Skip to content

Category: Jurisdiction

Published on

The Board of Immigration Appeals finally has declared surrender on the issue of 212(c) relief after decades of litigation. With its decision in this case, it has adopted the position urged by the amicus curiae brief of the American Immigration Lawyers Association to return to its position in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990), before the Attorney General overruled it.

The Board held 212(c) is available to waive all grounds of deportability except those comparable to the grounds of excludability (inadmissibility) excluded from 212(c) by its text (relating to terrorists, saboteurs, and war criminals). 212(c) thus is available to waive even convictions that would not make an immigrant inadmissible for a crime involving moral turpitude or controlled substance offense. It found this was the only option offered by the parties and amici that would fulfill the Supreme Court's mandate in Judulang to avoid mechanical distinctions in 212(c) eligibility criteria that do not rationally relate to an immigrant's fitness to remain in the U.S.

The Board further held that proof of reliance on the possibility of 212(c) relief was not necessary to establish eligibility and that 212(c) was available to immigrants convicted after trial, not just pursuant to a plea. This was not necessary to resolve Abdelghany's case, but the Board nonetheless seems to have wanted to settle all of the 212(c) issues once and for all. Moreover, the conclusion was all but compelled by the Supreme Court's retroactivity holding on the continued vitality of the Fleuti exception in Vartelas.

Likewise, the Board held that 212(c) eligibility also does not hinge on whether the conviction actually made the immigrant deportable at the time of the conviction. Again, the focus is on whether a new law imposes a disability on a past action, not on whether there was reliance--as Vartelas teaches. The Board buttressed that conclusion by quoting the double bulwark language of United States v. Leon-Paz, 340 F.3d 1003, 1006−07 (9th Cir. 2003). The Ninth Circuit held Leon-Paz “had two bulwarks to protect himself against attacks on his residence in this country.” "The first was the fact that he had pled to a crime that was below the aggravated felony threshold, and the second was § 212(c) itself in case the definition of aggravated felony changed as it often had and has.”

Nonetheless, some limitations on 212(c) relief remain related to the statutory history. An immigrant is not eligible if: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

DOWNLOAD (PDF, 140KB)

Published on

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.

Published on

In this Sentencing Guidelines case, the Ninth Circuit reviewed case law from the Delaware Supreme Court to determine whether the court had narrowed that state's unusually broad statutory definition of criminal attempt. It did so despite the fact that the U.S. Supreme Court in Descamps reserved the question of whether review of case law to determine the reach of a statute is permitted under the categorical analysis.

The panel's review of the case law of the Delaware Supreme Court revealed that the definition of attempt in that state really is as broad as the statute implies. Delaware law criminalizes attempt where the defendant has committed an act that leaves no reasonable doubt as to the defendant’s intention to commit the crime he or she is charged with attempting to commit. In other words, a person could be convicted of attempt where he or she has taken a step merely in preparation toward committing a crime. This is in contrast to most states and the generic federal definition, which require both intent and a substantial step toward completion. And a "substantial step" occurs under the federal generic definition when a defendant’s "actions 'unequivocally demonstrat[e] that the
crime will take place unless interrupted by independent circumstances.'"

Since the case law merely confirmed the statutory text, the panel did not need to use the case law to decide that the defendant's attempt conviction here was not a categorical match to the federal definition. Nonetheless, Judge Wallace's concurrence opposed even this on judicial restraint grounds. He wrote that the underlying crime attempted in this case (statutory rape) was not a match to the Sentencing Guidelines definition for a forcible sex offense. As it is not a match, an attempt to commit that crime is not a match to the federal definition either. He would have denied the case on that ground.

DOWNLOAD (PDF, Unknown)

Published on

Reviewing Attorney General's decision in Matter of Silva-Trevino, the Fifth Circuit joined the Ninth Circuit and three other circuits to reject the new procedure announced in that case whereby an immigration adjudicator can go beyond the record of conviction to evaluate whether a noncitizen is inadmissible for a crime involving moral turpitude.

The Fifth Circuit found the statutory text of INA 212(a)(2)(A)(i) was unambiguous and thus foreclosed the Attorney General's interpretation. The text makes inadmissible an alien "convicted of" or who admits to a crime involving moral turpitude (CIMT). Here, Silva-Trevino had not admitted to a CIMT. Thus, the question was whether evidence outside the record of conviction could be used to establish that he was convicted of such a crime. The court said no, tracking the analysis of the Ninth Circuit's decision in Olivas-Motta v. Holder-.

The only questionable part of the Fifth Circuit's decision in Silva-Trevino and the Ninth Circuit's decision in Olivas-Motta is the reference to INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B). That section lists the documents can be used to prove the existence of a conviction, and both Silva-Trevino and Olivas-Motta cite it to suggest that documents not listed there cannot be used to prove a conviction involved moral turpitude. The reverse implication is that all of the documents in that list can be used to prove the offense involved turpitude. The list contains court records, jail records, state criminal histories, etc. The use of those documents to establish the existence of a conviction is not controversial--that is what the statute permits (and that is all that it permits). The unlimited use of those documents to prove the nature of the conviction, however, would create a problem. Some of those documents contain extraneous information that the defendant did not admit and the judge or jury did not find. And the Supreme Court twice last term emphasized that the categorical analysis concerns only those elements that a defendant necessarily was convicted of. The unconsidered citation to 8 U.S.C. 1229a(c)(3)(B) suggests otherwise.

DOWNLOAD (PDF, 257KB)

Published on

The Ninth Circuit held that a guilty plea to possessing a controlled substance with intent to distribute may be considered in determining whether there is reason to believe the noncitizen is a drug trafficker--even if the conviction is later overturned, at least if the conviction is overturned for a reason unrelated to the voluntariness of the plea.

Here, the noncitizen's conviction was overturned because the police did not have reasonable suspicion to conduct the traffic stop that led to his arrest. Nonetheless, the court held the plea--along with circumstantial evidence in the case--could be considered to establish the noncitizen's inadmissibility for reason to believe he had engaged in drug trafficking.

DOWNLOAD (PDF, Unknown)

Published on

Following the Supreme Court's decision in Descamps, the Ninth Circuit adhered to its original decision in this case (despite the frolic occasioned by Aguila-Montes de Oca). It held that a court may only examine the elements of a conviction to determine whether the conviction satisfies the requirements of a federal definition. Further, a reviewing court may look to the contents of a record of conviction only when necessary to identify which of multiple alternative elements the defendant was convicted of (and then only if at least one alternative would satisfy the federal definition).

Here, the court found the immigrant's conviction under the Uniform Code of Military Justice for using a government computer to access pornography did not include as an element the depiction of a minor engaging in sexually explicit conduct (because the order he violated prohibited accessing any type of pornography), so the conviction did not satisfy the aggravated felony definition of conviction of a child pornography offense. Nor could the government resort to the record of conviction because the statute of conviction was not divisible into multiple alternative elements--the element of the depiction of a minor engaging in sexually explicit conduct was entirely missing from the offense.

DOWNLOAD (PDF, Unknown)

Published on

The Ninth Circuit held that the aggravated felony bar to a 212(h) waiver of inadmissibility does not apply to a permanent resident who was admitted to the U.S. from abroad as something other than a permanent resident and then later adjusted status to permanent residence. It, like all of the other circuit courts to have reviewed the question, found this result compelled by the plain language of the statute. Thus, the petitioner here was not barred from seeking a 212(h) waiver of inadmissibility for her crime involving moral turpitude because she entered on a B-2 visitor visa and then adjusted to permanent resident status.

A person who was admitted on an immigrant visa, however, would not be eligible for 212(h) to waive a later criminal ground of inadmissibility. The court also recognized that an adjustment of status would count for the purpose of the 212(h) aggravated felony ground of ineligibility if the person was not inspected and admitted and admitted from abroad--i.e., where the person entered without inspection. It found the language of the statute did not preclude the interpretation of the Board of Immigration Appeals in this circumstance.

DOWNLOAD (PDF, Unknown)

Published on

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.

GDE Error: Error retrieving file - if necessary turn off error checking (404:Not Found)

Published on

The Board held that a conviction for unlawful possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) was categorically an aggravated felony. The Immigration and Nationality Act makes a conviction under “section 922(g)(1)... of title 18, United States Code (relating to firearms offenses)” an aggravated felony. The respondent had argued the parenthetical "relating to firearms offenses" limited the definition to firearms and thus excluded ammunition offenses. The Board rejected that argument. It noted that parentheticals have often been found to be merely descriptive and that the language of this particular parenthetical does not indicate Congress intended it to have a limiting effect.

DOWNLOAD (PDF, 29KB)

Published on

The Ninth Circuit held that a conviction for California Penal Code section 288(c)(1) (lewd or lascivious act on child 14 or 15 years of age by a person at least 10 years older) is categorically a crime of violence under 18 USC 16(b), and thus is an aggravated felony with a sentence to one year or more.

Section 16(b) requires that the offense be a felony which “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Citing United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2012) and Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. 2012), the court held that there only need be a substantial risk of the use of force in an "ordinary" case prosecuted under the statute. An offense may be a categorical aggravated felony even where there is a possibility that the statute may be violated "at the margin" in a way that does not involve such a risk.

The court found that "in the ordinary case" of 288(c)(1) there is a substantial risk that the perpetrator will use physical force against the victim, since the victim may resist and the adult may use physical force to ensure compliance. The petitioner had argued the statute covered offenses where the victim consented to the conduct, but the court held that such a possibility at the margin was not enough to prevent it from being considered a crime of violence. The court also noted that PC 288(c)(1) requires an age difference of at least 10 years, which in its view made the use of physical force more likely than in consensual statutory rape (where the perpetrator need only be 18 years of age and the victim could be just one day shy of 18).

DOWNLOAD (PDF, Unknown)

510-835-1115