Monday, November 02, 2015

Mancilla-Delafuente v. Lynch (9th Cir. - Nov. 2, 2015)

After taking a break since last Wednesday, the Ninth Circuit today issues a published opinion.  Only one.  But it's something.

It's a straightforward opinion by Judge Callahan.  She holds that no matter what the equities, you get deported if you've been convicted of possessing someone else's credit card without their consent.  No eligibility for withholding of removal.  Period.

At least if that conviction takes place in Nevada; other states might be different.  At least if that Nevada conviction took place in 2009 (as petitioner's did); as of 2013, even in Nevada, such a conviction wouldn't subject you to removal (since the maximum penalty is now 364 days).

But since it was in Nevada, and since it was 2009, petitioner gets deported even though he's been in the United States for nearly two decades, and even if he can show, e.g., exceptional hardship to U.S. citizens as a result of his removal.  All from a conviction for which he was sentenced to a fine of $775 and two days credit for time served.

On the one hand, we don't need people in the United States who commit fraud.  On the other hand, adding the penalty of permanent deportation to someone who may have a family (and children) who have been in the United States for their entire lives seems a pretty big hammer to add to a crime that ordinarily only gets you two days in prison.

None of which is Judge Callahan's fault.  She's just applying the law.

But it's an exceptionally harsh -- and potentially arbitrary -- mistress.  At least in this field.  In which a guy in Nevada in 2009 gets deported, but a guy in Nevada in 2013 who does the exact same thing does not, and a guy in (say) Kansas in either year stays as well.  Even if the resulting harm to U.S. citizens in the latter scenarios is much less egregious than in the former.