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

Ninth Circuit Returns to the Saga of 245(i) Adjustment and 212(a)(9)(C)

n 2002, the Correo-Ruiz brothers applied for adjustment of status under section 245(i) of the INA. In 2006, the Ninth Circuit issued its decision in Acosta v. Gonzales, finding that a person who was inadmissible under section 212(a)9)(C)(i)(I) of the iNA for having re-entered the United States without admission after accruing at least one year of unlawful presence could still seek adjustment of status under section 245(i) of the INA.  I In 2007, the Board of Immigration Appeals issued its decision in Matter of Briones, coming to the opposite conclusion as the Ninth Circuit in Acosta.  This came as unwelcome news to the Correo-Ruiz brothers, who had already expended money for legal representation in their immigration process after the decision in Acosta.  In 2012, the Ninth Circuit issued its decision in Garfias-Rodriguez v. Holder, deferring to the Board's decision in Briones, but suggesting that a person who could show detrimental reliance on Acosta might be able to successfully argue against the retroactive effect of Briones and Garfias-Rodriguez.  

Though the court recognized that the Correo-Ruiz brothers could not have filed their adjustment applications in reliance on Acosta (which was decided approximately 4 years after they filed their applications), they may relied on the Acosta decision when deciding to continue to pursue their applications with legal assistance after the Acosta decision and before the Briones decision.  The money spent on this legal assistance could create the necessary detriment to prevent retroactive application of the decision in Briones.

The full text of Correo-Ruiz v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/30/12-72126.pdf

Second Circuit Construes Notice Requirements for Revocation of an Employment-Based Immigrant Petition

Certain beneficiaries of employment-based immigrant visas, who have filed for their residency but whose applications remain pending, can take advantage of a procedure known as "porting," which permits them to change employers without affecting their pending applications for residency.  The new employer effectively substitutes in as the sponsoring petitioner for the former employer who actually filed the immigrant petition on the employee's behalf.  The question becomes, if U.S. Citizenship and Immigration Services (USCIS) believes there is grounds for revoking the approved immigrant petition, and the employee has ported to a new employer, who must USCIS notify? The original petitioning employer (with whom the beneficiary/employee no longer has any relationship), the beneficiary/employee, or the new employer/sponsor? 

In a published decision, the Second Circuit ruled that notifying the former employer is not sufficient.  The court remanded for the District Court to determine f the requisite notice should go the beneficiary/employee, the new sponsor/employer, or both.

The full text of Mantena v. Johnson can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/d2fe6f7c-3e22-435a-b753-bf6dca1fa9bd/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d2fe6f7c-3e22-435a-b753-bf6dca1fa9bd/1/hilite/

Happy New Year! We've moved!

Our office has moved! Don't worry - we didn't go far - just a few miles into downtown Los Angeles! The new office is located at 811 Wilshire Blvd, Suite 1737, Los Angeles, CA 90017.  Come visit soon!

Happy New Year!

Ninth Circuit Addresses a California Joyriding Conviction

In an en banc decision, the Ninth Circuit has determined that a conviction for joyriding in California is not a crime involving moral turpitude, finding the statute to be overbroad and indivisible.  The court also provided a detailed explanation of how to employ the categorical and modified categorical approaches.  Notably, the court suggested that the charging document may assist a court in determining whether disjunctively worded phrases in a statute are alternative elements or alternative means.  

"Prosecutors may not charge a defendant in the disjunctive, as the indictment did here, if they are charging two separate offenses. As noted in Descamps, '[a] prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives.'  Thus, when reviewing the Shepard documents, a court can discover what the prosecutor included as elements of the crime and to what elements the petitioner pleaded guilty. Therefore, because the indictment charged Almanza with having intent either to permanently deprive or temporarily deprive the owner, the indictment reveals that (under state law) the two forms of intent are alternative means of accomplishing the same crime instead of two separate crimes. Section 10851 is therefore an indivisible statute."

The en banc court did not address perhaps the biggest issue in the underlying 3 judge panel decision - whether an inconclusive record of conviction (i.e. a divisible statute, where the record of conviction does not clearly establish which alternative elements underpinned a defendant's conviction) can meet a non-citizen's burden of proving eligibility for relief from removal.

The full text of Almanza-Arenas v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/28/09-71415.pdf

First Circuit Narrows Mandatory Detention Provisions

In an en banc decision, the First Circuit has affirmed District Court decisions finding that the mandatory detention provisions for immigrants with criminal histories only apply if the Department of Homeland Security takes the immigrant into custody at the time he is released from criminal custody.  If the person is released from criminal custody and later is taken into immigration custody, he will be eligible to seek a bond from an Immigration Judge.

The full text of Castenada v. Souza can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf

Ninth Circuit Invalidates Administrative Removal Order Based on ICE Officer's Conduct

The Ninth Circuit, in a criminal reentry case, has invalidated an administrative order of removal.  The petitioner had been convicted of an aggravated felony and placed in administrative removal proceedings.  However, prior to the initiation of removal proceedings, she had been the victim of a crime that made her facially eligible to apply for a U visa.  The ICE officer who interviewed her and processed her for administrative removal proceedings advised her that an attorney could not help because she had been convicted of an aggravated felony.  As a result of this misrepresentation (an attorney could have helped the petitioner apply for a U visa), the petitioner waived her right to counsel.  The Ninth Circuit found that the ICE officer's misrepresentation had violated her due process rights.

The Ninth Circuit also found that the petitioner had been prejudiced by the misrepresentation.  Even though a person in administrative removal proceedings is not typically eligible for any discretionary relief, an ICE officer has the authority to place the person in "regular" removal proceedings.  Given the petitioner's eligibility for a U visa, an ICE officer very likely could have transferred her proceedings if a U visa application was filed, and as such, the petitioner was prejudiced by the ICE officer's conduct which induced a waiver of her right to counsel.

The full text of United States v. Cisneros-Rodriguez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/23/13-10645.pdf

Seventh Circuit Finds 18 USC 16(b) Unconstitutionally Vague

The Seventh Circuit has joined the Ninth Circuit and determined that 18 USC 16(b), which provides half of the definition of a crime of violence aggravated felony for immigration purposes, is unconstitutionally vague.  Like the Ninth Circuit's decision in Dimaya v. Lynch, the Seventh Circuit relied on the Supreme Court's decision in Johnson v. United States, holding the nearly identically worded residual clause of the Armed Career Criminal Act to be unconstitutionally vague.

The full text of United States v. Vivas-Ceja can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-22/C:15-1770:J:Sykes:aut:T:fnOp:N:1676497:S:0

My previously blog post on Dimaya v. Llynch can be found here: http://www.sabrinadamast.com/journal/2015/10/20/ninth-circuit-finds-18-usc-16b-unconstitutionally-vague

Seventh Circuit Grants Petition for Review for Convention Against Torture Protection

In a scathing opinion, the Seventh Circuit shot down the Board of Immigrations Appeals' decision denying Protection under the Convention Against Torture to an applicant who owed money to the Zetas cartel for drug transactions, who had previously been tortured by the Mexican police, and whose family had been tortured by the Zetas.  The Court emphasized that the Convention only requires substantial grounds to believe an applicant would be tortured, which cannot be literally construed as a great than 50% probability of torture.  Finally, the Court reminded the Board of Immigration Appeals that the entire government need not acquiesce in the torture (only a government official), nor do they have to do so in any "official capacity."

The full text of Rodriguez-Molinero v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-17/C:15-1860:J:Posner:aut:T:fnOp:N:1673810:S:0

Ninth Circuit Discusses Jurisdiction over a Citizenship Claim

An Immigration Judge found that Sunny Viloria derived citizenship through his parents and accordingly, terminated removal proceedings against him.  The Department of Homeland Security appealed, and the Board of Immigration Appeals (BIA) sustained the appeal and remanded the case to the Immigration Judge.  Viloria appealed to the Ninth Circuit, who determined that it had no jurisdiction to review the BIA's decision because Viloria was not the subject of a final order of removal.

The full text of Viloria v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/21/11-73725.pdf

Ninth Circuit Finds that North Koreans who Relocate to South Korea are not Eligible for Asylum in the United States

The Ninth Circuit determined that a North Korean who moved to South Korea, attended school, and accepted South Korean citizenship, was firmly resettled, and thus, ineligible for asylum.  Section 302 of the North Korean Human Rights Act of 2004, which prohibits a finding that a North Korean is automatically a dual citizen of South Korea, does not prevent an Immigration Judge from making a firm resettlement finding.

The full text of Jang v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/22/11-73587.pdf

Tenth Circuit Addresses Immigration Consequences of an Oklahoma Conviction for Receipt of Stolen Property

The Tenth Circuit determined that a conviction for receipt of stolen property in Oklahoma qualifies as a crime involving moral turpitude even though it does no require a permanent taking.  The fact that the defendant must know the property is stolen is sufficient to implicate morally turpitudinous conduct.  The court acknowledged that its decision was at odds with Ninth Circuit precedent.

The full text of Obregon v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/13/13-9601.pdf

Fourth Circuit Addresses North Carolina Convictions for Speeding to Elude Authorities

The Fourth Circuit concluded that North Carolina conviction for speeding to elude authorities does not qualify as violent felony under the Armed Career Criminal Act (ACCA) because it neither requires the use of force nor is it one of the enumerated crimes defined as violent felonies. 

The full text of United States v. Barlow can be found here: http://www.ca4.uscourts.gov/Opinions/Published/154114.P.pdf

Tenth Circuit Finds that a California Conviction for Robbery Qualifies as a Crime of Violence

The Tenth Circuit determined that some conduct under section 211 of the California Penal Code (robbery) matched the generic definition of extortion, while other conduct matched the generic definition of robbery.  Though the conduct criminalized under the robbery statute matched one generic definition of a crime of violence, as defined in the sentencing guidelines, the court still concluded that a conviction for robbery in California would qualify as a crime of violence under the sentencing guidelines.

The Tenth Circuit's decision potentially creates a split with the Ninth Circuit, which determined in United States v. Dixon that a robbery conviction would not qualify as a violent felony under the Armed Career Criminal Act (ACCA). The Ninth Circuit also acknowledged that some conduct under section 211 of the California Penal Code, and some would fall under the "use of force" definition included the in ACCA.  Notably, the ACCA definition of a violent felony does not include a generic robbery definition, nor did the Ninth Circuit discuss whether all conduct criminalized under section 211 of the California Penal Code would fall under either the generic extortion or the use of force definition of a violent felony.  Thus, the Tenth Circuit and Ninth Circuit case law may, in the end, be reconcilable.  However, this is an area to keep an eye on further developments.

The full text of the Tenth Circuit's decision in United States v. Castillo can be found here: https://www.ca10.uscourts.gov/opinions/14/14-4129.pdf

My blog post on the Ninth Circuit's decision in United States v. Dixon can be found here: http://www.sabrinadamast.com/journal/2015/11/22/ninth-circuit-holds-that-california-robbery-is-not-a-violent-felony-under-the-acca

Ninth Circuit Defines Standards for Citizenship Trial in District Court

In an en banc decision, the Ninth Circuit confirmed that once a District Court finds that a litigant has adduced substantial credible evidence that he is a U.S. citizen, the burden shifts to the Government do demonstrate by clear and convincing evidence that the litigant is not a citizen.  On appeal, an appellate court will review the District Court's factual findings regard a litigant's citizenship for clear error.  In light of the contradictory evidence and credibility issues identified by the District Court, the Ninth Circuit deferred to its finding that Salvador Mondaca-Vega is not a citizen of the United States.

The full text of Mondaca-Vega v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/15/03-71369.pdf