BIA Finds that 18 USC 1201(a) is not an Aggravated Felony

The Board of Immigration Appeals has determined that a kidnapping conviction under 18 USC 1201(a)(1), (a)(2) is not an aggravated felony. INA 101(a)(43)(H) defines an aggravated felony to include “an offense described in section 875, 876, 877, or 1202 of title 18.” The Department of Homeland Security argued that an offense defined in 18 USC 1201 is still one described in those sections. “However, we cannot agree that Congress’ use of the phrase ‘described in’ allows us to interpret section 101(a)(43)(H) as including an offense under a Federal statute that is not enumerated there.”

“Congress used the phrase ‘relating to the demand for or receipt of ransom’ as the descriptor of the offenses defined in the four Federal statutes enumerated in section 101(a)(43)(H), not the phrase ‘relating to kidnapping.’ A conviction for kidnapping under § 1201 does not require a demand for or receipt of ransom to support a conviction, because the statute requires proof that a person has been ‘held for ransom, reward, or otherwise’.”

The full text of Matter of A. Vasquez can be found here:

https://www.justice.gov/eoir/page/file/1154051/download

Eighth Circuit finds that Arkansas Kidnapping Statute is not Violent Felony under ACCA

The Eighth Circuit has determined that an Arkansas kidnapping statute does not qualify as a violent felony under the Armed Career Criminal Act because it does require the use of physical force. The court also determined that the statute is indivisible. Because the definition of a violent felony is similar to definition of a crime of violence in the immigration law, this case may hav persuasive effect in immigration cases.

The full text of U.S. v. Coleman can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/03/182400P.pdf

Ninth Circuit Reaffirms that Kidnapping is a Crime of Violence

In a federal criminal proceeding, the Ninth Circuit again affirmed that kidnapping under section 207(a) of the California Penal Code is a crime of violence.  Although this is not a new revelation, there was some hope that the court's 2013 decision in Castrijon-Garcia v. Holder, which held that kidnapping was not categorically a crime involving moral turpitude, signaled a change in direction for evaluating the immigration consequences of this conviction.  Notably, it does not appear that the petitioner in today's case argued that Castrijon-Garcia had any impact on the analysis, so this argument remains open for future cases.

The court also affirmed that an attorney's factual allegations can be used to sustain removability.  In the instant case, the petitioner's former attorney conceded that a controlled substance conviction involved methamphetamine, thus relieving the government of any further burden to prove his removability for this conviction.

The full text of United States v. Zamudio can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/14/13-10322.pdf