Immigration

• Jurisdiction: United States,Federal
• Publication year: 2016
• Citation: Vol. 67 No. 4

Immigration

Charles H. Kuck

Keith N. Jensen

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Immigration

by Charles H. Kuck^* and Keith N. Jensen^**

During the January 1, 2015 to December 31, 2015 survey period, the Eleventh Circuit courts decided hundreds of cases affecting immigration law. The following is a discussion of some of those decisions that clarified important issues pertaining to immigration law in the Eleventh Circuit.

I. Subject Matter Jurisdiction Requirements for Judicial Review of Immigration Cases

In Indrawati v. United States Attorney General,¹ the United States Court of Appeals for the Eleventh Circuit reaffirmed the jurisdictional requirements for its review of immigration cases, holding that the appellant did not exhaust her administrative remedies, resulting in the dismissal of two of her three claims brought on appeal.² The Eleventh Circuit held that it lacks subject matter jurisdiction to review a final order in an immigration case, unless the petitioner has exhausted all available administrative remedies.³ The court summarized that this requires the petitioner to have presented the issue on appeal before the Board of Immigration Appeals (BIA) with sufficient factual and legal

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discussion to enable a legitimate review of the immigration judge's holding.⁴ This serves two purposes: (1) it prevents interference with administrative procedure and (2) it ensures the administrative agency, charged with review of the issue, is not avoided in its responsibility to review the issue on appeal prior to an appellate decision.⁵

The Eleventh Circuit denied review of Indrawati's claims that she was denied both a sufficient opportunity to address the discrepancies between her asylum application and testimony before the immigration court and that she was denied due process by the immigration court's admission of a memorandum drafted by the Texas Service Center, which was based upon an interview conducted with Indrawati's mother that contradicted her asylum claim.⁶ The court reasoned that Indrawati failed to exhaust her administrative remedies by not addressing either of these arguments in her appellate brief submitted to the BIA.⁷ Thus, the Eleventh Circuit held that it lacked the requisite subject matter jurisdiction to resolve those two issues on appeal.⁸

The United States District Court for the Southern District of Georgia applied this same standard to a petitioner who filed an action for a writ of habeas corpus while he was detained in Immigration and Customs Enforcement (ICE) custody. The district court in Thomas v. ICE,⁹ refused to consider petitioner's claim that his ICE detainer should be terminated because he should be released into treatment at a halfway house, rather than detained by ICE, which negatively impacted his public safety factor and resulted in a longer sentence.¹⁰ The magistrate judge dismissed the claim, finding that the petitioner had not exhausted his administrative remedies and thus the court did not have subject matter jurisdiction.¹¹

Further, the petitioner argued that he was eligible for United States citizenship through his status as a stepchild of a United States citizen prior to turning eighteen.¹² The court also dismissed this claim for lack of subject matter jurisdiction as the petitioner had not exhausted his administrative remedies.¹³ Here, the petitioner filed the appropriate application with the United States Citizenship and Immigration Services

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(USCIS), Form N-600.¹⁴ However, that application had not yet been adjudicated, and thus the court did not have subject matter jurisdiction to review the pending application prior to an initial adjudicatory decision and subsequent administrative appellate processes for review.¹⁵

II. Reasonable Consideration and Administrative Review

The Eleventh Circuit's holding in Indrawati also clarified the degree to which the BIA is required to review decisions on appeal.¹⁶ The Eleventh Circuit cited Indrawati in a recent unpublished opinion,¹⁷ stating,

In making this assessment, the agency shall consider "all evidence relevant to the possibility of future torture." However, each claim or piece of evidence presented by the petitioner need not be specifically addressed—a decision-maker may omit discussion of some evidence and still give reasoned consideration. We will remand only when the decision was so lacking in reasoned consideration that review becomes impossible.¹⁸

III. Southern District of Florida Holds Administration of Involuntary Nutrition Constitutional

In Department of Homeland Security, Immigration & Customs Enforcement v. Ayvazian,¹⁹ the United States District Court for the Southern District of Florida granted an emergency court order granting permission to administer involuntary nutrition to three noncitizens in ICE detention.²⁰ There, three noncitizens started a hunger strike to protest their detention.²¹ A medical official for the Department of Homeland Security (DHS) testified that due to the hunger strike, ICE had three available options: (1) let the protesting individuals die, (2) administer involuntary nutrition, or (3) end the detention of the three individuals participating in the hunger strike.²² The court found the

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first and third options unreasonable and approved the motion to administer involuntary nutrition to the detainees.²³

IV. Classification of Aggravated Felonies and Crimes Involving Moral Turpitude

In Walker v. United States Attorney General,²⁴ the Eleventh Circuit held that operating a "chop shop" is an aggravated felony offense and in the alternative that it is a crime involving moral turpitude (CIMT) under the categorical approach.²⁵ Under the Immigration and Nationality Act (INA),²⁶ an alien who commits an aggravated felony is removable.²⁷ Under 8 U.S.C. § 1227(a)(2)(A)(ii),²⁸ a noncitizen who commits more than two crimes involving moral turpitude is removable.²⁹ A noncitizen who admits committing a CIMT or who admits committing acts that constitute the essential elements of a CIMT is inadmissible.³⁰ The Florida statute at issue specifically...