Much has been written (including by me) about the backlogs currently pending before the immigration courts. According to the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) component responsible for the immigration courts and the Board of Immigration Appeals (BIA), as of March 31, 2018, there were 697,777 cases pending before the immigration courts. One recent decision from the Court of Appeals for the Ninth Circuit only partially, but also succinctly, exemplifies how the immigration courts got into this position.
On its face, Sicat v. Sessions is fairly straightforward: The petitioner, a native and citizen of the Philippines, was ordered removed in absentia by an immigration judge when he failed to appear at a removal hearing in March 2016. At the time of that hearing, petitioner "had previously pursued, intended to pursue further, and actually did pursue further, adjustment of status based on his marriage to a United States citizen," although he did not have an approved Petition for Alien Relative (Form I-130), which would have been a requirement for adjustment.
He apparently did not have an approved I-130 because he also had previously missed a visa interview with U.S. Citizenship and Immigration Services (USCIS), although "his wife and attorney appeared at the interview and explained his absence."
He moved to reopen that immigration-court case, contending that he did not receive notice of the hearing. In support of that motion, he submitted affidavits from his wife, his adult daughter, and himself to establish that no one at his address had received a hearing notice from the immigration court. His wife also concurrently filed a new Form I-130 on his behalf, and "Sicat re-applied for adjustment of status."
The immigration judge denied that motion, as did the BIA (which relied in part on the immigration judge's reasoning), and petitioner filed a petition for review of that denial with the Ninth Circuit. The two judges writing for the majority of the court gave significant weight to the fact that petitioner "had attended each of his 10 immigration court hearings over several years before missing his visa interview."
The majority continued:
The denial of his wife's I-130 petition — which Sicat needed to adjust his status — was without prejudice. She thus could have, and later did, file another petition on his behalf. Sicat's ineligibility for immigration relief at the moment of his scheduled hearing was therefore not strongly probative of a motive to avoid his removal proceedings; had he known of the hearing, his wife could have filed the I-130 petition before it was held, and could then have sought a continuance of the hearing. ... In giving "significant weight" to Sicat's provisional ineligibility for relief, improperly applying the presumption that his current marriage was entered to procure an immigration benefit, and according only "limited weight" to the consistent affidavits of Sicat and his family members, the IJ "failed properly to weigh the positive and negative factors in exercising [his] discretion." ... Likewise, Sicat's absence at one visa interview after appearing consistently at immigration hearings before that, and the absence of any returned mail in the administrative record — a circumstance for which there are in common experience ready explanations other than receipt of the mail — did not outweigh the family's affidavits.
The court remanded the case to the BIA to in turn remand it to the immigration court to allow the court to determine whether Sicat did in fact receive notice of the March 2016 removal hearing.
The dissent, however, fleshes out more facts about the case that provide a window into not only this specific case, but the immigration-court backlog as a whole.
Specifically, the dissenting circuit judge noted that petitioner had entered the United States in 1989, under a false name, and subsequently married four different women. None of those women was the mother of petitioner's three children, each of whom, the dissent noted, "were born while Sicat was 'married' [sic] to other women." Somewhat humorously, the dissent stated that the mother of those children "is not a U.S. Citizen, and so marrying her would have violated the one cardinal rule of Sicat's matrimonial decisions."
He attempted to use three of these marriages to obtain immigration status. Interestingly:
When his third wife, Sheila Castillo, filed a Petition for Alien Relative on his behalf, [USCIS] conducted a site visit to investigate the bona fides of the marriage. The investigators concluded that "strong evidence" suggested the marriage was "entered into for the purpose of evading immigration laws."
That "strong evidence" included the fact that the "[i]nvestigators observed" that petitioner's "purported wife did not appear to live at the house and, when asked, occupants of the house gave varying answers as to her whereabouts." In addition, the investigators "observed that the alleged marital bedroom contained two beds, in which the children were sleeping, and very few items of women's clothing."
USCIS accordingly denied petitioner's application for adjustment of status, and on February 2, 2010, petitioner was placed into removal proceedings. A hearing was held on his application for adjustment of status on March 6, 2012, but before the immigration judge could issue a decision on that application, "USCIS issued a notice of intent to revoke its approval of the Petition for Alien Relative based on his marriage to Castillo," revoking that petition on August 15, 2012.
Petitioner divorced Castillo on November 26, 2013, and married Allison Chow (his fourth wife) the following week. She filed a visa petition on petitioner's behalf on April 9, 2014. After Sicat filed a motion to continue the removal proceedings pending adjudication of that petition, the immigration judge administratively closed the proceedings on May 20, 2014.
Petitioner and Chow were scheduled to appear before USCIS for an interview regarding that petition on December 29, 2014, but it was at this interview that petitioner failed to appear, and that petition was denied as abandoned on January 8, 2015.
On August 19, 2015, petitioner filed a change of address with the immigration court, and on October 14, 2015, the Department of Homeland Security (DHS) filed a motion to recalendar the administratively closed removal proceedings. That motion was granted, and the immigration judge set a status hearing for March 2016, sending a copy of the order to petitioner at the new address on file.
When he failed to appear at that hearing, Sicat was ordered removed in absentia, and on May 12, 2016, was detained by U.S. Immigration and Customs Enforcement (ICE). Thereafter, Chow filed a new visa petition, and on May 24, 2016, Sicat filed a motion to reopen. As the dissent characterized the immigration judge's order:
The IJ denied Sicat's motion to reopen, reasoning that while an in absentia order can be reopened at any time due to deficient notice, a notice mailed to the alien's last provided address by regular mail is entitled to a presumption of effective delivery. This presumption, however, is rebuttable based on consideration of the non-exhaustive list of factors set forth in Matter of M-R-A-. ... Analyzing these factors, the IJ found that Sicat had not rebutted the presumption. Specifically, the IJ found that the declarations should be given little weight because, although they stated that all immigration-related mail had failed to arrive, they did not report that any other mail had gone missing. Moreover, none of the mail had been returned as undelivered; Sicat did not seek to reopen the proceedings until he had been detained; and his questionable status, in light of USCIS's recent denial of his Petition for Alien Relative, gave him a motive not to show up.
In Matter of M-R-A-, the BIA noted that when the charging document in a removal proceeding (known as the "Notice to Appear" or "NTA") is sent to the correct address by regular mail, "there is a presumption of delivery, but it is weaker than the presumption that applies to documents sent by certified mail." It continued:
An inflexible and rigid application of the presumption of delivery is not appropriate when regular mail is the method of service of a Notice to Appear or Notice of Hearing. In determining whether a respondent has rebutted the weaker presumption of delivery applicable in these circumstances, an Immigration Judge may consider a variety of factors including, but not limited to, the following: (1) the respondent's affidavit; (2) affidavits from family members or other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the respondent's actions upon learning of the in absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the respondent had an incentive to appear; (5) any prior application for relief filed with the Immigration Court or any prima facie evidence in the record or the respondent's motion of statutory eligibility for relief, indicating that the respondent had an incentive to appear; (6) the respondent's previous attendance at Immigration Court hearings, if applicable; and (7) any other circumstances or evidence indicating possible nonreceipt of notice. We emphasize that these are just examples of the types of evidence that can support a motion to reopen. Immigration Judges are neither required to deny reopening if exactly such evidence is not provided nor obliged to grant a motion, even if every type of evidence is submitted. Each case must be evaluated based on its own particular circumstances and evidence.
The dissent noted that the BIA considered the factors in Matter of M-R-A-, "and concluded that the weight of the evidence favored denying the motion," and in particular "concluded that Sicat had 'not presented sufficiently persuasive evidence to overcome the presumption that the Postal Service properly delivered the'" NTA.
It held that: "given the evidence, this conclusion was not 'arbitrary, irrational, or contrary to law," and was not an abuse of discretion. For that reason, the dissent disagreed with the majority that the immigration judge "improperly weighed the evidence" and that remand was necessary to determine whether petitioner had received notice of the March 2016 hearing.
Notwithstanding the validity of Sicat's assertions, several points bear repeating. Petitioner has been in the United States (apparently illegally) for almost 30 years. He has been married four times, and attempted through three of those marriages to obtain immigration benefits. EOIR determined that the visa petition filed by his third wife "was denied based on the finding that the marriage was a sham." The fourth marriage occurred while petitioner was in removal proceedings, creating a presumption "that the purpose was to 'procure the alien's admission as an immigrant'" under Ninth Circuit law. He failed to appear at the visa interview with that fourth wife, and has three children with another woman (who is not a U.S. citizen) each of whom was born during his marriages to other people. Petitioner has been in removal proceedings for more than eight years, and he has been scheduled for removal proceedings 11 times, despite the fact that his case was administratively closed for almost a year and a half. And he will likely be scheduled for at least a twelfth removal proceeding.
In testimony before the Senate Judiciary Committee's Subcommittee on Border Security and Immigration, I listed a series of reasons for the dramatic increase in the backlogs before the immigration courts in recent years, including a lack of resources and specific immigration policies of the last administration. As this case reveals, however, there are certain systemic issues that are inherent in the removal process that prevent the timely completion of cases. One of those is the policy to continue removal proceedings pending adjudication of applications before USCIS.
Fortunately, it appears that Attorney General Jeff Sessions is poised to address this issue. In Matter of L-A-B-R-, he has requested briefing on the following issue:
An Immigration Judge is authorized to "grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to "grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application"). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does "good cause" exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?
The Ninth Circuit's decision in Sicat provides as good a reason as any for the attorney general to limit such continuances.