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Author: Scott Mossman

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The Ninth Circuit held that aggravated assault in violation of Arizona Revised Statute 13-1203 is not categorically a crime of violence pursuant to 18 U.S.C. 16(a) because it encompasses reckless conduct in addition to knowing or intentional conduct.  A mens rea of mere recklessness is not enough--the Ninth Circuit has held that at least extreme recklessness is required.  Applying the modified categorical analysis, however, the court found  the defendant pleaded guilty to charges that alleged only intentionally placing the victim in reasonable apprehension of imminent physical injury.  It thus was a crime of violence.

Since the defendant received a 12 month sentence for this crime of violence conviction, the court held it was an aggravated felony. This aggravated felony conviction precluded voluntary departure in the removal proceedings that followed, so the defendant was not prejudiced when the immigration judge did not advise him about voluntary departure.  The court therefore found he could not collaterally attack the removal order and upheld his conviction for a subsequent attempted illegal reentry with a sentence of 70 months.

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The Alameda County Sheriff's Office is no longer honoring ICE detainer requests, period. The development likely has a lot to do with the court decisions that have held a local jail could be legally and financially responsible for an erroneous hold, not to mention the fact ICE does not even compensate the county for the expense of holding the person in custody for an additional day or two.

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The San Mateo County Sheriff's Office has revised its ICE hold policy to not honor ICE detainer requests except "in cases of individuals who pose significant public safety concerns, which would require case by case approval from the Sheriff's Executive staff." These should be a "rare exception."

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The Ninth Circuit held that the petitioner's conviction for “Attempted Promoting a Dangerous Drug in the First Degree,” in violation of Haw. Rev. Stat. §§ 705-500(1)(b), 712-1241(1)(b)(ii), was not categorically a deportable controlled substance offense. It reached this conclusion because the relevant Hawaii controlled substance schedules include two substances, benzylfentanyl and thenylfentanyl, that are not currently listed in the federal Controlled Substances Act.

Although not a categorical controlled substance offense, the court applied the modified categorical analysis because it found the offense divisible pursuant to Coronado v. Holder. The record of conviction did not identify the substance, though, so the government could not meet its burden of proof.

The court thus found Ragasa was not deportable as charged. That was a good thing, since it rejected his claim to citizenship based on adoption by two naturalized citizens in 1980.

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In this criminal prosecution for illegal entry after removal, the Ninth Circuit held that an Arizona conviction for attempted sexual contact with a minor under the age of 15, in violation of ARS 13-1405B, does not meet the federal generic definition of sexual abuse of a minor. It therefore remanded for re-sentencing. It also held, though, that the defendant could not establish prejudice resulted from a violation of his due process rights in the stipulated removal proceedings that preceded his removal because at the time the offense was considered an aggravated felony for sexual abuse of a minor in the Ninth Circuit. It just goes to show how quickly the law can change.

ARS 13-1405B has three elements: (1) a mens rea of “intentionally or knowingly”; (2) an act of “engaging in sexual intercourse or oral sexual contact”; and (3) a victim “who is under fifteen years of age.” The court found this did not meet either of the alternative federal generic definitions of sexual abuse of a minor. First, it is not sexual abuse of a minor as statutory rape because Arizona law, unlike federal law, does not require an age difference of 4 years. Second, ARS 13-1405B does not meet the alternative generic definition of sexual abuse of a minor, which requires that: (1) “the conduct proscribed . . . is sexual;” (2) “the statute protects a minor;” and (3) “the statute requires abuse.” Ninth Circuit precedent presumes that sexual contact with a minor under the age of 14 is inherently abusive, but ARS 13-1405B covers both 14 year-olds and those younger than 14. The panel declined to extend that inherent abusiveness presumption to 14 year-olds. Nor did it find any other element of abuse in this offense, since it involves consensual sex.

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The Board held that the Nevada offense of attempted violation of NRS 205.273 (possession of a stolen vehicle) was not a categorical aggravated felony theft offense under the law of the Ninth Circuit. NRS 205.273 may be satisfied by possessing, receiving, or transferring a stolen vehicle with either knowledge that it was stolen or reason to believe that it was stolen. However, the generic definition of an aggravated felony theft offense, according to the Ninth Circuit's en banc decision in U.S. v. Corona-Sanchez, requires "the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The Board appropriately recognized that a conviction does not require that intent if it is based on what a reasonable person should have known, rather than what the defendant actually knew. Therefore, a conviction under NRS 205.273 does not categorically meet the theft definition.

The Board declined to decide whether NRS 205.273 is divisible into two separately enumerated crimes, possession with knowledge and possession with reason to believe. Since both alternatives are listed in the statute, it would seem to be divisible and thus susceptible to the modified categorical approach. I do not know much about Nevada law, though, so perhaps there is an argument against divisibility. It did not matter in this case because the record did not indicate whether the conviction was for knowledge or reason to believe.

The Board also explicitly reserved the question of whether receipt of stolen property with reason to believe it was stolen would meet the generic definition of a theft offense absent controlling circuit precedent. It noted that many jurisdictions, although not most, included receipt with reason to believe in theft statutes at the time Congress enacted the theft aggravated felony definition.

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In this criminal appeal, the Ninth Circuit upheld a sentencing enhancement for prior convictions for crimes of violence despite a variance in the availability of an affirmative defense. The district court imposed the enhancement in this illegal reentry case because the defendant had previous California convictions for attempted murder and kidnapping. He had argued California attempt was not a categorical match to the generic definition of a crime of violence because California does not provide for the affirmative defense of voluntary abandonment, while the majority of jurisdictions and the Model Penal Code do.

The court held that Ninth Circuit precedent, e.g., United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010), compelled it to reject Albino-Loe's argument. It found that the Supreme Court's decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) did not undermine that precedent. The court distinguished Moncrieffe because it did not involve an affirmative defense, but rather a sentencing exception that defined whether the offense was a felony or misdemeanor.

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The Ninth Circuit, sitting en banc, overruled its erroneous precedent on the maximum potential sentence to imprisonment for California misdemeanors and its precedent that California Penal Code (CPC) section 245 (assault with a deadly weapon) is a categorical crime involving moral turpitude. It also found unpersuasive a Board decision from 1947 that held a CPC 245 conviction involved moral turpitude, since that decision did not apply the categorical analysis. The court remanded to the Board to determine in the first instance whether CPC 245 is a crime involving moral turpitude (CIMT). It further urged the Board to issue a publish decision promptly.

I, for one, am not optimistic the Board will quickly provide a published decision. A prompt answer certainly is important, since CPC 245 is a very common conviction and immigrants should be able to know whether it is a CIMT before deciding to give up their constitutional rights by entering a guilty plea to it. As the Ninth Circuit recognized, though, the question is a difficult one. On one hand, the element of a deadly weapon (a firearm in subsection (a)(2)) makes the offense more serious. However, assault does not require actual injury or even physical contact. Further, the court noted assault is a general intent crime that does not require an intent to injure or a conscious disregard of an unreasonable risk of injury (or, more precisely, it does not require an intent to create an apprehension of a completed battery or a conscious disregard of an unreasonable risk of creating an apprehension of a completed battery). So, I think the Board will struggle with this, which would be unfortunate.

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The Board held that a permanent resident who adjusted to that status from asylee status pursuant to section 209(b) of the INA cannot readjust on that basis as relief from removal. It noted the explicit prohibition on readjustment for residents who adjusted from refugee status and reasoned there was no reason to treat residents who adjusted from asylee status differently, despite the silence of the statute regarding asylees. On the contrary, I would have thought Congress' omission of an explicit prohibition on readjustment for asylees would carry some significance--particularly since the procedures for refugees and asylees were created by the same legislation.

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