February 25, 2017

HB 17-1134: Creating Civil Remedy Against Elected Officials in Sanctuary Jurisdictions

On January 30, 2017, Rep. Dave Williams and Sen. Vicki Marble introduced HB 17-1134, “Concerning Holding Colorado Government Accountable for Creating Sanctuary Jurisdiction Policies.”

The bill is known as the ‘Colorado Politician Accountability Act’.

The bill includes a legislative declaration that states that addressing sanctuary jurisdictions is a matter of statewide concern and that makes findings about how sanctuary policies are contrary to federal law and state interests.

The bill creates a civil remedy against the state or a political subdivision of the state (jurisdiction) and against its elected officials for creating sanctuary policies. The bill also creates a crime of rendering assistance to an illegal alien that can be brought against an elected official for creating a sanctuary jurisdiction.

An elected official is responsible for the creation of a sanctuary jurisdiction if the elected official votes in favor of imposing or creating a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, fails to take steps to try to change a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, or is a county sheriff who imposes or enforces a policy that allows the jurisdiction to operate as a sanctuary jurisdiction in a county in which the elected officials have not voted to impose or create a sanctuary jurisdiction.

The bill allows any person who claims that he or she is a victim of any crime committed by an illegal alien who established residency in a sanctuary jurisdiction to file a civil action for compensatory damages against a jurisdiction and against the elected officials of the jurisdiction who were responsible for creating the policy to operate as a sanctuary jurisdiction. Notwithstanding the protections of the ‘Colorado Governmental Immunity Act’, the jurisdiction and its officials who are responsible for creating a sanctuary jurisdiction are civilly liable for damages if the person who engaged in the criminal activity:

  • Is determined to be an illegal alien;
  • Had established residency in the sanctuary jurisdiction; and
  • Is convicted of the crime that is a proximate cause of the injury to a person or property.

The maximum amount of compensatory damages for injury to persons is $700,000 per person or $1,980,000 for injury to 2 or more persons; except that no person may recover in excess of $700,000. The maximum amount of compensatory damages for injury to property is set at $350,000 per person or $990,000 for injury to multiple persons; except that no person may recover in excess of $350,000.

The bill defines a ‘sanctuary jurisdiction’ as a jurisdiction that adopts a law, ordinance, or policy on or after the effective date of this bill that prohibits or in any way restricts an official or employee of the jurisdiction from:

  • Cooperating and complying with federal immigration officials or enforcing federal immigration law;
  • Sending to or receiving from or requesting from federal immigration officials information regarding the citizenship or immigration status, lawful or unlawful, of an individual;
  • Maintaining or exchanging information about an individual’s immigration status, lawful or unlawful, with other federal agencies, state agencies, or municipalities;
  • Inquiring about an individual’s name, date and place of birth, and immigration status while enforcing or conducting an official investigation into a violation of any law of this state;
  • Continuing to detain an individual, regardless of the individual’s ability to be released on bail, who has been identified as an illegal alien while in custody for violating any state law; or
  • Verifying the lawful presence and eligibility of a person applying for a state or local public benefit as required by state and federal law.

The bill sets forth the requirements for determining when an illegal alien has established residency in a sanctuary jurisdiction. An ‘illegal alien’ is defined as a person who is not lawfully present within the United States, as determined by federal immigration law.

The governing body of any jurisdiction is prohibited from adopting a law, ordinance, rule, policy, or plan or taking any action that limits or prohibits an elected official, employee, or law enforcement officer from communicating or cooperating with an appropriate public official, employee, or law enforcement officer of the federal government concerning the immigration status of an individual residing in the state. The governing body of a jurisdiction is required to provide written notice to each elected official, employee, and law enforcement officer of the jurisdiction of his or her duty to communicate and cooperate with the federal government concerning enforcement of any federal or state immigration law. The governing body of any jurisdiction in this state is required to annually submit a written report to the department of public safety (department) that the jurisdiction is in compliance with the cooperation and communication requirements. If the department does not receive those written reports, the department is required to provide the name of that jurisdiction to the state controller.

A law enforcement officer of a jurisdiction who has reasonable cause to believe that an individual under arrest is not lawfully present in the United States shall immediately report the individual to the appropriate U.S. immigration and customs enforcement office (ICE) within the department of homeland security. The governing body of any jurisdiction is required to report annually to the department on the number of individuals who were reported to ICE by law enforcement officers from that jurisdiction. The department is directed to compile and submit annual reports on compliance to the general assembly and to the state controller. The state controller is required to withhold the payment of any state funds to any jurisdiction that is found by the department to have failed to comply with these reporting requirements. The state controller shall withhold funds until the department notifies the state controller that the jurisdiction is in compliance.

The bill creates the crime of rendering assistance to an illegal alien through a sanctuary jurisdiction, which is a class 4 felony. A person who is an elected official of a jurisdiction commits rendering assistance to an illegal alien through a sanctuary jurisdiction if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of illegal aliens within the jurisdiction:

  • He or she was responsible for creating a sanctuary jurisdiction in the jurisdiction to which the official is elected; and
  • When, as a result of the protection afforded by a sanctuary jurisdiction, a third person engages in criminal activity and the third person:
  • Is an illegal alien as legally defined by federal immigration law;
  • Had established residency in the sanctuary jurisdiction that was created by the official; and
  • Has been convicted of a crime that caused injury to a person or to property.

A person who has knowledge of a crime committed by an illegal alien as a result of the creation of a sanctuary jurisdiction may file an affidavit with the attorney general or with a district attorney outlining the crime and requesting that charges be brought or that a grand jury be impaneled. The attorney general or district attorney shall investigate and respond in writing with his or her decision to the person filing the affidavit within 49 days. If the attorney general or district attorney declines to bring charges or impanel a grand jury, the person may file a second affidavit directly with the applicable court.

The bill includes a severability clause and a provision that states that the bill is not subject to judicial review.

The bill takes effect upon passage and applies to acts or omissions occurring on or after said date.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs and Judiciary committees. It is scheduled to be heard in the State, Veterans, and Military Affairs committee on February 22, 2017, at 1:30 p.m.

Top Ten Programs and Homestudies of 2016: The Best of the Rest

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection we are featuring the Best of the Rest: the top programs and homestudies in the areas of law not previously covered, including construction law, disability law, agricultural law, water law, natural resources law, immigration law, and marijuana law. Although these practice areas are varied, the homestudies and programs featured below are top-notch. For practitioners in these areas of law, visit cle.cobar.org/Practice-Area to find more programs and homestudies in your area of practice, and visit cle.cobar.org/Books to search our selection of books.

Construction Law — Residential Construction Defect Law 2016: Intermediate to Advanced Class
The program will highlight significant construction defect liability, damages and insurance developments occurring over the past two years and described in the Fifth Edition of Residential Construction Law in Colorado (CLE in Colo., 2015) written by Ronald M. Sandgrund, Scott F. Sullan and Leslie A. Tuft. A copy of the book is included as part of the course materials. No written materials other than a list of cases and statutes discussed will be supplied. This program is an advance program and is not intended to provide a general overview of construction defect law or practice. Each Homestudy includes a PDF copy of the CLE book, Residential Construction Law in Colorado, 5th Edition. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

Immigration Law — Immigration Law 2016
Attend this program and you will receive practical training for representing individuals in immigration proceedings, including juveniles and survivors seeking asylum and other humanitarian relief. Topics covered include: Immigration Law 101, Special Immigrant Juvenile Status, U Visas, T Visas, and VAWA, Cancellation of Removal and Trial Advocacy Skills in Immigration Court, Asylum Law, and Model Asylum Hearing. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

Water Law — Water Law 101 in 2016
This is the eighth in a series of courses related to Colorado water law and administration. This particular course will introduce you to the basic legal framework governing Colorado water law, rights, and administration as of 2016. You will become familiar with court cases, matters and issues critical to your understanding of water and water law in Colorado. You will learn about Colorado’s different types of water rights, how they are administered, the role of the State and Division Engineers, and what is required for changes of water rights. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

Environmental Law — Colorado’s Future Energy Economy: Legal Landscape
Attend this program and hear perspectives of officials and leaders at national and state and federal government levels on the direction of Colorado’s energy industry. Plus, gain invaluable insights on such from environmentalists, the energy industry, academia, and private firm practitioners. Take advantage of this unique opportunity to learn about the latest developments in the legal landscape behind Colorado’s energy and natural resources industries. Attend this program and personally unravel the issues with the experts. AND, at the same time, you will sharpen your practice skills and expand your knowledge to better serve your clients! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

Natural Resources Law — Oil, Gas, and Mining: Current Legal Issues
This Oil, Gas and Mining Law program is the one to attend to get up to speed on energy issues currently affecting Colorado and the West. You will leave this seminar with a better understanding of the latest regarding pertinent litigation, regulations and solutions for quieting title, financing, and distressed companies. Taught by experts, this program will provide you with an opportunity to network with colleagues and experts, and to catch up on hot topics in the energy law arena. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 9 general credits, including 1 ethics credit.

Disability Law — Social Security Disability: Advanced Practice
Your distinguished panel of Judges, ODAR and Colorado Disability Determination Services Officials, a vocational expert, and seasoned private firm SSDI practitioners will provide you with the latest information on: Changes, Statistics, and Findings of the Colorado Disability Determination Services Office, What’s Happening in Region 8 and at Headquarters – Office of Disability Adjudication and Review?, State of the Denver Regional Office of Disability Adjudication and Review, Attorney Fee Agreements and Fee Petitions, How-to’s of Vocational Expert Examination, Perspectives of the Appeals Council, Appeals Council and Federal District Court Arguments, Case Law and Rulings, and How to File in Federal Court and Win! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits.

Agricultural Law — Rural Land Transactions: Contract Issues
Whether you represent the buyer or seller of ranch land, cattle, timber or recreational ranches, farms or other rural lands, this program is for you! Attend and your faculty of seasoned real estate attorneys and brokers will guide you through the nuances of rural land transactions, and help you avoid mistakes and potential pitfalls. You will receive straightforward guidance on Buyer Entity Pros and Cons, Federal Grazing Permits, Water, Mineral and Wind Rights, Growing Crops, and much more. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits.

Marijuana Law — Enforcing Cannabis Contracts, Including the Use of Arbitration in the Cannabis Industry
A key fear in the cannabis industry is the extent to which cannabis-related contracts are enforceable. This goes beyond contracts for the sale of cannabis itself and may include any number of legal instruments that touch a cannabis business. Although a number of recent court decisions in the Colorado state and federal courts indicate a trend toward the enforcement of cannabis-related contracts, and these cases will be discussed, many doubts remain regarding the enforceability of cannabis-related contracts. Arbitration provides a unique forum for the resolution of cannabis-related disputes that may provide greater legal certainty and enforceability. This CLE presentation covers the nuts and bolts of arbitration law relevant to the enforcement of purportedly illegal contracts, and goes beyond to identify techniques counsel should consider when drafting arbitration clauses for cannabis businesses and their partners. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

Courthouse of the U.S. District Court Closed on Friday, December 9, 2016

The U.S. District Court for the District of Colorado announced a courthouse closure. On Friday, December 9, 2016, from 12:45 to 6 p.m., the courthouse will be closed for business due to a law enforcement training exercise. The Alfred A. Arraj Courthouse will be closed to the public. The Byron G. Rogers Courthouse will remain open, but no court business will be conducted. Court business in the Durango and Grand Junction courthouses will be conducted as scheduled. All electronic systems to include CM/ECF and PACER will remain in operation during this time period. For more information, click here.

Colorado Gives: Rocky Mountain Immigrant Advocacy Network Promotes a More Humane Immigration System

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

rmianThe Rocky Mountain Immigrant Advocacy Network (RMIAN) is a nonprofit legal services organization that believes justice for immigrants means justice for all. RMIAN provides life-changing legal services to vulnerable immigrant children in Colorado, and to adults in immigration detention. Without this assistance from RMIAN’s attorneys, RMIAN’s child clients and individuals in detention would be forced to face immigration court hearings entirely on their own, an injustice by any standard. A national study, headed by a federal judge, found that immigrants with lawyers are five times more likely to win their cases than those without. For many, a loss in immigration court means deportation and a forced return to the persecution, abuse, or other violence from which they fled. For many others, it signifies a permanent and heartbreaking separation from spouses, partners, children, siblings, and other loved ones.  RMIAN’s programs are dedicated to ensuring legal representation, due process, and support.

RMIAN’s Detention Program has a daily presence at the immigration detention center in Aurora, Colorado, where over 900 individuals are detained on civil immigration charges every day. RMIAN’s attorneys provide know-your-rights presentations before detained individuals have to go before the immigration judge for the first time, assist with applications and case preparation, refer cases to pro bono attorneys, represent clients, and provide social service support for the most vulnerable detainees. Recent RMIAN cases involving clients in detention include a man from Somalia granted asylum on the basis of his political opinion; a longtime lawful permanent resident granted a second chance by the immigration judge to stay with his family in Colorado; a young man from Honduras granted asylum based on the persecution he would face because of his sexual orientation; and numerous clients who won bond reductions with RMIAN’s representation. In 2015, RMIAN’s Detention Program provided 209 know-your-rights presentations to over 1,700 individuals in detention, conducted over 800 individual intakes, held 33 workshops for over 100 individuals fighting their cases on their own, and provided intensive individual assistance to over 500 detainees. In addition, RMIAN’s staff attorneys and volunteer attorneys represented 59 clients in their complete immigration court cases.

RMIAN’s Children’s Program provides immigration legal services to children through Colorado. Recent clients include a young man who was granted a T visa based on being a victim of human trafficking; several children who won Special Immigrant Juvenile Status as a result of being abused, abandoned or neglected; several young crime victims and their family members who were granted U Visas; and numerous youth who were granted Deferred Action for Childhood Arrivals. In the past several years, RMIAN’s Children’s Program has seen an exponential increase in its representation of unaccompanied children who fled horrors in their home countries and who are now seeking asylum and other immigration relief before the Denver Immigration Court. In 2015, RMIAN’s Children’s program directly represented 288 children, conducted 658 intakes and consultations, and referred 205 cases to pro bono attorneys. By providing free legal services to immigrant children, as well as outreach efforts to community partners, RMIAN educates children and their families on the rights and protections to which they are entitled under federal immigration law and works to ensure that Colorado’s communities are safe.

In addition to direct legal services, RMIAN provides community education and training about immigration law, particularly as it relates to individuals in immigration detention and immigrant children. In 2015, RMIAN gave 66 presentations to 2,210 community members.

Please consider making a donation to RMIAN today to help us fulfill our values statement, “We believe that justice for immigrants means justice for all.” Donations may be mailed directly to RMIAN at 3489 West 72nd Avenue, Suite 211, Westminster, CO 80030 or via RMIAN’s website at www.rmian.org  RMIAN is participating in Colorado Gives Day on Tuesday, December 6, 2016.

Colorado Court of Appeals: Facts, If True, Would Establish Justifiable or Excusable Neglect

The Colorado Court of Appeals issued its opinion in People v. Torres on Thursday, November 17, 2016.

Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.

Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.

Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.

On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.

Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Colorado Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.

The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.

Summary provided courtesy of The Colorado Lawyer.

District of Colorado Local Rules Amended, Effective December 1, 2016

The U.S. District Court for the District of Colorado has adopted changes to its local rules, effective December 1, 2016. The changes include a new Rule 2.1, “Forms of Action,” and an entire section on Local Patent Rules.

New Rule 2.1 clarifies that a proceeding not defined as a civil action under F.R.C.P. 2 should be filed as a civil miscellaneous (“mc”) or registered judgment (“rj”) action only if included in the List of Miscellaneous Cases. Rule 5.3 was amended by the addition of a subparagraph (c) dealing with written discovery requests or responses. The subparagraph specifies that other than in prisoner cases or as otherwise ordered, discovery requests shall be submitted by email or in other non-paper form. There were several other minor changes to various rules.

Section III on the Local Patent Rules is a comprehensive section dealing with the handling of patent claims in the U.S. District Court. The local rules are to be cited as D.C.Colo.LPtR _. The rules are to be known as the Local Rules of Practice of the United States District Court for the District of Colorado – Patent Rules. The rules specify that the civil local rules apply except as inconsistent with the patent rules. Topics addressed in the local patent rules include scheduling conferences and orders, discovery and confidentiality, infringement, invalidity, declaratory judgment, reliance on counsel’s opinion, claim construction, final infringement and invalidity contentions, and word limits. The remaining sections were renumbered accordingly.

Comments about the local rules may be submitted to the Advisory Committee on the Local Rules via email. For more information about the local rule changes, click here. For a redline of the changes, click here.

Tenth Circuit: Residual “Crime of Violence” Definition in INA is Unconstitutionally Vague

The Tenth Circuit Court of Appeals issued its opinion in Golicov v. Lynch on Monday, September 19, 2016.

Constantine Fedor Golicov, a lawful permanent resident, was convicted in Utah state court of failing to stop at a police officer’s command, a third-degree felony. He was sentenced to five years’ imprisonment. While serving his sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his Utah conviction constituted an aggravated felony under the Immigration and Nationality Act (INA). Golicov denied the charge and moved to terminate removal. An immigration judge agreed with Golicov, denying the charge and terminating removal proceedings. DHS appealed, and the BIA reversed the immigration judge and remanded to the IJ to “explore Golicov’s potential eligibility for relief.”

On remand, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). The IJ rejected his argument on remand, and the BIA affirmed the IJ. Golicov appealed to the Tenth Circuit.

The Tenth Circuit noted that the Due Process Clause of the Fifth Amendment requires specificity in order to properly apprise ordinary people of the conduct that is prohibited. The government initially argued that because a removal proceeding is civil, the criminal law holding in Johnson should not apply. The Tenth Circuit disagreed, noting that because deportation proceedings can strip non-citizens of their rights, statutes that impose the penalty of deportation are subject to Fifth Amendment vagueness challenges.

The Tenth Circuit reviewed Johnson‘s holding that the residual clause in the Armed Career Criminal Act was void for vagueness, and noted the similarity between the ACCA residual clause and the INA’s residual definition of “crime of violence.” The Tenth Circuit remarked that two circuits have addressed the identical issue and both determined that the INA residual definition was void for vagueness, and two other circuits addressed the issue in a criminal context and also determined the INA’s definition was unconstitutionally vague. The Tenth Circuit agreed with its sister circuits that the INA’s residual “crime of violence” definition is void for vagueness.

The Tenth Circuit vacated the order of removal and remanded to the BIA for further proceedings.

Nancy Elkind Honored with Colorado Lawyers Committee Outstanding Sustained Contribution Award

NancyElkindOn Monday, May 23, 2016, the Colorado Lawyers Committee held its annual awards luncheon at the Marriott Denver City Center. Nancy B. Elkind, founding partner of Elkind Alterman Harston PC, received the organization’s Outstanding Sustained Contribution Award. Ms. Elkind is on the Board of Directors for the Colorado Lawyers Committee, and she was chair of the committee from 2011 to 2013. She contributes extensively to her community through her work with the Colorado Lawyers Committee, helping the organization provide high-impact pro bono work while advocating, negotiating, and litigating for children, the poor, and other disadvantaged groups. She has practiced immigration law for over 30 years, and has provided counsel and guidance to hundreds of immigrant families and individuals, as well as to employers that are seeking to hire the “best and the brightest.” Ms. Elkind is also the managing editor of CBA-CLE’s treatise, Immigration Law for the Colorado Practitioner, and she also lectures frequently on topics related to immigration law.

AaronBoscheeAaron A. Boschee, senior associate at Squire Patton Boggs, received the Colorado Lawyers Committee’s Individual of the Year Award. Mr. Boschee is the Colorado Lawyers Committee Task Force Chair, and lead class counsel for the Taylor Ranch Litigation, through which he coordinates the pro bono efforts of over 30 lawyers at numerous law firms throughout the region. Mr. Boschee practices in the areas of commercial litigation, arbitration, and debt restructuring, focusing on debtor-creditor disputes, asset recovery and loss mitigation, real estate-based lending and litigation, creditor-lien priority, shareholder and director disputes, and fraud. He received his undergraduate degree from Minnesota State University and his law degree from the University of Denver Sturm College of Law.

SchmidtLaurenEBrownstein Hyatt Farber Schreck, LLP, received the Committee’s Law Firm of the Year Award. The Law Firm of the Year Award is given to firms whose attorneys and staff made significant pro bono contributions to Lawyers Committee projects during 2015. Lauren Schmidt, BHFS’s pro bono partner, and Martha Fitzgerald are members of the Colorado Lawyers Committee’s Board of Directors and Schmidt serves on the Executive Committee. Tenley Oldak serves on the Leadership Board of the Colorado Lawyers Committee Young Lawyers Division. Under Ms. Schmidt’s leadership, BHFS’s pro bono program has increased dramatically, and the firm is a signatory to the national Pro Bono Institute’s Law Firm Pro Bono Challenge. The firm has pledged to average 50 hours of pro bono work per lawyer per year.

Congratulations to all the honorees of the Colorado Lawyers Committee Awards.

Tenth Circuit: Possession of Stolen Property is Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Obregon de Leon v. Lynch on Tuesday, December 22, 2015.

Cristian Eduardo Obregon de Leon was a native citizen of Guatemala who entered the United States without inspection in September 1997. In 2007, he adjusted his status to that of a lawful permanent resident (LPR). In 2011, he was charged with and pleaded guilty to four offenses in Oklahoma state court: (1) one count of operation of a chop shop, (2) four counts of possession of vehicles with altered identification numbers, (3) four counts of possession of a stolen vehicle, and (4) two counts of receipt of stolen property.

In January 2013, the Department of Homeland Security filed a Notice to Appear, charging that Mr. Obregon was removable for committing a crime involving moral turpitude (CIMT). Mr. Obregon admitted the factual allegations at hearing but denied removability, arguing his crimes did not qualify as CIMTs. The Immigration Judge ultimately found that all four crimes counted as CIMTs and concluded he was not eligible for waiver relief. Mr. Obregon appealed, and a single BIA judge dismissed his appeal, concluding that the stolen property offenses counted as CIMTs because they required a mens rea of knowing the property was stolen.

Mr. Obregon appealed to the Tenth Circuit, arguing none of his convictions counted as CIMTs and that he should be eligible for waiver because he adjusted to LPR status after entering the United States. The Tenth Circuit first evaluated the term “crime involving moral turpitude,” and determined it was quintessentially ambiguous. However, following several other circuits and BIA precedent, the Tenth Circuit found that possession of stolen property satisfies the scienter element to create a CIMT. Mr. Obregon argued there must be intent to permanently deprive the rightful owner of the property, but the Tenth Circuit disagreed, finding Mr. Obregon’s “application of legal imagination” did not suffice to show that the requisite scienter was permanent deprivation. The Tenth Circuit affirmed the BIA’s determination that Mr. Obregon’s possession of stolen property crimes were crimes involving moral turpitude.

However, as to Mr. Obregon’s argument that he was eligible for waiver because he adjusted his status to that of LPR after entering the United States, the Tenth Circuit agreed. Following recent Tenth Circuit and BIA precedent, the Tenth Circuit ruled that the plain language of the waiver statute barred application for waiver only for those who received LPR status before or upon entering the United States.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Conviction for Robbery under California Penal Code Qualifies as Crime of Violence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Castillo on Tuesday, December 15, 2015.

Wilber Castillo was convicted in California in 2004 of second-degree robbery, and was removed from the United States in 2007. In 2009, he reentered the United States without inspection. In 2011, he was convicted of shoplifting and in 2014 he was convicted of disorderly conduct. He was interviewed by ICE after his 2014 arrest, and based on his admission, Castillo was charged with illegal reentry under 18 U.S.C. § 1326. The base offense level for illegal reentry is 8 but because of his 2004 conviction for robbery, which is classified as a crime of violence, his total offense level was 24, resulting in a Guidelines range of 46-57 months’ imprisonment. Castillo objected to the application of the crime of violence enhancer. The district court ruled Castillo’s prior conviction was a crime of violence and the offense level was correct, but nevertheless varied downward and sentenced Castillo to 24 months’ imprisonment. Castillo appealed.

The Tenth Circuit examined California Penal Code § 211 to determine whether a conviction under that section qualifies as a crime of violence for purposes of Guidelines § 2L1.2. Castillo argued that because § 211 considers threats to property as crimes of violence, it does not substantially correspond with the generic definition of robbery. The government conceded that including threats to property is a minority position, but argued that the crimes covered by § 211 outside the generic definition of robbery fell within the generic definition of extortion, which is also considered a crime of violence. The Tenth Circuit agreed.  Following the Ninth Circuit’s reasoning in another case that evaluated whether a conviction under § 211 qualified as a crime of violence, the Tenth Circuit found that because the elements of § 211 that do not correspond to the generic definition of robbery are encompassed in the generic definition of extortion, and both crimes are considered crimes of violence, the sentencing enhancer applied.

The Tenth Circuit affirmed the district court.

Tenth Circuit: H-2A Sheepherders Must Primarily Tend Sheep in Pastures

The Tenth Circuit Court of Appeals issued its opinion in Saenz Mencia v. Allred on Monday, December 14, 2015.

German Wilmer Saenz Mencia, a citizen of Peru, came to Utah to work on the Allreds’ sheep ranch under an H-2A sheepherder visa, and was paid $750 per month plus room and board, the minimum for sheepherders. He brought claims in district court, arguing that the work he performed did not qualify as sheepherding and instead he was entitled to the hourly wage for ranch hands. Mr. Saenz asserted claims in contract and quantum meruit for the lost wages and FLSA minimum wage claims against the Allreds. The district court rejected Mr. Saenz’s claims, denied his summary judgment motion, and granted summary judgment to the Allreds. Mr. Saenz appealed.

The Tenth Circuit first analyzed the H-2A definition of sheepherding and the FLSA definition of range production of livestock. The Tenth Circuit determined that to fit the definitions, Mr. Saenz must have spent over half of his time on the range tending to the sheep and must have extremely variable hours, described as “the constant surveillance of livestock that graze and reproduce on range lands.” The Tenth Circuit found that there was no plausible reading of the definitions that would render Mr. Saenz a sheepherder. Mr. Saenz worked in the vicinity of ranch headquarters where the Allreds could see what he was doing and ask him to help with odd jobs. Mr. Saenz did work with sheep, but they did not graze; they were fed hay. The Tenth Circuit concluded that Mr. Saenz did not work on the range as contemplated by the definitions. The Tenth Circuit found further evidence in the fact that the Allreds and Mr. Saenz were easily able to approximate his hours, and that most of his jobs were incidental to sheepherding. The Tenth Circuit found that Mr. Saenz was a ranch hand, not a sheepherder.

The Tenth Circuit next examined the district court’s finding that Mr. Saenz’s claims were estopped. The district court found that because Mr. Saenz never complained of being underpayed while employed by the Allreds, he was estopped from bringing claims in court. The Tenth Circuit disagreed. The Allreds were employers of more than a dozen H-2A sheepherders, and had obtained the H-2A visas for their employers by vouching for the type of work they would do. The Tenth Circuit concluded the Allreds had both actual and constructive knowledge of the nature and location of Mr. Saenz’s work and rejected their equitable estoppel claim. The Tenth Circuit held that the Allreds had easy access to lawyers and were in the business of importing laborers, and they were therefore not entitled to equitable estoppel under Utah law.

The Tenth Circuit addressed each of the Allreds’ six alternative grounds on which they asked the court to affirm and found none convincing. The Tenth Circuit reversed the district court’s grant of summary judgment to the Allreds and directed it to grant summary judgment to Mr. Saenz. The Tenth Circuit remanded for a calculation of damages and any other proceedings necessary.

Tenth Circuit: Violation of No-Contact Order Creates Grounds for Removal

The Tenth Circuit Court of Appeals issued its opinion in Cespedes v. Lynch on Thursday, November 19, 2015.

Jose Ramon Cespedes, a native and citizen of Venezuela, became a conditional lawful permanent resident of the United States in 2012. He was later charged with domestic violence in Utah state court, and in April 2013, that court issued a protective order against him. In November 2013, Cespedes pleaded guilty to an attempted violation of the protective order under its no-contact provision.

In May 2014, the Department of Homeland Security brought a charge to remove under 8 U.S.C. § 1227(a)(2)(E)(ii) against Cespedes for violation of the protection order. In a hearing before an immigration judge (IJ), Cespedes argued his conduct was not covered by § 1227. The IJ rejected his argument and ordered him removed from the United States. The BIA affirmed, relying on Matter of Strydom, 25 I. & N. Dec. 507, 510 (2011), in which Strydom was ordered removed for violating a no-contact order, and the BIA determined that no-contact orders “provided protection against threats of violence,” which could include contact in violation of a no-contact order.

On appeal to the Tenth Circuit, Cespedes conceded that Strydom would apply to his case but argued it was wrongly decided. The Tenth Circuit held that it was. The Tenth Circuit acknowledged that it owed the BIA deference under Chevron, and found that Cespedes’ contact in violation of the protective order violated § 1227.

Addressing Cespedes’ next argument, the Tenth Circuit found that “as purely a matter of English, the argument makes some sense,” but reading the language in context, the Tenth Circuit found that Congress would not have intended a state court to explain the purpose of each clause of a protective order. The Tenth Circuit recognized that all a state court would need to do is to find a violation of a protective order and the IJ and BIA would do the rest.

The Tenth Circuit affirmed the BIA and IJ.