Dear AILA Santa Clara Valley Chapter Members,

One of these days I will start my Friday chair notes with an exciting, victorious, pro-active piece of news. Not this week. I may have mentioned this before, but when I go to Europe and meet with my friends who I grew up with who went to Europe instead of the United States, the biggest difference between us is this sense of “belonging”. America is truly the land of immigrants, the place where immigrants feel “at home”. I heard a commentator remark that the immigration policy of this Administration is to go to a pre-1965 immigration policy of excluding anyone who is not white. That’s not really possible when you have over 13% of the population foreign born. The diversity bus has already left the station and is well on its way and, let’s face it, it is beautiful. Being “a nation of immigrants” is a badge of honor, to be worn proudly and uniquely qualifies us as leaders of the world. The ability to attract, maintain and integrate immigrants is the deposit for our continued success. Thus, when USCIS, the Agency entrusted with administering benefits decided to take out our identity and beauty as “a nation of immigrants” from its mission statement, it is a major reversal and should not be ignored. We must keep going forward. I am grateful more than ever for the relationships that we have with our local agencies. Community Relations emails and liaison engagements are crucial and attending the upcoming liaison meeting on March 1, 2018 even more important.

Nationally, I want to encourage all of you to visit AILA’s website and utilize the tremendous resources that are available. One of the benefits of your AILA membership is access to tools that will make you a better practitioner. Like everything else, it takes time to navigate through the website. The first thing I encourage you to do is to go to your personal profile and make sure you have updated and completed all of the information. Then explore the interest groups, practice areas and so on. The practice management section is chock full of very useful guides. I talked to Reid Trautz at AILA National and I am trying to organize a time for him to come out and talk to us about the benefits of AILA membership and have individuals schedule one on one time if you so desire. What do you think?

Locally, we had a great meeting in Santa Cruz on Wednesday. We had a great discussion after the meeting led by Kalpana Peddibothla on Advocacy and Media strategies. As we prepare for AILA’s Annual National Day of Action, I am asking anyone who wants to be part of the group or involved in advocacy to please contact me. Please note the upcoming USCIS Stakeholder meeting on March 1, 2018 at 1:30 pm. Please attend. In light of what I said above, it is important that we have a robust relationship with our local office and your attendance is important.

And now for my favorite part, introduced Sesame Street style: This week’s Merle’s corner is brought to you by the letter M as in “Misprision” and “Mayhem”.

Merle’s Corner

This week there have not been any decisions out of the Ninth Circuit, but we have two decisions from the Board of Immigration Appeals; and one of the two decisions doesn’t apply in the Ninth Circuit. Plus, the case that doesn’t apply in the Ninth should be overturned by the Circuit Courts because it does not properly use the categorical analysis. First, we will talk about the case that applies in the Ninth Circuit.

In Making a Credibility Determination the Immigration Judge is to Look at the Totality of the Circumstances

In a rather nonsensical case, the BIA held that the Immigration Judge is to look at the totality of the circumstances in determining the credibility of a noncitizen in a statement given at the port of entry. But, they rejected the Second Circuit’s list of factors to determine credibility, and replaced it with an amorphous “totality of the circumstances” test – without listing those factors at all. In this case, the noncitizen was removed in 2010 when he first tried to enter the U.S. He told the Border Patrol that he was coming to the United States to look for his father because his family had not heard from him for three years; and that he (the noncitizen) planned to stay for a week or two in the United States to look for his father. He said that he did not fear to return to Mexico and that he was not subject to any persecution in Mexico. He was given a removal order in April 2010, in what I assume was an expedited removal. In 2016, he returned to the U.S. and claimed that he would be tortured by the Michoacán Cartel if he returned to Mexico. This time, he said that in March 2010, the cartel came to his aunt’s house and kidnapped his father. They returned 2 days later and kidnapped him. The noncitizen said that he had not seen his father since his kidnapping. He said that he was released by the cartel after they determined that he was not a member of a rival cartel. (I assume that is when he fled to the United States in April 2010 and was removed). The Immigration Judge, found that the noncitizen lacked credibility because of the discrepancy between his testimony in April 2010 at the port of entry and his testimony in May 2016.

The BIA found that in determining whether a noncitizen is credible they adjudicator must consider the totality of the circumstances and look at all relevant factors including the consistency between the noncitizen’s written or oral statements while considering the circumstances under which the statements were made. The BIA rejected the factors that the Second Circuit said should be considered when they reviewed this issue as being too limiting. But, they said that these factors could be part of the overall “totality of the circumstances” determination. These factors include: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the noncitizen’s statements; (2) whether the questions asked were designed to elicit the details of a claim; (3) whether the noncitizen appears to have been reluctant to reveal information to the interviewer because of prior interrogation sessions or other coercive experiences in his or her home country; and, (4) whether the noncitizen’s answers to the questions suggest that s/he did not understand, English or the interpreter’s translation. I thought that these factors were pretty well thought out. The BIA disagreed. For some reason, the BIA felt constrained by these factors. Interestingly, they did not say what other factors they would consider, just that they would use a totality of the circumstances test.

Back to this situation. The BIA found that there were significant discrepancies in the noncitizen’s statements and that his explanations for those discrepancies were unpersuasive. Because the noncitizen lacked credibility, he could not establish a claim for relief under the Convention Against Torture. Let’s hope he was not credible and that he was not sent to his death.

Matter of J-C-H-F-, 27 I.&N. Dec. 211 (BIA 2018).

Misprision of a Felony is Categorically a Crime Involving Moral Turpitude – Except in the Ninth

In a crime that I think we are going to hear a lot about in the near future, “misprision of a felony” is categorically a crime involving moral turpitude (CIMT), unless the noncitizen is in the Ninth. So, the first question is, what is “misprision of a felony?” It has always been one of my favorite names for a crime. Misprision of a felony and mayhem. Misprision because I had no idea what it was and mayhem because it sounds like fun. This case taught me a lot. Misprision of a felony is concealing a felony committed by someone else. As I said, I think that by the end of 2018 everyone in the United States will know the definition of misprision of a felony.

Now to the importance of this offense for immigration purposes. The BIA held that misprision of a felony is categorically a CIMT because the act of knowingly taking steps to conceal a felony is reprehensible conduct committed with knowledge that the conduct was wrong. For a crime to be a CIMT the underlying conduct must be reprehensible and must be committed with scienter. First, the BIA looked at the elements of the crime: (1) the principal committed and completed the alleged felony; (2) the defendant had full knowledge of that fact; (3) the defendant failed to notify the authorities; and (4) the defendant took steps to conceal the crime. United States v. Cefalu, 85 F.3d 964, 969 (2nd Cir. 1996). The Ninth Circuit had previously held that misprision of a felony is categorically not a CIMT because the principal could have committed a crime that was not a CIMT, while the person who concealed the offense would be guilty of a CIMT. The Ninth Circuit found this result absurd and nonsensical. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012). The BIA disagreed with the Ninth and held that the affirmative act of concealing a known felony is deceitful and dishonest and is therefore reprehensible conduct. Plus, because the concealment must be knowing, the misprision statute has the requisite element of scienter.

The BIA in its decision failed to do a categorical analysis. They failed to determine if the minimum conduct prosecuted under the statute is a CIMT. It does not require a lot of “legal imagination” (as the Supreme Court named it in Duenas-Alvarez) to realize that the minimum conduct necessary to commit this offense is likely not a CIMT. Imagine if the principal had committed felony possession of a controlled substance – let’s make that substance marijuana; which is a federal felony but is legal in many states. Would the defendant be guilty of a CIMT when the principal wasn’t guilty of a CIMT? As I said, we don’t have to worry about it in the Ninth, but this decision should be fought in every other circuit, because the BIA failed to conduct the proper analysis.

So, misprision of a felony is a CIMT outside of the Ninth Circuit. But, in the Ninth we have Robles-Urrea and given the minimum conduct test under Moncrieffe and Mathis, I believe that the Ninth Circuit’s analysis is the correct analysis.

Matter of Mendez, 27 I.&N. Dec. 219 (BIA 2018).