Elisa Menendez & Hector Castellon v. Whitaker (AG) 2018 WL 5832974

These two cases were consolidated in appeals to the 9th Circuit from BIA decisions of removal of petitioners, both convicted of state crimes in California. The appellate panel, in an academic display of linguistics and rhetoric, applied their conventional categorical rule of comparing the state criminal law rule used by the BIA with the comparable federal rule. The California rule of Penal Code 288 (c) prohibition of sexual molestation of children requires evidence involving moral turpitude. The BIA held P.C. 288 is categorically a crime of  child abuse under Penal Code 647.6. The same charge in federal court is 8 U.S. Code 1227 but the statute  does not use the same term for the crime.

The panel held neither of the two statutes in the state cases cited by the BIA involved moral turpitude or child abuse under federal law. Only after an extensive examination of the elements in state and federal law did the panel hold the BIA used the wrong law and therefore reversed for a rehearing by the BIA.

The concurring judge in these two cases above reviewed a major federal problem not necessarily confined to this BIA case.  In all habeas corpus hearings of state court convictions the federal appellate court compares state law with the comparable federal law.  If the state case law or statute  do not compare, the federal court reverses, in effect, the state courts by applying the law of federal courts on the same subject. The concurring 9th Circuit judge in the three judge panel commented on this practice as it applies not only to habeas corpus in federal review of state court convictions but also hearings of the rule applicable to the BIA.

The court reversed the BIA and ordered a new hearing.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Immigration 1918

Featured

Immigration cases are voluminous, frequently fact specific and and involving rarely used precedent. For that reason we will summarize cases briefly.

Lorenzo v. Sessions, .F.3d 901 (9th Cir. 2018)

Lorenzo filed a petition to appeal the decision of an immigration judge and BIA ordering his deportation. The grounds of appeal were the California statute prohibiting a certain kind of drug differed in content from that of the federal statute and should not be invoked for deporting. The Ninth Circuit panel agreed and reversed.

Using the difference between almost the same item, both of which in violation of federal and state statutes respectively, is not the function of the immigration court.  Immigration courts are not a criminal court but an administrative court to determine whether a petitioner should remain in the United States after committing a crime. Violation of a California statute is a crime warranting sentence. The IJ and the BIA both agreed the California crime warranted deportation.  The Ninth Circuit disagreed, reversed, and remanded.

Orlando Vasquez v. Valle, 2018 DJDAR 7933 (2018)

In a case worse than Lorenzo: The Ninth Circuit panel describes Vasquez-Valle as a native of Mexico in the United States. In other words, an “illegal alien.” Ordered removed by the IJ and BIA, Vasquez petitioned the Ninth Circuit for cancellation of removal on grounds he had been convicted by an Oregon court of witness tampering. Oregon courts held this conduct consisted of moral turpitude and statutorily prohibited. Not in the Ninth Circuit. Moral turpitude must be the federal definition of crime-fraudulent, base, vile or depraved. Therefore, “tampering with a witness” is not a crime of moral turpitude.

This legal definition in a courtroom is another example of an appellate court acting as a criminal court to allow this “citizen of Mexico” to remain in the United States and is incomprehensible.

U.S. v. Garcia Lopez, 903 F.3d 987 (2018)

Lopez pled guilty to the crime of crime of robbery, a “crime of violence” In California, and was subsequently ordered deported by the IJ.  Lopez appealed to the 9th Circuit, and  the court held robbery in California courts differed from the federal definition of the crime and therefore not an “aggravated felony” warranting deportation.

Parada v. Sessions, 902 F.3d 901 (2018)

According to the 9th Circuit, the fear of the applicant’s appeal for asylum based on persecution in his country, and the return of the source of political power, warranted rebutting the government rebuttal of presumption of asylum.

Diaz-Jiminez v. Sessions, 902 F.3d 955 (2018)

The IJ ordered Jiminez deported based on his failure as an alien working as an employee for a private employer to sign a false statement mandatorily required by federal government. The statute was worded to prohibit signing  a false statement, but Jiminez signed no statement at all. So the 9th Circuit on appeal held he committed no crime and no statutory violation.

Nguyen v. Sessions 901 F.3d 1093 (2018)

The BIA ruled that a legal permanent resident could not cancel her removal based on the statutory rule. On appeal the 9th Circuit held the BIA used the wrong rule was applied to the petitioner.

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Immigration Summary 2018

The volume of immigration cases takes up so much time and space, and its cases so unusual for use, that we will use only brief summaries of NInth Circuit cases.

U.S. v. Garcia-Lopez, 903 F.3d 887 (2018)

Defendant had been convicted of robbery in a California court and deported. He returned to the United States three times and deported. He returned again, and this time the IJ ordered him deported charged with an” aggravated felony,” i.e. the robbery. But the Ninth Circuit on appeal held that a robbery under California law could have been done “accidentally” and  not include an intentional act. How a robbery could have been done accidentally is highly unusual. The Ninth Circuit sent Garcia Lopez back to the IJ.

So a three time deported convicted robber goes back for another hearing with the IJ.

Atenia Lorenzo v. Sessions, 902 F.3d 930 (2018),

Lorenzo, a lawful resident, had been convicted in California courts of two counts of possession and transportation of drugs. Charged by the federal government for deportation, the IJ ordered compliance. On appeal, the Ninth Circuit panel ruled the state definition of the relevant drug differed from the federal statute and could not be enforced.  And, despite the IJ ruling that the evidence did not support the application for delay in deportation, the panel disagreed although never seeing, or hearing Lorenzo to  assess his credibility.

Quiroz Parada v. Sessions, 902 F.3d, 901 (2018)

The appellate court, the Ninth Circuit, disagrees with the IJ and BIA that the evidence does not justify asylum. The IJ used the wrong statute.

Diaz-Jimenez v. Sessions, 902 F.3d (2018)

The petitioner (appealing an IJ  decision in the Ninth Circuit ) was charged as an alien unlawfully working in the United States as an employee of a private employer without executing a statutorily required form to be signed.The statute states a false signature warrants deportation,but the petitioner did not sign any form. So he has not violated any law.

Vasquez Valle v. Sessions,  899 F.3d 834 (2018)

The habeas corpus panel in the Ninth Circuit does not agree with the Oregon Supreme Court at trial and appeal in the state court nor the IJ at the immigration hearing. Tampering with a witness in the Ninth Circuit is not an issue of “moral turpitude” and the panel reverses an excellent opinion of the IJ to the contrary. What conduct could be more damaging to the judicial system?

 

U.S. v Ochoa-oregel, 2018 DJDAR 7642 (9th Cir)

This case is destined for laughing. Defendant unlawfully entered the U.S. in 2016 and convicted of unlawful entry.  He had previously been ordered removed in 2008 based on  a prior conviction of domestic battery in an in absentia proceeding. Defendant was again removed in 2011 in an expedited proceeding.

According to the 9th Circuit panel these proceedings were unlawful because defendant  was not informed of the right to appeal and the right to challenge previous proceedings.  He lost these rights because he didn’t show up at the hearings.

That decision warrants cert.

Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015)

Once again, the 9th Circuit has written an opinion which could easily be described as inconceivable, or even more so in less polite terms.  Several years ago the 9th Circuit, over four dissents on rehearing, was reversed by the Supreme Court in another  case written in a scathing per curiam opinion; Gonzales v. Thomas, 547 U.S. 183.  The en banc 9th Circuit in Thomas had held the immigration laws applied to a family as a “social group” eligible for asylum.  The Supreme  Court told the 9th Circuit in Thomas to allow the BIA to make those kind of decisions, and the role of the appellate court is not first review but appellate review.  The harshness of Supreme Court language in Thomas was devastating. All nine justices concurred.

The 9th Circuit panel in Rios had  the same factual issues as in Thomas: approval of the use of a family as a “social group” in compliance with BIA “withholding of removal Rules.”  The panel cited – in italicized letters- the Thomas opinion (9th Circuit reversal) was “vacated on other grounds.”  To put it mildly, this is inaccurate.  In fact, Thomas was not vacated “on other grounds” but reversed on exactly the same grounds as the 9th Circuit held in in Rios. The family is not a “social group.”

Rios had sought asylum, CAT, and withholding of removal, but abandoned the first two grounds on appeal.  The evidence supporting all three grounds was identical. If this case is not reheard, the Attorney General will certainly seek Supreme Court intervention.

Immigration: two cases: Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015; Rodriguez v. Robbins, 803 F.3d 502 (9th Cir 2015)

The 9th Circuit is the best jurisdiction for illegal aliens to gain entry to the United States or impede deportation. In Rodriguez the panel held the government must hold bond hearings for those detained awaiting entry six months or longer.  To retain individuals, the federal government must present clear and convincing evidence the alien will not flee or present a danger to the public.  Good luck to the U.S. agents who must prove two negatives.  These Agents  must now waste their time trying to find out who these detained people are.  Providing  or finding information  about them, or using the wrong name or lying, is not unusual.

In the last few years Central American women and children swarmed into the United States.  The government, overwhelmed by the crowds, could hardly determine asylum in an already bulging caseload..  To handle this crowd, the district court certified a class.  How this decision satisfied Rule 23 is known only to the 9th Circuit-who approved the class and also sub classes.

And the court decision is sympathetic to those people whose alleged relatives hold numerous occupations.  What is the record of Hispanic felons  in state prisons.

Now, in a civil case (except for civil trials), we must apply the Constitution for criminal cases.  There is no end  to the flagrant decisions rendered by the 9th Circuit..

Dimaya v. Lynch,

The IJ  ordered deportation of a Philippine native who had been convicted of burglary in two trials and sentenced accordingly for a “crime of violence” under federal law. In the 9th Circuit, burglary is not a “crime of violence” according to another academic hair splitting decision of a three judge majority panel. Excellent dissent.

Quijada v. Lynch, 799 F.3d 1303 (9th Cir.2015)

Usually we do not discuss immigration cases due to the volume of 9th Circuit litigation-which usually reverses the BIA.  Now and then a case comes along that frustrates immigration judges.  And if the public knew about the 9th Circuit record that would demand a change.

The petitioner came to this country illegally from El Salvador in the mid 70’s as a young boy allegedly fleeing torture.  In 1992 he was convicted of voluntary manslaughter,  sentenced to eleven years in prison, and placed in removal proceedings. Thereafter, he spent several years in seeking relief (10 years) in legal action in the U.S. The BIA ordered his removal and the petitioner appealed to the 9th Circuit contending he was entitled to withhold removal under one federal statute and a deferral of removal under another federal statute (Convention Against Torture (CAT). The BIA held petitioner did not file evidence of any deferred removal claim and is ineligible to seek removal. CAT allows  deferred removal if the petitioner is subject to torture if returned to his original  country.

The 9th Circuit undertook a study of a “crime of violence” prohibiting deferral under CAT using its “categorical approach” and concluded the federal statute requires evidence of an intentional act. But California law of voluntary manslaughter does not  require an intentional act.  Therefore, the conviction of voluntary manslaughter does not constitute a “crime of “violence” under the federal statute. The panel ignored looking at the charge and sentence for manslaughter and its implications.  Eleven years is a strong sentence. Nor did the panel look at the transcript of the charge and sentence even if a review court is restricted to the statutory language.

The other kind of  “categorical approach,” a modified version, was not raised by the government so they waived it, said the panel. But the petitioner did not waive deferral of removal by not filing supporting  evidence in his brief.  So an illegal alien convicted of voluntary manslaughter can stay (or return) in the United States on remand unless the BIA can find differently.  Had the 9th Circuit reviewed the California statute, the charge and sentence, and whether the manslaughter was intentional, even if not statutorily required, they might have differed.  Maybe.

In a footnote, the panel states that petitioner was removed in 2013 and banned from returning within ten years. You would think this case moot. Apparently not.

 

Immigration Cases

Because the 9th Circuit reverses so many of the immigration (BIA) cases, a few examples will explain the absurd excuses the court accepts to allow people to remain in the United States.  Instead of requiring an entrant to establish the right to live in the United States, the 9th Circuit imposes the burden of proof to exclude or deport someone on the government.

The Supreme Court again reversed the 9th Circuit in an immigration case that seemed to foreshadow the result in the same sex marriage case, but Justice Kennedy made the difference with his flowery dissent.  In Kerry v.Din, 135 S.Ct. 2128 (2015) the case made very little media attention but the majority decision contained an excellent summary of the Due Process Clause in the Constitution.

Justice Scalia traces the origin of the Due Process Clause back to Magna Carta and  the early English commentators. Din,  a female living as a citizen in the United States, wanted her husband living in Afghanistan, and a member of the Taliban, to live with her in the United States. According to Din, her marriage included a “liberty interest” arising from implied fundamental rights warranting his entry. Here is an excerpt from Justice Scalia’s majority opinion:

“I think it worth explaining why, even if one accepts the textually unsupportable doctrine of implied fundamental rights, Din’s arguments would fail because  extending constitutional protection to an asserted right or liberty interest … place[s] the matter outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and because the “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field’. Accordingly, before conferring constitutional status upon a previously unrecognized ‘liberty’ we  have required ‘a careful description of the asserted fundamental liberty interest,” as well as a demonstration that the interest is ‘objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” Glucksberg, supra, at 720–721, 117 S.Ct. 2258 .

 

U.S. v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014): Raya-Vaca was deported 6 times from the United States and was now in expedited removal proceedings.  According to the 9th Circuit, the IJ did not inform Raya- Vaca of the proceedings filed against him,  and that failure violates Due Process. Raya-Vaca, having been deported 6 times, should have little doubt of his awareness of the proceedings and the consequences . ” No”, said the court.  Due Process occurred, the all – purpose 9th Circuit rule that knows no boundaries and invoked by the 9th Circuit to impose public policy.

Almanza v. Holder, 771 F.3d 1184 (9th Cir 2014): Almanza was convicted under California Vehicle Code 10851(a) (permanently or temporarily taking a motor vehicle from the owner without permission).  The statute is in the alternative and the record did not reflect which kind of theft was applicable to Almanza.  The code section is one of moral turpitude for immigration purposes and subject to deportation of an alien if the vehicular theft is “permanent,”  but not if “temporary.”  But the record does not show which alternative.  So, the 9th Circuit panel remanded to the IJ to find out.

Why a remand? Let the alien submit the record to establish the theft was “temporary.” The lawyer probably didn’t know the procedure and the 9th Circuit panel invented its own rule and provided the explanation.
Talk about academic hair splitting.  Why should an illegal alien commit a crime of theft and stay in this country based on statutory quibble or without furnishing the court with the record?

For other immigration cases go to earlier pages.

Maricopa Co., Arizona v. Angel Valenzuela, 135 S.Ct. 428 (2014)

The 9th Circuit has stymied every attempt by the State of Arizona to identify and return illegal aliens who illegally entered this country.  If the federal government, which insists on unqualified immigration jurisdiction, would adopt Arizona statutes the immigrant issue would be resolved.  In Maricopa County 8 years ago the citizens enacted a statute by referendum denying bail for persons arrested and detained for determination of legal status.  Obviously an illegal alien is likely to flee after arrest and incarceration if bail is unnecessary.  Not according to a 9th Circuit panel denying enforcement of the Arizona statute on an en banc hearing reversing the three judge panel that had enforced the law; 770 F.3d 772 (2014).

The naiveté of this court is incomparable.  Does anyone think a person in detention will not flee as soon as he is released because of his illegal status in the country?  The 9th Circuit court, using the old worn out, all purpose policy excuse of the Due Process Clause, invalidated the statute. The County sought a stay of the order but the Supreme Court denied  the petition. Justice Thomas commented:.

Statement of Justice THOMAS, with whom Justice SCALIA joins, respecting the denial of the application for a stay.

“Petitioner [Maricopa Co.] asks us to stay a judgment of the United States Court Appeals for the Ninth Circuit holding unconstitutional an amendment to the Arizona Constitution that the State’s citizens approved overwhelmingly in a referendum eight years ago. I join my colleagues in denying this application only because there appears to be no “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.” Hollingsworth v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (per curiam). That is unfortunate.

We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) (SCALIA, J., dissenting from denial of certiorari: (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decision striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991); Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ––– U.S. ––––, 135 S.Ct. 265, ––– L.Ed.2d –––– (2014); Smith v. Bishop, ––– U.S. ––––, 135 S.Ct. 271, ––– L.Ed.2d –––– (2014); Rainey v. Bostic, ––– U.S. ––––, 135 S.Ct. 286, ––– L.Ed.2d –––– (2014); Walker v. Wolf, ––– U.S. ––––, 135 S.Ct. 316, ––– L.Ed.2d –––– (2014); see also Otter v. Latta, ––– U.S. ––––, 135 S.Ct. 345, –––L.Ed.2d –––– (2014) (denying a stay); Parnell v. Hamby, ––– U.S. ––––, 135 S.Ct. 399, ––– L.Ed.2d –––– (2014) (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment. Of course, the Court has yet to act on a petition for writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.”

Justice Thomas is correct.  The referendum was enacted by Arizona voters contingent on state sovereignty.  The Supreme Court may understandably agree the federal government exercises jurisdiction on who may enter the country, but once a person is inside country borders state sovereignty exists, and the  people decide requirements for residence.

 


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Urooj v. Holder, 734 F.3d 1075 (9th Cir. 2013

This Blog does not often discuss immigration cases because of their volume and despite innumerable judicial mistakes in the 9th Circuit.  But Urooj v. Holder, a 2-1 decision, illustrates the total absence of common sense in the 9th Circuit.

The undisputed record establishes that Urooj lied about her application for asylum, paid an “acquaintance” to memorize her false story at the IJ hearing, and who interpreted for her. At the IJ hearing, Urooj refused to answer any questions asked by the government lawyer who introduced her sworn statement conceding her false answers on grounds of impeachment. The IJ ordered her removal.

The 9th circuit panel held the government has the burden of proof to establish loss of a right to asylum. Why?  The person seeking asylum should have the burden of establishing the right to live in the U.S.  In any event, because the petitioner refused to answer questions posed by the government, the latter introduced her admission of false statements as impeachment (of her silence) evidence.  According to the 9th Circuit panel, since Urooj refused to answer questions, there was nothing to impeach, her silence was irrelevant, and no adverse conclusion could be drawn by the IJ.

Absurd.  This person, admitting she lied and refused to answer questions, is allowed to stay in this country?  Using evidentiary rules in litigation for impeachment in an IJ hearing?  If the panel insisted on using federal evidence law all they had to do was convert the impeachment statement to substantive law.  Is this panel decision form over substance? And now the case has to be reheard.  And we  wonder why the 9th Circuit has such a backlog and why we don’t review their immigration decisions.   This case can be decided in 2 paragraphs.

U.S. v. State of Arizona, 689 F.3d 1132 (9th Cir. 2012)

Although the Supreme Court held an Arizona statute limiting entry of illegal aliens could not be enforced, with the exception of one section, the 9th Circuit had originally reversed the entire statute; 641 F.3d 339 (9th Cir.2011).  In U.S. v. State of Arizona, (cited above) the 9th Circuit on remand transferred the case to U.S. District Court to enforce the Supreme Court mandate.

In the original litigation the U.S. sued the State of Arizona, arguing federal law preempted the state statute; Arizona v. U.S.  132 S.Ct. 2492 (2012).  Assuming the Supreme Court is correct, why should the federal government sue the state and its enforcement laws limiting illegal aliens?  Why not cooperate with the state instead of intimidating it?

Or, even assuming federal law preempts state law, the US government can ignore premption and not assert it.

In any event, add another case to the list of 9th Circuit reversals.  The record is now 18 out of 25. 

 

Sawyers v. Holder, 399 F.Appx. 313 (2010); Reversed: 132 S.Ct. 7 (2012)

Because the volume of immigration cases in the 9th Circuit is so heavy, and most cases fact intensive, we do not review them. But a recent case entitled Sawyers v. Holder illustrates the damage to the court system by the 9th Circuit deplorable record of reversals.  People forget that 9th Circuit cases reversed by the Supreme Court occur after the conclusion of years of litigation.  In the interim, all cases relying on 9th Circuit opinions as precedent continue to rely on the original decision.  When the Supreme Court reverses a 9th Circuit case years later, all its erroneously decided cases remain unaffected (although non citeable) on the books and a party escapes responsibility.

Sawyers illustrates this.  In 2005 the 9th Circuit sanctioned imputing the residence of the mother to the child for purposes of challenging deportation; Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005).  In 2009 the 9th Circuit cited Cuevas-Gaspar as precedent in applying its rule to Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009).  And in Sawyers v. Holder, 399 F.Appx. 313 (2010) the 9th Circuit cited  these two cases again and approved the doctrine of imputing residence of the mother to the child in the context of a deportation proceeding.

In 2012  the Supreme Court decided  Holder v. Martinez Guttierrez,132 S.Ct. 71 (2012)  reversing the 9th Circuit decision and its holding in Sawyers v. Holder. During the 7 year interim between 2005 and 2012 the BIA in the 9th Circuit was governed by three cases wrongfully decided. The 9th Circuit erroneous “imputation” rule applied to anyone within that category for 7 years.  On remand from the Supreme Court in Sawyers v. Holder the 9th Circuit admitted its two earlier cases were also wrongly decided; Sawyers v. Holder, 2012 WL2507513 (C.A. 9).

Extrapolate that rationale to Supreme Court death penalty cases reversing the 9th Circuit. While a 9th Circuit case and its decision slowly winds its way through the court system, the court cites it as precedent to other cases in later opinions. /Assume the Supreme Court ultimately reverses the original decision in a later case that, in effect, reverses a trail of 9th Circuit cases. All these cases were wrongly decided but unreviewable now.  In the current term of the Supreme Court the Justices reversed three death penalty cases wrongly decided by the 9th Circuit.  Aside from all the delay incurred, these cases were precedent for other cases wrongly decided by the 9th Circuit.   

Myers v. Holder, 661 F.3d 1178 (9th Cir. 2011)

Meyers v. Holder is an immigration case decided eight months ago in a 2-1 9th Circuit panel decision, and written by the same judge who sought clemency for Shirley Smith despite three Supreme Court reversals. The decision represents a serious departure from integrity and a questionable disrespect for the law.

Meyers originally sought delay of his deportation in federal court and his request was denied. His petition for cert. in the Supreme Court was denied  Returning to the 9th Circuit, he sought mandate to delay deportation until the BIA heard his motion to rehear the case.  The majority opinion cites nothing but a string of cases based on procedural law and ignores the absence of any request to the BIA for reopening the hearing.  No analysis, no reasoning. Motion to stay mandate granted.

The dissenting judge cities the BIA statutory and Agency rule applicable in considering a motion to reopen. Meyers never submitted his request for a stay to the BIA.  The court majority overrides the statute, ignores BIA rules and regulations,  and grants the stay without  any explanation.

Teposte v. Holder, 632 F.3d 2049 (C.A. 9)

Teposte v. Holder, 2011 WL  4189302  (C.A. 9); amended: 2011 WL 167037 (C.A. 9)

Teposte was admitted into the United States as a lawful permanent resident (also known as amnesty). One year later he was convicted of Cal. Pen. Code 246, “firing at an inhabited dwelling.” The AG filed a removal proceeding. At the immigration hearing the IJ ruled the conviction constituted an “aggravated felony” (crime of violence), a deportable offense, disqualifies cancellation of removal, and ordered deportation; 18 U.S.C. 16 (b). The BIA affirmed.

Federal law defines a crime of violence as “any felony . . . involv[ing] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Whether firing at an inhabited dwelling is a “crime of violence” is so obvious that deportation should be automatic. No, the Ninth Circuit panel engages in academic hairsplitting unintelligible to the average person.  The court holds that reckless conduct or gross negligence is insufficient to categorize P.C. 246 as a “crime of violence.” Only if the act was committed intentionally does a conviction qualify.  “Recklessness” in htis context is not a crime of violence?

Assuming gross negligence might escape the definition of a “crime of violence,” common sense would justify the DA to dismiss the case.

The court admits its holding is restricted by a prior Ninth Circuit case, but another common sense application of an “aggravated felony” awaits the Supreme Court.