It was many years ago, probably around 1984 or 1985, that I saw the movie "Merry Christmas Mr. Lawrence" at an arthouse movie theater in Hong Kong. I think I saw it with Perry. We were fanatical movie fans then. The theme song is so moving and beautiful that it has since been etched in my mind. Here is the live performance by Sakamoto Ryuichi (坂本龍一).
Friday, October 30, 2009
Thursday, October 29, 2009
Statement of ABA President Carolyn B. Lamm in American Bar Association vs. Federal Trade Commission
Statement of ABA President Carolyn B. Lamm
in American Bar Association vs. Federal Trade Commission
copied from ABA website: http://www.abanet.org/abanet/media/statement/statement.cfm?releaseid=810
--------------------------------------------------------------------------------
ABA Applauds Injunction, Summary Judgment in Red Flags Suit
WASHINGTON, D.C., Oct. 29, 2009 -- This ruling is an important victory for American lawyers and the clients we serve. The court recognized that the Federal Trade Commission’s interpretation of the Fair and Accurate Credit Transactions Act over-reaches and its application to lawyers is unreasonable. By voiding the FTC’s interpretation of a statute that was clearly not intended to apply to the legal profession, the court has ensured that lawyers stay focused on the mission of their work: providing aid and counsel to the individuals and organizations that need us.
With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.
in American Bar Association vs. Federal Trade Commission
copied from ABA website: http://www.abanet.org/abanet/media/statement/statement.cfm?releaseid=810
--------------------------------------------------------------------------------
ABA Applauds Injunction, Summary Judgment in Red Flags Suit
WASHINGTON, D.C., Oct. 29, 2009 -- This ruling is an important victory for American lawyers and the clients we serve. The court recognized that the Federal Trade Commission’s interpretation of the Fair and Accurate Credit Transactions Act over-reaches and its application to lawyers is unreasonable. By voiding the FTC’s interpretation of a statute that was clearly not intended to apply to the legal profession, the court has ensured that lawyers stay focused on the mission of their work: providing aid and counsel to the individuals and organizations that need us.
With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.
Wednesday, October 28, 2009
Liam Schwartz's Consular Corner
I have always enjoyed Liam Schwartz's Consular Corner (available via www.ilw.com). It never fails to provide me with useful information and insights into the mysterious consular world. The latest October 2009 posting is of no exception. Here are some interesting excerpts:
Respect for colleagues and customers is part of formalized State Department policy:
"The treatment of our customers is an important aspect of how we are perceived as an agency. Because people will generally treat each other the way they are treated, good customer service must begin with the way we interact with each other. It is the policy of the Department that our employees must treat each other, as well as our external customers, with proper respect and courtesy at all times."
3 FAM 1332
Coram Nobis
The FAM has previously indicated that the vacating of a conviction on a writ of coram nobis eradicates the conviction for immigration purpose. The FAM now provides a definition of the legal term: "Writ of coram nobis, from Latin 'in our presence' an order by a court of appeal to a court which rendered judgment requiring that trial court to consider facts not on the trial record which might have resulted in a different judgment if known at the time of the trial."
http://www.state.gov/documents/organization/86942.pdf
Crimes involving Moral Turpitude
A revised definition of "Voluntary Manslaughter" is given. Per this definition, voluntary manslaughter involves "an action that was sufficient to incite an "ordinary person" to "sudden and intense passion "such that s/he loses self control." An example provided to consular officers of the kind of situation which could result in voluntary manslaughter is "when a person finds his/her spouse in bed with another person."
http://www.state.gov/documents/organization/86942.pdf
Respect for colleagues and customers is part of formalized State Department policy:
"The treatment of our customers is an important aspect of how we are perceived as an agency. Because people will generally treat each other the way they are treated, good customer service must begin with the way we interact with each other. It is the policy of the Department that our employees must treat each other, as well as our external customers, with proper respect and courtesy at all times."
3 FAM 1332
Coram Nobis
The FAM has previously indicated that the vacating of a conviction on a writ of coram nobis eradicates the conviction for immigration purpose. The FAM now provides a definition of the legal term: "Writ of coram nobis, from Latin 'in our presence' an order by a court of appeal to a court which rendered judgment requiring that trial court to consider facts not on the trial record which might have resulted in a different judgment if known at the time of the trial."
http://www.state.gov/documents/organization/86942.pdf
Crimes involving Moral Turpitude
A revised definition of "Voluntary Manslaughter" is given. Per this definition, voluntary manslaughter involves "an action that was sufficient to incite an "ordinary person" to "sudden and intense passion "such that s/he loses self control." An example provided to consular officers of the kind of situation which could result in voluntary manslaughter is "when a person finds his/her spouse in bed with another person."
http://www.state.gov/documents/organization/86942.pdf
FTC Reg Flag Rule Effective on November 1, 2009
From the New Jersey Law Journal:
FTC RULE WILL REQUIRE IDENTITY THEFT PROGRAMS AT LAW FIRMS
Starting Nov. 1, lawyers around the country will be required to comply with a new Federal Trade Commission rule aimed at spotting the warning signs of identity theft, though bar organizations are lined up against applying the "Red Flags Rule" to attorneys. The rule implements a statute that requires businesses and organizations that act as "creditors" to establish programs for preventing identity theft, and the FTC construes "creditors" to include lawyers, doctors and other professionals who bill for their services rather than demand payment on the spot. State bar associations, including New Jersey's, have passed resolutions opposing the FTC's interpretation and the American Bar Association sued the agency in August, claiming it exceeded its mandate and acted arbitrarily and capriciously by including lawyers in its definition of creditors.
FTC RULE WILL REQUIRE IDENTITY THEFT PROGRAMS AT LAW FIRMS
Starting Nov. 1, lawyers around the country will be required to comply with a new Federal Trade Commission rule aimed at spotting the warning signs of identity theft, though bar organizations are lined up against applying the "Red Flags Rule" to attorneys. The rule implements a statute that requires businesses and organizations that act as "creditors" to establish programs for preventing identity theft, and the FTC construes "creditors" to include lawyers, doctors and other professionals who bill for their services rather than demand payment on the spot. State bar associations, including New Jersey's, have passed resolutions opposing the FTC's interpretation and the American Bar Association sued the agency in August, claiming it exceeded its mandate and acted arbitrarily and capriciously by including lawyers in its definition of creditors.
Tuesday, October 27, 2009
The Good, the Bad and the Ugly (Il buono, il brutto, il cattivo)
Airfix's Cowboy
Actually, this figure looks more like Lee Van Cleef in "For a Few More Dollars."
Revell's Cowboy
Monday, October 26, 2009
Krasilych v. Holder, No. 09-1026 (7th Cir. Sept. 9, 2009).
Krasilych v. Holder, No. 09-1026 (7th Cir. Sept. 9, 2009).
Where the BIA issues its own opinion and does not expressly adopt the IJ’s findings, a court of appeals review the BIA’s decision. This court reviews the agency’s legal conclusions de novo, and this court will uphold the agency’s factual determinations so long as they are supported by substantial evidence.
The petitioner’s contention that evidence gathered from Operation Durango must be suppressed if the government does not prove that the investigation adhered to the Attorney General’s Guidelines for INS Undercover Operations is a mischaracterization of this court’s holding in Pieniazek v. Gonzales, 449 F.3d 792 (7th Cir. 2006). In Pieniazek, this court held that the Attorney General’s Guidelines for INS Undercover Operations were still relevant to undercover investigations despite the fact that former INS is now part of Homeland Security. However, this court expressed no opinion about whether the guidelines were legally enforceable or, if so, whether failure to follow them would require exclusion of evidence.
The Attorney General’s Guidelines for INS Undercover Operations are internal rules that have no legal force. Unlike regulations, which are adopted after notice and comment, internal rules do not bind an agency: if all the Attorney General has done is to tell his staff how he wants to exercise his discretion—language that brings his subordinates’ acts in line with his wishes but does not reduce his discretion to do otherwise—then there is no substantive rule enforceable in any forum.
Even assuming that the Attorney General’s Guidelines for INS Undercover Operations are enforceable and were not followed in Operation Durango, the BIA was still correct in approving the IJ’s decision to deny the petitioner’s request to exclude evidence because the exclusionary rule generally does not apply in removal proceedings.
The Court previously left open the possibility that the exclusionary rule may apply where there have been egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. What the Fourth Amendment, which prohibits unreasonable searches and seizures, has to do with the petitioner’s involvement in Operation Durango-- a three-year undercover investigation coordinated by immigration authorities, the FBI, and the Social Security Administration, targeting the fraudulent procurement of immigration benefits--escapes this court, and he has not even come close to identifying an “egregious violation” of any other liberty.
The petitioner’s argument that the temporary I-551 stamp on his passport obtained during a three-year undercover investigation coordinated by immigration authorities, the FBI, and the Social Security Administration, targeting the fraudulent procurement of immigration benefits conferred upon him lawful permanent resident status is without merit.
The I-551 stamp on the petitioner’s passport was “authentic” in the sense that the same stamp would have been used if the government had approved a bona fide application for permanent residence. When used legitimately, the stamp is a symbol that immigration authorities have favorably adjudicated an application to adjust status, and in the absence of “countervailing evidence” the stamp itself can be used to verify a claim of permanent residence. Where the petitioner’s application to adjust status was never adjudicated, and where he “countervailing evidence” makes clear that the stamp—which expired of its own accord in 2001—was placed in his passport only to give Operation Durango’s fraudulent-document scheme the appearance of legitimacy, the I-551 stamp is symbolic of nothing.
Because the agency’s determination of removability is supported by substantial evidence, and the petitioner did not apply for relief from removal, the order of removal must stand.
Where the BIA issues its own opinion and does not expressly adopt the IJ’s findings, a court of appeals review the BIA’s decision. This court reviews the agency’s legal conclusions de novo, and this court will uphold the agency’s factual determinations so long as they are supported by substantial evidence.
The petitioner’s contention that evidence gathered from Operation Durango must be suppressed if the government does not prove that the investigation adhered to the Attorney General’s Guidelines for INS Undercover Operations is a mischaracterization of this court’s holding in Pieniazek v. Gonzales, 449 F.3d 792 (7th Cir. 2006). In Pieniazek, this court held that the Attorney General’s Guidelines for INS Undercover Operations were still relevant to undercover investigations despite the fact that former INS is now part of Homeland Security. However, this court expressed no opinion about whether the guidelines were legally enforceable or, if so, whether failure to follow them would require exclusion of evidence.
The Attorney General’s Guidelines for INS Undercover Operations are internal rules that have no legal force. Unlike regulations, which are adopted after notice and comment, internal rules do not bind an agency: if all the Attorney General has done is to tell his staff how he wants to exercise his discretion—language that brings his subordinates’ acts in line with his wishes but does not reduce his discretion to do otherwise—then there is no substantive rule enforceable in any forum.
Even assuming that the Attorney General’s Guidelines for INS Undercover Operations are enforceable and were not followed in Operation Durango, the BIA was still correct in approving the IJ’s decision to deny the petitioner’s request to exclude evidence because the exclusionary rule generally does not apply in removal proceedings.
The Court previously left open the possibility that the exclusionary rule may apply where there have been egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. What the Fourth Amendment, which prohibits unreasonable searches and seizures, has to do with the petitioner’s involvement in Operation Durango-- a three-year undercover investigation coordinated by immigration authorities, the FBI, and the Social Security Administration, targeting the fraudulent procurement of immigration benefits--escapes this court, and he has not even come close to identifying an “egregious violation” of any other liberty.
The petitioner’s argument that the temporary I-551 stamp on his passport obtained during a three-year undercover investigation coordinated by immigration authorities, the FBI, and the Social Security Administration, targeting the fraudulent procurement of immigration benefits conferred upon him lawful permanent resident status is without merit.
The I-551 stamp on the petitioner’s passport was “authentic” in the sense that the same stamp would have been used if the government had approved a bona fide application for permanent residence. When used legitimately, the stamp is a symbol that immigration authorities have favorably adjudicated an application to adjust status, and in the absence of “countervailing evidence” the stamp itself can be used to verify a claim of permanent residence. Where the petitioner’s application to adjust status was never adjudicated, and where he “countervailing evidence” makes clear that the stamp—which expired of its own accord in 2001—was placed in his passport only to give Operation Durango’s fraudulent-document scheme the appearance of legitimacy, the I-551 stamp is symbolic of nothing.
Because the agency’s determination of removability is supported by substantial evidence, and the petitioner did not apply for relief from removal, the order of removal must stand.
Sunday, October 25, 2009
Againcourt, October 25, 1415
St. Crispin's and St. Crispinian's Day
Guillaume de Martel, Sire de Bacqueveille, bearer of the Oriflamme at Agincourt. He was killed in combact and the Oriflamme was lost. Matthew Bennett, Againcourt 1415: Triumph Against the Odds, Osprey Campaign No. 9 (1991).
Guillaume de Martel, Sire de Bacqueveille, bearer of the Oriflamme at Agincourt. He was killed in combact and the Oriflamme was lost. Matthew Bennett, Againcourt 1415: Triumph Against the Odds, Osprey Campaign No. 9 (1991).
Saturday, October 24, 2009
Sunday, October 18, 2009
Hotaru No Hikari (螢之光) series
I got up early this morning. It was raining outside and was still dark and quiet. I could hear the rain dropping on the canvas cover outside my window that the workers left there last week. It was peaceful.
I went and made peanut butter and jam sandwiches. After wrapping myself snuggly inside a blanket, I watched the Hotaru No Hikari (螢之光) series. I have not enjoyed myself like that for a long time.
I went and made peanut butter and jam sandwiches. After wrapping myself snuggly inside a blanket, I watched the Hotaru No Hikari (螢之光) series. I have not enjoyed myself like that for a long time.
Thursday, October 15, 2009
Lin v. Holder, No. 07-0591-ag (2d Cir. Oct. 14, 2009).
Lin v. Holder, No. 07-0591-ag (2d Cir. Oct. 14, 2009).
Where the petitioner’s activity as a nurse in China includes sometimes performing examinations to pregnant women to determine a fetus’s position so that a forced abortion could be performed pursuant to China’s family planning policy, it does not amount to “assistance or participation” in persecution which would render her ineligible for asylum or withholding of removal under the INA’s “persecutor bar.”
A court of appeals reviews the BIA’s factual findings under the substantial evidence standard, and uphold them if they are supported by reasonable, substantial and probative evidence in the record. On the other hand, the BIA’s application of law to fact is reviewed de novo.
Where the BIA did not expressly ‘adopt’ the IJ's decision, but its brief opinion closely tracks the IJ’s reasoning, this court considers in the interest of completeness both the IJ and BIA opinions, especially where doing so does not affect the outcome.
The Secretary of Homeland Security or the Attorney General may grant asylum to an alien determined to be a “refugee” within the meaning of the INA. The INA defines a “refugee” as a person who is unable or unwilling to return to a country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Excluded from that definition is “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” This exclusion, the so-called “persecutor bar,” prevents those who have persecuted others or assisted or participated in the persecution of others from gaining refugee status and seeking asylum in the United States. The bar also applies to those seeking withholding of removal, but it does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture.
In this Circuit, four relevant factors determine whether the persecutor bar applies to a particular alien:(1) whether the alien was “involved in” acts of persecution by ordering, inciting, or actively carrying out the acts;(2) whether there is a nexus between the persecution and the victim’s race, religion, nationality, membership in a particular social group, or political opinion; (3) whether the alien’s actions, if not outright “involvement” under the first factor, amount to assistance or participation in persecution; and (4) whether the alien had sufficient knowledge that her actions might assist in persecution to make those actions culpable. For the persecutor bar to apply, an alien’s conduct must be persecution under either the first or third factors, and must also satisfy the second and fourth factors. In short, the petitioner is a persecutor if she knowingly did or assisted acts that would be persecution on account of the victim’s race, religion, nationality, membership in a particular social group, or political opinion.
It is settled law that forced abortion is persecution on account of political opinion.
In determining whether conduct amounts to ‘assistance’ in persecution, this court looks to the alien’s behavior as a whole. Where the alien’s conduct is active and has direct consequences for the victims it is ‘assistance in persecution.’
Where the conduct is tangential to the acts of oppression and passive in nature, however, this court declines to hold that it amounts to such assistance for the victims it is ‘assistance in persecution.’ Where the conduct is tangential to the acts of oppression and passive in nature, however, this court declines to hold that it amounts to such assistance.
Where the petitioner worked as a driver for the county health department in China and occasionally transported pregnant women to hospitals in the locked back of a van, against their will, so that county officials could perform forced abortions on them pursuant to China’s mandatory family planning policies, the petitioner is subject to the persecutor bar because through his actions, he played an active and direct, if arguably minor, role, and contributed directly to the persecution because by driving the van in which the women were locked, it ensured that the women were delivered to the place of their persecution.
The petitioner’s argument that his actions of transporting pregnant women to hospitals in the locked back of a van, against their will, so that county officials could perform forced abortions on them were involuntary, and therefore excusable, is without merit. Nothing in the record indicates that the petitioner did not have the ability to quit his job as a driver at any time in order to avoid the persecution of women.
The petitioner’s argument that his application for political asylum should have been saved by the redemptive act that he once allowed an unguarded pregnant woman he was transporting to go free after she pleaded with him is without merit. Redemptive behavior is not necessarily irrelevant to the inquiry as to whether an applicant has assisted in persecution, but the BIA was not in error when it determined that the petitioner was ineligible for asylum.
On the other hand, providing post-surgical care, including the taking of temperature and the recording of vital signs, as a nurse at a public hospital to women who had undergone forced abortion did not contribute to, or facilitate, the victims’ forced abortions in any ‘direct’ or ‘active’ way because the petitioner’s conduct neither caused the abortions, nor made it easier or more likely that they would occur; the actions were, at most, ‘tangential,’ ‘passive accommodation’ of the conduct of others and did not trigger the persecutor bar.
As to the single incident where the petitioner guarded forced abortion patients, this Court observed that guarding patients awaiting forced abortions comes closer to active assistance than does post-operative monitoring of vital signs, but where the petitioner was unarmed, and where she performed actual guard duties for only approximately ten minutes before accompanying one of the patients to the restroom and helped one of the patients to escape and lost her job as a result, the petitioner’s conduct, considered in its entirety, was tangential, and not sufficiently direct, active, or integral to the administering of forced abortions as to amount to assistance in persecution.
Where the examinations that the petitioner assisted were used to detect the position and health of the fetus--the kinds of examinations (e.g., ultrasounds) which were given to all pregnant women, whether the pregnancy is scheduled to result in a live birth, a voluntary abortion, or a forced abortion, they were more akin to routine patient care than a protocol specific to forced abortions and did not contribute to, or facilitate, the victims’ forced abortions in any ‘direct’ or ‘active’ way because they did not cause the abortions, nor did they make it more likely that they would occur. The petitioner’s actions were therefore tangential, and not sufficiently direct, active, or integral to the administering of forced abortions as to amount to assistance in persecution.
Although a redemptive act itself is not dispositive, this court must view the petitioner’s conduct as a whole, and the act of opening a side door of the hospital and allowing the woman who was scheduled for a forced abortion to escape by motorcycle with her husband while the guard was asleep suggests that she did not actively assist or participate in persecution.
In order to establish eligibility for CAT withholding, the petitioner must demonstrate that she will more likely than not be tortured if removed to her home country.
Where the petitioner affirmatively testified that she had never been arrested, detained, or physically mistreated in her home country, the IJ and the BIA did not erred in concluding that the petitioner failed to sustain her burden of demonstrating that it was more likely than not that she would be tortured in China.
Where the petitioner’s activity as a nurse in China includes sometimes performing examinations to pregnant women to determine a fetus’s position so that a forced abortion could be performed pursuant to China’s family planning policy, it does not amount to “assistance or participation” in persecution which would render her ineligible for asylum or withholding of removal under the INA’s “persecutor bar.”
A court of appeals reviews the BIA’s factual findings under the substantial evidence standard, and uphold them if they are supported by reasonable, substantial and probative evidence in the record. On the other hand, the BIA’s application of law to fact is reviewed de novo.
Where the BIA did not expressly ‘adopt’ the IJ's decision, but its brief opinion closely tracks the IJ’s reasoning, this court considers in the interest of completeness both the IJ and BIA opinions, especially where doing so does not affect the outcome.
The Secretary of Homeland Security or the Attorney General may grant asylum to an alien determined to be a “refugee” within the meaning of the INA. The INA defines a “refugee” as a person who is unable or unwilling to return to a country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Excluded from that definition is “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” This exclusion, the so-called “persecutor bar,” prevents those who have persecuted others or assisted or participated in the persecution of others from gaining refugee status and seeking asylum in the United States. The bar also applies to those seeking withholding of removal, but it does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture.
In this Circuit, four relevant factors determine whether the persecutor bar applies to a particular alien:(1) whether the alien was “involved in” acts of persecution by ordering, inciting, or actively carrying out the acts;(2) whether there is a nexus between the persecution and the victim’s race, religion, nationality, membership in a particular social group, or political opinion; (3) whether the alien’s actions, if not outright “involvement” under the first factor, amount to assistance or participation in persecution; and (4) whether the alien had sufficient knowledge that her actions might assist in persecution to make those actions culpable. For the persecutor bar to apply, an alien’s conduct must be persecution under either the first or third factors, and must also satisfy the second and fourth factors. In short, the petitioner is a persecutor if she knowingly did or assisted acts that would be persecution on account of the victim’s race, religion, nationality, membership in a particular social group, or political opinion.
It is settled law that forced abortion is persecution on account of political opinion.
In determining whether conduct amounts to ‘assistance’ in persecution, this court looks to the alien’s behavior as a whole. Where the alien’s conduct is active and has direct consequences for the victims it is ‘assistance in persecution.’
Where the conduct is tangential to the acts of oppression and passive in nature, however, this court declines to hold that it amounts to such assistance for the victims it is ‘assistance in persecution.’ Where the conduct is tangential to the acts of oppression and passive in nature, however, this court declines to hold that it amounts to such assistance.
Where the petitioner worked as a driver for the county health department in China and occasionally transported pregnant women to hospitals in the locked back of a van, against their will, so that county officials could perform forced abortions on them pursuant to China’s mandatory family planning policies, the petitioner is subject to the persecutor bar because through his actions, he played an active and direct, if arguably minor, role, and contributed directly to the persecution because by driving the van in which the women were locked, it ensured that the women were delivered to the place of their persecution.
The petitioner’s argument that his actions of transporting pregnant women to hospitals in the locked back of a van, against their will, so that county officials could perform forced abortions on them were involuntary, and therefore excusable, is without merit. Nothing in the record indicates that the petitioner did not have the ability to quit his job as a driver at any time in order to avoid the persecution of women.
The petitioner’s argument that his application for political asylum should have been saved by the redemptive act that he once allowed an unguarded pregnant woman he was transporting to go free after she pleaded with him is without merit. Redemptive behavior is not necessarily irrelevant to the inquiry as to whether an applicant has assisted in persecution, but the BIA was not in error when it determined that the petitioner was ineligible for asylum.
On the other hand, providing post-surgical care, including the taking of temperature and the recording of vital signs, as a nurse at a public hospital to women who had undergone forced abortion did not contribute to, or facilitate, the victims’ forced abortions in any ‘direct’ or ‘active’ way because the petitioner’s conduct neither caused the abortions, nor made it easier or more likely that they would occur; the actions were, at most, ‘tangential,’ ‘passive accommodation’ of the conduct of others and did not trigger the persecutor bar.
As to the single incident where the petitioner guarded forced abortion patients, this Court observed that guarding patients awaiting forced abortions comes closer to active assistance than does post-operative monitoring of vital signs, but where the petitioner was unarmed, and where she performed actual guard duties for only approximately ten minutes before accompanying one of the patients to the restroom and helped one of the patients to escape and lost her job as a result, the petitioner’s conduct, considered in its entirety, was tangential, and not sufficiently direct, active, or integral to the administering of forced abortions as to amount to assistance in persecution.
Where the examinations that the petitioner assisted were used to detect the position and health of the fetus--the kinds of examinations (e.g., ultrasounds) which were given to all pregnant women, whether the pregnancy is scheduled to result in a live birth, a voluntary abortion, or a forced abortion, they were more akin to routine patient care than a protocol specific to forced abortions and did not contribute to, or facilitate, the victims’ forced abortions in any ‘direct’ or ‘active’ way because they did not cause the abortions, nor did they make it more likely that they would occur. The petitioner’s actions were therefore tangential, and not sufficiently direct, active, or integral to the administering of forced abortions as to amount to assistance in persecution.
Although a redemptive act itself is not dispositive, this court must view the petitioner’s conduct as a whole, and the act of opening a side door of the hospital and allowing the woman who was scheduled for a forced abortion to escape by motorcycle with her husband while the guard was asleep suggests that she did not actively assist or participate in persecution.
In order to establish eligibility for CAT withholding, the petitioner must demonstrate that she will more likely than not be tortured if removed to her home country.
Where the petitioner affirmatively testified that she had never been arrested, detained, or physically mistreated in her home country, the IJ and the BIA did not erred in concluding that the petitioner failed to sustain her burden of demonstrating that it was more likely than not that she would be tortured in China.
Napoleonic French 2nd Hussar: Marechal-des-logis Standard Bearer
I painted the Standard Bearer from Strelets 096 Napoleonic French Hussars. This set has some inaccuracy, such as incorrectly having saddlecloths for other ranks instead of shabracks, but I could bear with that to a certain degree.
I used this as reference: Andre Jouineau, Officers and Soldiers of the French Hussars, 2nd Vol. From the 1st to the 8th Regiments 1804-1812 (Historie & Collections, Trans. Alan McKay)(2006). The above image is on page 34, Marechal-des-logis Standard Bearer of the 2nd Hussar in 1805. According to the description, this is copied from a plate in "le Plumet" by Rigo.
I did not follow the reference and painted the sabretache the regular way.
Tuesday, October 13, 2009
Uniform Bar Examination
From New Jersey Law Journal Daily News Alert
UNIFORM BAR EXAMINATION DRAWING CLOSER TO REALITY
It could mark one of the biggest changes for lawyers joining the profession since the first U.S. bar exam was given in Delaware in 1763 — a single bar exam aimed at standardizing attorney credentials nationwide. Next year, at least 10 states are expected to switch to the so-called Uniform Bar Exam, and 22 other jurisdictions are positioned to adopt the test in the next few years, though several of the biggest legal markets have yet to sign on. The test, developed by the National Conference of Bar Examiners will allow law school graduates to transport their bar scores across state lines without re-taking exams. And backers say a uniform exam will improve the quality of bar exams, particularly in states with small test-development budgets.
Monday, October 12, 2009
Chen Shui-Bian v. U.S., No. 10-8003 (CAAF Oct. 6, 2009)
The Court of Appeals for Armed Forces dismissed for lack of jurisdiction the Petition for Extraordinary Relief filed on behalf of Chen Shui-Bian, former President of Republic of China (Taiwan), who has been sentenced bythe ROC (Taiwan) judiciary to life imprisonment for corruption-related chargers. From the web site of the Court of Appeals for Armed Forces:
Misc. No. 10-8003. Chen Shui-Bian, Petitioner v. United States, Respondent. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus was filed by mail under Rule 27(a) on September 21, 2009, and placed on the docket this 6th day of October, 2009. On consideration thereof, it is ordered that said petition is hereby dismissed for lack of jurisdiction.
Misc. No. 10-8003. Chen Shui-Bian, Petitioner v. United States, Respondent. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus was filed by mail under Rule 27(a) on September 21, 2009, and placed on the docket this 6th day of October, 2009. On consideration thereof, it is ordered that said petition is hereby dismissed for lack of jurisdiction.
Saturday, October 10, 2009
Alvarado de Rodriguez v. Holder, No. 08-60585 (5th Cir. Oct. 9, 2009).
Alvarado de Rodriguez v. Holder, No. 08-60585 (5th Cir. Oct. 9, 2009).
Under 8 U.S.C. § 1252(a)(2)(B)(ii), a court of appeals lacks jurisdiction to review the discretionary decisions of the BIA. However, a court of appeals reviews the factual findings of the BIA under the substantial evidence standard, reversing only when the evidence compels a contrary result. A court of appeals reviews questions of law de novo.
Section 1252(a)(2)(B)(ii) of the INA proscribes judicial review of any decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General. Under the INA, the granting of a hardship waiver for an individual is reserved to the discretion of the Attorney General. However the Attorney General does not have unfettered discretion; instead, such discretion is available only if the alien demonstrates that the marriage was entered into in good faith.
The REAL ID Act of 2005 removes jurisdictional bars to direct review of questions of law in final removal, deportation, and exclusion orders. Under the REAL ID Act, the predicate legal question of whether the IJ properly applied the law to the facts in determining the alien’s eligibility for discretionary relief is a question of law properly raised in a petition for review.
The petition for review is properly before a court of appeals when neither the IJ nor the BIA made the discretionary decision to deny the petitioner a good faith hardship waiver, and when the BIA held that the petitioner was statutorily ineligible for a hardship waiver because she failed as a matter of law to marshal sufficient evidence of good faith.
Where the petitioner raises challenges to the standard of review applied by the BIA to the factual findings of the IJ and contends that the BIA erred in finding her evidence legally insufficient to establish good faith, and where the petitioner also presents a constitutional challenge to the admission of an affidavit by her ex-husband, there are legal and constitutional issues unrelated to the discretion reserved to the Attorney General, and accordingly, jurisdiction is proper.
The BIA’s consideration of the IJ’s findings of fact and credibility determinations is limited to a clear error review. Under 8 C.F.R. § 1003.1(d)(3)(I), the BIA cannot engage in de novo review of findings of fact determined by an immigration judge. Instead, the BIA reviews those facts, including credibility determinations, only to determine whether they are clearly erroneous. The BIA may not overturn an IJ’s factual findings “simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder.
Common sense as well as the weight of authority requires that a court of appeals determines whether the BIA applied the correct legal standard, not simply whether it stated the correct legal standard. Quite simply, the BIA is not entitled to state the correct legal standard but actually apply an incorrect standard. The BIA may not re-weigh the evidence submitted and substitute its own judgment for that of the IJ absent clear error.
The BIA erred as a matter of law by misapplying the appropriate standard of review when it: (1) all but ignored the significant testimony and documentary evidence that was found by the IJ to be candid, specific, plausible, consistent with supporting documentation, internally consistent, and unembellished; (2) did not find clearly erroneous the factual findings or credibility determinations of the IJ, and it adopted such findings as its own; (3) relied upon a hearsay document that was disregarded by the IJ and does not necessarily lead to an adverse inference about the nature of the petitioner’s marriage.
Under 8 U.S.C. § 1252(a)(2)(B)(ii), a court of appeals lacks jurisdiction to review the discretionary decisions of the BIA. However, a court of appeals reviews the factual findings of the BIA under the substantial evidence standard, reversing only when the evidence compels a contrary result. A court of appeals reviews questions of law de novo.
Section 1252(a)(2)(B)(ii) of the INA proscribes judicial review of any decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General. Under the INA, the granting of a hardship waiver for an individual is reserved to the discretion of the Attorney General. However the Attorney General does not have unfettered discretion; instead, such discretion is available only if the alien demonstrates that the marriage was entered into in good faith.
The REAL ID Act of 2005 removes jurisdictional bars to direct review of questions of law in final removal, deportation, and exclusion orders. Under the REAL ID Act, the predicate legal question of whether the IJ properly applied the law to the facts in determining the alien’s eligibility for discretionary relief is a question of law properly raised in a petition for review.
The petition for review is properly before a court of appeals when neither the IJ nor the BIA made the discretionary decision to deny the petitioner a good faith hardship waiver, and when the BIA held that the petitioner was statutorily ineligible for a hardship waiver because she failed as a matter of law to marshal sufficient evidence of good faith.
Where the petitioner raises challenges to the standard of review applied by the BIA to the factual findings of the IJ and contends that the BIA erred in finding her evidence legally insufficient to establish good faith, and where the petitioner also presents a constitutional challenge to the admission of an affidavit by her ex-husband, there are legal and constitutional issues unrelated to the discretion reserved to the Attorney General, and accordingly, jurisdiction is proper.
The BIA’s consideration of the IJ’s findings of fact and credibility determinations is limited to a clear error review. Under 8 C.F.R. § 1003.1(d)(3)(I), the BIA cannot engage in de novo review of findings of fact determined by an immigration judge. Instead, the BIA reviews those facts, including credibility determinations, only to determine whether they are clearly erroneous. The BIA may not overturn an IJ’s factual findings “simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder.
Common sense as well as the weight of authority requires that a court of appeals determines whether the BIA applied the correct legal standard, not simply whether it stated the correct legal standard. Quite simply, the BIA is not entitled to state the correct legal standard but actually apply an incorrect standard. The BIA may not re-weigh the evidence submitted and substitute its own judgment for that of the IJ absent clear error.
The BIA erred as a matter of law by misapplying the appropriate standard of review when it: (1) all but ignored the significant testimony and documentary evidence that was found by the IJ to be candid, specific, plausible, consistent with supporting documentation, internally consistent, and unembellished; (2) did not find clearly erroneous the factual findings or credibility determinations of the IJ, and it adopted such findings as its own; (3) relied upon a hearsay document that was disregarded by the IJ and does not necessarily lead to an adverse inference about the nature of the petitioner’s marriage.
NJ Mandatory CLE
News from New Jersey Law Journal
N.J. Court Unveils MCLE Plan: 24 Hours Every Two Years
After two years of factfinding and deliberation, New Jersey's Supreme Court announced Thursday that it will require mandatory continuing legal education for all plenary-licensed attorneys, starting next year. Under the plan proposed by the justices [see notice to the bar], attorneys licensed to practice in New Jersey, including judges, law school professors and limited license in-house counsel, will have to take 24 hours of continuing legal education every two years. By the same stroke, the Court will abolish the skills and methods course now required of all newly admitted attorneys. The Court largely adopted the recommendations of its Ad Hoc Committee on Continuing Legal Education, chaired by former Supreme Court Justice Peter Verniero, which held extensive public hearings before issuing its report to the justices last December.
N.J. Court Unveils MCLE Plan: 24 Hours Every Two Years
After two years of factfinding and deliberation, New Jersey's Supreme Court announced Thursday that it will require mandatory continuing legal education for all plenary-licensed attorneys, starting next year. Under the plan proposed by the justices [see notice to the bar], attorneys licensed to practice in New Jersey, including judges, law school professors and limited license in-house counsel, will have to take 24 hours of continuing legal education every two years. By the same stroke, the Court will abolish the skills and methods course now required of all newly admitted attorneys. The Court largely adopted the recommendations of its Ad Hoc Committee on Continuing Legal Education, chaired by former Supreme Court Justice Peter Verniero, which held extensive public hearings before issuing its report to the justices last December.
Wednesday, October 7, 2009
Tuesday, October 6, 2009
Jean-Louis v. Att’y Gen., No. 07-3311 (3d Cir. Oct. 6, 2009)
U.S. Court of Appeals for the Third Circuit refused to follow Attorney General's Silva-Trevino and Seventh Circuit's Ali v. Mukasey.
Jean-Louis v. Att’y Gen., No. 07-3311 (3d Cir. Oct. 6, 2009).
Applying the established categorical approach, a conviction of simple assault in violation of 18 Pa. Cons. Stat. §§ 2701(b)(2), where the victim is under 12 years of age and the assailant is over 20 years of age, is not a crime involving moral turpitude for purposes of cancellation of removal.
Under the Immigration and Nationality Act, discretionary cancellation of removal is available to an alien who has resided continuously in the United States for seven years. An alien’s period of continuous residency terminates, however, if he commits an offense referred to in 8 U.S.C. § 1182(a)(2) that renders the alien inadmissible to the United States or removable from the United States under 8 U.S.C. § 1227(a)(2). Crimes involving moral turpitude are among the offenses listed in 8 U.S.C. § 1182(a)(2)(A)(i)(I).
The petitioner’s constitutional claim that his rights under INA § 239(a)(1)(C) & (D) and the Due Process Clause of the U.S. Constitution were violated fails at the outset, because an alien seeking discretionary relief from removal has no cognizable liberty or property interest. Moreover, any such failure was harmless, as the petitioner was adequately apprised of the issue, having prepared a brief on the topic of CIMT in anticipation of the objection.
Crimes involving moral turpitude have been held to require conduct that is inherently base, vile, or depraved. In determining whether a state law conviction constitutes a CIMT, the agency and this court, have historically applied a “categorical” approach, focusing on the underlying criminal statute rather than the alien’s specific act. This court thus looks to the elements of the statutory state offense, not to the specific facts, reading the applicable statute to ascertain the least culpable conduct necessary to sustain conviction under the statute.
Where a statute of conviction contains disjunctive elements, some of which are sufficient for conviction of the federal offense and others of which are not, this court has departed from a strict categorical approach. In such a case, this court has conducted a limited factual inquiry, examining the record of conviction for the narrow purpose of determining the specific subpart under which the defendant was convicted. This court has applied this “modified” categorical approach, even when clear sectional divisions do not delineate the statutory variations in order to determine the least culpable conduct sufficient for conviction, and, where a CIMT is asserted, measure that conduct for depravity.
In Shepard v. U.S., 544 U.S. 13, 26 (2005), the Supreme Court opined that the record of conviction includes the charging document, the plea agreement or transcript of the plea colloquy in which the defendant confirmed the factual basis for the plea, or a comparable judicial record of information.
Although we defer to the agency’s determination of whether an offense constitutes a CIMT, we accord no deference to its construction of a state criminal statute, as to which it has no particular expertise.
The determination of the scienter or level of culpability under 18 Pa. Cons. Stat. §§ 2701(b)(2) is important for the BIA itself has drawn a distinction for purposes of deciding whether an offense is a CIMT based on this very aspect of culpability. This court thus disagrees with the IJ’s reasoning that the age of the victim should be considered an aggravating factor.
This court finds that no culpability requirement attaches, explicitly or implicitly, to 18 Pa. Cons. Stat. §§ 2701(b)(2). Unlike subpart 2701(a)(1), which expressly requires that the defendant intentionally, knowingly, or recklessly inflict bodily injury,subpart 2701(b)(2) does not specify the minimum culpability required to trigger enhanced penalties. Nor is such a requirement implicit in the statute. The determination that subpart 2701(b)(2) sets forth a grading factor and not an element of the offense is significant. As a “grading” factor, subpart 2701(b)(2) does not trigger the statutory “gap-filling” provisions, which provide a mental state requirement that would be otherwise missing from “elements” of an offense.
In State v. McCabe, 765 A.2d 176, 180-81 (N.H. 2001), the Court considered what mental state requirement, if any, attached to conduct–“use of a deadly weapon”–that appeared in the penalty section of the offense of “criminal threatening.” The statute did not specify a mental state requirement. The Court concluded that the New Hampshire gap-filling provision, applicable solely to material elements of an offense, did not govern, because the only statutory reference to the use of a deadly weapon is contained in the penalty section of the statute, and the gap-filling provision applies solely to elements of an offense, not to grading factors.
Thus, this court concludes that the Pennsylvania assault statute as written permits a conviction under subpart 2701(b)(2) where the defendant did not know that the victim was under 12 years old.
In Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir. 2005), this court had to determine the minimum culpability required for conviction of the offense of “aggravated assault,” defined under New Jersey law, N.J. Stat. Ann. § 2C:12-1b(5)(a) (West 1995 & Supp. 2004), as the commission of simple assault against “any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.” Finding that commission of an assault against a law enforcement officer was a material element of the offense of aggravated assault, this court cited U.S. v. Rebelo, 358 F.Supp.2d 400, 418-19 (D.N.J. 2005), which applied the New Jersey gap-filling provision, and held that the offender had to have known that the victim was a police officer. Crucial to this court’s analysis—and to the analysis in Rebelo upon which this court relied—was the fact that the relevant conduct appeared in the definition of the offense of aggravated assault and thus was an element thereof. Because the offender had to know that the victim was an officer, the offense reflected the requisite degree of depravity and thus constituted a CIMT.
In the instant case, by contrast, the age of the perpetrator and victim are specified not in the definition of the offense but rather under the separate statutory heading, “grading.” Where the conduct is included under a statutory section entitled, “grading,” rather than under the “definition” of the offense, the conduct is per se not an “element” of the offense. Accordingly, the Pennsylvania gap-filling provisions—that would ordinarily mandate a specific mental state with respect to the victim’s age—do not apply to 18 Pa. Cons. Stat. §§ 2701(b)(2), and there is no culpability requirement as to that subpart.
Based upon the foregoing analysis, this court concludes that the least culpable conduct necessary for conviction under 18 Pa. Cons. Stat. §§ 2701(b)(2) would be a reckless assault by a person over 20 years of age, where the victim, unbeknownst to the defendant, is under 12 years of age.
The BIA has observed that simple assaults have generally been held not to involve moral turpitude. It has repeatedly opined that the hallmark of a CIMT, indeed, is an act accompanied by a vicious motive or a corrupt mind. In Michel v. INS, 206 F.3d 253 (2d Cir. 2000) the Court of Appeals for the Second Circuit thus identified a “corrupt scienter” as the touchstone of moral turpitude. Such depravity, however, is absent when a defendant could be convicted for unwittingly injuring a child—an act that, in our view, reflects a degree of malice no greater than that exhibited by an assault recklessly committed against an adult.
This court normally defers to the agency as to what conduct constitutes a CIMT. This court’s view that reckless assault of a minor, without more, does not constitute a CIMT is bolstered by a recent decision of the Attorney General, Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G. 2008).There, the Attorney General considered whether a statute criminalizing intentional sexual acts directed at a child constituted a CIMT. The statute did not include a mistake-of-age defense. Hence, a defendant who did not know, and had no reason to believe, that the complainant was a minor could face conviction. The Attorney General concluded, therefore, that the statute lacked the “hallmark of moral turpitude”—a “reprehensible act committed with an appreciable level of consciousness or deliberation.” Significantly, the Attorney General stated, “[W]hether the perpetrator knew or should have known the victim’s age is a critical factor in determining whether his or her crime involved moral turpitude for immigration purposes. A finding of moral turpitude under the Act requires that a perpetrator have committed the reprehensible act with some form of scienter.” Id. Thus, in Silva-Trevino, the Attorney General treated the perpetrator’s knowledge regarding the victim’s age as a critical consideration informing the depravity of the crime.
This court’s conclusion that 18 Pa. Cons. Stat. §§ 2701(b)(2) has no mental state requirement, coupled with the Attorney General’s stated view in Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G. 2008) that a defendant’s knowledge regarding the age of his victim may properly bear on the depravity of his conduct, leads inexorably to the conclusion that the Pennsylvania crime of simple assault at 18 Pa. Cons. Stat. §§ 2701 was not a CIMT.
While this court would normally remand to the agency for a decision of a matter that
statutes place primarily in agency hands—namely, the determination of whether a criminal violation constitutes a CIMT—the agency has spoken clearly that scienter as to age is critical to the CIMT inquiry, and that the absence of a scienter requirement is conclusive.
Under the modified categorical approach, the inquiry concludes when this court determines whether the least culpable conduct sufficient to sustain conviction under the statute “fits” within the requirements of a CIMT. However, in the recent opinion of Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) the Attorney General suggested that more is required. However, this court concludes that deference is not owed to Silva-Trevino’s novel approach and thus this court will continue to apply the established modified categorical approach methodology.
The Attorney General’s novel methodology departs from this court’s precedents in two significant respects. First, Silva-Trevino alters the focus of the categorical analysis. Under the categorical approach, consistent with Supreme Court case law, this court looks to the elements of the statutory offense to ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the statute. Under this court’s precedents, the possibility of conviction for non-turpitudinous conduct, however remote, is sufficient to avoid removal; proof of actual application of the statute of conviction to the conduct asserted is unnecessary. As a general rule, a criminal statute defines a crime involving ‘moral turpitude only if all of the conduct it prohibits is turpitudinous. Silva-Trevino eschews our approach of analyzing the least culpable conduct hypothetically sufficient to sustain conviction, in favor of a “realistic probability” test. Under this approach, in evaluating whether an alien’s prior offense is categorically one that involved moral turpitude, immigration judges should determine whether there is a ‘realistic probability, not a theoretical possibility,’ that a State or Federal criminal statute would be applied to reach conduct that does not involve moral turpitude. To demonstrate a realistic probability” of conviction, the alien must identify an actual conviction for comparable conduct.
The “realistic probability” approach focuses the adjudicator on a criminal statute’s actual scope and application and tailors the categorical moral turpitude inquiry by asking whether, at the time of an alien’s removal proceeding, any actual (as opposed to hypothetical) case exists in which the relevant criminal statute was applied to conduct that did not involve moral turpitude. If the statute has not been so applied in any case (including the alien’s own case), the adjudicator can reasonably conclude that all convictions under the statute may categorically be treated as ones involving moral turpitude. In such circumstances, the history of adjudication generally establishes no realistic probability that the statute, whatever its language may hypothetically allow, would actually be applied to acts that do not involve moral turpitude.
Second, Silva-Trevino renders the strict “categorical” approach not “categorical.” Prior to Silva-Trevino, this court departed from a strict categorical analysis only where the statute of conviction featured disjunctive variations, some of which were sufficient for conviction of the federal offense and others of which were not. This court departs farther from the formal categorical approach only where the language of a particular subsection of a statute invites inquiry into the underlying facts of the case.” In such a case, this court modified the approach, but the inquiry remained a limited one, focused on the crime of conviction: this court reviewed only the record of the conviction to ascertain the particular variation of the statute under which the defendant was convicted. Accordingly, the focus under the categorical approach has always been the conviction, aimed at determining exactly what the defendant was convicted of.
Silva-Trevino, by contrast, directs adjudicators to depart from a categorical approach, and to conduct an “individualized moral turpitude inquiry,” in every instance in which a “categorical analysis is not conclusive” as to whether the alien was convicted of a CIMT. The aim of this “individualized” inquiry is to ascertain the alien’s particular acts—to determine “whether the facts of the alien’s prior conviction in fact involved moral turpitude”—not merely to determine the elements of the statutory offense of which the alien was convicted.
Rather than limiting the CIMT inquiry to an examination of the formal record of conviction, which could include the charging document, the terms of the plea agreement or transcript of the colloquy between judge and defendant in which the factual basis for the plea is confirmed by the defendant, or some comparable judicial record of this information, Silva-Trevino abandons these restrictions. The Attorney General concluded that the evidentiary limitations of Taylor and Shepard do not apply for purposes of making moral turpitude determinations. Hence, an adjudicator may, in his or her discretion, consider not only evidence from the prior criminal proceedings but also “any additional evidence or factfinding the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.” Silva-Trevino sets no limitations on the kinds of evidence adjudicators may consider.
As a general rule, an agency’s construction of an ambiguous statute under its purview and in which it has special expertise is entitled to deference. However, where Congress has spoken clearly on the precise issue, no deference is owed to the agency’s interpretation of a statute. This court concludes that a court of appeals is not bound by the Attorney General’s view because it is bottomed on an impermissible reading of the statute, which, this court believes, speaks with the requisite clarity. The ambiguity that the Attorney General perceived in the INA is an ambiguity of his own making, not grounded in the text of the statute, and certainly not grounded in the BIA’s own rulings or the jurisprudence of courts of appeals going back for over a century. The specific ambiguity is as to the use of the words “convicted” and “committed.” The inclusion of “committed,” the Attorney General urged, permits inquiry into any and all acts—whether or not admitted by the
alien, and whether or not established by the record of conviction—to determine whether the petitioner was convicted of a CIMT. To say that this reading has been rejected is an understatement: the BIA, prior attorneys general, and numerous courts of appeals have repeatedly held that the term “convicted” forecloses individualized inquiry in an alien’s specific conduct and does not permit examination of extrarecord evidence. It could not be clearer from the text of the statute––which defines “conviction” as a “formal judgment of guilt,” and which explicitly limits the inquiry to the record of conviction or comparable judicial record evidence—that the CIMT determination focuses on the crime of which the alien was convicted—not the specific acts that the alien may have committed. The statute at 8 U.S.C. § 1101(a)(48)(A) presents no ambiguity.
Congress has prescribed a single definition of “convicted,” applicable to all removable offenses.
This court also takes issue with the Attorney General’s view that the phrase “crime involving moral turpitude” invites inquiry into an alien’s specific acts. The Attorney General’s argument is premised on a fundamental misreading of the relevant language.
The Attorney General viewed “crime” and “involving moral turpitude” as distinct grammatical units and, accordingly, reasons that the clause “involving moral turpitude” modifies “crime.” He thus concluded that Congress intended to authorize inquiry into whether an alien committed the offense in a manner reflecting depravity—that is whether the alien’s particular acts involved moral turpitude. The Attorney General’s view, however, overlooked a crucial fact: crime involving moral turpitude is a term of art, predating even the immigration statute itself. As such, its division into a noun and subordinate clause, as the Attorney General sought to do, distorts its intended meaning. It refers to a specific class of offenses, not to all conduct that happens to “involve” moral depravity, because of an alien’s specific acts in a particular case. Because the Attorney General’s position is premised on a clearly erroneous interpretation of “crime involving moral turpitude,” no deference is owed to his view.
Moreover, although the Attorney General observes–correctly–that “moral turpitude” is rarely an element of the underlying crime triggering removal, it is the offense that must be scrutinized for the requisite degree of depravity. Because the INA requires the conviction of a crime—not the commission of an act—involving moral turpitude, the central inquiry is whether moral depravity inheres in the crime or its elements–not the alien’s underlying conduct. In this way, the concept of a crime involving moral turpitude does not lend itself
to an examination of acts, rather than elements of the crime, any more than does the concept of “crime of violence” under section 101(a)(43)(F) of the INA. Violence, like moral turpitude, is not an element of the underlying offense; rather, we must look at the elements of the crime and measure them against the requirement of “violence.” The use of the term “involves” in “crime involving moral turpitude” is no more expansive than the word “of” in “crime of violence.”
Nor does this court believe that, as a practical matter, determination of whether a conviction “fits” the requirements of a CIMT requires examination of an alien’s underlying conduct.
The Seventh Circuit’s reasoning for abandoning the categorical approach—(1) the rationale for application of the categorical approach in criminal proceedings is inapplicable in the immigration context; (2) scrutiny of an alien’s specific acts is necessary to determine whether a prior conviction fits the criteria of a CIMT; and (3) a recent decision of the BIA permits examination of extra-record evidence in conducting the CIMT inquiry—cannot withstand scrutiny.
First, the Seventh Circuit’s reasons that the twin rationales for the categorical approach articulated in Taylor—simplicity of application and conservation of judicial resources—do not “come into play” in the immigration context is without merits. Administrative efficiency and ease of application are equally, if not more, important in the immigration context than in criminal proceedings.
The Ninth Circuit recently stated that if a court of appeals was to allow evidence that is not part of the record of conviction as proof of whether an alien falls within the reach of an INA removal provision, it essentially would be inviting the parties to present any and all evidence bearing on an alien’s conduct leading to the conviction. Such an endeavor is inconsistent with the streamlined adjudication that a deportation hearing is intended to provide.
Even if this court was inclined to find, as did the Seventh Circuit, that an individualized inquiry would enable more precise determinations regarding removal, and that this benefit outweighed the administrative burden created, this court believes its discretion to adopt such an approach to be foreclosed by the immigration statute itself, which predicates removal on convicted conduct, and which, this court concludes, expressly limits its inquiry to the official record of judgment and conviction, or other comparable judicial record evidence.
Lastly, the Seventh Circuit Court of Appeals erroneously reasoned that a recent opinion of the BIA, Matter of Babaisakov, warrants abandoning its precedents applying the categorical approach to CIMT cases. Babaisakov, however, does not support the far-reaching inquiry that the Seventh Circuit adopted. There, the BIA examined evidence outside the record of conviction for the narrow purpose of determining whether the monetary threshold for removal under section 101(a)(43)(M) was met. Section 101(a)(43)(M) authorizes removal of an alien who is convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
In approving resort to reliable evidence outside the record of conviction to determine the loss amount, the BIA stressed that a categorical approach would be unworkable, as there is no federal or state fraud statute that contains an element requiring loss to the victims exceeding $10,000. This court reached a similar decision in Nijhawan v. Att’y Gen., 523 F.3d 387, 391-92 (3d Cir. 2008). This court reasoned, as the BIA did in Matter of Babaisakov, that a contrary approach, requiring a loss amount to have been ascertained by the jury in the prior criminal proceeding, would essentially gut this basis for removal and impose a totally impractical standard. The practical impediments to application of the categorical approach identified in Nijhawan and Babaisakov, however, are not present in the CIMT context. The BIA and courts of appeals have determined whether moral turpitude inheres in the convicted conduct using a categorical approach for over a century. Hence, Nijhawan and Babaisakov do not support abandoning our established methodology. Because this court concludes that the Seventh Circuit misunderstood the import of Babaisakov, violates clear statutory language requiring proof of actual conviction, and ignores the BIA’s pronouncement that a fact-intensive inquiry would be unduly burdensome, this court does not feel compelled to follow it.
The other aspect of Silva-Trevino—requiring proof of a “realistic probability” that the statute of conviction would be applied to non-turpitudinous conduct—is also wrong-headed. The concept of “realistic probability” originated from Duenas-Alvarez. In Duenas-Alvarez, the hypothetical conduct asserted by the alien was not clearly a violation of California law. In fact, the parties vigorously disputed whether California courts would permit application of the statute to a defendant who had committed acts resulting in a crime, but where the commission of the crime itself was not intended. By contrast, in the instant case, no application of “legal imagination” to the Pennsylvania simple assault statute is necessary. The elements of 2701 are clear, and the ability of the government to prosecute a defendant under subpart 2701(b)(2)—even where the defendant is unaware of the victim’s age—is not disputed. This court therefore views the instant case as sufficiently different from that of Duenas-Alvarez to raise serious doubts as to its applicability.
Other considerations support our refusal to import a “realistic probability” test into the CIMT context. This court and others have developed a substantial body of case law deciding whether various state criminal statutes fall within the scope of the ‘crime involving moral turpitude’ offense. This jurisprudence has provided predictability, enabling aliens better to understand the immigration consequences of a particular conviction.
Also unanswered is whether the government or the alien bears the burden of demonstrating a prior application of the statute of conviction to non-turpitudinous conduct, and the applicability of unreported criminal cases. Although the INA
allocates the burden of establishing removability to the government, Duenas-Alvarez appears to shift this burden to the alien, indicating that he must “show that the statute was so applied in his own case” or point to “other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” These unresolved questions strengthen this court’s conclusion that the Supreme Court never
intended a sea-change in our case law regarding the methodology for determining whether an alien has been convicted of a CIMT.
Jean-Louis v. Att’y Gen., No. 07-3311 (3d Cir. Oct. 6, 2009).
Applying the established categorical approach, a conviction of simple assault in violation of 18 Pa. Cons. Stat. §§ 2701(b)(2), where the victim is under 12 years of age and the assailant is over 20 years of age, is not a crime involving moral turpitude for purposes of cancellation of removal.
Under the Immigration and Nationality Act, discretionary cancellation of removal is available to an alien who has resided continuously in the United States for seven years. An alien’s period of continuous residency terminates, however, if he commits an offense referred to in 8 U.S.C. § 1182(a)(2) that renders the alien inadmissible to the United States or removable from the United States under 8 U.S.C. § 1227(a)(2). Crimes involving moral turpitude are among the offenses listed in 8 U.S.C. § 1182(a)(2)(A)(i)(I).
The petitioner’s constitutional claim that his rights under INA § 239(a)(1)(C) & (D) and the Due Process Clause of the U.S. Constitution were violated fails at the outset, because an alien seeking discretionary relief from removal has no cognizable liberty or property interest. Moreover, any such failure was harmless, as the petitioner was adequately apprised of the issue, having prepared a brief on the topic of CIMT in anticipation of the objection.
Crimes involving moral turpitude have been held to require conduct that is inherently base, vile, or depraved. In determining whether a state law conviction constitutes a CIMT, the agency and this court, have historically applied a “categorical” approach, focusing on the underlying criminal statute rather than the alien’s specific act. This court thus looks to the elements of the statutory state offense, not to the specific facts, reading the applicable statute to ascertain the least culpable conduct necessary to sustain conviction under the statute.
Where a statute of conviction contains disjunctive elements, some of which are sufficient for conviction of the federal offense and others of which are not, this court has departed from a strict categorical approach. In such a case, this court has conducted a limited factual inquiry, examining the record of conviction for the narrow purpose of determining the specific subpart under which the defendant was convicted. This court has applied this “modified” categorical approach, even when clear sectional divisions do not delineate the statutory variations in order to determine the least culpable conduct sufficient for conviction, and, where a CIMT is asserted, measure that conduct for depravity.
In Shepard v. U.S., 544 U.S. 13, 26 (2005), the Supreme Court opined that the record of conviction includes the charging document, the plea agreement or transcript of the plea colloquy in which the defendant confirmed the factual basis for the plea, or a comparable judicial record of information.
Although we defer to the agency’s determination of whether an offense constitutes a CIMT, we accord no deference to its construction of a state criminal statute, as to which it has no particular expertise.
The determination of the scienter or level of culpability under 18 Pa. Cons. Stat. §§ 2701(b)(2) is important for the BIA itself has drawn a distinction for purposes of deciding whether an offense is a CIMT based on this very aspect of culpability. This court thus disagrees with the IJ’s reasoning that the age of the victim should be considered an aggravating factor.
This court finds that no culpability requirement attaches, explicitly or implicitly, to 18 Pa. Cons. Stat. §§ 2701(b)(2). Unlike subpart 2701(a)(1), which expressly requires that the defendant intentionally, knowingly, or recklessly inflict bodily injury,subpart 2701(b)(2) does not specify the minimum culpability required to trigger enhanced penalties. Nor is such a requirement implicit in the statute. The determination that subpart 2701(b)(2) sets forth a grading factor and not an element of the offense is significant. As a “grading” factor, subpart 2701(b)(2) does not trigger the statutory “gap-filling” provisions, which provide a mental state requirement that would be otherwise missing from “elements” of an offense.
In State v. McCabe, 765 A.2d 176, 180-81 (N.H. 2001), the Court considered what mental state requirement, if any, attached to conduct–“use of a deadly weapon”–that appeared in the penalty section of the offense of “criminal threatening.” The statute did not specify a mental state requirement. The Court concluded that the New Hampshire gap-filling provision, applicable solely to material elements of an offense, did not govern, because the only statutory reference to the use of a deadly weapon is contained in the penalty section of the statute, and the gap-filling provision applies solely to elements of an offense, not to grading factors.
Thus, this court concludes that the Pennsylvania assault statute as written permits a conviction under subpart 2701(b)(2) where the defendant did not know that the victim was under 12 years old.
In Partyka v. Att’y Gen., 417 F.3d 408, 413 (3d Cir. 2005), this court had to determine the minimum culpability required for conviction of the offense of “aggravated assault,” defined under New Jersey law, N.J. Stat. Ann. § 2C:12-1b(5)(a) (West 1995 & Supp. 2004), as the commission of simple assault against “any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.” Finding that commission of an assault against a law enforcement officer was a material element of the offense of aggravated assault, this court cited U.S. v. Rebelo, 358 F.Supp.2d 400, 418-19 (D.N.J. 2005), which applied the New Jersey gap-filling provision, and held that the offender had to have known that the victim was a police officer. Crucial to this court’s analysis—and to the analysis in Rebelo upon which this court relied—was the fact that the relevant conduct appeared in the definition of the offense of aggravated assault and thus was an element thereof. Because the offender had to know that the victim was an officer, the offense reflected the requisite degree of depravity and thus constituted a CIMT.
In the instant case, by contrast, the age of the perpetrator and victim are specified not in the definition of the offense but rather under the separate statutory heading, “grading.” Where the conduct is included under a statutory section entitled, “grading,” rather than under the “definition” of the offense, the conduct is per se not an “element” of the offense. Accordingly, the Pennsylvania gap-filling provisions—that would ordinarily mandate a specific mental state with respect to the victim’s age—do not apply to 18 Pa. Cons. Stat. §§ 2701(b)(2), and there is no culpability requirement as to that subpart.
Based upon the foregoing analysis, this court concludes that the least culpable conduct necessary for conviction under 18 Pa. Cons. Stat. §§ 2701(b)(2) would be a reckless assault by a person over 20 years of age, where the victim, unbeknownst to the defendant, is under 12 years of age.
The BIA has observed that simple assaults have generally been held not to involve moral turpitude. It has repeatedly opined that the hallmark of a CIMT, indeed, is an act accompanied by a vicious motive or a corrupt mind. In Michel v. INS, 206 F.3d 253 (2d Cir. 2000) the Court of Appeals for the Second Circuit thus identified a “corrupt scienter” as the touchstone of moral turpitude. Such depravity, however, is absent when a defendant could be convicted for unwittingly injuring a child—an act that, in our view, reflects a degree of malice no greater than that exhibited by an assault recklessly committed against an adult.
This court normally defers to the agency as to what conduct constitutes a CIMT. This court’s view that reckless assault of a minor, without more, does not constitute a CIMT is bolstered by a recent decision of the Attorney General, Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G. 2008).There, the Attorney General considered whether a statute criminalizing intentional sexual acts directed at a child constituted a CIMT. The statute did not include a mistake-of-age defense. Hence, a defendant who did not know, and had no reason to believe, that the complainant was a minor could face conviction. The Attorney General concluded, therefore, that the statute lacked the “hallmark of moral turpitude”—a “reprehensible act committed with an appreciable level of consciousness or deliberation.” Significantly, the Attorney General stated, “[W]hether the perpetrator knew or should have known the victim’s age is a critical factor in determining whether his or her crime involved moral turpitude for immigration purposes. A finding of moral turpitude under the Act requires that a perpetrator have committed the reprehensible act with some form of scienter.” Id. Thus, in Silva-Trevino, the Attorney General treated the perpetrator’s knowledge regarding the victim’s age as a critical consideration informing the depravity of the crime.
This court’s conclusion that 18 Pa. Cons. Stat. §§ 2701(b)(2) has no mental state requirement, coupled with the Attorney General’s stated view in Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687, 706-708 (A.G. 2008) that a defendant’s knowledge regarding the age of his victim may properly bear on the depravity of his conduct, leads inexorably to the conclusion that the Pennsylvania crime of simple assault at 18 Pa. Cons. Stat. §§ 2701 was not a CIMT.
While this court would normally remand to the agency for a decision of a matter that
statutes place primarily in agency hands—namely, the determination of whether a criminal violation constitutes a CIMT—the agency has spoken clearly that scienter as to age is critical to the CIMT inquiry, and that the absence of a scienter requirement is conclusive.
Under the modified categorical approach, the inquiry concludes when this court determines whether the least culpable conduct sufficient to sustain conviction under the statute “fits” within the requirements of a CIMT. However, in the recent opinion of Matter of Cristoval Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) the Attorney General suggested that more is required. However, this court concludes that deference is not owed to Silva-Trevino’s novel approach and thus this court will continue to apply the established modified categorical approach methodology.
The Attorney General’s novel methodology departs from this court’s precedents in two significant respects. First, Silva-Trevino alters the focus of the categorical analysis. Under the categorical approach, consistent with Supreme Court case law, this court looks to the elements of the statutory offense to ascertain the least culpable conduct hypothetically necessary to sustain a conviction under the statute. Under this court’s precedents, the possibility of conviction for non-turpitudinous conduct, however remote, is sufficient to avoid removal; proof of actual application of the statute of conviction to the conduct asserted is unnecessary. As a general rule, a criminal statute defines a crime involving ‘moral turpitude only if all of the conduct it prohibits is turpitudinous. Silva-Trevino eschews our approach of analyzing the least culpable conduct hypothetically sufficient to sustain conviction, in favor of a “realistic probability” test. Under this approach, in evaluating whether an alien’s prior offense is categorically one that involved moral turpitude, immigration judges should determine whether there is a ‘realistic probability, not a theoretical possibility,’ that a State or Federal criminal statute would be applied to reach conduct that does not involve moral turpitude. To demonstrate a realistic probability” of conviction, the alien must identify an actual conviction for comparable conduct.
The “realistic probability” approach focuses the adjudicator on a criminal statute’s actual scope and application and tailors the categorical moral turpitude inquiry by asking whether, at the time of an alien’s removal proceeding, any actual (as opposed to hypothetical) case exists in which the relevant criminal statute was applied to conduct that did not involve moral turpitude. If the statute has not been so applied in any case (including the alien’s own case), the adjudicator can reasonably conclude that all convictions under the statute may categorically be treated as ones involving moral turpitude. In such circumstances, the history of adjudication generally establishes no realistic probability that the statute, whatever its language may hypothetically allow, would actually be applied to acts that do not involve moral turpitude.
Second, Silva-Trevino renders the strict “categorical” approach not “categorical.” Prior to Silva-Trevino, this court departed from a strict categorical analysis only where the statute of conviction featured disjunctive variations, some of which were sufficient for conviction of the federal offense and others of which were not. This court departs farther from the formal categorical approach only where the language of a particular subsection of a statute invites inquiry into the underlying facts of the case.” In such a case, this court modified the approach, but the inquiry remained a limited one, focused on the crime of conviction: this court reviewed only the record of the conviction to ascertain the particular variation of the statute under which the defendant was convicted. Accordingly, the focus under the categorical approach has always been the conviction, aimed at determining exactly what the defendant was convicted of.
Silva-Trevino, by contrast, directs adjudicators to depart from a categorical approach, and to conduct an “individualized moral turpitude inquiry,” in every instance in which a “categorical analysis is not conclusive” as to whether the alien was convicted of a CIMT. The aim of this “individualized” inquiry is to ascertain the alien’s particular acts—to determine “whether the facts of the alien’s prior conviction in fact involved moral turpitude”—not merely to determine the elements of the statutory offense of which the alien was convicted.
Rather than limiting the CIMT inquiry to an examination of the formal record of conviction, which could include the charging document, the terms of the plea agreement or transcript of the colloquy between judge and defendant in which the factual basis for the plea is confirmed by the defendant, or some comparable judicial record of this information, Silva-Trevino abandons these restrictions. The Attorney General concluded that the evidentiary limitations of Taylor and Shepard do not apply for purposes of making moral turpitude determinations. Hence, an adjudicator may, in his or her discretion, consider not only evidence from the prior criminal proceedings but also “any additional evidence or factfinding the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.” Silva-Trevino sets no limitations on the kinds of evidence adjudicators may consider.
As a general rule, an agency’s construction of an ambiguous statute under its purview and in which it has special expertise is entitled to deference. However, where Congress has spoken clearly on the precise issue, no deference is owed to the agency’s interpretation of a statute. This court concludes that a court of appeals is not bound by the Attorney General’s view because it is bottomed on an impermissible reading of the statute, which, this court believes, speaks with the requisite clarity. The ambiguity that the Attorney General perceived in the INA is an ambiguity of his own making, not grounded in the text of the statute, and certainly not grounded in the BIA’s own rulings or the jurisprudence of courts of appeals going back for over a century. The specific ambiguity is as to the use of the words “convicted” and “committed.” The inclusion of “committed,” the Attorney General urged, permits inquiry into any and all acts—whether or not admitted by the
alien, and whether or not established by the record of conviction—to determine whether the petitioner was convicted of a CIMT. To say that this reading has been rejected is an understatement: the BIA, prior attorneys general, and numerous courts of appeals have repeatedly held that the term “convicted” forecloses individualized inquiry in an alien’s specific conduct and does not permit examination of extrarecord evidence. It could not be clearer from the text of the statute––which defines “conviction” as a “formal judgment of guilt,” and which explicitly limits the inquiry to the record of conviction or comparable judicial record evidence—that the CIMT determination focuses on the crime of which the alien was convicted—not the specific acts that the alien may have committed. The statute at 8 U.S.C. § 1101(a)(48)(A) presents no ambiguity.
Congress has prescribed a single definition of “convicted,” applicable to all removable offenses.
This court also takes issue with the Attorney General’s view that the phrase “crime involving moral turpitude” invites inquiry into an alien’s specific acts. The Attorney General’s argument is premised on a fundamental misreading of the relevant language.
The Attorney General viewed “crime” and “involving moral turpitude” as distinct grammatical units and, accordingly, reasons that the clause “involving moral turpitude” modifies “crime.” He thus concluded that Congress intended to authorize inquiry into whether an alien committed the offense in a manner reflecting depravity—that is whether the alien’s particular acts involved moral turpitude. The Attorney General’s view, however, overlooked a crucial fact: crime involving moral turpitude is a term of art, predating even the immigration statute itself. As such, its division into a noun and subordinate clause, as the Attorney General sought to do, distorts its intended meaning. It refers to a specific class of offenses, not to all conduct that happens to “involve” moral depravity, because of an alien’s specific acts in a particular case. Because the Attorney General’s position is premised on a clearly erroneous interpretation of “crime involving moral turpitude,” no deference is owed to his view.
Moreover, although the Attorney General observes–correctly–that “moral turpitude” is rarely an element of the underlying crime triggering removal, it is the offense that must be scrutinized for the requisite degree of depravity. Because the INA requires the conviction of a crime—not the commission of an act—involving moral turpitude, the central inquiry is whether moral depravity inheres in the crime or its elements–not the alien’s underlying conduct. In this way, the concept of a crime involving moral turpitude does not lend itself
to an examination of acts, rather than elements of the crime, any more than does the concept of “crime of violence” under section 101(a)(43)(F) of the INA. Violence, like moral turpitude, is not an element of the underlying offense; rather, we must look at the elements of the crime and measure them against the requirement of “violence.” The use of the term “involves” in “crime involving moral turpitude” is no more expansive than the word “of” in “crime of violence.”
Nor does this court believe that, as a practical matter, determination of whether a conviction “fits” the requirements of a CIMT requires examination of an alien’s underlying conduct.
The Seventh Circuit’s reasoning for abandoning the categorical approach—(1) the rationale for application of the categorical approach in criminal proceedings is inapplicable in the immigration context; (2) scrutiny of an alien’s specific acts is necessary to determine whether a prior conviction fits the criteria of a CIMT; and (3) a recent decision of the BIA permits examination of extra-record evidence in conducting the CIMT inquiry—cannot withstand scrutiny.
First, the Seventh Circuit’s reasons that the twin rationales for the categorical approach articulated in Taylor—simplicity of application and conservation of judicial resources—do not “come into play” in the immigration context is without merits. Administrative efficiency and ease of application are equally, if not more, important in the immigration context than in criminal proceedings.
The Ninth Circuit recently stated that if a court of appeals was to allow evidence that is not part of the record of conviction as proof of whether an alien falls within the reach of an INA removal provision, it essentially would be inviting the parties to present any and all evidence bearing on an alien’s conduct leading to the conviction. Such an endeavor is inconsistent with the streamlined adjudication that a deportation hearing is intended to provide.
Even if this court was inclined to find, as did the Seventh Circuit, that an individualized inquiry would enable more precise determinations regarding removal, and that this benefit outweighed the administrative burden created, this court believes its discretion to adopt such an approach to be foreclosed by the immigration statute itself, which predicates removal on convicted conduct, and which, this court concludes, expressly limits its inquiry to the official record of judgment and conviction, or other comparable judicial record evidence.
Lastly, the Seventh Circuit Court of Appeals erroneously reasoned that a recent opinion of the BIA, Matter of Babaisakov, warrants abandoning its precedents applying the categorical approach to CIMT cases. Babaisakov, however, does not support the far-reaching inquiry that the Seventh Circuit adopted. There, the BIA examined evidence outside the record of conviction for the narrow purpose of determining whether the monetary threshold for removal under section 101(a)(43)(M) was met. Section 101(a)(43)(M) authorizes removal of an alien who is convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
In approving resort to reliable evidence outside the record of conviction to determine the loss amount, the BIA stressed that a categorical approach would be unworkable, as there is no federal or state fraud statute that contains an element requiring loss to the victims exceeding $10,000. This court reached a similar decision in Nijhawan v. Att’y Gen., 523 F.3d 387, 391-92 (3d Cir. 2008). This court reasoned, as the BIA did in Matter of Babaisakov, that a contrary approach, requiring a loss amount to have been ascertained by the jury in the prior criminal proceeding, would essentially gut this basis for removal and impose a totally impractical standard. The practical impediments to application of the categorical approach identified in Nijhawan and Babaisakov, however, are not present in the CIMT context. The BIA and courts of appeals have determined whether moral turpitude inheres in the convicted conduct using a categorical approach for over a century. Hence, Nijhawan and Babaisakov do not support abandoning our established methodology. Because this court concludes that the Seventh Circuit misunderstood the import of Babaisakov, violates clear statutory language requiring proof of actual conviction, and ignores the BIA’s pronouncement that a fact-intensive inquiry would be unduly burdensome, this court does not feel compelled to follow it.
The other aspect of Silva-Trevino—requiring proof of a “realistic probability” that the statute of conviction would be applied to non-turpitudinous conduct—is also wrong-headed. The concept of “realistic probability” originated from Duenas-Alvarez. In Duenas-Alvarez, the hypothetical conduct asserted by the alien was not clearly a violation of California law. In fact, the parties vigorously disputed whether California courts would permit application of the statute to a defendant who had committed acts resulting in a crime, but where the commission of the crime itself was not intended. By contrast, in the instant case, no application of “legal imagination” to the Pennsylvania simple assault statute is necessary. The elements of 2701 are clear, and the ability of the government to prosecute a defendant under subpart 2701(b)(2)—even where the defendant is unaware of the victim’s age—is not disputed. This court therefore views the instant case as sufficiently different from that of Duenas-Alvarez to raise serious doubts as to its applicability.
Other considerations support our refusal to import a “realistic probability” test into the CIMT context. This court and others have developed a substantial body of case law deciding whether various state criminal statutes fall within the scope of the ‘crime involving moral turpitude’ offense. This jurisprudence has provided predictability, enabling aliens better to understand the immigration consequences of a particular conviction.
Also unanswered is whether the government or the alien bears the burden of demonstrating a prior application of the statute of conviction to non-turpitudinous conduct, and the applicability of unreported criminal cases. Although the INA
allocates the burden of establishing removability to the government, Duenas-Alvarez appears to shift this burden to the alien, indicating that he must “show that the statute was so applied in his own case” or point to “other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” These unresolved questions strengthen this court’s conclusion that the Supreme Court never
intended a sea-change in our case law regarding the methodology for determining whether an alien has been convicted of a CIMT.
Monday, October 5, 2009
Durable Manufacturing Co. v. DOL, No. 08-4122 (7th Cir. Aug. 18, 2009).
Durable Manufacturing Co. v. DOL, No. 08-4122 (7th Cir. Aug. 18, 2009).
A court of appeals review de novo the district court’s disposition of cross-motions for summary judgment, while construing the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
The Supreme Court instructs that although agency determinations within the scope of delegated authority are entitled to deference, it is fundamental that an agency may not bootstrap itself into an area in which it has no jurisdiction. Accordingly, a court of appeals reviews de novo an agency’s determination of the scope of its own jurisdiction. Therefore, a court of appeals examines the text and purpose of a statute to determine whether a regulation falls within the scope of the authority the statute delegates.
Under 8 USC § 1182(a)(5)(A)(i), the Secretary of Labor must make two substantive determinations before issuing a labor certification: 1) there is an insufficient number of able, willing, qualified, and available workers (hereinafter “sufficient workers determination”); and 2) employment of the alien will not adversely affect the wages and working conditions of similarly situated workers. Of key importance is when making the sufficient workers determination, the Secretary must certify that the supply of such workers is insufficient at a specific point in time: “at the time of application for a visa and admission to the United States.” By declaring approved labor certifications indefinitely valid without any linkage to the filing of a visa petition, the earlier version of 20 CFR § 656.30(a) did not apply the statutory provision that the sufficient workers determination be made “at the time of application for a visa.” DOL’s imposition of a time limitation on the validity of a labor certification ensures that the sufficient workers determination reflects the state of the labor market at the time the anticipated employee’s application for a visa and admission is made. Assuming that DOL possessed statutory authority to promulgate regulations pertaining to labor certifications, then the amended 8 CFR § 656.30(b) is within the scope of DOL’s authority because it complies with the explicit language from 8 USC § 1182(a)(5)(A)(i)(I). In addition, the amendment is consistent with the amendment is consistent with one of the overarching purposes behind labor certifications: protection of the domestic labor force from job competition. Thus, the amended § 656.30(b) ensures that the snapshots of the labor market taken when labor certifications are approved are not stale appraisals of the labor market when the visa petitions are filed. This protects Americans who are currently able, willing, qualified, and available to fill certain skilled and unskilled positions from having to compete with aliens who were issued labor certifications (and are now applying for visas) at a time when the domestic work force was insufficient to fill such positions. Thus, the new regulation at 20 CFR § 656.30(b) advances, to some degree, the congressional purpose of protecting American workers.
In sum, the promulgation of 20 CFR § 656.30(b) was within DOL’s statutory authority because it comports with the textual mandate of 8 USC § 1182(a)(5)(A)(i)(I) for DOL to ascertain the sufficiency of workers at the time an application for a visa is made, and it furthers one of the congressional purposes behind the labor certification requirement.
A court of appeals reviews de novo the question of whether a law operates retroactively.
The Supreme Court at Landgraf v. USI Film Products, 511 U.S. 244 (1994), set forth the analytical framework for determining whether a statute is retroactive. First, a court of appeals should ask whether Congress has spoken clearly regarding whether the law should apply retroactively. When an administrative rule is at issue, the inquiry is two-fold: whether Congress has expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the agency clearly intended for the rule to have retroactive effect.
Unaware of any express statutory provision indicating congressional approval of retroactive rulemaking by DOL in regard to labor certifications, this court of appeals must proceed to the second Landgraf step, which is to ask whether the regulation has retroactive effect. A law is not retroactive merely because it is
applied to conduct before the law was passed or upsets expectations based in prior law. Rather, a law has retroactive effect if it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. Instead of being a simple or mechanical task, the determination of whether a law operates retroactively requires a commonsense, functional judgment about ‘whether the new provision attaches new legal consequences to events completed before its enactment. That judgment is informed by considerations of notice, reliance, and settled expectations.
The filing of an application for a labor certification is simply a preliminary step for obtaining a labor certification. Because it is not a final determination or event, no new legal consequences would affect the application as a result of the amended regulation at 20 CFR § 656.30(b).
Any right that might have been created with respect to the time period of validity of the labor certifications would have come from the earlier version of the regulation at 20 CFR § 656.30(a) promulgated by DOL. That version simply stated that approved labor certifications were valid “indefinitely.” The plaintiffs’ characterization of their labor certifications as permanently valid is unfounded. In common usage, the term “indefinite” means “having no exact limits; indeterminate in extent or amount; not clearly fixed.” Thus, labor certifications approved under the old regulation were not valid permanently, but only so long as no definite period of validity was fixed by DOL. By definition, then, any “right” that the plaintiffs may have obtained to file their approved labor certifications in support of visa petitions at any time they chose was coextensive with the duration of the “indefinite” regulation.
When DOL amended the regulation at 20 CFR § 656.30(b) essentially to establish a 180-day time limit for previously approved labor certifications, the plaintiffs’ right to the certifications’ indefinite validity ended. Therefore, upon the approval of the updated § 656.30(b), the plaintiffs did not possess any vested right that the amended regulation could impair. Similarly, any expectations that the plaintiffs had regarding the continued validity of their labor certifications were not settled due to the unfixed character of the old regulation. Accordingly, it is held that application of the new regulation at 20 CFR § 656.30(b) has no retroactive effect. Therefore, the regulation at 20 CFR § 656.30(b) falls within the scope of DOL’s statutory authority to promulgate regulations pertaining to the labor certification process. It is further held that § 656.30(b) does not operate retroactively.
A court of appeals review de novo the district court’s disposition of cross-motions for summary judgment, while construing the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
The Supreme Court instructs that although agency determinations within the scope of delegated authority are entitled to deference, it is fundamental that an agency may not bootstrap itself into an area in which it has no jurisdiction. Accordingly, a court of appeals reviews de novo an agency’s determination of the scope of its own jurisdiction. Therefore, a court of appeals examines the text and purpose of a statute to determine whether a regulation falls within the scope of the authority the statute delegates.
Under 8 USC § 1182(a)(5)(A)(i), the Secretary of Labor must make two substantive determinations before issuing a labor certification: 1) there is an insufficient number of able, willing, qualified, and available workers (hereinafter “sufficient workers determination”); and 2) employment of the alien will not adversely affect the wages and working conditions of similarly situated workers. Of key importance is when making the sufficient workers determination, the Secretary must certify that the supply of such workers is insufficient at a specific point in time: “at the time of application for a visa and admission to the United States.” By declaring approved labor certifications indefinitely valid without any linkage to the filing of a visa petition, the earlier version of 20 CFR § 656.30(a) did not apply the statutory provision that the sufficient workers determination be made “at the time of application for a visa.” DOL’s imposition of a time limitation on the validity of a labor certification ensures that the sufficient workers determination reflects the state of the labor market at the time the anticipated employee’s application for a visa and admission is made. Assuming that DOL possessed statutory authority to promulgate regulations pertaining to labor certifications, then the amended 8 CFR § 656.30(b) is within the scope of DOL’s authority because it complies with the explicit language from 8 USC § 1182(a)(5)(A)(i)(I). In addition, the amendment is consistent with the amendment is consistent with one of the overarching purposes behind labor certifications: protection of the domestic labor force from job competition. Thus, the amended § 656.30(b) ensures that the snapshots of the labor market taken when labor certifications are approved are not stale appraisals of the labor market when the visa petitions are filed. This protects Americans who are currently able, willing, qualified, and available to fill certain skilled and unskilled positions from having to compete with aliens who were issued labor certifications (and are now applying for visas) at a time when the domestic work force was insufficient to fill such positions. Thus, the new regulation at 20 CFR § 656.30(b) advances, to some degree, the congressional purpose of protecting American workers.
In sum, the promulgation of 20 CFR § 656.30(b) was within DOL’s statutory authority because it comports with the textual mandate of 8 USC § 1182(a)(5)(A)(i)(I) for DOL to ascertain the sufficiency of workers at the time an application for a visa is made, and it furthers one of the congressional purposes behind the labor certification requirement.
A court of appeals reviews de novo the question of whether a law operates retroactively.
The Supreme Court at Landgraf v. USI Film Products, 511 U.S. 244 (1994), set forth the analytical framework for determining whether a statute is retroactive. First, a court of appeals should ask whether Congress has spoken clearly regarding whether the law should apply retroactively. When an administrative rule is at issue, the inquiry is two-fold: whether Congress has expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the agency clearly intended for the rule to have retroactive effect.
Unaware of any express statutory provision indicating congressional approval of retroactive rulemaking by DOL in regard to labor certifications, this court of appeals must proceed to the second Landgraf step, which is to ask whether the regulation has retroactive effect. A law is not retroactive merely because it is
applied to conduct before the law was passed or upsets expectations based in prior law. Rather, a law has retroactive effect if it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. Instead of being a simple or mechanical task, the determination of whether a law operates retroactively requires a commonsense, functional judgment about ‘whether the new provision attaches new legal consequences to events completed before its enactment. That judgment is informed by considerations of notice, reliance, and settled expectations.
The filing of an application for a labor certification is simply a preliminary step for obtaining a labor certification. Because it is not a final determination or event, no new legal consequences would affect the application as a result of the amended regulation at 20 CFR § 656.30(b).
Any right that might have been created with respect to the time period of validity of the labor certifications would have come from the earlier version of the regulation at 20 CFR § 656.30(a) promulgated by DOL. That version simply stated that approved labor certifications were valid “indefinitely.” The plaintiffs’ characterization of their labor certifications as permanently valid is unfounded. In common usage, the term “indefinite” means “having no exact limits; indeterminate in extent or amount; not clearly fixed.” Thus, labor certifications approved under the old regulation were not valid permanently, but only so long as no definite period of validity was fixed by DOL. By definition, then, any “right” that the plaintiffs may have obtained to file their approved labor certifications in support of visa petitions at any time they chose was coextensive with the duration of the “indefinite” regulation.
When DOL amended the regulation at 20 CFR § 656.30(b) essentially to establish a 180-day time limit for previously approved labor certifications, the plaintiffs’ right to the certifications’ indefinite validity ended. Therefore, upon the approval of the updated § 656.30(b), the plaintiffs did not possess any vested right that the amended regulation could impair. Similarly, any expectations that the plaintiffs had regarding the continued validity of their labor certifications were not settled due to the unfixed character of the old regulation. Accordingly, it is held that application of the new regulation at 20 CFR § 656.30(b) has no retroactive effect. Therefore, the regulation at 20 CFR § 656.30(b) falls within the scope of DOL’s statutory authority to promulgate regulations pertaining to the labor certification process. It is further held that § 656.30(b) does not operate retroactively.
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