"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Sent: Friday, July 31, 2020 4:16 PM
To: ICLINIC@LIST.MSU.EDU; Immigration Law Professors List
Subject: [immprof] FW: victory in Johnson v. Barr – Colorado possession statute overbroad and indivisble!!!
team,
a huge victory today for one of our clients, and hopefully many other folks in our community.
in Johnson v. Barr, the 10th circuit ruled that the Colorado statute of possession of a controlled substance is overboard as to the federal schedule and indivisible as to the particular controlled substance within a schedule.
the court honed in on the categorical approach, looking first to the plain language of the statute, the penalties assigned under the statute, its unpublished decision in Arellano, and persuasive state case law in deciding in our favor.
-this means that no conviction for possession of a schedule I or II CS can support the CS grounds of inadmissibility or deportability. this will hopefully help countless people who were found inadmissible, deportable, subject to mandatory detention, and ineligible for relief to seek redress of those legal errors.
-by extension, this decision is likely to apply to simply possession of a schedule III-V because it is also overbroad and structured nearly identically to the possession statute at issue in Johnson. moreover, due to legislative change last year classifying all PCS of schedule I-V CS as a DM1 offense starting in 2020, all future PCS offenses are likely also overbroad and indivisible.
this is definitely a day to celebrate. we will see whether the govt seeks rehearing or cert.
As noted by Hans, this decision could have “big-time” impact and result in numerous motions to reopen and “redos.” It’s just another example of how the gimmicks and misinterpretations used and encouraged by the Trump regime as part of their “haste makes waste” deport everyone policies actually create backlogs and waste resources while doing grave injustices.
America needs an independent Article I U.S. Immigration Court with real expert judges, with a commitment to human rights and due process,dedicated to seeing that individual results are fair and just, rather than carrying out a perverted, race and hate driven nativist political agenda to maximize deportations in disregard of the law.
Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)
BIA HEADNOTE:
Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.
PANEL: Appellate Immigration JudgesMALPHRUS, MANN, and KELLY
OPINION BY: Judge Ana L. Mann
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Seems to me the BIA got this one all wrong. The Florida statute was amended specifically to broaden the definition of “marihuana” to include things that aren’t marihuana. How can the BIA say that there is no chance of prosecution? Since stalks, etc. are now “marihuana” it wouldn’t even be a defense to point out that you just possessed stalks.
The BIA has twisted item the concept of “far fetched” to include things that the legislature clearly contemplated when amending the statute.
The Supreme’s decision in Moncrieffe was clearly intended to be ameliorative. But the BIA has turned it into a “sword” for DHS. Moreover, since “stalks only” would no longer be a defense, why would any state case discuss it?
Generally the “Ferreira test” is impossible for any unrepresented respondent to meet. Indeed, I doubt that most detention center judges would have access to the necessary materials to research something so technical.
As my good friend and colleague in the Roundtable of Retired Judges, Judge Jeff Chase, added:
The Supreme Court and some of the circuits created case law that was designed to be clearer – i.e. it doesn’t matter what the respondent actually did, or what the actual sentence was, just look at the least culpable behavior covered by the statute.And the Supremes and some circuits obviously intended it to be ameliorative, given the harsh consequences of the immigration laws.
The BIA sees its mission as trying to render those higher court decisions meaningless.
How far we have come from an organization supposdly dedicated to using teamwork and best practices to “guarantee fairness and Due Process for all.”
(1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.
(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.
KEY QUOTE FROM JUDGE O’CONNOR’S CONCURRING OPINION:
“So while I do not disagree with the point made by the majority and the DHS about avoiding absurd results, I unfortunately do not find it to be persuasive. This statement alone is a sad commentary on the state of affairs when it comes to making criminal law determinations in immigration proceedings and is an earnest call for a congressional fix to the mess we currently find ourselves in. See United States v. Fish, 758 F.3d 1, 17–18 (1st Cir. 2014) (collecting cases that call on Congress to “rescue the federal courts from the mire into which . . . [the] ‘categorical approach’ [has] pushed [them]” (quoting Chambers v. United States, 555 U.S. 122, 131–32 (2009) (Alito, J., concurring))); Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (noting the “continued congressional inaction in the face of a system that each year proves more unworkable”).
Finally, it bears noting that the Third Circuit has already found § 860 to be the proper Federal analogue to section 2C:35-7, albeit in an unpublished decision. See Chang-Cruz, 659 F. App’x 114. In that decision, the Government conceded that this was the case, and having lost the divisibility battle there, the DHS now seeks to use § 841 to argue that section 2C:35-7 is categorically an aggravated felony drug trafficking crime. Although I do not disagree with the majority that such an approach is permissible, I do so with reservations over how much more complicated categorical determinations may become for adjudicators who must now decide what is an “appropriate Federal analogue” and consider that analogue, or any permissible combination of such analogues, in discerning whether a State offense is a felony under the Controlled Substances Act. These determinations are difficult enough for an immigration system that is already overburdened. In the words of Justice Alito, “I wish them good luck.” Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).”
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Bottom line:
The respondent loses (of course);
The law is too complicated; and
Judge O’Connor thinks it should be unnecessary to go through all this rigmarole because this is a “bad guy” whom Congress clearly intended to kick out without recourse.
If anyone can explain the legal gibberish in this case further to me in plain English in 25 words or fewer, please do!
I get the point that the law has become too complex. But, this discussion seems to bypass the real problem in cases like this that has been “lost in space.”
How would an unrepresented, detained individual who doesn’t speak English properly defend him or herself in a case like this. The clear answer: they couldn’t, since even the “expert judges” in the Ivory (or Glass) Towers with their teams of cracker-jack law clerks are struggling with this stuff. Therefore, in the absence of counsel, appointed if necessary, these hearings before the Immigration Judges are nothing but judicial farces, theaters of the absurd, that mock due process and fairness and trample our Constitution. Samuel Beckett, Luigi Pirandello, Friedrich Dürrenmatt, and friends would be proud of what’s been accomplished in our 21st Century immigration system!
That’s the problem to which both Congress and the Article III Appellate Courts need to wake up before it’s too late. In the meantime, please explain to me just how Sessions’s “pedal faster, schedule more, cut corners” approach to the Immigration Courts is helping to solve this problem?
“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.
