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Author: Scott Mossman

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The Board of Immigration Appeals held here that a respondent's mental health at the time of committing a crime is not a factor in determining whether a conviction is for a particularly serious crime that bars withholding of removal.

In this case, the respondent was convicted of California Penal Code section 245(a)(1) (2004 version), assault with a deadly weapon, and received a two-year sentence to prison.  He has a history of chronic paranoid schizophrenia, which resulted in a finding that he was mentally incompetent during the removal proceedings.  The fact of the conviction, however, indicates he was not found not guilty by reason of insanity during the criminal proceedings.

The Board held that the respondent's mental health circumstances at the time of an offense may not be considered in determining whether the crime is a particularly serious crime that bars withholding of removal.   It reached this conclusion despite acknowledging the well-established rule that it "evaluate[s] the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts."  The Board's decision makes clear that the "circumstances and underlying facts" concern only those that indicate whether the respondent is a "danger to the community."  In other words, a crime by a mentally ill person can indicate dangerousness to the community just the same as a crime by a person who is not mentally ill.

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In Matter of Iris Introcaso, the Board held that a petitioner has the burden of proving that he is not ineligible to petition for a relative due to a conviction for a specified offense against a minor under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act").  It further held "the language and structure of the Adam Walsh Act invite a circumstance-specific inquiry into both the age of the victim and the conduct underlying the offense." In other words, the inquiry purportedly is not limited to the categorical approach.

The Board justified examining facts outside of the elements of conviction to determine the victim's age because the list of disqualifying convictions includes offenses that are not specific to minors (kidnapping, false imprisonment, solicitation to engage in sexual conduct, etc.).  It is hard to argue with that, so I won't.

The rationale for examining non-elements to determine the nature of the conduct underlying the offense, however, is far more dubious.  The Board notes that the list of specified offenses against a minor include "criminal sexual conduct involving a minor..." and "any conduct that by its nature is a sex offense against a minor."  The Board suggests that this focus on the conduct permits an examination of the alleged facts of the offense, rather than the offense of conviction.  In doing so, it disregards the requirement that the petitioner be "convicted of" a specified offense.  How can a petitioner be convicted of conduct that is not an element of the conviction?  This is precisely the issue addressed in the Supreme Court's decision in Descamps, but the Board did not even attempt to distinguish Descamps and instead focuses myopically on the Supreme Court's earlier decision in Nijhawan.

Arguably, though, Board's assertion that an adjudicator can engage in a circumstance-specific inquiry into the conduct underlying the offense is dicta.  It is dicta because the Board did not examine facts or circumstances of the offense in this case to determine whether it was a disqualifying offense.  It did not need to.  The offense was endangering the welfare of children under section 2C:24-4(a) of the New Jersey Statutes Annotated.  The Board held that offense is divisible and that the portion the petitioner was convicted of--engages in sexual conduct which would impair or debauch the morals of the child--is a specified offense under the Adam Walsh Act.  It reached that conclusion based on the statutory language and petitioner's inability to provide an example that would be outside the scope of the Adam Walsh Act.  In other words, it applied the categorical approach--not the circumstance-specific approach.

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In  Matter of Tatiana Aceijas-Quiroz, USCIS denied the U.S. citizen petitioner's immigrant petition for his wife.  This the first of three Board of Immigration Appeals decisions issued on May 20, 2014, that concern the immigration consequences of convictions for U.S. citizens.  Under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), certain convictions will disqualify a citizen from petitioning for an immigrant family member.

USCIS found, and the petitioner did not dispute, that his prior convictions for sexual abuse and for contributing to the sexual delinquency of a minor were "specified offenses against a minor" under the Adam Walsh Act.  He therefore was ineligible to petition for his wife unless he could demonstrate that despite those convictions he posed "no risk" to her.  USCIS denied the petition because it was not satisfied that he posed no risk to her.  In doing so, it required him to show "beyond a reasonable doubt" that he posed no risk.  This standard, which typically does not apply in civil immigration proceedings, does not appear in the statute or regulations.  It was imposed by USCIS memo.

The petitioner appealed to the Board, arguing that the heightened beyond a reasonable doubt standard of proof should not apply.  The Board, however, determined that it did not have jurisdiction to review the question because it found the Adam Walsh Act gave USCIS sole authority to determine whether a petitioner posed no risk to a beneficiary and that includes sole authority to determine the standard of proof for that issue.

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In yet another positive development in the State of California, the maximum potential sentence to imprisonment for misdemeanors is now 364 days. It accomplishes this by adding section 18.5 to the Penal Code, which provides:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.

Governor Brown signed the bill, SB 1310, on July 21, 2014. Since the text of the bill does not specify otherwise, criminal defense attorneys should assume that the change does not go into effect until January 1, 2015.  Until then, attorneys should pursue other strategies to protect their clients.

There are three major benefits for non-citizens convicted of a misdemeanor that carries a 364 day maximum potential sentence.  First, the conviction could not meet the federal definition of an aggravated felony based on a 365 day sentence to imprisonment (be careful, though, because some aggravated felonies do not require any sentence to imprisonment).

Second, a California misdemeanor conviction would no longer make an immigrant deportable for conviction of a single crime involving moral turpitude (CIMT) committed within 5 years of admission, since that ground of deportability only applies if the conviction carries a maximum potential sentence to imprisonment of one year or more.

Third, a single misdemeanor CIMT conviction that results in a sentence to imprisonment of 6 months or less would no longer automatically disqualify a non-permanent resident from cancellation of removal.  Cancellation of removal is discretionary relief from removal based on continuous physical presence of 10 or more years and exceptional and extremely unusual hardship to a citizen or permanent resident family member.

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In this illegal reentry decision, the Ninth Circuit held that firearms convictions under state statues that encompass both "antique" and non-antique firearms do not satisfy the federal ground of deportability for conviction of a firearms offense. The defendant here had been removed for conviction under such a statute, so the court found the removal order invalid and reversed the conviction.

The federal definition referenced by the firearms ground of deportability explicitly excludes antique firearms, while former section 12021(c)(1) of the California Penal Code, does not. In other words, there is no complete match between the two definitions and a conviction for the California offense should not categorically trigger deportability. The Ninth Circuit previously had resisted this logic, primarily because the antique firearms exception is an affirmative defense in a federal prosecution. In Moncrieffe, the Supreme Court found, albeit in dicta, that whether it is an affirmative defense or not does not matter. What matters is the congruence between the definitions. An offense meets a federal definition only if all of the conduct penalized by it meets the definition, including the least culpable conduct that there is a "realistic probability" of the state prosecuting. Aguilar-Rios cited cases showing California regularly prosecuted offenses involving antique firearms under PC 12021(c)(1), so the least culpable conduct for a conviction clearly did not meet the federal firearms definition.

Moreover, as in the marijuana statute at issue in Moncrieffe, former California PC 12021(c)(1) was not divisible into alternative, separately defined offenses involving antique or not-antique firearms. Thus, the court held it could not examine the record of conviction to try to determine whether Aguilera-Rios's offense actually involved an antique firearm.

Although this decision concerned a firearms statute that existed before the Deadly Weapons Recodification Act of 2010 went into effect on January 1, 2012, it should apply equally to offenses under the reorganized statute that do not distinguish between antique and non-antique firearms. This would include current sections 25400(a), 27500, 29800, and 33215 of the Penal code, according to the ILRC.

Finally, I should point out that the panel's decision confusingly states Aguilera-Rios's "conviction is not a categorical match for the federal aggravated felony" definition. This apparently is an error, since the recited facts indicate Aguilera-Rios was only found deportable for conviction of a firearms offense, 8 U.S.C. 1227(a)(2)(C), not a firearms aggravated felony. This error is not significant, though, since both reference the same federal definition of a firearm.

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The California Department of Justice, Division of Law Enforcement, has issued a bulletin on the responsibilities of local jurisdictions under the TRUST Act and potential liability for detaining a person pursuant to an ICE request. Read my previous blog post for more on the TRUST Act. As for liability, the bulletin notes a district court in Oregon found detainers are voluntary requests, and thus a jail may be held financially liable if it turns out there was no probable cause for the detention. This is a worrisome prospect because ICE often issues detainer requests on scant evidence and in the past has even issued detainers against U.S. citizens.

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In this sentencing case, a panel of the Ninth Circuit has once again concocted a way to squirm out of the categorical analysis.  The Supreme Court's harsh rebuke just last term in Descamps apparently has had little effect.  After reciting the admittedly terrible facts of the case (a parolee pimping out a 14 year-old runaway and using her to produce porn after prior convictions for sex with a minor and conspiracy to pander a minor), Judge Ikuta's opinion announces it is applying the categorical analysis and then utterly subverts it.

The portion of the opinion reviewed here concerns the use of the categorical analysis to determine whether a sentencing enhancement for a prior conviction for sexual abuse of a minor applies.   The opinion first notes the generic federal definition of sexual abuse of a minor requires conviction of either (a) a sexual offense with a minor that is inherently abusive or (b) an offense that involves knowingly engaging in a sexual act with a minor between the ages of 12 and 16 and a 4 year age difference.  The opinion then recognizes that Ninth Circuit precedent holds the defendant's prior conviction for California Penal Code section 261.5(d) (unlawful sex with a minor younger than 16 by an adult 21 or older) does not categorically meet this definition (and that by extension his prior conviction for PC 288a(b)(2) does not either).  PC 261.5(d) is not inherently abusive because it could involve consensual sex with a minor just one day shy of 16.  Nor does it meet the alternative test because the conviction does not require that the defendant know (or that he reasonably should know) the minor is under the age of 16.

No match should mean that the mandatory minimum sentences applied by the district court judge (25 years and 10 years) do not apply, but the panel snatches victory from the jaws of defeat with the magic words "relating to."   The panel finds that the sentencing enhancement requires only conviction of an offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact with a minor or ward."  It explains this "mandates the enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense.”   Whatever that means, the panel holds it does not require the conviction to have the same elements as the generic definition.

The opinion cites a Ninth Circuit decision, United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007), as support for its holding.  The citation, however, is suspect because it pre-dates the Supreme Court's last four decisions on the categorical analysis (Nijhawan, Johnson, Moncrieffe, and Descamps), which all have emphasized the primacy of elements when evaluating whether a conviction meets a federal definition.  Moreover, actually reading the Sinerius decision reveals that it does not offer quite as much support as the Sullivan panel asserts.  Sinerius does expound on "relating to," but its actual holding does not purport to dispense with a categorical analysis of the elements of the offense. Instead, It simply found that the generic definition of sexual abuse meant more than federal statutory rape, that it also covered sexual offenses with children younger than 14.  And then it compared the elements of the statute of conviction to that generic definition.  Sinerius does not assert that a conviction can satisfy a federal generic definition even if it is missing an element of the generic definition.

The flawed reasoning of Sullivan unfortunately has potential consequences beyond its application here.  For example, a conviction for an offense "relating to" a federal controlled substance makes a noncitizen deportable or inadmissible.  Thus, the panel's reasoning could be used to argue a conviction for California Health and Safety Code section 11377(a) "relates to" an offense involving a federally controlled substance even if the conviction actually did not (because some of the substances covered by it are not prohibited by the federal Controlled Substances Act).  This certainly would be news to another Ninth Circuit panel that recently held 11377(a) does not categorically make a noncitizen inadmissible.  See Quijada Coronado.  Ditto for another panel on a Hawaii controlled substances statute.  See Ragasa.

Let's hope the other judges on the Ninth Circuit see this chicanery for what it is.

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In this illegal reentry case, a Ninth Circuit panel held that battery on a peace officer that causes injury in violation of California Penal Code (CPC) section 242/243(c)(2) is categorically a crime of violence under the sentencing equivalent of the definition at 18 U.S.C. 16(a) (effectively tripling the prison exposure).  It found CPC 243(c)(2) requires as an element the willful use of force against the person of another sufficient to cause injury.  It notes a California Court of Appeal decision that equates willful with intentional and thus concludes that a battery willfully inflicted that causes injury is a crime of violence.

Seems reasonable at first glance, except the court glosses over a lot in a way one wouldn't expect for a published decision.  First, the willfulness that the court makes a big deal about is located in the definitional statute at 242.  That willfulness is just the general intent to effect a simple battery.  A simple battery can include any form of unlawful touching--even a push that causes no injury.  And the Ninth Circuit has previously held that a simple battery with that type of intent is not a crime of violence.  Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (simple battery against a domestic victim is not a crime of violence for purposes of the domestic violence ground of deportability).

It is the resulting injury that triggers the enhanced sentence at 243(c)(2), and the injury need not be intentional.  Thus, pushing a peace officer would be punishable under CPC 243(b) (misdemeanor) if it causes no injury, while the same push with the same level of force would be punishable under CPC 243(c)(2) (felony or misdemeanor) if it causes the cop to trip over something and he needs an ice pack (we are not talking great bodily injury, or GBI, here).  Either way, it does not matter what the defendant intended because there is no element of specific intent to cause injury, just the general intent to complete the contact.

This is why the court's reliance on United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) is way off base.  Laurico-Yeno concerned CPC 273.5, which penalizes a person who "willfully inflicts upon [a protected domestic victim] corporal injury resulting in a traumatic condition." There, unlike CPC 242/243(c)(2), the injury is willfully inflicted.

It gets worse, though.  The California Court of Appeals opinion that the panel cites for support actually undermines its position.  The discussion of willfulness in People v. Lewis, 15 Cal. Rptr. 3d 891, 901 (CA 4 2004) first notes, "Usually the word "willfully" defines a general intent crime unless the statutory language requires an intent to do some further act or achieve some future consequence."  Therefore, "When the structure of a section requires a willful act followed by some particular result, then it is reasonable to read the willful, i.e., intentional, element as referring only to the initial act and not to the ultimate result. In such sections the word "willfully" does not require the defendant intend the ultimate result, only that he or she intended the initial act." That is precisely why a simple battery that results in injury (that need not be intended) does not comport with the Supreme Court's holding in Leocal that a crime of violence must actually be violent.

Let's hope there is a request for en banc rehearing to reconcile this case with Ortega-Mendez and with the spirit of the Supreme Court's recent decisions.

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In a matter of first impression in this circuit, the Ninth Circuit found that the BIA could consider a sentence enhancement in determining whether a non-aggravated felony conviction was nonetheless a particularly serious crime that would bar withholding of removal.  Konou had argued it could not because Ninth Circuit precedent holds a sentencing enhancement cannot be considered when determining if a conviction is an aggravated felony.  The court pointed out that a conviction does not need to meet the aggravated felony definition in order to be deemed particularly serious.  The particularly serious crime determination is a discretionary case-by-case determination.

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