Immigration attorney Scott Mossman maintains this blog to discuss recent court decisions that relate to the immigration consequences of criminal convictions and crime. The focus is on decisions by the U.S. Supreme Court, U.S. Court of Appeals for the Ninth Circuit, and the Board of Immigration Appeals. Occasionally it addresses decisions by other courts of appeal and California state law developments.
In this case arising from the Commonwealth of the Northern Mariana Islands (CNMI), the Ninth Circuit held that Etumai Felix Mtoched’s 1994 conviction for assault with a deadly weapon in violation of 6 N. Mar. I. Code § 1204(a) was a deportable crime involving moral turpitude. It further found that ground of deportability could retroactively apply to Mr. Mtoched even though he was convicted of the offense before the Immigration and Nationality Act (INA) took effect in CNMI. Finally, it held that Mr. Mtoched could not apply for a 212(h) waiver of inadmissibility because he was already in the U.S. and was not eligible to adjust status.
Concerning the first question of whether Mr. Mtoched’s assault with a deadly weapon conviction was a crime involving moral turpitude (CIMT), the panel found the statute of conviction was “divisible into three distinct subparts, all involving bodily injury to another person with a dangerous weapon: (1) threaten to cause, (2) attempt to cause, or (3) purposely cause.” In reaching this conclusion, however, the panel appears to have assumed divisibility from the text of the statute. Its opinion failed to address prior precedent that holds an offense is divisible only if a jury must unanimously agree on which of multiple alternative elements a defendant committed. See Rendon v. Holder. The Mtoched panel simply ignored that precedent even though the Ninth Circuit had declined to rehear Rendon en banc more than a month earlier.
The panel also held that the CIMT ground of deportability could be applied to Mr. Mtoched even though he was admitted to CNMI, the crime was committed, and he was convicted before the U.S. immigration laws applied to CNMI. As the government agreed, Congress was not explicit in applying the INA to CNMI retroactively. The court therefore considered whether applying the change to Mr. Mtoched “would impair rights [he] possessed when he acted, increase [his] liability for past conduct, or impose new duties with respect to transactions already completed.” It determined that Mr. Mtoched’s conviction made him deportable under the law that existed in CNMI prior to the INA, and the change also did not make him ineligible for any form of discretionary relief that he was previously eligible for. Both before and after the change, his only hope to remain in CNMI was an exercise of prosecutorial discretion. The fact that the CNMI Attorney General did not move to deport him and the federal government did does not make the change in law retroactive.
At the end of the decision, the panel held, as the Board of Immigration Appeals did, that Tmoched was not eligible for 212(h) because he was present in the U.S. and was not eligible to adjust status. It added a cryptic note saying that he was not eligible to adjust status because he was present in the U.S. as “a citizen of Palau who may enter the United States as a non-immigrant under the section 141 of the Compact of Free Association with the Republic of Palau.” It is true that persons admitted without a visa, which is apparently how Mr. Tmoched was admitted, are ineligible to adjust–unless they are eligible for adjustment of status as an immediate relative (spouse or minor child under 21 of U.S. citizen, or parent of U.S. citizen 21 years of age or older). Thus, the real problem appears to be that Mr. Tmoched did not have one of those relationships.
When is a penal statute “divisible” and thus susceptible to review of an individual’s record of conviction for purposes of determining deportability? The Supreme Court held in Descamps v. United States, 133 S. Ct. 2276 (2013) that a statute is divisible if it contains an element that may be satisfied by any one of multiple alternatives enumerated in the statute, at least one of which meets a federal generic definition and at least one of which does not. That decision, however, does not answer whether to be divisible a judge or jury must unanimously agree on which of the alternatives was committed in a specific case. Attorney General Loretta E. Lynch took jurisdiction over cases of Martin Chairez-Castrejon and Vera Sama to weigh in on that question.
The Ninth Circuit held that George Camacho Garcia did not validly waive his right to appeal because the immigration judge misadvised him as to whether his California theft conviction was an aggravated felony. Mr. Camacho Garcia was convicted of grand theft in violation of California Penal Code (PC) section 487(a) and received a sentence to 16 months of imprisonment.
The court held Mr. Camacho Garcia’s theft conviction was not categorically an aggravated felony. California’s definition of theft at PC 484 defines the offense to encompass theft of property, theft of labor, and “consensual” taking by false pretenses (i.e., fraud). The federal generic definition of theft, however, is limited to “ a taking of property or an exercise of control over property  without consent  with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The federal definition therefore does not exactly correspond to the California definition, since it does not include taking by false pretenses or taking of labor. Thus, a California theft conviction with a sentence to imprisonment of one year or more is not categorically an aggravated felony.
The Camacho Garcia panel then applied the modified categorical approach to determine whether the conviction documents narrowed the conviction to the federal definition. It found that the charging document did specify theft of property (as opposed to labor), so the conviction matched that element of the federal definition. The conviction documents, however, did not specify whether the theft was by unlawful taking (without consent) or false pretenses (with consent). The conviction therefore did not match the federal definition.
Note, the issue of divisibility was not raised in the briefs on this case. The court accordingly did not address whether a California theft conviction is even susceptible to the modified categorical analysis of whether the conviction meets the federal definition.
In Matter of Alcibiades Antonio Pena, the Board of Immigration Appeals held that a permanent resident returning to the United States may not be charged with being an inadmissible arriving alien unless one of the exceptions at INA 101(a)(13)(C) apply–even if the government alleges the permanent resident was not eligible for his status at the time he received it.
Customs and Border Protection treated Alcibiades Antonio Pena, a foreign national admitted to lawful permanent resident status, as an arriving alien and charged him with inadmissibility for misrepresentation, false claim of U.S. citizenship, and no valid admission document. It charged him with these grounds based on an investigation by the U.S. Department of State that occurred prior to his receipt of permanent resident status (and that was known by USCIS when it granted him permanent resident status). Essentially, CBP alleged that Mr. Pena was inadmissible because he was not eligible to obtain permanent resident status–it disagreed with USCIS’s decision to grant the application. (Unfortunately, CBP far too often attempts to interpret the documents in a resident’s A-file to see if USCIS made a mistake. It can be hard to defend against these post hoc reviews if USCIS does not fully document the basis for the decision in the A-file.)
The Board held that charging Mr. Pena with inadmissibility was not proper. A foreign national may be charged with a ground of inadmissibility only if one of the 101(a)(13)(C) exceptions apply, which include permanent residents who: have abandoned or relinquished that status, been absent from the U.S. for a continuous period of more than 180 days, engaged in illegal activity after departing the U.S., departed while under removal or extradition proceedings, committed an inadmissible criminal offense, or who is attempting to enter (or has entered) without inspection and admission. None of these exceptions apply to Mr. Pena’s scenario. Therefore, the government instead should have admitted him to the U.S. It could, however, then charge him with deportability for not being admissible at the time of admission to lawful permanent resident status.
Note that the difference between a charge of inadmissibility and a charge of deportability is important, since an arriving alien charged with inadmissibility is not eligible to obtain an immigration judge’s review of a bond decision. A permanent resident treated as an arriving alien also is not eligible to apply for readjustment of status before the immigration judge, and instead would have to make that application to USCIS without the benefit of appellate review. There also is the open question, so far as the Board is concerned, as to which party bears the burden of proof if the returning resident is (properly) charged with inadmissibility. Must the government prove inadmissibility or must the returning resident prove he is not inadmissible? On the other hand, for a charge of deportability (as the Board held applies to Mr. Pena) the government always bears the burden of proof. The determination of who carries the burden of proof often determines who will win the case, so Pena is a very important decision.
The Board of Immigration Appeals held in this case that the service of a Notice to Appear in Removal Proceedings (NTA) does not stop the accrual of time toward eligibility for cancellation of removal if the NTA was never filed with an immigration court.
In Ordaz-Gonzalez, the former INS served the NTA on the respondent in 1998. Ordaz-Gonzalez would not have been eligible for cancellation of removal as a non-permanent resident (INA 240A(b)(1) cancellation) if the INS had then filed that NTA with the immigration court because he could not have satisfied the requirement that he have 10 years of continuous physical presence in the U.S. prior to commencement of removal proceedings (certain other events also stop the accrual of time). However, INS never filed that NTA. Instead, in 2004 the successor agency, DHS, served Ordaz-Gonzalez with a new NTA, which it did file with the court. By that time, he alleged that he did have more than 10 years of continuous presence. The immigration judge disagreed. The immigration judge found that the service of the first NTA stopped his accrual of continuous residence.
The Board sustained Ordaz-Gonzalez’s appeal of that decision. The Board found the statutory language did not specifically address Ordaz-Gonzalez’s unusual situation, noting that Congress probably would not have anticipated it. (Rather, Congress’s intent in adding the stop-time rule was to remove an incentive for dilatory tactics in removal proceedings where the NTA was filed with the court.) The Board found the best reading of the statute in Ordaz-Gonzalez’s unusual situation was to find that an unfiled NTA does not stop time. Otherwise, even service of an invalid or defective NTA would stop time, as well as service of an NTA where the respondent prevailed in the prior removal proceedings.
In this decision issued in June of 2015, the Board of Immigration Appeals stated that the “ordinary case” test applies to its determination of whether a felony battery conviction under section 784.041(1) of the Florida Statutes meets the crime of violence definition at 18 U.S.C. 16(b).
The ordinary case analysis (and I use the term “analysis” with some hesitation) means that a court applies judicial imagination to hypothesize whether a particular offense would typically involve a substantial risk that the offender may use violence in the course of committing the offense. For example, the Supreme Court has found that residential burglary is the classic example of such an offense, even though the burglar may commit the offense when no one is home and the risk of violence being used is little to none.
Mario Francisco-Alonzo had argued that the Supreme Court’s 2013 decision in Moncrieffe v. Holder meant that a crime is a crime of violence only if the least conduct that has a probability of being prosecuted involves a substantial risk of violence. He argued that an offender could commit battery in violation of section 784.041(1) with only a minimal amount of force but still cause serious harm to a so-called eggshell victim and that such a case would not involve a substantial risk of violence. The Board conceded that there might be a situation where a defendant could be prosecuted for use of minimal force against an eggshell victim, but the Board rejected his argument because it concluded that is not the ordinary case for felony battery under section 784.041(1).
The Board of Immigration Appeals finally capitulated in this decision to what it recognized was the “overwhelming circuit court authority” that an aggravated felony conviction does not bar a waiver of inadmissibility under 212(h) unless the applicant has “previously been admitted to the United States as an alien lawfully admitted for permanent residence.” In other words, a 212(h) waiver of criminal inadmissibility is available if a permanent resident adjusted to that status in the U.S., but not if she entered the U.S. on an immigrant visa. Nine circuit courts had found that conclusion compelled by the plain language of the statute, so the Board gave up the fight and withdrew from its decisions in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).
Admittedly, though, one can see why the Board sought to have the aggravated felony bar apply to permanent residents regardless of whether they adjusted status or entered on an immigrant visa: There seems to be no rational basis for distinguishing between the two groups. Without a rational basis for the distinction, denying 212(h) to permanent residents who entered the U.S. on immigrant visas would violate due process. I am sure that will be the next argument for intrepid immigration lawyers like myself–the 212(h) aggravated felony bar should not apply to immigrant visa entrants either!
The Board of Immigration Appeals held that administrative closure was appropriate in this case because the respondent’s deportability turned on the outcome of a direct appeal of his conviction. In reaching that decision, the Board applied the factors discussed in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (granting administrative closure based on government’s unexplained delay in adjudicating a visa petition).
The Avetisyan factors include, but are not limited to:
(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.
The Board found these factors favored administrative closure in Montiel’s case. The only charge of removability was his for conviction alien smuggling, an aggravated felony, and the Board found it significant that this conviction followed a jury trial. The Board also found it significant that Montiel was appealing his conviction, rather than merely the sentence imposed. Further, it implicitly found that Montiel’s appeal was not frivolous because it noted that administrative closure to await the outcome of an appeal would not be appropriate where the appeal is facially frivolous. Given those factors, the Board administratively closed Montiel’s removal proceedings.
The Board of Immigration Appeals previously held that Chairez’s conviction for felony discharge of a firearm in violation of section 76-10-508.1 of the Utah Code is a removable firearms offense, but not an aggravated felony. Visit my previous post for that decision. DHS did not like that decision and filed a motion to reconsider, arguing it was not consistent with the emerging law of the Tenth Circuit (in which Chairez’s removal proceedings were held).
The Board’s previous decision in Chairez concluded that a conviction of section 76-10-508.1(1)(a) is not categorically a crime of violence aggravated felony because the conviction may rest on intentional, knowing, or reckless conduct and reckless conduct will not support a crime of violence conviction.
The Board’s previous decision further held that it could not look to the record of conviction to determine whether Chairez pleaded guilty to committing the offense with intent, knowledge, or recklessness. The Supreme Court in Descamps held that so-called modified categorical analysis was permitted only where the statutory definition of the offense was divisible into multiple alternative elements. And the Board understood elements to mean those facts about the crime that a jury would need to agree upon to convict (as opposed to means, such as baseball bat vs. pipe, on which a jury need not agree). The Board found that Utah law did not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness in discharging a firearm in violation of section 76-10-508.1(1)(a), so it held the offense was not divisible and thus the record of conviction could not narrow the conviction to match the aggravated felony definition.
DHS argued on a motion to reconsider, however, that a recent decision of the Tenth Circuit understood the “alternative elements” referred to in Descamps to mean any alternative phrases in a statutory definition of an offense, regardless of whether a jury must agree upon one of the alternatives to convict. The Board that agreed the Tenth Circuit understood the Supreme Court’s decision this way and found that it was compelled to apply that interpretation in the Tenth Circuit. Under that interpretation, it does not matter whether jury unanimity was necessary on whether a defendant discharged a firearm with intent, knowledge, or recklessness. The court may look to the record of conviction to determine which of those alternatives the defendant pleaded to in order to determine whether the conviction satisfies the aggravated felony definition. The plea agreement in Chairez’s case specified that he “knowingly discharged a firearm in the direction of any person,” so the record of conviction satisfied the crime of violence aggravated felony definition in the Tenth Circuit.
Notably, though, the Board declined to retreat from its previous decision in Chairez, except in those circuits like the Tenth that understood the “elements” in Descamps to include what would normally be considered “means” that need not be agreed upon by a jury. That emerging circuit split has the Tenth, First, and Third Circuits one side and the Fourth, Ninth, and Eleventh on the other (although the Ninth Circuit did not faithfully apply the jury unanimity understanding of elements in a case involving a controlled substance–see Coronado v. Holder). Chairez II held that the Board would apply the law of whatever circuit the removal proceedings occurred in or, if there is no controlling law, then the opinion in Chairez I.
Thus, in the First, Third, and Tenth Circuits defense counsel must be extremely careful about what ends up in the record of conviction. Indeed, defense counsel in every circuit should do that, at least until the Supreme Court resolves the circuit split. What does it mean to be careful about what ends up in the record of conviction? Take Chairez’s case for instance. Since Utah apparently does not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness, it would seem perfectly acceptable to list all three in the plea statement. Instead of “knowingly discharged a firearm in the direction of any person,” the plea could read “intentionally, knowingly, or recklessly discharged a firearm in the direction of any person.” With the reckless alternative included, DHS could not meet its burden of proving deportability. Even better if you can get the prosecutor to agree to a plea that specifies only reckless conduct.