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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Recent Developments In Criminal Immigration Law - February 2008

by Norton Tooby and Joseph Justin Rollin

[1] ARTICLE -- COURT OF APPEALS AUTHORITY TO OVERRULE BOARD OF IMMIGRATION APPEALS APPLIES WHERE STATUTE IS UNAMBIGUOUS AND THERE IS NO ROOM FOR AGENCY DISCRETION TO WHICH DEFERENCE IS REQUIRED

In National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-983, 125 S.Ct. 2688 (June 27, 2005), the Supreme Court stated:

"A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion... Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. " (Emphasis added).
Congress is not presumed to overrule existing law sub silentio.  The categorical analysis and divisible statute rules were in place before the recent immigration legislation was enacted.  There are strong arguments that the BIA's decision in Matter of Babaisakof, 24 I. & N. Dec. 306 (BIA 2007), does not qualify as the type of subsequent administrative interpretation under the Supreme Court's test in Brand X  that can abrogate the Ninth Circuit fraud decisions.  See Brand X, supra, 545 U.S. at 982: "A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion."  In Chang v. INS, 307 F.3d 1185 (9th Cir. 2002), the Ninth Circuit's language suggests its decisio n was based on the "unambiguous terms" of INA 101(a)(43)(M)(i) and the statutory definition of conviction at INA 101(a)(48)(A): "To adopt the government's approach would divorce the $10,000 loss requirement from the conviction requirement, see 8 U.S.C. 1227(a)(2)(A)(iii) (providing that an alien is deportable 'who is convicted of an aggravated felony'."  Chang v. INS is the type of circuit decision that the Court in Brand X said is not subject to abrogration by a later administrative interpretation.  The argument may not be as strong for Matter of NAM, 24 I. & N. Dec. 336 (BIA 2007) (offense need not be an aggravated felony to be a particularly serious crime for withholding purposes), or in other circuits, but in the Ninth Circuit, because Chang was linked to statutory construction and not just the Taylor/Shepard analysis, the BIA's later interpretation cannot overrule the Ninth Circuit's decision in Chang v. INS.  Li v. Ashcroft, 389 F.3d 892 (9t h Cir. 2004), or the other 9th Circuit fraud cases, may offer additional support.  Thanks to Dan Kesselbrenner.  

[2] NATIONAL LAW

REGULATIONS - VALIDITY -- MOTION TO REOPEN - AFTER DEPARTURE FROM UNITED STATES
IMMIGRATION COURT JURISDICTION AFTER DEPORTATION OR DEPARTURE FROM UNITED STATES
The regulations provide that departure from the United States under an order of deportation, or while a removal order is on appeal to the BIA, shall render the immigration judge's decision final and bar any motion to reopen or reconsider.  8 C.F.R. 1003.2(d), 1003.4.  However, many circuits have challenged the validity of these regulations.  William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8 C.F.R. 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase "is the subject of"); Contreras-Rodriguez v. United States Att'y Gen., 462 F.3d 1314 (11th Cir. 2006) (departure regulation does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) ("Under 8 C.F.R. 1003.4, any voluntary departure from the United Sta tes following entry of an order of deportation will be deemed to withdraw a pending appeal and to render the order of deportation final.").  Thanks to Rachel E. Rosenbloom; Beth Werlin.

STATUTORY CONSTRUCTION - DECLARES WHAT HAS ALWAYS BEEN THE LAW
A judicial decision interpreting a statute does not announce a new rule.  For example, INS v. St. Cyr, 533 U.S. 289 (2001) was a case of statutory interpretation.  121 S.Ct. at 2278.  As such, its holding did not change the law.  See Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994).  Rather, St. Cyr "finally decided what [IIRAIRA] had always meant and explained why the [BIA and the] Courts of Appeals had misinterpreted the will of the enacting Congress." 511 U.S. at 313 n. 12, 114 S.Ct. 1510.

REMOVAL PROCEEDINGS - WITHDRAWAL OF ADMISSIONS OF FACT AND CONCESSIONS OF DEPORTABILITY
How does counsel withdraw a prior admission to facts contained in the NTA or a prior concession of removability under one of the charged grounds?  See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 826 (9th Cir.2003) ("we may consider an issue regardless of waiver if the issue is purely one of law and the opposing party will suffer no prejudice or if new issues have become relevant while the appeal was pending because of a change in the law.")  In that case, Huerta-Guevara conceded deportability, then filed an appeal to the BIA contesting deportability on the basis that her crime was not an aggravated felony.  The Ninth Circuit found that her concession was not dispositive.  This holding has been applied in three unpublished BIA cases.  (2007 WL 275744, 2007 WL 1059685, and 2006 WL 2008223.)  Counsel can argue if there is no waiver for appeal purposes, then there should be no waiver in pending removal proceedi ngs, provided that the opposing party will suffer no prejudice.  Counsel should file a motion to change the pleadings as soon as possible so that the IJ cannot say counsel waited too long to do so.  Thanks to Michael K. Mehr.

TRAVEL DURING PROCEEDINGS
Some authority exists for allowing travel during removal proceedings.  Former O.I. 235.1(k)(4); Letter, Cronin, Asst. Comm., Inspections, reported in 10 AILA Monthly Mailing 497-99 (July/Aug. 1991);  Inspector's Field Manual at 13.1, 17.1; 8 C.F.R. 223.2(g).

BOARD OF IMMIGRATION APPEALS -- INADMISSIBILITY - UNLAWFUL PRESENCE BAR INA 212(a)(9)(B)(i)(II)
Matter of Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007) (noncitizen who is unlawfully present in the United States for one year, leaves the United States, and then seeks admission within 10 years of departure, is inadmissible under INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(2)(B)(i)(II), even if the departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings; noncitizen may not adjust status).  For more information on this subject, see N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 18.10 (2007).

BOARD OF IMMIGRATION APPEALS -- INADMISSIBLITY - UNLAWFUL PRESENCE BAR INA 212(a)(9)(C)(i)(I)
Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007) (to be inadmissible under INA 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(C)(i)(I) (2000), a noncitizen must leave the United States after accruing an aggregate period of "unlawful presence" of more than one year and thereafter reenter, or attempt to reenter, the United States without being admitted; noncitizen may not adjust status), disagreeing with Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006); Padilla-Caldera v. Gonzales, 426 F.3d 1294, amended and superceded on reh'g, 453 F.3d 1257 (10th Cir. 2005).

BOARD OF IMMIGRATION APPEALS -- CRIME OF MORAL TURPITUDE - INADMISSIBILITY -- ADMISSION IN LIEU OF CONVICTION
CONTROLLED SUBSTANCES -- INADMISSIBILITY -- ADMISSION IN LIEU OF CONVICTION
INADMISSIBILITY - ADMISSION OF FACTS - FINDING OF GUILT CANNOT BE BASED ON INFERENCES FROM FACTS RESPONDENT REFUSES TO ADMIT
In the absence of a conviction, a finding of guilt cannot be based on inferences of facts that the noncitizen has failed or refused to admit. Matter of GM, 7 I. & N. Dec. 40 (Att'y Gen. 1956); Matter of EN, 7 I. & N. Dec. 153 (BIA 1956).  For more information on this subject, see N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 18.8 (2007), N. TOOBY, J. ROLLIN & J. FOSTER, CRIMES OF MORAL TURPITUDE 4.4 (2005).

[3] CIRCUIT COURT DECISIONS

SECOND CIRCUIT -- JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS HAS NO AUTHORITY TO ISSUE REMOVAL ORDER IN FIRST INSTANCE
Rhodes-Bradford v. Keisler, ___ F.3d ___, 2007 WL 3284706 (2d Cir. Nov. 7, 2007) (BIA has no authority to issue a removal order in the first instance, after IJ had ordered termination of proceedings).

SECOND CIRCUIT -- POST CON RELIEF - FEDERAL - CORAM NOBIS
Qiao v. United States, ___ F.Supp.2d ___ (S.D.N.Y., Nov. 15, 2007) ("Qiao has shown that (1) his guilty plea was the product of ineffective assistance of counsel and as such, should be set aside to "achieve justice"; (2) his administrative efforts challenging the designation of his 1999 conviction as an aggravated felony constitute "sound reasons . . . for [his] failure to seek appropriate earlier relief"; and (3) the removal proceedings brought by DHS against Qiao cause him "to suffer legal consequences from his conviction that may be remedied by granting of the writ." Id. at 90.  Accordingly, Qiao's petition for a writ of error coram nobis is granted, and Qiao's conviction and sentence for mail fraud and conspiracy to commit mail fraud is hereby vacated.").  For more information on this topic, see N. TOOBY, POSTCONVICTION RELIEF FOR IMMIGRANTS 5.43 (2004).

FOURTH CIRCUIT -- ILLEGAL REENTRY - SUPPRESSION OF IDENTITY INFORMATION FLOWING FROM ILLEGAL ARREST
United States v. Oscar-Torres, ___ F.3d ___ (4th Cir. Nov. 8, 2007) ("After arresting Raul Mesa Oscar-Torres without a warrant as part of a nationwide initiative to apprehend illegal alien gang members, law enforcement officers fingerprinted him and thus obtained his criminal and immigration records. The Government then charged him with one count of illegally reentering the United
States following commission of a felony and deportation, in violation of 8 U.S.C.A. 1326(a) and (b)(1) (West 2005 & Supp. 2007). Prior to trial, Oscar-Torres moved to suppress the fingerprint evidence and the records obtained through it as the "fruit" of his illegal arrest. The district court denied the motion, reasoning that this evidence constituted "identity" evidence and therefore could never be suppressed. Oscar-Torres conditionally pled guilty, reserving the right to appeal denial of his suppression motion. We reverse and remand for further proceedings.").  NOTE: This case is concerned a Fourth Amendment violation applicable to criminal proceedings, not the much more difficult Fifth Amendment protection.

FIFTH CIRCUIT -- JUDICIAL REVIEW - PETITION FOR REVIEW - FUGITIVE DISENTITLEMENT DOCTRINE - APPLICTION TO POLITICAL ASYLUM
Giri v. Keisler, ___ F.3d ___ (5th Cir. Nov. 7, 2007) (fugitive disentitlement doctrine may be invoked to dismiss a petition for review of a BIA decision by a fugitive alien: "It is uncontested that the Giris have become fugitives since they filed their petition for review with this court. Consequently, they now wish to invoke the protection that a favorable decision from this court would provide, without submitting themselves to the risk of an adverse ruling. While it is certainly possible that the Giris may eventually decide to comply with their removal order following an adverse ruling in this matter, there is no indication that they will do so, and thus any decision on the merits, unless it is to petitioners' liking, may have no practical effect whatsoever. It is, as the Ninth Circuit suggests, akin to a game of "heads I win, tails you'll never find me." We can find no reason to indulge such conduct, and therefore conclude that th e fugitive disentitlement doctrine serves to bar further review of the BIA's decision.").

Contrary to this decision, it would be possible to argue that where asylum is involved, there are life and death issues of submitting to deportation before the Court rules, and that some procedure short of fugitive disentitlement would be appropriate.  See Bernal-Garcia v. INS, 852 F.2d 144 (5th Cir. August 19, 1988).
Thanks to Lisa Brodyaga.

SIXTH CIRCUIT -- CRIMES OF MORAL TURPITUDE - DEPORTATION
ADMISSION - ADJUSTMENT OF STATUS DOES NOT BEGIN A NEW FIVE-YEAR PERIOD
Zhang v. Mukasey, ___ F.3d ___, 2007 WL 4191756 (6th Cir. Nov. 29, 2007) (adjustment of status does not constitute an "admission" for purposes of starting the five-year period within which a CMT must be committed to trigger deportation under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a) (2)(A)(i)), agreeing with Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004); Abdelqadar v. Gonzales, 413 F.3d 668, 673 (7th Cir. 2005); Aremu v. Dep't of Homeland Sec., 450 F.3d 578, 581 (4th Cir. 2006), disagreeing with Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).

NINTH CIRCUIT -- REMOVAL PROCEEDINGS - EVIDENCE - AUTHENTICATION
Petrosyan v. Mukasey, __ F.3d __, 2007 WL 4168985 (9th Cir. Nov. 27, 2007) (respondent may seek to authenticate a foreign public document by any means established under 8 C.F.R. 287.6(c), Fed. R. Evid. 901 or any other recognized procedure, including through testimony of respondent).  For more information on this subject, see N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 15.26 (2007).

NINTH CIRCUIT -- CRIMES OF MORAL TURPITUDE - SOLICITATION
Barragan-Lopez v. Mukasey, ___ F.3d ___, 2007 WL 4125266 (9th Cir. Nov. 21, 2007) (Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-1002(A) and (B)(2), 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), since this ground does not specifically list "attempt" and "conspiracy," and thus does not impliedly exclude "solicitation").

Note: The court applied a "target offense" analysis.  Under this analysis, solicitation to commit a non-CMT offense should not be considered a CMT.  The case also holds that solicitation offenses are included in INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), because that section does not mention "attempt and conspiracy" to the exclusion of other non-substantive offenses.  This case would not apply to the CMT ground of inadmissibility, since INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I) does include the "attempt or conspiracy" language, and thus impliedly excludes solicitation offenses.  The same holds true for any other ground of deportation or inadmissibility that lists attempt and conspiracy, but not solicitation, such as the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and the aggravated felony ground of depo rtation, INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), inter alia.

NINTH CIRCUIT -- NATURE OF CONVICTION - CATEGORICAL ANALYSIS - LIMITS ON DUENAS "REALISTIC PROBABILITY OF PROSECUTION" TEST.
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) ("Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no "legal imagination," Duenas-Alvarez, 127 S.Ct. at 822, is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime."); United States v. Vidal, __ F.3d __, 2007 WL 2937015 (9th Cir. Oct. 10, 2007) (same).  See also Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007) (listing unpublished California cases as evidence that statutory rape is prosecuted in the case of 17-year-old victims).

NINTH CIRCUIT -- AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - PUBLIC INDECENCY TO CHILD
Rebilas v. Keisler, ___ F.3d ___ (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U); statute includes acts that do not involve touching or knowledge of the child, and therefore do not involve sexual abuse of a minor).  Note: the court examined Arizona state caselaw, applying Duenas.

POST-CONVICTION RELIEF

FINDING LOCAL POST-CONVICTION COUNSEL
Immigration counsel can encounter criminal convictions from across the country that trigger adverse consequences for their clients.  Once the post-conviction strategy is set, it is important to find local counsel who is the best possible person to persuade the prosecutor and court to agree to grant post-conviction relief.  A thorough way to do this is to make a sufficient number of phone calls asking a battery of qualifying questions, and ultimately the same name will be recommended again and again, by more than one person, giving great assurance this is the best person for the job.  One time, we retained a former law partner of the judge who would hear the case (and who was still on good terms with him).  We also want to make sure the person meets other qualifications, such as being academically sharp, extremely experienced and well respected by the prosecutor's office, experienced in obtaining PCR ideally for immigration reasons, etc.  For more information on this subject, see N. TOOBY, POST-CONVICTION RELIEF FOR IMMIGRANTS 6.57 (2004); N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 11.26 (2007).
 
MASSACHUSETTS -- POST CON RELIEF - GROUNDS -- STATE ADVISAL STATUTES
Commonwealth v. Rodriquez, ___ Mass. App. ___ (Ct. App. Nov. 16, 2007) ("We agree with the motion judge that because the defendant now also faces immigration consequences about which she was not warned (denial of readmission), the plain language of the statute requires that the defendant be permitted to withdraw her guilty plea.  More specifically, we conclude that the defendant's conviction -- a drug-related "aggravated felony" for purposes of immigration law -- results in the automatic, and now permanent, denial of readmission to the United States, see 8 U.S.C. 1182(a)(9)(A) (2000), and that this is an "enumerated consequence" of the defendant's plea about which she was not warned.").   For more information on this subject, see N. TOOBY, POST-CONVICTION RELIEF FOR IMMIGRANTS 6.57 (2004).

TEXAS - POST-CONVICTION RELIEF -- STATE ADVISAL STATUTE VIOLATION REVERSAL
Kelley v. State, 2007 Tex. App. LEXIS 8821 (Ct. App. Nov. 6, 2007)(when the trial court fails to admonish a defendant about the immigration consequences of his guilty plea, a silent record on citizenship, or a record that is insufficient to determine citizenship, establishes harm by the standard of Rule 44.2(b).).

Copyright (c) 2007 by Norton Tooby. All rights reserved.


About The Author

Norton Tooby is a criminal defense attorney with offices in Oakland, California. After graduating from Harvard University in 1967, he attended Stanford Law School where he served as President of the Stanford Law Review in 1969-1970. Since 1986, he has specialized in criminal defense of non-citizens, and his career has been devoted almost entirely to criminal defense work, culminating in the successful appeal of a death penalty case before the California Supreme Court under Chief Justice Malcolm Lucas in 1988 in which all convictions were reversed and his client was set at liberty. Since that time, he has increasingly specialized in criminal representation of immigrants.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.


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