Skip to content

Category: Aggravated Felony

Published on

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

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

DOWNLOAD (PDF, Unknown)

Published on

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

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

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

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

DOWNLOAD (PDF, Unknown)

Published on

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

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

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

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

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

DOWNLOAD (PDF, Unknown)

Published on

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

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

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

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

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

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

DOWNLOAD (PDF, Unknown)

Published on

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

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

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

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

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

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

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

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

DOWNLOAD (PDF, 73KB)

Published on

The Ninth Circuit held that California Penal Code section 69, attempting to deter or resisting an executive officer, is not categorically a crime of violence for aggravated felony purposes. On its face, CPC 69 would seem to be a crime of violence since it may be violated in two ways: (1) by attempting through threats or violence to deter or prevent an officer from performing a duty imposed by law; or (2) by resisting by force or violence an officer in the performance of his or her duty. California jury instructions, however, provide that "violence" in this respect is synonymous with "force" and both "mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act."

The Supreme Court has held that under the first test for determining if an offense is a "crime of violence", 18 USC 16(a) ("an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another") an offense must be an active, violent crime. The Ninth Circuit has previously held that a California battery that requires only an offensive, noninjurious touching does not necessary meet that standard. CPC 69 requires only the same type of battery, so it is not necessarily a crime of violence either.

Although the offense is not a crime of violence under the first test for a crime of violence, the alternative test encompasses "any other offense that is a felony and that, 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." 18 USC 16(b). The Supreme Court has held that this test, like section 16(a), requires a level of intent of at least recklessness. Resisting an officer under the second prong of CPC 69 is a general intent crime that requires only the intent to resist with at least de minimus force. It does not require intentional use of violent force or reckless disregard of a substantial risk that violent force may be used (by the offender). In other words, a person may be convicted of CPC 69 for nonviolently resisting under circumstances where there is no substantial risk of that resulting in violent force. The court contrasted an Arizona statute that had been interpreted by the Arizona courts to exclude de minimus resistance and which required a substantial risk of injury to the peace officer. CPC 69 thus is not categorically a crime of violence.

The court remanded the case to allow the government to file additional conviction documents to establish that this particular conviction was for a crime of violence. When the case was before the agency, the Ninth Circuit's previous "missing element" rule was in effect and the government may not have had cause to submit documents for the so-called modified categorical analysis. Aguila Montes de Oca overruled the missing element rule after the agency decided the case, so the court found the government should have the opportunity to further contest the case under Aguila. The court rejected the petitioner's argument that Aguila's new rule should be applied only prospectively.

Finally, I would note that the fantastic decision in this case was surely the result of great lawyering by super lawyer Holly Cooper of the UC Davis Immigration Law Clinic.

DOWNLOAD (PDF, Unknown)

Published on

The Board held that, with a sentence to a year or more, a conviction for California Penal Code § 32 is categorically an aggravated felony for obstruction of justice under INA § 101(a)(43)(S). In doing so, it clarified its previous decision in Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). The Ninth Circuit had interpreted Espinoza to mean that a conviction involves obstruction of justice only if it involved hindering an ongoing investigation or judicial proceeding. Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). And a conviction under PC § 32 does not require the existence of an ongoing investigation or proceeding, so the Ninth Circuit's interpretation indicated it was not necessarily an aggravated felony.

The Board asserted that "obstruction of justice" in the aggravated felony definition is an ambiguous term and invoked the Supreme Court's decision in Brand-X to interpret that term despite the Ninth Circuit's decision. It held that an offense relates to obstruction of justice "if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice." Further, it implicitly held interference with the process of justice could include assisting with escape from arrest.

The Board distinguished Espinoza, where it held misprision in violation of 18 U.S.C. § 4 was not an obstruction of justice offense, because misprision does not require the person to act with the specific intent to interfere with the process of justice.

All of this points to the more basic problem that the Board has stretched "obstruction of justice" far past its traditional, accepted meaning. The Board asserts the phrase is ambiguous, but is it? Open any law dictionary and it is likely to define the term as interfering with the administration of justice, not as driving a get-away car. And it is not limited to any particular category of crimes, so an accessory after the fact conviction under the Board's definition could be an aggravated felony even where the underlying crime is not.

DOWNLOAD (PDF, 31KB)

Published on

In this case, the government unlawfully removed the respondent before the removal order was administratively final, i.e., while the case was on direct appeal to the Board. The regulations provide that a removal order shall not be executed during the period for filing an appeal to the Board (unless appeal is waived) or while the appeal is pending. The regulations also provide that the departure of a respondent from the U.S. while a direct appeal is pending constitutes a withdrawal of the appeal. 8 C.F.R. § 1003.4. DHS argued that even its removal of the respondent "in error" is a departure that strips the Board of jurisdiction over the appeal. The Board rejected that argument and found, "Fundamental fairness dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien’s appeal."

On the merits of the appeal, the Board held that a conviction for being an "accomplice" to an aggravated felony offense makes an alien removable for an aggravated felony if the conviction is for aiding and abetting the principal offender. The respondent in this case was convicted under an Arkansas statute that defined accomplice more broadly to include "a person who (1) solicits another to commit an offense, (2) aids another in the commission of the offense, or (3) fails to prevent the commission of the offense, so the Board held it was not categorically an aggravated felony. The reviewable record of conviction, however, made it clear the respondent assisted the principal at the scene of the crime. The conviction thus satisfied the modified categorical analysis.

DOWNLOAD (PDF, 27KB)

Published on

The Board held that a second degree murder conviction under a Michigan statute that did not require intent to kill is categorically an aggravated felony "murder" conviction, 8 USC 1101(a)(43)(A). The noncitizen killed two persons in an automobile collision where he was driving under the influence of alcohol. He pled no contest to second degree murder in violation of section 750.317 of the Michigan Compiled Laws.

The Board first found that 8 USC 1101(a)(43)(A) defines murder in the generic sense, so it looked to the law of the majority of states and to the federal definition of murder. It determined these defined murder to include "depraved heart" murder where there was no specific intent to kill, but there was extremely reckless conduct carrying a high likelihood of death or serious bodily injury. The Michigan conviction here was that type of murder, so the Board found it fit the aggravated felony definition.

The Board disregarded the Supreme Court's decision in Leocal because that case concerned whether DUI was a crime of violence, which is a separate aggravated felony offense.

DOWNLOAD (PDF, 58KB)

Published on

The Supreme Court held in this case that the aggravated felony definition at 8 U. S. C. § 1101(a)(43)(M)(i) (an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000") encompasses tax offenses. It reached this conclusion despite a separate provision of the statute that designates only certain tax offenses as aggravated felonies: § 1101(a)(43)(M)(ii) (an offense that "is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000").

The Court's primary justification for why its interpretation did not render clause (ii) superfluous was a hypothetical that even the government conceded had never arisen in any tax prosecution: evasion of tax payment without fraud or deceit. In other words, a taxpayer who files a truthful return but puts the money beyond the IRS's reach. Since the tax offense listed in clause (ii) covers this scenario (as well as evasion that involves fraud or deceit), the Court concluded that clause (ii) covers some offenses not covered by the fraud or deceit offense in clause (i).

Justice Ginsberg's dissent points out how ridiculous it is to attribute this intention to Congress when the government has never prosecuted anyone for filing a truthful return and then evading payment. Instead, she attributes to Congress the sensible intent of only making the most serious tax offense, 26 U.S.C. § 7201, an aggravated felony. And in all of the known prosecutions, that tax offense has involved fraud or deceit. Thus, it makes no sense for Congress to create two provisions side-by-side and have one of them be essentially meaningless. Instead, clause (ii), which specifically addresses the most serious tax offense that causes loss of revenue to the government of more than $10,000, should be interpreted to exclude tax offenses from the fraud and deceit offenses covered by clause (ii). But only two justices agreed with Justice Ginsberg's analysis, so that is not the law.

Read the decision at http://www.supremecourt.gov/opinions/11pdf/10-577.pdf.

510-835-1115