This week the Board of Immigration Appeals (BIA) redefined the term "obstruction of justice" and reaffirmed that a conviction for California Penal Code § 32 (accessory after the fact) was categorically an aggravated felony obstruction of justice conviction where the noncitizen was sentenced to one year or more imprisonment. The Ninth Circuit reissued and clarified a decision holding that a Nevada controlled substance statute and a Nevada conspiracy statute, as it relates to a controlled substance offense, were both overbroad and non-divisible. The Ninth Circuit also thoroughly explained the process for a reasonable fear interview and clarified what a noncitizen must establish to qualify for asylum. And, the Ninth Circuit held that where a lawful permanent resident was wrongly ordered deported in absentia he could not be convicted of unlawful reentry. This week Jeff Sessions told a group of recently hired immigration judges that immigration attorneys "work every day – like water seeping through an earthen dam – to get around the plain words" of the Immigration and Nationality Act. I like to think that this blog helps with the seeping; or, as I like to think of it, it helps attorneys be aware of the law so that they can zealously represent their clients.
Board of Immigration Appeals
The BIA Clarifies the Definition of Obstruction of Justice and Holds that Cal. Penal Code § 32 (Accessory after the Fact) is Categorically an Aggravated Felony Crime for Obstruction of Justice Where the Term of Imprisonment is One Year or More
In a decision that I at first found to be nearly incomprehensible, the BIA gave us a new definition of obstruction of justice and again held that Cal. Penal Code § 32 (accessory after the fact) is obstruction of justice. I have been reading The Chronicles of Barsetshire by Anthony Trollope and in one of the books, Trollope discusses the "law-enlightened and law-bewildered brains" of attorneys. Anthony Trollope, The Warden, Ch. 8. That description truly embodied what I thought after reading this decision. It’s both law-enlightened and law-bewildered. I’ll try to flesh out the law-enlightened parts of the decision and eliminate the parts that are law-bewildering.
Here’s the important part. The BIA clarified its definition of obstruction of justice holding that obstruction of justice involves: "(1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with either an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding." Matter of Valenzuela Gallardo, 27 I.&N. Dec. 449, 460 (BIA 2018). The Board held that to the extent that its previous decisions on this issue contain language suggesting otherwise that language is dicta. Valenzuela Gallardo 27 I.&N. Dec. at 460 n.1.
Agustin Valenzuela Gallardo is a native and citizen of Mexico. In May 2002, he was admitted to the United States as a lawful permanent resident. In December 2007, he was convicted of Cal. Penal Code § 32 (accessory after the fact) and was sentenced to 16 months imprisonment. ICE placed him into removal proceedings and the Immigration Judge ordered him removed. The BIA upheld the IJ’s decision. Then the Ninth Circuit issued a decision holding that a crime is an offense relating to obstruction of justice when it interferes with an ongoing proceeding or investigation. Trung Thanh Hoang v. Holder, 641 F.3d 1157 (BIA 2011). The BIA reopened Mr. Valenzuela Gallardo’s case sua sponte and issued a published decision holding that obstruction of justice "must have as an element "the affirmative and intentional attempt, with specific intent to interfere with the process of justice…. [T]he existence of [an ongoing criminal investigation or trial] is not an essential element of ‘an offense relating to obstruction of justice. Matter of Valenzuela Gallardo, 25 I.&N. Dec. 838, 841 (BIA 2012). The case went up to the Ninth Circuit and the Ninth Circuit found that the definition was arguably unconstitutionally vague. The Ninth Circuit said,
[T]hough the BIA has said that not every crime that tends to obstruct justice qualifies as an obstruction of justice crime, and the critical factor is the interference with the process of justice – which does not require an ongoing investigation or proceeding – the BIA has not given an indication of what it does include in "the process of justice" or where that process begins and ends.
Valenzuela Gallardo, 818 F.3d 808, 818 (9th Cir. 2016). The Ninth Circuit concluded that the "BIA is free to define obstruction of justice as it sees fit on remand, as long as the definition is not unworkably vague." Id. at 822.
The BIA conducted a survey of state and federal laws in 1996 defining the term obstruction of justice to determine what Congress meant when they enacted the law. The BIA relied heavily on a recent Supreme Court case that held that in a federal obstruction of justice case the Government must show that the proceeding was, at least, "reasonably foreseeable by the defendant" at the time of the obstructive conduct. Matter of Valenzuela Gallardo, 27 I.&N. Dec. at 455 quoting Marinello v. United States, __ U.S. __, 138 S. Ct. 1101, 1110 (2018) (emphasis in the original). The BIA clarified its definition and held that Cal. Penal Code § 32 (accessory after the fact) was an obstruction of justice offense.
So that now that we have the definition, I did some checking into what the California statute requires for conviction. The California courts have defined accessory after the fact as follows:
The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.
People v. Tran, 215 Cal. App. 4th 1207, 1219, 155 Cal. Rptr. 3d 803, 812 (2013). Those elements do seem to meet the federal definition of obstruction of justice. But, I’ll leave it up to the Ninth and to the attorneys who thoroughly research this issue to decide.
Matter of Valenzuela Gallardo, 27 I.&N. Dec. 449 (BIA 2018).
The Nevada Conspiracy Statute and Controlled Substance Statute are Overbroad and Indivisible
When I read a case like this one, I cannot over-state how grateful I am for the brilliant immigration law professors, attorneys, non-profits, and pro bono attorneys that practice in this field. The list of attorneys in this case is a veritable Who’s Who in immigration law. The Ninth Circuit issued an amended opinion finding that a Nevada conviction for conspiracy to commit a crime and a Nevada conviction for a controlled substance offense was categorically not a categorical match to the federal offenses and that the underlying statutes were both overbroad and indivisible.
Julio Cesar Villavicencio entered the United States illegally in 1979 and adjust his status some time in the 1980’s. In or about 2010 Mr. Villavicencio was convicted of conspiracy to possess drugs. The Nevada law defines a conspiracy as an agreement between two or more persons for an unlawful purpose. No proof of an overt act in furtherance of the conspiracy is required. Nevada Revised Statutes § 199.480. The Ninth Circuit previously held that "[b]ecause Nevada’s conspiracy statute lacks the requisite "overt act" element, it "criminalizes a broader range of conduct than the properly determined generic definition of conspiracy," and the categorical approach may not be used to determined removability." United States v. Garcia-Santana, 774 F.3d 528, 534 (9th Cir. 2014). Moreover, the statute is not divisible. Id., 774. F.3d at 534 n. 3.
Having disposed of the conspiracy conviction, the Ninth then looked at the conviction for possession of a controlled substance. The Nevada statute covers any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act. The Ninth Circuit noted that the California drug law that regulates the possession and sale of numerous controlled substances that are not similarly regulated under the Controlled Substances Act was categorically overbroad. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007). The Ninth noted that the Third Circuit had recognized that "the FDCA prohibits countless activities that are completely unconnected to controlled substances." Rojas v. Att’y Gen. of U.S., 728 F.3d 203, 218 (3rd Cir. 2013). Because the Nevada statute likewise prohibits any drug listed under the FDCA, it is categorically overbroad relative to 21 U.SC. § 802.
Once the Ninth determined that the statute was overbroad, it then looked at whether the statute was divisible. I have to admit that I was a little disappointed that the Ninth Circuit did not do a Lorenzo analysis to determine whether the Nevada definition of methamphetamine was overbroad like the California definition. I was hoping it had too many isomers. I kept looking for that analysis, especially since the pro bono attorneys on the case were from Orrick, Herrington & Sutcliffe, but, alas, there was no such analysis. Nonetheless, the case does highlight one way to differentiate between elements and means. If the statutory alternatives carry different punishments, then they must be elements. Villavicencio v. Sessions, No. 13-74324 slip op. at *16 (9th Cir. Sept. 11, 2018). The Ninth found that the Nevada controlled substance statute was not divisible. Accordingly, Mr. Villavicencio is categorically not removable.
Villavicencio v. Sessions, No. 13-74324 (9th Cir. Sept. 11, 2018).
Where a Withholding Applicant Fails to Demonstrate a Reasonable Fear of Persecution Due to the Lack of Nexus Between any Harm and a Protected Ground for Withholding the Noncitizen Does not Qualify for Relief – But, it’s an Abuse of Discretion for an IJ not to Consider Reopening a Case Sua Sponte
If you want a refresher on reasonable fear proceedings, this is the case to read. I, personally, learned a lot. In a very readable and very well-written decision the Ninth Circuit clarified the proper procedures and determinations for a reasonable fear interview citing the statute, the regulations, case law and policy memos. It’s really a treat to read this case. While I was not pleased with the outcome, I had to agree with logic. But, there is one goody in here: it is an abuse of discretion for an Immigration Judge to fail to recognize that he has sua sponte jurisdiction to reopen proceedings. The Ninth Circuit remanded the case to the Immigration Judge to determine whether an exercise of sua sponte jurisdiction is warranted.
Tomas Bartolome is a native and citizen of Guatemala. The fact pattern here is long, but it is important to understanding the case, so please bear with me. In 1994 he entered the United States illegally and applied for asylum. The U.S. government denied his asylum application and in February 2008 he was deported. In June 2008 he tried to reenter the U.S. illegally. DHS found him to be inadmissible and ordered expedited removal. In 2015 Mr. Bartolome illegally reentered the United States. DHS served him with a Notice of Intent/Decision to Reinstate the Prior Order. Mr. Bartolome expressed a fear of persecution or torture and was referred to an asylum officer for a reasonable fear interview. On May 6, 2015, Mr. Bartolome and his attorney appeared before an asylum officer. Mr. Bartolome claimed that he feared returning to Guatemala because the gangs were extorting him. He said that the gang members thought he had money because his family resided in the United States. The footnote explains that Mr. Bartolome’s wife is a lawful permanent resident and that two of his five children are U.S. citizens. He also said that he feared persecution because his brother was involved in Guatemalan politics. The asylum officer found Mr. Bartolome credible but issued a negative reasonable fear determination. The case was referred to an Immigration Judge to review the reasonable fear determination. This time, Mr. Bartolome appeared with his attorney before an immigration judge and testified that he feared harm in Guatemala by local residents who blamed him for damages caused by a civil engineering water project he was elected to oversee. He reiterated his claim that he feared persecution by the gangs. The IJ concluded that the asylum officer correctly decided that Mr. Bartolome was ineligible for withholding of removal because there was no nexus between the feared harm and one of the protected grounds. In other words, it’s not enough to fear persecution because people are angry at you for overseeing a water project. In August 2015, Mr. Bartolome filed a motion to reopen with the Immigration Judge. The IJ rejected the motion to reopen finding that the court had no jurisdiction to consider the motion to reopen sua sponte. The IJ held that only DHS had jurisdiction to consider this motion.
Now on to the legal arguments. First, Mr. Bartolome argued that he was deprived his due process rights and a fair hearing before the asylum officer because he was provided with a Spanish-language interpreter rather than with an interpreter in his native language – Chuj. Mr. Bartolome argues that he was unable to present his entire story; but he failed to specify what evidence he was unable to present. Moreover, even if the asylum officer erred in not providing an interpreter, that error was remedied before the IJ in the reasonable fear review hearing. The Ninth noted that the IJ reviewed all of the previously produced evidence along with the asylum officer’s notes; heard additional testimony from Bartolome in his native tongue; and accepted additional documents supporting his claim. The IJ then issued his decision after having reviewed all of the evidence.
Second, the Ninth Circuit discussed the scope of reasonable fear review hearings. The Ninth Circuit noted that reasonable fear review hearings were not envisioned to be full evidentiary hearings which occur in removal proceedings. They are abbreviated proceedings to ensure that a noncitizen does not have a reasonable fear of returning to his home country. Here’s the good language: "Extensive proof is not needed; rather an IJ need only determine whether there is at least a ten percent chance that the alien "would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal." Bartolome v. Sessions, No. 15-71666 slip op. at *16 (9th Cir. Sept. 14, 2018). In accordance with the guidelines, the IJ reviewed the asylum officer’s file and allowed Mr. Bartolome to testify in his native language and present additional evidence prior to making his decision.
The IJ issued his decision and noted that he considered all of the evidence and concluded that he would not change the asylum officer’s decision. But, Mr. Bartolome argued that the IJ failed to address all of the evidence and claims in the IJ’s decision. The IJ concluded that Mr. Bartolome’s activities and the incidents with gang members had no connection or nexus to a protected ground and there was no evidence of a torture risk with government acquiescence. The Ninth Circuit then reviewed the testimony and evidence submitted. They noted that the gangs targeted Mr. Bartolome because they perceived him to have money which is not a cognizable social group. Second, threats based on Mr. Bartolome’s involvement in the installation of water pipes and a sewer system were not persecution on a protected ground. Finally, Mr. Bartolome failed to establish any threat of future persecution based on his brother’s membership in a political party. Similarly, he failed to provide any evidence that he would be or was in danger of being tortured with the acquiescence of the government.
I have to say that as I read the Ninth Circuit’s decision, I agreed with everything that they said. I would love to read the briefing in this case to see what I am missing.
Bartolome v. Sessions, No. 15-71666 (9th Cir. Sept. 14, 2018).
Where the Two Previous Removals Were Fundamentally Unfair Neither Can Serve as a Predicate Removal for § 1326 Purposes
A noncitizen cannot be convicted of illegal reentry under 8 U.S.C. § 1326 where the underlying removal orders were fundamentally unfair. Where the noncitizen had previously been ordered removed based on an in absentia proceeding in 2008 and removed again in 2011 in an expedited removal proceeding, based on the 2008 proceeding but removal orders were fundamentally unfair, neither can serve as a predicate removal for 8 U.S.C. § 1326 (conviction for unlawful reentry).
Francisco Ochoa-Orogel was a lawful permanent resident. In 2008, an immigration judge ordered him removed in in absentia proceedings based on a prior conviction for California Penal Code § 243(e)(1) (domestic violence battery). At the time of his immigration court hearing in 2008, the Ninth Circuit had already held that a conviction for Cal. Penal Code § 243(e)(1) was categorically not a crime of violence; and was not a removable offense. Mr. Ochoa-Oregal should never have been placed in removal proceedings in the first place! (I regularly advise criminal defense attorneys to enter a plea to Cal. Penal Code § 243(e)). The Ninth noted that the Immigration Judge back in 2008 erred in ordered Mr. Ochoa-Oregal removed for a crime of domestic violence based on the Section 243(e) conviction. "The 2008 in absentia removal cannot properly serve as a predicate for a conviction for illegal reentry." United States v. Ochoa-Orogel, No. 16-50413 slip op. at *6 (9th Cir. Sept. 14, 2018).
The Ninth then looked at the 2011 removal order and held that it could not serve as a predicate for unlawful reentry. "In the context of reinstatements of prior erroneous removal orders, we have held that "limiting review to the procedural requirements for reinstatement without regard to the soundness of the underlying removal proceeding implicates due process concerns by effectively foreclosing all opportunity for ‘meaningful’ review of the underlying removal,"United States v. Arias-Ordonez, 597 F.3d 972, 980 (9th Cir. 2010)." Ochoa-Orogel, slip op. at *6. The Ninth then noted that the 2011 removal was an expedited proceeding, not a reinstatement but that the same due process concerns apply. The due process defects in the erroneous 2008 removal proceeding infect the 2011 removal proceeding. Here’s the language:
A person should not be stripped of the important legal entitlements that come with lawful permanent resident status through a legally erroneous decision that he or she had no meaningful opportunity to contest.
Ochoa-Orogel, slip op. at *7.
Finally, the Ninth Circuit notes,
We reject the government’s claim that any order of removal, no matter the substantive and procedural defects, would strip lawful permanent residents of the important legal protections that status affords them. The important legal protections of lawful permanent resident status do not hang on the whims of government officials, they stand on the much more secure footing of lawful due process. At a minimum, persons do not lose lawful permanent resident status through legally erroneous decision in hearing where they are not able to defend themselves because they were not present.
Ochoa-Orogel, slip op. at *9 (emphasis added). The Ninth reversed the unlawful re-entry conviction. That is some fine "water seeping through an earthen dam." Let’s hope that Mr. Ochoa-Orogel finds an immigration attorney to file a motion to reopen his in-absentia deportation hearing and get the removal order vacated.
United States v. Ochoa-Orogel, No. 16-50413 (9th Cir. Sept. 14, 2018).