This is a very sad week for immigration law and law in general. Judge Stephen Reinhardt (aka the Liberal Lion) died this week from a heart attack. He was eighty-seven years old and still serving as a judge. He served on the Ninth Circuit from September 11, 1980 until his death on March 29, 2018. He was the judge who originally wrote Cardoza-Fonseca in the Ninth. He saved so many lives and I, personally, loved reading his cases. As a gift, I am citing to one of his decisions where he found that Cal. Penal Code § 314 (lewd or obscene conduct or indecent exposure) is categorically not a crime involving moral turpitude. It’s a long cite but it’s really funny and indicative of his insightful commentary and sense of humor.
Because there is no requirement that the viewers actually be offended by the exposure, and because the purpose of the conduct may be the "sexual arousal or gratification" of the viewer, rather than the exposer, California courts have, under § 314, upheld convictions for nude dancing at bars. For example, in People v. Conway, the defendant was a waitress and dancer in a beer bar. While she was clothed when serving beer, she was observed to undress and perform naked on a raised platform located along one wall of the barroom. She openly displayed her private parts to the nearby customers, paying most of her attention to those customers who placed money on the platform for defendant. Conway, 162 Cal.Rptr. at 878.8 See also People ex rel. Hicks v. Sarong Gals, 27 Cal.App.3d 46, 103 Cal.Rptr. 414, 415 (1972) (noting multiple arrests of dancers at a topless-bottomless bar for violating § 314).
Erotic, completely nude dancing is offensive to many people. It is not, however, so "base, vile, and depraved" that it shocks the conscience. As a plurality of the Supreme Court explained, "nude dancing ... is expressive conduct, although ... it falls only within the outer ambit of the First Amendment's protection." City of Erie, 529 U.S. at 289, 120 S.Ct. 1382. It would be odd indeed to hold that conduct that is entitled to some protection in order to keep our society free is also flatly "contrary to the societal duties we owe each other." Navarro–Lopez, 503 F.3d at 1069. Nude dancing, moreover, is a prototypical victimless crime. Whatever one's view of the merits of such conduct, it is simply not base, vile, and depraved. As with the conduct at issue in Rylaarsdam, see p. 1134 n. 7, supra, it may shock certain individuals but not those who patronize the establishment in order to see or take part in it. It does not cause them physical or psychological harm and it certainly does not shock their conscience.
Nunez v. Holder, 594 F.3d 1124, 1135–36 (9th Cir. 2010).
Rest in peace Judge Reinhardt and thank you.
In some good news this week, the Ninth Circuit decided to rehear Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) en banc and abrogated the panel’s decision. In Marinelarena the noncitizen had been convicted of conspiracy to sell or transport a controlled substance. The Court found that the statute was divisible as to the identity of a controlled substance and that the noncitizen had not met her burden under Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) to prove that she had not been convicted of a controlled substance offense. Because the record of conviction was ambiguous on this point, the noncitizen could not qualify for cancellation of removal for non-lawful permanent residents. The Court held that Young v. Holder remains good law because it was not clearly irreconcilable with Moncrieffe v. Holder, 569 U.S. 184 (2013).
The Ninth Circuit decided to rehear this case en banc. Since, I believe Marinelarena was wrongly decided, I am cautiously optimistic about the outcome. However, this issue will likely go to the Supreme Court as I believe that there is a split in the circuits; so, we will not have a dispositive answer for a while. For now, however, let’s rejoice.
District Courts in the Ninth
One wonderful decision came down in the Western District of Washington this week and several of our colleagues (Mark Van Der Hout’s firm and others) filed a class action law suit in the Northern District of California challenging prolonged detention. First to the summary judgment order.
Asylum Applicants Must Be Given Notice of the One-Year Bar and Must be Given an Opportunity to File for Asylum Within the One-Year Period
In a class action law suit, the District Court granted summary judgment in a case finding that in asylum cases DHS was required to provide notice of the one-year deadline within 90 days of an asylum applicant being released from custody pending deportation proceedings. And, here is the even more important part: EOIR and DHS must accept the asylum application before the one-year deadline expires. Sometimes, I cannot believe the idiocy of the law. Anyhow, the District Court judge agreed that if there is a one-year deadline, people should be able to apply for asylum within that deadline and EOIR and DHS should be required to accept the filing.
Mendez-Rojas v. Johnson, Case No. C16-1024 RSM (W.D. Wash. Mar. 29, 2018); AILA Doc. 16070100.
Class Action Law Suit Filed on Prolonged Detention
Remember about five years ago (in Trump time) or on February 27, 2018 when the Supreme Court issued its decision in Jennings v. Rodriguez finding that there was no automatic right to a bond hearing after 6 months in detention? Well, Mark Van Der Hout and several other immigration lawyers have followed the ruling in Jennings and filed a new class action law suit. In the suit, the plaintiffs argue that the Government’s refusal to conduct individualized bond hearings after six months violates the Immigration and Nationality Act, the Administrative Procedures Act, and the Constitution. If you have a client who falls into this class, please contact email@example.com.
Aleman Gonzalez v. Sessions, No. 3:18-CV-01869 (N.D. Cal. Mar. 27, 2018); AILA Doc. 18033001.
The Attorney General Strikes Again
In another baffling and yet not so baffling decision, the Attorney General denied DHS’s request to clarify the questions presented on the case that the Attorney General certified to himself for review. The initial question is whether and under what circumstances being a victim of criminal activity constitutes a cognizable particular social group for asylum? The concern is that Sessions is going to use this case to find that victims of domestic violence do not qualify for asylum. Despite DHS’s request that he clarify this question because there are a ton of legal decisions throughout the circuits on this issue, Sessions denied the clarification request. He also denied DHS’s request to suspend the briefing schedule until the BIA acts on the Immigration Court’s request for clarification.
I urge everyone to take a deep breath and remember that Silva-Trevino was ultimately reversed, when the Attorney General on his way out the door during the Bush administration issued that insane decision.
Matter of A-B-, 27 I.&N. Dec. 247 (A.G. 2018).
Happy Passover and Happy Easter! Take time to enjoy family and good food (or, at least, matzah ball soup).