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Immigration Case Analysis

Persad v. Barr.

In Persad v. Barr, 17-661, the United States Court of Appeals for the Second Circuit held that under the military’s traditional unitary sentencing scheme, a military judgment in which a single sentence of confinement is imposed in connection with multiple counts of conviction may not be presumed to be equivalent to equal, full‐term, concurrent sentences as to each count of conviction.

In 1992, while he was enlisted in the US military, Dasrath D. Persad was charged in military proceedings in connection with the theft, while on guard duty, of government property, specifically, two pair of night‐vision goggles, a video cassette recorder (remember this is 1992), and a computer keyboard and the subsequent wrongful disposal of that property.

Persad pleaded guilty to four violations of the Uniform Code of Military Justice. See 10 U.S.C. §§ 801‐946. One of the violations was larceny of military property (a theft offense). See 10 U.S.C. § 921. Consistent with the military’s then traditional practice of unitary sentencing (i.e., imposing a single sentence for all charges and specifications of which an accused is convicted), the military judge issued a general sentence that imposed as punishment for all four of Persad’s convictions a term of 30 months’ confinement, undifferentiated among the four violations to which he pleaded. He was not turned over to immigration authorities.

Almost 20 years later, in a New York State prosecution brought in 2011, Persad, who had been a civilian for many years, pleaded guilty to one count of attempted menacing in the second degree in violation of New York Penal Law §§ 110 and 120.14. For this conviction, Persad was sentenced to 15 days’ imprisonment and was ordered to comply with a two‐year protection order. In the course of the following year, probably prompted by the attempted menacing misdemeanor conviction, the Department of Homeland Security (“DHS”) began to pursue removal proceedings
against Persad.

The DHS’ decision to pursue removal proceedings rested on its determination that Persad’s 1992 military conviction for larceny constituted an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(G), thus rendering Persad removable. To establish an aggravated felony under that statutory provision, the government must show by clear and convincing evidence that a noncitizen committed a “theft offense” that resulted in a term of imprisonment of “at least one year.” 8 U.S.C. § 1101(a)(43)(G) (Emphasis added).

Remember, the military judge did not link any part of Persad’s total sentence to any individual offense. Rather, consistent with the military’s traditional “unitary sentencing” practice, the judge simply announced the total period of confinement as part of the sentence imposed for the four convictions.

The immigration judge and the Board of Immigration Appeals (“BIA”) determined that.This sentence satisfied Section 1101(a)(43)(G). On petition for review, Persad argued thatthe unitary sentencing scheme employed by the military tribunal precludes the government from showing by clear and convincing evidence that the theft count alone resulted in a sentence of 12 or more months’ confinement.

The 2nd Circuit agreed that the government failed to establish that Persad was convicted of an aggravated felony because it could not demonstrate by clear and convincing evidence that he was sentenced to a term of imprisonment of at least one year for his larceny conviction.

While Persad beat the aggravated felony ground of removal, the 2nd Circuit remanded the case back to the immigration judge to determine whether Persad is removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having committed two or more Crimes Involving Moral Turpitude (“CIMT”), another theory of removal.

2 KANSAS v. GARCIA Opinion of the Court , No. 17–834. Argued October 16, 2019—Decided March 3, 2020

Analysis by James T. Daly

Can States use fraudulent information contained in a Federal I-9 form to prosecute a State crime?

Like most States, Kansas law makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. The Kansas identity theft statute criminalizes the using of any “personal identifying information” belonging to another person with the intent to defraud that person, or anyone else, in order to receive any benefit. Personal identifying information includes, among other things, a person’s name, birth date, driver’s license number, and Social Security number. Logically, Kansas courts interpret the statute to cover the use of another person’s Social Security number to receive the benefits of employment.

The Federal Immigration Reform and Control Act of 1986 (“IRCA”) requires employers and employees to complete the I-9 form. This form is used to verify the employee’s authorization to work in the US. The I-9 form also limits the use of information contained therein. It says that any information contained in or appended to the I-9 form may not be used for purposes other than for enforcement of the Immigration and Nationality Act (“INA”) or other specified provisions of federal law, including those (1) prohibiting the making of a false statement in a federal matter, (2) identity theft, (3) immigration document fraud and (4) perjury.

In addition, 8 U. S. C. §1324a(d)(2)(F) prohibits use of “the employment verification system” “for law enforcement purposes,” apart from the enforcement of the aforementioned federal statutes. As this case will show, prohibiting State law enforcement from using information in the Federal employment verification system to prosecute other crimes is silly.

So the State of Kansas wants to use the I-9 form information to prosecute a State identity theft law . The Respondents are three people who are not authorized to work in this country. In spite of that fact, they secured employment in Kansas by stealing the identity, including the social security numbers, of other people. Then they used the stolen numbers on the I–9 forms that they completed when they applied for work. The respondents also used these same stolen social security numbers when they completed their W–4 and K–4 tax withholding forms.

The State of Kansas used the false information on the W-4 and K-4 forms as evidence to support the charge of identity theft. In all three cases, respondents argued before trial that IRCA preempted their prosecutions. They relied on 8 U. S. C. §1324a(b)(5), which, provides that I–9 forms and “any information contained in or appended to such forms may not be used for purposes other than for enforcement of the INA or other listed federal statutes.”

The State dismissed the charges that were based on I–9’s and agreed not to rely on the I–9’s at trial. This is an absurd result and demonstrates serious flaws in the logic of 8 U.S.C. §1324a(b)(5).

The State maintained, however, that §1324a(b)(5) did not apply to the respondents’ use of the false Social Security numbers on the tax-withholding forms. The trial court allowed the State to proceed with the charges based on the respondent’s using the stolen Social Security numbers on the W-4 and K-9 forms.

The State court convicted all three respondents under one or both of the Kansas laws for fraudulently using another person’s social security number on tax-withholding forms. Three separate panels of the Kansas Court of Appeals affirmed their convictions. Pretty logical result, right? Identity theft ruins people’s lives so people that steal social security numbers should be prosecuted.

On appeal to the Kansas Supreme Court, Respondents reaffirmed their position. A divided Court reversed, concluding that the plain and unambiguous language of 8 U. S. C. §1324a(b)(5) prohibits a State from using any information contained within an I–9 as the basis for a state law identity theft prosecution of someone who uses another’s social security number in an I–9 form.

The court’s position is that any fact to which an employee attests in an I–9 is information that is “contained in” the I– 9, and cannot be used by anyone for any purpose other than the few listed in that Federal provision which as stated above, includes prohibiting the making of a false statement in a federal matter, identity theft, immigration document fraud and perjury.

Now here is the problem with 8 U. S. C. §1324a(b)(5). The Kansas Supreme Court said that the prosecutions in these cases ran afoul of 8 U. S. C. §1324a(b)(5) because the charges were based on respondents’ use in their W–4’s and K–4’s of the same false Social Security numbers that they also inserted on their I–9 forms. As a result, the Kansas statutes were expressly preempted insofar as the social security numbers provided a basis for the prosecutions.

Taken at face value, this theory would mean that no information placed on an I–9 form, including an employee’s name, residence address, date of birth, telephone number, and e-mail address, could ever be used by any entity or person for any reason. Since the fake social security numbers were listed on the I-9 forms, the fake social security number cannot be use to prosecute Kansas’ state identity theft laws.

Luckily, the US Supreme Court rejected this tortured logic. In the decision, the Court described the following beautiful hypothetical: Suppose that an employee truthfully states on his I–9 form that his name is Jim Smith. Under the interpretation of 8 U. S. C. §1324a(b)(5) that the Kansas Supreme Court adopted, no one could use Jim’s name for any purpose. If he robbed a bank, prosecutors could not use his name in an indictment. His employer could not cut a paycheck using that name. His sister could not use his name to mail him a birthday card.

The US Supreme Court reversed the Kansas Supreme Court and remanded the case back the them so they could reenter the world of reality and issue a decision that is logical. 8 U. S. C. §1324a(b)(5) must be repealed.

Father of the Year Award

Analysis by James T. Daly

US Court of Appeal for the Third Circuit, No. 18-1342
Adamu Sumaila, Petitioner, v. Attorney General of the United States of America, Respondent.

This year’s award for Father of the Year goes to the father of Adamu Sumaila of Ghana.

Adamu Sumaila fled his home country of Ghana and entered the United States without authorization after his father and neighbors assaulted him and threatened his life when they discovered that he was in a same-sex relationship.

Here is what happened: One morning in January 2016, Adamu’s father unexpectedly entered his son’s bedroom at the break of dawn and discovered him having sex with another man. His father went into a rage and began shouting that his son was having sex with another man and called on others to “come and witness what my son is up to.” He demanded answers from his son and condemned his actions. The father said, “Why do you engage in homosexuality? You have brought shame to this family and I will make sure you face the wrath of this evil deed.”

Upon hearing this uproar, a mob of neighbors gathered at Adamu’s house. Together with his father, the mob began to beat Adamu and his friend with stones, wooden sticks, and iron rods, and dragged them into a courtyard. Some in the mob wanted to report the young men to the police, but others began to argue over how best to punish them: death by burning or beheading. Adamu believed the death threats were real and he remembers being doused with kerosene, and hearing calls to set him on fire.

Adamu eventually entered the United States illegally and as a result, the Department of Homeland Security began proceedings to remove him and return him to Ghana. In the course of removal proceedings, he applied for asylum, among other forms of relief. He claimed that, after having been violently outed, attacked and threatened by his father and neighbors, he fears that he will be killed or otherwise persecuted in Ghana because he is gay.

The immigration judge (“IJ”) denied Adamu’s application concluding that he had not established “past persecution” or a “well-founded fear of future persecution.” The IJ observed that there was no reason to believe that Adamu would not be able to live a full life, especially if he were to continue to keep his homosexuality a secret. Adamu appealed to the Board of Immigration Appeals (“BIA”).

The BIA agreed with the IJ’s decision and dismissed the appeal. Though it credited Adamu’s account as credible, the BIA agreed that he had not established “past persecution” or a “well-founded fear or clear probability of future persecution.” Adamu appealed to the US Court of Appeal for the Third Circuit.

The government’s position was that the attack and death threats Adamu suffered were not serious enough to rise to the level of persecution. The Court found it odd for the Government to make this argument considering that Adamu was threatened with death by fire or decapitation while being assaulted and doused with fuel. All that was left for the mob to do was to cut off his head or set him on fire.

Ghanaian law deprives gay men such as Adamu of any meaningful recourse to government protection and that reporting his incident would have been futile and potentially dangerous. Ghana criminalizes same-sex male relationships under the guise of “unnatural carnal knowledge,” defined to include “sexual intercourse with a person in an unnatural manner or with an animal.” The text of this law, equating same-sex male relationships to sex with an animal, is already a clear indication of the government’s official position on gay men. Don’t look for a Gay Pride Parade anytime soon.

The US State Department’s and Amnesty International’s country reports concur that anti-gay discrimination, harassment, and violence are a country-wide human rights problem, due in large part to the fact that same-sex male relationships are criminalized and discrimination against lesbian, gay, bisexual, transgender and intersex (“LGBTI”) persons is not illegal.

The Court concluded that because Adamu suffered past persecution and has a well-founded fear of future persecution on account of his sexual orientation and identity as a gay man, he qualifies as a refugee and vacated the BIA’s decision and remanded the case for further proceedings consistent with its opinion. Great decision!

US Court of Appeal for the Third Circuit, No. 18-1342
Adamu Sumaila, Petitioner, v. Attorney General of the United States of America, Respondent.



This case regarding the U.S. Department of Homeland Security’s rescission of the
Deferred Action for Childhood Arrivals (“DACA”) policy is on remand from the Fourth Circuit Court of Appeals. On March 12, 2018, Judge Titus granted in part and denied in part Defendants’ motion to dismiss or, in the alternative, for summary judgment. Memorandum Order, ECF No. 46, amended by ECF No. 49 (Mar. 15, 2018). On appeal, the Fourth Circuit affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded. Judgment, ECF No. 83, published at Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d 684 (4th Cir. 2019).

The Fourth Circuit held that “the Department’s decision to rescind DACA was arbitrary
and capricious and must be set aside.” Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 705. Therefore, the Fourth Circuit “reverse[d] the district court’s ruling sustaining the rescission of the policy as valid under 5 U.S.C. § 706(2)(A)” and “vacated [DACA’s rescission] as arbitrary and capricious.” Id. at 706. Likewise, in separate challenges to the DACA rescission, on June 18, 2020, the Supreme Court held that the rescission of DACA “was arbitrary and capricious in violation of the APA.” Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1915 (2020). The DACA rescission occurred on September 5, 2017. See Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 693–94. Therefore, the Fourth Circuit explained that its Judgment vacating the DACA rescission “restores DACA to its pre-September 5, 2017, status . . . .” Id. at 706.

Plaintiffs also challenged the September 5, 2017 changes to DACA’s information-sharing policy and requested an injunction based on equitable estoppel. Judge Titus granted the injunction, but the Fourth Circuit held that “Plaintiffs could not reasonably believe that the information they provided as part of their DACA application would never be used for immigration enforcement purposes” and “Plaintiffs’ equitable estoppel claim thus necessarily fails.” Id. at 705–06. Accordingly, the Fourth Circuit “reverse[d] the district court’s ruling finding Plaintiffs entitled to injunctive relief on equitable estoppel grounds, reverse[d] the grant of summary judgment in Plaintiffs’ favor, and vacate[d] the injunction.” Id. at 706. Nonetheless, the Fourth Circuit explained that its decision “restor[ing] DACA to its pre September 5, 2017, status, render[ed] a nullity the information-sharing policies announced on September 5.” Id. at 706.

Finally, the Fourth Circuit dismissed Plaintiffs’ constitutional claims. The Fourth Circuit
“decline[d] to decide whether DACA’s rescission violates the Fifth Amendment’s due process and equal protection guarantees under the ‘well established principle governing the prudent exercise of this [c]ourt’s jurisdiction that normally the [c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the case.’” Id. (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)) (alterations in original). The Fourth Circuit “also decline[d] to decide whether Plaintiffs’ Fifth Amendment rights were violated by the policies announced on September 5, 2017, regarding the sharing of personal information from DACA applicants” given that its decision “render[ed] a nullity the information-sharing policies announced on September 5.” Id. Therefore, the Fourth Circuit “vacate[d] the district court’s judgment on these issues and dismiss[ed] those claims.” Id. at 706–07.

The Fourth Circuit remanded this case to this Court for further proceedings consistent
with its Judgment. Id. Based on the foregoing, all of the issues in this case have been
determined. Therefore, in accordance with the Judgment of the Fourth Circuit Court of Appeals, ECF No. 83, and the Supreme Court’s decision in Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020), it is this 17th day of July, 2020, by the United States District Court for the District of Maryland, hereby ORDERED that:

1. The Court ADJUDGES AND DECLARES that the DACA rescission and actions taken by Defendants to rescind the DACA policy are arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A);1

2. The rescission of the DACA policy is VACATED, and the policy is restored to its pre-September 5, 2017 status;2

3. Defendants and their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, are ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA that is not in compliance with applicable law;3

4. Plaintiff’s estoppel claim and request for an injunction as it pertains to DACA’s information-sharing policies are DENIED;4

5. Nonetheless, because this Order restores the DACA policy to its pre-September 5, 2017 status, the information-sharing polices announced on September 5, 2017 are VOID;5

6. Under the doctrine of constitutional avoidance, and given that the informationsharing policies announced on September 5, 2017 are void, this Court does not address Plaintiffs’ constitutional claims and those claims are DISMISSED;6

7. The Clerk SHALL CLOSE this case.