By Kelley Keefer and Linus Chan Justice Alito’s woeful tale of a misguided European driver in his dissenting opinion of Mathis v. United States is presented as a criticism to the Supreme Court’s categorical approach jurisprudence. No. 15-6092, slip op. dissent at 1 (J. Alito dissenting) (U.S. Sup. Ct., June 23, 2016). And while one (and the majority) may disagree as to whether Taylor v. United States, 495 U.S. 575 (1990), really was a wrong turn, the 26 years since the publication of Taylor has nonetheless proven to be an interesting journey. Mathis provides the latest attempt by the [...]
Fifth Circuit Finds that Despite Ambiguity in Record of Conviction, Burden Rests on Alien to Prove Conviction is not Related to a Controlled Substance
By Alex Sheppard Last month the Fifth Circuit Court of Appeals released a decision on (1) whether the alien or the government bears the burden of proof in determining whether grounds for mandatory denial of an alien’s application for relief do not apply when the alien has demonstrated ambiguity in the record of conviction; (2) whether that burden was met; and (3) the effect of a Canadian pardon for the conviction in question. Le v. Lynch, No. 13-60664, slip op. (5th Cir. Jan. 6, 2016). The Fifth Circuit ruled that despite ambiguity in the record, the alien bears the burden of proof; that [...]
The Real World Consequences of Mellouli v. Lynch
By Michael Z. Goldman In Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), the Supreme Court made absolutely clear that a state drug conviction can only trigger removability if it can be shown by the government that the “controlled substance” at issue is located on the federal -- and not just the state -- controlled substance schedules. This is because the Immigration and Nationality Act (“INA”) makes removable only those convicted of offenses “relating to a controlled substance (as defined in section 802 of Title 21)” (i.e., the federal controlled substance schedules). See INA § [...]
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, [...]
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 [...]
5 Cir: Sealed pre-sentence report may be used in removal proceedings; use isn’t grounds for sanctions
The U.S. Court of Appeals for the Fifth Circuit upheld the use of a sealed pre-sentence investigation report (PSR) in removal proceedings and held that DHS trial attorneys should not be cited for criminal contempt as a result of submitting the PSR to an immigration judge without first receiving permission from the criminal court. United States v. Iqbal, No. 10-51200, slip op. (5th Cir. June 14, 2012) (Jones, Owen, and Higginson). Judge Jones wrote the panel’s decision. This case involved an individual convicted of structuring financial transactions to evade federal reporting requirements [...]
BIA: Illegal deportation doesn’t strip BIA of jurisdiction; says prosecutor’s report is part of record of conviction
The Board of Immigration Appeals held that an illegal deportation carried out by DHS does not deprive the Board of jurisdiction to consider the deported individual’s appeal. Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) (Pauley, Guendelsberger, and Adkins-Blanch, Board Members). In addition, in deciding that the Arkansas residential burglary offense is an aggravated felony, the Board considered a prosecutor’s report as part of the record of conviction. Board Member Pauley wrote the panel’s opinion. This case involved an LPR convicted as an accomplice to robbery, Ark. Code Ann. § [...]