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Category: Deportability / Inadmissibility Grounds

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From the perspective of attorneys defending immigrants against removal for convictions, it is hard to imagine a better outcome than the Supreme Court's 7-2 ruling in this case. It holds that a conviction satisfies a generic definition of an offense under the Immigration and Nationality Act (INA) only if the minimum conduct for the conviction, not applying legal imagination, satisfies the definition. This rule is faithful to past decisions of the Supreme Court, but it undermines many of the previous Ninth Circuit and Board of Immigration Appeals (BIA) decisions examined on this blog.

The Department of Homeland Security (DHS) put Moncrieffe, a long-term lawful permanent resident, in removal proceedings and alleged he was an aggravated felon drug trafficker based on a Georgia conviction for possession of marijuana with intent to distribute. The conviction resulted from a traffic stop where the police found 1.3 grams of marijuana (enough for 2-3 cigarettes).

Moncrieffe had argued DHS could not prove he was an aggravated felon because the Georgia offense encompasses distribution of a small amount of marijuana for no remuneration (i.e., social sharing) and that is not a felony under the federal Controlled Substances Act (CSA). The lower courts rejected that argument because in a federal prosecution the default sentencing range is as a felony and the defendant would need to establish the small amount and lack of remuneration to qualify for a misdemeanor sentence.

The Supreme Court rejected the hypothetical federal prosecution approach because the INA requires that a conviction be equivalent to a CSA felony to meet the drug trafficking aggravated felony definition and a conviction does not meet that test unless it excludes the possibility of being equivalent to a CSA misdemeanor.

In reaching that conclusion, the Supreme Court forcefully reaffirmed language from its earlier decision in Johnson v. United States: “we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” 559 U.S. 133, 137 (2010) (alterations in original). In other words, if a statute penalizes some conduct that does not meet the INA definition, and there is a realistic probability that the state would prosecute that conduct, then the conviction cannot satisfy the INA definition, unless the record narrows the conviction to the generic INA definition (the modified categorical analysis).

The real action in the lower courts has been attempts to expand the reach of the modified categorical analysis, but Moncrieffe sent a shot over the bow indicating the modified categorical approach is permissible only when the criminal statute lists different crimes separately. This contrasts with the Ninth Circuit's en banc decision in Aguila Montes de Oca. But just what is a divisible statute that lists different crimes separately? The Supreme Court's forthcoming decision in Descamps should answer that.

Moncrieffe also undermines the Ninth's en banc decision in Young, which held that a respondent applying for discretionary relief in removal proceedings could not meet the burden of proving eligibility if the record of conviction is inconclusive as to whether the offense matches the generic INA definition for a disqualifying conviction. Moncrieffe indicates that the categorical approach applies to the question of eligibility for relief too and that a conviction is presumptively for the least serious conduct that has a realistic probability of being prosecuted.

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The Ninth Circuit held that a conviction under California Health and Safety Code section 11359, possession of marijuana for sale, is categorically a controlled substance offense for purposes of inadmissibility. This seems obvious, but the panel says the petitioner argued that 11359 could involve the sale of other substances besides marijuana that are not covered by the federal law. It rejected the argument because the petitioner apparently did not provide any citations to a case where that had occurred and because it seemed "facially implausible."

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The Ninth Circuit held that California Penal Code § 210.5, the felony of false imprisonment "for purposes of protection from arrest, which substantially increased the risk of harm to victim, or for the purpose of using person as a shield," is categorically a crime of violence under 18 U.S.C. § 16(b) because, by its nature, it carries a substantial risk that physical force will be used in the course of committing the offense.

In reaching its conclusion, the court first analogized § 210.5 to evading arrest and kidnapping, two other offenses which the court has found to be categorically crimes of violence under 18 U.S.C. § 16(b). The court then explained that the ordinary scenario resulting in a conviction of § 210.5 is one where the defendant used a hostage to protect himself from arrest or harm—a scenario which creates a risk that (1) the defendant will use physical force to retain control over the hostage or prevent intervention by police or others or (2) the police or others will take actions resulting in physical force being applied to the hostage or another bystander.

The latter possibility, that the police might take actions that result in the application of force, does not seem to support the argument given the Ninth Circuit's decision in Teposte v. Holder, 632 F.3d 1049, 1055 (9th Cir. 2011) that only intentional application of force by the defendant satisfies § 16(b). Curiously, the court does not fully address Teposte.

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The Board held that a conviction for unlawful animal fighting under 7 U.S.C. § 2156(a)(1) is categorically a crime involving moral turpitude.

First, the Board reiterated that to involve moral turpitude, a crime must have two essential elements—a culpable mental state and reprehensible conduct. The Board found that 7 U.S.C. § 2156(a)(1) meets both requirements: (1) the statute requires that the offender “knowingly” sponsor or exhibit an animal for fighting, and a mens rea of “knowingly” meets the scienter requirement; and (2) the conduct involved is reprehensible because it involves the intentional infliction of often-fatal harm on animals purely for entertainment. In reaching this conclusion, the Board noted that amendments and expansions to the law since its enactment in 1976 reflect an increasing national consensus against animal fighting, as do similar laws in all 50 states and the District of Columbia. Finally, the Board noted that the respondent had not shown a realistic probability that the statute has been applied to conduct not involving moral turpitude.

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The Board held that California Penal Code section 314(1) (every person who willfully and lewdly exposes his person or private parts in any public place or in any place where there are present other persons to be offended or annoyed is guilty of a misdemeanor) is categorically a crime involving moral turpitude (CIMT). Unlike other Board cases that held simple indecent exposure was not a CIMT, the Board held that indecent exposure coupled with the element of lewd intent made PC 314(1) categorically a CIMT.

In reaching that conclusion, the Board rejected the contrary interpretation of the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) that PC 314(1) is not categorically a CIMT. It invoked authority to interpret the CIMT definition pursuant to Brand-X and held that the interpretation of lewdness for PC 314(1) by California courts would always involve moral turpitude. It rejected an argument that nude dancing at a bar might be prosecuted under PC 314(1), and that such dancing would not be a CIMT, as unrealistic and contrary to the California Supreme Court's decision in Morris v. Municipal Court, 652 P.2d 51, 59 n.13 (Cal. 1982).

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The Ninth Circuit held that a plea to California Health and Safety Code 11378 (possession of a controlled substance for sale) was an aggravated felony under the modified categorical approach where count 2 of the complaint alleged the substance involved was methamphetamine and the plea form, minute order, and abstract of judgment all indicated the plea was to count 2. It held that the fact the plea was pursuant to People v. West was of no consequence, despite the fact that under California law a West plea does not necessarily admit all of the alleged facts.

The decision fails to even acknowledge that it conflicts with the en banc decision in U.S. v. Vidal or the prior decision in Fregozo v. Holder. Each hold that a minute order must include the critical phrase "as charged" to sufficiently establish under the modified categorical approach that the defendant pled guilty to an aggravated felony where the minute order does not otherwise indicate the factual basis for the plea. This is because under California law a charging document can be orally amended, so a plea to "count 2" does not necessarily mean a plea to the count as written in the complaint. This is particularly true for a West plea. Unfortunately, Valdavinos-Torres fails to even address this issue, which is strange since the decision does discuss Vidal.

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This case is a welcome clarification of the exception to section 237(a)(2)(B)(i), the controlled-substance ground of removability, where the respondent’s conviction is for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.”

The respondent in this case was convicted in 2010 of simple possession of less than 10 grams of marijuana and possession of drug paraphernalia (specifically, a plastic baggie in which the marijuana was contained) in violation of Arizona law. In bond proceedings, the DHS asserted that the convictions made the respondent removable under section 237(a)(2)(B)(i) and thus subject to mandatory detention under section 236(c)(1)(B). The Immigration Judge disagreed, finding that the respondent was not removable under section 237(a)(2)(B)(i) because her convictions fell under the simple-possession exception.

On appeal of the custody determination, the Board rejected the government’s argument that the respondent could not benefit from the exception to section 237(a)(2)(B)(i) because she had been convicted of two separate state offenses. The Board held that the term “single offense” in section 237(a)(2)(B)(i) describes the totality of an individual’s acts on a single occasion, rather than a generic crime, and thus calls for the “circumstance-specific” approach adopted by the Supreme Court in Nijhawan v. Holder, 557 U.S. 29 (2009). The Board held that the exception therefore applies to an individual convicted of more than one statutory offense so long as each offense arose from a single act of simple marijuana possession. The Board further held that the individual need not even have been convicted of simple marijuana possession to qualify for the exception: the exception applies to a conviction, such as possession of drug paraphernalia, if the acts that led to it were closely related to simple possession or ingestion of 30 grams or less of marijuana.

Lastly, the Board rejected the government’s argument that the respondent’s record of conviction left open the possibility that the marijuana baggie was possessed for purposes of sale, not possession. The Board reaffirmed prior case law holding that, to establish removability under section 237(a)(2)(B)(i), the government bears the burden of proving the conviction in question does not fall under the simple-possession exception and that an inconclusive record will not satisfy the burden.

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This case supplies a definition for the phrase “crime of stalking” under INA § 237(a)(2)(E)(i). Although the phrase is not defined by the Act, the Board held that it should be given its “ordinary, contemporary, and common meaning,” which is: (1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death. (The Board left open the question whether, to qualify as a crime of stalking, there must also be a fourth requirement that the conduct actually caused the victim to be placed in fear of bodily injury or death.)

Applying this definition, the Board held that California Penal Code § 646.9 is a crime of stalking under § 237(a)(2)(E)(i) because it requires proof that the defendant “willfully, maliciously, and repeatedly follow[ed] or willfully and maliciously harasse[d] another person and . . . ma[de] a credible threat with the intent to place that person in reasonable fear for his or her own safety, or the safety of his or her immediate family,” thereby satisfying all three elements of the generic crime.

Notably, the Board commented in a footnote that at least one California Court of Appeal decision holds that the term “safety” in Penal Code § 646.9 includes “endangerment or hazard” in addition to physical safety. This leaves open potential arguments that the statute is not a categorical match with INA § 237(a)(2)(E)(i). Nevertheless, the Board noted that in this particular case the respondent had not argued, nor was there any evidence, that the fear experienced by his victim was anything other than a fear of physical safety.

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This en banc decision has disastrous consequences for many immigrants who entered guilty or no contest pleas in reliance on Ninth Circuit precedent from the last 5 years. The Ninth Circuit had held in Sandoval-Lua v. Gonzales that an immigrant is eligible to apply for legal status or discretionary relief from removal unless his or her record of conviction clearly shows conviction of a disqualifying offense. This is critical because some criminal statutes cover both conduct that would disqualify a person and conduct that would not disqualify a person. If the record of conviction is ambiguous regarding the offense pled to, Sandoval-Lua had held the immigrant was not disqualified. Young reversed this holding. It held the record must clearly show the person was not convicted of a disqualifying offense.

Moreover, the "record of conviction" includes only the charging instrument, transcript of the plea colloquy, plea agreement, and comparable judicial records of this information. That means police reports, probable cause declarations, the applicant's testimony, etc., cannot be used to show that the person was not convicted of a disqualifying crime. Thus, if the record of conviction is not clear, the Ninth Circuit now holds the applicant cannot establish eligibility.

On the other hand, if the government must establish deportability or inadmissibility (as in many cases regarding lawful permanent residents), then Young held an ambiguous record will prevent the government from meeting its burden.

The one beneficial holding from Young is that a plea to a conjunctively phrased count does not necessarily admit all of the alleged ways of violating the statute. In other words, a plea to a count that alleges sale, transportation, and offering to sell a controlled substance does not equal an admission of all of those offenses. The court recognized that prosecutors often allege commission of all of the various offenses covered by a statute despite only needing prove the defendant committed one of them. Young thus overruled the contrary holding in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc) (per curiam).

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In this case, the Ninth Circuit provided an important interpretation of the "necessarily rested" limitation in last year's en banc decision in Aguila Montes de Oca. It first, unsurprisingly, held that a conviction for sexual battery under California Penal Code section 243.4(a) is not categorically an aggravated felony for sexual abuse of a minor. Obviously, PC 243.4(a) may be committed against an adult. More importantly, though, it found the conviction was not for sexual abuse of a minor under the modified categorical approach either, despite an allegation in the charging document that the victim was a minor.

Under the modified categorical approach, a court may review record of conviction documents to determine whether an overbroad offense has been narrowed to match a generic federal aggravated definition. Aguila Montes de Oca held that alleged facts in a charging document, or other evidence of the prosecution's theory of the offense, may be used if the eventual conviction "necessarily rested" on them.

In this case, the charging document alleged the victim's date of birth, which would make her a minor at the time of the offense. Sanchez-Avalos pled no contest to the offense and was later put in removal proceedings upon return from a trip to Mexico. The immigration judge found him inadmissible for a crime involving moral turpitude and denied his application for a 212(h) waiver of inadmissibility. The Board dismissed his appeal of the decision, holding that the conviction was an aggravated felony for sexual abuse of a minor that disqualified him from 212(h).

The Ninth Circuit, however, held that the conviction could not have "necessarily rested" on the date of birth allegation in the charging document because the victim's age is irrelevant to the sexual battery charge. It could have obtained a conviction at trial even if the birth date contained a typo and the victim was actually an adult. Thus, this conviction is not an aggravated felony under the modified categorical analysis.

Finally, this decision requires a shout out to the attorney for the immigrant, rock star criminal immigration attorney Michael Mehr.

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