Holder v. Carlos Martinez Gutierrez

May 212012
 

In a unanimous decision, the Supreme Court found the Board reasonably interpreted INA 240A(a) cancellation of removal to require that the respondent personally satisfy the requirements of 7 years of lawful residence and 5 years of permanent resident status. Since this was a reasonable interpretation of a statute that the Board is charged with administering, the Court overruled the Ninth Circuit’s contrary interpretation–which imputed a parent’s period of lawful residence or permanent resident status to his or her child. Cuevas-Gaspar v. Gonzales, 430 F. 3d 1013 (9th Cir. 2005) and Mercado-Zazueta v. Holder, 580 F. 3d 1102 (9th Cir. 2009) thus are no longer good law.

Read the decision at http://www.supremecourt.gov/opinions/11pdf/10-1542.pdf.

Matter of E.W. Rodriguez

May 182012
 

Three circuit courts, the Fourth, Fifth, and Eleventh, have held that the unambiguous language of section 212(h) mandates that conviction of an aggravated felony only disqualifies a permanent resident from a 212(h) waiver if the conviction occurs after admission of the alien as a permanent resident after inspection at a port of entry. In this decision, the Board decided to follow that precedent only within the jurisdiction of those courts. In other circuits, the Board will adhere to its previous decision in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), which held that an alien who enters without inspection and then adjusts status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” for purposes of the 212(h) aggravated felony bar.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3749.pdf

Khalil-Salim Arbid v. Holder

Apr 052012
 

The Ninth Circuit held that the decision as to whether a conviction is a “particularly serious crime” to bar asylum and withholding of removal is an inherently discretionary decision. Thus, the court will review a finding by the Board of Immigration Appeals that an offense is a particularly serious crime for abuse of discretion. The court found no abuse of discretion here where the immigration judge and Board reviewed the Statement of Facts from the guilty plea, took testimony from the applicant, and decided that a fraud conspiracy that resulted in a loss to the victims of nearly $2 million amounted to a particularly serious crime.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/04/03/09-73211.pdf.

An Na Peng v. Holder

Apr 052012
 

This decision extends the Supreme Court’s decision in INS v. St. Cyr, which held that permanent residents who pled guilty to a removable offense prior to Congress’ enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 remained eligible for discretionary relief from removal under former section 212(c) even though IIRAIRA repealed that form of relief. Although St. Cyr concerned a resident who pled guilty, Peng extends that holding to permanent residents who were convicted at trial of a crime involving moral turpitude who can plausibly argue they relied on the availability of 212(c). The decision rejected, however, Peng’s argument that IIRAIRA’s creation of a 7 year residence requirement for relief from removal under 212(h) was impermissibly retroactive.

Here, Peng could plausibly argue reliance on the existing state of the pre-IIRAIRA law when she decided to go to trial. A guilty plea to the charged offense (conspiracy to defraud the former INS, 18 U.S.C. § 371 (1995)) would result in no immigration benefit. She would be deportable no matter whether she pled guilty or was convicted at trial. Likewise, she would be eligible for 212(c) as a discretionary form of relief from deportation no matter whether she pled guilty or was convicted at trial. However, the option of proceeding to trial offered the benefit of the possibility of acquittal. In choosing that option, she plausibly could be said to rely on the availability of 212(c) even if the jury convicted her and the judge sentenced her to the maximum potential sentence. The maximum potential sentence was 5 years, and the aggravated felony definition at the time required a sentence to more than 5 years (an aggravated felony would have disqualified her from 212(c)).

The court contrasted this situation with that of a resident charged with an offense that could be an aggravated felony depending on the sentence imposed by the judge. Since it would leave the sentence in the hands of the judge and thus leave the question of whether it was an aggravated felony in the hands of the judge, a decision to go to trial would preclude a showing of plausible reliance.

Although the court found the repeal of 212(c) impermissibly retroactive because Peng plausibly could have relied on 212(c) as relief from removal, it dismissed without much explanation her argument that IIRAIRA’s changes to 212(h) were not impermissibly retroactive. Adjustment of status with a waiver under 212(h) was another form of discretionary relief that was available to Peng when she decided to go to trial in her case. She could have relied on it to the same extent she relied on 212(c). Congress, however, later imposed a requirement of 7 years of continuous residence prior to the initiation of removal proceedings for a permanent resident to be eligible for 212(h). That disqualified Peng from something she plausibly could have relied upon, so it is not apparent why the court would reach a different conclusion. The brief treatment in the opinion mentions that she already had permanent resident status at the time she went to trial and seems to suggest that makes a difference. Perhaps the panel did not understand that adjustment with a 212(h) waiver is a long-recognized form of discretionary relief not just for non-residents, but also for residents like Peng.

Finally, the court rejected Peng’s argument that imposing a 7 year continuous residence requirement on aliens previously granted permanent resident status, but not on those who have not previously held permanent resident status, violates equal protection. It cited Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) for the proposition that residents have greater rights so Congress may rationally hold them to a higher standard.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/03/22/06-75841.pdf

Manuel Alejandro Rangel-Zuazo v. Holder

Feb 272012
 

In a per curiam decision, the Ninth Circuit held that a juvenile offender has a conviction under 8 USC § 1101(a)(48)(A) if he is charged as an adult and receives the conviction after attaining the age of majority, since in that case the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-504, would not apply.

The court also summarily found no equal protection violation in distinguishing between juvenile offenders depending on whether they reach the age of 18 before adjudication or conviction and depending on whether the conviction is as a juvenile or adult (rather than the offender’s age at the time of the offense). The court did not even address the petitioner’s arguments, if there were any.

When this opinion was first issued in January 31, 2011, the court had held that 212(c) was not available for lack of a comparable statutory ground of inadmissibility. The court withdrew and reissued the decision, overruling the 212(c) holding based on Judalang and leaving the rest of the decision as it was.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/13/07-72316.pdf.

Jacqueline Tyson v. Holder

Jan 272012
 

The Ninth Circuit held that a stipulated facts trial is functionally equivalent to a guilty plea for purposes of eligibility for 212(c) under the Supreme Court’s decision in St. Cyr. In this case, the noncitizen was charged with heroin importation and possession with intent to distribute. She had brought the heroin back to the U.S. in 1980 after using it in Thailand to manage pain from a surgery she had there. In the criminal proceedings, she waived many of her constitutional rights and agreed to a court trial where she stipulated to possession of $100k worth of heroin with the intent to use it exclusively for herself. The criminal court found her guilty of importation and not guilty of possession with intent to distribute.

DHS put her in removal proceedings in 2005 based on inadmissibility for a controlled substance offense. The immigration judge and BIA found her ineligible to waive her inadmissibility under former section 212(c), which was repealed in 1996. She would have been eligible for 212(c) if she had been put in exclusion proceedings 20 years earlier, and clearly would be eligible even now–if she had entered a guilty plea. Given retroactivity concerns, the Supreme Court determined in St. Cyr that 212(c) remains available for persons who pled guilty prior to its repeal because they presumably would be relying on its availability when they gave up their constitutional rights. The BIA held this case was distinguishable because the Tyson had a court trial instead of pleading guilty.

The Ninth Circuit held that a stipulated facts trial in these circumstances was more like a guilty plea than a contested court or jury trial, since her stipulation virtually assured her conviction on the importation count. In fact, the panel found it was akin to a no-contest plea, which the regulations specifically recognize preserves 212(c) eligibility. 8 C.F.R. § 1212.3(h). The fact that the record evidence of quid pro quo for the plea is weak is not determinative, although the government did benefit by saving resources and she received a relatively light plea.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/01/27/08-70219.pdf.

Matter of R-A-M-

Jan 042012
 

The Board of Immigration Appeals held that a conviction under California Penal Code § 311.11(a) for possession of child pornography was an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). It also held that the circumstances surrounding the offense made it a particularly serious crime that barred withholding of removal.

The Board noted that the aggravated felony definition at section 1101(a)(43)(I) covers offenses described in 18 U.S.C. § 2252(a)(4) (punishing knowing possession of visual depictions of minors engaged in sexually explicit conduct) and found that California Penal Code § 311.11(a) was an offense described by the federal statute. The Board did not address, however, the fact that the California law is seemingly broader than the federal offense. The California statute explicitly penalizes simulated sexual conduct, but the federal statute does not. Unless case law has interpreted these statutes to mean essentially the same thing, there is not a categorical match between them.

Absent a categorical match, the Board should have determined whether the modified categorical approach could be used to determine if the record of conviction established a conviction that matched the federal definition. The Board did not do that analysis since it appeared to view the offense as a categorical aggravated felony. This is a potential basis for challenge.

The Board also reviewed the nature of the crime and individual circumstances of the offense and found that it was a particularly serious crime that barred withholding of removal. It agreed that possession of child pornography was a less serious offense than producing or distributing it, but nonetheless found it to be a very serious offense. The Board found that persons who downloaded the material created a demand for its production. It also noted the continuing harm to the child victims that occurs every time someone downloads it. The Board also considered the circumstances of the respondent’s offense and placed particular emphasis on the fact that the respondent made multiple downloads of the material.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3736.pdf.

Joel Judulang v. Holder

Dec 192011
 

In a Christmas gift to a couple of my clients, the Supreme Court rejected the Board of Immigration Appeal’s statutory comparability test for use of former section 212(c). Since 212(c) refers to inadmissibility, the test provided that the waiver is available for a ground of deportability only if the statutory text is substantially similar to the text of a ground of inadmissibility. The Supreme Court, in a rare unanimous decision, convincingly demonstrated that the Board’s test was untethered to the plain language of 212(c) and that it was arbitrary and capricious. The comparability test is arbitrary and capricious because determining whether a ground of deportability is too broad or too narrow has nothing to do with the immigrant’s fitness to remain in the U.S. In other words, the inclusion of too many or too few other crimes in a ground of deportability is irrelevant. The Court therefore held the Board’s rule did not survive even the deferential review given to it under Administrative Procedure Act.

The Court noted the Board was free to develop a new rule, but the reasoning behind the Court’s decision suggests a rule that focuses on the immigrant’s actual conviction. If it would make an immigrant inadmissible, then it should to be waivable under 212(c) even for a charge of deportability. The Court did not actually hold that, but indicated that such a rule would not be irrational. Hopefully, the Board will get the hint.

Read the opinion at http://www.supremecourt.gov/opinions/11pdf/10-694.pdf.

David Ernesto Lopez-Cardona v. Holder

Nov 282011
 

In a decision with rather shoddy reasoning, in this blogger’s opinion, the panel held that the noncitizen was barred from withholding of removal under INA 241(b)(3) for conviction of a particularly serious crime.

The offered justification for concluding that the respondent’s residential burglary conviction(s) (one, or all three collectively, the opinion does not say) is a particularly serious crime is that California residential burglary is a crime of violence under 18 USC 16(b). As a crime of violence with a sentence to a year or more, a crime would be an aggravated felony, but that does not automatically equate to a particularly serious crime, as the panel acknowledges. Rather, the panel seems to simply equate a crime of violence with a particularly serious crime. It did not cite any authority for this conclusion and this blogger is not aware of any. It did not even discuss this premise in any detail, suggesting that it was an oversight.

The panel held that “residential burglary under California Penal Code § 459 constitutes a crime of violence because it is a felony ‘that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’ 18 U.S.C. § 16(b).” This is contrary to the reasoning of a recent en banc Ninth Circuit.

The Ninth Circuit in Aguila Montes de Oca recognized that California’s burglary statute penalizes entry into a residence with intent to commit theft or any felony even if the entry is licensed or privileged or even at the owner’s personal invitation. See People v. Frye, 959 P.2d 183 (Cal. 1998), overruled on other grounds by People v. Doolin, 198 P.3d 11 (Cal. 2009). For example, a servant who enters his master’s house with the intent to appropriate the family silver while at work commits a residential burglary under California law. Likewise the firefighter who enters a burning building with the intent to appropriate valuables while fighting a fire. Thus, the Ninth Circuit held that California burglary is not categorically a burglary under the generic federal definition, which requires an unlawful or unprivileged entry.

Whether a California burglary meets the generic federal definition is admittedly a different question than whether the crime involves a substantial risk that (violent) physical force will be used in the course of committing the crime. And the Lopez-Cardona panel distinguished Aguila on this basis. However, the servant and firefighter examples of licensed or privileged entries are precisely the types of situations where a California burglary would not by its nature involve a substantial risk of the use of physical force being used in the course of the crime. Another example, courtesy of the ILRC, shows it even more clearly: a person commits a California burglary when he enters a home at the owner’s invitation with the intent to fraudulently sell worthless life insurance. That type of theft or felony does not carry an inherent risk of violent physical force being used in the course of the crime. So, it is not categorically a crime of violence (although that still might be established under the modified categorical approach, particularly post-Aguila).

Finally, the decision notably failed to even cite the Ninth Circuit’s recent tour-de-force decision by another panel on the particularly serious crime bar to withholding–Delgado v. Holder. Just another indication that this decision was not carefully vetted.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/18/09-71661.pdf

Juan Pablo Gutierrez v. Holder

Nov 072011
 

The Ninth Circuit upheld the denial of relief from removal for lack of good moral character The immigration judge and BIA found the applicant lacked good moral character because he had 7 or 8 DUI convictions spanning 23 years, including one that resulted in an 8 month prison sentence immediately before he was put in removal proceedings. He also continued to drive without a license even after he was put in proceedings.

The applicant was seeking registry, a form of relief for persons who have continuously resided in the U.S. since before 1972 and who have good moral character and no disqualifying acts. The court found that the immigration judge properly considered past conduct to determine the applicant’s current character, even though registry does not require good moral character for a specified period of time.

Given the egregious facts of this case, the outcome was not surprising. The opinion is significant only because the Ninth Circuit found jurisdiction to review the good moral character finding at all. The Act prohibits judicial review of discretionary decisions specified to be in the authority of the Attorney General. The ultimate decision to grant registry is specified to be in the AG’s discretion, but the underlying decision regarding whether good moral character exists is not. Thus, the court found it could review that determination.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/07/06-71680.pdf

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