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Johnson v. AG (Not Precedential): Third Circuit finds that possession of marijuana with intent to deliver is not categorically an aggravated felony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Not Precedential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


 

 

Monday, September 22, 2014

Mahn v. AG (Precedential): REAP not a CIMT

Emmanuel Mahn, Petitioner, v. Attorney General of the United States of America, Respondent.
Precedential

United States Court of Appeals, Third Circuit, No. 12-4377
Decided: September 17, 2014

Facts:


Emmanuel Mahn is a citizen of Liberia. In 2000, he entered the United States as a refugee. Nearly five years later, he adjusted his status to lawful permanent resident. In 2007, Mahn pled guilty to theft by deception and forgery, arising from the same criminal scheme. The following year, Mahn pled guilty to recklessly endangering another person. According to Mahn’s testimony during his removal proceedings, Mahn lost control of his car and crashed into a garage and laundry room of a house while his sister was in the vehicle.

The Department of Homeland Security issued Mahn a Notice to Appear, charging that he was removable under 8 U.S.C. §1227(a)(2)(A)(ii) for having “been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.” Mahn filed a motion to terminate his removal proceedings, asserting that his reckless endangerment conviction did not qualify as a CIMT.

The Immigration Judge denied Mahn’s motion to terminate. Citing Knapik v. Ashcroft, the IJ determined that reckless endangerment qualifies as a CIMT. The IJ also held that Mahn’s convictions for forgery and theft by deception constituted CIMTs. On appeal to the Board of Immigration Appeals, Mahn argued that his reckless endangerment conviction was not a CIMT. The BIA affirmed the IJ’s ruling in an unpublished, non-precedential decision rendered by a single Board member. The BIA dismissed the appeal and Mahn subsequently filed a petition for review.


Holding:

The Third Circuit applied the categorical approach to assess whether a reckless endangerment conviction qualifies as a CIMT. The court reasoned that moral turpitude does not inhere in all violations of §2705. The court stated that the New York reckless endangerment statute at issue in Knapik is not analogous to Mahn’s statute of conviction. The court reasoned “New York’s reckless endangerment statute, Mahn’s statute of conviction does not contain the aggravating factors of depraved indifference to human life and grave risk of death to another person. Moreover, unlike the New York Statute, which requires reckless conduct that creates a grave risk of endangerment, §2705 only requires conduct that may put a person in danger.”

The court held that because the least culpable conduct punishable under §does not implicate moral turpitude, Mahn’s reckless endangerment conviction does not qualify as a CIMT. The court further held that unpublished sign-member BIA decisions are not entitled to Chevron deference. Mahn’s petition for review was granted and the BIA’s order of removal was vacated. 

Hernandez-Cruz v. AG (Precedential): Endangering Welfare of a Child Not a CIMT

Luis Alberto Hernandez-Cruz, Petitioner v. Attorney General of the United States of America, Respondent.
Precedential
United States Court of Appeals, Third Circuit, No. 13-3288
Decided: September 4, 2014

Facts:

Hernandez-Cruz, a citizen of Mexico, entered the United States without inspection in 1998. Eleven years later, he pled guilty to simple assault, in violation of 18 Pa. Cons.Stat. Ann. §2701(a)(1), and endangering the welfare of a child, in violation of 18 Pa. Cons.Stat. Ann §4304(a)(1).


After Hernandez-Cruz’s guilty plea, the Department of Homeland Security issued a Notice to Appear, charging that he was removable as a noncitizen present in the United States without being admitted or paroled. DHS later filed additional charges, alleging that Hernandez-Cruz was removable as an alien convicted of a crime involving moral turpitude (CIMT). These additional charges were based on his convictions for simple assault and child endangerment. Hernandez-Cruz conceded removability as an alien present in the United States without being admitted or paroled, but denied removability as an alien convicted of a CIMT.

The Immigration Judge concluded that Hernandez-Cruz was removable as a noncitizen present in the United States without being admitted or paroled. The IJ also held that Hernandez-Cruz was removable as a noncitizen convicted of a CIMT. The IJ determined that Hernandez-Cruz’s Pennsylvania conviction for simple assault did not include an aggravating factor, but held that his conviction for child endangerment constituted a CIMT. The BIA affirmed. Hernandez-Cruz filed a petition for review.

Holding:

The Third Circuit applied the categorical approach to determine whether a conviction constitutes a CIMT. The court held that the BIA unreasonably concluded that endangering the welfare of a child was a CIMT. The court concluded that Pennsylvania’s child endangerment statute prohibits a broad range of conduct and offered a few examples of conduct that might be punishable under the PA statute (i.e., leaving a child alone in the car for five minutes) but that would not rise to the level of “inherently base, vile or depraved.” The court reasoned that since the least culpable conduct punishable under §4304(a)(1) is not morally turpitudinous, Hernandez-Cruz’s child endangerment conviction did not constitute a CIMT. The court concluded that “The BIA went ‘beyond the bounds of reasonableness in concluding that his conviction was a CIMT. Hernandez-Cruz’s petition for review was granted and the BIA’s CIMT determination was reversed.

Additional Note: The IJ noted that Hernandez-Cruz had successfully established that his removal would result in extreme and unusual hardship to his children, and clarified that but for his CIMT, he would have been statutorily eligible for the relief of cancellation of removal, and, as a matter of discretion.

Tuesday, September 9, 2014

Damian Andrew Syblis v. AG (Precedential): Inconclusive Record Not Enough to Satisfy Noncitizen's Burden of Demonstrating Eligibility for Relief From Removal

Damian Andrew Syblis v. Attorney General of the United States
Precedential
US Ct of Appeals for the 3rd Cir., No.11-4478
August 18, 2014

Facts:

Syblis, a native and citizen of Jamaica, entered the United States as a nonimmigrant visitor, where he was authorized to remain for no longer than three months. Despite this limitation, he remained in the US beyond three months without seeking additional authorization. During his stay, Syblis was charged with possession of marijuana. The charges were later amended, for unknown reasons, to possession of drug paraphernalia, in violation of Va. Code Ann.§54.1-3466, of which he was convicted. In an unrelated matter, Syblis was also convicted of possession of marijuana, in violation of Va. Code Ann. §18.2-250.1.

Thereafter, DHS initiated removal proceedings against Syblis, charging him with removability for overstaying his visa authorization and for his paraphernalia and marijuana convictions. Syblis conceded removability on the grounds that he had overstayed his visa; however, he contested his removability on the grounds that he was convicted of an offense relating to a controlled substance. The Third Circuit noted that meeting this burden requi4red Syblis to demonstarate: (1) that VA. Code Ann. §54.1-3466 is not a law relating to a controlled substance: or (2) the controlled substance involved in his conviction was not defined by federal law.

Holding:

The Third Circuit held that Syblis failed to meet his statutorily prescribed burden of demonstrating eligibility for relief from removal. The Court determined that Va. Code Ann.§54.1-3466 was sufficiently connected to and was plainly intended to criminalize behavior involving the possession or distribution of various controlled substances.
Furthermore, in a matter of first impression, the court decided to align their case law with that of the Fourth, Ninth, Seventh, and Tenth Circuits and held that an inconclusive record of conviction did not satisfy a noncitizen's burden of demonstrating eligibility for relief from removal.

Syblis had only demonstrated that the record was inconclusive - that his conviction for paraphernalia possession may or may not have been related to a federally controlled substance. The court concluded that this was insufficient to meet his burden of proving eligibility for relief. Therefore, the court denied Syblis' petition for review.

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
Precedential 
US Ct of Appeals for the 3rd Cir., No. 13-2011 
June 27, 2014 

Facts:

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.

Holding(s): 


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.