The Ninth Circuit decides Marinelarena en banc

Sunday, July 21st, 2019
By: Jonathan MontagJ.D.

Nearly two years ago, I blogged  about Marinelarena v. Sessions (Marinelarena I),  a case dealing with eligibility for relief for people who have committed crimes that may render them ineligible for relief because of the nature of the crimes. The relatively in depth discussion the earlier blog will get you up to speed on the issues.

The Marinelarena I decision boiled down to this:

1. Certain crimes can render a person removable.

2. Certain crimes can render a person ineligible for relief from removal.

3. The government must prove that a person is removable for a crime.

4. If the  Marinelarena I crime is of such a sort that a judge cannot determine if the person is removable or not, then the government had not met its burden and the crime does not render them removable for that crime.

5. If the person is otherwise removable (a person can be removable for multiple reasons – having overstayed a permitted period of stay, having committed other crimes or conduct that render them removable, or having entered the country without permission), certain crimes make one ineligible for relief from removal.

6. The non-citizen who is removable must prove that they are eligible for relief.

7. If the crime is of such a sort that a judge cannot determine if the crime makes the person eligible for relief or not, then the non-citizen has not met their burden and the person is not eligible for relief.

On July 19, 2019, the Ninth Circuit Court of Appeals, en banc, issued a new decision, Marinelarena II.  Marinelarena II changed Number 7 above to:

7. If the crime is of such a sort that a judge cannot determine if the person is removable or not, then the non-citizen cannot be shown to have committed a disqualifying offense and he is eligible for relief.

Here is an example:

1. A permanent resident gets convicted of crime. The criminal statute says if you did A or B, then you are guilty.

2. The immigration law says if you were convicted of A or B, you are removable.

3. However, if you were convicted of A, you are not eligible for forgiveness, but if you were convicted of B you are.

4. Court records, referred to as the record of conviction, do not make clear if the person was convicted of A or B.

5. Because the non-citizen was convicted of A or B, he is removable.

6. Under Marinelarena II, because the judge cannot determine if the crime was one that makes the person eligible for relief or not, then the citizen cannot be shown to have committed a disqualifying crime.

Now, lets put a little meat on these bare bones.

1. The non-citizen is committed of a drug crime. The crime could either be A or B. For example, any person who possesses drugs to sell (Crime A) or possesses drugs to share a small amount for a friend without the friend’s paying for the drugs (Maybe the friend will buy the pizza later.) (Crime B).

2. Crime A, possessing to sell, makes on ineligible for forgiveness. Crime B, possessing drugs to share does not make one ineligible.

3. The conviction records do not specify what kind of possession the person was convicted of – the Crime A type of the Crime B type.

4. Because it cannot be figured out from the conviction record whether the person committed Crime A or Crime B, he is not removable for Crime A.

5. Under the new Marinelarena decision, because it cannot be figured out from the conviction record whether the person committed Crime A or Crime B, the crime does not disqualify the person of eligibility for forgiveness.

Finally, lets put some clothes on the meat and bones.

1. Otto Mann, a school bus driver, gets convicted of reckless driving. His ticket says, “You drove recklessly.” He went to court and admitted only, “I drove recklessly.” Otto writes on the guilty plea form, “I drove recklessly.”

2. Under Springfield law, reckless driving is either A) speeding or B) changing lanes without signaling.

3. Under Springfield law, a person who gets convicted of reckless driving cannot drive a school bus for five years.

4. Under Springfield law, a person who can show that he never was convicted of speeding, can get his permission back if he shows that his reckless driving was aberrational and he most likely will never drive reckless again.

5. Because Otto was convicted of reckless driving, his school-bus-driving privileges are suspended. Under Marinelarena I, because the conviction records do not show if he sped or changed lanes illegally, he cannot prove that he did not speed and thus cannot get his permission back. Under Marinelarena II, because it is not provable whether he sped or not, it cannot be shown that he sped, and thus it cannot be said that was convicted of speeding. He is thus able to ask for his license back.

As some circuit courts agree with this view of the issue and some don’t, this case likely will go to the Supreme Court. Posted July 21, 2019.


 

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