OC Immigration Attorney

RUIZ-VIDAL v. Gonzales

Issue Presented

Whether the Department of Homeland Security has met its burden of proving that the petitioner is removable from the United States as an alien convicted of a law relating to a controlled substance?

Facts

Jose Ruiz-Vidal is a 49 year-old Mexican national who legally immigrated to the United States in August 1976. On October 26, 1998, Ruiz-Vidal pleaded nolo contendere in California Superior Court to one count of criminal possession of methamphetamine, in violation of Cal. Health & Safety Code § 11377(a) (the “1998 conviction”). Thereafter, the government sought to have Ruiz-Vidal removed from the United States on the basis of this conviction.

On February 10, 2003, Ruiz-Vidal was charged in California Superior Court with one count of violating Cal. Health & Safety Code § 11378 (possession of a controlled substance for purpose of sale) and one count of violating Cal. Health & Safety Code § 11379(a) (transportation of a controlled substance).

The Department of Homeland Security (“DHS”) commenced removal proceedings against Ruiz-Vidal on December 16, 2003 with the issuance of a Notice to Appear, alleging that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). That section renders removable an alien convicted of an aggravated felony as defined in 8 U.S.C.§ 1101(a)(43)(B), an offense relating to the illicit trafficking in a controlled substance, as described in Section 102 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 802.

On March 11, 2004. The IJ determined that the convictions involved methamphetamine. Accordingly, the IJ ordered that Ruiz-Vidal be removed to Mexico.

Ruiz-Vidal appealed the decision of the IJ to the Board of Immigration Appeals (“BIA” or “Board”). On July 22, 2004, the BIA affirmed without opinion the IJ’s order that Ruiz-Vidal be removed from the United States to Mexico. Thereafter, Ruiz-Vidal filed a “Motion to Reconsider” with the BIA. Ruiz-Vidal filed a timely petition for review to this court.

Rule

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true. [The underlying controlled substance (conviction) under Cal. Health & Safety Code § 11377(a)]

Analysis

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true.” Gameros-Hernandez v. INS, 883
F.2d 839, 841 (9th Cir. 1989). In this case, Ruiz-Vidal was charged with removability on the basis of his conviction of a controlled substance offense. 8 U.S.C. § 1227(a)(2)(B)(i).

The plain language of the statute requires the government to prove that the substance underlying an alien’s state law conviction for possession is one that is covered by Section
102 of the CSA.

Thus, in order to prove removability, the court considered whether Ruiz-Vidal’s 2003 conviction may serve as the predicate offense for his removal as an alien convicted of a law relating to a controlled substance? The court quickly answered no because Ruiz-Vidal previously was found removable on the basis of the conviction, but was granted cancellation of removal. 8 U.S.C. § 1229b. Thus, the government may not use the conviction again as a predicate removal offense.

Next, the court looked at the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime?

In undertaking an analysis of the record of conviction, the court “may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002). In reviewing the administrative record in this case, the court looked to the only two documents relating to Ruiz-Vidal’s 2003 conviction. The first, charged Ruiz-Vidal with two crimes: (1) a violation of Cal. Health & Safety Code § 11378 (possession for purpose of sale); and (2) a violation of Cal. Health & Safety Code § 11379(a) (unlawful transportation). In both counts, the charging document lists the controlled substance underlying the conviction as methamphetamine. The other document in the record is an abstract of judgment which states that Ruiz-Vidal pleaded nolo contendere to a single charge of violating Cal. Health & Safety Code § 11377(a). The crime is described as “Possess Controlled Substance.”

The court concluded that there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code § 11377(a) by relying on an analogous case; Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). In Martinez-Perez, only three documents were before the court: (1) an information charging the defendant with second-degree robbery in violation of § 211 of the California Penal Code; (2) a minute order memorializing a probation violation hearing; and (3) an abstract of judgment documenting the defendant’s plea to a violation of § 487(c) of the California Penal Code. Id. at 1028-29. The court held that based upon those documents, it was not possible to determine whether the defendant had pleaded guilty to all elements of a theft offense, as generically defined. The court reasoned that because the defendant had pleaded guilty to an offense different from the one charged in the information, “the information . . . is not the sort of ‘generically limited charging document’ indicating that the plea necessarily rested on the fact identifying the burglary as a generic theft offense.”

Here, similar to Martinez-Perez, Ruiz-Vidal did not plead guilty to an offense that was charged in the information. Here also, the administrative record contains no plea agreement, plea colloquy, or any other document that would reveal the factual basis for Ruiz-Vidal’s 2003 conviction. Applying Martinez-Perez, the court concluded “there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code§ 11377(a).”

Thus, the court was only left only to speculate as to the nature of the substance. Stating that “speculation is not enough, the court, therefore, conclude that DHS has failed to establish unequivocally that the particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a controlled substance as defined in section 102 of the Controlled Substances Act.

Holding

Department of Homeland Security failed to establish unequivocally that the particular substance, which Ruiz-Vidal was convicted of possessing in 2003, is a controlled substance as defined in section 102 of the Controlled Substances Act.

Conclusion

Thus, because the judicially noticeable documents in this case fail to support the BIA’s determination that Ruiz-Vidal is removable as an alien convicted of a law related to a controlled substances offense, the court reversed the order of removal.

MORALES-GARCIA v. Holder

Facts and procedural History

Morales, a native and citizen of Mexico, entered the United States without inspection in September, 1986. In 2006, the Department of Homeland Security (“DHS”) served a Notice to Appear (“NTA”) on Morales, alleging that he was subject to removal on two grounds: first, for being an alien present in the United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), and second, for having been convicted of a CIMT. § 1182(a)(2)(A)(i)(I). It was alleged that on April 10, 2003, Morales was convicted in California Superior Court “for the offense of corporal injury to spouse/ cohabitant/former cohabitant/child’s parent, a Felony, in violation of Section 273.5(a) of the California Penal Code for which the term of imprisonment was two . . . years . . . .” At his hearing before the IJ, Morales conceded removability; however, he denied the fact of his conviction under Cal. Penal Code § 273.5. Morales pleaded guilty to a violation of § 273.5(a), and the court imposed a low term of 2 years, doubled to 4 years, under California’s habitual offender statute, Cal. Penal Code § 667(b)-(i).
The IJ sustained the factual allegations in the NTA and, based on that determination, the IJ also sustained the charge of removability on the ground that Morales had been convicted of a CIMT. The IJ then entered an order of removal. Morales timely appealed to the BIA, which dismissed the appeal in a per curiam order.

Issues

1. Whether the BIA erred in affirming the IJ’s determination that Morales’ conviction under Cal. Penal Code § 273.5(a) qualifies as a CIMT, both for purposes of determining his inadmissibility, see 8 U.S.C. § 1182(a)(2)(A)(i)(I), and his ineligibility for cancellation of removal. § 1229b(b)(1)(C).

Rule(s)

1. An alien convicted of a CIMT is ineligible for cancellation of removal by virtue of the conviction itself (§ 1229b(b)(1)(C)), and because such a conviction precludes a finding of good moral character required by § 1229b(b)(1)(B).

Holding

1. Morales’ conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant is not categorically a CIMT within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I)
and § 1229b(b)(1)(C).

2. Grant Morales’ petition for review, reverse the decision of the BIA, and remand for
further proceedings consistent with this opinion.

Reasoning

To determine whether a conviction is for a crime involving moral turpitude, the court applied the categorical and modified categorical approaches established by the Supreme Court in Taylor v. United States. See: Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007) (enbanc) (citing Taylor v. United States, 495 U.S. 575, 599-602 (1990)).

Categorical Approach:

A. Definition of crimes involving moral turpitude

The court had to first determine whether a crime involves moral turpitude is determined by the statutory definition or by the nature of the crime and not by the specific conduct that resulted in the conviction. The categorical approach requires the court to “compare the elements of the statute of conviction to the generic definition [of moral turpitude], and decide whether the conduct proscribed . . . is broader than, and so does not categorically fall within, this generic definition. The court observed that there are no statutorily established elements for a crime involving moral turpitude (The court has previously defined ‘moral turpitude’ as involving conduct that is inherently base, vile, or depraved, and contrary to the private and social duties man owes to his fellow men or to society in general) See: Navarro-Lopez. Therefore, the test to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.

Under the categorical approach, the court answered the question of “whether all of the conduct prohibited by [the statute] is morally turpitudinous.” The court answered this question by looking at Cal. Penal Code § 273.5(a). Although the California Supreme Court has yet to interpret § 273.5(a), numerous California Court of Appeal decisions informed the court’s analysis.

B. Cal. Penal Code § 273.5(a)

The statute provides, in relevant part:
(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine
of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

(c) As used in this section, “traumatic condition” means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force… Cal. Penal Code § 273.5.

In accord with the California courts’ interpretation of this statute, the standard California jury instruction lists the following three elements of the offense:
1. A person inflicted bodily injury upon [[his] [her][former] spouse] [a [former] cohabitant] [the [mother] [or] [father] of [his] [her] child];
2. The infliction of bodily injury was willful [and unlawful]; and
3. The bodily injury resulted in a traumatic condition. CALJIC 9.35, Cal. Jury Instructions — Criminal (2008).

C. Categorical analysis of § 273.5(a)

The court then compared the elements of § 273.5(a) to the generic definition of moral turpitude provided above, noting that the court previously held that spousal abuse under § 273.5(a) is a crime involving moral turpitude. See Grageda, 12 F.3d at 922.

The court mentioned that its past decisions make clear that assault and battery, without more, do not qualify as CIMTs. See Fernandez-Ruiz, 468 F.3d at 1165.  Such offenses, however, may transform into CIMTs if they necessarily involved aggravating factors that significantly increased their culpability, such as “the intentional infliction of serious bodily injury on another” or “infliction of bodily harm upon a person whom society views as deserving special protection . . . .” Otherwise non-morally turpitudinous conduct targeted at a victim with whom the defendant has a special relationship may transform a crime into one involving moral turpitude.

Furthermore, the court reasoned that because all that is required to establish cohabitation is the existence of a “substantial, amorous relationship and, perhaps, a sporadic shared living arrangement, it stands to reason that many individuals have many former cohabitants. Noting, that not all of these individuals are committed to, trust, or depend upon, each other. Thus, not all victims under the statute are particularly “vulnerable,” nor are they entitled to care and protection by the perpetrator. Because some perpetrator-victim relationships covered by the statute are more akin to strangers or acquaintances, which, depending on the wording of the statute, does not necessarily trigger a crime of moral turpitude, the court held that this aggravating factor cannot, alone, transform § 273.5(a) into a crime categorically involving moral turpitude.

Note: Because the victims covered by § 273.5(a), as interpreted by the state courts, is overly-broad, we need not examine petitioner’s other contentions respecting the statute’s “evil intent” requirement, or extent-of-injury requirement.

II. Modified Categorical Approach

The court then analyzed whether even if a statutory offense fails to qualify as a CIMT under the categorical approach, in most cases, it is still possible that the crime of conviction at issue can qualify as a CIMT under the modified categorical approach.

In this case, the BIA concluded that § 273.5(a) was categorically a CIMT. It thus never made a determination under the modified categorical approach whether Morales’ offense qualifies as a CIMT. Rather than make that determination in the first instance, the court remanded to the agency to address the modified categorical approach. See INS v. Ventura, 537 U.S. 12, 16 (2002).

Conclusion: Reversed and Remanded.

FACTUAL AND PROCEDURAL BACKGROUND

Manuel Oliveira was a permanent resident alien who was ordered removed to Portugal after his 1998 conviction in California state court for possession of methamphetamine. Oliveira is a native and citizen of Portugal who was admitted to the United States in 1966, at age eleven, as a lawful permanent resident alien. Both of his children are United States citizens, and his parents and siblings are either United States citizens or permanent resident aliens.

In August 1994, Oliveira pled guilty in Wyoming state court to three misdemeanors: driving with a suspended license, carrying a concealed weapon, and possession of marijuana.

In May 1998, Oliveira pleaded guilty to possession of a controlled substance, methamphetamine, in violation of California Health and Safety Code § 11377(a). The statute provided that offenders “shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison.” Cal. Health & Safety Code § 11377(a) (1998). The court sentenced Oliveira to four months in the county jail and three years’ probation.

After Oliveira had finished serving his jail sentence, the Immigration and Naturalization Service (“INS”) placed him in a detention facility in Eloy, Arizona, and initiated removal proceedings against him.

Oliveira then filed a habeas petition. The district court denied Oliveira’s habeas petition because under our cases interpreting the federal sentencing guidelines, an offense is an aggravated felony if it (1) is prohibited under the federal Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904, and (2) is punishable by more than one year of imprisonment under federal or state law. The court found that possession of methamphetamine is prohibited under 21 U.S.C. § 844(a), and that under California law the crime is punishable by more than one year’s imprisonment. The district court therefore concluded that Oliveira’s 1998 conviction for possession of methamphetamine was an aggravated felony.

Issue

The issue on appeal was whether the district court erred in concluding that a violation of California Health and Safety Code § 11377 is an aggravated felony.

Rule

A state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of “drug trafficking crime,” or is a crime involving a trafficking element.

Holding

1) Manuel Oliveira’s California conviction for methamphetamine possession would not be punishable as felony under Controlled Substances Act (CSA);
2) such conviction did not contain trafficking element; and
3) even if such conviction would be punishable as felony under CSA or had trafficking element, it still would not be aggravated felony, since it was for “wobbler” offense and Mr. Oliveira was sentenced to county jail.

Reasoning

In the criminal sentencing context, the court held that a drug offense is an aggravated felony if it (1) is punishable under the CSA, and (2) is a felony. To determine whether an offense is a felony, the court examines whether the crime is punishable by more than one year imprisonment under applicable federal or state law. Id. at 903-04. A state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the CSA or other federal drug laws named in the definition of “drug trafficking crime,” or is a crime involving a trafficking element.

In determining whether Oliveira’s 1998 state drug offense is an aggravated felony, therefore, the court asked whether Oliveira’s conviction for possession of a controlled substance would be punishable as a felony under the CSA. A violation of California Health and Safety Code § 11377 would not be a felony because under the CSA, the maximum penalty for possession of a generic controlled substance is one year. 21 U.S.C. § 844(a).  And, because Mr. Oliveira’s 1998 drug offense carried a maximum penalty of one year, it could not be considered a felony.
Next, the court determined that Mr. Oliveira’s conviction for possession of a controlled substance did not contain a trafficking element. See Cal. Health & Safety Code § 11377. Thus, the district court erred in holding that Oliveira had committed an aggravated felony.

The court also noted that even if “we were to consider whether a violation of § 11377 is punishable by more than one year’s imprisonment under California law,” Oliveira’s 1998 conviction would still not constitute an aggravated felony because the statute provides that offenders “shall be punished by imprisonment in a county jail or state prison,” the California Penal Code provides that “[w]hen a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes,” if a state prison term is not imposed. Cal.Penal Code § 17(b)(1). See also: Cal. Health & Safety Code § 11377(a). Thus, § 11377 is a “wobbler” offense that the court may sentence as a misdemeanor. Once the state court sentenced Oliveira to a county jail term rather than a term in the state prison, the offense automatically converted from a felony into a misdemeanor for all purposes.

CONCLUSION

Oliveira’s 1998 conviction does not constitute an aggravated felony under federal law, and he was therefore eligible for cancellation of removal under 8 U.S.C. § 1229b(a). Although Oliveira has already been removed to Portugal, he was never allowed the opportunity to apply for cancellation of removal, an opportunity he would have had had he not been erroneously classified as an aggravated felon. Therefore, we remand to the district court with instructions to grant Oliveira’s petition for a writ of habeas corpus directing that the BIA consider on the merits his application for cancellation of removal, which, if successful, will enable him to return to the United States.

Facts:
Vasquez-Hernandez is a native and citizen of Mexico. He entered the U.S. without inspection in 1988. He was convicted of corporal injury to a spouse in 2002. On August 9, 2002, the Immigration and Naturalization Service (INS) placed him in removal proceedings. Vasquez-Hernandez conceded removability.

In 2004, the IJ rejected Vasquez-Hernandez’s cancellation of removal request and held that he was “statutorily ineligible” because his conviction was for a crime of domestic violence as stated in 8 U.S.C. Section 1227(a)(2)(E).

IJ denied his motion to reopen after ruling that the petty offense exception in 8 U.S.C. section 1182(a)(2)(A)(ii) did not apply to his conviction.

Procedural Posture:
BIA adopted the IJ’s decision and denied Vasquez-Hernandez’ motion to reopen.
He filed a petition for review with the 9th Circuit.

Issue:
Whether the petty offense exception in 8 U.S.C. Section 1182(a)(2)(A)(ii) is applicable to an 8 U.S.C. Section 1229(b) cancellation of removal request if that request is otherwise barred by an alien’s conviction for an offense described in section 1227(a)(2) or section 1227(a)(3).

Holding:
Denied Vasquez-Hernandez’ petition for review of BIA’’s order denying his motion to reopen.

Rule:
The petty offense exception is not applicable to section 1227(a)(2) domestic violence offense for cancellation of removal regardless of whether the conviction may meet the petty offense exception requirements.

Reasoning:
Vasquez-Hernandez was convicted of a crime under the “plain terms of section 1229(b),” a domestic violence crime. The Ninth Circuit reasoned that the petty offense exception statute did not reference section 1227(a)(2) or section 1229b(b). There was no other statutory basis for applying the petty offense exception here.

If you or a loved one is in removal or deportation proceedings in immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you on a confidential basis to help you better understand the options available to you.

Facts:
Sinotes-Cruz entered the U.S. without inspection in 1981. He was granted lawful temporary resident status in 1988, and lawful permanent resident status in June 1990. In 1993, Sinotes-Cruz pled guilty to two counts of attempted aggravated assault.  In 1997 he pled guilty to a crime of child abuse.

On October 2000, the former Immigration and Naturalization Service (INS) served him a Notice to Appear and placed him in removal proceedings on two grounds: 1) conviction of 2 crimes involving moral turpitude (CIMT) not arising out of a single scheme; 2) conviction of the crime of child abuse in 1997.  An additional third charge of removability was added for conviction of CIMT, committed within 5 years of admission, and for which a sentence of one year or longer could have been imposed. Sinotes-Cruz conceded to his removability based on these two charges.

Procedural Posture:
IJ entered an order of removal allowing voluntary departure. IJ further held that he was ineligible for cancellation of removal due to the stop-time rule of Section 1229b(d)(1) of the Act. The BIA affirmed and held that IJ properly applied the stop-time rule. Sinotes-Cruz petitioned for review of BIA’s order of his removal.

Issue:
Whether part B of section 1229(a) of the Act applies retroactively to Sinotes-Cruz to stop his accrual of the seven years of continuous residence (a requirement for cancellation of removal for certain permanent residents) after only five years.

Holding:
Grant the petition and remand to BIA.
9th Circuit held that Sinotes-Cruz is removable, and that the permanent stop-time rule of part B of Section 1229b(d)(1) does not apply retroactively to stop his accrual of seven years of continuous residence under section 1229b(a)(2).

Rule:
Permanent stop-time rule of part B of Section 1229b(d)(1) may not be applied retroactively to stop the accrual of seven years of continuous residence requirement for cancellation of removal for certain permanent residents as stated in INA section 240A(a)(2).

Reasoning:
The 9th Circuit applied a two-part analysis under Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229  (1994). The first step was to determine whether Congress gave a clear indication that the stop-rule was to be applied retroactively to the seven-year continuous residence requirement for COR.  It was determined to be “ambiguous” so the Court moved to the second step of the analysis: whether the statute would have an impermissible retroactive effect. The Court depended on the Supreme Court decision in INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) where the U.S. Supreme Court reasoned St. Cyr was eligible for a relief (waiver of deportation Section 212(c)) although the relief was absolved later, mainly because St. Cyr pled guilty in reliance of the waiver’s availability.  This 9th Circuit Court also cited United States v. Leon-Paz, 340 F.3d 1003, 1004 (9th Cir. 2003) where, at the time of Leon-Paz’ plea of guilty, he was eligible for Section 212(c) relief, but was absolved by the enactment of IIRIRA. Relying on St. Cyr, the 9th Circuit held in Leon-Paz that Section 212(c) relief was available to him retroactively.

The 9th Circuit reasoned that, like Leon-Paz, the repeal of section 212(c) and the application of the permanent stop-time rule to the seven-year period, respectively, were unforeseeable at the time of the guilty pleas.  In both cases, they gave up the right to go to trial by pleading guilty with a reasonable expectation that the pleas would not affect their immigration status. Finally, the Court stated that the retroactive application of the stop-time rule would have serious adverse consequence for Sinotes-Cruz.

If you are in removal proceedings due to a criminal conviction, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you during a confidential consultation and help you better understand the removal process in immigration court.

The Ninth Circuit opinion in De Osorio v. Mayorkas expands the interpretation of the Child Status Protection Act (“CSPA”) to protect a larger group of aged out alien children.

CSPA, which became law in 2002, ensures that an alien does not lose “child” status due to administrative delays in the processing of his parent’s visa petition. CSPA reconstructs a alien child’s age by taking the child’s age on the date that a visa becomes available and subtracting the number of days in the period during which the applicable petition was pending. If an alien beneficiary’s “age” remains over 21 years after application of the formula, section (h)(3) provides further protection for the alien child by allowing a new petition to be filed for the alien child by a new petitioner while still retaining the original petition’s priority date. This is important because it can save the child several years of waiting for a visa to become available. Before De Osorio, USCIS interpreted the (h)(3) retention policy to only protect children of lawful permanent residents (category F2A) who turned 21 years of age and became unmarried sons and daughters (over 21 years) of lawful permanent residents (category F2B).

In De Osorio, there were three plaintiffs. Their fact patterns help to illustrate who benefits from the De Osorio decision.

In 1998, De Osorio’s mother filed an F3 visa for De Osorio (married daughter of a US citizen), whose son was 13 years old at the time of the filing. By the time the visa became available for De Osorio in 2005, her son was over 21 years old. De Osorio filed a visa petition for her son (as an unmarried son of a lawful permanent resident) and requested that the son retain the 1998 priority date. USCIS refused, resulting in the son likely waiting several more years until he could immigrate to the United States.

The second plaintiff, Teresita Costelo, was a beneficiary of an F3 visa filed by her citizen mother in 1990. At the time of the filing, she had two daughters aged ten and thirteen. By the time Costelo received her visa in 2004, her daughters had aged out and were over 21 years of age. Costelo filed F2B visa petitions for her daughters as daughters of a lawful permanent resident over the age of 21 and asked USCIS to retain the 1990 priority date. USCIS refused.

Lorenzo Ong’s sister, a US citizen, filed an F4 visa petition for Lorenzo as the brother of a US citizen in 1981. At the time of the filing, Lorenzo had two daughters, ages 2 and 4. In 2002 (over twenty years later), the visa became available for Ong, but his daughters were over 21 years of age. Ong became a lawful permanent resident and filed a visa petition for his daughters. He requested that the girls retain the 1981 priority date, but USCIS refused.

The government argued that the change in the petitioner forecloses the possibility of automatic conversion and priority date retention, but the Ninth Circuit held that “the CSPA contains no indication that Congress intended the identity of the petitioner to be relevant. We do not find the fact that an automatically-converted visa petition may entail a new petitioner to be the kind of ‘rare and exceptional circumstance’ that renders the plain meaning of a statute impracticable.”

The De Osorio decision is an important opinion with far-reaching consequences that will likely benefit countless immigrant families. If you are interested in how this decision might benefit you, please contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand whether you or your child’s immigration case is positively affected.

“In contrast to the defendants in Ruiz-Vidaland Martinez- Perez, Cabantac confirmed three times during his plea colloquy that he was pleading guilty to count one of the complaint. Count one specified that the substance Cabantac possessed was methamphetamine.”

“Cabantac contends that his conviction cannot support the finding that he was convicted of a controlled substance offense because, under People v. West, 477 P.2d 409 (Cal. 1970),a guilty plea to an offense does not necessarily mean the defendant admitted all the facts alleged in the indictment. Where a defendant pleads guilty to a state offense that is broader than the generic federal crime as in Ruiz-Vidal,and not to a count in the indictment as Cabantac did here, Cabantac’s argument makes sense. But here the record is clear that Cabantac pleaded guilty to possession of methamphetamine, a controlled substance offense that supports the order of removal.”

Summary:   Aliens not lawfully in the United States cannot sue federal agents for monetary damages based on a claim of wrongful detention pending deportation, given the extensive remedial procedures available to and invoked by them and the unique foreign policy considerations implicated in the immigration context.

Mirmehdi v. United States

The Ninth Circuit drastically lessened the impact of aggravated felonies with its decision in Ledezma-Garcia v. Holder. The Ninth Circuit Court of Appeals held that a conviction occurring prior to November 18, 1988 cannot be the basis of deportation proceedings charged under INA 237(a)(2)(A)(iii). The Ninth Circuit overruled Matter of Lettman, which was a BIA case from 1998.

INA 101(a)(43) still defines aggravated felony to include convictions occurring prior to November 18, 1988. In sum, if an alien committed a crime before November 18, 1988 and the crime fits the definition of aggravated felony under INA 10(a)(43), the conviction cannot be a ground for deportation proceedings under INA 237(a)(2)(A)(iii), but the conviction will still be considered an aggravated felony conviction.

When trying to establish good moral character, an aggravated felony conviction occurring after November 29, 1990 is a permanent bar. The Ledezma case did not change this. For naturalization applicants, the Ledezma decision did not change the situation. If a naturalization applicant has been convicted of an aggravated felony after November 29, 1990, that person will still have a permanent bar to naturalization.

In the context of asylum, a person convicted of an aggravated felony is not eligible for asylum because such a conviction is considered a “particularly serious crime” under the immigration laws. The Ledezma decision does not appear to change this interpretation.

If you are considering naturalization or are currently in immigration court proceedings and want to better understand how your conviction history might affect your immigration status, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you during a free consultation to discuss your situation.

Nunez-Reyes v. Holder, U.S. Court of Appeals for the Ninth Circuit (July 14, 2011)

On July 14, 2011, the 9th Circuit released the Nunez-Reyes v. Holder decision pertaining to expunged state court convictions and whether such convictions are considered “convictions” for federal immigration purposes.

Facts

Petitioner, Flavio Nunez-Reyes, was convicted in state court of one felony count of possession of methamphetamine and one misdemeanor count of being under the influence of methamphetamine. He pleaded guilty to both counts, but the state court dismissed and set aside both charges under California Penal Code section 1210.1(e)(1). In 2002, the government issued a notice to appear, charging Favio with being removable. He applied for adjustment of status and cancellation of removal but was denied all forms of relief by the Immigration Judge.

Relevant Immigration Law History

Nunez-Reyes deals with the conflict between Congress’s definition of “conviction” and the ruling in Lujan-Armendariz. In 1996, Congress enacted changes to the immigration laws, including a new definition of the term “conviction” as stated in8 USC section 1101(a)(48)(A). In Lujan-Armendariz, the Ninth Circuit held that a state conviction, later expunged, was not a “conviction” under the Federal First Offender Act (“FFOA”) since FFOA mandated that expunged federal convictions “shall not be considered a conviction.” That court could not find a reason for Congress to distinguish expunged federal convictions and expunged state convictions. Therefore, Lujan-Armendariz announced, “equal protection requires us to treat the expungement of state conviction for simple possession in the same manner” as the expungement of a federal conviction for simple possession.

Procedural History

IJ denied all forms of relief and ordered Petitioner removed, holding that petitioner’s state convictions rendered him ineligible for any form of relief even though the state court later dismissed the convictions.

BIA affirmed, determining that “a controlled substance conviction precludes immigration relief as a matter of law.”

Here, the Ninth Circuit Court reviewed de novo BIA’s holding  (*mainly to address the Lujan-Armendariz holding)

Issues

Whether a state-court conviction for a simple-possession drug crime, later expunged by the state court, constitutes a “conviction” for federal immigration purposes?

Whether the new rule will apply just prospectively?

Whether Flavio’s petition is denied despite the new rule which only applies prospectively?

Holding

Yes, this decision overrules the equal protection ruling in Lujan-Armendariz. Nunez-Reyes held that the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA.

Yes, the new rule will only apply prospectively for convictions after the publication date of Nunez-Reyes (July 14, 2011)

Yes, Flavio’s petition is still denied under the rule in Lujan-Armendariz since the Lujan-Armendariz court held that an expunged conviction for simple possession did not constitute a “conviction” for immigration purposes. Here, Flavio was convicted also for being under the influence of methamphetamine which is a greater offense than mere possession.

Rule

For convictions after the publication date of Nunez-Reyes decision (July 14,2011), a state-court conviction for a drug crime, later expunged by the state court, can now constitute a “conviction” for immigration purposes. See definition of conviction in 8 USC Sec 1101(a)(48)(A).

Reasoning

The Court applied the rational basis test and found that Congress had a rational basis for exclusively pinpointing federal convictions, later expunged, to be dismissed under the FFOA since federal convictions were perhaps “unlikely to present a substantial threat of committing subsequent serious crimes.” Quoting Acosta, 341 F.3d at 227. Also, the concurring opinion by Judge Graber in Nunez-Reyes stating that Congress may not have wanted to recognize any state expungements rather than adopt a piece-meal approach to various jurisdictions.

Therefore, the Court held that the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA.

If you or a loved one is currently in deportation or removal proceedings, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will meet with you personally during a free and confidential consultation to discuss your situation and whether The Nunez Firm may be able to help.