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

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

PC 417.26 provides,

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

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

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

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

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

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

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

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

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Attorney General Holder vacated Attorney General Mukasey's 2008 decision to authorize an unprecedented factual inquiry to determine whether a conviction involved moral turpitude.  In doing so, he recognized that five circuit courts of appeal had rejected the reasoning of that decision (while two had deferred to it). He also recognized the Supreme Court has repeatedly emphasized that convictions must be judged by their legal elements, not the alleged facts that led to them.

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The Board held that a conviction for recklessly engaging in deadly conduct in violation of section 22.05(a) of the Texas Penal Code is categorically a crime involving moral turpitude.  Section 22.05(a) provides, "A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury."  Recklessness for this purpose means the offender is "aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”  The Board held that this conscious disregard to a substantial and unjustifiable risk of serious bodily injury to another always involves a base act that constitutes a crime involving moral turpitude.  It found the offense indistinguishable from the reckless endangerment offense in Matter of Leal, 26 I&N Dec. 20 (BIA 2012), which held that “recklessly endangering another person with a substantial risk of imminent death” is always a crime involving moral turpitude.

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Rejecting the BIA's approach in E.E. Hernandez, the Ninth Circuit held that a gang enhancement under California Penal Code section 186.22(b)(1) does not transform a conviction into a crime involving moral turpitude if the offense was not one already.

Here, Hernandez-Gonzalez was convicted of possessing a billy club, which generally would not involve moral turpitude because the offense does not involve threatening or hurting anyone, but rather mere possession.  The Board found, in an unpublished decision, that the gang enhancement made Hernandez-Gonzalez's offense a crime involving moral turpitude.  This is consistent with the Board's later published decision in E.E. Hernandez. E.E. Hernandez reasoned that the specific intent to promote street gang activity , which is required for a PC 186.22 enhancement, is always morally turpitudinous because street gang activity is morally turpitudinous.

The Ninth Circuit, however, found that California law permits a gang enhancement where the only street gang activity being promoted is the underlying crime itself, which need not involve moral turpitude.  The Ninth Circuit pointed to California court decisions applying the gang enhancement to weapons offenses where the weapons were discovered during probation or other searches, such as during traffic stops, that did not involve any actual use of the weapon.  The Ninth Circuit held that weapons possession in such circumstances is not a morally turpitudinous.  It is criminal, but it does not involve the type of evil intent required for a crime involving moral turpitude.

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The Board of Immigration Appeals held that malicious vandalism in violation of California Penal Code section 594(a) was categorically a crime involving moral turpitude where it is accompanied by a finding that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, a sentencing enhancement under PC 186.22(d).

First, the Board found that the immigration judge had erred by analyzing the vandalism and the enhancement separately.  Rather, the Board held that they must be considered together as a single offense.  The enhancement requires a specific intent to promote criminal activity by a street gang, so that means an act of malicious vandalism with the enhancement must be done with the specific intent to promote that activity.  What activity?  The Board cited "turf wars and gang violence."  The Board found that gang vandalism promoted that activity.

I would argue, though, that vandalism with a gang enhancement is not a CIMT under the categorical approach if there is a realistic probability that a defendant might be convicted of it for conduct that does not promote turf wars or gang violence.  The Board seems to assume that the only vandalism that comes within the statute is gang graffiti, which obviously stakes out territory and could lead to confrontations.

I would be interested to know if any of my readers could think of a scenario where a person could be convicted of vandalism with a gang enhancement (for the benefit of a gang and to promote criminal activity by the gang) that is not necessarily turpitudinous.  If so, is there a realistic probability of it being prosecuted?  Submit a comment below if you can.

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The Ninth Circuit upheld a Board of Immigration Appeals decision that a conviction for misuse of a passport to facilitate an act of international terrorism in violation of 18 U.S.C. §§ 1544, 2331, is a categorical crime involving moral turpitude.

The conviction resulted from the petitioner's involvement in efforts to overthrow the communist government of Vietnam, specifically an apprehension in the Philippines as he allegedly was assembling explosive devises for use against the Vietnamese Embassy in Manila.

First, the court held that because section 2331 (intent to facilitate an act of international terrorism) increases the statutory maximum penalty for simple misuse of a passport under section 1544, it is an element of the offense and is to be considered under the categorical analysis of a conviction.

Second, the court agreed with the BIA that intent to facilitate international terrorism is categorically turpitudinous, since it necessarily involves an intent to harm someone and a protected class of victim.  In this case, the court found that the protected class of victim could be either a vulnerable civilian population or a lawful government.  The court's analysis on this point, however, seems thin.  Typically, a protected class of victim would be something like a child, spouse, or elderly person.  Does the government of a country really fit that definition?  It is particularly incongruous here, since the opinion acknowledges the despicable actions of the Government of Vietnam in addressing the petitioner's Convention Against Torture claim.  Also, defining an entire civilian population as a protected class of victim seems broad too.  Doubtless, though, the classification of the offense as "terrorism" compelled the court decide that it necessarily involved moral turpitude.  The opinion would have been sounder if it had dropped "protected class of victim" as a basis for the decision and instead focused on the intended harm required by the statute.

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In yet another positive development in the State of California, the maximum potential sentence to imprisonment for misdemeanors is now 364 days. It accomplishes this by adding section 18.5 to the Penal Code, which provides:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.

Governor Brown signed the bill, SB 1310, on July 21, 2014. Since the text of the bill does not specify otherwise, criminal defense attorneys should assume that the change does not go into effect until January 1, 2015.  Until then, attorneys should pursue other strategies to protect their clients.

There are three major benefits for non-citizens convicted of a misdemeanor that carries a 364 day maximum potential sentence.  First, the conviction could not meet the federal definition of an aggravated felony based on a 365 day sentence to imprisonment (be careful, though, because some aggravated felonies do not require any sentence to imprisonment).

Second, a California misdemeanor conviction would no longer make an immigrant deportable for conviction of a single crime involving moral turpitude (CIMT) committed within 5 years of admission, since that ground of deportability only applies if the conviction carries a maximum potential sentence to imprisonment of one year or more.

Third, a single misdemeanor CIMT conviction that results in a sentence to imprisonment of 6 months or less would no longer automatically disqualify a non-permanent resident from cancellation of removal.  Cancellation of removal is discretionary relief from removal based on continuous physical presence of 10 or more years and exceptional and extremely unusual hardship to a citizen or permanent resident family member.

The Ninth Circuit, sitting en banc, overruled its erroneous precedent on the maximum potential sentence to imprisonment for California misdemeanors and its precedent that California Penal Code (CPC) section 245 (assault with a deadly weapon) is a categorical crime involving moral turpitude. It also found unpersuasive a Board decision from 1947 that held a CPC 245 conviction involved moral turpitude, since that decision did not apply the categorical analysis. The court remanded to the Board to determine in the first instance whether CPC 245 is a crime involving moral turpitude (CIMT). It further urged the Board to issue a publish decision promptly.

I, for one, am not optimistic the Board will quickly provide a published decision. A prompt answer certainly is important, since CPC 245 is a very common conviction and immigrants should be able to know whether it is a CIMT before deciding to give up their constitutional rights by entering a guilty plea to it. As the Ninth Circuit recognized, though, the question is a difficult one. On one hand, the element of a deadly weapon (a firearm in subsection (a)(2)) makes the offense more serious. However, assault does not require actual injury or even physical contact. Further, the court noted assault is a general intent crime that does not require an intent to injure or a conscious disregard of an unreasonable risk of injury (or, more precisely, it does not require an intent to create an apprehension of a completed battery or a conscious disregard of an unreasonable risk of creating an apprehension of a completed battery). So, I think the Board will struggle with this, which would be unfortunate.

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The Ninth Circuit held that felony false imprisonment in violation of California Penal Code section 236/237 is not categorically a crime involving moral turpitude. This conclusion was virtually a foregone conclusion given the Ninth Circuit previously had found the more serious offense of simple kidnapping in violation of California Penal Code section 207(a) did not categorically involve moral turpitude.

The court noted the California appellate courts had upheld felony false imprisonment convictions under a "menace" theory in circumstances that did not fit the federal definition of moral turpitude. See People v. Islas, 147 Cal. Rptr. 3d 872, 875–82 (Ct. App. 2012) (two gang members convicted of false imprisonment by menace after hiding from police for about 15 minutes in an apartment rented by a mother and her children; conviction upheld even though the defendants did not brandish a weapon, did not act in a hostile manner, did not touch the woman or her family, did not issue any verbal threats, and, in fact, expressly told her that “they were not going to harm her or her children”).

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