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Category: Due Process / Procedures

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In this case arising from the Commonwealth of the Northern Mariana Islands (CNMI), the Ninth Circuit held that Etumai Felix Mtoched's 1994 conviction for assault with a deadly weapon in violation of 6 N. Mar. I. Code § 1204(a) was a deportable crime involving moral turpitude. It further found that ground of deportability could retroactively apply to Mr. Mtoched even though he was convicted of the offense before the Immigration and Nationality Act (INA) took effect in CNMI. Finally, it held that Mr. Mtoched could not apply for a 212(h) waiver of inadmissibility because he was already in the U.S. and was not eligible to adjust status.

Concerning the first question of whether Mr. Mtoched's assault with a deadly weapon conviction was a crime involving moral turpitude (CIMT), the panel found the statute of conviction was "divisible into three distinct subparts, all involving bodily injury to another person with a dangerous weapon: (1) threaten to cause, (2) attempt to cause, or (3) purposely cause." In reaching this conclusion, however, the panel appears to have assumed divisibility from the text of the statute. Its opinion failed to address prior precedent that holds an offense is divisible only if a jury must unanimously agree on which of multiple alternative elements a defendant committed. See Rendon v. Holder. The Mtoched panel simply ignored that precedent even though the Ninth Circuit had declined to rehear Rendon en banc more than a month earlier.

The panel also held that the CIMT ground of deportability could be applied to Mr. Mtoched even though he was admitted to CNMI, the crime was committed, and he was convicted before the U.S. immigration laws applied to CNMI. As the government agreed, Congress was not explicit in applying the INA to CNMI retroactively. The court therefore considered whether applying the change to Mr. Mtoched "would impair rights [he] possessed when he acted, increase [his] liability for past conduct, or impose new duties with respect to transactions already completed." It determined that Mr. Mtoched's conviction made him deportable under the law that existed in CNMI prior to the INA, and the change also did not make him ineligible for any form of discretionary relief that he was previously eligible for. Both before and after the change, his only hope to remain in CNMI was an exercise of prosecutorial discretion. The fact that the CNMI Attorney General did not move to deport him and the federal government did does not make the change in law retroactive.

At the end of the decision, the panel held, as the Board of Immigration Appeals did, that Tmoched was not eligible for 212(h) because he was present in the U.S. and was not eligible to adjust status. It added a cryptic note saying that he was not eligible to adjust status because he was present in the U.S. as "a citizen of Palau who may enter the United States as a non-immigrant under the section 141 of the Compact of Free Association with the Republic of Palau." It is true that persons admitted without a visa, which is apparently how Mr. Tmoched was admitted, are ineligible to adjust--unless they are eligible for adjustment of status as an immediate relative (spouse or minor child under 21 of U.S. citizen, or parent of U.S. citizen 21 years of age or older). Thus, the real problem appears to be that Mr. Tmoched did not have one of those relationships.

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In Matter of Alcibiades Antonio Pena, the Board of Immigration Appeals held that a permanent resident returning to the United States may not be charged with being an inadmissible arriving alien unless one of the exceptions at INA 101(a)(13)(C) apply--even if the government alleges the permanent resident was not eligible for his status at the time he received it.

Customs and Border Protection treated Alcibiades Antonio Pena, a foreign national admitted to lawful permanent resident status, as an arriving alien and charged him with inadmissibility for misrepresentation, false claim of U.S. citizenship, and no valid admission document. It charged him with these grounds based on an investigation by the U.S. Department of State that occurred prior to his receipt of permanent resident status (and that was known by USCIS when it granted him permanent resident status). Essentially, CBP alleged that Mr. Pena was inadmissible because he was not eligible to obtain permanent resident status--it disagreed with USCIS's decision to grant the application. (Unfortunately, CBP far too often attempts to interpret the documents in a resident's A-file to see if USCIS made a mistake. It can be hard to defend against these post hoc reviews if USCIS does not fully document the basis for the decision in the A-file.)

The Board held that charging Mr. Pena with inadmissibility was not proper. A foreign national may be charged with a ground of inadmissibility only if one of the 101(a)(13)(C) exceptions apply, which include permanent residents who: have abandoned or relinquished that status, been absent from the U.S. for a continuous period of more than 180 days, engaged in illegal activity after departing the U.S., departed while under removal or extradition proceedings, committed an inadmissible criminal offense, or who is attempting to enter (or has entered) without inspection and admission. None of these exceptions apply to Mr. Pena's scenario. Therefore, the government instead should have admitted him to the U.S. It could, however, then charge him with deportability for not being admissible at the time of admission to lawful permanent resident status.

Note that the difference between a charge of inadmissibility and a charge of deportability is important, since an arriving alien charged with inadmissibility is not eligible to obtain an immigration judge's review of a bond decision. A permanent resident treated as an arriving alien also is not eligible to apply for readjustment of status before the immigration judge, and instead would have to make that application to USCIS without the benefit of appellate review. There also is the open question, so far as the Board is concerned, as to which party bears the burden of proof if the returning resident is (properly) charged with inadmissibility. Must the government prove inadmissibility or must the returning resident prove he is not inadmissible? On the other hand, for a charge of deportability (as the Board held applies to Mr. Pena) the government always bears the burden of proof. The determination of who carries the burden of proof often determines who will win the case, so Pena is a very important decision.

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The California Department of Justice, Division of Law Enforcement, has issued a bulletin on the responsibilities of local jurisdictions under the TRUST Act and potential liability for detaining a person pursuant to an ICE request. Read my previous blog post for more on the TRUST Act. As for liability, the bulletin notes a district court in Oregon found detainers are voluntary requests, and thus a jail may be held financially liable if it turns out there was no probable cause for the detention. This is a worrisome prospect because ICE often issues detainer requests on scant evidence and in the past has even issued detainers against U.S. citizens.

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The Alameda County Sheriff's Office is no longer honoring ICE detainer requests, period. The development likely has a lot to do with the court decisions that have held a local jail could be legally and financially responsible for an erroneous hold, not to mention the fact ICE does not even compensate the county for the expense of holding the person in custody for an additional day or two.

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The San Mateo County Sheriff's Office has revised its ICE hold policy to not honor ICE detainer requests except "in cases of individuals who pose significant public safety concerns, which would require case by case approval from the Sheriff's Executive staff." These should be a "rare exception."

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The Ninth Circuit assumed without deciding that a grant of temporary resident status pursuant to the legalization provision at INA 245A amounted to an "admission." It held, however, that a termination of the temporary resident status (in this case for convictions) returns an alien to the unlawful status held before the grant of temporary resident status. 8 C.F.R. § 245a.2(u)(4). In this case, Hernandez-Arias previously held the status of an alien present without admission or parole. The court held the termination thus returned him to an unadmitted status, which made him vulnerable to removal for being present without admission or parole.

The court rejected Hernandez-Arias' argument that this return to an unadmitted status would result in a "rescission," which the regulations say is not required for termination of status and which did not occur in his case. The court distinguished a rescission from a termination. Using divorce and annulment as a comparison, it held rescission would result in him never having had temporary resident status and deprive him of any benefits of having had that status. Termination simply ends the status and returns him to the status he had before.

As an alien not admitted or paroled (and apparently not eligible for 245(i) adjustment), the court held Hernandez-Arias was not eligible for a 212(h) waiver of inadmissibility for his criminal convictions. It held he therefore was not prejudiced by the failure of the immigration judge in the removal proceedings to advise him of potential eligibility for 212(h). It therefore upheld his conviction in this case for illegal reentry after removal.

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Scott Mossman will present an MCLE on the California Trust Act, AB-4, on April 2, 2014, from 4:00 pm to 5:30 pm in Oakland.

The Trust Act went into effect on January 1, 2014, and prohibits California law enforcement from honoring ICE detainer requests except under certain circumstances. The seminar will review this new legislation and compare it with the more protective ordinances and policies in place in some Bay Area counties. Our focus will be on the strategic use of the Trust Act and local ordinances to prevent transfer of removable noncitizen clients from local jail custody to ICE custody. In some cases this is possible even if the client has to take a felony conviction.

The Law Office of Scott A. Mossman has applied to the State Bar of California for certification of 1.5 MCLE credits for this in-person seminar. The event is open only to criminal defense attorneys, public defenders, and immigration attorneys. There is a $30 fee for registration, but it is waived for attorneys who previously have consulted with Scott Mossman.

Call Susana Figueroa at (510) 835-1115 to RSVP no later than March 31.

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Assembly Bill 4, the Trust Act, took effect in California on January 1, 2014. The law represents a substantial change in how California law enforcement agencies must respond to a request by Immigration and Customs Enforcement (ICE) to hold a person suspected of being removable for an immigration violation.

In the past few years, ICE has initiated record numbers of removal cases against noncitizens--to the point where the immigration courts cannot keep up. It has done this by using the new Secure Communities program (S-Comm) to flag persons detained even briefly in a city or county jail and to request that they be held so that ICE can initiate an immigration enforcement action. With few exceptions, local law enforcement has complied with these so-called immigration holds--even when the person detained is not actually charged with a criminal offense or the criminal offense is relatively minor. That should change in California with the enactment of the Trust Act.

Under the Trust Act, law enforcement officials cannot comply with a request for an immigration hold unless the subject meets certain criteria. Further, even if a subject meets those criteria, the law enforcement official has discretion as to whether to comply with the hold.

A law enforcement official would be permitted to comply with an immigration hold if the subject meets any of the criteria found at section 7282.5 of the Government Code, which include:

    1. The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code.

 

    1. The individual has been convicted of any felony punishable by imprisonment in the state prison (not a PC 1170(h) offense).

 

    1. The individual has been convicted of an offense specified under the Trust Act. This includes certain felonies and certain misdemeanor wobblers (i.e., offenses punishable as either a misdemeanor or felony). For misdemeanor wobblers, the conviction must have occurred within the last 5 years. The list of specified offenses includes most crimes involving violence, sexual abuse, child abuse, burglary, theft, and weapons, as well as gang-related offenses, registerable sex offenses, and offenses involving personal use of a firearm, death, or great bodily injury, and certain others. Notably, DUIs and controlled substance offenses must be felonies to permit a hold.

 

    1. The individual is a current registrant on the California Sex and Arson Registry.

 

    1. A magistrate has found probable cause pursuant to PC 872 for a serious or violent felony, a felony punishable by imprisonment in the state prison, or a felony that is wobbler on the above list (excluding domestic violence).

 

    1. The individual has a federal conviction that meets the definition of an aggravated felony in subparagraphs (A) through (P) of 8 U.S.C. 1101(a)(43), which for unknown reasons omits subparagraphs (Q) through (U) (failure to appear for a felony, bribery, counterfeiting, forgery, obstruction of justice, perjury, and attempt and conspiracy convictions).

 

  1. The individual is the subject of an outstanding federal felony arrest warrant (most current immigration holds are for alleged civil immigration violations, not warrants for felony criminal charges).

Although this list is much longer than the previously-introduced version of the Trust Act, the important thing to note is that it requires an actual conviction or, for certain felonies, a finding of probable cause. This remedies two of the biggest problems that previously existed: (1) undocumented persons being ineligible for bail while they contest the charges, and (2) transfer to ICE even if the prosecutor declines to file charges or the noncitizen prevails in the criminal proceedings.

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The Board of Immigration Appeals held that a conviction for 18 U.S.C. § 1001(a)(2) (2002), making a materially false, fictitious, or fraudulent statement or representation to a government official (here to obtain a U.S. passport) is a crime involving moral turpitude (CIMT). It distinguished earlier decisions that found this was not necessarily the case because the earlier version of the statute did not always require materiality. The current version does. The Board therefore upheld the finding that the noncitizen was ineligible for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) due to having a felony CIMT.

The Board also reaffirmed that entry on a false claim to U.S. citizenship is not an inspection and admission for purposes of the INA and denied voluntary departure in the exercise of discretion.

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