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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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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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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 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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The Board of Immigration Appeals held that unlawful sex with a minor aged 16 or 17 is an aggravated felony, even if the penal statute does not require lack of consent, if the offense requires as an element that the defendant be three or more years older than the victim.  It therefore held that a conviction for California Penal Code section 261.5(c) is an aggravated felony.  In reaching this conclusion (in a case arising in the Sixth Circuit), the Board stated its disagreement with the Ninth Circuit's en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

The Board stated its disagreement with Estrada-Espinoza, but its opinion failed to address the statutory construction argument that led the eleven circuit court judges to unanimously hold that California Penal Code § 261.5(c) is not an aggravated felony.  Getting eleven judges to agree on anything is difficult, but it is even harder when the case involves an immigrant charged with a sex offense (although it may have helped that the defendant and victim in Estrada-Espinoza were a boyfriend and girlfriend living together with the consent of both sets of parents).  The statutory construction argument that compelled the Ninth Circuit was that the aggravated felony of "sexual abuse of a minor," which is not defined in the Immigration and Nationality Act, should be drawn from the federal criminal definition of "sexual abuse of a minor" at 18 U.S.C. § 2243.  That federal criminal definition penalizes knowingly having sex with a minor under the age of 16 where there is a 4 year age differential.  It does not penalize consensual sex with a sixteen or seventeen-year-old, regardless of the age differential.  The Ninth Circuit found that since Congress has already supplied this definition for criminal purposes, it is the one that should be used for immigration purposes as well--unless the immigration statute specifies otherwise.  The Ninth Circuit also noted that sixteen is the age of consent in most states, as well as in the Model Penal Code (although some states, like California, set the age of consent at 18).  Thus, it would make no sense to impose the most severe immigration consequences for a conviction of conduct that would not even be criminal for federal purposes or in most states.

Although the Board did not address why it thought it had the authority to fashion a different definition of sexual abuse of a minor than the one enacted by Congress, it did cite social science research that shows an age differential of three or more years created a potentially coercive or exploitative situation that equals abuse.  It then provided examples of exploitative circumstances, such as where a high school teacher has a relationship with a student.  It also voiced its concern that a person may be convicted of Penal Code section 261.5(c) even where the victim is under sixteen and the age differential is substantially more than three years.  But Penal Code 261.5(c) is not the type of deal that a forty-year-old high school teacher would receive where he seduces a fourteen-year-old student.  California has a range of sex offenses, including 261.5(d), that are more likely in that type of egregious situation.

Whether a conviction is an aggravated felony should be determined based on the minimum conduct that has a realistic probability of being prosecuted, not on the worst possible scenario.  That is what the Supreme Court emphasized in Moncrieffe.  And for Penal Code section 261.5(c), there is a realistic probability of a prosecutor charging it in a far more benign situation than posited by the Board.  This is exemplified by Estrada-Espinoza itself, where a fifteen- or sixteen-year-old girlfriend lived with her twenty-year-old boyfriend in the home of his parents with the knowledge and consent of her own parents.  That is hardly a coercive or exploitative situation and it is one that would be entirely legal if they had gotten married (or had lived in another state).  That type of scenario hardly justifies the Board's disregard of Congress's statutory definition of sexual abuse of a minor.

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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 Ninth Circuit held in Roberto Roman-Suaste v. Holder that a conviction for California Health and Safety Code section 11359 (possession of marijuana with intent to sell) is categorically an aggravated felony as a drug trafficking offense pursuant to INA § 101(a)(43)(B), 8 USC § 1101(a)(43)(B).

The petitioner had argued under Moncrieffe that there might be situations where a defendant is convicted of HS § 11359 for distribution for insignificant payment or payment for social, medical, or family purposes, which would not be illicit trafficking.  The court disagreed.  It found that any type of distribution for remuneration would be illicit trafficking and thus an aggravated felony under Moncrieffe.

The court further rejected the petitioner's argument that California extends aiding and abetting liability beyond the generic federal definition, an argument that had little chance given the Supreme Court's decision in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

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