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 The BIA affirmed the IJ’s ruling in an unpublished, non-precedential decision rendered by a single Board member.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.



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
Precedential
Third Circuit Court of Appeals, No. 13-1944
Opinion Filed, March 20, 2014

Facts: 

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.

Holding:

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
Precedential
2014 WL 1230001
Opinion Filed March 26, 2014


Facts: 


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.


Holding:


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
Precedential
2014 WL 815127
Opinion Filed March 4, 2014

Facts:

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.

Holding:

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.