Category Archives: immigration

Obstruction is not a crime of moral turpitude (at least in Minnesota)

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The Eighth Circuit held in Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020), that obstruction of legal process under Minnesota law is not a crime of moral turpitude sufficient to render an alien removable.

Jose Ortiz became a lawful permanent resident of the United States in 2002. Four years later, in 2006, he pleaded guilty to obstruction of legal process in violation of Minn. Stat. § 609.50, subdiv. 2(2) and was sentenced to one year in prison, with a two-year stay on 320 days of the sentence. Seven years after that, in 2013, DHS initiated removal proceedings against him, alleging that he was removable for (a) having been convicted of an aggravated felony and (b) having been convicted of a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i), (iii).

The first round of appeals involved whether obstruction of legal process is an “aggravated felony.” The IJ said yes, and the BIA affirmed. The Eighth Circuit disagreed, holding that “the minimum amount of force required to sustain a conviction [for obstruction of legal process] is less than the level of force required to constitute a crime of violence.” See Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). The Eighth Circuit remanded for determination of whether obstruction of legal process is a crime involving moral turpitude, which resulted in this opinion.

To determine whether a particular crime is a “crime of moral turpitude” under the INA, courts apply the categorical approach. Importantly, the categorical approach is not a historical question; it does not ask any questions about the facts or allegations underlying the actual conviction. Instead, the categorical approach asks whether the elements of the offense “necessarily fit within” the BIA’s generic definition of a crime of moral turpitude. “If there is ‘a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of a crime’ involving moral turpitude, then the conviction does not categorically constitute a crime involving moral turpitude.” 962 F.3d at 1049 (quoting Moncrieffe, 569 U.S. at 191, and others). So you take the generic elements of the crime (not what may or may not have happened or been proved) and compare them to the definition of a crime of moral turpitude. If all the elements fit within the box of the definition, you have a crime of moral turpitude.

The Eighth Circuit discusses the offense of obstruction of legal process first, but I’m going to start with the definition of a crime of moral turpitude. Because the INA itself does not define “crime of moral turpitude,” courts give substantial deference to the BIA’s interpretation. The BIA has developed a two-prong definition. First, the prohibited conduct must be “per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” 962 F.3d at 1048. Second, “the offense must require ‘a culpable mental state’.” 962 F.3d at 1048 (quoting Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016) and others). In the context of Minnesota criminal law, “culpable mental state” means specific intent (i.e., something like evil intent, depraved or vicious motive, or corrupt mind), not just general intent. A general intent offense “is not considered to be a crime involving moral turpitude.” 962 F.3d at 1050 (citing Matter of Solon, 24 I. & N. Dec. 239, 241 (BIA 2007)).

Turning now to the offense of which Mr. Ortiz was convicted: obstruction of legal process is a general intent offense in Minnesota. 962 F.3d at 1050 (citing State v. Serrano, No. A14-0887, 2015 WL 2456982, at *2 (Minn. Ct. App. May 26, 2015)).

Comparing the elements, then: crimes of moral turpitude require specific intent; obstruction of legal process does not. Therefore, obstruction of legal process is not a crime of moral turpitude and conviction for it will not render an alien removable. Because the BIA reached the opposite conclusion, the Eighth Circuit granted Ortiz’s petition for review and vacated the removal order.

Stopping Time and the Meaning of “A”

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This week’s case comes out of the Tenth Circuit: Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). Judge Bacharach wrote for Judges Holmes and Matheson.

Jose Angel Banuelos Galviz entered the United States in 2006. Around 2009, he received a document from the immigration authorities labeled “notice to appear,” but it did not tell him a time or place to appear. Around 2016, he received a second document, telling him when and where to appear. He showed up. The IJ (or “immigration judge”) ordered Mr. Banuelos removed and denied his requests for asylum, withholding of removal, and protection under the Convention Against Torture. Mr. Banuelos appealed to the BIA (the Board of Immigration Appeals).

While his appeal was pending, the Supreme Court issued its decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). Pereira dealt with a form of relief called “cancellation of removal,” available under 8 U.S.C. § 1229b(1). That provision gives the attorney general, acting through the IJ, permission to let a removable person nevertheless remain in the United States, and potentially adjust to lawful permanent resident status, if he can satisfy four requirements:

  1. 10 years of continuous physical presence in the United States, and
  2. good moral character, and
  3. no convictions for certain specific criminal offenses, and
  4. that his removal “would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child,” so long as the affected spouse, parent, or child is either a U.S. citizen or a lawful permanent resident.

8 U.S.C. § 1229b(b)(1).

The first requirement—ten years of continuous presence—is measured from the time the person enters the United States until the person is served with “a notice to appear under section 1229(a).”[n.1] 8 U.S.C. § 1229b(d)(1). This is referred to as the “stop time rule.” At the time of Mr. Banuelos’s removal hearing, the BIA had held that a so-called notice to appear could stop time even if it did not actually tell you when or where to appear. So even though he received notice of his removal hearing more than 10 years after he entered the United States, the BIA did not consider him eligible for cancellation of removal because he had received a so-called notice to appear just 3 years after entering.

The Supreme Court changed that rule in Pereira, holding that a so-called notice to appear without a time and place does not stop time. In other words, continuous physical presence must be measured from the time you enter the United States until the time you receive a notice to appear telling you when and where to actually appear. Applied to this case: Mr. Banuelos potentially qualifies for cancellation of removal because there were more than 10 years between when he entered and when he received notice of when to appear. Mr. Banuelos asked the BIA to remand back to the IJ to consider his application for cancellation of removal. The BIA denied that request, and he petitioned the Tenth Circuit for review.

The Tenth Circuit granted review and remanded to the IJ to consider Mr. Banuelos’s application for cancellation of removal. The court determined that, in order to stop time, the notice to appear must be a single document containing all the information required in § 1229(a). Both the plain language of the statute and its legislative history mandate this result.

The plain language of the statute reads: “For the purposes of this section, any period of . . . continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a) defines a “notice to appear” as a written notice specifying certain things, including “The time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G). Therefore, a written notice that does not include the time and place is not a “notice to appear under section 1229(a)” and does not stop time.

But what if you get two documents, one containing some of the information, and another one containing the rest? Some jurists think that the two documents can combine into “a notice to appear under section 1229(a)” and therefore stop time. The Tenth Circuit disagreed, based on the relevant legislative history.

Prior to the enactment of the current section 1229(a), removal proceedings were initiated with two documents: an order to show cause and a notice of hearing. Then, Congress changed the process in 1996:

To simplify removal proceedings, Congress adopted § 1229(a), replacing the two documents with a single notice to appear, which had to include all of the information previously sprinkled throughout the order to show cause and the notice of hearing. Given this congressional intent to replace two documents with one, we should be wary of reading the singular “a” in § 1229 to refer to multiple documents.

Banuelos v. Barr, 953 F.3d 1176, 1182 (10th Cir. 2020) (citing Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. 104-469(I) (1996)).

If two documents were required before, then only a single document is required now. Only if that single document satisfies all the requirements of section 1229(a) (including the requirement of a specific time and place to appear) will it stop time for purposes of cancellation of removal. Because Mr. Banuelos did not receive that single document until more than 10 years after he had entered the United States, the Tenth Circuit remanded to the IJ to consider his application for cancellation of removal.

It should be noted that not everybody agrees with the Tenth Circuit. The court itself noted that, while the Third and Ninth Circuits agree with the Tenth, the Fifth and Sixth Circuits do not. See Guadalupe v. Attorney General, 951 F.3d 161 (3d Cir. 2020) (subsequent notice of hearing does not retroactively cure a defective notice to appear); Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (same); but see Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020) (time stops when the person “receives all required information, whether in one document or more”); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (same). Given the present administration’s aggressive stance on removal, there are a lot of cases percolating through the federal courts. The Supreme Court may have to resolve the split before too long. In the meantime, if you live in Texas, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, or Michigan, this case may not be helpful to you

  1. Intrepid readers will note that section 1229b(b)(1)(A) does not say that time stops when you are served with a notice to appear. That section says that time stops on “the date of [the] application” for cancellation of removal. But you wouldn’t apply for cancellation of removal until after you had been ordered removed. And you cannot be ordered removed without being served with a notice to appear. 8 U.S.C. § 1229(a). But being served with a notice to appear stops time for continuous physical presence. 8 U.S.C. § 1229b(d)(1). So which one is it—does time stop when you’re served with a notice to appear or when you apply for cancellation? This kind of internal conflict plagues the immigration system. It makes lawyers scared to enter the field, and it virtually guarantees that people representing themselves will trip on something.

Exile and the Right to Counsel

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Hernandez v. Barr (1st Cir. June 15, 2020) (Lipez, J., writing for Barron and Stahl)

Lawyers are important to the administration of justice. The Founding Fathers included the right to counsel in criminal trials in their Bill of Rights in 1791 (almost half a century before Englishmen enjoyed the right): “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In 1938, the Supreme Court held that if the accused in a federal case cannot afford counsel, he has the right to appointed counsel paid for by the government. Johnson v. Zerbst, 304 U.S. 458, 463 (1938). And in 1963, the right to appointed counsel was extended to state court cases. Gideon v. Wainwright, 372 U.S. 335 (1963).

But it doesn’t apply to removal cases in immigration court. This is because they are “deemed to be civil, not criminal, proceedings.” Paul v. INS, 521 F.2d 194, 197 (5th Cir. 1975). There is, however, a statutory right to retained (not appointed) counsel in removal proceedings:

In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.

8 U.S.C. § 1362.

It is the law of the land that exile is sufficiently less bad than imprisonment that poor people facing it can be forced to defend themselves, often with disastrous consequences. But what happens when a detained respondent in a removal proceeding tries to retain counsel but, because of her detention, misses it by one day? The First Circuit, in Hernandez v. Barr, says the immigration court has to give her that extra day.

The IJ says Ms. Hernandez didn’t try hard enough to get counsel.

Ana Ruth Hernandez Lara entered the United States in the fall of 2013 without being admitted or paroled. She found her way to Portland, Maine, where she was arrested by immigration officers five years later. They transported her 60 miles south to Dover, New Hampshire, for detention. The removal proceedings were probably held in Boston, another 60 miles south of Dover. (The reader may be interested to note that El Salvador, the country she left, is only 191 miles long.)

Here is what happened after she was arrested:

  • September 20—Ms. Hernandez was arrested.
  • October 11—Ms. Hernandez appeared without counsel at her master calendar hearing. The immigration judge (“IJ”) advised her of her right to retained counsel and asked whether she wanted an opportunity to find one. She responded “that she had an attorney who was not aware of the hearing.” (Slip op. at 5.) Ms. Hernandez does not speak English and required the assistance of an interpreter at this and all subsequent hearings.
  • October 18—Ms. Hernandez appeared for her second hearing, the custody and bond proceedings. She appeared at this hearing with an attorney (“Laura the Bond Attorney”), but Laura requested a week “to decide whether she would continue to represent [Ms.] Hernandez.” (Slip Op. at 4–5.)
  • October 25—Ms. Hernandez appeared for her third hearing, this time without counsel. The IJ asked whether she had an attorney, and she said, “Yes, I have one.” Ms. Hernandez believed that Laura the Bond Attorney, would continue representing her. She was wrong. The IJ “confirm[ed] that [Laura’s] entry of appearance was limited to the bond hearing and that no other attorney had entered an appearance for the removal proceedings” and “informed [Ms.] Hernandez that she would have to ‘speak for herself and represent herself’ that day.” (Slip Op. at 7 (original revisions omitted).)
    The IJ then read her the allegations, asked her questions, and “found [her] removable as charged.” (Slip Op. at 7.) The IJ asked her some more questions and handed her a Form I-589, the application for relief from removal. He recessed the hearing for another eight days so she could “fill out the application completely in English.” (Slip Op. at 7.)
  • October 29—Laura the Bond Attorney told Ms. Hernandez that she can no longer represent Ms. Hernandez. Ms. Hernandez started looking for new counsel.
  • November 2—Ms. Hernandez appeared for her fourth hearing, again without counsel. The IJ asked whether she had counsel, and she explained that she had been trying to find new counsel since she found out that Laura the Bond Attorney would no longer represent her. “They say they cannot take my case from one day to another, so they asked me to ask the judge if they could give me another day for them to review my file to see if they can take my case.” (Slip Op. at 8.) The IJ informed her she would have to proceed without counsel and speak for herself.
    The IJ asked whether she had filled out Form I-589. Ms. Hernandez: “Well, the problem is that I can’t write in English and I can’t read it, so I couldn’t fill it out.” (Slip Op. at 9.) The IJ recessed for six more days so she could fill it out.
  • November 6—Laura the Bond Attorney asked for permission to turn Ms. Hernandez’s file over to a new attorney.
  • November 8—Ms. Hernandez appeared for her fifth hearing, again without counsel. She told the IJ about Laura asking for permission two days earlier to turn the file over to a new attorney, whom Ms. Hernandez “expected . . . to visit [with] at the Stafford County Jail either that day or the following day.” (Slip Op. at 9–10.) The IJ informed her that she would have to proceed without counsel and speak for herself.
    The IJ asked about Form I-589 again. Someone at the jail had helped her fill out part of it—but it was the wrong part. The IJ recessed the hearing again and gave her one last chance to get it right.
  • November 9—Ms. Hernandez met with her new lawyer, who agreed to take the case.
  • November 16—Ms. Hernandez appears for her sixth hearing, again without counsel. Laura the Bond Attorney still hadn’t turned over the file. Ms. Hernandez “asked the IJ for a continuance to allow her new attorney to be present.” The Government objected to a continuance “for attorney prep,” and the IJ agreed. The IJ told Ms. Hernandez she would have to proceed without counsel and speak for herself. The IJ then conducted the hearing on relief from removal and denied her request.

The Board of Immigration Appeals affirmed the IJ’s decision, and Ms. Hernandez petitioned the First Circuit for relief.

The First Circuit says she tried hard enough.

The First Circuit analyzed Ms. Hernandez’s petition for review for two elements: error and prejudice. For error, the First Circuit analyzed whether the IJ properly denied her last continuance request. There is a special standard for continuance requests based on the need to retain counsel: “absent an express waiver of the right to counsel, the IJ ‘must grant a reasonable and realistic period of time to provide a fair opportunity for a respondent to seek, speak with, and retain counsel’.” (Slip Op. at 18 (citing In re C-B-, 25 I. & N. Dec. 888, 889 (BIA 2012)).)

The Government had argued, and the IJ and BIA found, that Ms. Hernandez had had “five weeks” to find an attorney. But they measured the time period incorrectly. Rather than measuring it from the first hearing, they should have measured it from the moment she “knew that [her] retained counsel would no longer be representing [her].” (Slip Op. at 21 (citing Mendoza-Garcia v. Barr, 918 F.3d 498, 506 (6th Cir. 2019)).) Ms. Hernandez didn’t understand that Laura the Bond Attorney would not be representing her until October 29. It was only 18 days from then until her final hearing on November 16. During those 18 days, she successfully retained counsel, but that counsel failed to appear on November 16 because Laura the Bond Attorney failed to turn over the file in time. “Accordingly, we readily conclude that the IJ, by denying [the last request for more time so that her counsel could be present], failed to ‘meaningfully effectuate’ the statutory right to counsel.” (Slip Op. at 24.) I can’t help but wonder: Would the continuance have been granted if counsel had been present?

So the IJ erred. Who cares? Was it prejudicial? The court’s discussion of prejudice reminded this reader of Gideon’s Trumpet:

  • “That [Ms.] Hernandez raised this argument before the BIA when she was represented, but did not do so before the IJ when proceeding pro se, highlights the difference that the assistance of a lawyer can make.” (Slip Op. at 27.)
  • “Though an attorney would object to that kind of error in an oral decision, [Ms.] Hernandez understandably did not do so.” (Slip Op. at 27.)
  • “Here, the BIA . . . concluded that there was ‘insufficient evidence’ in the record . . . . But the record in this case was undeveloped precisely because [Ms.] Hernandez lacked counsel.” (Slip Op. at 27–28.)
  • “If [Ms.] Hernandez had been represented at her merits hearing, her attorney likely would have drawn that important connection, adduced other . . . evidence to support [Ms.] Hernandez’s testimony and . . . elicited more detailed testimony.” (Slip Op. at 28.)

In other words: of course she lost below—she’s not a lawyer, and she didn’t know how to defend herself. Therefore: prejudice and remand.

Can you fix a record broken by lack of counsel?

One last point bears emphasizing. The regulations expressly prohibit reopening removal proceedings “unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

The Fifth Circuit has repeatedly held that there are no do-overs if you could have done it right the first time. In Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993), for example, the Fifth Circuit refused to reopen removal proceedings where “All of this evidence [in favor of asylum] existed and was available at the time of the original deportation proceeding.” Ogbemudia, 988 F.2d at 600. Or, as the Fifth Circuit noted more recently: to show prejudice, an immigrant must “advance[] grounds for relief that were available at the time of the removal hearing that an attorney might have brought to the IJ’s attention.” Soto v. Holder, No. 12-60238, Slip Op. (5th Cir. Apr. 26, 2013).

In short, it is very difficult to fix a broken record in immigration court.