Nguyen v. Holder (6th Cir. 7/2/09)

MERRITT, Kethledge, Griffin (concurring)

The 6th Cir found unlawful use of a motor vehicle NOT to be a crime of violence.  Contra United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999) (unauthorized use of vehicle is CoV); accord United States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007) (unlawful use of vehicle not CoV). Because the statute does not require force against anyone or against the car, not CoV.

The government argues that the crime carries a “substantial risk” that the vehicle might be damaged or vandalized during the taking. While we agree that there is some chance that violent force may be used against an automobile to gain entry or that the car might be damaged or vandalized during the theft, we cannot see that the risk is “substantial.” * * * The proper inquiry is one that contemplates the risk associated with the proscribed conduct in the mainstream of prosecutions brought under the statute. See James v. United States, 550 U.S. 192 (2007)

Griffin, concurring - disagrees with majority's discussion of elements and lenity, but agrees that "grand theft does not involve, in its ordinary or natural sense, a 'substantial risk' that physical force may be used against property."

Read opinion here: 

Serrato-Soto v. Holder (6th Cir. 5/28/09)

SUHRHEINRICH, Batchelder, Sutton

Petitioner was convicted in Mississippi state court of using a fraudulent SSN to work. He asked the IJ to continue his case to permit approval of the Labor Cert; IJ denied. He then asked for VD - but wasn't willing to waive appeal of the I-140 issue, so he needed to show GMC for 5 years.

Held: fraudulent use of SSN is turpitudinous.  The 6th cir cited the cases finding that fraud has traditionally been considered turpitudinous.  Matter of Kochlani, 24 I. & N. Dec. 128, 130 (B.I.A. 2007) (“crimes that have a specific intent to defraud as an element have always been found to involve moral turpitude”); Jordan v. De George, 341 U.S. 223, 229 (1951) (“fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude”); Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir. 2002) (“In the wake of Jordan, the courts of appeals have interpreted ‘moral turpitude’ as including a wide variety of crimes that involve some fraud or deceit”). And because this case involves "use," the Board's holding in Matter of Serna, 20 I. & N. Dec. 579, 585-86 (B.I.A. 1992) (mere possession of illegal documents, without intent to use said documents fraudulently or unlawfully, is not crime involving moral turpitude) is inapplicable.

The CtApp refused to follow the 9th cir's decision in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), which basically exempted the false use of SSN's from the usual CIMT analysis.  Agreeing with the 5th cir, see Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007), the 6th cir found Beltran-Tirado distinguishable and refused to disturb its caselaw under which crimes involving dishonesty or fraud are per se turpitudinous.

[CR: But in the end, how could any undocumented person survive without some intentional fraud?  Either one uses a false documents to do legitimate work, or one works in the "unofficial" market (where taxes are rarely paid, ergo tax fraud), or one works for an employer who engages in willful fraud to hire you (in which case you're an accessory). This holding follows from case law, but it seems to ignore the position into which undocumented persons are placed by the laws which criminalize working in the US without a work permit. The only thing preventing this analysis from having further and harsher effect is the use of prosecutorial discretion, whereby prosecutors are usually reasonable enough not to charge this sort of conduct criminally - but in some jurisdictions, perhaps Mississippi, it might seem reasonable to harshly criminalize being undocumented.]

Read decision here: 

Madrigal v. Holder (6th Cir. 7/9/09)

DAUGHTREY Rogers Kethledge (concurring)

Ms. Madrigal filed for adjustment, was served the NTA in 2004 and no hearing date till 2006 - she said she didn't get it, and sought to rescind - the IJ refused, the BIA denied a stay, and she was removed.  The BIA then found that her departure from the US was a withdrawal of her motion.

The Sixth Cir rejected the Govt's attempts to argue that the Board's order (finding a withdrawal) wasn't a removal order, and also rejected their arguments that she hadn't exhausted administrative remedies.  It then went on to analyze the substance of the BIA decision.

Madrigal argued that there was an inconsistency between 8 CFR 1003.4 (departure = withdrawal of motion) with other regulations permitting rescission "at any time" for lack of notice.  The 6th cir did not reach that issue.  Instead, interpreting Long v. Gonzales, 420 F.3d 516, 520 (5th Cir. 2005), it treated the "departure" prong of 1003.4 as equivalent to a waiver.  Because Ms. Madrigal didn't voluntarily leave (and did everything she could to stay), it found that bar simply inapplicable:

[P]rinciples of fundamental fairness would be violated were we to find, in every case, that section 1003.4 is applicable to pending administrative appeals following the departure of removable aliens regardless of the circumstances of their removal. * * * To allow the government to cut off Madrigal’s statutory right to appeal an adverse decision, in this manner, simply by removing her before a stay can be issued or a ruling on the merits can be obtained, strikes us as a perversion of the administrative process. We therefore hold that the withdrawal provision of section 1003.4 is inapplicable in this situation.

Judge Kethledge, concurring, noted that there was no showing that “personal service [wa]s not practicable,” 8 U.S.C. § 1229(a)(1); 8 C.F.R. § 1003.13 (emphasis added) (a precondition to the use of regular mail).  He further noted that 8 U.S.C. § 1229(c) provides that “[s]ervice by mail [of a notice to appear] shall be sufficient if there is proof of attempted delivery to the last address provided by the alien[.]” (the record contained no "proof" of attempted delivery to the last address).

Read opinion here: 

U.S. v. Jang (5th Cir. 6/30/09)

HAYNES, Davis, Owen

Jang was ordered removed to South Korea in 2003.  After failing to complete a visa application, the government indicted him under 8 U.S.C. § 1253(a)(1)(B), which criminalizes willful failure or refusal “to make timely application in good faith for travel or other documents necessary to the alien’s departure.”  Jang was convicted and sentenced to 33 months imprisonment and 2 years supervised release.  His supervision carried the additional requirement that he comply with all immigration laws, that he sign the INS Form I-229, and that he complete a South Korean visa application.

Jang was transferred to ICE custody in June 2007, but again refused to sign the I-229 or fill out the visa application.  His probation officer then filed a Petition for Offender Under Supervision with the District Court.  Appearing before the District Court, Jang finally agreed to complete all the necessary documents for his removal. However, South Korea requires that its citizens repatriate on a voluntary basis.  During his interview with the consulate, Jang candidly told the consulate that he hadn’t filled out his visa application voluntarily, and that he didn’t really wish to return to South Korea.  After the consulate refused to issue a travel document, the Government sought once again to revoke his supervision.  The District Court sentenced Jang to another 24 months imprisonment.

While before the District Court, Jang failed to make objections to the actual conviction, only his sentence. On appeal, Jang contended that plain error review was inapplicable, since both the Government’s Petition and the District Court’s oral decision did not cite a specific immigration statute that he’d violated.  However, an ICE agent had mentioned § 1253 in his testimony before the District Court, and this was good enough for the Fifth Circuit to maintain plain error review.  Further hurting Jang, the Government is only held to a preponderance standard in proceedings to revoke supervision.

Jang raised three specific arguments on appeal, two of which the Fifth Circuit inexplicably failed to address.  First, he argued that the South Korea’s voluntary repatriation requirement was an international immigration procedure, and thus outside the scope of his supervision requirements.  Second, he pointed out that the District Court was effectively requiring him to lie to the South Korean consulate.  Third, he challenged the sufficiency of the evidence.  The Fifth Circuit merely concluded it was reasonable for the District Court to find that Jang’s comments to the consulate were designed to prevent his departure, thus violating 8 U.S.C. § 1253(a)(1)(C). Judgment affirmed.

Comments

• The dystopian overtone of requiring someone to lie in order to maintain his freedom does not appear to have struck the District Court or the Fifth Circuit.  Then again, perhaps this did occur to the District Court, which was punishing Jang into subjectively desiring to leave the country.
• Criminally prosecuting this case seems excessively cruel.  The Government could have easily achieved the same objective by leaving Jang in ICE custody, and refusing to release him on an Order of Supervision.  Jang might have soon changed his mind and expressed a desire to leave to the South Korean consulate.  But now, regardless of whether Jang changes his mind, he is forced to sit in prison for another two years.  Prosecutorial discretion appears to be a dead art in the Northern District of Texas.
• It seems quite possible that Jang was unaware of South Korea's indiosyncratic requirement for repatriation. Reasonable mistake of fact defense, anyone?

Read the Opinion Here

Chibwe v. Holder, No. 08-3407 (8th Cir. July 2, 2009)

Murphy, ARNOLD, and Gruender

The 8th Circuit denied a wife and husband’s petition for review of the denial of their claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). 

The Court did not have jurisdiction to review the BIA’s finding that the asylum applications were not timely filed 8 U.S.C. § 1158(a)(3).  The Court rejected the petitioners’ constitutional claims finding them to be “attempts to couch challenges to the BIA’s exercise of its discretion in constitutional terms.”

The Court’s review of the denial of withholding is under a substantial evidence standard  The Court could not find that “any reasonable adjudicator would be compelled to conclude” that the petitioners faced a threat based on one of the protected grounds.  The Petitioner wife, Ms. Chibwe, a citizen of Zambia, had had an “abusive extramarital affair” with a powerful man in Zambia before she ended the affair to marry the Petitioner husband, Mr. Kamphambale, a citizen of Malawi.  The couple feared that the man in Zambia would “exact revenge” should they be forced to return to Zambia.  The BIA deemed the threat as related to “personal matter” rather than on account of one of the protected grounds.

Read the opinion here…

Arias Chupina v. Holder (2d Cir. 6/25/09)

Petitioner applied for asylum, WH, and CAT but just missed the one year deadline because his non-attorney delayed the submission of his applications. The IJ found that the non-attorney representative's advice did not constitute a claim of IAC which excused him from his untimely filing. The IJ also denied WH and CAT, finding that Petitioner was subject to the persecutor bar.  The BIA agreed with the IJ that Petitioner could not raise an IAC claim b/c he had not satisfied the Lozada procedural prerequisites (e.g, filing a complaint). However, the BIA remanded to the IJ for a new determination on WH and CAT, finding that the IJ had erred in applying the persecutor bar to Persecutor. Petitioner asked the BIA to reconsider - the BIA denied the motion. Petitioner appealed both BIA decisions to the 2d Circuit.

The 2d Circuit dismissed Petitioner's two PFRs, finding no jurisdiction since Petitioner's case is still pending before the IJ for consideration of WH and CAT and thus he does not have a final order of removal. The court rejected Petitioner's argument that review of his petitions is proper because there may not be a "final order of removal" upon the agency's adjudication of his WH and CAT applications.  Specifically, Petitioner argued that while a withholding grant requires an entry of an underlying order of removal, CAT does not require this. Thus, if he were granted CAT, there would still be no order of removal in his case, and thus no final order upon which the court could exercise jurisdiction.

The 2d Circuit found that a CAT grant necessarily requires the IJ to determine whether someone is removable from the U.S., and therefore that a CAT grant would establish an order of removal that would eventually become final. The court also noted that Petitioner - once obtaining a final order below - need not appeal the grant or denial of WH or CAT to the BIA in order to preserve his exhausted claim that his asylum denial was in error. 

[HM note: In my cases where the IJ has granted deferral under CAT, I recall that he has also simultaneously entered a removal order. Is this not the case elsewhere?]

Gvt's motion to dismiss granted.

Read opinion here.

Atty for Petitioner: Anne Pilsbury (Heather Yvonne Axford, on the brief), Central American Legal Assistance, Brooklyn, NY.

NIJC, CLINIC, NWIRP, NIF, and the BC law clinic filed a Petition for Rulemaking today, asking EOIR to begin rulemaking to permit Immigration Judges to appoint counsel in certain circumstances.  The argument we make is that in some hearings, for removal proceedings to be fundamentally fair, counsel should be appointed.  Assuming arguendo that there is no Fifth Amendment right to counsel, across the board, the case law would support a more limited right to counsel in certain types of cases.  The Petition for Rulemaking does not address payment where counsel is appointed, though certainly we do believe that some compensation would be appropriate.  But the first step as we see it is to protect the rights of pro se individuals who aren't receiving a fair hearing.  The Petition suggests the following regulatory language:

(c) Counsel may be appointed for an indigent alien only where the Immigration Judge concludes that appointment of counsel is necessary in order for the proceedings to be fundamentally fair. In making this determining, an Immigration Judge shall consider:

(1) The alien’s ability to read, write, and comprehend the English language;

(2) The complexity of the relevant statutory and regulatory provisions;

(3) The complexity of the application of the relevant statutory and regulatory provisions to the facts of the case;

(4) The nature of the claims being advanced in the proceedings;

(5) Whether the respondent is detained;

(6) The nature of the due process interest at stake;

(7) An alien’s ability to conduct proceedings on his or her own behalf;

(8) Health or any other exigent circumstances that necessitate an efficient proceeding;

(9) Any other factors that warrant the appointment of counsel.

Where a respondent makes a facially plausible claim to U.S. citizenship, and does not obtain private counsel or free legal counsel, the Immigration Judge shall appoint counsel to represent the respondent unless the respondent indicates his desire to proceed forward without counsel.

A pdf version of the petition can be downloaded here:

Thanks are due to many individuals for their assistance in reviewing and improving this Petition, and to Jones Day for its pro bono assistance. 

Lybesha v. Holder, No. 08-2025 (8th Cir. June 26, 2009)

Wollman, Gibson, and MURPHY

Mr. Lybesha claimed (his wife and child were included in his applications) he had suffered persecution in 1996 and 1997 at the hands of the Socialist Party for his membership in the Democratic Party of Albania, including being beaten, stabbed and having his home and vehicle bombed.  The court did not have jurisdiction to review the determination that he failed to file his asylum application on time.  8 U.S.C. § 1158(a)(3).  Moreover, the IJ found that Mr. Lybesha was not credible.  The Court found that inconsistencies in the record “involve key issues of petitioners’ claims for relief.”  Finally, the Court found that even if Mr. Lybesha had been found credible, the Court approved of the IJ and BIA’s finding that because the Democratic Party now controls the Presidency, Prime Minister Ship, and Parliament, Mr. Lybesha would no longer have a well-founded fear of persecution. 

Read the opinion here…

Salguero-Fuentes v. Holder, No. 08-2320 (8th Cir. June 25, 2009)

Wollman, BRIGHT, and Colloton

8 U.S.C. § 1254a(b)(5)(B) is in the subsection of the Immigration and Nationality Act relating to Temporary Protected Status and states:

“The Attorney General shall establish an administrative procedure for the review of the denial of benefits to aliens under this subsection.  Such procedure shall not prevent an alien from asserting protection under this section in removal proceedings if the alien demonstrates that the alien is a national of a state designated under paragraph (1).”

Ms. Salguero is a native and citizen of El Salvador, which the Attorney General designated for Temporary Protected Status (“TPS”) in 2001 following major earthquakes in the country.  Salguero filed an application for protection under TPS in 2003, which DHS denied for lack of sufficient evidence.  She filed an appeal to DHS’s Administrative Appeals Unit (“AAU”) but the AAU denied her appeal because the she had not timely filed the appeal.  DHS subsequently placed Ms. Salguero in removal proceedings.

The IJ ruled that the immigration court did not have jurisdiction to evaluate Ms. Salguero’s eligibility for TPS because she had not exhausted administrative remedies, ie she had not “perfected” her AAU appeal.  The BIA affirmed.

Ms. Salguero argued that the language of 8 U.S.C. § 1254a(b)(5)(B) is unambiguous in permitting “her to assert TPS protection during removal proceedings, despite her failure to perfect an AAU appeal.”  She also cited to In re Barrientos, 24 I&N Dec. 100 (BIA 2007) for the proposition that TPS eligibility can be raised in removal even if the respondent has failed to exhaust administrative remedies.  The Court disagreed that Barrientos answered the question in Salguero’s case; the Court distinguished Barrientos finding that Mr. Barrientos had exhausted administrative remedies.  The Court remanded for further proceedings because “neither court [IJ nor BIA] fully address why, under the statutory framework, the failure to perfect an AAU appeal bars an alien from raising TPS eligibility at the removal proceedings.”

Read the opinion here…

Mahmood v. Holder (2d Cir. 6/25/09)

CALABRESI, Winter, Walker

The 2d Circuit amended and republished its decision in this case. The only change the court appears to have made was to substitute the word "Agency" in place of "BIA." According to a footnote, the gvt requested that the court amend its opinion, asserting that the BIA lacked authority to open the petitioner's proceedings sua sponte as the BIA had not previously rendered a decision in the case. The gvt argued that it was up to the IJ to decide whether to reopen sua sponte.  Rather than addressing this issue, which had not been briefed, the court decided it was best to simply refer to the "Agency" rather than the BIA or IJ more specifically.

Read opinion here.

Read blog of original opinion here.