Category: aggravated felonies

Fourth Circuit Rules that 1st Degree Arson is Aggravated Felony

The fourth circuit ruled  that Maryland’s 1st degree arson is an aggravated felony for immigration purposes. The petitioner was a lawful permanent resident who pleaded to first degree arson under Maryland law. She was sentenced to 365 in prison. in 2013, the Service placed her in removal proceedings for her first degree arson conviction. She was placed into removal as an alien who was convicted of an aggravated felony under 101(a)(43)(E) of the INA. Her attorney argued that her first degree arson was not an aggravated felony since the property was not used in interstate commerce to fall under the federal 1st degree arson statute. The immigration judge ruled against her and she appealed. The Board, in a one member panel, upheld the immigration judge’s decision.

Before reaching the main issue of whether the first degree arson conviction was an aggravated felony, the court decided that the Board’s decision warranted Chevron deference. The court ruled that it does. It then moved to consider the first degree arson conviction for immigration purposes. the court compared Maryland’s first degree arson to the federal statute and found them identical except for the interstate commerce element. The court ruled that Congress did not intend for statutes to be exact matches for them to be aggravate felonies under the INA’s definition. The court ruled that even though Maryland’s first degree arson was not an exact match, it could still be deemed an aggravated felony for immigration purposes. The court reasoned that giving the statute a different meaning would contradict Congress’s intent. The court, however, had to go through the second step of Chevron since there was a contradictory ruling from a sister court. The court ruled that the precedential decisions on which the Board relied deserved deference under the Chevron analysis.  The court thus denied the Petition for review.

This decision shows that aggravated felonies are very hard to determine. It was not clear whether there was an argument under Padilla v. Kentucky or if counsel moved to rescind the conviction based on lack of immigration consequences advise. It is very important to hire an experience counsel to help you in removal proceedings, especially if you have been convicted of a serious crime which might be classified as an aggravated felony under 101(a)(43(E) of the INA.

The decision is ESPINAL-ANDRADES v. HOLDER, and you can read it here.

What do you think?

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Don’t Run Away from Cops!

Thinking about running away from the cops? If you are an immigrant, you should think twice before you do . The Eleventh Circuit ruled recently that aggravated fleeing under Florida Statute 316.1935(4)(a) is an aggravated felony for immigration purposes.

The Respondent appealed the Board’s decision upholding the immigration judge’s decision ordering his removal. He was convicted of aggravated fleeing under Florida Statute 316.1935(4)(a) and sentenced to five years imprisonment after he violated his probation. He argued, among other things, that he was not an aggravated felon, since the Florida statute did not require the use of force to make it a “crime of violence”. You may recall that crime of violence, for immigration purposes, are analyzed under 18 U.S.C. 16, which defines the terms for immigration purposes. Section 16(a) requires the use of force, and 16(b) classifies any felony that has a likelihood of the use of force as a “crime of violence”.

The court reasoned that the statute does not fall under 16(a), but ruled that it does fall under 16(b) since the mere chance that the felon would flee from law enforcement, could lead to injury to others or their property. The court added that the desperation of the person fleeing raises the prospects of using force.  Thus, the court ruled that a conviction under the statute is an aggravated felony. To read the decision click here.

I respectfully disagree with the court, since the statute itself does not require the use of force. This will open the door to the expansion of the definition. Do you agree?

Board Rules that Conditional Permanent Resident Admitted at POE Ineligible for 212(h) Waiver

The Board of Immigration Appeals ruled today that a conditional permanent resident admitted as such at a port of entry is ineligible for cancellation of removal since he was an aggravated felon. The Respondent in the case was a citizen of North Korea who was convicted of two crimes involving moral turpitude and an aggravated felony. He was admitted as a conditional resident in 1991 and was placed in removal proceedings in 2013. He conceded removability at his hearing but applied for adjustment of status along with a 212(h) waiver. The immigration judge ruled that he was ineligible for adjustment and the waiver since he was admitted to the United States and convicted of an aggravated felony. In upholding the immigration judge’s decision the Board ruled that conditional residents admitted at a port of entry is an alien admitted for permanent residence. The Board ruled that since the conviction was within 7 years of his admission, he was ineligible for cancellation of removal. Click here to read the decision.

Eighth Circuit Upholds Denial of Adjustment of Status

Last week the Eighth Circuit upheld the Board of Immigration Appeals’ decision upholding the denial of an applicant’s adjustment of status application. Luis Garcia-Gonzalez was a native of Mexico and a lawful permanent resident. He was placed in removal proceedings for his 2005 conviction under 18 U.S.C. § 1962(d)  for racketeering. He was placed in removal proceedings for committing an aggravated felony. The immigration judge ordered his removal after sustaining the charge and denied his application for adjustment of status since he was inadmissible and the BIA upheld. 
In his petition for review he argued that the BIA and the immigration judge erred in ruling that he was ineligible for adjustment.  The court ruled that since Garcia-Gonzalez admitted to the essential facts of conspiracy, he was inadmissible and ineligible for adjustment of status

Eleventh Circuit rules that Florida Statute 893.13 is not An Aggravated Felony

Last week, the Eleventh Circuit ruled that Florida Statute 893.013(1)(a)(2) is not an aggravated felony under the Immigration and Naturalization Act. The respondent was placed in removal proceedings as an aggravated felon for his conviction under the statute. At the individual hearing, the respondent challenged his designation as an aggravated felon and the immigration judge ordered his removal.  The BIA upheld the immigration judge’s decision and he petitioned the Eleventh Circuit for review. 
Upon review, the Eleventh Circuit ruled, using the categorical approach, that Florida’s Statute  is not an aggravated felony since someone could be convicted under it without knowledge of the nature of the substance in his possession
This decision is the latest in a series of cases the Eleventh Circuit has issued relating to immigration consequences of criminal offenses. These pro-immigrant decisions are helpful for immigrants with drug offenses. Of course, the best course is not to get in trouble in the first place. Comment or contact me if you have any questions. 

BIA Rules that Unlawful possession of Ammunition by a Felon is Aggravated felony

Last week, the Board of Immigration Appeals (BIA) ruled that the unlawful possession of ammunition by a felon under 8 USC 922(g) is an aggravated felony under the Act. In Matter of Oppedisano,  26 I&N Dec. 202 (BIA 2013), a native of Italy was admitted to the US as a permanent resident on September 9, 1973. Id. He was convicted of unlawful possession of ammunition by a convicted felon under 8 USC 922(g) in 2012 and sentenced to probation for 5 years and fined $15000. Id. at 203. He was placed in removal proceedings and charged as an aggravated felon under 101(a)(43)(E)(ii) and was ordered deported by the immigration judge.
Upon appeal, Oppedisano argued that his conviction was not an offense under 101(a)(43)(E)(ii) since it did not relate to a “firearms offense” since the parenthetical in the section created a limiting clause. The Board reasoned that the offense related to a firearms offense since the quotations did not limit the offenses for which an alien could be deported.  Id. at 204. The Board added that Congressional, ascertained from the language of the statute, was not to limit the offenses under the section since it did not use restrictive language in the law. Id. The Board upheld the removal order for these reasons.
   

Fifth Circuit Rules that Expedited Removal Applies to All Aliens

In a decision issued last week, the Fifth Circuit Court of Appeals ruled that expedited removal under INA 238 applies to all aliens. INA 238 allows the expedited removal of any alien who is confined in a correctional institution and convicted of an aggravated felony. Under the statute the Department of Homeland Security must issue a Notice of Intent to proceed through expedited proceedings. The alien may apply for Withholding of Removal under the Torture Convention if he has a fear of returning to his country.
Valdiviez-Hernandez was under investigation for allegedly using someone else’s identity and social security number. ICE found a firearm in his house for which he was convicted as an illegal alien in possession of a firearm. The Service initiated expedited removal proceedings and he refused to sign the Notice. He also failed to respond to the allegations. The immigration judge denied his request for Withholding of Removal and he appealed. He argued that he was not subject to expedited removal since he was not admitted to the United States since he entered the United States illegally. The court rejected this argument and followed other circuits ruling that nothing in the statute limits these proceedings to lawfully admitted aliens. The court thus denied the petition for review and upheld the removal order. 
The argument that Valdiviez-Hernandez was not subject to expedited removal because he was not admitted was doomed from the beginning since the statute clearly expands these proceedings to legal and illegal aliens. The better argument would have been a challenge to the procedure on Due Process grounds. I will follow this case to see if Valdiviez-Hernandez files a petition for rehearing en banc

First Circuit Invalidates Post-Departure Bar

The First Circuit ruled last week that the post-departure rule is unconstitutional. The Post-departure bars applies to Motions to Reopen filed after the alien has been deported. Under the pertinent regulations, the motion has to be filed within 90 days of an administrative decision. The BIA has limited the alien’s ability to file such motions if he is outside of the United States under 8 CFR 1003.2(d), or what is known as the post-departure bar.  
In Santana v. Holder an alien was convicted of possession of a controlled substance. He was placed in removal proceedings as an aggravated felon. He moved to reopen his criminal proceedings. The immigration judge ordered his removal after DHS denied his request for a continuance. He moved to reopen his removal proceedings after he was removed and the immigration judge denied the motion. The BIA affirmed.
The First Circuit, in ruling that the BIA abused its discretion reasoned that the rule conflicted with statute. The court reasoned that the statute did not have a geographic requirement to file the motion. The court thus reversed the BIA’s decision  an remanded the case.
The decision raises the number of circuit ruling the same to seven, including the Eleventh Circuit.  

Eighth Circuit Rules that Witness Tampering is an Aggravated Felony

In a decision issued last month, the Eighth Circuit ruled that Nebraska’s witness tampering statute is an aggravated felony under the Act and is thus a deportable offense. In Lugunas, the alien was convicted of witness tampering under Nebraska’s witness tampering statute. He was placed in removal proceedings and charged with being deportable for committing an aggravated felony. He moved to terminate the proceedings and the immigration judge denied his motion. The BIA upheld and he petitioner for review.
An alien is deportable under the Act if he was convicted of an aggravated felony. Witness tampering is an aggravated felony because it relates to obstruction of justice. In denying the petition and upholding the BIA’s decision, the Eighth Circuit reasoned that the witness tampering statute requires both the actus reus of interfering with witnesses and the intent to interfere with justice.
The Eleventh Circuit has not ruled on whether witness tampering is an aggravated felony. There is a circuit split on the issue and the question might be ripe for review by the Supreme Court.