The Board held that a conviction for unlawful possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) was categorically an aggravated felony. The Immigration and Nationality Act makes a conviction under “section 922(g)(1)... of title 18, United States Code (relating to firearms offenses)” an aggravated felony. The respondent had argued the parenthetical "relating to firearms offenses" limited the definition to firearms and thus excluded ammunition offenses. The Board rejected that argument. It noted that parentheticals have often been found to be merely descriptive and that the language of this particular parenthetical does not indicate Congress intended it to have a limiting effect.
Category: Aggravated Felony
Hector Martin Rodriguez-Castellon v. Holder
The Ninth Circuit held that a conviction for California Penal Code section 288(c)(1) (lewd or lascivious act on child 14 or 15 years of age by a person at least 10 years older) is categorically a crime of violence under 18 USC 16(b), and thus is an aggravated felony with a sentence to one year or more.
Section 16(b) requires that the offense be a felony which “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Citing United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2012) and Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. 2012), the court held that there only need be a substantial risk of the use of force in an "ordinary" case prosecuted under the statute. An offense may be a categorical aggravated felony even where there is a possibility that the statute may be violated "at the margin" in a way that does not involve such a risk.
The court found that "in the ordinary case" of 288(c)(1) there is a substantial risk that the perpetrator will use physical force against the victim, since the victim may resist and the adult may use physical force to ensure compliance. The petitioner had argued the statute covered offenses where the victim consented to the conduct, but the court held that such a possibility at the margin was not enough to prevent it from being considered a crime of violence. The court also noted that PC 288(c)(1) requires an age difference of at least 10 years, which in its view made the use of physical force more likely than in consensual statutory rape (where the perpetrator need only be 18 years of age and the victim could be just one day shy of 18).
William Ernesto Jimenez Bolanos v. Holder
The Ninth Circuit held that a conviction under California Penal Code section 417.3 with a sentence to one year or more is categorically an aggravated felony crime of violence. PC 417.3 penalizes brandishing a firearm in the presence of the occupant of a motor vehicle. The Board of Immigration Appeals had held that it satisfied the definition of crime of violence at 18 USC 16(a) and (b), but the Ninth relied only on subsection (a). It held that PC 417.3 requires brandishing a firearm in a threatening way that would reasonably cause the victim to fear bodily harm. The Ninth held this offense necessarily involves a "threatened" use of force under 18 USC 16(a).
Duenas-Alvarez v. Holder
This case began with a permanent resident's conviction for violating California Vehicle Code section 10851(a) and went all the way up to the Supreme Court. The Supreme Court vacated the Ninth Circuit's previous decision that aiding and abetting does not come within the generic definition of theft for aggravated felony purposes. It held it does. On remand, the Ninth decided the two remaining issues in the case.
First, the Ninth held the modified categorical approach permits use of facts alleged in a charging document if the government also submits an abstract of judgment or minute order that specifies the noncitizen pled to the count that contains those facts. (To be more precise, the court should have held that "elements" alleged in the charging document may be used.) Thus, it rejected the noncitizen's argument that the reviewable documents did not specify whether he was convicted of taking or driving or the non-theft offense of accessory after the fact, which VC 10851(a) also penalizes.
Second, the court rejected the noncitizen's argument that the aggravated felony theft definition requires intent to permanently deprive. Intent to temporarily deprive also satisfies the definition under Board and Ninth Circuit precedent.
United States v. Edwards
In this criminal sentencing case, the Ninth Circuit found--as the government conceded--that burglary under section 205.060 of the Nevada Revised Statutes is not divisible per Descamps and thus is not subject to the modified categorical approach to determine if it is a crime of violence. Nor did the government argue the offense is a categorical crime of violence. Like California Penal Code section 459, NRS 205.060 requires only "entry." It does not specify breaking and entering and apparently it encompasses entering stores open to the public.
Matter of Tavarez Peralta
The Board issued its first published decision giving meaning to section 237(a)(4)(A)(ii) of the INA, the removal ground for engaging in “criminal activity which endangers public safety or national security.”
The respondent was convicted under 18 USC § 32(a)(5), the federal statute penalizing interference with the operation of an aircraft with either the intent to endanger the safety of any person or a reckless disregard for the safety of human life. He obtained the conviction after intentionally pointing a laser at the pilot of a Philadelphia Police Department helicopter, causing the pilot momentarily to lose control of the helicopter as it flew over the city.
In assessing whether this crime made the respondent removable, the Board first noted that § 237(a)(4)(A)(ii) requires “criminal activity” but not a conviction. On that basis, the Board held that the categorical approach does not apply to § 237(a)(4)(A)(ii). It relegated this controversial holding to a footnote with only a general citation to the Supreme Court's decision in Nijhawan.
From there, the Board concluded that the phrase “endangers the public safety” must be narrowly construed and does not include typical “single-victim crimes,” regardless of their seriousness. Rather, the phrase is limited to actions that place a large segment of the general population at risk. Having sidestepped the categorical approach, the Board held that the “totality of the circumstances,” including the extent and character of the potential harm and the facts of the underlying activity, could be considered. Because the respondent’s underlying activity endangered public safety by creating the risk of a helicopter crash over a major city, the Board found him removable.
Finally, although DHS also charged the respondent with removability for an aggravated felony crime of violence, the Board held that his crime was not an aggravated felony because it did not involve physical force or a substantial risk that such force would be used against the person or property of another.
Matter of Ivan Enedelio Flores-Aguirre
The Board held that the offense of traveling in interstate commerce with the intent to distribute the proceeds of a drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) was not a drug trafficking aggravated felony under 101(a)(43)(B) of the Immigration and Nationality Act (INA).
The Board held that the offense did not meet either test for that definition. First, it is not a drug trafficking crime as defined by 18 U.S.C. § 924(c) because that subsection is limited to conduct punishable as a felony under “the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46,” which does not include distribution of proceeds under 18 U.S.C. § 1952(a)(1)(A). Second, it is not a generic offense of "illicit trafficking" in a substance listed under the federal Controlled Substances Act because the offense does not involve trading or dealing. See Matter of Davis, 20 I&N Dec. 536 (BIA 1992).
Section 1952(a)(1)(A) thus is potentially a good plea for an immigrant facing serious federal drug charges because it avoids an aggravated felony. However, the immigrant would remain inadmissible and deportable for conviction of an offense involving a controlled substance.
Matter of V-X-
The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.
The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.
The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.
The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.
Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.
Adrian Moncrieffe v. Holder
From the perspective of attorneys defending immigrants against removal for convictions, it is hard to imagine a better outcome than the Supreme Court's 7-2 ruling in this case. It holds that a conviction satisfies a generic definition of an offense under the Immigration and Nationality Act (INA) only if the minimum conduct for the conviction, not applying legal imagination, satisfies the definition. This rule is faithful to past decisions of the Supreme Court, but it undermines many of the previous Ninth Circuit and Board of Immigration Appeals (BIA) decisions examined on this blog.
The Department of Homeland Security (DHS) put Moncrieffe, a long-term lawful permanent resident, in removal proceedings and alleged he was an aggravated felon drug trafficker based on a Georgia conviction for possession of marijuana with intent to distribute. The conviction resulted from a traffic stop where the police found 1.3 grams of marijuana (enough for 2-3 cigarettes).
Moncrieffe had argued DHS could not prove he was an aggravated felon because the Georgia offense encompasses distribution of a small amount of marijuana for no remuneration (i.e., social sharing) and that is not a felony under the federal Controlled Substances Act (CSA). The lower courts rejected that argument because in a federal prosecution the default sentencing range is as a felony and the defendant would need to establish the small amount and lack of remuneration to qualify for a misdemeanor sentence.
The Supreme Court rejected the hypothetical federal prosecution approach because the INA requires that a conviction be equivalent to a CSA felony to meet the drug trafficking aggravated felony definition and a conviction does not meet that test unless it excludes the possibility of being equivalent to a CSA misdemeanor.
In reaching that conclusion, the Supreme Court forcefully reaffirmed language from its earlier decision in Johnson v. United States: “we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” 559 U.S. 133, 137 (2010) (alterations in original). In other words, if a statute penalizes some conduct that does not meet the INA definition, and there is a realistic probability that the state would prosecute that conduct, then the conviction cannot satisfy the INA definition, unless the record narrows the conviction to the generic INA definition (the modified categorical analysis).
The real action in the lower courts has been attempts to expand the reach of the modified categorical analysis, but Moncrieffe sent a shot over the bow indicating the modified categorical approach is permissible only when the criminal statute lists different crimes separately. This contrasts with the Ninth Circuit's en banc decision in Aguila Montes de Oca. But just what is a divisible statute that lists different crimes separately? The Supreme Court's forthcoming decision in Descamps should answer that.
Moncrieffe also undermines the Ninth's en banc decision in Young, which held that a respondent applying for discretionary relief in removal proceedings could not meet the burden of proving eligibility if the record of conviction is inconclusive as to whether the offense matches the generic INA definition for a disqualifying conviction. Moncrieffe indicates that the categorical approach applies to the question of eligibility for relief too and that a conviction is presumptively for the least serious conduct that has a realistic probability of being prosecuted.
For an excellent practice advisory, visit:
GDE Error: Error retrieving file - if necessary turn off error checking (405:Method Not Allowed)
Rogelio Barragan-Lopez v. Holder
The Ninth Circuit held that California Penal Code § 210.5, the felony of false imprisonment "for purposes of protection from arrest, which substantially increased the risk of harm to victim, or for the purpose of using person as a shield," is categorically a crime of violence under 18 U.S.C. § 16(b) because, by its nature, it carries a substantial risk that physical force will be used in the course of committing the offense.
In reaching its conclusion, the court first analogized § 210.5 to evading arrest and kidnapping, two other offenses which the court has found to be categorically crimes of violence under 18 U.S.C. § 16(b). The court then explained that the ordinary scenario resulting in a conviction of § 210.5 is one where the defendant used a hostage to protect himself from arrest or harm—a scenario which creates a risk that (1) the defendant will use physical force to retain control over the hostage or prevent intervention by police or others or (2) the police or others will take actions resulting in physical force being applied to the hostage or another bystander.
The latter possibility, that the police might take actions that result in the application of force, does not seem to support the argument given the Ninth Circuit's decision in Teposte v. Holder, 632 F.3d 1049, 1055 (9th Cir. 2011) that only intentional application of force by the defendant satisfies § 16(b). Curiously, the court does not fully address Teposte.