7 Cir: Posner tells BIA to follow precedent; person who leaves & returns is seeking admission

By University of Denver Sturm College of Law

Aug 27, 2013

In an opinion that has become characteristic of his stance toward the Board of Immigration Appeals, Judge Posner, writing for a panel of the U.S. Court of Appeals for the Seventh Circuit, told the Board that it can’t just ignore its own precedent: a noncitizen with a criminal history who leaves the country and seeks to return must be treated as a person seeking admission. Margulis v. Holder, No. 12-3611, slip op. (7th Cir. Aug. 5, 2013) (Posner, Manion, and Rovner, J.). Mr. Margulis was successfully represented by Valparaiso University Law School’s Immigration Clinic, run by Professor Geoffrey Heeren, with third-year student Yolanda Ruiz arguing before the court.

This case involved an LPR with a minor criminal history who left the country by car and entered Canada. Canadian immigration officers refused to allow him to go further into the country and immediately sent him back into the United States. At the U.S. side of the border, immigration officers learned of his criminal history, allowed him to proceed to his home in Illinois, but placed him in removal proceedings under INA § 237(a)(2) as a person subject to deportation because of a criminal conviction. Margulis, No. 12-3611, slip op. at 2.

In immigration court, Margulis asked that his deportation proceedings be terminated and instead that he be placed in inadmissibility proceedings under INA § 212. His hope was to seek a waiver of inadmissibility for certain convictions pursuant to INA § 212(h). The BIA refused, ruling that Margulis “was not an arriving alien because he was never lawfully admitted to another country, and therefore never effected a departure from the United States.” Margulis, No. 12-3611, slip op. at 3.

The court sharply disagreed with the BIA’s conclusion based on the ordinary meaning of “departure” and its reading of a relevant regulation. It would be “absurd,” the court explained, to claim that someone who left the United States but never informed the country which he visited because he was persona non grata–and therefore was never formally allowed to enter that country—had “never effected a departure from the United States.” Margulis, No. 12-3611, slip op. at 3-4. Likewise, the Board’s reasoning that Margulis didn’t depart the United States because Canada refused him entry contradicts a regulation which states “that ‘the term depart from the United States means depart by land, water, or air: (1) From the United States for any foreign place.’” Margulis, No. 12-3611, slip op. at 4 (quoting 8 C.F.R. § 215.1(h)). As the court put it, “[t]hat’s an exact description of what Margulis did.” Margulis, No. 12-3611, slip op. at 4.

The Board also concluded that Margulis was ineligible for a § 212(h) waiver because 8 C.F.R. § 1245.1(f) requires that this waiver be sought through an application for adjustment of status if the applicant is already in the United States. The court again disagreed with the BIA’s analysis. In a 1980 decision, Matter of Sanchez, 17 I&N Dec. 218, 223 (BIA 1980), the court explained, the Board held that a waiver of inadmissibility may be granted in a deportation proceeding “when, at the time of the alien’s last entry, he was inadmissible because of the same facts which form the basis of his deportability.” Margulis, No. 12-3611, slip op. at 5. In other words, a person in deportation proceedings can seek a § 212(h) waiver if the same conviction that makes him deportable now made him inadmissible when he last entered the United States.

The BIA’s reliance on the regulation requiring that § 212(h) waivers be sought through an adjustment of status application “is very strange,” the court wrote, “since materially identical language has appeared in regulations since at least 1964—more than fifteen years before the Sanchez decision….” Margulis, No. 12-3611, slip op. at 6. While the Board can overrule Sanchez or any other of its precedential opinions, it “must give reasons for abandoning a precedent” and “ it didn’t do that in this case. It ignored it. This is not permissible” Margulis, No. 12-3611, slip op. at 6.

Margulis’ travel history let the court easily conclude that he met the condition required by Sanchez. Prior to leaving for Canada, Margulis had traveled to Canada twice before and Venezuela once—never with any immigration troubles on his way back. Margulis, No. 12-3611, slip op. at 5, 6. On each of those occasions, though, he had the same criminal history that got him into problems this time around. Had he been “‘caught’ returning from one of his previous foreign trips and placed in admissibility proceedings,” he would have been able to seek the § 212(h) waiver that he now asks for. Margulis, No. 12-3611, slip op. at 6. Until the Board overrules Sanchez explicitly, it “entitle[s] him to seek in his current removal proceeding the waiver of inadmissibility that he could have sought in an admissibility proceeding upon return from one of those earlier trips.” Margulis, No. 12-3611, slip op. at 6.

The court closed by noting that, after oral arguments were heard, the Board did overrule Sanchez. Margulis, No. 12-3611, slip op. at 7-8 (discussing Matter of Rivas, 26 I&N Dec. 130 (BIA 2013)). Because that decision was based on the Board’s review of congressional intent, thought, it’s ripe for review and unclear whether this applies retroactively. As such, this development did not affect this case.