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Matter of Castillo-Perez (A.G. 2019)

Decided October 25, 2019
To establish eligibility for cancellation of removal for non-permanent residents under the Immigration and Nationality Act as a defense to deportation the immigrant must show good moral character for a period of ten years, which is calculated backward from the date on which the application is finally resolved by the Immigration Judge or the Board of Immigration Appeals. This decision of the Attorney General holds that two or more convictions for driving under the influence during the relevant period establishes a presumption that an immigrant lacks the required good moral character.
What is particularly damning for affected immigrants is that the Attorney General’s decision seems to indicate that no amount of reformation or rehabilitation will be sufficient to overcome the presumption.  At page 671, the Attorney General states that the immigrant cannot overcome this presumption by simply showing that he “reformed himself after those convictions.”  So the decision appears to hold that the immigrant must have committed at least one of the DUIs because of some abnormality in behavior at the time of offense, e.g., the immigrant recently received a new prescription and was not used to the medication, the immigrant was drugged involuntarily, or the immigrant had something serious happen, like a death in the family, that caused the immigrant to drink when he was a teetotaler.

This opinion uses the term “DUI” to mean all state and federal impaired-driving offenses, including “driving while intoxicated,” “operating under the influence,” and the like, that make it unlawful for an individual to operate a motor vehicle while impaired. This term does not include lesser included offenses, such as negligent driving, that do not require proof of impairment. Although DUIs are the offenses at issue here, nothing in this opinion prevents immigration judges or the Board of Immigration Appeals from taking into account other convictions, such as negligent driving, in determining whether to grant cancellation of removal.

As the Attorney General points out at page 670, “Even setting good moral character aside, an alien with multiple DUI convictions would likely be denied cancellation of removal as a purely discretionary matter.”   But this case may be the nail in the coffin for many.
At least two courts have held that whether the good moral requirement has been met is a question not subject to judicial review.  Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (court lacks jurisdiction to review IJ determination that respondent lacked good moral character required to be eligible for relief); Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005).  Another has held that it is.  Jean v. Gonzales, 435 F.3d 475 (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review).

Denver DA Office Policy Regarding Immigration

Decided April 23, 2019
As a lawyer who specializes in crimmigration (the intersection between criminal law and immigration), it is always frustrating when a deputy district attorney tells me that they cannot consider the immigration consequences of a criminal conviction because it would be unfair to treat people differently. The truth is that NOT considering the immigration consequences of a crime when offering a plea deal is treating people differently. This memo from the Denver District Attorney is a common sense fix to this misconceived logic set out in a thoughtful manner.

Unless these immigration effects are taken into consideration by deputy district attorneys in appropriate circumstances, some defendants will be exposed to direct consequences that were not intended by the prosecutor in light of the facts and significance of the criminal offense and the background and history of the defendant. Consideration of the impact of consequences, particularly in the context of immigration consequences, is consistent with the duty of all prosecutors to pursue justice by prosecuting the guilty, protecting the innocent, and ensuring that the punishment fits the crime.

Hopefully more district attorney offices throughout Colorado and the United States will catch on and take lesson from our Denver’s DA.

United States v. Bettcher, 911 F.3d 1040 (10th Cir. 2018)

Decided December 21, 2018

While Colorado’s Third Degree Assault may not be categorically a “Crime Involving Moral Turpitude,” causing an immigrant to be deportable under that ground, after the Tenth Circuit’s recent holding in United States v. Bettcher, 911 F.3d 1040 (10th Cir. 2018), we are no longer recommending Third Degree Assault as a safe immigration plea in the domestic violence context, as it may cause an immigrant – including any Lawful Permanent Resident – to be removable under 237(a)(2)(E)(i) of the Immigration and Nationality Act.

The phrase “crime of domestic violence” at section 237(a)(2)(E)(i) of the Act means any crime of violence (as defined in section 16 of title 18, United States Code) with a domestic component. 18 U.S.C. § 16 contains two parts; (a) and (b).  Subsection (b) has been held unconstitutionally vague. Golicov v. Lynch, 837 F.3d 1065, 1074 (10th Cir. 2016).  Therefore, the only issue is whether the conviction “has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another” under subsection (a).

Immigration courts will look to the underlying facts of the case through the “circumstance specific approach” to determine whether there was a domestic relationship involved.  It is immaterial if the “DV tag” at C.R.S. 18-6-800.3(1) is used for reasons beyond the scope of this blog entry.

In 2004, the Supreme Court held in Leocal v. Ashcroft, 543 U.S. 1 (2004), that a state DUI offense which (1) does not have a mens rea (state of mind) component; or which (2) requires only a showing of negligence in the operation of a vehicle is not a “crime of violence” under 18 U.S.C. 16.  The Supreme Court held that accidental or negligent conduct would not constitute the use of force.  The Court declined to address “whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. § 16 (a).”  Id. at 13.

However, after Leocal, the Tenth Circuit in United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) held that a reckless mental state would not constitute a crime of violence under 18 U.S.C. § 16 (a). “In light of the persuasive reasoning of our sister circuits, we are convinced that recklessness falls into the category of accidental conduct that the Leocal Court described as failing to satisfy the use of physical force requirement under either of § 16’s definitions of ‘crime of violence.'” Id. at 1124.

But twelve years after Leocal, the Supreme Court issued a new case pointedly addressing the issue Leocal reserved – whether the Court would group reckless harm (voluntary acts “undertaken with awareness of their substantial risk of causing injury”) with intentional and knowing harm, or instead, with negligent and accidental harm.  The Supreme Court chose the former. Voisine v. United States, 136 S. Ct. 2272, 2279 (2016).  In so doing, it expressly limited its holding to 18 USCS 922(g)(9)(firearm prohibition for those convicted of misdemeanor domestic violence offenses).  See also, In re Chairez-Castrejon, I26 I & N Dec. 819, n. 4 (BIA 2016).

Prior to Bettcher, Colorado’s Third Degree Assault would arguably still be a safe plea for immigration purposes under Zuniga-Soto and Chairez-Castrejon.  However, Bettcher wholeheartedly adopts the reasoning in Voisine and does not limit it to 18 USCS 922(g)(9).  In Bettcher, the Tenth Circuit expressly rejects the logic used in Zuniga-Soto.

Bettcher would have us confine Voisine to the misdemeanor-crime-of-domestic-violence context. By his account, “the fact that Voisine construed the word ‘use’ to include reckless conduct in the context of § 921 has no bearing on how the elements clause[s] of § 16, the ACCA, and § 4B1.2 should be interpreted.” Br. for the Appellee at 18. Yet as noted in the preceding paragraph, our court has already extended Voisine’s recklessness reasoning outside of the 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) (misdemeanor crimes of domestic violence) context. We do so again here. None of Bettcher’s arguments for excluding reckless conduct carry more force when applied to U.S.S.G. § 4B1.2(a)(1)’s elements clause than similar arguments did when applied to the elements clauses in play in earlier cases. As did those cited cases, we recognize that Voisine reserved deciding whether recklessness sufficed to establish the “use” of force in any other elements clause, including 18 U.S.C. § 16(a). Voisine, 136 S. Ct. at 2280 n.4. But Voisine’s reading of Leocal defeats the reach we attributed to it in the Zuniga-Soto line of cases. So we now conform our reading of Leocal to that announced in Voisine, which puts us on a different course.

United States v. Bettcher, 911 F.3d 1040, 1045 (10th Cir. 2018).  Although addressing a different statute than 18 U.S.C. § 16 – albeit with the exact same language – just as the court did in Zuniga-Soto, Bettcher makes clear that Colorado’s Third Degree Assault is no longer a safe plea, and will most likely be considered a deportable offense under 237(a)(2)(E)(i) of the Immigration and Nationality Act.  “Simply put, [Tenth Circuit] reasoning in Zuniga-Soto and Duran has lost viability after Voisine.” Id. at 1047.

Matter of Eduardo VELASQUEZ-RIOS (BIA 2018)

Decided October 4, 2018

This case deals with the amendment to section 18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence that could have been imposed for an immigrant’s State offense from 365 days to 364 days.  The California legislature passed this amendment for the obvious reason to protect immigrants from removal.  The amendment was also explicitly retroactive.  However, in this case the BIA held that the amendment did not affect the applicability of section section 237(a)(2)(A)(i)(II) of the Immigration and Nationality Act (crime involving moral turpitude within 5 years of admission for which a sentence of 1 year or more may be imposed).  Therefore, the immigrant in this case could not take advantage of the amendment to avoid removal.  According to the BIA:

Although we recognize that section 18.5 may have retroactively modified the maximum possible sentence for the respondent’s forgery offense for purposes of State law, it does not affect the immigration consequences of his conviction under section 237(a)(2)(A)(i)(II) of the Act, a Federal law. By its plain terms, that provision is concerned with whether an alien has been convicted of a crime involving moral turpitude for which a sentence of 1 year or longer “may be imposed.” (Emphasis added.) In other words, it calls for a backward-looking inquiry into the maximum possible sentence the alien could have received for his offense at the time of his conviction.

This holding is a bit illogical in my option as it completely ignores the fact that the California legislature enacted the law retroactively.

Matter of Julio MEDINA-JIMENEZ (BIA 2018)

Decided August 7, 2018
This case is a sequel to Matter of OBSHATKO.
In that case, the BIA determined that the categorical approach should not be applied when determining whether a violation of a protection order renders an immigrant removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act – even when a conviction underlies the charge of removability.
In this case, the BIA further held that whether an individual is disqualified from cancellation of removal under INA § 240A(b)(1)(C) for having been “convicted” of an offense under INA § 237(a)(2)(E)(ii) also should not be determined under the categorical approach. The bar to eligibility for cancellation of removal in section 240A(b)(1)(C) applies to offenses referenced under section 237(a)(2), even if, as in this case, the immigrant is not “in and admitted to the United States,” as required by section 237(a) of the Act for an immigrant to be removable under a section 237(a)(2) ground. Gonzalez-Gonzalez, 390 F.3d at 651–53 & n.2; Matter of Ortega-Lopez, 27 I&N Dec. 382, 398 (BIA 2018).

The categorical approach does not govern whether violating a protection order under 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only decide whether the alien has been convicted within the meaning of the Act and whether that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.