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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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The Board of Immigration Appeals held that administrative closure was appropriate in this case because the respondent's deportability turned on the outcome of a direct appeal of his conviction.  In reaching that decision, the Board applied the factors discussed in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (granting administrative closure based on government's unexplained delay in adjudicating a visa petition).

The Avetisyan factors include, but are not limited to:

(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.

The Board found these factors favored administrative closure in Montiel's case.  The only charge of removability was his for conviction alien smuggling, an aggravated felony, and the Board found it significant that this conviction followed a jury trial.  The Board also found it significant that Montiel was appealing his conviction, rather than merely the sentence imposed. Further, it implicitly found that Montiel's appeal was not frivolous because it noted that administrative closure to await the outcome of an appeal would not be appropriate where the appeal is facially frivolous.  Given those factors, the Board administratively closed Montiel's removal proceedings.

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The Board held that an adjustment of status by a respondent who entered the U.S. without inspection was an "admission" and the respondent therefore was deportable for conviction of an aggravated felony "after admission." It disagreed with and distinguished the precedent on 212(h) eligibility, where circuit courts have held an aggravated felony does not disqualify a permanent resident unless he or she was admitted to the U.S. as a permanent resident (not where he or she adjusted to permanent resident status). The Board found it would be absurd to interpret the statute to entirely exempt immigrants who adjusted status from the grounds of deportability, which only apply to persons in and admitted to the U.S.

The Board further found that a sentence enhancement specified in the Manual for Courts-Martial that must be pleaded and proved beyond a reasonable doubt is an "element" that may be examined under the categorical analysis for immigration purposes.

In this case, the Board held a sodomy sentence enhancement for sodomy committed "by force and without the consent of the other person" categorically satisfies the crime of violence aggravated felony definition (if the sentence is to one year or more). It found the conviction satisfied both subsection (a) and subsection (b) of 18 U.S.C. 16. It found it satisfied subsection (a) because it held the conviction had as an element the use, attempted use, or threatened use of physical force against the person or property of another. It also found the offense satisfied subsection (b) because sodomy by force, which requires physical force and lack of the victim’s consent for a conviction, by its nature involves a substantial risk that the perpetrator will resort to intentional physical force in the course of committing the crime.

Interestingly, in a portion of the decision not digested by the Board at the beginning of the case, the Board rejected without much analysis the respondent's argument that he did not receive a sentence to one year or more for any single one of his three sodomy convictions. Apparently, he received a sentence to 18 months on the three counts and it was not clear whether this was a single concurrent sentence (i.e., 18 months on each conviction with the period of imprisonment to run at the same time) or three consecutive sentences (say, three sentences to 6 months each). The Board characterized the sentence as a "general sentence" and cited a 66 year-old Board opinion to find it satisfied the crime of violence aggravated felony definition's requirement of a sentence to one year or more. Due to the paucity of the Board's analysis, though, it is hard to know whether the respondent's argument had any merit. This is unfortunate in a published decision.

Finally, the Board rejected respondent's claim to eligibility for a "stand alone" 212(h) waiver. It held 212(h) is not available unless the applicant is an arriving alien seeking to waive a charge of inadmissibility or an applicant to adjust (or readjust) status to permanent residence. See Matter of Rivas, 26 I&N Dec. 130,
132, 134 (BIA 2013).

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The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.

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Relief under former section 212(c) is unavailable for a permanent resident who has served a "term of imprisonment" of more than 5 years for conviction of an aggravated felony, but what if part of that was credited for time spent in civil psychiatric pre-trial confinement pending a determination of competence to stand trial? In an unpublished 1 member decision, the Board held that the entire 392 days that Corpuz spent in that civil confinement does count, which pushed him over 5 years.

The Ninth Circuit disagreed. It found that the common meaning of imprisonment does not include civil confinement, but it declined to entirely disregard Corpuz's time in civil psychiatric confinement because Corpuz did receive credit from the sentencing judge for that time. The court found that counting all of it, though, would be unfair because there is no credit for good conduct and the confinement can last a long time compared to typical pre-trial confinement. The court thus attempted to achieve what it determined was the statutory purpose by holding that the immigration judge should determine how long the confinement would have been if there was good time credit. It called this constructive good time credit.

Something tells me there will be a petition for rehearing in this case, although grant of en banc rehearing seems unlikely given Corpuz's situation would seem to be rare and there is no conflicting precedent.

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The Board held that a conviction by a municipal court in Wichita, Kansas, for a violation of a municipal controlled substance ordinance is a conviction for immigration purposes because the proceedings were "genuine criminal proceedings." The respondent was fined and jailed for possession of marijuana in a municipal court. He later was convicted in a state court of a felony for possession of marijuana with a prior municipal court conviction. ICE then initiated removal proceedings, alleging removability for a controlled substance offense and for an aggravated felony. It alleged his possession with a prior conviction was an aggravated felony.

The respondent raised several arguments to attack the validity of the underlying municipal court judgment. The Board rejected the respondent's first argument that the municipal court proceedings were not genuine because there was no absolute right to counsel. Witchita apparently provides a right to appointed counsel only in municipal court cases where there is a possibility of incarceration, but not otherwise. The Board found this was consistent with the constitutional right to counsel for indigent persons, so it did not agree that the proceedings were not genuine. (It is unclear whether he actually had counsel or not, but he would appear to have the right to it because he received a sentence to incarceration for the municipal conviction.)

The respondent further argued that his lack of counsel (or advisement by the judge) deprived him of information about the potentially serious immigration consequences of his municipal court plea. The Board treated that as a collateral attack against the judgment, rather than as an argument that the proceedings were not genuine. As such the Board held that the respondent needed to make the argument to the criminal court, not to the Board. (Again, this argument is curious since he apparently did have a right to counsel.)

The respondent also argued that convictions in the Witchita municipal courts were not genuine because there is no right to jury trial on the charges. However, there is a right to trial de novo before a jury in a state district court if the municipal court finds the defendant guilty. The Board found this right to request a new trial if the defendant is dissatisfied is enough.

Additionally, unlike the Oregon procedures in Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004), Witchita municipal proceedings require the prosecutor to prove the offense beyond a reasonable doubt. The proceedings thus were genuine by that measure as well.

The impact of this case goes far beyond Witchita convictions, though. The reasoning behind it strongly indicates that California infractions will be considered convictions for immigration purposes as well. There had been some hope that Eslamizar signaled an intent to not treat infractions as convictions, particularly since in California there is no right to appointed counsel for them. Cuellar-Gomez dispels that hope. Further, California requires proof beyond a reasonable doubt for infraction convictions, so that argument from Eslamizar does not apply either.

The respondent in Cuellar-Gomez also argued that his municipal conviction could not support ICE's charge of removability under section 237(a)(2)(B)(i) for being "convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance." He was convicted under a municipal ordinance, not any law or regulation of a State. The Board rejected that argument because a municipality is a creature of the state, so its laws are laws of the state.

Finally, the Board held that Cuellar-Gomez's conviction was an aggravated felony because it corresponds to a federal felony under the Controlled Substances Act for recidivist possession, 21 U.S.C. § 844(a). As required for a federal recidivism felony, the prior conviction was final and respondent received advance notice of the enhancement for having a prior conviction.

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With seven judges dissenting, the Ninth Circuit voted not to re-hear en banc the panel decision in Planes v. Holder (discussed in my previous blog post). Thus, the rule in the Ninth Circuit is that a noncitizen may be removed from the U.S. if found guilty of a crime even if the conviction is not final because there is a pending direct appeal as of right. And if the noncitizen wins his or her appeal of the criminal conviction after removal? The only apparent option is for the noncitizen, now outside of the U.S., to attempt to request discretionary reopening of the removal order, which the Board of Immigration Appeals may deny (and has denied in some cases).

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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.

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