Balam-Chuc v. Mukasey (9th Cir., 10/24/08, No. 06-72887)
BYBEE, Nelson, Hawkins
Petitioner, a Mexican citizen, married a U.S. citizen in May 2000 and his wife hired a law firm in March 2001 to file an IR petition before the expiration of 245(i) on April 30, 2001. Mindful of the deadline she provided the law firm everything needed, including the signed forms and filing fees, by the end of March and followed up with a phone call on March 30th; she was assured that the IR petition would be timely filed. The date of the filing of the petition was disputed, the law firm arguing it was filed on or before the April 30th deadline, but the INS receipt date was June 13, 2001.
Petitioner was placed in proceedings. Petitioner conceded removability in proceedings, but argued that the petition was timely filed or, alternatively, that the April 30th deadline should be tolled due to ineffective assistance of counsel. The IJ ruled the petition was not timely filed and that the 245(i) deadline was a statute of repose and not a statute of limitations and thus not subject to equitable tolling for IAC. Petitioner appealed to the BIA requesting the BIA adjudicate the IR petition nunc pro tunc or find 245(i) a statute of limitations subject to equitable tolling. The BIA held that the deadline was a statute of repose not subject to tolling and that neither the IJ nor the BIA had authority to adjudicate the IR petition.
The 9th Cir. held:
1. 245(i) is a statute of repose and not a statute of limitations and thus not subject to equitable tolling. The court explained the difference:
“Statutes of limitation are primarily designed to assure fairness to defendants and to promote the theory that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Albillo-De Leon, 410 F.3d at 1095 (internal quotations and citations omitted). In essence, “such limitations relieve courts of the burden of adjudicating stale claims when a plaintiff has slept on his rights.” Id. On the other hand, a statute of repose is a “fixed, statutory cutoff date, usually independent of any variable, such as claimant’s awareness of a violation.” Munoz, 339 F.3d at 957.
“A statute of repose cuts off a cause of action at a certain time irrespective of the time of accrual of the cause of action.” Weddel v. Sec’y of Health & Human Servs., 100 F.3d 929, 931 (9th Cir. 1996). Perhaps the most distinguishing characteristic of a statute of repose is that it establishes “an outer date for bringing an action” instead of a variable period of time during which a plaintiff must assert her claim. Id. Thus, we have noted that statutes of repose act “ ‘as the endpoint of the definite time period in which Congress would permit a specific class of potential annuitants to file applications,’ ” which function “ ‘as a condition defining and closing the class.’ ” Id. (quoting Iacono v. Office of Pers. Mgmt., 974 F.2d 1326, 1328 (Fed. Cir. 1992))."
2. The alleged ineffective assistance of counsel in not timely filing the IR petition did not violate 5th Amendement Due Process because "due process rights to assistance of counsel do not extend beyond the fairness of the hearing itself. Lara-Torres v. Ashcroft, 383 F.3d 968, 973-76 (9th Cir. 2004)." In this case the alleged IAC occurred well before any IJ hearing and thus no due process right was involved.
(MH - The 9th Cir. ended its decision with a plea to the government to reach a principled, rational decision noting that requiring petitioner to leave the U.S. for consular processing would serve no useful purpose, and was contradictory to the intent of the statute's goal of family unity, but would be extremely hard on petitioner, his wife, and their two small U.S. citizen children. The court urged the government to find a way to allow the IR petition to be adjudicated within the U.S.).
Shin v. Mukasey (9th Cir., 10/23/08, No.s 06-71955 and 06-74052)
BEA, Nelson, Oberdorfer
Petitioner was a South Korean citizen who came to the U.S. on a tourist visa. She thereafter bought a LPR card from a "runner" for a corrupt INS officer; the card was based on her allegedly being the spouse of a skilled worker or professional with a college degree. At the time she purchased the card she was divorced and her ex-husband, who had never been in the U.S., had a high school degree. Petitioner maintained she did not know the card was fraudulent until she read about the indictment of the INS officer in 2000.
At her IJ hearing she admitted she did not have valid immigration documents but denied she had stayed longer than authorized; she did not apply for any type of relief. The IJ ruled her removable while declining to address her equitable estoppel argument against the government due to the government's not having "clean hands." The BIA affirmed. Petitioner then filed a MTR to adjust status, but did not submit the required documentation so her MTR was denied.
The 9th Cir. held:
1. It had jurisdiction over petitioner's equitable estoppel claim because it arose from actions taken before the commencement of proceedings. Wong v. U.S., 373 F.3d 952, 965 (9th Cir. 2004).
2. The government met its initial burden of proving petitioner removable by clear and convincing evidence based on counsel's conceding removability at the IJ hearing.
3. There was no D.P. violation in the admission of the deposition testimony of the corrupt INS agent because: (a) petitioner’s counsel participated in the corrupt agent's deposition and was allowed to cross-examine him; (b) petitioner had the benefit of hearing and comparing the agent's responses to other attorneys’ questions; (c) during each alien’s hearing, the agent was made available if additional testimony was needed; and, (d) petitioner was given an individual hearing before an IJ where any defenses or claims for relief were heard.
4. The government here was not equitably estopped from pursuing removal because petitioner was not an innocent dupe - she knew her receiving the LPR card was based on fraud.
5. Petitioner was not eligible for a second MTR because she had failed to file the required proofs of eligible relief and there is a limit of one MTR under 8 C.F.R. § 1003.2(c)(2).
Estrada-Espinoza v. Mukasey (9th Cir., 10/20/08, No. 05-75850)
En Banc: THOMAS
Using the Taylor categorical approach the 9th Cir. held that none of Petitioner's convictions under California statutory rape penal code §§ 261.5(c), 286(b)(1), 288a(b)(1), and 289(h) constituted an aggravated felony as "sexual abuse of a minor." The court determined that each of the state penal code sections Petitioner was convicted under were categorically broader than the federal crime of sexual abuse of a minor, 18 U.S.C. § 2243, and therefore none of them constituted sexual abuse of a minor and an aggravated felony for immigration purposes.
The petitioner here was an LPR who had met a young woman of 15 or 16 and later lived together with and had a child. Petitioner had actually moved in and lived with the minor in her parents home and later the two lived in their own residence.
After analyzing analogous state statutes the court here felt that it was important to note that older adolescents are treated differently under most state laws as far as consensual sexual relations and make decisions about the risks faced in having those relations.
The 9th Cir. overruled Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006), and declined to give Chevron deference to the BIA decision here because it was a "one-judge, non-precedential, unpublished BIA order."
The 9th Cir. likewise declined to give Chevron deference to an earlier BIA decision since Rodriguez-Rodriguez, 22 I & N Dec. 991, 996 (BIA 1999) did not involve construing the statute and providing a uniform definition, but rather was an advisory guideline for future case-by-case interpretation of what was an offense constituting sexual abuse of a minor. The 9th Cir. stated that: "The Supreme Court has instructed that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law —do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587 (2000)."
Orozco v. Mukasey (9th Cir., 10/20/08, No. 06-75021)
Wardlaw, Bea, N. Randy Smith
ORDER
The Joint Motion to Vacate and Motion to Dismiss Voluntarily is hereby GRANTED. The published opinion in Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), is hereby vacated. The case is also hereby dismissed pursuant to Federal Rule of Civil Procedure Rule 42(b). This order served on the agency shall, 21 days after the date of this order, become the mandate of this court.
The 9th Cir found that an entry by fraud is not a "lawful entry," and thus not an "admission" under 101(a)(13), and thus the person is not eligible to adjust status under INA 245(a) - distinguishing Matter of Areguillin, 17 I. & N. Dec. 308 (BIA 1980) (where someone inspected and authorized, could adjust status under 245(a)).
Sanchez v. Mukasey (9th Cir., 10/9/08, No. 04-75584)
KOZINSKI, Chief Judge
"Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."
The 9th Cir found that smuggling one's own spouse - which triggers inadmissibility under 212(a)(6)(E) - does not bar good moral character because it is waivable by 212(d)(11). It found that the analysis at Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), was not dicta, and thus, controlled. Wallace, writing separately, agrees that Moran probably governs, but thinks that it was wrongly decided and should be reheard en banc.
Ninth Circuit 
