After years of litigation, the U.S. Court of Appeals for the Ninth Circuit announced yesterday that Arizona’s no bail law for unauthorized migrants violates the Due Process Clause of the Fourteenth Amendment. Lopez-Valenzuela v. Arpaio, No. 11-16487, slip op. (9th Cir. Oct. 15, 2014) (en banc). This case involved a facial challenge to Arizona’s Proposition 100, a slate of amendments to the state constitution that, among other things, prohibit state judges from setting bail of any amount for people charged with a slew of state felonies if the judge had probable cause to believe that the [...]
9 Cir: Clarifies difference between divisible & indivisible statutes
The U.S. Court of Appeals for the Ninth Circuit jumped into the minutia of crimmigration law with a recent decision on a critically important topic: how to distinguish between divisible and indivisible statutes. Rendon v. Holder, No. 10-72239, slip op. (9th Cir. Aug. 22, 2014). Judge Reinhardt issued the court’s opinion. This case involved an LPR who was convicted of second-degree burglary in California. The BIA found that his conviction, pursuant to Cal. Penal Code § 459, constituted an attempted theft offense type of aggravated felony under INA § 101(a)(43)(U). In relevant part, the [...]
BIA: Nevada attempted possession of stolen vehicle isn’t theft type of aggravated felony
The Board of Immigration Appeals held that Nevada’s attempted possession of a stolen vehicle does not fit within the theft category of aggravated felony. Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) (Pauley, Guendelsberger, and Greer, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR convicted of attempted possession of a stolen vehicle in violation of Nevada Revised Statutes 193.330 and 205.273. At the time, the statute criminalized possession of a stolen vehicle by a person who “knows or has reason to believe” that the vehicle was stolen. Nev. [...]
9 Cir: Conspiracy aggravated felony requires overt act; rejects BIA position
The U.S. Court of Appeals for the Ninth Circuit held the generic definition of “conspiracy” used in the aggravated felony definition requires an overt act in furtherance of the conspiracy, but Nevada’s conspiracy offense does not. This discrepancy between the federal generic definition and the state statute means a conviction under the Nevada conspiracy statute is not a conspiracy type of aggravated felony. United States v. García-Santana, No. 12-10471, slip op. (9th Cir. Feb. 20, 2014) (Alarcón, Berzon, and Zouhary, JJ.). Judge Berzon wrote the panel’s opinion. This case involved a woman [...]
9 Cir: Operation Streamline proceeding violates Rule 11; vacates conviction
The U.S. Court of Appeals for the Ninth Circuit held that a criminal conviction obtained through Operation Streamline violated Rule 11 of the Federal Rules of Criminal Procedure and vacated the noncitizen defendant’s conviction. United States v. Arqueta-Ramos, No. 10-10618, slip op. (9th Cir. September 20, 2013) (Fernandez, Paez, and Berzon, JJ.). Judge Paez wrote the panel’s opinion. This case involved a woman who pleaded guilty to illegally entering the United States, a misdemeanor violation of INA § 275(a). The Arizona federal district court, where this occurred, accepted Arqueta-Ramos’ [...]
9 Cir: Cal. marijuana possession is categorically controlled substances offense
The U.S. Court of Appeals for the Ninth Circuit held that a conviction for possessing marijuana under California law is categorically a controlled substances offense (CSO) for immigration law purposes. Macias-Carreon v. Holder, No. 10-70380, slip op. (9th Cir. May 30, 2013) (Noonan, Wardlaw, and Murguía, J.). Judge Murguía wrote the panel’s decision. This case involved an individual who entered without inspection and was later convicted of violating California Health and Safety Code § 11359, which prohibits “possess[ing] for sale any marijuana.” DHS charged Macias-Carreon as removable for [...]
9 Cir: Rejects Silva-Treviño; deepens circuit split
The U.S. Court of Appeals for the Ninth Circuit expressly rejected Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), in which Attorney General Mukasey revamped the method by which immigration courts determine whether a particular conviction involves moral turpitude. Olivas-Motta v. Holder, No. 10-72459, slip op. (9th Cir. May 17, 2013) (Fletcher, Hug, and Kleinfeld, JJ.). Judge Fletcher wrote the panel’s opinion; Judge Kleinfeld concurred. This case involved an LPR who arrived in the United States at the age of 10 days. Eventually he was convicted of marijuana possession in 2003 and [...]
SCOTUS: Can’t use modified categorical approach if statute isn’t divisible
In its final crImmigration case of the 2012-13 Term, the U.S. Supreme Court clarified that courts can not use the modified categorical approach of statutory interpretation when a statute of conviction is not divisible. Descamps v. United States, No. 11-9540, slip op. (U.S. June 20, 2013) (Kagan, Roberts, Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor, JJ.; Kennedy, concurring; Thomas, concurring in the judgment; Alito, dissenting). Instead, courts must rely on the categorical approach alone which allows consideration of the crime’s elements. The modified categorical approach, in contrast, [...]