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Top of the Ninth: Aug 10, 2018 - Part one

Top of the Ninth: Aug 10, 2018 - Part one

Summertime and the living is easy – except at the BIA and the Ninth this past week, where a lot of cases came down. This week we saw a lot of audacious advocacy and fights between the Board of Immigration Appeals and the Ninth Circuit. I think we will see a lot of these issues go before the Supreme Court. I don’t quite know what to focus on first! Should it be the Ninth Circuit upholding a Federal Tort Claims Act case against the Government for removing a noncitizen from the United States? The Ninth Circuit holding that the sham marriage exception does not extend to the marital communications privilege (not exactly an immigration case, but can be helpful for marriage fraud cases)? The BIA’s outrageous expansion of the definition of a crime involving moral turpitude to expand to basically anything the BIA doesn’t like? The BIA expanding the definition of which crimes make a non-lawful permanent resident eligible for cancellation of removal? Or, the BIA finding that a noncitizen who has violated a protection order does not need to have been convicted of this offense in order to be removable under INA § 237(a)(2)(E)? It’s like Christmas (or Chanukah) in August for law nerds!!!!

This week’s blog is so long that I am dividing it into two parts. The first part will focus on the Ninth Circuit decisions and the second part will focus on the BIA decisions.

Part One – Ninth Circuit

The Ninth Circuit Reiterates Its Definition of a Crime Involving Moral Turpitude and Further Instructs Us on What Exactly is a Divisible Offense

Remember how I said that this week we saw a lot of audacious advocacy? Well, this is one of those cases. Perhaps it’s not as audacious as some of the other cases, but it is truly excellent advocacy by the attorneys. The Ninth Circuit revisited the definition of a crime involving moral turpitude (CIMT) and concluded that a conviction for Oregon Revised Statues § 162.285 (witness tampering) is categorically not a CIMT. The Ninth found that the statute is divisible and once again explained divisibility. This case is especially interesting because four days earlier (August 6, 2018) the BIA came down with a new definition of a CIMT that the Ninth Circuit (obviously) did not consider in this case. There is a fight between the Ninth Circuit and the BIA as to what exactly constitutes a CIMT.

Orlando Vasquez-Valle is a native and citizen of Mexico. He was convicted of witness tampering in violation of Oregon Revised Statues § 162.285 and was placed in removal proceedings. Mr. Vasquez-Valle has been living in the United States for twenty years, he is married to a U.S. citizen and has two U.S. citizen children. Mr. Vasquez-Valle was charged with being inadmissible under INA § 212(a)(6)(A)(i) for being present without admission or parole. He applied for cancellation of removal under INA § 240A(b) but the Immigration Judge and the BIA found that he was ineligible for cancellation because he had been convicted of a CIMT. The Ninth Circuit held that the conviction for witness tampering was categorically not a CIMT.

First, the Ninth Circuit noted that there are two categories of CIMTs: "those involving fraud and those involving grave acts of baseness or depravity." Rivera v. Lynch, 816 F.3d 1064, 1074 (9th Cir. 2016). For a non-fraudulent crime to be a CIMT, the crime "almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim." Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir. 2010). The Ninth noted that the BIA had added a third category of CIMTs, which includes those crimes that are "contrary to justice, honesty, principle, or good morals." Vasquez-Valle v. Sessions, No. 13-74213 slip op. at 9 (9th Cir. August 10, 2018). And, here is where the Ninth Circuit lays down the hammer, the Court says, "under our current precedent, neither of those definitions is the correct standard for determining whether an offense is a CIMT." Id. BOOM! The Ninth ignores that final category of CIMTs and analyzes whether Oregon witness tampering is either a fraudulent offense or an offense that involves base, vile, or depraved conduct. Now, this case would be interesting no matter what, but, it is even more interesting because the BIA this week issued a decision expanding the definition of a CIMT. Matter of Ortega-Lopez, 27 I.&N. Dec. 382 (BIA 2018). I am not sure exactly how this issue is going to play out. It’s going to be a question of whose definition of a CIMT controls; the BIA’s or the Ninth’s? And, if the BIA’s definition controls, is that definition unconstitutionally vague?

Back to Mr. Vasquez-Valle. The Ninth Circuit cited to a number of Oregon cases where the courts upheld convictions for witness tampering where there was no indicia of fraud or depravity. (Kudos to the attorneys for finding all of those cases). In one cited case that I found to be both funny and sad, but, mostly sad. The defendant was accused of molesting his girlfriend’s daughter. Through a form of semi-parental bribery, he tried to get the victim to withhold testimony or give false testimony. He told his girlfriend that her daughter was not allowed to play with his video games while he was in custody and that she could not give her daughter the Christmas presents that he had purchased for the daughter. In Oregon, the defendant’s conduct constituted witness tampering. State v. Bryan, 190 P.3d 470, 471 (Or. Ct. App. 2008). The Ninth Circuit found that those cases demonstrate that the Oregon statute is broader than the generic definition of a CIMT and that Oregon applies the statute to conduct that falls outside the federal generic definition of a CIMT.

The Ninth then went on to determine if the statute was divisible. And, if it was divisible, was the particular provision of the statute that Mr. Vazquez-Valle was convicted under a categorical match to a CIMT. The Ninth kindly gives us a tutorial in what constitutes a divisible statute, "a statute is divisible only if, inter alia, ‘it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could support a conviction." Rendon v. Holder, 764 F.3d, 1077 1087-88 (9th Cir. 2014) (quoting Matter of Chairez, 26 I.&N. Dec. 349, 353 (BIA 2014). Well, no wonder no one knows what a divisible offense is – that is unintelligible. But, the Ninth goes on to analyze the statute and show why it is divisible. First, the two subsections of the statute criminalize different conduct and second, they require different elements for a conviction. Second, the Ninth noted that the Oregon courts and prosecutors specify which acts violated which subsection of the statute. The Ninth noted, "[a] jury in Oregon cannot convict a defendant under Oregon Revised Statutes § 162.285(1)(B) without finding that the witness had been summoned – but a defendant may be convicted under subsection (a) without that element. Vasquez-Vallez, slip op. at 16. The Ninth found that Mr. Vazquez-Valle had not been convicted of a CIMT and remanded the case to the BIA.

Vasquez-Valle v. Sessions, No. 13-74212 (9th Cir. August 10, 2018).

The Courts Have Jurisdiction Under the Federal Tort Claims Act for Damages Suffered as a Result of a Noncitizen’s Removal from the United States in Violation of a Court’s Temporary Stay of Removal

It costs $5.00 to file a habeas petition and perhaps we should all be filing a lot more of them. The Ninth Circuit held that a noncitizen who was removed from the United States in direct violation of a court order staying his removal, can bring suit under the Federal Tort Claims Act (FTCA) against the government. The Ninth held that the jurisdiction-stripping provisions of INA § 242(g) do not apply where a governmental agency violates a court order staying removal. The jurisdiction-stripping provisions only apply to actions challenging discretionary decisions to initiate proceedings, adjudicate cases, and execute orders. Now before popping open the champagne (though perhaps some champagne is in order here) the Eighth Circuit came to a contrary result, and held that it lacked jurisdiction over the FTCA claims of a noncitizen who was wrongfully removed in violation of a stay issued by the BIA. Silva v. United States, 866 F.3d 938 (8th Cir. 2017). So, this issue is likely going to the Supreme Court.

Here is the first sentence of the opinion: "On February 6, 2015, agents of the Department of Homeland Security wrongfully removed Claudio Anaya Arce (Anaya) to Mexico, in direct violation of a temporary stay of removal." Now while that first sentence is not exactly as immortal as: "It is a truth, universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife." Or, "Mrs. Dalloway said she would buy the flowers herself." It is an excellent first sentence. It explains the entire case in one sentence. Mr. Anaya had been previously removed from the United States and on April 12, 2014, he was apprehended by CBP. He requested withholding of removal claiming that he had a fear of persecution or torture in Mexico. The asylum officer found that he had not established a reasonable fear of persecution and the Immigration Judge affirmed the negative reasonable fear finding. Mr. Anaya filed an emergency petition for review with the Ninth Circuit and a motion for an emergency stay. On February 6, 2015, at 11:25 am the Ninth Circuit issued the emergency stay. Mr. Anaya’s attorney faxed a copy of the stay to the deportation officer and called the deportation officer to inform the officer about the stay. Nonetheless, at 2:15 pm DHS deported Mr. Anaya to Mexico. The Ninth Circuit was not pleased and ordered DHS to bring Mr. Anaya back to the United States, which they did on February 20, 2015. Mr. Anaya filed suit under the FTCA in federal district court claiming false arrest, false imprisonment, intentional infliction of emotional distress, and negligence. The District Court dismissed the case under INA § 242(g) finding that it did not have jurisdiction.

Here’s the statute:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

The government argued that Mr. Anaya’s claims fall squarely within the scope of INA § 242(g) because they rise from the Attorney General’s decision or action to execute the removal order. But, the Ninth Circuit pointed out that Mr. Anaya was not challenging the validity of the removal order and he did not claim that the Attorney General should have exercised his discretion to delay the removal. Instead, he argued that the Attorney General lacked the authority to execute the removal order because of the stay of the removal order issued by the Ninth Circuit. Here’s the money sentence, "A decision or action to violate a court order staying removal…falls outside of the statute’s jurisdiction-stripping reach." Anaya, slip op. at *8. The Ninth found that even if it agreed with the argument that Mr. Anaya’s claims tangentially "arise from" the execution of his removal order, that Ninth would still have jurisdiction because the Attorney General lacked the authority and therefore the discretion to remove him. Id. If you think about it, this line of reasoning makes sense. The Attorney General should not be able to ignore a court order and then argue that the court has no jurisdiction to review his actions. Kudos to attorney-extraordinaire Stacy Tolchin for her audacious advocacy!

Anaya Arce v. United States, No. 16-56706 (9th Cir. August 9, 2018).

A Conviction for Child Abuse and Neglect Under a Nevada Statute is Categorically not a Crime of Child Abuse under INA § 237(a)(2)(E)

The Ninth Circuit held that because the federal generic crime of child abuse requires a "reasonable probability" of harm to a child and the Nevada statute only requires a "reasonable foreseeability" of harm to a child, the Nevada statute is overbroad and is categorically not a crime of child abuse under INA § 237(a)(2)(E). Remember that this case is the second time that the Ninth has looked at the crime of child abuse this summer. I think these cases are going to be reheard en banc as there is a split within the panels and a split between the circuits.

Lorenzo Alvarez-Cerriteno is a native and citizen of Mexico. He has been living in the United States since March 9, 1985 and on December 1, 1990, he became a lawful permanent resident. On January 18, 2011, Mr. Alvarez-Cerriteno was convicted of child abuse and neglect under Nevada Revised Statutes § 200.508(2)(b)(1) (he punched his fourteen-year-old son). DHS charged Mr. Alvarez-Cerriteno with being removable for having been convicted of a crime of child abuse under INA § 237(a)(2)(E). Mr. Alvarez-Cerriteno filed an application for cancellation of removal for lawful permanent residents under INA § 240A(a). The Immigration Judge found that Mr. Alvarez-Cerriteno was removable as charged and denied his application for relief in an act of discretion. The BIA upheld the Immigration Court’s decision and found that there was no "realistic probability" that the Nevada statue could be used to prosecute conduct outside the scope of the generic crime in the INA. (Remember, that "to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). The only issue before the Ninth Circuit was whether Nevada Revised Statutes § 200.508(2)(b)(1) was categorically a crime of child abuse, because the Court has no jurisdiction to review discretionary decisions by the Attorney General.

The Ninth conducted a three-part analysis. First, they determined the elements of the federal offense. Second, they analyzed the elements of the Nevada offense. Finally, they compared the federal generic crime and the Nevada statute of conviction to determine whether the Nevada statute was overbroad. Was there a "realistic probability" that Nevada could prosecute conduct under its statute that falls outside the scope of the federal generic crime?

The big issue is what exactly is the federal generic definition of a crime of child abuse? There has been a split between the BIA and the Ninth Circuit as to what constitutes a crime of child abuse. But, the Ninth Circuit recently held (in a split panel decision) that the BIA’s interpretation of the crime of child abuse is entitled to Chevron deference. Martinez-Cedillo v. Sessions, No. 14071742, 2018 WL 3520402 at *11 (9th Cir. July 23, 2018). This panel of the Ninth deferred to the BIA’s definition and found that the "generic "crime of child abuse," as used in the INA, includes acts and omissions that (1) are criminally negligent and (2) create at least a "reasonable probability" that a child will be harmed. Matter of Soram, 25 I.&N. Dec. 378, 385-86 (BIA 2010)." Alvarez-Cerriteno v. Sessions, No. 16-73486 slip op. at *12-13 (9th Cir. August 8, 2018). So now we know what the federal generic definition of a crime of child abuse is!

The problem in this case is that there is not a clear definition of the Nevada crime of child abuse as defined by the Nevada courts. Section 200.508(2) does not specify what probability of harm to the child is required for prosecution under the statute. There are no Nevada cases on the issue of the probability of harm to a child. So, the Ninth Circuit analogized to other Nevada statutes and to a California statute defining child abuse to find "that, to sustain a conviction under section 200.508(2), the Supreme Court of Nevada would require proof that a defendant negligently exposed a child to at least a "reasonably foreseeable" harm, but no greater risk need be shown." Alvarez-Cerriteno slip op. at *17. It seems like a little bit of a stretch to me. Using that definition of the Nevada crime, it found that the Nevada statute is broader than the federal generic crime of child abuse because it includes conduct that creates only a "reasonable foreseeability" of harm to the child. Using a Duenas-Alvarez analysis, the Ninth Circuit found that the Supreme Court of Nevada found that this statute applied to a case where the child missed at least 47 days of school during a semester where the child stayed at home to take care of his father. Gibson v. State, No. 57193, 2011 WL 279352, at *1 (Nev. June 15, 2011). The Court concluded that the Nevada statute only required a "reasonably foreseeable" risk of harm to the child and was, therefore, overbroad and categorically not a crime of child abuse. Judge Berzon concurred in judgment finding that the panel was bound by the court’s decision in Martinez-Cedillo v. Sessions, she would rule in accordance with Judge Wardlaw’s dissent in that case.

Alvarez-Cerriteno v. Sessions, No. 16-73486 (9th Cir. August 8, 2018).

The Ninth Circuit Does Not Have Jurisdiction Over an Immigration Case Where There is No Final Removal Order

This week seems to have been a week, in part, about jurisdiction. The Ninth Circuit held that where a removal order was executed back in 2004 and the noncitizen was removed and then immediately paroled back into the United States, there is no final removal order over which the Ninth Circuit has jurisdiction. This case confused me so much that I actually contacted the attorneys of record to have them explain it to me. So, a huge thank you to Lori Walls, the excellent attorney on this case.

Mihai Nicusor-Remus is a native and citizen of Romania. In 2000, he entered the United States under the Visa Waiver Program (VWP). The VWP allows nationals of certain countries to enter the United States without a visa. However, it comes with a lot of catches. One of which is that by entering under the VWP, the noncitizen waives any right to contest removal other than for asylum. Noncitizens who enter through the VWP are not entitled to full removal proceedings, only to asylum-only proceedings. INA § 217. In May 2002, Mr. Nicusor was arrested for credit-card fraud. The government agreed to drop the charges after Mr. Nicusor agreed to work as an FBI informant. Then, in December 2002, Mr. Nicusor was again arrested for credit-card fraud. INS issued a Notice of Intent to Deport finding that Mr. Nicusor was removable and had waived his right to contest his removability as a VWP entrant. Mr. Nicusor contacted an FBI agent who got him released from INS custody. As part of his plea agreement, Mr. Nicusor agreed to testify against his co-conspirators in exchange for "assistance" in resolving his immigration status. The warning bells should be going off for every immigration advocate. In December 2003, Mr. Nicusor was convicted of one count of conspiracy and was sentenced to eight months imprisonment.

Now here is where it gets really interesting. In March 2004, the government released Mr. Nicusor from jail. An FBI agent and an ICE agent (by then INS had been divided into USCIS, CBP, and ICE) drove Mr. Nicusor to the U.S.-Mexico border. They escorted across the border into Tijuana and then paroled him back into the United States. (Since he was Romanian, I am not sure what kind of visa he had to enter Mexico). On March 4, 2004, the government issued Mr. Nicusor an I-94 Departure Record paroling him into the United States for "significant public interest" under INA § 212 (d)(5)(A). His parole later expired. Mr. Nicusor later testified that the agents wanted to take him out of the country and bring him back legally so that he could testify against the criminal organization at trial. In February 2012, DHS took Mr. Nicusor into custody for the prior 2002 removal order. He requested asylum and was referred to an Immigration Judge for asylum-only proceedings. The referral (note, it does not say Notice to Appear) lists Mr. Nicusor’s "Place and Manner of Arrival" as "Seattle Washington, Visa Waiver Program on April 2, 2000. And, it lists his arrival category as "VWP/violator". The BIA denied his applications for relief.

The Ninth Circuit noted that it has jurisdiction over a final order of removal. INA § 242(a)(1). So, the first thing the Ninth Circuit had to determine was which agency actions constituted final removal orders for purposes of the Ninth Circuit’s jurisdiction? The Ninth Circuit found that the 2002 removal order was a final order but that the BIA’s order denying Mr. Nicusor’s asylum application in asylum-only proceedings is not a final removal order unless the 2002 removal order remains in effect. The Ninth found that they had jurisdiction over the 2002 removal order as long as it had not been executed. They found that if a VWP entrant applies for asylum, DHS must place the VWP entrant in "asylum-only proceedings." 8 C.F.R. § 217.4(b)(1). The asylum-only proceedings do not result in a removal order, but they are similar to a stay of enforcement of the removal order. If the Immigration Court grants the application for asylum, DHS is prohibited from effecting the removal order unless the government terminates the non-citizen’s asylum status.

The Ninth Circuit noted that where EOIR denies an asylum application in asylum-only proceedings it "finalizes" DHS’s removal order of a VWP entrant because the VWP entrant is entitled to no other forms of relief. Bao Tai Nian v. Holder, 683 F.3d 1227 (9th Cir. 2012). The issue in this case is whether DHS made an initial determination of Mr. Nicusor’s removability. The Ninth Circuit noted that the 2002 removal order is the only determination of his removability. When ICE apprehended him in 2012, it did not make an additional determinability of removability. Accordingly, if the 2002 order was executed when he left the country in 2004, then he is not subject to a final removal order, and DHS erroneously referred him to asylum-only proceedings. When Mr. Nicusor left the United States in 2002 he executed his final removal order. Because there is no final removal order the Ninth Circuit found that it lacked jurisdiction to hear the case.

Remember how I said this case confused me? I contacted Lori Walls, the attorney of record and she confirmed that Mr. Nicusor is looking at the possibility of a new NTA and a new removal proceeding starting from scratch. It seems that the 2004 removal and subsequent re-entry under parole, voided the VWP issues for Mr. Nicusor. Once again, audacious advocacy!

Nicusor-Remus v. Sessions, No. 15-70588 (9th Cir. August 8, 2018).

The Marital Communications Privilege Applies to Sham Marriages

In a criminal case related to immigration law, the Ninth Circuit found that the marital communications privilege applies to sham marriages. I think that we might be able to use this case for our marriage fraud cases. I am scratching my head at this one, but you have to admire the audacious advocacy. And, the firm of record was none other than the firm of one of Donald Trump’s former attorneys, Marc Kasowitz – Kasowitz was not the attorney of record, but it was his firm.

Dimitry Fomichev is a native and citizen of Russia. In 2003 he came to the United States on a tourist visa. In 2006 he met Svetlana Pogosyan and the couple got married. Ms. Pogosyan filed an immigrant visa petition for him and the visa was approved. Two years later, the couple removed the condition on Mr. Fomichev’s residency. In 2010 the Internal Revenue Service started investigating the couple. That year, Ms. Pogosyan met with the IRS agents at a coffee shop and answered questions about the couple’s tax returns. The IRS agents told Ms. Pogosyan that lying to federal agents is a felony and that she could be culpable and owe back taxes. She told the agents that she agreed to marry Mr. Fomichev so that he could get U.S. citizenship. He agreed to pay her rent in exchange for the marriage. The couple was still married, and Ms. Pogosyan agreed to wear a wire. In January 2011, Ms. Pogosyan testified before the grand jury and stated that Mr. Fomichev needed to marry a U.S. citizen in order to obtain citizenship and that he agreed to provide housing in exchange for the marriage. She testified that they never lived together and that the marriage was not intended to last more than a few years. In October 2012 the couple filed for divorce and in December 2012, their divorce was finalized.

In March 2013, the government charged Mr. Fomichev with three counts of subscribing to false income tax returns, two counts of making a false statement to the United States to get an immigration benefit, and two counts of making a false statements in immigration documents. Mr. Fomichev filed a motion to suppress the recordings of his conversations with Ms. Pogosyan and filed a motion to suppress Ms. Pogosyan’s testimony describing the conversation. He argued that the communications were privileged because the statements were made when the couple was married. The government argued that the marital communications privilege does not apply to sham marriages. They argued that because Mr. Fomichev married Ms. Pogosyan for fraudulent purposes, he had not expectation of privacy in their communications.

First, the Ninth Circuit explains the two privileges that arise from a marital relationship: 1) the marital communications privilege; and, 2) the spousal testimonial privilege. Federal Rules of Evidence Rule 501. The marital communications privilege protects statements or actions that are intended as confidential communications between spouses made during the existence of a valid marriage; unless the marriage became irreconcilable when the statements were made. Either spouse may invoke the privilege and "the protection it affords to statements made during a marriage survives the marriage." United States v. Fomichev, No. 16-50227 slip op. at *10 (9th Cir. August 8, 2018). Remember that privilege – it might be able to help us. The purpose of the privilege is to ensure that spouses can communicate their deepest feelings without fear of eventual exposure in a court of law. The spousal testimonial privilege prohibits one spouse from testifying against the other in criminal cases during the course of their marriage. The witness-spouse alone has the privilege to refuse to testify adversely. The spousal testimonial privilege ends when the marriage ends. The courts have found that there is a sham marriage exception to the spousal testimonial privilege. In other words, there is no spousal testimonial privilege where the purpose of the marriage was for invoking the spousal testimonial privilege. United States v. Saniti, 604 F.2d 603 (9th Cir. 1979).

The Ninth then asks the question, should the government be allowed to use Mr. Fomichev’s private marital communications in order to prove its case? The answer is no. The Ninth recognized that there are many reasons that couples get married including for estate planning purposes, to secure health benefits, and to increase their chances of adopting children. The Ninth then quotes in a footnote the following: "Just as marriages for money, hardly a novelty, or marriages among princes and princesses for reasons of state may be genuine and not sham marriages, so may marriages for green cards be genuine." United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002) quoted in Fomichev, slip op. at *13 n.3 (emphasis added). The Ninth went on to note that the marital communications privilege only extends to communications made during the marriage or until a marriage becomes irreconcilable. The Ninth Circuit then remanded the case to the District Court to determine whether the marriage had become irreconcilable at the time Ms. Pogosyan was wearing a wire and the IRS was recording their conversations.

Now while this case may not apply to immigration proceedings, especially since the Federal Rules of Evidence do not apply; the case clearly applies to any criminal immigration fraud proceedings and might be very helpful. Kudos once again to audacious advocacy!

United States v. Fomichev, No. 16-50227 (9th Cir. August 8, 2018).

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