Litigators Update Raed Gonzalez JD LLM Carlos Moctezuma Garcia Update on the Categorical Approach Mathis v United States Criminal statute defining single crime with single set of elements triggers categorical approach ID: 1038930
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1. 2016 AILA MidSouth and Texas Joint Chapter Conference Litigator’s Update Raed Gonzalez, JD LLMCarlos Moctezuma Garcia
2. Update on the Categorical Approach
3. Mathis v. United StatesCriminal statute defining single crime with single set of elements triggers categorical approachMultiple crimes with multiple, alternative elements (divisible statute) triggers modified categorical approach Multiple alternative (factual) means of satisfying statute’s elements are only alternative means of committing a single crimeDescamps v. United StatesModified categorical approach is inapplicable to a crime with single, indivisible set of elements
4. Mellouli v. LynchCategorical approach only looks to statute itself not to conduct to determine if alien is removableState conviction triggers removal if and only if the crime falls within a category of removal offenses defined by federal lawJohnson v. United StatesResidual clause of Armed Career Criminal Act violates due process because it is unconstitutionally vague Holding is applicable to 18 USC 16(b)Held unconstitutionally vague by 6th, 7th, 9th, and 10th CircuitsShuti, Vivas-Cejas, Dimaya (cert. granted) & GolicovGonzalez-Longoria (5th) held not unconstitutionally vague
5. BIA’s decision in Chairez III in light of MathisAttorney General uses “means vs. elements” to find Utah Statute not divisible AG looked to state cases but didn’t find jury unanimity decisions for this offense Then looked at second-degree murder cases which could lead to conviction in 3 separate manners and inferred Utah courts would not require jury unanimity for firearm offense
6. Supreme Court Grants Cert – Sexual Abuse of a MinorEsquivel-Quintana v. Lynch, 810 F.3d 1019 (cert. granted on 10/29/2016 – last Friday)Categorical approach case Supreme Court to determine the generic definition of “sexual abuse of a minor”
7. Question PresentedUnder federal law, the Model Penal Code, and the laws of 43 states and D.C., consensual sexual intercourse between a 21-year old and someone almost 18 is legalBut 7 states have statutes criminalizing such conductIs a conviction under one of those statutes an aggravated felony of sexual abuse of a minor under INA 101(a)(43)(A) – and therefore constitutes grounds for mandatory removal?
8. Yes, but maybe NoBIA, 26 I. & N. Dec. 469 (BIA 2015) & 6th Circuit, 810 F.3d 1019 (6th Cir. 2016)5th Circuit hasn’t addressed this specific issue but it would also likely say yes based on previous holding that if statutes criminalizing sex with minors define “minor” as person under 18, they comport with generic meaning of minor in INA. Contreras v. Holder, 754 F.3d 286 (5th Cir. 2014)
9. Motions to Reopen & Equitable Tolling
10. Mata v. Lynch Held: courts of appeals have jurisdiction to review Board denials of MTRs, including sua sponte denials Also, whenever an alien files a MTR, he does so under INA § 240(c)(7) (statutory right), and even if untimely, the courts have jurisdiction to review the BIA’s denial such motion. Lugo-Resendez v. LynchMTR deadlines are subject to equitable tolling. Standard: (1) must be pursing rights diligently; (2) some extraordinary circumstance beyond alien’s control prevented timely filing
11. New EOIR Proposed Regulations for Lozada motions and equitable tolling Built on Lozada; will establish uniform procedural and substantive requirements; & instances where equitable tolling would applyDeparture bar cases All circuits agree departure bar is invalid2d, 3d, and 5th Circuits distinguish whether the motion was regulatory or statutory But Mata says timeliness is merits determination; so the bar always conflicts with statutory right to file MTR
12. Ex Post Facto ClauseFor the Federal Criminal Defender or Immigration Attorney who gets the question: “what happens if I come back illegally?”Peugh v. United States, 133 S.Ct. 2072 (2013)Courts cannot use new sentencing guidelines if they yield higher sentences than the guidelines that were in effect at the time when the crime occurredIllegal Reentry Cases – 8 U.S.C. 1326
13. 2L1.2 SummaryThe amendment eliminates the “categorical approach”Enhancements are based on the length of the prior sentence imposedAccounts for prior criminal conduct in a broader and “more proportionate” mannerIncludes a new enhancement for prior illegal reentry convictions
14. Supreme Court - Crime of ViolenceCert granted Lynch v. Dimaya, 15-1498 (U.S.)Is 18 U.S.C. §16(b) unconstitutionally vague? United States v. Johnson, 135 S.Ct. 2551 (2015) Residual clause of the ACCA is unconstitutionally vague (“void for vagueness”)Language of residual clause very similar to 18 U.S.C. §16(b)5th Circuit in Gonzalez-Longoria II finds 16(b) not unconstitutionally vague
15. Gomez-Perez (applying Mathis)Texas Pen. Code 22.01(a)(1) assault is not a divisible statuteCourt applies the “means vs. elements” test and concludes that “the three culpable mental states in sec. 22.01(a)(1) are ‘conceptually equivalent’ means of satisfying the intent element, so jury unanimity as to a particular one is not required.”Tx. assault offense merely offers alternative means of committing offense; thus doesn’t allow application of modified categorical approachApplies “minimum reading”; rejects realistic probabilityOffense is CIMT is min. reading of statute necessarily reaches only offenses involving moral turpitude
16. Post-ConvictionU.S. v. Munoz-Gonzalez, 812 F.3d 439 (5th Cir. 2016)A pardon granted for reasons other than proof of innocence does not vitiate the defendant’s prior crimes or convictions.Good to keep in mind for State Padilla writs
17. Crime of Violence? Voisine v. United States, 136 S.Ct. 2272 (2016)Reckless domestic assault can qualify as “misdemeanor crime of DV” for purposes of federal crime of possession of firearm by person previously convicted of misdemeanor crime of domestic violenceUse of “physical force” language found in federal statute may extend to reckless conduct that is volitional even if resulting harm was not intended
18. VoisineGov’t may try to use case and argue that 18 USC 16 “crime of violence” definitions referenced in the aggravated felony and crime of domestic violence provisions of the INA reaches reckless conduct offenses However, Court expressly provided that it’s ruling in Voisine – finding that a differently worded criminal law definition reaches reckless behavior – does not resolve whether the 18 U.S.C. § 16 definition includes such conduct
19. Matter of Silva-Treviño (III)12-year battleCategorical and Modified categorical approaches provide proper framework for determining CIMTUnder the “minimum reading” Tex. Pen. Code 21.11(a)(1), indecency with a child, not categorically CIMT
20. Questions?
21. Contact InfoRaed Gonzalez , JD LLMGONZALEZ OLIVIERI, LLCrgonzalez@gonzalezolivierillc.comCarlos Moctezuma Garcia GARCIA & GARCIA, PLLC cgarcia@garciagarcialaw.com