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.

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.

In re Greg Fabian AZURIN, Respondent

Issue Presented

Whether an alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c)?

Facts

The respondent was convicted on March 12, 1990, of shooting at an occupied motor vehicle in violation of California law. On the basis of this conviction, he was charged in 1998 with removability as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §1227(a)(2)(A)(iii) (Supp. IV 1998). Subsequently, a charge was lodged that he was also removable under section 237(a)(2)(C) because his conviction was for a firearms offense as well. Neither of these grounds of removability has a corresponding ground of inadmissibility. The respondent is the beneficiary of an approved visa petition filed by his United States citizen spouse. In his decision, the Immigration Judge implied that the respondent was ineligible for a waiver under former section 212(c) of the Act because his conviction was for an offense that rendered him removable on grounds that lacked a comparable ground of inadmissibility.

Rule

An alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c) relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993)

Analysis

A conviction for an offense that rendered the alien deportable did not preclude a showing of admissibility for purposes of an application for adjustment of status where there was no corresponding ground of inadmissibility for the crime in the statute. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992), Therefore, the court concluded that respondent does not need section 212(c) relief to waive either the firearms or aggravated felony charges in order to adjust his status. Nevertheless, because section 212(c) requires a waiver in conjunction with the adjustment application, respondent would need to seek a waiver as his offense also constitutes a crime involving moral turpitude, which would render him inadmissible.

Note: As an initial matter the court ruled that because SCOTUS in  INS v. St. Cyr, 533 U.S. 289 (2001),  determined that restrictions on the availability of section 212(c) relief do not apply retroactively to aliens who pled guilty prior to the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996, and because the respondent pled guilty and was convicted prior to the enactment of that statute, the respondent is not ineligible for a waiver as a result of the AEDPA amendments.

Furthermore, the court held that respondent is ineligible for section 212(c) relief on the basis of the newly promulgated regulations addressing such relief. See: Executive Office for Immigration Review; Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57,826 (Sept. 28, 2004) (codified at 8 C.F.R. § 1212.3) (effective Oct. 28, 2004). The purpose of the new regulation, the court stated, “appears simply to be to codify the holdings in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (A.G. 1991; BIA 1990), and Matter of Granados, 16 I&N Dec. 726 (BIA 1979).

Section 212(c) relief is not available to waive a ground of deportability or removability that has no analogous ground of inadmissibility in section 212(a) of the Act. Matter of Gabryelsky, 20 I&N Dec. 750, 753-54 (BIA 1993). Thus, Matter of Gabryelsky is entirely consistent with the case law underpinning the new regulation.

Consequently, the court held that the new regulation does not make the respondent ineligible for section 212(c) relief to the extent that he seeks a waiver, in conjunction with an application for adjustment of status, for an offense that would render him inadmissible under section 212(a).

Lastly, the court rejected the Immigration Judge’s suggestion that as a result of other regulatory changes, the respondent can no longer rely on Matter of Gabryelsky, in applying for adjustment of status in conjunction with a waiver of inadmissibility under former section 212(c) of the Act because the regulatory change(s) does not preclude the respondent from combining the section 212(c) waiver with an adjustment application. The court stated the “regulation clearly indicates that the various waivers of inadmissibility are intended to accompany an adjustment application.”

Accordingly, the court held that Matter of Gabryelsky, had not been overruled as a result of the alteration of 8 C.F.R. § 245.1(f), and reaffirm its decision in that case.

Holding

The court held that the new regulation does not make the respondent ineligible for section 212(c) relief to the extent that he seeks a waiver, in conjunction with an application for adjustment of status, for an offense that would render him inadmissible under section 212(a).

Conclusion

The respondent is permitted to submit his section 212(c) waiver request with his application for adjustment of status.

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.

Gasparyan v. Holder

FACTUAL AND PROCEDURAL HISTORY

On October 24, 2004, Gasparyan fled Armenia (At 19 she was sexually assaulted by a friend, whom she married shortly thereafter to avoid shaming her family. The abuse continued during her marriage and until she fled to the U.S.) and entered the United States on a six-month visa. Sometime upon entering the U.S. a friend of hers (Topalian) wrote a letter to the INS on Gasparyan’s behalf asking for an extension of her visa, but INS denied the request on August 24, 2005. Gasparyan planned for her sister to send money and come visit so she “could hire a lawyer and deal with [her] immigration status.” However, Gasparyan’s sister had a car accident and could not come or send money. When asked during her asylum hearing what she was thinking after receiving the denial of the extension, Gasparyan responded, “I was waiting for money to come so I could apply.” Gasparyan testified before an immigration judge that after her arrival in the United States she felt troubled and unsafe. She suffered from nightmares and other psychological trauma related to the domestic violence she endured.

In August 2005, the brother and sister-in-law of Gasparyan’s husband invited her to live with them in San Mateo, California. Gasparyan agreed to move when her in-laws assured her that they would not tell her husband of her location. Gasparyan testified that her mental health quickly deteriorated because the trauma she suffered as a consequence of the domestic violence resurfaced while living with her husband’s family.

In August 2006, immigration officials took Gasparyan and her in-laws into custody because of an immigration problem that her in-laws had. Thereafter, the Immigration and Naturalization Service initiated removal proceedings against Gasparyan, during which she applied for asylum, withholding of removal, and relief under the Convention Against Torture.

The immigration judge found that Gasparyan was eligible for withholding of removal and CAT protection based on the domestic violence she suffered. However, the immigration judge denied her application for asylum because she did not file within the one-year deadline and she was not so severely mentally disabled as to establish extraordinary circumstances excusing the untimely filing.

Gasparyan appealed the denial of asylum. The Board dismissed her appeal.

ISSUES

1.    Whether the Board correctly determined that Gasparyan did not make a showing of “extraordinary circumstances.”
2.    Whether the Board erred by failing to analyze her extraordinary circumstances claim using the appropriate “three-part test” derived from 8 C.F.R. § 1208.4(a)(5).

RULE
1) Petitioner must establish that her mental illness constituted “extraordinary circumstances directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5)

2) The courts jurisdiction to review mixed questions of law and fact is limited to instances where the underlying facts are “undisputed.”

3) Before assessing the three factors, a court must first determine that the alien’s circumstances were, in fact, “extraordinary.”

4) The three prongs test derived from 8 C.F.R. § 1208.4(a)(5), which states that extraordinary circumstances may excuse the filing of an untimely asylum application if the applicant can demonstrate: [1] that the circumstances were not intentionally created by the alien through his or her own action or inaction, [2] that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and [3] that the delay was reasonable under the circumstances.

HOLDING

1. Petitioner did not establish that her mental illness constituted “extraordinary circumstances directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5)

2.  The court’s jurisdiction in cases where there are questions of law and fact are limited to instances where the underlying facts are, as in this case, “undisputed.”

3. Before assessing the three factors, a court must first determine that the alien’s circumstances were, in fact, “extraordinary,” and in this case the record show’s petitioner did not show “extraordinary” circumstances.

4. Even assuming the petitioner showed “extraordinary” circumstances, the record does not establish she would be able to satisfy the three-prong test under 8 C.F.R. § 1208.4(a)(5).

REASONING

A. Jurisdiction to Review “Extraordinary Circumstances” Determination Based on Disputed Facts.

To excuse her untimely asylum application, Gasparyan must establish that her psychiatric problems constituted extraordinary circumstances “directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5). The court concluded that the though Gasparyan claimed the delay was because of her psychiatric problems, the record indicated otherwise  because she lacked the money to hire an attorney and initiate the process. Similarly, Dr. Good testified that Gasparyan had explained to him that her delay was due to lack of funds and the language barrier, in addition to psychological trauma. Thus, the record reveals that the relation between Gasparyan’s mental disabilities and her failure to meet the one-year deadline was far from an “admitted or established” historical fact. Husyev, 528 F.3d at 1178. Because the record was showed “disputed facts” the court reasoned that its jurisdiction to review mixed questions of law and fact is limited to instances where the underlying facts are “undisputed,” as they are here, the court lacked jurisdiction to review the Board’s extraordinary circumstances determination. Therefore, the court dismiss Gasparyan’s petition challenging the merits of the Board’s extraordinary circumstances determination for lack of jurisdiction.

B. Legal Standard for Analyzing “Extraordinary Circumstances” Claim

Gasparyan argues that the Board erred as a matter of law by applying an incorrect legal standard when it failed to analyze her extraordinary circumstances claim using the requisite “three-part test.” Whether the Board applied the correct legal standard is a question of law, see Rodriguez-Rivera v. U.S. Dep’t of Immigration & Naturalization, 848 F.2d 998, 1001 (9th Cir. 1988), and thus we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D).

The three prongs of the test derived from 8 C.F.R. § 1208.4(a)(5), which states that extraordinary circumstances may excuse the filing of an untimely asylum application if the applicant can demonstrate: [1] that the circumstances were not intentionally created by the alien through his or her own action or inaction, [2] that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and [3] that the delay was reasonable under the circumstances.

While Gasparyan contended that the Board “made no findings” regarding any of the three factors listed in § 1208.4(a)(5) and therefore did not apply the pertinent regulation, the court determined that the extraordinary circumstances are criteria for assessing whether extraordinary circumstances may excuse an untimely asylum application. Also, before assessing the three factors, the court concluded that the Board must first determine that the alien’s circumstances were, in fact, extraordinary. Looking to Section 1208.4(a)(5) of the relevant code, which contains a non-exhaustive list of circumstances that may be considered extraordinary, including “[s]erious illness or mental or physical disability.” 8 C.F.R. § 1208.4(a)(5)(i), an alien’s circumstances are “extraordinary” if they fall within one of the examples listed or are of a similar nature or seriousness. Since the Board concluded that Gasparyan failed to present extraordinary circumstances, it was unnecessary for it to consider the three factors.

Furthermore, the court reasoned that even if the Board was required to consider the three factors, although the Board did not explicitly link each of its reasons for denying her extraordinary circumstances claim to one of the three factors in § 1208.4(a)(5), it did provide reasons that correspond to the factors listed in the regulation (For example, the Board noted that Gasparyan claimed that she delayed in applying for asylum because she was living with her husband’s brother, which rekindled the emotional trauma caused by her abusive husband). Also, the court mentioned that the applicant bears burden of establishing first, second, “and” third factor). Thus, the court concluded, The Board applied the correct legal standard and gave legitimate reasons for its conclusion.

CONCLUSION: The court denied petitioners relief to the extent she seeks.

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.

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.

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.

Facts:
In Matter of Stockwell, a 46-year-old male, native and citizen of the United Kingdom, entered the U.S. in 1987 as a visitor. He married a U.S. citizen in 1987 and was granted permanent resident status on a conditional basis. They divorced in 1988, and he married a second U.S. citizen on July 6, 1989. His new wife filed a visa petition on his behalf that was approved on September 19, 1989. He was placed in deportation hearing on July 14, 1989 because his conditional permanent residency terminated. IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.

Procedural Posture:
IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.
The USCIS appealed on the ground that the Congressional intent of 245(d) was to exclude aliens who have had their conditional status terminated as well as those continuing to hold conditional status.

Issue:
Whether section 245(d) of the INA (“Act”) prohibits an alien whose conditional permanent resident status has been terminated from adjusting status under section 245(a) of the Act.

Holding:
No. Affirmed IJ’s holding that Stockwell be granted to adjust status based on his second marriage to a U.S.C. wife.

Rule:
An alien holding conditional permanent resident status is prohibited by section 245(d) of the Immigration and Nationality Act, 8 U.S.C. Section 1255(d)(1988), from adjusting his status under section 245(a), but Section 245(d) of INA does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

Reasoning:
The Board focused on the congressional intent of 245(d), which was to prevent aliens from circumventing the immigration legal system through fraudulent marriages. By barring adjustment of status during the 2-year conditional period, Congress sought to prevent aliens from acquiring conditional permanent residency through marriage only to adjust status on another basis. This way, they might have tried to bypass the requirements for removing the conditions of residence. Therefore, the Board reasoned that section 245(d) of the Act was not intended to prohibit an alien whose conditional permanent resident status had been terminated from adjusting status under 245(a).

If your I-751 has been denied by USCIS and your case has been transferred to the immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.

Facts:
Armando Garcia, a native and citizen of Mexico, was admitted to the U.S. as a lawful permanent resident on or about March 3, 1999. He was convicted of misdemeanor assault and battery, domestic abuse on October 23, 2001. The maximum penalty for this crime was imprisonment for 1 year, but he was sentenced to 3 years probation.

The Immigration Judge (IJ) held that Armando was removable as an alien convicted of a crime involving moral turpitude within 5 years of admission into U.S. The IJ held that his CIMT qualified as a petty offense under section 212(a)(2)(A)(ii)(II) of the Act but held that the “stop-time” rule in section 240A(d)(1) was still triggered. The “stop-time” rule rendered Armando unable to establish the requisite 7 years of continuous residence for cancellation of removal.  Armando appealed.

Procedural Posture:
Appealed to Board of Immigration Appeals regarding the denial of his cancellation of removal application

Issue:
Whether the language of section 240A(d)(1) of the Act, “an offense referred to in section 212(a)(2),” incorporates the petty offense exception as it relates to crimes involving moral turpitude

Holding:
No. (see rule) Board sustained the appeal and remanded it back to the IJ. The Board held that the respondent is not barred by his conviction for a single petty offense from establishing the 7 years of continuous residence required to be eligible for cancellation of removal.

Rule:
A conviction for a single crime involving moral turpitude that is subject to the petty offense exception does not “stop time.”

Reasoning:
Board reasoned that the “stop-time” rule phrase, “an offense referred to in section 212(a)(2)” of the Act, also incorporated the petty offense exception. The Board cited the holding in Matter of Garcia-Hernandez, 23 I&N Dec. 590, 593 (BIA 2003) where the Board held that for determining eligibility for cancellation for certain nonpermanent residents, the language of section 240A(b)(1)(C) of the Act, “convicted of an offense under section 212(a)(2),” did not cover a CIMT subject to petty offense exception.