De la Rosa v. U.S. Attorney General, No. 08-13861 (11th Cir. Aug. 20, 2009) 

Dubina, Birch, and Wilson (per curiam) 

In a matter of first impression with the Eleventh Circuit, the Court adopted the categorical approach for determining whether a criminal conviction qualifies as a CIMT for purposes of establishing eligibility for a § 212(c) waiver.  The decision puts the Court in line with the First, Third, Fifth, Sixth, Seventh and Eighth Circuits, and explicitly rejects the Second Circuit’s offense-based approach. 

Jose Erasmo De la Rosa, a national of the Dominican Republic, was found deportable for having been convicted of committing a lewd act upon a child under the age of sixteen in Florida—an aggravated felony.  De la Rosa conceded deportability and sought a § 212(c) waiver, arguing that his conviction constituted a CIMT.  The BIA affirmed the IJ’s determination that De la Rosa’s conviction made him statutorily ineligible for a waiver. 

Before declaring its decision, the Court traced the history of § 212(c) and surveyed how its sister circuits have approached § 212(c) relief.  Particularly important to the Court’s analysis was the BIA’s decision in In re Blake, 23 I. & N. Dec. 722 (BIA 2005), in which the BIA applied the statutory counterpart test and concluded that an alien deportable based on an aggravated felony conviction for sexual abuse of a minor was ineligible for a § 212(c) waiver.  The Second Circuit has rejected this categorical approach, in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), in favor of an offense-based approach that turns instead on the particular criminal offense rather than any categorization of deportation grounds.  The Court also noted that the Ninth Circuit has rejected both the categorical and offense-based approaches, instead finding that Congress conceivably had a legitimate reason (i.e. encouraging self-deportation) for denying § 212(c) relief to deportable aliens who have not left the country.  Having examined its options, the Eleventh Circuit was ready to weigh in on the three-way circuit split. 

Ultimately, the Court accorded Chevron deference to the BIA’s decision in In re Blake and sided with the majority of its sister circuits in adopting the categorical approach.  The Court reasoned that its own precedent had parted ways with both the Second Circuit’s offense-based approach and the Ninth Circuit’s abandonment of the statutory counterpart test.  Instead, the Court ruled, the categorical approach best preserved the congruity between an alien in deportation proceedings and an alien in exclusion proceedings, thereby implicating the equal protection concerns that motivated the courts to provide § 212(c) relief to deportable aliens in the first place.  Loathe to further “the judicial extension of a statute absent sufficient constitutional justification,” the Court deferred instead to the BIA’s determination that sexual abuse of a minor does not have a statutory counterpart in the CIMT provision in the grounds of inadmissibility.

Read opinion here.

Tang v. U.S. Attorney General, No. 08-12212 (11th Cir. Aug. 11, 2009) 

WILSON, Kravitch, and Anderson  

Lin Lin Tang, a native of China, applied for asylum, withholding of removal, and protection under CAT due to persecution on account of her religious beliefs.  She petitioned the Court for review of the BIA’s order dismissing her appeal of the IJ’s denial of her application.  The petition was denied in part because the evidence in support of her due process claim was untimely filed, but granted in part where certain adverse credibility findings by the IJ and BIA were factually incorrect.  The Court vacated and remanded for further proceedings. 

Kazemzadeh v. U.S. Attorney General, No. 08-12857 (11th Cir. Aug. 6, 2009) 

Marcus, PRYOR, and Edenfield 

Hani Kazemzadeh is an Iranian who converted from Islam to Christianity while in the U.S.  He applied for asylum, withholding of removal, and CAT because he feared persecution upon returning to Iran, where apostasy is punishable by death.  

In Iran, Kazemzadeh had been actively involved in student demonstrations in favor of freedom of religious expression.  At one point, he was arrested and detained by the authorities and allegedly interrogated, beaten, tortured and denied access to his family and an attorney.  He was summoned by the disciplinary committee of his university and stopped attending for fear of being arrested once more.  After being expelled from the university, Kazemzadeh traveled to Germany to apply for a U.S. visa.  He returned to Iran, but soon thereafter received a subpoena to appear in court.  Hoping that things would cool down, he traveled to the U.S. and was convicted in absentia of being an agitator against Iran.  He was sentenced to six years in prison. 

U.S. v. Gari, No. 08-10014 (11th Cir. June 30, 2009) 

Black, COX, and Tjoflat 

Defendants Gari and Rodriguez were convicted of thirty-four counts of alien smuggling for crewing a go-fast boat carrying Cuban nationals towards North Key Largo, Florida. 

The Court considered whether the Defendant's 6th Amendment confrontation rights were violated by the erroneous admission of I-213 (Record of Deportable/Inadmissible Alien) forms completed by CBP agents.  Also at issue were Defendants’ motions for acquittal on each count of the indictment, the admission of testimony by an ICE agent who previously encountered Gari under similar conditions, and Rodriguez’s request for a separate trial. Defendants were convicted of 34 counts of alien smuggling, and the Court affirmed the Defendant's convictions on all but one count and remanded for resentencing. 

After arresting Gari and Rodriguez, CBP agents interviewed the Cuban nationals they had tracked from the boat and completed I-213 forms for each of them.  Form I-213 is routinely completed by CBP agents whenever they apprehend someone and contains details about the apprehension, along with information about the results of any immigration records check.  Defendants challenged the I-213 forms as testimonial hearsay that could not be cross-examined.  The Government argued for admission of the forms based on the public records exception to the hearsay rule.  The Court held that the district court committed no reversible error in admitting the I-213 forms because any error in their admission was harmless beyond a reasonable doubt.  The Court reasoned that the I-213 forms contained only statements already testified to in court by law enforcement agents.  The Court thereby avoided a decision about whether or not the forms included testimonial hearsay. 

As to the other issues on appeal, the Court found the evidence sufficient to convict Gari and Rodriguez on all but one count.  Because the defense submitted proof of prior authorization for parole for one of the thirty-four migrants, the Court vacated Gari’s and Rodriguez’s sentence and remanded for resentencing.  The Court also found that the ICE agent’s testimony of Gari’s prior bad acts was properly admitted and that the district court’s denial of Rodriguez’s motion for severance of trials was not an abuse of discretion since the judge had provided a limiting instruction instead.

Read opinion here.