HERE’S THE FUTURE AS SESSIONS DUMBS DOWN, SPEEDS UP, SKEWS THE LAW, AND DE-PROFESSIONALIZES IMMIGRATION COURTS – 4th Circuit Slams BIA’s Sloppy Analytical Work, Refuses Deference, Reverses, & Remands — Ramirez v. Sessions

Ramirez v. Sessions, 4th Cir., 04-17-18, Published

PANEL: GREGORY, Chief Judge, MOTZ and TRAXLER, Circuit Judges

OPINION BY: CHIEF JUDGE GREGORY

SUMMARY (From Chief Judge Gregory’s opinion):

Jose Ramirez seeks review of the decision of the Board of Immigration Appeals (BIA) finding him ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). Specifically, the question is whether Ramirez’s convictions for obstruction of justice pursuant to Va. Code Ann. § 18.2- 460(A) qualify as crimes involving moral turpitude (CIMTs). We hold that obstruction of justice under § 18.2-460(A) is not a CIMT because it may be committed without fraud, deception, or any other aggravating element that shocks the public conscience. We therefore grant Ramirez’s petition for review, vacate the BIA’s order of removal, and remand with directions for the Government to facilitate Ramirez’s return to the United States to participate in further proceedings.

KEY QUOTE:

In relation to those cases, the BIA’s one-member decision in this case attempts to significantly expand the definition of a CIMT by removing deceit, a critical indicator of moral turpitude, from the equation. Since this non-precedential decision departs from, rather than relies on, precedential BIA decisions, it is not eligible for Chevron review.

In the absence of Chevron deference, the weight given to a BIA decision “hinges on ‘the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (quoting Martinez, 740 F.3d at 909–10); see Mead, 533 U.S. at 221. Here, the BIA provides only three sentences of analysis that are conclusory in nature and disregards the agency’s prior emphasis on fraud or deceit as a critical determinant without identifying an alternative aggravator. Consequently, the BIA decision is also undeserving of so-calledSkidmore respect because it lacks the power to persuade. See Mead, 533 U.S. at 221.

In sum, under Chevron, BIA decisions defining morally turpitudinous conduct are controlling if they are precedential and reasonable. However, the BIA’s interpretations of laws that it does not administer, such as the Virginia obstruction of justice statute, and its non-precedential decisions are only given weight to the extent that this Court finds the reasoning persuasive. Here, because we do not find persuasive the BIA’s abbreviated and non-precedential opinion, we do not accord it any deference.

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As we saw during the Bush Administration, “haste makes waste” procedures imposed by the DOJ at the Immigration Courts and the BIA are likely to cause a rebellion in the Article III Courts as they are presented with sloppy work including inadequate factual analyses, incorrect fact-findings, and abbreviated, deficient legal analyses. Factors such as pressure to render more “contemporaneous oral decisions” at the end of the hearing without reviewing the full record and testimony as well as single-judge BIA decisions or “summary affirmances” without opinion aggravate the problem.

As the quantity increases and quality decreases, the Article III Courts will lose confidence in the ImmigratIon Courts and begin returning large numbers of cases for “quality control redos” — something that adds to delay and increases backlogs as well as demoralizing Immigration Judges and frustrating respondents and counsel on both sides.

At some point, I foresee that attorneys for respondents should succeed in convincing the Article III Courts that the BIA no longer qualifies as an “expert tribunal” and that its decisions therefore should not receive so-called “Chevron deference.” Session’s use of his certification power to interfere in judicial decisions is also highly problematic.

Jeff Sessions is neither a judge nor by any stretch of the imagination an unbiased quasi-judicial decision maker. Indeed any Article III or Administrative Judge who made some of the untrue and pejorative statements about migrants, asylum seekers, private attorneys, and the law that Sessions has publicly made since becoming the Attorney General would certainly be required to disqualify himself or herself from a quasi-judicial role in any immigration adjudication.

There is no possibility of a fair, unbiased, due process oriented Immigration Court system under Jeff Sessions and the DOJ.

We have “seen this show before” under Ashcroft and the Bush Administration. Congress seriously disregards its responsibilities by standing by and watching disaster unfold again with hundreds of thousands of lives, and perhaps the stability of our entire Federal Judicial System, at stake.

PWS

04-19-18

BIA BUSTED AGAIN — 4TH CIR REAMS MATTER OF JIMINEZ-CEDILLO, 27 I&N DEC. 1 (BIA 2017) — Jiminez-Cedillo v. Sessions, March 20, 2018, Published — Unexplained Departure From Prior Rulings!

Jiminez-Cedillo v. Sessions, 4th Cir., March 20, 2018, Published

PANEL: Circuit Judges Thacker and Harris; Senior Circuit Judge Shedd

OPINION: Judge Pamela Harris

SUMMARY (FROM LEXISNEXIS IMMIGRATION COMMUNITY):

03-20-2018 | 12:47 PM
Author: Daniel M. Kowalski

CA4 Vacates , 27 I&N Dec. 1 (BIA 2017)

Jimenez-Cedillo v. Sessions – “Pedro Josue Jimenez-Cedillo, a native and citizen of Mexico, was ordered removed from the United States after the Board of Immigration Appeals determined that sexual solicitation of a minor in Maryland, to which Jimenez-Cedillo pled guilty, is a crime involving moral turpitude. Under Maryland law, sexual solicitation of a minor does not require that the perpetrator know the victim’s age. And before this case, under Board of Immigration Appeals precedent, a sexual offense against a child categorically involved moral turpitude only if the perpetrator knew or should have known that the victim was a minor. Because the Board failed to explain its change in position, we grant Jimenez-Cedillo’s petition for review and remand for further proceedings. … Here, we are without a reasoned explanation from the Board for its change in position. … Because the Board’s “path” from the Silva-Trevino cases to Jimenez-Cedillo’s cannot “reasonably be discerned,” its decision is arbitrary and capricious and must be set aside. … If on remand the Board takes the position that a change in Silva-Trevino I’s approach to mental culpability is appropriate, then it also should consider whether, under the traditional factors that bear on retroactivity analysis, see ARA Servs., Inc. v. NLRB, 71 F.3d 129, 135–36 (4th Cir. 1995) (citing Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 389–90 (D.C. Cir. 1972)), that new position may be applied to Jimenez-Cedillo and other aliens similarly situated.”

Here’s a link to the oral argument.

Hats way off to Ben Winograd (argued) and Helen L. Parsonage (on brief)!

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Go on over to Dan Kowalski at LexisNexis Immigration Communities for all the links to the full decision and more! https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/20/ca4-vacates-matter-of-jimenez-cedillo-27-i-amp-n-dec-1-bia-2017.aspx?Redirected=true

Congrats to my friends Ben Winograd and Helen Parsonage for holding the BIA accountable once again!

The BIA is caught improperly creating a harder, anti-immigrant line of legal precedent without complying with the basic legal requirements — like legal analysis!

A “real” Attorney General would certainly: 1) slow down the “Falls Church assembly line;” and 2) insist that the BIA take the time and care necessary to insure that its decisions, particularly published precedents, comply with basic legal and analytical requirements. That’s essentially “Due Process 101.”

Instead, White Nationalist xenophobe Jeff Sessions actually is taking steps to make the a system with the “wheels coming off” go even faster and to truncate full hearings and proper legal analysis, while attempting — without providing basic due process — to change long-standing substantive rules of law to further screw migrants. How sick is this Dude!? How disgusting is it that he carries out his destructive agenda without any meaningful oversight by Congress?

The best way to solve this unacceptable situation, before our entire legal system is in shambles, is to see that both the individuals responsible for placing Jeff Sessions in office and those who have abdicated their duties to oversee his activities are removed from office through the ballot box. We know who is responsible for these miscarriages of justice. Now is the time to insure that they are no longer able to carry out their program of destroying America!

Join the New Due Process Army! Due Process Forever!

PWS

03-21-19

2D CIR. ZAPS BIA ON RETROACTIVITY — OBEYA V. SESSIONS

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/09/ca2-on-retroactivity-obeya-v-sessions.aspx

Dan Kowalski, Editor @ LexisNexis Immigration Community sends this item:

Obeya v. Sessions, Mar. 8, 2018 – “Clement Obeya, a lawful permanent resident of the United States, was convicted of petit larceny under New York law. The government sought to remove Obeya for his conviction, treating it as a “crime involving moral turpitude.” The Immigration Judge and Board of Immigration Appeals found that Obeya was removable based on his conviction, but this Court remanded due to the agency’s failure to apply BIA precedent holding that larceny involves moral turpitude only when it is committed with the intent to deprive the owner of property permanently. On remand, the BIA again found Obeya removable, holding that his offense involved moral turpitude by applying a new rule, announced in another case that same day, expanding the types of larceny that qualify as such crimes. Obeya challenges the BIA’s retroactive application of that rule to his case. We GRANT review and REVERSE the BIA’s order.”

[Hats off to Richard W. Mark!]

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Go on over to LexisNexis at the above link for the link to the 2d Circuit’s full decision.

As Gonzo & Co. move to speed up the Deportation Railway, the current quality control problems evident at the BIA, illustrated by decisions like this, will be multiplied.

PWS

08-09-18

MAX BOOT @ WASHPOST: A KLEPTOCRACY OF GRIFTERS – THE TRUMP ADMINISTRATION — “[T]here have been more crooked regimes — but only in banana republics. The corruption and malfeasance of the Trump administration is unprecedented in U.S. history.”

https://www.washingtonpost.com/opinions/the-trump-administrations-no-good-very-bad-wednesday/2018/03/01/7dc60fd2-1d69-11e8-ae5a-16e60e4605f3_story.html

Max Boot reports from The Swamp for the Washington Post:

“One of the great non-mysteries of the Trump administration is why Cabinet members think they can behave like aristocrats at the court of the Sun King. The Department of Housing and Urban Development spent $31,000 for a dining set for Secretary Ben Carson’s office while programs for the poor were being slashed. The Environmental Protection Agency has been paying for Administrator Scott Pruitt to fly first class and be protected by a squadron of bodyguards so he doesn’t have to mix with the great unwashed in economy class. The Department of Veterans Affairs spent $122,334 for Secretary David Shulkin and his wife to take what looks like a pleasure trip to Europe last summer; Shulkin’s chief of staff is accused of doctoring emails and lying about what happened. The Department of Health and Human Services paid more than $400,000 for then-Secretary Tom Price to charter private aircraft — a scandal that forced his resignation.

Why would Cabinet members act any differently when they are serving in the least ethical administration in our history? The “our” is important, because there have been more crooked regimes — but only in banana republics. The corruption and malfeasance of the Trump administration is unprecedented in U.S. history. The only points of comparison are the Gilded Age scandals of the Grant administration, Teapot Dome under the Harding administration, and Watergate and the bribe-taking of Vice President Spiro Agnew during the Nixon administration. But this administration is already in an unethical league of its own. The misconduct revealed during just one day this week — Wednesday — was worse than what presidents normally experience during an entire term.

The day began with a typically deranged tweet from President Trump: “Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. . . . Why not use Justice Department lawyers? DISGRACEFUL!” Translation: Trump is exercised that the Justice Department is following its normal procedures. Sessions fired back: “As long as I am the Attorney General, I will continue to discharge my duties with integrity and honor.” Translation: The president is asking him to act without “integrity and honor.”

This is part of a long pattern of the president pressuring the “beleaguered” Sessions — a.k.a. “Mr. Magoo” — to misuse his authority to shut down the special counsel investigation of Trump and to launch investigations of Trump’s political foes. Because Sessions won’t do that, Trump has tried to force him from office. The president does not recognize that he is doing anything improper. He thinks the attorney general should be his private lawyer. The poor man has no idea of what the “rule of law” even means, as he showed at a White House meeting Wednesday on gun control, during which he said: “Take the guns first, go through due process second.” This from a supposed supporter of the Second Amendment.

But wait. Wednesday’s disgraceful news was only beginning. Later in the day the New York Times reported that Jared Kushner’s family company had received hundreds of millions of dollars in loans from companies whose executives met with him in his capacity as a senior White House aide. The previous day, The Post had reported that officials in the United Arab Emirates, China, Israel and Mexico had discussed how they could manipulate the president’s son-in-law “by taking advantage of his complex business arrangements, financial difficulties and lack of foreign policy experience.” Oh, and don’t forget that during the transition in 2016, while Kushner was trying to refinance a family-owned office building, he met with a Russian bankerclose to the Kremlin and with executives of a Chinese insurance company that has since been taken over by the Chinese government.

President Trump’s nepotism has compromised U.S. standing in the world, says Post editorial page editor Fred Hiatt. (The Washington Post)

Little wonder that the previous week Kushner lost his top-secret security clearance. The wonder is that a senior aide with such dodgy business dealings was allowed access for a full year to the government’s most sensitive secrets — and that he still works in the White House. This is the kind of nepotism that plagues dictatorships and is a defining characteristic of Trump’s kleptocratic rule.

Of course, we are still only scratching the surface of administration scandals. This is a president, after all, whose communications director quit on Wednesday after admitting to lying (but insists her resignation was unrelated); whose senior staff included an alleged wife-beater; whose former national security adviser and deputy campaign manager have pleaded guilty to felonies; whose onetime campaign chairman faces 27 criminal charges, including conspiracy against the United States; whose attorney paid off a porn star; and whose son mixed family and government business on a trip to India. Given the ethical direction set by this president, it’s a wonder that his Cabinet officers aren’t stealing spoons from their official dining rooms. Come to think of it, maybe someone should look into that.”

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The total ugliness, dishonesty, corruption, and lack of accountability of the Trumpsters is hard to contemplate. Everybody mentioned in this article probably belongs in jail. Other than that, though, they’re a great bunch of guys. Check those pockets and briefcases for the spoons! Draining The Swamp indeed!

PWS

03-02-18

WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

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Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

BIA HEADNOTE:

“Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, and MALPHRUS

OPINION BY: Judge Roger A. Pauley

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Pretty straight forward. There was a so-called “Circuit split.” Given alternative choices, the BIA almost always chooses the interpretation most favorable to the DHS and least favorable to the respondent.

Hence, the respondent loses, the BIA doesn’t “rock the boat,” the Office of Immigration Litigation can defend the most restrictive position in the Courts of Appeals and, if necessary, before the Supremes, Jeff Sessions remains happy, and BIA judges retain their jobs.

The only losers: Due Process, fairness, and the respondent. But, who cares about them anyway? It’s all about maximizing removals.

PWS

02-27-18

SATURDAY SATIRE WITH ANDY BOROWITZ @ THE NEW YORKER — “Trump Gives Wife Beater Praise He Usually Reserves for Child Molesters and Nazis”

https://www.newyorker.com/humor/borowitz-report/trump-gives-wife-beater-praise-he-usually-reserves-for-child-molesters-and-nazis?mbid=nl_Borowitz%20021018&CNDID=48297443&spMailingID=12907428&spUserID=MjQ1NjUyMTUwNjY5S0&spJobID=1340850260&spReportId=MTM0MDg1MDI2MAS2

“Trump Gives Wife Beater Praise He Usually Reserves for Child Molesters and Nazis

By Andy Borowitz

February 9, 2018

Photograph by Joe Raedle / Getty

WASHINGTON (The Borowitz Report)—In comments to reporters at the White House on Friday, Donald J. Trump stirred controversy by lavishing an alleged wife beater with praise that he historically has reserved for child molesters and Nazis.

Reporters who heard the President’s comments were taken aback since, in the past, the President had given no indication that he held wife beaters in the same high esteem in which he holds supporters of child abuse and white supremacy.

“We knew that President Trump considered child molesters and Nazis very fine people, but this was the first time he had put wife beaters up there, too,” Tracy Klugian, a member of the White House press corps, said. “We wanted clarification as to whether he considered wife beaters as fine as those other two groups, or finer.”

John Kelly, the White House chief of staff, accused reporters of attempting to drive a wedge between three of the President’s most cherished constituencies.

“Donald Trump has made it very clear that he can be the champion of wife beaters, child molesters, and Nazis at the same time,” Kelly said. “He doesn’t play favorites.”

START YOUR WEDNESDAY WITH SOME UPLIFTING BREAKING NEWS – IT’S A GREAT DAY FOR THE USA: 1) Alabama Comes Through For U.S. By Electing Democrat Doug Jones To US Senate; 2) Aaron Rodgers Cleared To Return To Pack & Will Start Against The Carolina Panthers on Sunday! –- “Ayatollah Roy” Will Not Be Bringing His Agenda Of Bigotry, Hate, & Un-American Views & His Total Scumbag Persona To Washington – One Of America’s Favorite — & Most Fun To Watch – Sports Stars Will Return To “Primetime!”

First, we can all thank Senator Elect Doug Jones and the voters of Alabama for saving America from the horrible spectacle and damage that would have been caused by the election of the heinous bigot, liar, slanderer, racist, homophobe, xenophobe, theocrat of a false religion, coward, scofflaw, and apparent sexual predator Roy Moore. Jones’s election is a striking rebuke to that other sleazy, corrupt, dishonest, bigoted unrepentant sexual predator in America, Trump. And, by narrowing the GOP advantage in the Senate to a razor-thin 51-49, it raises the possibility that the Democrats with the help of just two responsible Republicans could block substantial parts of Trump’s and the GOP’s insane “War on America” and protect us from some of Trump’s worst excesses.

How ironic that White Nationalist and “Jim Crow relic” Attorney General Jeff “Gonzo Apocalyopto” Sessions is being replaced by a by a competent and decent person who believes in American democracy and governing for the “common good” rather than as an out of touch ideologue with a strong anti-American, anti-Diversity, hate promoting agenda.

It’s also ironic that Jones has done the GOP a favor by relieving them of the lengthy circus of both expelling him from their party and ultimately removing him from the Senate. Anything short of that would have been a continuing embarrassment for the party. Quite contrary to Trump’s outrageous statements in support of the Ayatollah, any vote that a party wins because of support of a total scumbag like Moore damages that party as well as our country. (It does, however, raise in my mind the question of when they are going to expel the anti-American, racist, bigot Steve King from their party. There is no room in any major party for the likes of King.)

Hats off to the African-American community in Alabama who were not deterred by the Sessions/GOP voter suppression anti-Civil Rights initiatives and showed up in the numbers required to make a difference in the election. After being shut out of their fair share of political power in Alabama for over 300 years, African-Americans are finally in a position to make their voices and feelings heard in the U.S. Senate.

Also, hats off to GOP Southern Senators Richard Shelby of Alabama and Tim Scott of South Carolina for standing up and “Just Saying No” to the Moore nonsense. As pointed out by Shelby, Alabama could do better than Ayatollah Roy (not a very high hurdle), and they now have in the person of Doug Jones.

Hopefully, Jones will over time find a way to “win over” most of those misguided souls who voted for Ayatollah Roy notwithstanding the very credible evidence of sexual misconduct with minors in his past, his arrogant “not credible” defense, the clear lies that he told in attempting to smear those who came forward, and his scofflaw, anti-American views. What a jerk!

Here’s the Washington Post’s editorial on Jones’s stunning upset:

https://www.washingtonpost.com/opinions/thank-you-alabama/2017/12/12/176388de-df64-11e7-bbd0-9dfb2e37492a_story.html?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory&utm_term=.4ea2f1920de1

“THANK YOU, Alabama.

In Tuesday’s special election, the state by a narrow margin chose to spare the nation the indignity of seating an accused child molester in the U.S. Senate. Though the stain of electing Republican Roy Moore would have sullied Alabama, seemingly confirming every negative stereotype about the Deep South state, the shame would have been national. Instead, Alabama voters chose Democrat Doug Jones to represent them until 2021.

Mr. Jones is not in perfect sync with many Alabama voters on some issues, most notably abortion. But he is an honorable man with an admirable record of public service who ran a respectful campaign. His behavior suggests he will serve with decency and care in the Senate. He should make his state proud. None of these fine things could have been said of Mr. Moore. It is beyond heartening that Alabamians refused to overlook or forgive Mr. Moore’s misshapen character.

Even before woman after woman shared stories of Mr. Moore preying on them when they were teenagers and he was in his 30s, Mr. Moore had disqualified himself from serving in public office. As Alabama’s Supreme Court chief justice, Mr. Moore twice flouted federal court rulings simply because he did not like them. He had long stood for lawlessness and disorder. He called for “homosexual conduct” to be outlawed, said a Muslim should not be seated in Congress and waxed nostalgic for the era of slavery. But most egregious were the tales of traumas Mr. Moore inflicted on teenage girls.

Mr. Jones’s victory shows that, while partisanship might be extreme, it still has limits. Even in deep-red Alabama, enough voters refused to succumb to lies about how negative stories on Mr. Moore were merely fake news cooked up by a hostile media.

Americans do not send senators to Washington merely to vote mechanically on a few hot-button issues, but to exercise judgment when cameras are not rolling, on issues that are important but not headline-grabbing. Good lawmakers also protect the nation’s democratic institutions, preserve the independence of their branch of government and work with people with whom they disagree. It takes character to fulfill these responsibilities. Mr. Jones seems ready to do such work. Mr. Moore did not.

Mr. Jones’s victory also suggests that the nation’s recent awakening on sexual harassment and assault is spreading across the country. Enough Alabamians believed the women.

If Americans should feel grateful to Alabama voters, so should the Republican Party, much of which debased itself by following President Trump into the gutter of support for Mr. Moore. Its majority in the Senate will be slightly narrower, but the dignity of the Senate GOP caucus will be at least partially salvaged. Alabama voters spared the Senate Ethics Committee the dilemma of how to handle a senator who was clearly unfit but who nevertheless won a popular election. Instead of inviting controversy and chaos, they elected Mr. Jones, a man who deserves the honor.

Thanks to Alabama, Americans can wake up Wednesday morning feeling hopeful about the decency and dignity of their democracy.”

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On to the other big story, Aaron Rodgers (“AR”). AR’s recovery from a broken collarbone which required surgery, two plates, and 13 screws is about as amazing as Jones’s victory.

AR is a smart player, tough guy, and great competitor. It’s certainly possible that he will be able to lead the Pack (currently 7-6 and “on the outside looking in” for a playoff spot) to a sweep of the final three games and a possible playoff birth. But, certainly no “slam dunk!”

The O line will have to do a perfect job of protecting AR. He will have to suppress his tendency to run with the football when nobody is open and the Pack needs a first down.

If the Pack should lose to the Panthers on Sunday, they will have to make a decision on whether to play AR in the final two games. A defeat would pretty much end any realistic hope of the playoffs this year. So, it might make sense to let backup Brett Hundley (3-4 as a starter in AR’s absence) start the last two games. On the other hand, being the competitor that he is, AR will want to play.

Congrats to AR on his return, good luck, and stay tuned.

Here’s a report from the Green Bay Press Gazette on AR’s return:

http://www.greenbaypressgazette.com/story/sports/nfl/packers/2017/12/12/silence-prevails-packers-ponder-aaron-rodgers-decision/943774001/

“The news catapults the Packers’ playoff chances from a pipe dream to a legitimate possibility with three games remaining. Conventional wisdom says the Packers must win all three — at Carolina, vs. Minnesota and at Detroit — to have a chance at a wild card in the top-heavy NFC. Accomplishing that feat with Brett Hundley at quarterback was unlikely after he won just three games in seven starts; but with Rodgers the odds shift dramatically.

Beginning Wednesday, Rodgers will have three days of practice to prepare for his first game since Oct. 15, when a hit from Minnesota Vikings linebacker Anthony Barr resulted in a broken right collarbone. Rodgers underwent surgery in California to stabilize the fracture, and the Packers ultimately placed him on injured reserve. He returned to practice on a limited basis Dec. 2 and spent the last two weeks running the scout team, dazzling his teammates each day.

His initial return meant nothing, though, if Rodgers could not be medically cleared. He underwent a series of scans Monday to reveal the progress of his collarbone, and the interpretations of those scans by team physician Patrick McKenzie, several outside specialists and general manager Ted Thompson would determine whether the risk of further injury would be worth the reward of having Rodgers for a potential playoff run.

For a while it appeared bleak. Monday came and went with nothing but party-line comments by coach Mike McCarthy, who reiterated during a news conference that any decision on Rodgers’ future would be made by medical professionals. That Rodgers spun the football during pregame at Heinz Field or zinged passes in the Don Hutson Center was irrelevant, just as his assistant coaching efforts in Cleveland did nothing but reinforce his passion.

With Tuesday morning came additional silence, and social media wondered if the lengthy delay lessened Rodgers’ chances of returning. But the results of his scans were sent to specialists around the country, in multiple time zones, and the coordination of gathering various opinions certainly influenced the timeline. It’s quite possible that Rodgers’ surgeon in California, who at this point is unidentified, had a large say in the discussion.

If nothing else, the painstaking deliberation surrounding Rodgers’ health captures the importance of franchise quarterbacks, and in particular elite franchise quarterbacks. In breadth alone the discussion might have stretched to a dozen people: McKenzie, Thompson, McCarthy, the doctor who performed surgery, several outside experts and, of course, Rodgers himself. The crew needed 36 hours to probe the conundrum from various angles.

Everything started, of course, with the fairly black-and-white question of whether Rodgers’ collarbone had calcified since two plates and 13 screws were inserted to stabilize the fracture eight weeks ago. Enough time had passed for the bone to heal significantly, though perhaps not entirely, and therein lies the gray area for whoever reviewed the scans. How sturdy must his collarbone be to withstand the punishment of 300-pound defensive linemen or hard-charging linebackers?

There were also football questions that clouded the equation. At 7-6, the Packers must win out to have a realistic shot at the playoffs — and even then, they could fall short. Why risk Rodgers’ throwing shoulder when the Packers don’t control their postseason destiny? Surely that question irked the conscience of Thompson, whose conservative disposition is well-documented in Green Bay.

One has to wonder if the two-day uncertainty weighed on Hundley as well. With Sunday’s win over the Browns came the cleansing exhale of accomplishing his primary job: keeping the Packers in playoff contention until Rodgers was eligible to return. He achieved that feat with consecutive overtime victories that cast light on his moxie.

But narrow escapes against the Browns and Buccaneers bear little resemblance to the challenge of the next three weeks. To beat the Panthers (9-4), Vikings (10-3) and Lions (7-6) — two of which are on the road — the Packers will need reinforcements.

As it turns out, that’s just what the doctor ordered.”

Not often these days that we get to wake up to good news. Go Doug, go AR, go Pack, go America!

PWS

12/13/17

IMMIGRANT PREVAILS AT BIA ON CIMT – NY Criminally Negligent Homicide Not a Categorical CIMT – Matter Of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017)

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Matter Of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017).

BIA HEADNOTE:

“Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.”

BIA PANEL: Appellate Immigration Judges COLE, PAULEY, and WENDTLAND.

OPINION BY: Judge Pauley

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PWS

10-17-17

5TH CIR BONKS BIA: Misdemeanor Evading Arrest Under Texas Penal Code § 38.04 (2011) Is NOT A CIMT! — Laryea v. Sessions

-5thCIMT

Laryea v. Sessions, 5th Cir., 09-12-17 (unpublished — sadly)

PANEL:

DAVIS, GRAVES, and COSTA, Circuit Judges.

PER CURIAM

KEY QUOTE:

“Here, examining the record of conviction, Laryea was convicted of a Class A misdemeanor, which does not involve flight using a vehicle. We hold that fleeing from a police officer, without more, does not rise to the level of moral turpitude because it is not “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”21 Therefore, we find that the conduct involved in Laryea’s offense, “intentionally flee[ing] from a person he knows is a peace officer

attempting lawfully to arrest or detain him,” is not a CIMT.”

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The standard for crimes involving moral turpitude seems to me to be completely subjective and highly arbitrary. Hard to see how it passes constitutional muster, but it has, over many years. Interestingly, it appears that this Respondent was able to file his own petition for review. I wonder if he had “informal help.”

PWS

09-14-17

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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Lrosenberg

, 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

GOBBLEDYGOOK CENTRAL: After 12 Years Kicking Around The System, 9th Circuit Declines Chevron Deference To Matter of Cortez Canales, 25 I. & N. Dec. 301 (BIA 2010) & Punts Issue Back To BIA — Lozano-Arredondo v. Sessions — Why “Chevron Must Go!” — Somewhere In This Judicially-Created Mess, It’s All About A 2-Decades Old “Petty Theft” Conviction!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf

Key quote:

“We grant Lozano-Arredondo’s petition and remand to the BIA. We hold, first, that petit theft under Idaho law does not qualify categorically as a crime involving moral turpitude. We also hold that under the modified categorical approach, the record of conviction is inconclusive. Because the effect of that inconclusive record presents an open legal question now pending before another panel of this court, our analysis ends there. On remand, once this burden of proof question is resolved, the BIA should determine whether Lozano- Arredondo’s conviction qualifies as a crime involving moral turpitude under the modified categorical approach, unless the case is resolved on other grounds.

Second, we hold the BIA erred by deciding at Chevron step one that an “offense under” § 1227(a)(2)(A)(i) does not include the within-five-years element. Because the BIA “erroneously contends that Congress’ intent has been clearly

24 LOZANO-ARREDONDO V. SESSIONS

expressed and has rested on that ground, we remand to require the agency to consider the question afresh.” Delgado, 648 F.3d at 1103–04 n.12 (quoting Negusie, 555 U.S. at 523) (internal quotation marks omitted); see INS v. Ventura, 537 U.S. 12, 16–17 (2002). In light of this holding and the explanations we have given, the BIA must reconsider its interpretation of the phrase “offense under” in § 1229b(b)(1)(C).”

PANEL: Circuit Judges William A. Fletcher, Raymond C. Fisher and N. Randy Smith

OPINION BY: Judge Fisher

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Com’ on Man! This case has been around the system since 2005 — 12 years! The conviction is now two decades old. The case depends on two legal questions.

The 9th Circuit should answer the legal questions and either 1) affirm the BIA’s final order of removal, or 2) remand the case to the BIA to apply the law that has been determined by the 9th Circuit to the facts of this case. The court’s prose is impenetrable; the court’s rationale, based on Chevron, is irrational.

It’s time for Chevron to go and for Article III Courts to do their job of deciding legal questions rather than bogging down the system with infinite delays through needless remands to have the BIA pass on difficult legal questions. That’s the Article III Courts’ Constitutional function; they have been avoiding it for years under the Supreme’s judge-made facade of Chevron and Brand X.

(Yes, I know the 9th Circuit is only following Chevron, as they are bound to do. This is something the Supremes need to address, sooner rather than later. The result in this case is pure legal obfuscation.)

Oh yeah, while we’re at it, if there is an “open legal question” before another panel of the 9th Circuit, why remand the case to the BIA which can’t resolve that? Why not send this case to the “other panel” or ask your colleagues on the other panel if they could expedite their consideration of this issue?

PWS

08-08-17

3rd Cir. “Just Says No” To DOJ Request For Remand To Give BIA Chance To Misconstrue Statute — PA misdemeanor count of obstructing the administration of law or other governmental function is categorically NOT a CIMT — Ildefonso-Candelario v. Atty. Gen.

http://www2.ca3.uscourts.gov/opinarch/163625p.pdf

Key quote:

“Instead of defending the conclusion that section 5101 is categorically a crime involving moral turpitude, the government requests a remand without decision to permit the BIA to reconsider its position in the matter. See Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006); see generally SKF USA Inc. v. United States, 254 F.3d 1022, 1027-30 (Fed. Cir. 2001) (outlining approaches to agency remand requests). The government points out that the BIA is generally entitled to Chevron deference for reasonable interpretations of ambiguous terms, Mehboob, 549 F.3d at 275, and theorizes that the BIA might conjure up an interpretation of the term “moral turpitude” enabling a conclusion that section 5101 categorically involves “conduct that is inherently base, vile, or depraved,” Knapik, 384 F.3d at 89.

Yet the government has been unable, either in its brief or at oral argument, to articulate any understanding of the phrase “crime involving moral turpitude” that could plausibly encompass section 5101. This is not because of a failure of imagination. It instead reflects the simple fact that there is no conceivable way to describe the least culpable conduct covered by section 5101 — such as the illegal but nonviolent political protest described in Ripley — as inherently vile, or as “a reprehensible act committed with an appreciable level of consciousness or deliberation.” Partyka, 417 F.3d at 414. Moreover, no “emerging case law,” Ren, 440 F.3d at 448, involving either section 5101 or the definition of moral turpitude in other contexts calls for giving the BIA a second bite at the apple. See Jean-Louis, 582 F.3d at 469 (declining to remand where the relevant legal materials, including BIA decisions, “lead[] inexorably to the conclusion” that an offense is not morally turpitudinous).

Under the circumstances, we see no reason for remanding without correcting the legal error apparent on the face of the petition. See Mayorga v. Att’y Gen., 757 F.3d 126, 134 (3d Cir. 2014); cf. City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013) (“[W]here Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.”). We thus deny the government’s request for a voluntary remand and hold that 18 Pa. Cons. Stat. § 5101 is not categorically a crime involving moral turpitude.”

PANEL: JORDAN, KRAUSE, Circuit Judges and STEARNS, District Judge.

OPINION BY: JUDGE STEARNS

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Looks like the 3rd Circuit is starting to get the picture on how the BIA, under pressure from the politicos in the DOJ to produce more removals, has a strong tendency to construe the law against respondents and in favor of just about any DHS position that will facilitate removals.

That’s why it’s time for the Article III Courts to put an end to Chevron and the pro-Government, anti-individual results that it favors. “Captive” administrative tribunals responsible to Executive Branch politicos can’t be trusted to fairly and independently construe ambiguous statutory language. That’s properly the job of the Article III Courts; they have been shirking it for far too long! The Supremes have essentially reversed the results of Chief Justice John Marshall’s “victory” over President Thomas Jefferson in Marbury v. Madison!

PWS

08-04-17

NEW PRECEDENT: BIA FINDS THAT SOLICITING AN UNDERCOVER POLICE OFFICER COUNTS AS SOLICITING A “MINOR” UNDER ADAM WALSH ACT — MATTER OF IZAGUIRRE, 27 I&N DEC. 67 (BIA 2017)

https://www.justice.gov/eoir/page/file/983601/download

BIA Headnote:

“An offense may be a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 592, even if it involved an undercover police officer posing as a minor, rather than an actual minor.”

BIA PANEL: Vice Chair/Appellate Immigration Judge Adkins-Blanc; Appellate Immigration Judges Guendelsberger and Mann

OPINION BY: Judge Ana L. Mann

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PWS

07-22-17

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.

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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

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