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Court Denies Immigrant’s Request for Review of Questionable Removal

sealThe Court of Appeals for the Eighth Circuit recently denied the petitions of Jose Refugio Gomez-Gutierrez to review two earlier decisions of the Board of Immigration Appeals, which had ordered his removal for separate criminal offenses involving moral turpitude.

Gomez-Gutierrez arrived as a Mexican immigrant to the United States in 1968, at the tender age of 5. He was brought over as the son of permanent resident, and was able to obtain permanent resident status. In 2006, he was convicted for the crime of soliciting prostitution, violating Minnesota state law.

Removal Proceedings Initiated

Consequently, the United States Department of Homeland Security (DHS) launched removal proceedings against Gomez-Gutierrez, finding grounds to label him as a deportable alien for past offenses involving moral turpitude. An immigration judge (IJ) ultimately ruled that a 1983 marijuana conviction in California, as well as the more recent 2006 Minnesota solicitation of prostitution conviction made Gomez-Gutierrez eligible for removability, a decision the Board of Immigration Appeals (BIA) would affirm later on.

Gomez-Gutierrez, however, is only challenging the involvement of the solicitation conviction. He was convicted in September 27, 2006 for soliciting prostitution and violating Minn. Stat. 609.324, subd. 2, which, at the time, considered soliciting or accepting an invitation to engage in for hire sexual intercourse or contact in public as a criminal offense.

Gomez-Gutierrez pled guilty to solicitation charges related to his agreement to pay for oral sex from an undercover cop posing as a prostitute. In exchange for pleading guilty, a Minnesota court delayed adjudicating his case long enough to enter and complete a division program. The court eventually dismissed the solicitation charge in October 2008.

Dismissal of Solicitation Conviction Ignored

Yet despite the fact that Gomez-Gutierrez’s solicitation conviction was technically dismissed, the IJ still included the charge in the ruling for the petitioner’s removal. In May 2014, Gomez-Gutierrez tried to stop the removal proceedings, pointing out that:

  1. He no longer had a solicitation conviction under U.S.C. § 1101(a)(48)(A)
  2. Solicitation under Minn. Stat. 609.324, subd. 2 was technically not a criminal offense connected to moral turpitude

The IJ ruled Gomez-Gutierrez was still removable as charged. In response to the petition to terminate the inclusion of the solicitation charge, the IJ found that the plea transcript still established Gomez-Gutierrez’s conviction despite the court stay and dismissal. The IJ also concluded that Minnesota’s solicitation laws were enough to satisfy the mens rea requirement for crimes involving moral turpitude.

The court also categorized solicitation as a moral turpitude offense because of the lack of “realistic probability that the offense would be used to reach non-turpiduous [sic] conduct.”

Court of Appeals Ruling

The Court of Appeals ruled that because the petitioner failed to show enough proof that Minnesota courts applying section 609.324, subd. 2, to crimes with no connection to moral turpitude, the Board of Immigration was correct in considering Gomez-Gutierrez’s solicitation conviction moral turpitude crime.

The court also concluded that the Board did not abdicate its duty of considering the petitioner’s argument to obtain a fuller explanation.

If this grossly unfair situation sounds like something you or anyone you know is facing and are fearing deportation, please contact Lyttle Law Firm today. Learn about your rights by calling our offices at 512-215-5225 or by visiting our website.