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On October 2 and 3, the Bar Association of the Fifth Federal Circuit with the LSU Paul M. Hebert Law Center,  will host the 2017 Annual Appellate Advocacy Seminar in New Orleans.  Cost is $150 for 10.25 hours of Continuing Legal Education, including an hour of Professionalism and an hour of Ethics.


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The Daily Commentary (sample)

Sample case reviewed on September 19, 2017.
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Laryea v. Sessions No. 15-60722

http://www.ca5.uscourts.gov/opinions/pub/15/15-60722-CV0.pdf

Before DAVIS, GRAVES, and COSTA, Circuit Judges.
(PER CURIAM).

Petition for Review GRANTED; BIA’s decision VACATED and REMANDED. (September 12, 2017).

Posted in Immigration

 

Henry Kpani Laryea, a native and citizen of Ghana, was admitted to the United States in 2002 on an F-1 nonimmigrant student visa. He remained in the United States without authorization following his visa’s expiration in 2008. In July 2011, Laryea pleaded guilty to evading arrest, a Class A misdemeanor, in violation of Texas Penal Code § 38.04 (2011), and was sentenced to 18 days in jail. The Department of Homeland Security initiated removal proceedings pursuant to 8 U.S.C. § 1227(a)(1)(B) against Laryea for remaining in the United States longer than his visa authorized. Through counsel, Laryea admitted the factual allegations in his Notice to Appear and conceded removability, but indicated his intention to apply for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Immigration Judge (“IJ”) determined that § 38.04 was divisible and applied the modified categorical approach to determine whether the conduct underlying Laryea’s conviction was a crime involving moral turpitude (“CIMT”). After reviewing several state court documents, including a police report filed after Laryea’s encounter with law enforcement that led to his indictment, the IJ concluded that Laryea’s conduct, fleeing from peace officers attempting to lawfully arrest him, was morally turpitudinous and constituted a CIMT under 8 U.S.C. § 1227(a)(2), which pretermitted his application for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(c).

Laryea appealed to the Board of Immigration Appeals (“BIA”). The BIA vacated the IJ’s decision and remanded the case, holding that the IJ erred in (1) finding that § 38.04 was divisible without first considering whether all of the offenses under the statute are categorically a CIMT; and (2) relying on the police report, a document not part of the record of conviction in this case, to determine Laryea’s conviction constituted a CIMT. On remand, the IJ held that § 38.04 was categorically a CIMT because it involved conduct that reflected “an intentional attempt to evade responsibility,” which constituted a CIMT under Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007) (holding that a conviction for failure to stop and render aid following a fatal car accident is a CIMT). While Garcia-Maldonado involved a different crime, the IJ reasoned that intentionally fleeing from a lawful arrest was, at bottom, an evasion of responsibility and therefore § 38.04 categorically constituted a CIMT. Alternatively, the IJ held that if § 38.04 were not categorically a CIMT, it would still be one under the modified categorical approach. The IJ pointed to Pulido-Alatorre v. Holder, 381 F. App’x 355, 358-59 (5th Cir. 2010) where it was held that evading arrest with a vehicle under a prior version of § 38.04 was a CIMT. The IJ looked to the appropriate documents in Laryea’s record of conviction and concluded that he was convicted under the portion that criminalizes evading arrest with a vehicle, the same as in Pulido-Alatorre, and thus was convicted of a CIMT. Laryea once again appealed the IJ’s decision to the BIA. The BIA affirmed the decision of the IJ, finding that § 38.04 to be categorically a CIMT because “[t]he gravamen of this offense is the intentional and affirmative obstruction of, or interference with, a police officer’s exercise of the duty to make a lawful arrest.” Relying on Garcia-Maldonado, the BIA held that this “intentional evasion of responsibility for criminal acts” constituted a CIMT. Because the BIA held that Laryea’s conviction was categorically a CIMT, it failed to reach his arguments relating to the modified categorical approach. Proceeding pro se, Laryea filed a petition for review from the Fifth Court. Laryea’s primary argument on appeal was that § 38.04 was divisible and the BIA should have applied the modified categorical approach to determine whether his crime of conviction is a CIMT.

Laryea was convicted of a Class A misdemeanor under § 38.04. Under this statute, a person evades arrest “if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.” Holding that § 38.04 was not categorically a crime involving moral turpitude, the Fifth Circuit granted Laryea’s petition, vacated the BIA’s decision, and remanded for further proceedings. The Court first found that § 38.04 was a divisible statute because its subparts articulated different crimes. Using the modified categorical approach, the Court found that Laryea was convicted for fleeing from a lawful arrest, which was not a CIMT. The Attorney General relied on Garcia-Maldonado, a case that involved a different crime, for the general proposition that intentional evasion of responsibility for criminal acts is a CIMT. Garcia-Maldonado found that failure to stop and render aid under § 550.021 of the Texas Transportation Code was a CIMT for immigration purposes. Because Laryea intentionally evaded responsibility by fleeing from a lawful arrest, the Attorney General argued, his conviction under § 38.04 was a CIMT. Disagreeing, the Fifth Circuit found Garcia-Maldonado distinguishable, stressing that Garcia-Maldonado was convicted of intentionally leaving the scene of a serious accident that he knew had occurred. “Once a driver knows he was involved in an accident, he necessarily knows it is wrong to leave, or at the very least, to leave without attempting reasonable assistance.” Garcia-Maldonado, 491 F.3d at 290. “[F]ailure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude.” Id. The Court concluded that the conduct criminalized under § 38.04(a), even to the extent it reflected an intentional evasion of responsibility for criminal acts, did not, without more, rise to this level of moral turpitude. The Court’s conclusion was consistent with the following state court decisions. Those states that allow impeachment of witnesses with morally turpitudinous convictions generally find that resisting, fleeing, or evading arrest is not a CIMT. Finley v. State, 661 So. 2d 762, 765 (Ala. Crim. App. 1995) (concluding that “resisting a police officer” is not a CIMT); Barge v. State, 568 S.E.2d 841, 845 (Ga. App. 2002) (“The misdemeanors, fleeing an officer and obstruction of an officer, do not fit within the definition of crimes of moral turpitude.”); State v. Hall, 411 S.E.2d 441, 443 (S.C. App. 1991) (holding that “non-violent resistance, does not constitute a crime of moral turpitude”); Kneeland v. State, 2017 WL 1535103, at *4 (Tex. App.–Beaumont Apr. 26, 2017).

On Petition for Review of an Order of the Board of Immigration Appeals.
Attorney for Respondent – Dawn S. Conrad, Washington, DC

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