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.