BIA Holds Conviction For Transporting A Loaded Firearm In Violation Of Oklahoma Statue Title 21, Section 1289.13, Is A Categorical Firearms Offense Under INA §237(a)(2)C) Because That Law Is Broadly Construed To Encompass All Types Of Firearms Offenses, Even Though The Word “Transporting” Is Not Included In The INA.

On March 3, 2017, the Board of Immigration Appeals (BIA or Board) held that the offense of transporting a loaded firearm in violation of Title 21, Section 1289.13 of the Oklahoma Statutes qualifies as a firearms offense per INA §237(a)(2)(C), thus making one convicted  of said crime ineligible for cancellation of removal under INA §240(b)(1)(C).

The BIA began its opinion by noting that §237(a)(2)(C) makes removable one who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying (or of attempting one of these acts) any firearm or destructive device, while referencing respondent’s contention that because “transporting” does not include “possessing” or “carrying” a firearm, Congress did not intend his crime to fell within the purview of §237(a)(2)(C).

The decision notes the INA’s use of the expansive term “any” and the “comprehensive list” of firearms transactions covered, making it clear Congress intended to embrace all firearms offenses under §237(a)(2)(C), a view – the BIA wrote – that has been upheld repeatedly by the Federal courts of appeal. In this regard, the Board quoted Federal caselaw on to how “possessing” and “possess” in §237(a)(2)(C) include constructive possession of a firearm. In this regard, found the Board, because respondent knowingly transported a firearm in his vehicle, he necessarily had constructive “possession” of it for purposes of the INA. Further, stated the BIA, it is illogical for unlawful possession to fall within §237(a)(2)(C)’s scope but for unlawful transportation of the same loaded weapon to be excluded.

As the Board found that the statute’s legislative history support its conclusion, it held that the crime of transporting a loaded firearm under Oklahoma law is categorically a firearms offense under the INA rendering respondent ineligible for cancellation relief and dismissed the appeal. Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017).

 

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BIA Holds That INA §241(b)(3)B)(i) “Persecutor Bar” Applies To One Who Assists Or Otherwise Participates in Another’s Persecution Because Of That Person’s Race, Religion, Nationality, Membership In A Particular Social Group Or Political Opinion, Without Regard To The Persecutor’s Motivation For Assisting Or Participating.

On May 5, 2017, the Board of Immigration Appeals (BIA or Board) sustained a Department of Homeland Security (DHS) appeal of an Immigration Judge’s (IJ’s) granting of special rule cancellation of removal under Section 3 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) after finding respondent was not subject to the “persecutor bar” of INA §241(b)(3)B)(i). Special rule cancellation under NACARA requires the applicant to prove that he or she is not barred from relief because of having ordered, incited, assisted or otherwise participated in the persecution of another because of that person’s “race, religion, nationality, membership in a particular social group, or political opinion”. The BIA thus noted towards the beginning of its opinion that the only issue here is whether the persecutor bar applies to respondent.

The applicant had served in the Salvadorian National Guard and detained someone who he “delivered to his supervisors for questioning”, then stood guard during the ensuing interrogation when the detainee was “severely mistreated”. The IJ held that while respondent had assisted or otherwise participated in his superiors’ actions, his own acts were a consequence of his military service undertaken to support himself and, as such, he had not imputed a political opinion to the detainee. Because the respondent did not intend to overcome another’s political opinion or other protected characteristic, the IJ concluded he was not subject to the persecutor bar.

Disagreeing, the Board noted that the applicant had “assisted” his superiors and their actions were taken on account of the detainee’s political opinion. Therefore, the BIA found that the “critical inquiry” was whether respondent needed to have a persecutory motive when he assisted in the victim’s persecution in order to be subject to the §241(b)(3)B)(i) prohibition. Quoting a relevant Fifth Circuit Court of Appeals opinion, after noting its “duty to apply the plain language of the Act”, the Board concluded that one’s personal motivation is not relevant to the application of the bar. Thus, held the BIA, when determining whether one has assisted or participated in persecution per §241(b)3(B)(i), the proper focus” is not on the actor’s motives, but “on the intent of the perpetrator of the underlying persecution”. Here, the respondent’s assistance involved the bar, without regard to his motivation, because his superiors’ conduct was based on the victim’s political opinion and he was ordered removed. Matter of Alvarada, 27 I&N Dec. 27 (BIA 2017).

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BIA Holds That Sex Offense Violating A Statute Enacted To Protect Children Is A Crime Involving Moral Turpitude (CIMT) Where the Victim Is Particularly Young – Under 14 – Or Is Under 16 And the Age Difference Between the Perpetrator And Victim Is Significant, Or Both, Even Where The Law Does Not Require A Culpable Mental State As to the Child’s Age. As Such, Sexual Solicitation Of A Minor Per Maryland Criminal Law §3-324(b) With Intent To Engage In Unlawful Sexual Conduct In Violation Of §3-§307 Is A Categorical CIMT.

On April 6, 2017, the Board of Immigration Appeals (BIA or Board) held a respondent’s offense to be a categorical crime involving moral turpitude (CIMT) where all violations of the pertinent statute involve either a very young victim (under 14) or a substantial age difference between the adult defendant and a minor victim under 16.

Respondent was convicted of Maryland Criminal Law (MCL) §3-324 (sexual solicitation of a minor) and the Immigration Judge (IJ) had found him removable as, among other grounds, one convicted of a CIMT. On appeal, he argued his conviction did not so qualify. In its initial analysis, the BIA noted that the parties agreed the law is divisible and that respondent had been convicted under §3-324(b), prohibiting knowingly soliciting a minor or law enforcement officer, posing as a minor, with intent to violate MCL §3-307, to engage in acts violative of §3-307. In turn, the Board quoted §3-307(a) in full, which criminalizes sexual conduct with another without his or her consent in a variety of circumstances, including the use of a dangerous weapon; harming or inflicting severe physical injury; threating or placing in fear of  death, harm, or severe physical injury; or, while assisted by another. The section also criminalizes sexual contact with “a mentally defective”, “mentally incapacitated” or “physically helpless” individual where the perpetrator knows or should know of the impairment; sexual contact with one under 14 and the defendant is at least 4 years older; a sex act with a 14 or 15 year-old where the perpetrator is at least 21; and, vaginal intercourse with a 14 or 15 year-old where the defendant is at least 21. Given this, the Board cited Matter of Silva-Trevino, 24 I&N Dec. 286 (BIA 2016) for the general rule that CIMTs require both reprehensible conduct and a culpable mental state. Further, the decision stated that in determining whether an offense is a CIMT, the BIA uses the categorical approach, focusing on the elements of the criminal statute rather than the facts of the particular violation; where the statute is divisible the Board examines the record of conviction to identify the exact provision violated and then considers whether that portion of the statute “is a categorical match to the federal generic definition.”

In finding respondent’s violation to be a categorical CIMT, the BIA first noted that §3-324(b) requires a knowing solicitation of a minor, a culpable mental state fitting a generic CIMT. Additionally, §3-307 involves turpitudiouos sexual contact without consent, as well as intentional sexual acts or conduct with a minor under 16, clearly CIMTs. Responding to respondent’s argument that those parts of the law that do not require a culpable mental state as to the victim’s age do not categorically define a CIMT, the opinion looked to the Third Circuit’s reasoning in Mehboob v. Attorney General of the U.S., 549 F.3d 272 (3d Cir. 2008), which held that strict liability morality offenses like indecent assault are CIMTs “because of the community consensus that such offenses, which are enacted for the protection of the child, are inherently antisocial and depraved.”

Thus, because sex offenses against minors contravene society’s interest in protecting children and any type of sexual misconduct with a child intrudes on the victim’s rights, the BIA held that a sex offense in violation of a law enacted to protect children is a CIMT where the victim is particularly young – under 14 – or is under 16 and the age difference between the perpetrator and victim is significant, or both even though the statute requires no culpable mental state as to the child’s age. The Board collaterally held that where a criminal law prohibiting sexual conduct with a minor involves either a particularly young victim or a significant age differential with the child being younger than 16, the culpable mental state for a CIMT is implicitly satisfied by the commission of the proscribed act. As a result, all parts of §3-307 categorically fit within the generic definition of a CIMT.

The BIA therefore dismissed the appeal and, upon finding respondent had not submitted proof that his voluntary departure bond had been paid as ordered by the IJ, refused to reinstate voluntary departure. Instead, it ordered respondent removed. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017).

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BIA Holds That A Conviction Under California Penal Code §203 For The Crime Of Mayhem Requires A Malicious Act Resulting In Great Bodily Injury To Another, Therefore The Offense Involves The Use Of Violent Force And Is Thus A Categorical Crime Of Violence Per §18 USC 16(a).

On January 31, 2017, in a densely reasoned opinion, the Board of Immigration Appeals (BIA or Board) held that a conviction under California Penal Code §203 for mayhem qualifies as an aggravated felony crime of violence (COV) under INA §101(a)(43)(F) if the term of imprisonment imposed was at least one year. The appellant had been convicted of mayhem in 2013 and sentenced to 2 years in jail but in subsequent removal proceedings, the Immigration Judge (IJ) determined the offense was not a COV because §203 lacks an explicit element regarding the use, attempted use, or threatened use of violent force against another, as required by 18 USC §16(a), and terminated the proceedings. The government appealed.

Initially, the BIA noted that in determining whether respondent’s §203 conviction renders him removable it uses the categorical approach, comparing the elements of the criminal statute to those of the federal generic definition of a COV, assuming the conviction rested on nothing more than “the least of the acts criminalized”. The Board then noted that §16(a) defines a COV as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, explaining that the term “use” denotes volition while “physical force” means violent force capable of causing physical pain or injury. As his §203 conviction required a jury to find that respondent 1) committed an unlawful and malicious act 2) resulting in another’s body part being removed, disabled or disfigured, the opinion stated that the IJ’s analysis did not appear to recognize – even without those terms’ inclusion – that the requisite force may be “necessarily involved” in violations of the California statue.

In analyzing the “use” of force component, the BIA noted that §203 requires one to actively use force within the meaning of §16(a) such that mayhem must be committed “maliciously”, which intent may be inferred from actions which result in the listed injuries. As a result, the proscribed conduct must involve a volitional act capable of causing physical pain or injury although not necessarily a specific type of harm. Thus, held the Board, respondent’s offense must have necessarily involved the “use” of physical force suggesting a higher degree of intent than negligent or accidental conduct.

In parsing the “use” of violent physical force, the BIA found that §203 requires one’s malicious act to cause “great bodily injury”, holding that this necessarily involves force capable of causing the required physical pain or injury. The Board also found that there is no realistic probability that §203 would be used to prosecute a mayhem offense involving mere offensive touching and thus held that a violation of §203 is categorically a COV per §16(a), vacated the IJ’s decision, sustained the appeal, reinstated proceedings and remanded the record to the IJ. Matter of Kim, 26 I&N Dec. 912 (BIA 2017).

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In Determining Whether A Statute Is Divisible Per Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges May Consider A Respondent’s Conviction Record Only to Figure Out Whether Statutory Alternatives Define “Elements” or “Means”, Provided The Issue Is Not Resolved By State Law.

On April 24, 2017, the Board of Immigration Appeals (BIA or Board) – in a case that has been before the BIA several times – denied a motion to reconsider filed by the government (“DHS”) in response to a prior opinion of the Board [Matter of Chairez , 26 I&N Dec. 819 (BIA 2016)] holding that DHS had failed to prove the respondent removable for conviction of an aggravated felony crime of violence (COV) per INA §237(a)(2)(A)(iii). (In a footnote the decision noted that the Immigration Judge (IJ) had, in fact, found respondent removable for conviction of a categorical firearms offense per INA §237(a)(2)(C), a finding the Board had previously affirmed.)

In its prior opinion in Chairez the BIA had, in a fairly technical holding, concluded that the section of the Utah Code respondent violated in being convicted of unlawfully discharging a firearm was not a categorical COV because it can include acts committed with a mens rea of recklessness; thus, even though the law included crimes committed intentionally and knowingly, it was not divisible into 3 separate offenses with “distinct mental states (intentional, knowing, and reckless) and therefore a modified categorical approach was not allowed.

The DHS motion had claimed the Board should extend the holding of the U.S. Supreme Court in Voisine v. United States, 136 S. Ct. 2272 (2016) and find that even a reckless firearms discharge is a COV under the Utah statute, despite the decision of the Tenth Circuit Court of Appeals, in whose jurisdiction this case arises, in United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008)(reckless conduct does not involve the deliberate “use” of physical force required by a COV). Alternatively, the government argued that, even if the Utah law is not a categorical COV, the BIA had misapplied Mathis v. United States, 136 S. Ct. 2243 (2016), cited as authority by Zuniga-Soto, by both improperly inferring the statute is indivisible and failing to consider respondent’s plea agreement as evidence of the law’s divisibility.

Holding that the DHS motion “does not identify an adequate reason for reconsideration”, the Board initially noted that it cannot extend the rationale of a Supreme Court case in the face of contrary controlling circuit precedent, stating that while Zuniga-Soto remained good law, this was not the proper case to express an opinion on “how the law may or should evolve after Voisine.” As to the contention that the BIA had misapplied Mathis, the opinion found that when state law does not address the distinction between “elements” and “means” as regards a specific criminal law, the Board may seek guidance in cases interpreting statutes with similar language and structure.

Lastly, as to divisibility under Mathis, the decision held that an IJ may consider the respondent’s conviction record for the “sole and limited purpose” of determining whether statutory alternatives define discrete “elements”, i.e., facts that must be proven to a jury beyond a reasonable doubt in order to obtain a conviction. However, as in the instant case, where the admission of a “knowing” mental state in a plea agreement is not “tethered” to any fact charged in an information, that admission cannot establish the divisibility of the particular statute under Mathis. No legal or factual error being found in its prior decision, the BIA denied DHS’ motion to reconsider.

In a concurring opinion, Board Member Garry Malphrus stated an opinion that the approach to divisibility dictated by Mathis “will result in immigration proceedings being terminated for many aliens who had committed serious crimes” in the U.S. Matter of Chairez-Castrejon, 27 N&N Dec. 21 (BIA 2017).

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