Second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction

Posted on June 14, 2010 by Mike Baker

In Carachuri-Rosendo v. Holder (09-60), the Court reverses, in an opinion by Justice Stevens.  The vote is unanimous, though Justices Scalia and Thomas each file opinions concurring in the judgment only.

Issue: Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf

Petitioner, a lawful permanent resident of the United States, faced deportation after committing two misdemeanor drug offenses in Texas.For the first, possession of a small amount of marijuana, he received 20 days in jail. For the second, possession without a prescription of one antianxiety tablet, he received 10 days. Texas law, like federal law, authorized a sentencing enhancement if the State proved that petitioner had been previously convicted of a similar offense, but Texas did not seek such an enhancement here. After the second conviction, the Federal Government initiated removal proceedings. Petitioner conceded that he was removable, but claimed that he was eligible for discretionary cancellation of removal under the Immigration and Nationality Act (INA) because he had not been convicted of any “aggravated felony,” 8 U. S. C. §1229b(a)(3). Section 1101(a)(43)(B) defines that term to include, inter alia, “illicit trafficking in a controlled substance . . . including a drug trafficking crime” as defined in18 U. S. C. §924(c), which, in turn, defines a “drug trafficking crime” as a “felony punishable under,” inter alia, “the Controlled Substances Act (21 U. S. C. 801 et seq.).” A felony is a crime for which the“maximum term of imprisonment authorized” is “more than one year.” §3559(a). Simple possession offenses are ordinarily misdemeanors punishable with shorter sentences, but a conviction “after a prior conviction under this subchapter [or] the law of any State . . . has become final”—a “recidivist” simple possession offense—is “punishable” as a “felony” under §924(c)(2) and subject to a 2-year sentence. Only this “recidivist” simple possession category might be an“aggravated felony” under 8 U. S. C. §1101(a)(43). A prosecutor must charge the existence of the prior conviction. See 21 U. S. C. §851(a)(1). Notice and an opportunity to challenge its validity, §§851(b)–(c), are mandatory prerequisites to obtaining a punishment based on the fact of the prior conviction and necessary prerequisites to “authorize” a felony punishment, 18 U. S. C. §3559(a), for the simple possession offense at issue. Here, the Immigration Judge held that petitioner’s second simple possession conviction was an “aggravated felony” that made him ineligible for cancellation of removal. The Board of Immigration Appeals and Fifth Circuit affirmed. Relying on the holding in Lopez v. Gonzales, 549 U. S. 47, 56—that to be an “aggravated felony” for immigration law purposes, a state drug conviction must be punishable as a felony under federal law—the court used a “hypothetical approach,” concluding that because petitioner’s “conduct” could have been prosecuted as a recidivist simple possession under state law, it could have also been punished as a felony under federal law.

Posted in Deportation for Drug Crimes, U.S. Supreme Court | Leave a comment

Chinese Asylum: Is it appropriate to treat suing a unit of government as a legitimate means of expressing one’s political opinion? 7th Circuit 2010

Posted on June 10, 2010 by Mike Baker

Xiu Chen v. Eric Holder, Jr. (Easterbrook)
Full Text

A Chinese citizen’s petition for review of BIA’s denial of her application for asylum is granted and remanded as the Board has never addressed the question of whether it is appropriate to treat suing a unit of government as a legitimate means of expressing one’s political opinion. Furthermore, the Board needs to consider the possibility that, if China has classified petitioner as a public protester, then perhaps an imputed political opinion is “at least one central reason” for the attempted arrest for filing suit against the local government for confiscating her father’s land without just compensation.

Xiu Qin Chen, a citizen of China, seeks asylum in the United States. She contends that China persecuted her because of her political opinions and will imprison her because of those opinions should she be returned. Her political opinion, as she expresses it in this court, is that China should pay just compensation when it takes private property for public use. That capitalist principle, enshrined in the fifth amendment to the Constitution of the United States, is less honored in communist nations.

Chen contends that her home town of Langqi razed about a dozen homes in order to construct a military building. (We recount her story, which the Board of Immigration Appeals accepted provisionally.) Officials promised to provide similarly sized plots of land and to pay for construction of new houses within three months, and to provide rent for transitional housing. The rent was paid, but when four months passed without the transfer of new land or the money to build new homes, Chen filed suit against the local government. The court dismissed that suit, and officials appeared at her family’s rented home with a warrant for her arrest. She fled. Police have tried to find her ever since, and when her father refused to reveal her whereabouts he was beaten and his leg broken. But the Board of Immigration Appeals concluded that Chen’s lawsuit did not advance a political position, so the government’s reaction, though excessive, was not on account of “political opinion” within the meaning of 8 U.S.C. §1158(b)(1)(B)(i).

One circuit has held that litigation is a form of political expression that can make a person eligible for asylum. Baghdasaryan v. Holder, 592 F.3d 1018, 1020–21, 1024 (9th Cir. 2010); Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1044–45 (9th Cir. 2008). Another has implied this, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 547–48 (2d Cir. 2005), though that decision did not arise from litigation. Chen urges us to follow these decisions and rule in her favor on the political-opinion question, remanding to allow the agency to address the rest of the statutory issues. Things are not quite that simple, however.

First, the ninth circuit approached the subject as if the judiciary made an independent decision. It does not. The Attorney General, and his delegate the Board of Immigration Appeals, are principally responsible for interpreting ambiguous terms in the immigration laws, and the judiciary must respect administrative decisions that plausibly implement this legislation. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), applied to immigration law by INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999). See also Negusie v. Holder, 129 S. Ct. 1159, 1163–64 (2009). The alien must establish that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant”. 8 U.S.C. §1158(b)(1)(B)(i). These are not self-defining terms, so administrative officials have considerable leeway.

Second, it is necessary to distinguish having a political opinion from the means of its expression. The United States does not allow punishment for anyone’s political views—but rules for the time, place, and manner of expression are independent of the speaker’s politics. Thus it may be permissible to punish a person for waking up the neighbors with a bullhorn, even though the viewpoint of the amplified statements cannot be penalized. See Ward v. Rock Against Racism, 491 U.S. 781 (1989). And a public demonstration that blocks access to a person’s home, and spoils the quiet that people need in their daily lives, may be curtailed. See Frisby v. Schultz, 487 U.S. 474 (1988). The second and ninth circuits appear to have assumed that the time, place, and manner rules used in the United States apply equally to foreign nations, and that any departure from them penalizes political opinion. That is far from clear to us. The foundation for the time, place, and manner rules is that they do not concern the viewpoint or content of the speech. In California, shopping malls are open to political demonstrations, see PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). But if a foreign nation bans political speech at shopping malls and arrests picketers as trespassers, that is not necessarily punishment for “political opinion”; it may be no more than insistence that political opinion be expressed in a different place. Thus if a foreign state decides that litigation is not an appropriate forum for political opinion, it would be hard to characterize that as persecution.

Third, the United States has itself limited the expression of political opinion in the courts. True enough, litigation is protected by the first amendment as one of the ways by which the people may petition for redress of grievances. See Lewis v. Casey, 518 U.S. 343 (1996); NAACP v. Button, 371 U.S. 415 (1963). Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510–11 (1972). But this does not imply that litigation is just politics by other means. See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). A court is the forum in which legal rights are vindicated, and people who use litigation solely as a pulpit for political protest may be penalized if the suit is objectively baseless. BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum | Leave a comment

Driving While License Revoked (DWLR) offense was not a lesser-included offense of aggravated DUI.People v. Nunez Filed 3-18-10

Posted on June 7, 2010 by Mike Baker

The fact that Defendant’s driver’s license was revoked at the time he drove while under the influence is not an element of the DUI offense, but rather it was a factor that served to enhance the sentence classification from a misdemeanor to a Class 3 felony DUI. As a matter of law, Defendant’s Driving While License Revoked (DWLR) offense was not a lesser-included offense of aggravated DUI.

Following a bench trial in the circuit court of Cook County, defendant Jorge Nunez was convicted of one count of aggravated driving under the influence of a drug or combination of drugs during a period in  which his driver’s license was suspended or revoked (aggravated DUI), in violation of sections 11–501(a)(4) and (c–1)(2.1) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11–501(a)(4),  (c–1)(2.1) (West 2006)), and one count of driving while his driver’s license was suspended or revoked (DWLR), in violation of section 6–303(d) of the Vehicle Code (625 ILCS 5/6–303(d) (West 2006)).  Defendant was sentenced to two concurrent terms of two years’ imprisonment.

No. 108189 People v. Nunez

Posted in DUI criminal charge in Illinois, Illinois DUI lawyer | Leave a comment

There must be evidence of the presence of cannabis in the blood, breath, or urine to be found guilty of a DUI based on 11-501(a)(6) People of the State of Illinois v. Samuel McPeak, No. 2080572

Posted on June 7, 2010 by Mike Baker

The 2nd District recently ruled that there was insufficient evidence to convict for a DUI where there was neither evidence of impaired driving nor evidence of cannabis in the breath, blood, or urine of the defendant.

Defendant Samuel McPeak was found guilty of DUI (625 ILCS 5/11-501 (a) (6)) after the trial court denied his motion to quash the arrest and suppress evidence at a stipulated bench trial.

McPeak subsequently appealed on two grounds: 1) the stipulated facts were insufficient to convict him; and 2) he was not properly admonished under Supreme Court Rule 402. The appeals court reversed and remanded based on improper admonishments in accordance with Supreme Court Rule 402. At that point they didn’t address the adequacy of the evidence presented; McPeak’s first ground for appeal.

In this case the court focused on People v. Allen, 375 Ill. App. 3d 810 (2007) and People v. Briseno, 343 Ill App. 3d 953 (2003) as helpful in McPeak’s argument.

In Allen the defendant was also convicted of a DUI based on cannabis and the Third District reversed based on insufficient evidence, stating:

The statute does not criminalize having breath that smells like burnt cannabis. Furthermore, even though the trial court found the officer’s testimony credible regarding defendant’s admission of smoking cannabis the night before his arrest, the State put on no evidence that there would have been ‘any amount’ of the illegal drug in defendant’s breath, urine, or blood at the time of defendant’s arrest as a result of smoking cannabis the night before. Allen, 375 Ill. App. 3d at 816.

The court further addressed the State’s argument that with the additional circumstantial evidence of drug paraphernalia that there was enough evidence to convict. The argument was dismissed because there was no additional evidence of impaired driving (recall the basis of the stop was a seat belt violation). Ultimately, the State was unable to prevail against the court’s decision that there was no evidence of any cannabis remaining in McPeak’s breath, blood, or urine when he was driving.

This decision seems to put the brakes on the statute’s requirement of “any amount of drugs” in the body being sufficient to convict for a DUI. It appears with this ruling that the state will need to make a showing of 1) impaired driving; 2) physical indicators of drug consumption aside from a defendant’s admission, and 3) evidence that the drug is actually in the breath, blood, or urine at the time of the offense.

Posted in DUI criminal charge in Illinois, Illinois DUI lawyer | Leave a comment

Matter of MONGES-Garcia, 25 I&N Dec. 246 (BIA 2010)

Posted on June 3, 2010 by Mike Baker

BIA Finds No Conflict Between Regulation’s Time Limits on Motions to Reopen and INA § 242B(e)(1)’s Limit on Discretionary Relief.

(1) The 90-day time limitation for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or after the 1996 promulgation of the regulations.

(2) The 5-year limitation on discretionary relief for failure to appear at deportation proceedings under former section 242B(e)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(e)(1) (1994), is not in conflict with, and does not provide an exception to, the 90-day deadline for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1).

The Board of Immigration Appeals (BIA or Board) held in Matter of Monges-Garcia, 25 I. & N. Dec. 246 (B.I.A. May 20, 2010), that (1) the 90-day time limitation for filing a motion to reopen in 8 CFR § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or after the 1996 promulgation of the regulation, and (2) the five-year limitation on discretionary relief for failure to appear at deportation proceedings under former INA § 242B(e)(1) (1994) is not in conflict with, and does not provide an exception to, that 90-day deadline for filing a motion to reopen. The matter was before the BIA following the U.S. Court of Appeals for the Ninth Circuit’s remand of the Board’s prior decision in the matter to permit the Board to answer these questions, Monges-Garcia v. Gonzales, 228 Fed. Appx. 665 (9th Cir. 2007).

The respondent is a native and citizen of Honduras who entered the U.S. without inspection on February 16, 1994, after which deportation proceedings were initiated against her with the issuance of an order to show cause and notice of hearing (Form I-221). When the respondent failed to appear for her scheduled hearing on October 28, 1994, the immigration judge (IJ) ordered her deported in absentia. On April 7, 2003, the respondent filed a motion to reopen her deportation proceedings, seeking to apply for adjustment of status based on her marriage to a U.S. citizen. The IJ denied the motion, finding that the respondent did not establish that her failure to appear resulted from a lack of notice or exceptional circumstances as required by former INA § 242B(e)(1) and that her motion was time barred under the regulations. The Board upheld this decision, and the respondent sought review in the Ninth Circuit, which remanded.

Former INA § 242B(e)(1), which was added by § 545(a) of the Immigration Act of 1990 (IMMACT), [FN3]  provides as follows: At deportation proceedings.–Any alien against whom a final order of deportation is entered in absentia under this section and who, at the time of the notice described in subsection (a)(2), was provided oral notice, either in the alien’s native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined in subsection (f)(2)) to attend a proceeding under section 242, shall not be eligible for relief described in paragraph (5) for a period of 5 years after the date of the entry of the final order of deportation.

Listed in paragraph (5) are voluntary departure under INA § 242(b)(1) [8 USCA § 1252(b)(1)], suspension of deportation or voluntary departure under INA § 244 [8 USCA § 1254], and adjustment or change of status under INA §§ 245, 248, or 249 [8 USCA §§ 1255, 1258, or 1259]. In conjunction with this and other provisions in § 242B relating to the required notice of deportation hearings that must be given to aliens and the consequences for their failure to appear, Congress mandated that the Attorney General issue implementing regulations within six months of enactment of IMMACT regarding the period of time in which motions to reopen and to reconsider may be offered in deportation proceedings, including a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions. Accordingly, the Department of Justice published a final rule in 61 Fed. Reg. 18900 (Apr. 29, 1996), effective July 1, 1996. The regulation, now at 8 CFR § 1003.23(b)(1), provides that, subject to certain exceptions, a party may file only one motion to reconsider and one motion to reopen proceedings, which must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later.

The BIA, in an opinion written by Board Member Charles K. Adkins-Blanch and joined by Board Member John H. Guendelsberger and Temporary Board Member Jean C. King, found that, pursuant to the time limitations imposed by the regulations, a motion to reopen a final administrative order of removal, deportation, or exclusion entered on or after the July 1, 1996, effective date is subject to the 90-day deadline because 90 days after the date of the order would be later than September 30, 1996. In addition, the Board said, the regulations make clear that any motion to reopen such a final order entered before July 1, 1996, must necessarily be filed by September 30, 1996, which is the later deadline in that case. Since these regulations were promulgated pursuant to Congress’ directive in conjunction with its enactment of the enforcement provisions of INA § 242B setting forth the consequences of failure to appear at deportation proceedings, the Board concluded that (1) Congress clearly intended that the time and number limitations on motions would further the statute’s purpose of bringing finality to immigration proceedings and (2) therefore, the 90-day time limitation for filing a motion to reopen contained in 8 CFR § 1003.23(b)(1) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or *1052  after the 1996 promulgation of the regulations. Thus, since the respondent is subject to the current version of 8 CFR § 1003.23(b)(1), which required her to file her motion to reopen by September 30, 1996, because her in absentia deportation order was issued on October 28, 1994, and her motion to reopen was not submitted until April 7, 2003, the Board found her motion untimely filed and therefore properly denied by the IJ.

Turning to the Ninth Circuit’s second question, the Board found no conflict between the regulation and INA § 242B(e)(1), both of which emanated from Congress’ concern over delays in immigration proceedings. Since the regulations carry out Congress’ intent, the Board saw no inconsistency between them and the statute. The Board rejected the respondent’s contention that INA § 242B(e)(1)’ s five-year limitation on an alien’s eligibility for discretionary relief as a result of failure to appear at deportation proceedings is an exception to the 90-day deadline in 8 CFR § 1003.23(b)(1). The Board explained that the five-year bar is applicable only to aliens who failed to appear for a hearing, including those who left the U.S. and subsequently returned, whereas the general time limitation on filing a motion contained in 8 CFR § 1003.23(b)(1) is an independent provision that applies to any alien who has been ordered excluded, deported, or removed. These provisions, the Board said, have separate restrictions for different purposes and are not at odds with one another. Moreover, since Congress intended to prevent aliens from obtaining benefits as a result of the mere accrual of time after the entry of a final administrative order, the Board opined that it would be inconsistent with that intent to allow an alien who avoided deportation for more than five years after failing to appear for a hearing to be exempt from the regulatory time limitations on motions to reopen. Thus the Board concluded that aliens must comply with the applicable provisions of both 8 CFR § 1003.23(b)(1) and INA § 242B(e)(1) in order to apply for adjustment of status.

Since the respondent’s motion to reopen was filed well after the regulatory deadlines and did not qualify for any of the permissible exceptions to the time limits on motions to reopen, the Board upheld the IJ’s decision that the respondent was precluded from reopening her proceedings. Therefore, the appeal was dismissed.

Posted in absentia deportation order, BIA, Board of Immigration Appeals, Motions to Reopen | Leave a comment