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Category: Deportability / Inadmissibility Grounds

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The Ninth Circuit held that an abstract of judgment for a California Health and Safety Code section 11377(a) conviction that indicates a plea to a criminal count that identifies the substance as a regulated substance under the federal Controlled Substances Act (here, methamphetamine) satisfies the government's burden to prove removability for conviction of a controlled substance offense. It held this was the case even where the abstract itself does not identify the substance (here, counsel for the immigrant obtained amendment of the abstract to remove its specification of the controlled substance).

The panel further disregarded the fact that Cabantac's plea was pursuant to West/Alford because the plea transcript identified the substance as methamphetamine.

The lesson? Correct an abstract of judgment early in the removal proceedings if necessary, but that may not be enough if competent immigration counsel was not involved at the time of the criminal proceedings. (A shameless plug to consult with an attorney such as myself!)

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This decision interprets and applies the Ninth Circuit's 2011 decision in Aguila Montes de Oca to the following question: In determining the facts "necessarily found" by the trier of fact for a particular criminal conviction, may an immigration judge import facts from the factual basis for a separate conviction in the same criminal proceeding? The court said no over Judge Bybee's vigorous dissent.

The permanent resident in this case was serving in the U.S. Marines when he used a government computer to access pornography, at least some of which involved minors. He was court martialed and pled guilty to two counts. The first, under the Uniform Code of Military Justice (UCMJ) Article 92, was for “violat[ing] or fail[ing] to obey any lawful general order or regulation.” The specific order or regulation at issue was Department of Defense (DOD) Directive 5500.7-R, which provides for use of a government computer for authorized purposes only, which does not include accessing pornography (of any type). The second offense Aguilar-Turcios pled guilty to was bringing discredit upon the armed forces in violation of UCMJ Article 134 by “wrongfully and knowingly possess[ing] visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline of the armed forces.” In other words, the Article 92 charge referenced only accessing pornographic websites, while the Article 134 charge specified accessing child pornography. When the judge took Aguilar-Turcios' guilty pleas for the two offenses, the judge questioned him about the factual basis for the pleas. Regarding the Article 92 offense, the judge asked Aguilar-Turcios only to confirm visiting pornographic websites, while the judge asked about pornography involving minors for the Article 134 plea.

Aguilar-Turcios was put in removal proceedings after completion of his sentence and bad-conduct discharge from the Marines. DHS alleged that both of the convictions amounted to aggravated felonies under Immigration and Nationality Act (INA) section 101(a)(43)(I) as convictions for “an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography).” Applying the Ninth Circuit's then-valid missing element rule, the immigration judge found the Article 92 conviction was an aggravated felony and the Article 134 conviction was not and ordered removal. The permanent resident appealed the finding that the Article 92 conviction was an aggravated felony, but DHS unwisely chose not to appeal the finding that the Article 134 conviction was not. While the case was before the Ninth Circuit, the court overruled its missing element rule and issued en banc decision in Aguila Montes de Oca.

Aguila expanded what may be considered as part of the "conviction" when determining whether a particular conviction matches the generic definition of a deportable offense in the INA, i.e., conducting the modified categorical analysis. Previously, the court had held that if a person has been convicted of an offense that is missing an element of the generic definition under the INA, then there never could be a match between the two that would establish deportability. For example, a person convicted of assault could not be deportable for a firearms offense if the assault statute did not include a firearm as at least one means of committing the assault--even if a person in fact did use a firearm to commit the assault. Aguila overruled that precedent and held that a court may consider more than the elements of the statute to determine whether a match exists. It held that a court could also consider any facts necessarily found by the trier of fact in support of the conviction. “If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy the elements of the generic crime, then the factfinder necessarily found the elements of the generic crime."

In Aguila-Turcios then, the government (and Judge Bybee in dissent) argued that facts found for the Article 134 conviction could be considered in determining whether the Article 92 conviction amounted to an aggravated felony (because DHS waived its opportunity to argue that the Article 134 conviction also was an aggravated felony). This would have been a significant enlargement of Aguila, since Aguila specifies that the facts must have been necessary to support the conviction. How could the alleged fact of depiction of minors be necessary to the Article 92 charge when the government did not include it in the allegations and Aguila-Turcios did not admit it? He only needed to admit accessing pornography in general, and that is all he did admit for that offense.

Fortunately, the majority of the panel did not agree with the government and did not use the unsympathetic facts of this case to create bad law. The court held that for a conviction to be an aggravated felony under the INA, the factual basis for that particular conviction must satisfy the aggravated felony definition. Borrowing from another conviction doesn't cut it.

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The Board held that a conviction by a municipal court in Wichita, Kansas, for a violation of a municipal controlled substance ordinance is a conviction for immigration purposes because the proceedings were "genuine criminal proceedings." The respondent was fined and jailed for possession of marijuana in a municipal court. He later was convicted in a state court of a felony for possession of marijuana with a prior municipal court conviction. ICE then initiated removal proceedings, alleging removability for a controlled substance offense and for an aggravated felony. It alleged his possession with a prior conviction was an aggravated felony.

The respondent raised several arguments to attack the validity of the underlying municipal court judgment. The Board rejected the respondent's first argument that the municipal court proceedings were not genuine because there was no absolute right to counsel. Witchita apparently provides a right to appointed counsel only in municipal court cases where there is a possibility of incarceration, but not otherwise. The Board found this was consistent with the constitutional right to counsel for indigent persons, so it did not agree that the proceedings were not genuine. (It is unclear whether he actually had counsel or not, but he would appear to have the right to it because he received a sentence to incarceration for the municipal conviction.)

The respondent further argued that his lack of counsel (or advisement by the judge) deprived him of information about the potentially serious immigration consequences of his municipal court plea. The Board treated that as a collateral attack against the judgment, rather than as an argument that the proceedings were not genuine. As such the Board held that the respondent needed to make the argument to the criminal court, not to the Board. (Again, this argument is curious since he apparently did have a right to counsel.)

The respondent also argued that convictions in the Witchita municipal courts were not genuine because there is no right to jury trial on the charges. However, there is a right to trial de novo before a jury in a state district court if the municipal court finds the defendant guilty. The Board found this right to request a new trial if the defendant is dissatisfied is enough.

Additionally, unlike the Oregon procedures in Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004), Witchita municipal proceedings require the prosecutor to prove the offense beyond a reasonable doubt. The proceedings thus were genuine by that measure as well.

The impact of this case goes far beyond Witchita convictions, though. The reasoning behind it strongly indicates that California infractions will be considered convictions for immigration purposes as well. There had been some hope that Eslamizar signaled an intent to not treat infractions as convictions, particularly since in California there is no right to appointed counsel for them. Cuellar-Gomez dispels that hope. Further, California requires proof beyond a reasonable doubt for infraction convictions, so that argument from Eslamizar does not apply either.

The respondent in Cuellar-Gomez also argued that his municipal conviction could not support ICE's charge of removability under section 237(a)(2)(B)(i) for being "convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance." He was convicted under a municipal ordinance, not any law or regulation of a State. The Board rejected that argument because a municipality is a creature of the state, so its laws are laws of the state.

Finally, the Board held that Cuellar-Gomez's conviction was an aggravated felony because it corresponds to a federal felony under the Controlled Substances Act for recidivist possession, 21 U.S.C. § 844(a). As required for a federal recidivism felony, the prior conviction was final and respondent received advance notice of the enhancement for having a prior conviction.

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The Ninth Circuit held that California Penal Code section 69, attempting to deter or resisting an executive officer, is not categorically a crime of violence for aggravated felony purposes. On its face, CPC 69 would seem to be a crime of violence since it may be violated in two ways: (1) by attempting through threats or violence to deter or prevent an officer from performing a duty imposed by law; or (2) by resisting by force or violence an officer in the performance of his or her duty. California jury instructions, however, provide that "violence" in this respect is synonymous with "force" and both "mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act."

The Supreme Court has held that under the first test for determining if an offense is a "crime of violence", 18 USC 16(a) ("an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another") an offense must be an active, violent crime. The Ninth Circuit has previously held that a California battery that requires only an offensive, noninjurious touching does not necessary meet that standard. CPC 69 requires only the same type of battery, so it is not necessarily a crime of violence either.

Although the offense is not a crime of violence under the first test for a crime of violence, the alternative test encompasses "any other offense that is a felony and that, 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." 18 USC 16(b). The Supreme Court has held that this test, like section 16(a), requires a level of intent of at least recklessness. Resisting an officer under the second prong of CPC 69 is a general intent crime that requires only the intent to resist with at least de minimus force. It does not require intentional use of violent force or reckless disregard of a substantial risk that violent force may be used (by the offender). In other words, a person may be convicted of CPC 69 for nonviolently resisting under circumstances where there is no substantial risk of that resulting in violent force. The court contrasted an Arizona statute that had been interpreted by the Arizona courts to exclude de minimus resistance and which required a substantial risk of injury to the peace officer. CPC 69 thus is not categorically a crime of violence.

The court remanded the case to allow the government to file additional conviction documents to establish that this particular conviction was for a crime of violence. When the case was before the agency, the Ninth Circuit's previous "missing element" rule was in effect and the government may not have had cause to submit documents for the so-called modified categorical analysis. Aguila Montes de Oca overruled the missing element rule after the agency decided the case, so the court found the government should have the opportunity to further contest the case under Aguila. The court rejected the petitioner's argument that Aguila's new rule should be applied only prospectively.

Finally, I would note that the fantastic decision in this case was surely the result of great lawyering by super lawyer Holly Cooper of the UC Davis Immigration Law Clinic.

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The Board held that, with a sentence to a year or more, a conviction for California Penal Code § 32 is categorically an aggravated felony for obstruction of justice under INA § 101(a)(43)(S). In doing so, it clarified its previous decision in Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). The Ninth Circuit had interpreted Espinoza to mean that a conviction involves obstruction of justice only if it involved hindering an ongoing investigation or judicial proceeding. Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). And a conviction under PC § 32 does not require the existence of an ongoing investigation or proceeding, so the Ninth Circuit's interpretation indicated it was not necessarily an aggravated felony.

The Board asserted that "obstruction of justice" in the aggravated felony definition is an ambiguous term and invoked the Supreme Court's decision in Brand-X to interpret that term despite the Ninth Circuit's decision. It held that an offense relates to obstruction of justice "if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice." Further, it implicitly held interference with the process of justice could include assisting with escape from arrest.

The Board distinguished Espinoza, where it held misprision in violation of 18 U.S.C. § 4 was not an obstruction of justice offense, because misprision does not require the person to act with the specific intent to interfere with the process of justice.

All of this points to the more basic problem that the Board has stretched "obstruction of justice" far past its traditional, accepted meaning. The Board asserts the phrase is ambiguous, but is it? Open any law dictionary and it is likely to define the term as interfering with the administration of justice, not as driving a get-away car. And it is not limited to any particular category of crimes, so an accessory after the fact conviction under the Board's definition could be an aggravated felony even where the underlying crime is not.

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The Ninth Circuit held that the Board of Immigration Appeals improperly engaged in fact-finding when it reversed the immigration judge's determination that the petitioner was not inadmissible under 8 U.S.C. § 1182(a)(2)(C) for knowing participation in drug trafficking. The petitioner had attempted to enter the U.S. in his employer's truck on instructions to get parts for the business and to have the tires changed on the truck. Inspectors at the port of entry found marijuana in the gas tank and charged him with inadmissibility (no criminal charges were filed). The immigration judge found the petitioner testified credibly that he had not known about the drugs. The Board reversed that decision based on testimony by one of the Customs and Border Protection officers who conducted the inspection. The testimony consisted of estimates and proffered opinion, but the immigration judge had declined to make findings of fact based on that testimony. By making findings of fact in the first place, the Board acted contrary to the limits on its authority under the regulations. The court held the Board should have remanded to the immigration judge for additional findings of fact.

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In this case, the government unlawfully removed the respondent before the removal order was administratively final, i.e., while the case was on direct appeal to the Board. The regulations provide that a removal order shall not be executed during the period for filing an appeal to the Board (unless appeal is waived) or while the appeal is pending. The regulations also provide that the departure of a respondent from the U.S. while a direct appeal is pending constitutes a withdrawal of the appeal. 8 C.F.R. § 1003.4. DHS argued that even its removal of the respondent "in error" is a departure that strips the Board of jurisdiction over the appeal. The Board rejected that argument and found, "Fundamental fairness dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien’s appeal."

On the merits of the appeal, the Board held that a conviction for being an "accomplice" to an aggravated felony offense makes an alien removable for an aggravated felony if the conviction is for aiding and abetting the principal offender. The respondent in this case was convicted under an Arkansas statute that defined accomplice more broadly to include "a person who (1) solicits another to commit an offense, (2) aids another in the commission of the offense, or (3) fails to prevent the commission of the offense, so the Board held it was not categorically an aggravated felony. The reviewable record of conviction, however, made it clear the respondent assisted the principal at the scene of the crime. The conviction thus satisfied the modified categorical analysis.

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The Ninth Circuit rejected the Board of Immigration Appeals' published opinion in this case, Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006), and held that misprision of a felony in violation of 18 U.S.C. § 4 is not categorically a crime involving moral turpitude. The Ninth Circuit found the Board's analysis was conclusory and flawed, so it did not defer to the Board's decision.

Misprision of a felony requires knowledge of the commission of a felony and concealment of that felony and not making it known to the authorities. The Board found this was a crime involving moral turpitude (CIMT), but the Ninth held it failed to meaningfully address one of the key requirements for a CIMT: that the offense be inherently base, vile, or depraved.

The Ninth Circuit held the fact that misprision requires concealment does not satisfy the requirement of baseness, vileness, or depravity. This is the case because misprision does not require the specific intent to conceal or obstruct justice. It is enough to know of the crime and do something that conceals it--even if concealment of the crime is not intended.

Although the Ninth Circuit held that misprision does not categorically involve moral turpitude, it also held that it could involve it in some cases. Thus, the Ninth Circuit remanded for the Board to determine in the first instance whether Robles-Urrea's conviction necessarily rested on facts that involved moral turpitude.

The most interesting thing about the remand, though, is that by indicating that the Board would have to look only to the narrow set of documents that form the record of conviction, the Ninth implicitly rejected the third step of Matter of Silva-Trevino, which authorizes inquiry beyond the record of conviction. This is a surprisingly beneficial application of Aguila Montes de Oca.

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The Board held that a second degree murder conviction under a Michigan statute that did not require intent to kill is categorically an aggravated felony "murder" conviction, 8 USC 1101(a)(43)(A). The noncitizen killed two persons in an automobile collision where he was driving under the influence of alcohol. He pled no contest to second degree murder in violation of section 750.317 of the Michigan Compiled Laws.

The Board first found that 8 USC 1101(a)(43)(A) defines murder in the generic sense, so it looked to the law of the majority of states and to the federal definition of murder. It determined these defined murder to include "depraved heart" murder where there was no specific intent to kill, but there was extremely reckless conduct carrying a high likelihood of death or serious bodily injury. The Michigan conviction here was that type of murder, so the Board found it fit the aggravated felony definition.

The Board disregarded the Supreme Court's decision in Leocal because that case concerned whether DUI was a crime of violence, which is a separate aggravated felony offense.

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The Supreme Court held that a permanent resident who pled guilty to a crime involving moral turpitude before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 still benefits from the Supreme Court's 1963 decision in Fleuti, which provides he would not be considered to be "seeking entry" after a innocent, casual, and brief trip abroad. If the resident is not seeking entry, then he is not subject to numerous additional criminal and noncriminal grounds for removal.

IIRAIRA created a new rule that returning residents are considered to be seeking admission upon return from abroad if they have committed an offense that makes them inadmissible. The Supreme Court held that rule is not retroactive because Congress did not explicitly make it retroactive and it creates a new disability (the noncitizen's inability in this case to travel to Greece briefly to visit his ill parents without being subject to removal upon return). It is thus another application of Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994).

Notably, the Supreme Court held that explicit reliance on prior law by the individual is not required to avoid retroactive application. The majority of the Court also rejected the dissent's argument that the noncitizen's own travel after IIRAIRA is what triggered his removal proceedings and he could have avoided those problems by not traveling.

Vartelas is not a big change for those of us in the Ninth Circuit or Fourth Circuit, since they already had found that the new definition of when a permanent resident would be seeking admission was not retroactive for noncitizens who pled guilty before IIRAIRA. Camins v. Gonzales, 500 F. 3d 872 (CA9 2007); Olatunji v. Ashcroft, 387 F. 3d 383 (CA4 2004).

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