Hernandez v. Whitaker, No. 17-3977 (6th Cir. 2019)Annotate this Case
Molina, born in El Salvador, grew up in an area where the “18th Street” gang was active. The gang attempted to recruit Molina. Molina claims that his uncle was murdered in 2008 for refusing to join the gang. Molina moved to San Vicente, which was in MS-13 gang territory. MS-13 pressured Molina to join and beat him up several times when he refused. In 2012, at age 15, Molina illegally entered the United States. He was granted permanent resident status in 2014 as a Special Immigrant Juvenile, 8 U.S.C. 1101(a)(27)(J), 1255(h). In March 2016, Molina pled guilty to assault with intent to rob, unarmed. Removal proceedings (8 U.S.C. 1227(a)(2)(A)(i)) were initiated, alleging that Molina had been convicted of a crime involving moral turpitude (CIMT) within five years of his admission for which a sentence of at least one year could be imposed. Molina’s conviction was vacated because he did not receive the constitutionally-required advice about the immigration consequences of his plea. He then pled guilty to felonious assault. The IJ denied Molina’s application for asylum, withholding of removal, and protection under the Convention Against Torture. The BIA sustained the CIMT removal charge. The Sixth Circuit reversed. Molina reasonably relied on Sixth Circuit precedent holding that the Michigan felonious assault statute is not categorically a CIMT. Molina’s applications for asylum, withholding of removal, and protection under the CAT are moot.