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Viewing entries tagged
particularly serious crime
The Ninth Circuit has reaffirmed the presumed validity of a Form I-213, even when it is used to determine that an individual was convicted of a particularly serious crime. In so doing, the court distinguished its decision in Alcaraz-Enriquez by noting that the petitioner did not challenge the accuracy of the Form I-213.
The full text of Hernandez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/31/20-72138.pdf
The Board of Immigration Appeals has determined that a Florida deferred adjudication - which involved a defendant who pled nolo contendere and received a probationary sentence - not only qualifies as a conviction for immigration purposes, but also qualifies as a “conviction by final judgment” for particularly serious crime purposes.
The full text of Matter of D-L-S- can be found here:
The Attorney General has determined that the agency may consider an applicant’s mental health conditions when determining if the applicant has been convicted of a particularly serious crime. “In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community— for instance, where the respondent ‘suffered from intimate partner violence, was convicted of assaulting his or her abuser, and reliable evidence showed that the individual’s diagnosed post-traumatic stress disorder had played a substantial motivating role in the assault.’ Of course, an individual may pose a danger to the community notwithstanding a mental health condition, and in those cases, the ‘particularly serious crime’ bar to asylum and withholding of removal may apply. But the potential relevance of mental health evidence to the dangerousness inquiry suffices to establish that such evidence should not categorically be disregarded, as G-G-S- held.”
The full text of Matter of B-Z-R- can be found here:
The Board of Immigration Appeals has determined that a non-citizen is not eligible for an asylee adjustment of status if his asylum status has been terminated prior to filing the adjustment application. The Board also affirmed that the applicant’s convictions for bank fraud and identity theft were particularly serious crimes that rendered him ineligible for withholding of removal.
The full text of Matter of T-C-A- can be found here:
The First Circuit has remanded a case in which the Immigration Judge concluded that the petitioner was ineligible for withholding of removal due to a drug trafficking conviction without analyzing whether the presumption arising in Matter of Y-L- had been rebutted. In addition, the petitioner argued that the Y-L- is effectively treated as a conclusion that all drug trafficking convictions are particularly serious crimes, as opposed to a rebuttable presumption. The court noted that the government had not presented a single case in which the agency found someone had rebutted the presumption, and thus, indicated the government could supplement the record on remand with any cases in which the agency found the presumption had been rebutted.
The full text of Decarvalho v. Garland can be found here:
The Ninth Circuit has determined that the agency must only reference a petitioner’s mental illness during a particularly serious crime analysis if the petitioner presents evidence attributing the crime to mental illness. The court also determined that the agency was not required to terminate proceedings for a mentally ill petitioner who physically attacked his qualified representative and who refused to cooperate in any document collection efforts made by his representative.
The full text of Benedicto v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/09/18-73237.pdf
The Eighth Circuit has determined that the agency need not consider an applicant’s mental health in its particularly serious crime analysis when invoking the presumption in Matter of Y-L- that drug trafficking crimes are particularly serious crimes, unless the applicant first overcomes that presumption.
The full text of Gilbertson v. Garland can be found here:
The Eighth Circuit has determined that a crime which is not a per se particularly serious crime must be of the type that shows that the applicant is a danger to the community and must be “excessive in quality or extent to some unusual degree.”
The full text of Mumad v. Attorney General can be found here:
The Tenth Circuit has determined that a Utah terroristic threats conviction is a crime involving moral turpitude. “We hold that recklessly threatening substantial property damage with the intent of interrupting public access to a portion of a building is a CIMT.” The court also affirmed Matter of G-G-S- and determined that the agency need not consider a petitioner’s mental health when determining whether the petitioner has been convicted of a particularly serious crime.
The full text of the extremely sad case of Birhanu v. Wilkinson can be found here:
The Eighth Circuit has joined the Ninth Circuit in finding that a petitioner’s mental health struggles must be considered by the agency when determining if a petitioner has been convicted of a particularly serious crime. “However, we fail to understand how a petitioner’s mental health can never be relevant to the circumstances and underlying facts”of the conviction, especially, as the BIA noted, in light of the impact mental illness can have on an individual’s behavior. As such, we find that the BIA’s categorical bar of consideration of mental health evidence, as contemplated in Matter of G-G-S-, is an arbitrary and capricious construction of 8 U.S.C. § 1231, and we reject such a categorical evidentiary bar in the particularly serious crime analysis.”
The full text of Shazi v. Wilkinson can be found here:
The Third Circuit has remanded a case in which the agency determined a fraud conviction resulting in losses to the victims in excess of $1,000,000 was a particularly serious crime without considering whether the elements of the offense bring the conviction within the ambit of a particularly serious crime. The court also determined that the Immigration Judge had not specified what corroborating evidence she believed was missing, nor given the applicant a chance to obtain that evidence. This error also required remand.
The full text of Luziga v. Attorney General can be found here:
In a departure from prior precedent, the Third Circuit has determined that the particularly serious crime bar, as applied in both the asylum and withholding of removal contexts, includes non-aggravated felonies. The court concluded that in the asylum context, (1) aggravated felonies are a subset of offenses that constitute particularly serious crimes; (2) the Attorney General has the authority to designate other offenses as per se particularly serious; and (3) the Attorney General retains the authority, through a case-by-case evaluation of the facts surrounding an individual alien’s specific offense, to deem that alien to have committed a particularly serious crime. Similarly, the withholding context, aggravated felonies are a subset of particularly serious crimes and Congress has deemed one subset of aggravated felonies, namely those for which the alien was sentenced to at least five years, particularly serious per se.
The full text of Bastardo-Vale v. Attorney General can be found here:
The Ninth Circuit has determined that a sentencing enhancement can be considered when determining whether a petitioner has been convicted of a per se particularly serious crime (i.e., whether it is an aggravated felony for which a sentence of at least five years was imposed).
The full text of Mairena v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/15-72833.pdf
The Ninth Circuit has revisited its jurisprudence regarding whether the particularly serious crime bar is unconstitutionally vague. The court recognized that the Supreme Court’s most recent case law on vagueness rules out the legal standard that‘a statute is void for vagueness only if it is vague in all its applications. Nevertheless, even with this updated case law in mind, the court found the statute not to be unconstitutionally vague.
“We know with certainty that a minor traffic infraction is not particularly serious and that a heinous, violent crime is particularly serious. But for the crimes in between, the statute provides little guidance. Instead, the statute provides an uncertain standard to be applied to a wide range of fact-specific scenarios. In that sense, the standard is uncertain. But that kind of uncertainty does not mean that a statute is unconstitutionally vague. Many statutes provide uncertain standards and, so long as those standards are applied to real world facts, the statutes are almost certainly constitutional.”
“Critically, the particularly serious crime inquiry in 8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts. Unlike many standards in the immigration context, the particularly serious crime inquiry requires the BIA to assess what the alien actually did.”
The full text of Guerrero v. Whitaker can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/09/15-72080.pdf
The Ninth Circuit has rejected the Board of Immigration Appeals' (Board) categorical rule, established in Matter of G-G-S-, that an adjudicator may not consider a petitioner's mental health condition when determining whether he has been convicted of a particularly serious crime. "This decision is contrary to Congress’s clearly expressed intent that the analysis of whether a crime is particularly serious requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress, because such categorical rules undermine the ability of the agency to conduct a case-by-case analysis in each case."
"The IJ is not retrying the question of guilt but assessing whether the circumstances of the crime are so serious as to justify removal to a country where there is a significant risk of persecution. Therefore, an IJ, as a fact finder focused on that question, may choose to examine what he or she deems reliable evidence of mental health and decide whether such evidence bears on the dangerousness determination, and ultimately whether the individual committed a particularly serious crime, without disturbing, or 'reassessing' the criminal court’s findings."
"Second, the Board’s concerns about 'going behind' a conviction are unreasonable given that, pursuant to various provisions of the INA, IJs regularly scrutinize the factual circumstances surrounding crimes of conviction."
"Third, the Board’s assumption that consideration of mental health would implicate reassessment of the criminal court’s finding is flawed because the mental health evidence the individual wishes to offer in the immigration court may never have been presented to the criminal court. For example, no specific mental state is required as an element of strict liability offenses, and similarly, mental illness is not a defense to crimes that require only negligence; and at sentencing judges may exercise their discretion and choose not to consider mental illness in making their decision."
The Court also recognized that the decision in G-G-S- is inconsistent with the Board's caselaw permitting an adjudicator to consider "all reliable information" when making a particularly serious crime determination. Finally, the Court disagreed with the Board's determination that mental illness is never relevant to the particularly serious crime assessment because it is inconsistent with the Board's precedent recognizing the relevance of motivation and intent to the particularly serious crime determination and fails to recognize that mental illness bears on intent.
The full text of Gomez-Sanchez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/06/14-72506.pdf
The First Circuit remanded a case for the application of pre-1997 standards. The Board of Immigration Appeals determined that an applicant in deportation proceedings had been convicted of a particularly serious crime. Noting that the court had not yet determined whether pre-1997 law on particularly serious crimes would include non-aggravated felonies, the Court remanded the case for the agency to address this issue in the first instance.
The full text of Velerio-Ramirez v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2318P-01A.pdf
Edin Avendano-Hernandez was repeatedly beaten, sexually assaulted, and verbally abused by relatives and police officers because she is a transgender woman. While in the United States, she was twice convicted of DUI-related offenses, including one DUI involving bodily injury. The Ninth Circuit affirmed the agency's determination that this conviction was a particularly serious crime, noting that DUI crimes are inherently dangerous, and that Avendano-Hernandez inflicted injuries (albeit relatively minor ones) on the driver of another car. The Ninth Circuit did note that it was improper to characterize an additional sentence imposed for a probation violation as a sentencing enhancement, but found that the agency's error on this point was harmless.
Turning to Avendano-Hernandez's application for protection under the Convention Against Torture, the Ninth Circuit disagreed with the agency's finding that she failed to show that the Mexican government would more likely than not consent to or acquiescence in her torture. The court noted that Avendano-Hernandez had already been raped by government officials, and that rape was itself a form of torture. Thus, because she had already been tortured by government officials, she need not make any of government acquiescence to torture by private individuals. Turning to the issue of future torture, the Ninth Circuit chastised the agency for conflating laws that protect the gay and lesbian community with government protection of the transgender community. "While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct." Given that Mexico has one of the highest transgender murder rates in the world, the Ninth Circuit determined that Avendano-Hernandez was entitled to protection under the Convention Against Torture.
The full text of Avendano-Hernandez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/03/13-73744.pdf
