Per Marin-Rodriguez v. Holder (7th Cir. Mar. 6, 2013)
This Seventh Circuit opinion widens one split, while continuing another.
The first, already extant split concerns whether immigration courts (IJs or the BIA) may consider material outside the record of conviction when determining whether a crime constitutes a crime of moral turpitude. This blog already discussed the split here. In brief, the CA7 and the Attorney General have concluded that, because the immigration context does not raise Sixth Amendment concerns, immigration courts should not be limited to the categorical and modified-categorical approaches to past convictions. (p. 6-7.) The CAs 3, 4, 8, and 11 have rejected this position. (Id. at n.3.) For the reasons discussed in my prior post, I am persuaded by the minority of the CA7 and AG, although the majority also has strong arguments (primarily based on a 1951 Supreme Court precedent holding that the words "moral turpitude" had a positive and fixed meaning). To say the least, this is an issue ripe for certiorari review.
But not in this case. This case did not even reach outside the modified categorical approach, which revealed that the alien had used a fake social security card for employment. The CA7 joins with the CAs 5, 6, and 8 in determining that such fraudulent actions necessarily involve moral turpitude, because the false social security card is used to deceive the employer, or anyone examining the employer's records. (Fraud is a prototypical example of moral turpitude.) The minority--only the CA 9--relies on an entirely different statute, 42 U.S.C. 408(e)), which grants amnesty for having previously used false social security cards to aliens granted citizenship. The CA9 believes that the exemption demonstrates that the use of a false social security card is only malum prohibitum, and not malum in se. I would conclude the opposite. The amnesty demonstrates that the use of a false social security card is malum in se, but to be forgiven when the alien is given a new shot at becoming a law-abiding citizen.
In all, a correct--and well-written--opinion by Judge Manion, but certainly some issues that may warrant certiorari review if a better vehicle presents itself.
Showing posts with label Immigration Law. Show all posts
Showing posts with label Immigration Law. Show all posts
Sunday, March 10, 2013
Monday, February 25, 2013
Split Noted: Must An IJ Provide Notice Of The Need For Corroboration?
Per Pulatov v. Holder (6th Cir. Feb. 25, 2013)
In 2005, Congress passed the REAL ID Act. The effect of the statute was largely to abrogate several lines of outlier, pro-immigrant precedent from a certain "liberal" circuit. One of the abrogated lines of precedent held that an Immigration Judge could not require corroboration from a credible alien.
In lieu of the no-corroboration rule, the REAL ID Act provided, in a clause now codified as 8 U.S.C. 1158(b)(1)(B)(ii):
The CA7 concludes that the statute already provides notice of the need for corroboration, because testimony alone only "may be" sufficient, and administrative efficiency does not require a second opportunity to obtain it.
In contrast, the CAs 3 and 9 hold that the statutory language requires opportunity to respond. Specifically, the Ninth Circuit relies on the tense of "should provide" and "must be provided" to conclude that the "language focuses on conduct that follows the IJ's determination, not precedes it[;] the statute's future directed language means that the applicant must be informed of the corroboration that is required." (Third emphasis added).
I come down in the middle of this split. Specifically, I agree with the Seventh Circuit that the statute provides notice of the general need for corroboration. And I disagree with the Ninth Circuit that the statute uses future directed language--all of the verbs highlighted are in the present tense. Thus, I don't think additional advance notice of the need for corroboration is required.
But once an IJ concludes that corroboration is necessary, the statute does mandate--as the CAs 3 and 9 conclude, that the alien be provided an opportunity to respond. Such a response could take two forms:
In 2005, Congress passed the REAL ID Act. The effect of the statute was largely to abrogate several lines of outlier, pro-immigrant precedent from a certain "liberal" circuit. One of the abrogated lines of precedent held that an Immigration Judge could not require corroboration from a credible alien.
In lieu of the no-corroboration rule, the REAL ID Act provided, in a clause now codified as 8 U.S.C. 1158(b)(1)(B)(ii):
The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.(Emphases added). In this unpublished disposition, the CA6 notes, but does not resolve a split between the CA3 and CA9, on the one hand, and the CA7, over whether an IJ must provide notice and an opportunity to respond after reaching the determination that corroboration is necessary. (p. 7 n.5).
The CA7 concludes that the statute already provides notice of the need for corroboration, because testimony alone only "may be" sufficient, and administrative efficiency does not require a second opportunity to obtain it.
In contrast, the CAs 3 and 9 hold that the statutory language requires opportunity to respond. Specifically, the Ninth Circuit relies on the tense of "should provide" and "must be provided" to conclude that the "language focuses on conduct that follows the IJ's determination, not precedes it[;] the statute's future directed language means that the applicant must be informed of the corroboration that is required." (Third emphasis added).
I come down in the middle of this split. Specifically, I agree with the Seventh Circuit that the statute provides notice of the general need for corroboration. And I disagree with the Ninth Circuit that the statute uses future directed language--all of the verbs highlighted are in the present tense. Thus, I don't think additional advance notice of the need for corroboration is required.
But once an IJ concludes that corroboration is necessary, the statute does mandate--as the CAs 3 and 9 conclude, that the alien be provided an opportunity to respond. Such a response could take two forms:
- An explanation that the alien had previously sought the requested corroboration, and was unable to obtain it, in which case the IJ would have to evaluate the explanation and determine whether the requested evidence is reasonable obtainable.
- An explanation that the alien had not previously sought the requested corroboration, and believes he would be able to provide it, in which case the IJ would have to determine whether the alien acted reasonably.
- If the applicant reasonably believed the requested corroboration related to a minor point in his story or would be cumulative, the applicant should be afforded a continuance to obtain the requested evidence.
- If the applicant acted unreasonably in failing to seek the requested corroboration despite the statutory notice, because it related to a central and uncorroborated point in his story, then the IJ could deny asylum because the alien may simply be seeking to delay the inevitable.
Monday, April 7, 2008
Split Created: Can an Immigration Judge Consider Matters Outside the Record of Conviction When Classifying an Offense as a Crime of Moral Turpitude?
Per Ali v. Mukasey, 2008 WL 901467, *5-*11 (7th Cir. Apr. 4, 2008).
This Seventh Circuit decision, not to be confused this one (cert pending, considered reasonable - SCOTUSBlog) of the same name and circuit, resolves an intra-circuit split and creates a split between the circuits. Moreover, it does so convincingly; not one active judge requested that the case be taken en banc despite the fact that it does so.
Ibrahim Ali, a Jordanian citizen, has resided in the United States for more than twenty years and is married to a U.S. citizen. He also sold guns, without a license, to people not authorized to own them. He was convicted of violating 18 U.S.C. § 371, which prohibits conspiring either to commit a crime against the United States or to defraud the same. This conviction blocks most avenues of discretionary relief from removal; Ali is only eligible for readmission to the United States (and therefore to seek adjustment of status) if his crime is not one ‘involving moral turpitude.’
Fraud has long been recognized as a crime of moral turpitude. The formal crime for which Ali was convicted, however, did not require fraud – it only required either fraud or a conspiracy to commit a crime against the United States. “The presentence report adds: ‘it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy’.” *6. Based on the consideration of this document, the immigration judge decided that this crime was one involving moral turpitude. The question that the Seventh Circuit reviews is whether such consideration is permissible.
This panel was confronted by conflicting circuit precedent – one case had permitted such consideration while two others found it impermissible. All of the other circuits had all previously forbidden consideration of materials outside the indictment and record of conviction. Their reasoning was based, in large part, on the Supreme Court criminal law precedents of Taylor and Shepard, which limit consideration of previous convictions to the statutory elements of the offense and the official record of conviction.
This panel reaches a different conclusion. Judge Easterbrook starts his opinion, on behalf of a unanimous panel, by noting that the classification of an offense as one involving moral turpitude is entitled to Chevron deference. The Board of Immigration Appeals has recently decided that an immigration judge may take additional evidence as needed to characterize an already proven offense. In Matter of Babaisakov (*5-*13), the BIA reasoned that when the characterization of the offense does not depend solely on the elements of the offense, the categorical approach does not apply. Judge Easterbrook continues to distinguish the precedents of the other circuits by noting their criminal law genesis – neither Sixth Amendment nor jury concerns are at issue in the immigration context.
I believe that this decision (or, more importantly, the change in the BIA position it notes) will prove influential if the question arises again in other circuits or is granted certiorari. That said, this case took me longer than normal to summarize because I am not at all familiar with the area, so I may be missing something big. Any and all input to correct my errors would be welcomed.
This Seventh Circuit decision, not to be confused this one (cert pending, considered reasonable - SCOTUSBlog) of the same name and circuit, resolves an intra-circuit split and creates a split between the circuits. Moreover, it does so convincingly; not one active judge requested that the case be taken en banc despite the fact that it does so.
Ibrahim Ali, a Jordanian citizen, has resided in the United States for more than twenty years and is married to a U.S. citizen. He also sold guns, without a license, to people not authorized to own them. He was convicted of violating 18 U.S.C. § 371, which prohibits conspiring either to commit a crime against the United States or to defraud the same. This conviction blocks most avenues of discretionary relief from removal; Ali is only eligible for readmission to the United States (and therefore to seek adjustment of status) if his crime is not one ‘involving moral turpitude.’
Fraud has long been recognized as a crime of moral turpitude. The formal crime for which Ali was convicted, however, did not require fraud – it only required either fraud or a conspiracy to commit a crime against the United States. “The presentence report adds: ‘it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy’.” *6. Based on the consideration of this document, the immigration judge decided that this crime was one involving moral turpitude. The question that the Seventh Circuit reviews is whether such consideration is permissible.
This panel was confronted by conflicting circuit precedent – one case had permitted such consideration while two others found it impermissible. All of the other circuits had all previously forbidden consideration of materials outside the indictment and record of conviction. Their reasoning was based, in large part, on the Supreme Court criminal law precedents of Taylor and Shepard, which limit consideration of previous convictions to the statutory elements of the offense and the official record of conviction.
This panel reaches a different conclusion. Judge Easterbrook starts his opinion, on behalf of a unanimous panel, by noting that the classification of an offense as one involving moral turpitude is entitled to Chevron deference. The Board of Immigration Appeals has recently decided that an immigration judge may take additional evidence as needed to characterize an already proven offense. In Matter of Babaisakov (*5-*13), the BIA reasoned that when the characterization of the offense does not depend solely on the elements of the offense, the categorical approach does not apply. Judge Easterbrook continues to distinguish the precedents of the other circuits by noting their criminal law genesis – neither Sixth Amendment nor jury concerns are at issue in the immigration context.
I believe that this decision (or, more importantly, the change in the BIA position it notes) will prove influential if the question arises again in other circuits or is granted certiorari. That said, this case took me longer than normal to summarize because I am not at all familiar with the area, so I may be missing something big. Any and all input to correct my errors would be welcomed.
Monday, March 31, 2008
Split Noted: What Standard Applies to Determine if Defendant’s Substantial Rights Were Affected When Reviewing for Plain Error?
Per United States v. Rojas-Luna, 2008 WL 788611, *7-*8 (5th Cir. Mar. 26, 2008)
I can’t add anything to Fifth Circuit Blog’s extended summary of the case, without which I would not have found the opinion. For a discussion of the relevant facts and law, please click on that link, I will only briefly outline the circuit split the decision notes.
When a error goes unobjected to at trial, appellate courts will review only for plain error. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would effect the fairness, integrity, or public reputation of judicial proceedings.
In this case, the Fifth Circuit examines a sentencing enhancement to see if the erroneous application thereof effected Rojas-Luna’s substantial rights (element 3). In order to satisfy element three in the Fifth Circuit, all an appellant need show is that it affected the outcome of the proceedings below. The panel notes that the Ninth Circuit applies a more stringent test, requiring the defendant to raise reasonable doubt that a rational jury would have found him guilty if the error had been absent.
This split results in opposite results in two factually indistinguishable cases. The CA 5 vacates an enhanced sentence and remands, whereas the CA 9 affirms. That is not a typo – it is easier to prove plain error in the CA 5 than the CA 9. It will be interesting to see if the government pursues cert on this issue – the presence of factually indistinguishable cases reaching contradictory results certainly might help get it granted and the court seems more friendly to its position in this case.
I can’t add anything to Fifth Circuit Blog’s extended summary of the case, without which I would not have found the opinion. For a discussion of the relevant facts and law, please click on that link, I will only briefly outline the circuit split the decision notes.
When a error goes unobjected to at trial, appellate courts will review only for plain error. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would effect the fairness, integrity, or public reputation of judicial proceedings.
In this case, the Fifth Circuit examines a sentencing enhancement to see if the erroneous application thereof effected Rojas-Luna’s substantial rights (element 3). In order to satisfy element three in the Fifth Circuit, all an appellant need show is that it affected the outcome of the proceedings below. The panel notes that the Ninth Circuit applies a more stringent test, requiring the defendant to raise reasonable doubt that a rational jury would have found him guilty if the error had been absent.
This split results in opposite results in two factually indistinguishable cases. The CA 5 vacates an enhanced sentence and remands, whereas the CA 9 affirms. That is not a typo – it is easier to prove plain error in the CA 5 than the CA 9. It will be interesting to see if the government pursues cert on this issue – the presence of factually indistinguishable cases reaching contradictory results certainly might help get it granted and the court seems more friendly to its position in this case.
Tuesday, March 4, 2008
Splits Noted in the Circuits - 3/3-3/4
I'm on break, so apologies for the typographical errors as I try to catch up on the recent opinions - I'm away from a bluebook and my internet connection does not allow me to check for spelling errors. Further, any comments to let me know this blog is catching on would be most appreciated. Finally, the third case in this list is not a new case, but stems from a denial of rehearing en banc.
- Is False Identification - or Misprision of a Felony - a Crime of Moral Turpitude? Blanco v. Mukasey, 2008 WL 553869, *8, n. 4 (9th Cir. Mar. 3, 2008)
One is not eligible for cancellation of removal if one has committed a crime of moral turpitude, which the Supreme Court has determined includes any crime that involves fraud. In this case, Blanco applied for cancellation of of removal, but was rejected because of, in relevant part, his conviction for false identification to a peace officer. The Ninth Circuit, relying on a prior Pregerson/Reinhardt opinion, holds that, because the California law's definition of false identification does not require the defendant to have materially benefited from that act notwithstanding any impediment to the investigation, the crime does not categorically involve moral turpitude. In so doing, the Ninth deepens a split from the CA 7 and 11.
- Does a Motion for Reduction of Sentence as a Matter of Discretion, Rather than Legality, Toll AEDPA's One Year Limitation Period for Collateral Review? Alexander v. Sec., Dep't of Cor., 2008 WL 553294, *15-*18 (11th Cir. Mar. 3, 2008)
This isn't a pure split; it turns on state law motions to reduce sentences which have slight differences. In pertinent part, however, these motions are based in the same laws -- laws which allow the district court to reduce a sentence imposed not as a matter of legal review, but rather clemency. The Eleventh Circuit holds, in accordance with its own precedent and joining with the CA 3 and 4, that applications for leniency should not toll AEDPA's strict deadlines for the review of the legality of a sentence; only the Tenth Circuit disagrees.
- Is there a Presumption of Prosecutorial Misconduct When the New Charges Involve Distinct Factual Circumstances, United States v. Jenkins, 2008 WL 564980, *7-*11 (9th Cir, Mar. 4, 2008)
As noted in the introduction, this case is not a new panel opinion, but rather comes to this blog from the denial of rehearing en banc. It is also fitting to cover this opinion, as tomorrow's general interest post on Indian Sovereignty is inspired by the author of the panel opinion at issue.
Sharon Ann Jenkins unequivocally admitted to alien smuggling (1) while testifying in her own defense against charges of marijuana smuggling (2); she had also admitted the former crime in previous statements to police. On the first day of the jury's deliberation in a trial for crime (2), the U.S. Attorney sought to indict the defendant for the admitted crime (1). The District Court dismissed the charges as a prophylactic measure to protect Jenkins' Fifth Amendment rights and the panel affirmed. The panel created a rule that if, absent the in court testimony, there was sufficient evidence to charge the second (1) crime at the time of the first (2) trial, a presumption of vindictiveness arises.
Judge O'Scannlain, on behalf of six others, dissents from the denial of rehearing en banc, noting that both the 7th and 11th Circuits have held that when different criminal conduct is charged, there is no presumption of vindictiveness and no burden shifting. Furthermore, the 1st, 8th, and 10th Circuits have held that charges arising out of distinct factual nuclei cannot give rise to any presumption of vindictiveness. Perhaps lightning will strike once again?
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