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CA Appeals Court Discusses Duty of Defense Counsel in 2003

The California Court of Appeal, Fourth District, has issued a decision regarding the obligations of criminal defense counsel in 2003 when representing a non-citizen defendant. The court determined that in 2003, there was no general obligation imposed by case law on defense counsel to discuss the immigration consequences of a plea. However, the court left open the possibility that expert testimony, the California Criminal Law CEB, and the ABA standards of practice could establish that advisals about immigration consequences were the professional norm at the time. Indeed, in this case, the criminal defense attorney (O’connor) testified that he would have researched immigration issues, and the defendant presented an expert witness (Mehr) on the prevailing norms.

“Although Mehr's testimony coupled with O'Connor's testimony may point toward the potential of a more robust obligation on behalf of criminal defense attorneys that might have existed in 2003, on the record before us, we need not make such a sweeping proclamation. Nor can we. Based on the specific facts of the case, it is apparent that, in the Fontana courthouse in San Bernardino County, criminal defense attorneys, in 2003, had the practice of advising noncitizen defendants.”

Interesting, the court focused on the prevailing professional standards in San Bernardino County, and more specifically, the Fontana courthouse within that county in 2003. “We are not holding that a criminal defense attorney, in 2003, had a duty to investigate and discuss all immigration consequences related to the offenses charged against a defendant. We do not conclude that, in 2003, a criminal defense attorney had the duty to attempt to negotiate a plea bargain that would reduce the immigration consequences of a plea. It might be that such duties existed then, but that determination cannot be reached on the record before us.” However, the court did conclude that O’Connor’s conduct fell below the prevailing norms.

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

http://sos.metnews.com/sos.cgi?0419//D074888

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BIA Finds that 18 USC 1201(a) is not an Aggravated Felony

The Board of Immigration Appeals has determined that a kidnapping conviction under 18 USC 1201(a)(1), (a)(2) is not an aggravated felony. INA 101(a)(43)(H) defines an aggravated felony to include “an offense described in section 875, 876, 877, or 1202 of title 18.” The Department of Homeland Security argued that an offense defined in 18 USC 1201 is still one described in those sections. “However, we cannot agree that Congress’ use of the phrase ‘described in’ allows us to interpret section 101(a)(43)(H) as including an offense under a Federal statute that is not enumerated there.”

“Congress used the phrase ‘relating to the demand for or receipt of ransom’ as the descriptor of the offenses defined in the four Federal statutes enumerated in section 101(a)(43)(H), not the phrase ‘relating to kidnapping.’ A conviction for kidnapping under § 1201 does not require a demand for or receipt of ransom to support a conviction, because the statute requires proof that a person has been ‘held for ransom, reward, or otherwise’.”

The full text of Matter of A. Vasquez can be found here:

https://www.justice.gov/eoir/page/file/1154051/download

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Attorney General Finds all Individuals with a Credible Fear of Persecution Ineligible for Bond

The Attorney General has determined that all individuals placed in expedited removal proceedings are ineligible for bond, even if they subsequently receive a positive credible determination, overruling Matter of X-K-. The Attorney General delayed implementation of the decision for 90 days to give DHS the opportunity to adjust its operational capacity accordingly.

This decision will effectively result in the widespread detention of asylum seekers who ICE refuses to parole.

The full decision of Matter of M-S- can be found here:
https://www.justice.gov/eoir/file/1154747/download

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Ninth Circuit finds that OR 3d Deg Robbery Conviction is Theft Offense

The Ninth Circuit has concluded that an Oregon conviction for third-degree robbery is a theft-related aggravated felony. The panel concluded that section 164.395 theoretically could cover a consensual taking due to its incorporation of theft by deception, explaining that the statute does not require that force be used or threatened against the owner of the property. The panel observed that, for example, the statute could theoretically apply to a situation where a person obtained property from its owner, by deception, and then used force against a third party. However, the panel concluded that there is no realistic probability that Oregon would prosecute such conduct under the statute.

Dissenting, Judge Berzon disagreed with the majority’s conclusion that Lopez-Aguilar was required to establish a realistic probability that the statute would be applied in a nongeneric manner. Judge Berzon wrote that, under the circuit’s case law, Lopez-Aguilar was not required to establish such a realistic probability because section 164.395’s text is on its face broader than a generic theft offense under the Immigration and Nationality Act.

This decision has both positive and negative take aways. The positive take away is the idea that robbery through deception might not fall within the definition of a theft offense - an argument that has not yet prevailed with respect to other robbery offenses in the Ninth Circuit (such as California’s robbery statute).

“Because the statute does not require that force be used or threatened against the owner of the property, the text of the statute could theoretically cover situations involving consensual takings. For example, under subsection (a), a defendant could be convicted if he entered a residential building, obtained property from a resident through deception, and used force against a security guard on his way out of the building in order to retain the property. Under subsection (b), a defendant could be convicted if she convinced an owner, by deception, to give her property but used force against a third party to compel that third party to deliver the consensually obtained property to her. In either scenario, the property would have been taken by consent of the owner, and the force used would not negate the owner’s consent because the force was used against a third party without the owner’s knowledge.

However, these two scenarios represent merely theoretical – not realistic – possibilities. Indeed, under subsection (a), the threat or force must be used ‘immediately after the taking.’ Therefore, it is unlikely that a defendant would be convicted for using or threatening force against a third party unless the force occurred in the presence of the owner, which would negate consent.”

The negative take away is the application of the realistic probability test. Judge Berzon’s dissent is spot on - the Ninth Circuit has consistently held that the plain text of the statute is enough to establish a realistic probability. The majority’s analysis tries to get around the text of the statute by using other parts of the statute as limits on the statute’s text, but really only seems to be able to negate about of the relevant overbroad text.

The full text of Lopez Aguilar v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/23/17-73153.pdf

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Second Circuit finds that CT First Deg Assault is Crime of Violence; Rejects Jurisdictional Challenge to Removal Proceeding

The Second Circuit has determined that a Connecticut first-degree assault conviction is a crime of violence aggravated felony under 8 USC 16(a). The subsection under which the petitioner was convicted requires that “with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” “Such a crime appears on its face to involve the use of ‘violent’ physical force, as required by Johnson.  Furthermore, Villanueva clarifies that just because the physical injury under Connecticut law may be caused by means of a dangerous instrument that is a substance, such as poison, this does not mean that the crime does not require the use of ‘physical force.’  Accordingly, we see no reason not to apply the reasoning of Villanueva and we conclude that Banegas Gomez’s conviction falls squarely within the definition of a crime of violence under § 16(a).”

The Court also determined that jurisdiction properly vests with an immigration court when a Notice to Appear is filed - even if it does not contain the time, date and place of the first hearing - so long as a notice of hearing is subsequently served.

The full text of Banegas Gomez v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/c1f94ee5-b455-4c80-86c6-cbe92fab9d9b/6/doc/15-3269_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c1f94ee5-b455-4c80-86c6-cbe92fab9d9b/6/hilite/

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Seventh Circuit Grants Asylum Appeal Based on Family PSG

The Seventh Circuit has granted the appeal of a petitioner seeking asylum based on the particular social group of immediate relatives of his wife. The petitioner’s wife was kidnapped and rape by a cartel leader who wished to “possess” her, and the petitioner himself was kidnapped and forced to listen to the execution of two other men because he refused to leave his wife and allow the cartel leader to claim her. The cartel leader also threatened him at gunpoint, and told him he knew the names of the couple’s sons.

“As in Hernandez-Avalos, the government argues here that the harm Gonzalez Ruano experienced resulted from Rivera’s attempt to ‘possess’ Catalina, and that the persecution was simply a ‘means to an end,’ making Gonzalez Ruano’s relationship to his wife incidental. In other words, goes the argument, he was not persecuted because he is a member of Catalina’s immediate family but because, as her husband, he was the one person preventing the CJNG from forcibly recruiting her. We confess that this argument—CJNG targeted Gonzalez Ruano because they wanted his wife, not because he is her husband—draws a finer distinction than we can discern. As in Hernandez-Avalos, Gonzalez Ruano’s relationship to his wife was the reason he, and not someone else, was targeted.“

“Finally, we address the government’s contention that Gonzalez Ruano should be denied asylum because no other members of his family were threatened or harmed by the CJNG. To downplay the obvious threats against Catalina’s sons, the government actually argued that Rivera, by merely expressing knowledge of the children’s names, did not threaten them. It’s an interesting suggestion, but it overlooks the fact that Rivera was holding a gun to Gonzalez Ruano when he mentioned that he knew the boys’ names. In the alternative, the Government argues the threat was actually against Gonzalez Ruano, not the boys themselves. We reject these astonishing arguments. They ask us to close our eyes to reality. In any event, Gonzalez Ruano did not need to prove that the CJNG targeted other members of Catalina’s family to establish that the cartel targeted him on account of his membership in her family. Threats to harm other members of the group can certainly be relevant, but they are not essential to such an asylum claim.“

The full text of Gonzalez Ruano v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D04-24/C:18-2337:J:Hamilton:aut:T:fnOp:N:2330663:S:0

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Seventh Circuit Remands case to Board to Address Whether NJ Aggravated Assault Conviction is a CIMT

The Seventh Circuit has determined that some of the conduct criminalized by New Jersey’s aggravated assault statute falls outside the definition of moral turpitude. Examining the facts of the petitioner’s conviction, the court noted that “the only weapons anyone had in the fracas leading to Garcia-Martinez’s earlier conviction were body parts: hands, fingers, feet. Body parts are sometimes, but not always, considered to be deadly weapons. In other instances, courts have declined to characterize body parts as deadly or dangerous weapons.” “New Jersey, the state of Garcia-Martinez’s conviction, has its own quirks. There, placing a hand in a pocket so as to make a victim believe it is a gun counts as the use of a deadly weapon.”

“The Board left most of this unexplored. It did not explain why Garcia-Martinez’s act of sticking his leg out to trip the victim was an act of moral turpitude, thus making his offense fall within the generic crime of assault with a deadly weapon—if that is indeed what it decided (also unclear). To the extent the Board was relying on accomplice liability, it did not explain whether its decision rested only on the assumption that the actual assailants were using their fists, or also on the unsupported speculation that they were holding some other unspecified weapon that the New Jersey judge thought unimportant enough not to address.”

Finally, the court also reminded the Board that under the proper application of the modified categorical approach, if all relevant parts of the record of conviction are entered into evidence, the court should be able to determine as a matter of law whether a conviction is a crime involving moral turpitude or not. “Garcia-Martinez was entitled to show the Board the record on which the New Jersey courts actually relied; that record shows that he was convicted without any further fact-finding about the nature of the accomplices’ weapons. The only task left for the Board was to decide as a matter of law how the New Jersey statute maps onto the generic offense of assault with a deadly weapon.“ “Additionally, the New Jersey Supreme Court requires courts to establish a factual basis before accepting a guilty plea, and the state court accepting Garcia-Martinez’s conviction said nothing about the need to establish the existence of a traditional deadly weapon.” “. It appears to us that Garcia-Martinez has entered all the relevant Shepard documents into the record, and so the Board should be able to decide as a matter of law whether New Jersey’s assault with a deadly weapon statute is closer to generic simple assault, and thus not a crime of moral turpitude, or stays within the boundaries of generic assault with a deadly weapon, and thus reflects moral turpitude. On remand if the BIA is concerned about the completeness of Garcia-Martinez’s Shepard documents, it should explain that view and Garcia-Martinez should be given the opportunity to present any necessary additional materials.”

The full text of Garcia-Martinez v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D04-16/C:18-1797:J:Wood:aut:T:fnOp:N:2326433:S:0

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Sixth Circuit Reluctantly Affirms Denial of Asylum to Minor Rape Victim

The Sixth Circuit has reluctantly affirmed the denial of asylum to a child rape victim. The Guatemalan government rescued the child from her kidnappers, but also ordered her grandmother to secure her a visa to the United States.

“As an initial matter, although K.H. was placed in a refuge and scheduled for regular check-ins with authorities, there is no indication any such visits occurred. Accordingly, it is not clear from the record what protection, if any, K.H. was provided after she left the refuge. Moreover, the record indicates that K.H. was directed to apply for a humanitarian visa to be with her mother, as well as for safety reasons. These factors, thus, do not support the BIA’s conclusion. To the contrary, these factors actually support K.H.’s argument. But the BIA did adequately consider the other factors that weigh strongly in the government’s favor: for example, the police’s timely and effective investigation, the efficient prosecution of K.H.’s perpetrators, and the lengthy punishments imposed. Thus, although the evidence is not as strong as the BIA indicated, the BIA reasonably concluded that some of the evidence presented, with respect to the government’s response, demonstrated the Guatemalan government was not unwilling or unable to control K.H.’s persecutors and protect her.“

“Again, we reiterate that the government’s response to K.H.’s kidnapping is not dispositive. But we cannot say that the BIA’s decision here was not supported by substantial evidence given just how much effort the Guatemalan government expended in trying to control K.H.’s persecutors and protect her. While we may have reached a different result—and found that the government’s response did not outweigh the record evidence demonstrating the struggles of the Guatemalan government to protect minors and indigenous citizens—that is not the standard.”

The full text of K.H. v. Barr can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0065p-06.pdf

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Fifth Circuit Limits Collateral Attack on Reinstated Removal Order

The Fifth Circuit has severely limited the ability of a petitioner to collaterally attack a reinstated removal order through a petition for review of the reinstated order. “In sum, if an alien illegally re-enters the United States and his prior removal order is reinstated, then, pursuant to the jurisdiction-stripping provision in § 1231(a)(5), the underlying removal order cannot be reviewed, except through the savings provision in § 1252(a)(2)(D). In order to preserve our jurisdiction under § 1252(a)(2)(D)’s savings provision, an alien must file a petition for review within 30 days of the removal order as required by § 1252(b)(1), in addition to exhausting all available administrative remedies and demonstrating that the initial proceedings constituted a gross miscarriage of justice.”

This case involved an in absentia order, which cannot be appealed to the Board of Immigration Appeals or to a circuit court, but can only be reopened through a motion to reopen. Thus, this decision essentially prevents any collateral attacks on in absentia removal orders that have been reinstated by the Department of Homeland Security.

The full text of Luna Garcia de Garcia v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60526-CV0.pdf

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Fifth Circuit Declines to Apply Diaz Lizarraga Retroactively

The Fifth Circuit has declined to retroactively apply the Board of Immigration Appeals’ decision in Matter of Diaz Lizarraga - which altered the definition of a crime involving moral turpitude as it applies to theft offenses - finding that doing so would impact the expectations of criminal defendants who accepted pleas to theft offenses in reliance on the prior rule.

The full text of Monteon-Camargo v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60345-CV0.pdf

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Fourth Circuit Finds VA Conviction for Taking Custodial Indecent Liberties with a Child is Aggravated Felony

The Fourth Circuit has determined that a Virginia conviction for taking custodial indecent liberties with a child is a sexual abuse of a minor aggravated felony. The court emphasized that the statute targets conduct directed towards minors. requires a mental element focused on sexual gratification, and requires physical or nonphysical misuse or maltreatment of a child. The court also distinguished the Supreme Court’s decision in Esquivel-Quintana, which did not reach sexual offenses against children over age 16 when there is a relationship of trust between the adult and the child.

The full text of Thompson v. Barr can be found here:

http://www.ca4.uscourts.gov/opinions/181809.P.pdf

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Third Circuit Rejects Equal Protection Challenge to INA 309

The Third Circuit has rejected a challenge to the acquired citizenship law found in INA 309, insomuch as it treats adopted children of US citizens differently than natural born children of US citizens.

“The Supreme Court has recognized the important government interest in developing the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States. We also agree with many 7 of our sister circuits that preventing immigration fraud is a legitimate interest. And finally, we have recognized the government’s legitimate interest in protecting the rights of alien parents in the immigration context.” “We also agree with the Government that the disparate treatment in Section 309 is at least rationally related to advancing these interests. Requiring an adoptive parent to apply for citizenship on behalf of his or her child, as opposed to conferring citizenship automatically upon the child, increases the probability that those who take the time to navigate that process have a real parent-child relationship. These additional requirements also reduce the likelihood that an adoption will occur solely to obtain citizenship.” “Furthermore, if adopted children could obtain automatic derivative citizenship, then the child’s biological, alien parents could be cut out of the process of determining their child’s citizenship.”

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

https://www2.ca3.uscourts.gov/opinarch/182192p.pdf

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Third Circuit Remands Changed Country Conditions Motion for Indonesian Christian of Chinese Ancestry

The Third Circuit has remanded a motion to reopen based on changed country conditions, filed by an Indonesian Christian of Chinese ancestry. The court chastised the Board of Immigration Appeals for cherry picking evidence and failing to consider the majority of the exhibits submitted with the motion.

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

https://www2.ca3.uscourts.gov/opinarch/181955p.pdf

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District Court Issues Nationwide Injunction Providing Bond Hearings for Asylum Seekers

The District Court for the Western District of Washington has ordered that the Department of Justice provide all detainees who have received a positive credible fear determination with bond hearings within 7 days of a request made by such a detainee. If detention exceeds that time limit, the detainee must be released. The Department of Homeland Security will have the burden to prove that the asylum seeker is a danger to the community or a flight risk in these bond proceedings. The order requires the Department of Justice to implement the injunction within 30 days.

Importantly, this order includes asylum seekers who have been classified as arriving aliens.

The full text of Padilla v. ICE can be found here:

https://www.nwirp.org/wp-content/uploads/2019/04/110-order-granting-PI.pdf

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CA Court of Appeals Addresses IAC Regarding Immigration Consequences

The California Court of Appeals, Fourth Appellate District, has determined that a counsel who failed to advise her client before she entered her guilty plea that her plea would subject her to mandatory deportation has rendered ineffective assistance of counsel. An executed Tahl waiver form, advising the defendant she will be deported, does not substitute for the specific and correct advice of counsel regarding clear immigration consequences.

Moreover, where the record contains objective evidence (such as family ties, long-time lawful permanent residence, and an employment history in the United States) that the defendant would not have entered her guilty plea had she been so advised, prejudice is established. A defendant’s willingness to spend months in immigration detention fighting a case is further proof of her unwillingness to agree to a plea that would make her automatically deportable.

The full text of In re Reyna Perez Hernandez can be found here:

http://sos.metnews.com/sos.cgi?0319//G054623

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Ninth Circuit finds that NC Conviction for Breaking and Entering is Predicate Felony under ACCA

The Ninth Circuit has determined that a North Carolina conviction for breaking and entering can qualify as a predicate burglary offense under the Armed Career Criminal Act (ACCA). In so doing, the court determined that generic burglary includes burglary of mobile structures customarily used or adapted for overnight accommodation, such as mobile homes. Given the similar definition of a burglary predicate offense under the ACCA and a burglary aggravated felony in the immigration context, this decision could have persuasive impact in immigration cases.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/04/17-15415.pdf

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Ninth Circuit finds that OR Third Degree Robbery Conviction is not a CIMT

The Ninth Circuit has determined that an Oregon third degree robbery conviction is not a crime involving moral turpitude because it encompasses the unauthorized use of a vehicle, which does not include as an essential element an intent to deprive the owner of his or her property permanently. Although the court recognized that the BIA no longer requires an intent to permanently deprive to turn a theft offense into a CIMT, that precedent is not retroactive, and the conviction in the instant case predated that precedent. The court also held that although a robbery conviction requires a use of force, the minimal force required for conviction is too minimal to qualify as a CIMT.

The full text of Barbosa v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/28/15-72092.pdf

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Fifth Circuit finds that Petitioner Must Provide US Address for Mailing of Notice of Hearing

The Fifth Circuit has determined that an immigration in immigration court proceedings has an obligation to provide a US-based address to which the immigration court can send notices of hearing. The court has no obligation to mail a notice to a foreign address.

The full text of Ramos-Portillo v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60254-CV0.pdf

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