Court shuts down scheme that allowed migrants sentenced to deportation to prolong their stay in the US for years

In late December 2024, the Ninth Circuit Court, in a Ukrainian refugee case, effectively overturned a precedent that had been in effect for twenty years. This precedent, according to one of the judges, allows people to manipulate immigration appeals in order to extend their stay in the country for years, writes the legal portal Law 360.

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The case of Chmukh v. Garland states that Ukrainian citizen Vitaliy Chmukh arrived in the United States with his family as a refugee in 2001. He was later convicted of carjacking and possession of a stolen vehicle. This crime is classified as a serious one, so a decision was made to deport the Ukrainian.

However, Chmukh did not want to go home and applied for asylum. He stated that he would be persecuted by the Ukrainian government for his religious and political views.

The Ninth Circuit Court of Appeals ruled that his crime was "particularly serious," precluding asylum and other forms of protection, such as withholding of deportation.

The court heard an issue about the appeals process, which Judge Laurence Van Dyke said allowed immigrants to game the system by withholding data and information until they could appeal. They then delay their cases for years and remain in the United States despite a trial court ruling to remove them.

To understand the process, let's analyze how immigration cases are handled in the United States. The process goes through several stages, each of which may present different arguments and problems that require resolution.

1. Court of first instance:

The Immigration Court (IJ) decides the case. At this stage, the arguments of the parties are considered, including arguments for refusal of asylum or deportation, violation of the conditions of stay and other issues related to legal status.

The court ultimately makes a decision (for example, deportation or asylum). In Chmukh's case, the court of first instance decided to deport him.

2. Appeal to the Board of Immigration Appeals (BIA):

If one of the parties disagrees with the decision, they can appeal to the BIA. This body focuses on reviewing the case without a retrial (without admitting new evidence), including reviewing procedural errors, misinterpretations of laws, or incorrect assessment of evidence.

That is, procedural errors should be reported at this stage. The BIA process is usually relatively quick. But immigrants, including Chmukh, sometimes cheat and hold off on complaining about procedural errors until the next stage — appeals in federal district court.

Given that Chmukh failed to provide any additional information, the BIA upheld the trial court's deportation order.

Chmukh then appealed to the federal district court (the Ninth Circuit). Appeals in federal district courts take time because they have backlogs of cases. In addition, appeals require hearings and re-examination of all evidence.

Under existing Ninth Circuit precedent, people deliberately hold back certain procedural error arguments until they file an appeal, rather than raising them during a BIA hearing. That's exactly what Chmukh did. The trial court made procedural errors in his case, but the Ukrainian kept quiet about them during the BIA hearing and brought them to his attention in the appellate court.

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Lawrence VanDyke, the judge in the Chmukh case, expressed particular displeasure, criticizing a precedent that he said allowed and even encouraged people to make arguments in an appellate court rather than before the Board of Immigration Appeals (BIA).

The case in question is Abele v. Gonzalez, a 2005 Ninth Circuit decision that created a situation in which immigrants are incentivized not to raise potential errors in the initial immigration judge's decision when they appeal to the BIA, but instead to bring them to appeal after the BIA affirms the trial court's decision.

Judge VanDyke said the district court's precedent creates an incentive for people to hide arguments from the BIA and then bring them to trial to extend their stay in the United States, not for a few months but for several years.

"All the migrant has to do is simply remain silent," the judge noted.

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Ultimately, Chmukh is deported (the judge's procedural error does not affect the merits of the case or the decision on it). In addition, with this decision in the Chmukh case, the Ninth Circuit Court set a precedent that will not allow migrants to use concealment of arguments from the BIA to extend their stay in the United States.

The full text of the decision can be found here.

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