Deportation of Afghan refugees from the United States

Deportation of Afghan refugees from the United States refers to the refoulment of Afghan refugees with no criminal conviction[1] and/or the involuntary removal of Afghan-Americans who have been convicted of common crimes in the United States.[2][3] Some of these individuals in removal proceedings were admitted to the United States in the early 1980s with their refugee family members after escaping from genocide, and have continuously spent decades in the United States as lawful permanent residents.[4][5][6]

According to the Immigration and Nationality Act (INA), the Afghan-Americans did not enter the United States with immigrant visas as lawful permanent residents but rather with travel documents as refugees.[4] As such, they have been exempt from deportation since 1980 when the U.S. Congress enacted 8 U.S.C. §§ 1157 and 1159.[7][8][9] This legal finding is supported by latest precedents of all the U.S. courts of appeals and the Board of Immigration Appeals (BIA),[10] which are binding on all immigration judges and Department of Homeland Security (DHS) officers.[11][12][13][14][15][16]

History

Afghans escaping genocide and persecution

In the late 1970s, Afghanistan began to experience a great turmoil. Many of its citizens, particularly the elite class, were admitted to Pakistan as refugees escaping from: (1) genocide that was orchestrated by the Communist People's Democratic Party of Afghanistan (PDPA); and (2) political repression of the mujahideen, who were engaged in a guerrilla warfare with the PDPA.

In 1980, the U.S. Congress and the Carter administration enacted the Refugee Act, which allowed 50,000 refugees from various countries to enter the United States annually.[17] Each year, from 1980 onward, groups of hundreds of Afghan refugee families lawfully entered the United States. These people were issued by the U.S. Department of State special travel documents. A very small number of such families entered with false travel documents and then applied for asylum inside the United States.[18] After residing for at least one year in the United States, the then Immigration and Naturalization Service (INS) adjusted their status to lawful permanent residents.[4] This process statutorily protected them from refoulment and deportation from the United States for lifetime.[8][19][9] In this regard, 8 U.S.C. § 1159(c) states the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of [section 1182(a)] (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (emphasis added).[8][7][20]

These refugee families were distributed all across the United States. Most of them settled in and around New York City, California, Northern Virginia, Florida, and Texas. In Landon v. Plasencia, 459 U.S. 21, 32 (1982), the U.S. Supreme Court reminded the Attorney General that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." That opinion was issued after Congress and the Reagan administration had brought into the United States large number of refugees from various countries that were experiencing civil wars and genocides.[17]

Expansion of the definition of "nationals but not citizens of the United States"

In 1986, less than a year before the United Nations Convention against Torture (CAT) became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to 8 U.S.C. § 1408, which reads as follows:

Unless otherwise provided in section 1401 of this title, the following shall be nationals, but not citizens, of the United States at birth: .... (4) A person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years—(A) during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and (B) at least five years of which were after attaining the age of fourteen years. (emphasis added).[21][20]

The natural reading of § 1408(4) demonstrates that it was not exclusively written for the 55,000 American Samoans but rather for all people who statutorily and manifestly qualify as "nationals but not citizens of the United States."[21][20] This means that any Afghan-American who can show by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of 8 U.S.C. §§ 1408(4) and 1436 is plainly and unambiguously a "national but not a citizen of the United States."[22][23] Such person must never be labelled or treated as an alien, especially after demonstrating that he or she has continuously resided in the United States for at least 10 years without committing any offense that may trigger removability.[4][12][13][14][15][24] "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."[16]

Introduction of "aggravated felony"

In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101(a).[25] The definition of the term gradually expanded over the years. In February 1995, U.S. President Bill Clinton issued a directive in which he expressly stated the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General, the Secretary of Health and Human Services, the Chair of the Equal Employment Opportunity Commission, and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment. All illegal immigration enforcement measures shall be taken with due regard for the basic human rights of individuals and in accordance with our obligations under applicable international agreements. (emphasis added).[26][20]

Illegal Immigration Reform and Immigrant Responsibility Act

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which is particularly aimed at combating illegal immigration to the United States.[27] However, many incompetent U.S. immigration officials began arresting and detaining long-settled legal immigrants (i.e., potential Americans).[4][28][8] Unlike illegal aliens, legal immigrants have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc., and they work legally, own homes and businesses in the United States, and some of them, especially the above refugees-turned-immigrants whose statuses had been lawfully enhanced to permanent residents, statutorily qualified as nationals of the United States after continuously residing in the country for at least 10 years without committing any offense that may trigger removability.[8][29] This appears to be the reason why the permanent resident card (green card) is valid for 10 years. All Afghan-Americans should have obtained citizenship of the United States within 10 years of their arrival,[30] but if that was unachievable then they statutorily became "nationals but not citizens of the United States" after such 10 years have elapsed. Anything to the contrary is plainly unconstitutional.[31][12][13][14][15][16]

In other words, despite being lawful permanent residents of the United States, the Afghan-Americans are still "refugees" under the INA and international law,[17][9] and they obviously owe permanent allegiance solely to the government of the United States.[32] These Afghan-Americans have never pledged allegiance to the PDPA government, which dissolved in April 1992, nor to the new governments that came to power afterwards. This makes them nothing but non-citizen "nationals of the United States," which simply means that they are Americans who cannot become U.S. citizens but allowed to live in the United States with their American families for the rest of their life. Deporting such Americans constitutes a gravely serious international crime.[12][13][14][15][24][16]

"Only aliens are subject to removal."[33] The terms "inadmissible aliens" and "deportable aliens" are synonymous in the INA.[8] In short, both classes are not suppose to be in the United States, and if certain aliens are statutorily not inadmissible then they are obviously not deportable.[29] Anything to the contrary would turn deportation into vacation for those who are statutorily not inadmissible. It is common knowledge that "aliens" mainly refer to the 75 million foreign nationals who visit the United States each year,[34][35] the 12 million foreign nationals who are in the country illegally, and the 400,000 foreign nationals who were provided temporary protected status (TPS). None of these aliens have any right to U.S. nationality or permanent residency in the U.S. A lawful permanent resident (immigrant), on the contrary, can either be an "alien" or a "national of the United States," which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder.[8][24][23][22] The INA makes clear that any alien or any "national but not a citizen of the United States" who at any time has been convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, is "debarred from becoming a citizen of the United States."[36][37][38][39][40][41] However, unlike a "national but not a citizen of the United States," an "alien" convicted of any aggravated felony is statutorily "removable" from the country.[19][8] In other words, such alien cannot:

An alien's "order of deportation" may be reviewed at any time[9] and by any immigration judge, any BIA member, and finally by any authorized federal judge.[48] Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure.[49] The review of the order does not require the alien or the non-citizen "U.S. national" to remain in the United States. It can be requested from anywhere in the world via mail (DHL, FedEx, UPS, etc.) and/or electronic court filing (ECF), and the case can be filed in any court the person finds appropriate.[4] Every illegal deportation "claim" or U.S. nationality "claim" is adjudicated under 8 U.S.C. §§ 1252(b)(5) and 1252(f)(2).[49][22][23][44][45] When these specific provisions are invoked, all other contrary provisions of law, especially § 1252(b)(1) and Stone v. INS, 514 U.S. 386, 405 (1995) (case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA"),[27] must be disregarded because these two "claims" manifestly constitute exceptional circumstances.[50] "[T]he context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision."[51]

According to § 1252(f)(1), "no court (other than the Supreme Court)" is authorized to determine which two or more Afghan-Americans should be recognized as "nationals but not citizens of the United States."[44] The remaining courts, however, are empowered pursuant to § 1252(f)(2) to, inter alia, issue an injunction to terminate any Afghan-American's removal proceedings; return a wrongfully removed Afghan-American to the United States; and/or to confer U.S. nationality upon any Afghan-American (but only using a case-by-case analysis).[44][45][22] In addition to that, under 8 C.F.R. 239.2, any officer mentioned in 8 C.F.R. 239.1 may sua sponte at any time terminate the case of any Afghan-American who turns out to be a national of the United States or one who is simply not "removable" under the INA.[29][19][52]

Number of Afghan-Americans physically removed from the United States

Between November 2002 and January 2016, approximately 378 Afghan-Americans have been physically removed from the United States. Of these, 225 had no criminal conviction. This suggests that they probably did not possess any legal status in the United States and/or were failed asylum seekers. Among the remaining 153, one was convicted for homicide, another for negligent homicide or vehicular homicide, and the rest were convicted for assault and other common crimes, including driving under the influence (DUI), shoplifting, and traffic offenses.[2][3] Deportation of Afghan-Americans steadily declined over the years, from "77" in 2003 to only "17" in 2015.[2] The government of Afghanistan claimed that it has no repatriation agreement with the United States.[1]

See also

References

  1. 1 2 Haand, Jafar (January 30, 2018). "Afghanistan Calls on Trump to Not Deport Afghans". Voice of America (VoA). Retrieved 2018-10-02.
  2. 1 2 3 "Historical Data: Immigration and Customs Enforcement Removals". TRAC Reports, Inc. 2016. Retrieved 2018-10-02.
  3. 1 2 Thornton, Kelly (April 16, 2004). "Afghan immigrant sentenced to time served". The San Diego Union-Tribune (U-T San Diego). Retrieved 2018-10-02. Man also will lose his U.S. citizenship
  4. 1 2 3 4 5 6 Ahmadi v. Ashcroft, et al., No. 03-249 (E.D. Pa. Feb. 19, 2003) ("Petitioner in this habeas corpus proceeding, entered the United States on September 30, 1982 as a refugee from his native Afghanistan. Two years later, the Immigration and Naturalization Service (the 'INS') adjusted Petitioner's status to that of a lawful permanent resident.... The INS timely appealed the Immigration Judge's decision to the Board of Immigration Appeals (the 'BIA').") (Baylson, District Judge); Ahmadi v. Att’y Gen., 659 F. App’x 72 (3d Cir. 2016) (Slip Opinion, pp.2, 4 n.1) (invoking statutorily nullified case law, the court dismissed an obvious illegal deportation case by asserting that it lacks jurisdiction to get to the merit of the claim solely due to 8 U.S.C. § 1252(b)(1)) (non-precedential); Ahmadi v. Sessions, No. 16-73974 (9th Cir. Apr. 25, 2017) (same; unpublished single-paragraph order); Ahmadi v. Sessions, No. 17-2672 (2d Cir. Feb. 22, 2018) (same; unpublished single-paragraph order); cf. United States v. Wong, 575 U.S. ___, ___, 135 S.Ct. 1625, 1632 (2015) ("In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has clearly stated as much. Absent such a clear statement, ... courts should treat the restriction as nonjurisdictional.... And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional.") (citations, internal quotation marks, and brackets omitted) (emphasis added); see also Bibiano v. Lynch, 834 F.3d 966, 971 (9th Cir. 2016) ("Section 1252(b)(2) is a non-jurisdictional venue statute") (collecting cases) (emphasis added); Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc) (the court clarified "that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law.").
  5. ↑ "Afghan-American Family Finds Ramadan Good Opportunity for Reflection". Voice of America (VOA). September 9, 2010. Retrieved 2018-10-04.
  6. ↑ "Little Kabul -- An Afghan American Community in California". dingopanga. October 21, 2011. Retrieved 2018-10-04.
  7. 1 2 3 4 8 U.S.C. § 1157(c)(3) ("The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) ... shall not be applicable to any alien seeking admission to the United States under this subsection, and the Attorney General may waive any other provision of [section 1182(a)] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.") (emphasis added).
  8. 1 2 3 4 5 6 7 8 9 10 8 U.S.C. § 1159(c) ("Coordination with section 1182"); Galindo v. Sessions, ___ F.3d ___, ___, No. 17-1253, p.4-5 (7th Cir. July 31, 2018) (explaining that under the Immigration and Nationality Act (INA), the terms "inadmissible" aliens and "deportable" aliens are synonymous); see also 8 U.S.C. § 1101(a)(13)(A) ("The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.") (emphasis added).
  9. 1 2 3 4 Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999) (en banc) ("Aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation who have presented evidence establishing materially changed circumstances in [Afghanistan] or [the United States], such that they meet the general requirements for motions to reopen, need not demonstrate 'reasonable cause' for their failure to appear at the prior exclusion hearing.") (emphasis added).
  10. ↑ Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) (collecting court cases) ("An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.") (emphasis added); De Leon v. Lynch, 808 F.3d 1224, 1232 (10th Cir. 2015) ("Mr. Obregon next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA's recent decision in Matter of J–H–J–, he is correct."); see also Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014) ("A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered."); Ledezma-Galicia v. Holder, 599 F.3d 1055 (9th Cir. 2010) ("We conclude that he may not be removed, because (1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and (2) neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation.").
  11. ↑ "Board of Immigration Appeals". U.S. Dept. of Justice. March 16, 2018. Retrieved 2018-09-27. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court.
  12. 1 2 3 4 "Deprivation Of Rights Under Color Of Law". U.S. Dept. of Justice. August 6, 2015. Retrieved 2018-10-02. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. (emphasis added).
  13. 1 2 3 4 18 U.S.C. §§ 241–249; United States v. Lanier, 520 U.S. 259, 264 (1997) ("Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States."); United States v. Lanier, 123 F.3d 945 (6th Cir. 1997); Hope v. Pelzer, 536 U.S. 730, 736-37 (2002); United States v. Acosta, 470 F.3d 132, 136 (2d Cir. 2006) (holding that 18 U.S.C. §§ 241 and 242 are "crimes of violence"); see also 42 U.S.C. §§ 1981–1985; Ziglar v. Abbasi, 582 U.S. ___ (2017).
  14. 1 2 3 4 "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved 2018-09-27. [The United States] shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (emphasis added).
  15. 1 2 3 4 "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. p. 806-7. Retrieved 2018-10-02. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution.... (emphasis added).
  16. 1 2 3 4 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (citation and internal quotation marks omitted); see also Arizona v. United States, 567 U.S. 387, 395 (2012) ("Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad."); "Certificates of Non Citizen Nationality". Bureau of Consular Affairs. U.S. Department of State. Retrieved 2018-09-26.
  17. 1 2 3 8 U.S.C. § 1101(a)(42) ("The term 'refugee' means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable ... to return to, and is unable ... to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....") (emphasis added).
  18. ↑ König, Karin (1989). Detained, Denied, Deported: Asylum Seekers in the United States. Human Rights Watch. p. 45. ISBN 9780929692227.
  19. 1 2 3 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); see also Tima v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-4199, p.11 (3d Cir. Sept. 6, 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well.").
  20. 1 2 3 4 Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  21. 1 2 8 U.S.C. § 1408 ("Nationals but not citizens of the United States at birth"); see also 8 U.S.C. § 1436.
  22. 1 2 3 4 5 Khalid v. Sessions, ___ F.3d ___, ___, No. 16‐3480‐ag, p.6 (2d Cir. Sept. 13, 2018) ("Khalid is a U.S. citizen and the Department of Homeland Security (DHS) must terminate removal proceedings against him.") (oral argument (audio)); Jaen v. Sessions, ___ F.3d ___, ___, ___, No. 17-1512, pp.6-7, 19 (2d Cir. Aug. 13, 2018) (same); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); Dent v. Sessions, ___ F.3d ___, ___, No. 17-15662, p.10-11 (9th Cir. Aug. 17, 2018) ("An individual has third-party standing when [(1)] the party asserting the right has a close relationship with the person who possesses the right [and (2)] there is a hindrance to the possessor's ability to protect his own interests.") (quoting Sessions v. Morales-Santana, 582 U.S. ___, ___, 137 S.Ct. 1678, 1689 (2017)) (internal quotation marks omitted); Gonzalez-Alarcon v. Macias, ___ F.3d ___, No. 16-2263 (10th Cir. Mar. 19, 2018); Hammond v. Sessions, No. 16-3013, p.2-3 (2d Cir. Jan. 29, 2018) ("It is undisputed that Hammond's June 2016 motion to reconsider was untimely because his removal order became final in 2003.... Here, reconsideration was available only under the BIA's sua sponte authority. 8 C.F.R. 1003.2(a). Despite this procedural posture, we retain jurisdiction to review Hammond's U.S. [nationality] claim."); accord Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010) ("Duarte's legal claim encounters no jurisdictional obstacle because the Executive Branch has no authority to remove a [national of the United States]."); 8 C.F.R. 239.2; see also Yith v. Nielsen, ___ F.3d ___, ___, No. 16-15858, p.5-6 (9th Cir. Feb. 7, 2018) ("Once applicants have exhausted administrative remedies, they may appeal to a district court."); 8 U.S.C. § 1447(b) ("Request for hearing before district court").
  23. 1 2 3 Ricketts v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.2 (3d Cir. July 30, 2018) ("When an alien faces removal under the Immigration and Nationality Act, one potential defense is that the alien is not an alien at all but is actually a national of the United States."); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015) ("The sole such statutory provision that presently confers United States nationality upon non-citizens is 8 U.S.C. § 1408."); Matter of Navas-Acosta, 23 I&N Dec. 586, 587 (BIA 2003) ("If Congress had intended nationality to attach at some point before the naturalization process is complete, we believe it would have said so."); 8 U.S.C. § 1436 ("A person not a citizen who owes permanent allegiance to the United States, and who is otherwise qualified, may, if he becomes a resident of any State, be naturalized upon compliance with the applicable requirements of this subchapter...."); 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of [U.S. nationality] upon a person after birth, by any means whatsoever.") (emphasis added); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted); see also Saliba v. Att’y Gen., 828 F.3d 182, 189 (3d Cir. 2016) ("Significantly, an applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'"); In re Petition of Haniatakis, 376 F.2d 728 (3d Cir. 1967); In re Sotos' Petition, 221 F. Supp. 145 (W.D. Pa. 1963).
  24. 1 2 3 Edwards v. Sessions, No. 17-87, p.3 (2d Cir. Aug. 24, 2018) ("In removal proceedings involving an LPR, the government bears the burden of proof, which it must meet by adducing clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.") (internal quotation marks omitted) (summary order); accord 8 C.F.R. 1240.46(a); 8 U.S.C. § 1229a(b)(5)(A); Matter of Pichardo, 21 I&N Dec. 330, 333 (BIA 1996) (en banc); Mondaca-Vega v. Lynch, 808 F.3d 413, 429 (9th Cir. 2015) ("The burden of proof required for clear, unequivocal, and convincing evidence is greater than the burden of proof required for clear and convincing evidence."); Ward v. Holder, 733 F.3d 601, 604–05 (6th Cir. 2013); Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006); Berenyi v. Immigration Dir., 385 U.S. 630, 636-37 (1967) ("When the Government seeks to strip a person of [U.S. nationality] already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.' . . . [T]hat status, once granted, cannot lightly be taken away...." (footnotes omitted)); Woodby v. INS, 385 U.S. 276, 285 (1966); Chaunt v. United States, 364 U.S. 350, 353 (1960).
  25. ↑ "Subtitle J—Provisions Relating to the Deportation of Aliens Who Commit Aggravated Felonies, Pub. L. 100-690, 102 Stat. 4469-79, § 7342". U.S. Congress. November 18, 1988. p. 289-90. Retrieved 2018-09-26. Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end thereof the following new paragraph: '(43) The term 'aggravated felony' means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.'
  26. ↑ "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved 2018-09-26. See also Zuniga-Perez v. Sessions, ___ F.3d ___, ___, No. 17-996, p.11 (2d Cir. July 25, 2018) ("The Constitution protects both citizens and non‐citizens.") (emphasis added).
  27. 1 2 Othi v. Holder, 734 F.3d 259, 264-65 (4th Cir. 2013) ("In 1996, Congress 'made major changes to immigration law' via IIRIRA. . . . These IIRIRA changes became effective on April 1, 1997.").
  28. ↑ Evangelista v. Ashcroft, 359 F.3d 145, 148 (2d Cir. 2004).
  29. 1 2 3 8 U.S.C. § 1101(a)(13)(C); see also Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc) ("Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an offense must be one 'referred to in section 212(a)(2)' of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.").
  30. ↑ 8 U.S.C. § 1427 ("Requirements of naturalization"); see also 8 U.S.C. § 1101(f) (listing eight separate factors that disqualify a person from demonstrating good moral character);
    • "Path to U.S. Citizenship". United States Citizenship and Immigration Services (USCIS). January 22, 2013. Retrieved 2018-10-02.
    • "How to Apply for U.S. Citizenship". www.usa.gov. September 4, 2018. Retrieved 2018-10-02.
  31. ↑ Morales-Santana v. Lynch, 804 F.3d 520 (2d Cir. 2015).
  32. ↑ 8 U.S.C. § 1101(a)(20) ("The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant ...."); see also 8 U.S.C. § 1101(a)(15) (defining the term "immigrant").
  33. ↑ Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003).
  34. ↑ "Destination USA: 75 million international guests visited in 2014". share.america.gov. Retrieved 2018-10-02.
  35. ↑ "International Visitation to the United States: A Statistical Summary of U.S. Visitation" (PDF). U.S. Department of Commerce. 2015. p. 2. Retrieved 2018-10-02.
  36. ↑ 8 U.S.C. § 1101(a)(19)
  37. ↑ 8 U.S.C. § 1101(f)(8) ("No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was ... (8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43))....") (emphasis added).
  38. ↑ "8 U.S.C. § 1427(d)-(e)". U.S. Congress. Cornell Law School. Retrieved 2018-10-02.
  39. ↑ Al-Sharif v. United States Citizenship and Immigration Services, 734 F.3d 207, 212 (3d Cir. 2013) (en banc).
  40. ↑ Mobin v. Taylor, 598 F.Supp.2d 777 (E.D. Va. 2009) (Ellis III, District Judge).
  41. ↑ Adiel Kaplan, ed. (July 9, 2018). "Miami grandma targeted as U.S. takes aim at naturalized immigrants with prior offenses". Miami Herald. Retrieved 2018-10-02.
  42. ↑ 8 U.S.C. § 1227(a)(2)(A)(vi)
  43. ↑ See generally 8 C.F.R. 239.2(e) ("When a notice to appear is canceled or proceedings are terminated under this section any outstanding warrant of arrest is canceled."); 8 U.S.C. § 1229b; 8 U.S.C. § 1254a(e) ("Relation of period of temporary protected status to cancellation of removal"); Nguyen v. Sessions, ___ F.3d ___, ___, No. 15-72747, p.3 (9th Cir. Aug. 23, 2018); Lopez v. Sessions, ___ F.3d ___, ___-___, No. 15-72747, pp.10-14 (9th Cir. Aug. 22, 2018) (regarding INA § 212(c) relief); "I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)". USCIS. Retrieved 2018-10-02.
  44. 1 2 3 4 Jennings v. Rodriguez, 583 U.S. ___, 138 S.Ct. 830, 875 (2018) (p.42 here); Wheaton College v. Burwell, 134 S.Ct. 2806, 2810-11 (2014) ("Under our precedents, an injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably clear.") (internal quotation marks and brackets omitted); Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010); Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001) (stating that "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally."); Alli v. Decker, 650 F.3d 1007, 1010-11 (3d Cir. 2011) (same); Andreiu v. Ashcroft, 253 F.3d 477, 482-85 (9th Cir. 2001) (en banc) (same); see also 8 U.S.C. § 1326(d) ("Limitation on collateral attack on underlying deportation order").
  45. 1 2 3 Singh v. USCIS, 878 F.3d 441, 443 (2d Cir. 2017) ("The government conceded that Singh's removal was improper.... Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary parole to certain aliens."); Orabi v. Att’y Gen., 738 F.3d 535, 543 (3d Cir. 2014) ("The judgment of the BIA will therefore be reversed, with instructions that the Government... be directed to return Orabi to the United States in accordance with the ICE regulations cited."); Avalos-Palma v. United States, No. 13-5481 (FLW), 2014 WL 3524758, p.3 (D.N.J. July 16, 2014) ("On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States."); In re Vikramjeet Sidhu, A044 238 062, at 1-2 (BIA Nov. 30, 2011) ("As related in his brief on appeal, the respondent was physically removed from the United States in June 2004, but subsequently returned to this country under a grant of humanitarian parole (Brief at 2).... Accordingly, the proceedings will be terminated.") (three-member panel).
  46. 1 2 Matter of G-G-S-, 26 I&N Dec. 339, 341, 347 n.6 (BIA 2014).
  47. ↑ Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); see also 8 U.S.C. § 1252(a)(4) ("Claims under the United Nations Convention").
  48. ↑ 8 U.S.C. § 1101(a)(47); Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1253 (2015); Nassiri v. Sessions, No. 16-60718 (5th Cir. Dec. 14, 2017); Alimbaev v. Att'y, 872 F.3d 188, 194 (3d. Cir. 2017) (explaining that "even when presented with these discretionary decisions, we may review colorable claims or questions of law, such as whether the BIA misapplied the legal standard.... And, of course, when our jurisdiction is unclear, we have jurisdiction to determine whether we have jurisdiction.") (citations, internal quotation marks and brackets omitted); United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007) ("A district court abuses its discretion when it acts arbitrarily or irrationally, fails to consider judicially recognized factors constraining its exercise of discretion, relies on erroneous factual or legal premises, or commits an error of law."), cert. denied, 555 U.S. 812 (2008).
  49. 1 2 United States v. Bueno-Sierra, No. 17-12418, p.6-7 (6th Cir. Jan. 29, 2018) ("Rule 60(b)(1) through (5) permits a district court to set aside an otherwise final judgment on a number of specific grounds, such as mistake, newly discovered evidence, an opposing party’s fraud, or a void or satisfied judgment. Rule 60(b)(6), the catch-all provision, authorizes a judgment to be set aside for 'any other reason that justifies relief.' Rule 60(d)(3) provides that Rule 60 does not limit a district court’s power to 'set aside a judgment for fraud on the court.'") (citations omitted) (unpublished); Herring v. United States, 424 F.3d 384, 386-87 (3d Cir. 2005) ("In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court."); 18 U.S.C. § 371; 18 U.S.C. § 1001 (court employees (including judges and clerks) have no immunity from prosecution under this section of law); Luna v. Bell, ___ F.3d ___, ___, No. 17-5675, p.5 (6th Cir. Apr. 5, 2018) ("Under Rule 60(b)(2), a party may request relief because of 'newly discovered evidence.'"); United States v. Handy, ___ F.3d ___, ___, No. 18-3086, p.5-6 (10th Cir. July 18, 2018) ("Rule 60(b)(4) provides relief from void judgments, which are legal nullities.... [W]hen Rule 60(b)(4) is applicable, relief is not a discretionary matter; it is mandatory. And the rule is not subject to any time limitation.") (citations, brackets, and internal quotation marks omitted); Mattis v. Vaughn, No. 99-6533, p.3-4 (E.D. Pa. June 4, 2018); accord Satterfield v. Dist. Att'y of Phila., 872 F.3d 152, 164 (3d Cir. 2017) ("The fact that . . . proceeding ended a decade ago should not preclude him from obtaining relief under Rule 60(b) if the court concludes that he has raised a colorable claim that he meets this threshold actual-innocence standard ...."); see also United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral review jurisprudence, the term 'miscarriage of justice' means that the defendant is actually innocent.... The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant....") (citations omitted); Davis v. United States, 417 U.S. 333, 346-47 (1974) (regarding "miscarriage of justice" and "exceptional circumstances"); Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017) (same); Pacheco-Miranda v. Sessions, No. 14-70296 (9th Cir. Aug. 11, 2017) (same); In re Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016) (same; unpublished three-member panel decision); In re Vikramjeet Sidhu, A044 238 062 (BIA Nov. 30, 2011) (same; unpublished three-member panel decision); accord Matter of G-N-C-, 22 I&N Dec. 281, 285 (BIA 1998) (en banc); Matter of JJ-, 21 I&N Dec. 976 (BIA 1997) (en banc).
  50. ↑ NLRB v. SW General, Inc., 580 U.S. ___, ___, 137 S.Ct. 929, 939 (2017) ("The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.' In statutes, the [notwithstanding any other provision of law] 'shows which provision prevails in the event of a clash.'"); In re JMC Telecom LLC, 416 B.R. 738, 743 (C.D. Cal. 2009) (explaining that "the phrase 'notwithstanding any other provision of law' expresses the legislative intent to override all contrary statutory and decisional law.") (internal quotation marks and brackets omitted) (emphasis added); In re Partida, 862 F.3d 909, 912 (9th Cir. 2017) ("That is the function and purpose of the 'notwithstanding' clause."); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1083 (9th Cir. 2014) ("As a general matter, 'notwithstanding' clauses nullify conflicting provisions of law."); see also Jones v. United States, No. 08-645C, p.4-5 (Fed. Cl. Sep. 14, 2009); Kucana v. Holder, 558 U.S. 233, 238-39 n.1 (2010); Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (collecting court cases).
  51. ↑ Nken v. Holder, 556 U.S. 418, 443 (2009) (Justice Alito dissenting with Justice Thomas).
  52. ↑ Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998) (en banc).
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