Tag: INA “Conviction”

BARR’S TWO LATEST PRECEDENTS CONTINUE TO ERODE IMMIGRATION JUDGES’ DISCRETION & INDIVIDUALS’ ABILITY TO AVOID DEPORTATION — Matter of Castillo-Perez & Matter of Thomas & Thompson!

Matter of Castillo-Perez: https://www.justice.gov/eoir/page/file/1213196/download

 

Key section:

 

For the reasons set forth below, I affirm the Board’s order. I conclude that, when assessing an alien’s good moral character under INA § 101(f), 8 U.S.C. § 1101(f), evidence of two or more DUI convictions during the relevant period establishes a rebuttable presumption that the alien lacked good moral character during that time. Because the Attorney General may only cancel removal of an alien who has been a person of good moral character during a 10-year period, see INA § 240A(b), 8 U.S.C. § 1229b(b), such evidence also presumptively establishes that the alien is not eligible for that relief. Here, because the evidence of the respondent’s efforts to rehabilitate himself is insufficient to overcome this presumption, the Board correctly vacated the immigration judge’s decision to grant cancellation of removal.

 

Matter of Michael Vernon Thomas & Matter of Joseph Lloyd Thompson: https://www.justice.gov/eoir/page/file/1213201/download

 

Key section:

The INA assigns clear immigration consequences to an alien who has been convicted and sentenced for a state crime, yet the Board has adopted multiple tests that permit state courts to change those results well after the fact. Although a state court may alter a state conviction for appropriate reasons under state law, the state court does not have the authority to make immigration-law determinations. In view of these considerations, I conclude that the Pickering test should apply to state-court orders that modify, clarify, or otherwise alter the term of imprisonment or sentence associated with a state-court conviction. As a result, such alterations will have legal effect for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding, but not if they are based on reasons unrelated to the merits, such as rehabilitation or immigration hardship. Matter of Cota-Vargas, Matter of Song, and Matter of Estrada must therefore be overruled.

 

Alexei Woltornist

Public Affairs Officer

Department of Justice

Cell: (202)598-5281

Office: (202)514-2016

***********************************

Matter of Castillo-Perez effectively precludes most individuals with two (or more) DUIs from getting cancellation of removal. Obviously, the AG perceived this to be a significant problem. I don’t know how many cases like this are actually granted. Perhaps it would allow the BIA and the IJs to decline to reopen more cases if the Respondent could not show prima facie evidence that he or she could overcome the “presumption.”

Matter of Thomas & Thompson restricts a fairly common device used to avoid the harsh immigration consequences of a criminal conviction. Criminal court judges and even prosecutors are often willing to make slight “after the fact” sentence modifications to avoid deportation in sympathetic cases. Under this ruling, that will only work if there is a “non-immigration” reason for the modification — much more difficult to establish.

Taken together these cases are part of a continuing effort by the AGs under Trump to 1) limit the ability of Immigration Judges to grant discretionary relief based on hardship or equities, and 2) make it more difficult for individuals to avoid deportation. It might also allow Immigration Judges to deny more requests for relief summarily, without full hearings to consider all the equities.

To me, neither change seems “astounding” in and of itself. Rather, they are part of a continuum of efforts to restrict discretion and make it more difficult for individuals to avoid deportation based on equities in the U.S. 

Notably, the Trump AGs have never intervened to rule in favor of an individual. All of their certification rulings favor DHS enforcement. 

This is notable in a system where the prosecutor selects, directs, and can fire or reassign the judges. Not surprisingly, the vast majority of published precedents already favor DHS enforcement. Now, the prosecutor apparently intends to systematically overrule or limit those few precedents that have given individuals hope of a favorable resolution of their cases.

PWS

P10-26-19

Related posts:

  1. 1ST CIR. THWARTS BIA’S ATTEMPT TO USE “SUA SPONTE” AUTHORITY TO COVER UP ARBITRARINESS, BIAS, & CLEAR LEGAL ERROR! — Thompson v. Barr
  2. 🏴‍☠️☠️👎🏻BILLY’S BIA BLOWS ANOTHER — After Two Trips to The 8th Cir. Over 5 Years, The BIA Is Batting .000 — Ortiz v. Barr — CIMT
  3. BAD NEWS FOR  BIGOTLAND: Even As Billy The Bigot Blatantly Bashes The “Categorical Approach,” 10th Cir. Blasts Billy’s Biased BIA’s Bogus Blowing Of Same To Illegally Deport Under CO Controlled Substances Law! 
  4. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

BIA STANDS UP TO 5TH CIRCUIT‘S IDOCY ON “CONVICTIONS” — MATTER OF MARQUEZ CONDE, 27 I&N Dec. 251 (BIA 2018) — This Is How The System Could & Should Work

Marquez3923

Matter of MARQUEZ-CONDE, 27 I&N Dec. 251 (BIA 2018)

BIA HEADNOTE:

The Board of Immigration Appeals’ holding in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), regarding the validity of vacated convictions for immigration purposes, is reaffirmed, and the decision is modified to give it nationwide application. Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), not followed.

PANEL; BIA VICE CHAIR JUDGE CHARLES ADKINS-BLANCH; BIA APPELLATE IMMIGRATION JUDGES ANA MANN, EDWARD KELLY

OPINION BY: JUDGE ADKINS-BLANCH, VICE CHAIR

KEY QUOTE:

In Renteria-Gonzalez, the United States Court of Appeals for the Fifth Circuit reasoned that because Congress was silent regarding vacated convictions when it defined the term “conviction” in section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2000), it did not intend to include an exception for vacated convictions. Id. at 813. However, as the parties have noted on appeal, Judge Benavides issued a concurring opinion in Renteria-Gonzalez v. INS that he disagreed with the majority’s analysis because it “paint[ed] with too broad a brush with respect to whether a vacated conviction falls within the purview of the definition” of a conviction. Id. at 820 (Benavides, J., specially concurring). Although he agreed with the result, Judge Benavides asserted that “any indication in the majority opinion that a conviction vacated based on the merits constitutes a conviction under [section 101(a)(48)(A) of the Act] is entirely dicta in that the case at bar did not involve such a vacatur.” Id. at 823 n.4. He therefore concluded that he would distinguish the vacatur in that case “from cases involving convictions vacated because of a defect in the criminal proceedings.” Id. at 822.

*******************************************

Kudos to the BIA for providing this important guidance. Remarkably, the Immigration Judge “ran over” a joint motion by the DHS and respondent’s counsel to reach the absurd result below!

As for the two Fifth Circuit judges who ruled that a conviction vacated on the merits remains a “conviction,” as one of my bosses used to say “What did they teach you at that law school?”

As those who read this blog know, normally I’m not a fan of Chevron or Brand X. But, here they seem to have saved the day from some pretty incompetent/biased judging from some “Article IIIs.’

PWS

04-08-18

 

 

Related posts:

  1. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. 🏴‍☠️☠️🤮⚰️🆘AMERICA’S SHAME — NATIONAL DISGRACE – SYSTEMIC INSTITUTIONAL FAILURE: From Supremes Who Abandoned Their Key Precedent In Cardoza-Fonseca, To A 5th Cir. Court Of Appeals That Shirked Its Duty To Protect Refugees, To A “Don’t Rock The Boat” BIA That Failed To Enforce Uniformity, To Unqualified & Biased Immigration “Judges” Who Created Illegal, “Asylum-Free Zones,” The U.S. Asylum System Was In Deep Trouble Even Before Trump – Under Trump, It Has Become A “Killing Floor” Programmed To Intentionally Deny & Deport Deserving Refugees To Death, Torture, Or Grotesque Mistreatment, As Indolent, Cloistered Article IIIs, Unwilling To Dig In & Stop The Slaughter Look On!

BIA SHOWS AGAIN HOW YOU DON’T HAVE TO BE CONVICTED TO BE “CONVICTED” UNDER THE INA: Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017)

3900

BIA HEADNOTE:

“Entry into a pretrial intervention agreement under Texas law qualifies as a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES GRANT, PAULEY, MANN

OPINION BY: JUDGE GRANT

*********************************

Under the INA state criminal proceedings cannot be “relitigated” in U.S. Immigration Court. States go to great lengths to relieve certain first or minor offenders of the legal consequences of a conviction. But, at that point, the INA ditches out state determinations and imposes its own broad definition of “conviction.” Rule: Whatever is necessary to screw the migrant!

PWS

09-07-17

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. ICE’S “IN YOUR FACE” COURTHOUSE ARREST POLICY ERODES OUR CONSTITUTOINAL SYSTEM OF JUSTICE!
  3. SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!
  4. HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!