Third Circuit Returns Reason to IJ Discretion
On October 18, the U.S. Court of Appeals for the Third Circuit issued a little-noticed decision in Doyduk v. Attorney General, rejecting an alien’s petition for review of an immigration judge (IJ) order denying adjustment of status under section 245(a) of the Immigration and Nationality Act (INA). None of that is exceptional, but what is exceptional is that the three-judge panel returned reason to how IJs are allowed to apply discretion.
The Criminal Case. Ersin Doyduk, is a Turkish national who entered the United States on an unspecified nonimmigrant visa. His period of authorized admission ended in 2010, but he was still in the United States a year later when the key events in the case occurred.
Specifically, late one night after the petitioner and his then-girlfriend, also an alien without status, had been drinking, tragedy ensued. The girlfriend was stabbed, though it is not entirely clear how.
Doyduk panicked and called his boss, Murat Coskun, and Coskun then called 911. Detective Andrew Jackson of the Philadelphia Police Department responded and found the girlfriend lying in the bathroom and bleeding from her stomach. Jackson also “observed blood throughout the home and on a small paring knife in the kitchen sink”.
Recalling the incident later, Jackson further asserted that Doyduk’s shirt was bloody and that he had unexplained scratches on his neck. The girlfriend, for her part, initially contended that Doyduk had stabbed her by accident, and then contended that she had stabbed herself.
“Finally,” according to the Third Circuit, “Detective Jackson testified that Coskun said Doyduk called him in a panic saying he ‘went crazy and put a knife in her.’”
Doyduk was thereafter charged with five offenses, including aggravated and simple assault and reckless endangerment. When Coskun and the girlfriend refused to testify, however, the case was dropped.
Pennsylvania law requires that charges be expunged after 18 months when there has been no action in a criminal case, and consequently the charging documents were thereafter discarded.
The Removal Proceedings. Doyduk was placed into removal proceedings in 2011 and charged with removability as a nonimmigrant who had overstayed his status. A year later, he conceded removability, but applied for adjustment of status to lawful permanent resident (LPR) as relief from removal.
LPR status is colloquially known as having a “green card”, and traditionally an alien had to apply for an immigrant visa abroad and then go through the inspection process upon arrival in the United States to obtain that green card.
The current adjustment of status provision, however, was intended by Congress “to obviate the need for departure and reentry for aliens temporarily in the United States” — that is nonimmigrants — to obtain LPR status.
Adjustment of status, however, is a discretionary form of relief. As section 245(a) of the INA states: “The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe.” (Emphasis added.)
In removal proceedings, the IJ is the attorney general’s delegate, authorized to exercise his discretionary authority to adjust the status of an alien who has satisfied the statutory requirements for that relief. Regardless, as the Third Circuit has made clear, “Adjustment of status is … a matter of administrative grace, not mere statutory eligibility.”
The Board of Immigration Appeals (BIA) has provided guidance on the positive and negative factors that IJs may consider in exercising discretion, including “the existence of a criminal record and, if so, its nature, recency, and seriousness”. Still, as the BIA has explained, “each case must be judged on its own merits”.
Here, the IJ denied adjustment, concluding that “the facts and circumstances surrounding [Doyduk’s] arrest present serious adverse factors that work against a favorable exercise of discretion.”
The BIA summarily affirmed the IJ’s decision on appeal, which teed the matter up for Doyduk to file a petition for review to the Third Circuit.
Conflicting Precedent. This would have been a straightforward case, except for seemingly conflicting BIA precedent. In its 1995 decision in Matter of Arreguin, the BIA reversed an IJ’s denial of an application for a waiver under former section 212(c) of the INA filed by an LPR applicant for admission with a 1993 federal conviction for importation of marijuana.
At issue in Matter of Arreguin was both that conviction and the applicant’s 1980 arrest for suspicion of alien smuggling. The then-INS attorney had presented evidence of that latter arrest during the exclusion proceedings, and the IJ considered it to be an adverse discretionary factor in denying the 212(c) waiver.
The BIA held:
Just as we will not go behind a record of conviction to determine the guilt or innocence of an alien, so we are hesitant to give substantial weight to an arrest report, absent a conviction or corroborating evidence of the allegations contained therein. Here, the applicant conceded that the arrest took place but admitted to no wrongdoing. Considering that prosecution was declined and that there is no corroboration, from the applicant or otherwise, we give the apprehension report little weight.
Doyduk alleged that the IJ had erred in departing from the precedent in Matter of Arreguin when the IJ gave “substantial weight” to the evidence concerning the alleged stabbing incident involving his girlfriend.
The three-judge panel disagreed and distinguished the BIA’s holding in Matter of Arreguin.
It noted that the allegations in the police report in Doyduk’s case were corroborated by other evidence, including photos of the girlfriend’s wound and of the scene Jackson found, her hospital records, Jackson’s testimony and cross-examination in immigration court, a subsequent restraining order against Doyduk, and Coskun’s statement to Jackson.
Limits on the Use of Vacated Convictions. The circuit panel also dismissed Doyduk’s arguments based on case law that limits consideration of vacated convictions that would otherwise be statutory bars to adjustment of status. Here, the IJ found that Doyduk’s expunged arrest didn’t bar him from being statutorily eligible for adjustment, only that the facts of the offense prevented a discretionary grant of that relief.
Restrictions Under State Law. Finally, the circuit judges held that Pennsylvania state criminal records statutes did not prevent the IJ from considering evidence related to Doyduk’s expunged arrest.
At issue was the state’s Criminal History Record Information Act (CHRIA), which provides that “an individual may not be required or requested to disclose information about the individual’s criminal history record that has been expunged.”
The judges held that Doyduk could refuse under to answer questions about the alleged stabbing incident, but that he could not use that provision “to silence others from divulging information related to his expunged charges” — in this case Detective Jackson.
Key Takeaways. There are many takeaways from Doyduk, not least of which is that — in the Third Circuit, at least — IJs may consider criminal allegations that didn’t result in convictions when exercising discretion. That’s particularly important given that most relief from removal — including asylum — is discretionary.
The case, which has been pending for more than a decade, also underscores how difficult it is for ICE to obtain removal orders, particularly when allegations of criminal misconduct enter the mix. Keep that in mind when you consider that fewer than 660 IJs are facing a backlog of nearly 1.9 million pending cases.
As a former IJ, I can assure you that law — even the tortuous INA — is the easy part. Discretion is hard, particularly when allegations of serious criminal activity are involved. But, as the Third Circuit decision in Doyduk shows, applying discretion doesn’t have to be unreasonable.
