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While it has been a rough week for immigration policy; it has been a good week for immigrants in the courts and before the Board of Immigration Appeals. If you are not already donating to the ACLU, it might be a good time to start. They are really helping our clients. Back to the law. First, the Ninth Circuit overturned Matter of G-S-S-, 26 I.&N. Dec. 339 (BIA 2014). The BIA in Matter of G-S-S- held that in determining whether an offense was a “particularly serious crime” that statutorily precluded withholding of removal, the adjudicator could not consider the mental health of the defendant/noncitizen. The Ninth Circuit said, “nonsense.” Second, the BIA found that if a criminal conviction has been vacated by a state court due to procedural and substantive defects, it was not a conviction for immigration purposes. The BIA decided it would no longer recognize a Fifth Circuit decision to the contrary in immigration proceedings. Finally, the district court for the District of Arizona, found that an individual detained under INA § 241(a) (detention for aliens previously ordered removed) who was found to have a credible fear of persecution, was entitled to have a bond hearing after 180 days in detention. The case provides further guidance on the Supreme Court’s decision in Jennings v. Rodriguez. While this decision is not binding in California, it is a good case to look at for its reasoning.
Ninth Circuit
In Determining Whether a Crime is a “Particularly Serious Crime” for the Denial of Withholding the Adjudicator Must Consider the Noncitizen’s Mental Health at the Time of the Commission of the Crime
Mr. Gomez-Sanchez had been living in the United States as a lawful permanent resident since 1990. As a teenager he was diagnosed with schizophrenia. In 2004 he pleaded guilty to assault with a deadly weapon. Mr. Gomez-Sanchez had swung a weightlifting bell at the head of the storeowner. “During the criminal proceedings, the storeowner testified that after tackling Petitioner he “noticed that [Petitioner] was not all there.” Gomez-Sanchez v. Sessions, No. 14-72506 slip op. at 5 (9th Cir. April 6, 2018). Mr. Gomez-Sanchez was sentenced to two years’ incarceration – the statutory minimum. Mr. Gomez-Sanchez applied for withholding of removal and protection under the Convention Against Torture. The IJ found that he had been convicted of a particularly serious crime and did not qualify for relief. In 2014, the BIA issued a published decision holding “a person’s mental health is not a factor to be considered in a particularly serious crime analysis and that adjudicators are constrained by how mental health issues were addressed as a part of the criminal proceedings.” Matter of G-S-S-, 26 I.&N. Dec. 339 (BIA 2014). Fortunately, the ACLU got a hold of this case and this unconscionable decision has been reversed.
First a primer on Chevron deference. (It’s crucial to understanding this week’s cases). Chevron comes from a 1984 Supreme Court case that sets up a framework for the courts to adjudicate agency decisions. Under Chevron, the Supreme Court held that the courts must defer to the agency’s reasonable interpretations of the ambiguous statues the agencies are charged with administering. It’s a two-part test: 1) Is the intent of Congress clear? If it is, then the court must follow the expressed intent of Congress. If the statute is silent or ambiguous then the court goes to step two. 2) Is the agency’s decision based on a permissible construction of the statute? If it is, then the court may not substitute its judgment for that of the agency. Chevron U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837 (1984). I am not sure how much longer Chevron is going to be around, because Gorsuch is opposed to it. But, for now it is the law.
The Ninth Circuit found that the BIA’s decision was not entitled to Chevron deference because “Matter of G-S-S-,.*.*.* is contrary to Congress’s clearly expressed intent that the analysis of whether a crime is particularly serious “requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress.” Gomez-Sanchez, slip op. at 13. The Ninth found that even if the BIA’s decision survived the first step, of Chevron it failed at the second step because the agency’s interpretation was not based on a permissible construction of the statute. The Court concluded with a very strong statement:
It is irrebuttably presumed that once a crime is determined to be particularly serious, the individual who committed that crime presents a danger to the community such that he or she is not entitled to protection by this country from persecution in another country. Given this narrow focus and in light of this severe consequence, the Agency must take all reliable, relevant information into consideration when making its determination, including the defendant’s mental condition at the time of the crime, whether it was considered during the criminal proceedings or not. This ensures that the Agency will in fact examine the circumstances of each conviction individually, taking into account all of the circumstances, as required under the case-by-case approach.
Gomez-Sanchez v. Sessions, No. 14-72506 slip op. at 23-24 (9th Cir. Apr. 6, 2018).
Board of Immigration Appeals
A Conviction that is Vacated Due to a Substantive or Procedural Defect is Not a Conviction for Immigration Purposes
When is a conviction not a conviction for immigration purposes under INA § 101(a)(48)? When it has been vacated due to a substantive or procedural defect (think – for a Constitutional reason). So, cases in California that are vacated due to ineffective assistance of counsel, or because the defendant did not understand the potential consequences of his conviction and was denied his due process rights under the Fifth and Fourteenth Amendments to the Constitution, are not convictions under INA § 101(a)(48). However, convictions that expunged or cleared, for rehabilitative or immigration purposes are still convictions. In other words, record clearances under Cal. Penal Code § 1203.4 are still convictions while vacaturs are not (Penal Code §§ 1016.5 or 1473.7, etc.). The BIA held that this rule is to be applied in immigration courts throughout the country.
The Fifth Circuit had held that even if a case was vacated for constitutional reasons, it was still a conviction for immigration purposes. Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002). The BIA held that it would no longer be following Renteria-Gonzelez even in the Fifth Circuit. The BIA found that under Chevron it could interpret the definition of the term “conviction” for immigration purposes. (See, it’s a week of Chevron deference). This case does not change anything within the Ninth Circuit, but it should have a profound impact in the Fifth Circuit.
Matter of Marquez Conde, 27 I.&N. Dec. 251 (BIA 2018).
District Court for Arizona
An Individual with a Reinstated Deportation Order who has a Credible Fear of Persecution Must be Given a Bond Hearing after 180 Days Incarceration
While generally I do not blog about District Court cases, this one is important as it helps explain the Supreme Court’s decision in Jennings v. Rodriguez (no mandatory hearing after 180 days in custody). In this case, Mr. Higareda-Frutos had been deported to Mexico in 2010. In 2016 he returned to the United States, DHS sought to reinstate his prior removal order. The removal order was suspended after Mr. Higareda-Frutos was found to have a reasonable fear of persecution. He has been in detention and has been denied a bond hearing since 2016. The Court found that under Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir. 2011) an individual detained under INA § 241(a) (detention after a final order of removal) must receive a bond hearing after 180 days of detention. The Court also gently reminded us in a footnote, that the Supreme Court in Jennings had remanded the case to the Ninth Circuit to determine whether the mandatory detention provisions under INA § 235 (expedited removal for arriving aliens) and under INA § 236 (apprehension and detention of aliens) are Constitutional. With the current government apprehending everyone at the border and subjecting them to mandatory detention, this case can become very important.
Higareda-Frutos v. Sessions, No. CV-18-00491-PHX-SPL (DKD) (D. Ariz. Apr. 5, 2018).