Long-Term Residents Watch from Detention As Case Law Shifts in Appellate Court

Jul 28, 2017

One January night a few years ago, Hamed*, a lawful permanent resident from Iran who has lived in the United States for nearly 20 years, was attacked at night by a group of three intoxicated muggers while working by himself at the Virginia convenience store he managed. During the assault, one of the muggers pulled out a boxcutter knife, and in the struggle that ensued, the knife fell to the ground. In self-defense, Hamed grabbed the knife from the floor and used it against one of the muggers. One of the attackers called the cops, and Hamed was arrested. Facing a lengthy sentence and an uncertain trial, and without knowledge of the immigration consequences that would arise as a result, Hamed pled guilty to unlawful wounding. It was his first and only criminal offense after almost two decades living in the United States.

After Hamed had served his sentence and was released early on good behavior, he was immediately detained by Immigration and Customs Enforcement (ICE) and placed in deportation proceedings. Hamed’s criminal defense attorney never told him that he would be deportable as a result of pleading guilty to unlawful wounding - but he was. By the time he was aware of the error that his defense attorney had made, it was too late for him to undo the conviction. According to ICE, the conviction was an “aggravated felony,” which made Hamed ineligible for almost every defense against deportation. On top of that, he was subject to mandatory detention in ICE custody for the duration of his removal case.

But Hamed, like other lawful permanent residents, had a glimmer of hope. CAIR Coalition and other advocates had been making the complex legal argument that the Virginia unlawful wounding statute was not an aggravated felony under the categorical approach, which is the legal analysis that immigration judges are obliged to apply to determine if a state crimes triggers immigration consequences. CAIR Coalition had recently won a number of cases before the immigration court and the Board of Immigration Appeals arguing that Virginia unlawful wounding is not an aggravated felony, but those cases were all still pending on appeal.

Hamed, like other long-term lawful permanent residents with similar convictions, was forced to wait while his case went through the lengthy appeals process. Even though the immigration judge initially agreed with Hamed’s argument that his unlawful wounding conviction was not an aggravated felony under the categorical approach, the judge denied Hamed’s request to be released on bond while the government appealed his case to the higher court. As a result, Hamed spent well over a year in ICE detention, but he didn’t give up hope. His entire family, including his U.S. citizen child, was in the United States, and he couldn’t imagine a life anywhere else. He was willing to fight as long as it would take in order to stay united with his family here.

The case law was looking good for Hamed – until, suddenly, in June of 2017, two precedential decisions from the U.S. Court of Appeals for the Fourth Circuit (which has jurisdiction over all cases arising in immigration courts in Maryland and Virginia) presented significant challenges to his arguments. Those two cases, In re Irby, 858 F.3d 231 (4th Cir. 2017) and United States v. Reid, 861 F.3d 523 (4th Cir. 2017), together relied on a U.S. Supreme Court case from a separate context called United States v. Castleman, 134 S. Ct. 1405 (2014), even though the Supreme Court in Castleman had explicitly stated that its decision should not be extended to other contexts outside its limited scope.

As a result of these poorly reasoned Fourth Circuit decisions, the argument that had carried Hamed’s case so far is now more challenging, casting his case and the cases of many others like him into jeopardy. Hamed has now spent almost a year and a half in immigration detention, and his chances to fight deportation are dimmer than ever. But he remains committed to fighting to remain with his family in any way he can. For a person who has formed his entire life here in the United States, for so many years – what other choice does he have?

*A pseudonym and a different country have been used to protect client confidentiality.