United States v. Garcia-Santana, more chipping away at the Almanza-Arenas / Young burden of proof issue.

Thursday, March 13th, 2014
By: Jonathan MontagJ.D.

When an alien applies for relief from removal, he has to prove eligibility for the relief according to INA § 240(c)(4)(A). For some forms of relief, principally voluntary departure and Cancellation of Removal for Certain Nonpermanent Residents, one of the requirements for relief is that the applicant not have had any convictions for crimes of moral turpitude. Whether a crime is a crime of moral turpitude is indubitably among the issues most addressed by courts of appeals.

A big problem for aliens seeking relief is that if it is unclear whether a conviction is a crime of moral turpitude, then according to the BIA in Matter of Almanza-Arenas and the Ninth Circuit in Young v. Holder, the alien fails in meeting his burden to show eligibility.

Trying to figure out if a crime is a crime of moral turpitude has led to all kinds of methods of analysis. The BIA tried to expand what can be looked at besides conviction records. The 9th Circuit tried to expand the elements of a crime to include missing elements. These have been shot down, as discussed last here.

There are two basic scenarios where it is ambiguous whether a crime is a crime of moral turpitude. The first is where a crime is divisible – where the criminal statute includes several offenses, some of which are morally turpitudinous and others are not. An example is where a person is convicted of domestic violence battery. Battery under California law can be for force or violence. In the domestic violence context, force is not necessarily morally turpitudinous while violence usually is (never say always). If a person is convicted of battery, the question is whether there was force or violence involved. The Supreme Court, in Moncrieffe v. Holder, concluded that the immigration court cannot look outside the conviction record to make this determination. If the record of conviction is ambiguous, let’s say because the alien pled guilty to “using force or violence against my spouse,” then the person cannot prove eligibility for Cancellation of Removal or voluntary departure as the law stands now.

The second scenario is when an element is missing. Suppose a person is convicted of having sexual relations with a minor. At least in the 9th Circuit, not all such crimes are morally turpitudinous. An 18 year old having sex with a 17 year old is not morally turpitudinous while a 21 year old having sex with a 10 year old is. If the criminal statute does not list specific ages, then one would have to add the missing age element to the crime. It was this adding of the missing element that the Supreme Court shot down in Descamps v. United States. The question then is, if the statute does not indicate ages that are morally turpitudinous, does the alien fail to prove eligibility? According to a recent case in the Ninth Circuit, United States v. Garcia-Santana, an alien does not fail in meeting the burden of proof for eligibility for relief if the element is missing.

Garcia-Santana is an illegal entry case, which I have written about here. The case involves whether a crime is an aggravated felony, not whether a crime is a crime of moral turpitude. Like a person who was convicted of a moral turpitude crime, a person with an aggravated felony conviction is ineligible for voluntary departure. Ms. Garcia-Santana was convicted of “conspiracy” under Nevada law, which unlike the standard definition, does not have an “overt act” element. As this element was missing, according to the Ninth Circuit, Ms. Garcia-Santana could not be found to have been convicted of an aggravated felony when he was ordered removed. At his removal hearing, the immigration judge concluded that Mr. Garcia-Santana had been convicted of an aggravated felony and as a result found him ineligible for voluntary departure. The Ninth Circuit concluded that the immigration judge was wrong not to consider voluntary departure for Ms. Garcia-Santana and thus her removal hearing was faulty and she could not be tried for illegal reentry for returning to the United States after his removal.

Disappointingly, the court did not discuss the burden of proof issue for eligibility for relief of Matter of Almanza-Arenas and Young v. Holder, but by finding that the alien was improperly denied the opportunity to seek voluntary departure relief, the clear implication is that the burden of proof issue does not apply in missing element cases. That leaves the burden of proof issue as a concern in divisible statute cases. The Ninth Circuit is considering the issue in Almanza-Arenas v.  Holder en banc.  Perhaps Garcia-Santana is a foreshadowing of the demise of the Matter of Almanza-Arenas / Young v. Holder problem in the case of ambiguous divisible statute convictions in a case to come. Hopefully his new case will also be more explicit about the demise of the problem in missing element cases. Posted March 13, 2014.



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