Second Circuit Rejects Reliance on a Prosecutor's Statements Under the Modified Categorical Approach

The Second Circuit determined that a conviction for second-degree assault in Connecticut is not categorically a crime of violence in the sentencing context because one subsection of the statute involves reckless conduct.  The court found that the statute was divisible, but rejected the District Court's reliance on a prosecutor's statements about the conduct underlying the offense because the defendant was never asked to confirm that rendition of the facts and pled guilty before the prosecutor made his factual assertions.  The court was not deterred by the government's argument that the defendant could not have pled guilty to an attempt to commit a reckless assault, as attempt to commit a reckless act is a legally impossible act.  

The full text of United States v. Moreno can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/a34d3390-8dd7-42d5-957a-96d8274126ca/3/doc/14-4700_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a34d3390-8dd7-42d5-957a-96d8274126ca/3/hilite/

Seventh Circuit Grants Appeal Based on Fear of Female Genital Mutilation in Botswana

The Seventh Circuit sustained an appeal of an applicant seeking withholding of removal based on her fear that she would be forced by her family to undergo female genital mutilation (FGM) if she returned to Botswana.  The court noted that the family's two attempts to force the applicant to undergo FGM qualified as past persecution.  Moreover, the fact that FGM is not widely practiced in Botswana did not undermine the applicant's fear of future harm, in light of her family's insistence that she undergo the procedure.  Finally, the court challenged the Board of Immigration Appeals' (Board) determination that the applicant could safely relocate to another part of Botswana, noting that the Department of Homeland Security had not raised this issue on appeal to the Board, the Immigration Judge had not addressed the issue in his decision, and the Board has limited fact-finding capability. 

The full text of Musa v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-19/C:15-2046:J:Hamilton:aut:T:fnOp:N:1706751:S:0

Fourth Circuit Addresses a New Jersey Conviction for Child Endangerment

In the context of a criminal appeal, the Fourth Circuit addressed the elements of a New Jersey conviction for child endangerment under N.J. Stat. Ann. § 2C:24-4(a).  The court noted that the statute does not require any physical contact with the victim, and thus, does not match the federal generic definition of a crime of sexual abuse.  This decision could be helpful when analyzing whether a conviction under this statute qualifies as a sexual abuse of a minor aggravated felony for immigration purposes.

The full text of United States v. Berry can be found here: http://www.ca4.uscourts.gov/Opinions/Published/144934.P.pdf

Fourth Circuit Address the Citizenship of Adopted Children

In a published decision, the Fourth Circuit has rejected the Board of Immigration Appeals' limitations on the use of nunc pro tunc adoption orders to establish the citizenship of adopted children.  The court held that an adoption order is effective for immigration purposes on the date that the state court order states that it is effective, regardless of the date it was filed or whether or not the state adoption statute specifically authorizes nunc pro tunc adoption orders.  The court recognized that adoption matters are within the expertise of state courts, and that there is no indication that Congress meant to give the Board of Immigration Appeals the ability to override or deem invalid a state court adoption order.

The full text of Ojo v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/151138.P.pdf

Eighth Circuit Addresses Arkansas Conviction for Aggravated Assault

In the context of a criminal sentencing proceeding, the Eighth Circuit determined that the statute governing aggravated assault in Arkansas is overbroad compared to the definition of a violent felony.  The Court also determined that the statute is divisible, and determined that subsection (a)(1) - which requires a person to manifest extreme indifference to the value of human life and to purposely engage in conduct that creates a substantial danger of death or serious physical injury to another person - did not match the definition of a violent felony because it only requires the government to prove that a defendant's conduct created a substantial danger of death or serious physical injury, not to actually use violent force against another person.  Given the similarity between the definition of a violent felony in the sentencing context and the definition of a crime of violence in the immigration context, this decision likely has implications in the immigration context as well.

The full text of US v. Jordan can be found here: http://media.ca8.uscourts.gov/opndir/16/02/143444P.pdf

Fifth Circuit Finds 18 USC 16(b) to be Unconstitutionally Vague

Joining the Ninth and Seventh Circuits, the Fifth Circuit has ruled that 18 USC 16(b), which contains one half of the definition of a crime of violence for immigration purposes, is unconstitutionally vague.

The full text of US v. Gonzalez-Longoria can be read here: http://www.ca5.uscourts.gov/opinions/pub/15/15-40041-CR0.pdf

My blog post on the related Seventh Circuit decision (US v. Vivas-Ceja) here: http://www.sabrinadamast.com/journal/2015/12/23/seventh-circuit-finds-18-usc-16b-unconstitutionally-vague

My blog post on the related Ninth Circuit decision (Dimaya v. Lynch) can be found here: http://www.sabrinadamast.com/journal/2015/10/20/ninth-circuit-finds-18-usc-16b-unconstitutionally-vague

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: