First Circuit Addresses Maine's Gross Aggravated Assault Statute

Today, the First Circuit examined whether Maine's gross aggravated assault statute, which criminalizes engaging in a sexual act with a victim under the age of 14, qualifies as a crime of violence under the federal law sentencing law.  In finding that it does, the court observed that the commission of this offense creates a risk that the perpetrator will intentionally use force against the victim.  This implies that the conviction would likely be considered a crime of violence under 8 USC 16(b), which defines crimes of violence of immigration purposes.

The full text of United States v. Velazquez can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1295P-01A.pdf

Second Circuit Addresses Harm Rising to the Level of Persecution

In Pan v. Holder, the Second Circuit overturned the BIA's determination that the petitioner had not suffered harm severe enough to constitute persecution.  In so doing, the court noted that Pan had suffered three beatings over the course of four years, and that the last of these beatings required a two-week hospitalization.  Moreover, the court took issue with the Immigration Judge's finding that these events, at best, constituted "hate crimes," finding that while not all hate crimes may qualify as persecution, a severe enough hate crime certainly could qualify as persecution.

The full text of Pan v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/74991bd2-3642-4e32-aadd-8ff08c642e86/1/doc/13-203_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/74991bd2-3642-4e32-aadd-8ff08c642e86/1/hilite/

10th Circuit Addresses Jurisdiction and Drug Trafficking

In Mena-Flores v. Holder, the 10th Circuit addressed the jurisdiction-stripping provision that relate to review of removal orders of non-citizens who are removable for criminal reasons, as well as the jurisdiction-stripping provision that precludes review of the granting of discretionary relief.  With regard to the former, the court determined that the jurisdiction-stripping provision only applied to those individuals who had been found removable by the agency based on criminal grounds.  In this case, although the Immigration Judge found that a criminal ground of inadmissibility barred Mena-Flores from adjusting his status, he was not found removal on this ground, and thus, the court of appeal retained jurisdiction to review the agency's decision.  Similarly, the court retained jurisdiction to review the Immigration Judge's denial of Mena-Flores' adjustment of status application (a discretionary form of relief) because the denial was based on statutory, not discretionary, grounds.

The statutory bar at issue is section 212(a)(2)(C) of the Immigration and Nationality Act (reason to believe that the individual has engaged in drug trafficking).  The court upheld the Immigration Judge's application of this bar, even though Mena-Flores never admitted to trafficking, was never observed with drugs by law enforcement, and had no criminal record.  Instead, the hearsay testimony at the criminal trial by several witness was substantial and probative enough to support the Immigration Judge's finding of inadmissibility.

The full text of the decision can be found here: http://www.ca10.uscourts.gov/opinions/13/13-9532.pdf

Fourth Circuit Finds that Maryland's First Degree Arson Statute is an Aggravated Felony

In Espinal-Andrades v. Holder, the Fourth Circuit addressed whether a conviction for first-degree arson in Maryland qualifies as an arson aggravated felony.  Espinal-Andrades argued that her state conviction was not a categorical match to the federal generic definition of arson because it was missing the jurisidictional requirement that the destroyed property be "used in interstate or
foreign commerce."  The Fourth Circuit deferred to the contrary Board of Immigration Appeals' decisions in Matter of Bautista and Matter of Vasquez-Muniz, and found that this jurisdictional element is not required in a state conviction.  Thus, Maryland's first-degree arson statute categorically matches the federal generic definition of an arson aggravated felony.

The full text of the decision can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132418.P.pdf 

First Circuit Addresses Equitable Tolling and Jurisdictional Issues for Motions to Reopen

Earlier this week, the First Circuit issued a decision in Wan v. Holder.  Wan challenged the denial of a motion to reopen.  The Board of Immigration Appeals (Board) denied the motion, in part, because Wan had not exercised the due diligence necessary to toll the 180-day filing deadline for an exceptional circumstances motion to reopen.  On appeal to the circuit, Wan challenged this finding, and also asserted that the Board engaged in impermissible fact-finding.

The First Circuit determined that it lacked jurisdiction to determine if the Board had engaged in impermissible fact-finding because Wan had not properly exhausted this argument.  Instead, Wan needed to raise this argument in a motion to reconsider before the Board, and thus, give the Board the opportunity to consider the issue.  In so holding, the court joined the Fifth and Tenth Circuit's decisions on this issue.

Turning to Wan's request to toll the filing deadline for a motion to reopen, the court noted that whether the doctrine of equitable tolling applied in immigration proceedings remained an open question.  It declined to decide the issue, finding that in any event, Wan had not exercised the requisite due diligence to invoke the equitable tolling doctrine.

Interestingly, the court proceeded to issue a decision in this case, despite a motion informing the court of Wan's intention to apply for administrative relief under the newly-announced Deferred Action for Parental Accountability (DAPA) program.  

The follow text of the decision can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1893P-01A.pdf

Sixth Circuit Addresses Ohio Arson and Domestic Violence Convictions

In a federal criminal case, the Sixth Circuit addressed whether an Ohio state conviction for arson matched the federal generic definition of arson and whether an Ohio state conviction for domestic violence qualified as a crime of violence under federal sentencing laws.  The court determined that Ohio's arson statute (criminalizing knowingly causing or creating a substantial risk of physical harm to property without the victim’s consent by means of fire or explosion) was a categorical match to the federal generic definition of arson, which requires "the intentional or malicious burning of any property."  The court rejected the petitioner's argument that the statute must include an element of a risk of harm to people.  Though this determination was made in the context of a federal sentencing case, it has implications for immigration law, which defines aggravated felonies to include offenses involving explosive materials.

Ohio's domestic violence statute criminalizes knowingly causing, or attempting to cause, physical harm to a family or household member.  Physical harm, in turn, is defined as any injury, illness, or other physiological mpairment, regardless of its gravity or duration.  The court determined that this met the definition of a crime of violence under the federal sentencing law because it has as an element the use, attempted use, or threatened use of physical force against another.  Given the similarities between the definition of a crime of violence under federal sentencing law and immigration law, this analysis certainly has implications for immigration court proceedings as well.

The full decision in US v. Gatson can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0007p-06.pdf

Eighth Circuit reviews a Credibility Determination

Last week, the Eighth Circuit issued its decision in Chen v. Holder.  Chen applied for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and cancellation of removal for non-lawful permanent residents.  Chen's testimony and her documentary evidence conflicted regarding her date of entry, and her testimony about her travels to the United States was inconsistent.  She also testified inconsistently regarding events in China that took place after she came to the United States.  Because of these inconsistencies, the Immigration Judge determined that she had not demonstrated that she filed her asylum application within 1 year of her entry into the United States, or had she established the 1-year filing deadline should be tolled to changed circumstances in China.  The Board of Immigration Appeals (Board) affirmed this credibility determination.

With regard to her withholding of removal and protection under the CAT, the Immigration Judge noted that evidence in the record demonstrated tacit acceptance of Christian house churches by the Chinese government.  In addition, Chen's mother had continued to practice Christianity in China, and had not been harmed or threatened for years.  Chen's children had visited China for substantial periods of time without being harmed or threatened.   When considered with Chen's incredible testimony, the Immigration Judge determined that Chen failed to demonstrate a clear probability of persecution or torture in China. The Board affirmed these determinations as well.

With regard to her cancellation of removal application, the Immigration Judge found that Chen had not demonstrated the requisite exceptional and extremely unusual hardship to her U.S. citizen children.  Though she had argued that as U.S. citizens, her children would not be entitled to government-funded education or health care, the Immigration Judge discredited her testimony due to its inconsistencies.  The Board similarly affirmed this determination.

On appeal to the Eighth Circuit, Chen argued that the adverse credibility finding
was erroneous because it was "not based on a fair gleaning of the record" and because
inconsistencies in her testimony were simply "innocent mistakes."  The court determined that these claims "amount[ed] to a quarrel with the [IJ's and] BIA's discretionary factual determination," and that therefore, it lacked jurisdiction to review whether Chen demonstrated changed circumstances that would provide an exception to the one year filing deadline. 

Turning to Chen's applications for withholding of removal and protection under the CAT, the court acknowledged the evidence indicating that the Chinese government tolerates unsanctioned Christian groups, that Chen's mother had not been harmed despite continuing to practice Christianity, and that Chen's children had visited China without being harmed after she filed her applications for asylum, withholding of removal, and protection under the CAT.  As such, substantial evidence supported the Board's denial of her applications.

In support of her appeal of the Board's denial of her cancellation of removal application,  Chen argued that the Board committed "legal error" because it did not "truly take into account" what would happen to the children if their father were also removed from the United States and they had to go to China.  The court found that this argument was simply a challenge to the Board's discretionary determination, not its application of the law.  As such, the court had no jurisdiction to review the determination.

 The full text of Chen v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/01/133495P.pdf

FOURTH CIRCUIT ADDRESSES VIRGINIA'S CRIME OF UNAUTHORIZED USE OF A MOTOR VEHICLE

In a precedent decision issued today, the Fourth Circuit determined that a conviction in Virginia for unauthorized use of a vehicle does not qualify as a theft offense aggravated felony.  After analysis state case law interpreting the statute of conviction, the court determined that it criminalizes de minimis deprivations of ownership interests, which the court described as "glorified borrowing."  Because this conduct falls outside the generic definition of a theft offense, the conviction does not serve as a ground of removability.  The language of the decision suggests (though does not explicitly state) that the statute is overbroad AND non-divisible, meaning that a modified categorical analysis will never be appropriate.  

The full text of Castillo v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/14/13-10322.pdf

Ninth Circuit Reaffirms that Kidnapping is a Crime of Violence

In a federal criminal proceeding, the Ninth Circuit again affirmed that kidnapping under section 207(a) of the California Penal Code is a crime of violence.  Although this is not a new revelation, there was some hope that the court's 2013 decision in Castrijon-Garcia v. Holder, which held that kidnapping was not categorically a crime involving moral turpitude, signaled a change in direction for evaluating the immigration consequences of this conviction.  Notably, it does not appear that the petitioner in today's case argued that Castrijon-Garcia had any impact on the analysis, so this argument remains open for future cases.

The court also affirmed that an attorney's factual allegations can be used to sustain removability.  In the instant case, the petitioner's former attorney conceded that a controlled substance conviction involved methamphetamine, thus relieving the government of any further burden to prove his removability for this conviction.

The full text of United States v. Zamudio can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/14/13-10322.pdf

Eighth Circuit Addresses False Claims to US Citizenship on I-9 Forms

Today, the Eighth Circuit addressed whether checking the "U.S. citizen or national" box on an I-9 form can constitute a false claim to U.S. citizenship.  The court reaffirmed its prior case law that checking this box on an I-9, on its own, does not necessarily establish a false claim to U.S. citizenship.  However, because the case arose in the context of eligibility for relief (the petitioner was seeking adjustment of status), the petitioner bore the burden of proving that his action did not constitute a false claim to U.S. citizenship that would render him inadmissible.  The petitioner testified that he did not know what a U.S. national was, that he had represented himself to be a U.S. citizen on his college application, and that he had not followed the application process laid out by his college for non-U.S. citizens.  Thus, the court found that he had not met his burden of demonstrating that his misrepresentation on the I-9 form was not a false claim to U.S. citizenship that rendered him inadmissible. 

The full text of Mayemba v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/01/131558P.pdf

Fourth Circuit addresses tolling of the 245(i) sunset date

Yesterday, in Prasad v. Holder, the Fourth Circuit became only the second circuit court of appeals (after the Ninth Circuit) to address whether the April 30, 2001 sunset date for adjustment of status under section 245(i) of the INA is a statute of limitations (which could theoretically be tolled) or a statute of repose (which sets an absolute deadline).  Prasad had hired an attorney to file a labor certification on his behalf before the sunset date, but to the attorney's incompetence, the labor certification was filed two months late.  Prasad argued that his former attorney's ineffective assistance should toll the filing deadline.  Unfortunately for Prasad, the court followed the Ninth Circuit's lead in Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008), and found that the sunset date is a statute of repose, not subject to equitable tolling.

The full text of Prasad v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141034.P.pdf

Ninth Circuit maintains that assault with a deadly weapon is a crime of violence

For those who follow the crimmigration trends in the Ninth Circuit, there was great hope that last year's decision in Ceron v. Holder (finding that assault with a deadly weapon under section 245(a)(1) of the California Penal Code was not categorically a crime involving moral turpitude) would also lead to new case law finding that a conviction under this statute does not qualify as a crime of violence.  Alas, the Ninth Circuit, in a brief criminal sentencing decision yesterday, dashed our hopes.  The court followed its past precedent on the issue, and found that Ceron did not impact that precedent.

The full decision in United States v. Jiminez-Arzate can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/12/12-50373.pdf

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