August 2019 Update

August 2019 Update

Nevada drugs are not federal “controlled substances. Because the Nevada controlled substance schedule is overbroad and indivisible, no conviction that references that schedule is a controlled substance offense for immigration purposes. Villavicencio v. Sessions, No. 13-74324 (9th Cir. Sept. 11, 2018).

California robbery, Pen C § 211, is an AF as theft, but not as a crime of violence, if a sentence of a year is imposed. Matter of Delgado, 27 I&N Dec. 100 (BIA 2017) (is an AF as theft), US v. Garcia-Lopez (9th Cir. September 2018) (it is not an AF as a crime of violence under 18 USC § 16(a) because it can be force applied by accident).

The federal government is enjoined from terminating temporary protected status for Sudan, Haiti, El Salvador, and Nicaragua. Beneficiaries retain lawful status and valid employment authorization documents during the pendency of the proceedings. Ramos v. Nielsen, No. 18-cv-01554-EMC (N.D. Cal. Oct. 3, 2018) See

Ninth Circuit upheld a district court’s nationwide Temporary Restraining Order that requires DHS to continue to accept DACA renewal applications. Regents of the Univ. of Cal. v. United States Dep’t of Homeland Sec., 908 F.3d 476, 485 (9th Cir. 2018). For more information, see

A nationwide Temporary Restraining Order enjoins the Trump Administration from restricting asylum grants only to those who enter the U.S. at a port of entry. See East Bay Sanctuary Covenant et al v Trump et al (N.D. Cal Nov. 19, 2018) at

The Supreme Court again addressed the definition of a crime of violence, which could result in DHS charging that Pen C §§ 243(d) or 236/237 by violence is a crime of violence. See Stokeling v. United States (Jan. 15, 2019) at See ILRC Practice Advisory at

The Ninth Circuit withdrew its decision in Lorenzo v. Sessions, which had held that the California definition of methamphetamine is broader than the federal definition and therefore a conviction under H&S C § 11378 involving meth is not a controlled substance offense. The court issued an unpublished decision with the same result, but this will give ICE the opportunity to argue against the chemical analysis underlying Lorenzo. This makes a plea to meth even less secure. For the published opinion withdrawing Lorenzo v. Sessions, see For the unpublished opinion reaffirming that Mr. Lorenzo is not deportable under the controlled substance ground due to how meth is defined, see For the ILRC advisory on the Lorenzo withdrawal, see

Ninth Circuit held that the term “crime involving moral turpitude” is not unconstitutionally vague, as per Supreme Court precedent. The concurring opinion by Judge William Fletcher strongly suggested that the Supreme Court should revisit the issue in light of the lack of any “coherent criteria” for determining when a non-fraud offense would be deemed a CIMT. See Islas v. Veloz (Feb. 4, 2019) at

Ninth Circuit adopted a narrower interpretation of “single scheme of criminal conduct” in the context of multiple crimes involving moral turpitude, granting Chevron deference to BIA decisions on the issue. It found that a non-citizen did not qualify for the single scheme exception when over the course of some hours he forced the victims to commit sexual acts, because these were “complete, individual, and distinct crimes.” See Szonyi v. Whitaker (Feb. 13, 2019), and see Judge Fisher’s dissent, at

Ninth Circuit reaffirmed that sentencing enhancements are counted as part of the total sentence imposed. It found that a non-citizen who had been sentenced to four years for a PC § 273.5 conviction, plus an additional one-year enhancement for use of a deadly weapon under PC § 12022.5(b)(1), had been sentenced to a total of five years for an aggravated felony, which made the conviction a per se “particularly serious crime.” See Mairena v. Barr (Mar. 7, 2019) at

Supreme Court reverses Preap: Mandatory detention applies even if the person did not go directly to ICE from jail. Immigration law provides that certain noncitizens will be detained without possibility of bond. This includes most people who are deportable for crimes (were admitted to the U.S. and come within the crimes deportation grounds, with some exceptions) or inadmissible for crimes (were not admitted to the U.S. and come within the crimes inadmissibility grounds). INA 236(c)(1), 8 USC 1226(c)(1).

The Ninth Circuit had held that based on the language of the statute, mandatory detention only applied if the noncitizen was taken directly to ICE custody from criminal custody that was based on conviction of one of the triggering offenses. This meant that many people, including people with old deportable or inadmissible convictions, were not subject to mandatory detention. The Supreme Court reversed the Ninth Circuit and thus broadly extended who is subject to mandatory detention. See Nielsen v. Preap (March 19, 2019) at

For more on mandatory detention, see ILRC, Practice Advisory: How to Avoid Mandatory Detention (May 2018) at This advisory will be updated soon to reflect the Supreme Court decision in Preap and other developments in mandatory detention litigation.

2019-12-05T16:37:32+00:00Updated August 4th, 2019|