Top of the Ninth: Jun 08, 2018

Top of the Ninth: Jun 08, 2018

Latest news

One of the most odious decisions I have ever seen came down from the Board of Immigration Appeals this week. The Board of Immigration Appeals (BIA) denied asylum to a woman who had been enslaved by a terrorist organization in El Salvador and was forced to cook, clean and wash their clothes for them. The BIA reasoned that she provided material support to a terrorist organization by cooking and cleaning for them and thus was precluded from obtaining asylum. I hate to use the Nazi analogy, but I am going to. I grew up in the Northern suburbs of Chicago and many of the people I knew were Holocaust survivors and the children of Holocaust survivors. The survivors told me stories of being forced to work in factories for the Nazis. Their stories are very reminiscent of the facts here. So, would the BIA deny an asylum claim for a Jew in Nazi Europe because she was forced to help the Nazis produce munitions and thereby helped their war effort? How about a slave in the South during the Civil War forced to work for the Confederates? Would the BIA have found that she committed treason against the United States? In both instances, I think the answer is yes. I have read that the attorney of record for this case is going to appeal to the Second Circuit, so, hopefully, the Second Circuit will reverse this odious decision.

In other news, the Ninth Circuit certified issues to the Nevada Supreme Court related to the categorical approach: means, elements, facts, divisibility…. You get the picture. It also analyzed whether Nevada convictions for assault with a deadly weapon, robbery, and coercion, were categorically crimes of violence. Two District Courts in California came down with some important immigration decisions. The Northern District of California granted a preliminary injunction ordering the government to provide bond hearings for people who have been ordered removed and remain in immigration detention for over 180 days. And, perhaps, most importantly, the Southern District of California denied a summary judgment motion from the government regarding the practice of separating children from their parents at the border when the family is applying for asylum. The courts might save our country.

Board of Immigration Appeals

A Kidnapped Slave Who Cooks, and Cleans for a Terrorist Organization Has Provided Material Support to that Organization and is Precluded from Applying for Asylum

In 1990, guerrillas kidnapped A-C-M-, forced her to undergo weapons training and forced her to cook for them, clean for them, and wash their clothes under threat of death. She was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being murdered. A-C-M- escaped and in 1991 she entered the United States and ultimately obtained Temporary Protected Status. In 2004, she left the U.S. on advanced parole and was placed into removal proceedings when she returned. For some reason, DHS charged her as being inadmissible as an alien without a valid entry documents. A-C-M- applied for cancellation of removal for non-lawful permanent residents. The Immigration Judge (IJ) granted the case and ICE appealed. ICE argued that she was ineligible for cancellation under INA § 240A(c)(4) (security and related grounds). The Board of Immigration Appeals (BIA) agreed and remanded the case to see if she was eligible for other forms of relief. A-C-M- applied for asylum, withholding, and protection under the Convention Against Torture (CAT). The IJ found that but for the material support bar she would have granted A-C-M- asylum on humanitarian grounds. But the IJ did grant A-C-M- ‘s application for CAT relief. A-C-M- and ICE both appealed.

The BIA found that there is no duress exception to the material support bar and that there is no de minimis exception to the material support bar. The BIA held that a person “provides “material support” to a terrorist organization, regardless of whether it was intended to aid the organization, if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.” Matter of A-C-M-, 27 I.&N. Dec. 303, 308 (BIA 2018). The BIA held that under the facts, A-C-M- provided material support when she aided the guerrillas in continuing their mission of armed and violent opposition to the Salvadoran Government in 1990. “While the respondent’s assistance may have been relatively minimal, if she had not provided the cooking and cleaning services she was forced to perform, another person would have needed to do so.” Matter of A-C-M-, 27 I.&N. Dec. at 310 (emphasis added). The BIA then remanded the case so that the IJ could determine if A-C-M- qualifies for CAT relief.

Judge Wendtland filed a concurrence and dissent. She concurred that the case should be remanded to see if A-C-M- qualifies for CAT relief, but she dissented on the material support issue. To her credit, she did not use any profanity. The dissent argued that the BIA misinterpreted the term “material support”. She argued, “[h]ad Congress intended the word “material” to add little or nothing to the threshold requirements, it presumably would have simply prohibited “support.” Matter of A-C-M-, 27 I.&N. Dec. at 313, (Wendtland J., dissenting). She noted that Congress in the INA defines “material support” as including providing “a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives or training.” Id. It does not include a slave cooking or cleaning, or washing clothes.

This case is so odious, that I feel the need for a shower. Matter of A-C-M-, 27 I.&N. Dec. 303 (BIA 2018). Let’s go on to the great cases that came out of the District Courts in California.

Northern District of California

The Northern District of California Issued a Preliminary Injunction Within the Ninth Circuit Mandating Bond Hearing for Detained Individuals with Final Removal Orders Who Have Been in Detention for Over 180 Days

In a huge case this week, the Northern District of California issued a preliminary injunction within the Ninth Circuit ordering bond hearings for people with a final removal order who have been in detention for over 180 days. The Court held that the Supreme Court’s reasoning in Jennings v. Rodriguez, __ U.S. __, 138 S.Ct. 830 (2018) does not apply to people in mandatory detention who have a final order of removal. In Jennings, the Supreme Court held that there was no right to a bond hearing after 180 days for individuals in mandatory detention during removal proceedings under INA §§235(b)(1) 235(b)(2) (arriving aliens and noncitizens who are applicants for admission) because there is a natural end date for those proceedings. There is no natural end date for people in mandatory detention who have a final removal order). The members of this group include: 1) people in “withholding only” proceedings before the IJ or the BIA; 2) people who have motions to reopen pending in the courts; 3) people with pending appeals from the removal order; and, 4) people who have been ordered removed but cannot be removed because the home country will not accept them. After the 180-day mark in detention, the government must justify continued detention. In other words, the government must prove by clear and convincing evidence that the individual is a flight risk or a danger to the community in order to justify continued detention.

Congratulations to Van Der Hout, Brigaliano & Nightingale, La Raza Central Legal, Matthew Green, and the ACLU – the awesome attorneys on this case.

Aleman Gonzalez v. Sessions, No. 18-CV-01869-JSC (N. D. Cal. June 5, 2018).

A Lawsuit Challenging the Trump Administration’s Policy of Separating Children from Their Parents at the Border Withstood a Summary Judgment Motion and the Lawsuit May Proceed

For right now, the courts appear to be saving our country. A court in the Southern District of California denied a summary judgment motion from DHS requesting that the court dismiss a lawsuit challenging the practice of separating children from their parents at the border. The Court held that the Plaintiffs set forth sufficient facts and a sufficient legal basis to state a claim that separation from their children while they are contesting their removal proceedings without a determination that the parents are unfit or present a danger to their children violates constitutional due process. Remember, this is only a response to a summary judgment motion, so don’t pop the champagne yet. (Well, maybe the attorneys on the case can pop the champagne).

One Plaintiff (Ms. L) is from the Democratic Republic of Congo and she and her six-year-old daughter arrived at the San Ysidro Port of Entry seeking asylum based on religious persecution. The mother and daughter were housed together in detention at the border until November 2017, when the daughter was taken away and sent to Chicago (over a thousand miles away) where the daughter was placed in a detention facility for unaccompanied minors run by the Office of Refugee Resettlement. Mrs. L was finally paroled in to the United States and filed lawsuits to get her daughter back. After several months of separation and DNA testing to prove that the mother is the mother, the family is now reunited. The other Plaintiff (Ms. C) is from Brazil and entered illegally with her fourteen-year-old son between ports of entry. They were apprehended by CBP. Ms. C was prosecuted for illegal entry and served twenty-five days in federal custody. Her son was taken to the ORR facility in Chicago. Ms. C. was also found to have a credible fear of persecution. It is unclear if the family is reunited.

Ms. L and Ms. C are seeking to represent a nationwide class:

All adult parents nationwide who (1) are or will be detained in immigration custody by the Department of Homeland Security, and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, absent a demonstration in a hearing that the parent is unfit or presents a danger to the child.

Ms. L.; et al., v. U.S. Immigration and Customs Enforcement et al., No. 3:18-cv-00428 slip op at 5 (S.D. Cal. June 6, 2018). The plaintiffs’ motions for class certification and a preliminary injunction will be addressed in separate orders. For now, the court merely held that the case could not be dismissed. We still have a long way to go – but it’s a good first step.

Importantly, the court found that there was a constitutional right to family integrity and that the alleged governmental conduct “shock[ed] the conscience” and “violate[d] the right to family integrity.” Ms. L., slip op. at 20. “Where substantive due process applies to the particular circumstances alleged, as there, the “threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock contemporary conscience.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998).” Ms. L, slip op. at 20. The court found that it did. I know that it is hard to read block quotes, but this quotation is worth reading carefully. Here’s the awesome language.

These allegations call sharply into question the separations of Plaintiffs from their minor children. This is especially so because Plaintiffs allegedly came to the United States seeking shelter from persecution in their home countries, and are seeking asylum here. For Plaintiffs, the government actors responsible for the “care and custody” of migrant children have, in fact, become their persecutors. [Wow!] This is even more problematic given Plaintiffs’ allegations and assertions that there is a government practice, and possibly a forthcoming policy, to separate parents from their minor children in an effort to deter others from coming to the United States. This alleged practice is being implemented even when parents like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned to present asylum claims meriting consideration by an IJ in their removal proceedings. These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” .*.*.* Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. [Again – Wow!] At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates the Plaintiffs’ constitutional right to family integrity.

Ms. L. slip op. at 22-23 (emphasis and exclamations added and cites omitted).

Ms. L. et al. v. U.S. Immigration and Customs Enforcement, No. 18cv0428DMS (MDD) (S.D. Cal. June 6, 2018). Thank you to the ACLU!!!!

Ninth Circuit

When is a “Fact” an “Element”?

Now back to the less sexy cases that came down in the Ninth Circuit. Just in case things couldn’t get more confusing between the categorical and modified categorical approach and “means” versus “elements,” now the Ninth Circuit has added the question of when is something a “fact” rather than an “element”? They are certifying this issue to the Nevada Supreme Court because these questions are limited to Nevada law.

Mr. Figueroa-Beltran was charged with illegal reentry to the United States after being removed from the United States for having been convicted of several controlled substance offenses in Nevada. The question before the court was whether Mr. Figueroa-Beltran was subject to a sentencing enhancement on the illegal reentry for having been convicted of a drug trafficking offense. Mr. Figueroa-Beltran argued that he had not been convicted of a drug trafficking offense so the enhancements should not apply.

The Ninth Circuit in Figueroa-Beltran gives an excellent explanation of what is an “element” of a crime versus what is a “means” of committing a crime under the categorical and modified categorical approach. Now for a primer, under the categorical approach the adjudicator must determine whether the elements of the state crime match the elements of the federal crime for a crime to be either a removable offense or an offense subject to a sentence enhancement in criminal law. All of the states have different definitions of what constitutes a particular crime; and then there is the federal definition for the crime. The state definition must match the federal definition in order for a person to be removable from the United States or subject to a federal sentencing enhancement for the underlying conviction to be a federal offense.

For years, attorneys have been trying to figure out what is a “means” versus what is an “element.” The “elements” of a statute “are the constituent parts of a crime’s legal definition – the things the prosecution must prove to sustain the conviction. Mathis v. United States, __ U.S. __, 136 S.Ct. 2243, 2248 (2016). The “means” used to fulfill an element of the conviction is extraneous to the crime’s legal requirements. It doesn’t have to be found by the jury or admitted by the defendant. The “means” are how a defendant committed the crime. Now to add to the confusion, the Ninth Circuit added the issue of facts. Is the identity of a controlled substance a “fact” rather than an element of the offense?

Here is an example of how to analyze the elements of an offense. A burglary conviction with a sentence to imprisonment of one year is an aggravated felony under INA § 101(a)(43)(F). The federal definition of burglary requires breaking and entering a structure with the intent to commit a crime. However, the California definition of burglary requires entering a structure with the intent to commit a theft or any felony. The California definition of burglary does not match the elements of the federal definition of burglary – it is missing one of the elements. Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011). (Noncitizen entered a big box store and walked out with a twenty-four pack of beer without paying for it and was nearly deported as an aggravated felon for having committed burglary). The Ninth Circuit held that a conviction for burglary under the California statute can never be an aggravated felony because it is missing the element of breaking and entering.

But, a statute is not divisible when there are different “means” (ways) for committing an offense. For example, if a person is convicted of assault with a deadly weapon, the actual weapon the person used is the “means” by which they committed the crime. It doesn’t matter what weapon s/he used, it is still assault with a deadly weapon regardless of whether it is the candlestick or the lead pipe. (Thank you, Justice Kagan. See, Descamps v. United States, 570 U.S. __, 133 S.Ct. 2276 (2013)).

The Ninth Circuit certified the following questions to the Supreme Court of Nevada:

  1. Is the Nevada controlled substance statute divisible as to the controlled substance requirement? Are there different elements to the crime?
  2. Does the decision in Luqman (a Nevada court decision) conclude that the existence of a controlled substance is a “fact” rather than an “element”?
  3. Does the decision in Muller (the other Nevada court decision) conclude that different offenses are distinct offenses requiring separate and different proof rendering the statute divisible as to the controlled substance offense?

The Ninth Circuit held that they would abide by the decision of the Nevada Supreme Court. If this case does not make any sense to you, it’s because it is very confusing.

United States v. Figueroa-Beltran, No. 16-10388 (9th Cir. June 6, 2018).

A Nevada Conviction for Assault with a Deadly Weapon is Categorically a Crime of Violence While a Nevada Conviction for Robbery and Coercion are Categorically Not Crimes of Violence

In the weird world of crimmigration, often the most important cases for our clients are those involve federal sentencing enhancement for felons in possession of a firearm. Especially where the court is trying to determine what constitutes a crime of violence. I suspect that a lot of the defendants in these criminal cases are white nationalists. There is a weird connection between felons and firearms and immigrants and removal. It adds a delicious irony when we can use these holdings to help immigrants. This week, the Ninth Circuit analyzed whether Nevada convictions for assault with a deadly weapon, robbery, and coercion were crimes of violence for sentencing enhancement purposes under the U.S. Sentencing Guidelines for being a felon in possession of a firearm. The Ninth Circuit held that a Nevada conviction for assault with a deadly weapon constituted a crime of violence because it has the element of the use or threatened use of violent physical force against a person. However, the Nevada robbery statute did not contain the threatened use of violent physical force because the minimum conduct requires taking someone’s personal property by instilling fear of damage to the property. You know, “give me your jewelry or I’ll smash it” is not a crime of violence. This case can be important if a noncitizen is being charged with an aggravated felony crime of violence for having been convicted of robbery or assault with a deadly weapon.

United States v. Edling, No. 16-10457 (9th Cir. June 8, 2018).

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