7TH FINDS BIA MISAPPLIED SUPREME’S MONCRIEFFE DECISION — IL MARIHUANA CONVICTION NOT DRUG TRAFFICKING CRIME — MING WEI CHEN V. SESSIONS

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-20/C:17-1130:J:Wood:aut:T:fnOp:N:1997576:S:

“The Board erred by reading Moncrieffe as if that decision interpreted the CSA’s term “small amount.” Nothing in Moncrieffe supports the conclusion that the possession of a tad more than 30 grams of marijuana—the lowest amount punishable under 720 ILCS § 550/5(d)—can never be punished as a federal misdemeanor. The Board erred as a matter of law in this respect, when it found that Chen’s conviction under that provision qualifies as an aggravated felony.

We GRANT the petition for review and remand to give the Board the opportunity to decide whether to exercise its discretion to grant cancellation of removal.”

PANEL:

WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges.

OPINION BY: Chief Judge Wood

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Will the BIA, the DOJ, and the DHS ever get the Supreme’s message on trying to expand the reach of the aggravated felony provisions to crimes that really aren’t aggravated, and sometimes aren’t even felonies?

PWS

07-21-17

 

11th Cir. — BIA GETS IT WRONG AGAIN ON MODIFIED CATEGORICAL APPROACH & AGFEL — GORDON V. ATTORNEY GENERAL

http://media.ca11.uscourts.gov/opinions/pub/files/201513846.pdf

Key quote:

“Further, the Board’s conclusion that the crime was an aggravated felony because the sale or delivery was “for monetary consideration” is meritless. That the sale or delivery was “for monetary consideration” does nothing to assist us in determining “which of a statute’s alternative elements”—sale or delivery— “formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284. The Supreme Court has made clear time and time again that “[a]n alien’s actual conduct is irrelevant to the inquiry.” Mellouli, 135 S. Ct. at 1986. As the Board did not appropriately determine that Gordon was convicted of an aggravated felony, we grant Gordon’s petition and reject the Board’s finding of removability.”

PANEL: Circuit,Judges Tjoflat, Wilson; District Judge Robreno

INION BY: Judge Tjoflat

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So, why does an “expert tribunal” like the BIA keep getting this fairly basic stuff wrong? And, why has the DOJ eliminated EOIR training?

PWS

07-13-17

2D CIR Raps BIA, USIJ For Applying Wrong Tests For Agfel —- NY 5th Degree Sale Of A Controlled Substance Not A “Drug Trafficking Crime” — Respondent Eligible For Cancellation — KENNARD GARVIN HARBIN v. JEFFERSON SESSIONS III

http://caselaw.findlaw.com/us-2nd-circuit/1865217.html

“We hold that NYPL § 220.31 defines a single crime and is therefore an “indivisible” statute. Accordingly, the agency should have applied the so-called “categorical approach,” which looks to the statutory definition of the offense of conviction, rather than the particulars of an individual’s behavior, to determine whether a prior conviction constitutes an aggravated felony. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Now applying the categorical approach, we conclude that Harbin’s conviction under the NYPL § 220.31 did not constitute a commission of an aggravated felony. Harbin’s § 220.31 conviction therefore did not bar him from seeking cancellation of removal and asylum.”

PANEL: Circuit Judges CABRANES, POOLER, and PARKER.

OPINION BY:  Judge Pooler.

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When will they ever learn, when will they ever learn? Attempts by U.S. Immigration Judges and the BIA to “blow by” proper application of “divisibility analysis” and the “categorical approach” in an effort to maximize removals under the “aggravated felony” provisions of the INA continue to draw criticism from higher court judges. However, they probably are “less career threatening” with respect to the BIA’s relationship to their political bosses at the DOJ. Whoever heard of a due process court system being owned and operated by the chief prosecutor? And, nobody can doubt that Attorney General Jeff Sessions sees himself as the Chief Prosecutor of migrants in the United States. But, to be fair, the last Attorney General to actually attempt to let the BIA function as an an independent quasi-judicial body was the late Janet Reno. And, that was 17 years ago.

PWS

06-23-17

BIA Requests Amicus Briefing On Modified Categorical Approach & CIMT — Deadline Is July 12, 2017

https://www.justice.gov/eoir/page/file/972601/download

June 12, 2017, Amicus Invitation Amicus Invitation No. 17-06-12 AMICUS INVITATION (MODIFIED CATEGORICAL APPROACH & CIMTS) DUE [JULY 12, 2017] JUNE 12, 2017 The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s): ISSUE(S) PRESENTED: (1) Is the Board precluded from applying a modified categorical analysis for an indivisible or means-based statute within the context of crime involving moral turpitude (CIMT) determinations, when the requirement in question is whether the involved conduct is reprehensible, which is a subjective determination that is not an element of the state offense? (2) Do the “three basic reasons for adhering to an elements-only inquiry,” Mathis v. United States, 136 S. Ct. 2243, 2252-53 (2016), have force in the CIMT context? (3) Do the answers to the first two questions require modification of the Board’s decision in Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), and if so, how? Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual. Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation. Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear and brief. Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

June 12, 2017, Amicus Invitation Amicus Invitation No. 17-06-12 AMICUS INVITATION (MODIFIED CATEGORICAL APPROACH & CIMTS) DUE [JULY 12, 2017] JUNE 12, 2017 The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s): ISSUE(S) PRESENTED: (1) Is the Board precluded from applying a modified categorical analysis for an indivisible or means-based statute within the context of crime involving moral turpitude (CIMT) determinations, when the requirement in question is whether the involved conduct is reprehensible, which is a subjective determination that is not an element of the state offense? (2) Do the “three basic reasons for adhering to an elements-only inquiry,” Mathis v. United States, 136 S. Ct. 2243, 2252-53 (2016), have force in the CIMT context? (3) Do the answers to the first two questions require modification of the Board’s decision in Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), and if so, how? Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual. Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation. Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear and brief. Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

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PWS

06-14-17 Continue reading BIA Requests Amicus Briefing On Modified Categorical Approach & CIMT — Deadline Is July 12, 2017

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