Archive | January, 2015

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

13 Jan

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.

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

11 Jan

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

9 Jan

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.