Second Circuit Finds that NJ Conviction for Distribution of Controlled Substance near a School is not an Aggravated Felony

The Second Circuit has determined that a New Jersey conviction for distribution a controlled substance near a school is not an aggravated felony. The Court noted that the New Jersey statute criminalizes dispensing a controlled substance near a school, while the federal school zone prohibition does not. In addition, New Jersey criminalizes conduct on school buses, while the federal statute only criminalizes conduct within 1000 feet of a school’s real property. Third, the general federal distribution statute exempts distribution of a small amount of marijuana for no remuneration, while the New Jersey statute does not. The Court determined the statute was not divisible, and as such, was not an aggravated felony.

The full text of Stankiewicz v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/576dc939-def0-4fbb-a9ea-818732765688/3/doc/21-6265_22-6121_opn.pdf

Third Circuit Defers to Finding that NJ Disorderly Persons Offenses are Convictions; Remands Gender-Based Asylum Claim

The Third Circuit has deferred to the agency’s determination in Matter of Wong that New Jersey disorderly persons offenses are convictions for immigration purposes. However, the court remanded for further analysis of whether the proposed social group of “Honduran women in a domestic relationship where the male believes that women are to live under male domination” is cognizable for asylum purposes.

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

https://www2.ca3.uscourts.gov/opinarch/221374p.pdf

Third Circuit Finds that NJ Conviction for Engaging in Sexual Conduct which would Impair or Debauch the Morals of a Child is Crime of Child Abuse

The Third Circuit has concluded that a New Jersey conviction for “engaging in sexual conduct which would impair or debauch the morals of a child” is a crime of child abuse, noting that the use of the word “would” indicates a probability (rather than a mere capacity) to cause harm to the child. The court also analyzed state case law which indicated that the conduct must have a tendency to cause harm to the child.

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

https://www2.ca3.uscourts.gov/opinarch/202651p.pdf

BIA Finds that Disorderly Persons Offense in NJ Constitutes Conviction

The Board of Immigration Appeals has determined that a disorderly persons offense in New Jersey constitutes a conviction for immigration purposes. In so doing, the BIA analyzed which rights a defendant had in a disorderly persons proceeding. The BIA noted the following protections must be in place for a proceeding to result in a conviction: oof beyond a reasonable doubt; and the rights to confront one’s accuser, a speedy and public trial, notice of the accusations, proof beyond a reasonable doubt; and the rights to confront one’s accuser, a speedy and public trial, notice of the accusations, compulsory process for obtaining witnesses in one’s favor, and against being put in jeopardy twice for the same offense. “In short, we determine whether a proceeding is “criminal” by reference to those rights of criminal procedure guaranteed by the Constitution—as incorporated against the States by virtue of the Fourteenth Amendment—and which are applicable without limitation in all criminal prosecutions.”

“However, not all constitutional rights of criminal procedure are required in every criminal proceeding. Some rights are contingent. For example, the right to a jury trial applies only if the charged offense is deemed “serious,” and the right to counsel applies only if a conviction can result in loss of liberty. Because contingent rights are not required in every criminal proceeding, their absence cannot be dispositive with respect to whether a particular proceeding is criminal in nature. Similarly, the absence of a right to indictment by grand jury is immaterial, because that right has not been made applicable to the States through the Fourteenth Amendment.”

The full text of Matter of S. Wong can be found here:

https://www.justice.gov/eoir/page/file/1488596/download

Third Circuit finds that NJ 2nd Deg Robbery Conviction is Theft Aggravated Felony

The Third Circuit has determined that a New Jersey conviction for second-degree robbery is a theft-related aggravated felony because the statute always requires that property be obtained without the owner’s voluntary and intelligent assent. Notably, the court includes various of forms of theft-by-deception in this definition of crimes committed without voluntary and intelligent assent.

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

https://www2.ca3.uscourts.gov/opinarch/173640p.pdf

Third Circuit Finds that New Jersey Conviction for Criminal Sexual Contact is an Aggravated Felony

The Third Circuit has determined that a New Jersey conviction for criminal sexual contact is a sexual abuse of a minor aggravated felony. The court determined that the federal generic offense of sexual abuse of a minor under the INA contains no scienter requirement as to the victim’s age. “As a result, the federal generic offense of sexual abuse of a minor requires proof that the defendant (1) knowingly engaged in an act that constitutes criminal sexual contact; and (2) engaged in such an act with a person who is of the age the statute covers, without the need for the government to prove that the defendant knew or reasonably should have known the person’s age.”

Turning to the statute of conviction, the court determined that it was divisible between the various subsections of the statute. The petitioner was convicted of the subsection requiring that “[t]he victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.” “Thus, because a knowing criminal sexual act involving a victim of a particular age, whose age may not be known to the perpetrator, is an element of both the federal generic offense and the New Jersey criminal sexual contact offense, the two are a categorical match.”

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

https://www2.ca3.uscourts.gov/opinarch/191740p.pdf

Third Circuit Determines that New Jersey Terroristic Threats Conviction is not CIMT

The Third Circuit has determined that a New Jersey terroristic threats conviction is not a crime involving moral turpitude. The court first determined that the statute is overbroad and divisible. The court then determined that the the basis for the petitioner’s conviction is “threaten[ing] to commit any crime of violence 13 with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror.”

“New Jersey’s terroristic-threats statute criminalizes threats that merely carry the risk of ‘convey[ing] menace or fear of a crime of violence’ to another person, and whereas those statutes required a mental state exhibiting ‘extreme’ and ‘depraved’ indifference to a person’s life, New Jersey defines recklessness to include ‘heedless[ness],’ ‘foolhardi[ness],’ or ‘scorn for the consequences’ of causing fear in another. New Jersey’s terroristic-threats statute, therefore, lacks the type of aggravating factors that we have previously recognized would make an offense inherently vile and depraved.”

“In sum, Larios’s crime of conviction has a minimum mens rea of recklessness but lacks any statutory aggravating factors, so the least culpable conduct is a reckless threat to commit a violent property crime, which . . . is not turpitudinous.”

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

https://www2.ca3.uscourts.gov/opinarch/192594p.pdf

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

Third Circuit Finds that NJ Conviction for Possession of Child Pornography is Crime of Child Abuse but not Aggravated Felony

The Third Circuit has determined that a New Jersey conviction for possession of child pornography is a crime of child abuse but not an aggravated felony relating to child pornography.

With respect to the aggravated felony charge, the court noted that “among the conduct that the state statute criminalizes, by means of its definition of ‘sexual contact,’ is the knowing possession of a visual depiction of an intentional touching, ‘either directly or through clothing,’ of the inner thigh, breasts, or buttocks by either the minor victim or adult actor for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.’ By contrast, in terms of conduct other than sexual acts and sadistic or masochist abuse, the federal offense prohibits the ‘lascivious exhibition’ of only the ‘genitals or pubic area of any person.’” In addition, there are depictions of nudity criminalized by the New Jersey statute that would not fall within the ambit of the federal statute.

With respect to the crime of child abuse charge of removability, the court noted that “[t]he conviction at issue here categorically matches the part of the BIA’s definition of child abuse that includes ‘any act that involves the use or exploitation of a child as an object of sexual gratification.’ Although Salmoran argues that possession of child pornography does not entail exploitation of the child, this position is untenable. “

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

http://www2.ca3.uscourts.gov/opinarch/172683p.pdf

Third Circuit Examines New Jersey Drug Trafficking Convictions

The Third Circuit has determined that a New Jersey convictions for possessing cocaine with intent to distribute, distributing cocaine, and conspiring to possess cocaine with intent to distribute all qualify as drug trafficking aggravated felonies. In so doing, the court held that New Jersey attempt law is coextensive with federal law in that both require a substantial step that strongly corroborates the actor’s criminal purpose, and both hold that solicitation can count as a substantial step. The court recognized that its decision created a circuit split with the Ninth Circuit on the definition of attempt under the Controlled Substances Act.

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

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1827&context=thirdcircuit_2018

Fourth Circuit Finds New Jersey Conspiracy Conviction to be Controlled Substance Offense

The Fourth Circuit, applying Matter of Beltran, has found that a New Jersey conviction for conspiracy is a controlled substance violation.  The Court rejected that argument that a conspiracy charge must be analyzed under the categorical approach in the same way as any other conviction, because inchoate crimes suggest the commission of another offense.  Instead, the Immigration Court may consult the record of conviction to determine what was the object of the conspiracy.  In the instant case, the indictment indicated that the petitioner was conviction of conspiracy to distribute marijuana.  As such, his conviction qualifies as a controlled substance offense.

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

http://www.ca4.uscourts.gov/opinions/171213.P.pdf

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

Third Circuit Finds NJ Conviction for Receiving Stolen Property to be Aggravated Felony

The Third Circuit has determined that a New Jersey conviction for receipt of stolen property in the third degree qualifies as an aggravated felony.  The mens rea element of the statute - which requires a defendant to know the property is stolen or to believe that it is probably stolen - meets the mens rea requirement enumerated in Matter of Deang.  

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

http://www2.ca3.uscourts.gov/opinarch/171846p.pdf

In an Unpublished Decision, the Third Circuit Addresses Burdens of Proof and Scolds the Government for Wasting the Court's Time

Cruz-Chang was convicted of a drug offense.  The government argued that the conviction was an aggravated felony, but the Immigration Judge disagreed, and granted Cruz-Chang cancellation of removal.  The government appealed, and while on appeal. requested remand based on a transcript from the criminal proceedings that it alleged showed Cruz-Chang was convicted of an aggravated felony.  The Board of Immigration Appeals (BIA) granted remand, and on remand, the court reversed, and denied cancellation on the basis of an aggravated felony conviction.  Cruz-Chang appealed, and the BIA affirmed.  Cruz-Chang appealed to the Third Circuit, who remanded at the Government's request, to determine what impact that the Supreme Court's decision in Descamps. On remand, the Government argued that Descamps had no impact on the case, and the BIA affirmed.  Cruz-Chang again appealed to the Third Circuit.

The court first determined that the statute of conviction - which criminalized distribution and dispensing a controlled substance - necessarily involved a trafficking element, because it was not clear if distribution and dispensing were alternative means or alternative elements of the offense.  Given this ambiguity, the Court concluded that the certainty required by the Supreme Court's recent conviction in Mathis was not present with respect to the issue of the aggravated felony.  As such, Cruz-Chang is eligible for cancellation of removal.  

The court also scolded the Government for what it perceived as its waste of judicial resources.  "In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering what effect, if any, Descamps has on this immigration case.  Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal.  These were issues well outside the scope of our remand.  Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in 'obstructionism' by opposing the Government’s remand to the IJ to consider the plea transcript.  It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation.  We trust that this was an unfortunate mistake that will not be repeated."

The full text of Cruz-Chang v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/144570np.pdf