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Author: Scott Mossman

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This Ninth Circuit criminal sentencing case is significant for its holding that divisibility must be explicit in the statute, not implied. The defendant had appealed his federal conviction under 18 U.S.C. § 2250 for traveling in interstate commerce and failing to register with the federal authorities as a sex offender. He was subject to registration because he had a previous Oregon conviction for ORS § 163.425. One of his arguments on appeal was that he should not have received an enhanced sentence as a Tier III offender because ORS § 163.425 is broader than the Tier III generic offense and it is not divisible. The court agreed.

Tier III defines "sexual abuse" as a sexual act accomplished by means of certain types of threat or fear or with a victim who is mentally or physically incapable of consenting. It does not include non-consent due merely to the victim being under the age of consent. A conviction under ORS § 163.425, on the other hand, requires only a sexual act with a person who does not consent. The statute does not specify the types of non-consent that would qualify, but, according to the Oregon Supreme Court, it includes at least actual non-consent and legal incapacity to consent, such as being under the age of 18, mental incapacitation, etc.

The government conceded that ORS § 163.425 is overbroad, but argued it is divisible pursuant to the Supreme Court's decision in Descamps. It argued the court therefore could look to the conviction documents under the modified categorical approach to find a match to the Tier III definition. It asserted § 163.425 is divisible because Oregon also has a definitional statute at § 163.315, which lists persons who are legally incapable of consenting to sex, including minors, mental defectives, mental incapacitated persons, and physically helpless persons. The Oregon conviction documents included the defendant's guilty plea statement that he had sex with a girl who was legally incapable of consenting because she was intoxicated and 15 years old. Non-consent due to intoxication would meet the Tier III definition, so the government argued the enhanced sentence was proper.

The majority of the panel rejected the government's argument and found ORS § 163.425 is not divisible because it does not explicitly list the alternative types of non-consent. It held the definitional statute at § 163.315 did not make § 163.425 divisible because § 163.425 does not reference § 163.315 or even use the same terminology (§ 163.425 requires non-consent, while § 163.315 defines legal incapacity to consent). In other words, § 163.425 defines non-consent broadly to include all types of non-consent and § 163.315 defines only a sub-group of non-consent--legal incapacity. Since § 163.315 does not provide an exclusive list of alternative elements for § 163.425, it does not make § 163.425 divisible into those elements for purposes of the modified categorical approach.

Judge Callahan partially dissented, finding that ORS § 163.425 is divisible. She noted the Oregon Supreme Court had recognized § 163.425 covers two types of non-consent: actual non-consent and legal incapacity, as defined by § 163.315. She maintained that this (implicitly) made the offense divisible into the alternative elements of: actual non-consent, minority, mental incapacitation, helplessness, etc. Since the defendant's guilty plea thus admitted the "element" of intoxication under this logic, the conviction would satisfy the federal definition under the modified categorical approach.

The majority rejected Judge Callahan's approach because it would be a partial return to the means-based analysis of Aguila-Montes de Oca that the Supreme Court repudiated in Descamps. It held the element was "non-consent" and the "means" were actual non-consent, minority, mental incapacitation, and perhaps others, since § 163.425 did not explicitly define a limited universe of modes of commission. I.e., it is the explicit, limited universe that transforms a means into an element, and that was not present here.

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The Supreme Court held a conviction for simple battery against a domestic victim triggers the prohibition against firearms possession at 8 USC 922(g)(9), a federal crime. Immigration advocates had feared that a holding along these lines would be used to justify expanding the domestic violence ground of deportability to also include simple battery against a domestic victim--making deportable, for example, an immigrant convicted of the misdemeanor offense of pushing his wife.

Fortunately, however, the Court explicitly stated at footnote 4 that nothing in its decision should cast doubt on precedent that holds simple battery against a domestic victim does not implicate the deportability ground. The court recognized that the deportability ground incorporates the generally-applicable "crime of violence" definition at 18 USC 16, which the Court has repeatedly held applies only to the active use of violent force capable of causing injury.

The criminal statute in Castleman did not include that reference to 18 USC 16, so the Court applied a much more expansive definition of domestic violence, over Justice Scalia's objections. It cited arguments and statistics by advocacy groups and the Department of Justice to explain why a simple battery that would not be considered "violent" in the ordinary sense is "violent" when it occurs in the domestic context, since it often occurs as part of a pattern of intimidation and control.

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The Ninth Circuit assumed without deciding that a grant of temporary resident status pursuant to the legalization provision at INA 245A amounted to an "admission." It held, however, that a termination of the temporary resident status (in this case for convictions) returns an alien to the unlawful status held before the grant of temporary resident status. 8 C.F.R. § 245a.2(u)(4). In this case, Hernandez-Arias previously held the status of an alien present without admission or parole. The court held the termination thus returned him to an unadmitted status, which made him vulnerable to removal for being present without admission or parole.

The court rejected Hernandez-Arias' argument that this return to an unadmitted status would result in a "rescission," which the regulations say is not required for termination of status and which did not occur in his case. The court distinguished a rescission from a termination. Using divorce and annulment as a comparison, it held rescission would result in him never having had temporary resident status and deprive him of any benefits of having had that status. Termination simply ends the status and returns him to the status he had before.

As an alien not admitted or paroled (and apparently not eligible for 245(i) adjustment), the court held Hernandez-Arias was not eligible for a 212(h) waiver of inadmissibility for his criminal convictions. It held he therefore was not prejudiced by the failure of the immigration judge in the removal proceedings to advise him of potential eligibility for 212(h). It therefore upheld his conviction in this case for illegal reentry after removal.

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The Ninth Circuit issued an opinion finding that the controlled substance schedules referenced by California Health and Safety Code (CHSC) 11377 (as well as 11378 and 11379) are not a categorical match for the federal controlled substance schedules. Specifically, it found khat (Catha Edulis) appears on the California schedules, but that the federal courts have held it is not covered by the federal schedules. Likewise, chorionic gonadotropin (HGC) is listed on the California schedules, but is not listed on the federal ones. That means a conviction under CHSC 11377(a) does not categorically make a noncitizen inadmissible or deportable for a conviction relating to a federal controlled substance.

The respondent had further argued CHSC 11377(a) was not divisible pursuant to Descamps v. United States and thus could never trigger inadmissibility or deportability, regardless of the record of conviction. Unfortunately, the Ninth Circuit rejected that argument and held it could conduct a modified categorical analysis to see if the record of conviction establishes the conviction was for a federal controlled substance. The charge in this case alleged only one controlled substance, methamphetamine (obviously a federal controlled substance), and the clerk's docket reflected conviction on the charge, so the court held the government established inadmissibility under the modified categorical approach. It found a clerk's docket for a misdemeanor case was just as reliable as a minute order, which the court previously had held could be used under the modified categorical approach. Of course, clerk's dockets and minute orders often do contain errors, but presumably it found them reliable because a defendant may inspect and correct them if they are not accurate. I say presumably because the court did not explicitly say so here.

The court did remand the case to the Board, however, because it failed to address his pro se claims on appeal that his previous attorney was ineffective and that the immigration judge did not act as a neutral fact-finder, which might have impacted his application for cancellation of removal.

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The Board held that an adjustment of status by a respondent who entered the U.S. without inspection was an "admission" and the respondent therefore was deportable for conviction of an aggravated felony "after admission." It disagreed with and distinguished the precedent on 212(h) eligibility, where circuit courts have held an aggravated felony does not disqualify a permanent resident unless he or she was admitted to the U.S. as a permanent resident (not where he or she adjusted to permanent resident status). The Board found it would be absurd to interpret the statute to entirely exempt immigrants who adjusted status from the grounds of deportability, which only apply to persons in and admitted to the U.S.

The Board further found that a sentence enhancement specified in the Manual for Courts-Martial that must be pleaded and proved beyond a reasonable doubt is an "element" that may be examined under the categorical analysis for immigration purposes.

In this case, the Board held a sodomy sentence enhancement for sodomy committed "by force and without the consent of the other person" categorically satisfies the crime of violence aggravated felony definition (if the sentence is to one year or more). It found the conviction satisfied both subsection (a) and subsection (b) of 18 U.S.C. 16. It found it satisfied subsection (a) because it held the conviction had as an element the use, attempted use, or threatened use of physical force against the person or property of another. It also found the offense satisfied subsection (b) because sodomy by force, which requires physical force and lack of the victim’s consent for a conviction, by its nature involves a substantial risk that the perpetrator will resort to intentional physical force in the course of committing the crime.

Interestingly, in a portion of the decision not digested by the Board at the beginning of the case, the Board rejected without much analysis the respondent's argument that he did not receive a sentence to one year or more for any single one of his three sodomy convictions. Apparently, he received a sentence to 18 months on the three counts and it was not clear whether this was a single concurrent sentence (i.e., 18 months on each conviction with the period of imprisonment to run at the same time) or three consecutive sentences (say, three sentences to 6 months each). The Board characterized the sentence as a "general sentence" and cited a 66 year-old Board opinion to find it satisfied the crime of violence aggravated felony definition's requirement of a sentence to one year or more. Due to the paucity of the Board's analysis, though, it is hard to know whether the respondent's argument had any merit. This is unfortunate in a published decision.

Finally, the Board rejected respondent's claim to eligibility for a "stand alone" 212(h) waiver. It held 212(h) is not available unless the applicant is an arriving alien seeking to waive a charge of inadmissibility or an applicant to adjust (or readjust) status to permanent residence. See Matter of Rivas, 26 I&N Dec. 130,
132, 134 (BIA 2013).

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The Ninth Circuit held that felony false imprisonment in violation of California Penal Code section 236/237 is not categorically a crime involving moral turpitude. This conclusion was virtually a foregone conclusion given the Ninth Circuit previously had found the more serious offense of simple kidnapping in violation of California Penal Code section 207(a) did not categorically involve moral turpitude.

The court noted the California appellate courts had upheld felony false imprisonment convictions under a "menace" theory in circumstances that did not fit the federal definition of moral turpitude. See People v. Islas, 147 Cal. Rptr. 3d 872, 875–82 (Ct. App. 2012) (two gang members convicted of false imprisonment by menace after hiding from police for about 15 minutes in an apartment rented by a mother and her children; conviction upheld even though the defendants did not brandish a weapon, did not act in a hostile manner, did not touch the woman or her family, did not issue any verbal threats, and, in fact, expressly told her that “they were not going to harm her or her children”).

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The Board of Immigration Appeals finally has declared surrender on the issue of 212(c) relief after decades of litigation. With its decision in this case, it has adopted the position urged by the amicus curiae brief of the American Immigration Lawyers Association to return to its position in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990), before the Attorney General overruled it.

The Board held 212(c) is available to waive all grounds of deportability except those comparable to the grounds of excludability (inadmissibility) excluded from 212(c) by its text (relating to terrorists, saboteurs, and war criminals). 212(c) thus is available to waive even convictions that would not make an immigrant inadmissible for a crime involving moral turpitude or controlled substance offense. It found this was the only option offered by the parties and amici that would fulfill the Supreme Court's mandate in Judulang to avoid mechanical distinctions in 212(c) eligibility criteria that do not rationally relate to an immigrant's fitness to remain in the U.S.

The Board further held that proof of reliance on the possibility of 212(c) relief was not necessary to establish eligibility and that 212(c) was available to immigrants convicted after trial, not just pursuant to a plea. This was not necessary to resolve Abdelghany's case, but the Board nonetheless seems to have wanted to settle all of the 212(c) issues once and for all. Moreover, the conclusion was all but compelled by the Supreme Court's retroactivity holding on the continued vitality of the Fleuti exception in Vartelas.

Likewise, the Board held that 212(c) eligibility also does not hinge on whether the conviction actually made the immigrant deportable at the time of the conviction. Again, the focus is on whether a new law imposes a disability on a past action, not on whether there was reliance--as Vartelas teaches. The Board buttressed that conclusion by quoting the double bulwark language of United States v. Leon-Paz, 340 F.3d 1003, 1006−07 (9th Cir. 2003). The Ninth Circuit held Leon-Paz “had two bulwarks to protect himself against attacks on his residence in this country.” "The first was the fact that he had pled to a crime that was below the aggravated felony threshold, and the second was § 212(c) itself in case the definition of aggravated felony changed as it often had and has.”

Nonetheless, some limitations on 212(c) relief remain related to the statutory history. An immigrant is not eligible if: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

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Scott Mossman will present an MCLE on the California Trust Act, AB-4, on April 2, 2014, from 4:00 pm to 5:30 pm in Oakland.

The Trust Act went into effect on January 1, 2014, and prohibits California law enforcement from honoring ICE detainer requests except under certain circumstances. The seminar will review this new legislation and compare it with the more protective ordinances and policies in place in some Bay Area counties. Our focus will be on the strategic use of the Trust Act and local ordinances to prevent transfer of removable noncitizen clients from local jail custody to ICE custody. In some cases this is possible even if the client has to take a felony conviction.

The Law Office of Scott A. Mossman has applied to the State Bar of California for certification of 1.5 MCLE credits for this in-person seminar. The event is open only to criminal defense attorneys, public defenders, and immigration attorneys. There is a $30 fee for registration, but it is waived for attorneys who previously have consulted with Scott Mossman.

Call Susana Figueroa at (510) 835-1115 to RSVP no later than March 31.

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In this Sentencing Guidelines case, the Ninth Circuit reviewed case law from the Delaware Supreme Court to determine whether the court had narrowed that state's unusually broad statutory definition of criminal attempt. It did so despite the fact that the U.S. Supreme Court in Descamps reserved the question of whether review of case law to determine the reach of a statute is permitted under the categorical analysis.

The panel's review of the case law of the Delaware Supreme Court revealed that the definition of attempt in that state really is as broad as the statute implies. Delaware law criminalizes attempt where the defendant has committed an act that leaves no reasonable doubt as to the defendant’s intention to commit the crime he or she is charged with attempting to commit. In other words, a person could be convicted of attempt where he or she has taken a step merely in preparation toward committing a crime. This is in contrast to most states and the generic federal definition, which require both intent and a substantial step toward completion. And a "substantial step" occurs under the federal generic definition when a defendant’s "actions 'unequivocally demonstrat[e] that the
crime will take place unless interrupted by independent circumstances.'"

Since the case law merely confirmed the statutory text, the panel did not need to use the case law to decide that the defendant's attempt conviction here was not a categorical match to the federal definition. Nonetheless, Judge Wallace's concurrence opposed even this on judicial restraint grounds. He wrote that the underlying crime attempted in this case (statutory rape) was not a match to the Sentencing Guidelines definition for a forcible sex offense. As it is not a match, an attempt to commit that crime is not a match to the federal definition either. He would have denied the case on that ground.

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Reviewing Attorney General's decision in Matter of Silva-Trevino, the Fifth Circuit joined the Ninth Circuit and three other circuits to reject the new procedure announced in that case whereby an immigration adjudicator can go beyond the record of conviction to evaluate whether a noncitizen is inadmissible for a crime involving moral turpitude.

The Fifth Circuit found the statutory text of INA 212(a)(2)(A)(i) was unambiguous and thus foreclosed the Attorney General's interpretation. The text makes inadmissible an alien "convicted of" or who admits to a crime involving moral turpitude (CIMT). Here, Silva-Trevino had not admitted to a CIMT. Thus, the question was whether evidence outside the record of conviction could be used to establish that he was convicted of such a crime. The court said no, tracking the analysis of the Ninth Circuit's decision in Olivas-Motta v. Holder-.

The only questionable part of the Fifth Circuit's decision in Silva-Trevino and the Ninth Circuit's decision in Olivas-Motta is the reference to INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B). That section lists the documents can be used to prove the existence of a conviction, and both Silva-Trevino and Olivas-Motta cite it to suggest that documents not listed there cannot be used to prove a conviction involved moral turpitude. The reverse implication is that all of the documents in that list can be used to prove the offense involved turpitude. The list contains court records, jail records, state criminal histories, etc. The use of those documents to establish the existence of a conviction is not controversial--that is what the statute permits (and that is all that it permits). The unlimited use of those documents to prove the nature of the conviction, however, would create a problem. Some of those documents contain extraneous information that the defendant did not admit and the judge or jury did not find. And the Supreme Court twice last term emphasized that the categorical analysis concerns only those elements that a defendant necessarily was convicted of. The unconsidered citation to 8 U.S.C. 1229a(c)(3)(B) suggests otherwise.

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