crImmigration.com

Scholars Sidebar: Cheering for the Criminal Alien

2012-02-09T09:00:00Z

Last week’s arrest of Cleveland Indians pitcher Fausto Carmona suggests that the Indians lineup card might need a makeover. The right-hander who won 19 games for Cleveland in 2007 and 13 in 2010 might not be who he says he is. Dominican authorities claim he’s actually 31-year-old Roberto Hernández Heredia, not the 28-year-old the Indians think he is.

The Dominican legal process has yet to run its course, but it doesn’t come as a surprise to baseball fans that a major league player has been accused of passing himself off as someone else. Life as a major leaguer earning millions of dollars is a powerful incentive and there is no shortage of highly talented impoverished teenagers willing to invent a younger self for the opportunity to realize that dream.

But as Carmona quickly learned last week, that dream can suddenly collapse. Not only is his $7 million salary for next season on hold, he’s likely to have difficulty getting back into the country once he settles his legal troubles in the Dominican Republic. Even assuming the Indians want a 31-year-old Heredia as much as a 28-year-old Carmona, U.S. immigration law might have a more powerful role dictating whether Cleveland fans get to see this former All Star in the lineup.

Carmona has been accused of knowingly lying about his name and age in violation of Dominican law. In a word, he has been accused of fraud. As an immigrant, it is up to him to prove that he is eligible to be admitted into the United States, including that he has not been convicted of a “crime involving moral turpitude.” Anyone who is not a U.S. citizen who has been convicted of a crime involving moral turpitude is barred from entering the country, unless they can convince the government to make an exception.

Part of immigration law since 1891, the moral turpitude provision includes all manner of crimes. It “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general,” according to the immigration appellate court. At one time or another, turnstile jumping, writing a bad check, and using another name on U.S. passport application have been considered inherently base, vile, or depraved.

Carmona’s identity fraud charge seems to fall right at the core of the moral turpitude provision. In a 1951 decision, the Supreme Court explained, “crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.” If the allegations are true, then Carmona lied about his identity for the very purpose of defrauding the Indians.

This would make him one of the more famous “criminal aliens” that the Department of Homeland Security and immigration restrictionists decry so frequently. In fiscal year 2010, DHS reported, it removed 168,532 “criminal aliens.” Many, like Carmona, have done nothing that would make most of us fear for our safety.

Few people would not invent a younger self for the chance to work hard playing a game they love under the bright lights of a major league ballpark and making millions upon millions of dollars in the process. Fewer still would judge a poor kid with no other way of escaping poverty who does that.

But the “criminal alien” of DHS statistics and restrictionists’ rhetoric makes no allowance for subtlety. Neither does immigration law. Among the 168,532 “criminal aliens” that DHS points to as evidence of its success making our communities safer are 30,808 convicted of traffic violations and 31,585 convicted of immigration-related crimes. Another 3,849 were convicted of fraudulent activities.

It might be time to add Carmona to that tally. If that happens, the only people who might sleep more comfortably are opposing batters. The rest of us, Indians fans or not, are unlikely to reap much benefit from having his $7 million arm and the taxes it accumulates stuck in the Dominican Republic.

***This appeared as a letter to the editor in the web edition of the Columbus Dispatch on February 7, 2012 with the title "Identity Fraud."

BIA: Service of NTA triggers cancellation of removal stop-time rule even if hearing time or date not provided

2012-02-07T09:00:00Z

The BIA held that the stop-time rule that stops accrual of continuous physical presence or continuous residence for purposes of cancellation of removal is triggered upon service of a notice to appear (NTA) even if the NTA does not state the time or date of the removal hearing. Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011) (Miller, Malphrus, and Mullane, Board members). Board member Malphrus wrote the panel’s decision.

This case involved an LPR who was served an NTA that stated “To be set” instead of a particular date and time for a hearing. Matter of Camarillo, 25 I&N Dec. at 644. The immigration judge determined that the NTA had not been served for purposes of the cancellation stop-time rule.

The “stop-time” rule ends the period of continuous physical presence or continuous residence that is required for cancellation eligibility. INA § 240A(d)(1). It is triggered, according to the statutory text, “when the alien is served a notice to appear under section 239(a)….” INA § 240A(d)(1). Section 239(a) in turn provides that “written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the alien…specifying the following:…(G)(i) The time and place at which the proceedings will be held,” among other requirements.

The IJ concluded that all the requirements listed in INA § 239(a), including the time and place of the hearing, must be provided to the noncitizen for the NTA to trigger the stop-time rule. That did not happen until almost two years later when the immigration court issued a notice of hearing informing the respondent of the actual date and time of her removal hearing. As such, the IJ concluded that the NTA did not trigger the stop-time rule until the notice of hearing was sent. Matter of Camarillo, 25 I&N Dec. at 645. This two-year wait would have provided Camarillo sufficient time in the United States to meet the seven years continuous residence requirement for cancellation eligibility. Matter of Camarillo, 25 I&N Dec. at 645.

The BIA disagreed. The primary purpose of the NTA service requirement, the panel explained, is to notify the respondent of the government’s intent to initiate removal proceedings; the lack of a date and time for a hearing does not affect the government’s effort to communicate that intent through serving the NTA. Matter of Camarillo, 25 I&N Dec. at 650. It is at the moment of service, the Board added, that Congress intended the continuous residence or physical presence to cease accumulating. Matter of Camarillo, 25 I&N Dec. at 650.

Accordingly, “[w]e hold that under section 240A(d)(1) of the Act, any period of continuous residence or continuous physical presence of an alien applying for cancellation of removal under section 240A is deemed to end upon the service of a notice to appear on the alien, even if the notice to appear does not include the date and time of the initial hearing.” Matter of Camarillo, 25 I&N Dec. at 652.

As an aside, it’s interesting to note that the BIA explicitly characterized the stop-time rule statutory language as ambiguous, Matter of Camarillo, 25 I&N Dec. at 647, and its interpretation of this language as “a reasonable choice within a gap left open by Congress.” Matter of Camarillo, 25 I&N Dec. at 651. This, perhaps, is an attempt to sway federal courts that are asked to review the BIA’s interpretation. Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), a reviewing federal court must defer to an administrative agency’s reasonable interpretation of an ambiguous statute that is within its area of specialization—including the BIA’s interpretation of INA provisions.

The BIA’s effort, however, seems nothing more than amusing. I’m skeptical that a federal court would defer to the BIA’s characterization of an INA provision as ambiguous or its interpretation as reasonable. Perhaps we will have opportunity to test my skepticism soon as the case has reportedly been appealed to the Fifth Circuit.

4 Cir: Rejects Silva-Treviño moral turpitude framework

2012-02-02T09:00:00Z

Following a growing list of courts of appeals, the U.S. Court of Appeals for the Fourth Circuit rejected Matter of Silva-Treviño’s framework for determining whether a crime involves moral turpitude. Prudencio v. Holder, No. 10-2382, slip op. (4th Cir. Jan. 30, 2012) (Traxler, Shedd, and Keenan, JJ.). Judge Keenan wrote the panel’s majority opinion; Judge Shedd dissented.

This case involved an LPR who pleaded guilty to contributing to the delinquency of a minor, Va. Code § 18.2-371. Applying Silva-Treviño’s three-part framework, the IJ held that this offense constituted a CIMT; the BIA affirmed. Prudencio, No. 10-2382, slip op. at 2, 6.

In Silva-Treviño, Attorney General Mukasey, who certified the case to himself from the BIA, altered the longstanding process for determining whether a crime involves moral turpitude. Rather than limit the IJ’s analysis to the categorical and modified categorical approach, the AG added a third prong under which the IJ can consider a wide range of information.

As the Board explained in a subsequent case,

“Pursuant to Matter of Silva-Trevino, the first stage of the analysis employs a categorical approach, under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a ‘realistic probability’ of being prosecuted under that statute. If the issue cannot be resolved under the categorical approach, the second stage involves a modified categorical inquiry, which requires inspection of specific documents comprising the alien’s record of conviction to discern the nature of the underlying conviction. Finally, if the record of conviction is inconclusive, the Attorney General has held that because moral turpitude is not an element of an offense, evidence beyond the record of conviction may be considered when evaluating whether an alien’s crime involved moral turpitude.”

Matter of Ruiz-Lopez, 25 I&N Dec. 551, 553 (BIA 2011).

The AG explained that he had the power to identify the proper framework for determining whether a crime involves moral turpitude because the CIMT statutory provision is ambiguous. Specifically, as the Fourth Circuit relays,

“certain language, such as the use of the word ‘convicted’ rather than ‘committed’ at the beginning of the statute, suggests that the inquiry should be categorical and should focus on the statutory elements required for conviction, rather than on the particular facts of an individual crime. He asserted that other language, however, ‘seems to call for, or at least allow, inquiry into the particularized facts of the crime.’ In support of this latter proposition, the Attorney General identified two statutory references: (1) the use of the word ‘involving,’ and (2) the language regarding aliens who admit to ‘committing’ certain ‘acts.’”

Prudencio, No. 10-2382, slip op. at 9-10.

The Fourth Circuit disagreed with the AG’s rationale. The “admit to committing certain acts” language, the court explained, is irrelevant “[b]ecause there are no admissions at issue in the present case, and likewise were none at issue in Silva-Treviño….” Prudencio, No. 10-2382, slip op. at 12.

Furthermore, “[t]he word ‘involving’ must be considered in its statutory context.... [It] cannot be divorced from the unitary phrase ‘crime involving moral turpitude’….” Prudencio, No. 10-2382, slip op. at 13. Considering it as part of the “crime involving moral turpitude” phrase, the court added, makes the word “involving” “no more expansive than the use of the word ‘of’ in the term ‘crime of violence.’” Prudencio, No. 10-2382, slip op. at 13.

What’s more, the Fourth Circuit went on, the AG’s position that the term “conviction” in the CIMT statutory provision is used more expansively than “conviction” is used in other INA sections (where it has been interpreted to mean that the IJ must rely solely on the categorical and modified categorical approach to determine whether a particular crime falls into the relevant category of removal offenses) “lacks both logic and statutory support.” Prudencio, No. 10-2382, slip op. at 14.

The bottom line, therefore, is “that the plain language of the moral turpitude statute is not ambiguous.” Prudencio, No. 10-2382, slip op. at 14. Indeed, “the statute unambiguously directs that an adjudicator consider only the conviction itself, and not any underlying conduct.” Prudencio, No. 10-2382, slip op. at 14.

Silva-Treviño is no more in the Fourth Circuit. Applying the categorical and modified categorical approach to the Virginia delinquency statute, the court determined that this is a divisible statute--that is, it punishes some acts that involve moral turpitude and others that do not. Thus, DHS did not satisfy its burden that Prudencio was convicted of a CIMT. Prudencio, No. 10-2382, slip op. at 20, 21.

8 Cir: Warrantless arrest isn’t egregious 4th Amend violation meriting suppression

2012-01-31T09:00:00Z

The U.S. Court of Appeals for the Eighth Circuit rejected a non-citizen’s attempt to exclude evidence of his identity obtained after a warrantless arrest. Garcia-Torres v. Holder, No. 10-2307, slip op. (8th Cir. 2011) (Loken, Colloton, and Nelson, JJ.). District Judge Nelson, sitting by designation on the Eighth Circuit, wrote the panel’s opinion.

This case involved an entrant without inspection who was present at a Missouri restaurant that local police officers “acting on a tip that alcohol was being consumed in violation of a local ordinance” entered without a warrant. Garcia-Torres, No. 10-2307, slip op. at 2. García-Torres and other individuals were arrested. The local prosecutor decided not to file any charges against García-Torres because of a lack of probable cause for the arrest. Garcia-Torres, No. 10-2307, slip op. at 2. Despite this, ICE soon took custody of García-Torres upon suspicion that he was in the country without authorization. Garcia-Torres, No. 10-2307, slip op. at 2.

In removal proceedings, García-Torres moved to suppress the I-213 Record of Deportable/Inadmissible Alien and all evidence obtained as a result of the arrest at the restaurant including his identity. Garcia-Torres, No. 10-2307, slip op. at 2. The IJ denied the motion and the BIA affirmed. Garcia-Torres, No. 10-2307, slip op. at 2.

The U.S. Supreme Court has long held that suppression is typically reserved for criminal proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Suppression might be appropriate in immigration proceedings, the Lopez-Mendoza Court added, only in rare circumstances involving an “egregious” violation of a constitutional right. Lopez-Mendoza, 468 U.S. at 1051.

García-Torres argued that his arrest constituted “an egregious, bad faith violation of the Fourth Amendment prohibition against unreasonable searches and seizures,” thus it merited suppression. Garcia-Torres, No. 10-2307, slip op. at 3 (internal citations omitted).

The Eighth Circuit disagreed. Assuming without deciding that an egregious violation of the Fourth Amendment by state or local police officers can be the basis of exclusion in federal immigration proceedings (about which the Eighth Circuit “has expressed doubt”), the court determined that the warrantless arrest initiated upon an informant’s tip is “nothing more than a warrantless entry of business premises and arrest, mere garden-variety error, if a Fourth Amendment violation at all.” Garcia-Torres, No. 10-2307, slip op. at 5. By no means, the court went on, is such a violation “egregious.” Garcia-Torres, No. 10-2307, slip op. at 6.

The court did not provide more detail on what might constitute an egregious violation. It did, however, “decline to adopt the Ninth Circuit’s standard that [García-Torres] advocates, that is, than an ‘egregious violation’ is nothing more than a ‘bad faith’ violation, and that such bad faith exists where ‘a reasonable officer should have known that the conduct at issue violated the Constitution.’” Garcia-Torres, No. 10-2307, slip op. at 6 n.4 (discussing Gonzalez-Rivera v. INS, 22 F.3d 1441, 1447-48 (9th Cir. 1994)).

This decision is quite similar to Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010), involving another individual arrested during this event.

BIA: Interprets “single scheme of criminal misconduct” language in multiple CIMT ground of removal

2012-01-26T09:00:00Z

The BIA refined its interpretation of the “single scheme of criminal misconduct” exception to the multiple crimes involving moral turpitude ground of removal. Matter of Islam, 25 I&N Dec. 637 (BIA 2011) (Pauley, Malphrus, and Mullane, Board Members). Board Member Pauley wrote the panel’s opinion.

This case involved an LPR who was convicted of criminal possession of stolen property (involving a credit or debit card), N.Y. Penal § 165.45(2), and, four months later, forgery in the third degree, N.Y. Penal § 170.05. DHS charged him as removal pursuant to INA § 237(a)(2)(A)(ii) for having been convicted “of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” These convictions arose, according to Islam’s statements, from his use of two credit and debit cards at four locations, including different retail outlets, in adjoining counties where he made five purchases over the course of a few hours. Matter of Islam, 25 I&N Dec. at 638.

The BIA noted that forgery and possession of stolen property “have long been considered” CIMTs. Matter of Islam, 25 I&N Dec. at 638. “Therefore the sole issue on appeal is whether the respondent’s convictions arose out of a ‘single scheme of criminal misconduct.’” Matter of Islam, 25 I&N Dec. at 639.

The BIA relied quite heavily on its earlier explanation in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), of the single scheme clause:

“In Matter of Adetiba, 20 I&N Dec. at 512, we concluded that separate crimes involving the unauthorized use of four different credit cards obtained in four different fictitious names, which resulted in harm to different victims, did not arise out of a ‘single scheme of criminal misconduct,’ even if they were committed pursuant to an elaborate plan and the same modus operandi was used for each offense…. Reviewing our past precedents, we found the statutory language to mean that when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. Thus, we determined that the single scheme exception “refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct.” Matter of Islam, 25 I&N Dec. at 639 (internal quotations and citations omitted).

An example of a single scheme, it added, might be “where a person breaks into a store with the intent to commit larceny and, in connection with that criminal act, also commits an assault with a deadly weapon.” Matter of Islam, 25 I&N Dec. at 640.

Because the single scheme clause is “a quintessentially ambiguous term,” Matter of Islam, 25 I&N Dec. at 641, and “neither the language nor the legislative history of the statute provides any insight into what Congress meant by that phrase,” Matter of Islam, 25 I&N Dec. at 639, the Board explained federal courts owe deference to its interpretation. Matter of Islam, 25 I&N Dec. at 640-41 (discussing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)). This is only important in federal circuits that had not adopted the Matter of Adetiba approach—for example, the Second Circuit which adopted a more expansive approach in Nason v. INS, 394 F.2d 223 (2d Cir. 1968), and which the respondent had urged the Board to follow. Matter of Islam, 25 I&N Dec. at 639.

The BIA concluded by noting its agreement with the IJ’s “determination that under the analysis set forth in Matter of Adetiba, the DHS has established by clear and convincing evidence that the respondent’s convictions for crimes involving moral turpitude did not arise out of a single scheme of criminal misconduct.” Matter of Islam, 25 I&N Dec. at 641. The respondent, accordingly, is removable for having been convicted of multiple CIMTs. Matter of Islam, 25 I&N Dec. at 642.

Report: crImmigration enforcement funding and prison rates rise

2012-01-24T09:00:00Z

A report by the Congressional Research Service tells of increased funding for the federal government’s programs targeting immigrants convicted of crimes, including immigration-related crimes, and an accompanying increase in the number of immigrants arrested and imprisoned. Marc R. Rosenblum & William A. Kandel, Congressional Research Service, Interior Immigration Enforcement: Programs Targeting Criminal Aliens (Oct. 21, 2011). The CRS is a non-partisan unit of the Library of Congress.

Between fiscal year 2004 and FY 2001, the report explained, funding for programs targeting so-called “criminal aliens” skyrocketed along with a corresponding increase in arrest and imprisonment rates. “Congress appropriated a total of about $690 million for these four programs [the Criminal Alien Program, Secure Communities, § 287 agreements , and the National Fugitive Operations Program] in FY2011, up from $23 million in FY2004. At the same time, the number of aliens arrested through programs targeting criminal aliens increased from about 11,000 to over 289,000.” Rosenblum & Kandel at 1.

As used in the report, “criminal alien” refers to “any noncitizen who has ever been convicted of a crime in the United States.” Rosenblum & Kandel at 2. This definition includes individuals who are not placed in removal proceedings on the basis of a criminal conviction. Rosenblum & Kandel at 2. Indeed, it includes individuals whose criminal conviction does not render them removable.

Most of the noncitizens arrested between 2001 and 2009, the report went on, were for illegal entry and “virtually all” of the increase in the percentage of the total number of federal arrests in this period was due to illegal entry. Rosenblum & Kandel at 4. As an example, in 2001, 41,499 noncitizens were arrested on federal charges constituting 35 percent of the total number of persons arrested that year on federal charges. In comparison, in 2009, 84,640 noncitizens were arrested on federal charges constituting 46 percent of the total number arrested. Rosenblum & Kandel at 4.

Not surprisingly given these arrest data, “immigration crimes grew as a proportion of total federal offenses for which they [noncitizens] received sentences, increasing from 47.3% of all crimes in 2001 to 68.2% by 2009.” Rosenblum & Kandel at 8. In contrast, only 0.4 percent of noncitizens convicted of a federal crime in 2009 were convicted of a violent offense and 31.4 percent were convicted of nonviolent crimes. Rosenblum & Kandel at 8 tbl.3.

To be clear, this does not suggest that more noncitizens are committing immigration crimes. It is possible that “[t]hese trends reflect changes in enforcement and prosecution policies rather than increased noncitizen criminality.” Rosenblum & Kandel at 5.

Incarceration data also shows an upward trajectory in the last decade. While in 2001 there were 129,214 noncitizens incarcerated in federal or state prisons or local jails constituting 6.4 percent of the total incarcerated population, the absolute number of incarcerated noncitizens in 2009 was 172,766 (7.2 percent of the total). Rosenblum & Kandel at 7 tbl.2. This growth was spurred by a substantial increase in the noncitizen population of local jails. Rosenblum & Kandel at 6.

None of this is surprising given the significant funding given to immigration policing programs in recent years. While the Criminal Alien Program, Secure Communities, § 287(g) agreements, and the National Fugitive Operations Program received $23.4 million in FY 2004, those programs received $199.9 million in FY 2006, $641.1 million in FY 2008, and $690.2 in FY 2011. Rosenblum & Kandel at 22 tbl.5.

3 Cir: MN sex offender registration not CIMT; adjustment doesn’t reset admission date

2012-01-19T09:00:00Z

The U.S. Court of Appeals for the Third Circuit recently held that Minnesota’s predatory offender registration crime does not involve moral turpitude. Totimeh v. Attorney General, Nos. 10-3939 & 11-1998, slip op. (3d Cir. Jan. 12, 2012) (McKee, Rendell, and Ambro, JJ.). The court also followed the BIA’s 2011 decision in which the Board held that the applicable date of admission for removability is the date on which the noncitizen was in the country when the crime was committed as opposed to a later adjustment of status date. Judge Ambro wrote the panel’s decision.

This case involves an individual who was admitted as a non-immigrant visitor in July 1980. In May 1983 he adjusted his status to permanent resident. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 3. Less than five years later, in January 1988, he pleaded guilty to criminal sexual conduct and in April 1998 he pleaded guilty to failing to comply with the state’s sex offender registration requirement. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 3-4.

DHS initiated removal proceedings based on the 1988 conviction alleging that Totimeh is removable for having been convicted of a CIMT within 5 years of admission. INA § 237(a)(2)(A)(i). In an amended NTA it also alleged that he is removable for having been convicted of two CIMTs at any time after admission. INA § 237(a)(2)(A)(ii).

Hoping to obtain relief under former INA § 212(c), Totimeh conceded that the 1988 conviction involves moral turpitude. When DHS amended the NTA to add the 1998 conviction and the multiple CIMT ground of removal, Totimeh denied that the failure to register conviction constitutes a CIMT. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 4. The immigration judge determined that the failure to register conviction involves moral turpitude. In reaching this conclusion, the IJ “relied on the BIA’s decision in In re Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007), whereby it concluded that failure to register as a sex offender in violation of California’s sex offender registration act was a crime involving moral turpitude.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 5.

Totimeh subsequently claimed that he was actually admitted in July 1980 when he came to the USA as a non-immigrant rather than May 1983 when he adjusted. It is unclear from the decision whether he asserted this before the IJ or BIA. Regardless, he made this assertion without supporting it in the record. The BIA affirmed the IJ’s CIMT conclusion and determined that Totimeh’s adjustment date was the relevant date of admission thus the 1988 criminal sexual conduct conviction was a CIMT committed within 5 years of admission. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 5.

Totimeh later moved to reopen his case before the BIA to supplement it with documents retrieved through a FOIA request. The BIA denied this motion. The Third Circuit expressed dismay that Totimeh was forced to obtain this information through a FOIA request rather than having the government simply turn it over when he asserted that he had been admitted in 1980.

“It is strange,” the court explained in a footnote, “that the Government did not provide this information to Totimeh or the IJ at the time the former asserted his correct admission date, and instead forced him to seek out the documents through a FOIA request. This resulted in unnecessary delay, an additional written decision by the BIA, and an additional appeal to us. We expect that the Government will respond (and quickly) in the future with such information in similar circumstances.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 6 n.3.

While I agree that this is “unnecessary delay,” it’s not “strange”—at least not if by strange the court means unusual. On the contrary, it’s routine practice. The Third Circuit’s expectation that the government “will respond (and quickly)” in the future is commendable, but without the threat of some kind of sanction I’m skeptical that such comments will make a difference.

Given the BIA’s decision, the Third Circuit was faced with deciding, first, whether Minnesota’s predatory offender registration statute is a CIMT and, second, if it is not a CIMT, what date is the proper date of admission for determining whether Totimeh was convicted of a CIMT within 5 years of admission (the 1980 date on which he was admitted as a non-immigrant or the 1983 date of his adjustment of status). Totimeh, Nos. 10-3939 & 11-1998, slip op. at 7.

At the time of Totimeh’s 1998 conviction, the Minnesota predatory offender registration statute, Minn. Stat. § 243.166.5, “defined the offense as ‘knowingly violat[ing] any of [the statute’s] provisions or intentionally provid[ing] false information.’” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 9. Among other things, the statute “required registered offenders to provide a written notice of a change in residence at least five days before changing residence.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 10.

To decide whether this offense involves moral turpitude, the Third Circuit turned to the Tenth Circuit’s decision in Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011), in which the Tenth Circuit held that Colorado’s sex offender registration statute is not a CIMT. (I previously mentioned Efagene in a post about a Ninth Circuit decision.) Following Efagene’s reasoning, the Third Circuit concluded that the Minnesota predatory offender registration statute “can be committed without intent,” is a regulatory offense designed to assist law enforcement, and “does not regulate a crime that of itself is inherently vile or intentionally malicious.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 12-13.

In addition, the BIA’s interpretation of the Minnesota offense conflicts with the BIA’s prior interpretation of the CIMT provision as not including regulatory or licensing crimes, thus it “is not entitled to Chevron deference,” referring to Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), which normally requires courts to defer to an agency’s reasonable interpretation of statutes within its area of expertise. Totimeh, Nos. 10-3939 & 11-1998, slip op. at 13.

Accordingly, the Third Circuit held that Minnesota’s predatory offender registration offense does not necessarily involve moral turpitude. As such, Totimeh is not removable for having been convicted of two or more CIMTs. INA § 237(a)(2)(A)(ii).

The court then turned to deciding whether Totimeh was removable for having been convicted of one CIMT within five years of admission. INA § 237(a)(2)(A)(i). Because there is no question that the 1988 criminal sexual conduct conviction constitutes a CIMT, whether Totimeh is removable for having been convicted of a CIMT within five years of admission depends on the date on which Totimeh was admitted.

Here the court quickly concluded that the BIA incorrectly applied its own precedential decision and DHS erroneously argued in support of the BIA’s position. Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), the court explained, held that the “date of admission” for purposes of INA § 237(a)(2)(A)(i), “refers to the single ‘date of admission by virtue of which the alien was present in the United States when he [or she] committed [the] crime.’” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 7 (quoting Matter of Alyazji, 25 I&N Dec. at 406). (The Immigration Law Profs blog has more information about Alyazji.)

It does not matter that Totimeh later adjusted his status because at the time of the 1988 conviction he was in the USA as a result of the 1980 admission. The 1983 adjustment merely extended the stay that began with the 1980 admission. “[O]nce an alien is in the United States legally, the five-year clock starts. Later adjustment of the reason that the alien may stay does not restart a clock that never stopped.” Totimeh, Nos. 10-3939 & 11-1998, slip op. at 15.

Many thanks and congratulations to Wayne P. Sachs of the Sachs Law Group, LLC, in Philadelphia who argued on behalf of Totimeh and alerted me to this wonderful decision.

Teaching crImmigration law

2012-01-17T09:00:00Z

The new semester started last week and I’m thrilled that my crImmigration seminar is off and running. I’ve been looking forward to teaching a class devoted entirely to the convergence of criminal law and immigration law for years and the fourteen students who are currently enrolled (there’s a 15-person maximum) are letting me do it this semester for the first time.

The course is divided into three units: “criminals” in the immigration system; “immigrants” in the criminal justice system; and enforcing crImmigration. Each unit will run several weeks. The syllabus provides more detail about what we’ll cover in each section, including reading assignments, but some highlights are two weeks discussing Padilla v. Kentucky, 130 S. Ct. 1473 (2010), a week on Arizona, and a week on immigration imprisonment.

Students will be required to get their hands dirty with some real-world simulations. They’ll have to write a legal brief arguing to an immigration judge that a particular offense is not a crime of violence. After that they will have to don a judicial hat and decide whether Padilla ought to apply retroactively. They will close the semester with a policy paper on a relevant topic of their choice.

I’m proud and excited that Capital Law is one of the few law schools in the country offering this type of course.

BIA: RI solicitation to commit assault is crime of violence

2012-01-12T09:00:00Z

The BIA held that a conviction for violating Rhode Island’s prohibition against criminal solicitation was a crime of violence where the crime solicited was assault. Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Pauley, Greer, and Mullane, Board members). Board member Pauley wrote the panel’s decision.

This case involved an LPR who was convicted of criminal solicitation, R.I. Gen. L. § 11-1-9, after pleading nolo contendere. The record of conviction explained that Guerrero was charged with solicitation to commit the crime of assault. Matter of Guerrero, 25 I&N Dec. at 631.

Several years ago, the U.S. Court of Appeals held that Rhode Island’s assault offense is a crime of violence “because it has as an element the ‘attempted use, or threatened use of physical force against the person or property of another.’” Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (quoting 18 U.S.C. § 16(a)). The First Circuit relied on the first of two alternative definitions of crime of violence used for immigration, INA § 101(a)(43)(F), and criminal law purposes, 18 U.S.C. § 16(a). The second definition provides that “any other offense that is a felony and that, 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” is a COV. 18 U.S.C. § 16(b).

Though the BIA discussed the First Circuit’s holding in Lopes, it ultimately rested its conclusion on § 16(b)’s “substantial risk” requirement. To convict someone of criminal solicitation, the BIA explained, “the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed.” Matter of Guerrero, 25 I&N Dec. at 635. Accordingly, “although the respondent’s solicitation offense ‘can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.’” Matter of Guerrero, 25 I&N Dec. at 635.

In effect, the BIA, relying on the First Circuit’s holding that Rhode Island assault necessarily involves the use or threatened use of physical force, concluded that solicitation to commit assault necessarily involves a substantial risk that physical force would be used to actually perform the assault. As such, it concluded that Rhode Island solicitation to commit assault constitutes a crime of violence as defined by 18 U.S.C. § 16(b). Matter of Guerrero, 25 I&N Dec. at 636.

Scholars Sidebar: SCOTUS holds § 212(c) comparable grounds requirement is arbitrary and capricious

2012-01-10T09:00:00Z

In December the U.S. Supreme Court struck down the comparable grounds rule that had long been used to determine whether an individual facing deportation could seek relief under former INA § 212(c). Judulang v. Holder, No. 10-694, slip op. (U.S. Dec. 12, 2011). I wrote an article for LexisNexis analyzing the Supreme Court’s decision and its relevance for immigration practitioners. U.S. Supreme Court Holds BIA’s Comparable-Grounds Requirement for § 212(c) Relief is Arbitrary and Capricious, 2011 Emerging Issues 6164 (2011). The terms of my agreement with Lexis don’t allow me to make it available here for free, but interested readers can find it in the Lexis database (in the Emerging Issues Analyses section) or purchase it from the Lexis web site.

SCOTUS to hear SB 1070 case

2011-12-12T15:07:02Z

The U.S. Supreme Court agreed to hear arguments in Arizona v. United States, No. 11-182, the state's attempt to revive its immigration law S.B. 1070. Justice Kagan has recused herself, presumably because of her role as Solicitor General prior to joining the Court.

The question presented in the cert petition asks "whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face." Given the 12 amicus briefs that were filed at the cert stage and the substantial media attention that this case has already received, this promises to be a closely watched process. A date for oral argument has not been set. crImmigration.com will of course be following developments over the next several months.

Exams + holidays + new course prep = no new posts

2011-12-06T09:00:00Z

It’s exam time again. The semester has wrapped up so it’s time for me to grade Immigration and Torts exams. As a result, I won’t have time to post new updates to the blog for a few weeks. By then the holidays will be here so I won’t post during that time either.

Plus, I need to get ready for the new semester and the new course I’ll be teaching: crImmigration: The Intersection of Criminal Law and Immigration Law! I’m extremely excited to spend a semester thinking through the convergence of criminal law and immigration law with a small group of students. The course is capped at 15 and right now there are 14 enrolled so I’m excited that students are excited about the class (hence my earlier statement about being extremely excited)!

New crImmigration.com posts will appear after the new year. Right now I’m planning to resume on January 10, 2012. Meanwhile, you can follow the latest crImmigration developments on my Facebook page, Twitter account, or on LinkedIn.

6 Cir: Fed ct can’t reconsider IJ’s weighing of hardship factors

2011-12-01T09:00:00Z

The U.S. Court of Appeals for the Sixth Circuit recently held that it lacks jurisdiction to review the weight that an IJ attaches to evidence of hardship for purposes of Cancellation of Removal. Ettienne v. Holder, No. 10-3896, slip op. (6th Cir. Oct. 5, 2011) (Rogers, McKeague, and Donald, JJ.) Judge Rogers wrote the panel’s decision.

This case involves a woman who entered the United States on what appears to be a non-immigrant visa (the court is unclear about this) and admitted to marriage fraud in 1990. Ettienne, No. 10-3896, slip op. at 3. DHS did not initiate removal proceedings until 2001 when she sought to adjust her status to that of permanent residence on the basis of her marriage to her United States citizen husband. Ettienne, No. 10-3896, slip op. at 3. DHS charged her with being inadmissible due to the marriage fraud, INA § 237(a)(1)(G)(ii), and unlawful presence, INA § 237(a)(1)(B). Ettienne, No. 10-3896, slip op. at 3. Ettienne sought Cancellation of Removal for Non-LPRs pursuant to INA § 240A(b)(1). Ettienne, No. 10-3896, slip op. at 3.

The IJ “determined that Ettienne had not satisfied the final requirement [for Cancellation]—showing that her removal would cause Bradley [her husband] or the children to suffer more hardship than would normally be expected under the circumstances, 8 U.S.C. § 1229b(b)(1)(A)-(C).” Ettienne, No. 10-3896, slip op. 5. Her Cancellation application was therefore denied. Ettienne, No. 10-3896, slip op. at 5. The BIA affirmed the IJ’s hardship determination. Ettienne, No. 10-3896, slip op. 5.

On appeal to the Sixth Circuit, Ettienne argues that “the BIA failed to consider all the hardship factors in their totality, as required by the BIA’s precedential decision in In re Gonzalez Recinas, 23 I&N Dec. 467, 473 (BIA 2002).” Ettienne, No. 10-3896, slip op. at 6. Specifically, she “argues that the IJ ignored the totality requirement by failing to specifically identify every hardship factor that Ettienne’s family would face upon her removal.” Ettienne, No. 10-3896, slip op. at 6.

The Sixth Circuit concluded that it has no jurisdiction to consider such an argument because this amounts to a request that the Sixth Circuit weigh the evidence itself rather than leave this task to the IJ. “This is a challenge to the weighing of the evidence that, if accepted, would effectively eliminate the jurisdictional bar on review of denials of cancelation of removal,” the court explained. Ettienne, No. 10-3896, slip op. 6.

While the court acknowledged its power to review claims that the IJ or BIA incorrectly applied questions of law or “nondiscretionary issues,” Ettienne, No. 10-3896, slip op. at 6, it “lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner’s case and those of precedential decisions. The BIA will sometimes reach opposite conclusions in cases that have many factual similarities, but this does not reflect a failure of the agency to follow its own precedent. Rather, the different outcomes are an expected result of the discretionary weighing required to make individualized determinations.” Ettienne, No. 10-3896, slip op. 8.

Accordingly, the court concluded, “we lack jurisdiction over claims that the IJ failed to consider or put insufficient emphasis on particular factors in the Petitioner’s case.” Ettienne, No. 10-3896, slip op. at 8.

3 Cir: Probable cause needed to consider returning LPR as seeking admission; aiding & abetting wire fraud is aggravated felony

2011-11-29T13:19:34Z

The U.S. Court of Appeals for the Third Circuit held that an immigration officer must have probable cause to believe that an LPR returning to the United States from a trip abroad has committed an offense listed in INA § 212(a)(2) to determine that the LPR is seeking admission. John Doe v. Attorney General, No. 10-2272, slip op. (3d Cir. Sept. 8, 2011) (Rendell, Smith, and Fisher, JJ.). Judge Smith wrote a majority opinion joined by Judge Fisher. Judge Rendell wrote separately concurring in part and dissenting in part.

This case involved an LPR who was paroled into the United States upon return from a trip abroad. Doe, No. 10-2272, slip op. at 3. The immigration officer at the port of entry learned that the non-citizen, Igor Rodov, “was subject to an arrest warrant arising out of his association with a wire fraud scheme.” Doe, No. 10-2272, slip op. at 3. He was paroled “for the purpose of prosecuting him.” Doe, No. 10-2272, slip op. at 3. He subsequently pled guilty. Doe, No. 10-2272, slip op. at 3.

DHS later initiated removal proceedings charging him with having been convicted of a crime involving moral turpitude, thus rendering him inadmissible under INA § 212(a)(2)(A)(i)(I). Doe, No. 10-2272, slip op. at 4. DHS argued that he is not eligible for cancellation of removal because his conviction constitutes an aggravated felony. Doe, No. 10-2272, slip op. at 4.

Because Rodov was an LPR, the Third Circuit first had to determine whether he was properly paroled into the United States or whether he should have been admitted. “Parole,” the court explained, is available only to individuals “applying for admission to the United States.” Doe, No. 10-2272, slip op. at 6 (quoting INA § 212(d)(5)(A)). Crucially, LPRs returning from abroad “shall not be regarded as seeking an admission into the United States” unless they fall within one of six exceptions to this presumption. INA § 101(a)(13)(C). One of these exceptions is for LPRs who have “committed an offense identified in section 212(a)(2).” INA § 101(a)(13)(C)(v). A conviction for a crime involving moral turpitude is included in INA § 212(a)(2).

Combined, these statutory provisions require nuanced mental gymnastics. As an LPR, Rodov was presumed to not be seeking admission. Accordingly, he could only be paroled into the United States if he was deemed to be seeking an admission. He could only be deemed to be seeking an admission if he was deemed to have committed an offense listed in INA § 212(a)(2). In the court’s words, “Whether or not Rodov could be paroled thus depended on whether he had ‘committed’ an enumerated crime at the time the government sought to parole him.” Doe, No. 10-2272, slip op. at 9

Because Rodov had not been convicted (or even prosecuted at the time he returned to the United States) this means that “DHS’s representatives were therefore required to determine whether or not there was adequate evidence that Rodov had ‘committed’ his crime when he arrived at his point of entry, well before he had been convicted, or even formally prosecuted.” Doe, No. 10-2272, slip op. at 9.

The key question facing the court, then, was “What sort of showing must be made before the government may conclude, for purposes of a parole determination, that an alien has ‘committed’ a crime, and, accordingly, regard him as an applicant for admission?” Doe, No. 10-2272, slip op. at 10. The INA, the court explained, does not answer this question. Rather, “There is a hole in the Immigration and Naturalization Act: it requires an immigration officer to determine whether an arriving lawful permanent resident has committed a crime, but omits mention of how the officer is to do so.” (The Third Circuit incorrectly refers to the INA as the “Immigration and Naturalization Act” when it is actually titled the “Immigration and Nationality Act.”)

To fill this statutory “hole,” the Third Circuit turns to federal common law. Doe, No. 10-2272, slip op. at 11. First it identifies whose duty it is to show that a returning LPR has committed a § 212(a)(2) offense, then it explains how that is to occur.

“The burden must be on the government,” the court explains, because the “initial decision…is made by an immigration officer working at the alien’s port of arrival in the country.” Doe, No. 10-2272, slip op. at 11. Despite the fact that the revocation of LPR status is a restraint on the rights and privileges of individuals granted this status, the immigration officer’s decision that a particular returning LPR is seeking admission is reached without a hearing, without a neutral arbiter, and without providing the LPR time to obtain counsel or develop a defense. Doe, No. 10-2272, slip op. at 12.

Having determined that the burden rests on the government to show that a returning LPR is seeking admission, the court then turned to the proper standard that immigration officers must use to reach that determination: “we think the proper standard to employ here is probable cause to believe that the alien has committed one of the crimes identified in 8 U.S.C. § 1182(a)(2),” the U.S. Code’s parallel citation to INA § 212(a)(2). Doe, No. 10-2272, slip op. at 13.

At first blush this seems to require that immigration officers suddenly become familiar with the massive Fourth Amendment probable cause jurisprudence. Fortunately for immigrants and immigration officials alike, the court simplifies the practical application of this standard by announcing, “Where a warrant has issued for the alien’s arrest on suspicion of the commission of one of the enumerated crimes, probable cause will be presumed.” Doe, No. 10-2272, slip op. at 13. In practice, this means that an entry in a database indicating that a warrant exists will be sufficient to satisfy the Third Circuit’s probable cause requirement.

The probable cause determination is more complicated where no warrant exists. In those situations, “treatment of the arriving alien as an applicant for admission rather than as a permanent resident will be contingent on a judge’s (or a magistrate’s) assessment of the proffered basis for believing probable cause to exist.” Doe, No. 10-2272, slip op. at 13.

The court does not venture to explain how this is supposed to happen. Presumably an immigration officer will not seek a judge’s opinion on probable cause while the returning LPR is waiting at the port of entry. The only realistic option is that a returning LPR who is deemed to be seeking admission and is either paroled (as happened here to Rodov) or, as happens every day to countless individuals, is detained and sent to an immigration prison pending removal proceedings, contests the immigration official’s probable cause determination.

In those instances, will it be an IJ who decides whether probable cause exists or is this the role of a federal judge? Assuming this is to be decided by an IJ, does this mean that immigration judges (at least those in the Third Circuit) must suddenly familiarize themselves with probable cause caselaw?

These questions do not apply to Rodov. Since a warrant existed at the time he returned to the United States, “the government possessed sufficient evidence to establish that he had ‘committed’ the crime of aiding and abetting wire fraud for purposes of [INA § 101(a)(13)(C)(v)].” Doe, No. 10-2272, slip op. at 13. He was, therefore, properly considered to be seeking admission. “Accordingly, DHS was permitted…to parole him for purposes of prosecution, and to seek his removal as an inadmissible alien (rather than as a deportable permanent alien).” Doe, No. 10-2272, slip op. at 14.

Because Rodov pleaded guilty “to aiding and abetting the whole of a large-scale criminal endeavor” that, according to a plea agreement stipulation, “caused between $120,00 and $200,000 in losses,” his conviction fell within the fraud or deceit in excess of $10,000 type of aggravated felony, INA § 101(a)(43)(M)(i). Doe, No. 10-2272, slip op. at 21.

BIA: Gov bears burden of showing that returning LPR seeks admission; accessory after fact is CIMT if underlying crime is

2011-11-17T09:00:00Z

The BIA recently held that the government bears the burden of showing that a returning LPR is seeking admission and that an accessory after the fact conviction involves moral turpitude only if the underlying crime does. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (Pauley, Greer, and Wendtland, Board Members). Board Member Pauley wrote the panel’s decision.

This case involved an LPR who was returning from a trip abroad. Matter of Rivens, 25 I&N Dec. at 624. Rivens had previously pleaded guilty to New York’s offering a false instrument for filing offense, NY Penal § 175.30, and federal accessory after the fact, 18 U.S.C. § 3. Upon return, DHS charged him as inadmissible for having been convicted of a crime involving moral turpitude. Matter of Rivens, 25 I&N Dec. at 624.

Despite the fact that LPRs are regularly placed in removal proceedings and charged as inadmissible, the BIA had never decided whether the government or the noncitizen respondent bears the burden of showing that the grounds of inadmissibility apply.

It is worthwhile to remember that INA § 101(a)(13)(C) provides that an LPR “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws” unless one of six enumerated exceptions apply. One of those exceptions, INA § 101(a)(13)(C)(v), includes instances in which the LPR “has committed an offense identified in section 212(a)(2).” In turn, § 212(a)(2)(A)(i)(I) provides that anyone who has committed a crime involving moral turpitude is inadmissible.

Whether an individual is subject to inadmissibility or deportation matters because it is the government’s burden to prove deportability while it is the noncitizen’s burden to prove admission. INA § 240(c)(2).

Because “the Act remains silent with respect to the burden and standard of proof required to determine that an alien is an ‘applicant for admission’,” the Board turned to its thirty-five year history of imposing the burden on the government to decide which party should bear the burden. Matter of Rivens, 25 I&N Dec. at 625 & n.2. “[W]e find no reason to depart from our longstanding case law holding that the DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seeking an admission.” Matter of Rivens, 25 I&N Dec. at 625.

The end result is that it is up to DHS to provide clear and convincing evidence—a standard that is more stringent than the preponderance of the evidence standard typical of civil proceedings but less stringent than the beyond a reasonable doubt standard of criminal proceedings—that a returning LPR is an applicant for admission.

The BIA then went on to hold that accessory after the fact involves moral turpitude only if the “underlying or substantive crime” involves moral turpitude. Matter of Rivens, 25 I&N Dec. at 627. Since the IJ did not perform such an inquiry, the BIA remanded. Matter of Rivens, 25 I&N Dec. at 630.

Report: Secure Communities statistics are neither surprising nor pretty

2011-11-15T09:00:00Z

A report by scholars at Cardozo and Berkeley paints a damning portrait of Secure Communities. Aarti Kohli, Peter L. Markowitz, and Lisa Chavez, Secure Communities by the Numbers: An Analysis of Demographics and Due Process (October 2011). Secure Communities, the Obama Administration’s signature immigration policing program, takes fingerprint data submitted by local law enforcement agencies to the FBI and runs them through the Department of Homeland Security’s IDENT database to try to identify people who are either undocumented or at risk of losing their right to remain in the United States if convicted of a crime.

Examining data acquired from DHS through a Freedom of Information Act lawsuit, the report’s authors found some disturbing but not particularly surprising (at least not to this frequent critic of immigration policing). The report’s conclusions can be summed up as follows: young Latinos are imprisoned and removed at rates higher than is true of immigration policing generally.

Here are some of the report’s highlights: “approximately 3,600 US citizens have been apprehended by ICE” through S-Comm (at 4); “39% of the people identified for deportation by ICE in our study reported having a U.S. citizen family member” (at 5); “93% of the people identified for deportation through Secure Communities are from Latin American countries,” compared to 53 percent of the foreign-born population of the United States as a whole and 77 percent of the undocumented population (at 5-6); 83 percent of individuals identified through S-Comm were detained pending removal proceedings compared to 62 percent of all people apprehended by DHS (at 7); “individuals in our sample population spent an average of 28 days in detention and 28% spent more than one month in detention” (at 7); and 27 percent of people identified through S-Comm were charged as removable under a crime-based ground (at 9 tbl.3).

BIA: NY attempted arson is aggravated felony

2011-11-10T09:00:00Z

In a precedential decision, the BIA held that New York’s attempted arson offense falls within the arson category of aggravated felony. Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (Grant, Malphrus, and Mullane, Board Members). Board Member Mullane wrote the panel’s opinion.

This case involved a LPR who was convicted of attempted arson in violation of New York Penal Code §§ 110 and 150.10. Matter of Bautista, 25 I&N Dec. at 616. Six years after conviction he left the United States and, upon returning, was flagged by DHS at the airport. After being paroled into the country, removal proceedings were initiated charging him as removable pursuant to INA § 212(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude. Matter of Bautista, 25 I&N Dec. at 617.

After an IJ found him inadmissible as charged, Bautista sought Cancellation of Removal for LPRs. At that point, DHS claimed that he was ineligible for Cancellation because the attempted arson conviction constitutes an aggravated felony. Matter of Bautista, 25 I&N Dec. at 617.

Applying the categorical approach to statutory construction, the BIA determined that all but one element of the state offense match those contained in one of the crimes enumerated in the arson or explosives category of aggravated felony, INA § 101(a)(43)(E)(i). Specifically, all but one of the elements necessary for a conviction for the New York offense match those necessary for conviction under 18 U.S.C. § 844(i), a federal statute penalizing arson. Matter of Bautista, 25 I&N Dec. at 618.

The one element contained in the federal arson offense that is not contained in the state arson offense, the BIA explained, concerns the federal government’s jurisdiction. The federal offense requires that the targeted property be “used in interstate or foreign commerce.” Matter of Bautista, 25 I&N Dec. at 618 (quoting 18 U.S.C. § 844(i)).

Relying on Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), the Board held, “‘it must render irrelevant any purely jurisdictional element appearing in the crimes enumerated.’” Matter of Bautista, 25 I&N Dec. at 620 (quoting Matter of Vasquez-Muniz, 23 I&N Dec. at 212). Were it to require the state offense to contain the “interstate or foreign commerce” requirement as does the federal offense, “‘virtually no state crimes would ever be included in section 101(a)(43)(E), despite the statute’s language.’” Matter of Bautista, 25 I&N Dec. at 620 (quoting Matter of Vasquez-Muniz, 23 I&N Dec. at 212).

Accordingly, the BIA held that New York’s attempted arson offense constitutes an arson type aggravated felony; therefore Bautista is ineligible for Cancellation.

Scholars Sidebar: AZ self-smuggling crime altered fed power over immigration long before SB 1070

2011-11-08T09:00:00Z

In a new article, immigration law scholar Ingrid V. Eagly argues that Arizona changed the face of immigration policing before the state legislature enacted the infamous SB 1070. Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 U.C.L.A. L. Rev. 1749 (2011). Eagly, a professor at U.C.L.A. School of Law, focuses on a state anti-smuggling statute, Ariz. Rev. Stat. Ann. § 13-2319, enacted in 2005 and its zealous use by local prosecutors against immigrants to argue that “Arizona has already altered federal power over immigration through its control over crime.” Eagly, 58 U.C.L.A. L. Rev. at 1754.

Local prosecutors and willing law enforcement officers, including Maricopa County’s sheriff Joe Arpaio, have combined the felony anti-smuggling statute, initially intended to target human smugglers, with the state’s conspiracy statute, Ariz. Rev. Stat. Ann. § 13-1003(A), “to reach beyond prosecution of the smugglers…and prosecute the migrants being transported….” Eagly, 58 U.C.L.A. L. Rev. at 1759.

In other words, migrants are being charged with smuggling themselves. The practical result, writes Eagly, is that “the smuggling law criminalizes unlawful presence,” even though unlawful presence is not a federal crime; rather, it’s a civil violation of immigration law. Eagly, 58 U.C.L.A. L. Rev. at 1773.

To make the situation more extreme, because a separate Arizona statute prohibits bail in some cases involving undocumented defendants, “defendants charged with alien smuggling are now rarely, if ever, released on bond,” she writes. Eagly, 58 U.C.L.A. L. Rev. at 1765.

Criminalizing self-smuggling has had a trickle effect through the criminal system. “Arizona’s smuggling crime and its application to criminalize self-smuggling effectively enlarged the legitimate domain of criminal suspicion. In turn, more criminal suspicion opens the door for more stops, interrogations, and searches, regardless of whether criminal charges are ever filed. And, by making alienage an element of the smuggling crime, more questioning regarding citizenship status and more arrests of noncitizens are folded into the daily work of local police.” Eagly, 58 U.C.L.A. L. Rev. at 1777-1778.

More prosecutions of immigration-related activity naturally affects the federal government since it’s the federal government and no other body that can determine whether a particular individual lacks authorization to be in the United States. As Eagly explains, “state involvement requires federal authorities to respond to inquiries from police in the field regarding immigration status.” Eagly, 58 U.C.L.A. L. Rev. at 1784.

No matter how much they wish otherwise, states, including Arizona, “cannot prosecute immigration crime on their own. Instead, they remain in a symbiotic relationship with the federal government. Federal agents must aid in investigating alienage—and eventually in proving immigration status beyond a reasonable doubt in court.” Eagly, 58 U.C.L.A. L. Rev. at 1787.

But because the anti-smuggling statute has been found to be within the state’s traditional police power there is no conflict with the federal government’s exclusive authority to regulate immigration. Put differently, the preemption-based litigation strategies used against SB 1070 and copycat legislation are irrelevant.

Local prosecutors, in other words, have displaced the President when it comes to this significant feature of immigration policing in Arizona. As Eagly summarizes the state of affairs, “Within the state court, where the President has no authority to dictate policy, the type of defendant, nature of immigration violation, and severity of punishment reflect Maricopa County’s discretionary choices.” Eagly, 58 U.C.L.A. L. Rev. at 1805.

This is a concerning—perhaps alarming—trend. Arizona has found a way to police immigration without any of the preemption problems facing SB 1070. “Arizona has not gone so far as to claim that it can create its own civil immigration system for granting green cards and deporting migrants….However, by claiming state power to criminally punish migration violations, local officials point out that they can obtain civil regulatory effects….By making migrants felons, prosecutors made them ineligible for most forms of relief from removal, barred them from future legal immigration, and subjected them to enhanced federal criminal penalties if they later returned to the United States.” Eagly, 58 U.C.L.A. L. Rev. at 1812.

Frightening.

crImmigration.com in your Inbox

2011-11-03T09:00:00Z

Instead of having to remember to visit crImmigration.com for the latest postings, you can have crImmigration.com delivered directly to your inbox. Just visit the blog's home page and "subscribe" by entering your email address in the "subscribe" feature available in the top right margin. Doing this will ensure that you receive an email every time I add something.

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