Legal News and Blog

The BIA takes a third crack at Silva-Trevino and the categorical approach for CIMTs

In the continuing saga of Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), the BIA was again asked to determine whether Texas Penal Code 21.11(a)(1) (indecency with a child) is a crime involving moral turpitude. This case has had a long history and has been the focal point of the Board's CIMT categorical approach analysis for eight years. The case has revolved around the difficult questions of how and when to apply the categorical and modified categorical approach. In Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), the Attorney General created a three-step framework for determining whether any crime of conviction involves moral turpitude: 1) examine the statute of conviction and

The 5th Cir. finds ineffective assistance of counsel meets the "exceptional circumstances" standard

Murillo-Robles v. Lynch, No. 15-2568 (1st Cir., Oct. 7, 2016) is a case involving the “exceptional circumstances” rescission of an in absentia (with notice) order of removal and provides a study in attorney apathy and incompetence. Murillo-Robles entered the U.S. as an eleven-year old, having been petitioned by his stepfather. Two years later he applied to remove conditions from his residency. Then the circus began. His first attorney failed to respond to a request for evidence from USCIS and the application to remove conditions was denied. He was then placed into removal proceedings and requested continuances to adjudicate a second I-751. That petition was denied because the attorney di

The Fifth Circuit holds that Missouri sexual abuse of a minor is "crime of violence"

The criminal defendant in United States v. Lara-Martinez, No. 15-41497 (5th Cir. Sept. 6, 2016) was convicted of illegal reentry after previous deportation. He was charged with a sentence enhancement for the “sexual abuse of a minor” sub-definition of “crime of violence” under U.S.S.G. section 2L1.2 cmt. 1(B)(iii) because of a Missouri conviction of sexual misconduct involving a child. Lara-Martinez asserted that his conduct was not categorically sexual abuse of a minor because, he claimed, the Missouri offense does not require that a minor be involved. He stated this was the case because an of-age peace officer posing as a child suffices for the conviction. Citing Taylor v. United States,

The BIA finds yet another copyright/trademark infringement is a CIMT

In Matter of Raul Zaragoza-Vaquero, 26 I&N Dec. 814 (BIA 2016), the Board of Immigration Appeals held that the offense of criminal copyright infringement in violation of 17 U.S.C. 506(a)(1)(A) and 18 U.S.C. 2319(b)(1) is a crime involving moral turpitude. The immigration judge had found the alien removable under INA 212(a)(6)(i) and then pretermitted his application for cancellation of removal for certain nonpermanent residents under INA 240A(b)(1) because, the IJ alleged, his conviction for “reproducing and distributing infringing copes for commercial advantage or private financial gain” was a CIMT. The case does not explain the facts underlying the conviction. In examining whether the co

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