Immigration Law
| Jurisdiction | United States,Federal |
| Citation | Vol. 74 No. 4 |
| Publication year | 2023 |
Immigration Law
Bianca N. DiBella
Michael C. Duffey
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This Article surveys cases from the United States Court of Appeals for the Eleventh Circuit from January 1, 2022 through December 31, 2022, in which immigration law was a central focus of the case. The Article begins with a discussion of cases addressing procedural and jurisdictional issues and the interpretation of decisions by lower and state courts. Then, the Article describes the Eleventh Circuit's recent jurisprudence around discretionary relief from removal, asylum, and habeas corpus law.
A. Impact of Prior Criminal Convictions
The United States Court of Appeals for the Eleventh Circuit reviewed several cases this year involving disputes over the effect of prior criminal convictions on immigration proceedings.1 For example, in Edwards v. U.S. Attorney General,2 the Eleventh Circuit addressed a number of challenges to the Attorney General's decision in Matter of Thomas.3 Prior to Thomas, the immigration impact of state court orders being reviewed by the Board of Immigration Appeals (BIA) differed depending on whether the state court order was a "modification" order or a
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"clarification" order.4 Thomas, decided while Edwards' removal proceedings were pending, removed this discrepancy in the treatment of state court orders.5 Instead, the Attorney General stated that any state court orders modifying, clarifying, or otherwise altering an individual's criminal sentence should only be given effect for immigration purposes if the order was entered based on a procedural or substantive defect.6
Edwards immigrated from Jamaica to the United States in 2002 and became a lawful permanent resident in 2003.7 In 2012, Edwards was convicted of family violence battery in violation of O.C.G.A. section 16-5-23.18 and was sentenced to twelve months of confinement but permitted to serve the sentence on probation. The Department of Homeland Security initiated removal proceedings in March of 2015, asserting that Edwards' family violence conviction was an "aggravated felony" under the Immigration and Nationality Act (INA),9 rendering Edwards removable.10
After removal proceedings began, Edwards appealed to the BIA and filed a motion seeking modification of his family violence sentence from the Georgia state court.11 By that time, Edwards had completed his twelve-month sentence, and his motion in the state court "focused exclusively on the immigration consequences of his 12-month sentence."12 Edwards' motion was not opposed, and the state court judge modified Edwards' already-served sentence from twelve months of probation to eleven months and twenty-seven days of probation. In his removal proceedings, Edwards challenged the classification of his crime as an aggravated felony and applied for asylum and withholding of removal. The Immigration Judge (IJ) found that Edwards' sentence, even as modified, amounted to a term of imprisonment of at least one year and
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was thus an aggravated felony under the INA. Based on this finding, the IJ denied Edwards' asylum application.13
Edwards brought his case before the BIA, asserting that the IJ erred in its interpretation of the state court order.14 After the BIA, applying Thomas, affirmed the IJ's order, Edwards petitioned the Eleventh Circuit for review. Edwards argued, inter alia, that the BIA erred in finding that Edwards was convicted of an aggravated felony under the INA. Edwards also challenged the validity of the Thomas decision, contending that the Attorney General's interpretation of the INA was unreasonable and that the Attorney General's use of adjudication, rather than rulemaking, was improper in this instance.15
The Eleventh Circuit rejected Edwards' arguments.16 First, the court held that the Attorney General's decision to overrule BIA precedent through issuing a decision in Thomas, as opposed to the use of rulemaking, was procedurally valid.17 The court noted that the Attorney General's decision was not a new rule to enforce but rather a correction of the BIA's prior misinterpretation of law.18 Accordingly, the Attorney General's issuance of a decision, instead of engaging in rulemaking, did not prevent the application of Thomas to Edwards' circumstances.19 Second, the court held that the Attorney General's decision in Thomas was enforceable.20 The court explained that the relevant statutory language in the INA was ambiguous as to whether an original sentence or a modified sentence should be controlling for determination of whether a crime is an aggravated felony.21 In consideration of this ambiguity, the court found the Attorney General's interpretation to be reasonable and therefore binding.22
The Eleventh Circuit considered the consequences of prior convictions on immigration proceedings in its review of an application for naturalization in Leonel v. Mayorkas.23 In that case, Morfa Diaz, a lawful resident with citizenship in the Dominican Republic, applied for naturalization in 2018. Morfa Diaz's application was denied based on a
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1996 conviction for the attempted sale of cocaine in violation of New York Penal Law (NYPL) section 230.39.24 United States Citizenship and Immigration Services (USCIS) determined that Morfa Diaz's 1996 conviction constituted an aggravated felony which would preclude him from ever meeting the good moral character requirement for naturalization.25
Morfa Diaz filed an administrative appeal with USCIS and, upon its rejection, filed a suit against the Secretary of the Department of Homeland Security and the Director of USCIS, arguing that the potential overbreadth of the 2020 version of NYPL § 230.39 precluded the interpretation of his prior conviction as an aggravated felony.26 The United States District Court for the Middle District of Florida disagreed with Morfa Diaz and granted the government's motion to dismiss. Morfa Diaz appealed to the Eleventh Circuit.27 After a detailed analysis of the version of NYPL § 230.39 in effect at the time of Morfa Diaz's conviction, the Eleventh Circuit concluded that it did constitute an aggravated felony.28 Accordingly, the district court's grant of the government's motion to dismiss Morfa Diaz's suit was affirmed.29
The Eleventh Circuit addressed another challenge to the impact of criminal convictions last year in K.Y. v. U.S. Attorney General.30 In that case, K.Y. had been convicted of traveling to meet a minor to engage in sexual conduct in violation of Fla. Stat. section 847.0135(4)(a),31 and K.Y. contended that the BIA erred in determining that her conviction was for a particularly serious crime.32 The court first established that determining whether a crime is "particularly serious" under the INA was not a matter of discretion for the Attorney General; instead, it remained a question of law subject to the Eleventh Circuit's review.33 The court then addressed the substance of K.Y.'s argument that her conviction was
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not a particularly serious crime because the crime did not involve the actual or intended use of force or violence.34 The Eleventh Circuit held that the actual or intended use of force is not a requirement to deem a crime particularly serious under the INA.35 Further, the Eleventh Circuit noted several factors supporting a finding that K.Y.'s crime was particularly serious: (1) the crime was directed at children, a particularly vulnerable population; (2) the mens rea required the perpetrator to knowingly attempt to solicit a person she believed to be a child to engage in sexual conduct; and (3) the targeted conduct, sexual abuse, was itself serious.36 In addition, the Eleventh Circuit considered particularly troubling attributes of K.Y.'s crime, including the extensive number of communications over several days with the person K.Y. believed to be a minor.37 Accordingly, the Eleventh Circuit found that the sum of these factors justified the determination that K.Y. was convicted of a particularly serious crime and, thus, subject to removal.38
B. The Right to Counsel and Due Process in Removal Proceedings
In Priva v. U.S. Attorney General,39 the Eleventh Circuit addressed arguments related to a noncitizen's Due Process rights as they apply to removal proceedings and reasonable fear interviews.40 Emmanuel Priva, a Haitian citizen, entered the United States in 2014 on an R-1 non-immigrant visa. In 2018, Priva was arrested for multiple counts of visa fraud and conspiracy to commit visa fraud, in violation of 18 U.S.C. sections 1546(a)41 and 371.42 After Priva's conviction and incarceration, the Department of Homeland Security issued Priva a Notice of Intent to Issue a Final Administrative Removal Order.43 The notice explained that Priva was removable based on his conviction of an aggravated felony under the INA and stated that Priva may be represented by counsel, at no expense to the government.44 Priva acknowledged receipt of the notice
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and requested withholding of removal, claiming that he would be subject to persecution if he returned to Haiti.45
Priva obtained counsel and subsequently sat for three reasonable fear interviews with his counsel present telephonically.46 During the interviews, Priva explained that he had been in the business of helping individuals from Haiti acquire visas to the United States, and after taking their money, he promised to pay any individuals back if he was unable to secure them visas. Priva stated that his assets were seized by the government after his arrest and that he now feared reprisal from individuals to whom he owed money but was unable to repay. In particular, Priva indicated that he owed money to over one hundred people in Haiti, including police officers and former police officers who he feared would harm him.47 The asylum officer found Priva credible but ineligible for withholding of removal based on Priva's failure to show that (1) he had any fear...
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