Siddiqui v. Holder, s. 09–3912

• Decision Date: 12 January 2012
• Docket Number: 10–1282,10–3221.,Nos. 09–3912,s. 09–3912
• Citation: 670 F.3d 736
• Parties: Mohsin H. SIDDIQUI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

670 F.3d 736

Mohsin H. SIDDIQUI, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 09–3912

10–1282

10–3221.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 2011.Decided Jan. 12, 2012.

Recognized as Invalid

8 C.F.R. § 245a.1(g) Devin Theriot–Orr (argued), Attorney, Gibbs Houston Pauw, Seattle, WA, for Petitioner.

Anthony W. Norwood (argued), Joseph A. O'Connell, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

Mohsin H. Siddiqui, a native of Pakistan, appeals the denial of his legalization applications by the Administrative Appeals Office (“AAO”), the appellate body of the U.S. Citizenship and Immigration Services (“USCIS”). Siddiqui disputes the AAO's finding that he failed to prove his continuous residence in the United States and the AAO's retroactive application of the definition of “conviction,” found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104–208, 110 Stat. 3009, to his 1991 felony.

We are unable to affirm the AAO's conclusion regarding Siddiqui's failure to establish continuous residence because the AAO's decisions lack individualized analysis and do not identify particular deficiencies in the substantial evidence submitted by Siddiqui. Further, we conclude that the AAO erred in applying IIRIRA's definition to Siddiqui's offense because Congress did not clearly express its intent to apply the definition retroactively to individuals such as Siddiqui, whose legalization applications would have been adjudicated prior to the enactment of IIRIRA if the government had not unlawfully refused in late 1980s to accept applications from applicants who had briefly left the country. We therefore vacate the removal order and remand so that the AAO can properly address the evidence in support of Siddiqui's claim of continuous residence.

I. Background

Siddiqui entered the United States from Pakistan on a visitor's visa in December 1979, when he was thirteen years old. Although his visa expired in April 1980, he settled down in St. Louis, Missouri, where he lived with different friends and worked various jobs.

In 1986, Congress enacted the Immigration Reform and Control Act (“IRCA”), Pub.L. No. 99–603, 100 Stat. 3359, which allows certain aliens who entered the United States before 1982 and have remained continuously and unlawfully present to apply for temporary residency and then to apply for permanent residency one year later. See 8 U.S.C. § 1255a. This process is known as “legalization.” See id. In July 1987, Siddiqui attempted to file an application for legalization, but the Immigration and Naturalization Service (“INS”) refused to allow him to submit it as a result of a brief trip to Pakistan that he had taken.¹

This INS practice, known as “front-desking,” was the subject of a class action suit. See generally Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 45–49, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993); Catholic Soc. Servs., Inc. v. Meese, 685 F.Supp. 1149 (E.D.Cal.1988). Although the IRCA provides that “[a]n alien shall not be considered to have failed to maintain continuous physical presence ... by virtue of brief, casual, and innocent absences from the United States,” 8 U.S.C. § 1255a(a)(3)(B), INS frequently refused in the late 1980s to accept legalization applications from people, like Siddiqui, who had taken short trips outside the country. The district court held that INS's regulation, which narrowly defined a “brief, casual and innocent” absence as “a departure authorized by the Service ... for legitimate emergency or humanitarian purposes,” 8 C.F.R. § 245a.1(g) (1989), was invalid and unenforceable as “inconsistent with the statutory scheme.” Catholic Soc. Servs., Inc., 685 F.Supp. at 1159–60. The district court required INS to accept late applications for amnesty from applicants who had been subjected to this policy. See Catholic Soc. Servs., Inc., 509 U.S. at 47–49, 113 S.Ct. 2485. By virtue of his membership in the Catholic Social Services (“ CSS ”) class, Siddiqui filed a Form I–687 application for temporary residence in 1990. INS issued a work authorization document to Siddiqui but did not adjudicate his application while the CSS litigation was ongoing.

The CSS suit was not resolved until 2004, when DHS entered into a settlement in which it agreed not only to adjudicate amnesty applications from front-desked applicants but also to adjudicate them in accordance with the law as it existed in 1987–1988 (when the applications were wrongfully rejected). See Settlement Agreement, Catholic Soc. Servs., Inc. v. Ridge, No. S–86–1343–LKK (E.D.Cal.), available at http:// www. uscis. gov/ files/ article/ CSS_ Settlement. pdf. Siddiqui filed a second Form I–687 application in 2005 after the final settlement in the CSS suit.

As an outgrowth of the CSS suit and two other class actions, Congress enacted the Legal Immigration Family Equity (“LIFE”) Act, Pub.L. No. 106–553, 114 Stat. 2762 (2000), to provide a faster path to lawful status for amnesty applicants. The LIFE Act generally requires applicants to be members of one of these class actions and to establish continuous residence in the United States from 1982 to 1988. See LIFE Act § 1104. In 2002, Siddiqui filed a Form I–485 application for permanent residence pursuant to the LIFE Act.

While his initial amnesty application was pending, Siddiqui settled in Granite City, Illinois where he worked as a truck driver. In 1991, Siddiqui was arrested for possession of a hunting knife. He was found guilty on December 10, 1991 in the Circuit Court of St. Louis of Unlawful Use of a Weapon, Carrying a Concealed Weapon under Missouri Stat. 571.030.1(1), a Class D felony. The court entered this conviction on February 25, 1992. The court suspended the imposition of a sentence and mandated three years' probation, which Siddiqui completed successfully. Siddiqui moved to set aside his conviction, but the court concluded that it lacked jurisdiction because he no longer had a record of a conviction.

As a truck driver, Siddiqui frequently drove a route between Ontario and Detroit or Buffalo. When he was returning from Canada on April 19, 1995, he was questioned by an INS officer who claims that Siddiqui presented himself as a U.S. citizen. Another INS officer examined Siddiqui's Illinois driver's license and voter registration. The version of the voter registration form filed with Madison County states that Siddiqui is a naturalized citizen and is signed by Siddiqui under an attestation to being a U.S. citizen. The original version of the form, which Siddiqui retained, states “Kotri Sind” (Pakistan) as his place of birth and does not contain the handwritten text stating that he is a naturalized citizen, but does contain the signed attestation. According to Siddiqui, he never stated that he was a U.S. citizen (to the INS officer or on the voter registration form), and he claims that he did not read the form carefully before signing it. On the basis of this border incident, Siddiqui was not permitted to reenter the United States.

INS charged Siddiqui with attempting to enter the country without proper documentation and by falsely claiming to be a U.S. citizen. INS commenced deportation proceedings by filing an Order to Show Cause on February 28, 1997. Although INS was aware that Siddiqui had a pending I–687 amnesty application, INS counsel argued that this did not provide any basis for staying or terminating the deportation proceeding. The IJ agreed and issued a deportation order on December 5, 2001.

Siddiqui appealed to the BIA and stated that he was seeking legalization pursuant to his CSS class membership. The BIA dismissed his appeal on June 25, 2003. Siddiqui next filed a petition for review, alleging that the IJ and the BIA erred by failing to terminate or stay his deportation proceedings because he was eligible for legalization. Siddiqui v. Ashcroft, No. 03–3998 (6th Cir. Dec. 16, 2004). The Sixth Circuit held that Siddiqui was barred from obtaining judicial review due to his failure to make this argument to the BIA.

On November 10, 2005, Siddiqui voluntarily appeared in response to a DHS notice and was detained for four years while DHS continued to review his amnesty applications. The Chicago USCIS field office director denied Siddiqui's 1990 I–687 amnesty application in December 2007 and denied his application under the LIFE Act in January 2008. In response to Siddiqui's appeal of the I–687 denial, USCIS reopened the application, consolidated it with the 2005 Form I–687 application, and reissued its denial in May 2009.

Siddiqui appealed these denials to the AAO. The AAO dismissed Siddiqui's appeals on September 3, 2009, then sua sponte withdrew and reconsidered its decisions, and finally dismissed them again on November 5, 2009 after a de novo review of the case and the evidence. Agreeing with the USCIS director's decisions, the AAO concluded that Siddiqui was ineligible for amnesty due to his failure to prove continuous residence in the United States for the requisite period and due to his felony conviction. In spite of the CSS settlement agreement, the AAO applied the more expansive definition of “conviction,” established and made retroactive by section 322 of IIRIRA.

Siddiqui then filed two pro se petitions before this court, seeking review of his two amnesty denials and requesting stay of removal: No. 09–3912 (appealing the LIFE Act denial) and No. 10–1282 (appealing the Form I–687 denial). We consolidated these cases on April 20, 2010 and ordered the government to respond to a jurisdictional memorandum, which had been filed by Siddiqui in response to the government's motion to dismiss for lack of jurisdiction. On May 12, 2010, the government filed a second motion to dismiss.

Judicial review of amnesty...