Oral argument — David Annor v. Merrick Garland

1281 Annor v. Garland and Mr. I'm gonna ask you I'm gonna let you pronounce your own name so I don't Winograd your honor Mr. Winograd I will hear from you thank you your honors and may it please the court the parties agreed that this court is the proper venue for this petition for review and even if the court disagrees it would be counterproductive at this point to transfer the case to a different circuit so unless the court prefers otherwise my hope is to start by addressing the merits and to then turn to any questions the court has on venue this gets one really sort of procedural question about venue we agree that venue is not a jurisdictional rule right yes so if neither party wants us to decide it we can just like the question is whether if to even get to the ends of ends of justice if we just say both parties are apparently content to say we have venue so we're done right is there anything reason we can't just say that not at all your honor that's correct okay in our briefs we set forth three independent legal errors the agency made in finding that my client was convicted of a particularly serious crime today I would like to focus on the first and third of those errors the former being that the board misidentified the elements needed to obtain a conviction under 1950 stage and the latter being that the agency failed to explain why my client's crime rendered him a danger to the community but at the outset I just want to remind the court but the text of the statute actually says because the phrase particularly serious crime when used in isolation can be somewhat misleading when used in isolation the phrase particularly serious crime suggests a particularly odious or consequential or wide-ranging crime but if you look at the text of the statute you see that Congress meant something different the statute refers to a non-citizen who having been convicted of a particularly serious crime is a danger to the community of the United States this language makes clear Congress used particularly serious crime not as a test unto itself but as a proxy for determining whether a non-citizen poses a danger to others so while we may use particularly serious crime as shorthand a more accurate way of thinking about the question is whether a non-citizen has been convicted of a crime which itself demonstrates that he is a danger to the community now with that being said the first error that we have alleged is that the board failed to correctly identify the elements of 1956 H to obtain a conviction under 1956 H prosecutors must establish three elements one there was an agreement to commit money laundering two that the defendant knew that the knowingly and voluntarily became a part of the conspiracy there is no overt act requirement and there is no minimum monetary threshold so to violate 1956 8 the only thing a person must do is agree to launder any amount of money that he knew was derived from an illegal activity and that is simply different from what the board said was required to obtain a conviction under 1956 H the engaged or attempted to engage in a transaction with at least $10,000 of laundered money but those are the elements of transactional money laundering under section 1957 not conspiring to launder money under section 1956 and his court made clear in Ravenel the elements of 1957 are not assumed within the elements of section 1956 H and the government does not really argue otherwise the government effectively argues that the error was because the board was required to identify the elements in the first place but that's simply not true in matter of NAM the board held that adjudicators must first identify the elements of the offense standing alone to determine whether the crime is even potentially particularly serious and in that very case the board said that the crime at issue was particularly serious based solely on its elements now both the second and third circuits have agreed with our reading of matter of NAM and the government does not dispute that rejecting our argument would create a split with the second and third circuits the government instead relies on the dissenting opinion in Joe for the proposition that the board is not required to consider the elements and can skip straight to the facts but as we note in our reply brief the board has issued two decisions since Oh Joe came down that confirmed that adjudicators do in fact have to make a preliminary determination based solely on the elements before considering the facts so for this reason alone we would ask the court to remand the case to the board to identify the correct elements of 1956 H and to then consider whether conspiracy to launder money can even potentially qualify as a particularly serious crime based on those elements now the second reason why remand is required which is the third argument that we raised in our brief is that the agency never addressed what the board itself is called the most important factor which is whether these circumstances of a crime indicate that the non-citizen poses a danger to the community again the government does not dispute that the board never addressed this factor the government claims that the agency was not required to address it but the government's argument conflates two distinct lines of precedent the line of Karbali and it holds that once a crime has been found to be particularly serious the agency does not then need to make a separate determination that a non-citizen independently poses a danger to the community we take no issue with that line of precedent the line of precedent on which we rely began with matter of Francesco and it holds that a crime cannot be deemed particularly serious in the first place unless the underlying facts suggest that a non-citizen poses a danger to the community so to see how this distinction works in practice imagine a non-citizen who was convicted of driving under the influence after getting into an accident that rendered him quadriplegic now we readily concede that if the crime the underlying DUI was found to be particularly serious the non-citizen could not say well now that I'm quadriplegic I do not independently pose a danger to society that argument would be unavailable but the non-citizen would remain free to argue that the crime itself was not particularly serious if the facts were not indicative of a person who posed a larger danger to society or the community so for example the non-citizen could argue that he was not even intending to drink and that he was only over the limit because someone unwittingly spiked the punch at an office holiday party or he could argue that he was barely driving over the etc now if a non-citizen to raise such an argument the agency could not find that he was convicted of a particularly serious crime without explaining why the facts indicated that he posed a danger to the community and that is what the agency failed to do in this case it recited the facts by clients crime but it never explained why those facts indicate that he poses a danger to the community in fact the words danger and dangerous not appear anywhere in the IJs or the board's decision and your honors that simply is not good enough if the government wants to deport a citizen to a country he fears he will be killed and without even considering his application for asylum or withholding of removal it has to at least explain why the facts of the crime themselves indicate that he poses a larger danger to the community council you're familiar with the amicus brief right yes so what do you make of its argument that dangerousness remains a component of a particular serious crime analysis what we we agree with it and and as the board itself has said dangerousness is the most important factor in determining whether a crime is particularly serious in first place in other words the agency cannot find that a non-citizen was convicted of a particular particularly serious crime without explaining why the facts of the crime indicate that he poses a danger to the community but in other words you agree that you know don't need to conduct a separate assessment of whether non-citizen was a danger to the community yeah under under precedent by which we are bound there does not have to be a separate determine a separate independent determination a non-citizen opposes a danger to the community separate apart from the facts of the crime yes we concede that if there are no further questions on the particularly serious crime question so what is your well I'm assuming your position but the government is basically saying and I there is there is no danger the word danger does not come up on in the in the board's decision but the government says that this consideration by the board or and by the IJ of the vulnerability of the victims the age of the victims the amount of money that that's sufficient I simply don't think it is runner I think all those facts go to why this may have been an odious crime but they don't go to why it was a dangerous crime or what or why the crime demonstrates that my why my client poses a danger to the community well any crime I suppose the Commission of any crime suggests that there's danger to the community from the person who committed the crime right so you require something more than that if you're right is that what your position is well I'm the board has held I mean we submitted an unpublished opinion for it with a reply brief showing that larceny from the person in Virginia or pickpocketing is not even potentially a particularly serious crime so there's certainly some crimes out there that for which there's even no need to get to the fact so we would not agree that every single crime poses at least a potential danger of the community there there are some that we would submit based on the elements don't pose any possible danger that's a four circuit case no that was an unpublished decision that we submitted with our reply brief from the board my apologies an unpublished decision of the board this court has very little case law on what constitutes a particularly serious crime the lead case that which one we on which we rely is Yousefi we think our cases on all forwards with Yousefi to the extent that in this case as in that case the agency simply did not address the most important factor which is why the facts of the crime demonstrate that the non-citizen poses a danger to the community okay if I may turn to them as I said at the outset the parties agree albeit for different reasons that venue is proper in the circuit and as your honor noted because that provision is non-jurisdictional the court have to reach it however if the court does elect to reach it we should hold that venue is proper in the circuit for the reasons that we put forth rather than the reasons put by the government now the government argues that venue is proper in the circuit because of the board's decision in matter of Garcia which held that IJ's must apply the law of the circuit that corresponds to the location of the immigration court where venue lay under the regulations now we would agree with the government if this court was writing a clean slate but this court is not it rejected that very argument in Herrera Alcala which held that will tell that venue for petition for review depends on the location of the immigration judge not the location of the immigration court yes is there any daylight between the rule you urge and the one the Seventh Circuit adopted in the Ramos at the same is that the same role well there may be did I I've not thought about that question I the rule in Ramos did not specifically articulate the basis for before its rule it seemed to just say it's tied to the location of the immigration court and and I believe Herrera Alcala rejected that line Ramos says it's the immigration judge is assigned so Ramos specifically even says like just because someone did something from their vacation house in the Maldives doesn't change the fact that I'm a Baltimore based immigration judge sure yeah we think at the end of the day you should look to the the the immigration judges assign work location or I'll put it this way when an immigration judge is assigned to an immigration court within the Fourth Circuit well let me just give you a very concrete example so if one were to look me up on sort of the Fourth Circuit's whatever it would say that my duty station is in Arlington Virginia as a descriptive matter I sometimes do work in places other than Arlington Virginia but I would still say my duty station is Arlington which is basically what I understand the Seventh Circuit to have said in Ramos is that would that be consistent with the view yes your honor well our argument yes our argument focus on an issue on the issue that that the court left open in Herrera Alcala in footnote 4 which is where venue lies when an IJ conducts a hearing from somewhere other than his quote assigned work location that's what we have in this case as I said the ideas assigned work location was in Baltimore but he conducted the hearing from his personal residence in Pennsylvania and so our view is that when an IJ is the Fourth Circuit but conducts the hearing from a non-assigned work location outside the Fourth Circuit he should be deemed to have completed the proceedings from his assigned work location within the third Fourth Circuit pardon me and there are three reasons why that is so first as a matter of congressional intent it is difficult to imagine any member of Congress believing that the proper venue for a petition for review should depend on where an IJ happened to live second time venue to where an IJs home is located would raise all sorts of practical products such as requiring them to state on the record when they were working from home and where their homes are located and third we believe the court should not extend Herrera Alcala any further because we believe it was wrongly decided in the first place no other circuit ties venue to the physical location of the immigration judge the first and second circuits have explicitly considered and rejected the approach taken in Herrera Alcala and the board itself has rejected Herrera Alcala for purposes of choice of law so this panel of course cannot overrule Herrera Alcala but we believe it should limit the decision to its facts as much as possible and if the court does reach the issue and so inclined to state that it believes that Herrera Alcala was wrongly decided and that the full court should reconsider that issue on bond in an appropriate case just before you sit down this all goes to the issue that I thought the parties agreed we need to need to reach I thought we established that at the beginning of this argument that is correct your honor the court does not need to reach that or this venue if it does not want to we raise this issue we thought the court the court may want to reach it because this this may be the first but it certainly will not be the last case where this venue issue arises because the immigration judge in this case although assigned to Baltimore works from a home in Pennsylvania and presumably there are some immigration judges who were assigned to one of the immigration courts around around DC who live in and presumably work at least part of the time from their homes inside the District of Columbia thank you thank you your honors may it please the court Rob stalls are on behalf of the AG your honors I'd like to start where my brother counsel started just say we agree that the venues proper here and because venues not jurisdictional the court doesn't need to reach that decision if you don't want to I'll come back to venue if there's later but we can start on the merits which is the particularly serious crime determination your honors there was no abuse of discretion here I am where I'm anticipated my first question which I'm trying to think of what if anything in this case you think is reviewed for abuse of discretion so do you agree that each of the claims he's actually making is a question of law that we reviewed de novo I don't believe so your honor I believe the the entirety of the particularly serious crime determination is a discretionary one including both the NAM step one which is the determining whether the statutory conviction falls within the crimes that could potentially be particularly serious crimes an abusive discretion we defer to the BIA about the elements of a crime not not the elements but whether the elements of the crime the statutory the crime of conviction potentially fall with ambit of a particular how do we determine that other than looking to the elements of a crime which is a legal question we don't defer to the BIA about well the reason I said the reason I say that your honor is because of the language of matter of NAM and because the determination is like so it's it uses this this kind of loosey-goosey term potential potentially falls within the ambit and I think some of the the the case law uses the word suggests whether the elements of the crime suggests that it falls in other words this is a very loose standard which suggests to me just rather now we're just getting would just be about what NAM actually holds and that is again something we don't defer to the BIA about right right okay so let me ask you is there a way to write an opinion that rules for you on what I'm gonna call their ground one that doesn't create a circuit split with the second and third circuits I haven't thought about that your honor it seems like an obvious question his argument is to do what you would do would create a split with the second and third circuits so is there a way to rule for you that doesn't get a split with the second third circuits yes I would say rule consistently with the ninth circuit in the case that we cited in our brief bar against bar which says on that first step you shouldn't elevate form over substance and that where the correctly identifies the statute and correctly identifies the facts that correspond to the statute or that's sufficient to demonstrate that the board has applied NAM the first step and then see if they've moved on to the second step and that would be like I said it's well that's just an argument that well that's an argument that there's a split no matter what we do but that's not really an argument that we wouldn't be creating a split with the second the third right yes your honor okay got so um can I just another so why in the world is the board citing 1957 which is just the wrong statute I think because 1956 H also refers to 1957 sure but you agree that's not the up crime he was actually convicted of here right no he was convicted under 1956 H for the conspiracy so where do I look to the board's opinion where they cite the correct elements of 1956 H they don't in the decision they instead they said the underlying elements of the money laundering and I think the idea there the board was saying look can money laundering crimes be a particular serious crime that was the matter of NAM step one does this fall within the sort of cases or the sort of crimes that could be potentially particularly serious and then said yes and then moved on to say okay and here we have the facts we have to look to the circumstances of this case to determine that it was particularly serious and that's what the board and that second determination to okay now now that we've determined that money laundering conspiracies like this one can be particularly serious do the individual facts of this case make it particularly serious that's an also a discretionary determination that the board rendered in the affirmative pointing to the age of the victims the length of time of the conspiracy and the think that the board in looking at the actual money laundering elements it could be argued that the board considered elements that were more serious than the actual offense but he was convicted of I don't think so and the elements there I mean he knowingly participated in the conspiracy he did know that this these are stolen funds stolen from the elderly it was a those were I mean that is the money laundering conspiracy crime that he did agree to join this that particular crime so can we back up a second you say that the government argues that the BIA committed no error because if we stated that the elements of 1956 conspiracy include the elements of the substantive offense of money laundering right yes your honor that's a quote from three but that's not true I think it is because money laundering conspiracy requires an agreement to commit under more substantive money laundering offenses it does not require proof that the defendant committed any overt act so it doesn't include just the agreement your honor yeah well but that's not what you say in your brief you say the BIA committed no error because it probably stated that the elements of 1956 age conspiracy include the elements of the substantive offense of money laundering or two different things right the reference to 1950s 1957 I think that's what we've been saying in our brief your honor well I just quoted your brief to you and said 1956 age conspiracy includes the elements of substantive offense of money laundering but conspiracy doesn't include the elements of the substantive offense of money laundering I see your honor I think what the board was focusing on there and what we were focusing on there was on the step one can a money laundering crime like this potentially come within the ambit of a particularly serious crime and that was that was the focus was in this broadly can it potentially end up being a particular serious crime which doesn't require proof that can committed any overacts correct and I don't know what he was convicted of and what the board said can I just make sure I've got this correct so his charge was a conspiring to violate a substantive offense in 1956 right that's the conspiracy to do something that violates 1956 that's correct yes your honor not conspiring to was there no that was sorry that okay so I just want to know I just appreciate I just wanted to nail that down exactly what he was convicted of doing yes yes your honor okay so I'm having determined that it this sort of crime does fall within the ambit of a particular crime then the board appropriately looked to the specific circumstances of petitioners case contrary to my brother counsel's arguments in his the board did not look outside of the record of conviction it looked to the reliable evidence of who the victims were how much money was involved and according to the indictment how long the crime occurred and that was enough for the board to determine in its discretion that this crime his crime in particular was serious if there are no more questions on the but just explain to me why this isn't a basis for reversal if the BIA erred in saying that the 1956 conspiracy includes the elements of the substantive offense and money on it isn't that a problem with what did because I think we agree it doesn't 1956 the conspiracy doesn't include the elements of the substantive offense right your honor and if the court were to find that that the board has misquoted or has a misstated the conviction then that would basis for remand well but haven't you just agreed with me that they did misstated again because I think the board was focused simply on the broad idea can such a money-laundering conspiracy this conspiracy be a particular serious crime not necessarily whether the elements here because as judges established the underlying conviction here was that 56 a crime not the not 12 the 1956 crime not the 1957 crime your honor yeah okay just to return to venue briefly your honors because that we agree that it's not jurisdictional and certainly at this late stage it wouldn't be in the interest of justice to transfer but just you know on its merits we do believe that this is the correct venue for this case because the proceedings were conducted and completed in the Baltimore immigration court which is geographically this courts and I have a different question on that but is it as a descriptive matter true that every immigration judge is just assigned to a geographically determined immigration court is that is that true or not true I don't know that that's true your honor because I just I do know that they've been moved around some but I don't know whether that takes if it's an ad hoc basement case basis or if it's a sort of thing you know like an order comes down that says oh the associate chief immigration judge has now assigned you or reassigned you to a different court I don't know how that works your honor in this case we do know that I J Gulf of art is assigned to the Baltimore immigration court that's where he conducts his proceedings he just asked them remotely and am I correct that since judge Easterbrook I thought sagely pointed out it would be a really great idea to have some regulations dealing with this am I guessing there are still no regulations dealing with this there are still no regulations dealing with this but we do have matter of Garcia which came out which doesn't bind this court of course and not regulations wouldn't bind this court either if we have them I mean matter of Garcia tells the immigration Chevron deference for as long as Chevron is still I think helps us because at least it tells the immigration judges where they're supposed to believe they're located which there was apparently some confusion before that and it was medical see it came out after the decision in this case but now we we know that where the notice of who appear initiates proceedings unless venue has been changed that's where the proceedings are being conducted and I just have to ask how is the government's proposed test in this case not just completely inconsistent with Herrera Alcala like I like I read the government's brief and like maybe that's a sensible rule and then I read Herrera and it's like well that is literally the thing we said you can't do your honor I think because there is enough wiggle room left in our in Herrera Alcala in footnote for let me put it this way in its text Herrera Alcala seems very look where it's where the judge is physically which isn't what the statute says the statute says where the idea is located which we've got argues where the court is located but the but Herrera Alcala this court says look it's where the judge is physically located but then there's a footnote that says well except for this other circumstance that we're not considering today so it seems to me there is some wiggle room to say you know maybe it's not just for the edges physically located because of that footnote it seemed to reserve something it certainly didn't say that was the only thing it was reserving was the alternate work site I think is the language they used in any case unless you want to you don't need to reach the venue if there are no further questions I think not thank you very much thank you for time undergrad you have some time thank you your honor with respect to the standard of review the government states on page 24 of its brief that we argued that the agency failed to apply the correct standard in its analysis misapplied agency precedent and violated the relevant statute while these contentions present questions of law they're ultimately unpersuasive questions of law are of course subject to de novo review with respect to the the first step elements a question not only was my client convicted of conspiracy under 1956 age rather than a substantive money-laundering offense the object of the conspiracy was promotional money laundering under 1956 a1a and concealment money laundering under 1956 a1b that's on pages 379 and 80 of the joint appendix though transactional money laundering under section 1957 a wasn't even alleged as an object of the conspiracy so what so the board indisputably aired in in citing the elements of 1957 the night search decision in bar a we just read that as a classic example of hard facts and making bad law both on the first step ambit question but also on the type of evidence that can be considered in determining whether a crime was particularly serious now with respect to venue yes you couldn't say that far I just like yes they didn't actually recite the elements but like we're a court we could look at the elements and it is so obvious the answer is yes I think that's what the court was doing quite frankly and and and the elements of felon in possession are much more straightforward than the elements of a you don't think that would be insistent with sort of your client prevailing in this situation of correct bar okay yes correct your honor now with respect to venue I know as we've discussed the court does not need to reach it I just would like to make the court aware of some statistics that may affect its decision on whether to reach it at the time Herrera-Alcala was decided there were approximately 30 immigrant judges who were assigned to locations within the boundaries of the Fourth Circuit today there are approximately 100 many of those are assigned to the so-called immigration adjudication centers one of which is here in Richmond the other of which is located in Falls Church so the size of this court's immigration docket under Herrera-Alcala is directly related to the number of immigration judges within the Fourth Circuit and now because of Herrera-Alcala the judges at the immigration adjudication centers who are now exclusively hearing cases from within the Fourth Circuit so this court's immigration docket in the next few years could potentially triple or quadruple and now while that would be great for me as an appellate immigration lawyer it may not be great for the members of this court to answer your specific question Judge Heitens all judges are assigned to a particular location most of them are assigned to an immigration court but some of them are assigned to these there are actually pending regulations on the venue issue but they were promulgated or the notice of proposed rulemaking came out in 2007 and there's been no action on them anyway so I don't think they're coming out and those regulations actually took the position that the government made in Herrera-Alcala which this court rejected and even if those regulations do come out they wouldn't be subject to any deference under the Supreme Court's decision in because they relate to a judicial review provision so at the end of the day I don't know that regulations could solve this problem