BIA Clarifies Drug Trafficking Aggravated Felony Analysis

The Board of Immigration Appeals has determined that when analyzing whether the conduct criminalized by a state statute would be punishable as a felony under federal law, the adjudicator is not limited to examining the federal law that is most closely analogous to the state statute at issue.  In the instant matter, Rosa was convicted of selling a controlled substance within 1000 feet of a school in New Jersey in violation of N.J. Stat. Ann. § 2C:35-7.  The New Jersey statute criminalized dispensing or distributing drugs, while the federal statute (21 U.S.C. § 860(a)) criminalizing drug activities near a school did not include dispensing drugs.  However, all of the conduct criminalized by the New Jersey statute was included in a different federal statute (21 U.S.C. § 841(a)) which criminalized distributing or dispensing a controlled substance, without reference to the location of a school.  Thus, the New Jersey conviction qualifies as a drug trafficking aggravated felony.

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

https://www.justice.gov/eoir/page/file/1043471/download

Third Circuit Determines that PA Possession of Child Pornography Conviction is Categorically a CIMT

The Third Circuit has determined that a Pennsylvania conviction for possession of child pornography is categorically a crime involving moral turpitude, even considering that an 18-year-old could be prosecuted for sexting with a 17-year-old.  The court also rejected the petitioner's argument that the term "crime involving moral turpitude" was void for vagueness.

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

http://www2.ca3.uscourts.gov/opinarch/171974p.pdf

Attorney General Refers Cases Involving Continuances to Himself for Review

The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.

The text of the referral order in Matter of L-A-B-R- can be found here:

https://www.justice.gov/eoir/page/file/1045661/download

Eleventh Circuit Finds that FL Conviction for Sale of Cocaine is Aggravated Felony

At issue in this appeal was the petitioner's 2006 conviction under Fla. Stat. § 893.13(1)(a)(1). Both parties agreed that, of the six discrete alternative elements outlined in § 893.13(1)(a)(1), the “sale” element formed the basis of the petitioner's conviction.  The Court agreed with the Board of Immigration Appeals' determination in Matter of L-G-H- that the illicit trafficking definition of a drug trafficking aggravated felony does not require knowledge of the illicit nature of the substance trafficked.  Accordingly, the petitioner's conviction qualified as an aggravated felony.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201513845.pdf

Eleventh Circuit Finds that Florida Drug Trafficking Conviction is not an Aggravated Felony

The petitioner was convicted of violating Fla. Stat. § 893.135(1)(b)1.c, which makes it unlawful to sell, purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly possess cocaine.  The Court recognized that it had determined in Cintron v. U.S. Attorney held that Fla. Stat. § 893.135(1)(c) is neither divisible nor a categorical match to a federal crime in the CSA.  Given the nearly identical language in the two statutes, Cintron controlled the outcome of the instant case.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201513223.pdf

Tenth Circuit Finds that Conviction for False Statements in a Passport Application is a CIMT

The Tenth Circuit has determined that a conviction for making false statements in a passport application under 18 U.S.C. § 1542 is categorically a crime involving moral turpitude.  

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

https://www.ca10.uscourts.gov/opinions/17/17-9528.pdf

AG Vacates Precedent Requiring that Immigration Judges Hold a Hearing on Asylum Applications

The Attorney General referred the decision of the Board of Immigration Appeals in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), to himself for review and vacated that decision.  E-F-H-L- prohibited an Immigration Judge from denying an asylum, withholding of removal, and protection under the Convention Against Torture application based solely on the written application and required that the judge hold a hearing on the merits of the application.

The order referring the case can be found here: 

https://www.justice.gov/eoir/page/file/1040936/download

Ninth Circuit Addresses Mental Health and Particularly Serious Crimes

The Ninth Circuit has rejected the Board of Immigration Appeals' (Board) categorical rule, established in Matter of G-G-S-, that an adjudicator may not consider a petitioner's mental health condition when determining whether he has been convicted of a particularly serious crime.  "This decision is contrary to Congress’s clearly expressed intent that the analysis of whether a crime is particularly serious requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress, because such categorical rules undermine the ability of the agency to conduct a case-by-case analysis in each case."  

"The IJ is not retrying the question of guilt but assessing whether the circumstances of the crime are so serious as to justify removal to a country where there is a significant risk of persecution. Therefore, an IJ, as a fact finder focused on that question, may choose to examine what he or she deems reliable evidence of mental health and decide whether such evidence bears on the dangerousness determination, and ultimately whether the individual committed a particularly serious crime, without disturbing, or 'reassessing' the criminal court’s findings." 

"Second, the Board’s concerns about 'going behind' a conviction are unreasonable given that, pursuant to various provisions of the INA, IJs regularly scrutinize the factual circumstances surrounding crimes of conviction."

"Third, the Board’s assumption that consideration of mental health would implicate reassessment of the criminal court’s finding is flawed because the mental health evidence the individual wishes to offer in the immigration court may never have been presented to the criminal court. For example, no specific mental state is required as an element of strict liability offenses, and similarly, mental illness is not a defense to crimes that require only negligence; and at sentencing judges may exercise their discretion and choose not to consider mental illness in making their decision." 

The Court also recognized that the decision in G-G-S- is inconsistent with the Board's caselaw permitting an adjudicator to consider "all reliable information" when making a particularly serious crime determination.  Finally, the Court disagreed with the Board's determination that mental illness is never relevant to the particularly serious crime assessment because it is inconsistent with the Board's precedent recognizing the relevance of motivation and intent to the particularly serious crime determination and fails to recognize that mental illness bears on intent.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/06/14-72506.pdf

Ninth Circuit and Second Circuit Address Retroactive Application of new BIA Precedent

The Ninth Circuit has determined that the Board of Immigration Appeals' (Board) new definition of a theft-related crime involving moral turpitude, outlined in Matter of Diaz-Lizarraga, is a clear break with prior precedent defining theft-related crimes involving moral turpitude, and cannot be applied retroactively to convictions that pre-date the decision in Diaz-Lizarraga.  The petitioner's convictions for theft in Oregon did not require a permanent taking, as required by pre-Diaz-Lizarraga precedent.

The decision in Garcia-Martinez v. Sessions can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/09/16-72940.pdf

The Ninth Circuit cited a recent Second Circuit decision that reached the same conclusion about the impermissible retroactive application of Diaz-Lizarraga.

The decision in Obeya v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/323cc41e-f545-40d3-bad4-14f6b788152a/3/doc/16-3922_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/323cc41e-f545-40d3-bad4-14f6b788152a/3/hilite/

Ninth Circuit Finds that CA Drug Trafficking Conviction is an Aggravated Felony

The Ninth Circuit has determined that a conviction for possession for sale of methamphetamine under section 11378 of the California Health and Safety Code (CHSC) is a drug trafficking aggravated felony.  There are two definitions of a drug trafficking aggravated felony.  First, under the phrase “illicit trafficking in a controlled substance,” a state drug crime is an aggravated felony “if it contains a trafficking element.” Second, under the phrase “including a drug trafficking crime (as defined in section 924(c) of Title 18),” a state drug crime is an aggravated felony if it would be punishable as a felony under the federal drug laws. 

The petitioner argued that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking.  Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law.  Under federal law, the defendant cannot be mistaken about the nature of the substance he is trafficking.  The petitioner argued that because of this mismatch, his conviction does not qualify under the second definition of a drug trafficking aggravated felony.

The court declined to address the petitioner's argument, finding that he trafficked a substance controlled under federal law, and thus, his conviction fell within the first definition of a drug trafficking aggravated felony.  "To the extent 'illicit trafficking' in route one incorporates a mens rea requirement, section 11378 suffices because it  requires that the defendant intend to possess for sale a controlled substance and actually possess for sale a controlled substance, and that both the intended substance and the actual substance be controlled.  This is, in fact, the same mens rea required under federal law."

The full text of United States v. Verduzco-Rangel can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/09/15-50559.pdf

Ninth Circuit Addresses Credibility Standards on Appeal

The Ninth Circuit has determined that where the agency fails to make an explicit adverse credibility determination, a petitioner enjoys a finding of credibility before the federal appellate court.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/08/15-70776.pdf

Ninth Circuit Grants En Banc Rehearing

The Ninth Circuit has granted the petition for en banc rehearing in Marinelarena v. Sessions, a decision that addresses whether an inconclusive record of conviction can meet a petitioner's burden of proving eligibility for immigration relief.

The order granting the motion for en banc rehearing can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/29/14-72003.pdf

Attorney General Refers Asylum Case to Himself

The Attorney General referred the decision of the Board of Immigration Appeals (Board) to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.

The decision to refer this case is widely viewed as an attempt to undermine the Board's precedent in Matter of A-R-C-G-, which recognizes that survivors of domestic violence may qualify for asylum.

The full text of the order in Matter of A-B- can be found here:

https://www.justice.gov/eoir/page/file/1041481/download

Eighth Circuit finds that Missouri Second-Degree Robbery is a Violent Felony

The Eighth Circuit has determined that a Missouri conviction for second-degree robbery is a violent felony under the Armed Career Criminal Act (ACCA). The statute has as an element the use of physical force upon another person or the threat of an immediate use of such force because it requires the use of force capable of preventing or overcoming resistance.  The court overruled its prior, contrary decision in United States v. Bell.  Given the similar definition of a violent felony under the ACCA and a crime of violence in the Immigration and Nationality Act, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/03/161797P.pdf

Eighth Circuit Finds that Missouri Second-Degree Burglary Conviction is not a Violent Felony

The Eighth Circuit has determined that a Missouri conviction for second-degree burglary is not a violent felony under the Armed Career Criminal Act (ACCA) because it criminalizes conduct outside the generic definition of burglary offenses.  The court found that the statute was overbroad because it criminalized entry into any building or inhabitable structure, and that these alternatives were means and not elements of the statute.  Given the similarity between the definition of burglary under the ACCA and in immigration proceedings, this case may have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/04/162047P.pdf

Fourth Circuit Addresses Sex Offenses against Minors

The Fourth Circuit has determined that a Maryland conviction for sexual solicitation of a minor is not categorically a crime involving moral turpitude (CIMT).  The court noted that the Board of Immigration Appeals' (BIA) decision in Matter of Silva Trevino (in effect at the time of the petitioner's conviction) deemed a sexual offense against a minor to be a CIMT only if the statute required the defendant to know (or should know) the victim's age.  The Maryland statute at issue, however, had no such knowledge requirement.  In the instant case, the BIA issued a published decision, reversing its previous precedent, and finding that a sex offense involving a minor could be a CIMT even absent a requirement that the defendant know or should know the victim's age, even if the conviction involved particularly young victims or a sufficient age difference between the victim and the defendant.  The BIA deemed the petitioner's conviction to be a CIMT under this new definition.

While the Fourth Circuit recognized that the BIA has the authority to change its precedent, it emphasized that the BIA must provide a reasoned explanation for doing so.  In the instant case, the BIA failed to explain its sudden departure in precedent.  "Here, we are without a reasoned explanation from the Board for its change in position. And without one, we cannot know whether and how the Board has accounted for the prospect that its prior policy may have engendered serious reliance interests in aliens who pled guilty to certain sexual offenses under the Silva-Trevino regime.  Because the Board’s path from the Silva-Trevino cases to Jimenez-Cedillo’s cannot reasonably be discerned, its decision is arbitrary and capricious and must be set aside."

The Fourth Circuit remanded to allow the BIA to explain its departure in precedent, and also to determine if any new definition of a CIMT could be retroactively applied to Jimenez-Cedlllo. 

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

http://www.ca4.uscourts.gov/opinions/171477.P.pdf

Fourth Circuit Reaffirms that Exclusionary Rule Applies in Immigration Court only to Egregious Violations of the Fourth Amendment

The Fourth Circuit has rejected a request to apply the full scope of the exclusionary rule to evidence obtained in violation of the Fourth Amendment and used by the government in Immigration Court proceedings.  The court affirmed that the exclusionary rule is only applicable in cases of egregious violations of the Fourth Amendment.  This standard applies when state or local law enforcement violate the Fourth Amendment, as well as when federal officials commit the violation.  "A stop or seizure based solely on an abuse of an officer’s legal authority and without reasonable suspicion of criminal activity will usually be egregious."  

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

http://www.ca4.uscourts.gov/opinions/162330.P.pdf

Third Circuit Finds NJ Conviction for Receiving Stolen Property to be Aggravated Felony

The Third Circuit has determined that a New Jersey conviction for receipt of stolen property in the third degree qualifies as an aggravated felony.  The mens rea element of the statute - which requires a defendant to know the property is stolen or to believe that it is probably stolen - meets the mens rea requirement enumerated in Matter of Deang.  

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

http://www2.ca3.uscourts.gov/opinarch/171846p.pdf

Second Circuit Interprets Amendments to the Controlled Substances Act

The Second Circuit has determined that when evaluating the deportability of a respondent based on a drug conviction, the agency must compare the statute of conviction to the Controlled Substances Act (CSA) as it was in effect at the time of the person's conviction.  Thus, even if the CSA is amended after the person's conviction but before his removal proceedings, it is the text of the CSA at the time of the conviction that is applicable.  

The full text of Doe v. Sessions is available here:

http://www.ca2.uscourts.gov/decisions/isysquery/caa8bbbf-5279-4a77-96ca-addec6264e5f/6/doc/16-1256_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/caa8bbbf-5279-4a77-96ca-addec6264e5f/6/hilite/

Second Circuit finds there is no Duress Exception to Material Support Bar

The Second Circuit has deferred the Board of Immigration Appeals' determination that there is no duress exception to the material support for terrorism bar.  The court further determined that petitioners subject to the bar who provided the support involuntarily have no protected liberty interest in the discretionary grant of the waiver of the bar that can be granted by the Secretary of Homeland Security.  "There is therefore no merit to Hernandez’s due process challenge to either the denial of her waiver application or to the waiver system in general."

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

http://www.ca2.uscourts.gov/decisions/isysquery/ca1f0b3a-fd0b-4b57-8d7c-6e2b2e3dd3fe/3/doc/16-2323_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ca1f0b3a-fd0b-4b57-8d7c-6e2b2e3dd3fe/3/hilite/