The U.S. Supreme Court held this week that the phrase “physical force” means “violent force” for purposes of a statute that uses the exact language as the statutory definition of “crime of violence.” Johnson v. United States, No. 08-6925, slip op. (March 2, 2010) (Scalia, Roberts, Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor). Scalia wrote for the majority; Alito dissented and was joined by Thomas.

This case involved a conviction for Florida’s felony offense of battery, Fla. Stat. § 784.03(1)(a), (2). The question before the Court was whether the battery conviction constitutes a “violent felony” for purposes of sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). A “violent felony” is defined, in relevant part, as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

This definition exactly matches the definition of “crime of violence,” 18 U.S.C. § 16(a), referenced by the crime of violence category of aggravated felony, INA § 101(a)(43)(F). As such, the Court’s interpretation of this phrase is significant to immigration attorneys. Indeed, the Court turned to its decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), in which it addressed the definition of “crime of violence” for purposes of determining whether an LPR had been convicted of an aggravated felony. Johnson, No. 08-6925, slip op. at 5-6 (discussing Leocal, 543 U.S. at 11). In Leocal, the Court held, “The ordinary meaning of this term [crime of violence], combined with § 16’s emphasis on the use of physical force against another person…suggests a category of violent, active crimes….” Leocal, 543 U.S. at 11.

In Johnson, the Court adapted this interpretation of “physical force” to the definition of “violent felony.” Johnson, No. 08-6925, slip op. at 6. The Court clearly announced, “We think it clear that in the context of a statutory definition of “violent felony,” the phrase “physical force” means violent force—that is, force capable of causing physical pain or injury to another person.” Johnson, No. 08-6925, slip op. at 6.

The dissent criticized the majority’s holding because, in the view of Justices Alito and Thomas, it will undermine DHS’s ability to remove non-citizens convicted of assault or battery offenses in many states. Johnson, No. 08-6925, slip op. at 6-7 (Alito, J., dissenting). Alito cited to statutes in 28 states, including Arizona, California, Texas, Massachusetts, and Virginia, which he thinks are affected by the majority’s position. Johnson, No. 08-6925, slip op. at 7 n.3 (Alito, J., dissenting).

According to Alito, “Although the great majority of convictions under these statutes are, no doubt, based on the use of violent force, the effect of the Court’s decision will be to take all these convictions outside the scope of ACCA—unless the Government is able to produce documents that may properly be consulted under the modified categorical approach and that conclusively show that the offender’s conduct involved the use of violent force.” Johnson, No. 08-6925, slip op. at 7-8 (Alito, J., dissenting).

The majority responds that this is an “exaggerat[ion].” Johnson, No. 08-6925, slip op. at 10. Under the modified categorical approach allowed by Shepard v. United States, 544 U.S. 13, 26 (2005), and Taylor v. United States, 495 U.S. 575, 602 (1990), the majority points out, courts can and do “consult[] the trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” Johnson, No. 08-6925, slip op. at 10.

Because the Johnson Court defined the physical force needed for a “violent felony” by borrowing from Leocal’s definition of the physical force needed for a “crime of violence,” the greatest benefit that this case offers to immigration attorneys is likely its reiteration of that interpretation of physical force. The Court has signaled that the physical force required for violent offenses—whether termed “crime of violence” or “violent felony”—is indeed a “violent force,” rather than a mere touching.

Because the Florida battery offense allows for a conviction based on “any intentional physical contact, ‘no matter how slight,’” the Johnson Court held that this offense is not a violent felony. Johnson, No. 08-6925, slip op. at 11.  Presumably, therefore, Florida battery also does not constitute a crime of violence.

In a decision published last week, the Fourth Circuit Court of Appeals held that a crime that is not an aggravated felony may nonetheless be considered a “particularly serious offense” or “particularly serious crime” (PSC) for purposes of Withholding of Removal and asylum eligibility. Gao v. Holder, No. 07-2070, slip. op (4th Cir. Feb. 23, 2010) (Traxler, Wilkinson, and Michael). The Fourth Circuit also held that a crime that is not a PSC on its face, may rise to the level of a PSC if it implicates national security. Judge Wilkinson wrote the panel’s unanimous opinion.

This case concerns a lawful permanent resident convicted of unlawful export of Commerce Control List items, 50 U.S.C. § 1702 and 1705(b), and tax fraud, 26 U.S.C. § 7206(1). According to the BIA, Gao exported microprocessors to “‘quasi-governmental entities in China’ that focused on military research.” Gao, No. 07-2070, slip. op at 3.

The parties agreed that the unlawful export offense did not constitute an aggravated felony. Gao, No. 07-2070, slip. op at 6. Nonetheless, the BIA found that this offense was a PSC, thus barring Gao from eligibility for withholding of removal. Gao, No. 07-2070, slip. op at 2.

The parties and the Fourth Circuit agreed that the INA does not provide a clear definition of PSC. The INA sets out the framework for determining what constitutes a PSC in § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii):

an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.

Individuals who have been convicted of a PSC are ineligible for Withholding and asylum.

The critical issue on appeal concerns the second sentence of the passage quoted above. Gao “contends that the second sentence modifies the one before it by granting the Attorney General discretion to find that other aggravated felonies are particularly serious on a case-by-case basis. But because the second sentence does not mention non-aggravated felonies, she argues that the Attorney General is implicitly precluded from considering those offenses as particularly serious crimes.” Gao, No. 07-2070, slip. op at 7.

In contrast, in Matter of N-A-M-, 24 I&N Dec. 336, 337 (BIA 2007), the BIA held that a PSC “need not be an aggravated felony.” Gao, No. 07-2070, slip. op at 7. In Matter of N-A-M-, the BIA explained that the second sentence “means only that aggravated felonies for which sentences of less than 5 years’ imprisonment were imposed may be found to be particularly serious crimes, not that only aggravated felonies may be found to be such crimes.” Gao, No. 07-2070, slip. op at 7 (quoting Matter of N-A-M-, 24 I&N Dec. at 341).

Relying on the deference that courts are required to give to administrative agencies, including the BIA, the Fourth Circuit disagreed with Gao and instead adopted the BIA’s position announced in Matter of N-A-M-. Gao, No. 07-2070, slip. op at 7 (discussing deference required by Chevron U.S.A. Inc v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)).

First, the Fourth Circuit concluded that, as the BIA held, the second sentence of this passage merely clarifies the first. “That is, the second sentence clarifies that the previous sentence simply creates a per se category of particularly serious crimes, rather than the exclusive category.” Gao, No. 07-2070, slip. op at 8. It is within the BIA’s authority, therefore, to determine that crimes other than those referenced by the first sentence—“ an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years”—may be considered PSCs.

The Fourth Circuit approvingly noted two other justifications that the BIA has given for its reading of the INA’s PSC provisions—one based in effect on the administrative equivalent of stare decisis and the second based on legislative intent. First, “[s]ince Congress first enacted the provision in 1980, the BIA’s ‘consistent practice’ has ‘reflected an understanding’ that particularly serious crimes need not be aggravated felonies. And despite the fact that Congress has amended the statute several times, it has never limited the concept of particularly serious crimes to aggravated felonies.” Gao, No. 07-2070, slip. op at 9 (quoting Matter of N-A-M-, 24 I&N Dec. at 338-41). In other words, the BIA has always interpreted the PSC passage quoted above as allowing it to find that offenses other than aggravated felonies constitute PSCs and the Fourth Circuit did not see a need to disturb this consistency.

Importantly, the Fourth Circuit did not mention the rule of lenity that requires, in the immigration context, that ambiguous provisions be interpreted in favor of the non-citizen. The rule of lenity recognizes the harsh punishment that is deportation, especially for lawful permanent residents, and attempts to mitigate the frequency of its infliction when Congress did not clearly indicate its intent to enact a harsh statute.

Second, “the BIA noted that its reading was consistent with the purpose of the statute, which is to protect the public from dangerous individuals….Limiting particularly serious crimes to aggravated felonies would therefore ‘create[] a gap or loophole’ whereby individuals committing very serious crimes would remain eligible for withholding of removal, unless some other statutory exception happened to apply to them.” Gao, No. 07-2070, slip. op at 9 (quoting Matter of N-A-M-, 24 I&N Dec. at 341). Though the Fourth Circuit did not state as much, it would seem that this conclusion renders the PSC category of offense a catchall provision. Anything that is not deemed to be an aggravated felony may nonetheless preclude a person from eligibility for withholding because the BIA has wide latitude to declare it to be a PSC. This despite the fact that Congress has expressed no hesitancy in expanding the number and type of offenses deemed to be aggravated felonies since that category was introduced to immigration law in 1988.

This is particularly troubling in light of the BIA’s acknowledgment that Gao’s unlawful exporting conviction “is not a particularly serious crime on its face.” Gao, No. 07-2070, slip. op at 13. Rather, the unlawful export conviction rose to the level of PSC only because of the “national security implications” surrounding the conviction. Gao, No. 07-2070, slip. op at 13.

In a widely circulated published decision, the Ninth Circuit Court of Appeals held that indecent exposure in California, Cal. Penal Code § 314, is not categorically a crime involving moral turpitude. Ocegueda-Nuñez v. Holder, No. 06-70219, slip op. (Feb. 10, 2010) (Reinhardt, Bybee, and Smith). Judge Reinhardt wrote for the majority of the panel, joined by Judge Smith. Judge Bybee dissented.

Ocegueda Nuñez entered without inspection. Ocegueda-Nuñez, No. 06-70219, slip op. at 2377. He was later convicted of petty theft and, several years after that, indecent exposure. Ocegueda-Nuñez, No. 06-70219, slip op. at 2377. When finally placed into removal proceedings he applied for Cancellation of Removal for non-LPRs. Ocegueda-Nuñez, No. 06-70219, slip op. at 2377. The IJ determined that both offenses involved moral turpitude; therefore, Ocegueda Nuñez was statutorily ineligible for Cancellation. Ocegueda-Nuñez, No. 06-70219, slip op. at 2378.

Ocegueda Nuñez also raised a due process argument in his appeal to the BIA and the Ninth Circuit based on the IJ’s denial of an emergency motion to continue, but the Ninth Circuit did not reach this issue. Ocegueda-Nuñez, No. 06-70219, slip op. at 2379.

The Ninth Circuit’s sole concern was whether the indecent exposure conviction constituted a CIMT. Under the categorical approach to statutory interpretation, the court “must compare the elements of the crime to the generic definition of moral turpitude and ‘decide whether the conduct proscribed in the statute is broader than, and so does not categorically fall within, this generic definition.’” Ocegueda-Nuñez, No. 06-70219, slip op. at 2379 (quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir. 2008)).

The Supreme Court requires “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition” of moral turpitude. Ocegueda-Nuñez, No. 06-70219, slip op. at 2379 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). The Ninth Circuit panel’s majority then explained that this “realistic possibility” requirement “can be established by showing that, in at least one other case, ‘the state courts in fact did apply the statute in the special (nongeneric) manner….’” Ocegueda-Nuñez, No. 06-70219, slip op.at 2380 (quoting Nicanor-Romero, 523 F.3d at 1004-05).

By this standard,the existence of even one case in which a person has been convicted under California’s indecent exposure statute, § 314, of conduct that does not involve moral turpitude is sufficient to find that the offense is not categorically a CIMT. The Ninth Circuit did not consider the modified categorical approach because no records of conviction were submitted to the IJ. Ocegueda-Nuñez, No. 06-70219, slip op. at 2381.

Before beginning to consider the indecent exposure conviction, however, the majority devoted a good deal of effort to a sharp critique of the CIMT category as a whole. The majority first described the determination of what is moral turpitude as “a nebulous question.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2375. Morality, the majority added, “is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals….” Ocegueda-Nuñez, No. 06-70219, slip op. at 2376.

The majority recognized the difficulty of pinpointing a definition of moral turpitude as used in the INA. The phrase “moral turpitude,” according to the majority, contains “inherent ambiguity” and the only thing consistent about it is “the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2381. Because there are no “consistent or logical rules to follow as we determine whether a crime (other than one involving fraud) involves moral turpitude, our most useful guidance often comes from comparing the crime with others that we have previously deemed morally turpitudinous.” Ocegueda-Nuñez, No. 06-70219, slip op.at 2382.

The majority then turned to a comparison of California’s indecent exposure offense—including the types of actions that may lead to conviction for indecent exposure in California—to offenses that involve moral turpitude. As a threshold matter, the Ninth Circuit explained that California courts have limited the range of conduct punishable under the indecent exposure statute, § 314, to “sexually motivated”exposure. Ocegueda-Nuñez, No.06-70219, slip op. at 2387.

The question then becomes whether the three types of sexually motivated exposure punishable under § 314 all are morally turpitudinous. Ocegueda-Nuñez,No. 06-70219, slip op. at 2387. The Ninth Circuit examined each of these three types of exposure in turn.

The first two types of sexually motivated exposure punishable under § 314 are “exposure with the intent to sexually gratify oneself” or “for the purpose of sexual gratification of the viewer.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2388, 2389. Discussing a 1979 case in which a person was convicted for indecent exposure for nude dancing, the Ninth Circuit concluded that indecent exposure “as interpreted by the California courts…can be committed without any intention of harming anyone, it need not result in actual harm, and it does not necessarily involve a protected class of victim”—the types of crimes that have normally been held to involve moral turpitude. Ocegueda-Nuñez, No. 06-70219, slip op. at 2390 (discussing People v. Conway,162 Cal. Rptr. 877, 879 (Cal. App. Dep’t Super. Ct. 1979)). Though Conway was partially disapproved of by the California Supreme Court in a later case, the Ninth Circuit concluded that it “remains good law in relevant part….” Ocegueda-Nuñez, No. 06-70219, slip op. at 2390 n.8.

The Ninth Circuit panel’s majority then turned to the third type of sexually motivated exposure punishable under § 314—“exposure with the intent to sexually offend the viewer.” Ocegueda-Nuñez, No.06-70219, slip op. at 2392. The majority discussed two California state court cases. In the first case, People v. Archer, 119 Cal. Rptr. 2d 783 (Cal. Ct. App. 2002), “the California Court of Appeal upheld the conviction under § 314 of a defendant who, in a fit of ‘road rage,’ exposed his penis and yelled ‘suck my dick’ at an adjacent driver.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2393. In the second case, People v. Lionel M., No. H031030, 2007 WL 2924052 (Cal. Ct. App. Oct. 9, 2007) (unpublished), “the court upheld the conviction of a 12-year-old boy who pulled down his pants during class and showed his penis to two female classmates.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2393.

Though both acts were punishable under § 314, the majority concluded, “neither act could rationally be characterized as inherently base, vile and depraved.” Ocegueda-Nuñez, No. 06-70219, slip op.at 2394. “[O]ur society,” the majority added, “is past the point where transitory nudity or a brief reference to sex necessarily transforms another wise de minimis provocation into a morally turpitudinous offense.” Ocegueda-Nuñez, No. 06-70219, slip op.at 2395.

These cases, the majority concluded, show that there is a realistic probability that California would apply its indecent exposure statute to conduct that falls outside the generic definition of moral turpitude. Ocegueda-Nuñez, No. 06-70219, slip op. at 2395.

In a published decision, the BIA held that an Immigration Judge may, in performing a modified categorical analysis, consider a police report from an underlying criminal conviction when the police report formed part of the factual basis of the conviction. Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA Feb. 19, 2010) (Grant, Miller, and Malphrus). Board member Malphrus wrote the panel’s decision.

This case involved an LPR placed into removal proceedings due to a conviction for an alleged domestic violence aggravated felony under INA § 237(a)(2)(E)(i). “The Immigration Judge determined that the respondent’s record of conviction consisted of the criminal complaint and the guilty plea, and he concluded that these documents did not provide sufficient evidence to establish that the respondent was convicted of a crime of violence.” Matter of Milian-Dubon, 25 I&N Dec. at 198. The IJ declined to consider the police report. The record of conviction in this case, the BIA stated, consisted of the criminal complaint and the guilty plea. Matter of Milian-Dubon, 25 I&N Dec. at 200. Accordingly, the IJ terminated proceedings. DHS appealed, arguing, “that the Immigration Judge erred in excluding from his ‘modified categorical’ analysis of the respondent’s conviction a police report that formed the factual basis for his guilty plea.” Matter of Milian-Dubon, 25 I&N Dec. at 198.

In reaching its holding, the Board first noted that the modified categorical approach allows an IJ to look “beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings.” Matter of Milian-Dubon, 25 I&N Dec. at 199.

Importantly, “[t]he signed guilty plea reflects that the respondent…stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea.” Matter of Milian-Dubon, 25 I&N Dec. at 200. The non-citizen’s stipulation regarding the police report proved to be the critical fact in the BIA’s decision.

The Board acknowledged the longstanding position enunciated in Matter of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996), that a police report does not form part of the record of conviction. In that very sentence, however, the Board went on to limit Matter of Teixeira in a manner that may have a substantial impact on many non-citizens. “[T]he respondent’s decision to incorporate the police report into the guilty plea made the report an explicit statement in which the factual basis for the plea was confirmed by the respondent.” Matter of Milian-Dubon, 25 I&N Dec. at 200 (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005) (internal quotations omitted)).

The Board disagreed with Milian-Dubon’s argument “that the police report should not be considered because it was never admitted into the record of his criminal proceedings or incorporated into the criminal complaint.” Matter of Milian-Dubon, 25 I&N Dec. at 201. The police report should be considered as part of the record of conviction, the Board announced, because it was referenced in the plea agreement “as the ‘factual basis’ for the respondent’s plea.” Matter of Milian-Dubon, 25 I&N Dec. at 201. “It was not necessary for the respondent to acknowledge the truth of every statement in the police report or for the judge in the criminal case to have specifically reviewed or referenced the report during the plea proceedings.” Matter of Milian-Dubon, 25 I&N Dec. at 201.

The Board then added that the police report did not have to come from the files of the criminal case. Matter of Milian-Dubon, 25 I&N Dec. at 202. The Board did not state where the police report in this case came from, but it suggested that this is irrelevant. “The only requirement is that the police report or reports relied on in the immigration proceedings be incorporated by reference as at least part of the factual basis for the guilty plea.” Matter of Milian-Dubon, 25 I&N Dec. at 202.

This decision adds one more obstacle to defending individuals in removal proceedings. It also raises—yet again—the importance of criminal defense attorneys and immigration attorneys working hand-in-hand from the very early stages of the criminal process.

In an unpublished decision, the U.S. District Court for the District of New Jersey held that the Court may consider granting habeas relief to an individual detained by the Department of Homeland Security under the INA’s mandatory detention provision. Akinola v. Weber, No. 09-3415, slip op. (D.N.J. Jan. 26, 2010). Judge William J. Martini issued the opinion and order.

This case involved a non-citizen held by DHS pending removal proceedings. Akinola, No. 09-3415, slip op. at 1. Akinola was subject to mandatory detention under INA § 236(c) due to several criminal convictions. Akinola v. Weber, No. 09-3415, slip op. at 3-4. Akinola was issued a Notice to Appear on August 25, 2008. After several delays—some attributable to Akinola and others to the government—a hearing was held on May 20, 2009. Akinola v. Weber, No. 09-3415, slip op. at 4-5. At that hearing, the Immigration Judge denied Akinola’s asylum, withholding of removal, and Convention Against Torture claims. Akinola v. Weber, No. 09-3415, slip op. at 5. The IJ did, however, grant Deferral of Removal. Akinola v. Weber, No. 09-3415, slip op. at 5.

Though Akinola and the government reserved their right to appeal, Akinola did not appeal. The government, however, did appeal the Deferral of Removal determination. Akinola v. Weber, No. 09-3415, slip op. at 5. While the government’s appeal went forward, Akinola met with a deportation officer in an effort to facilitate his Deferral of Removal. Akinola v. Weber, No. 09-3415, slip op. at 6-7.

Akinola filed a petition for a writ of habeas corpus with the federal district court on or about July 13, 2009. Akinola v. Weber, No. 09-3415, slip op. at 7. On October 16, 2009, the BIA issued its decision on the government’s appeal in favor of the government and remanded it to the IJ. Akinola v. Weber, No. 09-3415, slip op. at 7. Though the remanded removal proceedings were initially scheduled for November 24, 2009, for a reason not specified in this decision, a merits hearing was continued to January 25, 2010. Akinola v. Weber, No. 09-3415, slip op. at 8. “By that time, Akinola states that he will have been in detention for more than seventeen (17) months.” Akinola v. Weber, No. 09-3415, slip op. at 8.

After quickly dismissing Akinola’s contention that he was not subject to the mandatory detention provision because he was no longer in removal proceedings, the Court turned to “whether Akinola has established that he is being subjected to an unreasonably prolonged detention under [8 U.S.C.] § 1226(c) [INA § 236(c)] in violation of his right to due process.” Akinola v. Weber, No. 09-3415, slip op. at 10, 11.

Judge Martini first pointed out that the Supreme Court’s decision Demore v. Kim, 538 U.S. 510 (2003), held that mandatory detention during removal proceedings is constitutionally permissible. Akinola v. Weber, No. 09-3415, slip op. at 12.

The Court then provided a clear interpretation of how far Demore’s holding extends:

“In Demore, the Supreme Court recognized that § 1226(c) was intended only to ‘govern [] detention of deportable criminal aliens pending their removal proceedings,’ which the Court stressed typically ‘lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal’ his removal order to the BIA.” Akinola v. Weber, No. 09-3415, slip op. at 13 (quoting Demore, 538 U.S. at 527-28).

The Demore Court, Judge Martini explained later, “did not expressly contemplate the constitutionality of such prolonged detention” as experienced by Akinola. Akinola v. Weber, No. 09-3415, slip op. at 14.

Judge Martini was swayed by the fact that Akinola has been detained well over the 1.5 months found “typical” in Demore and more than the five months for cases that are appealed. Akinola’s detention, the Court explained, “has been prolonged for more than eight months [after the IJ issued the removal order], and continues to run because the Government chose to appeal deferral of removal.” Akinola v. Weber, No. 09-3415, slip op. at 13-14. Judge Martini explained that he was “mindful” that the government appealed to the BIA, not Akinola. Akinola v. Weber, No. 09-3415, slip op. at 14.

For these reasons the Court was not convinced that § 236(c) provided sufficient authority to continue to detain Akinola. As such, the Court ordered a hearing in the federal court to determine whether Akinola should be released. “At the time of the hearing, Respondents [the government] shall be prepared to provide justification for Akinola’s continued detention, including, but not limited to, evidence demonstrating his potential risk of flight and potential danger to the community in the event he is ordered released.” Akinola v. Weber, No. 09-3415, slip op. at 14-15.

This is another great victory. Judge Martini followed in the footsteps of a small but growing number of federal district courts that have imposed constitutional limits on DHS’s ability to keep people detained indefinitely under § 236(c) pending removal proceedings. Hopefully this growing body of cases will provide support for more federal district courts to take this courageous position.

In a Case Comment appearing in the latest issue of the Suffolk University Law Review, Lauren P. Gearty argues that the Supreme Court should disagree with the Fifth Circuit’s holding in Carachuri-Rosendo v. Holder, 570 F.3d 263, 267-68 (5th Cir. 2009) (discussing United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008)), “that a second possession offense may constitute an aggravated felony regardless of whether an alien is charged or convicted as a recidivist offender.” Lauren P. Gearty, Immigration Law-Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony Recidivist Prosecution, 43 Suff. L. Rev. 277, 280-81 (2010).

Gearty’s eight-page article provides a succinct overview of the circuit split that currently exists regarding subsequent possession convictions. The Fifth and Seventh Circuits consider a subsequent conviction to constitute an illicit trafficking form of aggravated felony. INA § 101(a)(43)(B). In contrast, “[t]he First, Third, and Sixth Circuits agree with the BIA that a second possession offense is not automatically a recidivist offense and therefore not an aggravated felony for immigration purposes.” Gearty at 280.

The disagreement, as Gearty explains, stems from the Supreme Court’s announcement in Lopez v. Gonzales, 549 U.S. 47, 60 (2006), that “[a] state misdemeanor drug offense is an aggravated felony if that offense would constitute a felony had it been charged under the Federal Controlled Substance Act (CSA).” Gearty at 277. The Lopez Court undeniably held that a single simple possession offense cannot be considered an aggravated felony. 549 U.S. at 60. In a footnote, however, the Court explained that recidivist possession convictions can be considered aggravated felonies. Lopez, 549 U.S. at 60 n.6.

The critical question then becomes how to determine whether a possession offense is a recidivist offense. The First, Third, and Sixth Circuits, as well as the BIA, as Gearty explains, “determined that this increased sentence [based on recidivist offenses] is only applicable if an alien admits or a judge or jury determines that the alien is a recidivist offender.” Gearty at 280. That is, these courts will only consider a second or subsequent possession to be an aggravated felony if the judge or jury at the criminal trial explicitly found that the non-citizen was a recidivist offender. In contrast, the Fifth and Seventh Circuits will consider a subsequent possession offense even where the prosecution never attempted to have the judge or jury find that the non-citizen is a recidivist offender. In these circuits, DHS counsel seems need to show that the non-citizen has been convicted of two or more simple possession convictions to render the non-citizen an aggravated felon.

This is a pressing issue that affects many individuals in removal proceedings. Gearty’s article provides helpful background in anticipation of the Supreme Court’s decision this summer. The Supreme Court granted certiorari on December 14, 2009. Oral arguments are scheduled for March 31, 2010. Briefs are available on ScotusWiki.

Last week the Ninth Circuit Court of Appeals held that it lacked jurisdiction to review a denial of a § 212(i) waiver that was denied on discretionary grounds and that a § 237(a)(1)(H) waiver requires consideration of the applicant’s admissibility at the time the fraud was committed. Corona-Mendez v. Holder, No. 08-72492, slip op. (9th Cir. Feb. 3, 2010) (Cudahy, Rawlinson, and Callahan). Judge Cudahy wrote for the panel.

This case involved a Mexican citizen who first entered the USA unlawfully in 1956. In 1993 he was arrested for driving under the influence. While imprisoned he was questioned by agents of the legacy INS who, presumably, learned of his undocumented status. He was subsequently ordered removed by an Immigration Judge. He returned to the USA unlawfully in 1993 or 1994.

“In 1996, he applied for and received lawful permanent resident status. He filled out the application with the assistance of his wife and son and did not indicate that he had been deported. In 2003, he applied to become a naturalized citizen but again did not indicate that he had been deported.”

He was placed into removal proceedings in 2005. Corona-Mendez, No. 08-72492, slip op. at 2049.

Corona-Mendez conceded removability, but sought

“relief based on a combination of an I-212 waiver for a nunc pro tunc (retroactive) grant of permission to reapply for admission into the United States in conjunction with either (1) a waiver of deportability for fraud under INA § 237(a)(1)(H)…; or (2) an adjustment of status predicated on a waiver of inadmissibility for fraud or willful misrepresentation of a material fact if the alien demonstrates extreme hardship to the alien’s citizen or lawfully resident spouse or parent under INA § 212(i)….” Corona-Mendez, No. 08-72492, slip op. at 2050.

The Ninth Circuit addressed each of Corona-Mendez’s waiver arguments separately.

The Ninth Circuit quickly disposed of Corona-Mendez’s claim for a § 212(i) waiver. Corona-Mendez, No. 08-72492, slip op. at 2051. The IJ initially denied the § 212(i) waiver on discretion, concluding that Corona-Mendez “had not demonstrated that his removal would result in the requisite [extreme] hardship to his legal permanent resident wife.” Corona-Mendez, No. 08-72492, slip op. at 2050. The BIA affirmed the IJ’s denial on discretion. Corona-Mendez, No. 08-72492, slip op. at 2050. The Ninth Circuit impliedly agreed that this was within the IJ and BIA’s discretionary authority. As such, it simply stated, “No court has jurisdiction to review any judgment granting relief under 212(i), or other provisions for which decision is committed to the discretion of the Attorney General or the Secretary of Homeland Security….” Corona-Mendez, No. 08-72492, slip op. at 2051.

The Ninth Circuit then turned to Corona-Mendez’s request for a waiver under § 237(a)(1)(H). “To qualify for the 237(a)(1)(H) waiver, an alien must be, apart from the fraud or misrepresentation, ‘otherwise admissible’….” Corona-Mendez, No. 08-72492, slip op. at 2052 (citing INS v. Yueh-Shaio Yang, 519 U.S. 26, 31-32 (1996)). The Ninth Circuit held that the proper focus of a court considering whether to grant a § 237(a)(1)(H) waiver is the applicant’s admissibility at the time the fraud or misrepresentation was committed: “We hold that 237(a)(1)(H) requires that the court consider whether the petitioner is inadmissible on more than one ground at the time of the fraud the petitioner seeks waived.” Corona-Mendez, No. 08-72492, slip op. at 2053.

The Ninth Circuit explained that this time period is the proper focus of the § 237(a)(1)(H) waiver inquiry because this waiver is intended to benefit individuals who will be rendered “‘otherwise admissible’ as of the time the fraud it excuses transpired.” In effect, the Ninth Circuit’s ruling limits § 237(a)(1)(H) waivers to individuals who, at the time they committed the fraud that they seek to excuse, were not subject to any other ground of inadmissibility. Corona-Mendez, No. 08-72492, slip op. at 2054.

Since Corona-Mendez was subject to the 10-year bar for having returned unlawfully after having been removed, he was not otherwise admissible at the time that he failed to state on his LPR application that he had been removed. Therefore, Corona-Mendez was not eligible to receive a § 237(a)(1)(H) waiver. Corona-Mendez, No. 08-72492, slip op. at 2054.

The Sixth Circuit Court of Appeals recently held that former INA § 212(c) was repealed and never reinstated for people who were convicted after a trial. Kellermann v. Holder, No. 08-3927, slip op. (6th Cir. Jan. 25, 2010) (Norris, Cole, and Adams). Judge Adams wrote for the three-judge panel. 

This case concerned a lawful permanent resident who was convicted in 1992 “of making false statements to an agency of the United States and conspiracy to defraud the United States in violation of 18 U.S.C. §§ 371 and 1001.” Kellermann, No. 08-3927, slip op. at 2.The IJ determined that Kellermann was not eligible for relief under former §212(c) “because he did not enter a guilty plea, but was convicted by a jury.” Kellermann, No. 08-3927, slip op. at 3.

In reaching a determination, the Sixth Circuit reviewed § 212(c)’s contentious history.

“Section 212(c), before it was repealed by the Illegal Immigration Reform and Immigrant Responsibility Actof 1996 (“IIRIRA”), Pub.L. 104-208,  110 Stat. 3009 (1996), allowed the Attorney General to readmit to the United States another wise inadmissible permanent resident alien under certain conditions, but did not allow the Attorney General to admit such an alien if he had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least 5 years.” Kellermann, No. 08-3927, slip op. at 8-9.

The Sixth Circuit then turned to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), in which “the Supreme Court held that INA § 212(c) relief‘remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.’” Kellermann, No. 08-3927, slip op. at 9 (quoting St. Cyr, 533 U.S. at 326). The St. Cyr Court expressed concern about the quid pro quo nature of plea bargaining and the harmful effects that would result if Congress retroactively repealed § 212(c) relief for people who entered into plea agreements after relying on a plea agreement.

Though St. Cyr only referenced convictions that resulted from reliance on plea agreements several circuits have considered whether the St. Cyr holding includes convictions that resulted from a trial. As the Sixth Circuit’s review indicates, there is a sharp circuit split on this issue. The Second,Third, Fifth, and Tenth Circuits have found that, after St. Cyr, relief is available under former § 212(c) for individuals who were convicted after a trial. Kellermann, No. 08-3927, slip op. at 9-10 (reviewing cases from the Second, Third, Fifth,and Tenth Circuits). In contrast, “seven circuit courts have held that aliens who proceeded to trial are not entitled to apply for relief under former §212(c) after its repeal.” Kellermann, No. 08-3927, slip op. at 10 (reviewing cases from the First, Second, Fourth,Fifth, Seventh, Ninth, and Eleventh Circuits).

The Sixth Circuit quoted favorably from the Eleventh Circuit’s decision in Ferguson v. Att’y Gen., 563 F.3d 1254,1271 (11th Cir. 2009), in which the Ferguson Court referenced the role of reliance in maintaining § 212(c) relief before adding: “Ferguson did not plead guilty but was convicted by a jury. And aside from her decision to go to trial, she points to no other ‘transactions’ or‘considerations already past’ on which she relied.” Kellermann, No. 08-3927, slip op. at 10-11. The Sixth Circuit apparently found this reasoning persuasive because it concluded:

“We conclude that IIRIRA’s repeal of § 212(c) does not have an impermissible retroactive effect on Dr. Kellermann because, in choosing to proceed to trial, he did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief….[W]e find the reasoningof the majority of circuits persuasive and now join them in declining to extend St. Cyr, to aliens, like the petitioner, who, prior to the repeal of §212(c), were convicted after a trial.”

This is an issue that’s ripe for Supreme Court review.

In a decision released last week, the Ninth Circuit Court of Appeals held that a suspended non-incarceratory sanction cannot be a predicate for a “conviction” as that term is defined by INA § 101(a)(48). Retuta v. Holder, No. 04-74855, slip op. (9th Cir. Jan. 7, 2010) (Fletcher, Clifton, Pollack). Judge Pollack wrote the panel's decision.

Retuta is a lawful permanent resident who pled guilty to possession of a controlled substance in violation of California Health and Safety Code § 11377(a). He was not sentenced to any term of imprisonment. He was ordered to pay a “fine” of $100; payment of this fine was suspended. Retuta argued that the suspended fine does not constitute “some form of punishment, penalty, or restraint on the alien's liberty” as required by INA § 101(a)(48)(A)(ii).

The Ninth Circuit largely agreed with Retuta. Retuta, No. 04-74855, slip op. at 511.

The full text of § 101(a)(48)(ii) provides: (A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. (B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

First, the Ninth Circuit determined that § 101(a)(48)(A) “does not include suspended non-incarceratory punishments.” Retuta, No. 04-74855, slip op. at 511. To reach this conclusion, the Ninth Circuit examined the legislative history of § 101(a)(48)(A)(ii). Retuta, No. 04-74855, slip op. at 511. This section, the Court explained, is borrowed verbatim from part of the BIA's decision in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). Ozkok, the Ninth Circuit noted, “included several minor sanctions” as “exemplars” of the punishment, penalty, or restraint required to constitute a conviction—revocation or suspension of a driver's license, deprivation of nonessential activities, or community service. Retuta, No. 04-74855, slip op. at 511. These exemplars, however, were omitted from the INA when Congress adopted verbatim the phrase “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Retuta, No. 04-74855, slip op. at 511. As such, Congress could not have meant to include an even less serious penalty—a suspended fine—like that imposed on Retuta. Indeed, Retuta, the Court found, “suffered no loss of wealth, nor loss of liberty.” Retuta, No. 04-74855, slip op. at 511.

Second, Congress clearly addressed the role of suspended sanctions in satisfying the INA's conviction definition in § 101(a)(48)(B). Retuta, No. 04-74855, slip op. at 512. Congress, however, only included suspended sentences involving imprisonment within the definition of conviction. INA § 101(a)(48)(B). To the Ninth Circuit, this meant that sentences not involving incarceration cannot come within the conviction definition. Retuta, No. 04-74855, slip op. at 512.

In short, the Ninth Circuit “h[e]ld that an unconditional suspended nonincarceratory sanction that has no present effect is not a punishment, penalty, or restraint of liberty under 8 U.S.C. § 1101(a)(48) [INA § 101(a)(48)(A).” Retuta, No. 04-74855, slip op. at 514.

In a published decision released last week, the First Circuit Court of Appeals held that the mandatory detention provision, INA § 236(c), 8 U.S.C. § 1226(c), applies only when a person is released from custody for a removable offense enumerated in § 236(c). Saysana v. Gillen, No. 09-1179, slip op. (1st Cir. Dec. 22, 2009) (Howard, Ripple, Selya). Judge Ripple wrote the decision for the unanimous panel.

This decision overrules the BIA's precedential decision in Matter of Saysana, 24 I&N Dec. 602 (BIA 2008). In Matter of Saysana, the Board held that the mandatory detention provision applied to any non-citizen with a qualifying conviction who was released from any criminal custody after October 8, 1998. The First Circuit's holding is much narrower than the Board's meaning that fewer people will be subject to mandatory detention within the First Circuit.

Saysana was convicted in 1990 of indecent assault and battery in Massachusetts. He was released in 1991. In 2005, he was again arrested, but this charge was dismissed he was released from state custody. Saysana, No. 09-1179, slip op. at 2-3. In 2007, ICE took Saysana into custody pursuant to INA § 236(c) and initiated removal proceedings based on the 1990 conviction. Saysana, No. 09-1179, slip op. at 3.

After the IJ granted Saysana a bond, the DHS appealed. Saysana, No. 09-1179, slip op. at 3. The Board sided with DHS in Matter of Saysana.

The First Circuit was required to determine

whether the mandatory detention provision applies only when an alien is released from a criminal custody the basis for which is one of the offenses listed in § 1226(c)(1)(A)-(D); or, alternatively, whether it applies whenever an alien, previously convicted of an offense that falls within (c)(1)(A)-(D), is released from any criminal custody regardless of the reason for that detention. Saysana, No. 09-1179, slip op. at 7.

Under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), the First Circuit must defer to the BIA's interpretation of INA § 236(c) if the statutory provision is ambiguous and the BIA's interpretation of that ambiguous provision is reasonable. Saysana, No. 09-1179, slip op. at 9-10.

The First Circuit determined that INA § 236(c) is unambiguous. “In our view, a natural reading of the statutory provision from top to bottom makes clear that the congressional requirement of mandatory detention is addressed to the situation of an alien who is released from custody for one of the enumerated offenses.” Saysana, No. 09-1179, slip op. at 11-12. That is, “the statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody.” Saysana, No. 09-1179, slip op. at 22.

Though the First Circuit did not need to address the reasonableness of the Board's interpretation, it nonetheless did so. Saysana, No. 09-1179, slip op. at 18. The First Circuit determined that the BIA's interpretation is not reasonable. Saysana, No. 09-1179, slip op. at 18.

Federal district courts laid the groundwork for this decision. Let's hope that other circuits adopt the First Circuit's reasoning instead of the BIA's position.