The BIA Finds that California Statutory Rape is Sexual Abuse of a Minor; Disagrees with the Ninth Circuit

Today, the Board of Immigration Appeals (BIA), addressed one of California's statutory rape provisions: California Penal Code (CPC) 261.5(c), which criminalizes sexual intercourse between an adult a minor, when there is at least a 3 year age gap between the minor and the adult.  Notably, the Ninth Circuit had previously addressed whether this statute qualified as a sexual abuse of a minor aggravated felony in Estrada-Espinoza v. Mukasey, and found that it was not, in part because it required only a 3-year age gap, and comparable federal crimes required a 4-year age gap.  In addition, the federal law did not address intercourse with minors ages 17 and 18, and the California statute did.  Thus, the Ninth Circuit determined that the statute was not a categorical match to the federal definition of sexual abuse of a minor.  In today's case, the BIA disagreed.  It determined that sexual abuse of a minor can include minors who are 16 and 17 years old, so long as the statute contains a "meaningful age differential" between the minor and the adult.  The BIA then went on to find that CPC 261.5(c) is a categorical match the generic definition of sexual abuse of a minor.  Because the case at issue arose in the Sixth Circuit, the BIA did not follow Estrada-Espinoza, though it recognized that in the Ninth Circuit, that case would still apply.  

Read the full text of Matter of Esquivel-Quintana here: http://www.justice.gov/eoir/vll/intdec/vol26/3824.pdf

Second Circuit Weighs in on 212(h) Waivers for Aggravated Felons

The Second Circuit, in Husic v. Holder, is the latest court to find that an individual who is admitted to the United States in a status other than lawful permanent residence and later adjusts status to lawful permanent residence is not barred from seeking a 212(h) waiver (which waives the immigration consequences of certain criminal convictions) because of a conviction for an aggravated felony.  Husic was admitted to the United States on a tourist visa, and later adjusted his status to lawful permanent residence.  He was convicted of an aggravated felony and placed in removal proceedings, where he argued that he could seek a 212(h) waiver for his conviction.  The Second Circuit, in finding that an individual who enters the United States and later adjusts status is not an individual who has "previously been admitted to the United States as an alien lawfully admitted for permanent residence," joins seven other circuit courts in reaching this interpretation of the aggravated felony bar to 212(h) waivers.  The 8th Circuit is currently the only circuit court to dissent from this  majority view.

You can read the full decision here: http://www.ca2.uscourts.gov/decisions/isysquery/7f8fdc38-cdd6-46e2-8835-896bbfa2dc71/1/doc/14-607_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7f8fdc38-cdd6-46e2-8835-896bbfa2dc71/1/hilite/

Texas Stalking is not a Crime of Violence under the Sentencing Guidelines

Today, the Fifth Circuit addressed whether a conviction under Texas Penal Code 42.072 (stalking) qualifies as "force offense" type of crime of violence under the federal sentencing guidelines.  The court concluded that the offense, which criminalizes behavior that another person fears is threatening bodily injury, does not fall under the category of crimes of violence.  The court relied on prior Fifth Circuit precedent that determined that one can cause bodily injury without the use of attempted use of physical force and thus, the threat of bodily injury can occur in the absence of a threat to use physical force.  Though this case arose in the context of federal sentencing, the rationale could be persuasive for arguing that a stalking conviction is not a crime of violence for immigration purposes under 8 USC 16(a).  

You can find the complete decision in United States v. Rodriguez-Rodriguez here: http://www.ca5.uscourts.gov/opinions/pub/13/13-51021-CR0.pdf

TPS as an Admission for Adjustment of Status

This week, a federal district court in Pennsylvania ruled that Temporary Protected Status (TPS) can serve as an admission for adjustment of status purposes, so long as the TPS beneficiary disclosed his or her prior unlawful entry on the TPS application.  This decision accords with a developing trend in this area of the law.  The Sixth Circuit, in Flores v. USCIS, previously came to the same conclusion, as did a district court in Washington in Ramirez v. Dougherty.  The issue is currently pending before the Ninth Circuit.

This positive trend would be a terrific leap forward for TPS beneficiaries, many of whom have lived in the United States for more than a decade, and who are married to U.S. citizens.  Decisions from courts of appeals (like the Flores decision) could allow these individuals to apply for their green cards from inside the United States, saving them the hardship of being separated from their family while they seek a green card abroad at a U.S. consulate.

The text of the Eastern District of Pennsylvania's decision in Medina v. Beers can be found here: http://www.legalactioncenter.org/sites/default/files/docs/lac/district%20court%20decision.pdf

When is a case ripe for a circuit court appeal? The Ninth Circuit weighs in....

It's very common for an immigrant seeking asylum in Immigration Court to also apply for withholding of removal and protection under the Convention Against Torture (all three forms of relief are contained in one application).  Sometimes, an individual who isn't eligible for asylum (i.e. someone who filed for this relief more than one year after their last entry into the United States and cannot convince a judge that they meet one of the exceptions to the filing deadline) will be granted withholding of removal.  The individual, however, may not agree with the Immigration Judge's decision that he did not timely-file his asylum application or demonstrate an exception to the filing deadline.  An appeal to the Board of Immigration Appeals on this could follow.  During the pendency of the appeal, the immigrant's background checks (completed prior to the grant of withholding of removal) may expire.  If the Board of Immigration Appeals affirms the denial of asylum, but remands the case for further background checks, is the removal order final?  Is it now time to appeal to the appropriate circuit court of appeals?

The Ninth Circuit, recognizing that its prior case law was contradictory regarding this point, revisited the issue in Abdisalan v. Holder, earlier this week.  They answered the above-posed question in the negative, stating that "[w]hen the BIA remands to the IJ for any reason, no final
order of removal exists until all administrative proceedings have concluded."  

Abdisalan, like my hypothetical immigrant above, was denied asylum based on a failure to demonstrate that she had filed her asylum application within one year of her last entry.  With regard to this issue, the Ninth Circuit stated that it was remanding her case to address the open question of whether "a pre–REAL ID Act asylum applicant’s credible and uncontradicted testimony regarding her date of entry meets the statutory 'clear and convincing evidence' standard."  It will be interesting to see if Abdisalan's case climbs the appellate ladder again while this issue is litigated.  

The full text of Abdisalan v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/12/15/10-73215.pdf

Nevada Conspiracy to Commit Burglary is not a Conspiracy Aggravated Felony

Earlier this week, the Ninth Circuit addressed whether a conviction for violating Nev.
Rev. Stat. §§ 199.480 and 205.060(1) (conspiracy to commit burglary) could qualify as a conspiracy aggravated felony.  The court determined that it could not because Nevada's conspiracy statute does not require a defendant to take an "overt act" in furtherance of the conspiracy.  The court rejected the Government's argument that it should look to the common-law definition of conspiracy, which does not require proof of an overt act by the defendant. Instead, the court looked at how the majority of jurisdictions define conspiracy in the modern era. This approach is mandated by the Supreme Court's decision in Taylor v. United States, which states that the generic definition of a crime should be based on the "contemporary usage of the term."  Because the majority of jurisdictions do require an overt act, the court found that the generic definition must also include this element.  Since Nevada's statute does not include this element, it is not a match to the generic definition, and it does not qualify as an aggravated felony.

The full text of the Ninth Circuit's decision in United States v. Garcia-Santana can be read here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/12/15/12-10471.pdf

Ninth Circuit Addresses Motions to Reopen for Individuals Seeking Adjustment of Status before USCIS

The Ninth Circuit has determined that the Board of Immigration Appeal's decision in Matter of Yauri is not entitled to deference, and that the Board has jurisdiction to reopen removal proceedings using their sua sponte authority when an arriving alien seeks to adjust their status before USCIS.  It awaits to be seen if the Board determines that such circumstances rise to the level of "exceptional circumstances" required for a sua sponte reopening.

The most interesting part of the decision was the broad language used by the Ninth Circuit.  The court stated that the Board has broad power to grant a motion to reopen in any case for the
purpose of affording an alien the opportunity to pursue relief from removal before another agency.  I think it's an open (and very interesting!) question whether executive relief (i.e. DACA, prosecutorial discretion) constitutes "relief from removal before another agency."  If so, I'd say there's a new argument that the courts can (and perhaps should!) start granting MTRs for the purpose of applying for DACA and PD.  Let's keep our fingers crossed!

The full decision (Singh v. Holder) can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/13/09-73798.pdf

Ninth Circuit Issues Long-Awaited Decision in Almanza-Arenas!

Crimmigration gurus unite! OK -- that might just be me.  Today the Ninth Circuit issued a long-awaited decision in Almanza-Arenas v. Holder.  The court determined that section 10851(a) of the California Penal Code (vehicle theft) is not a crime involving moral turpitude because it does not require a permanent taking.  Rather, the language "with the intent to either permanently or temporarily deprive" defined alternative means of committing the same crime, but did not define alternative elements of that crime.  

While this, on its own, would have been a nice result for immigrants with California convictions, the Ninth Circuit went a step further, and overruled its previous decision in Young v. Holder, which stated that an inconclusive record of conviction was insufficient to meet a non-citizen's burden or proving his eligibility for immigration benefits.  In plain(er) English, when a conviction contains alternative elements, some of which match the definition of a crime involving moral turpitude and some of which do not, a non-citizen no longer must conclusively prove that he was not convicted of the elements that do not constitute a crime involving moral turpitude in order to qualify for cancellation of removal.  Instead, if the criminal record is unclear about which elements he was convicted of, he is eligible for immigration relief.  For those of you who aren't super crimmigration nerds like me, you'll have to take my word for this: Almanza-Arenas will have widespread, positive impact on immigration cases throughout the Ninth Circuit.  It's a good day for immigration attorneys and their clients with criminal histories who are fighting removal proceedings and trying desperately to remain in the United States with their loved ones!

The full text of the decision can be read here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/10/09-71415.pdf

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