Top of the Ninth: June 15, 2018

I apologize for the delay in getting last week’s blog out. I was both exhausted and reinvigorated by the AILA National Conference. It was wonderful to see so many of my heroes. Thanks to Rex Chen, this blog now has a name: “Top of the Ninth.” Rex asked me the name of my blog, and I stammered, “Um, Merle’s blog????” I felt quite silly. I came up with a better name and it is now officially called “Top of the Ninth: A Weekly Analysis of Board of Immigration Appeals and Ninth Circuit Immigration Decisions.” But, I will still analyze all Supreme Court immigration decisions and the important California District Court decisions.

Now back to the blog, Attorney General Sessions sucked all the air out of the room last week when he issued his decision in Matter of A-B- overturning Matter of A-R-C-G-, 26 I.&N. Dec. 338 (BIA 2014) (recognizing married women in Guatemala who are unable to leave their relationship as a particular social group). But, I have to say, that after reading the decision and after listening to all of the analyses of the decision, I think it is apt to quote Shakespeare and say that this decision is, “[T]old by an idiot, full of sound and fury, Signifying nothing.” Macbeth Act 5, Scene 5. I won’t say it signifies nothing exactly or that it’s told by an idiot (I’ll let you make your own determination on that issue), but it is full of sound and fury and might not, ultimately, be that important. The Ninth Circuit came down with two decisions that might be more important than Matter of A-B-. First, the Ninth Circuit refused to afford Chevron deference to a BIA decision where the agency’s interpretation was not based on a permissible construction of the statute. Second, the Ninth Circuit reviewed the categorical approach once again and held that a sentencing enhancement is a part of the elements of the conviction where the jury unanimously find that “sexual motivation” was an element of the crime of conviction. Now to the Attorney General’s decision.

Attorney General

The Attorney General Reiterated the Asylum Law Regarding Particular Social Group and Withdrew the BIA’s Decision in Matter of A-R-C-G-.

After having read Matter of A-B-, it seems like the Attorney General restated asylum law regarding particular social group, but said it in a VERY LOUD VOICE. One of the most interesting aspects of the case, is that it seems that he withdrew Matter of A-R-C-G- because DHS conceded the main arguments regarding social group so the BIA did not work from a record with a vigorous analysis of the legal arguments. After reading this case, I think that as long as Sessions is Attorney General we might have to insist that DHS argue its claims rather than concede on issues of law otherwise, the case risks being overturned. I know it sounds crazy, but that’s what the decision seems to say.

The Attorney General reiterated the definition of social group. He held that an applicant for asylum based on membership in a particular social group must demonstrate the following:

1. Membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question;

2. The noncitizen’s membership in the group is a central reason for his or her persecution;

3. The alleged harm is inflicted by the government of her home country or by persons that the government is unable or unwilling to control; and,

4. The where the noncitizen is a victim of private criminal activity, the analysis must consider whether government protection is available, whether internal relocation is possible, and whether persecution exists country wide.

5. If an asylum application is fatally flawed in one respect, the adjudicator does not need to examine the remaining elements of the case.

Matter of A-B-, 27 I.&N. Dec. 316, 320 (AG 2018). As I said, Sessions just seems to be reiterating the framework for particular social group but in a REALLY LOUD VOICE. Sigh. He really tries to give DHS hints on how to challenge other asylum claims. Of unclear importance, Sessions writes, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Id. It’s interesting, because Sessions makes this statement without any analysis and in a case where the issue of gang violence is not even broached! It’s dicta in its purest form. Sessions then gives a “nudge, nudge, wink, wink” (thank you Monty Python) to DHS Asylum Officers and states that few domestic violence or gang violence cases would satisfy the legal standard to determine whether a noncitizen has a credible fear of persecution. Matter of A-B-, 27 I&N. Dec. at 320 n.1. It’s important to remember than Sessions has no authority over DHS and that his footnote is merely a suggestion to Asylum Officers. But, I am very concerned about how the Asylum Officers will read this case at the border. Sessions gives another “nudge, nudge, wink, wink” to DHS hinting DHS should challenge the claim that a nuclear family can comprise a particular social group under the statute. Matter of A-B-, 27 I.&N. Dec. at 333 n.8. Be wary of footnote 8.

Sessions states that the BIA, the Immigration Judges and the asylum officers (over whom he has no authority) should engage in the following analysis when evaluating an application for asylum:

1. The noncitizen who is seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate the exact delineation of any proposed particular social group. (I have a hard-enough time figuring out a particular social group for my client, I have no idea how a noncitizen at the border is going to be able to come up with a definition without years of asylum law experience).

2. The IJ must clarify the particular social group being analyzed in his or her decision. It is critical for the appellate record that the particular social group is clear and that the record is fully developed.

3. The BIA cannot sustain an asylum applicant’s appeal based on a newly articulated social group that is not presented before or analyzed by the immigration judge.

4. The BIA, the IJs and the asylum officers (over whom Sessions has no authority) must consider whether internal relocation in the noncitizen’s home country presents a reasonable alternative before granting asylum.

5. Applicants who have not established “past persecution” bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by the government or is government sponsored.

6. An IJ “in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution” if it is “found by a preponderance of the evidence” that “the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality, …and under all circumstances it would be reasonable to expect the applicant to do so. Sessions notes that where the noncitizen has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable. And,

7. There are alternative proper and legal channels for seeking admission to the United States other than entering the country illegally and applying for asylum in removal proceedings. (In my copy of the decision I wrote, “Ha! Ha! Ha!”).

Matter of A-B-, 27 I.&N. Dec. at 344-345.

Finally, in a weird footnote, Sessions points out that asylum is discretionary. When I first heard that Sessions was insisting on a discretionary analysis I figured we would have to go through all of the discretionary factors that we review in a cancellation of removal case or in a waiver application. But, instead, Sessions states that the relevant discretionary factors include the following: 1) the circumvention of orderly refugee procedures (bless your heart, Jeff Sessions); 2) whether the noncitizen passed through any other countries or arrived in the United States directly from his or her home country (we already do that in the asylum application); 3) whether orderly refugee procedures were in fact available in any country the noncitizen passed through; 4) whether the noncitizen made any attempts to seek asylum before coming to the United States; 5) the length of time the noncitizen remained in a third country; and 6) the noncitizen’s living conditions, safety, and, potential for long-term residency in the third country. Matter of A-B-, 27 I.&N. Dec. at 345 n. 12.

I hope that this case does not have a lot of impact within the United States, because it simply reiterates current law. I am very concerned about its impact on the border with harried asylum officers might rely on this case to deny credible fear findings for victims of domestic violence and gang violence.

Ninth Circuit

Ninth Circuit Refuses to Afford Chevron Deference to a BIA Decision Where the Agency’s Interpretation is Not Based on a Permissible Construction of the Statute

Chevron deference seems like it is going to become a very hot topic in Circuit Court and Supreme Court decisions. We should be challenging it in all of our Circuit Court cases. Back in 1984, the Supreme Court held that where a statute is ambiguous, the courts should defer to the agency’s reasonable construction of the statute. Both Gorsuch, in Sessions v. Dimaya, and Kennedy in Pereira v. Sessions, have written concurring decisions challenging Chevron deference and its application. In this case, the Ninth Circuit found that Chevron deference did not apply because the Board of Immigration Appeal’s (BIA’s) decision was not based on a reasonable construction of the statute.

The facts in this case are very compelling. Mr. Gomez-Sanchez has lived in the United States as a lawful permanent resident since 1990. As a teenager he was diagnosed with a serious mental disability and with schizophrenia. In 2004 he pleaded guilty to assault with a deadly weapon (Cal. Penal Code § 245(a)(1)) for swinging a weight lifting bell at a store owner, injuring the store owner. During the criminal proceedings, the store owner testified that “after tackling the Petitioner he “noticed that [Petitioner] was not all there.”” Mr. Gomez-Sanchez was sentenced to the statutory minimum – two years in jail. ICE placed Mr. Gomez-Sanchez in removal proceedings and charged him with removability as aggravated felon under INA § 237(a)(2)(iii). Mr. Gomez-Sanchez applied for withholding of removal and protection under the Convention Against Torture. (Under the INA he was statutorily precluded from applying for asylum because he had been convicted of an aggravated felony). Mr. Gomez-Sanchez argued that he would be subject to persecution or torture in Mexico due to his chronic mental illness, and would lack access to treatment. The Immigration Judge (IJ) found that Mr. Gomez-Sanchez was statutorily barred from withholding of removal because he had been convicted of a particularly serious crime. Mr. Gomez-Sanchez appealed to the BIA and the BIA issued a published decision holding that “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 part of the criminal proceeding.” Matter of G-S-S-, 26 I.& N. Dec. 339, 339 (BIA 2014). Now if the BIA’s holding sounds like it is somewhere beyond stupid to you, you are in good company. The Ninth Circuit agrees. The Ninth Circuit denied a petition for panel rehearing and amended its April 6, 2018, opinion granting Mr. Gomez-Sanchez’s petition for review. The Ninth Circuit stated that no future petitions for rehearing or petitions for rehearing en banc will be entered and that the mandate shall issue forthwith. They are not messing around.

This case is important because the Ninth Circuit reminded us that while the Ninth Circuit must afford deference to agency decisions it must only afford deference to “the Board’s reasonable interpretations of ambiguous statutes it is charged with administering.” (Emphasis added). Here the Ninth found that the Board’s interpretation of the statute was not reasonable; and, that is how we are going to attack the BIA’s and the Attorney General’s decisions.

Now for some legal background, Mr. Gomez-Sanchez was statutorily ineligible for asylum because he had been convicted of an aggravated felony, so he applied for withholding of removal. A noncitizen is eligible for withholding of removal if s/he establishes by clear and convincing evidence that his life or freedom would be threatened in the country to which he would be removed on account of her race, religion, nationality, membership in a particular social group or political opinion. INA § 241(b)(3). If the noncitizen establishes eligibility, the court must grant withholding. It is mandatory. But, if a noncitizen has been convicted of a “particularly serious crime” s/he is statutorily ineligible for relief. In 2013, the Ninth Circuit defined a particularly serious crime as follows: “[A] crime is particularly serious if the nature of the conviction, the underlying facts and circumstances [,] and the sentence impose justify the presumption that the convicted immigrant is a danger to the community.” Delgado v. Holder, 648 F.3d 1095, 1107 (9^th Cir. 2011). The BIA in Matter of G-S-S-, announced and applied a blanket rule against considering an individual’s mental health as a factor when deciding whether the crime of conviction is particularly serious.

The Ninth Circuit held the BIA’s decision was incorrect and was not entitled to Chevron deference. In other words, it was whacked. First, the Ninth Circuit noted that the decision is contrary to Congress’s expressed intent that the analysis of whether a crime is particularly serious must be conducted on a case-by-case basis. Blandino-Medina v. Holder, 712 F.3d 1338, 1345 (9^th Cir. 2013). Second, the Ninth Circuit held that the BIA’s interpretation was not based on a permissible construction of the statute. In other words, it was arbitrary or capricious in substance. The Ninth Circuit shot down the BIA’s rationales for this broad ruling. The BIA’s first rationale was that it could not go behind the criminal court’s findings. The Ninth Circuit said, that the consideration of mental health-related evidence does not require the immigration judge to assess criminal culpability or the validity of the conviction. Rather, the immigration courts could consider this evidence as a separate determination of dangerousness. After all, it is a particularly serious crime. The Ninth Circuit noted that the criminal courts focus on whether the defendant may be convicted for whatever crime is charged, while the immigration courts assess whether the crime is serious or particularly serious. Second, the BIA’s assumption that consideration of mental health would implicate a reassessment of the criminal court’s finding is flawed, because the mental health evidence that the noncitizen wishes to offer to the immigration court may never have been presented in criminal court.

Finally, the Ninth Circuit noted that the BIA’s decision was inconsistent with prior precedent. The BIA had held that in making a particularly serious crime determination, the immigration courts are not bound by the record of conviction and may consider all reliable evidence. Matter of N-A-M-, 24 I.&N. Dec. 336, 342 (BIA 2007). The Ninth Circuit found that the BIA’s conclusion that mental health evidence is always irrelevant is unreasonable because it is inconsistent with its own precedent recognizing the relevance of motivation and intent to the particularly serious crime determination.

The Ninth Circuit’s conclusion is worth reading in its entirety:

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.

Because the Board’s rule in this case conflicts with these principles, we find that the Agency’s interpretation is unreasonable and not entitled to deference under Chevron. For the foregoing reasons, we vacate and remand to the BIA for further proceedings consistent with this decision.

Gomez-Sanchez v. Sessions, No. 14-72506 (9th Cir. June 12, 2018)

A Sexual Motivation Enhancement Must be Regarded as an Element of the Statute of Conviction

If you are feeling a little queasy after reading that header, I don’t blame you. Sexual abuse of a minor cases are always hard to read. But, the law here might be important. Mr. Quintero-Cisneros has been a lawful permanent resident of the United States since he was an infant. In 2009, when he was 21 years old, he pleaded guilty to assault of a child in the third degree with sexual motivation in the State of Washington. The final component of his offense was that he committed the crime with “sexual motivation.” Under Washington law, the prosecutor must charge the defendant with this allegation in the information and it must be admitted by the defendant (in a plea) or proved to a jury beyond a reasonable doubt. Back in 2007 the BIA held that the sexual motivation allegation must be treated as an element of the offense because the allegation had to be proved beyond a reasonable doubt and because the allegation had the effect of increasing the maximum sentence that Mr. Quintero-Cisneros could receive. This case weirdly uses a Sixth Amendment analysis as well as a Fifth Amendment Due Process analysis to come to its decision. The reason I am saying that the Sixth Amendment analysis is weird is because it is long-standing precedent that the Sixth Amendment does not apply in removal proceedings – because they are civil proceedings. C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018). But, even with that weird side analysis, the outcome of the case seems correct.

The Ninth Circuit first looked at the federal generic definition of sexual abuse of a minor. The definition requires proof of three elements: 1) sexual conduct; 2) with a minor; and 3) that constitutes abuse. United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009). The Ninth Circuit noted that Mr. Quintero-Cisneros’s conviction was not simply assault of a child in the third degree, but rather he was also charged with “sexual motivation.” That allegation is considered an element of the crime. The Ninth Circuit distinguished it from an aggravating circumstance because it had to be charged in the information and had to be either admitted by the defendant or found by a jury beyond a reasonable doubt. So where you have a crim/imm case where the sentencing enhancement has to be admitted or found by the jury beyond a reasonable doubt, that sentencing enhancement is an element of the statute of conviction.

Quintero-Cisneros v. Sessions, No. 13-72632 (9th Cir. June 11, 2018)