WRONG AGAIN: BIA ERRED IN FINDING THAT NV “CONSPIRACY TO POSSESS DRUGS” IS A BASIS FOR REMOVAL — VILLAVICENCIO V. SESSIONS

Julio Villavicienco Decision Published_

Villavicienco v. Sessions, 9th Cir., 01-05-18, published

STAFF HEADNOTE:

“The panel granted Julio Cesar Villavicencio’s petition for review of the Board of Immigration Appeals decision, concluding that Villavicencio was not removable for a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i) because the statutes under which he was convicted of conspiracy to possess drugs, Nevada Revised Statutes §§ 199.480 and 454.351, are overbroad and indivisible.

The panel held that the Nevada conspiracy statute, NRS § 199.480, is overbroad when compared to the generic definition of conspiracy because the Nevada statute lacks the requisite “overt act” element. Therefore, the panel concluded that the categorical approach may not be used to determine removability. The panel also concluded that application of the modified categorical approach is foreclosed because this court has already determined that NRS § 199.480 is indivisible.

The panel further held that NRS § 454.351, which covers any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act, is categorically overbroad relative to the substances controlled under 21 U.S.C. § 802. The panel also concluded that, although the Nevada statute lists multiple means of violation, i.e., possessing, procuring, or manufacturing,

because jurors need not agree on the means of the violation, the statute must still be regarded as indivisible. Accordingly, the panel held that the statute cannot be used as a predicate offense to support removal

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”

PANEL: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit Judges, and William H. Stafford, Jr.,* District Judge.

* The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation.

OPINION BY: Judge Rawlinson

KEY QUOTE:

“Villavicencio was not removable under 8 USC § 1227(a)(2)(B)(i). N.R.S. §§ 199.480 and 454.351 are both overbroad. N.R.S. § 199.480 criminalizes a broader range of conduct than is described in the generic definition of conspiracy, and N.R.S. § 454.351 encompasses a wider range of substances than those set forth in the federal Controlled Substances Act. Because neither statute is divisible, the modified categorical approach was unavailable to determine if Villavicencio was convicted of a removable offense. As a result, Villavicencio is entitled to his requested relief reversing the determination of removability.”

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Admittedly, this is complicated stuff. But, the BIA is supposed to have “special expertise.”

Given the complexity of these determinations, how could an unrepresented immigrant ever hope to present a defense like this? (Look at the list of pro bono counsel who appeared for the respondent in this case!) How can Removal Hearings conducted where only the DHS is represented by counsel possibly comply with Due Process? (Particularly in light of the recent memo from the Chief Immigration Judge “reminding” Immigration Judges not to “act as counsel” for unrepresented respondents.) How can intentionally detaining immigrants and establishing so-called “courts” in detention centers in out-of-the-way locations where pro bono counsel are known to be generally unavailable possibly comply with Due Process? Why aren’t Immigration Judges and the BIA taking the time and doing the research to get cases like this right in the first place? How does Sessions’s exclusive emphasis on “peddling faster” and “churning out” more final removal orders effectively address the glaring systemic “quality control” problems exposed by cases like this?

PWS

01-06-17

 

 

9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

9TH CIR Lin v. Sessions, 9th, Credibility

Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished

PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION: PER CURIAM

KEY QUOTE:

“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.

As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility

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finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding

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documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.

After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).

In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily

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eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”

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You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.

Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.

No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.

This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.

All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.

We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.

PWS

10-29-17

 

9th Circuit Reverses BIA, Says CAL Fleeing From A Police Officer Not A Categorical CIMT! — Ramirez-Contreras v. Sessions — Read My Mini-Essay “Hard Times In The Ivory Tower”

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Here is the summary prepared by the court staff:

“Immigration

The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.

In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.

Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.

The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”

Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

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HARD TIMES IN THE IVORY TOWER

by Paul Wickham Schmidt

The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.

In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.

Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose  views span the entire “real world” of immigration jurisprudence.

Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.

PWS

06-09-17