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Eighth Circuit finds that Minnesota Simple Robbery is Violent Felony

The Eighth Circuit has determined that a Minnesota conviction for simple robbery is a violent felony under the Armed Career Criminal Act (ACCA) because it requires proof of the use, attempted use, or threatened use of violent force.  Given the similar definition of a crime of violence in immigration proceedings, this case could have persuasive force in the immigration context.

The full text of United States v. Pettis can be found here:

http://media.ca8.uscourts.gov/opndir/18/04/163988P.pdf

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BIA Address DHS Motions and Asylum in Withholding Only Proceedings

The Board of Immigration Appeals has clarified that the Department of Homeland Security has the authority to file a motion to consider, and has also affirmed that a respondent subject to a reinstated order of removal, who is placed in withholding only proceedings, does not qualify for asylum.

The full text of Matter of L-M-P- can be found here:

https://www.justice.gov/eoir/page/file/1058201/download

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Supreme Court Finds 16(b) Definition of Crime of Violence Unconstitutionally Vague

The Supreme Court has determined that the definition of a crime of violence contained in 18 USC 16(b) is unconstitutionally vague.   In so doing, it relied heavily on its 2015 decision in Johnson v. United States, which invalidated the residual clause of the Armed Career Criminal Act on vagueness grounds.

The full text of Sessions v. Dimaya can be found here:

https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf

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Fourth Circuit Finds that VA Conviction for Obstruction of Justice is not CIMT

The Fourth Circuit has determined that a Virginia conviction for obstruction of justice is not a crime involving moral turpitude because it can be committed without fraud, deception, or any other aggravating element (such as the use of threats or force) that shocks the public conscience.  In so doing, the court distinguished the statute at issue from the statute analyzed in Matter of Jurado-Delgado.

The court also clarified the requirement that a petitioner exhaust his arguments before the agency.  "[T[he Government takes issue with appellate counsel citing certain cases for the first time on appeal in order to elaborate on the breadth of the Virginia statute. The Government has not provided any basis for applying the exhaustion requirement at this level of granularity. Indeed, such an approach would strip appellate counsel’s ability to bolster existing arguments—and limit the universe of available case law and precedent to those already cited below."

The full text of Ramirez v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/162444.P.pdf

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Sixth Circuit Finds that Inconclusive Record does not Meet Burden of Proving Relief for Eligibility

The Sixth Circuit has determined that an inconclusive record of conviction does not meet a petitioner's burden of establishing eligibility for relief.  This decision creates a circuit split with the First Circuit, but aligns with a decision from the Fifth Circuit.  The issue is currently being heard en banc by the Ninth Circuit.

The full text of Gutierrez v. Sessions can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0073p-06.pdf

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Eighth Circuit Finds that North Dakota Burglary Statute is not a Violent Felony

The Eighth Circuit has determined that a conviction for burglary in North Dakota (which includes burglary of both vehicles and structures) is overbroad and indivisible with respect to the generic definition of burglary.  As such, it does not qualify as a violent felony under the Armed Career Criminal Act (ACCA).  Given the similar definitions of generic burglary under the ACCA and a burglary aggravated felony, this case could have persuasive value in the immigration context.

The full text of US v. Kinney can be found here:

http://media.ca8.uscourts.gov/opndir/18/04/163764P.pdf

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BIA Finds California Stalking Conviction is not a Crime of Stalking

The Board of Immigration Appeals (Board) has determined that a conviction for stalking in California is not a crime of stalking, overruling its prior decision in the same case.  The Board determined that there is a realistic probability that California would apply section 646.9 to conduct committed with the intent to cause and which causes a victim to fear safety in a non-physical sense.  Because the Legislature explicitly replaced the specific reference to death or great bodily injury with the broader term safety, stalking offenses committed with the intention of causing a victim to fear nonphysical injury, either personally or to his or her family, may be prosecuted in California.  Such offenses fall outside the scope of the definition of a crime of stalking.  The Board further determined that the statute is indivisible, and as such, the modified categorical approach cannot be employed.

The full text of Matter of Sanchez-Lopez can be found here: 

https://www.justice.gov/eoir/page/file/1055031/download

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BIA Reaffirms Matter of Pickering Analysis of Vacated Convictions

The Board of Immigration Appeals (Board) has reaffirmed its decision in Matter of Pickering, which holds that a conviction vacated because of a substantive defect in the underlying proceedings is no longer a valid conviction for immigration purposes.  In so doing, the Board refused to follow the Fifth Circuit's decision in Renteria-Gonzalez v. INS, which held that a vacated conviction remains valid for immigration purposes no matter what the reason was for the vacatur. 

The full text of Matter of Marquez Conde can be found here:

https://www.justice.gov/eoir/page/file/1049656/download

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BIA Finds that CA Attempted Voluntary Manslaughter Conviction is Aggravated Felony

The Board of Immigration Appeals (Board) has determined that a California conviction for attempted voluntary manslaughter is a crime of violence aggravated felony, even though the completed offense of voluntary manslaughter is not.  The Board noted that California courts have held that attempted voluntary manslaughter cannot be premised on the theory that a defendant acted with conscious disregard for life, because it would be based on the internally contradictory premise that one can intend to commit a reckless killing.  Instead, a person who commits attempted voluntary manslaughter must act with the specific intent to kill another person.  The specific intent to kill, in turn, necessarily involves the volitional use of force.   Thus, the attempt crime does not suffer form the same overbreadth with respect to mens rea as the completed offense, which can entail reckless conduct.

The full text of Matter of Cervantes Nunez can be found here:

https://www.justice.gov/eoir/page/file/1043666/download

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BIA Clarifies Drug Trafficking Aggravated Felony Analysis

The Board of Immigration Appeals has determined that when analyzing whether the conduct criminalized by a state statute would be punishable as a felony under federal law, the adjudicator is not limited to examining the federal law that is most closely analogous to the state statute at issue.  In the instant matter, Rosa was convicted of selling a controlled substance within 1000 feet of a school in New Jersey in violation of N.J. Stat. Ann. § 2C:35-7.  The New Jersey statute criminalized dispensing or distributing drugs, while the federal statute (21 U.S.C. § 860(a)) criminalizing drug activities near a school did not include dispensing drugs.  However, all of the conduct criminalized by the New Jersey statute was included in a different federal statute (21 U.S.C. § 841(a)) which criminalized distributing or dispensing a controlled substance, without reference to the location of a school.  Thus, the New Jersey conviction qualifies as a drug trafficking aggravated felony.

The full text of Matter of Rosa can be found here:

https://www.justice.gov/eoir/page/file/1043471/download

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Third Circuit Determines that PA Possession of Child Pornography Conviction is Categorically a CIMT

The Third Circuit has determined that a Pennsylvania conviction for possession of child pornography is categorically a crime involving moral turpitude, even considering that an 18-year-old could be prosecuted for sexting with a 17-year-old.  The court also rejected the petitioner's argument that the term "crime involving moral turpitude" was void for vagueness.

The full text of Moreno v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/171974p.pdf

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Attorney General Refers Cases Involving Continuances to Himself for Review

The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.

The text of the referral order in Matter of L-A-B-R- can be found here:

https://www.justice.gov/eoir/page/file/1045661/download

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Eleventh Circuit Finds that FL Conviction for Sale of Cocaine is Aggravated Felony

At issue in this appeal was the petitioner's 2006 conviction under Fla. Stat. § 893.13(1)(a)(1). Both parties agreed that, of the six discrete alternative elements outlined in § 893.13(1)(a)(1), the “sale” element formed the basis of the petitioner's conviction.  The Court agreed with the Board of Immigration Appeals' determination in Matter of L-G-H- that the illicit trafficking definition of a drug trafficking aggravated felony does not require knowledge of the illicit nature of the substance trafficked.  Accordingly, the petitioner's conviction qualified as an aggravated felony.

The full text of Choizilme v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201513845.pdf

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Eleventh Circuit Finds that Florida Drug Trafficking Conviction is not an Aggravated Felony

The petitioner was convicted of violating Fla. Stat. § 893.135(1)(b)1.c, which makes it unlawful to sell, purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly possess cocaine.  The Court recognized that it had determined in Cintron v. U.S. Attorney held that Fla. Stat. § 893.135(1)(c) is neither divisible nor a categorical match to a federal crime in the CSA.  Given the nearly identical language in the two statutes, Cintron controlled the outcome of the instant case.

The full text of Ulloa Francisco v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201513223.pdf

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AG Vacates Precedent Requiring that Immigration Judges Hold a Hearing on Asylum Applications

 

The Attorney General referred the decision of the Board of Immigration Appeals in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), to himself for review and vacated that decision.  E-F-H-L- prohibited an Immigration Judge from denying an asylum, withholding of removal, and protection under the Convention Against Torture application based solely on the written application and required that the judge hold a hearing on the merits of the application.

The order referring the case can be found here: 

https://www.justice.gov/eoir/page/file/1040936/download

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Ninth Circuit Addresses Mental Health and Particularly Serious Crimes

The Ninth Circuit has rejected the Board of Immigration Appeals' (Board) categorical rule, established in Matter of G-G-S-, that an adjudicator may not consider a petitioner's mental health condition when determining whether he has been convicted of a particularly serious crime.  "This decision is contrary to Congress’s clearly expressed intent that the analysis of whether a crime is particularly serious requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress, because such categorical rules undermine the ability of the agency to conduct a case-by-case analysis in each case."  

"The IJ is not retrying the question of guilt but assessing whether the circumstances of the crime are so serious as to justify removal to a country where there is a significant risk of persecution. Therefore, an IJ, as a fact finder focused on that question, may choose to examine what he or she deems reliable evidence of mental health and decide whether such evidence bears on the dangerousness determination, and ultimately whether the individual committed a particularly serious crime, without disturbing, or 'reassessing' the criminal court’s findings." 

"Second, the Board’s concerns about 'going behind' a conviction are unreasonable given that, pursuant to various provisions of the INA, IJs regularly scrutinize the factual circumstances surrounding crimes of conviction."

"Third, the Board’s assumption that consideration of mental health would implicate reassessment of the criminal court’s finding is flawed because the mental health evidence the individual wishes to offer in the immigration court may never have been presented to the criminal court. For example, no specific mental state is required as an element of strict liability offenses, and similarly, mental illness is not a defense to crimes that require only negligence; and at sentencing judges may exercise their discretion and choose not to consider mental illness in making their decision." 

The Court also recognized that the decision in G-G-S- is inconsistent with the Board's caselaw permitting an adjudicator to consider "all reliable information" when making a particularly serious crime determination.  Finally, the Court disagreed with the Board's determination that mental illness is never relevant to the particularly serious crime assessment because it is inconsistent with the Board's precedent recognizing the relevance of motivation and intent to the particularly serious crime determination and fails to recognize that mental illness bears on intent.  

The full text of Gomez-Sanchez v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/06/14-72506.pdf

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Ninth Circuit and Second Circuit Address Retroactive Application of new BIA Precedent

The Ninth Circuit has determined that the Board of Immigration Appeals' (Board) new definition of a theft-related crime involving moral turpitude, outlined in Matter of Diaz-Lizarraga, is a clear break with prior precedent defining theft-related crimes involving moral turpitude, and cannot be applied retroactively to convictions that pre-date the decision in Diaz-Lizarraga.  The petitioner's convictions for theft in Oregon did not require a permanent taking, as required by pre-Diaz-Lizarraga precedent.

The decision in Garcia-Martinez v. Sessions can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/09/16-72940.pdf

The Ninth Circuit cited a recent Second Circuit decision that reached the same conclusion about the impermissible retroactive application of Diaz-Lizarraga.

The decision in Obeya v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/323cc41e-f545-40d3-bad4-14f6b788152a/3/doc/16-3922_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/323cc41e-f545-40d3-bad4-14f6b788152a/3/hilite/

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Ninth Circuit Finds that CA Drug Trafficking Conviction is an Aggravated Felony

The Ninth Circuit has determined that a conviction for possession for sale of methamphetamine under section 11378 of the California Health and Safety Code (CHSC) is a drug trafficking aggravated felony.  There are two definitions of a drug trafficking aggravated felony.  First, under the phrase “illicit trafficking in a controlled substance,” a state drug crime is an aggravated felony “if it contains a trafficking element.” Second, under the phrase “including a drug trafficking crime (as defined in section 924(c) of Title 18),” a state drug crime is an aggravated felony if it would be punishable as a felony under the federal drug laws. 

The petitioner argued that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking.  Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law.  Under federal law, the defendant cannot be mistaken about the nature of the substance he is trafficking.  The petitioner argued that because of this mismatch, his conviction does not qualify under the second definition of a drug trafficking aggravated felony.

The court declined to address the petitioner's argument, finding that he trafficked a substance controlled under federal law, and thus, his conviction fell within the first definition of a drug trafficking aggravated felony.  "To the extent 'illicit trafficking' in route one incorporates a mens rea requirement, section 11378 suffices because it  requires that the defendant intend to possess for sale a controlled substance and actually possess for sale a controlled substance, and that both the intended substance and the actual substance be controlled.  This is, in fact, the same mens rea required under federal law."

The full text of United States v. Verduzco-Rangel can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/09/15-50559.pdf

 

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