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Category: 9th Circuit

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The Ninth Circuit held that the petitioner's conviction for “Attempted Promoting a Dangerous Drug in the First Degree,” in violation of Haw. Rev. Stat. §§ 705-500(1)(b), 712-1241(1)(b)(ii), was not categorically a deportable controlled substance offense. It reached this conclusion because the relevant Hawaii controlled substance schedules include two substances, benzylfentanyl and thenylfentanyl, that are not currently listed in the federal Controlled Substances Act.

Although not a categorical controlled substance offense, the court applied the modified categorical analysis because it found the offense divisible pursuant to Coronado v. Holder. The record of conviction did not identify the substance, though, so the government could not meet its burden of proof.

The court thus found Ragasa was not deportable as charged. That was a good thing, since it rejected his claim to citizenship based on adoption by two naturalized citizens in 1980.

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In this criminal prosecution for illegal entry after removal, the Ninth Circuit held that an Arizona conviction for attempted sexual contact with a minor under the age of 15, in violation of ARS 13-1405B, does not meet the federal generic definition of sexual abuse of a minor. It therefore remanded for re-sentencing. It also held, though, that the defendant could not establish prejudice resulted from a violation of his due process rights in the stipulated removal proceedings that preceded his removal because at the time the offense was considered an aggravated felony for sexual abuse of a minor in the Ninth Circuit. It just goes to show how quickly the law can change.

ARS 13-1405B has three elements: (1) a mens rea of “intentionally or knowingly”; (2) an act of “engaging in sexual intercourse or oral sexual contact”; and (3) a victim “who is under fifteen years of age.” The court found this did not meet either of the alternative federal generic definitions of sexual abuse of a minor. First, it is not sexual abuse of a minor as statutory rape because Arizona law, unlike federal law, does not require an age difference of 4 years. Second, ARS 13-1405B does not meet the alternative generic definition of sexual abuse of a minor, which requires that: (1) “the conduct proscribed . . . is sexual;” (2) “the statute protects a minor;” and (3) “the statute requires abuse.” Ninth Circuit precedent presumes that sexual contact with a minor under the age of 14 is inherently abusive, but ARS 13-1405B covers both 14 year-olds and those younger than 14. The panel declined to extend that inherent abusiveness presumption to 14 year-olds. Nor did it find any other element of abuse in this offense, since it involves consensual sex.

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The Board held that the Nevada offense of attempted violation of NRS 205.273 (possession of a stolen vehicle) was not a categorical aggravated felony theft offense under the law of the Ninth Circuit. NRS 205.273 may be satisfied by possessing, receiving, or transferring a stolen vehicle with either knowledge that it was stolen or reason to believe that it was stolen. However, the generic definition of an aggravated felony theft offense, according to the Ninth Circuit's en banc decision in U.S. v. Corona-Sanchez, requires "the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The Board appropriately recognized that a conviction does not require that intent if it is based on what a reasonable person should have known, rather than what the defendant actually knew. Therefore, a conviction under NRS 205.273 does not categorically meet the theft definition.

The Board declined to decide whether NRS 205.273 is divisible into two separately enumerated crimes, possession with knowledge and possession with reason to believe. Since both alternatives are listed in the statute, it would seem to be divisible and thus susceptible to the modified categorical approach. I do not know much about Nevada law, though, so perhaps there is an argument against divisibility. It did not matter in this case because the record did not indicate whether the conviction was for knowledge or reason to believe.

The Board also explicitly reserved the question of whether receipt of stolen property with reason to believe it was stolen would meet the generic definition of a theft offense absent controlling circuit precedent. It noted that many jurisdictions, although not most, included receipt with reason to believe in theft statutes at the time Congress enacted the theft aggravated felony definition.

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In this criminal appeal, the Ninth Circuit upheld a sentencing enhancement for prior convictions for crimes of violence despite a variance in the availability of an affirmative defense. The district court imposed the enhancement in this illegal reentry case because the defendant had previous California convictions for attempted murder and kidnapping. He had argued California attempt was not a categorical match to the generic definition of a crime of violence because California does not provide for the affirmative defense of voluntary abandonment, while the majority of jurisdictions and the Model Penal Code do.

The court held that Ninth Circuit precedent, e.g., United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010), compelled it to reject Albino-Loe's argument. It found that the Supreme Court's decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) did not undermine that precedent. The court distinguished Moncrieffe because it did not involve an affirmative defense, but rather a sentencing exception that defined whether the offense was a felony or misdemeanor.

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The Ninth Circuit, sitting en banc, overruled its erroneous precedent on the maximum potential sentence to imprisonment for California misdemeanors and its precedent that California Penal Code (CPC) section 245 (assault with a deadly weapon) is a categorical crime involving moral turpitude. It also found unpersuasive a Board decision from 1947 that held a CPC 245 conviction involved moral turpitude, since that decision did not apply the categorical analysis. The court remanded to the Board to determine in the first instance whether CPC 245 is a crime involving moral turpitude (CIMT). It further urged the Board to issue a publish decision promptly.

I, for one, am not optimistic the Board will quickly provide a published decision. A prompt answer certainly is important, since CPC 245 is a very common conviction and immigrants should be able to know whether it is a CIMT before deciding to give up their constitutional rights by entering a guilty plea to it. As the Ninth Circuit recognized, though, the question is a difficult one. On one hand, the element of a deadly weapon (a firearm in subsection (a)(2)) makes the offense more serious. However, assault does not require actual injury or even physical contact. Further, the court noted assault is a general intent crime that does not require an intent to injure or a conscious disregard of an unreasonable risk of injury (or, more precisely, it does not require an intent to create an apprehension of a completed battery or a conscious disregard of an unreasonable risk of creating an apprehension of a completed battery). So, I think the Board will struggle with this, which would be unfortunate.

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This Ninth Circuit criminal sentencing case is significant for its holding that divisibility must be explicit in the statute, not implied. The defendant had appealed his federal conviction under 18 U.S.C. § 2250 for traveling in interstate commerce and failing to register with the federal authorities as a sex offender. He was subject to registration because he had a previous Oregon conviction for ORS § 163.425. One of his arguments on appeal was that he should not have received an enhanced sentence as a Tier III offender because ORS § 163.425 is broader than the Tier III generic offense and it is not divisible. The court agreed.

Tier III defines "sexual abuse" as a sexual act accomplished by means of certain types of threat or fear or with a victim who is mentally or physically incapable of consenting. It does not include non-consent due merely to the victim being under the age of consent. A conviction under ORS § 163.425, on the other hand, requires only a sexual act with a person who does not consent. The statute does not specify the types of non-consent that would qualify, but, according to the Oregon Supreme Court, it includes at least actual non-consent and legal incapacity to consent, such as being under the age of 18, mental incapacitation, etc.

The government conceded that ORS § 163.425 is overbroad, but argued it is divisible pursuant to the Supreme Court's decision in Descamps. It argued the court therefore could look to the conviction documents under the modified categorical approach to find a match to the Tier III definition. It asserted § 163.425 is divisible because Oregon also has a definitional statute at § 163.315, which lists persons who are legally incapable of consenting to sex, including minors, mental defectives, mental incapacitated persons, and physically helpless persons. The Oregon conviction documents included the defendant's guilty plea statement that he had sex with a girl who was legally incapable of consenting because she was intoxicated and 15 years old. Non-consent due to intoxication would meet the Tier III definition, so the government argued the enhanced sentence was proper.

The majority of the panel rejected the government's argument and found ORS § 163.425 is not divisible because it does not explicitly list the alternative types of non-consent. It held the definitional statute at § 163.315 did not make § 163.425 divisible because § 163.425 does not reference § 163.315 or even use the same terminology (§ 163.425 requires non-consent, while § 163.315 defines legal incapacity to consent). In other words, § 163.425 defines non-consent broadly to include all types of non-consent and § 163.315 defines only a sub-group of non-consent--legal incapacity. Since § 163.315 does not provide an exclusive list of alternative elements for § 163.425, it does not make § 163.425 divisible into those elements for purposes of the modified categorical approach.

Judge Callahan partially dissented, finding that ORS § 163.425 is divisible. She noted the Oregon Supreme Court had recognized § 163.425 covers two types of non-consent: actual non-consent and legal incapacity, as defined by § 163.315. She maintained that this (implicitly) made the offense divisible into the alternative elements of: actual non-consent, minority, mental incapacitation, helplessness, etc. Since the defendant's guilty plea thus admitted the "element" of intoxication under this logic, the conviction would satisfy the federal definition under the modified categorical approach.

The majority rejected Judge Callahan's approach because it would be a partial return to the means-based analysis of Aguila-Montes de Oca that the Supreme Court repudiated in Descamps. It held the element was "non-consent" and the "means" were actual non-consent, minority, mental incapacitation, and perhaps others, since § 163.425 did not explicitly define a limited universe of modes of commission. I.e., it is the explicit, limited universe that transforms a means into an element, and that was not present here.

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The Ninth Circuit assumed without deciding that a grant of temporary resident status pursuant to the legalization provision at INA 245A amounted to an "admission." It held, however, that a termination of the temporary resident status (in this case for convictions) returns an alien to the unlawful status held before the grant of temporary resident status. 8 C.F.R. § 245a.2(u)(4). In this case, Hernandez-Arias previously held the status of an alien present without admission or parole. The court held the termination thus returned him to an unadmitted status, which made him vulnerable to removal for being present without admission or parole.

The court rejected Hernandez-Arias' argument that this return to an unadmitted status would result in a "rescission," which the regulations say is not required for termination of status and which did not occur in his case. The court distinguished a rescission from a termination. Using divorce and annulment as a comparison, it held rescission would result in him never having had temporary resident status and deprive him of any benefits of having had that status. Termination simply ends the status and returns him to the status he had before.

As an alien not admitted or paroled (and apparently not eligible for 245(i) adjustment), the court held Hernandez-Arias was not eligible for a 212(h) waiver of inadmissibility for his criminal convictions. It held he therefore was not prejudiced by the failure of the immigration judge in the removal proceedings to advise him of potential eligibility for 212(h). It therefore upheld his conviction in this case for illegal reentry after removal.

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The Ninth Circuit issued an opinion finding that the controlled substance schedules referenced by California Health and Safety Code (CHSC) 11377 (as well as 11378 and 11379) are not a categorical match for the federal controlled substance schedules. Specifically, it found khat (Catha Edulis) appears on the California schedules, but that the federal courts have held it is not covered by the federal schedules. Likewise, chorionic gonadotropin (HGC) is listed on the California schedules, but is not listed on the federal ones. That means a conviction under CHSC 11377(a) does not categorically make a noncitizen inadmissible or deportable for a conviction relating to a federal controlled substance.

The respondent had further argued CHSC 11377(a) was not divisible pursuant to Descamps v. United States and thus could never trigger inadmissibility or deportability, regardless of the record of conviction. Unfortunately, the Ninth Circuit rejected that argument and held it could conduct a modified categorical analysis to see if the record of conviction establishes the conviction was for a federal controlled substance. The charge in this case alleged only one controlled substance, methamphetamine (obviously a federal controlled substance), and the clerk's docket reflected conviction on the charge, so the court held the government established inadmissibility under the modified categorical approach. It found a clerk's docket for a misdemeanor case was just as reliable as a minute order, which the court previously had held could be used under the modified categorical approach. Of course, clerk's dockets and minute orders often do contain errors, but presumably it found them reliable because a defendant may inspect and correct them if they are not accurate. I say presumably because the court did not explicitly say so here.

The court did remand the case to the Board, however, because it failed to address his pro se claims on appeal that his previous attorney was ineffective and that the immigration judge did not act as a neutral fact-finder, which might have impacted his application for cancellation of removal.

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The Ninth Circuit held that felony false imprisonment in violation of California Penal Code section 236/237 is not categorically a crime involving moral turpitude. This conclusion was virtually a foregone conclusion given the Ninth Circuit previously had found the more serious offense of simple kidnapping in violation of California Penal Code section 207(a) did not categorically involve moral turpitude.

The court noted the California appellate courts had upheld felony false imprisonment convictions under a "menace" theory in circumstances that did not fit the federal definition of moral turpitude. See People v. Islas, 147 Cal. Rptr. 3d 872, 875–82 (Ct. App. 2012) (two gang members convicted of false imprisonment by menace after hiding from police for about 15 minutes in an apartment rented by a mother and her children; conviction upheld even though the defendants did not brandish a weapon, did not act in a hostile manner, did not touch the woman or her family, did not issue any verbal threats, and, in fact, expressly told her that “they were not going to harm her or her children”).

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In this Sentencing Guidelines case, the Ninth Circuit reviewed case law from the Delaware Supreme Court to determine whether the court had narrowed that state's unusually broad statutory definition of criminal attempt. It did so despite the fact that the U.S. Supreme Court in Descamps reserved the question of whether review of case law to determine the reach of a statute is permitted under the categorical analysis.

The panel's review of the case law of the Delaware Supreme Court revealed that the definition of attempt in that state really is as broad as the statute implies. Delaware law criminalizes attempt where the defendant has committed an act that leaves no reasonable doubt as to the defendant’s intention to commit the crime he or she is charged with attempting to commit. In other words, a person could be convicted of attempt where he or she has taken a step merely in preparation toward committing a crime. This is in contrast to most states and the generic federal definition, which require both intent and a substantial step toward completion. And a "substantial step" occurs under the federal generic definition when a defendant’s "actions 'unequivocally demonstrat[e] that the
crime will take place unless interrupted by independent circumstances.'"

Since the case law merely confirmed the statutory text, the panel did not need to use the case law to decide that the defendant's attempt conviction here was not a categorical match to the federal definition. Nonetheless, Judge Wallace's concurrence opposed even this on judicial restraint grounds. He wrote that the underlying crime attempted in this case (statutory rape) was not a match to the Sentencing Guidelines definition for a forcible sex offense. As it is not a match, an attempt to commit that crime is not a match to the federal definition either. He would have denied the case on that ground.

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