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: Jurisdiction
Manuel Vilchez v. Holder
The Ninth Circuit held that conducting an individual hearing on the merits of a cancellation of removal application by videoconferencing does not necessarily violate the constitutional right to due process or the statutory right to a fair hearing. It might, though, depending on the circumstances of a particular case. The court focused on the constitutional due process right without addressing the statutory right under 8 U.S.C. § 1229a(b)(4)(B).
The court held that whether a particular hearing by videoconferencing violates due process depends on the degree of interference caused by the technology and the degree of prejudice that resulted. It found the noncitizen in this case failed to establish that the use of videoconferencing may have affected the outcome.
For a review of the potential arguments against the use of videoconferencing, read the American Immigration Council's advisory at http://www.legalactioncenter.org/sites/default/files/docs/lac/lac_pa_121203.pdf. The memo was last updated in 2003, but it still has useful suggestions.
Michael Angelo Samonte Planes v. Holder, En Banc Order
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).
Holder v. Carlos Martinez Gutierrez
In a unanimous decision, the Supreme Court found the Board reasonably interpreted INA 240A(a) cancellation of removal to require that the respondent personally satisfy the requirements of 7 years of lawful residence and 5 years of permanent resident status. Since this was a reasonable interpretation of a statute that the Board is charged with administering, the Court overruled the Ninth Circuit's contrary interpretation--which imputed a parent's period of lawful residence or permanent resident status to his or her child. Cuevas-Gaspar v. Gonzales, 430 F. 3d 1013 (9th Cir. 2005) and Mercado-Zazueta v. Holder, 580 F. 3d 1102 (9th Cir. 2009) thus are no longer good law.
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.
Marco Antonio Robles-Urrea v. Holder
The Ninth Circuit rejected the Board of Immigration Appeals' published opinion in this case, Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006), and held that misprision of a felony in violation of 18 U.S.C. § 4 is not categorically a crime involving moral turpitude. The Ninth Circuit found the Board's analysis was conclusory and flawed, so it did not defer to the Board's decision.
Misprision of a felony requires knowledge of the commission of a felony and concealment of that felony and not making it known to the authorities. The Board found this was a crime involving moral turpitude (CIMT), but the Ninth held it failed to meaningfully address one of the key requirements for a CIMT: that the offense be inherently base, vile, or depraved.
The Ninth Circuit held the fact that misprision requires concealment does not satisfy the requirement of baseness, vileness, or depravity. This is the case because misprision does not require the specific intent to conceal or obstruct justice. It is enough to know of the crime and do something that conceals it--even if concealment of the crime is not intended.
Although the Ninth Circuit held that misprision does not categorically involve moral turpitude, it also held that it could involve it in some cases. Thus, the Ninth Circuit remanded for the Board to determine in the first instance whether Robles-Urrea's conviction necessarily rested on facts that involved moral turpitude.
The most interesting thing about the remand, though, is that by indicating that the Board would have to look only to the narrow set of documents that form the record of conviction, the Ninth implicitly rejected the third step of Matter of Silva-Trevino, which authorizes inquiry beyond the record of conviction. This is a surprisingly beneficial application of Aguila Montes de Oca.
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.
Khalil-Salim Arbid v. Holder
The Ninth Circuit held that the decision as to whether a conviction is a "particularly serious crime" to bar asylum and withholding of removal is an inherently discretionary decision. Thus, the court will review a finding by the Board of Immigration Appeals that an offense is a particularly serious crime for abuse of discretion. The court found no abuse of discretion here where the immigration judge and Board reviewed the Statement of Facts from the guilty plea, took testimony from the applicant, and decided that a fraud conspiracy that resulted in a loss to the victims of nearly $2 million amounted to a particularly serious crime.
An Na Peng v. Holder
This decision extends the Supreme Court's decision in INS v. St. Cyr, which held that permanent residents who pled guilty to a removable offense prior to Congress' enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 remained eligible for discretionary relief from removal under former section 212(c) even though IIRAIRA repealed that form of relief. Although St. Cyr concerned a resident who pled guilty, Peng extends that holding to permanent residents who were convicted at trial of a crime involving moral turpitude who can plausibly argue they relied on the availability of 212(c). The decision rejected, however, Peng's argument that IIRAIRA's creation of a 7 year residence requirement for relief from removal under 212(h) was impermissibly retroactive.
Here, Peng could plausibly argue reliance on the existing state of the pre-IIRAIRA law when she decided to go to trial. A guilty plea to the charged offense (conspiracy to defraud the former INS, 18 U.S.C. § 371 (1995)) would result in no immigration benefit. She would be deportable no matter whether she pled guilty or was convicted at trial. Likewise, she would be eligible for 212(c) as a discretionary form of relief from deportation no matter whether she pled guilty or was convicted at trial. However, the option of proceeding to trial offered the benefit of the possibility of acquittal. In choosing that option, she plausibly could be said to rely on the availability of 212(c) even if the jury convicted her and the judge sentenced her to the maximum potential sentence. The maximum potential sentence was 5 years, and the aggravated felony definition at the time required a sentence to more than 5 years (an aggravated felony would have disqualified her from 212(c)).
The court contrasted this situation with that of a resident charged with an offense that could be an aggravated felony depending on the sentence imposed by the judge. Since it would leave the sentence in the hands of the judge and thus leave the question of whether it was an aggravated felony in the hands of the judge, a decision to go to trial would preclude a showing of plausible reliance.
Although the court found the repeal of 212(c) impermissibly retroactive because Peng plausibly could have relied on 212(c) as relief from removal, it dismissed without much explanation her argument that IIRAIRA's changes to 212(h) were not impermissibly retroactive. Adjustment of status with a waiver under 212(h) was another form of discretionary relief that was available to Peng when she decided to go to trial in her case. She could have relied on it to the same extent she relied on 212(c). Congress, however, later imposed a requirement of 7 years of continuous residence prior to the initiation of removal proceedings for a permanent resident to be eligible for 212(h). That disqualified Peng from something she plausibly could have relied upon, so it is not apparent why the court would reach a different conclusion. The brief treatment in the opinion mentions that she already had permanent resident status at the time she went to trial and seems to suggest that makes a difference. Perhaps the panel did not understand that adjustment with a 212(h) waiver is a long-recognized form of discretionary relief not just for non-residents, but also for residents like Peng.
Finally, the court rejected Peng's argument that imposing a 7 year continuous residence requirement on aliens previously granted permanent resident status, but not on those who have not previously held permanent resident status, violates equal protection. It cited Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) for the proposition that residents have greater rights so Congress may rationally hold them to a higher standard.