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Author: Scott Mossman

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I don't usually post about new regulations on this blog, but the recent expansion of the provisional waiver (I-601A) process is too important not to mention.  The process allows immigrants to get a decision on an application for a waiver of inadmissibility before they travel abroad to their immigrant visa interview.  This shortens the time they are separated from U.S. citizen and/or permanent resident family members and also provides assurance that they will be able to return to those family members. USCIS also eliminated the reason-to-believe basis for denial of a provisional waiver, which benefits some applicants while creating a trap for others.

Expansion of Immigrants Eligible for Provisional Waiver

The provisional waiver process previously was open only to persons immigrating as the spouse, child, or parent of a U.S. citizen.  Effective August 29, 2016, any immigrant visa applicant may apply who would need a waiver of inadmissibility  upon departure from the U.S. after unlawful presence of more than 180 days or unlawful presence of one year or more.  That includes all family-based applicants, employment-based applicants, and diversity visa applicants.

Although the process is open to all immigrant visa applicants, applicants still need a qualifying relative. To obtain an approved I-601A, the applicant must establish that requiring him or her to wait outside the U.S. for 3 or 10 years would cause extreme hardship to a U.S. citizen or permanent resident spouse or parent. (Hardship to children does not count, at least not directly.)  That means that an applicant for an employment-based immigrant visa must still have a citizen or resident spouse or parent to benefit from the process.  The same is true for persons immigrating through a citizen brother or sister or through the diversity visa lottery.

Further, applicants need to be aware that the provisional waiver forgives only departure after unlawful presence of more than 180 days (the 3 year bar) and unlawful presence of one year or more (the 10 year bar).  An I-601A does not forgive any other ground of inadmissibility.  For example, it does not forgive entry without admission after April 1, 1997, after a previous removal order or previous unlawful presence of more than one year.  It also does not forgive inadmissibility for a criminal conviction, misrepresentation to obtain an immigration benefit, or other misconduct.  The provisional waiver, even if approved, will be automatically revoked if the consular officer finds the applicant inadmissible on any other basis than departure after unlawful presence.

Elimination of Reason to Believe Basis for Denial

Previously, USCIS would deny I-601A provisional waiver applications where there was reason to believe that the applicant would be found inadmissible on any other basis.  With the new regulations, USCIS has ended that practice.  The change eliminates a source of frustration and confusion, since USCIS's application of the reason to believe standard has varied over the few years the process has been in effect.  In some cases, USCIS has denied otherwise admissible applicants and approved otherwise inadmissible applicants.

The elimination of the reason to believe basis for denial, however, also creates a dangerous pitfall for applicants who apply without the benefit of expert immigration advice.  Applicants who file their own application or who use the services of a notario or less-experienced attorney may obtain an approved I-601A and then depart for the visa interview only to find that they are inadmissible on a basis other than unlawful presence.  That would result in revocation of the approved I-601A.  At best, an immigrant in that situation then would be able to file an I-601 waiver application and wait several months outside the U.S. for a decision on it.  At worst, the applicant may be found inadmissible on a basis that does not permit a waiver and the applicant would then be stuck outside the U.S. with no legal means of immigrating.

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The Ninth Circuit held in Avendano-Hernandez v. Lynch that the Board of Immigration Appeals acted within its proper discretion to hold that the petitioner's felony conviction for driving under the influence (DUI) was a particularly serious crime that disqualified her from receiving withholding of removal.

Ms. Avendano-Hernandez is a transgender woman who requested withholding of removal to Mexico because of repeated acts of rape and sexual assault she experienced there by police, the military, and her own family.  The immigration judge found her testimony credible, but denied her withholding of removal based on her conviction under California Vehicle Code section 23153(b) for driving with a blood alcohol content of 0.08% or greater and causing bodily injury to another person.  She had crashed into another car and the other driver experienced neck and back pain, as well as minor pain to the arm and knee.  She received probation and a jail term of 364 days for this conviction.  She later received a 2 year sentence to imprisonment for a violation of her probation after she was deported and returned illegally without reporting to her probation officer.

The immigration judge and Board found that the conviction was a particularly serious crime that disqualified Ms. Avendano Hernandez from receiving withholding of removal to Mexico based on her experiences of rape and sexual assault there.  The Ninth Circuit's jurisdiction to review this discretionary decision is limited to determining whether the agency considered the facts and circumstances of the crime under the correct legal standard.  The Ninth Circuit found that the immigration judge did improperly consider the probation violation in assessing the seriousness of the underlying crime, but that the Board corrected the immigration judge's error on its de novo review.  The Ninth Circuit concluded that the Board applied the proper legal standard to the facts, so it upheld the decision.

The Ninth's decision then went on to find that Ms. Avendano Hernandez is entitled to deferral of removal under the Convention Against Torture, a less durable form of protection from removal.

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In Calvillo Garcia, the Board of Immigration Appeals held that a term of confinement in a Texas substance abuse treatment facility imposed as a condition of probation counts as a "sentence to imprisonment" under the Immigration and Nationality Act. Since it does, Calvillo Garcia's indeterminate sentence to no less than 6 months and no more than 1 year in such a facility satisfies the one year or more sentence required by the crime of violence aggravated felony definition.

Calvillo Garcia did not dispute that his deferred adjudication under Texas law counted as a conviction under the Act. Nor did he dispute that the offense he was placed on deferred adjudication for, aggravated assault in violation of Texas Penal Code section 22.02(a)(2) was a crime of violence as defined by both subsections (a) and (b) of 18 U.S.C. 16. His only argument was that time ordered to be spent in a substance abuse treatment facility was not a sentence to imprisonment.

Unfortunately for him, the Act defines "sentence to imprisonment" as a “period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 USC 1101(a)(48)(B). The Board found that the inclusion of both incarceration and confinement meant the definition was broader than just time in jail or prison. It agreed with the Third Circuit in this respect. Indeed, the Third Circuit held that confinement included even house arrest with electronic monitoring.  A person ordered to spend time in a substance abuse treatment facility as a condition of probation under this procedure is not free to leave that facility--he or she is confined.  That confinement is imprisonment according to Matter of Cavillo Garcia.

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In Castro-Lopez the Board of Immigration Appeals held that an applicant for special rule cancellation of removal for NACARA must establish 10 years of continuous residence from the date of the most recently incurred ground of inadmissibility or deportability, rather than the first incurred ground. The Board reached this conclusion because it was the rule for suspension of deportation under the pre-1996 law and Congress intended NACARA special rule cancellation to approximate that law. So, Castro-Lopez was found ineligible for the relief because his most recently incurred ground of inadmissibility resulted from a 2012 controlled substance conviction.

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California theft is not aggravated felony theft per the Ninth Circuit's decision in Roberto Lopez Valencia. This is so because California's definition of theft at PC 484 encompasses more than the federal generic definition of theft and it is not divisible into separate crimes that do meet the federal definition.

Unlike the federal definition, California PC 484 applies to more than taking property without consent and with the intent to deprive the owner of the rights of ownership. PC 484 also covers theft of labor, false credit reporting, and theft by false pretenses. The Ninth Circuit has long recognized this, so it has permitted review of documents from the conviction record to determine if there is a match to the federal definition.

Lopez Valencia held that this was no longer permissible under the Supreme Court's decision in Descamps and the Ninth Circuit's subsequent decision in Rendon. Descamps held that a court may only review documents from the record of conviction to determine whether a conviction meets a federal definition if a statute of conviction contains multiple alternative elements, such that the statute really lists multiple different crimes. A statute is not divisible if it encompasses multiple alternative means of committing the same crime. How to distinguish between elements and means? Rendon held that elements require juror agreement, while means don't.

Under California law larceny, embezzlement, theft by false pretenses, false credit reporting, and theft of labor are all means of committing the unitary crime of theft. They are not separate alternative crimes. How do we know? Because the California Supreme Court has held that a prosecutor need not convincing a jury to agree on which type of theft a defendant committed in order to secure a conviction. The California law was written that way to make it easier for prosecutors to convict thieves. However, it also means that California theft can never meet the federal aggravated felony definition.

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Pointing a laser pointer at a cop is a crime, but it is not a base, vile, or depraved crime according to the Ninth Circuit's decision in Coquico v. Lynch.

ICE put John Coquico in removal proceedings, alleging that he was deportable for conviction of two crimes involving moral turpitude after admission: a 2007 conviction for robbery and a 2006 misdemeanor conviction for "unlawful laser activity" in violation of California Penal Code (PC) 417.26. He argued the PC 417.26 conviction did not involve moral turpitude.

PC 417.26 provides,

(a) Any person who aims or points a laser scope as defined in subdivision (b) of Section 417.25, or a laser pointer, as defined in subdivision (c) of that section, at a peace officer with the specific intent to cause the officer apprehension or fear of bodily harm and who knows or reasonably should know that the person at whom he or she is aiming or pointing is a peace officer, is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not exceeding six months.

The immigration judge found this crime to involve moral turpitude because she found it involved "possession of weapons which are insidious instruments normally used for criminal purposes.” The Board of Immigration Appeals agreed that the crime involved moral turpitude for the slightly different reason of "the crime is committed against a peace officer and the nature of the crime involves using a device which gives the appearance or facade of the use of a deadly weapon."

Really? Apparently the immigration judge and Board are unfamiliar with what exactly a laser pointer is. Helpfully, the California statute defines it as: "any hand held laser beam device or demonstration laser product." You know, like what they use to point on the projection screen at a dreary continuing legal education seminar. Or like the one that naughty kid was using to distract the speakers at the last PTA meeting I went to. Annoying yes, an insidious weapon normally used for criminal purposes no.

Fortunately, the Ninth Circuit also went with annoying rather than deadly. It noted that the statute does not have any requirement that the laser pointer appear deadly to a reasonable person. Nor does the statute require that the peace officer on the receiving end be in reasonable fear of bodily harm (much less experience any harm). In other words, all that PC 417.26 requires is that some knucklehead intend to cause the officer fear of harm, not that the officer have a reasonable basis to fear harm. The Ninth Circuit found that to be the critical point.

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Jose Reyes Ruiz-Vidal was not quite as lucky in his second published decision from the Ninth Circuit as he was in his first, Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007). In the second decision, the Ninth Circuit held that he was deportable for a conviction for California Health & Safety Code 11377(a). The case is significant because the court held that a charge originally filed against a defendant narrows a plea to a lesser included offense under the modified categorical approach.

In 2009, Jose Reyes Ruiz Vidal was charged in a felony information with sale of a controlled substance in violation of California Health & Safety Code (HS) 11379(a), "to wit: methamphetamine." He later pleaded no contest to HS 11377(a), simple possession of a controlled substance. The plea transcript and minute order for the hearing indicated that the plea to 11377(a) was as a lesser included offense to the 11379(a) charge, which had referenced methamphetamine.

The Ninth Circuit previously held in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) that HS 11377(a) is not categorically a controlled substance offense, since it covers at least one or two substances not covered by the federal Controlled Substances Act. However, it found the offense was divisible. That means a court can review certain record of conviction documents to determine if the conviction actually involved a federal controlled substance.

Methamphetamine is definitely a federal controlled substance, so the question in Ruiz-Vidal was whether the specification of meth in the sale charge meant that the lesser included plea to simple possession was also for meth. Judge Kozinski said yes, finding that the specification of a particular substance in the original charge meant that a lesser included plea must be to that same substance. That is common sense, although Judge Reinhardt's dissent demonstrates why it is not legally correct. Regardless, it is now the law of the Ninth Circuit, since the court denied en banc rehearing and the Supreme Court denied the cert petition. Criminal defense counsel beware.

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Maria Arce Fuentes v. Lynch held that the "circumstance-specific" approach applies to the money laundering aggravated felony definition at 8 USC 1101(a)(43)(D). That definition requires the amount of funds laundered to exceed $10,000, and the circumstance-specific approach allows a court to determine the amount of funds involved by looking to evidence outside the elements of the conviction. The Ninth Circuit held that evidence could include a pre-sentence report (PSR), but not alleged overt acts that were not necessary for the offense of conviction.

In this case, Maria Arce Fuentes was allegedly involved in a conspiracy in Puerto Rico to launder drug trafficking proceeds. She and other codefendants were indicted for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and 74 substantive counts of money laundering in violation of 18 U.S.C. § 1956(a). Ms. Arce Fuentes pleaded guilty to conspiracy and the substantive counts were dismissed. The PSR indicated that the prosecution and defense agreed that an eight-level increase to the offense level was appropriate because Ms. Arce Fuentes laundered more than $70,000.

The Ninth Circuit first confirmed that the circumstance-specific approach does apply when determining the amount of funds laundered for the aggravated felony definition at 8 USC 1101(a)(43)(D). The panel found this result compelled by the Supreme Court's decision regarding the similar aggravated felony definition at 8 U.S.C. § 1101(a)(43)(M)(i), which concerns a fraud or deceit offense where the loss to the victim exceeded $10,000. Thus, the agency did not err by looking to evidence beyond the elements of Ms. Arce Fuentes's conviction.

The Ninth Circuit held, however, that this did not extend to consideration of dismissed counts that were not incorporated into the offense of conviction. The immigration judge had found the conviction involved the laundering of funds in excess of $10,000 based on the indictment and the judgment. The conspiracy count that Ms. Arce Fuente was convicted of did not itself allege a loss amount in excess of $10,000, but cited other dismissed counts involving amounts exceeding $10,000. The conspiracy count cited these dismissed counts as overt acts, but this was apparently due to an error in the indictment. In Whitfield v. United States, 543 U.S. 209, 214 (2005), the Supreme Court held that money laundering conspiracy under 18 U.S.C. § 1956(h) does not require an overt act. So, alleging the overt acts was not necessary to the indictment. Since the acts were not necessary for the conviction, the Ninth held that a guilty plea to the conspiracy count did not incorporate them and they could not prove the amount of the funds involved.

Despite this error, the Ninth Circuit upheld the aggravated felony finding because the Board of Immigration Appeals also relied on the PSR. The PSR indicated the parties agreed that the amount of funds exceeded $70,000. No evidence contradicted the PSR, so the Ninth Circuit held it provided clear and convincing evidence to sustain the aggravated felony charge.

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In U.S. v. Francisco Salgado Martinez, a prosecution for illegal reentry after removal, the Ninth Circuit held that child molestation in the third degree under section 9A.44.089 of the Washington Revised Code is not an aggravated felony for sexual abuse of a minor. It held the offense failed both of the alternative tests for that definition.

Under the first test from the court's en banc decision in Estrada-Espinoza, a crime is an aggravated felony if it requires "(1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.” The court held that section 9A.44.089 failed this test because it does not necessarily involve a sexual act, since the Washington courts have found the crime occurred where a defendant rubbed and fondled the victim's thigh through clothing.

Under the second test from Medina-Villa, a crime is an aggravated felony if "(1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse....” The court held Washington 3rd degree child molestation does not necessarily involve "physical or psychological harm in light of the age of the victim in question." Although the court's reasoning on this point was not crystal clear, it appears to rest on the fact that the statute could apply to consensual contact with a teen between the ages of 14 and 16.

Since section 9A.44.089 of the Washington Revised Statutes lacks these elements entirely, the Ninth Circuit held that no conviction for that offense can meet the federal generic definition of aggravated felony sexual abuse of a minor. It therefore held the defendant here was not removable when removed and thus could not be prosecuted for illegal reentry after removal.

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