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Top of the Ninth: Jul 20, 2018

Top of the Ninth: Jul 20, 2018

A Weekly Analysis of the Board of Immigration Appeals and Ninth Circuit Immigration Decisions

by Merle Kahn

The first salvo has been launched in the Ninth Circuit to have the "crime involving moral turpitude" grounds of inadmissibility and deportability deemed unconstitutionally vague! Unfortunately, it fell short, but at least we have started. The noncitizen in this case argued that the term a "crime involving moral turpitude" is unconstitutionally vague because it fails to guarantee "that ordinary people have "fair notice" of the conduct that a statute proscribes." Dimaya v. Sessions, 138 S. Ct. 1204, 1212 (2018). Unfortunately, the Ninth Circuit held that it was constrained by a 1951 Supreme Court decision holding that the phrase "crime involving moral turpitude" was not so vague or meaningless as to deprive the noncitizen of due process. Jordan v. DeGeorge, 341 U.S. 223 (1951). In other Ninth Circuit news this week, the Ninth Circuit withdrew a decision holding that Customs and Border Protection had committed egregious Fourth Amendment violations by seizing a noncitizen based on his Latino ethnicity alone and denied the Government’s petition for rehearing en banc as moot. It was not a good week for immigrants in the Ninth. The BIA and the Attorney General did not issue any decisions.

Ninth Circuit

The Term a "Crime Involving Moral Turpitude" is not Unconstitutionally Vague

As George Orwell wrote in his essay, Shooting an Elephant, "a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes." I think the same can be said of the term a "crime involving moral turpitude." As you get closer and closer to the definition, what does a "crime involving moral turpitude" (CIMT) even mean? How can a court define it? And, how do we challenge this issue? Well, we are no closer to the answer of what it means, but we are beginning to see the path as to how we challenge this amorphous concept. We are going to have to appeal it to the Supreme Court.

Rocio Martinez-De Ryan is a native and citizen of Mexico. In or about 1999, she entered the United States without inspection. She paid off an employee at the Nevada Department of Motor Vehicles to issue identification documents to noncitizens who were living in the United States illegally. The federal government arrested her, and in 2010 she pleaded guilty to one count of 18 U.S.C. § 666(a)(2) (bribery of a state agent). DHS issued a Notice to Appear and charged Ms. Martinez-De Ryan with inadmissibility under INA § 212(a)(2)(A)(i) (a crime involving moral turpitude). Ms. Martinez-De Ryan conceded inadmissibility but requested cancellation of removal for non-lawful permanent residents. (For cancellation of removal, a noncitizen cannot have been convicted of a crime as defined under INA § 212(a)(2) – which includes crimes involving moral turpitude). The Immigration Judge ruled that Ms. Martinez-De Ryan’s conviction constituted a CIMT making her ineligible for cancellation of removal. The Board of Immigration Appeals agreed. Ms. Martinez-De Ryan appealed to the Ninth Circuit. The Ninth Circuit, in a footnote, noted that on appeal that Ms. Martinez-De Ryan had failed to argue that the federal bribery statute was categorically not a CIMT at the administrative level and that they lacked jurisdiction to consider that issue because she had failed to exhaust her administrative remedies. It’s our periodic reminder that we must bring every claim possible before the Immigration Court and the BIA in order to exhaust our administrative remedies. It’s also our periodic reminder that we must read every footnote.

The Ninth Circuit ruled that the phrase a "crime involving moral turpitude" was not unconstitutionally vague and that the Court was bound to follow Supreme Court precedent. The Supreme Court has held that the phrase, a crime involving moral turpitude was not so vague or meaningless as to be a deprivation of due process. Jordan v. De George, 341 U.S. 223 (1951). The Ninth Circuit noted that it has previously follows the Jordan ruling and has held that a conviction for willful tax evasion was a crime involving moral turpitude rendering the non-citizen inadmissible. Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957). The panel held that it was bound to follow Supreme Court and Ninth Circuit precedent under Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc).

I think it might be helpful to take a slight detour here and discuss Miller v. Gammie. Miller v. Gammie, is actually a tragic decision involving child molestation and whether social workers had absolute immunity from prosecution for placing a child who was known to sexually abuse other children in a foster family without informing the foster parents. But, for our purposes, the important holding is that where a higher court (e.g. the Supreme Court or an en banc decision from the Ninth) issues a decision that is irreconcilable with prior circuit authority, the higher court’s ruling is controlling. We are all bound by Supreme Court decisions and by prior circuit decisions. It’s basic stare decisis. Back to Ms. Martinez-De Ryan. The Ninth held that they were bound by the Supreme Court’s decision in Jordan and by the Ninth Circuit’s subsequent decision in Tseung Chu.

The Government tried to make argument that the void-for-vagueness doctrine does not apply to the grounds of inadmissibility at all. The Government cited to a 1967 Supreme Court decision that held that which held that the "constitutional requirement of fair warning" does not apply to the grounds of excludability because Congress has plenary power to make rules for admission of noncitizens and can exclude those who possess those characteristics which Congress has forbidden. "Here Congress commanded that homosexuals not be allowed to enter." More specifically, Congress said that persons with ‘psychopathic personality’ "which it declared to be inclusive of those having homosexual and perverted characteristics" were grounds for exclusion. Boutilier v. Immigration & Naturalization Serv., 387 U.S. 118, 123–24 (1967). Now why the Government would choose to cite to that anachronistic, ugly, hateful case, is beyond me. But, the Government argued that in Boutilier, the noncitizen was not deported for conduct that he engaged in after entering the United States, but for characteristics he possessed at the time of entry. Boutilier, 387 U.S. at 123. The Ninth Circuit noted that Ms. Martinez-De Ryan engaged in the conduct at issue after the time of entry and that the conduct in question was not a status or condition – rather it was a criminal act; so Boutilier does not apply.

Finally, the Court held that the Supreme Court’s recent decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), (18 U.S.C. § 16(b) (crime of violence residual clause) was unconstitutionally vague and could not be a grounds for removability) did not apply in this case. The Court noted that Dimaya interprets the statutory "residual" clause whose wording does not include the term a "crime involving moral turpitude" and is not tethered to recognized common law principles. The Court in a footnote noted that three other circuits have held that Jordan remains good law even after Dimaya. The attorney in the case will be seeking rehearing en banc. And, it is possible that this case (or at least, this issue) will be coming soon to a Supreme Court near you.

Martinez-De Ryan v. Sessions, No. 15-70759 (9th Cir. July 17, 2018).

Ninth Circuit Withdraws a Decision Terminating Removal Proceedings Where Evidence of Alienage was Obtained through an Unconstitutional Search and Seizure

In what might be a very troubling sign, the Ninth Circuit withdrew a 2017 decision terminating removal proceedings where the Government obtained evidence of alienage through an unconstitutional search and seizure. The Ninth Circuit held that they will be issuing a new decision in due course. In this case, Luis Enrique Sanchez was out on his boat with a few friends when the boat’s engine failed and the passengers called the Coast Guard for assistance. The Coast Guard towed the boat into Channel Islands Harbor, a private harbor in southern California. When the boat arrived, there were eight Coast Guard officers waiting for Mr. Sanchez and his friends. They immediately detained the men, frisked, them and arrested them. The Coast Guard then called Customs and Border Protection (CBP) who seized the men, they detained Mr. Sanchez for two more hours, strip searched him, and retained his wallet and identification. A CBP officer prepared a Form I-213 (Record of Deportable/Inadmissible Alien) for Mr. Sanchez.

Mr. Sanchez is a citizen and national of Mexico who entered the United States without inspection in March 1988 when he was seventeen years old. In 2004 he filed a Family Unity Benefits and EAD application based on his father’s status. In 2009, USCIS denied the applications because he had been convicted of three misdemeanors (to wit – driving without a license, speeding, and failing to pay a traffic fine). I won’t even attempt to delve into the ridiculousness of that law. Anyhow, nine months after the fishing trip, ICE served Mr. Sanchez with a Notice to Appear. Mr. Sanchez appeared in Immigration Court and filed a motion to suppress and a motion to terminate proceedings. The IJ granted the motion to suppress, denied the motion to terminate, and ordered Mr. Sanchez removed to Mexico. The BIA affirmed the IJ’s decision and concluded that Mr. Sanchez’s identity and evidence of his alienage was independently derived from a routine record search and is not suppressible.

The Ninth Circuit held that the Coast Guards committed an egregious Fourth Amendment violation and violated an immigration regulation when they seized Mr. Sanchez accordingly, the exclusionary rule applies. The Ninth Circuit held that the Form I-213 had to be suppressed because it is tainted by the underlying egregious Fourth Amendment violation. The term "egregious" is important here which is why I keep reiterating it. The Ninth Circuit did not reach the issue of whether the Family Unity Benefits and Employment Authorization applications should have been suppressed. But this week, the Ninth Circuit withdrew this underlying decision. We will have to wait to see what happens.

Sanchez v. Sessions, No. 14-71768 withdrawing Sanchez v. Sessions, 870 F.3d 901 (9th Cir. 2017).

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