Analyzing immigration consequences of TX crimes in light of recent U.S. Supreme Court decisions Zelda Vasquez Board Certified in Immigration and Nationality Law Whittenburg & Strange, P.C.

Recent SCOTUS Decisions Mathis v. United States, No. 15-6092 (U.S. June 23, 2016) Mellouli v Lynch, 575 U.S. _ (2015) Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) Descamps v. United States, 133 S.Ct. 2276 (2013)

Categorical approach: How TO Categorical approach: has the defendant (or respondent) been convicted of a crime in a certain category? What is the definition of the crime stated in the category? If not referenced in the INA, find the generic federal definition Does the Texas Penal Code match the federal definition (USC section or generic)? Yes? Then the conviction qualifies as a predicate for the removal ground If it is BROADER, then NO: the state crime does not qualify as a predicate for the removal ground CIMT Agg Fel Firearms Offense Crime of Domestic Violence 3.a. In Mathis, one of the elements listed various factual means of commiting that element: unlawfully entering any building, structure or land water or air vehicle.” Generic definition said unlawful entry into a building or other structure. He unlawfully entered a structure. However, the court can’t take facts into consideration. Only the elements get compared. Remember, elements, not facts. Elements are the constituent parts of a crime’s legal definition- the things the prosecution must prove to sustain a conviction. 3.b.In fact, no conviction under that state law could count as a predicate for removability.

What if the Penal Code lists alternatives? Are the listed items elements or means of committing the element? If they are elements, use the modified categorical approach…

Modified CATEGORICAL APPROACH If there are multiple elements, the judge may look at the record of conviction to determine under which element the person violated the statute, thus narrowing the offense of conviction. If the ROC is not clear, the conviction is not a predicate to a removal ground. If the ROC is clear, then the conviction is a predicate. Multiple elements means the statute is “divisible.” ROC: Statutory definition of the offense, as interpreted by caselaw;  Charging document, if there is proof that the charge was pled to.  Written plea agreement;  Transcript of plea colloquy; and  “Any explicit factual finding by the trial judge to which the defendant assented,” which has been held to include:  Certain notations on an Abstract or Minute Order (See Part E, infra) Where the conviction was by jury, the Supreme Court has held that the complaint, jury instructions, and verdict can be used. AT THE END OF THE DAY, what is your goal as an immigration attorney? You don’t want the statute to be divisible, you want it to be overbroad, so that no conviction triggers removal.

GOMEZ-PEREZ v. lynch (5th Cir. 2016) BIA Texas Penal Code 22.01(a)(1) Intentional act required for a conviction to qualify as a CIMT In Matter of Solon (2007), the BIA holds that the Texas assault statute is not limited to intentional acts A person commits an offense if the person… intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse… When Gomez’ case is on appeal to the BIA, they find that the Texas assault statute is divisible and apply the modified categorical approach to see if he had committed an intention assault. What is the problem with the modified categorical approach? Statement of facts- defendants don’t challenge admitted facts as juries, and judges, are not required to settle on whether it was intentional, or knowing, or reckless. Therefor, much of the facts in a case may not have been legally relevant.

GOMEZ-PEREZ v. lynch (5th Cir. 2016) Result: the statute is overbroad = not a categorical match = simple assault is never a CIMT. The fifth circuit talks about the minimum conduct test: what is the minimum conduct that would violate the statute. Here, it is recklessness, so it does not qualify as a CIMT. Why does this matter? Non-LPR cancellation; naturalization, grounds of deportability.

OTHER RELEVANT CASELAW Matter of Silva-Trevino: Silva-Trevino III AKA OH THANK GOD. Silva-Trevino spans back to 2008, when Attorney General Michael Mukasey published a decision in which he offered a new framework for determining whether a conviction is for a crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (“Silva-Trevino I”). The controversial feature of this framework was that it permitted immigration judges to consider factual evidence in determining whether a conviction was for a crime involving moral turpitude if the traditional “categorical” approach did not supply a definitive answer. Over the next seven years, several courts of appeals rejected this approach, including the Fifth Circuit in Mr. Silva-Trevino’s own case.  See Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011); Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009).  In 2015, Attorney General Holder, recognizing the depth of this split of authority, vacated his predecessor’s decision and remanded the case to the BIA to articulate a framework for analyzing whether a crime involves moral turpitude. Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015) (“Silva-Trevino II”). The Board’s decision is, therefore, the third precedent decision from the Department of Justice in this case. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) (“Silva-Trevino III”). Silva-Trevino III sets out several important principles guiding any moral turpitude analysis. First, like most courts of appeals and Attorney General Holder, Silva-Trevino III discards any fact-based inquiry and reaffirms that the categorical and modified categorical approaches of analyzing criminal statutes provide the framework for determining whether a conviction is for a crime involving moral turpitude.

Mellouli v. lynch (2015) INA § 237(a)(2)(B)(i): Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

Mellouli v. lynch (2015) Drug Paraphernalia Conviction Substance Listed in the CSA Deportable In Mellouli v. Lynch, the Supreme Court recognized that a conviction for an offense “relating to a controlled substance” must be rooted in there being a direct link between an alien’s crime of conviction and a particular federally controlled drug. Texas follows the CSA, but the point in our state is that if a substance isn’t identified, conviction is not a predicate for deportability.

See also Le v. Lynch, No. 13-60664 (5th Cir. Jan. 6, 2016).

Questions?