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Top of the Ninth: Jul 27, 2018

Top of the Ninth: Jul 27, 2018

This week’s decisions out of the Ninth Circuit include an ode to Bryan Garner, editor of Black’s Law Dictionary, and another reminder that the consulates have virtually unreviewable discretion over visa petitions. The Ninth Circuit, in a divided opinion, held that child abuse under Cal. Penal Code § 273A(a) is categorically a crime of child abuse as defined by INA § 237(a)(2)(E). The opinion itself notes that there is a split in the Circuits as to the definition of child abuse and there is a split within this panel itself, with an excellent dissent by Judge Wardlaw. It seems likely that this issue will be going to the Supreme Court very soon. At a minimum, this case seems ripe for rehearing en banc. Additionally, the wife of a Major in the U.S. Military is unable to immigrate to the United States because of a minor controlled substance adjudication from 1997. The adjudication may have been a juvenile adjudication so it might not even constitute a conviction under U.S. immigration law. But, because there is no consular reviewability, we won’t know. I really think that Congress needs to revisit the absolute ban on the inadmissibility of any convicted of a controlled substance offense. There should be some waiver available. Nothing came down from the Board of Immigration Appeals or the Attorney General this week.

Ninth Circuit

A Conviction for Child Abuse Under Cal. Penal Code § 273A(a) is a Crime of Child Abuse Under INA § 237(a)(2)(E) – But Maybe Not for Long

The Ninth Circuit held that a conviction for child abuse under Cal. Penal Code § 273A(a) is categorically a crime of child abuse under INA § 237(a)(2)(E). And, that even though the BIA had held that a conviction under Cal. Penal Code § 273A(a) was not a crime of child abuse at the time the noncitizen pleaded to the offense. The Ninth Circuit found that the BIA’s subsequent decision, rendering 273A(a) a crime of child abuse a few years later, did not make the categorization impermissibly retroactive. There are serious flaws with the majority opinion and there is a split between the Circuits so, I don’t think this issue is going away any time soon.

In order to understand this decision, let’s first start by looking at the statutes. INA § 237(a)(2)(E) provides: "Any alien who at any time after admission is convicted …of a crime of child abuse, child neglect, or child abandonment is deportable." California Penal Code § 273A(a) provides:

Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished….

The question is whether California Penal Code § 273A(a) is a categorical match to the federal generic definition of a crime of child abuse, child neglect or child abandonment. But, what exactly is a crime of child abuse, child neglect, and child abandonment? To be more precise, for immigration purposes, what is the federal generic definition of a crime of child abuse, neglect or abandonment? How can a tribunal determine the federal generic definition where there is no federal offense of child abuse? Do you look to how the fifty states defined the concept in 1996 when Congress enacted IIRIRA? Do you look to Black’s Law Dictionary? The Model Penal Code? Or, is this concept so nebulous as to be unconstitutionally vague? Is the BIA’s interpretation of what constitutes a crime of child abuse, abandonment or neglect reasonable? Should the Ninth Circuit defer to it under Chevron? Has the BIA’s definition of child abuse, abandonment, or neglect changed so significantly over the years that applying the most recent definition by the BIA to conduct that occurred before the opinion came down impermissibly retroactive? There are so many issues swirling around this 58-page treatise, that I read the entire decision four times before writing this blog. The decision reads like an argument between the majority and the dissent and a discussion between the Ninth Circuit and the BIA. More importantly, I think the Supreme Court will ultimately rule on it. However, for our purposes as practitioners, we must make sure that criminal defense attorneys understand that a conviction for Cal. Penal Code § 273A(a) is categorically a crime of child abuse under INA § 237(a)(2)(E).

Marcelo Martinez-Cedillo is a native and citizen of Mexico who has been a lawful permanent resident of the United States since 2005, though he has been living in the United States for much longer. The dissent says that he has been living here legally for the past fifteen years. In 2008 he was convicted of felony child endangerment under Cal. Penal Code § 273A(a) and driving under the influence. It was his third arrest for driving under the influence and this time one of his children was in the car with him and the child was not wearing a seatbelt. (Hence the 273A(a)). [I would just like to point out, having grown up in the 1960’s (in the era of Mad Men), most children, at some point, were passengers in a car with drivers who were likely intoxicated and no one wore seatbelts. Times and social mores have changed]. DHS placed him into removal proceedings and charged with removability under INA § 237(a)(2)(E). He argued that Cal. Penal Code § 273A(a) is not a crime of child abuse, neglect, or abandonment, that even if it is, the BIA’s interpretation should not be applied retroactively to him, and that the IJ improperly denied his motion for a continuance in an abuse of discretion. There is not much discussion about the denial of the motion for a continuance, so I am not going to discuss it.

Here’s the history of the child abuse statute. In 1996, when Congress enacted IIRIRA they included a removable offense for noncitizens who have been convicted of a crime of child abuse, child abandonment, or child neglect. In 1999, the BIA in a decision about sexual abuse of a minor mentioned that the crime of child abuse encompasses actions that do not require physical contact. Matter of Rodriguez-Rodriguez, 22 I.&N. Dec. 991 (BIA 1999). Two of the Circuits accepted this dicta as the definition of a crime of child abuse. Then in 2006, the Ninth Circuit remanded a case to the BIA, to define the crime of child abuse. The Ninth held that the passing reference in Matter of Rodriguez-Rodriguez was not sufficient. In 2008, the BIA responded and issued it’s first decision dedicated solely to the issue of what constitutes a crime of child abuse. Matter of Velazquez, 24 I.&N. Dec. 503 (BIA 2008). The BIA interpreted the crime of child abuse "broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. Velazquez, 24 I.&N. Dec. at 512. Here’s the language that I find really interesting, the definition includes "mental or emotional harm, including acts injurious to morals…" Id. Does that mean that a twenty-one year old who hands a seventeen year old a beer has committed an act of child abuse? What about a clerk who sells cigarettes to a minor? To put it mildly, I find the definition troubling. The Ninth Circuit also found the definition troubling and noted that the definition did not address whether the crime of child abuse required actual injury to a child. Martinez-Cedillo v. Sessions, No. 14-71742, slip op. at 11 (July 23, 2018).

In 2009, the Ninth Circuit reviewed the issue of child abuse again. The Ninth held that a conviction under Cal. Penal Code § 273A(b) was not a categorical match to a crime of child abuse as defined in INA § 237(a)(2)(E) because Section 273A(b) does not require an particular likelihood of harm to a child. The Ninth Circuit noted that Section 273A(b) was different from the felony provision of 273A(a) because it did not require that the perpetrator actually endanger the health or safety of the child. Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009). Remember, how I said earlier that this case seemed somewhat like an on-going discussion between the BIA and the Ninth? Well, the next year, the BIA "respectfully clarified" that a crime of child abuse was not limited to offenses requiring proof of injury to a child. Matter of Soram, 25 I.&N. Dec. 378 (BIA 2010). The BIA further clarified that the phrase "child abuse, child neglect, or child abandonment" in Section 237(a)(2)(E) denotes a "unitary concept." It expanded the definition to include civil concepts of child endangerment. But, the BIA noted that while the crime of child abuse, neglect, or abandonment required only a risk of injury to a child, that risk had to be "sufficiently great." Soram, 25 I.&N. Dec. at 382-83. The BIA held that each case had to be decided on a case by case basis to see if the risk of harm by the endangerment language was sufficient to bring the offense within the federal definition of a crime of child abuse.

With that background, the Ninth Circuit then determined whether it should apply Chevron deference to this issue. Remember, under Chevron, the courts of appeal have to first determine whether the statute at issue is ambiguous and then if it is, is the agency’s construction reasonable. [Since Gorsuch seems to think Chevron was wrongly decided, and Brett Kavanaugh also seems to think Chevron was wrongly decided, the Supreme Court may not keep this definition around for much longer]. Both the majority and the dissent agreed that the federal statute is ambiguous. However, the dissent (and a few other circuits) found that the BIA’s interpretation was not reasonable, so the agency’s decision was not entitled to deference. The big issue here, is whether the BIA’s definition of child abuse, child neglect, and child abandonment is a reasonable federal generic definition of the offense. Is a definition that does not require actual or intention injury to a child a reasonable federal definition of child abuse? The majority found that while the BIA’s definition does not require an actual or intentional injury to a child, under the unitary definition of child abuse, child neglect, or child abandonment, that "the term "child neglect" surely admits of such conduct." Martinez-Cedillo, slip op. at 19. The Ninth Circuit noted that there is no requirement that the BIA interpret a generic offense in the INA to conform to how the majority of states interpreted that term at the time that Congress enacted the law.

The Ninth Circuit held that the BIA’s interpretation of a crime of child abuse, neglect or abandonment is a reasonable construction of ambiguous statutory language. Accordingly, the Ninth Circuit joined the Second Circuit in deferring to the BIA’s interpretation.

The Ninth Circuit then went on to determine whether Cal. Penal Code § 273A(a) is categorically a crime of child abuse, neglect, or abandonment as defined by the BIA. It found that it was because Cal. Penal Code § 273A(a) requires criminally negligent conduct under conditions likely to produce great bodily harm of death to a child. The Ninth differentiated it from Cal. Penal Code § 273A(b) which requires a lesser standard for conviction.

Finally, the Ninth Circuit held that the BIA’s interpretation of child abuse was not impermissibly retroactive. Even though the BIA did not issue its clarification of a crime of child abuse until 2010 in Matter of Soram and Mr. Martinez-Cedillo entered his plea in 2008, the Ninth Circuit found that the decision was not impermissibly retroactive. The Ninth held that the BIA’s decision in Soram was not an abrupt departure from a well-established practice but rather a clarification of a prior uncertainty.

Now normally, I would not exhaustively blog about a dissent in a case, but in this case, I think the twenty-five page dissent here is pretty important. First, the dissent argues that the section of INA § 273(a)(2)(E) related to child abuse, neglect or abandonment is unconstitutionally vague. " "Vague laws invite arbitrary power," Sessions v. Dimaya, 138 S. Ct. 1204, 1233 (2018) (Gorsuch, J., concurring), as the Board’s ever-changing definition of the "crime of child abuse, child neglect, or child abandonment" illustrates." Martinez-Cedillo, slip op. at 35 (Wardlaw, J., dissenting). The dissent thoroughly dissects the statute and finds that it is unconstitutionally vague under Dimaya. The dissent then notes that the BIA in defining the criminal act of child abuse, sweeps into its definition statutes that are civil in nature and includes child endangerment. It’s important to note, that child endangerment is not part of the criminal definition of child abuse, neglect or abandonment. The dissent notes, "[w]hile child endangerment statutes share some elements with child abuse, neglect, and abandonment statutes, the crime of child endangerment, unlike the crime of child abuse, neglect, or abandonment, is chiefly concerned with the level of risk to the child, and it is, therefore, a different crime altogether." Martinez-Cedillo, slip op. at 42 (Wardlaw, J., dissenting). The dissent notes that this definition about how the court estimates a "degree of threat" to the child where the state statute does not specify the "degree of threat" requires the adjudicator to identify the level of risk of the "ordinary case" under the state statute of conviction. Remember, the Supreme Court found that it was the "ordinary case" analysis that rendered the statute in Dimaya unconstitutionally vague. The Supreme Court had left open the possibility that the statute was constitutional if the adjudicator used the categorical minimum conduct test as set forth in Taylor v. United States, 595 U.S. 575 (1990). I think the dissent is correct and the statute is unconstitutionally vague.

The dissent goes on to destroy the BIA’s decision in Matter of Soram. The dissent holds, "The Board inexplicably and unreasonably looked to the civil child abuse statutes in the thirty-eight states in force as of 2009, not the criminal laws in effect in 1996 when Congress enacted the statue. Martinez-Cedillo, slip op. at 49 (Wardlaw, J., dissenting). The dissent then notes that a fifty-state survey of contemporaneous state criminal laws is a methodological hallmark of the categorical approach, regularly employed to derive the generic definition of a federal crime. The dissent states, "[a]n Article III court may not be equipped to define, in the first instance, what the "crime of child abuse, child neglect, and child abandonment" should mean for fifty states, but it is well within our authority to require the Board to do it properly." Martinez-Cedillo, slip op. at 54-55 (Wardlaw, J., dissenting). Damn! Finally, the dissent argues that even if Soram were due deference, the new definition of child abuse should not apply to Mr. Martinez-Cedillo who pleaded to 273A(a) two years before Soram came down.

So, Cal. Penal Code § 273A(a) is categorically a crime of child abuse in the Ninth Circuit for right now. But, the underlying federal statute (INA § 237(a)(2)(E)) might be unconstitutionally vague under Dimaya. And, the BIA’s decisions in Rodriguez, Velazquez, and Soram might be irrational and not due any deference under Chevron. Moreover, there is a Circuit split on the issue of whether the BIA’s decision are rational and are due any deference under Chevron. At a minimum, this case will likely be reheard en banc and because there is a very strong split in the Circuits it will likely go up to the Supreme Court.

Martinez-Cedillo v. Sessions, No. 14-71742 (9th Cir. July 23, 2018).

There is Very Limited Judicial Review of a Consular Decision

In a decision that just makes you want to shriek because of the ridiculous outcome, the Ninth Circuit ruled that the Administrative Procedures Act provides no avenue for review of a consular officer’s adjudication of a visa on the merits. The only way a court can review a consular officer’s denial of a visa is for constitutional error where the visa application is denied with a "facially legitimate and bona fide reason." I think the Ninth Circuit was correct in its decision based on the concept of stare decisis but, I think the grounds of inadmissibility are too harsh and need to be revisited.

Jerrid Allen is a U.S. citizen and a major in the United States Army. He was stationed in Germany he met a German citizen, they got married and had three children. Major Allen was transferred to the United States and his wife applied for an immigrant visa. His wife had two convictions in Germany, the first for a theft offense, and the second was a 1997 conviction for "illicit acquisition of narcotics." The theft offense, arguably fell into the petty offense exception, or, at a maximum, she was eligible for a waiver of inadmissibility for it. But, there is no waiver of inadmissibility for a controlled substance offense. Major Allen tried to argue the controlled substance offense was a juvenile adjudication and not a conviction as defined under INA § 101(a)(48). The consular officer disagreed and Major Allen appealed the decision to District Court and then to the Ninth Circuit.

The government argued that the federal courts lack subject matter jurisdiction to review a consular officer’s refusal to issue a visa. The Ninth found that it had subject matter jurisdiction under the federal question statute, 28 U.S.C. § 1331. Second, the Ninth found that there are two exceptions to the doctrine of consular non-reviewability: 1) where the official failed to act (in other words, where, for example, the consular officer failed to adjudicate a visa); and 2) where the U.S. citizen’s constitutional rights have been violated by the denial of a visa to a foreign national without a facially legitimate and bona fide reason. The Ninth held that the district court had subject matter jurisdiction and that the doctrine of consular non-reviewability did not strip the district court of that jurisdiction.

The big question, is whether the courts can only review constitutional claims, as set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972) or, can the courts review both constitutional and legal claims under the Administrative Procedures Act (APA). The Ninth Circuit held that if it was going to allow for legal claims to go forward under the APA then consular nonreviewability would convert into consular reviewability. The Ninth Circuit objected to this approach, finding that it places too much of a burden on consular officers "who may or may not have any formal legal training" to force them to make legal determinations in a way that an administrative agency (such as the BIA) or a court might. Allen v. Milas, No. 16-15728 slip op. at 25 (9th Cir. July 24, 2018). The Ninth Circuit notes that "the officer is charged with adjudicating visas under rules prescribed by law, and the officer is instructed not to issue a visa if the officer "knows or has reason to believe that such alien is ineligible to receive a visa" under any provision of law." Allen, slip op. at 25-26. [I mean, seriously!!!!! In this case, the consular officer is making a decision that a U.S. military officer cannot ever live in the United States with his wife, and we shouldn’t expect a consular officer to make a legal determination that can withstand judicial scrutiny; because it’s too hard! Either this officer is going to have to always live abroad with his family and might have to leave the military, or he is going to have to be separated from his family because he wife had two minor criminal convictions!

Here is the dispositive language:

We join the D.C. Circuit in holding that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits. Whether considered under § 702(1) or (2), the doctrine of consular nonreviewability is a limitation on the scope of our judicial review and thus precludes our review under § 706. Allen raises no claim to review under Mandel, and regardless, we agree with the district court that the consular officer’s citations to the INA and identification of Mrs. Allen’s criminal history constituted facially legitimate and bona fide reasons for rejecting her visa application.

Allen, slip op. at 28. I think that Congress should create a waiver for the controlled substance ground of inadmissibility and, until that happens, Major Allen should seek a private bill for his wife. What a horrible result!

Allen v. Milas, No. 16-15728 (9th Cir. July 24, 2018).

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