Tuesday, July 15, 2014

Reyes Montes Mayorga v. AG (precedential): Under the Categorical Approach, Violation of Licensing Statute is not a CIMT

Reyes Montes Mayorga v. Attny. Gen’rl. of the United States
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.


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.

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.

Tuesday, May 27, 2014

Cadapan v Attorney General of the United States. (Precedential): 3rd Circuit Finds Conviction for Indecent Assault Under PA Statute Qualifies as an Aggravated Felony

Cadapan v. Attorney General of the United States
Third Circuit Court of Appeals, No. 13-1944
Opinion Filed, March 20, 2014


Cadapan is a native and citizen of the Philippines and a lawful permanent resident of the United States who was convicted under the Pennsylvania indecent assault statute for three offenses: indecent assault with a person under 13 years of age, indecent assault without consent, and corruption of minors. He was sentenced to two concurrent sentences of imprisonment and supervised probation for 36 months. Cadapan was transferred to DHS after his release from criminal custody and charged with removability on two counts: 1) as an alien who, after admission, was convicted of an aggravated felony, specifically sexual abuse of a minor, and 2) as an alien convicted of child abuse based on his conviction for corruption of minors under Pennsylvania law. Cadapan conceded removability on the second charge but as to the first one, argued that he is not an aggravated felon because conduct that meets the federal definition for sexual abuse of a minor is not necessary under the PA statute. The Immigration Judge rejected this argument and the Board of Immigration Appeals dismissed the petitioner’s subsequent appeal. In his petition, Cadapan also argued that he had never been “admitted” to the United States.


The Third Circuit found the petitioner removable as an aggravated felon have found that the BIA reasonably determined that the “indecent contact” referred to in the PA indecent assault statute categorically constituted molestation under state law, and by extension, sexual abuse of a minor under 101(a)(43)(A). Additionally, the court affirmed the IJ’s use of the Black’s Law dictionary definition of molestation and the BIA’s reference to 18 U.S.C. § 3509(a)(8) while rejecting the petitioner’s request to apply the definition of molestation found in Federal Rules of Evidence 414. Finally, the Third Circuit found that it lacked jurisdiction to hear petitioner’s claim that Cadapan was never “admitted” because he did not raise the argument earlier. The court denied Cadapan’s petition for review.


Monday, April 7, 2014

Parra-Rojas v. Attorney General of the United States (precedential): Mere Transportation of Unauthorized Immigrants Within the U.S. Does Not Establish Inadmissibility

Parra-Rojas v. Attorney General of the United States
2014 WL 1230001
Opinion Filed March 26, 2014


Parra-Rojas is a native and citizen of Columbia. He was admitted to the U.S. as an LPR in 1984. He is married to a USC and has a USC teenage son. On November 16, 2009, he was stopped at a checkpoint in New York. He admitted that he had picked up two unauthorized immigrants on the U.S. side of the Canadian border. He was to be paid $1,000 to drive them from the border to New York. As a result, he was convicted of "Bringing In and Harboring Certain Aliens" in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2 which allowed Parra-Rojas to be charged as a principal participant as opposed to an accessory. DHS charged him with removability for committing an aggravated felony.

He then applied for adjustment of status under 8 U.S.C. §1255(a). The government urged that his conviction rendered him inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i), which states that an immigrant, "who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the U.S. in violation of law is inadmissible” (emphasis added). Both the IJ and the BIA denied his application for adjustment of status.


The Third Circuit found his conviction inconclusive to determine inadmissibiliy and then looked to his actual conduct to determine whether he is inadmissible. The record contained no indication that he knew or had contact with the immigrants prior to transporting them after they had already crossed into the U.S. Nor is there any evidence that he provided any financial or other assistance to the aliens he transported prior to their entry into the country. Thus, the plain text of the statute 1182(a)(6)(E)(i) does not apply to his conduct.

Sunday, April 6, 2014

Galarza v. Szalczyk (Precedential): Immigration detainers issued under 8 C.F.R. § 287.7 cannot compel a state or local law enforcement to detain suspected immigrants subject to removal

Galarza v. Szalczyk
2014 WL 815127
Opinion Filed March 4, 2014


Galarza is a U.S. citizen who was arrested in Lehigh County, PA. Under Lehigh County policy, individuals suspected of being “aliens subject to deportation” are brought to the attention of Immigration and Customs Enforcement (“ICE”). After posting bail, Galarza was kept in custody by Lehigh County law enforcement under an immigration detainer. Three days after his arrest, Galarza was finally informed by the Lehigh County Prison Counselor that he was still in detention pursuant to the detainer. Despite Galarza’s protests that he was a U.S. citizen, no efforts were made to confirm his citizenship. Galarza filed two complaints. At issue here is Galarza’s compliant against Lehigh County for violations of his constitutional rights. The District Court dismissed his Fourth Amendment and procedural due process claims against Lehigh County on the grounds that detainers issued pursuant to 8 C.F.R. § 287.7 imposed mandatory obligations on state or local law enforcement agencies to follow such a detainer once received. Galarza appealed the dismissal of his complaint against Lehigh County.


The Third Circuit held that 8 C.R.F. § 287.7 does not require state or local law enforcement agencies to detain suspected immigrants subject to removal pending release to immigration officials. The Court reasoned immigration detainers have consistently been described as requests, not mandates. Finally, the Court stated that under a constitutional reading of 8 C.R.F. § 287.7, the regulation authorizes only requests to state and local law enforcement.  At most, the court reasoned that the regulation requires that detention pursuant to a detainer cannot exceed 48 hours.  The regulation does not deprive state and local law enforcement of any discretion in choosing whether or not to detain the immigrant.

Tuesday, March 25, 2014

Bautista v. Attorney General of the United States (Precedential): Federal Arson Staute's Jurisdictional Requirement is Substantive in Nature for Purposes of the Categorical Approach


Ray Lahoud, the attorney of record for Mr. Bautista, was gracious enough to write a guest blog post discussing his experience representing Mr. Bautista and argument before the Third Circuit.  Mr. Lahoud's post can be found on the Viewpoints page or by clicking here.

Bautista v. Attorney General of the United States
2014 WL 783019
Opinion Filed February 28, 2014


Bautista is a native of the Dominican Republic.  Bautista was convicted of two crimes: uttering a forged instrument, a New Jersey crime, and attempted arson in the third degree, a New York crime.  While returning from a trip to the Dominican Republic, Bautista was stopped by customs and charged with being inadmissible for having committed a CIMT.  ICE initiated removal proceedings under the the theory that Bautista had committed a CIMT.  Bautista applied for cancellation of removal; however, ICE claimed that Bautista's arson conviction was an aggravated felony rendering him ineligible for cancellation of removal.  The IJ found in favor of ICE.  Only the cancellation of removal issue was appealed to the BIA, and the BIA agreed with ICE.


The Third Circuit held that the statute of conviction did not contain a jurisdictional element of the corresponding statute and, therefore under the categorical approach, Mr. Bautista was not an aggravated felon.  Both the federal (18 U.S.C. § 844(i)) and New York arson statutes contain three of the same elements: 1) Damaging a vehicle or building, 2) By using fire or explosives, and 3) Intentionality.  The federal statute, however, requires that the object of the arson be used in interstate commerce.  The Third Circuit found ICE's argument that the interstate commerce element was jurisdictional in nature rather than substantive to be unconvincing.  This is because in Jones v. United States, 529 U.S. 848 (2000), the Supreme Court found that where a molotov cocktail  thrown into a private home, there was not a sufficient nexus with interstate commerce to satisfy the requirements of the federal arson statute.  The Third Circuit interpreted Jones to mean that the jurisdictional element in the federal arson statute was both jurisdictional and substantive.

Tuesday, February 11, 2014

Eid v. Thompson (Precedential): The Bar of § 1154(c) Does Not Require Specific Intent to Break Immigration Laws

Eid v. Thompson
740 F.3d 118
Opinion Filed January 10, 2014


Eid is a Lebanese national who arrived in the United States on an H1-B visa. In October of 1999, he married Pickett, his employer who sponsored his H1-B visa. They lived together only as roommates. Pickett filed an I-130 to have Eid legally established as her spouse, and Eid filed an I-485 to adjust his status to an LPR. The I-130 was granted in 1999. In 2001, Eid and Pickett were questioned by USCIS who was suspicious of the legitimacy of the marriage. Subsequently, both the I-485 and I-130 were withdrawn by Eid and Pickett. Both Eid and Pickett stated to USCIS that they never had any intention of living together as husband and wife. Eid also stated that he had the naive belief that legal marriage was all that was required to become an LPR. Eid and Pickett's marriage was annulled. Removal proceedings were commenced against Eid in 2001, and in 2003, Eid married Packard. This marriage was deemed to be genuine by USCIS after Eid filed another 1-130. USCIS denied the I-130 by interpreting § 1154(c) as statutorily barring petitions of immigrants who entered into marriage for the sole purpose of evading immigration laws. Eid argued that the statute required specific intent to break immigration laws while USCIS argued that entering into marriage for the sole purpose of receiving an immigration benefit triggered the bar.


The Third Circuit held that Eid's prior marriage for the sole purpose of obtaining the immigration benefit of permanent residency rendered him ineligible for adjustment of status regardless of the second bona fide marriage. The Third Circuit relied upon the Chevron doctrine to dispense with Eid's argument that § 1154(c) required specific intent to violate immigration laws. The Third Circuit found that the BIA's interpretation of § 1154(c) was a reasonable interpretation. Secondly, the Third Circuit found that the withdrawal of the I-130 and I-485 were not timely retractions because an immigration benefit had already been granted in the form of Eid's classification as Pickett's legal spouse.

Tuesday, January 28, 2014

Orabi v. Attorney General of the United States (Precedential): A Conviction is not Sufficiently Final Until Direct Appellate Review is Exhausted or Waived

Orabi v. Attorney General of the United States
738 F.3d 535
Opinion Filed January 2, 2014


Orabi, an Egyptian citizen, was granted LPR status in 1996. In 2010, Orabi was convicted in New York for an aggravated felony and was sentenced to 70 months. In 2011, the District Court recalculated the sentence. In December 2011, Orabi appealed the sentence length to the Second Circuit. In February 2012, DHS initiated removal proceedings charging removability for an aggravated felony. Orabi notified DHS and the Immigration Court of his pending appeal, and DHS moved to withdraw the removal charge. Appearing pro se before the Immigration Judge (“IJ”) Orabi agreed to provide a letter withdrawing his appeal. Thereafter, DHS moved to reinstate the removal charge and the IJ sustained it. The record of the Second Circuit reveals no such letter or motion to withdraw was ever filed.

Arguments on Appeal: 

Before the BIA, Orabi argued his conviction was not final and therefore the IJ’s removal order was void. Nevertheless, the BIA held that the conviction remained final for immigration purposes. Before the Third Circuit the government argued: 1) the record supports the Agency’s finding that Orabi withdrew his appeal to the Second Circuit, 2) Orabi’s conviction was final regardless of whether his appeal was withdrawn because his appeal only challenged his sentence and not the finding of his guilt, and 3) the Third Circuit should adopt the position of its sister circuits and the BIA which have held that a conviction is final for immigration purposes regardless of whether a direct appeal is pending.


The court rejected the first and second arguments as the record of the Second Circuit does not reflect that a withdrawal of the appeal had been filed and because the BIA did not base its decision on either of these grounds. Rejecting the third argument, the court held that the pre-IIRIRA case of In re Ozkok, 19 I. & N. Dec. 546 (BIA 1988) (holding “a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived”) is still alive in the Third Circuit and finds that Congress, in passing IIRIRA, did not intend to eliminate the finality rule for direct appeals. Instead, the court determined that the IIRIRA amendment restricts the court’s jurisdiction to cases of direct appeal as distinguished from “deferred adjudications” and collateral challenges.