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Category: Deportability / Inadmissibility Grounds

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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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The Ninth Circuit upheld a finding of deportability for conviction of an offense relating to a substance prohibited by the federal Controlled Substances Act because circumstantial evidence established that a document in the record was the factual basis for the plea and that factual basis established the conviction involved methamphetamine.  In the underlying criminal case, Juarez-Alvarado pleaded guilty to Arizona Revised Statute § 13-3407(A)(1), but not as originally charged in the indictment returned against him.  He pleaded to count 1 as modified.  The Ninth Circuit therefore held that the government could not establish he was deportable by relying on the original indictment.  However, the government also presented a document from the court record (lacking a title or date) that purportedly was the factual basis incorporated into the plea.  Juarez-Alvarado disputed that it was.  The court considered the circumstantial evidence in the record (of page numbering, location of certification stamps, etc.) and found that the document indeed was the "attached description of the statutory elements and factual basis" referenced by the guilty plea.  Since that document indicated the conviction was for possession of methamphetamine, the court found it established deportability.

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The Ninth Circuit reversed a conviction for illegal reentry after removal because the defendant received ineffective assistance of counsel in the removal proceedings.  The counsel had conceded removability for conviction of a drug trafficking aggravated felony where the immigrant had a Missouri conviction for possession of marijuana with intent to deliver.  As in Moncrieffe, the conviction (Missouri Revised Statutes § 195.211) encompassed distribution of a small amount of marijuana for no remuneration, which would not be a felony under the federal Controlled Substance Act and thus not an aggravated felony as the state equivalent of a felony conviction under the Controlled Substance Act.  Moncrieffe had not been decided at the time of the attorney's concession, but a circuit split did exist at the time and the Seventh Circuit (in which the removal proceedings occurred) had not ruled on the issue at the time.

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The Board of Immigration Appeals applied the Supreme Court's decisions in Descamps and Moncrieffe to find that the respondent's felony conviction under section 76-10-508.1 of the Utah Code for discharge of a firearm was not an aggravated felony crime of violence, but was a deportable firearms offense.

Section 76-10-508.1(1) has three subsections and it was not clear which the respondent was convicted of.  The first, subsection (a), penalizes one who "discharges a firearm in the direction of any person or persons,  knowing or having reason to believe that any person may be endangered by the discharge of the firearm."  This does not require any particular mental state by the person who discharges the firearm, which means under the Utah Code that it may be done with intent, knowledge, or recklessness.

The Supreme Court held in Leocal that the mental state of recklessness does not satisfy the federal definition of a crime of violence, so the Board held that a violation of section 76-10-508.1(1)(a) is not necessarily an aggravated felony crime of violence.   Further, the Board held it could not find the respondent was convicted of an aggravated felony under the modified categorical approach.  It determined it could not use the modified categorical approach because the mental states for subsection (a) (intentionally, knowingly, or recklessly) are not divisible because they are not elements of the offense that a jury must unanimously agree upon.  In other words, a jury returning a guilty verdict could do so where some members of the jury believe the defendant acted intentionally, while others believe he acted recklessly.  Since the offense does not necessarily constitute a crime of violence and it is not divisible, no conviction for section 76-10-508.1(1)(a) would be an aggravated felony crime of violence.

The Board nonetheless found that Chairez-Castrejon was convicted of a firearms offense because it rejected his argument on the antique firearm exception.  The federal definition of a firearm excludes certain antique firearms, while the respondent argued that Utah law did not.  The Board noted that there was no specific exception for antique firearms under Utah law, but also found that the respondent had not shown Utah actually prosecutes offenses involving antique firearms.  In Moncrieffe, the Supreme Court held that an alien who invokes this “antique firearm” argument in order to defeat an aggravated felony charge “would have to demonstrate
that the State actually prosecutes the relevant offense in cases involving antique firearms.”  The respondent apparently could not show that here (California, on the other hand, does prosecute cases involving antique firearms).  The Board therefore found Chairez-Castrejon deportable, although it remanded for consideration of his cancellation of removal claim because it found his conviction was not an aggravated felony.

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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.

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In this illegal reentry decision, the Ninth Circuit held that firearms convictions under state statues that encompass both "antique" and non-antique firearms do not satisfy the federal ground of deportability for conviction of a firearms offense. The defendant here had been removed for conviction under such a statute, so the court found the removal order invalid and reversed the conviction.

The federal definition referenced by the firearms ground of deportability explicitly excludes antique firearms, while former section 12021(c)(1) of the California Penal Code, does not. In other words, there is no complete match between the two definitions and a conviction for the California offense should not categorically trigger deportability. The Ninth Circuit previously had resisted this logic, primarily because the antique firearms exception is an affirmative defense in a federal prosecution. In Moncrieffe, the Supreme Court found, albeit in dicta, that whether it is an affirmative defense or not does not matter. What matters is the congruence between the definitions. An offense meets a federal definition only if all of the conduct penalized by it meets the definition, including the least culpable conduct that there is a "realistic probability" of the state prosecuting. Aguilar-Rios cited cases showing California regularly prosecuted offenses involving antique firearms under PC 12021(c)(1), so the least culpable conduct for a conviction clearly did not meet the federal firearms definition.

Moreover, as in the marijuana statute at issue in Moncrieffe, former California PC 12021(c)(1) was not divisible into alternative, separately defined offenses involving antique or not-antique firearms. Thus, the court held it could not examine the record of conviction to try to determine whether Aguilera-Rios's offense actually involved an antique firearm.

Although this decision concerned a firearms statute that existed before the Deadly Weapons Recodification Act of 2010 went into effect on January 1, 2012, it should apply equally to offenses under the reorganized statute that do not distinguish between antique and non-antique firearms. This would include current sections 25400(a), 27500, 29800, and 33215 of the Penal code, according to the ILRC.

Finally, I should point out that the panel's decision confusingly states Aguilera-Rios's "conviction is not a categorical match for the federal aggravated felony" definition. This apparently is an error, since the recited facts indicate Aguilera-Rios was only found deportable for conviction of a firearms offense, 8 U.S.C. 1227(a)(2)(C), not a firearms aggravated felony. This error is not significant, though, since both reference the same federal definition of a firearm.

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In this illegal reentry case, a Ninth Circuit panel held that battery on a peace officer that causes injury in violation of California Penal Code (CPC) section 242/243(c)(2) is categorically a crime of violence under the sentencing equivalent of the definition at 18 U.S.C. 16(a) (effectively tripling the prison exposure).  It found CPC 243(c)(2) requires as an element the willful use of force against the person of another sufficient to cause injury.  It notes a California Court of Appeal decision that equates willful with intentional and thus concludes that a battery willfully inflicted that causes injury is a crime of violence.

Seems reasonable at first glance, except the court glosses over a lot in a way one wouldn't expect for a published decision.  First, the willfulness that the court makes a big deal about is located in the definitional statute at 242.  That willfulness is just the general intent to effect a simple battery.  A simple battery can include any form of unlawful touching--even a push that causes no injury.  And the Ninth Circuit has previously held that a simple battery with that type of intent is not a crime of violence.  Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (simple battery against a domestic victim is not a crime of violence for purposes of the domestic violence ground of deportability).

It is the resulting injury that triggers the enhanced sentence at 243(c)(2), and the injury need not be intentional.  Thus, pushing a peace officer would be punishable under CPC 243(b) (misdemeanor) if it causes no injury, while the same push with the same level of force would be punishable under CPC 243(c)(2) (felony or misdemeanor) if it causes the cop to trip over something and he needs an ice pack (we are not talking great bodily injury, or GBI, here).  Either way, it does not matter what the defendant intended because there is no element of specific intent to cause injury, just the general intent to complete the contact.

This is why the court's reliance on United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) is way off base.  Laurico-Yeno concerned CPC 273.5, which penalizes a person who "willfully inflicts upon [a protected domestic victim] corporal injury resulting in a traumatic condition." There, unlike CPC 242/243(c)(2), the injury is willfully inflicted.

It gets worse, though.  The California Court of Appeals opinion that the panel cites for support actually undermines its position.  The discussion of willfulness in People v. Lewis, 15 Cal. Rptr. 3d 891, 901 (CA 4 2004) first notes, "Usually the word "willfully" defines a general intent crime unless the statutory language requires an intent to do some further act or achieve some future consequence."  Therefore, "When the structure of a section requires a willful act followed by some particular result, then it is reasonable to read the willful, i.e., intentional, element as referring only to the initial act and not to the ultimate result. In such sections the word "willfully" does not require the defendant intend the ultimate result, only that he or she intended the initial act." That is precisely why a simple battery that results in injury (that need not be intended) does not comport with the Supreme Court's holding in Leocal that a crime of violence must actually be violent.

Let's hope there is a request for en banc rehearing to reconcile this case with Ortega-Mendez and with the spirit of the Supreme Court's recent decisions.

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The Ninth Circuit held that aggravated assault in violation of Arizona Revised Statute 13-1203 is not categorically a crime of violence pursuant to 18 U.S.C. 16(a) because it encompasses reckless conduct in addition to knowing or intentional conduct.  A mens rea of mere recklessness is not enough--the Ninth Circuit has held that at least extreme recklessness is required.  Applying the modified categorical analysis, however, the court found  the defendant pleaded guilty to charges that alleged only intentionally placing the victim in reasonable apprehension of imminent physical injury.  It thus was a crime of violence.

Since the defendant received a 12 month sentence for this crime of violence conviction, the court held it was an aggravated felony. This aggravated felony conviction precluded voluntary departure in the removal proceedings that followed, so the defendant was not prejudiced when the immigration judge did not advise him about voluntary departure.  The court therefore found he could not collaterally attack the removal order and upheld his conviction for a subsequent attempted illegal reentry with a sentence of 70 months.

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The Ninth Circuit held that the petitioner's conviction for “Attempted Promoting a Dangerous Drug in the First Degree,” in violation of Haw. Rev. Stat. §§ 705-500(1)(b), 712-1241(1)(b)(ii), was not categorically a deportable controlled substance offense. It reached this conclusion because the relevant Hawaii controlled substance schedules include two substances, benzylfentanyl and thenylfentanyl, that are not currently listed in the federal Controlled Substances Act.

Although not a categorical controlled substance offense, the court applied the modified categorical analysis because it found the offense divisible pursuant to Coronado v. Holder. The record of conviction did not identify the substance, though, so the government could not meet its burden of proof.

The court thus found Ragasa was not deportable as charged. That was a good thing, since it rejected his claim to citizenship based on adoption by two naturalized citizens in 1980.

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In this criminal prosecution for illegal entry after removal, the Ninth Circuit held that an Arizona conviction for attempted sexual contact with a minor under the age of 15, in violation of ARS 13-1405B, does not meet the federal generic definition of sexual abuse of a minor. It therefore remanded for re-sentencing. It also held, though, that the defendant could not establish prejudice resulted from a violation of his due process rights in the stipulated removal proceedings that preceded his removal because at the time the offense was considered an aggravated felony for sexual abuse of a minor in the Ninth Circuit. It just goes to show how quickly the law can change.

ARS 13-1405B has three elements: (1) a mens rea of “intentionally or knowingly”; (2) an act of “engaging in sexual intercourse or oral sexual contact”; and (3) a victim “who is under fifteen years of age.” The court found this did not meet either of the alternative federal generic definitions of sexual abuse of a minor. First, it is not sexual abuse of a minor as statutory rape because Arizona law, unlike federal law, does not require an age difference of 4 years. Second, ARS 13-1405B does not meet the alternative generic definition of sexual abuse of a minor, which requires that: (1) “the conduct proscribed . . . is sexual;” (2) “the statute protects a minor;” and (3) “the statute requires abuse.” Ninth Circuit precedent presumes that sexual contact with a minor under the age of 14 is inherently abusive, but ARS 13-1405B covers both 14 year-olds and those younger than 14. The panel declined to extend that inherent abusiveness presumption to 14 year-olds. Nor did it find any other element of abuse in this offense, since it involves consensual sex.

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