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.

Wednesday, April 15, 2015

Chavez-Alverez v. Warden York County Prison (Precedential): Determination of Reasonableness of Mandatory Detention Not Dependent on Unreasonable Governmental Delay

Chavez-Alverez v. Warden York County Prison

Third Circuit Court of Appeals
2015 WL 1567019
Filed: April 9, 2015


Jose Juan Chavez-Alverez entered the United States and adjusted his status to that of lawful permanent resident. In 2000, while serving in the United States Army in South Korea, a General Court-Martial convicted him of giving false official statements, sodomy, and violating the general article. He was sentenced to eighteen months of imprisonment, served thirteen months in prison, and was released in February, 2012.

Immigration Customs and Enforcement (ICE) arrested Chavez-Alvarez and charged him with being removable as having been convicted of an aggravated felony. Chavez-Alvarez was ordered detained without bond and sent to York County Prison on June 5, 2012. He filed a petition for habeas corpus with the Middle District of Pennsylvania, which was denied. He then filed an appeal with the Third Circuit Court of Appeals.


The Third Circuit found that Chavez-Alverez had been unreasonably detained and ordered that he be afforded a bond hearing. Applying Demore v. Kim, 538 U.S. 510 (2003), the court determined that mandatory detention was expected to be brief and that the reasonableness of any detention was dependent on a fact-specific balancing framework. The court found that at a certain point, the burden to the individual’s liberty outweighs the presumption that the individual will flee and/or is dangerous; at this tipping point, the government needs more to justify the detention as necessary to achieve the goals of the statue.

The court determined that after the first six months of Chavez-Alverez’s detention, the balance swung away from the government and towards Chavez-Alvarez. Towards the end of the first year of the detention, the government had enough exposure to Chavez-Alvarez to determine whether he posed a flight risk and further, that the government was reasonably aware that the issues surrounding Chavez-Alvarez’s case and appeal were complex and would take a substantial amount of time to resolve. Moreover, the court determined that the reasonableness of detention does not hinge on whether the government unreasonably delayed a resolution of the case but instead found that the justification for detention must be whether the detention is necessary to achieve the goals of the statute—ensuring that the individual is not a flight risk and that there is no danger to the community.

Additional Information: 

Law 360 has written an article providing more information about this case. It is available here

Shalom Pentecostal Church v. Acting Secretary U.S. Dept. of Homeland Sec. (Precedential): I-360 visa application does not require the two years of qualifying religious work to be done in lawful immigration status

Shalom Pentecostal Church v. Acting Secretary U.S. Dept. of Homeland Sec.
2015 WL 1529111
Third Circuit Court of Appeals
Filed: April 7, 2015


Carlos Alencar entered the United States on a B-2 nonimmigrant tourist visa in 1995. He overstayed his visa, and in 1997 began seeking legal immigration status as a special immigrant religious worker when he first qualified for an I-360 visa petition. He began working for the Shalom Pentecostal Church in 1998 as a senior pastor, and in 2009 the church filed an I-360 petition on his behalf. United States Citizenship and Immigration Service (USCIS) denied the petition on grounds that pursuant to newly promulgated 8 C.F.R. § 204.5(m)(4) and (11), the church had failed to establish that Alencar had been performing full-time work “in lawful immigration status” in the two year period preceding the petition.

The church appealed on behalf of Alencar, and the district court invalidated the regulation, finding that the statutory language of the Immigration and Nationality Act (INA) was clear and that the additional language in the regulations was inconsistent with the statutory scheme. The government appealed, alleging that the church did not have standing and that the district court erred in finding the regulation ultra vires.


The Third Circuit found that the church and Alencar had standing. The court also found that the regulation requiring that work performed be done “in lawful immigration status” was inconsistent with the plain text of the statute and therefore invalid.

The court applied the Chevron two-step analysis to the regulation and found that under the first step of Chevron, Congressional intent was clear, and there was no need to look to the second step of Chevron. The court found that based on the text of 8 U.S.C. § 1225(k)(2), Congress intended that a certain number of days (180) was required before special immigrant religious workers would be disqualified from applying for permanent resident status. Further, because elsewhere in the INA Congress specified when lawful immigration status was a prerequisite to a grant of status or relief, the court found that the omission of this in 8 U.S.C. § 1225(k)(2) was deliberate. Because the court found that Congressional intent and the text of the statute was unambiguous, the court upheld the invalidation of the regulation.


On July 5, 2015, USCIS issued guidance on this decision in the form of a policy memorandum, which provides that USCIS will implement the decision nationwide.