US Ct of Appeals for the 3rd Cir., No. 13-2011
June 27, 2014
Petitioner, an El Salvadoran national, EWI’d in 1988. He is married to a USC and father to five USC children. In 2010, petitioner pled guilty to unlicensed business in firearms dealing, pursuant to 18 U.S.C. §§ 922(a)(1)(A), (a)(2). After serving seven months of a forty-six month sentence, petitioner was placed in §240 removal proceedings. Petitioner conceded the government’s charge of inadmissibility for entry without inspection or parole, but contested inadmissibility for a CIMT under 212(a)(2). In a brief statement, the IJ declared petitioner offense’s was a malum in se crime involving moral turpitude. The BIA affirmed with only a cursory discussion. On appeal, the government argued the issue was not justiciable because, since the petitioner was inadmissible on other grounds, an unfavorable finding on the CIMT issue would not have serious adverse consequences to the petitioner.
1) The court held that Mayorga would suffer serious adverse consequence if convicted of the CIMT and therefore found the issue justiciable. Even though petitioner conceded inadmissibility on other grounds, the CIMT issue is justiciable because the collateral consequence of the determination would lead to a concrete and continuing injury under the Spencer standard. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Here, the injury is essentially a lifetime ban on re-entry, in light of 212(a)(2)(A)(i)(I), versus a ten-year ban for EWI alone. The difference between those consequences is an actual injury and not merely speculative, especially when one considers petitioner’s USC wife and children.
2) The court reversed the IJ and BIA’s findings that petitioner was guilty of a categorical CIMT. Under the categorical approach, petitioner’s offense under a licensing statute cannot be considered a CIMT. Matter of Abreu-Semino, 12 I. & N., Dec. 775, 776 (BIA 1968), Totimeh v. Att’y Gen., 666 F.3d 109, 116, and Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008). The categorical, and not the modified categorical approach, is applied because the records lacks sufficient factual findings for such an analysis and because the relevant statute is not clearly divisible. Jean-Loius v. Att’y Gen., 582 F.3d 462, 465-66.