Category Archive Deportation Removal

ByPhillip Kim

Immigration Judges Approved 57% of Deportation Cases

During the first ten months of FY 2016, immigration judges have determined that 96,223 noncitizens against whom Homeland Security sought removal orders were entitled to remain in this country. By the end of this fiscal year this pace is on track to surpass the record set last year of 106,676 noncitizens that the court found could remain in the U.S. These outcomes account for 56.8 percent of all cases that judges have decided so far this year.

One in four individuals (25%) allowed to stay was from Mexico. Over four out of ten (44%) were from the three Central American countries — El Salvador, Guatemala, and Honduras — where in recent years large numbers of unaccompanied children and women with children have come to this country seeking asylum. These figures are based upon case-by-case court records updated through the end of July 2016 obtained and analyzed by the Transactional Records Access Clearinghouse at Syracuse University.

There are a number of reasons why an individual may be allowed to remain in the country. For example, the judge can find that the government did not meet its burden to show the individual was deportable. Or, the judge may have found that the individual was entitled to asylum in this country, or may grant relief from removal under other provisions of the law. A person also may be allowed to remain because the government requests that the case be administratively closed through the exercise of ICE’s prosecutorial discretion, or for some other reason.

Outcomes, for example, vary markedly by Immigration Court. The Phoenix Immigration Court had the highest proportion of individuals who were allowed to stay. In more than four out of every five (82.2%) of its 3,554 cases closed so far in FY 2016 the individuals were successful in their quest to remain in the U.S.

The New York Immigration Court was in second place with 81.5 percent of the individuals in its 16,152 cases closed so far this year allowed to remain in the U.S. The Denver Immigration Court came in third with 78.0 percent of the 831 individuals in its cases successful in their quest to stay in this country.

At the other extreme were the Oakdale, Louisiana, Lumpkin (Stewart), Georgia, and Napanoch (Ulster), New York Immigration Courts where only between 11.3 percent and 17.5 percent of the individuals were allowed to remain in the U.S. Each of these courts handle cases for individuals who are held in detention.


Table 1. Outcome in Immigration Court Cases, FY 2016 (October 2015 – July 2016)
Immigration Court Closed Cases Percent Allowed Stay Rank
All Courts 169,258 56.8
Phoenix 3,554 82.2 1
New York 16,152 81.5 2
Denver 831 78.0 3
San Antonio 3,704 76.8 4
Miami 7,513 75.8 5
Newark 3,358 75.1 6
Philadelphia 2,325 74.1 7
Boston 4,142 73.9 8
Guaynabo 186 71.5 9
Los Angeles 17,981 70.4 10
San Francisco 9,447 70.3 11
Honolulu 353 68.8 12
Cleveland 2,202 64.9 13
Detroit 1,915 64.8 14
Portland 1,037 64.0 15
New Orleans 3,067 63.1 16
Baltimore 4,247 61.8 17
Seattle 2,440 61.7 18
Arlington 7,082 61.0 19
Las Vegas 2,738 60.4 20
Bloomington 1,563 59.3 21
San Diego 2,415 58.1 22
Memphis 5,189 57.5 23
Orlando 3,204 56.3 24
Hartford 1,166 55.3 25
Omaha 1,403 54.5 26
Saipan 13 53.8 27
Pearsall 1,594 53.5 28
Kansas City 1,760 52.8 29
Hagatna 21 52.4 30
Buffalo 1,299 52.0 31
Los Fresnos 1,505 46.1 32
Chicago 3,456 45.4 33
El Paso 3,183 45.3 34
Imperial 393 43.3 35
Atlanta 7,278 41.0 36
Tucson 734 41.0 36
Aurora 786 40.2 38
Harlingen 1,929 38.5 39
Elizabeth 1,156 38.0 40
West Valley 821 37.3 41
Houston – Detained 3,657 36.3 42
Tacoma 1,572 34.9 43
York 1,336 31.8 44
Miami – Krome 2,177 31.8 44
New York – Detain 632 29.4 46
Florence 1,004 28.9 47
Adelanto 1,789 26.2 48
Charlotte 4,153 25.9 49
Dallas 6,826 23.8 50
Houston 4,807 21.0 51
Eloy 1,466 19.4 52
Oakdale 2,240 17.5 53
Lumpkin 2,191 13.1 54
Napanoch 266 11.3 55
Report date: August 17, 2016
ByPhillip Kim

California Theft Conviction is Not an Aggravated Felony

The Ninth Circuit granted the petition for review and remanded, finding that a conviction under California’s theft statute is categorically not a theft offense, and thus not an aggravated felony, because the statute is both overbroad and indivisible, and such a conviction is not susceptible to the modified categorical approach pursuant to Descamps v. United States and Rendon v. Holder.

The court of appeals granted a petition for review of a decision of the Board of Immigration Appeals. The court held that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.

Lawful permanent resident Roberto Lopez-Valencia pleaded guilty to petty theft as defined in California Penal Code §§484 and 488 and was sentenced to probation. He later admitted violating his probation terms and was sentenced to state prison. After a subsequent conviction for being under the influence of a controlled substance, Lopez-Valencia was placed in removal proceedings.

The immigration judge (IJ) concluded that both of Lopez-Valencia’s convictions rendered him removable. The Board of Immigration Appeals (BIA) affirmed, concluding that Valencia’s theft conviction was an aggravated felony because it was a “theft offense” under 8 U.S.C. §1101(a)(43)(G). Lopez-Valencia petitioned for review.

The court of appeals granted the petition, holding that the BIA erred in affirming on the basis that Lopez-Valencia’s conviction was an aggravated felony because it was a “theft offense.”

The key issue was whether a conviction under California’s theft statute may qualify as an “aggravated felony” because it is a “theft offense” as defined by 8 U.S.C. §1101(a)(43)(G). Following the rule of (I)Descamps v. United States(I), 133 S. Ct. 2276 (2013), and its circuit progeny, the court held that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.

California’s theft statute is indivisible because the jury is not required to agree unanimously on how a defendant committed theft. The California Supreme Court and the state legislature have each, in their respective realms, made it clear that while all jurors must agree that the defendant engaged in some type of unlawful taking, they need not unanimously agree as to the way in which the unlawful taking was committed.

The court declared California’s theft statute overbroad and indivisible, with the result that the modified categorical approach did not apply.

The court rejected the government’s attempt to point to the charging documents in Lopez-Valencia’s case in support of a single theory of theft that the jury must have found. That factual approach had been abrogated in light of (I)Descamps(I). In addition, in a California theft prosecution there is no requirement that the charging documents spell out the defendant’s offense with any particularity.

Instead, the court declared that California’s overbroad and indivisible theft statute is not amenable to the modified categorical approach, and a conviction under it can never be a “theft offense” under §1101(a)(43)(G).
from Recorder.