Cutting to the Heart of the Matter: Determinations in Removal Proceedings

Many people in the U.S. are tired of the debate on Comprehensive Immigration Reform ("CIR") and simply want to have some finality on whether or not it is going to pass. Unfortunately, such a determination despite the efforts by some including Dan Pfeiffer, Assistant to the President, appears to be far from becoming final, and instead more discretion in how the law is enforced, rather than a change in the law itself, appears to be the proposed interim solution.

Nevertheless, in spite of the continued refusal of the U.S. Congress, particularly the U.S. House of Representatives, to have a final vote on CIR, the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, issued four decisions that may be best summarized as cutting to the heart of the matter.

Three of the four published decisions pertained to whether a person's conviction rendered him/her removable or otherwise ineligible for relief from removal. For instance, in Coronado v. Holder, the court first determined that a Mexican man's state conviction for possession of methamphetamine was not categorically a controlled-substances offense as defined by the Immigration and Nationality Act ("INA"), meaning there was at least some activity for which one could be convicted under the state criminal law that would nevertheless not affect the convicted person's immigration status. Next, the court determined that because the state law was divisible, i.e., it references different drugs in the alternative rather than in the aggregate to establish its basis, the modified categorical approach could be pursued, meaning that the actual details of the alleged offense could be reviewed. After conducting the modified-categorical analysis, the court concluded the man had been convicted of a controlled-substances offense as defined by the INA.

Similarly, in Turijan v. Holder, the court ruled that a Mexican man's state conviction for false imprisonment, which was specifically charged as a felony effected by violence, menace, fraud, or deceit, was not categorically a crime involving moral turpitude ("CIMT"). However, in a footnote, the court noted that because the record did not contain any further details regarding the conviction, the modified-categoral could not be used to determine whether the conviction amounted to a CIMT.

Moreover, in Perez-Palafox v. Holder, the court ruled that the BIA did not engage in impermissible factfinding that led to the conclusion that a Mexican man's state conviction for transportation of methamphetamine constituted a particularly serious crime that rendered him ineligible to maintain his prior grant of withholding of removal.

The Ninth Circuit also discussed this past week the issue of credibility. In Huang v. Holder, the court sided with the relevant immigration judge's conclusion that a Chinese woman's demeanor while testifying, in part, conveyed that she was not being in honest regarding her asylum application.

All four cases show a concerted effort by the Ninth Circuit to clarify as much as possible what is permissible and what is not permissible during removal proceedings, something that CIR should accomplish if passed, but there still continues to be anything but clarity regarding whether such passage will occur.