Weekly Case Updates 1/19/2018
This week has been very quiet in terms of published cases one case came down from the BIA and one case came down from the Ninth Circuit that is a helpful primer for crim/imm cases. And, just so you know, this week the Ninth Circuit held that the California statute banning prostitution was not unconstitutional. I had to click on the case when I read the cite: Erotic Service Provider Legal Education and Research Project v. Gascon, No. 16-5927 (9th Cir. Jan. 17, 2018). How can you not look up that title? The plaintiffs were represented by the ACLU and made many non-frivolous Constitutional arguments, but alas, the Ninth Circuit held, is not unconstitutional to criminalize prostitution.
Here are the immigration cases.
Have A Legal Theory When You Go Before Immigration Court – Don’t Wait! And Be Careful to Brief All Arguments Made in the Notice of Appeal
Make sure that the legal theory in your case is solid when you go before the Immigration Court, and be sure to address all the arguments in your brief that you made in the Notice of Appeal otherwise the BIA can deem them waived. The BIA just clarified that it will not consider a newly articulated particular social group that was not advanced before the Immigration Court. In this case, the noncitizen argued before the IJ that she was a member of a social group comprised of "[s]ingle Honduran women age 14 to 30 who are victims of sexual abuse within the family and who cannot turn to the government." The IJ held that this group was not cognizable under the act. The noncitizen conceded that she did not articulate a valid particular social group before the Immigration Court. But, on appeal, she claimed that she was eligible for asylum based on her membership in a new particular social group namely "Honduran women and girls who cannot sever family ties." Additionally, in her Notice of Appeal she articulated another new particular social group, "[t]eenage daughters with nowhere to go for protection." In a footnote, the BIA refused to address this argument stating, "she did not advance this argument in her appellate brief so we decline to address it." Matter of W-Y-C- & H-0-B-, 27 I.&N. Dec. 189, 190 n.2 (BIA 2018). The BIA held, "[it] is an appellate body whose function is to review, not to create, a record…. It is therefore imperative that the parties fully develop the record before the Immigration Judge. We have long held that we generally will not consider an argument or claim that could have been, but was not, advanced before the Immigration Judge." Matter of W-Y-C & H-O-B-, 27 I.&N. Dec. at 190. Make sure your legal theory is strong at the Immigration Court level.
A Good Primer on the Categorical Approach And Important Information about Conspiracies
The Ninth Circuit held that a Washington State statute prohibiting conspiracy to distribute a controlled substance is an overbroad indivisible statute. Under federal law, a defendant cannot be convicted of a conspiracy if the only alleged co-conspirator is a federal agent or informant. Under Washington’s law, it is not a defense to criminal conspiracy that the co-conspirator is a law enforcement or other government agent. The Ninth agreed that the state statute was overbroad. (No one argued that it was divisible so the Ninth Circuit did not look at the modified categorical approach). The Court held "under the categorical approach "[n]othing turns on the particulars of the defendant’s own prior offense".*.*.*. "[E]ither all convictions under a particular statute qualify or none do." United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (citied U.S. v. Descamps, 133 S.Ct. at 2287 (2013)). It’s an easy way to think about it. The Ninth further held that because the statute was explicitly broader than the generic federal definition there was no need to do a Duenas-Alvarez analysis to find establish that there is a realistic probability that the state will apply its statute to conduct that falls outside the generic definition of a crime.
The concurrence is brutal. It starts with the following sentence: "All good things must come to an end. But apparently bad legal doctrine can last forever, despite countless judges and justices urging an end to the so-called Taylor categorical approach." United States v. Brown, No. 16-30218, slip op. at 13 (Owens, J., concurring) (9th Cir. Jan. 16, 2018). Judge Owens calls for the Supreme court or Congress "to junk this entire system." Id., at 14. His solution is to change the law to look simply at the sentence imposed to determine if the state offense meets the federal definition. By the way, the Taylor decision, which started the categorical approach, was issued in 1990 – it is older than some attorneys.