Saturday, July 9, 2016

Frias-Camilo v. Attorney General United States (Precedential): A Sentence of "Guilty Without Further Penalty" Qualifies as a "Formal Judgment of Guilt" for the Purposes of Removal

Frias-Camilo v. Attorney General United States
Third Circuit Court of Appeals
2016 U.S. App. LEXIS 11426
Filed: June 23, 2016


Petitioner, Omar Alejandro Frias-Camilo, entered a guilty plea for conspiracy to possess cocaine in the Lehigh County Court of Common Pleas, but received no actual punishment, because his original 12-month probation was amended to a sentence of “guilty without further penalty.” To challenge the DHS charge of removability based on the conviction, Petitioner argued that the conviction by the state court should not qualify as a conviction for immigration purposes, due to the absence of any restraint on his liberty.


The 3rd Circuit Court rejected Petitioner’s argument, and held that his conviction for a controlled substance offense without further penalty constitutes “formal judgment of guilt,” and thus renders him removable.


The Court reasoned that under the Immigration and Nationality Act (“INA”), a noncitizen’s conviction can be established under two circumstances:

1) The court entered a formal judgment of guilt against him, or
2) Adjudication of guilt has been withheld, and
a) A finding of guilt has been made, or the individual admitted facts supporting a finding of guilt, and
b) “The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” INA 101(a)(48(A).

The Court found that a penalty or some restraint on the noncitizen’s liberty is only required under the second type of “conviction,” where adjudication is withheld, but not under the first type, a formal finding of guilt.

Under the Federal Rules of Criminal Procedure, a judgment of conviction is comprised of 1) plea, 2) finding, 3) adjudication, and 4) sentence. With no disputes on the other three elements, Petitioner contended that no “formal judgment of guilt” exists because no “sentence” was imposed on him. The Court provided two reasons for rejecting this argument. First, Congress explicitly excluded the requirement of punishment under the 1st circumstance at INA 101(a)(48(A), conviction through a formal judgment of guilt, and the statute’s wording “leaves little to the imagination.” Second, Pennsylvania’s “guilty without further penalty” can itself be construed as a sentence because “[t]he shame and trauma of a public conviction may be punishment enough,” not to mention other collateral consequences such as the possibility of removal.


A noncitizen’s conviction for a removable offense, even without accompanying penalties, may still subject him/her to removal.

Ordonez-Tevalan v. Attorney General United States (Precedential): The Third Circuit Retains Jurisdiction over Petitions for Review with an Underlying Motion to Reopen

Ordonez-Tevalan v. Attorney General United States 
No. 15-2187
Filed: June 23, 2016

Procedural Posture: 

Ordonez is a native and citizen of Guatemala who entered without inspection. On September 25, 2014, Ordonez and her son, Gonzalez, filed applications for asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge (IJ) denied the applications and the Board dismissed both appeals. Petitioners filed a timely petition for review with the Third Circuit. However, within a month after the petition was filed, the Attorney General and Petitioners filed a joint motion to reopen the Board proceedings because neither party received the Board’s decision or order that dismissed Gonzalez’ appeal. The Board granted the joint motion to reopen the Board proceedings and re-issued both decisions. Then, the Attorney General moved to dismiss Ordonez and Gonzalez’ petition for review for lack of jurisdiction due the motion to reopen that was filed.


The Third Circuit held that it retained jurisdiction over the petition for review inasmuch as the BIA’s re-issuance of the decisions did not change the initial decisions from which Ordonez and Gonzalez had already sought review. The Court relied on previous Third Circuit decisions in Stone v. INS, 514 U.S. 386 (1995) and Thomas v. Attorney General, 625 F.3d 134 (3d Cir. 2010), in which the Circuit Court determined that petitions for reconsideration or reopening did not “dislodge” earlier proceedings reviewing the underlying order, because it is the substance of the subsequent decision, upon reconsideration, which determines whether a petition for review is moot. The Court emphasized that this framework applied equally to motions to reopen, “particularly where, as here, the parties sought the reopening simply so that the Board could reissue earlier decisions and orders.” Therefore, the Third Circuit denied the Attorney General’s motion to dismiss.

Analysis on Merits of Case: 

After determination that jurisdiction was not divested, the Third Circuit addressed the merits of Ordonez’ applications. The Third Circuit found substantial evidence supporting the IJ’s adverse credibility finding and agreed that she was ineligible for asylum because she returned illegally after her previous removal. The Court noted that an additional reason why Ordonez’ petition should be denied is that she was not a member of a particular social group under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (finding that married women in Guatemala who are unable to leave a relationship can constitute a cognizable social group), as she was not married to her abuser.


The Third Circuit’s brief analysis on the issue of membership in a particular social group may raise questions regarding the Third Circuit’s view of the outer bounds of claims brought under A-R-C-G-. See upcoming “viewpoints” blog entry on this issue by the same author.

Si Min Cen v. Attorney General United States (Precedential): 8 C.F.R. 245.1(i) Invalidated using Chevron Doctrine

Si Min Cen v. Attorney General United States of America
Third Circuit Court of Appeals
Filed: June 6, 2016

2016 U.S. App. LEXIS 10230


Petitioner Si Min Cen is a nineteen-year-old Chinese national whose mother married a U.S. citizen in China. After properly obtaining her K-4 visa and moving to the United States with her mother, Cen had her stepfather file an I-130 on her behalf as required by 8 C.F.R. § 245.1(i), in order to adjust her status. However, Cen’s application was denied because she does not fit into the category of her stepfather’s “child” under § 1101(b)(1)(B), because Cen was over the age of eighteen at the time of her mother and stepfather’s marriage. Meanwhile, the regulation also precluded Cen from adjusting status through her Lawful Permanent Resident (LPR) mother, because it requires that the person filing the I-130 be the same person who originally filed the I-129F for the non-citizen spouse.


The Third Circuit held that the regulation promulgated by the DHS, i.e., 8 C.F.R. § 245.1(i), is invalid, because it departs from the plain language of the INA, contravenes congressional intent, and exceeds the permissible scope of the Attorney General’s regulatory authority.


Applying step 1 of Chevron, the Court determined that 8 C.F.R. § 245.1(i) did not directly apply the statute’s unambiguous intent. In a plain-language analysis, the Court was not convinced by the Government’s arguments that the regulation limits the I-130 Petitioner to the U.S. Citizen stepparent, and is supported by other INA provisions requiring a K-4 child to demonstrate a parent-child relationship with her U.S. Citizen stepparent. In its reasoning, the Court cited to INA § 245(d), which provides that the Attorney General may adjust the status of a noncitizen “as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien’s nonimmigrant status under § 101(a)(15)(K).” The Court found that the plain language not only shows no requirement for a parent-child relationship between the child and her U.S. stepparent, but also confirms the marriage between K3 parent and the U.S. citizen as the only requisite for K4 child’s adjustment of status. Based on the provision, the Court then determined that the regulation’s language about stepparent relationships is “neither mandatory nor exclusive,” and that the INA as a whole does not support the regulation’s requirement that an I-130 be filed by the U.S. Citizen stepparent and not by the LPR or U.S. Citizen parent.

Under Chevron step 2, the Court analyzed whether the regulation reasonably applies the statute, and concluded that it “must be struck down as ‘manifestly contrary’ to the INA.” The conclusion rested on 1) the plain language of INA § 245(d); 2) statutory construction of the INA as a whole; 3) the statutory and regulatory context pertaining to family unity, adjust of status, and fiancĂ© visas; 4) Congressional intent; and 5) prior 3rd Circuit precedent.

For example, regarding the broader regulatory context, the Court examined the Legal Immigration Family Equity (LIFE) Act of 2000, finding that it preserved previous regulatory “gap-fillers” that allowed for K-2 and K-4 children to adjust status through their stepparent or through their parent. So both the statute (The LIFE Act) and the prior agency regulations supported the view that 8 C.F.R. § 245.1(i) enables a K-2 or K-4 child to adjust status as a result of the marriage, whether through the child’s parent, or through the stepparent who originally filed a I-129F.

The Government also argued that the regulation is designed to combat marriage fraud, especially when a marriage takes place on foreign soil and fewer fraud-prevention measures are in effect there. The Court rejected this argument, and reasoned that the already existing scrutiny of the K-3 parent’s initial visa petition serves this purpose, and there is no need for a regulation to target the older children as a supplemental measure. Given the Congressional intent to preserve family unity in both K-2 and K-4 children’s situations, it does not make sense for the regulation to treat the two groups in a different way.

Considering its precedents with regard to the Attorney General’s regulatory authority, the Court found that since Congress set out the eligibility structure, the Attorney General overstepped reasonability bounds. Because the regulation makes it legally impossible for a K-4 child between eighteen and twenty-one to apply for adjustment of status within the United States, such a potentially absurd result cannot survive Chevron step 2.


Petition granted. Decision reversed. Case remanded.


This case sets the precedent in the 3rd Circuit that all K-4 children under age 21 are eligible to adjust status through the K-3 parent as long as the parent has a legal marriage with a U.S. citizen.

Please note that K-1 visas are for noncitizen fiancé(e)s of U.S. citizens and K-2 visas are for their minor children up to age twenty-one, while K-3 visas are for noncitizen spouse of U.S. citizens and K-4 visas are for their minor children up to age twenty-one.

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.