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Category: Deportability / Inadmissibility Grounds

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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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Pointing a laser pointer at a cop is a crime, but it is not a base, vile, or depraved crime according to the Ninth Circuit's decision in Coquico v. Lynch.

ICE put John Coquico in removal proceedings, alleging that he was deportable for conviction of two crimes involving moral turpitude after admission: a 2007 conviction for robbery and a 2006 misdemeanor conviction for "unlawful laser activity" in violation of California Penal Code (PC) 417.26. He argued the PC 417.26 conviction did not involve moral turpitude.

PC 417.26 provides,

(a) Any person who aims or points a laser scope as defined in subdivision (b) of Section 417.25, or a laser pointer, as defined in subdivision (c) of that section, at a peace officer with the specific intent to cause the officer apprehension or fear of bodily harm and who knows or reasonably should know that the person at whom he or she is aiming or pointing is a peace officer, is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not exceeding six months.

The immigration judge found this crime to involve moral turpitude because she found it involved "possession of weapons which are insidious instruments normally used for criminal purposes.” The Board of Immigration Appeals agreed that the crime involved moral turpitude for the slightly different reason of "the crime is committed against a peace officer and the nature of the crime involves using a device which gives the appearance or facade of the use of a deadly weapon."

Really? Apparently the immigration judge and Board are unfamiliar with what exactly a laser pointer is. Helpfully, the California statute defines it as: "any hand held laser beam device or demonstration laser product." You know, like what they use to point on the projection screen at a dreary continuing legal education seminar. Or like the one that naughty kid was using to distract the speakers at the last PTA meeting I went to. Annoying yes, an insidious weapon normally used for criminal purposes no.

Fortunately, the Ninth Circuit also went with annoying rather than deadly. It noted that the statute does not have any requirement that the laser pointer appear deadly to a reasonable person. Nor does the statute require that the peace officer on the receiving end be in reasonable fear of bodily harm (much less experience any harm). In other words, all that PC 417.26 requires is that some knucklehead intend to cause the officer fear of harm, not that the officer have a reasonable basis to fear harm. The Ninth Circuit found that to be the critical point.

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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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Maria Arce Fuentes v. Lynch held that the "circumstance-specific" approach applies to the money laundering aggravated felony definition at 8 USC 1101(a)(43)(D). That definition requires the amount of funds laundered to exceed $10,000, and the circumstance-specific approach allows a court to determine the amount of funds involved by looking to evidence outside the elements of the conviction. The Ninth Circuit held that evidence could include a pre-sentence report (PSR), but not alleged overt acts that were not necessary for the offense of conviction.

In this case, Maria Arce Fuentes was allegedly involved in a conspiracy in Puerto Rico to launder drug trafficking proceeds. She and other codefendants were indicted for conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) and 74 substantive counts of money laundering in violation of 18 U.S.C. § 1956(a). Ms. Arce Fuentes pleaded guilty to conspiracy and the substantive counts were dismissed. The PSR indicated that the prosecution and defense agreed that an eight-level increase to the offense level was appropriate because Ms. Arce Fuentes laundered more than $70,000.

The Ninth Circuit first confirmed that the circumstance-specific approach does apply when determining the amount of funds laundered for the aggravated felony definition at 8 USC 1101(a)(43)(D). The panel found this result compelled by the Supreme Court's decision regarding the similar aggravated felony definition at 8 U.S.C. § 1101(a)(43)(M)(i), which concerns a fraud or deceit offense where the loss to the victim exceeded $10,000. Thus, the agency did not err by looking to evidence beyond the elements of Ms. Arce Fuentes's conviction.

The Ninth Circuit held, however, that this did not extend to consideration of dismissed counts that were not incorporated into the offense of conviction. The immigration judge had found the conviction involved the laundering of funds in excess of $10,000 based on the indictment and the judgment. The conspiracy count that Ms. Arce Fuente was convicted of did not itself allege a loss amount in excess of $10,000, but cited other dismissed counts involving amounts exceeding $10,000. The conspiracy count cited these dismissed counts as overt acts, but this was apparently due to an error in the indictment. In Whitfield v. United States, 543 U.S. 209, 214 (2005), the Supreme Court held that money laundering conspiracy under 18 U.S.C. § 1956(h) does not require an overt act. So, alleging the overt acts was not necessary to the indictment. Since the acts were not necessary for the conviction, the Ninth held that a guilty plea to the conspiracy count did not incorporate them and they could not prove the amount of the funds involved.

Despite this error, the Ninth Circuit upheld the aggravated felony finding because the Board of Immigration Appeals also relied on the PSR. The PSR indicated the parties agreed that the amount of funds exceeded $70,000. No evidence contradicted the PSR, so the Ninth Circuit held it provided clear and convincing evidence to sustain the aggravated felony charge.

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In U.S. v. Francisco Salgado Martinez, a prosecution for illegal reentry after removal, the Ninth Circuit held that child molestation in the third degree under section 9A.44.089 of the Washington Revised Code is not an aggravated felony for sexual abuse of a minor. It held the offense failed both of the alternative tests for that definition.

Under the first test from the court's en banc decision in Estrada-Espinoza, a crime is an aggravated felony if it requires "(1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.” The court held that section 9A.44.089 failed this test because it does not necessarily involve a sexual act, since the Washington courts have found the crime occurred where a defendant rubbed and fondled the victim's thigh through clothing.

Under the second test from Medina-Villa, a crime is an aggravated felony if "(1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse....” The court held Washington 3rd degree child molestation does not necessarily involve "physical or psychological harm in light of the age of the victim in question." Although the court's reasoning on this point was not crystal clear, it appears to rest on the fact that the statute could apply to consensual contact with a teen between the ages of 14 and 16.

Since section 9A.44.089 of the Washington Revised Statutes lacks these elements entirely, the Ninth Circuit held that no conviction for that offense can meet the federal generic definition of aggravated felony sexual abuse of a minor. It therefore held the defendant here was not removable when removed and thus could not be prosecuted for illegal reentry after removal.

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In this case arising from the Commonwealth of the Northern Mariana Islands (CNMI), the Ninth Circuit held that Etumai Felix Mtoched's 1994 conviction for assault with a deadly weapon in violation of 6 N. Mar. I. Code § 1204(a) was a deportable crime involving moral turpitude. It further found that ground of deportability could retroactively apply to Mr. Mtoched even though he was convicted of the offense before the Immigration and Nationality Act (INA) took effect in CNMI. Finally, it held that Mr. Mtoched could not apply for a 212(h) waiver of inadmissibility because he was already in the U.S. and was not eligible to adjust status.

Concerning the first question of whether Mr. Mtoched's assault with a deadly weapon conviction was a crime involving moral turpitude (CIMT), the panel found the statute of conviction was "divisible into three distinct subparts, all involving bodily injury to another person with a dangerous weapon: (1) threaten to cause, (2) attempt to cause, or (3) purposely cause." In reaching this conclusion, however, the panel appears to have assumed divisibility from the text of the statute. Its opinion failed to address prior precedent that holds an offense is divisible only if a jury must unanimously agree on which of multiple alternative elements a defendant committed. See Rendon v. Holder. The Mtoched panel simply ignored that precedent even though the Ninth Circuit had declined to rehear Rendon en banc more than a month earlier.

The panel also held that the CIMT ground of deportability could be applied to Mr. Mtoched even though he was admitted to CNMI, the crime was committed, and he was convicted before the U.S. immigration laws applied to CNMI. As the government agreed, Congress was not explicit in applying the INA to CNMI retroactively. The court therefore considered whether applying the change to Mr. Mtoched "would impair rights [he] possessed when he acted, increase [his] liability for past conduct, or impose new duties with respect to transactions already completed." It determined that Mr. Mtoched's conviction made him deportable under the law that existed in CNMI prior to the INA, and the change also did not make him ineligible for any form of discretionary relief that he was previously eligible for. Both before and after the change, his only hope to remain in CNMI was an exercise of prosecutorial discretion. The fact that the CNMI Attorney General did not move to deport him and the federal government did does not make the change in law retroactive.

At the end of the decision, the panel held, as the Board of Immigration Appeals did, that Tmoched was not eligible for 212(h) because he was present in the U.S. and was not eligible to adjust status. It added a cryptic note saying that he was not eligible to adjust status because he was present in the U.S. as "a citizen of Palau who may enter the United States as a non-immigrant under the section 141 of the Compact of Free Association with the Republic of Palau." It is true that persons admitted without a visa, which is apparently how Mr. Tmoched was admitted, are ineligible to adjust--unless they are eligible for adjustment of status as an immediate relative (spouse or minor child under 21 of U.S. citizen, or parent of U.S. citizen 21 years of age or older). Thus, the real problem appears to be that Mr. Tmoched did not have one of those relationships.

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The Ninth Circuit held that George Camacho Garcia did not validly waive his right to appeal because the immigration judge misadvised him as to whether his California theft conviction was an aggravated felony. Mr. Camacho Garcia was convicted of grand theft in violation of California Penal Code (PC) section 487(a) and received a sentence to 16 months of imprisonment.

The court held Mr. Camacho Garcia's theft conviction was not categorically an aggravated felony. California's definition of theft at PC 484 defines the offense to encompass theft of property, theft of labor, and "consensual" taking by false pretenses (i.e., fraud). The federal generic definition of theft, however, is limited to "[1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." The federal definition therefore does not exactly correspond to the California definition, since it does not include taking by false pretenses or taking of labor. Thus, a California theft conviction with a sentence to imprisonment of one year or more is not categorically an aggravated felony.

The Camacho Garcia panel then applied the modified categorical approach to determine whether the conviction documents narrowed the conviction to the federal definition. It found that the charging document did specify theft of property (as opposed to labor), so the conviction matched that element of the federal definition. The conviction documents, however, did not specify whether the theft was by unlawful taking (without consent) or false pretenses (with consent). The conviction therefore did not match the federal definition.

Note, the issue of divisibility was not raised in the briefs on this case. The court accordingly did not address whether a California theft conviction is even susceptible to the modified categorical analysis of whether the conviction meets the federal definition.

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In Matter of Alcibiades Antonio Pena, the Board of Immigration Appeals held that a permanent resident returning to the United States may not be charged with being an inadmissible arriving alien unless one of the exceptions at INA 101(a)(13)(C) apply--even if the government alleges the permanent resident was not eligible for his status at the time he received it.

Customs and Border Protection treated Alcibiades Antonio Pena, a foreign national admitted to lawful permanent resident status, as an arriving alien and charged him with inadmissibility for misrepresentation, false claim of U.S. citizenship, and no valid admission document. It charged him with these grounds based on an investigation by the U.S. Department of State that occurred prior to his receipt of permanent resident status (and that was known by USCIS when it granted him permanent resident status). Essentially, CBP alleged that Mr. Pena was inadmissible because he was not eligible to obtain permanent resident status--it disagreed with USCIS's decision to grant the application. (Unfortunately, CBP far too often attempts to interpret the documents in a resident's A-file to see if USCIS made a mistake. It can be hard to defend against these post hoc reviews if USCIS does not fully document the basis for the decision in the A-file.)

The Board held that charging Mr. Pena with inadmissibility was not proper. A foreign national may be charged with a ground of inadmissibility only if one of the 101(a)(13)(C) exceptions apply, which include permanent residents who: have abandoned or relinquished that status, been absent from the U.S. for a continuous period of more than 180 days, engaged in illegal activity after departing the U.S., departed while under removal or extradition proceedings, committed an inadmissible criminal offense, or who is attempting to enter (or has entered) without inspection and admission. None of these exceptions apply to Mr. Pena's scenario. Therefore, the government instead should have admitted him to the U.S. It could, however, then charge him with deportability for not being admissible at the time of admission to lawful permanent resident status.

Note that the difference between a charge of inadmissibility and a charge of deportability is important, since an arriving alien charged with inadmissibility is not eligible to obtain an immigration judge's review of a bond decision. A permanent resident treated as an arriving alien also is not eligible to apply for readjustment of status before the immigration judge, and instead would have to make that application to USCIS without the benefit of appellate review. There also is the open question, so far as the Board is concerned, as to which party bears the burden of proof if the returning resident is (properly) charged with inadmissibility. Must the government prove inadmissibility or must the returning resident prove he is not inadmissible? On the other hand, for a charge of deportability (as the Board held applies to Mr. Pena) the government always bears the burden of proof. The determination of who carries the burden of proof often determines who will win the case, so Pena is a very important decision.

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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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