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Category: Deportability / Inadmissibility Grounds

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Today, July 14, 2011, is a dark day for immigration law in the Ninth Circuit. The en banc court overruled Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and held that state rehabilitative relief for a single conviction for possession of a controlled substance does not protect against immigration consequences. Attorneys who watched the brutal oral argument in this case (the video is available on the court's website) anticipated this outcome, but at least it came with a small consolation prize.

The Ninth Circuit held that its decision in Nunez-Reyes would have only prospective effect, citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) as authority for prospective application. Since the decision applies prospectively, Lujan-Armendariz continues to protect noncitizens "convicted" of simple possession before Nunez-Reyes's publication date of July 14, 2011. For noncitizens convicted after that date, Lujan-Armendariz is overruled. (The Court did not address whether noncitizens convicted "on" the publication date would continue to benefit from Lujan.)

Significantly, the language of Nunez-Reyes strongly supports the idea that the critical fact is whether the noncitizen pled guilty or no contest before the publication date. Persons who pled before today gave up their constitutional rights (to trial by jury, to confront witnesses, etc.) in reliance on Lujan-Armendariz, so they should not be "hoodwinked" into being deported for doing so. Whether they actually completed the requirements for rehabilitative relief before today, however, would seem to be irrelevant. Thus, expungements and other rehabilitative relief obtained after today should still be effective, so long as the plea occurred before today. The court did not explicitly say this, but the reasoning implies it.

Nunez-Reyes also overruled the court's recent decision in Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), and held that state rehabilitative relief did not protect against immigration consequences for a conviction of being under the influence of a controlled substance. Unlike Lujan, though, the court overruled Rice retroactively because it was such a recent decision that there was less reliance on it. It also distinguished being under the influence from possession, holding that the former was not a lesser offense (even though in California the former is a misdemeanor and the latter can be a felony). The court reasoned that dangerous behavior might accompany being under the influence of methamphetamine, but would not necessarily accompany simple possession. In short, though, rehabilitative relief does not protect against removal for being under the influence of a controlled substance, even if the plea occurred before today.

Nunez-Reyes does suggest, though, that possession of paraphernalia IS a lesser offense to possession (at least where the defendant pleads down from possession to paraphernalia). So, noncitizens would continue to benefit from Lujan if the paraphernalia plea occurred before today.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf

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The Board held that recklessness is a sufficiently culpable level of scienter for a crime to involve moral turpitude, at least where it involves an intentional act done with unreasonable disregard of risk to life or property. In this case, the offense was driving a vehicle in a manner indicating a wanton or willful (i.e., reckless) disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of section 46.61.024 of the Revised Code of Washington (1997). The Board rejected the respondent's argument that reckless disregard of the danger to property would not involve moral turpitude and held that the offense categorically was a CMT.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3720.pdf

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"Clarifying" its previous opinion in Cheuk Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010), the Ninth Circuit held that a noncitizen's admissions in removal proceedings could establish the link between the offense alleged in a charging document and an abstract of judgment for purposes of determining whether the conviction was for a removable offense.

S-Yong had held that admissions alone were not sufficient to meet the government's burden of proving removability (the record did not contain any conviction documents in that case). The government in Pagayon, however, did present a charging document alleging possession of methamphetamine and an abstract of judgment that indicated conviction of Health and Safety Code sec. 11377(a) for possession of an unspecified drug.

The Ninth Circuit held that Pagayon's response that possession of methamphetamine was his conviction met the government's burden of establishing that the conviction was for a deportable controlled substance offense. (Not all drug convictions involve substances that trigger deportability under federal law.)

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/24/07-74047.pdf

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The Ninth Circuit held here that a conviction for California Penal Code § 12025(a) categorically qualifies as a deportable firearms offense under INA 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

Section 12025(a) penalizes offenses related to carrying a concealed firearm upon the person or in a vehicle or causing a weapon to be concealed in a vehicle. The state courts have interpreted this broadly, holding, “[I]t is theoretically possible for a person to cause to be concealed a firearm that is not in his or her possession, custody, or control, such as by conduct that conceals from view a firearm that is in the possession and control of another person.” People v. Padilla, 98 Cal. App. 4th 127, 138 (2002).

The Ninth Circuit held that even this constructive possession, however, amounted to unlawful "possession" of a firearm for purposes of the grounds of deportability. The court noted the laundry list of offenses covered by the firearms deportability statute and opined that it evidenced a congressional intent to construe possession broadly. Judge Rymer dissented from this holding.

The court also addressed the antique firearms exception to the deportability statute, since California law does not contain the same exception. It held that the antique firearms exception is an affirmative defense, which need not be considered under the categorical analysis--at least where the noncitizen does not assert that it applies.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-74371.pdf

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The Board held that a conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for telephoning a person protected by the order constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.

Section 237(a)(2)(E)(ii) provides that an alien admitted to the U.S. who violates "the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable."

The Board concluded that contacting the subject of a protection order by telephone made the respondent deportable even if the call did not involve threats or repeated harassment. It reasoned that the no-contact portion of a protection order (as opposed to portions concerning attending counseling or paying costs) involved protection from credible threats, repeated harassment, or bodily injury because a court would only issue it if there had been past abuse or threats and the no-contact order protects the victim from being victimized again.

In reaching that conclusion, the Board did not discuss the potential significance of the fact that the case involved a temporary protection order, which typically is issued before the court determines if credible threats of violence, repeated harassment, or bodily injury actually had occurred.  Indeed, the telephone call in this case occurred twenty days before the hearing on the restraining order.  The temporary restraining order thus apparently was based only on the woman's unproven allegations.

The Board's construction gives no effect to the statutory language that seems to require a determination that the threats, repeated harassment, or bodily injury had occurred and that any threats were credible.  A better construction would require, at least in the case of unproven ex parte temporary restraining orders, that the immigration judge actually find that the violation did involve such conduct.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3714.pdf.

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The Ninth Circuit remanded this case to the BIA to determine whether a conviction for failure to register as a sex offender in violation of California Penal Code section 290(g)(1) is a crime of moral turpitude.  The BIA in this case had held that it categorically was a CMT pursuant to its decision in Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007).

After its decision, however, the Ninth Circuit issued a contrary decision regarding the Nevada sex offender statute, finding that it was the underlying sex offense and not the failure to register that constituted a CMT.  See Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir.2008).

The Attorney General also issued a decision casting doubt on Tobar-Lobo. The AG's decision in Silva-Trevino held that an offense must have some level of scienter (criminal intent) to qualify as a CMT.  California penalizes failure to register even if it is due to mere forgetfulness, which is in tension with the requirement that a CMT have an element of intent (at least of recklessness, rather than mere negligence).

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/05/11/07-71988.pdf

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The Board held that immigration judges may NOT go beyond the record of conviction to determine whether a crime involves moral turpitude if the record of conviction conclusively establishes it did not.  This is an often overlooked corollary of the Attorney General's decision in Silva-Trevino.  (See my post at http://crimeandimmigrationlawyer.com/blog/2011/03/01/matter-of-samuel-esaul-guevara-alfaro/.)

In Ahortalejo-Guzman, the respondent was convicted of simple assault, and the criminal court specifically noted that the conviction did not involve family violence.  Simple assault is not a crime of moral turpitude.  The immigration judge, however, went beyond the conviction documents to consider police reports and testimony.  The police reports and testimony indicated the respondent committed a crime of domestic violence.  The IJ found that the domestic violence involved moral turpitude and denied the respondent relief from removal based on that.

The Board held the IJ erred.  It cited Silva-Trevino, which stated that an IJ could consider evidence outside the record of conviction only after determining that the record of conviction documents were ambiguous as to whether the offense involved moral turpitude. It noted that this sequential, hierarchical approach "serves the important function of recognizing and preserving the results of a plea bargain, where the parties, with the consent of a trial judge, agree to allow the defendant to plead to a less serious crime."

This case is a bit unusual, however, since the criminal court specifically found that the offense did not involve family violence.  It remains to be seen whether something this explicit is necessary, although it certainly should be considered a best practice in making a plea now.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3709.pdf.

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The court held that a felony violation of Revised Code of Washington section 9A.44.089 (sexual contact with a 14 or 15 year-old by a person at least 48 months older) constitutes a crime of child abuse within the meaning of the ground of deportability at INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).

The opinion telegraphed its outcome by gratuitously describing the offense as "child molestation." The elements of the offense described by the court, however, appear to permit conviction for consensual sexual activity between a 15 year-old and a 19 year-old.  Consensual sex with a 15 year-old may be unlawful, but it only became so in the U.S. over the last century.  It is hardly equivalent to the types of crimes one normally thinks of upon hearing the term "child molestation."

Moreover, little analysis accompanies the opinion.  The primary question is whether the offense amounts to "abuse."  The opinion answers the question simply by stating the conclusion: "Section 9A.44.089 makes illegal the act of touching the sexual or other intimate parts of the victim when the victim is either 14 or 15 years old and the perpetrator is at least forty eight months older. This conduct, at a minimum, constitutes maltreatment of a child and impairs the child’s mental wellbeing."  This is hardly obvious in the case of consensual sexual activity between a 15 year-old and a 19 year-old.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/31/09-72766.pdf

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The Board of Immigration Appeals held that the crime of moral turpitude ground of deportability, INA 237(a)(2)(A), encompasses a conviction for attempt if the attempt is to commit a crime that involves moral turpitude.  In this case, the respondent had a conviction for attempted grand theft.  The Board found that this conviction, along with another conviction for grand theft, made him deportable for having two convictions for crimes of moral turpitude after admission.

The Board rejected the respondent's argument that conviction for attempt to commit a crime of moral turpitude should not trigger deportability because INA 237(a)(2)(A) does not explicitly include attempt, while the ground of inadmissibility at INA 212(a)(2)(A)(i)(I) does include the inchoate offenses of attempt and conspiracy.

The Board noted a Ninth Circuit decision, Barragan-Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007), which concluded that this meant the deportation ground was broader (rather than narrower) than the inadmissibility ground.  The Ninth Circuit reasoned the listing of only two inchoate offenses in the inadmissibility ground narrowed the ground to exclude other inchoate offenses such as solicitation or facilitation, while the lack of any references to inchoate offenses in the deportability ground meant it was expansive enough to cover all inchoate crimes.

The Board cited, but did not quite adopt the Ninth Circuit's analysis (given it may have wished to leave room to find that the inadmissibility ground covers inchoate offenses other than attempt and conspiracy).  It offered its own justification for the listing of attempt and conspiracy in the inadmissibility ground but not the deportability ground: Congress may have been just trying to be clear that the former covered attempt and conspiracy without implying anything about the coverage of the latter, particularly since the Congress drafted them at different times.  This belt-and-suspenders-argument overlooks the fact that Congress presumably knows how it drafted other parts of the Act and strives for consistency in its language.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3706.pdf.

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The Board in Guevara-Alfaro returned to the same issues decided by former Attorney General Mukasey in Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

It first held that any intentional sexual contact between an adult and a child of less than 16 years of age involves moral turpitude if the adult knew or should have known the child was under 16. Thus, it held that a conviction under California Penal Code 261.5(d) (sexual intercourse between 21+ adult and minor under 16) may involve moral turpitude.

It acknowledged, however, that 261.5(d) did not categorically involve moral turpitude because the offense does not require that the perpetrator knew or reasonably should have known that the victim was less than 16 years of age.

In reaching this conclusion, the Board cited Brand-X to assert that the Ninth Circuit had to defer to this interpretation despite its decision in Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007).  It noted the Ninth Circuit ruled in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc) that the definition of a  crime of moral turpitude is quintessentially ambiguous, so the the court must defer to the Board's interpretation.

Quintero-Salazar had held that 261.5(d) would not involve moral turpitude if, for example, the relationship was between a high school junior of 15 years and 11 months and a college student of 21 years.  It noted that the conduct involved, consensual sex, would be legal if the two were married.  Marriages between 21 year-olds and 15 year-olds may not be as common as they once were in the U.S., but are legally possible in some states with parental consent.

Guevara Alfaro disagreed, holding that intentional sexual contact between a 15 year-old and a 21 year-old would involve moral turpitude, if the 21 year-old knew or reasonably should have known the victims age.  It did not explain how this could be a crime of moral turpitude if the two were legally married.

The Board next held it should use the process enunciated by Silva-Trevino to determine whether the offense actually involved moral turpitude (i.e., whether the perpetrator knew or reasonably should have known the victims age).  It held that since 261.5(d) did not categorically involve moral turpitude, it had to examine the record of conviction documents and, if the record of conviction is inconclusive, it had to review other probative evidence to determine if the offense involved moral turpitude.  This would include, in this case, the testimony of the respondent.

The important caveat that both Silva-Trevino and Guevara Alfaro included, but which immigration judges may overlook, is that they may proceed to the third step of examining other probative evidence only if the record of conviction documents are "inconclusive."  This should mean that an IJ may not look at other evidence if the record of conviction documents clearly show that the offense did not involve moral turpitude.  Thus, where state law permits such a conviction, a guilty plea that stipulates the defendant "did not know and had no reasonable basis for knowing the victim was under 16" should prevent inquiry by the IJ beyond the record of conviction.  The record of conviction in such a case would be conclusive.  Whether the Board actually adheres to this aspect of Silva-Trevino, however, remains to be seen.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3705.pdf.

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