BIA ISSUES NEW PRECEDENT SAYING ORE. BURGLARY OF A DWELLING IS CATEGORICAL CIMT: MATTER OF J-G-D-F-, 27 I&N Dec. 87 (BIA 2017) — Hon. Lory Rosenberg Says They Got It Wrong! — + My “Bonus Analysis!”

https://www.justice.gov/eoir/page/file/990986/download

Here’s the BIA’s Headnote:

“Burglary of a dwelling in violation of section 164.225 of the Oregon Revised Statutes is a crime involving moral turpitude, even though the statute does not require that a person be present at the time of the offense, provided that the dwelling is at least intermittently occupied.”

PANEL: BIA Appelllate Immigration Judges PAULEY, WENTLAND & O’CONNOR,

DECISION BY: Judge Pauley

Here’s what former BIA Appellate Immigration Judge Lory D. Rosenberg had to say about it on her blog Appeal Matters and on ILW.com:

Lory D. Rosenberg on Appeal Matters

BIA and Reprehensible Determinations

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, 08-18-2017 at 04:53 PM (600 Views)

In Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017), the BIA has ruled that the Oregon crime of burglary of a dwelling is a crime involving moral turpitude (CIMT) even though a defendant can be convicted of burglary under the Oregon statute for entering or remaining in an unoccupied home. The Board’s analysis is somewhat confounding, ultimately favoring a categorical conclusion that is clearly to the disadvantage of those in the respondent’s position.

(In one fell swoop, the BIA rejected the respondent’s request for withholding and deferral of removal under the Convention Against Torture (CAT) on the basis that the respondent failed to identify an acceptable particular social group as the reason for the threat to his life or freedom and fear of torture, ruling that, “he asserted that he would be targeted by criminals because he would be recognized as someone who has lived in the United States for a long period of time based on his clothing and accent. However, this proposed group lacks particularity, because it is amorphous and lacks definable boundaries. As described, the proposed group could include persons of any age, sex, or background.” Id. at 86.)

There are two central issues presented: Does the Oregon statute in question and, if divisible, the crime of which the respondent was convicted under the Oregon statute, amount to a generic burglary? Assuming it amounts to a burglary, is the crime of which the respondent was convicted a CIMT, involving reprehensible conduct and some degree of scienter?

A few comments in response to the precedential aspects of this decision are warranted.

A conviction of the crime of burglary does not make removal inevitable, not only because there may be post-conviction remedies available, but because the underlying offense is not necessarily a crime involving moral turpitude or an aggravated felony conviction.

As we know, burglary convictions must be analyzed according to the state law under which the crime is defined. The elements of the offense described under state law must match the elements contained in the generic definition of burglary, i.e., unlawful entry into or remaining in a building or structure with the intent to commit a crime. Taylor v. U.S., 495 U.S. 575 (1990).

The respondent argued that the statute was overbroad. Although the respondent asserted that “a violation of the statute does not necessarily involve reprehensible conduct or a culpable mental state since it does not require that a defendant unlawfully enter a dwelling or intend to commit a crime involving moral turpitude at the time he or she enters the building,” id.at 83, the BIA rejected the respondent’s arguments.

The BIA concluded instead that the statute was divisible “with respect to whether a first degree burglary offense involved entering or remaining unlawfully in a dwelling, as opposed to a building other than a dwelling.” Id. at 84-85. Cf. Mathis v. United States, 136 S. Ct. 2243,2249 (2016) (deeming a statute to be divisible if “it list[s] elements in the alternative, and thereby define[s] multiple crimes”)

Under section 164.205(2), the term “dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present. However, the BIA ruled that the statute was not divisible as to whether the building was occupied or not, cutting of any examination of the record with respect to that aspect of the crime.

The records in the instant case contained no equivocation regarding the nature of the respondent’s conviction. In fact, once the statute in the instant case was treated as divisible as to “entering or remaining unlawfully,” the record clearly identified the crime of which the respondent was convicted. As the BIA stated expressly, “the judgment and plea agreement for the respondent’s conviction show that he pleaded to “Burglary I” as charged in Count 2 of the charging document, which alleged that the offense occurred ‘in an occupied dwelling.’” Consequently, the BIA affirmed the IJ’s conclusion that, “according to the respondent’s record of conviction, he was convicted under the prong of section 164.225 that requires entering or remaining unlawfully in a “dwelling” with the intent to commit a crime.” Id. at 86.

But that begs the question.

Today’s decision in Matter of J-G-D-F-, expands on the BIA’s prior precedent in Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009), and distorts the longstanding BIA standard requiring that crimes involving moral turpitude must contain “two essential elements: reprehensible conduct and a culpable mental state,” Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016). Prior to Louissant, the BIA honored the reasonable limitation that a crime was to be considered a CIMT only if the crime accompanying the unlawful entry was itself turpitudinous.

In Louissaint, the BIA held that the “conscious and overt act of unlawfully entering or remaining in an occupied dwelling with the intent to commit a crime is inherently ‘reprehensible conduct’ committed ‘with some form of scienter.’” Matter of F-G-D-F-, supra. at 87 (quoting Matter of Louissaint, 24 I&N Dec. at 758 (citation omitted)). The rationale underlying this conclusion was the fact that the building was occupied and the victim’s presence involved an expectation of privacy and security. By drawing the conclusion that every unlawful entry of a dwelling, whether occupied or not at the time of the offense, amounts to “reprehensible conduct” the BIA evades prior caselaw which had focused on the specific crime that was intended. Cf. Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946).

c. 2017 Lory D. Rosenberg, www.Loryrosenberg.com

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Nolan Rappaport  asked me what I think, pointing out that burglary is a serious crime. I agree that burglary is a serious crime, but that doesn’t necessarily answer the question of whether it involves moral turpitude.

As Lory points out, in an early precedent, Matter of M-, 2 I&N Dec. 721 (BIA, AG 1946), the BIA found that the key to moral turpitude in a burglary conviction is not the breaking and entering into the building itself, but the nature of the crime the individual intended to commit following the breaking and entering.

Later, in Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009), the BIA chipped away at the M- rule. The Board focused on the breaking and entering, rather than the crime, and held that burglary of an occupied dwelling is a categorical cimt, without regard to what crime the respondent might have intended.

In Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017) the BIA basically annihilated the M- rule by holding that entry into a dwelling that might be occupied was a categorical cimt without regard to the crime intended.

As a trial judge, I found the M- rule relatively straightforward and easy to apply (or as straightforward and easy to apply as anything in the convoluted cimt area).  Applying that rule to the facts in J-G-D-F-, under the “categorical” approach, the “least possible crime” included in NC first degree burglary would be entry into an unoccupied dwelling in possession of burglary tools. I would find that not to be a cimt.

Applying the Louissaint expansion, I would have concluded because unlike Louissant the dwelling was unoccupied, there was still no cimt.

But, of course applying J-G-D-F-, I would have been required to find a cimt.

So, the current state of the law at the BIA appears to be this. First, apply M– to see if you can find a cimt.

If not, second, see if an occupied dwelling was involved so that the respondent has committed a cimt under Louissaint.
If not, third, see if an unoccupied dwelling might have been involved so that it’s a cimt under J-G-D-F-
Fourth, if all of the foregoing steps fail to produce a cimt, the judge should think of some other rationale for finding a cimt. Because, if the judge doesn’t and the DHS appeals, the BIA will find one anyway. After all, burglary sounds bad.
I find it interesting and somewhat ironic that after the Matter of M- approach gained acceptance from the 9th Circuit, where most petitions to review BIA decisions arise, the BIA has chosen to basically overrule M- without specifically saying so.
In the past decade and one-half, the BIA has often taken the most inclusive position on criminal removal statutes. As a result, the BIA is overruled with some regularity on petitions for review by the Federal Circuit Courts all the way up to the Supreme Court. The latter has been particularly critical of the BIA’s inclusive approach to minor drug convictions.
Notwithstanding this, I wouldn’t expect any change in the BIA’s “hard line approach” to criminal removal under the Sessions regime. After all, the “new mission” of EOIR is to churn out as many final removal orders as possible as quickly as possible with as little due process as possible. And, expansive readings of criminal removal statutes also helps produce more mandatory detention (which Jeff Sessions loves, along with those who are making a killing running private detention centers with substandard conditions).
So from a “job retention” standpoint, getting reversed on review by the Federal Courts probably won’t be a problem for Immigration Judges and Appellate Immigration Judges within DOJ as long as the reversals come in the context of expanding removals and restricting due process.
Finally, I’d never bet against Judge Lory Rosenberg’s analysis on any criminal immigration matter. Lory always had a much better handle on where the Federal Courts were going on criminal removal than the rest of us BIA Appellate Judges, including me. And, over the years since she was forced out of her judicial position, she has been proved right over and over by Federal Courts including the Supremes. Indeed, the Supremes cited one of her dissents in reversing the BIA in St. Cyr (check out FN 52). I’m not aware of any other BIA Appellate Judge who has been cited by name. (Although my good friend and beloved former colleague Judge Wayne Stogner of the New Orleans Immigration Court did get an individual “shout out” for his carefully analyzed trial decision in Nuegusie v. Holder.)
At this point, I’m thinking that Lory’s view will prevail in at least come Circuits. Time will tell.
PWS
08-25-17

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

NEW PRECEDENT: BIA On “Receipt Of Stolen Property” –Matter of ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) — Still Getting It Wrong After All These Years — Read My “Dissenting Opinion!”

https://www.justice.gov/eoir/page/file/970806/download

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

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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.

Paul Wickham Schmidt

Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)

Entered: June 2, 2017

Hon. Lory D. Rosenberg Replies To Nolan Rappaport’s VOICE Article On “Appeal Matters”

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
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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

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PWS

03/02/17