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Author: Scott Mossman

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The Board held that California Penal Code section 314(1) (every person who willfully and lewdly exposes his person or private parts in any public place or in any place where there are present other persons to be offended or annoyed is guilty of a misdemeanor) is categorically a crime involving moral turpitude (CIMT). Unlike other Board cases that held simple indecent exposure was not a CIMT, the Board held that indecent exposure coupled with the element of lewd intent made PC 314(1) categorically a CIMT.

In reaching that conclusion, the Board rejected the contrary interpretation of the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) that PC 314(1) is not categorically a CIMT. It invoked authority to interpret the CIMT definition pursuant to Brand-X and held that the interpretation of lewdness for PC 314(1) by California courts would always involve moral turpitude. It rejected an argument that nude dancing at a bar might be prosecuted under PC 314(1), and that such dancing would not be a CIMT, as unrealistic and contrary to the California Supreme Court's decision in Morris v. Municipal Court, 652 P.2d 51, 59 n.13 (Cal. 1982).

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The Ninth Circuit held that a plea to California Health and Safety Code 11378 (possession of a controlled substance for sale) was an aggravated felony under the modified categorical approach where count 2 of the complaint alleged the substance involved was methamphetamine and the plea form, minute order, and abstract of judgment all indicated the plea was to count 2. It held that the fact the plea was pursuant to People v. West was of no consequence, despite the fact that under California law a West plea does not necessarily admit all of the alleged facts.

The decision fails to even acknowledge that it conflicts with the en banc decision in U.S. v. Vidal or the prior decision in Fregozo v. Holder. Each hold that a minute order must include the critical phrase "as charged" to sufficiently establish under the modified categorical approach that the defendant pled guilty to an aggravated felony where the minute order does not otherwise indicate the factual basis for the plea. This is because under California law a charging document can be orally amended, so a plea to "count 2" does not necessarily mean a plea to the count as written in the complaint. This is particularly true for a West plea. Unfortunately, Valdavinos-Torres fails to even address this issue, which is strange since the decision does discuss Vidal.

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This en banc decision has disastrous consequences for many immigrants who entered guilty or no contest pleas in reliance on Ninth Circuit precedent from the last 5 years. The Ninth Circuit had held in Sandoval-Lua v. Gonzales that an immigrant is eligible to apply for legal status or discretionary relief from removal unless his or her record of conviction clearly shows conviction of a disqualifying offense. This is critical because some criminal statutes cover both conduct that would disqualify a person and conduct that would not disqualify a person. If the record of conviction is ambiguous regarding the offense pled to, Sandoval-Lua had held the immigrant was not disqualified. Young reversed this holding. It held the record must clearly show the person was not convicted of a disqualifying offense.

Moreover, the "record of conviction" includes only the charging instrument, transcript of the plea colloquy, plea agreement, and comparable judicial records of this information. That means police reports, probable cause declarations, the applicant's testimony, etc., cannot be used to show that the person was not convicted of a disqualifying crime. Thus, if the record of conviction is not clear, the Ninth Circuit now holds the applicant cannot establish eligibility.

On the other hand, if the government must establish deportability or inadmissibility (as in many cases regarding lawful permanent residents), then Young held an ambiguous record will prevent the government from meeting its burden.

The one beneficial holding from Young is that a plea to a conjunctively phrased count does not necessarily admit all of the alleged ways of violating the statute. In other words, a plea to a count that alleges sale, transportation, and offering to sell a controlled substance does not equal an admission of all of those offenses. The court recognized that prosecutors often allege commission of all of the various offenses covered by a statute despite only needing prove the defendant committed one of them. Young thus overruled the contrary holding in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc) (per curiam).

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In assessing whether an applicant is barred from asylum or withholding removal because there are serious reasons to believe that the applicant has committed a serious nonpolitical crime before arriving in the U.S., the Board held that the seriousness of the criminal acts should be balanced against their political aspect.

E-A- participated in an attempt to discredit an opposition political party by committing acts of vandalism, assault, and intimidation, including burning buses and destroying merchandise, during the opposition party's events. The Board held that there was a political character to the activities, but that the attempts to discredit were not entitled to as much weight as actions in direct opposition to a party or government. On the other hand, the Board found the activities to involve serious criminality, particularly the arson of the buses. Even though the applicant testified that no one was hurt, it is dangerous to burn buses in the street after forcing the passengers out. Further, the crimes were directed at civilians, not the applicant's political opponents. The Board concluded that on balance the criminal conduct was disproportionate to its political nature, and thus barred asylum and withholding.

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The Ninth Circuit held that the right to counsel provided by 8 C.F.R. § 292.5(b) does not apply to "applicants for admission" at primary or secondary inspection and held that a lawful permanent resident may be treated as an applicant for admission based on the inspecting officer's conclusions.

Generally, returning lawful permanent residents are not considered to be applicants for admission unless an exception at 8 U.S.C. § 1101(a)(13)(C) applies. Here, the exception was that the LPR was found to have engaged in illegal activity after departure from the U.S.: he allegedly attempted to smuggle his niece into the country upon return. The officers detained him 28 hours and interrogated him, obtaining a sworn statement admitting to the smuggling. At his removal hearing he sought to suppress the statement. He argued he had a right to counsel because he could not be considered an arriving alien until he received a final administrative determination of that issue by the immigration judge and Board of Immigration Appeals.

The Ninth Circuit disagreed, finding that the respondent's argument was "not consistent with the language of the statute or with logic." Really? The officer usually has nothing more than suspicion until the officer interrogates the returning resident--here after more than 24 hours in detention with no access to counsel. Thus, it is the denial of counsel that permits the government to establish that a returning resident is an arriving alien--not vice versa.

As an interesting corollary, I think most CBP officers would be surprised to learn that returning residents have a right to counsel during primary and secondary inspection IF they cannot be considered arriving aliens under § 1101(a)(13)(C). In other words, I don't think an LPR who is potentially deportable for a conviction but not inadmissible for it (e.g., a firearms offense) will be given an opportunity to have his attorney present at the airport. We'll see if that changes with this decision.

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In this case, the Ninth Circuit provided an important interpretation of the "necessarily rested" limitation in last year's en banc decision in Aguila Montes de Oca. It first, unsurprisingly, held that a conviction for sexual battery under California Penal Code section 243.4(a) is not categorically an aggravated felony for sexual abuse of a minor. Obviously, PC 243.4(a) may be committed against an adult. More importantly, though, it found the conviction was not for sexual abuse of a minor under the modified categorical approach either, despite an allegation in the charging document that the victim was a minor.

Under the modified categorical approach, a court may review record of conviction documents to determine whether an overbroad offense has been narrowed to match a generic federal aggravated definition. Aguila Montes de Oca held that alleged facts in a charging document, or other evidence of the prosecution's theory of the offense, may be used if the eventual conviction "necessarily rested" on them.

In this case, the charging document alleged the victim's date of birth, which would make her a minor at the time of the offense. Sanchez-Avalos pled no contest to the offense and was later put in removal proceedings upon return from a trip to Mexico. The immigration judge found him inadmissible for a crime involving moral turpitude and denied his application for a 212(h) waiver of inadmissibility. The Board dismissed his appeal of the decision, holding that the conviction was an aggravated felony for sexual abuse of a minor that disqualified him from 212(h).

The Ninth Circuit, however, held that the conviction could not have "necessarily rested" on the date of birth allegation in the charging document because the victim's age is irrelevant to the sexual battery charge. It could have obtained a conviction at trial even if the birth date contained a typo and the victim was actually an adult. Thus, this conviction is not an aggravated felony under the modified categorical analysis.

Finally, this decision requires a shout out to the attorney for the immigrant, rock star criminal immigration attorney Michael Mehr.

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Relief under former section 212(c) is unavailable for a permanent resident who has served a "term of imprisonment" of more than 5 years for conviction of an aggravated felony, but what if part of that was credited for time spent in civil psychiatric pre-trial confinement pending a determination of competence to stand trial? In an unpublished 1 member decision, the Board held that the entire 392 days that Corpuz spent in that civil confinement does count, which pushed him over 5 years.

The Ninth Circuit disagreed. It found that the common meaning of imprisonment does not include civil confinement, but it declined to entirely disregard Corpuz's time in civil psychiatric confinement because Corpuz did receive credit from the sentencing judge for that time. The court found that counting all of it, though, would be unfair because there is no credit for good conduct and the confinement can last a long time compared to typical pre-trial confinement. The court thus attempted to achieve what it determined was the statutory purpose by holding that the immigration judge should determine how long the confinement would have been if there was good time credit. It called this constructive good time credit.

Something tells me there will be a petition for rehearing in this case, although grant of en banc rehearing seems unlikely given Corpuz's situation would seem to be rare and there is no conflicting precedent.

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The Ninth Circuit held that an abstract of judgment for a California Health and Safety Code section 11377(a) conviction that indicates a plea to a criminal count that identifies the substance as a regulated substance under the federal Controlled Substances Act (here, methamphetamine) satisfies the government's burden to prove removability for conviction of a controlled substance offense. It held this was the case even where the abstract itself does not identify the substance (here, counsel for the immigrant obtained amendment of the abstract to remove its specification of the controlled substance).

The panel further disregarded the fact that Cabantac's plea was pursuant to West/Alford because the plea transcript identified the substance as methamphetamine.

The lesson? Correct an abstract of judgment early in the removal proceedings if necessary, but that may not be enough if competent immigration counsel was not involved at the time of the criminal proceedings. (A shameless plug to consult with an attorney such as myself!)

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This decision interprets and applies the Ninth Circuit's 2011 decision in Aguila Montes de Oca to the following question: In determining the facts "necessarily found" by the trier of fact for a particular criminal conviction, may an immigration judge import facts from the factual basis for a separate conviction in the same criminal proceeding? The court said no over Judge Bybee's vigorous dissent.

The permanent resident in this case was serving in the U.S. Marines when he used a government computer to access pornography, at least some of which involved minors. He was court martialed and pled guilty to two counts. The first, under the Uniform Code of Military Justice (UCMJ) Article 92, was for “violat[ing] or fail[ing] to obey any lawful general order or regulation.” The specific order or regulation at issue was Department of Defense (DOD) Directive 5500.7-R, which provides for use of a government computer for authorized purposes only, which does not include accessing pornography (of any type). The second offense Aguilar-Turcios pled guilty to was bringing discredit upon the armed forces in violation of UCMJ Article 134 by “wrongfully and knowingly possess[ing] visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline of the armed forces.” In other words, the Article 92 charge referenced only accessing pornographic websites, while the Article 134 charge specified accessing child pornography. When the judge took Aguilar-Turcios' guilty pleas for the two offenses, the judge questioned him about the factual basis for the pleas. Regarding the Article 92 offense, the judge asked Aguilar-Turcios only to confirm visiting pornographic websites, while the judge asked about pornography involving minors for the Article 134 plea.

Aguilar-Turcios was put in removal proceedings after completion of his sentence and bad-conduct discharge from the Marines. DHS alleged that both of the convictions amounted to aggravated felonies under Immigration and Nationality Act (INA) section 101(a)(43)(I) as convictions for “an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography).” Applying the Ninth Circuit's then-valid missing element rule, the immigration judge found the Article 92 conviction was an aggravated felony and the Article 134 conviction was not and ordered removal. The permanent resident appealed the finding that the Article 92 conviction was an aggravated felony, but DHS unwisely chose not to appeal the finding that the Article 134 conviction was not. While the case was before the Ninth Circuit, the court overruled its missing element rule and issued en banc decision in Aguila Montes de Oca.

Aguila expanded what may be considered as part of the "conviction" when determining whether a particular conviction matches the generic definition of a deportable offense in the INA, i.e., conducting the modified categorical analysis. Previously, the court had held that if a person has been convicted of an offense that is missing an element of the generic definition under the INA, then there never could be a match between the two that would establish deportability. For example, a person convicted of assault could not be deportable for a firearms offense if the assault statute did not include a firearm as at least one means of committing the assault--even if a person in fact did use a firearm to commit the assault. Aguila overruled that precedent and held that a court may consider more than the elements of the statute to determine whether a match exists. It held that a court could also consider any facts necessarily found by the trier of fact in support of the conviction. “If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy the elements of the generic crime, then the factfinder necessarily found the elements of the generic crime."

In Aguila-Turcios then, the government (and Judge Bybee in dissent) argued that facts found for the Article 134 conviction could be considered in determining whether the Article 92 conviction amounted to an aggravated felony (because DHS waived its opportunity to argue that the Article 134 conviction also was an aggravated felony). This would have been a significant enlargement of Aguila, since Aguila specifies that the facts must have been necessary to support the conviction. How could the alleged fact of depiction of minors be necessary to the Article 92 charge when the government did not include it in the allegations and Aguila-Turcios did not admit it? He only needed to admit accessing pornography in general, and that is all he did admit for that offense.

Fortunately, the majority of the panel did not agree with the government and did not use the unsympathetic facts of this case to create bad law. The court held that for a conviction to be an aggravated felony under the INA, the factual basis for that particular conviction must satisfy the aggravated felony definition. Borrowing from another conviction doesn't cut it.

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The Board held that a conviction by a municipal court in Wichita, Kansas, for a violation of a municipal controlled substance ordinance is a conviction for immigration purposes because the proceedings were "genuine criminal proceedings." The respondent was fined and jailed for possession of marijuana in a municipal court. He later was convicted in a state court of a felony for possession of marijuana with a prior municipal court conviction. ICE then initiated removal proceedings, alleging removability for a controlled substance offense and for an aggravated felony. It alleged his possession with a prior conviction was an aggravated felony.

The respondent raised several arguments to attack the validity of the underlying municipal court judgment. The Board rejected the respondent's first argument that the municipal court proceedings were not genuine because there was no absolute right to counsel. Witchita apparently provides a right to appointed counsel only in municipal court cases where there is a possibility of incarceration, but not otherwise. The Board found this was consistent with the constitutional right to counsel for indigent persons, so it did not agree that the proceedings were not genuine. (It is unclear whether he actually had counsel or not, but he would appear to have the right to it because he received a sentence to incarceration for the municipal conviction.)

The respondent further argued that his lack of counsel (or advisement by the judge) deprived him of information about the potentially serious immigration consequences of his municipal court plea. The Board treated that as a collateral attack against the judgment, rather than as an argument that the proceedings were not genuine. As such the Board held that the respondent needed to make the argument to the criminal court, not to the Board. (Again, this argument is curious since he apparently did have a right to counsel.)

The respondent also argued that convictions in the Witchita municipal courts were not genuine because there is no right to jury trial on the charges. However, there is a right to trial de novo before a jury in a state district court if the municipal court finds the defendant guilty. The Board found this right to request a new trial if the defendant is dissatisfied is enough.

Additionally, unlike the Oregon procedures in Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004), Witchita municipal proceedings require the prosecutor to prove the offense beyond a reasonable doubt. The proceedings thus were genuine by that measure as well.

The impact of this case goes far beyond Witchita convictions, though. The reasoning behind it strongly indicates that California infractions will be considered convictions for immigration purposes as well. There had been some hope that Eslamizar signaled an intent to not treat infractions as convictions, particularly since in California there is no right to appointed counsel for them. Cuellar-Gomez dispels that hope. Further, California requires proof beyond a reasonable doubt for infraction convictions, so that argument from Eslamizar does not apply either.

The respondent in Cuellar-Gomez also argued that his municipal conviction could not support ICE's charge of removability under section 237(a)(2)(B)(i) for being "convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance." He was convicted under a municipal ordinance, not any law or regulation of a State. The Board rejected that argument because a municipality is a creature of the state, so its laws are laws of the state.

Finally, the Board held that Cuellar-Gomez's conviction was an aggravated felony because it corresponds to a federal felony under the Controlled Substances Act for recidivist possession, 21 U.S.C. § 844(a). As required for a federal recidivism felony, the prior conviction was final and respondent received advance notice of the enhancement for having a prior conviction.

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