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Category: 9th Circuit

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The Ninth Circuit held that a guilty plea to possessing a controlled substance with intent to distribute may be considered in determining whether there is reason to believe the noncitizen is a drug trafficker--even if the conviction is later overturned, at least if the conviction is overturned for a reason unrelated to the voluntariness of the plea.

Here, the noncitizen's conviction was overturned because the police did not have reasonable suspicion to conduct the traffic stop that led to his arrest. Nonetheless, the court held the plea--along with circumstantial evidence in the case--could be considered to establish the noncitizen's inadmissibility for reason to believe he had engaged in drug trafficking.

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Following the Supreme Court's decision in Descamps, the Ninth Circuit adhered to its original decision in this case (despite the frolic occasioned by Aguila-Montes de Oca). It held that a court may only examine the elements of a conviction to determine whether the conviction satisfies the requirements of a federal definition. Further, a reviewing court may look to the contents of a record of conviction only when necessary to identify which of multiple alternative elements the defendant was convicted of (and then only if at least one alternative would satisfy the federal definition).

Here, the court found the immigrant's conviction under the Uniform Code of Military Justice for using a government computer to access pornography did not include as an element the depiction of a minor engaging in sexually explicit conduct (because the order he violated prohibited accessing any type of pornography), so the conviction did not satisfy the aggravated felony definition of conviction of a child pornography offense. Nor could the government resort to the record of conviction because the statute of conviction was not divisible into multiple alternative elements--the element of the depiction of a minor engaging in sexually explicit conduct was entirely missing from the offense.

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The Ninth Circuit held that the aggravated felony bar to a 212(h) waiver of inadmissibility does not apply to a permanent resident who was admitted to the U.S. from abroad as something other than a permanent resident and then later adjusted status to permanent residence. It, like all of the other circuit courts to have reviewed the question, found this result compelled by the plain language of the statute. Thus, the petitioner here was not barred from seeking a 212(h) waiver of inadmissibility for her crime involving moral turpitude because she entered on a B-2 visitor visa and then adjusted to permanent resident status.

A person who was admitted on an immigrant visa, however, would not be eligible for 212(h) to waive a later criminal ground of inadmissibility. The court also recognized that an adjustment of status would count for the purpose of the 212(h) aggravated felony ground of ineligibility if the person was not inspected and admitted and admitted from abroad--i.e., where the person entered without inspection. It found the language of the statute did not preclude the interpretation of the Board of Immigration Appeals in this circumstance.

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The Ninth Circuit held that a conviction for California Penal Code section 288(c)(1) (lewd or lascivious act on child 14 or 15 years of age by a person at least 10 years older) is categorically a crime of violence under 18 USC 16(b), and thus is an aggravated felony with a sentence to one year or more.

Section 16(b) requires that the offense be a felony which “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.” Citing United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2012) and Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. 2012), the court held that there only need be a substantial risk of the use of force in an "ordinary" case prosecuted under the statute. An offense may be a categorical aggravated felony even where there is a possibility that the statute may be violated "at the margin" in a way that does not involve such a risk.

The court found that "in the ordinary case" of 288(c)(1) there is a substantial risk that the perpetrator will use physical force against the victim, since the victim may resist and the adult may use physical force to ensure compliance. The petitioner had argued the statute covered offenses where the victim consented to the conduct, but the court held that such a possibility at the margin was not enough to prevent it from being considered a crime of violence. The court also noted that PC 288(c)(1) requires an age difference of at least 10 years, which in its view made the use of physical force more likely than in consensual statutory rape (where the perpetrator need only be 18 years of age and the victim could be just one day shy of 18).

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The Ninth Circuit granted rehearing en banc and vacated the published decision in Ceron v. Holder, which had held that assault with a deadly weapon in violation of California Penal Code section 245(a)(1) is categorically a crime involving moral turpitude (CIMT). The panel had so held despite an en banc decision that had stated assault with a deadly weapon was not a CIMT. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). The panel had disregarded that statement as wrong and not controlling. The court's decision to take up the case en banc should give it the opportunity to provide much-needed guidance on the immigration consequences of this common conviction.

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The Ninth Circuit held that a conviction under California Penal Code section 417.3 with a sentence to one year or more is categorically an aggravated felony crime of violence. PC 417.3 penalizes brandishing a firearm in the presence of the occupant of a motor vehicle. The Board of Immigration Appeals had held that it satisfied the definition of crime of violence at 18 USC 16(a) and (b), but the Ninth relied only on subsection (a). It held that PC 417.3 requires brandishing a firearm in a threatening way that would reasonably cause the victim to fear bodily harm. The Ninth held this offense necessarily involves a "threatened" use of force under 18 USC 16(a).

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This case began with a permanent resident's conviction for violating California Vehicle Code section 10851(a) and went all the way up to the Supreme Court. The Supreme Court vacated the Ninth Circuit's previous decision that aiding and abetting does not come within the generic definition of theft for aggravated felony purposes. It held it does. On remand, the Ninth decided the two remaining issues in the case.

First, the Ninth held the modified categorical approach permits use of facts alleged in a charging document if the government also submits an abstract of judgment or minute order that specifies the noncitizen pled to the count that contains those facts. (To be more precise, the court should have held that "elements" alleged in the charging document may be used.) Thus, it rejected the noncitizen's argument that the reviewable documents did not specify whether he was convicted of taking or driving or the non-theft offense of accessory after the fact, which VC 10851(a) also penalizes.

Second, the court rejected the noncitizen's argument that the aggravated felony theft definition requires intent to permanently deprive. Intent to temporarily deprive also satisfies the definition under Board and Ninth Circuit precedent.

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In this criminal sentencing case, the Ninth Circuit found--as the government conceded--that burglary under section 205.060 of the Nevada Revised Statutes is not divisible per Descamps and thus is not subject to the modified categorical approach to determine if it is a crime of violence. Nor did the government argue the offense is a categorical crime of violence. Like California Penal Code section 459, NRS 205.060 requires only "entry." It does not specify breaking and entering and apparently it encompasses entering stores open to the public.

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In the first of two decisions this week applying the Supreme Court’s decision in Descamps v. United States, the Ninth Circuit held that the petitioner’s conviction for aggravated criminal sexual abuse under Illinois law was not a crime of violence for purposes of an enhancement under the federal sentencing guidelines.

The petitioner was convicted under an Illinois law penalizing sexual conduct with a victim “who was at least 13 years of age but under 17 years of age” and at least five years younger than the perpetrator. In seeking an enhancement of the petitioner’s subsequent sentence for illegal reentry, the government asserted that his conviction was a crime of violence because it qualified as a “forcible sex offense”; the sentencing judge agreed.

The Ninth Circuit reversed. The court held that, even assuming sex offenses involving minors are inherently forcible, the Illinois statute under which the petitioner was convicted was not a categorical match with the generic federal definition of a “forcible sex offense” because the Illinois statute includes as minors persons up to 17 years old whereas the federal definition of a minor is someone under 16. The court next held that the age element in the Illinois statute is not divisible because it is stated as a range—“at least 13 years of age but under 17 years of age”—and not as a list of alternative elements, as required to be categorized as a divisible statute under Descamps. Having found that the statute is not divisible, the court held that it was constrained by Descamps from applying the modified categorical approach. The petitioner’s conviction therefore did not qualify as a crime of violence for purposes of the enhancement, regardless whether he did in fact commit a forcible sex offense in its generic form.

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In this long-awaited decision, the Ninth Circuit joined the Third, Fourth, and Eleventh Circuits in rejecting the Attorney General’s decision in Matter of Silva Trevino. In Silva Trevino, then-AG Alberto Gonzales outlined a procedure by which IJs were no longer constrained by the categorical and modified categorical approaches and instead could look to evidence outside the record of conviction when determining whether an individual was inadmissible or removable for a crime of moral turpitude (CIMT).

The Ninth Circuit held that the relevant provisions of the INA at issue in Silva Trevino are not ambiguous and that the court therefore does not owe any deference to that decision. First, the court held that, although the term CIMT is “famously ambiguous,” there is nothing about the substantive definition that permits an IJ to use a different procedure than the one used for other crimes (ie the categorical and modified categorical approaches). Second, the court held that Silva Trevino created an erroneous definition of “convicted of” that would allow an IJ to consider crimes the alien may have committed but of which he was not convicted, conflicting with long-established precedent. Third, the court held that the AG was incorrect in finding that “moral turpitude” is not “an element” of a CIMT. Applying the Supreme Court’s analysis in Nijhawan, the court held that a CIMT is a generic crime “whose description is complete unto itself” and that “involving moral turpitude” is an element of the crime, not a descriptive circumstance of a separately defined crime.

The bottom line is that individuals in the Ninth Circuit can no longer be forced to relitigate their convictions in mini-trials before the IJ. A conviction can only be classified as a CIMT if moral turpitude is established through the same procedures called for involving other generic crimes.

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