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Category: Categorical Analysis

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California theft is not aggravated felony theft per the Ninth Circuit's decision in Roberto Lopez Valencia. This is so because California's definition of theft at PC 484 encompasses more than the federal generic definition of theft and it is not divisible into separate crimes that do meet the federal definition.

Unlike the federal definition, California PC 484 applies to more than taking property without consent and with the intent to deprive the owner of the rights of ownership. PC 484 also covers theft of labor, false credit reporting, and theft by false pretenses. The Ninth Circuit has long recognized this, so it has permitted review of documents from the conviction record to determine if there is a match to the federal definition.

Lopez Valencia held that this was no longer permissible under the Supreme Court's decision in Descamps and the Ninth Circuit's subsequent decision in Rendon. Descamps held that a court may only review documents from the record of conviction to determine whether a conviction meets a federal definition if a statute of conviction contains multiple alternative elements, such that the statute really lists multiple different crimes. A statute is not divisible if it encompasses multiple alternative means of committing the same crime. How to distinguish between elements and means? Rendon held that elements require juror agreement, while means don't.

Under California law larceny, embezzlement, theft by false pretenses, false credit reporting, and theft of labor are all means of committing the unitary crime of theft. They are not separate alternative crimes. How do we know? Because the California Supreme Court has held that a prosecutor need not convincing a jury to agree on which type of theft a defendant committed in order to secure a conviction. The California law was written that way to make it easier for prosecutors to convict thieves. However, it also means that California theft can never meet the federal aggravated felony definition.

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Jose Reyes Ruiz-Vidal was not quite as lucky in his second published decision from the Ninth Circuit as he was in his first, Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007). In the second decision, the Ninth Circuit held that he was deportable for a conviction for California Health & Safety Code 11377(a). The case is significant because the court held that a charge originally filed against a defendant narrows a plea to a lesser included offense under the modified categorical approach.

In 2009, Jose Reyes Ruiz Vidal was charged in a felony information with sale of a controlled substance in violation of California Health & Safety Code (HS) 11379(a), "to wit: methamphetamine." He later pleaded no contest to HS 11377(a), simple possession of a controlled substance. The plea transcript and minute order for the hearing indicated that the plea to 11377(a) was as a lesser included offense to the 11379(a) charge, which had referenced methamphetamine.

The Ninth Circuit previously held in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) that HS 11377(a) is not categorically a controlled substance offense, since it covers at least one or two substances not covered by the federal Controlled Substances Act. However, it found the offense was divisible. That means a court can review certain record of conviction documents to determine if the conviction actually involved a federal controlled substance.

Methamphetamine is definitely a federal controlled substance, so the question in Ruiz-Vidal was whether the specification of meth in the sale charge meant that the lesser included plea to simple possession was also for meth. Judge Kozinski said yes, finding that the specification of a particular substance in the original charge meant that a lesser included plea must be to that same substance. That is common sense, although Judge Reinhardt's dissent demonstrates why it is not legally correct. Regardless, it is now the law of the Ninth Circuit, since the court denied en banc rehearing and the Supreme Court denied the cert petition. Criminal defense counsel beware.

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When is a penal statute "divisible" and thus susceptible to review of an individual's record of conviction for purposes of determining deportability? The Supreme Court held in Descamps v. United States, 133 S. Ct. 2276 (2013) that a statute is divisible if it contains an element that may be satisfied by any one of multiple alternatives enumerated in the statute, at least one of which meets a federal generic definition and at least one of which does not. That decision, however, does not answer whether to be divisible a judge or jury must unanimously agree on which of the alternatives was committed in a specific case. Attorney General Loretta E. Lynch took jurisdiction over cases of Martin Chairez-Castrejon and Vera Sama to weigh in on that question.

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In this decision issued in June of 2015, the Board of Immigration Appeals stated that the "ordinary case" test applies to its determination of whether a felony battery conviction under section 784.041(1) of the Florida Statutes meets the crime of violence definition at 18 U.S.C. 16(b).

The ordinary case analysis (and I use the term "analysis" with some hesitation) means that a court applies judicial imagination to hypothesize whether a particular offense would typically involve a substantial risk that the offender may use violence in the course of committing the offense. For example, the Supreme Court has found that residential burglary is the classic example of such an offense, even though the burglar may commit the offense when no one is home and the risk of violence being used is little to none.

Mario Francisco-Alonzo had argued that the Supreme Court's 2013 decision in Moncrieffe v. Holder meant that a crime is a crime of violence only if the least conduct that has a probability of being prosecuted involves a substantial risk of violence. He argued that an offender could commit battery in violation of section 784.041(1) with only a minimal amount of force but still cause serious harm to a so-called eggshell victim and that such a case would not involve a substantial risk of violence. The Board conceded that there might be a situation where a defendant could be prosecuted for use of minimal force against an eggshell victim, but the Board rejected his argument because it concluded that is not the ordinary case for felony battery under section 784.041(1).

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The Board of Immigration Appeals previously held that Chairez's conviction for felony discharge of a firearm in violation of section 76-10-508.1 of the Utah Code is a removable firearms offense, but not an aggravated felony.  Visit my previous post for that decision. DHS did not like that decision and filed a motion to reconsider, arguing it was not consistent with the emerging law of the Tenth Circuit (in which Chairez's removal proceedings were held).

The Board's previous decision in Chairez concluded that a conviction of section 76-10-508.1(1)(a) is not categorically a crime of violence aggravated felony because the conviction may rest on intentional, knowing, or reckless conduct and reckless conduct will not support a crime of violence conviction.

The Board's previous decision further held that it could not look to the record of conviction to determine whether Chairez pleaded guilty to committing the offense with intent, knowledge, or recklessness. The Supreme Court in Descamps held that so-called modified categorical analysis was permitted only where the statutory definition of the offense was divisible into multiple alternative elements.  And the Board understood elements to mean those facts about the crime that a jury would need to agree upon to convict (as opposed to means, such as baseball bat vs. pipe, on which a jury need not agree).  The Board found that Utah law did not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness in discharging a firearm in violation of section 76-10-508.1(1)(a), so it held the offense was not divisible and thus the record of conviction could not narrow the conviction to match the aggravated felony definition.

DHS argued on a motion to reconsider, however, that a recent decision of the Tenth Circuit understood the "alternative elements" referred to in Descamps to mean any alternative phrases in a statutory definition of an offense, regardless of whether a jury must agree upon one of the alternatives to convict.  The Board that agreed the Tenth Circuit understood the Supreme Court's decision this way and found that it was compelled to apply that interpretation in the Tenth Circuit.  Under that interpretation, it does not matter whether jury unanimity was necessary on whether a defendant discharged a firearm with intent, knowledge, or recklessness.  The court may look to the record of conviction to determine which of those alternatives the defendant pleaded to in order to determine whether the conviction satisfies the aggravated felony definition. The plea agreement in Chairez's case specified that he "knowingly discharged a firearm in the direction of any person," so the record of conviction satisfied the crime of violence aggravated felony definition in the Tenth Circuit.

Notably, though, the Board declined to retreat from its previous decision in Chairez, except in those circuits like the Tenth that understood the "elements" in Descamps to include what would normally be considered "means" that need not be agreed upon by a jury.  That emerging circuit split has the Tenth, First, and Third Circuits  one side and the Fourth, Ninth, and Eleventh on the other (although the Ninth Circuit did not faithfully apply the jury unanimity understanding of elements in a case involving a controlled substance--see Coronado v. Holder).  Chairez II held that the Board would apply the law of whatever circuit the removal proceedings occurred in or, if there is no controlling law, then the opinion in Chairez I.

Thus, in the First, Third, and Tenth Circuits defense counsel must be extremely careful about what ends up in the record of conviction.  Indeed, defense counsel in every circuit should do that, at least until the Supreme Court resolves the circuit split.  What does it mean to be careful about what ends up in the record of conviction?  Take Chairez's case for instance.  Since Utah apparently does not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness, it would seem perfectly acceptable to list all three in the plea statement.  Instead of "knowingly discharged a firearm in the direction of any person," the plea could read "intentionally, knowingly, or recklessly discharged a firearm in the direction of any person."  With the reckless alternative included, DHS could not meet its burden of proving deportability. Even better if you can get the prosecutor to agree to a plea that specifies only reckless conduct.

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Attorney General Holder vacated Attorney General Mukasey's 2008 decision to authorize an unprecedented factual inquiry to determine whether a conviction involved moral turpitude.  In doing so, he recognized that five circuit courts of appeal had rejected the reasoning of that decision (while two had deferred to it). He also recognized the Supreme Court has repeatedly emphasized that convictions must be judged by their legal elements, not the alleged facts that led to them.

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In Ferreira, the Board of Immigration Appeals held that conviction of a state controlled substances offense that, on its face, controls some substances not controlled by the federal Controlled Substances Act (in addition to some that are) establishes deportability unless the respondent establishes a realistic probability that the state would actually prosecute offenses involving the substances not covered by federal law.  This conclusion, however, is now in some doubt following the Supreme Court's later decision in Mellouli v. Lynch.

ICE put Ferreira, a lawful permanent resident, in removal proceedings after his conviction of section 21a-277(a) of the Connecticut General Statutes Annotated in 2010.  It charged he was deportable for a controlled substance offense and aggravated felony because section 21a-277(a) prohibits the sale of various controlled substances.  Ferreira argued ICE could not establish deportability because his conviction record did not specify what substance he sold and at the time section 21a-277(a) covered sale of two opiate derivatives (benzylfentanyl and thenylfentanyl) not listed in the federal Controlled Substances Act, in addition to many substances that do appear in the federal Controlled Substances Act.

The Board labeled the two non-covered substances "obscure" and held the immigration judge should have conducted fact-finding to determine whether the State of Connecticut would actually prosecute a person for sale of those substances.  It reached this conclusion based on its reading of the Supreme Court's decisions in Moncrieffe and Duenas-Alvarez, which held that the categorical approach was not an invitation to exercise "legal imagination." To defeat a charge of deportability, that precedent requires a the respondent to show that there is a realistic probability that a state would prosecute an offense that does not meet the generic definition.  The Board then asserted

Under that test, for the proceedings to be terminated based on this discrepancy between the Connecticut and Federal schedules, Connecticut must actually prosecute violations of section 21a-277(a) in cases involving benzylfentanyl and thenylfentanyl.

Thus, the Board expected Ferreira to cite an example of a prosecution for one of those substances.

The problem with the Board's approach is that it conflates obscurity with likelihood of prosecution.  Ferreira may not be able to provide an example of a Connecticut prosecution for benzylfentanyl or thenylfentanyl because they are not commonly abused drugs and thus are not commonly sold, particularly in a small state like Connecticut.  That does not mean, though, that Connecticut would not prosecute an offense involving one of those substances if given the chance.  Both substances are explicitly covered by the statute.  In other words, the fact that an offense is uncommon does not mean that a court would have to exercise legal imagination to say that it would be prosecuted.

The Supreme Court seemed to implicitly recognize this issue in its later decision in Mellouli.  Mellouli held that a Kansas conviction under an overbroad controlled substances offense does not establish deportability if the record of conviction does not establish the offense related to a substance covered by the federal Controlled Substances Act.  Mellouli did not address whether there was a realistic probability of Kansas prosecuting the substances that made the Kansas offense overbroad (salvia and jimson weed, which do not appear in the federal schedules).  This is a significant silence, since the Board had just a year earlier held in Ferreira that this must be addressed.  Why didn't the Supreme Court address it?  It did not explain.  It just said (at footnote 8) that the case did not require the Court to decide whether Ferreira applied the categorical approach correctly.

I would argue, though, that it takes no legal imagination to suppose that a state would prosecute an offense involving a controlled substance that is explicitly covered by statute or regulation.  The fact that a state has not yet had the opportunity to prosecute an offense involving the substance does not mean it would not.  This is what distinguishes Ferreira's situation from the concern raised by the Solicitor General in Moncrieffe--that the failure to explicitly exclude antique firearms from a state firearms statute would mean that it would not match the federal firearms definition even if the state does not actually prosecute antique firearms offenses.  Moncrieffe did not say that a state firearms statute that explicitly does cover antique firearms would not match the federal firearms definition merely because the state, perhaps a small one like Connecticut, has not had an opportunity to prosecute an antique firearms case yet.

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The Supreme Court reached the sensible decision in this case that a noncitizen is deportable for a drug paraphernalia conviction only if the government proves the conviction relates to a substance appearing on the federal controlled substances schedules.  This decision provides a valuable plea option for some minor drug cases, at least in states that control substances that do not appear on the federal schedules.

Here, Mellouli was arrested for DUI and at booking his sock was found to contain 4 pills.  At the time, he allegedly admitted they were Adderall and that he did not have a prescription.  In court, Mellouli pleaded guilty to possession of drug paraphernalia (the sock), but the drug that the paraphernalia charge related to was not specified in the charging document or his plea.  The identity of the substance thus was not established by the conviction. This is significant because Kansas law at the time controlled some substances that do not appear in the federal schedules, so simply having a paraphernalia conviction in Kansas did not establish a conviction relating to a federal controlled substance.

Relying on Matter of Martinez Espinoza, 25 I&N Dec. 118 (2009), the immigration judge and Board of Immigration Appeals held that the government did not need to prove that Mellouli's paraphernalia conviction related to Adderall or any other specified controlled substance. It was enough that the sock related to "the drug trade in general."

The Supreme Court disagreed and once again faithfully applied the categorical approach, as it has in a string of recent decisions.  The categorical approach requires that the elements of a conviction necessarily match the elements of a federal generic definition.  If there is no match, then there is no penalty--in this case, no deportability.  The text of the deportability statute here requires that a conviction "relat[e] to a controlled substance (as defined in section 802 of Title 21)."  If the conviction does not necessarily relate to a controlled substance as defined in section 802 of Title 21 (the federal Controlled Substances Act) because state law covers one or more substances not covered by federal law, then the noncitizen is not necessarily deportable.

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In an extremely helpful decision for noncitizen defendants, the Ninth Circuit held in Rendon v. Holder that California Penal Code § 459 (burglary) is not an aggravated felony as an attempted theft offense.

A state conviction meets the generic federal definition of an attempted theft offense if it includes the elements of intent to commit a theft offense and an overt act constituting a substantial step towards commission of such an offense. California burglary under section 459 consists of entry into a building, vehicle, or structure with intent to commit theft or any felony.  Thus, it is not necessarily an attempted theft offense because it might involve entering a structure to commit some other crime that is a felony.

Prior to the Supreme Court's decision in Descamps, courts within the Ninth Circuit thus would have examined the record of conviction to determine whether it indicated a plea to entry to commit theft.  If so, then the conviction would be an aggravated felony.  Descamps, however, held that such an examination of the record (called a "modified categorical analysis") was possible only where the offense is divisible.  Divisibility means that the statute of conviction specifies multiple alternative crimes, at least one of which meets a federal definition and at least one of which does not.  Multiple alternative crimes means the statute contains multiple alternative elements of functionally separate crimes, not alternative means of committing a single crime.  An element is something a jury must unanimously find beyond a reasonable doubt.  On the other hand, a jury need not agree on the means of committing a crime (for example, a jury may not need to agree on the type of weapon used in an assault).

The Ninth Circuit held that "theft or any felony" is not divisible because they are alternative means, not alternative elements.  A jury need not agree on whether the defendant entered a structure with intent to commit theft or any other felony to return a conviction for burglary under PC 459.  Since the offense is not divisible, a reviewing court cannot turn to the record of conviction to determine if the conviction was for entry with intent to commit theft.

California PC 459 therefore can never meet the definition of an attempted theft offense because it is broader than the federal generic definition and the modified categorical analysis cannot be used to narrow the conviction to meet the definition.

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The Ninth Circuit upheld a Board of Immigration Appeals decision that a conviction for misuse of a passport to facilitate an act of international terrorism in violation of 18 U.S.C. §§ 1544, 2331, is a categorical crime involving moral turpitude.

The conviction resulted from the petitioner's involvement in efforts to overthrow the communist government of Vietnam, specifically an apprehension in the Philippines as he allegedly was assembling explosive devises for use against the Vietnamese Embassy in Manila.

First, the court held that because section 2331 (intent to facilitate an act of international terrorism) increases the statutory maximum penalty for simple misuse of a passport under section 1544, it is an element of the offense and is to be considered under the categorical analysis of a conviction.

Second, the court agreed with the BIA that intent to facilitate international terrorism is categorically turpitudinous, since it necessarily involves an intent to harm someone and a protected class of victim.  In this case, the court found that the protected class of victim could be either a vulnerable civilian population or a lawful government.  The court's analysis on this point, however, seems thin.  Typically, a protected class of victim would be something like a child, spouse, or elderly person.  Does the government of a country really fit that definition?  It is particularly incongruous here, since the opinion acknowledges the despicable actions of the Government of Vietnam in addressing the petitioner's Convention Against Torture claim.  Also, defining an entire civilian population as a protected class of victim seems broad too.  Doubtless, though, the classification of the offense as "terrorism" compelled the court decide that it necessarily involved moral turpitude.  The opinion would have been sounder if it had dropped "protected class of victim" as a basis for the decision and instead focused on the intended harm required by the statute.

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