U.S.A v. Belles

In this case from the Ninth Circuit, the appellant, Robert Dale Belles, was convicted of illegally possessing a firearm, in violation of a federal statute that makes possession of a firearm illegal for anyone “who has been convicted in any court of a misdemeanor crime of domestic violence.” Mr. Belles challenged his federal conviction on the grounds that his prior misdemeanor conviction is not within the firearm statute’s definition of a crime of domestic violence, and that the misdemeanor conviction was invalid for the purposes of the federal statute because he pleaded guilty without the benefit of counsel and was not properly advised of his rights before he entered his plea.

Mr. Belles’s prior crime arose from a citation for violation of a Wyoming Statute that stated that he committed “assault and battery by assaulting Kristen Belles – grabbing her chest/neck area and pushing her against her car in an angry manner.” Kristen Belles was married to Mr. Belles when he committed battery against her.

The Ninth Circuit held that simple battery does not qualify as a domestic violence offense unless the record of conviction shows that the battery involved more than mere offensive touching. The government has asked for extra time to file a petition for rehearing and reconsideration.

If this decision stands, it may mean that in the Ninth Circuit simple assault or battery, or even a domestic violence offense involving simple assault or battery, will not be a basis for deportability under the domestic violence ground unless the government establishes that the official record of conviction (charging papers, plea or judgment, and sentence) shows that the conduct went beyond mere offensive touching.

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Zhou v. Ashcroft

In this case from the Ninth Circuit, the court addressed the very important issue of credibility of the applicant for asylum.

Zhe Xiao Zhou, a native and citizen of china, petitioned for review of the decision of the Board of Immigration Appeals affirming the immigration judge’s (“IJ”) order denying the application for asylum and withholding of removal. The Ninth Circuit reviewed the IJ’s adverse credibility finding for substantial evidence.

The Ninth Circuit found that the IJ erroneously concluded that Zhe Xiao Zhou was not credible because he testified to certain details regarding his alleged persecution by local communist officials that were not included in his asylum application. The Court held that “it is well settled that an applicant’s testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylum application.

Moreover, the IJ failed to provide an adequate reason for rejecting Zhe Xiao Zhou’s explanation for the omissions. Under the Garrovillas v. INS (9^th Cir. 1998) “inconsistencies of less than substantial importance for which a plausible explanation is offered” are improper bases for adverse credibility finding. Therefore the decision of the Board of Immigration Appeals was vacated and the case was remanded to the Immigration Court.