Does a non-morally turpitudinous crime become a crime involving moral turpitude due to a gang enhancement? The Ninth Circuit says no!

It's not unusual for the Ninth Circuit and the Board of Immigration Appeals to fight about....well...everything.  And last week, the Ninth Circuit refused to defer to the BIA's determination that a gang enhancement can turn a non-morally turpitudinous offense (such as a simple assault) into a crime involving moral turpitude.  Mr. Hernandez-Gonzalez was convicted of possession of a billy club.  At the sentencing phase, the criminal court added an enhancement because the conviction was related to gang activity.  The Ninth Circuit noted that possession of a billy club is widely acknowledged to be non-morally turpitudinous conduct.  It also reiterated its prior holding that non-fraud crimes will rarely be considered crimes involving moral turpitude unless they require an intent to injury, actual injury, or a protected class of victims.  Neither the underlying weapons possession charge nor the gang enhancement included these factors.   Thus, the gang enhancement did not transform the conviction into a crime involving moral turpitude.

In reaching its conclusion, the Ninth Circuit declined to accord Chevron deference to Matter of E. E. Hernandez, which held that a conviction for vandalism with a gang enhancement was a crime involving moral turpitude.

The full text of Hernandez-Gonzalez v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/13/11-70359.pdf

When is Corroborating Documentation Available? The Seventh Circuit Weighs In

Sibanda fled repeated rape attempts from her brother-in-law, seeking to claim her as his second wife when her husband passed away.  An Immigration Judge denied her asylum application, finding that she had no produced any affidavits, police reports, or country conditions reports that verified these sexual assaults.  The Seventh Circuit reversed, finding that such corroborating documentation was not reasonably available, and thus, the failure to produce it could not be grounds for denying Sibanda's application.  In so holding, the court recognized that members of Sibanda's family and tribe, who had repeatedly urged her to marry her brother-in-law because tribal custom dictated that she do so, were unlikely to provide affidavits corroborating her assertion that they failed to protect her from harm.  It was similarly unreasonable to expect that the police would verify such an assertion.  As for country conditions reports, the Judge used a wikipedia article (a copy of which was not provided to Sibanda) to quiz her about "bride price" customs.  The Judge did not, however, see fit to consult more reliable and available reports from the U.S. and Australian government that confirmed Sibanda's claim.  

The full text of Sibanda v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D02-13/C:14-2157:J:Wood:aut:T:fnOp:N:1501058:S:0

The BIA Clarifies the Rules of Divisibility

In response to the Department of Homeland Security's request for partial reconsideration of Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), the Board of Immigration Appeals clarified that with respect to aggravated felony convictions, Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps v. United States, 133 S. Ct. 2276 (2013), reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant circuit.  Moreover, since the Tenth Circuit has taken an approach to divisibility different from that adopted in Matter of Chairez, the law of the Tenth Circuit must be followed in that circuit.  Unfortunately for Mr. Chairez, he was removable under the Tenth Circuit's definition of divisibility.

The full text of the new decision in Matter of Chairez can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3825.pdf 

The BIA Addresses the Citizenship of Children Born out of Wedlock

Last week, the Board of Immigration Appeals (BIA) attempted to reconcile its inconsistent treatment of children born out of wedlock.  The BIA determined that a person born out of wedlock may qualify as a legitimated “child” of his or her biological parents for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible.

On July 3, 1988, Mr. Cross was born out of wedlock in Jamaica to parents who were not then citizens or nationals of the United States.  At the time of his birth, the Jamaican Status of Children Act (“JSCA”) of 1976 had eliminated the legal distinctions between legitimate and illegitimate children in that country. In 1995, Mr. Cross’ father placed his name on this birth certificate, thereby qualifying Mr. Cross as a legitimated child for purposes of visa preference classification under American immigration law.  Mr. Cross' father eventually immigrated to the United States and subsequently accorded him a visa preference classification as his “child.”  On September 2, 2000, at the age of 12, Mr. Cross was admitted to the United States as an immigrant and thereafter resided in this country as a lawful permanent resident. On August 3, 2001, his father became a United States citizen by naturalization while Mr. Cross was in his father’s legal custody. 

At that time, the law provided that a child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.  

The Immigration Judge found that Mr. Cross did not qualify as the child of his father because the definition of child under the immigration law was "an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere . . . , if such legitimation . . . takes place before the child reaches the age of 16 years . . . , and the child is in the legal custody of the legitimating . . . parent or parents at the time of such legitimation."  In so holding, the Judge relied on prior BIA caselaw finding that the only way to legitimate a child under Jamaican law was for the child's parents to marry (which Mr. Cross' parents had not done).

Recognizing the tension between these interpretations, the BIA determined that a person born abroad to unmarried parents can be a “child” for purposes of section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States).  Thus, Mr. Cross was indeed a citizen, and the BIA terminated the removal proceedings against him.

The full text of Matter of Cross can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3826.pdf

Eighth Circuit Addresses Particular Social Groups in Kenya

Kanugu provided financial support to a group of vigilantes who opposed the Munguki, a powerful organized crime group in Kenya.  For his opposition, he was kidnapped and his daughter was raped by the Munguki.  However, because he agreed with the Immigration Judge's characterization of his particular social group as "individuals who were openly opposed to the Munguki sect," the Immigration Judge determined that the group was too diffuse to qualify as a particular social group for asylum purposes.   The Eighth Circuit would not permit Kanugu to narrow the parameters of the group on appeal.  Thus, it affirmed the denial of his asylum application.

The full text of Kanugu v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/02/133563P.pdf

Ninth Circuit Examines a Washington Conviction for Delivery of a Controlled Substance

The Ninth Circuit addressed whether a conviction for delivery of heroin under Revised Code of Washington § 69.50.401(a)(1)(i) was a “drug trafficking offense.”  The court held that the defendant had not show a realistic probability that the statute could covered the act of administering a drug.  He had identified any cases where the state had prosecuted someone for this conduct.  The court distinguished this from other overbroad statutes which specifically identified conduct in the plain wording of the statute that fell outside the federal generic definition, stating that the statute at issue "does not expressly include conduct not covered by the generic offense, but rather is silent as to the existence of a parallel administering exception."  Thus, the conviction could be properly characterized as a drug trafficking offense.  This case could have implications for immigration proceedings, where drug trafficking offenses can be classified as aggravated felonies or where a respondent can be found inadmissible if there is reason to believe he engaged in drug trafficking. 

The full test of US v. Borgos-Ortega can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/05/13-50237.pdf

The Eleventh Circuit Addresses the Immigration Consequences of a Florida Conviction for "Launching a Missile at a Structure"

Sometimes, you just can't make this stuff up.  You read the title correctly - launching a missile at a structure.  The question is, when a respondent is convicted of doing this in Florida, is he convicted of a crime of violence?  In the context of a federal sentencing case, the 11th Circuit said "maybe."

The court found that the statute was divisible with regard to the level of intent required (wanton or malicious), and that only wanton conduct would demonstrate that the person had "acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person," and thus, committed a crime of violence.  Because the record of conviction was inconclusive with regard to the intent involved in Estrada's conviction, the conviction could not be properly classified as a crime of violence.  Although this case was decided in the context of federal sentencing, one of the definitions of a crime of violence for immigration purposes parallels the sentencing provision, and thus, the case could have "crimmigration" implications as well.

You can read the full text of U.S. v. Estrada here: http://media.ca11.uscourts.gov/opinions/pub/files/201410230.pdf

Fourth Circuit Overturns an Adverse Credibility Determination; Cites Problems with the Interpreter

Any attorney who has practiced in Immigration Court can give you a war story (or several dozen) about the unreliability of the translation services provided in court.  It's hit-or-miss; sometimes the interpreter is competent, sometimes he isn't.  Today, the Fourth Circuit reversed an adverse credibility decision, citing in large part the evidence that the interpretation services were insufficient.  The court began by reviewing the telltale signs of interpretation problems: 

First, direct evidence of incorrectly translated words is persuasive evidence of an incompetent translation. Second, unresponsive answers by the witness provide circumstantial evidence of translation problems. A third indicator of an incompetent translation is the witness’s expression of difficulty understanding what is said to him.

The court then proceeded to discuss how all three of these indicators were present in the case, noting that

The two days of testimony were translated by two different interpreters, with nearly all instances of potential confusion (involving both the petitioner and his witness) arising on the first day. The transcript of that day reveals:

• An instance when the interpreter failed to translate Ilunga’s statement that he was sexually assaulted in jail, an omission caught by Ilunga’s attorney, leading to the translator’s opaque admission after the fact that he thought Ilunga “was not speaking clearly and this interpreter, perhaps, what he could hear from him [sic]” 

• A repeated disconnect between questions and answers

• At least 16 times during the first day’s testimony when Ilunga or Kalala stated they did not understand a question 

•An instance when Ilunga’s attorney believed the interpreter translated Ilunga’s statement as saying he suffered at the hands of the political party he worked for, instead of the party he opposed

• Confusion about whether Ilunga testified that he told his wife and children to flee their home while he was still in prison or after 

• At least 11 times when the interpreter needed a question repeated

• Frequent grammatical errors and questionable word choices

The court concluded that these issues should have been warning flags to the Immigration Judge, and thus, that the Immigration Judge's credibility analysis was flawed.

The complete text of Ilunga v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132064.P.pdf

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