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Author: Scott Mossman

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The Ninth Circuit held that a guilty plea to possessing a controlled substance with intent to distribute may be considered in determining whether there is reason to believe the noncitizen is a drug trafficker--even if the conviction is later overturned, at least if the conviction is overturned for a reason unrelated to the voluntariness of the plea.

Here, the noncitizen's conviction was overturned because the police did not have reasonable suspicion to conduct the traffic stop that led to his arrest. Nonetheless, the court held the plea--along with circumstantial evidence in the case--could be considered to establish the noncitizen's inadmissibility for reason to believe he had engaged in drug trafficking.

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Following the Supreme Court's decision in Descamps, the Ninth Circuit adhered to its original decision in this case (despite the frolic occasioned by Aguila-Montes de Oca). It held that a court may only examine the elements of a conviction to determine whether the conviction satisfies the requirements of a federal definition. Further, a reviewing court may look to the contents of a record of conviction only when necessary to identify which of multiple alternative elements the defendant was convicted of (and then only if at least one alternative would satisfy the federal definition).

Here, the court found the immigrant's conviction under the Uniform Code of Military Justice for using a government computer to access pornography did not include as an element the depiction of a minor engaging in sexually explicit conduct (because the order he violated prohibited accessing any type of pornography), so the conviction did not satisfy the aggravated felony definition of conviction of a child pornography offense. Nor could the government resort to the record of conviction because the statute of conviction was not divisible into multiple alternative elements--the element of the depiction of a minor engaging in sexually explicit conduct was entirely missing from the offense.

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The Ninth Circuit held that the aggravated felony bar to a 212(h) waiver of inadmissibility does not apply to a permanent resident who was admitted to the U.S. from abroad as something other than a permanent resident and then later adjusted status to permanent residence. It, like all of the other circuit courts to have reviewed the question, found this result compelled by the plain language of the statute. Thus, the petitioner here was not barred from seeking a 212(h) waiver of inadmissibility for her crime involving moral turpitude because she entered on a B-2 visitor visa and then adjusted to permanent resident status.

A person who was admitted on an immigrant visa, however, would not be eligible for 212(h) to waive a later criminal ground of inadmissibility. The court also recognized that an adjustment of status would count for the purpose of the 212(h) aggravated felony ground of ineligibility if the person was not inspected and admitted and admitted from abroad--i.e., where the person entered without inspection. It found the language of the statute did not preclude the interpretation of the Board of Immigration Appeals in this circumstance.

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Assembly Bill 4, the Trust Act, took effect in California on January 1, 2014. The law represents a substantial change in how California law enforcement agencies must respond to a request by Immigration and Customs Enforcement (ICE) to hold a person suspected of being removable for an immigration violation.

In the past few years, ICE has initiated record numbers of removal cases against noncitizens--to the point where the immigration courts cannot keep up. It has done this by using the new Secure Communities program (S-Comm) to flag persons detained even briefly in a city or county jail and to request that they be held so that ICE can initiate an immigration enforcement action. With few exceptions, local law enforcement has complied with these so-called immigration holds--even when the person detained is not actually charged with a criminal offense or the criminal offense is relatively minor. That should change in California with the enactment of the Trust Act.

Under the Trust Act, law enforcement officials cannot comply with a request for an immigration hold unless the subject meets certain criteria. Further, even if a subject meets those criteria, the law enforcement official has discretion as to whether to comply with the hold.

A law enforcement official would be permitted to comply with an immigration hold if the subject meets any of the criteria found at section 7282.5 of the Government Code, which include:

    1. The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code.

 

    1. The individual has been convicted of any felony punishable by imprisonment in the state prison (not a PC 1170(h) offense).

 

    1. The individual has been convicted of an offense specified under the Trust Act. This includes certain felonies and certain misdemeanor wobblers (i.e., offenses punishable as either a misdemeanor or felony). For misdemeanor wobblers, the conviction must have occurred within the last 5 years. The list of specified offenses includes most crimes involving violence, sexual abuse, child abuse, burglary, theft, and weapons, as well as gang-related offenses, registerable sex offenses, and offenses involving personal use of a firearm, death, or great bodily injury, and certain others. Notably, DUIs and controlled substance offenses must be felonies to permit a hold.

 

    1. The individual is a current registrant on the California Sex and Arson Registry.

 

    1. A magistrate has found probable cause pursuant to PC 872 for a serious or violent felony, a felony punishable by imprisonment in the state prison, or a felony that is wobbler on the above list (excluding domestic violence).

 

    1. The individual has a federal conviction that meets the definition of an aggravated felony in subparagraphs (A) through (P) of 8 U.S.C. 1101(a)(43), which for unknown reasons omits subparagraphs (Q) through (U) (failure to appear for a felony, bribery, counterfeiting, forgery, obstruction of justice, perjury, and attempt and conspiracy convictions).

 

  1. The individual is the subject of an outstanding federal felony arrest warrant (most current immigration holds are for alleged civil immigration violations, not warrants for felony criminal charges).

Although this list is much longer than the previously-introduced version of the Trust Act, the important thing to note is that it requires an actual conviction or, for certain felonies, a finding of probable cause. This remedies two of the biggest problems that previously existed: (1) undocumented persons being ineligible for bail while they contest the charges, and (2) transfer to ICE even if the prosecutor declines to file charges or the noncitizen prevails in the criminal proceedings.

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The Board held that a conviction for unlawful possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) was categorically an aggravated felony. The Immigration and Nationality Act makes a conviction under “section 922(g)(1)... of title 18, United States Code (relating to firearms offenses)” an aggravated felony. The respondent had argued the parenthetical "relating to firearms offenses" limited the definition to firearms and thus excluded ammunition offenses. The Board rejected that argument. It noted that parentheticals have often been found to be merely descriptive and that the language of this particular parenthetical does not indicate Congress intended it to have a limiting effect.

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The Ninth Circuit held that a conviction for California Penal Code section 288(c)(1) (lewd or lascivious act on child 14 or 15 years of age by a person at least 10 years older) is categorically a crime of violence under 18 USC 16(b), and thus is an aggravated felony with a sentence to one year or more.

Section 16(b) requires that the offense be a felony which “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.” Citing United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2012) and Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. 2012), the court held that there only need be a substantial risk of the use of force in an "ordinary" case prosecuted under the statute. An offense may be a categorical aggravated felony even where there is a possibility that the statute may be violated "at the margin" in a way that does not involve such a risk.

The court found that "in the ordinary case" of 288(c)(1) there is a substantial risk that the perpetrator will use physical force against the victim, since the victim may resist and the adult may use physical force to ensure compliance. The petitioner had argued the statute covered offenses where the victim consented to the conduct, but the court held that such a possibility at the margin was not enough to prevent it from being considered a crime of violence. The court also noted that PC 288(c)(1) requires an age difference of at least 10 years, which in its view made the use of physical force more likely than in consensual statutory rape (where the perpetrator need only be 18 years of age and the victim could be just one day shy of 18).

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The Ninth Circuit granted rehearing en banc and vacated the published decision in Ceron v. Holder, which had held that assault with a deadly weapon in violation of California Penal Code section 245(a)(1) is categorically a crime involving moral turpitude (CIMT). The panel had so held despite an en banc decision that had stated assault with a deadly weapon was not a CIMT. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). The panel had disregarded that statement as wrong and not controlling. The court's decision to take up the case en banc should give it the opportunity to provide much-needed guidance on the immigration consequences of this common conviction.

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The Ninth Circuit held that a conviction under California Penal Code section 417.3 with a sentence to one year or more is categorically an aggravated felony crime of violence. PC 417.3 penalizes brandishing a firearm in the presence of the occupant of a motor vehicle. The Board of Immigration Appeals had held that it satisfied the definition of crime of violence at 18 USC 16(a) and (b), but the Ninth relied only on subsection (a). It held that PC 417.3 requires brandishing a firearm in a threatening way that would reasonably cause the victim to fear bodily harm. The Ninth held this offense necessarily involves a "threatened" use of force under 18 USC 16(a).

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The Board of Immigration Appeals held that a conviction for 18 U.S.C. § 1001(a)(2) (2002), making a materially false, fictitious, or fraudulent statement or representation to a government official (here to obtain a U.S. passport) is a crime involving moral turpitude (CIMT). It distinguished earlier decisions that found this was not necessarily the case because the earlier version of the statute did not always require materiality. The current version does. The Board therefore upheld the finding that the noncitizen was ineligible for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) due to having a felony CIMT.

The Board also reaffirmed that entry on a false claim to U.S. citizenship is not an inspection and admission for purposes of the INA and denied voluntary departure in the exercise of discretion.

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This case began with a permanent resident's conviction for violating California Vehicle Code section 10851(a) and went all the way up to the Supreme Court. The Supreme Court vacated the Ninth Circuit's previous decision that aiding and abetting does not come within the generic definition of theft for aggravated felony purposes. It held it does. On remand, the Ninth decided the two remaining issues in the case.

First, the Ninth held the modified categorical approach permits use of facts alleged in a charging document if the government also submits an abstract of judgment or minute order that specifies the noncitizen pled to the count that contains those facts. (To be more precise, the court should have held that "elements" alleged in the charging document may be used.) Thus, it rejected the noncitizen's argument that the reviewable documents did not specify whether he was convicted of taking or driving or the non-theft offense of accessory after the fact, which VC 10851(a) also penalizes.

Second, the court rejected the noncitizen's argument that the aggravated felony theft definition requires intent to permanently deprive. Intent to temporarily deprive also satisfies the definition under Board and Ninth Circuit precedent.

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