Immigration suppression motion results, how individual IJs and BIA panels have analyzed the issues

The following are IJ and BIA decisions on motions to suppress and motions to terminate. In each of these cases, the respondents in removal proceedings asked the IJ to suppress or exclude the government’s evidence or otherwise terminate proceedings. These decisions are not meant to be representative of the way in which the agency is deciding these motions, but they do illustrate how individual IJs and BIA panels have analyzed the issues.

IMMIGRATION COURT CASES

• Granted
• Denied

BOARD OF IMMIGRATION APPEALS CASES

LAC collects suppression motion results

Chicago Immigration Court, Deportation and Removal

• Immigration updates-New Legislation
• Supreme Court cases
• Deportation Handbook, 7th Circuit
• 7th Circuit updates: Opinion Summaries for U.S. 7th Circuit Court of Appeals, Aliens, Immigration
• BIA case law summaries
• EOIR Chart: Court Decisions Relating to Board Precedents
• BIA Precedent Table (Revised 3-26-08) BIA cases published from March 30, 1995 to the present.
• Immigration Court Practice Manual: Beginning on July 1, 2008, the Practice Manual will go into effect nationwide, and local operating procedures for immigration courts will no longer be used. The requirements set forth in this manual are binding on the parties who appear before the Immigration Courts, unless the Immigration Judge directs otherwise in a particular case.
• Immigration Judge Benchbook (October 2001 | 542 pages 7.8 MB pdf)
• Relief Pre-IIRIRA/AEDEPA
• Relief from Deportation
• Crimes and Immigration Waivers
• Immigration Consequences of Criminal Activity (CRS Report-updated 10-23-2006)
• Immigration Consequences of Convictions Summary Checklist
• Removal Defense Checklist in Criminal Cases
• Aggravated Felony practice aid
• Immigration consequences of certain Illinois Offenses
• Immigration Defense for Defense Counsel, by Lory Diana Rosenberg. January 2003-August 2004.
• Immigration Handbook (59 pages | 34 MB pdf)
• Submitting I-589, I-485, EOIR-40, EOIR-42A, EOIR-42B with Immigration Court;
• Post-Order Instructions for Individuals granted relief from removal by the Immigration Court.
• Chicago Deportation Phone Numbers & Officer Dockets (10/18/2006-subject to change).

Deportation for Drug Crimes

The Supreme Court ruled, by an 8-1 vote, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers potential deporation. Justice David H. Souter wrote the opinion for the Court in Lopez v. Gonzales (05-547). Justice Clarence Thomas dissented.

The ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under federal law is not a drug trafficking crime under the Controlled Substances Act. Two others had disagreed. Federal immigration law provides for deportation for anyone convicted of a crime that is a "felony punishable under the Controlled Substances Act." The Court ruled that "a state offense comes within [that phrase] only if it proscribes conduct punishable as a felony under" the Controlled Substances Act.

The decision came in the case of Jose Antonio Lopez, a native of Mexico. He entereed the U.S. illegally in 1985 or 1986, but became a lawful permanent resident in 1990. In 1997, he was charged in state court in South Dakota with one count of possessing cocaine and one count of a conspiracy to distribute the drug. He ultimately pleaded guilty to aiding and abetting possession by another person.

Under state law, his crime was a felony, leading to a potential prison sentence of up to five years. He was sentenced to the maximum, but actually served only 15 months. Federal officials moved to deport him to Mexico, based upon the conviction for what they considered to be an "aggravated felony." Under federal law, however, the crime could only be punished as a misdemeanor.

A conviction for an aggravated felony under immigration law can lead to deportation, or may bar other relief, such as cancellation of a deportation order.

Justice Souter's opinion said that under federal law, mere possession is not a form of "illicit trafficking" in drugs, because that "connotes some sort of commercial dealing."

The Court had granted review of two cases on the issue, and consolidated them. In a one-sentence order, the Court on Monday dismissed the second case, Toledo-Flores v. U.S. (05-7664).

Majority opinion

Dissent

On December 13, 2007, the Board of Immigration Appeals (BIA) issued two precedent decisions that together mean that, in cases arising outside the Second, Fifth and Seventh Circuits, a non-citizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. See Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007) (hereinafter Carachuri) and Matter of Thomas, 24 I&N Dec. 416 (BIA 2007) (hereinafter Thomas). The BIA left open the question of when a noncitizen who was convicted by the state as a recidivist could be deemed convicted of an aggravated felony.

In cases arising in the Fifth Circuit, as well as the Second and Seventh Circuits, the BIA indicated that it was constrained by circuit precedent to find that a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. See Carachuri, 24 I&N Dec. at 385-88, 392-93. The precedents from these circuits cited by the BIA do not preclude a finding that a second or subsequent state possession offense is not an aggravated felony.

Matter of CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007) (ID 3592)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

Matter of THOMAS, 24 I&N Dec. 416 (BIA 2007) (ID 3593)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.

Matter of Yanez, 23 I&N 390 (BIA 2002), ID#3473

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.


Lopez v. Gonzales, 127 S. Ct. 625, 166 L. Ed. 2d 462 (2006), holds that classification of an offense for the purpose of § 1101(a)(43) depends on how the accused's conduct would be treated under federal law. If the conduct of which the defendant has been convicted would be a felony under federal law, then it comes within § 1101(a)(43) if it meets that statute's requirements concerning the subject-matter of the crimes and the length of the sentence. In deciding whether given conduct would be a drug felony under federal law, it is not possible to limit attention to the elements of the offense under state law; the point of Lopez is that, when state and federal crimes are differently defined, the federal court must determine whether the conduct is a federal felony, not which statute the state cited in the indictment.
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Gonzales-Gomez v. Achim (March 22, 2006), 390 U.S. Supreme Court Transcript, Lopez v. Gonzalez

The 7th Circuit rejected Yanez(March 22, 2006), 390

Issue: whether a state-law felony that would be punishable only as a misdemeanor by federal law is nevertheless an “aggravated felony” ?

Posner: "The “yes” answer, here urged by the government, is a strained reading of the statutory language, is inconsistent with the government’s general position regarding the definition of “aggravated felony,” is inconsistent with the interest in uniform standards for removal, and is inconsistent with the legislative history. The only consistency that we can see in the government’s treatment of the meaning of “aggravated felony” is that the alien always loses.

Allowing cancellation of removal to depend on how severely a particular state punishes drug crimes would have the paradoxical result of allowing states, in effect, to impose banishment from the United States as a sanction for a violation of state law. For then if a state made the possession of one marijuana cigarette a felony, which it is perfectly entitled to do, it would be in effect annexing banishment from the United States to the criminal sanction. States do not have the power to banish people from the United States."

Posner applied the April 2005 district court ruling, 372 F. Supp. 2d 1062; 2005, that the Hypothetical Federal Felony approach applied; a state drug conviction was an aggravated felony only if the elements of the crime would constitute a felony under federal drug laws. "Aggravated felony," as defined under 8 U.S.C.S. ß 1101(a)(43)(B) of the INA, included a "drug trafficking crime" as defined in 18 U.S.C.S. ß 924(c), which in turn was defined as any felony punishable under the Controlled Substances Act (CSA), 21 U.S.C.S. ß 801 et seq. The CSA generally punished first-time simple possession as a misdemeanor. The legislative history of 18 U.S.C.S. ß 924(c) and the INA did not indicate that Congress intended for minor drug possession convictions to be aggravated felonies. Also, the uniformity requirement under U.S. Const. art. I, ß 8, cl. 4 weighed against reliance on varying state laws.

Chicago Immigration Judge Reports — Asylum grants and denials, fiscal year 2000 through the early months of 2005

Chicago Immigration Judge Reports — Asylum Grants and Denials

The data and analyses is from The Transactional Records Access Clearinghouse (TRAC), a data gathering, data research and data distribution organization associated with Syracuse University. Comprehensive, independent and nonpartisan information about U.S. federal immigration enforcement.
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"Judge O. John Brahos was appointed as an Immigration Judge in October 1982. He received an undergraduate degree in 1956 from De Paul University, College of Commerce, and a Juris Doctorate from De Paul University, College of Law, in 1959. Prior to joining the Executive Office for Immigration Review, he served as general attorney, trial attorney, supervisory general attorney, and attorney examiner from 1971 to 1982 for the former Immigration and Naturalization Service in Chicago. Judge Brahos also served as an alternate member on the Board of Immigration Appeals in 1991, 1993, and 1994. He is a member of the Illinois Bar.

Judge Brahos decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Brahos is recorded as deciding 649 asylum claims on their merits. Of these, he granted 172, gave 2 conditional grants, and denied 475. Converted to percentage terms, Brahos denied 73.2 percent and granted (including conditional grants) 26.8 percent.

For Judge Brahos , the largest group of asylum seekers appearing before him came from Guatemala . Individuals from this nation made up 9.6 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Brahos were: China (8.8 %), Yugoslavia (7%), El Salvador (5.8%), Bulgaria (4.9%).

In the nation as a whole during this same period, major nationalities of asylum seekers, in descending order of frequency, were China (22.3%), Haiti (9.3%), Colombia (9.1%), Albania (4.0%), India (3.9%), Guatemala (3.4%), Indonesia (3.0%), El Salvador (2.4%), Armenia (2.1%), Mexico (1.9%), and Russia (1.9%)."
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"Judge Samuel Der-Yeghiayan was appointed Immigration Judge in December 2000. He received his B.A. from Evangel College in 1975 and his J.D. from Franklin Pierce Law Center in 1978. Judge Der-Yeghiayan was selected in 1978 as a trial attorney for the Immigration and Naturalization Service (INS) in Chicago under the Attorney General's Honor Program. In 1981, he was promoted to the position of district counsel for the Chicago District of the INS where he served until his appointment as an Immigration Judge in December 2000. He received the INS "District Counsel of the Year" award in 1998 and the Frank J. McGarr award for "Outstanding Government Attorney of the Year" in 1986 from the Chicago Chapter of the Federal Bar Association. He is a member of the Illinois Bar and the U.S. Supreme Court.

In 2000, Der-Yeghiayan was appointed, under the Clinton administration, an immigration judge in the Department of Justice Executive Office for Immigration Review. On April 6, 2001, Der-Yeghiayan was sworn in as an Immigration Judge. President George W. Bush nominated him on March 5, 2003 for the district court seat vacated by Marvin E. Aspen, and the Senate unanimously confirmed him on July 14, 2003.

Detailed data on Judge Der-Yeghiayan decisions are available for the period covering fiscal year 2000 through the early months of 2003. During this period, Judge Der-Yeghiayan is recorded as deciding 258 asylum claims on their merits. Of these, he granted 80, gave 1 conditional grants, and denied 177. Converted to percentage terms, Der-Yeghiayan denied 68.6 percent and granted (including conditional grants) 31.4 percent." ____________________________________________________________

"Judge Jennie L.Giambastiani was appointed as an Immigration Judge in May 2002. She received a Bachelor of Arts degree in 1983 from Loyola University of Chicago, and a Juris Doctorate from Loyola University School of Law in 1986. Prior to becoming an Immigration Judge, from April 1987 until May 2002, Judge Giambastiani served as district counsel, deputy district counsel, assistant district counsel, and supervisory legalization officer for the former Immigration and Naturalization Service in Chicago. Judge Giambastiani is a member of the Illinois Bar.

Detailed data on Judge Giambastiani decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Giambastiani is recorded as deciding 274 asylum claims on their merits. Of these, she granted 101, gave 12 conditional grants, and denied 161. Converted to percentage terms, Giambastiani denied 58.8 percent and granted (including conditional grants) 41.2 percent.

For Judge Giambastiani , the largest group of asylum seekers appearing before her came from China . Individuals from this nation made up 16 % of her caseload. Other nationalities in descending order of frequency appearing before Judge Giambastiani were: Guatemala (10.2 %), Albania (8.7%), Iraq (4%), Ukraine (4%)."
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"Judge James R. Fujimoto was appointed as an Immigration Judge in June 1990. He received an undergraduate degree in 1976 from the University of Chicago, and a Juris Doctorate from DePaul University in 1979. Judge Fujimoto was a partner in the law firm of Alexander, Fennerty & Fujimoto in Chicago from 1981 to 1990. From 1978 to 1981, he served as a law clerk and then associate attorney for Masuda, Funai, Eifert & Mitchell, also in Chicago. Judge Fujimoto is a member of the Illinois Bar.

Detailed data on Judge Fujimoto decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Fujimoto is recorded as deciding 736 asylum claims on their merits. Of these, he granted 222, gave 9 conditional grants, and denied 505. Converted to percentage terms, Fujimoto denied 68.6 percent and granted (including conditional grants) 31.4 percent."
_______________________________________________________

"Judge Carlos Cuevas was appointed as an Immigration Judge in February 1994. He received a Bachelor of Arts degree from DePaul University in 1979, and a Juris Doctorate from DePaul University, College of Law, in 1982. From 1989 to 1994, Judge Cuevas served as an administrative law judge with the Illinois Human Rights Commission in Chicago. From 1986 to 1989, he was in private practice in Chicago. Judge Cuevas served as an attorney with the Legal Assistance Foundation of Chicago from 1982 to 1986. He is a member of the Illinois Bar. Detailed data on

Judge Cuevas decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Cuevas is recorded as deciding 703 asylum claims on their merits. Of these, he granted 314, gave 20 conditional grants, and denied 369. Converted to percentage terms, Cuevas denied 52.5 percent and granted (including conditional grants) 47.5 percent.

For Judge Cuevas , the largest group of asylum seekers appearing before him came from Guatemala . Individuals from this nation made up 12.2 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Cuevas were: China (7 %), Yugoslavia (5.6%), Albania (5.5%), El Salvador (4.6%)." __________________________________________________________

"Judge Craig M. Zerbe was appointed as an Immigration Judge in August 1985. He received a Bachelor of Arts degree. from La Salle College in 1970, and a Juris Doctorate from Temple University Law School in 1975. From 1980 to 1985, Judge Zerbe served as general attorney in the Litigation Division at the former Immigration and Naturalization Service in Chicago. From 1970 to 1972, he served in the U.S. Army. Judge Zerbe is a member of the Pennsylvania Bar.

Detailed data on Judge Zerbe decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Zerbe is recorded as deciding 773 asylum claims on their merits. Of these, he granted 318, gave 9 conditional grants, and denied 446. Converted to percentage terms, Zerbe denied 57.7 percent and granted (including conditional grants) 42.3 percent.

For Judge Zerbe , the largest group of asylum seekers appearing before him came from China . Individuals from this nation made up 9 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Zerbe were: Guatemala (8.8 %), Albania (7.5%), Bulgaria (4.9%), Pakistan (4.8%)." ___________________________________________________________

"Judge Robert D. Vinikoor was appointed as an Immigration Judge in January 1984. He received a Bachelor of Science degree from the University of Delaware in 1971, and a Juris Doctorate from the University of Baltimore in 1976. From 1982 to 1984, he was a special assistant U.S. attorney at the U.S. Attorney's Office in Chicago. He also served as trial attorney in Chicago, and general attorney in Miami, Florida, with the former Immigration and Naturalization Service from 1976 to 1982. Judge Vinikoor also serves as an adjunct professor at Loyola University School of Law. Judge Vinikoor is a member of the Maryland, New Jersey, Florida, and Illinois Bars.

Detailed data on Judge Vinikoor decisions are available for the period covering fiscal year 2000 through the early months of 2005. During this period, Judge Vinikoor is recorded as deciding 1015 asylum claims on their merits. Of these, he granted 239, gave 19 conditional grants, and denied 757. Converted to percentage terms, Vinikoor denied 74.6 percent and granted (including conditional grants) 25.4 percent.

For Judge Vinikoor, the largest group of asylum seekers appearing before him came from China . Individuals from this nation made up 11 % of his caseload. Other nationalities in descending order of frequency appearing before Judge Vinikoor were: Guatemala (9.7 %), Albania (5%), Somalia (4.1%), El Salvador (3.6%)."

U.S. Supreme Court- Aliens, Immigration and Nationality Law

U.S. SUPREME COURT CASES (click on link)

DUI IS NOT A CRIME OF VIOLENCE:
Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

A drunk driving accident is not a "crime of violence" allowing the government to deport a permanent resident, the Supreme Court ruled in Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

The court ruled unanimously in favor of Josue Leocal, a Florida man challenging his deportation to Haiti in 2002 after pleading guilty to a felony charge of drunk driving.

The 11th U.S. Circuit Court of Appeals ruled that the DUI offense was a "crime of violence" under the immigration statute because he had caused injury to others.

The Supreme Court disagreed. It said the plain meaning of the statute suggests that the felony offense must require intent in causing harm - not mere negligence as in Leocal's case - before immigrants are subject to the drastic consequence of deportation.

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REHNQUIST, C. J., delivered the opinion for a unanimous Court.

Petitioner, a lawful permanent resident of the United States, pleaded guilty to two counts of driving under the influence of alcohol (DUI) and causing serious bodily injury in an accident, in violation of Florida law. While he was serving his prison sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings pursuant to § 237(a) of the Immigration and Nationality Act (INA), which permits deportation of an alien convicted of "an aggravated felony." INA § 101(a)(43)(F) defines "aggravated felony" to include, inter alia, "a crime of violence [as defined in 18 U.S.C. § 16] for which the term of imprisonment [is] at least one year." Title 18 U.S.C. § 16(a), in turn, defines "crime of violence" as "an offense that has as an element the use . . . of physical force against the person or property of another," and § 16(b) defines it as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." An Immigration Judge and the Board of Immigration Appeals (BIA) ordered petitioner's deportation, and the Eleventh Circuit dismissed his petition for review, relying on its precedent that a conviction under Florida's DUI statute is a crime of violence under 18 U.S.C. § 16.

Held: State DUI offenses such as Florida's, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, are not crimes of violence under 18 U.S.C. § 16. Pp. 4-11.

(a) Section 16 requires this Court to look to the elements and nature of the offense of conviction in determining whether petitioner's conviction falls within its ambit. Florida's DUI statute, like similar statutes in many States, requires proof of causation but not of any mental state; and some other States appear to require only proof that a person acted negligently in operating the vehicle. This Court's analysis begins with § 16's language. See Bailey v. United States, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 116 S. Ct. 501. Particularly when interpreting a statute featuring as elastic a word as "use," the Court construes language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U.S. 223, 229, 124 L. Ed. 2d 138, 113 S. Ct. 2050. Section 16(a)'s critical aspect is that a crime of violence involves the "use . . . of physical force against" another's person or property. That requires active employment. See Bailey, supra, 516 U.S. 137, at 145, 1333 L. Ed. 472, 116 S. Ct. 501. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another by accident. When interpreting a statute, words must be given their "ordinary or natural" meaning, Smith, supra, 508 U.S. 223 at 228, 124 L. Ed. 2d 138, 113 S. Ct. 2050, and § 16(a)'s key phrase most naturally suggests a higher degree of intent than negligent or merely accidental conduct. Petitioner's DUI offense therefore is not a crime of violence under § 16(a). Pp. 4-8.

(b) Nor is it a crime of violence under § 16(b), which sweeps more broadly than § 16(a), but does not thereby encompass all negligent conduct, such as negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The classic example is burglary, which, by nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Thus, § 16(b) contains the same formulation found to be determinative in § 16(a): the use of physical force against another's person or property. Accordingly, § 16(b)'s language must be given an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense. Pp. 8-9.

(c) The ordinary meaning of the term "crime of violence," which is what this Court is ultimately determining, combined with § 16's emphasis on the use of physical force against another (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. This construction is reinforced by INA § 101(h), which includes as alternative definitions of "serious criminal offense" a "crime of violence, as defined in [§ 16]," § 101(h)(2), and a DUI-causing-injury offense, § 101(h)(3). Interpreting § 16 to include DUI offenses would leave § 101(h)(3) practically void of significance, in contravention of the rule that effect should be given to every word of a statute whenever possible, see Duncan v. Walker, 533 U.S. 167, 174, 150 L. Ed. 2d 251, 121 S. Ct. 2120. Pp. 9-11.

(d) This case does not present the question whether an offense requiring proof of the reckless use of force against another's person or property qualifies as a crime of violence under § 16. P. 11.

Reversed and remanded
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Demore v. Kim: Mandatory Detention Allowed | Custody & No Bond/Bail: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1) (April 29, 2003)

The US Supreme Court declared that lawful permanent residents with certain criminal convictions can be detained pursuant to INA §236(c) without an individual bond hearing. The Court, however, also held that § 236(e) does not preclude habeas review of challenges to detention under § 236(c) .

The Supreme Court decision in Demore v. Kim applied only to individuals who conceded deportability and explicitly did not address the adequacy of the Matter of Joseph hearing, which allows a person to be released if she or he can demonstrate that the government is "substantially unlikely to prevail" on the charges of removal. To the extent possible, non-citizens should not concede deportability and request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999) http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf

The Immigration Judge may make a determination on whether a lawful permanent resident “is not properly included” in a mandatory detention category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before or after the conclusion of the underlying removal case. If this threshold bond decision is made after the Immigration Judge’s resolution of the removal case, the Immigration Judge may rely on that underlying merits determination.

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INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers under former Section 212(c)

Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition. (2) Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Certiorari to the United States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

HTML: http://supct.law.cornell.edu/supct/html/00-767.ZS.html

PDF: http://callyourlawyers.com/pdfcaselaw/St.Cyr_supct.pdf

Conviction under Immigration law includes Illinois sentence for "1410 probation" (Gill v. Ashcroft, (7th Cir.) )

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal order under 8 USC §1227(a)(2)(B)(i) based on existence of alien's prior Illinois state court conviction for possession of cocaine that was ultimately dismissed87 upon alien's successful completion of probation period; under 8 USC §1101(a)(48)(A), alien's state court proceeding qualified as "conviction" that precluded alien from applying for discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f) provides that, if a first offender completes this probation without incident, “the court shall discharge the person and dismiss the proceedings against him.” The statute continues: A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that “410 probation” was a “conviction” under the text of §1101(a)(48)(A). The 7th Circuit declined to follow the holding of Lujan- Armendariz, "which elevated an abandoned administrative practice over a statutory text." 222 F.3d 728 (9th Cir. 2000).

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Two principal problems: How to classify diversionary dispositions such as “410 probation” that impose some restraint on liberty but withhold formal adjudication of guilt; second, how to classify convictions later expunged or covered by some other device for restoring the person’s civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board held that the criteria of §1101(a)(48)(A) apply to all offenders, no matter how they would have been treated if they had been charged in federal court. The 7th Circuit adopted the Board’s "straightforward" application of §1101(a)(48)(A), which abolished, for purposes of immigration law, any distinction between the treatment of deferred dispositions in first and successive drug-possession offenses. The Board has declined to acquiesce in Lujan-Armendariz and will not apply it outside the ninth circuit.

In Gill, the Seventh Circuit determined that the definition of conviction under federal immigration law, not the Illinois First Offender standard, controls. The 7th Circuit determined that an administrative appellate tribunal, namely, the Board of Immigration Appeals, had the authority to conclude that its uniform interpretation of what constitutes a "conviction" under federal law was dispositive, regardless of what states may say to the contrary (Matter of Roldan , 22 I&N Dec. 512 (BIA, 1999).

http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf

Another court has looked at this differently (Lujan-Armendariz v. Immigration & Naturalization Service, 222 F.3d 728 (9th Cir. 2000). In the latter decision, the Circuit Court of Appeals found that state equivalents to the Federal First Offender Act (like 410 probation) in regard to first time simple drug possession charges if expunged, may not be used as convictions under the Immigration and Nationality Act to establish inadmissibility or deportability. The Ninth Circuit also extended this rule to foreign equivalents to the First Offender Act (Dillingham v. Immigration & Naturalization Service, 267 F.3d 996 (9th Cir. 2001). Unfortunately, the Ninth Circuit's decision does not apply in Illinois, Indiana or Wisconsin. And, there is more. Under certain circumstances, a misdemeanor conviction under state law may amount to what is known as an "aggravated felony" (8 U.S.C. 1227(a)(2)(A)(iii) under federal immigration law (Guerrero-Perez v. INS, (7th Cir. 2001) 242 F.3d 727, rehearing den.(7th Cir. 2001) 256 F.3d 546). What this means is that certain misdemeanor convictions, like the First Offender conviction, can result in the removal from the United States of a lawful permanent resident or undocumented alien. (For example, Criminal Sexual Abuse, 720 ILCS 5/12-15(c) is a Class A misdemeanor. It is also an aggravated felony under federal immigration law. Since aliens who have committed aggravated felonies are unable as a matter of law to obtain cancellation of their removal hearings upon a conviction for such a crime, they may be deported). (Guerrero-Perez).

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003:
Download: http://callyourlawyers.com/pdfcaselaw/gil.pdf

Misdemeanor Domestic Battery not a Crime of Violence, Flores v. Ashcroft, Seventh Circuit, November 2003

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051

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PROCEDURAL POSTURE: Petitioner sought review of an order of the Board of Immigration Appeals (BIA) which ordered petitioner removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C.S. § 1227(a)(2)(E), because he committed a "crime of domestic violence" under 18 U.S.C.S. § 16 and had a spouse or other domestic partner as a victim.

Petitioner pleaded guilty in Indiana to battery, a misdemeanor, defined as any touching in a rude, insolent, or angry manner. Ind. Code § 35--42--2--1. The BIA determined that this offense qualified as a "crime of domestic violence" under 18 U.S.C.S. § 16 and ordered petitioner removed under § 237(a)(2)(E). Upon review, the court of appeals found that the issue was how the offense created by Ind. Code § 35--42--2--1 should be classified for purposes of § 237(a)(2)(E). Although the police report shows that petitioner attacked and beat his wife, the court of appeals reasoned that § 16 provided that the statute's elements rather than the petitioner's real activities were dispositive in misdemeanor cases such that petitioner's conviction could not properly be classified as a crime of violence. Specifically, the court of appeals found that the elements of petitioner's battery conviction could not properly be viewed as a "crime of violence" under § 16 involving a spouse or other domestic partner as a victim, and thus concluded that petitioner was not removable under § 237(a)(2)(E).

The order of removal was vacated, and the matter is remanded to the BIA for further proceedings. 1(a)(1)(A).

________________

JOSE ERNESTO FLORES, Petitioner, v. JOHN ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3160

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2003 U.S. App. LEXIS 24051

September 18, 2003, Argued November 26, 2003, Decided

PRIOR HISTORY: [*1] Petition for Review of an Order of the Board of Immigration Appeals.

DISPOSITION: Vacated and remanded.

JUDGES: Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges. EVANS, Circuit Judge, concurring.

OPINIONBY: EASTERBROOK

OPINION:

EASTERBROOK, Circuit Judge.

Jose Ernesto Flores was ordered removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E), because he committed a "crime of domestic violence"- which means any offense that is a "crime of violence" under 18 U.S.C. § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as "domestic"; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and Flores denies that his offense qualifies. We have jurisdiction to determine whether Flores has committed a removable offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but if he has done so then we lack jurisdiction to review any other issues. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez v. INS, 533 U.S. 348, 150 L. Ed. 2d 392, 121 S. Ct. 2268 (2001).


Flores pleaded guilty in Indiana to battery, a misdemeanor, which in that state is any touching in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1. He received a one-year sentence because bodily injury ensued. Flores admitted at a removal hearing that the victim was his wife. Although he now contends that he was not given sufficient time before that admission to retain counsel, a removal proceeding is not a criminal prosecution, and the Constitution does not of its own force create a right to legal assistance at every stage. See Stroe v. INS, 256 F.3d 498 (7th Cir. 2001). The immigration judge's failure to grant Flores additional continuances before asking questions about the charges may have violated a regulation, but given § 1252(a)(2)(C) we lack authority to vindicate regulation-based arguments by criminal aliens. (Violation of a federal regulation differs from violation of the Constitution. See United States v. Caceres, 440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979).) By the time the hearing proper arrived, Flores was represented by counsel, as he has been ever since. Lack of legal assistance earlier [*3] could matter only to the extent it affected the determination that he committed a crime of domestic battery- and that would be possible only if, with the assistance of counsel, Flores might have refused to make one of the concessions at the earlier, uncounseled proceedings: that (a) he is the "Jose Ernesto Flores " who pleaded guilty to the charge, and (b) the victim was his wife. Yet Flores has never (with or without counsel) denied either of these things. The issue at hand is entirely legal: how should the offense created by Ind. Code § 35-42-2-1 be classified for purposes of § 237(a)(2)(E)? It would be pointless to debate whether, some years ago, the immigration judge should have afforded Flores more time to hire a lawyer. We move to the main event.

Section 16 says that "The term 'crime of violence' means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [*4] " Because the offense of which Flores was convicted is a misdemeanor, only § 16(a) matters. It is limited to crimes that have as an element the use of "physical force against the person ...of another". Indiana law provides: "(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it results in bodily injury to any other person". Ind. Code § 35-42-2-1. Flores pleaded guilty to this "Class A" version of the misdemeanor offense. The parties treat bodily injury as an "element" because it increases the maximum punishment. There are two other elements: an intentional touching, plus a rude, insolent, or angry manner. Rudeness has nothing to do with force (though it increases the offense given by the touching). But both touching and injury have a logical relation to the "use of physical force" under § 16(a).

Flores observes that Indiana does not require much of either touching or injury. Any contact counts as a "touch"- and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane [*5] qualifies if it hits the target. Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 5 Ind. Dec. 451, 205 N.E.2d 823 (1965). Touching anything attached to someone else, such as the person's glasses, is treated the same as touching the body. Impson v. State, 721 N.E.2d 1275 (Ind. App. 2000). As for injury: a bruise suffices, as does any physical pain even without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894 (Ind. App. 2000). Indiana's courts reached this conclusion because "serious" bodily injury makes the offense a Class C felony. See Ind. Code § 35-42-2-1(a)(3). It follows, Indiana's judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to describe [*6] any of this as "violence."

Now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year's imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring him from having any contact with her. The contempt of court reflected in disobedience to this order, plus the ensuing injury, likely explains the prosecution and sentence. The immigration officials ask us to examine what Flores actually did, not just the elements of the crime to which he pleaded guilty. The problem with that approach lies in the language of § 16(a), which specifies that the offense of conviction must have "as an element" the use or threatened use of physical force. Section 16 adopts a charge-offense rather than a real-offense approach, as is common to recidivist statutes. See, e. g., Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990). As we explained in United States v. Howze, 343 F.3d 919 (7th Cir. 2003), it may be necessary even in charge-offense systems to rely [*7] on some aspects of the defendant's actual behavior, in order to know what he has been convicted of: when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is necessary to look behind the statutory definition. See also United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc). Howze was itself an example of this. State law defined, as a single felony, theft from either a living person or an embalmed body. The former is (we held) a crime of violence under 18 U.S.C. § 924(e)(2)(B)(ii) and the latter not, because only the former poses a risk of a violent encounter between thief and victim. So in Howze we examined the charging papers to learn that the victim had been alive. Indiana's battery statute, by contrast, separates into distinct subsections the different ways to commit the offense. Particularly forceful touchings, or those that cause grave injuries, come under subsections other than Ind. Code § 35-42-2-1(a)(1)(A). Thus it is possible to focus on "the elements" of that crime, as § 16(a) requires, without encountering any ambiguity, and thus without [*8] looking outside the statutory definition. See also Bazan-Reyes v. United States, 256 F.3d 600, 606-12 (7th Cir. 2001) (drunk driving is not a crime of violence under the elements approach of § 16, even if injury or death ensues).

Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the "domestic" ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one's wife or a drinking buddy injured in a barroom. The injury to a "domestic partner" is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime. See Sutherland v. Reno , 228 F.3d 171, 177-78 (2d Cir. 2000). Substantial evidence, independent of Flores's admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.

According to the immigration officials, we should grant Chevron deference to the Board's decision that Ind. Code § 35-42-2-1(a)(1)(A) [*9] satisfies the federal definition. An earlier decision reached this conclusion, after extended analysis, with respect to a Connecticut law similar to Ind. Code § 35-42-2-1(a)(1)(A), see Matter of Martin, 23 I.&N. Dec. 491 (B. I.A. 2002), and in Flores's case the Board relied on Martin. Yet Chevron deference depends on delegation, see United States v. Mead Corp., 533 U.S. 218, 150 L. Ed. 2d 292, 121 S. Ct. 2164 (2001), and § 16(a) does not delegate any power to the immigration bureaucracy (formerly the Immigration and Naturalization Service, now the Bureau of Citizenship and Immigration Services), or to the Board of Immigration Appeals. Section 16 is a criminal statute, and just as courts do not defer to the Attorney General or United States Attorney when § 16 must be interpreted in a criminal prosecution, so there is no reason for deference when the same statute must be construed in a removal proceeding. Any delegation of interpretive authority runs to the Judicial Branch rather than the Executive Branch. Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638, 108 L. Ed. 2d 585, 110 S. Ct. 1384 (1990). One [*10] law has one meaning, and a given state conviction a single classification, whether the subject arises in removal or in a recidivist prosecution in federal court. Although the agency's interpretation in Martin may have persuasive force, and we must give it careful consideration, it has no binding effect along Chevron's lines.

Martin is not persuasive. Besides starting with legislative history rather than the text of § 16- the Board saw great significance in a footnote to the Senate Report, though this footnote did not purport to disambiguate any statutory language and thus lacks weight on the Supreme Court's view of legislative history's significance- the Board made two logical errors. It relied on decisions such as United States v. Nason, 269 F.3d 10 (1st Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); and United States v. Smith, 171 F.3d 617 (8th Cir. 1999), which hold that state laws penalizing battery with intent to injure are crimes of violence under § 16 (or similar statutes, such as § 924(e)(2)). The Board concluded that this approach is equally applicable to laws such as Ind. Code § 35-42-2-1(a) (1)(A) [*11] . The first error is equating intent to cause injury (an element of the state laws at issue in those decisions) with any injury that happens to occur. It may well be that acts designed to injure deserve the appellation "violent" because the intent makes an actual injury more likely; it does not follow that accidental hurts should be treated the same way. Indiana's battery law does not make intent to injure an element of the offense; intent to touch must be established, but not intent to injure. The Board's second error was failure to appreciate the difference between felony and misdemeanor convictions. When the prior offense is a felony, then any criminal conduct that involves a "substantial risk" of physical force may be classified as a crime of violence under § 16(b) or § 924(e)(2)(B)(ii). (Howze involved a prior felony, which is why we looked to the risk of an altercation breaking out between thief and victim.) But when the conviction is for a misdemeanor, then physical force must be an element under § 16(a) or § 924(e)(2) (B)(i).

Section 16(a) refers to the "use of physical force". Every battery entails a touch, and it is impossible to touch someone without applying [*12] some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose [*13] that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.

To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature- the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have already drawn just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999). Otherwise "physical force against" and "physical contact with" would end up meaning the same thing, even though these senses are distinct in law. This is not a quantitative line ("how many newtons makes a touching violent?") but a qualitative one. An offensive touching is on the "contact" side of this line, a punch on the "force" side; and even though we know that Flores's acts were on the "force" side of this legal line, the elements of his offense are on the [*14] "contact" side. Because § 16(a) tells us that the elements rather than the real activities are dispositive in misdemeanor cases, this conviction cannot properly be classified as a crime of violence, and the basis for Flores's removal has been knocked out- along with any obstacle to our jurisdiction.

The order of removal is vacated, and the matter is remanded to the Board.

CONCURBY: EVANS

CONCUR: EVANS, Circuit Judge, concurring. Although it's debatable whether expending dynes (to say nothing about newtons) pressing the keys of my wordprocessor to concur in this case is worth the effort, I do so because the result we reach, though correct on the law, is divorced from common sense. For one thing, people don't get charged criminally for expending a newton of force against victims. Flores actually beat his wife- after violating a restraining order based on at least one prior beating- and got a one-year prison sentence for doing so.

If it is permissible to look to Flores' "real conduct" to determine if the person he beat was his wife rather than some stranger, why does it not make perfectly good sense to allow an immigration judge to look at what he really did in other respects as well, rather [*15] than restrict the judge to a cramped glance at the "elements" of a cold statute? The more information upon which the judge acts, the better. A common-sense review here should lead one to conclude that Flores committed a "crime of domestic violence." Simply put, by any commonly understood meaning of that term, that's exactly what he did, and that should be the end of the story. We, and the IJ as well in this case, should be able to look at what really happened. We recently observed that critics of our system of law often see it as "not tethered very closely to common sense." United States v. Cranley, 2003 U.S. App. LEXIS 23573, (2003 WL 22718171, decided November 19, 2003). This case is a good example of why that observation hits the nail on the head. Nevertheless, Judge Easterbrook is correct in applying the law so I join his persuasive (as usual) and colorful- snowballs, spitballs, and paper airplanes et al.- opinion. However, I do not applaud the result we reach. And one final point: Whether doing what Flores actually did should cause him to be removed from the country is a question we are without jurisdiction to answer. For better or worse, that's a matter for the executive branch as [*16] it attempts to implement the will of Congress.

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