Fault Lines
15 August 2017

Judge Posner’s Decision In Robledo-Soto Speaks Volumes

January 16, 2017 (Fault Lines) — In immigration court, the basis for a defendant’s respondent’s “good cause” for continuance of trial an individual hearing is governed by the Board of Immigration Appeals’ Opinion of Matter of Hashmi, which held that:

In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.

Notice what’s not listed as a factor? A collateral matter in criminal court. Quite often, a respondent is trying to clean up the mess in criminal court that landed him in immigration court in the first place. It’s usually too damn late to do so by the time his file lands in the immigration dock, as per the Padilla v. Kentucky’s lack of retroactivity.

The problem is that separate courts have their own dockets, and an immigration judge will (understandably?) be hesitant to grant a third continuance so that said respondent may get a conviction vacated. But as far as expunging a conviction, that’s a road to nowhere when it comes to getting results in immigration land. Hence, the surprise when the 7th Circuit Court of Appeals opinion in Robledo-Soto v. Lynch began as follows:

Robledo‐Soto, the petitioner, a Mexican citizen facing removal (deportation) to Mexico, sought to postpone his removal proceeding so that he could expunge a drunk‐driving conviction and if he succeeded in doing that try to persuade the Department of Homeland Security to drop its efforts to seek his removal.

The Department’s Immigration and Customs Enforcement division (ICE) prosecutes removal cases (technically removal cases are civil, realistically they are closer to being criminal); and if ICE decides not to prosecute, the alien goes scot‐free. Although Robledo‐Soto’s drunk‐driving conviction had not been the basis for the Department’s seeking to remove him— the basis was that he’d entered the United States without being authorized to do so, see 8 U.S.C. § 1182(a)(6)(A)(i)—it did make him a priority for removal, and he hoped that if the conviction was expunged from his record he could convince the Department to exercise its prosecutorial discretion not to seek his removal.

Uno, ICE couldn’t care less if someone’s conviction is expunged or not for any purpose, removal proceedings included. So long as someone’s criminal record is visible as per the feds’ National Crime Information Center (“NCIC”) report, it’s fair game for immigration prosecutors to use it in deportation proceedings.

The purpose of sealing or expunging a criminal record is to make it unseen from future dates’ employers’ prying eyes once a case has been dismissed by the government or been acquitted by a jury. Expunged or not, Robledo-Soto’s DUI conviction makes him an ICE “enforcement priority,” as per DHS Secretary Jeh Johnson’s (outdated?) 2014 memorandum. And the word “expunged” that appears in the 7th Circuit’s opinion is notably absent from the Johnson memo, which is cited by its author, Circuit Judge Richard Posner.

Dos, even if ICE decides not to prosecute, the “alien” does not go “scot-free.” If Robledo-Soto gets spared of the government’s wrath during deportation proceedings, and he does not have a pathway to legal permanent residency, he remains in immigration purgatory limbo: not in removal proceedings, but without papers. That’s where President Obama’s DACA or DAPA would land eligible applicants: not in immigration court, but still without a way to get their papers.

It’s obvious that Judge Posner is fed up with the immigration system and the way that it snares people like Robledo-Soto, who are otherwise good denizens. In  a recent case, Judge Posner referred to immigration court as:

The least competent federal agency, though in fairness it may well owe its dismal status to its severe underfunding by Congress, which has resulted in a shortage of immigration judges that has subjected them to crushing workloads.

But as the Robledo-Soto opinion shows, even the most enlightened law clerks jurists don’t have a clear understanding what gets you in/out of ICE’s grasp. The Court is obviously frustrated that someone like Robledo-Soto is deportation bound, but it doesn’t even cite the Matter of Hashmi decision, which is the relevant precedent that determines whether Robledo-Soto deserves a continuance.

If I was wearing the judge’s robe in Robledo-Soto’s case, I would’ve rule that he was not entitled to a continuance. He’s got no relief from deportation, no immigration petition pending before USCIS. All he’s got is a pending collateral criminal proceeding to expunge. That’s aside from the fact that the immigration court dockets are insanely backlogged, which is not a factor under Matter of Hashmi, but still.

But, as the court notes, Robledo-Soto is the parent of three U.S. citizen children. So, unless he’s barred otherwise, he’s a slam dunk candidate for a waiver of deportation under section 212(h) of the Immigration and Nationality Act. Here’s hoping that his immigration attorney doesn’t fall into the basket of the criminally incompetent for not gunning for that waiver.

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