Lizama v. Holder: "Young, Americanized, well-off, Salvadoran male deportees with criminal histories who oppose gangs" not a social group for Asylum and Withholding

In Lizama v. Holder the petitioner, Carlos Lizama, sought judicial review of an order of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

Carlos Lizama, a native and citizen of El Salvador, entered the United States in 1992 and was placed in removal proceedings in 2006.  As a defense to removal he petitioned for asylum, withholding of removal, and protection under CAT. The Immigration Judge denied Mr. Lizama's application for relief. He appealed the Immigration Judge's decision to the BIA, which affirmed.  

The U.S. Court of Appeals for the Fourth Circuit dismissed Mr. Lizama's claim for asylum for lack of jurisdiction in that he had not applied for asylum within one year of entry (8 U.S.C. 1158(a)(2)(B)), and reasoned that recently accumulated wealth did not constitute "changed" or "extraordinary" circumstances which excused his failure to file a timely asylum application. The Court also denied Mr. Lizama's petition for review of his withholding of removal under 8 U.S.C. section 1231(b)(3) holding that being a "young, Americanized, well-off Salvadoran male deportee with a criminal history who opposes gangs" did not qualify him for membership in a social group possessing the common, immutable characteristics and recognized level of visibility and particularity required by BIA precedent.  Finally, the court agreed with the Immigration Judge who held that Mr. Lizama did not qualify for CAT protection because he had failed to establish he would "more likely than not" be tortured if removed to El Salvador. 

Cody v. Caterisano: Sorry Sailor - No Money For You. Clarifying the "substantially justified" standard under the Equal Access to Justice Act (EAJA)

The Equal Access to Justice Act (EAJA) allows the recovery of attorney's fees provided the applicant is the prevailing party and can show that the position of the government agency was not "substantially justified".

The recent case of Cody v. Caterisano involves the case of an Irish national serving in the U.S. Navy as a midshipman who petitioned for attorney's fees under the Equal Access to Justice Act arguing that the U.S. Citizenship and Immigration Services (USCIS) failed to adjudicate his naturalization application within 120 days under 8 U.S.C. section 1447(b). 

Mr. Cody had applied for naturalization based on Section 329 of the Immigration and Nationality Act (INA), 8 U.S.C. section 1440, which provides for naturalization through active duty service in the Armed Forces during times of war or periods of military hostilities. Interestingly enough, this case also involved the issue of whether attendance at the U.S. Naval Academy constitutes "active duty" for purposes of naturalization under 8 U.S.C. section 1440.  Although there were some questions as to whether Mr. Cody was in fact in "active duty", he was was able to naturalize after all - albeit with some delays.

To determine whether the Government's position was substantially justified, the U.S. Court of Appeals for the Fourth Circuit considered all aspects of the civil action to determine whether the Government's position was justified to a degree that could satisfy a reasonable person. In affirming the district court's denial of the request for attorneys fees, the court held that the Government's position was substantially justified given the Government's reasonable arguments based on statutory interpretation and analogous cases.  The Court also rejected Mr. Cody's request to remand for the district court to explain its reasoning in denying his request for EAJA fees.   

Crespo v. Holder: Adjudication Under Virginia Code 18.2-251 Not Always a Conviction for Immigration Purposes

In Crespo v. Holder the U.S. Court of Appeals for the Fourth Circuit held Mr. Crespo's adjudication under Virginia Code 18.2-251 did not satisfy any of the five situations that Congress listed in 8 U.S.C. section 1101(a)(48)(A) to satisfy a sufficient finding of guilt to constitute a "conviction" for immigration purposes.

This case involved the case of Franklin Eduardo Crespo, a Peruvian national, who entered the U.S. with a B-2 visitor's visa and overstayed.  He later applied to adjust his status to that of a Lawful Permanent Resident based on his marriage to a U.S. citizen.  Upon the approval of the Immigrant Relative Petition, Mr. Crespo submitted an adjustment of status petition along with a "212h" waiver with the immigration judge. 

The waiver was denied by an immigration judge who held that Mr. Crespo was ineligible to apply for a 212h waiver because he had two "convictions" for marijuana possession.  The Immigration Judge determined that one of the convictions, which occurred in 1997 pursuant to Virginia Code 18.2-251, counted as a "conviction" for immigration purposes under 8 U.S.C. 1182(h) even though it was a deferred adjudication. The Board of Immigration Appeals (BIA) dismissed Mr. Crespo's appeal, agreeing with the Immigration Judge that the 1997 adjudication counted as a conviction and that Mr. Crespo was ineligible for a 212h waiver. Mr. Crespo petitioned for review of the denial of the 212h waiver.  

As our readers may be aware of, the definition of what constitutes a "conviction" under immigration law is not the same as the definition under criminal law.  We will address the differences on a different post.  For now, readers should now that a conviction for immigration purposes is defined under 8 U.S.C. section 1101(a)(48)(A).

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

(i)         a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii)        the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

As noted by the Court, this section creates two prongs for finding a conviction. The first prong covers situations in which there has been a "formal judgment of guilt".  This circumstance did not occur in this case. The second prong covers deferred adjudications and requires two elements: (i) a sufficient finding of support for a conclusion of guilt, and (ii) the imposition of some form of punishment.

The Court focused its review only on the first requirement of the second prong - whether there was some sufficient finding of guilt to satisfy 8 U.S.C. section 1101(a)(48)(A). The Court held that a plain reading of the statute confirmed that there was not sufficient finding of guilt to satisfy the statutory elements given that in this particular case none of the five sufficient findings were present: there was no finding of guilt by a judge or jury; there was no guilty plea, there was no plea of no contest; and there was no admission by the alien of facts sufficient to find guilt.