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Posts Tagged ‘cancellation of removal’

Naturalization Approved for Los Angeles Client After Years Defending Against Deportation

September 24th, 2014 No comments
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One of my Los Angeles clients was recently approved for naturalization. I began representing her five years ago when she was stopped at the airport and put into removal proceedings because she had two crimes involving moral turpitude from ten years prior. When she was a teenager she was convicted of writing bad checks – misdemeanors. When she tried to enter the US after a trip abroad, she was deemed inadmissible and put into removal proceedings.

We did a motion to change venue from Texas to Los Angeles. Then, for the next four years we pursued cancellation of removal, which was approved by an immigration judge earlier this year. After the deportation case was finished, we began the naturalization case. Everything went smoothly at the interview. The officer asked some questions about the prior convictions, but the general tone of the interview was cordial and friendly. My client will take her naturalization oath in the next month.

If you are considering the naturalization process, contact The Nunez Firm. Especially if you have a criminal conviction, you need to consult an experienced immigration attorney before filing. Otherwise, you could end up in removal proceedings, which can take many years and cost a lot of money to defend. Managing attorney Jay Nunez will personally meet with you and help you understand your position and chances for success with naturalization.

Cancellation of Removal Approved for Vietnamese Client from Garden Grove

December 8th, 2013 No comments
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We recently won an immigration court case for one of our Garden Grove clients. The case had been pending for four years, but the immigration judge ruled that my client should be granted cancellation of removal for lawful permanent resident and allowed to keep her green card.

When she was younger she committed two crimes involving moral turpitude – theft and passing a fictitious check. The first offense occurred when she was 20 years old. The second occurred about a year later. She was charged and convicted of misdemeanors. She paid the fines and completed the community service.

In 2009, she was traveling abroad with a friend. When she returned to the United States, Customs and Border Protection ran her name through the criminal checks and found her conviction records. They placed her in removal proceedings in Texas (because her flight landed in a Texas airport). She hired us shortly thereafter. We filed for a change of venue to Los Angeles, and it was granted.

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Once the case moved to Los Angeles, we pursued cancellation of removal. We provided the court with evidence that my client had turned her life around since her convictions. We showed that she is currently employed and her mother depends on her a great deal to help around the house and with the bills. We explained that if my client were deported to Vietnam, her life and her mother’s life would be extremely difficult. I prepared my client thoroughly on what to expect when testifying. She did a great job testifying and both the government attorney and judge were convinced that my client deserved a second chance. The government attorney did not ask any questions on cross-examination.

My client plans to pursue naturalization in the next couple months. If you are in removal proceedings, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand your options and which strategies might be available to you to avoid deportation.

Cancellation of Removal Approved in Los Angeles Immigration Court for Anaheim Client Despite Criminal Convictions

December 1st, 2013 No comments
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An immigration judge in Los Angeles approved my client for cancellation of removal for lawful permanent residents. My client, who lives and works in Anaheim, has resided in the United States for over fifteen years. When he was younger, he committed three theft related crimes. Although these crimes occurred more than seven years ago, he was stopped at the airport in 2009 when he was returning from a trip to Europe. He was put into immigration court proceedings and charged with being removable because he had two crimes involving moral turpitude.

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At trial, I argued that although he was deportable, he was eligible for cancellation of removal. He had been been a permanent resident for over five years and he had lived continuously in the US for over seven years. None of his crimes constituted aggravated felonies. Although he met the requirements for cancellation, we also had to convince the judge that he was worthy of a discretionary approval. There are many factors the immigration judge will consider when deciding whether a green card holder deserves to be approved for cancellation of removal. We provided evidence and testimony that he had minimal family in his home country. All of his family lived in the US. His parents rely on him for financial support and he has a good job. He testified about how much he regretted the crimes that he committed when he was younger. He took ownership of his ill-advised decision to commit the crime when he described what had happened. His family attended the hearing, and his mother and father testified on his behalf. They talked about the changes their son experienced after his last conviction – how he started working harder and spending more time with his family, how he stayed away from some of his old friends with whom he got in trouble.

I had prepped him for the trial well, and although the government attorney tried to trick him into making excuses for his crimes or not taking responsibility for them, he did an excellent job of admitting what he did and acknowledging the severity of his actions. At the end of the trial, the immigration judge stated that she was approving the case. The trial attorney for Department of Homeland Security did not reserve appeal, which means the case is closed and my client remains a permanent resident.

If you are in removal proceedings in Los Angeles, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help figure out which forms of deportation relief might work for you.

Issues to Consider Post-Windsor Regarding Same Sex Marriage, Visa Petitions and Adjustment of Status to Permanent Resident

August 9th, 2013 No comments
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On June 26, 2013, the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. The historic Windsor decision has many immigration-related implications for same sex couples. The Department of State, United States Citizenship and Immigration Services, Customs and Border Protection and the Executive Office of Immigration Review are assigned different responsibilities in the US’s immigration scheme, and each has voiced their stance on how they will interpret the Supreme Court’s Windsor decision.

On July 17, 2013, the Board of Immigration Appeals (part of the Executive Office of Immigration Review) issued the Matter of Zeleniak decision in which the BIA stated that Windsor allows the recognition of same-sex marriages for immigration purposes. The BIA held that same sex couples, post-Windsor, are entitled to be treated the same as opposite-sex couples in regards to INA 101(a)(15)(K) (fiance visas), INA 203 and 204 (immigrant visa petitions), INA 207 and 208 (refugee and asylee derivative status), INA 212 (inadmissibility waivers), INA 237 (removability waivers), INA 240A (cancellation of removal), and INA 245 (adjustment of status). The BIA held in Matter of Zeleniak that the issue of the validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage. The Court clarified that the issue of good faith marriage is still a requirement and same-sex couples as well as opposite-sex couples must prove that their relationship is bona fide.

USCIS (part of the Department of Homeland Security) has stated that US citizens married to a foreign-born same-sex spouse may petition for their spouses immediately by filing the I-130 visa petition. The petitioner’s eligibility to petition and the foreign-born spouse’s admissibility as an immigrant will be determined through the adjustment of status or consular process according to the same rules and laws that govern opposite-sex marriages and will not be automatically denied due to the same-sex nature of the marriage. When given the hypothetical case of a same-sex couple that marries in a state recognizing same-sex marriage but residing in a state that does not, USCIS states, “In evaluating the petition . . . USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question moving forward.”

The Department of State which handles the consular processing of immigrant and nonimmigrant visas has stated that as long as the marriage is recognized in the place of celebration, the DOS will regard it as a valid marriage. A same sex marriage is valid for immigration purposes even if the couple intends ultimately to reside in one of the states that do not recognize same-sex marriages. Stepchildren acquired through same-sex marriages are eligible to the same extent as stepchildren acquired through opposite sex marriage. Further, while many same-sex couples live in countries where they are unable to marry, they will be eligible to pursue the fiance visa process to wed in the United States. Once the marriage is contracted in a state permitting same-sex marriage, the couple may apply for adjustment of status and undergo the interview process. Diversity lottery applicants and their same-sex spouses are eligible to receive visas even if the same-sex spouse was not identified on the original application. Typically, Diversity Visa applicants who do not include their spouse on their initial entry are disqualified; however, due to the Windsor decision, the Department of State will allow Diversity Visa applicants to add their same sex spouses after the fact for the 2013 and 2014 fiscal years. The DOS points out that consular officers should be wary of fraud issues.

Customs and Border Protection has not been as timely with it’s implementation plans post-Windsor. According to an August 2nd release, CBP is awaiting internal guidance on how to administer the INA provisions that permit same-sex couple to seek immigration benefits at ports of entry. In practice, CBP’s influence on this issue is limited to Canadians, who are visa exempt and may seek admission without a visa directly at a port of entry as a dependent of a nonimmigrant spouse. Until official guidance is provided, it is anticipated that CBP will not admit a same-sex spouse in a dependent classification. For non-Canadian cases, the CBP officer will likely defer to the Department of State’s determination of eligibility for the classification sought.

If you are in a same-sex marriage with a foreign-born spouse, contact The Nunez Firm to schedule a consultation. We have already started preparing same sex adjustment of status cases and intend to start filing in the near future. Managing attorney Jay Nunez will personally meet with you and help you better understand the immigration laws that pertain to your situation.

Case Brief: In Re Campos-Torres (BIA 1993)

May 6th, 2013 No comments
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In re Ignacio CAMPOS-TORRES, Respondent

Issue Presented

The issue in this case is whether, under the rule stated in section 240A(d)(1) of the Act, an offense that is not “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), will stop the further accrual of continuous residence in the United States, which is required to establish eligibility for cancellation of removal.

FACTS

The respondent, a native and citizen of Mexico, was admitted to the United States as a temporary resident on May 4, 1988, and adjusted his status to that of a lawful permanent resident on December 13, 1990. It is uncontested that on September 23, 1993, the respondent was convicted in the Circuit Court of Cook County, Illinois, of a single offense of unlawful use of a weapon, in violation of chapter 38, section 24-1(a)(7) of the Illinois Compiled Statutes Annotated. The respondent was sentenced to 18 months’ probation. On June 25, 1997, the Immigration and Naturalization Service issued and served a Notice to Appear (Form I-862), commencing these removal proceedings and charging the respondent with removability under section 237(a)(2)(C) of the Act.

Rule

A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

Analysis

The plain language of section 240A(d)(1) states that, as a prerequisite, an offense must be “referred to in section 212(a)(2)” of the Act in order to stop accrual of time. The phrase “referred to in section 212(a)(2),” the court stated, “could not be more clear, and we will apply its plain meaning.” The court reasoned that they are unaware of any legislative history that would overcome the strong presumption that these words mean what they say. The court would not interpret the statue the way the Service wanted, which was any offense in sections 212(a)(2), 237(a)(2), or 237(a)(4) would operate to cut off time. Furthermore, the court reasoned that its task “is not to improve on the statute or to question the wisdom of it, but rather to interpret the language that was enacted as law.”

Another important rule of statutory construction the court used to determine the issue was the “plain meaning” of the statute. Thus, in construing the language of section 240A(d)(1) of the Act, the court must also consider the language in section 240A as a whole. The court further noted that Congress referred to grounds of inadmissibility and deportability several times throughout section 240A of the Act. For instance, section 240A(b)(1)(C) refers to sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act, stating that nonpermanent residents who have been convicted of an offense under any of these provisions are ineligible for cancellation of removal. Similarly, in delineating special rules of eligibility for battered spouses or children, section 240A(b)(2)(D) specifically states that these rules apply only to aliens who are not inadmissible under sections 212(a)(2) or (3), or deportable under section 237(a)(1)(G) or sections 237(a)(2), (3), or (4) of the Act. Thus, under sections 240A(b)(2)(D) and 240A(c)(4), any alien who is deportable under section 237(a)(4) of the Act is categorically barred from a grant of cancellation of removal. Consequently, the inclusion of this ground of deportability within section 240A(d)(1) is merely an additional reference.

Simply put, the court said, “ it would be irrelevant whether a charge of deportability under section 237(a)(4) terminates an alien’s period of continuous residence or physical presence because deportability under that charge automatically renders an alien statutorily ineligible for cancellation of removal pursuant to sections 240A(b)(2)(D) or (c)(4) of the Act.” Thus, ignoring the duplicative reference to section 237(a)(4) in section 240A(d)(1) has no impact on section 240A as a whole, because the presence or absence of that language in section 240A(d)(1) has no effect on eligibility for cancellation of removal.

Holding

Accordingly, the court found that because the respondent’s firearms offense, which rendered him deportable under section 237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not “stop time” under section 240A(d)(1).

The respondent’s period of continuous residence began when he was admitted as a temporary resident on May 4, 1988.  Therefore, the respondent has satisfied the continuous residence requirement of section 240A(a)(2).

Conclusion

The court sustained the respondent’s appeal and remand the record to the Immigration Judge for a hearing on the merits of the respondent’s application for cancellation of removal.

Case Brief: Morales-Garcia v. Holder (9th Circuit)

April 16th, 2013 No comments
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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.

Case Brief: In Re Garcia-Hernandez, 23 I&N Dec. 590 (BIA)

March 3rd, 2013 No comments
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FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who entered the United States without inspection or parole. The respondent was served a Notice to Appear on May 14, 1997, and in due course applied for cancellation of removal for nonpermanent residents and, in the alternative, for voluntary departure.

In 1997 the respondent was convicted for corporal injury to a spouse in violation of § 273.5 of the California Penal Code, for which he was sentenced to probation on the condition that he serve 90 days in custody. The IJ determined that the conviction was for a crime involving moral turpitude. The IJ further determined that the respondent was not eligible for the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), because he had not been convicted of “only one crime.” The IJ based this finding on the respondent’s 1994 conviction for battery under § 242 of Cal. Pen. Code. A crime not involving moral turpitude. The Immigration Judge accordingly found that the respondent was ineligible for cancellation of removal because he had been convicted of an offense under section 212(a)(2).

The IJ further found that the respondent could not meet the good moral character requisite under 240A(b)(1)(B) of the Act because of his 1997 conviction.

ISSUES

(1)    Whether an alien is ineligible for cancellation of removal under section 240A(b)(1) of the Act if he committed a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II); and, if not

(2)    Whether the commission of another offense that is not a crime involving moral turpitude renders the “petty offense” exception inapplicable.

RULE

1) An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

2) An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal.

3) An alien who commits a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal.

HOLDING

1. An alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted of an offense under section 212(a)(2)” of the Act.

2. An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under section 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3) (Supp. IV 1998).

3.  An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

4. The respondent, who was convicted of a crime involving moral turpitude that qualifies as a petty offense, was not rendered ineligible for cancellation of removal under section 240A(b)(1) of Act by either his conviction or his commission of another offense that is not a crime involving moral turpitude.

REASONING

A. Applicability of the “Petty Offense” Exception to Cancellation of Removal Eligibility

The court concluded that respondent’s 1997 conviction for spousal injury did not render him ineligible for cancellation of removal under section 240A(b)(1)(C), or sections 240A(b)(1)(B) and 101(f)(3) of the Act, because the conviction, considered alone, clearly qualifies for the “petty offense” exception. The court reasoned that because the respondent was convicted under a misdemeanor statute that carried a maximum sentence of no more than 1 year in prison and he received a sentence of less than 6 months. Thus, the court concluded that the respondent would not be inadmissible on the basis of this offense.

The Court further found that the conviction, standing alone, does not render the respondent ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, which requires an applicant to show that he “has not been convicted of an offense under section 212(a)(2).” The court reasoned that a “petty offense” exception also applies when determining eligibility for cancellation of removal.

Furthermore, the court concluded that on the basis of his 1997 conviction alone, that respondent was not an alien “described in” section 212(a)(2)(A) of the Act for purposes of the good moral character definition in section 101(f)(3) because an alien is not within the class of aliens described in section 212(a)(2)(A) if the “petty offense” exception applies to his or her crime.

B. “Only one crime” exception to 212(a)(2)(A)(ii) of the Act.

The court further construed the “only one crime” proviso as referring to “only one such crime,” meaning it had to involve a crime of moral turpitude. The court reasoned that while the IJ view would mean that the commission of any offense—even one of a very minor nature, such as a driving infraction—would preclude application of the “petty offense” exception the court believed that the far more sensible construction is to read the word “crime” in the context of offenses that are the subject matter of section 212(a)(2)(A). Viewed in this fashion, the court stated, the word “crime” refers most logically to a crime involving moral turpitude.

C. Voluntary Departure

For the above mentioned reasons, the court concluded that the conviction does not bar respondent from this form of relief on statutory grounds.

CONCLUSION: The respondent’s appeal is sustained.

If you are currently in immigration court proceedings, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the options available to you in order to avoid deportation.

CASE BRIEF: Ferreira v. Ashcroft (9th Cir. 2004) 382 F.3d 1045

February 28th, 2013 No comments
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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.

Deportation Proceedings Terminated for Client in Orange County

February 20th, 2013 No comments
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We attended a merits hearing last week for one of our clients in Anaheim Hills. The hearing was scheduled for cancellation of removal for lawful permanent resident, and we were prepared and confident in moving forward with the case. Our client committed a minor crime almost forty years ago, but Immigration and Customs Enforcement pursued deportation several years ago. The client has lived in the US for decades and all of his family lives in the US. He has almost no family in his home country.

We were prepared to show evidence that our client was eligible for cancellation of removal and it should be granted as a matter of discretion. However, when we arrived at the hearing the government attorney notified me that they intended to move for termination. She had reviewed the file and she did not believe deportation was appropriate in this case.

My client was not forced to testify, and he and his family were pleased that this matter would be put to rest. Over the last few years, he was very stressed about this case. Although I assured him countless times that our case was very strong and I was confident we would win, the prospect of moving back to his home country and being separated from his wife and children terrified him.

Now that the case is over, he is considering naturalization so he can become a US citizen. If you or a loved one is in immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you to help you better understand the options available to you.

Case Brief – Vasquez Hernandez v. Holder, 9th Circuit (2010)

January 17th, 2013 No comments
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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.

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