Cantu –Delgadillo v. Holder, No. 08-60122 (5th Cir. Oct. 1, 2009)

Mr. Cantu-Delgadillo is a citizen of Mexico who became an LPR in 1978. In 1996 he was convicted of possession of a controlled substance and was given deferred adjudication in Texas and 10 years probation.

He has a complex procedural history. He was placed in deportation proceedings and charged with a controlled substance violation and aggravated felony. Subsequently, the IJ found deportability on all charges, ordered deportation and found him ineligible for relief. The BIA affirmed but found he was deportable for the controlled substance violation, but not as an aggravated felon. 

In 1998, the BIA administrative closed his case for “repapering” a procedure available to certain lawful permanent residents. In 2001 an NTA was issued and he was ordered removed and the BIA affirmed on grounds that he had a controlled substance violation and that he was an aggravated felon. He was found ineligible for relief, including §212(c) relief. Mr. Cantu-Delgadillo filed a federal habeas corpus petition which was consolidated with other habeas petitions challenging the BIA’s findings. The Fifth Circuit dismissed the petitions and affirmed the BIA’s findings. Subsequently, the U.S. Supreme Court vacated the habeas and remanded in light of Lopez v. Gonzalez. The Fifth Circuit then remanded to the BIA in consideration of the findings in Lopez. 

On remand, DHS withdrew its aggravated felony charge. Mr. Cantu-Delgadillo asked that his case be administrative closure to wait for “repapering” regulations. DHS opposed administrative closure. The BIA found that it could not administratively close the case unless there was agreement by both parties.

The Fifth Circuit found that Mr. Cantu Delgadillo did not meet his burden tot establish a substantive due process violation. The Court reaffirmed broad Congressional powers over immigration and found that Mr. Cantu Delgadillo did not have a fundamental liberty interest to remain in the United States with his family. The Court also found that his Equal Protection argument failed because Cantu-Delgadillo has failed to show that the BIA’s decision regarding administrative closure in his case was different from the
BIA’s decisions in other cases involving lawful permanent residents in which the
DHS opposed administrative closure.

Mr. Cantu Delgadillo challenged the retroactive applicability of the stop time rule, as well as the fact that time did not begin to re-accrue after the date it initially stopped. The Fifth Circuit found that the BIA had properly held that time did not re-accrue and that the stop time rule could be applied retroactively.

Cantu –Delgadillo v. Holder, No. 08-60122 (5th Cir. Oct. 1, 2009)

Mr. Cantu-Delgadillo is a citizen of Mexico who became an LPR in 1978. In 1996 he was convicted of possession of a controlled substance and was given deferred adjudication in Texas and 10 years probation.

He has a complex procedural history. He was placed in deportation proceedings and charged with a controlled substance violation and aggravated felony. Subsequently, the IJ found deportability on all charges, ordered deportation and found him ineligible for relief. The BIA affirmed but found he was deportable for the controlled substance violation, but not as an aggravated felon. 

In 1998, the BIA administrative closed his case for “repapering” a procedure available to certain lawful permanent residents. In 2001 an NTA was issued and he was ordered removed and the BIA affirmed on grounds that he had a controlled substance violation and that he was an aggravated felon. He was found ineligible for relief, including §212(c) relief. Mr. Cantu-Delgadillo filed a federal habeas corpus petition which was consolidated with other habeas petitions challenging the BIA’s findings. The Fifth Circuit dismissed the petitions and affirmed the BIA’s findings. Subsequently, the U.S. Supreme Court vacated the habeas and remanded in light of Lopez v. Gonzalez. The Fifth Circuit then remanded to the BIA in consideration of the findings in Lopez. 

On remand, DHS withdrew its aggravated felony charge. Mr. Cantu-Delgadillo asked that his case be administrative closure to wait for “repapering” regulations. DHS opposed administrative closure. The BIA found that it could not administratively close the case unless there was agreement by both parties.

The Fifth Circuit found that Mr. Cantu Delgadillo did not meet his burden tot establish a substantive due process violation. The Court reaffirmed broad Congressional powers over immigration and found that Mr. Cantu Delgadillo did not have a fundamental liberty interest to remain in the United States with his family. The Court also found that his Equal Protection argument failed because Cantu-Delgadillo has failed to show that the BIA’s decision regarding administrative closure in his case was different from the
BIA’s decisions in other cases involving lawful permanent residents in which the
DHS opposed administrative closure.

Mr. Cantu Delgadillo challenged the retroactive applicability of the stop time rule, as well as the fact that time did not begin to re-accrue after the date it initially stopped. The Fifth Circuit found that the BIA had properly held that time did not re-accrue and that the stop time rule could be applied retroactively.

Mushtaq v. Holder, No. 08-60277 (5th Cir. 9/23/2009)
Reavley, Smith, and Dennis

Mushtaq derived citizenship, at age 9, from his father who obtained citizenship through marriage to a U.S. citizen.  Mushtaq’s application falsely stated that her mother died in 1985. At age 15, Mushtaq filed an application for her husband inaccurately stating that her mother died in 1985. Mushtaq’s father eventually divorced his USC wife and married Mushtaq’s biological mother who entered the US using a false name. Mushtaq’s parents eventually plead guilty to conspiracy and naturalization fraud and had their citizenship revoked.  Mushtaq was placed in removal proceedings to revoke her citizenship. Mushtaq sought a §212(k) waiver on the ground that she did not know of her inadmissibility.

Although both parties asked for Chevron deference, the 5th Circuit reviewed the decision under the less-deferential Skidmore standard as the BIA affirmed the IJ’s order in an unpublished, single-judge decision. However, it stated that Mushtaq’s claim would fail under either standard.

Section 212(k) states as follows:
Any alien, inadmissible from the United States under paragraph
(5)(A) or (7)(A)(i) of subsection (a) of this section, who is in possession
of an immigrant visa may, if otherwise admissible, be admitted
in the discretion of the Attorney General if the Attorney General is
satisfied that inadmissibility was not known to, and could not have
been ascertained by the exercise of reasonable diligence by, the immigrant

Mushtaq claims she could not have known about her inadmissibility as she was a minor. The Court relied on several cases including Senica v. INS, 16 F.3d 1013, 1015 (9th Cir. 1994) where the court imputed the knowledge of a parent to a child for purposes of §212(k). It also looked at Matter of Zamora, 17 I&N Dec. 395 (1980) where the parents returned to Mexico after the child was an LPR and after abandoning their status, the child tried to re-enter and was excluded.

Although Mushtaq argued that Matter of D-C-, 7 I&N Dec. 5257 (1957) applied, the Court was not persuaded.  In Matter of D-C-, supra, the minors did not know that their entry into the US was illegal. The Court admitted that the facts in Matter of D-C- were similar to Mushtaq’s case, the Court found that because imputation was not argued, the case was not binding.

The Court also dismissed Mushtaq’s arguments citing to Singh v. Gonzales, 451 F.3d 400, 409-10 (6th Cir. 2006) where the court found that fraudulent behavior of the parents could not be imputed upon the child.  However, the Court agreed with the 6th Circuit in distinguishing the imputation of fraud from the imputation of knowledge of inadmissibility.

The Court found that although Mushtaq cited to Supreme Court cases finding that parental knowledge cannot be imputed upon a minor child, the cases did were not immigration law cases and thus not helpful.

Mushtaq’s petition for review was denied.

Read the decision here:
http://www.ca5.uscourts.gov/opinions/pub/08/08-60277-CV0.wpd.pdf

Ovalles v. Holder (5th Cir. 7/27/09)

Garwood, Owen, Haynes (Per Curiam)

The Petitioner in this case was placed in removal proceedings in 2003 on the basis of a single conviction for attempted possession of a controlled substance.  The IJ found him removable, but granted cancellation.  On appeal, the BIA found that the offense was an agg. felony, and ordered the Petitioner removed. No appeal from this decision was filed, and the Petitioner was removed to the Dominican Republic.

Two years later, the Supreme Court decided Lopez v. Gonzales, under which Petitioner’s crime was not an agg. felony.  A few months afterward, Petitioner filed a Motion to Reopen or Reconsider Sua Sponte.  The BIA denied the motion based on the 8 C.F.R. § 1003.2(d), which bars motions to reopen after the alien has left the Unite States.  In this appeal, the Petitioner raised a host of challenges to § 1003.2(d), all of which the Fifth Circuit shot down.

First, the Petitioner argued that the regulation was ultra vires, since INA §§ 240(c)(6)(A) and (7)(A) unambiguously provides an alien with one opportunity to reconsider or reopen a case. The Court engaged in a lengthy summary of the general issue. It then sidestepped the issue by deciding the Petitioner couldn’t invoke §§ 240(c)(6)(A) or (7)(A), since he was over the 30 and 90 day time limits specified in those sections – even if the period had been tolled until Lopez v. Gonzales was decided.

Second, the Petitioner argued that the post-departure bar was trumped by 8 C.F.R. § 1003.2(a), which gives the BIA sua sponte authority to reopen or reconsider cases. This argument was already foreclosed by Navarro-Miranda, 330 F.3d 672 (5th Cir. 2003), in which the Court had upheld the BIA’s interpretation of § 1003.2(a) as not encompassing § 1003.2(d).

Third, the Petitioner argued that the BIA has acted arbitrarily and capriciously in applying § 1003.2(d) to him.  He cited a slew of cases overturning the post-departure appeals bar under 8 U.S.C. § 1105a(c) (repealed 1996), but the Fifth Circuit had already rejected this line of cases in Quezada v. INS, 898 F.2d 474 (5th Cir. 1990).

Fourth, the Petitioner asserted that § 1003.2(d) didn’t apply to his case, since the statute is phrased in the present tense: “…a person who is the subject of deportation proceedings subsequent to his departure.”  Since he no longer “is” subject to removal proceedings, he argued the bar shouldn’t apply to him.  Or at least, the bar should only to apply to people who depart while removal proceedings are pending – an argument which the Ninth Circuit has adopted. Lin v. Gonzalez, 473 F.3d 979 (9th Cir. 2007).  The Court however found the former reading of § 1003.2(d) illogical, since nobody who “is” the subject of removal proceedings can file a motion to reopen or reconsider.  And the latter interpretation is inconsistent with Navarro-Miranda.

Finally, the Petitioner invoked due process – the last refuge of the scoundrel.  The Court acknowledged that aliens in removal proceedings do have due process rights, Landon v. Plasencia, but found these rights did not extend to the Petitioner’s situation, since he had already departed and received a fair hearing on the merits. A change in law does not create a constitutional right to reopen one’s removal proceedings.  The Government’s interest in finality outweighs whatever liberty interest the Petitioner had in returning to the U.S.

Read the Opinion Here