Fernandez-Ruiz v. Gonzales, (9th Cir. Nov. 15, 2006)
AZ Rev. Stat. §13-1203 requires neither “willful intent”
nor abuse severe enough to cause “a traumatic injury” and therefore,
does not qualify as a categorical crime involving moral turpitude.
Petitioner was convicted of several crimes after having been
admitted to the U.S. as a lawful permanent resident in 1990. In 2002
and 2003, Petitioner was convicted of violating Ariz. Rev. Stat.
§§13-1203 and 13-3601, “domestic violence/assault.” In removal
proceedings, Petitioner was charged with removability based on (1) his
crime of domestic violence (the 2003 conviction); (2) two crimes
involving moral turpitude (the 2002 and 2003 convictions); and (3) an
aggravated felony (a 1992 theft conviction). The immigration judge
sustained all charges of removability and denied cancellation of
removal. The BIA affirmed. A three-judge Ninth Circuit panel denied the
subsequent petition for review, finding Petitioner’s 2003 domestic
violence offense constituted a “crime of violence” as defined by 18 USC
§16(a) which rendered him removable under INA §237(a)(2)(E)(i). Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 588 (9th Cir. 2005). An en banc court reversed, holding that under Leocal v. Ashcroft,
543 U.S. 1 (2004), a federal “crime of violence” must involve the
intentional use of force against the person or property of another. Fernandez-Ruiz v. Gonzales,
466 F.3d 1121 (9th Cir. 2006). The en banc court then remanded the case
for a three-judge panel decision on the remainder of the issues: (1)
whether Petitioner’s 2002 and 2003 convictions constituted crimes
involving moral turpitude; and (2) whether his 1992 theft conviction
constituted an aggravated felony.
AZ Rev. Stat. §13-1203(A) states that a person commits misdemeanor
assault by “(1) [i]ntentionally, knowingly or recklessly causing any
physical injury to another person; or (2) [i]ntentionally placing
another person in reasonable apprehension of imminent physical injury;
or (3) [k]knowingly touching another person with the intent to injure,
insult or provoke such person.” Petitioner’s 2003 conviction
constituted a “class 2” misdemeanor conviction which is classified as
either “reckless” assault under subsection (A)(1) or assault pursuant
to subsection (A)(2).
The court applied the categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990), and held that Petitioner’s 2003 class 2 assault
conviction did not qualify as a crime involving moral turpitude. The
court explained that generally, a conviction for simple assault does
not involve moral turpitude and pointed out that AZ Rev. Stat. §13-1203
is in fact a “simple assault” statute. The court also found the BIA’s
reliance on Grageda v. INS, 12 F.3d 919 (9th Cir. 2003) to
support its holding that “the additional element of the domestic
relationship turns the assault into a crime involving moral turpitude,”
to be misplaced. First, the court explained that while Grageda
involved a California domestic violence conviction which was found to
constitute a crime involving moral turpitude, its holding was limited
to those acts of domestic violence that are done willfully. The court
further noted that “a finding of willfulness and/or evil intent is
necessary in order to establish moral turpitude [and] Arizona’s class 2
misdemeanor assault does not require a willful or intentional act.” The
court stated that it’s holding in Grageda is further limited to
situations where “a person beats his or her spouse severely enough to
cause ‘a traumatic condition’ [and] does not suggest that a spousal
contact that causes minor injury…constitutes a crime involving moral
turpitude.” Not only does AZ Rev. Stat. §13-1203(A) not require a level
of injury of this magnitude, its does not require bodily injury of any
kind. The court then applied the modified categorical approach but
quickly concluded that the record of conviction did not contain any
information that would indicate that Petitioner pleaded guilty to acts
involving moral turpitude. The court held that Petitioner’s 2003
conviction could not be used as a basis for removal.
For similar reasons, the court also found that Petitioner’s 2002
conviction did not qualify as a crime involving moral turpitude.
Examining AZ Rev. Stat. §13-1203(A)(3), the court found that the plain
text clearly states that a conviction under this subsection does not
require physical injury of any kind, as it only requires an act of
“touching” one’s spouse in order to “insult” or “provoke.” The record
of the 2002 conviction provided no additional information and the court
held that Petitioner’s 2002 conviction could also not be used as a
basis for removal.
Finally, the court turned to the question of whether Petitioner’s
1992 theft conviction constituted an aggravated felony. INA
§101(a)(43)(G) defines as an aggravated felony, “a theft offense…for
which the term of imprisonment [is] at least one year.” Although
Petitioner was sentenced to one year of imprisonment, he argued that
the sentence was unlawful because at the time sentence was imposed, his
conviction was classified as a misdemeanor and under AZ law, the
maximum term of imprisonment for a misdemeanor is, and was, six months.
The court remanded the case to the BIA for it to consider whether
Petitioner’s one-year sentence is illegal on its face and, if so,
whether he may still be removed as an aggravated felon. The court
concluded by holding that because Petitioner is no longer removable for
two crimes involving moral turpitude, he would be eligible for a waiver
of inadmissibility as to his theft offense under former INA §212(c) if
he is not otherwise barred. The petition for review was granted.
Wednesday, January 17, 2007; Page A08
U.S. authorities mistreated suspected illegal immigrants at five prisons and jails nationwide, violating federal standards meant to ensure safe and humane custody, according to a government report released yesterday.
U.S. Immigration and Customs Enforcement (ICE) officials and contractors denied timely medical treatment to some of the immigrants, failed to disclose and justify disciplinary actions against them, and improperly limited access to relatives, lawyers and immigration authorities, according to the Department of Homeland Security inspector general.
Detention officers failed to establish a system to report abuse and violated health and safety rules by neglecting to monitor prisoners on hunger strikes or suicide watches and by serving undercooked food, the report said.
The report comes amid a sharp increase in illegal immigrants in U.S. detention as Congress and the Bush administration debate an overhaul of immigration laws and promise tougher enforcement of existing laws. Civil liberties and immigrant advocacy groups are stepping up scrutiny of conditions. Jorge Bustamante, the U.N. special rapporteur on human rights of immigrants, has asked to visit U.S. detention centers next month.
Tuesday, January 16, 2007; 9:46 PM
EL PASO, Texas — An anti-Castro militant indicted on charges of lying to federal immigration agents in a bid to become a naturalized citizen made his first court appearance Tuesday.
Shackled at the wrists and ankles, Luis Posada Carriles was read the charges in a seven-count indictment made public last week but did not enter a plea. He was ordered held without bail pending a bond hearing Friday.
Posada, 78, a former CIA operative and U.S. Army soldier, has been held at an El Paso immigration detention center since May 2005 on a charge that he entered the country illegally through Mexico.
The indictment says Posada entered the country on a boat, instead of with the help of a human smuggler as he claims. It also alleges he lied about having a Guatemalan passport and using an alias, among other things.
Members of a Chicago storefront church say they
fear U.S. authorities are planning to raid their building and arrest an
illegal immigrant who has taken refuge there.
Adalberto United Methodist Church has sheltered Elvira Arellano and her 8-year-old son since August.
That’s when Arellano was supposed to be deported. But instead she
sought sanctuary at the church, claiming she didn’t want to be
separated from her son who is a U.S. citizen.
The Reverend Walter Coleman says neighborhood residents reported seeing
U.S. marshals taking pictures of the church Tuesday night.
In response, church members say they plan to stand guard in doorways, windows and the building’s rooftop in a 24-hour vigil.
A spokesman for the U.S. marshal’s office says the agency would not be involved in the matter.
RICHMOND, Va. —
Whenever someone knocks on the door, Beatriz Marquez’s 2-year-old son gets excited.
“Daddy coming?” Anthony asks repeatedly in Spanish. “No, Daddy is working,” she tells him.
little boy has been waiting for his father to come home for more than
three months. The last time he saw Victor Orellana, he was in handcuffs
on his way to jail.
Orellana, 28, who was in the U.S.
illegally, was deported to El Salvador in October, a month and a half
after he was detained at his home in Henrico County by U.S. Immigration
and Customs Enforcement agents.
During the most recent fiscal
year, 186,641 immigrants who were in the U.S. illegally were deported.
Of those, 1,576 lived in Virginia and the nation’s capital.
Marquez and her children are living the consequences of her husband’s deportation, and she is not alone.
Times-Dispatch reporter spoke with a handful of women in the Richmond
area–some of them in the country legally, others not _ whose husbands
have been deported recently. Their lives, and the lives of their
children, were turned upside down in a heartbeat.
the women found themselves frantically trying to save their husbands
from deportation. Some had to move out of their homes because they
couldn’t work to pay the rent while caring for their children.
Yet another story of an “Immigration Consultant” nonlawyer who took enormous sums of money from her clients and ultimately had them deported from the US due to her incompetence. I always caution my clients to avoid ‘notario’ nonlawyers who guarantee results; they are not licensed to practice Immigration law, and generally have no idea what they are doing.
ATLANTA, Georgia (AP) — State Sen. Curt Thompson has been a
strong advocate of immigration rights, once speaking in Spanish from
the steps of the Georgia Capitol against the adoption of some of the
nation’s strictest immigration controls.
Now Thompson’s Colombian-born wife is in hiding as federal immigration officials try to deport her.
Herrera, 28, has been in hiding since Immigration and Customs
Enforcement officers arrived at her home November 28 with an order to
remove her from the U.S. She was not home at the time.
attorney, Charles Kuck, claims she was duped by a man handling her
immigration requests and that she never received the immigration
notices that triggered her deportation order. While Kuck says neither
he nor her husband know where Herrera is, he said that she will turn
herself in Tuesday.
“It’s the right thing to do. She needs to get the law to work for her,” Kuck said.
filed a petition Monday to halt her deportation order and reopen her
case, arguing that a man filed an asylum petition on her behalf without
her knowledge and before her husband sponsored her green card
application based on their April marriage.
The deportation order
stems from Herrera’s repeated failure to appear before a judge on the
asylum application, which Kuck said she did not know had been filed.
case hinges on whether Herrera received a notice to appear in court,
and whether the asylum application could have been filed without her
knowledge, said Victor Cerda, former general counsel for Immigration
and Customs Enforcement.
According to Kuck, Herrera came to the
U.S. — where her parents have been living — on a visitor visa in
2003. She applied for an extension to the visa through a “notario” — a
man who claimed he was qualified to handle legal immigration matters —
but did not get it until 20 days before the extension was due to expire.
notario then suggested an asylum application, which Herrera signed, but
she got a “bad vibe” from the man and decided not to proceed, Kuck said.
in 2004, she was accepted as a student at Kennesaw State University,
which earned her a student visa. She then told the notario she did not
want anything to do with him.
She met Thompson last year and they
got married in April, when he applied for her to become a permanent
resident. Kuck said Herrera’s husband, a Democrat and attorney, would
not comment on the case.
But in the meantime, the notario filed
the asylum application, listing his address as hers. A telephone number
listed for the notario, identified as Tomas Vilela, was being answered
Monday by a fax machine.
Cerda said the deportation order in the
asylum case would trump any pending green card application and trigger
Her decision to hide could hurt her request
for a judge’s stay on deportation, Cerda said. If she turns herself in,
she could remain in the U.S. while her petition is pending, either in
jail or released on bond.
TORONTO — An inquiry into the U.S. transfer of a Canadian citizen
to prison in Syria found Canadian authorities gave misleading
information to the Americans that likely led to the deportation, a
report released Monday said.
After his release in 2003,
Syrian-born Maher Arar made detailed allegations about extensive
interrogation, beatings and whippings with electrical cable in Syrian
Arar was traveling on a Canadian passport when
he was detained at a New York airport in September 2002 during a
stopover on his way home to Canada from vacation in Tunisia. He claims
he was a victim of extraordinary rendition – or the transfer of foreign
terror suspects to third countries without court approval.
said U.S. authorities sent him to Syria for interrogation on suspicion
of being a member of al-Qaida, an allegation he denied.
federal government established an inquiry in 2004 to determine the role
Canadian officials played in the case of Arar, who has been cleared of
any terrorist connections.
Justice Dennis O’Connor released
the report on Arar that concluded the Royal Canadian Mounted Police
passed misleading, inaccurate and unfair information to U.S.
authorities that “very likely” led to their decision to send Arar to
Syria, but found no evidence Canadian officials participated in or
agreed to the decision.
For 12 years, Julio Rosell has lived, worked and paid taxes from his
roomy, idyllic Hollywood home — his lawn freshly mowed; his two cars
polished; his boat luxurious.
He fathered two American-born children: 10-year-old Jeannette and 9-year-old Julio Jr.
As a Cuban exile, he expected his American dream to continue.
But now Rosell finds himself in a situation unfamiliar to most Cuban exiles. His immigration status is in limbo.
The 41-year-old Havana native lost his bid for a green card because
he came to the United States as a stowaway. While he won’t likely be
deported, he cannot legally drive or work now.
”No one seems to care,” said his wife, Caroline Rosell, whose own
status depends on her husband’s. “My husband has no driver’s license,
mine’s about to expire and we are supposed to be supporting two kids
financially. I wonder how they really expect us to live — without
papers or a driver’s license.”
In the decade he adjusted to the American way of life, no one told Rosell he shouldn’t be here.
Duarnis Perez became an American citizen when
he was 15, but he didn’t find out until after he had been deported and
then jailed for trying to get back into the country.
He was facing his second deportation hearing
when he learned he was already a U.S. citizen. Still, federal
prosecutors fought to keep him in custody.
Last week, a federal judge scolded prosecutors for the mistake.
“In effect, the government is arguing that an
innocent man who was wrongly convicted should not be released from the
custody of the United States,” U.S. District Judge Lawrence Kahn wrote.
He ruled that Perez never should have been deported.
The case has gotten the attention of
immigration observers, who call it a striking example of the gaps in an
overworked immigration system.
Perez became a citizen when his mother was
naturalized in 1988 but apparently wasn’t aware of it. His lawyer, J.
Jeffrey Weisenfeld of New York, declined to release details other than
to say that Perez, now in his early 30s, remains in the United States.
Negewo, the former Atlanta bellhop accused of torturing political
opponents during the brutal period in Ethiopia’s history known as the
Red Terror campaign, has lost an appeal to stay in the United States.
Negewo’s case was significant because his was the first removal
order obtained by ICE under the Intelligence Reform Act of 2004.
Michael Keegan, a spokesman for U.S. Immigration and Customs
Enforcement (ICE) in Washington, said Negewo, who is currently being
detained by immigration authorities in Atlanta, can still appeal.
Negewo fled his homeland in 1987 and came to the United States under a
A few years later, he was identified by one of his accusers,
Edgegayehu Taye, who worked at the same hotel. Taye notified two other
Ethiopian women who identified Negewo as the man who had tortured them
during the bloody regime of Mengistu Haile Mariam.
“We are pleased that this process has come to a definitive
conclusion that will result in an added measure of justice with Mr.
Negewo being removed from this country where he should never have been
allowed to enter and receive asylum,” said Michael Tyler, a partner
with the firm of Kilpatrick Stockton, which represented the women. “And
it’s altogether fitting and proper that he be returned to Ethiopia
where he has been convicted for his acts of murder and torture and
sentenced to life imprisonment.”
Tyler said he had spoken to his clients who are “pleased with this result.”
Negewo had vigorously fought deportation claiming that if he were
returned to Ethiopia, he would likely be tortured. He denied any
In its ruling earlier this month, the Department of Justice’s Board
of Immigration Appeals, upheld a federal judge’s determination that
Negewo committed acts of persecution, torture and extrajudicial
killings against political opponents in his homeland. It also said
Negewo could expect to receive “at least some aspect of due process in
the Ethiopian court system.”
In 2002, Ethiopia convicted him of crimes in absentia.
Negewo’s case also garnered much attention because of the way in
which he was identified, which had the makings of a Hollywood script.
Taye, one of Negewo’s accusers, worked at the same hotel as a waitress.
According to previous AJC articles, about 15 years ago, a shocked Taye
recognized Negewo as she stepped off an elevator.
In a 2005 interview with The Atlanta Journal-Constitution, Taye,
recalled that period in Ethiopia. “There were a lot of things going
on,” she said. “People were arrested, tortured and people
disappeared… . You lived in fear and in terror always.”
Neither Taye nor the other women could be reached for comment.
Taye said she was arrested and taken to a place where she was forced
to strip to her underwear. There, she was hogtied, a wooden pole placed
between her hands and feet, suspended between two pieces of furniture
She didn’t see Negewo again until she moved to Atlanta. Taye said
she was horrified to see him on the job. “It was very hard for me to
see him,” she said. “I thought I was dreaming. “
Taye said she went home and cried uncontrollably. “He was the primary reason for me to flee my country.”
In 1990, according to a previous AJC article, the women sued Negewo.
Several years later a federal judge ordered him to pay $1.5 million in
But that wasn’t the end. In 1995, the former Immigration and
Naturalization Service granted Negewo citizenship. “That obviously
should not have happened,” Kenneth Smith, an ICE official, was quoted
as saying in that same article. In 2001, the government sued to revoke
his citizenship, which he later voluntarily relinquished.
Then last year, authorities arrested Negewo at his Union City home.
Via Home News Tribute
EDISON — Rajnikant Parikh, the man whose encounter with township police
on July 4 sparked a protest and counter-protest rallies last week, is
being held at the Middlesex County Adult Correction Center in North
Brunswick, pending deportation, which one government official called
He has been held in the facility since Wednesday, when he was arrested at the rally, immigration officials said yesterday.
Parikh spoke with his American-born wife, Julie Patel, for about five minutes on the telephone on Sunday.
Authorities said Parikh violated immigration law by using multiple identities — an allegation his attorney denies.
Grenier, public affairs officer for the U.S. Immigration and Customs
Enforcement office in Boston, which has jurisdiction in New Jersey,
said: “Parikh was on an outstanding deportation order passed in 2005,
and on that he was arrested. It doesn’t matter whether he is married to
an American-born citizen. He is charged with violation of immigration
However, his lawyer, Jonathan Saint-Preux of Irvington,
said Parikh is a victim of a misunderstanding, and he plans to file
motions to re-open Parikh’s case.
The rally Wednesday was called
to protest a July 4 incident in which Parikh alleged that he was struck
by Edison police officer Michael Dotro during an unauthorized fireworks
display in the township. Parikh was charged with assault on a police
officer at the fireworks display.
The counter-protest last week was staged by people supporting the police.
denied the multiple-identity allegation, though he did indicate
yesterday that authorities contend Prikh’s fingerprints match prints
taken in 1995 under a different name.
“He does not have multiple identities,” said the attorney.
to Saint-Preux, Parikh at one time was ordered to leave the country,
and did so. But, according to Saint-Preux, Parikh was allowed to return
to the United States legally.
While Saint-Preux believes Parikh
will be cleared of charges, the government thinks otherwise. “His
deportation is imminent” said an officer at the Newark district office
of the the ICE, a branch of the Department of Homeland Security.
to an ICE spokesman, people arrested by the department are placed in
custody where there is space available. Normally detainees are housed
in Elizabeth, but because of space needs Parikh is being housed in
Saint-Preux said yesterday he expected it would take at least two weeks for his client’s case to be heard.
Parikh’s wife, Julie Patel, said yesterday she talked to her husband “for less than five minutes in the early evening.”
Patel directed questions about her husband’s legal battles to Saint-Preux.
officials in Edison continued to study whether anyone in the township
was informed of the pending arrest of Parikh by ICE agents at the Aug.
2 rally. ICE spokesmen said they worked closely with Edison police to
make the arrest, but Edison officials last week said they were unaware
of ICE’s plan to arrest Parikh at the rally.
State’s clients must show legal residency
A new immigration law that takes effect Tuesday will require more than 100,000 people served by the Colorado Department of Human Services to prove that they are in the country legally.
Foster care parents, child care providers, welfare and low-income energy-assistance recipients, and a wide range of mentally and developmentally disabled and elderly clients will need to comply with stricter ID requirements created by House Bill 1023.
State lawmakers, during a special legislative session that ended July 10, passed the landmark law – designed to prevent illegal immigrants from receiving taxpayer-funded benefits – that is expected to be signed soon by Gov. Bill Owens.
Starting Tuesday, people applying for most DHS benefits, as well as current recipients filing the required annual recertification, will need to sign an affidavit attesting to their legal immigration status.
They will also need to provide a Colorado driver’s license or state-issued ID (or a U.S. Merchant Mariner card or a Native American tribal document).
The new law won’t apply to people receiving federal food stamps because federal law supersedes state law, and federal law allows recipients to use a wider variety of IDs to qualify.
The new law exempts people receiving emergency services and children under 18.
The agency is awaiting guidance on whether programs for the elderly under the Older Americans Act, such as home-delivered meals and in-home services, will be affected by HB 1023, said DHS spokeswoman Liz McDonough.
“It’s a difficult law to implement because, No. 1, it’s not been done by any other state . . . and the time frame has been a challenge,” she said.
The Colorado State Board of Human Services issued rules about the implementation of HB 1023 during an emergency meeting Thursday afternoon, McDonough said.
The board issued a 22-page set of rules that will be given to county agencies and advocacy groups. The board was unable to identify the cost of complying with the new law or any potential savings that could come from denying services to illegal immigrants.
Most DHS services are administered by county agencies. Government workers already check immigration status through Social Security numbers for many programs. Citizenship or a certain level of legal immigration status already is required to qualify for most DHS services.
“What this represents is a higher standard of identification and verification,” McDonough said.
About 500,000 people receive benefits through DHS.
The low-income energy program known as LEAP serves nearly 100,000 households. LEAP clients won’t begin applying for benefits until November.
Some DHS clients, including the severely disabled, mentally ill and elderly, will have great trouble obtaining the new forms of ID. The state Department of Revenue is expected to issue a temporary waiver process to address this problem, allowing certain groups more time to obtain the required ID without halting services.
The attorney general’s office also is expected to give state agencies guidelines about the new law in coming days.
“There are still issues that are being clarified – as that clarification comes, we will re-evaluate,” McDonough said.