Recent Developments In Criminal Immigration Law - February 2008
[1] ARTICLE -- COURT OF APPEALS
AUTHORITY TO OVERRULE BOARD OF IMMIGRATION APPEALS APPLIES WHERE STATUTE IS
UNAMBIGUOUS AND THERE IS NO ROOM FOR AGENCY DISCRETION TO WHICH DEFERENCE IS
REQUIRED
In
National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545
U.S. 967, 982-983, 125 S.Ct. 2688 (June 27, 2005), the Supreme Court stated:
"A court's
prior judicial construction of a statute trumps an agency construction otherwise
entitled to Chevron deference only if the prior court decision holds that its
construction follows from the unambiguous terms of the statute and thus leaves
no room for agency discretion... Only a judicial precedent holding
that the statute unambiguously forecloses the agency's interpretation, and
therefore contains no gap for the agency to fill, displaces a conflicting agency
construction. " (Emphasis added). Congress is not
presumed to overrule existing law sub silentio. The categorical analysis
and divisible statute rules were in place before the recent immigration
legislation was enacted. There are strong arguments that the BIA's
decision in Matter of Babaisakof, 24 I. & N. Dec. 306 (BIA 2007), does not
qualify as the type of subsequent administrative interpretation under the
Supreme Court's test in Brand X that can abrogate the Ninth Circuit fraud
decisions. See Brand X, supra, 545 U.S. at 982: "A court's prior judicial
construction of a statute trumps an agency construction otherwise entitled to
Chevron deference only if the prior court decision holds that its construction
follows from the unambiguous terms of the statute and thus leaves no room for
agency discretion." In Chang v. INS, 307 F.3d 1185 (9th Cir. 2002), the
Ninth Circuit's language suggests its decisio n was based on the "unambiguous
terms" of INA § 101(a)(43)(M)(i) and the statutory definition of conviction at
INA § 101(a)(48)(A): "To adopt the government's approach would divorce the
$10,000 loss requirement from the conviction requirement, see 8 U.S.C. §
1227(a)(2)(A)(iii) (providing that an alien is deportable 'who is convicted of
an aggravated felony'." Chang v. INS is the type of circuit decision that
the Court in Brand X said is not subject to abrogration by a later
administrative interpretation. The argument may not be as strong for
Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007) (offense need not be an
aggravated felony to be a particularly serious crime for withholding purposes),
or in other circuits, but in the Ninth Circuit, because Chang was linked to
statutory construction and not just the Taylor/Shepard analysis, the BIA's later
interpretation cannot overrule the Ninth Circuit's decision in Chang v.
INS. Li v. Ashcroft, 389 F.3d 892 (9t h Cir. 2004), or the other 9th
Circuit fraud cases, may offer additional support. Thanks to Dan
Kesselbrenner.
[2]
NATIONAL LAW
REGULATIONS -
VALIDITY -- MOTION TO REOPEN - AFTER DEPARTURE FROM UNITED
STATES
IMMIGRATION COURT JURISDICTION
AFTER DEPORTATION OR DEPARTURE FROM UNITED STATES
The regulations provide that
departure from the United States under an order of deportation, or while a
removal order is on appeal to the BIA, shall render the immigration judge's
decision final and bar any motion to reopen or reconsider. 8 C.F.R. §§
1003.2(d), 1003.4. However, many circuits have challenged the validity of
these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007)
(first sentence of 8 C.F.R. § 1003.2(d) is ultra vires to statute); Lin v.
Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d
1001 (9th Cir. 2007) (giving narrow reading to phrase "is the subject of");
Contreras-Rodriguez v. United States Att'y Gen., 462 F.3d 1314 (11th Cir. 2006)
(departure regulation does not apply to in absentia motions to reopen);
Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) ("Under 8 C.F.R. §
1003.4, any voluntary departure from the United Sta tes following entry of an
order of deportation will be deemed to withdraw a pending appeal and to render
the order of deportation final."). Thanks to Rachel E. Rosenbloom; Beth
Werlin.
STATUTORY CONSTRUCTION -
DECLARES WHAT HAS ALWAYS BEEN THE LAW
A judicial decision interpreting a
statute does not announce a new rule. For example, INS v. St. Cyr, 533
U.S. 289 (2001) was a case of statutory interpretation. 121 S.Ct. at
2278. As such, its holding did not change the law. See Rivers v.
Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128 L.Ed.2d 274
(1994). Rather, St. Cyr "finally decided what [IIRAIRA] had always meant
and explained why the [BIA and the] Courts of Appeals had misinterpreted the
will of the enacting Congress." 511 U.S. at 313 n. 12, 114 S.Ct.
1510.
REMOVAL PROCEEDINGS -
WITHDRAWAL OF ADMISSIONS OF FACT AND CONCESSIONS OF DEPORTABILITY
How does counsel withdraw a prior
admission to facts contained in the NTA or a prior concession of removability
under one of the charged grounds? See Huerta-Guevara v. Ashcroft, 321 F.3d
883, 826 (9th Cir.2003) ("we may consider an issue regardless of waiver if the
issue is purely one of law and the opposing party will suffer no prejudice or if
new issues have become relevant while the appeal was pending because of a change
in the law.") In that case, Huerta-Guevara conceded deportability, then
filed an appeal to the BIA contesting deportability on the basis that her crime
was not an aggravated felony. The Ninth Circuit found that her concession
was not dispositive. This holding has been applied in three unpublished
BIA cases. (2007 WL 275744, 2007 WL 1059685, and 2006 WL 2008223.)
Counsel can argue if there is no waiver for appeal purposes, then there should
be no waiver in pending removal proceedi ngs, provided that the opposing party
will suffer no prejudice. Counsel should file a motion to change the
pleadings as soon as possible so that the IJ cannot say counsel waited too long
to do so. Thanks to Michael K. Mehr.
TRAVEL DURING PROCEEDINGS
Some authority exists for allowing travel during
removal proceedings. Former O.I. §235.1(k)(4); Letter, Cronin, Asst.
Comm., Inspections, reported in 10 AILA Monthly Mailing 497-99 (July/Aug.
1991); Inspector's Field Manual at 13.1, 17.1; 8 C.F.R.
§223.2(g).
BOARD OF IMMIGRATION
APPEALS -- INADMISSIBILITY - UNLAWFUL PRESENCE BAR INA §
212(a)(9)(B)(i)(II)
Matter of
Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007) (noncitizen who is unlawfully
present in the United States for one year, leaves the United States, and then
seeks admission within 10 years of departure, is inadmissible under INA §
212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(2)(B)(i)(II), even if the departure was
not made pursuant to an order of removal and was not a voluntary departure in
lieu of being subject to removal proceedings or at the conclusion of removal
proceedings; noncitizen may not adjust status). For more information on
this subject, see N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS §
18.10 (2007).
BOARD OF
IMMIGRATION APPEALS -- INADMISSIBLITY - UNLAWFUL PRESENCE BAR INA §
212(a)(9)(C)(i)(I)
Matter of Briones,
24 I. & N. Dec. 355 (BIA 2007) (to be inadmissible under INA §
212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I) (2000), a noncitizen must
leave the United States after accruing an aggregate period of "unlawful
presence" of more than one year and thereafter reenter, or attempt to reenter,
the United States without being admitted; noncitizen may not adjust status),
disagreeing with Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006);
Padilla-Caldera v. Gonzales, 426 F.3d 1294, amended and superceded on reh'g, 453
F.3d 1257 (10th Cir. 2005).
BOARD
OF IMMIGRATION APPEALS -- CRIME OF MORAL TURPITUDE - INADMISSIBILITY --
ADMISSION IN LIEU OF CONVICTION
CONTROLLED SUBSTANCES -- INADMISSIBILITY -- ADMISSION
IN LIEU OF CONVICTION
INADMISSIBILITY
- ADMISSION OF FACTS - FINDING OF GUILT CANNOT BE BASED ON INFERENCES FROM FACTS
RESPONDENT REFUSES TO ADMIT
In the
absence of a conviction, a finding of guilt cannot be based on inferences of
facts that the noncitizen has failed or refused to admit. Matter of GM, 7 I.
& N. Dec. 40 (Att'y Gen. 1956); Matter of EN, 7 I. & N. Dec. 153 (BIA
1956). For more information on this subject, see N. TOOBY & J. ROLLIN,
CRIMINAL DEFENSE OF IMMIGRANTS § 18.8 (2007), N. TOOBY, J. ROLLIN & J.
FOSTER, CRIMES OF MORAL TURPITUDE § 4.4 (2005).
[3] CIRCUIT COURT DECISIONS
SECOND CIRCUIT -- JUDICIAL REVIEW - BOARD OF
IMMIGRATION APPEALS HAS NO AUTHORITY TO ISSUE REMOVAL ORDER IN FIRST
INSTANCE
Rhodes-Bradford v. Keisler,
___ F.3d ___, 2007 WL 3284706 (2d Cir. Nov. 7, 2007) (BIA has no authority to
issue a removal order in the first instance, after IJ had ordered termination of
proceedings).
SECOND CIRCUIT --
POST CON RELIEF - FEDERAL - CORAM NOBIS
Qiao v. United States, ___ F.Supp.2d ___ (S.D.N.Y.,
Nov. 15, 2007) ("Qiao has shown that (1) his guilty plea was the product of
ineffective assistance of counsel and as such, should be set aside to "achieve
justice"; (2) his administrative efforts challenging the designation of his 1999
conviction as an aggravated felony constitute "sound reasons . . . for [his]
failure to seek appropriate earlier relief"; and (3) the removal proceedings
brought by DHS against Qiao cause him "to suffer legal consequences from his
conviction that may be remedied by granting of the writ." Id. at 90.
Accordingly, Qiao's petition for a writ of error coram nobis is granted, and
Qiao's conviction and sentence for mail fraud and conspiracy to commit mail
fraud is hereby vacated."). For more information on this topic, see N.
TOOBY, POSTCONVICTION RELIEF FOR IMMIGRANTS § 5.43 (2004).
FOURTH CIRCUIT -- ILLEGAL REENTRY - SUPPRESSION OF
IDENTITY INFORMATION FLOWING FROM ILLEGAL ARREST
United States v. Oscar-Torres, ___ F.3d ___ (4th Cir.
Nov. 8, 2007) ("After arresting Raul Mesa Oscar-Torres without a warrant as part
of a nationwide initiative to apprehend illegal alien gang members, law
enforcement officers fingerprinted him and thus obtained his criminal and
immigration records. The Government then charged him with one count of illegally
reentering the United
States
following commission of a felony and deportation, in violation of 8 U.S.C.A. §
1326(a) and (b)(1) (West 2005 & Supp. 2007). Prior to trial, Oscar-Torres
moved to suppress the fingerprint evidence and the records obtained through it
as the "fruit" of his illegal arrest. The district court denied the motion,
reasoning that this evidence constituted "identity" evidence and therefore could
never be suppressed. Oscar-Torres conditionally pled guilty, reserving the right
to appeal denial of his suppression motion. We reverse and remand for further
proceedings."). NOTE: This case is concerned a Fourth Amendment violation
applicable to criminal proceedings, not the much more difficult Fifth Amendment
protection.
FIFTH CIRCUIT --
JUDICIAL REVIEW - PETITION FOR REVIEW - FUGITIVE DISENTITLEMENT DOCTRINE -
APPLICTION TO POLITICAL ASYLUM
Giri
v. Keisler, ___ F.3d ___ (5th Cir. Nov. 7, 2007) (fugitive disentitlement
doctrine may be invoked to dismiss a petition for review of a BIA decision by a
fugitive alien: "It is uncontested that the Giris have become fugitives since
they filed their petition for review with this court. Consequently, they now
wish to invoke the protection that a favorable decision from this court would
provide, without submitting themselves to the risk of an adverse ruling. While
it is certainly possible that the Giris may eventually decide to comply with
their removal order following an adverse ruling in this matter, there is no
indication that they will do so, and thus any decision on the merits, unless it
is to petitioners' liking, may have no practical effect whatsoever. It is, as
the Ninth Circuit suggests, akin to a game of "heads I win, tails you'll never
find me." We can find no reason to indulge such conduct, and therefore conclude
that th e fugitive disentitlement doctrine serves to bar further review of the
BIA's decision.").
Contrary to this decision, it would be possible to argue that where asylum
is involved, there are life and death issues of submitting to deportation before
the Court rules, and that some procedure short of fugitive disentitlement would
be appropriate. See Bernal-Garcia v. INS, 852 F.2d 144 (5th Cir. August
19, 1988).
Thanks to Lisa
Brodyaga.
SIXTH CIRCUIT -- CRIMES
OF MORAL TURPITUDE - DEPORTATION
ADMISSION - ADJUSTMENT OF STATUS DOES NOT BEGIN A NEW
FIVE-YEAR PERIOD
Zhang v. Mukasey,
___ F.3d ___, 2007 WL 4191756 (6th Cir. Nov. 29, 2007) (adjustment of status
does not constitute an "admission" for purposes of starting the five-year period
within which a CMT must be committed to trigger deportation under INA §
237(a)(2)(A)(i), 8 U.S.C. § 1227(a) (2)(A)(i)), agreeing with Shivaraman v.
Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004); Abdelqadar v. Gonzales, 413 F.3d
668, 673 (7th Cir. 2005); Aremu v. Dep't of Homeland Sec., 450 F.3d 578, 581
(4th Cir. 2006), disagreeing with Matter of Shanu, 23 I. & N. Dec. 754 (BIA
2005).
NINTH CIRCUIT -- REMOVAL
PROCEEDINGS - EVIDENCE - AUTHENTICATION
Petrosyan v. Mukasey, __ F.3d __, 2007 WL 4168985
(9th Cir. Nov. 27, 2007) (respondent may seek to authenticate a foreign public
document by any means established under 8 C.F.R. § 287.6(c), Fed. R. Evid. 901
or any other recognized procedure, including through testimony of
respondent). For more information on this subject, see N. TOOBY & J.
ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS § 15.26 (2007).
NINTH CIRCUIT -- CRIMES OF MORAL TURPITUDE -
SOLICITATION
Barragan-Lopez v.
Mukasey, ___ F.3d ___, 2007 WL 4125266 (9th Cir. Nov. 21, 2007) (Arizona
conviction for solicitation to possess at least four pounds of marijuana for
sale, in violation of Ariz. Rev. Stat. §§ 13-1002(A) and (B)(2), 13-3405(A)(2)
and (B)(6), constitutes a crime involving moral turpitude for the purposes of
INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), since this ground does not
specifically list "attempt" and "conspiracy," and thus does not impliedly
exclude "solicitation").
Note: The court applied a "target
offense" analysis. Under this analysis, solicitation to commit a non-CMT
offense should not be considered a CMT. The case also holds that
solicitation offenses are included in INA § 237(a)(2)(A)(i), 8 U.S.C. §
1227(a)(2)(A)(i), because that section does not mention "attempt and conspiracy"
to the exclusion of other non-substantive offenses. This case would not
apply to the CMT ground of inadmissibility, since INA § 212(a)(2)(A)(i)(I), 8
U.S.C. § 1182(a)(2)(A)(i)(I) does include the "attempt or conspiracy" language,
and thus impliedly excludes solicitation offenses. The same holds true for
any other ground of deportation or inadmissibility that lists attempt and
conspiracy, but not solicitation, such as the controlled substances ground of
inadmissibility, INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), and
the aggravated felony ground of depo rtation, INA § 101(a)(43)(U), 8 U.S.C. §
1101(a)(43)(U), inter alia.
NINTH
CIRCUIT -- NATURE OF CONVICTION - CATEGORICAL ANALYSIS - LIMITS ON DUENAS
"REALISTIC PROBABILITY OF PROSECUTION" TEST.
United States v. Grisel, 488 F.3d 844, 850 (9th Cir.
2007) (en banc) ("Where, as here, a state statute explicitly defines a crime
more broadly than the generic definition, no "legal imagination,"
Duenas-Alvarez, 127 S.Ct. at 822, is required to hold that a realistic
probability exists that the state will apply its statute to conduct that falls
outside the generic definition of the crime."); United States v. Vidal, __ F.3d
__, 2007 WL 2937015 (9th Cir. Oct. 10, 2007) (same). See also
Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007) (listing unpublished
California cases as evidence that statutory rape is prosecuted in the case of
17-year-old victims).
NINTH
CIRCUIT -- AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - PUBLIC INDECENCY TO
CHILD
Rebilas v. Keisler, ___ F.3d
___ (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual
indecency to a minor, in violation of ARS §§ 13-1001 and 13-1403(B), includes
conduct that falls outside the federal definition of attempted sexual abuse of a
minor under INA §§ 101(a)(43)(A), (U), 8 U.S.C. §§ 1101(a)(43)(A) and (U);
statute includes acts that do not involve touching or knowledge of the child,
and therefore do not involve sexual abuse of a minor). Note: the court
examined Arizona state caselaw, applying Duenas.
POST-CONVICTION RELIEF
FINDING LOCAL POST-CONVICTION COUNSEL
Immigration counsel can encounter
criminal convictions from across the country that trigger adverse consequences
for their clients. Once the post-conviction strategy is set, it is
important to find local counsel who is the best possible person to persuade the
prosecutor and court to agree to grant post-conviction relief. A thorough
way to do this is to make a sufficient number of phone calls asking a battery of
qualifying questions, and ultimately the same name will be recommended again and
again, by more than one person, giving great assurance this is the best person
for the job. One time, we retained a former law partner of the judge who
would hear the case (and who was still on good terms with him). We also
want to make sure the person meets other qualifications, such as being
academically sharp, extremely experienced and well respected by the prosecutor's
office, experienced in obtaining PCR ideally for immigration reasons, etc.
For more information on this subject, see N. TOOBY, POST-CONVICTION RELIEF FOR
IMMIGRANTS § 6.57 (2004); N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF
IMMIGRANTS § 11.26 (2007).
MASSACHUSETTS -- POST CON RELIEF - GROUNDS -- STATE
ADVISAL STATUTES
Commonwealth v.
Rodriquez, ___ Mass. App. ___ (Ct. App. Nov. 16, 2007) ("We agree with the
motion judge that because the defendant now also faces immigration consequences
about which she was not warned (denial of readmission), the plain language of
the statute requires that the defendant be permitted to withdraw her guilty
plea. More specifically, we conclude that the defendant's conviction -- a
drug-related "aggravated felony" for purposes of immigration law -- results in
the automatic, and now permanent, denial of readmission to the United States,
see 8 U.S.C. § 1182(a)(9)(A) (2000), and that this is an "enumerated
consequence" of the defendant's plea about which she was not
warned."). For more information on this subject, see N. TOOBY,
POST-CONVICTION RELIEF FOR IMMIGRANTS § 6.57 (2004).
TEXAS - POST-CONVICTION RELIEF -- STATE ADVISAL
STATUTE VIOLATION REVERSAL
Kelley v.
State, 2007 Tex. App. LEXIS 8821 (Ct. App. Nov. 6, 2007)(when the trial court
fails to admonish a defendant about the immigration consequences of his guilty
plea, a silent record on citizenship, or a record that is insufficient to
determine citizenship, establishes harm by the standard of Rule
44.2(b).).
Copyright (c) 2007 by Norton Tooby. All rights reserved.
About The Author
Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.
Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.
For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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