Friday, April 24, 2015

Chavez-Alvarez v. Attorney General United States of America: A military sentence which is not apportioned cannot be used when calculating the length of a term of imprisonment



Chavez-Alvarez v.Attorney General United States
Precedential
Third Circuit Court of Appeals
2015 WL 1727476
Filed: April 16, 2015

Facts:

The facts of this case are the same as those set forth in Chavez-Alvarez v. Warden York County Prison, 2015 WL 1567019 (3d.Cir. 2015). Chavez-Alvarez is a citizen of Mexico who entered the United States at the age of two and later adjusted to a lawful permanent resident status.

In 2000, while serving in the United States Army in South Korea, Chavez-Alvarez plead guilty to making false official statements, sodomy, and violating the general article, and a military judge sentenced him to be confined for a period of 18 months. The military judge did not divide the 18 month confinement between the offenses.

In 2010, the Department of Homeland Security charged Chavez-Alvarez with being removable as having been convicted of an aggravated felony for committing a crime of violence and as having been convicted of two or more crimes involving moral turpitude not arising from a single scheme of criminal misconduct. The Immigration Judge found Chavez-Alvarez removable on both grounds and concluded that he was not eligible to apply for a 212(h) waiver. The Board of Immigration Appeals (BIA) affirmed, finding that Chavez-Alvarez’s sodomy conviction constituted an aggravated felony.

Chavez-Alvarez appealed to the Third Circuit, alleging that he was not convicted of an aggravated felony.

Holding:

The Third Circuit concluded that Chavez-Alvarez had not been convicted of a crime constituting an aggravated felony because the government had failed to meet their burden of proving that his sodomy conviction was a crime for which the term of imprisonment was at least one year.

The court found that the sentencing procedure used by the military judge did not provide a specific designation for how the sentence imposed was apportioned among the convictions. The court was particularly critical of the Government’s argument that Alvarez’s 18-month sentence, the nature of the crimes committed and the maximum allowable sentence for each offense was sufficient to attribute at least one year of the sentence to his forcible sodomy offense and remarked “The Government’s []argument requires mathematic gymnastics and rank speculation.” The court determined that because the record did not designate how the 18 month sentence was apportioned among Chavez-Alvarez’s four convictions, the uncertainty caused was to the benefit of Chavez-Alvarez and that the BIA committed error when they concluded he had been convicted of an aggravated felony for which the term of imprisonment was at least one year.

Wednesday, April 15, 2015

Chavez-Alverez v. Warden York County Prison (Precedential): Determination of Reasonableness of Mandatory Detention Not Dependent on Unreasonable Governmental Delay



Chavez-Alverez v. Warden York County Prison
Precedential

Third Circuit Court of Appeals
2015 WL 1567019
Filed: April 9, 2015

Facts:

Jose Juan Chavez-Alverez entered the United States and adjusted his status to that of lawful permanent resident. In 2000, while serving in the United States Army in South Korea, a General Court-Martial convicted him of giving false official statements, sodomy, and violating the general article. He was sentenced to eighteen months of imprisonment, served thirteen months in prison, and was released in February, 2012.

Immigration Customs and Enforcement (ICE) arrested Chavez-Alvarez and charged him with being removable as having been convicted of an aggravated felony. Chavez-Alvarez was ordered detained without bond and sent to York County Prison on June 5, 2012. He filed a petition for habeas corpus with the Middle District of Pennsylvania, which was denied. He then filed an appeal with the Third Circuit Court of Appeals.

Holding:

The Third Circuit found that Chavez-Alverez had been unreasonably detained and ordered that he be afforded a bond hearing. Applying Demore v. Kim, 538 U.S. 510 (2003), the court determined that mandatory detention was expected to be brief and that the reasonableness of any detention was dependent on a fact-specific balancing framework. The court found that at a certain point, the burden to the individual’s liberty outweighs the presumption that the individual will flee and/or is dangerous; at this tipping point, the government needs more to justify the detention as necessary to achieve the goals of the statue.

The court determined that after the first six months of Chavez-Alverez’s detention, the balance swung away from the government and towards Chavez-Alvarez. Towards the end of the first year of the detention, the government had enough exposure to Chavez-Alvarez to determine whether he posed a flight risk and further, that the government was reasonably aware that the issues surrounding Chavez-Alvarez’s case and appeal were complex and would take a substantial amount of time to resolve. Moreover, the court determined that the reasonableness of detention does not hinge on whether the government unreasonably delayed a resolution of the case but instead found that the justification for detention must be whether the detention is necessary to achieve the goals of the statute—ensuring that the individual is not a flight risk and that there is no danger to the community.

Additional Information: 

Law 360 has written an article providing more information about this case. It is available here
                

Shalom Pentecostal Church v. Acting Secretary U.S. Dept. of Homeland Sec. (Precedential): I-360 visa application does not require the two years of qualifying religious work to be done in lawful immigration status



Shalom Pentecostal Church v. Acting Secretary U.S. Dept. of Homeland Sec.
Precedential
2015 WL 1529111
Third Circuit Court of Appeals
Filed: April 7, 2015

Facts:

Carlos Alencar entered the United States on a B-2 nonimmigrant tourist visa in 1995. He overstayed his visa, and in 1997 began seeking legal immigration status as a special immigrant religious worker when he first qualified for an I-360 visa petition. He began working for the Shalom Pentecostal Church in 1998 as a senior pastor, and in 2009 the church filed an I-360 petition on his behalf. United States Citizenship and Immigration Service (CIS) denied the petition on grounds that pursuant to newly promulgated 8 C.F.R. § 204.5(m)(4) and (11), the church had failed to establish that Alencar had been performing full-time work “in lawful immigration status” in the two year period preceding the petition.

The church appealed on behalf of Alencar, and the district court invalidated the regulation, finding that the statutory language of the Immigration and Nationality Act (INA) was clear and that the additional language in the regulations was inconsistent with the statutory scheme. The government appealed, alleging that the church did not have standing and that the district court erred in finding the regulation ultra vires.

Holding:

The Third Circuit found that the church and Alencar had standing. The court also found that the regulation requiring that work performed be done “in lawful immigration status” was inconsistent with the plain text of the statute and therefore invalid.

The court applied the Chevron two-step analysis to the regulation and found that under the first step of Chevron, Congressional intent was clear, and there was no need to look to the second step of Chevron. The court found that based on the text of 8 U.S.C. § 1225(k)(2), Congress intended that a certain number of days (180) was required before special immigrant religious workers would be disqualified from applying for permanent resident status. Further, because elsewhere in the INA Congress specified when lawful immigration status was a prerequisite to a grant of status or relief, the court found that the omission of this in 8 U.S.C. § 1225(k)(2) was deliberate. Because the court found that Congressional intent and the text of the statute was unambiguous, the court upheld the invalidation of the regulation.

Wednesday, April 8, 2015

Gonzalez-Posadas v. Attorney General U.S. (Precedential): Third Circuit adopts “one central reason” standard for withholding of removal.

Gonzalez-Posadas v. Attorney General U.S.
Precedential
2015 WL 1379693
Third Circuit Court of Appeals
Filed: March 26, 2015

Facts:

Hernan Gonzalez-Posadas, a native and citizen of Honduras, entered the United States in September, 2012; was found inadmissible and was removed from the United States in October, 2012. In February, 2013, he reentered the United States; was apprehended by DHS and issued a reinstated removal order. Gonzalez-Posadas then expressed a fear of returning to Honduras for two reasons; first, that the Mara Salvatrucha wanted to kill him, and second, that his family mistreated him because they believed he was gay.

Gonzalez-Posadas applied for withholding of removal and protection under the Convention against Torture (CAT). At Gonzalez-Posadas’ hearing, the Immigration Judge (IJ) determined that although Gonzalez-Posadas was a member of the social group consisting of gay men, that his testimony was not credible and that the events complained of were insufficient to rise to past persecution or a risk of future persecution because of sexual orientation. The IJ denied Gonzalez-Posadas’ application for withholding of removal and protection under CAT. The Board of Immigration Appeals (BIA) accepted the designation of gay men as a cognizable social group and upheld the determination that Gonzalez-Posadas had not suffered past persecution or established a clear probability that he would be suffer future persecution because of his sexual orientation. Gonzalez-Posadas appealed to the Third Circuit.


Holding:

The Third Circuit upheld the decision of the BIA. The court adopted the reasoning of the BIA in Matter of CTL, 25 I&N Dec. 341 (BIA 2010), which extended the “one central reason” standard to cases involving withholding of removal. They found that to establish eligibility for withholding of removal based on membership in a particular social group, the applicant must establish that the group is a cognizable social group and that the applicant’s membership in the group is “one central reason” for persecution.

The court then found that although Gonzalez-Posadas had established membership in a particular social group because of his sexual orientation, substantial evidence supported the determination that his sexual orientation was not one central reason for the persecution. Further, the court found that the determination by the BIA that Gonzalez-Posadas failed to establish he would be subject to future persecution was based on substantial evidence and should be upheld.

Thursday, January 8, 2015

Johnson v. AG (Not Precedential): Third Circuit finds that possession of marijuana with intent to deliver is not categorically an aggravated felony

Minikon Johnson v. Attorney General of the United States
Not Precedential
2014 WL 7172364

United States Court of Appeals for the Third Circuit, No. 12-3343
Filed: December 17, 2014 



Facts:

Minikon Wreth Johnson is a native and citizen of Liberia who was admitted to the United States in 2003 as a refugee. In 2008, Johnson was arrested for possession of marijuana and pled guilty to two counts of possession of marijuana with intent to deliver under 35 Pa. Stat. Ann. § 780-113(a)(30). In August 2010, after receiving a Notice to Appear based on an aggravated felony and controlled substance conviction, Johnson applied for asylum. The Immigration Judge (IJ) found that Johnson was removable based on the controlled substance conviction but found that the record of conviction (ROC) was insufficient to sustain the aggravated felony ground of removability. The IJ found that Johnson was not statutorily barred from discretionary relief and granted asylum.

On appeal, the BIA found Johnson was convicted of an aggravated felony and was statutorily barred from receiving asylum. The BIA vacated the IJ’s order and ordered Johnson removed.


Holding:
The Court vacated the BIA order, finding that it erred when concluding Johnson’s conviction was an aggravated felony. Holding that the government waived the issue of whether Johnson met the burden of proving he was not convicted of a particularly serious crime rendering him ineligible for asylum, the Court remanded to the BIA with instructions to reinstate the IJ ruling.

The Court found that 35 Pa. Stat. Ann. § 780-113(a)(30) was unclear on its face as to whether a conviction would qualify as an aggravated felony, and applied the modified categorical approach to determine whether Johnson’s conviction qualified as an aggravated felony. The court found that the ROC was insufficient to determine whether Johnson’s conviction qualified as an aggravated felony and the BIA had erred in finding otherwise.

The Court stated that removable non-citizens may be impeded from receiving asylum as the government may demonstrate the non-citizen is barred from receiving asylum due to a conviction for a particularly serious crime and the noncitizen must establish that he is eligible for some form of discretionary relief from removal

The Court found neither the government’s appeal to the BIA, nor its appellate briefs failed to preserve whether Johnson was barred from receiving asylum due to a conviction for a particularly serious crime and as such the government waived the argument.





United States v. Abbott (Precedential): Third Circuit holds that Pennsylvania’s possession with intent statute is divisible and requires use of modified categorical approach


United States of America v. Kevin Abbott
Precedential
748 F.3d 154
United States Court of Appeals for the Third Circuit
Filed: April 4, 2014


Facts:

Kevin Abbott was convicted of possessing a firearm in violation of 18 USC § 922(g). The sentencing court took into consideration Abbott’s three prior drug convictions and determined that they were “serious drug offenses” under the Armed Career Criminal Act (ACCA). The court therefore sentenced Abbott to the fifteen year minimum sentence required under the ACCA.

Abbott argued that his counsel was ineffective for failing to challenge the use of his prior conviction for possession with intent to deliver in violation of 35 Pa. Stat. Ann. § 780-113(a)(30) as an ACCA predicate offense.


Holding:


The Court affirmed the district court ruling, finding that 35 Pa. Stat. Ann. § 780-113(a)(30) is divisible and as such, the modified categorical approach was correctly used.

The Court found that the punishment for violating 35 Pa. Stat. Ann. § 780-113(a)(30) was dependent on the controlled substance. Using Supreme Court precedent Alleyne v. United States, 133 S.Ct. 2151, 2160 (2013), the court found that the statute was divisible because it relied on facts that increased or decreased the prescribed range of penalties and were therefore elements of the crime. Because 35 Pa. Stat. Ann. § 780-113(a)(30) can be violated by a number of different controlled substances, each of which can increase the penalty imposed, the statute includes alternative elements and is therefore divisible. Accordingly, the modified categorical approach was correctly used.

Monday, January 5, 2015

Comite’ de Apoyo a Los Trabajadores Agricolas v. Perez (Precedential): Third Circuit holds that use of Private Wage Surveys for H2-B Workers is Unlawful

Comite’ de Apoyo a Los Trabajadores Agricolas v. Perez
Precedential
2014 WL 6844633
United States Court of Appeals for the Third Circuit, No. 14-3557

Filed: December 5, 2014


Facts:

The H2-B visa program allows United States employers to obtain non-immigrant visas for temporary unskilled non-agricultural workers. H2-B workers are paid the prevailing wage for their field of work, determined by the Department of Labor (DOL). In consideration of employers’ needs and best interest of United States workers, the INA authorizes the issuance of H2-B visas only where the employer can demonstrate that the employment of H2-B visa recipients will not adversely affect United States workers.

This appeal concerns the 2009 Wage Guidance adopted by DOL to calculate the prevailing wage for H2-B workers. The 2009 Wage Guidance is a republished version of the 2005 Wage Guidance, which divided H2-B occupations into four skill and wage levels and allowed the prevailing wage to be determined using either private Employer Surveys or a Bureau of Labor Statistics Occupational Employment Statistics survey (OES).

In 2010, a district court vacated the 2009 Wage Guidance and ordered DOL to promulgate new guidelines. DOL promulgated the 2011 Wage Rule but postponed its implementation because it was subject to congressional appropriations riders. As a result, DOL continued to rely on the 2009 Wage Guidance.



Holding:

The court found that the issue was ripe for appeal because 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance adversely affect United States workers and held that 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance are arbitrary and capricious in violation of the APA, and ordered vacatur.

The court held that 20 C.F.R. § 655.10(f), authorizing the use of employer surveys, is both procedurally and substantively invalid because the OES survey is the most consistent,
efficient, and accurate means of determining the prevailing wage for the H2-B program and DOL failed to explain why it allowed the use of Employer Surveys in prevailing wage determinations when valid OES wage rates were available. 

The court held that the 2009 Wage Guidance violates the APA because it directly contradicts the prevailing wage definition in 20 C.F.R. § 655.10(b)(2), which rejects skill-level considerations.