting release from
detention].
(2) Defining a National of the U.S.—INA §101(a)(22)(B), 8 USC §1101(a)(22)(B) defines a national of the
U.S. as a citizen or “a person who, though not a citizen of the United States, owes permanent
allegiance to the United States.” It can only be achieved by birth or full naturalization which includes
taking the public oath. Fernandez v. Keisler, 502 F.3d 337, 348–53 (4th Cir. 2007) [deferring to the BIA
under Brand X/Chevron]; Patel v. Napolitano, 706 F.3d 370 (4th Cir. 2013) [followed Fernandez]. An
LPR cannot be a national: (1) simply by long residence in the U.S., U.S. v. Sotelo, 109 F.3d 1446, 1448
(9th Cir. 1997), Carreon-Hernandez v. Levi, 543 F.2d 637, 638 (8th Cir. 1976), Oliver v. INS, 517 F.2d
426 (2d Cir. 1975); or (2) because they filed a naturalization application or signed the oath of
allegiance on the form. Ajlani v. Chertoff, 545 F.3d 229, 234–35 (2d Cir. 2009) [does not fit into any
category set aside for nationals and cannot be a citizen without a public oath]; Abiodun v. Gonzales,
461 F.3d 1210, 1215–16 (10th Cir. 2006) [signing an oath of allegiance at a naturalization interview
without taking the oath at a public ceremony does not trigger nationality]; Okafor v. Gonzales, 456 F.3d
531 (5th Cir. 2006) [same]; Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. 2004) [finding that a
person may only be a national by birth in a U.S. territory (American Samoa and Swains Island)]. See
also Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 14-15 (D.C. Cir. 2015) [manifestations of
allegiance are insufficient to establish a person as a national as only INA §308, 8 USC §1408 provides
the categories of nationality]; Omolo v. Gonzales, 452 F.3d 404 (5th Cir. 2006) [a person may become
a U.S. national only by birth or naturalization]; Abou-Haidar v. Gonzales, 437 F.3d 206 (1st Cir. 2006)[a
person is not a national where he took all appropriate naturalization steps but did not attend the
naturalization ceremony]; Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350, 1352–53 (11th Cir. 2005)
[neither long residence in the U.S. nor Page 530 signing the oath of allegiance without taking the oath
at a public ceremony results in citizenship]; Marquez-Almanzar v. INS, 418 F.3d 210, 216–19 (2d Cir.
2005) [the statute requires someone to have been a national and therefore does not allow an LPR to
become a national by manifesting allegiance even where it involved service in U.S. Army, an existing
application for naturalization, registration with selective service and complete immersion in American
society]; Theagene v. Gonzales, 411 F.3d 1107, 1112 (9th Cir. 2005) [service in Armed Forces without
more is not a basis for national status]; Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280, 1285–87
(11th Cir. 2005) [a person may only be a U.S. national by birth under §1408 or by naturalization];
Alwan v. Ashcroft, 388 F.3d 507, 512–13 (5th Cir. 2004) [filing a naturalization application, registering
with Selective Service, and swearing to the oath are insufficient to confer national status]; Reyes-
Alcaraz v. Ashcroft, 363 F.3d 937 (9th Cir. 2004) [rejecting nationality claim under Perdomo-Padilla for
LPR who served in the Armed Forces and took the standard military oath]; U.S. v. Jimenez-Alcala, 353
F.3d 858, 861 (10th Cir. 2003) [following Perdomo-Padilla]; Salim v. Ashcroft, 350 F.3d 307 (3d Cir.
2003) [rejecting the view that filing an application for naturalization is sufficient to prove permanent
allegiance to the U.S.]; In re U.S., 316 F.3d 1071 (9th Cir. 2003) [where naturalization application is
withdrawn there is no nationality claim]; Oliver v. INS, 517 F.2d 426, 428 n.3 (2d Cir. 1975); De La
Rosa v. U.S., 229 F.3d 80, 86 n.12 (1st Cir. 2000); Shittu v. Elwood, 204 F.Supp.2d 876 (E.D. Pa.
2002); Matter of Navas-Acosta, 23 I&N Dec. 586, 586–87 (BIA 2003). But see Asemani v. Islamic
Republic of Iran, 266 F.Supp.2d 24 (D.D.C. 2003) [in Foreign Sovereign Immunities Act context a
national of the U.S. includes someone who has filed an application for naturalization], or (3) because
they took an oath upon enlisting in the U.S. Army Reserve. Dragenice v. Gonzales, 470 F.3d 183 (4th
Cir. 2006).
(3) Federal Review—Only a court of appeals may initially review an adverse decision by the BIA on a
nationality claim. INA §242(b)(5); Rivera-Martinez v. Ashcroft, 389 F.3d 207 (1st Cir. 2004) [dismissing
habeas and declining to transfer citizenship claim to circuit court where habeas was filed beyond 30-
day period for circuit court review]; Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002); U.S. v.
Morin, 80 F.3d 124 (4th Cir. 1996); Patino v. Chertoff, 595 F.Supp.2d 310 (S.D.N.Y. 2009) [injunction to
prevent removal proceeding and to issue certificate of citizenship denied because INA §242(a)(2)(D) is
not applicable to INA §242(g) and legal issue therefore cannot be addressed except in review of
removal order in circuit court]; Geronimo v. Mukasey, 535 F.Supp.2d 808 (W.D. Tex. 2008) [declaratory
judgment action in district court was dismissed because the petitioner had a removal hearing and an
independent action is barred, although court transferred the case to the Fifth Circuit]; Jones v. DHS,
325 F.Supp.2d 551 (E.D. Pa. 2004) [habeas raising nationality claim should be transferred to circuit
court even where person has been deported]; Lee v. Ashcroft, 268 F.Supp.2d 150 (E.D.N.Y. 2003)
[transferring habeas to circuit court because it lacked jurisdiction under INA §242(b)(5)]; Alvarez-
Garcia v. INS, 234 F.Supp.2d 283, 289–90 (S.D.N.Y. 2002).
The courts of appeals have authority to transfer cases to the district court for an evidentiary hearing
where a genuine issue of fact has been raised. INA §242(b)(5)(B); Hernandez Rosales v. Lynch, 821
F.3d 625 (5th Cir. 2016) [case transferred to the district court where there was a factual issue whether
petitioner was born out-of-wedlock within the meaning of 8 USC §1409(c) and may therefore be a
citizen]; Brown v. Holder, 763 F.3d 1141, 1147 n.3 (9th Cir. 2014) [transferred case to district court in
Central District of California despite respondent having been deported and physically removed where
claim of constitutional violation was raised]; Belleri v. U.S., 712 F.3d 543 (11th Cir. 2013) [remanding
case to district court for fact-finding on derivative citizenship claim as it affects court’s jurisdiction]; Dent
v. Holder, 627 F.3d 365, 35-76 (9th Cir. 2010) [transferred case to district court under INA §242(b)(5)
(B) where there was a genuine issue as to respondent’s U.S. citizenship]; Azize v. BCIS, 594 F.3d 86
(2d Cir. 2010) [petitioner filed nunc pro tunc habeas proceedings 3 years after final order, case
transferred to circuit court and then remanded to factually determine citizenship]; Ayala-Villanueva v.
Holder, 572 F.3d 736 (9th Cir. 2009) [where genuine factual issue was raised as to whether father
legitimated child in derivative citizenship claim, case transferred to district court for evidentiary
hearing]; Lopez v. Holder, 563 F.3d 107 (5th Cir. 2009). Page 531 Review under INA §242(b)(5) does
not extend, however, to a claim that a prior application for naturalization was improperly denied as that
must be brought in a proceeding in the district court. Abiodun v. Gonzales, 461 F.3d 1210, 1216–17
(10th Cir. 2006) [distinguishing between a review of a claim that one is a citizen which is reviewed
under INA §242(b)(5) and an improper denial of a naturalization petition which must be reviewed under
8 USC §1421(c)].
(4) Exhaustion of Remedies—In addition, a claim to U.S. citizenship or nationality may not be barred for
failure to exhaust administrative remedies under 8 USC §1252(d)(1). Brown v. Holder, 763 F.3d 1141,
1146-47 (9th Cir. 2014) [applicant knowingly and intelligently waived BIA appeal but could still raise
nonfrivolous claim to citizenship]; Theagene v. Gonzales, 411 F.3d 1107, 1110–12 (9th Cir. 2005)
[distinguishing Taniguchi and finding that a nationality claim in the circuit court under INA §242(b)(5) is
not subject to the exhaustion requirement of INA §242(d)(1)]; Rivera v. Ashcroft, 394 F.3d 1129 (9th
Cir. 2005) [a habeas action to establish a nonfrivolous claim of U.S. citizenship cannot be barred even
if respondent failed to exhaust his remedies because the Fifth and Fourteenth amendments are
implicated; Taniguchi distinguished as frivolous]; Moussa v. INS, 302 F.3d 823, 825 (8th Cir. 2002) [in
challenge to BIA’s reversal of IJ’s determination that person was derivative citizen, court had
jurisdiction to determine whether applicant was an alien in order to decide whether statutory
exhaustion under §1252(d)(1) even applied]. But see Shepherd v. Holder, 678 F.3d 1171, 1176-78
(10th Cir. 2012) [exhaustion was needed but finding that appeal of IJ’s order without going to BIA
constituted exhaustion under the circumstances]; Del Rio v. Green, 274 F.Supp.3d 265, 267-70 (D.N.J.
2017) [prudential exhaustion applies barring consideration of citizenship claim in habeas until IJ/BIA
process]; Boyd v. ICE, 344 F.Supp.2d 869 (E.D.N.Y. 2004) [dismissing habeas challenging
reinstatement order on grounds that respondent failed to exhaust administrative remedies in regard to
his citizenship claim where he did not present claim to IJ, did not appeal IJ’s decision and did not seek
review in circuit court]; DeJesus Corona v. Derosa, 325 F.Supp.2d 516, 523–25 (D.N.J. 2004)[where
petitioner had several previous opportunities to raise claim of citizenship before IJ or federal judge in
criminal reentry case and failed to do so, habeas barred to review USC claim]; Atem v. Ashcroft, 312
F.Supp.2d 792, 796–99 (E.D. Va. 2004) [where citizenship challenge was filed in habeas in the district
court but petitioner failed to appeal nationality issue to BIA, case could not be transferred to circuit
court because of failure to exhaust]; Giap v. INS, 311 F.Supp.2d 438, 440 (S.D.N.Y. 2004). A nationality
claim that might otherwise be barred under INA §242(a)(2)(C) because the person has committed a
criminal offense will nevertheless be heard in circuit court because INA §242(a)(2)(D) preserves
jurisdiction for legal claims. Brue v. Gonzales, 464 F.3d 1227, 1231–32 (10th Cir. 2006) [reviewing
claim that aggravated felon acquired citizenship through adoptive parents]. But see Shepherd v.
Holder, 678 F.3d 1171, 1179-83 (10th Cir. 2012) [no jurisdiction under 242(a)(2)(D) whether
government was collaterally estopped from challenging citizenship issue because questions of law
only apply to constitutional or statutory construction issues and the issue of collateral estoppel was a
question of decisional not statutory law in that it did not involve the construction or interpretation of a
statute; jurisdiction however existed to determine whether person is an alien and barred by 242(a)(2)
(C)]. The circuit court in a citizenship case may not be barred by administrative collateral estoppel.
Shepherd v. Holder, 678 F.3d 1171, 1184-85 (10th Cir. 2012) [administrative collateral estoppel is not
applicable to circuit court’s review of citizenship claim].
(5) Burden of Proof and Standard of Review—If the circuit court determines that there is a “genuine issue
of material fact about the petitioner’s” USC status, it will remand the case to the district court for an
evidentiary hearing to determine whether the person subject to removal is a U.S. citizen. INA §242(b)
(5)(B). Traditional summary judgment standards apply and therefore a court of appeals cannot refuse
to allow de novo review of citizenship in district court where the applicant would be entitled to a trial if
such evidence were presented in opposition to a summary judgment motion. Chau v. INS, 247 F.3d
1026, 1029 (9th Cir. 2001). The government in the district court must prove deportability by “clear,
unequivocal evidence.” If it first offers evidence of foreign birth, the burden shift to the applicant to
show “substantial Page 532 credible evidence” of citizenship. Possession of a U.S. passport and
successfully petitioning for family members based upon that passport is “substantial credible
evidence.” Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009). Once substantial credible
evidence is established the burden shifts back to the government to provide that respondent is
removable by clear and convincing evidence. The Ninth Circuit en banc, determined: that the “clear,
unequivocal and convincing” standard is the same as “clear and convincing;” that it does not
approximate the “beyond a reasonable doubt” standard; and that the scope of review of the district
court’s decision is not de novo review but rather “clear error” under Fed. R. Civ. P. 52(a). Mondaca-
Vega v. Holder, 808F.3d 413 (9th Cir. 2015) (en banc) [overruling its 45-year-old precedent in Lim v.
Mitchell, 431 F.3d 197 (9th Cir. 1970) requiring de novo review in the circuit court of the district court’s
determination that the person is not a citizen and holding that the standard the government must meet
by “clear, unequivocal, and convincing” evidence is not higher than “clear and convincing”]. In the
burden shifting process at least one district court has rejected the government’s contention that the
petitioner must prove “substantial credible evidence” by the “preponderance of the evidence” standard.
Alexander v. Sessions, 263 F.Supp.3d 740, 743-44 (D. Ariz. 2017) [relying on Mondaca-Vega burden
shifting and holding that government carries ultimate burden by clear and convincing evidence]. See
also Brown v. Lynch, 831 F.3d 1146, 1150 (9th Cir. 2016) [under “clear error” standard the government
was not deliberately indifferent and therefore did not violated respondent’s constitutional rights when its
conduct resulted in delays that prohibited respondent from obtaining derivative citizenship]; Dent v.
Sessions, 243 F.Supp.3d 1062 (D. Ariz. 2017) [various delays of over 21 years in processing different
naturalization applications did not amount to a violation of due process because there was no
prejudice and the applicant was unable to present facts that INS intentionally obstructed or acted with
deliberate indifference to his applications]. The district court in the remanded proceeding may consider
evidence outside of the record. Batista v. Ashcroft, 270 F.3d 8 (1st Cir. 2001) [court will consider
evidence outside the administrative record where there is an explanation for failure to raise it
previously]; Alexander v. INS, 74 F.3d 367 (1st Cir. 1996).
4.k. Where Respondent Was Citizen at Time of Conviction of Charges Forming Basis of Removal—Costello
v. INS, 376 U.S. 120 (1964) [denaturalized USC cannot be deported for 2 CIMTs when he was convicted
of the crimes while he was a citizen]; Adams v. U.S. Att’y Gen., 472 F.App’x 898 (11th Cir. 2012)
[reaffirming Costello in case where respondent convicted of crime when he was a citizen]. But see U.S. ex
rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950); Matter of Gonzalez-Muro, 24 I&N Dec. 472 (BIA
2008) [reaffirming Matter of Rossi, 11 I&N Dec. 514 (BIA 1966), distinguishing Costello;respondent could
be removed for crimes he was convicted of while a citizen, because he committed the crimes while he
was an LPR, had his citizenship revoked because he obtained citizenship by concealing activity]; Matter
of Rossi, 11 I&N Dec. 514 (BIA 1966).
4.l. Where Notice of Proceeding or Charge Is Insufficient—Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA
1990); Velasquez-Escovar v. Holder, 768 F.3d 1000, 1005 (9th Cir. 2014) [despite 8 CFR §1003.15(d)(1)
that puts the burden on respondent to inform the immigration court that the address on the NTA is
incorrect, the BIA erred in upholding an in absentia order because the NTA itself only tracks the statute
requiring notice if a person changes his address and provides no warning regarding an incorrect address];
Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001) [where NTA only charged person as agg. felon for money
laundering, but not agg. felon for conspiracy to commit wire fraud based upon other subsections of the
statute, respondent not given notice]; Xiong v. INS, 173 F.3d 601, 607–08 (7th Cir. 1999) [violation of due
process to base deportability on an aggravated felony which was never charged nor used as the basis for
deportation]; Choeum v. INS, 129 F.3d 29, 40 (1st Cir. 1997) [NTA that did allege ground that would have
barred judicial review could not deprive petitioner of judicial review]. But see Mshihiri v. Holder, 753 F.3d
785, 790 (8th Cir. 2014) [an NTA issued before person was not removable under F-1 reinstatement
provision as 5 months had not yet passed, does not divest the IJ jurisdiction to commence proceedings
under 8 CFR §1003.14(a)]; Boadi v. Holder, 706 F.3d 854 (7th Cir. 2013) [no statutory or constitutional
violation where IJ stated he would continue the case to decide removability and then transfer the case, but
instead moved forward with a final hearing, took testimony presented by DHS, and gave a brief 20-day
continuance to allow Page 533 respondent to get counsel and file for relief]; Chambers v. Mukasey, 520
F.3d 445 (5th Cir. 2008) [where NTA defectively alleged charge but respondent pleaded to it, he waived
challenge].However, for purposes of relief, DHS need not charge the person with an offense that would
bar relief. U.S. v. Reveles-Espinoza, 522 F.3d 1044, 1048–49 (9th Cir. 2008) [no due process violation
where petitioner’s NTA stated he was being deported for a controlled substance offense but was denied
relief because cultivation of marijuana under Cal. law was an aggravated felony]; Matovski v. Gonzales,
492 F.3d 722, 737–39 (6th Cir. 2007) [due process not violated where inadmissibility under §212(a)(6)(C)
(i) is raised in relief phase but not charged in NTA because the IJ may rule on any ground of
inadmissibility that arises during the course of proceedings]; Salviejo-Fernandez v. Gonzales, 455 F.3d
1063, 1065–66 (9th Cir. 2006) [due process not violated where ICE did not charge respondent with an
aggravated felony in the NTA but used the conviction to find respondent ineligible for cancellation]; Taylor
v. U.S., 396 F.3d 1322, 1329–30 (11th Cir. 2005) [upholding district court decision to bar §212(c) relief
where respondent was not charged in NTA as an aggravated felon but where “conduct actually constituted
an aggravated felony”]. Also, failure to note the date and time of hearing on NTA does not render NTA
ineffective where subsequent notice of hearing was sent to respondent. Popa v. Holder, 571 F.3d 890 (9th
Cir. 2009) [service of NTA without setting date and time does not violate 8 USC §1229(a)(1)(G)(i) or
1229(a)(1)(F)(ii) or due process]; Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) [where DHS served
NTA without date and time but court subsequently sent date and time notice, NTA was sufficient];
Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012) [same]; Haider v. Gonzales, 438 F.3d 902, 906–08
(8th Cir. 2006) [upholding in absentia order and challenge to NTA that did not contain date and time of
hearing where subsequent notice of date and time was sent to respondent]. Similarly, an illegible
signature and title on the NTA does not render the NTA invalid or deprive the IJ of jurisdiction. Kohli v.
Gonzales, 473 F.3d 1061 (9th Cir. 2007).
4.m. Where Respondent Is Temporary Resident and DHS Has Not Revoked His or Her Residency—Matter
of Medrano, 20 I&N Dec. 216 (BIA 1990). But see Matter of Juarez, 20 I&N Dec. 340 (BIA 1991)
[termination of SAW status unnecessary to commence proceeding].
4.n. Where Respondent Was Improperly Charged as Deportable When He Was Inadmissible—Margulis v.
Holder, 725 F.3d 785 (7th Cir. 2013) [person stopped “just inside Canadian territory” but not admitted to
Canada nevertheless departed the U.S., should be treated on return as an applicant for admission, and
removal proceeding should be terminated]; Matter of R-D-, 24 I&N Dec. 221 (BIA 2007) [deportation
charge dismissed when person returning from Canada should have been charged as inadmissible]. But
see Fang Li v. Holder, 743 F.3d 354 (2d Cir. 2014) [issue raised on denied motion to reopen came too late
where respondent did not object during removal proceedings].
4.o. Where DHS Agrees to Terminate Proceeding Because NTA Improvidently Issued—Matter of Vizcarra-
Delgadillo, 13 I&N Dec. 51 (BIA 1968). DHS is authorized to cancel proceedings where respondent: (1) is
a national of the U.S.; (2) is not deportable or inadmissible; (3) is deceased; (4) is not in the U.S.; (5)
failed to file timely petition under INA §216(c) but the failure was excused; (6) NTA was improvidently
issued; or (7) circumstances in the case have changed. 8 CFR §§239.2(a), 1239.2(a). However, once
proceeding have commenced, DHS cannot unilaterally terminate them. The decision rests with the IJ.
Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998).
4.p. Where DHS Has Charged Respondent with NSEERS Violation but Believes that There Is Insufficient
Evidence that Violation Was Willful—Memo, Cerda, Acting Principal Legal Advisor, ICE (Jan. 8. 2004),
AILA Doc. No. 06050512.
4.q. Where DHS Agrees to Administratively Close Case and Recharge Someone in Removal Proceedings
so that She Can Get Benefit of Cancellation of Removal—The process, called “repapering” will be used
where the person: (1) would have been eligible for suspension of deportation under the 7- or 10-year
provisions but for the stop-time rule under INA §240A(d)(1) or eligible for INA §212(c) relief but for
AEDPA; and (2) is eligible for cancellation of removal and is not otherwise barred by INA §240A(d)(1).
DHS will not agree to reopen on this basis but once reopened they are generally required to agree to
administratively close the case absent Page 534 unusual circumstances. Memo, Cooper, G.C. (HQCOU
90/16.1-P) (Dec. 7 1999), Memo, Virtue, G.C. (HQCOU 90/16.1-P) (Dec. 7, 1998), reprinted in 77 No. 2
Interpreter Releases 39, 55–58 (Jan. 10, 2000). The BIA also agreed to administratively close files where
repapering was available. Memo, Scialabba, Vice Chair of the BIA (Mar. 14, 2000), available at
http://www.usdoj.gov/eoir/chip6.pdf and Memo, Schmidt, Chairman of the BIA (Aug. 20, 2000) available at
http://www.usdoj.gov/eoir/vll/genifo/streamimplem.pdf. See Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004)
[finding jurisdiction to review denial of administrative closure to repaper and remanding to BIA to
determine whether repapering policy had been violated]; but see Cantu-Delgadillo v. Holder, 584 F.3d 682,
686–89 (5th Cir. 2009) [BIA’s refusal to administratively close file to await “repapering” over DHS
opposition to closure did not violate regulations, due process or equal protection]; Rojas-Reyes v. INS,
235 F.3d 115, 125–26 (2d Cir. 2000)[failure to promulgate repapering regulations to permit cancellation did
not create due process, equal protection or estoppel claims]. See also Checknan v. McElroy, 313
F.Supp.2d 270, 274–76 (S.D.N.Y. 2004) [cannot mandamus Service to repaper applicant]; Castro-Pu v.
Mukasey, 540 F.3d 864, 868–69 (8th Cir. 2008) [no jurisdiction to review DHS decision to decline to
repaper].
4.r. Where NTA Not Issued by Proper Authorities—Only certain DHS officers may issue NTAs, 8 CFR
§239.1(a), although the Secy. of DHS has reserved the authority under 8 CFR §2.1 to delegate other
persons, presumably without additional regulation. 8 CFR §§239.1(a)(46), 1239.1. Ali v. Gonzales, 435
F.3d 544 (5th Cir. 2006) [issuing an NTA and signing an NTA are different concepts; an officer not
authorized to issue an NTA may sign it as long as he was authorized by the appropriate official and the
official ultimately signed the document submitted to the immigration court]. But see Dailide v. U.S. Att’y
Gen., 387 F.3d 1335, 1341 (11th Cir. 2004)[the Director of the Office of Special Investigations had the
authority to issue an NTA although not on the list of officers named in 239.1(a) because the AG
established the Office of Special Investigations to deport Nazis].
4.s. Where DHS Violated the Certification Requirements of INA §239(e)—When DHS initiates an
enforcement action by arresting a respondent in certain locations, it must include on the NTA a statement
it has complied with 8 USC §1367 prohibiting it from disclosing information to anyone and prohibiting the
use of certain information from certain sources in generating the NTA. INA §239(e)(1), 8 USC §1229(e)
(1). Under INA §239(e)(2) those locations are a domestic violence shelter, rape crisis center, supervised
visitation center, family justice center, a victim services or victim services provider, a community based
organization or a courthouse if the respondent is appearing in connection with a protection order case,
child custody case, or other civil or criminal case relating to domestic violence, sexual assault, trafficking
or stalking in which the respondent has been battered or subject to extreme cruelty. Under 8 USC §1367,
DHS may not make an adverse determination on admissibility or deportability by relying on information
obtained from abusers in VAWA cases, perpetrators of crimes in U visa cases and traffickers in T visa
cases. Memo, Torres, Director of DRO and Form, Investigations, ICE (Jan. 22, 2007), AILA Doc. No.
07022210.
4.t. Where Statute Under Which DHS Seeks Deportation Is No Longer Effective—Matter of B-, 5 I&N Dec.
255 (BIA 1953). But see Attul v. INS, 42 F.3d 958 (5th Cir. 1995).
4.u. Where DHS Arrest and Detention Arise out of Unfair Labor Practice by Person’s Employer—Former O.I.
§287.3a. But see Montero v. INS, 124 F.3d 381 (2d Cir. 1997) [rejecting claim that labor policy precludes
deportation].
4.v. Where Respondent Is Deceased or Is Not in U.S.— 8 CFR §239.2(a)(3)–(4).
4.w. Where International Law Bars Removal—At least one court has held that the International Covenant on
Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, particularly Article 13, may bar removal of a person
who has children residing in the U.S. even if in compliance with U.S. law because “no one shall be
subjected to arbitrary or unlawful interference with his … family.…” Maria v. McElroy, 68 F.Supp.2d 206,
232 (E.D.N.Y. 1999). See also Matter of Wayne Smith & Hugo Armendariz, et al., Report No. 81/10
Interamerican Commission on Human Rights (July 12, 2010) [it is a violation of the rights of family life and
the life of the child under Articles V, VI & VII of the American Declaration and the right to due process and
a fair trial under Articles XVIII and XXVI to deport a person who is an aggravated felon without providing a
hearing on Page 535 ties to the U.S. and other equities], AILA Doc. No. 10081363; Beharry v. Reno, 183
F.Supp.2d 584 (E.D.N.Y. 2002), rev’d on jurisdictional grounds, 329F.3d 51 (2d Cir. 2003) [finding person
eligible for INA §212(h) relief under international law where the crime predates the 1996 changes but the
conviction came after IIRIRA]. But see Ayanbadejo v. Chertoff, 517 F.3d 273, 278 (5th Cir. 2008)
[upholding denial of motion to amend complaint to add an ICCPR claim because Sosa v. Alvarez-
Machain, 542 U.S. 692 (2004) explicitly held it does not create obligations enforceable in federal courts];
Martinez-Lopez v. Gonzales, 454 F.3d 500, 502–03 (5th Cir. 2005) [international law and treaties that are
not self-executing do not bar removal of aggravated felon whose conviction was a misdemeanor under
federal law but a felony under state law]; Guaylupo-Moya v. Gonzales, 423 F.3d 121, 132–37 (2d Cir.
2005) [finding Beharry’s international law analysis inappropriate because Congress clearly intended to bar
LPRs with aggravated felonies from obtaining the benefit of INA §212(h) and Beharry’s use of nonbinding
international law normsrelied on Congress’s ambiguity]; Flores v. Southern Peru Copper Corp., 343 F.3d
140, 163–64 n.35 (2d Cir. 2003) [in Alien Tort Claim case, court found ICCPR insufficient source of
customary international law, noting that it was not self-executing under U.S. law]; Shibeshi v. U.S., 920
F.Supp.2d 105, 107-08 (D.D.C. 2013) [scattered theories by perennial litigant against DHS for violation of
the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights
dismissed as treaties are not self-executing but aspirational]; Naoum v. U.S. Att’y Gen., 300 F.Supp.2d
521 (N.D. Ohio 2004) [deportation of noncitizen parent does not violate ICCPR]; Beshli v. DHS, 272
F.Supp.2d 514, 525–26 (E.D. Pa. 2003) [no relief from removal because Articles 1-27 of ICCPR are not
self-executing and since Congress has not passed any implementing legislation there is no enforceable
action]; Taveras-Lopez v. Reno, 127 F.Supp.2d 598, 608–10 (M.D. Pa. 2000) [rejecting use of ICCPR,
customary international law or jus cogens to require a waiver for aggravated felons otherwise barred by
cancellation or INA §212(h)]. See also U.S. v. Duarte-Acero, 296 F.3d 1277, 1283 (11th Cir. 2002) [in
criminal case court found ICCPR violations do not create any judicially-enforceable rights because ICCPR
is not self-executing].
4.x. Where Respondent Is Prima Facie Eligible for TPS or Deferred Enforced Departure—Memo, Carpenter,
Deputy Gen. Co., HQCOU 120/12.2-P (Feb. 7, 2002), reported in 79 No. 15 Interpreter Releases 524,
530–38 (Apr. 8, 2002) [establishing Service policy of agreeing to administrative closure where someone is
prima facie eligible]. Similarly, the BIA has “urged” DHS to administratively close cases where a prima
facie approvable visa petition is pending. Matter of Rajah, 25 I&N Dec. 127, 135 n.10 (BIA 2009) [“We
encourage the DHS to consider agreeing to administrative closure in appropriate circumstances, such as
where there is a pending prima facie approvable visa petition.”]; Matter of Hashmi, 24 I&N Dec. 785, 791
n.4 (BIA 2009) [“In appropriate circumstances, such as where there is a pending prima facie approvable
visa petition, we urge the DHS to consider agreeing to administrative closure of the case”].
4.y. Where Respondent Has Asylum Status and Status Has Not Been Revoked—Generally, the government
may proceed without revoking refugee (as distinguished from asylum) status, but not all circuits have
decided the question. For further discussion, see Chapter 4, ¶¶ XIV.E.7 & 8 (p.990), infra.
4.z. Where DHS Asked for Termination because Respondent Was Previously Removed and Is Not Entitled
to Hearing before IJ to Determine Reinstatement of Prior Order Under INA §241(a)(5)—Matter of W-C-B-,
24 I&N Dec. 118 (BIA 2007) [the IJ has no authority to reinstate a prior order of removal and proceedings
were properly terminated on DHS’s motion]. Or where DHS asks to terminate “regular” removal
proceedings to place respondent in expedited “aggravated felony” proceedings under 8 USC §1228(b).
Aguilar-Aguilar v. Napolitano, 700 F.3d 1238, 1243 (10th Cir. 2012) [IJ’s termination of proceedings so
DHS could pursue expedited proceeding under 8 USC §1228(b) is not a final order subject to appellate
review].
4.aa. Rule of Proportionality Violation—Sunday v. U.S. Att’y Gen., 832 F.3d 211, 217-19 (3d Cir. 2016) [post-
Padilla rejecting both Eight and Fifth Amendment arguments under theory that deportation is a penalty
and it is not proportional to his conduct and length of residence]; Hinds v. Lynch, 790 F.3d 259 (1st Cir.
2015) [post-Padilla the court rejected an Eighth and Fifth Amendment challenge to removal as a penalty
requiring an individualized hearing to determine Page 536 whether removal disproportionately sanctions
respondent]; Marin-Marin v. Sessions, 852 F.3d 192 (2d Cir. 2017) [same].
4.bb. Federal Court Review of Motion to Terminate—The BIA’s decision to uphold IJ’s decision to decline to
terminate removal proceeding is reviewable in federal court. Ali v. Mukasey, 524 F.3d 145, 151 (2d Cir.
2008) [reviewing but finding no error in BIA’s decision not to terminate proceedings and remand the case
to the asylum office]. But see Aguilar-Aguilar, supra.
5. Procedural Rights Before Hearing
INA §239, 8 USC §1229, 8 CFR pts. 239, 1239, and 1240
5.a. Applicable Provisions—Under IIRIRA §304 (effective Apr. 1, 1997), the following provisions are
applicable:
(1) Notice of Issuance and Content of NTA
(a) Requires that NTA be given in person, or if personal service is not practicable, by mail (certified
return receipt no longer required) to the respondent or his counsel of record. INA §239(a)(1), 8 USC
§1229(a)(1), 8 CFR §1003.13. See e.g., Cruz-Gomez v. Lynch, 801 F.3d 695 (6th Cir. 2015) [notice
to counsel cannot be equated in all cases to notice to the client because client was to be personally
served unless not practicable; but where notice was personally served on counsel with client
present at the hearing the statute is satisfied].However, if the respondent does not appear, the NTA
must be served by personal service on him, on a responsible adult at his home, on his counsel, or
by mail at his last known address. Matter of Peugnet, 20 I&N Dec. 233 (BIA 1991); Matter of Huete,
20 I&N Dec. 250 (BIA 1991) [under former statute, IJ was sustained in dismissing a proceeding
where the respondent was served by mail and the certified return receipt was not signed by
respondent, or a responsible person at respondent’s household]. If the respondent did not receive
the NTA and the notice of hearing it contains and therefore was never notified of the initiation of
removal proceedings or her address obligations under INA §239(a)(1), the IJ may not enter an in
absentia order. Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). However, where the NTA is sent to
respondent’s correct address (for which there is no dispute) and the NTA is sent by certified return
receipt but is left unclaimed at the post office by the respondent, proper service has been made and
an in absentia order is proper.Matter of M-D-, 23 I&N Dec. 540 (BIA 2002) [respondent’s claim that
certified return receipt was not required and regular mail is more reliable was rejected where
certified mail came back unclaimed from respondent’s uncontested address]. Special service rules
apply to respondents who are minors, confined or mentally incompetent. 8 CFR §103.5a(c)(2).
Similarly, a detained respondent must get personal service of his hearing or where impractical
notice by mail to him through the custodian as well as notice to the custodian; and court personnel
must sign the certificate of service and check the appropriate box regarding service. EOIR, Uniform
Docketing System Manual (Dec. 2013) at IV-3, AILA Doc. No. 14100644.
(b) The NTA shall contain the following information: (1) the nature of the proceedings; (2) the legal
authority for the proceedings; (3) the acts or conduct alleged to be in violation of law; (4) the
charges against the respondent and the statutory provisions alleged to have been violated; (5) that
the respondent may be represented by counsel and will be provided a list of counsel and a period
of at least 10 days to procure counsel [Note: the AG may proceed after 10 days. INA §239(b), 8
USC §1229(b)]; (6) that the respondent must immediately provide the AG with a written address
and telephone number (if any) where he or she may be contacted; (7) that the respondent must
immediately provide the AG with a written record of any change of address or telephone number;
(8) that if the respondent fails to comply with the notice requirements and does not provide an
address (or change of address) and telephone number, a notice in writing need not be sent; (9) the
time and place of the proceedings; and (10) that an in absentia order will be entered for failure to
appear unless there are exceptional circumstances. INA §239(a)(1), 8 USC §1229(a)(1). Notice of
address or change of address must be provided by the respondent “immediately” on Form EOIR-
33/IC. INA §239(a)(1)(F)(ii), 1229(a)(1)(F)(ii). But see Velasquez-Escovar v. Holder, 768 F.3d 1000,
1005 (9th Cir. 2014) Page 537 [despite 8 CFR §1003.15(d)(1) which puts the burden on respondent
to inform the immigration court that the address on the NTA is incorrect, the BIA erred in upholding
an in absentia order because the NTA itself only tracks the statute requiring notice if a person
changes his address and provides no warning regarding an incorrect address]; Beltran v. INS, 332
F.3d 407 (6th Cir. 2003) [in striking down an in absentia order the court found the EOIR-33
requirement ultra vires of the statute and a letter notifying EOIR of the change of address was
sufficient]. But see Alvarado-Arenas v. Sessions, 851 F.3d 827 (8th Cir. 2017) [affidavit from wife
that husband was out of the country when the NTA was filed could be disregarded as self-serving
by the BIA and where other facts, including applications, indicated he was in the US, the court
rejected the “exceptional circumstances” exception to the validity of the in absentia order].The
notice shall include the person’s name, “A” number, old address and telephone, new address and
telephone, and the effective date of change. 8 CFR §1003.15. DHS must provide the address of
IJ’s office where NTA is filed. If respondent is in DHS custody, DHS has responsibility to notify the
court. 8 CFR §1003.19(g); Memo, Hamilton, Assoc. Gen. Counsel (HQCOU 50/10.2) (Apr. 13,
1998), reprinted in 75 No. 17 Interpreter Releases 627, 636 (May 4, 1998).
(c) The NTA is in English and need not be in Spanish (H.R. Conf. Rep. No. 828, 104th Cong., 2d
Sess. at 211). Singh v. Holder, 749 F.3d 622, 626-27 (7th Cir. 2014) [where NTA was personally
served it need not be given in a language the respondent understands even where there was a
claim respondent could not read or understand the document and was a minor because personal
service put him on notice]. The notice does not require that it be in any specific language. Lopes v.
Gonzales, 468 F.3d 81, 85 (2d Cir. 2006) [rejecting claim that notice was deficient because it was
not in Portuguese]. However, DHS may be required to translate the NTA so the respondent
understands the nature of the proceedings. Louis v. Meissner, 530 F.Supp. 924 (S.D. Fla. 1981).
(d) If a respondent receives oral notice of the consequences of an in absentia order, absent
exceptional circumstances, she is precluded for 10 years from obtaining virtually all forms of
discretionary relief, including INA §240A (cancellation of removal, e.g., former suspension and
§212(c)); §240B (voluntary departure), §245 (adjustment), §248 (change of status), and §249
(registry). INA §240(b)(7), 8 USC §1229a(b)(7).
(2) Notice of Change in Time or Place of Proceeding
(a) In the case of a change or postponement in the time and place of the proceeding, written notice
shall be given in person or (if personal service is not practicable) written notice by mail shall be
given to the respondent or his counsel. INA §239(a)(2)(A), 8 USC §1229(a)(2)(A). The AG is no
longer required to provide notice by certified return receipt mail. The notice shall state the new time
or place for the hearing and the consequences of failing to appear, including an in absentia order.
INA §239(a)(2)(A)(ii).
(b) Where DHS properly served the NTA, notice is not required at all if respondent failed to provide
change of address. INA §239(a)(2)(B). If the respondent is in DHS custody, DHS has responsibility
to notify the court. 8 CFR §1003.19(g); Memo, Hamilton, Assoc. Gen. Counsel (HQCOU 50/10.2)
(Apr. 13, 1998), reprinted in 75 No. 17 Interpreter Releases 627, 636 (May 4, 1998).
(3) Effective Date—IIRIRA §309 removal proceedings take effect Apr. 1, 1997. Cases pending on that
date apply the former deportation and exclusion procedures under former INA §§235, 236, 242, and
242B. The only exceptions are: (1) if an evidentiary hearing has not commenced the AG may elect to
use the new procedures, IIRIRA §309(c)(2); or (2) if the AG elects to terminate and restart proceedings
as removal proceedings, IIRIRA §309(c)(3). Courts have rejected a retroactive “settled expectation”
argument where respondent seeks to be placed in deportation rather than removal proceedings.
Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1106–08 (9th Cir. 2003) [where respondent filed for asylum
before Apr. 1, 1997 no settled expectation that he would be put in deportation rather than removal
proceedings]; Lopez-Urenda v. Ashcroft, 345 F.3d 783 (9th Cir. 2003) [following Vasquez-Zavala Page
538 dismissing retroactivity argument for person who filed asylum application before IIRIRA’s passage
on Sept. 30, 1996]; Uspango v. Ashcroft, 289 F.3d 226 (2d Cir. 2002) [same].
5.b. Service of OSC (now NTA) under Former Law—If the respondent signed various parts of I-221, there is
a fingerprint, and INS officer stated he served document, it may be assumed OSC was served personally.
Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990).
5.c. Ten-Day Notice—Respondent must be granted at least 10 days after service of NTA before hearing can
commence to provide opportunity to secure counsel, INA §239(b), unless respondent requests in writing
an earlier date. But see Matter of Santos, 19 I&N Dec. 105 (BIA 1984) [must be harmful error].
5.d. Initiation of Proceedings in a Particular Location—There is a right to seek a change of venue once
proceedings are initiated, but there is no right to have proceedings initiated in a particular place. Latu v.
Ashcroft, 375 F.3d 1012, 1019 (10th Cir. 2004) [action challenging decision to commence proceedings in a
particular venue is barred by INA §242(g)]; Calla-Collado v. U.S. Att’y Gen., 663 F.3d 680, 685 (3d Cir.
2011) [detention and initiation of proceedings in Louisiana where petitioner had no contacts and was
therefore forced to take less effective counsel did not violate his rights].
5.e. Filing Documents with the Immigration Court—The Immigration Courts have guidelines regarding the
acceptance and rejection of motions and pleadings filed by attorneys and unrepresented respondents.
Memo, Pasierb, Chief Clerk of the Immigration Court, Office of CIJ, Processing Defective Filings at the
Immigration Courts Beginning on July 1, 2008 (June 17, 2008), AILA Doc. No. 08072365; Immigration
Court Practice Manual §3.1(b). At the Master Calendar Hearing (which includes all hearing before an
individual hearing is set) the respondent should be prepared to address the matters set forth in
Immigration Court Practice Manual §4.15 (l)(i) including such matters as admitting or denying charges,
designating a country of removal or declining to do so, the type of relief requested and the time need to do
so, and the need for an interpreter.
(1) Rejection of Filing Upon Receipt—The clerk is authorized to reject filings where there is: (a) no proof
of service; (b) improper proof of service; (c) no fee receipt, proof of payment or waiver where fee
required or where there is evidence of incorrect payment; (d) no name or A# of respondent; (e) no
EOIR-28 or evidence that other counsel entered appearance without steps taken pursuant to co-
counsel or substitute counsel guidelines under Immigration Court Practice Manual §2.1(b); (f) incorrect
filing location because case is in different court or before BIA; (g) no case pending unless bond
redetermination motion or hearing scheduled; (h) missing or improper signature, rubber stamped
signatures or any other lack of original signatures; (i) lack of translations of foreign documents or lack
of proper certification; (j) no cover page; (k) no two hole punch; (l) no pagination; (m) no tabbing of
proposed exhibits or documents; and (n) no proposed order.
(2) Untimely Filings Are Not Rejected—Untimely filings are stamped and processed and given to the
judge, whether or not submitted with a motion to accept untimely filing.
(3) Third Party Filings Rejected—Court staff directed to reject any filing submitted by a third party.
(4) Change of Address Rejected If Not on EOIR-33/IC—A change of address submitted in letter or any
form other than EOIR-33 must be rejected.
5.f. Change of Venue
(1) In General—There is a right to seek a change of venue. 8 CFR §1003.20(b). Venue may be changed
“only after the other party has been given notice and an opportunity to respond to the motion to change
venue.” Id. The regulation is violated where DHS sua sponte transfers venue without notice to the
other side. Jian v. INS, 28 F.3d 256, 258–59 (2d Cir. 1994) [affirming deportation order because there
was no harm to respondent]. According to the Immigration Court Practice Manual at 5.10(c) counsel
filing a change of venue must include: (1) the date and time of the next scheduled hearing; (2) an
admission or denial of the allegations in the NTA; (3) a designation or refusal to designate a country of
removal; (4) if Page 539 requesting relief a description of the basis for eligibility; (5) the address and
telephone of place respondent would reside if the motion was granted; (6) if respondent has moved, a
completed EOIR-33/IC form; and (7) a detailed explanation of the reasons for the request. Nor may an
IJ sua sponte change venue without giving the parties an opportunity to respond. Memo [OPPM 18-
01], Keller, Chief IJ, EOIR (Jan. 17, 2018), at 2, AILA Doc. No. 18011733. The one exception to that
rule is that a COV may be issued without a motion where a case is moved from the detained to the
nondetained docket and such “clerical transfers” are allowed only when they are within the
administrative control list for paired courts. Id. The IJ should not grant a COV without a fixed address
where the movant may be reached. Id. at 4. The CIJ has also directed IJs to “make every effort
consistent with procedural due process requirements, to complete as much of the case as possible”
prior to granting the motion. Id.
The IJ may change venue only for good cause after balancing the factors relevant to the venue issue.
Matter of Rahman, 20 I&N Dec. 480 (BIA 1992). Factors include administrative convenience,
expeditious treatment of the case, location of witnesses, cost of transporting witnesses or evidence to
a new location and pursuant to regulation the provision of the address where the applicant could be
reached. Where appropriate, the motion should specify the witnesses, the nature of their possible
testimony and why counsel could not be obtained in the present location. Rahman at 482. Other
factors to be considered include: (1) nature of evidence and its importance to alien’s claim; (2) whether
request is due to unreasonable conduct on alien’s part; (3) number of prior continuances granted.
Campos v. Nail, 43 F.3d 1285 (9th Cir. 1994) [class-wide injunctive relief granted where IJ had
personal policy of denying all change of venue motions to Salvadoran and Guatemalan asylum
seekers]; Monter v. Gonzales, 430 F.3d 546, 558–60 (2d Cir. 2005) [denial of change of venue from
Buffalo to NYC reversed where government agreed to change and respondent was deprived of his
right to rebut a finding that he made a material misrepresentation on his I-751]; Romero-Morales v.
INS, 25 F.3d 125 (2d Cir. 1994) [reversing in absentia order where IJ did not consider basis for
nonappearance, although respondent had filed a change of venue motion]; Baires v. INS, 856 F.2d 89
(9th Cir. 1988) [reversing deportation order where change of venue denied because IJ found request
too close to hearing date]; Chlomos v. INS, 516 F.2d 310 (3d Cir. 1975) [where alien resided in New
Jersey and retained counsel there, court should have granted change of venue from Florida];
Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) [admission to alien smuggling by
petitioner’s counsel in motion to change venue was struck where it was factually untrue and ineffective
assistance of counsel]; Garcia-Guzman v. Reno, 65 F.Supp.2d 1077 (N.D. Cal. 1999) [IJ abused
discretion when she refused to change venue to cure obvious deprivation of counsel despite absence
of any prejudice in outcome]; Matter of Seren, 15 I&N Dec. 590 (BIA 1976). But see Calla-Collado v.
U.S. Att’y Gen., 663 F.3d 680, 683-84 (3d Cir. 2011) [concession to removal grounds to obtain change
of venue was a strategic decision and petitioner failed to show prejudice]; Dugboe v. Holder, 644 F.3d
462, 471 (6th Cir. 2011) [not an abuse of discretion to deny change where respondent did not concede
charges and CBP officer was in the city where hearing was being held]; Selimi v. INS, 312 F.3d 854,
860–61 (7th Cir. 2002) [granting change of venue based upon concession of removal was not per se
coercive]; Lovell v. INS, 52 F.3d 458 (2d Cir. 1995) [upholding denial of change of venue in absence of
prejudice at INA §212(c) hearing]; Hernandez-Vivas v. INS, 23 F.3d 1557 (9th Cir. 1994) [filing timely
motion to change venue does not establish reasonable cause not to appear; due process argument
rejected]; Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir. 1992) [same]; Maldonado-Perez v. INS, 865
F.2d 328 (D.C. Cir. 1989) [denying change of venue in political asylum context]; La Franca v. INS, 413
F.2d 686 (2d Cir. 1969); Matter of Chow, 20 I&N Dec. 647, 652–53 (BIA 1993), aff’d, Chow v. INS, 12
F.3d 34 (5th Cir. 1993) [not unreasonable for IJ to deny change of venue where deportability remains
at issue]; Matter of Rivera, 19 I&N Dec. 688 (BIA 1988) [where respondent cannot show prejudice and
govt.’s only witness was in venue where hearing held denial upheld]; Matter of Victorino, 18 I&N Dec.
259 (BIA 1982). An applicant must have a fixed street address at a new location before a change of
venue can be granted. 8 CFR §1003.20(c). Page 540
(2) De Novo Review of Prior Orders Not Permitted—The Chief IJ takes the view that the law of the case
doctrine applies when a change of venue is granted and absent exceptional circumstances, the
receiving judge is “not free to hear the case de novo and ignore any orders prior to the venue change.”
Memo [OPPM 18-01], Keller, Chief IJ, EOIR (Jan. 17, 2018), AILA Doc. No. 18011733. Exceptions to
the law of the case include: (1) a supervening rule of law; (2) compelling or unusual circumstances; (3)
new evidence available to the transferee judge; or (4) clear error in the previous order resulting in
manifest injustice. Id. at 3. See also Duran Gonzalez v. DHS, 712 F.3d 1271, 1277 (9th Cir. 2013)
[intervening controlling authority is an exception to law of the case]; Zhang v. Gonzales, 434 F.3d 993,
996–98 (7th Cir. 2006) [absent exceptional circumstances, such as a change in the law, new evidence,
or compelling circumstances, a new IJ assigned to a case on remand should not make inconsistent
rulings to the prior IJ based merely on differing impressions of credibility].
(3) Completing as Much of the Case as Possible—The Chief IJ also takes the view that the IJ,
“consistent with procedural due process requirements,” should complete as much of the case as
possible and should obtain pleadings, resolve the issue of deportability, removability, or inadmissibility,
determine what forms of relief will be sought and set a date certain by which the relief applications, if
any, must be filed with the sending court. OPPM 01-02 (Oct. 9. 2001), supra. However, a lawyer
should not stipulate to charges to obtain a change of venue where the stipulation may harm the client.
Vanegas-Ramirez v. Holder, 768 F.3d 226, 233-37 (2d Cir. 2014) [despite assumption that respondent
was subject to egregious constitutional violation permitting suppression under the Fourth Amendment,
the respondent’s decision to voluntarily concede removability because he believed it would increase
his chances of obtaining a change of venue was an independent source of information that could be
used]; cf. Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) [admission to alien smuggling by
assistance].
(4) Judicial Review—At least one circuit asserts that a decision regarding change of venue is
discretionary and not reviewable in federal court under INA §242(a)(2)(B)(ii). Ballesteros v. Ashcroft,
452 F.3d 1153, 1159–60 (10th Cir. 2006) [no jurisdiction to review claim that venue should be changed
because DHS reorganization placed case outside the Ninth Circuit]. But see Kucana v. Holder, 558
U.S. 233 (2010) [finding that jurisdiction cannot be barred under INA §242(a)(2)(B)(ii) by a DOJ
regulation regarding motions to reopen and therefore casting doubt on decisions denying jurisdiction
based upon regulations]. See also Mata v. Lynch, 576 U.S. __, 135 S.Ct. 2150 (2015) [circuit courts
have jurisdiction over motions to reopen even if the underlying matter may in the agency or the court’s
view not be justiciable].
5.g. Continuances
(1) In General—A respondent may be entitled to a continuance for good cause and for a reasonable
time. 8 CFR §§1003.29, 1240.6. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Sibrun, 18
I&N Dec. 354 (BIA 1983). AG Sessions has now referred to himself the determination of what
constitutes “good cause” for a continuance for a collateral matter to be adjudicated. Matter of L-A-B-R-,
27 I&N Dec. 245 (AG 2018) In determining continuances (and change of venue), “a myopic insistence
upon expeditiousness in the face of a justifiable request for delay can render the alien’s statutory rights
merely an empty formality.” Baires, 856 F.2d 89, 91 (9th Cir. 1988). Nor can case completion goals or
the IJ’s need to manage his calendar trump a case-by-case analysis of the need for the continuance.
Rendon v. Holder, 588 F.3d 669, 675–76 (9th Cir. 2009) [IJ violated due process when she denied a
continuance to permit respondent in a cancellation case to obtain additional evidence regarding her
USC son’s medical and educational issues]; Hashmi v. U.S. Att’y Gen., 531 F.3d 256, 260–62 (3d Cir.
2008) [where petitioner was eligible for AOS based on wife’s pending I-130, case completion goals
cannot be a reasoned basis for denying a continuance]; Freire v. Holder, 647 F.3d 67 (2d Cir. 2011) [in
context of AOS before USCIS where arriving alien sought continuance of removal proceeding, BIA’s
general complaints concerning waiting on another agency (USCIS) to decide AOS were insufficient];
but see Bouras v. Holder, 779 F.3d 665, 670-72 (7th Cir. 2015) [upheld IJ’s no-continuance-except-for-
emergency-or-extenuating-circumstance-policy Page 541 in I-751 good faith marriage review where
respondent sought continuance to have former wife appear]. Moreover, an IJ’s denial of a continuance
to allow a new attorney to prepare because the IJ’s crowded docket would put off the cases for years is
impermissible as “an immigrant’s right to counsel should not be sacrificed because of the shortcomings
of the immigration system itself.” Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074 (9th Cir. 2007)
[cancellation applicant denied statutory right to counsel where he sought brief continuance so new
attorney could familiarize himself with the case]. Also, a continuance may be granted to allow relief
before USCIS even if the IJ may not grant the relief. Clifton v. Holder, 598 F.3d 486 (8th Cir. 2010) [BIA
could not deny motion to reopen or remand for person seeking AOS before USCIS solely on the
grounds that the BIA had no jurisdiction over the AOS where petitioner requested reopening to obtain
a continuance or stay proceedings before the IJ so petitioner could seek a AOS before USCIS]. In
addition: “[w]hen the government fails to notify Petitioners in advance of the hearing of evidence and
also does not take reasonable steps to make the preparer of that evidence available for cross-
examination at the hearing, the proper course is for the IJ either to grant a continuance or to refuse to
admit the evidence.” Cinapian v. Holder, 567 F.3d 1067, 1076–77 (9th Cir. 2009) [presentation of DHS
forensic report finding documents fraudulent was a denial of due process where it was not presented
to respondent prior to asylum hearing, although completed months before, and IJ declined to grant a
continuance]. See also Bondarenko v. Holder, 733 F.3d 899 (9th Cir. 2013) [IJ violated due process by
not granting continuance to allow respondent in asylum case to investigate government’s adverse
forensic report that it had for 8 months prior to confronting respondent]. The Ninth Circuit similarly
considers a number of factors when reviewing an IJ’s denial of a continuance, including: (1) the nature
of the evidence excluded as a result of the denial of the continuance; (2) the reasonableness of the
immigrant’s conduct; (3) the inconvenience to the court; and (4) the number of continuances previously
granted. Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) [reviewing factors and determining that the IJ
abused his discretion by not granting a continuance during the appeal to the AAO of a denied I-140];
Zhanling Jiang v. Holder, 658 F.3d 1118, 1120-21 (9th Cir. 2011) [IJ abused her discretion when she
denied continuance to obtain authentication of documents that she requested for first time at the
hearing and where authentication could have been achieved through testimony]. In order to reverse
the denial of a continuance, there must be a showing of prejudice. Jonaitiene v. Holder, 660 F.3d 267,
272 (7th Cir. 2011) [petitioner’s assertion, without more, that his counsel was unable to present
evidence without a continuance was not sufficient]. But a refusal to grant a continuance resulting in a
denial of counsel does not require a showing of prejudice in the majority of circuits. Montes-Lopez v.
Holder, 694 F.3d 1085 (9th Cir. 2012) [denial of counsel, unlike ineffective assistance of counsel, does
not require a showing of prejudice; citing other circuits].
EOIR, while acknowledging the appropriate standards for continuances, has sought to make
continuances more restrictive. See also Memo, MaryBeth Keller, Chief Immigration Judge, EOIR,
OPPM 17-01, Continuances (July 31, 2017) AILA Doc. No. 17080104[suggesting a far stricter
interpretation of continuances particularly for obtaining counsel, attorney preparation, merits hearings,
and requests by DHS for file location and security checks]. EOIR suggests an IJ in deciding on a
continuance should look to “the reason and support for the request as well as any opposition to it, the
timing of the request, the respondent’s detention status, the complexity of the case, the number and
length of any prior continuances, and concerns of administrative efficiency” as well as the “effects of
multiple continuances on the efficient administration of justice…” Memo at 3. After giving a respondent
“at least one continuance” to seek counsel, the IJ should consider the length of the continuance and
should inquire into the respondent’s diligence in securing representation. Id. at 4. In regard to
continuances for attorney preparation “multiple requests for additional preparation time based on a
practitioner’s workload concerns related to large numbers of other pending cases should be rare and
warrant careful review” and in appropriate cases the IJ should consider referral of the attorney to EOIR
disciplinary counsel for sanctions. Id. at 5. In regard to continuances for merits hearings “a request for
a continuance based upon a scheduling conflict with the respondent’s representative that arose after
the individual merits hearing has been calendared should be rare and should be considered very
carefully.” Id. Page 542 Similarly, DHS counsel’s request for continuance should be “comparatively
rare” and where it is done for security checks or to locate a file it is appropriate for the IJ to inquire on
the record about the ongoing process to obtain the information. Id. at 5-6.
Continuances Granted—Owino v. Holder, 771 F.3d 527, 532-33 (9th Cir. 2014) [denial of request to
submit evidence several days before IJ was going to render decision reversed for failure to apply
proper standard]; Ferreira v. U.S. Att’y Gen., 714F.3d 1240 (11th Cir. 2013) [BIA’s consideration solely
of availability of visa where priority date was 6 years away, was error because it failed to consider all
other factors under Matter of Rajah and Matter of Hashmi]; Freire v. Holder, 647 F.3d 67 (2d Cir. 2011)
[in context of AOS before USCIS where arriving alien sought continuance of removal proceeding];
Cruz Rendon v. Holder, 603 F.3d 1104, 1110-11 (9th Cir. 2010) [IJ “most concerned with the purported
inconvenience to herself resulting from delay of the case” rather than allowing the continuance to get
medical evaluations for the child in a cancellation case]; Karapetyan v. Mukasey, 543 F.3d 1118, 1129–
33 (9th Cir. 2008) [IJ erred in denying continuance to applicant for asylum who sought to correct failure
to obtain fingerprints that pretermitted his asylum application]; Masih v. Mukasey, 536 F.3d 370 (5th Cir.
2008) [BIA abused its discretion for failing to grant continuance under OI 245.4(a)(6) and Matter of Ho,
15 I&N Dec. 692 (BIA 1976) where AOS was properly filed but employment-based visa numbers
retrogressed]; Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008) [IJ and BIA erred in not granting
continuance to await I-130 approval where applicant could have AOS before USCIS]; Hashmi v. U.S.
Att’y Gen., 531 F.3d 256, 260–62 (3d Cir. 2008) [where petitioner was eligible for AOS based on wife’s
pending I-130, case completion goals cannot be a reasoned basis for denying a continuance]; Badwan
v. Gonzales, 494 F.3d 566 (6th Cir. 2007) [IJ erred in denying unopposed first continuance where
respondent sought to obtain a translation of his divorce to qualify for AOS]; Ahmed v. Gonzales, 465
F.3d 806 (7th Cir. 2006) [IJ erred in not granting continuance to §245(i) eligible respondent with
approved 4th preference petition who sought continuance to file a labor certification (LC) to speed up
process]; Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005) [IJ made legal error in denying
continuance where respondent had filed I-130 and I-485 as part of marriage based AOS with USCIS];
Biwot v. Gonzales, 403 F.3d 1094, 1098–1101 (9th Cir. 2005)[where detained respondent given only 5
working days to find counsel and then denied continuance, his due process right to counsel was
violated]; Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) [IJ’s denial of a continuance to finalize LC
without a reason consistent with §245(i) violated that statute]; Lin v. Ashcroft, 377 F.3d 1014, 1032–34
(9th Cir. 2004) [IJ erred in allowing asylum case of minor to go forward where counsel was obviously
unprepared]; Herbert v. Ashcroft, 325 F.3d 68 (1st Cir. 2003) [it was arbitrary and capricious to deny a
continuance where counsel was required to be before a federal magistrate at the same time he was
required to appear before the IJ]. Similarly, it “is not the quantity of continuances that have been
granted, but the adequacy of the postponement afforded.” Jiang v. Houseman, 904 F.Supp. 971, 979
(D. Minn. 1995) [reversing exclusion order where applicant given inadequate opportunity to find
counsel]; Yi v. INS, 257 F.Supp.2d 791, 796–97 (E.D. Pa. 2003) [reversing BIA where IJ denied
continuance for more evidence on CAT claim despite the fact that the motion was unopposed and
stated the information to be obtained]; Colindres-Aguilar v. INS, 819 F.2d 259 (9th Cir. 1987); Castro
Nuno v. INS, 577 F.2d 577 (9th Cir. 1978).
Continuances Denied—Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1252-53 (11th Cir. 2018) [due process
was not violated where respondent was denied a continuance in violation of EOIR rules to argue that
his request for cancellation should not be pretermitted based upon a same-day filing by the
government because he could not show ultimate prejudice in that the BIA and the circuit court
ultimately found it should have been pretermitted based upon his criminal conviction for a CIMT];
Cadavedo v. Lynch, 835 F.3d 779, 783-84 (7th Cir. 2016) [no abuse of discretion where IJ recited
Hashmi criteria and continuance to investigate marriage fraud in first petition had little chance of
success]; Choge v. Lynch, 806 F.3d 438 (8th Cir. 2015) [where respondent seeking AOS was given 10
months to pay fees, provide fingerprints, submit I-864, and bring wife to testify, it was not an abuse of
discretion to deny continuance]; Giri v. Lynch, 793 F.3d 797, 800-802 (7th Cir. 2015) [it was not
arbitrary for IJ to deny respondent’s first request for continuance after he had asked to expedite Page
543 hearing, did not file a continuance request in advance of the hearing, had over a year-and-a-half to
prepare, was warned of the deadlines, gave no reason for his lack of compliance and there was no
“good cause” evidence in the record]; Bouras v. Holder, 779 F.3d 665, 670-72 (7th Cir. 2015) [upheld
IJ’s no-continuance-except-for-emergency-or-extenuating-circumstance-policy in I-751 good faith
marriage review where respondent sought continuance to have former wife appear]; Suarez-Diaz v.
Holder, 771 F.3d 935, 943-45 (6th Cir. 2014) [not an abuse of discretion to deny continuance because
of pending weak Cuban AOS where removal case was pending over a year]; Antia-Perea v. Holder,
768 F.3d 647, 659-60 (7th Cir. 2014) [denied continuance to seek pardon did not violate due process
because there is no protected liberty or property interest]; Ortiz-Estrada v. Holder, 757 F.3d 677, 679-
80 (7th Cir. 2014) [IJ did not abuse his discretion after multiple continuances to wait for the outcome of
respondent’s DUI case where his traffic record was bad enough to deny cancellation for lack of good
moral character]; Mazariegos-Paiz v. Holder, 734 F.3d 57, 65-66 (1st Cir. 2013) [respondent’s request
for a continuance mid-trial for translation of documents and to gather corroborative evidence was
properly denied where he had more than a year to obtain evidence and translations]; Cole v. U.S. Att’y
Gen., 712 F.3d 517, 534-35 (11th Cir. 2013) [no prejudice where evidence sought in continuance for
CAT claim would not have called into question IJ’s factual findings]; Gomez-Medina v. Holder, 687 F.3d
33 (1st Cir. 2012) [denied continuance and dismissed applicant’s asylum, withholding and CAT claims
as abandoned for failure to obtain biometrics and comply with other court orders]; Singh v. Holder, 638
F.3d 1264, 1273-74 (9th Cir. 2011) [continuance denied to permit father’s testimony to corroborate
asylum claim where it was uncertain father could testify due to competency issues]; Hernandez v.
Holder, 606 F.3d 900, 903 (8th Cir. 2010) [jurisdiction but rejected claim for continuance to re-paper];
Juarez v. Holder, 599 F.3d 560 (7th Cir. 2010) [upheld dismissal for abandonment where petitioners
asked for continuance to obtain biometrics after filing applications 14 months out-of-time]; Amouri v.
Holder, 572 F.3d 29, 35–37 (1st Cir. 2009) [no due process violation when IJ refused to grant
continuance because there was no prejudice]; Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008) [no
jurisdiction to review denial of continuance to file for AOS based upon marriage where IJ would deny
AOS as matter of discretion because of previous fraud and failure to provide any documentary
evidence to support I-130]; Subhan distinguished]; Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246–
47 (9th Cir. 2008) [denial of second request for continuance based upon derivative status in pending
LC was not an abuse of discretion]; Singh v. DHS, 526 F.3d 72, 80–81 (2d Cir. 2008) [continuance
denied to pursue FOIA where petitioner entered U.S. under false name and discarded passport before
entry]; Mendez-Mendez v. Mukasey, 525 F.3d 828, 835 (9th Cir. 2008) [no due process violation where
IJ advanced hearing and petitioner, who changed lawyers, failed to file application for relief within 3
months]; Singh v. DHS, 517 F.3d 638, 646–47 (2d Cir. 2008) [upholding denial where petitioner sought
continuance to obtain prior entry records to prove 7 years of residency for cancellation and 212(h)
where petitioner admitted entering on fraudulent documents]; Elbahja v. Keisler, 505 F.3d 125 (2d Cir.
2007) [no abuse of discretion in denying continuance pending approval of LC]; Lendo v. Gonzales, 493
F.3d 439 (4th Cir. 2007) [respondent’s rights were not violated when IJ refused to continue case
pending wife’s LC]; Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1280–82 (11th Cir. 2007) [no prejudice in
IJ’s refusal to continue and to change venue in NACARA waiver case]; Feliz v. Gonzales, 487 F.3d 71
(1st Cir. 2007) [substantial evidence supported IJ denial of continuance where respondent never
requested continuance, case had previously been continued and no indication that respondent’s wife
would appear at next hearing]; Alsamhouri v. Gonzales, 484 F.3d 117, 122, 124 (1st Cir. 2007)
[continuance denied for new counsel to file asylum application where respondent given several months
warning by former counsel regarding filing]; Berri v. Gonzales, 468 F.3d 390, 394–95 (6th Cir. 2006)
[continuance properly denied where motion was filed late and respondent sought continuance for new
counsel one week before the final hearing that had been rescheduled several times over 5 years];
Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362–67 (11th Cir. 2006) [no abuse of discretion or due
process or equal protection violation in denying a continuance to permit approval of LC for INA §245(i)
because no visa was immediately available and because AOS is discretionary]; Khan v. U.S. Att’y
Gen., 448 F.3d 226, 233–36 (3d Cir. 2006) Page 544 [IJ did not abuse discretion by denying
continuance where wife’s LC was pending and a visa was not immediately available]; Ahmed v.
Gonzales, 447 F.3d 433, 439–40 (5th Cir. 2006) [following Zafar and finding no statutory, due process
or equal protection violation in denying continuance where LC was filed but no visa immediately
available]; Sanusi v. Gonzales, 445 F.3d 193, 199–200 (2d Cir. 2006) [IJ did not abuse discretion in
refusing to grant a third continuance for respondent to seek medical records to support CAT claim];
Pede v. Gonzales, 442 F.3d 570 (7th Cir. 2006) [distinguishing Subhan and Benslimane where IJ
denied continuance because of the ultimate hopelessness of AOS]; Ali v. Gonzales, 440 F.3d 678,
680–81 (5th Cir. 2006) [no abuse of discretion where IJ denied 8th continuance where respondent for
AOS failed to provide proof that LC was filed before Apr. 30, 2001 making him eligible under §245(i)];
Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006) [no abuse of discretion in denying
continuance given the length of the previous continuance and the fact that respondent had prior
criminal violations]; Jean v. Gonzales, 435 F.3d 475, 483–84 (4th Cir. 2006) [no due process violation
to deny pro se respondent a continuance to obtain a lawyer where she had already virtually completed
formal testimony and submitted documentary evidence and had been given a one-year continuance to
show rehabilitation during which time her attorney withdrew]; Ramchandani v. Gonzales, 434 F.3d 337,
338–40 (5th Cir. 2005) [distinguishing Subhan and upholding denial of continuance where respondent
failed to provide documentation that LC had been filed prior to Apr. 30, 2001]; Salkeld v. Gonzales, 420
F.3d 804, 809–10 (8th Cir. 2005) [where counsel asked for continuance to withdraw due to rift with
client, no violation to deny motion when it was not made in advance and the hearing had been
scheduled for 4 hours one year in advance]; Hasanaj v. Ashcroft, 385 F.3d 780, 784–85 (7th Cir. 2004)
[no due process violation in denying continuance on asylum case that was scheduled 6 months in
advance and no hearing was available for an additional 6 months]; Kuschchak v. Ashcroft, 366 F.3d
597 (7th Cir. 2004) [IJ did not violate due process in refusing to grant continuance where lawyer asked
for expedited hearing on lottery AOS and IJ insisted that he also proceed on asylum claim]; Al Khouri
v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004) [no due process violation in denying continuance for new
counsel where previous counsel gave respondent 6-month notice before withdrawing]; Ponce-Leiva v.
Ashcroft, 331 F.3d 369, 374–77 (3d Cir. 2003) [no abuse of discretion in denying asylum seeker’s
lawyer a last minute continuance where hearing set 8 months in advance and counsel did not allege
emergency]; Ambati v. Reno, 233 F.3d 1054, 1061–62 (7th Cir. 2000) [due process not violated to deny
continuance where lawyer entered case 2 weeks before asylum hearing but where client was given 7
months continuance and did not show prejudice]; Michel v. INS, 206 F.3d 253, 258–59 (2d Cir. 2000)
[no error for judge to deny continuance where hearing was going badly and respondent wanted to
rethink decision not to have a lawyer]; Tavares v. Ashcroft, 371 F.Supp.2d 61, 66–68 (D.P.R. 2005)
[granting several continuances to prepare for §212(c) hearing did not violate due process]; U.S. v.
Meraz-Vargas, 35 F.Supp.2d 1272 (D. Kansas 1998) [granting 2 continuances was reasonable]; Molina
v. INS, 981 F.2d 14, 16 (1st Cir. 1992) [IJ has broad legal power to decide continuance]; Matter of
Rivera, 19 I&N Dec. 688 (BIA 1988) [unless continuance or change of venue granted, respondent must
appear at hearing; in absentia order upheld]; Castaneda-Suarez v. INS, 993 F.2d 142 (7th Cir. 1993)
[upholding denial of continuance to file INA §212(c) application where deadline had originally been
missed].
(2) Where prima facie approvable visa petition/AOS are filed, “discretion should be favorably exercised.”
Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009). The Board has set forth criteria to consider when
deciding a continuance based upon the opportunity to apply for AOS due to a pending visa petition:
“(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable;
(3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s
application for adjustment of status merits a favorable exercise of discretion; and (5) the reason for the
continuance and other procedural factors.… [T]hese factors are “illustrative, not exhaustive.… [T]he
focus of the inquiry should be the apparent ultimate likelihood of success on the adjustment of status.”
Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009). Accord Matter of Rajah, 25 I&N Dec. 127, 135–37
(BIA 2009) [applying the Hashmi criteria to an I-140 that is prima facie approvable with AOS
application but finding that the pendency of an LC “generally” would Page 545 be insufficient to grant a
continuance]. The IJ/BIA may not consider the availability of a visa as the sole factor. Ferreira v. U.S.
Att’y Gen., 714F.3d 1240 (11th Cir. 2013) [BIA’s consideration solely of availability of visa where priority
date was 6 years away, was error because it failed to consider all other factors under Matter of Rajah
and Matter of Hashmi]; Simon v. Holder, 654 F.3d 440 (3d Cir. 2011) [reversing denial of motion to
reconsider where IJ/BIA failed to consider factors other than immediate availability of visa]. The IJ
cannot deny the continuance simply because another agency (USCIS) would determine the AOS and
not the IJ. Freire v. Holder, 647 F.3d 67 (2d Cir. 2011) [in context of AOS before USCIS where arriving
alien sought continuance of removal proceeding].The IJ/BIA cannot deny a continuance solely
because the petition has not been approved and the court must manage its docket. Matter of Hashmi,
24 I&N Dec. 785, 793–94 (BIA 2009) [IJ’s case completion goals is not a proper factor in deciding a
continuance request]; Flores v. Holder, 779 F.3d 159, 164 (2d Cir. 2015) [IJ erred in denying
continuance because I-130 had not been adjudicated and under the mistaken belief that respondent
was ineligible for a INA §212(h) waiver]; Aimin Yang v. Holder, 760 F.3d 660 (7th Cir. 2014) [reversed
IJ denial of continuance for failure to follow Hashmi factors where I-130 was in limbo after remand of
denial by BIA to USCIS due to alleged 204(c)]; Malilia v. Holder, 632 F.3d 598, 604-07 (9th Cir. 2011)
[followed Hashmi and found IJ erred in not granting continuance awaiting I-130 approval]; Wu v.
Holder, 571 F.3d 467 (5th Cir. 2009) [IJ erred in not granting 3d continuance awaiting adjudication of I-
130 petition for IR]; Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) [IJ abused discretion in not
granting a continuance while a denied I-140 was on appeal to AAO]; Masih v. Mukasey, 536 F.3d 370
(5th Cir. 2008) [BIA abused its discretion for failing to grant continuance under OI 245.4(a)(6) and
Matter of Ho, 15 I&N Dec. 692 (BIA 1976) where AOS was properly filed but employment-based visa
numbers retrogressed]; Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008) [IJ and BIA erred in not granting
continuance to await I-130 approval where applicant could have applied for AOS before USCIS];
Hashmi v. U.S. Att’y Gen., 531 F.3d 256, 260–62 (3d Cir. 2008) [where petitioner was eligible for AOS
based on wife’s pending I-130, case completion goals cannot be a reasoned basis for denying a
continuance]; Haswanee v. U.S. Att’y Gen., 471 F.3d 1212 (11th Cir. 2006) [where LC was approved, I-
140 filed, and visa immediately available, but no I-485 filed, it was an abuse of discretion to deny
continuance but not a violation of equal protection or due process]; Ahmed v. Gonzales, 465 F.3d 806
(7th Cir. 2006) [IJ erred in not granting continuance to §245(i) eligible respondent with approved 4th
preference petition who sought continuance to file LC to speed up process]; Merchant v. U.S. Att’y
Gen., 461 F.3d 1375 (11th Cir. 2006) [where LC was approved and respondent filed I-140 and I-485
with DHS under §245(i) it was an abuse of discretion by IJ to deny a continuance. Bull supported and
Zafar distinguished]; Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005) [IJ made legal error in
denying continuance where respondent had filed I-130 and I-485 as part of marriage based AOS with
USCIS]; Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) [IJ’s denial of a continuance to finalize LC
without a reason consistent with §245(i) violated that statute]; Bull v. INS, 790 F.2d 869 (11th Cir.
1986); Matter of Velarde-Pacheco, 23 I&N Dec. 253 (BIA 2002) [modified Matter of Arthur, 20 I&N Dec.
475 (BIA 1992) and Matter of H-A-, 22 I&N Dec. 728 (BIA 1999), to allow for motion to reopen where
the I-485/I-130 are filed within 90 days, is not numerically barred, is not barred by Matter of Shaar or
any other procedural ground, presents clear and convincing evidence that the marriage is bona fide,
and the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur];
Matter of Lamus, 25 I&N Dec. 61 (BIA 2009) [Board clarified the last factor in Velarde-Pacheco, finding
it did not give the government an automatic “veto” over the motion based solely on its opposition and
the IJ is required to exercise discretion to determine whether the government’s argument is persuasive
and should prevail]; Matter of Garcia, 16 I&N Dec. 653, 656 (BIA 1978); Ssali v. Gonzales, 424 F.3d
556, 562–64 (7th Cir. 2005) [vacating BIA’s denial of motion to reopen for marriage AOS and criticizing
government’s analysis of Matter of Arthur]; Singh v. Gonzales, 404 F.3d 1024, 1027–29 (7th Cir. 2005)
[where I130 had been approved, BIA’s reliance on Velarde-Pacheco to deny motion to reconsider for
AOS was error because Velarde-Pacheco involved an unadjudicated I-130; however error was
harmless]; Singh v. Quarantillo, 92 F.Supp.2d 386 (D.N.J. 2000) [releasing applicant, tolling VD until
INS approved I-130 petition that had Page 546 been pending for 2 years, and adopting dissent in
Matter of H-A-]. See also Dawoud v. Holder, 561 F.3d 31, 33 n.1 (1st Cir. 2009) [citing language from
the Second Circuit in Sheng Gao Ni v. BIA, 520 F.3d 125, 131 n.4 (2d Cir. 2008) that “it is a matter of
long-standing and express BIA policy that, as a general matter, an alien is entitled to a continuance of
removal proceedings against him while a ‘prima facie approvable’ I-130 immigrant visa petition is
pending in front of the District Director”]; Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008) [remanding for
BIA to set parameters for continuances where LC is pending].
But see Mogeni v. Holder, 779 F.3d 847 (8th Cir. 2015) [IJ could consider the likelihood of the approval
of the I-130 and where respondent sought 13th continuance and had a potential 204(c) marriage fraud
problem, it was not an abuse of discretion to deny continuance]; Souley v. Holder, 779 F.3d 720, 723-
24 (7th Cir. 2015) [where second I-130 had not yet been filed and first I-130 had been denied, IJ did
not abuse his discretion in considering likelihood of I-130 approval when denying continuance]; Sheikh
v. Holder, 696 F.3d 147 (1st Cir. 2012) [not an abuse of discretion to deny continuance based upon
belief that approved I-140 could be used to AOS only if immigration reform law is passed]; Luevano v.
Holder, 660 F.3d 1207, 1213-15 (10th Cir. 2011) [not an abuse of discretion for IJ to decline to continue
a case until applicant can apply for AOS when priority date was seven years away]; Kwak v. Holder,
607 F.3d 1140 (6th Cir. 2010) [not abuse of discretion where request was based upon awaiting AAO
decision from denied I-601 waiver]; Thimran v. Holder, 599 F.3d 841 (8th Cir. 2010) [not error for IJ to
deny continuance after second I-130 was denied]; Olveira v. Holder, 568 F.3d 275 (1st Cir. 2009) [no
abuse of discretion to deny motion to reopen where petitioner had approved LC and I-140 but priority
date was years away]; Chacku v. U.S. Att’y Gen., 555 F.3d 1281 (11th Cir. 2008) [no abuse to deny
continuance for I-140 petitioner and AOS applicant where immigrant visa was not available when he
filed]; Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008) [no jurisdiction to review denial of continuance to
file for marriage-based AOS where IJ would deny AOS as matter of discretion because of previous
fraud and failure to provide documentary evidence to support the I-130; Subhan distinguished];
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246–47 (9th Cir. 2008) [denial of second request for
continuance based upon derivative status in pending LC was not an abuse]; Ilic-Lee v. Mukasey, 507
F.3d 1044, 1047–48 (6th Cir. 2007) [no abuse in denial of continuance to allow USCIS to decide
motion to reopen I-130 that had been pending 14 months]; Elbahja v. Keisler, 505 F.3d 125 (2d Cir.
2007) [IJ did not abuse discretion in denying continuance pending approval of LC]; Pedreros v. Keisler,
503 F.3d 162 (2d Cir. 2007) [IJ did not err in denying continuance where I-130 had been denied and
was on appeal to BIA and no argument or evidence was advanced addressing DD’s error]; Vargas-
Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007) [no abuse where respondent was married
for 7 years and waited until final hearing 5 years after wife became a USC to ask for a continuance to
file 1-130]; Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007) [respondent’s rights were not violated
when IJ refused to continue case pending wife’s LC]; Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362–67
(11th Cir. 2006) [no abuse of discretion or due process or equal protection violation in denying a
continuance to permit approval of LC for INA §245(i) eligibility because no visa was immediately
available and AOS is discretionary]; Khan v. U.S. Att’y Gen., 448 F.3d 226, 233–36 (3d Cir. 2006) [IJ
did not abuse discretion by denying continuance where wife’s LC was pending and a visa was not
immediately available]; Ahmed v. Gonzales, 447 F.3d 433, 439–40 (5th Cir. 2006) [following Zafar and
finding no statutory, due process or equal protection violation in denying continuance where LC was
filed but no visa immediately available]; Morgan v. Gonzales, 445 F.3d 549 (2d Cir. 2006) [IJ did not
abuse discretion or deny due process in denying continuance to permit the adjudication of I-130
stemming from a marriage that had previously been determined to lack bona fides]; Pede v. Gonzales,
442 F.3d 570 (7th Cir. 2006) [distinguishing Subhan and Benslimane where denied continuance
because of the ultimate hopelessness of AOS]; Ali v. Gonzales, 440 F.3d 678, 680–81 (5th Cir. 2006)
[no abuse of discretion in denial of 8th continuance where respondent failed to provide proof that LC
was filed before Apr. 30, 2001 making him eligible for §245(i)]; Abu-Khaliel v. Gonzales, 436 F.3d 627,
634 (6th Cir. 2006)[no abuse of discretion in denying continuance where I-130 filed by second wife
who married respondent 5 days before the hearing given the Page 547 length of the previous
continuance and the fact that respondent had prior criminal violations].
(a) USCIS Action When I-130 Is Pending—USCIS has issued a policy memo stating in will endeavor
to complete action on I-130s for detained persons in removal proceedings within 30 days and for
nondetained persons in removal proceedings within 45 days. Policy Memo, USCIS, PM-602-0029,
Guidance for Coordinating the Adjudication of Applications and Petitions Involving Individuals in
Removal Proceedings, (Feb. 4, 2011), AILA Doc. No. 11050264; AFM 10.3
(b) Distinguish Continuance for LC Approval vs. Petition for Adjustment
Compare: Matter of Rajah, 25 I&N Dec. 127, 135–37 (BIA 2009) [applying the Hashmi criteria to an
I-140 that is prima facie approvable with AOS application but finding that the pendency of an LC
“generally” would be insufficient to grant a continuance]; Calma v. Holder, 663 F.3d 868, 878-79 (7th
Cir. 2011) [no abuse of discretion to deny a continuance where the I-130 had been denied on
appeal in one case and where the other case was based upon the speculation that the wife would
seek naturalization]; Luevano v. Holder, 660 F.3d 1207, 1213-15 (10th Cir. 2011) [it was not an
abuse of discretion for IJ to decline to continue a case until applicant can apply for AOS when
priority date was seven years away]; Olveira v. Holder, 568 F.3d 275 (1st Cir. 2009) [no abuse of
discretion to deny motion to reopen where petitioner had an approved LC and I-140 but priority date
was years away]; Chacku v. U.S. Att’y Gen., 555 F.3d 1281 (11th Cir. 2008) [no abuse to deny
continuance for I-140 petitioner and AOS applicant where immigrant visa was not available when
he filed]; Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008) [no jurisdiction to review denial of
continuance to file for AOS based upon marriage where IJ would deny AOS as matter of discretion
because of previous fraud and failure to provide documentary evidence to support the I-130
petition; Subhan distinguished]; Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246–47 (9th Cir. 2008)
[denial of 2d request for continuance based upon derivative status in pending LC was not an abuse
of discretion]; Elbahja v. Keisler, 505 F.3d 125 (2d Cir. 2007) [no abuse of discretion in denying
continuance pending approval of LC]; Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007)
[respondent’s rights were not violated when IJ refused to continue case pending wife’s LC]; Zafar v.
U.S. Att’y Gen., 461 F.3d 1357, 1362–67 (11th Cir. 2006) [no abuse of discretion or due process or
equal protection violation in denying a continuance to permit approval of LC for §245(i) because no
visa was immediately available and AOS is discretionary]; Khan v. U.S. Att’y Gen., 448 F.3d 226,
233–36 (3d Cir. 2006) [no abuse of discretion in denying continuance where wife’s LC was pending
and a visa was not immediately available]; Ahmed v. Gonzales, 447 F.3d 433, 439–40 (5th Cir.
2006) [following Zafar and finding no statutory, due process or equal protection violation in denying
continuance where LC was filed but no visa immediately available]; Ali v. Gonzales, 440 F.3d 678,
680–81 (5th Cir. 2006) [no abuse of discretion where IJ denied 8th continuance where respondent
failed to provide proof that his LC was filed before Apr. 30, 2001 making him eligible for §245(i)];
Ramchandani v. Gonzales, 434 F.3d 337, 338–40 (5th Cir. 2005) [distinguishing Subhan and
upholding denial of continuance where respondent failed to provide documentation that LC had
been filed prior to Apr. 30, 2001]
With: Ferreira v. U.S. Att’y Gen., 714F.3d 1240 (11th Cir. 2013) [BIA’s consideration solely of
availability of visa where priority date was 6 years away, was error because it failed to consider all
other factors under Matter of Rajah and Matter of Hashmi]; Ahmed v. Holder, 569 F.3d 1009 (9th
Cir. 2009) [where LC approved and I-140 denied, IJ abused his discretion by not granting a
continuance while the denied I-140 was on appeal to the AAO]; Masih v. Mukasey, 536 F.3d 370
(5th Cir. 2008) [BIA abused its discretion for failing to grant continuance under OI 245.4(a)(6) and
Matter of Ho, 15 I&N Dec. 692 (BIA 1976) where AOS was properly filed but employment-based
visa numbers retrogressed]; Haswanee v. U.S. Att’y Gen., 471 F.3d 1212 (11th Cir. 2006) [where
LC was approved, I-140 filed, and visa immediately Page 548 available, but no I-485 filed, it was an
abuse of discretion to deny continuance but not a violation of equal protection or due process];
Ahmed v. Gonzales, 465 F.3d 806 (7th Cir. 2006) [IJ erred in not granting continuance to §245(i)
eligible respondent with approved 4th preference petition who sought continuance to file LC to
speed up process]; Merchant v. U.S. Att’y Gen., 461 F.3d 1375 (11th Cir. 2006) [where LC was
approved and respondent filed I-140 and I-485 with DHS pursuant to INA §245(i) it was an abuse of
discretion by IJ to deny a continuance. Bull supported and Zafar distinguished]; Subhan v. Ashcroft,
383 F.3d 591 (7th Cir. 2004) [IJ’s denial of a continuance to finalize LC without a reason consistent
with §245(i) violated that statute]; Bull v. INS, 790 F.2d 869 (11th Cir. 1986) [where approval of I-130
would make visa immediately available IJ abused discretion in not continuing], and Benslimane v.
Gonzales, 430 F.3d 828 (7th Cir. 2005) [IJ made legal error in denying continuance where
respondent had filed I-130 and I-485 as part of marriage based AOS but had not filed AOS with IJ].
(c) Deferral of Review of Continuance—At least one court has determined that it will defer a decision
on whether a denial of a continuance was an abuse of discretion until it is certain respondent
qualified for INA §245(i). Butt v. Gonzales, 500 F.3d 130 (2d Cir. 2007) [remanding to BIA to answer
questions regarding respondent’s eligibility for §245(i) before it decides whether IJ abused its
discretion]. See also Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008) [remanding case so that BIA
may determine permissible range under 245(1) for granting continuances].
(3) U Visa Continuance—The BIA has set forth criteria to determine when good cause exists to continue
removal proceedings to await an adjudication of a pending U petition. In Matter of Sanchez Sosa, 25
I&N Dec. 807, 813-15 (BIA 2012) the Board first noted that when DHS does not oppose a continuance
“the proceedings ordinarily should be continued … in the absence of unusual, clearly identified, and
supported reasons for not doing so.” [citing to standard in Matter of Hashmi]. Where DHS does oppose
the continuance the IJ should focus on the “likelihood of success” that the U will be granted. The IJ
should determine whether the applicant has a prima facie case for the U visa, by considering whether
the applicant will show “substantial physical or mental abuse” as a victim. The factors to be considered
are “the nature of the injury inflicted, the duration of the harm, and the severity of the perpetrator’s
conduct” and documentary evidence such as “medical reports or psychological evaluations” that would
be submitted to DHS. The applicant for a continuance must also establish that the underlying criminal
activity enumerated in INA §101(a)(15)(U)(iii) or “similar activity” occurred and that the applicant is not
himself culpable for the crime. The applicant must also obtain an law enforcement certification (LEC)
or provide “other circumstances that the Immigration Judge finds compelling.” However, even if the
applicant has an LEC, the IJ may still inquire into whether there is substantial physical or mental abuse
and deny the application on that basis. If the applicant is inadmissible she must file a waiver on Form I-
192 and the IJ “should assess the likelihood that the USCIS will exercise its discretion favorably” on
the waiver. The applicant should submit Form I-918 and Supplement B if they have been filed along
with copies of the supporting documents. Having provided all of this, the IJ may still deny the
continuance by considering “the length of time the application has been pending [with DHS], the
number of prior continuances that the court has provided, and additional relevant considerations.”
However, as a general rule, “there is a rebuttable presumption that the [applicant] who has filed a
prima facie approvable application with the USCIS will warrant a favorable exercise of discretion for a
continuance for a reasonable period of time.”
(4) Denial of continuance to obtain counsel violates due process or the INA. Gjeci v. Gonzales, 451 F.3d
416 (7th Cir. 2006) [IJ’s refusal to grant one continuance after respondent’s counsel withdrew denied
respondent due process, where it was clear that respondent did not understand the difficulties he was
facing in regard to documents, including those in the possession of his former counsel]; Biwot v.
Gonzales, 403 F.3d 1094, 1098–1101 (9th Cir. 2005)[where detained respondent given only 5 working
days to find counsel and then denied continuance, due process right to counsel was violated]; Reyes-
Palacios v. INS, 836 F.2d 1154 (9th Cir. 1988); Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985);
Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975) Page 549 [a 2-day continuance to obtain
counsel is insufficient]; Jiang v. Houseman, 904 F.Supp. 971, 979 (D. Minn. 1995) [reversing exclusion
order where applicant given inadequate opportunity to find counsel]. But see Njoroge v. Holder, 753
F.3d 809 (8th Cir. 2014) [upheld IJ’s denial of continuance where respondent asked court to call
counsel who did not appear on grounds of no prejudice]; Jean v. Gonzales, 435 F.3d 475, 483–84 (4th
Cir. 2006) [not a violation of due process to deny pro se respondent a continuance to obtain a lawyer
where her formal testimony and documentary evidence was virtually completed and she had been
given a one-year continuance to show rehabilitation during which time her attorney withdrew].
Denial also violates respondent’s statutory and regulatory right to counsel. INA §§240(b)(4)(A), 292
and 8 CFR §§1003.16(b), 1240.3, 1240.11(c)(1)(iii); Matter of C-B-, 25 I&N Dec. 888, 889-90 (BIA
2012) [“In order to meaningfully effectuate the statutory and regulatory privilege of legal representation
where it has not been expressly waived, the Immigration Judge must grant a reasonable and realistic
period of time to provide a fair opportunity for a respondent to seek, speak with, and retain counsel”].
Administrative policy provides that “absent good cause shown, no more than two continuances should
be granted” to permit respondent to obtain counsel. Memo, O’Leary, Chief Immigration Judge, OPPM
13-01, Continuances and Administrative Closure (Mar. 7, 2013) at 2-3 [citing Sourcebook], AILA Doc.
No. 13031143.
(5) Impact of Post-Conviction Mitigation—Prior to enactment of the statutory definition of conviction in

1996, the Service would defer a deportation hearing until a party could obtain an expungement. Matter
of Ozkok, 19 I&N Dec. 546 (BIA 1988); Matter of Tinajero, 17 I&N Dec. 424 (BIA 1980). But see Matter
of Gabryelsky, 20 I&N Dec. 750 (BIA 1993) [pendency of collateral attack on conviction not basis to
stay deportation proceeding]. However, this policy is now restricted to expungements under federal
law, because state expungements no longer have any effect. Matter of Roldan, 22 I&N Dec. 512 (BIA
1999). Roldan was subsequently vacated sub nom in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.
2000). However, the BIA reaffirmed Roldan in Matter of Salazar, 23 I&N Dec. 223 (BIA 2002) and the
Ninth Circuit en banc overruled Lujan-Armendariz in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011) (en banc) [an expunged state court conviction for simple possession of a controlled substance is
a conviction for immigration purposes and equal protection does not require it be treated the same as
the FFOA for convictions entered after July 13, 2011]. But see Jimenez-Guzman v. Holder, 642 F.3d
1294, 1297 (10th Cir. 2011) [post-Kucana court held that IJ did not err in refusing to give another, after
several, continuances to pursue post-conviction relief under Padilla]. See also Rachak v. U.S. Att’y
Gen. 734 F.3d 214, 216-18 (3d Cir. 2013) [no jurisdiction post-Kucana to review IJ’s denial of
continuance during appeal of petition to vacate conviction because decision is discretionary and INA
§242(a)(2)(C) bars review].
(6) A conditional resident by marriage should be granted a continuance to file an application for a waiver
under INA §216(c)(4) if prima facie eligible. Matter of Mendes, 20 I&N Dec. 833 (BIA 1994).
(7) IJ not required to automatically grant continuance when §245(i) will allow AOS in the future where
person’s return would subject him to 10-year bar. Letter, Creppy, Chief IJ, EOIR (Sept. 24, 1999),
reprinted in 76 No. 40 Interpreter Releases 152, 1533–35 (Oct. 18, 1999). However, it is Service policy
not to give priority to deportation proceedings against a person who is a grandfathered beneficiary.
Memo, Bach, Exec. Assoc. Comm. (Apr. 14, 1999), reprinted in 76 No. 16 Interpreter Releases 621,
652, 658 (Apr. 26, 1999). See in this section “Distinguish Continuance for LC Approval vs. Petition for
Adjustment,” ¶ (b) (p.546), supra.
(8) IJ cannot continue hearing to allow respondent more time to establish rehabilitation for relief. Matter
of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992) [reversing IJ decision to grant one-year extension to
demonstrate rehabilitation for former INA §212(c) relief].
(9) A denial of a continuance where respondent had to assert Fifth Amendment because of parallel
criminal proceeding was upheld by one court. Witter v. INS, 113 F.3d 549, 555–56 (5th Cir. 1997)
[difficult litigation choices do not infringe on Fifth Amendment]. Page 550
(10) Judicial Review—The Supreme Court’s decision in Kucana v. Holder, 558 U.S. 233 (2010)
seemingly laid to rest the claim that a regulation can bar federal jurisdiction. The Court in Kucana
found that jurisdiction cannot be barred by a DOJ regulation in regard to motions to reopen and it
therefore cast doubt on any ruling denying jurisdiction, where regulatory issues, such as continuances,
are at issue. Post-Kucana, the circuit courts have acquiesced. See also Mata v. Lynch, 576 U.S. __,
135 S.Ct. 2150 (2015) [circuit courts have jurisdiction over motions to reopen even if the underlying
matter may in the agency or the court’s view not be justiciable]. See e.g., Jimenez-Guzman v. Holder,
642 F.3d 1294, 1297 (10th Cir. 2011) [post-Kucana court has jurisdiction but denied on merits];
Hernandez v. Holder, 606 F.3d 900, 903 (8th Cir. 2010) [jurisdiction but rejected claim for continuance
to re-paper]; Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1360–62 (11th Cir. 2006) [review of the denial of a
continuance is not precluded by INA §242(a)(2)(B)(ii) because that section applies only to statutes and
continuances are governed by regulation]; Khan v. U.S. Att’y Gen., 448 F.3d 226, 229–33 (3d Cir.
2006) [same]; Ahmed v. Gonzales, 447 F.3d 433, 436–37 (5th Cir. 2006) [same]; Sanusi v. Gonzales,
445 F.3d 193, 198–99 (2d Cir. 2006) [continuances are not even mentioned in the subchapter referred
to (subchapter II of Chapter 12) by 242(a)(2)(B)(ii)]; Abu-Khaliel v. Gonzales, 436 F.3d 627, 631–34
(6th Cir. 2006)[INA §242(a)(2)(B)(ii) does not bar jurisdiction over the IJ’s denial of a continuance
because that section refers to matters in the AG’s discretion and continuances are part of the removal
hearing which under INA §240(a)(1) are conducted by IJs]. Some courts, however, have looked for
other jurisdictional grounds to deny a motion to continue. See e.g., Rachak v. U.S. Att’y Gen. 734 F.3d
214, 216-18 (3d Cir. 2013) [no jurisdiction post-Kucana to review IJ’s denial of continuance during
appeal of petition to vacate conviction because decision is discretionary and INA §242(a)(2)(C) bars
review where there is a criminal conviction]; Moral-Salazar v. Holder, 708 F.3d 957 (7th Cir. 2013) [no
jurisdiction to review denial of continuance where respondent committed aggravated felony and court
lacked jurisdiction under INA §242(a)(2)(C)]; Pascual v. Holder, 707 F.3d 403, 405 (2d Cir. 2013)
[same]; Pawlowska v. Holder, 623 F.3d 1138 (7th Cir. 2010) [no jurisdiction to review denial of
continuance to permit AOS because INA §242(a)(2)(B)(i) precludes jurisdiction over AOS]; Juarez v.
Holder, 599 F.3d 560, 564–65 and n.4 (7th Cir. 2010) [finding jurisdiction but noting that to the extent
its decisions on jurisdiction relied on INA §242(a)(2)(B)(i) as in Ali and other cases, and not INA
§242(a)(2)(B)(ii), as did the Court in Kucana, those rulings still precluded jurisdiction[;Ogunfuye v.
Holder, 610 F.3d 303, 307 (5th Cir. 2010) [holding that court is barred from addressing denial of
continuance on abuse of discretion grounds where respondent is aggravated felon and therefore INA
§242(a)(2)(C) applies]. But see Garcia v. Lynch, 798 F.3d 876 (9th Cir. 2015) [rejecting INA §242(a)(2)
(C) as a basis to deny review of a continuance because that section only bars review where the matter
is based upon the “commission or admission of a crime” and the continuance raises other issues]. See
also Calma v. Holder, 663 F.3d 868, 872-78 (7th Cir. 2011) the Seventh Circuit took a more nuanced
approach and determined that notwithstanding INA §242(a)(2)(B)(i) the court would have jurisdiction to
review a denial of a continuance where the challenge does “not implicate the merits of a final
unreviewable order but instead merely defer the resolution of the merits so that the process as a whole
can be completed with integrity.” Id. at 878. Courts can always review a constitutional claim made
regarding the denial of a continuance. Salkeld v. Gonzales, 420 F.3d 804, 809–10 (8th Cir. 2005) [pre-
Kucana although the court believe it was barred under INA §242(a)(2)(B)(ii), it still could review a
constitutional claim pursuant to the REAL ID Act regarding the denial of a continuance]. Courts may
also defer a decision on whether the movant qualified for relief before it decides the IJ abused his
discretion in failing to grant a continuance. Butt v. Gonzales, 500 F.3d 130 (2d Cir. 2007) [remanding to
BIA to answer questions regarding respondent’s eligibility for §245(i) before it decides whether IJ
abused discretion in denying continuance]. See also Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008)
[remanding case where continuance was denied awaiting LC approval so that BIA may determine the
contours of the permissible range for granting continuances in these circumstances].
5.h. Explanation of Rights; Apparent Eligibility—Under 8 CFR §1240.10(a)(1), the IJ must not only inform the
applicant of the right to counsel, but must ascertain on the record if counsel is desired. Matter of Michel,
21 I&N Dec. 1101 (BIA 1998) [reversing removal order where IJ never asked Page 551 respondent if he
wanted counsel]. Under 8 CFR §1240.10(a), a respondent must be informed of his rights, including right
to counsel, to free legal services, to present evidence, to cross-examine witnesses, and to appeal. Picca
v. Mukasey, 512 F.3d 75 (2d Cir. 2008) [IJ’s failure to advise respondent of a right to free legal services
and to provide him with a list of services requires reversal even if respondent had a lawyer at preliminary
hearings and even if DHS claims it provided a list to him because it is the IJ’s responsibility to inform and
the record indicates he never received a list]; Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000) [due process
violated where IJ inadequately explained hearing procedures, and failed to adequately advise respondent
of her various roles including the right to be a witness, whether or not she had an attorney and the right to
present testimony instead of merely being subject to examination. Analogized asylum hearing to
procedures in Social Security cases where respondent pro se]. Due process may be violated where IJ
fails to assist pro se applicant to develop his claim. Lacsina Pangilinan v. Holder, 568 F.3d 708 (9th Cir.
2009) [due process violated where IJ failed to assist pro se asylum applicant in developing case on the
record].
Apparent Eligibility—Pursuant to 8 CFR §1240.11(a) the IJ must notify the respondent of “all benefits
enumerated in this chapter,” Matter of Cordova, 22 I&N Dec. 966, 970 n.4 (BIA 1999), including all relief
available, particularly cancellation, adjustment and registry, if the respondent has “apparent eligibility” for
such relief. 8 CFR §1240.11(a)(2). Unlike the previous regulation, this requires advising the applicant of
both forms of VD. Cordova, supra. However, it may not extend to potential eligibility if certain facts, not
disclosed to the IJ are taken. U.S. v. Moriel-Luna, 585 F.3d 1191, 1196–99 (9th Cir. 2009) [failure to inform
applicant that he could have married his undisclosed fiancée or that his parents could naturalize thus
making him eligible to AOS does not violate the regulation]. “Apparent eligibility” arises “where the record
fairly reviewed by an individual who is intimately familiar with the immigration laws—as IJs no doubt are—
raises a reasonable possibility that the petitioner may be eligible for relief, the IJ must advise the alien of
the possibility and give him the opportunity to develop the issue.” Asani v. INS, 154 F.3d 719, 727–28 (7th
Cir. 1998) [IJ failed to advise as to suspension]. In Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) the BIA
reversed the IJ for: (1) failing to advise the applicant of asylum/withholding and CAT after the respondent
expressed a fear of returning to Guatemala; and (2) failing to notify respondent of post-completion VD
after the respondent said he wanted to appeal his case and therefore was no longer eligible for the
prehearing VD granted to him. See also Atunnise v. Mukasey, 523 F.3d 830, 838–39 (7th Cir. 2008) [K-3
eligible for an INA §212(d)(3)(A) waiver and IJ erred in not advising her of the right to apply]; Moran-
Enriquez v. INS, 884 F.2d 420 (9th Cir. 1989) [reversing deportation order where respondent apparently
eligible for §212(h) relief]; Duran v. INS, 756 F.2d 1338 (9th Cir. 1985) [test applied to former §243(h)];
U.S. v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) [IJ’s failure to advise of apparent eligibility for INA §212(h)
resulted in reversal of guilty plea for re-entering]; U.S. v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004)
[permitting withdrawal of plea before sentencing where defendant argued that intervening St. Cyr decision
was basis to dismiss indictment for illegal reentry because IJ failed to inform him of INA §212(c) relief
even though he informed him of cancellation but only if he did not commit aggravated felony]; U.S. v.
Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998) [failure to inform person married to USC of 212(h)
waiver “taints” hearing, although not prejudicial in this case]; U.S. v. Maldonado, 33 F.Supp.3d 1178, 1185-
90 (S.D. Cal. 2014) [granting motion to dismiss indictment for unlawful reentry because defendant, under
“apparently eligibility” doctrine was never informed of his right to apply for suspension of deportation]; U.S.
v. Andrade-Partida, 110 F.Supp.2d 1260 (N.D. Cal. 2000) [respondent never advised of INA §212(c)
relief]; Matter of Cordova, supra [reversing final order where IJ improperly told applicant he was ineligible
for VD because he lacked good moral character]; Matter of Ulloa, 22 I&N Dec. 725 (BIA 1999)
[respondent inadmissible as public charge had the right to be informed by IJ of a waiver under §213]. But
see Matter of R-S-H-, 23 I&N Dec. 629, 644 (BIA 2003) [failure of IJ to advise respondents as to
prehearing VD was not prejudicial because respondents provided no reason to believe they would have
waived their rights to other relief]; C.J.L.G. v. Sessions, 880 F.3d 1122, 1147-49 (9th Cir. 2018) [where
minor did not have state court order finding him dependent the IJ did not have an obligation to advise him
of SIJ status under the apparent eligibility regulation]; Alva-Arellano v. Lynch, 811 F.3d 1064 (8th Cir.
2016) [where respondent did not express fear and did not present any documents, IJ had no obligation to
inform respondent about asylum and refusal to reopen was warranted]; U.S. v. Valdez-Novoa, 780 F.3d
906, 912-21 (9th Cir. 2015) Page 552 [defendant not prejudiced under “apparent eligibility” doctrine where
he was ineligible for VD because he was convicted of an aggravated felony and therefore ineligible for
VD]; U.S. v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (en banc) [where applicant was not eligible for
INA §212(c) relief at the time of his deportation proceeding and would not be eligible for 8 months and a
change in the law, the IJ did not err under “apparent eligibility” in failing to inform him]; Valencia v.
Mukasey, 548 F.3d 1261 (9th Cir. 2008) [no due process violation to fail to inform respondent of asylum,
withholding and CAT where there was no plausible basis for such an application]; Mema v. Gonzales, 474
F.3d 412, 420–21 (7th Cir. 2007) [no due process violation for failing to inform respondent under
§1240.11(a)(2) of his right to withdraw his application for admission where there is no showing of
prejudice]; Bejko v. Gonzales, 468 F.3d 482, 487–88 (7th Cir. 2006) [same]; Bonhometre v. Gonzales, 414
F.3d 442, 448–50 (3d Cir. 2005) [no due process violation for failure to inform respondent of INA §§212(c),
212(h) and CAT because respondent was not eligible for §212(c)/212(h), and no evidence was presented
regarding CAT claim]; U.S. v. Aguirre-Tello, 353 F.3d 1199, 1204–05 (10th Cir. 2004) (en banc) [no
constitutional right to be informed of discretionary relief that might be available such as INA §212(c)]; U.S.
v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002) [failure to inform defendant of §212(c) relief does not rise to
the level of fundamental unfairness and does not affect the conviction because there is no liberty or
property interest in §212(c) relief].
5.i. Termination of proceedings—DHS cannot cancel the NTA once proceedings commence under 8 CFR
§§239.2(a), §1003.14, 1239.2(a) but it can seek to terminate if the NTA was improvidently issued. Matter
of Vizcarra-Delgadillo, 13 I&N Dec. 51 (BIA 1968).But decision of IJ to terminate at government’s request
may not be reviewable in appellate court because it is not a final order of removal. Aguilar-Aguilar v.
Napolitano, 700 F.3d 1238, 1243 (10th Cir. 2012) [IJ’s termination of proceedings so DHS could pursue
expedited proceeding under 8 USC §1228(b) is not a final order subject to appellate review].
6. Discovery
6.a. Generally—There are several mechanisms to obtain information from the government as addressed
below. However, where testimony or production of documents is sought from government employees, a
written statement detailing the information sought and the question areas that are the subject of the
inquiry should accompany any request. See 28 CFR §16.21 et seq., 6 CFR §§5.44-49 and 5 CFR
§§2417.101-401. Failure to comply with the regulations may be used as a basis to deny or even ignore
the request. U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); Cabral v. DOJ, 587 F.3d 13, 22–24 (1st Cir.
2009) [partial response to Touhy request upheld where there was no showing that refusal to release
additional information was unduly prejudicial]. But see Roy v. County of Los Angeles, No. CV 12-09012-
AB (FFMx), 2018 WL 914773, *11 (C.D. Cal. Feb. 7, 2018) [citing Exxon Shipping Co. v. Dep’t of Interior,
34 F.3d 774, 777 (9th Cir. 1994) the court noted that the Touhy regulation “is an internal federal agency
regulation” and the statutory basis for Touhy 5 USC §301 “does not create an independent privilege to
withhold government information or shield federal employees from valid subpoenas”].A party seeking
testimony from government agents may bring an action in district court to enforce a Touhy request. City of
Pembroke Pines v. ICE, 141 F.Supp.3d 1330 (S.D. Fla. 2015) [agency denial of a Touhy request is subject
to review under APA §706(2)(A) but court remanded case at government’s request for a better
administrative record]; Town of Southwest Ranches v. DHS, 2016 WL 4264049 (S.D. Fla. Aug. 8, 2016)
[affirming under Touhy regulations ICE’s refusal to permit its employee to be deposed].
6.b. Discovery Under Mandatory Access Law, INA §240(c)(2)(B), 8 USC §1229a(c)(2)(B)—In meeting a
respondent’s burden of proof in a removal proceeding, “the alien shall have access to the alien’s visa or
other entry document, if any, and any other records and documents, not considered by the Attorney
General to be confidential, pertaining to the alien’s admission or presence in the United States.” INA
§240(c)(2)(B); Gahagan v. USCIS, 111 F.Supp.3d 754, 757 (E.D. La. 2015) [recognizing the respondent’s
right under the Mandatory Access Law to his A-file/AOS application but finding under the circumstances
that the government’s search was adequate and their referral of a small number of documents for review
to ICE for a short period was reasonable]. Although DHS may not be required to provide the entire
administrative record Page 553 when a person seeks relief from removal during the course of an IJ
hearing, DHS may be required to produce the application that the person submitted originally to DHS
(TPS, AOS, joint petition to remove condition) that is now subject to de novo review by the IJ. Matter of
Henriquez Rivera, 25 I&N Dec. 575 (BIA 2011) [vacating the IJ’s decision mandating that DHS provide the
entire administrative record of the TPS denial to the court, but noting that the IJ has the authority to
require DHS to produce the TPS application filed by respondent].
(1) Alien (“A”) File—The alien file (or “A File”) is located in the Alien/File Central Index System which is a
centralized and consolidated electronic system of records through which these files are stored,
maintained, updated, tracked, and retrieved. Dent v. Holder, 627 F.3d 365, 371-76 (9th Cir. 2010)
[person in removal proceedings should “routinely” receive his A file pursuant to 8 USC §1229a(c)(2)(B)
because the statute requires the AG to produce to the respondent “any other records and documents,
not considered … to be confidential”]. Need not file FOIA to get the A-file if the person is in removal
proceedings. Id at 375.
6.c. FOIA (Freedom of Information Act)
8 CFR §103.42 referencing 6 CFR pt. 5; 81 FR 83625-43 (Nov. 22, 2016); 58 FR 31147–50 (June 1,
1993); 72 FR 9017-18 (Feb. 28, 2007); 76 FR 53764, 53771 (Aug. 29, 2011); 81 FR 83625 (Nov. 22,
2016); 82 FR 7666-80 (Jan. 23, 2017) (DOL); 9 FAM 603.2-3; Electronic Freedom of Information
Amendments of 1996, PL 104-231, 110 Stat. 3048 (1996); OPEN Government Act of 2007, PL 110-175,
121 Stat. 2524; FOIA Improvement Act of 2016, PL 114-185, 130 Stat. 538 (June 30, 2016).
(1) General Procedures—FOIA requires an agency to respond within 20 business days of a request by
either determining it will comply or notifying the requester of its determination and reasoning. 5 USC
§552(a)(6)(A)(i). Where there are “unusual circumstances” the Act allows an agency to extend the
deadline by 10 days. But agencies must act promptly. Prison Legal News v. DHS, 113 F.Supp.3d 1077,
1084-85 (W.D. Wash. 2015) [ICE’s conduct was egregious where plaintiff did not receive first
production of documents for 361 days after mailing its first request, seven months after mailing its
second request, and almost four months after filing suit]. If the agency does not meet the 20-day
deadline, a requester can immediately sue to obtain records. 5 USC §552(a)(6)(C). However, the 20
days only run if the agency has received a proper request and where the agency responds an
applicant must exhaust her administrative remedies by appealing the ruling administratively before
initiating litigation. Rosenberg v. ICE, 956 F.Supp.2d 32 (D.D.C. 2013) [summary judgment granted to
government where applicant failed to exhaust his administrative remedies and appealed denial of
expedited treatment of FOIA request but did not wait the 20 days before filing suit]; Perez-Rodriguez v.
DOJ, 888 F.Supp.2d 175, 182 (D.D.C. 2012) [granted summary judgment to government where
applicant incorrectly filed one FOIA request and failed to appeal another]. To exhaust, a party must
also pay all fees associated with the records request or take an appeal from the denial of a fee waiver.
Marino v. DOJ, 993 F.Supp.2d 14, 18-19 (D.D.C. 2014) [and cases cited therein]. The DHS
requirement, pursuant to 6 CFR §5.3(a)(4), that a consent form must be obtained prior to releasing
information about a third party (such as information in an “A-File”) has been found invalid by one court
as violative of the FOIA. Gonzales & Gonzales Bonds & Ins. Agency v. DHS, 913 F.Supp.2d 865, 876-
77 (N.D. Cal. 2012) [FOIA does not contain a precondition to release of information but rather narrowly
construed exemptions which may be asserted by the agency]. Requestors are given 90 days to appeal
administratively an adverse decision. 5 USC §552(a)(6)(A)(i)(III)(aa); 6 CFR §5.8. An applicant may
always ask for expedited treatment of her request. But failure to make such request and then to seek a
preliminary injunction in court may raise issues as to the urgency of the need for such an injunction.
Morales v. Sec. DOS, 220 F.Supp.3d 1, 4-5 (D.D.C. 2016) [denying a preliminary injunction and noting
that plaintiff having failed to seek expedited processing administratively was seeking a court order “to
help them jump [the] queue”]
(a) State FOIAs—Various states have their own FOIA laws. However, a state may bar out of state
residents for applying for them. See e.g., McBurney v. Young, 566 U.S. 221 (2013) [upheld state
FOIA award that barred persons who were notresidents of Virginia from obtain documents under
Virginia’s FOIA statute]. Page 554
(b) NARA Determinations—The National Archives and Records Administration publishes notices at
least once monthly of certain federal agencies requests for records disposition which means either
that record will be destroyed or kept in the National Archives. The public has a right to comment on
the records policy for the agency and they are given 30 days to comment. 79 FR 31143-44 (May
30, 2014).
(2) Procedures for Filing
(a) Online Filing—Many agencies now offer online requests. See http://www.FOIA.gov. DHS for all its
branches (ICE, CBP, USCIS) has launched an eFOIA mobile app that allows an applicant to submit
a request, check the status of the request, access content on the FOIA website and library, and
receive updates regarding stakeholder meetings, conference calls and recently published
documents, AILA Doc. No. 15070800(July 7, 2014), 15081300 (Aug. 13, 2015). DOJ has followed
in launching its online portal. http://www.foia.gov.
(b) DHS, Generally—81 FR 83625-43 (Nov. 22, 2016); 68 FR 4056 (Jan. 27, 2003); 6 CFR §§5.3-5.12
Utilize Form G-639. DHS has an electronic format to request documents from the agency or any of
its components. http://www.dhs.gov/FOIA. DHS records are decentralized and the requester
“should write directly to the FOIA office of the component that maintains the records being sought.”
6 CFR §5.3(a)(1). In requesting documents from ICE, CBP, or USCIS, it is necessary to review the
agency’s document maintenance procedure. Requests should be specific as to the records sought.
6 CFR §5.3(b). DHS has exempted certain documents from disclosure. See, e.g., 74 FR 45070–83
(Aug. 31, 2009) [exempting certain CBP and FDNS records]. Fees must be paid for FOIA
responses, but may be waived in certain circumstances. 6 CFR §5.11. In many cases, separate
requests to each individual field office must be made in addition to a request to the agency’s
headquarters. Moayedi v. CBP, 510 F.Supp.2d 73, 79–81 (D.D.C. 2007) [CBP made an “adequate
search” of its records under FOIA by searching only the TECS II system without searching any of
its field offices because the FOIA request was made solely to CBP headquarters]. But see Judicial
Watch, Inc. v. DHS, 857 F.Supp.2d 129 (D.D.C. 2012) [request made to headquarters of Border
Patrol that was then forwarded to different offices likely to have responsive records].DHS also
publishes the method in which it maintains records through a verification information system, 73 FR
10793 (Feb. 28, 2008).
(c) CBP—CBP follows DHS procedures. 19 CFR §§103.2, 103.3; 80 FR 71690. CBP now has an
online system for obtaining FOIA information through a personalized FOIA Online account system.
See http://www.cbp.gov/site-policy-notices/foia. A user having problems with the system may call
(202) 325-0150. In addition, CBP, through its I94 website portal called I-94 webpage now permits a
traveler to retrieve his most recent I-94 by clicking “Get Most Recent I-94” and his 5-year history of
entries based upon CBP’s I-94 records by clicking “Get Travel History.” Press Release, CBP,
Arrival/Departure History Now Available on I-94 Webpage (Apr. 30, 2014), AILA Doc. No.
14043044. See generally FAQs CBP, FOIA (May 7, 2014), AILA Doc. No. 14050700; Message,
CBP, FOIA (June 6, 2014), AILA Doc. No. 14060600[procedure for FOIA online]. An applicant may
also still send FOIA requests by mail, but such requests are disfavored. The address for CBP is:
U.S. Customs and Border Protection, 1300 Pennsylvania Ave., NW, Attn: Mint Annex Building,
FOIA Division, Washington, DC 20229; (202) 572-0640. CBP is the subject of a class action
pattern-or-practice claim for routine failure to comply with the 20-day requirement. Brown v. CBP,
15-cv-01181-JD, 2015 WL 5535799 (N.D. Cal. Sept. 17, 2015) [order denying government’s motion
to dismiss].
(d) USCIS—USCIS has a 3 track system:
Track 1, for less complex requests that can be processed in 20 days;

Track 2, for complex requests that may require more than 20 working days;
Track 3 (NTA Track)—Accelerated access to A-Files for individuals served with NTA. Does
not include cases where IJs have issued final orders, where an appeal Page 555 has been
filed, or the hearing date has passed and the respondent failed to appear resulting in closure
or an in absentia order. File Form G639 and G-28 along with the NTA or OSC, notice of
continued hearing or I863 (notice of referral to IJ), and a request to treat more expeditiously
because of a removal proceeding. 72 FR 9017–18 (Feb. 28, 2007); Manual, USCIS,
FOIA/PA (Mar. 28, 2016), AILA Doc. No. 16102838[discussing Track 3 as distinguished from
expedited cases at pp. 3576-95, 3746-47]; Hajro v. USCIS, 832 F.Supp.2d 1095, 1120-21
(N.D. Cal. 2012) rev’d on other grounds 811 F.3d 1086 (9th Cir. 2016) [the Track 3 ruling was
not appealed, but because the relief order was vacated on appeal due to standing and
immunity issues, the district court must determine on remand what relief should be granted
as to the agency’s failure to provide notice and comment rulemaking where the agency
limited Track 3 solely to removal (and not naturalization or other) proceedings].
For more information regarding USCIS’s processing of FOIA and Privacy Act requests See
USCIS FOIA/PA Processing Guide (Sept. 27, 2013), AILA Doc. No. 13122343. The manual
contains substantial information regarding USCIS’s treatment of a myriad of issues, including
a request by a spouse who seeks to obtain his or her affidavit of support documents from
his/her estranged spouse’s file (they do not permit it without the estranged spouse’s consent)
to the agency’s response to requests that fall under Glomar. USCIS also has a manual
describing the FOIA/PA process. Manual, USCIS, FOIA/PA (Mar. 28, 2016), AILA Doc. No.
16102838. [discussing Track 3 and distinguishing it from expedited cases at pp. 3576-95,
3746-47; that a G-28 may not be necessary where certification on FOIA form is signed, pp.
3614-15; verification of identity, pp. 3609-23; special requests by estranged spouses or for
records of persons deceased, pp. 3632-48; referring requests to another agency, pp.3649-
58; SOPs for significant interest group requests, pp. 3827-3920; and letter templates when
releasing personal/proprietary information, pp. 3936-38]
(e) EOIR—Do not use G-639. Request should be in writing and should describe the records sought.
The respondent’s name, A#, and the date and court location of the proceedings should be provided.
If a person is requesting information about himself, include a notarized statement or statement
under penalty of perjury or a DOJ-3. To request information on behalf of another individual, the
requester must provide a notarized consent to release the information to him/her. If the person is
deceased, the requester needs a death certificate, newspaper obituary or other proof of death. Fact
Sheet, EOIR, How to File a Freedom of Information Act Request with EOIR (Oct. 9, 2008), AILA
Doc. No. 08101668. See also Immigration Court Practice Manual at Chap. 12. EOIR has changed
the FOIA/Privacy Act telephone # and address to: (703) 605-1297 and U.S. DOJ, EOIR, Office of
General Counsel-FOIA Service Center, FOIA/Privacy Act Requests, 5107 Leesburg Pike, Suite
1903, Falls Church, VA. 22041.
(f) Genealogy Program—DHS has established a fee-for-service program to perform genealogical

research for historical records (file G-1041) and/or a request to copy a specific historical record if
known (file G-1041A). 8 CFR §§103.7(b)(1), 103.38–.41. Historical files are naturalization
certificates from Sept. 27, 1906, to Apr. 1, 1956; visa files from July 1, 1924, to Mar. 31, 1944;
registry files from Mar. 2, 1929, to Mar. 31, 1944; and A-Files below 8 million (A8). 8 CFR §103.39.
Fees may not be waived under this program. 8 CFR §103.7(c).
(g) DOL Procedures— 29 CFR pt. 70. Privacy Act procedures are referenced at 29 CFR pt. 71. FOIA
requests of any component of the DOL submitted electronically must be submitted to the DOL’s
central FOIA mailbox at foiarequests@dol.gov. 29 CFR §70.19(a), but should identify the
component(s) to which the request is directed. 29 CFR §70.19(b). If submitted in writing, the
request should be directed to the appropriate component. Id. The addresses for the components
are listed at the DOL’s website at http://www.dol.gov/general/foia. The request should identify the
record in sufficient detail Page 556 including the subject of the record, the date or approximate date
when the record was created, the record’s title or name, case or file number, reference number, the
person or office or the office location that created it, and any other pertinent identifying details. 29
CFR §70.19(c). Appeals from denials must be filed within 90 days. 29 CFR §70.22(a). The
regulations contain provisions on handling confidential commercial information. 29 CFR §70.26.
(h) DOS Passport Information—Access to U.S. passport information may be limited. See Ch. 13,
Section IV.D (p.2188), infra.
(i) Fingerprint FOIAs—To obtain a fingerprint record an applicant needs to file with the Office of
Biometric Identity a fingerprint card, a G-28, and a Form 639. It should be addressed to Office of
Biometric Identification, OBIM FOIA, 245 Murray Lane SW, Washington D.C. 20598-0628.
(j) Confidential Commercial Information—A person submitting what it believes is confidential

commercial information that may be protected by Exemption 4 of the FOIA “must use good faith
efforts to designate by appropriate markings, either at the time of submission or within a reasonable
time thereafter, any portion of its submission that it considers to be protected from disclosure under
Exemption 4.” 6 CFR §5.7(b). This notice does not have to be submitted if the agency determines
the information is exempt under the FOIA. 6 CFR §5.7(d)(1). If the agency has a FOIA request for
documents, it shall give the submitter of the documents at least 10 days to respond an object to the
disclosure of the documents requested. The submitter should provide the agency a “detailed written
statement that specifies all grounds for withholding the particular information under any exemption
of the FOIA.” 6 CFR §5.7(e)(1). To rely on Exemption 4 the submitter must explain why the
information is a trade secret, or commercial or financial information that is privileged or confidential.
Id.
(3) Federal Policy under OPEN Government Act of 2007 and the FOIA Improvement Act of 2016,—PL
110-175 §7, 121 Stat. 2524 (Dec. 31, 2008), PL 114-185, 130 Stat. 538 (June 30, 2016)
(a) Open Government Act—For FOIA requests filed after Dec. 31, 2008 agencies must assign an
individualized tracking number to requests that will take longer than 10 days to process and provide
the tracking number to the requester. In addition, agencies must establish a telephone line or
internet address that requesters can use to inquire about the status of the case and when
completion is expected. The statute also requires that court-awarded attorney’s fees be paid from
the agency’s own appropriation. The Obama Administration reversed a more restrictive FOIA policy
and determined that the DOJ will defend a denial of a FOIA request “only if (1) the agency
reasonably foresees that disclosure would harm an interest protected by one of the statutory
exemptions, or (2) disclosure is prohibited by law.” Memo, Holder, Attorney General, The Freedom
of Information Act (Mar. 19, 2009), AILA Doc. No. 09032061.
(b) FOIA Improvement Act of 2016—The Act requires the government to provide information in an
electronic format if it believes that because of the nature of the subject matter it is likely that there
will be subsequent request for substantially the same information or if there have been 3 or more
requests. Requesters are given 90 not 30 or 60 days to appeal an adverse decision. 5 USC
§552(a)(6)(A)(i)(III)(aa). Requesters are not required to pay search fees or in some cases
duplication fees if the agency fails to comply with certain time limits under 552(a)(6) unless a court
has determined that exceptional circumstances exist or (i) the requester has been timely advised of
unusual circumstances; (ii) more than 5000 pages are necessary to respond and (3) the agency
has contacted the requester (or made at least three good faith attempts) to narrow or revise the
scope of the request. 81 FR 83625 (Nov. 22, 2016). An agency may only withhold information if it
“reasonably foresees that disclosure would harm an interest protected by an exemption” 552(a)(8)
(A) or the disclosure is prohibited by law. However, the agency must also “consider whether partial
disclosure … is possible” and takes “reasonable steps necessary to segregate and release
nonexempt information” Page 557 Moreover, the “deliberative process privilege shall not apply to
records created 25 years or more before the date on which the records were requested” pursuant
to exemption (b)(5). 5 USC §552(b)(5)
(4) DHS Response Process; Expedited Processing under Settlement Agreement—DHS offices are
ordered to respond to requests on a first in, first out basis unless there are complex and routine cases
together requiring a two-tier system. Memo, Martinez, Asst. Comm. Records Systems Division, CO
1491-P (Apr. 29, 1992), reprinted in 69 Interpreter Releases 916–18 (July 27, 1993). Under the
settlement agreement in Mayock v. INS, No. C-85-5169-Cal (N.D. Cal. May 22, 1992), the Service
established a national policy which permits persons who demonstrate “exceptional need or urgency” to
have their requests processed out of turn on an expedited basis. To obtain expedited treatment, the
requester must show that an individual’s life or personal safety would be jeopardized or that substantial
due process rights would be impaired by the failure to process immediately and the information sought
is not otherwise available. See also Ray v. DOJ, 770 F.Supp. 1544 (S.D. Fla. 1990) [INS ordered to
comply with 10-day time requirements set forth in 5 USC §552(a)(6)(A)–(C) and required not to invoke
10-day extension more than one time per FOIA request]. But see American Ctr. for Law v. DOS, 249
F.Supp.3d 275 (D.D.C. 2017) [rejected pattern-or-practice case against DOS for its delay in responding
to requests]; Electronic Frontier Found. v. DOJ, 563 F.Supp.2d 188 (D.D.C. 2008) [FBI given additional
time to respond under “exceptional circumstances” test established in Open America v. Watergate
Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976) where FBI was exercising due diligence, the
request involved 72,000 pages, and there was an “enormous workload” with a “diminished staff” in the
records section]; Long v. DHS, 436 F.Supp.2d 38 (D.D.C. 2006) [where an organization sought
documents regarding government claims made in a cert. petition to the S.Ct. but failed to identify an
imminent action, government’s failure to establish unusual circumstances for not producing the
documents within the statutory period was not a sufficient basis to obtain expedited treatment]. An
applicant in litigation with the government in FOIA cases may also ask for a preliminary injunction to
obtain the documents on an expedited basis pursuant to 5 USC §552(a)(6)(E)(i)(II) [agencies are
directed to provide documents on an expedited basis where the requester demonstrates a “compelling
need”]. See e.g., ACLU v. DOJ, 321 F.Supp.2d 24, 29 (D.D.C. 2004) [public debate over the renewal of
the USA PATRIOT Act]. But see Wadelton v. DOS, 941 F.Supp.2d 120 (D.D.C. 2013) [denied
preliminary injunction to expedite documents of requester who was suing the DOS over improper
termination].
(5) Standing to Sue—In Hajro v. USCIS, 811F.3d 1086, 1102-07 (9th Cir. 2016) the Ninth Circuit
addressed standing in a pattern-or-practice FOIA suit where a party seeks declaratory or injunctive
relief and held that in order to show injury in fact the plaintiff must demonstrate that: (1) the agency’s
FOIA violation was not merely an isolated incident; (2) plaintiff was personally harmed by the alleged
policy; and (3) that plaintiff himself has a sufficient likelihood of future harm by the policy or practice. In
Hajro, the court found that James Mayock, a practicing immigration lawyer for over thirty years, is a
“requester” under the FOIA independent of his client, that delay alone is a sufficient injury and that he
had the right to bring a pattern-or-practice claim for himself, but remanded the case to district court
because genuine issues of material fact remained as to his personal harm because the example of
delay he provided was an FOIA response addressed to another attorney at his firm.
(6) Adequacy of Search—Whatever the time period for the search, the government must demonstrate its
search was adequate. To conduct an adequate search the agency must: (1) show beyond material
doubt that it has conducted a search reasonably calculated to uncover all relevant documents; (2) set
forth the search terms used and the search conducted; and (3) describe the structure of the file system
searched. National Day Laborer Organizing Network v. ICE, 877 F.Supp.2d 87 (S.D.N.Y. 2012) [finding
government search and search terms regarding the secure communities program inadequate in certain
respects]. An adequate search should also include detail regarding: (1) who conducted the search; (2)
the form and location of the files searched; (3) what records were searched; (4) how the search was
conducted; (5) the specific search terms utilized; and (6) whether responsive records were discovered.
Judicial Watch, Inc. v. DHS, 857 F.Supp.2d 129, 140-41 (D.D.C. 2012) [finding search descriptions for
certain Page 558 components of Border Patrol inadequate]. “When an agency’s search is questioned it
must show ‘beyond material doubt that its search was reasonably calculated to uncover all relevant
documents.’ ” James Madison Project v. DOS, 235 F.Supp.3d 161, 165 (D.D.C. 2017) [quoting Ancient
Coin Collectors Guild v. DOS, 641 F.3d 504, 514 (D.C. Cir. 2011) and finding DOS’s search inadequate
because the affidavit supporting the search was conclusory and the agency searched different data
sets using different search terms and date restrictions for no discernable reason]. See also Rubman v.
USCIS, 800 F.3d 381 (7th Cir. 2015) [USCIS did not institute an adequate search of all documents
reflecting statistics on H-1Bs when it responded to “all documents” by providing a single, newly
generated statistical table]; Republican Nat’l Comm. v. DOS, 235 F.Supp.3d 235 (D.D.C. 2016)
[requiring that request be read liberally and determining search was not adequate where DOS search
“visitor logs” as requested to determine who met with Secretary instead of also looking at Outlook
calendars and schedules]; Parker v. ICE, 238 F.Supp.3d 89, 101-05 (D.D.C. 2017) [government
affidavit did not provide sufficient details of search terms to determine whether it conducted an
adequate search and the agency must provide meaningful details such as the computer programs
where backup systems may contain documents]; Garcia v. USCIS, 168 F.Supp.3d 50, 59-62 (D.D.C.
2016) [search is based upon a reasonableness standard specific to the case and here where all
documents would reasonably be in “A” file, there was no reason to doubt that matters related to I-485A
would be anywhere else; even if “T” file existed it would have been consolidated with “A” file];
American Immigr. Council v. DHS, 21 F.Supp.3d 60, 70-73 (D.D.C. 2014) [an adequate search under
DC Circuit requires all files likely to contain requested information be searched and defendants’
affidavit only stated it searched “most likely” files]; Rosenberg v. ICE, 959 F.Supp.2d 61, 70-72 (D.D.C.
2013) [search not adequate where FBI did not aver or demonstrate that it searched all files “likely to
contain responsive materials” and that searches of other records “were not likely to turn up the
information requested” where the request broadly included backup servers or tapes in searching for
records related to Postville, Iowa raid]; American Immigr. Council v. DHS, 950 F.Supp.2d 221, 229-34
(D.D.C. 2013) [finding ICE search regarding private counsel treatment inadequate because it failed to
aver that it searched all offices likely to have documents and thus excluded certain field offices and
departments and did not describe data bases it searched in sufficient detail, but rejected countervailing
evidence argument]; American Immigr. Council v. DHS, 905 F.Supp.2d 206, 215 (D.D.C. 2012) [search
not adequate where declaration fails to state what kinds of records the offices keep, which records or
databases the offices searched through, or how the offices conducted their searches]; Perez-
Rodriguez v. DOJ, 888 F.Supp.2d 175, 182-84 (D.D.C. 2012) [ICE, ERO and ICE HSI did not conduct
an adequate search where only plaintiff’s name and A# were used and other search terms were not
identified nor other names used]; Strunk v. DOS, 770 F.Supp.2d 10, 17 (D.D.C. 2011) [CBP’s cursory
statement that the “FOIA Division conducted a search in the TECS database” for entries and exits of
Pres. Obama’s mother was not adequate]. But see Mobley v. CIA, 806 F.3d 568, 580-83 (D.C. Cir.
2015) [request that agency search a particular record system, without more, does not constitute a
“lead” that an agency must follow because a lead must be both clear and certain and so apparent that
an agency cannot in good faith fail to pursue it]; Hamdan v. DOJ, 797 F.3d 759, 770-72 (9th Cir. 2015)
[DOS and FBI’s searches were adequate where requester sought records about his detention and
torture because he was entitled to a “reasonable search for records, not a perfect one”]; Davidson v.
U.S. DOS, 264 F.Supp.3d 97, 107-09 (D.D.C. 2017) [search limited to plaintiff’s name as stated in
request was adequate] Freedom Watch, Inc. v. DOS, 179 F.Supp.3d 121 (D.D.C. 2016) [search is
adequate despite DOS not finding any documents responsive to request]; Long v. ICE, 149 F.Supp.3d
39, 59-61 (D.D.C. 2015) [search for metadata and data schema of EID/IIDS databases was adequate
despite not searching those databases directly but instead relying on a repository (SLM) of the
requested record]; American Civil Liberties Union v. USCIS, 133 F.Supp.3d 234, 246-47 (D.D.C. 2015)
[USCIS search of records was adequate as it explained reports it produced as the only ones they had];
Gahagan v. USCIS, 147 F.Supp.3d 613, 623-25 (E.D. La. 2015) [search for “A” file and e-mails/notes
was adequate as the agency is not required to explain why it declined to search certain records]; Soto
v. DOS, 118 F.Supp.3d 355, 361-65 (D.D.C. 2015) [where requesters were denied visas on ground that
there was “reason to believe” they were involved in drug trafficking, the DOS’s search of the Page 559
Central Foreign Policy Records (“Central File”), Consular Consolidated Database (“CCD”) and the U.S.
Embassy in Bogota was adequate]; Gahagan v. USCIS, 111 F.Supp.3d 754, 759-60 (E.D. La. 2015)
[search was adequate because it was reasonably calculated to yield responsive documents even if the
I-485 and AOS receipt number which plaintiff sought only turned up after filing SJ motion]; Judicial
Watch, Inc. v. DHS, 59 F.Supp.3d 184, 190-92 (D.D.C. 2014) [search for 9/11 terrorists immigration
documents was adequate even though DHS could not find some of the publicly released documents
such as Atta’s I-94]; Rosenberg v. ICE, 13 F.Supp.3d 92, 102-05 (D.D.C. 2014) [after third government
affidavit on adequacy of search the court found that the FBI’s search of the Central Records System
was adequate]; Concepcion v. CBP, 907 F.Supp.2d 133, 138-40 (D.D.C. 2012) [search of TECS
system for departures and arrivals was adequate]; International Counsel Bureau v. Dep’t of Defense,
723 F.Supp.2d 54, 58-60 (D.D.C. 2010) [DOD did meet its burden in request related to Guantanamo
detainees where certain searches would be unduly burdensome including using 12 people for over a
year to review tapes ]; ACLU v. DHS, 738 F.Supp.2d 93, 101-05 (D.D.C. 2010) [DHS properly
conducted search and properly utilized a cut-off date]; Tunchez v. DOJ, 715 F.Supp.2d 49 (D.D.C.
2010) [CBP submitted “clear, specific, detailed and non-conclusory explanatory declarations” that
established they conducted reasonable searches and released all reasonable segregable nonexempt
information]; Anderson v. DOS, 661 F.Supp.2d 6 (D.D.C. 2009) [search of documents concerning
Powell’s presentation to U.N. regarding Iraq was sufficient]; Moayedi v. CBP, 510 F.Supp.2d 73, 79–81
(D.D.C. 2007) [CBP made an “adequate search” of its records under FOIA by searching only the TECS
II system without searching any of its field offices because FOIA request was made solely to CBP
headquarters]; Abdelfattah v. DHS, 488 F.3d 178, 182 (3d Cir. 2007) [finding USCIS record search
adequate but finding FBI search, without any supporting affidavit, inadequate]. The court may order
discovery of the adequacy of the government’s search in limited circumstances where they failed to
meet their burden or acted in bad faith. Families for Freedom v. CBP, 837 F.Supp.2d 331 (S.D.N.Y.
2011) [“After nearly two years of inadequate searches, six sworn [government] declarations, numerous
letters and briefs and in person conferences, the Court’s patience has worn out” and it ordered limited
discovery on the adequacy of CBP’s search for sector enforcement records].
(a) Search Fees and Fee Reduction—In the view of one district court, it was not unreasonable to
request $157,000 in search fees and to request it for the first time after litigation under FOIA began.
Rosenberg v. ICE, 954 F.Supp.2d 1 (D.D.C. 2013) [failure to pay search fees of $157,000
constitutes failure to exhaust]. However, requesters may also ask for reduced fees. Long v. DHS,
113 F.Supp.3d 100 (D.D.C. 2015) [court found that ICE’s decision not to grant educational and
news media to TRAC, which would have entitled them to reduced fees, in their requests for
databases maintained by ICE and CBP was improper].
(7) Venue/Exhaustion—The district court venue for a noncitizen who files a FOIA claim may be the place
of his or her residence. Arevalo-Franco v. INS, 889 F.2d 589 (5th Cir. 1989). The request must be
consistent with the agency’s regulations and the requester must exhaust his administrative remedies
before filing suit. Bayala v. DHS., 72 F.Supp.3d 260, 263-66 (D.D.C. 2014); Lewis v. DOJ, 733
F.Supp.2d 97, 106-107 (D.D.C. 2010).
(8) USCIS and ICE Requests Are Separate—In Hussain v. DHS, 674 F.Supp.2d 260, 264–66 (D.D.C.
2009) the court determined that a request to USCIS is separate from a request to ICE and USCIS is
only obligated to provide records that are in the Alien File/Central Index System (“A-File”) because that
is the universe of transactions between the petitioner and USCIS.
(9) Referral to Other Agencies—An agency may adopt procedures by which documents in its
possession, but which did not originate with it, are referred to the originating agency for processing.
McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) However, a referral to another agency may not
significantly impair the requester’s ability to obtain the records or significantly increase the amount of
time the requester must wait to obtain the records. McGehee, 697 F.2d at 1110; Gahagan v. USCIS,
111 F.Supp.3d 754, 762-63 (E.D. La. 2015) [referral of 33 out of 500 documents to ICE from USCIS
resulting in a wait of four months did not significantly increase respondent’s wait time]. And if the net
effect is significantly to impair Page 560 the requester’s ability to obtain the records, it is considered an
improper withholding and the agency bears the burden of demonstrating why referring the documents
was reasonable under the circumstances. Gahagan v. USCIS, 147 F.Supp.3d 613, 625-27 (E.D. La.
2015) [denied SJ to USCIS where it failed to articulate why referral of 4 documents will not significantly
delay or impair the ability to obtain the records]
(10) FOIA Exceptions to be Narrowly Construed—The exceptions under the FOIA preventing disclosure
are to be narrowly construed. Milner v. Dep’t of the Navy, 562 U.S. 562 (2011) [Exemption 2 narrowly
construed to only cover “human resource matters” pertaining to “rules and practices dealing with
employee relations or human resources”]; Dep’t of the Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1 (2001); DOJ v. Tax Analysts, 492 U.S. 136, 151 (1989); AILA v. EOIR, 830 F.3d 667
(D.C. Cir. 2016) [exemptions should be narrowly construed and the court determined that EOIR: (i)
was required to balance the public’s interest in receiving information about IJs who were disciplined
against their privacy; and (ii) produce nonresponsive information in records the government identified
as response unless it asserts an exemption]. The FOIA reflects “a general philosophy of full agency
disclosure unless information is exempted under clearly delineated statutory language.” Dep’t of the Air
Force v. Rose, 425 U.S. 352, 360–61 (1976). Congress enacted the FOIA “to pierce the veil of
administrative secrecy and to open agency action to the light of public scrutiny,” Rose, supra, at 361;
“The basic purpose of the FOIA is to insure and informed citizenry, vital to the functioning of a
democratic society, need to check against corruption and to hold the government accountable to the
governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). The Act “adopts as its
most basic premise a policy strongly favoring public disclosure of information in the possession of
federal agencies.” El Badrawi v. DHS, 596 F.Supp.2d 389, 391 (D. Conn. 2009) [quoting Halpern v.
FBI, 181 F.3d 279, 289 (2d Cir. 1999) and requiring the release of visa revocation and other records
from CBP, USCIS, ICE, and DOS]. “The Act is intended to facilitate transparency about the
government’s policies even—or perhaps especially—when members of the public are disturbed by
those policies and are fighting to end them.” National Day Laborer Organizing Network v. ICE, 877
F.Supp.2d 87, 93 (S.D.N.Y. 2012) [finding government search and search terms inadequate and
responding to the government’s claim that they have spent thousands of hours and hundreds of
thousands of dollars on the search by noting that: “Transparency is indeed expensive, but it pales in
comparison to the cost to a democracy of operating behind a veil of secrecy”]. For example, the
agency may not assert a “deliberative process” privilege to protect its use of informal rules to discharge
its duty. National Immigr. Project of the Nat’l Lawyers Guild v. DHS, 868 F.Supp.2d 284 (S.D.N.Y. 2012)
[rejecting deliberative process where documents were not pre-decisional and deliberative; rejecting
work product simply because ICE returns successful litigant and restores his status; and rejecting
attorney-client privilege because it does not involve confidential information concerning the agency
with which DHS officials communicated]; Dolin, Thomas & Solomon, LLP v. DOL, 719 F.Supp.2d 245,
253 (W.D.N.Y. 2010) [required disclosure of documents used to discharge its regulatory duties, unless
protected by the attorney-client privilege, because it was “secret law” that the agency did not designate
it as binding, formal or final]. An agency may also not assert a work-product privilege when it has made
“unilateral testimonial use” of the documents. National Immigr. Project of the Nat’l Lawyers Guild v.
DHS, 842 F.Supp.2d 720 (S.D.N.Y. 2012)[denied work product, attorney-client, and deliberative
process challenges to FOIA request regarding government’s alleged policy on returning persons to the
U.S. who are successful in their petitions for review]. Nor may it broadly assert a national security
exemption because it pertains to law enforcement activities along the nation’s borders. Families for
Freedom v. CBP, 797 F.Supp.2d 375, 390-93 (S.D.N.Y. 2011) [requiring disclosure of Buffalo sector
reports notwithstanding claim under Exemption 7(E)].
(11) Burden of Proof
(a) In General—The agency always has the burden of proof to establish its decision to withhold
documents was proper. 5 USC §552(a)(4)(B); AILA v. EOIR, 830 F.3d 667, 673-76 (D.C. Cir. 2016)
[despite substantial interest under Exemption 6 in privacy of IJs’ names subject to discipline, a
blanket rule excluding the information was improper Page 561 because there is a “variety in types
of complaints and circumstances” including a retired IJ who may have a greater privacy interest
than a sitting one and an IJ who may have more complaints and whose identity is therefore of
greater public interest]; AILA v. EOIR, 281 F.Supp.3d 23 (D.D.C. 2017) [on remand, utilizing the
factors in the appellate court’s decision, the court determined that the public interest weighs toward
disclosure of cases involving sitting judges with a substantial number of serious and substantiated
complaints; ordered release of 14 judges names and withheld 20 IJ names]; Union Leader Corp. v.
DHS, 749 F.3d 48 (1st Cir. 2014) [public interest in disclosure outweighs arrestees’ privacy interests
in their names and Exemptions 6 and 7(C) do not bar release]; News Press v. DHS, 489 F.3d 1173
(11th Cir. 2007) [narrowly construing Exemption 6 regarding “unwarranted invasion” of privacy and
granting release of addresses because DHS cannot establish that the privacy interest in
nondisclosure is greater than the public interest in disclosure]; Long v. ICE, 279 F.Supp.3d 226,
234-39 (D.D.C. 2017) [again denying SJ to the government on their new theory that hackers could
get information from the release that would jeopardize their system notwithstanding that are more
than 100 previous occasions the information requested has been disclosed to the same party];
Long v. ICE, 149 F.Supp.3d 39, 48-54 (D.D.C. 2015) [ICE has not yet met its burden under
Exemption 7(E) (law enforcement)] to exempt requests to obtain metadata and database schema
of the EID/IIDS systems of records regarding the fields, variables, codes and structure of those
systems, notwithstanding the “low bar” for establishing such risk because the agency has not yet
proven that disclosure will increase the risk of cyber-attacks; nor can ICE/CBP assert Exemption 3
because the statute it relies on for the exemption, the Federal Information Security Modernization
Act of 2014, 44 USC §3551 does not cite 5 USC §552(b)(3) as the basis to prevent disclosure];
American Civil Liberties Union v. USCIS, 133 F.Supp.3d 234, 241-45 (D.D.C. 2015) [USCIS failed
to sustain its burden in asserting Exemption 7(E) regarding release of law enforcement techniques
where it offered no explanation that the information “if released, could risk circumvention of the law,
no explanation of what laws would purportedly be circumvented, and little detail regarding what law
enforcement purpose is involved”]; Gahagan v. USCIS, 147 F.Supp.3d 613, 629-30 (E.D. La. 2015)
[agency did not meet its burden in asserting deliberative process privilege where its conclusory
description, such as disclosure “would chill open communication,” was inadequate]; New York
Times Co. v. DHS, 959 F.Supp.2d 449 (S.D.N.Y. 2013) [released names of persons since 2008 who
were designated for removal but released under Zadvydas; Trea Senior Citizens League v. DOS,
923 F.Supp.2d 55, 63-65 (D.D.C. 2013) [in request for Totalization Agreement documents
defendants assertion of Exemption 1 under Executive Order 13526 was insufficient where
documents were previously unclassified]; National Day Laborer Org. Network v. ICE, 827 F.Supp.2d
242, 253-54 (S.D.N.Y. 2011) [burden on agency in Exemption 5 proceedings regarding deliberative
process and attorney-client privilege]; Lawyers Comm. for Human Rights v. INS, 721 F.Supp. 552
(S.D.N.Y. 1989) [government bears burden of asserting FOIA exemption]. When an attorney-client
privilege is raised under Exemption 5, the agency has the burden to demonstrate it maintained
confidentiality (although recognizing that the burden to prove a waiver of work-product is not on the
government). Judicial Watch Inc. v. DHS, 841 F.Supp.2d 142 (D.D.C. 2012) [denying in several
respects DHS’s motion for summary judgment because its assertions of privilege in regard to
documents related to the ICE prosecutorial discretion memos were too conclusory, generalized and
nonspecific]; El Badrawi v. DHS, 583 F.Supp.2d 285 (D. Conn. 2008) [requiring CBP, USCIS, ICE,
DOS, and FBI to submit to limited discovery regarding their affidavits and requiring production of
documents in camera] and El Badrawi v. DHS, supra [ordering the release of documents including
visa revocation documents after discovery and in camera review].The agency’s policy that it will
decline to search for documents produced after the date of a requester’s letter is inconsistent with
the FOIA. Public Citizen v. DOS, 276 F.3d 634, 642–44 (D.C. Cir. 2002). There may, however, be
certain categories of documents exempt from disclosure because they are so imbued with a privacy
interest, DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776–80 (1989) [DOJ
could validly assert Exemption 7(C) without conducting an individualized Page 562 search of FBI
rap sheets of specific persons], but an agency generally must conduct a document-by-document
review to make such an assessment. Judicial Watch, Inc. v. DHS, 598 F.Supp.2d 93 (D.D.C. 2009)
[documents pertaining to prosecution of border patrol agents convicted in shooting of Mexican must
be individually reviewed to determine balancing test for release].
i) Bad-Faith Exception—Certain district courts have found that a bad-faith exception to the
government’s assertion of Exemption 5 (deliberative process) may apply. Judicial Watch, Inc. v.
DOS, 285 F.Supp.3d 249 (D.D.C. 2018) [collecting cases and assuming that if a bad-faith
exception applies, it applies to the egregiousness of the contents of the discussions in the
documents and not to the agency’s underlying conduct but holding that in the case the
discussions in the documents did not indicate “nefarious motives” or “extreme government
wrongdoing”]
(b) Vaughn Index—The agency’s assertion of nondisclosure must be supported by a Vaughn index
and detailed affidavit explaining why no portions of any document may be segregated and released
and the Vaughn index must be error free. Muchnick v. DHS, 225 F.Supp.3d 1069, 1074 (N.D. Cal.
2016) [discussing importance of Vaughn index over use of in camera review]; Gahagan v. USCIS,
147 F.Supp.3d 613, 627-31(E.D. La. 2015) [found Vaughn index insufficient because it failed to
provide reasons for withholding documents and failed to provide sufficient information when
asserting an exemption]; American Immigr. Council v. DHS, 21 F.Supp.3d 60, 74 (D.D.C. 2014)
[agency denied summary judgment where it failed to include document in Vaughn index]; American
Immigr. Council v. DHS, 905 F.Supp.2d 206, 216-17 (D.D.C. 2012) [quoting Schiller v. NLRB, 964
F.2d 1205, 1209 (D.C. Cir. 1992) and stating that errors in a Vaughn index “are unacceptable”]. The
Vaughn index must provide “information that is not only specific enough to obviate the need for in
camera review, but that also enables the court to review the agency’s claimed redactions without
having to pull the contextual information out of the redacted documents for itself.”]; National Immigr.
Project of the Nat’l Lawyers Guild v. DHS, 868 F.Supp.2d 284, 291 (S.D.N.Y. 2012); Beltranena v.
Clinton, 770 F.Supp.2d 175, 183 (D.D.C. 2011) [denying summary judgment to defendant and
finding the Vaughn declarations insufficient as they did not describe the persons who performed the
searches or how the searches were performed]; American Imm. Council v. DHS, 950 F.Supp.2d
221, 234-37 (D.D.C. 2013) [rejecting “summary” Vaughn index coupled with in camera submission
by ICE]; National Day Laborer Organizing Network v. ICE, 877 F.Supp.2d 87 (S.D.N.Y. 2012)
[finding government affidavits concerning the extent of its search and search terms regarding the
secure communities program inadequate in certain respects]; Hussain v. DHS, 674 F.Supp.2d 260,
267–70 (D.D.C. 2009) [Vaughn index was not adequate to address exemptions asserted under 2, 5
and 7(e) because it did not identify dates, author, or recipient of the documents and the responses
were not tailored or specific as to the contents of withheld documents]; Hajro v. USCIS, 832
F.Supp.2d 1095, 1111-14 (N.D. Cal. 2012) rev’d on other grounds 811F.3d 1086 (9th Cir. 2016)
[finding USCIS’s failure to provide a detailed affidavit and conclusory statements in its Vaughn
index were insufficient to meet its burden of proof under the deliberative process privilege for
withholding notes of its naturalization denial]; Allard K. Lowenstein Int’l Human Rights Project v.
DHS, 603 F.Supp.2d 354, 360–62 (D. Conn. 2009) [expressing concern with DHS’s lack of detail in
affidavits and Vaughn index and partially granting petitioner’s request for release of documents
under DHS’s Operation Frontline].
(c) Segregable Portions of a Record—Pursuant to 5 USC §552(b), “[a]ny reasonably segregable

portion of a record shall be provided to any person requesting such record after deletion of the
portions which are exempt.” Abdelfattah v. DHS, 488 F.3d 178, 186 (3d Cir. 2007) [where Vaughn
index and USCIS’s declaration provided no basis to make a segregable finding, the case was
remanded to district court to make the appropriate finding]; Hamdan v. DOJ, 797 F.3d 759, 778-81
(9th Cir. 2015) [DIA’s declaration lacked sufficient detail to determine segregability]; Gatore v. DHS,
177 F.Supp.3d 46, 50-53 (D.D.C. 2016) [in case involving access to DHS’s “assessment to refer”
asylum applicants Page 563 to removal proceedings, DHS ordered to provide a revised Vaughn
index, affidavit or declaration that reassesses the issue of segregability of each plaintiff’s
assessment and provides an adequate description of each assessment]; Gahagan v. USCIS, 147
F.Supp.3d 613, 631 (E.D. La. 2015) [where Vaughn index did not consider possibility of releasing
part of the document and failed to provide an explanation for the decision to withhold the document
in its entirety, court ordered USCIS to produce new Vaughn index to explain decision to withhold
two documents in their entirety]; Gosen v. USCIS, 118 F.Supp.3d 232 (D.D.C. 2015) [asylum
officer’s assessment was protected under Exemption 5 as both deliberative and predecisional, but
after in camera review there are factual materials and recommendations that may have been
adopted as the agency’s position that are segregable and can be released]; Trea Senior Citizens
League v. DOS, 923 F.Supp.2d 55, 69-71 (D.D.C. 2013) [in request for Totalization Agreement
documents, the DOS did not meet even the minimal requirements regarding segregating
documents in light of deficiencies in its Vaughn index]; AILA v. DHS, 852 F.Supp.2d 66, 80-82
(D.D.C. 2012) [Defendants Vaughn indexis insufficient to determine segregability of portions of law
enforcement documents]; Beltranena v. Clinton, 770 F.Supp.2d 175, 186 (D.D.C. 2011) [denying
summary judgment to defendant where declaration failed to provide a document by document
detailed response of its segregability determination]. Cf. Rosenberg v. ICE, 959 F.Supp.2d 61, 72-
73 (D.D.C. 2013) [government’s simple assertion in its affidavit that it had processed and released
all reasonably segregable information was inadequate but court’s own review indicated they had
complied]; Judicial Watch v. DHS, 926 F.Supp.2d 121, 134-37 (D.D.C. 2013) [noting the importance
of the court making a specific finding as to segregability but holding that the government’s second
Vaughn indexsupported its deliberative process claim regarding the prosecutorial discretion
documents]. But see Touarsi v. DOJ, 78 F.Supp.3d 332, 350 (D.D.C. 2015) [disjointed words and
phrases are not subject to duty to segregate and declaration that states agency went page-by-page
and released segregable, nonexempt information was sufficient]; American Immigr. Council v. DHS,
30 F.Supp.3d 67, 79-20 (D.D.C. 2014) [after in camera review court determined that records were
not segregable].
(d) Nonresponsive Material—If they government identifies a record as responsive to a FOIA request,
can the government nonetheless redact particular information within the responsive record on the
basis that the information is nonresponsive? The D.C. Circuit has said no. AILA v. EOIR, 830 F.3d
667, 677 (D.C. Cir. 2016) [“nothing in the statute suggests that the agency may parse a responsive
record to redact specific information within it even if none of the statutory exemptions shields that
information from disclosure”]. See also, Guidance, DOJ, Office of Immigration Policy, Defining a
“Record” Under the FOIA (Jan. 13, 2017), AILA Doc. No. 17011314[suggesting that post-AILA and
in the absence of a definition of “record” a document that has multiple subjects or multiple headings
can be treated as separate “records” to avoid the consequences of the decision]
(e) Affidavits/Declarations Submitted to Support Withholding—In asserting a privilege, the government

must submit a detailed declaration supporting the reasons for the assertion. Electronic Privacy Info.
v. CBP, 160 F.Supp.3d 354 (D.D.C. 2016) [in dispute over the government’s Analytical Framework
for Intelligence System affidavit failed to comply with Exemption 7E where it provided categorical
descriptions without attaching documents and it failed to describe the underlying law enforcement
techniques and procedures it seeks to protect]; Trea Senior Citizens League v. DOS, 923 F.Supp.2d
55, 65-69 (D.D.C. 2013) [declaration asserting deliberative process privilege under Exemption 5
was deficient because it: (i) did not adequately establish the nature of the decisionmaking process
involved in withholding the documents; (ii) failed to describe the function and significance of the
documents in the agency’s decisionmaking process; and (iii) did not describe the nature of the
decisionmaking authority vested in the office or person issuing the disputed documents]
(f) Public Domain—A exception to various exemptions, especially those regarding law enforcement
privileges, may arise if the document is considered part of the public Page 564 domain because it
has been disclosed. “Under the public domain doctrine, materials normally immunized from
disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent
public record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). See also Fitzgibbon v. CIA, 911
F.2d 755, 765 (D.C. Cir. 1990).To invoke the waiver, a plaintiff “must establish that the information
requested is as specific as the information previously released, must match the information
previously disclosed, and must have already been made public through an official and documented
disclosure.” AILA v. DHS, 852 F.Supp.2d 66, 74-77 (D.D.C. 2012) [finding no waiver on H-1B
Compliance Review Report, H-1B Petition Fraud Referral Sheet, and Neufeld Memo].
(12) INA §222(f) and Other Statutes Exempting Disclosure—INA §222(f) exempts from disclosure “[t]he
records of the Department of State and the diplomatic and consular offices of the United States
pertaining to the issuance or refusal of visas or permits to enter the United States…” For a discussion
concerning INA §222(f), see Chapter 5, Section II.G (p.1013), infra. Under PL 111-83 §564 Congress
has amended the FOIA to exempt from disclosure information where there is a specific statute that
exempts disclosure (such as INA §222(f)) but only if: (1) the statute explicitly leaves no discretion on
the issue; or (2) the statute establishes particular criteria for withholding or refers to particular types of
matters to be withheld. If the statute prohibiting disclosure arose after the OPEN FOIA Act of 2009,
Exemption 3 prohibiting disclosure will only apply if the statute specifically cites to 5 USC §552(b)(3)
(B). Long v. ICE, 149 F.Supp.3d 39, 54 (D.D.C. 2015) [ICE/CBP cannot assert Exemption 3 because
the statute it relies on for the exemption, the Federal Information Security Modernization Act of 2014,
44 USC §3551 does not cite 5 USC §552(b)(3) as the basis to prevent disclosure].
(13) Asylum Officers’ Notes and Martins Settlement—In Martins v. USCIS, No. C 13-00591 LB, AILA
Doc. No. 13120545, USCIS agreed not to assert the deliberative process privilege in redacting or
withholding asylum officers interview notes or any records “reflecting information, instructions, and
questions asked by officers and responses given by applicants in asylum interviews” when FOIA
requests are made for the A-File or the asylum officer’s notes. See also Martins v. USCIS, 962
F.Supp.2d 1106 (N.D. Cal. 2013) [granting injunction requiring DHS to produce Vaughn index and
holding that asylum officer’s interview notes are not subject to the deliberative process privilege]. But
the Asylum Officer’s Assessment to Refer a case is generally protected under the deliberative process
privilege but some nondeliberative parts may be released. Abtew v. DHS, 808 F.3d 895 (D.C. Cir.
2015) [assessment to refer asylum applicant to removal is protected under deliberative process
privilege]; Bayala v. DHS, 264 F.Supp.3d 165 (D.D.C. 2017) [post-Abtew, the deliberative process
privilege properly invoked but factual parts of document released]; Gosen v. USCIS, 118 F.Supp.3d
232 (D.D.C. 2015) [asylum officer’s assessment was protected under Exemption 5 as both deliberative
and predecisional but after in camera review there are factual materials and recommendations that
may have been adopted as the agency’s position that are segregable and can be released]; Abramyan
v. DHS, 6 F.Supp.3d 57, (D.D.C. 2013) [assessment to refer asylum applicant to removal and officer’s
handwritten notes about asylum claim are protected under deliberative process privilege].
(14) Immigration Officers Interview Notes in Marriage and Other Cases—AFM 15.14(f) allows the
applicant/petitioner/beneficiary to file an FOIA request for “a copy of the record of proceedings
including any written record of an interview considered before a USCIS officer.”
(15) Denying Disclosure—The government has often succeeded in challenging FOIA requests. National
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004) [in death/suicide of Vincent Foster,
where there are privacy interests protected by Exemption 7(C) and a party seeks documents (in this
case photos) to uncover government misconduct, the requester must establish “more than a bare
suspicion in order to obtain disclosure.”]; DOS v. Ray, 502 U.S. 164 (1991) [upholding privacy
exception to request for names of Haitians forcibly returned]; DOJ v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 776 (1989) [general prohibition against the disclosure of “rap sheet”
information based upon a categorical balancing of individual privacy and public interest in disclosure];
Tuffly v. DHS, 870 F.3d 1086 (9th Cir. 2017) Page 565 [privacy interests protected by Exemption 7(C)
outweighed a request by Border Patrol Union official to provide the names of 149 detainees released
by ICE due to fiscal uncertainty because he failed to produce evidence under a reasonable person
standard that an alleged government propriety may have occurred]; Center for Constitutional Rights v.
CIA, 765 F.3d 161, 166-68 (2d Cir. 2014) [videotapes of torture of 20th Twin Towers bomber need not
be released under Exemption 1 because disclosure would result in damage to national security];
ACLU v. DOJ, 681 F.3d 61 (2d Cir. 2012) [OLC torture memo, records of torture, and pictures exempt
under Exemptions 1 & 3 due to EO and National Security Act]; Islamic Shura Council of S. Cal. v. FBI,
635 F.3d 1160 (9th Cir. 2011) [vacated district court’s order that was going to release documents held
under a sealed order]; Allard K. Lowenstein Int’l Human Rights Project v. DHS, 626 F.3d 678 (2d Cir.
2010) [reading “techniques and procedures” clause under Exemption 7 E separately from “guidelines”
and providing that exception only applies to guidelines and documents should not be released]; ACLU
v. Dep’t of Defense, 628 F.3d 612 (D.C. Cir. 2011) [government properly asserted FOIA Exemption 1
(records authorized to remain secret by Executive Order) and FOIA Exemption 3 (information
specifically withheld by statute) in regard to requests concerning 14 “high value” detainees at
Guantanamo]; Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008) [lower court’s decision to uphold DEA’s
assertion of various privileges without reviewing documents in camera pursuant to 5 USC §552(a)(4)
(B), or seeking to segregate out portions of documents, upheld where petitioner sought documents
after being denied the renewal of her visa on grounds of money laundering]; Bassiouni v. CIA, 392 F.3d
244 (7th Cir. 2004) [upholding government’s refusal to provide a Vaughn index or list of documents
(called a Glomar response) where to do so would compromise intelligence gathering mechanisms];
Center for Nat’l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003) [names, attorneys’ names, dates of
arrest and release, locations of arrest and detention and reasons for detention of post 9/11 detainees
are all exempt from disclosure under Exemption 7(A) regarding law enforcement proceedings];
Students Against Genocide v. DOS, 257 F.3d 828 (D.C. Cir. 2001) [where DOS had released certain
reconnaissance photographs to U.N. Security Council regarding Bosnia, it was not required to release
the remainder]; Essential Info., Inc. v. USIA, 134 F.3d 1165 (D.C. Cir. 1998) [USIA Internet and
programming materials are exempt from disclosure under Smith-Mundt Act]; Mapother v. DOJ, 3 F.3d
1533 (D.C. Cir. 1993) [material withheld in Waldheim Report on grounds that it falls within Exemption
5 (deliberative process) and Exemption 7A (enforcement proceeding); the possibility that someone
excludable under INA §212(a)(3)(E)(i) such as Waldheim might bring a challenge to his listing on
AVLOS/NAILS Lookout constitutes an enforcement proceeding under 7A]; Maynard v. CIA, 986 F.2d
547, 564 (1st Cir. 1993) [INS search not inadequate simply because it took 17 months to locate
request]; New York Times Co. v. DOJ, 282 F.Supp.3d 234 (D.D.C 2017) [Office of Legal Counsel
memo to the AG is protected by the attorney-client privilege under Exemption 5]; Benjamin v. DOS,
178 F.Supp.3d 1 (D.D.C. 2016) [cables sent from U.S. Embassy regarding 1957 coup in Haiti against
Daniel Fignole were denied where judge took documents in camera and DOS asserted Exemption 1
concerning Executive Order in furtherance of national security]; Sack v. DOJ, 138 F.Supp.3d 10
(D.D.C. 2015) [denied disclosure under Exemptions 2, 5 7(E) of hiring practices for FBI polygraph
examiners and techniques utilized in polygraph]; Touarsi v. DOJ, 78 F.Supp.3d 332, 345-46 (D.D.C.
2015) [denied disclosure under Exemption 5 (deliberative process) of CBP handwritten notes taken
when suspected terrorist returned from abroad; also denied other materials under Exemption 1, 6,
7(C)–(E)]; Gosen v. USCIS, 75 F.Supp.3d 279 (D.D.C. 2014) [documents containing names and other
personal information withheld under Exemption 6 and 7(C) as there is no public interest that
outweighs the privacy interest; details about how USCIS processes asylum applications properly
withheld under Exemption 7(E); and denied summary judgment on 22 other documents that
defendant asserts were issued after the decision in his case and therefore may not be predecisional
under Exemption 5]; Mezerhane De Schnapp v. USCIS, 67 F.Supp.3d 95, 100-01 (D.D.C. 2014) [after
in camera review upheld assertion of Exemption 7(E) in regard to information in TECS II and IBIS];
Judicial Watch, Inc. v. DHS, 59 F.Supp.3d 184, 192-94 (D.D.C. 2014) [disclosure of primary
immigration documents of 9/11 terrorists are exempt for law enforcement purposes under Exemption
7(A) given deference to the agency’s claim that the investigation into 9/11 is ongoing]; American
Immigr. Council v. DHS, 30 F.Supp.3d 67, 74-78 (D.D.C. 2014) Page 566 [procedures and techniques
used by CBP at border when attorney’s or citizens contact them regarding person being held fall within
Exemption 7(E)]; American Immigr. Council v. DHS, 21 F.Supp.3d 60, 75-79 (D.D.C. 2014) [draft of
legal opinions and discussions with counsel are pre-decisional and exempt under Exemption 5]
Rosenberg v. ICE, 959 F.Supp.2d 61, 72-80 (D.D.C. 2013) [in regard to Postville, Iowa raid, court
upheld FBI assertions under Exemption 3 (grand jury) and to some extent under Exemption 6, 7(C)
and 7(E)]; Union Leader v. DHS, 940 F.Supp.2d 22 (D.N.H. 2013) [Under Exemption 6A and 7(C)
nondisclosure of identity of persons arrested in Operation Cross Check was appropriate because
private interest on balance outweighed public interest in disclosure]; Lazaridis v. DOS, 934 F.Supp.2d
21 (D.D.C. 2013) [government granted summary judgment on most exemptions (5, 6, 7(A), 7(C), and
7(E)) regarding documents sought by father for himself and child kept at various consulates and
embassies]; Anguimate v. DHS, 918 F.Supp.2d 13 (D.D.C. 2013) [asylum officer’s assessment to deny
and refer a case to the IJ is exempt from disclosure under Exemption 5 (deliberative process)
because it is both pre-decisional and deliberative]; Concepcion v. CBP, 907 F.Supp.2d 133, 140-43
(D.D.C. 2012) [withholding codes identifying CBP inspection officers under Exemption 7(C) and
names of other databases that were queried as well as inspection techniques under Exemption 7(E)
notwithstanding plaintiff’s unsubstantiated claims of government misconduct]; Strunk v. DOS, 905
F.Supp.2d 142 (D.D.C. 2012) [CBP properly asserted Exemption 7(E) regarding sources and methods
from TECS arrival and departure records]; Skinner v. DOJ, 893 F.Supp.2d 109 (D.D.C. 2012)
[Exemption 7(E) properly invoked to withhold disclosure of internal computer access codes from
TECS]; Judicial Watch v. DHS, 880 F.Supp.2d 105 (D.D.C. 2012) [upheld Exemption 5 (deliberative
process) claim to drafts of responses to press inquiries concerning deferred action policy]; AILA v.
DHS, 852 F.Supp.2d 66, 74-77 (D.D.C. 2012) [Exemption 7(E) properly invoked in regard to H-1B
Compliance Review Report, H-1B Petition Fraud Referral Sheet, and Neufeld Memo because
disclosure could lead to circumvention of laws or regulations, but Defendants Vaughn indexis
insufficient to determine segregability of documents]; Abdelfattah v. ICE, 851 F.Supp.2d 141, 144-46
(D.D.C. 2012) [law enforcement privilege under Exemptions 7(C)/7(E) to redact names and codes
upheld]; Abuhouran v. DOS, 843 F.Supp.2d 73 (D.D.C. 2012) [denial of extradition related documents
withheld inter alia under Exemption 1 for Executive Orders based upon EO 13526]; Muslim Advocates
v. DOJ, 833 F.Supp.2d 92, 98-102 (D.D.C. 2011) [DOJ did not waive its claim to Exemption 7E
regarding the FBI’s Domestic Investigation and Operations Guide on a “public domain” theory because
civil rights groups were allowed to view the disputed chapters of the Guide during a 2-hour meeting];
Beltranena v. DOS, 821 F.Supp.2d 167, 176-78 (D.D.C. 2011) [Exemption 3(A) properly asserted
based upon INA §222(f) and DOS adequately performed search and segregated documents
subsequent to previous order denying it summary judgment, Betranena v. Clinton, 770 F.Supp.2d 175
(D.D.C. 2011)]. Techserve Alliance v. Napolitano, 803 F.Supp.2d 16, 23-29 (D.D.C. 2011) [document
request regarding fraud investigation involving H-1B cases denied where USCIS conducted a
reasonable search and documents were properly withheld under Exemption 5 (deliberative process)
and Exemption 7(E) (law enforcement)]; Council on American-Islamic Relations v. FBI, 749 F.Supp.2d
1104 (S.D. Cal. 2010) [prohibited disclosure of the record keeping system and certain other records
regarding the details of a surveillance program by the Joint Terrorism Task Force against the Council
and others]; ACLU v. DHS, 738 F.Supp.2d 93 (D.D.C. 2010) [DHS documents related to detainees’
deaths for the most part were exempt from disclosure except certain individual reports]; Judicial
Watch, Inc. v. DHS, 736 F.Supp.2d 202 (D.D.C. 2010) [although documents were sought regarding
witness after his trial testimony, court found items were protected under deliberative process, attorney-
client, and work product privileges]; Amnesty Int’l USA v. CIA, 728 F.Supp.2d 479 (S.D.N.Y. 2010)
[upheld use of Glomar response as long as it is tethered to one of the nine FOIA exemptions and here
it related to Exemptions 1, 2, 3, 5 & EO Order No. 12,958]; Government Accountability Project v.
DOS, 699 F.Supp.2d 97 (D.D.C. 2010) [records request regarding Foundation for the Future and
correspondence of Elizabeth Cheney denied under Executive Order (Exemption 1), as trade secrets
and commercial or financial documents (Exemption 4), deliberative process (Exemption 5) and
personal files (Exemption 6)]; Judicial Watch, Inc. v. DOS, 650 F.Supp.2d 28 (D.D.C. 2009) [DOS
properly withheld Page 567 documents retrieved from a database used to determine visa eligibility
under FOIA Exemption (b)(3) because §222(f) bars disclosure]; In ‘t Veld v. DHS, 589 F.Supp.2d 16
(D.D.C. 2008) [where searches run by DHS to retrieve passenger travel records were adequate
summary judgment was granted]; American-Arab Anti-Discrimination Comm. v. DHS, 516 F.Supp.2d
83, 88–90 (D.D.C. 2007) [upholding ICE decision to withhold the gender and nationality of persons
arrested during NSEERS under Exemption 7(A) on law enforcement grounds despite affidavit of
former CIA official indicating no national security issue]; Moayedi v. CBP, 510 F.Supp.2d 73, 79–85
(D.D.C. 2007) [CBP made “adequate search” of its records under the FOIA by searching only the
TECS II system and properly asserted Exemption 2 regarding personal rules and practices of the
agency where plaintiff sought information why he had been stopped 20 times at different airports when
entering the U.S.]; Eastern Carpet House, Inc. v. DHS, 430 F.Supp.2d 672, 675–76 (S.D. Tex. 2006)
[government’s reliance on Cejka affidavit was sufficient to demonstrate due diligence by government
because it relied on a first-come first-serve basis where plaintiff’s application was in line at
approximately 12,000 of 52,000 requests]; CEI Wash. Bureau v. DOJ, 404 F.Supp.2d 172 (D.D.C.
2005) [request for personal information, such as A numbers in an electronic database regarding the
administration of the State Criminal Alien Assistance Program was exempt under Exemption 6
(privacy) and §7(C) (law enforcement purposes)]; Phillips v. ICE, 385 F.Supp.2d 296 (S.D.N.Y. 2005)
[documents regarding 2 Salvadoran military officers granted status in U.S. were exempt under
Exemption 5 (deliberative process), Exemption 7 (investigative files), Exemption 6 (personal
privacy) and attorney-client privilege. However, report to Congress summarizing findings as to
propriety of officers’ admission into U.S. was not exempt under Exemption 7(C) (law enforcement)];
Florida Immigr. Advocacy Ctr. v. National Sec. Agency, 380 F.Supp.2d 1332 (S.D. Fla. 2005) [one
document of NSA properly withheld under Exemptions 1 (executive orders) & 3 (statutes barring
disclosure) where request was in regard to the basis of the AG’s statement in Matter of D-J- that Haiti
was a staging ground for migration of third-country nationals]; Schiller v. INS, 205 F.Supp.2d 648, 657–
64 (W.D. Tex. 2002) [names and birth dates of persons arrested in an INS operation are shielded from
disclosure under the law enforcement privilege and privacy Exemptions 6 & 7(C)]; Badalamenti v.
DOS, 899 F.Supp. 542, 546 (D. Kan. 1995) [DOS properly withheld certain documents pertaining to
plaintiff’s extradition]; Cudzich v. INS, 886 F.Supp. 101, 106–08 (D.D.C. 1995) [withholding documents
under investigation-by-other-agency theory of (b)(7)(A) and refusing to reveal C.I. (b)(7)(D)]; Buffalo
Evening News v. U.S. Border Patrol, 791 F.Supp. 386 (W.D.N.Y. 1992) [upholding extensive redaction
of I-213s on internal, investigatory and privacy grounds]; Ray v. DOJ, 778 F.Supp. 1212 (S.D. Fla.
1991) [upholding privacy and investigatory exception concerning request for information about
investigations of INS employees]; Medina-Hincapie v. DOS, 700 F.2d 737 (D.C. Cir. 1983) [upholding
exemption under INA §222(f) to disclosure of visa documents]; DeLaurentiis v. Haig, 686 F.2d 192 (3d
Cir. 1982) [same]; Jan-Xin Zang v. FBI, 756 F.Supp. 705 (W.D.N.Y. 1991).
(a) Documents To Burdensome to Produce—An agency need not disclose records when conducting
the search for the requested materials would produce unreasonable burdens. Nation Magazine,
Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 891-92 (D.C. Cir. 1995); Long v. ICE, 149
F.Supp.3d 39, 55-59 (D.D.C. 2015) [despite counter affidavits court exempted ICE/CBP from
presenting and redacting copies of “snapshots” of data from the EID database because conducting
a search for the requested materials would impose an undue burden which defendants estimate
would costs hundreds of thousands if not a million dollars and would take 9.5 years].
(b) Redaction for “Non-Responsive” Materials—In addition to asserting various exemptions under the
FOIA, a government agency may redact materials that they find are nonresponsive. AILA v. EOIR,
110 F.Supp.3d 230 (D.D.C 2015).
(16) Granting Disclosure; Denying Government Summary Judgment—Immigration and DOL related
documents have been disclosed despite government challenges. Union Leader Corp. v. DHS, 749 F.3d
48 (1st Cir. 2014) [public interest in disclosure outweighs arrestees’ privacy interests in their names
and Exemptions 6 and 7(C) do not bar release]; Brennan Ctr. for Justice v. DOJ, 697 F.3d 184 (2d Cir.
2012) [extensive discussion of Exemption 5 relating to deliberative process and ordering the release
of one Office of Legal Counsel opinion but not Page 568 two others]; Abdelfattah v. DHS, 488 F.3d
178, 184–86 (3d Cir. 2007) [remanding to review Exemption 7 claim where USCIS did not identify any
connection between its law enforcement authority and the information withheld]; National Council of La
Raza v. DOJ, 411 F.3d 350 (2d Cir. 2005) [ordering release of OLC memorandum regarding authority
of state and local police to enforce immigration laws despite it being protected by the Exemption 5
(deliberative process) privilege where DOJ waived the privilege by publicly adopting the memo];
Perlman v. DOJ, 312 F.3d 100 (2d Cir.), reaff’d on remand, 380 F.3d 110 (2d Cir. 2004) [OIG’s report
on EB-5 program should be released notwithstanding privacy interest of former general counsel
because public interest outweighs law enforcement and privacy privileges except as to information
regarding third parties and witnesses]; ACLU Found. v. DHS, 243 F.Supp.3d 393, 402-05 (S.D.N.Y.
2017) [questions put to alien minors in the now defunct Juvenile Referral Program were not protected
by Exemption 7(E) because CBP did not establish anything technical about the questions asked, or
that any special method or sills were being used or that the children questioned would learn the
techniques]; Muchnick v. DHS, 225 F.Supp.3d 1069 (N.D. Cal. 2016) [request for alien files of former
coach of Ireland’s Olympic Swim team who was charged in Ireland with sexual abuse of minor women
on team but who nevertheless became an LPR; rejected Exemption 7(C) regarding unwanted
invasion of privacy because the information was publicly available and Exemption 7(E) regarding law
enforcement privilege because codes from documents were redacted]; Detention Watch v. ICE, 215
F.Supp.3d 256, 261-67 (S.D.N.Y. 2016) [unit prices, bed-rates and staffing plans in ICE contracts with
private detention facility contractors are neither “obtained from a person,” nor confidential and
therefore not exempt from disclosure under Exemption 4 (trade secrets) or Exemption 7E (law
enforcement)]; Shapiro v. CIA, 170 F.Supp.3d 147, 154-56 (D.D.C. 2016) [denied CIA’s motion to
dismiss and found that request for all documents mentioning Nelson Mandela was specific and a
“reasonable description” of the records under 5 USC §552(a)(3)(A)]; Prison Legal News v. DHS, 113
F.Supp.3d 1077, 1084-85 (W.D. Wash. 2015) [where request sought to obtain performance incentive
rates for telephone service provider to ICE detention facilities, the disclosure was not protected by
Exemption 4 because defendants could not show substantial competitive injury to telephone service
provider]; Gilman v. DHS, 32 F.Supp.3d 1, 9-18 (D.D.C. 2014) [although there is a substantial privacy
interest in withholding landowners names and addresses who may be subject to border fencing under
Exemption 6, the public interest outweighs the privacy concerns]; Trea Senior Citizens League v.
DOS, 994 F.Supp.2d 23 (D.D.C. 2013) [documents regarding totalization agreement with Mexico that
were generated after the agreement was signed with Mexico do not fall under the deliberative process
privilege as pre-decisional under Exemption 5 and must be released]; ACLU v. DHS, 973 F.Supp.2d
306 (S.D.N.Y. 2013) [where plaintiff sought detainee files relating to administrative review of continued
custody (“POCR files”) without their names and A-Numbers, the court rejected privacy claims under
Exemption 6 and 7(C) and also rejected Exemption 5 and 7(E) claims]; New York Times Co. v. DHS,
959 F.Supp.2d 449 (S.D.N.Y. 2013) [granting summary judgment to plaintiff of its request for the names
of individuals who were released under Zadvydas after being convicted and designated for removal
because on balance the privacy interests under Exemption 6 of persons whose criminal and
immigration records were already public and the law enforcement privilege under Exemption 7(C) did
not outweigh the public interest in the information]; American Immigr. Council v. DHS, 950 F.Supp.2d
221, 237-42 (D.D.C. 2013) [denying ICE summary judgment under all sections of Exemption 5 and
Exemption 7(E) due to lack of specificity]; Judicial Watch v. DHS, 926 F.Supp.2d 121 (D.D.C. 2013) [in
case involving prosecutorial discretion memos court granted disclosure despite Exemption 5
regarding work-product/attorney-client privileges but upheld nondisclosure for other documents under
deliberative process privilege]; American Immigr. Council v. DHS, 905 F.Supp.2d 206, 217-23 (D.D.C.
2012) [granting disclosure despite Exemption 5 claims of deliberative process, work-product and
attorney-client privileges] Strunk v. DOS, 845 F.Supp.2d 38 (D.D.C. 2012) [DHS did not meet burden to
demonstrate nondisclosure of record under Exemption 7(E) from the Border Crossing Information
data subset of TECS regarding travel records of Obama and his mother]; Families for Freedom v. CBP,
837 F.Supp.2d 287 (S.D.N.Y. 2011) [court granted limited disclosure regarding historical staffing
statistics, e-mails, and summaries of CBP sector law-enforcement activities, but denied release Page
569 of DOJ legal memo regarding boarding Amtrak trains and CBP officer’s notes of meeting with
Amtrak under Exemption 7(E)]; National Day Laborer Organizing Network v. ICE, 827 F.Supp.2d 242
(S.D.N.Y. 2011) [Oct. 2, 2010 memo regarding no right to opt-out of Secure Communities was not
protected by the deliberative process nor attorney client privileges and the agency “adopted” the
memo]; National Day Laborer Organizing Network v. ICE, 811 F.Supp.2d 713 (S.D.N.Y. 2011)
[requiring disclosure of secure community documents and particularly those relating to whether and
how local communities can “opt-out” of the program despite assertion of Exemption 5 (deliberative
process/attorney-client), Exemption 6 (personnel and medical files) and Exemption 7(C) (disclosure
resulting in unwarranted invasion of privacy)]; Families for Freedom v. CBP, 797 F.Supp.2d 375, 390-
93 (S.D.N.Y. 2011) [requiring disclosure of Buffalo sector reports and other documents from CBP
notwithstanding claim under Exemption 7(E)]; Dolin, Thomas & Solomon, LLP v. DOL, 719 F.Supp.2d
245, 253 (W.D.N.Y. 2010) [rejecting assertion of deliberative process privilege to protect documents
that govern informal procedures (so-called secret law) because it is not designated as binding, formal
or final and narrowly construing attorney-client privilege]; Crew v. DHS, 648 F.Supp.2d 152 (D.D.C.
2009) [court ordered release of e-mails regarding construction of southern border fence despite
assertion of deliberative process privilege]; Allard K. Lowenstein Int’l Human Rights Project v. DHS,
603 F.Supp.2d 354, 360–62 (D. Conn. 2009) [partially granting petitioner’s request for release of
documents under DHS’s Operation Frontline]; El Badrawi v. DHS, 596 F.Supp.2d 389 (D. Conn. 2009)
[ordering release of documents from CBP, USCIS, ICE and DOS, including visa revocation documents,
after discovery and in camera review]; Canaday v. USCIS, 545 F.Supp.2d 113, 118 (D.D.C. 2008)
[preventing disclosure of medical records of potentially excludable aliens but allowing other information
that does not identify a particular alien]; Public Citizen Inc. v. DOS, 100 F.Supp.2d 10, 29–30 (D.D.C.
2000), aff’d in part and rev’d in part on other grounds, 276 F.3d 634 (D.C. Cir. 2002) [memo from
USTR counsel to the USTR chief of staff analyzing a recent case is not per se exempt under §5 and is
subject to in camera review]; Ray v. DOJ, 852 F.Supp. 1558 (S.D. Fla. 1994) [rejecting privacy
exemption in request for unredacted logs of Haitian interdictees]; U.S. v. Colima-Monge, 978 F.Supp.
941 (D. Or. 1997) [ordering disclosure of documents in deported co-defendant’s A file].
(a) Deliberative Process—Under the FOIA Improvement Act of 2016, PL 114-185, 130 Stat. 540 (June
30, 2016) the “deliberative process privilege shall not apply to records created 25 years or more
before the date on which the records were requested” pursuant to exemption (b)(5). 5 USC §552(b)
(5)
(17) Glomar Response—Pursuant to Hughes Glomar Explorer Minier v. CIA, 88 F.3d 796, 800 n.4 (9th
Cir. 1996) (citing Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976), the government may, when
appropriate refuse to confirm or deny the existence of records pertaining to a named individual where
to do so would cause harm under an FOIA exception. The term “Glomar response” arose in Phillippi
when the CIA refused to confirm or deny CIA connection to a ship named the Hughes Glomar
Explorer. Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004) [upholding government’s refusal to provide a
Vaughn index or list of documents where to do so would compromise intelligence gathering
mechanisms]. See also Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir. 2015) [CIA did not waive its
Glomar response where there was a simply clerical error]; Electronic Privacy Info. Ctr. v. NSA, 678
F.3d 926 (D.C. Cir. 2012) [given detailed affidavit from NSA, court upheld Glomar response concerning
communications between Google and NSA regarding cyber-attacks on human rights activists in
China]; Shapiro v. CIA, 170 F.Supp.3d 147 (D.D.C. 2016) [request to obtain intelligence records of
Nelson Mandela of NSA upheld under Glomar]; Klayman v. CIA, 170 F.Supp.3d 114 (D.D.C. 2016)
[upheld Glomar response where to respond would reveal whether person worked for CIA and would
violate EO 13,526]; All Party Parliamentary Grp. v. U.S. Dept. of Defense, 134 F.Supp.3d 201, 206-08
(D.D.C. 2015) [documents leaked by Snowden did not constitute “official acknowledgment” of
information that would overcome Glomar response]; Judicial Watch, Inc. v. DOJ, 898 F.Supp.2d 93
(D.D.C. 2012) [Glomar response upheld in regard to production of documents concerning decision not
to prosecute Omar Ahmad because Exemptions 6 and 7(C) applied]; Amnesty Int’l USA v. CIA, 728
F.Supp.2d 479 (S.D.N.Y. 2010) [upheld use of Glomar response as long as it is tethered to one of the
nine Page 570 FOIA exemptions and here it related to Exemptions 1, 2, 3, 5 and EO No. 12,958]. The
“Glomar response,” however, has its limits. ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) [broad Glomar
response regarding drones not justified where there was official acknowledgement]; Pickard v. DOJ,
653 F.3d 782 (9th Cir. 2011) [where the DOJ officially confirmed person’s status as a CI a Glomar
response was inappropriate]; Bartko v. DOJ, 62 F.Supp.3d 134, 141-44 (D.D.C. 2014) [where
government acknowledged information previously, the court rejected a Glomar response based upon
the claim that the specific agency asserting Glomar never released the information and that the
government never officially released it]. See also Florez v. CIA, 829 F.3d 178 (2d Cir. 2016) [during
pendency of circuit court appeal FBI released some documents and court remanded back to district
court in light of disclosures to see if Glomar response continued to have validity].
(18) In Camera Review—Generally, courts will honor the request to have documents reviewed in camera
to determine the validity of the government’s claims. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir.
1978) [government acting in bad faith is not a prerequisite for in camera review]. But see ACLU v.
Dep’t of Defense, 628 F.3d 612, 626-27 (D.C. Cir. 2011) [lower court did not abuse its discretion when
it rejected in camera review where government affidavits were sufficiently detailed to assert privileges];
Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008) [lower court’s decision to uphold DEA’s assertion of
various privileges without reviewing documents in camera pursuant to 5 USC §552(a)(4)(B), or seeking
to segregate out portions of documents, upheld where petitioner sought documents after being denied
the renewal of her visa on grounds of money laundering].
(19) Exhaustion of Administrative Remedies—A court will not entertain an FOIA challenge until the
petitioner has exhausted the internal administrative appeals within the agency, including any dispute
over payment of fees. Rosenberg v. ICE, 954 F.Supp.2d 1 (D.D.C. 2013) [failure to pay search fees of
$157,000 constitutes failure to exhaust]; Jones v. DOJ, 653 F.Supp.2d 46 (D.D.C. 2009). [dismissed
complaint for failure to exhaust].
(20) Standard of Review—The courts will use the “clear error” standard when it is a factual question and
“de novo” review when it is a legal determination because the facts are not in controversy. News-Press
v. DHS, 489 F.3d 1173, 1187–89 (11th Cir. 2007).
(21) Fugitive Disentitlement Doctrine—The doctrine has been applied to bar access to information under
FOIA. Doyle v. DOJ, 668 F.2d 1365 (D.C. Cir. 1981) [plaintiff had outstanding bench warrant].
(22) Attorney’s Fees—For a discussion of attorney’s fees, see Chapter 11, ¶ XIII.B.4 (p.2050), infra.
(23) Mediation—Under the FOIA Improvement Act of 2016, PL 114-185, 130 Stat. 540 (June 30, 2016),
each agency “shall offer mediation services to resolve disputes … as a non-exclusive alternative to
litigation.” 5 USC §552(h)(3)
6.d. Subpoenas—INA §240(b)(1), 8 USC §1229a(b)(1), provides that the IJ has authority to issue
subpoenas for attendance of witnesses and presentation of evidence. 8 CFR §§1003.35(b), 287.4(a)(2),
1287.4(a)(2); EOIR’s Immigration Court Practice Manual, Chapter 4; Oliva-Ramos v. U.S. Att’y Gen., 694
F.3d 259, 272-74 (3d Cir. 2012) [violation of due process not to grant the issuance of subpoenas to prove
need to suppress evidence due to egregious and widespread Fourth Amendment violations where 8 CFR
§1003.35(b)(3) requires that the IJ “shall” issue subpoenas]; Malave v. Holder, 610 F.3d 483 (7th Cir.
2010) [reversed IJ who refused request to issue subpoena of husband who claimed in affidavit that
marriage was fraudulent]; Kaur v. INS, 237 F.3d 1098 (9th Cir. 2001) [reversed removal order and directed
IJ to issue subpoena to compel INS to produce resource material cited in INS’s referral of respondent’s
asylum application to IJ]; Matter of Duran, 20 I&N Dec. 1 (BIA 1989). But see Skorusa v. Gonzales, 482
F.3d 939, 943 (7th Cir. 2007) [IJ not required to continue case to obtain surveillance videos where
respondent subpoenaed DHS officer but videos were in the possession of the FBI, not DHS]. The
applicant must comply with all the requirements of the regulations to obtain the subpoena including that
he made diligent efforts to obtain the information prior to making the request. Shewchun v. Holder, 658
F.3d 557, 568-69 (6th Cir. 2011) [upheld denial by IJ of request for subpoena 5 months after close of
evidence when another DHS employee testified]; Page 571 Stolaj v. Holder, 577 F.3d 651, 659 (6th Cir.
2009) [upheld denial of subpoena for material witness]. And the burden is on the respondent to request
enforcement of a subpoena when there is noncompliance. Vidinski v. Lynch, 840 F.3d 912 (7th Cir. 2016)
[respondent was not deprived of a fair hearing where IJ relied on hearsay testimony of ICE agent who
interviewed ex-wife in marriage fraud case where respondent subpoenaed the ex-wife but never sought to
enforce subpoena pursuant to 8 CFR §1003.35(b)(6)]. A government agency may also be subpoenaed to
produce documents under the Federal Rules if there is separate federal litigation. See e.g., Yousuf v.
Samantar, 451 F.3d 248 (D.C. Cir. 2008), rev’d on other grounds, 560 U.S. 305 (2010) [DOS subject to a
motion to compel under Fed. R. Civ. P. 45 in alien tort action against former Somali official].
6.e. Depositions or Interrogatories— 8 CFR §§1003.35, 1240.7(c); Matter of R-, 5 I&N Dec. 612, 613–14
(BIA 1954); Shin v. Mukasey, 547 F.3d 1019, 1024–25 (9th Cir. 2008) [due process not violated where
deposition of corrupt DHS official who sold “green cards” was taken in consolidated cases for judicial
economy and used in respondent’s removal proceeding].
6.f. FBI Records Request—Pursuant to 28 CFR §16.32, the FBI has established a procedure to request an
FBI identification record or “rap sheet.” Must submit a written request accompanied by name, date and
place of birth and a set of fingerprints to: FBI, CJIS Division, 1000 Custer Hollow Road, Clarksburg, WV
26306. The fee must be submitted as a cashier’s check/money order made payable to the Treasury of the
U.S. If a lawyer is requesting the information, an affidavit from the client stating his authority should be
submitted.
6.g. Medical Records—Medical records may be obtained if they are sought in the assistance of the
petitioner’s case. Husayn v. Gates, 588 F.Supp.2d 7 (D.D.C. 2008) [Guantanamo detainee entitled to
medical records to prepare defense].
6.h. Jencks Act—Matter of C-, 8 I&N Dec. 696 (BIA 1960); Matter of L-, 9 I&N Dec. 14, 28 (BIA 1960);
Carlisle v. Rogers, 262 F.2d 19 (D.C. Cir. 1958); Great Lakes Airlines v. C.A.B. of U.S., 291 F.2d 354, 364
(9th Cir. 1961).
6.i. Privacy Act
S. Rep. 93-1183, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6916]; Cantor, Acting Chief
Privacy Officer, Privacy Policy Guidance Memorandum, 2017-01 (Apr. 27, 2017), AILA Doc. No.
17042801; Q&A;, Privacy Policy 2017-01 (Apr. 27, 2017), AILA Doc. No. 17042801.
(1) Generally—The Privacy Act covers statements recorded on Forms I-213 and I-263B, 8 CFR
§103.2(b)(16), as well as a copy of record of proceedings, 8 CFR §§292.4(b), 1292.4(b). Applicant has
the right to all nonconfidential records concerning himself. 8 CFR §103.42 referencing 6 CFR pt. 5; 8
USC §1361. The Privacy Act currently only applies, however, to USCs or LPRs. 5 USC §552a(d)(1);
Cudzich v. INS, 886 F.Supp. 101, 105 (D.D.C. 1995) [LPR who lost status ineligible to obtain records
under Privacy Act]; Ex. Order 13768 of Jan. 25, 2017, 82 FR 8799, 8802 (Jan. 30, 2017) at ¶14
[reversing 2007 Privacy Policy and excluding persons who are not USCs or LPRs from Privacy Act
regarding Personally Identifiable Information]; Memo, Kelly, Sec. DHS, Enforcement of the Immigration
Laws to Serve the National Interest (Feb. 20, 2017), ¶G, pp. 5-6, AILA Doc. No. 17021830; Cantor,
Acting Chief Privacy Officer, Privacy Policy Guidance Memorandum, 2017-01 (Apr. 27, 2017), AILA
Doc. No. 17042801; Q&A;, Privacy Policy 2017-01 (Apr. 27, 2017), AILA Doc. No. 17042801. This
means that persons who are not LPRs or USCs may only obtain records through the FOIA. They may
also still have Redress through DHS Trip. Q&A;, supra at 9-11. The changes in Privacy Policy 2017-01
do not affect the Judicial Redress Act which allows “covered persons” who are citizens of covered
foreign nations (generally EU countries) to obtain access or amendments to their records covered by a
DHS SORN (System of Records Notice) or to pursue judicial redress for access, amendment or
wrongful disclosure of such records. The 2017-01 Memo also does not disturb the Fair Information
Practice Principles in effect since 1973 that require certain conditions for the use and protection of
DHS irrespective of status. These include principles of transparency, individual participation, purpose
specification, data minimization, use limitation, data quality and integrity, security and accountability
and auditing. Q&A;, supra at 7-8. Page 572
(2) Legal Actions under Privacy Act
(a) Improper Disclosure—For USCs and LPRs an action may be brought against an agency for
improper disclosure of information. Quinn v. Stone, 978 F.2d 126 (3d Cir. 1992); Waters v.
Thornburgh, 888 F.2d 870 (D.C. Cir. 1989). It may be brought by an “individual,” 5 USC §§552a(b)-
(f), who is either USC or LPR. 5 USC §552a(a)(2). Soto v. U.S. DOS, 244 F.Supp.3d 207 (D.D.C.
2017) [dismissing complaint brought by NIVs seeking records of their denials because they were
neither USCs nor LPRs]. The action must be brought within 2 years of disclosure, 5 USC §552a(g)
(5), or if there was a misrepresentation, within 2 years of discovery of the misrepresentation. Lacey
v. U.S., 74 F.Supp.2d 13 (D.D.C. 1999). But the cause of action is subject to equitable tolling,
Rouse v. DOS, 567 F.3d 408, 415–17 (9th Cir. 2009) [doctrine of equitable tolling exists but did not
reach the claim], and is not jurisdictional. Baptiste v. Bureau of Prisons, 554 F.Supp.2d 1 (D.D.C.
2008). The elements of a Privacy Act claim are: (1) agency disclosure; (2) to an individual or
another agency; (3) of a “record” contained “in a system of records;” (4) which is unauthorized by
the individual; (5) is not within an exception; Chichakli v. Tillerson, 882 F.3d 229, 233-34 (D.C. Cir.
2018) [OFAC public listing of personal information of a designated national, including his Social
Security number, is a permissible “routine use” and the provision of plaintiff’s driver’s license to the
U.N. and international organizations by DOS was also permissible]; Makowski v. U.S., 27 F.Supp.3d
901, 909-12 (N.D. Ill. 2014) [where FBI sent fingerprints of USC born in India to ICE Law
Enforcement Support Center it did not violate the disclosure provision under 5 USC §552a(b)
because it fell within the “routine use” exception]; (6) has an adverse effect on the individual; and
(7) that the agency action was intentional or willful. Orekoya v. Mooney, 330 F.3d 1, 5–6 (1st Cir.
2003). The unauthorized release of one agency’s information by another agency to a third party is
actionable. 5 USC §552a(g); Fanin v. Dep’t of Veterans Affairs, 572 F.3d 868, 872–75 (11th Cir.
2009) [petitioner must prove “actual damages” which in the 11th Cir. means “pecuniary loss”];
Orekoya v. Mooney, 330 F.3d 1, 5–7 (1st Cir. 2003) [unauthorized release of INS information to an
individual’s employer by the Secret Service]. An aggrieved person is entitled to actual damages,
statutory minimum damages of $1,000, and attorney’s fees. Id. Monetary damages can be imposed
if: (1) the agency’s records are inaccurate; (2) the inaccurate record resulted in an adverse
determination; and (3) the agency’s acts or omissions were willful or intentional. Baptiste v. Bureau
of Prisons, supra. A Privacy Act action may be brought against DHS, FBI, and other federal
agencies to amend their records. 5 USC §552a(g)(2)(A); Schaeuble v. Reno, 87 F.Supp.2d 383
(D.N.J. 2000) [ordering FBI and INS to amend records to show that LPR’s conviction had been
vacated]. The Privacy Act has two major types of claims: (1) accuracy claims under 5 USC
§§552a(e)(5)–(6); and (2) access claims under 5 USC §552a(d)(1).
(b) Accuracy Claims—Each agency is required to maintain accurate records under 5 USC §552a(e)
(5) and not to disseminate the records unless they are accurate, 5 USC §552a(e)(6). Makowski v.
U.S., 27 F.Supp.3d 901, 912-15 (N.D. Ill. 2014) [USC born in India stated cause of action for
intentional and willful violation where agency was previously notified that he was USC and
nevertheless placed a detainer on him a second time causing him to remain in custody]. But see
Walia v. Holder, 59 F.Supp.3d 492, 501-03 (E.D.N.Y. 2014) [Privacy Act claim may only be brought
against the agency who was required to maintain the system of records (in this case DHS because
plaintiff was an employee) and not against the agency to whom the information was improperly
disclosed (in this case DOJ)]; Shearson v. Holder, 865 F.Supp.2d 850, 869-70 (N.D. Ohio 2011) [no
improper dissemination of person on Watch List]. Accuracy claims may be enforced in federal court,
5 USC §552a(g)(1)(C), Baptiste v. Bureau of Prisons, 554 F.Supp.2d 1 (D.D.C. 2008), as may
access claims 5 USC §552a(g)(1)(B), failure to amend individual records, 5 USC §552a(g)(1)(A),
and failure to comply with any other provisions or rules in a way that adversely effects an individual.
5 USC §552a(g)(1)(D). See generally NASA v. Nelson, 562 U.S. 134, 155-57 (2011); Does v. Chao,
540 U.S. 614, 618-19 (2004). But injunctive relief may not Page 573 be available for claims alleging
inaccurate record keeping, 5 USC §552a(g)(1)(C), although it may be available in suits to amend
records. §552a(g)(2). A plaintiff cannot bring an “accuracy claim” unless he has first asked the
agency to correct its records. Skinner v. DOJ, 584 F.3d 1093, 1096 (D.C. Cir. 2009); Samtmann v.
DOJ, 35 F.Supp.3d 82, 91-92 (D.D.C. 2014) [failure to file administrative demand pursuant to 5
USC §§552a(d)(2)-(3) is a failure to exhaust and that part of the case was dismissed].
(c) Access Claims—Each agency is also required to provide access to an individual’s records upon
request. 5 USC §552a(d)(1).
(3) Exemption from Disclosure—An agency may exempt certain systems of records from disclosure. 5
USC §552a(j), but there is a split in the circuits whether by doing so it may exempt itself from liability
under 552a(g). Compare Jacobs v. Bureau of Prisons, 845 F.Supp.2d 224, 228-29 (D.D.C. 2012)
[BOP has exempted PSI’s of incarcerated persons]; Abdelfattah v. DHS, 893 F.Supp.2d 75, 81 (D.D.C.
2012) [dismissing Privacy claims based upon failure to correct TECS] with Shearson v. DHS, 638 F.3d
498 (6th Cir. 2011) [permitting exemption from suit but only to extent that the records may be exempt
under subsection “j” and records that are nonexemptible or were exempt in a procedurally improper
manner may be the subject of suit].
(4) DHS Privacy Policies—Memo, Cantor, Acting Chief Privacy Officer, Privacy Policy Guidance
Memorandum, No. 2017-01 (Apr. 27, 2017), AILA Doc. No. 17042801[in following EO 13768 Sect.14
which directs agencies to “exclude” persons who are not USCs or LPRs from the protection of the
Privacy Act as to Personally Identifiable Information (PII)]. DHS, despite the acknowledged difficulty in
ascertaining USC/LPR status, will follow as guidelines the Fair Information Practice Principles and
noted that the prior Police Guidance Memorandum 2007-01/Privacy Policy Directive 262-12 is
inconsistent with the EO but that the 2008 Memo was not and is not being superseded or replaced; the
Memo also recognizes there are certain exceptions to the EO including the Judicial Redress Act of
2015, PL 114-126 (Feb. 24. 2016) extending provisions of the Privacy Act to non-USCs and non-LPRs
from the EU]; Privacy Policy Guidance Memorandum No. 2008-01/Privacy Policy Directive 140-06,
The Fair Information Practice Principles at http://www.dhs.gov/privacy.
(5) Privacy Impact Assessment (PIA); Data Collection Programs—DHS issues System of Record Notices
(SORN) in the Federal Register assessing the privacy impact for every system of records under its
control to ensure compliance with the Privacy Act and/or to exempt certain records. DHS Privacy
Office: Guide to Implementing Privacy (June 3, 2010), AILA Doc. No. 10110964 at p.13-16. For a
listing of many DHS programs regarding the Privacy Act see 78 FR 12337 (Feb. 22, 2013). For specific
DHS programs see e.g., PIA/Data Collection for Alien File, Index, and National File Tracking
System of Records, [DHS-001 regarding A files and transactions regarding individuals as they pass
through the U.S. immigration and inspection process], 78 FR 69864-72 (Nov. 21, 2013) updated 82 FR
43556-65 (Sept. 18, 2017) [include electronic as well as paper A file and include more data including
guardians in proceedings and information such as social media handles]; Alien Health Records
[DHS/ICE-013 records and documents regarding health screening, examination and treatment of
persons arrested and detained by ICE; HIPAA does not apply], 83 FR 12015-20 (Mar. 19, 2018)
[updating records to allow access by individual of medical records after release]; ACRIMe [DHS/ICE-
007–Alien Criminal Response Information Management System that receives and responds to
immigration status inquiries made by other agencies and supports the creation of lookout record for
FBI NCIC], 78 FR 10623-30 (Feb. 14, 2013); ADIS (Arrival and Departure Information System,
DHS/CBP/PIA-024(b) Apr. 28, 2017)), AILA Doc. No. 17051735; BCI (Border Crossing Information)
[DHS systems including TECS, IDENT, IAFIS, NGI, APIS, GES], 81 FR 89957 (Dec. 13, 2016); BPER
(Border Patrol Enforcement Records), 81 FR 72601-05 (Oct. 20, 2016) [track persons granted
parole in the US, track violators at POE, support reentry/found in arrests, provide criminal and
immigration history for background checks for immigration benefits]; Bonds Online System
(eBONDS, Phase II) [web-based system that allows surety agents and ERO to facilitate bond
management], AILA Doc. No. 13020651; CasePro (Center Adjudication System Electronic
Processing) [assists and compiles TPS, DED and DACA cases], Page 574 AILA Doc. No. 14020549;
CIDR (Citizenship and Immigration Data Repository), USCIS-012 [contains all CLAIMS, RAPS,
APSS, RNACS, eCISCOR, CIS, and FDNS-DS records for purposes of vetting USCIS applications,
detecting possible fraud by USCIS employees, and responding to requests for information], 83 FR
19082-87 (May 1, 2018); CIRS (DHS/CBP-024 Intelligence Records System), 82 FR 44198-202
(Sept. 21, 2017) [intelligence records including terrorist watchlist information, lost and stolen passports,
and U.S. visa, border, immigration and naturalization benefits]; Coast Guard-029 Notice of Arrival
and Departure, 80 FR 74116-20 (Nov. 27, 2015) [records of vessels, arrival information pertaining to
voyages, crewmembers, other individuals associated with the vessel, cargo and operational condition
of equipment]; Electronic Visa Update System (EVUS) System of Records. 81 FR 60371-76 (Sept.
1, 2016). [collect and maintain records on EVUS holders and families who are USCs and LPRs whose
names were provided to DHS as part of EVUS enrollment]; HSI Forensic Laboratory, 81 FR 45523-
27 (July 14, 2016) [retaining records of Homeland Security’s Forensic Lab for 20 years in significant
cases]; DIA, Foreign Intelligence and Counterintelligence Operations Records, 77 FR 43814 (July
26, 2012) [citizenship, passport numbers, reports of investigations and other DOD counterintelligence
information including counter-narcotics operations]; DIA, Security and Counterintelligence Records,
78 FR 68828 (Nov. 15, 2013) [all persons under the cognizance of DIA and persons about whom other
U.S. government agencies have requested investigative assistance]; E-Authentication Records
System of Records, 79 FR 46857 (Aug. 11, 2014) (incorporating E-Self Check, 76 FR 9604 (Feb. 16,
2011)) and also includes records that allow the public to authenticate their identities); E-Verify program
system of records, 79 FR 46852 (Aug. 11, 2014); 78 FR 43893 (July 22, 2013); 77 FR 47419-24 (Aug.
8, 2012) [using information from I-9s, from US-VISIT and ADIS records and allowing disclosure of
some of its records to DOJ, other appropriate agencies and entities, to federal, state, tribal, local,
international or foreign law enforcement agencies, to the American Association of Motor Vehicle
Administrators Network, and even to the news media and public under certain circumstances]; E-
Verify Self Check 76 FR 9034-38 (Feb. 16, 2011); it was then consolidated into E-Verify at 79 FR
63634-35 (Oct. 24, 2014); EID (Enforcement Integrated Data Base) system (that captures
information related to investigation, arrest, booking, detention and removal of persons encountered by
ICE), 76 FR at 37824 (June 28, 2011), Long v. ICE, 149 F.Supp.3d 39, 44-45 (D.D.C. 2015) [describing
EID system of records]; Electronic I-94, AILA Doc. No. 13032860; ENFORCE (ICE-011 Criminal
Arrest Records and Immigration Enforcement System of Records) (system of records regarding
identification, apprehension and removal of persons who commit unlawful entries or unlawful presence
in US, and identification and arrest of persons who commit DHS based crimes], 81 FR 72080-89 (Oct.
19, 2016); ESTA (Electronic System for Travel Authorization—regarding sharing of information with
National Counterterrorism Center) (June 5, 2013), AILA Doc. No. 13071641; 79 FR 65414-18 (Nov. 10,
2014) [expanding eligibility questions and data on ESTA applications]; FALCON Search & Analysis
System (FALCON-SA enables ICE to search, analyze and visualize volumes of existing information to
enforce and investigate violations of criminal and administrative law), 82 FR 20905—09 (May 4, 2017)
[updated system, see (Nov. 2, 2012), AILA Doc. No. 12110741, that will now ingest and interface with
other FALCON systems including FALCON—Data Analysis & Research for Trade Transparency
System (DARTTS) and FALCON-Roadrunner and FALCON Tipline (whose records, providing records
of calls and contacts with ICE on investigative leads, will now be art of FALCON-SA), Id.]; FDNS
Directorate, 77 FR 47411 (Aug. 8, 2012) [exempting system from certain provisions of the Privacy Act
see 6 CFR pt. 5, appx. C, para. 32; retaining records for 15 years from date of last interaction; and
allowing for the possibility of broad disclosure of information]; FOIA system within DHS for tracking
special FOIA requests by the Significant Interest Group, AILA Doc. No. 12122055; ICEPIC (ICE
Pattern Analysis and Information Collection) system (identifying suspect identities and discovering
possible nonobvious relationships among individuals and organizations that are indicative of violations
of customs and immigration laws as well as possible terrorist threats) and access to ICEPIC by state
and federal agencies through the Law Enforcement Information Sharing Service (LEIS Service), PIA
Update, ICEPIC (Oct. 2011), AILA Doc. No. 11102766; Page 575 Incident-Driven Video Recording
Systems (IDVRS) Evaluation (Privacy Assessment regarding the use of body-cameras by CBP
officers], AILA Doc. No. 18040336; IIDS (Integrated Decision Support Database which is a subset of
the EID database repository and it provides a continuously updated snapshot of selected EID data],
Long v. ICE, 149 F.Supp.3d 39, 44-45 (D.D.C. 2015) [describing IIDS system of records]; InfoPass
and the Customer Management Information System (June 6, 2013), AILA Doc. No. 13061149;
Intercountry Adoptions Security, 81 FR 78614-19 (Nov. 8, 2016) [updating DHS/USCIS records
including Hague Convention records]; LeadTrac System (DHS/ICE-015), 81 FR 52700 (Aug. 9, 2016)
[maintains records gathered for taking appropriate enforcement action]; License Plat Reader,
DHS/ICE/PIA-039a (Update) (Dec. 27, 2017), AILA Doc. No. 18012930 [acquisition from a commercial
service database that includes toll road cameras, parking lot cameras, vehicle repossession
companies and law enforcement agencies in 25 states and 24 of the 30 most populous MSAs]; NSA
Operations Records, 80 FR 63749 (Oct. 21, 2015) [any type of information acquired or maintained
about individual]; ORR, 81 FR 46682-93 (July 18, 2016) [notice of 5 new SORNs—Division of
Children’s Services Records (09-80-0321); Internet Refugee Arrivals Data System (09-80-0325); ORR
Repatriation Program Records (09-80-0327); Unaccompanied Refugee Minors Records (09-80-0329);
ORR Refugee Suicide Database (09-80-0388)—treating all under Privacy Act because there is a mix
of USCs/LPRs and non-US persons]; Refugee Case Processing and Security Screening
Information, 81 FR 72075-80 (Oct. 19, 2016) [purpose is to collect, use, maintain, disseminate and
store adjudications on refugee applications, follow to join for refugee resettlement and AOS, EA and I-
131 travel]; RAVU [Refugee Access Verification Unit regarding affidavits of relationship of IR family
member in U.S. assisting refugee family abroad], AILA Doc. No. 13112745; SAVE update, 81 FR
78619 (Nov. 8, 2016) [updates include I-864 sponsors and benefit requestors, spouses and children];
SAVE update [update for photo matching tool and G-845/Document Verification Request] (Apr. 19,
2013), AILA Doc. No. 13042544; SAVE program system of records, 77 FR 47415-19 (Aug. 8, 2012)
[allowing for the possibility of broad disclosure of records]; Secure Flight DHS/TSA-619 [allows for the
collection and maintenance of records on aviation passengers], 80 FR 233 (Jan. 5, 2015); SMART
(Standard Management Analysis Reporting Tool) that creates and compiles reports on NIV and IV
benefits, AILA Doc. No. 13090540; TPS (FDNS/DHS/USCIS/PIA-013(a), Apdx. B. regarding
background investigations of TPS applicants), AILA Doc. No. 13091752; TSA Pre[check] (allows DHS
to collect data on persons who voluntarily submit information to TSA), 78 FR 55274-78 (Sept. 10,
2013); USCIS-007 Benefit Information System [updating benefit requests information submitted for
naturalization, LPR, asylum, refugee status and other immigrant and nonimmigrant benefits], 81 FR
72069-75 (Oct. 19, 2016); VSPTS-Net 2.0 (Visa Security Program Tracking System-Network) that
allows HIS and CBP to identify and track persons ineligible due to “criminal history, terrorism
associations, or other security-related grounds” (Jan. 17, 2013), AILA Doc. No. 13012949. It may also
retire a system of records by issuing a Notice of Removal of a Privacy Act System of Records in the
Federal Register.
(6) Exemptions from Privacy Act—ADIS (Arrival and Departure Information System) exempt from certain
provisions of the Privacy Act, 78 FR 31955 (May 28, 2013); 81 FR 14947-98 (Mar. 21, 2016); Alien
File, Index and National File Tracking System of Records, 76 FR 34233 (June 13, 2011)
(exempting certain classified records only); ATSR (Automated Targeting System of Records), 75 FR
5487 (Feb. 3, 2010); BCISR (Border Crossing Information System of Records), 78 FR 31958 (May 28,
2013); 75 FR 5491 (Feb. 3, 2010); 81 FR 14947-98 (Mar. 21, 2016); CIDR (Citizenship and
Immigration Data Repository System of Records), 75 FR 81371 (Dec. 28, 2010); Civil Rights and
Civil Liberties Records System, 76 FR 44451 (July 26, 2011); CIRS (DHS/CBP-024 Intelligence
Records System), 82 FR 44124-26 (Sept. 21, 2017) [exempting portions of the SORN because of
criminal, civil, and administrative enforcement requirements]; Coast Guard-031 USCG Law
Enforcement, 82 FR 15981-82 (Mar. 31, 2017) [exempting records because of criminal, civil and
administrative enforcement]; Coast Guard-029 Notice of Arrival and Departure SORN, 80 FR
74018-20 (Nov. 27, 2015); 82 FR 32613-14 (July 17, 2017) [asserting privacy exemptions for SORN];
DHS/USCIS–016; DHS/CBP-23 Border Patrol Enforcement Records, 81 FR 72551-52 (Oct. 20,
2016) [exempting some national security, law Page 576 enforcement, immigration and intelligence
records from Privacy Act]; 81 FR 92549-50 [adding additional sections under 552a subject to
exemption]; E-Verify, 78 FR 43893-98 (July 22, 2013) [allowing disclosure to any DHS employee];
ESTA (Electronic System for Travel Authorization), 77 FR 44642-47 (June 30. 2012), 76 FR 67751
(Nov. 2, 2011); FALCON-SA (DHS/USICE-016 FALCON-Search and Analysis System of Records), 82

FR 20844-46 (May 4, 2017) [proposed exemption from Privacy Act]; Forensic Laboratory System of
Records (DHS-014 HSI Forensic Laboratory), 79 FR 18441-42 (Apr. 2, 2014); ICE-015 LeadTrac
System, 81 FR 52593 (Aug. 9, 2016) [contains aggregated data from ICE and DHS IT systems as well
as data for analysis from various public, private, and commercial sources during the course of an
investigation or analytical project]; IEORSR (Immigration and Enforcement Operational Records
System of Records), 75 FR 10633 (Mar. 9, 2010); Terrorist Screen Database System of Records,
81 FR 19857-58 (Apr. 6, 2016), 76 FR 39315 (July 6, 2011); TRACS, 74 FR 63946 (Dec. 4, 2009);
009-Compliance Tracking and Management System, 75 FR 51619 (Aug. 23, 2010) (relating to E-
Verify compliance); TSA Pre[check], 79 FR 2 (Jan. 2, 2014) (relating to exemptions for database
regarding persons who apply for the TSA Pre[check] system].
(a) There may also be an “exemption” based upon the claim that an agency does not maintain a
system of records and therefore its records fall outside of the Privacy Act. See e.g., Mobley v. CIA,
806 F.3d 568, 587-88 (D.C. Cir. 2015) [DIA successfully claimed that its Web Intelligence Search
Engine or WISE fell outside the reach of the Privacy Act because it is not a system of records].
(7) Counterterrorism Information—The AG established guidelines for information sharing with the
National Counterterrorism Center (NCTC)—”Guidelines for Access, Retention, Use and Dissemination
by the National Counterterrorism Center and other Agencies of Information in Date sets Containing
Non-Terrorism Information,” http://www.nctc.gov/docs/NCTCGuidelines.pdf; EO 13388 (Further
Strengthening the Sharing of Terrorism Information to Protect Americans) (Oct. 27, 2005).
(8) Processing Privacy Act Complaints Within DHS—DHS has set guidelines, including programs such
as DHS Trip to insure redress for complaints from individuals who allege Privacy Act violations. DHS
Privacy Office: Guide to Implementing Privacy (June 3, 2010), AILA Doc. No. 10110964at 19-20.
6.j. Right to Production of Favorable Evidence—In Brady v. Maryland, 373 U.S. 83, 87 (1963), prosecutors
in a criminal trial have the duty to disclose to the defense “evidence favorable to an accused.” In Giglio v.
U.S., 405 U.S. 150, 154-55 (1972), the government in a criminal trial likewise required prosecutors to
disclose “any understanding or agreement as to a future prosecution” that the government has made with
a trial witness. See Dent v. Holder, 627 F.3d 365, 371-76 (9th Cir. 2010) [person in removal proceedings
should “routinely” receive his A file pursuant to 8 USC §1229a(c)(2)(B) because the statute requires the
AG to produce to the respondent “any other records and documents, not considered … to be
confidential”]; Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) [ordering IJ to require the
government to produce “all forms referencing petitioner’s departure from the United States” where
petitioner was seeking cancellation of removal and claimed he did not depart under VD]; U.S. ex rel.
Schlueter v. Watkins, 67 F.Supp. 556, 561 (S.D.N.Y.), aff’d, 158 F.2d 853 (2d Cir. 1946); Demjanjuk v.
Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993) [the Brady rule covers denaturalization and extradition cases
where the government seeks denaturalization based on proof of alleged criminal activities]. See also
Matter of M-A-M-, 25 I&N Dec. 474, 480 (BIA 2011) [reading broad language in 8 CFR §1240.2(a) as a
DHS duty to disclose all documents in its possession that may affect the removal proceeding in the
context of competency in removal]; Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1183-84 (9th Cir.
2018) [reversed removal where IJ/BIA failed to obtain most current mental health records from DHS
before determining competency]. Federal Rules do not apply in immigration proceedings. Matter of
Benitez, 19 I&N Dec. 173 (BIA 1984) [upholding denial of continuance until FOIA response completed].
Right to discovery in regard to in camera submission made by the Service. Naji v. Nelson, 113 FRD 548
(N.D. Ill. 1986) [requiring INS, in challenge to §245 denial, to produce a list of documents with brief
description that were submitted in camera by INS]. But see Munoz-Santana v. INS, 742 F.2d 561 (9th Cir.
1984) Page 577 [too burdensome to require government to produce records as to approvals and denials
of I-212 applications where records had to be hand searched]; U.S. v. Demjanjuk, 838 F.Supp.2d 616,
626-30 (N.D. Ohio 2012) [in second denaturalization proceeding the failure of the government to disclose
a speculative report that the KGB may be manipulating U.S. authorities to go after anti-Soviet dissidents
did not have to be disclosed under Brady]
6.k. Right to Production of Derogatory Evidence—Under 8 CFR §103.2(b)(16)(i) the government is required
to provide to an applicant or petitioner derogatory information where a decision will be adverse. Melendez
v. Sec. of DHS, 215 F.Supp.3d 1266, 1270 (M.D. Fla. 2017) [where J-1 seeking AOS was told he did not
qualify without a waiver but never provided the “derogatory” information specifying why he needed the
wavier, 8 CFR §103.2(b)(16)(i) was violated]; Ilyabaev v. Kane, 847 F.Supp.2d 1168 (D. Ariz. 2012)
[USCIS required to provide notice of revocation of I-140 and denial of I-485 to beneficiary of I-140
because he was also an applicant under the regulation due to his I-485]. But see Rajasekaran v. Hazuda,
806 F.3d 1142, 1144-45 (8th Cir. 2015) [no jurisdiction to review whether USCIS exceeded its regulatory
authority in revoking I-140 by not providing the employer the right to examine the basis for its decision
pursuant to 8 CFR §103.2(b)(16) because revocation is immune from judicial review]. But what
information is the agency required to produce? Is it the original documents that the agency relies on or a
summary? CompareGhafoori v. Napolitano, 713 F.Supp.2d 871 (N.D. Cal. 2010) and Matter of Estime, 19
I&N Dec. 450 (BIA 1987) providing that the actual derogatory documents should be provided withGhaly v.
INS, 48 F.3d 1426 (7th Cir. 1995) and Brinklys v. Johnson, 175 F.Supp.3d 1338, 1353-56 (M.D. Fla. 2016)
reading 8 CFR §103.2(b)(16) as only requiring the agency to summarize the contents of the derogatory
information. See also Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016) [reading 8 CFR §103.2(b)(16)(i) as
requiring notice of revocation of first employer’s I-140 petition to the second employer where a beneficiary
ports under AC21 because the second employer in effect steps into the shoes of the original employer
and therefore is an affected party under 8 CFR §103.3(a)(1)(iii)(B) who should have been given notice
under 8 CFR §205.2(b)]; Mantena v. Johnson, 809F.3d 721 (2d Cir. 2015) [ 8 CFR §103.3(a)(1)(iii)(B)
which provides that a beneficiary is not an affected party and 8 CFR §205.2(b) which provides that only
the petitioner receives notice of revocation cannot be read in a post-porting/AC21 world to deprive notice
to either the second petitioner or the beneficiary where “porting” has occurred]; Ilyabaev v. Kane, 847
F.Supp.2d 1168 (D. Ariz. 2012) [USCIS required to provide notice of revocation of I-140 and denial of I-
485 to beneficiary of I-140 because he was also an applicant under the regulation due to his I-485]. But
see Sehgal v. Johnson, 105 F.Supp.3d 860, 868-69 (N.D. Ill. 2015), aff’d sub nom. Sehgal v. Lynch, 813
F.3d 1025 (7th Cir. 2016) [no due process violation where USCIS in its NOID did not provide a copy of the
x-wife’s letter stating marriage was fraudulent but recited the entire letter in the NOID]; Opoku-Agyeman v.
Perez, 886 F.Supp.2d 1143, 1148-50 (W.D. Mo. 2012) [agency only required to produce evidence that was
basis for NOID and not all evidence it had]. Applicant need not file a FOIA request to obtain the
information. Matter of Bouzoumita, No. 79 424 306 (BIA, unpublished, Dec. 8, 2006). See also Chapter 6,
¶ J.1 (p.1364), infra, for a discussion of petition denial based on adverse information.
6.l. Right to Production of Application in Cases Where Application Is Renewed in Removal Proceedings—
Under a number of regulations, a respondent in a removal proceeding is permitted to “renew” his USCIS
application before an IJ. This includes such applications as TPS, AOS, and joint petitions to remove
conditions as spouse or investor. In Matter of Henriquez Rivera, 25 I&N Dec. 575 (BIA 2011), the BIA
determined, in the context of TPS, that an IJ could require DHS to produce the TPS application, even if
the IJ could not compel DHS to produce the entire administrative record. Matter of Henriquez Rivera, 25
I&N Dec. 575 (BIA 2011) [vacating the IJ’s decision mandating that DHS provide the entire administrative
record of the TPS denial to the court, but noting that the IJ has the authority to require DHS to produce the
TPS application filed by respondent]. For additional details, see “DHS Production of Application,” Chapter
8, Section I.F (p.1623), infra.
6.m. Classified Information—An applicant or petitioner may also be unable to review classified records that
include the record of proceedings, and the records of other agencies in the possession Page 578 of DHS
or EOIR. 8 CFR §103.2(b)(16) [classified record of proceedings]; 8 CFR §103.42 referencing 6 CFR pt. 5
[DHS records]; 8 CFR §103.42 referencing 6 CFR pt. 5 [records of other agencies in the possession of
DHS that are classified].
6.n. Access to Visa Records—Where DHS seeks to remove someone who claims he is lawfully present by
virtue of a prior admission, the applicant “shall have access to [her] visa or other entry document, if any,
and any other records and documents … pertaining to the [person’s] admission or presence in the U.S.”
that are not confidential. INA §240(c)(2), 8 USC §1229a(c)(2). Accord INA §291, 8 USC §1361.
6.o. Prehearing Conference and Pretrial Stipulations—Pretrial activity may be required by the IJ, including
the production of documents prior to the hearing. 8 CFR §1003.21; Immigration Court Practice Manual,
Chapter 4.18.
6.p. Data Sharing Between EOIR and DHS—EOIR has entered into a MOA to share case data with DHS
and to obtain data from ICE and USCIS. The agreement limits the exchange of certain information
including asylum/withholding/CAT, trafficking victims, T & U and VAWA self-petitioners. MOA Between
DHS and DOJ, EOIR Regarding the Sharing of Information on Immigration Cases (Oct. 15, 2012), AILA
Doc. No. 13050148
6.q. EOIR “I³”—EOIR has maintained a call in number 1-800-898-7180 to obtain information regarding a
person’s status before the immigration court (e.g., in removal proceeding, a final order before an IJ, a
dismissal by the BIA or not in removal proceedings). EOIR has also launched a website to combine this
information together with eRegistry and eFiling in a system called I³ (“I-cubed”). FAQs, EOIR, Internet
Immigration Information (I³) (May 4, 2015), AILA Doc. No. 15050407.
6.r. Federal Records Act—The Act strictly limits the circumstances under which records can be destroyed or
removed from federal custody. 44 USC §3105(1). The Secretary of the agency concerning the records
and the national Archivist are responsible for ensuring that if records are removed or efforts made to
destroy them that they will take remedial steps and when necessary initiate legal action through the AG to
recover the records. 44 USC §3106. Where the head of the agency and the Archivist fail to initiate an
action through the AG there is a private right of action to force them to take the appropriate action. Judicial
Watch, Inc., v. Kerry, 844 F.3d 952, 954 (D.C. Cir. 2016) [the APA may be used to compel an agency head
and national Archivist to take enforcement action to recover federal records through the Federal Records
Act].
7. Hearings
7.a. Generally—Hearing is conducted before an IJ, INA §240, 8 USC §1229a, which may include the Chief
IJ. Demjanjuk v. Mukasey, 514 F.3d 616 (6th Cir. 2008) [Chief IJ was IJ within the meaning of the
definition of IJ under INA §101(b)(4), 8 USC §1101(b)(4) and may try cases]; 8 CFR §1003.9(b)(5). DHS
may lodge additional charges. 8 CFR §1003.30, 8 CFR §1240.10(e) [“At any time during the proceeding,
additional or substituted charges of inadmissibility and/or deportability may be lodged by the Service in
writing”]. Or amend the charges. Urbina v. Holder, 745 F.3d 736, 741 (4th Cir. 2014) [rejected statutory
argument that ICE could not amend charges]. See also Dormescar v. U.S. Att’y Gen., 690 F.3d 1258 (11th
Cir. 2012) [the regulation permits DHS to amend the NTA to reflect that the removal proceedings are
based on deportability rather than inadmissibility]; Blanco v. Holder, 624 F.3d 265, 273-74 (5th Cir. 2010)
[may amend NTA on remand as long as BIA did not limit remand to preclude it]; Duhaney v. U.S. Att’y
Gen., 621 F.3d 340, 345-46 (3d Cir. 2010) [not res judicata where DHS amended charges to include
convictions that were not originally charged but were disclosed during hearing on 212(c) relief and were
not made the subject of a subsequent removal proceeding]; Magasouba v. Mukasey, 543 F.3d 13, 15–16
(1st Cir. 2008) [not due process violation to allow DHS to amend NTA to allege other aggravated felony
grounds when DHS acknowledged previous allegations related to different aggravated felony and CIMT
were insufficient and respondent given sufficient time to respond]; Channer v. DHS, 527 F.3d 275, 280–82
(2d Cir. 2008) [rejecting idea that DHS was required to bring all charges when available and rejecting res
judicata claim on theory that DHS could have brought all charges under first NTA that was subsequently
vacated]; Young Wong Park v. U.S. Att’y Gen., 472 F.3d 66, 73 (3d Cir. 2007) Page 579 [rejecting claim of
judicial estoppel where DHS amended charge to include aggravated felony after remand where CIMT
previously alleged]. Respondent may be given a reasonable continuance to respond to additional
charges. 8 CFR §1003.30. Respondent, of course, must also have notice of all charges. 8 CFR
§1240.10(e). Zamora-Morel v. INS, 905 F.2d 833, 839 (5th Cir. 1990) [where INS withdrew former INA
§241(a)(11) charge based on a drug conviction, BIA could not rely upon it as a basis to deny relief]; Matter
of Ching, 12 I&N Dec. 710 (BIA 1968). Additional charges may be lodged by motion to reopen after initial
charge terminated because convictions vacated. DeFaria v. INS, 13 F.3d 422 (1st Cir. 1993). ICE’s
request to amend charges after case remanded by BIA not barred by res judicata. Valencia-Alvarez v.
Gonzales, 469 F.3d 1319, 1323–24 (9th Cir. 2006) [where BIA decision was not final and case remanded
to IJ, respondent’s res judicataargument failed as to ICE’s amendment of the NTA]. See also Maldonado
v. U.S. Att’y Gen., 664 F.3d 1369 (11th Cir. 2011) [no res judicatabar where applicant charged on a new
ground of aggravated felony that did not exist at time of original proceedings]. But see Bravo-Pedroza v.
Gonzales, 475 F.3d 1358 (9th Cir. 2007) [rejecting argument of prosecutorial discretion and barring DHS
counsel from instituting new removal proceeding on charges that could have been brought in prior
proceeding that was final]. See in this section “Res Judicata,” ¶ 4.f (p.523), supra.The IJ may not amend
the charges sua sponte. Lazaro v. Mukasey, 527 F.3d 977, 980–81 (9th Cir. 2008) [remanding case to
determine whether IJ had authority to amend the charges sua sponte or whether such action conflicted
with 8 CFR §1240.10(e). A respondent may waive his right to a hearing. Muiruri v. Lynch, 803 F.3d 984,
986-87 (8th Cir. 2015) [respondent waived his right to a hearing where he asked IJ to grant motion to
suppress and if not consider the evidence he presented herein].
7.b. Pleading Stage and Evidentiary Stage—Pursuant to 8 CFR §1240.10(c), the IJ requires the respondent
to plead to the NTA. “If the respondent admits the factual allegations and admits his or her removability,
under the charges and the immigration judge is satisfied that no issue of law or fact remain, the
immigration judge may determine that removability as charged has been established by the admissions of
the respondent.” If the IJ is not satisfied or other material issues remain, he shall receive evidence on the
charges pursuant to 8 CFR §1240.10(d). Perez-Mejia v. Holder, 663 F.3d 403, 409-17 (9th Cir. 2011)
[concessions and admissions by respondent or his counsel at the pleading stage are binding to establish
removability without more]; Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986) [“Absent egregious
circumstances, a distinct and formal admission made before, during, or even after a proceeding by an
attorney acting in his professional capacity binds his client as a judicial admission.”]. Counsel should be
wary of conceding charges in the NTA. Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011)
[admission to alien smuggling by petitioner’s counsel in motion to change venue was struck where it was
factually untrue and ineffective assistance of counsel]. Admissions may be withdrawn based on
“egregious circumstances.” Matter of Velasquez, 19 I&N Dec. at 382. “Egregious circumstances” include:
(1) to prevent an unjust result, including an inadvertent admission OR an intervening change in law; (2)
the admissions were factually untrue or incorrect; and (3) the result of unreasonable professional
judgment. Santiago-Rodriguez v. Holder, 657 F.3d 820, 831-32 (9th Cir. 2011). But see Vanegas-Ramirez
v. Holder, 768 F.3d 226, 233-37 (2d Cir. 2014) [despite assumption that respondent was subject to
egregious constitutional violation permitting suppression under the Fourth Amendment, the respondent’s
decision to voluntarily concede removability because he believed it would increase his chances of
obtaining a change of venue was an independent source of information that could be used].
7.c. Procedural Issues at Hearing—EOIR has issued a Practice Manual that details the procedures to be
used in immigration courts throughout the U.S. It replaces local rules with unified court rules such as a 15-
day (instead of a 10-day) filing requirement for documents and motions to be heard prior to trial.
Immigration Court Practice Manual §§3.1(b)(i)–(ii); Memo [OPPM 08-03], Neal, Chief IJ, EOIR (Apr. 23,
2008), AILA Doc. No. 08042860. A table listing the various filing deadlines can be found in Appendix C
(p.2219).
7.d. Shackling of Respondents at Hearing—A successful challenge has been brought to the ICE policy of
shackling respondents in a removal hearing without an individualized determination of risk. Reid v.
Donelan, 2 F.Supp.3d 38 (D.C. Mass. 2014) [“an individual assessment [by ICE] is required before a
detainee may be shackled during immigration proceedings”]. See also, Abadia-Peixoto v. DHS, No. 3:11-
cv-4001 RS (N.D. Cal. Jan. 30, 2014) [class action requiring that Page 580 detained respondents not be
restrained/shackled during bond and merits hearings in San Francisco]. However, the decision outside of
San Francisco to shackle detainees will be decided on a case-by-case basis. Minutes, AILA ICE Liaison
(Apr. 10, 2014) at #20, AILA Doc. No. 14102844. See also U.S. v. Sanchez-Gomez, 859 F.3d 649 (9th Cir.
2017) (en banc) [defendants in pretrial, trial or sentencing, with or without a jury may not be subject to a
policy of shackling in the courtroom because a district court must make an individualized decision that a
compelling government purpose would be served and that shackling is the least restrictive means of
maintaining security], vacated as moot, 584 U.S. __, 138 S.Ct. 1532 (2018). But see U.S. v. LaFond, 783
F.3d 1216, 1225 (11th Cir. 2015) [defendant not entitled to an individualized shackling determination at
sentencing phase].
7.e. Closed Hearings or Hearings Open to the Public
(1) Hearings are open to the public with limited exceptions as follows: (1) case involves information
subject to a protective order; (2) cases involves an abused spouse or child unless the abused
respondent gives consent, INA §216(c)(4); 8 CFR §1003.27(c); (3) VAWA case; (4) IJ grants an oral or
written motion by a party to close the case; (5) IJ makes a determination to close a hearing to protect
witnesses, parties to the case, or the public interest; (6) IJ closes the hearing or limits number in
attendance due to physical facilities and available space; and (7) respondent in an asylum case
requests the hearing be closed. Fact Sheet, EOIR, Observing Immigration Court Hearing (Jan. 2018),
AILA Doc. No. 18020130.
(2) Procedure re Right to Attend Hearing—The public need not notify the immigration court in advance to
visit a courtroom, EOIR, Fact Sheet, Observing Immigration Court Hearings (Sept. 9, 2010), AILA Doc.
No. 10092236. But EOIR encourages the public to contact EOIR’s Office of Communications and
Legislative Affairs to coordinate the visit. Fact Sheet, EOIR, Observing Immigration Court Hearing
(Jan. 2018), AILA Doc. No. 18020130.If the respondent is detained, the public should contact DHS or
the detention facility to learn of any security clearance requirements to enter the building. The public
may not use an cameras or recording devices in the court room and when courtroom space is limited
the media has priority. Id.
(3) On Sept. 21, 2001, the Chief IJ issued a directive to all IJs requiring that removal hearings be closed
to the public and the press in so-called “special interest” cases. The directive has been successfully
challenged on First Amendment grounds. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002)
[“democracies die behind closed doors”]; Haddad v. Ashcroft, 221 F.Supp.2d 799 (E.D. Mich. 2002)
[ordering the government to release respondent from detention or hold a new detention hearing that is
open to the public]. But see North Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002)
[upholding the constitutionality of the directive and disagreeing with Detroit Free Press]. Also an IJ may
not improperly close a hearing in violation of the First or Fifth Amendment. Stevens v. Holder, 950
F.Supp.2d 1282 (N.D. Ga. 2013) [denied motion to dismiss First and Fifth Amendment claims of
research professor barred from IJ’s courtroom].
7.f. Right to Counsel
INA §§240(b)(4)(A), 292, 8 CFR §§292, 1240.3, 1292
(1) In General—Respondent has a right to representation by competent counsel. Olvera v. INS, 504 F.2d
1372 (5th Cir. 1974). The right to obtain counsel at a person’s own expense is “fundamental” and a
“due process” right that “must be respected in substance as well as in name.” Orantes-Hernandez v.
Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990) (quoting Baires v. INS). It is “an integral part of the
procedural due process to which the alien is entitled.” Saakian v. INS, 252 F.3d 21, 24 (1st Cir. 2001)
[quoting 7th Circuit in Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993)]. Respondents have “a
constitutional right to counsel based on the Fifth Amendment’s guarantee of due process of law.”
Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005); Molina v. Holder, 763 F.3d 1259, 1263 (10th Cir.
2014) [aliens in removal proceedings enjoy a Fifth Amendment right to effective representation by their
retained counsel]; U.S. v. Campos-Asencio, 822 F.2d 506 (5th Cir. 1987) [denial of right to counsel
violates Fifth Amendment]. The right extends to inadmissible as well as removable aliens. Dakane v.
U.S. Att’y Gen., 399 F.3d 1269, 1272–75 (11th Cir. 2005) [relied on Lozada analysis but found no
prejudice because defective performance did not affect the outcome of the proceeding]. A Page 581
person’s due process right also extends to the right to receive notice of legal assistance. Leslie v. U.S.
Att’y Gen., 611 F.3d 171 (3d Cir. 2010) [IJ failure to properly notify respondent of the availability of free
legal services required reversal and no showing of prejudice was necessary because the agency’s
regulation was to protect fundamental statutory and constitutional rights]. A person’s due process right
to obtain counsel also includes a right to competent representation from retained counsel and a person
is denied due process when his attorney provides ineffective assistance. Contreras v. U.S. Att’y Gen.,
665 F.3d 578, 584-88 and n.3 (3d Cir. 2012) [noting that a majority of the circuits have held that a claim
of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment
as a violation of due process but holding it does not apply to pre-removal ineffective assistance in the
handling of a LC and visa petition]; Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 978 (9th Cir.
2008) [“We have repeatedly held that the Fifth Amendment guarantee of procedural due process,
including the right to competent assistance, extends to individuals seeking discretionary relief from
removal”]; Fadiga v. U.S. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) [a claim of ineffective assistance
of counsel is cognizable under the Fifth Amendment as a violation of due process]; Ray v. Gonzales,
439 F.3d 582, 587 (9th Cir. 2006) [respondent denied due process when 2 attorneys failed to properly
file motions to reopen]. But the due process violation may not extend to incompetence of counsel in
matters that occur prior to the removal hearing even if they affect the hearing. Contreras, supra.;
Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050-51 (9th Cir. 2008) [failure to properly file visa petition
before INA §245(i) deadline did not relate to removal proceeding and therefore did not implicate the
Fifth Amendment]; Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004) amended sub nom. Lara-
Torres v. Gonzales, 404 F.3d 1105 (9th Cir. 2005) [ineffective representation prior to commencement of
removal proceedings did not violate due process].The denial of a continuance to obtain counsel may
violate statutory and regulatory right to counsel, Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012)
[denial of counsel, unlike ineffective assistance of counsel, does not require a showing of prejudice;
citing other circuits]; Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074 (9th Cir. 2007) [cancellation
applicant denied statutory right to counsel where he sought brief continuance for new attorney to
familiarize himself with the case]; Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. 2007) [where
respondent requested continuance because lawyer was in the building but not present, his right to
counsel was violated], and may violate due process. Montes-Lopez v. Gonzales, 486 F.3d 1163 (9th
Cir. 2007) [reversing BIA decision issued AWO that failed to address denial of counsel where
respondent forced to proceed pro se because counsel was temporarily suspended]; Gjeci v. Gonzales,
451 F.3d 416 (7th Cir. 2006) [due process violated when IJ refused to grant continuance after
respondent’s counsel withdrew, where it was clear respondent did not understand the difficulties he
was facing in regard to documents, including those in the possession of former counsel]; Biwot v.
Gonzales, 403 F.3d 1094, 1098–101 (9th Cir. 2005)[due process violated where detained respondent
given only 5 working days to find counsel]; Lin v. Ashcroft, 377 F.3d 1014, 1032–34 (9th Cir. 2004)
[reversing denial of motion to reopen where minor’s counsel was ineffective and IJ refused to continue
case for minor to obtain competent counsel]; Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985);
Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975). Denial of right inherently prejudicial.
Cheung v. INS, 418 F.2d 460 (D.C. Cir. 1969); Jiang v. Houseman, 904 F.Supp. 971, 979–80 (D. Minn.
1995) [no showing of prejudice necessary]. See also Garcia-Guzman v. Reno, 65 F.Supp.2d 1077,
1090 (N.D. Cal. 1999) [INS conduct amounted to a “shocking interference with petitioner’s attorney
client relationship” where IJ denied change of venue]; Molaire v. Smith, 743 F.Supp. 839 (S.D. Fla.
1990).
But see: Singh v. Lynch, 803 F.3d 988, 993 (8th Cir. 2015) [no Fifth Amendment right to effective
assistance of counsel in a removal proceeding]; Massis v. Mukasey, 549 F.3d 631, 637 (4th Cir. 2008)
[rejecting petitioner’s ineffective assistance of counsel claim because ineffective assistance does not
deprive a respondent of due process]; Jezierski v. Mukasey, 543 F.3d 886, 888–91 (7th Cir. 2008) [no
statutory or constitutional right to reopen a case due to ineffective assistance of counsel and court
lacks jurisdiction to review the denial]; Rafiyev v. Mukasey, 536 F.3d 853, 859–61 (8th Cir. 2008) [no
due process right to effective assistance of counsel in a removal proceeding but remanding for a
determination whether there was an administrative right]; Afanwi v. Mukasey, 526 F.3d 788, 796–99
(4th Cir. 2008) [no constitutional right to effective assistance of private counsel in removal proceedings
because there is Page 582 no state action]. Due process also not implicated in certain circumstances.
Calla-Collado v. U.S. Att’y Gen., 663 F.3d 680, 685 (3d Cir. 2011) [transfer to Louisiana where
petitioner had no contacts and was forced to obtain less effective counsel does not violate his
constitutional or other rights; nor did lawyer’s decision to concede removability to obtain change of
venue]; Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008) [reliance on deficient advice of a
nonlawyer/immigration consultant does not implicate due process because it did not affect the
fundamental fairness of the proceeding]; Jiang v. Mukasey, 522 F.3d 266 (2d Cir. 2008) [tactical
decision to withdraw asylum/withholding to protect eligibility for immigrant visa was not ineffective
assistance of counsel]; Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) [no substantive due process right
violated in regard to ICE’s interference in parent’s relationship with their children and no pattern-or-
practice claim may be brought to challenge ICE raids that resulted in precluding counsel, transferring
respondents out of state and away from counsel]; Zheng v. Gonzales, 464 F.3d 60, 62–63 (1st Cir.
2006) [no due process violation where IJ failed to remind respondent of right to retain counsel at
subsequent proceedings where respondent had counsel at the first proceeding who withdrew];
Obleshchenko v. Ashcroft, 392 F.3d 970, 971–72 (8th Cir. 2004) [no due process right regarding
effective assistance of counsel in asylum because there is no liberty or property interest in
discretionary relief]; Pop v. INS, 279 F.3d 457, 460 (7th Cir. 2002) [suggesting that claim that
constitutional right to counsel in the circuit is “virtually foreclosed” based on dicta in Stroe v. INS, 256
F.3d 498, 501 (7th Cir. 2001)].
(2) Right to Counsel before DHS—The right to counsel extends to DHS as a regulatory matter. 8 CFR
§292.5(b); Policy Memo, USCIS, , PM-602-0055, The Role of Private Attorneys and Other
Representatives, AILA Doc. No. 12011776; AFM, 12.1-.6; Policy Memo, USCIS, PM-602-0055.1,
Representation and Appearances and Interview Techniques, (May 23, 2012), AILA Doc. No.
12052940. The right to representation extends to whenever “an examination is provided for under the
regulations.” AFM 12.1. Under the regulation counsel “shall be permitted to examine or cross-examine
such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly
and entered on the record and to submit briefs.” Persons in deferred inspection are allowed counsel
because the regulation only prohibits counsel from primary and secondary inspections and only when
the person has not become “the focus of a criminal investigation and … taken into custody.” But DHS
does not extend the right to primary and secondary inspections. See 8 CFR §292.5(b); Gonzaga-
Ortega v. Holder, 736 F.3d 795, 801-04 (9th Cir. 2013) [returning LPR treated as arriving alien had no
right to counsel at secondary inspection]. See also Oliva-Ramos v. U.S. Att’y Gen., 694 F.3d 259, 286
(3d Cir. 2012) [notice of right to counsel does not arise under 8 CFR §292.5(b) until respondent is
placed in proceedings and the issuance of NTA with attached attorney notice before NTA is filed with
the immigration court satisfies the regulation]. Nor does it permit counsel in refugee interview
applications abroad. AFM at 12.1 n.2 [refugee applicants do not have the right to representation].But
the right to counsel in adjudicatory proceeding also arises from section 555(b) of the APA. Counsel
may also be present during the placement of electronic monitoring devices or in connection with
interviews pursuant to orders of supervision. Letter, Lawrence, Senior Litigation Counsel, Civil Division,
DOJ to Joaquin in NLG v. Chertoff (Mar. 12, 2008), AILA Doc. No. 08051565. Another area where right
to counsel will surely be raised is the question of the right to be present when an employer or
beneficiary that counsel may represent is the subject of an (Fraud Detection and National Security
Unit) inspection/investigation. Although FDNS does not have authority to prosecute, it does have broad
authority to investigate and conduct on-site visits at petitioner’s or beneficiary’s place of employment.
See e.g., FDNS Follow-Up E-Mail Questions After H-1B Site Visit, AILA Doc. No. 11022521. If an
applicant or petitioner has an attorney in a matter before USCIS the attorney has the right to be
present. AFM 12.4. An attorney “may not respond to questions the USCIS officer directs to the
applicant” but may “ask the USCIS officer to clarify the question asked” and “may ask the applicant or
petitioner additional questions at the conclusion of the interview by the officer.” AFM 12.4. Sufficient
seating should be provided during the interview so that the “attorney or other representative [is] seated
directly next to the person being interview … unless this cannot be accommodated due to the physical
layout…”AFM 15.2(a). “an applicant or his or her attorney or representative should be permitted to
present documents or other evidence that may help to clarify an issue of concern to the interviewer.”
AFM 15.4(c). If the client Page 583 wishes to proceed without her attorney she “must submit a written
statement to the USCIS official that he or she has voluntarily chosen to proceed without
representation. AFM 12.2(b).
(a) Right to Counsel at USCIS International Operations Offices—An G-28 attorney may attend an
appointment with his or her client regarding an appearance before a USCIS International
Operations Office including the Santo Domingo Field Office. USCIS, Final memo on the Role of
Private Attorneys, (May 2012), AILA Doc. No. 12052940; Q&A;, USCIS International
Operations/AILA Meeting (Nov. 3, 2017), Q.5,, AILA Doc. No. 17122706.
(3) Right to Counsel before DOS—Counsel may be present at a client’s interview if the head of the
consular section at the consulate has a policy to permit lawyers to be present and establishes
guidelines for participation. Cable, DOS, 99-State-21138 (Feb. 4, 1999), reprinted in 20 Bender’s
Immigr. Bull. 1402-05 (Dec. 15, 2015) [taking a more enlightened approach toward participation of
counsel in the visa process]
(4) Pro Bono Counsel—In removal proceedings, the IJ must provide a list of pro bono legal services
available to the respondent, INA §239(a)(1)(E) consistent with the standards set forth in 8 CFR
§1003.61-3387.65. The regulations have been substantially revised to permit only persons who
provide pro bono services to be included. Pro bono services are now defined as “those
uncompensated legal services performed for indigent aliens or the public good without any expectation
of either direct or indirect remuneration, including referral fees (other than filing fees or photocopying
and mailing expenses)… 8 CFR §1003.61(a)(2). The regulations are intended to exclude “low bono”
representation in the definition of pro bono and “representation for a fee, even a nominal fee, is not pro
bono representation.” 80 FR 59503, 59504 (Oct. 1, 2014). However, pro bono representation does not
preclude a person from being compensated who works for a firm, organization or pro bono referral
service with which he is associated and a firm, organization or referral service that charges nominal
fees is not precluded from the pro bono legal services list if it otherwise meets the eligibility
requirements set forth at 8 CFR §1003.62. A private attorney may not appear on the list if he or she is
in a location where she may provide pro bono legal services “through or in association with a nonprofit
organization or a pro bono referral service.” 80 FR at 59505; 8 CFR §1003.63(d)(3).
(5) Ineffective Assistance of Counsel Claims
(a) Analysis—An ineffective-assistance claim requires the BIA to engage in a two-part analysis: (1)
would competent counsel have acted otherwise? and (2) was counsel’s performance so inadequate
that it may have affected the outcome of proceedings (and not whether the person would have won
or lost his claim)? Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004)[reversing BIA
denial of motion to reopen for ineffective assistance of counsel where they improperly held that
respondent had to show the outcome of the case would have been different instead of “affecting”
the outcome]. In Habib v. Lynch, 787 F.3d 826, 831 (7th Cir. 2015) the Seventh Circuit, citing its
former decision in Solis-Chavez v. Holder, 662 F.3d 462, 466 (7th Cir. 2011) presented a three part
test to establish ineffective assistance: (1) did respondent comply with certain procedural
requirements; (2) did he show that he was prejudiced by his representative’s performance; and (3)
did he show that the proceeding was so fundamentally unfair that he was prevented from
reasonably presenting his case. In the Sixth Circuit it is the Lozada standard plus a showing of
prejudice. Gaye v. Lynch, 788 F.3d 519, 530 (6th Cir. 2015) [no showing that result would have
been different even if defendant had effective assistance]. In the Third Circuit the applicant must
show that there is a “reasonable likelihood” that the result of the removal proceedings would have
been different had the error not occurred. Contreras v. U.S. Att’y Gen., 665 F.3d 578, 584 (3d Cir.
2012). In the motion to reopen context a petitioner must demonstrate: (a) that he was prevented
from timely filing his motion due to prior counsel’s ineffectiveness; (b) that he demonstrated due
diligence in discovering counsel’s fraud or error; and (c) that he complied with the procedural
requirements Page 584 of Matter of Lozada. Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011)
[counsel ineffective and prejudice arose in failure to preserve respondent’s eligibility for AOS]. See
also Fadiga v. U.S. Att’y Gen., 488 F.3d 142, 157–63 (3d Cir. 2007) [where BIA applied a clear
probability standard in denying motion to reopen instead of applying a “reasonable probability”
standard regarding ineffective assistance of counsel (i.e., but for counsel’s ineffective assistance
there was a reasonable probability that the outcome would have been different) court reversed and
reopened]. See also U.S. v. Juarez, 672 F.3d 381, 387-89 (5th Cir. 2012) [finding ineffective
assistance of counsel for failing to rely on this book and other materials regarding derivative
citizenship claim when pleading to illegal reentry]. But see Lowe v. Sessions, 872 F.3d 713, 716
(5th Cir. 2017) [IAC claimed waived in motion to reopen where respondent alluded to IAC claim
only as part of the recitation of facts but failed to brief the issue]; Mena-Flores v. Holder, 776 F.3d
1152, 1169-72 (10th Cir. 2015) [to demonstrate ineffective assistance must show that failure to
introduce evidence was ineffective and not just strategic and that the ineffectiveness caused
enough prejudice to make proceedings fundamentally unfair; the ineffectiveness prong requires
“egregious circumstances” and the prejudice prong requires “reasonable likelihood”]. The
procedural requirements for an ineffective assistance claim have been set forth in Matter of Lozada,
19 I&N Dec. 637 (BIA 1988). See in this section ¶ (h) (p.588), infra. The AG subsequently issued a
new standard under Matter of Compean, 24 I&N Dec. 710 (BIA 2009). The Compean decision was
vacated by the AG. Matter of Compean, 25 I&N Dec. 1 (AG 2009) (Compean II). The AG in
Compean II however reaffirmed the BIA’s authority to consider ineffective of assistance of counsel
under Lozada based upon conduct after a final order of removal was issued. See e.g., Singh v.
Napolitano, 619 F.3d 1101 (9th Cir. 2010) [applying Compean II retroactively to bar person from
habeas challenge for failure to exhaust the BIA]. Ineffective assistance of counsel may arise from
an improper stipulation or concession during removal proceedings under the standards set forth in
Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986) [egregious circumstances is separate basis to
address counsel’s error when it involves improper stipulation or concession]; Hanna v. Holder, 740
F.3d 379, 387-90 (6th Cir. 2014). For a discussion of Velasquez, see in this section ¶ (14) (p.598),
infra.
(b) Raising Ineffective Assistance of Counsel—Procedurally a claim for ineffective assistance of

counsel should be raised before the agency in a motion to reopen unless it is apparent on the face
of the record that ineffective assistance occurred. Correa-Rivera v. Holder, Inc., 706 F.3d 1128,
1130-31 (9th Cir. 2013) [noting that usually an ineffective assistance claim under Lozada should be
raised in a motion to reopen but deciding the issue on appeal because neither the BIA nor DHS
objected and the ineffectiveness was not known in time for a motion to reopen]. For standard of
proof in motions to reopen, see in this subsection ¶ (t) (p.594), infra.
(c) Ineffective Assistance of Counsel May Not Be Due Process Violation—Several circuits have taken
the position that counsel’s actions do not implicate the Fifth Amendment and therefore ineffective
assistance of counsel does not deprive a respondent of due process. Massis v. Mukasey, 549 F.3d
631, 637 (4th Cir. 2008) [rejecting petitioner’s ineffective assistance of counsel claim based on due
process]; Jezierski v. Mukasey, 543 F.3d 886, 888–91 (7th Cir. 2008) [no statutory or constitutional
right to reopen a case due to ineffective assistance of counsel; court lacks jurisdiction to review the
denial]; Rafiyev v. Mukasey, 536 F.3d 853, 859–61 (8th Cir. 2008) [no due process right to effective
assistance of counsel in a removal proceeding but remanded for a determination whether there was
an administrative right]; Garcia v. U.S. Att’y Gen., 329 F.3d 1217, 1223–24 (11th Cir. 2003)
[following Mejia Rodriguez, no ineffective assistance that rises to a due process violation where the
deficient representation “merely prevents the alien from being eligible” for discretionary relief such
as INA §212(h)]. See Contreras v. U.S. Att’y Gen., 665 F.3d 578, 584 at n.3 (3d Cir. 2012) for a
listing of the circuits views on whether ineffective assistance is a due process violation. The 9th
Circuit has also ruled that there cannot be an ineffective assistance of counsel claim when the
noncitizen was aware that his or her representative was not a Page 585 licensed attorney.
Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008) [reliance on deficient advice of
nonlawyer/immigration consultant does not implicate due process because it did not affect
fundamental fairness of the proceeding]. A due process right may not extend to matters before or
beyond a removal proceeding. See Contreras v. U.S. Att’y Gen., 665 F.3d 578, 583-86 (3d Cir.
2012) [no due process violation where counsel is ineffective before removal hearing in regard to LC
and I-140 despite its effect on the hearing]; Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050–51 (9th
Cir. 2008) [no due process right to challenge ineffective assistance of counsel for a pre-removal
hearing matter where counsel failed to timely file I-130 for §245(i) purposes]; Chung Hak Hong v.
USCIS, 662 F.Supp.2d 1195 (C.D. Cal. 2009) [not a violation of due process where new lawyer
failed to timely respond to NOID in an I-140 revocation process because there is no due process
right to counsel other than in a removal hearing in the 9th Circuit].
(d) Harmless Error Rule; No Ineffective Assistance of Counsel—BIA applies “harmless error” rule and
rejects “inherent prejudice.” Matter of Assaad, 23 I&N Dec. 553, 561–62 (BIA 2003), appeal
dismissed for lack of jurisdiction Assaad v. Ashcroft, 378 F.3d 471 (5th Cir. 2004) [failure to file
timely notice of appeal without any showing of prejudice is insufficient to warrant reversal for
ineffective assistance of counsel]; Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998) [no prejudice
where INS without authorization unilaterally terminated removal proceeding because “the violation
of a regulatory requirement invalidates a proceeding only where the regulation or procedure
provides a benefit to the alien and the violation prejudiced the interest of the alien which was to be
protected by the regulation.”]; Matter of Santos, 19 I&N Dec. 105 (BIA 1984). See also Matter of B-
B-, 22 I&N Dec. 309 (BIA 1998) [counsel’s insistence on corroborative evidence for asylum claim
that discouraged application is not ineffective assistance of counsel]; Gomez-Velazco v. Sessions,
879 F.3d 989 (9th Cir. 2018) [a divided panel determined that in an INA §238(b) proceeding,
respondent must show prejudice]; Mena-Flores v. Holder, 776 F.3d 1152, 1169-72 (10th Cir. 2015)
[counsel not ineffective in failing to submit transcript because decision was strategic and there was
no prejudice in BIA’s denial in motion to reopen on other issues]; Njoroge v. Holder, 753 F.3d 809
(8th Cir. 2014) [upheld IJ’s denial of continuance where respondent asked court to call counsel who
did not appear on grounds of no prejudice]; Bathula v. Holder, 723 F.3d 889, 902-05 (7th Cir. 2013)
[no prejudice demonstrated in CAT claim even if lawyer ineffective]; Toure v. Holder, 624 F.3d 422,
430-31 (7th Cir. 2010) [no ineffective assistance in asylum case where no prejudice]; Surganova v.
Holder, 612 F.3d 901, 904-07 (7th Cir. 2010) [failure of prior counsel to obtain I-213 would not have
made a difference in case]; Jezierski v. Mukasey, 543 F.3d 886, 888–91 (7th Cir. 2008) [because
there is no statutory or constitutional right to reopen a case due to ineffective assistance of counsel
and no rule that mandates reopening under Lozada, court lacks jurisdiction to review the denial of
reopening where the BIA determined no prejudice]; Zeru v. Gonzales, 503 F.3d 59, 72–73 (1st Cir.
2007) [respondent failed to demonstrate that the result of a proper appeal would have been
different and therefore could not show prejudice]; Guerrero-Santana v. Gonzales, 499 F.3d 90 (1st
Cir. 2007) [rejecting ineffective counsel claim where second motion to reopen by other lawyer was
filed 14 months after BIA’s denial allegedly caused by respondent’s 2 initial lawyers]; Desna v.
Gonzales, 454 F.3d 896, 899 (8th Cir. 2006) [rejecting ineffective assistance where it was unrelated
to adverse credibility finding in asylum]; Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006) [upholding
BIA denial of motion to reopen to permit filing a timely petition for review which he alleged his
lawyers incompetently failed to do]; Orehhova v. Gonzales, 417 F.3d 48, 53 n.3 (1st Cir. 2005)
[claim that counsel should have handled matters better, including offering a different theory of
asylum, does not amount to ineffective assistance]; Dakane v. U.S. Att’y Gen., 399 F.3d 1269,
1272–75 (11th Cir. 2005) [respondent followed Lozada but failure to file brief did not prejudiced her
claim despite rebuttable presumption because there was no showing it affected the outcome of the
proceeding]; De Zavala v. Ashcroft, 385 F.3d 879 (5th Cir. 2004) [due process not violated because
Page 586 there was no prejudice where respondent’s counsel conceded incorrect charge that
respondent was inadmissible at entry as a nonimmigrant when she was inadmissible as an
immigrant]; Lara-Torres v. Ashcroft, 383 F.3d 968, 973–77 (9th Cir. 2004) [poor legal advice to client
that NTA would not apply retroactively to bar cancellation was not ineffective assistance because it
did not occur during the course of removal proceedings. Placing client in proceeding is not a due
process violation]; Denko v. INS, 351 F.3d 717, 722–25 (6th Cir. 2003) [where counsel wrote to
client suggesting he could file motion to waive client’s appearance and client did not show up at
hearing it was not ineffective assistance requiring reopening of in absentia order]; Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 824–28 (9th Cir. 2003) [where respondent was found inadmissible on
reason to believe charge and denied VD, counsel’s failure to file brief to BIA, while ineffective, did
not result in prejudice]; Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377–78 (3d Cir. 2003) [absence of
counsel at hearing did not prejudice asylum seeker who was allowed to present his case which
clearly indicated he was in the U.S. for economic reasons only]; Pop v. INS, 279 F.3d 457, 460–62
(7th Cir. 2002) [where political conditions substantially changed in Romania no prejudice shown by
denial of asylum]; Hernandez v. Reno, 238 F.3d 50, 56 (1st Cir. 2001) [rejecting due process
ineffective assistance claim where INA §212(c) case handled questionably]; Huicochea-Gomez v.
INS, 237 F.3d 696, 699–700 (6th Cir. 2001) [no ineffective assistance where lawyer placed client in
removal but applicant ineligible for cancellation]; Ambati v. Reno, 233 F.3d 1054, 1061–62 (7th Cir.
2000) [no due process denial of counsel to deny continuance where lawyer entered case 2 weeks
before asylum hearing but client was given 7 months continuance and did not show prejudice];
Miranda-Lores v. INS, 17 F.3d 84 (5th Cir. 1994) [where counsel failed to file §212(c) application
respondent must still show actual prejudice regarding entitlement to relief]; Mullen-Cofee v. INS,
976 F.2d 1375, 1380 n.12 (11th Cir. 1992), amended on denial of reh’g, 986 F.2d 1364 (11th Cir.
1993) [respondent who was never advised of his right to counsel in violation of INS regulations was
not denied due process because there was no prejudice]; Cobourne v. INS, 779 F.2d 1564 (11th
Cir. 1986) [same]; Then v. INS, 37 F.Supp.2d 346, 359–62 (D.N.J. 1998) [no ineffective assistance
under Lozada where no indication that client asked for appeal and was not present at hearing].
(e) Disbarment Does Not Automatically Mean Ineffective Counsel—Long-Gang Lin v. Holder, 630 F.3d
536, 546 (7th Cir. 2010) [court took note of lawyer’s disbarment for other matters but noted that his
ineffectiveness in other matters “does not direct the conclusion that he was ineffective here”].
(f) No Right to Relief and Therefore Ineffective Assistance Not Relevant—Rafiyev v. Mukasey, 536
F.3d 853, 859–61 (8th Cir. 2008) [no due process right to effective assistance of counsel in a
removal proceeding]; Serrano v. Gonzales, 469 F.3d 1317 (9th Cir. 2006) [no ineffective assistance
of counsel where respondent sought motion to reopen after VD had expired on grounds of
“exceptional circumstances” because exceptional circumstances provision was removed from the
Act]; Gutierrez-Morales v. Homan, 461 F.3d 605, 609–10 (5th Cir. 2006) [no constitutional claim for
ineffective assistance in cancellation because there is no constitutional right to discretionary relief
or to eligibility for discretionary relief]; Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005)
[claim of ineffective assistance fails because there is no constitutionally-protected liberty interest in
seeking AOS]; Guerra-Soto v. Ashcroft, 397 F.3d 637, 641 (8th Cir. 2005) [affirming BIA denial of
reopening on ground that when ineffective assistance of counsel touches upon respondent’s
chance to seek discretionary relief there is no due process issue]; Obleshchenko v. Ashcroft, 392
F.3d 970, 971–72 (8th Cir. 2004) [no due process right regarding ineffective assistance of counsel
in asylum claim because there is no liberty or property interest in discretionary relief]; Assaad v.
Ashcroft, 378 F.3d 471, 475–76 (5th Cir. 2004) [no due process violation and therefore no circuit
court jurisdiction where counsel’s ineffective assistance involved the failure to obtain a discretionary
waiver of conditional residency]; Dave v. Ashcroft, 363 F.3d 649, 652–53 (7th Cir. 2004) [rejecting
constitutional challenge to streamlining and ineffective assistance as to cancellation claim because
there is no liberty or property interest in discretionary relief]; Page 587 Garcia v. U.S. Att’y Gen.,
329 F.3d 1217, 1223–24 (11th Cir. 2003) [following Mejia Rodriguez, no ineffective assistance that
rises to a due process violation where the deficient representation “merely prevents the alien from
being eligible” for discretionary relief such as INA §212(h)]; Rodriguez-Guardado v. Smith, 271
F.Supp.3d 331, 336 (D. Mass. 2017) [no ineffective assistance for failure to inform client of
possibility of “S” visa because visa is discretionary and respondent failed to allege that an LEA
would have given him the visa]. But these cases often confuse the lack of due process to obtain
relief and a due process right to seek relief that Congress has made statutorily available. InArevalo
v. Ashcroft, 344 F.3d 1, 14–15 (1st Cir. 2003), the court addressed the issue whether INA §241(a)
(5) (reinstatement) may be applied retroactively to bar AOS filed prior to IIRIRA’s effective date. In
finding the statute could not be applied retroactively, the court noted that applying for AOS was a
vested right even if the relief itself was discretionary. Citing Accardi v. Shaughnessy, 347 U.S. 260
(1954), and other cases, the court stated that “an alien is not precluded from having a vested right
in a form of relief merely because the relief itself is ultimately at the discretion of the Executive
Branch.” See also INS v. St. Cyr, 533 U.S. 289, 307–08 (2001) [“Traditionally, courts recognized a
distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of
discretion, on the other hand. Eligibility that was ‘governed by specific statutory standards’ provided
‘a right to a ruling on an applicant’s eligibility,’ even though the actual granting of relief was ‘not a
matter of right under any circumstances, but rather is in all cases a matter of grace.’ ”]. See also
Zambrano-Reyes v. Holder, 725 F.3d 744, 750 (7th Cir. 2013) [due process may be violated even if
“an alien may not have a protected liberty interest in discretionary relief” because resisting removal
would deprive him of his liberty to remain in the U.S. which comprehends the right to present a
defense]; Leslie v. U.S. Att’y Gen., 611 F.3d 171 (3d Cir. 2010) [IJ failure to properly notify
respondent of the availability of free legal services required reversal and no showing of prejudice
was necessary because the agency’s regulation was to protect fundamental statutory and
constitutional rights]; Succar v. Ashcroft, 394 F.3d 8, 10 (1st Cir. 2005) [striking down regulation as
ultra vires on nonconstitutional grounds but holding: “[t]he mere fact that a statute gives the
Attorney General discretion as to whether to grant relief after application does not by itself give the
Attorney General the discretion to define eligibility for such relief]; Alcaraz v. INS, 384 F.3d 1150,
1162–63 (9th Cir. 2004) [internal policies under Accardi principle have binding effect on agency,
although court remanded to BIA to determine whether various memoranda were sufficient to
establish repapering policy]; U.S. v. Copeland, 376 F.3d 61, 72 (2d Cir. 2004)[there is a distinction
between “a right to seek relief and the right to the relief itself” and “[t]he decisions holding that a
failure to inform an alien about Section 212(c) relief cannot be a fundamental error collapse this
distinction and incorrectly assume that, because the grant of Section 212(c) relief is itself
discretionary, the denial of a Section 212(c) hearing cannot be a fundamental procedural error”];
Rabiu v. INS, 41 F.3d 879, 883 (2d Cir. 1994); Mayers v. Reno, 175 F.3d 1289, 1301 n.15 (11th Cir.
1999); Gutierrez v. Ashcroft, 289 F.Supp.2d 555, 567–68 (D.N.J. 2003) [rejecting claim that
because respondent has no due process right to obtain §212(c) relief he has no due process claim
to seek relief]. See also Abdallahi v. Holder, 690 F.3d 467, 472-73 (6th Cir. 2012) [although finding
no error on the merits, the court rejected the government’s argument that the respondent seeking
AOS had no due process rights because he had no liberty interest in discretionary relief; the court
found the AG conflated “discretionary status” with “discretionary relief” and noted there was a due
process right to a full and fair hearing].
(g) Harmful-Error Analysis Not Necessary for Ineffective Assistance
Ninth Circuit—The Ninth Circuit does not require a showing that ineffective assistance would have
definitively changed the outcome but that it “may” have affected the outcome of the proceeding.
Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) [counsel’s ineffectiveness is prejudicial if it could
have affected the outcome and the failure to file a necessary document creates a “presumption of
prejudice”]; Nehad v. Mukasey, 535 F.3d 962, 972–73 (9th Cir. 2008) [where counsel ineffectively
forced Page 588 petitioner to give up asylum claim and accept VD, court vacated final order
because petitioner had a “nontrivial” chance of success in asylum claim]; Morales Apolinar v.
Mukasey, 514 F.3d 893, 898–99 (9th Cir. 2008) [where former counsel failed to obtain school
records and elicit testimony regarding physical presence and failed to establish qualifying relatives
for hardship, his performance prevented client from reasonably presenting her case for cancellation
and client need only show “plausible grounds for relief”]; Mohammed v. Gonzales, 400 F.3d 785,
793–94 (9th Cir. 2005) [first counsel’s failure to present evidence of FGM may have affected the
outcome of proceedings]. See also Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 979–80 (9th
Cir. 2008) [failure to file §212(h) waiver on date required creates a presumption of prejudice];
Baltazar-Alcazar v. INS, 386 F.3d 940, 947–49 (9th Cir. 2004) [requiring respondent to establish
extreme hardship alone given the complex nature of the task was prejudicial]; Bui v. INS, 76 F.3d
268 (9th Cir. 1996) [BIA cannot engage in harmless error analysis that is speculative]; Agyeman v.
INS, 296 F.3d 871, 884–85 (9th Cir. 2002) [reversing BIA because of “potential” prejudice where IJ
insisted that only respondent’s wife’s testimony in AOS hearing was relevant]. In certain
circumstances, the Ninth Circuit also maintains a “presumption of prejudice” which the government
may rebut. Grigoryan v. Keisler, 515 F.3d 999, 1003–05 (9th Cir. 2007); Ray v. Gonzales, 439 F.3d
582, 587–88 (9th Cir. 2006) [respondent denied due process because there is a presumption of
prejudice when 2 attorneys failed to properly file motions to reopen]; Singh v. Ashcroft, 367 F.3d
1182, 1189–90 (9th Cir. 2004) [presumption of prejudice where there is ineffective assistance in
regard to asylum claim]. The presumption of prejudice “may arise from counsel’s failure to file a
timely notice of appeal or petition for review, his failure to file a brief to the BIA or this court, or his
filing of a boilerplate brief.” Grigoryan, 515 F.3d 999, 1006. A presumption of prejudice also arises
where ineffective assistance resulted in an in absentia removal order. Lo v. Ashcroft, 341 F.3d 934,
939 n.6 (9th Cir. 2003); Grigoryan, 515 F.3d at 1003. But the 9th Circuit rule of inherent prejudice
from lack of counsel may not extend to an INA §238(b) proceeding. Gomez-Velazco v. Sessions,
879 F.3d 989 (9th Cir. 2018) [a divided panel determined that in an INA §238(b) proceeding,
respondent must show prejudice].
Other Circuits—Leslie v. U.S. Att’y Gen., 611 F.3d 171 (3d Cir. 2010) [IJ failure to properly notify
respondent of the availability of free legal services required reversal and no showing of prejudice
was necessary because the agency’s regulation was to protect fundamental statutory and
constitutional rights]; Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994) [no showing of prejudice
necessary where fundamental rights derived from the constitution or federal statute are implicated
such as the right to counsel]; Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) [reversing denial of
§212(c) relief where IJ failed to comply with former 8 CFR §242.16(a) by not requiring respondent
to state on record whether or not he wanted counsel]; Sewak v. INS, 900 F.2d 667, 670 n.7 (3d Cir.
1990) [rejecting rule because INS must still prove Woodby standard where alien tried incorrectly in
absentia]; Rios-Berrios, 776 F.2d 859, 863 n.1 (9th Cir. 1985) [criticizing Santos regarding counsel
issue]; Garcia-Guzman v. Reno, 65 F.Supp.2d 1077, 1088 (N.D. Cal. 1999) [interference in
attorney-client relationship was so egregious as to be a per se violation not requiring a showing of
harm]; Jiang v. Houseman, 904 F.Supp. 971, 979–80 (D. Minn. 1995) [rejecting Santos in exclusion
proceeding]; Molaire v. Smith, 743 F.Supp. 839 (S.D. Fla. 1990) [rejecting harmless error claim
where excludable person never informed of free legal services and never voluntarily waived
counsel]. See also Matter of Michel, 21 I&N Dec. 1101 (BIA 1998) [reversing order of removal
where IJ failed to ascertain on the record whether respondent desired counsel]; Matter of Grijalva,
21 I&N Dec. 472 (BIA 1996) [need not show prejudice to reopen in absentia order predicated on
ineffective assistance of counsel]; Arizona v. Fulminante, 499 U.S. 279, 309 (1991) [where
“structural defects” in the trial they are not harmless errors].
(h) Denial of Right Where Ineffective Assistance of Counsel—Salazar-Gonzalez v. Lynch, 798 F.3d
914 (9th Cir. 2015) [advising client to give up his appeal of the denial of cancellation and, instead,
pursue an immigrant visa abroad when he was subject to the Page 589 “permanent” 10-year bar
(with no waiver) was not a strategic decision because “steering a client into such a dead-end is not
a tactical decision”]; Habib v. Lynch, 787 F.3d 826 (7th Cir. 2015) [notwithstanding the government
proving that respondent committed a INA §212(a)(6)(c) violation in procuring AOS, his lawyer was
ineffective when he represented that respondent’s was not validly married to a USC at time of his
AOS because the incorrect admission deprived respondent of right to seek a waiver]; Tie Xia Chen
v. Holder, 782 F.3d 373 (7th Cir. 2015) [two prior lawyers ineptly caused the IJ to find testimony
inconsistent and finding that asylum applicant submitted a fraudulent document did not bar
ineffectiveness claim]; Solis-Chavez v. Holder, 662 F.3d 462, 466-69 (7th Cir. 2011) [where counsel
in immigration proceeding conceded ineligibility for JRAD because JRAD not entered within 30
days of sentencing court found ineffective assistance because 30-day provision was not
jurisdictional]; Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) [counsel ineffective and prejudice
arose in failure to preserve client’s AOS because at any time after marriage counsel could have
sought remand]; Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) [admission to alien
smuggling by petitioner’s counsel in motion to change venue was struck where it was factually
untrue and ineffective assistance of counsel]; Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011)
[counsel were ineffective in not advising petitioner in removal proceedings of possibility of AOS];
Ahmed v. Mukasey, 548 F.3d 768, 772–73 (9th Cir. 2008) [counsel ineffective for failing to explain to
client how to collect necessary evidence to support a motion to reopen under Verlarde]; Rranci v.
U.S. Att’y Gen., 540 F.3d 165 (3d Cir. 2008) [in extremely liberal reading of Lozada court found
ineffective assistance because counsel failed to raise Convention Against Transnational Organized
Crime for an informant in the context of asylum]; Nehad v. Mukasey, 535 F.3d 962, 972–73 (9th Cir.
2008) [ineffective assistance and breach of ethical duties where counsel forced petitioner
immediately prior to hearing to give up asylum claim and accept VD or he would withdraw]; Aris v.
Mukasey, 517 F.3d 595 (2d Cir. 2008) [ineffective assistance, even if it occurs through a paralegal’s
misrepresentation is an exceptional circumstance tolling the 180-day period for in absentia order];
Sanchez v. Keisler, 505 F.3d 641 (7th Cir. 2007) [reversing BIA determination that lawyer’s decision
to proceed with regular cancellation rather than the lower standard for VAWA cancellation was a
“strategic” decision rather than ineffective assistance]; Fadiga v. U.S. Att’y Gen., 488 F.3d 142,
155–63 (3d Cir. 2007) [a claim of ineffective assistance of counsel is cognizable under the Fifth
Amendment as a violation of due process; reversing denial of motion to reopen]; Mai v. Gonzales,
473 F.3d 162, 165–67 (5th Cir. 2007) [reversing BIA denial of motion to reopen for ineffective
assistance despite BIA’s claim that the lawyer made a strategic decision when he admitted 2
grounds of removal where one required a §212(c) waiver and the second a waiver under §240A
because once §212(c) granted for the first ground §240A was unavailable for the second]; N’Diom
v. Gonzales, 442 F.3d 494 (6th Cir. 2006) [reversing asylum denial where there was a combination
of incompetent counsel resulting in evidence not being placed in the record, a coup in Mauritania
and uncertainty about present conditions there, and the questionable rejection of respondent’s
testimony that appeared plausible and consistent]; Siong v. INS, 376 F.3d 1030, 1037 (9th Cir.
2004) [“Failure to file a timely notice of appeal is obvious ineffective assistance of counsel … [and]
[p]rejudice is ordinarily presumed in immigration proceedings when counsel’s error ‘deprives the
alien of the appellate proceeding entirely” although the presumption may be rebutted if the
appellant has no plausible grounds for relief]; Roe v. Flores-Ortega, 528 U.S. 470, 483-84 (2000)
[Sixth Amend. right to counsel violated where defendant can show reasonable probability that he
would have appealed]; Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226–27 (9th Cir. 2002)
[respondent’s due process right to counsel was violated where notary and lawyers failed to timely
file suspension application]; Saakian v. INS, 252 F.3d 21 (1st Cir. 2001) [reversing BIA’s failure to
consider Lozada claim where BIA refusal was based upon pro se respondent’s failure to present all
aspects of Lozada claim to IJ].Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000)
[applying Flores-Ortega to Fifth Amendment immigration context where counsel filed notice in
circuit court one day late]; Castillo-Perez v. INS, 212 F.3d 518, 526–27 (9th Cir. 2000) Page 590
[ineffective assistance is a denial of due process and the remedy is to remand and apply law on
suspension that existed at time error was made which was pre-IIRIRA]; Rabiu v. INS, 41 F.3d 879
(2d Cir. 1994) [counsel’s failure to file §212(c) application constituted ineffective assistance
warranting reversal of deportation order]; Colindres-Aguilar v. INS, 819 F.2d 259 (9th Cir. 1987)
[prejudice not harmless where counsel could have marshaled facts better on asylum and sought
VD]; Gutierrez v. Ashcroft, 289 F.Supp.2d 555 (D.N.J. 2003) [where counsel affirmatively
misrepresented that he had filed a habeas petition challenging the denial of the right to seek
§212(c) before respondent was physically removed, his actions violated due process and permitted
the court to accept the habeas nunc pro tunc to the time before respondent was removed]; Saba v.
INS, 52 F.Supp.2d 1117, 1125–26 (N.D. Cal. 1999) [ineffective assistance amounts to due process
violation and where counsel continues to represent person, the court has an independent duty to
raise the claim].
(i) Lozada Criteria—The BIA has determined criteria for ineffective assistance of counsel in Matter of
Lozada, 19 I&N Dec. 637 (BIA 1988) [where ineffective assistance of counsel claim raised must: (1)
have motion supported by affidavit setting forth agreement and representations by counsel; (2)
inform counsel against whom the claim is made and give counsel opportunity to respond; (3) reflect
in motion whether bar charge has been filed and if not, why not]. Tai v. Gonzales, 423 F.3d 1, 5–6
(1st Cir. 2005) [where respondent failed to follow any of the Lozada criteria and failed to file a
motion to reopen, BIA correctly denied ineffective assistance claim]. See also Matter of Rivera, 21
I&N Dec. 599 (BIA 1996) [elaborating on criteria related to bar complaints]. The BIA has reaffirmed
the validity of Lozada notwithstanding DHS challenge to its constitutional underpinnings.Matter of
Assaad, 23 I&N Dec. 553 (BIA 2003), appeal dismissed for lack of jurisdiction, Assaad v. Ashcroft,
378 F.3d 471 (5th Cir. 2004) [reaffirming Lozada despite INS claim that under Coleman v.
Thompson, 501 U.S. 722, 752–54 (1991) and Wainwright v. Torna, 455 U.S. 586, 587–88 (1982)
there is no constitutional right to counsel]. In the view of most courts, there must be a showing of
prejudice, even where Lozada is met. See e.g., Piranej v. Mukasey, 516 F.3d 137, 142 n.6 (2d Cir.
2008) [must show prejudice but it is likely on record where ineffectiveness resulted in denying AOS
based upon USC wife]; Zheng v. Gonzales, 422 F.3d 98, 106–08 (3d Cir. 2005) [Lozada
requirements were met but there was no showing of prejudice due to lawyer’s failure to file BIA
brief]; Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272–75 (11th Cir. 2005) [respondent followed
Lozada but did not show counsel’s failure to file brief prejudiced claim because no showing it may
have affected the outcome of the proceeding]. See also in this section “Harmless Error Rule,” ¶ (d)
(p.584), supra, and “No Right to Relief…,” ¶ (f) (p.586), supra.
(j) Applying Lozada to Accredited Representatives—Lozada criteria may in some form apply to
accredited representatives. Matter of Zmijewska, 24 I&N Dec. 87, 94–95 (BIA 2007) [where
accredited representative did not properly notify respondent of VD date, respondent sought to
reopen his case and AOS by filing complaint against representative and giving him the opportunity
to respond thereby taking steps to satisfy Lozada].
(k) Applying Lozada to Notaries—Lozada has been applied to notaries who fraudulently hold
themselves out as lawyers or commit fraud with lawyers. Borges v. Gonzales, 402 F.3d 398 (3d Cir.
2005) [if notary working with lawyer committed fraud, 180-day period is tolled, motion to reopen is
timely filed, and ineffectiveness of counsel would constitute an exceptional circumstance to rescind
order]; Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) [where respondent did not appear at hearing
because of fraudulent misrepresentation of nonlawyer, 180-day period for filing under former INA
§242B(c)(3)(A) was tolled]; Matter of J-J-L-, ID#11654 (AAO Mar. 30, 2016) [applying Lozada to
notary who defrauded TPS applicant and reopening denial for failure to file timely TPS]. But see
Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008) [reliance on deficient advice of
nonlawyer/immigration consultant does not implicate due process because it did not affect
fundamental fairness of the proceeding]. Page 591
(l) Applying Lozada to DHS Decisions Other Than Removal Proceedings—Court rejected DHS claim
that Lozada and ineffective claims only apply to removal proceedings. Hovhannisyan v. DHS, 624
F.Supp.2d 1135, 1147–48 (C.D. Cal. 2008) [ineffective assistance could be raised as an
extraordinary circumstance for the untimely filing of a motion to extend status under 8 CFR
§214.1(c)(4)]. See also Matter of J-J-L-, ID#11654 (AAO Mar. 30, 2016) [applying Lozada to notary
who defrauded TPS applicant and reopening denial for failure to file timely TPS].
(m) Lozada Met Without Filing Bar Charge—Under the third prong of Lozada, a respondent need not
file a bar charge if she can explain why she did not file one with appropriate disciplinary authorities.
Correa-Rivera v. Holder, Inc., 706 F.3d 1128, 1131-32 (9th Cir. 2013) [recognizing that third prong
concerning bar charge is merely “hortatory” and that “it is irrational and arbitrary, even bizarre” to
dismiss a motion based upon late-filing where attorney acknowledges his error]; Rranci v. U.S. Att’y
Gen., 540 F.3d 165, 172–77 (3d Cir. 2008) [affidavit from current counsel that he spoke to former
counsel was sufficient to meet policy concerns underlying the third prong of Lozada because former
counsel was made aware of his potential error]; Morales Apolinar v. Mukasey, 514 F.3d 893, 895–
98 (9th Cir. 2008) [where petitioner’s attorney was suspended from the bar after failing to respond
to prior charges of ineffective assistance, it would be futile for petitioner to inform counsel of the
accusations or file a complaint]; Fadiga v. U.S. Att’y Gen., 488 F.3d 142, 155–57 (3d Cir. 2007)
[respondent not required to file a bar charge where lawyer confessed error and submitted a detailed
affidavit regarding ineffective assistance]; Zheng v. Gonzales, 422 F.3d 98, 106–07 (3d Cir. 2005)
[third prong of Lozada was met where present attorney explained that respondent did not file bar
charge because he was uncertain about former counsel’s claim that the reason he failed to file brief
is that he did not receive briefing schedule and lawyer filed FOIA to find out]; Lo v. Ashcroft, 341
F.3d 934 (9th Cir. 2003) [noting that there must be “flexibility in applying the Lozada requirements”
the Court held respondent was not required to file a bar charge where lawyer acknowledged the
error in an affidavit, and where the error was inadvertent because secretary calendared the wrong
hearing date].
(n) Strict Adherence to Lozada Not Required by All Courts—See e.g., U.S. v. Lopez-Chavez, 757 F.3d
1033, 1044 (9th Cir. 2014) [where ineffective assistance is “clear and obvious” from the record,
Lozada requirements need not be applied]; Rranci v. U.S. Att’y Gen., 540 F.3d 165, 172–77 (3d Cir.
2008) [affidavit from current counsel that he spoke to former counsel was sufficient to meet second
prong of Lozada regarding notice to counsel and opportunity to respond; current counsel’s
discussion with prior counsel met the policy concerns underlying the third prong in regard to
disciplinary action because lawyer was now aware of potential error]; Hernandez-Mendoza v.
Gonzales, 537 F.3d 976, 978–79 (9th Cir. 2008) [Lozada is not jurisdictional and failure to comply is
not fatal because Lozada is mandated by the BIA not the Ninth Circuit and the record clearly shows
constitutionally ineffective assistance]; Piranej v. Mukasey, 516 F.3d 137, 142–45 (2d Cir. 2008)
[where petitioner did not explain in sufficient detail the agreement he had with counsel, court
remanded for an evidentiary hearing to determine whether there was a general retainer which
would have required counsel to explain §245(i) or just a retainer to represent him in removal
proceedings]; Yang v. Gonzales, 478 F.3d 133, 142–43 (2d Cir. 2007) [where respondent did not
follow Lozada and simply raised incompetency issue to BIA, the court found it was sufficient in light
of attorney’s disbarment prior to BIA decision]; Barry v. Gonzales, 445 F.3d 741, 746–47 (4th Cir.
2006) [although strict adherence to Lozada is not required, BIA denial of a motion to reopen was
affirmed where there was no substantial compliance with Lozada because respondent’s affidavit did
not detail discussions with counsel, prior counsel was not served with papers and given an
opportunity to respond, and there was no evidence that a bar charge was filed]; N’Diom v.
Gonzales, 442 F.3d 494 (6th Cir. 2006) [Lozada not addressed where court reversed asylum denial
due to a combination of incompetent counsel resulting in evidence not being placed in the record, a
coup in Mauritania and uncertainty about present conditions there, and the Page 592 questionable
rejection of respondent’s testimony that appeared plausible and consistent]; Ray v. Gonzales, 439
F.3d 582, 589 (9th Cir. 2006) [as part of the Lozada notice criteriathe submission of a bar charge
provided notice to the attorneys of respondent’s complaints]; Lo v. Ashcroft, 341 F.3d 934 (9th Cir.
2003) [noting that there must be “flexibility in applying the Lozada requirements” the Court held
respondent was not required to file a bar charge where lawyer acknowledged the error in an
affidavit, and where the error was inadvertent because secretary calendared the wrong hearing
date]; Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824–28 (9th Cir. 2003) [where administrative record
demonstrates the legitimacy of the ineffective assistance claim and there was substantial
compliance with Lozada failure to submit affidavits is not fatal]; Rodriguez-Lariz v. INS, 282 F.3d
1218, 1226–27 (9th Cir. 2002) [respondent “substantially” complied with Lozada where notary and
lawyers failed to file for suspension]; Escobar-Grijalva v. INS, 206 F.3d 1331, 1334–35 (9th Cir.
2000) [Lozada requirements need not be followed where the record demonstrates the ineffective
assistance]; Castillo-Perez v. INS, 212 F.3d 518, 524–28 (9th Cir. 2000) [same]; Ontiveros-Lopez v.
INS, 213 F.3d 1121, 1124–25 (9th Cir. 2000) [abuse of discretion to strictly adhere to Lozada];
Saakian v. INS, 252 F.3d 21 (1st Cir. 2001) [reversing BIA’s refusal to consider ineffective
assistance claim where all aspects of Lozada were not presented to IJ but were presented to BIA];
Esposito v. INS, 987 F.2d 108, 110–11 (2d Cir. 1993) [post-Lozada case not requiring bar complaint
to establish ineffective assistance]; Figeroa v. INS, 886 F.2d 76 (4th Cir. 1989) [same].
(o) Greater Adherence to Lozada Criteria—Garcia v. Lynch, 821 F.3d 178, 181 (1st Cir. 2016) [where
petitioner did not comply with Lozada, the Court rejected the argument that ineffective assistance
was plain on its face]; Hernandez-Ortez v. Holder, 741 F.3d 644 (5th Cir. 2014) [denied petition for
review where pro se applicant filed Bar charge but did not comply with second prong of Lozada and
give counsel opportunity to respond before making ineffective claim]; Marinov v. Holder, 687 F.3d
365 (7th Cir. 2012) [filing motion to reopen three days after filing disciplinary complaint with Illinois
Bar did not meet notification requirement under Lozada and court declined a per se ineffective
assistance rule]; Rodriguez-Manzano v. Holder, 666 F.3d 948, 953 (5th Cir. 2012) [strict adherence
to the second prong of Lozada regarding informing counsel and giving him an opportunity to
respond was required despite the “lawyer” having left the country and despite petitioner’s argument
that it would no longer serve a bona fide purpose]; Lin Xing Jiang v. Holder, 639 F.3d 751, 754-56
(7th Cir. 2011) [satisfying Lozada is a necessary condition and respondent failed to satisfy even one
criteria]; Debeatham v. Holder, 602 F.3d 481, 485-86 (2d Cir. 2010) [where respondent followed
Lozada but did not raise it as to the issue (212(c)) it sought court review, Lozada waived]; Punzalan
v. Holder, 575 F.3d 107, 111–12 (1st Cir. 2009) [affidavit not sufficiently detailed and lawyer in same
firm filed bar charge]; Beltre-Veloz v. Mukasey, 533 F.3d 7 (1st Cir. 2008) [petitioner failed to adhere
to basic requirements of Lozada in seeking to prove ineffective assistance leading to in absentia
order]; Omar v. Mukasey, 517 F.3d 647 (2d Cir. 2008) [upholding BIA dismissal where petitioner did
not address any of the criteria in Lozada and particularly his contractual arrangements with a
nonlawyer immigration consultant]; Pepaj v. Mukasey, 509 F.3d 725, 727 (6th Cir. 2007) [failure to
file bar charge fatal to appeal; rejecting equal protection challenge to the requirement]; Patel v.
Gonzales, 496 F.3d 829 (7th Cir. 2007) [no abuse of discretion in denying motion to reopen where
respondent attached bar complaint but did not, prior to filing the motion to reopen, provide notice to
former counsel with opportunity to respond]; Garcia-Martinez v. DHS, 448 F.3d 511 (2d Cir. 2006)
[no review of ineffective assistance claim where BIA dismissed for failure to comply with Lozada];
Zheng v. DOJ, 409 F.3d 43 (2d Cir. 2005) [respondent failed to comply substantially with Lozada in
filing a motion to reopen and lost ineffective assistance claim]; Asaba v. Ashcroft, 377 F.3d 9, 12
(1st Cir. 2004) [requiring strict adherence to Lozada and upholding BIA denial of motion to reopen
where former counsel not given sufficient time to respond to charges before filing motion]; Wang v.
Ashcroft, 367 F.3d 25 (1st Cir. 2004), [affidavit pursuant to Lozada failed to explain the agreement
between counsel and client or the prejudice that resulted from counsel’s Page 593 misdeeds];
Azanor v. Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004) [where respondent’s affidavit did not
include the details of his agreement with ineffective counsel court rejected claim]; Betouche v.
Ashcroft, 357 F.3d 147, 149–51 (1st Cir. 2004) [upholding BIA denial of motion to reopen where
Lozada requirements of an affidavit and notice to counsel were not met]; Reyes v. Ashcroft, 358
F.3d 592 (9th Cir. 2004) [where malpractice was not evident from the record, respondent’s failure to
file affidavit and provide former counsel an opportunity to respond before filing the motion did not
comport with Lozada]; Hamid v. Ashcroft, 336 F.3d 465, 468–69 (6th Cir. 2003) [affirming removal
order and rejecting ineffective assistance claim where applicant failed to allege in his affidavit
following Lozada, a detailed statement of the agreement with former counsel and what counsel
represented]; Lu v. Ashcroft, 259 F.3d 127, 132–33 (3d Cir. 2001)[finding Lozada criteria a
reasonable exercise of authority, denying motion to reopen for not complying with Lozada, but
expressing concern about inherent danger in applying a strict formulaic interpretation not allowing
explanations for failing to file bar complaint]; Stroe v. INS, 256 F.3d 498 (7th Cir. 2001) [requiring
strict adherence to Lozada and finding failure to do so barred ineffective assistance claim against
lawyer who failed to file timely brief]; Lara v. Trominski, 216 F.3d 487, 495–99 (5th Cir. 2000) [no
abuse of discretion in denying motion to reopen where bar complaint could have been filed]; Ortiz v.
INS, 179 F.3d 1148, 1153–54 (9th Cir. 1999) [no ineffective counsel claim where there is a failure to
produce or proffer the evidence that counsel failed to introduce]; Stewart v. INS, 181 F.3d 587, 596
(4th Cir. 1999) [ineffective assistance not entertained where party failed to follow Lozada].
(p) Lozada Applied in Context of In Absentia Order—Habchy v. Gonzales, 471 F.3d 858, 863–64 (8th
Cir. 2006) [IJ did not abuse discretion in refusing to reopen proceedings where respondent failed to
file bar charge and comply with Lozada]; Asaba v. Ashcroft, 377 F.3d 9 (1st Cir. 2004) [affirming BIA
denial of motion to reopen where Lozada requirements not strictly adhered to by respondent]; Lo v.
Ashcroft, 341 F.3d 934 (9th Cir. 2003) [where attorney provided wrong date for the hearing
inadvertently due to secretarial error and acknowledged mistake, the court noted that there must be
“flexibility in applying the Lozada requirements” and that prejudice is not required for a motion to
reopen an in absentia order]; Riley v. INS, 310 F.3d 1253, 1257–58 (10th Cir. 2002) [time limitation
for filing motion to reopen may be equitably tolled for ineffective assistance and case will be
remanded to BIA to determine respondent’s due diligence and compliance with Lozada]; Matter of
Grijalva, 21 I&N Dec. 472 (BIA 1996) [failure to appear due to former counsel informing him
incorrectly that he did not have to appear]; Matter of Rivera, 21 I&N Dec. 599 (BIA 1996)
[suggesting that bar charge must be filed to meet Lozada when challenging an in absentia order];
Matter of Lei, 22 I&N Dec. 113 (BIA 1998) (Rosenberg, J., dissenting); Matter of N-K- & V-S-, 21
I&N Dec. 879 (BIA 1997) [ineffective assistance of counsel claim based on lack of notice where
attorney appearing in bond proceedings failed to notify respondent of deportation hearing date].
(q) Remedy for Ineffective Assistance—In Castillo-Perez v. INS, 212 F.3d 518, 528 (9th Cir. 2000) the
court determined that the appropriate remedy for an ineffective assistance claim was to remand the
case to the BIA with instructions that the agency apply the law in existence at the time the claim
should have been made. In Castillo-Perez, the BIA denied a motion to reopen for suspension of
deportation on the grounds that post-IIRIRA the applicant was ineligible due to the “stop time” rule
at IIRIRA §309(c)(5). However, the Ninth Circuit found that because Castillo-Perez was the victim of
ineffective assistance of counsel when his attorney failed to file a timely application, the “stop time”
statute did not apply and he remained eligible for suspension of deportation.
(r) Equitable Tolling for Ineffective Assistance or Fraud—For issues concerning equitable tolling and
due diligence, see Chapter 9, ¶ XIII.H.6 (p.1774), infra.
(s) Exhaustion Requirement—Courts may not consider an ineffective assistance of counsel claim
unless it was raised before the BIA either directly or through a motion to Page 594 reopen.
Guzman-Rivadeneira v. Lynch, 822 F.3d 978, 982-84 (7th Cir. 2016) [rejecting on-its-face challenge
to ineffective assistance and requiring exhaustion]; Mazariegos-Paiz v. Holder, 734 F.3d 57, 66 n.6
(1st Cir. 2013) [where petitioner claims that failure to furnish corroborating evidence was due to
ineffective assistance court lacked jurisdiction to consider the issue because it was not raised
before or addressed by the BIA]; Patel v. Holder, 581 F.3d 631, 635 (7th Cir. 2009) [court lacked
jurisdiction to review ineffective assistance where issue was raised for first time in motion to reopen
before the BIA while case pending in circuit court, but no petition for review was filed for denial of
motion to reopen]; Singh v. Gonzales, 499 F.3d 969, 974 (9th Cir. 2007) [claim that first lawyer was
ineffective because he made unauthorized changes to asylum application could have been raised
at removal hearing by second lawyer]; Puga v. Chertoff, 488 F.3d 812 (9th Cir. 2007) [court would
not address ineffective assistance because respondent failed to raise it in a motion to reopen];
Galvez Pineda v. Gonzales, 427 F.3d 833, 837–38 (10th Cir. 2005) [where respondent timely
appealed BIA’s summary dismissal for failure to file brief and argued ineffective assistance, the
issue was not exhausted and respondent had to file a timely Lozada motion to reopen with the BIA];
Etchu-Njang v. Gonzales, 403 F.3d 577, 581–85 (8th Cir. 2005) [exhaustion required before raising
ineffective assistance and no due process claim because ineffective assistance arose out of failure
to seek discretionary cancellation]; Goonsuwan v. Ashcroft, 252 F.3d 383 (5th Cir. 2001) [habeas
dismissed because ineffective assistance claim had to be raised by motion to reopen before BIA in
transitional rule case governed by 106(c) exhaustion requirement]; Bernal-Vallejo v. INS, 195 F.3d
56, 63–65 (1st Cir. 1999) [failure to raise ineffective assistance by way of motion to reopen barred
claim in court of appeals even where ineffective counsel was attorney at BIA as well as IJ];
Akinwunmi v. INS, 194 F.3d 1340 (10th Cir. 1999) [same].However, the BIA has been reversed for
inconsistently applying the motion to reopen rule to deny an ineffective assistance claim. Osei v.
INS, 305 F.3d 1205 (10th Cir. 2002) [reversing BIA denial of motion to reopen where BIA
interpreted 8 CFR §3.2(c)(1) to require production of newly discovered evidence despite ineffective
assistance claim]. But see Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 977–78 (9th Cir. 2008)
[ineffective assistance may be raised for the first time in a petition for review because a motion to
reopen is not an administrative remedy available as of right].
(t) Motion to Reopen Standard—Where ineffective assistance has been raised, the BIA has not
required the production of new evidence under 8 CFR §1003.2(c)(1) to reopen proceedings. Matter
of N-K- & V-S-, 21 I&N Dec. 879, 880 (BIA 1997); Matter of Lozada, 19 I&N Dec. 637, 639 (BIA),
aff’d, 857 F.2d 10 (1st Cir. 1988); Osei v. INS, 305 F.3d 1205 (10th Cir. 2002) [reversing BIA where
it required the production of new evidence for a motion based upon ineffective assistance].
However, the movant must show that the Lozada motion is related to the relief sought. Debeatham
v. Holder, 602 F.3d 481, 485-86 (2d Cir. 2010) [where respondent followed Lozada but did not raise
it as to the issue (212(c)) Lozada waived]. And he must show prejudice and therefore must produce
evidence regarding his claim. Massis v. Mukasey, 549 F.3d 631, 636–38 (4th Cir. 2008) [given the
state of law at the time, it was not ineffective assistance to concede that petitioner was subject to
removal for committing an aggravated felony]; Jezierski v. Mukasey, 543 F.3d 886, 888–91 (7th Cir.
2008) [because there is no statutory or constitutional right to reopen a case due to ineffective
assistance and no rule that mandates reopening under Lozada, the court pre-Kucana determined it
lacked jurisdiction to review the denial of reopening where the BIA determined no prejudice];
Canaveral v. Ashcroft, 385 F.3d 40, 46 (1st Cir. 2004) [movant’s claim against nonlawyer who
committed fraud even if deemed ineffective assistance was insufficient because there was no
showing of prejudice]. In addition, failure of counsel to raise an asylum/CAT/withholding claim
before the IJ or BIA when there was an opportunity to do so, may waive the right and prevent a
motion to reopen from being granted even if ineffective assistance is raised. Maindrond v. Ashcroft,
385 F.3d 98, 100–01 (1st Cir. 2004) [upholding denial of motion to reopen for CAT where movant
was represented by counsel before IJ and BIA]. But the applicant need not show that he would win
his case to Page 595 obtain a motion to reopen. Fadiga v. U.S. Att’y Gen., 488 F.3d 142, 157–63
(3d Cir. 2007) [where BIA applied a clear probability standard in denying motion to reopen instead
of applying a “reasonable probability” standard (i.e., but for counsel’s ineffective assistance there
was a reasonable probability that the outcome would have been different), court reversed and
reopened]; Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004)[reversing BIA denial of
motion to reopen for ineffective assistance where respondent was required to show he would win
his case rather than that his claim may have been affected]. The Board’s claim that a lawyer’s
action were merely a strategic decision is reviewable under an abuse of discretion standard. Mai v.
Gonzales, 473 F.3d 162, 165–67 (5th Cir. 2007) [reversing BIA denial of motion to reopen despite
BIA’s claim that the lawyer made a strategic decision when he admitted 2 grounds of removal
where one required a §212(c) waiver and the second a waiver under §240A because once §212(c)
granted for the first ground §240A was unavailable for the second]. The BIA must articulate a
rational explanation for claiming that an applicant failed to comply with Lozada. Ruiz-Turcios v. U.S.
Att’y Gen., 717 F.3d 847, 849 n.2 (11th Cir. 2013) [reversed as an abuse of discretion BIA’s denial
of motion to reopen where BIA merely noted that the applicant failed to comply with Lozada without
providing any factual finding or reasoning].
(u) No Sixth Amendment Right—Although ineffective assistance of counsel is often considered a

violation of due process under the Fifth Amendment, there may not be a Sixth Amendment right to
counsel as a result of U.S. v. Gouveia, 467 U.S. 180 (1984) [no Sixth Amendment right to
appointment of counsel for indigent inmates subject to administrative confinement during
investigation of prison crimes]. Accord Mantell v. INS, 798 F.2d 124 (5th Cir. 1986). See also
Prichard-Ciriza v. INS, 978 F.2d 219 (5th Cir. 1992); Trench v. INS, 783 F.2d 181, 183 (10th Cir.
1986).
(6) Waiver of Right to Counsel—Denial of right where no intelligent or knowing waiver is made. U.S. v.
Gomez, 757 F.3d 885, 897-98 (9th Cir. 2014) [involuntary waiver of appeal where unrepresented
person’s agreement to stipulated removal violated 8 CFR §1003.25(b) because IJ failed to determine if
waiver knowingly and intelligently made]; U.S. v. Reyes-Bonilla, 671 F.3d 1036, 1043-45 (9th Cir. 2012)
[when notice of right to counsel was not provided in a language petitioner understood there was no
intelligent or knowing waiver]; U.S. v. Ramos, 623 F.3d 672 (9th Cir. 2010) [in criminal reentry case,
where respondent signed stipulated removal order in English without counsel when he only spoke
Spanish, the court determined that defendant’s right to a removal proceeding and to counsel were not
knowingly and intelligently waived; IJ’s reliance on the stipulation without questioning the respondent
violated 8 CFR §1003.25(b)]; Ram v. Mukasey, 529 F.3d 1238 (9th Cir. 2008) [due process violated
where IJ did not inquire specifically if respondent wished to continue without a lawyer and receive a
knowing and voluntary response because lack of counsel potentially affected the outcome];
Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th Cir. 2007) [where respondent requested hearing be
continued because lawyer was not present, although in the building, the IJ’s denial of a continuance
was a violation of respondent’s right to counsel as he did not voluntarily waive counsel’s presence and
IJ had to take reasonable steps to ensure right to counsel]; Biwot v. Gonzales, 403 F.3d 1094, 1097–
98 (9th Cir. 2005) [where respondent was denied counsel and because of it labored under the
impression that he had no choice but to waive appeal, his removal order was reversed]; Baltazar-
Alcazar v. INS, 386 F.3d 940 (9th Cir. 2004) [where IJ barred lawyer from courtroom without a hearing
and then gave respondents the Hobson’s choice of undoing the consolidation of their cases or
proceeding pro se without the lawyer, waiver of counsel was not knowing or voluntary]; Tawadrus v.
Ashcroft, 364 F.3d 1099 (9th Cir. 2004) [respondent did not intelligently and knowingly waive right to
counsel and his due process rights were violated where his lawyer withdrew at the hearing and
respondent was required to go forward with asylum claim without counsel on 2 hours’ notice]; Montilla
v. INS, 926 F.2d 162 (2d Cir. 1991) [IJ may not conduct deportation hearing absent a clear waiver
because case is complex and respondent not informed of his rights]. In order for a waiver to be valid
an IJ must: (1) inquire specifically of respondent about whether he wishes to continue without a lawyer
and (2) receive a knowing, intelligent and voluntary affirmative response. Matter of C-B-, 25 I&N Dec.
888, 890 n.1 (BIA 2012) Page 596 [“Failure to obtain such a waiver is an effective denial of the right to
counsel”]. See e.g., Tawadrus v. Ashcroft, 364 F.3d at 1103; U.S. v. Mendoza-Lopez, 481 U.S. 828
(1987) [right to appeal not waived where there was no considered judgment and where aliens not
informed of their eligibility for suspension]; Reyes-Palacios v. INS, 836 F.2d 1154 (9th Cir. 1988);
Partible v. INS, 600 F.2d 1094 (5th Cir. 1979); Castro-O’Ryan v. INS, 847 F.2d 1307 (9th Cir. 1987);
Corado-Rodriguez v. INS, 828 F.2d 622 (9th Cir.), amended and superseded, 841 F.2d 865 (9th Cir.
1987) [denial of effective assistance where nonlawyer representative discouraged application for
asylum]. U.S. v. Gonzalez-Mendoza, 985 F.2d 1014, 1017 (9th Cir. 1993) [government has burden to
prove person intentionally relinquished or abandoned a known right or privilege]; U.S. v. Lopez-
Vasquez, 1 F.3d 751 (9th Cir. 1993) [courts indulge every reasonable presumption against waiver]; Cf.
Bhiski v. Ashcroft, 373 F.3d 363, 369–70 (3d Cir. 2004) [where respondent did not answer IJ’s
questions as to whether he would proceed without counsel, the court found it was too flimsy a
foundation to argue a due process violation].
(7) Right of Counsel to Receive Notice—Pursuant to 8 CFR §292.5(a) counsel representing a party in
any immigration matter has a right to be served with all relevant papers. Under 292.5(a) notice “shall
be given by or to, served by or upon, made by, or requested of the attorney or representative of record,
or the person himself if unrepresented;” Matter of ___, EAC 04-172-52316 (Jan. 30, 2008), AILA Doc.
No. 08081460[decision of VSC reversed and remanded where attorney of record was not served with
decision]; Matter of ___, EAC 04-147-53771 (Feb. 14, 2008), AILA Doc. No. 08081461[decision
reversed and remanded where NOID was sent to prior counsel of record]; SNS Enterprises, Inc., 2013-
PER-3 (Sept. 24, 2013) [revocation vacated where NOID not sent to employer’s counsel where CO
was on notice of new counsel’s correct address]; U.S. v. Dorsett, 308 F.Supp.2d 537, 543 (D.V.I. 2003)
[notice to a former attorney where a different attorney was representing the respondent may violate
due process even if respondent received notice directly].
(8) Appointed Counsel—There may be a right to appointed counsel under certain circumstances: (1)
Rehabilitation Act §504, Franco-Gonzalez v. Holder, 2013 WL 3674492 (C.D. Cal. Apr. 23, 2013)
[granting summary judgment on §504 grounds and finding Matter of M-A-M- and DHS regulations
insufficient]; Franco-Gonzales v. Holder, 828 F.Supp.2d 1133 (C.D. Cal. 2011) [mentally incompetent
respondent entitled to appointment by qualified representative who may be an attorney, law student or
law graduate directly supervised by a retained attorney or an accredited representative and
respondent’s father did not qualify]; Franco-Gonzales v. Holder, 767 F.Supp.2d 1034, 1051-58 (C.D.
Cal. 2010) [mentally incompetent respondents entitled to appointed counsel under section 504];
Criminal Justice Act. Johnson v. Ashcroft, 378 F.3d 164, 169 n.5 (2d Cir. 2004) [noting appointment of
counsel under the CJA to appeal in circuit court]; Saldina v. Thornburgh, 775 F.Supp. 507 (D. Conn.
1991) [granting CJA appointment]; Roman v. Ashcroft, 162 F.Supp.2d 755 (N.D. Ohio. 2001) [citing to
18 USC §3006A(a)(2)(B) and CJA PLA §IV(a)(2), the CJA applied in habeas challenging
constitutionality of mandatory detention]. But see Perez-Perez v. Hanberry, 781 F.2d 1477 (11th Cir.
1986) [rejecting CJA counsel for parole hearing concerning release]. No per se right to appointed
counsel in immigration proceedings. Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1976). But see
dissent by DeMascio, J. in Aguilera-Enriquez, supra. There are also limitations on the right to counsel
in civil proceedings even if it results in incarceration. Turner v. Rogers, 564 U.S. 431 (2011) [no per se
right to appointed counsel for indigent defendant facing civil contempt proceeding for failure to pay
child support where consequence is incarceration]. But see In re Gault, 387 U.S. 1 (1967) [right to
appointed counsel in civil juvenile delinquency proceeding that could lead to incarceration].There may
be a right to appointed counsel in federal in forma pauperis proceedings. 28 USC §1915(d). Santana v.
Chandler, 961 F.2d 514 (5th Cir. 1992). But no constitutional right to appointed counsel in habeas
proceeding. Lemeshko v. Wrona, 325 F.Supp.2d 778, 787 (E.D. Mich. 2004).
(9) Transfer of Client Away from Lawyer—No per se right to prevent transfer of respondent away from
counsel. Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) [no substantive due process violation in regard to
ICE’s interference in parent/child relationship and no pattern-or-practice claim may be brought to
challenge ICE raids that resulted in precluding counsel, transferring respondents out of state away
from counsel, and depriving them of bond because Page 597 these claims must be brought
individually under INA §242(b)(9)]; Committee of Central Am. Refugees v. INS, 795 F.2d 1434 (9th
Cir.), modified, 807 F.2d 769 (9th Cir. 1986) [rejecting constitutional and statutory right to prevent
transfer where no ongoing attorney-client relationship]; Sasso v. Milhollan, 735 F.Supp. 1045 (S.D. Fla.
1990). No right to be detained where respondent’s ability to obtain representation is the greatest.
Calla-Collado v. U.S. Att’y Gen., 663 F.3d 680, 685 (3d Cir. 2011) [transfer to Louisiana where
petitioner had no contacts and was forced to obtain less effective counsel does not violate his
constitutional or other rights]; Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1256 (4th Cir. 1995);
Avramenkov v. INS, 99 F.Supp.2d 210, 213–15 (D. Conn. 2000) [jurisdiction to contest transfer barred
by 242(a)(2)(B)(ii); no due process violation on interference with counsel or hindering witness absent
factual showing]. But see Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 566–67 (9th Cir. 1990)
[distinguishing Committee of Central Am. Refugees]; Louis v. Meissner, 530 F.Supp. 924 (S.D. Fla.
1981). Right to counsel is part of legislative history. Castro-O’Ryan v. INS, 847 F.2d 1307 (9th Cir.
1987) (en banc) [legislative history of INA §292 confirms Congress’s intent to give the right to counsel
at own expense]. ICE has established standards and procedures for transfer of persons in ICE custody
that require notification of the transfer to respondent’s counsel who has a G-28 on file after the client is
en route. See ICE Transfer Standards (June 16, 2004) at ¶ III, AILA Doc. No. 04092167. A G-28 no
longer has to be signed by the client for ICE purposes. Minutes, ICE AILA Liaison, Fall Meeting (Dec.
17, 2013), AILA Doc. No. 14050762. For a discussion of the transfer of a detainee after a habeas
petition is filed see Chapter 10, ¶ III.C.8 (p.1826), infra.
(10) Telephonic Appearance—A lawyer may file a motion to appear telephonically on behalf of a client in
master calendar and bond hearings. Immigration Court Practice Manual at 4.7(b). An IJ should
consider, among other factors, when deciding upon the motion the following:
why the attorney is not able to appear in person;

anticipated length and complexity of the hearing;
distance of the court from attorney’s location;
appropriate personal exigencies of the attorney;
a legitimate and unavoidable scheduling conflict arising subsequent to the scheduled master
calendar or bond hearing;
whether counsel is appearing pro bono;
whether there are circumstances requiring the attorney’s presence (such as the respondent
being a minor);
the response of opposing counsel;
the likelihood of any serious disruption of the docket;
significant technological obstacles; and
any issue of counsel abusing the privilege (including any history of technical difficulties in
reaching the attorney).
Memo, Neal, CIJ, EOIR, No. 08-04 (July 30, 2008), AILA Doc. No. 08080760.
(11) Limited Appearances—No limited appearance of counsel where objection raised as to attorney’s
authority. Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986); Matter of N-K- & V-S-, 21 I&N Dec. 879
(BIA 1997) [noting the “well-settled principle that there is no ‘limited’ appearance of counsel in an
immigration proceeding”], except as to bond hearings. 8 CFR §1003.17(a) [“The entry of appearance
of an attorney or representative in a custody or bond proceeding shall be separate and apart from an
entry of appearance in any other proceeding before the Immigration Court”]; 80 FR 9500 (Oct. 1,
2015). EOIR also recognizes that an IJ may allow a limited appearance, and that an attorney may
appear for a specific hearing “on behalf of” other counsel. Immigration Court Practice Manual at 2.3(d),
(j). Withdrawal of representation must be accomplished by written or oral motion. 8 CFR §1003.17(b).
Matter of Rosales, 19 I&N Dec. 655 (BIA 1988). Some authority indicates that counsel does not need
to submit an EOIR-28 to represent an applicant. Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.
1988), but EOIR disagrees. Immigration Court Practice Manual at 2.1(b); 8 CFR §§1001.1(i),(k)
[requiring anyone practicing or preparing forms to Page 598 file EOIR-28]. But see Northwest Immigr.
Rights Project v. Sessions, No. C17-716 RAJ, 2017 WL 3189032 (W.D. Wash. July 27, 2017) [citing
Button and Primus, the Court preliminarily enjoined USCIS on First Amendment over breath and
vagueness grounds from enforcing the regulation against a nonprofit, pro bono, legal assistance
organization that partially assisted applicants without submitting EOIR-28s in certain cases].EOIR-28
no longer requires the respondent’s signature. If counsel has been subject to disciplinary actions or
other restrictions on practice in any state, it must be disclosed on the G-28 and EOIR-27/28, Matter of
Sparrow, 20 I&N Dec. 920 (BIA 1994). If counsel changes his address, EOIR requires a new EOIR-27
for each case. EOIR Responses to EOIR/AILA Liaison Questions of Meeting Held Mar. 22, 2001 (Q.
4), reprinted in 20 AILA Monthly Mailing 397 (July/Aug. 2001), AILA Doc. No. 01050902(May 9, 2001).
Counsel is obligated to file an EOIR-28 with the IJ even if he has filed a G-28 with the Service.
Ghounem v. Ashcroft, 378 F.3d 740, 742 n.2 (8th Cir. 2004).
(12) Monitoring Attorney-Client Communications—Regulations permit the monitoring of attorney-client

communications including mail where, based on information from the head of a federal law
enforcement or intelligence agency, the AG “has substantial reason to believe that a particular inmate
may use communications with attorneys or their agents to further or facilitate acts of violence or
terrorism.” 28 CFR §501.3(d); 66 FR 55062–66 (Oct. 31, 2001). Except in the case of court
authorization, prior to monitoring attorney-client communications, written notice must be given to the
inmate and the attorney explaining the reason for the monitoring and that the conversations are not
protected by the attorney-client privilege. §501.3(d)(2).
(13) Notice to Counsel—Notice to counsel may be deemed sufficient notice to the alien. Ogunfuye v.
Holder, 610 F.3d 303, 305-07 & n.3 (5th Cir. 2010) [receipt of biometric notice by counsel was sufficient
and court upheld IJ’s dismissal for failure to timely obtain biometrics]; Sewak v. INS, 900 F.2d 667, 670
n.6 (3d Cir. 1990); Van Dos Reis v. Holder, 606 F.3d 1 (1st Cir. 2010) [respondent could not challenge
in absentia order for lack of notice where notice was sent to counsel]; Tobeth-Tangang v. Gonzales,
440 F.3d 537 (1st Cir. 2006) [motion to reopen denied where BIA decision was sent to respondent’s
attorney who never received it because he changed his address and did not submit an EOIR-33
pursuant to 8 CFR §1003.38(e)]; Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir. 1992). However,
where respondent insists that notice went to an attorney who did not represent him, notice is
insufficient and respondent’s due process rights could be implicated. Sewak, supra. The Service has
also been taken to task for failing to provide notice to counsel in regard to naturalization proceedings.
Reeves v. Morschorak, No. CV 92-2937 (C.D. Cal. July 7, 1992), reported in 11 AILA Monthly Mailing
679 (Sept. 1992). INS guidelines provided that an INS agent should notify the attorney if the INS
intended to interview a client. But such guidelines are not statutory and may not bar evidence obtained
from illegal questioning. U.S. v. Soto-Ornelas, 863 F.2d 1487 (10th Cir. 1988).
(a) Notice in Non-Removal Setting—DHS has issued regulations specifying when clients and
attorneys receive notice of DHS actions as follows: (1) if no attorney, USCIS will send notice to the
applicant or petitioner, 8 CFR §103.2(b)(19)(i); (2) if represented by attorney or accredited
representative notice will be sent to both petitioner/applicant and to counsel/representative, 8 CFR
§103.2(b)(19)(ii)(A); (3) if specified in the form or regulations, applicant/petitioner may request that
USCIS send original notices, RFEs, NOIDs and documents only to attorney/representative, Id.; (4)
if filed electronically, both applicant/petitioner and attorney/representative will receive electronic
notice, 8 CFR §103.2(b)(19)(ii)(B); (5) if I-797 with tear-off I-94 will send to attorney/representative
unless applicant/petitioner expressly request it be sent to her, 8 CFR §103.2(b)(19)(ii)(C); and (6) if
secure identity document such as an LPR card or EAD, DHS will send only to applicant or self-
petitioner unless there is specific consent to send to attorney/representative, 8 CFR §103.2(b)(19)
(iii). See 79 FR 64299-305 (Oct. 29, 2014). See also Policy Memo, PM-602-0127, Updated Paper
Version of Form G-28, (Nov. 17, 2015), AILA Doc. No. 15112330 [addressing new sections of the
G-28 in light of the regulatory changes]. For SOPs regarding how service centers treat G-28s, see
California Service Center, Contract, AILA Doc. No. 15081802; Vermont Service Center, Contract,
Doc. No. 15081803; Nebraska Service Page 599 Center, Contract, Doc. No. 15081804; and Texas
Service Center, Contract, Doc. No. 15081805.
(14) Service of Documents Electronically—ICE has begun electronic service of document between ICE
attorneys (Office of Chief Counsel) and the respondent or counsel for the respondent in removal
proceedings. The process called ICE eService is, at this point, voluntary. Applicants must register to
participate by visiting eserviceregistration.ice.gov. Once registered, login is through eservice.ice.gov.
Electronic filing with EOIR has not yet been established. ICE asserts that the process is consistent with
the Immigration Court Practice Manual (ICPM) and 8 CFR §1003.32 as well as the BIA Practice
Manual and 8 CFR §§1003.2(g)(1), 1003.3(a)(1), 1003.3(c). By accepting eService all parties waive
objections relating to service requirements under ICPM Chap. 3.2(c) and the BIA Practice Manual
Chapter 3.2. The following documents may be served through ICE eService: motions, briefs,
applications for relief, exhibits in support of applications for relief, EOIR and DHS forms including
EOIR-26, 27 & 28 and G-28s, proposed joint motions, general case correspondence as long as it is
included as an attached document because simple emails will be rejected. Documents (1) must be
Adobe Acrobat (PDF) or Microsoft Word and submitted through an individual’s ICE eService account;
(2) cannot exceed 50 megabytes (50 MB) in size; (3) must comply with all filing requirements under the
ICPM and BIA Practice Manual; and (4) must include EOIR 28 or 27 as appropriate. An email will
advise senders that the submission was received and once Office of Chief Counsel completes its
review of the submission it will produce a receipt within 3 business days indicating whether it has
accepted or rejected the submission. For accepted filings, the receipt will constitute proof of service.
Acceptance does not constitute a waiver of any evidentiary objections. ICE, Office of the Principal
Legal Advisor, What is ICE eService? (Aug. 18, 2017), AILA Doc. No. 17081861. Original motions or
applications for relief or other documents directed to the court must still be filed with the immigration
court in person or through mail or courier service.
(15) Admission/Stipulation by Counsel—”Absent egregious circumstances, a distinct and formal

admission made before, during or even after a proceeding by an attorney acting in his professional
capacity binds his client as a judicial admission.” Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA
1986); Cabrera v. Lynch, 805 F.3d 391, 392-94 (1st Cir. 2015) [lawyer bound by strategic decision to
seek only review of the waiver of the I-751 joint petition before the IJ and to forego seeking review of
the I-751 joint petition itself where USCIS relied on denial of joint-petition as basis to deny the waiver];
Vanegas-Ramirez v. Holder, 768 F.3d 226, 233-37 (2d Cir. 2014) [despite assumption that respondent
was subject to egregious constitutional violation permitting suppression under the Fourth Amendment,
the respondent’s decision to voluntarily concede removability because he believed it would increase
his chances of obtaining a change of venue was an independent source of information that could be
used]; Ahmed v. Holder, 765 F.3d 96, 102 (1st Cir. 2014) [bound by lawyer’s concession that
respondent entered EWI when he maintained he was inspected and admitted]; Lima v. Holder, 758
F.3d 72 (1st Cir. 2014) [lawyer’s concession that client was removable for having been convicted of two
CIMT crimes and that one conviction was for breaking and entering home was binding and sufficient
for removal]; Urizar-Carrascoza v. Holder, 727 F.3d 27 (1st Cir. 2013) [counsel’s concession that client
procured visa by fraud was binding]; De Rodriguez v. Holder, 724 F.3d 1147, 1152 (9th Cir. 2013)
[stipulation by respondent and counsel as to removability are binding even where respondent claims a
change in the law]; Perez-Mejia v. Holder, 663 F.3d 403, 409-17 (9th Cir. 2011)[concessions and
admissions by respondent or his counsel at the pleading stage are binding, 8 CFR §1240.10(c) unless
material issue remains in dispute or the IJ is not satisfied in which case the matter moves to the
evidentiary stage under 8 CFR §1240.10(d)]; Ali v. U.S. Att’y Gen., 643 F.3d 1324 (11th Cir. 2011)
[lawyer’s strategic concession that client was removable for making a material misrepresentation was
not ineffective assistance]; Torres-Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009) [counsel’s
concession of deportability of respondent was not ineffective assistance of counsel but a strategic
decision]. The egregious circumstances, where an admission or stipulation may not apply are where:
(1) it would produce an unjust result because it was inadvertent, there was an intervening change in
the law or an equivalent reason; (2) it was factually untrue or incorrect; or (3) it was the result of an
unreasonable professional judgment. See Matter of Velasquez, 19 I&N Dec. at 383; Page 600 Hanna
v. Holder, 740 F.3d 379, 387-90 (6th Cir. 2014) [relying on criteria in Matter of Velasquez in a modified
form, the court found that respondent was not bound by counsel’s stipulation that he committed a
CIMT because there was record evidence that crime was not a CIMT and an intervening change in the
law finding that Mich. Comp. Laws §750.82 was divisible and therefore not categorically a CIMT];
Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) [admission to alien smuggling by
assistance of counsel]; Solis-Chavez v. Holder, 662 F.3d 462, 466-69 (7th Cir. 2011) [where counsel in
immigration proceeding conceded ineligibility for JRAD because JRAD not entered within 30 days of
sentencing court found ineffective assistance because 30-day provision was not jurisdictional]. But see
Calla-Collado v. U.S. Att’y Gen., 663 F.3d 680, 683-84 (3d Cir. 2011) [concession to removal grounds
to obtain change of venue was a strategic decision and petitioner failed to show prejudice]. The better
practice for counsel is not to concede to charges or removability and to require a strict burden of proof
by the government. Matter of J.R. Velasquez, 25 I&N Dec. 680, 684 n.7 (BIA 2012) [had respondent
admitted existence of his conviction government would have met burden without authentication of
documents]; Kane v. Holder, 581 F.3d 231, 237–38 n.13, 16 (5th Cir. 2009) [found no error in decision
in Matter of A-K-, 24 I&N Dec. 275 (BIA 2007)that prohibited asylum application where counsel stated
he was only filing withholding]; Torres-Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009) [counsel’s
concession of deportability of temporary resident was not ineffective assistance of counsel but a
strategic decision to file for cancellation]; Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009) [IJ does not
err by accepting counsel’s concession of removability when it is not plainly contradicted by record;
admissions by parties are not subject to judicial review to ensure they are supported by the record];
Roman v. Mukasey, 553 F.3d 184 (2d Cir. 2009) [counsel’s admission of NTA charges including
conviction is sufficient to find deportability]; Karim v. Gonzales, 424 F.3d 109 (1st Cir. 2005) [where
lawyer conceded removability and new lawyer asks to withdraw concession without offering any
reason, court upheld BIA’s denial]; De Zavala v. Ashcroft, 385 F.3d 879 (5th Cir. 2004) [no prejudice
and no due process violation where counsel conceded incorrect charge that respondent was
inadmissible at entry as a nonimmigrant when she was inadmissible as an immigrant]; Selimi v. INS,
312 F.3d 854, 860–61 (7th Cir. 2002) [admission as to excludability by counsel to obtain change of
venue barred insufficiency of evidence claim]; Rarogal v. INS, 42 F.3d 570 (9th Cir. 1994) [IJ bound by
INS concession in §212(c) case that respondent was rehabilitated and deserved relief]; Gordon v. INS,
36 F.3d 249 (2d Cir. 1994) [where INS stipulates to stay of deportation, respondent does not become a
fugitive by failing to comply with bag and baggage letter]; Ali v. Reno, 829 F.Supp. 1415, 1424–25
(S.D.N.Y. 1993), aff’d, 22 F.3d 442 (2d Cir. 1994). This includes tactical actions by counsel in the
absence of egregious circumstances. Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995). See also INS v.
Doherty, 502 U.S. 314, 327 (1992). However, legal determinations may not be the subject of an
admission. Garcia v. U.S. Att’y Gen., 462 F.3d 287, 290 n.6 (3d Cir. 2006) [an admission that a person
committed an aggravated felony even if attorney did not contest it, is not binding because “the legal
classification of prior convictions is not a factual proposition susceptible of admission by a litigant. It is
a legal proposition that must be determined by a court”]. The meaning and effect of a stipulation in a
deportation or removal proceeding is a question of law that may be reviewed by the federal court.
Enriquez-Gutierrez v. Holder, 612 F.3d 400, 411-13 (5th Cir. 2010) [rejected the characterization that
the interpretation of a stipulation is a question of fact and reversed the BIA’s interpretation of a
stipulation on INA §212(c) relief in a deportation proceeding]. There is also a question as to whether
counsel may stipulate to standard of review to be applied. Safety Nat’l Cas. Corp. v. DHS, 711
F.Supp.2d 697, 705-06 (S.D. Tex. 2008) [discussing whether DHS may stipulate to a de novo standard
of review in an APA case]. Counsel’s decision to withdraw an application for relief is not considered an
admission; he may seek to reinstate it where he did so under a mistaken belief in the facts and he
establishes a prima facie eligibility. Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003) [where
lawyer withdrew asylum in the mistaken belief his client was eligible for cancellation, the IJ/BIA erred in
not allowing him to reinstate asylum after demonstrating prima facie eligibility]. Even where counsel
accepts an IJ’s decision as final, the client has not made an intelligent and knowing waiver of appeal
where proceedings were not translated. U.S. v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004).
See also Page 601 U.S. v. Calderon, 391 F.3d 370, 375 (2d Cir. 2004) [representation alone is not
enough to conclude there was a knowing and intelligent waiver]. Government counsel’s stipulation may
be overridden by the AG. Matter of A-H-, 23 I&N Dec. 774, 790–91 (AG 2005) [the AG has authority to
remand for additional fact-finding including the authority to override DHS stipulation that respondent’s
life or freedom would be threatened if returned to Algeria]. An admission of facts in the NTA by
respondent may, nevertheless, bind the government. Hakopian v. Mukasey, 551 F.3d 843 (9th Cir.
2008) [concession by respondent to NTA allegation as to the date of arrival is a judicial admission that
binds the government regarding that date for purposes of determining whether asylum application was
timely]. However, it will bind the government only if uncontested. Cortez-Pineda v. Holder, 610 F.3d
1118, 1120-23 (9th Cir. 2010) [where petitioner did not contest NTA but DHS subsequently challenged
it Hakopian distinguished].
(a) Pro Se Stipulation—Where pro se respondent stipulates to a matter that is contrary to the record
or fact, it may not be binding. Orabi v. U.S. Att’y Gen., 738 F.3d 535, 537-39 (3d Cir. 2014) [where
pro se respondent states he will withdraw in writing his criminal appeal but the record of the 2nd
Circuit indicates the criminal appeal is pending, there is no final conviction to support IJ/BIA
removal order].
(b) Exhaustion—Guzman-Rivadeneira v. Lynch, 822 F.3d 978, 983-84 (7th Cir. 2016) [rejecting on-its-
face challenge to ineffective assistance and requiring exhaustion even where BIA mentioned
Velasquez but respondent failed to raise egregious circumstances argument].
(16) Waiving Client’s Appearance—Ramos v. Gonzales, 414 F.3d 800, 804–06 (7th Cir. 2005) [no due
process violation where lawyer with EOIR-28 waived client’s presence at all hearings and there was no
showing of prejudice, despite respondent’s claim that IJ should have determined that lawyer was not
authorized to do so].
(17) Withdrawal of Counsel—Although an IJ has wide discretion to allow counsel to withdraw, she must
take into consideration the need to protect the respondent. Immigration Judge’s Benchbook I:8:I.D.5. A
“lawyer’s professional responsibility upon withdrawal includes the duty to take reasonable steps to
avoid foreseeable prejudice to the rights of the client, including giving notice to the client, allowing time
for the employment of other counsel, and delivering to the client all papers and property to which the
client is entitled. Model Rules of Prof. Conduct R. 1.16(d).” Gjeci v. Gonzales, 451 F.3d 416, 421–23
(7th Cir. 2006) [where IJ failed to take steps to protect respondent’s interests before permitting
withdrawal of counsel and then denied respondent a continuance, due process was violated].
(18) Registration of Counsel and Accredited Representatives—All attorneys and accredited

representatives must formally register with EOIR as a condition of practicing before the immigration
court or the BIA. 78 FR 19400-08 (Apr. 1, 2013); 8 CFR §1292.1(f); Immigration Court Practice Manual
§2.3(b)(1). Registration will include the one-time in-person presentation of a photo identification
subsequent to electronic registration. An IJ may, under extraordinary and rare circumstances, allow an
unregistered attorney or accredited representative to appear on a one-time basis conditioned upon he
or her registering promptly thereafter. Id. The registration procedures include future changes of
address. 78 FR 28124 (May 14, 2013) [must change each EOIR-27 and EOIR-28 if addressed
changed]; EOIR Fact Sheet, FAQs, and General Information (May 14, 2013), AILA Doc. Nos.
13052344–46and at http://www.justice.gov/eoir/engage/eRegistration.htm. Counsel must log in at least
once per year in order to maintain active registration. You can re-activate your account online by
emailing eRegistration.info@usdoj.gov.
7.g. Government Counsel—The obligation of government counsel is to see that the law is observed, not in
victory or defeat. Reid v. INS, 949 F.2d 287 (9th Cir. 1991) [“Counsel for the government has an interest
only in the law being observed, not in victory or defeat in any particular litigation”]; Freeport-McMoRan Oil
& Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992) [citing ABA Code of Professional Responsibility
holding government lawyers to a higher standard than private lawyers and finding “it astonishing that an
attorney for a federal administrative agency could so unblushingly deny that a government lawyer has
obligations that might sometimes Page 602 trump the desire to pound an applicant into submission”]. DHS
counsel also has an obligation to “uphold international refugee law, including the United States’ obligation
to extend refuge where such refuge is warranted.… [T]he government wins when justice is done.” Matter
of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997) [Handbook for Trial Attorney §1.3 (1964) requires that “the
respondent should be aided in obtaining any procedural rights or benefits required by the statute,
regulation and controlling court decision”]. At least one court has chastised government counsel for
“disingenuous or embarrassingly naïve” arguments in an asylum case. Lusingo v. Gonzales, 420 F.3d
193, 201–02 (3d Cir. 2005) [court disturbed at a government reliance on statements from the ambassador
of that country that no harm would come to the asylum applicant]. Another imposed severe sanctions
against government counsel for not being candid to the court including requiring all DOJ lawyers who are
members of the Bar in the 26 states involved in the law suit to take a yearly ethics course. Texas v. U.S.,
2016 WL 3211803 (S.D. Tex. May 19, 2016). Government counsel’s obligations also extend to preparation
of the immigration court’s transcript when it is flawed or missing. Ortiz-Salas v. INS, 992 F.2d 105, 107
(7th Cir. 1993) [government counsel’s failure to remedy inadequate transcript described as prosecutorial
misconduct]. In denaturalization cases based on proof of criminal activities, government counsel must
follow the Brady rule and disclose all exculpatory evidence. Demjanjuk v. Petrovsky, 10 F.3d 338, 353 (6th
Cir. 1993). But the U.S. Attorney may prosecute a criminal denaturalization case and a civil revocation
case simultaneously. U.S. v. Clarke, 628 F.Supp.2d 1, 6–8 (D.D.C. 2009) [it was not a conflict for U.S.
Attorney in district to proceed simultaneously on a civil revocation of naturalization and a criminal case
based upon the naturalization]. For citations to DOJ authority to represent government agencies, see 28
USC §518; 28 CFR §50.15; 28 CFR pt. 0, Apdx. Subpart 1; Memo, No. 170670, Office of Legal Counsel
(1982); Devins and Herz, The Uneasy Case for Department of Justice Control of Federal Litigation, 5
Journal of Constitutional Law 558 (Apr. 2003).
7.h. Friend of the Court—In light of the large volume of cases in the immigration court, arising in large
measure from the treatment of minors entering the U.S., a number of immigration courts have allowed
legal services organizations to act as “friends of the court” and monitor hearings without submitting G-28s
requiring specific representation. OCIJ has recognized the importance of this contribution to assisting the
IJs and the children. Memo, O’Leary, OCIJ, Friend of the Court Guidance (Sept. 10, 2014), AILA Doc. No.
14091144 [citing 8 CFR §§1240.1(a)(1)(iv), 1292.1(d) and state cases for authority]. The “friend of the
court” does not represent the respondent and the scope of the nonrepresentational role is in the court’s
discretion. Id. at 2. The lawyer and the court need to clearly define to the respondent/child the lawyer’s
role in the proceeding so the respondent does not misunderstand and believe he is being represented. Id.
However, the memo suggests that the types of activities a “friend of the court” might assist are: (1) gather
and convey basic information regarding the status of respondent’s case, such as reunification status,
efforts to secure representation and other sensitive information; (2) help respondent navigate courtroom
procedures by assisting respondent with those procedures, reviewing and filling out forms, and insuring
court appearance; and (3) serve as community liaison to help respondent obtain resources.
7.i. Unauthorized Practice of Law—The unauthorized practice of law is a matter of state law and state bars
have enjoined UPL. Florida Bar v. Corpa Immigr., 642 So.2d 548 (Fla. 1994); Cincinnati Bar Assn. v.
Massengale, 568 N.E.2d 1222 (Ohio 1991); In re Tatone, 456 N.W.2d 717 (Minn. 1990). State legislatures
may also bar UPL. Colo. Rev. Stat. §§6-1-727, 12-55-110.3 [outlawing UPL in Colorado as a deceptive
trade practice ]. New York State set up a compensation fund where victims were defrauded by two UPL
immigration service organizations. Schneiderman, A.G. New York, N.Y. AG Announces $2.2 Million
Restitution Fund for Victims of Immigration Scam (July 21, 2014), reprinted in 91 No. 29 Interpreter
Releases 1325 (July 28, 2014). DHS/DOJ regulations bar “visa consultants or any other person who is not
a licensed attorney or authorized representative pursuant to” 8 CFR pts. 292 and 1292 from engaging in
representation. Legal Opinion, Rees, General Counsel, CO 292.2 (June 9, 1992), reprinted in 69 No. 25
Interpreter Releases 803, 823–28 (July 6, 1992); Fact Sheet, EOIR, Who Can Represent Aliens in
Immigration Proceedings (Oct. 2, 2009), AILA Doc. No. 09100218 [bans notarios, visa consultants and
immigration consultants from representing anyone in proceedings]; Q&A;: DHS Implements Regulation to
Enhance Attorney Discipline Program, AILA Doc. No. 10020322 [DHS bars Page 603 notaries,
immigration consultants and immigration service providers from representing people before DHS]. DHS
explicitly prohibits lawyers who are solely licensed in foreign countries from practicing before DHS in the
United States. 8 CFR §292.1(a)(2), (a)(6); 75 FR at 5226. “Representation,” “practice” and “preparation”
are specifically defined in the regulations. 8 CFR §§1.1(i) & (k), 1001.1(i) & (k). See also Memo, Virtue,
Acting Gen. Counsel (Aug. 6, 1993), reprinted in 70 No. 35 Interpreter Releases 1205, 1213–18 (Sept. 13,
1993) [INS cannot authorize or endorse activity of nonaccredited organizations]; Letter, Rees, General
Counsel, CO 292.2 (May 20, 1993), reprinted in 72 No. 37 Interpreter Releases 1311, 1321–24 (Sept. 25,
1995) [selecting forms constitutes giving legal advice]. DOS regulations, however, do not bar visa
consultants. Letter, Adams, Deputy Asst. Secy. of State for Visa Services (Dec. 28, 1992), reprinted in 70
No. 6 Interpreter Releases 181, 196–97 (Feb. 8, 1993). EOIR has established a Fraud and Abuse
Prevention Program that, among other matters, is to root out fraud in immigration proceedings including
fraud by persons engaged in UPL. Fact Sheet, EOIR, Fraud and Abuse Prevention Program (June 2016).
The more recent iteration of the program seems to emphasize attorney fraud. CompareFact Sheet, supra,
withFact Sheet, EOIR, Fraud and Abuse Prevention Program (June 2017), AILA Doc. No. 17062840;
EOIR.Fraud.Program@usdoj.gov.
A lawyer who is not a member of the bar in a particular state may nevertheless practice immigration law in
that state to the degree he limits the practice exclusively to federal immigration matters. AFM 12.1(B). See
generally Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963) [prohibiting Florida Bar from enjoining
non-Florida lawyer the right to practice patent law exclusively in Florida]. However, a lawyer who is
admitted outside of the U.S. may only represent applicants or petitioners in matters outside the U.S. AFM
12.1(C).
7.j. Law Students, Accredited Representatives, and Recognized Organizations
(1) Law students may represent persons before DHS/EOIR if they are participating in a legal aid program
or clinic conducted by a law school or nonprofit organization under the direct supervision of a faculty
member, attorney, or accredited representative, and they are appearing without direct or indirect
remuneration from the person they represent. 8 CFR §§292.1(a)(2)(ii)–(iv), 1292.1(a)(2)(ii)–(iv). In
contrast, law graduates need not appear through a legal aid program or clinic as long as they appear
under the supervision of a licensed attorney or accredited representative without direct or indirect
remuneration from the client. 8 CFR §292.1(a)(2)(iii). The law student or law graduate may be paid as
long as they are not paid by the client. The DHS/EOIR official must approve the appearance of the law
student or law graduate. AFM 12.1(e).
(2) A person seeking to be an accredited representative of a recognized organization must apply to the
Office of Legal Access Programs (“OLAP”) of EOIR. To be an accredited representative a person must
be requested by an accredited organization and must: (1) meet character and fitness requirements; (2)
be employed or volunteer at the recognized organization; (3) not be an attorney; (4) not subject to
disciplinary proceedings before the Bar; (5) not have been found guilty of a serious crime; and (6)
possess broad knowledge and adequate experience in immigration law. 8 CFR §1292.12(a).
Accreditation is good for three years unless it or organization is terminated or revoked. 8 CFR
§1292.12(d). The application for accreditation is an EOIR-31A. 8 CFR §1292.13(a). OLAP may renew
or terminate accreditation. 8 CFR §§1292.16-.17. Once accredited the representative need not apply
to be accredited in multiple locations of an organization. Matter of United Farm Workers Found., 26
I&N Dec. 454 (BIA 2014) [per-branch accreditation is unnecessary where organization has been
recognized]. To obtain accreditation for a representative, the applicant must show that she “has
recently completed at least one formal training course designed for new practitioners and that the
training provided a solid overview of the fundamentals of immigration law and procedure.” Matter of
Cent. Calif. Legal Servs., Inc., 26 I&N Dec. 105, 106 (BIA 2013).
(3) The Office of Legal Access Programs (OLAP) within EOIR also maintains a process to allow nonprofit
religious, charitable, social service, or similar organizations established in the U.S. to be recognized to
practice before DHS and/or in proceedings before EOIR. 8 CFR §§1003.110, 1292.11-20; 81 FR
92346-73. An organization may obtain recognition if it establishes that it is: (1) a nonprofit religious,
charitable, social service or similar organization that provides immigration legal services primarily to
low-income and indigent clients and if it Page 604 charges fees has a written policy for
accommodating clients unable to pay fees; (2) a 501(c)(3) tax-exempt organization; (3) applying to
have one accredited representative concurrently approved; (4) an organization that has access to and
knowledge of immigration law and procedure; and (5) an organization that has designated an
authorized officer to act on its behalf. 8 CFR §1292.11; Matter of E-A-C-, Inc., 24 I&N Dec. 556 (BIA
2008) [setting forth criteria to obtain recognition including access to legal resources, a local attorney or
accredited representative, and the ability to handle a full range of immigration legal services or the
ability to direct applicants to other legal assistance]; Policy Memo, USCIS, PM 602-0039, The Role of
USCIS District Directors in the BIA Recognition and Accreditation Process, (June 7, 2011) [procedures
for USCIS input into BIA decision about accreditation]; AFM at 12.6. The application is on form EOIR-
31. 8 CFR §1292.13(a). Before OLAP grants accreditation it notifies USCIS, ICE and EOIR who may
comment. 8 CFR §§1292.13(b)-(d). The initial validity period is for 6 years. 8 CFR §1292.11(f). OLAP
may not renew or may terminate an organization. 8 CFR §§1292.16-.17. In order to renew, the
organization must have an accredited representative or be applying for one. 8 CFR §§1292.16(c),
1292.11(a) and where it ceases to maintain an accredited representative it will be placed on an
inactive status, but not terminated. 8 CFR §1292.16(i). The organizations are no longer required to
maintain a nominal fee structure and are not prohibited from having a substantial part of their budget
derived from client charges. 81 FR 92346, 92348-49 (Dec. 19, 2016). But an organization may not be
approved that is physically co-located or financially associated with a for-profit venue unless it is
confident that the organization will not be influenced by the pecuniary interests of the commercial
affiliate. Matter of St. Francis Cabrini Immigr. Law Ctr., 26 I&N Dec. 445 (BIA 2014). It should have
access to libraries. Matter of Lutheran Ministries of Fla., 20 I&N Dec. 185 (BIA 1990) [organization
should have access to libraries].Where adverse evidence and an adverse recommendation is
presented to deny recognition, organization has burden to rebut. Matter of Chaplain Servs., Inc., 21
I&N Dec. 578 (BIA 1996). An organization may seek partial or full accreditation for representatives
before DHS and/or EOIR upon the appropriate showing for accredited representatives. Matter of E-A-
C-, Inc., supra.
7.k. Attorney’s Ethical Conduct—Some general principles regarding a lawyer’s ethical conduct in
immigration include:
(1) Knowing or with reckless disregard making a false or willfully misleading statement. In re Salberg,
276 A.D.2d 19 (1st Dep’t N.Y. 2000) [disbarred for presenting more than 25 visa applications
containing false statements]; In re Purizhansky, 42 A.D.3d 20 (4th Dep’t N.Y. 2007) [suspended for
letter containing false statements in letter for temporary work visa].
(2) Engaging in frivolous behavior or ineffective assistance. In re Cuber, 19 A.D.3d 58 (1st Dep’t N.Y.
2005) [suspended for neglecting legal matters and utilizing services of a nonlawyer immigration
service].
(3) Forging or falsifying documents. In re Cohen, 40 A.D.3d 61 (1st Dep’t 2007) [suspended for
backdating document to claim it was timely filed]; In re Nanna, 9 A.D.3d 230 (1st Dep’t N.Y. 2004)
[backdated and created false documents regarding labor certification].
(4) Failing to file or to appear. In re Koenig, 104 A.D. 3d 221, 223 (1st Dep’t N.Y. 2013) [suspended for
failing to file 9 briefs].
(5) Failure to clarify representation in engagement letters. Dignity Health v. Seare (In re Seare), 493 B.R.
158, 190 (Bankr. D. Nev. 2013) [bankruptcy attorney sanctioned for failing to define and explain the
limitations of his representation to his client]; DePape v. Trinity Health Sys., 242 F.Supp.2d 585, 592
(N.D. Iowa 2003) [lawyer sent engagement letter to medical center stating he was representing both
center and Dr. DePape but never sent copy of retention letter to DePape, never followed up with him
the requirements of a TN and H-1B visa, and never called to ensure he understood visa requirements.
$278,736.20 court award]; Brown Rudnick, LLP v. Surgical Orthomedics, Inc., 2014 U.S. Dist. LEXIS
96097 *45 (S.D.N.Y. July 15, 2014) [law firm denied fees where client, in violation of arbitration clause,
sued in federal court where nothing in the contract provides for award of fees if there is a court suit].
(6) Outsourcing and using paraprofessionals or agents. Mazatlan, Inc., 2011-PER-1474 (Jan. 27, 2012)
[extending attorney’s suspension and placing other conditions on his representation Page 605 to
insure that company generating the ETA 9089s are adequately supervised]; Kucharski, 2000-INA-116
(Sept. 18, 2002) [agent suspended for 6 months because of “reckless negligence in maintaining a
willful ignorance about the details of [a fraudulent] application and in relying solely on a third party
intermediary for communication with his client”]; In re McClain, 719 S.E.2d 675 (S.C. 2011) [two year
suspension for failure to supervise wife/bookkeeper who embezzled $75,000 from client’s trust
account].
(7) Failing to recognize person as client. The relationship is usually implied from the circumstances and
the client’s reasonable reliance and absence of fee payment or agreement is not necessarily
controlling. A preliminary consultation may trigger fiduciary duties especially confidentiality and actual
employment need not be undertaken to have a client relationship. Westinghouse Elec. Corp. v. Kerr-
McGee Corp., 580 F.3d 1311 (7th Cir. 1978).
(8) Failing to maintain client’s confidences. Kilpatrick v. Wiley, rein & Fielding, 37 P.3d 1130 (Utah 2001)
[confidentiality owed to former client even after representation ends]; Maritrans GP, Inc. v. Pepper,
Hamilton & Scheetz, 602 A.2d 1277 (Pa. 1992) [may not represent subsequent client whose interests
are materially adverse to former client in matters firm represented former client]. But see People v.
DePallo, 729 N.Y.S.2d 649 (2001) [attorney did not violate duty of confidentiality by disclosing client’s
perjury because intent to commit crime is not protected]; Goodsell v. The Miss. Bar, 667 So.2d 7 (Miss.
1996) [lawyer knowingly allowed witness to testify untruthfully].
(9) Suggesting or altering testimony of client. Geders v. U.S., 425 U.S. 80, 90 n.3 (1976) [distinguishing
between discussing testimony and seeking to improperly influence it]; In re Storment, 873 S.W.2d 227
(Mo. 1994) [lawyer counseled and assisted client to testify untruthfully]; In re Edson, 530 A.2d 1246
(S.Ct. N.J.1987) [same]; In re Deutsch, 286 A.D.2d 91 (1st Dep’t N.Y. 2001) [disbarred former senior
partner in immigration firm after finding of guilt in federal court for witness tampering by removing
physical evidence from, and inserting fabricated exculpatory evidence into, client file].
(10) Engaging in rude and frivolous behavior to clients and adversaries. In re Law Firm of Wilens &
Baker, 9 A.D.3d 213, 217 (1st Dep’t N.Y. 2004) [immigration firm subject to public censure due to rude
and discourteous behavior to clients]; Matter of Vincenti, 704 A.2d 927, 931 (N.J. 1998) [disbarred for
abusive, insulting and profoundly vulgar language to opposing counsel].
7.l. Attorney Sanctions
8 CFR §§1003.101-109; 65 FR 39513 (June 27, 2000); 73 FR 44178 (July 30, 2008) 73 FR 76914-26
(Dec. 18, 2008); 77 FR 2011 (Jan. 13, 2012); [EOIR Rules]; 78 FR 24669 (Apr. 26, 2013) [adopted as final
Jan. 13, 2012 rules]; Fact Sheet, EOIR, Disciplinary Program and Professional Conduct Rules for
Immigration Attorneys and Reps. (June 29, 2014), AILA Doc. No. 14070146.
(1) Contempt—The IJ has authority to sanction by civil money penalty any action or inaction that is in
contempt of the IJ’s “proper exercise of authority” under the INA. INA §240(b)(1), 8 USC §1229a(b)(1).
(2) Frivolous Behavior—INA §240(b)(6), 8 USC §1229a(b)(6). The AG is directed under IIRIRA to
promulgate regulations that: (1) define frivolous behavior for which attorneys may be sanctioned; (2)
specify the circumstances under which an administrative appeal of a decision or ruling will be
considered frivolous and will be summarily dismissed; and (3) impose appropriate sanctions (which
may include suspension and disbarment) in the case of frivolous behavior. The regulations shall not
limit the BIA’s authority pursuant to 8 CFR §§292.3 to take action with respect to inappropriate
behavior. The Supreme Court, in another context, has defined frivolous as lacking “an arguable basis
either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325-27 (1989) [factual allegations are “clearly
baseless” and legal theories “indisputably meritless”].
(3) Grounds for Discipline [ 8 CFR §1003.102]—Regulations provide for disciplinary sanctions against an
attorney who:
charges “grossly excessive” fees;

bribes or attempts to bribe, coerces, or attempts to coerce by any means whatsoever any
person in connection with a case; Page 606
knowingly or with reckless disregard makes a false statement of material fact or law;
solicits professional employment through in-person or live telephone contact or through the use
of runners;
is subject to a final order of disbarment or suspension or has resigned with an admission of
misconduct
Matter of Truong, 24 I&N Dec. 52 (BIA 2006) [7-year suspension upheld following NY
state disbarment]; Matter of Ramos, 23 I&N Dec. 843 (BIA 2005) [following rebuttable
presumption in Gadda and disbarring attorney from practice before EOIR and DHS];
Matter of Gadda, 23 I&N Dec. 645, 648 (BIA 2003) [final order of disbarment by state
creates a rebuttable presumption that disciplinary sanctions should follow. 8 CFR
§1003.103(b)(2). Presumption can be rebutted only upon a showing that the underlying
disciplinary proceeding resulted in a deprivation of due process, that there was an
infirmity of proof establishing the misconduct, or that discipline would result in injustice];
Gadda v. Ashcroft, 363 F.3d 861 (9th Cir. 2004) [state supreme court had jurisdiction to
disbar attorney who exclusively practiced immigration law and such action was not
preempted];
makes a false or misleading communication about qualifications and services;

engages in contumelious or otherwise obnoxious conduct which would constitute contempt of
court in a judicial proceeding;
has been found guilty of, or pleaded guilty or nolo contendere to a serious crime;
falsely certifies a copy of a document as being a true and complete copy of an original;
engages in frivolous behavior in EOIR proceedings, or before any other administrative appellate
body;
engages in conduct that constitutes ineffective assistance of counsel;
repeatedly fails to appear for scheduled hearings in a timely manner without good cause;
assists any person, other than a practitioner in the performance of activity that constitutes UPL;
engages in conduct that is prejudicial to the administration of justice or undermines the integrity
of the adjudicative process; Matter of Singh, 26 I&N Dec. 623 (2015) [suspended for 16 months
and prohibited from making telephonic appearances for 7 years where he enlisted his legal
assistant to impersonate him during multiple telephonic appearances before IJs].
fails to provide competent representation;
fails to abide by a client’s decisions concerning the objectives of representation and fails to
consult with the client as to the means by which they are to be pursued;
fails to act with reasonable diligence and promptness in representing a client;
fails to maintain communication with the client throughout the duration of the client-practitioner
relationship including promptly consulting with the client concerning any decision his informed
consent is needed, keeping the client reasonably informed about the status of his case, and
promptly complying with reasonable requests for information;
fails to disclose to the adjudicator legal adverse authority in the controlling jurisdiction;
fails to submit an appropriate EOIR 28/29 or G-28 as part of a pattern or practice of the attorney
For pro bono attorneys making limited appearances who must file G-28 or note they were
the document preparer, see Interim Guidance on Notice of Entry Requirement in Pro
Bono Clinics (Mar. 30, 2010), AILA Doc. No. 10041230
repeatedly files boilerplate motions, briefs or claims which reflect little or no attention to the
specific factual or legal questions.
8 CFR §1003.102(a)–(u). The rules generally reflect the substantive grounds of misconduct in the ABA
Model Rules of Professional Conduct. 73 FR at 76915. Page 607
In regard to “grossly excessive” fees, DOJ has recognized that: “Expert jurists in immigration law who
command higher fees for their services than other immigration practitioners would not be in violation of
the regulations based solely on their fee.” 65 FR 39513, 39518 (June 27, 2000). Moreover,
contumelious or obnoxious conduct requires a “finding of contempt [as a] prerequisite to the imposition
of disciplinary action pursuant to this subsection.” 65 FR at 39518. A “serious crime” includes any
felony or lesser crime involving interference with the administration of justice, false swearing,
misrepresentation, fraud, willful failure to file income tax returns, deceit, dishonesty, bribery, extortion,
misappropriation, theft, or attempt, conspiracy or solicitation to commit a serious crime. 8 CFR
§1003.102(h). Summary disciplinary proceedings cannot be concluded until all direct appeals from the
criminal matter have been completed. 8 CFR §1003.103(b). Frivolous behavior occurs when an
attorney “knows or reasonably should have known that his or her actions lack an arguable basis in law
or in fact, or are taken for an improper purpose, such as to cause unnecessary delay.” 8 CFR
§1003.102(j)(1). An ineffective assistance of counsel claim need not be based upon an IJ’s order. 73
FR at 76917. Under the rule “r” regarding communication with clients, the attorney does not have to
provide “all translation services” for the client and “should not have to locate their clients and should be
able to rely on the contact information provided by their clients.” However, if counsel cannot find his
client he must inform EOIR. 73 FR at 76919. If a lawyer is engaging in practice or preparation before
EOIR or DHS under 8 CFR §1001.1(i) and (k), he should enter an appearance even if he is doing it pro
bono. 73 FR at 76919.
(4) Procedures— 8 CFR §§292.3, 1003.104–06. Complaints are filed with and investigated by EOIR
disciplinary counsel when it involves practice before the Board and IJs. Any person may file a
complaint in writing or by using EOIR-44. Immigration Judges may initiate complaints. 73 FR at 76916.
Complaints or preliminary inquiries are confidential. 8 CFR §1003.108(a). DHS complaints are filed
with DHS pursuant to §292.3(d). Upon receipt of the complaint EOIR disciplinary counsel may close
the complaint, issue warning letters and admonitions and enter into agreements in lieu of discipline
prior to issuing a Notice of Intent to Discipline. 8 CFR §§1003.104(b), (c). EOIR disciplinary counsel
may also refer the matter for criminal investigation, §1003.104(d). If counsel determines that the
practitioner has engaged in professional misconduct she may initiate a Notice of Intent to Discipline. 8
CFR §1003.105. When it involves EOIR, the BIA makes the decision and EOIR disciplinary counsel
initiates the charges. Id. The attorney or representative shall have 30 days to answer in which he or
she must specifically request a hearing or the hearing officer will simply issue a decision. 8 CFR
§1003.105(c)(3). The Chief IJ shall designate an IJ to hold a hearing and render a decision. 8 CFR
§1003.106. The case will be heard by EOIR according to procedures in 8 CFR §§1003.106(a)–(c).
Matter of Singh, 26 I&N Dec. 623, 625 (2015) [upholding preclusion of testimony at disciplinary hearing
of a California Bar Certified Specialist in the area of legal malpractice under California law on the
grounds that her testimony regarding reciprocal discipline by the California Bar was speculative and
not relevant to EOIR proceedings]. The EOIR disciplinary counsel must prove the charge by clear and
convincing evidence. 8 CFR §1003.106(a)(1)(iv). Either party may appeal the decision to the BIA on an
EOIR-45 and the BIA must receive the appeal with the proper fee, as in any appeal, within 30 days of
the decision, if oral, or 30 days after mailing if mailed. 8 CFR §1003.106(c). Laches is not an
affirmative defense in disciplinary proceedings. Matter of Sparrow, 20 I&N Dec. 920 (BIA 1994). If a
party is disbarred, he may subsequently seek reinstatement. 8 CFR §1003.107.
(5) Immediate Suspension— 8 CFR §1003.103(a); 8 CFR §1003.106(a)(1). The EOIR disciplinary
counsel shall file and the BIA “shall forthwith enter an order immediately suspending” a practitioner
before the BIA, IJ and/or DHS if the practitioner has “been found guilty of, or pleaded guilty or nolo
contendere to, a serious crime or has been suspended or disbarred by, or resigned from the highest
court of any State … or any Federal court…” 8 CFR §1003.103(a)(1). The Board may set it aside in the
interest of justice. 8 CFR §1003.103(a)(2). EOIR counsel shall thereafter promptly initiate summary
disciplinary proceedings against the practitioner. A practitioner subject to summary disciplinary
proceedings may make a prima facie showing that there is a material issue of fact in dispute in which
Page 608 case the matter will be referred to the Chief Immigration Judge 8 CFR §1003.106(a)(1). A
practitioner who has been found guilty of a serious crime or has been disbarred from the highest court
of the state or any federal court must notify EOIR disciplinary counsel within 30 days even if she is
appealing the decision. 8 CFR §1003.103(c). See e.g., Matter of Rosenberg, 24 I&N Dec. 744 (BIA
2009) [an attorney who was suspended from practice before the 9th Cir. but remained in good standing
with the California Bar is subject to immediate suspension]. The Board “generally subscribes to the
concept of identical or comparable reciprocal discipline” in immediate suspension cases, 73 FR at
76921 but has imposed harsher penalties where other factors were involved. See e.g., Matter of
Salomon, 25 I&N Dec. 559 (BIA 2011) [imposed 6-month suspension where NY imposed only a 3-
month suspension under the totality of the circumstances despite respondent’s medical problems and
pleas to support his family]; Matter of Jean-Joseph, 24 I&N Dec. 294 (BIA 2007) [suspended
practitioner for double the length of state bar suspension because practitioner violated the BIA’s
immediate suspension order).
(6) Sanctions for Violating Protective Order—DOJ has established procedures before the IJ for the
admission of documents/information under a protective order which, if disclosed would “harm the
national security … or law enforcement interests of the United States.” 8 CFR §1003.46; Matter of R-S-
H-, et al., 23 I&N Dec. 629 (BIA 2003). National security is defined under INA §219(c)(2), 8 USC
§1189(c)(2) to include “the national defense, foreign relations, or economic interests of the United
States.” Failure to comply with a protective order issued under this section may result in suspension of
the attorney or accredited representative from practice before EOIR or DHS. 8 CFR §1003.46(i).
(7) Reinstatement—After expiration of the suspension, a lawyer may apply for reinstatement if he or she
meets the definition of a lawyer or representative and can show by “clear, unequivocal, and convincing
evidence that he or she possesses the moral and professional qualifications…” 8 CFR §1003.107(a)
(1). Matter of Krivonos, 24 I&N Dec. 292 (BIA 2007) [declining to reinstate a lawyer “at this time” who
had been convicted of immigration fraud despite reinstatement to the NY bar]. A lawyer who continues
to practice after suspension may face additional sanctions and will not be reinstated after his first
suspension is completed. Matter of Jean-Joseph, 24 I&N Dec. 294 (BIA 2007) [reinstatement denied to
lawyer who continued to appear in immigration court after suspension; BIA doubled suspension to 120
days]. The BIA will not reinstate a lawyer under an order of suspension even if he still retains his state
bar license. Matter of Rosenberg, 24 I&N Dec. 744, 746 (BIA 2009) [lawyer suspended by 9th Cir. for
one year for mishandling petitions for review will not be reinstated by the BIA solely because he is a
member in good standing by the CA bar].
(8) Board Has Sanctioned Attorneys—Matter of Kronegold, 25 I&N Dec. 157 (BIA 2010) [notwithstanding
only a one-year reciprocal suspension from New Jersey, lawyer suspended from practice before the
Board for 7 years where he was disbarred from NY which does not permit reinstatement for seven
years]; Matter of Shah, 24 I&N Dec. 282 (BIA 2007) [attorney who knowingly made false statement on
LCA and then used LCA to apply for H-1B is subject to discipline for violating 8 CFR §§1003.102(c),
1292.3(b)]; Matter of Gadda, 23 I&N Dec. 645 (BIA 2003) [disbarment]; Matter of Sparrow, 20 I&N
Dec. 920 (BIA 1994); Matter of De Anda, 17 I&N Dec. 54 (BIA 1979); Matter of Solomon, 16 I&N Dec.
388 (AG 1977); Matter of Koden, 15 I&N Dec. 739 (BIA 1976), aff’d, Koden v. INS, 564 F.2d 228 (7th
Cir. 1977); Matter of Bogart, 15 I&N Dec. 552 (BIA 1976). See also Ramos v. DOJ, 538 F.Supp.2d 4
(D.D.C. 2008) [upholding decision to disbar petitioner from EOIR/DHS despite his argument that he
never appeared before EOIR on grounds that he submitted G-28s to DHS and is subject to full
sanctions under 8 CFR §1292.3(a)(2)].
(9) DHS Rules of Conduct
8 CFR §§1.1, 292.1-.6, 75 FR 5225–30 (Feb. 2, 2010). AFM 12.5
(a) Explicitly prohibit lawyers who are licensed in foreign countries from practicing before DHS in the
United States. 8 CFR §292.1(a)(2), (a)(6); 75 FR at 5226. And bans notaries, immigration
consultants and immigration service providers from representing people before DHS. Q&A;: DHS
Implements Regulation to Enhance Attorney Discipline Program, AILA Doc. No. 10020322. Page
609
(b) Conforms disciplinary rules and charges to DOJ procedures except DHS disciplinary counsel
initiates the investigation and presents the charge to the BIA. 8 CFR §292.3(d).
(c) Provides for reciprocal action by DHS and EOIR in summary disciplinary cases 8 CFR
§§1003.103(a)(2), (3), and other cases. 8 CFR §1003.105(b).
(10) Courts Referring Cases to the Bar and Other Federal Court Sanctions—In Stroe v. INS, 256 F.3d
498, 504 (7th Cir. 2001), the Court denied respondent’s ineffective assistance of counsel claim for
failure to follow Lozada but referred the lawyer’s malpractice to the Illinois Bar where the case before
the BIA was dismissed for the failure of the first counsel to timely file a brief. In Bathazi v. DHS, 667
F.Supp.2d 1375 (S.D. Fla. 2009) the district court found that there was no jurisdiction to review denials
of I-140 petitions, observed that the lawyer had filed a number of such petitions, and issued an Order
to Show Cause why counsel should not be subject to Rule 11 for filing the lawsuit].
(11) Circuit Court Sanctions in the Course of Petitions for Review—The Second Circuit has assessed
costs and damages against appellant and counsel for frivolous appeals. Muigai v. INS, 682 F.2d 334
(2d Cir. 1982); Acevedo v. INS, 538 F.2d 918 (2d Cir. 1976). See also Salgado-Toribio v. Holder, 713
F.3d 1267 (10th Cir. 2013) [denying in forma pauperis status and threatening future sanctions for
meritless appeal]; Pillay v. INS, 45 F.3d 14 (2d Cir. 1995) [dismissing §212(c) appeal as frivolous];
Osuch v. INS, 970 F.2d 394 (7th Cir. 1992); Calderon-Ontiveros v. INS, 809 F.2d 1050 (5th Cir. 1986)
[double costs taxed against attorney who raised due process issue because of INS actions]. Circuit
courts may also sanction lawyers for what they perceive as procedural errors in preparing the record
on appeal. Morgan v. Mukasey, 529 F.3d 1202, 1211 (9th Cir. 2008) [government disabled from
proceeding further in case until it finds the record on appeal or secures a copy from the court after
making an effort to explain the loss]; McBrearty v. Perryman,212 F.3d 985, 986 (7th Cir. 2000);
Guentchev v. INS, 77 F.3d 1036 (7th Cir. 1996). The Seventh Circuit has warned counsel not to file
petitions for review in “thin” asylum cases or face sanctions. Gramatikov v. INS, 128 F.3d 619, 620 (7th
Cir. 1997) and lawyers have been sanctioned for incompetent briefing. He v. Holder, 781 F.3d 880 (7th
Cir. 2015) [court reported lawyer to the Bar for filing unsubstantiated motions to reconsider and arguing
on appeal the original removal orders (which were not appealed and for which the court had no
jurisdiction) instead of error in the denial to reconsider]; Wroblewska v. Holder, 656 F.3d 473, 477-78
(7th Cir. 2011) [due to counsel’s incompetent briefing resulting in the court referring him to the bar,
court could not tell from the argument whether there was a good due process challenge to Operation
Durango]. Lawyers may also be sanctioned under 28 USC §1927 for baseless district court litigation.
Bowler v. INS, 901 F.Supp. 597 (S.D.N.Y. 1995) or for filing motions untimely and in lieu of timely filed
briefs. Ramos v. Ashcroft, 371 F.3d 948, 949–50 (7th Cir. 2004)[chastising government for failing to file
motion to transfer before respondent was required to file his brief]. A lawyer for a habeas petitioner
was sanctioned for failing to disclose that s/he had also filed and pursued a petition for review
regarding the petitioner before the circuit court. Ndreko v. Ridge, 351 F.Supp.2d 904, 909–11 (D. Minn.
2004) [where lawyer filed emergency habeas for client who was removed from the U.S. to have him
returned, but did not disclose that a petition for review was pending in the case and that the circuit
court had denied a stay, the district court imposed sanctions against counsel for failure to disclose the
information]. The courts have also referred matters to state bar committees where the record
demonstrates arguable incompetence of counsel. Juarez v. Holder, 599 F.3d 560, 566 n.5 (7th Cir.
2010) [referring lawyer to state bar where case dismissed as abandoned due to late file applications
and failure to obtain biometrics in asylum application].
(12) Criminal Charges Against Counsel—Under 18 USC §1546, a lawyer who submits an application,
affidavit or other document which “fails to contain any reasonable basis in law or fact” is subject to 10
years in jail. Congress also enacted INA §243(a)(1)(C), 8 USC §1253(a)(1)(C), which provides that an
alien who “conspired, or takes any other action, designed to prevent or hamper … the alien’s
departure” within 90 days of a removal order or from the date of final court order or from the date
required to appear for a bag-and-baggage letter, is subject to a 4-year sentence and fine. However, it
is not a violation of INA §243(a)(1), 8 USC §1253(a)(1) Page 610 to take proper steps to secure
cancellation or exemption from the order of removal or the noncitizen’s release from custody. INA
§243(a)(2), 8 USC §1253(a)(2). Whether a lawyer could be charged on a conspiracy or abetting theory
under this statute is an open question in light of the language of the statute which seeks to convict only
“an alien.”
(13) Legal Malpractice Lawsuits—Lawyers, like any professionals and fiduciaries are subject to legal
malpractice claims in state court. At least in Iowa those malpractice claims may also include damages
for “emotional distress” even if the lawyer’s actions were not intentional and for punitive damages
where his conduct was reckless Miranda v. Said, 806 N.W.2d 8 (Iowa 2013) [lawyer told client they
should go abroad and obtain I-601 waiver for 10-year bar when they had no qualifying relative]. See
also DePape v. Trinity Health Sys., 242 F.Supp.2d 585, 592 (N.D. Iowa 2003) [lawyer sent engagement
letter to medical center stating he was representing both center and Dr. DePape but never sent copy of
retention letter to DePape, never followed up with him the requirements of a TN and H-1B visa, and
never called to ensure he understood visa requirements. $278,736.20 court award].
7.m. Right to Present Evidence and Cross-Examine Witnesses
INA §§240(b)(1) & (b)(4)(B), 8 USC §§1229a(b)(1) & 1229a(b)(4)(B), 8 CFR §§1240.1(c), 1240.10(a)(4)
(1) Generally—Uwineza v. Holder, 781 F.3d 797, 799 (6th Cir. 2015) [in the absence of evidence of
falsity, the IJ/BIA cannot refuse to credit evidence and deny motion to reopen based solely upon the
grounds that it is unsworn or written in support of petitioner’s case in absence]; Oshodi v. Holder, 729
F.3d 883 (9th Cir. 2013) (en banc) [an applicant for asylum/withholding/CAT has a due process right to
present testimony in support of his claim and IJ violated right when he refused to permit the applicant
to put forward his full claim on direct testimony on the grounds that information was already covered in
the asylum application]. See also Indradjaja v. Holder, 737 F.3d 212 (2d Cir. 2013) [BIA reversed on
denial of motion to reopen because it failed to consider numerous reports and documents without an
accompanying affidavit and because it failed to consider expert’s detailed affidavit with citation sources
because he did not attach the primary sources themselves]; Malave v. Holder, 610 F.3d 483 (7th Cir.
2010) [respondent denied right of cross-examination when IJ refused to issue subpoena to husband
who claimed in affidavit that marriage was fraudulent]; Rendon v. Holder, 588 F.3d 669 (9th Cir. 2009)
[IJ violated due process in a cancellation proceeding when she unreasonably limited respondent’s
testimony to preclude her from testifying about any topic mentioned in the psychological evaluation of
her USC son]; Chen v. Holder, 578 F.3d 515 (7th Cir. 2009) [Chinese asylum applicant denied
opportunity to present evidence of his opposition to wife’s forced abortion]; Morgan v. Mukasey, 529
F.3d 1202, 1210–11 (9th Cir. 2008) [due process violation to deny 2 percipient witnesses the right to
testify because they were not on witness list once their mother’s credibility was put in doubt and they
could corroborate her testimony]; Tadesse v. Gonzales, 492 F.3d 905, 909–11 (7th Cir. 2007)
[applicant’s rights under INA §240(b)(4)(B) violated after IJ refused to consider expert affidavit or
testimony to rebut government’s document expert and discounted affidavit of torture counselor after
refusing to permit his testimony]; Pronsivakulchai v. Gonzales, 461 F.3d 903 (7th Cir. 2006) [reversing
IJ finding that there was reason to believe respondent committed a drug trafficking crime in Thailand
when she was deprived of the right to present rebuttal evidence]; Boyanivskyy v. Gonzales, 450 F.3d
286 (7th Cir. 2006) [where IJ continued a hearing to a date when he knew respondent’s 3 witnesses
could not appear and on that date denied a further continuance and concluded the hearing,
respondent denied right to present evidence]; Cham v. U.S. Att’y Gen., 445 F.3d 683 (3d Cir. 2006)
[IJ’s conduct violated due process and deprived asylum applicant of a fair hearing where IJ assumed
application was invalid, nitpicked the application and testimony for inconsistencies and contradictions,
prevented applicant from presenting evidence/witnesses, and engaged in abusive conduct including
preventing him from presenting his testimony by continually interrupting him]; Sosnovskaia v.
Gonzales, 421 F.3d 589, 592–94 (7th Cir. 2005) [reversing IJ denial of asylum where s/he ignored the
applicant’s evidence and failed to give her a final hearing finding that “the procedure that the IJ
employed … is an affront to [the applicant’s] right to be heard”]; Zolotukhin v. Gonzales, 417 F.3d 1073
(9th Cir. 2005) [refusing to hear corroborative testimony from family members, expert testimony, and
cutting short respondent’s testimony deprived him Page 611 of due process and the right to present
evidence]; Vasha v. Gonzales, 410 F.3d 863, 872–75 (6th Cir. 2005) [although upholding adverse-
credibility determination, the IJ’s reliance on discussion with law clerk and other information of a
witness after evidence was closed was a violation of due process]; Hernandez-Guadarrama v.
Ashcroft, 394 F.3d 674, 681–83 (9th Cir. 2005) [fundamentally unfair to permit use of hearsay
statement when the government deported the declarant thereby making her unavailable for cross-
examination]; Kaur v. Ashcroft, 388 F.3d 734 (9th Cir. 2004) [due process violated where IJ precluded
respondent’s son from testifying and at the same time faulted her for not offering corroborating
evidence]; Kerciku v. INS, 314 F.3d 913 (7th Cir. 2003) [due process violated where IJ foreclosed
virtually all testimony in asylum hearing after he determined from brief questioning that respondent was
not credible]; Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002) [IJ violated due process to insist that only
wife’s testimony was relevant to the bona fide nature of the marriage when husband could have
brought other documentary evidence]; Ladha v. INS, 215 F.3d 889, 903–05 (9th Cir. 2000) [IJ must
mark documents for identification even if he excludes them so there is a record on appeal]; Podio v.
INS, 153 F.3d 506 (7th Cir. 1998) [where IJ refused to allow asylum applicant to call his siblings as
witnesses and where he took over questioning preventing respondent’s counsel from presenting the
case due process was violated]; Hernandez-Garza v. INS, 882 F.2d 945, 947–48 (5th Cir. 1989)
[district court erred when it denied respondent’s counsel the right to cross-examine INS agents that
took alien witness’ affidavit on his fluency in Spanish]; Yi v. INS, 257 F.Supp.2d 791, 797–99 (E.D. Pa.
2003) [IJ’s refusal to allow evidence on alternate CAT claim theory that was stated in I-589 violated
due process].
(2) Right to Present Evidence to IJ on Review of Denied DHS Relief—In Matter of Herrera Del Orden, 25
I&N Dec. 589 (BIA 2011), the Board, in the context of the IJ’s “review” of the denial of a conditional
residence marriage waiver, held that the IJ erred in treating the review as if it was an appellate review
of USCIS’s denial limited to the record before USCIS. Instead, the BIA broadly held that in a review of
a denied petition or application, in the context of a review of a INA §216(c)(4) waiver, “the alien may
introduce, and the Immigration Judge should consider, material and relevant evidence without regard
to whether it was previously submitted or considered in proceedings before the DHS.” 25 I&N Dec. at
595. Matter of Figueroa, 25 I&N Dec. 596, 599 n.2 (BIA 2011) [followed Herrera Del Orden in the TPS
context]. The GC of EOIR, citing Del Orden has gone even further and opined that the “general rule” is
“that Immigration Judges have jurisdiction over all matters related to the proper adjudication of a
removal case unless such jurisdiction is expressly withheld by an Act of Congress or through a
regulation issued by the Attorney General.” Legal Opinion, King, GC, EOIR, EOIR’s Authority to
Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA
(Sept. 19, 2017) at 4, AILA Doc. No. 17100201
(3) Right Not to Be Deprived of Cross-Examination on Hearsay Documents Where Fundamentally Unfair
—The agency also cannot submit documents (e.g., affidavits) that deprive respondent of cross-
examination, notwithstanding admissibility of hearsay, where admission goes to the core of the
agency’s case. Patel v. Sessions, 868 F.3d 719 (8th Cir. 2017) [denial of I-751 reversed where
respondent’s right to cross-examination and a fundamentally fair hearing were violated because the IJ
admitted the ex-husband’s affidavit that he was paid for the marriage as well as a report concerning his
statement and refused to issue a subpoena for ex-husband’s appearance]; Karroumeh v. Lynch, 820
F.3d 890 (7th Cir. 2016) [in removal proceeding based upon a sham marriage the respondent was
deprived of due process when the government failed to make reasonable efforts to produce his former
wife but utilized her inconsistent and contradictory statement, relied upon by the IJ, without an
opportunity to cross-examine her]; Bondarenko v. Holder, 733 F.3d 899 (9th Cir. 2013) [IJ violated due
process by not granting continuance to allow respondent in asylum case to investigate government’s
adverse forensic report that it had for 8 months prior to confronting respondent]; Pouhova v. Holder,
726 F.3d 1007 (7th Cir. 2013) [reversed BIA removal order for smuggling as violative of 8 USC
§1229a(b)(4)(B) regarding a reasonable opportunity to cross-examine where sole evidence was
translated statement of nonpresent declarant and I213 written seven years after interview]; Hassan v.
Holder, 604 F.3d 915, 924-28 (6th Cir. 2010) [where a marriage certificate from MOI in Israel was “on
file” but not produced at Page 612 hearing regarding whether person had valid second preference
petition or was married at the time, the court reversed BIA under “clear and convincing evidence
standard” because no ability to cross-examine and certificate could have simply been evidence of the
first step toward marriage under Islamic]; Cinapian v. Holder, 567 F.3d 1067, 1074–77 (9th Cir. 2009)
[presentation of DHS forensic report finding documents fraudulent was a denial of due process where
they were not presented to respondent prior to hearing, although completed months before, and the IJ
declined to grant a continuance]; Banat v. Holder, 557 F.3d 886 (8th Cir. 2009) [due process violated
where IJ made adverse credibility finding based on DOS letter that determined that a PFLP document
was fraudulent despite lack of information about the people who conducted the investigation and their
expertise]; Anim v. Mukasey, 535 F.3d 243, 256–62 (4th Cir. 2008) [admission and reliance by IJ on
DOS letter on the authenticity of asylum applicant’s documents violated applicant’s due process rights
where it was triple hearsay, there was no evidence of how authenticity determination was made, and
the letter of the investigation did not comply with minimum DHS standards]; Alexandrov v. Gonzales,
442 F.3d 395, 404–07 (6th Cir. 2006) [IJ violated due process by relying on 2 highly unreliable hearsay
memoranda from the U.S. embassy in Sofia to prove respondent’s documents were fraudulent];
Ezeagwuna v. Ashcroft, 325 F.3d 396, 405–08 (3d Cir. 2003) [reliance on double and triple hearsay
letter of DOS Director of Office of Country Reports and Asylum Affairs to undermine credibility of
documentary evidence in asylum claim violated due process]; Olabanji v. INS, 973 F.2d 1232 (5th Cir.
1992); Cunanan v. INS, 856 F.2d 1373 (9th Cir. 1988); Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983).
Accord Zhen Nan Lin v. DOJ, 459 F.3d 255, 268–72 (2d Cir. 2006) [reversing BIA adverse credibility
finding based on a consular report that a document was a forgery where the hearsay report was
inherently unreliable because it relied on statements from Chinese officials and lacked other indicia of
reliability]; Corovic v. Mukasey, 519 F.3d 90, 95–96 (2d Cir. 2008) [U.S. government’s request to
Macedonian government to verify documents violated confidentiality provision of 8 CFR §208.6 (now
§1208.6) and the court, following Zhen Nan Lin prohibited use of the Macedonian report and remanded
the case]. In the view of one circuit, unreliable hearsay also applies to evidence presented by the
applicant. Djadjou v. Holder, 662 F.3d 265, 276-79 (4th Cir. 2011) [Upheld IJ/BIA’s decision not to credit
testimony and affidavit that contained multiple hearsay]. Nevertheless, documents such as police
reports are admissible in discretionary relief cases, Matter of Grijalva, 19 I&N Dec. 713 (BIA 1988),
unless the reports involve matters that were not the subject of prosecution and were therefore not
probative. Sierra-Reyes v. INS, 585 F.2d 762, 764 n.3 (5th Cir. 1978).
But see Matter of C-C-I-, 26 I&N Dec. 375, 384 (BIA 2014) [consular report stating that applicant
submitted fraudulent death certificate in deferral of removal revocation hearing was admissible despite
multiple levels of hearsay because IJ relied on other evidence and respondent had notice and an
opportunity to rebut]; Matter of Lemhammad, 20 I&N Dec. 316 (BIA 1991); Vladimirov v. Lynch, 805
F.3d 955 (10th Cir. 2015) [due process was not violated where ICE officer’s statements about marriage
fraud were admitted without cross-examination and I-213 containing triple hearsay was admitted
without cross-examining the officer]; Davis v. Lynch, 802 F.3d 168, 177-80 (1st Cir. 2015) [it was not a
violation of due process for the IJ to admit unsworn and unauthenticated statements from the wife
stating the marriage was fraudulent]; Mathin v. Kerry, 782 F.3d 804 (7th Cir. 2015) [in declaration for
citizenship, DOS’s report, notwithstanding hearsay, was admissible under public records exception at
Fed.R. Evid. 803(8)]; Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1299-1302 (11th Cir. 2015)
[admission of hearsay documents supporting frivolous finding on asylum were not prejudicial]; Antia-
Perea v. Holder, 768 F.3d 647, 653-59 (7th Cir. 2014) [not denied due process where IJ refused
respondent right to cross-examine officer who drafted I-213]; Angov v. Holder, 788 F.3d 893, 896-900
(9th Cir. 2015) [where letter from DOS official summarized a fraud investigation by the Sophia
consulate discrediting parts of Roma applicant’s claim for asylum, who was an inadmissible alien, it
was not a violation of the INA or due process to admit the letter without cross-examination despite its
use as the basis for an adverse credibility finding on asylum, withholding and CAT]; Toribio-Chavez v.
Holder, 611 F.3d 57, 65-67 (1st Cir. 2010) [submission of letter by former wife without her testifying was
not fundamentally unfair under the circumstances; nor was cross-examining former husband Page 613
3 times at trial]; Drop v. Holder, 586 F.3d 587, 590–92 (8th Cir. 2009) [upheld denial of psychologist’s
testimony where respondent failed to list her on pretrial list and upheld disqualification of other expert];
Barradas v. Holder, 582 F.3d 754, 761–65 (7th Cir. 2009) [court used I-213 and I-831 along with
criminal complaint to establish a conviction under the “any other evidence” provision without granting
respondent-LPR the right to cross-examine author of I-213 or I-863 where there was no showing that
officer mischaracterized or misstated information on forms]; Zhou Zheng v. Holder, 570 F.3d 438, 442–
43 (1st Cir. 2009) [BIA reliance on DOS report that was not in evidence without taking administrative
notice of it was harmless error]; Alimi v. Gonzales, 489 F.3d 829 (7th Cir. 2007) [admission of
respondent’s statement taken by officer at airport without presenting officer for cross-examination did
not violate due process]; Doumbia v. Gonzales, 472 F.3d 957, 962–63 (7th Cir. 2007) [admission of
embassy report without cross-examination in asylum hearing on validity of summons in Côte d’Ivoire
court was not prejudicial or fundamentally unfair under 8 USC §1229a(b)(4)]; Rehman v. Gonzales,
441 F.3d 506 (7th Cir. 2006) [no prejudice where respondent failed to proffer evidence that he was
precluded from presenting when IJ limited examination to 3 hours]; Ocasio v. Ashcroft, 375 F.3d 105
(1st Cir. 2004) [upholding IJ admission of spouse’s affidavit regarding sham marriage]; Tamenut v.
Ashcroft, 361 F.3d 1060 (8th Cir. 2004) [where fax from U.S. consulate in Ethiopia showed applicant
was employed at consulate during times he claimed he was in jail, due process not violated because
he could have rebutted through his own testimony]; Nyama v. Ashcroft, 357 F.3d 812, 816–17 (8th Cir.
2004) [when asylum applications from other applicants with the same story and same alleged parent
as respondent were offered to impeach respondent and not for their truth, they were admissible and
did not violate respondent’s due process rights because he had ample time to rebut]; Bustos-Torres v.
INS, 898 F.2d 1053 (5th Cir. 1990) [where hearsay unimpeached it may be admissible]. The right to
present witnesses absent a detailed showing of necessity was not prejudiced by transfer of hearing to
Oakdale, Louisiana. Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1256 (4th Cir. 1995). The right to
present evidence and cross-examine witnesses is limited where national security information is
presented by the government in opposition to the respondent’s admission or request for discretionary
relief. INA §240(b)(4)(B). The right to present evidence is also limited by compliance to local rules of
court. Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005) [IJ did not err in refusing to admit
documents submitted one day late in asylum hearing]; Galicia v. Ashcroft, 396 F.3d 446, 448 (1st Cir.
2005) [IJ did not abuse discretion in refusing to admit documents submitted in violation of local rules of
court including timing of submission and failure to premark exhibits]; Counsel should not give up right
to present evidence. Where IJ off-the-record informed counsel that he need not put on certain
evidence because he was going to rule in his favor and the BIA reversed the IJ’s decision, counsel
was precluded from raising in federal court the inadequacy of the record because he never raised it
before the IJ. Baria v. Reno, 94 F.3d 1335, 1340 (9th Cir. 1996), aff’d on other grounds, 180 F.3d 1111
(9th Cir. 1999).
(4) No Violation of Right to Present Evidence or Due Process—Perez-Fuentes v. Lynch, 842 F.3d 506,
512 (7th Cir. 2016) [IJ possible failure to consider seven untranslated letters in cancellation decision is
not a violation of due process or otherwise where no showing of prejudice]; Davis v. Lynch, 802 F.3d
168, 177-80 (1st Cir. 2015) [it was not a violation of due process to deny respondent the use of his
passport to refresh his recollection]; Zeah v. Holder, 744 F.3d 577, 581-82 (8th Cir. 2014) [due process
was not violated when IJ refused to allow testimony that was cumulative]; Bouchikhi v. Holder, 676
F.3d 173, 180-81 (5th Cir. 2012) [IJ’s off-hand disqualification of expert without allowing him to explain
his expertise relevant to the case was not good practice but did not prejudice withholding applicant];
Surganova v. Holder, 612 F.3d 901, 904-07 (7th Cir. 2010) [no violation of right to present evidence
because there was no prejudice when court denied petitioner right to recall certain government
witnesses and obtain I-213]; Freeman v. Holder, 596 F.3d 952, 958 (8th Cir. 2010) [exclusion of ISAP
officer’s testimony regarding petitioner’s address in challenging in absentia order did not violate due
process because testimony was not probative]; NAM v. Holder, 587 F.3d 1052, 1057–58 (10th Cir.
2009) [upheld BIA’s reliance on Statement in Support of Warrantless Arrest in its particularly serious
crime analysis did not violate due process]; Barradas v. Holder, 582 F.3d 754, 761–65 (7th Cir. 2009)
[court used I-213, I-831 along with criminal complaint to establish a conviction under the “any other
evidence” provision without Page 614 granting respondent-LPR the right to cross-examine author of I-
213 or I-863 where there was no showing that officer mischaracterized or misstated information on
forms]; Zhou Zheng v. Holder, 570 F.3d 438, 442–43 (1st Cir. 2009) [BIA’s reliance on DOS report that
was not in evidence without taking administrative notice of it was harmless error]; Lybesha v. Holder,
569 F.3d 877, 882 (8th Cir. 2009) [admission of DHS forensic report after filing deadline and after
conclusion of merits hearing was not a violation of due process where petitioner was given an
opportunity to respond to the document and did not show prejudice]; Kueviakoe v. U.S. Att’y Gen., 567
F.3d 1301, 1306 n.3 (11th Cir. 2009) [not an abuse of discretion for IJ to refuse to admit untimely
exhibits offered the day of the hearing]; Ogbolumani v. Napolitano, 557 F.3d 729, 734 (7th Cir. 2009) [in
denial of I-130, USCIS could rely on officer’s summary of statements regarding the fraudulent nature of
the beneficiary’s first marriage]; Duad v. U.S., 556 F.3d 592, 596 (7th Cir. 2009) [no due process
violation where reliable hearsay admitted by IJ]; Ogayonne v. Mukasey, 530 F.3d 514, 520 (4th Cir.
2008) [IJ’s introduction of evidence in asylum case that the IJ retrieved from the Internet did not violate
statute or regulations where there was no objection, it involved commonly known facts and was
contained in other documents]; Mapouya v. Gonzales, 487 F.3d 396, 415–16 (6th Cir. 2007) [refusal to
allow respondent to call witnesses in a certain order did not violate due process because respondent
could not show that the outcome of the case would have been different]; Chakir v. Gonzales, 466 F.3d
563, 567–69 (7th Cir. 2006) [where IJ’s conduct was improper and respondent claimed he was
precluded from presenting evidence, no statutory violation where respondent made no offer of proof
and did not show prejudice]; Vonhm v. Gonzales, 454 F.3d 825, 829–30 (8th Cir. 2006) [where pro se
respondent was not advised of right to present evidence at final hearing but was told to bring affidavit
and did so, no due process violation]; Romanishyn v. U.S. Att’y Gen., 455 F.3d 175, 185–86 (3d Cir.
2006) [IJ’s refusal to allow respondent to call more than 2 witnesses was not a violation of due process
because submitting testimony by affidavit did not render the proceeding fundamentally unfair]; Roman
v. INS, 233 F.3d 1027, 1032–33 (7th Cir. 2000) [IJ’s brusque attitude and curtailing questioning but not
preventing it entirely did not violate due process]; Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir.
1994); Sehgal v. Johnson, 105 F.Supp.3d 860, 868-69 (N.D. Ill. 2015) aff’d sub nom Sehgal v. Lynch,
813 F.3d 1025 (7th Cir. 2016) [no due process violation where USCIS in its NOID did not provide a
copy of the x-wife’s letter stating marriage was fraudulent but recited the entire letter in the NOID].
(5) Immigration Court Practice Manual and Presentation of Evidence—EOIR has established a formal set
of procedures for the timing, presentation and acceptance of evidence by the IJ. See Immigration
Court Practice Manual (ICPM) (available from the EOIR Virtual Law Library,
http://www.justice.gov/eoir/vll/libindex.html). For example, counsel is encouraged to submit a “criminal
history chart” if respondent has more than one conviction [ICPM at 3.3(f), 4.16(b)(iii)], and witness lists
must now contain a summary, the estimated length, and the language of the testimony [ICPM at 3.3(g),
4.16(b)(ii)]. There are also formal rules for the manner in which evidence must be presented, including
cover sheets, binding, tabs, and font size [ICPM at 3.3(a)]. Failure to comply with pretrial procedure
can result in denial of witness’ testimony. Drop v. Holder, 586 F.3d 587, 590–92 (8th Cir. 2009) [upheld
denial of psychologist’s testimony where respondent failed to list her on pretrial list].
(6) Expert Testimony—As part of the right to present evidence a respondent may present expert
testimony. Cojocari v. Sessions, 863 F.3d 616, 628-30 (7th Cir. 2017) [reversed IJ/BIA on Moldovan
asylum claim where unrebutted expert testimony based in part on DOS Country Reports was rejected
by the IJ without any plausible reason for doing so]; Velasquez-Banegas v. Lynch, 846 F.3d 258, 262
(7th Cir. 2017) [where IJ accepted expert’s uncontradicted evidence that applicant would be unable to
hide his HIV status in Honduras and would therefore be perceived and persecuted as a homosexual,
the court remanded the case because the IJ discounted its significance] Indradjaja v. Holder, 737 F.3d
212, 219-20 (2d Cir. 2013) [BIA reversed on denial of motion to reopen because it failed to consider
expert’s detailed affidavit with citation sources because the expert did not attach the primary sources
themselves]; Tassi v. Holder, 660 F.3d 710, 720-22 (4th Cir. 2011) [IJ erred in not admitting
corroborative expert testimony on mistaken belief that hearsay was not admissible from experts]; Page
615 Tadesse v. Gonzales, 492 F.3d 905, 909–11 (7th Cir. 2007) [refusal to consider expert’s affidavit or
testimony to rebut government’s expert was a violation of rights under INA §240(b)(4)(B)]; Tun v.
Gonzales, 485 F.3d 1014 (8th Cir. 2007) [respondent’s due process rights were violated where 2
experts’ testimony was excluded]; Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538–40 (7th Cir. 2005)
[IJ violated due process when he precluded 2 experts from testifying regarding Guatemalan asylum
claim even though one expert submitted an affidavit]; Koval v. Gonzales, 418 F.3d 798, 806–09 & n.3
(7th Cir. 2005) [reversing IJ’s refusal to allow former KGB agent’s expert testimony on persecution of
Mormons in Ukraine in light of the IJ’s overreliance on DOS country report despite its questionable
admissibility and trustworthiness]; Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056–58 (9th Cir.
2005) [violation of due process not to permit expert testimony regarding domestic violence where IJ
was told the expert would orally cover matters not in his affidavit and where IJ’s claim of insufficient
time was belied by his previous decision to have a separate hearing for a government witness];
McDonald v. Gonzales, 400 F.3d 684, 687–88 (9th Cir. 2005)[criticizing IJ for failure to allow expert
testimony from former state prosecutor as to whether respondent would have been prosecuted for
unlawfully voting in Hawaiian election]. Expert opinions, in removal proceedings, may be based upon
hearsay evidence and the expert “need not have personal knowledge of the facts underlying those
opinions.” Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015) [relying on Matter of D-R-, 25
I&N Dec. 445, 459-60 (BIA 2011) and Fed. R. Evid. 702]. In general, expert testimony in federal
proceedings is governed by the Daubert and Kumho Tire Co. standards as expressed in two Supreme
Court decisions. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999). The Daubert standard, however, may be too strict for administrative
(as opposed to federal court) proceedings, but if it is applicable: “There is no ironclad requirement that
an academic, to be qualified as an expert witness, must publish academic books or articles in the
precise subject matter of her testimony.” Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004) [reversing
IJ where he struck expert affidavit on Bulgaria without voir dire of expert on the grounds that expert’s
major field was Russian banking even though she taught a course on Eastern Europe]; Matter of D-R-,
25 I&N Dec. 445, 459-60 (BIA 2011) [relying on Fed. R. Evid. 702 definition as broadly defining an
expert to include a person who is qualified “by knowledge, skill, experience, training, or education”].
But see Silais v. Sessions, 855 F.3d 736, 743-44 (7th Cir. 2017) [minimizing expert’s testimony
because it was on general conditions, expert did not have first-hand knowledge of applicant’s claim,
and did not address specifics of applicant’s claim]; Zeah v. Holder, 744 F.3d 577, 581-82 (8th Cir. 2014)
[without demonstrating prejudice, due process was not violated when IJ refused to allow expert
testimony that he viewed as irrelevant]; Fei Yan Zhu v. U.S. Att’y Gen., 744 F.3d 268, 276-77 (3d Cir.
2014) [upheld BIA decision to discount expert testimony regarding authenticity of Chinese government
documents where she failed to testify that she was familiar with official seals or serial numbers that
were used]; Pasha v. Gonzales, 433 F.3d 530, 535–46 (7th Cir. 2005) [reversing IJ where government
documentary expert was unqualified to provide an opinion on Albanian documents noting that “junk
science has no more place in administrative proceedings than in judicial ones”]. The unchallenged
testimony of an expert cannot be rejected outright. Cole v. Holder, 659 F.3d 762, 771-73 (9th Cir. 2011)
[vacated BIA decision where it mischaracterized the record in regard to one expert’s testimony and
ignored the other’s testimony]; Banks v. Gonzales, 453 F.3d 449, 453–54 (7th Cir. 2006) [IJ erred when
he summarized but ignored expert on Liberia who testified that applicant from Krahn tribe would be
persecuted and instead relied on his own views without any government expert; DOS reports are too
general and government needs expert witnesses]; Dia v. Ashcroft, 353 F.3d 228, 258–59 (3d Cir. 2003)
(en banc) [where handwriting expert testified that the signatures on passport and visa were not
respondent’s, IJ could not dismiss the testimony by opining that handwriting analysis is too
speculative].
However, there may be no per se right to oral testimony of an expert. Bouchikhi v. Holder, 676 F.3d
173, 180-81 (5th Cir. 2012) [IJ’s off-hand disqualification of expert without allowing him to explain his
expertise relevant to the case was not good practice but did not prejudice withholding applicant];
Jarbough v. U.S. Att’y Gen., 483 F.3d 184, 192 (3d Cir. 2007) [IJ’s refusal to grant continuance to allow
for expert testimony was not a violation of Page 616 due process where one expert’s article was
submitted and other expert’s affidavit was submitted]; Shmyhelskyy v. Gonzales, 477 F.3d 474, 482–83
(7th Cir. 2007) [due process not violated where IJ prohibited expert witness regarding abuse and
torture from testifying but accepted affidavit which was not challenged by DHS]; Djedovic v. Gonzales,
441 F.3d 547, 550–52 (7th Cir. 2006) [where respondent’s counsel sought expert’s telephonic
testimony 2 days before hearing, IJ did not violate the INA or due process by refusing telephonic
testimony but permitting written or live testimony]; Paripovic v. Gonzales, 418 F.3d 240, 246 n.5 (3d
Cir. 2005) [due process not violated where IJ refused to grant continuance to allow expert to testify
where respondent did not ask for continuance prior to hearing that was in its 8th year]; Hamid v.
Gonzales, 417 F.3d 642, 645–47 (7th Cir. 2005) [no specific right to present evidence through oral
testimony and IJ’s refusal to allow live telephonic expert testimony while not precluding an expert
affidavit is not a per se due process violation]. It is within the IJ’s discretion to reject expert testimony.
Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006) [upholding IJ’s determination that expert
psychologist lacked credibility when he was unaware of respondent’s conviction for distributing drugs
but testified he was incapable of functioning in a linear fashion]; Akinfolarin v. Gonzales, 423 F.3d 39,
43 (1st Cir. 2005) [no IJ error in refusing to admit psychiatric affidavit where doctor was not present for
hearing, where he had a one-time consultation with respondent, where the affidavit contained
information that contradicted respondent’s testimony and where the IJ stated she would not give it
much credence]. Also, failure to follow procedures or lack of qualifications may disqualify an expert
from testifying. Drop v. Holder, 586 F.3d 587, 590–92 (8th Cir. 2009) [upheld denial of psychologist’s
testimony where respondent failed to list expert on pretrial list and upheld denial of other expert for
lack of qualifications regarding FGM]. Also, the IJ/BIA may weigh the expert’s evidence and reject it, as
long as it considers the evidence. Hang Chen v. Holder, 675 F.3d 100, 107-09 (1st Cir. 2012) [BIA
weighed “high probative value” of DOS report against expert’s affidavit on China and was
“unpersuaded” that she was qualified as expert on 2007 DOS country profile].
Expert testimony also applies to applications submitted to USCIS generally. See Matter of Skirball
Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012) [where the credentials of an expert witness are not
challenged his “uncontroverted testimony” must be treated as “reliable, relevant, and probative as to
the specific facts in issue” and satisfying the evidentiary requirements].But the expert’s testimony may
be discounted. See e.g., Saga Overseas, LLC v. Johnson, 200 F.Supp.3d 1341, 1349 (S.D. Fla. 2016)
[court discounted expert’s testimony in I-140 denial because expert on whether position was
managerial was unfamiliar with criteria under the INA].
(7) Polygraph Testimony—Polygraph testimony has been admitted in various proceedings. Lenea v.
Lane, 882 F.2d 1171, 1174 (7th Cir. 1989) [finding polygraph testimony admissible in prison disciplinary
proceedings]; Matter of Mendez-Moralez, 21 I&N Dec. 296, 305 (BIA 1996) [upholding admission of
polygraph results when both parties stipulated to its admission]. But see Acosta v. Lynch, 819 F.3d
519, 525-26 (1st Cir. 2016) [favorable polygraph of respondent charged with EWI was not admitted
and court recognized that “[p]olygraph results have long been considered of dubious value”]; U.S. v.
Piccinonna, 885 F.2d 1529, 1535 (11th Cir. 1989) [although affirming decision not to admit polygraph
results, the court found that such evidence is not inadmissible per se and stated that “there is no
question that in recent years polygraph testing has gained increasingly widespread acceptance as a
useful and reliable scientific tool”]; U.S. v. Gilliard, 133 F.3d 809 (11th Cir. 1998) [applying Daubert
standard to determine admissibility of polygraph and finding under the facts it was not an abuse of
discretion to deny its admission]; El-Abaidy v. U.S. Att’y Gen., 622 F. App’x 816, 819 (11th Cir. 2015)
[upholding IJ’s finding that polygraph examination conducted by FBI Program Coordinator was
unreliable and refusal to consider results]; In re EAC 05 096 52098 (DHS),2008 WL 5745526 (AAO
Dec. 9, 2008), at *2 [“In this matter, the polygraph report has not been sufficiently explained, detailed,
and vetted to establish that the questions and the methodology used would result in an accurate
portrayal of the truth as it relates to the reasons for the petitioner’s entry into her marriage.…”]. A
polygraph examination may assist the IJ to determine whether a person has a subjective fear of
persecution, but could not be used to establish the objective basis for a well-founded fear. Goel v.
Gonzales, 490 F.3d 735 (9th Cir. 2007) Page 617 [motion to reopen to submit polygraph evidence
denied because evidence was not unavailable during hearing].
(8) Telephonic and Video Testimony of Expert and Other Witnesses—Witnesses may testify by video at
an individual hearing at the IJ’s discretion after written motion. Immigration Court Practice Manual
4.15(o)(ii). Where IJ denied expert the right to testify telephonically the court reversed finding the IJ’s
decision “one of the odder rulings in our experience.” Niam v. Ashcroft, 354 F.3d 652, 659 (7th Cir.
2004) [reversed IJ who agreed to allow telephonic testimony of expert from Chicago but not from
Prague where she was attending a conference]; Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir.
2005) [reversed IJ for refusing to hear expert’s telephonic testimony from Russia where prior motion
was filed but IJ did not rule until day of the hearing and then required expert to appear in person or
respondent to produce a phone card at her own expense]; Beltran-Tirado v. INS, 213 F.3d 1179, 1185–
86 (9th Cir. 2000) [telephonic testimony of key witness was “fair”]. However, there may be no per se
right to oral testimony of an expert. Djedovic v. Gonzales, 441 F.3d 547, 550–52 (7th Cir. 2006) [where
respondent’s counsel sought expert’s telephonic testimony 2 days before hearing, IJ did not violate the
INA or due process by refusing telephonic testimony but permitting written or live testimony]; Hamid v.
Gonzales, 417 F.3d 642, 645–47 (7th Cir. 2005) [no specific right to present evidence through oral
testimony and IJ’s refusal to allow telephonic expert testimony while not precluding an affidavit is not a
per se due process violation]. A claim that telephonic testimony by a third-party was contrary to 8 CFR
§1003.25 has been rejected on the ground that the regulations only bar respondent’s telephonic
testimony if s/he objects to process. Akinwande v. Ashcroft, 380 F.3d 517, 521–22 (1st Cir. 2004)
[upholding IJ’s decision to allow ex-wife to testify telephonically that respondent’s marriage to her was
a sham and rejecting claim that telephonic testimony of third party witnesses is barred by 8 CFR
§1003.25 if the respondent objects].
The IJ may take testimony by telephone or videoconference and such testimony does not per se
violate due process. Barrera-Quintero v. Holder, 699 F.3d 1239, 1247-49 (10th Cir. 2012) [rejected due
process challenge on grounds that judge could not determine demeanor of witness telephonically
because “we are persuaded that this removal proceeding is not the type of setting that required the
witness to be confronted in person”]; Vilchez v. Holder, 682 F.3d 1195, 1199-1200 (9th Cir. 2012)
[video-conference hearings may in certain circumstances violate due process but finding no violation in
this case]; Aslam v. Mukasey, 537 F.3d 110, 114–15 (2d Cir. 2008) [videoconferencing of witness
where respondent was given the opportunity to change venue and fully cross-examine did not violate
due process]. Similarly, IJ may decline to do so without running afoul of due process. Gutierrez v.
Holder, 662 F.3d 1083, 1090-91 (9th Cir. 2011) [refusal to allow 3 witnesses to testify telephonically
about good moral character in registry hearing where others testified to the same character evidence
and where request was untimely did not violate due process].
(9) Post-Traumatic Stress Disorder—Courts have recognized that Post-Traumatic Stress Disorder can
affect a person’s testimony and where the IJ/BIA failed to recognize its effect on person’s asylum
testimony, have reversed the agency. Fiadjoe v. U.S. Att’y Gen., 411 F.3d 135, 149–60 (3d Cir. 2005)
[reversing BIA denial of asylum to woman from Trokosi sect in Ghana who had been repeatedly
physically and sexually abused by her father].
(10) Failure to Call Witness—It was impermissible for IJ to draw negative credibility inference where
respondent failed to call available witness. Tabaku v. Gonzales, 425 F.3d 417, 421–22 (7th Cir. 2005)
[adverse-credibility determination reversed where inter alia IJ applied the missing witness rule to
witness who was sitting outside of courtroom].
7.n. Right to Opening Statement and Closing Argument—Denial of opportunity to present opening statement
and closing argument may constitute a due process violation. Gilaj v. Gonzales, 408 F.3d 275, 290 (6th
Cir. 2005) [recognizing right but finding no prejudice].
7.o. Right to Request Relief— 8 CFR §1240.11. Applicant for relief can make request at any time prior to a
decision by the IJ and it was error to deny an applicant, after the close of evidence but before a decision,
to petition for former INA §241(f)(2) relief as untimely. Zamora-Morel v. INS, 905 F.2d 833, 839 (5th Cir.
1990). See also Casares-Castellon v. Holder, 603 F.3d 1111 (9th Cir. 2010) [IJ/BIA may not deem timely
filed application abandoned under 8 CFR §1003.31(c) where Page 618 applicant failed to submit
documents supporting his request for relief within the time prescribed by the IJ]; Louis-Martin v. Ridge,
322 F.Supp.2d 556, 561–62 (M.D. Pa. 2004) [despite counsel’s failure to file I-589, CAT claim would not
be deemed abandoned]. But see Arellano-Hernandez v. Holder, 564 F.3d 906 (8th Cir. 2009) [VAWA
cancellation properly pretermitted where it was not announced until final hearing on non-VAWA
cancellation after all documentary deadlines had passed]. However, if a person illegally re-enters U.S.
after removal, she is not eligible for most forms of relief, except withholding, CAT, and possibly asylum if
DHS issues an order of “reinstatement of removal.” INA §241(a)(5), 8 USC §1231(a)(5). Alvarenga-
Villalobos v. Ashcroft, 271 F.3d 1169, 1172–73 (9th Cir. 2001) [rejecting claim that person subject to INA
§241(a)(5) should be allowed to reopen in light of Magana-Pizano as that decision occurred subsequent
to first deportation order]; Matter of W-C-B-, 24 I&N Dec. 118, 123 (BIA 2007) [remanding from BIA to IJ
inappropriate where 8 CFR §1241.8(e) establishes administrative procedure through DHS to apply for
withholding]. But see Leitao v. Reno, 311 F.3d 453 (1st Cir. 2002) [where denial of habeas was appealed
and he was deported during pendency of appeal, claim is not moot because he may be permanently
barred].
7.p. Security Checks
(1) In General—All persons seeking asylum and various forms of relief from removal, except VD, must
comply with security clearance procedures. 8 CFR §1003.47. The IJ’s procedure is set forth at Memo
[Interim OPPM 05-03], Creppy, Chief IJ, EOIR (Mar. 28, 2005), AILA Doc. No. 05041565 [permitting
the IJ to dictate a draft approval outside the presence of the parties if he is awaiting security checks
but allowing him to make a final decision if he is denying the case]. There is also a procedure to
refresh fingerprint checks arising out of an agreement between ICE ERO and USCIS where prints are
more than 15 months old and relief has not yet been granted. ICE, FAQs, Agreement Between USCIS
and ICE: Fingerprint Check Refresh Requests (May 2016), 21 Bender’s Immigr. Bull. 709, 710-12
(Jun. 15, 2016) [ICE will attempt to update the fingerprint check from its own database. If unable to do
so, USCIS should provide updated fingerprint data within 48 to 72 hours from ICE’s request. If USCIS
cannot update the fingerprint check from its databases, a notice will be sent to respondent to appear
for fingerprinting]. Failure to file necessary documentation and comply with the requirements to provide
biometrics and biographical information within the time allowed by the IJ’s order constitutes
“abandonment of the application and the immigration judge may enter an appropriate order dismissing
the application unless the applicant demonstrates that such failure was the result of good cause.” 8
CFR §1003.47(c) & (d); 8 CFR §103.2(b)(13)(ii); USCIS, Immigration Benefits in EOIR Removal
Proceedings (Dec. 2011), AILA Doc. No. 11122837 [reminding applicants of the need to follow
instructions including biometrics as both a precondition to seeking relief before the IJ and insuring
relief after a preliminary grant by the IJ]; Ramirez-Coria v. Holder, 761 F.3d 1158 (10th Cir. 2014)
[upheld dismissal of cancellation as abandoned where applicant did not obtain biometrics despite claim
he was turned away during a 2 ½ year period because he did not have a Mexican ID]; Gomez-Medina
v. Holder, 687 F.3d 33 (1st Cir. 2012) [BIA did not abuse its discretion in affirming IJ’s denial of a
continuance and dismissal of applicant’s asylum, withholding and CAT claims as abandoned for failure
to obtain biometrics and comply with other court orders]; Umezurike v. Holder, 610 F.3d 997, 1001-04
(7th Cir. 2010) [citing regulation and 8 CFR §1208.10 and finding IJ did not abuse her discretion in
denying continuance and determining asylum application abandoned for failure to provide biometrics in
sufficient time before hearing]; Ogunfuye v. Holder, 610 F.3d 303, 305-07 (5th Cir. 2010) [receipt of
biometric notice by counsel was sufficient and court upheld IJ’s dismissal for failure to timely obtain
biometrics]. However, it is improper to deem an application abandoned for failure to comply with
biometrics unless the IJ on the record has: (1) ensured that DHS has advised the applicant of the need
to provide biometrics and has furnished the appropriate instructions; (2) informed the applicant of the
deadline for complying; and (3) informed the applicant of the consequences of noncompliance
including the application being abandoned and dismissed unless the failure was for good cause.
Matter of D-M-C-P-, 26 I&N Dec. 644, 647-50 (BIA 2015). See also Karapetyan v. Mukasey, 543 F.3d
1118, 1129–33 (9th Cir. 2008) [IJ erred in denying continuance to applicant who sought to correct
failure to obtain fingerprints thus pretermitting his asylum application]. An IJ may not grant an
application for relief until DHS completes Page 619 the appropriate investigation and reports the
results to the IJ. 8 CFR §1003.47(g). However, failure to act within a reasonable time may subject DHS
to injunctive action. Al Jabari v. Chertoff, 536 F.Supp.2d 1029 (D. Minn. 2008) [in action to compel DHS
to complete security check involving the grant by an IJ of a marriage hardship waiver to lift conditional
residence, the court determined that although mandamus was unavailable because the statute does
not impose a nondiscretionary duty, the APA permitted injunctive relief]. In addition, if the FBI has not
completed its name check within 180 days, the IJ may consider proceeding in light of the new USCIS
memo that states if the FBI does not complete the name check within 180 days and the application is
otherwise approvable “the adjudicator shall approve the I-485, I-601 (waiver), I-687 (temporary
resident under 245A) or I-698 (temporary to permanent resident under 245A) and proceed with card
issuance.” Memo, Aytes, Assoc. Dir. Domestic Operations, USCIS, HQ70/23 & 70/28.1 (Feb. 4, 2008),
AILA Doc. No. 08020760. See also Santillan v. Gonzales, 388 F.Supp.2d 1065, 1079–82 (N.D. Cal.
2005)[government’s refusal to provide temporary status documentation to LPRs in proceedings and
permanent status documentation within a reasonable time to persons granted relief by IJ was arbitrary
and was not permitted by 8 USC §1304(d)].
The IJ has discretion to determine whether to conduct an additional hearing to consider new evidence
if the security check affects respondent’s eligibility, but when there is no new information the IJ may not
use the security check procedure as an opportunity to relitigate any issues. The IJ should simply enter
an order granting the relief. Matter of Alcantara-Perez, 23 I&N Dec. 882 (BIA 2006). Although asylum
may not be granted until the applicant’s identity has been checked against all appropriate records or
databases maintained by the AG and the Secy. of State, including AVLOS, to determine inadmissibility,
deportability or ineligibility, INA §208(d)(5)(A)(i), 8 USC §1158(d)(5)(A)(i), this provision may not be
used to alter the burden of proof and deny asylum by presuming the person is of unknown identity and
requiring them to prove their identity. Kalouma v. Gonzales, 512 F.3d 1073 (9th Cir. 2008) [reversing IJ
who denied asylum, requiring the “unknown” person before him proved his identity]. But see Khan v.
Mukasey, 541 F.3d 55 (8th Cir. 2008) [failure of Pakistani to produce asylum application from Canada
regarding his claimed conversion from Sunni to Shiite, and failure to produce original or authenticated
copy of his passport or other identity document was sufficient to deny claim]. However, if the security
check reveals new information or a new circumstance develops after a case was remanded from the
BIA, such as a marriage to a USC, the IJ may consider the new evidence in a motion to reopen even if
she is barred from reconsidering the BIA’s decision. Matter of M-D-, 24 I&N Dec. 138 (BIA 2007)
[where record was remanded to IJ for security checks pursuant to 8 CFR §1003.47(h) after BIA
granted withholding and respondent had married a USC, IJ is authorized to consider adjustment]. See
also Matter of A-B-, 27 I&N Dec. 247, 248 (AG 2018) [“If the Immigration Judge thought intervening
changes in the law directed a different outcome, he may have had the authority to hold a hearing,
consider those legal issues, and make a decision on those issues” citing 8 CFR §1003.47(h)]. In the
event the person is granted relief but the name check subsequently reveals actionable information,
“DHS may detain and initiate removal proceedings against the permanent resident.” Memo, Aytes,
Assoc. Dir. Domestic Operations, USCIS, HQ70/23 & 70/28.1 (Feb. 4, 2008), AILA Doc. No.
08020760.
(2) Procedure for Security Checks for Persons Filing for Asylum or Other Relief—An applicant seeking
relief will be required to forward a photocopy of the application to the TSC or the NSC. Applications
regarding asylum, withholding and CAT are filed with the NSC. Applications for other forms of relief (I-
485, EOIR-40, 42A, 42B, and I-881) including former INA §212(c) relief must be filed with TSC. Asylum
and other applications must be submitted without attached supporting documentation, with the
appropriate fee and the biometric fee, an EOIR-28, and a copy of the instructions. The service center
inputs the data and gives notice to the applicant to appear at an ASC for biometrics. Subsequent to a
grant of relief, respondent will be instructed to make an InfoPass appointment at the local USCIS office
to obtain ID documentation and employment authorization. Memo, Yates, Assoc. Dir. Operations,
USCIS, “Executive Office for Immigration Review (EOIR) Processing,” (Mar. 31, 2005), AILA Doc. No.
05051164. Accommodations for religious purposes in the taking of Page 620 both the photograph and
fingerprints can be made by USCIS officers. Policy Memo, USCIS, PM-602-0072, Policy for
Accommodating Religious Beliefs During Photograph and Fingerprint Capture, (July 23, 2012), AILA
Doc. No. 12081344.
7.q. Motions to Suppress Procedures
(1) If “fundamentally unfair” or if “unreliable” may still suppress after Lopez-Mendoza. See in this part
Section F (p.454), supra. Motion must be specific, detailed and contain affidavits about the events.
Affidavits alone however may be insufficient where it does not demonstrate egregious violation.
Maldonado v. Holder, 763 F.3d 155, 160-63 (2d Cir. 2014) [where affidavit on its face did not
demonstrate an egregious violation of constitutional rights, the IJ was not required to have an
evidentiary hearing].
(2) No right to separate suppression hearing. Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).
(3) A motion to suppress, however, may not affect a removal proceeding where the respondent admits
the NTA allegations before the IJ. Miguel v. INS, 359 F.3d 408 (6th Cir. 2004) [even if there was a basis
for the motion to suppress, respondent nullified the motion by admitting the elements of the removal
charge before the IJ]. Or where there is independent evidence of alienage. Hoonsilapa v. INS, 575
F.2d 735, 738 modified, 586 F.2d 755 (9th Cir. 1978) [submission of visa petition constituted
independent evidence of alienage that was not a product of unlawful arrest].
(4) For legal basis for Motions to Suppress, see in this part Section F (p.454), supra.
(5) For excellent practice memos on Motions to Suppress, see AIC, Motions to Suppress in Removal
Proceedings: A General Overview (Aug. 1, 2017); AIC, Motions to Suppress in Removal Proceedings:
Fighting Back Against Unlawful Conduct by U.S. Customs and Border Protection (Aug. 1, 2017); AIC,
Motions to Suppress in Removal Proceedings: Cracking Down on Fourth Amendment Violations by
State and Local law Enforcement Officers (Aug. 1, 2017).
7.r. Privilege Against Self-Incrimination
(1) Kastigar v. U.S., 406 U.S. 441, 444 (1972) [may invoke privilege “in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory”]; Bigby v. INS, 21 F.3d 1059 (11th Cir. 1994);
Tashnizi v. INS, 585 F.2d 781 (5th Cir. 1978); Matter of King & Yang, 16 I&N Dec. 502 (BIA 1978); U.S.
v. Alderete-Deras, 743 F.2d 645 (9th Cir. 1984). Can limit the areas in which person wishes to answer
questions. U.S. v. Soliz, 129 F.3d 499 (9th Cir. 1997) [impermissible for border patrol to ask about
smuggling where person had to answer only as to citizenship]. The right against self-incrimination,
however, does not extend to fear of foreign prosecution. U.S. v. Balsys, 524 U.S. 666 (1998). Nor does
it extend to a refusal to provide identity. Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004).
Nor to precustodial refusal to answer questions when the party has not invoked his right to remain
silent. Salinas v. Texas, 570 U.S. 178 (2013) [plurality opinion]. Court may draw negative inferences
from refusal to testify. U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923); Gutierrez v. Holder,
662 F.3d 1083, 1091 (9th Cir. 2011); U.S. v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997);
Barradas v. Holder, 582 F.3d 754, 761–66 (7th Cir. 2009) [IJ had right to state he would draw adverse
inference from respondent-LPR’s silence where DHS’s introduction of I-213, I-831 and criminal
complaint were sufficient to establish prima facie case]; but see Hernandez-Guadarrama v. Ashcroft,
394 F.3d 674, 680 n.6 (9th Cir. 2005) [where there were differences between the criminal and
immigration anti-smuggling statutes, respondent’s refusal to testify does not necessarily warrant an
adverse inference regarding deportability; DHS failed to prove alien smuggling under Woodby
standard where limited evidence was not subject to cross-examination and was insufficiently reliable].
However, where INS offers no evidence except respondent’s silence, it is insufficient to meet clear,
unequivocal and convincing standard and burden does not shift to respondent under INA §291. Matter
of Guevara, 20 I&N Dec. 238 (BIA 1991). Similarly, where DHS offers only impeachment evidence
coupled with respondent’s invocation of the Fifth Amendment, it fails to establish sufficient Page 621
evidence for removal. Urooj v. Holder, 734 F.3d 1075 (9th Cir. 2013) [where respondent invoked the
5th amendment and the court admitted DHS’s Record of Sworn Statement as impeachment rather
than substantive evidence, it failed to meet its burden to prove removability]. Attorney may invoke
privilege. Bigby, supra [privilege is generally personal and must be invoked by individual, but lawyer
may invoke it where there is no objection and judge assumed it was invoked]; Matter of Castro-
Olmedo, A43-570-146 (BIA Oct. 22, 1996) (unpublished) [when respondent asserts Fifth Amendment
as to identity, IJ cannot proceed in absentia]. But see Garcia-Quintero v. Gonzales, 455 F.3d 1006,
1019–20 (9th Cir. 2006) [where IJ forbade lawyer from invoking the Fifth Amendment for his client and
required respondent to assert it as to each question, the IJ’s finding of removal based on respondent’s
admissions was upheld because attorney could have objected or asked to consult with his client].
Refusal to submit to handwriting exemplar may also be a basis to draw a negative inference.
Dwumaah v. U.S. Att’y Gen., 609 F.3d 586 (3d Cir. 2010) [false claim to U.S. citizenship may be
proved through circumstantial evidence and IJ could draw negative inference from petitioner’s failure to
submit to handwriting exemplar to compare to student loan form].
(2) Fifth Amendment can be asserted to avoid, inter alia,the following crimes: INA §252(c) [alien
crewman overstay]; INA §266(a) [if overstay after 30 days and no fingerprints/registration]; INA
§264(e) [18 or over not carrying INS documentation]; INA §266(b) [failing to comply with change of
address w/in 10 days under INA §265(a)]; INA §274C(e) [failure to disclose role as document
preparer]; INA §275 [EWI]; INA §276 [previously deported and re-entered]; U.S. v. Olivares-Rangel,
458 F.3d 1104 (10th Cir. 2006); U.S. v. Garcia-Beltran, 389 F.3d 864 , 865-69 (9th Cir. 2004); 18 USC
§1546 [false statements/fraudulent documents]; 18 USC §1028(b) [false documents]; 18 USC §1001
[false statement]; 18 USC §§911, 1015 [false claim to USC].
7.s. Miranda Inapplicable—U.S. v. Solano-Godines, 120 F.3d 957 (9th Cir. 1997) [Miranda warnings not
required during deportation hearing]; U.S. v. Khan, 324 F.Supp.2d 1177, 1190–91 (D. Colo. 2004) [same];
U.S. v. Kadem, 317 F.Supp.2d 239 (W.D.N.Y. 2004) [same]; U.S. v. Montoya-Robles, 935 F.Supp. 1196
(D. Utah 1996) [same]; Bustos-Torres v. INS, 898 F.2d 1053, 1057 (5th Cir. 1990); Trias-Hernandez v.
INS, 528 F.2d 366, 368 (9th Cir. 1975); Alderete-Deras, 743 F.2d 645 (9th Cir. 1984); Chavez-Raya v. INS,
519 F.2d 397, 402 (7th Cir. 1975). But DHS must follow 8 CFR §287.3. See also U.S. v. Kiam, 432 F.3d
524, 528–31 (3d Cir. 2005) [Miranda warnings not necessary when officer is determining admissibility at
the border]; U.S. v. Lopez-Chamu, 373 F.Supp.2d 1014 (C.D. Cal. 2005) [where ICE officers interviewed
defendant in state jail knowing he was previously deported, motion to suppress nationality and citizenship
granted]; U.S. v. Kadem supra [although Miranda warnings did not have to be given as to questions
regarding name, place and date of birth, they should have been given as to inquiry into method of entry
and documentation where Service officer interviewed person while serving criminal sentence].
7.t. Rules of Evidence
(1) Rules relaxed in immigration hearing—Matter of Wadud, 19 I&N Dec. 182 (BIA 1984) [permit
sentencing memo]; 8 CFR §1240.7(a) [“Any oral or written statement which is material and relevant to
any issue in the case previously made by the respondent or any other person during any investigation,
examination, hearing or trial”]. DHS may use information on respondent’s affirmative asylum
application filed with the Service as evidence to establish burden of proof in deportation proceedings. 8
CFR §§208.3(c), 1208.3(c), 1240.11(e). However, an IJ may not use evidence from an asylum
application first filed in immigration court to establish deportability. 8 CFR §1240.11(e).
Some circuits and the BIA have found that evidentiary matters “are not subject to the Federal Rules of
Evidence and we review evidentiary rulings by IJs only to determine whether such rulings have
resulted in a violation of due process.” Hassan v. Gonzales, 403 F.3d 429, 435 (6th Cir. 2005)
[exclusion of untimely letter of asylum applicant’s parents regarding persecutors current actions did not
violate due process]; Matter of Y-S-L-C-, 26 I&N Dec. 688, 690 (BIA 2015) [although the Federal Rules
of Evidence (FRE) are not Page 622 binding in immigration proceedings, where the test for
admissibility is whether the evidence is probative and fundamentally fair, the Rules may provide strong
support to the conclusion that the admission of the evidence comports with due process]. Accord
Doumbia v. Gonzales, 472 F.3d 957, 962–63 (7th Cir. 2007) [FRE do not apply and the sole test is
whether under 8 USC §1229a(b)(4) the evidence is probative and fundamentally fair]; Zerrei v.
Gonzales, 471 F.3d 342, 346 (2d Cir. 2006) [“The Federal Rules of Evidence do not apply in removal
proceedings” and where respondent’s counsel did not object to admission of a copy of respondent’s
passport, it alone was sufficient to establish deportability as an overstay]. Cf. Leal Santos v. Gonzales,
495 F.Supp.2d 180, 185 (D. Mass. 2007) [FRE applies in federal court in a proceeding for derivative
citizenship]; But see Mathin v. Kerry, 782 F.3d 804, 809 (7th Cir. 2015) [in declaration for citizenship,
DOS’s report, notwithstanding hearsay, was admissible under public records exception at Fed.R. Evid.
803(8)]; Limbeya v. Holder, 764 F.3d 894, 898-99 (8th Cir. 2014) [rejected hearsay challenge to
affidavit and officer’s testimony on the grounds that their testimony was impeachment and therefore
not hearsay under Fed. R. Evid. 801(c)].
(2) Hearsay Admissible
(a) In General/I-213—Aparicio-Brito v. Lynch, 824 F.3d 674, 682-85 (7th Cir. 2016) [where petitioner
failed to identify a single detail suggesting error or foul play, I-213 inherently reliable, no right to call
agent, and I-213 was sufficient to establish alienage]; Dominguez-Pulido v. Lynch, 821 F.3d 837,
842 (7th Cir. 2016) [no inherent right to cross-examine drafter of I-213 which is inherently reliable
absent information it is manifestly incorrect or obtained through duress]; Gutierrez-Berdin v. Holder,

618 F.3d 647, 653 (7th Cir. 2016) [I-213 is presumptively reliable, petitioner did not demonstrate
that it was inaccurate, and the document coupled with petitioner’s silence can be used to establish
alienage even if petitioner was subject to rough verbal tactics when signing I-213]; Antia-Perea v.
Holder, 768 F.3d 647, 653-59 (7th Cir. 2014) [not denied due process where IJ refused respondent
right to cross-examine officer who drafted I-213]; Munoz-Avila v. Holder, 718 F.3d 976, 979 (7th Cir.
2013) [I-213 is inherently trustworthy absent information that is “manifestly incorrect or obtained by
duress”]; Sanchez v. Holder, 704 F.3d 1107 (9th Cir. 2012) [admitting I-213 in smuggling case
absent evidence of coercion or error]; Tassi v. Holder, 660 F.3d 710, 720-22 (4th Cir. 2011) [IJ erred
in not admitting corroborative expert testimony on mistaken belief that hearsay was not admissible
from experts]; U.S. v. Caraballo, 595 F.3d 1214 (11th Cir. 2010) [I-213 admissible in criminal case
under public records exception to hearsay and confrontation right under Crawford not violated
because I-213 was not testimonial]; Barradas v. Holder, 582 F.3d 754, 761–65 (7th Cir. 2009) [court
used I-213, I-831 along with criminal complaint to establish a conviction without the right to cross-
examine author of I-213 or I-863 where there was no showing that officer mischaracterized or
misstated information on forms]; U.S. v. Gari, 572 F.3d 1352, 1361–64 (11th Cir. 2009) [rejecting a
Crawford challenge to the admissibility of I-213s in alien smuggling case on grounds of harmless
error]; Lybesha v. Holder, 569 F.3d 877, 882 (8th Cir. 2009) [admission of DHS forensic report after
filing deadline and after conclusion of merits hearing was not a violation of due process where
petitioner was given an opportunity to respond and did not show prejudice]; Kim v. Holder, 560 F.3d
833, 836 (8th Cir. 2009) [evidence of fraudulent scheme to obtain green card from public records of
a trial or by government officials were presumptively reliable even if hearsay]; Ogbolumani v.
Napolitano, 557 F.3d 729, 734 (7th Cir. 2009) [in denial of I-130, USCIS could rely on officer’s
summary of statements regarding the fraudulent nature of the beneficiary’s first marriage]; Ali v.
Mukasey, 542 F.3d 1180, 1182–83 (7th Cir. 2008) [I-213 was admissible and not unreliable simply
because it had a harmless typographic error]; Alimi v. Gonzales, 489 F.3d 829, 835-36 (7th Cir.
2007) [admission of respondent’s statement taken by officer at airport without presenting officer for
cross-examination did not violate due process]; Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823–24
(9th Cir. 2003) [due process is not violated where inadmissibility determination for “reason to
believe” person is a drug trafficker was based upon hearsay evidence as long as evidence was
probative and fundamentally fair]; Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir. 2001) [I-
213 Page 623 admissible and sufficient to establish removability by clear, unequivocal and
convincing evidence]; Nasir v. INS, 122 F.3d 484 (7th Cir. 1997) [IJ erred in not admitting asylum
applicant’s letters verifying memberships in religious sect where he was not given opportunity to
present witnesses because of change of venue]; Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir.
1995) [I-213 admissible even where IJ did not permit cross-examination of preparer despite the
existence of 2 different handwritings on document and no indication as to who filled it out or when];
Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996) [I-213 and DMV application admissible and may
even qualify under hearsay exception, Fed. R. Evid. 803(8)]; Rosendo-Ramirez v. INS, 32 F.3d
1085, 1087–89 (7th Cir. 1994) [I-213 admitted even after court stated it “was obviously carelessly
drafted”]; Bustos-Torres v. INS, 898 F.2d 1053 (5th Cir. 1990) [I-213 admissible even without
supporting testimony where officer not present for cross-examination]; Bauge v. INS, 7 F.3d 1540,
1543 (10th Cir. 1993) [I-213 admissible with driver’s license and passport]; Tashnizi v. INS, 585 F.2d
781 (5th Cir. 1978); Glaros v. INS, 416 F.2d 441 (5th Cir. 1969) [hearsay admissible when
corroborative evidence]; Matter of Gomez-Gomez, 23 I&N Dec. 522, 523–27 (BIA 2002) [I-213
admissible and sufficient to establish deportability in in absentia case of 8-year-old where person
who was allegedly the 8-year-old’s father gave the statement]; Matter of Ponce-Hernandez, 22 I&N
Dec. 784 (BIA 1999) [I-213 admissible and sufficient to establish deportability in in absentia hearing
involving minor]. See also, U.S. v. Torres-Villalobos, 487 F.3d 607, 612–13 (8th Cir. 2007) (and
cases cited therein) [conviction upheld for unlawful reentry after deportation despite “Sixth
Amendment Confrontation Clause” challenge under Crawford v. Washington, 541 U.S. 36 (2004) to
warrants of deportation because the warrant was testimonial in nature since it attested that
someone was deported on a particular date]; U.S. v. Marguet-Pillado, 560 F.3d 1078, 1085–86 (9th
Cir. 2009) [admission of A-file does not violate Crawford]; U.S. v. Cervantes-Flores, 421 F.3d 825,
830–33 (9th Cir. 2005) [Certificate of Nonexistence of Record (CNR) to prove AG did not give
permission to re-enter U.S. was admissible and did not violate Sixth Amendment Confrontation
Clause in criminal case, notwithstanding Crawford v. Washington, 541 U.S. 36 (2004) because it
was nontestimonial like a business record]. U.S. v. Earle, 488 F.3d 537, 541–46 (1st Cir. 2007)
[admission of CNR, whether or not testimonial, was not harmful]; U.S. v. Garcia-Hernandez, 550
F.Supp.2d 1228, 1236 (S.D. Cal. 2008) [in attempted reentry case, court admitted IJ’s order of
removal and warrant of removal as self-authenticating public records under Rule 803(8)(B)
exception to hearsay]. See also Mathin v. Kerry, 782 F.3d 804, 809 (7th Cir. 2015) [in declaration for
citizenship, DOS’s report, notwithstanding hearsay, was admissible under public records exception
at Fed.R. Evid. 803(8)];
See also Vidinski v. Lynch, 840 F.3d 912 (7th Cir. 2016) [upheld marriage fraud finding and
determined hearing was not unfair where IJ relied on hearsay testimony of ICE agent who
interviewed ex-wife in marriage fraud case because respondent subpoenaed the ex-wife but never
sought to enforce subpoena pursuant to 8 CFR §1003.35(b)(6)]; Vladimirov v. Lynch, 805 F.3d 955
(10th Cir. 2015) [due process was not violated where ICE officer’s statements about marriage fraud
were admitted without cross-examination and I-213 containing triple hearsay was admitted without
cross-examining the officer]; Davis v. Lynch, 802 F.3d 168, 177-80 (1st Cir. 2015) [it was not a
violation of due process for the IJ to admit unsworn and unauthenticated statements from the wife
stating the marriage was fraudulent]; Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1299-1302 (11th
Cir. 2015) [admission of hearsay documents supporting frivolous finding on asylum were not
prejudicial]; Owino v. Holder, 771 F.3d 527, 536-37 (9th Cir. 2014) [affirmed denial of right to cross-
examine authors of overseas investigation regarding invalidity of documents in asylum case]; Antia-
Perea v. Holder, 768 F.3d 647, 653-59 (7th Cir. 2014) [where I-213 was sole basis for finding
respondent removable it did not violate due process to deny cross-examination of officer even
where other documents, such as respondent’s rap sheet, undermined the I-213 because the other
documents were raised at the relief phase and not at the time removability was established]; Angov
v. Holder, 788 F.3d 893, 896-900 (9th Cir. 2015) [where letter from DOS official summarized a fraud
investigation by the Sophia Page 624 consulate discrediting parts of Roma applicant’s claim for
asylum who was an inadmissible alien, it was not a violation of the INA or due process to admit the
letter without cross-examination despite its use as the basis for an adverse credibility finding on
asylum, withholding and CAT]; Toribio-Chavez v. Holder, 611 F.3d 57, 65-67 (1st Cir. 2010)
[submission of letter by former wife without her testifying was not fundamentally unfair under the
circumstances; nor was cross-examining him 3 times at trial]; Doumbia v. Gonzales, 472 F.3d 957,
962–63 (7th Cir. 2007) [admission of embassy report on validity of summonses in Côte d’Ivoire
court was not prejudicial or fundamentally unfair under 8 USC §1229a(b)(4)]; Gu v. Gonzales, 454
F.3d 1014, 1021–22 (9th Cir. 2006) [applicant’s hearsay testimony that friend told him that applicant
would have problems if applicant returned to China, while admissible, had limited probative value];
Ocasio v. Ashcroft, 375 F.3d 105 (1st Cir. 2004) [upholding IJ’s admission of spouse’s affidavit
regarding sham marriage where spouse failed to appear at hearing and respondent/beneficiary-wife
waived issue because she did not raise the claim that DHS failed to make reasonable efforts to
secure spouse’s appearance]; Renteria-Gonzalez v. INS, 322 F.3d 804, 816–20 (5th Cir. 2002)
[where INS officer’s hearsay statements about smuggling were admitted and the IJ did not require
INS to produce the aliens who were smuggled or allow cross-examination by an interpreter to
measure the officer’s Spanish fluency, deportation order upheld]; Dallo v. INS, 765 F.2d 581 (6th
Cir. 1985). Moreover, a respondent cannot complain about aspects of a hearsay document that he
sought to admit after submitting it. Johnson v. INS, 971 F.2d 340, 343–44 (9th Cir. 1992)
[respondent cannot later complain about derogatory information contained in affidavit submitted by
him for change of venue].
(b) Hearsay Not Admissible if Fundamentally Unfair—However, hearsay is only admissible if it is

probative and its admission would not be fundamentally unfair. Patel v. Sessions, 868 F.3d 719 (8th
Cir. 2017) [denial of I-751 reversed where respondent’s right to cross-examination and a
fundamentally fair hearing were violated because the IJ admitted the ex-husband’s affidavit that he
was paid for the marriage as well as a report concerning his statement and refused to issue a
subpoena for ex-husband’s appearance]; Rodriguez-Quiroz v. Lynch, 835 F.3d 809 (8th Cir. 2016)
[fundamentally unfair to deprive respondent of the right to submit evidence where the reliability of I-
213 was put in question] Karroumeh v. Lynch, 820 F.3d 890 (7th Cir. 2016) [in removal proceeding
based upon a sham marriage the respondent was deprived of due process when the government
failed to make reasonable efforts to produce his former wife but utilized her inconsistent and
contradictory statement, relied upon by the IJ, without an opportunity to cross-examine her];
Bondarenko v. Holder, 733 F.3d 899 (9th Cir. 2013) [IJ violated due process by not granting
continuance to allow respondent in asylum case to investigate government’s adverse forensic
report that it had for 8 months prior to confronting respondent]; Pouhova v. Holder, 726 F.3d 1007
(7th Cir. 2013) [reversed BIA removal order for smuggling as violative of 8 USC §1229a(b)(4)(B)
regarding a reasonable opportunity to cross-examine where sole evidence was translated
statement of nonpresent declarant and I-213 written seven years after interview]; Malave v. Holder,
610 F.3d 483 (7th Cir. 2010) [reversed IJ who refused request to issue subpoena of husband who
claimed in affidavit that marriage was fraudulent]; Cinapian v. Holder, 567 F.3d 1067, 1074–77 (9th
Cir. 2009) [presentation of DHS forensic report finding documents fraudulent was a denial of due
process where they were not presented to respondent prior to hearing, although completed months
before, and the IJ declined to grant a continuance]; Banat v. Holder, 557 F.3d 886 (8th Cir. 2009)
[due process violated where IJ made adverse credibility finding based on DOS letter that
determined a PFLP document was fraudulent despite the lack of information about the people who
conducted the investigation and their expertise]; Anim v. Mukasey, 535 F.3d 243, 256–62 (4th Cir.
2008) [reliance by IJ on DOS letter on the authenticity of documents violated both 8 CFR §208.6
regarding improper disclosure of asylum to third parties as well as applicant’s due process rights,
because the letter was triple hearsay, there was no evidence of how authenticity determination was
made, and the letter did not comply with minimum DHS standards]; Badasa v. Mukasey, 540 F.3d
909 (8th Cir. 2008) [IJ reversed where he relied on Wikipedia for Page 625 definition of laissez-
passer to establish asylum applicant’s identity]; Corovic v. Mukasey, 519 F.3d 90, 95–96 (2d Cir.
2008) [IJ’s finding that document was fraudulent based upon U.S. government’s request to
Macedonian government to verify documents was reversed because request to Macedonian
government violated confidentiality provision of 8 CFR §208.6 (now §1208.6)]; Silva v. Gonzales,
463 F.3d 68, 72–73 (1st Cir. 2006) [upholding IJ’s determination that asylum applicant’s reliance on
triple hearsay was not probative or reliable when finding respondent lacked credibility]; Bao v.
Gonzales, 460 F.3d 426, 431–32 (2d Cir. 2006) [reversing IJ’s adverse credibility decision in
Chinese coercive family planning case where IJ would not accept husband’s affidavit because he
could not be cross-examined, but accepted asylum officer’s memo of husband’s asylum claim
although officer could not be cross-examined]; Zhen Nan Lin v. DOJ, 459 F.3d 255, 268–72 (2d Cir.
2006) [adverse credibility finding based on a consular report that a document was a forgery was
reversed where the hearsay report relied upon statements from Chinese officials and lacked other
indicia of reliability]; Alexandrov v. Gonzales, 442 F.3d 395, 404–07 (6th Cir. 2006) [IJ violated due
process by relying on 2 highly unreliable hearsay memoranda from the U.S. embassy in Sofia to
prove respondent’s documents were fraudulent and his asylum claim frivolous]; Hernandez-
Guadarrama v. Ashcroft, 394 F.3d 674, 680–81 (9th Cir. 2005) [fundamentally unfair to permit
hearsay statement to be used against respondent when the government had deported the
declarant making her unavailable for cross-examination; where a material statement in I-213 was
based on another statement not admitted into evidence, the I-213 was not probative, was of no
independent value and was entitled to no evidentiary weight]; Ezeagwuna v. Ashcroft, 325 F.3d 396,
405–08 (3d Cir. 2003) [reliance on double and triple hearsay letter of DOS Director of Office of
Country Reports and Asylum Affairs to undermine credibility of documentary evidence in asylum
claim violated due process]; Saidane v. INS, 129 F.3d 1063 (9th Cir. 1997) [INS use of wife’s
affidavit to demonstrate sham marriage while declining to call her, rendered hearsay fundamentally
unfair and denial of due process where wife refused to honor respondent’s subpoena]; Murphy v.
INS, 54 F.3d 605 (9th Cir. 1995) [I-213 and statement of INS officer containing double hearsay
should not have been accorded any weight, nor used to establish charge by clear, convincing and
unequivocal evidence]; Olabanji v. INS, 973 F.2d 1232 (5th Cir. 1992) [where affidavits of spouse
who claimed marriage was fraudulent and handwriting expert who claimed spouse’s signature on
petition was fraudulent were unavailable for cross-examination, deportation order reversed];
Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) [BIA erred in admitting witness affidavit in
smuggling case under former 8 USC §1251(a)(13) where INS failed to demonstrate it sought
witness’ presence at the hearing]; Cunanan v. INS, 856 F.2d 1373 (9th Cir. 1988) [denial of VD
reversed where BIA relied on I-213 and affidavit from respondent’s wife but denied respondent
opportunity to cross-examine by not making declarant available or informing respondent in advance
it was going to use wife’s affidavit]; Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983); Kiareldeen v. Reno,
71 F.Supp.2d 402, 405–08 (D.N.J. 1999) [use of unclassified evidence based on statements from a
person who would not testify that deprives applicant of bond is a violation of right to cross-examine
and of due process].
(c) Impeachment Is Not Hearsay—Even where a hearsay challenge is made, the court may take the
view that the information presented is not hearsay because it falls within an exception to the
Federal Rule. Limbeya v. Holder, 764 F.3d 894, 898-99 (8th Cir. 2014) [rejected hearsay challenge
to affidavit and officer’s testimony on the grounds that their testimony was impeachment and
therefore not hearsay under Fed. R. Evid. 801(c)].
(d) Crawford/Testimonial Exception Regarding Hearsay—Crawford v. Washington, 541 U.S. 36 (2004)

[in criminal context, out-of-court statements by witnesses that are testimonial (even if the
statements are otherwise reliable) are barred by the Confrontation Clause unless the witnesses are
unavailable and defendant had an opportunity to cross-examine]; Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) [found admission of Page 626 certificate of analysis by laboratory inadmissible
because it violates Confrontation Clause]; Michigan v. Bryant, 562 U.S. 344, 358-59 (2011);
Bullcoming v. New Mexico, 564 U.S. 647. 662-63 (2011); U.S. v. Causevic,636 F.3d 998, 1003-04
(8th Cir. 2011) [court erred in admitting conviction record of in absentia order for murder to prove
false statement on I-485 in case under 18 USC §1001(a)(2) and 18 USC §1546(a) because the
order is testimonial under Crawford and Kirby v. U.S., 174 U.S. 47 (1899)]; U.S. v. Marguet-Pillado,
560 F.3d 1078, 1086 (9th Cir. 2009) [admission of A-file as business record violated hearsay rule
because only the statement of defendant’s father was relevant and he was not government
employee]; Malave v. Holder, 610 F.3d 483, 487-88 (7th Cir. 2010) [recognizing that Crawford is
limited to criminal context in light of Richardson v. Perales, 402 U.S. 389 (1971) but reversed IJ who
refused to issue subpoena for husband who claimed in affidavit that marriage was fraudulent
thereby depriving respondent of statutory right of cross-examination]. But see U.S. v. Lopez, 762
F.3d 852, 859-62 (9th Cir. 2014) [in case, where defendant had previously been removed
government did not need order of removal and could rely on a “verification that noncitizen was
physically removed” and it was nontestimonial and thus, not subject to Crawford]; U.S. v. Rojas-
Pedroza, 716 F.3d 1253, 1262-67 (9th Cir. 2013) [records from A-file were admissible because they
were not made for trial and therefore not testimonial].
(e) Use of I-213
i) Statement Taken from Minors—Statement taken from unaccompanied minor under 18 on I-213
is not admissible. 8 CFR §1240.10(c). See Davila-Bardales v. INS, 27 F.3d 1 (1st Cir. 1994)
[reversing BIA for having inconsistent positions regarding inadmissibility of statements from
minors]. But see Matter of Amaya, 21 I&N Dec. 583 (BIA 1996) [distinguishing Davila-Bardales,
and finding that IJ can accept admissions of fact from minors but only after conducting specific
inquiry]; Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999) [reversing IJ in an in absentia
case involving a minor where the IJ found that I-213 taken when the minor was 15 was
insufficient to establish deportability]; Matter of Gomez-Gomez, 23 I&N Dec. 522, 523–27 (BIA
2002) [IJ’s decision to terminate proceeding and discount I-213 reversed in in absentia hearing
where INS relied on I-213 taken from person who was alleged to be parent of 8-year-old].
ii) Procedural Issues When Veracity of I-213 is Challenged—Under BIA decisions, where evidence
is challenged (e.g., veracity of I-213), alien must come forward with a prima facie case based on
testimony (not affidavits alone) before DHS is called upon to respond. Matter of Barcenas, 19
I&N Dec. 609 (BIA 1988); Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2016) [I-213 is
presumptively reliable, petitioner did not demonstrate that it was inaccurate, and the document
coupled with petitioner’s silence can be used to establish alienage even if petitioner was subject
to rough verbal tactics when signing I-214]; Maldonado v. Holder, 763 F.3d 155, 159 (2d Cir.
2014) [interpreting Barcenas to require egregiousness, which is “rarely satisfied”]; Antia-Perea v.
Holder, 768 F.3d 647, 658-59 (7th Cir. 2014) [use of rap sheet to undermine I-213 came too late
because it was raised at the relief phase and not at the time removability was established]. But
see Sicajau Cotzojay v. Holder, 725 F.3d 172, 176 (2d Cir. 2013) [clarifying procedural
obligations under Barcenas]; Murphy v. INS, 54 F.3d 605, 612 (9th Cir. 1995) [burden remains
on INS to establish alienage by clear and convincing evidence]; Matter of Mejia, 16 I&N Dec. 6
(BIA 1976).
(3) Time for Submission of Evidence—The Immigration Court Practice Manual, Chapter 3, creates a
“guide” for the submission of evidence in immigration proceedings. According to the Manual,
documents and evidence must be submitted in nondetained cases 15 days before a merits hearing or
15 days before a master calendar, and must be in the appropriate form, including a cover sheet,
binding, tabs, and font size designated in the Manual at 3.1(b), 3.2, 3.3. Untimely filings authorize the
IJ to deny relief or not consider exhibits as evidence. Manual, 3.1(d)(ii); 8 CFR §1003.31(c) [“If an
application or document is not filed within Page 627 the time set by the Immigration Judge, the
opportunity to file that application or document shall be deemed waived”]; Tang v. U.S. Att’y Gen., 578
F.3d 1270, 1275–76 (11th Cir. 2009) [no regulatory or due process violation from IJ’s decision not to
accept documents submitted in asylum hearing after ordered filing date]; Kueviakoe v. U.S. Att’y Gen.,
567 F.3d 1301, 1306 n.3 (11th Cir. 2009) [no abuse of discretion for IJ to refuse to admit untimely
exhibits offered the day of the hearing]. But see Owino v. Holder, 771 F.3d 527, 532-33 (9th Cir. 2014)
[denial of request to submit evidence several days before IJ was going to render decision reversed for
failure to apply proper standard]. See also Nanic v. Lynch, 793 F.3d 945, 949 (8th Cir. 2015) [15-day
requirement may not have been violated where government’s expert was offered solely as a rebuttal
witness and there was some evidence they had moved to admit his testimony 6 months before the
hearing].
(4) Time for Submission of Applications—Some IJs have also denied applications for failure to submit the
application timely. See e.g., Matter of R-R-, 20 I&N Dec. 547 (BIA 1992) [application deemed waived
where IJ set date for filing asylum application and attorney mistakenly filed with DD instead of court];
Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013) [citing other circuits for abuse of discretion
standard of review and finding no abuse for IJ’s decision to deem CAT and other applications waived
for failing to adhere to imposed deadlines]; Moreta v. Holder, 723 F.3d 31 (1st Cir. 2013) [failure to file
cancellation application by IJ deadline deemed abandoned even where the failure was not-intentional
and was only delayed];But the IJ may not deem an application abandoned for failure to file evidence
supporting the application. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010) [IJ erred in deeming
NACARA application abandoned instead of discounting requested evidence]; Casares-Castellon v.
Holder, 603 F.3d 1111 (9th Cir. 2010) [IJ/BIA may not deem timely filed application abandoned under 8
CFR §1003.31(c) where applicant failed to submit documents supporting his request for relief within
the time prescribed by the IJ]. But see Umezurike v. Holder, 610 F.3d 997, 1004-05 (7th Cir. 2010)
[failure to comply with deadlines for submission of evidence under 8 CFR §1003.31 was a sufficient
basis to permit IJ to deem asylum application abandoned]; Bropleh v. Gonzales, 428 F.3d 772, 778–79
(8th Cir. 2005) [IJ did not err in failing to rule on application where respondent declined to abandon
AOS application but counsel said he would not present any evidence].The IJ “may set and extend time
limits for the filing of applications and related documents and responses thereto, if any.” 8 CFR
§1003.31(c); Hussain v. Gonzales, 424 F.3d 622, 626–27 (7th Cir. 2005) [due process not violated
where IJ set 60 days for submission of documents for asylum hearing rather than the 10 days under
the local rules and there was no evidence that the earlier deadline prejudiced respondent]. The clerk’s
office may not refuse to accept a motion, pleading, application, or document as untimely because that
decision rests with the IJ. Memo [OPPM 08-03], Neal, Chief Immigration Judge, EOIR (Apr. 23, 2008)
at 2, AILA Doc. No. 08042860. The 15-day rule does not apply to impeachment witnesses or
impeachment documents. Hammad v. Holder, 603 F.3d 536, 543 (9th Cir. 2010) [where government
brought in former wife as an impeachment witness, the 15-day rule was inapplicable].
(5) Authentication
(a) Methods of Authentication—A document may be authenticated through various means.
i) Certification procedures established in 8 CFR §§287.6, 1287.6—Requires attestation of a copy

by the official having legal custody of an official record and under §§287.6(b), 1287.6(b) a
foreign document must be authenticated by a consular officer unless the country is a signatory
to convention abolishing such requirements.
ii) Fed. R. Evid. 902(3).
iii) Fed. R. Civ. P. 44—Chew v. Boyd, 309 F.2d 857 (9th Cir. 1962); McNeil v. Kennedy, 298 F.2d
323 (D.C. Cir. 1962); Matter of Nand, 13 I&N Dec. 336 (BIA 1964); Baliza v. INS, 709 F.2d 1231
(9th Cir. 1983). But see Matter of Mejia, 16 I&N Dec. 6 (BIA 1976); Matter of Lopez, 15 I&N Dec.
183 (BIA 1975).
iv) An expert or one with knowledge under Fed R. Evid. 901(a)–(b)(1). But see Yongo v. INS, 355
F.3d 27, 30–32 (1st Cir. 2004) [Fed. R. Evid. 901–02 regarding authentication does not apply
and a document may be authenticated where immigration Page 628 officer attests to where he
obtained the document and that he is familiar with the type of record].
v) “Inherent Reliability” of Document—Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988) [I-213
admissible to prove alienage and deportability because it is inherently reliable absent a showing
that the information is incorrect or was obtained by coercion or duress]; U.S. v. Agustino-
Hernandez, 14 F.3d 42 (11th Cir. 1994) [characterizing documents in “A” file, such as I-194 and
warrant of deportation, as routinely and mechanically kept, and therefore their admission does
not violate Fed. R. Evid. 803(8)(B)].
(b) Adherence to Certification Process—Hang Chen v. Holder, 675 F.3d 100, 107 (1st Cir. 2012) [“The
BIA has discretion to deem a document’s lack of authentication a telling factor weighing against its
evidentiary value”]; Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146–49 (2d Cir. 2007) [no abuse of
discretion in denying motion to reopen for changed country conditions where document from
Changle Province, China was not authenticated under §287.6 in light of prior adverse credibility
finding given the doctrine of falsus in uno, falsus in omnibus]; Ali v. U.S. Att’y Gen., 443 F.3d 804,
812–13 (11th Cir. 2006) [no abuse of discretion in rejecting a photocopy of pardon that did not
comply with the regulation where respondent offered no compelling reason for his failure to obtain a
properly certified copy]; Iran v. INS, 656 F.2d 469, 473 (9th Cir. 1981) [holding unauthenticated I-
506 inadmissible]. The BIA requires authentication in regard to conviction records or proof of a
conviction even if DHS is relying on the other record exception in 8 CFR §1003.41(d). Matter of J.R.
Velasquez, 25 I&N Dec. 680, 685 (BIA 2012) [government may rely on other documents under 8
CFR §1003.41(d) to prove a conviction but they must be authenticated].
(c) Authentication Not the Exclusive Method—In Qui Yun Chen v. Holder, 715 F.3d 207, 211-12 (7th
Cir. 2013) the court discussed 8 CFR §287.6 and Fed. R. Evid. 902(3) as applying only to
certification of documentsand recognizing that documents in immigration proceedings may be
authenticated through “any recognized procedure” and that the certification method in the
regulation and rule is “an alternative to authentication by evidence, not a form, let alone a
mandatory form, of authentication.” See also Owino v. Holder, 771 F.3d 527, 532-33 (9th Cir. 2014)
[foreign arrest warrant was authenticated by Federal Defenders of San Diego pursuant to Fed. R.
Evid. 901]; Fei Yan Zhu v. U.S. Att’y Gen., 744 F.3d 268, 272-74 (3d Cir. 2014) [following Qui Yun
Chen and finding that “indicia of reliability may be shown in various ways” including checking
government websites, looking to the Federal Rules of Evidence, allowing proponent’s testimony
concerning the method he obtained the documents as well as expert testimony]; Yan Rong Zhao v.
Holder, 728 F.3d 1144, 1149-50 (9th Cir. 2013) [failure to obtain authentication is not a bar and no
issue of reliability was raised] ;Tassi v. Holder, 660 F.3d 710, 722-24 (4th Cir. 2011) [IJ erred in
discrediting documents because authentication procedures under 8 CFR §287.6 were not followed
despite other means of authentication]; Zhanling Jiang v. Holder, 658 F.3d 1118, 1119-20 (9th Cir.
2011) [IJ abused her discretion where she declined to allow authentication through petitioner’s
testimony of documents evidencing petitioner’s status as single man from PRC so he could AOS
under 1st preference insisting instead on authentication by consular officer under 8 CFR §287.6]; Li
v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008) [IJ’s adverse credibility finding reversed where she did
not consider corroborating documents because they were not authenticated pursuant to 8 CFR
§287.6]; Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007) [petitioner’s testimony is a proper
method that may be used to authenticate foreign public documents and IJ reversed where he
insisted that applicant obtain a certified document]; Gebreeyesus v. Gonzales, 482 F.3d 952, 955
(7th Cir. 2007) [reversing denial of motion to reopen by Amharan from Ethiopia where BIA claimed
that family members’ letters had to be authenticated despite the letters not being official records];
Xue Deng Jiang v. Gonzales, 474 F.3d 25, 28–29 (1st Cir. 2007) [affidavit from father and
declaration from parish priest are not “official records” requiring authentication pursuant to 8 CFR
§§287.6 and 1287.6 is not an exclusive method for authenticating records in asylum Page 629
cases]; Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir. 2006) [failure to authenticate documents
pursuant to §287.6 does not amount to presumptive proof of falsity; IJ reversed on credibility
finding]; Sukwanputra v. Gonzales, 434 F.3d 627, 636–37 (3d Cir. 2006) [reversing IJ who refused
to give any weight to unauthenticated documentary evidence on the basis of §287.6 and failed to
afford the applicant an opportunity to authenticate through other means]; Cao He Lin v. DOJ, 428
F.3d 391, 404–05 (2d Cir. 2005) [reversing IJ where she declined to accept the notarial birth
certificate of an asylum applicant’s child because it was not authenticated under 8 CFR §287.6];
Zhang v. Gonzales, 405 F.3d 150, 155–56 (3d Cir. 2005) [where it was unclear whether IJ did not
admit foreign documents or admitted them but gave them no weight because they were not
authenticated pursuant to §287.6, the court remanded to BIA and ruled that §287.6 is not the
exclusive means to authenticate]; Leia v. Ashcroft, 393 F.3d 427, 433–35 (3d Cir. 2005)[following
Liu reversing BIA decision denying asylum and withholding on credibility grounds because
respondent failed to present authenticated documents under 8 CFR §287.6; section 287.6 is not the
exclusive means to authenticate and respondent had the right to present evidence when
authentication was not possible]; Liu v. Ashcroft, 372 F.3d 529 (3d Cir. 2004)[IJ reversed where he
admitted document without certification but gave it no weight; DHS conceded that regulation is not
an absolute rule nor the exclusive means of authenticating]; Yongo v. INS, 355 F.3d 27, 31 (1st Cir.
2004) [regulation is one method, but not the exclusive method of authenticating]; Wang v. INS, 352
F.3d 1250, 1254 (9th Cir. 2003) [reversing IJ’s adverse credibility finding based upon failure to
authenticate documents solely because forensic experts could not determine authenticity]; Khan v.
INS, 237 F.3d 1143 (9th Cir. 2001) [rejecting IJ’s refusal to admit documents not certified by
consular officer and finding that documents may be authenticated through any recognized
procedure, including the Fed. R. Civ. P.]. But even where document need not be authenticated by
official means, there must be some authentication to render the document admissible. Wanrong Lin
v. Holder, 771 F.3d 177, 186-87 (4th Cir. 2014) [in denying motion to reopen for changed country
conditions in China for the second time, BIA did not abuse its discretion in giving little weight to
documents that were not authenticated in any manner despite BIA previously suggesting an
affidavit from applicant as to source]; Xiu Ling Chen v. Holder, 751 F.3d 876, 879-80 (8th Cir. 2014)
[even if 8 CFR §1287.6 is not the exclusive method to authenticate documents, denial of motion to
reopen was upheld where documents were not authenticated in any manner]; Mu Ying Wu v. U.S.
Att’y Gen., 745 F.3d 1140 (11th Cir. 2014) [where 2006 Tingjiang Document was neither certified
under §287.6(b) nor authenticated through another means, the IJ was within his discretion to give it
little or no weight even if government determined document was not altered]; Ying Chen v. U.S.
Att’y Gen., 676 F.3d 112, 117 (3d Cir. 2012) [document mom obtained without any evidence of
authentication except daughter-asylee’s statement may be excluded]. The BIA also does not abuse
its discretion when it requires authentication if there has been an adverse credibility finding. Qin
Wen Zheng v. Gonzales, 500 F.3d 143, 146–49 (2d Cir. 2007) [no abuse of discretion in denying
motion to reopen for changed country conditions where document from Changle Province, China
was not authenticated under §287.6 in light of prior adverse credibility finding given the doctrine of
falsus in uno, falsus in omnibus].
(6) I-9 and Other Employment Documents—An I-9 may be used to establish removal for having
unlawfully worked and as a basis to relief of AOS because of a false claim to USC. Downs v. Holder,
758 F.3d 994, 997 (8th Cir. 2014) [denied motion to suppress I-9 and other employment and school
records and rejected claim that INA §274A(b)(5) or Whiting and Arizona v. U.S. barred the use of I-9s
in removal proceedings]; Matter of Bett, 26 I&N Dec. 437 (BIA 2014) [adopted reasoning in Downs and
applied it nationwide]. See Chapter 12, ¶ I.D.4 (p.2069), infra
(7) Original Documents—Yan Rong Zhao v. Holder, 728 F.3d 1144, 1149 (9th Cir. 2013) [failure to
present original documents alone without indicia of unreliability cannot be a basis to bar evidence
where BIA’s own Practice Manual (at p. 40) instructs parties not to submit originals]; Padilla-Martinez v.
Holder, 770 F3d 825, 831-33 (9th Cir. 2014) [use of faxed Page 630 copy of a transcript to prove
conviction without original or certified copy was sufficient and did not violate due process].
(8) Admission of a Crime for Inadmissibility Purposes—In Matter of K-, 7 I&N Dec. 594, 598 (BIA 1957)
the BIA adopted a 3-part test for the acceptance of an admission: (1) the admitted conduct must
constitute the essential elements of the crime; (2) the applicant must have been provided with a
definition and the essential elements of the offense prior to his admission; and (3) the admission must
be voluntary. For a discussion concerning admission, see in this chapter ¶ III.C.2.c (p.130), supra.
(9) Criminal Records Establishing Convictions under 8 CFR §1003.41—Docket entries, abstracts of
records of conviction, minutes of a court proceeding or any document prepared by the court in which
the conviction was entered that indicates the existence of the conviction. Documents may be submitted
electronically as long as staff official certifies documents.
The commentary to the regulations specifically recognize that admissibility of these documents and
establishing deportability under Woodby are different. 58 FR 38952–54 (July 21, 1993).
Abstract of Judgment; Minute Order—Medina-Lara v. Holder, 771 F.3d 1106, 1112-19 (9th Cir. 2014)
[holding that where charge says cocaine but abstract only records “controlled substance” ICE failed to
prove that conviction is for an aggravated felony or drug crime by clear and convincing evidence];
Duenas-Alvarez v. Holder, 733 F.3d 812, 814 (9th Cir. 2013) [relying on U.S. v. Snellenberger,
Cabantac v. Holder and U.S. v. Valdavinos-Torres, the court may rely on abstract of judgment or
minute order in applying modified categorical approach]; Coronado v. Holder, 759 F.3d 977, 985-86
(9th Cir. 2014) [same including certified electronic “docket sheets” on theory that the court may rely on
“equally reliable” documents to those specified in Shepard]; Chuen Piu Kwong v. Holder, 671 F.3d 872,
877-79 (9th Cir. 2011) [using abstract of judgment to prove that Cal. Penal Code §459 is a COV under
section 16(b); noting that court’s en banc decision in U.S. v. Snellenberger, 548 F.3d 699 (9th Cir.
2008) undermined U.S. v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) which prohibited use of
abstract]; Ramirez-Villalpando v. Holder, 645 F.3d 1035 (9th Cir. 2011) [based on abstract of judgment
and charging document, Cal. Penal Code, §487(a) is an aggravated felony under modified categorical
approach]; Retuta v. Holder, 591 F.3d 1181, 1185 (9th Cir. 2010). See also Roman v. Mukasey, 553
F.3d 184 (2d Cir. 2009) [counsel’s admission of the charges in the NTA including admission of the
conviction constitutes clear and convincing evidence sufficient to establish deportability]; Vaca-Tellez v.
Mukasey, 540 F.3d 665, 670–71 (7th Cir. 2008) [court properly relied on a certified copy of the
information and a Certified Statement of Conviction/Disposition (which was the notes of the
proceeding) to find an aggravated felony conviction]; Ochieng v. Mukasey, 520 F.3d 1110, 1113–14
(10th Cir. 2008) [it was not error to rely on minute order of Idaho court to determine conviction];
Savchuck v. Mukasey, 518 F.3d 119, 122–23 (2d Cir. 2008) [submission of a print-out of respondent’s
rap sheet, a copy of a Certificate of Disposition of petit larceny conviction, a copy of the Sentence and
Order of Commitment for grand larceny conviction accompanied by a Certification of Records by DHS
along with respondent’s testimony admitting convictions was sufficient]; Singh v. DHS, 517 F.3d 638,
643–46 (2d Cir. 2008) [DHS established by clear and convincing evidence that petitioner was
convicted of assault under N.Y. Penal Law §120.05(1) by upholding the admission of a Conditions of
Probation document, a Certificate of Disposition, and a post-conviction rap sheet which individually
would be insufficient but in combination proved the conviction]; Adefemi v. Ashcroft, 386 F.3d 1022,
1029 (11th Cir. 2004) (en banc)[affirming use of a City Court of Atlanta document that contains several
ambiguities to establish deportability for a firearms offense by clear and convincing evidence because
the court under the substantial-evidence test “ must affirm the agency’s decision unless there is no
reasonable basis for that decision”]. But see Conteh v. Gonzales, 461 F.3d 45, 57–59 (1st Cir. 2006)
[cannot rely on respondent’s after-the-fact statements or the presentence investigation report (PSI) to
establish the record of conviction]; Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. 2003)
[affirming Huerta–Guevara and determining that a PSI cannot be used to establish that a divisible
statute is an aggravated felony]; Matter of Pichardo, 21 I&N Dec. 330, 331 (BIA 1996). Page 631
Under INA §240(c)(3)(B), 8 USC §1229a(c)(3)(B) any of the following documents constitute proof of a
criminal conviction: (i) an official record of judgment and conviction; (ii) an official record of plea,
verdict, and sentence; (iii) a docket entry from court records that indicates the existence of the
conviction; (iv) official minutes of a court proceeding or a transcript of a court hearing in which the court
takes notice of the existence of the conviction; (v) an abstract of a record of conviction; (vi) any
document or record prepared by or under the direction of the court indicating the existence of the
conviction; or (vii) any document or record maintained by a penal institution attesting to the conviction.
INA §240(c)(3)(B). See e.g., Francisco v. U.S. Att’y Gen., 884 F.3d 1120, 1123 n.4 (11th Cir. 2018) [in
dicta suggesting that all documents enumerated under INA §240(c)(3)(B) may constitute Shepard
documents to be relied upon in the modified categorical approach because they are “judicially
noticeable” documents]. Electronic records are also admissible if certified by a state official and
certified by a DHS official as having been received electronically. INA §240(c)(3)(C); 8 CFR
§1003.41(c). Retuta v. Holder, 591 F.3d 1181, 1184–85 (9th Cir. 2010) [minute order of a California
court, despite acronyms and abbreviations, is not sufficiently ambiguous to undermine its use to
establish a conviction by clear and convincing evidence as “official minutes” are one of the statutory
permissible documents]; Singh v. DHS, 526 F.3d 72, 78–80 (2d Cir. 2008) [proving CIMT by submitting
Conditions of Probation, Certificate of Disposition, and rap sheets in combination under §1229a(c)(3)
(B)(ii) & (vi)]; Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1195–97 (9th Cir. 2006) [where electronic
records of conviction were not certified by state officials but respondent did not object before the IJ,
court found the conviction records were admissible because the statutory and regulatory requirements
only set forth when documents must be admitted (a “safe harbor”) and not when they can be admitted
without meeting the statutory or regulatory requirements if they are otherwise authenticated under any
procedure that comports with common law rules of evidence]. The list of documents is also not
exclusive and the government may offer “any other evidence” to establish deportability. 8 CFR
§1003.41(d). Fraser v. Lynch, 795 F.3d 859, 862-64 (8th Cir. 2015) [IJ could rely on police record and
pardon document in conjunction with Canadian Information and Trial Disposition to bolster sufficiently
deficiencies in the Information and Trial Disposition so as to prove by clear and convincing evidence
Canadian conviction for possession of cocaine]; Barradas v. Holder, 582 F.3d 754, 761–65 (7th Cir.
2009) [court used I-213, I-831 along with criminal complaint to establish a conviction under the “any
other evidence” provision without granting respondent-LPR the right to cross-examine author of I-213
or I-863 where there was no showing that officer mischaracterized or misstated information on forms];
Rosales-Pineda v. Gonzales, 452 F.3d 627 (7th Cir. 2006) [relying on the broad language of 8 CFR
§1003.41(d) and finding that an FBI rap sheet, as distinguished from a foreign rap sheet, could be
used as evidence of a conviction where there was other supporting evidence and the issue was denial
of discretionary relief and not whether person was removable]; Francis v. Gonzales, 442 F.3d 131,
141–45 (2d Cir. 2006) [documents other than those listed in 1003.41 may be submitted as evidence
but the court found a rap sheet/police report from Jamaica did not support a finding of a conviction
under the Woodby standard even with an ambiguous oral admission of conviction]; Fequiere v.
Ashcroft, 279 F.3d 1325, 1327 (11th Cir. 2002) [respondent’s admission of drug conviction under oath
established conviction for immigration purposes notwithstanding the absence of any document
enumerated in INA §240(c)(3)(B)]. However, if DHS or the IJ is going to rely on the catch-all provision
of 1003.41(d) it must nevertheless authenticate the document. Matter of J.R. Velasquez, 25 I&N Dec.
680, 685 (BIA 2012) [government may rely on other documents under 8 CFR §1003.41(d) to prove a
conviction but they must be authenticated]. But see Padilla-Martinez v. Holder, 770 F3d 825, 831-33
(9th Cir. 2014) [use of faxed copy of a transcript to prove conviction without original or certified copy
was sufficient and did not violate due process].
(10) What Constitutes the Record of Conviction—As used in the modified categorical approach, the
Supreme Court has defined the “record of conviction” in a nonimmigration case involving a guilty plea
to include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.” Shepard v. U.S., 544 U.S. 13, 16
(2005) [sentencing court cannot look to police reports in deciding whether a crime is a “generic
burglary” for purposes of the Armed Career Criminal Page 632 Act]. The record of conviction (including
indictment or information, plea, verdict or judgment and sentence) can be considered to determine
whether conviction is deportable offense under a divisible statute, Moncrieffe v. Holder, 569 U.S. 184,
191 (2013). Vue v. INS, 92 F.3d 696, 700 (8th Cir. 1996) [In pre-Moncrieffe case, IJ properly relied
upon amended criminal complaint to establish firearms offense]; Matter of Madrigal, 21 I&N Dec. 323
(BIA 1996) [transcript of plea and sentence hearing is part of record]; Cervantes v. Holder, 772 F.3d
583, 587-89 (9th Cir. 2014) [although Cal. Pen. Code §273.5(a) for willfully inflicting corporal injury on
a spouse or cohabitant may, under the modified categorical approach, be a CIMT, the IJ could not rely
on the respondent’s description of the victim on the stand because it went beyond the appropriate
documents]; Martinez-Perez v. Ashcroft, 417 F.3d 1022, 1028–29 (9th Cir. 2005) [documents to be
considered as part of the record of conviction under the modified categorical approach are those
specified in Shepard v. U.S.];In Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) the Ninth
Circuit determined that the only documents that may be relied upon in determining whether a
conviction is for an aggravated felony under a divisible statute are the charging document, a signed
plea agreement, jury instructions, the guilty plea, a transcript of the plea and the judgment. This does
not preclude the use of minute orders to prove a conviction or the use of other documents below to
prove the judgment. Murray v. Ashcroft, 285 F.Supp.2d 664, 670 (E.D. Pa. 2003) [no violation of due
process to rely on record of stipulated trial under PA law to establish aggravated felony]. Testimony,
however, is not part of the record of conviction and may not be used to establish an element of the
conviction. Evanson v. U.S. Att’y Gen., 550 F.3d 284, 292–93 (3d Cir. 2008) [court could not rely on
respondent’s testimony before IJ, factual assertions in the judgment of sentence, or charges in
indictment that were not sustained under modified categorical approach and therefore BIA erred in
determining that a conviction under 35 Pa. Cons. Stat. §780-113(a)(30) was for a drug trafficking
aggravated felony because there was no proof of remuneration or more than a small amount of
marijuana]; Tokatly v. Ashcroft, 371 F.3d 613, 619–24 (9th Cir. 2004) [impermissible for IJ to rely on
testimony of respondent or the victim to establish that respondent committed a crime of domestic
violence]; but see Anaya-Ortiz v. Mukasey, 594 F.3d 673, 678 (9th Cir. 2010) [relying on Matter of N-A-
M- an applicant’s own testimony at removal hearing regarding the facts of his drunk driving conviction
could be used to determine whether he committed a particularly serious crime]; U.S. v. Almazan-
Becerra, 537 F.3d 1094, 1096–1101 (9th Cir. 2008) [in sentencing for reentry after deportation, court
could rely on police report to prove underlying aggravated felony where the defendant stipulated that
the police report contained a factual basis for his guilty plea]. The record of conviction is also
somewhat different if there was a conviction after a jury trial. If a person is convicted after trial (not by a
plea) and there is no verdict form or jury instructions to demonstrate a finding regarding an element of
the offense, the submission of an indictment and a judgment alone will not be sufficient. Whatever
records are used they must establish deportability under Woodby standard. Conteh v. Gonzales, 461
F.3d 45, 57–59 (1st Cir. 2006) [cannot rely on respondent’s after-the-fact statements or the PSI report
to establish the record of conviction]; Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996) [cannot rely on
testimony of respondent to establish element of crime]; Matter of Sanudo, 23 I&N Dec. 968, 974–75
(BIA 2006) [where the factual narrative of the police report was not incorporated into the charging
document or the plea, it could not be considered in determining whether respondent may be removed];
Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996). This list, however, is not exclusive and the government
may offer “any other evidence” to establish deportability. 8 CFR §1003.41(d). Alvarado v. Holder, 759
F.3d 1121, 1132-33 (9th Cir. 2014) [over respondent’s objection that he never agreed to statement
attached to plea agreement four days after the plea, it was sufficient to carry burden that respondent
was convicted of attempted possession of methamphetamine an aggravated felony]; Barradas v.
Holder, 582 F.3d 754, 761–65 (7th Cir. 2009) [court used I-213, I-831 along with criminal complaint to
establish a conviction under the “any other evidence” provision without granting respondent-LPR the
right to cross-examine author of I-213 or I-863 where there was no showing that officer
mischaracterized or misstated information on forms]; Francis v. Gonzales, 442 F.3d 131, 141–45 (2d
Cir. 2006) [documents other than those listed in §1003.41 may be submitted as evidence but the court
found a rap sheet/police report from Jamaica did not support a finding of a conviction under the
Woodby standard even with an ambiguous oral admission of conviction]; Fequiere v. Ashcroft, 279
F.3d 1325, 1327 (11th Cir. 2002) Page 633 [respondent’s admission of drug conviction under oath
established conviction for immigration purposes notwithstanding the absence of any document
enumerated in INA §240(c)(3)(B)].
Shepard also has its limitations. In Nijhawan v. Holder, 557 U.S. 29, 37-43 (2009), the Court found that
the limitation on documentation in Shepard may not apply to the analysis of all aggravated felonies.
Although subparagraphs (A)–(C) and (E), (H)–(J), (L) may be subject to the documentary and
evidentiary limitations under Shepard, other aggravated felonies such as (P), (K)(ii) and (M)(i) & (ii)
have elements that are circumstance-specific and therefore are not amenable to the documentary
limitations.
Abstract of Judgment—Duenas-Alvarez v. Holder, 733 F.3d 812, 814 (9th Cir. 2013) [relying on U.S. v.
Snellenberger, Cabantac v. Holder and U.S. v. Valdavinos-Torres, the court may rely on abstract of
judgment or minute order in applying modified categorical approach]; U.S. v. Ramos-Medina, 706 F.3d
932, 939-40 (9th Cir. 2013) [where a defendant stipulates during his plea colloquy that other
documents, such as a probation report or a police report, contain the factual basis for the plea, the
court may consider those documents in the modified categorical approach]; Arguelles-Olivares v.
Mukasey, 526 F.3d 171 (5th Cir. 2008) [can use presentence report (PSR) to establish amount of loss];
James v. Gonzales, 464 F.3d 505, 510–14 (5th Cir. 2006) [where respondent pleaded guilty to bank
fraud resulting in a loss of $9,500 but restitution exceeded $10,000, the court relied in part on the PSR
to find it was an aggravated felony]; Adefemi v. Ashcroft, 386 F.3d 1022, 1030 n.11 (11th Cir. 2004) (en
banc)[distinguishing Pichardo and finding respondent’s admission corroborating his firearms conviction
was relevant evidence]; Lara-Ruiz v. INS, 241 F.3d 934, 941 (7th Cir. 2001) [BIA may look beyond
conviction records to determine sexual assault was committed against a 4-year-old where no
evidentiary hearing was required]; Matter of Davey, 26 I&N Dec. 37 (BIA 2012) [under INA §237(a)(2)
(B)(i) a single offense involving possession of 30 grams or less of marijuana call for a circumstance-
specific inquiry]; Matter of Babaisakov, 24 I&N Dec. 306, 319–21 (BIA 2007) [under INA §101(a)(43)
(M), the IJ may rely on restitution orders, PSRs, and admissions during plea colloquies as well as “any
evidence, otherwise admissible in removal proceedings, including witness testimony” and “testimonial
admissions of the respondent made during the removal hearing” to prove the loss exceeded $10,000];
Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007) [under INA §101(a)(43)(K)(ii), the IJ may go
beyond the record of conviction to establish “commercial advantage” and use the PSR, the
respondent’s admissions, and any other relevant evidence]; Matter of Vargas, 23 I&N Dec. 651 (BIA
2004), aff’d, 448 F.3d 159 (2d Cir. 2006) [where judgment did not indicate under which part of the
statute respondent was convicted, the BIA found him deportable because indictment established he
was convicted of a COV]. See also U.S. v. Benitez-De Los Santos, 650 F.3d 1157, 1160 (8th Cir. 2011)
[expanding Shepard documents following Castro v. Holder, 340 F.App’x 410, 412 (9th Cir. 2009) and
found that the Report—Indeterminate Sentence under California law is a “Shepard” document because
it is a comparable judicial record prepared and signed by a deputy clerk of court]; U.S. v.
Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc) [Calif. court clerk’s minute order is sufficient
under Shepard]; Suazo Perez v. Mukasey, 512 F.3d 1222, 1226–27 (9th Cir. 2008) [police report could
be utilized in modified approach where defendant checked a box on his plea that stated he agreed that
“the court may review the police reports and/or statement of probable cause supplied by the
prosecution to establish a factual basis of the plea”]. But see Thomas v. U.S. Att’y Gen., 625 F.3d 134,
143-48 (3d Cir. 2010) [a police report of a misdemeanor is not an indictment or information under N.Y.
Crim. Proc. Law §100.10 for purposes of Shepard and therefore cannot be relied upon under the
modified categorical approach in regard to drug crime]. See also Pagayon v. Holder, 675 F.3d 1182,
1189-90 (9th Cir. 2012) [using petitioner’s pleading stage admission in removal proceeding regarding
his conviction to overcome ambiguity in Shepard documents between the indictment and the
conviction as to whether he was convicted of a controlled substance violation under Cal. Health &
Safety Code §11377(a)].
(11) Presentence Reports
(a) In General—A Presentence Report (PSR) or Probation Report may be “insufficient evidence to
establish that the defendant pleaded guilty to the elements of the generic definition of a crime when
the statute of conviction is broader than the generic definition.” Page 634 U.S. v. Corona-Sanchez,
291 F.3d 1201, 1212 (9th Cir. 2002) (en banc). See also Penuliar v. Mukasey, 528 F.3d 603, 611
(9th Cir. 2008) [rejecting IJ reliance on probation report to establish respondent pleaded guilty to
COV]; Conteh v. Gonzales, 461 F.3d 45, 57–59 (1st Cir. 2006) [cannot rely on respondent’s after-
the-fact statements or PSI report to establish record of conviction]; Dickson v. Ashcroft, 346 F.3d
44, 53 (2d Cir. 2003) [even if PSR was part of record, reliance on narrative statement of facts
contained in PSR was impermissible to establish aggravated felony]; Lara-Chacon v. Ashcroft, 345
F.3d 1148, 1151–54 (9th Cir. 2003) [under modified approach cannot use PSR to determine
conviction under AZ money laundering statute was a drug trafficking crime]; Chang v. INS, 307 F.3d
1185, 1191–92 (9th Cir. 2002) [PSR may not be used to establish an aggravated felony where to do
so would contradict the terms of the plea agreement]; Hernandez-Martinez v. Ashcroft, 343 F.3d
1075, 1076 (9th Cir. 2003) [following Corona-Sanchez]. But see Fuentes v. Lynch, 788 F.3d 1177
(9th Cir. 2015) [under circumstance specific approach post-Nijhawan, it was permissible to use
PSR to establish amount of laundered money under INA §101(a)(43)(D) in excess of $10,000];
Hamilton v. Holder, 584 F.3d 1284 (10th Cir. 2009) [post-Nijhawan finding that review of PSR was
permissible to establish loss in excess of $10,000 and therefore ineligibility for cancellation];
Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008) [can use PSR to establish amount of
loss for (M)(i) aggravated felony]; Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) [following Matter of
Babaisakovand reinterpreting its own precedent post–Brand X, the BIA can rely on the PSI report to
establish CIMT because “when deciding how to classify convictions under criteria that go beyond
the criminal charge–such as the amount of the victim’s loss, or whether the crime is one of ‘moral
turpitude’ the agency has discretion to consider evidence beyond the charging papers and
judgment of conviction”]; James v. Gonzales, 464 F.3d 505, 510–14 (5th Cir. 2006) [where
respondent pleaded guilty to one count of bank fraud resulting in $9,500 loss but restitution
exceeded $10,000, the court relied in part on the PSR to find an aggravated felony]; Matter of
Babaisakov, 24 I&N Dec. 306, 319–21 (BIA 2007) [under INA §101(a)(43)(M), the IJ may rely on
restitution orders, PSRs, and admissions during plea colloquies, as well as “any evidence,
otherwise admissible in removal proceedings, including witness testimony” and “testimonial
admissions of the respondent made during the removal hearing” to prove the loss exceeded
$10,000].
(b) There is also an issue of the circumstances under which a PSR may be used in an immigration
proceeding. U.S. v. Iqbal, 684 F.3d 507 (5th Cir. 2012) [not improper to use a redacted PSR in
immigration proceedings but noting that case law supports a presumption against nondisclosure by
government attorneys and only with a court order]
(12) Notations Regarding Special Sentencing Reasons or Factors—Evanson v. U.S. Att’y Gen., 550 F.3d
284, 292–93 (3d Cir. 2008) [cannot rely on respondent’s testimony before IJ or factual assertions in the
judgment of sentence under modified approach]; Larin-Ulloa v. Gonzales, 462 F.3d 456, 468–69 (5th
Cir. 2006) [BIA erroneously referred to a special sentencing factor notation in the Kansas journal entry
form to determine under the modified approach that respondent’s conviction was a COV].
(13) Notations on Guilty Pleas—Alvarado v. Holder, 759 F.3d 1121, 1132-33 (9th Cir. 2014) [over
respondent’s objection that he never agreed to statement attached to plea agreement four days after
the plea, it was sufficient to carry burden that respondent was convicted of attempted possession of
methamphetamine an aggravated felony].
(14) Vacated Convictions—For a discussion when a vacated conviction may still be used to establish a
conviction for immigration purposes, see in this chapter ¶ VI.A.11 (p.352), supra; see also in this
section “Burden of Proof,” ¶ 7.u (p.639), infra.
(15) Statements in a Brief Should Be Treated as Inconclusive—Huerta-Guevara v. Ashcroft, 321 F.3d

883, 888 (9th Cir. 2003) [respondent not removable as aggravated felon for possession ofstolen
vehicle under Ariz. Rev. Stat. §13-1802, where statute encompasses acts that do not require criminal
intent and concessions in respondent’s brief were not necessarily elements she pleaded guilty to].
Page 635
(16) Police/Arrest Reports—May not be used as a basis to determine eligibility for relief. Matter of
Arreguin, 21 I&N Dec. 38 (BIA 1995); Avila-Ramirez v. Holder, 764 F.3d 717, 721-25 (7th Cir. 2014)
[reversed denial of 212(c) where IJ gave significant weight to uncorroborated arrest reports after
finding respondent, who denied any wrongdoing, credible]; Billeke-Tolosa v. Ashcroft, 385 F.3d 708
(6th Cir. 2004) [IJ cannot look behind applicant’s conviction to deny AOS based on police report]. But
see Arias-Minaya v. Holder, 779 F.3d 49, 53-54 (1st Cir. 2015) [a hearsay-laden police report where no
conviction followed could still be used to deny voluntary departure]; Schroeck v. Gonzales, 429 F.3d
947 (10th Cir. 2005) [consideration of a dismissed criminal case did not violate double jeopardy or right
to due process by requiring respondent to prove his innocence]; Henry v. INS, 74 F.3d 1, 5–7 (1st Cir.
1996); Matter of N-A-M-, 24 I&N Dec. 336, 343–45 (BIA 2007) aff’d 587 F.3d 1052 (10th Cir. 2009)
[Statement in Support of Warrantless Arrest could be used with any other reliable information to deter
mine particularly serious crime]; Matter of Grijalva, 19 I&N Dec. 713 (BIA 1988) [permitting factfinder to
consider police report in determining weight of marijuana for purposes of waiver for 30 grams or less].
Police reports may also not be used as a basis to determine conviction. Matter of Teixeira, 21 I&N Dec.
316 (BIA 1996) [reversing deportability for firearms conviction based on police report, but suggesting
police report could be used as discretionary factor]; Matter of Sanudo, 23 I&N Dec. 968, 974–75 (BIA
2006) [where factual narrative of the police report was not incorporated into the charging document or
plea, it could not be considered in determining removability]; Wala v. Mukasey, 511 F.3d 102, 107–10
and n.5 (2d Cir. 2007) [relying on Shepard,the BIA may rely only on facts that the petitioner
“necessarily pleaded” and cannot rely on police report to establish that burglary with intent to commit
larceny was a CIMT]; See also Shepard v. U.S., 544 U.S. 13, 16 (2005) [sentencing court cannot look
to police reports in deciding whether a crime is a “generic burglary” for purposes of the Armed Career
Criminal Act]; Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012) [police report could not be relied upon
under Shepard to prove that petitioner’s conviction under Virginia Code §18.2-371 regarding
contributing to the delinquency of a minor was a CIMT]; Thomas v. U.S. Att’y Gen., 625 F.3d 134, 143-
48 (3d Cir. 2010) [a police report of a misdemeanor is not an indictment or information under N.Y.
Crim. Proc. Law §100.10 for purposes of Shepard and therefore cannot be relied upon under the
modified categorical approach in drug case]. But see U.S. v. Almazan-Becerra, 537 F.3d 1094, 1096–
1101 (9th Cir. 2008) [in sentencing for reentry after deportation, court could rely on police report to
prove underlying aggravated felony where defendant stipulated that the police report contained a
factual basis for his guilty plea]. See also Karimi v. Holder, 715 F.3d 561, 568-70 (4th Cir. 2013)
[although the court recognized that the police officer’s probable cause statement incorporated into the
charging document must be considered a Shepard approved document, its “one-sided” view of facts
did not trump the defendant’s plea colloquy]; Matter of H. Estrada, 26 I&N Dec. 749, 750-54 (BIA 2016)
[circumstance-specific approach, could use police report to establish domestic violence charge under
INA §237(a)(2)(E)(i)]. In a “reason to believe” case, police/arrest reports are to be given “little weight”
when not corroborated by other evidence. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1349-50 & n.13
(11th Cir. 2010) [quoting Fed. R. Evid. 803(8) advisory committee notes (police reports not reliable
because adversarial) as well as former 9 FAM 40.23 & n.2(c) (finding should not be based on
“conclusions of other evaluators … no matter how trustworthy”) and expressing “reliability concerns” as
to uncorroborated police reports]; Alphonsus v. Holder, 705 F.3d 1031, 1047 n.15 (9th Cir. 2013)
[questioning reliability of police report].
(17) Abstracts of Judgments—Duenas-Alvarez v. Holder, 733 F.3d 812, 814 (9th Cir. 2013) [relying on
U.S. v. Snellenberger, Cabantac v. Holder and U.S. v. Valdavinos-Torres, the court may rely on
abstract of judgment or minute order in applying modified categorical approach]; Cabantac v. Holder,
736 F.3d 787 (9th Cir. 2013) [used abstract of judgment in conjunction with count in criminal complaint
that respondent pleaded guilty to establish deportability]; Ramirez-Villalpando v. Holder, 645 F.3d 1035
(9th Cir. 2011) [abstract could be used because the crime described in it may be read as a summary of
the specific offense and not simply a recitation of the title of the statute].
(18) Rap Sheets—Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1087-88 (9th Cir. 2017) [rap sheet
alone is insufficient to establish a CIMT]; Antia-Perea v. Holder, 768 F.3d 647, 658-59 (7th Cir. 2014)
Page 636 [use of rap sheet to undermine I-213 came too late because it was raised at the relief phase
and not at the time removability was established]; Francis v. Gonzales, 442 F.3d 131, 141–45 (2d Cir.
2006) [after citing the regulatory history at 58 FR 38952, 38953 (July 21, 1993) and the AG’s Order No.
1764-93, court found that rap sheet/police report from Jamaica, while admissible, did not support
finding of a conviction under the Woodby standard even where there was some admission of guilt]. But
see Singh v. DHS, 517 F.3d 638, 643–46 (2d Cir. 2008) [DHS established by clear and convincing
evidence that petitioner was convicted of assault under N.Y. Penal Law §120.05(1) by upholding the
admission of a Conditions of Probation document, a Certificate of Disposition, and a post-conviction
rap sheet, which individually would be insufficient but in combination proved the conviction]; Rosales-
Pineda v. Gonzales, 452 F.3d 627 (7th Cir. 2006) [distinguishing Francis, relying on the broad
language of 8 CFR §1003.41(d) and finding that an FBI rap sheet, as distinguished from a foreign rap
sheet, could be used where there was other evidence and the issue was denial of discretionary relief,
not whether person was removable].
(19) Interview Statements Taken from Respondent or Any Other Person—IJ may receive in evidence
prior oral or written statements of the respondent or any other person during an investigation,
examination, hearing or trial. 8 CFR §1240.7(a). Prawira v. Gonzales, 405 F.3d 661, 663 (8th Cir.
2005) [IJ did not err in admitting asylum officer’s written notes and a status report on a pending
overseas investigation into the authenticity of documents]; Krasnopivtsev v. Ashcroft, 382 F.3d 832,
837–38 (8th Cir. 2004) [admitting referral assessment of asylum officer]; Ramsameachire v. Ashcroft,
357 F.3d 169, 179–83 (2d Cir. 2004) [where record of airport interview indicates its reliability it may be
used to challenge credibility]. However, such statements are subject to challenge concerning the
manner and circumstances under which they are taken and the language of the parties. Singh v.
Gonzales, 403 F.3d 1081 (9th Cir. 2005) [reversing IJ denial of asylum, withholding and CAT based on
adverse credibility assessment where there were perceived inconsistencies between asylum officer’s
Assessment to Refer and applicant’s testimony because assessment is unreliable in light of the fact
that it is only a short, conclusory written summary, there is no transcript, no indication of the language
used or whether an oath was administered, no record of questions and answers, no contemporaneous
notes, and no testimony of the asylum officer or the applicant]; Stoyanov v. INS, 172 F.3d 731 (9th Cir.
1999) [inconsistency between in-court testimony and application that lessens degree of persecution
does not support adverse credibility finding]; Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998)
[reversing adverse credibility finding where testimony differed from unreliable airport statement];
Senathirajah v. INS, 157 F.3d 210, 218–21 (3d Cir. 1998) [same]; Mulanga v. Ashcroft, 349 F.3d 123,
137 (3d Cir. 2003) [same]; Zubeda v. Ashcroft,333 F.3d 463, 476–77 (3d Cir. 2003) [challenging
adverse credibility finding based on contradiction between testimony and unreliable airport interview];
Singh v. INS, 292 F.3d 1017, 1020–24 (9th Cir. 2002) [airport interview lacked sufficient indicia of
reliability to draw adverse credibility finding]; Dia v. Ashcroft, 353 F.3d 228, 257–58 (3d Cir. 2003) (en
banc) [same]. No significant weight given to interview statement taken in English where English is
limited. Matter of H-, 21 I&N Dec. 337, 341 n.3 (BIA 1996). There is also a question as to whether the
admission of statements of “any other person” would be fundamentally unfair when they are not
subject to cross-examination. See in this section “Hearsay admissible,” ¶ (2) (p.621), supra. The
Second Circuit adopted a four-part test to determine reliability of interviews including: (1) whether the
record of the interview is verbatim or merely summarizes the person’s statements; (2) whether the
questions asked were designed to elicit details and whether the officer asked follow-up questions that
would aid in developing the account; (3) whether the applicant was reluctant to reveal information
because of prior interrogation or other coercive experiences in his or her home country; and (4)
whether answers to questions suggested applicant did not understand English or the translation was
not reliable. Ramsameachire, 357 F.3d at 180.
The danger in an IJ relying on airport interview transcripts as a basis to determine lack of credibility
was highlighted in a congressionally mandated study. See Keller, Rasmussen, Reeves, and Rosenfeld,
Evaluation of Credible Fear Referral in Expedited Removal At Ports of Entry in the United States,
Study on Asylum Seekers in Expedited Removal, As Authorized by Section 605 of the International
Religious Freedom Act of 1998 (Feb. 2005) Page 637 at p. 30 [“The lack of congruence between the
observations of our research assistants and the official records prepared by the investigating officers
(A-files) suggests that the asylum process itself may be compromised by the use of these documents
as official transcripts.… The safeguard against inaccurate A-file records, asking aliens to attest to the
accuracy of their statements, also appears inadequate as currently implemented”].
Where an IJ finds respondent credible but relies on an airport interview that contradicts the remainder
of respondent’s claim, the IJ’s decision may be challenged. Wu v. Ashcroft, 393 F.3d 418, 423–25 (3d
Cir. 2005) [remanding where IJ failed to explain why he relied on airport interview to contradict asylum
claim when he found respondent credible].
The IJ’s notes of the statement of an applicant at a bond hearing may not be used in the removal
proceedings to establish lack of credibility. Joseph v. Holder, 600 F.3d 1235, 1240-44 (9th Cir. 2010) [IJ
could not use her notes at bond hearing in removal proceedings to demonstrate lack of credibility but
noting the potential conflict between 8 CFR §1003.19(d) and 8 CFR §1240.7(a)].
Duress/Coercion in Admission—Challenges to confessions, statements or interviews on the grounds of

duress are difficult and require a prima facie case before the government will be required to respond.
Sehgal v. Lynch, 813 F.3d 1025, 1030-32 (7th Cir. 2016) [court rejected petitioner’s claim that his
confession to marriage fraud was coerced and under duress
(20) Asylum Applications—Information on the application filed with the Service may be used as a basis to
institute removal proceedings, satisfy the burden of proof of deportability, or as evidence in the
proceeding if filed after Jan. 4, 1995. 8 CFR §208.3(c)(1); 8 CFR §1240.7(a).
(21) Naturalization Certificates—Admissible in court under 8 USC §1443(e) or as hearsay under Fed. R.
Evid. 803(8).
(22) Foreign Law—The party relying on foreign law must plead and prove it. Matter of Soleimani, 20 I&N
Dec. 99 (BIA 1989); Matter of Kodwo, 24 I&N Dec. 479, 482 (BIA 2008); Menghesha v. Gonzales, 450
F.3d 142, 147 n.2 (4th Cir. 2006) [where government asserts asylum applicant will face prosecution not
persecution, it must plead and prove foreign law in regard to prosecution]. But see Sadeghi v. INS, 40
F.3d 1139, 1143 (10th Cir. 1994). The content of foreign law is a question of fact and may not be
decided by the BIA on appeal. Matter of A-G-G-, 25 I&N Dec. 486, 505 n.19 (BIA 2011). All foreign
language documents must be translated. 8 CFR §§103.2(b)(3), 1003.33. Ramaj v. Gonzales, 466 F.3d
520, 530 (6th Cir. 2006) [where translated documents did not contain a statement that the translator
was competent in Albanian and English, documents properly excluded]; Krasnopivtsev v. Ashcroft, 382
F.3d 832, 837–38 (8th Cir. 2004) [no IJ error in denying admission of untranslated foreign passport
without certification].
(23) Presumption of Regularity—The presumption of regularity presumes that public officers, in the
absence of clear evidence to the contrary, have properly discharged their official duties including
placing information on forms. U.S. v. Armstrong, 517 U.S. 456, 464 (1996); U.S. v. Chemical
Found.,272 U.S. 1, 14–15 (1926). But where a party identifies sufficient discrepancies in the
documents or process, the presumption is rebutted. U.S. v. Nunez-Garcia, 262 F.Supp.2d 1073, 1084
(C.D. Cal. 2003) [rejecting presumption of regularity regarding naturalization interview and denying
summary judgment to Service where it claimed naturalized citizen made a false statement at the
interview]. Moreover, the presumption goes to the government agent accurately accepting and
“transcribing” the information and not to the underlying truth of the information obtained. See e.g., Latif
v. Obama, 677 F.3d 1175, 1180-81 (D.C. Cir. 2012) [there is a presumption of regularity in government
intelligence reports for use in Guantanamo habeas hearings, but the presumption is only that the
government has accurately identified the source and taken down the information and not that the
information is true];
(24) Offer of Proof—IJ may accept an offer of proof particularly where testimony is not crucial. Morales v.
INS, 208 F.3d 323, 328 (1st Cir. 2000); Drobny v. INS, 947 F.2d 241, 245 (7th Cir. 1991) [mother’s
testimony at §212(c) hearing]. If IJ excludes evidence from the record, regulations allow respondent to
file a brief which then gets into the record. 8 CFR §1240.9. Page 638
(25) Classified Information—The applicant’s rights to examine or present evidence or cross-examine

witnesses does not entitle him “to examine such national security information the government may
proffer in opposition to the alien’s admission to the U.S. or to an application … for discretionary relief.”
INA §240(b)(4)(B), 8 USC §1229a(b)(4)(B). IJ may rely on undisclosed classified information in
rendering his decision on relief. 8 CFR §1208.11(c) [materials classified under Executive Order 12958
regarding asylum applicant]; 8 CFR §1240.11(a)(3) [classified evidence in removal proceedings
regarding AOS]; 8 CFR §1240.11(c)(3)(iv) [classified evidence in removal proceeding regarding
asylum/withholding]. The same is true for former deportation and exclusion proceedings. 8 CFR
§§1240.49(a), (c)(4)(iv) [deportation]; 8 CFR §1240.33(c)(4) [exclusion]. An applicant or petitioner may
also be unable to review classified records that include the record of proceedings, and the records of
other agencies in the possession of DHS or EOIR. 8 CFR §103.2(b)(16) [classified record of
proceedings]; 8 CFR §103.42 referencing 6 CFR pt. 5 [DHS records]; 8 CFR §103.42 referencing 6
CFR pt. 5 [records of other agencies in the possession of DHS that are classified]. Generally national
security information is classified by virtue of Executive Order 12958 (1995) as amended and 29 CFR
pt. 17. The immigration court has established detailed procedures on protecting confidential
information. Memo, Snow, Acting CIJ, EOIR, Operating Policies and Procedures Memorandum 09-01,
Classified Information in Immigration Court Proceedings (Feb. 5, 2009), AILA Doc. No. 09021271.
Generally, ICE counsel may request an in camera hearing before the IJ. The respondent will be
notified of the hearing but will not be given the identities or the agencies or witnesses providing the
information. The respondent, however, may move for a prehearing conference to consider matters
related to the classified information Memo, Snow, supra 12-13. The regulations provide that the IJ
cannot disclose the classified information to the respondent unless the classifying authority has agreed
“in writing to such disclosure.” 8 CFR §103.2(b)(16). The IJ may also inform the respondent of the
general nature of the information to allow the respondent the opportunity to provide opposing
evidence, if the IJ believes he can do so consistent with safeguarding the information and its source. 8
CFR §1240.11(a)(3).
However, the use of undisclosed, classified and confidential information may violate due process.
Kiareldeen v. Reno, 71 F.Supp.2d 402, 407–19 (D.N.J. 1999) [applying Mathews and finding due
process violation “even if the interest is deemed to be the unarguably weighty one of national
security”]; American-Arab Anti-Discrimination Comm. v. Reno, 883 F.Supp. 1365, 1376–78 (C.D. Cal.
1995). But see Jay v. Boyd, 351 U.S. 345 (1956) [upholding use of confidential information in
discretionary determination]; Kiareldeen v. Ashcroft, 273 F.3d 542, 552 (3d Cir. 2001) [involving
summaries of classified information]. Also, note that INA §240(b)(4)(B) only applies to challenges to
admission and for discretionary relief thus leaving the question of the use of such information for
deportation and nondiscretionary relief (e.g., withholding of removal) open. In removal proceedings for
admitted persons, a summary of classified information may be provided if the information and source
can be safeguarded. 8 CFR §1240.33(c)(4). Where the summary is inadequate or nonexistent,
however, the court will reverse. Kaur v. Holder, 561 F.3d 957, 959–62 (9th Cir. 2009) [reversing denial
of asylum based on a summary of evidence that was not meaningful because it did not provide the
petitioner with sufficient information to defend herself]. A court must be given access to “unexpurgated
copies of the Immigration Judge’s classified decision and all classified materials presented to the
Immigration Judge” so that it can “perform its statutory duty to review petitions from decisions of the
Board.” Singh v. INS, 328 F.3d 1205 (9th Cir. 2003) [ordering INS to produce documents in accordance
with DOJ procedures where IJ rested decision in part on inferences from classified information and the
BIA adopted the IJ’s factual findings].
(26) Information Under Seal/Protective Order—DOJ has established procedures before the IJ for the
submission of documents/information under seal with a protective order that, if disclosed would “harm
the national security … or law enforcement interests of the United States.” 8 CFR §1003.46. National
security is defined under INA §219(c)(2), 8 USC §1189(c)(2) to include “the national defense, foreign
relations, or economic interests of the Page 639 United States.” EOIR guidelines provide that only ICE
counsel is authorized to file a protective order and neither the respondent’s counsel, nor the IJ sua
sponte may file such a motion. Memo, Snow, Acting CIJ, EOIR, 09-02, Protective Orders and the
Sealing of Records in Immigration Proceedings (Feb. 9, 2009), at 3–4, AILA Doc. No. 09021272.
Respondent may file a response within 10 calendar days of service of the motion. 8 CFR §1003.46(b).
The IJ may not grant an extension beyond the 10 days. Memo, Snow, supra at 5. If the IJ finds that
disclosure would harm the national security or law enforcement interests of the U.S., he must enter the
order which must contain the consequences for violating it. The respondent may only appeal the grant
of the protective order in conjunction with an appeal of the final order; but ICE may file an interlocutory
appeal if the protective order is denied. 8 CFR §1003.46(e), (f)(4). If ICE appeals, the court shall
continue proceedings in increments of 60 days until the BIA decides the appeal. Memo, Snow supra at
7. Either party can file a motion to modify or vacate the protective order. 8 CFR §1003.46(f)(4). A
protective order, however, does not preclude respondent from challenging admissibility of the
information subject to the order. 8 CFR §1003.46(g).
If a protective order is granted those parts of the hearing related to it shall be closed to the public and
any submissions to the IJ, including briefs, referring to information subject to the protective order must
be filed under seal. 8 CFR §1003.46(h). Information filed under seal must be filed in person to the
attention of the court administrator and submitted by: (1) enclosing the information in a yellow, clasp-
file envelope (provided by the court administrator); (2) checking that the protective order has been
granted and the appropriate block which describes the enclosed documents; (3) preparing a transmittal
sheet addressed to the attention of the court administrator, and (4) filing the documents with the court
administrator. Memo, Snow, supra at 8.
If a respondent, his attorney or accredited representative discloses information in violation of the order
she becomes ineligible for “all forms of discretionary relief, except bond, unless the respondent fully
cooperates with the Service or other law enforcement agencies in any investigation relating to
noncompliance … and establishes by clear and convincing evidence either that extraordinary and
extremely unusual circumstances exist or that failure to comply … was beyond the control of the
respondent and his or her attorney or accredited representative.” 8 CFR §1003.46(i);Matter of R-S-H-,
23 I&N Dec. 629 (BIA 2003) [denying asylum, withholding and VD because of breach of protective
order where respondent and counsel cooperated in the investigation of the breach but did not show
extraordinary circumstances or that failure to comply was beyond their control]. The IJ must also refer
the matter to the Office of the General Counsel’s Bar Counsel unless the two exceptions apply. Memo,
Snow, supra at 9.
(27) Battered Spouse—Information obtained from a person who has battered a spouse or child cannot
be used to make an adverse determination of admissibility or deportability. IIRIRA §384; 8 USC §1367.
At least one court has allowed the use of information from a spouse who battered the alien to obtain a
conviction for a false I-9. U.S. v. Maswai, 419 F.3d 822 (8th Cir. 2005) [rejecting argument that 8 USC
§1367 prohibiting the use of information about a battered spouse in proceedings applies to a criminal
action under 18 USC §1546].
(28) Amnesty Applications—DHS cannot use information furnished pursuant to an amnesty application at
a removal hearing. 8 USC §1255a(c)(5)(A)–(B); 8 USC §1160(b)(6). Matter of Masri, 22 I&N Dec.
1145, 1152-53 (BIA 1999); In Perez v. INS, 72 F.3d 256 (2d Cir. 1995), the court found that INS could
use a notice of termination of temporary residency because the information was not furnished by
respondent. The confidentiality provisions are not triggered where the information is obtained from a
separate interview and not the application itself. Soriano-Vino v. Holder, 653 F.3d 1096, 1101 (9th Cir.
2011).
(29) Sequestration of Witnesses—At least one court in dicta has ruled that the Federal Rules of Evidence
do not bind the IJ in removal proceedings and therefore he was not required to sequester witnesses
and it was not an abuse of discretion to fail to do so. Podoprigora v. INS, 98 F.Supp.2d 75, 79–80 (D.
Mass. 2000). Page 640
(30) Evidence May Not Be Submitted After Close of Hearing—Where IJ has closed the hearing, a party
may not submit evidence except on a motion to reopen. 8 CFR §1003.31(c) [if application or document
is not filed within time set by IJ, it is waived]; Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir.
2004) [refusing to admit supplemental filing to asylum after record was closed]; Matter of Shanu, 23
I&N Dec. 754, 764–65 (BIA 2005) [upholding denial of cancellation as abandoned for failure to timely
file application]; Matter of A-K-, 24 I&N Dec. 275, 281 (BIA 2007), aff’d, Kane v. Holder, 581 F.3d 231
(5th Cir. 2009) [rejecting remand to IJ to apply for asylum because respondent declined opportunity to
apply at hearing and waived right to apply].
(31) Failure to Present Evidence Cannot Be Deemed Abandonment of Application—Where counsel fails
to present evidence with application as directed by the court, it was error for the IJ to deem application
abandoned. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010) [IJ erred in deeming NACARA
application abandoned instead of discounting requested evidence]; Casares-Castellon v. Holder, 603
F.3d 1111 (9th Cir. 2010) [IJ/BIA may not deem timely filed application abandoned under 8 CFR
§1003.31(c) where applicant failed to submit documents supporting his request for relief within the time
prescribed by the IJ]. But see Umezurike v. Holder, 610 F.3d 997, 1004-05 (7th Cir. 2010) [failure to
comply with deadlines for submission of evidence under 8 CFR §1003.31 was a sufficient basis to
permit IJ to deem asylum application abandoned]; Bropleh v. Gonzales, 428 F.3d 772, 778–79 (8th Cir.
2005) [IJ did not err in failing to rule on application where respondent declined to abandon AOS
application but counsel said he would not present any evidence].
(32) Negative Inference from Failure to Produce Evidence—Where a party withholds evidence, the court
may draw a negative inference that the evidence is adverse. Singh v. Gonzales, 491 F.3d 1019, 1023–
27 (9th Cir. 2007) [IJ could have drawn a negative inference as to asylum applicant’s credibility when
he failed to sign a waiver that would have produced his Canadian file, but could not simply draw a
negative inference that he was not entitled to asylum].
7.u. Burden of Proof
(1) In General—Traditionally, INS was required to prove deportability by “clear, unequivocal and
convincing evidence.” Woodby v. INS, 385 U.S. 276 (1966); Nijhawan v. Holder, 557 U.S. 29, 42
(2009) [burden in aggravated felony case is on government by clear and convincing evidence]; Ahmed
v. Lynch, 804 F.3d 237 (2d Cir. 2015) [reversed deportation where BIA applied REAL ID Act credibility
standards to proving deportability rather than limiting it to relief, and failed to consider conflicting
marriage certificates when determining fraud on entry]; Chavez-Alvarez v. U.S. Att’y Gen., 783 F.3d
478 (3d Cir. 2015) [Board reversed because there was insufficient proof that the 18-month general
sentence in the military was meant to apply to one of several convictions that was arguably an
aggravated felony]; Barakat v. Holder, 621 F.3d 398 (6th Cir. 2010) [once respondent shows conviction
was vacated the government has the burden to show the conviction remains valid for immigration
purposes]; Hassan v. Holder, 604 F.3d 915, 924-28 (6th Cir. 2010) [in case involving alleged marriage
before grant of IV under 2nd preference, the court reversed BIA under “clear and convincing evidence
standard” despite document from U.S. Embassy in Israel saying the MOI in Israel has a marriage
certificate “on file” where the certificate was not produced and could have simply been evidence of the
first step toward marriage under Islamic law rather than marriage itself]; Al Mutarreb v. Holder, 561 F.3d
1023, 1028–30 (9th Cir. 2009) [reversing in absentia order where there was no evidence in the record];
Pickering v. Gonzales, 465 F.3d 263, 269 n.4 (6th Cir. 2006) [reversing BIA precedent where DHS
failed to meet its burden by clear, unequivocal and convincing evidencethat vacated conviction was not
for a substantive or procedural reason]; Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1352–56 (11th
Cir. 2005) [reversing removal order where the government failed to prove respondent was an
aggravated felon under Woodby standard where statute of conviction was divisible]; Hernandez-
Guadarrama v. Ashcroft, 394 F.3d 674, 678–83 (9th Cir. 2005) [reversing removal because DHS failed
to prove alien smuggling under Woodby standard where limited evidence was not subject to cross-
examination and was insufficiently reliable]; Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) [reversing
deportation order based on questionable hearsay]; Gameros-Hernandez v. INS, 883 F.2d 839 (9th Cir.
1989); Page 641 8 CFR §1240.8(a). But see 8 USC §§1229a(c)(2)(B), (c)(3)(A); 8 CFR §1240.8(c);
H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. at 212 (1996)providing for a “clear and convincing”
standard. See also e.g., King v. Holder, 570 F.3d 785, 787 n.3 (6th Cir. 2009) [“unequivocal” language
was removed by statute]; Singh v. DHS, 517 F.3d 638, 643–46 (2d Cir. 2008) [DHS established by
clear and convincing evidence that petitioner was convicted of assault under N.Y. Penal Law
§120.05(1) by upholding the admission of a Conditions of Probation document, a Certificate of
Disposition, and a post-conviction rap sheet which individually would be insufficient but in combination
proved the conviction]. The differences between the “clear, unequivocal and convincing” standard and
the “clear and convincing” standard are unclear and the Woodby standard may be considered
constitutionally mandated. In Addington v. Texas, 441 U.S. 418, 432 (1979) the Court in a civil law
context stated: “The term ‘unequivocal’ taken by itself, means proof that admits of no doubt, a burden
approximating, if not exceeding, that used in criminal cases.” In Ward v. Holder, 733 F.3d 601 (6th Cir.
2013) the Court, held the Woodby standard is applicable to returning lawful permanent residents and
the “clear, unequivocal and convincing” standard is a higher standard than clear and convincing. The
Woodby standard has been applied to various elements of the deportability charge. See, e.g., Matter
of Patel, 19 I&N Dec. 774, 783 (BIA 1988) [recognizing that the “clear and convincing standard
imposes a lower burden than the clear, unequivocal, and convincing standard applied in deportation
and denaturalization proceedings because it does not require that the evidence be unequivocal or of
such a quality as to dispel all doubt”]; Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996) [where
document offered to prove firearms conviction does not specify that weapon was firearm, INS failed to
meet burden even where respondent testified he used a gun]; Matter of Tiwari, 19 I&N Dec. 875 (BIA
1989), modified Matter of Tiwari, 20 I&N Dec. 254 (BIA 1991) [under former INA §241(a)(13) had to
prove “for gain” by Woodby standard]; Bigler v. U.S. Att’y Gen., 451 F.3d 728, 732–33 (11th Cir. 2006)
[government must prove that respondent abandoned his residency by clear and convincing evidence];
Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128–29 (10th Cir. 2005) [DHS did not prove by clear and
convincing evidence that reduced felony conviction was an aggravated felony]; Sandoval v. INS, 240
F.3d 577, 581–82 (7th Cir. 2001) [reversing deportation order where IJ improperly placed burden on
respondent to prove vacatur]. But see Mondaca-Vega v. Holder, 808F.3d 413 (9th Cir. 2015) (en banc)
[equating the clear and convincing standard with the clear, unequivocal, and convincing standard in a
review of a citizenship claim pursuant to INA §242(b)(5)(B)]. Despite the Woodby standard, a
respondent may be required to go forward with evidence to rebut the government’s prima facie case in
certain circumstances. Matter of Vivas, 16 I&N Dec. 68 (BIA 1977) [although burden of proof remains
with the government, the burden of going forward falls on respondent when the facts are within his
particular knowledge and control and the government has made a prima facie case]. However, DHS
cannot establish its prima facie case solely through inference drawn by the respondent’s Fifth
Amendment assertion of silence. Matter of Guevara, 20 I&N Dec. 238 (BIA 1991). Nor can it establish
deportability by admission of the respondent where the admission was not transcribed but merely
noted several months after a master calendar hearing. Cortez-Acosta v. INS, 234 F.3d 476 (9th Cir.
2000) [where IJ did not make a verbatim transcript of the master calendar where the respondent
allegedly admitted alien smuggling, but simply noted it in the file 5 months after the hearing, his
notation is evidence but not a finding of fact and it alone is insufficient to meet the Woodby standard]. If
the respondent denies the allegations, the DHS may not establish alienage by simply putting the
respondent on the witness stand. The DHS must first put sufficient evidence in the record of alienage.
Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971) [“Upon presenting evidence that the respondent is an
alien, the Service may call upon him to testify and may use his testimony to find that deportability is
established”]; 8 CFR §§1240.10(c) & (d). On issues concerning alienage the burden remains always
on DHS because “it is jurisdictional matter.” Murphy v. INS, 54 F.3d at 608–09 (9th Cir. 1995).
However, admission of foreign birth proves alienage and shifts burden to alien to prove time, place and
manner of entry. Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).
After proof of alienage, respondent must by statute prove time, place, and manner of entry. INA §291.
Presumption under INA §291, applicable to deportation charges only where Page 642 time, place and
manner at issue. Matter of Benitez, supra. [INA §241(a)(1) charge as stowaway under INA §212(a)
(18)]. But see Iran v. INS, 656 F.2d 469 (9th Cir. 1981) [presumption inapplicable to overstay cases].
(2) Burden of Proof Under IIRIRA for Persons Not Admitted or Paroled (EWI)—Under IIRIRA, the burden
of proof is altered for persons who are charged with EWI. 8 CFR §1240.8(c). DHS must first establish
alienage. If alienage is established, the applicant must establish by clear and convincing evidence that
he is lawfully present in the U.S. pursuant to a prior lawful admission, or he must prove that he is
clearly and beyond a doubt, entitled to be admitted to the U.S., and is not inadmissible as charged. If
the burden is met, DHS then has the burden to establish by “clear and convincing evidence” that the
person is deportable. INA §§240(c)(2)(B), (c)(3)(A), 8 USC §§1229a(c)(2)(B), (c)(3)(A); 8 CFR
§1240.8(c); H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. at 212 (1996). For burden of proof in
cases concerning admission, see in this chapter ¶ IV.O.4.c (p.253), supra.
(3) Access to Visa Documents in Meeting Burden—In meeting the burden of proof respondent “shall
have access to [her] visa or other entry document, if any, and any other records and documents not
considered by the [AG] to be confidential pertaining to [her] admission or presence in the United
States.” INA §240(c)(2).
(4) Citizenship Cases—A respondent who claims citizenship must prove by a preponderance of the
evidence that she possess U.S. citizenship. 8 CFR §1235.1(b); Nadal-Ginard v. Holder, 558 F.3d 61,
66 (1st Cir. 2009) [neither IJ, nor BIA erred in determining that regulations placed burden on applicant
for admission to prove USC]; Leal Santos v. Mukasey, 516 F.3d 1, 4 (1st Cir. 2008) [once DHS
establishes respondent was born abroad, burden shifts to her to prove derivative citizenship]; Matter of
Tijerina-Villarreal, 13 I&N Dec. 327, 330–31 (BIA 1969).
(5) Cases Involving Criminal Conduct
(a) Admission by Respondent Regarding Criminal Conduct—For those grounds of deportability that
require a conviction, an admission as to conduct by a respondent is not sufficient to establish
deportability under Woodby because the IJ must limit his inquiry to the record of conviction. Matter
of Pichardo, 21 I&N Dec. 330 (BIA 1996) [rejecting use of respondent’s admission that he used a
gun in weapons conviction to establish deportability under Woodby, where record of conviction did
not specify weapon]; Cervantes v. Holder, 772 F.3d 583, 587-89 (9th Cir. 2014) [although Cal. Pen.
Code §273.5(a) for willfully inflicting corporal injury on a spouse or cohabitant may, under the
modified categorical approach, be a CIMT, the IJ could not rely on the respondent’s description of
the victim on the stand because it went beyond the appropriate documents]. But see Pagayon v.
Holder, 675 F.3d 1182, 1189-90 (9th Cir. 2012) [using petitioner’s pleading stage admission in
removal proceeding regarding his conviction to overcome ambiguity in Shepard documents
between the indictment and the conviction as to whether he was convicted of a controlled
substance violation under Cal. Health & Safety Code §11377(a)]; Perez-Mejia v. Holder, 663 F.3d
403, 409-17 (9th Cir. 2011)[concessions and admissions by respondent or his counsel at the
pleading stage are binding, 8 CFR §1240.10(c) unless material issues remain in dispute or the IJ is
not satisfied in which case the matter moves to the evidentiary stage under 8 CFR §1240.10(d)];
Lara-Ruiz v. INS, 241 F.3d 934, 941 (7th Cir. 2001) [not improper for BIA to look beyond conviction
record to determine that sexual assault was committed against a 4-year-old where no evidentiary
hearing was required].
(b) Vacated Convictions—See in this chapter “Vacated Conviction May Not be a Conviction,” ¶
VI.A.11 (p.352),and “Burden of Proof,” ¶ VI.A.11.c (p.354), supra.
(c) Aggravated Felony Standard for Summary Removal—An aggravated felon shall be conclusively
presumed to be deportable, INA §238(c), and the Woodby standard is inapplicable in summary
proceedings.
(d) Post-Padilla—The elements the government must prove to establish that a person has been
convicted of a removable offense do not include proof that the underlying conviction was not a
violation of the Sixth Amendment. Waugh v. Holder, 642 F.3d 1279 (10th Cir. 2011) Page 643
[rejected collateral challenge in removal proceeding to conviction on Padilla grounds where
government must prove that the conviction did not violate the Sixth Amendment in removal
proceedings].
(6) Cases Involving Conditional Residency—Where conditional residence is terminated because AG

made an adverse determination on the petition, the alien may request a review at his deportation
hearing. The AG has the burden of proof to establish by a preponderance of the evidence that the
facts and information described in the petition are not true with respect to the marriage. INA §216(c)(3)
(D), 8 USC §1186a(c)(3)(D).
(7) Burden and Standard of Proof in Seeking Relief from Removal—Sec. 101(d) of the REAL ID Act of
2005, PL 109-13 (May 11, 2005) amended INA §240(c) for applications for relief filed on or after May
11, 2005 to clarify that the applicant for relief or protection from removal has the burden to establish
that he or she: (i) satisfies the applicable eligibility requirements; and (ii) merits a favorable exercise of
discretion (where relevant). INA §240(c)(4)(A). The applicant must comply with the information or
documentary requirements specified by law, regulation and application instructions. IJ must weigh
credible testimony along with other evidence and can require corroboration unless the applicant does
not have the evidence and cannot reasonably obtain it. INA §240(c)(4)(B). Credibility determinations
will be made under the same totality of the circumstances test as asylum under INA §208(b)(1)(B)(iii)
as well as the same method of determining credibility under that section. INA §240(c)(4)(C). Boadi v.
Holder, 706 F.3d 854, 860 (7th Cir. 2013) [in good-faith marriage waiver case IJ was under no
obligation to consider certain factors in determining credibility such as demeanor, evasiveness or
internal consistency]. The burden of proof to establish eligibility and to establish the privilege of the
relief is on the applicant even for applications filed before May 11, 2005. 8 CFR §1240.8(d),
1240.11(e). When the applicant seeks relief such as cancellation, the burden shifts to the applicant to
prove by a preponderance of the evidence that he has not committed an aggravated felony or another
disqualifying act once “the evidence indicates” (i.e., once the government presents) a mandatory
ground of denial. 8 CFR §1240.8(d). The BIA has equated “evidence indicates” test in 8 CFR
§1240.8(d) with establishing a prima facie case. Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)
[requiring DHS to establish prima facie case of “firm resettlement” to bar asylum]; Matter of Almanza-
Arenas, 24 I&N Dec. 771 (BIA 2009) [REAL ID Act burden applies where request for relief was filed
after May 11, 2005 even if NTA was issued before and a post–REAL ID Act applicant for cancellation
has the burden to prove that offense under divisible statute is not a CIMT under approach set forth in
former decision in Matter of Silva-Trevino]. Reversing Almanza-Arenas, a panel of the Ninth Circuit en
banc ruled that Moncrieffe abrogated the reasoning in Young and the Board’s reasoning in Almanza,
but the en banc court, in reversing the Board, resolved the case on other grounds. Almanza-Arenas v.
Holder, 771 F.3d 1184 (9th Cir.) reh’g en banc granted, 785 F.3d 366 (9th Cir.), amended and
superseded, 815 F.3d 469 (9th Cir. 2015, amended 2016) (en banc). See also Maric v. Sessions, 854
F.3d 520 (8th Cir. 2017) [applicant failed to meet his burden of demonstrating that he was not ineligible
for INA §237(a)(1)(H) waiver due to his alleged participation in genocide as a member of the VRS
Army for the Serbs at the time of Srebrenica which he was unable to overcome]; Le v. Lynch, 819 F.3d
98, 104-10 (5th Cir. 2016) [where respondent was pardoned for multiple convictions, a secondary
inspection worksheet reflected he had a conviction for drug possession and an RCMP document
existed indicating a conviction, the burden was on respondent to prove his drug conviction did not bar
his AOS]; Vasquez-Martinez v. Holder, 564 F.3d 712, 715–17 (5th Cir. 2009) [the burden of
demonstrating that petitioner is not ineligible for cancellation as an aggravated felon rests with
petitioner not the government]. Aslam v. Mukasey, 537 F.3d 110, 115–17 (2d Cir. 2008) [where
respondent applies for AOS and the government raised the issue that his first marriage was fraudulent,
respondent was required to prove that the marriage was not fraudulent because he would otherwise be
inadmissible and ineligible for AOS]. An inconclusive record does not meet respondent’s burden of
proof. Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) [California’s conspiracy statute, Cal.
Penal Code §182(a)(1) was both overbroad and divisible and under the modified categorical approach
it was unclear whether respondent’s conviction was based upon transportation of a scheduled drug;
nevertheless the burden was on Page 644 respondent to prove on an inconclusive record that her
conviction was not a drug conviction barring eligibility for cancellation]; Young v. Holder, 697 F.3d 976,
988-91 (9th Cir. 2012) (en banc) [an inconclusive record does not satisfy respondent’s burden to
demonstrate that conviction is not aggravated felony]; Salem v. Holder, 647 F.3d 111, 115-16 (4th Cir.
2011);[same]; Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) [where the record is inconclusive under
the modified categorical approach regarding whether third degree assault under Colorado law is a
CIMT, theapplicant failed to meet his burden and is therefore ineligible for cancellation, TPS, and VD].
But see Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016) [rejecting Almanza-Arenas and holding that a
respondent satisfies burden where record is inconclusive]; Thomas v. U.S. Att’y Gen., 625 F.3d 134,
148 (3d Cir. 2010) [inconclusive record sufficient to meet burden]; Martinez v. Mukasey, 551 F.3d 113
(2d Cir. 2008) [same]. For a further discussion, see “Criminal and Other Conduct Affecting
Discretionary Cases,” Chapter 8, Section I.J (p.1624), infra.
(a) Mandatory Denials Involving Discretionary Relief from Removal—According to the BIA, an
applicant for relief bears the burden, by a preponderance of the evidence, under 8 CFR §1240.8(d)
to prove that a mandatory ground of denial does not apply to deny that relief where the government
has provided some evidence for a reasonable factfinder to conclude that a mandatory ground of
denial such as INA §237(a)(4)(D) or INA §§208(b)(2)(A)(I)(i), 241(b)(3)(B)(i) applies. Matter of M-B-
C-, 27 I&N Dec. 31 (BIA 2017) [applicant denied INA §237(a)(1)(H) waiver, asylum, and withholding
because he failed to offer any evidence to rebut the government’s expert testimony that raised
“some,” but not direct, evidence that he engaged in extrajudicial killings and genocide as a member
of the Army of the Republic of Srpska (VRS) during the Bosnian war]; Pastora v. Holder, 737 F.3d
902 (4th Cir. 2013) [where evidence was sufficient to indicate that persecutor bar applied to El
Salvadoran seeking NACARA suspension, burden shifted to applicant by a preponderance of the
evidence that he did not assist or otherwise participate in persecution].
(8) Rule of Lenity and Rule Granting Presumption to Alien—Deportation statutes must be narrowly
construed in favor of aliens. Moncrieffe v. Holder, 569 U.S. 184, 205 (2013) [“And we err on the side of
underinclusiveness because ambiguity in criminal statutes referenced by the INA must be construed in
the noncitizen’s favor”]; Carachuri-Rosendo v. Holder, 560 U.S. 563, 581 (2010) [in determining that
two possession charges are not an aggravated felony conviction under a hypothetical recidivist theory,
the Court following Leocal held that “ambiguities in criminal statutes referenced in immigration laws
should be construed in the noncitizen’s favor”]; Leocal v. Ashcroft, 543 U.S. 1 (2004) [applying rule of
lenity as an alternative basis in interpreting why negligent acts would not constitute a COV/aggravated
felony under 18 USC §16]; INS v. St. Cyr, 533 U.S. 289, 320 (2001) [recognizing rule of lenity and “the
longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the
alien”]; Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) [matters of doubt should be resolved in favor of the
alien]; INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); INS v. Errico, 385 U.S. 214, 225 (1966)
[applying rule to provisions relating to relief]; Rosenberg v. Fleuti, 374 U.S. 449, 459 (1963); Bonetti v.
Rogers, 356 U.S. 691, 699 (1958); Barber v. Gonzalez, 347 U.S. 637, 642–43 (1954); U.S. v. Ashurov,
726 F.3d 395 (2d Cir. 2013) [applying the Rule of Lenity to 18 USC §1546(a) the court reversed a
conviction for knowingly presenting an I-20 that contained false statements because it was not made
under oath]; U.S. v. Canelas-Amador, 837 F.3d 668 (6th Cir. 2016) [applying the Rule of Lenity to
decide that the INA definition of conviction under INA §101(a)(48)(A) was applicable to Sentencing
Guidelines rather than USSG §4A1.2(a)(4)]; Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1367 and n.4
(11th Cir. 2011) [defining admission to preclude post-entry AOS to LPR status favors principle that
ambiguities in deportation statutes should be construed in favor of the noncitizen]; Van Don Nguyen v.
Holder, 571 F.3d 524 (6th Cir. 2009) [applying rule of lenity, auto theft under Cal. Penal Code §487 is
not a COV]; Martinez v. Mukasey, 519 F.3d 532, 542–45 (5th Cir. 2008) [under first Chevron prong and
longstanding principles construing statutes in favor of persons facing removal, the term “admitted” as
used in INA §212(h) does not bar LPRs who were convicted of aggravated felonies from obtaining
relief if they obtained LPR status through AOS because they were not “admitted”]; Esponda v. U.S.
Att’y Gen., 453 F.3d 1319, 1322 (11th Cir. 2006) Page 645 [the “longstanding principle” that
deportation laws should be construed in favor of the alien barred summary dismissal of BIA appeal for
failure to file a brief where another regulation provided that notice of appeal might be sufficient];
Francis v. Reno, 269 F.3d 162, 170–71 (3d Cir. 2001) [applying rule of lenity to narrow interpretation of
aggravated felony]; Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975); Castillo v. ICE Field Office
Director, 907 F.Supp.2d 1235 (W.D. Wash. 2012) [applying rule of lenity to the “when released”
language in the mandatory detention statute when respondent was reincarcerated after 10 years];
Martin v. Gantner, 443 F.Supp.2d 367, 373 (E.D.N.Y. 2006) [in naturalization, court resolved
interpretation of conviction as not being an aggravated felon because doubts are resolved in favor of
the alien]; Pottinger v. Reno, 51 F.Supp.2d 349, 363 (E.D.N.Y. 1999), aff’d, 242 F.3d 367 (2d Cir. 2000)
[applying rule of lenity in conjunction with Landgraf analysis]; Homayun v. Cravener, 39 F.Supp.2d 837,
850 (S.D. Tex. 1999); Matter of Tiwari, 19 I&N Dec. 875 (BIA 1989); Matter of Hou, 20 I&N Dec. 513,
520 (BIA 1992); Matter of Chartier, 16 I&N Dec. 284, 287 (BIA 1977); Matter of G-, 9 I&N Dec. 159,
164 (AG 1961). Similarly, where the immigration statutes are ameliorative doubts should be resolved in
favor of aliens. Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003) [in VAWA context, “the
general rule of construction that when the legislature enacts an ameliorative rule designed to forestall
harsh results, the rule will be interpreted and applied in an ameliorative fashion.… This is particularly
so in the immigration context where doubts are to be resolved in favor of the alien”]; U.S. v. Sanchez-
Guzman, 744 F.Supp. 997, 1002 (E.D. Wash. 1990).
But the rule of lenity may be in tension with Chevron deference in the view of some courts and does
not apply where: (1) the plain meaning of the statute precludes petitioner’s interpretation, Puello v.
BCIS, 511 F.3d 324, 334 (2d Cir. 2007) [in defining conviction, the plain language of the statute
requires that a judgment be entered and therefore rule of lenity inapplicable]; (2) the BIA’s
interpretation is reasonable and entitled to Chevron deference, Ljutica v. Holder, 588 F.3d 119, 125 (2d
Cir. 2009) [the determination that attempted bank fraud under 18 USC §1344 is covered by subsection
“U” regarding aggravated felony attempts is reasonable and entitled to Chevron deference]; (3)
Congress’s intent is unambiguous. Adams v. Holder, 692 F.3d 91, 107 (2d Cir. 2012); (4) a construction
of the statute may be articulated that is more narrow than that urged by the government, Soto-
Hernandez v. Holder, 729 F.3d 1, 5-6 (1st Cir. 2013) [rule applies only to criminal matters but if it does
apply it is inapplicable simply because statute read more narrowly]; (5) traditional rules of statutory
construction are able to resolve the ambiguity. U.S. v. Martinez-Gonzalez, 663 F.3d 1305, 1309 (11th
Cir. 2011) [only after seizing every aid and being unsuccessful in identifying Congress’s intent would
the rule of lenity apply]; Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198–99 (2d Cir. 2007) [rule of lenity
cannot be applied whenever there is an ambiguity in a statute or Chevron deference would be
meaningless; it is only applied when other cannons of statutory construction are not capable of
resolving the statute’s meaning and the BIA has not offered a reasonable interpretation]; Spina v. DHS,
470 F.3d 116, 129–30 (2d Cir. 2006) [where traditional rules of statutory construction permit the court
to conclude the statute is not ambiguous, the rule does not apply]; or (6) there is an ambiguity but it is
not a “grievous ambiguity.” Espinal-Andrades v. Holder, 777 F.3d 163, 169-70 (4th Cir. 2015) [applying
Step 2 of Chevron to Matter of Bautista and finding Maryland’s arson-in-the-first degree statute is an
aggravated felony without reference to an interstate component because there was no “grievous
ambiguity or uncertainty in the statute”]; Hosh v. Lucero, 680 F.3d 375, 383-84 (4th Cir. 2012) [applying
Step 2 of Chevron to Matter of Rojas and finding it was not a grievous ambiguity requiring the rule].
See also “Deportation Statutes” in Chapter 10, Section IX.C (p.1986), infra.
(9) Complexity of Immigration Law—Courts have also repeatedly recognized the complexity of
immigration laws as having an effect on persons in immigration proceedings. See Chapter 10, Section
IX.D (p.1987), infra.
(10) Review of IJ’s Finding is under the “Substantial Evidence” Test—8 USC §1252(b)(4)(B). Thiam v.
Gonzales, 496 F.3d 912 (8th Cir. 2007) [substantial evidence supported EWI charge where
respondent’s passport indicated she left the country while she insisted and provided some proof she
did not]; Dia v. Ashcroft, 353 F.3d 228, 248–61 (3d Cir. 2003) (en banc) [finding Page 646 §242(b)(4)
(B) codified Elias-Zacarias thereby maintaining the traditional substantial evidence standard and
reversing IJ’s credibility finding]. But see Castaneda-Castillo v. Gonzales, 488 F.3d 17, 22–26 (1st Cir.
2007) (en banc) [reversing adverse-credibility determination and noting that INA §242(b)(4)(B)
regarding reversal only if evidence “compels” reversal, reflects a “gloss by the Supreme Court” and
does not “eliminate[ ] the conventional requirement that an administrative agency’s explanation be
rational”].
Judicial review of Woodby standard under the substantial-evidence test is in dispute. Compare
Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc)[affirming the use of a City Court of
Atlanta document that contained several ambiguities to establish deportability for a firearms offense by
clear and convincing evidence because under the substantial-evidence test, the court “must affirm the
agency’s decision unless there is no reasonable basis for that decision”] with Francis v. Gonzales, 442
F.3d 131, 138–39 (2d Cir. 2006) [joining the 6th and 9th Circuits, substantial-evidence test required
reversal where the government did not establish deportability by clear and convincing evidence (i.e.,
“any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear
and convincing evidence”) and not as the Eleventh Circuit found that reversible error occurs only
where there is no reasonable basis for the decision]. But see also Bigler v. U.S. Att’y Gen., 451 F.3d
728, 732–33 (11th Cir. 2006) [substantial-evidence test used to establish the government presented
clear and convincing evidence that respondent abandoned LPR status].
7.v. Interpretation [ 8 CFR §1240.5]
(1) Generally—A person who does not understand English who is in proceedings has a right to
translation as part of the right to present evidence and cross-examine witnesses. U.S. v. Lopez-
Collazo, 824 F.3d 453, 460-62 (4th Cir. 2016) [respondent in INA §238(b) expedited removal
proceeding who did not speak or understand English was deprived of due process when he was
issued an I-851 Notice of Intent to Issue Final Administrative Removal Order solely in English,
although no prejudice was demonstrated]; Nadmid v. Holder, 784 F.3d 357, 360-61 (7th Cir. 2015)
[adverse credibility finding based upon inconsistencies between airport interview conducted in Russian
of Mongolian businessman and other statements and testimony was flawed because applicant did not
speak Russian well and translation was obviously incoherent]; Marouf v. Lynch, 811 F.3d 174, 182-84
(6th Cir. 2016) [reversed BIA lack of credibility assessment of stateless Christian Palestinian where it
was the result of poor translation]; Ilunga v. Holder, 777 F.3d 199, 208-10 (4th Cir. 2015) [reversing
IJ/BIA credibility determination based upon faulty translation and noting “red flags” during testimony
including failure to translate, repeated disconnect between questions and answers, 16 instances where
respondent did not understand the question, attorney pointing out mistranslations, 11 times where
interpreter needed to repeat the question, frequent grammatical errors and questionable word
choices]; Ememe v. Ashcroft, 358 F.3d 446 (7th Cir. 2004) [where IJ made adverse credibility finding
based on statements at credible fear interview conducted in Italian and person’s native language was
Amharic, case remanded to determine whether she comprehended questions]; Amadou v. INS, 226
F.3d 724 (6th Cir. 2000) [applicant for asylum deprived of right to a full and fair hearing because of
incompetent translation]; Abovian v. INS, 219 F.3d 972, 979, 980 (9th Cir. 2000) [adverse-credibility
determination that may have been based on faulty interpretation reversed]. See also Issiaka v. U.S.
Att’y Gen., 569 F.3d 135, 141–43 (3d Cir. 2009) [where poor quality of translation undermined the
evidence upon which the adverse-credibility determination was based, the court remanded and
directed the government to obtain a new translator]; Drobny v. INS, 947 F.2d 241, 244 (7th Cir. 1991)
[§212(c) proceeding]; Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555 (11th Cir. 1989), aff’d, 498
U.S. 479 (1991) [constitutional right to translation at SAW interviews]; Marincas v. Lewis, 92 F.3d 195,
204 (3d Cir. 1996) [stowaway asylum applicants have right to translator]; Montecino v. INS, 915 F.2d
518, 521 (9th Cir. 1990); Augustin v. Sava, 735 F.2d 32 (2d Cir. 1984) [exclusion/asylum proceeding];
Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980); Bajrami v. Greene, No. 94-S-1783 (D. Colo.
June 2, 1995) (Sparr, J.). Limiting access to competent translation is also a violation of Title VI of the
Civil Right Act of 1964. Letter, Perez, Asst. Att’y Gen. for Civil Rights Division, DOJ, Letter to Chief
Justices and Administrators of State Court (Aug. 17, 2010), Page 647 reprinted in 87 No. 32 Interpreter
Releases 1680-84 (Aug. 23, 2010).
But see Matias v. Sessions, 871 F.3d 65, 71-72 (1st Cir. 2017) [no due process violation for
mistranslation of Todos Santos Mam in Guatemalans’ case absent a showing that a more accurate
interpretation would likely have made a dispositive difference in the outcome]; Xin Yang v. Holder, 747
F.3d 993 (8th Cir. 2014) [due process not violated because translation was not incompetent and IJ
carefully addressed each objection to insure no mistranslation]; Singh v. Holder, 699 F.3d 321, 335-36
(4th Cir. 2012) [no prejudice where petitioner could not point to a single instance where deficiencies in
the translation from Punjabi changed the testimony]; Zheng v. Holder, 698 F.3d 710, 714-15 (8th Cir.
2013) [no prejudice demonstrated from interpreter’s failure to be present at first hearing because
respondent’s counsel was present and the transcript did not demonstrate unqualified interpretation at
later hearing]; Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548-49 (11th Cir. 2011) [respondent in removal
proceedings not denied due process where interpreter was not present for half of one hearing where
she testified and not present at the next hearing because there was no showing of prejudice]; Wang v.
Holder, 569 F.3d 531, 539 (5th Cir. 2009) [where asylum applicant’s lack of credibility may have been
due to difficulties in the translation but the evidence was inconsistent “in choosing between the two
possibilities—truthful difficulties and feigned difficulties—we have no basis to set aside the IJ’s
conclusions”]; Sok v. Mukasey, 541 F.3d 43, 47 (1st Cir. 2008) [no due process violation where
Cambodian petitioner did not object at hearing and failed to show prejudice]; Teng v. Mukasey, 516
F.3d 12, 17–18 (1st Cir. 2008) [no due process violation where petitioner failed to point to any specific
part of his testimony that was mistranslated]; Mohamed v. Gonzales, 477 F.3d 522, 527 (8th Cir. 2006)
[failure to translate Somali word for schizophrenia but numerous references in record to petitioner’s
mental illness does not support due process violation because no prejudice]; Gishta v. Gonzales, 404
F.3d 972, 978–80 (6th Cir. 2005) [denying due process challenge where there were only isolated
examples of mistranslation, where improper interpretation was not raised before IJ, and no showing of
prejudice]; Kuqo v. Ashcroft, 391 F.3d 856, 858-59 (7th Cir. 2004) [where respondent failed to
demonstrate the translation was flawed or that he was prejudiced, no due process violation where
translation of respondent’s testimony was in a different Albanian dialect]; Khan v. Ashcroft, 374 F.3d
825 (9th Cir. 2004) [upholding denial of motion to reopen in absentia hearing to seek asylum, where
petitioner attended master calendar, did not show up for continued hearing, and claimed due process
violation because master calendar hearing was not translated]; Abdullah v. INS, 184 F.3d 158, 164–66
(2d Cir. 1999) [distinguishing and disagreeing with HRC v. Nelson, 872 F.2d 1555 (11th Cir. 1989) and
finding no procedural due process right under Mathews v. Eldridge to translation where person seeking
a benefit in SAW context]. Where statements are written in a language a witness cannot understand,
they are not admissible absent corroboration. Hernandez-Garza v. INS, 882 F.2d 945, 948 (5th Cir.
1989). But there is no requirement that documents be translated into the noncitizen’s foreign language.
Matter of D-R-, 25 I&N Dec. 445, 458 n.10 (BIA 2011) [documents are not inadmissible because they
have not been translated into respondent’s language]. There is, however, an absolute right to
competent translation. Matter of Tomas, 19 I&N Dec. 464 (BIA 1987). In evaluating incompetent
translation claims, there are 3 kinds: (1) direct evidence of incorrectly translated words; (2)
unresponsive answers by the witness; or (3) witness’s expression of difficulty understanding the
translator. Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000) [due process violation for failure to
properly translate because “an incorrect or incomplete translation is the functional equivalent of no
translation”]; Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007) [due process violation where there was
evidence of mistranslated words, the witness was unable to understand the translator, and there were
unresponsive answers from the witness]. In the view of the BIA and some courts, the respondent must
show prejudice, i.e., that a better translation would have made a difference in the outcome of the
hearing. Matter of D-R-, 25 I&N Dec. 445, 461-62 (BIA 2011) [respondent failed to demonstrate how a
better translation would have affected the outcome of the hearing]; Meas v. Ashcroft, 363 F.3d 729,
730 (8th Cir. 2004) [petitioner failed to demonstrate how alleged deficiencies of the translator
prejudiced her case]; Gutierrez-Chavez v. INS, 298 F.3d 824, 830 (9th Cir. 2002), amended on denial
of reh’g, 337 F.3d 1023 (9th Cir. 2003) [for due process violation Page 648 must demonstrate a better
translation likely would have made a difference in the outcome]; Hadjimehdigholi v. INS, 49 F.3d 642,
649–50 (10th Cir. 1995); Perez-Lastor v. INS, 208 F.3d 773, 780–81 & n.8 (9th Cir. 2000). The burden
is on the noncitizen to clearly raise the issue of faulty translation. Singh v. Ashcroft, 367 F.3d 1139,
1143–44 (9th Cir. 2004) [although sharing the dissent’s concern regarding poor translation, affirming
the denial of asylum for lack of credibility because the “dissatisfied party bears the burden of ensuring
the translations and their transcription are correct”]. There is no per se right to simultaneous
interpretation of the entire proceedings. Matter of Exilus, 18 I&N Dec. 276 (BIA 1982); El Rescate
Legal Servs., Inc. v. EOIR, 959 F.2d 742 (9th Cir. 1992) [neither the INA nor the constitution mandates
complete translation]. The failure to object and to raise additional evidence that was precluded as a
result of poor translation prevented reversal of deportation order on those grounds. Cheo v. INS, 162
F.3d 1227, 1230 (9th Cir. 1998). The Board of Immigration Appeals has also concluded that the
government’s interpreter has no requirement to assist with filling out an asylum application. Matter of
C-, 20 I&N Dec. 529 (BIA 1992). At least one court has determined that a person who waives the right
to an interpreter, “cannot now blame inconsistencies in his testimony on his lack of fluency” in the face
of an IJ determination that he lacked credibility.Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003).
(2) Guidelines for Interpreters—Policy Memo, USCIS, PM-602-0125.1, The Roles and Use of Interpreters
in Domestic Field Office Interviews (Jan. 17, 2017), AILA Doc. No. 17011963; AFM 15.7; USCIS,
Website (on Interpreters), AILA Doc. No. 17011967. USCIS will now require interpreters and
interviewees in interviews to fill out and sign a G-1256, Declaration of Interpreted USCIS Interview.
The declaration requires the interpreter to accurately, literally and fully interpret for both the interviewee
and the USCIS officer. Interpreters are required to be: (i) sufficiently fluent in both English and the
language they are translating; (ii) able to interpret competently; and (iii) willing to interpret impartially
and without bias. Attorneys and accredited representatives cannot interpret for their client. Witnesses
and minors cannot interpret except for good cause shown and no minor under 14 can interpret under
any circumstances. Family members and business associates are generally disfavored because of
potential conflicts, particularly when they may be derivative beneficiaries. Good cause is determined in
the totality of the circumstances but may include reasons such as (1) prejudicial delay, (2) interviewees
living in rural, remote or sparsely populated areas, (3) interviewees who only speak a rare dialect or
language, (4) interviewees with confidential medical information who do not want to share sensitive
information with an unfamiliar interpreter; (5) VAWA interviewees; or (6) interviewees with certain
physical or mental disabilities, including developmental disabilities, who may be more responsive to a
familiar interpreter. AFM 15.7(c). If the interview is discontinued because the officer determines that
the interpreter is not qualified, the applicant may: (i) continue the interview using a qualified interpreter;
(ii) reschedule the interview; or (iii) continue the interview without an interpreter if the interviewee and
officer can communicate effectively in English. AFM 15.7(e) The requirements for interpreters do not
apply to persons translating documents. They also do not apply to persons interpreting in cases where
USCIS provides other guidelines for interpreters in field offices such as in asylum, refugee, credible
fear, NACARA and certain naturalization interviews.
(3) Defects in the Transcript Before the IJ—Obvious and substantial defects in the transcript should be
brought to the immediate attention of the clerk of the court. BIA-PM 4.2(f)(iii) and a “Request for
Correction of Transcript” should be filed with the Board. However, the deadlines for filing briefs remain
in effect unless the parties are notified otherwise. Id. Page 649
(4) Foreign Language Documents Must Be Translated—The requirement that all foreign language
documents must be translated for court proceedings, as well as the requirements for certification of a
translated document are specified at 8 CFR §§1003.33. See also 8 CFR §103.2(b)(3) (benefit
applications); Ramaj v. Gonzales, 466 F.3d 520, 530 (6th Cir. 2006) [where translated documents did
not contain a statement that the translator was competent in Albanian and English, documents were
properly excluded]; Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837–38 (8th Cir. 2004) [no IJ error to deny
admission of untranslated foreign passport without certification].Nadal-Ginard v. Holder, 558 F.3d 61,
67 (1st Cir. 2009) [foreign document may not need translation where the evidentiary significance of the
document was facially apparent]. There is nothing in the regulation that prohibits self-translation and
USCIS has assured AILA that “the applicant or beneficiary is not precluded from certifying the
translation as long as they are fluent in the relevant languages and can certify as such.” AILA/SCOPS
Teleconference Agenda (Nov. 13, 2013), AILA Doc. No. 13120344.
7.w. Administrative Closure
(1) In General—The broad authority of the Board of Immigration Appeals and the immigration judges to
administratively close cases under Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and Matter of W-
Y-U-, 27 I&N Dec. 17 (BIA 2017) has been reversed and severely curtailed by the Attorney General’s
decision in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018). In Avetisyan, the Board held that the
immigration judge or BIA, in deciding whether to administratively close a case, should weigh all
relevant factors including:
1. the reason administrative closure is sought;

2. the basis for any opposition to administrative closure;
3. the likelihood the respondent will succeed on any petition, application, or other action pursued
outside of removal proceedings;
4. the anticipated duration of the closure;

5. the responsibility of either party, if any, in contributing to any current or anticipated delay; and
6. the ultimate outcome of removal proceedings (e.g., termination or entry of removal order) when
the case is recalendared before the IJ or reinstated before the BIA.
Matter of Avetisyan, 25 I&N Dec. at 696. And in Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) the BIA
held that the primary consideration for an IJ in determining whether to administratively close
proceedings “is whether the party opposing administrative closure has provided a persuasive reason
for the case to proceed and be resolved on the merits.”
But, in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018), the AG determined that IJ’s and the Board
“lack the general authority to administratively close cases.” Castro-Tum, at 292. He found that neither 8
CFR §§1003.1(d)(1)(ii), 1003.10(b), 1240.1(a), nor any federal statute authorized a broad authority to
administratively close cases. He limited closure only to cases where an explicit regulation allows
closure, such as 8 CFR §1245.13(d)(3)(i) (Nicaraguan/Cuban nationals), 8 CFR §1214.2(a) (T visa
applicants), 8 CFR §1214.3 (LIFE Act spouses and children), or a judicially approved settlement (ABC
v. Thornburgh) “expressly authorizes such authority.” Castro-Tum, at 271, 281-84. Absent those types
of regulations or settlement agreements, immigration judges and the BIA simply have no authority to
administratively close a case. However, the AG did not reverse a host of other cases, which arguably
would suggest that DHS administratively close cases or an IJ make broader use of continuances to
meet statutory or regulatory goals. Matter of Rajah, 25 I&N Dec. 127, 135 n.10 (BIA 2009) [“We
encourage the DHS to administratively close cases where there is a pending prima facie approvable
visa petition”]; Matter of Hashmi, 24 I&N Dec. 785, 791 n.4 (BIA 2009) [same]. Page 650
(2) OPLA/DHS Policies on Administrative Closure—To review former DHS/ICE policies on Administrative
Closure, see in this section “Prosecutorial Discretion,” ¶ 2 (p.515), supra. Prior to the current
administration, DHS agreed to administratively close a file where the respondent was prima facie
eligible for TPS or DED. Memo, Carpenter, Deputy Gen. Co., HQCOU 120/12.2-P (Feb. 7, 2002),
reported in 79 No. 15 Interpreter Releases 524, 530–38 (Apr. 8, 2002). It also previously agreed to
administratively close a case where the respondent was prima facie eligible for DACA and had an
application pending. See e.g., Notes, AILA, San Diego ICE OPLA (Sept. 2013), AILA Doc. No.
13100907. DHS can also agree to administratively close a case and recharge a respondent in removal
proceedings (“repapering”) to allow the benefit of cancellation of removal. However, DHS will not agree
to reopen a case on this basis but if proceedings are reopened, DHS was previously generally required
to agree to administrative closure absent unusual circumstances. Memo, Cooper, G.C. (HQCOU
90/16.1-P) (Dec. 7 1999), Memo, Virtue, G.C. (HQCOU 90/16.1-P) (Dec. 7, 1998), reprinted in 77 No.
2 Interpreter Releases 39, 55–58 (Jan. 10, 2000)
(3) Federal Court—The circuit courts have jurisdiction to review the denial of administrative closure.
Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 891-93 (9th Cir. 2018) [post-Avetisyan courts have
jurisdiction to review the propriety of administrative closure decisions but respondent failed to show a
basis for relief under the Avetisyan criteria]; Hernandez-Castillo v. Sessions, 875 F.3d 199, 207-09 (5th
Cir. 2017) [court has jurisdiction under abuse of discretion standard to review denial under Avetisyan
criteria]; Gonzalez-Vega v. Lynch, 839 F.3d 738, 741 (8th Cir. 2016) [post-Avetisyan the court now
does have law to apply and circuit retracts Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir. 2010)];
Vahora v. Holder, 626 F.3d 907, 914-920 (7th Cir. 2010) [jurisdiction but finding no abuse denying
closure to child who sought joinder with parent’s case]; Garza-Moreno v. Gonzales, 489 F.3d 239, 242–
43 (6th Cir. 2007) [finding jurisdiction but no error where DHS opposed closure pre-Avetisyan]; Alcaraz
v. INS, 384 F.3d 1150 (9th Cir. 2004)[finding jurisdiction and remanding to BIA to determine whether
repapering policy had been violated]; but see Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir.
2009) [distinguishing Alcaraz and following Ekimian finding no jurisdiction because there is no law to
apply]; Cantu-Delgadillo v. Holder, 584 F.3d 682, 686–89 (5th Cir. 2009) [pre-Avetisyan BIA’s refusal to
administratively close file to await “repapering” over DHS opposition to closure did not violate
regulations, due process or equal protection]; Lopez-Reyes v. Gonzales, 496 F.3d 20 (1st Cir. 2007)
[failure to raise administrative closure argument resulted in failure to exhaust administrative remedies].
See also In re Immigration Petitions for Review Pending in U.S. Court of Appeals for the Second
Circuit, 702 F.3d 160 (2d Cir. 2012) [setting out procedure tolling petition for review briefing to allow
petitioners and the government to evaluate whether it is appropriate to remand petition to the BIA];
(4) Employment Authorization During Closure—A person whose case is administratively closed in the
exercise of prosecutorial discretion may under certain circumstances obtain employment authorization.
See in this section ¶ 2.f (p.518), supra.
(5) Reopening Case—An administratively closed case can only be reopened by re-calendaring and not
by DHS issuing a new NTA. EOIR, Uniform Docketing System Manual (Dec. 2013) at I-1, VI-11, AILA
Doc. No. 14100644.
7.x. Harmless Error Doctrine—Under BIA precedent, an agency’s violation of a procedural rule or regulation
does not per se invalidate proceedings. However, a violation of a regulation may invalidate a proceeding
where: (1) the regulation provides a benefit to the respondent; and (2) the violation prejudiced an interest
protected by the regulation. Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980); Matter of Santos, 19
I&N Dec. 105 (BIA 1984); Matter of Hernandez, 21 I&N Dec. 224 (BIA 1996). See also U.S. v. Calderon-
Medina, 591 F.2d 529 (9th Cir. 1979) [adopting two-prong test for regulatory violations]. The BIA and
courts are reluctant to find prejudice in some cases. Matter of Hernandez, supra [violation of a regulation
requiring explanation of contents of charging document and hearing notice is not prejudicial where
statutory requirements regarding charging document and notice of hearing are satisfied]; Matter of RSH et
al., 23 I&N Dec. 629, 644 (BIA 2003) [where respondent never informed of prehearing VD, there was no
prejudice; Matter of Cordova distinguished]; Maldonado v. Holder, 763 F.3d 155, 161-63 (2d Cir. 2014)
Page 651 [nonegregious violations of internal agency regulations such as 8 CFR §§287.8(b), (c) are not
basis to terminate proceedings]; Guo Shou Wu v. Holder, 741 F.3d 211, 214-15 (1st Cir. 2013) [BIA’s
improper application of REAL ID Act standard to asylum was not reversible because there was no
explanation how error affected application]; Li Hua Yuan v. U.S. Att’y Gen., 642 F.3d 420, 426-28 (3d Cir.
2011) [applying a harmless error standard that “it is highly probable that the error did not affect the
outcome of the case,” the court affirmed the BIA denial of asylum and withholding in a Chinese forced
sterilization case where the BIA erroneously engaged in de novo review of the IJ’s findings of fact];
Villegas de la Paz v. Holder, 640 F.3d 650, 655-56 (6th Cir. 2010) [in reinstatement of removal, DHS
failure to allow petitioner to make a statement in violation of 8 CFR §241.8(b), and its failure to give
petitioner review of her “A” file were harmless]; Zhou Zheng v. Holder, 570 F.3d 438, 442–43 (1st Cir.
2009) [BIA’s reliance on DOS report that was not in evidence without taking administrative notice was
harmless error]; Tariq v. Keisler, 505 F.3d 650, 657–58 (7th Cir. 2007) [BIA’s failure to address motion to
supplement the record on appeal was harmless because even if fully credited it would not have affected
denial of asylum]; Gilaj v. Gonzales, 408 F.3d 275, 290 (6th Cir. 2005) [recognizing due process right to
opening statement and closing argument but finding harmless error where no showing of prejudice];
Hernandez-Luis v. INS, 869 F.2d 496 (9th Cir. 1989) [must show violation prejudiced an interest protected
by regulation].
Where compliance with the regulation is mandated by the Constitution or protects a fundamental statutory
right, prejudice may be presumed. Matter of Garcia-Flores, 17 I&N Dec. 325, 329 (BIA 1980); Accardi v.
Shaughnessy, 347 U.S. 260 (1954); Sanchez v. Sessions, 870 F.3d 901, 912 (9th Cir. 2017) (petition for
rehearing pending) [applying Matter of Garcia-Flores and terminating removal proceedings where U.S.
Coast Guard violated regulations when they did not have probable cause or individualized suspicion to
detain individuals and hold them for Department of Homeland Security]; Leslie v. U.S. Att’y Gen., 611 F.3d
171 (3d Cir. 2010) [IJ failure to properly notify respondent of the availability of free legal services required
reversal and no showing of prejudice was necessary because the agency’s regulation was to protect
fundamental statutory and constitutional rights]; Al Mutarreb v. Holder, 561 F.3d 1023, 1029 (9th Cir. 2009)
[rejecting DHS’s harmless error argument that if deportability cannot be sustained on the record, the court
should nevertheless affirm it because he could have been removed on other grounds]; Bui v. INS, 76 F.3d
268 (9th Cir. 1996) [BIA cannot speculate as to the claimed harmless error]; Waldron v. INS, 17 F.3d 511
(2d Cir. 1994) [rejecting harmless error doctrine only where fundamental right derived from constitution or
federal statute, such as the right to counsel, at stake]; Montilla v. INS, 926 F.2d 162 (2d Cir. 1991); Sewak
v. INS, 900 F.2d 667, 670 n.7 (3d Cir. 1990) [rejecting harmless error argument even in absence of
respondent’s affirmative defense to deportation where respondent did not receive notice of hearing and
INS still has Woodby burden]; Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. 1982); Shahandeh-
Pey v. INS, 831 F.2d 1384 (7th Cir. 1987) [if violation of procedural protection “actually had the potential
for effecting the outcome of the deportation hearing”]; Millian-Zamora v. Ashcroft, 228 F.Supp.2d 272,
277–80 (E.D.N.Y. 2002) [where IJ violated law and regulation by not recording a witness’ testimony
prejudice need not be shown]; Matter of Michel, 21 I&N Dec. 1101 (BIA 1998) [reversing order of removal
where IJ failed to comply with 8 CFR §1240.10(a)(1) by not ascertaining on the record whether
respondent desired counsel]. See also Arizona v. Fulminante, 499 U.S. 279, 309 (1991) [harmless error
rule not applicable in “structural defect” cases]. At least one circuit has held that IJs must analyze the
totality of the circumstances when reviewing alleged violations of regulations promulgated to ensure
Fourth Amendment protections. Oliva-Ramos v. U.S. Att’y Gen., 694 F.3d 259, 282-84 (3d Cir. 2012).
7.y. Immigration Court Record—The record of proceeding may only be created by an IJ. No other
“photographic, video, electronic, or similar recording device will be permitted to record any part of the
proceeding.” 8 CFR §1003.28. Parties and members of the press, however, may have laptop computers,
wireless telephones, and electronic calendars provided they do not disrupt proceedings. Memo [OPPM
04-01], Creppy, Chief IJ, EOIR (Feb. 3, 2004), AILA Doc. No. 04022375; EOIR, Security Directive 01-
2015: Public Use of Electronic Devices in EOIR Space, AILA Doc. No. 15082102. The IJ may exclude
from the record arguments of counsel but must allow the person affected (or his counsel) to submit a brief.
8 CFR §1240.9. Where IJ refused to go on record with party’s objections, case was reversed and
remanded. Matter of Garcia-Reyes, 19 I&N Dec. 830 (BIA 1988). Page 652 See also Okoroha v. INS, 715
F.2d 380, 383–84 (8th Cir. 1983). But IJ not reversed for excluding parts of record in absence of prejudice.
Brice v. INS, 806 F.2d 415 (2d Cir. 1986); Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 1985). Failure to put
evidence in record because IJ suggested off-the-record it was unnecessary, precluded argument in
federal court that record was inadequate. Baria v. Reno, 94 F.3d 1335, 1340 (9th Cir. 1996), aff’d on other
grounds, 180 F.3d 1111 (9th Cir. 1999). However, the failure to record a witness’ testimony is so
fundamental that it would require further proceedings even in the absence of prejudice. Millian-Zamora v.
Ashcroft, 228 F.Supp.2d 272, 277–80 (E.D.N.Y. 2002) [where IJ violated §1229a(b)(4)(C) and 8 CFR
§1240.9 by not recording a witness’ testimony, prejudice need not be shown]. Off-the-record dialogue
should only occur “on rare occasions” when it is necessary “to the fair, expeditious and proper conduct of
the hearing.” If the IJ initiates the process he must inform the parties that the discussion will be
summarized on the record, make it clear that the tape recorder is being turned off, summarize the
discussion on the record and ask the parties if the summary is accurate and “if they have anything to add
to the summary.” Memo [OPPM 03-06], Creppy, Chief IJ, EOIR (Oct. 10, 2003), AILA Doc. No. 03121714.
Where IJ has closed the hearing, a party may not submit evidence except on a motion to reopen. 8 CFR
§1003.31(c) [if application or document is not filed within time set by IJ, it is waived]; Chay-Velasquez v.
Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) [upholding IJ denial of the admission of a supplemental filing to
asylum application after record was closed]. As the IJ has the obligation to create the record, she may
submit documents in the record sua sponte. Constanza-Martinez v. Holder, 739 F.3d 1100, 1102-03 (8th
Cir. 2014) [IJ has duty to establish the record and therefore it was not a violation of due process for the IJ
to introduce USAID and DOS reports]. For additional information concerning the creation of the
administrative record, see Chapter 10, Section V.E (p.1927), infra.
7.z. Presence of Applicant/Respondent at Hearing—INA provides for 4 forms of proceedings: (1) in person;
(2) in the absence of respondent by agent of parties; (3) through video conference; and (4) telephonic
hearing. INA §240(b)(2)(A), 8 USC §1229a(b)(2)(A); 8 CFR §1003.25.
(1) Telephonic Hearings—A telephonic hearing, for an evidentiary hearing, may only be with the consent
of the respondent. INA §240(b)(2), 8 USC §1229a(b)(2); 8 CFR §1003.25(c). A telephonic hearing held
over the objection of the respondent may violate his or her right to be physically present at the hearing.
Purba v. INS, 884 F.2d 516 (9th Cir. 1989) [pre-IIRIRA, reversing deportation order where hearing held
telephonically over respondent’s objection]. But see Beltran-Tirado v. INS, 213 F.3d 1179, 1185–86 (9th
Cir. 2000) [telephonic testimony of key witness was “fair”]; Bigby v. INS, 21 F.3d 1059, 1063–64 (11th
Cir. 1994) [unless credibility is at issue, telephonic hearing is permissible]; Matter of Villalba, 21 I&N
Dec. 842 (BIA 1997) [telephonic hearing in absentia without respondent’s consent is permissible].
(2) Respondent Not Present at Hearing—If respondent cannot be present due to mental incompetency
the AG shall prescribe safeguards to protect his rights and privileges. INA §240(b)(3); Immigration
Judge Benchbook at Part II (mental health issues). See in this section ¶ 7.aa(9) (p.655), infra, for a
more thorough discussion regarding respondents with mental illness. The AG may allow an attorney,
legal representative, legal guardian, near relative or friend to represent and appear on behalf of the
respondent. 8 CFR §1240.8. See Ramos v. Gonzales, 414 F.3d 800, 804–06 (7th Cir. 2005) [no due
process violation where lawyer with EOIR-28 waived client’s presence at all hearings and no showing
of prejudice despite petitioner’s claim that IJ should have determined that lawyer was authorized to
waive his appearance].The BIA’s test for determining competency is set forth in Matter of M-A-M-, 25
I&N Dec. 474 (BIA 2011).
(3) Video Hearings— 8 CFR §1003.25(c). A IJ can conduct a video hearing without the consent of the
respondent. INA §240(b)(2)(A)(iii), 8 USC §1229a(b)(2)(A)(iii); 8 CFR §1003.25(c). A video hearing
may have inherent problems that interfere with the right of representation and the ability of the IJ to
engage in appropriate fact finding. In asylum hearings, credibility findings are central and video
conferencing “may render it difficult for a factfinder … to make credibility determinations and to gauge
demeanor,” and “because video conferencing permits the petitioner to be in one location and an IJ in
another, its use results in a ‘Catch Page 653 22’ situation for the petitioner’s lawyer.… The
effectiveness of the lawyer is diminished.” Rusu v. INS, 296 F.3d 316, 322–24 (4th Cir. 2002) [finding
inherent problems with video conferencing but finding respondent was not denied a full and fair
hearing]. See also Letter, Creppy, Chief IJ, EOIR, Response to Chicago Appleseed Fund for Justice
report on video conferencing in the Chicago court (Aug. 31, 2005), AILA Doc. No. 05110965. However,
EOIR has adopted video conferencing on a national level. See e.g., Letter, Rooney, Director EOIR
(June 17, 2004), AILA Doc. No. 04062916 [supporting establishment of HQ Immigration Court in Falls
Church, Va., to do video hearing throughout the U.S.]. In Rapheal v. Mukasey, 533 F.3d 521, 530–34
(7th Cir. 2008), the court rejected constitutional and statutory (right to counsel) challenges to video
hearings, but found petitioner’s right to present and review evidence under 8 USC §1229a(b)(4)(B)
was denied by the video hearing where there was no record of the petitioner being allowed to review
the document that the IJ relied on in determining lack of credibility. Moreover, the court noted that the
“government’s decision to hold a video conference seems strange because the government had to
transport [the petitioner] a greater distance to participate in the video conferencing than the distance it
would have had to bring her to attend the hearing live before the IJ.” Rapheal, 533 F.3d at 334. Other
courts have also rejected due process challenges to video hearings. See Aslam v. Mukasey, 537 F.3d
110, 114–15 (2d Cir. 2008) [videoconferencing of witness where respondent was given the opportunity
to change venue and the opportunity to fully cross-examine did not violate due process]; Eke v.
Mukasey, 512 F.3d 372, 382–83 (7th Cir. 2008) [relying on a Mathews v. Eldridge analysis to determine
that petitioner had no due process right to a hearing in the physical presence of the IJ and on the facts
of the case video conferencing was consistent with due process]. But see Vilchez v. Holder, 682 F.3d
1195, 1199-1200 (9th Cir. 2012) [acknowledging that video-conference hearings may in certain
circumstances violate due process but finding no violation in this case].
(4) Location of the Hearing for Circuit Court Review—EOIR has also required IJs to specifically state the
location of the hearing, which is often different than where the IJ may be physically sitting. In part, this
is necessary to establish venue for purposes of judicial review. See INA §242(b)(2), 8 USC §1252(b)
(2) [requiring petitions for review to be filed in the circuit court of appeals for the judicial circuit in which
the IJ completed proceedings]. For example, an IJ sitting in Chicago but conducting a hearing with a
respondent in Kansas City, must state on the record that the location of the hearing is Kansas City,
which would result in review in the 8th Circuit instead of the 7th Circuit (Chicago). Memo [OPPM 04-
06], Creppy, Chief IJ, EOIR (Aug. 18, 2004), AILA Doc. No. 04081891. For a more complete
discussion of the issue, see Chapter 10, Section VI.F (p.1969), infra.
7.aa. Hearings Involving Minors
(1) Generally—The Trafficking Victims Protection Reauthorization Act of 2008 included certain
protections for Unaccompanied Alien Children (“UAC”) with respect to their treatment if apprehended,
taken into custody, placed in removal proceedings and seeking relief from removal. H.R. Rep. 110-941
at 215-16; 8 USC §1232 et seq.
(a) Definition of a UAC—Pursuant to 6 USC §279(g) a UAC is defined as a child who: (i) has no lawful
immigration status in the U.S.; (ii) has not attained 18 years of age; and (iii) with respect to whom
there is no parent or legal guardian in the U.S. or no parent or legal guardian in the U.S. who is
available to provide care and physical custody. This definition in the Homeland Security Act was
incorporated into the INA at 8 USC §1232(g). Procedures to determine the age of a child “shall take
into account multiple forms of evidence, including the non-exclusive use of radiographs”
(b) Special Provisions Related to UAC—8 USC §1232 note, PL 110-457 §235(b)(4). PL 110-457
§235(a) created special rules for the return of unaccompanied minor children who are nationals or
habitual residents of a contiguous country and will not permit their return or their placement in
removal proceedings if they have been victims of a severe form of trafficking or are at risk of being
trafficked.
i) UACs are not subject to expedited removal but instead must be placed in removal proceedings.
8 USC §1232(a)(5)(D); Page 654
ii) Jurisdiction over a UACs asylum claim is before USCIS and not before an IJ in the first instance.
INA §208(b)(3)(C);
iii) UACs are not required to file asylum within one year as the provision is waived as is the “safe
third country” exception. INA §208(a)(2)(E);
iv) UACs do not have to post bond or prove financial means to depart the U.S. in order to qualify
for VD. 8 USC §1232(a)(5)(D).
(2) Memoranda and Guidelines for UACs—EOIR has adopted separate guidelines for proceedings
involving unaccompanied children. Memo, Maggard, Chief IJ (Acting), Revised Docketing Practices
Relating to Certain EOIR Priority Cases (Feb. 3, 2016), AILA Doc. No. 16020406; OPPM 17-03, Keller,
Chief IJ, EOIR, Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied
Alien Children [replacing OPPM 07-01], AILA Doc. No. 17122032 [setting guidelines for interviewing all
unmarried individuals under the age of 18, and requiring IJs to determine whether a child is a UAC
(Unaccompanied Alien Child) at the time his or her case is being heard, and to report fraud or
misrepresentations by UACs];Memo, O’Leary, Chief IJ, EOIR, Docketing Practices Relating to
Unaccompanied Children Cases and Adults with Children Released on Alternatives to Detention in
Light of New Priorities (Mar. 24, 2015), AILA Doc. No. 15032702; Creppy, Chief IJ, EOIR (Sept. 16,
2004), AILA Doc. No. 04100568]; Legal Opinion, King, GC, EOIR, EOIR’s Authority to Interpret the
Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA (Sept. 19,
2017), AILA Doc. No. 17100201 [opining that IJs are not bound by DHS’s determination regarding
whether a respondent is a UAC and claiming that IJs may resolve any dispute about UAC status
during the course of removal proceedings when it bears on the UACs eligibility for relief including the
initial jurisdiction over asylum].
(3) Removal Procedures—Unaccompanied minor children may be placed in removal proceedings and
are eligible for VD at no cost and without providing proof of means to return. HHS shall make efforts to
provide them with pro bono counsel including appointing child advocates in child trafficking cases. See
Singh v. Holder, 749 F.3d 622, 626-27 (7th Cir. 2014) [respondent did not meet burden of showing he
was a minor where documentation and testimony were inconsistent and his I-213 and I-130
demonstrated he was over 18 at the time]. EOIR’s General Counsel has opined that the IJ may
interpret provisions regarding UACs, including whether they are UACs and eligible for certain forms of
relief under the TVPRA. See Legal Opinion, King, supra. If an unaccompanied child appears without
representation, a judge may ask why the parent or guardian is not present, but if the child notes his
parent or guardian is also not in a lawful status, it would be “inappropriate” for the IJ to give
assurances that the parent or guardian need not fear apprehension. Memo, O’Leary, Chief IJ, EOIR
(Mar. 24, 2015), supra at 3.
The “best interest of the child” standard is appropriate to determine the hearing environment but
cannot be used to negate statutory or regulatory standards for asylum or other relief. Neither the
regulations nor the INA permit the court to appoint a guardian ad litem. Hearings should be scheduled
if possible on a separate docket, telephonic and video conferencing may be waived, the IJ may wear
street clothing, and the IJ should employ child-sensitive questioning and make appropriate credibility
assessments given the child’s age. An IJ should “not assume that inconsistencies are proof of
dishonesty” as a child’s testimony “may be limited not only by his or her ability to understand what
happened, but also by his or her skill in describing the event in a way that is intelligible to adults.”
Guidelines, supra at ¶V(F). Motions to change venue may be granted without a pleading or application
for relief and motions to continue should be considered in light of the fact that unaccompanied minors’
cases are not subject to case or aged case completion deadlines.
An IJ cannot accept admissions of removability from an unrepresented minor (under 18) who is not
accompanied by a guardian, friend, or near relative. 8 CFR §1240.10(c); Immigration Judge
Benchbook at Part II B [addressing incompetency and representation]; Davila-Bardales v. INS, 27 F.3d
1 (1st Cir. 1994) [IJ cannot take admission or use I-213 where unaccompanied, unrepresented minor
made admission to establish deportability]; Matter of Mejina-Andino, 23 I&N Dec. 533 (BIA 2002)
[personal service on uncle of 7-year-old Page 655 is not sufficient when I-213 reveals parents are in
the U.S.]. But see Matter of Amaya, 21 I&N Dec. 583 (BIA 1996) [distinguishing Davila-Bardales, and
finding that IJ can accept admissions of fact from minors but only after conducting specific inquiry];
Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999) [reversing IJ in an in absentia case where IJ
found that I-213 taken when minor was 15 was insufficient to establish deportability]; Matter of Gomez-
Gomez, 23 I&N Dec. 522, 523–27 (BIA 2002) [IJ’s decision to terminate proceeding and discount I-213
reversed in in absentia hearing where INS relied on I-213 taken from alleged parent of 8-year-old];
Where counsel is obtained, she must be competent. Lin v. Ashcroft, 377 F.3d 1014, 1023–27 (9th Cir.
2004) [reversing denial of motion to reopen where minor’s counsel was ineffective in contacting,
preparing, failing to appear personally, advocating and appealing his client’s case].
Continuances and Administrative Closure—When an unaccompanied minor is applying for Special

Immigrant Juvenile status, the case may be administratively closed or reset. But continuances of two
weeks are insufficient as “several months may be necessary in many locales.” Memo, O’Leary, Chief
IJ, EOIR (Mar. 24, 2015), supra at 2 [also noting that several continuances may be warranted even in
adults with children cases].
(4) Bond Involving Minors—A bond is not required to release an unaccompanied child to a qualified
sponsor. 6 USC §279(b)(4). TVPRA §235(f)(2)(B).
(5) Notice/Service Involving Minors— 8 CFR §§103.8(c)(2)(ii) and 236.2(a). When a minor is placed in
the custody of a responsible adult pursuant to 8 CFR §236.3, notice must be served upon an adult or
the head of the institution where the minor is located unless the minor is 14 or older. Matter of Amaya,
21 I&N Dec. 583, 585 (BIA 1996) [service on IES facility in which 12-year-old respondent was detained
was sufficient under the regulation]; Matter of Cubor, 25 I&N Dec. 470 (BIA 2011) [a minor 14 or older
can be personally served without serving his adult custodian even if he was released into the
custodian’s custody as a juvenile]; Lopez-Dubon v. Holder, 609 F.3d 642, 645-47 (5th Cir. 2010)
[rejecting due process notice claim of 17-year-old, and holding that notice must only be given to adult if
child is under 14]; Llapa-Sinchi v. Mukasey, 520 F.3d 897, 899–901 (8th Cir. 2008) [finding that service
of OSC on minor over 14 did not violate former 8 CFR §103.5a(c)(2)(ii) or due process]. See also
Nolasco v. Holder, 637 F.3d 159, 162-65 (2d Cir. 2011) [service of NTA on 9-year-old while violative of
8 CFR §103.5a(c)(2)(ii) did not implicate a fundamental right as there was no showing of prejudice
where parents were involved immediately]; Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016) [where
service was improper on 12-year-old, DHS should be granted a continuance to properly reserve the
NTA]. But see Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) [notice given only to older
brother where younger brother was under 18 but over 14 was insufficient and in absentia order was
reversed]; Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) [reversing in absentia order against
15-year-old who was served with OSC under former 8 CFR §103.5a but no service was provided to
adult custodian; reading the statute to permit service solely on minor under 18 violated DHS
regulations, was not entitled to Chevron deference, and raised serious constitutional questions]. See
also Llanos-Fernandez v. Mukasey, 535 F.3d 79 (2d Cir. 2008), [remanding to BIA on virtually identical
facts to Flores-Chavez to allow BIA to issue a precedent decision and clarify its position on notice to
minors].DHS must provide consular notification which cannot be waived by a minor. U.S. v. D.L., 453
F.3d 1115, 1123 & n.6 (9th Cir. 2006).
(6) Asylum Proceeding—The USCIS has jurisdiction over an unaccompanied minor’s asylum application
whether filed under INA §208 in removal proceedings or INA §235(b) pertaining to expedited removal.
INA §208(b)(3)(C). USCIS will retain jurisdiction over an unaccompanied minor’s asylum claim, even if
she is in removal proceedings, Memo, USCIS, Kim, Acting Chief, Asylum Div., Updated Procedures for
Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children
HQRAIO 120/12a(May 28, 2013), AILA Doc. No. 13082667, or her case is before the BIA or federal
court. Memo, Langlois, Chief, USCIS Asylum Division, HQRAIO 120/12a, Implementation of Statutory
Changes Providing USCIS with Initial Jurisdiction over Asylum Applications Files by Unaccompanied
Alien Children (Mar. 25, 2009) at 2, AILA Doc. No. 09042230. But see Legal Opinion, King, GC, EOIR,
EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain
Provisions of TVPRA (Sept. 19, 2017), Page 656 AILA Doc. No. 17100201[opining that IJs are not
bound by DHS’s determination regarding whether a respondent is a UAC and claiming that IJs may
resolve any dispute about UAC status during the course of removal proceedings when it bears on the
UACs eligibility for relief including the initial jurisdiction over asylum]. For additional information, see
Chapter 4, “Children Applying for Asylum,” ¶ XI.B.10 (p.864), infra.
(7) Voluntary Departure—A child seeking voluntary departure in removal proceedings may obtain it at no
cost. PL 110-457 §235(a)(5)(D)(ii).
(8) Continuing Eligibility for Asylum or VD—EOIR’s legal counsel has opined that an IJ may determine in
the course of a removal proceeding whether a UAC has aged-out and is no longer eligible for the
special VD, asylum, or other benefits accorded UACs. See Legal Opinion, King, supra.
(9) Right to Appointed Counsel—J.E.F.M. v. Holder, 107 F.Supp.3d 1119 (W.D. Wash. 2015) [minor
plaintiffs stated a due process claim for right-to-appointed-counsel at a motion to dismiss stage] rev’d
on jurisdictional grounds J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) [denying jurisdiction to
minors raising constitutional challenge to representation in removal proceedings because under (b)(9)
the claims “arise form” removal proceedings and distinguishing McNary as statutory based and pre-
1996 amendments]. On appeal from a removal order, the Ninth Circuit found “that neither the Due
Process Clause nor the INA creates a categorical right to court-appointed counsel at government
expense for alien minors…” C.J.L.G. v. Sessions, 880 F.3d 1122, 1132-47 (9th Cir. 2018) [finding on
the facts of the case a Mathews analysis did not compel appointment of counsel]. The concurrence by
Judge Owens pointed out that the majority opinion did not hold, or even discuss, whether the Due
Process Clause mandated counsel for unaccompanied minors
(10) Optional Protocol to the United Nations Convention on the Rights of the Child, on the Sale of
Children, Child Prostitution and Child Pornography;
#http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx. The Optional Protocol may be
relied upon as a source of information for minors where appropriate. See “Children Applying for
Asylum,” Chapter 4, ¶ XI.B.10 (p.864), infra.
7.bb. Hearings Involving Persons Deemed Mentally Incompetent
(1) Generally—ICE is charged with identifying mentally incompetent persons in their custody and
providing relevant information about them to EOIR. Memo, Morton, Director ICE, Civil Immigration
Detention: Guidance for New Identification and Information-Sharing Procedures Related to
Unrepresented Detainees with Serious Mental Disorders or Conditions (Apr. 22, 2013), AILA Doc. No.
13042259. If the respondent cannot be present at his hearing because of mental incompetency, the
AG shall prescribe safeguards to protect his rights and privileges. INA §240(b)(3); Immigration Judge
Benchbook at Part II B [addressing incompetency and representation]. The AG may allow an attorney,
legal representative, legal guardian, near relative or friend to appear on behalf of an incompetent
respondent. 8 CFR §1240.4. In a class action case, however, one court has held that only a lawyer,
law student under supervision, or accredited representative may represent incompetent respondents;
see Franco-Gonzales v. Holder, 828 F.Supp.2d 1133 (C.D. Cal. 2011).The Board in Matter of M-A-M-,
25 I&N Dec. 474 (BIA 2011) noting a presumption of competency, nevertheless set forth a framework
that an IJ should employ to address mental competency in an immigration proceeding. If a person is
not competent, DHS must make service of the NTA on: (1) a person with whom the respondent
resides, who, when the respondent is detained will be someone in a position of demonstrated authority
in the institution or his delegate and when not detained will be a responsible party in his household if
available; (2) a relative, guardian, or person similarly close to the respondent; (3) in most cases, the
respondent; and (4) counsel for respondent if one is retained. 8 CFR §§103.8(c)(2)(i)(ii); Matter of E-S-
I-, 26 I&N Dec. 136 (BIA 2013). If DHS did not properly serve the respondent where indicia of
incompetency was manifest or arose during master calendar, the IJ should grant a continuance to
allow for re-service. If it arises at a later date the IJ should weight the balance regarding re-service. Id.
at 145. The IJ may not accept an admission from an unrepresented incompetent person. Page 657 8
CFR §1240.10(c). Overall, the test to determine whether a person is competent to participate in
immigration proceedings “is whether he or she has a rational and factual understanding of the nature
and object of the proceedings, can consult with the attorney or representative if there is one, and has a
reasonable opportunity to examine and present evidence and cross-examine witnesses.” Matter of M-
A-M-, 25 I&N Dec. at 479. The steps an IJ must take include: (i) determining whether there are indicia
of incompetency (which requires inter alia DHS to disclose any relevant materials in its possession
under 8 CFR §1240.2(a)); (ii) determining whether the respondent is competent to participate in
proceedings if there are indicia of incompetency, including the use of mental competency evaluations
to make the competency determination; and (iii) determining what safeguards shall be used to protect
the incompetent’s rights to a fundamentally fair proceeding. But see Franco-Gonzalez v. Holder, 2013
WL 3674492 (C.D. Cal. Apr. 23, 2013) [granting summary judgment on §504 grounds and finding
Matter of M-A-M- and DHS regulations insufficient]. Neither party bears the burden of proof to
determine respondent’s mental competency, but where indicia of incompetency are identified, the IJ
should determine competency by the preponderance of the evidence standard. Matter of J-S-S-, 26
I&N Dec. 679, 683 (BIA 2015) [competency determination is a finding of fact and reviewable by the BIA
under the clearly erroneous standard]; Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1183-84 (9th
Cir. 2018) [reversed removal where BIA abused its discretion by affirming the IJ’s inaccurate factual
findings about respondents competency and by failing to obtain most current mental health records
from DHS before determining competency]; Mejia v. Sessions, 868 F.3d 1118 (9th Cir. 2017) [where
there was clear indicia that respondent was not competent, IJ and BIA reversed for failing to follow
Matter of M-A-M- because IJ failed to articulate an assessment of respondent’s competence and why
the procedural safeguards suggested were adequate]. However, at least one circuit has determined
that due process does not require an IJ to ask a series of questions of every unrepresented person to
assess the person’s competency. Barker v. U.S. Att’y Gen., 792 F.3d 359 (3d Cir. 2015) [proposed
procedure would give more rights to person’s in removal than even criminal defendants]. And the IJ
does not violate due process because she refuses a respondent’s request for a mental health
evaluation after she followed Matter of M-A-M- and made her own competency evaluation at a
separate hearing. Diop v. Lynch, 807 F.3d 70 (4th Cir. 2015) [affirmed IJ’s denial to continue or
administratively close proceeding to permit an independent mental health evaluation after IJ conducted
competency hearing]. See also Brue v. Gonzales, 464 F.3d 1227, 1232–34 (10th Cir. 2006) [trial of
mentally incompetent does not violate substantive due process as it does in the criminal context];
Mohamed v. Gonzales, 477 F.3d 522, 526–27 (8th Cir. 2006) [rejecting claim that respondent was
incompetent without a separate hearing on competency by basing its decision on respondent’s actions
at removal hearing]. The Board, while recognizing that the IJ has the discretion to select and
implement appropriate safeguards in cases involving competency, has cautioned IJs not to terminate
proceedings (as opposed to administratively closing them) because the IJ should explore alternatives
to permit the proceeding to proceed even where testimony may not be obtained from the respondent.
Matter of M-J-K-, 26 I&N Dec. 773, 777 and n.4 (BIA 2016) [noting that the IJ “should be particularly
reluctant to terminate proceedings where, as here, the alien has a history of serious criminal conduct
and may pose a danger to himself or others upon his release into the community”].
(2) Asylum and Competency Issues—Where a mental health concern of the asylum applicant may be
affecting the reliability of his testimony, the IJ “should, as a safeguard, generally accept” that
applicant’s subjective view of his fear and accept that the applicant believes what he has presented
and then focus on whether he has met his burden of proof based upon the objective evidence and
other relevant issues. Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) [reversing the IJ’s denial of
asylum, withholding and CAT on credibility to permit the IJ to determine competency]. But see Singh v.
Sessions, 880 F.3d 220 (5th Cir. 2018) [no error in finding lack of credibility: (i) where person was
diagnoses with Post Traumatic Stress Disorder (PTSD) but provided testimony in a “coherent and
linear manner;” (ii) where the BIA’s decision in Matter of J-R-R-A- was not implicated because he was
found competent; and (iii) where the applicant failed to explain the discrepancies in his testimony and
failed to challenge the credible fear interview that was the source of the discrepancy] Page 658
Prior to Matter of M-A-M- the courts rejected competency challenges to immigration hearings. See
Nelson v. INS, 232 F.3d 258, 261–62 (1st Cir. 2000) [finding that an asylum applicant who stated that
her memory was bad and that she was not capable of defending herself did not rise to the level of
mental incompetence]; Brue v. Gonzales, 464 F.3d 1227, 1232–34 (10th Cir. 2006) [where incompetent
was represented by counsel there was no substantive due process violation and respondent was
accorded procedural protections provided by statute and regulations]. See also Azie v. Holder, 602
F.3d 916, 918-20 (8th Cir. 2010) [rejected claim that head trauma affected answers to asylum where
claim denied on credibility grounds]; Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 6–8 (1st Cir. 2008)
[absent exceptional circumstances, IJ is not required to sua sponte investigate competency where
respondent is represented by counsel]; Mohamed v. Gonzales, 477 F.3d 522, 526–28 (8th Cir. 2006)
[rejecting claim that respondent was incompetent without a separate hearing on competency by basing
decision on respondent’s actions at the removal hearing], rev’g Mohamed v. Tebrake, 371 F.Supp.2d
1043 (D. Minn. 2005)[IJ must inquire as to competency of respondent or §1240.4 would be a nullity;
abuse of discretion not to inquire where person was in a mental hospital and hearing was held via
circuit television]; Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977) [due process rights not
violated where respondent represented by counsel]. But see Franco-Gonzales v. Holder, 828
F.Supp.2d 1133 (C.D. Cal. 2011) and other reported decisions in the litigation.
(3) Procedural Framework for IJ Determination of Mental Competency—EOIR, Phase 1 of Plan to

provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental
Disorders (Dec. 2013), AILA Doc. No. 13123160
(a) Inquiry into Competence—IJ must appoint a legal representative in removal and custody
redetermination proceedings if the respondent has a serious mental disorder and “is detained,
unrepresented and incompetent” to represent himself. Id. at 1. A person is not deemed competent if
he: (1) does not have a rational and factual understanding of (a) the nature and object of the
proceedings; (b) the privilege of representation and the ability to consult with a representative; (c)
the right to present evidence and cross-examine witnesses; and (d) the right to appeal and (2) does
not have the reasonable ability to (a) make decisions about asserting and waiving rights; (b)
responding to allegations and charges in the proceeding; and (c) present information and respond
to questions relevant to eligibility for relief. Notwithstanding a presumption of competence, the IJ
must engage in a progressive three stage process if she believes there are questions of
competency by: first, detecting indicia of incompetence by being attentive in court to respondent’s
behavior; second, if necessary, conducting a judicial inquiry through a series of questions to
determine if there is reasonable cause to believe respondent is incompetent; and finally, if
necessary conducting an evidentiary hearing regarding competency. Indicia of incompetency may
include past or current interventions related to mental disorder such as outpatient mental health
treatment or psychiatric hospitalization and current manifestations of behavior such as poor
memory, paranoid or grandiose thinking, serious depression, poor intellectual functioning or
irrational behavior or lack of responsiveness in court. The inquiry regarding indicia of incompetence
“may appear and must be considered throughout all stages of the proceeding.” Id. at 4. The IJ may
also seek additional evidence through a mental health exam if she has determined that there is
reasonable cause after a judicial inquiry. In making a decision the IJ must set forth all findings of
fact and conclusions of law.
(b) Procedural Safeguards—IJ may not allow an incompetent person to waive the presence of a
qualified representative and the refusal of a respondent to cooperate with a qualified representative
does not negate the government’s need to provide appropriate safeguards and protection.
7.cc. Hearings In Absentia
(1) Hearings Commenced by Notice to Appear (after Apr. 1, 1997 under IIRIRA)—INA §240(b)(5), 8 USC
§1229a(b)(5). A person who fails to appear at a removal hearing after proper notice shall be ordered
removed “if the Service establishes by clear, unequivocal, Page 659 and convincing evidence that the
written notice was so provided and that the alien is removable.…” Ashfaque v. Holder, 639 F.3d 504
(8th Cir. 2011) [lawyer stipulated that client was served]; Williams-Igwonobe v. Gonzales, 437 F.3d 453
(5th Cir. 2006) [pre-IIRIRA case, where IJ proceeded in absentia and simply entered a boilerplate
order finding respondent abandoned his application for INA §212(h) relief rather than holding a
hearing, he violated the in absentia requirement of holding a hearing on the merits before entering an
in absentia order]; Wellington v. INS, 108 F.3d 631, 636–37 (5th Cir. 1997) [pre-IIRIRA finding that
government did not meet burden in INA §242B in absentia case where deportation order was
reopened and thereafter in absentia order without proof was entered]. Written notice, pursuant to INA
§239(a), 8 USC §1229(a), must be given in person or if personal service is not practicable through
service by mail to the respondent or his attorney. INA §240(b)(5)(A), 8 USC §1229a(b)(5)(A). The use
of certified return receipt mail is no longer required. The new provisions that went into effect Apr. 1,
1997 under IIRIRA also provide:
(a) A person who, without reasonable cause, fails or refuses to attend a removal proceeding is barred
from seeking entry to the U.S. within 5 years of her subsequent departure or removal. INA §212(a)
(6)(B). Under the former statute (INA §242B) this included any time a respondent failed to appear
for a deportation hearing after proper notice (when appearance was not excused by the IJ), even if
counsel appeared for the respondent and the issue of deportability had already been determined.
Matter of W-F-, 21 I&N Dec. 503 (BIA 1996) [INA §242B applies to failure to appear at any hearing
including those concerning relief after deportability was established].
i) Departure Prior to Hearing—An IJ is compelled to enter an in absentia order and may not
terminate proceedings for a person who departs prior to the scheduled hearing, if DHS proves
its allegations. Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012) [reversed IJ who refused
to proceed in absentia where respondent was properly served, appeared at a previous hearing,
but departed before a final hearing]; Ahmed v. Gonzales, 432 F.3d 709 (7th Cir. 2005) [relying on
8 CFR §1003.26 and 8 USC §1229a(b)(5), finding that in the case of an incompetent minor who
departed the U.S. prior to his final removal hearing, the IJ had no discretion to terminate
proceedings and was required to enter an in absentia order]. One circuit has determined that
departure, after service of the NTA, but prior to the removal hearing result in a “removal” in
absentia which may then be used to support a charge of illegal reentry. U.S. v. Ramirez-
Carcamo, 559 F.3d 384 (5th Cir. 2009). See also Toora v. Holder, 603 F.3d 282 (5th Cir. 2010)
[applying the departure bar on motions to reopen to person who left U.S. after service of NTA
but before final order]
(b) A person who has a final order entered against her in absentia after receiving oral notice is barred
from most forms of relief for 10 years including cancellation under INA §240A, VD under INA
§240B, AOS under INA §245, and registry under INA §249. See INA §240(b)(7). The bar was
formerly 5 years. The bar only applies where the failure to appear was not due to exceptional
circumstances and where the person was provided oral notice in her own language or a language
she understands regarding the time and place of the hearing and the consequences of failing to
appear. INA §240(b)(7).
Under the predecessor statute containing substantially similar language (§242B(e)(1)), the BIA
determined that a person who did not receive oral notice need not move to rescind the in absentia
order, but can simply move to reopen based on other factors, e.g., marriage to a USC. Matter of M-
S-, 22 I&N Dec. 349 (BIA 1998). [allowing motion to reopen where in absentia order without oral
notice was entered in January, motion to reopen was filed within 90 days, and visa petition based
on marriage to USC was approved in May]; Wu v. INS, 436 F.3d 157, 162–64 (2d Cir. 2006) [where
respondent was not given oral warnings and he sought asylum which was not barred by the former
5-year provision, the BIA abused its discretion in not considering his motion to reopen based on a
change-of-law argument, even if the BIA was correct in not rescinding the in absentia order]. But
see Grigous v. Gonzales, 460 F.3d 156, 161–63 (1st Cir. 2006) [Matter of M-S- did not automatically
require reopening, where relief Page 660 sought was asylum which is not barred under INA
§240(b)(7) and respondent failed to make required showing for reopening]. The bar does not apply
to a person seeking to reopen for asylum/withholding due to changed country conditions. Matter of
J-G-, 26 I&N Dec. 161 (BIA 2013) [the in absentia order need not first be rescinded to seek
reopening for asylum/withholding based upon changed country conditions and neither numerical
nor time bars apply].
(c) An in absentia order may be rescinded only if: (i) a motion to reopen is filed within 180 days of the
date of the order and the person demonstrates there were exceptional circumstances; or (ii) a
motion to reopen is filed at any time and the person can demonstrate that failure to appear was due
to a lack of proper notice in accordance with INA §239 or that he or she was in state or federal
custody and the failure to appear was through no fault of his or her own. INA §240(b)(5)(C), 8 USC
§1229a(b)(5)(C) and 8 CFR §1003.23(b)(4)(ii). Failure to appear due to incarceration in federal or
state custody may also include civil commitment and is not limited to persons who are subsequently
convicted. Matter of Evra, 25 I&N Dec. 79, 80 n.1 (BIA 2009) [IJ reversed where he maintained that
provision was limited to persons whose criminal charges were subsequently dismissed]. The
motion to rescind can only be made to an IJ, not the BIA. Singh v. Gonzales, 436 F.3d 484 (5th Cir.
2006). Other than the 180-day and “any time” for lack-of-notice rules, a respondent is given 90 days
to file a motion to reopen for any other purpose. INA §240(c)(7), 8 USC §1229a(c)(7); Matter of
Monges, 25 I&N Dec. 246 (BIA 2010) [the 90-day period to reopen for AOS applies to in absentia
orders and the 5-year bar on discretionary relief under former INA §242B(e)(1) is not an exception
to the 90-day period].
In general, the doctrine of equitable tolling applies to the motion to reopen deadline in the INA,
which is not jurisdictional. Mata v. Lynch, 576 U.S. __, 135 S.Ct. 2150 (2015). The 180-day period
is subject to equitable tolling where there is ineffective assistance of counsel, including ineffective
assistance or misrepresentations by notaries and other nonlawyers. Avila-Santoyo v. U.S. Att’y
Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc) [vacating its prior opinions in Abidi and Anin and
finding that the 90-day and 180-day bar is not jurisdictional but a “claims processing rule” that may
be equitably tolled]; Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) [ineffective assistance, even if it
occurs through a paralegal’s misrepresentation, is an exceptional circumstance and tolls the 180-
day period]; Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) [because the 180-day period to
reopen an in absentia determination is not jurisdictional, but a statute of limitations, it may be tolled
for ineffective assistance where counsel failed to distinguish between the adequacy of notice and
his client’s failure to receive notice of a hearing change]; Borges v. Gonzales, 402 F.3d 398 (3d Cir.
2005) [if notary working with lawyer committed fraud, 180-day period is tolled, motion to reopen is
timely filed, and ineffectiveness of counsel would constitute an exceptional circumstance to rescind
order; Bejar distinguished]; Fajardo v. INS, 300 F.3d 1018 (9th Cir. 2002) [180-day period equitably
tolled where immigration consultants made misrepresentations that prevented respondent from
attending hearing or appealing; court suggested in fn.8 that misrepresentation would constitute an
exceptional circumstance]; Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) [where respondent did not
appear at hearing because of fraudulent misrepresentation of nonlawyer, 180-day period for filing
under former INA §242B(c)(3)(A) was tolled]. The numerical limits to reopening are also not
jurisdictional and therefore subject to tolling. Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847 (11th Cir.
2013) [following Avila-Santoyo and extending its reasoning to numerical limitations but remanding
to the BIA to determine if it is jurisdictional or claims processing]; Joshi v. Ashcroft, 389 F.3d 732,
734–35 (7th Cir. 2004) [deadlines that govern transition from one court to another such as from the
BIA to the circuit court are jurisdictional but other deadlines such as the number or time limitation
on motions to reopen are not and court could review BIA’s denial of fourth motion to reopen in
absentia order]; Varela v. INS, 204 F.3d 1237 (9th Cir. 2000) [numerical limitation on motions to
reopen is equitably tolled where second motion Page 661 was filed after person was defrauded by
notary purporting to provide legal representation]. See also Montano Cisneros v. U.S. Att’y Gen.,
514 F.3d 1224 (11th Cir. 2008) [numerical bar does not apply in removal proceedings to the case as
a whole, but to each removal order, and where first motion to reopen was granted, respondent is
not numerically barred from filing a motion to reopen second removal order].The limitations period
is tolled until the respondent “definitively learns” of counsel’s ineffectiveness or fraud. Albillo-De
Leon v. Gonzales, 410 F.3d 1090, 1100 (9th Cir. 2005) [where respondent was defrauded by
nonlawyer who posed as a lawyer, time period for filing a motion to reopen under NACARA §203(c)
and 8 CFR §1003.43(e)(1) was tolled until date that current attorney found out that motion was not
filed].
However, where a party fails to exercise due diligence in pursuing her rights, equitable tolling is
unavailable. Hua Wan v. Holder, 776 F.3d 52, 57-58 (1st Cir. 2015) [even if respondent received
ineffective assistance of counsel his failure to act within a decade was not due diligence]; Xue Su
Wang v. Holder, 750 F.3d 87 (1st Cir. 2014) [no due diligence in regard to third motion to reopen in
2013 when hearing occurred in 1995]; Fustaguio Do Nascimento v. Mukasey, 549 F.3d 12, 18–19
(1st Cir. 2008) [petitioner failed to account for 5-year delay in filing first motion to reopen and 3-year
delay in filing second motion]; Yuan Gao v. Mukasey, 519 F.3d 376 (7th Cir. 2008) [a 75-day wait to
file motion to reopen was deemed lack of due diligence]; Singh v. Gonzales, 491 F.3d 1090, 1096–
97 (9th Cir. 2007) [upholding lack of due diligence where respondent waited 6 months to take any
action after he became suspicious]; Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) [upholding
denial of motion to reopen where petitioner waited 8 months after learning of ineffective assistance
and 5 months after complying with Lozada to file motion]. Singh v. Gonzales, 491 F.3d 1090, 1096–
97 (9th Cir. 2007) [upheld lack of due diligence where respondent waited approximately six months
to take any action with a new lawyer after he became suspicious]; Tapia-Martinez v. Gonzales, 482
F.3d 417, 423–24 (6th Cir. 2007) [equitable tolling not applied to numerical limitations where
respondent failed to exercise due diligence and file motions regarding her former lawyers]; Habchy
v. Gonzales, 471 F.3d 858, 864–66 (8th Cir. 2006) [no equitable tolling where respondent’s
argument is that he lost the opportunity to reopen his case because of his own pro se initial motion
to reopen]; Patel v. Gonzales, 442 F.3d 1011 (7th Cir. 2006) [equitable tolling denied where
respondent’s family waited almost 2 years to file motion to reopen based on ineffective assistance];
Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005) [recognizing equitable tolling for ineffective
assistance in failing to notify client about prior order, but denying petition for lack of due diligence];
Kanyi v. Gonzales, 406 F.3d 1087, 1090–91 (8th Cir. 2005) [declining to decide equitable tolling of
in absentia reopening because respondent did not act with due diligence]; Scorteanu v. INS, 339
F.3d 407, 412–14 (6th Cir. 2003) [equitable tolling did not apply because of lack of due diligence];
Jobe v. INS, 238 F.3d 96 (1st Cir. 2001) (en banc) [failure to file motion to reopen for several
months after receiving notice that removal order had been entered in absentia 6 months before
prevents equitable tolling]. The First and Second Circuit have determined that the person must
demonstrate due diligence during the entire tolling period which includes both the period of time
before ineffective assistance was or should have been discovered and the period from that point
until the motion to reopen is filed. Neves v. Holder, 613 F.3d 30, 35-37 (1st Cir. 2010) [following
Rashid and Second Circuit and holding petitioner did not exercise due diligence in waiting 3 years
to file motion to reopen]; Rashid v. Mukasey, 553 F.3d 127 (2d Cir. 2008) [a 14-month delay from
the time petitioner should have inquired of his lawyer who committed malpractice or obtained a new
lawyer demonstrated lack of diligence and he could not seek equitable estoppel from the time his
new lawyer—14 months later—advised him of the malpractice].
Sua Sponte and the 180-Day Time Limit—The 5th Circuit has also found no jurisdiction to review a
decision denying a motion to reopen for numerical or time-barred cases on the theory that an
equitable tolling claim is in essence a request that the BIA exercise its sua sponte discretion which
is not subject to review. Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). See also.
Gregoire v. Holder, 635 F.3d 159 (5th Cir. 2011) Page 662 [the specific statutory limitation of 180
days trumps the general right of an IJ to reopen a case sua sponte]. But see Mata v. Lynch, 576
U.S. __, 135 S.Ct. 2150 (2015).
Hearing Commenced by Order to Show Cause (prior to Apr. 1, 1997)—The filing of a motion to
reopen for deportation cases is not subject to the one motion rule in in absentia cases that is
imposed in other cases. 8 CFR §1003.23(b)(4)(iii)(D); Saakian v. INS, 252 F.3d 21, 25 (1st Cir.
2001). A party may therefore make as many motions to reopen as he wishes to challenge an in
absentia order in deportation and exclusion (but not removal) proceedings. Matter of Cruz-Garcia,
22 I&N Dec. 1155 (BIA 1999) [no time or numerical limitations for pre-§242B, i.e., cases
commenced by an OSC prior to June 13, 1992, cases to challenge the in absentia order and the
“reasonable cause” test not the “exceptional circumstances” test applies]. Contrast requirements for
in absentia orders in deportation proceedings 8 CFR §1003.23(b)(4)(iii)(A) & (D) with those in
removal proceedings. 8 CFR §1003.23(b)(4)(ii). Luntungan v. U.S. Att’y Gen., 449 F.3d 551, 555–
57 (3d Cir. 2006) [finding numerical limit does apply to in absentia orders in removal under 8 CFR
§1003.23(b)(4)(ii) as distinguished from in absentia deportation orders and holding that equitable
tolling did not apply to third motion to reopen where second motion was not numerically barred or
denied due to incompetence of second counsel]; Joshi v. Ashcroft, 389 F.3d 732, 734 (7th Cir.
2004)[discussing the distinction and pointing to BIA’s error, but allowing tolling because one motion
rule is not jurisdictional].
No Time Limit on Motion Based on Lack of Notice—Where the respondent seeks to reopen her
case because she failed to receive proper notice of the in absentia hearing, the INA provides that
she may file a motion to reopen at any time and is not bound by either the 180-day provision or the
general 90-day provision for motions to reopen. INA §240(b)(5)(C)(ii); Andia v. Ashcroft, 359 F.3d
1181 (9th Cir. 2004) [where respondent alleged lack of notice of in absentia hearing, the 180-day
time limit to reopen was inapplicable; the IJ erred in applying it and the BIA erred in determining
that reopening was a matter of discretion]. But see Derezinski v. Mukasey, 516 F.3d 619, 620–21
(7th Cir. 2008) [BIA upheld in denying motion filed after 11 years where petitioner disappeared after
first motion to reopen was denied and nothing had changed in 11 years]; Matter of M-R-A-, 24 I&N
Dec. 665, 674 (BIA 2008) [applying a due diligence standard to motions to reopen based on lack of
notice].
No Departure Bar Limit on Motion Based Upon Lack of Notice—The regulatory departure bar on
motions to reopen (8 CFR §§1003.23(b), 1003.2(d)) does not preclude an IJ from adjudicating a
motion to reopen an in absentia order based upon lack of notice. See Matter of Bulnes, 25 I&N
Dec. 57, 58-60 (BIA 2009); Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314 (11th Cir. 2006).
Not Necessary to Rescind Removal Order to File Asylum/Withholding Based Upon Changed
Country Conditions—An applicant for asylum/withholding based upon changed country conditions
under INA §240(c)(7)(C)(ii) need not first rescind the in absentia removal order to apply. Matter of J-
G-, 26 I&N Dec. 161 (BIA 2013) [neither numerical, nor time limits, apply to motion to reopen due to
changed conditions and applicant need not first rescind in absentia order].
Proving Removability Still a Criteria—The government must prove and the IJ must find that the
respondent is removable as charged even in an in absentia proceeding. A respondent may
therefore seek a motion to reopen based upon a failure in the in absentia record to demonstrate
that removability was established by clear and convincing evidence. Al Mutarreb v. Holder, 561 F.3d
1023, 1031 (9th Cir. 2009) [even if Respondent received NTA, a removal order could not be
sustained where DHS did not meet its burden in establishing that respondent violated the terms of
his NIV].
(d) The filing of a motion to reopen an in absentia removal order for exceptional circumstances or
failure to obtain notice stays removal until the IJ rules. INA §240(b)(5)(C). If an appeal is taken to
the BIA, there is no automatic stay of the removal order. Galvez-Vergara v. Gonzales, 484 F.3d 798,
803 n.7 (5th Cir. 2007) [stay is automatic only Page 663 until IJ rules]; Bejar v. Ashcroft, 324 F.3d
127, 132–33 (3d Cir. 2003) [following 8 CFR §1003.23(b)(4)(ii) it was lawful to remove respondent
during the 30-day period between IJ’s denial of motion to reopen in absentia and the appeal to the
BIA because “neither the INA nor the regulations provide for an automatic stay of … removal during
the 30-day period”]; Compare 8 CFR §1003.23(b)(4)(ii) [discussion of automatic stay in removal
proceedings only before IJ and not before BIA] with 8 CFR §1003.23(b)(4)(iii)(C) [automatic stay
on appeal for a person who was in former deportation proceedings]. There is also no automatic
stay even before the IJ if the person was in a former exclusion proceeding. 8 CFR §1003.23(b)(4)
(3)(B). Thus, only a person in a former deportation proceedings will get an automatic stay both
before the IJ and the BIA. 8 CFR §1003.23(b)(4)(iii)(C); Matter of Rivera, 21 I&N Dec. 232 (BIA
1996); BIA Practice Manual (BIA-PM) Chap. 6.2. Thus, if a motion to reopen is denied before the IJ
for a person who was in removal proceedings, the remedy is to appeal to the BIA and to file a
motion to stay removal before the BIA.
(e) There is no direct appeal to the BIA from an order of deportation entered in absentia. INA §240(b)
(5)(C). The party can only file a motion to reopen before the IJ and appeal that decision to the
BIA.Matter of Guzman, 22 I&N Dec. 722 (BIA 1999) [post-IIRIRA applied to removal proceedings];
Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993) [pre-IIRIRA applied to deportation
proceedings]. A motion made before an IJ may be reconsidered by another IJ who receives the
transferred case. Singh-Bhathal v. INS, 170 F.3d 943 (9th Cir. 1999) [where first IJ granted motion
to reopen and transferred case, reconsideration and denial of the motion by the second IJ was
upheld].
(f) When does an in absentia order become final? The regulations provide that an in absentia order
becomes final immediately upon issuance. 8 CFR §§241.1, 1241.1(e). In light of the procedure to
require first a motion to reopen and then an appeal, at least one court has held that a motion to
reopen an in absentia order does not become final for some purposes until the BIA rules on the
motion. Kay v. Ashcroft, 387 F.3d 664, 670–73 (7th Cir. 2004) [BIA order does not become final for
purposes of a motion to reopen under §208.18(b)(2) until there is a final decision by the BIA on the
in absentia claim].
(g) Judicial review of an in absentia order “shall … be confined to (i) the validity of the notice provided
to the alien; (ii) the reasons for the alien not attending the proceeding; and (iii) whether or not the
alien is removable.” INA §240(b)(5)(D). Al Mutarreb v. Holder, 561 F.3d 1023, 1031 (9th Cir. 2009)
[even if Respondent received NTA, a removal order could be challenged where DHS did not meet
its burden by clear and convincing evidence to establish that the respondent violated the terms of
his NIV]; Abu Hasirah v. DHS, 478 F.3d 474, 477 n.1 (2d Cir. 2007) [reversing in absentia order
because respondent’s unintentional lateness by 15 minutes was not a failure to appear]; Cabrera-
Perez v. Gonzales, 456 F.3d 109 (3d Cir. 2006) [respondent’s tardiness by 15–20 minutes because
of traffic and unfamiliarity of the area by the driver was not a failure to appear]; Singh v. INS, 295
F.3d 1037, 1040 (9th Cir. 2002) [reversing the denial of a motion to reopen an in absentia order
where removal would lead to the “unconscionable result” of removing an individual who was eligible
for discretionary relief at the time of his hearing]. See also Camaj v. Holder, 625 F.3d 988, 992-93
(6th Cir. 2010) [finding court had no jurisdiction to address issue but noting for future cases that the
court would not consider simply being “tardy” for hearing as a failure to appear]; Nazarova v. INS,
171 F.3d 478, 482 (7th Cir. 1999) [analysis under former judicial review statute]. But see Patel v.
Holder, 563 F.3d 565 (7th Cir. 2009) [no judicial review of the denial of a motion to reopen an in
absentia order because the review was for abuse of discretion and involved factual claims and
weighing evidence and not legal or constitutional questions]. But see Kucana v. Holder, 558 U.S.
233 (2010) [reversing 7th Circuit and finding jurisdiction over motions to reopen]; Mata v. Lynch,
576 U.S. __, 135 S.Ct. 2150 (2015) [circuit courts have jurisdiction over motions to reopen even if
the underlying matter may in the agency or the court’s view not be justiciable]. Page 664
(2) Immigration Act of 1990 (former INA §242B, 8 USC §1252b)—Prior to IIRIRA, Congress had
established similar consequences and similar procedures when an in absentia order was entered. One
major distinction, however, was that notice had to be sent by certified return receipt mail. Another
distinction was that the bars to relief only applied for 5 years not 10. Former INA §242B(e). The
procedures under this statute govern in absentia deportation orders entered between June 13, 1992
(the effective date of prior INA §242B) and Apr. 1, 1997 (the effective date of INA §240(b)). Matter of
Monges, 25 I&N Dec. 246 (BIA 2010) [the 90-day period to reopen for AOS applies to in absentia
orders and the 5-year bar on discretionary relief under former INA §242B(e)(1) is not an exception to
the 90-day period]. Where the Order to Show Cause was sent by certified mail and the recipient’s
signature is illegible, then service has not been achieved. See Adeyemo v. Ashcroft, 383 F.3d 558, 560
(7th Cir. 2004). The same is true where the Order to Show Cause is signed for by an individual the
respondent does not know, and he was never given notice of the hearing. Chaidez v. Gonzales, 486
F.3d 1079, 1087 (9th Cir. 2007). Service of the Order to Show Cause is proper if received by a sister or
cousin, a responsible person at the respondent’s address. Tapia v. Ashcroft, 351 F.3d 795 (7th Cir.
2003). However, this standard applies only to OSC’s and not notices of hearings, which have a
presumption of service. Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995) (en banc).
(3) In Absentia Proceedings Prior to INA §242B—Prior to June 13, 1992, IJs conducted in absentia
hearing based on regulation and case authority. Unlike IIRIRA or prior INA §242B, a person in
proceedings before June 13, 1992 could have taken a direct appeal to the BIA at that time. Matter of
Gonzalez-Lopez, supra. The pre-§242B procedure applies if the OSC was issued before June 13,
1992. Matter of Cruz-Garcia, 22 I&N Dec. 1155 (BIA 1999); Lahmidi v. INS, 149 F.3d 1011 (9th Cir.
1998). Many of those cases turned on whether persons received proper notice or had a reasonable
cause for failing to appear. Adeyemo v. Ashcroft, 383 F.3d 558 (7th Cir. 2004) [illegible signature on
return receipt is insufficient to meet government’s burden of demonstrating notice; in absentia order
vacated]; U.S. v. Estrada-Trochez, 66 F.3d 733 (5th Cir. 1995) [upholding in absentia order entered 9
years after §212(c) application filed where no notice of hearing was given to counsel and applicant
received no actual notice on theory that applicant failed to submit a change of address]; Thomas v.
INS, 976 F.2d 786 (1st Cir. 1992) [upholding in absentia order where client and attorney showed up 10
minutes after IJ entered order]; Maldonado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989) [upholding in
absentia order where applicant had reasonable opportunity to be present and failed to provide
reasonable cause for his absence]; Wijeratne v. INS, 961 F.2d 1344 (7th Cir. 1992) [same]; Matter of
Patel, 19 I&N Dec. 260 (BIA 1985), aff’d, Patel v. INS, 803 F.2d 804 (5th Cir. 1986); Shah v. INS, 788
F.2d 970 (4th Cir. 1986) [failure to appear solely because respondent appealed denial of change of
venue to BIA is insufficient]. Notice of hearing was proper where notice sent to last known address.
U.S. v. Perez-Valdera, 899 F.Supp. 181 (S.D.N.Y. 1995) [notice sent by first class mail to address
where respondent was residing is sufficient even if no actual notice]. The OSC had to be personally
served or by certified return receipt for the first hearing if regular mail did not result in respondent’s
appearance. Former 8 CFR §242.1(c); Matter of Peugnet, 20 I&N Dec. 233 (BIA 1991). Where notice
was improper IJ had to terminate proceedings unless both parties agreed to administrative closure.
Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990). A respondent could move to reopen on a
showing of reasonable cause for absence; no need to demonstrate prima facie relief or exceptional
circumstances for failure to appear. Matter of Haim, 19 I&N Dec. 641 (BIA 1988);Matter of Ruiz, 20 I&N
Dec. 91 (BIA 1989); Matter of Haim, supra. Respondent was also not required to show prejudice.
Matter of Grijalva, 21 I&N Dec. 472, 473 n.2 (BIA 1996).
(4) No Failure to Appear—An in absentia order may not be entered where the respondent did not fail to
appear. In Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008) the IJ entered an in absentia order where
the petitioner arrived 2 hours late for court due to his car overheating even though the IJ was still on
the bench. The court reversed, finding “that a petitioner who arrives late for his immigration hearing,
but while the IJ is still in the courtroom, has not failed to appear for the hearing” and accordingly is not
required to demonstrate exceptional circumstances to reopen. Perez, 516 F.3d at 774–75. In Alarcon-
Chavez v. Ashcroft, 403 F.3d 343 (5th Cir. 2005) Page 665 the petitioner arrived 20 minutes after his
scheduled hearing after he got off at the wrong exit. He had attended all previous hearings and arrived
5 minutes after IJ entered the in absentia order. The IJ refused to return to the bench and denied a
motion to reopen on the grounds that there were no exceptional circumstances. The court ruled that it
was “beyond cavil that there was no failure to appear and that when: “(1) there is no failure but only
slight tardiness, (2) the IJ is either still on the bench or recently retired and still close by, and (3) the
time of the immigrant’s delayed arrival is still during ‘business hours,’ it is an abuse of discretion—if not
worse—to treat such slight tardiness as a non-appearance,” Id. at 346. The court noted “the curse of
the robe” reminding judges “that they are appointed not anointed.” Id. See also Abu Hasirah v. DHS,
478 F.3d 474 (2d Cir. 2007) [unintentional lateness by 15 minutes did not constitute failure to appear];
Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir. 2006) [arrival 15–20 minutes late because
respondent was waiting for a critical witness is not a failure to appear, only slight tardiness]; See also
Camaj v. Holder, 625 F.3d 988, 992-93 (6th Cir. 2010) [finding court had no jurisdiction to address
issue but noting for future cases that the court would not consider simply being “tardy” as a failure to
appear].
(5) Failure to Provide Notice as a Defense—Notice is no longer required to be by personal service or

return receipt; regular mail to the person’s last address is sufficient. INA §239(a)(1), 8 USC §1229(a)
(1). The Notice to Appear must be properly served before the person is put on notice of the address
and appearance requirements of §1229(a)(1)(F). Matter of G-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001).
Service of the NTA to the last address, when not received through constructive or actual notice, cannot
lead to the entry of an in absentia removal order. Id. However, if mail is refused then the individual is
nevertheless deemed to have been served constructively. Matter of M-D-, 23 I&N Dec. 540, 547 (BIA
2002) [“notice is deemed to be constructive when the NTA is sent to the correct address but mail is
refused. It is not reasonable to allow the respondent to defeat service by neglecting or refusing to
collect his mail.”] Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995) (en banc), specifies that the service
requirements for the charging document are different than those for hearing notice, and this reasoning
was adopted for removal proceedings which mirror the service requirements of the deportation
statute.Matter of G-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001). Any notice issued after the NTA has been
received is sufficient if it is given at the most recent address provided by the respondent. INA §240(b)
(5)(A). The notice must be “an address and telephone number (if any) at which the alien may be
contacted.” This does not require the address where the person is living, but merely where they may
be contacted. Arrieta v. INS, 117 F.3d 429, 431 (9th Cir. 1997). The notice need not be in any specific
language. Lopes v. Gonzales, 468 F.3d 81, 85 (2d Cir. 2006) [rejecting claim that notice was deficient
because it was not in Portuguese]. If the respondent provides evidence that he submitted a change of
address, an in absentia order must be vacated where notice was sent to an old address. Terezov v.
Gonzales, 480 F.3d 558 (7th Cir. 2007) [reversing denial of motion to reopen in absentia order where
BIA gave no weight to return receipts in respondent’s possession with his new address and
communications received from USCIS to new address concerning EAD]. However, if the respondent
fails to provide an address pursuant to INA §239(a)(1)(F), “no written notice shall be required.” INA
§240(b)(5)(B). Change of address under the statutory scheme must be provided “immediately.” INA
§239(a)(1)(F)(ii) and failure to provide the change of address may trump the failure to receive notice.
See Hernandez-Castillo v. Sessions, 875 F.3d 199, 204-06 (5th Cir. 2017) [dismissed lack of notice
argument where respondent claimed he did not have to provide address until the charging document
was filed]; Ledesma-Sanchez v. Lynch, 797 F.3d 131 (1st Cir. 2015) [failure to receive notice is not a
defense when respondent moved, did not provide the court with a new address, and the court’s record
indicated that notice was sent to prior address]; Hua Wan v. Holder, 776 F.3d 52, 57 (1st Cir. 2015)
[failure to receive notice is not a defense where respondent gave an inaccurate zip code to the INS];
Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010) [failure of 17-year-old to receive notice is not
enough because child had obligations to provide new address]; Shia v. Holder, 561 F.3d 19 (1st Cir.
2009) [where there was no affirmative denial that the NTA was not received, failure to furnish a new
address thereafter barred petitioner’s claim that she did not receive notice of her hearing]; Gomez-
Palacio v. Holder, 560 F.3d 354 (5th Cir. 2009); Maghradze v. Gonzales, 462 F.3d 150, 153–55 (2d Cir.
2006); Dominguez v. U.S. Att’y Gen., 284 F.3d 1258 (11th Cir. 2002) Page 666 [adhering strictly to
§239(a)(1)(F) and finding notice was adequate because respondent had failed to provide change of
address]. But where respondent does not receive the NTA which informs her of the change of address
requirement, she may assert the defense of lack of notice.Matter of G-Y-R-, 23 I&N Dec. 181 (BIA
2001) [where the respondent failed to receive the NTA and the initial notice of hearing it contains and
therefore was never notified of the initiation of removal proceedings or the change of address
obligation under INA §239(a)(1), s/he may not have an in absentia order entered against her/him.
Upheld IJ decision to terminate proceeding because proper notice under INA §239(a)(1)(F) that
requires that respondent first be informed of the statutory obligations under the NTA proceeding was
not given; Failure to comply with the registration provisions of INA §265 and consequences flowing
from it are unrelated to notice under INA §239]. Matter of Anyelo, 25 I&N Dec. 337 (BIA 2010) [applied
Matter of G-Y-R- in the 11th Circuit notwithstanding Dominguez which it distinguished as a due process
not statutory case]. Where notice is sent to the last known address, a presumption of receipt exists.
Lopes v. Gonzales, 468 F.3d 81, 84–85 (2d Cir. 2006) [presumption exists even by regular mail but it
may be rebutted].
(a) Form of Notice of Change of Address—The notice of a new address need not be given in the view
of one court in accordance with 8 CFR §1003.15(d)(2) on Form EOIR-33 to be valid. Beltran v. INS,
332 F.3d 407 (6th Cir. 2003) [where respondent through a friend who was a law student but not an
attorney submitted change of address on letterhead but not on EOIR-33 and EOIR sent notice to
old address, the EOIR-33 requirement at 8 CFR §1003.15(d)(2) was ultra vires of the statute and
the in absentia order was reversed].
(6) Failure to Receive Notice as a Defense
(a) Generally—Courts have drawn a distinction between the failure to properly send notice and the
failure of the respondent to receive it. Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir. 2006) [statutory
scheme draws a distinction between sending notice which can be the basis for an in absentia order,
8 USC §1229a(b)(5)(A) and receiving notice which can be the basis for a motion to reopen, 8 USC
§1229a(b)(5)(C)(i), (ii)]. Applicant’s failure to receive notice under regular mail procedure may be
established through a lesser standard than when return receipt mail was required. See e.g., Kozak
v. Gonzales, 502 F.3d 34, 36 (1st Cir. 2007) [reversing BIA reliance on Grijalva where respondent
submitted affidavit and stated: “we find that the use of regular mail renders the standard in Grijalva
unworkable …We leave it to the BIA to come up with a new standard to be applied to aliens who
claim non-receipt of notices sent by regular mail”]; Salta v. INS, 314 F.3d 1076, 1076 (9th Cir. 2003)
[reversing in absentia order and remanding to IJ for evidentiary hearing on lack of notice claim];
Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008) [addressing criteria for rebuttal of weaker
presumption of delivery of notice where delivery is by regular mail]. Respondent’s failure to receive
notice that a hearing date was changed may also be a sufficient basis to reopen an in absentia
order. Matter of Mancera, 22 I&N Dec. 79 (BIA 1998) [where record demonstrated notice of first
hearing but no notice of changed hearing date, IJ reversed and case reopened]. Accord Smykiene
v. Holder, 707 F.3d 785 (7th Cir. 2013) [an affidavit of nonreceipt is evidence of nonreceipt and in
the absence that respondent evaded service or changed addresses, in absentia order had to be
reversed]; Peralta-Cabrera v. Gonzales, 501 F.3d 837, 843–46 (7th Cir. 2007) [pre-IIRIRA where
respondent provided his location and who he was staying with he did not thwart notice by failing to
tell DHS that notice should be sent “care of” the homeowner]; Joshi v. Ashcroft, 389 F.3d 732, 735–
36 (7th Cir. 2004) [reversing denial of fourth motion to reopen in absentia proceedings where
respondent submitted affidavit and other documentation indicating he failed to receive notice
notwithstanding evidence that the government properly sent it]. See also Hernandez v. Lynch, 825
F.3d 266 (5th Cir. 2016) [BIA abused its discretion in denying motion to reopen in absentia order
where it failed to properly consider respondent’s affidavit and other indicia that he was not an
absconder, including filing an FOIA request, when the notice of hearing was sent by regular mail];
Alrefae v. Gonzales, 471 F.3d 353, 358–60 (2d Cir. 2006) [IJ’s refusal to rescind in absentia order
Page 667 reversed where IJ merely recounted that notice was sent properly without considering
respondent’s claim that he never received it]; Sabir v. Gonzales, 421 F.3d 456, 458 (7th Cir. 2005)
[when the IJ was presented with evidence that respondent did not receive notice because it was
returned to the court marked “Attempted-Not Known,” he should have reopened the in absentia
order because INA §240(b)(5)(C)(ii) allows reopening “if the alien demonstrates that the alien did
not receive notice in accordance with …section 239(a)”]; Ko v. Gonzales, 421 F.3d 453 (7th Cir.
2005) [same]. But see Nunez v. Sessions, 882 F.3d 499, 506-07 (5th Cir. 2018) [where notice of
hearing was mailed but returned due to failed internal workings of the household service was
sufficient]; Diaz v. Lynch, 824 F.3d 758 (8th Cir. 2016) [affidavit alone after admitting receiving the
NTA without more was insufficient]; Sanchez v. Holder, 627 F.3d 226, 230-32 (6th Cir. 2010)
[rejecting claim that failure to receive notice is a defense if government properly mails it]; Freeman
v. Holder, 596 F.3d 952, 958 (8th Cir. 2010) [where petitioner was warned of his duty to provide
change of address but failed to do so, court upheld in absentia order and found it had no jurisdiction
to review factual determination of whether he provided correct address]; Gomez-Palacio v. Holder,
560 F.3d 354 (5th Cir. 2009) [where petitioner was given NTA with change of address requirements
and failed to give current address, lack of notice defense rejected]; Maghradze v. Gonzales, 462
F.3d 150, 153–55 (2d Cir. 2006) [where respondent claimed he never sent change of address
because he did not understand directions, court upheld BIA reasoning that his failure to file change
of address amounts to constructive notice barring rescinding order even if he never actually
received notice]; See also Ledesma-Sanchez v. Lynch, 797 F.3d 131 (1st Cir. 2015) [failure to
receive notice is not a defense when respondent moved, did not provide the court with a new
address, and the court’s record indicated that notice was sent to prior address]; Dominguez v. U.S.
Att’y Gen., 284 F.3d 1258 (11th Cir. 2002) [adhering strictly to §239(a)(1)(F) and finding notice was
adequate because respondent had failed to provide change of address]. At least one circuit has
found that the presumption favoring notice may be overcome by circumstantial evidence. Lopes v.
Gonzales, 468 F.3d 81 (2d Cir. 2006) [IJ’s in absentia order reversed because the presumption of
receipt of a properly addressed and mailed notice of hearing was overcome by “circumstantial
evidence”]. The courts will review an IJ’s decision for abuse of discretion. Maknojiya v. Gonzales,
432 F.3d 588 (5th Cir. 2005) [reversing IJ for abuse of discretion where respondent and counsel
submitted affidavits stating they never received notice of hearing where certified return receipt
notice was no longer required. Grijalva distinguished]; Murtuza v. Gonzales, 427 F.3d 508 (7th Cir.
2005) [no abuse where facts were ambiguous].
(b) Notice While Respondent in DHS Custody—DHS has responsibility to notify EOIR. 8 CFR
§1003.19(g); Memo, Hamilton, Assoc. Gen. Counsel (HQCOU 50/10.2) (Apr. 13, 1998), reprinted in
75 No. 17 Interpreter Releases 627, 636 (May 4, 1998).
(c) Notice Involving Minors—See in this section ¶ 7.aa(5) (p.654), supra. DHS must also provide
consular notification, which cannot be waived by a minor. U.S. v. D.L., 453 F.3d 1115, 1123 and n.6
(9th Cir. 2006).
(d) Notice to Counsel—In the view of some courts, notice to counsel is deemed sufficient even if
counsel does not convey information to the respondent. Patel v. U.S. Att’y Gen., 639 F.3d 649 (3d
Cir. 2011) [notice to counsel sufficient particularly where client lacked diligence in contacting
counsel]; Van Dos Reis v. Holder, 606 F.3d 1 (1st Cir. 2010) [respondent could not challenge in
absentia order for lack of notice where notice was sent to counsel, although could have argued that
ineffective assistance constituted “exceptional circumstances”]; Dominguez-Capistran v. Gonzales,

438 F.3d 876 (8th Cir. 2006) [no exceptional circumstances where counsel failed to inform client of
hearing date, but court gave stay for 90 days to file motion to reopen with BIA because ineffective
assistance was not alleged before the BIA or circuit court]; Scorteanu v. INS, 339 F.3d 407, 412 (6th
Cir. 2003) [where lawyer who committed malpractice received notice, no lack of notice defense
even if respondent may claim exceptional circumstances]. Cf. Cruz-Gomez v. Lynch, 801 F.3d 695
(6th Cir. 2015) [notice to counsel cannot be equated in all cases to notice to the client because
client was Page 668 to be personally served unless not practicable; but where notice was
personally served on counsel with client present at the hearing the statute is satisfied]. See also
Matter of N-K- & V-S-, 21 I&N Dec. 879 (1997); Matter of Rivera-Claros, 21 I&N Dec. 599, 602 (BIA
1996). However, notice to a former attorney where a different attorney was representing the
respondent may violate due process even if respondent received notice directly. U.S. v. Dorsett,
308 F.Supp.2d 537, 543 (D.V.I. 2003). Nevertheless, one circuit has held that notice must be
provided to counsel where counsel files a notice of appearance in court or the in absentia order will
be vacated. Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir. 2009) [in absentia order reversed
where BIA did not prove respondent received notice and his counsel of record was not sent notice].
(e) Notice to Others in Household—Notice to an adult relative is also sufficient notice. Tapia v.
Ashcroft, 351 F.3d 795 (7th Cir. 2003) [notice of the OSC is deemed to be constructive if received
by a sister or cousin]; Matter of Gomez-Gomez, 23 I&N Dec. 522, 528 (BIA 2002) [notice to person
who claimed to be father of 8-year-old is sufficient].
(f) No Time Limit on Motion Based on Lack of Notice—Andia v. Ashcroft, 359 F.3d 1181 (9th Cir.
2004) [where respondent alleged lack of notice of in absentia hearing, the 180-day time limit to
reopen was inapplicable; the IJ erred in applying it and the BIA erred in determining that reopening
was a matter of discretion].
(g) Deportation Does Not Bar Motion Based on Lack of Notice—Because there is no time limitation on
a motion for lack of notice, the motion may be made even if the person is physically removed from
the U.S. Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009) [agreeing with Contreras-Rodriguez; holding
that in absentia order based upon lack of notice may be reopened even if the person departed the
country and executed the order under INA §101(g)]; Contreras-Rodriguez v. U.S. Att’y Gen., 462
F.3d 1314 (11th Cir. 2006) [respondent who was physically removed after in absentia order, is not
barred from a motion to reopen for lack of notice because INA §240(b)(5)(C) and 8 CFR
§1003.23(b)(4)(ii) allows a motion to be filed at “any time”]. But see Shah v. Mukasey, 533 F.3d 25,
27 (1st Cir. 2008) [referencing 8 CFR §1003.34(b)(1) as a basis to prohibit a motion to reopen,
even for lack of notice, where petitioner departed the U.S.]. But see Luna v. Holder, 637 F.3d 85,
99-102 (2d Cir. 2011) [the BIA may not contract its jurisdiction by relying on the departure bar]. Note
that the Board’s decision in Matter of Bulnes does not extend to motions to reopen in absentia
orders based upon exceptional circumstances.For a more complete discussion of the departure
bar, see Chapter 9, Section XIII.F (p.1758), infra.
(h) Notice Successfully Challenged—Notice must be properly addressed. Busquets-Ivars v. Ashcroft,

333 F.3d 1008 (9th Cir. 2003) [where NTA and notice of hearing were sent to address with wrong
zip code, in absentia order reversed]; Ying Fong v. Ashcroft, 317 F.Supp.2d 398, 400–03 (S.D.N.Y.
2004). Notice must also state the date, time and place for the hearing. Ying Fong v. Ashcroft, supra
at 405–06 [failure to provide date, time and place of hearing is inadequate notice]. Respondent’s
failure to receive notice that a hearing date was changed may also be a sufficient basis to reopen
an in absentia order. Matter of Mancera, 22 I&N Dec. 79 (BIA 1998) [where record demonstrated
notice of first hearing but no notice of changed hearing date, IJ reversed and case reopened];
Pervaiz v. Gonzales, 405 F.3d 488, 490–91 (7th Cir. 2005) [counsel committed ineffective
assistance when he failed to distinguish between adequacy of notice by the government where
notice was adequate under the regulations and not actually receiving notice of the change of the
time of his client’s hearing, which is a defense]. See also in this section “Burden of Proof,” ¶ (l)
(p.669), infra.
(i) Adequacy of Notice by Government Upheld—Where NTA is sent to respondent’s correct address
(for which there is no dispute) by certified return receipt but is left unclaimed at the post office by
the respondent, proper service has been made and in absentia order was upheld.Matter of M-D-,
23 I&N Dec. 540 (BIA 2002) [respondent’s defense that certified return receipt was not required and
that regular mail would Page 669 have been more reliable was rejected where certified return
receipt came back unclaimed from respondent’s uncontested address]; Shah v. Mukasey, 533 F.3d
25, 27 (1st Cir. 2008) [petitioner failed to meet burden that he did not receive NTA]; Aragon-Munoz
v. Mukasey, 520 F.3d 82 (1st Cir. 2008) [notice sent to RI address given on corrected asylum
application was sufficient in absence of other proof that petitioner lived in AZ]; Derezinski v.
Mukasey, 516 F.3d 619, 621–23 (7th Cir. 2008) [unclaimed return receipt was sufficient to show
notice in light of petitioner’s bare, uncorroborated affidavit denying service]. Failure to notify DHS of
change of address generally bars challenge. Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) [where
respondent never provided change of address service of NTA did not violate 8 USC §1229(a)(1)(G)
(i), 1229(a)(1)(F)(ii) or due process where notice of hearing was sent separately]; Haider v.
Gonzales, 438 F.3d 902, 906–08 (8th Cir. 2006) [where NTA did not state time and place of hearing
but subsequent notice was sent to former address and respondent failed to submit change of
address, in absentia order upheld]; Sousa v. Ashcroft, 393 F.3d 271 (1st Cir. 2005) [no abuse of
discretion to deny motion to reconsider in absentia order where respondent never notified INS of
change of address, NTA was not returned as undeliverable, and respondent failed to prove under
Matter of G-Y-R- that he did not receive notice]. See also Bhanot v. Chertoff, 474 F.3d 71 (2d Cir.
2007) [respondent failed to overcome presumption by circumstantial evidence where he claimed
nonreceipt of subsequent hearing but did not attend originally noticed hearing, and had
uncorroborated affidavit with a major misstatement of fact].
(j) Pre-IIRIRA Notice Challenges—Under pre-IIRIRA the OSC was required to be given by personal
service and courts reopened proceedings where neither the respondent nor counsel received
notice.Chaidez v. Gonzales, 486 F.3d 1079 (9th Cir. 2007) [where respondent submitted affidavit
stating he did not know the person who signed the certified return receipt and she was not a
“responsible person” at his residence, court reversed IJ’s in absentia order and held that service for
an OSC is more demanding than service for a hearing]; Adeyemo v. Ashcroft, 383 F.3d 558 (7th Cir.
2004) [illegible signature on return receipt is insufficient to meet government’s burden of
demonstrating actual notice of OSC and Matter of Huete, not Matter of Grijalva, which relates to
post-OSC notices of hearing, controls]; Kamara v. INS, 149 F.3d 904 (8th Cir. 1998) [where INS at
time of bond was given change of address they had obligation under §545 of IMMACT90 to place
change in system]; Urbina-Osejo v. INS, 124 F.3d 1314, 1317 (9th Cir. 1997) [there is reasonable
cause for failure to appear when an applicant has not received notice of the time and place of
hearing due to change of address and she was not informed of change of address requirement];
Arrieta v. INS, 117 F.3d 429 (9th Cir. 1997) [presumption of effective delivery of notice under Matter
of Grijalva, can be overcome where mailing address remains unchanged, where no one refused
service of mail and where there was nondelivery or improper delivery of mail]; Sewak v. INS, 900
F.2d 667, 671 n.9 (3d Cir. 1990) [there can be no proper exercise of discretion to deny reopening if
evidence establishes respondent was denied notice]. See also U.S. v. Montano-Bentancourt, 151
F.Supp.2d 794, 796 (W.D. Tex. 2001) [failure to send notice to address provided by respondent
renders proceeding fundamentally unfair in the context of a challenge under Mendoza-Lopez to a
criminal prosecution for reentry]. But see Ojeda-Calderon v. Holder, 726 F.3d 669, 673-74 (5th Cir.
2013) [order upheld where notice of hearing was delivered by certified mail in English and where
there was only an unsupported denial of receipt without showing that English-only notice prejudiced
respondent]; Patel v. Holder, 652 F.3d 962 (8th Cir. 2011) [strong presumption when sent by
certified mail was not overcome]; Camaj v. Holder, 625 F.3d 988, 989-92 (6th Cir. 2010) [petitioner
failed to meet burden to demonstrate it was practical to serve him in person]; Farhoud v. INS, 122
F.3d 794 (9th Cir. 1997) [no due process violation where notice mailed to last address and receipt
was acknowledged]. Counsel misplacing the notice does not alone amount to reasonable cause.
Wellington v. INS, 108 F.3d 631, 635 (5th Cir. 1997). The burden is on the respondent to
demonstrate she did not receive notice. Giday v. INS, 113 F.3d 230, 233 (D.C. Cir. 1997). But see
Matter of Powell, 21 I&N Dec. 81 (BIA 1995) Page 670 [failure of counsel to notify client not an
exceptional circumstance]; Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995).
(k) Method of Notice as a Constitutional Issue—A question may arise as to what method of notice is
adequate to trigger an in absentia order. In Mullane v. Center Hanover Bank & Trust Co., 339 U.S.
306, 314, 319 (1950), the Supreme Court determined that where property interests were at stake,
notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present their objections.” The “means
employed must be such as one desirous of actually informing the [party] might reasonably adopt to
accomplish it.” Id. at 315. See also generally, Sessions v. Dimaya, 584 U.S. __, 138 S.Ct. 1204,
1223-34 (2018) (Gorsuch, J. concurring) [striking down 18 USC §16(b) as unconstitutionally void for
vagueness and recognizing that “the most basic of due process’s customary protections is the
demand of fair notice”]. The Board adopted this approach in Matter of M-D-, 23 I&N Dec. 540, 542
(BIA 2002). Similarly, in Jones v. Flowers, 547 U.S. 220, 226–27 (2006) the Court determined that
when a certified letter threatening a tax foreclosure is returned unclaimed, the state must take
additional steps to notify the property owner. But see Ojeda-Calderon v. Holder, 726 F.3d 669, 675
(5th Cir. 2013) [failure to provide required notice in Spanish and English under pre-IIRIRA statute,
did not violate due process even if not in a language respondent understood]; Derezinski v.
Mukasey, 516 F.3d 619, 621 (7th Cir. 2008) [distinguishing Flowers in that a property owner is less
likely to avoid a hearing than an illegal immigrant]. However, the Supreme Court also determined
that notice reasonably calculated to apprise an interested party of an action and actual notice are
separate and under the forfeiture statute at issue the government did not have to ensure that the
claimant received actual notice. Dusenberry v. U.S., 534 U.S. 161 (2002) [the government did not
have to make heroic efforts to ensure actual notice where they sent notice by certified mail to 3
different locations including the prison where defendant was incarcerated].
(l) Burden of Proof
i) Standard Under Grijalva—In Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995) the BIA set forth the
type of proof required to overcome the “strong presumption of effective service” and to
demonstrate that notice was not received where respondent was served by certified mail. The
respondent must present “substantial and probative evidence from the Postal Service, third
party affidavits, or other similar evidence...” 21 I&N Dec. at 37; Mejia-Hernandez v. Holder, 633
F.3d 818, 822-23 (9th Cir. 2011) [2 certified return receipts mailed to address petitioner provided
that were left unclaimed at post office was sufficient notice under Grijalva]; Sanchez v. Holder,
627 F.3d 226, 232-34 (6th Cir. 2010) [petitioner did not overcome strong presumption of receipt
under Grijalva]; Rodriguez-Cuate v. Gonzales, 444 F.3d 1015, 1017–19 (8th Cir. 2006) [failing to
overcome presumption of service under Grijalva]. See also Derezinski v. Mukasey, 516 F.3d
619, 621–23 (7th Cir. 2008) [unclaimed return receipt was sufficient to show notice in light of
petitioner’s uncorroborated affidavit denying service]; Thongphilack v. Gonzales, 506 F.3d 1207
(10th Cir. 2007) [failing to meet burden where respondent informed IJ orally and submitted his
own affidavit but not an affidavit from the unidentified person who mailed his change of address];
Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004) [failure to provide affidavit or more than
conclusory statements is insufficient to carry burden of proof and fact that notice was stamped
rather than signed is unavailing].
ii) Post-Grijalva Involving Regular Mail—Matter of Grijalva was based upon the prior statute
(former 8 USC §1252b(c)(1)) where notice of hearing was required to be given by certified mail
and there was a strong presumption that the mail was delivered. Because the current statute
requires NTA service by regular mail, the presumption of delivery is far weaker and the nature of
the proof to rebut service is not the same. Many circuits and the BIA have rejected the Grijalva
standard in light of the “weaker” presumption of service by regular mail and have found that “all
relevant evidence … must be considered.” Matter of M-R-A-, 24 I&N Dec. 665, 673–75 (BIA
2008) Page 671 In Matter of M-R-A- the Board found sufficient proof to reopen and held that the
IJ may consider, but is not limited to: (1) respondent’s affidavit; (2) affidavits from family
members or other individuals who are knowledgeable about the facts; (3) the respondent’s
actions upon learning of the in absentia order and whether due diligence was exercised; (4) any
prior affirmative application before USCIS or the IJ for relief, including evidence of statutory
eligibility, indicating that the respondent had an incentive to appear; (5) the respondent’s
previous attendance before IJ; (6) any other evidence of nonreceipt; and conversely (7) whether
the respondent changed his address without filing an EOIR-33. 24 I&N Dec. at 674. See also
Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008) [following Matter of M-R-A-, distinguishing
Dominguez v. U.S. Att’y Gen., 284 F.3d 1258 (11th Cir. 2002), and vacating in absentia order];
Kozak v. Gonzales, 502 F.3d 34, 36 (1st Cir. 2007) [reversing BIA’s reliance on Grijalva where
respondent submitted affidavit and stating: “we find that the use of regular mail renders the
standard in Grijalva unworkable… We leave it to the BIA to come up with a new standard to be
applied to aliens who claim non-receipt of notices sent by regular mail”]. The Ninth Circuit has
developed its own standard finding that where a respondent “initiates a proceeding to obtain a
benefit, appears at an earlier hearing, and has no motive to avoid the hearing, a sworn affidavit
… that neither she nor a responsible party residing at her address received the notice should
ordinarily be sufficient to rebut the presumption of delivery and entitle [the respondent] to an
evidentiary hearing to consider the veracity of her allegations.” Salta v. INS, 314 F.3d 1076,
1079 (9th Cir. 2003) [reversing in absentia order and remanding to IJ]. See also Ba v. Holder,
561 F.3d 604 (6th Cir. 2009) [following the more liberal standards in MRA and Sembiring v.
Gonzales, the court remanded to the BIA to allow petitioner to prove she resided at the address
where notice was sent despite sending an AR-11 form 2 months later to USCIS]; Silva-Carvalho
Lopes v. Mukasey, 517 F.3d 156, 159–61 (2d Cir. 2008) [adopting Salta and reversing BIA denial
of motion to reopen because it improperly applied Grijalva burden]; Santana Gonzalez v. U.S.
Att’y Gen., 506 F.3d 274 (3d Cir. 2007) [Grijalva presumption only applies when notice is sent by
certified mail; affidavit of nonreceipt with other circumstantial evidence that the respondent had
no incentive to refuse to appear (eligible for Cuban Adjustment Act) may meet the weaker
presumption of notice sent by regular mail]; Sembiring v. Gonzales, 499 F.3d 981 (9th Cir. 2007)
[following Salta, reversing IJ refusal to reopen in absentia order and finding that respondent’s
pro se letter (not an affidavit) overcame the presumption of effective service because the
circumstances, including respondent’s affirmative asylum application and prior court
appearance, demonstrated she was not avoiding the process]; Alrefae v. Gonzales, 471 F.3d
353, 358–60 (2d Cir. 2006) [reversing IJ refusal to rescind where IJ merely recounted that notice
was sent properly without considering respondent’s claim that he never received it]; Lopes v.
Gonzales, 468 F.3d 81 (2d Cir. 2006) [IJ’s in absentia order reversed because the presumption
of receipt of a properly addressed and mailed notice was overcome by “circumstantial evidence”
including an affidavit and other indicia that respondent would not abscond]; Nibagwire v.
Gonzales, 450 F.3d 153 (4th Cir. 2006) [BIA abused its discretion by applying Grijalva standard
for certified mail because under the current regime service is by regular mail and has a much
weaker presumption]; Maknojiya v. Gonzales, 432 F.3d 588 (5th Cir. 2005) [IJ abuse of
discretion to rely on Grijalva presumption to deny reopening where certified mail was no longer
necessary]; Ghounem v. Ashcroft, 378 F.3d 740, 743–45 (8th Cir. 2004)[following Salta,
reversing IJ’s refusal to reopen in absentia order,and holding that statutory change from certified
to regular mail lessens the presumption that the mail was delivered]. But see Diaz v. Lynch, 824
F.3d 758 (8th Cir. 2016) [affidavit alone after admitting receiving the NTA without more was
insufficient]; Ramos-Olivieri v. U.S. Att’y Gen., 624 F.3d 622 (3d Cir. 2010) [distinguished
Santana Gonzalez and affirmed in absentia order where no evidence that respondent had relief
(other than VD), provided his correct address as required, or made arrangements for a
responsible person to forward his mail]. Page 672
Where person departed the U.S. prior to the initiation of removal proceedings, the in absentia
order was reversed because proper notification was not provided. Singh v. Gonzales, 412 F.3d
1117, 1121–22 (9th Cir. 2005) [person who departs the U.S. before removal proceedings is not
required to provide a change of address].
(m) Constructive Notice—At least one circuit has upheld the BIA’s interpretation that the respondent’s
failure to provide her correct address under the statute results in “constructive notice” even if she
never receives notice. Maghradze v. Gonzales, 462 F.3d 150, 153–55 (2d Cir. 2006) [where
respondent claimed he never sent change of address because he did not understand directions,
court upheld BIA reasoning that his failure to file change of address amounts to constructive notice
even if he never actually received notice].
(7) Exceptional Circumstances as a Defense—Under INA §240(e), 8 USC §1229a(e), exceptional

circumstances are defined as circumstances “beyond the control of the alien” such as battery or
extreme cruelty to the alien or any child or parent of the alien, serious illness to the alien or serious
illness or death of the spouse, parent or child of the alien, “but not including less compelling
circumstances.” The BIA, under the previous statute INA §242B, employed a “totality of the
circumstances” test to determine exceptional circumstances. Matter of W-F-, 21 I&N Dec. 503, 509
(BIA 1996). This view is supported by the legislative history under the former provision. H.R. Conf.
Rep. No. 955, 101st Cong., 2d Sess. at 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797 [“the
conferees expect that in determining whether an alien’s failure to appear was justifiable the Attorney
General will look at the totality of the circumstances to determine whether the alien could not
reasonably have been expected to appear”]. Totality of the circumstances may include: (1) supporting
documentary evidence; (2) respondent’s efforts in contacting the immigration court; (3) respondent’s
promptness in filing the motion to reopen; (4) strength of the respondent’s underlying claim; (5) the
harm respondent would suffer if motion is denied; and (6) the inconvenience to the government.
Kaweesa v. Gonzales, 450 F.3d 62, 68–69 (1st Cir. 2006) [citing Matter of B-A-S- and holding that
these concerns are grounded in due process]. A respondent cannot make bare allegations regarding
an exceptional circumstance but must submit detailed statements and medical or other records,
including proof of his absence from work where appropriate. Matter of J-P-, 22 I&N Dec. 33 (BIA 1998)
[migraine headache]; Matter of B-A-S-, 22 I&N Dec. 57 (BIA 1998) [foot injury], rev’d, Singh v. INS, 213
F.3d 1050 (9th Cir. 2000) [remanding because BIA imposed new requirements without notice].
However, where a respondent alleges exceptional circumstances, it is insufficient for the IJ simply to
iterate that service was properly made. Alrefae v. Gonzales, 471 F.3d 353, 360–61 (2d Cir. 2006) [IJ’s
refusal to rescind reversed where IJ merely recounted that notice was sent properly without
considering respondent’s claim of exceptional circumstances]. Ineffective assistance of counsel in
most circuits is considered an exceptional circumstance. See below.
Cases Finding Exceptional Circumstances
The courts and the BIA under the current and former statute (INA §242B) found exceptional
circumstances in the following cases: First Circuit. Murillo-Robles v. Lynch, 839 F.3d 88 (1st Cir.
2016) [short time period when respondent failed to appear (about 1/2 hour) coupled with ineffective
assistance of counsel who failed to promptly file motion to reopen]; Kaweesa v. Gonzales, 450 F.3d 62
(1st Cir. 2006) [where respondent confused dates and held IJ failed to consider any of the factors that
go into the “totality of the circumstances” test]; Herbert v. Ashcroft, 325 F.3d 68 (1st Cir. 2003) [IJ
improperly entered in absentia order because he denied a continuance to respondent’s counsel who
was required to be before a federal magistrate at the same time he was required to appear before the
IJ]; Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001) [under present statute ineffective assistance of
counsel is exceptional circumstance]. Second Circuit. Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008)
[ineffective assistance of counsel even if it occurs through a paralegal’s misrepresentation]; Romero-
Morales v. INS, 25 F.3d 125 (2d Cir. 1994) [suggesting a broader reading of exceptional
circumstances]. Third Circuit. Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) [ineffectiveness of
counsel would constitute an exceptional circumstance if 180-day period had already been tolled due to
fraud; Bejar distinguished]. Fifth Circuit. Galvez-Vergara v. Gonzales, 484 F.3d 798 (5th Cir. 2007)
Page 673 [reversing BIA for failure to follow Grijalva where respondent argued ineffective assistance of
counsel]; Sixth Circuit. Camaj v. Holder, 625 F.3d 988, 992-93 (6th Cir. 2010) [finding court had no
jurisdiction to address issue but noting for future cases that the court would not consider simply being
“tardy” for hearing as a failure to appear]; Scorteanu v. INS, 339 F.3d 407, 413–14 (6th Cir. 2003)
[counsel’s misfeasance and fraud in not informing client of hearing date and his subsequent
disbarment is an exceptional circumstance but no tolling of 180-day period where respondent did not
exercise due diligence in filing motion to reopen]. Seventh Circuit. Nazarova v. INS, 171 F.3d 478 (7th
Cir. 1999) [respondent was 2 hours late for court after waiting for a translator she reasonably thought
was necessary]. Ninth Circuit. Chete Juarez v. Ashcroft, 376 F.3d 944 (9th Cir. 2004) [pre-IIRIRA,
court reviewed the totality of the circumstances and respondent’s eligibility for relief]; Lo v. Ashcroft,
341 F.3d 934 (9th Cir. 2003) [BIA was arbitrary in not reopening in the absence of prejudice where
there was ineffective assistance even without adherence to Lozada]; Monjaraz-Munoz v. INS, 327 F.3d
892 (9th Cir. 2003) [attorney’s agent gave negligent advice to travel to Tijuana the day before the
hearing]; Singh v. INS, 295 F.3d 1037 (9th Cir. 2002) [where respondent appeared at 1 pm for an 11
am hearing, the case was reopened because respondent diligently appeared for all previous hearings,
had no reason to delay the hearing, easily confused the time based upon previous hearings and relief
was available because of his marriage to a USC, and removal would lead to the unconscionable result
of deporting someone eligible for discretionary relief]; Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999)
[person arrived to court tardy and IJ was still on the bench]; Romani v. INS, 146 F.3d 737 (9th Cir.
1998) [misadvice by legal assistant not to go into courtroom did not require finding of exceptional
circumstance as respondent did appear at courthouse; in absentia order reversed]. Eleventh Circuit.
Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224 (11th Cir. 2008) [BIA ignored its own precedent–
Grijalva–where person impersonated a lawyer and told client he did not have to appear]; Board of
Immigration Appeals. Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996) [ineffective assistance of
counsel resulted in advice by counsel that respondent did not have to appear because hearing was
“continued”].
Exceptional Circumstances Not Found
First Circuit. Asaba v. Ashcroft, 377 F.3d 9 (1st Cir. 2004) [ineffective assistance of counsel may be
an exceptional circumstance but Lozada not strictly adhered to]; Georcely v. Ashcroft, 375 F.3d 45, 49–
51 (1st Cir. 2004) [where respondent knew his hearing was set but failed to appear because his lawyer
filed a motion to change venue that the lawyer believed would be granted]; Rojas-Reynoso v. INS, 235
F.3d 26, 30 n.3 (1st Cir. 2000) [filing of a request for extension of VD or motion to reopen is not an
exceptional circumstance]. Second Circuit. Kulhawik v. Holder, 571 F.3d 296 (2d Cir. 2009)
[misunderstanding the court’s notice due to limited English and believing another notice would be
sent]; Webb v. Weiss, 69 F.Supp.2d 335, 338 (D. Conn. 1999) [failure of lawyer to appear and
instruction to client not to appear]. Third Circuit. Patel v. U.S. Att’y Gen., 639 F.3d 649 (3d Cir. 2011)
[notice to counsel sufficient particularly where client lacked diligence in contacting counsel]; Bejar v.
Ashcroft, 324 F.3d 127, 131–32 (3d Cir. 2003) [failure of counsel to inform client of hearing date and
time]. Fifth Circuit. Magdeleno de Morales v. INS, 116 F.3d 145 (5th Cir. 1997) [breakdown of
automobile on the way to court coupled with other factors]. Sixth Circuit. Acquaah v. Holder, 589 F.3d
332 (6th Cir. 2009) [mistaken belief as to the correct hearing date without other compelling factors];
Denko v. INS, 351 F.3d 717, 722–25 (6th Cir. 2003) [where counsel wrote to client suggesting he could
file motion to waive client’s appearance and client did not show up at hearing]. Seventh Circuit.
Uriostegui v. Gonzales, 415 F.3d 660, 663–64 (7th Cir. 2005) [respondent misheard the correct month
for the hearing]; Kay v. Ashcroft, 387 F.3d 664, 671 (7th Cir. 2004) [suffering from PTSD, being pro se,
understanding little English and notifying the court of a change of address]; Ursachi v. INS, 296 F.3d
592 (7th Cir. 2002) [conclusory allegations in the form of general affidavit of illness by respondent and
general note by physician was insufficient]. Eighth Circuit. Alvarado-Arenas v. Sessions, 851 F.3d 827
(8th Cir. 2017) [affidavit from wife that husband was out of the country when the NTA was filed could
be disregarded as self-serving by the BIA and where other facts, including applications, indicated he
was in the US, the Page 674 court rejected the “exceptional circumstances” exception to the validity of
the in absentia order]; Gitau v. Mukasey, 520 F.3d 906 (8th Cir. 2008) [petitioner misunderstanding his
attorney’s instructions regarding his appearance]; Dominguez-Capistran v. Gonzales, 438 F.3d 876
(8th Cir. 2006) [where counsel failed to inform client of hearing date it was not an exceptional
circumstance but court gave respondent 90-day stay to file a motion to reopen with the BIA because
ineffective assistance was not alleged before the BIA or the circuit court]. Ninth Circuit. Arredondo v.
Lynch, 824 F.3d 801 (9th Cir. 2016) [a car mechanical failure does not alone constitute exceptional
circumstances]; Vukmirovic v. Holder, 640 F.3d 977 (9th Cir. 2011) [applicant’s failure to provide his
counsel and the immigration court his address after moving was not an exceptional circumstance
warranting reopening]; Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003) [appearing 4½ hours
late for hearing because respondent mistakenly believed hearing was later without any showing of
relief beyond voluntary departure]; Celis-Castellano v. Ashcroft, 298 F.3d 888 (9th Cir. 2002)
[respondent failed to present evidence of severity of asthma attack]; Singh-Bhathal v. INS, 170 F.3d
943 (9th Cir. 1999) [erroneous advice of immigration consultant]; Sharma v. INS, 89 F.3d 545 (9th Cir.
1996) [traffic congestion]. Tenth Circuit. Tang v. Ashcroft, 354 F.3d 1192 (10th Cir. 2003) [failure to
show up at hearing after making 2 motions to change venue that were not ruled upon; no ineffective
assistance because respondent failed to comply with Lozada]. Eleventh Circuit. Lonyem v. U.S. Att’y
Gen., 352 F.3d 1338 (11th Cir. 2003) [respondent submitted sworn affidavits attesting to contracting
malaria the day before the hearing, but court gave deference to the IJ’s conclusion while questioning
respondent’s failure to notify the court]. Board of Immigration Appeals. Matter of S-M-, 22 I&N Dec.
49 (BIA 1998) [respondent’s questionable claims that the date on the notice of hearing was illegible
andthat he did not speak English]; Matter of J-P-, 22 I&N Dec. 33 (BIA 1998) [serious headache
resulting in person being bedridden in absence of documented proof]; Matter of Powell, 21 I&N Dec.
81 (BIA 1995) [failure of counsel to inform client of notice]; Matter of W-F-, 21 I&N Dec. 503 (BIA 1996)
[failure to appear because of employment on a fishing vessel]; Matter of Rivera, 21 I&N Dec. 599 (BIA
1996) [failure to file bar charge under Lozada where respondent claimed counsel refused to speak with
her and inform her of hearing]; Matter of Lei, 22 I&N Dec. 113 (BIA 1998) [ineffective assistance of
counsel claim as an exceptional circumstance must be filed within 180-day period]; Matter of Shaar, 21
I&N Dec. 541 (BIA 1996), aff’d, Shaar v. INS, 141 F.3d 953 (9th Cir. 1998) [neither the filing of a motion
to reopen for suspension during VD period, nor the IJ’s failure to adjudicate the motion prior to
expiration of VD constitutes an exceptional circumstance].
(8) Other Defenses—Respondent was barred from entering the courthouse.Twum v. INS, 411 F.3d 54 (2d
Cir. 2005) [where IJ misconstrued in absentia motion in exclusion as an ineffective assistance of
counsel claim under Lozada rather than a claim that security guards barred his entry to the court,
reversed and remanded]. Respondent was tardy but the IJ was still on the bench. Jerezano v. INS, 169
F.3d 613 (9th Cir. 1999) [in absentia order too “harsh and unrealistic”]. Respondent appeared at
courthouse but was told, improperly, by his counsel’s staff not to enter courtroom. Romani v. INS, 146
F.3d 737 (9th Cir. 1998) [in absentia order reversed because respondent appeared at courthouse and
therefore exceptional circumstance did not have to be established]. Respondent reasonably believed
she needed a translator after first appearance and arrived at court 2 hours late after waiting for
translator. Nazarova v. INS, 171 F.3d 478 (7th Cir. 1999) [violation of due process by depriving person
of meaningful hearing and noting “with disfavor their (BIA) refusal to distinguish between a failure to
appear at all and failure to appear at exactly the appointed hour”]. Respondent provided correct
address. Velasquez-Escovar v. Holder, 768 F.3d 1000, 1005 (9th Cir. 2014) [in absentia order reversed
for abuse of discretion where respondent provide correct address to DHS officers who put incorrect
address on the NTA; the court also rejected government’s assertion that 8 CFR §1003.15(d)(1), which
puts the burden on respondent to inform the immigration court that the address on the NTA is
incorrect, was not dispositive because the BIA never referred to it and the NTA itself provides no
warning regarding the regulation]. But see Thompson v. Lynch, 788 F.3d 638, 642-48 (6th Cir. 2015)
[respondent had burden to correct NTA pursuant to 8 CFR §1003.15(d)(1) and BIA did not abuse its
discretion in affirming in absentia order given respondent’s failure to correct the address on the
NTA].Denial of reopening leads to the unconscionable result of deporting Page 675 an individual
“eligible for relief from deportation.” Singh v. INS, 295 F.3d 1037 (9th Cir. 2002) [where respondent
appeared at 1 pm for an 11 am hearing, the case was reopened because respondent diligently
appeared for all previous hearings, had no reason to delay the hearing, easily confused the time based
upon previous hearings and relief was available because of his marriage to a USC].
(9) The Right Against Self-Incrimination and In Absentia Hearings—The assertion of a Fifth Amendment
right at a removal hearing cannot be used as a basis to proceed in absentia on the theory that the
person is not present. Matter of Castro, A43-570-146 (BIA Oct. 22, 1996) (unpublished).
(10) In Absentia Proceedings Involving Minors—Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA
1999) [reversing IJ in an in absentia case involving a minor where the IJ found the I-213 taken when
the minor was 15 was insufficient to establish deportability]; Matter of Gomez-Gomez, 23 I&N Dec.
522, 523–27 (BIA 2002) [IJ’s decision to terminate proceeding and discount I-213 reversed in in
absentia hearing where INS relied on I-213 taken from alleged parent of 8-year-old]. When a minor is
placed in custody of a responsible adult under 8 CFR §242.24 (now §236.3), notice must be served
upon the adult as well as the minor even if the minor is over 14. Flores-Chavez v. Ashcroft, 362 F.3d
1150 (9th Cir. 2004) [reversing in absentia order against 15-year-old who was served with OSC
pursuant to former 8 CFR §103.5a but no service was provided to adult custodian; reading the statute
to permit service solely on minor over age 14 and under age 18 violates DHS regulations, was not
entitled to Chevron deference, and raised serious constitutional questions].
7.dd. Summary Decision—Where deportability is determined on the pleadings and the respondent did not
make an application for relief under 8 CFR §1240.11, is statutorily ineligible for relief, or has been granted
VD by the IJ, the IJ may enter a summary decision. 8 CFR §1240.12(b). A summary decision may not be
entered where further fact-finding or analysis is necessary to resolve an issue that remains after the
respondent has admitted to the factual allegations and charges of removability. Matter of A-P-, 22 I&N
Dec. 468 (BIA 1999) [further fact finding required to determine whether asylum application should be
pretermitted under INA §241(b)(3)]. But see Matter of Rodriguez-Carrillo, 22 I&N Dec. 1031 (BIA 1999)
[distinguishing Matter of A-P- and finding additional proceedings unnecessary even where respondent did
not concede removability].
7.ee. Self-Deportation—A person “self-deports” if he or she leaves the U.S. after an order of deportation has
been entered. 8 CFR §§241.7, 1241.7; 8 USC §1101(g). Mrvica v. Esperdy, 376 U.S. 560, 563 (1964). If
he or she leaves before an order of removal has been entered, there is no self-deportation. However, an
in absentia order may be entered where person served with NTA fails to appear and court may thereafter
decline to review the order. Joo v. INS, 813 F.2d 211 (9th Cir. 1987). A person who lawfully entered the
U.S. but wishes to leave may be held for removal proceedings.Matter of Ruiz-Massieu, 22 I&N Dec. 833
(BIA 1999) [person seeking to leave U.S. within 24 hours of lawful entry held for removal proceeding for 4
years on grounds that Secy. of State determined his presence would have serious foreign policy
consequences].
7.ff. Removal by Stipulation—Parties can stipulate to deportation “which shall constitute a conclusive
determination” of removability. INA §240(d), 8 USC §1229a(d). IJ may enter an order without a hearing if
certain stipulations are met. 8 CFR §1003.25(b). However, if the person is unrepresented, the IJ “must
determine that the alien’s waiver is voluntary, knowing and intelligent.” Id.; U.S. v. Ramos, 623 F.3d 672
(9th Cir. 2010) [where respondent signed stipulated order without counsel that was in English when he
spoke Spanish, the court determined that defendant’s right to a removal proceeding and right to counsel
were not knowingly and intelligently waived, and IJ’s reliance on the stipulation without questioning the
respondent violated 8 CFR §1003.25(b)]. A waiver is “intelligent” only where the respondent was fully
informed of any relief available to him, including VD. U.S. v. Soto-Castelo, 621 F.Supp.2d 1062, 1071–72
(D. Nev. 2008) [IJ and ICE’s failure to inform respondent of VD and the absence of any language in the
IJ’s stipulated order that the waiver was voluntary, knowingly and intelligently made, did not comport with
8 CFR §1003.25(b) and due process]. Page 676
7.gg. Collateral Estoppel—Collateral estoppel applies where: (1) the issue at stake is identical to the one
involved in the prior litigation; (2) the issue was actually litigated in the prior litigation; and (3) the
determination of the issue was a critical and necessary part of the judgment in the prior litigation.
Palciauskas v. INS, 939 F.2d 963 (11th Cir. 1991). Where the issue was not “necessary and essential” to
the prior action, no collateral estoppel. U.S. v. Kantengwa, 781 F.3d 545, 553-57 (1st Cir. 2015) [Rwandan
found guilty of criminal perjury notwithstanding that she was granted asylum after IJ found that false
statements did not go to heart of her claim; collateral estoppel/issue preclusion did not apply because her
statements were materially false even if insufficient to deny asylum]; Santana-Albarran v. Ashcroft, 393
F.3d 699, 703–05 (6th Cir. 2005)[AG not collaterally estopped from arguing respondent did not prove he
entered the U.S. in 1985 for purposes of cancellation despite IJ’s finding on removal charge that he
entered EWI in 1985 because that date was not necessary and essential to find removability]. Where the
prior proceeding was not judicial in nature, it cannot bar relitigation of the issues. Cospito v. U.S. Att’y
Gen., 539 F.3d 166, 171–72 (3d Cir. 2008) [collateral estoppel does not apply to administrative AOS
because it is not judicial in nature and therefore subsequent IJ determination that person committed fraud
in the AOS is not precluded, nor is the denial of a waiver which was not addressed in the AOS].
Collateral estoppel applies in deportation proceeding where denaturalization proceeding in federal court
raised same issues as to misrepresentation on a visa, Kairys v. INS, 981 F.2d 937 (7th Cir. 1992);
Schellong v. INS, 805 F.2d 655 (7th Cir. 1986) or the same factual matters, Szehinskyj v. U.S. Att’y Gen.,
432 F.3d 253 (3d Cir. 2005) [former concentration camp guard and SS member who was denaturalized for
failing to disclose that he was a Nazi SS member and concentration camp guard was collaterally estopped
from asserting he did not assist in the persecution of others]; Dailide v. U.S. Att’y Gen., 387 F.3d 1335,
1342–43 (11th Cir. 2004)[where Lithuanian was denaturalized for illegal procurement due to his
persecution of Jews, the denaturalization record was admitted in immigration court and used to determine
removal]; Hammer v. INS, 195 F.3d 836, 840–42 (6th Cir. 1999). But see Palciauskas v. INS, 939 F.2d 963
(11th Cir. 1991) [reversing deportation order finding denaturalization proceeding did not collaterally estop
respondent in deportation]. But conversely collateral estoppel may not be used to bar reconsideration of
issues decided in a removal proceeding for purposes of a de novo review of a naturalization denial under
8 USC §1421(c). Nesari v. Taylor, 806 F.Supp.2d 848, 866-69 (E.D. Va. 2011) [IJ/BIA decision to terminate
removal proceedings and finding that petitioner entered lawfully on a K-1 did not preclude the district court
from independently determining that the K-1 was invalid ab initio because findings in removal proceedings
do not bind the district court in a naturalization review by virtue of 8 USC §1429].
The doctrine has also been applied to bar relitigation in deportation proceedings where the issue of entry
was raised and decided in the district court case involving adjustment. Ramsay v. INS, 14 F.3d 206 (4th
Cir. 1994). It has also been applied to prohibit the relitigation of eligibility for INA §212(c) relief. Paulo v.
Holder, 669 F.3d 911 (9th Cir. 2011) The doctrine has also been applied in proceedings on the question of
alienage where the respondent had a prior criminal conviction and a finding of alienage was essential to
that conviction. Howard v. INS, 930 F.2d 432 (5th Cir. 1991); cf. Duvall v. U.S. Att’y Gen., 436 F.3d 382 (3d
Cir. 2006) [although collateral estoppel applies to bar relitigation of alienage, it is a flexible concept and
does not apply where a clearly deportable person continues to commit criminal acts after initial
proceedings are terminated]. However, a finding of alienage in a deportation proceeding cannot be used
to collaterally estop a defendant in a criminal proceeding where alienage is an element of the crime. U.S.
v. Meza-Soria, 935 F.2d 166, 169 (9th Cir. 1991) [prior deportation order does not estop defendant in 8
USC §1326 prosecution from arguing he is a USC].
It has also been applied in naturalization proceedings to bar GMC. Kariuki v. Tarango, 709 F.3d 495, 505-
08 (5th Cir. 2013) [guilty plea to false claim to USC barred applicant’s claim that he had never
misrepresented himself as USC]. But see 8 USC §1429 [“the findings of the Attorney General in
terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this
chapter, shall not be deemed binding in any way upon the Attorney General with respect to the question of
whether such person has established his eligibility for naturalization…” ] Page 677
For a discussion of collateral estoppel/res judicata and NTAs, see in this section ¶ 4.f (p.523), supra.
7.hh. Filing Documents—Where applicant fails to timely file applications as required by IJ, application may
be deemed waived or abandoned. 8 CFR §1003.31; Kane v. Holder, 581 F.3d 231, 237–38 n.13, 16 (5th
Cir. 2009) [found no error in decision in Matter of A-K- that prohibited asylum application where counsel
stated he was only filing withholding]; Green v. INS, 46 F.3d 313 (3d Cir. 1995) [§212(c) application
deemed abandoned when counsel failed to timely file]; Matter of Islam, 25 I&N Dec. 637, 642 (BIA 2011)
[cancellation application deemed abandoned where applicant failed to timely file a complete application];
Matter of Villarreal-Zuniga, 23 I&N Dec. 886, 892 (BIA 2006) [AOS deemed abandoned when not timely
filed]; Matter of Shanu, 23 I&N Dec. 754, 764–65 (BIA 2005) [upholding denial of cancellation as
abandoned for failure to timely file]. But see Louis-Martin v. Ridge, 322 F.Supp.2d 556, 561–62 (M.D. Pa.
2004) [despite counsel’s failure to file I-589, CAT claim not deemed abandoned]. However, where counsel
files application but fails to present evidence with application as directed by the court, it is error for the IJ
to deem application abandoned. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010) [IJ erred in
deeming NACARA application abandoned instead of discounting requested evidence]; Casares-Castellon
v. Holder, 603 F.3d 1111 (9th Cir. 2010) [IJ/BIA may not deem timely filed application abandoned under 8
CFR §1003.31(c) where applicant failed to submit documents supporting his request for relief within the
time prescribed by the IJ]; But see Umezurike v. Holder, 610 F.3d 997, 1004-05 (7th Cir. 2010) [failure to
comply with deadlines for submission of evidence under 8 CFR §1003.31 was a sufficient basis to permit
IJ to deem asylum application abandoned]; Bropleh v. Gonzales, 428 F.3d 772, 778–79 (8th Cir. 2005) [IJ
did not err in failing to rule on application where respondent declined to abandon AOS application but
counsel said he would not present any evidence]. Any request for relief is deemed filed when document
actually received by the office of IJ. 8 CFR §1003.13. All fees must be paid to DHS and fee receipt must
be thereafter filed with office of IJ. 8 CFR §§103.7(a), 1003.31, 1103.7(a).
7.ii. Fee Procedure—Application fees must be paid to DHS, not the immigration court. 8 CFR §1103.7(a)(3).
Upon payment to DHS, respondent receives a receipt and any documents relating to the proceeding. The
fee receipt and the application or motion are then submitted to EOIR. For payment procedures see Paying
Immigration Fees, AILA Doc. No. 10072760. Appeals, however, are filed with the fee directly to the BIA. 8
CFR §§1003.8, 1103.7(a)(2), (b). When a motion is filed with the BIA that includes an application for relief
that has a separate fee (e.g., I-485), the fee for the motion is sent to the BIA and if the BIA grants the
motion, the movant will then pay the fee for the application for relief to DHS when the case is remanded to
the IJ. 8 CFR §1003.8(b).
7.jj. Recusal and Misconduct of IJ
(1) In General—In Matter of Exame, 18 I&N Dec. 303 (BIA 1982), the BIA recognized 3 distinct grounds
for recusal: (1) “the constitutional due process requirement that the hearing be before a fair and
impartial arbiter”; (2) the IJ had a personal, rather than judicial bias stemming from an “extrajudicial”
source; or (3) the IJ engaged in “such pervasive bias and prejudice” as shown by his judicial conduct.
These grounds are consistent with the recusal provisions of 28 USC §§144, 455, which apply to
federal court judges. Recusal under 28 USC §144 requires that affidavits be filed supporting the claim.
Sec. 455 does not have such a requirement but instead places the duty on the judge to disqualify
himself. This is consistent with 8 CFR §1240.1(b). An IJ’s recusal decision prior to a hearing should be
rendered in writing, provide a well-reasoned opinion for the grant or denial and be served upon the
parties. It must be issued in every case, as simple form or blanket orders will not suffice unless the IJ
had a role in the case as a DHS or private attorney. If the grounds do not become apparent until the
hearing the IJ may do it orally on the record. Memo [OPPM 05-02], Creppy, Chief IJ, EOIR (Mar. 21,
2005), at section IV, AILA Doc. No. 05032369.
Standards for disqualification are to be liberally applied. Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988); Hall v. SBA, 695 F.2d 175 (5th Cir. 1983). See also Nicodemus v. Chrysler Corp.,
596 F.2d 152 (6th Cir. 1979); U.S. v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989) [28 USC §455 eliminated
the doctrine that a judge had a “duty to sit” in a case]; Page 678 Matter of Osterloh, 34 F.2d 223 (S.D.
Tex. 1929). Moreover, when a legally sufficient motion is presented, it is inappropriate for the IJ to pass
upon the truthfulness of the facts. It should be given to another IJ to decide. Berger v. U.S., 255 U.S.
22 (1921). Further, there is no doubt that the Code of Judicial Conduct is applicable to IJs, as it is to all
administrative judges. See Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720 (3d Cir. 1985); Faulkner
Radio, Inc. v. FCC, 557 F.2d 866 (D.C. Cir. 1977); Amos Treat & Co. v. FCC, 306 F.2d 260 (D.C. Cir.
1962); Matter of Chocallo, 2 MSPB 23 (1978), aff’d, 2 MSPB 20 (1980). And failure to recuse may be a
violation of the Due Process Clause, Williams v. Pennsylvania, 579 U.S. __,136 S.Ct. 1899, 1905-07
(2016) [state Supreme Court justice’s failure to recuse himself regarding a stay by death row
defendant was a due process violation where he served as district attorney in the case and thus had
“significant, personal involvement” in the case].
The court’s conduct toward counsel may also be the basis for recusal. U.S. v. Kelley, 712 F.2d 884,
890 (1st Cir. 1983); Bell v. Chandler, 569 F.2d 556 (10th Cir. 1978); U.S. v. Ritter, 540 F.2d 459 (10th
Cir. 1976); U.S. v. Panzardi-Alvarez, 678 F.Supp. 353 (D.P.R. 1988). IJs have a “responsibility to
function as neutral and impartial arbiters” and “must assiduously refrain from becoming advocates for
either party” Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999). See also Schweiker v. McClure,
456 U.S. 188, 195 (1982) [due process demands impartiality on the part of those who function in
judicial or quasi-judicial capacities]; Zhang v. Gonzales, 405 F.3d 150, 157–61 (3d Cir. 2005) (McKee,
J., concurring) [where IJ appears to have decided case before hearing all the testimony because
respondent used the word “persecution,” and “real refugees” do not use that word case should be
remanded to BIA and new judge assigned]; Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003)
[where IJ took over questioning, did not act as a neutral fact finder, and engaged in a stream of
nonjudicious and snide comments demonstrating hostility to the respondent, due process was
violated]; Marincas v. Lewis, 92 F.3d 195, 204 (3d Cir. 1996). But see Lianhua Jiang v. Holder, 754 F.3d
733, 741 (9th Cir. 2014) [where IJ asked questions about personal relationship between respondent
and witness to understand relationship it was not a violation of due process]; Vargas-Hernandez v.
Gonzales, 497 F.3d 919, 925–27 (9th Cir. 2007) [upholding denial of recusal despite IJ’s invitation to
file the motion where there was no evidence of prejudgment and applicant was given a full and fair
opportunity to present his case]. A judge should not necessarily recuse himself, according to EOIR,
because a party sues or threatens to sue him. Memo [OPPM 05-02], Creppy, Chief IJ, EOIR (Mar. 21,
2005) at ¶III(A), AILA Doc. No. 05032369. Nor would events that were remote in time or an IJ’s cutting
or hostile comments to an attorney regarding his skill mandate recusal. Id.
But whether recusal is appropriate, the IJ’s testiness, inappropriate comments, and overly abrupt or
intimidating manner may raise a due process claim, or reversal of the IJ’s decision and removal from
the case. Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) [where IJ belittled 14-year-old respondent
and asked inappropriate questions, the IJ’s denial was vacated and case was remanded to be heard
before another IJ].The AG issued a directive to improve the manner in which IJ’s conduct themselves
on the bench in light of substantial concerns raised by the press and the public. Memo, Rooney,
Director, EOIR Apr. 2007), AILA Doc. No. 07041165. See also Serrano-Alberto v. U.S. Att’y Gen., 859
F.3d 208 (3d Cir. 2017) [where IJ was confrontational, dismissive and hostile to respondent, including
interrupting and belittling his testimony, cutting off his answers and nitpicking immaterial
inconsistencies, she violated respondent’s due process rights]; Abulashvili v. U.S. Att’y Gen., 663 F.3d
197, 207-09 (3d Cir. 2011) [asylum applicant’s due process rights were violated where IJ stepped into
the role of government attorney to cross-examine applicant thus depriving petitioner of a fair and full
hearing]; Castilho de Oliveira v. Holder, 564 F.3d 892 (7th Cir. 2009) [vacating and remanding IJ’s
denial of asylum where “IJ repeatedly interrupted the testimony to ask irrelevant and sometimes
inflammatory questions, refused to consider important evidence, and decided the case without
seriously engaging with the evidence”]; Torres v. Mukasey, 551 F.3d 616, 626–27 (7th Cir. 2008)
[reversing adverse credibility finding where the “IJ’s questioning was so pervasive that it was often
difficult to determine who was representing the federal government with more fervor—the IJ or the
government’s attorney”]; Ali v. Mukasey, 529 F.3d 478, 490–93 (2d Cir. 2008) [vacating termination of
CAT deferral of removal where IJ made improper remarks and assumptions Page 679 about
homosexuals]; Floroiu v. Gonzales, 481 F.3d 970, 973–76 (7th Cir. 2007) [where IJ characterized
asylum applicants as “religious zealots” who were “offensive to the majority” his comments evidenced
sufficient bias to deprive applicants of due process]; Islam v. Gonzales, 469 F.3d 53 (2d Cir. 2006)
[where IJ repeatedly addressed respondent in “an argumentative, sarcastic, impolite, and overly hostile
manner that went beyond fact-finding and questioning” the court reversed; “[e]ven when, as here, the
IJ firmly believes a petitioner is not truthful, repetitive verbally abusive comments and questions taint
the proceedings, erode the appearance of fairness and call into question the result of the proceeding”];
Huang v. Gonzales, 453 F.3d 142, 148–51 (2d Cir. 2006) [reversing adverse-credibility assessment in
forced abortion case; IJ’s apparent bias against the applicant required reassignment to a different IJ].
In Cham v. U.S. Att’y Gen., 445 F.3d 683 (3d Cir. 2006), the court determined that that IJ’s conduct
violated due process and deprived a Gambian asylum applicant of a fair hearing where IJ assumed the
application was invalid, nitpicked for inconsistencies and contradictions, prevented applicant from
presenting evidence/witnesses, and engaged in conduct that was abusive toward the applicant
including preventing him from testifying by continually interrupting him. The court reversed the IJ and
quoted Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997) stating: “It is a hallmark of the American system
of justice that anyone who appears as a litigant in an American courtroom is treated with dignity and
respect. That expectation must be met regardless of the citizenship of the parties or the nature of the
litigation. In a country built on the dreams and accomplishments of an immigrant population, a
particularly severe wound is inflicted on the principle when an immigration matter is not conducted in
accord with the best of our tradition of courtesy and fairness.” Cham, 445 F.3d at 685. See also
Sukwanputra v. Gonzales, 434 F.3d 627, 637–38 (3d Cir. 2006) [IJ’s comments were so intemperate
the court suggested a different IJ on remand because “justice must satisfy the appearance of justice”
and there is a need to ensure fairness and satisfy the appearance of impartiality]; Giday v. Gonzales,
434 F.3d 543, 547–50 (7th Cir. 2006) [although resolving the case on other issues, the court applied
the totality of the circumstances test to the IJ’s conduct and noted both that the IJ asked far more
questions than the assistant district counsel and that “when the questioning becomes so aggressive
that it frazzles applicants and nit-picks inconsistencies” any benefit to the development of the record is
lost]; Wang v. U.S. Att’y Gen., 423 F.3d 260, 267–71 (3d Cir. 2005) [where the “tone, the tenor, the
disparagement, and the sarcasm of the IJ seem[ed] more appropriate to a court television show than a
federal court proceeding, the court reversed the adverse credibility finding, remanded to the BIA and
suggested a new IJ be assigned]; Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538–40 (7th Cir. 2005)
[IJ violated due process under the totality of the circumstances when he frequently interrupted
respondent’s counsel, assumed the role of counsel for the government and precluded 2 experts from
testifying in Guatemalan asylum claim]; Ahmed v. Gonzales, 398 F.3d 722 (6th Cir. 2005) [where IJ
misunderstood testimony and made improper rulings as to credibility, due process was violated, the
IJ’s order was reversed, and the court ordered that a new judge hear the matter].
No IJ Violation/Misconduct Warranting Reversal
Aparicio-Brito v. Lynch, 824 F.3d 674, 681-82 (7th Cir. 2016) [IJ’s questioning during cancellation
hearing should be commended, not criticized]; Gutierrez-Berdin, 618 F.3d 647 (7th Cir. 2016) [despite
citing IJ in two other cases, the court found that despite an arguably inappropriate comment in this
case, he “properly examined evidence and gave due credence to petitioner’s points of view”]; Ahmed
v. Holder, 765 F.3d 96, 102-03 (1st Cir. 2014) [despite note in court file at close of evidence but while
case was pending final argument that the IJ wrote to clerk requesting a draft opinion denying the case,
the respondent failed to show deep-seated bias]; Constanza-Martinez v. Holder, 739 F.3d 1100, 1102-
03 (8th Cir. 2014) [IJ has duty to establish the record and therefore it was not a violation of due
process for the IJ to introduce USAID and DOS reports]; Delgado v. Holder, 674 F.3d 759, 766-69 (7th
Cir. 2012) [IJs interruptions and questioning did not substantially effect proceeding]; Wang v. Holder,
569 F.3d 531, 540–41 (5th Cir. 2009) [quoting from Liteky v. U.S., 510 U.S. 540, 555 (1994) [a judge is
not biased simply because he expresses impatience, and absent hostility due to an extrajudicial
source or a degree of hostility making fair judgment impossible, a due process claim should be
denied]; Hassan v. Holder, 604 F.3d 915, 923-24 (6th Cir. 2010) Page 680 [not a basis to recuse an IJ
simply because she previously was chief counsel for DHS in the district office]; Ogayonne v. Mukasey,
530 F.3d 514 (4th Cir. 2008) [IJ’s reliance on evidence he obtained from Internet, his brief and targeted
questioning regarding that evidence, and his decision to limit testimony with little relevance did not
violate due process]; Santosa v. Mukasey, 528 F.3d 88, 93–94 (1st Cir. 2008) [no showing of prejudice
in “weak” asylum case where IJ may have prematurely cut off presentation of evidence]; Yosd v.
Mukasey, 514 F.3d 74, 77–79 (1st Cir. 2008) [rejecting claim that, as an institutional matter, an IJ
should always be recused where a case was remanded to her after she made an adverse credibility
finding]; Jarbough v. U.S. Att’y Gen., 483 F.3d 184, 192–93 (3d Cir. 2007) [it was not improper for IJ to
rebuke attorney for asking leading questions]; Apouviepseakoda v. Gonzales, 475 F.3d 881, 884–89
(7th Cir. 2007) [although IJ’s conduct “was hardly a model of patience and decorum,” it did not impede
applicant’s “reasonable opportunity” to be heard]; Boci v. Gonzales, 473 F.3d 762, 768–69 (7th Cir.
2007) [although IJ cut off line of inquiry, insisted on moving things along, and asked many questions, a
less than desirable demeanor, in and of itself, does not violate due process]; Ishak v. Gonzales, 422
F.3d 22, 31 (1st Cir. 2005) [IJ’s brusque and impatient manner in questioning respondent was not so
obviously biased or unfair that hearing violated due process]; Hassan v. Gonzales, 403 F.3d 429, 436–
37 (6th Cir. 2005) [IJ’s brusque and sarcastic manner is insufficient]; Shoaira v. Ashcroft, 377 F.3d 837,
842–43 (8th Cir. 2004) [IJ’s inappropriate comments scattered through the asylum transcript did not
prejudice respondent and did not violate due process]; Abdulrahman v. Ashcroft, 330 F.3d 587, 595–97
(3d Cir. 2003) [where IJ at times went “beyond the bounds of propriety” denial was not reversed
because of the deferential standard of review of the record]; Kuciemba v. INS, 92 F.3d 496, 501–02
(7th Cir. 1996); Ivezaj v. INS, 84 F.3d 215, 220 (6th Cir. 1996). Nor does the IJ’s statement at the
beginning of the hearing concerning his views of the case amount to a due process violation.Ciorba v.
Ashcroft, 323 F.3d 539, 544–45 (7th Cir. 2003) [IJ announcing at beginning of asylum hearing that he
reviewed documents and thought case was deficient but that he had not made up his mind was not
bias or due process violation]. Moreover, a judge’s vigorous questioning of an applicant does not
violate due process. Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003) [aggressive and
sometimes harsh questioning by IJ during asylum hearing is not a violation of due process]. Nor does
the IJ’s efforts to shorten the hearing or acting stern or short-tempered. Laurent v. Ashcroft, 359 F.3d
59, 62–63 (1st Cir. 2004)[cutting off cumulative or redundant testimony does not violate due process
and the fact that an IJ forms a preliminary opinion about the facts does not render the proceeding
fundamentally unfair]; Albathani v. INS, 318 F.3d 365, 374–75 (1st Cir. 2003) [IJ’s efforts to expedite
the hearing and acting in a stern and short-tempered manner were insufficient to establish due process
violation].
(2) Remanding Case to Different IJ—Several courts and the BIA have on occasion remanded cases back
to the BIA with the request or order that a different IJ be assigned. Matter of Y-S-L-C-, 26 I&N Dec. 688
(BIA 2015) [where IJ belittled 14-year-old respondent and asked inappropriate questions, the IJ’s
denial was vacated and case was remanded to be heard before another IJ]; Serrano-Alberto v. U.S.
Att’y Gen., 859 F.3d 208, 226 (3d Cir. 2017) [where IJ violated respondent’s due process rights at his
hearing court suggested that BIA reassign case to a different judge]; Jabri v. Holder, 675 F.3d 20, 24-
26 (1st Cir. 2012) [post-REAL ID finding that two of the three lack of credibility assessments by the IJ
were wrong and stating that if an evidentiary hearing were held on remand a new judge should be
selected]; Abulashvili v. U.S. Att’y Gen., 663 F.3d 197, 207-09 (3d Cir. 2011) [asylum applicant’s due
process rights were violated where IJ stepped into the role of government attorney to cross-examine
applicant depriving him of a full and fair hearing and the court recommended on remand that the case
be assigned to a different IJ]; Razkane v. Holder, 562 F.3d 1283, 1289 (10th Cir. 2009) [reversing
denial of withholding based on sexual orientation due to IJ’s own prejudicial and stereotypical views of
the appearance, dress and effect of a homosexual and ordering the case be tried before a different IJ if
necessary]; Tekle v. Mukasey, 533 F.3d 1044, 1055–57 (9th Cir. 2008) [reversing IJ/BIA on credibility
issue with suggestion that case be given to another IJ where IJ stated if case returned to him he would
recuse himself]; Mapouya v. Gonzales, 487 F.3d 396, 416 (6th Cir. 2007) [urging BIA on remand to
assign a different IJ where IJ made numerous errors in asylum and withholding hearing but there was
no evidence discussing IJ misconduct]; Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007)
Page 681 [where IJ’s adverse credibility finding in Albanian homosexual persecution claim was based
in part on belief that respondent was not credible because he did not speak, dress or act like a
homosexual, decision was reversed and the court recommended reassignment to a different IJ]; Shah
v. U.S. Att’y Gen., 446 F.3d 429, 437–38 (3d Cir. 2006) [court reversed adverse credibility finding in
Pakistani asylum case, with a suggestion that IJ was looking for ways to deny case; BIA asked to
select a new IJ]; Pavlova v. INS, 441 F.3d 82, 92 (2d Cir. 2006) [vacating IJ’s credibility findings on
asylum and strongly suggesting new IJ on remand]; Wang v. U.S. Att’y Gen., 423 F.3d 260, 271 (3d
Cir. 2005) [where IJ made intemperate and humiliating remarks that failed the basic requirement of
being a neutral and impartial arbiter, the “parties would be far better served by the assignment of these
proceedings to a different IJ”]; Zhang v. Gonzales, 405 F.3d 150, 157–61 (3d Cir. 2005) (McKee, J.,
concurring) [where IJ appears to have decided case before hearing all the testimony because
respondent used the word “persecution,” and “real refugees” do not use that word, case should be
remanded to BIA and new judge assigned]; Nuru v. Gonzales, 404 F.3d 1207, 1229 (9th Cir. 2005)
[where IJ’s comments against asylum applicant during hearing were caustic and without substance
and IJ denied counsel’s request for closing argument and suggested without basis that counsel
coached his witness, court ordered that case be assigned to a new IJ]; Huang v. Gonzales, 403 F.3d
945, 948–51 (7th Cir. 2005) [where IJ exceeded his proper role in questioning the asylum applicant
and his conduct tainted the credibility findings, decision reversed and court encouraged BIA to assign
new IJ]; Korytnyuk v. Ashcroft, 396 F.3d 272, 287 n.20 (3d Cir. 2005) [IJ’s exchanges with respondent
were so troubling that on remand the parties would be better served by a new IJ]; Yi-Tu Lian v.
Ashcroft, 379 F.3d 457, 462 (7th Cir. 2004) [“The inadequate performance of the immigration judge
leads us to recommend that the case be reassigned to another immigration judge”]; Guchshenkov v.
Ashcroft, 366 F.3d 554 (7th Cir. 2004) [criticizing and removing IJs from asylum cases where they did
not present a reasoned decision]; Muhur v. Ashcroft, 355 F.3d 958, 961 (7th Cir. 2004) [in view of IJ’s
“mishandling” of asylum claim by applying an incorrect standard, BIA urged to remand to a different IJ];
Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003) [suggesting new IJ where court found numerous
errors]; Paramasamy v. Ashcroft, 295 F.3d 1047, 1055 n.4 (9th Cir. 2002) [suggesting new IJ after
remand if necessary].
Transfer of case to a new IJ does not mean that all matters should be relitigated. Zhang v. Gonzales,
434 F.3d 993, 996–98 (7th Cir. 2006) [absent exceptional circumstances, such as a change in the law,
new evidence, or compelling circumstances, a new IJ assigned to a case on remand should not make
inconsistent rulings to the prior IJ based merely on differing impressions of credibility]; Ko v. Gonzales,
421 F.3d 453 (7th Cir. 2005) [where first IJ reopened in absentia order and transferred case and
second IJ reversed the first IJ, the second IJ abused his discretion because there was evidence in the
record of lack of notice and litigants have “ a right to expect that a change in judges will not mean
going back to square one”]. And under 8 CFR §1240.1(b) a second IJ need not hold a new evidentiary
hearing where he reviewed and “familiarized” himself with the record before entering an order.
Abdallahi v. Holder, 690 F.3d 467, 471-44 (6th Cir. 2012) [where first IJ heard all the testimony but left
the bench before ruling, the second IJ did not need to hold a new evidentiary hearing and could rule
and enter a final order after reviewing and familiarizing himself with the record]. The Chief IJ takes the
view that the law of the case doctrine applies when a change of venue is granted and absent
exceptional circumstances the receiving judge is “not free to hear the case de novo and ignore any
orders prior to the venue change.” Memo [OPPM 01-02], Creppy, Chief IJ, EOIR (Oct. 9, 2001),
reprinted in 79 No. 3 Interpreter Releases 66, 84–88 (Jan. 14, 2002). The exceptions to the law of the
case include: (1) a supervening rule of law; (2) compelling or unusual circumstances; (3) new evidence
available to the transferee judge; (4) clear error in the previous order resulting in manifest injustice.
(3) IJ At Bond and Removal Hearing—As a constitutional matter, courts have “long recognized that
combining the roles of prosecutor and adjudicator in a single entity is a recipe for fundamentally unfair
and erroneous decision making. See, e.g., Schweiker v. McClure, 456 U.S. 188, 195 (1982)“ Flores v.
Meese, 942 F.2d 1352, 1368 (9th Cir. 1991) (en banc) (Tang, J. concurring), rev’d on other grounds,
Reno v. Flores, 507 U.S. 292 (1993). See also Williams v. Pennsylvania, 579 U.S. __, 136 S.Ct. 1899,
1905-07 (2016) Page 682 [Due process required judge to recuse himself in a case where he
previously served as the prosecutor because “an unconstitutional potential for bias exists when the
same person serves as both accuser and adjudicator in a case”]. The court in Flores-Leon v. INS, 272
F.3d 433, 440 (7th Cir. 2001), however, had no difficulty rejecting a recusal motion based upon a claim
that an IJ may not hear both the bond and merits hearing because 8 CFR §1003.19(d) requires that
they be “separate and apart.” Also, courts have rejected the idea that an IJ’s prior service as chief
counsel in the immigration service office handling the removal cases establishes bias. Shewchun v.
Holder, 658 F.3d 557, 570-71 (6th Cir. 2011) [denied recusal where chief counsel did not have any
direct or indirect contact with respondent’s case]; Abdulahad v. Holder, 581 F.3d 290, 296 (6th Cir.
2009); Petrov v. Gonzales, 464 F.3d 800, 803 (7th Cir. 2006). But see Williams v. Pennsylvania, 579
U.S. __, 136 S.Ct. 1899 (2016) [state Supreme Court justice’s failure to recuse himself regarding a
stay by death row defendant was a due process violation where he served as district attorney in the
case and thus had “significant, personal involvement” in the case]. Similarly, where IJ’s spouse was
one of two supervising Deputy Chief Counsel for ICE in the same district, the court found no basis for
recusal where the Denver ICE office had a plan in place to ensure that the IJ’s spouse had no
involvement in cases pending before the IJ. Lucio-Rayos v. Sessions, 875 F.3d 573, 576-77 (10th Cir.
2017).
(4) Appointment of Temporary IJs—79 FR 39953-56 (July 11, 2014). In light of the substantial case load
of IJs and the hundreds of thousands of cases that are pending, EOIR/DOJ have issued regulations
that permit the Director of EOIR, with the approval of the AG, to select temporary IJs who “shall have
the authority of an immigration judge to adjudicate assigned cases and administer immigration court
matters as provided in the immigration laws and regulations.” 8 CFR §1003.10(e)(2). The CIJ has
responsibility for overseeing and training of temporary IJs who may be former BIA members, former
IJs, ALJs within or retired from EOIR, ALJs from other Executive Branch agencies who have the
consent of their agencies, or DOJ lawyers with at least 10 years of legal experience. The may serve for
renewable terms not to exceed six months. §1003.10(e)(1).
(5) Filing a Complaint Against an IJ—A complaint against an IJ may be filed with either the Assistant
Chief Immigration Judge (ACIJ) for Conduct and Professionalism or the ACIJ supervising the IJ. If the
allegations appear to fall under the jurisdiction of the Office of Professional Responsibility (OPR) or the
Office of Inspector General (OIG), they will be referred to those offices. The complaint can be filed by
mail or electronically to EOIR.IJConduct@usdoj.gov. (See alsohttp://bit.ly/IJConduct.) The complaint
should, at a minimum, contain the following information: (1) the name of the judge; (2) a statement of
what occurred; (3) the time and place of the occurrence; (4) any other information which may be
helpful in investigating the complaint; and (5) complainant’s name, address, telephone number and
any other contact information. DOJ, Instructions for Filing a Complaint Regarding an Immigration
Judge’s Conduct, EOIR, AILA Doc. No. 10051768. The “Instructions” also note that: “Generally
disciplinary actions are progressive. Supervisory judges take the least severe action necessary to
correct a problem, followed by increasingly severe measures when an IJ fails to correct a problem after
a reasonable opportunity to do so. Where the conduct warrants it, serious disciplinary action may be
imposed in the first instance. When imposing discipline, the deciding official [usually the Deputy Chief
Immigration Judge] … will consider factors noted in Douglas v. Veteran’s Administration, 5 MSPB 313
(MSPB 1981)…” DOJ, Instructions, supra. The deciding officials are also governed by the contract with
the National Association of Immigration Judges. EOIR v. National Ass’n of Immigr. Judges, 66 FLRA
No. 41 (Sept. 30, 2011) [upholding the arbitrator’s reversal of any penalty against the IJ because the
imposition of the penalty was not timely, did not involve egregious conduct, and was not for just cause
or promote the efficiency of the federal service]. EOIR in agreement with the National Association of
Immigration Judges has issued ethical and professional standards for IJs governing a broad range of
conduct including demeanor, conflicts of interest, judicial temperament, appearance of impropriety, ex
parte communications, and outside employment and activities. EOIR/NAI, Ethics and Professionalism
Guide For Immigration Judges (Jan. 31, 2011), AILA Doc. No. 11040433 [“The provisions in this Guide
are binding on all Immigration Judges employed by the Executive Office for Immigration Review.
Violation of these provisions may be used to challenge the rulings of an Immigration Judge … [but] …
violations of these Page 683 provisions [do not] furnish the basis for civil liability or injunctive relief”].
For a listing of charges against specific IJs (Mar. 18, 2014), see generally, FOIA Response from EOIR
Regarding IJ Charges, AILA Doc. No. 13111458. AILA has unsuccessfully sought to get the complaints
by name filed against individual IJs and the resolutions of those complaints. AILA v. EOIR, 76
F.Supp.3d 184 (D.D.C. 2014) appeal pending [AILA provided complaints against IJs but court upheld
redaction of IJs personal identification under FOIA Exemption 6 regarding the complaints as well as
the resolution of them].
(a) IJ Defense to Challenge by Agency—IJ who is Iranian-American subject to blanket recusal order
prohibiting her from hearing Iranian cases had right to Civil Service Reform Act and Title VII claims,
but was barred from constitutional challenges due to preclusion under CSRA. Tabaddor v. Holder,
156 F.Supp.3d 1076 (C.D. Cal. 2015) [constitutional claims are barred under the CSRA, but not
Title VII for adverse employment action and retaliation].
(6) Immunity from Suit—One circuit has determined that IJs are absolutely immune from suit. Stevens v.
U.S. Att’y Gen., 877 F.3d 1293 (11th Cir. 2017) [suit for damages and injunctive relief not permitted
against IJ Cassidy for his refusal to allow a reporter/researcher to view his individual hearing and for
directing security to escort her out of the building]; See also Hernandez-Ortez v. Godinez, No. 88-C-
5925, 1988 WL 129997 (J. Kocoras) (N.D. Ill. Nov. 30, 1988) [relying on Cleavinger v. Saxner, 474
U.S. 193 (1985) and Butz v. Economou, 438 U.S. 478 (1978)].
(7) Obtaining Complaint Records—AILA v. EOIR, 830 F.3d 667 (D.C. Cir. 2016) [despite substantial
interest under Exemption 6 in privacy of IJs’ names subject to discipline, a blanket rule excluding the
information was improper because there is a “variety in types of complaints and circumstances”
including a retired IJ who may have a greater privacy interest than a sitting one and an IJ who may
have more complaints and whose identity is therefore of greater public interest]. However, the Court in
AILA v. EOIR at 679-80 also determined that EOIR was not required to release complaint resolution
decisions of IJs.
(8) Completion Quotas for IJs—An IJ will now be judged in part on how many cases he or she completes
in a year. To achieve a satisfactory rating an IJ must complete at least 700 cases per year, be
remanded by BIA or circuit courts less than 15% and meet other benchmarks. A completion rate of
more than 560 but less than 700 is considered needing improvement; less than 560 is unsatisfactory
as is a remand rate greater than 20%. Memo, McHenry, Director EOIR, Immigration Judge
Performance Metrics (Mar. 30, 2018), AILA Doc. No. 18040301.
7.kk. Right to Communicate with Embassy
8 CFR §§236.1(e), 1236.1(e); Art. 36 of Vienna Convention on Consular Relations; Fed. R. Crim. P. 5, 58.
(1) In General—Detained aliens must be notified that they may communicate with the consul or
diplomatic officer of the country of their nationality where country is on the treaty list. 8 CFR
§§236.1(e), 1236.1(e). Under the Federal Rules of Criminal Procedure, federal judges must now notify
defendants charged with a felony or a petty offense or misdemeanor that if he is not a USC he may
request that an attorney or federal law enforcement official notify a consular officer from the
defendant’s country. Fed. R. Crim. P. 5, 58. DHS has an obligation to provide notification even if the
person is in nonimmigration federal custody as long as a deportation proceeding is held. Waldron v.
INS, 17 F.3d 511, 515–16 (2d Cir. 1994). Under treaties with certain countries, the consulates of those
countries must be notified whenever a national of the country, who is not a citizen of the U.S., is placed
in immigration custody, whether or not the individual wishes the country to be informed. These
countries include the UK, China, Russia, Jamaica, Ukraine and many others. See Consular Notification
and Access, DOS, Third Edition (Sept. 2010), AILA Doc. No. 10091460 at 4 for list of countries. It
covers all noncitizens even if illegal or long term LPRs. Id. at 14 [covers persons without immigration
documentation or any noncitizen, including those in immigration custody]. A person who is a U.S.
citizen and a national of another country may be treated exclusively as a U.S. citizen and consular
notification is not required. Id. at 14. Under DOS Guidelines a person should be notified pursuant to
Article 36 of the Vienna Convention on Consular Relations at time of booking but may be Page 684
notified at the time of questioning or being given Miranda warning. See Consular Notification and
Access, supra at 21-22. If the arrest is made by the DOJ, federal prosecutors must provide the notice
to the detainee or the consulate. 28 CFR §50.5. Mexican consulates in the U.S. within the framework
of the Memorandum of Understanding, Joint Declaration and working group between the U.S. and
Mexico have entered into 30 local “arrangements” with CBP, ICE and DHS regarding the requirement
of consular notification to every detained Mexican national. See e.g., News Release, U.S. and Mexico
Sign Updated Repatriation Arrangements (Feb. 23, 2016), AILA Doc. No. 16030205; Local
Arrangement for the Repatriation of Mexican Nationals (Consul General of Mexico in Houston and
DHS and the ICE and CBP Field Offices in Houston), AILA Doc. No. 09092968.
(2) Effect of Failure to Notify—Under Ninth Circuit law the failure to notify alien of his right to contact his
country’s consulate or embassy may result in reversal of a deportation order where he produces
evidence that: (1) he did not know of right; (2) he would have availed himself of the right had he known
of it; and (3) there was a likelihood that the contact would have resulted in assistance to him in
resisting deportation. U.S. v. Rangel-Gonzalez, 617 F.2d 529, 533 (9th Cir. 1980) [challenge to
underlying deportation order in illegal reentry context]. The defendant would also have to demonstrate
that violation of the regulation “prejudiced [his] interests.” U.S. v. Cerda-Pena, 799 F.2d 1374, 1377
(9th Cir. 1986) [same]. See also U.S. ex rel. Madej v. Schomig, 223 F.Supp.2d 968, 977–80 (N.D. Ill.
2002) [applying Convention and the International Court of Justice ruling in LaGrand Case (Germany v.
U.S.), 2001 I.C.J. 104 (June 27) to vacate death penalty because notification to consul could have
made a difference at death penalty phase]. Failure to provide notification may also give rise to an
ineffective assistance of counsel claim. Osagiede v. U.S., 543 F.3d 399 (7th Cir. 2008) [conviction for
distribution of heroin vacated where defendant’s counsel had obligation to raise lack of notification
issue; case remanded for prejudice issue to determine whether consulate could have and would have
assisted citizen]. But see Torres De La Cruz v. Maurer, 483 F.3d 1013, 1023–24 (10th Cir. 2007) [the
default rules specified in Sanchez-Llamas barred claim that Article 36 was violated as to LPR in
removal proceeding because LPR did not raise the issue with the IJ and the BIA determined it was
waived]; Rosales v. ICE, 426 F.3d 733, 736–38 (5th Cir. 2005) [where respondent was not informed of
rights under the Vienna Convention he did not succeed on his due process claim because there was
no showing of prejudice]. DOS also is of the view that a foreign national found inadmissible at a port of
entry and required to remain there until she can depart does not trigger consular notification. Consular
Notification and Access, supra at 19.
(3) Notification Regarding Minors—Federal officials must provide notice to parents immediately after a
juvenile is taken into custody, or if notification to the parents is not feasible, then to the appropriate
consulate in lieu of parental notification. Where there is no showing that parental notification is
infeasible, federal officials cannot avoid the obligation of parental notification by getting the juvenile to
waive consular notification. U.S. v. D.L., 453 F.3d 1115, 1123 and n.6 (9th Cir. 2006).
(4) Violation of Article 36—Under Fed. R. Crim. P. 5(d) and the committee notes at Rule 5(d)(1)(F) any
defendant who is arraigned who is not a USC must now be advised by a federal judge that he may
request that an Assistant U.S. Attorney or federal law enforcement official notify a consular officer from
the defendant’s country and that even without the defendant’s request a treaty or international
obligation may require notification. The violation of Article 36, however, (as distinguished from violation
of the DHS regulation on consular notification, 8 CFR §§236.1, 1236.1) does not create an enforceable
right.Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) [in criminal proceeding suppression of evidence
is not an appropriate remedy for an Art. 36 violation and regular state rules of procedural default apply
to bar Article 36 claims]; Medellin v. Texas, 552 U.S. 491 (2008) [the International Court of Justice
decision, Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. 12 (Mar.
31, 2004), finding the U.S. had violated Article 36(1)(b), was not enforceable in a state court to
preempt state limitations on filing successive habeas petitions, notwithstanding the President’s
Memorandum directing enforcement, because the decision was not “self-executing” and the remedy
under the Treaty is referral to the U.N. Security Council]. Post-Medellin the ICJ ordered the U.S.
government to “take all measures necessary to ensure that Page 685 [certain persons] are not
executed pending judgment,” reprinted in 85 No. 29 Interpreter Releases 2029-31 (July 28, 2008). The
Supreme Court, nevertheless declined to issue a stay despite the Solicitor General’s claim that in light
of the ICJ order the U.S. would be in “irreparable breach” of its obligations under international law.
Garcia v. Texas, 564 U.S. 940 (2011). See also Cardenas v. Stephens, 820 F.3d 197, 202-04 (5th Cir.
2016) [post-Medellin the court determined that Avena has no force of law, the Vienna Convention
contains no judicially enforceable rights, and the subsequent decision from the IACHR has no
domestic legal force]; Loza v. Mitchell, 766 F.3d 466, 497-500 (6th Cir. 2014) [post-Medellin and
President Bush’s directive, Article 36 does not create an enforceable individual right, citing circuit
cases]; Rocha v. Thaler, 619 F.3d 387, 407-08 (5th Cir. 2010) [followed Sanchez-Llamas in death
penalty case]; Mora v. New York, 524 F.3d 183, 193–207 (2d Cir. 2008) [no private right of action for
damages for failure to inform of the availability of consular notification]; U.S. v. De La Pava, 268 F.3d
157, 163–66 (2d Cir. 2001) and cases cited therein [no fundamental right implicated by failure to give
consular notification and indictment should not be dismissed]; Maldonado v. Thaler, 662 F.Supp.2d
684, 735–40 (S.D. Tex. 2009) [in death penalty case there was no enforceable right under Article 36];
Matter of Rivera-Valencia, 24 I&N Dec. 484, 491–92 (BIA 2008) [court-martial is a conviction under
INA §101(a)(48)(A) and Art. 36 cannot be basis to collaterally attack the conviction].
(5) Civil Damages—Failure to notify an individual of his right to consular assistance may result in an
action for civil damages and injunctive relief. Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) [allowing
noncitizen convicted of aggravated battery and deported to bring civil rights claim under §1983 for
failure of state officials to notify him of Article 36 rights]; Villars v. Kubiatowski, 45 F.Supp.3d 791, 803-
04 (N.D. Ill. 2014) [followed Jogi and denied motion to dismiss complaint against village and police for
failure to notify defendant of his right to communicate with consular officer]. But see Gandara v.
Bennett, 528 F.3d 923 (11th Cir. 2008) [Convention does not provide for private damages action]; Mora
v. New York, 524 F.3d 183 (2d Cir. 2008) [no private right of action for damages for failure to inform
person of the availability of consular notification]; Cornejo v. County of San Diego, 504 F.3d 853 (9th
Cir. 2007) [Article 36 does not create an independent enforceable right under §1983 for Mexican
nationals who were not advised of their consular rights]; Estate of Gomes v. County of Lake, 178
F.Supp.3d 687, 698-99 (N.D. Ill. 2016) [failure by defendants at Lake County jail to notify decedent of
her right under Article 36 to contact the Indian consulate was not actionable because plaintiff failed to
assert claim and there was no evidence connecting death with failure to advise]; Bieregu v. Ashcroft,
259 F.Supp.2d 342, 352–54 (D.N.J. 2003) [no ATCA claim for violation of Article 36 because there is
no tort].
7.ll. Relation Back Doctrine—The BIA recognizes that a declaration of an invalid marriage could relate back
to the date of the marriage for immigration purposes absent fraud, misrepresentation or manipulation.
Matter of Astorga, 17 I&N Dec. 1, 4 (BIA 1979). However, the doctrine is only applied “where to do so
would bring about a just result,” Matter of Magana, 17 I&N Dec. 111, 114 (BIA 1979) [rejecting relation
back doctrine where respondent believed to have committed fraud], and may therefore not cure a
misrepresentation when made to obtain a visa. McCreath v. Holder, 573 F.3d 38, 42 (1st Cir. 2009)
[affirming BIA’s refusal to exercise discretion favorably under Matter of Magana]; Garcia v. INS, 31 F.3d
441 (7th Cir. 1994) [where IJ determined that respondent in deportation proceeding for misrepresentation
in obtaining 2nd preference approval intended to misrepresent marital status, the decision by foreign court
determining marriage was void ab initio not sufficient to cure misrepresentation]; Hendrix v. INS, 583 F.2d
1102 (9th Cir. 1978).
8. Summary (Expedited) Removal for Nonresident Aggravated Felons
INA §238(b), 8 USC §1228(b), 8 CFR §§238.1, 1238.1 et seq.
8.a. Establishes a nonjudicial summary proceeding for nonresidents who DHS seeks to deport as
aggravated felons. ICE conducts these proceedings through trial attorneys, except that the person
initiating the charges shall not enter the final order. 8 CFR §1238.1(a). Respondent is served with an I-851
and has 10 days to respond if personally served, or 13 calendar days if served by mail. 8 CFR §§238.1(c),
1238.1(c). Page 686
8.b. Applies to persons who are not LPRs. Also applies to conditional residents. Some courts have found
that the statute also applies to parolees and persons who entered EWI notwithstanding the statutory
language making the statute applicable to aggravated felons and thus only to persons who commit
aggravated felonies “after admission.”Valdiviez-Hernandez v. Holder, 739 F.3d 184, 188-92 (5th Cir. 2013)
[court read “after admission” in context of congressional intent and found that applicant who committed
agg. felony subsequent to unlawful entry was nevertheless subject to expedited removal]. See also
Bamba v. Riley, 366 F.3d 195 (3d Cir. 2004);U.S. v. Hernandez-Vermudez, 356 F.3d 1011 (9th Cir. 2004);
Bazan-Reyes v. INS, 256 F.3d 600, 604–05 (7th Cir. 2001).
8.c. Person must be given reasonable notice of the charges, an opportunity to inspect the evidence and
rebut the charges. INA §238(b)(4)(A); 8 CFR §§238.1(b)(2) and (c), 1238.1(b)(2) and (c). U.S. v. Valdivia-
Flores, 876 F.3d 1201, 1205-06 (9th Cir. 2017) [in INA §238(b) proceeding defendant did not knowingly
and intelligently waive his right to appeal despite signing waiver form because the form did not explicitly
inform him that he could refute the legal conclusion that he was an aggravated felon]; U.S. v. Lopez-
Collazo, 824 F.3d 453, 460-62 (4th Cir. 2016) [respondent in INA §238(b) expedited removal proceeding
who did not speak or understand English was deprived of due process when he was issued an I-851
Notice of Intent to Issue Final Administrative Removal Order solely in English, although no prejudice was
demonstrated]. She has a right to counsel and shall be notified of that right. INA §238(b)(4)(B); 8 CFR
§238.1(b)(2)(iv). U.S. v. Reyes-Bonilla, 671 F.3d 1036, 1045-46 (9th Cir. 2012) [failure to advise petitioner
of his right to counsel in a language he understands violated his right to counsel]. But failure to provide
notice is not per se a violation of due process, at least in one circuit, without a showing of prejudice.
Gomez-Velazco v. Sessions, 879 F.3d 989 (9th Cir. 2018) [a divided panel determined that in an INA
§238(b) proceeding, respondent must show prejudice]. DHS must provide a written translation of the
notice of intent to remove (NOI) or explain the contents in the respondent’s native language. 8 CFR
§1238.1(b)(v). An order can be entered only if there is clear, convincing and unequivocal evidence of
removal or the alien’s concedes removability. 8 CFR §1238.1(d). An order of summary deportation may
not be executed until 14 days after its issuance, unless waived by the respondent. INA §238(b)(3); 8 CFR
§§1238.1(d), (f). But see Aguilar-Aguilar v. Napolitano, 700 F.3d 1238, 1245 (10th Cir. 2012) [Where DHS
entered a final order upon service of the Notice of Intent without permitting respondent the opportunity to
respond, due process was not violated because respondent does not contest the fact of his removability
and his desire to have had an opportunity to argue for AOS is not a protected liberty interest].
8.d. Conclusive presumption of deportability. INA §238(c).
8.e. Material Issue in Dispute—If there is a material issue in dispute raised by the person’s response, the
officer may seek additional evidence from other sources or she may issue a notice to appear at an INA
§240 proceeding. 8 CFR §1238.1(d)(2)(ii)(A).
8.f. No discretionary relief available because the AG is barred from granting any relief. INA §238(b)(5), U.S.
v. Gonzalez, 429 F.3d 1252 (9th Cir. 2005) [8 USC §1228(b)(5), which bars discretionary relief for non-
LPR aggravated felon subject to expedited removal could be retroactively applied]; but see Matter of
Michel, 21 I&N Dec. 1101 (BIA 1998) [INA §212(h) availability]; U.S. v. Arrieta, 224 F.3d 1076, 1080–81
(9th Cir. 2000) [rejecting argument that §1228(b)(5) bars all relief for aggravated felons including those
who are not in expedited removal]. However, the person may seek protection under withholding and CAT.
8 CFR §§208.31, 1208.31, 1238(c)(1). If the detainee was not provided an initial “reasonable fear”
determination, is in custody under a reinstated removal order or an order under INA §238(b), and has
expressed a fear of returning to her country, a class settlement in Alfaro-Garcia v. Johnson, No. 14-cv-
01775-YGR (N.D. Cal. 2015) at docket entries 104, 104-1, 133 requires ICE to refer her “immediately, as
practicable, to USCIS” for a reasonable fear determination.
8.g. Judicial review by habeas was abolished for persons convicted of many crimes, INA §§242(a)(2)(C), (a)
(5). However, review remains in the court of appeals for constitutional questions and questions of law. INA
§242(a)(2)(D), 8 USC §1252 (a)(2)(D). Flores-Ledezma v. Gonzales, 415 F.3d 375, 379–81 (5th Cir. 2005)
[REAL ID Act enacting INA §242(a)(2)(D) Page 687 preserved review of constitutional claims and
questions of law for summary removal proceedings under INA §238(b) notwithstanding §242(a)(2)(C) or
§242(g)]. But a respondent seeking to preserve a legal issue must exhaust her remedies by challenging
the decision in the summary removal proceeding. Malu v. U.S. Att’y Gen. 764 F.3d 1282, 1287-89 (11th
Cir. 2014) [failure to contest whether battery was an aggravated felony subjecting respondent to expedited
removal was a failure to exhaust administrative remedies under INA §242(d)(1) and the court was barred
from considering removal order]. But see Victoria-Faustino v. Sessions, 865 F.3d 869 (7th Cir. 2017) [court
has jurisdiction to determine whether the underlying crime on which expedited removal was based is an
aggravated felony]Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013) [noting only factual
issues may be challenged in an expedited removal proceeding] and Eke v. Mukasey, 512 F.3d 372, 378
(7th Cir. 2008) [court could consider aggravated felony classification].
8.h. Constitutionality and retroactivity of the summary removal procedure upheld. Graham v. Mukasey, 519
F.3d 546, 551 (6th Cir. 2008) [expedited removal procedure does not violate due process, because there
was no prejudice, and does not violate equal protection, because there is a rational basis]; U.S. v.
Calderon-Segura, 512 F.3d 1104, 1107–08 (9th Cir. 2008) [proceedings under 8 USC §1228(b) did not
violate equal protection under rational basis test on claim that persons similarly situated may or may not
be placed in expedited removal]; Gonzalez v. Chertoff, 454 F.3d 813, 816–18 (8th Cir. 2006) [following
Fernandez-Vargas and finding that application of 238(b) to a 1988 conviction was not impermissibly
retroactive; no equal protection claim]; Flores-Ledezma v. Gonzales, 415 F.3d 375, 381–82 (5th Cir. 2005)
[rational basis for giving the AG the choice to institute summary removal under INA §238(b) or
proceedings before an IJ for nonresidents where relief may be obtained]; U.S. v. Rangel De Aguilar, 308
F.3d 1134, 1138 (10th Cir. 2002) [constitutionality of procedure for taking a waiver of hearing under
§1228(b)(4) upheld where defendant challenged the lack of a neutral magistrate to take the waiver and
the lack of an audible record]; U.S. v. Benitez-Villafuerte, 186 F.3d 651, 659-60 (5th Cir. 1999) [statute
meets minimum due process notice requirements and the commingling of prosecutorial and adjudicative
functions is permissible]; Ogundipe v. DHS, 295 F.Supp.2d 513, 517 (E.D. Pa. 2003) [expedited process
does not violate due process]; Bamba v. Elwood, 252 F.Supp.2d 195, 203–06 (E.D. Pa. 2003) [no due
process violation regarding opportunity to be heard, adequate time to respond, or inability to return]. See
also Avila v. U.S. Att’y Gen., 826 F.3d 662, 668-70 (3d Cir. 2016) [concurrently proceeding under INA
§238 summary removal and a previously initiated INA §240 proceeding did not violate respondents due
process or statutory rights where the 240 proceeding was terminated a brief period after INA §238
proceedings were initiated]. Similarly, a statutory challenge to INA §238 was also rejected. Osuna-
Gutierrez v. Johnson, 838 F.3d 1030, 1033-34 (10th Cir. 2016) [notwithstanding INA §242(b)(2) and 8
USC §1229a(a)(1), Congress intended to permit deportation decisions to be made by DHS officers ].
9. Expedited Removal Proceedings for Persons Serving Prison Sentences
INA §238(a), 8 USC §1228(a); EOIR, Uniform Docketing System Manual (Dec. 2013) at Intro 9-10, III-3, AILA
Doc. No. 14100644[describing Institutional Hearing Program for persons in prison serving sentences]. The
Institutional Hearing Program provides in-person and video teleconference proceedings while the person is
serving their criminal sentence. For the list of federal correctional institutions and penitentiaries where they
are conducted, see Fact Sheet, EOIR, Institutional Hearing Program (Jan. 2018), AILA Doc. No. 18011061.
9.a. Provides for removal proceedings for persons detained in federal, state and local prisons. INA §238(a)
(1), 8 USC §1228(a)(1). Includes any person convicted of: aggravated felonies, drugs, firearms, 2 CIMTs
committed within 5 years of entry and miscellaneous crimes under 237(a)(2)(D). INA §238(a)(1).
9.b. Requires hearing to be conducted in a manner which eliminates the need for additional detention at a
DHS processing center and that assures expeditious deportation where warranted following the end of the
sentence. Requires AG to provide for special deportation proceedings at prisons so that the initiation and,
if possible, the completion of deportation proceedings can occur before the end of the prison sentence.
Conducting a deportation and §212(c) hearing in a prison did not per se violate due process. Burgos-Abril
v. INS, 58 F.3d 475 (9th Cir. 1995). Page 688
9.c. Aliens shall be detained to the maximum extent possible at facilities where other such aliens are
detained and the AG shall make reasonable efforts to ensure access and right to counsel under INA §292
are not impaired. Must be detained consistent with section 236(c). INA §238(a)(2).
9.d. The AG shall have 30 days to effect person’s departure who has been convicted of one of the crimes
recited above. The AG may waive it if the person is cooperating with law enforcement authorities or for
national security reasons.
9.e. An alien convicted of an aggravated felony shall be conclusively presumed deportable. INA §238(c), 8
USC §1228(c). DHS still has the burden of proving alienage. In the case of aggravated felons, the AG is
mandated to initiate and complete removal proceedings when the person is incarcerated for the
aggravated felony.
9.f. The passage of INA §238(a) does not limit the discretion of prison officials to change security
classifications. Mohammed v. Sullivan, 866 F.2d 258, 260 (8th Cir. 1989) [under former version of statute
at 8 USC §1252(a)]. Nor does INA §238(a) create a private right of action by a detained alien to an
expedited deportation hearing. INA §238(a)(1) [“Nothing in this section shall be construed to create any
substantive or procedural right or benefit that is legally enforceable by any party against the United States
or its agencies or officers or any other person”]. INTCA §225 [“No amendment made by this Act and
nothing under INA §242(i) shall be construed to create a substantive or procedural right”]; Campos v. INS,
62 F.3d 311 (9th Cir. 1995); Hernandez-Avalos v. INS, 50 F.3d 842 (10th Cir. 1995); Channer v. Hall, 112
F.3d 214 (5th Cir. 1997); Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990), or a right of an excludable alien
to expedited treatment. Lopez-Mejia v. INS, 798 F.Supp. 625 (C.D. Cal. 1992) [does not apply to person in
exclusion]. Moreover, a party may be entitled to an expedited hearing only when she is in DHS custody.
Paulino v. Connery, 766 F.Supp. 209, 211–12 (S.D.N.Y. 1991) [expedited proceeding only applicable after
person is in INS custody]. In any event, INA §238(a) does not compel physical deportation prior to
completion of sentence. Perez v. INS, 979 F.2d 299 (3d Cir. 1992).
(1) Government’s conduct under this program severely criticized. Fadare v. Reno, 819 F.Supp. 1196
(E.D.N.Y. 1993) [INS required to show cause for failure to initiate deportation proceeding before
completion of sentence]; Iheme v. Reno, 819 F.Supp. 1192 (E.D.N.Y. 1992) [chastising government for
delay in deportation proceedings]; Nwankwo v. Reno, 819 F.Supp. 1186 (E.D.N.Y. 1993) [mandatory
detention provision does not give AG right to ignore speedy disposition requirement under INA
§242(c)].
9.g. Relief Unavailable—Many forms of relief including asylum, cancellation, and VD are not available to
aggravated felons. See, e.g., INA §§208(b)(2)(A), 240A(a)(3), 240B(a)(1). Aggravated felons are
considered persons convicted of particularly serious crimes under INA §241(b)(3)(B)(ii) for purposes of
withholding of removal. However, if a person was not sentenced to 5 years for an aggravated felony
conviction, then the AG may determine that the person has not been convicted of a particularly serious
crime. See “Particularly Serious Crime, Danger to the Community,” in Chapter 4, ¶ IV.H.3 (p.805), infra.
10. Stipulated Judicial Order of Deportation—Pursuant to Fed. R. Crim. P. 11, a person subject to removal
may waive his or her right to a hearing and stipulate to a judicial order of deportation as a condition of the
plea agreement. INA §238(c)(5), 8 USC §1228(c)(5). If he stipulates, a judge or magistrate may order
deportation as a condition of probation. 18 USC §3563(b)(21).
11. Judicial Deportation
INA §238(c), 8 USC §1228(c)
11.a. District Court May Enter Order of Removal or Grant Relief to Criminal Defendant—The district court
judge has authority to enter the order “at the time of sentencing.”
11.b. Procedure—The U.S. Attorney initiates the process by filing with the U.S. district court prior to
commencement of the trial or entry of a guilty plea, a notice of intent to request judicial deportation, which
shall be served upon the defendant and DHS. INA §238(c)(2)(A). At least 30 days prior to the date set for
sentencing, the U.S. Attorney with the concurrence of the Commissioner shall file removal charges with
the court regarding the alienage of the defendant and identifying the crimes which make him or her
deportable under INA §237(a)(2)(A) for crimes involving moral turpitude, aggravated felonies, high speed
flight, and failure to register as a sex offender. INA §238(c)(2)(B). Page 689 A defendant cannot initiate
the process. U.S. v. Flores-Uribe, 106 F.3d 1485, 1487 (9th Cir. 1997); U.S. v. Camacho, 738 F.Supp.2d
240, 242 (D. Mass. 2010) [dismissed defendant’s argument where there was no concurrence by the AG
with ICE and the procedure was not followed]. In the view of one court, the government’s failure to comply
with the procedural rights established in §238(b)(2) will not reverse a deportation order absent proof that
the government’s lapse affected the defendant’s “substantial rights.” U.S. v. Nguyen, 255 F.3d 1335,
1345–47 (11th Cir. 2001) [where government failed to raise alienage in papers, the lack of notice and
violation of §238(b)(2) would not alter the order of deportation absent a showing that the defendant’s
“substantial rights” were affected]. If the defendant has presented substantial evidence to establish prima
facie eligibility for relief, the Commissioner shall provide the court with a recommendation and report. The
court shall either grant or deny the relief sought. The defendant shall have an opportunity to review and
cross-examine the witnesses and the evidence and present witnesses on his own behalf. However, the
court shall only consider evidence admissible in INA §240 proceedings. If the district judge denies the
request to remove, the AG may initiate deportation proceedings under INA §240. See generally Memo,
Meissner, Comm. INS, CO 766.9 (Feb. 22, 1995), reprinted in 72 No. 13 Interpreter Releases 449, 462
(Mar. 31, 1995).
11.c. Appeal—To circuit court, consistent with INA §242.
12. Terrorist Removal Courts—Congress established special provisions for the removal of persons suspected
of being terrorists in AEDPA §401(a) et seq. (as amended under IIRIRA §354), INA §501 et seq., 8 USC
§1531 et seq.
12.a. Establishes a special court of 5 U.S. district court judges designated by the Chief Justice who will hear
terrorist alien cases initiated by the AG through application to the court for someone who the AG believes
meets the definition of terrorist under INA §237(a)(4)(B), 8 USC §1227(a)(4)(B). The situs of the court will
be the U.S. Courthouse in the District of Columbia. A single judge may grant the request/application for
the hearing.
12.b. The hearing is expedited but open to the public. INA §504(a). There is a right to appointed counsel if
the person is “financially unable to obtain counsel.” The burden of proof on the government is by a
preponderance of the evidence and the Federal Rules of Evidence do not apply. Although the respondent
may introduce evidence, cross-examine witnesses and subpoena persons nationwide, the government
may introduce classified information that the respondent has no right to review nor suppress, even if
unlawfully obtained. INA §504(e)(1), (3). Request for subpoenas under Rule 12 of the Court Rules must
be made to the court at least 10 days prior to the removal hearing. The government is to provide the
respondent a summary of the classified information unless the judge determines that the person’s
continued presence would cause serious and irreparable harm to national security and death or serious
injury to any person. If the judge makes this determination and if respondent is an LPR, the other special
procedures apply, including the fact that a special attorney is appointed to review the confidential material
and if he discloses it to his client it is a criminal offense. INA §504(e)(3)(F).
12.c. Respondent has no right to seek asylum, withholding, cancellation, VD, AOS or registry. INA §504(k).
However, a removal order may not be executed that would violate the Convention Against Torture after
the Secy. of State and the AG confer. 28 CFR §200.1.
12.d. Expedited Appeal—Must file notice within 20 days in D.C. Circuit and court must render a decision
within 60 days. INA §505(a)(1), (c)(4)(B).
12.e. Detention and Removal—Only an LPR may seek release pending a removal determination if the AG
decides to detain. INA §506(a)(2)(A). The judge’s decision is not subject to review except if AG wishes to
appeal. If judge decides person should be removed, they are detained pending removal even if previously
released. If AG cannot remove, she must give respondent a report every 6 months on success in
obtaining removal. INA §507(b)(2)(C).
12.f. There is no judicial review of the continued detention except in the D.C. Circuit and then only to
challenge the constitutionality of detention. INA §505(e)(2).
12.g. Respondent can designate the country of deportation but AG need not agree if deportation to that
country would impair a treaty obligation or adversely affect U.S. foreign policy. INA §507(b)(2)(B). Page
690
13. Reinstatement of Removal Order
INA §241(a)(5), 8 USC §1231(a)(5), 8 CFR §§241.8, 1241.8
13.a. In General—Where AG finds a person removed or given VD under an order of removal re-enters the
U.S. illegally, DHS can reinstate the prior order of removal and the respondent may not seek to reopen the
original order, review the reinstated order, or seek relief from removal. To reinstate the removal order,
DHS must ascertain: (1) whether the person has been subject to a prior order of removal; (2) whether the
noncitizen is the same person who was previously removed (identity issue); and (3) whether the person
unlawfully reentered the U.S. 8 CFR §§241.8(a)(1)-(3), 1241.8(a)(1)-(3). The statute encompasses
exclusion, deportation, removal, as well as expedited and stipulated removal orders. Tellez v. Lynch, 839
F.3d 1175 (9th Cir. 2016) [an expedited removal order at a U.S. border-crossing checkpoint is an entry for
purposes of the reinstatement provisions “reentry” requirement]; Warner v. Ashcroft, 381 F.3d 534, 537–
38 (6th Cir. 2004); Delgado v. Mukasey, 516 F.3d 65, 67 (2d Cir. 2008) [INA §241(a)(5) applicable to
reentry after expedited removal order]; Ramirez-Molina v. Ziglar, 436 F.3d 508, 510 (5th Cir. 2006)
[applying INA §241(a)(5) to stipulated removal order]. An illegal reentry for purposes of this provision may
include reentry with a photo-switch passport. Beekhan v. Holder, 634 F.3d 723 (2d Cir. 2011). It may also
include entry that is procedurally legal but not otherwise legal due to a prior removal order. Martinez v.
Johnson, 740 F.3d 1040, 1043 (5th Cir. 2014) [successfully deceiving immigration officials into providing
facially valid documents does not constitute permission to reenter or legal reentry]; Tamayo-Tamayo v.
Holder, 725 F.3d 950 (9th Cir. 2013) [person admitted on fraudulent “green card” is subject to
reinstatement; Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) distinguished]; Cordova-Soto v. Holder,
659 F.3d 1029, 1034 (10th Cir. 2011) [limiting Matter of Quilantan to AOS and finding that a procedurally
regular but illegal entry does not bar a reinstatement order]. There is no right to a hearing before an IJ
under DHS regulations, although INA §241(a)(5) is silent. 8 CFR §§241.8(a), 1241.8(a). Ponta-Garcia v.
U.S. Att’y Gen., 557 F.3d 158, 161–64 (3d Cir. 2009) [regulation permitting DHS officer to render decision
instead of IJ is a reasonable construction of the statute and does not violate due process]; Garcia-Villeda
v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) [regulation permitting administrative reinstatement without IJ
is constitutional and a permissible interpretation of §241(a)(5)]; Lorenzo v. Mukasey, 508 F.3d 1278,
1283–84 (10th Cir. 2007) [regulation does not violate due process by limiting hearing to DHS officer];
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc) [DHS regulation regarding the
procedure for reinstatement of removal cases that permits removal without a hearing before the IJ is not
inconsistent with INA §241(a)(5) under Chevron and removal before a DHS officer does not violate due
process or the right to counsel]; De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1279–83 (11th Cir. 2006) [
8 CFR §241.8 allowing immigration officers to carry out the ministerial task of reinstating existing removal
orders constitutes a permissible interpretation of both INA §240(a) and §241(a)(5)]; Ochoa-Carrillo v.
Gonzales, 437 F.3d 842, 845 (8th Cir. 2006) [ 8 CFR §241.8 permitting reinstatement through a DHS
officer is a valid interpretation of the reinstatement statute]; Lattab v. Ashcroft, 384 F.3d 8, 17–20 (1st Cir.
2004)[under Chevron deference regulations permitting reinstituting removal without a hearing before IJ
are not inconsistent with 241(a)(5)]; Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007) [the IJ has no authority
to reinstate a prior order of removal or deportation and proceedings were properly terminated on DHS’s
motion]. A person’s parole into the U.S. does not prohibit ICE from initiating reinstatement of removal.
Ramirez-Mejia v. Lynch, 794 F.3d 485, 491-92 (5th Cir. 2015) [grant of parole of immigration does not
prevent the reinstatement of removal].
13.b. No Asylum—A person subject to reinstatement still retains the right to seek withholding of removal and
a claim based upon the CAT, 8 CFR §§208.31, 241.8(d), 1208.31, 1241.8(d), but asylum or other relief
may be barred. Matter of L-M-P-, 27 I&N Dec. 265 (BIA 2018) [no right to apply for asylum in
reinstatement proceedings and IJ’s grant reversed]; Garcia v. Sessions, 873 F.3d 553, 556-57 (7th Cir.
2017) [person subject to reinstatement is not eligible for asylum]; RSC v. Sessions, 869 F.3d 1176 (10th
Cir. 2017) [same under Chevron Step 2]; Mejia v. Sessions, 866 F.3d 573, 583-90 (4th Cir. 2017) [statute
clearly precludes asylum]; Cazun v. U.S. Att’y Gen., 856 F.3d 249, 259-61 (3d Cir. 2017) [respondent
granted CAT and withholding but not eligible for asylum]; Garcia v. Sessions, 856 F.3d 27 (1st Cir. 2017)
[neither the Rule of Lenity, nor Charming Betsy cannon of statutory construction contravened BIA’s
reasonable interpretation under Chevron step-two that statute precludes asylum]; Perez-Guzman v.
Lynch, 835 F.3d 1066, 1073-82 (9th Cir. 2016) Page 691 [under Chevron step two upheld regulation
barring person subject to reinstatement to apply for asylum] Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d
1307 (11th Cir. 2016) [respondent not eligible for asylum]; Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-91
(5th Cir. 2015) [not eligible for asylum but eligible for withholding and CAT]; Herrera-Molina v. Holder, 597
F.3d 128, 138–40 (2d Cir. 2010). The standard of review of the denial of withholding or CAT is not the
“facially legitimate and bona fide reason” standard but substantial evidence. Andrade-Garcia v. Lynch, 820
F.3d 1076, 1080-82 (9th Cir. 2016). It is worth noting that there is a potential statutory conflict between the
interpretation of §241(a)(5) as barring asylum and the asylum statute itself INA §208(a) which provides for
eligibility for asylum regardless of immigration status.
Under current law, if a claimant expresses a fear of returning to the country designated, she must be
immediately referred to an asylum officer to determine “reasonable fear” of return. 8 CFR §241.8(e). If the
USCIS officer decides she does have a reasonable fear of persecution or torture, the case is referred to
an IJ for full consideration. 8 CFR §208.31(e). If the officer decides she does not have a reasonable fear
of return, the applicant can appeal it to the IJ. 8 CFR §208.31(g). On appeal, if the IJ reaffirms the
negative determination of the officer the case is returned to DHS for removal. There is no appeal to the
BIA. However, an applicant may petition directly to the circuit court regarding the negative determination.
Martinez v. Sessions, 873 F.3d 655 (9th Cir. 2017) [recognizing that BIA has no jurisdiction but given the
“conflicting and confusing” information and a process that is a “trap for the unwary,” particularly for a pro
se respondent, the court counted the 30 days from the BIA denial and not the IJ order]; Ayala v. Sessions,
855 F.3d 1012, 1017-18 (9th Cir. 2017) [despite mistaken appeal to BIA there was still jurisdiction in the
circuit court to review a negative reasonable fear determination in the context of a reinstated removal
order because the court determined the time would run from the BIA denial and not the IJ denial]; If she
was not provided an initial “reasonable fear” determination, is in custody under a reinstated removal order
or an order under INA §238(b), and has expressed a fear of returning to her country, a class settlement in
Garcia v. Johnson, No. 14-cv-01775-YGR (N.D. Cal. 2015) at docket entries 104, 104-1, 133, requires
ICE to refer her “immediately, as practicable, to USCIS” for a reasonable fear determination. She may
also initiate a constitutional or legal challenge to the original removal proceeding. Debeato v. U.S. Att’y
Gen., 505 F.3d 231 (3d Cir. 2007) [post–REAL ID, there is jurisdiction under INA §242(a)(2)(D) to review a
legal challenge to a reinstated removal order although court found no gross miscarriage of justice
warranting collateral attack on original removal order]; Ramirez-Molina v. Ziglar, 436 F.3d 508, 513–14
(5th Cir. 2006) [same]; Villegas de la Paz v. Holder, 614 F.3d 605, 610 (6th Cir. 2010) [same, although
court did not adopt the gross miscarriage of justice standard for review of the prior order]. See also
Lorenzo v. Mukasey, 508 F.3d 1278, 1281 (10th Cir. 2007) [where the order underlying the reinstatement
order is an expedited removal order, INA §242(a)(2)(A) and INA §242(e) limit the restoration of jurisdiction
provided by INA §242(a)(2)(D)]; de Rincon v. Mukasey, 539 F.3d 1133, 1137 (9th Cir. 2008) [same]. But
see Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (en banc) [reinstatement of a prior
order—regardless of the process afforded—does not offend due process; Arreola-Arreola v. Ashcroft, 383
F.3d 956 (9th Cir. 2004) reversed].
13.c. Application of Deportation Orders Entered before IIRIRA—In Fernandez-Vargas v. Gonzales, 548 U.S.
30 (2006), the Court resolved a circuit split and found that the application of INA §241(a)(5) to persons
who reentered the U.S. after deportation but before Apr. 1, 1997 was not impermissibly retroactive where
the person applied for relief from removal, such as AOS, after Apr. 1, 1997.
13.d. Reinstatement May Retroactively Eliminate Substantive Defenses—The Court in Fernandez-Vargas v.

Gonzales also determined that applications for relief filed after Apr. 1, 1997 were barred by INA §241(a)(5)
and INA §241(a)(5) was not impermissibility retroactive as to that relief. Morales-Izquierdo v. DHS, 600
F.3d 1076, 1086–91 (9th Cir. 2010) [followed Torres-Garcia and Gonzales v. DHS and rejected a
retroactivity argument]; Delgado v. Mukasey, 516 F.3d 65 (2d Cir. 2008) [same, agreeing with Torres-
Garcia and Gonzales]; Duran Gonzales v. DHS, 508 F.3d 1227, 1234–42 (9th Cir. 2007) [reversing prior
decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004) and upholding on Chevron deference
under National Cable & Telecomm. Ass’n v. Brand X, 545 U.S. 967 (2005) the BIA’s decision in Matter of
Torres-Garcia]; Labojewski v. Gonzales, 407 F.3d 814 (7th Cir. 2005) Page 692 [pre-Fernandez-Vargas
reinstatement not impermissibly retroactive for person who re-entered the U.S. before IIRIRA but applied
for AOS after; Faiz-Mohammad distinguished]; Lattab v. Ashcroft, 384 F.3d 8, 17–20 (1st Cir. 2004)
[same]; Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006) [an I-212 waiver cannot retroactively waive
inadmissibility under INA §212(a)(9)(C)(i)(II) because the applicant cannot seek admission under that
section for 10 years after the date of his last departure from the U.S.]. See also De Sandoval v. U.S. Att’y
Gen., 440 F.3d 1276, 1284–85 (11th Cir. 2006) [pre-Fernandez-Vargas, INA §245(i) is not in conflict with
the reinstatement provision that bars most forms of relief because §245(i) applies to persons who had
never before been removed].
The Court in Fernandez-Vargas however, left open the question of whether someone who filed his
application for relief prior to Apr. 1, 1997, could be barred by INA §241(a)(5). In Valdez-Sanchez v.
Gonzales, 485 F.3d 1084 (10th Cir. 2007) the Tenth Circuit addressed this issue and found that where a
person married and adjusted status before IIRIRA, the application of INA §241(a)(5) was impermissibly
retroactive. In Ixcot v. Holder, 646 F.3d 1202, 1213 (9th Cir. 2011), the Ninth Circuit held that application of
INA §241(a)(5) to a person who applied for asylum prior to IIRIRA’s effective date was impermissibly
retroactive. In Silva Rosa v. Gonzales, 490 F.3d 403 (5th Cir. 2007), however, the court found that INA
§241(a)(5) was not impermissibly retroactive where person married LPR before IIRIRA and had approved
I-130 before that date, but a visa number was not available and respondent did not file AOS until after
IIRIRA’s effective date. Accord Ortega v. Holder, 747 F.3d 1133 (9th Cir. 2014) [statute not impermissibly
retroactive where AOS filed before IIRIRA but fraudulent I-130 withdrawn and no further action taken
before IIRIRA]; Molina Jerez v. Holder, 625 F.3d 1058, 1069-73 (8th Cir. 2010) [INA §241(a)(5) was not
impermissibly retroactive as to asylum claim filed before IIRIRA where it was decided by legacy INS even
if withholding/suspension were not decided]; Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir. 2010) [INA
§241(a)(5) may be applied retroactively to a person who married a USC before IIRIRA’s effective date but
did not file an AOS before that date].
Prior to Fernandez-Vargas, courts found that while DHS may retroactively apply the statute to prior
deportation orders, INA §241(a)(5) may not retroactively eliminate substantive defenses to removal where
the relief was filed or sought prior to the effective date of IIRIRA (Apr. 1, 1997). Faiz-Mohammad v.
Ashcroft, 395 F.3d 799, 809–10 (7th Cir. 2005) [pre-Fernandez-Vargas finding that INA §241(a)(5) may
not retroactively bar relief where person entered and applied for relief before Apr. 1, 1997]; Sarmiento
Cisneros v. U.S. Att’y Gen., 381 F.3d 1277, 1284–85 (11th Cir. 2004) [same]. Lopez-Flores v. DHS, 387
F.3d 773 (8th Cir. 2004) [pre-Fernandez-Vargas, the court found it was impermissible to invoke INA
§241(a)(5) retroactively where respondent had potential relief of AOS if I-212 waiver granted and initial LC
was filed prior to Apr. 1, 1997]; Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003) [pre-Fernandez-Vargas an
AOS application based upon father’s second preference petition that was filed prior Apr. 1, 1997 is not
barred by INA §241(a)(5)].
13.e. Constitutional Challenges to Procedure—Constitutional challenges to reinstatement order procedures

have been rejected by most courts. Although it was possible to challenge the unconstitutionality/due
process violations regarding the original removal order, most courts determined that current reinstatement
of removal procedures under 8 CFR §241.8 withstand constitutional scrutiny. Ponta-Garcia v. U.S. Att’y
Gen., 557 F.3d 158, 162–63 (3d Cir. 2009) [regulation permitting DHS officer to render decision instead of
IJ does not violate due process]; Garcia-Villeda v. Mukasey, 531 F.3d 141, 148 (2d Cir. 2008) [upholding 8
CFR §241.8 under Chevron]; Lorenzo v. Mukasey, 508 F.3d 1278, 1283–84 (10th Cir. 2007) [8 CFR
§241.8 does not facially violate due process and there was no showing of prejudice]; De Sandoval v. U.S.
Att’y Gen., 440 F.3d 1276, 1285 (11th Cir. 2006) [procedural due process claim rejected where petitioner
could demonstrate no prejudice]; Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846–48 (8th Cir. 2006)
[procedure does not violate due process; under 8 CFR §103.2(b)(16)(i) and former 103.10 respondent’s
counsel can get access to respondent’s file before submitting a written response]; Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en banc) [reinstatement order implemented under 8 CFR
§241.8 is not facially unconstitutional; Arreola-Arreola v. Ashcroft, 383 F.3d 956, 962 (9th Cir. 2004),
overruled]; Warner v. Ashcroft, 381 F.3d 534, 538–39 (6th Cir. 2004) [no due process violation because
respondent failed to show prejudice]; Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162–63 (10th Cir.
2003) Page 693 [rejecting claim that additional procedural safeguards were necessary or that denying
AOS and instituting removal violates due process]; Padilla v. Ashcroft, 334 F.3d 921 (9th Cir. 2003) [did
not reach constitutional issue as there is no prejudice to respondent because §245(i) does not trump
reinstatement provision that bars relief]; Avila-Macias v. Ashcroft, 328 F.3d 108, 114–15 (3d Cir. 2003)
[statute does not violate due process because there is no prejudice]; Ojeda-Terrazas v. Ashcroft, 290 F.3d
292, 302 (5th Cir. 2002) [same]; Gomez-Chavez v. Perryman, 308 F.3d 796, 800–02 (7th Cir. 2002)
[procedure does not violate due process]; Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173 (9th Cir.
2001) [no due process violation where §241(a)(5) bars respondent from collaterally attacking prior
deportation order]; Briones-Sanchez v. Heinauer, 319 F.3d 324 (8th Cir. 2003) [same].
13.f. Constitutional and Legal Challenges to Underlying Removal Order—For a thorough discussion of
judicial review of removal orders see “Reinstatement of Removal Order Review,” ¶ IV.A.19 (p.1874), infra.
13.g. Procedures—Pursuant to 8 CFR §241.8, ICE may not enter a removal order until the officer
determines that: (1) the person has been subject to a prior order; (2) the person identified is the same
person as the one with the prior order and if disputed identity shall be established through fingerprint
identification; and (3) the person unlawfully re-entered the United States. If the officer determines that the
person is subject to removal he shall provide the respondent a written notice and advise her that she may
make a written or oral statement contesting the determination. If a statement is made the officer shall
consider whether the statement warrants reconsideration. Reinstatement of removal is neither “automatic”
nor “obligatory.” Villa-Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013). An applicant seeking to
challenge reinstatement must make an administrative record. Ochoa-Carrillo v. Gonzales, 437 F.3d 842,
845–46 (8th Cir. 2006) [respondent failed to make an administrative record contesting identity]. See also
Villegas de la Paz v. Holder, 640 F.3d 650, 655-56 (6th Cir. 2010) [DHS failure to allow petitioner to make
a statement in violation of 8 CFR §241.8(b), and its failure to give petitioner review of her “A” file were
harmless]. But see Villa-Anguiano v. Holder, 727 F.3d 873, 881 (9th Cir. 2013) [DHS failed to consider
evidence of dismissal of criminal reentry charge based on the illegality of the prior removal order]. The
failure to consider the exercise of prosecutorial discretion is not a basis for vacating an order of
reinstatement of removal. Morales de Soto v. Lynch, 824 F.3d 822, 829 (9th Cir. 2016).
13.h. Relief Available—Notwithstanding reinstatement of removal, a person may apply for withholding of
removal, 8 CFR §§208.31 and 241.8(e), and HRIFA or NACARA benefits, 8 CFR §241.8(d).
He may also seek relief from detention. Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016) [a person who
has filed a withholding application in a INA §241(a)(5) proceeding falls with INA §236 not INA §241(a) for
purposes of a bond hearing]; Diaz v. Hott, No. 1:17-cv-1405 (LMB/MSN), 2018 WL 1042800 (E.D. Va.
Feb. 26, 2018) [certifying a class and granting right to withholding only applicants to a bond hearing];
Castillo v. ICE Field Office Director, 907 F.Supp.2d 1235, 1240-41 (W.D. Wash. 2012) [respondent’s
application for withholding in the context of reinstatement subjects him to INA §236 and not INA §241
incarceration and his 10-year period from time of prior detention takes him out of the mandatory detention
provision due to the “when released” language]. But see Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir.
2018) [detention of a person in a reinstated removal proceeding under INA §241(a)(5), even if also a
withholding only proceeding, is governed by INA §241 during the removal period and not INA §236 and
therefore not entitled to a bond hearing]; See also Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011)
[holding individuals detained pursuant to INA §241(a)(6) should be afforded a bond hearing after detention
becomes prolonged].
13.i. Administrative Review—The BIA has found no jurisdiction to consider a challenge to a reinstated order.
Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998). Where INS violated its regulations and terminated removal
proceedings to institute proceedings under INA §241(a)(5) instead of seeking termination from the court,
there was no prejudice because the respondent did not specify what relief he was eligible for before the IJ
prior to termination. Matter of G-N-C-, supra. However, reinstatement of removal is not mandatory before
the immigration judge, and the judge has discretion to not terminate proceedings even where DHS asserts
that the NTA was improvidently issued. Id. Page 694
13.j. Judicial Review—Every circuit has held that the court of appeals has jurisdiction over petitions for
review of reinstatement orders. Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003); Garcia-Villeda v.
Mukasey, 531 F.3d 141, 144 (2d Cir. 2008); Avila-Macias v. Ashcroft, 328 F.3d 108, 110 (3d Cir. 2003);
Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001); Ojeda-Terrazas v. Ashcroft, 290 F.3d
292, 295 (5th Cir. 2002); Warner v. Ashcroft, 381 F.3d 534, 536 (6th Cir. 2004); Gomez-Chavez v.
Perryman, 308 F.3d 796, 800 (7th Cir. 2002); Briseno-Sanchez v. Heinauer, 319 F.3d 324, 326 (8th Cir.
2003); Ixcot v. Holder, 646 F.3d 1202, 1206 (9th Cir. 2011); Duran-Hernandez v. Ashcroft, 348 F.3d 1158,
1162 n.3 (10th Cir. 2003); Sarmiento Cisneros v. U.S. Att’y Gen., 381 F.3d 1277, 1278 (11th Cir. 2004).
The standard of review is substantial evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 834-36 (9th Cir.
2016) [the substantial evidence standard and not the facially legitimate and bona fide standard is
applicable to review of a denial of withholding in a reinstatement proceeding]. The court’s review may be
limited to the administrative record before DHS and therefore failure to present evidence at the
administrative hearing before a DHS officer may be fatal. Perez-Garcia v. Lynch, 829 F.3d 937, 940-41
(8th Cir. 2016) [where respondent claimed he previously left voluntarily in compliance with an IJ’s order
and therefore there was no order of deportation to reinstate, his failure to present any evidence or even a
statement was fatal where DHS claimed he failed to timely comply with VD]. There is no review of the
original removal order that was the basis for reinstatement. Mejia v. Sessions, 866 F.3d 573, 588-90 (4th
Cir. 2017).The court may only review a final reinstatement order. Luna-Garcia v. Holder, 777 F.3d 1182,
1185 (10th Cir. 2015) [where the applicant pursues reasonable fear determinations there is no “final order”
of removal and therefore the circuit court lacks jurisdiction to review the reinstated removal order until
reasonable fear/withholding is decided by the IJ/BIA]; Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir.
2012). But a non–final order under certain circumstances may ripen into a final order to provide
jurisdiction for review. Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307 (11th Cir. 2016) [where a petition
is not ripe because a credible fear determination is pending and therefore no final order has been issued,
the court has jurisdiction once the credible fear determination is decided].
Motion to Reopen—At least one circuit maintains that it has no jurisdiction to review a motion to reopen
based upon changed country conditions when there is a reinstated removal order under INA §241(a)(5).
Mejia v. Sessions, 881 F.3d 421, 425-26 (5th Cir. 2018) [except for questions of law, 241(a)(5) bars any
motion to reopen including one based upon changed country conditions]. The Fifth Circuit also holds it
has no jurisdiction on a motion to reopen to challenge the original underlying removal order because such
motion is a collateral attack only subject to review where there is a gross miscarriage of justice which
required the movant to challenge the underlying order initially. Id. at 424-25.
When Does the 30 Days Run and from What Order?—The date a DHS officer signs the bottom box on
Form I-871 (entitled Decision, Order and Officer’s Certification) is the date the 30-day petition for review
clock begins. Ponta-Garca v. Ashcroft, 386 F.3d 341, 342-43 (1st Cir. 2004); Lemos v. Holder, 636 F.3d
365, 366-67 (7th Cir. 2011). However, where DHS withholds service of the reinstatement order during the
30-day window for filing a petition for review, one court held that the 30-day clock commenced on the
service date. See Villegas de la Paz v. Holder, 640 F.3d 650, 654 (6th Cir. 2010) [“Part of the regime
governing review of removal orders is that the 30-day period for filing a petition does not commence until
the agency properly serves the alien with the order”]. But what if the applicant seeks a reasonable fear
review and then mistakenly files an appeal to the BIA from the denial, does the 30 days run from the BIA
appeal or from the original IJ decision, because the BIA has no jurisdiction over the IJ’s decision?
Martinez v. Sessions, 873 F.3d 655 (9th Cir. 2017) [recognizing that BIA has no jurisdiction but given the
“conflicting and confusing” information and a process that is a “trap for the unwary,” particularly for a pro
se respondent, the court counted the 30 days from the BIA denial and not the IJ order]; Ayala v. Sessions,
855 F.3d 1012, 1017-18 (9th Cir. 2017) [court has jurisdiction to review a negative reasonable fear
determination in the context of a reinstated removal order and although the appeal should be filed from
the ICE determination, the court found an appeal from an improperly filed BIA order was timely because
the agency provided contradictory and incorrect instructions which led the petitioner to improperly appeal
to the BIA]. Page 695
A reinstatement order could be challenged by petition for review on the grounds that the respondent is a
USC. Batista v. Ashcroft, 270 F.3d 8 (1st Cir. 2001). And the circuit courts always had jurisdiction to review
the lawfulness of the application of INA §241(a)(5). Anderson v. Napolitano, 611 F.3d 275, 277-78 (5th Cir.
2010) [reinstatement order may be reviewed to determine lawfulness under INA §242(b)(4) and the stamp
in petitioner’s passport is not evidence that the AG consented to her readmission]; Ponta-Garcia v. U.S.
Att’y Gen., 557 F.3d 158, 163–64 (3d Cir. 2009) [court may review whether original order was invalidated
or whether ICE met its obligations in making the reinstatement determination; remanded for a hearing];
Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003) [recognizing that it may not revisit the validity of the
original deportation order but having the authority “to determine the appropriateness of its resurrection”];
Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002); Velasquez-Gabriel v. Crocetti, 263 F.3d
102, 105 (4th Cir. 2001) [same] Bejjani v. INS, 271 F.3d 670, 674 (6th Cir. 2001) [same]Castro-Cortez v.
INS, 239 F.3d 1037, 1043–45 (9th Cir. 2001) [same].
But the court of appeals has no jurisdiction to review the termination of removal proceedings pending the
reinstatement. Galindo-Romero v. Holder, 640 F.3d 873 (9th Cir. 2011) [cannot review termination
because it is a non–final order and reinstated order is not yet reinstated]. The circuit court may also have
no jurisdiction to review the denial of a U visa or the U visa waiver in the course of a review of the
reinstatement order as they are separate and apart from a final order. Torres-Tristan v. Holder, 656 F.3d
653 (7th Cir. 2011). It may also not have authority to review a claim that the respondent should have been
put in a INA §240 proceeding instead of reinstatement. Perez-Garcia v. Lynch, 829 F.3d 937, 942 (8th Cir.
2016) [review of failure to put respondent in 240 proceeding rather than reinstatement is barred by INA
§242(g)]. Post–REAL ID Act, habeas corpus challenges to a reinstatement order and the relief that may
sought related to the order, such as AOS, are barred. Morales-Izquierdo v. DHS, 600 F.3d 1076, 1081–86
(9th Cir. 2010) [rejecting habeas jurisdiction to challenge reinstatement order and AOS denial because
AOS part of final order].
13.k. Res Judicata/Collateral Estoppel—Criminal conviction to illegal reentry does not necessarily bar
habeas to challenge unconstitutionality of original removal order. Nolasco v. U.S., 358 F.Supp.2d 224,
237–38 (S.D.N.Y. 2004) [res judicata was inapplicable to St. Cyr challenge to original deportation order
where eligibility for §212(c) relief was never litigated in the criminal proceeding].
13.l. FTCA Action—One person improperly deported under INA §241(a)(5) has successfully brought a
federal tort claim for money damages against the federal government. Araujo v. U.S., 301 F.Supp.2d 1095
(N.D. Cal. 2004) [summary judgment on liability granted to plaintiff on collateral estoppel grounds
following Castro-Cortez].
U. Cancellation of Visa—DHS officers are not authorized to cancel NIVs upon commencement of deportation
hearing. DHS can only cancel visas in deportation if DHS permits person to depart voluntarily prior to final
hearing or if persons is ordered deported or excluded. 22 CFR §41.122(h)(2), and (4).
V. Physical Removal [INA §241(b)(2), 8 USC §1231(b)(2); 8 CFR pt. 241]
1. Four-Step Process in Physical Removal
First, a person will be removed to the country he designates. INA §241(b)(2)(A), 8 USC §1231(b)(2)
(A), 8 CFR §1240.10(f). Bui v. INS, 76 F.3d 268 (9th Cir. 1996) [IJ failure to permit respondent to
designate country of deportation is reversible error]; Zahren v. Gonzales, 487 F.3d 1039 (7th Cir. 2007)
[where Palestinian designates Jordan, has a temporary Jordanian passport and did not contest he was
a citizen of Jordan in the NTA, the IJ did not err in designating Jordan as the country of removal
despite his obvious Palestinian birth and despite asylum claim from the Palestinian territory due to
conversion to Christianity]. A person may not designate a contiguous territory, adjacent island, or
island adjacent to contiguous territory unless he is a native, citizen, subject, national or resident of that
territory or island. Matter of A-A-, 20 I&N Dec. 492, 505 (BIA 1992). The statute also provides for
alternate places of deportation. The BIA may designate the country under one of these conditions if the
IJ fails to do so. Desta v. Ashcroft, 329 F.3d 1179, 1184–86 (10th Cir. 2003) [no due process violation
where BIA designates country Page 696 because IJ forgets and respondent not given prior notice but
given opportunity to respond through motion to reconsider]. In addition the BIA has the authority to
change the country of designation where original country ceased to exist. Ademi v. INS, 31 F.3d 517,
520–21 (7th Cir. 1994). But, it is a fundamental failure of due process to deport someone to a country
while hearing asylum claim only from another country without opportunity to present evidence
regarding country of deportation. Kossov v. INS, 132 F.3d 405 (7th Cir. 1998) [evidence of persecution
in Latvia, but deportation to Russia]. Accord Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999) [well-founded
fear in Uzbekistan, but BIA ordered removal to Ukraine]; Andriasian v. INS, 180 F.3d 1033, 1041 (9th
Cir. 1999) [last minute switch by the IJ of the country of deportation violates due process because it
fails to give proper notice]; Palavra v. INS, 287 F.3d 690 (8th Cir. 2002) [reversing BIA removal order to
Croatia on substantial evidence standard where respondent claimed citizenship in Bosnia and sought
asylum from there]. But see Al Najjar, supra [no error where IJ gave petitioner ample time to contest
designation].
Second, the IJ may disregard the designation by the person subject to removal if: (i) she fails to
designate a country promptly; (ii) the government of the designated country does not inform the Secy.
of DHS within 30 days that it will accept her; (iii) the government designated is not willing to accept her;
or (iv) the Secy. of DHS decides that removal to the designated country is prejudicial to the U.S. INA
§241(b)(2)(C). If person does not designate country, IJ given broad authority to do so.Al Najjar v.
Ashcroft, 257 F.3d 1262, 1295–96 (11th Cir. 2001) [IJ decision to designate Saudi Arabia when
Palestinian refused to designate country is not error].
Third, if the person cannot be removed to a designated country, the IJ can remove her to a country
where she is a subject, national or citizen unless: (i) the country does not inform the Secy. of DHS
within 30 days or another reasonable time the Secy. of DHS decides that it will accept her; or (ii) the
country decides it will not accept her. INA §241(b)(2)(D).Hadera v. Gonzales, 494 F.3d 1154 (9th Cir.
2007) [IJ’s determination that respondent was not a citizen of Ethiopia did not permit the IJ to order
him removed there after he failed to designate a country because he was not a citizen, subject or
national].
Fourth, if none of the above alternatives can be utilized, the Secy. of DHS shall remove the person to
any of the following countries: (i) the country from which the person was admitted; (ii) the country from
the foreign port which person left for the U.S. or a foreign territory contiguous to U.S.; (iii) the country
of person’s residence before entry to U.S.; (iv) the country of person’s birth; (v) the country that had
sovereignty over person’s birthplace when they were born; (vi) the country in which person’s birthplace
is located at time of removal order; (vii) another country that will accept the person. INA §241(b)(2)(E).
Under INA §241(b)(2)(E)(i)–(vi), ICE need not demonstrate that the country is willing to accept her. Jama v.
ICE, 543 U.S. 335, 338–52 (2005) [the designations of potential countries of removal under 8 USC §1231(b)
(2)(E)(i)–(vi) do not require the receiving countries’ consent, unlike subsection (vii) of §1231(b)(2)(E), which
specifically requires consent]; Jama v. Gonzales, 431 F.3d 230 (5th Cir. 2005) [following Supreme Court
decision in Jama and allowing removal to Somalia even if country has not accepted them]. Under 8 CFR
§§241.15, 1240.10, 1241.15; 70 FR 661–75 the regulations provide that consent of the receiving country is
unnecessary for removals by DHS or the IJ under §1231(b)(2)(E)(i)–(vi), that the receiving country does not
require a functioning government, and that acceptance from the receiving country is not necessary prior to
DHS making travel arrangements or transporting the person. Pavlovich v. Gonzales, 476 F.3d 613, 61–16
(8th Cir. 2007) [where respondent was born in Russian and raised in Latvia but declined to designate a
country of removal, the IJ can designate a country and DHS can send the person to any country consistent
with §1231(b)(2)(E)(i)-(vi) without the country’s consent]; Bejet-Viali Al-Jojo v. Gonzales, 424 F.3d 823, 828
(8th Cir. 2005) [following Jama and allowed designation of countries over objection of respondent that Great
Britain, a place he resided for 4 years, or Sierra Leone, his country of birth, would not accept him]; but see
Mendis v. Filip, 554 F.3d 335 (2d Cir. 2009) [remanding to BIA for precedent decision on the meaning of
§1231(b)(2)(E)(i)–(ii) where Sri Lankan who transited through the UK was ordered deported to the UK].The
Secy. of DHS also has authority to remove someone even to a country that the U.S. does not recognize.
Osmani v. INS, 14 F.3d 13, 15 (7th Cir. 1994); but see Dzyuba v. Mukasey, 540 F.3d 955 (9th Cir. 2008) [BIA
erred in ordering deportation of person to Ukraine under (E)(i) (the country under which he was admitted)
because he was admitted to U.S. as a citizen of the USSR and not Ukraine]. Page 697
Under INA §241(b)(2)(E)(vii) the Secy. of DHS may only designate the country if he can show that the
country will accept the respondent. Wangchuck v. DHS, 448 F.3d 524, 530–32 (2d Cir. 2006) [where Tibetan
living in India did not fall under first 6 categories of 8 USC §1231(b)(2) and there was no indication that China
would accept him, the BIA’s alternate order of removal to China was erroneous]; Himri v. Ashcroft, 378 F.3d
932, 938–40 (9th Cir. 2004)[Jordan was improperly designated as a country for Palestinian asylum seeker
where there was no showing by the government before the designation that Jordan would take the
respondent].
2. Due Process Challenges to Designation and Removal
2.a. Removal—Zadvydas v. Davis, 533 U.S. 678 (2001) [continued detention of a person beyond the time
that removal is “reasonably foreseeable” is likely unconstitutional as a violation of due process and the
INS may not hold a person 6 months after a removal order absent evidence that removal is reasonably
foreseeable]; Clark v. Martinez, 543 U.S. 371 (2005) [following Zadvydas and finding that as a matter of
statutory construction of 8 USC §1231(a)(6) inadmissible persons must be released after 6 months unless
their removal is reasonably foreseeable]; D’Alessandro v. Mukasey, 628 F.Supp.2d 368 (W.D.N.Y. 2009)
(Magistrate, J) [agreed stay pending decision does not toll 90-day period and prolonged detention for 16
months violated both Zadvydas and agency regulations under 8 CFR §241.4(c), which ICE failed to
follow]; Tran v. Mukasey, 515 F.3d 478, 484 (5th Cir. 2008) [rejecting specially dangerous rationale to
justify indefinite detention of persons who cannot be removed]; Thai v. Ashcroft, 366 F.3d 790, 799 (9th
Cir. 2004) [same]; Kholyavskiy v. Schlecht, 479 F.Supp.2d 897, 908–09 (E.D. Wis. 2007) [in EAJA context,
ICE position in reading Zadvydas to permit 6 months detention even if person’s removal is not reasonably
foreseeable was not substantially justified].
2.b. Designation—Wong v. Warden, 999 F.Supp. 287, 289–90 (N.D.N.Y. 1998) [non-USC/LPR serving
criminal sentence has a 5th Amend. due process right against discriminatory denial of transfer to his
home country based on race, although he was unable to prove claim]; Matter of Linnas, 19 I&N Dec. 302
(BIA 1985) [rejecting constitutional due process challenge to IJ’s designation of USSR as country of
deportation where Nazi established he was tried in sham proceeding in USSR and sentenced to death].
3. Deportation Designation May Be Disregarded—The Secy. of DHS may disregard designation to a country
respondent chooses where it is prejudicial to U.S., where the person fails to designate a country promptly,
where the receiving government is not willing to accept the person or does not inform U.S. within time
requested by U.S. INA §241(b)(2)(C), 8 USC §1231(b)(2)(C). The decision of the AG to designate a country,
absent fraud, lack of jurisdiction or unconstitutionality, may not be reviewable. Doherty v. Meese, 808 F.2d
938 (2d Cir. 1986); Doherty v. INS, 908 F.2d 1108, 1113–14 (2d Cir. 1990), rev’d on other grounds, INS v.
Doherty, 502 U.S. 314 (1992). INA §242(g). It may also not be administratively reviewed. Although the IJ
designates the country of removal, 8 CFR §1240.12, the inability to remove the person to that country does
not prevent DHS from removing him to another country under 8 CFR §241.15 and such decision may not be
reviewable by the IJ or the BIA. 8 CFR §1241.15. But see Wani Site v. Holder, 656 F.3d 590, 594-95 (7th Cir.
2011) [government’s decision that it may remove petitioner to South Sudan after order of removal to Sudan
may not be accomplished for the first time “in the middle of a petition for review”].
4. Deportation and Imprisonment—An alien sentenced to imprisonment shall not be deported until such
imprisonment has been terminated by the release of the alien from confinement. Parole, supervised release,
probation, or possibility of arrest or further imprisonment, shall not be a ground to defer deportation. INA
§241(a)(4)(A), 8 USC §1231(a)(4)(A). Walford v. INS, 48 F.3d 477 (10th Cir. 1995) [cannot mandamus court
to order deportation before completion of sentence in light of former INA §242(h)]; Earle v. INS, 239
F.Supp.3d 234 (D.D.C. 2017) [same because no clear and indisputable right to be physically returned to
Jamaica after being deported where INA §242(g) bars such action and where petitioner is still serving his
criminal sentence]; U.S. v. Daza-Mosquera, 769 F.Supp.2d 443 (S.D.N.Y. 2011) [no private right of action to
compel deportation and also barred by INA §241(a)(4)(D)]; U.S. v. Abreu, 940 F.Supp. 443 (D.R.I. 1996).
Conversely, a person’s supervised release begins to run from the time he is released from imprisonment and
such time begins the moment he is transferred from the Bureau of Prisons custody to ICE custody to await
deportation. U.S. v. Garcia-Rodriguez, 640 F.3d 129 (5th Cir. 2011). District courts should generally not grant
supervised release to noncitizens. Sentencing Guidelines Manual §5D1.1 comment N. 5 (Nov. Page 698 1,
2011); U.S. v. Solano-Rosales, 781 F.3d 345, 352-54 (6th Cir. 2015) [district court erred in providing for
supervised release without explanation and contrary to USSG §5D1.1(c) to a defendant likely to be
deported]; U.S. v. Ramirez, 38 F.Supp.3d 818 (S.D. Tex. 2014). A noncitizen who has a confirmed order of
removal is eligible for 54 days of good conduct time per year. 28 CFR §523.20; 70 FR 66752 (Nov. 3, 2005);
Reyes-Morales v. Wells, 766 F.Supp.2d 1349 (S.D. Ga. 2011).
5. Deportation and Civil Commitment—There is also an issue whether someone subject to a final order of
removal may be ordered to civil commitment because of his or her mental illness. Mederos v. Murphy, 762
F.Supp.2d 209 (D. Mass. 2010) [challenging Mass. court’s order of civil commitment following a jury trial in
light of outstanding order of removal].
6. Notification of Deportation—Counsel has a right to notification of client’s imminent physical deportation.

Zepeda-Melendez v. INS, 741 F.2d 285 (9th Cir. 1984). Regulations for deportation (8 CFR §241.33(b)) and
for exclusion (8 CFR §241.22) provide for 72 hours’ notice before removal. Arreaza-Cruz v. INS, 39 F.3d 909
(9th Cir. 1994). The prior notice provision was eliminated for removal proceedings. However, the removal of a
respondent prior to a 72-hour period is unconstitutional in the view of one district court. Ying Fong v. Ashcroft,
317 F.Supp.2d 398, 400–03 (S.D.N.Y. 2004)[removal in less than 72 hours was a violation of due process
and court required that respondent be returned to the U.S.].
7. Sedation of Deportee—At least one court has found that use of sedatives that are not antipsychotic drugs is
permissible to sedate deportee if drugs utilized are not anti-psychotic and are administered pursuant to court
order. U.S. v. Bechara, 935 F.Supp. 892 (S.D. Tex. 1996). In the light of negative publicity and litigation, ICE
no longer will sedate a deportee unless it obtains a district court order. Memo, Torres, Director, ICE (Jan. 9,
2008), AILA Doc. No. 08011661.
8. Mandamus and Physical Removal—An person deported serving a criminal sentence cannot compel the
government to remove him to his home country while sentence is being served. Earle v. INS, 239 F.Supp.3d
234 (D.D.C. 2017) [no clear and indisputable right to be physically returned to Jamaica after being deported
where INA §242(g) bars such action and where petitioner is still serving his criminal sentence].
9. Mandatory Detention During Removal Period [INA §241(a)(2), 8 USC §1231(a)(2)]—DHS shall detain the
person during the 90-day removal period and “under no circumstance” shall they release a person who has
been found inadmissible or removable under criminal or terrorism grounds. Khotesouvan v. Morones, 386
F.3d 1298 (9th Cir. 2004) [person detained under mandatory detention provision may not contest detention
during the 90-day period even if his removal is not reasonably foreseeable]. But see Memo, Cooper, Gen.
Counsel, Detention and Release During the Removal Period, HQCOU 50/1.1 (Apr. 21, 2000), reprinted in 77
No. 39 Interpreter Releases 1460 (Oct. 9, 2000).
10. Time Limitation on Removal
10.a. Generally—Where a final order of removal is made, DHS shall have only 90 days to effect removal.
The 90 days run from the date the removal order becomes administratively final, or the date of a federal
court’s final order if judicial review is sought or the date the person is released from federal or state
confinement if serving a criminal sentence.INA §241(a)(1)(A) & (B), 8 USC §1231(a)(1)(A) & (B). DHS
takes the position that it is not required to act with “reasonable dispatch” within the 90-day period
established by INA §241(a)(1)(A). Legal Memo, Philbin, Deputy Asst. A.G., Limitation on the Detention
Authority of the INS (Feb. 20, 2003), AILA Doc. No. 04021965. The 90-day period, in the view of one
court, is triggered by the end of the appeal period after entry of a final order (BIA decision + 30 days) and
not by DHS’s decision to take the person into custody. Ulysse v. DHS, 291 F.Supp.2d 1318, 1324–26
(M.D. Fla. 2003) [rejecting DHS interpretation of the initiation of the 90-day period and ordering release]. If
DHS does not remove the detainee within that time or the detainee does not leave within that time, she
“shall be subject to supervision under regulations.” INA §241(a)(3), 8 USC §1231(a)(3). Release under
supervision may be conditioned by statute on certain requirements including periodic reporting, bond, and
restrictions on activity and conduct. INA §241(a)(3). See, Yusov v. Shaughnessy, 671 F.Supp.2d 521,
529–30 (S.D.N.Y. 2009) [court has jurisdiction to review long term supervision conditions but found that 3-
month reporting provision constitutional]. But see U.S. v. Witkovich, 353 U.S. 194 (1957) Page 699
[construing scope of authority conveyed by similar statutory language as limited to assuring appearance
at removal]; Cheng Ke Chen v. Holder, 783 F.Supp.2d 1183 (N.D. Ala. 2011) [distinguishing between 90-
day period when removal order becomes administratively final whether or not respondent is in custody
and the due process requirements under Zadvydas when the person is finally detained].
10.b. Beyond 90-Day Detention—The Secy. of DHS may detain beyond the removal period any person
ordered removed who is inadmissible under INA §212 or removable because he (1) has violated his NIV
status or condition of entry [INA §237(a)(1)(C)]; (2) has committed a crime covered under the Act [INA
§237(a)(2)]; (3) has been engaged in security-related terrorist or foreign policy matters [INA §237(a)(4)];
or (4) the AG has determined he is a risk to the community or unlikely to comply with the order of removal.
INA §241(a)(6), 8 USC §1231(a)(6); 8 CFR §§241.4(a). If the person can demonstrate by clear and
convincing evidence that release would not pose a danger to the community or significant risk of flight, the
DD may release him. 8 CFR §§241.4(d)(1); 8 CFR §1241.14. Matter of Saelee, 22 I&N Dec. 1258 (BIA
2000) [relying on detainee’s clear and convincing burden to uphold detention]. However, once removal is
no longer reasonably foreseeable, detention may not be continued under the statute, INA §241(a)(6).
Clark v. Martinez, 543 U.S. 371 (2005); Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008).
10.c. Constitutional/Statutory Challenge to Continued Detention—Under the statute (8 USC §1231(a)(6)),

the continued detention of a person beyond the time that his removal is “reasonably foreseeable,” raises
serious constitutional problems, and thus the statute has been construed as not authorizing indefinite
detention. Zadvydas v. Davis, 533 U.S. 678 (2001) [designating 6 months as a presumptively reasonable
period of time to effect removal]; Clark v. Martinez, 543 U.S. 371 (2005) [following Zadvydas and finding
that as a matter of statutory construction of 8 USC §1231(a)(6) inadmissible persons whose removal is
not reasonably foreseeable must be released after 6 months]; Diouf v. Napolitano, 634 F.3d 1081 (9th Cir.
2011) (Diouf II) [individual facing prolonged detention under INA §241(a)(6) is entitled to release from
detention unless the government establishes that he is a flight risk or a danger to the community]. Under
the Zadvydas analysis the person seeking release may have the initial burden to demonstrate that there is
a “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future.” Hajbeh v. Loiselle, 490 F.Supp.2d 689 (E.D. Va. 2007) [quoting Zadvydas and finding that the
government did not rebut the initial burden]. But see Callender v. Shanahan, 281 F.Supp.3d 428 (S.D.N.Y.
2017) [petitioner would not be released despite 2 1/2 years in detention where travel documents have
been delayed due only to petitioner’s challenges to removal]; D’Alessandro v. Mukasey, 628 F.Supp.2d
368, 404–05 (W.D.N.Y. 2009) (Magistrate, J) [the burden on reasonable foreseeability is “good reason to
believe” and not to “demonstrate” no reasonable foreseeability, significant likelihood or that his detention
is indefinite]. Following Zadvydas the Ninth Circuit held that it was not reasonably foreseeable to believe
that a petitioner would be returned to Cambodia in light of the lack of a repatriation agreement and other
factors. Ma v. Ashcroft, 208 F.3d 815 (9th Cir.), aff’d, sub nom. Zadvydas v. Davis, 533 U.S. 678 (2001),
on remand, 257 F.3d 1095 (9th Cir. 2001). Similarly, the Fifth Circuit in Zadvydas held on remand that
immigration authorities did not rebut applicant’s showing that his removal was not reasonably
foreseeable.Zadvydas v. Davis, 533 U.S. 678 (2001), on remand, 285 F.3d 398 (5th Cir. 2002). See also
Poeuv v. Smith, 169 F.Supp.3d 297 (D. Mass. 2016) [denied ICE motion to dismiss where ICE requested
repatriation on treaty with Cambodia but Cambodian government had not yet decided to repatriate eight
months after request]; Khalafala v. Kane, 836 F.Supp.2d 944 (D. Ariz. 2011) [ordered release unless
within 60 days detainee gets hearing before IJ]; Elashi v. Sabol, 714 F.Supp.2d 502 (M.D. Pa. 2010)
[Palestinian detained 7 months beyond presumptive release period who documented that 14 countries,
UNHCR and the PLO all declined to issue him travel documents was ordered released where DHS could
only demonstrate it has ongoing discussions and meetings regarding “foreseeability”]; D’Alessandro v.
Mukasey, 628 F.Supp.2d 368 (W.D.N.Y. 2009) (Magistrate, J) [agreed stay pending decision does not toll
90-day period and prolonged detention for 16 months violated both Zadvydas and agency regulations
under 8 CFR §241.4(c), which ICE failed to follow]; Morales-Fernandez v. INS, 418 F.3d 1116, 1122–25
(10th Cir. 2005) [post-Clark finding it impermissible to hold Cuban beyond 6-months]; Ali v. Cangemi, 384
F.3d 989 (8th Cir. 2004)[Somali in detention for 18 months who could not be deported as member of class
in action Page 700 precluding deportation to Somalia ordered released]; Bonitto v. ICE, 547 F.Supp.2d
747 (S.D. Tex. 2008) [where ICE failed to comply with the 180-day review procedure under 8 CFR
§241.4(k)(2)(ii), Jamaican petitioner’s due process rights were violated and the court ordered his
conditional release]; Hashi v. Chertoff, 535 F.Supp.2d 1125 (S.D. Cal. 2008) [Somali kept in detention 9
months after final order is beyond presumptively reasonable period]; Andreasyan v. Gonzales, 446
F.Supp.2d 1186, 1189–92 (W.D. Wash. 2006) [where ICE asked for a few more weeks to deport LPR
ordered removed to Uzbekistan and ICE had not removed him 8 months later, removal was not
reasonably foreseeable]; Moallin v. Cangemi, 427 F.Supp.2d 908, 925–28 (D. Minn. 2006) [removal to
Somalia was not reasonably foreseeable]; Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 424–26 (M.D. Pa.
2004)[Palestinian detained for over 2 years subsequent to final removal order was granted release where
Honduras and Jordan would not accept him and there was no concrete evidence that Palestinian
authorities would accept him]; Rajigah v. Conway, 268 F.Supp.2d 159, 166–67 (E.D.N.Y. 2003) [the fact
that foreign government regularly issues travel documents does not make removal reasonably
foreseeable]; Habtegaber v. Jenifer, 256 F.Supp.2d 692, 697 (E.D. Mich. 2003) [ordering petitioner
released because no country would take him and the 6-month period began to run from the date of the
removal order and not from the date BIA appeal was withdrawn, see 8 CFR §1003.4]; Seretse-Khama v.
Ashcroft, 215 F.Supp.2d 37, 49 (D.D.C. 2002) [where Service did not carry its burden under 8 CFR
§241.13(f) of reasonable foreseeable removal by stating they had removed others to Liberia and where
respondent’s noncooperation consisted solely of telling the consulate he did not want to return to Liberia,
the court ordered his release]. But see also Diouf v. Mukasey, 542 F.3d 1222, 1232–33 (9th Cir. 2008)
(Diouf I) [detention could extend beyond 6 months where petitioner from Senegal failed to demonstrate
that there was no significant likelihood of removal in the future but court remanded to determine whether
petitioner was entitled to a bond hearing]; Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1251–57 (10th
Cir. 2008) [upholding the constitutionality of indefinite detention under 8 CFR §241.14(f) post-Clark and
post-Zadvydas]; Andrade v. Gonzales, 459 F.3d 538, 543–44 (5th Cir. 2006) [Zadvydas created “no
specific limit on detention” and the government could detain after 6 months where respondent failed to
meet his burden that there is not a significant likelihood of removal]; Khotesouvan v. Morones, 386 F.3d
1298 (9th Cir. 2004) [action may not be brought for release within the 90day period even if the
government concedes that removability is not reasonably foreseeable because INA §241(a)(2) mandates
detention for that period and Zadvydas construed INA §241(a)(6), not §241(a)(2)]; Wang v. Ashcroft, 320
F.3d 130, 145–47 (2d Cir. 2003) [due process not violated where court entered final order and removal is
imminent]; Akinwale v. Ashcroft, 287 F.3d 1050 (11th Cir. 2002) [placing burden on respondent to show
both “post-removal order detention in excess of six months” and evidence of reason to believe that there
is no significant likelihood of removal in the “reasonable foreseeable future”]; Clarke v. Kuplinski, 184
F.Supp.3d 255, 260-61 (E.D. Va. 2016) [where ICE taking steps to obtain respondent’s birth certificate in
cooperation with Jamaican government, it is reasonably foreseeable that they will deport him
notwithstanding his custody of more than one year]; Jiang Lu v. ICE, 22 F.Supp.3d 839 (N.D. Ohio 2014)
[respondent failed to show his deportation to China was not reasonably foreseeable]; Almonte v. Holder,
983 F.Supp.2d 234, 240 (W.D.N.Y. 2013) [relying in part on statistical evidence that DHS has deported
persons to the Dominican Republic as basis to argue removal is reasonably foreseeable]; Fofana v.
Holder, 947 F.Supp.2d 329 (W.D.N.Y. 2013) [detainee from Cote d’Ivoire failed to sustain initial burden to
show that his removal was not reasonably foreseeable]; Singh v. ICE, 771 F.Supp.2d 372 (D.N.J. 2011)
[petitioner failed to present any evidence that his removal was not reasonably foreseeable despite 16
months in detention]; Marquez-Coromina v. Hollingsworth, 692 F.Supp.2d 565 (D. Md. 2010) [followed
Hernandez-Carrera upholding 14-year detention of Mariel Cuban who had violent criminal history,
psychiatric instability and who refused to accept treatment]; Yacouba v. District Director, ICE, 593
F.Supp.2d 737 (M.D. Pa. 2008) [denying petition under Zadvydas where detainee failed on 2 occasions to
cooperate in removal and engaged in institutional misconduct]; Kumar v. Gonzales, 555 F.Supp.2d 1061,
1064–66 (N.D. Cal. 2008) [reading Zadvydas to be a statutory case and finding respondent’s one-year
detention permissible in absence of his showing removal is not reasonably foreseeable]; Kassama v.
DHS, 553 F.Supp.2d 301 (W.D.N.Y. 2008) [although petitioner was in custody for 21 months, he did not
meet his burden to demonstrate removal was not reasonably foreseeable where ICE contacted Gambian
embassy numerous times Page 701 to obtain travel documents and embassy stated it was investigating
the request]; NMA v. Ridge, 286 F.Supp.2d 469 (E.D. Pa. 2003) [habeas petition denied after 9 months of
detention where Liberian consulate stated it would issue travel document after interim government is
installed, and thus it was reasonably foreseeable that respondent would be deported]; Khan v. Fasano,
194 F.Supp.2d 1134 (S.D. Cal. 2001) [person failed to meet burden of showing that removal was not
reasonably likely to Pakistan].
10.d. Timing of Habeas Action—Fahim v. Ashcroft, 227 F.Supp.2d 1359 (N.D. Ga. 2002) [6 months must
accrue before habeas is filed and not during pendency of petition; petitioner failed to demonstrate no
significant likelihood of being sent back to Egypt because we have diplomatic relations and treaty that
permits return]. But see Olajide v. ICE, 402 F.Supp.2d 688, 691–93 (E.D. Va. 2005) [habeas seeking
release from detention post-removal order was ripe because petitioner had been in detention for more
than 6 months at the time the court was adjudicating the matter even though the petition had been filed
prior to 6 months].
10.e. Indefinite Detention in Special Circumstances—Subsequent to Zadvydas regulations were

promulgated authorizing continued detention of persons whose removal was not reasonably foreseeable
in “special circumstances.” 8 CFR §§241.14, 1241.14. See in this section ¶ 14.d (p.706), infra. The
regulations have been successfully challenged as ultra vires because the statute only authorizes
detention insofar as removal is reasonably foreseeable. Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008);
Tuan Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) [neither INA §241(a)(6), nor DHS regulations authorize
detention beyond 6 months because of mental illness or potential criminal conduct or danger to the
community]. But see Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008) [upholding the
constitutionality of indefinite detention under 8 CFR §241.14(f) post-Zadvydas and post-Clark as a
reasonable interpretation of INA §241(a)(6) under Brand X rationale and determining that the Supreme
Court’s construction in Zadvydas and Clark are not definitive and subject to Brand X]; Marquez-Coromina
v. Hollingsworth, 692 F.Supp.2d 565 (D. Md. 2010) [followed Hernandez-Carrera, accepted 241.14(f) as
valid and upheld 14-year detention of Mariel Cuban who had violent criminal history, psychiatric instability
and who refused to accept treatment]
10.f. Indefinite Detention of Inadmissible Persons—The Supreme Court determined that Zadvydas’ analysis
of 8 USC §1231(a)(6) applies to inadmissible persons. Clark v. Martinez, 543 U.S. 371 (2005) [following
Zadvydas and finding that inadmissible persons whose removal is not reasonably foreseeable must be
released after 6 months]; Morales-Fernandez v. INS, 418 F.3d 1116, 1122–25 (10th Cir. 2005) [post-Clark
finding it impermissible to hold Cuban beyond 6 months]. But see also Wilson v. Zeithern, 265 F.Supp.2d
628 (E.D. Va. 2003) [liberty interest of EWI attenuated in relation to an LPR under Zadvydas, although it
does not strip the EWI of all due process protections].
11. Timing the 90-Day Period—The 90-day removal period runs from the later of:
the final administrative order of removal

the date of the reviewing court’s final order if the removal order was judicially stayed pending federal
review
the date the person is released from non-DHS detention.
11.a. Final Administrative Order of Removal—INA §241(a)(1)(B)(i), Farez-Espinoza v. Chertoff, 600

F.Supp.2d 488, 497–503 (S.D.N.Y. 2009) [90-day period runs from the in absentia order and not from the
date person is taken into custody]; Habtegaber v. Jenifer, 256 F.Supp.2d 692, 697 (E.D. Mich. 2003) [90
days begins to run from the IJ order where the BIA appeal was withdrawn prior to entry of BIA order under
8 CFR §3.4 (now §1003.4)]; Dalis v. Brady, 766 F.Supp. 901, 905–07 (D. Colo. 1991) [removal order is
measured from the time a party failed to file a timely appeal, not from the BIA’s dismissal for untimeliness].
But see Fahim v. Ashcroft, 227 F.Supp.2d 1359 (N.D. Ga. 2002) [6 months did not begin to run until court
of appeals rejected underlying appeal].
11.b. Date of Reviewing Court’s Final Order if Removal Order Was Judicially Stayed Pending Federal
Review—INA §241(a)(1)(B)(ii) Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th Cir. 2002) [suggesting
that seeking a stay of removal constitutes an act to prevent removal and therefore tolls the 90-day period];
Rodriguez-Guardado v. Smith, 271 F.Supp.3d 331, 334-35 (D. Mass. 2017) Page 702 [statute does not
require only bad faith to toll 90 days and seeking a stay tolled period]; Lawal v. Lynch, 156 F.Supp.3d 846
(S.D. Tex. 2016) [6-month period to release is tolled where applicant filed habeas to challenge his
detention and removal]; Beckford v. Lynch, 168 F.Supp.3d 533, 538-39 (W.D.N.Y. 2016) [petition for
review and request for stay coupled with Second Circuit’s “forbearance policy” not to deport tolls the six
month period]; Newell v. Holder, 983 F.Supp.2d 241(W.D.N.Y. 2013) [same]; Flores v. Holder, 977
F.Supp.2d 243 (W.D.N.Y. 2013) [respondent’s two years of detention does not violate Zadvydas because
he sought a stay, pursued a petition for review, and failed to meet burden that removal is not reasonably
foreseeable]; Elcock v. Streiff, 554 F.Supp.2d 1279, 1284–85 (S.D. Ala. 2008) [respondent cannot prove
removal is not reasonably foreseeable due to numerous circuit court stays]; Greenland v. District Director,
INS/ICE/DHS, 599 F.Supp.2d 365 (W.D.N.Y. 2009) [despite lengthy pre–removal order detention petitioner
had only been in detention for 3 months post-removal and obtained a circuit court stay which tolled the
time period]; Dennis v. ICE, 426 F.Supp.2d 252, 254–55 (M.D. Pa. 2006) [detention for more than 2 years
did not yet trigger procedures for post-removal orders because a stay remained in effect until court of
appeals ruled on merits]; cf. Leslie v. U.S. Att’y Gen., 678 F.3d 265 (3d Cir. 2012); Casas-Castrillon v.
DHS, 535 F.3d 942, 947 (9th Cir. 2008) [where petitioner has filed a petition for review in the court of
appeals and obtained a stay INA §241 does not apply]; Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir.
2008) [same and finding that INA §236(a) applies]; Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) [where
removal order judicially stayed pending court of appeals review, 90-day removal period has not
commenced and detention is pursuant to INA §236 and not INA §241]; Bejjani v. INS, 271 F.3d 670, 689
(6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006)
[holding that INA §241 does not authorize detention pending judicial stay of removal]. But see Diouf v.
Mukasey (Diouf I), 542 F.3d 1222 (9th Cir. 2008) [where removal order became administratively final and
detainee did not file petition for review, removal period began and continued even though detainee filed
motion to reopen and then obtained stay of removal upon filing petition for review of denied motion to
reopen]; D’Alessandro v. Mukasey, 628 F.Supp.2d 368 (W.D.N.Y. 2009) (Magistrate, J) [agreed stay
pending decision does not toll 90-day period and prolonged detention for 16 months violated both
Zadvydas and agency regulations under 8 CFR §241.4(c), which ICE failed to follow]; Martinez v.
Gonzales, 504 F.Supp.2d 887, 897–98 (C.D. Cal. 2007) [nothing in INA §241(a)(1)(C) suggests that a
petitioner exercising his right to appeal or obtaining a stay stops the 90 days]; Bah v. Cangemi, 489
F.Supp.2d 905, 915–24 (D. Minn. 2007) [where stay was denied but circuit court ultimately granted
petition, the court counted the 6-month period between the denial of the stay and the reversal of the
removal order on appeal]; Moallin v. Cangemi, 427 F.Supp.2d 908, 921–24 (D. Minn. 2006) [the Ali
injunction granting a stay of physical removal to Somalia was not a stay of removal within the statute
which contemplated a stay pending review of a removal order]; Abdulle v. Gonzales, 422 F.Supp.2d 774
(W.D. Tex. 2006) [same]; Oyedeji v. Ashcroft, 332 F.Supp.2d 747 (M.D. Pa. 2004)[government could not
argue that 90-day period had not yet run by virtue of voluntary stay under 2nd Circuit procedure because
no formal stay order was issued. Respondent’s almost 5 years of detention was unjustified because the
paper review of his detention was inadequate and the court noted that even if one were to consider it a
stay “it does not toll the clock of the life of a person held in prison awaiting adjudication of the merits of his
challenge to the validity of a removal order”]; Arevalo v. Ashcroft, 260 F.Supp.2d 347 (D. Mass. 2003)
[seeking a stay of removal cannot be construed as a person acting to prevent removal].
Regardless of whether a stay prevents the commencement and/or running of the removal period so as to
trigger release under Zadvydas, a court can still enter an order providing for a bond hearing where the
length of detention raises constitutional concerns. Heredia v. Shanahan, 245 F.Supp.3d 521 (S.D.N.Y.
2017) [filing a stay in 2nd Circuit is equivalent to a stay being granted under forbearance policy; but even
if 90 days have be stayed it is a violation of due process to subject person to prolonged detention as an
arriving alien]; Judulang v. Chertoff, 535 F.Supp.2d 1129, 1132–33 (S.D. Cal. 2008) [detention lasting over
2½ years is unreasonable and district court ordered bond hearing before IJ over DHS objection that IJ lost
jurisdiction over bond matters under 8 CFR §1003.19(a) when administrative order became final]; Del
Toro-Chacon v. Chertoff, 431 F.Supp.2d 1135, 1140–43 (W.D. Wash. 2006) [although unclear whether the
person was detained under INA §236 or INA §241 the court determined it was a Page 703 violation of due
process to deny the person a bond hearing before a neutral adjudicator such as an IJ]. For a more
detailed discussion how INA §236 and INA §241 affect release from detention, see in this section ¶ 18
(p.709), infra.
11.c. Date Person Is Released from Non-DHS Detention—INA §241(a)(1)(B)(iii); Duamutef v. INS, 386 F.3d
172, 179–80 (2d Cir. 2004) [a conditional parole for deportation only by the N.Y. State Parole Board is not
a release from state custody triggering the 90-days]; Rodney v. INS, 462 F.Supp.2d 285, 287–89 (D.
Conn. 2006) [neither mandamus nor habeas provide jurisdictional basis because there is no clear right to
deportation prior to the expiration of term of incarceration, statute prohibits removal until sentence is
served and INS has no obligation to remove respondent prior to release from state custody, see 8 USC
§§1228(a)(3)(B), 1231(a)(1)(B)(iii), 1231(1)(4)(A)].
12. Tolling of 90-Day Period Due to Detainee’s Conduct
12.a. In General—Where the detainee refuses to cooperate in removal, the 90-day period is tolled. INA
§241(a)(1)(C), 8 USC §1231(a)(1)(C). This arises where the person has demonstrated bad faith failure to
cooperate in removal. Diouf v. Mukasey, 542 F.3d 1222, 1230–31 (9th Cir. 2008) [petitioner’s refusal to
turn himself in for removal tolled 90-day period but subsequent litigation during the petition for review did
not]; Lema v. INS, 341 F.3d 853 (9th Cir. 2003) [where person told Ethiopian officials he was Eritrean
habeas denial affirmed because “when an alien refuses to cooperate fully and honestly with officials to
secure travel documents from a foreign government, the alien cannot meet his or her burden to show
there is no significant likelihood of removal in the reasonably foreseeable future”]; Pelich v. INS, 329 F.3d
1057 (9th Cir. 2003) [refusing to fill out passport application and providing conflicting information regarding
background, no due process violation under Zadvydas]; Balogun v. INS, 9 F.3d 347 (5th Cir. 1993) [under
former statute 6 months tolled if detainee’s conduct prevented deportation]; Dor v. District Director, INS,
891 F.2d 997 (2d Cir. 1989) [5-year detention permissible under pre-IIRIRA statute where client obstructed
removal]; Leslie v. Herrion, 677 F.Supp.2d 651 (W.D.N.Y. 2010) [rejected prolonged detention claim where
delay due to petitioner’s false claim to U.S. citizenship for which he was separately charged and
convicted]; Yacouba v. District Director, ICE, 593 F.Supp.2d 737 (M.D. Pa. 2008) [denying petition under
Zadvydas where detainee failed on 2 occasions to cooperate in removal and engaged in institutional
misconduct]; Agbanyo v. Cabral, 518 F.Supp.2d 326 (D. Mass. 2007) [detainee told Liberian consulate he
was a USC]; Davis v. Gonzales, 482 F.Supp.2d 796 (W.D. Tex. 2007) [where Nigerian did not take overt
steps to thwart removal, but did not exhaust available resources in making a good faith effort toward
removal, habeas denied]; Olajide v. ICE, 402 F.Supp.2d 688, 693–95 (E.D. Va. 2005) [petitioner delayed
removal by insisting on an operation from an unqualified doctor when he was provided a qualified doctor];
Riley v. Greene, 149 F.Supp.2d 1256, 1262 (D. Colo. 2001) [refusal to complete travel documents];
Sango-Dema v. District Director, INS, 122 F.Supp.2d 213, 221 (D. Mass. 2000) [refusal to cooperate with
INS in obtaining travel documents]. The failure to cooperate may also result in criminal charges under 8
USC §1253(a)(1)(B). For a more extensive discussion of criminal charges, see in this chapter Section
VIII.W (p.411), supra.
But see Rodriguez-Guardado v. Smith, 271 F.Supp.3d 331, 334-35 (D. Mass. 2017) [statute does not
require bad faith and respondent obtaining a stay was sufficient to toll time for release]; Bah v. Cangemi,
489 F.Supp.2d 905, 922 (D. Minn. 2007) [a foreign government’s refusal to issue travel documents while
the applicant is seeking legal relief from his removal does not constitute an action by respondent
frustrating his removal under INA §241(a)(1)(C) and the court developed an “unencumbered-time”
approach to determine how to count the 90 days where a person was successful on appeal to the federal
court]; Khan v. Gonzales, 481 F.Supp.2d 638 (W.D. Tex. 2006) [rejecting government argument that
noncooperation included original acts of destroying passport before removal proceedings to Bangladesh
began]; Singh v. Gonzales, 448 F.Supp.2d 1214, 1218–20 (W.D. Wash. 2006) [where ICE fails to comply
with 8 CFR §§241.4(g)(1)(ii) and (5)(ii)and fails to provide respondent a Notice of Failure to Comply before
expiration of the removal period, the court ordered release]; Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418,
426–30 (M.D. Pa. 2004) [Palestinian detained for over 2 years subsequent to order was released where
misrepresentations about his identity occurred years before and he since cooperated]; Rajigah v. Conway,
268 F.Supp.2d 159, 164–67 (E.D.N.Y. 2003) Page 704 [no bad faith preventing release where detainee’s
counsel truthfully advised Guyanese Ambassador that he intended to file a court action and the policy of
the Guyanese government was to decline to issue travel documents while action was pending]; Seretse-
Khama v. Ashcroft, 215 F.Supp.2d 37, 49 (D.D.C. 2002) [telling consulate he did not want to return to
Liberia did not constitute noncooperation and court ordered release].
12.b. Measuring the Tolling Period—When the respondent obstructs removal, the court must determine the
effect of the obstruction on the 90 days. One approach would be that the obstruction tolls the period and
ICE would then have the remainder of the 90-day period to deport. Alternatively, where there is a lengthy
period of obstruction, the 90-day period can begin anew. Diouf v. Mukasey, 542 F.3d 1222, 1230–31 (9th
Cir. 2008) [90 days should start anew after a long period of obstruction].
12.c. DHS Procedures—DHS distinguishes between detainees who are subject to final orders of removal
that can presumably be effectuated, and detainees who are subject to final removal orders but whose
removal is not “significantly likely.” The former are governed by 8 CFR §§241.4. The latter by §§241.13 &
241.14, 1241.14; 66 FR 56967–82, 56969–70 (Sept. 14, 2001). DHS has authority to release a person
who has a final order of removal and who has been granted withholding or deferral of removal before the
90-day period has expired if it is not actively pursuing removal. Memo, Cooper, INS General Counsel,
HQCOU 50/1.1 (Apr. 21, 2000), reprinted in 77 No. 39 Interpreter Releases 1445, 1460 (Oct. 9, 2000). If
DHS determines there are changed circumstances so that a person who was not significantly likely to be
removed is now likely to be so, his case will be governed by §241.4, 66 FR at 56969; 8 CFR §§241.4(b)
(4). Section 241.13, however, does not apply to arriving aliens (e.g., Mariel Cubans) even if removal is not
significantly likely. Id. Mariel Cubans will continue to be governed by §212.12. Other arriving aliens with
final orders will be governed by §241.4. Section 241.13, however, will apply to inadmissible persons who
are EWI as they are not considered arriving aliens. Id. In any event, under Clark, all detainees must be
released when removal is not reasonably foreseeable.Where ICE failed to comply with the 180-day review
procedure under 8 CFR §241.4(k)(2)(ii), Jamaican petitioner’s due process rights were violated and the
court ordered conditional release. Bonitto v. ICE, 547 F.Supp.2d 747 (S.D. Tex. 2008).
12.d. Notice —In order to enhance its legal position as to the tolling of the 90-day period for noncooperation,
immigration authorities now place the detainee on notice, by form letter, that she is required to produce
documentation necessary to facilitate removal before DHS will consider her request for release including:
(1) copies of passports, birth certificates and other nationality documents; (2) copies of correspondence
indicating good faith efforts to obtain a passport from the country of nationality or the country indicated on
the order of removal; (3) copies of receipts and responses from embassies regarding travel documents;
and (4) any other evidence showing removal is not reasonably foreseeable. Letter to Detainee, INS
HQPDU, reprinted in 79 No. 18 Interpreter Releases 621, 637 (Apr. 29, 2002). However, DHS shall
provide a Notice of Failure to Comply to the detainee. 8 CFR §241.4(g)(5)(i)-(ii); Memo, Cerda, Acting
Director, ICE, Interim Guidance Regarding Post-Order Custody Reviews (POCR) After the Supreme Court
Decision in Clark v. Martinez (Jan. 21, 2005), AILA Doc. No. 09022075 [requiring service of I-229(a) and
Instruction Sheet and then 30-day follow-ups if failure to comply]; Singh v. Gonzales, 448 F.Supp.2d 1214,
1218–20 (W.D. Wash. 2006) [where ICE failed to comply with 8 CFR §§241.4(g)(1)(ii) and (5)(ii)and
provide respondent a Notice of Failure to Comply before expiration of the removal period, the court
ordered release under Zadvydas].
13. Detainees Subject to Final Orders of Removal within the 90-Day Removal Period
8 CFR §§241.4
13.a. Generally—Before making any decision to release, the Field Officer Director must conclude that: (1)
no travel documents are available for the detainee or removal is not otherwise practical or in the public
interest; (2) the detainee is presently a nonviolent person; (3) the detainee is likely to remain nonviolent if
released; (4) the detainee is not likely to pose a threat to the community following release; (5) the
detainee is not likely to violate the conditions of release; and (6) the detainee does not pose a significant
risk of flight if released. 8 CFR §§241.4(e). If the person is not a threat to public safety or a flight risk, the
Field Officer Director “should release the alien on Page 705 an order of supervision.” Memo, Hutchinson,
Undersecretary DHS (Mar. 30, 2004), “Guidance on ICE Implementation of Policy and Practice Changes
Recommended by the Department of Justice Inspector General,” AILA Doc. No. 04041461. The Field
Officer Director should also consider: (1) disciplinary problems while incarcerated; (2) the nature and
seriousness of the alien’s criminal convictions including time actually served, probation history and
evidence of recidivism; (3) psychiatric and psychological reports regarding detainee’s mental health; (4)
rehabilitation; (5) favorable factors such as ties to the U.S. including the number of close relatives; (6)
prior immigration violations and history; (7) the likelihood he or she is a significant flight risk; and (8) other
information that is probative of whether alien is likely (i) to adjust to life in the community; (ii) engage in
future acts of violence; (iii) engage in future criminal acts; (iv) pose a danger to himself, others or property;
(v) violate the conditions of release. 8 CFR §241.4(f). Review will be denied if the detainee refuses to
cooperate in the process of obtaining travel documents. 8 CFR §241.4(g)(4). Rodriguez-Guardado v.
Smith, 271 F.Supp.3d 331, 335 (D. Mass. 2017) [no hearing required under 8 CFR §§241.4(e)-(f) because
8 CFR §241.4(g)(4) does not mandate a hearing before ICE where removal is imminent]. Past failure to
cooperate in obtaining a travel document shall be considered an adverse factor but the existence of a
criminal history does not create a presumption in favor of continued detention. Memo, Pearson, Exec.
Assoc. Comm. (HQOPS 50/14.6-C) (Aug. 6, 1999), reprinted in 76 No. 33 Interpreter Releases 1285,
1300–03 (Aug. 30, 1999). Failure or refusal to make timely application in good faith for travel documents
is a basis, without more, to deny release. 8 CFR §241.4(g)(5)(i). DHS shall provide a notice of failure to
comply. §241.4(g)(5)(ii). See D’Alessandro v. Mukasey, 628 F.Supp.2d 368 (W.D.N.Y. 2009) (Magistrate,
J) [agreed stay pending decision does not toll 90-day period and prolonged detention for 16 months
violated both Zadvydas and agency regulations under 8 CFR §241.4(c), which ICE failed to follow].
13.b. Procedure for Review [ 8 CFR §§241.4(h)–(k)]
(1) First Review—The Field Officer Director is required to review every case on the administrative record
before the 90-day removal period expires. Must provide the detainee with 30 days’ notice to submit
additional information and may grant an interview at his or her discretion. The Field Officer Director
may hold the case an additional 90 days to make a further determination as to release or detention.
(2) Second Review by Panel—If the Field Officer Director continues the detention, the Executive
Associate Commissioner shall have a panel review the case. The detainee has a right to a personal
interview before the panel and may be accompanied by a person of his or her choice. 8 CFR §241.4(i)
(3). The Executive Associate Commissioner is not bound by the panel’s determination. The review by
the panel would normally take place after 6 months, although Zadvydas prohibits detention for more
than 6 monthsfrom the final order where removal is not reasonably foreseeable.
(3) Extension of 90-Day Period—The 90-day period for removal is extended pursuant to INA §241(a)(1)
(C) where the detainee “fails or refuses to make timely application in good faith for travel or other
documents necessary” to depart the U.S. 8 CFR §241.4(g)(1)(ii). DHS shall provide Notice of Failure to
Comply to the detainee and the notice shall extend the removal period. §241.4(g)(5)(i)–(ii). Singh v.
Gonzales, 448 F.Supp.2d 1214, 1218–20 (W.D. Wash. 2006) [where ICE fails to comply with 8 CFR
§§241.4(g)(1)(ii) and (5)(ii)and provide respondent a Notice of Failure to Comply before the expiration
of the removal period, the court ordered release].
14. Detainees Subject to Final Order of Removal Where There Is No Significant Likelihood of Removal in
Reasonably Foreseeable Future
8 CFR §§241.13–.14, 1241.14
14.a. Presenting Claim—A detainee may seek release under this provision “at any time after the removal
order becomes final” even if it is within the 90-day period if “there is no significant likelihood of removal in
the reasonably foreseeable future.” 66 FR at 56970; 8 CFR §241.4(i)(7). However, DHS Headquarters
Post-Order Detention Unit (HQPDU) “has no obligation to release an alien under this section until HQPDU
has had the opportunity during a six-month period, dating from the beginning of the removal period … to
make its determination as Page 706 to whether there is a significant likelihood of removal in the
reasonably foreseeable future.” 8 CFR §241.13(b)(2)(ii). The criteria to determine if removal is reasonably
foreseeable are at 8 CFR §241.13(f).
14.b. Provision Does Not Apply to Certain Detainees—Section 241.13, does not apply to: (a) arriving aliens
including those denied entry, paroled into the U.S. and Mariel Cubans; (b) detainees with final orders of
removal who are within the removal period (90 days) including persons whose removal period was
extended because of noncooperation; (c) detainees who are ordered removed by the Alien Terrorist
Removal Court pursuant to Title 5 of the INA. 8 CFR §241.13(b)(3)(i)–(iii). However, post–Clark v.
Martinez, these regulations are ultra vires as applied to arriving aliens, including Mariel Cubans, all of
whom are entitled to the foreseeability reviews and release procedures provided under the regulations.
See e.g., Morales-Fernandez v. INS, 418 F.3d 1116, 1122–25 (10th Cir. 2005) [post-Clark finding it
impermissible to hold Cuban beyond presumptively reasonable 6-month period].
14.c. Procedure for Release [8 CFR §241.13(d)]
(1) Must make written request to HQPDU demonstrating there is no significant likelihood of release in the
reasonably foreseeable future. Request “shall” include information regarding the detainee’s
cooperation in obtaining travel documents. §241.13(d)(2).
(2) Within 10 days of receipt HQPDU will respond in writing to the detainee, with a copy to counsel,
explaining the procedures that will be used to evaluate the request. §241.13(e). If HQPDU determines
that the detainee has not cooperated in obtaining travel documents, it shall notify her of that fact and
no further action will be taken until the detainee complies. If HQPDU determines there are further
grounds to review the request, it may forward a copy of the request to DOS for information and
assistance.
(a) HQPDU in evaluating the request shall consider factors including but not limited to: (1) the history
of the detainee’s efforts to comply with the order of removal; (2) the history of DHS’s efforts to
remove persons to the country in question or to third countries including (a) the ongoing nature of
DHS’s efforts to remove the detainee, (b) the detainee’s assistance with those efforts, (c) the
reasonably foreseeable results of those efforts, (d) the view of DOS regarding the prospects for
removal, and (e) the receiving country’s willingness to accept the detainee into its territory.
§241.13(f).
(b) Thereafter, DHS shall permit the detainee an opportunity to respond to the evidence on which
DHS shall rely including DOS’s information. §241.13(e)(4). HQPDU may grant the detainee an
interview by telephone or in person.
(3) HQPDU Decision—The HQPDU may decide the following: (1) there is no significant likelihood of
removal and, absent special circumstances pursuant to 8 CFR §241.14, DHS “shall promptly make
arrangements for [his] release.” §241.13(g)(1); (2) deny release by informing the detainee that there is
a significant likelihood of removal in the reasonably foreseeable future. There is no appeal. §241.13(g)
(2).
(a) HQPDU may set conditions for release under an order of supervision such as requiring the
detainee to make efforts to obtain travel documents and attendance at rehabilitative/sponsorship
programs. §241.13(h). DHS may also grant employment authorization. §241.13(h)(2).
i) For persons granted release after long term detention, ICE may provide clothing, limited financial
assistance with transportation to the release destination, and a small amount of funds. Memo,
Cerda, Acting Director, ICE, Policy Guidance on Implementation of Release Gratuity Program
for Qualified Aliens Eligible for Release Following Long-Term Immigration Detention (Feb. 18,
2005), AILA Doc. No. 09121563.
(b) DHS may also withdraw or revoke release if removal is reasonably foreseeable or detainee has
violated conditions of release. §§241.13(h)(4) & (i), 1241.14(h)(4) & (i). DHS must notify the person
of the reasons for revocation. §241.13(i)(3). See 8 USC §1253(b) [criminal prosecution for willful
violation of conditions of release]. Page 707
14.d. Special Circumstances Requiring Continued Detention Even if Return is Not Reasonably Foreseeable
[ 8 CFR §§241.14, 1241.14]—Under these regulations, promulgated subsequent to Zadvydas and prior to
Clark, DHS is purportedly authorized to continue detention of persons whose removal is not reasonably
foreseeable where:
(1) Detention Due to Highly Contagious Disease—DHS shall not invoke this provision except upon the
express recommendation of the Public Health Service. If detainee can be treated at an appropriate
medical facility he may be released. 8 CFR §§241.14(b)(1) and (2).
(2) Detention Due to Foreign Policy Consequences—This section can only be invoked if the AG or
Deputy AG, after consultation with DOS and recommendation of the Secy. of State, certifies the
detainee should not be released because of foreign policy consequences. Certification is subject to on-
going review. 8 CFR §241.14(c)(2).
(3) Detention Due to Security or Terrorism—DHS must certify this ground of detention to the AG. Before
certification the detainee must be notified of the factual basis for the decision and be given an
opportunity to respond. If the detainee was not ordered deported on security/terrorism grounds, DHS
must first conduct an interview and take a sworn statement from the detainee who has the right to
have counsel present. Before making the certification to the AG, the party making the certification shall
take into account: (1) the recommendations of DHS officials and the FBI or other law enforcement and
national security agencies; (2) the detainee’s statements; (3) the detainee’s previous conduct and (4)
other special circumstances. DHS’s recommendation to the AG shall be in writing and the AG shall
certify the detention based on the record developed by DHS and upon the recommendation of the FBI
and DHS. 8 CFR §§241.14(d)(2)–(5). This regulation in addition to being ultra vires is arguably
superfluous in light of the USA PATRIOT Act §412(a), 115 Stat. 350 (enacted Oct. 25, 2001) (codified
at 8 USC §1226a(a)(6)), which provides that a person whose removal is not reasonably foreseeable
and who has been certified by the AG as presenting a national security threat or as having been
involved in terrorist activities may be detained beyond the removal period in 6-month increments. Clark
v. Martinez, 543 U.S. 371, 387 (O’Connor J. concurring) [citing 8 USC §1226a(a)(6) [INA §236A] as
support for the Court’s holding that INA §241(a)(6) does not authorize indefinite detention because
“[t]he Government has other statutory means [apart from §241(a)(6)] for detaining aliens whose
removal is not foreseeable and whose presence poses security risks”]; Nadarajah v. Gonzales, 443
F.3d 1069 (9th Cir. 2006) [“The Supreme Court has held that the existence of statutes authorizing the
detention of suspected terrorists specifically precludes the use of general detention statutes to
authorize the unlimited detention of terrorists”].
(4) Detention Due to Special Danger to Public—DHS shall request a report from the PHS on the medical
and psychiatric condition of the detainee. The report should address whether, given the detainee’s
condition, he is likely to engage in acts of violence in the future. If DHS finds that the detainee poses a
special danger and orders continued detention, he shall refer the matter to an IJ for a hearing. The IJ
shall first determine whether there is reasonable cause for the decision and the hearing shall
commence within 10 business days of filing an I-863. Only DHS may appeal a decision at this stage.
The IJ will hold a merits hearing if there is reasonable cause. Either party may appeal that decision. 8
CFR §§241.14(f), 1241.14(f). EOIR has set forth procedures for IJs in regard to reasonable cause and
merit hearings. Memo [OPPM 01-03], Creppy, Chief IJ, EOIR (Nov. 19, 2001), reprinted in 79 No. 3
Interpreter Releases 66, 74–83 (Jan. 14, 2002).
15. Challenges to Regulations—The “especially dangerous” regulations, 8 CFR §§241.14(f), 1241.14(f) have
been successfully challenged as ultra vires in light of Zadvydas and Clark. Tuan Thai v. Ashcroft, 366 F.3d
790 (9th Cir. 2004) [absent a national security threat neither §1231(a)(6), nor DHS regulations permit
continued detention beyond Zadvydas period because of mental illness or potential criminal conduct danger,
and finding regulation ultra vires]; Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008) [under Zadvydas and Clark,
the government may not detain a person indefinitely pursuant to §241.14(f) on the grounds the person is a
threat to the public due to his mental illness]. In Tran the court stated: “The Supreme Court has twice held
that §1231(a)(6) does not authorize indefinite detention for any class of aliens covered by the statute” and
“based on the clear language of Clark, this Court must conclude that the presumptive six-month period
established in Zadvydas is applicable to Page 708 all categories of aliens covered by the statute.” But see
Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008) [upholding 8 CFR §241.14(f) as a reasonable
interpretation of INA §241(a)(6) under Brand X rationale and determining that the Supreme Court’s
construction in Zadvydas and Clark are not definitive and are subject to Brand X]; Marquez-Coromina v.
Hollingsworth, 692 F.Supp.2d 565 (D. Md. 2010) [followed Hernandez-Carrera, found continued detention
permissible under 241.14(f) and upheld 14-year detention of Mariel Cuban who had violent criminal history,
psychiatric instability and who refused to accept treatment].
16. Supervised Release and the ISAP Program—If a person is not physically deported and is released he will
be subject to supervision of ICE. INA §241(a)(3), 8 USC §1231(a)(3). See in this part “Alternatives to
Physical Incarceration,” ¶ N.5.g (p.484), supra.
16.a. ISAP Program—ICE, through private contract, now maintains an Intensive Supervision Appearance
Program (ISAP) that utilizes electronic “bracelets” and other intense supervision and reporting devices
and procedures to ensure close and frequent contact with an individual granted supervised release. The
ISAP program is used for 3 categories of respondents: (1) those in removal proceedings who have not
been issued final orders of removal and may be a flight risk; (2) those who have been issued final orders
and are considered potentially dangerous but cannot legally be held in custody any longer; and (3) those
with final orders who have been released but who have violated their orders of supervision by committing
crimes or otherwise failing to comply with release conditions. There are 3 phases of the program: intense,
intermediate and regular. For a detailed description of the program see Nguyen v. B.I. Inc., 435 F.Supp.2d
1109 (D. Or. 2006) [finding no substantive or procedural due process violation for post-removal
noncitizens place in ISAP; nor does ISAP violate the APA notice and comment requirements].
16.b. Bond Conditions for Supervised Release—DHS may place reasonable conditions on release, including
bond. Doan v. INS, 311 F.3d 1160 (9th Cir. 2002) [$10,000 bond is a reasonable condition of release after
90-days]; Cao v. INS, 189 F.Supp.2d 1082 (S.D. Cal. 2001) [upholding bond regulation at 8 CFR
§241.5(b)]. Cf. Hmaidan v. Ashcroft, 258 F.Supp.2d 832, 838–40 (E.D. Ill. 2003) [it is inconsistent with
Zadvydas to permit the Service to set a bond that a detainee is unable to post].
16.c. Order of Supervision (OSUP) Procedure—If a person is granted an Order of Supervision, ICE officers
must: (1) establish reporting requirements for the person by giving them a specific date to report (and not
a general date such as “the second Tuesday of each month”); (2) list the call-up date in the DACS system;
(3) obtain specific information to be placed in DACS including the person’s next of kin, address, and place
of employment; (4) update the information each time the person reports; (5) query the NCIC (National
Crime Information Center) system before the person’s reporting date; (6) have the person bring utility bills
or other current documentation to prove current address; and (7) advise the person as to his or her
requirements, her current status, and answer any questions she may have. Noncriminal persons should
report every 6 months; criminals once a month; LPRs once every 2 months; and asylum applicants once
every 6 months. Memo, Cerda, Acting Director ICE, Orders of Supervision (Nov. 12, 2004), AILA Doc. No.
10072768. It is not a violation of due process to require a respondent indefinitely to make semi-annual
appearances before ICE as a condition of his Order of Supervision. Ali v. Beers, 988 F.Supp.2d 88 (D.
Minn. 2013). Persons with orders of supervision may obtain employment authorization. 8 CFR
§274a.12(c)(18). If an individual is taken off OSUP because he is not an enforcement priority, he may go
to the local ERO office and ask to have OSUP reinstated. AILA/ICE Liaison Meeting Minutes (Apr. 7,
2016) at 3, AILA Doc. No. 16081601.
16.d. Criminal Proceedings and Supervised Release—Failure to comply with an order of supervised release
can result in criminal proceedings under 8 USC §1253(b). See in this chapter “Willful Failure to Comply
with Terms of Release Order,” Section VIII.Y (p.412), supra.
16.e. Challenging Conditions of Long-Term Supervision—Yusov v. Shaughnessy, 671 F.Supp.2d 521, 529–
30 (S.D.N.Y. 2009) [court has jurisdiction to review long term supervision conditions but found 3-month
reporting requirement constitutional].
16.f. IJ Authority to Order ISAP—During the course of proceeding an IJ has the authority to order ISAP.
Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (Rodriquez III), rev’d on other grounds Jennings v.
Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018) [requiring IJs to consider Page 709 alternatives to detention
when conducting a bond hearing for individuals in prolonged detention].
17. Federal Jurisdiction over Detention during Removal Process—A writ of habeas corpus may be brought
to challenge indefinite detention notwithstanding various preclusion statutes. Zadvydas v. Davis, 533 U.S.
678, 687–88 (2001) [INA §§236(e), 242(a)(2)(B)(ii), 242(a)(2)(C), 242(g) did not bar habeas jurisdiction for
challenge to post-removal order indefinite detention]; Fahim v. Ashcroft, 227 F.Supp.2d 1359, 1365–68 (N.D.
Ga. 2002).
17.a. Effect of REAL ID Act—With the passage of the REAL ID Act of 2005, PL 109-13, 119 Stat. 231,
Division B §106 (May 11, 2005), Congress sought to eliminate habeas, mandamus and All Writs
jurisdiction in the district courts in regard to “judicial review of an order of removal entered or issued under
any provision of this Act.” INA §242(a)(5). Habeas was also eliminated for matters covered under INA
§§242(b)(9), (g). The Act, however, no longer bars the court of appeals from considering constitutional
claims or questions of law in a petition for review even where other sections (e.g., criminal aliens,
discretionary decision, §242(g)) would bar or limit review. The legislative history of the Act also makes
clear that it “will not preclude habeas review over challenges to detention that are independent of
challenges to removal orders. Instead, the bill would eliminate habeas review only over challenges to
removal orders.” Joint Explanatory Statement of the Committee of Conference, H.R. Cong. Rep. No 109-
72 at 173–75, 151 Cong. Rec. H2836, 2873 (May 3, 2005). See also Flores-Torres v. Mukasey, 548 F.3d
708 (9th Cir. 2008) [cannot preclude review of a challenge to detention based upon a claim to USC
status]; Hernandez v. Gonzales, 424 F.3d 42 (1st Cir. 2005) [remanding habeas detention challenge by
Mariel Cuban back to district court because habeas challenge to detention may be brought post–REAL
ID]; Ali v. Gonzales, 421 F.3d 795, 797 n.1 (9th Cir. 2005) [REAL ID does not apply to matters outside of
challenges to removal orders and the court declined to transfer a habeas case to the circuit court where
petitioners challenged solely their physical removal]; Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d
Cir. 2005); Moallin v. Cangemi, 427 F.Supp.2d 908, 918–21 (D. Minn. 2006) [citing REAL ID legislative
history a Somalian detained subsequent to his removal order can challenge custody as violative of the
constitution]; Abdulle v. Gonzales, 422 F.Supp.2d 774, 776 (W.D. Tex. 2006) [REAL ID does not preclude
habeas related to detention only]. But see Deljevic v. Baker, 463 F.Supp.2d 699 (E.D. Mich. 2006) [no
habeas jurisdiction to review detention where there is final order of removal and detention is challenged
on ground that final order was improper].
17.b. Exhaustion and Ripeness—Generally, a detainee need not exhaust his administrative remedies before
seeking habeas review. See Ch. 10, ¶ IV.B.13.c (p.1887), infra. However, there may be a ripeness issue if
the person was not in custody for six months. Ali v. Barlow, 446 F.Supp.2d 604, 609–10 (E.D. Va. 2006)
[where respondent was not in custody for 6 months subsequent to the final order, Zadvydas claim for
release is not ripe].
18. Application of INA §236 or INA §241—When a detainee seeks federal court review of his detention, the
government maintains that the post–final-order detention statute, INA §241, governs their detention and that
a court may not order respondent’s release. See INA §241(a)(2) [during removal period, AG shall detain
respondent and under no circumstances shall he be released if he is being detained under 237(a)(2)
regarding criminal grounds]. See e.g., Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2018) [detention of a
person in a reinstated removal proceeding under INA §241(a)(5), even if also a withholding only proceeding,
is governed by INA §241 during the removal period and not INA §236]; De Souza Neto v. Smith, 272
F.Supp.3d 228 (D. Mass. 2017) [same]; Crespin v. Evans, 256 F.Supp.3d 641 (E.D. Va. 2017) [same];
Andrade v. Gonzales, 459 F.3d 538, 542–43 (5th Cir. 2006) [government deflected a challenge to prolonged
mandatory detention by successfully arguing that once respondent had a final order and no stay of removal
his detention was governed by INA §241 and not INA §236(c)]; Diaz v. Hott, No. 1:17-cv-1405 (LMB/MSN),
2018 WL 1042800 (E.D. Va. Feb. 26, 2018) [certifying a class and granting right to withholding only
applicants to a bond hearing because a person who has filed a withholding application in a INA §241(a)(5)
proceeding falls with INA §236 not INA §241(a) for purposes of a bond hearing]; Romero v. Evans, 280
F.Supp.3d 835, 843-48 (E.D. Va. 2017) [same for individual habeas petitioners]; Reid v. Donelan, 64
F.Supp.3d 271 (D. Mass. 2014) [maintaining the distinction but granting injunctive relief to those persons who
were in 236(c) proceedings or asked for or had stays of removal at time of injunctive order]; Carbajal v.
Holder, 43 F.Supp.3d 1184 (D. Colo. 2014) Page 710 [challenge to mandatory detention during pre-removal
proceedings became moot once BIA issued final order]; Castillo v. Gillen, 881 F.Supp. 236 (D. Mass. 2012)
[same]; Quezada v. Hendricks, 821 F.Supp.2d 702, 705-08 (D.N.J. 2011) [habeas challenging pre-removal
detention was moot once order of removal was administratively final and circuit denied a stay]. But see
Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016) [a person who has filed a withholding application in a INA
§241(a)(5) proceeding falls within INA §236 not INA §241(a) for purposes of a bond hearing]; Brevil v. Jones,
283 F.Supp.3d 205, 211-12 (S.D.N.Y. 2018) [once Second Circuit granted a stay of removal, ICE’s authority
to detain petitioner reverted to INA §236 and not INA §241]; Castillo v. ICE Field Office Director, 907
F.Supp.2d 1235, 1240-41 (W.D. Wash. 2012) [respondent’s application for withholding in the context of
reinstatement subjects him to INA §236 and not INA §241]. Prior decisions ignoring the distinction between
INA §236 and §241 because prolonged detention is impermissible however the statutes are characterized
have now be called into question, at least as a statutory matter, in light of Jennings v. Rodriguez, 583 U.S.
__, 138 S.Ct. 830 (2018) [no statutory basis to challenge prolonged detention].
The determination as to what periods of time will be counted as a pre–final order under Demore as opposed
to a post–final order so as to trigger Zadvydas’s presumptive 6-month limit is not always clear. See e.g.,
Casas-Castrillon, 535 F.3d at 945 [AG’s authority “shifts as the alien moves through different phases of
administrative and judicial review”]; Bah v. Cangemi, 489 F.Supp.2d 905, 915–24 (D. Minn. 2007) [ordering
habeas applicant’s release under Zadvydas by utilizing an “unencumbered-time” approach in determining
which periods of time were stopped for the 90-day/6-month time period due to respondent’s conduct and
which were considered post-order removal because no stay had been granted by the circuit court]; Owino v.
Napolitano, 575 F.3d 952 (9th Cir. 2009) [following rule in Casas-Castrillon where the court remanded the
merits case and thus changed the bond status from §241 to §236]. But authority provides for release even
where the government asserts that the 90 days of post–removal-order detention have not been reached
because of a stay of removal.Oyedeji v. Ashcroft, 332 F.Supp.2d 747 (M.D. Pa. 2004)[government could not
argue that 90-day period had not yet run by virtue of voluntary stay under 2nd Circuit procedure that
respondent had received after appealing his case to circuit court where no formal stay order was entered.
Respondent’s almost 5 years of detention was unjustified because the paper review of his detention was
inadequate and the court found that even if a stay of removal would technically suspend the 90-day time
period “it does not toll the clock of the life of a person held in prison awaiting adjudication of the merits of his
challenge to the validity of a removal order”]; Bourguignon v. MacDonald, 667 F.Supp. 175, 183 (D. Mass.
2009) [27 months in detention contesting right to CAT, even where some of those months could be
considered governed by Zadvydas requires release as “simple fairness, if not basic humanity, dictates that a
court should take into consideration the entire period in which a person has lost his liberty”].
19. Adam Walsh Act and BOP/ICE Detention—Under the Adam Walsh Act, 18 USC §4248(a), a person
committed to the custody of the AG (BOP) whose criminal charges are dismissed solely for reasons related
to mental condition may be kept in BOP custody if he is a sexually dangerous person. ICE may keep long-
term inadmissible persons in BOP custody. Does that mean that the person is subject to the Adam Walsh Act
provision because he poses a risk of sexual misconduct? In U.S. v. Hernandez-Arenado, 571 F.3d 662 (7th
Cir. 2009) the Seventh Circuit found that he did not and was therefore subject to release under Clark and
could not be held indefinitely under the Adam Walsh Act provision.
20. Withholding or Deferral of Removal—DHS has authority to release a person who has a final order of
removal and who has been granted withholding or deferral of removal before the 90-day period has expired if
it is not actively pursuing removal. Memo, Cooper, INS General Counsel, HQCOU 50/1.1 (Apr. 21, 2000),
reprinted in 77 No. 39 Interpreter Releases 1445, 1460 (Oct. 9, 2000).
21. Self-Removal— 8 CFR §§241.7, 1241.7. Field Officer Director may permit an alien ordered removed to
depart at his or her own expense to a destination of his or her choice.
22. Employment Authorization—A person ordered removed is ineligible for EA unless person cannot be
removed because receiving country would not take him or his removal is impractical or contrary to public
interest. INA §241(a)(7), 8 USC §1231(a)(7).
23. Absconders—The Service initiated an Absconder Apprehension Initiative in order to identify persons who
have final orders of removal and to ascertain: (1) whether they pose a terrorist threat; (2) whether they will be
criminally charged under 8 USC §1253 for failure to depart after a final Page 711 order of removal has been
issued; or (3) whether they will be taken into custody and physically deported promptly. When an “absconder”
is apprehended and interviewed she must be given warnings under Miranda v. Arizona, 384 U.S. 436 (1966)
and be informed that consular officials may be notified of her detention under the Vienna Convention on
Consular Relations. Thompson, Memo, Deputy AG (Jan. 25, 2002), AILA Doc. No. 03100648.
24. Due Process Right to Organize Affairs Before Physical Deportation—Ragbir v. Sessions, No. 18-cv-
236 (KBF), 2018 WL 623557 (S.D.N.Y. 2018) [due process right to organize affairs before being physically
removed after living in U.S. for many years].
25. Enforcement Priorities Including Detention—ICE previously established several different and confusing
priority systems for apprehension of undocumented immigrants: Memo, Torres, Acting Director, ICE “Fugitive
Operations Case Priority and Annual Goals (Jan. 31, 2006), AILA Doc. No. 09020562 [requiring average,
annual, per-team production target at 1,000 fugitive arrests but allowing for nonfugitive arrests in the total
when the operation is approved by DRO headquarters]. But see Letter, Morton, Asst. Secretary, ICE to
Stakeholder Participants (Mar. 30, 2010), AILA Doc. No. 10033166 [stating opposition to quotas after
issuance of a memo regarding quotas by his subordinates]; Memo, Chapparo, Director, ICE, “Compliance
with Congressional Provisions and Priorities for the Remainder of Fiscal Year 2010 (Mar. 26, 2010), AILA
Doc. No. 10033165. Memo, Morton, Director, ICE, Civil Immigration Enforcement, Policy No. 10072.1, FEA
No. 601-14 (Mar. 2, 2011), AILA Doc. No. 11030323 (superseded by Johnson memo) Memo, Johnson, Sec.
DHS, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014),
AILA Doc. No. 14112004 (superseded by EO 13767, EO 13768.
26. DHS Priorities—For current enforcement policy that allows ICE to pick up anyone it finds unlawfully in the
U.S., see in this chapter “Detention of Inadmissible Persons…” ¶ IV.M.3 (p.235), supra. See also in this
chapter “Catch and Release Policy,” ¶ IV.D.4.c (p.228), supra. See e.g., Memo, Kelly, Enforcement of the
Immigration Laws to Serve the National Interest (Feb. 20, 2017) at ¶C, AILA Doc. No. 17021830[In addition
to these priorities DHS personnel “have full authority to arrest or apprehend an alien whom an immigration
officer has probable cause to believe is in violation of the immigration laws. They also have full authority to
initiate removal proceedings against any alien who is subject to removal under any provision of the INA and
to refer appropriate cases for criminal prosecution.”];Fact Sheet: Executive Order 13767: Border Security and
Immigration Enforcement Improvements (Feb. 21, 2017), p. 2, AILA Doc. No. 17022169 [“Under this
executive order, with extremely limited exceptions, DHS will not exempt classes or categories of removal
aliens from potential enforcement. All of those in violation of the immigration laws may be subject to
enforcement proceedings, up to and including removal from the United States.”].
W. Stays of Deportation
1. Procedure—Respondent may petition the ICE FOD (8 CFR §§241.6, 1241.6), the IJ ( 8 CFR §1003.23(b)(1)
(v)) and the BIA (8 CFR §1003.6) to stay removal. The filing of a federal petition or action “shall not delay
execution of the Warrant of Removal except upon an affirmative order of the court.” 8 CFR §241.3(c).
Petitioner is not required to seek a stay from both the BIA and the FOD. Naragan v. Ilchert, 799 F.Supp.
1047, 1049 (N.D. Cal. 1992). Where a stay is sought to permit judicial review of a nonfrivolous claim that has
not been decided by a circuit court or the Supreme Court, the stay should be granted. Biancada v. Turnage,
883 F.2d 836 (9th Cir. 1989). Where stay is sought to reopen BIA proceedings, BIA abused its discretion in
denying request, Anderson v. McElroy, 953 F.2d 803 (2d Cir. 1992), particularly where the decision was
“merely conclusory.” Butros v. INS, 804 F.Supp. 1336 (D. Or. 1991).
2. Jurisdictional Question—DHS views INA §242(g), 8 USC §1252(g) as interpreted byReno v. American-
Arab Anti-Discrimination Comm., 525 U.S. 471 (1999), as barring any action in federal district court to stay
removal of a noncitizen. Moussa v. Jenifer, 389 F.3d 550, 554–55 (6th Cir. 2004) [although habeas petitioner
raised statutory and constitutional claims regarding the denial of motion to stay they were nothing more than
an effort to review the nonreviewable discretionary decision of the DD to execute an order of removal barred
by INA §242(g)]; Fedorca v. Perryman, 197 F.3d 236 (7th Cir. 1999); Botezatu v. INS, 195 F.3d 311 (7th Cir.
1999); Garcia v. Holder, 788 F.Supp.2d 326, 331-32 (S.D.N.Y. 2011) [court barred from issuing stay of
removal pending BIA’s consideration of motion Page 712 to reopen]. However, where the court has habeas
jurisdiction to review deportability, its ancillary jurisdiction to stay deportation pending review is not barred by
INA §242(g) or American-Arab. Wallace v. Reno, 194 F.3d 279, 285 (1st Cir. 1999). See also Hope v. ICE,
349 F.Supp.2d 490, 495 (E.D.N.Y. 2004) [stay of removal granted pending motion to reopen before the BIA];
INA §242(g). The REAL ID Act, however, has dramatically changed the landscape and generally prohibits
district court action entirely. After the REAL ID Act, district courts have divided on their power to stay.
Compare Benitez v. Dedvukaj, 656 F.Supp.2d 725, 729 (E.D. Mich. 2009) [no jurisdiction, post REAL ID, to
issue stay of removal sought pending adjudication of AOS]; Tejada v. Cabral, 424 F.Supp.2d 296 (D. Mass.
2006) [although district court has jurisdiction to review the validity of noncitizen’s state conviction, no
jurisdiction post–REAL ID to review noncitizen’s removal proceeding and therefore has no jurisdiction to
issue a stay of removal] with Sied v. Nielsen, No. 17 Civ.6785, 2018 WL 1142202 (N.D. Cal. Mar. 2, 2018);
Chhoeun v. Marin, No. 17 Civ. 1898, 2018 WL 566821 (S.D. Cal. Jan. 25, 2018); Gbotoe v. Jennings, No. 17
Civ. 6819, 2017 WL 6039713 (N.D. Cal. Dec. 6, 2017) [INA §242(g) does not bar district court from issuing
stay pending completion of motion to reopen process] and Ibrahim v. Acosta, No. 17 Civ. 24574, 2018 WL
582520 (S.D. Fla. Jan. 26, 2018); Devitri v. Cronen, No. 17 Civ. 11842, 2017 WL 570752 (D. Mass. Nov. 27,
2017) (“Devitri I”); Hamama v. Adducci, 258 F.Supp.3d 828 (E.D. Mich. 2017) [finding INA §242(g)
unconstitutional and issuing stay of removal pending completion of motion to reopen process]. A stay may be
sought in the circuit court of appeals during the course of a petition for review, Nken v. Holder, 556 U.S. 418
(2009) or in the Supreme Court pending a petition for certiorari. Trump v. International Refugee Assistance
Project, 582 U.S. __ (2017) [granting a partial stay of an injunction] See Chapter 10, Section VI.B (p.1965),
infra.
3. Stay Order and Contempt—Failure to stay removal when court has ordered stay may result in contempt
against the government. Dimitrov v. Ashcroft, 368 F.3d 960 (7th Cir. 2004) [issuing order to show cause but
declining to issue contempt in light of government procedural changes and fact that person was not
physically removed]. Wrongful deportation in violation of a stay order also is a basis for a damages claim
under the Federal Torts Claims Act. But if the government has no actual or constructive notice of the court’s
order a person would not be considered to be deported in violation of the order. U.S. v. Garcia-Echaverria,
374 F.3d 440, 449–50 (6th Cir. 2004)[government unaware of stay issued by district court in NY before it
deported respondent whose habeas case had been transferred to Louisiana].
4. Stay Requests and Pending U Visa Applications—For a discussion of the criteria for a stay for U visa
applicants see Chapter 5, ¶ XI.C.13 (p.1274), infra.
X. Bilateral or Multilateral Agreements Regarding the Removal Process—Mexican consulates in the U.S.
within the framework of the Memorandum of Understanding, Joint Declaration and working group between the
U.S. and Mexico have entered into 30 local “arrangements” with CBP, ICE and DHS regarding the procedures to
be used and the protections accorded Mexican citizens who are detained for repatriation. The arrangements
calls for preserving the unity of families during removal, protecting people with special needs, and providing for
special arrangements for unaccompanied minors. See e.g., Local Arrangement for the Repatriation of Mexican
Nationals (Consul General of Mexico in Houston and DHS and the ICE and CBP Field Offices in Houston), AILA
Doc. No. 09092968. Since 2004, the United States and Mexico have also entered into the Interior Repatriation
Program (MIRP) a bilateral, voluntary program to ensure the safe return of Mexican nationals found to be
unlawfully in the Sonora Arizona desert region to their places of residence in the Mexican interior. DHS, News
Release, July 11, 2011, AILA Doc. No. 11071262. See also News Release, ICE, United States and Mexico Begin
Interior Repatriation Initiative (Oct. 2012), AILA Doc. No. 12100265.
Y. Early Removal of Nonviolent Offenders [INA §241(a)(4)(B), 8 USC §1231(a)(4)(B)]
1. Generally—The AG may remove a person prior to completion of his criminal sentence if he is a nonviolent
offender. If he is in federal custody he may obtain early removal if the AG determines it is in the best interest
of the U.S. and he is not confined for alien smuggling and certain aggravated felonies as defined in 8 USC
§1101(a)(43)(B), (C), (E), (I), and (L) [drug trafficking, arms trafficking, certain firearms offenses, child
pornography, violating national defense]. If he is in state custody he may obtain early removal if he submits a
written request to the DHS, the Secretary determines it is in the best interest of the state to remove him and
he has not been convicted of arms trafficking [8 USC §1101(a)(43)(C)] Page 713 or certain firearms offenses
[8 USC §1101(a)(43)(E)]. The latter is now called the Rapid REPAT program. ICE, News Release, First
removals executed under New Hampshire Rapid REPAT program (Feb. 3, 2010), AILA Doc. No. 10021266.
The Rapid REPAT program is underway in six states and Puerto Rico. ICE Fact Sheet: ICE Rapid REPAT
Program (Nov. 7, 2011) located at: http://www.ice.gov/news/library/factsheets/rapidrepat.htm; DHS, Office of
Inspector General Report, The Performance of 287(g) Agreements (Mar. 2010) at p. 82, AILA Doc. No.
10040210.
2. No Private Right of Action under Statute—INA §241(a)(4)(D), 8 USC §1231(a)(4)(D); U.S. v. Marin-
Quintero, 570 F.Supp.2d 509 (S.D.N.Y. 2008) [no private right to compel deportation]; Duamutef v. INS, 386
F.3d 172, 182 (2d Cir. 2004) [district court lacked habeas jurisdiction to compel ICE to take custody over state
prisoner and to execute removal because prisoner had no standing]; U.S. v. Aispuro, 127 F.3d 1133 (9th Cir.
1997) [no private right under similar statute enacted under AEDPA]; Thye v. U.S., 109 F.3d 127 (2d Cir. 1997)
[same]; Lemeshko v. Wrona, 325 F.Supp.2d 778, 784–85 (E.D. Mich. 2004) [no due process right to be
deported prior to completion of sentence]; Cepeda v. INS, 273 F.Supp.2d 222 (E.D.N.Y. 2003) [no private
right of action or due process right to be released from prison before completion of sentence]; U.S. v. Abreu,
940 F.Supp. 443, 446–48 (D.R.I. 1996) [mandamus does not lie because AG’s discretion is broad]; U.S. v.
Lopez, 940 F.Supp. 920 (E.D. Va. 1996) [same]; Chacon-Castellanos v. Reno, 943 F.Supp. 26 (D.D.C. 1996)
[decision to deport is within AG’s sole discretion; no private right; no writ of mandamus]; Sjogreen v. Reno,
943 F.Supp. 29 (D.D.C. 1996) [same].
3. No Right to Compel AG to Deport Someone—Koos v. Holm, 204 F.Supp.2d 1099, 1108–09 (W.D. Tenn.
2002) (and cases cited therein); INA §242(g).
Z. Sanctions Against Countries for Refusing Deportees—A process is currently in place to designate and
punish countries that decline to accept their own citizens that have been ordered deported. INA §243(d); 9 FAM
601.12. See also EO 13768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), Sect.
12, 82 FR 8799-8803 (Jan. 30, 2017) [directing DHS Sec. and Sec. of State to implement sanctions]. The
administration named Cambodia, Eritrea, Guinea and Sierra Leone as “recalcitrant” for not accepting or delaying
repatriation of their own citizens. 9 FAM 601.12-2(C). It is ultimately up to the DOS after receiving a list from
DHS as to what type of sanction or sanctions will be imposed upon the country. Shortell, CNN, U.S. to Sanction
4 Countries for Refusing Deportation (Aug. 24, 2017); Nixon, NY Times, Trump Administration Punishes
Countries That Refuse to Take Back Deported Citizens (Sept. 13, 2017).
1. Cambodia Sanctions—Cable, DOS, 17-State-93408 (Sept. 12, 2017), reported in 22 Bender’s Immigr. Bull.
1190, 1218 (Oct. 15, 2017). Discontinue the issuance of B visas for employees of the Cambodian Ministry of
Foreign Affairs with the rank of Director General and above and their immediate families if applying in
Cambodia. The suspension does not apply to Cambodians applying outside of Cambodia, although a person
who is not residing in the country where they seek the visa and is subject to the 243(d) bar will have the case
transferred to Cambodia. Visas already issued will not be revoked. Notwithstanding the bar, a visa may be
issued after obtaining an advisory opinion for humanitarian or other emergency purposes or if otherwise in
the interests of the U.S.
2. Eritrea Sanctions—Cable, DOS, 17-State-93406 (Sept. 12, 2017), reported in 22 Bender’s Immigr. Bull.
1190, 1220 (Oct. 15, 2017). Discontinue the issuance of B visas to citizens, subjects, national and residents
of Eritrea. The suspension does not apply to Eritreans applying outside of Eritrea, although a person who is
not residing in the country where they seek the visa and is subject to the 243(d) bar will have the case
transferred to Eritrea. Visas already issued will not be revoked. Notwithstanding the bar, a visa may be issued
after obtaining an advisory opinion for humanitarian or other emergency purposes or if otherwise in the
interests of the U.S.
3. Guinea—Cable, DOS, 17-State-93402 (Sept. 12, 2017), reported in 22 Bender’s Immigr. Bull. 1190, 1222
(Oct. 15, 2017). Discontinue the issuance of B visas, F1, F2, J1, J2, M1 and M2 to Guinean government
officials and their immediate families. The suspension does not apply to Guineans applying outside of
Guinea, although a person who is not residing in the country where they seek the visa and is subject to the
243(d) bar will have the case transferred to Guinea. Visas already issued will not be revoked.
Notwithstanding the bar, a visa may be issued after obtaining an advisory opinion for humanitarian or other
emergency purposes or if otherwise in the interests of the U.S. Page 714
4. Sierra Leone—Cable, DOS, 17-State-93404 (Sept. 12, 2017), reported in 22 Bender’s Immigr. Bull. 1190,
1224 (Oct. 15, 2017). Discontinue the issuance of B visas to Ministry of Foreign Affairs and immigration
officials of Sierra Leone who apply in Freetown. The suspension does not apply to Sierra Leoneans applying
outside of Freetown, although a person who is not residing in the country where they seek the visa and is
subject to the 243(d) bar will have the case transferred to Freetown. Visas already issued will not be revoked.
Notwithstanding the bar, a visa may be issued after obtaining an advisory opinion for humanitarian or other
emergency purposes or if otherwise in the interests of the U.S.
Copyright © 2020 American Immigration Lawyers Association.

No copyright claimed on U.S. government material.
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Chapter 3 Detailed Table of Contents (PDF)

I. LAWFUL ADMISSION AS THE DEFINING CONCEPT

E. Parole for Entrepreneurs— 8 CFR §212.19; 82 FR 5238-89 (Jan. 17, 2017)

(1) Staffing companies may be start-ups. 82 FR at 5248.

7. Conditions of Parole— 8 CFR §212.19(i)

7.b. USCIS May impose other reasonable conditions

F. Applicants for Admission

II. ADMISSION AND LAWFUL PERMANENT RESIDENTS (LPRs)

D. No Retroactive Application of INA §101(a)(13)(C)—INA §101(a)(13)(C) may not be applied retroactively to

E. Application of Fleuti to Non-LPRs—Following IIRIRA, a question remained as to whether Fleuti could be

III. GROUNDS OF INADMISSIBILITY, INA §212(a) [8 USC §1182(a)] —

2. Communicable Disease of Public Health Significance

4. Physical or Mental Disorder

4.f. Substance-Related Disorders— 42 CFR §§34.2(h)–(i); 9 FAM 302.2-7(B)(3). Substance-related

6. Guardian Accompanying Helpless Alien—Person or guardian who accompanies an inadmissible alien

9. IMMACT90—IMMACT90 substantially altered the health-related grounds by eliminating as a ground of

1. Persons Likely to Become a Public Charge

1.b. Affidavit of Support (I-864)

(b) Household Wage-Earner on I-864A—The income of a household wage-earner (including the

(5) Domicile Requirement

(10) Documentary Requirements

(11) Affidavit as Enforceable Contract

i) Premarital Agreements—The comments to the regulations take no view on whether divorce

3. Certain Medical Graduates of Nonapproved Schools—Medical graduates of nonapproved schools are

4. Uncertified Foreign Health Care Workers

(5) Speech-Language Pathologists and Audiologists, Medical Technologists (Clinical Laboratory

6. Grounds of Exclusion Eliminated—IMMACT90 eliminated excludability for persons certified by a medical

1. Crimes Involving Moral Turpitude (CIMT)

INA §212(a)(2)(A)(i)(I), 8 USC §1182(a)(2)(A)(i)(I)

1.b. Determining a Crime Involving Moral Turpitude

(f) Realistic Probability vs Minimum Reading Approach—Following Gonzalez v. Duenas-Alvarez, 549

(1) Crimes Against the Person

(a) Involving Moral Turpitude

Mayhem—Matter of Santoro, 11 I&N Dec. 607 (BIA 1966).

(b) Not Involving Moral Turpitude

Assault or Aggravated Assault on a Law Enforcement Officer—Garcia-Meza v. Mukasey, 516

Child Endangerment/Abandonment—Hernandez-Cruz v. U.S. Att’y Gen., 764 F.3d 281, 285-87

(2) Sexual Offenses

(a) Involving Moral Turpitude

(b) Not Involving Moral Turpitude

(3) Crimes Against Property

(a) Involving Moral Turpitude

(b) Not Involving Moral Turpitude

(4) Crimes Against Government

(a) Involving Moral Turpitude

(b) Not Involving Moral Turpitude

INA §212(a)(2)(A)(i)(II), 8 USC §1182(a)(2)(A)(i)(II)

3. Money Laundering [INA §212(a)(2)(I), 8 USC §1182(a)(2)(I)]—Includes:

5. Prostitution—Prostitutes or persons who have engaged in or sought to engage in prostitution or to procure

D. Inadmissibility on Moral Grounds

E. Violation of INA Laws Regarding Entry or Documentation

1. Certain Aliens Previously Removed

2. Persons Unlawfully Present in the U.S.

2.e. Unlawful Presence Defined

A student who engages in unauthorized employment is in unlawful status because he violated

(d) Duration of Status (D/S)—Although previously an F or J or M in D/S was not considered to be in

(f) In Proceedings—Removal proceedings have no impact on whether an individual is accruing

(k) Asylees and Refugees—Person admitted as a refugee is in status authorized by the AG

(n) HRIFA/NACARA and Cuban-Haitian Entrants—Properly filed affirmative Cuban-Haitian Entrant

(u) Suspension and Cancellation—A person granted suspension of deportation or cancellation of

2.f. Exceptions [INA §212(a)(9)(B)(iii), 8 USC §1182(a)(9)(B)(iii); AFM at 40.9.2(b)(2)]—The following