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Author: Scott Mossman

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In this opinion, the Ninth Circuit explains the evidentiary standard for inadmissibility under INA § 212(a)(2)(C) for being an alien who the consular officer or the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the same. The question is who must have the necessary “reason to believe” and at what time.

The court held that the reason to believe must be collectively known by the officials adjudicating the question of admissibility. At the time of entry, that would be the CBP inspector and any other appropriate officials within one of the DHS agencies. If the inspector does not admit the noncitizen and instead puts him or her into removal proceedings for inadmissibility, then the immigration judge (or BIA, once on appeal) is the official that must have reason to believe. In the latter situation, the IJ and BIA are not limited to the facts known at the time the noncitizen's inspection at the port of entry. Later obtained evidence, the respondent's testimony, and even expert testimony may be considered. The court then will review the decision of the IJ and the BIA for substantial evidence.

The court also found that, although the credibility of the noncitizen was important, it did not need to deem the testimony credible in the absence of an explicit adverse credibility finding.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/06-70635.pdf

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Today, July 14, 2011, is a dark day for immigration law in the Ninth Circuit. The en banc court overruled Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and held that state rehabilitative relief for a single conviction for possession of a controlled substance does not protect against immigration consequences. Attorneys who watched the brutal oral argument in this case (the video is available on the court's website) anticipated this outcome, but at least it came with a small consolation prize.

The Ninth Circuit held that its decision in Nunez-Reyes would have only prospective effect, citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) as authority for prospective application. Since the decision applies prospectively, Lujan-Armendariz continues to protect noncitizens "convicted" of simple possession before Nunez-Reyes's publication date of July 14, 2011. For noncitizens convicted after that date, Lujan-Armendariz is overruled. (The Court did not address whether noncitizens convicted "on" the publication date would continue to benefit from Lujan.)

Significantly, the language of Nunez-Reyes strongly supports the idea that the critical fact is whether the noncitizen pled guilty or no contest before the publication date. Persons who pled before today gave up their constitutional rights (to trial by jury, to confront witnesses, etc.) in reliance on Lujan-Armendariz, so they should not be "hoodwinked" into being deported for doing so. Whether they actually completed the requirements for rehabilitative relief before today, however, would seem to be irrelevant. Thus, expungements and other rehabilitative relief obtained after today should still be effective, so long as the plea occurred before today. The court did not explicitly say this, but the reasoning implies it.

Nunez-Reyes also overruled the court's recent decision in Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), and held that state rehabilitative relief did not protect against immigration consequences for a conviction of being under the influence of a controlled substance. Unlike Lujan, though, the court overruled Rice retroactively because it was such a recent decision that there was less reliance on it. It also distinguished being under the influence from possession, holding that the former was not a lesser offense (even though in California the former is a misdemeanor and the latter can be a felony). The court reasoned that dangerous behavior might accompany being under the influence of methamphetamine, but would not necessarily accompany simple possession. In short, though, rehabilitative relief does not protect against removal for being under the influence of a controlled substance, even if the plea occurred before today.

Nunez-Reyes does suggest, though, that possession of paraphernalia IS a lesser offense to possession (at least where the defendant pleads down from possession to paraphernalia). So, noncitizens would continue to benefit from Lujan if the paraphernalia plea occurred before today.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf

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The Ninth Circuit addressed the statutory definition of a "conviction" for immigration purposes and held that it includes a formal judgment of guilt entered by a court, even if the case is still on direct appeal or if sentencing is not final. The court justified this departure from a long line of precedent, including a Supreme Court memorandum decision, based on IIRAIRA's creation in 1996 of a statutory definition of "conviction." The Ninth held that the plain language of the statute mandated its holding.

I invite my readers to suggest arguments on why this holding might be wrong.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/07-70730.pdf

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The Board held that recklessness is a sufficiently culpable level of scienter for a crime to involve moral turpitude, at least where it involves an intentional act done with unreasonable disregard of risk to life or property. In this case, the offense was driving a vehicle in a manner indicating a wanton or willful (i.e., reckless) disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of section 46.61.024 of the Revised Code of Washington (1997). The Board rejected the respondent's argument that reckless disregard of the danger to property would not involve moral turpitude and held that the offense categorically was a CMT.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3720.pdf

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"Clarifying" its previous opinion in Cheuk Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010), the Ninth Circuit held that a noncitizen's admissions in removal proceedings could establish the link between the offense alleged in a charging document and an abstract of judgment for purposes of determining whether the conviction was for a removable offense.

S-Yong had held that admissions alone were not sufficient to meet the government's burden of proving removability (the record did not contain any conviction documents in that case). The government in Pagayon, however, did present a charging document alleging possession of methamphetamine and an abstract of judgment that indicated conviction of Health and Safety Code sec. 11377(a) for possession of an unspecified drug.

The Ninth Circuit held that Pagayon's response that possession of methamphetamine was his conviction met the government's burden of establishing that the conviction was for a deportable controlled substance offense. (Not all drug convictions involve substances that trigger deportability under federal law.)

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/24/07-74047.pdf

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The Ninth Circuit held here that a conviction for California Penal Code § 12025(a) categorically qualifies as a deportable firearms offense under INA 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

Section 12025(a) penalizes offenses related to carrying a concealed firearm upon the person or in a vehicle or causing a weapon to be concealed in a vehicle. The state courts have interpreted this broadly, holding, “[I]t is theoretically possible for a person to cause to be concealed a firearm that is not in his or her possession, custody, or control, such as by conduct that conceals from view a firearm that is in the possession and control of another person.” People v. Padilla, 98 Cal. App. 4th 127, 138 (2002).

The Ninth Circuit held that even this constructive possession, however, amounted to unlawful "possession" of a firearm for purposes of the grounds of deportability. The court noted the laundry list of offenses covered by the firearms deportability statute and opined that it evidenced a congressional intent to construe possession broadly. Judge Rymer dissented from this holding.

The court also addressed the antique firearms exception to the deportability statute, since California law does not contain the same exception. It held that the antique firearms exception is an affirmative defense, which need not be considered under the categorical analysis--at least where the noncitizen does not assert that it applies.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-74371.pdf

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Typically, I blog about only immigration opinions that relate to criminal convictions, but I had to address this recent decision on the so-called "permanent bar."

The Ninth Circuit held that the noncitizen was inadmissible under INA 212(a)(9)(C)(i)(I) because she reentered the U.S. without admission after a prior period of unlawful presence of more than a year. It said the unlawful presence accrued between 1981 and 1983. The only problem with that finding is that periods of time before April 1, 1997, do not count as "unlawful presence" for purposes of section 212(a)(9)(C)(i)(I), at least according to USCIS. See Adjudicator's Field Manual, 40.9.2(a)(9)(a).

USCIS's interpretation is well founded given the law that created section 212(a)(9)(C)(i)(I) provided for a general effective date of April 1, 1997, and did not specify a different effective date for that particular provision. See IIRAIRA sec. 301(b), 309(a). Indeed, the statutory term "unlawful presence" did not exist in 1981, 1983, or any other time before the enactment of IIRAIRA.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/09-72059.pdf.

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The Board held that a conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for telephoning a person protected by the order constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.

Section 237(a)(2)(E)(ii) provides that an alien admitted to the U.S. who violates "the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable."

The Board concluded that contacting the subject of a protection order by telephone made the respondent deportable even if the call did not involve threats or repeated harassment. It reasoned that the no-contact portion of a protection order (as opposed to portions concerning attending counseling or paying costs) involved protection from credible threats, repeated harassment, or bodily injury because a court would only issue it if there had been past abuse or threats and the no-contact order protects the victim from being victimized again.

In reaching that conclusion, the Board did not discuss the potential significance of the fact that the case involved a temporary protection order, which typically is issued before the court determines if credible threats of violence, repeated harassment, or bodily injury actually had occurred.  Indeed, the telephone call in this case occurred twenty days before the hearing on the restraining order.  The temporary restraining order thus apparently was based only on the woman's unproven allegations.

The Board's construction gives no effect to the statutory language that seems to require a determination that the threats, repeated harassment, or bodily injury had occurred and that any threats were credible.  A better construction would require, at least in the case of unproven ex parte temporary restraining orders, that the immigration judge actually find that the violation did involve such conduct.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3714.pdf.

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