The Board of Immigration Appeals held that INA § 101(a)(13)(C)(v) only exempts returning permanent residents with an inadmissible conviction from being considered to be seeking admission after travel abroad. It does not prevent the conviction from making the noncitizen inadmissible to re-adjust status to permanent residence if the noncitizen is later put in removal proceedings on another basis and needs to qualify for relief from removal.
Category: BIA
Matter of Alfredo Diaz-Garcia
In this case, the government unlawfully removed the respondent before the removal order was administratively final, i.e., while the case was on direct appeal to the Board. The regulations provide that a removal order shall not be executed during the period for filing an appeal to the Board (unless appeal is waived) or while the appeal is pending. The regulations also provide that the departure of a respondent from the U.S. while a direct appeal is pending constitutes a withdrawal of the appeal. 8 C.F.R. § 1003.4. DHS argued that even its removal of the respondent "in error" is a departure that strips the Board of jurisdiction over the appeal. The Board rejected that argument and found, "Fundamental fairness dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien’s appeal."
On the merits of the appeal, the Board held that a conviction for being an "accomplice" to an aggravated felony offense makes an alien removable for an aggravated felony if the conviction is for aiding and abetting the principal offender. The respondent in this case was convicted under an Arkansas statute that defined accomplice more broadly to include "a person who (1) solicits another to commit an offense, (2) aids another in the commission of the offense, or (3) fails to prevent the commission of the offense, so the Board held it was not categorically an aggravated felony. The reviewable record of conviction, however, made it clear the respondent assisted the principal at the scene of the crime. The conviction thus satisfied the modified categorical analysis.
Matter of E.W. Rodriguez
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.
M-W-
The Board held that a second degree murder conviction under a Michigan statute that did not require intent to kill is categorically an aggravated felony "murder" conviction, 8 USC 1101(a)(43)(A). The noncitizen killed two persons in an automobile collision where he was driving under the influence of alcohol. He pled no contest to second degree murder in violation of section 750.317 of the Michigan Compiled Laws.
The Board first found that 8 USC 1101(a)(43)(A) defines murder in the generic sense, so it looked to the law of the majority of states and to the federal definition of murder. It determined these defined murder to include "depraved heart" murder where there was no specific intent to kill, but there was extremely reckless conduct carrying a high likelihood of death or serious bodily injury. The Michigan conviction here was that type of murder, so the Board found it fit the aggravated felony definition.
The Board disregarded the Supreme Court's decision in Leocal because that case concerned whether DUI was a crime of violence, which is a separate aggravated felony offense.
Matter of Roderick B. Lanferman
The Second Circuit remanded the removal order in Lanferman to the Board for an opinion on whether (A) a criminal offense must have discrete subsections or clauses to be divisible (thus triggering the modified categorical approach to determining removability or ineligibility for relief from removal) or (B) a criminal offense is divisible regardless of the structure if--based on the elements of the offense--some but not all violations give rise to removability or ineligibility for relief. The Board held that the second broader approach applied.
The decision is entirely academic, though, because the New York menacing statute at issue, N.Y. Penal Law § 120.14(1), is divisible under either approach as to whether it is a deportable firearms offense pursuant to INA 237(a)(2)(C). Section 120.14(1) provides that a person is guilty of menacing if he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying any one of a series of deadly weapons or instruments, including but not limited to firearms. Since the various weapons are specifically identified in the statute and separated by commas, the offense has discrete clauses that would seem to satisfy the narrower approach. It thus is unclear why the Second Circuit thought a remand was necessary.
Most significant for those of us practicing in the Ninth Circuit is the Board's vague and contradictory endorsement of the Ninth's decision in Aguila Montes de Oca. Lanferman's holding clearly requires that divisibility be determined "based on the elements of the offense." However, the Board also cites Aguila's "necessarily found" analysis to support its holding. The "necessarily found" analysis permits the immigration authorities to use non-elements in determining removability under the modified categorical approach. Thus, per Aguila, a menacing statute that did not have use of a firearm as an element would still constitute a removable offense if a firearm necessarily was used to commit the menacing. If the Board wanted to endorse this approach, though, why does it seem to consciously use the term "element" throughout the Lanferman opinion?? I welcome your thoughts.
Matter of Wilmer Rodrigo Castro Rodriguez
The Board confirmed that distribution of a small amount of marijuana for no remuneration is not an aggravated felony, placed the burden of proving that on the respondent, and held the parties may resort to evidence outside the record of conviction to prove whether the amount is "small" and whether the distribution was gratuitous.
A state conviction is an aggravated felony under INA 101(a)(43)(B) for drug trafficking if it would be punishable as a felony under the federal Controlled Substances Act (CSA). Distribution of marijuana is a felony under the CSA, except where the defendant proves as an affirmative defense it involved a “small amount of marihuana for no remuneration,” in which case it is a federal misdemeanor. 21 U.S.C. § 841(b)(4). In states where the penal statute does not provide a similar defense, the Board held an alien put in removal proceedings on the basis of a marijuana distribution conviction can prove the exception to avoid the aggravated felony definition.
The Board also clarified procedural aspects of the exception. It held the exception is of a "'circumstance-specific' nature," so the parties can use evidence outside the record of conviction to prove or rebut the requirements for the exception. Further, the Board put the burden on the respondent to prove by a preponderance of the evidence the applicability of the exception since it is an affirmative defense under the criminal statute.
The Board declined, however, to set a bright line rule on what amount of marijuana should be considered "small." It recognized that a useful guidepost was the exception from deportability for a single offense of simple possession for personal use of 30 grams or less of marijuana. It found, however, that amounts of less than 30 grams would not be considered small in some situations, such as in a prison.
Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3741.pdf.
Matter of J.R. Velasquez
The Board held that mere submission of a conviction document by DHS is not enough to establish its admissibility, at least where the respondent denies the alleged conviction. The government must provide some form of authentication, and it must be sufficiently reliable to comport with due process. The Board held that 8 C.F.R. § 1003.41(a), (b), and (c) establish safe harbors for conviction documents that are originals, certified copies, and electronic records certified in writing by both the state repository and DHS, but it also held that those were not the only admissible conviction documents.
In this case, DHS submitted an electronic conviction record that was not certified by either the court that generated it or by the DHS officer who received it. Nor was there any attempt to authenticate it in any other way. The Board therefore found that the document was not admissible and remanded for further factfinding.
Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3739.pdf.
Matter of U. Singh
Disagreeing with the Ninth Circuit's decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th 2007), the BIA held in this Fourth Circuit case that a conviction for harassing conduct in violation of California Penal Code § 646.9 is categorically a crime of violence under 18 U.S.C. § 16(b) (thus making it an aggravated felony with a sentence to 365 days or more). The Board therefore reaffirmed its decision in Matter of Malta, 23 I&N Dec. 656
(BIA 2004) in jurisdictions other than the Ninth Circuit. The decision is weak, however, because it fails to meaningfully address the primary rationale for Malta-Espinoza.
The primary rationale for finding that PC § 646.9 is not categorically a crime of violence is that it can be committed by long-distance harassment. Malta-Espinoza cited published California cases where the convictions were for sending letters and pictures through the mail. However, a crime of violence under § 16(b) requires "a substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense." How could violent physical force be used in the course of mailing a letter?
The Board's cursory answer is that sometimes a violent physical encounter follows long-distance harassment. It cites statistics to back up this assertion. I have no doubt that sometimes violence follows long-distance harassment, but that is beside the point. Under well-established California law, the offense would be complete upon the mailing of the harassing letters (even if the sender was incarcerated and even if the recipient is out of the country). That is an offense, and the sender could be immediately prosecuted for it. And, of course, there is no way that sending a letter in-and-of itself carries a substantial risk that violent physical force could be used in committing THAT offense. PC § 646.9 thus does not categorically involve a substantial risk that violent physical force will be used.
If the sender of a harassing letter later shows up at the victim's doorstep to engage in more harassment (as in the example cited by the BIA), then that is a separate offense that likely would involve a substantial risk of the use of violent physical force to commit the offense. But that does not categorically establish that all PC § 646.9 convictions involve conduct that carries a substantial risk of violent physical force. Some may, some clearly would not, which is why the Board should have resorted to the modified categorical approach to determine if the offense underlying this particular conviction involved a substantial risk.
The Fourth Circuit may have a chance to review the Board's decision. Hopefully, it will engage in a more careful analysis. The consequences of the decision are severe. Since it determined the conviction was an aggravated felony, the Board found the respondent ineligible for relief from removal. He thus will lose his green card and be removed and probably will never be able to return to the U.S. All without review of the record of conviction to determine the actual conduct that he pled guilty to.
Finally, note that this decision, and the Malta decision that preceded it, concern only "harassing" conduct in violation of PC § 646.9. The statute also penalizes "following," which neither decision addressed. Given the rationale of this decision, however, it is hard to see how following--even from a great distance--would not be found to be a crime of violence.
Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3738.pdf.
Matter of R-A-M-
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.
Matter of Saiful Islam
In Matter of Islam, the Board adhered to its previous decision in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), interpreting the ground of deportability for conviction of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct.
The Board held that the respondent's convictions in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards at several retail outlets on five separate occasions over the course of a day did not arise out of a “single scheme of criminal misconduct.” Although all of the crimes occurred on a single day and all followed a similar modus oparandi, this was not enough under Adetiba's rule.
Under Adetiba, Board held that a single scheme "refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct. The related question is whether there is enough time after each crime for the person to reflect on it and disassociate from the criminal activity.
In deciding to follow Adetiba, the Board declined to apply the more expansive interpretation of the Second Circuit even within that circuit, citing its authority to interpret ambiguous statutory phrases despite previous federal court authority to the contrary. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3733.pdf.