Archive for the ‘ General ’ Category

BIA resists the normal way a court controls its docket.

Thursday, August 28th, 2014

A few months ago I attended a talk by a judge on the 9th Circuit Court of Appeals. She stated that about two thirds of immigration appeals before the court are resolved before the cases are briefed. Because of active efforts by the court to reduce the docket, by compelling mediation, by reviewing cases initially to see if they are properly filed, and by ruling on initial motions to dismiss, the court is working to control its docket.

Recently, I received a notice from the Board of Immigration Appeals, the administrative appellate body above the immigration courts. Regarding motions to remand – motions to send the case back to the immigration court, the Board wrote:

The Board generally does not separately adjudicate motions to remand. Due to the Board’s heavy caseload, it cannot be predicted when a decision will be rendered in this case. If a briefing schedule has been set in this matter, the filing of [a] motion to remand does not change the deadlines. The briefs must arrive at the Board by the dates set in the briefing schedule.

Hypothetically, suppose a motion to remand is filed with the Court of Appeals and at the same time, in another case, a motion to remand is filed with the Board of Immigration Appeals. Now, suppose the opposing parties notify the Court of Appeals and the Board of Immigration Appeals that they do not oppose the remand motions.

In the case of the Court of Appeals, desiring to reduce its docket, will review the motion and non-opposition, and because the parties agree and assuming no glaring error has been discovered when the case is reviewed, remand the case. The case then moves to the next forum and can be presumably be resolved quickly. The Court of Appeals rids itself of a case, a decision is made quicker, needless briefing that no one will read is eliminated, and the entire system becomes more efficient and cheaper to the litigants and to the taxpayers that pay the judges and pay the government’s litigators.

In the case of the BIA, despite an unopposed remand motion, the case sits on the shelf. The parties get no resolution. The BIA’s docket remains large, meaning the case will take even longer to be looked at. The BIA may even require briefing on issues that the parties have indicated do not need resolution. The BIA’s docket remains large, the case is not resolved, and the system remains bogged down.

The BIA should reconsider its policy of letting easily-resolvable cases fester on its storage shelves. Culling the easily resolved cases will speed up justice and save money. It may even make participants in the system a little less cynical about how the immigration court and BIA function. Maybe. Posted August 28, 2014.

Ninth Circuit Rendon decision reduces the reach of Young v. Holder

Wednesday, August 27th, 2014

I have written previously about how the Board of Immigration Appeals, the courts of appeal, and the Supreme Court have been struggling over how to determine whether an individual’s crime is a crime or moral turpitude or an aggravated felony. I wrote  three years ago about the 9th Circuit Court of Appeals’ en banc adventure in creating a missing element rule in trying to determine if a particular crime was a crime of moral turpitude or an aggravated felony in U.S. v. Aguila-Montes de Oca. A little more than a year ago I wrote  about how the Supreme Court overturned that decision in Descamps v. United States. I noted that there was still one issue still hot and unresolved in the area of determining how to characterize a conviction. This is the issue of whether an indeterminant record of conviction as to whether a person was convicted of an aggravated felony or a crime of moral turpitude can meet his burden of proving his eligibility for certain relief from being deported if those forms of relief require that one not be an aggravated felon or someone who committed a crime of moral turpitude. The BIA in Matter of Almanza-Arenas, and the Ninth Circuit Court of Appeals in Young v. Holder have said that a person cannot meet the burden when the conviction documents are indeterminant.

I wrote about how the Supreme Court, in Moncrieffe v. Holder,  shook the foundation of Matter of Almanza-Arenas and Young v. Holder,  but the decisions still stand. Last week, the 9th Circuit limited the impact of these cases in its decision in Rendon v. Holder. In Rendon v. Holder, the Court of Appeals explained that a person can only be found to have been convicted of the elements of a crime that specifically must have been found by the fact finder. The Court distinguished between divisible statutes, where a defendant is convicted of a crime defined by a distinct set of elements but other crimes with unique elements are bunched in the same statute, and a crime where any of a broad range of elements, of which the fact finders do not need to agree or which do not need to be specifically ascertained, result in a conviction. In such a case of “divisible elements,” one cannot be said to have been convicted of a crime defined by one of the divisible elements if it is possible to be convicted by another in the set of divisible elements. Specifically addressing Young  v. Holder, the Rendon court wrote:

Young held that, when a court applies the modified categorical approach, a petitioner cannot demonstrate eligibility for cancellation of removal on an inconclusive record because, in such a case, it is both “possible that Petitioner’s prior conviction constitutes an aggravated felony” and “possible that it does not.” []. That is because the modified categorical approach allows a court reviewing a prior conviction under a divisible statute to determine which of “several different . . . crimes” was at issue. [] In contrast, a defendant convicted of an indivisible statute has necessarily committed the one crime at issue, and that crime is either a match to the federal, generic crime, or it is not. The record is never inconclusive. Thus, if the petitioner establishes that the statute under which he was convicted is indivisible and punishes a broader range of conduct than the federal, generic crime, it is never possible for that conviction to qualify as an aggravated felony, and the petitioner has met his burden.

Rendon “clarifies” what is meant by ambiguity or indeterminantness in a conviction. It remains to be seen if the full court will allow for this weakening of Young or if it will hear Young en banc. Or, will the 9th Circuit finally rule on Matter of Almaza-Arenas, which has been pending before it since December 2010.  Posted August 27, 2014.

A difference of a day makes the immigration laws more consistent.

Wednesday, July 23rd, 2014

On July 21, 2014, Governor Jerry Brown signed SB 1310 into law which, oddly, has the State of California correct what appears to be a scrivener’s error in the Immigration and Nationality Act.

As harsh as the immigration laws are, there are areas where there is leniency in it. One such leniency is the petty crime exception. This exception makes takes away the harsh result of inadmissibility or deportability for one crime of moral turpitude. While figuring out what moral turpitude crimes is a complicated issue that courts of appeal constantly must confront, some crimes are established moral turpitude crimes. One such crime is theft. Another is domestic violence against a cohabitant. Understanding that people make mistakes, one such crime can is forgiven.

The removal laws are divided in two. There are crimes that lead to inadmissibility – stopping a person from entering the United States or becoming a permanent resident while in the United States, and crimes of deportability – crimes that lead a person in the United States being deported. Curiously, the list of crimes differ. For example, there is no ground of inadmissibility for a conviction for a firearms offense, but there is a ground of deportability for a firearms offense.

The petty crime exception also differs in the inadmissibility context and the deportability context. In the inadmissibility context, the exception, found at INA § 212(a)(2)(A)(ii)(II) states that inadmissibility does not apply to one crime of moral turpitude if:

the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The petty crime exception for deportability, found at INA § 237(a)(2)(A)(i)(II),  states that deportability for one crime of moral turpitude  committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) ) after the date of admission, does not apply if the alien is convicted of a crime for which a sentence of one year or longer may be imposed.

Careful reading reveals that a person convicted of a crime where the potential sentence is one year is protected under the inadmissibility exception but not the deportability exception. The deportability exception does not say in “in excess of one year,” but rather “one year or longer.”

There is no rational explanation for the difference, but Congress has never fixed it.

What difference, you may ask, does a day make? A lot. Here’s why. Crimes in California can be divided into two types – minor (pettier) ones are misdemeanors and more serious ones are felonies. Many crimes in California are wobblers – they can be charged as misdemeanors or felonies. Many stand-alone misdemeanors have a maximum sentence of six months, like shoplifting. Some have maximum sentences of one year. When a wobbler is charged as a misdemeanor, the usual maximum sentence is one year.

Should a person be convicted of a misdemeanor with a maximum sentence of one year (and meets the low actual sentence), he will be subject to the inadmissibility petty crime exception as the maximum sentence does not exceed imprisonment for one year. However, the same misdemeanor conviction does not fit the deportability exception because it is a sentence of one year or longer. This difference affects many people with one minor conviction when by all accounts the law was designed to insulate them from deportation for one minor crime.

The one-day difference also affects people seeking Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b),  – a form of relief for people in the United States without documentation for ten years or more and can show that their deportation would cause exceptional and extremely unusual hardship to their legal parents, spouse, or children. This relief is not available to people who have convictions for crimes of moral turpitude except if they fit under the petty crime exceptions. While one misdemeanor moral turpitude conviction would fit under the inadmissibility exception, it most often would not fit under the deportability exception. Thus, a person slapped on the wrist for a petty crime is ineligible for relief from deportation even if it would mean exceptional and extremely unusual hardship to a United States citizen family member.

SB 1310 cures this anomaly. It states, “Every offense which is prescribed by any law of the state
to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.”

This simple change does not give people appreciably lighter sentences (unless you consider one day of a year appreciable), but does effectuate the petty crime exception as the law probably intended. Congress has made the immigration laws harsher and harsher over the last twenty years. A change for the better is quite unexpected. Not remarkably, it is not the federal government that made the change, but the State of California.  Posted July 23, 2014.

Law of unintended consequences pulls and pushes in current immigration problem

Sunday, July 13th, 2014

The flow of families with children and unaccompanied minors has been dominating the news recently. The causes of the trend are beginning to be explored with some care and insight by the media after at first relying on, I hate to say it, the imbecilic conspiracy theories of Texas Governor Rick Perry (I hate to say imbecilic theories, so, Rick Perry fans, I have not said his theories are imbecilic) and the Republican Party’s blame President Obama answer to any question.  I predict that within a year or two Republicans will be blaming global warming on President Obama – “If only he led instead of making speeches, we wouldn’t be in this mess.”

I discussed some of the causes of the family surge here and the media has discovered the the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) and the Special Immigrant Juvenile Status (SIJS) program the TVPRA created based on a noble goal of protecting children, except Mexican children, from abuse, abandonment, or neglect. There is little doubt that the unintended consequences of poor funding of immigration programs and the humanitarian goals of the TVPRA have contributed to the present border problem. I resist the hyperbolic reference to this problem as a crisis. The U.S. is dealing with the arrival of approximately 50,000 families and children fleeing the ravages to our south. In a country of 318 million, that is a problem. Jordan, a country of 6.6 million, has had to deal with 1.2 million refugees fleeing the ravages to its north. That is a crisis.

The immigration funding issues and the TVPRA have had  unintended consequences as pull factors – factors attracting families and children to the United States. However, in addition, there are unintended consequences of U.S. policy that have created many push factors – reasons that lead families and children to leave their Central American homes.

America’s history of involvement in Latin America  has led to the poverty and oppression that people are fleeing. You don’t have to be a Marxist political scientist to see that funding and support of right wing dictators, armies, and militias over impoverished peasants and indigenous populations seeking a little justice and a little piece of the pie is going to have the unintended consequence of causing people to leave their countries out of fear and need.

Deporting U.S. resident gang members back to Central America by the thousands per year since 2001 has had the unintended consequence of causing gang violence to pervade Central America. Supporting a drug war in South America and Mexico has had the unintended consequence of moving the drug violence to Central America.

It is not like America has been sitting around minding its business and suddenly thousands and thousands of people are showing up at our borders. It is caused by the unintended consequences of U.S. policies. More enforcement and abrogating laws providing for human rights protections may help stem the flow a little by reducing some of the pull factors, but without seriously addressing U.S. policies that lead to unintended push factors, the problem will not be solved. Despite making it more miserable for people to come and stay in the United States, it is still going to be more attractive to try than facing  torture and death in Latin America so people will continue to come. Posted July 13, 2014.