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

Immigration Cases may be Postponed for another 5 years

The Wall Street Journal is reporting that non-priority cases in the Immigration Court may be delayed for at least another 5 years.  

Officials have begun sending out notices that thousands of immigrants awaiting hearings will have their cases pushed back nearly five years, a fresh sign of the pervasive backlogs and delays in the U.S. immigration court system. The delay makes room for higher-priority cases caused last summer by a surge in unaccompanied minors and families crossing the border with Mexico.

The Justice Department started notifying employees in the immigration court system last week that nonpriority cases were being bumped off the court docket and would get a Nov. 29, 2019, court date, which happens to be Black Friday. The far-off date, especially one when courts typically operate on a bare-bones staff, suggests officials view it as a bureaucratic placeholder.

The full article can be found here: http://www.wsj.com/articles/justice-department-delays-some-immigration-hearings-by-5-years-1422461407

USCIS Announces Effective Date of Expanded DACA

USCIS will begin accepting applications under the new and expanded Deferred Action for Childhood Arrivals Program on February 18, 2015.

From the USCIS website:

Deferred Action for Childhood Arrivals (DACA) program

Who

• Individuals with no lawful immigration status who are seeking initial or renewal DACA.

What

• Extends the deferred action period and employment authorization to three years from two years, and allows you to be considered for DACA if you:
  • Entered the United States before the age of 16;
  • Have lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007;
  • Are of any age (removes the requirement to have been born after June 15, 1981); and
  • Meet all the other DACA guidelines.

When

• February 18, 2015 (USCIS will not accept requests for expanded DACA before that date.)

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

Sabrina Becomes a University Professor....

On Tuesday, I embarked on a new career as a university professor.....for one night.  A colleague and friend of mine is a professor in the anthropology department at California State University, Los Angeles, and she invited me to be a guest lecturer for the second year in a row.  This year, I put together a fun exercise on the use of language in the immigration law (the class had a linguistics focus).  

I presented the class with a phrase or pair of phrases found in the immigration law (i.e. "extreme hardship" and "exceptional and extremely unusual hardship") and asked them what they thought the phrases meant.  When working with a pair of phrases, we brainstormed what the difference between the phrases might be (i.e. is extreme hardship more or less hardship than exceptional and extremely unusual hardship).  After the conversation, I revealed the meaning of the phrase in the immigration law.  

The students were so participatory and had so many fabulous ideas.  The discussion about "good moral character," in particular, sparked a lively debate - is adultery worse than theft? What about a DUI?  

It was great fun for me, and I hope to be able to do it again soon!

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

The BIA Addresses the Texas Offense of Deadly Conduct

Yesterday, the Board of Immigration Appeals (BIA) addressed whether the Texas offense of deadly conduct, which prohibits recklessly engaging in conduct that places another in
imminent danger of serious bodily injury, is a crime involving moral turpitude (CIMT).  The BIA determined that it is categorically a CIMT, even though it has a relatively low level of intent (recklessness) and it does not require any actual infliction of injury.  In doing so, the BIA referenced its prior decision in Matter of Leal, which determined that an Arizona conviction for “recklessly endangering another person with a substantial risk of imminent death,” was a CIMT.

To read the full decision in Matter of O.A. Hernandez, click here: http://www.justice.gov/eoir/vll/intdec/vol26/3823.pdf