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, [...]
9 Cir: Not all entries are equal
Showing up at the border, presenting an LPR card, and being allowed to enter the USA doesn’t necessarily mean you reentered legally, the Ninth Circuit concluded. Tamayo-Tamayo v. Holder, No. 08-74005, slip op. (9th Cir. Feb. 28, 2013) (Noonan, Graber, and Fisher, JJ.). Judge Graber wrote the panel’s opinion. This case involves an LPR who was removed in 1989 and again in 1993. Sometime later “he entered at a border crossing by presenting his pre-1989 permanent resident card to the border official. The border official allowed Petitioner physically to enter the country.” Tamayo-Tamayo v. Holder, [...]
BIA: Cal indecent exposure is CIMT; rejects 9Cir reasoning
The BIA held that California’s indecent exposure offense is a crime involving moral turpitude. Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013) (Grant, Malphrus, and Mullane, Board members). In the process, the Board rejected the Ninth Circuit’s holding that the same crime is not a CIMT. Board member Malphrus wrote the panel’s decision. This case involved an LPR convicted of indecent exposure in California, Cal. Penal Code § 314(1), on several occasions. DHS claimed that Cortes Medina was removable because he was convicted of multiple crimes involving moral turpitude. INA § [...]
9 Cir: Judgment abstract can identify drug that defendant possessed
The U.S. Court of Appeals for the Ninth Circuit held that an abstract of judgment can serve as the basis for determining whether an individual was convicted of a controlled substances offense. Cabantac v. Holder, Nos. 09-71336 & 12-71459, slip op. (9th Cir. Aug. 23, 2012) (Kozinski, O'Scannlain, and Bea, JJ.). This is a per curiam opinion. This case involves an individual who was convicted of possession of a controlled substance, methamphetamine, in California. Cal. Health & Safety Code § 11377(a). Cabantac argued that he was not convicted of possessing methamphetamine or any other [...]
BIA: Obstruction of justice aggravated felony requires intentional attempt to interfere with investigation
The BIA held the obstruction of justice type of aggravated felony requires that the noncitizen have made an affirmative, intentional attempt to specifically interfere with an ongoing criminal investigation or trial. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 841 (BIA 2012) (Grant, Malphrus, and Mullane, Board members). Board Member Grant wrote the panel’s decision. This case involved an LPR who was convicted of accessory to a felony, Cal. Penal Code § 32, and sentenced to 16 months imprisonment. DHS alleged that this conviction fell within the “obstruction of justice…for which the [...]
9 Cir: Does failure to register involve moral turpitude?
The U.S. Court of Appeals for the Ninth Circuit recently threw a wrench into the BIA’s 2007 ruling that failure to register as a sex offender constitutes a crime involving moral turpitude. In Pannu v. Holder, No. 07-71988, slip op. 6235 (9th Cir. May 11, 2011) (Reinhardt, Hawkins, and Gould), the Ninth Circuit suggested that failure to register as a sex offender under California law might not be a crime involving moral turpitude because it is a strict liability offense. Judge Hawkins wrote the panel’s decision. Some background is appropriate. In a 2007 decision, Matter of Tobar-Lobo, 24 [...]
SCOTUS to hear fraud/deceit aggravated felony case
The Supreme Court today granted cert on a case in which the Ninth Circuit held that filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were fraud or deceit aggravated felonies, INA § 101(a)(43)(M)(i). The question presented in Kawashima v. Holder, No. 10-577, the case the Court will hear next term, is: “Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in [...]
9th Cir: Burden on govt to justify continued detention; must record bond hearing
The U.S. Court of Appeals for the Ninth Circuit recently held that the government has the burden of proving by clear and convincing evidence that continued detention pending removal is justified and that the immigration court must make a contemporaneous record of a bond hearing. Singh v. Holder, No. 10-15715, slip. op. (9th Cir. March 31, 2011) (Graber, Fisher, and Bybee, J.). Judge Fisher wrote the panel’s opinion. This case involved an LPR imprisoned by ICE since April 10, 2007. An IJ ordered him removed in September 2007, but his case has moved slowly through the appeals process, [...]