About The NCAP
The BC Ninth Circuit Appellate Program provides pro bono representation to non-citizens with criminal convictions. A central criticism of immigration law is that it treats hundreds of crimes the same, failing to take into account that state and federal judges consider specific offenses not serious or deserving of probation instead of incarceration. The clinic’s mission is to use federal court advocacy to restore proportionality and common sense into the immigration consequences of criminal convictions.
This clinic takes advantage of a highly unique opportunity provided by the United States Ninth Circuit Court of Appeals that screens pro se petitions filed by non-citizens to identify meritorious (and often novel) issues, accelerates the briefing schedule to coordinate with the academic school year, and permits law students to present oral argument to a sitting panel of judges in the spring of each year. Success is not measured on any resulting wins in the Court. Rather, success will be measured based on the amount of material learned, the types of appellate skills mastered, and the contact with the client to help them navigate a case for which their ability to remain in the United States is at stake.
The students who have participated in this clinic have gone on to pursue careers as immigration lawyers, public interest lawyers, law firm associates, public defenders, and prosecutors. NCAP alumni have clerked for judges in federal district courts and in the Third, Ninth, and Tenth Circuit Court of Appeals.
Prado v. Barr, 17-72914
Ms. Prado is a lawful permanent resident who came to the United States before age one. She is now a grandmother and her children and grandchildren are all U.S. citizens. She was convicted of possessing marijuana with intent to sell. For that, she has been ordered removed. The students argued that California’s Proposition 64, which reduced her conviction to a misdemeanor, also eliminated immigration consequences because Prop. 64 reclassifies state marijuana offenses as crimes involving a different definition of the drug that is overbroad to the federal government's definition of marijuana. Ms. Prado argued that this new crime must be given full faith and credit, because California's policy decision to reduce the sentences for marijuana crimes and regulate the sale of marijuana reflected a substantive defect in, and repudiation of, the way by which California had previously prosecuted marijuana crimes for a generation. In a published decision, the Court disagreed with the argument that the resulting racial disparities and over-criminalization of marijuana crimes was a substantive defect of those offenses.
Yepis-Vargas v. Barr, 17-72070
Mr. Yepez-Vargas, is a lawful permanent resident who got his green card at age seven and lived in the US for thirty-five years before his deportation. His brothers and sisters all live here. His conviction under Arizona Rev. Stat. 13-3408(A)(7) for possession with the intent to sell, distribute, or import a narcotic drug was his only arrest and conviction. When the client traveled to Mexico for a family emergency, upon his return, Customs and Border Patrol discovered this offense and started immigration proceedings. He was in immigration detention for a couple years before he gave up and left the country last year. The Court held that Arizona Rev. Stat. 13-3408(A)(7) is overbroad and indivisible as an aggravated felony and controlled substance offense. The Court remanded the case for cancellation of removal and upheld that the conviction was a CIMT and supported a reason to believe finding.
Pena-Rojas v. Sessions, 17-70274
In this case, a lawful permanent resident who had been in the country since he was 5 years old. In his twenties, he was convicted of a robbery offense and ordered deported. The Board of Immigration Appeals ("BIA") initially vacated the deportation order on the basis that the California robbery statute was overbroad to the deportability ground. Within a year, the BIA reversed itself, disagreeing with its prior analysis. The students presented a highly technical legal argument, requiring a deep understanding of state criminal law and Supreme Court precedent. The students argued that the state crime was not a match to the deportability ground because a person could be convicted of the crime without committing larceny or without having an prior or contemporaneous knowledge of the taking.
The Court decided that the prior offense was a theft offense.
Myers v. Sessions, No. 17-71416
In this case, a lawful permanent resident who had been ordered deported after being convicted of violating the Travel Act, a federal racketeering statute. The issue before the Court was whether the offense was a drug crime, which would be a proper basis for deportation or a racketeering crime, which is not. The students had mastered Supreme Court precedent and complex jury instructions to advance arguments to contend that the conviction is not a proper basis for deportation.
In a published decision, the Court upheld the conviction as being a conviction relating to a controlled substance and remanded the case for a ruling on the stop-time rule
Ventura Heredia v. Sessions, No. 15-72580
In this case, the non-citizen was a lawful permanent resident for over 30 years. He committed four minor offenses in 1995, 2000, and 2001---two were misdemeanors and two were infractions. The Board of Immigration Appeals ordered him removed him for those four prior matters. The legal challenges include that the two infractions are not convictions under immigration law, that the California theft statute is not a crime involving moral turpitude because it is overbroad and indivisible, and the term crime involving moral turpitude is impermissibly vague.
Brian Shaud '17 and Christopher Modlish '17 argued the case.
The Court decided that the prior offense was a conviction and a CIMT.
Villavicencio v. Sessions, 879 F.3d 941 (9th Cir. 2018) (holding NRS 199.480 is overbroad and indivisible to the generic definition of conspiracy and NRS 454.351 is overbroad and indivisible as a controlled substance offense)
The non-citizen is a lawful permanent resident who is 40 years old, has been in the country since he was 2 years old, and has had his green card since he was 12. The Board of Immigration Appeals ordered him removed because he had committed one misdemeanor drug offense, a conspiracy to possess a drug under Nevada law. The Court held that the misdemeanor conspiracy offense is not a deportability ground because it is overbroad and indivisible as a conspiracy offense and as a controlled substance offense.
Vera-Valdevinos v. Lynch, 649 Fed. App'x 597 (9th Cir. 2016) (holding that Ariz. Rev. Stat. 13-3408 is overbroad and indivisible as an aggravated felony and deportability ground)
Mr. Vera-Valdevinos, a native of Mexico, came to the United States when he was 16 years old. Over the next 25 years, he became a lawful permanent resident, married a U.S. citizen, and had two citizen sons who are currently attending college. Mr. Vera had steady employment since he was 16 years old and was well-respected and liked by colleagues, employers, and neighbors. When he was 45 years old, he pled guilty to a drug-related offense, for which he was granted probation. The immigration law considered the offense to be an aggravated felony, which is a technical term for the worst of the worst crimes. The Immigration Judge ordered him removed. The Jovalin Dedaj and Cristina Manzano developed a novel argument based on new Supreme Court precedent to challenge that action. The Ninth Circuit agreed, which has the effect of vacating the removal order and restoring his lawful permanent resident status. By November 2016, ICE arranged for Mr. Vera-Valdevinos to lawfully return to the country. By November 2017, Mr. Vera-Valdevino had his new green card returned to him.
Sandoval v. Lynch, 657 Fed. App'x 700 (9th Cir. 2016) (remanding case to the BIA to permit it to determine if California Penal Code § 273.5 is overbroad and indivisible as a crime involving moral turpitude)
Mr. Sandoval is a Salvadoran national who had been seeking asylum, withholding, and CAT based on extortion, theft, and death threats by the MS-13 gang members. The Immigration Judge had found him not credible based on testimonial inconsistencies. Mary Pat Brogan and Shayna Sehayik challenged that finding by advancing technical fact-specific arguments and a due process claim arising from the client’s inability to gather witnesses and evidence while detained. The Court ultimately rejected these arguments, but it did accept Brogan and Sehayik’s arguments that Mr. Sandoval’s prior criminal conviction for domestic violence was not necessarily a crime involving moral turpitude. When he was convicted, the California court imposed probation and ultimately expunged the crime. Brogan and Sehayik presented novel arguments based on Supreme Court precedent. The Court agreed with the arguments that the BIA had improperly found that Mr. Sandoval’s criminal conviction barred him from receiving voluntary departure and remanded the case for further briefing on the matter.On remand, the Board returned the case to the immigration court for consideration of remedies and for application of case law to the conviction.
Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) (holding that California Penal Code § 484(a) is overbroad and indivisible as an aggravated felony)
Mr. Lopez-Valencia was a 42-year-old lawful permanent resident who had been in the country since he was 4 years old. He had family ties, including citizen children in the country. He worked until the day he was detained by ICE. Mr. Lopez-Valencia was convicted after stealing a $2 can of beer. Under California law, because he had a prior theft offense, it was prosecuted as a felony. The BIA originally ordered him removed, alleging that this offense is an aggravated felony---the worst of the worst offenses under immigration law. Kelly Schwartz and Jeremy Sanders developed a novel and technical theory that California’s theft statute was indivisible because the jurors were directed that they did not need to agree on the precise form of theft as long as they agreed one of the enumerated forms was committed during the crime. In a published decision, the Court agreed, holding that California’s theft statute was indivisible. This decision meant that that the statute was not an aggravated felony, a decision that benefited Mr. Lopez-Valencia and many others convicted under that statute. On remand, the Board of Immigration Appeals terminated the proceedings, which returned Mr. Lopez-Valencia's green card to him.
Blackwell-Hill v. Lynch, 614 Fed. App'x 348 (9th Cir. 2015) (reversing BIA decision finding Nevada's prostitution statute was a CIMT. Remanding for a decision taking into account the statute's regulatory prohibition and general intent)
Ms. Blackwell-Hill, a native of Bulgaria, suffered years of extreme mental and physical cruelty at the hands of her U.S. citizen spouse. He beat her, destroyed her clothes, harmed her pets, and threatened to kill her. Ms. Blackwell-Hill had two misdemeanor offenses---from 1999 and 2004---for solicitation of prostitution in Nevada. When she was first placed in immigration proceedings, an IJ was inclined to grant her protection because she was a domestic violence victim who had been abused by a U.S. citizen. The IJ ordered her removed instead, claiming that her convictions were crimes involving moral turpitude, which barred her from relief. Shannon Johnson and Alejandra Salinas developed a novel theory highlighting that the Nevada prostitution statute is highly unique in that it is a general intent offense and bans prostitution outside of licensed brothels, rendering the statute malum prohibitum. Unlike all other prostitution offenses decided by the BIA and the Courts, those two characteristics are different and legally significant. The Court remanded the case to the BIA to decide in the first instance whether this statute is not a crime of moral turpitude. On remand, the Board of Immigration Appeals elected not to reach the legal issues, returning the case to the immigration court to grant relief. This case is pending.
Garcia v. Holder, 749 F.3d 785 (9th Cir. 2014) (upholding adverse credibility finding under REAL ID Act that woman who was fleeing domestic violence could be found not credible based on representations about her name, age, and country of origin that were made at her entry)
Ms. Garcia is a native of the Dominican Republic who suffered long-term emotional abuse, brutal rapes, beatings, and repeated death threats by her long-term partner. In the DR, there are no domestic violence shelters and the government has policies and practices that neither punish perpetrators of domestic violence nor protect their victims. Ms. Garcia fled to the United States to seek safety. When she attempted to cross into the United States, she was stopped by the border patrol and on four occasions, gave false information about her name, birthdate, and country of origin.
When she was before the IJ, she testified about her past harm. The IJ did not find any of that testimony inconsistent, but under the REAL ID Act, was permitted to find her not credible---and not eligible for protection---based on the misrepresentations about her own identity that she gave when apprehended at the border.
Before the Ninth Circuit, Marija Ozolins and Mackenzie Houck advanced arguments to counter the judge’s findings and scope of the REAL ID Act.. In a published decision, the Ninth Circuit upheld the law’s application to the denial of this case.
No videotape of the argument is available because the Court had not yet developed the technology at the time of oral argument.
Jara-Arellano v. Holder, 567 Fed. App'x 544 (9th Cir. 2014) (reversing BIA decision and holding that Mexican national who been an undercover agent for the federal government and who had been shot in the head by gang members who he helped arrest and deport may proceed with a CAT claim)
Mr. Jara-Arellano was a native of Mexico whose parents brought him to the United States when he was 15 years old. He lived in the United States for 15 years without status. During that time, he was convicted of drug crimes. During a probation search where drugs were found, the California police gave him a choice of serving a previously suspended sentence or working with them as an undercover agent. Mr. Jara-Arellano chose the latter. For the next 18 months, he risked his life as he assisted federal and state authorities to break up drug rings. He was promoted to also assist in breaking up mail fraud rings that targeted the elderly. Mr. Jara-Arellano was a successful undercover agent, helping convict and sentence 20 to 30 drug traffickers, including one of the biggest drug dealer in California.
While undercover, the police executed a routine search and discovered drugs and an antique gun. Mr. Jara-Arellano was under the assumption that he was permitted to engage in low-level criminal conduct to remain believable. The prosecutor, however, elected to prosecute him for possession of drugs and being a felon in possession of a firearm. Those offenses caused him to be removed to Mexico.
In Mexico, members of the Zetas criminal gang whose members he had helped arrest, convict, and deport recognized him as a snitch. The gang members, along with Mexican police officers, retaliated against him by shooting him 9 times and leaving him for dead. He survived, but is permanently paralyzed, in a wheelchair, and forced to wear a plate in his head.
Mr. Jara-Arellano crossed the border and applied for asylum, withholding, and CAT based on the attack and attempted murder. The IJ and BIA originally denied this claim and ordered him removed.
Before the Ninth Circuit, David Kete ‘15 and Andrew “Drew” Trombly ‘15 advanced arguments challenging the removal. In particular, they imported a stipulation doctrine from another context to argue that the former attorney’s failure to contest the nature of the criminal conviction did not bar the Court from reconsidering the issue and reaching the opposite conclusion. The Ninth Circuit accepted this argument, found that the criminal conviction was not a bar to withholding, and remanded the case to let Mr. Jara-Arellano establish that he is eligible for protection.
On remand, the immigration judge again denied the case for similar reasons that were raised to the Ninth Circuit. On appeal, with the pro bono assistance of attorney Esther Hong, the Board of Immigration Appeals found that the conviction is not a bar to relief and found that evidence supported granting Mr. Jara-Arellano CAT and legal status.
No videotape of the argument is available because the Court had not yet developed the technology at the time of oral argument.
14. High Praise for Ninth Circuit Arguments (2018)
13. Another Victory for Ninth Circuit Clinic (2018)
12. Federal Court Gives Students Chance to Parry With Judges (2017)
11. Winning Streak Continues with Another Ninth Circuit Triumph (2016)
10. BC Law Students at the Ninth Circuit Court of Appeals (Jovalin Dedaj) BC Law: Impact (2016)
9. BC Law Students Win Momentous Ninth Circuit Victory BC Law Magazine (2016)
8. Watch BC Law Students Argue at the Ninth Circuit Court of Appeals! (Sajid Shahriar) BC Law: Impact (2016)
7. Third-Year Students Argue Cases Before Ninth Circuit in California Boston College Law School Magazine (2016)
6. Featured in "Innovations in Immigration Law Teaching and Lawyering (Series): Prof. Kari Hong and the Ninth Circuit Appellate Program at Boston College Law School" (Jennifer Lee Koh) ImmigrationProf Blog (2015)
5. Second Ninth Circuit Victory Announced (Kari E Hong) Boston College Law School Magazine (2015)
4. Victory Announced in Ninth Circuit Case (Kari E Hong) Boston College Law School Magazine (2015)
3. Ninth Circuit Appellate Students Make Their Argument in Court (video of arguments made by Shannon Johnson, Alejandra Salinas, Jeremy Sanders, Kelly Schwartz) (Kari E Hong) Boston College Law School Magazine (2015)
2. Ninth Circuit Clinic Wins Recognition for Innovation (Kari E Hong) Boston College Law School Magazine (2014)
1. May It Please the Court (Jeri Zeder) Boston College Law School Magazine (2014)