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Viewing entries tagged
retroactivity
The Board of Immigration Appeals has determined that its requirement that a respondent object to an incomplete Notice to Appear before the close of pleadings is not a new rule, and as such, the decision in Matter of Fernandes applies retroactively.
The full text of Matter of Larios-Gutierrez de Pablo and Matter Pablo-Larios can be found here:
The Second Circuit has declined to give retroactive effect to New York’s sentencing reform for misdemeanors (reducing the maximum sentence from 365 to 364 days of incarceration) in immigration proceedings.
The full text of Vasquez v. Garland can be found here:
The Eleventh Circuit has determined that Matter of Thomas and Thompson is a reasonable interpretation of the INA and that it can be retroactively applied to sentencing modifications that pre-date the decision.
The full text of Edwards v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201915077.pdf
Am amended decision can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201915077.op2.pdf
In a shockingly awful decision that breaks with all past interpretation, the Ninth Circuit has determined that section 212(a)(9)(C)(i)(II) - the “permanent bar” related to reentry without inspection after removal - is retroactive to entries before April 1, 1997. The decision disregards past Ninth Circuit caselaw, as well as agency memorandum, which both determined that this statute only applies beginning on April 1, 1997. The court also seems to conflate the "permanent bar” with the reinstatement statute. It also finds that the question of whether someone is subject to a reinstated removal order is a question of fact, unreviewable by a federal appeals court. In sum, the decision is full of bad legal reasoning and bad legal conclusions. The only tiny ray of hope is that the Court seems to acknowledge that ICE is prohibited from reinstating a removal order before USCIS completes adjudication of a pending adjustment application.
The full text of Rivera Vega v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/08/19-71750.pdf
An order vacating this opinion (hooray!) can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/31/19-71750.pdf
The Second Circuit has determined that Matter of Soram can be applied retroactively to pre-2010 child endangerment convictions. The court further held that it held no jurisdiction to review the agency’s reliance on uncorroborated arrest reports in its discretionary denial of cancellation of removal.
The full text of Marquez v. Garland can be found here:
The Ninth Circuit has declined to apply the retroactive reduction of the maximum misdemeanor sentence in California in immigration proceedings. “It is clear that federal statutes can specify when removal is permissible and also when a cancellation of removal is warranted. We hold that those federal law standards cannot be altered or contradicted retroactively by state law actions, and cannot be manipulated after the fact by state laws modifying sentences that at the time of conviction permitted removal or that precluded cancellation. We hold that California’s amendment to § 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days for purposes of state law, cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i).”
The full text of Velasquez-Rios v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/28/18-72990.pdf
The Third Circuit has determined that the new definition of a theft-related crime involving moral turpitude articulated in Matter of Diaz Lizarraga cannot be applied retroactively.
The full text of Francisco-Lopez v. Attorney General can be found here:
The Eleventh Circuit has determined that the application of the stop-time rule to a pre-IIRIRA conviction would be impermissibly retroactive when the conviction did not render the individual deportable at the time of the plea, and when the individual would have been eligible for 212(c) relief.
“When he pled guilty to resisting an officer with violence on July 17, 1995, he would likely have known that his guilty plea would not render him immediately deportable. And but for the later enactment of the stop-time rule, that guilty plea also would not have cut off his accumulation of continuous presence towards eligibility for waiver of deportation under INA § 212(c). Thus, by pleading guilty, Mr. Rendon gave up constitutionally protected rights with the reasonable expectation that his resulting sentence would not affect his ability to remain present in this country. Applying the stop-time rule retroactively would add a new and unforeseen consequence to his guilty plea by rendering him ineligible for cancellation of removal.”
The full text of Rendon v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201910197.pdf
An amended opinion can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201910197.op2.pdf
The Third Circuit has determined that the Board of Immigration Appeals’ decision in Matter of Diaz-Lizarraga, which broadened the definition of a theft-related crime involving moral turpitude, cannot be applied retroactively to a conviction sustained before the decision in Diaz-Lizarraga.
The full text of Francisco-Lopez v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/192700p.pdf
The Board of Immigration Appeals (BIA), on remand from the Fourth Circuit, has determined that a Maryland conviction for sexual solicitation of a minor is a crime involving moral turpitude (CIMT) even though the statute does not require the defendant to know the age of the victim. The BIA held that “sexual crimes involving young children have historically been excepted from [the mens rea] requirement because the intent to achieve the immoral result is inherent in the willful commission of such an act.”
Recognizing that this a departure from past CIMT precedent, the BIA will apply it only prospectively in the Fourth Circuit. The BIA declined to determine if retroactive application in other circuits would be appropriate.
The full text of Matter of Jimenez Cedillo can be found here:
https://www.justice.gov/eoir/page/file/1252591/download
The Fifth Circuit has declined to retroactively apply the Board of Immigration Appeals’ decision in Matter of Diaz Lizarraga - which altered the definition of a crime involving moral turpitude as it applies to theft offenses - finding that doing so would impact the expectations of criminal defendants who accepted pleas to theft offenses in reliance on the prior rule.
The full text of Monteon-Camargo v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60345-CV0.pdf
The Fifth Circuit has determined that Matter of Diaz Lizarraga, which significantly widened the definition of a crime involving moral turpitude for theft offenses, cannot be applied retroactively applied to convictions entered before the date of publication of Diaz Lizarraga.
The full text of Monteon-Camargo v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60345-CV0.pdf
The petitioner was arrested for possession of AB-CHMINACA. While his criminal case pending, AB-CHMINACA was added to the federal controlled substance schedules. The petitioner subsequently pled guilty. He was later charged with inadmissibility for the conviction. He challenged that finding, arguing that penalizing him for conduct involving the substance prior to the addition of the substance to the CSA was impermissible retroactive. The Fifth Circuit agreed.
The full text of Lopez Ventura v. Sessions can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60529-CV0.pdf
The Ninth Circuit has determined that the AEDPA amendments to section 212(c) of the INA, which included barring any person convicted of an aggravated felony on or after April 24, 1996 from seeking 212(c) relief apply retroactively to criminal acts committed prior to the effective date of AEDPA, so long as the conviction was entered after the effective date. The decision included a lengthy dissent from Judge Friedland, who would have found the petitioner eligible for 212(c) relief.
The full text of Lopez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/22/15-72747.pdf
The Ninth Circuit has determined that a California felony conviction for child endangerment is a crime of child abuse. In so doing, the Court deferred to the Board of Immigration Appeals' definition of a crime of child abuse, as outlined in Matter of Velazquez-Herrera and Matter of Soram. The Court also rejected the petitioner's argument that the decision in Soram should not be applied retroactively to his conviction, finding that Soram was not a departure from prior agency precedent, but rather filled a void in unsettled law. Judge Wardlaw wrote a lengthy dissent, arguing that the definition of a crime of child abuse in Soram is not entitled to deference, and that even if it is, it should not apply retroactively to the petitioner.
The full text of Martinez-Cedillo v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/14-71742.pdf
The Ninth Circuit has determined that the Board of Immigration Appeals' (Board) new definition of a theft-related crime involving moral turpitude, outlined in Matter of Diaz-Lizarraga, is a clear break with prior precedent defining theft-related crimes involving moral turpitude, and cannot be applied retroactively to convictions that pre-date the decision in Diaz-Lizarraga. The petitioner's convictions for theft in Oregon did not require a permanent taking, as required by pre-Diaz-Lizarraga precedent.
The decision in Garcia-Martinez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/09/16-72940.pdf
The Ninth Circuit cited a recent Second Circuit decision that reached the same conclusion about the impermissible retroactive application of Diaz-Lizarraga.
The decision in Obeya v. Sessions can be found here:
The Fourth Circuit has determined that a Maryland conviction for sexual solicitation of a minor is not categorically a crime involving moral turpitude (CIMT). The court noted that the Board of Immigration Appeals' (BIA) decision in Matter of Silva Trevino (in effect at the time of the petitioner's conviction) deemed a sexual offense against a minor to be a CIMT only if the statute required the defendant to know (or should know) the victim's age. The Maryland statute at issue, however, had no such knowledge requirement. In the instant case, the BIA issued a published decision, reversing its previous precedent, and finding that a sex offense involving a minor could be a CIMT even absent a requirement that the defendant know or should know the victim's age, even if the conviction involved particularly young victims or a sufficient age difference between the victim and the defendant. The BIA deemed the petitioner's conviction to be a CIMT under this new definition.
While the Fourth Circuit recognized that the BIA has the authority to change its precedent, it emphasized that the BIA must provide a reasoned explanation for doing so. In the instant case, the BIA failed to explain its sudden departure in precedent. "Here, we are without a reasoned explanation from the Board for its change in position. And without one, we cannot know whether and how the Board has accounted for the prospect that its prior policy may have engendered serious reliance interests in aliens who pled guilty to certain sexual offenses under the Silva-Trevino regime. Because the Board’s path from the Silva-Trevino cases to Jimenez-Cedillo’s cannot reasonably be discerned, its decision is arbitrary and capricious and must be set aside."
The Fourth Circuit remanded to allow the BIA to explain its departure in precedent, and also to determine if any new definition of a CIMT could be retroactively applied to Jimenez-Cedlllo.
The full text of Jimenez-Cedillo v. Sessions can be found here:
http://www.ca4.uscourts.gov/opinions/171477.P.pdf
The Second Circuit extended the Supreme Court's decision in Vartelas v. Holder, and found that a lawful permanent resident who commits a crime before April 1, 1997, but who is not formally convicted of that crime until after April 1, 1997, is still not subject to grounds of inadmissibility for that conviction if he is returning from a brief, innocent, and casual trip abroad.
The full text of Centurion v. Sessions can be found here:
The First Circuit has determined that the IMMACT amendments to section 212(c), which barred a person convicted of an aggravated felony who served five years or more in prison from seeking a 212(c) waiver, applied to a person whose criminal conduct pre-dated IMMACT but whose conviction post-dated IMMACT.
The full text of Holder v. Sessions can be found here:
The Ninth Circuit has retroactively applied the Supreme Court's decision in Holder v. Martinez-Gutierrez, where the Court held that an applicant for cancellation of removal for lawful permanent residents cannot use a parent's years of residency in the United States to fulfill the 7-year residency requirement in the cancellation statute. The Ninth Circuit applied the Montgomery Ward retroactivity analysis, and concluded that the petitioner did not reasonably rely on its contrary decision in Cuevas-Gaspar v. Holder because multiple courts disagreed with that decision, thus putting the petitioner on notice that the decision was vulnerable.
The full text of Lemus v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/16/12-73654.pdf
