BIA: Sex with Minor More than Three Years Younger is Aggravated Felony

Case: Matter of Juan Esquivel-Quintana, 26 I&N Dec. 469, BIA, January 9, 2015

Holding: The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be “more than three years younger” than the perpetrator, categorically constitutes “sexual abuse of a minor” and is therefore an aggravated felony under section 101(a)(43)(A) of the INA.

Analysis: This opinion makes clear that the BIA is still struggling to come to terms with the Supreme Court’s decision in Descamps. Traditionally in immigration law, the BIA applied the “categorical approach” to statutory interpretation, which was very friendly to immigrants. A criminal offense was only deportable if it was “categorically” so, meaning every instance of the offense was deportable. If a criminal offense potentially encompassed conduct that was not deportable under the INA, then the offense was not deportable, regardless of an alien’s conduct in any specific case. Apparently fed up with not being able to “look behind” the offense, the BIA adopted the “modified categorical approach” of Silva-Trevino that allowed them to divide statutes up and examine records of conviction.

The Supreme Court put the BIA back into the box of the categorical approach in Descamps, ruling that divisible statutes are only those with clearly distinct, enumerated parts. So, what does the BIA do when it cannot divide statutes or look at records from the case, yet is confronted with a standard like “sexual abuse of a minor”, in which the states, in the BIA’s words, “categorize and define sex crimes against children in many different ways”? If the BIA can only include those crimes which categorically involve sexual abuse of a minor, a lot of deportable conduct would be excluded.

In this case, the BIA finds that statutory rape is categorically “sexual abuse of a minor” if there is more than three years differential between the perpetrator and the victim. It so happens that the California statute at issue defines the offense in that way. The BIA acknowledges that not every state does the same, so “we must, as a practical matter, evaluate statutes individually and define ‘sexual abuse of a minor’ under the Act on a case-by-case basis.” This is an invitation to a lot more challenges from other states.

It also seems to me that the BIA actually got the categorical approach wrong in their analysis. The BIA finds, “The respondent argues that in applying this categorical analysis, the Board must hold that unlawful intercourse with a minor more than 3 years younger than the perpetrator in violation of section 261.5(c) of the California Penal Code is categorically not ‘sexual abuse of a minor’ under section 101(a)(43)(A) of the Act.” In answering this question, the BIA concludes, “Specifically, we are not prepared to hold that a 16- or 17-year-old categorically cannot be the victim of sexual abuse.” But, the burden is on the government to show that a crime categorically is an aggravated felony, not for the respondent to show that an offense is categorically not deportable. So, he should not have to show that a 16- or 17- year categorically cannot be the victim of sexual abuse. He must simply show that sometimes they are not even with a three-year differential in a consensual sexual relationship.

Nevertheless, this case gives a glimpse at how the BIA is going to deal with ambiguous statutes in a post-Descamps world. And it isn’t pretty.

2nd Circuit: LPR who Adjusted After Admission is Eligible for 212(h) Waiver

Case: Husic v. Holder, Docket No. 14-607, 2nd Circuit, January 8, 2015

Holding: An alien who entered the country lawfully but not as an LPR, and who later adjusted to become an LPR, is not considered “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” under INA 212(h). Since he does not fall under that definition, he is eligible for a 212(h) waiver.

Analysis: This case represents yet another circuit court disagreeing with the BIA on this same issue. INA 212(h) is not available to an alien who has either an aggravated felony conviction or less than 7 years of lawful presence if he has “previously been admitted to the United States as an alien lawfully admitted for permanent residence.” The question is whether someone who was previously lawfully admitted but not as a permanent resident but later adjusts status in the United States, falls under this definition. The BIA says such a person would still fall under the definition but the Second Circuit now becomes the eighth federal appellate court to reach the opposite conclusion.

The problem arises from a lack of clarity in the language and definitions in the INA. An admission is a lawful entry after inspection and authorization by an immigration officer. An adjustment is a change of status to “an alien lawfully admitted for permanent residence.” The dispute is whether an adjustment therefore is an “admission” or at least the functional and legal equivalent to an “admission” such that an adjustment of status should be considered an “admission” for the purpose of interpreting this statute. That is what the BIA says. The Second Circuit and other courts have disagreed. They read the statute more literally. A previous admission as a permanent residence means both of those things must have happened together: (i) a lawful admission (ii) as a permanent residence. Under this interpretation, an adjustment is changing someone’s status to that of a permanent resident but is not a new admission.

The aggravated felony bar to removal relief is comprehensive and can be harsh in many cases. For a lot of people, the 212(h) waiver is the only option they have to present their equities to the immigration court and hope to stop their deportation. The alien must still have a relative to sponsor him and must still be able to show extreme hardship to immediate relatives unless it has been more than 15 years since his conviction. Therefore, this relief is still only available to a limited number of people. But, for those who are eligible and who adjusted status, this can be a lifeline to staying in the country.

BIA: Texas “Deadly Conduct” Offense is Crime Involving Moral Turpitude

Case: Matter of O.A. Hernandez, 26 I&N Dec. 464, BIA, January 8, 2015

Holding: The offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.

Analysis: Defining a “crime of moral turpitude” has always been a seemingly subjective and open-ended task because which crimes are morally reprehensible as opposed to just illegal is often in the eye of the beholder. The BIA confronts that question yet again in this case, in which it ruled that the offense of “deadly conduct” under section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.

Mr. Hernandez was convicted of deadly conduct, a Class A misdemeanor, and sentenced to 90 days in county jail. In removal proceedings, his application for cancellation of removal was denied on the grounds that he had been convicted of a crime involving moral turpitude in which a sentence of one year or more could be imposed. He was ordered removed and filed this appeal.

The BIA divides the analysis into two parts: the mens rea (recklessness) and the act (conduct that places another in imminent danger of serious bodily injury). The BIA starts with the proposition that an offense  must have some level of scienter to constitute a “crime of moral turpitude”, but it need not be intentional. Recklessness is sufficient if it is defined as “a conscious disregard of a substantial and unjustifiable risk posed by one’s conduct.”

The remaining question then is whether the act is sufficiently “vile or depraved” to be a CIMT. On the one hand, the statute does not require any harm to have actually occurred. On the other hand, the crime involving placing another in danger of imminent serious harm. The BIA concludes that this behavior is sufficiently “reprehensible” to be a crime involving moral turpitude.

This opinion seems to mark the creeping expansion of moral turpitude crimes in terms of both the level of culpability and the harmfulness of the conduct.

 

What is a “Crime Involving Moral Turpitude”

If an immigrant is convicted of a “crime involving moral turpitude” (CIMT), there are a number of negative repercussions for his immigration status. First, he is inadmissible to the United States, meaning that he may be denied entry if he leaves the country and tries to come back. He may be deportable, if he was convicted of a CIMT within 5 years of entry or of 2 or more CIMTs. He may also be ineligible for certain benefits, like permanent residence, or defenses to deportation, like cancellation of removal. Therefore, it is extremely important to avoid a conviction for a crime involving moral turpitude?

But, what is a crime involving moral turpitude? The answer is nobody knows for sure. There is no statute that defines this term. There is also no case that provides a specific definition of this term. The most the Board of Immigration Appeals has said is that it involves conduct that is inherently vile or depraved, or involves fraud or deceit. But, this does not make clear which specific crimes are considered vile or deceitful, and are therefore crimes involving moral turpitude.

Two recent cases make this problem clear. In one case, Matter of Ortega-Lopez, the BIA found that a conviction for animal fighting, such as dog fighting or cock fighting, is a crime involving moral turpitude. The BIA admitted that no court had every addressed this issue before. Nonetheless, it said that animal fighting is inherently base or vile conduct, and therefore a crime involving moral turpitude.

In a second case, Marin-Rodriguez v. Holder, the Seventh Circuit ruled that using a fraudulent Social Security card to obtain employment is a crime involving moral turpitude. Similar crimes, such as possessing a fraudulent Social Security card, are not crimes. Likewise, obtaining employment under false pretenses is not actually a crime (although using false documents is). Nevertheless, the court said that it is a CIMT because it involved conduct that was deceptive.

“Moral turpitude” means depravity or wickedness. One can argue whether these crimes qualify for that definition. There are some people who would find that animal fighting is truly evil, but others might feel that it is wrong but not necessarily wicked or depraved. Still others might not find it wrong at all. As the BIA pointed out in the opinion, it was not even illegal in the United States until the 1970s, and of course it is legal and commonly practice in many countries around the world. Likewise, many people may feel that using a fake Social Security card to work may be against the law, but is not inherently evil, wicked or depraved. After all, as the court itself pointed out, is common, indeed ubiquitous behavior in our society today.

In other words, reasonable people can disagree on whether these, and many other crimes, meet the definition of moral turpitude. There are two problems though. First, the courts are making decisions that basically involve their personal judgment of vague, non-legal terms like “wicked” or “deceitful” on a case-by-case basis. This is not a good way to make laws that are supposed to be objective and consistent. Second, this way of making law does not provide the alien or his defense attorney adequate notice of what crimes are going to lead to severe immigration consequences. This is a violation of basic due process, which says that people should be on notice of what the law is before they are punished.

The government should eliminate this category of crimes or find a different way of defining it that is more consistent and fair. In the meantime, immigrants need to be very aware that a crime that is not even mentioned in the immigration statutes could lead to serious problems.

Will Reform Address the Backlog in Immigration Courts?

The Texas Tribune reports that Comprehensive Immigration Reform is more than about building a border fence and creating a legalization program. There are less prominent, but still very important, other problems that reform could address. For example, the Tribune points to the backlog of cases in immigration courts around the country, which leads to cases dragging on for months or years. This makes it hard for people to move on with their life and is especially tough for people in detention. The article says:

“What the draft does contain, however, is language that would add 140 additional immigration judges to alleviate the backlog in the current system. Data obtained through open records requests filed by the Transactional Records Access Clearinghouse at Syracuse University shows that almost 324,000 immigration cases are currently awaiting a resolution. The caseload in Texas courts is the third-largest in the country, with about 41,760 outstanding.”

The TRAC data is interesting. It shows that of the 41,760 cases pending in Texas, both Houston and San Antonio have over 10,000 cases pending in their courts. There are several thousand more pending in Dallas, El Paso, and Harlingen. The average case in a Texas immigration court has been pending for over one year — 393 days — meaning many cases have been pending much longer. Broken down by court location, the average days pending are 490 in Houston, 472 in El Paso, 396 in Dallas, and 318 in San Antonio.

While hiring more immigration judges is a necessary response, a better response would be giving judges more power to dismiss cases involving minor criminal conduct. In the article, David Leopold, past president of the American Immigration Lawyers Association, points that prior to the 1996, judges had much more discretion to dismiss cases and we did not face the same kind of backlog. He advocates returning more discretion to immigration judges.

Cancellation of removal for lawful permanent residents is a good example of this. LPR cancellation is only available to LPRs who have been continuously present for at least seven years, have been LPRs for at least five years, and do not have a conviction for an aggravated felony. These additional requirements are unnecessary because they are already factored into the discretionary decision. The judge is already asked to factor in length of presence, immigration violations, and criminal record. For example, if someone had a severe aggravated felony, such as murder, it is very unlikely he would be granted cancellation anyway. But there may be some people with less serious crimes, still classified as aggravated felons, who are good candidates for cancellation but are not permitted to apply due to this categorical ineligibility. LPR cancellation should be more broadly available, allowing judges to weigh all the factors and make individual determinations.

For immigration reform to truly be comprehensive, it needs to deal with all of the problems in the system, including the backlog of cases in immigration courts.

Overturning Old Convictions After Chaidez

Yesterday, the Supreme Court ruled that Padilla does not apply retroactively to convictions that were final at the time of the Padilla decision. In other words, there is no basis for arguing that a pre-2010 criminal conviction should be overturned on the grounds that the alien was not advised of the immigration consequences of a guilty plea by his defense attorney as required by Padilla. This will naturally make it much harder to get out of old convictions that make someone deportable.

However, it is not impossible to overturn old convictions. Remember that, long before the Padilla decision was handed down, immigrants were getting convictions overturned in order to stop deportations or make them eligible for immigration benefits. Those options are still in place.

For example, I had a client in removal proceedings because she had two convictions for crimes involving moral turpitude in Ohio. These were theft by check convictions from the early 1990s. Ohio had a law at the time that judges were required to advise any non-citizen that a guilty plea could have immigration consequences. Moreover, if there was no record of this advisal being given in the court transcript, it is presumed that the advisal was not given and the conviction in invalid. We found the transcripts and were able to show that there was no record of the client being so advised. Accordingly, the convictions were overturned and the removal proceedings terminated.

The lesson is that old convictions can still be overturned for all sorts of reasons. There may be statutory or case law in a particular state that required immigration warnings even before Padilla. Additionally, convictions can be void for reasons having nothing to do with immigration. Or, a sentence can be modified if the immigration consequences are severe.

Chaidez is a bad result for immigrants because it takes away one argument that could be used to overturn old convictions. But it would be a mistake to think this is the only argument, or that there is no hope in overturning prior convictions that are creating immigration problems today.

Padilla Loopholes

Most immigrants are aware of the Supreme Court’s decision in Padilla v. Kentucky, which says criminal defense lawyers must properly advise their clients of the immigration consequences of any criminal plea. However, many defendants fall through the cracks. An article in yesterday’s Washington Post discusses the problem of defendants who are not appointed defense counsel in the first place and plead guilty on their own. Therefore, they are never explained the immigration consequences of that plea.

The article discusses the case of Luis Bladilir Lopez. He was charge with marijuana possession. The prosecutor said he would not seek jail time and therefore, under the rules of most criminal court, including those in Texas, he did not have the right to appointed counsel. After being told that he would only have to pay a fine and have a suspended license for 6 months, and no jail time, Luis entered a guilty plea. He was later picked up by ICE and deported, as drug offenses carry significant weight in deportation hearings, even if only misdemeanors.

The article can be found here: http://www.washingtonpost.com/local/crime/immigrants-take-guilty-pleas-without-lawyers-and-can-later-be-deported/2013/01/27/ec70be46-591a-11e2-88d0-c4cf65c3ad15_story.html

This is an important hole in the protections that Padilla is supposed to provide. Even if defense attorney are competent with immigration law and correctly advise their clients, this does not matter if defendants are not being appointed attorneys in the first place.

There are two solutions. First, prosecutors and judges need to take responsibility in these cases. They should appoint counsel in cases where they may be no jail time but there could be severe immigration consequences. Or, they could advise defendants of the immigration consequences before making any plea offer or accepting any plea.

For immigrants who are charged with a crime, the lesson is also clear. Just because you have not been appointed an attorney does not necessarily mean that you will not face immigration consequences if accept a plea with no jail time. The federal government uses its own criteria to determine deportability, which could happen even without jail time. Therefore, people in such situations must take the initiative and insist on an attorney before accepting any plea.

Immigration Reform

Today is really the start of the immigration reform debate in Washington. A group of eight senators from both parties issued an outline of the principles that will guide their reform bill. These principles will form the basis for the debate in the coming months. The document is here:

http://apps.washingtonpost.com/g/page/politics/bipartisan-framework-for-immigration-reform-report/27/

There are a few notable features. First, it creates a provisional status for those here illegally. For a while, we have heard that there would be a “pathway to citizenship” for undocumented immigrants but they would have to go to the “back of the line”. It was never clear how this would work. There are still some questions, but it looks like they want to create a provisional legal status immediately, then grant permanent status once other things, like better border security, have happened. This is similar to what they did for Dreamers last year, creating an immediate provisional status, to take away the threat of deportation and provide work authorization, to be followed later by a permanent change of status. Just like with DACA, applicants would have to pass a criminal background check.

Incidentally, those who got deferred action for childhood arrival (DACA) will be on a faster track to permanent residence under this proposal.

Another interesting claim is that those with this provisional status will only get permanent residence after everybody waiting in line gets their green cards first. Since some people with family-based petitions have priority dates of 20 years ago, this would seem to be a long wait. Perhaps, they will issue a lot of green cards temporarily to clear the decks of everyone waiting in line. If so, people should apply now to get in line, even if it seems like a long wait, like a Mexican sibling of a US citizen. That wait might get a lot shorter. In fact, later in the document, they stress their intention to reduce backlogs for family-based visa petitions.

A lot more information will come out in the coming weeks and months. But, this document is important for setting the terms of the debate over immigration reform this year.