The Volokh Conspiracy
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Interesting Third Circuit Statutory / Procedural Immigration Case
A short excerpt from today's long opinion by Judge Arianna Freeman, joined by Judge Cheryl Ann Krause, in Qatanani v. Attorney General:
The Supreme Court has long recognized that the admission and exclusion of noncitizens is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." But in that endeavor, both political branches have particular roles to play.
On the one hand, the Executive has authority to enforce the immigration laws passed by Congress and to exercise the discretion Congress delegates to it. On the other hand, "the formulation of [immigration] policies is entrusted exclusively to Congress." Indeed, there is "no conceivable subject" over which the "legislative power of Congress [is] more complete" than the admission and exclusion of noncitizens. In this balance, it is the Judiciary's exclusive province to resolve separation-of-powers questions. So where an administrative agency purports by regulation to evade procedures mandated by Congress in the Immigration and Nationality Act ("INA"), it is incumbent upon us to intervene. We do so here.
In 1996, Mohammad M. Qatanani was admitted to the United States on a work visa. In 1999, he applied under 8 U.S.C. § 1255(a) to adjust his immigration status to that of a Lawful Permanent Resident ("LPR"). After lengthy proceedings regarding Qatanani's application, an Immigration Judge ("IJ") twice made fact findings and credibility determinations in Qatanani's favor and granted his application to adjust to LPR status. The IJ issued those orders in 2008 and 2020, respectively.
The IJ's 2008 order never became final; the Department of Homeland Security ("DHS") appealed the order within the 30-day period permitted for it to do so. On appeal, the Board of Immigration Appeals ("BIA") vacated the IJ's order and remanded the matter to the IJ for further proceedings. Those proceedings led to the IJ's April 2020 order that again granted Qatanani's application to adjust to LPR status.
DHS did not appeal the IJ's April 2020 order within 30 days, so that order became final. As part of Congress's regime for adjustment to and recission of LPR status, the Attorney General was then required to memorialize that final order by recording Qatanani's admission with LPR status as of the date of the IJ's April 2020 order. And Congress specified how the Attorney General could rescind that LPR status if warranted: Within five years of the adjustment date, the Attorney General could commence proceedings pursuant to § 1256(a).
But here, the Attorney General evaded that statutory path. Instead, the BIA invoked an agency regulation to "self-certify" an appeal of the IJ's April 2020 order eleven months after that order issued. And at the conclusion of those self-certified appeal proceedings, the BIA issued an order purporting to reverse the IJ's April 2020 order and to order Qatanani removed from the United States. Qatanani petitioned us for review of the BIA's decision.
The BIA exceeded its authority when it attempted to undo Qatanani's adjustment to LPR status by using an agency regulation in a manner inconsistent with the procedures set out by Congress in the INA. Accordingly, we granted Qatanani's petition for review and vacated the BIA's order….
Qatanani is Palestinian and a citizen of Jordan. He was born in the West Bank and lived there until he finished high school. In 1982, he began studying at the University of Jordan, where he earned his bachelor's and master's degrees and a Ph.D. In 1989, he began working as an Imam in Jordan.
In 1993, Qatanani traveled to the West Bank with his wife and children to renew his residency card. While there, he was detained, beaten, and interrogated by the Israeli military. Upon his release, Israeli authorities renewed Qatanani's residency card.
In 1996, Qatanani was admitted to the United States, along with his wife and then four children, on a non-immigrant H1-B visa to serve as an Imam at the Islamic Center of Passaic County ("Islamic Center") in Paterson, New Jersey. In 1998, the Immigration and Naturalization Service determined that Qatanani was eligible to receive an immigrant visa. On April 1, 1999, when his H1-B visa was set to expire, Qatanani applied to adjust his status to LPR. On his application form ("I-485 application"), Qatanani checked a box stating that he had not been arrested or imprisoned for violating a law or ordinance within or outside the United States.
In 2005, while his I-485 application was still pending, Qatanani requested a meeting with the Federal Bureau of Investigation ("FBI") and Immigration and Customs Enforcement ("ICE") to inquire about the reason for the delay. In February 2005, an FBI agent and an ICE agent conducted a voluntary interview in which Qatanani disclosed that the Israeli military detained him in the West Bank in 1993. The agents informed United States Citizenship and Immigration Services ("USCIS") that Qatanani had been arrested and possibly convicted in the West Bank, and officials reached out to Israeli authorities to obtain records.
In May 2006, USCIS interviewed Qatanani regarding his I-485 application. The USCIS officer presented a declaration executed in January 2006 by the FBI agent who conducted the February 2005 interview. Qatanani and his counsel, who were seeing the declaration for the first time, objected that its contents were inaccurate and that they needed more time to review the document. The interview was terminated soon thereafter, and there was no subsequent USCIS interview.
In July 2006, USCIS denied Qatanani's I-485 application. It stated that Qatanani was inadmissible because he made a material misrepresentation in his application. Relying on the FBI agent's declaration, USCIS found that, in the February 2005 interview, Qatanani admitted that he was arrested, pleaded guilty to a crime, and was imprisoned for three months by Israeli authorities in the West Bank in 1993. Accordingly, USCIS found that Qatanani made a material misrepresentation when he stated on an immigration form that he had never been arrested, charged, or imprisoned for violating any law or ordinance. USCIS also denied Qatanani's application in the exercise of discretion.
That same day, ICE placed Qatanani in removal proceedings. Qatanani appeared before the Newark Immigration Court and conceded his removability. As relief from removal, he renewed his request for adjustment of status before the Immigration Court.
After receiving voluminous documents in evidence and holding a hearing over four days, the IJ granted Qatanani's application for adjustment of status. In a lengthy opinion issued in 2008, the IJ found that Qatanani was admissible and that he merited adjustment of status as a matter of discretion.
The IJ rejected the two grounds upon which DHS claimed that Qatanani was inadmissible. The first ground was alleged engagement in terrorist activity. Specifically, DHS claimed that Qatanani provided material support to Hamas. DHS based this claim in large part on documents it obtained from the Israeli military. Those documents state that, in 1993, a military court convicted Qatanani of two charges: (1) membership in an unlawful association (specifically, Hamas) and (2) performing a service for an unlawful association.
The IJ conducted a detailed discussion of the evidence. Among other concerns, the IJ stated that the documents from the Israeli military were premised on a written confession that was absent from the record. The IJ found that the military court was internationally stigmatized for failing to meet fair-trial standards, and even the Israeli Supreme Court had condemned it for abusive treatment to coerce confessions from detainees during the time of Qatanani's detention. The IJ also found it "perplex[ing]" and "remarkable" that the Israeli military would convict Qatanani (who refused to cooperate or become a spy for Israel) of being a member of Hamas and then release him after three months and renew his West Bank residency permit. Because the military court documents were "highly questionable, fail to clarify the identity of the respondent[,] and border on being, flatly stated, unreliable," the IJ gave the documents "very low evidentiary weight." He found they did not prove Qatanani engaged in terrorist activity.
In addition to the military court documents, two DHS witnesses—the FBI agent and the ICE agent who interviewed Qatanani in 2005—testified that Qatanani admitted during the interview that he was arrested for being a member of Hamas. In Qatanani's own testimony, he maintained that he had not done so. The IJ found Qatanani credible. But the IJ recounted numerous examples of the FBI agent's evasive, unresponsive, implausible, and contradictory answers that caused the IJ to disregard the FBI agent's testimony as unreliable. The IJ also explained that the ICE agent contradicted herself in her testimony, which was further undermined by DHS's failure to present the documents the ICE agent reviewed to prepare for her testimony. As a result, the IJ did not credit either agent, leaving Qatanani as the "only one of the three that has been consistent" about whether he was detained in 1993 or whether he was arrested and convicted.
The other grounds DHS raised to support its allegation that Qatanani engaged in terrorist activity were Qatanani's possible associations with members of Hamas and his one-time transfer of money to the West Bank. But, upon review of the evidence, the IJ found none of Qatanani's associations were improper, and DHS presented no evidence that the money Qatanani transferred to the West Bank came from an illegal source or was used for an illegal purpose. So the IJ found that Qatanani was not inadmissible for having engaged in terrorist activity….
[More details available in the opinion. -EV] …
And a short excerpt from Judge Paul Matey's long dissent:
For more than a quarter century, five Presidents and ten Attorneys General have objected to Mohammad Qatanani's presence in our Nation. After his three-year allowance ended in 1999, these Executives and their representatives determined, over and again, that Qatanani must leave. Yet today, this Court makes him a lawful permanent resident because we have lost the "respect for the functions of the other branches," which was grounded in "a judicial attitude founded in law and hallowed by time" that "sees judicial review of agency action and executive action as sensitive business" deserving deference. Our decision today forgets that humility and adds another impediment to the Executive's ability to carry out his duty to take care of immigration matters, a power that is both derived from congressional will and inherent in any sovereign.
Nearly thirty years ago, the same year Qatanani arrived for his "temporary" visit to the United States, Congress, in an action praised by then-President Clinton as a "landmark immigration reform" that "strengthens the rule of law by cracking down on illegal immigration at the border,"1 acted to "'protec[t] the Executive's discretion' from undue interference by the courts." I would respect that political judgment, mindful that "[n]o one, so far as my search of the several constitutional records uncovered, look[s] to the Court for 'leadership' in resolving problems that Congress, the President … failed to solve." So with due regard for the political branches' control over immigration, I would dismiss Qatanani's petition….
{As the majority notes, Qatanani was detained and questioned by Israeli forces upon crossing into the West Bank from Jordan in 1993. From 1985 to 1991, Qatanani was an active member in the Muslim Brotherhood, which led to Israeli suspicion that Qatanani was a "member of the Islamic Resistance Movement; also known as HAMAS" because "HAMAS had been formed from the Muslim Brotherhood" in 1987. The same year Qatanani was detained by Israeli forces, Qatanani met with his now deceased brother-in-law, Sumaia Abu Hanoud, whom Qatanani himself described as the "military leader of HAMAS." Despite Qatanani's acknowledgment of Hanoud's leadership in Hamas, Qatanani's wife and her brothers have "denied the relationship between Mr. Hanoud and HAMAS when questioned by the U.S. authorities."}
[Here too, more details available in the opinion. -EV] …
For more on Judge Matey's First Amendment analysis (which goes beyond the statutory and procedural questions that the panel majority focused on), see this post.
