In this criminal sentencing case, the Ninth Circuit found--as the government conceded--that burglary under section 205.060 of the Nevada Revised Statutes is not divisible per Descamps and thus is not subject to the modified categorical approach to determine if it is a crime of violence. Nor did the government argue the offense is a categorical crime of violence. Like California Penal Code section 459, NRS 205.060 requires only "entry." It does not specify breaking and entering and apparently it encompasses entering stores open to the public.
Author: Scott Mossman
Matter of Ivan Enedelio Flores-Aguirre
The Board held that the offense of traveling in interstate commerce with the intent to distribute the proceeds of a drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) was not a drug trafficking aggravated felony under 101(a)(43)(B) of the Immigration and Nationality Act (INA).
The Board held that the offense did not meet either test for that definition. First, it is not a drug trafficking crime as defined by 18 U.S.C. § 924(c) because that subsection is limited to conduct punishable as a felony under “the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46,” which does not include distribution of proceeds under 18 U.S.C. § 1952(a)(1)(A). Second, it is not a generic offense of "illicit trafficking" in a substance listed under the federal Controlled Substances Act because the offense does not involve trading or dealing. See Matter of Davis, 20 I&N Dec. 536 (BIA 1992).
Section 1952(a)(1)(A) thus is potentially a good plea for an immigrant facing serious federal drug charges because it avoids an aggravated felony. However, the immigrant would remain inadmissible and deportable for conviction of an offense involving a controlled substance.
Matter of V-X-
The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.
The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.
The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.
The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.
Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.
Descamps v. United States
The Supreme Court overruled the Ninth Circuit's en banc decision on the categorical analysis of criminal convictions in United States v. Aguila-Montes de Oca. The categorical analysis refers to the process of comparing a prior state or federal conviction to a generic federal definition of a crime to determine whether the prior conviction triggers certain consequences. The Supreme Court held that a court may look to the record of conviction (charging document, plea transcript, jury findings, etc.) only if the defendant was convicted of a “divisible” statute and resort to the record is necessary to determine which of separate alternative elements that the conviction rested on. In contrast, if a statute is not divisible—meaning it contains a single set of elements that is broader than the generic offense—the categorical inquiry is resolved in the defendant’s favor, even if he actually committed the generic offense or admitting to doing so.
My own example based on the holding is as follows: if a statute penalizes possession of cocaine, heroin, or marijuana (and if the identity of the drug is relevant to the federal generic definition), then the reviewing court can look to specified documents from the record to determine if the conviction was for cocaine, heroin, or marijuana. On the other hand, if the statute penalizes possession of unspecified drug paraphernalia, then the reviewing court may not be look to the record to determine the drug that the paraphernalia related to, since the identity of the drug is not an element of the offense.
In Aguila-Montes de Oca, the Ninth Circuit had held to the contrary that a reviewing court may look beyond the elements of a conviction to assess the purported facts of a case based on the prosecution's theory of the crime. For example, pursuant to that opinion a reviewing court could look to other evidence, such as an arrest report, that the paraphernalia had residue of heroin. The Supreme Court not only rejected that approach, but disparaged it. It held that "accepting the Ninth Circuit’s contrary reasoning would altogether collapse the distinction between a categorical and a fact-specific approach." And there are several parts of the Supreme Court's opinion that are more caustic than that, making for a good read.
Matter of Giovanny Rivas
The Board of Immigration Appeals held that a stand-alone 212(h) waiver is not available to a lawful permanent resident unless he is an applicant for admission or files a concurrent application to adjust status. It rejected the immigration judge's decision to grant 212(h) nunc pro tunc to the date of a prior admission to the United States.
Rivas was admitted to permanent resident status in 1998 and then received two separate petty theft convictions in 2001. He traveled abroad on several occasions and was readmitted to the U.S. each time despite his inadmissibility for having two convictions for crimes involving moral turpitude. He later was put in removal proceedings as a deportable alien for having two convictions for crimes involving moral turpitude. He applied for 212(h) as discretionary relief from removal and the immigration judge granted it. DHS appealed and the Board sustained the appeal.
Rivas pointed out DHS should have put him in removal proceedings when he previously applied for admission to the U.S. after travel abroad--at which point he undisputably would meet the eligibility criteria. To now hold that he is ineligible for that form of relief (since he apparently did not have a basis to readjust) based on the fortuitous circumstance that DHS was negligent in allowing him back into the U.S. makes no sense. So, the appropriate remedy, as indicated by an earlier Board decision in Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), is to back-date the grant of the waiver to the date of his earlier erroneous admission.
The Board disagreed, finding that the statute requires the immigrant be an applicant for admission or an applicant for adjustment and that nunc pro tunc relief would impermissibly sidestep that requirement. It said it has to abide by this statutory language to give effect to the clear intent of Congress. The Board described nunc pro tunc relief as a means only to fill a gap in the statutory criteria.
The Board's rationale, however, fails to recognize that the clear intent of Congress is for DHS to put inadmissible immigrants in removal proceedings when they seek admission from abroad. If DHS had done that, Rivas would be eligible for 212(h). Allowing nunc pro tunc relief fills the unanticipated gap of what to do if DHS fails to do its job. Further, permitting a nunc pro tunc 212(h) waiver does not sidestep the statutory language because Rivas was at one point an inadmissible applicant for admission. This is not the case of someone who did not depart the U.S. after becoming deportable.
Of course, the Board's unstated motivation for this decision was likely to avoid setting up an equal protection argument like the one that resulted in Francis extending 212(c) to immigrants who never departed the U.S. The rationale for that decision was that it was unfair to treat immigrants who have departed the U.S. more favorably than immigrants who have not. By holding that neither group is eligible for 212(h) unless they are put in proceedings at the border or apply for adjustment, perhaps the Board hoped to prevent a court decision finding a denial of equal protection. If so, I think it failed. Treating immigrants differently based on the fortuitous circumstance of whether an immigration inspector properly put them in proceedings upon their last arrival to the U.S. or not is just as unfair.
Adrian Moncrieffe v. Holder
From the perspective of attorneys defending immigrants against removal for convictions, it is hard to imagine a better outcome than the Supreme Court's 7-2 ruling in this case. It holds that a conviction satisfies a generic definition of an offense under the Immigration and Nationality Act (INA) only if the minimum conduct for the conviction, not applying legal imagination, satisfies the definition. This rule is faithful to past decisions of the Supreme Court, but it undermines many of the previous Ninth Circuit and Board of Immigration Appeals (BIA) decisions examined on this blog.
The Department of Homeland Security (DHS) put Moncrieffe, a long-term lawful permanent resident, in removal proceedings and alleged he was an aggravated felon drug trafficker based on a Georgia conviction for possession of marijuana with intent to distribute. The conviction resulted from a traffic stop where the police found 1.3 grams of marijuana (enough for 2-3 cigarettes).
Moncrieffe had argued DHS could not prove he was an aggravated felon because the Georgia offense encompasses distribution of a small amount of marijuana for no remuneration (i.e., social sharing) and that is not a felony under the federal Controlled Substances Act (CSA). The lower courts rejected that argument because in a federal prosecution the default sentencing range is as a felony and the defendant would need to establish the small amount and lack of remuneration to qualify for a misdemeanor sentence.
The Supreme Court rejected the hypothetical federal prosecution approach because the INA requires that a conviction be equivalent to a CSA felony to meet the drug trafficking aggravated felony definition and a conviction does not meet that test unless it excludes the possibility of being equivalent to a CSA misdemeanor.
In reaching that conclusion, the Supreme Court forcefully reaffirmed language from its earlier decision in Johnson v. United States: “we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” 559 U.S. 133, 137 (2010) (alterations in original). In other words, if a statute penalizes some conduct that does not meet the INA definition, and there is a realistic probability that the state would prosecute that conduct, then the conviction cannot satisfy the INA definition, unless the record narrows the conviction to the generic INA definition (the modified categorical analysis).
The real action in the lower courts has been attempts to expand the reach of the modified categorical analysis, but Moncrieffe sent a shot over the bow indicating the modified categorical approach is permissible only when the criminal statute lists different crimes separately. This contrasts with the Ninth Circuit's en banc decision in Aguila Montes de Oca. But just what is a divisible statute that lists different crimes separately? The Supreme Court's forthcoming decision in Descamps should answer that.
Moncrieffe also undermines the Ninth's en banc decision in Young, which held that a respondent applying for discretionary relief in removal proceedings could not meet the burden of proving eligibility if the record of conviction is inconclusive as to whether the offense matches the generic INA definition for a disqualifying conviction. Moncrieffe indicates that the categorical approach applies to the question of eligibility for relief too and that a conviction is presumptively for the least serious conduct that has a realistic probability of being prosecuted.
For an excellent practice advisory, visit:
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Ramon Macias-Carreon v. Holder
The Ninth Circuit held that a conviction under California Health and Safety Code section 11359, possession of marijuana for sale, is categorically a controlled substance offense for purposes of inadmissibility. This seems obvious, but the panel says the petitioner argued that 11359 could involve the sale of other substances besides marijuana that are not covered by the federal law. It rejected the argument because the petitioner apparently did not provide any citations to a case where that had occurred and because it seemed "facially implausible."
Alfredo Rolando Lawrence v. Holder
The introductory paragraph to this decision--and the court staff's summary--are misleading, they suggest that an immigrant is not eligible for 212(c) relief if he is an aggravated felon who filed his application for relief after November 29, 1990. The case actually holds, however, that only aggravated felon immigrants who served a sentence of "over 5 years" in prison for the aggravated felony are ineligible for 212(c) (assuming the conviction occurred before April 30, 1997) (see page 4 of the opinion). Of course, this actual holding is not entirely accurate either because the statute says "at least 5 years," not "over 5 years."
All this doesn't inspire a lot of confidence, but the actual holding of the case is consistent with previous interpretations of six other circuits. The court rejected the petitioner's argument that the bar on aggravated felons only applied if the immigrant had an "admission" after November 29, 1990. And "admission" in the sense of reentering the U.S. at a port of entry from abroad. (Lawrence was admitted in 1987.) Instead, the court deferred to the agency's longstanding interpretation that the filing of the application for relief is the "admission," at least for applicants who have not departed the U.S. and sought readmission after conviction. That may not correspond to the statutory language, but Lawrence would not even be eligible for 212(c) if the court hewed closely to 212(c)'s statutory language, which requires the immigrant to depart the U.S. and seek readmission after the conviction (since he did not seek readmission after his conviction in 1992).
Oscar Rojas v. Holder
The Ninth Circuit held that admission to criminal conduct (here, an adult having consensual sex with a minor) could be used to deny pre-completion voluntary departure even if the conduct did not result in a conviction. The court supported that conclusion with a citation to a 1999 decision by the Board of Immigration Appeals (Matter of Arguelles-Campos, 22 I&N Dec. 811 (BIA 1999), which noted in passing that "other evidence of bad character or the undesirability of the applicant as a permanent resident" could be considered even though pre-completion voluntary departure does not require a showing of good moral character.
Abdul H. Alocozy v. USCIS
The Ninth Circuit held that an aggravated felony conviction entered on or after November 29, 1990, permanently prohibits a permanent resident from establishing good moral character for naturalization, even if an immigration judge has granted 212(c) relief from removal. The applicant for naturalization here had been convicted in 1991 of assault with intent to commit rape in violation of section 220 of the California Penal Code.
The Ninth Circuit rejected the argument that the Supreme Court's decision INS v. St. Cyr prohibited the attachment of that new penalty to an offense that was not defined as an aggravated felony at the time of conviction. It reasoned that, unlike removal proceedings where the government must prove removability, in naturalization proceedings the applicant bears the burden of establishing eligibility and no potential applicant could have a settled expectation that a conviction for assault with intent to commit rape would not affect the requirement of proving good moral character.