Daniel Shanfield, Esq. Immigration Law & Defense Blog

The End of an Error? 11th Circuit Joins 3rd and 8th Circuits In Overturning BIA’s Silva-Trevino Decision

The Attorney General's 2008 decision in Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008), which undid a century of legal doctrine reviewing crimes under the categorical approach, has made criminal immigration defense a circus of relitigating old convictions before of the immigration courts. I've previously offered my own insights on tactics to defend immigrants charged with convictions for crimes involving moral turpitude. Fortunately, the circuit courts of appeal are slowly but inexorably recognizing the folly of Silva-Trevino’s uncategorical categorical analysis, and on October 12, 2011, the 11^th Circuit in Sanchez-Fajardo joined the 3^rdCircuit and 8^thCircuit in rejecting the Board’s three-step framework.

In Sanchez-Fajardo, Petitioner, a native and citizen of Cuba and returning LPR, was found inadmissible by the Immigration Judge and BIA under INA § 212(a)(2)(A)(i)(I) for having been convicted of a CIMT, in connection with a false imprisonment conviction under Florida Statutes § 787.02. As the record of conviction was ambiguous as to the turpitudinous nature of the offense, the IJ went beyond the record of conviction to determine removability. Under the Florida statute, a Defendant could be found liable for false imprisonment even where confinement was temporary and non-violent, and resort to the record of conviction failed to clarify how confinement was accomplished. The Immigration Judge however looked outside of the record of conviction as directed by Silva-Trevino Step III, and stringing together facts found from Sanchez-Fajardo’s concurrent convictions for misdemeanor battery and assault, concluded that the false imprisonment conviction constituted a crime involving moral turpitude. The Board affirmed the IJ’s analysis. The 8^th Circuit however rejected this approach, holding that analysis of an offense must begin and end with the conviction before the criminal court, and not with a separate inquiry into the Defendant’s conduct. Concluding that the immigration laws were unambiguous on the mandatory nature of the categorical and modified categorical approaches, the Court in Sanchez-Fajardo forbids inquiry into conduct beyond that described categorically in the statutory offense, or by the record of conviction where the criminal statute is overbroad.

In the 9^th Circuit, the Court of Appeals has yet to explicitly rule on the validity of the Silva-Trevino Three-Step Analysis, only skirting the issue recently in an anyway-you-slice-it decision in Hernandez-Cruz v. Holder. Bolstered by these three circuit court decisions however we can only hope that the 9^th Circuit can soon find the right case and finally put an end to Silva-Trevino error.

Important 9th Circuit Immigration Decision on Failure to Register as Sex Offender

The 9th Circuit today issued an important decision on the immigration consequences for failure to register as a sex offender under former California PC 290(g)(1).  Previously the Board of Immigration Appeals (BIA) had held that a California failure to register conviction was categorically a crime involving moral turpitude (CMT) triggering possible removal under 8 USC 1227(a)(2)(A)(i).  In re Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007).  Today's 9th Circuit decision reiterated that an offense must exhibit some form of evil intent to qualify as a CMT. As California courts have previously held that a conviction under former PC 290(g)(1) would lie even for mere forgetfulness, the 9th ruled that the offense could not be deemed a categorical CMT.  Pannu v. Holder, No. 07-71988 (9th Cir. May 11, 2011).

Pannu is good news for the defense, but hazards remain.  Although sex offender failure-to-register offenses no longer appear to be categorical CMTs in the 9th Circuit, it appears that ICE could still establish deportability by resort to evidence demonstrating intentionality under either the Shepard modified categorical approach or the Silva-Trevino 3rd Step.  So, keep those complaints, orders, abstracts, and transcripts ambiguous on the element of intent.

Your Papers Please (cont.): DUI Checkpoints, Auto Impounds, and the Undocumented Immigrant Driver

 

California law enforcement officials have declared 2010 the "Year of the DUI Checkpoint".  Last week, a report by Pulitzer Prize winning Journalist Ryan Gabrielson of the UC Berkeley Investigative Reporting Program  revealed how California law enforcement is disproportionately targeting Latino immigrant neighborhoods for these operations.  Rather than netting DUI arrests and keeping drunk drivers off the road, however, these checkpoints have yielded a bonanza of revenue for localities through 30-day impound fees and sales of vehicles seized and sold at auction from unlicensed drivers, many of whom are undocumented immigrants. 

According to the Report, checkpoint impounds in 2009 generated an estimated $40 million in towing fees and police fines statewide. Cities are splitting the revenue with towing companies, leading to windfall profits for towers. While providing an economic benefit for cash-strapped California cities, it comes at a cost to U.S. taxpayers generally. In the last fiscal year, $30 million of federal funds earmarked for DUI enforcement was authorized to pay overtime for checkpoint operations.  Some check points are "padded" with cops, likely because their overtime for working such DUI operations is paid for by the state.  Essentially, U.S. taxpayers are subsidizing overtime for police to conduct low-priority enforcement and maximize profits for towing companies.

According to the UC Berkeley Report, law enforcement officials disclaim any racial profiling where the police establish checkpoints. However, as reported in the Sacramento Bee, in municipalities where Latinos are the largest slice of the population, police impounded an average of 34 cars at each checkpoint – three times the rate in cities with the smallest Latino populations. In the City of Montebello alone, the Washington Times reports the rate of impounds to DUI arrests was an astonishing 62 to 1. 

 “Mr Dillinger, why do you rob banks..?” “Because”, Dillinger replied “that is where the money is.”

The numbers speak for themselves.  Latino communities are perceived by cash-strapped municipalities as a target rich environment for impounds, even if not for DUI arrests, making checkpoints in these neighborhoods a sound financial decision.  The Constitutional implications of the practices however are another matter, and a lawsuit challenging the constitutionality of California’s 30-day impound law is awaiting oral arguments before the Ninth Circuit Court of Appeals later this year.  As discussed in the Report:

“It is assumed under the law that the taking of personal property without a warrant is unconstitutional,” said Martin J. Mayer, a founding partner in the Fullerton law firm Jones & Mayer, which represents numerous police agencies . . .

The law protects everyone within the United States, regardless of whether they are in the country illegally . . . In 2005, the Ninth U.S. Circuit Court of Appeals ruled in an Oregon case that law enforcement can’t impound a vehicle if the only offense is unlicensed driving.

One exception is called the “community caretaker” doctrine, which permits police to impound a car if it poses a threat to public safety, is parked illegally or would be vandalized imminently if left in place.

The ruling dramatically altered the law regarding vehicle impounds.  In response, the Legislative Counsel of California in 2007 called into question the legality of the state’s impound procedures.

“If a peace officer lawfully stops a motor vehicle on the highway and the driver of the motor vehicle is an unlicensed driver, that alone is not sufficient justification for the peace officer to cause the impoundment of the motor vehicle,” Legislative Counsel Diane F. Boyer-Vine, who advises state lawmakers, wrote in a response to Sen. Gilbert A. Cedillo, D-Los Angeles. The legislative counsel has no authority over police departments.

Even right-wing news outlets like the Washington Times have decried these operations as unconstitutional:

This clumsy, police-state tactic was once reserved for places such as the Soviet Union. We join with Supreme Court Justice Clarence Thomas in lamenting the judicial contortions used to whitewash this unconstitutional practice. "Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing," Justice Thomas wrote in a 2000 dissent on a checkpoint case.

The risk of deportation for undocumented immigrants caught up in a checkpoint is unclear.  Many police departments conducting checkpoints also maintain INA section 287(g) cooperation agreements with ICE.  If a police  officer were to inquire of an undocumented immigrant the reason for not possessing a driver's license, and the immigrant admitted to being in the U.S. unlawfully, the officer would then be authorized to take the immigrant into custody for processing by ICE, and for deportation from the United States.  If taken into custody, immigrants should exercise their legal rights, refuse to provide a statement or sign any documents, and demand to speak with an immigration defense lawyer and see an immigration judge.

Welcome to Checkpoint Nation...

 

Santa Clara County Explores Providing Legal Defense Counsel in Criminal Misdemeanor Cases; Possibly Huge Impact in Deportation Prosecutions

This morning's San Jose Mercury News is reporting plans by the Santa Clara County Public Defender's Office to remedy a gaping hole in the county's criminal justice system, by providing criminal defense counsel at criminal arraignment hearings in misdemeanor cases.  As reported by the Mercury News' Sean Webby,

Unlike most counties in California, Santa Clara County has no lawyers staffing misdemeanor arraignments, a defendant's first court appearance. Many defendants resolve their own cases right then by accepting a judge's on-the-spot-deal and pleading guilty. Critics say the system encourages people to plead guilty to avoid spending more time in custody waiting for their cases to be reviewed by the Public Defender's Office.

Dave Cortese, one of our elected County Supervisors, is "embarrassed" by this due process black hole, and is working with Supervisor Ken Yeager in support of the PD's efforts to get lawyers helping indigent misdemeanor defendants.

If put in effect, such a proposal would have a huge impact in assisting immigrant defendants, who, desperate to get out of jail and back to their jobs and families, unwittingly plead guilty to crimes that may lead to their deportation, when what they should be doing is fighting aggressively to get their charges reduced or dropped altogether.  In our practice, we see numerous, non-English speaking immigrant clients who took guilty pleas to misdemeanor theft, controlled substance, and domestic violence offenses.  The Santa Clara County District Attorney's Office charges these cases aggressively, often with multiple overlapping charges (for instance, methamphetamine possession, under the influence and drug paraphernalia possession; burglary and theft; protection order violations and spousal battery) on the assumption that defendants will obtain defense counsel who will then negotiate a plea deal down to a more favorable disposition.

This adversarial system might make sense if the parties were evenly matched, with zealous attorneys fighting it out on both sides.  But where an unrepresented, incarcerated, non-English speaking defendant is doing battle with the comparatively limitless resources of the District Attorney's office, what we have is not a fight, but a bloodbath.

Taking a misdemeanor plea just to get out of jail typically creates catastrophic immigration consequences.  Many immigrants are unaware that even a misdemeanor conviction can lead to deportation.  For misdemeanor convictions for crimes involving moral turpitude (like theft) transpiring within five years of a permanent resident's admission to the United States, the possible sentence must be one year or more to raise the possibility of deportation.  These limitations however are inapplicable to immigrant defendants convicted of drug or domestic violence offenses, and defendants could face deportation regardless of the length of possible sentence or period of legal residence in the United States.  These limitation do not apply moreover to immigrant defendants who were ever previously convicted of any other crime involving moral turpitude, no matter how long the immigrant has lived in the United States.  

With public defenders in place to assist at the misdemeanor arraignment hearing, immigrant defendants could get a much fairer shake, both in their criminal cases and in avoiding harsh immigration consequences typically far out of proportion to the underlying misdemeanor offense. Under the California Supreme Court's Resendiz decision, defense attorneys are required to provide advice on the specific immigration consequences of accepting a guilty plea. With the aid of a public defender, immigrant defendants could make more knowing and intelligent decisions both in their criminal defense and avoiding deportation down the line. 

For anyone who cares about ensuring that the power of Government to jail and convict is properly limited, so that innocent defendants are not wrongly convicted and guilty persons are only punished in proper measure, this is an effort worth supporting.

As an important aside, positive developments like this are possible thanks to vibrant local reporting.  These efforts are a result of the Merc's editorial advocacy and previous work illustrating deficient due process protections in our local criminal justice system. Please support your local paper and subscribe.  The news isn't free.

Returning Legal Permanent Residents with Prior Crimes: Avoiding Traps and Pitfalls

A recent client of ours, a resident of California's Central Valley and 19 year U.S. legal permanent resident (LPR), was returning home via Phoenix International Airport after attending his father's funeral in Mexico.  At the Phoenix airport, Customs Border Protection discovered that he had a nine-year old conviction for simple possession of cocaine.  CBP took him into custody, away from his wife, child, construction job, and new home, and remanded him to the Florence Immigration Detention Center outside of Phoenix.  He was detained without bond, and as an arriving alien beyond the custody authority of the Immigration Judge, he could not be released, even though he clearly qualified for relief from deportation, had an otherwise spotless criminal record, and had a family at home who desperately needed him.

Our office succeeded in blocking his deportation and getting back his green card.  However, the months he spent incarcerated had plainly left its scars on my client, his wife, and his young child.

Our client's situation is not uncommon.  DHS is subjecting legal permanent residents to an ever-tightening noose, with the goal of identifying, detaining, and removing those non-citizens convicted of, or who are suspected to have committed, crimes in the U.S. or abroad.  

In addition to actively investigating certain priority criminal violators, DHS has set up a series of passive "checkpoints" to identify non-citizens with criminal backgrounds.  For instance, LPRs are required to submit to biometrics when applying for permanent residency, renewing an expiring I-551 green card, applying for a re-entry permit for extended foreign travel, when applying to remove the condition on permanent residency, or pursuing naturalization.  They are also subject to investigation as petitioners for family members under the Adam Walsh Act, which prohibits citizens and permanent residents convicted of certain sex offenses from petitioning family members for an immigrant visa, but in the course of DHS investigation, may also be found-out in connection with other offenses, and thereby subject to possible removal.

As federal and state law enforcement agencies have in the last several years effectively linked up their offender databases, these checkpoints have become extremely effective at identifying LPRs with law enforcement records, and at mistakenly sweeping up immigrants who do not.

The most perilous checkpoint however for LPRs is the Customs and Border Protection window at the U.S. airport or port of entry.  Now, under US Visit and the DHS Northern Hemisphere Travel Initiative, returning LPRs must present their passports and I-551 green cards to gain entry into the United States, as well as submit a fingerprint scan.  Now linked to the massive (and massively inaccurate) federal-state law enforcement database, LPRs who previously came and went in and out of the U.S. are now finding themselves being referred for deferred inspection and even being referred for removal and deportation proceedings, based on long ago arrests and convictions.  

Practically all of our client who have faced this calamitous process had no idea what they were in for when they decided to travel abroad temporarily form the U.S. Many of these clients had long ago criminal issues that they thought were completely resolved when they did their time in jail and completed probation, or when their charges were dismissed.  Most of them had also travel abroad many times before without incident, and believed their permanent residency to be in good standing.  Once taken aside at the airport, and told they were facing deportation from the U.S., these clients are devastated to learn that they could lose everything they had built up in the United States.

Returning LPRs however are not just vulnerable to trouble for criminal convictions.  DHS may also initiate a case for removal for crimes that a CBP officer can get the LPR to confess to, whether actually committed or not.  Under INA s. 212(a)(2)(A)(i), any LPR who merely admits to having committed either a crime involving moral turpitude or an offense relating to a controlled substance is subject to exclusion from the United States and potential loss of permanent residency.  In a recently publicized DHS training article for CBP inspectors, DHS officers are instructed on how to intimidate and confuse returning LPRs, under the difficult and fearsome circumstances of a CBP inspections interrogation, into confessing crimes that they might have been arrested for but subsequently cleared.  To quote,

For example, an officer encounters an alien with an arrest for cocaine possession but no conviction. He should not ask: "Have you ever knowingly possessed a controlled substance?" Rather, he should assert: "I see you've been involved with cocaine. Are you still dealing drugs?" When confronted with the very serious offense of trafficking in cocaine, many criminal drug users, will immediately deny this offense while equivocating on the lesser offense of cocaine possession. Experience indicates that if this individual actually was involved with cocaine, they will likely admit to it if questioned properly.

Sounds straight forward, doesn't it?  Get the LPR to admit to a crime he committed, even if he wasn't convicted for it.  And yet, the literature on false confessions is already well established.  And so are the punitive conditions faced by arriving non-citizens at deferred inspections that tend to promote baseless admissions.  Clients have advised our firm that upon arriving exhausted from lengthy travel, of being forced to wait hours, cooling their heels, awaiting their CBP interrogator.  While waiting, there is often little or no food provided, restricted access to medication and restrooms, denial of sleep, and no contact with family or an attorney who might help. 

Worse is the deception practiced by CBP officers.  Clients have advised us that they believed themselves compelled to agree with whatever the CBP inspector asked, and of being threatened with deportation if they refused to cooperate. And why cooperate?  Based on what our clients have told us, because of false promises that by going along with the CBP inspector, they would be allowed to go back to their families, their homes, and their jobs.  I suppose that this is what is meant by proper questioning. 

In the end, DHS will continue to innovate novel control methods for immigrants in the United States.  It's up to lawyers and advocates to defend our clients' rights under these difficult and overreaching conditions, and most importantly, to educate the immigrant community before trouble strikes. For immigrants with criminal issues, the most important step they can take to protect themselves is to consult with an attorney or legal service organization on how best to navigate these checkpoints.  Often, immigrants can do quite a lot in preparation for these encounters with DHS, first to mitigate the damage and preserve their permanent residency, but also to keep alive the opportunity to eventually become United States citizens.

The Immigration Judge, a Lawyer's Best Friend under Silva-Trevino?

The Attorney General's recent decision in Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008), undoing a century of legal doctrine in analyzing crimes under the categorical approach, has made criminal immigration defense more challenging than ever.  I've recently had my own personal experience working under this new order, and can offer a few preliminary insights.

By way of background, the AG in Matter of Silva-Trevino, set out a three-part analysis for immigration judges and DHS officers to determine whether a non-citizens criminal offense constitutes a crime involving moral turpitude (CMT).  In short,

to determine whether an alien's prior conviction triggers application of the Act's moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to the alien's record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.

Id. at 704. 

The first two steps track approximate the Taylor and Shepard analyses traditionally applied under the categorical and modified categorical approaches and favored by the U.S. Supreme Court recently in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2006).  See also Taylor v. United States, 495 U.S. 575 (1990); Shepard v. United States, 125 S.Ct. 1254 (2005). The reasons for confining the inquiry are based both on fair play and judicial economy: inquiring beyond the record of conviction and imposing immigration liability for acts not pleaded to or proven beyond a reasonable doubt in criminal court would unfairly penalize non-citizens facing deportation, and would bog down administrative proceedings with criminal mini-trials to determine the character of the alleged offense.  Also, numerous criminal defendants fashioned their plea bargains and took guilty pleas justifiably reliant upon an understanding that immigration courts would not look beyond the confines of the record of conviction in finding a crime involving moral turpitude.

Unsatisfied with this wisdom, Attorney General Michael Mukasey conjured the third prong, thereby discarding, for all practical purposes, the prudential limitations of the categorical approach.  AG Mukasey dismissed these broadly accepted concerns over fairness and economy, leaving it to the discretion of immigration judges and DHS officers to determine how far is far enough in retrying the alleged criminal offense.  

The immigration bar, notably the American Immigration Law Foundation and the National Immigration Project of the National Lawyers Guild, has responded forcefully to the Attorney General's decision.  Many immigration defense attorneys pondered a practice landscape replaced by a battlefield of trench warfare, where ICE attorneys call to the stand police officers, alleged victims, and witnesses repeating hearsay statements to impugn our clients, and where defense counsel calls competing witnesses to testify.

What few counted on however is the unsympathetic response the AG's decision might receive from the immigration bench, a response that might lead to something of a repudiation, in the practical sense, of Silva-Trevino.  Immigration Judges already face a crushing workload, and the backlog on individual case hearings reach out eighteen months in some courtrooms.   Under the circumstances, it's only appropriate that there might be push-back on any added burden on IJ time without any provision of additional resources.  So, faced by the prospect of these third-prong hearings, some judges are fighting back.

In the San Francisco Immigration Court, ICE attorneys are abusing the privilege afforded by the third prong, submitting generic requests for hearing on the CMT charge, even where they have failed under their burden of production to proffer any evidence beyond an inadequate record of conviction, evidence such as a police report or witness affidavit, to justify a decision by the court to set aside a day of hearings.  Demonstrating toughness and independence however, a judge In one of our cases flatly rejected ICE's request, allowing the Government just 60 days to come up with some evidence in support of further inquiry.

From the gist of the court's order, it was easy to discern the judge's deep frustration with the burden of Silva-Trevino and ICE's scheme to mine for evidence on the day of trial. What's clear from the incident is that immigration judges just might be our unrecruited allies against the third-prong.  In motions to dismiss CMT charges under Silva-Trevino, defense counsel should be making common cause with the judges against ICE requests to hold fishing expedition hearings where either no evidence beyond the record of conviction or unfair, inadmissible evidence in support of prong three has yet been submitted.   Recall that Silva-Trevino endows Immigration Judges wide discretion to determine just what evidence is "necessary or appropriate" to ascertain whether an offense constitutes a crime involving moral turpitude.  It pays to remind the court of this authority and not be browbeat by ICE into scheduling a third-prong hearing in arguing against a time wasting witness examination.

Just as importantly in fending off these hearings, defense counsel should early on try to defeat the expectation that ICE can compel the respondent to testify where the burden of production, as a constitutional due process matter, rests with the Government to establish all elements of removability by clear, convincing an unequivocal evidence.  See Woodby v. INS, 385 U.S. 276 (1966) (clear, convincing and unequivocal standard required as a matter of due process);  cf. INA § 240(c)(3) (clear and convincing standard); Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2006); Matter of Tang, 13 I&N Dec. 691 (BIA 1971) (non-citizen cannot be called to testify unless Gov't provides some evidence of alienage), U.S. v. Minker, 350 US 179 (1956) (denatz case), Matter of Vivas, 16 I&N Dec. 68 (BIA 1977) (burden of persuasion only shifts to Respondent when Gov't makes prima facie case); Matter of Guevara, 20 I&N Dec. 238 (BIA 1991) (adverse inference by 5th Amendment exercise of silence cannot be sole basis for establishing Gov'ts prima facie case); Chavez v. Gonzales, 192 Fed.Appx. 712, 713 (9th Cir. Jul 27, 2006) (adverse inference from silence appropriate only where other evidence of alienage in record).  None of these decisions were explicitly overturned by Silva-Trevino, and thus they remain good authority.

I'll keep readers posted on further developments in these cases.