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On remand from the Supreme Court, Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012), the Ninth Circuit was obliged to vacate its previous determination that an applicant for cancellation of removal under 8 U.S.C. § 1229b(a) could impute his mother's residence to establish the statutory requirement of 7 years of continuous residence.

The Ninth Circuit then reached the noncitizen's alternative argument that his conviction for maintaining a dwelling for keeping controlled substances in violation of 16 Delaware Code section 4755(a)(5) (2002) did not terminate his own period of continuous residence. He had argued it might qualify as a single offense of possession for his own use of 30 grams or less of marijuana, which would not make him deportable and thus not terminate his continuous residence. The court rejected that argument summarily, pointing to the indictment which alleged he maintained the dwelling for cocaine-related crimes and a marijuana distribution crime.

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Ninth Circuit here added a gloss to its previous decision in Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007), which had upheld 8 C.F.R. § 1212.7(d). Section 1212.7(d) requires “extraordinary circumstances” such as “exceptional and extremely unusual hardship” for a 212(h) waiver of inadmissibility for an applicant for admission convicted of a violent or dangerous crime. Mejia had found that this was a permissible limitation on the exercise of discretion even though the standard exceeded 212(h)'s threshold requirement of "extreme hardship."

The gloss added by Rivera-Peraza, and the only thing that made this case worthy of publication, was the recognition that the exceptional and extremely unusual hardship required by § 1212.7(d) does not have to be to a qualifying relative. Hardship to the applicant counts for the purpose of the exercise of discretion. The Board recognized that, but found that the hardship was insufficient to outweigh the applicant's armed robbery conviction. The Ninth thus found no error of law and dismissed the petition.

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The Board held that, with a sentence to a year or more, a conviction for California Penal Code § 32 is categorically an aggravated felony for obstruction of justice under INA § 101(a)(43)(S). In doing so, it clarified its previous decision in Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). The Ninth Circuit had interpreted Espinoza to mean that a conviction involves obstruction of justice only if it involved hindering an ongoing investigation or judicial proceeding. Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). And a conviction under PC § 32 does not require the existence of an ongoing investigation or proceeding, so the Ninth Circuit's interpretation indicated it was not necessarily an aggravated felony.

The Board asserted that "obstruction of justice" in the aggravated felony definition is an ambiguous term and invoked the Supreme Court's decision in Brand-X to interpret that term despite the Ninth Circuit's decision. It held that an offense relates to obstruction of justice "if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice." Further, it implicitly held interference with the process of justice could include assisting with escape from arrest.

The Board distinguished Espinoza, where it held misprision in violation of 18 U.S.C. § 4 was not an obstruction of justice offense, because misprision does not require the person to act with the specific intent to interfere with the process of justice.

All of this points to the more basic problem that the Board has stretched "obstruction of justice" far past its traditional, accepted meaning. The Board asserts the phrase is ambiguous, but is it? Open any law dictionary and it is likely to define the term as interfering with the administration of justice, not as driving a get-away car. And it is not limited to any particular category of crimes, so an accessory after the fact conviction under the Board's definition could be an aggravated felony even where the underlying crime is not.

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The Ninth Circuit held that the Board of Immigration Appeals improperly engaged in fact-finding when it reversed the immigration judge's determination that the petitioner was not inadmissible under 8 U.S.C. § 1182(a)(2)(C) for knowing participation in drug trafficking. The petitioner had attempted to enter the U.S. in his employer's truck on instructions to get parts for the business and to have the tires changed on the truck. Inspectors at the port of entry found marijuana in the gas tank and charged him with inadmissibility (no criminal charges were filed). The immigration judge found the petitioner testified credibly that he had not known about the drugs. The Board reversed that decision based on testimony by one of the Customs and Border Protection officers who conducted the inspection. The testimony consisted of estimates and proffered opinion, but the immigration judge had declined to make findings of fact based on that testimony. By making findings of fact in the first place, the Board acted contrary to the limits on its authority under the regulations. The court held the Board should have remanded to the immigration judge for additional findings of fact.

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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