Comment

Fourth Circuit Finds that Court Costs are not Punishment

The Fourth Circuit has determined that a "prayer for judgment" in North Carolina, when accompanied only by an order to pay court costs, does not constitute a conviction for immigration purposes because these court costs do not constitute a punishment or penalty.  "Because a punishment or penalty must be proportionate to a defendant’s wrongdoing, courts generally refuse to treat a monetary assessment as a punishment or penalty when the assessment solely reflects the costs of compensating a private party or the government for losses resulting from the wrongdoing."  Congress intended the words "penalty" and "punishment" in the definition of a conviction to refer to "discretionary acts of judgment as opposed to the broader set of ministerial or administrative decrees or assessments a court may impose."  "This requires a judge to order a punitive sanction—i.e., one that is intended to discipline or deter and is proportionate to the underlying offense conduct."

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

http://www.ca4.uscourts.gov/Opinions/171519.P.pdf

Comment

Comment

Second Circuit finds that NY Conviction for Sale of Marijuana in the Third Degree is not Categorically an Aggravated Felony

The Second Circuit has determined that the minimum conduct punishable under New York's sale of marijuana in the third degree statute is distribution of less than an ounce of marijuana for no remuneration.  As such, it includes conduct that is punishable as a misdemeanor in the federal Controlled Substances Act, and cannot be a categorical match to the definition of a drug trafficking aggravated felony.  In interpreting the Supreme Court's decision in Moncrieffe, the Court determined that one ounce (or roughly 30 grams) of marijuana qualified as a "small amount."  The court re-affirmed that when the plain language of the statute includes conduct outside the generic definition of the ground of removability, the petitioner need not show that there is a realistic probability that the state actually prosecutes this conduct.  

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

http://www.ca2.uscourts.gov/decisions/isysquery/cb3c45a2-99de-4595-91ff-493388225f36/1/doc/17-1567_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb3c45a2-99de-4595-91ff-493388225f36/1/hilite/

Comment

Comment

First Circuit Reverses BIA's Determination that IJ Made Clearly Erroneous Factual Finding

The First Circuit applied a de novo review to the BIA's determination that the IJ clearly erred when he determined that the Mexican government was unable or unwilling to protect the petitioner from organized crime members.  The Court reversed the BIA's determination because it conflated the issue of the police's willingness to investigate the crime with their ability to actually protect the petitioner from harm.  The IJ focused heavily on the country conditions evidence that police in Guerrero are overwhelmed by organized crime, and the First Circuit cited this analysis approvingly. 

The full text of Justo v. Sessions can be found here: http://media.ca1.uscourts.gov/pdf.opinions/17-1457P-01A.pdf

 

Comment

Comment

Ninth Circuit Addresses Nevada Convictions for Robbery, Coercion Assault with a Deadly Weapon

The Ninth Circuit has determined that a Nevada conviction for assault with a deadly weapon qualifies as a crime of violence under the federal sentencing guidelines because it requires that the defendant placed the victim in fear of bodily harm and thus necessarily entails the use or threatened use of violent physical force against the person of another.  "A defendant cannot put a reasonable person in fear of bodily harm without threatening to use ‘force capable of causing physical pain or injury.'  When the defendant puts the victim in fear of bodily harm through the use or threatened use of a deadly weapon, the violent nature of the force employed is even more apparent."

The court further determined that a Nevada conviction for robbery is not a crime of violence under the sentencing guidelines because it can be accomplished by instilling fear of injury to property alone.

Finally, the court determined that a Nevada conviction for coercion does not meet the definition of a crime of violence under the sentencing guidelines because the force required is not the violent force required for a crime of violence.  In addition, the Nevada Supreme Court has upheld convictions for felony coercion that involved the use or threatened use of physical force against an object, rather than against a person

Given the similarity in the definition of a crime of violence under the sentencing guidelines and in the immigration context, this decision could have persuasive impact in the immigration context.  However, it is noteworthy that the definition of a crime of violence in the immigration context includes the use or threatened use of violence against the property of another, and thus, the rationale for why the Nevada robbery conviction does not qualify as a crime of violence under the sentencing guidelines may not carry over into the immigration context.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf

Comment

Comment

Supreme Court Narrows Stop-Time Rule for Cancellation of Removal

The Supreme Court has determined that a Notice to Appear that lacks the time and date of the first removal hearing on it does not trigger the stop-time rule, and thus, does not stop the accrual of continuous physical presence for the purpose of cancellation of removal for non-lawful permanent residents.

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

https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf

Comment

Comment

Eleventh Circuit Finds that IJs have the Authority to Grant U Visa Waivers

The Eleventh Circuit has determined that Immigration Judges explicitly have the authority to grant waivers of inadmissibility in conjunction with U visas under section 212(d)(3) of the INA.  In so doing, the Court joins the Seventh Circuit, and breaks with the Third Circuit and the Board of Immigration Appeals.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201514569.pdf

Comment

Comment

Tenth Circuit finds that WY Third Degree Sexual of a Minor is Aggravated Felony

The Tenth Circuit has determined that a Wyoming conviction for third degree sexual abuse of a minor is a sexual abuse of a minor aggravated felony.  The court rejected the petitioner's argument that his conviction must require knowledge of the victim's age or require an element of “actual abuse,” such as an age gap of more than five years, a lack of consent, a relationship with a power imbalance, or exploitation.

The full text of Bedolla-Zarate v. Sessions can be found here:

https://www.ca10.uscourts.gov/opinions/17/17-9519.pdf

Comment

Comment

Tenth Circuit Finds that CO Trespass Statute is Indivisible and not a CIMT

The Tenth Circuit has determined that a Colorado conviction for first degree criminal trespass is not a crime involving moral turpitude, and that the specific crime the defendant intends to commit during the trespass is not an element of the offense.  In so doing, it overruled its prior precedent to the contrary.

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

https://www.ca10.uscourts.gov/opinions/16/16-9555.pdf

Comment

Comment

Ninth Circuit Construes Corroboration Requirements

The Ninth Circuit has determined that a general advisement that corroborating evidence is required is sufficient to comply with the requirements of Ren v. Holder.  "Where, as here, an IJ gives notice that an asylum-seeker’s testimony will not be sufficient and gives the petitioner adequate time to gather corroborating evidence, and the petitioner then provides no meaningful corroboration or an explanation for its absence, the IJ may deny the application for asylum. Importantly, Liu knew that corroboration was necessary, but failed to present meaningful corroboration for his factual contentions. Liu’s failure to provide corroborating evidence was not a consequence of a lack of specificity in the notice given by the IJ."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/01/12-74077.pdf

Comment

Comment

Ninth Circuit Finds that WA Assault of a Child in the Third Degree is an Aggravated Felony

The Ninth Circuit has determined that Washington conviction for assault of a child in the third degree, with a special allegation that the crime was committed with sexual motivation, qualifies as a sexual abuse of a minor aggravated felony.  The special allegation had to be charged in the information and admitted by the defendant or proved to a jury beyond a reasonable doubt, and it led to an increase in the defendant's sentence.  As such, the court determined that it was an element of the petitioner's offense. 

Because the offense was committed for the purpose of sexual gratification, it necessarily involved “sexual conduct.”  

The full text of Quintero-Cisneros v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/13-72632.pdf

Comment

Comment

Seventh Circuit Addresses Reinstatement Provision

The Seventh Circuit has rejected a challenge to a reinstatement.  The petitioner argued that he did not "illegally" reenter the United States after deportation because he was waved into the United States, a situation recognized by the Board of Immigration Appeals as a procedurally regular entry.  The court disagreed, finding that the petitioner's substantive illegal (albeit procedurally regular) entry still triggered the reinstatement provision.  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D05-31/C:16-3568:J:Rovner:aut:T:fnOp:N:2163615:S:0

Comment

Comment

Fourth Circuit finds that MD Petty Theft Conviction is not Crime Involving Moral Turpitude

The Fourth Circuit has determined that Maryland's petty theft statute does not match the generic definition of a crime involving moral turpitude (CIMT).   Maryland’s theft statute does not distinguish between substantial and de minimis takings as required to qualify as a CIMT under Matter of Diaz-Lizarraga. The Court further concluded that the statute is indivisible, and as such, use of the modified categorical approach was inappropriate.  

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

http://www.ca4.uscourts.gov/Opinions/171301.P.pdf

Comment

Comment

Third Circuit Finds Jurisdiction to Review Expedited Removal Orders

The Third Circuit has determined that the jurisdiction-stripping provision of the INA operates as an unconstitutional suspension of the writ of habeas corpus as applied to Special Immigrant Juvenile (SIJ) designees seeking judicial review of orders of expedited removal.  "Because SIJ status reflects Petitioners’ significant ties to this country and Congress’s determination that such aliens should be accorded important statutory and procedural protections, Petitioners are entitled to invoke the Suspension Clause and petition the federal courts for a writ of habeas corpus. We further conclude that because the expedited removal regime does not provide an adequate substitute process, the INA’s jurisdiction-stripping provisions effect an unconstitutional suspension of the writ as applied to Petitioners."

The court recognized that SIJ designees enjoy certain statutory rights.  "Yet revocation of these statutory rights without cause, notice, or judicial review is precisely the consequence of expedited removal. Despite their SIJ classification, the children, once removed, would be unable to adjust status because doing so requires physical presence within the United States, and further, they would be barred from reentry for at least five years. Moreover, Petitioners’ expedited removal would be based on a ground for inadmissibility—lack of valid immigration documentation—from which Petitioners are expressly exempted by virtue of their SIJ status. In short, expedited removal would render SIJ status a nullity."

The full text of Osorio-Martinez v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/172159p.pdf

Comment

Comment

Second Circuit Rejects Equal Protection Challenge to 212(h) Waivers for LPRs

The Second Circuit has rejected an equal protection challenge to 212(h) waivers for lawful permanent residents charged with inadmissibility (who are eligible for a stand-alone 212(h) waiver) and those charged with deportability (who must apply for the waiver in conjunction with an adjustment of status application).  "Congress might have wanted to ensure that dangerous people, including those convicted of crimes of moral turpitude, remain outside the United States while their applications for discretionary relief are being considered. Congress might have wanted aliens seeking such waivers to do so from outside the United States in order to discourage them from attempting to fly under the radar' of the immigration authorities in the event that the discretionary waiver is ultimately denied. Congress might have rationalized that an alien who self-deports and returns through proper admission procedures provides immigration authorities a second bite at the apple to intercept and consider otherwise unlawful aliens. Congress might have rationalized that granting a waiver to those who self-deport and seek readmission at the borders provides an incentive for such aliens to voluntarily depart at their own expense."

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

http://www.ca2.uscourts.gov/decisions/isysquery/44186c4e-6c1a-4c84-a934-c67946243f71/12/doc/16-64_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/44186c4e-6c1a-4c84-a934-c67946243f71/12/hilite/

Comment

Comment

CA Appeals Court Applies De Novo Review to PC 1473.7 Motion

The California Appeals Court, Second Appellate Division, has determined that it will review the denial of a motion to vacate under section 1473.7 with a de novo standard

"De novo review is the appropriate standard for a mixed question of fact and law that implicates a defendant’s constitutional right. A defendant’s claim that he or she was deprived of the constitutional right to effective assistance of counsel presents a mixed question of fact and law, and we accordingly review such question independently. We accord deference to the trial court’s factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel’s deficient performance and resulting prejudice to the defendant. We apply this standard in reviewing the trial court’s order denying Ogunmowo’s motion to vacate his conviction under section 1473.7, in which he argued his conviction was legally invalid because his trial counsel rendered ineffective assistance by incorrectly advising him about the immigration consequences of his guilty plea, and he was prejudiced as a result."

The Court further found that Ogunmowo's counsel (Kaplan) had performed deficiently under prevailing norms in 1989.  "Affirmatively misadvising a client that he will not face immigration consequences as a result of a guilty plea in a drug trafficking case—when the law states otherwise—is objectively deficient performance under prevailing professional norms." 

With respect to prejudice, the Court noted that "contemporaneous evidence—Kaplan’s account of discussions that occurred at the time of the guilty plea—supports Ogunmowo’s assertion he would have rejected the plea deal if his attorney had not misadvised him about the immigration consequences of a conviction. His immigration status was such an important factor to him that he affirmatively sought his attorney’s counsel about immigration consequences before entering his guilty plea. The fact that the court advised Ogunmowo that immigration consequences arising from the guilty plea were possible does not preclude Ogunmowo from establishing that counsel’s incorrect advice prejudiced him.  The court’s warning, given just before the plea is taken, does not afford the same time for 'mature reflection’ as a private discussion with a defendant’s own counsel that incorporates the particular circumstances of the defendant’s case."

The full text of People v. Ogunmowo can be found here:

http://www.courts.ca.gov/opinions/documents/B283427.PDF

Comment

Comment

CA Supreme Court Finds no Authority to Dismiss under PC 1385 after Probation has Ended

The California Supreme Court has determined that a trial court has no authority to dismiss a conviction under penal code 1385 after probation has ended.  "At any time before a criminal defendant pleads guilty, receives a suspension of sentence, begins a term of probation, or, indeed, completes it, the defendant may invite the trial court to act in the interests of justice and dismiss the action against him. By the time the defendant has completed probation, however, the trial court’s power under section 1385 to grant him the relief he seeks has run out. The action against the defendant has ceased, the court may no longer impose a final judgment on him, and the court’s dismissal power under section 1385 has expired."

The full text of People v. Chavez can be found here:

http://www.courts.ca.gov/opinions/documents/S238929.PDF

Comment

Comment

BIA Defines Prostitution-Related Aggravated Felony

The Board of Immigration Appeals (BIA) has determined that a Wisconsin conviction for keeping a place of prostitution is categorically an aggravated felony related to the owning, controlling, managing, or supervising of a prostitution business.  The BIA acknowledged that it had construed the prostitution-related inadmissibility ground to require acts of sexual intercourse, but refused to find that prostitution must have the same definition in the aggravated felony context.  "We disagree with the Immigration Judge and with the case law on which he relied because the term 'prostitution' in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D).  It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.”

Section 101(a)(43)(K)(i) of the Act is not limited to offenses involving sexual intercourse for hire. Rather, it encompasses offenses relating to the operation of a business that involves engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.  Because the respondent did not argue that the Wisconsin statute encompasses conduct under the Board's newly-formulated definition of prostitution, the Board declined to explicitly what "sexual conduct" means in the prostitution-related aggravated felony context.

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

https://www.justice.gov/eoir/page/file/1064651/download

Comment

Comment

Ninth Circuit Addresses Competency

The Ninth Circuit has elaborated on the standard for demonstrating mental incompetency.  To demonstrate mental incompetency, a person must show some inability to comprehend or to assist and participate in the proceedings, some inability to consult with or assist their counsel or their representative if pro se, and lack of a reasonable opportunity to present evidence and examine witnesses, including cross-examination of opposing witnesses. The mere inability to recall some events, a common weakness, and other similar mental lapses, are not sufficient to show mental incompetency, if they do not show any inability to understand the nature and object of the proceeding.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/08/14-71890.pdf

Comment

Comment

Ninth Circuit Interprets Heightened Standard NACARA Regulations

The Ninth Circuit has determined that an applicant subject to the heightened standard for NACARA must establish ten years of continuous physical presence following the applicant's most recently incurred ground of removal.  In so holding, the Court deferred to the Board of Immigration Appeals' decision in Matter of Castro-Lopez.  Campos-Hernandez was convicted of drug-related offenses in California in 2003, 2005, and 2008.  Because ten years had not passed since the 2008 offense when the Board of Immigration Appeals denied his case, he could not meet the continuous physical presence requirement.

The full text of Campos-Hernandez v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/02/14-70034.pdf

Comment

Comment

Eighth Circuit finds that Arkansas Battery Convictions are Violent Felonies

The Eighth Circuit has determined that Arkansas convictions for third degree domestic battery and first degree battery are violent felonies because they require the use of violent force.  Given the similar definitions of violent felonies and crimes of violence in the immigration context, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/05/171402P.pdf

Comment