Wake Forest Law Review
8Feb

Fourth Circuit Denies Petition for Review in Deportation Case

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By Anthony Biraglia

In the civil case of Etienne v. Lynch, the Fourth Circuit denied a petition to review an Immigration Board of Appeals decision ordering Eddy Etienne (“Etienne”) to be removed from the United States on the ground that he is an alien who has been convicted of an “aggravated felony.” After determining that jurisdiction existed, the Court turned to Etienne’s argument that his conviction was not an “aggravated felony” under the Immigration and Nationality Act (“INA”). In a published opinion released on December 30, 2015, the Fourth Circuit found that there was no reason to rebut the common-law presumption when interpreting the term “conspiracy,” and thus found Etienne’s conviction for conspiracy under Maryland law to fit within the definition of “aggravated felony” despite Maryland’s lack of an overt act requirement.

DHS Notice of Removal

Etienne entered the United States from Haiti as an undocumented immigrant in 1984. In 1996, Etienne was convicted of conspiracy to violate Maryland’s dangerous controlled substances law. After his release from prison, he continued to live in the United States as an undocumented immigrant until 2010, when he received Temporary Protected Status after an earthquake in Haiti. After denying Etienne renewal of his Temporary Protective Status in 2014, the Department of Homeland Security (“DHS”) initiated removal proceedings by serving Etienne with a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). The Notice of Intent stated that Etienne would be removed pursuant to expedited procedures as an alien convicted of an “aggravated felony.” Etienne checked a box on the form indicating he wished to challenge his removal, but did not attach any supporting documents or contest his removal on the ground that his conviction was not an “aggravated felony” under the statute. DHS later issued a Final Administrative Removal Order for Etienne’s removal. Etienne appealed to the Fourth Circuit after an asylum officer and Immigration Judge (“IJ”) determined that Etienne did not qualify for withholding of removal.

Jurisdictional Question

The Court first considered whether it had jurisdiction over Etienne’s petition for review. The jurisdictional question turned on whether Etienne exhausted his administrative remedies with DHS, which in turned rested on whether Etienne was required to have raised his claim that his conviction did not constitute an “aggravated felony” in DHS proceedings. Etienne argued, and the Court agreed, that DHS’s expedited removal proceedings did not provide an opportunity to challenge the legal basis for that removal.

The Notice of Intent gives aliens four options when contesting removal on the basis of deportability: 1) I am a citizen or national of the United States, 2) I am a lawful permanent resident of the United States, 3) I was not convicted of the criminal offense described above, 4) I am attaching documents in support of my rebuttal and request for further review. The Court held both that this language indicates that only factual challenges are available and that the Notice of Intent offers no obvious opportunity to raise legal challenges in expedited removal proceedings. Because exhaustion of administrative remedies only requires that an alien use all the steps the agency holds out, and the agency did not make it clear that legal challenges must be raised during removal proceedings, the Fourth Circuit determined that it had jurisdiction to consider Etienne’s petition for review.

Etienne’s Conspiracy Conviction Was an “Aggravated Felony” Under the INA 

After concluding that it had jurisdiction, the Fourth Circuit turned to the question of whether Etienne’s 1996 conviction in Maryland of conspiracy to violate controlled substances laws was an “aggravated felony” under the INA. The INA’s definition of “aggravated felony” includes illicit trafficking in a controlled substance and “conspiracy to commit” another “aggravated felony.” Whether Etienne’s conviction falls within this definition turned on whether, under the categorical approach, the term “conspiracy” is defined as it was at common law or by the contemporary meaning of the term, which includes an additional overt act requirement. The categorical approach involves looking only at the elements of a state crime, rather than the defendant’s underlying conduct, to determine whether a particular conviction constitutes an “aggravated felony.” If the elements are the same, the prior conviction counts as an “aggravated felony.”

The Court recognized a general presumption that Congress intends to adopt the common law meaning of statutory terms. At common law, “conspiracy” required only the act of conspiring rather than any overt act to further the conspiracy. One-third of the states retain the common law definition, while the other states require an overt act by the defendant to prove conspiracy. Congress evinced an intent that the INA apply broad when it defined “aggravated” offenses as applying to violations of state and federal law, and thus the Fourth Circuit determined that overriding the common law presumption would lead to the anomalous result that the term “conspiracy” would be null and void as to a third of the states.

Petition for Review Denied

The Court concluded that because the common law definition of “conspiracy” controlled, Etienne’s conviction under Maryland law, which required no overt act in furtherance of the conspiracy, qualified as an “aggravated felony” under the INA. Accordingly, it denied Etienne’s petition for review.

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22Jan

Fourth Circuit Denies Petition for Review of Immigration Removal Proceedings

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By Paige Topper

On December 2, 2015, in the civil case of Diop v. Lynch, a published opinion, the Fourth Circuit denied a petition for review of an Order of the Board of Immigration Appeals because the Immigration Judge appropriately found petitioner, Madiagne Diop, mentally competent to proceed with the removal process.

Diop’s Illegal Immigration Status and Removal Proceedings

Diop was admitted to the United States from his native country, Senegal, as a temporary visitor on October 15, 1997. Although the visa only permitted Diop to stay in the U.S. until April 14, 1998, Diop continued to reside in the U.S. for the past seventeen years.

On January 14, 2012, Diop was arrested after a psychotic episode at his workplace. As a result of his behavior during the arrest, Diop was transferred to the hospital for a psychological evaluation and given antipsychotic medication before returning to police custody. Stemming from the arrest and subsequent convictions, the Department of Homeland Security served Diop with a Notice to Appear. The Notice deemed Diop removable as a nonimmigrant who violated the Immigration and Nationality Act for overstaying his visa.

In the course of the removal proceedings, Diop appeared before an Immigration Judge (IJ) on five separate occasions. On one of these occasions, the IJ questioned Diop on his competency in understanding the proceedings and communicating with an attorney. Diop affirmed that he understood the proceedings and could discuss his Immigration status with his attorney. Ultimately, the IJ granted Diop voluntary departure or, in the alternative, ordered his removal.

Diop filed an appeal to the Board of Immigration Appeals (BIA), claiming that the IJ should have continued the case in order to allow Diop to receive a psychological evaluation. Specifically, Diop argued that a psychological evaluation would have indicated Diop’s mental incompetency and would have resulted in a hold on his removal. The BIA rejected Diop’s argument as he had no prior history of mental health problems and had already demonstrated his ability to communicate with his attorney. Therefore, the BIA affirmed the IJ’s order of removal.

Mental Competency in Removal Proceedings

Diop’s single challenge on appeal was that the IJ should have continued or administratively closed the removal proceeding to permit Diop to receive a mental health evaluation. The Fourth Circuit noted that competency is an issue of fact. Thus, the IJ’s finding of competency was subject to review under the substantial evidence standard and must be treated as conclusive unless the evidence was such that any reasonable judge would have concluded otherwise.

The process for determining mental competency in removal proceedings was established in Matter of M-A-M. The IJ must start with a presumption of competence. If there are indicia of incompetency, then the IJ should consider three factors to determine whether a respondent is competent to participate in the proceedings. The IJ must consider whether the respondent (1) has a rational and factual understanding of the nature and object of the removal proceedings, (2) can consult with an attorney, and (3) has a reasonable opportunity to examine and present evidence and cross-examine witnesses. This process deliberately gives the IJ discretion to determine competency on a case-by-case basis.

Diop Was Competent to Participate in the Proceedings

The Fourth Circuit found that Diop’s appeal failed at the initial stage of the M-A-M analysis because there were no sufficient indicia of Diop’s incompetency. Although Diop brought up the psychotic episode that led to his arrest, the Fourth Circuit noted that past mental history is not dispositive. Furthermore, the Fourth Circuit found that the IJ’s verbal exchange with Diop indicated his competency because Diop voiced no psychological concerns, understood that the proceedings related to his immigration status, and raised only the objection of expense in calling his attorney.

Moreover, the Fourth Circuit emphasized the fact that Diop had five appearances before the IJ and repeatedly asked for continuances as a means to delay his removal. In particular, Diop had previously argued that his psychotic outburst was brought on by lack of sleep to show that his stable and non-violent nature warranted him a continued stay in the U.S. With Diop making such contradictory arguments, the Fourth Circuit concluded that his appeal was yet another delay tactic.

Fourth Circuit Denied the Petition for Review

The Fourth Circuit determined that the IJ’s actions in ascertaining Diop’s competency were in full compliance with M-A-M. Having found that Diop was fully competent to participate in the removal proceedings, the Fourth Circuit denied the petition for review.

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19Jan

Drug Conviction Renders Petitioner Ineligible for Relief Under the INA or CAT Despite Fleeing Gang Violence in Central America

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By Elizabeth DeFrance

On December 4, 2015, the Fourth Circuit issued a published opinion in the case, Hernandez-Nolasco v. Lynch, in which the petitioner sought review of orders of the Board of Immigration Appeals (BIA).

Being Kidnapped And Threatened By A Gang After His Brother and Father Were Killed Failed to Meet The Burden of Proving He Would Face Torture If Removed

In 2009, Jose Hernandez-Nolasco, a citizen of Honduras,  entered the United States without authorization at the age of seventeen. In 2012, he pled guilty to possession of cocaine with intent to distribute, a violation of Virginia Code § 18.2-248 and was sentenced to five years. The sentence was suspended.

Sometime later, the Department of Homeland Security issued a Notice of Intent to issue a Final Administrative Removal Order for Hernandez-Nolasco. He claimed he was entitled to withholding of removal under the Immigration Nationality Act (INA) or the United Nations Convention Against Torture Act (CAT) because he would face persecution upon return to Honduras because of his membership in a particular social group. Hernandez-Nolasco’s father and brother were killed by a gang leader, and he left Honduras after being kidnapped and threatened by the same gang.

An Immigration Judge (IJ) held that Hernandez-Nolasco was not entitled to withholding of removal under the INA or CAT because he was convicted of a “particularly serious crime.” The IJ also found that Hernandez-Nolasco was not entitled to deferral of removal under the CAT because he failed to prove he would be subject to torture if returned to Honduras.

On appeal, the BIA affirmed the IJ’s decision. Hernandez-Nolasco filed a motion for reconsideration which was denied by the BIA. Hernandez then petitioned the Fourth Circuit Court of Appeals for review, claiming the BIA erred in determining his drug conviction meets the definition of an “aggravated felony,” rendering him ineligible for relief under the INA and the CAT. He also claims that the BIA erred in holding that he failed to meet his evidentiary burden to qualify for relief under the CAT.

A Drug Trafficking Crime Is Considered An Aggravated Felony

A petitioner is ineligible for relief under the INA or the CAT if he has been convicted of a particularly serious crime. A conviction for an aggravated felony with a sentence of at least five years is considered a particularly serious crime. Under the INA, a “drug trafficking crime” is considered to be an aggravated felony. Any “conviction under a state statute that proscribes conduct necessarily punishable as a felony under the Controlled Substances Act (CSA)” qualifies as a drug trafficking crime.

Hernandez-Nolasco’s Drug Trafficking Conviction Qualifies As A Particularly Serious Crime

Because Hernandez-Nolasco was convicted of a state crime that necessarily constitutes as felony under the CSA, the conviction qualifies as an aggravated felony under the INA. An aggravated felony is considered a particularly serious crime if it results in a sentence of at least five years, thus Hernandez-Nolasco is ineligible for withholding of removal under the INA or the CAT.

Under the INA, the Court’s jurisdiction for review of final orders of removal involving crimes related to controlled substances is limited to constitutional claims and questions of law. The BIA’s finding that Hernadez-Nolasco’s failed to provide enough evidence he would face torture upon his return to Honduras is a question of fact, not law. Thus, the Court lacked jurisdiction to decide the merits of his claim.

Petitions for Review Were Denied In Part And Dismissed In Part

The Court upheld the BIA’s denial of Hernandez-Nolasco’s petition for withholding of removal. The Court lacked jurisdiction to decide the merits of Hernadez-Nolasco’s claim he was entitled to deferral of removal under the CAT.

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19Jan

Fourth Circuit Reverses Board of Immigration Appeals on “Nexus” Requirement

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By Eric Benedict

On November 25, 2015, the Fourth Circuit issued its published opinion in the immigration case Oliva v. Lynch. The appeal was taken from the Board of Immigration Appeals (“BIA”) after a one-person panel affirmed the Immigration Judge’s (“IJ”) decision to deny Oliva’s application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”). On appeal, Oliva argued that the lower judicial bodies erred by (1) failing to recognize the nexus between his persecution and the proposed social group and (2) for failing to consider evidence that he was a member of a cognizable social group. A unanimous panel of the Fourth Circuit agreed and vacated in part and remanded in part.

Oliva Faces Years of Extortion and Threats for Leaving MS-13 Gang

When he was sixteen years old, Vladimir Oliva joined a gang called Mara Salvatrucha, otherwise known as MS-13 and was trained as a spy. A short time later, after witnessing the brutality of gang life, he decided to leave MS-13. However, MS-13 does not permit its members to leave the gang. A member is permitted to become “inactive” for religious or family reasons, but is required to pay “rent” to the gang. Members who attempt to leave are threatened with death. Oliva moved to a number of different cities in an attempt to evade the gang and the “rent” payments. Ultimately, Oliva spent almost a decade paying almost a third of his income to the gang. When Oliva failed to make payment in 2006, he was severely beaten and again threatened with death.

Oliva Seeks Protection on American Soil

To avoid continued persecution in his native El Salvador, Oliva entered the United States without authorization in 2007. Years later, Oliva continued to receive threatening calls from MS-13, notifying Oliva that he would be killed if he returned to his home country. In 2010, the department of Homeland Security (“DHS”) charged Oliva with removability under the INA.  The following year, Oliva filed an application for asylum and withholding of removal.

The Proceedings Below

After its initial hearing, the Immigration Court denied Oliva’s petition because it believed that MS-13 was not targeting Oliva because of his membership in the group, but rather, was targeting Oliva for money. Oliva appealed the decision and a one-member panel of the BIA dismissed the appeal. Notably, the Immigration Court also based its decision on Oliva’s failure to meet the filing deadline for asylum. However, the BIA did not address the issue, so the issue was not before the Fourth Circuit. Oliva appealed to the Fourth Circuit Court of Appeals.

The Fourth Circuit’s Deference to the BIA and the Fact Finding Standard of Review

Judge Wynn set forth a thorough discussion of the standard by which the Fourth Circuit reviews decisions of the BIA. Notably, the INA sets forth a fairly deferential standard, “[A] decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(c). In this case, the Court was careful to point out that, “[w]hile a three-member panel of the BIA is entitled to Chevron deference … a one-member panel of the BIA-like the one in this case is entitled to the lesser Skidmore deference.” Finally, the Court noted that while the BIA’s findings of law are reviewed de novo, the BIA’s findings of fact are “conclusive unless no rational factfinder could agree with the BIA’s position.”

Oliva sought asylum under section 241 (b)(3)(A) of the INA, which provides in part that the Attorney General may not remove an alien who is otherwise removable “if the Attorney General decides that the alien’s life or freedom would be threatened in [the country of removal] because of the alien’s … membership in a particular social group…” Under this provision, the BIA dismissed Oliva’s appeal from the IJ first because it found that the alleged groups were not cognizable under the INA and second because Oliva failed to show a nexus between his membership in the group and the persecution he feared. Oliva appealed both of these findings.

Oliva Meets the INA’s Nexus Requirement

Oliva claimed that his persecution was due to his membership in a group. To satisfy the INA’s nexus requirement, an applicant must show that, “his past or threatened persecution was ‘on account of’ his membership in that group.” Importantly, membership in a particular group only has to be a central reason for the persecution, not the only reason for the persecution. The Court qualified this test by noting that membership must not be “merely ‘incidental, tangential, superficial, or subordinate to another reason for harm.’” Explaining that extortion can constitute persecution, the court reversed the BIA’s holding. Judge Wynn noted that “[b]ecause it is undisputed that MS-13 extorted Oliva on account of his leaving the gang, the record compels the conclusion that his persecution was on account of his status as a former member of MS-13.” The Fourth Circuit rejected the BIA’s contention that the gang extorted Oliva due to greed, observing that Oliva’s decision to leave the gang for religious reasons was what placed him in the category of person from which MS-13 demands “rent” payments. Despite a relatively deferential standard of review, the Court reversed the BIA, finding that Oliva satisfied the nexus requirement.

The BIA Erred in Failing to Address Oliva’s Evidence on the “Cognizable Group” Element

Oliva claimed that he was threatened because of his membership in two different groups. First, “Salvadorians who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and second, “Salvadorians who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission for moral and religious reasons.” A group is cognizable under the relevant portion of the INA if the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The BIA ended its inquiry after finding that Oliva failed the “social distinction” requirement because the group is not “perceived as a group by society”. However, the parties agreed that the BIA erred by failing to address all of the evidence put forth by Oliva as to the groups social distinction. Therefore, the government agreed that the proper course of action was for the Fourth Circuit to remand the matter to the BIA for consideration of the evidence.

Conclusion

Despite an elevated standard of review, the Fourth Circuit found that the BIA defined the nexus requirement too narrowly. Instead, the Court set forth the proper inquiry and found that Oliva had demonstrated that his membership in the proposed group was a central reason for his persecution. Therefore the Fourth Circuit reversed the BIA on this issue. Second, the Court, on agreement of both parties remanded the matter for consideration of the evidence as to whether or not Oliva’s proposed groups are cognizable under the INA.

 

 

 

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20Nov

“Crime of domestic violence” does not require underlying domestic violence offense

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By Sarah M. Saint

Today, in the published civil case of Hernandez-Zavala v. Lynch, the Fourth Circuit denied Hernan Hernandez-Zavala’s petition for review of the Board of Immigration Appeal’s (“BIA’s”) order affirming the Immigration Judge’s (“IJ’s”) pretermission of Hernandez-Zavala’s application for cancellation of removal. The BIA found Hernandez-Zavala had committed a crime of domestic violence and thus statutorily ineligible for cancellation of removal.

Hernandez-Zavala’s underlying conviction

On March 21, 2012, Hernandez-Zavala pleaded guilty to assault with a deadly weapon. The victim of assault was a woman with whom Hernandez-Zavala lives and shares a child.

Procedural history of Hernandez-Zavala’s application for cancellation of removal.

On March 9, 2012, the Department of Homeland Security (“DHS”) charged Hernandez-Zavala with removability because he had been neither admitted nor paroled when he entered the United States. Hernandez-Zavala applied for cancellation of removal. The Attorney General may cancel the removal of a removable alien if he meets certain criteria, including never being convicted of a crime of domestic violence.

On February 4, 2013, DHS moved to pretermit Hernandez-Zavala’s application because he had been convicted of a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i) and thus was ineligible for cancellation of removal. A crime of domestic violence is, in relevant part, “any crime of violence . . . by an individual who is cohabitating with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse.” 8 U.S.C. § 1227(a)(2)(E)(i). Hernandez-Zavala contested this motion, claiming the conviction did not constitute a crime of domestic violence.

On March 18, 2013, the IJ granted DHS’s motion to pretermit Hernandez-Zavala’s application for cancellation of removal because Hernandez-Zavala committed a crime of domestic violence and accordingly ineligible for cancellation of removal.

On April 8, 2013, Hernandez-Zavala appealed the IJ’s decision to the BIA because assault with a deadly weapon is not categorically a disqualifying offense. The BIA used the circumstance-specific approach to conclude that the IJ properly determined that Hernandez-Zavala committed a crime of domestic violence.

Hernandez-Zavala filed a petition for review with the Fourth Circuit bringing one legal issue: whether a conviction under a state law that does not have a domestic relationship as an element of the offense can constitute a “crime of domestic violence.” This is a matter of first impression for the Fourth Circuit.

Standard of Review

Legal issues are reviewed de novo. When both the BIA and IJ issue decisions, the Fourth Circuit reviews both decisions.

What is a crime of domestic violence?

A crime of domestic violence has two elements: (1) a crime of violence (2) that was committed by an individual who was in a domestic relationship with the victim.

Hernandez-Zavala does not dispute that his assault conviction constitutes a crime of violence. Hernandez-Zavala also does not dispute that he was in a domestic relationship with the victim of his assault. “The only question is whether the domestic relationship requirement in the statute must be an element of the underlying offense of conviction, triggering the categorical approach, or if it must merely be an attendant circumstance of the underlying conviction, triggering the circumstance-specific approach.”

Under the categorical approach, the inquiry stops by looking at the elements of the underlying offense; there is no factual inquiry into the particular circumstances of the conviction. The categorical approach is practical for judicial efficiency. Courts use the categorical approach when a state crime fits within the generic federal definition of a corresponding crime.

Under the circumstance-specific approach, the court must consider the underlying evidence of the underlying offense to determine if the victim and Hernandez-Zavala had a domestic relationship. Courts use the circumstance-specific approach when the corresponding federal statute does not describe a generic offense but specific acts in specific occasions.

Hernandez-Zavala argues for the categorical approach to apply while DHS argues for the circumstance-specific approach to apply.

The Fourth Circuit relied on the reasoning in United States v. Hayes as instructive in whether to use the categorical or circumstance-specific approach. 555 U.S. 415 (2009). In Hayes the Court concluded that a domestic relationship did not need to be an element of the underlying offense. Id. at 426. Most states have no domestic violence laws, so crimes of domestic violence are prosecuted under general assault or battery laws. Id. at 427.Therefore, the Court in Hayes held that the circumstance-specific approach should apply because the categorical approach would frustrate the purpose of the law. Id.

Fourth Circuit denied Hernandez-Zavala’s petition for review

The Fourth Circuit concluded that the circumstance-specific approach should apply in Hernandez-Zavala’s case, using the reasoning in Hayes as instructive. Further, the relationship between the noncitizen and the victim is easily discernible. In doing so, the Fourth Circuit denied Hernandez-Zavala’s petition for review and affirmed the BIA’s decision because Hernandez-Zavala’s conviction for assault with a deadly weapon was committed against someone with whom he had a domestic relationship, rendering him ineligible for cancellation of removal.

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4Nov

Unlawful Immigrant’s Discharge of Firearm into Winston-Salem Building not a “Crime of Violence”

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By Mikhail Petrov

On July 23, 2015, in the criminal case of United States v. Parral-Dominguez, the Fourth Circuit issued a published opinion vacating the sentence of foreign national Edgar Parral-Dominguez (“Dominguez”) and remanding the case back to the district court. This case examined whether Edgar Parral-Dominguez, a Mexican citizen, was properly subject to a sentencing guidelines enhancement. After Dominguez plead guilty to illegally reentering the country, the district court applied the enhancement because, in its view, Dominguez’s previous conviction in North Carolina for discharging a firearm into an occupied building is a requisite “crime of violence.” The Fourth Circuit found this decision was in error.

The Facts

In 2000, at the age of 14, Edgar Parral-Dominguez left Mexico with his father and entered the United States. Although his father went back, Dominguez remained. On New Year’s Day, a firearm was discharged toward a woman’s residence in Winston-Salem, North Carolina. A year later, Dominguez was arrested and charged for the incident. He was convicted for an aggravated felony–discharging a firearm into a building under N.C.G.S.A. § 14-34.1(a) (“the State Offense”).

During his post-arrest processing, state authorities found that Dominguez was unlawfully present in the country. Thus, after he plead guilty to the State Offense he was deported to Mexico. Within months, however, Dominguez returned to North Carolina, and settled in Wilmington.

Three years after his deportation, Dominguez was arrested with more than an ounce of cocaine. He was convicted for trafficking and state authorities again discovered that Dominguez was previously deported and was unlawfully present in the country. In December 2013, a federal grand jury sitting in the Eastern District of North Carolina indicted Dominguez under 8 U.S.C. §§ 1326(a) for illegally reentering the United States after being convicted of an aggravated felony.

Before Dominguez’s sentencing, U.S. Probation prepared a presentence investigation report (PSR), which found that Dominguez was a Category IV criminal, that his base offense level was eight, and that he earned a three-point reduction for accepting responsibility. The PSR then proposed a sixteen-level enhancement to Dominguez’s offense level for having been previously convicted of a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Applying this enhancement, the PSR calculated an offense level of twenty one, resulting in fifty-seven to seventy-one months of imprisonment. Dominguez argued that, as a matter of law, the State Offense did not constitute the requisite crime of violence under § 2L1.2(b)(1)(A)(ii).

The district court overruled Dominguez’s objection after concluding that the occupant of a building would feel threatened by the physical force when a defendant shoots at the building. The court then imposed a sixty-five month sentence. The day after sentencing, the district court issued a nine-page memorandum opinion which argued, without binding precedent, that Dominguez’s offense was a crime of violence as anyone would be inherently threatened if their building was shot at. Dominguez appealed.

The Rule of the Case

This appeal centers on whether the state offense of discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a) constitutes a crime of violence for federal sentencing purposes under U.S.S.G. § 2L1.2. The Fourth Circuit first compared the contours of a “crime of violence” under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a). The court applied the so called “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990) (finding that the elements of a statute, not the actual conduct, dictate its interpretation for sentencing purposes). Under the Taylor approach, the court considers only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.

Reasoning of the Fourth Circuit

Section 2L1.2 states that a 16-level enhancement applies if “the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” Although the text of § 2L1.2 does not expressly define the phrase “crime of violence,” the application note clarifies that the phrase contemplates any offense under federal, state, or local law that has, as an element, the use, attempted use, or threatened use of physical force against a person. The so-called “use-of-force clause” was the sole basis with which the Government argued that the State Offense is a crime of violence under § 2L1.2. Still, the use of force clause is limited because first, the plain language of the clause does not encompass acts involving the use of force against property. Second, unlike other sections of the Guidelines, the use-of-force clause does not include “acts that merely pose a risk of harm to another person.”

Although not listed as an element in the statute, the Supreme Court of North Carolina has read a knowledge element into the State Offense which requires the defendant to have had “reasonable grounds to believe that the building might be occupied by one or more persons.” Thus, the State Offense does not require that an offender use, attempt to use, or threaten to use force against another person. Instead, the crime is complete when a person (1) intentionally (2) discharges a firearm (3) toward an occupied building (4) when the shooter knows or has reasonable grounds to believe that the building might be occupied. Therefore, the State Offense cannot be construed as a crime of violence under § 2L1.2’s use-of-force clause and the district court committed procedural error by concluding that Dominguez’s offense under the State Offense is a crime of violence.

Finally, the Fourth Circuit reasoned that the error was not harmless. While in many cases, a judge is unequivocal about what effect any Guidelines miscalculation would have on the ultimate sentence, no such words exist here. It is not clear that Dominguez’s sentencing was unaffected by the court’s error. The Fourth Circuit, looking at the amount of time devoted to calculating the sentence, reasoned that the Guidelines played a large role in the sixty-five month sentence.

Holding

The Fourth Circuit vacated and remanded Dominguez’s sixty-five month sentence. The court held that the State Offense is not a crime of violence, and thus that the district court committed procedural error. Additionally, the procedural error was not harmless. The dissent by Circuit Judge Wilkinson argues that the decision should be upheld because the State Offense is not a crime against property, but a crime against people who occupy the property and is therefore a crime of violence.

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26Oct

Fourth Circuit Affirms Imposition of Supervised Release on an Alien Who is Likely to be Removed

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By Elizabeth DeFrance

On July 7, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Aplicano-Oyuela. The Appellant, Gerson Arturo Aplicano-Oyuela (“Aplicano”) pled guilty to illegal reentry after his removal following a felony conviction, and received a term of three years supervised release. He appealed the term of supervised release, arguing that it was procedurally and substantively unreasonable, and the sentencing judge failed to advise him on supervised release before accepting Aplicano’s guilty plea in violation of the Federal Rules of Criminal Procedure Rule 11.

Aplicano had a History of Illegal Entry and Criminal Activity

Aplicano is a native citizen of Honduras, and illegally entered the United States in 2002. Between 2006 and 2011 he plead guilty to second-degree assault and driving without a license, and was convicted of criminal mischief. He was removed to Honduras in January 2012, and illegally reentered the United States within the next year. He was arrested several times in 2013, and plead guilty to another second-degree assault charge.

On July 26, 2013, a grand jury indicted Aplicano with illegal reentry by an alien who had previously been removed after a felony conviction. He initially plead not guilty, but later submitted a letter through his attorney stating that he pled guilty “without benefit of a plea agreement,” and acknowledged that the maximum sentence for his offense included a three year term of supervised release.  During the plea hearing, it was established that Aplicano understood he could be sentenced to the maximum penalty, including supervised release.

Aplicano’s presentence report (PSR) indicated that the Guidelines range for his offense level was ten to sixteen months, and indicated a supervised release term of not more than three years could be imposed if required by statute, if the court sentenced the defendant to a term of imprisonment longer than one year. The PSR also indicated that, pursuant to U.S.S.G. § 5D1.1(c), “the Court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” The PSR report recommended a supervised release term of two years due to Aplicano’s criminal history.

Applicano submitted a letter requesting the length of imprisonment be reduced, but did not address the supervised release recommendation or attempt to withdraw his guilty plea. During the sentencing hearing Aplicano urged the court to consider the violent gang attacks his family had suffered in Honduras. The district court did consider § 3553(a) factors, but ultimately found Aplicano’s story unconvincing. The district court focused much attention on Aplicano’s multiple illegal entries and propensity to commit crimes while in the United States.  The district court sentenced Aplicano to sixteen months in prison and a term of three years supervised release.

Alleged Sentencing Errors are Reviewed for Plain Error

Challenges to sentencing not preserved in the lower court are reviewed for plain error, as is a contest to a guilty plea the defendant did not attempt to withdraw. The defendant must prove that the error affects his substantial rights.

Imposition of a term of supervised release is procedurally reasonable if it is within the guidelines. The imposition of supervised release is “not a departure from the Guidelines if the district court finds that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.”

When determining the substantive reasonableness of a sentence, the court must consider the totality of the circumstances, including any variance from the Guidelines. If the sentence is within the Guidelines range, the reviewing court may make a presumption of reasonableness. The defendant may rebut this presumption using the § 3553(a) factors, including the sentencing court’s use of an improper factor not included in § 3553(a).

The Federal Rules of Criminal Procedure 11(b)(1)(H) states, “[b]efore the court accepts a plea of guilty [it] must inform the defendant of, and determine that the defendant understands, … any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fourth Circuit precedent also requires the sentencing judge personally inform the defendant and assure he understands the consequences of his guilty plea.

The Supervised Release Term was Intended as a Deterrent

In determining whether the term of supervised release was procedurally unreasonable, the Court noted that the district court failed to specifically discuss the Guidelines or that expressly state that the imposition of supervised release was intended to deter the defendant and protect the community. However,  the Court followed reasoning from Second Circuit, stating that it is sufficient if the sentencing court “(1) is aware of Guidelines section 5D1.1(c); (2) considers a defendant’s specific circumstances and the § 3553(a) factors; and (3) determines that additional deterrence is needed.” The Court reasoned that the district court was aware of section 5D1.1(c) because it adopted the PSR “without change” which included the recommendations from 5D1.1(c). It Also concluded that the district court adequately considered Aplicano’s specific circumstances because its opinion discussed Aplicano’s description of the violence his family experienced in Honduras, and his criminal history in the United States. Finally, the district court determined additional deterrence was necessary because it stated, “I think you may well try to get back in the country again.” Accordingly, the Court determined that the imposition of supervised release was not procedurally unreasonable.

In his challenge to the substantive reasonableness of the supervised release term, Aplicano argued that the district court’s statement that it would allow the authorities to “get him in jail much faster than if we went through a separate prosecution” indicated the use of an improper factor. However, the Court reasoned that this statement only indicated that the district court intended the term of supervised release to deter and protect the community. Accordingly, the imposition of supervised release was not substantively unreasonable.

In considering whether the district court violated Rule 11, the Court noted that Aplicano was advised during the plea hearing that he could receive the maximum term of three years supervised release. The Court reasoned that even if the district court had erred by failing to properly inform him of the nature of supervised release, a vacatur of his guilty plea was not warranted because the error did not affect his substantial rights. Specifically, Aplicano did not identify anything in the record indicating he would not have plead guilty if the district court had advised him on the nature of supervised release. The Court found it compelling that Aplicano made no effort to withdraw his guilty plea after the term of supervised release was imposed. Therefore, the Court concluded that Aplicano’s substantial rights were not affected.

Judgment of the District Court is Affirmed

The Court held that there was no error because imposition of supervised release was procedurally and substantially reasonable. It also held that Vacatur was unwarranted because the presumed error did not affect Aplicano’s substantial rights.

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14Oct

Fourth Amendment Protections Weakened in Deportation Proceedings

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By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

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6Oct

Fourth Circuit Vacates BIA Removal Order

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By Cate Berenato

On June 10, 2015, in the civil case, Amos v. Lynch, the Fourth Circuit overturned a Board of Immigration Appeals (“BIA”) order to remove a legal alien from the United States because he sexually abused a child under Maryland law. The Court stated that the federal aggravated felony of child sexual abuse did not encompass the Maryland law, and thus the alien could not be removed for committing an aggravated felony under federal law.

Mr. Amos’s Conviction

In 1990, Richard Jesus Amos (“Amos”), a citizen of the Philippines and United States resident, was convicted of violating Maryland law by “causing abuse to a child.” In 2008, the Department of Homeland Security (“DHS”) began a removal proceeding against Amos under 8 U.S.C. § 1227(a)(2)(A)(iii), which states that “any alien who is convicted of an aggravated felony at any time after admission” may be removed from the United States. An immigration judge ruled that Amos should be removed for violating not only the former Maryland child sexual abuse law, Maryland Code, Article 27 § 35A (1988) (“Maryland statute”) but also the federal law 8 U.S.C. §1101(a)(43)(A) (“Subsection A”), which lists “sexual abuse of a minor” as an aggravated felony. Amos appealed, but the BIA dismissed his appeal and denied his motion for reconsideration. The Fourth Circuit vacated Amos’s removal and granted his petition for review.

Does Subsection A Encompass the Maryland Statute?

The Fourth Circuit considered “whether the BIA erred in concluding that Amos’s conviction under the former Maryland statute qualifie[d] as the aggravated felony of ‘sexual abuse of a minor,’ within the meaning of Subsection A.” The Fourth Circuit reviewed BIA’s decision de novo.

Determining Categorical Fit

To determine “whether a conviction under a particular state law qualifies as an aggravated felony for removal purposes” courts must ask “whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” The Maryland statute prohibits sexual abuse of a child regardless of whether the child sustains physical injuries, and “sexual abuse of a minor” is an aggravated felony under Section A.

 Subsection A Does Not Fully Encompass the Maryland Statute

 The Fourth Circuit first considered the definition of Subsection A’s “sexual abuse of a minor.” Because the Immigration and Nationality Act (“INA”) does not define Subsection A’s “sexual abuse of a minor,” the BIA stated that the BIA itself had previously defined this phrase in Rodriguez-Rodriguez. In that case, the BIA decided that exposure to a child, without physical contact, constituted “sexual abuse of a minor” under Subsection A. It borrowed a broad “sexual abuse” definition from another statute, which stated that “sexual abuse” was “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.”

The Fourth Circuit rejected the BIA’s reliance on Rodriguez. It noted that the BIA in Rodriguez specifically stated that it was not adopting the broad definition as the definitive one for “sexual abuse of a minor” under Subsection A, but rather used it as a guide. Rodriguez only concluded that the Subsection A’s “sexual abuse of a minor” did not require physical contact and that Subsection A encompassed Texas’s state child abuse statute.

Subsection A does not include the least culpable behavior prohibited by the Maryland statute. Though the BIA in Amos’s case argued that Subsection A must include the child abuse prohibited by the Maryland statute because Subsection A does not even require physical contact, the Fourth Circuit stated that the least culpable portion of the Maryland statute, “failure to act to prevent sexual abuse,” is not encompassed in Subsection A. The BIA did not offer any evidence suggesting that Subsection A encompasses this “failure to act.” Even the broad definition in Rodriguez solely includes affirmative acts, even though they may not be physical acts. Thus, because the Maryland statute criminalizes inaction and the BIA did not provide any definition of “sexual abuse of a minor” under Subsection A that criminalized inaction, Subsection A does not fully encompass the Maryland statute.

Fourth Circuit Vacated BIA’s Decision

The Fourth Circuit vacated the BIA’s decision to remove Amos and granted his petition for review.

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18Sep

Fourth Circuit Finds Hernandez-Avalos Meets Asylum Eligibility Requirements

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By Sarah Saint

On April 30, 2015, the Fourth Circuit issued a published opinion in the civil case Hernandez-Avalos v. Lynch. Maydai Hernandez-Avalos and her son fled El Salvador after being thrice threatened by Mara 18, an aggressive gang, and entered the United States without valid entry documents. Hernandez petitioned for asylum, which the Immigration Judge denied. The Board of Immigration Appeals affirmed this decision. Hernandez-Avalos petitioned for review of a final order of removal by the Board of Immigration Appeals (BIA). The Fourth Circuit granted the petition for review, vacated the BIA’s order, and remanded the case for further proceedings.

Hernandez’s Story and Summary of Removal Proceedings

In 2007, members of the El Salvador gang Mara 18 killed the cousin of Hernandez’s husband. After the burial, armed members of Mara 18 threatened to kill Hernandez if she identified Mara 18 to the authorities as the men responsible for her cousin-in-law’s murder. A few months later members of Mara 18 put a gun to Hernandez’s head and threatened to kill her because she would not allow her son to join Mara 18. In May 2008, Mara 18 threatened to kill Hernandez a third time when she again would not allow her son to join Mara 18. Hernandez was afraid to report these incidents to the police because gang members are frequently released within days of their arrest and retaliate against complaining witness. Instead, she and her son fled El Salvador before dawn the next day.

In 2008, Hernandez and her son entered the United States without valid entry documents. She sought relief from deportation in the form of asylum and requested withholding of removal under the Immigration and Naturalization Act (INA). Hernandez thinks that if she goes back to El Salvador, members of Mara 18 would kill her. However, the Immigration Judge denied Hernandez’s petition for asylum because she had neither established that she would likely suffer future persecution on account of a protected ground nor established that she was threatened by persons the Salvadoran government was unwilling or unable to control. Hernandez appealed to the BIA, which affirmed the Immigration Judge’s decision. Hernandez then appealed to the Fourth Circuit, which vacated the BIA’s order and remanded the case for further proceedings.

Standard of Review

The BIA issued its own opinion without adopting the Immigration Judge’s reasoning. The Fourth Circuit reviewed only the BIA’s final order. Factual findings are reviewed under the substantial evidence standard: they are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Legal conclusions are reviewed de novo. The Fourth Circuit must uphold the BIA’s decision “unless it is manifestly contrary to law and an abuse of discretion.

Hernandez Established her Eligibility for Asylum

To establish eligibility for asylum under 8 U.S.C. § 1101(a)(42)(A), Hernandez must prove she (1) has a well-founded fear of persecution; (2) on account of a protected ground; (3) by an organization that the Salvadoran government is unable or unwilling to control. The Fourth Circuit found that Hernandez satisfies the first element because the threat of death meets the requirement for persecution.

The BIA incorrectly found that Hernandez did not satisfy the second element because Hernandez was persecuted because she would not allow her son to join the gang, not because she was her son’s mother. The Fourth Circuit determined this was manifestly contrary to law and an abuse of discretion because Hernandez’s relationship with her son was why she was threatened. Accordingly, the Fourth Circuit found that Hernandez satisfies the second element.

The BIA also incorrectly relied on the Immigration Judge’s conclusion that Hernandez did not satisfy the third element, that the El Salvador government could not control Mara 18. The Immigration Judge relied on its own knowledge of country conditions. The Fourth Circuit found that Hernandez’s credible testimony about the Salvadoran police being unable to protect her from Mara 18 was sufficient.

Petition for Review Granted and Case Remanded

Because Hernandez established her eligibility for asylum, the Fourth Circuit determined that Hernandez met all three elements for eligibility for asylum. Accordingly, the Fourth Circuit granted Hernandez’s petition for review and remanded the case to the BIA for further proceedings.

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10Sep

Fourth Circuit Denies a Father’s Petition for Review of an Order of the Board of Immigration Appeals

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By Whitney Pakalka

On April 21, 2015, the Fourth Circuit issued its published opinion in the civil case of LeBlanc v. Holder, 784 F.3d 206 (4th Cir. 2015). The court dismissed LeBlanc’s petition for review of the denial of his motion to reopen an I-130 petition for citizenship for his adult son that had been denied. Finding that the court lacked jurisdiction, and that it was not in the interest of justice to transfer the case to a district court with jurisdiction, the Fourth Circuit dismissed LeBlanc’s petition.

Factual Background and Procedural History

While working on an offshore oil rig in Nigeria from 1968 to 1978, Louisiana resident Ashton LeBlanc began a relationship with Victoria Efueye. On September 6, 1970, Victoria gave birth to their son, Robert LeBlanc. Although Ashton and Victoria never married, Robert’s birth certificate lists Ashton as the father, and Ashton acknowledged his parentage by attending Robert’s “Naming Day,” a tradition in the Nigerian culture. Ashton, Victoria, and Robert lived together as a family when Ashton lived in Nigeria, and Ashton supported his son financially.

After Robert came to the United States on a visitor’s visa in 2001, Robert and Ashton decided that Robert should remain in the country. Ashton hired attorney Stuart Snyder to facilitate Robert’s application for citizenship. Although Ashton completed a Form N-600 (Application for Certificate of Citizenship), Snyder instead filed a Form I-130 (Petition for Adjustment of Status for an Alien Relative). The I-130 was denied in May 2007 because additional necessary documents were never submitted. Snyder appealed the denial without ever filing a brief, and the Board of Immigration Appeals (BIA) denied the appeal in November 2007.

From 2007 to 2012 Snyder assured the LeBlancs that the matter was being handled. Ashton contacted another attorney in 2011 to look into the status of Robert’s case. After speaking with Snyder, the second attorney informed Ashton that the matter was being handled properly. Ashton, who is currently eighty-four years old and was anxious to see his son gain citizenship while he was alive, hired still another attorney who quickly discovered the problems with Snyder’s work. The new attorney filed a motion to reopen the denial of the I-130 petition on the grounds that Snyder provided ineffective assistance of counsel. The BIA denied the motion in November 2013, finding that Ashton failed to show due diligence after contacting the second attorney.

Jurisdiction in the Immigration Context  

Under 8 U.S.C. § 1252(a)(1), a court may exercise jurisdiction in the immigration context only to review “a final order of removal,” defined as an order from the Attorney General, or an appropriate designee, “concluding that the alien is deportable or ordering deportation.” 8 U.S.C. § 1101(a)(47)(A).

The Fourth Circuit found that because the petition sought review of the denial of a motion to reopen a visa petition, and not a removal order, the court lacked jurisdiction. The Fourth Circuit was not persuaded by Ashton’s speculative contention that Robert would be subject to deportation if removal proceedings were instituted. Ashton further argued that under 8 U.S.C. § 1252(b)(5), the court of appeals is permitted to decide a claim of nationality when there is “no issue of material fact.” The Fourth Circuit noted that while this section does grant the court authority to decide nationality claims when it has jurisdiction, it does not create jurisdiction where none exists.

The Possibility of Transfer under 28 U.S.C. § 1631

Under 28 U.S.C. § 1631, when a court lacks jurisdiction over an appeal “including a petition for review, . . . the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which . . . the action could have been brought at the time it was filed or noticed.”

The Fourth Circuit adopted the Second Circuit’s test for determining whether transfer is appropriate from Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009). Ruiz held that transfer is appropriate when (1) the appellate court lacks jurisdiction, (2) the transferee court would have had jurisdiction over the case when it was filed, and (3) transfer is in the interest of justice. In deciding whether the interests of justice would be served by a transfer, Ruiz considered whether the appeal was filed in good faith and whether a new action brought by the appellant would be time barred.

The Fourth Circuit held that the interests of justice do not require transfer in this case because, despite Ashton’s good faith in seeking review, the remedy he sought was “fruitless.” What Ashton seeks is United States citizenship for his son, something that cannot be achieved through an I-130 petition. The Fourth Circuit concluded that “the interests of justice are best served by terminating this litigation because its continuation wastes judicial resources while moving Ashton and Robert no closer to their goal.”

Appeal Dismissed

 The Fourth Circuit concluded that it lacked jurisdiction to hear Ashton’s petition for review of the BIA’s denial of his motion to reopen an I-130 petition for citizenship and that transfer to a district court with appropriate jurisdiction would not be proper under § 1631. Accordingly, it dismissed the petition.

 

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5Sep

Petit Larceny Conviction Renders Alien Ineligible for Cancellation of Removal

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By Blake Stafford

In Hernandez v. Holder, a published opinion decided on April 14, 2015, the Fourth Circuit held that an alien’s petit larceny conviction constitutes a “crime of moral turpitude” for the purposes of rendering an alien ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).  This section prohibits the cancellation of removal of an alien that has been convicted under one of three cross-referenced sections.  In determining the alien’s ineligibility, the Board of Immigration Appeals (BIA) interpreted § 1229b(b)(1)(C) to only import the offenses listed in the three cross-referenced sections, and it does not require that the substantive operation of the cross-referenced section apply to the alien seeking cancellation of removal.  The Fourth Circuit affirmed, concluding that the BIA’s reading of § 1229b(b)(1)(C) was a permissible interpretation of the statute, entitling its decision to Chevron deference.

Factual Background and Summary of Removal Proceedings

In 1997, Marina del Carmen Hernandez, a native and citizen of El Salvador, unlawfully entered the United States and has lived continuously in Virginia with her four children.  In 2001, she was granted “temporary protected status” under 8 U.S.C. § 1254a, which protects eligible aliens from removal to certain countries depending on conditions in that country that would prevent the alien’s safe return.

In January 2007, Hernandez was convicted of petit larceny and sentenced to 30 days’ confinement in jail.  The U.S. Citizenship and Immigration Services terminated her application to renew her temporary protected status, and, in March 2009, the U.S. Department of Homeland Security commenced removal proceedings against Hernandez under 8 U.S.C. § 1182(a)(6)(A)(i).

In March 2013, Hernandez applied for cancellation of removal under § 1229b(b)(1), alleging that her children would suffer hardship if she were not permitted to remain in the United States.  The immigration judge pretermitted her application, holding that her petit larceny conviction rendered her ineligible for cancellation, and ordered that she be removed to El Salvador.  On appeal, the BIA noted that the petit larceny conviction constituted a “crime of moral turpitude . . . for which a sentence of one year or longer may be imposed” under § 1227(a)(2).  Because this offense is located in one of the three cross-referenced sections that renders an alien ineligible for cancellation of removal under § 1229b(b)(1)(C), Hernandez’s appeal was dismissed.

Eligibility for Cancellation of Removal

Under 8 U.S.C. § 1229b(b)(1), the Attorney General may cancel the removal of an inadmissible or deportable alien if four requirements are met, one of which requires that the alien “has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title . . . .”  While each of these cross-referenced sections lists crimes for which an alien is either ineligible for admission to the United States or deportable, only § 1182(a)(2) contains a petit offense exception, providing that an alien is not rendered inadmissible for being convicted of a single crime that carries a maximum penalty of one year of imprisonment.  See 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

In this case, BIA found that Hernandez’s petit larceny conviction was “a crime involving moral turpitude . . . for which a sentence of one year or longer may be imposed” under § 1227(a)(2)(A)(i), thus rendering her ineligible for cancellation of removal.  Hernandez argued that the cross-references to § 1227(a)(2) and § 1227(a)(3) only apply to aliens who, unlike Hernandez, have been lawfully admitted to the United States.  Therefore, only offenses under § 1182(a)(2) apply to her, and that the petit offense exception would thus preserve her eligibility for cancellation of removal.  The court rejected Hernandez’s argument and affirmed the BIA’s interpretation upon considering the statutory construction of § 1229b(b)(1)(C), prior precedent, and Chevron deference to the BIA.

Fourth Circuit’s Statutory Construction

In evaluating the statutory construction of § 1229b(b)(1)(C), the Fourth Circuit noted that the three cross-referenced provisions within this section do not themselves criminalize behavior—they only list offenses that produce immigration consequences.  Because these immigration consequences are not imported into § 1229b(b)(1)(C), the court concluded that only the offenses are imported from the cross-referenced provisions, not the substantive operation of the cross-referenced provisions.  Accordingly, the court held that the most natural reading is that the conviction for any offense listed in § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3) renders an alien ineligible for cancellation of removal, regardless of the alien’s status as an admitted or unadmitted alien.

Prior Precedent: Cortez Canales

While this may not be the only possible reading of the statute, the court also noted that this interpretation is consistent with the construction of this statute previously adopted by the BIA in Matter of Cortez Canales, which determined that only language that specifically pertains to the criminal offense, such as the offense itself and the sentence imposed, should be considered for cancellation of removal eligibility under § 1229b(b)(1)(C).  That is, the language in the three cross-referenced sections pertaining to immigration law should not be considered.  Thus, in light of the the court’s own statutory construction analysis as well as the BIA’s prior interpretation of the statute in Cortez Canales, the Fourth Circuit found BIA’s interpretation in this case to be reasonable and therefore entitled to deference.

Chevron Deference

Hernandez also put forth several arguments against affording Chevron deference to the BIA, and the court rejected each of them in turn.  First, the court noted that the BIA’s construction does not obliterate the language of the statute, dismissing textual arguments involving the § 1229b(b)(1)(C) phrase permitting cancellation of removal of “an alien who is inadmissible or deportable from the United States.”  The court then noted that this interpretation does not lead to bizarre results, and it is not inconsistent with the BIA’s prior rulings.  Finally, the court declined to apply the rule of lenity, noting that any ambiguity in the statute is not grievous such that the rule of lenity is applicable.  In rejecting these arguments, the court ultimately found deference to the BIA’s construction to be appropriate.

Petition for Review Denied

Hernandez’s petit larceny conviction constitutes a “crime of moral turpitude” under one of the three cross-referenced provisions in § 1229b(b)(1)(C).  Because the BIA interpreted § 1229b(b)(1)(C) to only import the offenses listed in the three cross-referenced provisions, regardless of the alien’s status as admitted or unadmitted, Hernandez’s conviction made her ineligible for cancellation of removal.  The Fourth Circuit thus affirmed the decision of the BIA and denied Hernandez’s petition for review.

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