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Top of the Ninth: Part One: CIMTs and Retroactivity; Misrepresentation on Apps; and Pereira's Corner

Top of the Ninth: Part One: CIMTs and Retroactivity; Misrepresentation on Apps; and Pereira's Corner

This past week the Ninth Circuit held (once again) that crimes involving moral turpitude (CIMTs) are not unconstitutionally vague and that a finding that a crime was a CIMT was not impermissibly retroactive. The BIA held that noncitizens are generally bound by the claims they make on their signed applications. Two stunning district court decisions came down. One issued a preliminary injunction enjoining the Trump Administration from enacting a new policy that prohibited noncitizens who entered the United States without inspection from Mexico from applying for asylum. The second one found that the Policy Memorandum implementing Matter of A-B- to credible fear interviews was arbitrary and capricious and unlawful. I have also issued a new section to the blog called Pereira’s Corner where I blog about important Pereira decisions that have been coming down. I am dividing this blog into two parts. Part I is the Ninth Circuit and BIA decisions along with Pereira’s Corner. Part II is the district court decisions. If you represent asylum clients, I urge you to read Part II of this blog. The D.C. District Court decision will help you formulate your particular social group to avoid a dismissal under Matter of A-B-. Think of it as a holiday gift from the district court. Happy Holidays from the Top of the Ninth!

NINTH CIRCUIT

CIMTs, Retroactivity, and Void for Vagueness

Some of you might remember Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013) as the case that finally killed Matter of Silva-Trevino in the Ninth. Silva-Trevino was an Attorney General decision which held that the immigration court may rely on evidence outside of the record of conviction to determine if a crime was a crime involving moral turpitude (CIMT). Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008). A lot of the circuit courts found the Attorney General’s decision was not a permissible construction of the statute and held that the categorical and modified categorical approach applied to CIMT determinations. (The adjudicator could only look to the statute under the categorical approach and the record of conviction under the modified categorical approach if the statute were divisible to determine if the crime was a CIMT). The immigration courts and the BIA could not conduct these mini trials to look at the noncitizen’s conduct to determine if the crime was a CIMT. In 2015, the Attorney General vacated Matter of Silva-Trevino, 26 I.&N. Dec. 550 (A.G. 2015). So now that the BIA uses the correct standard Mr. Olivas-Motta is back and it’s not good for him.

Manuel Jesus Olivas-Motta was brought to the United States when he was ten days old. On October 12, 1976, the government granted him permanent resident status. On August 11, 2003, he was convicted of facilitation to commit unlawful possession of marijuana for sale. He conceded that this crime was a CIMT. In 2007, he pleaded guilty to felony endangerment under Arizona law. On April 2, 2009, DHS placed Mr. Olivas-Motta in removal proceedings and charged him with being removable under INA § 237(a)(2) for having been convicted of two crimes involving moral turpitude at any time after admission. Everyone agreed that the facilitation offense was a CIMT; so, the only real issue was whether the facilitation offense was a CIMT. Here’s the statute:

A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury.

B. Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor.

Ariz. Rev. Stat. § 13–1201.

Now here is where the case gets interesting. At the immigration hearing the IJ determined that the crime was categorically not a CIMT and was not a CIMT under the modified categorical approach. The IJ then held a Silva-Trevino hearing, looked at evidence outside of the record of conviction and determined that Mr. Olivas-Motta had been convicted of a CIMT. The case went up to the Ninth Circuit and the Ninth Circuit remanded the case holding that the immigration court had to use the categorical and modified categorical approach to determine if the underlying crime was a CIMT. When Mr. Olivas-Motta entered his plea to felony endangerment there were no published decisions on whether felony endangerment was a CIMT. In fact, there was an unpublished decision holding that it was not a CIMT! In re Carlos-Mario Almeraz-Hernandez, A78 624 143 – Eloy, 2006 WL 3203649 at *2(BIA, Sept. 6, 2006). But, while this case was pending, the BIA issued a published decision holding that felony endangerment was a CIMT. Matter of Leal, 26 I.&N. Dec. 20 (BIA 2012). One of the other changes that the Attorney General made in Matter of Silva-Trevino was to modify the definition of a CIMT to include scienter of recklessness. The change in definition has withstood a challenge under Chevron, finding that the statute was ambiguous and that the BIA’s interpretation of the statute was permissible. In Matter of Leal, the BIA held that felony endangerment was a CIMT because it included reckless conduct. (I am really oversimplifying here – apologies to Kara Hartzler who was the attorney of record on all of these cases.) The Ninth Circuit upheld this decision. Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014).

Back to Mr. Olivas-Motta. While the BIA and the Ninth Circuit were deciding Leal, Mr. Olivas-Motta’s case went back down to the BIA and the BIA held that under Leal, Mr. Olivas-Motta’s conviction for felony endangerment was a CIMT. Needless to say, Mr. Olivas-Motta (or his attorney) pulled out all the stops. First, he argued that the BIA’s application of Matter of Leal was impermissibly retroactive. Second, he argued that the panel was not bound by Leal v. Holder because it was wrongly decided. Third, he held that the concept of a CIMT was impermissibly vague. This split panel of the Ninth Circuit disagreed. (Yes, there is a dissent).

Retroactivity

First, the Ninth Circuit dealt with the issue of retroactivity. Remember, at the time Mr. Olivas-Motta entered his plea, there was one unpublished decision that held that felony endangerment was not a CIMT. No other tribunal had adjudicated this issue. The Ninth Circuit noted that when an agency decides to create a new rule through adjudicatory action, that rule is retroactive. SEC v. Chenery Corp., 332 U.S. 194 (1947). Mr. Olivas-Motta argued that Montgomery Ward applies and that courts must do a Montgomery Ward analysis. Under Montgomery Ward & Co., Inc v. FTC, 691 F.2d 1322 (9th Cir. 1982) the courts look to five factors:

(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

Montgomery Ward, 691 F.2d at 1333. The Ninth Circuit held that a change in law must have occurred before Montgomery Ward is implicated. "We therefore hold that Montgomery Ward retroactivity analysis is only applicable when "an agency consciously overrules or otherwise alters its own rule or regulation," or "expressly considers and departs from a circuit court decision." Olivas-Motta v. Whitaker, No. 14-70543 slip op. at *10 (9th Cir. Dec. 19, 2018). The Ninth Circuit found that there was no change in law. There was no precedential prior decision and unpublished decisions do not bind future parties. I can see where the Ninth is coming from; but I advise criminal attorneys all of the time and I let them know if there is an unpublished BIA decision holding that a certain crime is not a removable offense. This decision makes our jobs a little harder.

Mr. Olivas-Motta argued that it was not simply the unpublished decision, but the fact that before the Attorney General issued Silva-Trevino, a crime with a mens rea of recklessness could not constitute a CIMT unless the offense presented an "aggravated factor." Therefore, Arizona felony endangerment was not a CIMT. Olivas-Motta, slip op. at *13. The Ninth Circuit was not "persuaded". "As we explained in Leal II [Leal v. Holder], the aggravating-factor requirement "wa[s] not due to the reckless mens rea involved, but rather because of the underlying conduct; both this court and the Board have repeatedly stated that simple assault is generally not a CIMT." Olivas-Motta, slip op at *13. Whoa! UNDERLYING CONDUCT! Under the categorical analysis, the conduct is completely irrelevant. The courts are to look at the minimum conduct necessary to for prosecution under the statute. This panel needs to re-read Mathis v. United States, 136 S. Ct. 2243 (2016). Anyhow, the Ninth held that the decision was not impermissibly retroactive.

Preclusion

Now this is a Kara Hartzler case, so it does not end with a retroactivity analysis. (For those of you who don’t know Kara, she was the director of the Florence Project and is currently at the San Diego Public Defender’s Office. She is one of the best attorneys around. Period. Full stop. Whenever I see that Kara is the attorney of record, I read the case very carefully.) Mr. Olivas-Motta argued that the doctrines of claim preclusion and issue preclusion the BIA could not revisit on remand whether felony endangerment was a CIMT after determining initially that it was not. Fortunately for us, the Ninth Circuit provides us with definitions of claim preclusion and issue preclusion:

Under the doctrine of claim preclusion, a final judgment forecloses ‘successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’" Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). Under the doctrine of issue preclusion, parties may not relitigate "‘an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim." Id. (quoting New Hampshire, 532 U.S. at 748–49, 121 S.Ct. 1808).

Olivas-Motta, slip op. at *15. The Ninth found that claim preclusion requires a final judgment on the merits in a separate action and that by granting Mr. Olivas-Motta’s petition for review in 2013, his original action continued, and there was not separate action. Similarly, issue preclusion only applies when the issues are litigated and decided in the prior proceedings. Because the BIA on remand was acting within the same proceedings as the original appeal, preclusion does not apply.

Mr. Olivas-Motta does not give up. He argues the rule of mandate. I have heard of claim preclusion and issue preclusion; but rule of mandate???? Again, fortunately, the Ninth Circuit gives us the definition. "Under the rule of mandate, an administrative agency may not deviate from a supervising court’s remand order, and the reviewing court may review the agency’s decision on remand "to assure that its prior mandate is effectuated."" Olivas-Motta, slip op. at *17 (internal citations omitted). The Ninth Circuit found that its mandate in Mr. Olivas-Motta’s first petition did not conclude that felony endangerment was not a CIMT or that Matter of Leal was incorrectly decided. They held that nothing in the remand restricted the BIA from applying Matter of Leal to this case.

A CIMT is Not Unconstitutionally Vague

Finally, Mr. Olivas-Motta argued that a CIMT is unconstitutionally vague. The Ninth Circuit noted that it was bound by the Supreme Court’s decision in Jordan v. De George, 341 U.S. 223 (1951) and the Ninth’s own recent decision in Martinez-De Ryan v. Sessions, 895 F.3d 1191 (9th Cir. 2018). (You can read my blog about Martinez-de Ryan, here and you can read my blog dissecting Jordan v. De George here). As I have previously mentioned, I think Jordan v. DeGeorge is ripe for reconsideration by the Supreme Court, because the parties in that case never brought up the issue of whether a CIMT was unconstitutionally vague.

[I]t has been suggested that the phrase ‘crime involving moral turpitude’ lacks sufficiently definite standards to justify this deportation proceeding and that the statute before us is therefore unconstitutional for vagueness. Under this view, no crime, however grave, could be regarded as falling within the meaning of the term ‘moral turpitude.’ The question of vagueness was not raised by the parties nor argued before this Court.

Jordan v. De George, 341 U.S. at 229 (emphasis added). See!

The Ninth Circuit concludes the decision by reiterating its definition of a CIMT: "a crime is morally turpitudinous if it involves a conscious decision and a resulting harm, where "more serious resulting harm is required" as the level of conscious behavior decreases, i.e., from intentional to reckless conduct." Olivas-Motta, slip op. at *19.

Dissent

Judge Watford dissents from this decision. He argues that there was an intervening change in the law after Mr. Olivas-Motta entered his plea and the Ninth needed to assess whether the new rule could be applied retroactively in Mr. Olivas-Motta’s case. He contends that the majority would be right if the court’s decision were dictated by the plain language of the statute. But, he notes, a CIMT "has no intelligible meaning; it creates what Justice Jackson rightly labeled "an undefined and undefinable standard." Jordan v. DeGeorge, 341 U.S. 235 (1951) (Jackson, J., dissenting). Neither our court nor the BIA has been able to come up with "any coherent criteria for determining which rimes fall within that classification and which do not." Olivas-Motta, slip op. at *22 (Watford, J., dissenting) (internal citations omitted). The dissent argues that under Montgomery Ward the balance of the factors weighs heavily in favor of Mr. Olivas-Motta and that his conviction for reckless endangerment should be analyzed as the law stood in in 2007 when he entered his plea – pre-Silva-Trevino. I hope they file for rehearing en banc.

Olivas-Motta v. Whitaker, No. 14-70543 (9th Cir. Dec. 19, 2018).

BOARD OF IMMIGRATION APPEALS

A Noncitizen’s Signature on an Immigration Application Creates a Strong Presumption that They Know of and Assent to the Contents of the Application

The BIA held that when a noncitizen signs an immigration application there is a strong presumption that they know of and assent to the contents of the application and are bound to it. In this case, the noncitizens, A.J. Valdez and Z. Valdez, are a husband and wife and they are citizens of Venezuela. In 1993, they were admitted to the United States on visitors’ visas. In 1997, St. Mark’s Catholic Church filed a visa petition to classify Mr. Valdez as a special immigrant religious worker and to classify his wife as a derivative beneficiary. The church claimed that Mr. Valdez worked at St. Mark’s as a minister for several years. On January 13, 2000, the government granted the couple adjustment of status based on Mr. Valdez’s immigrant visa. On the Form G-325A (biographical information form) that he submitted with his adjustment application, Mr. Valdez listed St. Mark’s as his employer. So far everything seems fine. Then on April 25, 2011, the Valdezes flew into the Miami airport and applied for admission as returning residents. In secondary inspection, Mr. Valdez signed a sworn statement stating that he never worked as a minister in the United States. DHS placed the couple into removal proceedings.

Mr. Valdez testified that until he was in deferred inspection at the airport, he did not know that his adjustment application was based on his being a minister. He testified that after he entered the United States as a visitor, he went to St. Marks. A person who he believed was a pastor and an immigration attorney told him that he could help him get a green card "through the church" at a low low fee of only $15,000! The "pastor/immigration attorney" completed all of the forms and Mr. Valdez signed them. He claimed that he did not understand the contents because he did not read or speak English. His wife also signed the documents but also claimed that she did not understand the contents because she did not read or speak English.

The Immigration Judge (IJ) did not find the Valdezes credible. He found that they were removable under INA § 212(a)(6)(C)(i) (entering the United States through fraud or material misrepresentation). In a footnote, the BIA noted that the IJ also denied the couple’s application for a 237(a)(1)(H) waiver (fraud waiver for relatives of U.S. citizens and permanent residents) but that the couple did not raise that issue on appeal so it was deemed waived. Matter of A.J. Valdez and Z. Valdez, 27 I.&N. Dec. 496, 498 n. 3 (BIA 2018).

The Valdezes argued that no one had ever translated the documents for them and they did not know what they had signed. The IJ found that the couple was not credible and that their testimony was inconsistent. Mr. Valdez admitted that he never worked at St. Mark’s and gave conflicting testimony regarding his involvement with the church, including whether he ever attended services there. The BIA noted that even if the Valdezes were credible, they signed documents that contained false statements without asking that they be translated or explained. "The respondent’s signature was directly below a statement certifying, under penalty of perjury, that his application and the evidence submitted with it were all true and correct." Matter of Valdez, 27 I.&N. Dec. at 501. (Of course, if Mr. Valdez could not read or understand English, he did not understand that he was signing the forms under penalty of perjury and what that meant – just saying). The BIA found "At a minimum, the facts and circumstances indicate that the respondents made a conscious choice to avoid knowing about the misrepresentations their applications contained. Such a deliberate avoidance does not excuse their false claims." Valdez, 27 I.&N. Dec. at 501. The BIA found that DHS met its burden to establish that the Valdezes were removable under INA § 237(a)(1)(A) as noncitizens who were inadmissible at the time of adjustment of status. They dismissed the appeal.

Matter of A.J. Valdez, and Z. Valdez, 27 I.&N. Dec. 496 (BIA 2018).

PEREIRA’S CORNER

There has been so much litigation over Pereira and the issues are so important that I have decided to add a new feature to the blog called Pereira’s Corner. A published decision came out of the Sixth Circuit holding that Pereira does not apply outside of the stop-time rule. And an unpublished decision came out of the Fourth Circuit holding that the noncitizen waived his Pereira argument by conceding removal and waiving his right to an immigration hearing.

Pereira Does Not Apply Outside of the Stop-Time Rule

The U.S. Court of Appeals for the Sixth Circuit held that Pereira does not apply outside of the stop-time rule. Leonel Hernandez-Perez applied for cancellation of removal. His application was denied, and he filed a motion to reopen based upon new, previously unavailable evidence. The Sixth Circuit ultimately remanded the case to the BIA to reconsider Mr. Hernandez-Perez’s cancellation application. But we are only discussing Pereira here. Mr. Hernandez-Perez argued that the immigration court never had jurisdiction because he had a putative Notice to Appear.

The Sixth Circuit held that Pereira does not apply and that the BIA’s decision in Matter of Bermudez-Cota, 27 I&N. Dec. 441 (BIA 2018) was controlling. They held that Bermudez-Cota, was reasonable interpretation of the regulations and that a putative Notice to Appear was cured by a hearing notice with the date and time of the hearing. "We therefore conclude that jurisdiction vests with the immigration court where, as here, the mandatory information about the time of the hearing, see 8 U.S.C. § 1229(a) is provided in a Notice of Hearing issued after the NTA." Hernandez-Perez, slip op. at *10.

I have to say, I think this decision is wrongly decided. The statute mandating the contents of a Notice to Appear is unambiguous. The statute clearly states,

(a) Notice to appear

(1) In general In removal proceedings under section 1229a of this title, written notice (in this section referred to as a "notice to appear") shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following.*.*.*.:

(G)(1) The time and place at which the proceedings will be held.

INA § 239(a)(1)(G)(1). The regulations are irrelevant here (and are ultra vires to the statute) because the statute is clear and unambiguous. I believe that the BIA wrongly decided Bermudez-Cota and the circuits should not give it any deference. Sadly, I am not on the Sixth Circuit.

Hernandez-Perez v. Whitaker, No. 18-3137 (6th Cir. Dec. 14, 2018).

Defendant Waived His Pereira Argument by Conceding Removal

In an unpublished illegal reentry case the U.S. Court of Appeals for the Fourth Circuit found that the noncitizen waived his Pereira argument by conceding removal. By signing a stipulation agreement in 2004 the noncitizen knowingly and voluntarily conceded removability. He waived his right to be present at or even have a removal hearing.

Francisco Perez-Arellano is a native and citizen of Mexico. In 2002 U.S. Customs detained him as he attempted to smuggle 1.2 kilos of cocaine into the United States. He was convicted of importing cocaine and sentenced to 33 months in prison. While he was in prison, he was served with a Notice to Appear. He signed a stipulated request for a removal order and a waiver of hearing. He admitted the allegations in the NTA and conceded deportability. In March 2013 ICE agents found him in South Carolina and discovered that he had almost $200,000 in his car during a vehicle stop. The Fourth Circuit held that Pereira did not apply. "Simply put, Pereira did not address the question of an immigration judge’s jurisdiction to rule on an alien’s removability, and it certainly does not plainly undermine the jurisdiction of the 2004 removal proceeding." United States v. Perez-Arellano, No. 18-4301 slip op. at *6 (4th Cir. Dec. 17, 2018).

United States v. Perez-Arellano, No. 18-4301 (4th Cir. Dec. 17, 2018).

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