BIA Addresses Removability for a Crime of Child Abuse

The Board of Immigration Appeals (BIA) determined that a conviction in New York for endangering the welfare of a child qualifies as a crime of child abuse because it requires knowingly engaging in conduct likely to be injurious to a child.  Though this case will come as a disappointment to attorneys in New York, attorneys in California were given a ray of hope.  Whether California's misdemeanor child endangerment statute qualifies as a crime of child abuse has been an open and contentious question for years.  However, this paragraph offers hope that the issue has been put to rest and that a conviction under the statute will not qualify as a crime of child abuse:

We recognize that there are child endangerment statutes that do not require a sufficiently high risk of harm to a child to meet the definition of child abuse, neglect, or abandonment under the Act.  For example, the child endangerment statute at section 273a(b) of the California Penal Code criminalizes conduct that places a child “in a situation where his or her person or health may be endangered.”  In Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), the Ninth Circuit held that this statute did not categorically define a “crime of child abuse” within the meaning of the Act. The court observed that the statute does not “require that the circumstances create any particular likelihood of harm to a child” and punishes “conduct that creates only the bare potential for nonserious harm to a child.”  In this regard, the court cited as an example of facts that did not meet our definition of child abuse the case of a parent “placing an unattended infant in the middle of a tall bed without a railing, even though the child was never injured.”  Based on the facts as construed by the court, we would agree that they do not, alone, define a crime of child abuse or neglect. 

The full text of Matter of Mendoza Osorio can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2016/02/09/3856.pdf

Eighth Circuit Addresses Second Degree Battery Conviction in Arkansas

In the context of a criminal sentencing hearing, the Eighth Circuit determined that a conviction for second degree battery in Arkansas may qualify as a crime of violence.  The statute is divisible, but subsection (a)(4) - which requires intentionally or knowingly, without legal justification, causing physical injury to a law enforcement officer, a firefighter, a correctional facility employee, a school employee, an elderly person, a young child, a state officer or employee, a healthcare provider, or incompetent - meets the definition of a crime of violence.  Given the similarity in the definition of a crime of violence in the sentencing context and a crime of violence in the immigration context, this ruling likely indicates the subsection at issue is a crime of violence for immigration purposes, too.

The full text of US v. Rice can be found here: http://media.ca8.uscourts.gov/opndir/16/02/143615P.pdf

Sixth Circuit Addresses Jurisdiction

The Sixth Circuit has determined that when the Board of Immigration Appeals dismisses an appeal, but remands a case to an Immigration Judge solely for the purpose of entering an order of voluntary departure, there is a final removal order for the purpose of appellate jurisdiction.  If the petitioner does not appeal at that time, but instead waits for the Immigration Judge to enter a decision, and then appeals that decision to the Board of Immigration Appeals, the circuit court will not have jurisdiction over the first Board of Immigration Appeals decision (on the merits of the removal proceedings).

The full text of Hih v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/16a0032p-06.pdf

Eleventh Circuit Finds that House Arrest Constitutes a Period of Confinement and Incarceration

The Eleventh Circuit has determined that a burglary conviction accompanied by a sentence of one year of house arrest qualifies as an aggravated felony.  The court noted that "[a] term of imprisonment . . . includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part."  Under section 101(a)(48)(B) of the Immigration and Nationality Act, a term of imprisonment includes “all parts of a sentence of imprisonment from which the sentencing court excuses the defendant, even if the court itself follows state-law usage and describes the excuse with a word other than ‘suspend.’”  Because house arrest is a form of confinement, the Board of Immigration Appeals reasonably determined that house arrest is a “term of imprisonment” under section 101(a)(48)(B) of the Immigration and Nationality Act.  

The full text of Herrera v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201512093.pdf

Ninth Circuit Defers to the Regulatory Interpretation of 245(i) Protection based on a Labor Certification

The Ninth Circuit has determined that if an employer filed a labor certification prior to April 30, 2001, but substituted a new beneficiary of that certification after April 30, 2001, that beneficiary is not grandfathered under section 245(i) of the Immigration and Nationality Act.  In so doing, the court deferred to the regulation at 8 C.F.R. 1245.10(j), finding it to be a permissible interpretation of the ambiguous statute found in section 245(i) of the Immigration and Nationality Act.

The full text of Valencia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/02/13-70414.pdf

Ninth Circuit Extends Federal First Offender Act Treatment to Two Convictions Arising out of the Same Incident

The Ninth Circuit has determined that the Federal First Offender Act applies to two convictions for simple possession of a controlled substance arising out of the same event.  Thus, the court applied the ameliorative effects of the Act to an immigrant who was convicted of possession of marijuana and possession of methamphetamine at the same time in the same criminal case.

The full text of Villavicencio-Rojas v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/02/13-70620.pdf

Eighth Circuit Determines that Minnesota Solicitation of Prostitution Conviction is a Crime Involving Moral Turpitude

The Eighth Circuit has determined that a conviction for soliciting prostitution in Minnesota qualifies as a crime involving moral turpitude.  The court rejected the petitioner's argument that the statute did not require a sufficient level of intent or that the statute of conviction included conduct that was not reprehensible.  

The full text of Gomez-Gutierrez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/01/143374P.pdf

Eighth Circuit Allows Immigration Judge to Ignore USCIS Finding

An Immigration Judge ordered Judith Mutle Mutie-Timothy removed for having engaged in a fraudulent marriage to a U.S. citizen for the purpose of acquiring lawful permanent residence.  Subsequently, USCIS approved her VAWA self-petition, finding that her marriage was, in fact, bona fide.  On remand, the Immigration Judge essentially ignored this finding, denying Mutie-Timothy's applications for adjustment of status and a waiver on discretion, disagreeing with USCIS's finding that her marriage was bona fide.

On appeal, the Board of Immigration Appeals affirmed the decision, noting that USCIS only adjudicated the validity of Mutie-Timothy's marriage based on documentary evidence, while the Immigration Judge also had the benefit of hearing her testimony and observing her demeanor.

Because the applications were denied on discretionary grounds, the Eighth Circuit held that it had no jurisdiction to review the denials.  It also found no due process violations were committed by the agency.

The full text of Mutie-Timothy v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/01/143671P.pdf

Ninth Circuit Interprets California Felony Child Abuse Statute

The Ninth Circuit determined that section 273a(a) of the California Penal Code is an indivisible statute; that is, a jury need not decide if a defendant engaged in intentional conduct (injurying a child) or negligent conduct (permitting a child's safety to be placed in danger).  Because negligent conduct is insufficient to qualify as a crime of violence, a conviction under this subsection is not a crime of violence aggravated felony.

The full text of Ramirez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/20/08-72896.pdf

Eighth Circuit Addresses "Citizen or National" Box on the I-9

The Eighth Circuit determined that checking the box on a I-9 affirming that an applicant is a "citizen or national of the United States," on its own, is not sufficient to establish that the applicant made a false claim to U.S. citizenship.  Instead, an adjudicator must ascertain whether the applicant intended to make a false claim.  In the instant case, the petitioner had testified that he would lose his job if he wasn't a U.S. citizen, and thus, the Immigration Judge correctly determined that he intended to falsely represent himself as a U.S. citizen.

The full text of Godfrey v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/01/151027P.pdf

Ninth Circuit Clarifies Jurisdiction

The Ninth Circuit determined that when the Board of Immigration Appeals (Board) remands a case solely for the purpose of entering an order for voluntary departure, a final order of removal exists, and the court has jurisdiction over an appeal of the Board's decision. 

The full decision in Rizo v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/13-74216.pdf

Eighth Circuit Rejects Social Group Composed of "Escapee Mexican Child Laborers"

When Gonzalez Cano was twelve years old, he was kidnapped by members of a cartel. The cartel took him to a labor camp, where he and other captives were held and forced to work growing marijuana and other drug plants. Gonzalez Cano was held captive for five years, until sometime in 2000 when a military group rescued him from the labor camp. Gonzalez Cano spent several months in Mexico City after he was freed, and eventually fled Mexico for the United States.

In the United States, he applied for withholding of removal, based on his membership in the particular social group comprised of "escapee Mexican child laborers."  The court rejected this group, finding it was not socially distinct.  "Whether a given particular social group is perceived as distinct by the society of which it is part depends on evidence that the society 'makes meaningful distinctions' based on the common immutable characteristics defining the group. Here, Gonzalez Cano relies on evidence that other people have suffered the same type of harm he did to establish social distinction. However, this evidence alone is insufficient to support a conclusion that Mexican child laborers who have escaped their captors are 'perceived as a cohesive group by society.'” 

The court also affirmed the agency's finding that no nexus existed between the proposed group and feared harm because the group was defined by the harm suffered by its members.  "As such, his membership in that group could not have been the motive, at least initially, for the persecution."

The full text of Gonzalez Cano v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/01/143730P.pdf

Seventh Circuit Evaluates the Immigration Consequences of an Indiana Conviction for Dealing in Cocaine

In a published decision, the Seventh Circuit examined whether an Indiana conviction for dealing in cocaine qualified as a drug trafficking aggravated felony.  The Indiana statute at issue states that a person is guilty of dealing in cocaine if that individual “knowingly or intentionally manufactures, finances the manufacture of,  delivers, or finances the delivery of cocaine;” or if the individual “possesses, with intent to manufacture, finance the manufacture of, deliver, or finance the delivery of cocaine.”  Both the generic corresponding aggravated felony under the Immigration and Nationality Act and the Indiana statute criminalize manufacturing and delivering illegal drugs. However, the court found that Indiana statute is broader in scope because it also criminalizes financing the manufacture or delivery of illegal drugs. As a result, the modified categorical approach is appropriate, and the court examined the record of conviction to determine which alternative formed the basis of Petitioner’s conviction under the Indiana statute.  Because the complaint indicated that the petitioner had delivered cocaine, the court determined that he had been convicted of a drug trafficking aggravated felony.

The full text of Martinez Lopez v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-12/C:14-3805:J:Bauer:aut:T:fnOp:N:1685948:S:0

Seventh Circuit Interprets the Burden of Proof in Withholding of Removal Proceedings

In a follow up decision to last month's opinion in Rodriguez-Molinero v. Lynch, Judge Posner has again eviscerated the evidentiary requirement that an applicant prove a greater than 50% chance of harm.  Though Rodriguez-Molinero arose in the context of a Convention Against Torture application, and this decision arose in the context of a withholding of removal application, the Court reiterated its belief that the "more likely than not" standard cannot be literally interpreted to require a greater than 50% chance of harm.

"Against all this it can be argued that while the evidence indicates danger to Gutierrez-Rostran if he is returned to Nicaragua, it does not indicate that he is “more likely than not” to be persecuted if he is sent there, which the Supreme Court in INS v. Stevic held is the standard of proof for withholding of removal. That of course is the normal civil standard of proof. But it can’t be taken literally in the immigration context. In an ordinary civil case there are witnesses, lay and/or expert, on both sides of the case, and likewise documentary evidence. But in the usual withholding-of-removal case, including this case, the only evidence is presented by the alien—and the immigration judge appears to have deemed that evidence credible. 

What is missing in a case like this are data that would enable a rational determination of whether there was a greater than 50 percent probability that the alien would lose his life or his freedom if removed to his country of origin. The first step in such an inquiry would be to define the endangered group (obviously not all the Nicaraguans who voted for PLC or PLI candidates) and the second to determine what percentage of them have lost their life or freedom at the hands of the Sandinistas, and also whether that percentage is growing or declining (or not changing). The immigrant is required to present evidence that he faces a significant probability of persecution if he is removed to his country of origin, and Gutierrez-Rostran did present such evidence, as we have seen. He could not be expected to quantify the probability of his being persecuted or killed should he be removed to Nicaragua. The data that would enable such quantification appear not to exist, because to be reliable they would have to specify all persons who had characteristics similar to those of the applicant for withholding of removal and how many of them had been killed or persecuted because of those characteristics. If such data do exist somewhere, the immigration authorities or the State Department may have access to them, but there is no indication of that."

Once again, Judge Posner is very astute in recognizing the realities of Immigration Court and limitations on an applicant's ability to provide evidence.

The full test of Gutierrez-Rostran v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2216:J:Posner:aut:T:fnOp:N:1686672:S: 

Sixth Circuit Defers to Board of Immigration Appeals' Definition of Sexual Abuse of a Minor

Adding to a circuit split, the Sixth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Esquivel-Quintana.  In so doing, the court rejected the Ninth and Fourth Circuit's reliance on 18 U.S.C. § 2243(a) for determining when statutory rape crimes qualify as sexual abuse of a minor aggravated felonies. 

The court also declined to apply the rule of lenity, finding that even though a criminal statute was at issue, it was being interpreted in the civil context, and thus, the rule of lenity did not apply.  The court acknowledged a growing trend to apply the rule to the interpretation of a criminal statute in the civil context. 

The full text of Esquivel-Quintana v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/16a0012p-06.pdf

Eighth Circuit Finds a Conviction for Second Degree Assault in Missouri to be a Violent Felony

A person commits second degree assault in Missouri if he: 

(1) Attempts to kill or knowingly causes or attempts to cause serious physical injury to another person under the influence of sudden passion arising out of adequate cause; or

(2) Attempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument; or

(3) Recklessly causes serious physical injury to another person; or

(4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself; or

(5) Recklessly causes physical injury to another person by means of discharge of a firearm; or

(6) Operates a motor vehicle, and when so operating, acts with criminal negligence to cause physical injury to any person authorized to operate an emergency vehicle, while such person is in the performance of official duties.

The Court assumed the statute was divisible, and proceeded to the modified categorical approach to determine under which prong the petitioner had been convicted.  Having determined from the charging document that he had been convicted of violating subpart 2 (attempting to cause serious injury with a deadly weapon or dangerous instrument), the Court concluded that the statute of conviction contained an element the use, attempted use, or threatened use of physical force against the person of another, and thus, qualified as a violent felony under the Armed Career Criminal Act (ACCA).

In light of the similarities between the definition of a violent felony under the ACCA and the definition of a crime of violence under 18 USC 16(a) (employed in the immigration context), a conviction under this subpart of the statute most likely also qualifies as a crime of violence in the immigration context.

The full text of United States v. Alexander can be found here: http://media.ca8.uscourts.gov/opndir/16/01/151210P.pdf

Seventh Circuit Construes Continuous Residency Requirement for Cancellation of Removal for Lawful Permanent Residents

The Seventh Circuit determined that a lawful permanent resident who commits a controlled substance offense that stops the accrual of his continuous residence, as required for cancellation of removal, cannot restart that clock by leaving the United States and re-entering.  The court deferred to the Board of Immigration Appeals' decision in Matter of Nelson.

The full text of Isunza v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1286:J:Shah:aut:T:fnOp:N:1685168:S:0

Fifth Circuit Discusses Sufficient Proof of a Conviction and Impact of a Foreign Pardon

Ahn Le applied for adjustment of status through his U.S.-citizen wife.  Unfortunately for him, records existed to show that in 1991, he was arrested, convicted and fined for possession of cocaine in Canada.  Though Le testified in Immigration Court that he had not been convicted of this offense, he produced proof that he had applied for a pardon in Canada for this offense, which was granted.  On appeal, the Fifth Circuit identified three relevant issues:  (1) whether the non-citizen or the Government bears the burden of proof in determining whether grounds for mandatory denial of Le’s application for relief do not apply; (2) whether the evidence shows that this burden has been met; and (3) what effect, if any, Le’s pardon has on his admissibility.

Le argued that while a non-citizen generally bears the burden of proving that grounds for denial do not apply and that he is eligible for relief from removal, he did not bear the burden of proof in this instance because the law only allocates the burden of proof concerning factual elements of eligibility to the non-citizen.  Le contended that determining eligibility for adjustment of status, i.e., whether he was convicted of an offense relating to a controlled substance, is a question of law, and thus a burden which the Government must bear. Le also argued that because he could not obtain any additional information regarding his conviction, any ambiguity weighed in favor of finding that his offense did not relate to a controlled substance. 

The Fifth Circuit noted that when an non-citizen’s prior conviction is at issue, the offense of conviction itself is a factual determination, not a legal one.”  However, determining whether that conviction is a particular type of generic offense (i.e. a controlled substance offense) is a legal question.  "In order for Le to meet his burden, he is required to first identify the statute under which his criminal offense arises, something Le has failed to do. Here, Le does not present evidence demonstrating whether he was convicted under a Canadian federal statute, a provincial law, or even a Toronto city ordinance. The record contains no judgment, and any documentation that the immigration judge and the BIA sought from Le in support of his position that his burden has been met is seemingly unavailable or cannot be produced. Despite Le’s contention that he could not have been convicted of such an offense, the record includes a conviction for possession of cocaine and Le provides no statutory basis for his 1991 conviction that comprises of something other than a drug offense. This presentation of an inconclusive record of conviction is insufficient to meet his initial burden of demonstrating eligibility."  "Le’s burden to prove that his conviction did not relate to a controlled substance could have been met, for example, by showing either that he was not convicted of the listed offense, or that his conviction did not involve a drug listed in the federal controlled substance schedules.  In the absence of anything to the contrary, Le has not met his burden."

The court also noted that foreign pardons are generally not recognized for immigration purposes.  

The full text of Le v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60664-CV0.pdf

Seventh Circuit Remand Convention Against Torture Claim Because Board of Immigration Appeals Applied the Wrong Standard of Review

The likelihood that an applicant for protection under the Convention Against Torture (CAT) will be tortured in his home country is a factual one.  As such, the Board of Immigration Appeals (Board) may only review such a determination for clear error.  The clear error standard of review precludes the Board from simply reweighing the evidence to reverse the Immigration Judge.  Rather the Board "must find that, on balance, the weight of the evidence so strongly militates against the IJ’s finding that the BIA is left with the definite and firm conviction that a mistake has been committed.”  The Board must explain how the Immigration Judge clearly erred.  Because the Board engaged in de novo review and re-weighted the evidence, the Seventh Circuit remanded to allow the Board to review the Immigration Judge's decision for clear error.

The full text of Estrada-Martinez v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-31/C:15-1139:J:Hamilton:aut:T:fnOp:N:1680390:S:0

Fourth Circuit Addresses Jurisdiction to Review Administrative Removal Orders

Non-citizens who are not lawful permanent residents and who are convicted of aggravated felonies are subject to an expedited procedure known as "administrative removal."  An Immigration and Customs Enforcement (ICE) officer makes the determination as to whether the person has been convicted of an aggravated felony.  This determination is not reviewable by an Immigration Judge.  If the person expresses a fear of returning to his home country, an asylum officer will conduct a reasonable fear interview, and if the officer determines that the person has a reasonable fear of persecution or torture in his home country, the person will be permitted to apply for withholding of removal and protection under the Convention Against Torture before an Immigration Judge.

Though the Immigration Judge cannot review the aggravated felony determination, a circuit court has jurisdiction to review this determination.  The question posed to the Fourth Circuit is whether the non-citizen must make some effort to challenge the aggravated felony determination with ICE in order to exhaust all of his administrative remedies before bringing a challenge in federal court.  The court noted that "[t]he question of whether DHS's expedited removal procedures provide an alien with the opportunity to challenge the legal basis of his or her removal--and thus whether we have jurisdiction to hear such a challenge when a petitioner fails to raise it before DHS--is one that has split our sister circuits."  Compare Malu v. U.S. Atty. Gen., 764 F.3d 1282, 1288 (11th Cir. 2014) (no jurisdiction), with Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013) (per curiam) (jurisdiction lies).

Though the Fourth Circuit recognized that the Notice of Intent to Issue an Administrative Removal Order gives the non-citizen an opportunity to rebut the charge, it found that such a rebuttal attempt was not a necessary step in order to establish jurisdiction for review with the federal appeals court.  Specifically, the court determined that the rebuttal process is geared toward challenging factual findings made by ICE, but not the legal conclusion that the non-citizen has been convicted of an aggravated felony.

The court advised that "[n]othing in our opinion prevents DHS from changing the Form I-851 to make it clear that DHS wishes to require aliens to raise legal arguments in expedited removal proceedings.  Such a change would provide clear notice to aliens of their right to raise legal issues in a manner that the present form does not.  The opportunity to raise a legal challenge would then become, as we have earlier noted, one of the steps that the agency holds out and therefore an administrative remedy that must be exhausted."

The full text of Etienne v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/142013.P.pdf