This week the Ninth Circuit held that a federal conviction under the Travel Act may be a federally controlled substance offense because the statute is divisible. In the same case the Ninth remanded to the Board of Immigration Appeals (BIA) to reconsider whether the noncitizen was eligible for cancellation of removal for lawful permanent residents. The Government failed to argue that he was statutorily precluded from relief because he had committed his offense during the seven years of required presence in the United States. The Ninth Circuit remanded the case to the BIA to determine whether he is eligible for non-LPR cancellation. If you are saying “what?????” that’s because this case does not make sense. The legal reasoning in determining whether the statute is divisible is unclear and the scope of the remand is unclear. Can the BIA simply determine that the non-citizen is statutorily precluded from cancellation because he fails to meet the physical residency requirement prior to commission of the crime? Or, has the Government completely waived the argument? It’s unclear. I have been assured that the attorneys are seeking rehearing in the Ninth.
That said, it is obvious from reading the case that the attorneys of record did a fantastic job. They pulled out all of the stops and hopefully, the Ninth Circuit will rehear the case. Kudos to Kelsey Gasseling and Andrew Snow of Boston College. More recent grads for everyone to hire! No cases came down this week from either the BIA or the Attorney General.
The Travel Act is Divisible and the Ninth Circuit Remanded the Case to the BIA to Determine Eligibility for Lawful Permanent Resident Cancellation of Removal
Usually I love blogging about Ninth Circuit cases because the logic and the writing are so clear. Often, I disagree with the result, but I respect the decision and I understand how the judges came to their result. This case is different. This time, I both disagree with the result and am puzzled by the logic. While I have to admit that I am amused that the Ninth Circuit remanded the case because DHS failed to argue that the noncitizen was ineligible for cancellation of removal because he had committed the crime before he established seven years of residency; it’s not a great case or a great result.
The first thing to do to try to understand this case is try to understand what in the world is the Travel Act? Here’s the relevant statute:
(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to--.*.*.*.
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform--.*.*.*.
(b) As used in this section (i) "unlawful activity" means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.*.*.*.
18 U.S.C. § 1952. The Travel Act prohibits travelling between the states or internationally or using the mail to engage in illegal activities involving, inter alia, gambling, arson, prostitution, bribery, or controlled substance offenses as defined by the federal Controlled Substances Act. The statute seems to be designed to address organized crime.
Zaldy Myers is a citizen of the Philippines. On September 20, 2006, he was admitted to the United States as a lawful permanent resident. In 2011, he pleaded guilty to one felony count of Interstate Travel in Aid of Racketeering in violation of 18 U.S.C. § 1952(a)(3). DHS placed him into removal proceedings and charged him with three alternative grounds of removability. The case does not say what two of the three grounds of removability were; but, DHS charged Mr. Myers with being removable for having been convicted of a controlled substance offense under INA § 237(a)(2)(B). Namely, conspiracy to possess with intent to distribute methamphetamine. The Immigration Judge (IJ) found that Mr. Myers was removable. Mr. Myers applied for cancellation of removal for lawful permanent residents. The IJ concluded that Mr. Myers was ineligible for cancellation of removal because DHS filed the Notice to Appear with the Immigration Court on January 3, 2013, fewer than seven years after Mr. Myers was admitted to the United States. Now why DHS did not argue that the commission of the offense cut off time under INA § 240A(d) is beyond me. But, for some reason, they did not seem to notice that argument until they got to the Ninth Circuit and the Ninth Circuit held that the Government could not use that argument because they had not raised it before the Immigration Jude or the BIA. The BIA had not considered the issue and had not based its ruling on it.
Back to the case, Mr. Myers appealed to the Board of Immigration Appeals. On May 3, 2017, the BIA affirmed the IJ’s decision. The BIA engaged in the categorical analysis and concluded that the statute was overbroad and divisible. They held that the Travel Act could be analyzed under the modified categorical approach because the specific act that constituted "unlawful activity" was an element of the Travel Act and that a jury was required to agree on a particular "unlawful activity" to find the defendant guilty.
The Ninth Circuit agreed that in order to determine whether the Travel Act conviction was a controlled substance offense, they had to start with the categorical approach. The Ninth Circuit found that the statute was overbroad and then determined that the statute was also divisible. Accordingly, they had to analyze the conviction using the modified categorical approach. To add a wrinkle to all of this, Mr. Myers was convicted in District Court in Texas for this offense. So, the Ninth Circuit had to engage in the modified categorical analysis using Fifth Circuit law. It’s a mess. The Ninth Circuit noted that the Fifth Circuit requires the identification of a specific "unlawful activity" to support a Travel Act conviction.
First the Ninth defined the term "unlawful activity." They said, "[i]t appears to us that the Fifth Circuit also requires the identification of a specific "unlawful activity" to support a Travel Act conviction." Myers v. Sessions, No. 17-71416 slip op. at *14 (9th Cir. Sept. 25, 2018). However, the Ninth noted that their task was made more difficult because the Fifth Circuit appears to have never actually considered and discussed the issue. Id.
In a truly bizarre turn, the Ninth Circuit relied on a D.C. Circuit case from 1975 that analyzed the federal statute according to Fifth Circuit law. The DC Circuit noted that the Fifth Circuit differed from the other circuits regarding whether a Travel Act conviction requires a finding that the defendant’s activity was unlawful under a specific state or federal statute. The DC Circuit found that "in contrast to most circuits (including ours), the Fifth Circuit does not require that the specific elements of the underlying law that constitute the unlawful activity be found as elements of the Travel Act offense. Rather, it is sufficient under Fifth Circuit law to specify a generic version of the predicate underlying activity.*.*.*. For example, as described by the Fifth Circuit in another of its opinions, it would be enough to identity the unlawful activity as " ‘[a]rson’ [because that] is a commonly used and understood word…. There is no requirement that the jury be instructed on the Maryland definition of arson." United States v. Conway, 507 F.2d 1047, 1051-52 (5th Cir. 1975)." Myers, slip op. at *16.
Now why the Ninth Circuit would cite to a 1975 decision on the elements of a crime out of the DC Circuit trying to interpret Fifth Circuit law, after the Supreme Court’s decisions Descamps, Moncrieffe, and Mathis, which clarify this issue is mindboggling! In the case that the Ninth cites, it notes that the term "arson" as it is commonly used and understood in the state of Texas is not necessarily the federal definition of arson. Then the Ninth Circuit states, "[t]hat does not say, however, that the Fifth Circuit does not treat the underlying unlawful activity as an element of a Travel Act violation, albeit in generic form rather than tied to a specific state or federal statute." Myers, slip op. at *17. What??? Anyhow, the Ninth concludes that neither party, nor the Ninth itself, identified a Fifth Circuit case that involved a Travel Act conviction in which the underlying unlawful activity is not specified. Well, I’m just speechless. That analysis makes no sense.
The Ninth Circuit then continues its analysis by looking at the record of conviction. They note that Mr. Myers was charged with travel to promote or facilitate a business enterprise involving narcotics or controlled substances. In the superseding information that the government filed against Mr. Myers they described the "unlawful activity" as the possession with intent to distribute methamphetamine. The Ninth Circuit concluded that whether the Fifth Circuit requires that the precise "unlawful activity" among the alternatives be listed in § 1952(b) of the Travel Act, does not appear to have been addressed by the Fifth Circuit. "Nonetheless, it appears to us from the Fifth Circuit cases that the specification of "unlawful activity" is treated as an element for a conviction under the Travel Act." Myers, slip op. at *19. Again, what???? The Ninth Circuit analyzed Mr. Myers’s case and found that his conviction qualifies as a controlled substance offense under the modified categorical approach.
Next, the Ninth Circuit analyzed whether Mr. Myers was statutorily eligible for cancellation of removal for lawful permanent residents. Remember the requirements for that form of relief are: 1) the noncitizen has continuously resided in the United States for seven years after having been admitted in any status; 2) that s/he have been a lawful permanent resident for five years; and 3) that s/he not have been convicted of an aggravated felony. INA § 240A(a). The BIA in this case noted that the seven-year period is deemed to end when the noncitizen is served with a notice to appear. The BIA concluded that Mr. Myers was ineligible for cancellation of removal because the NTA was served on him in January 2013, which is less than seven years after he was admitted to the United States in September 2006. (I don’t know why DHS did not argue that continuous residence ends when a noncitizen commits an offense under INA § 212(a)(2) that renders him inadmissible to or removable from the United States. They just had to keep reading the statute to the next sentence). Fortunately, for Mr. Myers, this mistake may have saved him; at least in the short term.
Mr. Myers contends that he was not served with the Notice to Appear until October 30, 2015 – more than seven years after his admission. The NTA contained a certificate of service signed by an immigration officer, but the date of service was left blank. The form shows Mr. Myers’s signature and an immigration officer’s signature related to a request for a prompt hearing, but those signatures are dated October 31, 2015. "The conclusion by the BIA that Myers is ineligible because he lacked the seven years of presence then required by the statute was not supported by substantial evidence." Myers, slip op. at *22. The Government then argued that the dates are irrelevant because Mr. "Myers’s "continuance physical presence in the United States" ended when he violated the Travel Act in 2011." Id. The Ninth Circuit found that the problem with this argument is that the BIA did not consider this argument. The Ninth Circuit noted that it only considers the grounds relied on by the agency in reviewing a case. The Ninth concluded that if the BIA’s decision cannot be sustained on its reasoning, the case must be remanded to allow the agency to decide any issues remaining in the case. They held that the case must be remanded to determine whether Mr. Myers is eligible for cancellation of removal. It is not clear to me if that means that the BIA can now hold that he is statutorily ineligible for cancellation because the commission of the crime cut off time. I usually only say "what a mess" for the BIA decisions and the Attorney General’s decision, but this case is a mess.
Myers v. Sessions, No. 17-71416 (9th Cir. Sept. 25, 2018).