On Good Moral Character for Naturalization Purposes


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On Good Moral Character for Naturalization Purposes

  1. 1. On Good Moral Character for Naturalization Purposes By Joseph P. Whalen (May 5, 2012) Sexual Abuse of a Minor IS an Aggravated Felony and Bars NaturalizationThis issue has a rather complex history, fraught with controversy. I for one, hatedthe BIA’s decision in its display of muddled reasoning in Matter of Crammond, 23I&N Dec. 9 (2001). I appreciated the dissent from that opinion and am glad that themajority opinion was quickly vacated even if it was done so begrudgingly and theBIA’s vacation was rather disingenuous and based on a bloated technicality. Iknow of at least one individual who had been denied naturalization just before thatdecision came along on March 22, 2001 who benefited from it. In a SecondHearing pursuant to filing an N-336, that person who had been deniednaturalization for what was determined to be “sexual abuse of a minor” happenedto be in the right place at the right time. Due solely to the effect of Crammond, theService was forced to approve the naturalization application (N-400). The vacationof that lousy decision on October 16, 2001 came too late to fully serve justice. A Current CaseA naturalization application (N-400) was denied in New Jersey on August 2, 2010.The administrative pathway was followed and the denial was upheld on November26, 2010. The challenge to that denial (filed on March 28, 2011) in the DistrictCourt 1 also failed. Bontia v. United States Citizenship & Immigration Services,Civil Action No. 11-cv-1739(DMC-MF) (Dist. NJ 2/28/2012) has been appealed tothe Third Circuit Court of Appeals styled as: Bontia v. USCIS, No. 12-2165, Filedon May 3, 2012. Synopsis of the Bontia Case So Far  On February 11, 1992, Bontia pled guilty to: criminal sexual contact in violation of N.J.S.A. § 2C:14-3(b) and, criminal sexual conduct which would impair or debauch the morals of a child under the age of sixteen in violation of N.J.S.A. § 2C:24-4(a).1 http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2011cv01739/256023/20/ Page 1 of 9
  2. 2.  USCIS found that the conviction under N.J.S.A. § 2C:14-3(b) constituted sexual abuse of a minor, an aggravated felony and barred naturalization.  N.J.S.A. § 2C:14-3(b) indicates that an actor is guilty of criminal sexual contact if he commits an act of sexual contact under any of the circumstances set forth in N.J.S.A. § 2C:14-2(c)(1)-(4).  The indictment charges that Plaintiff “did commit criminal sexual contact .... the victim being at least thirteen but less than sixteen years of age and the actor being at least four years older than the victim . . . .”. This is the conduct proscribed by N.J.S.A. § 2C:14-2(c)(4).  The Third Circuit has already considered the statute at issue in Ijalana v. Attorney General of U.S., 257 F. App’x 594, 596 (3d Cir. 2007). The Ijalana Court found that this subsection constituted sexual abuse of a minor. Id. at 596-97.  Bontia’s appeal will likely be dismissed in an unpublished [Not Precedential] opinion. N-400 Denial  Under the INA, no person shall be naturalized unless such person, among other requirements, “has been and still is a person of good moral character” during all relevant periods. See INA § 316(a)(3) [8 U.S.C. § 1427(a)(3)].  Under the INA, no person shall be regarded as a person of good moral character if, at any time, such person has been convicted of an “aggravated felony.” See INA § 101(f)(8) [8 U.S.C. § 1101(f)(8)].  The term “aggravated felony” applies not only to federal offenses, but also to violations of state law. See INA § 101(a)(43) [8 U.S.C. § 1101(a)(43)]. Various Interpretations of “Sexual Abuse of a Minor”as Aggravated FelonyThe BIA has already analyzed portions of the aggravated felony definition andaddressed “sexual abuse of a minor”. The BIA would revisit the numerous andvoluminous subsection of thestatutory definition may times and will again, andagain. Page 2 of 9
  3. 3. “The definition of an aggravated felony was revised to include “sexual abuse of a minor” by section 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 (“IIRIRA”). Congress did not provide a definition of sexual abuse of a minor in section 101(a)(43)(A) of the Act.” * * * * * “Section 101(a)(43)(A) of the Act includes within the definition of an aggravated felony “murder, rape, or sexual abuse of a minor.” Prior to enactment of the IIRIRA, section 101(a)(43)(A) was limited to murder. The terms rape and sexual abuse of a minor were added in an expansion of the definition of what constitutes an aggravated felony and an overall increase in the severity of the consequences for aliens convicted of crimes. See, e.g., IIRIRA §§ 301(b), 110 Stat. at 3009-575 (codified as section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i) (Supp. II 1996)...”Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (1999). At pp. 992-993.The District Judge who dismissed Bontia’s case noted the following: “...... Section 321(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) makes clear that the definition of aggravated felony, including sexual abuse of a minor, applies retroactively. Pub. L. No. 104-208, 110 Stat. 3009 (September 30, 1996). In this respect, Section 321(b) states that the definition of aggravated felony “applies regardless of whether the conviction was entered before, on, or after September 30, 1996.” IIRIRA, § 321(b), 110 Stat. at 3009-628. ....”.Specifically within the naturalization context, there is a specific regulation thatdeals with “good moral character” (GMC). More on the point at issue for Bontia: 8 CFR § 316.10 Good moral character. (b) Finding of a lack of good moral character. * * * * * (1) An applicant shall be found to lack good moral character, if the applicant has been: * * * * * (ii) Convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. Page 3 of 9
  4. 4. The above effective date listed in that regulation was placed there in response tostatutory changes made by the Immigration Act of 1990 (IMMACT 90). Thatregulation may be ultra vires in relation to the later changes made by IIRIRA orsimply obsolete and void. I believe that it is however since it was irrelevant toBontia based on the later date of his conviction is was not addressed. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (1999)Held: The offense of indecency with a child by exposure pursuant to section21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse of a minorand is therefore an aggravated felony within the meaning of section 101(a)(43)(A)of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. II1996). Court Response to Rodriguez-Rodriguez1. U.S. v. Zavala-Sustaita, 214 F.3d 601(5th Cir. 2000) - upheld2. Guerrero-Perez v. INS, 242 F.3d 727(7th Cir. 2001) - upholds (conviction wasfor "criminal sexual abuse" under Illinois law)3. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) - cites with approval (conviction wasfor indecent assault and battery on a child under 14 under Mass. law)4. Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) - cites with approval5. Mugalli v. Ashcroft, 258 F.3d 52 (2nd Cir. 2001) - accords deference”6. Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001) -Cites with approval(conviction in N.C. for crime of taking indecent liberties with a minor)7. Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005) - cites with approval (Illinoisconviction for soliciting a minor)8. Loeza-Dominguez v. Gonzales, 428 F.3d 1156 (8th Cir. 2005) - cites withapproval Boards "broad construction" of term "child abuse"9. Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) - does not accorddeference10. Restrepo v. U.S. Att’y Gen., 617 F.3d 787 (3rd Cir. 2010)-accords Chevrondeference. Page 4 of 9
  5. 5. 11. Ganzhi v. Holder, —F.3d—, 2010 WL 3465604 (2nd Cir. 2010)- cites12. Oouch v. Holder, —F.3d—, 2011 WL 257336 (2nd Cir. 2011) - affirmsChevron deference accorded in prior decision; declines to concur w/ 9th Cir. Matter of Crammond, 23 I&N Dec. 9 (2001) held:(1) A conviction for “murder, rape, or sexual abuse of a minor” must be for afelony offense in order for the crime to be considered an aggravated felony undersection 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(A) (Supp. V 1999).(2) In determining whether a state conviction is for a felony offense forimmigration purposes, the Board of Immigration Appeals applies the federaldefinition of a felony set forth at 18 U.S.C. § 3559(a)(5) (1994).Matter of Crammond, 23 I&N Dec. 179(2001) vacated the earlier decision on atechnicality—Respondent had departed and therefore, his Motion was deemedwithdrawn as of date of departure. It was bloated technicality that failed to addressINS’ legal arguments. The BIA found that it lacked jurisdiction to enter the firstdecision and in doing so evading a discussion of or decision on the merits andarguments advanced by the Service (INS). Court Response to CrammondHowever, one court did have a chance to expressly address the lousy reasoning viathe case of Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001)2 – that courtrejected the reasoning expressed in Crammond I (holds it could be misdemeanoroffense). Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001):In Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001), we determined that Jose F.Guerrero-Perezs misdemeanor conviction for sexual abuse of a minor constitutedan aggravated felony under sec. 101(a)(43)(A) of the Immigration and NationalityAct ("INA"), 8 U.S.C. sec. 1101(a) (43)(A). Shortly after we issued our opinion,the Board of Immigration Appeals ("BIA") in an en banc decision, In re RobinJuraine Crammond, 2001 BIA LEXIS 3, 23 I & N. Dec. 9, found that amisdemeanor conviction for sexual abuse of a minor is not an aggravated felonyunder 8 U.S.C. sec. 1101(a)(43)(A). Guerrero1 now requests that we reconsider ourview on this matter in light of the BIAs disposition.2 See http://law.justia.com/cases/federal/appellate-courts/F3/256/546/526423/ Page 5 of 9
  6. 6. DiscussionOur task is to determine whether we should accept the BIAs approach as outlinedin Crammond or affirm the position that we articulated in Guerrero- Perez. Webegin by recognizing that a majority of the Board Members (11 out of the 20)concur that for a person to be considered an aggravated felon under 8 U.S.C.sec.1101(a)(43)(A), which encompasses murder, rape, or sexual abuse of a minor, anindividual must commit a felony offense. To determine whether someone hascommitted a felony, the majority said that one should look to the federal definitionof a felony. This was about all that the majority was able to agree upon, as thereexists no consensus among them regarding how to reach the aforementionedoutcome. ........[The Seventh Circuit then parsed the multiple views expressed by (1) the majority,(2) the concurring and (3) dissenting opinions.]........ By the narrowest of margins, a majority of the Board Members decided toreject the forceful position of the dissent in favor of the rule that an individual mustcommit a felony offense as so defined by federal law in order for his or herconduct to fall within the parameters of 8 U.S.C. sec. 1101(a) (43)(A).We cannot adopt the approach that a splintered majority of the Board inCrammond supports. None of the positions articulated by the various BoardMembers who make up the majority present statutory interpretations that we havenot considered previously. Thus, we respectfully conclude that this case does notwarrant vacating our decision in Guerrero-Perez.2ConclusionFor the foregoing reasons, we DENY Guerreros petition for rehearing.FOOTNOTES (7th Cir. 2001):1 The petitioner identified himself as Jose Guerrero at his immigration hearing.We therefore will refer to him as Guerrero rather than Guerrero-Perez. The detailsof Guerreros case can be found in Guerrero-Perez, 242 F.3d at 728-31.2 It is worth to note that we are not the sole Circuit to disagree with the BIAsposition on this matter. The Eleventh Circuit has interpreted 8 U.S.C. sec.1101(a)(43)(A) in the criminal context to encompass misdemeanor stateconvictions. United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001). Page 6 of 9
  7. 7. EDITORIAL NOTE: The Eleventh Circuit was considering the same basic issueas the BIA simultaneously. Their Opinion was issued March 23rd which was theday following the first Matter of Crammond which was issued on March 22nd.United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001):A federal grand jury indicted appellant Hilarion Marin-Navarette ("Marin-Navarette") for violating 8 U.S.C. 1326, which prohibits an alien who haspreviously been deported from re- entering the United States without the consentand permission of the United States Attorney General. Authorities deported Marin-Navarette twice - once following a drug conviction and a second time after hisconviction for Attempted Child Molestation in the Third Degree. Marin-Navarettepresents an interesting issue for our review: whether his prior conviction forAttempted Child Molestation in the Third Degree qualifies as an aggravated felonyunder 8 U.S.C. 1101(a)(43)(A), which triggers a 16- level increase in his baseoffense level. See U.S.S.G. 2L1.2. For the reasons that follow, we hold that it does................ Marin-Navarette engaged in flagitious conduct when he used cocainewith a 14 year-old girl, then forced her to the ground, got on top of her and insertedhis finger into her vagina. This conduct meets Congresss intended definition of"aggravated felony."............... Marin-Navarette argues that because his offense is a misdemeanor, itcannot be an "aggravated felony." We disagree with this argument and so held inUnited States v. Christopher, 239 F.3d 1191 (11th Cir.2001). In Christopher, weadopted the reasoning of our sister circuits and held that some misdemeanors canqualify as "aggravated felonies." Id. at 1193. We agreed with the third circuit inUnited States v. Graham, 169 F.3d 787 (3rd Cir.), cert. denied, 528 U.S. 845, 120S.Ct. 116 (1999) that Congress was defining a term of art when it used the term"aggravated felony." Id. at 1194. Moreover, we noted that Congresss failure tospecify a term of imprisonment evinces its intent to include misdemeanors withinthis category.The few cases discussed above are not the only cases on this topic however, thisessay will not drone on endlessly. Additional issues come into play which arebeyond the scope of the present discussion and are better left alone for now. Matter of Blake, 23 I&N Dec. 722 (BIA 2005) 3 Held: An alien who is removable on the basis of his conviction for sexual abuse ofa minor is ineligible for a waiver under former section 212(c) of the Immigrationand Nationality Act, 8 U.S.C. § 1182(c) (1994), because the aggravated felonyground of removal with which he was charged has no statutory counterpart in the3 See: http://www.justice.gov/eoir/vll/intdec/vol23/3509.pdf Page 7 of 9
  8. 8. grounds of inadmissibility under section 212(a) of the Act, 8 U.S.C. § 1182(a)(2000). Matter of Meza, 20 I&N Dec. 257 (BIA 1991), distinguished. Court Response to Blake1. Caroleo v. Gonzales, 476 F. 3d 158 (3d Cir. 2007)-cites with approval2. Avilez-Granados v. Gonzales, 481 F. 3d 869 (5th Cir. 2007)-follows3. Vo v. Gonzales, 482 F. 3d 363 (5th Cir. 2007)-cites with approval4. Blake v. Carbone, 489 F. 3d 88 (2d Cir. 2007): reversed. Rejected Board’s“similar language” approach to determining statutory counterpart; holds ifoffense would render an LPR excludable, than 212(c) is available indeportation proceedings.5. Ikharo v. Holder, —F.3d—, 2010 WL 3001756 (6th Cir. 2010) - upheldBoard’s ability to apply outside of 2d Cir.6. Rangel-Zuazo v. Holder, —F.3d—, 2011 WL 285214 (9th Cir. 2011) - upheldBIA’s retroactive application, as holding did not constitute a change in law.7. Paulo v. Holder, 2011 WL 1663572 (9th Cir. 2011) - discussed withoutultimately ruling on validity.Lastly, the U.S, Supreme Court recently weighed in on a different issue also foundin various cases that touch on the “sexual abuse of a minor” issue. Blake is amongthe cases discussed re: INA § 212(c) relief and the “comparable ground” analysis.Keep reading. Judulang v. Holder, Attorney General, 565 U. S. ____ (2011)4 No. 10–694. Argued October 12, 2011—Decided December 12, 2011Here is an excerpt from the Syllabus: This case concerns the BIA’s method for applying §212(c) in the deportation context. The BIA’s approach, known as the “comparable grounds” rule, evaluates whether the charged deportation ground has a close analogue in the4 See: http://www.supremecourt.gov/opinions/11pdf/10-694.pdf Page 8 of 9
  9. 9. statute’s list of exclusion grounds. If the deportation ground consists of a set of crimes “substantially equivalent” to the set making up an exclusion ground, the alien can seek §212(c) relief. But if the deportation ground covers different or more or fewer offenses than any exclusion ground, the alien is ineligible for relief, even if the alien’s particular offense falls within an exclusion ground. Petitioner Judulang, who has lived continuously in the United States as a lawful permanent resident since 1974, pleaded guilty to voluntary manslaughter in 1988. After he pleaded guilty to another crime in 2005, DHS commenced a deportation action, charging him with having committed an “aggravated felony” involving “a crime of violence” based on his manslaughter conviction. The Immigration Judge ordered Judulang’s deportation, and the BIA affirmed, finding Judulang ineligible for §212(c) relief because the “crime of violence” deportation ground is not comparable to any exclusion ground. The Ninth Circuit, having previously upheld the BIA’s comparable grounds rule, denied Judulang’s petition for review.Held: The BIA’s policy for applying §212(c) in deportation cases is “arbitrary and capricious” under the Administrative Procedure Act, 5 U. S. C. §706(2)(A). Pp. 9–21. ........ Page 9 of 9