Deportation of Afghan refugees from the United States

Deportation of Afghan refugees from the United States refers to the refoulment of Afghan refugees with no criminal conviction[1][2] and the involuntary removal of Afghan-Americans who have been convicted of a common crime in the United States.[3][4] Some of these individuals in removal proceedings were admitted to the United States in the 1980s with their refugee family members after escaping from genocide and persecution,[5][6][7] and have continuously spent decades as legal immigrants (potential U.S. nationals).[8][9][10][11][12][4][13]

According to the Immigration and Nationality Act (INA), the Afghan-Americans did not enter the United States with immigrant visas as lawful permanent residents but rather with special travel documents as refugees.[14][15][16] As such, they have been immunized against deportation from the United States since 1980 when the U.S. Congress enacted INA §§ 207 and 209, 8 U.S.C. §§ 1157 and 1159.[17][18][19] This legal finding is supported by latest precedents of all the U.S. courts of appeals and the Board of Immigration Appeals (BIA),[18] which are binding on all immigration judges and Department of Homeland Security (DHS) officers.[20][21][22][23][24][25][26][11]

History
Further information: Afghanistan–United States relations

An Afghan-American in deportation proceedings has been reported in 1945. The immigration officials suspended (cancelled) his deportation, which allowed him to remain in the United States with his American family.[27]

Afghans escaping from genocide and persecution in Afghanistan
Further information: Saur Revolution

Afghanistan began to experience a great turmoil in the 1970s,[28][29][30][31] which resulted in a mass exodus of its citizens, who were first admitted to neighboring Pakistan and Iran as refugees escaping from: (1) genocide that was orchestrated by the communist People's Democratic Party of Afghanistan (PDPA); and (2) political repression of the mujahideen, who were engaged in a guerrilla warfare with the PDPA.[5][6][19][7] Iran and Pakistan have never provided citizenship or permanent residency to these Afghan refugees.

In 1980, the U.S. Congress and the Carter administration enacted the Refugee Act, which approved 50,000 international refugees to be firmly resettled in the United States each year.[16][32] Before enacting the Refugee Act, Congress was well aware of the fact that these refugees are not priests and nuns but ordinary people prone to committing a crime just like Americans commit a crime in the United States.[33][34]

Firm resettlement of Afghan refugees in the United States
Further information: Lawful permanent residents (United States)

Each year, from 1980 onward, groups of Afghan refugee families lawfully entered the United States.[15][14] These families were issued by the U.S. Department of State special travel documents. At least one such family entered with fraudulent documents and applied for asylum in the United States.[35][33] After residing for at least one year in the United States, the then Immigration and Naturalization Service (INS) adjusted their status to that of lawful permanent residents (green card holders).[12][4][13] This process statutorily protected them from refoulment (forceful deportation) for lifetime.[10][17][18][36][37][5][6][38]

These refugee families were distributed all across the United States. Most were firmly resettled in and around New York City, California, Northern Virginia, Florida, and Texas. In 1982, the U.S. Supreme Court reminded all immigration officials that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly."[39] That opinion was issued after Congress and the Reagan administration firmly resettled in the United States refugees from various troubled countries.[32][19]

United States Congress provides statutory relief to Afghan-Americans against removability
Further information: Afghan Americans and Removal proceedings

The INA historically stated that "[t]he term 'alien' means any person not a citizen or national of the United States."[40] The terms "inadmissible aliens" and "deportable aliens" are synonymous.[41] If an Afghan-American is not inadmissible to the United States then he or she is plainly and unambiguously not removable from the United States.[36][19][4] Anything to the contrary will make deportation from the United States a paid international vacation for him or her and a "cruel and unusual punishment" for others.[42][7] For example, some deportees could successfully make the U.S. government pay them hundreds of thousands[43][44] (or possibly millions[45][4]) of dollars while others could end up committing suicide.[46][47]

In this regard, INA § 207(c), 8 U.S.C. § 1157(c), expressly provides the following:

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking admission to the United States under this subsection, and 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.[48][49]

INA § 209, 8 U.S.C. § 1159, provides the following:

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.[50][49]

In addition to the above provisions, INA § 212(h), 8 U.S.C. § 1182(h), provides the following:

The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) . . . if. . . it is established to the satisfaction of the Attorney General that. . . the [crime] for which the alien is [removable] occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status, . . . the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and . . . the alien has been rehabilitated; or . . . in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien. . . .[51][49]

The above 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."[52] Congress clearly treated refugees (i.e., established victims of persecution who have absolutely no safe country) differently than all other aliens (who do have a safe country and are not victims of persecution).[16][19][7] There is nothing ambiguous in the plain language of § 1157(c)(3), 1159(c), or 1182(h).[17][18] If Congress wanted to treat refugees the same as all other aliens, it would have repealed §§ 1157(c)(3) and 1159(c) instead of amending them in 1996 and then in 2005.[53] This clearly demonstrates that it intentionally made available a statutory and mandatory legal remedy to refugees. 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."[54]

It is also crucial to take notice that the penultimate provision of § 1182(h), where it repeatedly mentions the phrase under this subsection, obviously does not apply to any Afghan-American requesting relief under §§ 1157(c)(3) and 1159(c), or under the United Nations Convention against Torture (CAT).[55][38] In other words, that commanding concluding statement of § 1182(h) only applies to aliens who were admitted to the United States as lawful permanent residents in accordance with Form I-130, Form I-140, Diversity Immigrant Visa, etc. The Afghan-Americans who were admitted as refugees in the 1980s are still refugees under the INA and international law because (1) they continue to be victims of persecution and (2) they have absolutely no safe country of permanent residence.[16][32][19][7] This means that any such Afghan-American who has been convicted of any offense mentioned in § 1101(a)(43)(A) is not (and has never been) precluded from relief under §§ 1157(c)(3) and 1159(c) or the CAT.[17][18][56][38] It has long been understood in the United States that whenever "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."[57]

The above provisions are in clear harmony with each other and the overall law of the United States, including with international law.[38] Secondly, providing relief under §§ 1157(c)(3) and 1159(c) or the CAT is not discretionary but statutory and mandatory,[58][59][38] and the above provisions all involve "legal claims" (i.e., constitutional claims or questions of law). As such, federal judges are fully empowered to review these "legal claims" at any time, especially in a case involving exceptional circumstances.[60][61][62][63][9][64] The U.S. Court of Appeals for the Ninth Circuit recently reaffirmed this by stating the following:

[W]e have not specifically addressed whether we have jurisdiction to review the Board's denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction . . . we agree with those decisions.[65]

Expansion of the definition of "nationals but not citizens of the United States"
Further information: Americans and United States nationality law

In 1986, less than a year before the CAT became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to 8 U.S.C. § 1408, which plainly states that:

the following shall be nationals, but not citizens, of the United States at birth: .... (4) A person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years—(A) during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and (B) at least five years of which were after attaining the age of fourteen years.[66][58]

The natural reading of § 1408(4) demonstrates that it was not exclusively written for the 55,000 American Samoans but also for Afghan-Americans who statutorily and manifestly qualify as "nationals but not citizens of the United States."[66][67][68] This means that any Afghan-American who can show by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of 8 U.S.C. §§ 1408(4) and 1436 is plainly and unambiguously a "national but not a citizen of the United States."[9] Such person must never be labelled or treated as an alien, especially after demonstrating that he or she has continuously resided in the United States for at least 10 years without committing (in such 10 years) any offense that triggers removability.[4][69] "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."[26][21][22][23][24][25][11][43][4]

Introduction and amendment of the term "aggravated felony"
Further information: Aggravated felony

In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101(a).[70] Its definition was amended over the years. As of September 30, 1996, an "aggravated felony" only applies to convictions "for which the term of imprisonment was completed within the previous 15 years."[56][71][51][52][68] After the elapse of such "15 years" and avoidance of another aggravated felony conviction, a lawful permanent resident (LPR) automatically becomes eligible for both cancellation of removal and a waiver of inadmissibility.[4] He or she may (at any time) request these immigration benefits depending on whichever is more applicable or easiest to obtain.[36][72] A suspended sentence counts as "term of imprisonment" and must be added to the above 15 years passing of time,[73] and it makes no difference if the aggravated felony was committed in Afghanistan, American Samoa, Australia, Canada, Mexico, the United Arab Emirates, United Kingdom, United States, or in any other country or place in the world.[56][52][68]

Illegal Immigration Reform and Immigrant Responsibility Act
Further information: Cancellation of removal and Waiver of inadmissibility (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. Many green card holders are actually Americans without them knowing, and are thus not removable from the United States.[44][74]

In February 1995, 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).[11][58]

On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) took effect,[53] which is particularly aimed at combating illegal immigration to the United States. But despite what President Clinton said in the above directive, some plainly incompetent immigration officers began deporting firmly-settled legal immigrants (i.e., potential Americans).[4] These people have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc. They own homes, businesses, cars and other properties in the United States under their names. Such people statutorily qualify as "nationals of the United States" after continuously residing in the United States for at least 10 years without committing (in such 10 years) any offense that triggers removability.[66] This appears to be the reason why the permanent resident card (green card) is valid for 10 years. It was expected that all Afghan-Americans would obtain U.S. citizenship within 10 years from the date of their first lawful entry,[15] but if that was unachievable then they would statutorily become "nationals but not citizens of the United States" after the successful elapse of such 10 years.[52][68] Anything to the contrary will lead to "deprivation of rights under color of law," which is a federal crime that entails capital punishment for the perpetrator(s).[21][22][23][24][25][26][74][43][44]

The Afghan-Americans in removal proceedings have already "been lawfully accorded the privilege of residing permanently in the United States" by the Attorney General,[10][17][18] but decades later the incompetent immigration officials unconstitutionally turned these firmly resettled Americans into refugees again.[16][32][19][7] Unlike other aliens in removal proceedings, these refugees have no safe country and they obviously owe permanent allegiance solely to the United States.[40] They have never pledged any kind of allegiance to the communist PDPA government, which dissolved in April 1992, nor to the Taliban or the other Afghan governments.[5][6] This makes them nothing but a distinct class of persecuted Americans.[7][42] The ones who cannot become U.S. citizens are statutorily allowed by Congress to live in the United States with their American families for the rest of their life.[17][18][75][74][44] Deporting such Americans shocks the conscience of every ordinary judge because doing such is plainly a grave international crime.[21][22][23][24][25][69][26][11][76] Not only Americans but the whole world sees that there is nothing but death and a grave waiting for Afghan-Americans returning to Afghanistan,[1][77] which is nothing but an international war zone controlled by the United States.

"Only aliens are subject to removal."[78] As mentioned above, the terms "inadmissible aliens" and "deportable aliens" are synonymous.[41] It is common knowledge that these aliens mainly refer to the INA violators among the 75 million foreign nationals who are admitted each year as guests,[15][79][80] the 12 million or so illegal aliens,[81] and the INA violators among the 400,000 foreign nationals who possess the temporary protected status (TPS).[82] An LPR can either be an alien or a national of the United States (American), which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a green card holder.[8][9][66][69] Any such person who has been convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, is "debarred from becoming a citizen of the United States."[83][75][84][85] However, unlike a "national but not a citizen of the United States," any alien who has been convicted of an aggravated felony is removable from the United States but only if his or her "term of imprisonment was completed within the previous 15 years."[56][71][52][68] Such alien cannot:

Challenging an aggravated felony charge
Further information: Removal proceedings and Federal Rules of Appellate Procedure
Any person (or class of people) may take his or her deportation-related case to the U.S. Supreme Court by invoking 8 U.S.C. §§ 1252(a)(1) and 1252(f).[62]

An "order of deportation" may be reviewed at any time by any immigration judge or any BIA member and finally by any authorized federal judge.[60] Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure.[61] The review of the order does not require the alien (or the American) to remain in the United States. It can be requested from anywhere in the world via mail (e.g., DHL, FedEx, UPS, etc.) and/or electronic court filing (ECF),[92] and the case can be filed in any court the alien (or American) finds appropriate.[4]

Every United States nationality claim, illegal deportation claim, and CAT or asylum claim is adjudicated under 8 U.S.C. §§ 1252(a)(4), 1252(b)(4), 1252(b)(5), and 1252(f)(2). When these specific provisions are invoked, all other contrary provisions of law, especially § 1252(b)(1) and Stone v. INS, 514 U.S. 386, 405 (1995) (case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA"),[53] must be disregarded because the above three claims manifestly constitute exceptional circumstances.[63][61][8][62][64][32] The Supreme Court has pointed out in 2009 that "the context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision."[93] In this regard, Congress has long warned every government officials by expressly stating the following:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be subject to specified criminal penalties.[94][21][22][23][24][25][11][26]

According to § 1252(f)(1), "no court (other than the Supreme Court)" is authorized to determine which two or more people in removal proceedings should be recognized as nationals of the United States (Americans).[62] This includes parents and children or relatives.[66][8] The remaining courts, however, are fully empowered pursuant to §§ 1252(b)(5) and 1252(f)(2) to, inter alia, issue an injunction to terminate any Afghan-American's removal proceedings; return any previously removed Afghan-American to the United States; and/or to confer United States nationality upon any Afghan-American (but only using a case-by-case analysis).[62][64][9] In addition to that, under 8 CFR 239.2, any officer mentioned in 8 CFR 239.1 may at any time move to terminate the removal proceedings of any Afghan-American who turns out to be a national of the United States or one who is simply not "removable" under the INA.[41][87]

Number of Afghan-Americans physically removed from the United States
Further information: Deportation of Americans from the United States

In spite of being eligible for relief under, inter alia, 8 U.S.C. §§ 1157(c)(3), 1159(c), and 1182(h),[17][18] and Afghanistan and the United States having absolutely no repatriation agreement,[95] approximately 378 Afghan-Americans have been physically removed from the United States between November 2002 and January 2016. At least 225 had no criminal conviction. These individuals were probably failed asylum seekers who did not possess any legal status in the United States or simply wrongfully deported.[43][44][96][97][74] "Recent data suggests that in 2010 well over 4,000 U.S. citizens were detained or deported as aliens[.]"[98][99]

Among the remaining 153 Afghan-Americans, one appears to have been convicted of homicide, another of negligent homicide (involuntary manslaughter or vehicular homicide), and the remaining were convicted of assault and other common crimes, including driving under the influence (DUI), shoplifting, and traffic offenses.[2][3] A couple of them violated a firearm law but an Afghan-American convicted of such an offense should never be deported unless the government wants to provide to him or her a paid international vacation.[4][36][15][33] Congress clarified this in 1996 and it was perfectly settled by the BIA in a March 2000 en banc decision,[100] which has since been binding on all immigration judges and DHS officers.[20] It is, therefore, a clearly established law for qualified immunity purposes. Deportation of Afghan-Americans steadily declined over the years, from "77" in 2003 to only "17" in 2015.[2]

See also

References

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

  1. Castner, Brian (August 18, 2017). "The Fight of His Life". Esquire. Retrieved 2018-10-31.
  2. "Historical Data: Immigration and Customs Enforcement Removals". TRAC Reports, Inc. 2016. Retrieved 2018-10-02.
  3. Thornton, Kelly (April 16, 2004). "Afghan immigrant sentenced to time served". The San Diego Union-Tribune (U-T San Diego). Archived from the original on 2018-10-03. Retrieved 2018-10-02. Man also will lose his U.S. citizenship
  4. 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, 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 8 U.S.C. § 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. 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. Absent such a clear statement, ... courts should treat the restriction as nonjurisdictional.... And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional.") (citations, internal quotation marks, and brackets omitted) (emphasis added); 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.").
  5. 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.").
  6. 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.").
  7. Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) ("Persecution may be emotional or psychological, as well as physical."); see also Westermann, Edward B. (1999). "The Limits of Soviet Airpower: The Failure of Military Coercion in Afghanistan, 1979-89". Journal of Conflict Studies. 19 (2). Retrieved 2018-10-20.
  8. Khalid v. Sessions, ___ F.3d ___, ___, No. 16‐3480, p.6 (2d Cir. Sept. 13, 2018) ("[Petitioner] is a U.S. citizen and the Department of Homeland Security (DHS) must terminate removal proceedings against him."); Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018) (same); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); Dent v. Sessions, ___ F.3d ___, ___, No. 17-15662, p.10-11 (9th Cir. Aug. 17, 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); 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 CFR 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) ("Duarte's legal claim encounters no jurisdictional obstacle because the Executive Branch has no authority to remove a national of the United States."); 8 CFR 239.2; see also Yith v. Nielsen, 881 F.3d 1155, 1159 (9th Cir. 2018) ("Once applicants have exhausted administrative remedies, they may appeal to a district court."); 8 U.S.C. § 1447(b) ("Request for hearing before district court").
  9. 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."); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015) ("The sole such statutory provision that presently confers United States nationality upon non-citizens is 8 U.S.C. § 1408."); Matter of Navas-Acosta, 23 I&N Dec. 586, 587 (BIA 2003) ("If Congress had intended nationality to attach at some point before the naturalization process is complete, we believe it would have said so."); 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...."); 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.'"); 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); see also In re Petition of Haniatakis, 376 F.2d 728 (3d Cir. 1967); In re Sotos' Petition, 221 F. Supp. 145 (W.D. Pa. 1963).
  10. 8 U.S.C. § 1101(a)(20) ("The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant ...."); see also 8 U.S.C. § 1101(a)(15) (defining the term "immigrant").
  11. "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved 2018-09-26. See also Zuniga-Perez v. Sessions, ___ F.3d ___, ___, No. 17-996, p.11 (2d Cir. July 25, 2018) ("The Constitution protects both citizens and non‐citizens.") (emphasis added).
  12. Ali v. Ashcroft, 395 F.3d 722 (7th Cir. 2005).
  13. Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014).
  14. Smriko v. Ashcroft, 387 F.3d 279, 287 (3d Cir. 2004) (explaining that the idea of refugees being admitted to the United States as lawful permanent residents was intentionally rejected by the U.S. Congressional Conference Committee); H.R. Conf. Rep. No. 96-781, at 21 (1980), reprinted in 1980 U.S.C.C.A.N. 160, 162.
  15. 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).
  16. 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).
  17. 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.").
  18. 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).
  19. Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013) ("The core regulatory purpose of asylum . . . is . . . to protect refugees with nowhere else to turn.") (brackets and internal quotation marks omitted).
  20. "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 CFR 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).
  21. "Deprivation Of Rights Under Color Of Law". U.S. Dept. of Justice (DOJ). August 6, 2015. Retrieved 2018-09-27. 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).
  22. 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) (holding that 18 U.S.C. §§ 241 and 242 are "crimes of violence"); 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).
  23. 18 U.S.C. § 2441 ("War crimes").
  24. "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved 2018-09-27. [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. (emphasis added).
  25. "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).
  26. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (citation and internal quotation marks omitted); see also Arizona v. United States, 567 U.S. 387, 395 (2012) ("Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.").
  27. Matter of K-, 2 I&N 253 (BIA 1945; A.G. 1945) ("The respondent is a 43-year-old native and citizen of Afghanistan, of the Afghan race, who last entered the United States at Portland, Oreg., on June 11, 1926, as a deserting seaman.... [He] is married to a native-born American citizen and is the father of three native-born minor children, all of whom are dependent upon him for support....").
  28. "U.S.: Afghan Jews Keep Traditions Alive Far From Home". Nikola Krastev. Radio Free Europe/Radio Liberty (RFE/RL). June 19, 2007. Retrieved 2018-10-31.
  29. Bowersox, Gary W. (2004). The Gem Hunter: The Adventures of an American in Afghanistan. United States: GeoVision, Inc. pp. 100–03. ISBN 978-0-9747-3231-2. Retrieved 2018-10-25.
  30. "Afghan-American Family Finds Ramadan Good Opportunity for Reflection". Voice of America (VOA). September 9, 2010. Retrieved 2018-10-04.
  31. "Little Kabul -- An Afghan American Community in California". dingopanga. October 21, 2011. Retrieved 2018-10-04.
  32. See generally Hanna v. Holder, 740 F.3d 379, 393-97 (6th Cir. 2014) (firm resettlement); Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011) (same).
  33. Matter of D-X- & Y-Z-, 25 I&N Dec. 664, 666 (BIA 2012) ("It is well settled that an alien is not faulted for using fraudulent documents to escape persecution and seek asylum in the United States."); see also 8 U.S.C. § 1101(a)(43)(P); 8 U.S.C. § 1227(a)(3)(C)(ii).
  34. 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 United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990) (U.S. immigration officers kidnapped, robbed and murdered a visiting foreign businessman).
  35. König, Karin (1989). Detained, Denied, Deported: Asylum Seekers in the United States. Human Rights Watch. p. 45. ISBN 9780929692227.
  36. 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 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."); Vartelas v. Holder, 566 U.S. 257, 262 (2012).
  37. Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015) ("Whether an asylum applicant has an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant's return to the country of removal is a legal determination that is subject to de novo review.").
  38. Anwari v. Attorney General of the U.S., Nos. 18-1505 & 18-2291, p.6 (3rd Cir. Nov. 6, 2018); see also Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 279 (A.G. 2002) ("Although the respondents are statutorily ineligible for withholding of removal by virtue of their convictions for 'particularly serious crimes,' the regulations implementing the Convention Against Torture allow them to obtain a deferral of removal notwithstanding the prior criminal offenses if they can establish that they are 'entitled to protection' under the Convention."); 8 U.S.C. § 1252(a)(4) ("Claims under the United Nations Convention").
  39. Landon v. Plasencia, 459 U.S. 21, 32 (1982).
  40. 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); Ricketts v. Att'y Gen., 897 F.3d 491, 493-94 n.3 (3d Cir. 2018) ("Citizenship and nationality are not synonymous."); 8 U.S.C. § 1101(a)(31) ("The term 'permanent' means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law."); 8 U.S.C. § 1101(a)(33) ("The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."); Black's Law Dictionary at p.87 (9th ed., 2009) (defining the term "permanent allegiance" as "[t]he lasting allegiance owed to [the United States] by its citizens or [lawful permanent resident]s.") (emphasis added).
  41. 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. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-4199, p.11 (3d Cir. Sept. 6, 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, ___, No. 17-1253, p.4-5 (7th Cir. July 31, 2018).
  42. See generally Matter of Smriko, 23 I&N Dec. 836 (BIA 2005) (a cursory opinion of a three-member panel blatantly persecuting refugees and depriving them of rights); Maiwand v. Gonzales, 501 F.3d 101, 106-07 (2d Cir. 2007) (same); Romanishyn v. Att'y Gen., 455 F.3d 175 (3d Cir. 2006) (same); Kaganovich v. Gonzales, F.3d 894 (9th Cir. 2006) (same).
  43. Stevens, Jacqueline (June 2, 2015). "No Apologies, But Feds Pay $350K to Deported American Citizen". LexisNexis. See also "Peter Guzman and Maria Carbajal v. United States, CV08-01327 GHK (SSx)" (PDF). U.S. District Court for the Central District of California (CDCA). www.courtlistener.com. June 7, 2010. p. 3. Retrieved 2018-10-21.
  44. Sakuma, Amanda (October 24, 2014). "Lawsuit says ICE attorney forged document to deport immigrant man". MSNBC. Retrieved 2018-10-20.
  45. Harvey v. Chertoff, 263 F. App'x. 188, 190 (3d Cir. 2008) ("Harvey sought money damages in the amount of $15 million.") (non-precedential); see also Allen v. Holder, Civil Action No. 13-5736, p.3 (D.N.J. Aug. 16, 2016) ("He also seeks $5,000,000 in damages.").
  46. "Afghan Migrant Deported From Germany Kills Himself". Radio Free Europe/Radio Liberty. July 11, 2018. Retrieved 2018-10-22.
  47. "Cambodian-Americans confronting deportation". Olesia Plokhii and Tom Mashberg. Boston Globe. January 27, 2013. Retrieved 2018-10-18.
  48. 8 U.S.C. § 1157(c)(3) (emphasis added).
  49. 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.").
  50. 8 U.S.C. § 1159(c) (emphasis added).
  51. 8 U.S.C. § 1182(h) (emphasis added).
  52. 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.").
  53. 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.").
  54. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
  55. Tima v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-4199, p.8 (3d Cir. Sept. 6, 2018) ("Congressional drafting manuals instruct drafters to break statutory sections down into subsections, paragraphs, subparagraphs, clauses, and subclauses.").
  56. 8 U.S.C. § 1101(a)(43) ("The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.") (emphasis added); 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 (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 CFR 1001.1(t) ("The term aggravated felony means a crime (or a conspiracy or attempt to commit 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).
  57. United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972); see also United States v. Wooten, 688 F.2d 941, 950 (4th Cir. 1982).
  58. Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  59. 8 U.S.C. § 1252(a)(2)(B)(ii) (stating that "the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a)....").
  60. 8 U.S.C. § 1101(a)(47); see generally Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1253 (2015); Avalos-Suarez v. Whitaker, No. 16-72773 (9th Cir. Nov. 16, 2018) (unpublished) (case involving a 1993 order of deportation); Nassiri v. Sessions, No. 16-60718 (5th Cir. Dec. 14, 2017); Alimbaev v. Att'y, 872 F.3d 188, 194 (3d Cir. 2017); Agonafer v. Sessions, 859 F.3d 1198, 1202-03 (9th Cir. 2017); In re Baig, A043-589-486 (BIA Jan. 26, 2017) (unpublished three-member panel decision); In re Cisneros-Ramirez, A 090-442-154 (BIA Aug. 9, 2016) (same); In re Contreras-Largaespada, A014-701-083 (BIA Feb. 12, 2016) (same); In re Wagner Aneudis Martinez, A043-447-800 (BIA Jan. 12, 2016) (same); In re Vikramjeet Sidhu, A044 238 062 (BIA Nov. 30, 2011) (same); accord Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999) (en banc); Matter of JJ-, 21 I&N Dec. 976 (BIA 1997) (en banc).
  61. 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); Mattis v. Vaughn, Civil Action No. 99-6533 (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); Pacheco-Miranda v. Sessions, No. 14-70296 (9th Cir. Aug. 11, 2017) (same).
  62. Jennings v. Rodriguez, 583 U.S. ___, 138 S.Ct. 830, 851 (2018); 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); 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."); Alli v. Decker, 650 F.3d 1007, 1010-11 (3d Cir. 2011) (same); Andreiu v. Ashcroft, 253 F.3d 477, 482-85 (9th Cir. 2001) (en banc) (same); see also 8 U.S.C. § 1326(d) ("Limitation on collateral attack on underlying deportation order").
  63. 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).
  64. Singh v. USCIS, 878 F.3d 441, 443 (2d Cir. 2017) ("The government conceded that Singh's removal was improper.... Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary parole to certain aliens."); Orabi v. Att’y Gen., 738 F.3d 535, 543 (3d Cir. 2014) ("The judgment of the BIA will therefore be reversed, with instructions that the Government... be directed to return Orabi to the United States ...."); Avalos-Palma v. United States, No. 13-5481 (FLW), 2014 WL 3524758, p.3 (D.N.J. July 16, 2014) ("On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States."); In re Vikramjeet Sidhu, A044 238 062, at 1-2 (BIA Nov. 30, 2011) ("As related in his brief on appeal, the respondent was physically removed from the United States in June 2004, but subsequently returned to this country under a grant of humanitarian parole.... Accordingly, the proceedings will be terminated.") (three-member panel).
  65. Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016) (citations omitted).
  66. 8 U.S.C. § 1408 (emphasis added); see also 8 U.S.C. § 1436 ("Nationals but not citizens...."); 12 CFR 268.205(a)(7) ("National refers to any individual who meets the requirements described in 8 U.S.C. 1408."); "Certificates of Non Citizen Nationality". Bureau of Consular Affairs. U.S. Department of State. Retrieved 2018-09-26..
  67. 8 U.S.C. § 1427(b) (Congress explaining that lawful permanent residents may lawfully remain outside the United States for one year (or even longer) in certain situations).
  68. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) ("The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."); see also Matter of Dougless, 26 I&N Dec. 197, 199 (BIA 2013) ("The [Supreme] Court has also emphasized that the Chevron principle of deference must be applied to an agency’s interpretation of ambiguous statutory provisions, even where a court has previously issued a contrary decision and believes that its construction is the better one, provided that the agency's interpretation is reasonable.").
  69. 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.") (internal quotation marks omitted) (summary order); accord 8 CFR 1240.46(a); 8 U.S.C. § 1229a(b)(5)(A); Mondaca-Vega v. Lynch, 808 F.3d 413, 429 (9th Cir. 2015) (en banc) ("The burden of proof required for clear, unequivocal, and convincing evidence is greater than the burden of proof required for clear and convincing evidence."), cert. denied, 137 S.Ct. 36 (2016); 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); Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006); Matter of Pichardo, 21 I&N Dec. 330, 333 (BIA 1996) (en banc); Berenyi v. Immigration Dir., 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).
  70. "Subtitle J—Provisions Relating to the Deportation of Aliens Who Commit Aggravated Felonies, Pub. L. 100-690, 102 Stat. 4469-79, § 7342". U.S. Congress. November 18, 1988. pp. 289–90. Retrieved 2018-09-26. Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end thereof the following new paragraph: '(43) The term 'aggravated felony' means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code], or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.'
  71. 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).
  72. Salmoran v. Attorney General of the U.S., ___ F.3d ___, ___, No. 17-2683, p.5 n.5 (3d Cir. Nov. 26, 2018) (case involving cancellation of removal after the LPR has been physically removed from the United States on a bogus aggravated felony charge).
  73. Matter of Cota, 23 I&N Dec. 849, 852 (BIA 2005).
  74. Stanton, Ryan (May 11, 2018). "Michigan father of 4 was nearly deported; now he's a U.S. citizen". www.mlive.com. Retrieved 2018-10-18.
  75. Al-Sharif v. United States Citizenship and Immigration Services, 734 F.3d 207 (3d Cir. 2013) (en banc) (case of an LPR who has been convicted of an aggravated felony but cannot obtain U.S. citizen or be deported from the United States); see also Mobin v. Taylor, 598 F.Supp.2d 777 (E.D. Va. 2009) (same).
  76. "Some citizens being held as illegal immigrants". NBC News. Associated Press. April 13, 2009. Retrieved 2018-10-14. Dozens of Americans have been locked up or thrown out over past 8 years
  77. Agerholm, Harriet (July 11, 2018). "Afghan asylum seeker commits suicide day after being deported from Germany". The Independent. Retrieved 2018-11-01.
  78. Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003).
  79. "Destination USA: 75 million international guests visited in 2014". share.america.gov. 2015-09-24. Retrieved 2018-09-30.
  80. "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.
  81. 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
  82. 8 U.S.C. § 1254a(f) ("Benefits and status during period of temporary protected status").
  83. 8 U.S.C. § 1101(a)(19)
  84. "8 U.S.C. § 1427(e)". U.S. Congress. Legal Information Institute. Retrieved 2018-09-27.
  85. "Justice Department Seeks to Revoke Citizenship of Convicted Felons Who Conspired to Defraud U.S. Export-Import Bank of More Than $24 Million". Office of Public Affairs. U.S. Dept. of Justice (DOJ). May 8, 2018. Retrieved 2018-10-17.
  86. 8 U.S.C. § 1227(a)(2)(A)(vi)
  87. Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) ("Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, see 8 CFR 1239.2(c), (f), or where the Department of Homeland Security fails to sustain the charges of removability against a respondent, see 8 CFR 1240.12(c)."); see also Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998) (en banc).
  88. Chung, Andrew (April 17, 2018). "Supreme Court restricts deportations of immigrant felons". Reuters. Retrieved 2018-11-02. See also Sessions v. Dimaya, 584 U.S. ___ (2018); Mateo v. Att'y Gen., 870 F.3d 228 (3d Cir. 2017).
  89. 8 U.S.C. § 1158(b)(2)(B)(i); see also Matter of G-G-S-, 26 I&N Dec. 339, 347 n.6 (BIA 2014).
  90. 8 U.S.C. § 1158(b)(2)(A)(ii) ("Paragraph (1) shall not apply to an alien if the Attorney General determines that— ... (ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States").
  91. United States v. Vidal–Mendoza, 705 F.3d 1012, 1013-14 n.2 (9th Cir. 2013) ("Voluntary departure is not available to an alien who has been convicted of an aggravated felony.").
  92. See generally Toor v. Lynch, 789 F.3d 1055, 1064-65 (9th Cir. 2015) ("The regulatory departure bar [(8 CFR 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.").
  93. Nken v. Holder, 556 U.S. 418, 443 (2009) (Justice Alito dissenting with Justice Thomas).
  94. United States v. Lanier, 520 U.S. 259, 264-65 n.3 (1997) (internal quotation marks omitted) (emphasis added).
  95. Haand, Jafar (January 30, 2018). "Afghanistan Calls on Trump to Not Deport Afghans". Voice of America (VoA). Retrieved 2018-10-02.
  96. "You Say You're An American, But What If You Had To Prove It Or Be Deported?". National Public Radio (NPR). December 22, 2016. Retrieved 2018-10-18.
  97. Hoffman, Meredith (March 8, 2016). "The US Keeps Mistakenly Deporting Its Own Citizens". news.vice.com. Retrieved 2018-10-18.
  98. Stevens, Jacqueline (September 22, 2011). "Virginia Journal of Social Policy & the Law" (PDF). jacquelinestevens.org. p. 608. Retrieved 2018-10-18.
  99. "UNITED STATES CITIZENS IN DEPORTATION PROCEEDINGS". Northwestern University. 2017. Retrieved 2018-10-18.
  100. 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."); see also Nguyen v. Sessions, __ F.3d ___ No. 17-70251 (9th Cir. Aug. 23, 2018) (regarding the "stop-time rule"); Lopez v. Sessions, ___ F.3d ___, ___, No. 15-72747, p.13 (9th Cir. Aug. 22, 2018) (clarifying that "the structure and text of the statute indicate that the fact of conviction (not the underlying conduct) is the relevant transaction for purposes of the retroactivity analysis."); Esquivel v. Lynch, 803 F.3d 699, 701 (5th Cir. 2015) (same); Calix v. Lynch, 784 F.3d 1000, 1011-12 (5th Cir. 2015) (same); Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014) (same); Jeudy v. Holder, 768 F.3d 595 (7th Cir. 2014) (same); Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006) (same).
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