Ninth Circuit addresses two Arizona criminal statutes

We're less than one week into the month, but the Ninth Circuit seems to be on an Arizona crimmigration binge, issuing two decisions in as many days that address the immigration consequences of Arizona convictions.  

On November 5, 2014, the court issued a decision in Ibarra-Hernandez v. Holder, addressing the Arizona statute criminalizing the "taking of the identity of another."  This statute, which criminalizes the use of both fictitious and real identities, is not categorically a crime involving moral turpitude.  It is, however, also divisible.  Thus, the court proceeded to the modified categorical approach and examined Ibarra-Hernandez's plea transcript, which indicated that she used the social security number of a real person to obtain employment.  The court construed this act was a form of theft involving fraud, and therefore, a crime involving moral turpitude.  The court did recognize that the use of a fictitious person's identity would not be a crime involving moral turpitude.  Nonetheless, a potentially harsh result for an undocumented individual individual who uses another person's identity to work, but causes him or her no economic harm (and perhaps even improving his or her future social security income!)

The next day, the Ninth Circuit issued its decision in Leal v. Holder, taking up the Arizona statute defining felony endangerment.  Leal argued that the reckless mens rea needed to sustain a conviction,  which included recklessness based on voluntary intoxication, was insufficient to demonstrate moral turpitude.  The court disagreed, finding that the harmful behavior criminalized by the statute (conduct that creates a substantial, actual risk of imminent death to another person) was severe enough to make up for the lower level of mens rea.  The court concluded that the statute was categorically a crime involving moral turpitude.

The full text of Ibarra-Hernandez v. Holder can be viewed here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/05/11-70739.pdf

The full text of Leal v. Holder can be viewed here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/06/12-73381.pdf

Lai v. Holder: The Ninth Circuit Addresses the Credibility Standards Applied to Asylum Applications

This week, the Ninth Circuit Court of Appeals issued a new decision (Lai v. Holder) on the credibility standards that Immigration Judges must apply to asylum applications.  Credibility analyses are usually very fact-intensive, and often, it's difficult to discern any larger legal lessons that can be applied to future cases.  But in this instance, I was struck by several very interesting points that the court made, which I think will have value in future cases.

Though not critical to the outcome of this particular case, the court recognized a concern that immigration attorneys have been dealing with for decades: the difficulty of communicating effectively through a translator.  In a footnote, the court hypothesized that general, compound questions, such as "Is your application true, correct, and complete?" are not always precise enough to elicit accurate information from non-native English speakers, especially those communicating through translators.  This is a reflection  of the reality that immigration attorneys face each time they try to communicate with a client who does not speak the same language: translators sometimes paraphrase or abbreviate questions, and the client's response will reflect only their understanding of the translated question.  This, unfortunately, can give the impression that the client is providing incomplete or evasive responses.

In addition, the court built on its prior case law recognizing that a person's testimony will be his or her fullest and most complete narrative of events, often more detailed than their asylum application or their declaration.  In this instance, the applicant testified during cross-examination about the arrests of his wife and a fellow church member - events that he learned about after coming to the United States.  These events were not included in his declaration, but the Ninth Circuit was not disturbed by this, recognizing that an asylum applicant's declaration will likely center around events that he personally experienced, and not events that impacted third parties.

Finally, the court addressed an argument that I have seen the Department of Homeland Security put forth many times in asylum proceedings - namely, that a person who was able to leave his or her country of origin without incident must not really be the target of government harm in that country.  The Ninth Circuit disregarded this argument, stating that an individual's apparent ability to leave his or her country of origin without problems is not sufficient on its own to determine that the individual's testimony was not credible.  It's good to see the court finally put this argument, often raised in Immigration Court, to bed.

The full text of Lai v. Holder can be found on the Ninth Circuit's website: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/04/10-73473.pdf