Cancellation of removal

Cancellation of removal is a provision of the Immigration and Nationality Act (INA) of the United States that allows some aliens who are in removal proceedings, who have lived in the United States for a long period of time and meet certain other conditions, to apply to remain in the United States and have the removal proceedings terminated.[1] Cancellation of removal was crafted by the U.S. Congress to replace "suspension of deportation," a similar form of relief available prior to April 1, 1997.[2]

Cancellation of removal is potentially available to both lawful permanent residents (LPRs) and other aliens who do not have LPR status, but the criteria for non-LPRs to qualify are much stricter. A non-LPR who is granted cancellation of removal becomes an LPR.[3]

Background
Further information: Immigration and Nationality Act of 1952 and Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The term "Attorney General" in the INA refers to an immigration judge, a member of the Board of Immigration Appeals (BIA), and the Attorney General himself. "The term 'alien' means any person not a citizen or national of the United States."[4] The terms "inadmissible aliens" and "deportable aliens" are synonymous,[5] which mainly refer to the INA violators among the 75 million foreign nationals who are admitted each year as guests,[6][7] the 12 million or so illegal aliens,[8] and the INA violators among the 300,000 or more foreign nationals who possess the temporary protected status (TPS).[9][10]

"Only aliens are subject to removal."[11] "The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States...."[12][13][14] A longtime LPR can either be an American or an alien but not a foreign national, which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has physically spent in the United States as a green card holder (legal immigrant).[15][16][17]

U.S. Presidents and the U.S. Congress have expressly favored some "legal immigrants"[18] because they were admitted to the United States as refugees,[19][20][21] i.e., people who escaped from genocides and have absolutely no safe country of permanent residence other than the United States.[22] Removing such protected people from the United States constitutes a grave international crime. In this regard, U.S. President Bill Clinton had issued an important 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).[18][23]

Prior to April 1, 1997, the effective date of IIRIRA, a legal remedy known as "suspension of deportation" was available to aliens in deportation proceedings.[2] Although functionally similar to cancellation of removal, suspension of deportation did not distinguish between "permanent residents" of the United States and "nonpermanent residents." To obtain suspension of deportation, an applicant under the pre-IIRIRA standard was required to fulfill the following: (1) continuous physical presence in the United States for a period of at least seven years; (2) "good moral character" during that entire period; and (3) that the applicant's deportation from the United States would result in "extreme hardship" to the applicant or any qualifying relative, which was mainly the applicant's spouse, parents, or children, who were either citizens or LPRs of the United States. After these three requirements were met, the LPR was granted relief irrespective of his or her age, health, race, color, religion, nationality, political affiliation, political opinion, etc.[19][20]

Approval standard for cancellation of removal as of April 1997

Lawful permanent residents of the United States
Further information: Americans and lawful permanent residents (United States)
Sample of a permanent resident card (green card), which lawfully permits its holder to live and work in the United States similar to that of all other Americans. Before any legal immigrant is naturalized as a U.S. citizen, he or she must be a green card holder for at least 5 years and satisfy all other U.S. citizenship requirements.[14][24][25]

An LPR (green card holder), especially one who was admitted as a refugee under 8 U.S.C. § 1157(c),[26][19][27][20][21] is fully protected by the Constitution and laws of the United States against every form of illegal deportation.[15][28][29][18] An LPR may only be placed in removal proceedings after suffering a conviction that clearly renders him or her "removable" from the United States.[5][30][31]

Removal proceedings may be initiated against an LPR for other reasons, such as voluntarily abandoning or relinquishing permanent resident status, staying outside the United States for more than six months unless exceptional circumstances are shown, engaging in illegal activity outside the United States, etc.[15] In such situations, the LPR takes risks of becoming inadmissible to the United States.[5][31]

A longtime LPR convicted of any aggravated felony is statutorily entitled to cancellation of removal and a waiver of inadmissibility unless if his or her "term of imprisonment was completed within the previous 15 years."[32][33][34][35] This 15-year passage of time, however, positively does not apply to any such LPR who was admitted to the United States as a refugee under 8 U.S.C. § 1157(c).[19][27][20][21][26] In this regard, the INA states the following:

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable . . . if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.[1]

According to the BIA, "cancellation of removal is both discretionary and prospective in nature."[36][21] For purposes of judicial review, however, it does not qualify as a "decision or action of the Attorney General ... the authority for which is specified ... to be in the discretion of the Attorney General."[37] The term "discretion" is intentionally not even mentioned in the entire 8 U.S.C. § 1229b, except in only one isolated place but that subparagraph is completely unrelated to the legal remedy created here specifically for longtime LPRs.[38]

Whenever the three requirements in the above quoted INA provision are met, the longtime LPR must be granted cancellation of removal, irrespective of his or her physical location,[39][15] age, health, race, color, religion, nationality, political affiliation, political opinion, etc.[19][20] Anything to the contrary will result in "deprivation of rights under color of law," which is a federal crime that entails, inter alia, capital punishment for immigration officials "and others who are acting as public officials."[28][29][18][40][41][42]

Refugees, especially those that have been firmly resettled in the United States, may be granted cancellation of removal or a waiver of inadmissibility at any time, even if they have been convicted of particularly serious crimes.[26][20][19][5][21] In addition to that, the U.S. courts of appeals have reaffirmed that the "stop-time rule" for cancellation and inadmissibility purposes statutorily does not apply to those who committed a non-aggravated felony offense before April 1997,[31] especially a firearm violation that merely constitutes 8 U.S.C. § 1227(a)(2)(C), which the BIA had pointed out in a 2000 en banc decision.[15][21]

Deportation from the United States is not a criminal procedure. Under 8 C.F.R. 239.2, any officer mentioned in 8 C.F.R. 239.1 may at any time move to: (1) terminate the removal proceedings of any person who turns out to be an American;[17][43][16] or (2) cancel the removal proceedings of anyone who is clearly not removable under the INA. As explained above, the term "removable" in the INA explicitly refers to both inadmissible aliens and deportable aliens.[5] "Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, ... or where the [Department of Homeland Security (DHS)] fails to sustain the charges of removability against a respondent[.]"[44][45][21]

Nonpermanent residents
Further information: Foreign national

Regarding a nonpermanent resident, the Attorney General is expected to cancel the removal proceedings (and adjust the status of such alien to that of an LPR) if the alien:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.[3]

Like explained above, offenses committed before April 1997 (except aggravated felonies) do not stop the alien's 10 years of physical and continuous period,[31] and a decision here does not qualify as a "decision or action of the Attorney General ... the authority for which is specified ... to be in the discretion of the Attorney General."[37] Every alien who fulfills the above requirements element-by-element is statutorily entitled to cancellation of removal and adjustment of status. Every denial here is subject to a full judicial review. See below.

Judicial review
Further information: Petition for review and certiorari
Inside the U.S. Supreme Court, which is where people in removal proceedings sometimes end up.

"Judicial review of a final order of removal ... is governed only by [the Hobbs Act (28 U.S.C. §§ 2341-2351 et seq.)],[46][47] according to 8 U.S.C. § 1252, which is titled: "Judicial review of orders of removal." There, Congress expressly states that no court shall review "any judgment regarding the granting of" cancellation of removal.[48] Congress intentionally avoided using any term that is contrary to granting. This plainly and unambiguously means that once any immigration judge "grants" cancellation of removal to any person and is affirmed by at least one BIA member, there shall be no review of that judgment by any court unless some kind of a legal error is shown.[49]

This legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant."[34] Under the well known Chevron doctrine, "[i]f the intent of Congress is clear, that is the end of the matter, for the court as well as the [Attorney General] must give effect to the unambiguously expressed intent of Congress."[50]

Regarding decisions in which the Attorney General denies cancellation of removal, especially to longtime LPRs, federal courts are fully empowered to review them, including "findings of fact" and claims of United States nationality or miscarriage of justice.[51][16][17][52][53][54][43] Also, just like there is no statute of limitations for visas, citizenship, and other immigration purposes, there is no statute of limitations in removal proceedings, especially in cases involving exceptional circumstances.[32] Such particular cases can be reopened at any time and from anywhere in the world.[55][52][56][27] Moreover, the courts are fully empowered by federal statutes to grant injunctive relief in particular cases.[57] "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers."[58]

The courts, however, are commanded by 8 U.S.C. §§ 1252(b)(4) and 1252(f)(2) to not help any alien "unless the alien shows by clear and convincing evidence that" his or her deportation from the United States "is prohibited as a matter of law." This is mainly to prevent miscarriages of justice, lawsuits against the United States, and unnecessary remands.[54] To fulfill the requirements of §§ 1252(b)(4) and 1252(f)(2), all a person needs to do is show any of the following: U.S. birth certificate, U.S. passport (even if expired), a permanent resident card (green card), etc.,[59] along with a written legal argument explaining, e.g., that he or she is (in fact) an American and belongs in the United States "as a matter of law."[16][15][52][27] The court has no other choice but grant the requested injunction in such situation.[17]

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See also

References

This article in most part is based on law of the United States, including statutory and latest published case law.

  1. INA § 240A(a), 8 U.S.C. § 1229b(a)
  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.").
  3. INA § 240A(b), 8 U.S.C. § 1229b(b) ("Cancellation of removal and adjustment of status for certain nonpermanent residents").
  4. 8 U.S.C. § 1101(a)(3) (emphasis added); see also 8 U.S.C. § 1101(a)(22) ("The term 'national of the United States' means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.") (emphasis added); Jennings v. Rodriguez, 138 S.Ct. 830, 855-56 (2018) (Justice Thomas concurring) ("The term 'or' is almost always disjunctive, that is, the [phrase]s it connects are to be given separate meanings.").
  5. 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. Att'y Gen., 903 F.3d 272, 277 (3d Cir. 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."); Galindo v. Sessions, 897 F.3d 894, 897 (7th Cir. 2018).
  6. "Destination USA: 75 million international guests visited in 2014". share.america.gov. Retrieved 2018-09-30.
  7. "International Visitation to the United States: A Statistical Summary of U.S. Visitation" (PDF). U.S. Department of Commerce. 2015. p. 2. Retrieved 2018-09-30.
  8. 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
  9. Meagan Flynn, ed. (October 4, 2018). "Federal judge, citing Trump racial bias, says administration can't strip legal status from 300,000 Haitians, Salvadorans and others — for now". The Washington Post. Retrieved 2019-02-23.
  10. 8 U.S.C. § 1254a(f) ("Benefits and status during period of temporary protected status"); see also Melissa Etehad, ed. (July 19, 2018). "The Trump administration wants more than 400,000 people to leave the U.S. Here's who they are and why". Chicago Tribune. Retrieved July 21, 2018.
  11. Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003).
  12. 8 U.S.C. § 1101(a)(20)
  13. "Green Card". U.S. Citizenship and Immigration Services (USCIS). February 22, 2018. Retrieved 2018-10-17.
  14. "Estimates of the Lawful Permanent Resident Population in the United States: January 2014" (PDF). James Lee; Bryan Baker. U.S. Dept. of Homeland Security (DHS). June 2017. Retrieved 2018-11-21.
  15. 8 U.S.C. § 1101(a)(13)(C)(v) (stating that an LPR, especially a wrongfully deported LPR, is permitted to reenter the United States by any means whatsoever, including with a grant of "relief under section 1182(h) or 1229b(a) of this title....") (emphasis added); accord United States v. Aguilera-Rios, 769 F.3d 626, 628-29 (9th Cir. 2014) ("[Petitioner] was convicted of a California firearms offense, removed from the United States on the basis of that conviction, and, when he returned to the country, tried and convicted of illegal reentry under 8 U.S.C. § 1326. He contends that his prior removal order was invalid because his conviction ... was not a categorical match for the Immigration and Nationality Act's ('INA') firearms offense. We agree that he was not originally removable as charged, and so could not be convicted of illegal reentry."); see also Centurion v. Sessions, 860 F.3d 69, 75-76 (2d Cir. 2017); Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc) (A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one 'referred to in section 212(a)(2)' and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.").
  16. Ricketts v. Att'y Gen., 897 F.3d 491 (3d Cir. 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."); 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of [United States nationality] upon a person after birth, by any means whatsoever.") (emphasis added); 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...."); 22 C.F.R. 51.1 ("U.S. non-citizen national means a person on whom U.S. nationality, but not U.S. citizenship, has been conferred at birth under 8 U.S.C. 1408, or under other law or treaty, and who has not subsequently lost such non-citizen nationality."); 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.'").
  17. Khalid v. Sessions, 904 F.3d 129, 131 (2d Cir. 2018) ("[Petitioner] is a U.S. citizen and the Department of Homeland Security (DHS) must terminate removal proceedings against him."); see also Jaen v. Sessions, 899 F.3d 182, 190 (2d Cir. 2018) (case involving an American in removal proceedings); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); Dent v. Sessions, 900 F.3d 1075, 1080 (9th Cir. 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); Yith v. Nielsen, 881 F.3d 1155, 1159 (9th Cir. 2018) ("Once applicants have exhausted administrative remedies, they may appeal to a district court."); Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1270 (10th Cir. 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); Brandao v. Att'y Gen., 654 F.3d 427 (3d Cir. 2011).
  18. "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved July 16, 2018. See also Zuniga-Perez v. Sessions, 897 F.3d 114, 122 (2d Cir. 2018) ("The Constitution protects both citizens and non‐citizens.") (emphasis added).
  19. Matter of H-N-, 22 I&N Dec. 1039, 1040-45 (BIA 1999) (en banc) (case of a female Cambodian-American who was convicted of a particularly serious crime but "the Immigration Judge found [her] eligible for a waiver of inadmissibility, as well as for adjustment of status, and he granted her this relief from removal."); Matter of Jean, 23 I&N Dec. 373, 381 (A.G. 2002) ("Aliens, like the respondent, who have been admitted (or conditionally admitted) into the United States as refugees can seek an adjustment of status only under INA § 209."); INA § 209(c), 8 U.S.C. § 1159(c) ("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] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.") (emphasis added); Nguyen v. Chertoff, 501 F.3d 107, 109-10 (2d Cir. 2007) (petition granted of a Vietnamese-American convicted of a particularly serious crime); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) ("The Equal Protection Clause of the Fourteenth Amendment commands that ... all persons similarly situated should be treated alike.").
  20. 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); see also De Leon v. Lynch, 808 F.3d 1224, 1232 (10th Cir. 2015) ("[Petitioner] 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.") (emphasis added).
  21. "Board of Immigration Appeals". U.S. Dept. of Justice. March 16, 2018. Retrieved 2018-11-21. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. See also 8 C.F.R. 1003.1(g) ("Decisions as precedents.") (eff. 2018); Citizens United v. FEC, 558 U.S. 310, 362 (2010) ("Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error."); Al-Sharif v. United States Citizenship and Immigration Services, 734 F.3d 207, 212 (3d Cir. 2013) (en banc) (same); Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (same).
  22. See, e.g., Matter of Izatula, 20 I&N Dec. 149, 154 (BIA 1990) ("Afghanistan is a totalitarian state under the control of the [People's Democratic Party of Afghanistan], which is kept in power by the Soviet Union."); Matter of B-, 21 I&N Dec. 66, 72 (BIA 1995) (en banc) ("We further find, however, that the past persecution suffered by the applicant was so severe that his asylum application should be granted notwithstanding the change of circumstances.").
  23. Dessouki v. Attorney General of the U.S., ___ F.3d ___, ___, No. 17-3131, pp. 5-6 (3d Cir. 2019) ("To begin, the word 'shall' imposes a mandatory requirement."); Alabama v. Bozeman, 533 U.S. 146, 153 (2001).
  24. Stanton, Ryan (May 11, 2018). "Michigan father of 4 was nearly deported; now he's a U.S. citizen". www.mlive.com. Retrieved 2018-11-21.
  25. Sakuma, Amanda (October 24, 2014). "Lawsuit says ICE attorney forged document to deport immigrant man". MSNBC. Retrieved 2018-11-21.
  26. 8 U.S.C. § 1101(a)(42) ("The term 'refugee' means ... 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).
  27. 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, at 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 review an unopposed United States nationality claim under 8 U.S.C. §§ 1252(b)(5) and 1252(f)(2) 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. Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ___, ___, 138 S.Ct. 13, 17-18 (2017) ("Mandatory claim-processing rules ... may be waived or forfeited."); 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.") (brackets omitted); 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.").
  28. "Deprivation Of Rights Under Color Of Law". U.S. Department of Justice. August 6, 2015. Retrieved August 17, 2018. 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 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).
  29. 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. Acosta, 470 F.3d 132, 136 (2d Cir. 2006); United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990) (U.S. immigration officers kidnapped, robbed and murdered a visiting foreign businessman); United States v. Otherson, 637 F.2d 1276 (9th Cir. 1980), cert. denied, 454 U.S. 840 (1981), (U.S. immigration officer convicted of serious federal crimes); see also 42 U.S.C. §§ 1981–1985 et seq.; Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018) ("A U.S. Border Patrol agent standing on American soil shot and killed a teenage Mexican citizen who was walking down a street in Mexico."); Ziglar v. Abbasi, 582 U.S. ___ (2017) (mistreating immigration detainees); Hope v. Pelzer, 536 U.S. 730, 736-37 (2002) (mistreating prisoners).
  30. 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.'") (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) ("In fact, this conviction may support a finding of deportability ... but only if the record contains clear, unequivocal, and convincing proof ...."); Mondaca-Vega v. Lynch, 808 F.3d 413, 417 (9th Cir. 2015) (en banc); Ward v. Holder, 733 F.3d 601, 604–05 (6th Cir. 2013); United States v. Thompson-Riviere, 561 F.3d 345, 349 (4th Cir. 2009) ("To convict him of this offense, the government bore the burden of proving beyond a reasonable doubt that (inter alia) he is an 'alien,' which means he is 'not a citizen or national of the United States,'" (citations omitted) (emphasis added); Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006); Berenyi v. Immigration Director, 385 U.S. 630, 636-37 (1967) ("When the Government seeks to strip a person of [United States 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).
  31. Centurion v. Sessions, 860 F.3d 69, 75-76 (2d Cir. 2017) ("We have repeatedly held that 'the date of the commission of the offense[,]' not the date of conviction, triggers the stop–time rule."); Santos-Reyes v. Att'y Gen., 660 F.3d 196, 198 (3d Cir. 2011); Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014); Jeudy v. Holder, 768 F.3d 595, 605 (7th Cir. 2014); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1204 (9th Cir. 2006); 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.").
  32. 8 U.S.C. § 1101(a)(43) ("The term [aggravated felony] applies to an offense described in this paragraph ... and applies to such an offense ... for which the term of imprisonment was completed within the previous 15 years."); Matter of Vasquez-Muniz, 23 I&N Dec. 207, 211 (BIA 2002) (en banc) ("This penultimate sentence, governing the enumeration of crimes in section 101(a)(43) of the Act, refers the reader to all of the crimes 'described in' the aggravated felony provision."); Luna Torres v. Lynch, 578 U.S. ___, ___, 136 S.Ct. 1623, 1627 (2016) ("The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law."); see also 8 C.F.R. 1001.1(t) ("The term aggravated felony means a crime ... described in section 101(a)(43) of the Act. This definition is applicable to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date.") (emphasis added).
  33. Zivkovic v. Holder, 724 F.3d 894, 911 (7th Cir. 2013) ("Because [Petitioner]'s aggravated felony convictions were more than a decade old before the 1988 statute took effect, they cannot be used as a ground for removal...."); Ledezma-Galicia v. Holder, 636 F.3d 1059, 1080 (9th Cir. 2010) ("[Petitioner] is not removable by reason of being an aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions, like [Petitioner]'s, that occurred prior to November 18, 1988."); but see Canto v. Holder, 593 F.3d 638, 640-42 (7th Cir. 2010) (good example of absurdity and violation of the U.S. Constitution).
  34. Rubin v. Islamic Republic of Iran, 583 U.S. ___ (2018) (Slip Opinion at 10) (internal quotation marks and brackets omitted); see also Matter of Song, 27 I&N Dec. 488, 492 (BIA 2018) ("Because the language of both the statute and the regulations is plain and unambiguous, we are bound to follow it."); Matter of Figueroa, 25 I&N Dec. 596, 598 (BIA 2011) ("When interpreting statutes and regulations, we look first to the plain meaning of the language and are required to give effect to unambiguously expressed intent. Executive intent is presumed to be expressed by the ordinary meaning of the words used. We also construe a statute or regulation to give effect to all of its provisions.") (citations omitted); Lamie v. United States Trustee, 540 U.S. 526, 534 (2004); 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); United States v. Menasche, 348 U.S. 528, 538-539 (1955) ("It is our duty to give effect, if possible, to every clause and word of a statute." (internal quotation marks omitted); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) ("The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.").
  35. 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); see also 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."); 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).
  36. Matter of Perez, 22 I&N Dec. 689, 691 (BIA 1999) (en banc) (reversed on other grounds).
  37. 8 U.S.C. § 1252(a)(2)(B)(ii); see generally Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011); Alaka v. Att'y Gen., 456 F.3d 88, 95-101 (3d Cir. 2006)
  38. 8 U.S.C. § 1229b(b)(2)(D) ("Credible evidence considered").
  39. See, e.g., Salmoran v. Attorney General of the U.S., ___ F.3d ___, ___, No. 17-2683, p.5 n.5 (3d Cir. 2018) (case involving cancellation of removal after an LPR has been physically removed from the United States based on a bogus aggravated felony charge).
  40. "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved July 15, 2018. [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.
  41. "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. pp. 806–7. Retrieved 2018-09-27. 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).
  42. 18 U.S.C. § 2441 ("War crimes").
  43. "ICE held an American man in custody for 1,273 days. He's not the only one who had to prove his citizenship". Paige St. John and Joel Rubin. Los Angeles Times. September 17, 2018. Retrieved 2018-11-24.
  44. Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) (quoting former Attorney General Jeff Sessions).
  45. Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998) (en banc).
  46. "ORDERS OF FEDERAL AGENCIES; REVIEW". United States Congress. Legal Information Institute. Retrieved 2018-12-01.
  47. Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir. 2002).
  48. 8 U.S.C. § 1252(a)(2)(B) (emphasis added); see also Nken v. Holder, 556 U.S. 418, 431 (2009) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. This is particularly true here, where subsections ([a])([2])(B) and (f)(2) were enacted as part of a unified overhaul of judicial review procedures.") (internal quotation marks omitted).
  49. See generally Ku v. Att'y Gen., ___ F.3d ___, ___, No. 17-3001, pp.7-8 n.3 (3d Cir. Jan. 3, 2019); Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) ("We have jurisdiction to determine our own jurisdiction."); Alimbaev v. Att'y, 872 F.3d 188, 194 (3d Cir. 2017) (same); Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1253 (2015) ("An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U.S.C. § 1229a(c)(7)(A). If immigration officials deny that motion, a federal court of appeals has jurisdiction to consider a petition to review their decision. Notwithstanding that rule, the court below declined to take jurisdiction over such an appeal because the motion to reopen had been denied as untimely. We hold that was error.") (citation omitted) (emphasis added); Kucana v. Holder, 558 U.S. 233, 242 (2010) ("The motion to reopen is an 'important safeguard' intended 'to ensure a proper and lawful disposition' of immigration proceedings.").
  50. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
  51. 8 U.S.C. § 1252(b)
  52. 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, 887 F.3d 290, 294 (6th Cir. 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) (emphasis added); 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) (collecting cases); Pacheco-Miranda v. Sessions, No. 14-70296 (9th Cir. Aug. 11, 2017) (same).
  53. Finnegan, William (April 29, 2013). "The Deportation Machine". The New Yorker. Retrieved 2018-10-14. A citizen trapped in the system.
  54. Stevens, Jacqueline (June 2, 2015). "No Apologies, But Feds Pay $350K to Deported American Citizen". LexisNexis. Retrieved 2018-11-24.
  55. Avalos-Suarez v. Whitaker, No. 16-72773 (9th Cir. Nov. 16, 2018) (case remanded to the BIA, which involves the review of a 1993 deportation order) (unpublished).
  56. See generally Toor v. Lynch, 789 F.3d 1055, 1064-65 (9th Cir. 2015) ("The regulatory departure bar [(8 C.F.R. 1003.2(d))] is invalid irrespective of the manner in which the movant departed the United States, as it conflicts with clear and unambiguous statutory text.") (collecting cases); see also Blandino-Medina v. Holder, 712 F.3d 1338, 1342 (9th Cir. 2013) ("An individual who has already been removed can satisfy the case-or-controversy requirement by raising a direct challenge to the removal order."); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006) (same); Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (same); Zegarra-Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003) (holding that because petitioner's inability to return to the United States for twenty years as a result of his removal was "a concrete disadvantage imposed as a matter of law, the fact of his deportation did not render the pending habeas petition moot").
  57. Kontrick v. Ryan, 540 U.S. 443, 452 (2004) ("Only Congress may determine a lower federal court's subject-matter jurisdiction."); 28 U.S.C. § 2342 ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of" a "final order of removal" under 8 U.S.C. § 1252) (emphasis added); see also 8 U.S.C. § 1326(d) ("Limitation on collateral attack on underlying deportation order"); 8 U.S.C. § 1252(f) ("Limit on injunctive relief"); 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."); 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); Alli v. Decker, 650 F.3d 1007, 1010-11 (3d Cir. 2011) (same); Nken v. Holder, 556 U.S. 418, 443 (2009) (Justice Alito dissenting with Justice Thomas) ("We should not lightly conclude that Congress enacted a provision that serves no function, and the Court's hyper-technical distinction between an injunction and a stay does not provide a sufficient justification for adopting an interpretation that renders § 1252(f)(2) meaningless. That result is particularly anomalous in the context of § 1252(f)(2), which Congress said should apply '[n]otwithstanding any other provision of law.'").
  58. Nken v. Holder, 556 U.S. 418, 428 (2009) (citation and internal quotation marks omitted).
  59. 8 U.S.C. § 1229a(c)(2) ("In the proceeding the alien has the burden of establishing—(A) if the alien is an applicant for admission, that the alien is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 1182 of this title; or (B) by clear and convincing evidence, that the alien is lawfully present in the United States pursuant to a prior admission...."); 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); Matter of D-K-, 25 I&N Dec. 761, 765-66 (BIA 2012)
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