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Category: Deportability / Inadmissibility Grounds

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The Ninth Circuit held that a conviction for California Penal Code section 288(c)(1) (lewd or lascivious act on child 14 or 15 years of age by a person at least 10 years older) is categorically a crime of violence under 18 USC 16(b), and thus is an aggravated felony with a sentence to one year or more.

Section 16(b) requires that the offense be a felony which “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.” Citing United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2012) and Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. 2012), the court held that there only need be a substantial risk of the use of force in an "ordinary" case prosecuted under the statute. An offense may be a categorical aggravated felony even where there is a possibility that the statute may be violated "at the margin" in a way that does not involve such a risk.

The court found that "in the ordinary case" of 288(c)(1) there is a substantial risk that the perpetrator will use physical force against the victim, since the victim may resist and the adult may use physical force to ensure compliance. The petitioner had argued the statute covered offenses where the victim consented to the conduct, but the court held that such a possibility at the margin was not enough to prevent it from being considered a crime of violence. The court also noted that PC 288(c)(1) requires an age difference of at least 10 years, which in its view made the use of physical force more likely than in consensual statutory rape (where the perpetrator need only be 18 years of age and the victim could be just one day shy of 18).

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The Ninth Circuit granted rehearing en banc and vacated the published decision in Ceron v. Holder, which had held that assault with a deadly weapon in violation of California Penal Code section 245(a)(1) is categorically a crime involving moral turpitude (CIMT). The panel had so held despite an en banc decision that had stated assault with a deadly weapon was not a CIMT. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). The panel had disregarded that statement as wrong and not controlling. The court's decision to take up the case en banc should give it the opportunity to provide much-needed guidance on the immigration consequences of this common conviction.

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The Ninth Circuit held that a conviction under California Penal Code section 417.3 with a sentence to one year or more is categorically an aggravated felony crime of violence. PC 417.3 penalizes brandishing a firearm in the presence of the occupant of a motor vehicle. The Board of Immigration Appeals had held that it satisfied the definition of crime of violence at 18 USC 16(a) and (b), but the Ninth relied only on subsection (a). It held that PC 417.3 requires brandishing a firearm in a threatening way that would reasonably cause the victim to fear bodily harm. The Ninth held this offense necessarily involves a "threatened" use of force under 18 USC 16(a).

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The Board of Immigration Appeals held that a conviction for 18 U.S.C. § 1001(a)(2) (2002), making a materially false, fictitious, or fraudulent statement or representation to a government official (here to obtain a U.S. passport) is a crime involving moral turpitude (CIMT). It distinguished earlier decisions that found this was not necessarily the case because the earlier version of the statute did not always require materiality. The current version does. The Board therefore upheld the finding that the noncitizen was ineligible for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) due to having a felony CIMT.

The Board also reaffirmed that entry on a false claim to U.S. citizenship is not an inspection and admission for purposes of the INA and denied voluntary departure in the exercise of discretion.

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This case began with a permanent resident's conviction for violating California Vehicle Code section 10851(a) and went all the way up to the Supreme Court. The Supreme Court vacated the Ninth Circuit's previous decision that aiding and abetting does not come within the generic definition of theft for aggravated felony purposes. It held it does. On remand, the Ninth decided the two remaining issues in the case.

First, the Ninth held the modified categorical approach permits use of facts alleged in a charging document if the government also submits an abstract of judgment or minute order that specifies the noncitizen pled to the count that contains those facts. (To be more precise, the court should have held that "elements" alleged in the charging document may be used.) Thus, it rejected the noncitizen's argument that the reviewable documents did not specify whether he was convicted of taking or driving or the non-theft offense of accessory after the fact, which VC 10851(a) also penalizes.

Second, the court rejected the noncitizen's argument that the aggravated felony theft definition requires intent to permanently deprive. Intent to temporarily deprive also satisfies the definition under Board and Ninth Circuit precedent.

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In this criminal sentencing case, the Ninth Circuit found--as the government conceded--that burglary under section 205.060 of the Nevada Revised Statutes is not divisible per Descamps and thus is not subject to the modified categorical approach to determine if it is a crime of violence. Nor did the government argue the offense is a categorical crime of violence. Like California Penal Code section 459, NRS 205.060 requires only "entry." It does not specify breaking and entering and apparently it encompasses entering stores open to the public.

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The Board issued its first published decision giving meaning to section 237(a)(4)(A)(ii) of the INA, the removal ground for engaging in “criminal activity which endangers public safety or national security.”

The respondent was convicted under 18 USC § 32(a)(5), the federal statute penalizing interference with the operation of an aircraft with either the intent to endanger the safety of any person or a reckless disregard for the safety of human life. He obtained the conviction after intentionally pointing a laser at the pilot of a Philadelphia Police Department helicopter, causing the pilot momentarily to lose control of the helicopter as it flew over the city.

In assessing whether this crime made the respondent removable, the Board first noted that § 237(a)(4)(A)(ii) requires “criminal activity” but not a conviction. On that basis, the Board held that the categorical approach does not apply to § 237(a)(4)(A)(ii). It relegated this controversial holding to a footnote with only a general citation to the Supreme Court's decision in Nijhawan.

From there, the Board concluded that the phrase “endangers the public safety” must be narrowly construed and does not include typical “single-victim crimes,” regardless of their seriousness. Rather, the phrase is limited to actions that place a large segment of the general population at risk. Having sidestepped the categorical approach, the Board held that the “totality of the circumstances,” including the extent and character of the potential harm and the facts of the underlying activity, could be considered. Because the respondent’s underlying activity endangered public safety by creating the risk of a helicopter crash over a major city, the Board found him removable.

Finally, although DHS also charged the respondent with removability for an aggravated felony crime of violence, the Board held that his crime was not an aggravated felony because it did not involve physical force or a substantial risk that such force would be used against the person or property of another.

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In this long-awaited decision, the Ninth Circuit joined the Third, Fourth, and Eleventh Circuits in rejecting the Attorney General’s decision in Matter of Silva Trevino. In Silva Trevino, then-AG Alberto Gonzales outlined a procedure by which IJs were no longer constrained by the categorical and modified categorical approaches and instead could look to evidence outside the record of conviction when determining whether an individual was inadmissible or removable for a crime of moral turpitude (CIMT).

The Ninth Circuit held that the relevant provisions of the INA at issue in Silva Trevino are not ambiguous and that the court therefore does not owe any deference to that decision. First, the court held that, although the term CIMT is “famously ambiguous,” there is nothing about the substantive definition that permits an IJ to use a different procedure than the one used for other crimes (ie the categorical and modified categorical approaches). Second, the court held that Silva Trevino created an erroneous definition of “convicted of” that would allow an IJ to consider crimes the alien may have committed but of which he was not convicted, conflicting with long-established precedent. Third, the court held that the AG was incorrect in finding that “moral turpitude” is not “an element” of a CIMT. Applying the Supreme Court’s analysis in Nijhawan, the court held that a CIMT is a generic crime “whose description is complete unto itself” and that “involving moral turpitude” is an element of the crime, not a descriptive circumstance of a separately defined crime.

The bottom line is that individuals in the Ninth Circuit can no longer be forced to relitigate their convictions in mini-trials before the IJ. A conviction can only be classified as a CIMT if moral turpitude is established through the same procedures called for involving other generic crimes.

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The Board held that the offense of traveling in interstate commerce with the intent to distribute the proceeds of a drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) was not a drug trafficking aggravated felony under 101(a)(43)(B) of the Immigration and Nationality Act (INA).

The Board held that the offense did not meet either test for that definition. First, it is not a drug trafficking crime as defined by 18 U.S.C. § 924(c) because that subsection is limited to conduct punishable as a felony under “the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46,” which does not include distribution of proceeds under 18 U.S.C. § 1952(a)(1)(A). Second, it is not a generic offense of "illicit trafficking" in a substance listed under the federal Controlled Substances Act because the offense does not involve trading or dealing. See Matter of Davis, 20 I&N Dec. 536 (BIA 1992).

Section 1952(a)(1)(A) thus is potentially a good plea for an immigrant facing serious federal drug charges because it avoids an aggravated felony. However, the immigrant would remain inadmissible and deportable for conviction of an offense involving a controlled substance.

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The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.

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