Weekly Blog for March 22, 2019 Part II by Merle Kahn, Esq.
This week the Supreme Court issued its long-awaited decision in Nielsen v. Preap regarding mandatory detention of noncitizens who have criminal convictions. In a five to four decision the Supreme Court held that noncitizens who have criminal convictions are subject to mandatory detention regardless of when they are placed in ICE custody. Because Supreme Court decisions are so important, I have blogged about it separately in Part I.
In Ninth Circuit news, the Ninth Circuit withdrew a decision holding that a conviction for Cal. Penal Code § 273A(a) (child abuse) was categorically a crime of child abuse and will be hearing the case en banc. I am re-upping that part of my blog from July 2018 so you can understand what is going on. The Ninth Circuit also held that death threats in and of themselves are insufficient to establish a well-founded fear of persecution. Sigh.
I would like to thank Karl Krooth for pointing out some errors in my last blog about mandatory detention for arriving aliens. In my blog, I accidentally referred to the regulations in the halcyon days of 2004; instead of the reality of 2017. I have corrected and updated my last post about the Suspension Clause. It might take a village to raise a child; but can also take a village to write a blog; so, thank you Karl. Also, shout out to Lori Rosenberg for making a Suspension Clause argument in the 1990’s well before Thurgaissiam and for writing song lyrics about it! She called it “I’ll Get Review” and set it to the tune of “Mr. Blues.” I just have to say; immigration lawyers are the best.
NINTH CIRCUIT
Death Threats are not Enough to Create a Well-Founded Fear of Persecution for Asylum
The Ninth Circuit held that death threats in and of themselves are not enough to establish a well-founded fear of persecution for asylum seekers. This decision seems to ignore the ameliorative purpose of the asylum statute as defined by the Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). The Supreme Court held that for a person to establish a well-founded fear of persecution, the person need only establish a one in ten chance that they would be persecuted in their home country on one of the protected grounds.
“There is simply no room in the United Nations’ definition for concluding that, because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, he or she has no “well founded fear” of the event’s happening. See supra at 480 U. S. 431. As we pointed out in Stevic, a moderate interpretation of the “well founded fear” standard would indicate “that, so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.””
Cardoza-Fonseca, 480 U.S. at 440. Sadly, this recent Ninth Circuit decision seems to ignore Cardoza-Fonseca. This case holds that death threats without more are insufficient for establishing an asylum claim.
Facts
Jose Jesus Duran-Rodriguez is a native and citizen of Mexico. In September 2012 he joined the four-member police force in the town of Villa Hidalgo in Sonora, Mexico. It is a city of about 3500 people. In December 2013, Mr. Duran-Rodriguez received two death threats. The first time he received a telephone call from a person who called himself “Seventy.” Seventy was the leader of a group of hitmen known as the “zicarios” or “sicarios.” Mr. Duran-Rodriguez indicated that Seventy had a reputation as a dangerous person who worked for the Sinaloa drug cartel led by “El Chapo.” Seventy wanted Mr. Duran-Rodriguez to help him get drugs to the border. Seventy told Mr. Duran-Rodriguez that he had three days to think about it and then threatened to kill him if he did not cooperate.
Then, Seventy confronted Mr. Duran-Rodriguez in person and brought with him a group of seven armed sicarios. Seventy told Mr. Duran-Rodriguez that the wanted him to work as a lookout and to clear a roadway to the border. He offered him $7,000 to do so. Seventy told Mr. Duran-Rodriguez that he had three days to reconsider the offer and that if he refused to help, he either had to leave the city or they would kill him.
Mr. Duran-Rodriguez spoke to his commander who told him to get the hell out of Dodge (or in this case Villa Hidalgo) (I strongly recommend clicking on this link). Mr. Duran-Rodriguez told the mayor of Villa Hidalgo about the threats, but Mr. Duran-Rodriguez did not report the threats to anyone higher. He testified that he was afraid that they might be working with the Sinaloa drug cartel. (It all seems very reasonable to me). On December 15, 2013, Mr. Duran-Rodriguez followed the advice of his commander and got the hell out of Villa Hidalgo. He went to his aunt’s home in Hermosillo and stayed there for about two weeks before coming to the United States. No one threatened him during the two-week period in Hermosillo
IJ’s and BIA’s Decisions
The Immigration Judge (IJ) found that the two threats did not rise to the level of past persecution. As for establishing a well-founded fear of future persecution, the IJ found that Mr. Duran-Rodriguez had not established that he had been singled out for future persecution or that there was a pattern and practice of persecution of similarly situated persons on account of a protected ground. The IJ found that Mr. Duran-Rodriguez could avoid persecution by relocating within Mexico and that it would be reasonable for him to do so. Finally, the IJ determined that Mr. Duran-Rodriguez failed to establish that it was more likely than not that he would be tortured if removed to Mexico. The Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision.
ASYLUM AND WITHHOLDING OF REMOVAL
Past Persecution
The Ninth Circuit’s decision starts off rather ominously for Mr. Duran-Rodriguez, “Persecution is “an extreme concept that does not include every sort of treatment our society regards as offensive.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) quoted in Duran-Rodriguez v. Barr, No. 16-72957 (9th Cir. March 20, 2019). Mr. Duran-Rodriguez contends that he suffered past persecution in the form of death threats on account of his membership in a particular social group (police officers in Mexico). But the two threats he received did not rise to the level of persecution.
When Death Threats Alone Constitute Persecution
Credible death threats alone constitute persecution “only when the threats are so menacing as to cause significant or actual suffering or harm.” Duran-Rodriguez, at slip op. at *8. The adjudicator must look at all of the surrounding circumstances to determine whether the threats are actually credible and rise to the level of persecution. “We have been most likely to find persecution where threats are repeated, specific and “combined with confrontation or other mistreatment.” Id. The Ninth Circuit found that the threats in this case were not enough. They only occurred over the course of two days and “Duran-Rodriguez did not personally know if they had ever carried out threats against other officers for failing to cooperate as requested.” Id.
The Ninth Circuit then goes back to the standard of review and notes that while it was possible for the IJ to conclude that the threats constituted persecution, the evidence does not compel the conclusion that Mr. Duran-Rodriguez suffered past persecution. Remember that when the Ninth Circuit reviews a denial of asylum, withholding of removal or protection under the Convention Against Torture (CAT) they review it for substantial evidence. They must uphold the agency’s decision unless the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1 (1992). It’s a high standard.
Future Persecution
The Ninth Circuit holds that absent evidence of past persecution, Mr. Duran-Rodriguez must establish a well-founded fear of future persecution by showing both a subjective fear of future persecution, as well as an objectively “reasonable possibility” of persecution upon return to the country in question. Interestingly, the Ninth Circuit never cites Cardoza-Fonseca and the 1 in 10 chance of persecution as the standard. Here’s the important language:
“However, an applicant “does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality …[and] under all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(ii). Duran-Rodriguez had the burden of proving that such relocation would not be possible or reasonable.”
Duran-Rodriguez, slip op. at *9. The Ninth Circuit then notes in a footnote that it need not address Mr. Duran-Rodriguez’s other arguments about a well-founded fear of persecution because the internal relocation issue itself is dispositive. Id., at *9 & n. 2. The Ninth Circuit cites to the BIA’s decision holding that there is no evidence or claim that the drugs have sought Mr. Duran-Rodriguez since he left Villa Hidalgo and there was no evidence that he could not safely relocate within Mexico “especially where he is no longer a police officer and could not now provide drug trafficker with the assistance they desire.” Duran-Rodriguez, slip op. at *10. Umm, I thought that one of the characteristics of a particular social group was that the parties share an “immutable characteristic.” An immutable characteristic is one that ““the members of the group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I.&N. Dec. 211, 233 (BIA 1985). Even Jeff Sessions quoted this definition with approval! Matter of A-B-, 27 I.&N. Dec. 316, 318 (A.G. 2018). But the Ninth Circuit does not address this issue. Instead, they deny Mr. Duran-Rodriguez’s claims for asylum and for withholding of removal.
The Ninth Circuit then quickly disposes of Mr. Duran-Rodriguez’s CAT claim finding that he had not been tortured in the past and has not shown that it is more likely than not that he will be subjected to torture by or with the acquiescence of a public official.
Concurrence
Then, as if that decision is not enough, Judge Milan Smith files a special concurrence to elaborate that for death threats to constitute persecution, the threats must be accompanied by some form of violence or harm to the applicant, a family member, or others closely associated with the applicant. Judge Smith then lists examples of where death threats accompanied by violence constitute persecution.
Duran-Rodriguez v. Barr, No. 16-72957 (9th Cir. March 20, 2019).
A Conviction for Child Abuse Under Cal. Penal Code § 273A(a) is a Crime of Child Abuse Under INA § 237(a)(2)(E) – But Maybe Not for Long – Blog Post from July 27, 2018
Here is the original blog from July 27, 2018, analyzing the Ninth Circuit’s decision on July 23, 2018 holding that a conviction for Cal. Penal Code § 273A(a) (child abuse) was categorically a crime of child abuse. On March 18, 2019, the Ninth Circuit withdrew this decision and designated the case to be reheard en banc. I don’t recommend that noncitizens plead to Cal. Penal Code § 273A(a) but it is good for our clients that the Ninth Circuit withdrew this decision.
The Ninth Circuit held that a conviction for child abuse under Cal. Penal Code § 273A(a) is categorically a crime of child abuse under INA § 237(a)(2)(E). And that even though the BIA had held that a conviction under Cal. Penal Code § 273A(a) was not a crime of child abuse when the noncitizen pleaded to the offense the Ninth Circuit found that the BIA’s subsequent decision, rendering 273A(a) a crime of child abuse a few years later, did not make the categorization impermissibly retroactive. There are serious flaws with the majority opinion and there is a split between the Circuits so, I don’t think this issue is going away any time soon.
Statutes
To understand this decision, let’s first start by looking at the statutes. INA § 237(a)(2)(E) provides: “Any alien who at any time after admission is convicted …of a crime of child abuse, child neglect, or child abandonment is deportable.” California Penal Code § 273A(a) provides:
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished….
Categorical Approach
The question is whether California Penal Code § 273A(a) is a categorical match to the federal generic definition of a crime of child abuse, child neglect, or child abandonment. But what exactly is a crime of child abuse, child neglect, and child abandonment? To be more precise, for immigration purposes, what is the federal generic definition of a crime of child abuse, neglect, or abandonment? How can a tribunal determine the federal generic definition where there is no federal offense of child abuse? Do you look to how the fifty states defined the concept in 1996 when Congress enacted IIRIRA? Do you look to Black’s Law Dictionary? The Model Penal Code? Or, is this concept so nebulous as to be unconstitutionally vague? Is the BIA’s interpretation of what constitutes a crime of child abuse, abandonment, or neglect reasonable? Should the Ninth Circuit defer to it under Chevron? Has the BIA’s definition of child abuse, abandonment, or neglect changed so significantly over the years that applying the most recent definition by the BIA to conduct that occurred before the opinion came down impermissibly retroactive? There are so many issues swirling around this 58-page treatise, that I read the entire decision four times before writing this blog. The decision reads like an argument between the majority and the dissent and a discussion between the Ninth Circuit and the BIA. More importantly, I think the Supreme Court will ultimately rule on it. But for our purposes as practitioners, we must make sure that criminal defense attorneys understand that a conviction for Cal. Penal Code § 273A(a) is categorically a crime of child abuse under INA § 237(a)(2)(E).
Facts
Marcelo Martinez-Cedillo is a native and citizen of Mexico who has been a lawful permanent resident of the United States since 2005, though he has been living in the United States for much longer. The dissent says that he has been living here legally for the past fifteen years. In 2008 he was convicted of felony child endangerment under Cal. Penal Code § 273A(a) and driving under the influence. It was his third arrest for driving under the influence and this time one of his children was in the car with him and the child was not wearing a seatbelt. (Hence the 273A(a)). [I would just like to point out, having grown up in the 1960’s (in the era of Mad Men), most children, at some point, were passengers in a car with drivers who were likely intoxicated, and no one wore seatbelts. Times and social mores have changed]. DHS placed him into removal proceedings and charged with removability under INA § 237(a)(2)(E). He argued that Cal. Penal Code § 273A(a) is not a crime of child abuse, neglect, or abandonment, that even if it is, the BIA’s interpretation should not be applied retroactively to him, and that the IJ improperly denied his motion for a continuance in an abuse of discretion. There is not much discussion about the denial of the motion for a continuance, so I am not going to discuss it.
History of Child Abuse Statutes
Here’s the history of the child abuse statute. In 1996, when Congress enacted IIRIRA they included a removable offense for noncitizens who have been convicted of a crime of child abuse, child abandonment, or child neglect. In 1999, the BIA in a decision about sexual abuse of a minor mentioned that the crime of child abuse encompasses actions that do not require physical contact. Matter of Rodriguez-Rodriguez, 22 I.&N. Dec. 991 (BIA 1999). Two of the Circuits accepted this dictum as the definition of a crime of child abuse. Then in 2006, the Ninth Circuit remanded a case to the BIA, to define the crime of child abuse. The Ninth held that the passing reference in Matter of Rodriguez-Rodriguez was insufficient. In 2008, the BIA responded and issued its first decision dedicated solely to what constitutes a crime of child abuse. Matter of Velazquez, 24 I.&N. Dec. 503 (BIA 2008). The BIA interpreted the crime of child abuse “broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. Velazquez, 24 I.&N. Dec. at 512. Here’s the language that I find really interesting, the definition includes “mental or emotional harm, including acts injurious to morals…” Id. Does that mean that a twenty-one-year-old who hands a seventeen-year-old a beer has committed an act of child abuse? What about a clerk who sells cigarettes to a minor? To put it mildly, I find the definition troubling. The Ninth Circuit also found the definition troubling and noted that the definition did not address whether the crime of child abuse required actual injury to a child. Martinez-Cedillo v. Sessions, No. 14-71742, slip op. at 11 (July 23, 2018).
In 2009, the Ninth Circuit reviewed child abuse again. The Ninth held that a conviction under Cal. Penal Code § 273A(b) was not a categorical match to a crime of child abuse as defined in INA § 237(a)(2)(E) because Section 273A(b) does not require a particular likelihood of harm to a child. The Ninth Circuit noted that Section 273A(b) differed from the felony provision of 273A(a) because it did not require that the perpetrator actually endanger the health or safety of the child. Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009). Remember, how I said earlier that this case seemed somewhat like an on-going discussion between the BIA and the Ninth? Well, the next year, the BIA “respectfully clarified” that a crime of child abuse was not limited to offenses requiring proof of injury to a child. Matter of Soram, 25 I.&N. Dec. 378 (BIA 2010). The BIA clarified that the phrase “child abuse, child neglect, or child abandonment” in Section 237(a)(2)(E) denotes a “unitary concept.” It expanded the definition to include civil concepts of child endangerment. But the BIA noted that while the crime of child abuse, neglect, or abandonment required only a risk of injury to a child, that risk had to be “sufficiently great.” Soram, 25 I.&N. Dec. at 382-83. The BIA held that each case had to be decided on a case by case basis to see if the risk of harm by the endangerment language was sufficient to bring the offense within the federal definition of a crime of child abuse.
Chevron Deference
With that background, the Ninth Circuit then determined whether it should apply Chevron deference to this issue. Remember, under Chevron, the courts of appeal have to first determine whether the statute at issue is ambiguous and then if it is, is the agency’s construction reasonable. [Since Gorsuch seems to think Chevron was wrongly decided, and Brett Kavanaugh also seems to think Chevron was wrongly decided, the Supreme Court may not keep this definition around for much longer]. Both the majority and the dissent agreed that the federal statute is ambiguous. However, the dissent (and a few other circuits) found that the BIA’s interpretation was not reasonable, so the agency’s decision was not entitled to deference. The big issue here, is whether the BIA’s definition of child abuse, child neglect, and child abandonment is a reasonable federal generic definition of the offense. Is a definition that does not require actual or intention injury to a child a reasonable federal definition of child abuse? The majority found that while the BIA’s definition does not require an actual or intentional injury to a child, under the unitary definition of child abuse, child neglect, or child abandonment, that “the term “child neglect” surely admits of such conduct.” Martinez-Cedillo, slip op. at 19. The Ninth Circuit noted that there is no requirement that the BIA interpret a generic offense in the INA to conform to how the majority of states interpreted that term when Congress enacted the law.
The Ninth Circuit held that the BIA’s interpretation of a crime of child abuse, neglect, or abandonment is a reasonable construction of ambiguous statutory language. Accordingly, the Ninth Circuit joined the Second Circuit in deferring to the BIA’s interpretation.
The Ninth Circuit then then determined whether Cal. Penal Code § 273A(a) is categorically a crime of child abuse, neglect, or abandonment as defined by the BIA. It found that it was because Cal. Penal Code § 273A(a) requires criminally negligent conduct under conditions likely to produce great bodily harm of death to a child. The Ninth differentiated it from Cal. Penal Code § 273A(b) which requires a lesser standard for conviction.
Finally, the Ninth Circuit held that the BIA’s interpretation of child abuse was not impermissibly retroactive. Even though the BIA did not issue its clarification of a crime of child abuse until 2010 in Matter of Soram and Mr. Martinez-Cedillo entered his plea in 2008, the Ninth Circuit found that the decision was not impermissibly retroactive. The Ninth held that the BIA’s decision in Soram was not an abrupt departure from a well-established practice but rather a clarification of a prior uncertainty.
Dissent and Vagueness
Now normally, I would not exhaustively blog about a dissent in a case, but in this case, I think the twenty-five-page dissent here is pretty important. First, the dissent argues that the section of INA § 273(a)(2)(E) related to child abuse, neglect, or abandonment is unconstitutionally vague. ““Vague laws invite arbitrary power,” Sessions v. Dimaya, 138 S. Ct. 1204, 1233 (2018) (Gorsuch, J., concurring), as the Board’s ever-changing definition of the “crime of child abuse, child neglect, or child abandonment” illustrates.” Martinez-Cedillo, slip op. at 35 (Wardlaw, J., dissenting). The dissent thoroughly dissects the statute and finds that it is unconstitutionally vague under Dimaya. The dissent then notes that the BIA in defining the criminal act of child abuse, sweeps into its definition statutes that are civil in nature and includes child endangerment. It’s important to note, that child endangerment is not part of the criminal definition of child abuse, neglect, or abandonment. The dissent notes, “[w]hile child endangerment statutes share some elements with child abuse, neglect, and abandonment statutes, the crime of child endangerment, unlike the crime of child abuse, neglect, or abandonment, is chiefly concerned with the level of risk to the child, and it is, therefore, a different crime altogether.” Martinez-Cedillo, slip op. at 42 (Wardlaw, J., dissenting). The dissent notes that this definition about how the court estimates a “degree of threat” to the child where the state statute does not specify the “degree of threat” requires the adjudicator to identify the level of risk of the “ordinary case” under the state statute of conviction. Remember, the Supreme Court found that it was the “ordinary case” analysis that rendered the statute in Dimaya unconstitutionally vague. The Supreme Court had left open the possibility that the statute was constitutional if the adjudicator used the categorical minimum conduct test as set forth in Taylor v. United States, 595 U.S. 575 (1990). I think the dissent is correct and the statute is unconstitutionally vague.
The BIA’s Interpretation of the Statute Was not Reasonable
The dissent then destroys the BIA’s decision in Matter of Soram. The dissent holds, “The Board inexplicably and unreasonably looked to the civil child abuse statutes in the thirty-eight states in force as of 2009, not the criminal laws in effect in 1996 when Congress enacted the statue. Martinez-Cedillo, slip op. at 49 (Wardlaw, J., dissenting). The dissent then notes that a fifty-state survey of contemporaneous state criminal laws is a methodological hallmark of the categorical approach, regularly employed to derive the generic definition of a federal crime. The dissent states, “[a]n Article III court may not be equipped to define, in the first instance, what the “crime of child abuse, child neglect, and child abandonment” should mean for fifty states, but it is well within our authority to require the Board to do it properly.” Martinez-Cedillo, slip op. at 54-55 (Wardlaw, J., dissenting). Damn! Finally, the dissent argues that even if Soram were due deference, the new definition of child abuse should not apply to Mr. Martinez-Cedillowho pleaded to 273A(a) two years before Soram came down.
So Cal. Penal Code § 273A(a) is categorically a crime of child abuse in the Ninth Circuit for right now. But the underlying federal statute (INA § 237(a)(2)(E)) might be unconstitutionally vague under Dimaya. And the BIA’s decisions in Rodriguez, Velazquez, and Soram might be unreasonable and not due any deference under Chevron. There is also a Circuit split on whether the BIA’s decisions are reasonable and are due any deference under Chevron. At a minimum, this case will likely be reheard en banc and because there is a strong split in the Circuits it will likely go up to the Supreme Court.
Martinez-Cedillo v. Sessions, 896 F.3d 579 (9th Cir. 2018) withdrawn and petition for rehearing en banc granted Martinez-Cedillo v. Barr, No. 14-71742 (9th Cir. March 18, 2019).