Ninth Circuit Affirms that CA Assault with a Deadly Weapon is a Crime of Violence

The Ninth Circuit has again determined that a California conviction for assault with a deadly weapon, entered before the statute was amended in 2011, is a crime of violence. The court rejected the argument that the statute encompasses negligent conduct. “The essential question is whether assault in California can be committed accidently or whether it requires an intentional use of force. As defined in California, assault ‘requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.’ We conclude that this definition requires an intentional use of force.”

The full text of US v. Vasquez-Gonzalez can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/22/15-10285.pdf

Ninth Circuit Finds AEDPA Amendments to 212(c) apply retroactively to pre-AEDPA conduct/post-AEDPA convictions

The Ninth Circuit has determined that the AEDPA amendments to section 212(c) of the INA, which included barring any person convicted of an aggravated felony on or after April 24, 1996 from seeking 212(c) relief apply retroactively to criminal acts committed prior to the effective date of AEDPA, so long as the conviction was entered after the effective date. The decision included a lengthy dissent from Judge Friedland, who would have found the petitioner eligible for 212(c) relief.

The full text of Lopez v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/22/15-72747.pdf

Ninth Circuit Rejects Equal Protection Challenge to Naturalization Statute; Finds that Arizona Third Degree Escape is not a Crime of Violence

The Ninth Circuit has rejected an equal protection challenge to a statute that required the adoptive parents of children to file naturalization petitions for those children. The Court also determined that Arizona’s third degree escape statute does not require the use of violent force, and therefore, is not a crime of violence aggravated felony.

The full text of Dent v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/17/17-15662.pdf

Ninth Circuit Finds that Nevada Battery with a Deadly Weapon is a Crime of Violence

The Ninth Circuit has determined that a Nevada conviction for battery with a deadly weapon qualifies as a crime of violence. The court noted that “even the least touching with a deadly weapon or instrument is violent in nature.” The statute at issue prohibits “any willful and unlawful use of force or violence upon the person of another . . . committed with the use of a deadly weapon . . . [that results in] [n]o substantial bodily harm to the victim.” To commit simple battery in Nevada, the “force need not be violent or severe and need not cause bodily pain or bodily harm.” As a result, simple battery in Nevada would not ordinarily be a crime of violence under Johnson’s definition of “physical force.” However, “even the least touching with a deadly weapon or instrument is violent in nature,” because it “demonstrates at a minimum the threatened use of actual force.” Thus, if Nevada law requires actual use of a truly “deadly” weapon, then it is a crime of violence.

”As early as 1870, the Nevada Supreme Court defined objects as ‘deadly weapons’ if they satisfied either the inherently dangerous or the functional test.” Under the inherently dangerous test, a deadly weapon is any instrument that “if used in the ordinary manner contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death.” Under the functional test, a deadly weapon is any instrumentality that is “used in a deadly manner.” Under these definitions, the Court concluded that any use of a deadly weapon would qualify as a crime of violence.

The Ninth Circuit rejected the argument that a defendant could be convicted for mere possession of a deadly weapon during a battery, as opposed to the actual use of a deadly weapon.

The full text of US v. Guizar-Rodriguez can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/17/16-10507.pdf

CA Supreme Court Weighs in on Required Parties for SIJS actions

The California Supreme Court has determined that a child’s nonresident, noncustodial parent need not be joined as a party in her parentage action seeking special immigrant juvenile findings. Provided that the absent parent has received adequate notice, the action may proceed even if the parent is beyond the personal jurisdiction of the court and cannot be joined as a party. In addition, any perceived immigration-related motivations for the filing of the parentage action have on bearing on whether the action may proceed. The action may also proceed regardless of whether the court believes it was filed primarily for the purpose of obtaining the protections from abuse, neglect, or abandonment that federal immigration law provides.

“Ultimately we need not decide here whether the courts’ concerns about prejudice would justify Jorge’s joinder as a necessary party if it were feasible to join him. We instead assume, without deciding, that Jorge is a necessary party as to the SIJ finding of abandonment. Because Jorge’s joinder is not feasible, the central question under the mandatory joinder statute is whether the court can, “in equity and good conscience,” make the finding in Jorge’s absence. Under section 389, subdivision (b), the potential prejudice that may flow from a judgment rendered in Jorge’s absence must be weighed alongside other factors: whether the prejudice can be lessened by the shaping of relief; whether a judgment rendered in Jorge’s absence will be adequate; and, as particularly important here, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (Code Civ. Proc., § 389, subd. (b).)”

“To conclude that the state court finding cannot be made in Jorge’s absence is therefore effectively to say that Jorge, by failing to assert any right to custody or visitation of Bianka in this proceeding, can essentially bar Bianka from seeking relief premised on the very fact of his abandonment. While the potential prejudice to Jorge is, at this point, necessarily speculative, the prejudice to Bianka’s legal position is immediate and unavoidable. “

The full text of Bianka M. v. The Superior Court of Los Angeles County can be found here:

http://www.courts.ca.gov/opinions/documents/S233757.PDF

BIA Revisits Definition of an Obstruction of Justice Aggravated Felony

The Board of Immigration Appeals had determined that an “offense relating to obstruction of justice” under section 101(a)(43)(S) of the Immigration and Nationality Act,, encompasses offenses covered by chapter 73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521 (2012), or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding. Therefore, a conviction for accessory to a felony under section 32 of the California Penal Code that results in a term of imprisonment of at least 1 year is a conviction for an aggravated felony offense relating to obstruction of justice.

The Board specifically noted that an ongoing investigation is not necessary. For example, acts of witness intimidation before an investigation has begun designed to prevent the reporting of a crime, would still qualify under the generic definition of obstruction of justice.

The full text of Matter of Valenzuela Gallardo can be found here:

https://www.justice.gov/eoir/page/file/1092896/download

Attorney General Limits Immigration Judge's Authority to Continue Proceedings

The Attorney General has imposed narrow standards on when an Immigration Judge may continue proceedings. An immigration judge may grant a motion for a continuance of removal proceedings only "for good cause shown." When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings. The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.

The Attorney General did emphasize that immigration judges need not treat as controlling DHS’s consent to, opposition to, or failure to take a position on a motion for continuance.

To assess the speculativeness of a respondent’s collateral matter, an immigration judge will generally need an evidentiary submission by the respondent, which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like. Absent such evidence, the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings.

The immigration judge should also state his reasons for granting a continuance on the record or in a written decision. A record of the immigration judge’s evaluation and balancing of the relevant good-cause factors does not bind the Board, of course, but it does aid the Board’s review of a continuance order. The absence of any reasoned explanation for the grant of a continuance may, were the Board to entertain an interlocutory appeal, leave Cite the Board no choice but to vacate the order granting the continuance if evidence supporting good cause is not clear from the record.

The Attorney General also directed the Board of Immigration Appeals to entertain interlocutory appeals of decisions regarding continuances.

The full text of Matter of L-A-B-R-can be found here:

https://www.justice.gov/eoir/page/file/1087781/download

BIA Clarifies Finality of Conviction

The Board of Immigration Appeals has determined that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived. Once the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings. Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

The full text of Matter of J.M. Acosta can be found here:

https://www.justice.gov/eoir/page/file/1090686/download

BIA Clarifies Jurisdiction

The Board of Immigration Appeals has determined that a notice to appear that does not specify the time and place of an initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Immigration and Nationality Act, so long as a notice of hearing specifying this information is later sent to the respondent. The Board noted that “terminating proceedings where service was proper under 8 C.F.R. § 1003.18(b) (2018) would require us to disregard a regulation that we are compelled to follow.”

The full text of Matter of Bermudez Cota can be found here:

https://www.justice.gov/eoir/page/file/1091146/download

Attorney General Limits Immigration Judges' Authority to Terminate Proceedings

The Attorney General has determined that an Immigration Judge has no authority to terminate proceedings except as expressly authorized by the regulations or when the Department of Homeland Security has failed to meet its burden to prove removability.

“As relevant here, on motion by DHS, an immigration judge may dismiss the proceedings where ‘the Notice to Appear was improvidently issued’ or the ‘circumstances of the case have changed after the Notice to Appear was issued to such an extent that continuation is no longer in the best interest of the government.’” 8 C.F.R. §§ 239.2(a)(6)−(7), 1239.2(c). The regulations also allow immigration judges to terminate removal proceedings ‘to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors,’ but provide that, ‘in every other case, the removal hearing shall be completed as promptly as possible.’” 8 C.F.R. § 1239.2(f). “Apart from these circumstances, the relevant statutes and regulations do not give immigration judges the discretionary authority to dismiss or terminate removal proceedings after those proceedings have begun.”

In a footnote, the Attorney General noted that “[t]his decision does not foreclose respondents, in appropriate circumstances, from requesting that DHS file an unopposed motion to dismiss proceedings under 8 C.F.R. § 1239.2(c).”

The full text of Matter of S-O-G- and Matter of F-D-B- can be found here:

https://www.justice.gov/eoir/page/file/1095371/download

CA Appeals Court Construes Due Diligence Requirement for 1473.7

The First Appellate District of the Court of Appeal of California has determined that the due diligence provisions of section 1473.7 of the California Penal Code does not require the movant to be subject to removal proceedings or a final order of removal.

The full text of People v. Morales can be found here:

http://sos.metnews.com/sos.cgi?0718//A152530

BIA Addresses Analysis for Conviction Related to Violation of a Protection Order

The Board of Immigration Appeals has confirmed the proper analysis under section 237(a)(2)(E)(ii) of the INA (violation of a protection order), as it relates to an application for cancellation of removal for non-lawful permanent residents.

"Two distinct inquiries must be made in applying section 240A(b)(1)(C) to determine whether a violation of a protection order is for an offense under section 237(a)(2)(E)(ii). First, an Immigration Judge must determine whether the offense at issue resulted in a “conviction” within the statutory definition set forth at section 101(a)(48)(A) of the Act.  The Immigration Judge must then decide whether the State court has found that the alien “engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection ordered was issued,” as directed by section 237(a)(2)(E)(ii). In conducting this second inquiry, Immigration Judges should follow the analysis provided in Matter of Obshatko—that is, they should review the probative and reliable evidence regarding whether the State court’s findings that a protection order has been violated meet the requirements of section 237(a)(2)(E)(ii). An Immigration Judge might reasonably conduct these two inquiries—neither of which involves the elements-based categorical approach—in either order."

"Although a conviction is necessary in the context of cancellation of removal, it would be incongruous to apply the elements-based categorical approach to section 237(a)(2)(E)(ii), which focuses on a court’s determination regarding an alien’s conduct."

The full text of Matter of Medina Jimenez:  https://www.justice.gov/eoir/page/file/1085701/download

BIA Doubles Down; Finds Sponsoring or Exhibiting an Animal in Animal Fighting Venture to be CIMT

On remand from the Ninth Circuit, the Board of Immigration Appeals has again held that a conviction for sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.  The Board rejected the Ninth Circuit's contention that non-fraudulent crimes should involve an intent to injure, actual infliction of injury, or a protected class of victims to qualify as crimes involving moral turpitude.  The Board then stated that it considered the crime of sponsoring or exhibiting an animal in an animal fighting venture to be of a similar nature to crimes of prostitution and incest.  Because this conduct "celebrates animal suffering for one’s personal enjoyment, it transgresses the socially accepted rules of morality and breaches the duty owed to society in general."

The full text of Matter of Ortega Lopez can be found here:

https://www.justice.gov/eoir/page/file/1085471/download

Ninth Circuit finds Oregon Witness Tampering not Categorically CIMT

The Ninth Circuit has determined that Oregon's witness tampering statute is not a categorical match to the definition of a crime involving moral turpitude.  The plain text of the statute permits conviction if (1) a person induces or attempts to induce a person who is or may be called as a witness in official proceeding to offer false testimony; (2) a person induces or attempts to induce a person who is or may be called as a witness to unlawfully withhold any testimony; or (3) a person knowingly induces or attempts to induce a person to be absent from an official proceeding when the person was legally summoned. 

The statute does not suggest fraud, which the Court has defined as requiring that an individual employ false statements to obtain something tangible.  Neither impeding law enforcement nor wrongfully interfering with the administration of justice constitutes a tangible “benefit” for purposes of determining whether a crime involves fraudulent intent.  In addition, the statute does not involve an intent to injure another, an actual injury to another, or a protected class of victim.  Thus, the statute is overbroad.

"We conclude that the statute is divisible. Although both subsections (a) and (b) define the offense of witness tampering in Oregon, the subsections criminalize different conduct and require different elements for conviction."  It is thus clear from the face of the indictment and the plea agreement that Vasquez-Valle’s conviction tracked subsection (b) (inducing a person to be absent from an official proceeding).  The Court deemed this subsection not to be a crime involving moral turpitude.

The full text of Vasquez-Valle v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/13-74213.pdf

Ninth Circuit Finds that DHS Erred by Placing Petitioner in Asylum Only Proceedings

The Department of Homeland Security (DHS) issued a removal order against Petitioner for overstaying his permitted time in the United States under the visa waiver program.  Petitioner then briefly departed the United States, and was paroled back.  Subsequently, he was placed in asylum-only proceedings, and his asylum application was denied.  The Court determined that Petitioner's brief departure from the United States executed the visa waiver overstay removal order, and as such, the DHS erred by placing him in asylum-only proceedings.  As such, there was no final order of removal before the Court to review, as the original order had been executed, and the denial of asylum did not qualify as a final order of removal because the denial of an asylum application in asylum-only proceedings merely “finalizes” DHS’s removal order of a visa waiver program entrant.  

The full text of Nicusor-Remus v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/15-70588.pdf

Ninth Circuit finds that Nevada Conviction for Child Abuse and Neglect not a Crime of Child Abuse

The Nevada statute at issue defines as a misdemeanor (1) an act or omission (2) by a person “responsible for the safety or welfare of a child” (3) who has no prior child abuse convictions, (4) which act or omission “permits or allows” (5) the child “to be placed in a situation where the child may suffer physical pain or mental suffering” (6) as a result of the responsible person’s “abuse or neglect,” (7) even if “substantial bodily or mental harm does not result to the child.”

Like the generic definition of a crime of child abuse, the statute requires a mens rea of at least negligence.  However, the statute does not specify what probability of harm to the child the “situation” in which the child is placed must carry; it merely refers to situations “where the child may suffer physical pain or mental suffering” as a result of “abuse or neglect.”  The Court then assumed that a “reasonable foreseeability” standard would apply to the issue of the probability of harm. 

The generic definition of a crime of child abuse includes conduct that creates at least a “reasonable probability” or a likelihood of harm to a child. But the Nevada statute is even broader: It includes conduct that creates only a “reasonable foreseeability” of harm to a child. 

The Court remanded the case to allow the agency to determine if the application of the modified categorical approach was appropriate. 

The full text of Alvarez-Cerriteno v.  Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/16-73486.pdf

Ninth Circuit Invalidates Illegal Reentry Conviction

Ochoa-Oregel (Defendant) unlawfully entered the United States in 2016 and was convicted of unlawful reentry in violation of 8 U.S.C. § 1326. Before his 2016 conviction for unlawful re-entry, Defendant had previously been ordered removed in 2008, based on a prior conviction for California domestic violence battery, Cal. Penal Code § 243(e)(1), in an in absentia proceeding. The government contends that Defendant lost his status as a legal permanent resident as a result of the 2008 removal. Defendant was again removed in 2011 in an expedited removal proceeding.

At the time of Defendant’s 2008 hearing before the immigration judge, the Ninth Circuit's precedent had established that California battery was not a categorical crime of violence. It was error to remove Defendant for a crime of domestic violence based on his California battery conviction. The 2008 in absentia removal cannot properly serve as a predicate for a conviction for illegal re-entry.

The 2011 removal order also cannot serve as a predicate for unlawful re-entry.  Defendant was stripped of the important legal entitlements that come with lawful permanent resident status through the legally erroneous decision that he had no opportunity to contest in 2008.  Among those protections is that lawful permanent residents cannot be removed on an expedited basis.  This means that the 2011 expedited removal order was also fundamentally unfair because it violated the process due to lawful permanent residents.

The Court emphasized that We emphasize that its "holding here is limited to the case where an alien is erroneously removed in absentia and did not have a meaningful opportunity to contest the order that ostensibly stripped him or her of lawful permanent resident status. We express no view about the effect of an order of removal that while legally erroneous was entered after an alien had a meaningful opportunity to contest removal."

The full text of Ochoa-Oregel v. United States can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf

Ninth Circuit finds that Prohibition on Religious Practice is Persecution

The Ninth Circuit has determined that a petitioner who was prohibited from attending his house church suffered past persecution.  "By forbidding Petitioner from attending his home church, the Chinese police prevented him from practicing his faith and did so through coercive means. The harm Petitioner suffered was therefore ongoing and, under our asylum precedent, compelled a finding of past persecution."  Specifically, the Court noted that "the police here actively ensured that Petitioner could not practice his faith, forcing him and fellow congregants to report to the police station weekly and threatening him with arrest for noncompliance."

The full text of Guo v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/15-70617.pdf

Ninth Circuit Discusses Consular Nonreviewability Doctrine

The Ninth Circuit has held that the consular nonreviewability doctrine does not impact a federal court's subject matter jurisdiction to hear a challenge to a visa denial.  The court concluded, however, that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits.  The consular officer need only provide a facially legitimate and bona fide reasons for rejecting a visa application.

The full text of Allen v. Milas can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/16-15728.pdf

Ninth Circuit Applies Exclusionary Rule to OCAHO Proceedings

Frimmel was the owner of several restaurants in Arizona, which were the targets of raids by the Maricopa County Sheriff's Office (MCSO) that were conducted in violation of the Fourth Amendment.  MCSO then shared information with ICE, who began an investigation into Frimmel's employment of immigrants who did not have employment authorization.  Frimmel moved to suppress the documents obtained by ICE before the Office of the Chief Administrative Hearing Officer (OCAHO), but his request was denied.  The Arizona state court, in the meantime, suppressed the evidence obtained by the MCSO in the state criminal proceedings brought against Frimmel, finding multiple defects in the warrant used to conduct the search.

The Court determined that the MCSO's conduct was an egregious violation of the Fourth Amendment.  Moreover, the Court found that ICE's evidence was fruit of the illegal search by MCSO, and that there was not sufficient attenuation between ICE obtaining the evidence and the illegal search.  Finally, the Court determined that MSCO had immigration enforcement in mind when it conducted its unlawful raids, and thus, application of the exclusionary rule would have proper deterrent effect.  As such, the Court reversed the administrative law judge's determination that the evidence obtained by ICE should not be suppressed in the OCAHO proceeding.

The full text of Frimmel v. United States can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-73906.pdf