Block on Trump's Asylum Ban Upheld by Supreme Court
In a case that circles around the question of whether making terrorist threats is a crime of moral turpitude, the Fifth Circuit Court of Appeals moved against the majority convention and remanded the BIA case to be reviewed under a correct application of law.
This is a good opportunity for immigration lawyers to understand the applicable law for their next IJ hearing.
Omar Alberto Hernandez Removal
An immigrant appealed his cancellation of removal from the United States pursuant to federal law after Texas determined that he was convicted under that state's laws for crimes of moral turpitude: indecent exposure and making terrorist-like threats. Obviously, with his future on the line, he appealed to the Board of Immigration Appeals, which applied the "realistic probability" standard first outlined in the 2007 case of Gonzalez v. Duenas-Alvarez.
"Realistic Probability" Versus "Minimum Reading"
In the Gonzalez case, the court was faced with the issue of whether or not a California statute created a scenario of having to be applied outside of its generic description of a crime. If the petitioner could show a "realistic probability" of the state actually engaging in this in other cases like his own, he would be successful in casting doubt on the severity of his crime.
But the circuit court found two problems with the BIA's review of the case. First, it said, Gonzales has nothing to do with moral turpitude analysis as the Gonzales case was concerned with whether or not unusual conduct could be understood to be an aggravated felony under California law. Second, the circuit had never adopted the "realistic probability" approach before and had doggedly applied the "minimum reading" standard in determining the moral egregiousness of a crime. In the latter, the "minimum reading" of state's criminal statutes on the conduct would determine the proper category of crime.
The case was remanded back to the BIA.So, the reality is that the Board of Immigration Appeals will still have to deal with the question of whether or not a terroristic threat is a crime of moral turpitude. But this time, we're hoping for a more element by element reading.