Immigration and Criminal Law

Our immigration system disfavors foreigners who commit crimes. The common wisdom is that criminals should be afforded an opportunity to build a life in the United States. The Congress made sure that this wisdom is reflected in the Immigration and Nationality Act (INA) the primary law which governs immigration to and removal from the United States. Though not all, many criminal acts carry adverse immigration consequences. INA contains two primary sections in which these consequences are described and criminal activity, which leads to them identified.

INA§212 (a) codified as 8 USC § 1182(a) lists all grounds of inadmissibility and identifies criminal activity, which causes them. Inadmissibility is a legal concept that prohibits foreigners s ubject to it from entering the USA or adjusting their immigration status to that of an LPR. Unless waived, inadmissibility is an insurmountable predicament to becoming a Legal Permanent Resident in the United States. As to waiving it, there are very limited waivers of inadmissibility available when it caused by the foreigner’s criminal activity. For the most part, such waivers are sparingly granted and only available for people who are able to prove that their departure from the United States would result in extreme hardship to their parents, spouses or in some cases, children. Inadmissibility may also carry other serious consequences including mandatory detention by the Immigration and Custom Enforcement (ICE) and expedited removal from the United States without ever seeing an immigration judge to present reasons why such person should be allowed to stay in the USA.

INA §237(a) codified in 8 USC § 1227(a) presents another problem for the foreigners who have committed crimes. It identifies criminal convictions, which renders these aliens removal from the United States including those holding Legal Permanent Resident status. These reasons are called grounds of deportability. In this regard, LPRs are also considered aliens and are afforded though some but very little leeway when it comes to the immigration consequences of the criminal activity they engaged in. If the alien is found deportable he or she might seek such grounds of deportation cured but only few such remedies are available under the law. For instance, successful adjustment of status application would cure the removability but not inadmissibility grounds. On the other hand, some forms of criminal activity do not trigger inadmissibility while others do not trigger deportability. In short, the analysis of the immigration consequences of a criminal activity and potential relieves available often gets rather complex and requires a diligent study of the record of conviction as a whole as well as the expertise of an experienced immigration attorney.

Inadmissibility for Criminal and Related Grounds

The Immigration and Nationality Act contains several inadmissibility grounds for noncitizens who commit certain criminal and related offenses. In this article, I will list the criminal and related inadmissibility grounds found in section 212(a)(2) of the Immigration and Nationality Act (INA) [codified in 8 U.S.C. 1182(a)(2)] and explain the rules, exceptions, and waivers for each category of inadmissibility.

Descamps v. United States and its Effects on Immigration Law

On June 20, 2013, the United States Supreme Court rendered an important decision in Descamps v. United States. The Descamps decision addressed the analysis of state criminal statutes for purpose of determining when a prior state conviction triggers the imposition of a harsher sentence under the federal Armed Career Criminals Act. The Supreme Court held Descamps that where a statute consists of “a single, indivisible set of elements,” the appellate court may only consider whether the most minor conduct proscribed by the statute would constitute the crime in question (in the case of Descamps, the crime of burglary as specified in ACCA). However, if the statute is “divisible,” the appellate court may rely upon limited evidence from the record of facts to determine which element or set of elements of the statute yielded the conviction.

Term of Confinement Issued as Condition of a Probation Sentence Qualifies as "Term of Imprisonment"

On December 9, 2015, the Board of Immigration Appeals (BIA) issued an important precedent decision in Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015). The BIA held that a term of confinement issued as a condition of a probation sentence qualifies as a “term of confinement” under section 101(a)(48)(B). This article will explain the background of the case, the reasoning behind the decision, and what the precedent means for criminal aliens.

Leocal v. Ashcroft: Narrowing the Scope of "Crime of Violence"

In 2004, the Supreme Court held unanimously in Leocal v. Ashcroft, 543 U.S. 1 (2004), that a state DUI offense which (1) does not have a means rea (state of mind) component; or (2) requires only a showing of negligence in the operation of a vehicle is not a “crime of violence” under 18 U.S.C. 16. his holding was made in the context of an appeal by a lawful permanent resident who had been ordered deported based upon his DUI conviction being considered an immigration aggravated felony under section 101(a)(43)(F) of the INA. In this article, we will look at the facts of Leocal v. Ashcroft, the Supreme Court’s decision, and its broader implication for aliens with certain criminal convictions.

De Leon v. Lynch (10th Cir): When a Conviction for Possession of a Stolen Vehicle is a CIMT

On December 22, 2015, the Tenth Circuit Court of Appeals issued a decision in De Leon v. Lynch No. 13-9601 (10th Cir. Dec. 22, 2015) [PDF] that ruled on two important immigration issues. First, the Tenth Circuit held that an Oklahoma statute for possession stolen vehicles is categorically a crime of moral turpitude (CIMT), thus triggering inadmissibility. On a separate point, the Tenth Circuit held that an alien who adjusted to lawful permanent resident (LPR) status after entering the United States is eligible for a section 212(h) waiver of inadmissibility. In this article, I will discuss the facts of De Leon v. Lynch, the reasoning behind the Tenth Circuit’s decision, and the significance of the decision.

Dimaya v. Lynch (9th Cir): Part of Statute for Aggravated Felonies for Crimes of Violence is Unconstitutionally Vague

On October 19, 2015, a two-judge majority of a three-judge panel of the Ninth Circuit held in Dimaya v. Lynch, 803 F.3d 1110 (Oct 19, 2015) held that 101(a)(43)(F) of the Immigration and Nationality Act (INA), which defines aggravated felonies for a “crime of violence,” is unconstitutionally vague under the Due Process Clause of the Fifth Amendment in its incorporation of 18 U.S.C. 16(b). In rendering its decision, the Ninth Circuit relied upon the recent Supreme Court decision in Johnson v. United States, – U.S. –, 135 S.Ct. 2551 (2015). This article will discuss the case background, the reasoning behind the decision, and the potential future litigation over Johnson’s application to 18 U.S.C. 16(b) as it is incorporated into the INA.

Matter of Esquivel-Quintana: BIA Clarifies When Statutory Rape is an Aggravated Felony

In the Matter of Esquivel-Quintana, the BIA held that a California statute for “unlawful intercourse with a minor” was categorically an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act (INA) (for “sexual abuse of a minor”). In this article, we will discuss the BIA’s holding in the Matter of Esquivel-Quintana, the reasoning behind the decision, and its broader effect on immigration law regarding criminal aliens.

Esquivel-Quintana v. Lynch (6th Cir.): Application of Chevron to Dual-Application Statutes

On January 15, 2016, issued its decision in Esquivel-Quintana v. Lynch, No. 15-3101, (6th Cir. 2015), which followed the Board of Immigration Appeals’ (BIA’s) precedent decision in the Matter of Esquivel-Quintana, 26 I&N Dec. 469, 477 (BIA 2015). The Sixth Circuit upheld the Matter of Esquivel-Quintana in accordance on the Chevron test. This requires courts to defer to an administrative agency’s interpretation of an ambiguous statute that it is charged with administering so long as that interpretation is reasonable. However, a third judge on the three-judge panel dissented in part with regard to the majority’s decision to apply Chevron to the statute because it has both criminal and civil applications. In this article, we will explore the two opinions from Esquivel-Quintana v. Lynch.

Matter of Mendoza Osorio: BIA Holds NY Child Endangerment Statute Categorically Crime of Child Abuse

On February 9, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016). In the Matter of Mendoza Osorio, the BIA held that a New York child endangerment categorically constituted a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). In this article, we will look at the issues presented, the BIA’s reasoning, and the potential effects of this new BIA precedent going forward.

Matter of Guzman-Polanco: BIA Holds that State Statute Requires "Violent" Physical Force to be a Crime of Violence

The Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) on February 24, 2016. The Board held that in order for a state offense to qualify as a “crime of violence” under 18 U.S.C. 16(a), the state statute in question must require as an element “the use , attempted use, or threatened use of violent physical force.” In the decision, the Board also withdrew parts of its precedent decision in the Matter of Martin, 23 I&N Dec. 491 (BIA 2002) that were overruled by the First Circuit in Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015 as being inconsistent with Supreme Court precedent in Leocal v. United States, 543 U.S. 1 (2004) and Johnson v. United Sates, 559 U.S. 133, 137 (2010).

Board Clarifies Matter of Guzman-Polanco: No Precedent on Use of Indirect Force and Crime of Violence

On February 24, 2016, the Board of Immigration Appeals issued a precedent decision in the Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) (“Guzman-Polanco I”). In the Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016) (“Guzman-Polanco II”), the Board issued a second opinion clarifying its decision in Guzman-Polanco I. It emphasized that Guzman-Polanco I did not establish nationwide Board precedent with regard to the question of whether a statute that criminalizes the use or threatened use of force by indirect means (i.e., poison) would fall under the scope of 18 U.S.C. 16(a).

Mellouli v. Lynch: Limiting the Controlled Substance Deportability Ground in Section 237

In a decision dated to June 1, 2015, the Supreme Court held by a margin of 7-2 in Mellouli v. Lynch that a state drug conviction for concealing unnamed pills cannot trigger removal under section 237(a)(2)(B)(i) of the Immigration and Nationality Act if the statute in question does not categorically implicate a federally controlled substance. In this article, we will provide a brief overview of the statutes in question, the reasoning behind the decision, and what the decision means in the context of removal and deportation law.

Controlled Substance Inadmissibility and Deportability

The Immigration and Nationality Act (INA) proscribes harsh immigration penalties for controlled substance violations and trafficking in controlled substances. Provisions for inadmissibility for controlled substance violations and trafficking in controlled substances are found in section 212 of the INA, whereas deportability grounds for those violations are found in section 237. In this article, we will explore various issues relating to inadmissibility and deportability for controlled substance violations.

Circuit Decisions on Controlled Substance Inadmissibility and Deportability

In this article, we will review various precedential and unpublished decisions from the Second, Third, Fifth, and Ninth Circuits relating to controlled substance inadmissibility and deportability. The cases involve state statutes from New York, New Jersey, Pennsylvania, Texas, and California. The sampling of cases will both show how courts analyze state-level controlled substance statutes and some of the differences in precedents between the circuits.

Drug Trafficking Inadmissibility and Deportability

The Immigration and Nationality Act (INA) has harsh immigration penalties for controlled substance violations and trafficking in controlled substances. Provisions for drug trafficking-related inadmissibility and deportability are found in sections 212 and 237 (via section 101) of the INA. In this article, we will examine various issues relating to inadmissibility and deportability on drug trafficking grounds.

Circuit Decisions on Drug Trafficking Inadmissibility and Deportability

In this article, we will review multiple precedential and unpublished decisions relating to drug trafficking inadmissibility and deportability from the Second, Third, Fifth, and Ninth Circuits. The cases we will look at arise from state convictions in New York, Connecticut, New Jersey, Pennsylvania, California, and Arizona. The selection of cases will shed light on various issues relating to the inadmissibility and deportability grounds for trafficking in controlled substances and will furthermore show how circuits have interpreted various state-level controlled substance statutes in the immigration context. This article is intended to be a companion piece to our main article on inadmissibility and deportability for trafficking in controlled substances.

Deportability for Failure to Register as a Sex Offender (under 18 U.S.C. 2250)

Under section 237(a)(2)(A)(v) of the Immigration and Nationality Act (INA), an alien who is convicted of failure to register as a sex offender, under the federal criminal statute 18 U.S.C. 2250, is deportable. In this article, we will examine the INA’s deportability provision and the federal criminal statute found in 18 U.S.C. 2250.

Deportability for Threats Against the President or Next-In-Line (under 18 U.S.C. 871)

Section 237(a)(2)(D) lists several deportability provisions for “miscellaneous crimes.” Among these provisions is that found in section 237(a)(2)(D)(ii) of the Immigration and Nationality Act (INA), which renders deportable an alien who has been convicted of violating or of a conspiracy or attempt to violate 18 U.S.C. 871. 18 U.S.C. 871, a federal criminal provision, proscribes the making of certain threats against the President, President-Elect, Vice President, Vice President-Elect, or other person next-in-line to the Presidency. In this article, we will discuss the deportability ground found in section 237(a)(2)(D)(ii) of the INA through an examination of 18 U.S.C. 871.

Matter of Adeniye: The Meaning of "Punishable By" in the Aggravated Felony for Failure to Appear

On May 2, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision in the Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016) regarding the meaning of the term “punishable by” in the statute for the immigration aggravated felony found in section 101(a)(43)(Q) of the Immigration and Nationality Act (INA) (failure to appear for sentencing where the underlying sentence is punishable by at least 5 years’ imprisonment). The Board held that “punishable by” refers to the maximum sentence that may be imposed under a statute rather than the actual sentence imposed. In this article, we will review the facts of the case, the reasoning behind the Board’s decision, and the effects of the Board’s decision going forward.

Matter of Gonzalez Romo: BIA Finds that Conviction for Solicitation to Commit a CIMT is a CIMT

On May 19, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision in the Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016) addressing whether a conviction for solicitation to possess marijuana for sale is a crime involving moral turpitude (CIMT) as defined in section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). In the instant case, the alien had been a lawful permanent resident (LPR) and the question of whether the offense was a CIMT determined whether she would be treated as an “arriving alien” rather than an LPR. Ultimately, the Board held that within the Ninth Circuit (from under the jurisdiction of which this case arose), a felony conviction for solicitation to possess marijuana for sale is a CIMT. In so doing, the Board modified its precedent decision in the Matter of Vo, 25 I&N Dec. 426 (BIA 2011). In this article, we will examine the facts and procedural history of the case, the Board’s reasoning in reaching its decision, and the effect of its decision going forward.

The Matter of H. Estrada: Overview

On May 27, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016). The decision dealt with two issues regarding criminal aliens. Firstly, the Board found that the “circumstance-specific approach” may be used to determine whether a conviction is for a crime of domestic violence under the deportability provision in section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). Secondly, the Board determined that when a sentence is ambiguous as to whether an alien was sentenced to probation or a probated term of imprisonment—with respect to determining whether the alien was sentenced to a term of imprisonment of at least 1 year for purpose of his conviction qualifying as an aggravated felony for a crime of violence under section 101(a)(43)(F)—“a clarification order issued by the sentencing judge to correct an obvious discrepancy in [the] original order will be given effect” in determining whether the alien was sentenced to a term of imprisonment of 1 year.

The Matter of H. Estrada: The Circumstance-Specific Approach for Crimes of Domestic Violence

In the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016), the Board of Immigration Appeals (BIA) found that in order for a conviction to be for a crime of domestic violence under the deportability provision in section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA), the statute itself need not be categorically for a crime of domestic violence. Rather, a “circumstance-specific” approach may be utilized to determine whether a domestic relationship existed between the offender and the victim.

The Matter of H. Estrada: Use of Clarifying Orders in Determining Length of Term of Imprisonment

In the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016), the Board of Immigration Appeals (BIA) found that when a sentencing order is ambiguous as to whether an alien was sentenced to a term of imprisonment of at least one year, the sentencing judge’s clarifying order may be considered as evidence. In the Matter of H. Estrada, the clarifying order was used to determine that the respondent had not been sentenced to a term of imprisonment of at least one year for purpose of his conviction being an aggravated felony for a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (INA).

Matter of Garza-Oliveras: Applying the Circumstance-Specific Approach to Aspects of Failure to Appear Aggravated Felony

On May 5, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Garza-Oliveras, 26 I&N Dec. 736 (BIA 2016). The case dealt with the immigration aggravated felony found in section 101(a)(43)(T) of the Immigration and Nationality Act (INA) consisting “an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed.” The Board held that the categorical approach must be used to decide if an alien’s offense “relates to [his or her] failure to appear,” but the circumstance-specific approach applies to determine if the failure to appear was under a court order, to answer to or dispose of a charge of a felony, or for which a sentence of 2 years’ of imprisonment or more may be imposed. In this article, we will examine the facts and the procedural history of the case, the Board’s analysis and decision, and the effects of the new BIA precedent going forward.

Voisine v. U.S.: Question of Whether "Crime of Violence" Includes "Reckless Conduct"

On June 27, 2016, the Supreme Court issued a decision titled Voisine v. United States, 579 U.S. __ (2016). In Voisine, the Court held, by a 6-2 margin, that 18 U.S.C. 922(g)(9), a statute which prohibits firearms possession for a person who has been convicted of a “misdemeanor crime of domestic violence” encompasses a state conviction that could be for a “reckless” assault rather than for a “knowing or intentional” assault. Although Voisine is not an immigration case and does not directly implicate any immigration statutes, the reasoning of the Court may be applicable to the definition for a “crime of violence,” which is relevant in the immigration context. In this article, we will discuss the Court's reasoning in Voisine and its potential effects on immigration law.

Update on Recklessness and Crimes of Violence after Voisine

In the Matter of Chairez, 26 I&N Dec. 819 (BIA 2016), the Board of Immigration Appeals (BIA) clarified the rules for determining when a criminal statute is “divisible” consistent with the Supreme Court decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) and Descamps v. United States, 133 S.Ct. 2276 (2013). To learn more about the new Matter of Chairez decision, please see our comprehensive article. In this article, we will examine a footnote from the new Matter of Chairez decision regarding the question of whether, in light of the Supreme Court decision in Voisine v. United States, 136 S.Ct. 2272 (2016), reckless conduct may be included within the scope of the immigration aggravated felony provision for a crime of violence.

Mathis v. United States: SCOTUS Clarifies When the Categorical Approach Must be Used

On June 23, 2016, the Supreme Court issued an important decision titled Mathis v. United States, 579 U.S. ___ (2016). Although Mathis is not an immigration case, its precedent will have effects on immigration law. For example, immigration adjudicators and federal courts are often tasked with determining whether an alien who is convicted of an offense was convicted of committing an immigration aggravated felony. Often, the question of whether the categorical approach or the modified categorical approach must be employed in determining whether the alien’s conviction was for an aggravated felony. In this article, we will examine the decision in Mathis and discuss its possible effects on immigration law in the criminal aliens context.

Attorney General Lifts Stay in Chairez & Sama Regarding Use of Categorical/Modified Categorical Approach

On October 30, 2015, the Attorney General referred stayed two Board of Immigration Appeals decisions and referred them to herself for review in the Matter of Chairez & Sama, 26 I&N Dec. 686 (AG 2015) (“Chairez & Sama 2015”). The referral concerned the proper approach for determining “divisibility” of criminal statutes that allow for alternative means of commission in light of the Supreme Court decision in Descamps v. United States, 133 S.Ct. 2276 (2013). On September 7, 2016, the Attorney General lifted her stay in the Matter of Chairez & Sama, 26 I&N Dec. 796 (AG 2016) (“Chairez & Sama 2016”). This decision was prompted by the Supreme Court’s recent decision on June 23, 2016, in Mathis v. United States, 579 U.S. __ (2016), which addressed the issues that prompted the Attorney General’s initial stay in October of 2015. In this article, we will review the history of the proceedings that led to the Attorney General lifting the stay in the Matter of Chairez & Sama, 26 I&N Dec. 796 (AG 2016).

Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) - Board Follows Mathis Regarding Determining Divisibility

On September 28, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 26 I&N 819 (BIA 2016) (“Chairez III”). The case concerned when a statute defining a crime may be treated as “divisible.” In the instant case, an alien was convicted in violation of a Utah state law for felony discharge of a firearm. In accordance with the Supreme Court’s decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) and Descamps v. United States, 133 S.Ct 2276 (2013), the Board held that the statute was not divisible and that the alien was not inadmissible for having been convicted of an immigration aggravated felony. A key point in the decision was that the statute did not require the mens rea (state of mind) of the defendant to be determined by the jury in order for the defendant to be convicted under the statute.

Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) ("Chairez IV"): "Peeking" at the Record to Determine if Statute is Divisible

On April 24, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”). In the its decision, the Board held that when determining whether a statute is “divisible” under the Supreme Court of the United States decision in Mathis v. United States, 136 S.Ct. 2243 (2016), Immigration Judges are permitted to “peek” at an alien’s record of conviction only in order to discern whether alternatives in the statute of conviction define “elements” or “means.” Additionally, the Board also addressed the applicability of the Supreme Court’s holding in Voisine v. United States, 136 S.Ct. 2272 (2016) to the 18 U.S.C. 16 crime of violence context in immigration proceedings. Specifically, the question was whether Voisine means that a crime with a minimum mens rea of “recklessness” is a crime of violence. In this article, we will examine the Chairez IV decision.

Concurring Opinion in Chairez IV: The Strict Approach to Divisibility in Immigration Proceedings

On April 24, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”). In this decision, the fourth precedent decision issued by the Board on the Chairez case, the Board held that Immigration Judges may “peek” at an alien’s conviction record “only to discern whether statutory alternatives define ‘elements’ or ‘means’ provided State law does not otherwise resolve the question.” In Chairez IV, Judge Garry D. Malphrus of the BIA issued an interesting concurring opinion. First, he agreed with the result reached by the Board in the case. However, Judge Malphrus raised interesting questions regarding the application of the Supreme Court decisions – that regard with the use of the categorical and modified categorical inquiries in criminal proceedings – to immigration proceedings. In this post, I will discuss Judge Malphrus’s opinion.

Matter of Ibarra: Aggravated Felony Theft Includes Certain Extortionate Takings

On September 15, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Ibarra, 26 I&N Dec. 809 (BIA 2016). Ibarra addressed the scope of the immigration aggravated felony for a “theft offense” found in section 101(a)(43)(G) of the Immigration and Nationality Act (INA). The Board found that section 101(a)(43)(G) includes within its scope extortionate takings where “consent” is obtained through the through the wrongful use of force, fear, or threats. In this article, we will examine the facts of the case, the Board’s analysis and decision, and what the new precedent decision means for similar situations going forward.

Matter of Zaragoza-Vaquero: Certain Criminal Copyright Violations are CIMTs

On September 23, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016). In the decision, the Board held that a federal conviction for copyright infringement under 17 U.S.C. 506(a)(1)(A) (2012) and 18 U.S.C. 2319(b)(1) (2012) is a crime of moral turpitude (CIMT). In this article, we will examine the facts and procedural history of the case, the Board’s analysis and decision, and what the new Board precedent may mean going forward for similar cases.

Supreme Court to Consider Whether Part of INA's Crime of Violence Provision is Void for Vagueness

On September 29, 2016, the Supreme Court agreed to hear Lynch v. Dimaya, 15-1498, on appeal from the United States Court of Appeals for the Ninth Circuit. The case concerns whether part of the Immigration and Nationality Act’s (INA’s) definition of an aggravated felony crime of violence in section 101(a)(43)(F) is unconstitutionally vague. Specifically, the question regards the INA’s incorporation of 18 U.S.C. 16(b), a non-immigration federal criminal statute. It is important to note that the issues presented do not call into question the INA’s incorporation of 18 U.S.C. 16(a) in the same provision.

Matter of Silva Trevino III: New Approach to Determining Whether Conviction is for a CIMT

In Silva-Trevino III, the Board held that the categorical and modified categorical approaches provide the proper framework for assessing whether a criminal conviction is a CIMT. With regard to the categorical approach, the Board held that adjudicators must use the “realistic probability test,” which focuses on the minimum conduct under the statute in question that has “a realistic probability of being prospected” in determining whether the statute is a categorical crime involving moral turpitude (CIMT). In this article, we will examine the Matter of Silva-Trevino with respect to its discussion of how to determine whether a conviction is a CIMT.

History of The Matter of Silva-Trevino: Silva-Trevino I and II and Determining Whether Conviction is a CIMT

On October 12, 2016, the Board of Immigration Appeals (BIA) issued an important decision titled the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016)]. In Silva-Trevino III, the Board articulated a uniform standard for determining whether a particular criminal offense is a crime involving moral turpitude (CIMT). In this article, we will examine the case history of Silva-Trevino III to explain the series of decisions that led to the Board’s most recent resolution of the issue.

Silva Trevino III: Evidentiary Standard for Relief for those who Engaged in the Sexual Abuse of a Minor

On October 12, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016). This decision was the third in line on the same issue after the Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N Dec. 687 (AG 2008) and the Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015).

Immigration Civil Enforcement Priority for Gang Participation

On November 20, 2014, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a Memorandum detailing new immigration enforcement priorities tiled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” Within the first priority level, the Memorandum includes aliens who were convicted of an offense for which an element was active participation in a criminal street gang. For the definition of a “criminal street gang,” the Memorandum relies in part upon a federal criminal statute found in 18 U.S.C. 521(a). In this article, we will examine the language of the relevant statute to understand cases in which active participation in a criminal street gang may render one a top immigration enforcement priority.

Matter of Diaz-Lizarraga, 26 I&N Dec. 846 (BIA 2016): Standard for When a Theft Offense is a CIMT

In the Matter of Diaz-Lizarraga, 26 I&N Dec. 856 (BIA 2016), the Board held that a theft offense is a CIMT if “it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.” In accordance with its holding, the Board held that a conviction for shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is categorically a CIMT. The decision has the effect of overruling any past precedent decisions that suggested that a “literal intent to permanently deprive” an owner of his or her property is required for a theft offense to be a CIMT. In this article, we will examine the facts of the case, the Board’s analysis, and the broader effect of this new precedent.

Matter of Obeya, 26 I&N Dec. 856 (BIA 2016): BIA Finds NY Petit Larceny Conviction to be Categorical CIMT

On November 16, 2016, the Board of Immigration Appeals (BIA) issued a decision titled the Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). In this decision, the Board held that petit larceny in violation of section 155.25 of the New York Penal Law is a categorical crime involving moral turpitude (CIMT). In reaching its decision, the Board followed a separate precedent decision issued on the same day in the Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016). Diaz-Lizarraga established the rule that a theft offense is categorically a CIMT if it involves “an intent to deprive the owner of his [or her] property either permanently or under circumstances where the owner’s property rights are substantially eroded.”

USCIS-PM on Inadmissibility for Falsely Claiming U.S. Citizenship (1): Background

In this article, we will review the USCIS Policy Manual's (PM's) introduction to the false claim to U.S. citizenship inadmissibility ground, the background of the provision, and how it is distinct from the inadmissibility provision for fraud or misrepresentation of a material fact to procure immigration benefits. This article is the first part of four articles covering the PM’s guidance on the false claim to U.S. citizenship immigration ground.

USCIS-PM on Inadmissibility for Falsely Claiming U.S. Citizenship (2): Determining Whether False Claim Was Made

In this article, we will discuss the USCIS Policy Manual's (PM's) guidance on determining whether a false claim to U.S. citizenship as defined in section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA) was made. This is the second article in a four-part series on the USCIS-PM’s guidance on the false claim to U.S. citizenship inadmissibility ground.

Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016): New Definition of Generic Perjury for Aggravated Felony Perjury

On December 29, 2016, the Board of Immigration Appeals (BIA) a precedent decision in the Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016). The decision concerned the immigration aggravated felony provision for perjury found in section 101(a)(43)(S) of the Immigration and Nationality Act (INA). The Board held that “perjury,” as that term is employed in section 101(a)(43)(S), references a generic offense of perjury, which the Board found “requires that an offender make a material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.”

Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017): Unlawful Transportation of a Firearm is Categorical Firearms Offense

On March 3, 2017, the Board of Immigration Appeals (BIA) issued a precedential decision in the Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017). In this decision, the Board held that an offense for transporting a firearm under Oklahoma State law is categorically a firearms offense under section 237(a)(2)(C) of the INA, notwithstanding that section 237(a)(2)(C) does not specifically include the term “transporting.” In this article, we will examine the facts and procedural history of the Matter of Flores-Abarca, the Board’s reasoning and decision, and what this decision will mean going forward.

Matter of Kim, 26 I&N Dec. 912 (BIA 2017) -- California Mayhem Statute is Categorically for Crime of Violence

On January 31, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Kim, 26 I&N Dec. 912 (BIA 2017). In the Board was tasked with determining whether a conviction under section 203 of the California Penal Code for the crime of mayhem is a categorical crime of violence under 18 U.S.C. 16(a) (2012). The Board found that a conviction under section 203 of the California Penal Code is categorically a crime of violence under 18 U.S.C. 16(b) because section 203 “requires a malicious act that results in great bodily injury to another person,” therefore “necessarily involv[ing] the use of violent force.” In this article, we will examine the facts and procedural history of the Matter of Kim, the Board’s reasoning and decision, and what the precedent will mean going forward.

Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017): When a Sexual Offense Against a Minor is a CIMT

On April 6, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017). In its decision, the Board held that a sexual offense in violation of a statute intended to protect children but that does not require a culpable mental state as to the age of the child is nevertheless a crime involving moral turpitude (CIMT) under either of two circumstances. The first is if the victim is particularly young, that is, under the age of 14. The second circumstance is if the victim is under the age of 16 and the age differential between the perpetrator and the victim is significant. Alternatively, both of these circumstances may apply and render the conviction a CIMT.

Matter of Wu, 27 I&N Dec. 8 (BIA 2017) - California Assault Statute is Categorical CIMT

On April 13, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Wu, 27 I&N Dec. 8 (BIA 2017). In the Matter of Wu, the Board held that “[a]ssault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.” In rendering its decision, the Board distinguished the instant case from the published opinion of the United States Court of Appeals for the Ninth Circuit in Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc). In this article, we will examine the facts of the Matter of Wu, the Board’s reasoning and decision, and what the decision likely means going forward as precedent.

Examining Who is Eligible to Seek Relief Under Former Section 212(c)

The former section 212(c) of the Immigration and Nationality Act (INA) provided a waiver for certain lawful permanent residents (LPRs) who were rendered deportable by a criminal conviction. The former section 212(c) was repealed by Congress, effective April 1, 1997, and was replaced generally by the narrower cancellation of removal for LPRs. However, the Supreme Court of the United States held in 2001 that the repeal of former section 212(c) does not apply retroactively. In this article, we will examine the text and history of the former section 212(c). We will explain who may still benefit from section 212(c) today, the rules for seeking section 212(c) relief, and relevant administrative precedent and caselaw concerning the scope of former section 212(c).

Esquivel-Quintana v. Sessions - SCOTUS Defines Generic Crime of "Sexual Abuse of a Minor"

On May 30, 2017, the Supreme Court of the United States decided Esquivel-Quintana v. Sessions, 581 U.S. ___ (2017). The case concerned a lawful permanent resident (LPR) who had been found removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) for having been convicted of an aggravated felony under section 101(a)(43)(A) of the INA (sexual abuse of a minor). In a unanimous 8-0[1] decision authored by Justice Clarence Thomas, the Supreme Court held that when considering a statutory rape offense that criminalizes sexual intercourse based solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” requires that the victim of the offense have been under the age of 16. This means that any statutory rape statute that criminalizes sexual intercourse with an individual between the ages of 16 or 18 – including the statute of conviction in Esquivel-Quintana – is not a categorical aggravated felony under section 101(a)(43)(A) of the INA. The Supreme Court thereby reversed the United States Court of Appeals for the Fourth Circuit, which had issued a published decision on the case in Esquivel-Quintana v. Lynch. By extension, the Supreme Court’s decision also has the effect of reversing a precedent BIA decision issued in this same case in the Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015).

Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017): Analysis of "Receipt of Stolen Property" in Agg. Felony Theft Context

On June 1, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017). The Board held that the aggravated felony receipt of stolen property codified in section 101(a)(43)(G) of the Immigration and Nationality Act (INA) does not require that the unlawfully received property have been obtained by means of common law theft or larceny. In this article, we will examine the facts and procedural history of the Matter of Alday-Dominguez, the Board’s reasoning and conclusion, and what the new precedent will mean going forward.

Matter of Deang, 27 I&N Dec. 57 (BIA 2017): Mens Rea Requirement for Agg Felony Receipt of Stolen Property

On June 16, 2017, a split Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Deang, 27 I&N Dec. 57 (BIA 2017). In Matter of Deang, the Board held that an essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Immigration and Nationality Act (INA) is that the offender must have received the stolen property with the “knowledge or belief” that it was stolen. In short, the Board determined the minimum mens rea (state of mind) required for a receipt of stolen property offense to qualify as aggravated felony receipt of stolen property offense under section 101(a)(43)(G).

Lee v. United States: Vacating a Criminal Conviction Based On Ineffective Assistance Regarding Immigration

On June 23, 2017, the Supreme Court of the United States issued its decision in Lee v. United States, 582 U.S. ___ (2017). The case concerned Jae Lee, an alien who had been a defendant in criminal proceedings. Lee’s counsel incorrectly advised him that pleading guilty to certain criminal charges would not have adverse immigration consequences. Lee pled guilty, but he was then charged as deportable on the basis of the offense to which he had pled guilty. In moving to vacate his conviction Lee claimed that his counsel had been ineffective and asserted that, had he given legally accurate advice, Lee would have opted to go to trial in lieu of pleading guilty. A six-justice majority led by Chief Justice John Roberts held that a defendant can show prejudice from his counsel’s deficient performance in plea proceedings by establishing that there is a reasonable probability that but for counsel’s errors, he or she would not have pled guilty. Pertinently, this standard thus applies regardless of the presumptive strength of the evidence against the defendant and the likely outcome if a trial were to have taken place.

SCOTUS Orders Re-Argument in Sessions v. Dimaya (18 U.S.C. 16(b) Void for Vagueness Case)

On June 26, 2017, the Supreme Court ordered re-argument in Sessions v. Dimaya, No 15-14498, for next term. The issue in Dimaya concerns section 101(a)(43)(F) of the Immigration and Nationality Act (INA). Section 101(a)(43)(F) contains the provision for the immigration aggravated felony of “crime of violence.” It incorporates the Federal criminal definition of “crime of violence” found in 18 U.S.C. 16. 18 U.S.C. 16 contains two sections, (a) and (b). The question before the Court in Dimaya is whether 18 U.S.C. 16(b) is “unconstitutionally vague” as incorporated into the INA.

List of Current Section 287(g) Agreements Between ICE and Local Authorities

Section 287(g) of the Immigration and Nationality Act (INA) allows for the Secretary of Homeland Security to enter into agreements with State authorities and authorities from subdivisions of States on immigration enforcement. The 287(g) program has been expanded by the Trump Administration. In this post, we include a list of current section 287(g) agreements.