DHS Is Not Precluded By Res Judicata From Initiating New Removal Proceedings Against One Convicted Of An Aggravated Felony Burglary Offense Per INA § 101(A)(43)(G) Based On The Same Conviction That Supported An Aggravated Felony Crime Of Violence Charge Per INA §(101)(A)(43)(F) In A Prior Matter. Home Invasion In The First Degree Under Michigan Compiled Laws §750.11a(2) Is A Categorical Burglary Offense Per INA § 101(A)(43)(G). Bravo-Pedroza V. Gonzalez, 475 F.3d 1358 (9th Cir. 2007), Not Followed.

On December 29, 2017, the Board of Immigration Appeals (BIA or Board) issued a decision denying the appeal of a respondent who had been charged with removability and placed into proceedings as one convicted of an aggravated felony crime of violence per INA §101(a)(43)(F) and ordered removed by the Immigration Judge (IJ).  Respondent appealed and the BIA remanded to the IJ in light of an intervening Sixth Circuit Court of Appeals (in whose jurisdiction this case arises) opinion holding 18 U.S.C. §16(b) unconstitutionally vague; as a result, the IJ terminated proceedings.  DHS then issued a 2nd NTA, charging respondent with removability under INA §101(a)(43)(G) as one convicted of an aggravated felony burglary offense; he filed a motion to terminate on the grounds that 1) the offense is not an aggravated felony and 2) further removal proceedings are barred by res judicata.  The IJ denied the motion, found the respondent removable under § 101(a)(43)(G) and this opinion addressed the respondent’s appeal, essentially the same arguments made to the IJ in the motion.

At the outset of its analysis, the Board noted that the res judicata “is a common law principle that provides that ‘a final judgment on the merits bars a subsequent action between the same parties over the same cause of action’”.  Because the doctrine is applied more flexibly in the administrative law context, the Board concluded that the IJ had properly held that res judicata does not bar these proceedings; the “underlying basis” for each charge is different, held the BIA, in that the proof required to establish whether an offense is a “crime of violence” or a “burglary offense” is not the same.  

Further, found the opinion, the IJ had properly sustained the crime of violence charge under the applicable precedent at that time per 18 U.S.C. § 16(b), a decision only rendered invalid by the Sixth Circuit’s intervening finding in Shuti v. Lynch, 828 F.rd 440 (6th Cir. 2016).  When the first NTA was filed, added the Board, no court had yet found § 16(b) void for vagueness, so Shuti constitutes “a circumstance that the DHS could not have legitimately anticipated”.  The BIA also found that requiring DHS to anticipate “every possible turn of events” and charge a respondent with all conceivable grounds would inhibit the very judicial economy that is a “fundamental goal of res judicata”.   Similarly, it would not be practical to mandate that DHS present “all possible bases for removal in a single proceeding”.   

As to the perceived tension herein between the public’s interest in administrative finality and Congress’s “clear intent” to remove criminals from the U.S., the Board noted that “the latter controls”.  Thus, concluded the BIA, res judicata should not apply here; a contrary holding would leave certain respondents in a legal limbo-ineligible to adjust status but not removable if new proceedings could not be initiated.  In view of this, the Board respectfully disagreed with the Ninth Circuit precedent, Bravo-Pedroza v. Gonzalez, 475 F.3d 1358 (9th Cir. 2007), which found that the principle bars DHS from issuing a second NTA based on a conviction it could have presented in the first case.  Contrary to the Ninth Circuit’s interpretation of 8 C.F.R. § 1003.30 (2017), the BIA did not understand that regulation, which allows the bringing of additional or substituted charges at any time during the same proceeding, to address the issue of res judicata at all.  The Board disagreed with respondent’s contention that “this aspect of the res judicata doctrine is dispositive in immigration proceedings where the grounds of removability charged are criminal in nature”, concluding that DHS is not precluded by res judicata from initiating a separate removal proceeding against the respondent because of his aggravated felony burglary offense per INA § 101(a)(43)(G), based on the same conviction that supported the prior proceeding.

Lastly, the BIA agreed with the IJ’s finding that home invasion in the first degree under Michigan Compiled Laws § 750.110a(2) is categorically a burglary aggravated felony per INA § 101(a)(43)(G), holding that the added elements to the crime’s definition under the Michigan statute, in fact, narrowed the scope of the statute’s definition rather than expanding it to include conduct outside of the generic definition.  The entirety of the Michigan law, found the opinion, falls within the generic burglary definition which does not require intent at entry; the requisite intent can be developed while “remaining in” a dwelling without permission.  The appeal was thus dismissed.  Matter of Jasso Arangurre, 27 I&N Dec. 178 (BIA 2017).

Learn more about Levin Immigration.

Comments Off on DHS Is Not Precluded By Res Judicata From Initiating New Removal Proceedings Against One Convicted Of An Aggravated Felony Burglary Offense Per INA § 101(A)(43)(G) Based On The Same Conviction That Supported An Aggravated Felony Crime Of Violence Charge Per INA §(101)(A)(43)(F) In A Prior Matter. Home Invasion In The First Degree Under Michigan Compiled Laws §750.11a(2) Is A Categorical Burglary Offense Per INA § 101(A)(43)(G). Bravo-Pedroza V. Gonzalez, 475 F.3d 1358 (9th Cir. 2007), Not Followed.

Whether The Violation Of A Protective Order Makes One Removable Per INA § 237(A)(2)(E)(Ii) Is Not Controlled The Categorical Or Modified Categorical Approaches, Even Where A Conviction Underlies The Charge. Instead, An Immigration Judge Should Consider The Probative And Reliable Evidence Regarding What A State Court Has Determined About The Respondent’s Violation. Matter Of Strydom, 25 I&N Dec. 507 (BIA 2011) Clarified.

On November 17, 2017, the Board of Immigration Appeals (BIA or Board) ruled on a DHS appeal of an Immigration Judge (IJ) order terminating removal proceedings after holding the respondent was not removable under INA § 237(a)(2)(E)(ii) as one who had violated a protective order.  Respondent had been convicted of criminal contempt per section 215.5(b)(iii) of the New York Penal Law for violating a protective order issued by a State court, requiring him to stay away from a woman and her family.  As a result, DHS initiated proceedings charging him with removability per § 237(a)(2)(E)(ii), submitting documents that included a presentence report, a probation violation report, a prosecutor’s letter and sworn victims’ statements.  Because these materials are not part of the record of conviction, the IJ found they could not be considered in analyzing respondent’s removability under the categorical and modified categorical approaches, and held that, under either of these analyses, the statute of conviction is overbroad and he is therefore not removable under the INA section charged.

On appeal, DHS argued the IJ should have used the ‘circumstance-specific” approach in analyzing removability per 237(a)(2)(E)(ii).  The BIA began its analysis by noting that the plain language of this section of the Act makes clear that a “conviction” is not required to establish removability and framed the issue as whether the fact of a conviction “requires the application of the categorical and modified categorical approaches in determining removability under section 237(a)(2)(E)(ii)” even though the statutory language does not make a conviction necessary to removability.

Finding that the categorical approach is rooted in Congress’ specification that a conviction, not conduct, is “the trigger for immigration consequences”, the Board held that the legislative branch did not intend removability per 237(a)(2)(E)(ii) to be analyzed under either the categorical or modified categorical approach.  Support for this conclusion was found in multiple circuit court of appeals decisions.  However, the BIA did not agree with the DHS claim that it must apply the “circumstance-specific” approach in this case, stating that this approach “only applies when a portion of a criminal ground of removability is not subject to the categorical approach.”  (Emphasis in original.)  Here, the entire ground of removability is not subject to a categorical analysis and the Board therefore found that the plain language of 237(a)(2)(E)(ii) limits its analysis regarding removability to what a court has “determined” about a respondent’s protective order violation; this may be established “through any reliable evidence.”

The BIA thus held whether the violation of a protective order renders one removable per § 237(a)(2)(E)(ii) is not governed by the categorical approach, even if a conviction underlies the charge.  Instead, the IJ must consider “the probative and reliable evidence regarding what a State court has determined” about a respondent’s violation.  Further, concluded the opinion, the IJ should decide 1) whether a State court determined that one has engaged in conduct that violates the portion of a protective order that involved protection against credible threats of violence, repeated harassment or bodily injury and 2) whether the order was issued for the purpose of preventing violent or threatening acts of domestic violence.

In reaching this conclusion, the Board clarified its decision in Matter of Strydom, 25 I&N Dec. 507 (BIA 2011) in which it had presumed that the categorical approach applied in a similar case and found the appellant removable under 237(a)(2)(E)(ii); it now concluded that “this approach is not applicable” where removability under that section of the INA must be determined and held that it will no longer apply the categorical approach in cases involving a § 237(a)(2)(E)(ii) removability analysis.  

The IJ’s decision was vacated, the appeal sustained, proceedings reinstated and the record remanded for a new decision.  Matter of Obshatko, 27 I&N Dec. 173 (BIA  2017).

Learn more about the immigration services provided by Philip Levin & Associates.

Comments Off on Whether The Violation Of A Protective Order Makes One Removable Per INA § 237(A)(2)(E)(Ii) Is Not Controlled The Categorical Or Modified Categorical Approaches, Even Where A Conviction Underlies The Charge. Instead, An Immigration Judge Should Consider The Probative And Reliable Evidence Regarding What A State Court Has Determined About The Respondent’s Violation. Matter Of Strydom, 25 I&N Dec. 507 (BIA 2011) Clarified.

BIA Clarifies Recent Precedent Decision That Crime Of Aggravated Battery Under The Puerto Rico Penal Code Is Not Categorically A Crime Of Violence Per 18 U.S.C § 16(a), Holding that Controlling Circuit Court Law Must Be Followed On The Question Of Whether The Use or Threatened Use Of Poison To Injure Another Involves Sufficient `Force` To Constitute A Crime Of Violence.

On September 9, 2016, The Board of Immigration Appeals (BIA or Board), readdressing a question that it had confronted earlier this year, issued an opinion clarifying Matter Of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), which held that a conviction for aggravated battery in violation of the Puerto Rico Penal Code is not categorically for a crime of violence under 18 U.S.C. §16(a).

Following that decision, the Department of Homeland Security (DHS) had filed a motion for reconsideration arguing initially against the Board’s withdrawal from Matter of Martin, 23 I&N Dec. 491 (BIA 2002) in Guzman-Polanco. Granting the motion so as to address DHS’ concerns and explain its prior decision, the BIA upheld its previous holding that the Puerto Rican simple battery statute is too vague to categorically establish a crime of violence under §16(a) because it only requires that the infliction of “injury to the bodily integrity of another” be “through any means or form”. Again finding that the U.S. Supreme Court’s decision in Johnson V. United States, 559 U.S 133 (2010) (the phrase “physical force” means violent force – force “capable of causing physical pain or injury to another person”) controls its interpretation of §16 (a), the Board stated it was “appropriate” to withdraw from Matter of Martin to the extent that decision is inconsistent with Johnson because it includes within the definition of “crime of violence” offenses that do not require violent force.

As to DHS’ argument that the use of “indirect means” such as poison qualifies as a sufficient “use of force” to qualify under §16(a), the Board recognized that there is currently a circuit split on the issue and ruled that individual circuit law governs unless the Supreme Court  resolves this question. The record was thus remandad to the Immigration Judge for further proceedings and entry of a new decision. Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016)   

Learn more about the immigration services provided by Philip Levin & Associates.

Comments Off on BIA Clarifies Recent Precedent Decision That Crime Of Aggravated Battery Under The Puerto Rico Penal Code Is Not Categorically A Crime Of Violence Per 18 U.S.C § 16(a), Holding that Controlling Circuit Court Law Must Be Followed On The Question Of Whether The Use or Threatened Use Of Poison To Injure Another Involves Sufficient `Force` To Constitute A Crime Of Violence.

BIA Holds That “Rape” Under INA § 101(A)(43)(A) Includes An Act Of Vaginal, Anal, Or Oral Intercourse, Or Digital Or Mechanical Penetration, No Matter How Slight.  Perez-Gonzalez V. Holder, 667 F.3d 622 (5th Cir. 2012), Not Followed.  “Rape” Also Requires That The Underlying Sexual Act Be Committed Without Consent, Which May Be Shown By A Statutory Requirement That The Victim’s Ability To Appraise The Nature Of The Conduct Was Substantially Impaired And The Defendant Had A Culpable Mental State As To Such Impairment.

On October 20, 2017, the Board of Immigration Appeals (BIA or Board), in ruling on the appeal of a respondent convicted of aggravated felony rape under INA § 101(a)(43)(A) and ordered removed by the Immigration Judge (IJ), discussed what acts are encompassed by “rape” and whether the “substantial impairment” standard found at § 2907.02(A)(1)(c) of the Ohio Revised Code Annotated is synonymous with an incapacity to consent.  Initially, held the BIA, whether a conviction is for aggravated felony rape under § 101(a)(43)(A) is a question of law the Board reviews de novo.

To begin its analysis, the BIA noted that its inquiry is governed by the categorical approach, which requires an adjudicator to “compare the scope of conduct punished as rape” under Ohio law with the generic definition of “rape” in § 101(a)(43)(A).  The term, explained the opinion, was added to the INA in 1996, but is not defined by the Act or any other provision of federal law.  In the absence of statutory definition, held the BIA, the Board must “define the term according to its ordinary, contemporary meaning in 1996” when “rape” was added to the aggravated felony provisions.  

Respondent argued that the BIA’s inquiry into the ordinary, contemporary meaning of “rape” in 1996 “should be limited to examining the laws of the 23 states that prohibited a crime specifically called ‘rape’ at that time”; as only a minority of such jurisdictions included digital or mechanical penetration in that definition, he claimed that in 1996 the consensus was that this conduct was not rape.  The Board disagreed, finding that many of these States treated such crimes and rape as synonymous and interchangeable – quoting an Illinois Supreme Court decision to point out that the goal of renaming these crimes was to take a “hodgepodge of preexisting statutes” and create one comprehensive law “that reflects the fact that rape encompasses all types of sexual assault”.  Put another way, held the Board, Congress’ “restyling” of “rape” into forms of “sexual abuse” was meant to “remove barriers associated with the traditional understanding of rape and to bring Federal law in line with the growing consensus among the States” that “rape” includes a wider range of unacceptable conduct than coerced sexual intercourse.  

As to the sexual act required for a conviction, the BIA noted that by 1996 the State consensus was that “rape” encompassed not only vaginal, anal, and oral intercourse, but also digital and mechanical penetration as well.  Thus, held the Board, because a majority of States defined rape so as to include these acts, “such offenses are also covered by the definition of ‘rape’ in section 101(a)(43)(A)…”, no matter how slight the penetration.

Regarding the issue of consent, the BIA framed the inquiry as how to define lack of consent generally and where a victim’s mental condition amounts to a “prohibitive condition” that makes an act of sexual penetration unlawful.  Setting forth the Ohio statute under which respondent was convicted as defining “rape” as a sexual act where either 1) the victim’s mental capacity is substantially impaired as the result of an intoxicant administered without consent by the defendant or 2) the victim’s mental capacity is substantially impaired and the defendant knew or had reason to know, the Board found respondent conviction to have been based on the latter circumstance.  Here, the respondent’s argument appeared to highlight the phrase “incapable of giving consent”, so as to attribute to the term “a meaning that requires complete incapacitation, or an inability to vocalize consent”; this interpretation, found the opinion, “is flatly at odds with the consensus in 1996.”  Yet by that time, stated the BIA, the term “incapable” did not denote an absolute inability to consent, merely an inability to give effective or meaningful consent.  In other words, held the Board, the “pivotal question” is whether a victim is substantially able to understand what she was doing; this is “essentially synonymous” with requiring that the impairment be of such a degree “as to deprive the victim of the ability to provide meaningful consent”.  The IJ’s order was therefore affirmed and the appeal dismissed.  Matter of Keely, 27 I&N Dec. 146 (BIA 2017).

Learn more about the immigration services provided by Philip Levin & Associates.

Comments Off on BIA Holds That “Rape” Under INA § 101(A)(43)(A) Includes An Act Of Vaginal, Anal, Or Oral Intercourse, Or Digital Or Mechanical Penetration, No Matter How Slight.  Perez-Gonzalez V. Holder, 667 F.3d 622 (5th Cir. 2012), Not Followed.  “Rape” Also Requires That The Underlying Sexual Act Be Committed Without Consent, Which May Be Shown By A Statutory Requirement That The Victim’s Ability To Appraise The Nature Of The Conduct Was Substantially Impaired And The Defendant Had A Culpable Mental State As To Such Impairment.

BIA Holds That Criminally Negligent Homicide In Violation Of New York Penal Law § 125.10 Is Categorically Not A Crime Involving Moral Turpitude As It Does Not Require A Defendant To Have A Sufficiently Culpable Mental State.

On October 16, 2017, the Board of immigration Appeals (BIA or Board), in sustaining a respondent’s appeal of an Immigrant Judge’s (IJ’s) order of removal, held that criminally negligent homicide under New York law is not a crime involving moral turpitude (CIMT).  After respondent, a lawful permanent resident, was convicted of criminally negligent homicide and, subsequently, of promoting prostitution, DHS initiated removal proceedings charging him under both INA § 237(a)(2)(A)(i) as one convicted of CIMT within 5 years of Admission and (a)(2)(A)(ii) as one who at any time after admission is convicted for 2 or more CIMT’s not arising out of a single scheme of misconduct.  Initially, the BIA noted that if the homicide conviction is not for a CIMT, proceedings would have to be terminated because neither charge of removability could be sustained.  

Respondent argued on appeal that his first conviction did not render him removable as § 125.10 punishes criminally negligent conduct, which is not morally turpitudinous.  In assessing, whether an offense is a CIMT, the Board stated that it employs the categorical approach by comparing the elements of the state offense to those of the generic crime to determine if there is a categorical match.  Previously, it had held that moral turpitude inheres in crimes involving serious misconduct committed “with at least a culpable mental state of recklessness”, i.e., a conscious disregard of a substantial and unjustifiable risk, citing to Matter of Franklin, 20 I&N Dec. 867 (BIA) 1994) and an earlier precedent Board decision which had found that one acting under this mental state could be convicted of a CIMT because recklessness requires an actual awareness of risk; both BIA cases had been affirmed by the U.S. Courts of Appeal.  In contrast, noted the Board, crimes committed with criminal negligence are usually not morally turpitudinous because neither intent nor a conscious disregard of substantial and unjustifiable risk is required for conviction, thus no sufficiently culpable mental state need be proven.

In parsing the statute of conviction, the BIA found that § 125.10 provides that one is guilty of criminally negligent homicide when, with “criminal negligence”, he causes the death of another while § 15.05(4) defines criminal negligence as the failure to perceive a substantial and unjustifiable risk.  Thus, held the Board, criminal negligence under New York law is materially distinct from the concept of “recklessness” outlined in the above-referenced precedent decisions in that it only requires a perpetrator to fail to perceive such a risk whereas recklessness requires the risk to be consciously disregarded.  Therefore, concluded the decision, the elements of § 125.10 “do not categorically fall within the definition” of a CIMT.  As a result, the IJ was found to have erred in finding the respondent removable, the appeal was sustained and proceedings terminated.  Matter of Tavdidishvili, 27 I&N Dec. 142 (BIA 2017).

Learn more about the immigration services provided by Philip Levin & Associates.

Comments Off on BIA Holds That Criminally Negligent Homicide In Violation Of New York Penal Law § 125.10 Is Categorically Not A Crime Involving Moral Turpitude As It Does Not Require A Defendant To Have A Sufficiently Culpable Mental State.