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Here’s the BIA headnote:
“The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.”
PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, and Kendall Clark
OPINION BY: Judge Pauley
I respectfully dissent.
The Immigration Judge got it right. Under the “plain meaning” of the statute, the respondent is not an aggravated felon. Therefore, the DHS appeal should be dismissed.
Nearly 17 years ago, when I was Chairman of the BIA, I joined the dissenting opinion of Judge Lory D. Rosenberg in a related case, Matter of Bhata, 22 I&N Dec. 1381 (BIA 2000) https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3437.pdf which is cited by this panel in Matter of Alday-Dominguez. Indeed, the panel relies on Bhata to support it’s incorrect decision.
However, as Judge Rosenberg pointed out cogently in her dissent:
Accordingly, the modifying parenthetical phrase helps only to elucidate the main clause of the provision. Although the language “theft offense” may require our interpretation, the parenthetical must be read according to its own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes that are included within the phrase “theft offense.” United States v. Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace Jovanovich 1977)). Specifically, the parenthetical provides that a “theft offense” encompasses the particular offense of receiving stolen property (which, by implication and judicial interpretation, is not a theft).
Matter of Bhata, supra, at 1396 (Rosenberg, AIJ dissenting).
Clearly, as pointed out by Judge Rosenberg, under a “plain reading” of the statutory language, “receipt of stolen property” is a “subgroup” of a theft offense. Consequently, the unlawfully received property must have been obtained by “theft.” The California statute includes things other than property obtained by theft, specifically objects obtained by “extortion.”
Therefore, under the “categorical approach,” the California statute is broader than the aggravated felony offense described in section 101(a)(43)(G) of the Act. Accordingly, the DHS fails to establish that the respondent is removable under that section. Hence, the Immigration Judge correctly terminated removal proceedings, and the DHS appeal should be dismissed.
The majority is just as wrong today as it was in Bhata. Remarkably, a member of this panel, Judge Guendelsberger, along with Judge Gus Villageliu and Judge Neil Miller, joined our dissent in Bhata. Sadly, over the course of his unjustified exile, followed by re-education, rehabilitation, and reappointment to his Appellate Judgeship, my friend and colleague’s views must have changed since the days when he stood up with the rest of us for respondents’ legal rights against the majority of our colleagues who all too often bought the Government’s arguments, even when they were less than persuasive.
Just this week, in a unanimous decision written by Justice Clarence Thomas, the Supreme Court reinforced the “plain meaning” analysis in applying the categorical approach to an aggravated felony removal provision involving “sexual abuse of a minor.” Esquivel-Quintana v. Sessions, ___ U.S. ___ (2017). Yet, the panel seems “tone-deaf” to the very clear message from Justice Thomas and his colleagues about the impropriety of manipulating clear statutory language to achieve a finding of removal.
In conclusion, the respondent has not been convicted an of an aggravated felony under section 101(a)(43)(G) of the Act by virtue of his conviction for receiving stolen property under the California Penal Code. Consequently, the Immigration Judge reached the correct result, and the DHS appeal should be dismissed.
Therefore, I respectfully dissent from the panel’s decision to sustain the DHS appeal.
Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)
Entered: June 2, 2017
Here’s Lory’s blog reprinted in full with her permission:
Lory D. Rosenberg on Appeal Matters
Why President Trump’s VOICE is Misplaced and Serves No One Draft Blog Entry Edit Blog Entry
by Lrosenberg, 03-02-2017 at 09:14 PM (0 Views)
The VOICE office announced by President Trump in his SOTU speech on Tuesday night is the most disturbing, offensive, and misplaced priority he could have chosen to address the pressing need for immigration reform.
Moreover, it astonishes me how anyone with an understanding of the reality of the overwhelmingly positive immigrant contributions to our workforce, our communities, and our society as a whole could applaud such folly. It is mind-boggling that a person who purports to understand immigration law can honestly praise its introduction. Cf. N. Rappaport, Opinion Contributor, The Hill, “On immigrant crime, Trump’s right. Americans deserve more data” (3/1/17).
Establishment of such a new office panders to unsubstantiated, and in fact, soundly refuted, fears of an immigrant crime wave, and fosters public hysteria that is utterly unfounded. Are there serious crimes committed by immigrants? Yes, although very few are violent offenses. They generally involve violations of state, not federal, law, and they are duly prosecuted and punished in our courts, without regard to the perpetrator’s immigration status. Any claimed value to the victim in connecting ICE to removable aliens for “information” is pure fantasy.
Moreover, proportionately, the immigrant crime rate is minimal compare to the crimes committed by the native population in the United States. See Ewing, W and Rumbaut, R., SPECIAL REPORT The Criminalization of Immigration in the United States, http://www.americanimmigration council.org/research/criminalization-immigration-united-states. A federal program for victims of crime committed by an immigrant as opposed to a United States citizen, erroneously propagates the destructive misconception that immigrants are mostly criminals. Cf. Spenkuch, Jörg L., Understanding the Impact of Immigration on Crime, 16 American Law and Economics Review 1,177-219 (2014), https://doi.org/10.1093/aler/aht017.
As leading scholar on immigrants and crime, Professor Ruben G. Rumbaut has stated,
“It [the VOICE office] will serve further to drive up fear and to sigmatize entire immigrant populations as criminals, using rare anecdotes to publicize misleading claims, even though every research study over many decades shows exactly the opposite: immigrants, including the undocumented, have the lowest crime (both violent and property crimes) and the lowest incarceration rates in the US.”
What is more, the policy changes anticipated since President Trump’s inauguration may dismantle much needed agency resources that support implementation of critical humanitarian and domestic violence efforts, such as VAWA and other critical programs that have been part of DHS’s portfolio. Those are the most important victim support resources that are needed. Information collection and communication can be achieved easily and made available to victims, policymakers, and scholars alike through accurate agency reporting.
There are more than adequate local police programs, as well as private and faith-based programs, available to victims of all crime in their communities. That is where victims will find the information and restitution they may seek. One would think an administration that seeks to reduce the the federal bureaucracy and rely upon the states to address all but those problems that demand federal intervention would shrink from imposing a duplicative and unnecessary venture that is likely to offer little more than one night of celebrity in a television audience.
Trump’s self-indulgent VOICE office paints a target on the backs of honorable, hard-working immigrants – and others who look like immigrants – in our population. He may derive satisfaction from the publicity of such a pointless gesture, but the office’s establishment does nothing to reform a deeply broken system that victimizes immigrants and citizens alike each day that nothing is done to reform it.
c.2017 Lory D. Rosenberg
Nolan writes in The Hill:
“The VOICE office will create a programmatic liaison between ICE and victims of crimes committed by removable aliens. The objective is to facilitate engagement with the victims and their families to ensure, to the extent permitted by law, that they are provided with information about the offender, including the offender’s immigration status and custody status.
Secretary Kelly funds this program by ordering the director of ICE to reallocate the resources currently used to advocate on behalf of undocumented aliens (except to comply with a judicial order) to the new VOICE Office, and to terminate outreach and advocacy services to undocumented aliens immediately.
VOICE is not a completely new idea. ICE established a Victim Assistance Program in 2008, but it has worked primarily with victims of human trafficking.
A Huffington Post contributor says, “Let’s call this what it is: VOICE is racist government propaganda.” He claims that VOICE will embroil the media and the public in a constant debate about the merits of immigration in the United States.
Even if the contributor is right about President Trump’s intention in creating this program, and I do not think he is, I applaud the president’s attempt to help crime victims.
Moreover, I believe that the public is entitled to more information about crimes committed by immigrants, particularly the ones who are here in violation of our immigration laws. Then, we will be able to let the facts speak for themselves.”
Nolan informs me that his article made “The Hill’s Top Five Hit Parade.” Congratulations to Nolan, and many thanks for his timely and highly readable scholarship on immigration and politics.
Note that to fund VOICE, DHS will terminate all outreach programs aimed at assisting undocumented individuals involved in various DHS processes.
“The question before the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency’s reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.
. . . . .
In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana’s crime constituted “sexual abuse of a minor” under the immigration laws. The justices’ questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.”
Amanda Terkel reports:
“President Donald Trump’s administration announced on Wednesday that it will no longer bar schools from discriminating against transgender students, rescinding a policy put in place by the previous administration.
“The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX. The Department of Education and the Department of Justice therefore have withdrawn the guidance,” Attorney General Jeff Sessions said in a statement. “Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue. The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.”
In May, under President Barack Obama, the departments of Education and Justice issued guidance mandating that any school that receives federal money must treat a student’s gender identity as his or her sex. Schools, for example, would therefore have to allow transgender individuals to use the restroom that corresponds to their gender identity, rather than the sex assigned to them at birth.
The federal government said at the time that transgender students were covered under Title IX, the statute that prohibits discrimination on the basis of sex. This interpretation had been on hold, however, after more than a dozen states sued the Obama administration and a judge issued an injunction in August.
Education Secretary Betsy DeVos was reportedly against rescinding the order and initially resisted signing off on it, but Sessions pushed her to do so because both departments had to agree in order to move forward.
In a statement Wednesday, DeVos said she considered protecting all students, including lesbian, gay, bisexual, transgender and queer students, “not only a key priority for the Department, but for every school in America.”
“This is an issue best solved at the state and local level. Schools, communities, and families can find ― and in many cases have found ― solutions that protect all students,” she added.
White House press secretary Sean Spicer argued during his press briefing earlier Wednesday that Title IX does not apply to transgender issues because there was no discussion of gender identity when the statute was passed in 1972. Judges and justices, however, often interpret laws and the Constitution to apply to new issues that arise.”
Sure didn’t take Jeff Sessions long to prove his critics correct — that he is totally unqualified to hold the job of the nation ‘s chief lawyer and protector of “equal justice for all.” And, as someone from Alabama, with its sordid history of misuse of the rule of law against African Americans, Sessions knows exactly what the code term “States’ Rights” means. At least he made Betsy DeVos look almost, but not quite, good by comparison.
Rev. Al Sharpton writes in a guest piece on HuffPost:
“Today, President Trump toured the Smithsonian’s National Museum of African American History and Culture, where he was shown everything from slavery to the present day ― depicting both the ugliness in our past and the progress that we have achieved. As one who has toured the museum (and even has two or three photos in it), I have taken great pride in attending events there and showing people various parts of this unusually important institution. My immediate reaction to Trump’s visit was cynical; that it’s just a photo op, and it’s a way for him to get by some of his policies that are clearly bigoted and exclusionary. But on the other side, it is good that he went and at least saw some of the history that makes many of us look at him through the eyes of people that have felt trumped all of their lives and the lives of their forefathers. The real question now is, how will the Trump era be viewed in that museum?
We are a little over a month into Trump’s Presidency, and there are many unanswered questions as to how he will proceed when it comes to issues impacting our communities. As the president immediately following Barack Obama ― the first African American president ― will Trump want to be in that museum as the one who reversed progress like unemployment being cut in half for Blacks, or implementation of the Affordable Care Act that disproportionately helped Blacks? Will he want to be the one who turns back from an emphasis on criminal justice reform, including police reform and Obama’s commutations of low-level offenders more than the last 11 presidents combined? Does he want to be remembered as the President that removed protection of voting rights and instead tried to reverse it with more suppression tactics like voter ID laws?
President Trump should keep in mind today and going forward that he will be in that museum one day alongside others. He can go down surprising everyone by continuing to ensure that the arc is bent towards justice, or he can be another one who tried to bend the arc back in the wrong direction. Will he be the first President in modern history that didn’t meet with the Congressional Black Caucus, or heads of major civil rights organizations (even though they may be critical of some of some of his policies)? He should reflect on the Museum of African American History and Culture and realize that the corridor of history is longer than an election cycle.
Black history is American history. Trump should realize that he cannot only look at black history, but that he will be in it.”
I must confess that I haven’t always been a big fan of Rev. Al Sharpton. But, he is right that history will eventually judge President Trump.
Does Trump really want to be on the wrong side of social ands political progress? Does he really want a to be remembered for a presidency based largely on a white minority demographic that did not represent the real America with all of its diversity, talent, and energy?
I’ll also admit that I don’t always “get” President Trump. In the clip I posted this morning about “Dreamers” http://immigrationcourtside.com/2017/02/21/president-trump-takes-very-nuanced-approach-to-daca-retention-see-the-video-clip-from-cnn/
the President could have been channeling my thoughts when I looked out at the “Dreamers” who came before me in Immigration Court: wonderful kids, lots of courage and determination, over-achievers, the future of America, remind me of my own kids and their goals and aspirations and my grandchildren, the only real difference the accident of place of birth.
The only place I might have differed with the President is on the “bad guys.” He thinks that more of them got into DACA than I do.
I actually found that the much-maligned DHS/USCIS did a very good job of getting the right kids into the program. In almost all cases, the “good kids” got DACA, while those with some significant problems in their records came back for me to deal with in court.
No system is perfect, but having observed and been involved with the DHS/”Legacy INS” over more than four decades, DACA appeared to be one of the best and most effective programs that the immigration authorities had ever developed and implemented!
At any rate, I don’t get why President Trump can’t see that most (not all) other migrants here without legal status are pretty much the same as the DACA kids. In my experience, the overwhelming majority are decent, hard working, law abiding individuals who are making our country a better place and basically want the same things the rest of us do: safety, stability, food on the table, opportunity, and a decent future for their kids. Nothing very nefarious or threatening there.
There are obviously folks advising the President who have some wrong-headed views on race, diversity, and the real strength of America. He put them there, so one has to assume they reflect his views.
Yet, I can’t help but wish that President Trump would break out of his “inner circle” and get to know the migrants, both documented and undocumented, and ethnic minorities who have built and comprise the real America. That would be his best chance of making America great and leaving a great legacy.
“(CNN)High-level advisers close to then-presidential nominee Donald Trump were in constant communication during the campaign with Russians known to US intelligence, multiple current and former intelligence, law enforcement and administration officials tell CNN.
President-elect Trump and then-President Barack Obama were both briefed on details of the extensive communications between suspected Russian operatives and people associated with the Trump campaign and the Trump business, according to US officials familiar with the matter.
Both the frequency of the communications during early summer and the proximity to Trump of those involved “raised a red flag” with US intelligence and law enforcement, according to these officials. The communications were intercepted during routine intelligence collection targeting Russian officials and other Russian nationals known to US intelligence.
Among several senior Trump advisers regularly communicating with Russian nationals were then-campaign manager Paul Manafort and then-adviser Michael Flynn.
Officials emphasized that communications between campaign staff and representatives of foreign governments are not unusual. However, these communications stood out to investigators due to the frequency and the level of the Trump advisers involved. Investigators have not reached a judgment on the intent of those conversations.
Adding to US investigators’ concerns were intercepted communications between Russian officials before and after the election discussing their belief that they had special access to Trump, two law enforcement officials tell CNN. These officials cautioned the Russians could have been exaggerating their access.”
This is story that is unlikely to go away any time soon.