I feel like I have whiplash from the decisions that came down this week. First, the Supreme Court issued its decision in Jennings v. Rodriguez holding that bond hearings are not required after six months in detention – but they remanded the case to the Ninth Circuit to determine whether the mandatory detention statutes are constitutional and whether a class action law suit was the proper vehicle to bring this case. A day earlier, the District Court for the Central District of California held that DACA status and EADs cannot be summarily stripped from recipients absent some form of notice and an opportunity to be heard. Being issued a Notice to Appear does not automatically terminate DACA. The Court issued a nationwide injunction! Finally, the Ninth Circuit issued a case saying that sodomy when the victim cannot consent is an aggravated felony for rape and it said that first degree attempt murder is a crime of violence.
The Supreme Court Said No Required Review for Bond After 6 Months In Immigration Detention – But Don’t Despair – The Statute Might Be Unconstitutional
As many of you have heard, this week the Supreme Court issued its long-awaited decision in Jennings v. Rodriguez. I have written a separate blog post for this decision but here are the important take-aways: 1) the underlying mandatory detention statutes themselves may be unconstitutional; and, 2) the courts may not have jurisdiction. The Supreme Court noted that a class action lawsuit might not be the proper vehicle for this case because the due process claims that are fact-specific to each plaintiff. The case was remanded to the Ninth to determine these two issues. If your client is stuck in mandatory detention, I recommend arguing that the mandatory detention statute is unconstitutional and I would fight it. I would like to remind everyone that it was the Obama DOJ that appealed the original Ninth Circuit decision to the Supreme Court – so we cannot entirely blame McConnell and Gorsuch for this fiasco.
Jennings v. Rodriguez, 538 U.S. __, No. 15-2014 (Feb. 27, 2018).
District Court for the Central District of California
DACA LIVES – thank you ACLU! The U.S. District Court for the Central District of California held granted the Plaintiffs’ motion for class certification and for a class wide preliminary injunction. The court held that DACA recipients cannot be stripped of their DACA status without notice and an opportunity to be heard prior to termination. The court held that the issuance of a Notice to Appear does not terminate DACA and does not invalidate the accompanying Employment Authorization Document. Here are the important holdings:
DHS is enjoined from terminating DACA and EAD absent a fair procedure that complies with the DACA Standard Operating Procedures as well as the 2012 Napolitano Memo on Prosecutorial Discretion for Individuals Who Came to the United States as Children. At a minimum, the DACA recipients are entitled to notice, a reasoned explanation, and an opportunity to be heard prior to termination. DHS is preliminarily enjoined from terminating DACA and EADs based solely on the issuance of a Notice to Appear. DHS decisions to terminate DACA and EADs after January 19, 2017 without notice, a reasoned explanation, or an opportunity to respond prior to respond are enjoined. DHS must immediately restore the individuals’ DACA and EAD, subject to their original date of expiration. DHS must accept and adjudicate any applications to renew DACA by individuals whose DACA and EAD would have expired on or before March 5, 2018.DHS will give the individuals whose DACA has expired or will expire on or before March 5, 2018, 60 days to renew their DACA and will restore their DACA grant and EAD for that 60-day period.
Inland Empire – Immigrant Collective Youth et al. v. Nielsen et al., No. EDCV 17-2048 PSG (Feb. 26, 2018).
Ninth Circuit Cases
Rape is an Aggravated Felony – But This Case Actually Brings Up More Questions Than It Answers
Your first reaction might be, of course rape is an aggravated felony so why should I even read this case? Well, it’s because the case itself is in a very weird posture. The noncitizen in this case has been a lawful permanent resident since 1992. In 2005 he was convicted under Cal. Penal Code 286(i) (sodomy where the victim cannot consent – yuck, yuck, yuck). In 2012 he was put in removal proceedings and charged with having been convicted of an aggravated felony crime of violence. He wasn’t charged with an aggravated felony rape, just with an aggravated felony crime of violence. The IJ terminated proceedings ruling that sodomy where the victim cannot consent was not a crime of violence. The decision is silent on whether the case was appealed to the BIA. In 2014, the noncitizen applied for naturalization. USCIS denied the naturalization application, finding that he had been convicted of an aggravated felony – namely rape. Because he had been convicted of an aggravated felony he could not establish good moral character under INA § 101(f). (If a person has been convicted of an aggravated felony they are statutorily precluded from establishing good moral character, unless the aggravated felony conviction was entered prior to November 29, 1990). The Ninth Circuit held that USCIS was correct and that sodomy where the victim cannot consent, is an aggravated felony rape.
There are two interesting issues in this case. 1) Can DHS now come back and recharge the noncitizen with being deportable for having been convicted of an aggravated felony rape? There is a Ninth Circuit case that says that they cannot, Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007); but, there is a recent BIA decision saying that you can, Matter of Jasso Arangure, 27 I.&N. Dec. 178 (BIA 2017). 2) Did the Ninth Circuit use the correct analysis to determine that sodomy is an aggravated felony rape crime? The Ninth Circuit did not use the categorical analysis in this case, so if your client is convicted of sodomy and is charged with aggravated felony rape, you might be able to argue that it doesn’t meet the minimum conduct test under Moncrieffe and argue that the Ninth Circuit did not engage in the correct analysis.
Elmakhzoumi v. Sessions, No. 16-16232 (9th Cir. Mar. 1, 2018).
First Degree Attempted Murder is a Crime of Violence
I don’t think that a week goes by where there is not another published Ninth Circuit case on what constitutes a crime of violence. This week, the Ninth held that attempted first degree murder is a crime of violence. This case does provide an excellent summary of what type of force is necessary for a crime of violence. Here we go: 1) the physical force used must be ‘violent force’ or ‘force capable of causing physical pain or injury to another person.’ United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015). 2) the force must be intentional, not just reckless or negligent. Id.; Leocal v. Ashcroft, 543, U.S. 1 (2004). Here the underlying statute required an intent to commit the base crime and a substantial step toward doing so. The substantial step met the mens rea requirement; and the force requirement includes the indirect application of force where the purpose is to cause death.
United States v. Studhorse, No. 16-30299 (9th Cir. Mar. 2, 2018).