BIA Issues New CIMT Framework and Declines to Extend Heightened Discretionary Standard

The Board of Immigration Appeals (Board) has issued a new decision in Matter of Silva Trevino, dictating how Immigration Judges should analyze whether convictions qualify as crimes involving moral turpitude.  The Board acknowledged that this analysis is governed by the categorical and modified categorical approaches, including the Supreme Court's decisions in Descamps v. US and Mathis v. US for determining what constitutes a divisible statute.  The Board also noted that a crime involving moral turpitude is generally conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

With this framework in mind, the Board determined that Texas Penal Code section 21.11(a)(1) (indecency with a child) is not a crime involving moral turpitude because it does not require a defendant to know that the victim is under age 17.  Moreover, the parties agreed that the statute is not divisible, and therefore, no modified categorical analysis was necessary.

Finally, the Board declined to extend the heightened discretionary standard for individuals convicted of violent or dangerous crimes - currently applied via regulation to waivers of inadmissibility under section 212(h) of the INA - to other forms of discretionary relief.  The Board noted that its current case law already allows a judge to balance the severity of a crime against equities when determining whether to grant discretionary relief (i.e. adjustment of status) to an applicant.  Ninth Circuit practitioners can use this decision to roll back the decision in Torres-Valdivias v. Lynch (9th Cir. 2015), which applied the heightened discretionary standard to all forms of discretionary relief (including adjustment of status without a waiver).

The full text of Matter of Silva Trevino can be found here:

https://www.justice.gov/eoir/file/902461/download

Ninth Circuit Grants Petition for Rehearing En Banc in Case Involving Habitual Drunkard Bar to Good Moral Character

The Ninth Circuit has voted to rehear en banc the decision in Ledezma-Cosino v. Lynch, in which the three judge panel determined that the habitual drunkard bar to good moral character violated equal protection.

The decision announcing the en banc can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/12/12-73289.pdf

The original three judge decision can be found here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/24/12-73289.pdf

First Circuit Finds that BIA Abused its Discretion by Refusing to Reopen

The First Circuit admonished the Board of Immigration Appeals (Board) for failing to exercise its discretion.  The petitioner sought reopening after two attorneys (both later disciplined for their unethical representation of clients) provided him ineffective assistance of counsel, resulting in the entry of an in absentia order of removal when he was approximately 30 minutes late to a hearing.  Though the Immigration Judge and the Board both agreed that the petitioner had received in effective assistance of counsel sufficient to toll the filing deadline for the motion to reopen, they declined to reopen because the petitioner had received notice of the proper time of his hearing.  The court doubted whether being 30 minutes late was really grounds for an in absentia, but noted that attorney's failure to inform the judge of the client's appearance (after the judge indicated a willingness to reopen the case if the petitioner appeared later that morning) was an exceptional circumstance.

The full text of Murillo-Robles v. Lynch can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2568P-01A.pdf

Return to Tijuana

On Friday, I drove to Tijuana with several colleagues to volunteer at a migrant shelter.  We did consultations with families and individuals.  Some have been deported in the past, some are fleeing persecution and seeking entry to the United States for the first time.  For many who were planning to turn themselves in at the border to request asylum, I had to explain the likelihood that they could be detained for months or years in an immigration detention center.  Their courage was inspiring - so committed were they to making their plea to the U.S. government for safety and asylum, that they were prepared to endure the hardship of detention.  It was my honor to have been a part of this wonderful group of volunteers.

BIA Issues Precedential Decision Applying Supreme Court's Definition of Divisibility

The Board of Immigration Appeals (BIA) has set forth its third decision in Matter of Chairez, confirming that the definition of a divisible statute, as set forth in the Supreme Court's decision in Mathis v. United States, applies to immigration proceedings.  Accordingly, the BIA determined that section 76-10-508.1 of the Utah Code is overbroad with respect to the definition of a crime of violence because it criminalizes reckless conduct under subsection (1)(a).  Moreover, the statute is not divisible because Utah state case law suggests that the mental state is not something upon which a jury must unanimously agree to convict.  

The full text of Matter of Chairez can be found here:

https://www.justice.gov/eoir/file/898626/download

Tenth Circuit Re-examines the Immigration Consequences of a Utah Drug Conviction

The Tenth Circuit has remanded an immigration case in light of the Supreme Court's decision in Mathis v. United States to re-examine whether Utah's drug statutes are divisible, and accordingly, whether a conviction for possession of a controlled substance in Utah qualifies as a controlled substance violation.

The full text of Horng v. Lynch can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-9579.pdf

Eighth Circuit Finds Arkansas First Degree Battery Conviction to be a Crime of Violence

In the context of a criminal sentencing case, the Eighth Circuit has determined that a conviction for first-degree batter in Arkansas (Ark. Code. Ann. section 5-13-201) is a crime of violence.  The court noted that the statute is divisible, but that subsection (a)(1), which requires the infliction of serious physical injury through the use of a deadly weapon, requires the requisite violent force to be a crime of violence.

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

http://media.ca8.uscourts.gov/opndir/16/09/161283P.pdf

USCIS Extends TPS for Sierra Leone, Guinea, and Liberia for Final Six Months

Secretary of Homeland Security Jeh Johnson is extending TPS benefits for beneficiaries of TPS under the designations of Guinea, Liberia, and Sierra Leone for 6 months for the purpose of orderly transition before the designations terminate, effective May 21, 2017. After reviewing country conditions and consulting with the appropriate U.S. government agencies, Secretary of Homeland Security Jeh Johnson has determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for Temporary Protected Status (TPS). 

To provide for an orderly transition, current TPS beneficiaries will automatically retain their TPS and have the validity of their current Employment Authorization Documents extended through May 20, 2017. Beneficiaries do not need to pay a fee or file any application, including for work authorization, in order to retain their TPS benefits through May 20, 2017.

The full text of the announcement can be found here:

https://www.uscis.gov/news/news-releases/temporary-protected-status-benefits-under-designations-guinea-liberia-and-sierra-leone-extended-six-months-orderly-transition-termination-may-2017

BIA Finds that Federal Conviction for Copyright Infringement is a Crime Involving Moral Turpitude

The Board of Immigration Appeals (BIA) has determined that a federal conviction for criminal copyright infringement is a crime involving moral turpitude.  The BIA found the conviction - which requires that the infringement be committed for commercial advantage or private financial gain - is akin to theft or fraud offenses.

The full text of Matter of Zaragoza-Vaquero can be found here:

https://www.justice.gov/eoir/file/896301/download

Eleventh Circuit Addresses Florida Conviction for Abuse of an Elderly or Disabled Person

The Eleventh Circuit has determined that a Florida conviction for abuse of an elderly or disabled person is categorically a crime involving moral turpitude.  The court acknowledged that no actual injury need be inflicted on the victim, and that the statute can be violated by encouraging another person to abuse the victim.  Nonetheless, the court focused on the vulnerable population protected by the statute to find that all conduct criminalized under the statute involves moral turpitude.

The full text of Gelin v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201512497.pdf

Tenth Circuit Affirms Legality of Final Administrative Order of Removal Process

The Tenth Circuit has determined that the administrative removal process for non-lawful permanent residents convicted of aggravated felonies is legal.  The court also determined that a federal felony conviction for possession with intent to distribute marijuana is an aggravated felony.

The full text of Osuna-Gutierrez v. Johnson can be found here:

https://www.ca10.uscourts.gov/opinions/14/14-9593.pdf

Ninth Circuit Dismisses Class Action Claim for Appointed Counsel for Unrepresented Minors

The Ninth Circuit has dismissed a class action lawsuit brought by unaccompanied minors seeking appointed counsel to represent them in their immigration proceedings.  The court determined that right-to-counsel claims can only be brought through the petition for review process - which follows the administrative immigration proceeding - and not through a district court action.  The court acknowledged the difficulty of expecting an unrepresented child to assert a right to counsel, but determined that the relevant jurisdictional statutes constrained their authority.  The court clearly expressed an expectation that a right to counsel claim will be brought through a petition for review, and called on Congress and the Executive to resolve this problem through the legislative process instead of waiting for judicial decision.

The full text of J.E. F.M. v. Lynch can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf

Ninth Circuit Construes Terrorist Bar

The Ninth Circuit has adopted a framework for analyzing when the material support to terrorism bar applies.  Thus, the Government must show that the record evidence raises the inference that each element of the terrorist bar could be met before the applicant’s burden of proof arises.  To invoke the terrorist bar, it is not enough for the government simply to assert that an individual was involved with a radical political or religious group.  Instead, there must be some evidence indicating that all of the following is true: that the alleged terrorist group consisted of two or more people, who engaged in one of six enumerated “terrorist activities,” and that the applicant for relief actually knew of this activity when he provided material support to the group. 

In the instant case, the IJ was required to find that the JMA (the purported terrorist group at issue) used “any . . . explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain)” in pursuit of its goals.  Because the record was devoid of any evidence that the JMA ever used weapons to pursue its goals, the agency erred by deeming it a terrorist organization.  

The full text of Budiono v. Lynch can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/21/12-71804.pdf

First Circuit Permits Adverse Credibility Finding Based on Border Interview

The First Circuit has upheld an adverse credibility determination based on discrepancies between the applicant's in-court testimony and his interview with a government official at the border at the time of his entry into the United States.  Despite the applicant's assertions that he did not remember being asked certain questions during the border interview and that his testimony during that interview was affected by stress and the necessity of using a telephonic interpreter, the court found that "ample evidence" supported the adverse credibility determination.

The full text of Legal v. Lynch can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2529P-01A.pdf

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

Joining the Sixth and Ninth Circuits, the Tenth Circuit has determined that the definition of a crime of violence contained in 18 USC 16(b) is unconstitutionally vague under the Supreme Court's 2015 decision in Johnson v. United States.

The full text of Golicov v. Lynch can be found here: 

https://www.ca10.uscourts.gov/opinions/16/16-9530.pdf

Eleventh Circuit Evaluates a Florida Conviction for Sale of a Controlled Substance

The Eleventh Circuit has determined that sale of a controlled substance under Florida Statute § 893.13(1)(a)(1) is an illicit trafficking aggravated felony.  The court determined that the statute is divisible, containing 6 discrete offenses: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture.  Thus, the modified categorical approach was appropriately applied to determine that the petitioner was convicted of sale of a controlled substance.

The full text of Spaho v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/pub/files/201511299.pdf

BIA Addresses the Intersection of Extortion and Theft Offenses

The Board of Immigration Appeals (BIA) has determined that extortionate takings qualify as theft offenses because takings accomplished through threats, fear, or force are essentially non-consensual.  Accordingly, the BIA held that a California robbery conviction is a theft offense aggravated felony.

The full text of Matter of Ibarra can be found here:

https://www.justice.gov/sites/default/files/pages/attachments/2016/09/15/3872.pdf

Ninth Circuit Construes "Admission in any Status"

The Ninth Circuit has determined that an applicant who was listed as a derivative beneficiary on his mother's NACARA application was not admitted in any status (as contemplated by the cancellation of removal for lawful permanent residents statute) at the time of that application.  In addition, the conferring of work authorization as a result of that pending application did not result in an admission. 

The full text of Fuentes v. Lynch can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/14/13-74056.pdf

BIA Clarifies Definition of Crime of Violence

The Board of Immigration Appeals (BIA) has issued a new decision in Matter of Guzman-Polanco, a decision issued earlier this year on the definition of a crime of violence.  The BIA continued to indicate that a crime of violence requires violent force, not slight force.  With respect to the issue of indirect force (i.e. the use of poison), the BIA indicated that it would defer to the circuit court interpretations on this issue.

The full text of the new decision in Matter of Guzman-Polanco can be found here:

https://www.justice.gov/eoir/file/890751/download

Eighth Circuit Finds that Minnesota Attempted Drive By Shooting Conviction is a Violent Felony

In the context of a criminal sentencing case, the Eighth Circuit has determined that a Minnesota conviction for attempted drive by shooting is a violent felony under the force clause of the Armed Career Criminal Act (ACCA), even though the statute encompasses reckless conduct.  The ACCA's force clause is worded in a similar fashion to the definition of a crime of violence in the immigration context.  Thus, this case may indicate some of the immigration consequences of a conviction under this statute, depending on whether your circuit has defined crimes of violence to exclude reckless conduct.

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

http://media.ca8.uscourts.gov/opndir/16/09/153078P.pdf