- Discussion of Johnson v. United States: Pages 1-4, 9-13
- Interesting Statistics and Decisions
Each month, the Executive Office for Immigration Review (EOIR) publishes the Immigration Law Advisor. In this article, we will review the December 2016 edition of the Immigration Law Advisor (Vol. 10 No. 9) for its discussion of notable decisions and developments in immigration law. We have provided a link to the issue for your convenience [PDF version].
The feature issue of this edition of the Immigration Law Advisor, authored by Rachel Horowitz, is titled “Peas in a Pod, or Birds of a Different Feather? A Discussion of Johnson v. United States and What It Might Mean for the Immigration and Nationality Act's Crime of Violence Aggravated Felony Provision.”
This article discusses the Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 (2015) [PDF version]. Johnson concerned a provision of the Armed Career Criminal Act (ACCA) — an enhanced sentencing statute — found in 18 U.S.C. 924(e)(2)(B). Specifically, the Court addressed the “residual clause” of the statute that classified any felony “that involves conduct that presents a serious risk of physical injury to another” as a “violent felony.” The Court struck down the residual clause of 18 U.S.C. 924(e)(2)(B) for being “void for vagueness.”
Since Johnson was rendered, Circuit Courts have split on whether its reasoning also applies to the Immigration and Nationality Act's (INA's) incorporation of 18 U.S.C. 16 as its definition for “aggravated felony crime of violence” as found in section 101(a)(43)(F) of the INA because 18 U.S.C. 16(b) contains a residual clause that is similar to that found in section 924(e)(2)(B). Horowitz's article provides a detailed analysis of all of the issues involved and the differing conclusions reached by various Federal circuit courts.
On January 17, 2017, the Supreme Court in Lynch v. Dimaya, 15-1498 will consider the constitutionality of the INA's reliance on 18 U.S.C. 16(b). Please see our full article on the Supreme Court's decision to hear this case [see article]. Furthermore, please see our full article on the Ninth Circuit decision that is being appealed, Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) [PDF version] [see article]. We will post a full analysis of the oral arguments before the Supreme Court once they are completed.
In a separate section of the Immigration Law Advisor, John Guendelsberger wrote about interesting statistics regarding immigration appeals and noteworthy Federal circuit cases from November 2016.
In November of 2016, the Federal circuit courts issued 121 decisions in cases appealed from the BIA. The Circuits affirmed the Board decisions in 111 of those 121 cases. Interestingly, the Third Circuit — which covers New Jersey, Pennsylvania, and Delaware — reversed the Board in 2 of the 4 cases it issued decisions in, giving it the distinction of having the highest reversal rate in November of 2016. 68 of the cases were direct appeals from denials of asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The circuit courts affirmed the Board's decision in 63 of those 68 cases,
Guendelsberger then highlighted notable federal circuit court decisions from November 2016 that may affect immigration law. In this article, we will review a few of the decisions he selected and add additional notes about the decisions themselves.
In United States v. Henderson, 841 F.3d 623 (3d Cir. 2016) [PDF version], the Third Circuit held that 35 Pa. Stat. Ann. 780-113(f)(1) — a statute that criminalizes controlled substance manufacture, delivery, or distribution — may be analyzed under the modified categorical approach. Although this was not an immigration case, a conviction under this criminal statute would carry potentially severe immigration consequences for an alien in the United States. Had the Third Circuit held that the categorical approach must be used; adjudicators would be prohibited from looking at the record of conviction to determine the specific substance involved. In the immigration context, this would be significant because, as Guendelsberger notes, the Pennsylvania statute includes substances that are not on the list of federal controlled substances, which would make it categorically overbroad in the immigration context. However, the Third Circuit decision will allow adjudicators to look at the record if an alien is convicted under the statute to determine whether he or she was convicted with relation to a substance that would trigger immigration violations.
In Larios-Reyes v. Lynch, 843 F.3d 146 (4th Cir. 2016) [PDF version], the Fourth Circuit held that a conviction for a “Third Degree Sex Offense” under Maryland Criminal Law Article 3-307 did not qualify as aggravated felony sexual abuse of a minor under section 101(a)(43)(A) of the INA. The Fourth Circuit analyzed the statute under the categorical approach and found that the statute was not a categorical match with the INA's definition of aggravated felony sexual abuse of a minor because it is not necessary for a conviction under the statute to prove that the abuse was perpetrated for the purpose of sexual gratification.
In Gonzalez-Soto v. Lynch, 841 F.3d 682 (5th Cir. 2016) [PDF version], the Fifth Circuit affirmed the Board's decision to deny withholding of removal because the petitioner in the case failed to demonstrate that he belonged to a “particular social group.” The Fifth Circuit found the Board had been correct in finding that the petitioner would not likely face persecution in Mexico “because the family of a man murdered by his father more than two decades ago allegedly targets him for revenge,” finding that the claim was “speculative.” Secondly, the Fifth Circuit rejected the petitioner's argument that he faced persecution because of his perceived wealth for having lived in the United States. The Fifth Circuit reaffirmed its position from Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012) [PDF version] that “[w]e do not recognize economic extortion as a form of persecution under immigration law, nor do we recognize wealthy [citizens of a different nation] as a protected group.
In Reys v. Lynch, 942 F.3d 1125 (9th Cir. 2016) [PDF version], the Ninth Circuit reviewed the Board's precedent decision in the Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) [PDF version]. The Ninth Circuit gave deference to the Board's definitions of “particularity” and “social distinctions” in the context of demonstrating membership in a “particular social group” for purposes of establishing eligibility for withholding of removal. These definitions pertain to the burden borne by an applicant for asylum and/or withholding of removal or relief under the CAT to demonstrate membership in a “cognizable” social group — that is, one with clear boundaries that society perceives or recognizes persons sharing particular characteristics. However, the Ninth Circuit nevertheless found that the Board had applied an impermissible standard of review in assessing the petitioner's request for CAT relief.
The Eleventh Circuit issued two interesting published decisions on state burglary statutes. In United States v. Esprit, 841 F.3d 1235 (11th Cir. 2016) [PDF version], the Eleventh Circuit held that a Florida burglary conviction under Fla. Stat. 810.02(1)(b)(1) is not a categorical match with generic burglary, and therefore cannot serve as a predicate to ACCA sentencing enhancement. The decision notably cites to the Supreme Court decisions in Johnson (discussed in the first section of this article) and Mathis v. United States, 136 S.Ct. 2243 (2016) [see article]. Although Esprit is not an immigration case, the Eleventh Circuit decision may serve to limit the Florida burglary statute in immigration law. In United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016) [PDF version], the Eleventh Circuit held that a previous iteration of the Georgia burglary statute found in Ga. Code Ann 16-7-1(a) (2011) was categorically overbroad with respect to the place burglarized. However, the Eleventh Circuit held that the statute was divisible to that effect, and that the modified categorical approach could be used to determine the place burglarized. This decision makes Ga. Code Ann 16-7-1(a) (2011) more applicable in immigration law by allowing adjudicators to assess the record of conviction to determine whether the offense was generic burglary.
November produced several significant judicial and administrative precedent decisions that will affect immigration law going forward. To learn about the administrative precedent decisions issued in November of 2016, please see cases 22-24 in the second part of our year-in-review for administrative precedent decisions [see article]. 2017 promises to be a significant year in immigration law, beginning with the Supreme Court's oral arguments on whether 18 U.S.C. 16(b) is “void for vagueness” in the immigration context in section 101(a)(43)(F) of the INA.