Read case summaries of select BIA, Second Circuit Court of Appeals, and Supreme Court cases issued this last month.
Board of Immigration Appeals (BIA)
Matter of Larios-Gutierrez de Pablo and Pablo-Larios [NTA; change in law]
Matter of Larios-Gutierrez de Pablo and Pablo-Larios, 28 I&N Dec. 868 (BIA 2024)
Holding:
The Board’s holding in Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings is not a change in law, and thus Matter of Fernandes applies retroactively.
Second Circuit Court of Appeals
Reid v. Garland [competency; Matter of M-A-M-; safeguards]
Reid v. Garland, No. 20-3324, 120 F.4th 1127 (2d Cir. Nov. 5, 2024)
Facts & Background
- Appeal for an adult who had been in immigration proceedings for nearly thirty years (so long that he was in deportation proceedings) and was denied an application for a waiver of inadmissibility under the former section 212(c) of the Immigration and Nationality Act (“INA”), adjustment of status, and deferral of removal under the Convention Against Torture (“CAT”).
- In 2019, Mr. Reid sought to terminate the removal proceedings under Matter of M-A-M-. At the Matter of M-A-M- hearing, Mr. Reid presented evidence that he suffers from schizophrenia and presents psychotic symptoms, including delusional thinking, visual hallucinations, command auditory hallucinations, and paranoia. A month after the hearing, the Immigration Judge (IJ) orally issued “sort of a formal finding” and stated that she was “concerned about [Reid's] competency as it pertains to the attorney-client relationship” but that she would “find[ ] ways to ... work around that.” She declined to make a formal finding as to overall competency. She further stated that Reid's counsel “can[not] establish an attorney-client relationship that [she] would need in order to fully present the case,” but failed to make explicit findings as to competency and did not explain how the proposed safeguards would ensure Mr. Reid could participate in the case. She denied the motion to terminate.
- The safeguards that IJ allowed the individual hearing a few months later purportedly included "not requir[ing Reid] to testify for his relief applications,” having Reid's counsel “present[ ] witnesses and affidavits on his behalf,” purportedly “allowing [Reid] to be unshackled during the hearing,” and “not wear[ing] her robe because of [Reid's] distrust of the judicial system.” The IJ subsequently denied all applications for relief and reasoned that these safeguards had sufficiently protected his due process rights during the proceedings.
- The BIA affirmed, acknowledging that the IJ failed to make a sufficient competency determination but concluding that the safeguards were sufficient and Mr. Reid failed to identify any others that should have been implemented.
Notable Holdings & Rationale
- The Second Circuit reversed the IJ and BIA's decisions and remanded for further proceedings including to re-evaluate Mr. Reid's competency and the appropriate safeguards. The Court of Appeals held that, under Matter of M-A-M- and the Due Process Clause of the Fifth Amendment, "to protect the rights and privileges of noncitizens who may be incompetent, an IJ must: (1) make a finding as to whether the noncitizen is incompetent; and, if so, (2) generate a record of sufficient findings regarding the character, scope, and severity of the noncitizen's incompetency; (3) implement safeguards that address the character, scope, and severity of the noncitizen's incompetency; and (4) articulate how and why the safeguards adequately and appropriately protect the noncitizen's rights and privileges under the INA and the Due Process Clause." Moreover, "a reviewing court cannot affirm the ultimate adequacy and appropriateness of safeguards to protect the noncitizen's rights and privileges in the absence of sufficient findings at each step of the Matter of M-A-M- framework."
- The Second Circuit recognized that "in cases of plausibly remediable incompetency, the range of safeguards IJs may consider includes halting the proceedings via administrative closure or termination without prejudice as to the government's right to reopen."
- The Second Circuit further held that Mr. Reid was not required on appeal to show that he was prejudiced by the IJ's conduct in the hearing, and that even if prejudice was required that there was prejudice at least as to the denial of his application for an admissibility waiver.
Farhane v. United States [ineffective assistance of counsel; Sixth Amendment right to effective assistance of counsel; immigration consequences of criminal convictions; denaturalization]
Farhane v. United States, No. 20-1666, __ F.4th __ (2d Cir. Oct. 31, 2024) (en banc)
Facts & Background
- Mr. Farhane was criminally charged in 2005 by the U.S. Attorney for the Southern District of New York for providing false statements, conspiracy to provide material support for terrorism (a count that carried a statutory maximum of fifteen years), and making false statements to law enforcement officers in connection with a terrorism investigation. He pleaded guilty on advice of counsel in 2006 to conspiracy to commit money laundering and to making materially false statements involving international terrorism. The plea agreement stipulated a statutory maximum of thirteen years and waived his right to appeal or collaterally attach any sentence.
- Mr. Farhane was sentenced by the federal district court in 2007 to thirteen years incarceration and two years of supervised release. He filed a notice of appeal and expressed his desire to raise an ineffective assistance of counsel claim. But his appointed counsel moved to withdraw that appeal in 2008 based on the terms of the plea agreement and the motion to withdraw and dismiss the appeal was granted in 2011.
- Mr. Farhane was released from prison in 2017 and notified in 2018 that the government was beginning a civil denaturalization action against him, alleging that he obtained his naturalization unlawfully and pointing to two assertions in his 2006 guilty plea as admissions of providing false testimony to INS in 2002. The government also alleged that the false testimony couple with his pre-2002 criminal acts showed he was not a person of good moral character.
- In December 2018, Mr. Farhane moved to vacate his plea and sentence based on counsel's failure to advise that his plea carried a risk of denaturalization and deportation. The government opposed, arguing that the Sixth Amendment does not require counsel to advise about "collateral consequences" such as denaturalization. The district court denied the motion, reasoning that there was no evidence showing that his counsel "should have known" about his exposure to denaturalization and that the Supreme Court's decision in Padilla did not apply because there was no imminent risk of deportation.
- In August 2023, a divided panel of the Second Circuit affirmed the district court's decision, "concluding that civil denaturalization is a collateral and not a direct consequence of a conviction, and that the Sixth Amendment therefore imposes no obligation on attorneys to warn of that risk."
Notable Holdings & Rationale
- The issue presented was framed as "whether a naturalized United States citizen has a Sixth Amendment right to be advised by counsel that he may be denaturalized and deported as a result of his entry of a guilty plea."
- "In its 2010 decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, the Supreme Court ruled that the Sixth Amendment requires criminal defense counsel to advise her client of a risk of deportation associated with such a plea. Today we hold that the Sixth Amendment entitles a naturalized U.S. citizen facing the risk of deportation following denaturalization to no less protection than a noncitizen facing the risk of deportation."
- "We conclude that, under Padilla, a naturalized U.S. citizen has a Sixth Amendment right to be advised by counsel that he may be denaturalized and deported as a result of his entry of a guilty plea."
- "We now reaffirm that understanding and decide that, applying Padilla and its clarifying companion case, Chaidez v. United States, 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), criminal defense attorneys have a Sixth Amendment obligation to inquire into and advise a naturalized citizen client of any risk of deportation following denaturalization proceedings that accompany the client's guilty plea, just as they do for a deportation risk facing a noncitizen client. If the plea carries such a risk and counsel has failed to address it, then the two-pronged Strickland test applies: we ask whether counsel's performance fell below an objective standard of reasonableness at the time, and whether the client has shown that he was prejudiced by counsel's deficient performance. The outcome of a Sixth Amendment challenge to the conviction will hinge on the answers to those questions."
- "To provide effective representation, counsel must advise her client as to that paired set of serious adverse immigration consequences by at least flagging the risk."
- En banc decision vacated the decision of the prior panel majority and district court and remanded for further proceedings consistent with this opinion. The multiple concurrences and dissents suggests that this remains a complicated area of law.
Supreme Court
Riley v. Garland [judicial review; withholding-only proceeding]
Riley v. Garland, Case No. 23-1270
Facts & Background
- Petitioner Pierre Riley, ineligible for cancellation of removal or discretionary relief from removal, sought deferral in withholding-only proceedings, pursuant to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- The BIA reversed the IJ's grant of relief. Riley promptly petitioned for review by the U.S. Court of Appeals for the Fourth Circuit. Although both parties urged the court to decide the merits of the case, the Fourth Circuit dismissed Riley's petition for lack of jurisdiction pursuant to 8 U.S.C. 1252(b)(1), which states "®he petition for review must be filed not later than 30 days after the date of the final order of removal."
- Questions presented:
- 1. Whether the 30-day deadline in 8 U.S.C. 1252(b)(1) for filing a petition for review of an order of removal is jurisdictional.
- 2. Whether a noncitizen satisfies the deadline in Section 1252(b)(1) by filing a petition for review challenging an agency order denying withholding of removal or protection under the Convention Against Torture within 30 days of the issuance of that order.
Notable Holdings & Rationale
- The Supreme Court granted certiorari on November 4, 2024. The case has not yet been scheduled for oral argument.
Velazquez v. Garland [voluntary departure; timely departure]
Velazquez v. Garland, Case No. 22-9576
Facts & Background
- The case was appealed from the Tenth Circuit Court of Appeals.
- Federal immigration law allows the government to grant a "voluntary departure" period of up to 60 days to a noncitizen "of good moral character" who receives an adverse decision in removal proceedings. 8 U.S.C. §1229c(b). If the noncitizen fails to depart during that window, he or she is subject to a civil fine and is ineligible for various forms of immigration relief (like cancellation of removal or adjustment of status) for 10 years. §1229c(d)(1). If, however, the noncitizen "file[s] a post-decision motion to reopen or reconsider during the period allowed for voluntary departure," the penalties for failure to voluntarily depart do not apply. 8 C.F.R. § 1240.26(b)(3)(iii).
- Question presented: When a noncitizen's voluntary-departure period ends on a weekend or public holiday, is a motion to reopen filed the next business day sufficient to avoid the penalties for failure to depart?
Notable Holdings & Rationale
- The Supreme Court granted certiorari on July 2, 2024. The Court heard oral arguments on November 12, 2024.