Top of the Ninth: Aug 10, 2018 – Part two

Part II – Board of Immigration Appeals Decisions

The BIA issued two decisions this past week, both of which I think might be over-turned in whole or in part. First, the BIA expanded the definition of a crime involving moral turpitude to include morally reprehensible crimes that are contrary to the standards of a civilized society (including cockfighting). Second, the BIA clarified that there are no temporal limits for crimes involving moral turpitude under INA § 237(a)(2). Third, the BIA held that a “judgment” for contempt of court equals a conviction as defined by INA § 101(a)(48). As I said, if the term a “crime involving moral turpitude” was not unconstitutionally vague before, I think it is now.

The Board of Immigration Appeals Extends the Definition of a Crime Involving Moral Turpitude to Include Morally Reprehensible Crimes that are Contrary to the Standards of a Civilized Society

In what appears to be an on-going fight with the Ninth Circuit the BIA expanded the definition of a crime involving moral turpitude (CIMT) and held that this new expansive definition is controlling in the Ninth Circuit even though the Ninth Circuit’s definition of a CIMT is notably more circumscribed. We’ll see. I think that the BIA’s new definition may be unconstitutionally vague, and it is definitely ripe for challenge. In the same decision, the BIA held that the temporal limits of a CIMT under the grounds of deportability (INA § 237) do not apply for purposes of statutory eligibility for non-lawful permanent resident cancellation of removal. In other words, if a noncitizen, who entered the United States without inspection, and is applying for cancellation of removal for non-lawful permanent residents, is ever convicted of a removable offense (CIMT, drug offense, domestic violence offense, or child abuse) then s/he is statutorily ineligible for cancellation of removal. This particular case has already gone up to the Ninth Circuit (resulting in a published decision) and has come back down again. This is the second published decision by the BIA on this case and the third published decision overall. It is a case that involves cockfighting, and whether cockfighting is categorically a CIMT. If it is, then is the noncitizen statutorily precluded from establishing eligibility for cancellation of removal for having been convicted of a CIMT under INA § 237(a)(2)? Spoiler alert – the BIA held that it is a CIMT and that the noncitizen is statutorily ineligible for cancellation.

Augustin Ortega-Lopez is a native and citizen of Mexico, who was present in the United States without being admitted or paroled. (This fact is rather interesting in terms of the posture and outcome of the case). In 1992 he entered the United States without inspection. He has three U.S. citizen children. In 2009, he was convicted in U.S. District Court of sponsoring or exhibiting an animal in an animal fighting venture (namely cockfighting) – a misdemeanor. He was sentenced to one-year probation and no jail time. In 2011, the Immigration Court ordered him removed and held that he was statutorily ineligible for cancellation of removal for non-lawful permanent residents under INA § 240A(b) because he had been convicted of a CIMT as defined by 237(a)(2)(A)(i). The BIA published a decision upholding the Immigration Court’s decision. Matter of Ortega-Lopez, 26 I.&N. Dec. 99 (BIA 2013). The case went to the Ninth Circuit and the Ninth Circuit, in a published decision, found that the underlying offense was categorically not a CIMT. The Ninth Circuit noted, “In 2008, Ortega-Lopez pled guilty to one misdemeanor count of cockfighting. He was hardly the Don Corleone (or even the Fredo) of this enterprise.” Ortega-Lopez v. Lynch, 834 F.3d 1015 (9th Cir. 2016). In a very humorous decision, that is well worth reading just because of the wry writing, the Ninth Circuit held that CIMTs fall into two categories, those involving fraud and those involving grave acts of baseness or depravity. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012). The Ninth noted that non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class. Nunez v. Holder, 594 F.3d at 1131. The Ninth held, “[w]hile our case law does not explicitly require the BIA to apply this language in Nunez, we think a remand to consider this language is appropriate here, as the crime at issue involving harm to chickens is, at first blush, outside the normal realm of CIMTs.” Ortega-Lopez, 834 F.3d at 1018. The Ninth remanded the case to the BIA.

Well, the BIA came back with a vengeance and found that a crime involving harm to chickens is a CIMT. Additionally, the BIA found that Mr. Ortega-Lopez was barred from cancellation of removal under INA § 237(a)(2)(A)(i) even though the crime fell under the petty offense exception and wasn’t a removable offense under INA § 212(a)(2). More specifically, the Ninth Circuit had disagreed with the BIA’s decision in Matter of Cortez, 25 I.&N. Dec. 301 (BIA 2010) that the plain language of section 240A(b)(1)(C) provides that only offense-specific characteristics are applicable in determining whether a noncitizen has been convicted of an offense under one of those sections. Lozano-Arrendono v. Sessions, 866 F.3d 1082 (BIA 2017). We need to divide this analysis into two parts as they are both important. First, we need to analyze the BIA’s new definition of a CIMT. And, second, we need to analyze when a noncitizen is statutorily precluded from establishing eligibility for non-lawful permanent resident cancellation of removal.

Crime Involving Moral Turpitude

The BIA expanded the definition of a CIMT. The BIA noted that to constitute a CIMT the offense must have two essential elements: 1) a culpable mental state and 2) reprehensible conduct. The important prong here is the “reprehensible conduct” element. Conduct is reprehensible if it is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. This determination regarding the nature of a crime is governed by contemporary moral standards and may be susceptible to change based on the prevailing views in society. Matter of Ortega-Lopez, 27 I.&N. Dec. at 385. The BIA noted that the Ninth Circuit has created its own definition of CIMTs and that those crimes fall into two categories: 1) those involving fraud; and 2) those involving grave acts of baseness and depravity. The crimes that fall into the second category almost always involve an intent to injure, injury to a person, or an act affecting a protected class. The BIA noted that the Ninth Circuit remanded this case to see if an offense that does not involve fraud falls into one of those three categories.

The BIA declined the invitation. The BIA found that while the principles may be useful guideposts the Board was not limited to the foregoing categories. The Board held that it can review CIMTs on a case by case basis and that it can recognize various crimes outside those guidelines as CIMTs. The BIA held,

“In our view, conduct such as prostitution and incest is so contrary to the standards of a civilized society as to be morally reprehensible.*.*.*. We recognize these crimes as morally reprehensible not on account of the presence of harm or the need to protect a vulnerable segment of society, but because of the socially degrading nature of commercialized sexual services and incestuous sexual relations. These crimes “offend[] the most fundamental values of society. *.*.*. We consider the crime of sponsoring or exhibiting an animal in a fighting venture to be of a similar nature. For these reasons, we conclude that in assessing whether an offense that does not involve fraud is a crime involving moral turpitude, the absence of an intent to injure, an injury to persons, or a protected class of victims is not determinative. We find it appropriate to apply this rule nationwide, including in the Ninth Circuit, because a single rule furthers the paramount need for “uniformity in the administration of immigration laws.”

Matter of Ortega Lopez, 27 I.&N. Dec. at 386-87.

Needless to say, the BIA found that cockfighting is categorically a CIMT. But, the Board recognized that cockfighting is not illegal in all jurisdictions through out the United States. However, the fact that several territories of the United States have not updated their laws to ban some forms of animal fighting does not change the BIA’s conclusion “regarding the profoundly degrading nature of such conduct.” Matter of Ortega Lopez, 27 I.&N. Dec. at 390.

I don’t see how this definition of a CIMT withstands a constitutional vagueness claim. How in the world, is a person on notice of what constitutes a CIMT in general if it is decided on a case by case basis because the crime is “socially degrading” based on “community standards”? Let’s face it, the community standards in San Francisco, are very different from the community standards in Birmingham. How can you create a nation-wide standard that is effectively based on local community standards? How can the U.S. government deport a person for a crime that isn’t even a crime in parts of the country? Plus, the third prong is so amorphous, it is impossible to determine what it means. Finally, while I respect the BIA’s concern for animals and animal welfare, where exactly is their concern for U.S. citizen children who are going to be separated from their parent?

When is a Noncitizen Statutorily Precluded From Establishing Eligibility for Non-Lawful Permanent Resident Cancellation?

The next part of this case deals with what is an offense under INA § 237(a)(2)? Let’s back up. In order to qualify for non-lawful permanent resident cancellation of removal, the noncitizen must establish that s/he has not been convicted of an offense under INA §§ 212(a)(2), 237(a)(2) or 237(a)(3). INA § 240A(b)(1)(C). Now, here is the problem, and bear with me, we are going deep into the weeds of statutory construction here. INA § 212(a)(2) lists the criminal grounds for inadmissibility and it including crimes involving moral turpitude, controlled substance offenses, prostitution, money laundering, and human trafficking. It also includes the petty offense exception for CIMTs. The petty offense exception provides that if a noncitizen has been convicted of only one CIMT and the maximum sentence for the offense does not exceed one-year imprisonment, and the noncitizen was sentenced in excess of six months, then the offense falls under the petty offense exception and the noncitizen is not inadmissible. The next part of the statute that we have to look at is Section 237(a)(2) – the criminal grounds for deportability. These grounds include CIMTs, aggravated felonies, high speed flight, failure to register as a sex offender, controlled substance offense, firearms offenses, domestic violence offense, and trafficking. The BIA and the Courts have been very clear that a noncitizen who entered without inspection is still statutorily precluded from obtaining non-lawful permanent cancellation of removal if s/he was convicted of an offense under Section 237(a)(2) or 237(a)(3) (which includes document fraud and false claim to U.S. citizenship) which may not be an inadmissible offense. The problem is, Section 237(a)(2) has temporal limits for crimes involving moral turpitude. Namely, a noncitizen who has been convicted of a CIMT within five years of admission is deportable provided a sentence of one year or longer may be imposed. Here, Mr. Ortega-Lopez was never admitted to the United States, though the underlying conviction occurred many years after he came to the United States. So, is he statutorily precluded from establishing eligibility for non-lawful permanent resident cancellation of removal for having been convicted of a CIMT that clearly falls under the petty offense exception, and would likely not have been a removable CIMT had he entered the United States with a non-immigrant visa and had overstayed? The Ninth Circuit recognized that this statute was ambiguous and remanded it to the BIA in accordance with Chevron. Lozano-Arrendondo v. Sessions, 866 F.3d 1082 at 1090 (9th Cir. 2017).

The question that the BIA had to decide is whether the reference to the term “an offense under” 212(a)(2), 237(a)(2), and 237(a)(3), incorporates all or part of those sections, or did Congress intend some other interpretation of the statute? The BIA held that while it is clear that all offenses described in Sections 212(a)(2), 237(a)(2) and 237(a)(3) apply to all noncitizens – regardless of whether they have been admitted, what is unclear are the remaining parts of the statute (those related to temporal and numeric limitations). The BIA has held in the past, that neither the “admission” requirement of the statute nor the temporal part of the statute is part of the offense under that section.

The Ninth Circuit in Lozano-Arrendondo instructed the BIA to consider whether a more reasonable interpretation of the statute is whether it is possible to construe the term “admission” to mean physical “entry” in this context. In other words, while it is clear that a person who entered the United States without inspection and committed a CIMT within three years of entry is removable under 237(a)(2) for having been convicted of a CIMT within five years. But, what about a person who entered the United States without inspection and committed a CIMT within 10 years of entry? Is that person statutorily ineligible for non-lawful permanent resident cancellation of removal for having been convicted of a crime as defined under Section 237(a)(2)? The BIA held that there were no temporal limits. “[I]t is our continued view that the most reasonable reading of section 240A(b)(1)(C) is that it cross-references a selected segment – the “offense” – of a collective whole – the corresponding ground of removability under section 212(a)(2), 237(a)(2) or 237(a)(3).” Ortega-Lopez, 27 I.&N. Dec. at 393. The BIA goes on to explain that the “”admission” and the temporal requirements throughout section 237(a) of the Act are significant in determining an alien’s removability, and Congress created these requirements for this purpose. The fact that they are inapplicable in determining an alien’s eligibility for relief under section 240A(b)(1)(C) does not render them superfluous.” Ortega-Lopez, 27 I.&N. Dec. at 394.

The BIA concluded that Mr. Ortega-Lopez’s conviction for cockfighting was categorically a CIMT. Therefore, he was deportable under INA § 237 (remember, the offense fell under the petty offense exception for inadmissibility) and was statutorily ineligible for cancellation of removal as defined by INA § 240A(b)(1)(C). Arguably, a noncitizen who entered the United States with inspection, who overstayed a non-immigrant visa, who then was convicted of a CIMT more than five years after admission, and the CIMT also fell under the petty offense exception of inadmissibility under INA § 212(a)(2) would be eligible for cancellation of removal for non-lawful permanent residents. I assume this case will go back to the Ninth Circuit on all issues.

Matter of Ortega-Lopez, 27 I.&N. Dec. 382 (BIA 2018).

The Categorical Approach Does Not Govern Whether a Conviction for Violation of a Protection Order Under INA § 237(a)(2)(E) Renders a Noncitizen Ineligible for Non-Lawful Permanent Resident Cancellation of Removal

This case was also remanded from the Ninth Circuit to consider the noncitizen’s eligibility for non-lawful permanent cancellation of removal under INA § 240A(b) where the noncitizen had a “General Judgment of Contempt” for violation of a protection order. Did the judgment constitute a conviction under INA § 237(a)(2)(E)(ii) making the noncitizen statutorily ineligible for cancellation of removal? The BIA said yes. This case could have larger implications as more noncitizens are going to the state courts to get their convictions vacated for immigration purposes. We know that the Attorney General has asked for briefs about whether a controlled substance conviction that has been vacated under California Penal Code § 1203.43 is still a controlled substance conviction. This case could be a sign that the BIA and the Attorney General are trying to scale back on recognizing post-conviction relief for noncitizens.

Julio Medina-Jimenez is a native and citizen of Mexico who entered the United States without inspection in 1995. On July 28, 2010, he pleaded guilty to contempt of court for violating a protection order issued by a state court in Oregon. He was sentenced to seven days in jail and eighteen months of probation. On July 30, 2010, DHS issued a Notice to Appear charging that Mr. Medina-Jimenez was inadmissible under INA § 212(a)(6) for being present in the United States without being admitted or paroled. Mr. Medina-Jimenez conceded removability and applied for cancellation of removal for non-lawful permanent residents. On December 13, 2011, the Immigration Court denied his application finding that he had been convicted of violating a protection order and was therefore statutorily ineligible for cancellation of removal under INA § 237(a)(2)(E) (ii). On September 14, 2013, the BIA dismissed Mr. Medina-Jimenez’s appeal.

Not being one to give up, Mr. Medina-Jimenez filed a motion with the Oregon court requesting that the court correct the original judgment entered with regard to his violation of a protection order. On October 9, 2014, the Oregon court issued a “General Judgement of Contempt” nunc pro tunc to the date of the original order. It changed the characterization of the offense from a “conviction” to a “contempt of court judgment.” On January 27, 2015, the Ninth Circuit granted the Government’s motion to remand to the BIA to determine the effect of this new judgment on Respondent’s eligibility for cancellation of removal. On July 14, 2015, the BIA issued a second decision in this case holding that although Oregon no longer considers contempt of court a “crime,” the contempt offense itself was processed under state law as “punitive” and resulting in his conviction as defined by INA § 101(a)(48). The case went back up to the Ninth Circuit, and once again the Government requested a remand to the BIA to address whether the Supreme Court’s decisions in Mathis v. United States and Descamps v. United States to determine what analysis to use in determining a noncitizen who is removable under Section 237(a)(2)(E) (ii) (violation of a protection order) where a conviction is not required.

While this case was pending, the BIA issued Matter of Obshatko, 27 I.&N. Dec. 173 (BIA 2017) holding that the analysis of whether a violation of a protection order renders a noncitizen removable under INA § 237(a)(2)(E)(ii) is not governed by the categorical approach even if a conviction underlies the charge. Instead, the immigration judge should consider probative and reliable evidence regarding what the state court determined about the noncitizen’s violation. The BIA held that in the context of cancellation of removal, section 240A(b)(1)(C) renders a noncitizen statutorily ineligible for relief if the noncitizen is convicted of an offense under section 237(a)(2). The BIA held that the courts must make two distinct inquiries. First, an Immigration Judge must determine whether the offense at issue resulted in a “conviction” as defined by INA § 101(a)(48). Second, the Immigration Judge must decide whether the state court has found that the noncitizen “engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued. In conducting the second inquiry, the Immigration Judges should review the probative and reliable evidence regarding whether the state court’s findings that a protection order has been violated meet the requirements of Section 237(a)(2)(E)(ii).

First, we need to examine the language of 237(a)(2)(E)(ii).

Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

The BIA then engages in some true mental gymnastics.

The use of the term “convicted” in section 240A(b)(1)(C) of the Act [statutory ineligibility for non-lawful permanent resident cancellation of removal] does not mean that the categorical approach must be applied. That section refers to offenses in various provisions of the Act that require a conviction, but here we are concerned with an offense that is alleged to be “under” section 237(a)(2)(E)(ii) of the Act, for which a conviction is not essential. Although a conviction is necessary in the context of cancellation of removal, it would be incongruous to apply the elements-based categorical approach to section 237(a)(2)(E)(ii), which focuses on a court’s determination regarding an alien’s conduct. *.*.*. Instead, Immigration Judges need only decide whether the alien has been convicted within the meaning of the Act (INA § 101(a)(48)) and whether the conviction is for violating a protection order under Section 237(a)(2)(E)(ii).”

Matter of Medina-Jimenez, 27 I.&N. Dec. 399, 403 (BIA 2018).

The BIA found that the record includes reliable and uncontested evidence that Mr. Medina-Jimenez was convicted of an offense under section 237(a)(2)(E)(ii) of the Act. The judgment of the Oregon court states that Mr. Medina-Jimenez was convicted of contempt of court and that the plea was based on violating a restraining order. Accordingly, Mr. Medina-Jimenez is statutorily ineligible for cancellation of removal for non-lawful permanent residents.

Matter of Medina-Jimenez, 27 I.&N. Dec. 399 (BIA 2018).