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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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6Apr

Lies to Immigration Judge Doom Application for Legal Status

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By Elissa Hachmeister

On April 6, 2015, in the civil case Tassi v. Holder, the Fourth Circuit denied, in an unpublished per curiam opinion, Lili Agnes Djeukem Tassi’s petition for review of an order of the Board of Immigration Appeals (“BIA”).

Agency Proceedings and Petition for Review

Tassi, a native and citizen of Cameroon, appealed to the BIA after an immigration judge denied her application for adjustment of status. The Board dismissed her appeal and denied her motion for remand, and Tassi petitioned the Fourth Circuit for review of the Board’s order.

Willful Misrepresentations Render Alien Inadmissible

The agency found that Tassi was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which provides that any alien “who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit” is inadmissible. Because Tassi was inadmissible, her status could not be adjusted to that of a lawful permanent resident.

Agency Finding of Inadmissibility Supported by Evidence in Record

The Fourth Circuit determined that the administrative record clearly supported the agency’s finding. Specifically, Tassi’s admissions that she lied before the immigration judge and submitted a fraudulent document in support of her claims were evidence that Tassi made knowing and deliberate misrepresentations to gain an immigration benefit and thus was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).

Denial of Motion to Remand Not an Abuse of Discretion

The Fourth Circuit also concluded that the Board did not abuse its discretion in denying Tassi’s motion to remand.

The Fourth Circuit Denied the Petition for Review

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6Mar

Statutory Interpretation of Eligibility Requirement for Cancellation of Removal Actions

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By Kaitlin Price

Today, Friday, March 6, 2015, the Fourth Circuit in Tiscareno-Garcia v. Holder denied in part and dismissed in part Petitioner, Rafael Tiscareno-Garcia petition for review of an order for removal of the Board of Immigration of Appeals.

Facts 

Rafael Tiscareno-Garcia illegally entered the United States on four different occasions. Between March 8, 1999 and November 3, 2000, Tiscareno-Garcia illegally entered the United States from Mexico and was apprehended by U.S. border patrol three times. On all three occasions Tiscareno-Garcia was permitted to return voluntarily to Mexico. However, on his fourth illegal crossing of the border Tiscareno-Garcia was able to avoid being caught by border control and traveled to Raleigh, North Carolina. Tiscareno-Garcia resided in Raleigh for ten years until on November 15, 2010, he was arrested by agents from the Immigration and Customs Enforcement as a part of a work-place raid. Tiscareno-Garcia was charged with illegal entry in violation of 8 U.S.C Section 1325(a), a misdemeanor offense.

Procedural Posture 

Tiscareno-Garcia served his six month sentence and then applied for a cancellation of removal action claiming that his removal would cause “exception and extremely unusual hardship” to his three children, including a ten-year-old autistic son. The Immigration Judge found that Tiscareno-Garcia was ineligible for cancellation of removal due to his 6 month imprisonment  because Section 1101(f)(7) precludes an alien from establishing good moral character, a requirement to qualify for a cancellation of removal action, if he or she has been imprisoned for 180 days or longer. The BIA, …, affirmed the Immigration Judge’s decision because Section 1101(f)(7) does not depend on the type of offense, but the sentencing, therefore Tiscareno-Garcia was ineligible for a cancellation of removal action.

The Clear and Unambiguous Interpretation of Section 1101(f)(7) Does Not Create An Absurd Result 

The Fourth Circuit found that the clear and unambiguous intent of Section 1101(f)(7) is to prevent any aliens who have been imprisoned for 180 days or more to be precluded from a finding of “good moral character,” a necessary finding to qualify for the cancellation of removal action. Petitioner does not disagree with this plain and unambiguous meaning.

Next, the Fourth Circuit addressed Petitioner’s claim that the plain and unambiguous reading of Section 1101(f)(7) leads to an absurd result. Petitioner claimed that preventing an alien from applying for cancellation of removal relief, Section 1229(b), solely because of an imprisonment on  a charge of entering the U.S. illegally, Section 1325(a)  is an absurd result because Section 1229(b) is meant to provide aliens with a relief for those who violate Section 1325(a). The Fourth Circuit rejected Petitioner’s argument that this situation is one of the “exceptionally rare” instances where “a literal reading of a statute produces an outcome that is demonstrably at odds with clearly expressed congressional intent.” Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th Cir. 2000).  The Fourth Circuit explains that to reach the absurdity threshold it must be a result that “shocks the general moral or common sense. Here, Congress provided a number of actions that bar an alien from seeking cancellation of removal action because he or she cannot establish good moral character. The Fourth Circuit rejected Petitioner’s claim that this provision will prevent all aliens convicted of illegal entry from qualifying for cancellation of removal.

The Fourth Circuit posited three common situations in which aliens could not be barred from seeking cancellation of removal due to being arrested for entering the U.S. illegally : (1) if they came to the U.S. legally, but violated a visa, (2) those who are not convicted under  Section 1325(a), and (3) those who do not receive the maximum 180 day sentence. Further, the Fourth Circuit found plausible reasons for Congress to decided to exclude discretionary cancellation of removal relief to the aliens who serve the maximum sentence for violating Section 1325(a), therefore the plain language of the statute is not absurd.

Failure to Exhaust Administrative Remedies 

To establish eligibility for cancellation of removal relief an applicant must have been “physically present in the United States for a continuous period of not less than 10 years,” and “has been a person of good moral character during such 10 year period.” Petitioner argued that the time period during which he must establish he had been a person of good moral character ended when he was provided his notice to appear. First, the Fourth Circuit noted that this argument directly contradicts the BIA’s position on the issue, which states the time period does not end until a final administrative decision has been made. Further, the Fourth Circuit did not have jurisdiction to address this issue because it was not raised before the BIA and therefore Petitioner failed to exhaust all administrative remedies.

The Fourth Circuit rejected Petitioner’s argument regarding his reasons for failing to make this argument before the BIA. Although Petitioner claims it was because his lawyer was unable to receive a copy of the Notice to Appear, which was required to show Petitioner was served before he went to jail, however, Petitioner still failed to raise the argument even after receiving the Notice of Appear.

Due Process Challenge Without Merit 

Petitioner claimed that the combined effect of the statutes at issue violated his due process rights. The Fourth Circuit rejected this claim because it was without merit. To establish a due process violation in a deportation hearing the Petitioner must show both a defect in the proceeding rendered the proceeding fundamentally unfair and the defect prejudiced the outcome of the case. The Fourth Circuit found this was simply Petitioner’s second attempt to challenge the statute’s bar on eligibility for those who are imprisoned for more than 180 days and thus there are no merits.

The Fourth Circuit denied in part and dismissed in part all of Petitioner’s claims.

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3Mar

Nonpermanent Residents who are Convicted for Illegal Entry and Serve the Maximum Sentence of 180 Days are Barred from Showing “Good Moral Character” Under § 1101(f)

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By Katharine Yale

Today in Tiscareno-Garcia v. Holder, a published civil case, the Fourth Circuit denied in part, and dismissed in part Rafael Tiscareno-Garcia’s (“Plaintiff”) petition for review of an order of the Board of Immigration Appeals (“BIA”).

Background Leading up to Removal Proceedings and Procedural History

Plaintiff is a Mexican national who was apprehended three times in less than two years for his illegal presence in the United States. Shortly after his last arrest, Plaintiff illegally entered the US again and avoided apprehension for ten years while living in Raleigh, North Carolina.

In November 2010, Plaintiff was arrested during a workplace raid by the Immigration and Customs Enforcement (“ICE”) division of the Department of Homeland Security (“DHS”). Plaintiff was charged with illegal entry in violation of 8 U.S.C. § 1325(a). Illegal entry is a misdemeanor offense and the sentence for such an offense can be no more than six months. Plaintiff pled guilty. Before serving 181 days in prison, DHS served Plaintiff with a Notice to Appear (“NTA”) stating that he was subject to removal. Once Plaintiff was released from prison, DHS began the removal proceedings.

First, the proceedings went before an Immigration Judge (“IJ”). Plaintiff conceded that he was subject to removal, but argued that removal would cause a hardship to his citizen children and that for the ten years he had been living in the US, he was a law-abiding citizen. The government countered that because Plaintiff was incarcerated for 181 days, he was statutorily barred from establishing “good moral character” under § 1101(f)(7).

The IJ agreed with the government’s contention and BIA affirmed, thereby ruling that Plaintiff was ineligible for cancellation of removal. Plaintiff appealed from BIA’s decision.

Should a Conviction for Illegal Entry Preclude a Finding that an Alien is of Good Moral Character?

Plaintiff’s argument below and on appeal was that illegal entry should not be used to defeat a showing of “good moral character” under § 1101(f)(7). He argued that the court is not bound by the plain language of the statute because including illegal entry under § 1101(f)(7) produces an absurd result.

First, the court reiterated that it must first determine legislative intent, according to Chevron. If the intent of Congress is clear, then the court and the agency must uphold the clear and unambiguous intent of Congress. Plaintiff conceded that the statute was clear and unambiguous, but argued that it would not make sense for Congress to bar aliens from applying for cancellation based on an illegal entry conviction, when it was the illegal entry that rendered the alien removable in the first place. His argument was that almost all nonpermanent residents who apply for cancellation of removal could be charged and convicted of illegal entry, and that therefore the relief under § 1229b(b) would be illusory.

The Fourth Circuit recognized that there are “exceptionally rare” cases when the reading of the plain language of the statute would produce an absurd result at odds with congressional intent and that would “shock the general moral or common sense.” However, the court also recognized that it is “more than a little hesitant” to go against what Congress expressed in a clearly written statute.

Nonpermanent Residents who are Convicted for Illegal Entry and Serve the Maximum Sentence of 180 Days are Barred from Showing “Good Moral Character” Under § 1101(f)

Here, the court found that Plaintiff fell short of demonstrating a truly absurd result. The court concluded that the statutory scheme in § 1229b(b) and § 1101(f) was reasonable in providing the benefit of cancellation of removal to some nonpermanent residents and not to others.   The statute does not provide relief to those nonpermanent residents who conduct themselves in a way that is “antithetical to ‘good moral character,’” or those who spend more than 180 days in jail. Plaintiff fell into the latter category.

The court went on to conclude that it was sensible for Congress to use the length of incarceration “as a proxy for seriousness.” Further, not all nonpermanent residents enter the US illegally as Plaintiff contended. Some nonpermanent residents may be lawfully admitted, but later violate the terms of their visas. Others may be convicted of illegal entry, but do not serve the maximum sentence of 180 days that would preclude them from cancellation of removal.

Under the standard articulated in Sigmon Coal, the court only had to find that there were plausible reasons for Congress to intend the result compelled by the statute. The court held that the reasons stated above were plausible reasons for Congress to exclude relief to those nonpermanent aliens who serve six months in jail for an illegal entry conviction.

If a Conviction for Illegal Entry Precludes a Finding that an Alien is of Good Moral Character, when does the Required Ten Year Showing End?

There are two showings that a plaintiff must make to show eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(1): that he or she has been physically present in the US for at least ten years; and that he or she has been a person of good moral character during the ten year period.   Here, the Plaintiff argued that the ten year period should end when the NTA is served. However, the BIA’s position is that the ten year period ends with the entry of a final administrative decision.

The Fourth Circuit found that it did not have jurisdiction to address this claim because Plaintiff did not raise this argument with the BIA.   The Fourth Circuit can only review final orders of removal and here, Plaintiff did not exhaust all administrative remedies with the agency. The court dismissed Plaintiff’s argument that he was not able to address the issue with BIA because his lawyer did not receive the NTA prior to the order of removal. Plaintiff could have raised the claim after his lawyer was instructed to show why Plaintiff was not ineligible for cancellation of removal, and therefore the government’s failure to provide a copy of the NTA to Plaintiff’s lawyer was not a barrier to exhausting all administrative remedies.

The Fourth Circuit denied in part and dismissed in part Plaintiff’s petition for review of BIA’s order.

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20Feb

Conviction for Forgery of Public Records may Jeopardize Immigration Procedings

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By Lauren D. Emery

In Maria Guzman Pineda v. Eric Holder, Jr.,  an unpublished per curiam opinion released February 20, 2015, the court denied Pineda’s petition for review of an order of the Board of Immigration Appeals (BIA).  Pineda sought review of the BIA’s dismissal of her appeal from an immigration judge’s denial of her application for cancellation of removal.

Can Conviction for Forgery Jeopardize One’s Immigration Proceedings? 

In its proceedings, the BIA determined that a conviction for forgery of a public record was a crime involving moral turpitude and that conviction for this crime renders one ineligible for cancellation of removal.

The Fourth Circuit Grants Appropriate Deference to the Board of Immigration Appeals’ Interpretation of Immigration Law and Regulations

In its opinion, the Fourth Circuit declared that it uses de novo review when addressing questions of law while “affording appropriate deference to the [BIA]’s interpretation of the [Immigration and Nationality Act] and any attendant regulations.”  Further, it declared that, unless a reasonable adjudicator would be compelled to decide otherwise, administrative findings of fact are conclusive.  Upon review of the record, the Fourth Circuit determined that the BIA had substantial evidence to support its factual findings.

Court of Appeals for the Fourth Circuit Denied Petition

The Fourth Circuit upheld the BIA’s decision to deny the petition for review of the immigration judge’s denial of Pineda’s application for cancellation of removal.

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19Feb

No Jurisdiction to Review Discretionary Determinations Regarding Timeliness of Asylum Application

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By Rolf Garcia-Gallont

Today, in the per curiam unpublished opinion of Nguyen v. Holder, the Fourth Circuit upheld the Board of Immigration Appeals’ (“BIA”) dismissal of Dung Duc Nguyen’s appeal from the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

Attorney General’s Determination Regarding The Timeliness of Nguyen’s Asylum Application Is Not Reviewable

8 U.S.C. § 1158(a)(1) provides that any alien who is physically present in the United States may apply for asylum. § 1158(a)(2)(B) imposes a time limit of one year after the date of the alien’s arrival in the United States to file an asylum application. The time limit may be waived if the alien demonstrates to the satisfaction of the Attorney General that changed or extraordinary circumstances justify the delay. § 1158(a)(3) expressly provides that “no court shall have jurisdiction to review any determination of the Attorney General.”

While 8 U.S.C. § 1252(a)(2)(D) allows for judicial review of constitutional claims or questions of law, the Fourth Circuit held in Gomis v. Holder that the question of whether an asylum application is untimely or whether the changed or extraordinary circumstances exception applies “is a discretionary determination based on factual circumstances,” not a question of law.

Because Nguyen did not raise a constitutional claim or a question of law, the court held that it did not have jurisdiction to review the finding that Nguyen’s asylum application was untimely and he did not establish changed or extraordinary circumstances justifying tolling of the one-year time limit.

Substantial Evidence Supported the Immigration Judge’s Finding That Nguyen Was Not Eligible for Withholding from Removal

Under 8 U.S.C. § 1231(b)(3)(B)(iii), an alien may be removed from the United States to his country of origin even if the alien’s life or freedom are threatened, if there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before arriving in the United States.

The immigration judge’s (“IJ”) factual findings regarding whether there were serious reasons to believe Nguyen had committed a serious nonpolitical crime are reviewed for substantial evidence. The court concluded that substantial evidence supported the IJ’s findings, and upheld the dismissal of Nguyen’s appeal.

Finally, the court held that because Nguyen failed to show that it was more likely than not that he would be tortured if he returned to Vietnam, Nguyen was also ineligible for deferral of removal under the CAT.

Petition for Review Denied

The Fourth Circuit affirmed the BIA’s dismissal of appeal, and denied Nguyen’s petition for review.

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17Feb

Fourth Circuit Denies Petition for Review of Immigration Proceedings

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By Katharine Yale

On February 13, 2015 in Hernandez-Cea v. Holder, an unpublished civil opinion, the Court of Appeals for the Fourth Circuit affirmed an order of the Board of Immigration Appeals dismissing Plaintiff’s appeal, thereby denying her petition for review.

Plaintiff Appeals from Immigration Judge’s Denial of Requests in Removal Proceedings

During removal proceedings, a native and citizen of El Salvador, Xiomara Yamileth Hernandez-Cea (“Plaintiff”), requested asylum, withholding of removal, and protection under the Convention Against Torture. The immigration judge denied her requests and Plaintiff appealed to the Board of Immigration Appeals (the “Board”), where her appeal was dismissed.

Orders for Removal are Reviewed for Substantial Evidence and Administrative Findings of Fact are Conclusive

According to 8 U.S.C. § 1252(b)(4)(B), in reviewing an order for removal, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Additionally, the Fourth Circuit set out in Tewabe v. Gonzales that the reviewing court should defer to creditability findings that are supported by substantial evidence.

There was Substantial Evidence to Support the Board’s Adverse Credibility Findings

Here, the court found that its review of the record and all supporting evidence did not compel a ruling contrary to any of the administrative factual findings. Further, the court found that the Board’s adverse credibility findings and denial of protection under the Convention Against Torture were supported by substantial evidence.   A review of Plaintiff’s independent corroborating evidence did not necessitate a different result.

Petition for Review Denied

The Fourth Circuit affirmed the decision of the Board and thereby denied Plaintiff’s petition for review.

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2Feb

Fourth Circuit Addresses Elements Under Immigration Marriage Fraud Statute

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By Elissa Hachmeister

On Monday, February 2, in the criminal case of United States v. Fatih Sonmez, a published opinion, the Fourth Circuit held that the District Court for the District of Maryland did not abuse its discretion when it rejected the defendant’s proposed jury instructions in favor of a charge tracking the actual statutory language.

Immigration Marriage Fraud Conviction and Proposed Jury Instructions

A jury convicted Sonmez of marriage fraud in violation of 8 U.S.C. § 1325(c), which applies when an individual “knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.”

On appeal, Sonmez contended that the district court erred when it rejected his proposed jury instructions on the elements of the offense under Section 1325(c). Specifically, Sonmez’s proposed instructions required the government to prove that “the only reason the marriage was entered into was to obtain an immigration benefit” and that “the defendant and his US citizen spouse had no intent to establish a life together.” Instead, the trial court instructed the jury that the government must prove “that the marriage was entered into for the purpose of evading a provision of the United States immigration laws.”

Denial of Proposed Jury Instructions Reviewed for Abuse of Discretion

A district court’s denial of proposed jury instructions is reviewed for abuse of discretion; to establish abuse of discretion in this context, a defendant must show that the proposed instructions (1) were “correct,” (2) were “not substantially covered by the charge that the district court actually gave to the jury,” and (3) “involved some point so important that the failure to give the instruction[s] seriously impaired the defendant’s defense.” United States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).

Proposed Jury Instructions Were Incorrect Statements of Law

Explaining that it must interpret statutory language as written, see Ignacio v. United States, 674 F.3d 252, 255 (4th Cir. 2012), the Fourth Circuit reasoned that the instructions sought by Sonmez were not supported by the plain language of Section 1325(c), but instead would have changed the elements of the crime.

The Fourth Circuit cited approvingly to the Sixth Circuit’s decision in United States v. Chowdhury, where a similar instruction to the one ultimately given by the trial court, requiring the government to prove that the defendant “entered into the marriage for the purpose of evading the United States immigration laws,” was held proper because it tracked the language of statute. 169 F.3d 402, 406-07 (6th Cir. 1999). Indeed, the majority of circuits that have considered the language of Section 1325(c) have set forth elements consistent with the district court’s instructions to the jury in this case. See United States v. Yang, 603 F.3d 1024, 1026 (8th Cir. 2010); United States v. Darif, 446 F.3d 701, 709-10 (7th Cir. 2006); United States v. Islam, 418 F.3d 1125, 1129-30 (10th Cir. 2005); United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013).

The Fourth Circuit characterized the Ninth Circuit’s contrary decisions, see, e.g., United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002) (requiring as an element of the offense that the government prove that the defendant had no intent to establish a life with his spouse at the time of the marriage), as unpersuasive and imposing “a requirement completely apart from the statutory language.”

Court of Appeals for the Fourth Circuit Affirmed the District Court’s Judgment

The Fourth Circuit affirmed, holding that the district court did not abuse its discretion in declining to give the proposed jury instructions because they were not correct statements of the law.

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27Jan

A Second Chance for Refuge: Fourth Circuit Remands Denial of Political Asylum

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By Caroline Daniel

In a published civil opinion released today, the Fourth Circuit remanded an immigration claim back to the Board of Immigration Appeals (“BIA”).  In Ilunga v. Holder, the Court vacated the BIA’s denial of Plaintiff Faustin Mukadi Ilunga’s (“Ilunga”) petition for asylum and ordered new proceedings consistent with the opinion.

Immigration Judge Questions Ilunga’s Credibility

The Immigration Judge (“IJ”) – who originally considered Ilunga’s asylum application and petition for relief under the Convention Against Torture – questioned Ilunga’s credibility based on inconsistencies in his testimony and his demeanor.  The IJ did not consider independent evidence.  The BIA affirmed her decision, and Ilunga appealed to the Fourth Circuit.

Ilunga Sought Asylum in the United States After Facing Politically Motivated Torture in the Democratic Republic of the Congo

Before seeking asylum, Ilunga resided in the Democratic Republic of the Congo with his wife and five children.  Ilunga was a political activist and zealous member of the Movement for the Liberation of the Congo (“MLC”).  From 2003 to 2006, Ilunga worked for the MLC as a paid employee and was highly visible in the party’s opposition of the 2006 election of President Joseph Kabila.  When President Kabila was elected in 2006, local law enforcement and Kabila supporters threatened Ilunga and vandalized his home.  Additionally, the police murdered some of Ilunga’s colleagues from the MLC.

After these experiences, Ilunga wrote a letter to a friend in Zambia expressing his fear for his and his family’s safety.  The letter also accused President Kabila of assassinating his father.  The letter was intercepted by the police, which led to Ilunga’s arrest and torture.  After being blindfolded, taken from his home, and questioned about the contents of the letter, the police told Ilunga that he “would be killed” for writing the letter.  Ilunga was then sent to prison.

In prison, Ilunga suffered extreme torture each day.  He was sexually assaulted, beaten with an electrical club, stabbed, and battery acid was poured in his wounds.  Several months after being imprisoned, Ilunga and his cellmate, Jean Nkongolo Kalala (“Kalala”), escaped to Zambia with the aid of a prison guard.  The two remained in Zambia for a year, during which time Ilunga’s wife and children were tortured in the Congo.  In 2008, Ilunga’s family escaped to Zambia, and Ilunga and Kalala fled to the United States.

Immigration Judge Abused Discretion in Denying Ilunga’s Petition for Asylum

The Fourth Circuit reviewed the decision as a final agency action, and noted that an asylum order must be upheld unless “manifestly contrary to the law and an abuse of discretion.”  8 U.S.C. § 1252(b)(4)(D).  The IJ noted four reasons for deeming Ilunga’s testimony to be incredible: (1) inconsistencies in Ilunga and Kalala’s testimony about where the torture took place; (2) inconsistencies in Ilunga and Kalala’s testimony about their prayer rituals in prison; (3) the dates on Ilunga’s MLC membership card and letter; and (4) Ilunga’s demeanor during his testimony.  The Fourth Circuit explained a basis for remand on each of these issues, and additionally found that the IJ erred in failing to consider “independent documentary evidence to establish asylum eligibility.”

Immigration Judge Failed to Consider Totality of the Circumstances 

The IJ failed to consider the totality of the circumstances in ruling that Ilunga’s testimony was incredible.  The first reason that led the IJ to deem Ilunga incredible were based on inconsistencies between his and his cellmate Kalala’s testimony.  The IJ determined that it was unclear where the torture in prison took place: while Kalala testified that the abuse occurred outside the cell, Ilunga testified that it happened within the cell and then later changed his testimony.  The Fourth Circuit held that the IJ failed to consider “language-based barriers.”  Ilunga’s native language was Tshiluba, but he claimed to speak French fluently.  Two different translators were used in the proceedings, and the transcript consistently indicated confusion on the part of both Ilunga and Kalala.  The Fourth Circuit held that, in considering the language-based confusion, the minor inconsistencies in testimony were insufficient to deem Ilunga’s testimony incredible.

Second, the IJ found inconsistencies in Ilunga and Kalala’s testimony about their daily prayer habits.  The IJ cited that both witnesses were “hesitant and vague.”  The Fourth Circuit noted that there were absolutely no inconsistencies in the testimony, and that the BIA properly only considered their hesitance as demeanor evidence.  Still, however, the Fourth Circuit found that the vagueness in the testimony pointed to confusion as opposed to incredibility.

Third, Ilunga presented documentary evidence in the form of his MLC membership card and a letter detailing his involvement.  The IJ found that this evidence was incredible because it was dated December 24, 2006 – one day after Ilunga was arrested.  While the Fourth Circuit noted that this could be problematic, it also explained that the IJ and BIA should have considered Ilunga’s “reasonable explanation” for the discrepancy.  Ilunga stated that it was common for law enforcement in the Congo to confiscate and destroy MLC membership information upon arresting MLC members.  Given this explanation, the Fourth Circuit held that this inconsistency was insufficient to “sustain an adverse credibility claim.”

Fourth, the IJ considered Ilunga’s demeanor when testifying in finding him incredible.  The IJ noted that Ilunga “appeared uncomfortable” and was “non-responsive at times” throughout the proceeding.  The Fourth Circuit vehemently disagreed with the IJ’s findings that Ilunga’s discomfort discredited him, calling the determination “unsettling.”  The Fourth Circuit noted that Ilunga had been diagnosed with PTSD, and stated that, “the ability to testify in a cool and collected manner about an experience of torture would arguably raise greater credibility concerns.”

Finally, the Fourth Circuit held that the IJ improperly discounted documentary evidence that Ilunga presented and that the documentary evidence should be considered on remand.

Denial of Asylum Vacated and Remanded for Further Proceedings

Based on the reasoning above, the Fourth Circuit remanded the case to the BIA.  It noted that should the BIA remand the case to an IJ for further proceedings, the case should be heard in front of a different judge.

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22Jan

Fourth Circuit Upholds “Aggravated Felony” Arson Conviction for Lawful Permanent Resident

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By Michael Mitchell

Defendant Challenges Classification of Arson Conviction as “Aggravated Felony” to Avoid Deportation

Today, in Sandra Espinal-Andrades v. Eric Holder, Jr., the Fourth Circuit considered whether the Defendant’s arson conviction qualifies as an aggravated felony under the Immigration and Nationality Act (“INA”). The court reviewed this Board of Immigration Appeals (“BIA”) case de novo.

BIA Found Defendant’s Arson Conviction Qualified for “Aggravated Felony” Classification Sufficient for Removal

Espinal became a lawful permanent resident after she immigrated to the United States from El Salvador in 1999. She plead guilty to one count of first degree arson in exchange for the state dropping her three additional related charges. She was sentenced to 360 days in prison. The Department of Homeland Security believed that the Defendant’s first degree arson conviction qualified as an aggravated felony, a classification that an immigration judge confirmed and ordered for her removal. Her appeal of this aggravated felony classification to the BIA was dismissed based on agency precedent.

Fourth Circuit Finds Congress Intended Aggravated Felony Classification to Cover State Arson Offenses

Relying on Chevron deference, criminal state statutes may qualify as an aggravated felony under the INA in spite of lacking a federal jurisdictional element based on BIA precedent if the agency’s interpretation of the state statute is a “permissible construction.”

Chevron Deference For BIA’s Controlling Precedent Even Though State Crime Lacked Federal Jurisdictional Element

In a published opinion by Circuit Judge Wynn, the Court considered whether the agency’s decision should be afforded deference under Chevron v. NRDC. The first step of Chevron is whether the statute is silent or ambiguous regarding the question presented. If so, the court next determines whether the agency’s interpretation “is based on a permissible construction of the statute.” Typically, BIA’s single-member decisions do not receive Chevron deference “because they lack precedential value.” However, this particular decision relies on precedential en banc and three-member panel decisions, such that this controlling precedent can be given Chevron deference.

Under the INA, aliens convicted of an “aggravated felony at any time after admission is deportable.” While the Maryland statute under which Espinal was charged is nearly identical to the INA, it lacks the federal jurisdictional element that the destroyed property be “used in interstate or foreign commerce.” Nevertheless, the INA states that aggravated felony includes violations of both federal and state law.

Applying Chevron analysis, the court first considered whether “Congress has directly spoken to the precise question at issue” by examining the statute’s plain language meaning. This involved defining the terms “described in” and “defined in,” which the court concluded evidenced Congress’s intent to include state statutes as aggravated felonies even if they did not address a federal jurisdictional element. Thus, the statute was not ambiguous. Furthermore, under the second step of Chevron, the court considered whether the BIA’s interpretation was reasonable applying an “arbitrary and capricious” standard. Because the single-member BIA panel relied on precedential agency decisions, the Fourth Circuit found that the BIA’s interpretation was reasonable to find that Espinal’s arson conviction qualified as an aggravated felony.

BIA’s Classification of “Aggravated Felony” for Arson Conviction Upheld by Fourth Circuit Based on Chevron Deference

The Fourth Circuit denied the Defendant’s petition for review of the BIA’s classification of her arson conviction as an “aggravated felony” under the INA. As a lawful permanent resident convicted of an aggravated felony, Espinal may be deported back to El Salvador.

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14Jan

Va. Unauthorized Use Not Felony Under INA “Theft Offense”

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By Andrew Kilpinen

Today, in Julio Castillo v. Eric Holder, Jr., the 4th Circuit vacated an order of removal finding that Castillo’s 1995 conviction of unauthorized use of a motor vehicle does not qualify categorically as an “aggravated felony” under the Immigration and Nationality Act (“INA”).

Castillo argued on appeal that his conviction for unauthorized use of a motor vehicle did not qualify as an “aggravated felony” because it is not a “theft offense.” The INA defines “aggravated felony” to include “theft offenses,” but does not define a “theft offense.”

The Board of Immigration Appeals (“BIA”) has interpreted “theft offenses” to “[consist] of the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” In re Garcia-Madruga, 24 I.&N. Dec. 436, 440 (BIA 2008).

The 4th Circuit undertook a categorical analysis to determine if the underlying elements of the Virginia crime Castillo was convicted of constituted an “aggravated felony” under the INA. In essence, the 4th Circuit examined Virginia Appellate Court decisions to determine whether an individual could be realistically convicted under the elements of unauthorized use in Virginia while not satisfying the elements of “aggravated felony.”

The INA’s “theft offense” does not consider “glorified borrowing” a felony; however, the 4th Circuit found that the Virginia code could realistically impose a felony conviction for “glorified borrowing.” Therefore, the Court vacated Castillo’s removal order.

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12Jan

Sunset Date For Alien Seeking Adjustment of Status Under 8 U.S.C. § 1255(i) Cannot Be Equitably Tolled

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By: Steven M. Franklin

Today, in Prasad v. Holder, the Fourth Circuit affirmed the Board of Immigration Appeals’ (BIA) order dismissing Mr. Kamleshwar Prasad’s adjustment of status claim under 8 U.S.C. § 1255(i)(1)(B)(ii) for failure to show prima facie eligibility for relief.

Petitioner Prasad Sought to Become Lawful Permanent Resident Under 8 U.S.C. § 1255(i)

Mr. Kamleshwar Prasad is a native citizen of India who is unlawfully present in the United States. Currently undergoing cancer treatment, Mr. Prasad sought to become a lawful permanent resident under Section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i). Under this exception, an unlawfully present alien may be eligible for an adjustment of status if he is the beneficiary of a labor-certification application filed on or before April 30, 2001.

Mr. Prasad was admitted to the U.S. around May 11, 2000, and his then-employer retained Mr. Earl S. David to assist Mr. Prasad with his labor-certification and visa petition. Unfortunately, Mr. David, failed to file the labor-certification application until July 13, 2001, two months after the statutory deadline. In fact, it appears that Mr. Prasad was not the only individual affected by Mr. David’s poor performance, as he was suspended in 2004, for fifteen months from the practice of law in New York and from practice before the BIA.

In 2007, assisted by different counsel, Mr. Prasad filed for an adjustment of status. The United States Citizenship and Immigration Services denied this request, determining that Mr. Prasad was not the beneficiary of a labor-certification application filed on or before April 30, 2001. Mr. Prasad filed a motion to reopen and reconsider, arguing that Mr. David’s ineffective assistance should serve as a basis for equitable tolling of the § 1255(i) deadline. However, the Immigration Judge denied this request, which was subsequently affirmed by the BIA.

Prasad Argues § 1255(i) Sunset Date Operates as a Statue of Limitation

The central issue in this case is whether § 1255(i) sunset date of April 30, 2001, operates as a Statute of Limitation (SOL) or Statute of Repose (SOR). If, as Mr. Prasad argues, § 1255(i) is an SOL, equitable tolling of the deadline may be appropriate in extraordinary circumstances. In this case, Mr. Prasad made every effort to comply with the April 30, deadline, but he was prevented from doing so due to Mr. David’s extraordinary deficiencies.

Fourth Circuit Concludes § 1255(i) Sunset Date Operates as a Statute of Repose

The Fourth Circuit concluded that the April 30, 2001, sunset date operates as an SOR, and thus may not be tolled. In reaching this decision, the Court looked at two differentiating factors between an SOL and an SOR.

First, the Court analyzed the fixed and specific time-certain date by which applications must be filed. SOL’s are typically tied to the date on which the claim accrues, which allows for different deadlines for different plaintiffs. SOR’s on the other hand, typically have a fixed deadline that is the same for everyone. § 1255(i)’s deadline of April 30, 2001, is thus a prime example of an SOR.

Second, an SOL operates as “a procedural time limit on the bringing of some extrinsic cause of action.” An SOR, however, “creates a substantive right in those protected to be free from liability after a legislatively determined period of time.” Here, § 1255(i) defines the substantive right, that an unlawfully admitted alien may adjust his or her status to a lawfully admitted alien for permanent residence, and the sunset date is simply one of the statutory conditions that must be met for adjustment.

The Court also looked to its previous decision in Suisa v. Holder, where the Fourth Circuit interpreted § 1255(i)’s sunset date as marking a “substantive endpoint on status-adjustment eligibility.” The Court also agreed with the Ninth Circuit in Balum-Chuc v. Mukasey, that had Congress wanted to extend the deadline beyond April 30, 2001, it could have easily done so. Its legislative history further supports this rationale, as Senator Kennedy recommended an extension for incomplete applications submitted before the sunset date, but failed to make any recommendation allowing the deadline to be waived or tolled.

The Fourth Circuit Affirms

Although recognizing that the enforcement of this deadline may lead to hardship in individual cases, especially in the case at hand, the Court does not have the authority to expand on that “carefully crafted and limited exception.” Thus, the Fourth Circuit affirmed the BIA’s order, dismissing Prasad’s appeal for failure to show prima facie eligibility for relief.

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