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Author: Mara Escowitz

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In the first of two decisions this week applying the Supreme Court’s decision in Descamps v. United States, the Ninth Circuit held that the petitioner’s conviction for aggravated criminal sexual abuse under Illinois law was not a crime of violence for purposes of an enhancement under the federal sentencing guidelines.

The petitioner was convicted under an Illinois law penalizing sexual conduct with a victim “who was at least 13 years of age but under 17 years of age” and at least five years younger than the perpetrator. In seeking an enhancement of the petitioner’s subsequent sentence for illegal reentry, the government asserted that his conviction was a crime of violence because it qualified as a “forcible sex offense”; the sentencing judge agreed.

The Ninth Circuit reversed. The court held that, even assuming sex offenses involving minors are inherently forcible, the Illinois statute under which the petitioner was convicted was not a categorical match with the generic federal definition of a “forcible sex offense” because the Illinois statute includes as minors persons up to 17 years old whereas the federal definition of a minor is someone under 16. The court next held that the age element in the Illinois statute is not divisible because it is stated as a range—“at least 13 years of age but under 17 years of age”—and not as a list of alternative elements, as required to be categorized as a divisible statute under Descamps. Having found that the statute is not divisible, the court held that it was constrained by Descamps from applying the modified categorical approach. The petitioner’s conviction therefore did not qualify as a crime of violence for purposes of the enhancement, regardless whether he did in fact commit a forcible sex offense in its generic form.

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The Board issued its first published decision giving meaning to section 237(a)(4)(A)(ii) of the INA, the removal ground for engaging in “criminal activity which endangers public safety or national security.”

The respondent was convicted under 18 USC § 32(a)(5), the federal statute penalizing interference with the operation of an aircraft with either the intent to endanger the safety of any person or a reckless disregard for the safety of human life. He obtained the conviction after intentionally pointing a laser at the pilot of a Philadelphia Police Department helicopter, causing the pilot momentarily to lose control of the helicopter as it flew over the city.

In assessing whether this crime made the respondent removable, the Board first noted that § 237(a)(4)(A)(ii) requires “criminal activity” but not a conviction. On that basis, the Board held that the categorical approach does not apply to § 237(a)(4)(A)(ii). It relegated this controversial holding to a footnote with only a general citation to the Supreme Court's decision in Nijhawan.

From there, the Board concluded that the phrase “endangers the public safety” must be narrowly construed and does not include typical “single-victim crimes,” regardless of their seriousness. Rather, the phrase is limited to actions that place a large segment of the general population at risk. Having sidestepped the categorical approach, the Board held that the “totality of the circumstances,” including the extent and character of the potential harm and the facts of the underlying activity, could be considered. Because the respondent’s underlying activity endangered public safety by creating the risk of a helicopter crash over a major city, the Board found him removable.

Finally, although DHS also charged the respondent with removability for an aggravated felony crime of violence, the Board held that his crime was not an aggravated felony because it did not involve physical force or a substantial risk that such force would be used against the person or property of another.

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In this long-awaited decision, the Ninth Circuit joined the Third, Fourth, and Eleventh Circuits in rejecting the Attorney General’s decision in Matter of Silva Trevino. In Silva Trevino, then-AG Alberto Gonzales outlined a procedure by which IJs were no longer constrained by the categorical and modified categorical approaches and instead could look to evidence outside the record of conviction when determining whether an individual was inadmissible or removable for a crime of moral turpitude (CIMT).

The Ninth Circuit held that the relevant provisions of the INA at issue in Silva Trevino are not ambiguous and that the court therefore does not owe any deference to that decision. First, the court held that, although the term CIMT is “famously ambiguous,” there is nothing about the substantive definition that permits an IJ to use a different procedure than the one used for other crimes (ie the categorical and modified categorical approaches). Second, the court held that Silva Trevino created an erroneous definition of “convicted of” that would allow an IJ to consider crimes the alien may have committed but of which he was not convicted, conflicting with long-established precedent. Third, the court held that the AG was incorrect in finding that “moral turpitude” is not “an element” of a CIMT. Applying the Supreme Court’s analysis in Nijhawan, the court held that a CIMT is a generic crime “whose description is complete unto itself” and that “involving moral turpitude” is an element of the crime, not a descriptive circumstance of a separately defined crime.

The bottom line is that individuals in the Ninth Circuit can no longer be forced to relitigate their convictions in mini-trials before the IJ. A conviction can only be classified as a CIMT if moral turpitude is established through the same procedures called for involving other generic crimes.

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The Ninth Circuit held that California Penal Code § 210.5, the felony of false imprisonment "for purposes of protection from arrest, which substantially increased the risk of harm to victim, or for the purpose of using person as a shield," is categorically a crime of violence under 18 U.S.C. § 16(b) because, by its nature, it carries a substantial risk that physical force will be used in the course of committing the offense.

In reaching its conclusion, the court first analogized § 210.5 to evading arrest and kidnapping, two other offenses which the court has found to be categorically crimes of violence under 18 U.S.C. § 16(b). The court then explained that the ordinary scenario resulting in a conviction of § 210.5 is one where the defendant used a hostage to protect himself from arrest or harm—a scenario which creates a risk that (1) the defendant will use physical force to retain control over the hostage or prevent intervention by police or others or (2) the police or others will take actions resulting in physical force being applied to the hostage or another bystander.

The latter possibility, that the police might take actions that result in the application of force, does not seem to support the argument given the Ninth Circuit's decision in Teposte v. Holder, 632 F.3d 1049, 1055 (9th Cir. 2011) that only intentional application of force by the defendant satisfies § 16(b). Curiously, the court does not fully address Teposte.

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The Ninth Circuit held that INA § 101(f)(7) (8 U.S.C. § 1101(f)(7)), which establishes an irrebuttable presumption that an individual lacks good moral character if he has been incarcerated for an aggregate period of 180 days or more during the relevant period, is constitutional.

The petitioner in this case served approximately 8 months in prison for vehicular manslaughter. As a result, the IJ found that he lacked good moral character under § 101(f)(7) and therefore denied his applications for cancellation of removal and voluntary departure. The petitioner argued that § 101(f)(7) is unconstitutional because Congress may not use length of time served in custody as a proxy for seriousness and must instead specify the criminal offenses which trigger the presumption that an individual lacks good moral character. The court applied rational-basis review and rejected the argument. The court agreed that § 101(f)(7) might produce disparate outcomes based on variations in state sentencing schemes and might prove over- or under-inclusive in individual cases but held that it was nevertheless rational for Congress to conclude that most aliens who have been convicted of crimes serious enough to warrant 6 months of imprisonment will lack good moral character.

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The Board held that a conviction for unlawful animal fighting under 7 U.S.C. § 2156(a)(1) is categorically a crime involving moral turpitude.

First, the Board reiterated that to involve moral turpitude, a crime must have two essential elements—a culpable mental state and reprehensible conduct. The Board found that 7 U.S.C. § 2156(a)(1) meets both requirements: (1) the statute requires that the offender “knowingly” sponsor or exhibit an animal for fighting, and a mens rea of “knowingly” meets the scienter requirement; and (2) the conduct involved is reprehensible because it involves the intentional infliction of often-fatal harm on animals purely for entertainment. In reaching this conclusion, the Board noted that amendments and expansions to the law since its enactment in 1976 reflect an increasing national consensus against animal fighting, as do similar laws in all 50 states and the District of Columbia. Finally, the Board noted that the respondent had not shown a realistic probability that the statute has been applied to conduct not involving moral turpitude.

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This case clarifies the law regarding the particularly serious crime (PSC) bar to asylum and withholding of removal for cases arising in the jurisdiction of the Third Circuit Court of Appeals.

In Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006), the Third Circuit held that an offense must be an aggravated felony to be a PSC for purposes of withholding of removal. However, the Board reached the opposite conclusion the following year in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). Four federal circuit courts, including the Ninth, have deferred to N-A-M- after finding ambiguity in the statutory language of the PSC-bar to withholding.

In this case, the Board considered the question whether it would continue to follow Alaka in cases arising within the Third Circuit. The answer is no: the Board concluded that because the Third Circuit did not hold in Alaka that the statutory language in section 241(b)(3)(B) is ambiguous, the circuit court is required to defer to the Board’s interpretation of the statute in N-A-M-. Thus, in all circuits, an individual need not have been convicted of an aggravated felony to be subject to the PSC-bars for asylum and withholding of removal.

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The respondent in this case was a long-time LPR indicted by a federal grand jury on charges of bulk cash smuggling.  Post-indictment but pre-conviction, he returned to the United States from a trip abroad and was paroled into the country for prosecution.  He was convicted the following year.

DHS then initiated removal proceedings, charging him with inadmissibility under section 212(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude.  The IJ terminated the proceedings, reasoning that the DHS had not met its burden of establishing that the respondent was seeking admission because, at the time he sought entry into the US, he had not yet been convicted of the crime.

The Board reversed.  Under section 101(a)(13)(C) of the Act, an LPR shall only be considered an applicant for admission if he falls within one of six enumerated categories, including aliens who have committed an offense under section 212(a)(2).  The Board held that because the respondent in this case was paroled into the country for prosecution, DHS could rely on his subsequent conviction to sustain its burden of proving that he was properly charged as an arriving alien.  In reaching this conclusion the Board reasoned that an application for admission is a continuing application and admissibility is determined at the time the application is considered before the IJ, not at the time the alien first presents himself for inspection.  Thus, following this case, when DHS is confronted with a returning LPR who is suspected of criminal activity but has not yet been convicted, it may parole him into the country for purposes of prosecution and rely on the results of the prosecution for purposes of applying section 101(a)(13)(C) in future removal proceedings.

Board member Patricia Cole dissented from the opinion, reasoning that the plain language of section 101(a)(13)(C) demands that the determination of whether a returning LPR is seeking admission must be made at the time he presents himself at a port of entry based on the information then available to DHS.

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This case is a welcome clarification of the exception to section 237(a)(2)(B)(i), the controlled-substance ground of removability, where the respondent’s conviction is for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.”

The respondent in this case was convicted in 2010 of simple possession of less than 10 grams of marijuana and possession of drug paraphernalia (specifically, a plastic baggie in which the marijuana was contained) in violation of Arizona law. In bond proceedings, the DHS asserted that the convictions made the respondent removable under section 237(a)(2)(B)(i) and thus subject to mandatory detention under section 236(c)(1)(B). The Immigration Judge disagreed, finding that the respondent was not removable under section 237(a)(2)(B)(i) because her convictions fell under the simple-possession exception.

On appeal of the custody determination, the Board rejected the government’s argument that the respondent could not benefit from the exception to section 237(a)(2)(B)(i) because she had been convicted of two separate state offenses. The Board held that the term “single offense” in section 237(a)(2)(B)(i) describes the totality of an individual’s acts on a single occasion, rather than a generic crime, and thus calls for the “circumstance-specific” approach adopted by the Supreme Court in Nijhawan v. Holder, 557 U.S. 29 (2009). The Board held that the exception therefore applies to an individual convicted of more than one statutory offense so long as each offense arose from a single act of simple marijuana possession. The Board further held that the individual need not even have been convicted of simple marijuana possession to qualify for the exception: the exception applies to a conviction, such as possession of drug paraphernalia, if the acts that led to it were closely related to simple possession or ingestion of 30 grams or less of marijuana.

Lastly, the Board rejected the government’s argument that the respondent’s record of conviction left open the possibility that the marijuana baggie was possessed for purposes of sale, not possession. The Board reaffirmed prior case law holding that, to establish removability under section 237(a)(2)(B)(i), the government bears the burden of proving the conviction in question does not fall under the simple-possession exception and that an inconclusive record will not satisfy the burden.

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This case supplies a definition for the phrase “crime of stalking” under INA § 237(a)(2)(E)(i). Although the phrase is not defined by the Act, the Board held that it should be given its “ordinary, contemporary, and common meaning,” which is: (1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death. (The Board left open the question whether, to qualify as a crime of stalking, there must also be a fourth requirement that the conduct actually caused the victim to be placed in fear of bodily injury or death.)

Applying this definition, the Board held that California Penal Code § 646.9 is a crime of stalking under § 237(a)(2)(E)(i) because it requires proof that the defendant “willfully, maliciously, and repeatedly follow[ed] or willfully and maliciously harasse[d] another person and . . . ma[de] a credible threat with the intent to place that person in reasonable fear for his or her own safety, or the safety of his or her immediate family,” thereby satisfying all three elements of the generic crime.

Notably, the Board commented in a footnote that at least one California Court of Appeal decision holds that the term “safety” in Penal Code § 646.9 includes “endangerment or hazard” in addition to physical safety. This leaves open potential arguments that the statute is not a categorical match with INA § 237(a)(2)(E)(i). Nevertheless, the Board noted that in this particular case the respondent had not argued, nor was there any evidence, that the fear experienced by his victim was anything other than a fear of physical safety.

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