Dear AILA Santa Clara Valley Chapter,

Happy Cinco de Mayo! Thanks to Wikipedia, I found out that, originally Cinco de Mayo was a commemoration of the Mexican Army’s victory over the French Empire at the Battle of Puebla on May 5, 1862. Interestingly, the French did end up taking over in future battles, but that one fight and victory was so significant because it represented a true David and Goliath story and gave fuel and morale for the Mexican soldiers to keep on fighting. Cinco de Mayo now is just a fantastic celebration and I hope that all of you are celebrating in some way, but this story and countless other underdog stories reminds me of us, as immigration lawyers. We are always the underdog when compared with the arsenal of weapons the government has. Yet, we fight, one case at a time and every single victory is our own Cinco de Mayo. As relief and benefits are being stripped away and there does not seem to be much we can do at the higher level, each victory on each case is our own Cinco de Mayo so we should be celebrating all of our victories. There are so many cases and so many tasks, I wonder if we pause for the little (and big) victories…if you don’t, then I encourage you to stop, think about your week and celebrate all the small and big victories. I got a call from one of my client’s this week, who we had helped reunite with her daughter many years ago. Apparently, (because I don’t remember) I told the daughter how much her mom sacrificed and encouraged her to be good in school. The mom called to tell me that she was graduating from University top of her class and wanted to invite me to her graduation. We are with clients in their time of need and it’s nice to see the happily ever after as well.

Nationally, this week, the announcement of the end of TPS to Honduras after 20 years was disheartening. AILA issued a press statement about the devastating effects this will have on families and over 50,000 US born children http://www.aila.org/advo-media/press-releases/2018/termination-of-tps-for-honduras-will-tear-apart . The fate of DACA continues to be in jeopardy as Texas and six other states sue to end the program. http://www.aila.org/infonet/texas-and-six-other-states-sue-the-government. Merle’s Corner has great insight on where everything stands and who is who in this process. The Administration’s priorities continue to be making things as difficult as possible for asylum seekers at the border. The response has been to send additional prosecutors and Immigration Judges to prosecute “illegal entrants” and not address the humanitarian crisis by providing some kind of shelter and assistance. http://www.aila.org/infonet/doj-announces-additional-prosecutors. The pictures speak for themselves as to who is at the border applying. Although our voice seems deafened by the rhetoric, we must continue to reiterate that they are lawfully applying for asylum and they are not doing anything illegal. I want you to view Greg Chen’s excellent presentation on asylum on C-SPAN https://www.c-span.org/video/?444973-3/washington-journal-greg-chen-discusses-asylum-process-us.

Locally, we are all excited about the installation dinner. Last year we had it at the Capital Club and everyone enjoyed it. The view is beautiful, the food is great, we have a great speaker and program lined up and we are hoping to see many USCIS, EOIR and our Congressional office representatives attend. We need to have an accurate head count pretty soon so I encourage you to go to the link below and register. At the Installation Dinner, in accordance with our bylaws, you will vote for the candidates for office and once the vote is tallied, we can announce the winners and swear them in to the new term. I need five volunteers who will be part of the meet and greet, ballot counting and collecting tickets. As we announced at the last Chapter meeting, we have a challenge for you, with a prize…if you sign up for the Chapter website between now (May 5, 2018) and May 13, 2018, you will be entered into a drawing. The prize is a free ticket to the installation dinner, but the bigger prize is that you will have a great informative website that you would bookmark and keep returning to over and over. And now, the super informative Merle’s Corner doing a kinda throwback NACARA edition…

Merle’s Corner

Weekly Case Update for Week Ending 5.4.18

This week Texas and six other states filed a lawsuit in Federal District Court in Texas moving the court to enjoin DACA. The Trump administration is refusing to defend the case and the Mexican American Legal Defense and Education Fund (MALDEF) will likely intervene to represent the DACA recipients. The case will be heard by Judge Hanen in Brownsville Texas. You might remember that Judge Hanen is the judge who enjoined DAPA back in 2015. Two District Courts, (one in New York and one in San Francisco) have ruled that DACA is a lawful exercise of executive power, and it is likely that the Texas District Court will rule the other way. These cases will likely end up in the Circuit Courts and eventually in the Supreme Court. Closer to home, it was a quiet week for immigration law within the Ninth Circuit and the Board of Immigration Appeals. No cases came down from the BIA, the Attorney General, the District Courts or the Supreme Court. Only one case came down from the Ninth Circuit.

Ninth Circuit – Physical Presence for Special Cancellation NACARA – Start Counting Time from the Latest Disqualifying Act

The Ninth Circuit held, to qualify for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA) the noncitizen must show that he has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of the latest disqualifying act. The ten-year period ends when the noncitizen files an application for special rule cancellation of removal.

In order to understand this case, we need a mini lesson on NACARA. In 1997, Congress enacted NACARA in 1997 to ameliorate the harsh consequences of IIRIRA for certain Salvadorans, Guatemalans, and Eastern Europeans as it related to cancellation of removal for nonpermanent residents. To go back in time even further, we need to understand “Suspension of Deportation.” Prior to 1996, noncitizens in the United States who had been living in the United States for seven years or longer, who could establish good moral character, and who could establish extreme hardship to him or herself or to a U.S. citizen or lawful permanent resident parent, spouse, or child, could apply for suspension. The clients called it the “seven-year green card.” It was a discretionary form of relief, but there were no limits on the numbers of people who could be granted suspension. In San Francisco, if you had a client who had been living in the United States for at least seven years, had paid taxes, and had U.S. citizen children, it was pretty easy to get suspension.

IIRIRA got rid of suspension and replaced it with cancellation of removal. But, less than a year later, Congress enacted NACARA which had the more generous rules to benefit Central Americans and Eastern Europeans. Special rule cancellation allows for relief from deportation if the noncitizen can establish 1) seven years of residency in the United States; 2) good moral character during the statutory period; and 3) extreme hardship to the noncitizen or to the lawful permanent resident or U.S. citizen parent, spouse, or child. If a noncitizen has been convicted of certain crimes then they have to show ten years residency, and good moral character and exceptional and extremely unusual hardship. It is the same standard as suspension of deportation.

Now back to 2018. Mr. Campos-Hernandez is a native and citizen of El Salvador. In 1990 or 1991 (when he was in his 20’s) he entered the United States without inspection. He is married to a U.S. citizen. In 2003, 2005, and 2008, he was convicted of drug-related offenses in California. He applied for NACARA and the BIA held that he did not qualify. The BIA held that the physical presence requirement of ten years (he had the heightened standard because of the convictions) ran from the time of his most recent disqualifying conviction – 2008 rather than 2003.

Mr. Campos-Hernandez appealed the decision contending that the time to start counting the ten years was from the date of his earliest conviction, not the last conviction. His argument was based on a suspension of deportation case from 1962. In that case the noncitizen had applied for the suspension of deportation and the law at that time required ten years of physical presence. The Ninth Circuit examined what date and which unlawful action by the noncitizen started (yes, started) ten years of physical presence? Was it when he accepted employment even though he was here on a nonimmigrant visa? Was it later when he overstayed his visa? Or, was it when he failed to send his change of address to the Attorney General. The Ninth Circuit ultimately held that the earliest date of unlawful action started the clock for the noncitizen to acquire the necessary ten-years physical presence. The Ninth Circuit held, that because the way the statute was worded left it open to two possible constructions, that it should be strictly construed in favor of the immigrant. The Court held, “Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile’… and should be strictly construed.’” Fong v. Immigration & Naturalization Serv., 308 F.2d 191, 194–95 (9th Cir. 1962). I’ll just let that language stay there.

While Mr. Campos-Hernandez’s appeal was pending before the Ninth Circuit, the BIA issued a precedential decision on this issue, Matter of Castro-Lopez, 26 I.&N. Dec. 693 (BIA 2015). Castro-Lopez holds that for purposes of special rule cancellation of removal continuous physical presence should be measured from the noncitizen’s most recently incurred ground of removal. The decision is in direct contradiction to Fong. So, does the BIA’s interpretation of the statute control or does the Ninth Circuit’s interpretation control? Do you start counting time from the date of the first conviction in this case or the date of the last conviction? Fong holds the date of the first conviction to try to avoid the harshness of exile, while Castro-Lopez states the latest date. The Ninth Circuit engaged in an exhaustive analysis of Chevron deference, Brand X, and Auer deference. Until I read this case I did not even know about the existence of Auer deference. (Auer deference holds that an agency’s interpretation of its own regulation is entitled to deference by the circuit courts. It’s like Chevron deference for regulations. Auer v. Robbins, 519 U.S. 452 (1997)). The Ninth Circuit found that under Chevron, Brand X, and Auer, it had to defer to the BIA’s decision in Castro-Lopez.

For a deep dive into Chevron deference, Brand X, and Auer deference, this is the case.

Campos-Hernandez v. Sessions, No. 14-70034 (9th Cir. May 2, 2018).