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Category: Aggravated Felony

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The Board confirmed that distribution of a small amount of marijuana for no remuneration is not an aggravated felony, placed the burden of proving that on the respondent, and held the parties may resort to evidence outside the record of conviction to prove whether the amount is "small" and whether the distribution was gratuitous.

A state conviction is an aggravated felony under INA 101(a)(43)(B) for drug trafficking if it would be punishable as a felony under the federal Controlled Substances Act (CSA). Distribution of marijuana is a felony under the CSA, except where the defendant proves as an affirmative defense it involved a “small amount of marihuana for no remuneration,” in which case it is a federal misdemeanor. 21 U.S.C. § 841(b)(4). In states where the penal statute does not provide a similar defense, the Board held an alien put in removal proceedings on the basis of a marijuana distribution conviction can prove the exception to avoid the aggravated felony definition.

The Board also clarified procedural aspects of the exception. It held the exception is of a "'circumstance-specific' nature," so the parties can use evidence outside the record of conviction to prove or rebut the requirements for the exception. Further, the Board put the burden on the respondent to prove by a preponderance of the evidence the applicability of the exception since it is an affirmative defense under the criminal statute.

The Board declined, however, to set a bright line rule on what amount of marijuana should be considered "small." It recognized that a useful guidepost was the exception from deportability for a single offense of simple possession for personal use of 30 grams or less of marijuana. It found, however, that amounts of less than 30 grams would not be considered small in some situations, such as in a prison.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3741.pdf.

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Disagreeing with the Ninth Circuit's decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th 2007), the BIA held in this Fourth Circuit case that a conviction for harassing conduct in violation of California Penal Code § 646.9 is categorically a crime of violence under 18 U.S.C. § 16(b) (thus making it an aggravated felony with a sentence to 365 days or more). The Board therefore reaffirmed its decision in Matter of Malta, 23 I&N Dec. 656
(BIA 2004) in jurisdictions other than the Ninth Circuit. The decision is weak, however, because it fails to meaningfully address the primary rationale for Malta-Espinoza.

The primary rationale for finding that PC § 646.9 is not categorically a crime of violence is that it can be committed by long-distance harassment. Malta-Espinoza cited published California cases where the convictions were for sending letters and pictures through the mail. However, a crime of violence under § 16(b) requires "a substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense." How could violent physical force be used in the course of mailing a letter?

The Board's cursory answer is that sometimes a violent physical encounter follows long-distance harassment. It cites statistics to back up this assertion. I have no doubt that sometimes violence follows long-distance harassment, but that is beside the point. Under well-established California law, the offense would be complete upon the mailing of the harassing letters (even if the sender was incarcerated and even if the recipient is out of the country). That is an offense, and the sender could be immediately prosecuted for it. And, of course, there is no way that sending a letter in-and-of itself carries a substantial risk that violent physical force could be used in committing THAT offense. PC § 646.9 thus does not categorically involve a substantial risk that violent physical force will be used.

If the sender of a harassing letter later shows up at the victim's doorstep to engage in more harassment (as in the example cited by the BIA), then that is a separate offense that likely would involve a substantial risk of the use of violent physical force to commit the offense. But that does not categorically establish that all PC § 646.9 convictions involve conduct that carries a substantial risk of violent physical force. Some may, some clearly would not, which is why the Board should have resorted to the modified categorical approach to determine if the offense underlying this particular conviction involved a substantial risk.

The Fourth Circuit may have a chance to review the Board's decision. Hopefully, it will engage in a more careful analysis. The consequences of the decision are severe. Since it determined the conviction was an aggravated felony, the Board found the respondent ineligible for relief from removal. He thus will lose his green card and be removed and probably will never be able to return to the U.S. All without review of the record of conviction to determine the actual conduct that he pled guilty to.

Finally, note that this decision, and the Malta decision that preceded it, concern only "harassing" conduct in violation of PC § 646.9. The statute also penalizes "following," which neither decision addressed. Given the rationale of this decision, however, it is hard to see how following--even from a great distance--would not be found to be a crime of violence.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3738.pdf.

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The Board of Immigration Appeals held that a conviction under California Penal Code § 311.11(a) for possession of child pornography was an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). It also held that the circumstances surrounding the offense made it a particularly serious crime that barred withholding of removal.

The Board noted that the aggravated felony definition at section 1101(a)(43)(I) covers offenses described in 18 U.S.C. § 2252(a)(4) (punishing knowing possession of visual depictions of minors engaged in sexually explicit conduct) and found that California Penal Code § 311.11(a) was an offense described by the federal statute. The Board did not address, however, the fact that the California law is seemingly broader than the federal offense. The California statute explicitly penalizes simulated sexual conduct, but the federal statute does not. Unless case law has interpreted these statutes to mean essentially the same thing, there is not a categorical match between them.

Absent a categorical match, the Board should have determined whether the modified categorical approach could be used to determine if the record of conviction established a conviction that matched the federal definition. The Board did not do that analysis since it appeared to view the offense as a categorical aggravated felony. This is a potential basis for challenge.

The Board also reviewed the nature of the crime and individual circumstances of the offense and found that it was a particularly serious crime that barred withholding of removal. It agreed that possession of child pornography was a less serious offense than producing or distributing it, but nonetheless found it to be a very serious offense. The Board found that persons who downloaded the material created a demand for its production. It also noted the continuing harm to the child victims that occurs every time someone downloads it. The Board also considered the circumstances of the respondent's offense and placed particular emphasis on the fact that the respondent made multiple downloads of the material.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3736.pdf.

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Yours truly attended the en banc oral argument today in Young v. Holder. Two judges led the questioning, Chief Judge Kozinski and Judge Kleinfeld. Judge Kozinski's questions suggested agreement with the government's argument that a plea to a charging document that alleges commission of an offense in the conjunctive (e.g., transportation, offer to sell, and sale) establishes admission to violating the crime in all of the various alleged ways of committing the offense.

Judge Kleinfeld (a former criminal defense attorney) repeatedly cited the historical practice of charging in the conjunctive and proving or pleading in the disjunctive. In other words, he recognized that prosecutors charge all of the various ways of committing an offense under the statute even where the defendant only committed it in one way. He thus strongly suggested that a plea to a complaint in the conjunctive established a plea to only one of the offenses.

On the other hand, questions by Judge Kleinfeld and other judges indicated that they might overrule the decision in Sandoval Lua. Sandoval Lua held that an inconclusive record of conviction was sufficient to establish eligibility for relief from removal. Thus, where a defendant is convicted of an offense that could be an aggravated felony or could not be an aggravated felony, Sandoval Lua had held that an ambiguous record was sufficient to avoid ineligibility for cancellation of removal (which is not available for persons convicted of aggravated felonies).

I had predicted the possibility of Sandoval Lua being overruled in a previous blog post, but certainly hope that I am not proved right. The loss of Sandoval Lua is a troubling possibility, since it is not always possible to obtain crystal clear records of conviction--particularly for convictions from years or even decades in the past.

Watch the oral argument at http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006171

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The Ninth Circuit overruled its previous precedent in United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004), and held that a California abstract of judgment may be used to establish whether a respondent in removal proceedings has been convicted of first or second degree burglary. It relied on the en banc decision in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008), which had held that a California minute order could be used for the same purpose. The court found that an abstract of judgment are contemporaneously prepared judicial record of the plea and sentence based on language from a California Supreme Court case. As a contemporaneous record that the defendant could review and challenge, it held it was within the reviewable record of conviction.

The abstract may be contemporaneously prepared in some cases, but often it is prepared months after the plea in cases where sentencing does not occur immediately. Nor is it really a record of the basis for the plea, but rather is primarily a sentencing document. It therefore is not comparable to a minute order from a change of plea hearing.

The more surprising holding of Kwong, however, was that California first degree burglary is a crime of violence under 18 USC 16(b) as a felony that involves a substantial risk that violent physical force will be used against the person or property of another in committing it. Although prior Ninth Circuit precedent held the same, I say surprising because the recent en banc decision in Aguila Montes de Oca v. Holder recognized that California burglary does not necessarily require a trespassory entry. It recognized that it would include a fireman called to a burning building who enters to fight the fire and also to misappropriate valuables inside or a servant who enters with his master's home with the intent to steal the silver. These types entries are not trespassory and thus are not the types of situations where there is no substantial risk that the offender will use violent physical force to commit the crime.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/12/07/04-72167.pdf

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In a decision with rather shoddy reasoning, in this blogger's opinion, the panel held that the noncitizen was barred from withholding of removal under INA 241(b)(3) for conviction of a particularly serious crime.

The offered justification for concluding that the respondent's residential burglary conviction(s) (one, or all three collectively, the opinion does not say) is a particularly serious crime is that California residential burglary is a crime of violence under 18 USC 16(b). As a crime of violence with a sentence to a year or more, a crime would be an aggravated felony, but that does not automatically equate to a particularly serious crime, as the panel acknowledges. Rather, the panel seems to simply equate a crime of violence with a particularly serious crime. It did not cite any authority for this conclusion and this blogger is not aware of any. It did not even discuss this premise in any detail, suggesting that it was an oversight.

The panel held that "residential burglary under California Penal Code § 459 constitutes a crime of violence because it is a felony '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 U.S.C. § 16(b)." This is contrary to the reasoning of a recent en banc Ninth Circuit.

The Ninth Circuit in Aguila Montes de Oca recognized that California's burglary statute penalizes entry into a residence with intent to commit theft or any felony even if the entry is licensed or privileged or even at the owner's personal invitation. See People v. Frye, 959 P.2d 183 (Cal. 1998), overruled on other grounds by People v. Doolin, 198 P.3d 11 (Cal. 2009). For example, a servant who enters his master's house with the intent to appropriate the family silver while at work commits a residential burglary under California law. Likewise the firefighter who enters a burning building with the intent to appropriate valuables while fighting a fire. Thus, the Ninth Circuit held that California burglary is not categorically a burglary under the generic federal definition, which requires an unlawful or unprivileged entry.

Whether a California burglary meets the generic federal definition is admittedly a different question than whether the crime involves a substantial risk that (violent) physical force will be used in the course of committing the crime. And the Lopez-Cardona panel distinguished Aguila on this basis. However, the servant and firefighter examples of licensed or privileged entries are precisely the types of situations where a California burglary would not by its nature involve a substantial risk of the use of physical force being used in the course of the crime. Another example, courtesy of the ILRC, shows it even more clearly: a person commits a California burglary when he enters a home at the owner's invitation with the intent to fraudulently sell worthless life insurance. That type of theft or felony does not carry an inherent risk of violent physical force being used in the course of the crime. So, it is not categorically a crime of violence (although that still might be established under the modified categorical approach, particularly post-Aguila).

Finally, the decision notably failed to even cite the Ninth Circuit's recent tour-de-force decision by another panel on the particularly serious crime bar to withholding--Delgado v. Holder. Just another indication that this decision was not carefully vetted.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/18/09-71661.pdf

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The Board of Immigration Appeals determined that a New York attempted arson offense was an aggravated felony under INA 101(a)(43)(E) as an offense described in 18 U.S.C. § 844(i). It found the New York statute's lack of the federal jurisdictional element of interstate commerce was not significant.

The Board reached this conclusion because the aggravated felony definition has a clause that provides, “the crimes specified are aggravated felonies regardless of whether they fall within the jurisdiction of the federal government, a state, or, in certain cases, a foreign country.” Since virtually all state (and foreign) crimes lack a federal jurisdictional element, a contrary conclusion would render this clause meaningless.

The Board also noted a provision for the early removal of nonviolent offenders that included an exception for offenders in state custody for this particular aggravated felony, which likewise would be superfluous if section 101(a)(43)(E) did not cover state offenses.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3730.pdf.

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The Ninth Circuit ordered rehearing en banc in this case. The panel's decision, 634 F.3d 1014 (9th Cir. 2011), had two primary holdings. Both were very important for noncitizens in removal proceedings with possible aggravated felony convictions, so the decision to take the case en banc raises concern. The court specifically directed briefing for rehearing en banc on the issue of whether an unqualified plea to an offense charged in the conjunctive (as is typical in California) admits violation of each of the charged offenses.

The government argued that such a plea would admit violation of every part of the statute--even if it would be ridiculous or physically impossible.  For example, if the prosecutor charges in the conjunctive a violation of California Penal Code section 12020(a)(1) in its entirety, and the a defendant haplessly enters a plea to the complaint, the government argues he would be admitting ALL of the following:

Manufacturing  and causing to be manufactured, importing into the state, keeping for sale, offering and exposing for sale,  giving, lending, and possessing any cane gun and wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains and consists of any fléchette dart, any bullet containing and carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade and metal replica handgrenade, and any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, and sandbag

In other words, someone who in fact only possessed a nunchaku would be deemed to also be admitting to manufacture, import, sale, etc. of dozens of other weapons under the government's theory. It argued this was compelled by the notoriously ambiguous decision in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc), which had mentioned in passing that a plea to a conjunctively charged complaint admitted three different violations.

The petitioner argued that the complaint in Snellenberger had been narrowed to three specific offenses out of a total of twenty-two possible covered by the statute. He argued this narrowing of the charges made an unqualified plea to the complaint different from a plea to a complaint that charges the entire statute.

The panel decision in Young also contains a favorable holding based on Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir. 2007).  It held an inconclusive record of conviction carries a respondent's burden to establish that he or she does not have an aggravated felony that would bar cancellation of removal where one or more of the potential theories for conviction was not an aggravated felony. Since rehearing en banc permits review of all issues in a case, this may be revisited as well.

We'll see what the Ninth Circuit decides.  Oral argument has been rescheduled to the week of December 12, 2011.

Read the briefs at http://www.ca9.uscourts.gov/datastore/uploads/enbanc/07-70949pfr.pdf

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The panel withdrew its published opinion in Aguilar-Turcios v. Holder, 582 F.3d 1093 (9th Cir. 2009) based on the en banc decision in Aguila Montes de Oca (see my Aguila post) and directed more briefing. This case presents a clear example of the change that Aguila will effect.

In this case, a marine was court martialed for disobeying a general order, which in this case prohibited the use of government computers to access pornography (legal or illegal). The prosecution alleged some of the pornography accessed (6 pictures) involved minors. He pled guilty to accessing pornographic websites. At some point, he also admitted that six of the pictures involved persons under 18, although it is not clear from the earlier panel decision whether he did this in his plea or in the removal proceedings. The government sought to remove him for conviction of an aggravated felony for conviction of a child pornography offense (8 U.S.C. § 1101(a)(43)(I)).

The original panel decision, over Judge Bybee's dissent, found that the modified categorical approach could not conform the conviction to the immigration aggravated felony definition for conviction of a child pornography offense because the offense never requires that the images involve minors--it only requires that the images amount to pornography (including of adults). In other words, it was missing an element of the generic aggravated felony offense. Aguila rejected the missing element rule and likely will compel a different result in this case (but feel free to disagree by posting a comment below!).

Read the order at http://www.ca9.uscourts.gov/datastore/opinions/2011/08/29/06-73451.pdf

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In another brilliant decision by Judge Berzon, the Ninth Circuit rejected the BIA's determination that California second-degree commercial burglary is an attempted theft offense that qualifies as an aggravated felony with a sentence to a year or more. It also held that the offense is not a crime involving moral turpitude (CIMT) either.

AGGRAVATED FELONY

The BIA had held that entering a building with the intent to commit theft amounted to an overt act that constituted a substantial step toward completion of the theft. The Ninth Circuit disagreed, primarily because the building the petitioner entered was a business open to the public.Mere preparation to commit a crime does not constitute attempt. The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. A suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrate that the crime will take place unlessinterrupted by independent circumstances.

The Ninth Circuit held that, for example, breaking into a locked vehicle amounted to a substantial step toward the completed offense of theft, since it is the type of conduct that strongly corroborates the criminal purpose to commit theft. On the other hand, simply walking into a store open for business does not. Most people who walk into a store do not commit theft, so it is not the type of act that is substantial enough for attempt.

CRIME INVOLVING MORAL TURPITUDE

The Ninth Circuit also determined that commercial burglary is not a CIMT. It first determined that it owed no deference to the BIA's holding on this point, since it was unpublished and not persuasive because the brief analysis either misapprehended the elements of California burglary or Ninth Circuit precedent. Namely, the BIA appeared to equate commercial burglary with residential burglary.

The Ninth then determined that commercial burglary was not equivalent to traditional CIMT's. It is not equivalent to theft because it does not involve a taking or deprivation, and it is not an attempted theft offense as discussed above. Nor does it involve fraud, since there is nothing explicitly or implicitly fraudulent about walking into a store.

Nor is entering a commercial building open to the public with the intent to commit theft a crime that is so depraved or reprehensible that it otherwise amounts to a CIMT. "To hold otherwise would mean that someone who did what Hernandez Cruz admitted doing—walking into a commercial building with the intent to commit larceny—but then changed his mind and walked out without ever committing any crime, would be guilty of a CIMT." "If it did, the phrase 'moral turpitude' would be devoid of all meaning."Of course, BIA precedent has gone a long way toward sapping the meaning from moral turpitude.

Read decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/08-73805.pdf

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