The Ninth Circuit held that a conviction under California Health and Safety Code section 11359, possession of marijuana for sale, is categorically a controlled substance offense for purposes of inadmissibility. This seems obvious, but the panel says the petitioner argued that 11359 could involve the sale of other substances besides marijuana that are not covered by the federal law. It rejected the argument because the petitioner apparently did not provide any citations to a case where that had occurred and because it seemed "facially implausible."
Category: 9th Circuit
Alfredo Rolando Lawrence v. Holder
The introductory paragraph to this decision--and the court staff's summary--are misleading, they suggest that an immigrant is not eligible for 212(c) relief if he is an aggravated felon who filed his application for relief after November 29, 1990. The case actually holds, however, that only aggravated felon immigrants who served a sentence of "over 5 years" in prison for the aggravated felony are ineligible for 212(c) (assuming the conviction occurred before April 30, 1997) (see page 4 of the opinion). Of course, this actual holding is not entirely accurate either because the statute says "at least 5 years," not "over 5 years."
All this doesn't inspire a lot of confidence, but the actual holding of the case is consistent with previous interpretations of six other circuits. The court rejected the petitioner's argument that the bar on aggravated felons only applied if the immigrant had an "admission" after November 29, 1990. And "admission" in the sense of reentering the U.S. at a port of entry from abroad. (Lawrence was admitted in 1987.) Instead, the court deferred to the agency's longstanding interpretation that the filing of the application for relief is the "admission," at least for applicants who have not departed the U.S. and sought readmission after conviction. That may not correspond to the statutory language, but Lawrence would not even be eligible for 212(c) if the court hewed closely to 212(c)'s statutory language, which requires the immigrant to depart the U.S. and seek readmission after the conviction (since he did not seek readmission after his conviction in 1992).
Rogelio Barragan-Lopez v. Holder
The Ninth Circuit held that California Penal Code § 210.5, the felony of false imprisonment "for purposes of protection from arrest, which substantially increased the risk of harm to victim, or for the purpose of using person as a shield," is categorically a crime of violence under 18 U.S.C. § 16(b) because, by its nature, it carries a substantial risk that physical force will be used in the course of committing the offense.
In reaching its conclusion, the court first analogized § 210.5 to evading arrest and kidnapping, two other offenses which the court has found to be categorically crimes of violence under 18 U.S.C. § 16(b). The court then explained that the ordinary scenario resulting in a conviction of § 210.5 is one where the defendant used a hostage to protect himself from arrest or harm—a scenario which creates a risk that (1) the defendant will use physical force to retain control over the hostage or prevent intervention by police or others or (2) the police or others will take actions resulting in physical force being applied to the hostage or another bystander.
The latter possibility, that the police might take actions that result in the application of force, does not seem to support the argument given the Ninth Circuit's decision in Teposte v. Holder, 632 F.3d 1049, 1055 (9th Cir. 2011) that only intentional application of force by the defendant satisfies § 16(b). Curiously, the court does not fully address Teposte.
Gerardo Romero-Ochoa v. Holder
The Ninth Circuit held that INA § 101(f)(7) (8 U.S.C. § 1101(f)(7)), which establishes an irrebuttable presumption that an individual lacks good moral character if he has been incarcerated for an aggregate period of 180 days or more during the relevant period, is constitutional.
The petitioner in this case served approximately 8 months in prison for vehicular manslaughter. As a result, the IJ found that he lacked good moral character under § 101(f)(7) and therefore denied his applications for cancellation of removal and voluntary departure. The petitioner argued that § 101(f)(7) is unconstitutional because Congress may not use length of time served in custody as a proxy for seriousness and must instead specify the criminal offenses which trigger the presumption that an individual lacks good moral character. The court applied rational-basis review and rejected the argument. The court agreed that § 101(f)(7) might produce disparate outcomes based on variations in state sentencing schemes and might prove over- or under-inclusive in individual cases but held that it was nevertheless rational for Congress to conclude that most aliens who have been convicted of crimes serious enough to warrant 6 months of imprisonment will lack good moral character.
Oscar Rojas v. Holder
The Ninth Circuit held that admission to criminal conduct (here, an adult having consensual sex with a minor) could be used to deny pre-completion voluntary departure even if the conduct did not result in a conviction. The court supported that conclusion with a citation to a 1999 decision by the Board of Immigration Appeals (Matter of Arguelles-Campos, 22 I&N Dec. 811 (BIA 1999), which noted in passing that "other evidence of bad character or the undesirability of the applicant as a permanent resident" could be considered even though pre-completion voluntary departure does not require a showing of good moral character.
Abdul H. Alocozy v. USCIS
The Ninth Circuit held that an aggravated felony conviction entered on or after November 29, 1990, permanently prohibits a permanent resident from establishing good moral character for naturalization, even if an immigration judge has granted 212(c) relief from removal. The applicant for naturalization here had been convicted in 1991 of assault with intent to commit rape in violation of section 220 of the California Penal Code.
The Ninth Circuit rejected the argument that the Supreme Court's decision INS v. St. Cyr prohibited the attachment of that new penalty to an offense that was not defined as an aggravated felony at the time of conviction. It reasoned that, unlike removal proceedings where the government must prove removability, in naturalization proceedings the applicant bears the burden of establishing eligibility and no potential applicant could have a settled expectation that a conviction for assault with intent to commit rape would not affect the requirement of proving good moral character.
U.S. v. Valdavinos-Torres
The Ninth Circuit held that a plea to California Health and Safety Code 11378 (possession of a controlled substance for sale) was an aggravated felony under the modified categorical approach where count 2 of the complaint alleged the substance involved was methamphetamine and the plea form, minute order, and abstract of judgment all indicated the plea was to count 2. It held that the fact the plea was pursuant to People v. West was of no consequence, despite the fact that under California law a West plea does not necessarily admit all of the alleged facts.
The decision fails to even acknowledge that it conflicts with the en banc decision in U.S. v. Vidal or the prior decision in Fregozo v. Holder. Each hold that a minute order must include the critical phrase "as charged" to sufficiently establish under the modified categorical approach that the defendant pled guilty to an aggravated felony where the minute order does not otherwise indicate the factual basis for the plea. This is because under California law a charging document can be orally amended, so a plea to "count 2" does not necessarily mean a plea to the count as written in the complaint. This is particularly true for a West plea. Unfortunately, Valdavinos-Torres fails to even address this issue, which is strange since the decision does discuss Vidal.
Joseph Cristopher Young v. Holder
This en banc decision has disastrous consequences for many immigrants who entered guilty or no contest pleas in reliance on Ninth Circuit precedent from the last 5 years. The Ninth Circuit had held in Sandoval-Lua v. Gonzales that an immigrant is eligible to apply for legal status or discretionary relief from removal unless his or her record of conviction clearly shows conviction of a disqualifying offense. This is critical because some criminal statutes cover both conduct that would disqualify a person and conduct that would not disqualify a person. If the record of conviction is ambiguous regarding the offense pled to, Sandoval-Lua had held the immigrant was not disqualified. Young reversed this holding. It held the record must clearly show the person was not convicted of a disqualifying offense.
Moreover, the "record of conviction" includes only the charging instrument, transcript of the plea colloquy, plea agreement, and comparable judicial records of this information. That means police reports, probable cause declarations, the applicant's testimony, etc., cannot be used to show that the person was not convicted of a disqualifying crime. Thus, if the record of conviction is not clear, the Ninth Circuit now holds the applicant cannot establish eligibility.
On the other hand, if the government must establish deportability or inadmissibility (as in many cases regarding lawful permanent residents), then Young held an ambiguous record will prevent the government from meeting its burden.
The one beneficial holding from Young is that a plea to a conjunctively phrased count does not necessarily admit all of the alleged ways of violating the statute. In other words, a plea to a count that alleges sale, transportation, and offering to sell a controlled substance does not equal an admission of all of those offenses. The court recognized that prosecutors often allege commission of all of the various offenses covered by a statute despite only needing prove the defendant committed one of them. Young thus overruled the contrary holding in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc) (per curiam).
Francisco M. Gonzaga-Ortega v. Holder
The Ninth Circuit held that the right to counsel provided by 8 C.F.R. § 292.5(b) does not apply to "applicants for admission" at primary or secondary inspection and held that a lawful permanent resident may be treated as an applicant for admission based on the inspecting officer's conclusions.
Generally, returning lawful permanent residents are not considered to be applicants for admission unless an exception at 8 U.S.C. § 1101(a)(13)(C) applies. Here, the exception was that the LPR was found to have engaged in illegal activity after departure from the U.S.: he allegedly attempted to smuggle his niece into the country upon return. The officers detained him 28 hours and interrogated him, obtaining a sworn statement admitting to the smuggling. At his removal hearing he sought to suppress the statement. He argued he had a right to counsel because he could not be considered an arriving alien until he received a final administrative determination of that issue by the immigration judge and Board of Immigration Appeals.
The Ninth Circuit disagreed, finding that the respondent's argument was "not consistent with the language of the statute or with logic." Really? The officer usually has nothing more than suspicion until the officer interrogates the returning resident--here after more than 24 hours in detention with no access to counsel. Thus, it is the denial of counsel that permits the government to establish that a returning resident is an arriving alien--not vice versa.
As an interesting corollary, I think most CBP officers would be surprised to learn that returning residents have a right to counsel during primary and secondary inspection IF they cannot be considered arriving aliens under § 1101(a)(13)(C). In other words, I don't think an LPR who is potentially deportable for a conviction but not inadmissible for it (e.g., a firearms offense) will be given an opportunity to have his attorney present at the airport. We'll see if that changes with this decision.
Fernando Sanchez-Avalos v. Holder
In this case, the Ninth Circuit provided an important interpretation of the "necessarily rested" limitation in last year's en banc decision in Aguila Montes de Oca. It first, unsurprisingly, held that a conviction for sexual battery under California Penal Code section 243.4(a) is not categorically an aggravated felony for sexual abuse of a minor. Obviously, PC 243.4(a) may be committed against an adult. More importantly, though, it found the conviction was not for sexual abuse of a minor under the modified categorical approach either, despite an allegation in the charging document that the victim was a minor.
Under the modified categorical approach, a court may review record of conviction documents to determine whether an overbroad offense has been narrowed to match a generic federal aggravated definition. Aguila Montes de Oca held that alleged facts in a charging document, or other evidence of the prosecution's theory of the offense, may be used if the eventual conviction "necessarily rested" on them.
In this case, the charging document alleged the victim's date of birth, which would make her a minor at the time of the offense. Sanchez-Avalos pled no contest to the offense and was later put in removal proceedings upon return from a trip to Mexico. The immigration judge found him inadmissible for a crime involving moral turpitude and denied his application for a 212(h) waiver of inadmissibility. The Board dismissed his appeal of the decision, holding that the conviction was an aggravated felony for sexual abuse of a minor that disqualified him from 212(h).
The Ninth Circuit, however, held that the conviction could not have "necessarily rested" on the date of birth allegation in the charging document because the victim's age is irrelevant to the sexual battery charge. It could have obtained a conviction at trial even if the birth date contained a typo and the victim was actually an adult. Thus, this conviction is not an aggravated felony under the modified categorical analysis.
Finally, this decision requires a shout out to the attorney for the immigrant, rock star criminal immigration attorney Michael Mehr.