Decided: June 1, 2016
The Fourth Circuit reversed and remanded the district court’s decision.
Sometime before 2005, Agustin Lopez-Collazo, a native Spanish speaker who understood little, if any, English, illegally entered the United States from Mexico. In January 2005, Lopez-Collazo plead guilty to theft under Maryland law, and in May 2007 he was arrested again under Maryland law, and this this time plead guilty to second degree assault. Following his assault conviction in 2007, the Office of Immigration and Customs Enforcement (“ICE”) initiated expedited removal proceedings against him, during which immigration officers from the Department of Homeland Security (“DHS”) determined that his second degree assault conviction constituted an “aggravated felony.” Pursuant to the expedited removal proceedings, a Notice of Intent to Issue a Final Administrative Remove Order (“NOI”), which was in English, was properly served to Lopez-Collazo on October 5, 2007. On the backside of the NOI, Lopez-Collazo had signed following language admitting the allegations against him and waiving his right to contest the charges or seek judicial review. He was removed to Mexico in November 2007, however he returned shortly thereafter when he unlawfully crossed into Arizona in July 2008. When Lopez-Collazo was discovered in 2014, he was indicted with a federal crime for being illegally reentering in the United States after deportation.
At trial, Lopez-Collazo moved to dismiss the indictment, challenging the validity of the removal order because neither the charges nor the waiver language was written or translated to him in Spanish. Despite the government’s argument that Lopez-Collazo had explicitly waived his right to contest the charges or seek judicial review, the district court ruled that the waiver was invalid, because the lack of a translation prevented Lopez-Collazo from comprehending the NOI and the waiver language, and thus he was unable to make an informed decision. The district court further agreed with Lopez-Collazo’s argument that entry of the removal argument was fundamentally unfair because: his convictions for theft and assault did not constitute aggravated felonies, and as such he should have been offered “voluntary departure” from the United States, which fails as a basis for an illegal reentry conviction; and he was deprived of a meaningful opportunity to challenge his removal order or see voluntary departure due to the government’s failure to provide a Spanish translation of the NOI and the waiver. Ultimately, the district court found that, under current law, Lopez-Collazo’s Maryland assault conviction was not considered an aggravated felony and he should have been eligible for voluntary departure. Accordingly, the district court held that Lopez-Collazo had suffered prejudice, and the court granted Lopez-Collazo’s motion to dismiss the indictment. The government appealed, seeking reinstatement of the indictment.
In its analysis, the Fourth Circuit focused on the requirement of fundamental fairness in the entry of a removal order found in § 1326(d), which requires a defendant show that “(1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered from prejudice as a result of the defects.” With respect to the first prong, due process, at a minimum, requires that an alien subject to expedited removal be given “the opportunity to be heard at a meaningful time and in a meaningful manner.” As the Fourth Circuit points out, a meaningful opportunity cannot exist if the alien is unable to understand the proceedings without the aid of a translator. It follows, the government’s failure to provide Lopze-Collazo with a Spanish translation of the NOI infringed on his due process rights.
Turning to analysis of the second prong, whether or not Lopez-Collazo suffered prejudice as a result of the defect in his removal proceedings, the Fourth Circuit explained that the defendant must show that had such defects not occurred, a reasonable probability existed that he would not have been removed. The Fourth Circuit stated that the district court’s prejudice analysis fails because it applied the current law in determining whether Lopez-Collazo’s assault conviction constituted an aggravated felony, and not the modified categorical approach established by longstanding Fourth Circuit precedent in 2007. Doing so, according to the Fourth Circuit, disconnects the alleged prejudice from the defect in the removal proceedings.
Applying the appropriate modified categorical approach, the Fourth Circuit determined that due to the facts found in the formal charging document, which included Lopez-Collazo’s attempt to run down officers with his automobile and his striking and kicking of officers as they attempted to subdue him, his conviction for assault constituted a violent crime, and thus an aggravated felony precluding an option for voluntary departure. Lopez-Collazo’s ability to demonstrate prejudice hinges on his ability to demonstrate reasonable probability that he would not have been removed, which in turn depends on his eligibility for voluntary departure. As a result, he cannot show that prejudice occurred, and his argument for fundamental unfairness collapses.
Judge Gregory dissents, expressing his view that a misapplication of the law, as it is presently understood, can constitute a violation of due process that causes prejudice. He expressed how Lopez-Collazo’s unfortunate fate of being sentenced during a time of a tough-on-crime mentality, the constitutionality of which has been question and is now known to be improper.
Accordingly, the Fourth Circuit reversed the district court’s dismissal of the indictment and remanded the case with instructions that the indictment be reinstated, with Judge Gregory dissenting.
Decided: May 19, 2016
The Fourth Circuit denied Ndibu’s petition for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) which affirmed the immigration judge’s conclusion that Ndibu filed a frivolous asylum application and was therefore ineligible for adjustment of status.
Ndibu, a native and citizen of the Democratic Republic of the Congo (“DRC”), entered the United States using a Canadian passport that did not belong to him. After evading the attention of immigration officials for nearly three years, Ndibu filed an affirmative application for asylum. Ndibu claimed that he feared persecution on account of his political opinion were he to return to the Congo. The Department of Homeland Security (“DHS”) placed Ndibu in removal proceedings. The immigration judge concluded that Ndibu failed to demonstrate that he filed his asylum claim within one year of entering the United States and failed to establish a clear probability of persecution. The judge denied his claim for withholding of removal. Ndibu appealed, and the BIA affirmed the denial of asylum and remanded the matter for a more complete decision as to the withholding claim. During the proceedings on remand, Ndibu applied for an adjustment of status on the basis of his marriage to a United States citizen. Ndibu admitted that his previous asylum claim was false, but argued that despite having made a mistake in agreeing to submit a false asylum claim, he had otherwise lived as a law-abiding member of the community and that he was worthy of a fraud waiver to enable him to adjust his status and remain in the United States with his family. The immigration judge issued an order denying Ndibu’s applications for a waiver of inadmissibility and an adjustment of status. The BIA dismissed Ndibu’s subsequent appeal.
An alien who has knowingly made a frivolous application for asylum is permanently ineligible for immigration benefits. 8 U.S.C. § 1158(d)(6). Notice is a prerequisite to a finding of frivolousness; before an application for asylum is declared frivolous, the alien seeking asylum must be given the statutorily-required notice. While Ndibu acknowledged that the asylum application form set forth a warning about the consequences of filing a frivolous asylum application, he argued that this printed notice was inadequate and the law requires the immigration judge to provide an oral warning as well. The Fourth Circuit held that the warning on the asylum form clearly satisfied the basic requirements of advising asylum applicants that they will be permanently ineligible for any benefits under the INA if they knowingly file a frivolous application. There is no requirement that the immigration judge advise an alien—orally or in writing—of the consequences of knowingly filing a frivolous application.
Accordingly, the Court denied Ndibu’s petition for review.
Katie E. Lowery
Decided: June 17, 2016
The Fourth Circuit dismissed in part and denied in part a petition.
In 1996, Garfield Lawrence was admitted to the United States as a lawful permanent resident. Lawrence, who is originally a native of Jamaica, has had multiple Virginia state court marijuana convictions. As a result of theses marijuana convictions, the Department of Homeland Security (DHS) issued a notice to appear charging Lawrence as removable for crimes involving moral turpitude, for a conviction of an aggravated felony offense relating to the illicit trafficking of a controlled substance, and for a conviction relating to a controlled substance. Lawrence admitted to the convictions but denied that he qualified as an aggravated felon. The Plaintiff also sought protection from removal under the Convention Against Torture (“CAT”). After a hearing, the immigration judge denied the CAT claim and ordered Lawrence’s removal to Jamaica. The judge ruled that Lawrence’s convictions for distribution of marijuana constituted as “drug trafficking” aggravated felonies, making Lawrence ineligible for cancellation of removal. Lawrence appealed and the Board of Immigration Appeals affirmed on December 4, 2012. The 90-day statutory period to file a motion to reopen began on that date. Lawrence was removed to Jamaica on January 31, 2013, where he said he continued to pursue his immigration case despite difficulties of moving three times, finding employment, and living in a rural area that limited his access to international communication. In September 2013, Lawrence was able to contact the Post-Deportation Human Rights Project at Boston College where a lawyer there determined that Lawrence might have a claim under the Supreme Court’s 2013 decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). The case was eventually referred to the Capital Area Immigrants’ Rights Coalition (CAIR), the Plaintiff’s current counsel. On May 19, 2015, Lawrence moved to reopen his removal proceedings for the purpose of seeking a cancellation of removal. Because Lawrence missed the 90-day statutory window, he requested his motion be considered as timely based on equitable tolling. The Board denied the motion because Lawrence had not shown that he had acted with due diligence during the 2 years after the Supreme Court’s decision in Moncrieffe and the Board also determined that Lawrence’s case did not present an exceptional situation to warrant sua sponte reopening. Lawrence filed a motion for review.
Lawrence argued on appeal that the Board applied the wrong standard to determine equitable tolling. A petitioner seeking equitable tolling must prove (1) the Government’s wrongful conduct prevented the petitioner form filing a timely motion; or (2) extraordinary circumstances beyond the petitioner’s control made it impossible to file within the statutory deadline. A petitioner relying on extraordinary circumstances must show he has been pursuing his rights diligently. The level of diligence by the petitioner must be reasonable. Lawrence argued that the Board applied a higher level of diligence and if the correct level of diligence were applied, Lawrence would have met reasonable diligence. The court determined that the Board made no error and that due diligence was the same as reasonable diligence. Lawrence failed to account for his burden of reasonable diligence throughout the two-year period. The Board was within their discretion to deny reopening the case because Lawrence failed to meet the required level of diligence needed for equitable tolling. The court did not address Lawrence alternative argument that the Board should have reopened the case sua sponte because it did not have jurisdiction to review how the Board exercises its sua sponte discretion.
Decided: February 22, 2016
The Fourth Circuit denied in part and dismissed in part petitions for review of orders of the BIA.
In 1994, Petitioner, Wilerms Oxygene, along with his his family, sought refuge in the United States after facing political persecution in in his native country of Haiti, and two years later he was subsequently granted lawful permanent resident status in 1996. In 2011, Oxygene was convicted of several state crimes, including aggravated felonies and firearm offenses, and the Department of Homeland Security (“DHS”) began removal proceedings against him. Oyxgene feared he would be detained indefinitely if deported to Haiti, which would subject him to deplorable prison conditions and prevent him from receiving necessary medical care for his latent tuberculosis, and so he applied for deferral of removal under the Convention Against Torture (“CAT”). At his removal hearing, the Immigration Judge (“IJ”) recognized that prison conditions in Haiti remained dismal and that Oxygene was at a higher risk of disease due to his latent tuberculosis. While the IJ noted that Oxygene would possibly be detained if he was deported to Haiti, the IJ found that Oxygene failed to present evidence that “[Haitian] authorities intentionally and deliberately detained deportees in order to inflict torture.” As a result, precedent established in In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en banc), precluded Oxygene’s argument that “Haiti’s detention policy and prison conditions necessarily constitute torture under the CAT,” and he failed to meet the “more-likely-than-not burden of proof required for relief under the CAT.” Oxygene filed two appeals that challenged the BIA’s denial of his application for CAT relief and its denial of his motion to reopen the removal proceedings.
The main issue was whether In re J-E- provided the correct standard for showing intent in CAT claims. DHS contends to “establish torture meriting CAT relief,” the petitioner must show not only that foreign officials intend to detain the deportee, but also that “the alleged torturers must actually desire the consequences of their actions.” Conversely, Oxygene maintains In Re J-E- does not provide the correct standard for establishing specific intent. Instead, intent to detain “coupled with knowledge to a near certainty that severe pain and suffering will result” is enough.
The Court found that all parties involved with turning the CAT from a treat into a law—the President, the Senate and the Department of Justice—interpret the definition of torture under the CAT as “an act [that] must be specifically intended to cause severe pain and suffering.” However, none of those parties addressed the definition of “specific intent.” Instead, the Court joins the majority of their sister circuits in deferring to the BIA’s interpretation as found in In re J-E-. Thus, Oxygene must demonstration that Haitian officials “are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture.”
Accordingly, the Court rejected Oxygene’s argument that the IJ and BIA erred in applying the legal standard prescribed in In re J-E- and denied his petition for review. Additionally, due to lack of jurisdiction, the Court dismissed Oxygene’s petition for review of denial to reopen.
Decided: February 16, 2016
The Fourth Circuit found that that the Board of Immigration Appeals (“BIA”) abused its discretion when the Board denied Petitioner’s motion to reopen his removal proceedings. The Court granted the petition for review, vacated the BIA’s decision, and remanded for further proceedings.
Petitioner, Adebowla Oloyede Ojo, lawfully entered the United States at the age of six, and shortly after his arrival in country, Ojo’s uncle—a United States citizen—became his legal guardian. On June 19, 2000, when Ojo was sixteen, Ojo’s uncle/guardian filed a petition to adopt Ojo. On January 24, 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland (the “Maryland state court”), entered a judgement for adoption. During Ojo’s twenties he was convicted of two drug-related offenses—either of which qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B). On May 6, 2013, in light of Ojo’s convictions, and alleging that Ojo had not derived citizenship as an adopted child under 8 U.S.C. § 1101(b)(1)(E), the Department of Homeland Security (“DHS”) charged Ojo with removability form the Unites States under 8 U.S.C. § 1227(a)(2)(A)(iii). On June 25, 2014 Ojo appealed the decision of an immigration judge who determined that Ojo had not derived citizenship from adoption and was therefore removable from the country. Although Ojo advised the BIA that his adoptive father would seek an nunc pro tunc order from the Maryland state court specifying that Ojo’s adoption became effective before he was sixteen, BIA concluded on January 12, 2015, that the nunc pro tunc would not warrant remand and ultimately the BIA denied his motion to reopen his removal proceeding. BIA relied on its prior decisions in Matter of Cariaga and Matter of Drigo, observing that it, “does not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both filing of the adoption petition and decree.”
In Cariaga, the BIA established a blanket rule that, “[t]he act of adoption must occur before the child attains the age specified in the INA,” which precluded any consideration of a nunc pro tunc order entered after the relevant birthday but made effective before that date. Thereafter in Drigo, relying on Cariaga, the BIA rejected the contention that “a decree of adoption is fully effective as of the date entered nunc pro tunc and is entitled to recognition for immigration purpose. While the BIA did modify the Cariaga/Drigo rule during the pendency of the instant case in Matter of Huang, the Respondent still asserted that Ojo did not derive citizenship. In Huang the BIA asserted that it would recognize a nunc pro tunc “where…the State in which the adoption was entered expressly permits an adoption decree be dated retroactively.” The Court found, however, that the BIA had abused its discretion in disregarding Maryland state court’s facially valid nunc pro tunc order. Using a two-step test to evaluate the BIA’s interpretation, the Court first looked to the statutory language to determine if the term “adopted” denotes the effective date of the adoption. Reasoning that the term “adopted” was not ambiguous—which ended the judicial inquiry—and recognizing that adoption is a state matter, the Court concluded that, “[w]hen an individual has been “adopted” under 1101(b)(1)(E)(i) depends on the effective date of the adoption as set forth in the relevant state court instruments,” not by the discretionary decision of the BIA.
Accordingly, the Court granted Petitioner’s petition for review; and vacated and remanded
Aleia M. Hornsby
Decided: December 30, 2015
The Fourth Circuit denied Petitioner Eddy Etienne’s (“Etienne”) petition for review.
In 1984, Etienne entered the United States as an illegal immigrant. In 1986, Etienne pleaded guilty to conspiracy to violate the controlled dangerous substances law of Maryland. After his release from prison, Etienne continued to live in the United States illegally. After the Haiti earthquake in 2006, Etienne applied for Temporary Protected Status (“TPS”) and his request was accepted. However, in 2014, the Department of Homeland Security (“DHS”) denied his application for renewal. DHS initiated expedited removal proceedings against Etienne and charged him with being deportable under the Immigration and Nationality Act (“INA”) for being an alien convicted of an “aggravated felony.” DHS claimed that Etienne’s 1996 Maryland conspiracy conviction was an aggravated felony. On March 20, 2014, DHS issued a Final Administrative Removal Order for Etienne’s removal to Haiti. As a result, Etienne filed his petition for review to the Fourth Circuit.
On appeal, Etienne argued that his 1996 Maryland conspiracy conviction did not constitute an “aggravated felony” under the INA, and therefore, the DHS erred in finding him deportable. The Court, however, had to first address whether Etienne’s failure to raise this argument in the administrative proceedings deprived the Court of jurisdiction. The Court agreed with Fifth Circuit case law and found that, in expedited removal proceedings, an alien has no opportunity to challenge the legal basis of his removal. As a result, the Court determined that it had jurisdiction over Etienne’s case.
Second, the Court addressed whether Etienne’s conspiracy conviction was an “aggravated felony” under the INA. The parties agreed that a categorical approach had to be applied to determine whether a state-law crime qualified as an “aggravated felony.” The parties, however, disagreed as to whether, under a categorical approach, “the term ‘conspiracy’ in 8 U.S.C. § 1101(a)(43)(U) is defined as it was at common law or by the prevailing contemporary meaning of the term, which requires proof of an overt act.” Etienne argued that because Maryland’s conspiracy crime did not require proof of an overt act, that his conviction did not qualify as an “aggravated felony.” The Court disagreed, however, and noted that there was no evidence that Congress intended not to incorporate the common-law definition of “conspiracy” when it included that term in the INA. As such, the Court held that a state-law conspiracy conviction does not require an overt act as an element for the conviction to qualify under the INA as an “aggravated felony.” Therefore, the Court found that DHS properly classified Etienne’s conviction.
Accordingly, the Court denied Etienne’s petition for review.
Decided: December 4, 2015
The Fourth Circuit dismissed in part and denied in part.
The Fourth Circuit began by determining that the proper standard of review of BIA decisions was de novo, and that because the BIA expressly adopted the decision of the IJ, that both decisions were reviewable. The Court turns to Hernandez-Nolasco’s argument that the IJ and BIA erred in determining that he was convicted of a “particularly serious crime,” because although he was convicted of possession with intent to distribute cocaine, that offense was not “particularly serious” as defined in U.S.C. § 1231(b)(3)(B)(ii) because his conviction did qualify as an “aggravated felony.” Furthermore, Hernandez-Nolasco argued that his case qualified under the “unusual circumstances” exception and the IJ should have received evidence about the unusual circumstances. However, the Court disagreed with Hernandez-Nolasco. After tracing the definitions of “particularly serious crime,” “aggravated felony,” “drug trafficking crime,” and “unusual circumstances,” the Court determined that because the conviction of possession of cocaine with intent to distribute gave Hernandez-Nolasco a five-year sentence, that sentence rendered the crime per se a “particularly serious crime.” Therefore, because it was a “particularly serious crime,” the “unusual circumstances” exception did not apply since that exception only applies when the sentenced imposed is less than five years.
As to Hernandez-Nolasco’s argument that the IJ and the BIA were wrong in concluding that he “failed to meet his evidentiary burden to establish that he qualifies for deferral of removal under the CAT,” the Court determined that it lacked jurisdiction to take up this issue. Because the INA limited the Court’s jurisdiction solely to constitutional claims or questions of law, this argument, which turned purely on a question of fact, was outside the Court’s purview. The Fourth Circuit then dismissed in part and denied in part Hernandez-Nolasco’s petition for review.
Decided: December 2, 2015
In a case about continuing or closing an immigration removal proceeding for petitioner Madiagne Diop to receive a mental health evaluation, the Fourth Circuit found no error in the Immigration Judge’s (IJ) assessment of Diop’s mental health. On this basis, the Fourth Circuit denied Diop’s petition for review.
Diop, a native of Senegal, was admitted to the United States in October of 1997 on a B-2 visitor visa which expired in April, 1998. Diop overstayed his visa, living in the United States without legal immigration status from April, 1998. In January, 2012, Diop was arrested following a psychotic episode at the store where he worked. Following his arrest, he was given a hospital psychological evaluation before being placed in police custody. The psychological evaluation diagnosed psychosis, and prescribed antipsychotic medication. Diop ultimately pled guilty to three counts of second-degree assault, and was sentenced to 3 years probation. In November, 2012, the Department of Homeland Security served Notice to Appear on Diop, indicating that he was removable for overstaying his visa.
Diop’s removal proceedings included five appearances before an IJ between November, 2012 and May, 2013. At the November, 2012 hearing, the IJ indicated that she would evaluate Diop’s mental competency at the next hearing. At a December, 2012 hearing, the IJ asked Diop a series of questions. In response to the questions, Diop indicated that he was able to communicate with an attorney, except that he had to pay to use the phone where he was staying, that he had no history of mental health problems, and that he understood the hearings to be about immigration. Based on this exchange, Diop’s attorney’s evaluation, and the full record, the IJ found Diop mentally competent. In a February, 2013 hearing, Diop admitted the allegations against him, and agreed that he was removable. The IJ granted a continuance, so that Diop’s attorney could seek prosecutorial discretion. In April of 2013, Diop sought a continuance or closing of his proceeding to await passage of an immigration reform law he felt would affect his case. The IJ denied his request, and granted him voluntary departure, or alternatively, ordered his removal. In June, 2013, Diop appealed to the Board of Immigration Appeals (BIA). Based upon mental health records from his January, 2012 arrest, Diop argued that the IJ should have closed or continued his case to allow him to undergo a mental health evaluation, which he also claimed would have allowed him to argue for withholding of removal on the grounds of mental incompetency. The BIA, finding that the mental health records from January, 2012, reflected only Diop’s mental state at the time, and were contradicted by a currently clean mental health record, and that Diop had not argued his withholding claim before the IJ, affirmed the IJ. Diop then petitioned the Fourth Circuit for review, arguing that the IJ’s refusal to continue or close the removal proceeding to allow for a mental health evaluation was a violation of due process.
The Fourth Circuit found that the IJ did not err in not closing or continuing the removal proceedings to allow Diop to seek a mental health evaluation. The Fourth Circuit noted that the BIA standard for competency includes whether the petitioner has an understanding of the proceedings, whether the petitioner can consult with his attorney or representative, and whether the petitioner has an opportunity to present evidence, and cross-examine. If there is an indication of incompetency, the IJ is required to take measures, which will vary depending on the circumstances, to evaluate competency. Here, the Fourth Circuit found that there were no indications of Diop’s incompetency. Despite the psychological evaluation from his January, 2012 arrest, Diop denied a history of mental health problems at his removal hearings, and his attorney further indicated that she thought Diop had no mental health problems. In fact, the Court noted, in seeking a continuance, Diop himself argued that he was mentally healthy, and that the January, 2012 incident was an aberration. Diop supported this claim of mental health with current mental health records. Nonetheless, the Fourth Circuit noted, the IJ evaluated Diop’s competency, holding a hearing to evaluate his mental health and his ability to interact with his attorney. Based on these findings, the Fourth Circuit denied Diop’s petition for review. The Fourth Circuit also upheld the BIA’s denial of Diop’s withholding of removal claim, finding it had not been raised before the IJ.
Katherine H. Flynn
Decided: November 20, 2015
The Fourth Circuit denied Hernandez-Zavala’s petition for review of the Board of Immigration Appeal’s (BIA’s) order affirming the Immigration Judge’s (IJ’s) pretermission of Hernandez-Zavala’s application for cancellation of removal.
On March 8, 2012, Hernandez-Zavala, a citizen of Mexico, was charged with several misdemeanors under North Carolina law. Additionally, on March 21, 2012, he pleaded guilty to the offense of assault with a deadly weapon in violation of North Carolina law. General assault and battery is covered by this offense; it does not specifically cover incidents of domestic violence or require proof of a domestic relationship. The victim of this incident was a woman Hernandez-Zavala referred to as his “partner,” with whom he resides and shares a child.
On March 9, 2012, the Department of Homeland Security (DHS) served Hernandez-Zavala with a Notice to Appear. DHS charged him with removability under the Immigration and Nationality Act (INA), and Hernandez-Zavala conceded removability and applied for cancellation of removal. In February of 2013, DHS moved to pretermit his application noting that he had been convicted of a crime of domestic violence. Under the INA, “any alien who at the time after admission is convicted of a crime of domestic violence…is deportable.” Claiming that Hernandez-Zavala had committed such a crime, DHS argued that he was thus ineligible for cancellation of removal. Hernandez-Zavala contested this assertion, arguing his assault conviction did not constitute as a “crime of domestic violence.” The IJ granted DHS’s motion to pretermit Hernandez-Zavala’s application for cancellation of removal because the IJ determined he was statutorily ineligible for cancellation of removal due to his conviction of a crime of domestic violence. Hernandez-Zavala timely appealed.
The Fourth Circuit analyzed whether a conviction under a state law that does not have a domestic relationship as an element of the offense can constitute a crime of domestic violence. In order to be a crime of domestic violence, the crime must be: (1) a crime of violence and (2) the crime must have been committed by an individual who was in a domestic relationship with the victim. There is no question that this case constituted a crime of domestic violence or that Hernandez-Zavala was in a domestic relationship with the victim. The relevant question is whether the domestic relationship requirement in the statute must be an element of the underlying offense of conviction, triggering the categorical approach, or if it must merely be an attendant circumstance of the underlying conviction, triggering the circumstance-specific approach.
Hernandez-Zavala argues that the categorical approach would apply, only looking at the statutory definition of the North Carolina offense to see if it contains the necessary elements of a crime of domestic violence under the INA. Conversely, the government argues that the circumstance-specific approach would apply, and the court may also consider underlying evidence of the conviction to determine if a domestic relationship existed between Hernandez-Zavala and his victim.
The Fourth Circuit determined that when assessing whether an underlying state conviction qualifies as a crime of domestic violence under the INA, the use of the circumstance-specific approach is proper in determining whether the requisite domestic relationship existed. Therefore, the Fourth Circuit concluded that Hernandez-Zavala’s conviction for assault with a deadly weapon against a woman that he had a relationship with was a domestic relationship and constituted a crime of domestic violence causing his cancellation of removal inapplicable. Ultimately, the Fourth Circuit affirmed the decision of the BIA and denied Hernandez-Zavala’s petition for review.
Austin T. Reed
Decided: July 23, 2015
The Fourth Circuit vacated Dominguez’s sentence and remanded for further proceedings
This case was an appeal from the district court decision in which Edgar Parrell-Dominguez (“Dominguez”), an illegal immigrant, was charged with trafficking cocaine and was subjected to a sentencing enhancement. Since Dominguez had a prior offense that the district court described as a “crime of violence,” he was subjected to a 16-level enhancement to his sentence, even though he argued that his prior offense was not a crime of violence and that he should therefore only be subjected to an 8-level enhancement. The district court, in taking into consideration the sentencing guidelines, sentenced Dominguez to 65 months, and this appeal followed.
The Fourth Circuit first looked at whether Dominguez’s prior crime, discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a), was a crime of violence for the purposes of enhancement. The Court first had to determine what a crime of violence is under the enhancement statute § 2L1.2, and applied the “categorical approach,” a test that looks at “only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.” Although the statute did not define the phrase “crime of violence,” it contained a “use-of-force” clause that notably included only force against the person of another. By looking at the plain meaning of the statute, the Court concluded that this meant that the use-of-force clause did not involve the use of force against property and, furthermore, did not include “acts that merely pose a risk of harm to another person.” The Court then turned to the statute itself, noting that Supreme Court of North Carolina had “read a knowledge element into the offense,” and that the statute therefore proscribed a person from “intentionally, without legal justification or excuse, discharg[ing] a firearm into [a]n occupied building [A] with knowledge that the building is then occupied by one or more persons or [B] when he has reasonable grounds to believe that the building might be occupied by one or more persons.” Based on this reading, the Court concluded that the statute did not require the use of force against a person, so it did not require a finding that a crime committed under that statute was a crime of violence; the crime could be accomplished merely by firing at a building that the shooter knew or had reason to believe the building was occupied. Therefore, Dominguez’s prior offense was not a crime of violence.
After finding that Dominguez’s prior offense was not a crime of violence, and that therefore the district court erred in applying the sentencing guidelines, the Court then turned to a harmless error analysis. An error in this case would have been harmless if the district court would have sentenced Dominguez in the same way even if the district court had decided the crime of violence issue in Dominguez’s favor. When it looked at the 65 month sentence, the amount of time that the court below took in determining the sentence, and the recommendation of the Government that the judge sentence Dominguez in the mid-to-high end of the range that the judge subsequently followed, the Court determined that the error was not harmless, and vacated Dominguez’s sentence and remanded the case.
Decided: July 7, 2015
The district court sentenced Gerson Arturo Aplicano-Oyuela (“Aplicano”) to sixteen months in prison and three years of supervised release for an illegal reentry offense that followed his removal from the United States after a felony conviction. Aplicano appealed and challenged his term of supervised release. The Fourth Circuit affirmed the district court’s sentencing.
In 2002, Aplicano illegally entered the United States from Honduras. In 2006, he plead guilty to second-degree assault in Maryland. Following his assault charge, Aplicano was removed to Honduras. Aplicano proceeded to once more illegally reenter the United States. After several arrest, Aplicano was indicted in 2013 and charged with illegal reentry under 8 U.S.C. § 1326. Aplicano submitted a plea letter to the district court and acknowledged the maximum sentence of illegal reentry, including supervised release for a period of three years. The district court sentenced Aplicano to sixteen months in prison and three years of supervised release. The court found the supervised release to be appropriate because of Aplicano’s history of illegal reentry and the court wanted to ensure that if Aplicano attempted to illegally reenter the United States, he would receive longer jail time.
Aplicano challenged his three-year term of supervised release on the grounds that it was procedurally and substantively unreasonable, and that his guilty plea was not knowingly and voluntarily entered because the court failed to advise him of the nature and consequences of supervised release. The Fourth Circuit addressed each of Aplicano’s challenges and reviewed the district court’s sentencing for plain error.
Accordingly, the Court found that there was no plain error by the district court in regards to the procedural reasonableness of the sentence because the district court was aware of the guidelines to supervised release, considered Aplicano’s specific circumstances, and determined that additional deterrence was required in this circumstance. Next, the Court addressed the substantive reasonableness of the supervised release. Taking into account the totality of the circumstances, the Court found the trial court’s intention to provide deterrence and protect the community to be substantively reasonable. Therefore, the Court found no error. Finally, the Court assessed whether the trial court failed to explain the nature and consequences of supervised release to Aplicano, in violation of Rule 11 of the Federal Rules of Criminal Procedure. The Court did not rule on whether a violation occurred, but instead held that the record failed to show that Aplicano would have refrained from pleading guilty but for the assumed Rule 11 error. As a result, Aplicano was unable to satisfy the third prong of the plain error analysis, that the error affected his substantial rights.
Consequently, the Court affirmed the district court’s sentence of Aplicano to sixteen months in prison and three years of supervised release.
Decided: June 16, 2015
The Fourth Circuit denied the petition for review.
This case stemmed from an original notice to appear to Maria Yanez-Marquez (“Yanez”) an alleged illegal immigrant who was summoned to a removal hearing to determine if she should remain in the country. At the hearing, Yanez moved to suppress evidence gained during a raid in which she claimed her Fourth Amendment rights were egregiously violated, her Fifth Amendment rights were violated, and Immigration and Customs Enforcement (“ICE”) agents failed to follow five federal regulations, relying on INS v. Lopez-Mendoza, a case that permitted the exclusionary rule in a civil removal proceeding where Fourth Amendment violations “were either widespread or egregious.” The Department of Homeland Security (“DHS”) argued that the exclusionary rule did not apply, and alternatively, that even if it did apply, Yanez failed to set forth a prima facie case, and that the ICE agents did not violate any regulations, and any violations were insufficient to require suppression. The Immigration Judge (“IJ”), although rejecting DHS’s argument that the exclusionary rule did not apply in removal proceedings, set forth what was required to make a prima facie case, and held that Yanez had not carried her burden, and denied the motion to suppress and to terminate. The Immigration Judge then found that the government had sustained its burden, and ordered Yanez removed from the United States, a decision that Yanez appealed to the Board of Immigration Appeals (“BIA”), who subsequently dismissed her appeal. Yanez then appealed that decision to this court.
The Fourth Circuit began by addressing the nature of its review, determining that it would review the BIA’s affirmation of the IJ’s decision as a final agency action, and would uphold it absent the decision being “manifestly contrary to the law and an abuse of discretion,” and then further determined the burdens of proof.
The Fourth Circuit then turned to the primary question of whether the ICE agents’ conduct violated the Fourth Amendment, and whether the exclusionary rule could apply in a civil removal action. This was followed by an extensive and in-depth examination of the Fourth Amendment doctrines and Rule 41 of the Federal Rules of Criminal Procedure. This included an in-depth discussion of the Lopez-Mendoza case that Yanez primarily relied upon in her appeals, and the court concluded that the exclusionary rule, although a remedy that could be available at a civil removal hearing, should nonetheless be used sparingly in order to prevent complicating the “simple” and “streamlined” deportation system. The Fourth Circuit held that the exclusionary rule could be used in cases where there were “egregious violations of the Fourth Amendment.” This meant that immigrants attempting to use the exclusionary rule had to satisfy a two-prong test: (1) whether the facts allege a violation of their Fourth Amendment rights, and (2) whether the facts allege that the violation was egregious. The court then examined the definition of what constituted an egregious violation, examining a variety of cases that had decided what constituted egregious. Although there are two circumstances in which evidence should be excluded, on the basis that its probative value is undermined by the activities of government agents or that the actions of government agents transgressed notions of fundamental fairness, the court concluded that in this case, only the fundamental fairness prong would be appropriate. To decide what violations transgressed notions of fundamental fairness, the court looked to the Ninth Circuit’s qualified immunity doctrine on the one hand and compared it to the Second, Third, and Eighth Circuits’ totality of the circumstances doctrine on the other hand, concluding that it would follow the totality of the circumstances line of cases and conducted an in-depth examination of the cases in those circuits.
The court then turned to address Yanez’s claims. First, the court examined Yanez’s contentions that the warrants failed the particularity requirements because they misidentified the type of home she lived in, that the agents should have stopped searching once they realized she lived in a multi-dwelling home, and that she should have been listed on the warrant as an item to be seized. However, the court concluded that the ICE agents had conducted a reasonable investigation that was not invalidated by the description in the warrant because their belief that the house Yanez dwelled in was a single-family dwelling was reasonable, and, furthermore, that the presence of a locked bedroom was unusual enough to have caused the agents to realize the home was a multi-family dwelling. The court then looked at Yanez’s claims that the time of the execution of the warrant violated her Fourth Amendment rights, in another exhaustive examination of the Fourth Amendment as well as an examination of Rule 41 of the Federal Rules of Criminal Procedure that implemented the protection against warrantless searches. Specifically, the court looked at the time requirements that warrants are normally executed in the daytime unless there is good cause for serving a warrant at night, and focused on the Third and Tenth Circuit decisions. The court also noted that the Attorney General had similarly concluded that a “daytime warrant does not convey authority to conduct a nighttime search,” and held that a “nighttime execution of a daytime warrant violates the Fourth Amendment, absent consent or exigent circumstances,” and listed several good cause factors that could be considered. However, the Fourth Circuit also held that such a violation was a Rule 41 violation and not a constitutional violation, meaning that a violation would result in suppression “only if the party seeking suppression suffered prejudice or the government intentionally violated the rule,” choosing to follow the reasoning from the Third and Tenth Circuits and the Supreme Court, and choosing not to follow the Second, Sixth, and Eighth Circuits. In applying this holding to Yanez’s case, the court found that the ICE agents had a daytime warrant that expressly rejected a nighttime search and that the agents violated that requirement, a violation that would be construed against the ICE agents. Although the court determined that the agents did indeed violate Yanez’s Fourth Amendment rights, an examination of whether that violation was egregious led the court to conclude that, despite the fact that the violation occurred in her home and during the night, the totality of the circumstances did not end in an egregious violation. Specifically, the court found that because the officers had a valid search warrant and no excessive force was used, determined by using the Fourth Amendment’s “reasonableness” standard, the violation did not rise to the level of egregiousness.
The Fourth Circuit then examined whether or not Yanez’s statements were involuntary and therefore used against her in violation of her rights under the Fifth Amendment. The court quickly disposed of this issue, however, and found that there was no evidence of involuntariness, and rejected her reliance on the Second Circuit case Singh v. Mukasey.
Finally, the Fourth Circuit examined Yanez’s claims that the ICE agents failed to follow five regulations, but again, quickly disposed of those arguments, and denied Yanez’s petition for review.
Decided: June 10, 2015
The Fourth Circuit held that the Board of Immigration Appeals (BIA) erred as a matter of law in concluding that Petitioner’s conviction of child abuse qualified as an aggravated felony, and vacated the order for Petitioner’s removal.
Petitioner entered the United States in 1980 as a lawful permanent resident. In 1990, he was convicted in a Maryland state court of child abuse, in violation of former Maryland Code, Article 27 §35A. In 2008, an immigration judge held that Amos was removable based on his felony conviction for sexual abuse of a minor. The BIA approved the immigrations judge’s order of removal. Amos appealed, but the BIA denied Petitioner’s motion for reconsideration. The question on appeal was whether Petitioner’s conviction, under the former Maryland statute, qualifies as the aggravated felony of “sexual abuse of a minor,” within the meaning of 8 U.S.C § 1101(a)(43)(A).
Petitioner contended that his Maryland conviction did not render him removable under 8 U.S.C § 1101(a)(43)(A), because “the conduct proscribed by the former Maryland statute is not encompassed within the generic federal offense of ‘sexual abuse of a minor.’” The Court was not persuaded by the BIA’s analysis that the failure to act to prevent child abuse is encompassed within the generic offense of “sexual abuse of a minor” in U.S.C § 1101(a)(43)(A). Accordingly, the Court vacated the order for Petitioner’s removal and granted his petitions for review.
Decided: May 14, 2015
The Fourth Circuit held that the statutory maximum term of imprisonment set by Congress, not the top sentence in the Sentencing Guidelines range, is determinative of whether a defendant committed a predicate felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii), affirming the district court’s order to impose a twelve-level sentence enhancement for Bercian-Flores’s earlier conviction.
This appeal follows Bercian-Flores’s 2012 conviction for being found in the United States following his removal subsequent to his commission of a felony in violation of 8 U.S.C. §§ 1326(a) and (b)(1). In 1997, Bercian-Flores had pled guilty to transporting an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), which had a statutory maximum punishment of five years imprisonment. However, the Guidelines range for his 1997 conviction under the Sentencing Guidelines, which were mandatory at the time, was zero to six months’ imprisonment. Bercian-Flores pled guilty to the 2012 charge, and the probation office prepared a presentence report, enhancing Bercian-Flores’s sentence based on his commission of a prior felony. Bercian-Flores argued that the Sentencing Guidelines should control, and that his 1997 charge should not be considered a felony for sentencing purposes. However, the district court disagreed and held that the statutory maximum sentence, not the Guidelines range, controlled. Thereafter, Bercian-Flores appealed.
On appeal, Bercian-Flores argued that the district court erred in imposing the sentence enhancement for a prior felony because his 1997 conviction was not punishable by a term of imprisonment exceeding one year. Specifically, Bercian-Flores argued that the district court did not have the authority to sentence him to more than six months for the 1997 conviction because the Guidelines range, which was mandatory in 1997, allowed for zero to six month term of imprisonment. The Fourth Circuit, however, determined that the district court could have imposed a sentence of up to 5 years because the statutory maximum sentence set by Congress, not the top sentence in the Guidelines range, is determinative of whether the prior conviction constitutes a predicate felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii).
Decided: April 30, 2015
The Fourth Circuit vacated a final order of removal entered by the Board of Immigration Appeals and remanded the case for further proceedings.
The appeal arose out of Hernandez’s and her son’s illegal entry into the United States in 2008. Within a month, the Government initiated deportation proceedings. While Hernandez stipulated to the facts in the deportation proceeding, she sought asylum under the Immigration and Naturalization Act. At her hearing before the immigration judge, Hernandez related that she had received three death threats from the Mara 18 gang in El Salvador, two of which were directly in response to Hernandez’s refusal to allow the gang to initiate her son into its membership. After the third threat, the gang told Hernandez she had one day to turn her son over, prompting her illegal entry to the United States. She testified that seeking protection from the El Salvadoran government was not an option because it routinely arrested and then quickly released gang members who then sought retaliation. The immigration judge found Hernandez to be generally credible but denied her request for asylum. The Board of Immigration Appeals later reached the same conclusion in a separate opinion.
The Fourth Circuit summarized the requirements for asylum as follows: (1) a well-founded fear of persecution (2) on account of a protected ground under the Immigration and Naturalization Act (3) perpetrated by an organization the applicant’s home country is unable or unwilling to control. While the immigration judge and Board of Immigration Appeals found that elements two and three were lacking, the Fourth Circuit disagreed. Regarding the second element, one recognized protected ground is membership in a particular social group, which includes a nuclear family unit. Here, the court found that Hernandez’s relation to her son was the reason she was threatened, rejecting the government’s argument that the threats resulted from gang recruitment and was not related to the nuclear family. The Fourth Circuit found that the fact that the boy’s mother was threatened and not anyone else heavily supported a finding that the threats were directly because of a family relation. Additionally, regarding the third element, while the government argued that the El Salvadoran’s government imprisonment of a gang member for unrelated crimes demonstrated they were willing and able to control the threat, the Fourth Circuit noted that the record provided no evidence for what motivated the imprisonment. Hernandez testified that reporting to the police would not really be an option, and the immigration judge found her credible. This testimony, coupled with a 2011 State Department Human Rights Report for El Salvador noting that El Salvador suffered from widespread gang influence and corruption, was sufficient to satisfy the third element. Thus, the Fourth Circuit vacated the Order and remanded for proceedings consistent with its opinion.
Kayla M. Porter
Decided: April 21, 2015
Ashton LeBlanc petitioned for a review of the denial of his motion to reopen the denial of an I-130 petition filed on behalf of his son, Robert LeBlanc. The court dismissed LeBlanc’s petition for lack of jurisdiction over the petition.
Ashton LeBlanc worked in Nigeria from 1968 to 1978 on off-shore oil rigs. While in Nigeria, he entered into a relationship, and his son, Robert LeBlanc, was born on September 6, 1970. Ashton left Nigeria in 1978. In 2001, Robert entered the United States to visit his father. During Robert’s visit, both Ashton and Robert decided that Robert should stay in the US. In 2002, Ashton’s attorney, Stuart Snyder, filed an I-130, which was denied in May 2007. Thereafter, Ashton and Robert remained in contact with Snyder about the appeal, and Snyder assured them everything was moving forward. Moreover, in 2011, Ashton contacted a second attorney to look into Robert’s citizenship status. Snyder assured the attorney that everything had been handled properly. However, upon hiring a third attorney in 2011, Ashton learned that Snyder had not been diligent in performing his duties. Thereafter, that attorney moved to reopen the denial of the I-130 petition with the Board of Immigration Appeals (BIA). The BIA denied the motion in November of 2013 because Ashton LeBlanc had not made a claim of ineffective assistance of counsel against the second attorney” and Ashton subsequently filed a petition for review.
The court determined that it lacked jurisdiction over Ashton LeBlanc’s petition for review. In the immigration context, the court’s jurisdiction is limited to reviewing a final order of removal. It was undisputed, however, that Robert was not and had never been in deportation proceedings. Thus, the court had no jurisdiction over Ashton’s petition for review because the petition for review was from Ashton’s denied motion to reopen his visa petition, not an order of removal against Robert.
Additionally, the court determined that 28 U.S.C. § 1631 did not apply to this case. This section provides that when a petition for review is filed in a court that lacks jurisdiction, “the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which . . . the action could have been brought at the time it was filed or noticed.” The court determined that the “interests of justice” did not require transfer because an I-130 could not have led to Robert gaining US citizenship. Thus, the court dismissed Ashton LeBlanc’s petition.
Decided: April 15, 2015
The Fourth Circuit held that North Carolina’s second-degree kidnapping statute constituted a “crime of violence” so as to justify a 16-level sentence enhancement pursuant to United States Sentencing Guidelines §2L1.2(b)(1)(A)(ii) for a prior conviction of a crime of violence. Accordingly, it affirmed the enhancement of Flores-Granados’s conviction of illegal reentry to the United States after deportation based on a prior second-degree kidnapping conviction in North Carolina.
Flores-Granados was convicted of two counts of second-degree kidnapping in North Carolina state court in 2007 and deported to Honduras thereafter. At some point before August 5, 2013, when he was arrested in Virginia for possession of a controlled substance and assault and battery, he reentered the United States illegally. Sometime afterwards, he pled guilty to a charge of illegal reentry. While the initial pre-sentence investigative report recommended only an 8-level enhancement for a previous conviction of an aggravated felony, the government argued, and the probation office agreed, that the prior kidnapping convictions constituted crimes of violence so as to warrant a 16-level sentence enhancement. The trial court agreed with the 16-level enhancement, noting that it did not accept the enhancement based merely on the title of the offense but on Flores-Granados’s use of a gun, threats, and a screwdriver to stab the victim, which illustrated that the crime was indeed one of violence.
While affirming the sentence enhancement, the Fourth Circuit held that the district court erred in referring to facts of the offense in enhancing Flores-Granados’s sentence rather than relying on a “categorical generic definition” of the offense to determine if the following elements were satisfied: (1) the unlawful restraint or confinement of another, (2) by force, threat, or deception (or, in the case of minors, without parental consent), and (3) either (a) for a specific nefarious purpose or (b) in a manner substantially interfering with the victim’s liberty. In defining these elements, the court relied on the United States Supreme Court’s test for a “violent felony” under the Armed Career Criminal Act, which adopts the “generic, contemporary meaning” of a crime. Comparing North Carolina’s statute with the MPC’s and other states’, the court held that North Carolina’s statutory framework was not broader than the generic meaning, particularly because it explicitly required nefarious intent. Given this requirement, the court held that all requisite elements had been met and upheld Flores-Granados’s sentence.
Kayla M. Porter
Decided: April 14, 2015
The Fourth Circuit held that 8 U.S.C. § 1229b(b)(1)(C) applies to both legal aliens and illegal aliens, and renders both ineligible for cancellation of removal from the United States when they have committed a crime of moral turpitude which falls under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or § 1227 (a)(3), even if the crime committed would otherwise fall under a petit-offense exception within those statutes. The Fourth Circuit thus upheld the Board of Immigration Appeals’s (“BIA”) denial of Marina Hernandez’s application for cancellation of removal from the United States.
Hernandez, a native and citizen of El Salvador, entered the United States illegally around 1997, and has lived in Virginia since then with her four U.S. citizen children. In 2001, Hernandez was given temporary protected status, which prevented her removal to El Salvador on the basis that return there would be unsafe. In January, 2007, Hernandez was convicted of petit-larceny under Virginia statute, and was sentenced to 30 days in jail. When she did not respond to a request for documentation concerning her criminal record, U.S. Citizenship and Immigration Services terminated her application for renewal of her protected status. In March, 2009, the U.S. Department of Homeland Security brought removal proceedings against Hernandez, who they argued was in the United States illegally. Hernandez conceded that she was removable, but filed an application for cancellation of removal under 8 U.S.C. § 1229b(b)(1), arguing that her removal would be a hardship on her children. The immigration judge pretermitted the application, finding that the petit-larceny conviction made Hernandez ineligible for cancellation of removal, and ordered Hernandez returned to El Salvador. Hernandez appealed to the BIA. The BIA dismissed her appeal, finding that Hernandez had conceded that petit-larceny was a crime of moral turpitude under 8 U.S.C. § 1227(a)(2), and finding that that the petit-offense exception to 8 U.S.C. § 1182(a)(2) did not apply to offenses described in 8 U.S.C. § 1227(a)(2), and that the offenses described in 8 U.S.C. §§ 1227(a)(2) and 1227(a)(3) applied to both legal and illegal aliens, including Hernandez. Hernandez appealed to the Fourth Circuit.
The Fourth Circuit first found that the BIA’s decision in this case, and in its prior case of Matter of Cortez Canales, 25 I. & N. Dec. 301 (2010), 2010 WL 3250517, were entitled to Chevron deference. In Cortez Canales, which the BIA relied on in deciding this case, the BIA found that 8 U.S.C. § 1229b(b)(1)(C) cross-referenced only the offenses listed in 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), and 1227(a)(3), not the substantive operation of the offenses. Thus, the BIA held in this case that because Hernandez committed the type of crime listed in 8 U.S.C. §1227 (a)(2), she was ineligible for cancellation of removal, even though substantively, the section did not apply to her, because it refers to aliens lawfully admitted, which Hernandez was not. The BIA further found that 8 U.S.C. §1227 (a)(2) did not allow for a petit-offense exception. The Fourth Circuit found that, while the BIA’s decision in this case was rendered by a single person, the BIA’s Cortez Canales decision, on which the instant decision relied, was rendered by a three judge panel, and thus both decisions were due Chevron deference, since both involved statutory construction by the agency charged with applying the statute. The Fourth Circuit then found, based on statutory language, that both unadmitted, and admitted but deportable, aliens can be ineligible for cancellation of removal for committing a crime of moral turpitude. The court argued that while its reading of 8 U.S.C. § 1229b(b)(1)(C) might not be the only reasonable reading, it was consistent with the BIA’s analysis in Cortez-Canales, which was due Chevron deference. On this basis, the Fourth Circuit upheld the BIA’s denial of Hernandez’s appeal, and denied her petition for review.
Katherine H. Flynn
Decided: October 17, 2014
The Fourth Circuit held that failure to register as a sex offender is not a crime of moral turpitude, and, therefore, the Board of Immigration Appeals (“BIA”) erred in relying on that conviction to initiate the petitioner’s removal. The Court reversed and remanded with instructions to vacate the petitioner’s order of removal.
The petitioner, Khalid Mohamed, born in Sudan and a lawful permanent resident of the United States as of 2003, pleaded guilty to sexual battery in Virginia in 2010. After he was convicted of failing to register as a sex offender in 2011, the Department of Homeland Security sought his removal under 8 U.S.C. § 1227(a)(2)(A)(ii), which deems an alien deportable after two convictions for crimes of moral turpitude. The petitioner sought cancellation of removal, claiming that failure to register as a sex offender was not a crime of moral turpitude; the immigration judge however denied his application. The BIA then denied the petitioner’s cancellation application and ordered his removal.
In determining that failure to register as a sex offender is not a crime of moral turpitude, the Court defined a crime of moral turpitude as one that “must involve conduct that not only violates a statute but also independently violates a moral norm.” The Court rejected the Government’s argument that because the purpose of the sex offender registration statute is to reduce the number of sex offenders that commit additional offenses, failure to register violates a moral norm. Instead, the Court concluded that the registration requirement is regulatory in nature and failure to register does not implicate any moral values. Accordingly, the Court held that the BIA erred in using the failure-to-register conviction as a basis for deportation pursuant to the federal alien deportation statute.
Amanda K. Reasoner
Decided: November 14, 2014
The Fourth Circuit held that the Board of Immigration Appeals (BIA) did not abuse its discretion when it refused to reopen the petitioner’s second motion to reopen his asylum claim because petitioner failed to provide sufficient evidence that Lin would be subject to China’s sterilization policies.
In 2007, the Department of Homeland Security initiated removal proceedings against the petitioner, Wanrong Lin, a Chinese citizen who entered the United States without inspection. At the time of the removal proceedings he was married to a U.S. citizen who was a Chinese native, and the couple had two children, both U.S. citizens. Lin applied for asylum on the grounds that due to China’s one-child family planning policy, he feared persecution, including forced sterilization, if he returned to China. An immigration judge (IJ) denied his application for asylum concluding that he did not find Lin’s testimony credible, nor his evidence sufficient to substantiate his claims that he would be tortured upon his return to China for having more than one child. The BIA denied Lin’s appeal. In 2010, Lin filed with the BIA to reopen his asylum claim on the grounds that he had new evidence that would show that conditions had changed in China since his previous application, and that he would face fines and sterilization if he returned. Lin also argued that the May 2007 Department of State Profile of Asylum Claims and Country Conditions on China (“2007 Profile”), which suggested that Lin was unlikely to experience the treatment he alleged, and on which the IJ and BIA relied, was unreliable. The BIA denied his motion to reopen. In 2012, Lin filed a second motion to reopen his asylum claim; again, the BIA denied his motion.
Generally, aliens are entitled to one motion to reopen an asylum claim. A petitioner can overcome this limitation when the motion to reopen is due to changed circumstances in the country to which the petitioner is to be deported. The evidence of the changed circumstances must be material and neither available nor discoverable at the time of the previous hearing. 8 C.F.R. § 1003.2(c)(2). For changed country conditions in China related to family planning policies, the BIA will only reopen an asylum claim when genuine, authentic, and objectively reasonable evidence proves that the country conditions changed; the applicant violated the family planning policies in place in the alien’s province or municipality; and the likely punishment for the violation would generate a well-founded fear of persecution. In re S-Y-G-, 24 I.N. Dec. 247, 251 (BIA 2007).
The Court relied upon four reasons for its conclusion that the BIA did not abuse its discretion in determining that Lin’s evidence did not support a finding that Lin would be subject to China’s sterilization policies. First, Lin failed to sufficiently authenticate many of the foreign documents he sought to introduce as evidence that he would be sterilized upon his return to China. Second, many of the documents he offered into evidence were previously available to him. Third, the documents that were new were immaterial because they filed to address Lin’s specific circumstances. Specifically, the evidence described the treatment of people in municipalities other than Lin’s; the treatment of women, rather than men; and the treatment of families in which all family members were Chinese citizens. Fourth, Lin failed to provide sufficient evidence to discredit the findings in the 2007 Profile. Accordingly, the Court denied Lin’s petition for review.
Amanda K. Reasoner
Decided: November 14, 2014
The Fourth Circuit denied Petitioner’s claim for review of the Board of Immigration Appeals’s (“BIA”) decision.
Petitioner (“Mulyani”) grew up as a Christian in Indonesia, which is a primarily Muslim country. Mulyani and her husband came to the U.S. in 2000 for vacation, and chose to stay in the U.S. when their vacation ended. Petitioner asserts that they would endure religious persecution if they were forced to return to Indonesia, describing several instances of religiously motivated violence she experienced during her youth because of her Christian faith. In September 2008, the Department of Homeland Security initiated removal proceedings against Mulyani. Petitioner conceded removability under the Immigration and Nationality Act (“INA”), but sought relief in the form of asylum by arguing that the Indonesian Government was indifferent, if not hostile, towards Christian rights. The immigration judge (IJ) denied all relief, and the BIA also concluded that she was not entitled to relief. Mulyani filed a petition with the Fourth Circuit for review.
The Fourth Circuit concluded that it lacked jurisdiction to consider whether Mulyani’s asylum application was untimely and qualified for an extraordinary circumstances exception to the one-year time limit because Congress has expressly restricted the Court’s power to review agency decisions that involve a time bar. Further, the Fourth Circuit found unpersuasive Mulyani’s argument that the Indonesian Government would be unwilling, or unable, to protect her from religious persecution, and that the BIA ruled in error on this issue. The Fourth Circuit stated that substantial evidence supported the BIA’s determination that Mulyani does not qualify as a “refugee,” and that Mulyani’s description of past experiences and articles recounting Christian persecution accompanying her application were insufficient to qualify her for asylum and withholding of removal. The Fourth Circuit also stated that Mulyani failed to offer any evidence that she was entitled to relief under the Convention Against Torture (CAT) because she failed to demonstrate that the Indonesian Government knows her identity or would harm her because of her Christian faith. Thus, Mulyani was not entitled to any relief.
Alysja S. Garansi
Decided: October 29, 2014
The Fourth Circuit reversed the Board of Immigration’s (“BIA”) decision to deny Xing Yang (“Yang”) relief from deportation. The Court held that the BIA erred by excluding evidence, and applied an incorrect legal standard, when it ruled that Yang was guilty of fraud and willful misrepresentation. The Court also held that Yang had not “abandoned his adjustment application by failing to submit updated biometric data[.]”
Yang, a native of China, came to the United States in early 1993. In March 1993, Yang applied for asylum and withholding of removal. Although a deportation order was entered against Yang in 1997, in 2004 his mother, a “lawful permanent resident” in the United States, successfully acquired an immigration visa for him. Meanwhile, in 2002, Yang’s deportation proceedings were reopened. In his revised application for relief, Yang sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). However, at a 2008 evidentiary hearing in front of an immigration judge (“IJ”), Yang and his mother provided testimony that was inconsistent with statements he made in his asylum application. The IJ subsequently ruled against Yang on all three grounds of relief, and also entered a credibility ruling against Yang based on the inconsistencies between his testimony and his application.
Yang appealed to the Board of Immigration Appeals (“BIA”), which subsequently remanded his case back to the IJ because of the immigration visa his mother had acquired. However, the IJ once again denied Yang a status adjustment, and ruled that Yang’s inconsistent testimony at the 2008 hearing amounted to “fraud and willful misrepresentation[,]” that he had not maintained “current biometric data[,]” and that he had insufficient income to qualify for the immigration visa. The BIA affirmed.
The Court reasoned that the BIA had committed legal error by affirming the IJ’s second ruling because the IJ had based its finding of fraud and willful misrepresentation solely on an earlier finding of “adverse credibility.” According to the Court, evidence of adverse credibility does not necessarily compel a finding of fraud and willful misrepresentation. Furthermore, Yang’s inconsistent testimony at the 2008 hearing was insufficient to constitute fraud and willful misrepresentation because the inconsistencies were immaterial to his asylum application.
Finally, the Court reasoned that Yang had not abandoned his adjustment application by failing to submit updated biometric data because he was legally entitled to be notified of his obligation to update this data but never received that notice. Therefore, the Court reversed the BIA’s decision and remanded his case for further review of Yang’s application for relief from deportation.
James Bull Sterling
Decided: July 30, 2014
The Fourth Circuit held that for cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), an illegal immigrant enters the United States free from restraint if a government agent first observes the immigrant miles after the immigrant has crossed into the U.S. Based on its holding, the Court granted a Guatemalan immigrant’s petition for review of the Board of Immigration Appeal’s (BIA) decision, and remanded his application for relief.
Appellant Oscar De Leon, a Guatemalan citizen, entered the United States illegally in 1988 and ultimately settled in Delaware. In 2003, upon returning from a trip to Latin America, a border patrol agent apprehended De Leon north of the Arizona-Mexico border. De Leon, who is married and has three United States-citizen children, applied for cancellation of removal under NACARA. Under section 203 of NACARA, illegal immigrants from Guatemala may apply for the special rule that allows cancellation of removal if they are able to meet the statutory requirements. One requirement is that individuals who enter the United States after December 31, 1990, must prove that they were not “apprehended at the time of entry.” 8 C.F.R. § 1240.619(a)(1). Entry, as defined by the BIA, requires (1) crossing into the United States, (2) admission into the country after inspection by an immigration officer, or intentional evasion of inspection, and (3) freedom from official restraint. In re Pierre, 14 I&N Dec. 467, 468 (BIA 1973). Freedom from restraint requires that the individual enjoy some amount of liberty after crossing into the United States prior to apprehension. An immigration judge (IJ) denied De Leon’s application, and found that De Leon failed to prove that he entered the country free from official restraint. As a result, the IJ ordered that De Leon be removed to Guatemala
The Fourth Circuit reasoned that the border patrol agent’s report stated that the agent first observed De Leon approximately twenty miles north of the Arizona-Mexico border, and that this fact satisfied De Leon’s burden of proof that he entered the county free from official restraint. The Court remanded the case to the BIA for application of the proper legal standard to De Leon’s application, and clarified that the Court had no opinion as to whether De Leon satisfied the additional requirements for NACARA eligibility.
Amanda K. Reasoner
Decided: July 18, 2014
In Cordova v. Holder, the Fourth Circuit granted Cordova’s petition for review, and remanded the case to the Board of Immigration Appeals (“BIA”) for further proceedings after concluding that the BIA had failed to provide an adequate basis for their legal conclusions.
Cordova, Petitioner, entered the United States without inspection in July 2010. Four months later the Government served Petitioner with a Notice to Appear on charges that he was an alien present in the U.S. in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner submitted an application for asylum. Petitioner testified that he was attacked and threatened on multiple occasions by two El Salvador gangs, MS-13 and Mara 18, who demanded that Petitioner either join either of their respective gangs, or pay for their protection. Petitioner further testified that he feared he would be killed after members of MS-13 saw him with his cousin, who was a member of Mara 18. Based on his familial ties to the Mara 18 gang member, Petitioner claimed membership in a “particular social group” for purposes of 8 U.S.C. § 1101(a)(42)(A). The Immigration Judge (“IJ”) denied Petitioner’s application for asylum and concluded that Petitioner was merely a person from El Salvador who had experienced problems with a gang. The IJ reasoned that Petitioner had not suffered past persecution, and that his fears did not amount to “fear based on a reasonable probability of future prosecution.” The BIA affirmed the IJ’s denial of asylum and withholding of removal because it concluded that Petitioner’s relationship to gang members was not a “social group.” Additionally, the BIA concluded that Petitioner had failed to demonstrate a nexus between the proposed social group and the threats he had received.
The Fourth Circuit rejected both of the BIA’s conclusions, and found that Petitioner had demonstrated that he was part of a family-based social group. First, the Court noted that Petitioner’s familial relationships were a central reason that MS-13 threatened to kill him. Petitioner’s cousin and uncle, both of whom were associated with Mara 18, were killed as a result of their association with Mara 18. The Court emphasized that even the BIA’s opinion stated that the motivation of the gang members who attacked Petitioner “was . . . retaliation for [his cousin and uncle’s] membership in a rival gang.” Reviewing the BIA’s opinion, the Court concluded that Petitioner had demonstrated a cognizable family-based social group, and that the BIA had failed to provide an adequate basis for concluding otherwise. Accordingly, the Court held that the “proper course with regard to nexus is to ‘remand to the agency for additional investigation or explanation.’”
Decided: March 17, 2014
The Fourth Circuit Court of Appeals denied in part and dismissed in part a Nicaraguan immigrant’s petition for review of the Board of Immigration’s finding that he was ineligible for cancellation of removal.
The Immigration and Nationality Act permits the Attorney General to cancel removal of aliens that have been physically present in the United States for a continuous period of not less than 10 years preceding the date of such application. Defendant Gustavo Urbina (“Urbina”) entered the United States on October 4, 2000, on a tourist visa and overstayed its expiration. In December 2009, the Department of Homeland Security (“DHS”) served Urbina with a notice to appear, charging him with having illegally entered the United States. This charge was based on Urbina’s own representations in applications for temporary protected status, asserting that he had entered the country in 1998. Before an Immigration Judge (“IJ”), Urbina asserted that, although he was not in the United States legally, he had entered legally in October 2000 and, therefore, the charge against him was incorrect. The IJ asked Urbina to file a copy of his passport showing his October 2000 entry. Urbina, in turn, requested that the government file an I-261 form at the next hearing, swapping the original charge on the notice to appear (illegal entry) for the factually correct charge (illegal presence). The DHS amended the charge, alleging that Urbina was removable as an alien who overstayed his period of authorized presence.
On appeal, Urbina argued that (1) the original notice to appear was invalid and thus did not stop the accrual of the ten-year statutory period; (2) the IJ erred in denying his motion to terminate and in continuing the proceedings to allow DHS to amend the charge against him; (3) the DHS did not have the authority to promulgate the regulation permitting such an amendment; (4) the IJ violated his procedural due process right; and (5) the BIA improperly denied his motion to reconsider.
First, Urbina contended that his original notice to appear was invalid because it had an incorrect charge and did not include the specific date and time of the hearing. However, the BIA in In re Camarillo held that the stop-time rule does not require that the notice to appear include the date and time of a hearing. Although Camarillo did not directly address whether its analysis would also apply to incorrect charges, the BIA in a footnote suggested that “there is no reason to conclude that Congress would have intended an alien to be able to accrue time between service of the notice to appear and service of an I-261, which may occur much later.”
Second, Urbina argued that the IJ improperly denied his motion to terminate the removal proceedings. However, in asking DHS to file the I-261 form, the IJ did precisely what Urbina had originally requested. Moreover, Urbina did not object to the IJ’s decision to continue the case.
Third, Urbina contended that the amended charge itself was invalid, based on the fact that the Immigration and Nationality Act clearly provides for changes to the time and date of proceedings on a notice to appear, but does not contain a similar provision for amending charges. However, the Fourth Circuit held that although the statute is silent regarding the amendment of charges, it is sensible to allow DHS discretion to make changes as it acquires more information.
Fourth, Urbina contended that the IJ violated his procedural due process right by pretermitting his application for cancellation of removal. He claimed there were “open factual issues” regarding his eligibility of relief: that is, whether the court should measure the ten years from Urbina’s purported January 1998 entry date, rather than the October 2000 entry. However, the Fourth Circuit concluded that it lacked jurisdiction to review the claim because Urbina failed to raise the question before the BIA.
Finally, Urbina asked that the Fourth Circuit reverse the BIA’s denial of his motion to reconsider. Urbina focused on the BIA’s claim that the inaccuracies in the original notice to appear were based upon Urbina’s fraudulent statements in his previous sworn applications for temporary protected status. Urbina argued that the BIA overstepped its authority by finding the statements “fraudulent,” as the IJ never made such a finding itself. The BIA’s decision, however, made clear that it relied on Camarillo as the primary basis for denying the motion for reconsideration.
– Sarah Bishop
Decided: February 5, 2014
On petition for review, the Fourth Circuit held that (1) the Board of Immigration Appeals’ (BIA) decision to deny Jin Xiu Li’s (Li) and Ai Hua Chen’s (Chen) (collectively, the petitioners) applications for political asylum and withholding of removal—based on their fear of involuntary sterilization pursuant to China’s one-child policy—was not supported by substantial evidence, and (2) that the BIA’s decision to deny the petitioners’ applications for religious asylum and withholding for removal—based on the petitioners’ fear of persecution for their Christian faith—was supported by substantial evidence. The Fourth Circuit therefore granted the petition for review in part and denied it in part.
Li and Chen are both natives of the Fujian Province in China. Li entered the United States without proper documentation in June 2001. The Department of Homeland Security (DHS) placed him in removal proceedings. Li applied for political and religious asylum; however, in 2003, an immigration judge denied the application. The BIA affirmed the decision of the immigration judge in 2005, but granted Li’s motion to reopen in 2010. Chen, on the other hand, entered the United States legally in January 2003. She entered the country on a nonimmigrant K-1 visa, 8 U.S.C. § 1101(a)(15)(K)(i), which “permits the foreign-citizen fiancée of an American citizen to travel to the United States to marry his or her citizen sponsor within ninety days of arrival.” Chen’s fiancé decided not to marry her, and Chen stayed in the United States after the ninety-day statutory period expired. Li met Chen in 2005 and married her in 2007. Chen gave birth to two children in 2007. She applied for political asylum in August of that year; however, as a result of her application, DHS commenced removal proceedings against her. These proceedings were consolidated with Li’s proceedings in 2011.
Li and Chen sought political and religious asylum. They claimed that Chinese officials would find them in violation of the one-child policy, and they would therefore be subject to “fines, imprisonment and involuntary sterilization” when they returned to their native country. With regard to religious asylum, Li and Chen asserted that, as practicing Christians, their beliefs would compel them to attend an illegal “house church” in China—which “would result in their arrest and detention,” as well as governmentally coerced renunciation of their ties with the church.
The immigration judge (IJ) found both petitioners to be credible witnesses with regard to their application for political asylum and related application for withholding for removal. However, he found that Li and Chen “failed to prove that their genuine fear of future persecution under the family-planning policy was objectively reasonable.” Citing a 2007 report by the State Department titled China: Profile of Asylum Claims and Country Conditions (the 2007 China Report), the IJ found that the petitioners did not prove they were in violation of the one-child policy; furthermore, even if Li and Chen were in violation of the one-child policy, they would only face fines or other economic penalties that fail to qualify as persecution. Though Li and Chen submitted contradictory evidence—including an affidavit from a man named Renzun Yuan, who said he was sterilized after his removal to the Fujian Province for violating the one-child policy “even though his children were born in the United States”—the IJ simply indicated that he found the 2007 China report “more persuasive.” Additionally, the petitioners submitted evidence that the IJ did not mention or simply ignored, including the governmentally issued 2009 Annual Report from the Congressional–Executive Commission on China (2009 CECC Report) and a screenshot of a website maintained by the family planning committee in Fuzhou City, Fujian (the family planning screenshot), containing a response to a question about “out-of-plan” children born to Chinese nationals in other countries; the committee responded that, in this situation, “sterilization is mandatory” for violators of the one-child policy. The BIA adopted and affirmed the decision below. The BIA noted evidentiary issues with certain items of contradictory evidence submitted by the petitioners. While the BIA also relied on the 2007 China Report, it did not mention the family planning screenshot or the 2009 CECC Report.
The IJ also found the petitioners to be credible witnesses with regard to their religious asylum application and related withholding of removal application. However, the IJ found that—despite the testamentary evidence to the contrary provided by Li, Chen, and their pastor Steven Chang—the petitions did not establish an objectively reasonable fear of future religious prosecution. The IJ relied on the 2007 China Report and the State Department’s 2010 International Religious Freedom Report in reaching this decision, which the BIA affirmed.
On appeal, the Fourth Circuit noted that, while State Department Country Reports are “highly probative evidence in a well-founded fear case,” Gonahasa v. U.S. INS, 181 F.3d 538, they are not to be treated “as Holy Writ,” Galina v. INS, 213 F.3d 955; furthermore, immigration judges and the BIA must provide their decisions “in terms sufficient to enable a reviewing court to perceive that they have heard and thought and not merely reacted,” Ayala v. U.S. Att’y Gen., 605 F.3d 941. The Fourth Circuit then found that the IJ and the BIA did not adequately account for the petitioners’ contradictory evidence; on remand, the Fourth Circuit ordered the BIA to account for the Renzun Yuan affidavit, the 2009 CECC Report, and the family planning screenshot.
However, with regard to the BIA’s decision on the application for religious asylum and withholding of removal, the Fourth Circuit found that Li and Chen’s evidence was “not so compelling that we cannot defer to the agency’s factual determinations.”
– Stephen Sutherland
Decided: January 27, 2014
The Fourth Circuit partially granted Julio Ernesto Martinez’s (“Martinez”) Petition for Review, finding that a group consisting of former MS-13 gang members constitutes a “particular social group” within the meaning of 8 U.S.C. § 1231(b)(3).
Martinez was born in San Miguel, El Salvador, in 1980. In 2000, he unlawfully entered the United States. When Martinez was stopped for a traffic offense in May 2011, the Department of Homeland Security initiated removal proceedings against Martinez. Martinez conceded that he was subject to removal, but sought relief on the ground that his life would be endangered should he return to El Salvador. At the hearing before the Immigration Judge (“IJ”), Martinez testified that his stepfather died when he was 12 and that soon after he befriended a group of older boys who had also lost family members. He later learned that some of the boys who had recruited him into this group were also associated with MS-13. After several members of MS-13 were deported from the United States and arrived in Martinez’s neighborhood, Martinez’s group was then “incorporated” into the larger MS-13 gang structure. This was, to some extent, involuntary. Upon being told that he had no option, Martinez, who was now 15, agreed to undergo MS-13’s initiation rite of a beating that lasts 13 seconds. Thereafter, the deportees killed the original leaders of Martinez’s group of friends and became the new gang leaders. They ordered him to get tattoos signifying his allegiance to MS-13. He did. They also ordered him to extort money from members of the community. He refused. Because of this, he was beaten on a weekly basis. Although he admitted to participating in one beating of another gang member, Martinez testified that thereafter he refused to join in those disciplinary beatings, which consequently subjected him to further beatings.
MS-13 held weekly meetings for its members. Martinez attended most of those meetings. When he did not attend, he was beaten. At the meetings, members were informed as to who had the “green light,” which indicated that the member was to be executed. A principal reason for receiving the “green light” was attempting to leave MS-13. Indeed, two of Martinez’s friends who attempted to leave the gang were killed. By the time Martinez turned 16, he became tired of the beatings and wished to leave MS-13. When he made this known, gang members beat him and stabbed him, leaving him for dead. Martinez survived, however, and, after leaving the hospital, went to live with a cousin about an hour south of San Miguel. Two months later, MS-13 members found him and shot at him from a car. Martinez was hospitalized again for several weeks. After recovering, Martinez went into hiding again. However, MS-13 members found him once more. This time, Martinez was able to escape without injury. Soon after, he fled to the United States and entered illegally. He believes that if he were to return to El Salvador, MS-13 members would kill him. Even while in the United States, he claims that he has refrained from going places where he might meet an MS-13 member, such as Spanish nightclubs.
Based on his fear of bodily harm at the hands of MS-13, Martinez sought several forms of relief from removal. He argued that under 8 U.S.C. § 1231(b)(3), he was eligible for withholding of removal because his life was threatened on account of his membership in the particular social group of former gang members from El Salvador. He also argued that he qualified for protection under the Convention Against Torture (“CAT”) because the Salvadoran government would acquiesce in his torture should he be removed. Finally, he applied for temporary protected status and, as an alternative, he requested voluntary departure. Following a hearing, the IJ found Martinez credible but nonetheless denied him all relief except his application for voluntary departure. The Board of Immigration Appeals (“BIA”) also rejected Martinez’s request for relief. This appeal followed.
On appeal, the Fourth Circuit first addressed Martinez’s challenge to the BIA’s determination that, for purposes of Section 1231(b)(3), “former members of a gang in El Salvador” are not a “particular social group” as that term is used in the statute, because members of the group do not have “a common, immutable characteristic where that characteristic results from voluntary association with a criminal gang.” Without applying Chevron deference, the court held that the BIA erred as a matter of law in its interpretation of the phrase “particular social group” by holding that former gang membership is not an immutable characteristic of a particular social group for purposes of the statute. In so holding, the Court distinguished between current and former gang members, finding that former MS-13 members shared an immutable characteristic. Next, the Court rejected Martinez’s contention that the BIA erred in rejecting his claim for protection under CAT, finding that the IJ and the BIA reviewed the relevant evidence before them in concluding that Martinez failed to make the necessary showing to warrant CAT protection. Thus, Martinez’s Petition for Review was granted in part, denied in part, and remanded for further proceedings.
-W. Ryan Nichols
Decided: January 16, 2014
The Fourth Circuit Court of Appeals vacated the Board of Immigration Appeals’ (“BIA”) order finding that a Tanzanian national who suffers from severe bipolar disorder was not a member of a social group, or persecuted for such membership, for asylum under the Immigration and Nationality Act (“INA”).
Tumaini Temu (“Temu”) first had a mental breakdown after his mother died in a car accident. Because of his behavior, Tanzanian officials took him to Muhimbili Hospital in Dar es Salaam, Tanzania, in 2003. In Tanzanian culture, severe mental illness with visibly erratic behavior is seen as a manifestation of demonic possession. Tanzanians even have a label for the group, “mwenda wazimu,” which means demon-possessed. The nurses at Muhimbili Hospital treated Temu with violence and abuse. When his condition worsened, his “treatment” became more inhumane. While binding and beating Temu with leather straps, the nurses said, “this is how we treat people who are mentally ill like you.” All prisoners were beaten, but Temu received worse beatings, and so did other prisoners who also suffered from severe mental illness.
Individuals qualify for asylum if they were persecuted on account of membership in a particular social group. On appeal, the Fourth Circuit addressed two questions: (1) whether Temu was persecuted because of membership in his proposed group and (2) whether Temu’s proposed group of “individuals with bipolar disorder who exhibit erratic behavior” qualifies as a “particular social group”.
Regarding the first question, the Fourth Circuit found that BIA’s conclusion that Temu was not persecuted because of membership in his proposed group was based on two logical contradictions that no rational fact finder could hold. First, it was impossible to square the BIA’s conclusion with the undisputed facts of the case. Nurses explicitly told Temu that “this is how we treat people who are mentally ill like you” and Temu was singled out for worse beatings, as were other prisoner with mental illness. Second, the BIA’s nexus finding and CAT finding were at logical loggerheads. The BIA concluded that Temu’s beatings were due to his erratic behavior, not his bipolar disorder per se. However, the IJ granted CAT relief, finding that Temu “was singled out for more frequent beatings because he was mentally ill.”
Regarding the second question about whether Temu’s proposed group qualified as a “particular social group,” the Fourth Circuit rejected the BIA’s conclusion that Temu’s proposed group did not qualify. The BIA has formulated a three-part test for a “particular social group:” (i) individuals share a common, immutable characteristic, (ii) the group has social visibility, and (iii) the group is defined with particularity.
Under the first-part of the test, the BIA improperly found no immutability, based on the fact that Temu’s erratic behavior could be controlled with medication. According to the Fourth Circuit, there is no cure for bipolar disorder. Therefore, Temu’s membership in his proposed group is not something he has the power to change. Further, the BIA itself has found that severe mental illness is immutable.
Next, the Fourth Circuit held that social visibility does not mean ocular visibility. Rather, it speaks to whether a group is in fact recognized as a group. The BIA found that while Tanzanian society unquestionably targets individuals who exhibit erratic behavior for serious forms of mistreatment, this mistreatment is not limited to those who have a diagnosis of bipolar disorder. Because the prosecutors used erratic behavior as an overbroad proxy for identifying victims, the persecutors did not view Temu’s proposed group as a group in the first place. However, the Fourth Circuit held this does not show that social visibility is lacking. Tanzanians still appear to view the “mwenda wazimu” as a group, and that is all that social visibility requires.
Finally, the BIA improperly concluded that Temu’s group lacked particularity, by breaking the proposed group into pieces and rejecting each piece, rather than analyzing his group as a whole. First, bipolar disorder is broad, covering a wide range of severity. Second, the definition of erratic behavior changes and has no precise, identifiable boundaries. However, Temu’s group is not “individuals with bipolar disorder” nor “individuals who exhibit erratic behavior.” Rather, Temu limits his group to those individuals with bipolar disorder who exhibit erratic behavior. Furthermore, the BIA itself has accepted individuals with bipolar disorder as a particular social group in the past.
– Sarah Bishop
Decided: January 14, 2014
On rehearing en banc, the Fourth Circuit held that the Maryland crime of resisting arrest, Md. Code, Crim. Law § 9-408(b)(1), does not categorically qualify as a “crime of violence” under U.S. Sentencing Guideline § 2L1.2 (the reentry Guideline). The Fourth Circuit therefore vacated the judgment of the United States District Court for the District of Maryland and remanded Marcel Aparicio–Soria’s (Aparicio–Soria) case for resentencing.
Aparicio–Soria pled guilty to a count of unlawful reentry of a deported alien subsequent to an aggravated felony conviction, under 8 U.S.C. §§ 1326(a) and (b)(2). At sentencing, the Government argued that Aparicio–Soria’s sentence should be enhanced pursuant to the reentry Guideline, which advises federal district judges to enhance the offense level of a defendant convicted of certain immigration offenses “if that defendant has a prior conviction for ‘a crime of violence,’” U.S.S.G. § 2L1.2(b)(1)(A). Specifically, the Government argued that Aparicio–Soria’s sentence should be enhanced pursuant to the “force clause” of the reentry Guideline—under which a state offense “that has as an element the use, attempted use, or threatened use of physical force against another” constitutes a crime of violence, U.S.S.G. § 2L1.2 cmt. N.1(B)(iii)—due to Aparicio–Soria’s prior conviction for resisting arrest in Maryland. The district court found that, under the categorical approach, Aparicio–Soria’s prior conviction did not constitute a crime of violence under the force clause; however, under the modified categorical approach, his prior conviction did constitute a crime of violence. Aparicio–Soria appealed.
The intervening precedent Descamps v. United States, 133 S. Ct. 2276, established that the district court erred in applying the modified categorical approach in this case. However, because the Fourth Circuit can “affirm the district court on any ground in the record, including those rejected by the district judge,” United States v. Moore, 7098 F.3d 287, the Government argued for affirmation of the judgment under the categorical approach.
The Fourth Circuit noted that, under the Supreme Court’s analogous reasoning in Johnson v. United States, 130 S. Ct. 1265, the term physical force means “violent force—that is, force capable of causing physical pain or injury to another person.” On the other hand—per the Maryland Court of Appeals case Nichols v. State, 44 A.3d 396—the force necessary for conviction under Maryland’s resisting arrest statute is the de minimis force constituting offensive touching. The Fourth Circuit also found the Government’s reliance on Rich v. State, 44 A.3d 1063, unavailing; found the cases United States v. Wardrick, 350 F.3d 446, and United States v. Jenkins, 631 F.3d 680, irrelevant to the case at hand; and rejected the Government’s focus on the “realistic probability” of a resisting arrest conviction based on something other than violent force, as the focus in the categorical analysis is on the “elements, not facts.”
– Stephen Sutherland
Decided: November 22, 2013
The Fourth Circuit held that the Immigration Judge and the Board of Immigration Appeals (collectively, the agency) had substantial evidence to support an adverse credibility determination against Qing Hua Lin (Lin) with regard to her applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT); that the agency had substantial evidence to support its determination that Lin failed to prove actual past persecution through independent evidence; and that the Immigration Judge did not violate Lin’s due process rights by permitting the Government to submit supplemental evidence after Lin’s initial merits hearing. The Fourth Circuit therefore denied Lin’s petition for review.
Lin, a native citizen of the People’s Republic of China (China), entered the United States illegally on August 19, 2009. The Department of Homeland Security subsequently commenced removal proceedings against Lin, charging her with removability “as an alien who, at the time of application for admission to the United States, was not in possession of valid entry documents.” 8 U.S.C. § 1182(a)(7)(A)(i)(I). In response to these charges, Lin applied for asylum, withholding of removal, and deferral of removal under the CAT. However, Lin made certain conflicting statements at different phases of the asylum process. For instance, in a previous interview with a Border Patrol Agent (the Border Patrol Interview), Lin told the Agent that, inter alia, she was not married; she had one child; she entered the United States “[t]o avoid population control regulations in China”; and she planned to have more children, but she would be forced to have an abortion or a tubal ligation if she became pregnant again. However, at a subsequent credible fear hearing, Lin asserted that, inter alia, she was married to a man who was currently residing in China with their son, and she left China because she was forced to have an unwanted abortion.
Also, in response to Lin’s application for asylum, the Government submitted a State Department report on China’s population control policies; the report “stated that the policies were no longer strictly enforced” and noted the paucity of reports of forced abortions or sterilizations in the relevant province in the preceding twenty-year period. Furthermore, during Lin’s initial merits hearing, the Immigration Judge asked Lin why she requested an abortion certificate after the forced abortion, and Lin changed her answer several times. Lin also had a second merits hearing after the Government requested that the court consider certain additional evidence—specifically, evidence from the Border Patrol interview that the Government’s attorneys discovered after the close of evidence. At the second merits hearing, Lin said she told the Border Patrol Agent she was not married due to a cultural misunderstanding; she also explained her failure to mention the forced abortion to the Agent in vague and nonresponsive answers, stating that, inter alia, the Agent told her not to provide details of her claim and she thought there was not room for detailed answers on the Agent’s form.
The Immigration Judge found that Lin was not credible “in light of the inconsistencies, implausibilities, and contradictions” in her testimony, application, and statements during the Border Patrol interview. The Judge also rejected Lin’s explanations for the inconsistencies and took issue with her failure to mention the forced abortion during the Border Patrol interview. Furthermore, the Judge found that the adverse credibility determination could not be overcome, as Lin had not provided sufficient evidence to independently prove past persecution in the form of a forced abortion. The Immigration Judge therefore denied Lin’s applications, ordering her removed to China. The Board of Immigration Appeals affirmed and adopted the Immigration Judge’s decision, and Lin appealed.
While the Fourth Circuit acknowledged concern with the agency’s unqualified reliance on statements made during “airport interviews”—such as Lin’s Border Patrol interview—the court also could not “countenance” Lin’s failure to mention the forced abortion during the Border Patrol interview, as this was “the very core of her claim.” The Fourth Circuit also found that Lin’s testimony regarding her marital status involved “a direct contradiction for which she was later unable to provide a believable explanation” and noted her “demeanor and non-responsiveness during questioning on certain topics.” With regard to the prospect of actual past persecution proven by independent evidence, the Fourth Circuit found that, inter alia, Lin’s abortion certificate was suspect due to Lin’s unreliable testimony, and that evidence from the State Department report countered certain evidence of the enforcement of family planning regulations. Lastly, with regard to any due process issues stemming from the Immigration Judge’s decision to allow the Government to submit supplemental evidence after the initial merits hearing, the Fourth Circuit noted the discretionary authority of Immigration Judges “to set and extend deadlines for the submission of evidence,” as well as Lin’s opportunity to explain her previous statements at the second merits hearings—which both parties had several months to prepare for.
– Stephen Sutherland
Decided: December 17, 2013
The Fourth Circuit Court of Appeals affirmed the district court’s denial of defendant’s application for asylum and withholding of removal based on his claim that government officials would sterilize him if he returned to China. The Fourth Circuit also affirmed the denial of his claim under the Convention Against Torture (“CAT”).
In November 2008, defendant Hui Pan (“Pan”) left his home in China for Baltimore, Maryland. He arrived in the United States without valid entry documents, and the Department of Homeland Security (“DHS”) detained him and conducted a credible fear interview. Pan claimed that, if he returned to China, family planning officials would forcibly sterilize him for violating China’s one-child policy. Pan and his wife already had one child when his wife became pregnant in November 2008 and was, according to Pan, forced to have an abortion. Pan stated that, following the abortion, officials found his wife was “not suitable” for sterilization and that Pan would have to be sterilized instead.
The Fourth Circuit reviewed the lower courts’ adverse credibility determination, regarding Pan’s testimony and corroborating documents, using the “substantial evidence” standard.
The Immigration and Nationality Act (the “INA”) authorizes the Secretary of Homeland Security or the Attorney general to confer asylum on any alien who establishes refugee status. An applicant for asylum may prove refugee status by showing either that they were subjected to past persecution or that they have a well-founded fear of future persecution on account of one of the enumerated grounds. Pan attempted to demonstrate a well-founded fear of future persecution—that family-planning officials would sterilize him if he were removed to China. The “well-founded fear of persecution” standard has both a subjective and objective component. The subjective part requires credible testimony demonstrating a genuine fear of persecution. The objective part requires specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution. A determination that the applicant’s testimony is not credible will generally defeat the subjective component. The Fourth Circuit concluded that the lower courts’ adverse credibility finding was supported by substantial evidence.
First, Pan’s testimony regarding why his wife could not be sterilized – resulting in the government’s decision to sterilize him – was vague and unclear. To corroborate his story, Pan offered a photocopy of a “Fujian Women and Children Health Center Disease Explanation Form,” which had an illegible signature and did not elaborate on his wife’s “skin disease” or explain the “operation” referenced. Next, Pan offered vague and inconsistent testimony regarding the circumstances of his flight from China to the United States. Pan’s testimony during his interview conflicted with statements on his asylum application. Even though Pan suggested these inconsistencies were due to a language barrier, the Fourth Circuit found Pan’s testimony not credible. Finally, the Fourth Circuit affirmed the lower courts’ conclusion that Pan’s corroborating documentation was unreliable and failed to rehabilitate Pan’s testimony. Pan failed to authenticate the documents by not making any attempt to establish how he acquired them or that they were genuine. Pan did not call his uncle as a witness to verify that he received the documents from China. In addition, the Fourth Circuit affirmed the lower courts’ conclusion that some of the documents were inherently unreliable. For example, the sterilization notice was a photocopy of an unsigned document allegedly issued by local officials. In addition, the disease explanation form did not legibly identify the doctor who purportedly created the form and set forth a confusing and vague description of the skin condition that rendered Pan’s wife unsuitable for sterilization. Finally, the Fuzhou Surgery Certificate, which purportedly established that an abortion was performed, conflicted with Pan’s testimony regarding how many months his wife was into her pregnancy when she had the abortion.
– Sarah Bishop
Decided: December 18, 2013
The Fourth Circuit held that Carlos Perez-Perez’s (“Perez-Perez”) prior conviction of indecent liberties with a minor, in violation of N.C. Gen. Stat. § 14-202.1, constituted a crime of violence, and warranted the the sixteen-level enhancement the district court imposed on him after he plead guilty to illegal reentry after deportation by an aggravated felon.
Perez-Perez, an illegal alien from Mexico, who was then twenty-four years old, had sex with a fifteen-year-old girl in 2001. He was charged with statutory rape in North Carolina, but pleaded guilty to taking indecent liberties with a minor and was subsequently deported. Perez-Perez unlawfully reentered the United States and was convicted in federal district court in Texas of reentry by an alien after deportation following an aggravated felony conviction. He was again deported to Mexico in 2004. After unlawfully reentering the United States yet again, Perez-Perez pleaded guilty in federal district court in North Carolina to illegal reentry after deportation by an aggravated felon. The district court concluded that Perez-Perez’s prior conviction for taking indecent liberties with a minor constituted a crime of violence and therefore applied the sixteen-level sentence enhancement, which raised Perez-Perez’s sentencing range from a range of one to seven months to a range of forty-six to fifty-seven months. Ultimately, Perez-Perez was sentenced to forty-six months.
On appeal, Perez-Perez contended that the district court erred in finding that his prior North Carolina conviction for taking indecent liberties with a minor qualifies categorically as sexual abuse of a minor, and thus as a crime of violence within the meaning of the reentry Guideline. In affirming the district court, the Fourth Circuit again held, as in Diaz-Ibarra, that a perpetrator can engage in conduct that constitutes sexual abuse when he is “in the actual or constructive presence of the minor.” The court further held that Perez-Perez’s argument, that Vann militates in favor of concluding that taking an indecent liberty with a minor is not a “crime of violence,” ultimately fails because accepting it would require the court to set aside prior precedent in Diaz-Ibarra. Accordingly, the court reaffirmed that a conviction for taking indecent liberties with a minor qualifies categorically as sexual abuse of a minor under Diaz-Ibarra and is therefore a crime of violence within the meaning of the reentry Guideline.
-W. Ryan Nichols
Decided: December 11, 2013
The Fourth Circuit held that the record contained sufficient evidence to trigger Nicolas Rene Pastora-Hernandez’s (“Pastora”) burden to prove that he did not engage in persecution in his home country, and agreed with the Board of Immigration Appeals (“BIA”) and the Immigration Judge (“IJ”) that Pastora failed to meet this burden.
Pastora, a native of El Salvador, entered the United States illegally in 1986. After being granted voluntary departure in 1988, he illegally reentered the United States in 1989. In 1991, Pastora applied for asylum. The Immigration and Naturalization Service (“INC”) granted him Temporary Protected Status, which expired in 1994. In 1995, Pastora again applied for asylum. In the 1995 application, Pastora indicated that he served in the civil patrol unit in his hometown as commandant. He also indicated that, as a result of his position, he was targeted by the guerrilla organization and therefore was forced to leave his country to flee persecution. In 1999, Pastora applied for special rule cancellation of removal under Section 203 NACARA. On that application, he stated that he would face the possibility of being punished for not supporting the civil war if removed to El Salvador. In 2006, an officer with the United State Citizenship and Immigration Services interviewed Pastora regarding his NACARA application. During that interview he indicated that he had volunteered in the civil patrol for three hours per week for twelve years. He also stated that he had carried a knife in connection with his volunteer duties and that the military would give them firearms for a short period of time while on duty. Following the interview, the officer informed Pastora that he appeared to be barred from relief under section 240A(c)(5) of the Immigration and Nationality Act because of his possible participation in persecution. In 2009, during an interview with a second asylum officer, Pastora reaffirmed his participation in the civil patrol; however, he described his rank as “cabo” rather than commandant. He further testified that he was given weapons training, but he denied ever engaging in combat or seeing anyone arrested, harmed, or taken prisoner.
In 2011, the IJ conducted a hearing during which he received documents submitted by the Department of Homeland Security detailing human rights violations in the communities in El Salvador where Pastora lived and patrolled. In addition, the IJ also admitted a memo explaining why Pastora was found to be ineligible for special rule cancellation of removal. At the hearing, Pastora testified that he was part of an organization that protected the local community against guerilla. However, when asked to explain his duties, his rank, his length of service, and whether he carried a weapon or received training, Pastora’s testimony conflicted with what he had previously told the asylum officers in his sworn statements. The IJ deemed Pastora barred from relief because he was unable to meet his burden of proof to show that the persecutor bar to relief under NACARA did not apply. Pastora subsequently appealed to the BIA. On appeal, the BIA determined that Pastora’s admitted participation in the civil patrol, coupled with the evidence of human rights violations that occurred during the time and in the place that Pastora patrolled, was sufficient to trigger Pastora’s burden to show that the persecutor bar should not apply. Finding that Pastora failed to show the inapplicability of the persecutor bar, the BIA dismissed the appeal. This appeal followed.
On appeal, the Fourth Circuit addressed Pastora’s contention that the IJ and the BIA incorrectly determined that the persecutor bar applied and thus erred in requiring him to prove by a preponderance of the evidence that he did not engage in persecution. Rejecting this contention, the court noted that the record contained Pastora’s sworn statements that he served as a leader in a local civil patrol for many years during the height of El Salvador’s civil war, and that numerous human rights abuses were committed by armed groups, such as Pastora’s, in the area and during the years that Pastora admitted to patrolling for his unit. Furthermore, the court noted that, in addition to assisting in persecution carried out by the military, the local patrols were, themselves, directly responsible for numerous human rights abuses.
-W. Ryan Nichols
Decided: December 11, 2013
The Fourth Circuit upheld the district court’s decision to deny the application of naturalization for Lakshmi Injeti, finding that she was never lawfully admitted for permanent residence based on misrepresentations about prior marriages contained on her application for permanent residency status.
Lakshmi Injeti is a native and a citizen of India who first entered the United States in 1991. In 2001, Injeti received the status of “lawful permanent resident.” She applied for naturalization in 2006. The United States Citizenship and Immigration Services (“USCIS”) denied her application, finding that although Injeti had been married twice, on her application for lawful permanent residence status, Injeti incorrectly stated that she had no former husbands. Furthermore, in connection with a separate proceeding, Injeti submitted a fraudulent death certificate of her first husband. Injeti appealed the USCIS’ decision to the district court. The district court granted summary judgment for USCIS. Injeti appealed to the Fourth Circuit.
To qualify for naturalization, an application must: (1) show that she was lawfully admitted for permanent residence, and (2) demonstrate good moral character. The Fourth Circuit affirmed the district court, finding that Injeti was not “lawfully admitted for permanent residence.” The Fourth Circuit explained that an immigrant is not “lawfully admitted” if “her admission, at the time it was granted, was ‘not in substantive compliance with the immigration laws.’” In this case, the court held that her status as a legal permanent resident was not “lawful.” First, she failed to indicate the identity of her former husband on her application for legal permanent residence status. Second, the death certificate of her former husband that Injeti filed was fraudulent. Injeti downplayed the importance of the misrepresentation, arguing that it was merely a mistake by her attorney in filling out the form. The court disagreed, however, finding that by getting remarried without a divorce to her first husband, Injeti committed bigamy, a crime of moral turpitude, which renders an alien inadmissible for legal permanent resident status. Because the Fourth Circuit found that Injeti was not “legally entitled” to receive legal permanent resident status, rendering her ineligible for naturalization, it did not examine whether her she demonstrated the requisite “good moral character.”
– Wesley B. Lambert
Decided: October 29, 2013
In a case of first impression, the Fourth Circuit held that the Fleuti doctrine did not survive the Illegal Immigration Reform and Immigrant Responsibility Act’s (“IIRIRA”) enactment of 8 U.S.C. § 1101(a)(13). Therefore, despite being a lawful permanent resident (“LPR”), the court found that Gurpinder Othi (“Othi”) was seeking admission into the United States and was, accordingly, subject to removal because of his criminal history.
Othi, a native and citizen of India, gained LPR status in 1983. In the 1990s Othi accumulated several criminal convictions: theft in 1995, possession of cannabis in 1997, and second-degree murder in 1999. After serving a 12-year prison sentence following his murder conviction, Othi travelled to India in early 2011 to get married. He returned there in December that same year to visit his new wife. On January 11, 2012, after 17 days outside the country, Othi returned to the US. Upon inspection at the airport, border agents obtained Othi’s criminal record and the Department of Homeland Security subsequently initiated removal proceedings against him on January 17, 2012. The Notice to Appear alleged that Othi was an arriving alien who was removable on three grounds: (1) his prior conviction for a crime of moral turpitude; (2) his prior conviction under a law relating to controlled substances; and (3) his prior convictions of two or more crimes having aggregate sentences of five years or more. Citing Rosenberg v. Fleuti, Othi argued that LPRs are permitted to take “innocent, causal, and brief” trips abroad without having to seek re-admission and therefore he was not an arriving alien because he never intended his trip abroad to meaningfully interrupt his permanent residence. The immigration judge, however, rejected Othi’s Fleuti-based argument and ordered removal. Othi appealed to the Board of Immigration Appeals (the “Board”), again arguing he was not an arriving alien pursuant to Fleuti. Additionally, Othi contended that removal violated his due process rights. The Board, however, found that Congress amended the IIRIRA provisions at issue in Fleuti and therefore LPRs who commit offenses like those committed by Othi are always treated as arriving aliens under the new statute. This appeal followed.
On appeal, the Fourth Circuit affirmed the Board’s decision and held that the plain text of the amended statute supplanted the Fleuti doctrine. In so holding, the court noted that all circuits considering the issue had reached the same result despite having done so in different ways. The court explained that LPRs are generally exempt from the statutory classification of all other “aliens” for purposes of an “admission” designation; however, Congress limited the LPR exemption in specific and clear terms. Relevant to this case, the general exemption from “admission” applies to all LPRs “unless the alien … has committed an [enumerated] offense.” The court therefore concluded that rather than benefiting from the general exemption granted to LPRs, Othi fell back into the general class of “aliens” who are treated as all other aliens for “admission” purposes. Next, the court summarily rejected Othi’s due process claim.
-W. Ryan Nichols
Decided: October 16, 2013
The Fourth Circuit denied Baltazar Olea Garcia’s petition for review of an order by the Board of Immigration Appeals (“BIA”) that rejected his application for cancellation of removal on the ground that he failed to meet the “continuous physical presence” requirement of 8 U.S.C. § 1229b.
In 1995, Mr. Garcia entered the United States illegally. In 2001, he returned back to his home country of Mexico to attend his father’s funeral and, when attempting to return to the United States, Immigration and Naturalization Service (“INS”) officers detained him. The INS officers fingerprinted and photographed Mr. Garcia and then offered him the opportunity to appear before an immigration judge. Mr. Garcia declined the opportunity and opted to return to Mexico voluntarily. He reentered the United States undetected several days later. In 2009, the Department of Homeland Security (“DHS”) initiated removal proceedings against Mr. Garcia, who conceded his removability, but filed an application for cancellation of that removal. The immigration judge concluded that Garcia was statutorily ineligible for cancellation because he was unable to show that he “continuously resided in the United States for the preceding ten years.” The immigration judge found that the US-VISIT report that was created in 2001 when Mr. Garcia was photographed and fingerprinted at the border crossing was sufficient to show that Mr. Garcia had been formally excluded from the United States, thus ending his continuous presence. Mr. Garcia appealed.
The Fourth Circuit explained that a removable alien, like Mr. Garcia, may petition the Attorney General for cancellation of removal pursuant to 8 U.S.C. § 1229b. In order to prevail, the petitioner must prove that he maintained a physical presence in the United States for a ten-year continuous period. In addition to the conditions set forth in the statute, the BIA has held that an alien’s continuous physical presence terminates when he voluntarily leaves the country under threat of removal. However, the BIA has also indicated that an alien’s departure is not disqualifying if the INS officers simply turn him away at the border because this type of encounter with INS officers is too informal to count as a departure under threat of removal. The Court first addressed Mr. Garcia’s challenge that the BIA’s policy on removal conflicts with the text of § 1229b. The Fourth Circuit employed the traditional Chevron review of agency interpretation and held that the BIA’s interpretation of “breaks in presence” requirement under the statute was reasonable. The Fourth Circuit then analyzed Mr. Garcia’s argument that the BIA erred in applying the holding of In re Romalze-Alcaide, 23 I. & N. Dec. 423 (BIA 2002), which provided that an alien’s continuous physical presence terminates when he voluntarily departs the United States under threat of removal. The Court explained that, under the established law, an alien’s departure only counts for severing physical presence in the country when the alien departs pursuant to a “formal, documented process.” Mr. Garcia argued that the evidence of his border encounter in 2001 was insufficient to establish his formal documented departure, which had the effect of rendering his return to Mexico ineffective in terminating his continuous physical presence in the United States. The Fourth Circuit disagreed and held that Mr. Garcia’s 2001 encounter with INS officers was formal enough and documented in such a matter as to render his decision to re-enter Mexico a voluntary departure under the threat of removal. Therefore, the Fourth Circuit denied Mr. Garcia’s petition.
– John G. Tamasitis
Decided: October 16, 2013
The Fourth Circuit denied Svetlana Kuusk’s untimely petition for review of a removal order by the Board of Immigration Appeals (“BIA”).
Svetlana Kuusk entered the United States in 2003 on a four-month visa, which she overstayed. When summoned for removal proceedings, Kuusk asked the Immigration Judge (“IJ”) to deny her removal based on asylum and withholding. The IJ denied her applications and Kuusk appealed to the Board of Immigration Appeals (“BIA”). While her appeal was pending with the BIA, Kuusk married a United States citizen. In a 2011 meeting with a United States Customs and Immigration Services (“USCIS”) officer, the officer informed Kuusk that she could file directly for a marriage based green card because her marriage to a United States citizen. Kuusk allegedly interpreted the advice of the USCIS officer to mean that she no longer needed to pursue her case before the BIA regarding the removal proceedings. After advising her attorney of her plans to pursue the marriage based green card, her attorney instructed her that she would still need to file a motion with the BIA to reopen her case within 90 days after the BIA’s final decision. The BIA denied her appeal based on her asylum and withholding. Kuusk neglected to file a timely motion to reopen the case. In March 2012, the USCIS denied Kuusk’s application for a green card based on her marriage because she subject to the earlier deportation order. Subsequently, Kuusk filed an untimely motion with the BIA to reopen her removal proceedings on the basis of equitable tolling. Kuusk argued that her motion was untimely because of her reliance on the USCIS officer’s allegedly incorrect advice. The BIA denied Kuusk’s motion to reopen her case, finding that she failed to show the necessary requirements for equitable tolling. Kuusk appealed the BIA’s decision to the Fourth Circuit.
On appeal, Kuusk first asserted that the BIA erred in applying the general standard for equitable tolling, arguing that a more lenient standard was required in the immigration context. The Fourth Circuit disagreed. The Fourth Circuit first held that the limitations period for filing a motion to reopen removal proceedings is subject to equitable tolling. Then, the court affirmed the standard used by the BIA. The BIA followed the general standard for equitable tolling articulated in Harris, in the context of a petition for a writ of habeas corpus. In Harris, the court held that equitable tolling was only proper when: “(1) the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant; or (2) extraordinary circumstances beyond plaintiff’s control made it impossible to file the claims on time.” The court conceded that the Harris standard was rigorous, but found that such a heavy burden was necessary to restrict equitable relief to those situations where “it would be unconscionable to enforce the limitation period against the party and gross injustice would result” by enforcing it. Furthermore, the court noted that other circuits similarly apply a general standard for equitable tolling for immigration proceedings. Thus, the court held that the BIA applied the appropriate standard.
Kuusk then argued that the BIA incorrectly applied the Harris standard to the facts of her case because the wrongful conduct of the USCIS officer prevented her from asserting her claim. The Fourth Circuit again disagreed. Kuusk contended that based on the advice of the USCIS officer, she believed that filing a motion to reopen her removal proceedings was unnecessary, triggering the first element of equitable tolling. The court found that Kuusk’s simple misunderstanding of the officer’s instructions was not enough to trigger the first element of Harris. Importantly, the court found that USCIS officer did not actually give Kuusk wrong advice. It was true that she needed to file directly for a green card; she needed to appeal the decision from the BIA as well. Furthermore, Kuusk’s attorney advised her of the need to appeal the BIA’s decision. Therefore, the court affirmed the BIA’s denial of Kuusk’s untimely petition for review.
– Wesley B. Lambert
Decided: July 23, 2013
The Fourth Circuit held that, under the Supremacy Clause, the Lowcountry Immigration Coalition (“the Coalition”) had an implied right of action allowing them to seek enjoinment of South Carolina’s Act 69 (“the Act”) on the grounds of federal preemption; that the United States District Court for the District of South Carolina properly chose not to abstain from hearing the case; and that the district court properly enjoined certain sections of the Act a in a pre-enforcement challenge. The Fourth Circuit therefore affirmed the decision of the district court.
The governor of South Carolina signed the Act in 2011, thereby approving certain state immigration laws and regulations. Subsections 4(A) and (C) provide that unlawfully present immigrants commit a state felony if, inter alia, they allow themselves to be either transported within the state, or to be harbored or concealed to avoid detection, with the intent to further their unlawful entry into the country or to avoid apprehension or detection. Under subsections 4(B) and 4(D), it is a state felony for a person to conduct the transportation or concealment offenses listed in Subsections 4(A) and (C). Under Section 5, it is a state misdemeanor for a person over seventeen years old to fail to carry certain alien registration materials issued to the person under 8 U.S.C. § 1304. Subsection 6(B)(2) forbids the display or possession of counterfeit or false identification “for the purpose of offering proof of the person’s lawful presence in the United States”; a first violation of this subsection is a misdemeanor, and a second violation is a felony.
The United States and the Lowcountry Immigration Coalition (“the Coalition”) challenged certain sections of the Act in two separate actions. The district court consolidated the cases, and found that Sections 4, 5, 6(B)(2), and other subsections of Section 6 were preempted by federal law. The district court issued a preliminary injunction, and South Carolina appealed. The Fourth Circuit remanded the case to the district court for reconsideration due to the Supreme Court’s decision in Arizona v. United States, 132 S. Ct. 2492. On remand, the district court let its injunction of Sections 4, 5, and 6(B)(2) stand, and dissolved its injunction of the other subsections of Section 6. On an interlocutory appeal to the Fourth Circuit, South Carolina argued that the Coalition did not have a right of action under the Supremacy Clause or 42 U.S.C. § 1983, citing Chief Justice Roberts’s dissent in Douglas v. Independent Living Center of Southern California, Inc., 132 S. Ct. 1204, as support for its Supremacy Clause argument; asserted that the district court should have abstained from hearing the case under Younger v. Harris, 401 U.S. 37; and challenged the district court’s preliminary injunction.
The Fourth Circuit found that the Douglas dissent did not disturb prior Supreme Court and circuit court holdings allowing parties to seek injunctive relief on the grounds of federal preemption. The Fourth Circuit also found Younger abstention inapplicable, as South Carolina had not actually commenced criminal proceedings under the Act. Lastly, the Fourth Circuit concluded that federal law preempted all of the disputed sections of the Act. The Fourth Circuit found that Subsections 4(A) and (C) criminalized mere unlawful presence, in contradiction of federal laws defining unlawful presence as a civil offense; that Subsections 4(B) and (D) infringed on a field occupied by the Immigration and Naturalization Act, which defines, inter alia, certain harboring and transportation offenses; that Section 5 infringed on the federal government’s regulation of alien registration; and that Subsection 6(B)(2) was preempted by both field preemption and conflict preemption, as Congress passed multiple laws regarding fraudulent immigration documents, and enforcement of these federal statutes would conflict with enforcement of Subsection 6(B)(2).
– Stephen Sutherland
Decided: June 12, 2013
The Fourth Circuit affirmed Appellant Al Sabahi’s conviction on four courts for knowingly possessing firearms while unlawfully present in the United States, in violation of 18 U.S.C. §§ 922(g)(5)(a) and 924(a)(2). Al Sabahi appealed alleging that (1) he was not illegally or unlawfully present in the United States; (2) the district court committed a Confrontation Clause violation; and (3) the evidence was insufficient to support his conviction.
Al Sabahi, a Yemeni citizen, entered the U.S. on November 12, 1997. His visa expired in May 1998. Al Sabahi remained in the U.S. after his visa expired. On January 10, 2003, he voluntarily registered with the National Security Entry-Exit Registration System (NSEERS). Immigrations and Customs Enforcement then placed Al Sabahi in removal proceedings for overstaying his visa. Al Sabahi married a U.S. citizen in August 2003. Thereafter, he filed an I-485 application to legalize his presence in the U.S. Al Sabahi worked at a convenience store in Littleton, North Carolina during the relevant time period. On February 15, 2007, a Pepsi employee went to the store to remove a Pepsi cooler. Al Sabahi placed a .9-millimeter pistol on the store’s counter during the visit and would not turn over the cooler. The Pepsi employee called his supervisor who came to the store, saw the gun, realized Al Sabahi would not release the cooler, and called the chief of the Littleton Police Department. Two months later, Al Sabahi was stopped at a traffic checkpoint – conducted by the police chief and other officers – while driving a gold Toyota Camry. The car belonged to Ali Saleh, the owner of the convenience store, but Al Sabahi frequently borrowed it. An officer saw part of a pistol grip on the car’s floorboard. A .9-millimeter pistol was retrieved from the vehicle. The police chief instructed that Al Sabahi be charged with carrying a concealed weapon. On May 9, 2007, another individual went to the convenience store to sell a .380 caliber handgun to Al Saleh. Saleh was not present at the store. Al Sabahi took cash from the register and purchased the firearm. The seller wrote a receipt in Al Sabahi’s name. When Saleh learned Al Sabahi had bought the gun, he informed the seller that Al Sabahi was an illegal and should not have purchased the gun. Lee later prepared a second receipt naming Saleh as the purchaser. Saleh testified that, on September 7, 2007, he went home and found Al Sabahi drunk, carrying the .380 caliber handgun and claiming it belonged to him. Al Sabahi then left with the firearm. Saleh reported the theft to the police. The police retrieved the firearm from one of Saleh’s relatives. These four incidents made up the facts of the four specific counts leveled against Al Sabahi. A jur convicted Al Sabahi on all counts.
The court first addressed Al Sabahi’s argument that the district court improperly found he was unlawfully present in the U.S. The court noted that federal regulations recognize that illegal aliens include nonimmigrants whose authorized period of stay has expired. The court cited case law for the proposition that an alien becomes unlawfully present in the U.S., for the purposes of the statute, upon commission of a status violation. Moreover, the court cited case law indicating that an alien who has acquired unlawful or illegal status cannot relinquish that status until his application for adjustment of status is approved. The court concluded Al Sabahi was unlawfully in the United States at the time he possessed the firearms in question, since he remained in the country after his visa expired and his request for adjustment of status has not been approved. Al Sabahi argued that he was “in effect ‘paroled’ via 8 U.S.C. §1182(d) when he registered through NSEERS, since federal regulations provide that aliens are not unlawfully in the United States if they are in valid parole status. The court noted that parole is only granted to aliens who have not yet entered the U.S. Also, the court observed that the U.S. Code authorizes the Attorney General to parole aliens into the United States temporarily for urgent humanitarian reasons or significant public benefit. The court rejected Al Sabahi’s argument after finding that he was already present in the U.S. when registering with NSEERS, and that he had not shown any humanitarian reasons or significant public benefit warranting his parole. Al Sabahi also argued that he was not illegally in the United States due to his I-485 application and cited a Tenth Circuit decision suggesting, in dicta, that a defendant who received a pistol after filing an amnesty application would not be illegally in the U.S. for purposes of the statute. The court noted that while some courts had favorably cited the dicta, the Fourth Circuit has held “that the mere filing of an application for adjustment of status does not legalize the alien’s presence in the United States, and it is still a crime under § 922(g)(5), for that individual to possess a firearm.”
For this reason, the court found Al Sabahi’s argument lacked support and concluded that the pendency of his application did not alter his unlawful status at the time he possessed the firearms.
Al Sabahi also contended that the district court erred in allowing the case to proceed without waiting for an immigration judge to decide whether Al Sahabi was removable. Al Sabahi cited 8 U.S.C. § 1229(a)(1), which states: “[a]n immigration judge shall conduct proceedings for deciding the admissibility or deportability of an alien.” However, the court stated that this provision does not divest district courts of the ability to decide whether aliens are unlawfully present for purposes of the statute. Therefore, the court determined that Al Sabahi’s argument lacked merit.
In addition, Al Sabahi contended that the district court violated his Confrontation Clause rights by not allowing his counsel to question government witness regarding his pending I-485 application and NSEERS participation. The district court permitted cross-examination of the witness, but declined to permit questioning on NSEERS and the I-485 application on the basis that it was irrelevant. The court declined to find any Sixth Amendment violation, since Al Sabah was permitted to cross-examine and had given no reason how this exclusion of testimony violated his confrontation right.
Lastly, Al Sabahi contended that the evidence was insufficient to support the jury verdict. The court held that the substantial evidence supported the jury’s verdict for each conviction.
– A. Hadden Lucas
Date Decided: May 13, 2013
The Fourth Circuit vacated the Board of Immigration Appeals’ (BIA) final order of removal of Ali Sina Karimi with instructions to reinstate Karimi’s asylee status.
Karimi is a citizen of Afghanistan who entered the United States in 1990. Karimi was granted asylum in 1999. In October of 2007, Karimi was arrested in Maryland for driving under the influence of alcohol. When the arresting officer admitted Karimi to prison, Karimi became “belligerent and somewhat out of control.” The arresting officer claims to have laid her hand down next to Karimi and told him to quiet down. Then, the officer alleges, that Karimi grabbed the officer’s hand, spat on her arm, and acted as if he was going to strike her. As a result of the incident, Karimi pled guilty to driving under the influence and to a misdemeanor second-degree assault for the altercation with the officer. Karimi served four months in prison. In 2008 the Department of Homeland Security moved to terminate Karimi’s asylum on the basis that he was convicted of a “crime of violence” that qualified as an aggravated felony. In January 2009, an Immigration Judge held that the second-degree assault conviction was an aggravated felony and terminated his asylee status. Karimi’s filed a motion to reconsider, which was denied. Karimi then appealed to the BIA, challenging the ruling that the second-degree assault conviction was an aggravated felony. The BIA dismissed the appeal finding that Karimi was convicted of a “crime of violence.”
On appeal, Karimi argued that the BIA erred in determining that his second-degree assault conviction was a “crime of violence.” The Fourth Circuit agreed. A “crime of violence” is defined in the United States Code as either, “an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another,” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person property of another may be used in the course of committing the offense.” There are two approaches to determining whether a conviction was a crime of violence. First, courts generally follow the “categorical approach” that examines the statutory definition of the crime charged and the fact of conviction to determine whether the defendant’s conviction was a crime of violence. Second, where the crime under which the defendant was convicted has phrases that may or may not constitute violence, courts follow a “modified categorical approach” that allows the court to consider, in addition to the statutory elements of the crime charged, the terms of a charging document, a plea agreement, a transcript of colloquy between judge and defendant or other judicial record that reveals the “factual basis for the plea.” The court held that under either approach, the BIA erred in determining that Karimi committed an aggravated felony. The court concluded that Karimi prevailed under the categorical approach because the second-degree assault statute encompasses both violent and nonviolent touching. In addition, Karimi prevails under the modified categorical approach because “grabbing” the officer’s hand was the only conduct which Karimi admitted to, and “grabbing” in and of itself did not rise to the level of physical force necessary to constitute a crime of violence. Therefore, the Fourth Circuit held that Karimi’s second-degree assault conviction did not qualify as a “crime of violence” and remanded to the BIA with instructions to reinstate Karimi’s asylee status.
– Wesley B. Lambert
Decided: April 24, 2013
The Fourth Circuit affirmed the Board of Immigration Appeals’ (BIA) denial of Suarez-Valenzuela’s application for withholding of removal under the Convention Against Torture (CAT). The Fourth Circuit held that the BIA applied the appropriate standard when evaluating Suarez-Valenzuela’s case, and that the BIA’s conclusions were supported by substantial evidence.
Suarez-Valenzuela is a Peruvian citizen that illegally entered the United States in January of 1999. Suarez-Valenzuela left Peru following a series of altercations and threats stemming from a talk show appearance in 1997. Suarez-Valenzuela and the show’s investigator threatened to report the show’s host to a rival television network when Suarez-Valenzuela did not receive items that he was promised in exchange for his appearance. Shortly thereafter, uniformed police officers approached Suarez-Valenzuela and the show’s investigator and threatened them. One of the officers, who Suarez-Valenzuela recognized as working for the talk show host, shot him in the foot and hit the show’s investigator with a gun, killing the investigator instantly. Although the officer was convicted for the killing, he only served three months of a fifteen-year sentence. Subsequently, the officer retained his job with the police and continued intimidating Suarez-Valenzuela and his family. Fearing for his safety, Suarez-Valenzuela fled to the United States in January of 1999. In February 2010, Suarez-Valenzuela was convicted of misdemeanor petit larceny. Based on the conviction and his immigration status, the Department of Homeland Security (DHS) issued an Administrative Order of Removal. DHS referred Suarez-Valenzuela’s case to an immigration judge who found that, under CAT, it was not feasible for Suarez-Valenzuela to relocate to Peru because Suarez-Valenzuela reasonably feared that he would be subjected to torture. DHS appealed the immigration judge’s order to the Board of Immigration Appeals (BIA), who reversed the immigration judge. Suarez-Valenzuela filed a petition for review of the BIA Order.
On appeal, Suarez-Valenzuela first argued that the BIA wrongfully applied the “willful acceptance” rather than the “willful blindness” standard to satisfy the CAT requirement that torture is committed with the “acquiescence of a public official.” Under the “willful acceptance” standard, the applicant must demonstrate that government officials had actual knowledge of his or her torture to satisfy CAT. On the other hand, under the “willful blindness” standard the applicant satisfies the acquiescence requirement by showing actual knowledge or that government officials “turn a blind eye to torture.” The Fourth Circuit agreed with Suarez-Valenzuela that “willful blindness” could satisfy CAT’s acquiescence requirement, but held that the BIA did not impose the actual knowledge requirement of the “willful acceptance” standard as argued by Suarez-Valenzuela.
Suarez-Valenzuela’s next argued that the BIA’s denial of CAT protection was not supported by substantial evidence. The Fourth Circuit disagreed. The Fourth Circuit first concluded that the BIA reasonably relied on State Department reports showing that country conditions and human rights violations have improved in Peru. Next, the Court found that BIA was justified in finding that the Peruvian government did not acquiesce to any torture committed by the officer. The Court determined that based on the officer’s considerable efforts to prevent Suarez-Valenzuela from testifying and the officer’s ultimate conviction, the BIA could reasonably conclude that the government did not acquiesce in Suarez-Valenzuela’s past torture. Finally, the Fourth Circuit concluded that Suarez-Valenzuela failed to appeal the final determination that he could safely relocate within Peru, waiving his right to challenge the BIA’s determination on that ground. Therefore, the Fourth Circuit affirmed the BIA’s denial of Suarez-Valenzuela’s petition for review.
– Wesley B. Lambert
Decided: December 14, 2012
Defendant Nicolas Carpio-Leon, an illegal alien “indicted for possessing firearms while being ‘illegally or unlawfully in the United States,’” appealed his guilty plea based on his contention that 18 U.S.C. § 922(g)(5), which prohibits illegal aliens from possessing firearms, violated his rights under the Second and Fifth Amendments to the U.S. Constitution. The Fourth Circuit ultimately held § 922(g)(5) to be constitutional and affirmed the district court’s judgment.
On appeal, Carpio-Leon made two arguments. First, he contended “that possession of firearms typically used for self-defense in one’s home is protected by the Second Amendment, even when such possession is by an illegal alien.” After recognizing that it had “not had occasion to address a Second Amendment challenge to 18 U.S.C. § 922(g)(5),” the court noted that three other circuits “have upheld the provision in the face of a Second Amendment challenge.” The court further noted that it had “found no court of appeals decision that has found [the provision] unconstitutional.” The court then engaged in a Second Amendment analysis prescribed by Heller and applied the two-step approach set forth in its 2010 decision in United States v. Chester.
Applying the first step, the court looked to determine “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee” by deciding “whether the scope of the Second Amendment includes the protection of aliens who are illegally in this country.” The court focused on the text of the Second Amendment, specifically the language protecting the rights of “the people,” but it found that the Supreme Court’s decision in Heller provided little help in determining “whether ‘the people’ includes illegal aliens.” Despite the lack of clear precedent on this matter, the court found that “Heller concludes … that the core right historically protected by the Second Amendment is the right of self-defense by ‘‘law-abiding, responsible citizens,’’” and therefore it determined that it did not need to determine the scope of “the people” under the Second Amendment. Finally, the court employed a historical analysis and ultimately held “that illegal aliens do not fall in the class of persons who are classified as law-abiding members of the political community for the purpose of defining the Second Amendment’s scope.” The court was careful to limit its holding by making it clear that it did “not hold that any person committing any crime automatically loses the protection of the Second Amendment.” Based on this holding, the court determined that it did not need to proceed to the second step provided in Chester because under the first step it “conclude[d] that Carpio-Leon’s constitutional challenge under the Second Amendment must fail.”
Next, the court considered Carpio-Leon’s second argument on appeal that § 922(g)(5) “violate[d] his right to equal protection under the Due Process Clause of the Fifth Amendment.” Carpio-Leon based this argument “on his claim that the right to bear arms in one’s home for protection is a fundamental constitutional right” such that the court should apply strict scrutiny in evaluating § 922(g)(5). The government, on the other hand, argued that this statute “is subject to a rational basis review because illegal aliens do not have a fundamental right to bear arms.” The court agreed with the government, finding that “no fundamental constitutional right is at stake, [and] the appropriate standard of review is the rational-basis review.” Under this analysis, the court determined that Carpio-Leon “[could] not show that there is no rational relationship between prohibiting illegal aliens from bearing firearms and the legitimate government goal of public safety” and concluded that § 922(g)(5) “survives rational scrutiny and is, therefore, also constitutional under the Fifth Amendment.”
– Allison Hite
Decided: December 13, 2012
The Fourth Circuit Court of Appeals vacated the judgment of the district court ruling that the defendant’s previous state conviction of a criminal threat was a “prior crime of violence,” justifying an enhancement of his sentence. The court remanded the case for resentencing consistent with the opinion
Jesus Miguel-Torres plead guilty to one count of illegal reentry by and aggravated felon, in violation of 8 United States Code Sections 1326(a) and 1326(b)(2) (2006). Torres-Miguel had a prior conviction under California Penal Code Section 422(a), which made it a felony to willfully threaten to commit a crime that would result in death or bodily injury. There were no facts with regards to the prior conviction. Because of this conviction, Torres-Miguel’s probation officer recommended in the presentencing report (“PSR”) a sixteen-level increase to Miguel’s base offense level. The district court determined that Torres-Miguel’s threat conviction categorically constituted a crime of violence, justifying sentence enhancement under the United States Sentencing Guidelines. This enhancement increased Torres-Miguel’s Guidelines sentencing range from fifteen to twenty-one months to fifty-seven to seventy-one months. The PSR miscalculated lower end of the enhanced range, which should have been fifty-one months. The district court then sentenced Torres-Miguel to fifty-one months. From that sentence, Torres-Miguel appealed.
The Fourth Circuit reviewed de novo the question of whether the prior threat conviction constituted a prior crime of violence requiring sentence enhancement under the Guidelines. To answer all questions regarding predicate crimes of violence, the Court follows a categorical approach, which “look[s] only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies as a ‘crime of violence’.” The Guidelines define a prior crime of violence as “any other offense . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another. When looking at the California statute, the Court concluded that no part of the statue necessarily includes the use or threatened use of physical force to accomplish the result. A person could threaten a crime that results in death or bodily injury without threatening to use physical force. While this would be a violation of 422(a), it would not qualify for enhancement under the Guidelines. For this reason, the Court held that Torres-Miguel’s sixteen-level enhancement could not stand.
-Jonathan M. Riddle
Decided: November 19, 2012
The Fourth Circuit denied Adriano de Almeida Viegas’s petition for review of the Board of Immigration Appeals’ (“BIA”) denial of Viagas’s petition to obtain relief from removal under the Immigration and Nationality Act (“INA”). For the reasons discussed below, the court concluded “that the BIA did not err in deeming Viegas statutorily ineligible for asylum and withholding of removal under the INA’s Material Support Bar.”
In this case, Viegas, a native and citizen of the Republic of Angola who entered the United States in 2005 using a fraudulent French passport, argued that the BIA and Immigration Judge erred in finding that the Front for the Liberation of the Enclave of Cabinda (“FLEC”), an organization that Viegas belonged to, is a terrorist organization. Additionally, Viegas argued that his financial contributions to the FLEC did not qualify as “material” support for the organization. In reviewing Viegas’s petition, the Fourth Circuit applied a highly deferential standard to its review of the decisions made by the BIA and Immigration Judge.
The Fourth Circuit first addressed the INA’s requirement that DHS present evidence that the organization that Viegas was a member of, the FLEC, qualifies as a terrorist organization. Because the court found that DHS presented sufficient evidence establishing that the FLEC qualifies as a terrorist organization under the INA, and because there was no dispute that Viegas was a member of at least a part of the FLEC, the court concluded that the BIA and Immigration Judge did not error in their burden of proof determinations.
Next, Viegas argued that because he knew nothing about the activities carried out by the faction of the FLEC to which he belonged, the INA’s “Material Support Bar” should not apply to make him ineligible for asylum or withholding of removal. This bar prohibits aliens who provide material support to terrorist organization “from receiving various forms of relief from removal.” Viegas relied on a provision in the INA stating that this bar “does not apply if the alien ‘can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.’” The court found Viegas’s claim that he lacked information about his faction’s activities to be unpersuasive and concluded that even if Viegas did not know that he belonged to a terrorist organization, “substantial evidence indicates that Viegas reasonably should have known that the organization he belonged to engaged in terrorist activities.” Thus, the court determined that actual knowledge of the terrorist activities is not required in order to apply the Material Support Bar.
Viegas then turned to his personal involvement in the FLEC and argued that “the BIA erred in concluding that his activities constituted material support under the INA.” He claimed that his activities “were insignificant and not the type of support that advances terrorism” such that they would qualify as “material support” of the organization. The court rejected this argument and found that Viegas’s voluntary monthly payments of dues to the FLEC, and his voluntary choice to hang posters for the FLEC, constituted sufficient support of the FLEC such that the BIA’s material support determination was not arbitrary and capricious.
Finally, the court addressed Viegas’s assertion “that the mandatory bar for membership in a terrorist organization should not apply because he is no longer a member of the FLEC.” While noting that this statutory “bar does not apply to aliens who are no longer members of terrorist organizations,” the court found that any error made by the BIA or Immigration Judge on this matter would amount to harmless error because “the Material Support Bar is an independently sufficient ground for denying Viegas relief.”
– Allison Hite
Decided: November 9, 2012
Martin Mendoza Leiba (“Mendoza”) petitioned the Fourth Circuit Court of Appeals to review a decision by the Board of Immigration Appeals (the “Board”). The Board affirmed the ruling of an immigration judge (“IJ”) granting the Department of Homeland Security’s (DHS) motion to pretermit Mendoza’s applications for adjustment of immigration status and for a waiver pursuant to Immigration and Nationality Act (“INA”) § 212(h). The court granted Mendoza’s petition for review.
Mendoza, a native of El Salvador, entered the United States illegally. However, after marrying, Mendoza adjusted his status to that of a lawful permanent resident (“LPR”) in 1995. In 2008, Mendoza was convicted in Virginia state court of receiving stolen property. The DHS sought to deport Menodza pursuant to a federal statute that allows deportation when an alien is convicted of a felony that includes a prison term of at least one year. To avoid deportation, Mendoza filed an application for an adjustment of status and a waiver under INA § 212(h). The DHS then moved to pretermit Mendoza’s application on the ground that his conviction rendered him ineligible for a § 212(h) waiver. The IJ agreed with the DHS and ruled that that an alien convicted of an aggravated felony after obtaining LPR status is ineligible for a § 212(h) waiver. Therefore, the IJ ordered Mendoza’s deportation El Salvador. The Board affirmed the IJ’s decision.
The Court of Appeals explained that the central issue in the case was the interpretation of INA §212(h). Under that section, the Attorney General can grant a waiver against deportation if the alien’s deportation would result in extreme hardship to the alien’s lawfully resident spouse, parent, or child. However, the statute prohibits the Attorney General from granting a waiver to an alien “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” The court determined that this language only applied to aliens who had initially lawfully entered into the United States after inspection and authorization by an immigration officer. Thus, the court held that the §212(h) language did not apply to Mendoza because he initially entered the country illegally and only later gained LPR status. Accordingly, the court granted Mendoza’s petition for review.
Decided: November 5, 2012
Singh sought judicial review of an order of the Board of Immigration Appeals (“the Board”) denying his application for withholding of removal under the Immigration and Nationality Act (“the INA”) and under Article III of the Convention Against Torture (“the CAT”). Singh argued on appeal that the Board denied relief in part based on an improper adverse credibility determination and that the errors of an incompetent interpreter violated his right to due process. The Fourth Circuit found no error and denied Singh’s petition for review.
Singh, a citizen of India, traveled to Mexico on a student visa and subsequently entered the United States, where he was served with a Notice to Appear by the Department of Homeland Security. Singh applied for withholding of removal under the INA and under the CAT and submitted various supporting documents. Singh initially appeared before an Immigration Judge (“the IJ”) with no interpreter present and the IJ continued the hearing until an interpreter could be present. The IJ ultimately entered a written memorandum and order denying Singh’s application for withholding of removal. Specifically, the IJ found Singh’s testimony lacked credibility and that Singh had not provided adequate corroboration for his claims. The Board affirmed the IJ’s decision and further rejected Singh’s contention that the incompetence of the interpreter in the hearing before the IJ violated Singh’s due process rights. Singh appealed to the Fourth Circuit.
Decisions by the IJ and the Board should be affirmed unless “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). In this case, the IJ considered the totality of the circumstances and concluded that Singh’s testimony was not credible. The Fourth Circuit found that the IJ’s stated reasons were “specific and cogent” and upheld the adverse credibility determination as being supported by substantial evidence. The court then turned to whether Singh was nonetheless entitled to withholding of removal under the INA or the CAT. To prevail on a withholding claim under the INA, Singh had to establish a “clear probability of persecution” and link that probability to one of several grounds, including political opinion. The Fourth Circuit found that Singh failed to demonstrate that he held a political opinion that would serve as the basis for further persecution if returned to India, and thus failed to establish a nexus to a statutorily protected ground. To prevail on a claim of withholding of removal under the CAT, Singh had to demonstrate that “it is more likely than not that he … would be tortured if removed” to India. 8 C.F.R. § 1208.16(c)(2). The IJ acknowledged Singh’s past mistreatment and the pattern of human rights abuses in India, but concluded that such a pattern did not justify a finding that Singh would more likely than not be tortured. Singh also claimed that his due process rights were violated by errors by his interpreter. The Fourth Circuit found that the IJ took specific steps to provide an interpreter and to ensure that Singh understood the interpreter. Furthermore, the court found that Singh failed to prove that any imperfection in the interpreter’s work was prejudicial. Accordingly, the Fourth Circuit denied Singh’s petition for review.
Decided: August 13, 2012
This case addressed an appeal from a decision by the Board of Immigration Appeals (the “BIA”), affirming the defendant’s ineligibility for a special rule cancellation of removal. The Material Support Bar prohibits cancellation where a defendant provided material support to a terrorist organization, whether the support was rendered voluntarily or under duress. In denying Barahona’s petition for review, the Fourth Circuit affirmed the BIA’s conclusion that Barahona was ineligible for cancellation because he involuntarily supported a terrorist organization prior to entering the United States.
Barahona, a native of El Salvador, entered the United States illegally and filed for asylum in 1987 and 1995. A hearing before an immigration judge (“IJ”) on the second asylum petition held in 2009 found that Barahona was removable. Barahona was permitted to apply for a “special rule” cancellation of removal pursuant to section 203 of the Nicaraguan and Central American Relief Act of 1997 (“the NACARA”), which authorizes cancellation of removal where the inadmissible or deportable alien satisfies certain criteria. Pursuant to 8 U.S.C. § 1182(a)(3)(B)(i)(I), an alien is inadmissible if he has engaged in “terrorist activity by providing ‘material support’ to a terrorist organization.” Material support is further defined as providing, inter alia, a safe house for members of a terrorist organization. Prior to arriving in the United States, members of an anti-government Salvadoran guerilla group, known as the “FMLN” (the Frente Farabundo Marti Para la Liberción Nacional), used the kitchen of Barahona’s Salvadoran home. While noting that Barahona was under duress when he accommodated the FMLN, the IJ found that there was no exception for duress or involuntariness under the Material Support Bar, thus Barahona did not qualify for special rule cancellation. Barahona appealed to the BIA, which affirmed his ineligibility. On appeal to the Fourth Circuit, Barahona argued that the BIA erred by deeming him ineligible for NACARA relief.
In this case, Barahona presents a question of law: whether the Material Support Bar excludes involuntary support, or support of a terrorist organization under duress. The BIA examined the Material Support Bar and found no exception for duress or involuntary contributions. Fourth Circuit afforded deference to the BIA, as it is the agency in charge of interpreting INA statutes, and found that Congress did not intend to create an involuntariness exception to the Material Support Bar. Congress did, however, created a discretionary waiver provision, vested in the Secretary of State and the Secretary of Homeland Security, for aliens who provided material support, but excepted from such a waiver those who voluntarily provided such support. There has been no discretionary waiver of Barahona’s material support of the FLMN in this case. Accordingly, Barahona’s petition for review of the BIA’s decision was denied.
Circuit Judge Wynn dissented on the basis that “passive acquiescence to the crimes of terrorists does not constitute an ‘act’ that ‘affords material support… to a terrorist organization.’” In characterizing the findings of the IJ and the BIA, Wynn states: “[T]he Immigration Judge and the Board of Immigration Appeals essentially found that — under threat of death — Barahona did not prevent the guerillas from occupying his home and using his kitchen.” This sort of passive act is not tantamount to committing an act in support of a terrorist organization.
Decided: July 25, 2012
The Fourth Circuit granted defendant Temitope Akinsade’s petition for writ of error coram nobis and vacated his conviction, finding that the district court’s admonishment during its Rule 11 proceeding was insufficient to correct Akinsade’s attorney’s mistake and additionally finding the attorney’s mistake to be a “but for” cause of Akinsade’s decision to enter a guilty plea. This case arose when immigration officials arrested Akinsade nine years after he entered a guilty plea based on his attorney’s advice that such plea could not result in his deportation from the United States. While the district court judge reviewed the ramifications of Akinsade’s plea with Akinsade during a Rule 11 hearing, including the possibility of deportation, Akinsade relied on his attorney’s assurances in proceeding with his guilty plea.
After his arrest, and under threat of deportation, Akinsade filed a petition for writ of error coram nobis in federal district court, arguing that his Sixth Amendment rights were violated due to his attorney’s errant advice. The district court denied Akinsade’s petition, finding that the attorney’s affirmative misrepresentations to Akinsade amounted to constitutionally deficient assistance of counsel, but concluding that Akinsade was not prejudiced.
The Fourth Circuit disagreed with the district court’s reasoning and determined that Akinsade met the four requirements needed to seek the relief provided by a writ of error coram nobis. Specifically, the Court found that (1) Akinsade could not seek relief under typical remedies, (2) valid reasons existed for Akinsade’s failure to attack his conviction at an earlier time, (3) the risk of deportation amounted to an adverse consequence sufficient to satisfy the case or controversy requirement of Article III, and (4) the attorney’s “misadvice” was an error of the “most fundamental character” such that coram nobis relief was required to achieve justice. Additionally, in rendering its decision, the Court clarified a district court’s obligations during Rule 11 proceedings and found that when faced with a claim of ineffective assistance of counsel, a district court’s admonishment must correct attorneys’ deficient performances in order to overcome any prejudice to the defendants. Therefore, because the Court found that the district court’s admonishment did not correct the particular “misadvice” given by the attorney in this case, and because the Court found the “misadvice” to be a “but for” cause of Akinsade’s decision to enter his guilty plea, it concluded that the misadvice prejudiced Akinsade in a manner necessitating coram nobis relief.
– Allison Hite
Decided: July 11, 2012
The Fourth Circuit Court of Appeals affirmed the district court’s dismissal of Mathur’s motion to vacate his guilty plea based on the Supreme Court’s 2010 decision in Kentucky v. Padilla. Mathur, an alien residing in the United States, pleaded guilty to possession with intent to distribute more than five kilograms of cocaine. However, his lawyer failed to advise him that he may be deported as a result of that guilty plea. In 2010, the U.S. Supreme Court held, in Padilla, that the Sixth Amendment right to counsel requires lawyers advise their clients of such consequences, and Mathur timely filed a motion within one year of that decision to vacate his plea.
The relevant statute, 28 U.S.C. § 2255, requires that a motion be filed within one year of conviction, or within one year of a new right held retroactive by the Supreme Court. In order for Mathur to take advantage of the limitations period, he must show that the Supreme Court recognized a new right, the right has been made retroactively applicable, and the motion was filed within one year of the date on which the Supreme Court recognized the right. In determining whether the Supreme Court recognized a new right, the Fourth Circuit identified a split in the circuits. The Third Circuit has held that Padilla did not announce a new rule, but the Seventh and Tenth Circuits have held it did. Assuming without deciding that it did recognize a new right, the critical inquiry is whether it is retroactively applicable. New rules of constitutional law are generally not retroactively applicable because of the importance of the finality of decision. However, Mathur contends that this new rule is “implicit in the concept of ordered liberty” and without the procedure, “the likelihood of an accurate conviction is seriously diminished.” The Fourth Circuit disagreed, highlighting the Supreme Court’s only retroactive application was based on the denial of representation by counsel. The Padilla right does not affect the fact-finding process because a defendant is already willing to plead guilty, and information related to possible deportation does not cast serious doubt on the truthfulness of the defendant’s guilty plea. Furthermore, other courts have not considered Padilla a new, retroactive right. Therefore, the dismissal is affirmed.
Judge Niemeyer concurred, and wrote separately to highlight language within § 2255 that justifies dismissal of Mathur’s motion.