The Board of Immigration Appeals held that the exception to the controlled substance ground of deportability for a "single offense involving possession for one's own use of thirty grams or less of marijuana" is a factual question that may be decided by an immigration judge if the record of conviction is not conclusive. In other words, it is a "circumstance specific" inquiry. It is not a categorical inquiry, where the only question is whether the legal elements of an offense match a federal definition.
Author: Scott Mossman
Matter of Ka A. Paek
The Board held that an immigrant admitted at a port of entry as a conditional permanent resident is subject to the 212(h) aggravated felony bar. That bar prohibits an immigrant admitted to the United States as "an alien lawfully admitted for permanent residence" from applying for a 212(h) waiver of criminal inadmissibility if the alien has been convicted of an aggravated felony after admission. The question here, though, is whether the bar applies if the immigrant was admitted to the U.S. in lawful permanent resident status on a conditional basis, which occurs if the permanent resident status is based on a marriage entered into less than 2 years before the admission.
The Board held that the aggravated felony bar does apply to immigrants admitted as conditional residents under the plain language of the Act. It reached that conclusion because the Act refers to those immigrants as having "obtain[ed] the status of lawful admission for permanent residence," albeit on a conditional basis. The Board, however, failed to address why the conditional status should not matter. The requirements to remove that conditional status place these immigrants in a much different situation than immigrants truly admitted to permanent residence in the sense of having the right to reside in the U.S. indefinitely. Perhaps the distinction does not matter, but the Board should have stated why.
Juan Carlos Hernandez-Gonzalez v. Holder
Rejecting the BIA's approach in E.E. Hernandez, the Ninth Circuit held that a gang enhancement under California Penal Code section 186.22(b)(1) does not transform a conviction into a crime involving moral turpitude if the offense was not one already.
Here, Hernandez-Gonzalez was convicted of possessing a billy club, which generally would not involve moral turpitude because the offense does not involve threatening or hurting anyone, but rather mere possession. The Board found, in an unpublished decision, that the gang enhancement made Hernandez-Gonzalez's offense a crime involving moral turpitude. This is consistent with the Board's later published decision in E.E. Hernandez. E.E. Hernandez reasoned that the specific intent to promote street gang activity , which is required for a PC 186.22 enhancement, is always morally turpitudinous because street gang activity is morally turpitudinous.
The Ninth Circuit, however, found that California law permits a gang enhancement where the only street gang activity being promoted is the underlying crime itself, which need not involve moral turpitude. The Ninth Circuit pointed to California court decisions applying the gang enhancement to weapons offenses where the weapons were discovered during probation or other searches, such as during traffic stops, that did not involve any actual use of the weapon. The Ninth Circuit held that weapons possession in such circumstances is not a morally turpitudinous. It is criminal, but it does not involve the type of evil intent required for a crime involving moral turpitude.
Matter of E.E. Hernandez
The Board of Immigration Appeals held that malicious vandalism in violation of California Penal Code section 594(a) was categorically a crime involving moral turpitude where it is accompanied by a finding that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, a sentencing enhancement under PC 186.22(d).
First, the Board found that the immigration judge had erred by analyzing the vandalism and the enhancement separately. Rather, the Board held that they must be considered together as a single offense. The enhancement requires a specific intent to promote criminal activity by a street gang, so that means an act of malicious vandalism with the enhancement must be done with the specific intent to promote that activity. What activity? The Board cited "turf wars and gang violence." The Board found that gang vandalism promoted that activity.
I would argue, though, that vandalism with a gang enhancement is not a CIMT under the categorical approach if there is a realistic probability that a defendant might be convicted of it for conduct that does not promote turf wars or gang violence. The Board seems to assume that the only vandalism that comes within the statute is gang graffiti, which obviously stakes out territory and could lead to confrontations.
I would be interested to know if any of my readers could think of a scenario where a person could be convicted of vandalism with a gang enhancement (for the benefit of a gang and to promote criminal activity by the gang) that is not necessarily turpitudinous. If so, is there a realistic probability of it being prosecuted? Submit a comment below if you can.
Roberto Roman-Suaste v. Holder
The Ninth Circuit held in Roberto Roman-Suaste v. Holder that a conviction for California Health and Safety Code section 11359 (possession of marijuana with intent to sell) is categorically an aggravated felony as a drug trafficking offense pursuant to INA § 101(a)(43)(B), 8 USC § 1101(a)(43)(B).
The petitioner had argued under Moncrieffe that there might be situations where a defendant is convicted of HS § 11359 for distribution for insignificant payment or payment for social, medical, or family purposes, which would not be illicit trafficking. The court disagreed. It found that any type of distribution for remuneration would be illicit trafficking and thus an aggravated felony under Moncrieffe.
The court further rejected the petitioner's argument that California extends aiding and abetting liability beyond the generic federal definition, an argument that had little chance given the Supreme Court's decision in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).
Carlos Alberto Rendon v. Holder
In an extremely helpful decision for noncitizen defendants, the Ninth Circuit held in Rendon v. Holder that California Penal Code § 459 (burglary) is not an aggravated felony as an attempted theft offense.
A state conviction meets the generic federal definition of an attempted theft offense if it includes the elements of intent to commit a theft offense and an overt act constituting a substantial step towards commission of such an offense. California burglary under section 459 consists of entry into a building, vehicle, or structure with intent to commit theft or any felony. Thus, it is not necessarily an attempted theft offense because it might involve entering a structure to commit some other crime that is a felony.
Prior to the Supreme Court's decision in Descamps, courts within the Ninth Circuit thus would have examined the record of conviction to determine whether it indicated a plea to entry to commit theft. If so, then the conviction would be an aggravated felony. Descamps, however, held that such an examination of the record (called a "modified categorical analysis") was possible only where the offense is divisible. Divisibility means that the statute of conviction specifies multiple alternative crimes, at least one of which meets a federal definition and at least one of which does not. Multiple alternative crimes means the statute contains multiple alternative elements of functionally separate crimes, not alternative means of committing a single crime. An element is something a jury must unanimously find beyond a reasonable doubt. On the other hand, a jury need not agree on the means of committing a crime (for example, a jury may not need to agree on the type of weapon used in an assault).
The Ninth Circuit held that "theft or any felony" is not divisible because they are alternative means, not alternative elements. A jury need not agree on whether the defendant entered a structure with intent to commit theft or any other felony to return a conviction for burglary under PC 459. Since the offense is not divisible, a reviewing court cannot turn to the record of conviction to determine if the conviction was for entry with intent to commit theft.
California PC 459 therefore can never meet the definition of an attempted theft offense because it is broader than the federal generic definition and the modified categorical analysis cannot be used to narrow the conviction to meet the definition.
Vinh Tan Nguyen v. Holder
The Ninth Circuit upheld a Board of Immigration Appeals decision that a conviction for misuse of a passport to facilitate an act of international terrorism in violation of 18 U.S.C. §§ 1544, 2331, is a categorical crime involving moral turpitude.
The conviction resulted from the petitioner's involvement in efforts to overthrow the communist government of Vietnam, specifically an apprehension in the Philippines as he allegedly was assembling explosive devises for use against the Vietnamese Embassy in Manila.
First, the court held that because section 2331 (intent to facilitate an act of international terrorism) increases the statutory maximum penalty for simple misuse of a passport under section 1544, it is an element of the offense and is to be considered under the categorical analysis of a conviction.
Second, the court agreed with the BIA that intent to facilitate international terrorism is categorically turpitudinous, since it necessarily involves an intent to harm someone and a protected class of victim. In this case, the court found that the protected class of victim could be either a vulnerable civilian population or a lawful government. The court's analysis on this point, however, seems thin. Typically, a protected class of victim would be something like a child, spouse, or elderly person. Does the government of a country really fit that definition? It is particularly incongruous here, since the opinion acknowledges the despicable actions of the Government of Vietnam in addressing the petitioner's Convention Against Torture claim. Also, defining an entire civilian population as a protected class of victim seems broad too. Doubtless, though, the classification of the offense as "terrorism" compelled the court decide that it necessarily involved moral turpitude. The opinion would have been sounder if it had dropped "protected class of victim" as a basis for the decision and instead focused on the intended harm required by the statute.
Luis Felipe Juarez Alvarado v. Holder
The Ninth Circuit upheld a finding of deportability for conviction of an offense relating to a substance prohibited by the federal Controlled Substances Act because circumstantial evidence established that a document in the record was the factual basis for the plea and that factual basis established the conviction involved methamphetamine. In the underlying criminal case, Juarez-Alvarado pleaded guilty to Arizona Revised Statute § 13-3407(A)(1), but not as originally charged in the indictment returned against him. He pleaded to count 1 as modified. The Ninth Circuit therefore held that the government could not establish he was deportable by relying on the original indictment. However, the government also presented a document from the court record (lacking a title or date) that purportedly was the factual basis incorporated into the plea. Juarez-Alvarado disputed that it was. The court considered the circumstantial evidence in the record (of page numbering, location of certification stamps, etc.) and found that the document indeed was the "attached description of the statutory elements and factual basis" referenced by the guilty plea. Since that document indicated the conviction was for possession of methamphetamine, the court found it established deportability.
U.S. v. Brigido Lopez-Chavez
The Ninth Circuit reversed a conviction for illegal reentry after removal because the defendant received ineffective assistance of counsel in the removal proceedings. The counsel had conceded removability for conviction of a drug trafficking aggravated felony where the immigrant had a Missouri conviction for possession of marijuana with intent to deliver. As in Moncrieffe, the conviction (Missouri Revised Statutes § 195.211) encompassed distribution of a small amount of marijuana for no remuneration, which would not be a felony under the federal Controlled Substance Act and thus not an aggravated felony as the state equivalent of a felony conviction under the Controlled Substance Act. Moncrieffe had not been decided at the time of the attorney's concession, but a circuit split did exist at the time and the Seventh Circuit (in which the removal proceedings occurred) had not ruled on the issue at the time.
Matter of Martin Chairez-Castrejon
The Board of Immigration Appeals applied the Supreme Court's decisions in Descamps and Moncrieffe to find that the respondent's felony conviction under section 76-10-508.1 of the Utah Code for discharge of a firearm was not an aggravated felony crime of violence, but was a deportable firearms offense.
Section 76-10-508.1(1) has three subsections and it was not clear which the respondent was convicted of. The first, subsection (a), penalizes one who "discharges a firearm in the direction of any person or persons, knowing or having reason to believe that any person may be endangered by the discharge of the firearm." This does not require any particular mental state by the person who discharges the firearm, which means under the Utah Code that it may be done with intent, knowledge, or recklessness.
The Supreme Court held in Leocal that the mental state of recklessness does not satisfy the federal definition of a crime of violence, so the Board held that a violation of section 76-10-508.1(1)(a) is not necessarily an aggravated felony crime of violence. Further, the Board held it could not find the respondent was convicted of an aggravated felony under the modified categorical approach. It determined it could not use the modified categorical approach because the mental states for subsection (a) (intentionally, knowingly, or recklessly) are not divisible because they are not elements of the offense that a jury must unanimously agree upon. In other words, a jury returning a guilty verdict could do so where some members of the jury believe the defendant acted intentionally, while others believe he acted recklessly. Since the offense does not necessarily constitute a crime of violence and it is not divisible, no conviction for section 76-10-508.1(1)(a) would be an aggravated felony crime of violence.
The Board nonetheless found that Chairez-Castrejon was convicted of a firearms offense because it rejected his argument on the antique firearm exception. The federal definition of a firearm excludes certain antique firearms, while the respondent argued that Utah law did not. The Board noted that there was no specific exception for antique firearms under Utah law, but also found that the respondent had not shown Utah actually prosecutes offenses involving antique firearms. In Moncrieffe, the Supreme Court held that an alien who invokes this “antique firearm” argument in order to defeat an aggravated felony charge “would have to demonstrate
that the State actually prosecutes the relevant offense in cases involving antique firearms.” The respondent apparently could not show that here (California, on the other hand, does prosecute cases involving antique firearms). The Board therefore found Chairez-Castrejon deportable, although it remanded for consideration of his cancellation of removal claim because it found his conviction was not an aggravated felony.