October 23, 2016

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.

Tenth Circuit: Couple’s Conflicting Statements Indicate Sham Marriage for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Vladimirov v. Lynch on Tuesday, November 10, 2015.

Vladimir Vladimirov entered the United States in February 1996 as a nonimmigrant visitor authorized to stay until August 1996. However, he never left the United States. In 2005, he married Valentina Bakhrakh, a U.S. citizen. Bakhrakh filed an I-130 petition for alien relative to adjust Vladimirov’s immigration status, and Vladimirov filed an I-485 application for adjustment of status.

U.S. Customs and Immigration Services (USCIS) Officer Randall interviewed Bakhrakh and Vladimirov in March and May 2006 to ascertain the bona fides of their marriage. Based on their conflicting statements under oath about their address, how long they had lived there, the number of bedrooms and bathrooms at their address, Vladimirov’s marriage proposal, the type of ring, the wedding, their morning routine, and what they had done the previous weekend, Officer Randall requested a site visit, which occurred in April 2008 by USCIS Officer Gibson. Officer Gibson questioned Vladimirov about various items she found in home and he admitted they belonged to his ex-wife, not Bakhrakh. Vladimirov also admitted he and Bakhrakh did not have a valid marriage and had lied to make it appear as if they did. Officer Gibson met with Bakhrakh and her adult son the next day to discuss the evidence of the sham marriage and the consequences of falsifying an I-130. At the end of the interview, Bakhrakh withdrew the I-130 petition.

Based on Bakhrakh’s withdrawal of the I-130 and the evidence of the sham marriage, Officer Randall denied Vladimirov’s I-485 application. A Notice to Appear (NTA) was then filed against Vladimirov based on his misrepresentations and the sham marriage, and he requested a hearing in front of an immigration judge. The IJ determined the government had met its burden of establishing removability based on marriage fraud and ordered Vladimirov removed to Bulgaria. Vladimirov’s appeal to the BIA was dismissed.

Vladimirov appealed to the Tenth Circuit, arguing he was not given notice of the conduct forming the basis of the fraud charges, and the government’s evidence was insufficient to prove those charges. He also argued he was denied due process in the administrative proceedings. The Tenth Circuit denied each claim in turn. The Tenth Circuit found that the NTA clearly charged him with entering into a sham marriage with Bakhrakh, and fraud and willful misrepresentation in filing an I-485 based on the sham marriage. The marriage fraud charge was based on Vladimirov’s representation that he was in a bona fide marriage with Bakhrakh. The Tenth Circuit found that this provided a basis for removability, and the NTA gave Vladimirov adequate notice of the charges against him.

As for Vladimirov’s contention that the evidence was insufficient to prove the charges against him, the Tenth Circuit declined to independently weigh the evidence. The Circuit found substantial record support for the finding that the couple’s conflicting statements about their lives together indicated they were not in a valid marriage, and together with Vladimirov’s admission about the I-485 and Bakhrakh’s withdrawal of the I-130, ample evidence supported the IJ’s finding.

Turning to Vladimirov’s due process contentions, the Tenth Circuit noted that immigration proceedings need not approximate constitutional protections afforded to criminal defendants. Vladimirov asserted four violations of his due process rights. First, he argued he was not afforded an opportunity to cross-examine Officer Gibson. The Tenth Circuit noted that there was no circuit authority requiring personal appearance by a government agent. Although the Circuit noted that better contrary evidence than Officer Gibson’s report may have “carried the day,” Vladimirov chose not to testify in his own defense, thereby forgoing any opportunity to refute the information in Officer Gibson’s report. Vladimirov next contended that the government erred by introducing “triple hearsay” in Officer Gibson’s report. However, the Tenth Circuit again noted that hearsay is regularly used in administrative adjudications, which lack the constitutional requirement of confrontation as afforded to criminal defendants. Next, Vladimirov argued that the Form I-213 denial of his I-485 application was prepared in anticipation of litigation and so lacked a presumption of reliability. Again, the Tenth Circuit rejected Vladimirov’s arguments, finding no evidence of unreliability. Finally, the Tenth Circuit considered Vladimirov’s contention that Bakhrakh was coerced into withdrawing her I-130. The Tenth Circuit characterized the allegations as serious, but noted that informing someone of the consequences of marriage fraud is not coercion.

The Tenth Circuit denied Vladimirov’s petition to review.

Tenth Circuit: Agency Decision Presumed to Apply Prospectively Only

The Tenth Circuit Court of Appeals issued its opinion in De Niz Robles v. Lynch on Tuesday, October 20, 2015.

Alfonzo De Niz Robles filed a petition for adjustment of status in 2007, relying on the Tenth Circuit’s opinion in Padilla-Caldera v. Gonzales (Padilla Caldera I), 426 F.3d 1294, 1300-01 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237, 1244 (10th Cir. 2006), which held that 8 U.S.C. §§ 1255(i)(2)(A) allowed the Attorney General discretion in affording relief from removability under § 1182(a)(9)(C)(i)(I). After De Niz Robles filed his petition, the BIA issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which overturned the Tenth Circuit’s decision in Padilla Caldera I. In 2013, the BIA ruled that De Niz Robles was categorically ineligible for relief due to its Briones decision, which it applied retroactively. De Niz Robles appealed to the Tenth Circuit.

Applying the Chevron test and guided by the Supreme Court’s ruling in National Cable & Telecommunications Ass’n v. Brand X Internet Services (Brand X), 545 U.S. 967 (2005), the Tenth Circuit determined it was required to decide whether Briones could reasonably apply retroactively, thereby overruling Tenth Circuit precedent. The Tenth Circuit analyzed the separation of powers doctrine, noting that judicial decisions are presumed to apply retroactively due to the impartial nature of the judiciary, whereas Congressional rule-making is presumably prospective only unless otherwise specifically stated. Because administrative rulemaking is a delegation of Congressional power, the Tenth Circuit found that administrative rules are presumptively prospective in application. However, when confronted with a situation where an administrative agency acts in a quasi-judicial capacity, such as the BIA did in Briones, the Tenth Circuit examined whether the administrative action is more akin to judicial function or legislative function.

The Tenth Circuit determined that, in applying its rules pursuant to a Congressional delegation of power, the BIA was acting in a quasi-legislative capacity. Examining due process and equal protection concerns, the Tenth Circuit determined it would contravene Supreme Court precedent and constitutional safeguards to allow the BIA’s decision to be applied retroactively. The Tenth Circuit therefore overturned the BIA’s refusal to consider De Niz Robles’ petition. The Tenth Circuit noted that at the time De Niz Robles filed his petition, Padilla Caldera I was the existing circuit precedent, and he was justified in his reliance on that precedent. The BIA argued that De Niz Robles should have understood that there was a conflict between § 1255 and § 1182, and that there was a chance the conflict would be resolved against De Niz Robles’ position. The Tenth Circuit found that approach illogical, noting that a litigant is justified in relying on the law at the time a petition is filed.

The Tenth Circuit remanded to the BIA for further proceedings consistent with its opinion.

Top Programs and Homestudies — Intellectual Property, Elder Law, Immigration, and More

Over the past few weeks, we have been featuring the Top Ten Programs and Homestudies in various practice areas. Previous posts include:

Although we addressed several substantive practice areas, we offer many more great programs not featured on the previous Top Ten lists. These are discussed today.

Intellectual Property The Annual Rocky Mountain Intellectual Property & Technology Institute is the region’s premier event for IP lawyers. The 2015 Institute featured four simultaneous tracks of sessions for attorneys, covering patents and patent litigation, trademarks/copyrights, licensing, and transactional/e-commerce. As a bonus, Odyssey Beerwerks in Arvada donated custom brews for the 2015 Institute. The 2016 IP Institute is scheduled for June 2 and 3, 2016, at the Westin Westminster. Click here for more information about the IP Institute and the 2016 conference agenda.

Elder Law Colorado CLE presents an annual mountain program for elder law practitioners, the Annual Elder Law Retreat. The 2015 Retreat, held in beautiful Snowmass, discussed social security issues, including maximizing benefits; trends in VA, including special programs and applications for long-term care; atypical beneficiary requests; financial exploitation of the elderly; long-term care planning; and much more. The dates for the 2016 Retreat have not yet been announced; stay tuned to cle.cobar.org/elder for details.

Immigration — In addition to the comprehensive reference book, Immigration Law for the Colorado Practitioner, Colorado CLE offers several great immigration programs each year. Most recently, the CBA Immigration Law Section co-sponsored the program, “Immigration Law — Asylum and Other Humanitarian Relief,” which covered U visas, T visas, VAWA, special immigrant juvenile status, asylum law, and more. Find this and other important immigration law programs here.

Alternative Dispute Resolution Colorado CLE offers many great ADR programs, but the flagstone event is the 40-hour Mediation Training. This five day live program, taught by renowned mediator Judy Mares-Dixon, presents an in-depth guide to mediation as well as several breakout sessions to practice mediation skills. The 40-hour Mediation Training will occur on January 18, 19, 20, 25, and 26, 2016. Space is limited so register today.

Workers’ Compensation — Each year, the CBA Workers’ Compensation Section co-sponsors two annual events: the Workers’ Compensation Fall Update and the Workers’ Compensation Spring Update. Topics vary from year to year but each program features case law updates and news from the Division. In addition, many times medical professionals will provide education on particular types of injuries, including psychological injuries. More information about CLE’s workers’ compensation offerings can be found here.

Health Law — Two years ago, Colorado CLE began offering an annual Health Law Symposium, co-sponsored by the CBA Health Law Section and the American Health Lawyers Association. This program offers an exceptional speaker lineup of nationally recognized health law experts focused on current issues in health law of interest and concern to practicing attorneys in the rocky mountain. Topics discussed at the 2015 Health Law Symposium include discussion of the Affordable Care Act, franchising in the health care industry, HIPAA and meaningful use, antitrust rules in the provider context, and more.

Juvenile Law Although many family law programs cover topics of interest to juvenile law practitioners, this important practice area also has its own programming. Each year, Colorado CLE presents a juvenile law update, co-sponsored by the CBA Juvenile Law Section. The 2016 Juvenile Law Program, “Ethics! Ethics! Ethics!,” is scheduled for April 1, 2016, with a focus on—you guessed it—ethics. Topics covered include implicit bias, social media, ethical challenges in juvenile defense, and more. Click here to register.

Solo/Small Firm — This technically is not a practice area, but there are myriad issues that solo practitioners face while running a law business that their biglaw counterparts do not. The Solo and Small Firm Section of the CBA puts on great programming throughout the year, including topical lunches, and hosts monthly networking meetings, the Solo in Colo blog, and much more. For information on joining the Solo and Small Firm Section, click here.

If you don’t see your practice area listed here or on the previous Top Ten posts, please let us know. If you are interested at speaking at an event in your practice area, we would love to hear from you. Contact us today!

Tenth Circuit: Lengthy Sentence Justified by Defendant’s Human Rights Violations

The Tenth Circuit Court of Appeals issued its opinion in United States v. Worku on Tuesday, September 1, 2015.

Mr. Habteab Berhe Temanu’s children approached Kefelegne Alemu Worku, an Ethiopian man, and asked him to assume the identity of their father because they were afraid they would not be able to complete the admission requirements to enter the United States due to his dementia. Worku assumed Berhe’s identity and later became a U.S. citizen under Berhe’s name. Immigration authorities learned Worku was using a false identity and suspected he had tortured Ethiopian prisoners in the ’70s. After an investigation and trial, Worku was convicted of unlawful procurement of citizenship or naturalization, fraud and misuse of visas and other documents, and aggravated identity theft. He was sentenced to 22 years, partly because of a finding that he had committed the identity theft crimes to conceal the Ethiopian human rights violations.

On appeal, Worku contended (1) the immigration convictions violated the Double Jeopardy clause, (2) his aggravated identity theft conviction was improper because he had permission to use Berhe’s identity, (3) the sentence was procedurally improper because there was no evidence he had come to the United States to conceal human rights violations and the witnesses identifying him as the torturer did so due to impermissively suggestive photo arrays, and (4) the sentence was substantively unreasonable.

The Tenth Circuit first addressed Worku’s Double Jeopardy argument. Worku argued that his unlawful procurement of citizenship and aggravated identity theft convictions were predicated on the same conduct. Under a plain error review, the Tenth Circuit affirmed, finding that Count 1 was based on Worku’s form for naturalization and Count 3 was based on misrepresentations in his application for permanent residence. Worku contended the distinction was blurred in the jury instructions, but the Tenth Circuit disagreed. The Tenth Circuit found that the evidence of guilt was overwhelming and uncontroverted, and Double Jeopardy was not implicated.

Next, the Tenth Circuit addressed Worku’s contention that he could not be convicted of aggravated identity theft because he had permission to use Berhe’s identity. The Tenth Circuit found no error in this conviction, because the statute only allows an individual to permit use of his or her identity and in this case the individual’s children were the ones who allowed Worku to use the identity.

The Tenth Circuit then turned to Worku’s argument that he was denied due process because photo arrays in which he was identified as the notorious prison supervisor who had tortured inmates were unduly suggestive. The Tenth Circuit evaluated the photo arrays and found that although there were differences in the arrays, there was no error in the district court’s determination that they were not impermissively suggestive because appearances would be expected to have changed over the 30-plus-year time span. The Tenth Circuit also evaluated the witnesses’ testimony and found that because the witnesses were victims of Worku’s horrific acts of torture, the time span was inconsequential and their identification with “100% certainty” was reliable.

Finally, the Tenth Circuit addressed the substantive reasonableness of Worku’s sentence. The district court decided to stray from the Guidelines range because there were not enough cases involving human rights violators entering the United States to provide a reliable comparison. The district court imposed the maximum sentence for each count to fully compensate for the egregiousness of Worku’s human rights violations. The Tenth Circuit found no abuse of discretion in the district court’s decision.

The Tenth Circuit affirmed the district court’s conviction and sentence.

Tenth Circuit: Criminal Impersonation is Categorically a Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Veloz-Luvevano v. Lynch on July 24, 2015, and granted the respondent’s motion to publish on Monday, August 31, 2015.

Manuel Veloz-Luvevano entered the United States with a B-2 visitor visa in February 1998, but did not leave when the 6-month entry period expired. In July 2000, he was arrested by Colorado authorities for possessing a forged social security card and released on bond, but he failed to appear for court proceedings. In September 2009, he was found and re-arrested on the same criminal charges. Three days later, the federal government initiated removal proceedings. In February 2010, while the removal proceedings were pending, he pleaded guilty to the criminal impersonation charges. In December 2010, he conceded removability but applied for cancellation of removal, claiming removal would cause hardship to his wife and children. The government moved to pretermit his application because criminal impersonation is categorically a crime involving moral turpitude (CIMT) since it necessarily involves fraud. As an alternative, the government gave Veloz-Luvevano the opportunity to accept a pre-conclusion voluntary departure if he waived his appeal. He accepted the government’s offer and was given until July 30, 2012, to voluntarily depart from the United States.

In May 2012, through new counsel, Veloz-Luvevano appealed to the BIA, claiming the IJ erred in pretermitting his application. The BIA summarily dismissed the appeal on July 27, 2012. Veloz-Luvevano did not leave the United States, and in November 2012 he filed a motion to reopen the removal proceedings, claiming ineffective assistance of counsel. The IJ denied the motion as untimely, and, alternatively, ruled that Veloz-Luvevano’s Colorado conviction was, in fact, a CIMT, and therefore Veloz-Luvevano was not eligible for cancellation of removal. Veloz-Luvevano again appealed to the BIA, and the BIA decided that criminal impersonation was categorically a CIMT, denying his motion. Veloz-Luvevano appealed to the Tenth Circuit.

The Tenth Circuit, like the BIA and IJ, determined Veloz-Luvevano was not eligible for cancellation of removal because criminal impersonation is categorically a CIMT, since it necessarily involves fraud. Veloz-Luvevano argued that, in his case, there was no fraud because the social security number he was using was not assigned to anyone. The Tenth Circuit rejected his argument, noting first that Veloz-Luvevano failed to produce any supporting evidence for his argument that the social security number was unassigned, and next commenting that regardless of whether the number was assigned, criminal impersonation is categorically a CIMT. The Tenth Circuit found that Veloz-Luvevano’s first counsel was not ineffective for failing to produce documentation to support that the number was unassigned. The Tenth Circuit summarily disposed of Veloz-Luvevano’s remaining arguments as well, finding record support that his waiver of the right to appeal was knowing and voluntary and that neither the IJ nor the BIA was able to review the government’s discretionary decisions.

The BIA’s dismissal was affirmed.

Colorado Court of Appeals: Defendant Entitled to Hearing Under Crim. P. 35 if Facts Alleged Would Provide Basis for Relief

The Colorado Court of Appeals issued its opinion in People v. Morones-Quinonez on Thursday, November 5, 2015.

Ineffective Assistance of Counsel—Advising of Immigration Consequences.

Defendant was charged with one count of criminal possession of a forged instrument and one count of criminal impersonation after officers conducting a traffic stop discovered a false identification card in her possession. She hired a lawyer whose practice focused on immigration and criminal law to represent her in both the criminal case and the removal proceedings that had been subsequently initiated.

Defendant alleged in her Crim.P. 35(c) motion that she was adamantly opposed to accepting any plea offer that would make her ineligible for relief from deportation. Her lawyer recommended she plead guilty to criminal impersonation, assuring her that she would be “just fine” in immigration court because it was “minor felony” and would not affect her immigration case. Defendant pleaded guilty to criminal impersonation and was later order deported by an immigration law judge. She filed this Crim.P. 35(c) motion, alleging ineffective assistance of counsel. She contended that if she had been properly advised, she would have rejected the plea and proceeded to trial. The district court denied the motion without a hearing.

Defendant was entitled to a hearing so long as she asserted facts in her post-conviction motion that, if true, would provide a basis for relief. Applying the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), the Court of Appeals examined whether defendant showed that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that counsel’s deficient performance prejudiced the defendant.

The Court found that defendant had sufficiently pleaded deficient performance by her counsel. The Court disagreed that the district court could find as a matter of law that defendant’s allegation of prejudice was insufficient. It also found that the district court’s advisement did not cure any potential prejudice from the lawyer’s advice. Accordingly, the order was reversed and the case was remanded for an evidentiary hearing.

Summary and full case available here, courtesy of The Colorado Lawyer.