Yesterday the Ninth Circuit en banc came down with a very bad decision, which will hurt many noncitizens who have been convicted of criminal offenses. See U.S. v. Aguila-Montes de Oca (“AMDO”), which is attached here or can be found www.ca9.uscourts.gov/opinions/
In this decision Judge Bybee speaking for the majority took direct aim at the “categorical approach,” which is the law governing divisible statutes and the record of conviction. He overturned Navarro-Lopez and the “missing element” rule, and may have done more. The decision requires us to evaluate much of the Ninth Circuit law, and even BIA law, that we have relied upon.
We are working to try to understand this 123-page decision and its implications, and get to some practice tips. Today we just want to alert people that if you are considering submitting an affirmative application for a noncitizen with a criminal record, we strongly suggest that you delay filing if possible until you are able to consider whether this opinion would hurt the applicant.
As Judge Berzon and four other dissenters stated in this 6/5 decision, this decision seems to put the Ninth Circuit in direct conflict with clear Supreme Court authority. At some point there will be a petition for cert to the Supreme Court, or efforts to restrict the decision with other en banc Ninth Circuit rulings. We all know that that is a time-consuming and iffy process, however.
Please pass the word to other providers who might make affirmative applications. Based on this decision, advocates who wish to get time for additional briefing — especially if the government relies on this case — ought to be able to get that, in removal proceedings and on appeal. While the decision looks bad, we have not had time to really digest it, and practitioners should fight attempts by the government to make it have a broader reach than it should.