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Category: Deportability / Inadmissibility Grounds

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The Second Circuit remanded the removal order in Lanferman to the Board for an opinion on whether (A) a criminal offense must have discrete subsections or clauses to be divisible (thus triggering the modified categorical approach to determining removability or ineligibility for relief from removal) or (B) a criminal offense is divisible regardless of the structure if--based on the elements of the offense--some but not all violations give rise to removability or ineligibility for relief. The Board held that the second broader approach applied.

The decision is entirely academic, though, because the New York menacing statute at issue, N.Y. Penal Law § 120.14(1), is divisible under either approach as to whether it is a deportable firearms offense pursuant to INA 237(a)(2)(C). Section 120.14(1) provides that a person is guilty of menacing if he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying any one of a series of deadly weapons or instruments, including but not limited to firearms. Since the various weapons are specifically identified in the statute and separated by commas, the offense has discrete clauses that would seem to satisfy the narrower approach. It thus is unclear why the Second Circuit thought a remand was necessary.

Most significant for those of us practicing in the Ninth Circuit is the Board's vague and contradictory endorsement of the Ninth's decision in Aguila Montes de Oca. Lanferman's holding clearly requires that divisibility be determined "based on the elements of the offense." However, the Board also cites Aguila's "necessarily found" analysis to support its holding. The "necessarily found" analysis permits the immigration authorities to use non-elements in determining removability under the modified categorical approach. Thus, per Aguila, a menacing statute that did not have use of a firearm as an element would still constitute a removable offense if a firearm necessarily was used to commit the menacing. If the Board wanted to endorse this approach, though, why does it seem to consciously use the term "element" throughout the Lanferman opinion?? I welcome your thoughts.

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The Ninth Circuit held that a conviction under California Penal Code § 647(b) for soliciting an act of prostitution is categorically a crime involving moral turpitude. (The opening paragraph of the decision is misleading, since the body of the opinion makes clear the petitioner is challenging whether he is deportable for two crimes involving moral turpitude--not the denial of voluntary departure.)

No published Board decision holds that soliciting a prostitute is a crime involving moral turpitude (CIMT), but the panel relied on a 61 year-old decision that found the underlying act of prostitution is a CIMT, Matter of W., 4 I&N Dec. 401, 401-02 (CO 1951). (The Ninth Circuit mistakenly identified it as a Board of Immigration Appeals decision, but it actually is a Central Office decision.) The court also relied on a 46 year-old decision holding that renting a room for prostitution is a CIMT. Lambert, 11 I&N Dec. 340, 342 (BIA 1965). The panel found it could not distinguish solicitation from either of those offenses.

The reliance on hoary old cases like these is troublesome, particularly for a definition that is dependent on contemporary mores. Doubtless the adjudicators who decided the cited cases in 1951 and 1965 would consider most of what is on network television today to be morally turpitudinous. Certainly views on prostitution have evolved--from an emphasis on morality to an emphasis on protecting against exploitive conditions.

More significantly, it is hard to say that adult prostitution is a crime involving moral turpitude when it is legal and regulated in so many developed countries, including Canada, France, Germany, Israel, Hong Kong, Singapore, Ireland, and several other European countries. Apparently these countries do not view the profession as intrinsically evil as is generally the case with crimes involving moral turpitude. Indeed, there is no U.S. federal law that generally prohibits prostitution and it is legal in some counties in Nevada. How can something be legal in one state (not to mention other highly developed countries) yet be morally turpitudinous? The panel decision and the ancient cases it cited do not grapple with that question.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/28/10-70091.pdf.

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The Ninth Circuit held that a conviction for California Penal Code § 422 categorically is a crime involving moral turpitude. It reached this conclusion because (1) the conviction requires threats of death or great bodily injury, and actual intentional infliction of death or GBI would involve moral turpitude; (2) the statute also requires the threat to be of a nature that reasonably places the victim in sustained fear; and (3) a § 422 conviction requires the specific intent by the perpetrator that the victim take the statement as a threat, and the court deferred to the Board's judgment that this mens rea is a significant factor.

The outcome in this case is not surprising, but I note that the Ninth Circuit did not cite former Attorney General Mukasey's precedential definition of a crime involving moral turpitude in Matter of Silva-Trevino as a "reprehensible act" accompanied by a scienter of at least recklessness. Instead, like other recent Ninth Circuit cases, it defines crimes involving moral turpitude with reference to older definitions (here, the redundant “(1) is vile, base, or depraved and (2) violates accepted moral standards”). It seems everybody recognizes Silva-Trevino deserves no respect...

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/08-71277.pdf.

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The Supreme Court held in this case that the aggravated felony definition at 8 U. S. C. § 1101(a)(43)(M)(i) (an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000") encompasses tax offenses. It reached this conclusion despite a separate provision of the statute that designates only certain tax offenses as aggravated felonies: § 1101(a)(43)(M)(ii) (an offense that "is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000").

The Court's primary justification for why its interpretation did not render clause (ii) superfluous was a hypothetical that even the government conceded had never arisen in any tax prosecution: evasion of tax payment without fraud or deceit. In other words, a taxpayer who files a truthful return but puts the money beyond the IRS's reach. Since the tax offense listed in clause (ii) covers this scenario (as well as evasion that involves fraud or deceit), the Court concluded that clause (ii) covers some offenses not covered by the fraud or deceit offense in clause (i).

Justice Ginsberg's dissent points out how ridiculous it is to attribute this intention to Congress when the government has never prosecuted anyone for filing a truthful return and then evading payment. Instead, she attributes to Congress the sensible intent of only making the most serious tax offense, 26 U.S.C. § 7201, an aggravated felony. And in all of the known prosecutions, that tax offense has involved fraud or deceit. Thus, it makes no sense for Congress to create two provisions side-by-side and have one of them be essentially meaningless. Instead, clause (ii), which specifically addresses the most serious tax offense that causes loss of revenue to the government of more than $10,000, should be interpreted to exclude tax offenses from the fraud and deceit offenses covered by clause (ii). But only two justices agreed with Justice Ginsberg's analysis, so that is not the law.

Read the decision at http://www.supremecourt.gov/opinions/11pdf/10-577.pdf.

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The Board confirmed that distribution of a small amount of marijuana for no remuneration is not an aggravated felony, placed the burden of proving that on the respondent, and held the parties may resort to evidence outside the record of conviction to prove whether the amount is "small" and whether the distribution was gratuitous.

A state conviction is an aggravated felony under INA 101(a)(43)(B) for drug trafficking if it would be punishable as a felony under the federal Controlled Substances Act (CSA). Distribution of marijuana is a felony under the CSA, except where the defendant proves as an affirmative defense it involved a “small amount of marihuana for no remuneration,” in which case it is a federal misdemeanor. 21 U.S.C. § 841(b)(4). In states where the penal statute does not provide a similar defense, the Board held an alien put in removal proceedings on the basis of a marijuana distribution conviction can prove the exception to avoid the aggravated felony definition.

The Board also clarified procedural aspects of the exception. It held the exception is of a "'circumstance-specific' nature," so the parties can use evidence outside the record of conviction to prove or rebut the requirements for the exception. Further, the Board put the burden on the respondent to prove by a preponderance of the evidence the applicability of the exception since it is an affirmative defense under the criminal statute.

The Board declined, however, to set a bright line rule on what amount of marijuana should be considered "small." It recognized that a useful guidepost was the exception from deportability for a single offense of simple possession for personal use of 30 grams or less of marijuana. It found, however, that amounts of less than 30 grams would not be considered small in some situations, such as in a prison.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3741.pdf.

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This Fourth Circuit case rejects the Attorney General's third step in Matter of Silva-Trevino, finding that the Immigration and Nationality Act (INA) is not ambiguous on the procedure to determine whether a crime involved moral turpitude. The court recognized that INA section 237(a)(2)(A)(i) makes a noncitizen deportable only if he has a "conviction" for a crime involving moral turpitude, not for any conviction that may have followed an alleged act of moral turpitude. In other words, the noncitizen must actually plead to, or be found guilty of, an act of moral turpitude to be convicted of it and to thus be deportable.

The court found that the parallel inadmissibility section of the INA, section 212(a)(2)(A)(i)(I), supported its interpretation. Section 212(a)(2)(A)(i)(I), unlike section 237(a)(2)(A)(i), is not limited to convictions; a noncitizen also may be inadmissible if he admits to committing a crime involving moral turpitude (or the essential elements of one). The AG in Silva-Trevino had relied on the "admits having committed" language in the inadmissibility ground to extend the moral turpitude inquiry beyond the record of conviction, but the court pointed out that this case and Silva-Trevino involved convictions (not admissions, nor inadmissibility). Whatever the procedure for admissions to crimes involving moral turpitude, it is not relevant for convictions. Of course, I don't see how the admits having committed language authorizes review of police reports or witness declarations either, since 212(a)(2)(A)(i)(I) specifically refers to admissions by the alien.

The court also rejected the AG's reliance on the word "involving" to broaden the scope of the inquiry, since "crime involving moral turpitude" is a unitary term of art that has more than 100 years of prior history--none of it authorizing the procedure in Silva-Trevino.

Finally, the court noted that the agency retains discretion to determine whether an offense involves "moral turpitude," which the courts have long found to be a notoriously ambiguous phrase. This is a subtle distinction. Moral turpitude may be ambiguous, but the statute unambiguously requires that the noncitizen be convicted of it--i.e., that the act of moral turpitude be admitted by the noncitizen, or found by the court or jury, in the record of conviction. It does not authorize the agency to transform any conviction into a crime involving moral turpitude by using police reports, witness testimony, or other evidence that was not incorporated into the factual basis for the plea or finding of guilt.

Read the decision at http://pacer.ca4.uscourts.gov/opinion.pdf/102382.P.pdf.

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The Ninth Circuit held that a stipulated facts trial is functionally equivalent to a guilty plea for purposes of eligibility for 212(c) under the Supreme Court's decision in St. Cyr. In this case, the noncitizen was charged with heroin importation and possession with intent to distribute. She had brought the heroin back to the U.S. in 1980 after using it in Thailand to manage pain from a surgery she had there. In the criminal proceedings, she waived many of her constitutional rights and agreed to a court trial where she stipulated to possession of $100k worth of heroin with the intent to use it exclusively for herself. The criminal court found her guilty of importation and not guilty of possession with intent to distribute.

DHS put her in removal proceedings in 2005 based on inadmissibility for a controlled substance offense. The immigration judge and BIA found her ineligible to waive her inadmissibility under former section 212(c), which was repealed in 1996. She would have been eligible for 212(c) if she had been put in exclusion proceedings 20 years earlier, and clearly would be eligible even now--if she had entered a guilty plea. Given retroactivity concerns, the Supreme Court determined in St. Cyr that 212(c) remains available for persons who pled guilty prior to its repeal because they presumably would be relying on its availability when they gave up their constitutional rights. The BIA held this case was distinguishable because the Tyson had a court trial instead of pleading guilty.

The Ninth Circuit held that a stipulated facts trial in these circumstances was more like a guilty plea than a contested court or jury trial, since her stipulation virtually assured her conviction on the importation count. In fact, the panel found it was akin to a no-contest plea, which the regulations specifically recognize preserves 212(c) eligibility. 8 C.F.R. § 1212.3(h). The fact that the record evidence of quid pro quo for the plea is weak is not determinative, although the government did benefit by saving resources and she received a relatively light plea.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/01/27/08-70219.pdf.

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Disagreeing with the Ninth Circuit's decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th 2007), the BIA held in this Fourth Circuit case that a conviction for harassing conduct in violation of California Penal Code § 646.9 is categorically a crime of violence under 18 U.S.C. § 16(b) (thus making it an aggravated felony with a sentence to 365 days or more). The Board therefore reaffirmed its decision in Matter of Malta, 23 I&N Dec. 656
(BIA 2004) in jurisdictions other than the Ninth Circuit. The decision is weak, however, because it fails to meaningfully address the primary rationale for Malta-Espinoza.

The primary rationale for finding that PC § 646.9 is not categorically a crime of violence is that it can be committed by long-distance harassment. Malta-Espinoza cited published California cases where the convictions were for sending letters and pictures through the mail. However, a crime of violence under § 16(b) requires "a substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense." How could violent physical force be used in the course of mailing a letter?

The Board's cursory answer is that sometimes a violent physical encounter follows long-distance harassment. It cites statistics to back up this assertion. I have no doubt that sometimes violence follows long-distance harassment, but that is beside the point. Under well-established California law, the offense would be complete upon the mailing of the harassing letters (even if the sender was incarcerated and even if the recipient is out of the country). That is an offense, and the sender could be immediately prosecuted for it. And, of course, there is no way that sending a letter in-and-of itself carries a substantial risk that violent physical force could be used in committing THAT offense. PC § 646.9 thus does not categorically involve a substantial risk that violent physical force will be used.

If the sender of a harassing letter later shows up at the victim's doorstep to engage in more harassment (as in the example cited by the BIA), then that is a separate offense that likely would involve a substantial risk of the use of violent physical force to commit the offense. But that does not categorically establish that all PC § 646.9 convictions involve conduct that carries a substantial risk of violent physical force. Some may, some clearly would not, which is why the Board should have resorted to the modified categorical approach to determine if the offense underlying this particular conviction involved a substantial risk.

The Fourth Circuit may have a chance to review the Board's decision. Hopefully, it will engage in a more careful analysis. The consequences of the decision are severe. Since it determined the conviction was an aggravated felony, the Board found the respondent ineligible for relief from removal. He thus will lose his green card and be removed and probably will never be able to return to the U.S. All without review of the record of conviction to determine the actual conduct that he pled guilty to.

Finally, note that this decision, and the Malta decision that preceded it, concern only "harassing" conduct in violation of PC § 646.9. The statute also penalizes "following," which neither decision addressed. Given the rationale of this decision, however, it is hard to see how following--even from a great distance--would not be found to be a crime of violence.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3738.pdf.

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The Board of Immigration Appeals held that a conviction under California Penal Code § 311.11(a) for possession of child pornography was an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). It also held that the circumstances surrounding the offense made it a particularly serious crime that barred withholding of removal.

The Board noted that the aggravated felony definition at section 1101(a)(43)(I) covers offenses described in 18 U.S.C. § 2252(a)(4) (punishing knowing possession of visual depictions of minors engaged in sexually explicit conduct) and found that California Penal Code § 311.11(a) was an offense described by the federal statute. The Board did not address, however, the fact that the California law is seemingly broader than the federal offense. The California statute explicitly penalizes simulated sexual conduct, but the federal statute does not. Unless case law has interpreted these statutes to mean essentially the same thing, there is not a categorical match between them.

Absent a categorical match, the Board should have determined whether the modified categorical approach could be used to determine if the record of conviction established a conviction that matched the federal definition. The Board did not do that analysis since it appeared to view the offense as a categorical aggravated felony. This is a potential basis for challenge.

The Board also reviewed the nature of the crime and individual circumstances of the offense and found that it was a particularly serious crime that barred withholding of removal. It agreed that possession of child pornography was a less serious offense than producing or distributing it, but nonetheless found it to be a very serious offense. The Board found that persons who downloaded the material created a demand for its production. It also noted the continuing harm to the child victims that occurs every time someone downloads it. The Board also considered the circumstances of the respondent's offense and placed particular emphasis on the fact that the respondent made multiple downloads of the material.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3736.pdf.

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Yours truly attended the en banc oral argument today in Young v. Holder. Two judges led the questioning, Chief Judge Kozinski and Judge Kleinfeld. Judge Kozinski's questions suggested agreement with the government's argument that a plea to a charging document that alleges commission of an offense in the conjunctive (e.g., transportation, offer to sell, and sale) establishes admission to violating the crime in all of the various alleged ways of committing the offense.

Judge Kleinfeld (a former criminal defense attorney) repeatedly cited the historical practice of charging in the conjunctive and proving or pleading in the disjunctive. In other words, he recognized that prosecutors charge all of the various ways of committing an offense under the statute even where the defendant only committed it in one way. He thus strongly suggested that a plea to a complaint in the conjunctive established a plea to only one of the offenses.

On the other hand, questions by Judge Kleinfeld and other judges indicated that they might overrule the decision in Sandoval Lua. Sandoval Lua held that an inconclusive record of conviction was sufficient to establish eligibility for relief from removal. Thus, where a defendant is convicted of an offense that could be an aggravated felony or could not be an aggravated felony, Sandoval Lua had held that an ambiguous record was sufficient to avoid ineligibility for cancellation of removal (which is not available for persons convicted of aggravated felonies).

I had predicted the possibility of Sandoval Lua being overruled in a previous blog post, but certainly hope that I am not proved right. The loss of Sandoval Lua is a troubling possibility, since it is not always possible to obtain crystal clear records of conviction--particularly for convictions from years or even decades in the past.

Watch the oral argument at http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006171

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