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Author: Scott Mossman

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In a Christmas gift to a couple of my clients, the Supreme Court rejected the Board of Immigration Appeal's statutory comparability test for use of former section 212(c). Since 212(c) refers to inadmissibility, the test provided that the waiver is available for a ground of deportability only if the statutory text is substantially similar to the text of a ground of inadmissibility. The Supreme Court, in a rare unanimous decision, convincingly demonstrated that the Board's test was untethered to the plain language of 212(c) and that it was arbitrary and capricious. The comparability test is arbitrary and capricious because determining whether a ground of deportability is too broad or too narrow has nothing to do with the immigrant's fitness to remain in the U.S. In other words, the inclusion of too many or too few other crimes in a ground of deportability is irrelevant. The Court therefore held the Board's rule did not survive even the deferential review given to it under Administrative Procedure Act.

The Court noted the Board was free to develop a new rule, but the reasoning behind the Court's decision suggests a rule that focuses on the immigrant's actual conviction. If it would make an immigrant inadmissible, then it should to be waivable under 212(c) even for a charge of deportability. The Court did not actually hold that, but indicated that such a rule would not be irrational. Hopefully, the Board will get the hint.

Read the opinion at http://www.supremecourt.gov/opinions/11pdf/10-694.pdf.

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Yours truly attended the en banc oral argument today in Young v. Holder. Two judges led the questioning, Chief Judge Kozinski and Judge Kleinfeld. Judge Kozinski's questions suggested agreement with the government's argument that a plea to a charging document that alleges commission of an offense in the conjunctive (e.g., transportation, offer to sell, and sale) establishes admission to violating the crime in all of the various alleged ways of committing the offense.

Judge Kleinfeld (a former criminal defense attorney) repeatedly cited the historical practice of charging in the conjunctive and proving or pleading in the disjunctive. In other words, he recognized that prosecutors charge all of the various ways of committing an offense under the statute even where the defendant only committed it in one way. He thus strongly suggested that a plea to a complaint in the conjunctive established a plea to only one of the offenses.

On the other hand, questions by Judge Kleinfeld and other judges indicated that they might overrule the decision in Sandoval Lua. Sandoval Lua held that an inconclusive record of conviction was sufficient to establish eligibility for relief from removal. Thus, where a defendant is convicted of an offense that could be an aggravated felony or could not be an aggravated felony, Sandoval Lua had held that an ambiguous record was sufficient to avoid ineligibility for cancellation of removal (which is not available for persons convicted of aggravated felonies).

I had predicted the possibility of Sandoval Lua being overruled in a previous blog post, but certainly hope that I am not proved right. The loss of Sandoval Lua is a troubling possibility, since it is not always possible to obtain crystal clear records of conviction--particularly for convictions from years or even decades in the past.

Watch the oral argument at http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006171

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The Ninth Circuit overruled its previous precedent in United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004), and held that a California abstract of judgment may be used to establish whether a respondent in removal proceedings has been convicted of first or second degree burglary. It relied on the en banc decision in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008), which had held that a California minute order could be used for the same purpose. The court found that an abstract of judgment are contemporaneously prepared judicial record of the plea and sentence based on language from a California Supreme Court case. As a contemporaneous record that the defendant could review and challenge, it held it was within the reviewable record of conviction.

The abstract may be contemporaneously prepared in some cases, but often it is prepared months after the plea in cases where sentencing does not occur immediately. Nor is it really a record of the basis for the plea, but rather is primarily a sentencing document. It therefore is not comparable to a minute order from a change of plea hearing.

The more surprising holding of Kwong, however, was that California first degree burglary is a crime of violence under 18 USC 16(b) as a felony that involves a substantial risk that violent physical force will be used against the person or property of another in committing it. Although prior Ninth Circuit precedent held the same, I say surprising because the recent en banc decision in Aguila Montes de Oca v. Holder recognized that California burglary does not necessarily require a trespassory entry. It recognized that it would include a fireman called to a burning building who enters to fight the fire and also to misappropriate valuables inside or a servant who enters with his master's home with the intent to steal the silver. These types entries are not trespassory and thus are not the types of situations where there is no substantial risk that the offender will use violent physical force to commit the crime.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/12/07/04-72167.pdf

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In a decision with rather shoddy reasoning, in this blogger's opinion, the panel held that the noncitizen was barred from withholding of removal under INA 241(b)(3) for conviction of a particularly serious crime.

The offered justification for concluding that the respondent's residential burglary conviction(s) (one, or all three collectively, the opinion does not say) is a particularly serious crime is that California residential burglary is a crime of violence under 18 USC 16(b). As a crime of violence with a sentence to a year or more, a crime would be an aggravated felony, but that does not automatically equate to a particularly serious crime, as the panel acknowledges. Rather, the panel seems to simply equate a crime of violence with a particularly serious crime. It did not cite any authority for this conclusion and this blogger is not aware of any. It did not even discuss this premise in any detail, suggesting that it was an oversight.

The panel held that "residential burglary under California Penal Code § 459 constitutes a crime of violence because it is a felony 'that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.' 18 U.S.C. § 16(b)." This is contrary to the reasoning of a recent en banc Ninth Circuit.

The Ninth Circuit in Aguila Montes de Oca recognized that California's burglary statute penalizes entry into a residence with intent to commit theft or any felony even if the entry is licensed or privileged or even at the owner's personal invitation. See People v. Frye, 959 P.2d 183 (Cal. 1998), overruled on other grounds by People v. Doolin, 198 P.3d 11 (Cal. 2009). For example, a servant who enters his master's house with the intent to appropriate the family silver while at work commits a residential burglary under California law. Likewise the firefighter who enters a burning building with the intent to appropriate valuables while fighting a fire. Thus, the Ninth Circuit held that California burglary is not categorically a burglary under the generic federal definition, which requires an unlawful or unprivileged entry.

Whether a California burglary meets the generic federal definition is admittedly a different question than whether the crime involves a substantial risk that (violent) physical force will be used in the course of committing the crime. And the Lopez-Cardona panel distinguished Aguila on this basis. However, the servant and firefighter examples of licensed or privileged entries are precisely the types of situations where a California burglary would not by its nature involve a substantial risk of the use of physical force being used in the course of the crime. Another example, courtesy of the ILRC, shows it even more clearly: a person commits a California burglary when he enters a home at the owner's invitation with the intent to fraudulently sell worthless life insurance. That type of theft or felony does not carry an inherent risk of violent physical force being used in the course of the crime. So, it is not categorically a crime of violence (although that still might be established under the modified categorical approach, particularly post-Aguila).

Finally, the decision notably failed to even cite the Ninth Circuit's recent tour-de-force decision by another panel on the particularly serious crime bar to withholding--Delgado v. Holder. Just another indication that this decision was not carefully vetted.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/18/09-71661.pdf

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The Ninth Circuit amended its earlier decision in this case and denied rehearing. It held that counsel's concession at the pleading stage that the respondent was removable for conviction of possession of cocaine for sale under California Health and Safety Code section 11351 was sufficient to establish removability (at least absent contradictory evidence). The only evidence in the record was a docket sheet filed by DHS that showed a conviction for 11351, but which did not identify the substance involved. That would not have been enough if respondent's counsel had denied the allegations and charge of removability.

The court distinguished admissions made by the respondent in the later evidentiary phase of the removal proceedings, which are not sufficient on their own to establish removability under the modified categorical approach. At the pleading stage, on the other hand, an admission predictably results in DHS not introducing evidence to support its charges. In short, the respondent should not complain about the insufficiency of the evidence when his counsel's admissions obviated the need to present that evidence. (Probably, the unsubmitted conviction documents in this case were sufficient and the only strategy was to buy time for post-conviction relief, which obviously was not successful.)

The noncitizen also advanced meritless arguments about equitable estoppel (because USCIS negligently had granted him permanent resident status previously despite knowing about the possession for sale conviction) and 212(h) eligibility (despite the fact that the waiver is not available for controlled substance convictions other than simple possession of 30 grams or less of marijuana).

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/23/07-70118.pdf

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In Matter of Islam, the Board adhered to its previous decision in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), interpreting the ground of deportability for conviction of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct.

The Board held that the respondent's convictions in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards at several retail outlets on five separate occasions over the course of a day did not arise out of a “single scheme of criminal misconduct.” Although all of the crimes occurred on a single day and all followed a similar modus oparandi, this was not enough under Adetiba's rule.

Under Adetiba, Board held that a single scheme "refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct. The related question is whether there is enough time after each crime for the person to reflect on it and disassociate from the criminal activity.

In deciding to follow Adetiba, the Board declined to apply the more expansive interpretation of the Second Circuit even within that circuit, citing its authority to interpret ambiguous statutory phrases despite previous federal court authority to the contrary. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3733.pdf.

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The Ninth Circuit upheld the denial of relief from removal for lack of good moral character The immigration judge and BIA found the applicant lacked good moral character because he had 7 or 8 DUI convictions spanning 23 years, including one that resulted in an 8 month prison sentence immediately before he was put in removal proceedings. He also continued to drive without a license even after he was put in proceedings.

The applicant was seeking registry, a form of relief for persons who have continuously resided in the U.S. since before 1972 and who have good moral character and no disqualifying acts. The court found that the immigration judge properly considered past conduct to determine the applicant's current character, even though registry does not require good moral character for a specified period of time.

Given the egregious facts of this case, the outcome was not surprising. The opinion is significant only because the Ninth Circuit found jurisdiction to review the good moral character finding at all. The Act prohibits judicial review of discretionary decisions specified to be in the authority of the Attorney General. The ultimate decision to grant registry is specified to be in the AG's discretion, but the underlying decision regarding whether good moral character exists is not. Thus, the court found it could review that determination.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/07/06-71680.pdf

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Definitively answering a long-standing question, the Board held the government bears the burden of proving that a permanent resident returning to the U.S. after travel abroad should be treated as an "applicant for admission." Permanent residents generally are not considered applicants for admission unless one of the exceptions at INA 101(a)(13)(C) applies. If an exception applies, then the permanent resident is subject to additional stricter grounds for removal than would otherwise apply. For example, a single conviction for a crime involving moral turpitude might not make a permanent resident removable unless he is considered an applicant for admission.

The allocation of the burden of proof can be determinative because whether a crime involves moral turpitude often is not clear from the record of conviction. If the noncitizen bore the burden of proof, an inconclusive record of conviction might make him removable. By placing the burden on the government, of clear and convincing evidence no less, Rivens protects permanent residents from loss of their status and removal based on inconclusive evidence.

In a second holding, the Board found that the crime of being an accessory after the fact, 18 U.S.C. § 3, is a crime involving moral turpitude only if the underlying offense involved moral turpitude. The Board found that helping someone after he commits a crime is turpitudinous (base, vile, or depraved) if the crime committed was turpitudinous. This contrasts with the Ninth Circuit's decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), although the Board suggested otherwise.

The Board's holding does not stand to reason, though, since an accessory after the fact does not participate in the underlying crime. Rather, being an accessory after the fact is a completely separate crime that should not depend on the nature of the underlying offense.

For example, being an accessory after the fact would include giving your son $100 when you know he is on the run from the police. Does giving your son the money become more or less turpitudinous depending on whether the police are after him for grand theft (a crime of moral turpitude) or possessing an unregistered firearm (not a crime of moral turpitude)? No, in either case the mother is not helping her son commit the crime; she is helping him to avoid standing trial for it. This is a crime and bad parenting, but not vile or depraved.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf

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The Board of Immigration Appeals determined that a New York attempted arson offense was an aggravated felony under INA 101(a)(43)(E) as an offense described in 18 U.S.C. § 844(i). It found the New York statute's lack of the federal jurisdictional element of interstate commerce was not significant.

The Board reached this conclusion because the aggravated felony definition has a clause that provides, “the crimes specified are aggravated felonies regardless of whether they fall within the jurisdiction of the federal government, a state, or, in certain cases, a foreign country.” Since virtually all state (and foreign) crimes lack a federal jurisdictional element, a contrary conclusion would render this clause meaningless.

The Board also noted a provision for the early removal of nonviolent offenders that included an exception for offenders in state custody for this particular aggravated felony, which likewise would be superfluous if section 101(a)(43)(E) did not cover state offenses.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3730.pdf.

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The Supreme Court has agreed to address whether IIRAIRA's definition of when a lawful permanent resident is seeking "admission" should be applied to an LPR returning after a brief, innocent, and casual trip abroad who pled guilty to a crime of moral turpitude prior to IIRAIRA.  Vartelas is a Second Circuit case that conflicts with decisions from the Ninth and Fourth Circuits. See Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004).

View the docket at http://www.supremecourt.gov/qp/10-01211qp.pdf

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