Wednesday, March 16, 2016

Orozco-Velasquez v. Attorney General (Precedential): For purposes of Cancellation of Removal, the stop time rule is not triggered, until all stipulations for the NTA under 8 U.S.C. § 1229(a) are met

Orozco-Velasquez v. Attorney General
Third Circuit Court of Appeals
Filed: March 11, 2016
2016 U.S. App. LEXIS 4569

Respondent Milton Orozco-Velasquez arrived in the United States without having been admitted or paroled in September 1998 or February 1999. On May 9, 2008, Orozco-Velasquez received a Notice to Appear (NTA) that did not specify a date to appear before the Immigration Judge and stated that respondent should appear in Elizabeth, New Jersey. On April 7, 2010 Orozco-Velasquez received another NTA, which stated that respondent should appear in Newark, New Jersey. On April 12, 2010, Orozco-Velasquez received a Notice of Hearing specifying the time.

Orozco-Velasquez applied for Cancellation of Removal arguing that his 2010 NTA superseded the 2008 NTA so as to fulfill the 10-year physical presence requirement of Non-LPR Cancellation of Removal, and requested that the removal proceedings be closed. Pursuant to Board precedent, Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011), the Board held that an NTA that does not contain a date and time was “not defective” and “thus provided adequate notice” to trigger the “stop-time” rule. Orozco-Velasquez appealed, challenging Camarillo.


The Third Circuit held that the Board’s holding in Camarillo was not worthy of Chevron deference because the statute, 8 U.S.C. § 1229(a), which specifies the required information on an NTA is not ambiguous. Rather, the statute was clear about the information necessary to be included in the NTA in order to trigger the “stop-time” rule. Such a conclusion was critical for Orozco-Velasquez because to be eligible for Non-LPR Cancellation of Removal, Orozco-Velasquez needed to obtain 10-years of continuous physical presence. Under the “stop-time” rule, at § 240A(d)(1) of the Immigration and Nationality Act (INA), “any period of continuous residence or continuous physical presence in the United States shall be deemed to end…when the alien is served a notice to appear…” Thus, whether the incomplete 2008 NTA satisfied the statutory requirements so as to trigger the “stop-time” rule was critical in determining whether Orozco-Velasquez met the 10-years continuous physical presence requirement for Non-LPR Cancellation of Removal.

The Third Circuit found that the NTA, under 8 U.S.C. § 1229(a)(1), necessarily requires specification of the “time and place at which the proceedings shall be held.” The Court found that the word “shall” in the statute is a requirement, and in the absence of another conflicting canon of statutory construction such a requirement is mandatory. Because the statute requires that an “alien [be] served a notice to appear under 8 U.S.C. § 1229(a)” the statute also “compels” the government to follow all the statutory stipulations set forth for an NTA, which includes stating the time and place of the hearing. Until the government has set forth all such stipulations, the NTA “will not stop the…clock” for purposes of Cancellation of Removal eligibility. Here, the government served a proper NTA too late, and so the government did not affect Orozco-Velasquez’s eligibility for Cancellation of Removal.

The Third Circuit emphasized that the NTA is not “enigmatic,” finding that the NTA’s purpose is to provide notice to the noncitizen. The Third Circuit noted that here, just a few months before the “stop-time” rule would apply, Orozco-Velasquez was given an NTA which was devoid “fundamental, statutorily required information and misinforming him of the proceedings’ location.” By the Board’s logic, the Third Circuit concluded that the agency might treat an NTA containing no information as a trigger for the stop-time rule, a result which the Third Circuit finds to be “counter-textual.”


Please note that the “stop-time” rule applies to both the 7-years continuous residence requirement under LPR Cancellation of Removal (INA § 240A(a)(2)) and the 10-years continuous physical presence requirement under Non-LPR Cancellation of Removal (INA § 240A(b)(1)(A)); thus, the Third Circuit’s holding could apply under both statutory contexts. In support of this conclusion, is the fact that the Third Circuit used the words “residence” and “continuous physical presence” interchangeably throughout the opinion.

Monday, October 19, 2015

Johnson v. Attorney General of the U.S. (Not Precedential): Violation of 35 Pa. Stat. Ann. § 780-113(a)(30) requires analysis under the modified categorical approach to determine whether it constitutes an aggravated felony.

Johnson v. Attorney General of the United States
Third Circuit Court of Appeals
Not Precedential
605 Fed.Appx. 138
Filed: June 16, 2015


Minikan Wreth Johnson (Johnson) was admitted into the United States as a refugee in 2003. In 2008, Johnson pled guilty to two counts of possession with intent to deliver marijuana in violation of 35 Pa. Stat. Ann. § 780-113(a)(30). In 2010, Johnson was charged as being removable for an aggravated felony conviction and a controlled substance conviction. The Immigration Judge (IJ) sustained the controlled substance charge of removability but not the aggravated felony charge, and granted Johnson’s application for asylum. The Board of Immigration Appeals (BIA) reversed and ordered Johnson removed, finding that he had been convicted of a crime consituting an aggravated felony.


The Third Circuit found that 35 Pa. Stat. Ann. § 780-113(a)(30) was divisible and applied the modified categorical approach. The Court determined that no document it was permitted to examine under Shepard v. U.S., 544 U.S. 13 (2005) showed that Johnson was convicted of any offense that would be an aggravated felony under federal law. The Third Circuit then determined that because it was possible to violate 35 Pa. Stat. Ann. § 780-113(a)(30) by distributing a small amount of marijuana for no remuneration or transferring marijuana to another person without payment, it was possible to violate the statute without violating the federal statute. Because it was unclear if Johnson’s offense qualified as an aggravated felony, the Court applied the minimum conduct and determined his conviction did not constitute an aggravated felony.

The Court found it inappropriate to remand this issue to the BIA, because “Moncrieffe did not change our existing precedent—it confirmed it” and noted that because the BIA committed legal error, the Court could decide the aggravated felony issue without remand. Johnson at 143. The Court then determined that the government had waived its argument as to asylum eligibility requirements and its argument that Johnson’s conviction was for a particularly serious crime and remanded the case to the BIA with instructions to reinstate the IJ’s decision granting Johnson asylum.


This case was originally decided in December 2014. See Johnson v. Attorney General of the U.S., 595 Fed.Appx. 117 (3d. Cir. 2014), which is discussed in the PWID Chart on the Resources Page, but was amended and superseded in 2015 by this decision, although the extent to which the original decision has changed is unclear.

Tuesday, August 11, 2015

Third Circuit Issues Standing Order Regarding Immigration Cases

Standing Order Regarding Immigration Cases

On August 5, 2015, in response to the removal of a Guatemalan mother and daughter who were appealing their order of removal, the Third Circuit issued a standing order regarding immigration cases. The order provides that where an immigration petitioner has applied for a stay of removal, the Court will grant a temporary stay of removal pending the disposition of the motion, as long as the case satisfies four criteria:

(1) The petition for review is timely filed;
(2) Venue is proper in the Third Circuit;
(3) The order appealed is arguably final; and
(4) The Court has authority to review the challenged order.

If these four criteria are satisfied, the Court will administratively stay the removal until a motions panel can consider the motion.

Saturday, June 27, 2015

Third Circuit Judge Orders ICE to Return Deported Guatemalan Mother and Daughter

Third Circuit Judge Orders ICE to Return Deported Guatemalan Mother and Daughter
June 19, 2015
No. 15-2425


As McClatchy reported, the Petitioner—whose name has been removed to protect her identity—was the victim of domestic violence in Guatemala, and is seeking asylum in the United States. When she arrived in the United States, she and her daughter were detained and placed in the Berks County Residential Center where they remained until June 19, 2015, when they were abruptly removed and put on a plane back to Guatemala. Petitioner was in the process of applying for a stay of removal while she appealed a denial of her asylum application.


On June 19, 2015, Judge Theodore McKee ordered the government to “intercept Petitioners when they land tonight in Guatemala City and to return Petitioners to the United States immediately,” noting that the “Court would have granted Petitioners a stay of removal, but was informed that Petitioners were removed earlier today.” Judge McKee goes on to say that “upon their return, Petitioners are granted a stay of removal pending disposition of their petition for review.”

This order came about because Petitioner had requested a stay of removal, and, in arguing against the request, on June 9, 2015, the U.S. attorney’s office announced that immigration officials had no plans to remove Petitioner. Despite this, on June 19, 2015, Petitioner and her daughter were removed to Guatemala.

The Petitioner in this case is among the many individuals who have been subject to family detention policies. DHS has relied primarily on 8 U.S.C. § 1226, 8 C.F.R. § 235.3, and 8 C.F.R. § 236.3 as the legal basis for family detention. More recently however, courts have called into question the legality of such practices, particularly with respect to the mass detention of families fleeing violence in Guatemala, El Salvador, and Honduras. See R.I.L.-R v. Johnson, 2015 WL 737117 (D.D.C. 2015) (granting a primary injunction to petitioners until a final decision on the merit of family detention is reached).

These policies allow the government to detain families without releasing them on bond. Over the last year, criticism of family detention policies has grown, and opponents argue that they inhibit access to fair hearings, are detrimental to physical and mental health, especially for those seeking asylum and for children, and are unnecessary to ensure noncitizens appear at their hearings.

On June 15, 2015, ninety-seven nongovernmental organizations (NGOs) signed a letter to President Obama urging him to end the practice of family detention because of the psychological trauma it imposes on already traumatized individuals. This prompted a response from Secretary Jeh Johnson on June 24, 2015, outlining changes DHS will make to the family detention policies to avoid long-term detention of families.


On Friday, July 1o, McClatchy reported that the Petitioner and her daughter had been returned to the United States and had been released from the family detention center with an electronic monitoring device. 

Monday, June 8, 2015

Mellouli v. Lynch (Precedential): Removability because of a drug paraphernalia conviction requires a connection between an element of the conviction and a controlled substance defined in 21 U.S.C. 802.

Mellouli v. Lynch
Supreme Court of the United States
575 U.S. ____ (2015)
Filed: June 1, 2015


Moones Mellouli was arrested for driving under the influence in 2010, and pled guilty to possessing drug paraphernalia to “store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body,” in violation of Kan. Stat. Ann. § 21-5709(b)(2). The drug paraphernalia was a sock, which contained four Adderall tablets. Neither the criminal charge nor the plea agreement identified the controlled substance involved.

In 2012, Immigrations and Customs Enforcement (ICE) charged Mellouli as removable under 8 U.S.C. § 1227(a)(2)(B)(i) under his Kansas misdemeanor conviction, as having been convicted of a violation relating to a controlled substance as defined in 21 U.S.C. § 802. An Immigration Judge ordered him removed, the Board of Immigration Appeals (BIA) upheld the order, and Mellouli was deported in 2012. The Eighth Circuit denied Mellouli’s petition for review in 2013, and the Supreme Court granted certiorari in 2014.


The Supreme Court determined that for a state drug-paraphernalia conviction to categorically constitute an offense defined in 8 U.S.C. § 1227(a)(2)(B)(i), the state conviction must connect an element of the conviction to a controlled substance defined in 21 U.S.C. § 802. The Court also reaffirmed the importance of the categorical approach, noting its suitability for the realities of the immigration system because it enables non-citizens to anticipate any immigration consequences of a guilty plea in criminal court and to enter ‘safe harbor’ pleas.

The Court found that at the time of Mellouli’s conviction, Kansas’ schedules of controlled substances contained more substances than were defined in 21 U.S.C. § 802. The Court determined that because the controlled substance was not identified in the plea agreement, the drug paraphernalia conviction could have involved a substance not controlled at the federal level. Finally, the Court determined that although the BIA had interpreted drug paraphernalia statutes to categorically constitutes offenses defined in 8 U.S.C. § 1227(a)(2)(B)(i), this interpretation made “scant sense” because it set a lower bar for drug paraphernalia than it did for drug possession and distribution offenses.

Third Circuit Precedent:

Rojas v. Attorney General, which can be found here, was the applicable Third Circuit precedent arising out of 2013. The Third Circuit determined that for a violation of Pennsylvania drug paraphernalia laws to categorically constitute a violation of 8 U.S.C. § 1227(a)(2)(B)(i), the government must show that the conviction involved or was related to a federally controlled substance defined in 21 U.S.C. § 802. While the Supreme Court did not cite to Rojas in its consideration of Mellouli, the reasoning it adopted was similar.

Craig Shagin and Jennifer Koh have written insightful analyses of the importance of Mellouli v. Holder. These pieces can be found in the viewpoints tab here

Tuesday, June 2, 2015

Sesay v. Attorney General United States (Precedential): The INA precludes asylum or withholding of removal for applicant who provides material support to a terrorist group under duress

Sesay v. Attorney General United States
Third Circuit Court of Appeals
2015 WL 3372539
Filed: May 26, 2015


In early 2001, Musa Sesay was blindfolded and abducted from his house by rebels in the Revolutionary United Front (RUF) after he refused to join RUF, a Sierra Leon rebel group. Thereafter, he was beaten and imprisoned because he continuously refused to join RUF. A month after his imprisonment, the rebels forced Sesay to unload weapons and ammunition from their trucks while he was under the supervision of an armed guard.

In May 2001, Sesay entered the United States and applied for asylum. In December 2009, he was served with a Notice to Appear, and proceedings before an Immigration Judge (IJ) followed. Further, the IJ found that Sesay did not qualify for asylum or withholding of removal because in helping RUF to unload weapons and ammunition, he provided material support to a terrorist group. The IJ found it irrelevant that Sesay’s actions were involuntary. The BIA affirmed.


The Third Circuit determined that Sesay was ineligible for asylum or withholding of removal because he provided material support to a terrorist group, despite having done so under duress.

The court reasoned that carrying weapons and ammunition for a terrorist group constituted material support because under Singh-Kaur v. Ashcroft, providing food and setting up tents at religious meetings constituted material support. In regards to the duress exception to the material support bar raised by Sesay, the court reasoned that the plain language of the statute, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) did not provide a duress exception to the material support bar. Further, the court determined that because a neighboring subsection provided an exception for involuntary membership or affiliation, Congress’ omission here was intentional. Finally, the court determined that the 2007 Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief evidenced Congressional intent that the material support bar applied to support given under duress.

The court noted the harsh consequences of its holding, but reasoned that it was compelled to reach its conclusion because policy decisions rested with Congress and the Executive Branch. It further noted, in footnote 7, that Sesay’s delay in applying for a waiver was because there remained no published process in requesting a waiver, which gave them “considerable pause.”

This blog post was drafted by Joyce Fondong, (3L). 

Friday, April 24, 2015

Chavez-Alvarez v. Attorney General United States of America (Precedential): A military sentence which is not apportioned cannot be used when calculating the length of a term of imprisonment

Chavez-Alvarez v.Attorney General United States
Third Circuit Court of Appeals
2015 WL 1727476
Filed: April 16, 2015


The facts of this case are the same as those set forth in Chavez-Alvarez v. Warden York County Prison, 2015 WL 1567019 (3d.Cir. 2015). Chavez-Alvarez is a citizen of Mexico who entered the United States at the age of two and later adjusted to a lawful permanent resident status.

In 2000, while serving in the United States Army in South Korea, Chavez-Alvarez plead guilty to making false official statements, sodomy, and violating the general article, and a military judge sentenced him to be confined for a period of 18 months. The military judge did not divide the 18 month confinement between the offenses.

In 2010, the Department of Homeland Security charged Chavez-Alvarez with being removable as having been convicted of an aggravated felony for committing a crime of violence and as having been convicted of two or more crimes involving moral turpitude not arising from a single scheme of criminal misconduct. The Immigration Judge found Chavez-Alvarez removable on both grounds and concluded that he was not eligible to apply for a 212(h) waiver. The Board of Immigration Appeals (BIA) affirmed, finding that Chavez-Alvarez’s sodomy conviction constituted an aggravated felony.

Chavez-Alvarez appealed to the Third Circuit, alleging that he was not convicted of an aggravated felony.


The Third Circuit concluded that Chavez-Alvarez had not been convicted of a crime constituting an aggravated felony because the government had failed to meet their burden of proving that his sodomy conviction was a crime for which the term of imprisonment was at least one year.

The court found that the sentencing procedure used by the military judge did not provide a specific designation for how the sentence imposed was apportioned among the convictions. The court was particularly critical of the Government’s argument that Alvarez’s 18-month sentence, the nature of the crimes committed and the maximum allowable sentence for each offense was sufficient to attribute at least one year of the sentence to his forcible sodomy offense and remarked “The Government’s []argument requires mathematic gymnastics and rank speculation.” The court determined that because the record did not designate how the 18 month sentence was apportioned among Chavez-Alvarez’s four convictions, the uncertainty caused was to the benefit of Chavez-Alvarez and that the BIA committed error when they concluded he had been convicted of an aggravated felony for which the term of imprisonment was at least one year.