ImmigrationProf Blog

Crimmigration: When A "Controlled Substance" Isn't A "Controlled Substance", Part 2

Yesterday, I introduced you to an 11th Circuit case (Said) that confronted the issue of whether a state-defined "controlled substance" met the federal definition of a "controlled substance" such that a noncitizen with a drug-related conviction would be removable. Today I bring you an 8th Circuit variation on the same topic: US v. Owen 51 F.4th 292 (8th Cir. 2022).

I learned about this case via a wonderful CLE put together by James H. Binger Center for New Americans at the University of Minnesota Law School. The program, Challenging "Controlled Substance" Offenses Under the INA in the 8th Circuit, should be available online soon.

In the meantime, let's talk Owen. Owen isn't an immigration case; it's an Armed Career Criminal Act (ACCA) case. Nonetheless, the key issue in Owen was whether the defendant's state drug convictions met the federal ACCA standard. Employing a categorical analysis, the Eighth Circuit concluded that the state statute "sweeps more broadly" than the federal due to the state definition of cocaine. Thus, the underlying convictions did not count as "serious drug offenses" under the ACCA.

To understand the mismatch between state and federal law, we head into the realm of organic chemistry. Haha. I'm not going to be doing that. Instead, I'm going to quote from the Owen decision directly:

Minnesota's all-inclusive definition covers “coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine, the salts and isomers of cocaine and ecgonine, and the salts of their isomers and any salt, compound, derivative, or preparation thereof that is chemically equivalent or identical with any of those substances.” Minn. Stat. § 152.01, subd. 3a (emphasis added). By specifically mentioning “the ... isomers of cocaine,” the definition sweeps in any substance with “the same chemical composition” as cocaine, even if it has a different “structural form.” Dictionary of Science and Technology 1151 (1992) (explaining chemical isomerism); see also United States v. Phifer, 909 F.3d 372, 376 (11th Cir. 2018) (defining isomers as “molecules that share the same chemical formula but have their atoms connected differently, or arranged differently in space” (brackets omitted)).

Cocaine has multiple isomers. See 1 Gerald F. Uelmen & Alex Kreit, Drug Abuse and the Law Sourcebook § 5:23 (2022). The problem for the government is that federal law criminalizes just two: optical and geometric isomers. 21 U.S.C. §§ 802(14), 812, sched. II(a)(4); 21 C.F.R. § 1308.02. Minnesota's *296 statute, by contrast, bans them all.

Interesting, both Said and Owen spend time discussing the "realistic probability" argument. As in, does the defendant have to prove a "realistic probability" that possession of these other isomers is needed in order to find a categorical mismatch. The Eighth and Eleventh Circuits both said no, saying that the realistic probability test is only for resolving ambiguities. When the statute itself is unambiguous: "The 'realistic probability,' ... is 'evident from the language of the statute itself.'

I'm going to be real with you. I attended this CLE. I listened to John Bruning (Supervising Litigation Attorney, The Advocates for Human Rights) explain isomers. Pictures were involved. I still felt like a kid in a Charlie Brown comic where John (the adult) was just a muted trombone playing. But, I did get this, which I will absolutely be incorporating into my teaching: Not every state drug conviction will trigger immigration consequences. Look to see if the definitions of the applicable controlled substance match. And get scientific help to make that determination as needed.

-KitJ

Crimmigration: When A "Controlled Substance" Isn't A "Controlled Substance", Part 1

I had the opportunity today to attend a Webinar/CLE featuring crimmigration expert Mary Kramer (author of Immigration Consequences of Criminal Activity.). It was titled When Victim-Clients Commit Crime: An Introduction to Immigration Consequences of Common Crimes. I'm told this will be made available online in the near future.

This event introduced me to a fabulous 11th Circuit decision from 2022 that would make an excellent real-o-thetical for your crimmigration course or crimmigration segment of your larger immigration class. The case is Said v. U.S. Attorney General, 28 F.4th 1328 (11th Cir. 2022). (Can we pause for a moment to talk about how crazy it is that we're up to F.4th??).

The issue in the case was whether a conviction under Fla. Stat. § 893.13(6)(a) amounted to a "controlled substance offense" for purposes of immigration law.

Here is the Florida statute:

(6)(a) A person may not be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. A person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

That seems like a pretty straightfoward problem under 212, doesn't it? After all, under INA § 212(a)(2)(A)(i)(II), "a violation of... any law or regulation of a State ... relating to a controlled substance (as defined in section 802 of title 21)" renders the noncitizen inadmissible. This might be where you would pause with a class and brainstorm ideas about how you might challenge whether the Florida law in fact matches the federal law.

Here's what the Eleventh Circuit saw: It asked whether the "controlled substance" referenced in the Florida statute matched the federal definition of a controlled substance.

Under federal law, 21 U.S.C. § 802(16), marijuana includes:

[A]ll parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. [Marijuana] does not include ... the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

However, Florida's law is broader. It defines marijuana as “all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” Fla. Stat. § 893.02(3) (emphasis added).

Because the "plain language" of the Florida statute included substances beyond what is federally controlled, the Eleventh Circuit found the state law overbroad and the noncitizen could not be considered to have a "controlled substance" conviction under 212.

-KitJ

Real Housewives of New Jersey: Immigration Update

There's no shame in admitting it, I know that some of y'all immprofs are using the Real Housewives of New Jersey to teach crimmigration. Specifically, the sentencing and deportation of Giuseppe “Joe” Giudice.

Have you followed the key updates since his 2019 deportation?

• 2019: deportation
• 2020: appeal denied
• 2021: files for waiver of inadmissibility
• 2021: moves from Italy to the Bahamas to find work, be closer to daughters in US

So what's the latest?

His oldest daughter, Gia Giudice (22), will be graduating from Rutgers this Spring and will be joining, you guessed it, an immigration law practice! To be clear, she's not graduating law school -- she's only 22! But she plans to attend law school in the future. For now she'll be getting experience working at a law firm. (Hey, Rose, looks like Rutgers Law has some recruiting to do!)

-KitJ

Teaching Corner: Normalizing Struggle

Professor Christopher

We immprofs necessarily spend a lot of time keeping up with substantive law that is shockingly fluid compared to other fields of study. As my favorite immigration meme of all time bemoans "law changed half an hour ago." So true.

Sometimes, however, we need to step back and think about the "prof" half of our moniker. We don't just need to keep up with the state of immigration. We need to keep up with the state of teaching.

On that front, I heartily recommend an article by Cassie Christopher (TTU) called Normalizing Struggle, 73 Ark. L. Rev. 27 (2020), which I just had occasion to re-read. Cassie's central thesis is this:

Legal educators need to acknowledge that students struggle, to expect it, and to convey to students that their struggle is normal. In fact, it’s productive— learning is hard, and lawyers learn and struggle throughout their careers.

Her paper is well organized and thorough. Here's the preview:

Part I analyzes the ways in which traditional legal education disapproves of student struggle and conflates struggle with failure. This marginalizes and alienates students who don’t succeed on the first try, an unnecessary overreaction. Part II discusses the pervasiveness of struggle among law students. Part III is for law students; it seeks to reframe struggle generally as not only normal but productive, and it demonstrates the effectiveness of study strategies that encourage struggle. Part IV is for the individual law professor. This section reviews the literature on current legal pedagogy and illustrates how the best practices for a law professor include creating opportunities for students to struggle with material. Part V makes broader recommendations as to how law schools can normalize struggle, treating it as an ordinary and expected part of learning to be a lawyer.

-KitJ

BIA's Reading Room for Unpublished Decisions is LIVE!

Check it out, the BIA's reading room for unpublished decisions is now live. Here is the link: https://foia.eoir.justice.gov/app/ReadingRoom.aspx. And here's the NYLAG press release:

Historic Settlement Levels the Legal Playing Field for Immigrant Advocates 

 

Immigrants, Immigration Lawyers Win Access to Secret Case Law 

 

NEW YORK – A federal district court in New York on Wednesday evening ordered the U.S. Board of Immigration Appeals to establish an online library of its unpublished opinions – the result of a settlement between the New York Legal Assistance Group (NYLAG) and the U.S. Department of Justice. By giving immigrants and their lawyers full access to the Board’s opinions, the settlement will allow them to fight removal and other adverse actions with the same knowledge of case law that attorneys representing the government already have. Public Citizen Litigation Group served as lead counsel for NYLAG in the case, along with NYLAG’s own lawyers. 

“This historic settlement will change the practice of immigration law in this country,” said Beth Goldman, NYLAG president and attorney-in-charge. “After our crucial victory in the Second Circuit, the Board has agreed to stop keeping its decisions secret – a practice that, for years, has put immigrants at an unfair disadvantage when asserting their rights in court. Opening up these opinions to the public will finally help even the playing field between immigration advocates and their adversaries, and it will allow the dedicated immigration practitioners at NYLAG and around the country to do their best work advocating for their clients. We are pleased that the Board agreed to make this move toward transparency without the need for further litigation.” 

The Board of Immigration Appeals is the administrative body within the U.S. Department of Justice (DOJ) that adjudicates appeals from decisions made by immigration judges. Most of the Board’s tens of thousands of decisions each year are kept secret from the public. Only a handful of opinions are made publicly available online, and a small number of additional opinions are available in hard copy at a law library in Falls Church, Virginia. 

The Freedom of Information Act (FOIA) requires that agencies make all their opinions and orders available to the public over the internet, but the Board of Immigration Appeals has ignored this requirement for years and designated almost all the opinions it issues in immigration cases as unpublished. The case arose when NYLAG, which provides free legal services to immigrants in New York, requested that the Board post all of its opinions in immigration cases in its electronic reading room. When the request was denied, NYLAG and Public Citizen Litigation Group filed suit to require the Board to comply with the law.  

Under the settlement approved Wednesday, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October and will be phased in over several years. The settlement ensures that NYLAG and Public Citizen will be able to monitor the Board’s compliance and, if problems arise, seek the help of the court.  

Public Citizen’s Scott Nelson, the lead attorney for NYLAG in the case, added: “This case is a tremendous advance for freedom of information in three ways. First, to get this far, we had to win a landmark decision in the Second Circuit Court of Appeals recognizing that people can sue under FOIA to force agencies to comply with their obligation to publish records online. Second, the online library that this case will create will be of great use to immigrants and their lawyers. Third, this settlement will help DOJ and its components serve as a model of FOIA compliance, as agencies devoted to the rule of law should be.” 

-KitJ

U.S. Immigrants and Emigrants

WaPo and NYT have competing stories of great interest today.

The NYT reports that nearly 1 million migrants became U.S. citizens in 2022: a 15-year high. There are another 670,000 naturalization applications pending! The NYT article also clued me into changes coming w/r/t naturalization that hadn't been on my radar. Did you know that USCIS is redesigning the oral portion of the natz test? They plan to ask applicants "to describe three photographs of everyday activities, the weather or food" with the goal of testing "ordinary use of English."

Meanwhile, WaPo has an absolutely fascinating piece about U.S. emigration -- looking at where Americans land around the globe when the choose to leave this country. Do you know the largest receiving country? Go ahead. Take a moment to think. Yup, it's Mexico. And most of the Americans living in Mexico are children of Mexican citizens, so-called "accidental Americans." (Not sure how I feel about that particular moniker.) Where do others go? "Canada, the United Kingdom, Germany, Israel, Australia and other advanced economies."

The WaPo article also has this wonderful nugget -- did you know that a number of Americans seek asylum overseas each year? How many, do you think? Turns out the number for 2022 was 426, according to the U.N. Refugee Agency. (They also headed for Germany, the U.K. and Canada.)

Data regarding emigration is somewhat sketchy. As WaPo notes "The U.S. government does not keep a close count of Americans who have left the country; few governments do." The data cited in the article comes from a variety of sources -- researchers and international organizations.

-KitJ

Opting Out of Border Biometrics, A Twitter Tale

Here's a Twitter tale about opting out of border biometrics that immprofs should flag:

Since folks asked what happens whenever I opt out of facial recognition, I documented it for you while going through US border patrol.

Coming out of the flight there was a row of kiosks for facial biometric capture. There were no people. Just kiosks. So I kept walking.

🧵

— YK Hong (@ykhong) December 28, 2022

-KitJ

Refuge Sur Place Real-o-thetical

When can the act of applying for asylum in the United States become the basis for a claim for asylum in the United States? How about when the U.S. government publishes the name, case status, and location of the asylum applicant on its public website?

Barron's is reporting that, on Monday, the names, case status, and detention locations of some 6,000 asylum applicants were inadvertently uploaded to the ICE website and remained online for roughly 5 hours. Barron's writes: "The information reportedly included details about people fleeing authoritarian regimes in China, Russia and Iran, as well as those trying to escape violent criminal gangs in lawless parts of the world."

You have your next classroom hypo!

-KitJ

 

Stand Up Routine Guaranteed To Make You Scream Nooooooooo!!!!!

Jimmy O. Yang is an actor, comedian, writer and producer. I guarantee you've seen him before. The only question is whether you are more of a Love Hard or a Space Force kind of Netflix watcher.

A snippet of his standup recently came across my feed. And, let me tell you, I was aghast.

@full.celebs Going To Mexico as an Asian || Part 1 || #foryou #america #jokes #comedу #fyp #foryou #jimmyoyang #funny ♬ original sound - full.celebs

Wow. Just wow. This man is l.u.c.k.y.

Let's take a look at INA § 237(a)(3)(D)(i), 8 U.S.C. § 1227(a)(3)(D)(i), shall we?

Any alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any Federal or State law is deportable.

And that's why I started, quite literally, screaming "noooooo!!!!!" at my screen.

But, all's well that ends well I suppose. Jimmy is now a naturalized U.S. citizen. (Hence, why he's comfortable telling this joke.) And this clip shall forever live in my arsenal for teaching about false claims to U.S. citizenship.

-KitJ

Compelling Update from Martha's Vineyard

This video gave me literal chills. The outrage that is apparent in the voice of attorney Rachel Self, who speaks for the majority of this clip, is palpable. I think if you're looking to talk about this topic in class, this would be a fantastic video to kick of discussion.

Note Self's comments regarding how DHS officials completed paperwork -- filling in random addresses of homeless shelters in states far from where they knew the migrants were sent. That's particularly interesting given Ingrid's post from earlier today regarding a generalized practice of listing erroneous addresses (such as nonprofits without a connection to the individual) on migrants' asylum paperwork.

-KitJ

PERM Flowchart

Immprof Lenni Benson (NYLS) recently shared this gorgeous PERM flowchart: 

If you prefer, this downloadable pdf version of the flowchart has additional footnote material. Ooooh, footnotes.

I don't know about you, but my students can't get enough of flowcharts. So it's nice to add this one to the ppt deck when I'm talking about labor certification.

-KitJ

Teaching Family-Based Immigration: Redux

Am I catching you before you cover family-based immigration this semester? I hope so.

I'm writing to remind you about Ming's June 2022 post about the death of the Colorado clerk who issued a marriage certificate to Adams and Sullivan (of the Adams v. Howerton decision from the 9th circuit that many of us utilize). Her post offers excellent information to really bring that case to life for students.

While I've got your attention, I'll also re-point you to my 2017 post with links to sources for teaching about family-based immigration.

-KitJ

EU Restrictions on Visas for Russians in Wake of Ukraine War

Swapnil1101, Public domain, via Wikimedia Commons

The BBC reports that E.U. foreign minsters have agreed to take steps that will make it harder for Russian citizens to travel to the European Union. This, of course, is in response to the war between Russia and the Ukraine wherein the E.U., like the U.S., is backing Ukraine.

No one seems particularly happy with the move. Russia is annoyed (naturally). Ukraine and some EU members wanted a total ban on travel, not measures that merely make getting a visa a longer and more expensive process.

I found this news particularly interesting as I've recently finished my immigration law coursework on Chae Chan Ping and the constitutional power to regulate U.S. immigration. The story made me think about the war powers provision of our own constitution, its authorization that Congress shall have power to declare war, and how that power might intersect with immigration decisions during time of war (even if it's not a war we are officially a party to).

-KitJ

Attention Empirical Researchers: DOL's Employment-based Immigration Data

Immprof Lenni Benson (NYLS) recently introduced me to this truly epic resource for empirical researchers: The U.S. Department of Labor's collection of employment-based data.

As the DOL characterizes the data, you'll find:

• Selected statistics providing cumulative quarterly data by major immigration program;
• Cumulative quarterly and fiscal year releases of program disclosure data; and
• Historical fiscal year annual program and performance report information.

Y'all... there is SO. MUCH. DATA.

You want to see who's filing and getting PERM approvals? Done.

You want to see who's filing and getting H1Bs? H2As? H2Bs? E3s? It's all there.

Now, fair warning: The downloadable Excel spreadsheets are so huge just one pretty much took down my work laptop. But for those of you data monsters out there, I've no doubt you're prepared to take this on, dive into the information, and come out with an absolutely fascinating story that I, for one can't wait to read.

Happy digging!

-KitJ

WaPo Short Video Re: Pregnant Ukrainian Refugee

If you like super short video clips for class, this one is interesting. It's only a minute and a half long!

The video gives a very brief introduction to one Ukrainian woman, seven months pregnant, who fled the country's war. It doesn't explain, among other things: (1) why she traveled to the U.S. via Mexico, (2) why she went through 8 countries before the U.S., (3) where her husband is, (4) how it is that her older daughter is with her, (5) what role the Temple Emanu-El synagogue played in her journey. You could treat this video like a fill-in-the-blank exam after completing your work on refugees and asylees -- asking students to provide likely answers to those questions and more.

(And, hey, some of the questions are answered by this, longer, 8:30 min. video.)

-KitJ

Teaching SIVs

For several years now, I've been using this John Oliver clip to teach students about SIVs for wartime translators. It's amazing. I particularly like this segment because, as I've blogged about before, a translator appears on the program and talks with a very flat affect about the murder of his father and the kidnapping of his young brother. I've found this to be a good introduction to discussion of how client trauma presents in wildly different ways and in ways that students may not be expecting.

I plan to continue to use this clip in 2022 because, as you know, the U.S. is still processing SIV applications for wartime translators.

This year, however, I'm adding a second video. Immprof Phil Schrag (Georgetown) recently shared a video about the rescue of an Afghani translator who worked closely with Schrag's son (Sam Lerman -- he's in the video) at Bagram Air Force Base. The video does an amazing job of capturing the chaotic U.S. pull-out from Afghanistan. And it's a terrific leaping off point for discussing both the legal hurdles facing translators who made it out but who still need to navigate the SIV process as well as the hurdles facing those who remain in Afghanistan.

-KitJ

A Comparative Law Example For Public Charge, Inspection

John Green is a well-known American author. I've only read two of his books -- The Fault in Our Stars and Turtles All the Way Down -- but aspire the read the remainder as well. You make recognize the names of some of his other works, which have been made into hit movies, including Paper Towns and Looking for Alaska.

Suffice it to say, he's a big deal.

And, yet.

In this fabulous TikTok, John Green talks about why it's such a pain for him to travel into Canada. Short answer: Because years ago he was denied entry for insufficient funds. And now he's always, always subject to secondary screening.

@literallyjohngreen Reply to @bookishbrittany ♬ original sound - John Green

I love this video so much. It is DEFINITELY entering the cannon of videos that I show in class. I will probably use it when talking about inspection at the border. But I might also use it when discussing public charge screening. It's a total winner.

-KitJ

Lil Wayne: A Crimmigration Tale

Lil Wayne is an American rapper. So you might be wondering why I'm posting about a U.S. citizen on an immigration blog. 

Here's the thing: Lil Wayne is interesting from an immigration perspective because of his inability to get a visa to play/tour in the UK. Back in 2009, Lil Wayne pled guilty to a weapons charge stemming from the 2007 discovery of a loaded gun on his tour bus. He was sentenced to 12 months in prison, though he served only eight months due to good behavior.

Lil Wayne's latest application for a UK visa was denied in June 2022. (He wanted to perform at the Strawberries & Creem festival.) The UK's Home Office (their immigration folks) told Rolling Stone magazine: “Any individual who has been sentenced to a custodial sentence of 12 months or more must have their application refused.”

All-in-all, this tale strikes me as a fun comparative law real-o-thetical to cover in your crimmigration class. You could flip the facts -- make Lil Wayne a UK citizen with the same gun conviction. What would the results be for a US visa to play at a music festival?

Moreover, it would be an opportunity to play one of my all-time favorite SNL clips--Lil Wayne and Eminem on Their Valentine's Day Single:

-KitJ

Immigration Law: An Open Casebook

I am thrilled to introduce Immigration Law: An Open Casebook, the first open-source/open-access casebook on U.S. immigration law. I designed this book to serve as the principal text for a broad-based immigration law course as well as a specialty course on crimmigration.

The book provides explanations and primary source readings regarding immigration law in the United States. Topics include the constitutional bases for regulating immigration, the contours of the immigration bureaucracy, the admission of immigrants and nonimmigrants into the United States, undocumented migration, the deportation and exclusion of noncitizens, refugee and asylum law, immigration detention, federal and state immigration crimes, border and interior immigration enforcement, and the law concerning citizenship and naturalization.

The book has a Creative Commons license that allows adopters to add to, delete from, abridge, rearrange, and alter the work as best fits their courses. (See "Notices" inside the book.) The project is similar to open access casebooks offered by CALI's eLangdell bookstore.

The book is available for free download at this link. It is available in both .pdf and .docx format. Paperback versions of the book are available for purchase on Amazon for under $14.

Questions? Adopting the book? Email me: kit.johnson at ou.edu.

-KitJ

Anti-Racist Curricular Resources from Cardozo

As part of an effort to help faculty identify course specific material related to racial justice, Cardozo Law School has developed a new hub for Anti-Racist DEI Curricular Resources.  The resource is now available to professors at all institutions.  The resource is organized by common law school classes and primarily includes readings focused on the intersection of race (and other DEI topics) and that class.  I looked over the Immigration Law and Constitutional Law sections and found some helpful ideas. Those teaching courses that have less established connection may find it especially helpful.

The Hub Includes:

• Resources for 1L Courses Recommended readings and other course materials for Civil Procedure, Constitutional Law, Contract Law, Criminal Law, Property Law and Torts.
• Resources for Upper-Level Courses Recommended readings and other course materials for Upper-Level courses including Administrative Law, Alternative Dispute Resolution & Mediation, Bankruptcy Law, Clinical Education, Contract Drafting, Criminal Procedure, Environmental Law, Evidence, Family Law, Federal Courts, Human Rights Law, Immigration Law, Insurance Law, Intellectual Property Law,  New York Law & Courts, Tax Law and Wills, Trusts & Estates.
• Professional Development Resources For Professors
• Background Materials 

MHC (h/t Peter Markowitz)