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Category: Jurisdiction

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The Supreme Court held that a permanent resident who pled guilty to a crime involving moral turpitude before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 still benefits from the Supreme Court's 1963 decision in Fleuti, which provides he would not be considered to be "seeking entry" after a innocent, casual, and brief trip abroad. If the resident is not seeking entry, then he is not subject to numerous additional criminal and noncriminal grounds for removal.

IIRAIRA created a new rule that returning residents are considered to be seeking admission upon return from abroad if they have committed an offense that makes them inadmissible. The Supreme Court held that rule is not retroactive because Congress did not explicitly make it retroactive and it creates a new disability (the noncitizen's inability in this case to travel to Greece briefly to visit his ill parents without being subject to removal upon return). It is thus another application of Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994).

Notably, the Supreme Court held that explicit reliance on prior law by the individual is not required to avoid retroactive application. The majority of the Court also rejected the dissent's argument that the noncitizen's own travel after IIRAIRA is what triggered his removal proceedings and he could have avoided those problems by not traveling.

Vartelas is not a big change for those of us in the Ninth Circuit or Fourth Circuit, since they already had found that the new definition of when a permanent resident would be seeking admission was not retroactive for noncitizens who pled guilty before IIRAIRA. Camins v. Gonzales, 500 F. 3d 872 (CA9 2007); Olatunji v. Ashcroft, 387 F. 3d 383 (CA4 2004).

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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.

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The Ninth Circuit held that a conviction under California Penal Code § 647(b) for soliciting an act of prostitution is categorically a crime involving moral turpitude. (The opening paragraph of the decision is misleading, since the body of the opinion makes clear the petitioner is challenging whether he is deportable for two crimes involving moral turpitude--not the denial of voluntary departure.)

No published Board decision holds that soliciting a prostitute is a crime involving moral turpitude (CIMT), but the panel relied on a 61 year-old decision that found the underlying act of prostitution is a CIMT, Matter of W., 4 I&N Dec. 401, 401-02 (CO 1951). (The Ninth Circuit mistakenly identified it as a Board of Immigration Appeals decision, but it actually is a Central Office decision.) The court also relied on a 46 year-old decision holding that renting a room for prostitution is a CIMT. Lambert, 11 I&N Dec. 340, 342 (BIA 1965). The panel found it could not distinguish solicitation from either of those offenses.

The reliance on hoary old cases like these is troublesome, particularly for a definition that is dependent on contemporary mores. Doubtless the adjudicators who decided the cited cases in 1951 and 1965 would consider most of what is on network television today to be morally turpitudinous. Certainly views on prostitution have evolved--from an emphasis on morality to an emphasis on protecting against exploitive conditions.

More significantly, it is hard to say that adult prostitution is a crime involving moral turpitude when it is legal and regulated in so many developed countries, including Canada, France, Germany, Israel, Hong Kong, Singapore, Ireland, and several other European countries. Apparently these countries do not view the profession as intrinsically evil as is generally the case with crimes involving moral turpitude. Indeed, there is no U.S. federal law that generally prohibits prostitution and it is legal in some counties in Nevada. How can something be legal in one state (not to mention other highly developed countries) yet be morally turpitudinous? The panel decision and the ancient cases it cited do not grapple with that question.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/28/10-70091.pdf.

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The Ninth Circuit held that a conviction for California Penal Code § 422 categorically is a crime involving moral turpitude. It reached this conclusion because (1) the conviction requires threats of death or great bodily injury, and actual intentional infliction of death or GBI would involve moral turpitude; (2) the statute also requires the threat to be of a nature that reasonably places the victim in sustained fear; and (3) a § 422 conviction requires the specific intent by the perpetrator that the victim take the statement as a threat, and the court deferred to the Board's judgment that this mens rea is a significant factor.

The outcome in this case is not surprising, but I note that the Ninth Circuit did not cite former Attorney General Mukasey's precedential definition of a crime involving moral turpitude in Matter of Silva-Trevino as a "reprehensible act" accompanied by a scienter of at least recklessness. Instead, like other recent Ninth Circuit cases, it defines crimes involving moral turpitude with reference to older definitions (here, the redundant “(1) is vile, base, or depraved and (2) violates accepted moral standards”). It seems everybody recognizes Silva-Trevino deserves no respect...

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/08-71277.pdf.

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The Supreme Court held in this case that the aggravated felony definition at 8 U. S. C. § 1101(a)(43)(M)(i) (an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000") encompasses tax offenses. It reached this conclusion despite a separate provision of the statute that designates only certain tax offenses as aggravated felonies: § 1101(a)(43)(M)(ii) (an offense that "is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000").

The Court's primary justification for why its interpretation did not render clause (ii) superfluous was a hypothetical that even the government conceded had never arisen in any tax prosecution: evasion of tax payment without fraud or deceit. In other words, a taxpayer who files a truthful return but puts the money beyond the IRS's reach. Since the tax offense listed in clause (ii) covers this scenario (as well as evasion that involves fraud or deceit), the Court concluded that clause (ii) covers some offenses not covered by the fraud or deceit offense in clause (i).

Justice Ginsberg's dissent points out how ridiculous it is to attribute this intention to Congress when the government has never prosecuted anyone for filing a truthful return and then evading payment. Instead, she attributes to Congress the sensible intent of only making the most serious tax offense, 26 U.S.C. § 7201, an aggravated felony. And in all of the known prosecutions, that tax offense has involved fraud or deceit. Thus, it makes no sense for Congress to create two provisions side-by-side and have one of them be essentially meaningless. Instead, clause (ii), which specifically addresses the most serious tax offense that causes loss of revenue to the government of more than $10,000, should be interpreted to exclude tax offenses from the fraud and deceit offenses covered by clause (ii). But only two justices agreed with Justice Ginsberg's analysis, so that is not the law.

Read the decision at http://www.supremecourt.gov/opinions/11pdf/10-577.pdf.

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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.

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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.

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The Ninth Circuit published orders in five cases directing the Attorney General to state whether he would exercise prosecutorial discretion in those cases and to state the effect that would have on them. ICE Director John Morton’s June 17, 2011, memo on prosecutorial discretion prompted the court to issue the orders. In each case, the court already had denied the petition for review and the petitioner had filed a petition for rehearing. The petitioners all had favorable discretionary factors and no known criminal convictions. Judge O'Scannlain dissented from each order, contending that separation of powers prevented the court from even asking the Attorney General the question.

Read the orders at:

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This Fourth Circuit case rejects the Attorney General's third step in Matter of Silva-Trevino, finding that the Immigration and Nationality Act (INA) is not ambiguous on the procedure to determine whether a crime involved moral turpitude. The court recognized that INA section 237(a)(2)(A)(i) makes a noncitizen deportable only if he has a "conviction" for a crime involving moral turpitude, not for any conviction that may have followed an alleged act of moral turpitude. In other words, the noncitizen must actually plead to, or be found guilty of, an act of moral turpitude to be convicted of it and to thus be deportable.

The court found that the parallel inadmissibility section of the INA, section 212(a)(2)(A)(i)(I), supported its interpretation. Section 212(a)(2)(A)(i)(I), unlike section 237(a)(2)(A)(i), is not limited to convictions; a noncitizen also may be inadmissible if he admits to committing a crime involving moral turpitude (or the essential elements of one). The AG in Silva-Trevino had relied on the "admits having committed" language in the inadmissibility ground to extend the moral turpitude inquiry beyond the record of conviction, but the court pointed out that this case and Silva-Trevino involved convictions (not admissions, nor inadmissibility). Whatever the procedure for admissions to crimes involving moral turpitude, it is not relevant for convictions. Of course, I don't see how the admits having committed language authorizes review of police reports or witness declarations either, since 212(a)(2)(A)(i)(I) specifically refers to admissions by the alien.

The court also rejected the AG's reliance on the word "involving" to broaden the scope of the inquiry, since "crime involving moral turpitude" is a unitary term of art that has more than 100 years of prior history--none of it authorizing the procedure in Silva-Trevino.

Finally, the court noted that the agency retains discretion to determine whether an offense involves "moral turpitude," which the courts have long found to be a notoriously ambiguous phrase. This is a subtle distinction. Moral turpitude may be ambiguous, but the statute unambiguously requires that the noncitizen be convicted of it--i.e., that the act of moral turpitude be admitted by the noncitizen, or found by the court or jury, in the record of conviction. It does not authorize the agency to transform any conviction into a crime involving moral turpitude by using police reports, witness testimony, or other evidence that was not incorporated into the factual basis for the plea or finding of guilt.

Read the decision at http://pacer.ca4.uscourts.gov/opinion.pdf/102382.P.pdf.

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The Ninth Circuit held that a stipulated facts trial is functionally equivalent to a guilty plea for purposes of eligibility for 212(c) under the Supreme Court's decision in St. Cyr. In this case, the noncitizen was charged with heroin importation and possession with intent to distribute. She had brought the heroin back to the U.S. in 1980 after using it in Thailand to manage pain from a surgery she had there. In the criminal proceedings, she waived many of her constitutional rights and agreed to a court trial where she stipulated to possession of $100k worth of heroin with the intent to use it exclusively for herself. The criminal court found her guilty of importation and not guilty of possession with intent to distribute.

DHS put her in removal proceedings in 2005 based on inadmissibility for a controlled substance offense. The immigration judge and BIA found her ineligible to waive her inadmissibility under former section 212(c), which was repealed in 1996. She would have been eligible for 212(c) if she had been put in exclusion proceedings 20 years earlier, and clearly would be eligible even now--if she had entered a guilty plea. Given retroactivity concerns, the Supreme Court determined in St. Cyr that 212(c) remains available for persons who pled guilty prior to its repeal because they presumably would be relying on its availability when they gave up their constitutional rights. The BIA held this case was distinguishable because the Tyson had a court trial instead of pleading guilty.

The Ninth Circuit held that a stipulated facts trial in these circumstances was more like a guilty plea than a contested court or jury trial, since her stipulation virtually assured her conviction on the importation count. In fact, the panel found it was akin to a no-contest plea, which the regulations specifically recognize preserves 212(c) eligibility. 8 C.F.R. § 1212.3(h). The fact that the record evidence of quid pro quo for the plea is weak is not determinative, although the government did benefit by saving resources and she received a relatively light plea.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/01/27/08-70219.pdf.

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