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Top of the Ninth: Aug 31, 2018 - Part two

Top of the Ninth: Aug 31, 2018 - Part two

This week had so many decisions that I decided to divide up the blog into the two truly remarkable cases and the four more mundane but still important cases. This blog includes the finding that a California conviction for receipt of stolen property meets the federal definition of a theft offense; an amazing decision on asylum; a finding that making a false claim to U.S. citizenship on Form I-9 for a private employer is still a false claim to U.S. citizenship – but the government must provide the Form I-9 to make it’s case; and a BIA decision on the finality of appeals.

Ninth Circuit

A California Conviction for Receipt of Stolen Property is Categorically a Federal Theft Offense

Let’s start with the easiest case. The Ninth Circuit held that a California conviction for receipt of stolen property is categorically a theft offense and is an aggravated felony where the noncitizen was sentenced to a term of imprisonment in excess of one year.

Edwin Flores is a native and citizen of Mexico who was brought to the United States by his grandmother when he was five years old. He has lived here his entire life. He is married and has three young children, including a daughter who is autistic. He supports his wife, his children, his sister, and his mother. Mr. Flores has an extensive criminal history that seems mainly to consist of theft, burglary, and receipt of stolen property. In 2001, he was sentenced to two years imprisonment for three counts of receipt of stolen property. In 2002, INS removed Mr. Flores for having been convicted of an aggravated felony theft offense. Now remember, that Mr. Flores was brought to the United States when he was five years old and has spent his entire life here. Between 2002 and 2009, the government reinstated this administrative removal order three times. In 2009, Mr. Flores was put in expedited removal proceedings after he presented a counterfeit green card at the border. After being removed in 2009, he tried to reenter again three times between 2009 and 2012. In 2009 and in 2012, he was convicted of violating 8 U.S.C. § 1326 (illegal reentry of removed noncitizen) and was sentenced to twenty-seven months and thirty-three months in custody. In January 2015, he was again convicted of illegal reentry under 8 U.S.C. § 1326 and this appeal followed. Mr. Flores argued that his removal order in 2002 was invalid because receipt of stolen property under Cal. Penal Code § 496(a) is categorically not an aggravated felony. The short answer is that it is.

The Ninth found that the BIA decisions defining receipt of stolen property includes the following elements: 1) receipt, possession, concealment, or retention of property, 2) knowledge or belief that the property has been stolen, and 3) intent to deprive the owner of his property. To secure a conviction under Cal. Penal Code § 496(a) the government must prove the following elements: 1) stolen property; 2) knowledge that the property was stolen; and 3) possession, purchase, receipt, concealment, sale, or withholding of stolen property. Moreover, the defendant must have actual knowledge or belief that the property is stolen. The Ninth found that a conviction for Cal. Penal Code § 496(a) (receipt of stolen property) is categorically an aggravated felony theft offense where the noncitizen is sentenced to a term of incarceration in excess of one year. I can’t argue with the Ninth Circuit’s interpretation here, but I do think this law is unnecessarily harsh. I think we should go back to the days of 212(c) relief where a noncitizen who was convicted of an aggravated felony can still seek relief.

United States v. Flores, No. 16-50096 (9th Cir. August 28, 2018).

A Blistering Decision on Asylum and CAT Relief

In 1991, Moris Quiroz Parada fled El Salvador after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of the Frente Farabundo Marti para la Liberacion Nacional (FMLN) guerillas. Mr. Quiroz Parada’s brother was in the Salvadoran military during the civil war and his father worked as an assistant marshal, which is something like a sheriff. The family knew that the guerillas were targeting their family because the FMLN guerillas would begin calling out their family’s name when they entered their village. "Although the FMLN’s announcements were terrifying, they at least gave the family enough time to hide in the family’s well and thus avoid harm during the first several invasions." Quiroz Parada v. Sessions, No. 13-73967, slip op. at * 6 (9th Cir. August 29, 2018). The guerillas killed Mr. Quiroz Parada’s brother while he was on leave from the military and they grabbed Mr. Quiroz Parada, tied him up, carried him out of his home, beat him, and intended to forcibly conscript him, before they fled when the army suddenly arrived. Mr. Quiroz Parada then fled to the United States.

In 2000, Mr. Quiroz Parada’s father received a death threat from a former FMLN guerilla’s son, who had become a Mara Salvatrucha (MS) gang member. "This familial transition from FMLN guerilla to MS member was apparently common; Quiroz Parada’s family members have told him that many sons of former FMLN guerillas are now part of the MS gang. These FMLN descendants have long memories: the MS member who threatened Quiroz Parada’s father told him "You are going to die. Because your family was in the military and killed someone from my family . And one way or another you will die."" Quiroz Parada, slip op. at *8. His father did die under suspicious circumstances and his mother was forced to flee El Salvador after receiving threats from MS gang members whose fathers were FMLN guerillas. This case might give us another way to craft a ground for asylum from El Salvador.

In 1994, Mr. Quiroz Parada applied for asylum with the asylum office. In 2007, the asylum office interviewed him, and on May 31, 2007, his case was referred to an immigration judge. His merit’s hearing was scheduled for 2013; but, the government never updated their evidence on country conditions prior to the 2013 hearing. Fortunately, Mr. Quiroz Parada’s attorney was awake and updated his evidence. The Ninth found that Mr. Quiroz Parada had established past persecution based on his imputed political opinion and based on his membership in a social group as a member of a family who served in the Salvadoran government and military. The Ninth reiterated that "the family remains the quintessential particular social group." Quiroz Parada slip op. at 16.

Because Mr. Quiroz Parada had established past persecution he is presumed to have a well-founded fear of future persecution. The Ninth Circuit held that reliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution. (Remember the government had not updated their evidence since 2007 even though Mr. Quiroz Parada’s removal hearing was in 2013). In a bit of snark, the Ninth held, "Unlike fine wine, reports on country conditions do not improve with age." Quiroz Parada, slip op. at *20. The Ninth then went on to note that the staleness of the country condition reports was not even those most troubling part of the case. Mr. Quiroz Parada claimed that he suffered past persecution by the FMLN on the basis of his family association and on the basis of his imputed political opinion. At the time of the 2007 country condition reports, the FMLN had been reconstituted as a political party but did not have control of either the Salvadoran legislature or the presidency. But, in 2009, two years after the publication of the country condition reports and three years prior to the hearing, the FMLN rose to power. The Ninth noted that common sense dictates that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party when at the time of the hearing the government was being run by the same political party that persecuted Mr. Quiroz Parada and his family. The Ninth found that Mr. Quiroz Parada was eligible for asylum and withholding of removal and remanded the case to the BIA so that the Attorney General could exercise his discretion as to whether to grant asylum.

Next, the Ninth found that Mr. Quiroz Parada was eligible for relief under the Convention Against Torture (CAT) relief. To qualify for CAT relief, the noncitizen must prove that it is more likely than not that s/he will be tortured in the country of removal. 8 C.F.R. § 1208.16(c)(2). The torture must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 1208.l8(a)(1). The Ninth Circuit noted that there was significant evidence in the record demonstrating that Mr. Quiroz Parada credibly feared death at the hands of the MS; and, that the country condition reports not only established that the government acquiesced in the MS’s violence, but that the Salvadoran security forces engaged in torture on a regular basis. Quiroz Parada, slip op. at 26. The acquiescence standard is met where the record demonstrates that public officials at any level would acquiesce in the torture that the petition is likely to suffer. The Ninth remanded the case to the BIA to determine whether Mr. Quiroz Parada qualified for CAT relief. Excellent advocacy by Chris Stender.

Quiroz Parada v. Sessions, No. 13-73967 (9th Cir. August 29, 2018).

Private Employment is a Benefit Under the INA But Where the Government Cannot Produce the Form I-9 They Cannot Establish that the Noncitizen Made a False Claim to US Citizenship

This case is a mixed bag of good and bad. First, the Ninth Circuit held that a noncitizen who makes a false claim of U.S. citizenship to obtain private employment in violation of INA § 212(a)(6)(C)(ii)(I) is removable. But, where the government fails to produce the Form I-9 that establishes that the noncitizen made a false claim to citizenship the noncitizen is not subject to removal.

David Diaz Jimenez is a native and citizen of Mexico. In July 2013, DHS served him with a Notice to Appear alleging that he illegally entered the United States on or about September 15, 1993. Mr. Diaz conceded that he was removable for having entered the United States without inspection but denied that he ever made a false claim to U.S. citizenship. The Immigration Court found him deportable and the BIA affirmed.

Here is the relevant statute:

Any alien who falsely represents, or has false represented himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.

INA § 212(a)(6)(C)(ii)(I).

Mr. Diaz argued that he did not make a false claim to U.S. citizenship because seeking private employment is not a "purpose or benefit" under this statute. The Ninth Circuit said "wrong!" They held that in specifically referencing § 1324a in the text of statute [Section 1324a makes it unlawful to knowingly hire an unauthorized alien] Congress expressed an intent to make private employment a qualifying "purpose or benefit."

Mr. Diaz then argued that he could have only made a false representation of citizenship under § 1324a if he made a false representation on the actual form. The Ninth easily concluded that making a false representation of U.S. citizenship on the Form I-9 qualifies as a false representation under § 1324a. "The question is whether making a false representation on a Form I-9 is the only false representation of citizenship to procure private employment that qualifies as a false representation under § 1182(a)(6)(C)(ii)(I) [INA § 212(a)(6)(C)(ii)(i)." Diaz-Jimenez v. Sessions, No. 15-73603 slip op. at *14 (9th Cir. August 30, 2018). The Ninth held that a false representation of citizenship for the purpose or benefit of obtaining private employment must be on a Form I-9.

Here is the kicker, "There is nothing in the record showing that Diaz ever filled out a Form I-9. There is therefore nothing in the record to show that he made a false representation of citizenship under § 1324a(b)(2), and that as a consequence, he made a false representation of citizenship within the meaning of § 1182(a)(6)(C)(ii)(I). Diaz-Jimenez slip op. at 16-17. So, while telling a private employer that a noncitizen is in fact a U.S. citizen can in fact be a false claim to U.S. citizenship, it is only a false claim where the noncitizen completes the Form I-9 attesting that s/he is a U.S. citizen and that form is produced at a removal hearing.

Diaz-Jimenez v. Sessions, No. 15-73603 (9th Cir. August 30, 2018).

Board of Immigration Appeals

A Conviction Does Not Attain a Sufficient Degree of Finality for Immigration Purposes Until the Right to Direct Appeal Has been Exhausted or Waived

A noncitizen who has been convicted of a crime and has appealed that conviction based on the underlying merits of the conviction does not have a final conviction for immigration purposes. J.M. Acosta is a native and citizen of the Dominican Republic. In 1992 he was admitted to the United States as a lawful permanent resident. In 1993 he pleaded guilty to attempted criminal sale of a controlled substance and in 2016 he pleaded guilty to possession of a controlled substance. Based on the 1993 conviction and Immigration Judge found that he had been convicted of a crime involving moral turpitude and was removable from the United States. Mr. Acosta appealed that decision to the BIA arguing that possession for sale was not a crime involving moral turpitude. (It’s not clear when he was placed in removal proceedings). Anyhow, while the appeal was pending Mr. Acosta filed a motion to remand because he submitted evidence showing that he had filed a direct appeal of the 2016 conviction and it was currently pending before the New York courts. And, he argues that he is eligible for 212(c) relief for the 1993 conviction.

First, the BIA held that a state drug offense is categorically a crime involving moral turpitude. The crime had two essential elements: reprehensible conduct and a culpable mental state. The BIA held that the Federal offense of possession of a controlled substance with the intent to distribute is a crime involving moral turpitude because it requires the mental state of knowledge or intent and because the unlawful distribution of drugs is inherently reprehensible conduct. Matter of Khourn, 21 I.&N. Dec. 1041 (BIA 1997); Matter of Gonzalez Romo, 26 I.&N. Dec. 743 (BIA 2016). To Mr. Acosta’s credit, he argued that the intent in selling drugs may not be evil, such as where the seller’s intent is to relieve another person’s medical condition. You have to admire the argument. The BIA noted that there were doctors and pharmacists who were authorized to prescribe and disburse medications for such occasions.

Then the BIA looked to the finality of the conviction where there is an appeal pending. The BIA noted that prior to the passage of IIRIRA in 1996, it was well established that a conviction was not final for immigration purposes until the noncitizen had either exhausted or waived the right to direct appeal. The BIA had held that a pending late-reinstated appeal granted pursuant to New York’s late appeal procedure did not under the finality of a noncitizen’s conviction. Matter of Cardenas-Abreu, 24 I.&N. Dec. 795 (BIA 2009). The Second Circuit vacated this decision. Abreu v. Holder, 378 F. App’x 59 (2d Cir. 2010).

The BIA tried again. This time it held "that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived. Consequently, absent proof of a waiver of appeal rights, a conviction does not achieve finality for immigration purposes until the time for filing an initial direct appeal has expired under the laws of the applicable jurisdiction. However, once the DHS has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes." Matter of Acosta, 27 I.&N. Dec. 420, 432 (BIA 2018). To rebut the presumption of finality, the noncitizen must show that the appeal has been filed within the prescribed deadline and "must also present evidence that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings." Id. Appeals and other collateral attacks that do not relate to the underlying merits of the conviction will not be given effect to eliminate the finality of conviction. In other words, appeals that relate to the noncitizen’s sentence or that seek to reduce the charges to ameliorate the conviction for rehabilitative purposes or to alleviate immigration hardships do not affect the finality of the decision. It is only those appeals challenging the underlying merits of the conviction that affect the finality of the decision. There is a dissent in this case where the Board member argues that a conviction is a conviction is a conviction, and if a conviction is later vacated the noncitizen can file a motion to reopen.

Matter of Acosta, 27 I.&N. Dec. 420 (BIA 2018).

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