Archive for January, 2010

9th Circuit decision fails to mention an important issue

Sunday, January 31st, 2010

Last week I pointed out that a BIA decision has disrupted the calculations non-citizen criminal defendants make when considering pleading guilty to a crime to enable them to either keep or to seek lawful immigration status. The case, Matter of Almanza-Arenas, 24 I. & N. Dec. 771(BIA 2009), held that in removal cases commenced after the passage of the REAL ID act in 2005, the alien must prove that he or she is eligible for relief from removal. Depending on the relief statute, this may include proving that he or she is not an aggravated felon or, in some cases, not having been convicted of a crime of moral turpitude, or in other cases, other things. In a case where it is ambiguous what the alien was convicted of, the alien must prove his crime is not an aggravated felon, a crime of moral turpitude, or whatever else the alien cannot have been convicted of. In Sandoval-Lua v.Gonzales, 499 F.3d 1121, 1129-30 (9th Cir. 2007), regarding the issue of being an aggaravated felon, the Court of Appeals held that if the conviction documents do not prove that the person is an aggravated felon, then the person cannot be said to have been convicted of an aggravated felony and thus can seek relief where being an aggravated felon would otherwise eliminate them from eligibility. The BIA distinguished the case by saying that the REAL ID imposed a burden of proof on the alien that supercedes the holding in Sandoval-Lua v.Gonzales.

Immigration lawyers are now in a quandary. Can we advise clients to plead guilty to crimes where the conviction documents are ambiguous, hoping that eventually the Ninth Circuit Court of Appeals will overturn Matter of Almanza-Arenas, or must we advise aliens to reject such a plea bargain and go to trial – risking a more severe punishment, or try to plead to something else and face a harsher sentence?

This week the Court of Appeals considered the issue again – this time relating to murky conviction documents relating to whether an alien was convicted of a drug crime. By this time the Court of Appeals should be aware of Sandoval-Lua and the tension between the Court of Appeals holding in Sandoval-Lua and the BIA holding in Matter of Almaza-Arenas. The decision in the case, Esquivel-Garcia v. Holder, No. 07-70640 (9th Cir. January 28, 2010), did not address the issue at all. In the decision which reiterated the holding in Sandoval-Lua, the court noted that the case was in immigration court in 2004, and thus is a pre-REAL ID case. Thus, immigration judges most likely will not follow Sandoval-Lua or Esquivel-Garcia because neither case addresses a case commenced after the passage of the REAL ID Act and the Court of Appeals did not address the affect of the REAL ID Act. It is a shame that the Ninth Circuit Court of Appeals did not address REAL ID or at least provide language that would show that the logic of Sandoval-Lua prevails over the logic of Matter of Almanza-Arenas.

Posted January 31, 2010.




A generation of pleading tactics may be down the drain.

Sunday, January 24th, 2010

Immigration lawyers involved in advising aliens who have been arrested and their criminal defense attorneys have honed skills in trying to mitigate the effects of a criminal conviction on immigration status. In other words, attorneys try to find ways for an alien to plead guilty so he or she will not be deportable, or if he or she cannot avoid deportation, he or she will at least be able to ask for relief (forgiveness) so as not to be deported.

Many crimes render a non-citizen deportable and many crimes do not. Similarly, many crimes that render an alien deportable can be forgiven, but many cannot. The alien must waltz his or her way through the criminal statutes to find crimes that do not render him or her deportable or that at least allow him or her to seek forgiveness.

The strategic calculus often involved finding ambiguous statutes – ones that can either be deportable offenses or not. The next step was then to keep any facts out of the record of conviction that would show that the alien committed a deportable act. Here is an example. Domestic violence is a deportable offense. To be convicted of domestic violence, and alien must be found to have committed a crime of violence and the victim must have been a close relative or a cohabitant – the domestic part of domestic violence. There are crimes that are unambiguously crimes of domestic violence – the elements that must be proved for a conviction are that the alien committed a crime of violence against a loved one. However, other crimes are not so clear. Battery is such an offense in California. Under Cal. Penal Code § 242, battery is defined as using force against another person. A person can be convicted of battery for the slightest unwanted touching (force) as well as the cruelest violent harm (violence). Merely being convicted of battery does not in itself mean a person was convicted of domestic violence because the crime may have involved force rather than violence and the victim may not have been a loved one. For example a wife may get fed up with her husband and throw a paper cup of water at him. This would be a battery. Thus, the alien can avoid being deported if the alien can make sure the conviction papers in the file do not indicate violence instead of force and/or that the victim was a loved one. Bear in mind that in most cases the government has the burden of proving deportability and cannot look for evidence outside of the conviction documents to meet its burden of proof. Thus, if the government cannot prove deportability from the conviction documents, the alien cannot be deported as a result of the criminal conviction.

The same is true for pleading to a criminal charge and preserving the right to seek forgiveness. This can happen, for example, when an alien is convicted of a drug offense. Nearly all drug offenses are deportable offenses. However, only offenses related to drug trafficking (caution, however – the definition is expansive) make a permanent resident alien ineligible for forgiveness. (An alien who is not a permanent resident cannot avoid deportation if he or she has a drug offense 99 percent of the time – there are exceptions so do not just leave the country without exploring the possibilities.) The trick then is to plead guilty to a crime that is not unambiguously a drug sales crime. One such crime is Cal. Health and Safety Code § 11379, Transportation, sale, or distribution of specified controlled substances. As the name suggests, some of the crimes in the statute are sales crimes and others, like transportation or possession, are not sales crimes. Even though the alien would be deportable for transporting or possessing drugs, he or she would be eligible for forgiveness. The strategy was to make sure the conviction documents did not show sales and the alien could seek forgiveness regardless of whether he actually sold drugs or not.

It is this strategy that is now in shambles. In a recent Board of Immigration Appeals decision, Matter of Almanza-Arenas, 24 I. & N. Dec. 771(BIA 2009), the Board of Immigration Appeals concluded that after changes in the law in 2005, an alien must prove his eligibility for relief. In the example about drug selling, the alien must not only make sure that the conviction documents do not show that he sold drugs, but he must also prove that he did not sell drugs. With the alien bearing this burden, merely keeping evidence of drug selling out of the record of conviction is not enough – the alien must prove he did not sell drugs. This could be a very tall order, especially if the alien actually did sell drugs.

Should this decision stand judicial review, and there is reason to believe that it will not, the strategy of finding ambiguous statutes and keeping the record of conviction clean of damaging facts may still work to ward off deportability, but it will no longer work to preserve eligibility for relief. This is a dramatic negative evolution in the law for aliens facing deportation for crimes.

Just one brief note. Some may be horrified to read of this gamesmanship involving aliens who commit crimes. Note that not all criminal statutes are ambiguous – in fact most are not. Also, note that a district attorney must agree to allowing for a plea to an ambiguous statute and that is usually the result of the DA’s being convinced that the (minor) magnitude of the crime does not deserve the collateral result of banishment from the United States. Also, in cases where an alien can seek relief, relief requires balancing the seriousness of the crime and all other illegal activity against positive equities, like family ties, long residence, a solid work history, contributions to the community, property ownership, rehabilitation, and good character. Also, there are prerequisites of long residence in the country to even be eligible for forgiveness. In other words, being forgiven, if eligible, is by no means a foregone conclusion.


Policy change allows for parole of asylum seekers

Sunday, January 24th, 2010

In this blog I have posted many articles about the horrid policy where arriving alien asylum seekers are not released from detention until they are granted asylum or related relief. I pointed out that Australia had such a system and abandoned it just as the United States implemented a “no release” policy. I compared this policy to the Sound of Music where if this policy were in effect in Switzerland, Maria Von Trapp would have been detained upon arrival in Switzerland and subjected to months, and potentially years, of detention.

Things have finally changed for the better. We can be certain that this change came from the top. In a policy memorandum dated December 8, 2009, and effective January 4, 2010, ICE will consider releasing asylum applicants who come to the border. First, an asylum officer must determine that the asylum seeker has a “credible fear” of persecution if he or she is returned to his or her homeland. Then, if ICE officers are confident that the alien is not a danger to the community, not a flight risk, and the alien’s identity is ascertained, the alien will be released. Interesting in the memorandum is that ICE officers have an affirmative duty to interview the alien within seven days of the credible fear determination to determine eligibility for release. When release was allowed in the past, quite often the alien had to make a written request for parole. In my own experience, it could take weeks for an ICE officer to respond to the request. The memorandum requires reporting requirements by local ICE offices to Washington, DC, regarding determinations denying release. Thus, the possibilities that ICE offices who do not like this policy can “go rogue” are reduced.

This policy is terrific news. It marks a dramatic change in ICE’s treatment of the most vulnerable of the detained – asylum seekers. One might wonder why this matters so much if a bona fide asylum seeker need only win his or her asylum case and then be released. The reason is that even in the most straight forward asylum case, it is more than six months that an alien has his or her final asylum hearing in immigration court. Should the final hearing date not be enough time to conclude the hearing, the next hearing date could be months afterward. Also, not all asylum cases are straight forward. Asylum is an immensely complex subject and issues of who is eligible and deserving is not always straight forward. The alien must show past persecution – not easy to define – or a well-founded fear of future persecution, the persecution must be on account of race, religion, nationality, political opinion, or social group. Definitions of these categories, most significantly, social group, are difficult. The issue of what proof is enough proof is difficult. How does a woman prove that she was raped on account of her political opinion and not simply as a victim of crime? These many nettlesome issues can lead to appeals either by an alien who is denied asylum by the immigration court or by the government attorneys who disagree with the grant of asylum by the immigration court. These appeals can last for years with the alien detained the whole time under the old policy.

From a humanitarian perspective, this change is a substantial positive one. Those concerned about fairness and humaneness in the enforcement of immigration laws should take cognizance of this advance when appraising progress in immigration reform efforts over the past last year.