Aggfel & CIMT Victory in Arlington Immigration Court

We prevailed in a long-fought case this week in the Arlington Immigration Court. The Immigration Judge granted our motion to terminate proceedings, agreeing that our client’s conviction in Virginia for attempted sexual battery was neither an aggravated felony nor a crime involving moral turpitude (CIMT), and that he is not deportable as result of the offense. (IJ Decision – redacted.) But that’s hardly the entire story …

In September 2008, our client Y— pled guilty and was convicted of attempted sexual battery in violation of Va. Code §18.2-67.5(c), sentenced to 11 months imprisonment (all suspended), plus 1 year of supervised probation. In March 2010, he was arrested by ICE and sent to Hampton Roads Regional Jail. DHS charged him with (1) aggravated felony “sexual abuse of a minor” and (2) CIMT within 5 years of admission. He appeared for four consecutive master calendar hearings, during which the government sought to introduce new evidence and just delayed the proceedings, before the family hired us the day before the fifth MCH. We stayed up late preparing a lengthy motion for bond redetermination, arguing that his offense did not qualify as an aggravated felony, thus he wasn’t subject to mandatory detention and should be released on bond, and we filed and argued it the next day. The IJ agreed, rejected the aggfel charge, conducted a bond hearing, and ordered Y— released on $10K bond. The very next day, DHS not only appealed the IJ’s bond order, it also invoked the “automatic stay” under 8 C.F.R. §1003.19(i)(2) in order to prevent our client from bonding out of ICE custody.

Certain that Y— was not subject to mandatory detention, we promptly filed a writ of habeas corpus in the US District Court for the Eastern District of Virginia, challenging our client’s continued custody under the automatic stay provision. We argued that 8 C.F.R. §1003.19(i)(2) is ultra vires to the statute, because it grants DHS unchecked ability to override an IJ’s bond decision under INA §236(a), without having to demonstrate why continued detention is warranted. At the next MCH one week later, DHS relented and withdrew the automatic stay. The family posted bond and Y— was released from ICE custody after a 2-month ordeal. But DHS persisted with the bond appeal, insisting that our client’s conviction was an aggravated felony.

The Board of Immigration Appeals disagreed (BIA Decision – redacted.) The Board agreed with us that under the categorical approach, Y—’s conviction is not an aggravated felony because the Virginia statute under which he was convicted lacks an element requiring that the victim be a minor, or specifying the age of the victim. The BIA then remanded the case to the Immigration Court. Having lost on the aggfel charge, DHS turned its focus to the CIMT ground of deportability. The government argued that although neither the categorical nor the modified categorical approach reveals that Y—’s offense is a CIMT, under Step Three of Matter of Silva-Trevino, the IJ should consider evidence from outside the record of conviction that purportedly demonstrated our client’s conduct was morally turpitudinous.

In October 2011, we filed our first motion to terminate, arguing that Silva-Trevino was wrongly decided because it conflicts with Fourth Circuit law, Supreme Court jurisprudence, and decades of adherence to the traditional categorical and modified categorical approach. DHS did not respond. After the Fourth Circuit rejected Silva-Trevino in Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012), we filed a supplemental motion to terminate based on intervening precedent. Again DHS did not respond, so we filed a notice of non-opposition, urging the IJ to rule on our long-pending motion to terminate. On the day of Y—’s next MCH in May 2012, DHS filed its brief in opposition, arguing now that attempted sexual battery in Virginia is categorically a CIMT. Despite having previously conceded that moral turpitude could not be discerned until Silva-Trevino Step Three, the government now urged the court to find that Y—’s conviction is a CIMT at Step One, because “moral turpitude is intrinsic to all offenses that have a realistic probability of being prosecuted” under the Virginia statute.

We filed one more lengthy brief in opposition, challenging the government’s categorical argument, maintaining that application of the “realistic probability” test articulated in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) – which was adopted by Silva-Trevino – was improper, and noting that DHS cited no authority for its contention that every conviction under Va. Code §18.2-67.5(c) is inherently a moral turpitude crime. Again DHS did not reply, and we anxiously anticipated a ruling at the next MCH in November.

But the IJ was finally persuaded and apparently didn’t need to hear any more. He granted our motion to terminate, found that DHS had failed to sustain its charges of removability, and terminated proceedings. After a 2½ year struggle, including seven hearings in Immigration Court, a failed DHS appeal to the BIA, habeas corpus proceedings in ED Va., and numerous rounds of briefing and re-briefing, we finally prevailed. Our client can now move on with his life, refocus on work and family, and put this agonizing chapter behind him. A very satisfying victory for the Benach Collopy team.

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