Seventh Circuit Upholds Validity of Crime Involving Moral Turpitude Statute; Finds Illinois Burglary Conviction to be a Crime Involving Moral Turpitude

The Seventh Circuit has rejected a challenge to term "crime involving moral turpitude," finding that it is not unconstitutionally vague.  The Court noted that this phrase has been part of the immigration laws dating back to 1891 and that no case has been decided holding that the phrase is vague, or that it is so meaningless as to be a deprivation of due process.

The Court also determined that a felony burglary conviction in Illinois qualified as a crime involving moral turpitude, at least under the modified categorical approach.  The statute of conviction stated that "a person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.”

The full text of Dominguez-Pulido v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-05/C:14-3557:J:Flaum:aut:T:fnOp:N:1748791:S:0

Ninth Circuit Finds No Realistic Probability that CA would Prosecute Possession of Meth L

In the context of an illegal reentry case, the Ninth Circuit once examined the California drug schedules.  The petitioner argued that federal regulations exclude Meth-L found in pharmaceutical products from the federal statute, but that California's drug statutes did not include such an exception.  Thus, the petitioner argued that California's definition of methamphetamine is overbroad.  The Ninth Circuit disagreed, finding no realistic probability that California would criminalize acts involving an excluded product containing Meth L.

The full text of US v. Vega-Ortiz can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/06/14-50100.pdf

Argument Before the Ninth Circuit Court of Appeals

Today I argued a case before the Ninth Circuit Court of Appeals concerning the impact of a criminal conviction for domestic violence on a client's application for cancellation of removal: 

https://www.youtube.com/watch?v=_2NAIvacoEY

Eleventh Circuit Addresses Jurisdiction over Reinstated Orders of Removal and Eligibility for Asylum

The Eleventh Circuit has determined that a reinstated order of removal is not administratively final until the conclusion of any reasonable fear proceedings (and by extension, any withholding of removal and protection under the Convention Against Torture proceedings).  In addition, the Court joined the Fifth and Second Circuits in finding that a non-citizen in reinstatement proceedings is not eligible for asylum.

The full text of Jimenez-Morales v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201415359.pdf

Ninth Circuit Addresses Standard of Review of Negative Reasonable Fear Finding

The Ninth Circuit has determined that it will review the agency's finding that a non-citizen does not have a reasonable fear of future persecution or torture for substantial evidence.  

The full text of Andrade-Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/29/13-74115.pdf

Seventh Circuit Finds Petitioner's Due Process Rights Violated By Admission of Incriminating Statement from His Ex-Wife

The Department of Homeland Security (DHS) used an incriminating written statement from the petitioner's ex-wife to prove that he had committed marriage fraud.  The DHS did not produce the wife for testimony.  The DHS had sought a subpoena for a prior hearing date for the ex-wife, but there was no evidence that it was served on her, and the DHS did not request a subpoena for the final merits hearing.  The Court found that the DHS did not engage in sufficient efforts to produce the ex-wife.

The full text of Karroumeh v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D04-29/C:15-2198:J:Rovner:aut:T:fnOp:N:1745471:S:0

Fifth Circuit Rejects Particular Social Group Comprised of "Former Informants"

The Fifth Circuit determined that "former informants," or people who report criminal activity the police, are not a cognizable social group for asylum and withholding of removal purposes.  The Court found that the proposed group lacked social distinction and particularity.

The full text of Hernandez-De La Cruz v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60730-CV0.pdf

Fourth Circuit Deems Federal Statute Overbroad

In a published decision, the Fourth Circuit addressed  18 USC 659, a statute criminalizing actions related to stolen and embezzled property.  The petitioner was convicted of possession of stolen or embezzled property.  The Board of Immigration Appeals (Board) deemed his offense to be a theft aggravated felony.  Though the Board acknowledged that possession of embezzled property would not fit the typical definition of a theft offense because embezzlement requires obtaining the property with the owner's consent through fraudulent means while theft requires obtaining the property without the owner's consent, it noted that the aggravated felony provision actually encompasses "a theft offense (including receipt of stolen property.)"  Thus, the Board concluded that possession of embezzled property fell within the ambit of "receipt of stolen property," despite the absence of a requirement that the property be obtained without the owner's consent.  The Fourth Circuit disagreed, construing the receipt of stolen property parenthetical as a subset of the larger definition of a theft offense, and thus, determined that a receipt of stolen property offense still requires that the property be obtained without the owner's consent.  As such, receipt of embezzled property would fall outside the ambit of the aggravated felony provision.  The Court concluded that the second paragraph of section 659 is not a “theft offense (including receipt of stolen property).”

The full text of Mena v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/151009.P.pdf

Eighth Circuit Finds that an Iowa Recidivist Conviction for Domestic Violence is not Categorically a Crime Involving Moral Turpitude

Section 708.2A(4) of the Iowa Code criminalizes a third or subsequent domestic violence offense.  Assault is defined in section 708.1(2) of the Iowa Code.  The Court determined that the definition of assault included "offensive" touching, which was outside the scope of morally turpitudinous conduct.  Thus, the Board of Immigration Appeals erred by finding a conviction for recidivist domestic violence was categorically a crime involving moral turpitude.

The full text of Perez Alonzo v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/04/152024P.pdf

Eighth Circuit Finds that Signing Petition to Remove Conditions is a Furtherance of a Conspiracy to Commit Marriage Fraud

The Eighth Circuit has determined that the filing of a Petition to Remove Conditions on Residence, when the marriage underlying the residence was fraudulent, is a continuation of a conspiracy to commit marriage fraud.  As such, when that petition is submitted within 5 years of the applicant's admission as a permanent resident, the applicant can be charged with deportability based on the commission of a crime involving moral turpitude within 5 years of admission.

The full text of Ashraf v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/04/143179P.pdf

First Circuit Finds that an Inconclusive Record of Conviction Meets an Applicant's Burden to Prove Eligibility for Cancellation of Removal

In a published decision, the First Circuit has determined that an inconclusive record of conviction meets an applicant's burden to prove eligibility for cancellation of removal.  In so doing, the Court recognized that whether an offense poses a statutory bar is a legal question, not a factual one.  The Court relied heavily on the Supreme Court's decision in Moncrieffe v. Holder.

The full text of Peralta Sauceda v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2042P2-01A.pdf

Eleventh Circuit Declines to Recognize "Former Gang Members" as a Particular Social Group

In a published decision, the Eleventh Circuit declined to recognize former members of the Mara 18 as a particular social group.  In so doing, the court relied heavily on published Board of Immigration Appeals (BIA) and Ninth Circuit case law finding that - for policy reasons - it would be inappropriate to reward applicants with immigration status based on prior, anti-social and violent behavior.  The court also deferred to the BIA's determination that a group comprised of former gang members lacked sufficient particularity.

The full text of Gonzalez v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201512878.pdf

Fifth Circuit Finds No Lawful Admission for a Man With Plane Tickets

Samuel Gomez was approved for temporary residency.  Using the travel authorization that accompanied this status, he traveled to El Salvador and back to the United States.  Years later, the applied for adjustment of status to the United States.  To prove his lawful entry, he produced his temporary residence card, round trip plane tickets, a baggage receipt, entry and exits stamps from El Salvador in his passport, and affidavits from himself and his wife (who verified that she picked him up at the airport in Houston).  The agency determined that this was insufficient to demonstrate that he actually passed through the immigration inspection area in the airport and was admitted to the United States.  The agency relied in part on the fact that Mr. Gomez had twice listed his entry as one "without inspection" on other immigration documents.  The Fifth Circuit affirmed, finding that the evidence did not compel a contrary conclusion.

This is a worrisome case, casting serious doubts on the viability of Matter of Quilantan in the Fifth Circuit.

The full text of Gomez v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60661-CV0.pdf

Lobbying Congress for More Sensible and Humane Immigration Laws

On April 7, 2016, I traveled with 350 other immigration attorneys to Washington, DC to meet with our elected representatives and discuss how to repair our broken immigration system.  I participated in three meetings on Capitol Hill, where I urged Congressional staffers to understand the need for more sensible and humane immigration laws.

Here is a link to a video containing interviews with immigration lawyers who participated in National Day of Action.  I am the third person shown on the video: https://www.youtube.com/watch?v=a4478t1gSN8

Eighth Circuit Finds that Felony Domestic Assault in Minnesota Qualifies as a Violent Felony

The Eighth Circuit has concluded that a felony conviction for domestic assault in Minnesota qualifies as a violent felony.  The statute of conviction requires the defendant to commit an act with intent to cause fear in another of immediate bodily harm or death.  The court determined that a conviction necessarily entails the threatened use of violent force.  Given the similarity between the definition of a violent felony in the sentencing context and a crime of violence in the immigration context, this decision may indicate that a conviction for domestic assault in Minnesota would also qualify as a crime of violence.

The full text of US v. Schaffer can be found here: http://media.ca8.uscourts.gov/opndir/16/04/152571P.pdf

Ninth Circuit Determines that a Massachusetts Conviction for Armed Robbery does not Qualify as a Violent Felony

A conviction for armed robbery in Massachusetts requires the prosecution to prove two elements: (1) the defendant committed a robbery; and (2) the defendant was in possession of a weapon.  The robbery can be committed in one of two ways: (1) by force and violence (i.e., the actual force prong) or (2) by assault and putting in fear.  Under either prong, the degree of force is immaterial, so long as it is sufficient to obtain the property against the victim's will.  It is not necessary that the victim be placed in fear.  In addition, the defendant need not use the weapon during the commission of the robbery, nor need the victim be aware of the weapon.

Under these circumstances, the court determined that a conviction for armed robbery in Massachusetts does not meet the definition of a violent felony, which requires a statute include as an element the use, attempted use, or threatened use of physical force against the person of another.  Because the degree of force is immaterial, any force, however slight, will satisfy this prong so long as the victim is aware of it.  This does not meet the violent force requirement for a violent felony.  Moreover, since the statute does not require the use or threatened use of the weapon, the fact that a defendant must be armed does not transform the conviction into a violent felony.  Given the similarity in  the definition of a violent felony for sentencing purposes and a crime of violence for immigration purposes, this decision could be excellent persuasive authority for arguing that a Massachusetts conviction for armed robbery is not a crime of violence.

The full text of US v. Parnell can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/12/14-30208.pdf

Ninth Circuit Defers Resolution of a Question Regarding a Drug Trafficking Offense to Await the Supreme Court's Decision in a Similar Case

David Rosales-Aguilar was convicted of violating section 11352 of the California Health & Safety Code (CHSC) in 1998.  The Government wished to use this conviction, which it claims is a "drug trafficking offense," to increase Rosales-Aguilar's sentence for an illegal reentry conviction.  The Court acknowledged that a conviction under section 11352 of the CHSC is not categorically a drug trafficking offense.  It also recognized the growing circuit split addressing what constitutes a divisible statute, and relatedly, when a court should employ the modified categorical approach. The Supreme Court will take up this issue this term in US v. Mathis.  As such, the Ninth Circuit decided to defer addressing whether Rosales-Aguilar's conviction qualifies as a drug trafficking offense until the Supreme Court renders a decision in Mathis.

The full text of US v. Rosales-Aguilar can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/12/14-50315.pdf

Eighth Circuit Deems a Michigan Robbery Conviction be a Violent Felony

In the context of a federal sentencing case, the Eighth Circuit has determined a Michigan conviction for robbery is a violent felony.  The statute, which requires the defendant “assault or put[] in fear” the victim, is limited to conduct that accomplishes a forceful taking (or attempted taking) by using violence or the threat of violence to put the victim in fear of immediate personal injury.  Given the similarity between the definition of a violent felony and a crime of violence in the immigration context, this decision likely applies to a crime of violence aggravated felony analysis in the immigration context as well.

The full text of US v. Lamb can be found here: http://media.ca8.uscourts.gov/opndir/16/04/152399U.pdf

Ninth Circuit Entertains Particular Social Group of "Young Women in El Salvador Who have been Solicited by Gangs"

In an unpublished decision, the Ninth Circuit remanded a case in which the petitioner asserted that she was persecuted on account of her membership in the group comprised of "young women who have been solicited by gangs."  The petitioner was initially approached by four members of the Mara Salvatrucha gang who asked her to join.  She then faced a series of threatening or violent encounters with some of the same gang members, and was persecuted every week by the gangs.  The Ninth Circuit concluded that this evidence compelled the conclusion that she was persecuted on account of her membership in the proposed social group. As such, the Court remanded the case, to allow the agency to determined if the proposed social group met the revised social distinction and particularity requirements articulated by the Board of Immigration Appeals in Matter of W-G-R- and Matter of M-E-V-G-.  In so doing, the Court noted that it had previously determined that "persons taking concrete steps to oppose gang membership and gang authority” may be a cognizable social group, citing its decision in Pirir-Boc v. Holder.

The full text of Orellana-Lara v. Lynch can be found here: https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/03/28/12-73221.pdf

Board of Immigration Appeals Requires U.S. Citizenship and Immigration Services to Consider DNA Results when Adjudicating Sibling Petitions

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum in 2014 stating that it would not consider DNA analyses as evidence of a sibling relationship when adjudicating a petition filed by one sibling on behalf of another.  In a published decision, the Board of Immigration Appeals (BIA) ordered USCIS to consider DNA evidence when adjudicating sibling petitions.  Specifically, the BIA stated that "sibling-to-sibling DNA test results reflecting a degree of certainty of 99.5 percent or higher should be afforded some evidentiary value," but clarified that finding that "sibling-to-sibling DNA test results reflecting any particular percentage probability will alone be sufficient to establish a claimed full sibling relationship."  Rather, the results should be considered in conjunction with other evidence of the sibling relationship.

The full text of Matter of Ruzku can be found here: https://www.justice.gov/sites/default/files/pages/attachments/2016/03/29/3860.pdf