Weekly Blog for 3.9.19 Part II, by Merle Kahn, Esq.
Sentencing Enhancements are Per Se Part of the Sentence for a Particularly Serious Crime Determination
This week two cases came down from the Ninth Circuit and one was so amazing (people in expedited removal proceedings can invoke the Suspension Clause for a review of their case under habeas corpus) that it needed its own blog. It is posted as Part I for this week. Part II of this blog is a more ordinary immigration case but might be of more importance for most of our clients. This case holds that a noncitizen who has been convicted of an aggravated felony who is sentenced to a term of imprisonment of five years with a sentencing enhancement, has been convicted of a particularly serious crime and is statutorily ineligible for withholding of removal. Counting can be hard. For example, have you ever tried to write a haiku?
“Haikus are quite hard
You always have to count them
…Chunky applesauce?”
Benny Cramer, Haikus are Hard. We are not dealing with haikus here, just how to count five years and are sentencing enhancements part of the five years. No cases came down from the Board of Immigration Appeals or the Attorney General.
NINTH CIRCUIT
Sentencing Enhancements Count in Determining Whether a Noncitizen has been Convicted of a Particularly Serious Crime
A noncitizen who is applying for withholding of removal is statutorily ineligible for relief if they have been convicted of a particularly serious crime. The statute defines a per se particularly serious crime as an aggravated felony where the noncitizen has been sentenced to a term of imprisonment of five years. INA § 241(b)(3). Yet a particularly serious crime can be whatever crime the immigration court determines it is case-by-case. The statute states, “The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.” Id. The question here is “whether it is appropriate for the BIA [and the immigration courts] to consider sentencing enhancements when it determines that a petitioner was convicted of a per se particularly serious crime.” Mairena v. Barr, No. 15-72833 slip op. at *11 (9th Cir. March 7, 2019). The Ninth Circuit found that it is.
Facts
Danilo Mairena is a native and citizen of Nicaragua. He was convicted of corporal injury to upon the mother of his child with a prior conviction in violation of Cal. Penal Code § 273.5(e)(1) (the statute has been renumbered and is now Cal. Penal Code § 273.5(f)) and was sentenced to five years of imprisonment; four years for the offense, plus a one-year enhancement for suing a weapon during the commission of the offense. He was also sentenced to three years imprisonment for witness dissuasion (Cal. Penal Code § 136.1). DHS charged him with two aggravated felonies under INA § 237(a)(2)(A)(iii) for the § 273.5 and for the § 136.1. The BIA did not rely on the witness dissuasion conviction as an aggravated felony to find that Mr. Mairena was ineligible for withholding of removal. I know that a lot of immigration attorneys recommend Cal. Penal Code § 136.1 as an immigration safe plea, and I think it still is safe.
IJ’s and BIA’s Decisions
Mr. Mairena conceded that he had been convicted of an aggravated felony for the corporal injury conviction but, he applied for withholding of removal, protection under the Convention Against Torture (CAT), adjustment of status and a waiver of inadmissibility. I just want to say here, never concede that anything is an aggravated felony. There are always ways to pick at it and to differentiate the state crime from the federal generic crime. But Mr. Mairena conceded and requested relief. He argued that he feared that the Sandinistas would kill him because the Sandinistas had persecuted his family his family was currently fighting with Nicaraguan President Daniel Ortega to recover seized family property. The IJ denied all relief finding that Mr. Mairena was statutorily ineligible for withholding of removal because he had been sentenced to an aggregate term of imprisonment of five years including the enhancement. The IJ found that Mr. Mairena had failed to establish that it was more likely than not that he would be tortured if he were forced to return to Nicaragua. The BIA affirmed.
Ninth Circuit’s Decision
The Ninth Circuit noted that aggravated felonies with resulting sentences of five years are per se particularly serious crimes while aggravated felonies with sentences of fewer than five years are not per se particularly serious and require a case by case analysis. The Ninth Circuit clarified that the five-year requirement for a particularly serious crime is for the actual sentence imposed – including enhancements.
As for the CAT claim the Ninth Circuit found substantial evidence supported the BIA’s determination that Mr. Mairena was ineligible for CAT relief. The Ninth Circuit used the substantial evidence standard to review factual findings including adverse credibility determinations. Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B); Mairena, slip op. at *9. The case is silent about Mr. Mairena’s application for adjustment of status and the waiver application.