Weekly Case Updates: 03/16/2018

Weekly Case Updates: 03/16/2018

If you are going to kill someone, make sure you finish the job. While voluntary manslaughter is not an aggravated felony crime of violence, attempted involuntary manslaughter is. The take-away for us is only allow clients to plead to a violent offense with a mens rea of recklessness to avoid an aggravated felony crime of violence charge.

Finally, it has become clear to me why Sessions referred to himself the question of whether being the victim of private criminal activity constitutes a "particular social group" for asylum or withholding. He called for briefs on this issue. Matter of A-B-, 27 I.&N. Dec. 227 (A.G. 2018). At first, I thought it was clear that being the victim of private criminal activity has never been a ground for asylum, so I was confused by this crime. This past week I read several other blog posts on this issue and the consensus is that he is trying to eliminate domestic violence as a grounds for asylum. In other words, he might reverse Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014) (particular social group composed of married women in Guatemala who are unable to leave their relationship). If you have an A-R-C-G- case, you might want to consider filing it quickly. This theory makes sense, especially since the attorney in Matter of A-B- has posted that it was an A-R-C-G- case.

BIA Decisions – There Were No Ninth Circuit Decisions This Week

Attempted Voluntary Manslaughter is a Crime of Violence While Voluntary Manslaughter is Not

In a remarkably well-reasoned decision, the BIA held that attempted voluntary manslaughter is an aggravated felony crime of violence as defined by 18 U.S.C. § 16(a) ("an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another."). The Board noted that voluntary manslaughter as defined by Cal. Penal Code § 192(a) ("unlawful killing of a human being without malice… upon a sudden quarrel or heat of passion.") lacks the mens rea necessary for a crime of violence as defined by 18 U.S.C. § 16(a) because it can be committed with recklessness. But, attempted voluntary manslaughter requires a specific intent to kill so it involves the volitional use of force. As I said, it’s a well-reasoned decision. It is a good decision to use to understand crimes of violence and the type of force needed to meet the definition of a crime of violence. However, if your client is charged with attempted voluntary manslaughter plead to something else that has a mens rea of recklessness.

Matter of Cervantes Nunez, 27 I.&N. Dec. 238 (BIA 2018).

In Determining Whether a State Offense is Punishable as a Felony Under the Federal Controlled Substances Act the Adjudicator Does Not Need to Look Solely at the Provision of the Act that is Most Similar to the Statute of Conviction

The BIA found that a conviction for possession of cocaine with intent to distribute within 1,000 feet of school property is an aggravated felony drug trafficking offense. The noncitizen had been convicted of a New Jersey statute that prohibited, in relevant part, possession of cocaine with intent to distribute, or dispense within 1,000 feet of school property in violation of a New Jersey statute. The Immigration Court found that the State offense was not an aggravated felony drug trafficking crime because the state offense was overbroad and included "dispensing" a controlled substance while the federal offense for possession of a controlled substance near school property with intent to distribute (21 U.S.C. § 860) did not. The Board noted that 21 U.S.C. § 860 included the lesser included offense of 21 U.S.C. § 841 which includes possession with intent to dispense a controlled substance. The Board found it was a categorical match. The BIA also found that the New Jersey statute was divisible as to the identity of the controlled substance because the identity of the controlled substance is an element of the offense not a means to committing the offense.

The concurring opinion in this case posited that this approach is ridiculous and relied heavily on Justice Alito’s dissent in Mathis. He believed that the proper inquiry was whether all violations of the New Jersey statute were punishable as felonies under the Controlled Substances Act as a whole.

Matter of Rosa, 27 I.&N. Dec. 228 (BIA 2018).


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