Second Circuit Finds that New York Drug Statutes are Indivisible

The Second Circuit has determined that New York's drug statutes are indivisible with respect to the controlled substance involved in an offense.  As such, a conviction under N.Y. Penal Law § 220.31 (criminal sale of a controlled substance in the fifth degree) is not an aggravated felony because a conviction may involve substances not listed in the federal controlled substance schedules.

The full text of Harbin v. Sessions can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/c310fed2-a2b8-4d7f-82f9-48d3d829572c/12/doc/14-1433_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c310fed2-a2b8-4d7f-82f9-48d3d829572c/12/hilite/

Ninth Circuit Acknowledges Changed Country Conditions for the LGBT Community in Ethiopia

The Ninth Circuit has remanded a case in which the Board of Immigration Appeals denied a motion to reopen to seek protection under the Convention Against Torture (CAT) based on changed country conditions in Ethiopia for the LGBT community.  In so doing, the court noted that "at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia."  "It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT."

The full text of Agonafer v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

Second Circuit Extends Vartelas

The Second Circuit extended the Supreme Court's decision in Vartelas v. Holder, and found that a lawful permanent resident who commits a crime before April 1, 1997, but who is not formally convicted of that crime until after April 1, 1997, is still not subject to grounds of inadmissibility for that conviction if he is returning from a brief, innocent, and casual trip abroad.

The full text of Centurion v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/b89fe7ff-0f51-4dd0-a70b-a7a14fd38a4f/11/doc/15-516_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b89fe7ff-0f51-4dd0-a70b-a7a14fd38a4f/11/hilite/

Eighth Circuit Finds that MN Diversion Qualifies as a Conviction

The Eighth Circuit has found that Minnesota's diversion program - which requires a defendant to admit facts sufficient to warrant a guilty finding - qualifies as a conviction for immigration purposes.  In the instant case, the petitioner was ordered to pay restitution and complete community service hours, and the circuit court determined that these requirements qualified as a restraint on the petitioner's liberty.

The full text of Mendoza-Saenz v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/17/06/161256P.pdf

Supreme Court Addresses Prejudice Requirement for Ineffective Assistance of Counsel

The Supreme Court has issued further guidance on how immigrants who were misadvised about the immigration consequences of their guilty pleas can establish the required prejudice to vacate those pleas.  Specifically, the Court determined that even an immigrant with no defense to a pending charge might decide to take their chances with a jury, on the slim chance they would be acquitted, rather than take a plea bargain that would result in certain deportation.

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

https://www.supremecourt.gov/opinions/16pdf/16-327_3eb4.pdf

Supreme Court Rules that Non-Material False Statements can not be used to Denaturalize Someone

The Supreme Court has issued a decision construing when a person procures naturalization in a manner contrary to law.  Specifically, the Court held that the false statement must have some causal connection to the approval of the naturalization application.  "The statute it passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization."  

"If the facts the defendant misrepresented are themselves disqualifying, the jury can make quick work of that inquiry. In such a case, there is an obvious causal link between the defendant’s lie and her procurement of citizenship. To take an example: An applicant for citizenship must be physically present in the United States for more than half of the five-year period preceding her application."  

"But that is not the only time a jury can find that a defendant’s lie had the requisite bearing on a naturalization decision. For even if the true facts lying behind a false statement would not in and of themselves justify denial of citizenship, they could have led to the discovery of other facts which would do so . . .  a person whose lies throw investigators off a trail leading to disqualifying facts gets her citizenship by means of those lies—no less than if she had denied the damning facts at the very end of the trail."

"When relying on such an investigation-based theory, the Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, seeking only evidence concerning citizenship qualifications, to undertake further investigation.  If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. As to that second link in the causal chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation would predictably have disclosed some legal disqualification. If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think § 1425(a) requires."

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

https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf

Homeland Security Rescinds DAPA/Expanded DACA memo

The Department of Homeland Security has rescinded the November 2014 memo that would have expanded Deferred Action for Childhood Arrivals (DACA) and would have offered deferred action to certain parents of U.S. citizens and lawful permanent residents.  These programs never went into effect, as an injunction was issued by a federal district court in Texas before they could be implemented.  The original DACA program remains intact.  Though not entirely unexpected, this announcement still comes as a disappointment to all of the families that hoped to benefit from the expansion of deferred action.

The announcement can be found here: 

https://www.dhs.gov/news/2017/06/15/rescission-memorandum-providing-deferred-action-parents-americans-and-lawful

BIA Finds a Receipt of Stolen Property Aggravated Felony Requires “Knowledge or Belief” that Property has been Stolen

The Board of Immigration Appeals (BIA) had determined that the generic definition for a receipt of stolen property aggravated felony includes a requirement that the defendant have knowledge or belief that the property has been stolen.  The South Dakota receipt of a stolen vehicle statute only requires a reason to believe that the vehicle has been stolen.  Thus, this statute does not match the generic definition of a receipt of stolen property aggravated felony.  "We cannot infer that a violator who received property with a “reason to believe” that the property was stolen (or a similar mens rea) intended to deprive the true owner of the rights and benefits of ownership. This is so because such a violator need not be actually aware of the stolen character of the item received in order to be convicted of the offense."  The BIA acknowledged that the statute at issue is indivisible, and thus, will never qualify as a receipt of stolen property aggravated felony.

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

https://www.justice.gov/eoir/page/file/974211/download

Supreme Court Strikes Down Acquired Citizenship Statute on Equal Protection Grounds

The Supreme Court has ruled that 8 USC 1409, which makes it more difficult for unwed US fathers to transmit citizenship to children born abroad than for unwed mothers, violates the guarantee of equal protection before the laws.  "While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear, this Court is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term §1409(c) reserves for unwed mothers."  Instead, the Court must "extend[] the general rule of longer physical-presence requirements to cover the previously favored group."  "Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers."

The full text of Sessions v. Morales-Santana: 

https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf

BIA Finds that a Receipt of Stolen Property Aggravated Felony does not Require that the Property be Obtained by Theft

The Board of Immigration Appeals has determined that the generic definition of a receipt of stolen property does not require that the property be obtained by common law theft.  Even if the property is obtained by fraudulent means, the conviction can qualify as a receipt of stolen property aggravated felony.  Thus, a conviction under section 496(a) of the California Penal Code qualifies as a receipt of stolen property aggravated felony if a sentence of at least one year of imprisonment is imposed. 

The full text of Matter of Alday-Dominguez can be found here:
https://www.justice.gov/eoir/page/file/970806/download

BIA Determines that a Fraudulently Procured Certificate of Citizenship does not Confer Citizenship

The Board of Immigration Appeals has held that a certificate of citizenship procured by fraud does not confer citizenship on the applicant.  Thus, the applicant is still subject to charges of removability in an immigration court.  "A certificate of citizenship only provides documentation of United States citizenship for persons who claim to have obtained that status derivatively.  It does not confer United States citizenship but only furnishes recognition and evidence that the applicant has previously obtained such status derivatively, that is, upon the naturalization of a parent or parents.  Thus, the issuance of a certificate of citizenship, like a United States passport, only serves as indicia of citizenship. It is not a grant of United States citizenship.  Because the respondent’s United States citizenship claim was based on fraud, his Certificate of Citizenship is void. Once it was discovered that the respondent’s Certificate of Citizenship had been issued in error, the District Director had an affirmative duty to institute administrative proceedings to cancel it."

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

https://www.justice.gov/eoir/page/file/971036/download

Ninth Circuit Finds that CA Conviction for Fleeing from a Police Officer isn't a CIMT

The Ninth Circuit has determined that a California conviction for fleeing from a police officer is not a crime involving moral turpitude.  This statute, which requires a defendant to act with “willful or wanton disregard,” can be violated by fleeing a police officer while committing “three or more violations that are assigned a traffic violation point count under Section 12810.”  In other words, a person can violate this statute by fleeing a police officer and committing three traffic violations, such as knowingly driving on a suspended license that was revoked because of prior negligent driving.  This conduct, the court concluded, does not entail "a substantial, actual risk of imminent death to another person."  The court further concluded that the statute was not divisible, and as such, never qualifies as a crime involving moral turpitude.

The full text of Ramirez-Contreras v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Seventh Circuit Finds that Individual Subject to Reinstated Expedited Order of Removal has no Standing to Challenge Asylum Regulations

The Seventh Circuit has found that an individual subject to a reinstated order of removal, and thus, who is ineligible under the regulations to apply for asylum, has no standing to challenge that regulation because asylum is a discretionary form of relief.  

The full text of Garcia v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D06-08/C:16-3234:J:Manion:aut:T:fnOp:N:1977342:S:0

Ninth Circuit Recognizes the Difficulty of Testifying about Trauma

In an unpublished decision, the Ninth Circuit recognized the difficulty of testifying about trauma and reversed an adverse credibility determination for a victim of domestic violence seeking asylum.  

"[T]he circumstances of Ortiz’s testimony make the asserted inconsistencies only minimally probative of her credibility. At both her reasonable fear interview and at her hearing before the IJ, Ortiz testified without counsel, through an interpreter, and about very traumatic subjects. It is likely that the inconsistencies identified by the BIA were the products not of untruthfulness, but of misunderstanding, mistake, or bad memory.  Considering the record as a whole, the 'totality of the circumstances, and all relevant factors,' we hold that the BIA’s adverse credibility determination was not supported by substantial evidence."

The full text of Ortiz-Ortiz v. Sessions can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/06/09/14-73863.pdf

Fourth Circuit Finds that Virginia Deferred Adjudication Qualifies as a Conviction for Immigration Purposes

The Fourth Circuit has determined that a deferred adjudication program which requires a defendant to plead guilty at the outset still qualifies as a conviction if the judge imposes probation.  The Court noted that it would have reached a different outcome if the defendant had not been required to enter a guilty plea.  The Court recognized that its decision created "a disparity between defendants who plead guilty under the Virginia first offender statute and those who plead not guilty."

The full text of Payan-Jaquez v. Sessions can be found here: 

http://www.ca4.uscourts.gov/Opinions/Published/161147.P.pdf

Third Circuit Finds that IJ's Rude Behavior Violates Due Process and Urges the BIA to Stop Avoiding the Question of the Cognizability of Particular Social Groups

The Third Circuit determined that an Immigration Judge violated an unrepresented applicant's due process rights by continuously interrupting him, speaking to him in a rude tone, and preventing him from providing testimony about his fear of return to El Salvador.  The judge was also clearly unfamiliar with the basic facts in the record.

In addition, the Court called on the Board of Immigration Appeals (BIA) to stop its practice of bypassing the question of whether a particular social group is valid, and proceeding straight to the nexus determination.  "In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus.  This practice, however, can have troubling consequences.  First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what?  Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.”  Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale."  

"[T]he BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, and ultimately generating additional needless litigation because of the uncertainty in this area."  

The full text of Serano-Alberto v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

BIA Addresses Family as a Particular Social Group

The Board of Immigration Appeals (BIA) has determined that family can be a cognizable particular social group for asylum and withholding of removal purposes.  However, the BIA noted that not all family-based social groups will qualify as particular social groups.  "We agree with the DHS’s argument that the inquiry in a claim based on family membership will depend on the nature and degree of the relationships involved and how those relationships are regarded by the society in question."  In the instant case, the BIA had "no difficulty identifying the respondent, a son residing in his father’s home, as being a member of the particular social group comprised of his father’s immediate family." 

The BIA went on to find that the applicant had not demonstrated the requisite nexus between his family ties and the harm he suffered.  "An asylum applicant’s membership in a family-based particular social group does not necessarily mean that any harm inflicted or threatened by the persecutor is because of, or on account of, the family membership.  A persecution claim cannot be established if there is no proof that the applicant or other members of the family were targeted because of the family relationship. If the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not  established a claim on this ground."

"According to the facts found by the Immigration Judge in this case, the cartel attempted to coerce the respondent’s father into selling contraband in his store. When he refused, the cartel approached the respondent to sell its product because he was in a position to provide access to the store, not because of his family membership." Under these circumstances, the BIA found that family membership was not one central reason for the harm inflicted on the applicant.  Instead, "the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.  Any motive to harm the respondent because he was a member of his family was, at most, incidental. In this regard, we point out that the evidence does not indicate that the persecutors had any animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit."  

"It is significant that the cartel directly asked the respondent to sell their drugs in the store. This act bears no tie to an enumerated ground but is rather a direct expression of the cartel’s motive to increase its profits by selling contraband in the store."  This last piece of the BIA's decision suggests that if the cartel had never asked the applicant to sell drugs, but instead, had harmed him after his father refused to do so, the applicant may have had a stronger argument that he suffered family-based persecution.  

The full text of Matter of L-E-A- is available here:

https://www.justice.gov/eoir/page/file/969456/download

Ninth Circuit Upholds Habitual Drunkard Bar to Good Moral Character

Sitting en banc, the Ninth Circuit has reversed the 3-judge panel's decision in Ledezma-Cosino v. Sessions, and upheld the habitual drunkard bar to good moral character.  First, the court upheld the determination that Ledezma-Cosino met the definition of a habitual drunkard.  "In 2010, treating doctors recorded a 'more than ten year history of heavy alcohol abuse,' during which time Petitioner drank '1 liter of tequila per day on the average.' In 2008, he was convicted of driving under the influence. During Petitioner’s removal proceedings, Petitioner’s daughter testified that he had 'a drinking problem' and that his liver had failed because of '[t]oo much alcohol,' '[t]oo much drinking.  At a minimum, the evidence does not compel the conclusion that Petitioner was not a habitual drunkard."

Second, the court determined that the bar was not unconstitutionally vague. "[T]he term 'habitual drunkard' readily lends itself to an objective factual inquiry. And whatever uncertainty the term 'habitual drunkard' may raise in borderline cases, a person of ordinary intelligence would have fair notice that the term encompasses an average daily consumption of one liter of tequila for a 10-year period, leading to a conviction for driving under the influence. Because Petitioner has engaged in conduct that is clearly covered, he 'cannot complain of the vagueness of the law as applied to the conduct of others.'"

Finally, the court also determined that the bar did not violate equal protection.  "Congress reasonably could have concluded that, because persons who regularly drink alcoholic beverages to excess pose increased risks to themselves and to others, cancellation of removal was unwarranted. We see nothing irrational about that legislative choice, which furthers the legitimate governmental interest in public safety. Nor does it matter that Congress has permitted cancellation of removal for other 13 groups who may pose similar risks."

The full text of Ledezma-Cosino v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/12-73289.pdf

Eighth Circuit Finds that Nebraska Conviction for Making Terroristic Threats is a Violent Felony

The Eighth Circuit has determined that a Nebraska conviction for making terroristic threats is a violent felony under the Armed Career Criminal Act (ACCA).  The statute criminalized, among other things, "commit[ing] any crime of violence . . . With the intent of causing the evacuation of a building, place of assembly, or facility of public transportation."  The Nebraska Supreme Court has defined the term “crime of violence” as “an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority.”

Fletcher, the defendant, argued that the statute could be violated by making threats to property, and thus, did not qualify as a violent felony.  The Court disagreed.  "Fletcher points to no case in which Nebraska has applied the terroristic threats statute to a threat to commit arson of an unoccupied building. As a result, even if the theoretical possibility exists that the Nebraska terroristic threats statute could encompass threats only to property, Fletcher has not demonstrated a realistic probability that Nebraska would apply the statute in that manner." 

Given the similarity in definition between a violent felony under the ACCA and a crime of violence aggravated felony for immigration purposes, this case could have persuasive effect in the immigration context.  

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

http://media.ca8.uscourts.gov/opndir/17/05/161220P.pdf

Fifth Circuit Finds that AZ Drug Statute is Divisible

The Fifth Circuit has determined that Arizona Revised Statute Section 13-3405(A)(4), which criminalizes sale, transportation, importation, transfer and offers to transport for sale, import, sell, or transfer of marijuana, is divisible.  The court noted that Arizona state courts are divided on whether the "offer to" offenses - known as solicitation offenses - were distinct from the other offenses, or were merely alternative means committing these offenses.  The court took a "peak" at the petitioner's record of conviction, and noted that the indictment charged all of these provisions, but his plea document and judgment listed only “attempted transportation of marijuana for sale.”  This, the court concluded, indicated a divisible statute.  "When the relevant documents use one alternative term to the exclusion of all others, that indicates that the terms within the statute are individual elements."  The court also note that there are separate pattern instructions for transport for sale and offer to transport for sale, reinforcing that these are distinct offenses.

The full text of Ibanez-Beltran v. Lynch can be found here:
http://www.ca5.uscourts.gov/opinions/pub/15/15-60183-CV0.pdf