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Category: Deportability / Inadmissibility Grounds

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The Ninth Circuit overruled its previous precedent in United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004), and held that a California abstract of judgment may be used to establish whether a respondent in removal proceedings has been convicted of first or second degree burglary. It relied on the en banc decision in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008), which had held that a California minute order could be used for the same purpose. The court found that an abstract of judgment are contemporaneously prepared judicial record of the plea and sentence based on language from a California Supreme Court case. As a contemporaneous record that the defendant could review and challenge, it held it was within the reviewable record of conviction.

The abstract may be contemporaneously prepared in some cases, but often it is prepared months after the plea in cases where sentencing does not occur immediately. Nor is it really a record of the basis for the plea, but rather is primarily a sentencing document. It therefore is not comparable to a minute order from a change of plea hearing.

The more surprising holding of Kwong, however, was that California first degree burglary is a crime of violence under 18 USC 16(b) as a felony that involves a substantial risk that violent physical force will be used against the person or property of another in committing it. Although prior Ninth Circuit precedent held the same, I say surprising because the recent en banc decision in Aguila Montes de Oca v. Holder recognized that California burglary does not necessarily require a trespassory entry. It recognized that it would include a fireman called to a burning building who enters to fight the fire and also to misappropriate valuables inside or a servant who enters with his master's home with the intent to steal the silver. These types entries are not trespassory and thus are not the types of situations where there is no substantial risk that the offender will use violent physical force to commit the crime.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/12/07/04-72167.pdf

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In a decision with rather shoddy reasoning, in this blogger's opinion, the panel held that the noncitizen was barred from withholding of removal under INA 241(b)(3) for conviction of a particularly serious crime.

The offered justification for concluding that the respondent's residential burglary conviction(s) (one, or all three collectively, the opinion does not say) is a particularly serious crime is that California residential burglary is a crime of violence under 18 USC 16(b). As a crime of violence with a sentence to a year or more, a crime would be an aggravated felony, but that does not automatically equate to a particularly serious crime, as the panel acknowledges. Rather, the panel seems to simply equate a crime of violence with a particularly serious crime. It did not cite any authority for this conclusion and this blogger is not aware of any. It did not even discuss this premise in any detail, suggesting that it was an oversight.

The panel held that "residential burglary under California Penal Code § 459 constitutes a crime of violence because it is a felony '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 U.S.C. § 16(b)." This is contrary to the reasoning of a recent en banc Ninth Circuit.

The Ninth Circuit in Aguila Montes de Oca recognized that California's burglary statute penalizes entry into a residence with intent to commit theft or any felony even if the entry is licensed or privileged or even at the owner's personal invitation. See People v. Frye, 959 P.2d 183 (Cal. 1998), overruled on other grounds by People v. Doolin, 198 P.3d 11 (Cal. 2009). For example, a servant who enters his master's house with the intent to appropriate the family silver while at work commits a residential burglary under California law. Likewise the firefighter who enters a burning building with the intent to appropriate valuables while fighting a fire. Thus, the Ninth Circuit held that California burglary is not categorically a burglary under the generic federal definition, which requires an unlawful or unprivileged entry.

Whether a California burglary meets the generic federal definition is admittedly a different question than whether the crime involves a substantial risk that (violent) physical force will be used in the course of committing the crime. And the Lopez-Cardona panel distinguished Aguila on this basis. However, the servant and firefighter examples of licensed or privileged entries are precisely the types of situations where a California burglary would not by its nature involve a substantial risk of the use of physical force being used in the course of the crime. Another example, courtesy of the ILRC, shows it even more clearly: a person commits a California burglary when he enters a home at the owner's invitation with the intent to fraudulently sell worthless life insurance. That type of theft or felony does not carry an inherent risk of violent physical force being used in the course of the crime. So, it is not categorically a crime of violence (although that still might be established under the modified categorical approach, particularly post-Aguila).

Finally, the decision notably failed to even cite the Ninth Circuit's recent tour-de-force decision by another panel on the particularly serious crime bar to withholding--Delgado v. Holder. Just another indication that this decision was not carefully vetted.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/18/09-71661.pdf

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In Matter of Islam, the Board adhered to its previous decision in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), interpreting the ground of deportability for conviction of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct.

The Board held that the respondent's convictions in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards at several retail outlets on five separate occasions over the course of a day did not arise out of a “single scheme of criminal misconduct.” Although all of the crimes occurred on a single day and all followed a similar modus oparandi, this was not enough under Adetiba's rule.

Under Adetiba, Board held that a single scheme "refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct. The related question is whether there is enough time after each crime for the person to reflect on it and disassociate from the criminal activity.

In deciding to follow Adetiba, the Board declined to apply the more expansive interpretation of the Second Circuit even within that circuit, citing its authority to interpret ambiguous statutory phrases despite previous federal court authority to the contrary. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3733.pdf.

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Definitively answering a long-standing question, the Board held the government bears the burden of proving that a permanent resident returning to the U.S. after travel abroad should be treated as an "applicant for admission." Permanent residents generally are not considered applicants for admission unless one of the exceptions at INA 101(a)(13)(C) applies. If an exception applies, then the permanent resident is subject to additional stricter grounds for removal than would otherwise apply. For example, a single conviction for a crime involving moral turpitude might not make a permanent resident removable unless he is considered an applicant for admission.

The allocation of the burden of proof can be determinative because whether a crime involves moral turpitude often is not clear from the record of conviction. If the noncitizen bore the burden of proof, an inconclusive record of conviction might make him removable. By placing the burden on the government, of clear and convincing evidence no less, Rivens protects permanent residents from loss of their status and removal based on inconclusive evidence.

In a second holding, the Board found that the crime of being an accessory after the fact, 18 U.S.C. § 3, is a crime involving moral turpitude only if the underlying offense involved moral turpitude. The Board found that helping someone after he commits a crime is turpitudinous (base, vile, or depraved) if the crime committed was turpitudinous. This contrasts with the Ninth Circuit's decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), although the Board suggested otherwise.

The Board's holding does not stand to reason, though, since an accessory after the fact does not participate in the underlying crime. Rather, being an accessory after the fact is a completely separate crime that should not depend on the nature of the underlying offense.

For example, being an accessory after the fact would include giving your son $100 when you know he is on the run from the police. Does giving your son the money become more or less turpitudinous depending on whether the police are after him for grand theft (a crime of moral turpitude) or possessing an unregistered firearm (not a crime of moral turpitude)? No, in either case the mother is not helping her son commit the crime; she is helping him to avoid standing trial for it. This is a crime and bad parenting, but not vile or depraved.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf

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The Board of Immigration Appeals determined that a New York attempted arson offense was an aggravated felony under INA 101(a)(43)(E) as an offense described in 18 U.S.C. § 844(i). It found the New York statute's lack of the federal jurisdictional element of interstate commerce was not significant.

The Board reached this conclusion because the aggravated felony definition has a clause that provides, “the crimes specified are aggravated felonies regardless of whether they fall within the jurisdiction of the federal government, a state, or, in certain cases, a foreign country.” Since virtually all state (and foreign) crimes lack a federal jurisdictional element, a contrary conclusion would render this clause meaningless.

The Board also noted a provision for the early removal of nonviolent offenders that included an exception for offenders in state custody for this particular aggravated felony, which likewise would be superfluous if section 101(a)(43)(E) did not cover state offenses.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3730.pdf.

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The Ninth Circuit ordered rehearing en banc in this case. The panel's decision, 634 F.3d 1014 (9th Cir. 2011), had two primary holdings. Both were very important for noncitizens in removal proceedings with possible aggravated felony convictions, so the decision to take the case en banc raises concern. The court specifically directed briefing for rehearing en banc on the issue of whether an unqualified plea to an offense charged in the conjunctive (as is typical in California) admits violation of each of the charged offenses.

The government argued that such a plea would admit violation of every part of the statute--even if it would be ridiculous or physically impossible.  For example, if the prosecutor charges in the conjunctive a violation of California Penal Code section 12020(a)(1) in its entirety, and the a defendant haplessly enters a plea to the complaint, the government argues he would be admitting ALL of the following:

Manufacturing  and causing to be manufactured, importing into the state, keeping for sale, offering and exposing for sale,  giving, lending, and possessing any cane gun and wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains and consists of any fléchette dart, any bullet containing and carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade and metal replica handgrenade, and any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, and sandbag

In other words, someone who in fact only possessed a nunchaku would be deemed to also be admitting to manufacture, import, sale, etc. of dozens of other weapons under the government's theory. It argued this was compelled by the notoriously ambiguous decision in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc), which had mentioned in passing that a plea to a conjunctively charged complaint admitted three different violations.

The petitioner argued that the complaint in Snellenberger had been narrowed to three specific offenses out of a total of twenty-two possible covered by the statute. He argued this narrowing of the charges made an unqualified plea to the complaint different from a plea to a complaint that charges the entire statute.

The panel decision in Young also contains a favorable holding based on Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir. 2007).  It held an inconclusive record of conviction carries a respondent's burden to establish that he or she does not have an aggravated felony that would bar cancellation of removal where one or more of the potential theories for conviction was not an aggravated felony. Since rehearing en banc permits review of all issues in a case, this may be revisited as well.

We'll see what the Ninth Circuit decides.  Oral argument has been rescheduled to the week of December 12, 2011.

Read the briefs at http://www.ca9.uscourts.gov/datastore/uploads/enbanc/07-70949pfr.pdf

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The panel withdrew its published opinion in Aguilar-Turcios v. Holder, 582 F.3d 1093 (9th Cir. 2009) based on the en banc decision in Aguila Montes de Oca (see my Aguila post) and directed more briefing. This case presents a clear example of the change that Aguila will effect.

In this case, a marine was court martialed for disobeying a general order, which in this case prohibited the use of government computers to access pornography (legal or illegal). The prosecution alleged some of the pornography accessed (6 pictures) involved minors. He pled guilty to accessing pornographic websites. At some point, he also admitted that six of the pictures involved persons under 18, although it is not clear from the earlier panel decision whether he did this in his plea or in the removal proceedings. The government sought to remove him for conviction of an aggravated felony for conviction of a child pornography offense (8 U.S.C. § 1101(a)(43)(I)).

The original panel decision, over Judge Bybee's dissent, found that the modified categorical approach could not conform the conviction to the immigration aggravated felony definition for conviction of a child pornography offense because the offense never requires that the images involve minors--it only requires that the images amount to pornography (including of adults). In other words, it was missing an element of the generic aggravated felony offense. Aguila rejected the missing element rule and likely will compel a different result in this case (but feel free to disagree by posting a comment below!).

Read the order at http://www.ca9.uscourts.gov/datastore/opinions/2011/08/29/06-73451.pdf

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In another brilliant decision by Judge Berzon, the Ninth Circuit rejected the BIA's determination that California second-degree commercial burglary is an attempted theft offense that qualifies as an aggravated felony with a sentence to a year or more. It also held that the offense is not a crime involving moral turpitude (CIMT) either.

AGGRAVATED FELONY

The BIA had held that entering a building with the intent to commit theft amounted to an overt act that constituted a substantial step toward completion of the theft. The Ninth Circuit disagreed, primarily because the building the petitioner entered was a business open to the public.Mere preparation to commit a crime does not constitute attempt. The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. A suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrate that the crime will take place unlessinterrupted by independent circumstances.

The Ninth Circuit held that, for example, breaking into a locked vehicle amounted to a substantial step toward the completed offense of theft, since it is the type of conduct that strongly corroborates the criminal purpose to commit theft. On the other hand, simply walking into a store open for business does not. Most people who walk into a store do not commit theft, so it is not the type of act that is substantial enough for attempt.

CRIME INVOLVING MORAL TURPITUDE

The Ninth Circuit also determined that commercial burglary is not a CIMT. It first determined that it owed no deference to the BIA's holding on this point, since it was unpublished and not persuasive because the brief analysis either misapprehended the elements of California burglary or Ninth Circuit precedent. Namely, the BIA appeared to equate commercial burglary with residential burglary.

The Ninth then determined that commercial burglary was not equivalent to traditional CIMT's. It is not equivalent to theft because it does not involve a taking or deprivation, and it is not an attempted theft offense as discussed above. Nor does it involve fraud, since there is nothing explicitly or implicitly fraudulent about walking into a store.

Nor is entering a commercial building open to the public with the intent to commit theft a crime that is so depraved or reprehensible that it otherwise amounts to a CIMT. "To hold otherwise would mean that someone who did what Hernandez Cruz admitted doing—walking into a commercial building with the intent to commit larceny—but then changed his mind and walked out without ever committing any crime, would be guilty of a CIMT." "If it did, the phrase 'moral turpitude' would be devoid of all meaning."Of course, BIA precedent has gone a long way toward sapping the meaning from moral turpitude.

Read decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/08-73805.pdf

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The Board held that a conviction under California Penal Code section 220 (1994) with a sentence to a year or more is a categorical aggravated felony as a crime of violence under both 18 U.S.C. 16(a) and (b). PC 220 penalizes assault (creating an apprehension of imminent battery) with intent to commit mayhem, rape, or certain other sex offenses.

Even if the assault does not result in an actual application of violent force, the Board found that it is a categorical crime of violence under 18 U.S.C. 16(a) as an offense that has as "an element the use, attempted use, or threatened use of [violent] physical force against the person or property of another." The Board found that the intent, as interpreted by the California Supreme Court, requires the specific intent to use whatever level of violent force is required to complete the object of the offense. Since the intent is to complete the object of the assault (mayhem, rape, etc.), the Board held that every assault under PC 220 required at least attempted use or threatened use of violent force against another.

The Board also held that PC 220 is a categorical crime of violence under 18 U.S.C. 16(b) too, which 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.”

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3723.pdf

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In this opinion, the Ninth Circuit explains the evidentiary standard for inadmissibility under INA § 212(a)(2)(C) for being an alien who the consular officer or the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the same. The question is who must have the necessary “reason to believe” and at what time.

The court held that the reason to believe must be collectively known by the officials adjudicating the question of admissibility. At the time of entry, that would be the CBP inspector and any other appropriate officials within one of the DHS agencies. If the inspector does not admit the noncitizen and instead puts him or her into removal proceedings for inadmissibility, then the immigration judge (or BIA, once on appeal) is the official that must have reason to believe. In the latter situation, the IJ and BIA are not limited to the facts known at the time the noncitizen's inspection at the port of entry. Later obtained evidence, the respondent's testimony, and even expert testimony may be considered. The court then will review the decision of the IJ and the BIA for substantial evidence.

The court also found that, although the credibility of the noncitizen was important, it did not need to deem the testimony credible in the absence of an explicit adverse credibility finding.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/06-70635.pdf

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