Category: Eleventh Circuit

eleventh circuit rules on drug convictions under mellouli

New Eleventh Circuit Decision Overrules BIA Decision on Drug Convictions

Lannie Gordon (“Gordon”) is a citizen of Guayana and a lawful permanent resident of the U.S. since 1985. On October 23, 2014, Gordon pled guilty to two counts of sale or delivery of cannabis. On January 22, 2015, Gordon was sentenced to two years of State probation. Afterward, Gordon was served by the Department of Homeland Security with a Notice to Appear in removal proceedings. The immigration judge found Gordon removable because Gordon’s convictions constituted illicit trafficking under Florida Statute. Gordon then appealed to the Board of Immigration Appeals (“The Board”), which dismissed the case and sided with the immigration judge. The Board used the modified categorical approach to reach their decision and agreed with the immigration judge because the conviction for selling or delivery of cannabis for ‘monetary consideration’ qualified as illicit trafficking convictions.

  • Approaches

Gordon appealed to the U.S. Court of Appeals for the Eleventh Circuit and argued that the Board misapplied the modified categorical approach and cannot therefore find him removable as an aggravated felon. In order to use the modified categorical approach, the Court must first decide whether the conviction is divisible so that it is subject to the modified categorical approach. A statute is divisible when it lists a number of alternative elements that effectively create different crimes. For example, in U.S. v. Howard, 742 F.3d 1334, 1346 (11th Cir. 2014), the statute in question stated that a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. This statute defines six alternatives: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture.

Next, a modified categorical approach applies to statutes that are divisible into alternative crimes and the Court may consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. Afterward, the Court compares the elements of the state crime of conviction with the elements of the generic, or federal definition of a corresponding aggravated felony.

  • Conclusion

In Gordon’s case, the Board found the statute Gordon was convicted under to be divisible and so applied the modified categorical approach, which allows for certain documents to be used to determine the alternatives. Yet, in Gordon’s case, those documents did not disclose whether Gordon was convicted for violating the element of sale or the element of delivery. As a result, the Board then should have presumed the conviction rested on the lesser of the acts, according to case law Mellouli v. Lynch, 135 S. Ct. 1980, 1986, 192 L. Ed. 2d 60 (2015), and presumed Gordon’s conviction was for delivery, which is not an aggravated felony. Since the Board’s conclusion was that Gordon’s crime was an aggravated felony because the sale or delivery was for monetary consideration their argument fails because delivery, the lesser of the acts, has no monetary consideration. Therefore, the Board did not accurately determine that Gordon was convicted of an aggravated felony and the Eleventh Circuit granted Gordon’s petition and rejected the Board’s conclusion of removability.

The case if Gordon v. U.S. Atty. Gen. To read the case click on this link.

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?

Eleventh Circuit Denies Stand Alone 212(h) Waiver

The Eleventh Circuit ruled today that a Respondent can not file a stand alone 212(h) waiver without an accompanying application for adjustment of status application.  Rivas applied for a waiver of inadmissibility nunc pro tunc after being placed in removal proceedings. He had applied for naturalization, but his application was denied since he had two larceny convictions in Florida. The immigration judge granted the waiver application and the Service appealed. The Board reversed the immigration judge’s decision reasoning that statutory revisions such is IIRIRA precluded nunc pro tunc waiver applications. The Eleventh Circuit upheld the Board’s decision on the same reasoning. The court also ruled that Congress had several rational basis to disallow  nunc pro tunc waivers. To read the decision click here.

Applying for Asylum? Should you?

This week, I will be traveling to Miami to represent a client in an asylum interview. In this post, I will be discussing eligibility for asylum in simple terms.  I will also provide a list of important resources one could use when applying for asylum.
Asylum law is the international community’s recognition that some individuals would be threatened if they were forced to return to their homeland. According to the High Commissioner of Human Rights, this practice is one of the oldest traditions in human history. National laws are used to establish eligibility for this form of protection. Under our laws, the process of establishing eligibility is a complicated one. An asylum seeker could apply for protection overseas, where he or she applies for asylum through an international agency. However, one a person is in the US, the Department of Homeland Security adjudicates these petitions.
To qualify as an asylum seeker, one must meet the definition of refugee under the Immigration and Naturalization Act. The Act defines a refugee as :”any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).
It seems like such definition should encompass many categories and should be straightforward. It suffices to say that one of the most appealed petitions in immigration law is the petition for asylum I-589. Most of the immigration cases that reach circuit review around the United States involve asylum petitions. Many people believe that the application is a straightforward one. Sometimes, the application is such; however, when the threats are not crystallized or there is a fear of future harm, one should really hire an attorney. Most of these appeals involved applicants whose petitions were not clear enough to convince the adjudicator that they were harmed or would face harm if returned to their countries.  It is very important to consult an attorney before you apply, and if you can not afford one, please visit this link to find a free attorney in your state. Please do not apply on your own, and consult an attorney, specially since the chances of success are very low (see graph below).
So to answer the question above,  consult an attorney before you apply and do discuss other options if the attorney recommends against filing. Please comment if you have any questions.
Asylum Statistics
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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. 

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.

Seventh Circuit Rules that Hearsay Evidence Violates Due Process

In a decision issued last month, the Seventh Circuit ruled that admission of highly unreliable hearsay evidence by the immigration judge violated an immigrant’s due process rights. Pouhova is a Bulgarian citizen who applied for adjustment of status but was placed in removal proceedings in 2007.  One of the removal grounds was allegedly assisting an alien enter the US illegally in violation of  8 USC 1227(a)(1)(E)(i).


To prove deportability, the Service introduced the affidavit of another person who allegedly used her passport to enter the US in 2000 and the affidavit of the officer who interviewed that person at the airport prepared in 2007.  Pouhova challenged the admission of these documents since she was not allowed to cross-examine the witnesses. The immigration judge admitted the documents over these objections, sustained the charge, and ordered her removed. The BIA upheld the decision.
In reversing the BIA’s decision and ordering a new hearing, the Seventh Circuit reasoned that Pouhova’s due process rights were violated since the documents were not reliable and since she was not allowed to cross-examine the witnesses.
I have run into this problem before, where the government tried to admit documents without producing the declarant. I currently have a case pending before the Board on the same issue. The case is a case of first impression in the Eleventh Circuit. I will keep you updated.