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Category: 9th Circuit

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Relief under former section 212(c) is unavailable for a permanent resident who has served a "term of imprisonment" of more than 5 years for conviction of an aggravated felony, but what if part of that was credited for time spent in civil psychiatric pre-trial confinement pending a determination of competence to stand trial? In an unpublished 1 member decision, the Board held that the entire 392 days that Corpuz spent in that civil confinement does count, which pushed him over 5 years.

The Ninth Circuit disagreed. It found that the common meaning of imprisonment does not include civil confinement, but it declined to entirely disregard Corpuz's time in civil psychiatric confinement because Corpuz did receive credit from the sentencing judge for that time. The court found that counting all of it, though, would be unfair because there is no credit for good conduct and the confinement can last a long time compared to typical pre-trial confinement. The court thus attempted to achieve what it determined was the statutory purpose by holding that the immigration judge should determine how long the confinement would have been if there was good time credit. It called this constructive good time credit.

Something tells me there will be a petition for rehearing in this case, although grant of en banc rehearing seems unlikely given Corpuz's situation would seem to be rare and there is no conflicting precedent.

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The Ninth Circuit held that an abstract of judgment for a California Health and Safety Code section 11377(a) conviction that indicates a plea to a criminal count that identifies the substance as a regulated substance under the federal Controlled Substances Act (here, methamphetamine) satisfies the government's burden to prove removability for conviction of a controlled substance offense. It held this was the case even where the abstract itself does not identify the substance (here, counsel for the immigrant obtained amendment of the abstract to remove its specification of the controlled substance).

The panel further disregarded the fact that Cabantac's plea was pursuant to West/Alford because the plea transcript identified the substance as methamphetamine.

The lesson? Correct an abstract of judgment early in the removal proceedings if necessary, but that may not be enough if competent immigration counsel was not involved at the time of the criminal proceedings. (A shameless plug to consult with an attorney such as myself!)

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This decision interprets and applies the Ninth Circuit's 2011 decision in Aguila Montes de Oca to the following question: In determining the facts "necessarily found" by the trier of fact for a particular criminal conviction, may an immigration judge import facts from the factual basis for a separate conviction in the same criminal proceeding? The court said no over Judge Bybee's vigorous dissent.

The permanent resident in this case was serving in the U.S. Marines when he used a government computer to access pornography, at least some of which involved minors. He was court martialed and pled guilty to two counts. The first, under the Uniform Code of Military Justice (UCMJ) Article 92, was for “violat[ing] or fail[ing] to obey any lawful general order or regulation.” The specific order or regulation at issue was Department of Defense (DOD) Directive 5500.7-R, which provides for use of a government computer for authorized purposes only, which does not include accessing pornography (of any type). The second offense Aguilar-Turcios pled guilty to was bringing discredit upon the armed forces in violation of UCMJ Article 134 by “wrongfully and knowingly possess[ing] visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline of the armed forces.” In other words, the Article 92 charge referenced only accessing pornographic websites, while the Article 134 charge specified accessing child pornography. When the judge took Aguilar-Turcios' guilty pleas for the two offenses, the judge questioned him about the factual basis for the pleas. Regarding the Article 92 offense, the judge asked Aguilar-Turcios only to confirm visiting pornographic websites, while the judge asked about pornography involving minors for the Article 134 plea.

Aguilar-Turcios was put in removal proceedings after completion of his sentence and bad-conduct discharge from the Marines. DHS alleged that both of the convictions amounted to aggravated felonies under Immigration and Nationality Act (INA) section 101(a)(43)(I) as convictions for “an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography).” Applying the Ninth Circuit's then-valid missing element rule, the immigration judge found the Article 92 conviction was an aggravated felony and the Article 134 conviction was not and ordered removal. The permanent resident appealed the finding that the Article 92 conviction was an aggravated felony, but DHS unwisely chose not to appeal the finding that the Article 134 conviction was not. While the case was before the Ninth Circuit, the court overruled its missing element rule and issued en banc decision in Aguila Montes de Oca.

Aguila expanded what may be considered as part of the "conviction" when determining whether a particular conviction matches the generic definition of a deportable offense in the INA, i.e., conducting the modified categorical analysis. Previously, the court had held that if a person has been convicted of an offense that is missing an element of the generic definition under the INA, then there never could be a match between the two that would establish deportability. For example, a person convicted of assault could not be deportable for a firearms offense if the assault statute did not include a firearm as at least one means of committing the assault--even if a person in fact did use a firearm to commit the assault. Aguila overruled that precedent and held that a court may consider more than the elements of the statute to determine whether a match exists. It held that a court could also consider any facts necessarily found by the trier of fact in support of the conviction. “If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy the elements of the generic crime, then the factfinder necessarily found the elements of the generic crime."

In Aguila-Turcios then, the government (and Judge Bybee in dissent) argued that facts found for the Article 134 conviction could be considered in determining whether the Article 92 conviction amounted to an aggravated felony (because DHS waived its opportunity to argue that the Article 134 conviction also was an aggravated felony). This would have been a significant enlargement of Aguila, since Aguila specifies that the facts must have been necessary to support the conviction. How could the alleged fact of depiction of minors be necessary to the Article 92 charge when the government did not include it in the allegations and Aguila-Turcios did not admit it? He only needed to admit accessing pornography in general, and that is all he did admit for that offense.

Fortunately, the majority of the panel did not agree with the government and did not use the unsympathetic facts of this case to create bad law. The court held that for a conviction to be an aggravated felony under the INA, the factual basis for that particular conviction must satisfy the aggravated felony definition. Borrowing from another conviction doesn't cut it.

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The Ninth Circuit held that California Penal Code section 69, attempting to deter or resisting an executive officer, is not categorically a crime of violence for aggravated felony purposes. On its face, CPC 69 would seem to be a crime of violence since it may be violated in two ways: (1) by attempting through threats or violence to deter or prevent an officer from performing a duty imposed by law; or (2) by resisting by force or violence an officer in the performance of his or her duty. California jury instructions, however, provide that "violence" in this respect is synonymous with "force" and both "mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act."

The Supreme Court has held that under the first test for determining if an offense is a "crime of violence", 18 USC 16(a) ("an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another") an offense must be an active, violent crime. The Ninth Circuit has previously held that a California battery that requires only an offensive, noninjurious touching does not necessary meet that standard. CPC 69 requires only the same type of battery, so it is not necessarily a crime of violence either.

Although the offense is not a crime of violence under the first test for a crime of violence, the alternative test 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." 18 USC 16(b). The Supreme Court has held that this test, like section 16(a), requires a level of intent of at least recklessness. Resisting an officer under the second prong of CPC 69 is a general intent crime that requires only the intent to resist with at least de minimus force. It does not require intentional use of violent force or reckless disregard of a substantial risk that violent force may be used (by the offender). In other words, a person may be convicted of CPC 69 for nonviolently resisting under circumstances where there is no substantial risk of that resulting in violent force. The court contrasted an Arizona statute that had been interpreted by the Arizona courts to exclude de minimus resistance and which required a substantial risk of injury to the peace officer. CPC 69 thus is not categorically a crime of violence.

The court remanded the case to allow the government to file additional conviction documents to establish that this particular conviction was for a crime of violence. When the case was before the agency, the Ninth Circuit's previous "missing element" rule was in effect and the government may not have had cause to submit documents for the so-called modified categorical analysis. Aguila Montes de Oca overruled the missing element rule after the agency decided the case, so the court found the government should have the opportunity to further contest the case under Aguila. The court rejected the petitioner's argument that Aguila's new rule should be applied only prospectively.

Finally, I would note that the fantastic decision in this case was surely the result of great lawyering by super lawyer Holly Cooper of the UC Davis Immigration Law Clinic.

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On remand from the Supreme Court, Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012), the Ninth Circuit was obliged to vacate its previous determination that an applicant for cancellation of removal under 8 U.S.C. § 1229b(a) could impute his mother's residence to establish the statutory requirement of 7 years of continuous residence.

The Ninth Circuit then reached the noncitizen's alternative argument that his conviction for maintaining a dwelling for keeping controlled substances in violation of 16 Delaware Code section 4755(a)(5) (2002) did not terminate his own period of continuous residence. He had argued it might qualify as a single offense of possession for his own use of 30 grams or less of marijuana, which would not make him deportable and thus not terminate his continuous residence. The court rejected that argument summarily, pointing to the indictment which alleged he maintained the dwelling for cocaine-related crimes and a marijuana distribution crime.

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Ninth Circuit here added a gloss to its previous decision in Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007), which had upheld 8 C.F.R. § 1212.7(d). Section 1212.7(d) requires “extraordinary circumstances” such as “exceptional and extremely unusual hardship” for a 212(h) waiver of inadmissibility for an applicant for admission convicted of a violent or dangerous crime. Mejia had found that this was a permissible limitation on the exercise of discretion even though the standard exceeded 212(h)'s threshold requirement of "extreme hardship."

The gloss added by Rivera-Peraza, and the only thing that made this case worthy of publication, was the recognition that the exceptional and extremely unusual hardship required by § 1212.7(d) does not have to be to a qualifying relative. Hardship to the applicant counts for the purpose of the exercise of discretion. The Board recognized that, but found that the hardship was insufficient to outweigh the applicant's armed robbery conviction. The Ninth thus found no error of law and dismissed the petition.

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The Ninth Circuit held that the Board of Immigration Appeals improperly engaged in fact-finding when it reversed the immigration judge's determination that the petitioner was not inadmissible under 8 U.S.C. § 1182(a)(2)(C) for knowing participation in drug trafficking. The petitioner had attempted to enter the U.S. in his employer's truck on instructions to get parts for the business and to have the tires changed on the truck. Inspectors at the port of entry found marijuana in the gas tank and charged him with inadmissibility (no criminal charges were filed). The immigration judge found the petitioner testified credibly that he had not known about the drugs. The Board reversed that decision based on testimony by one of the Customs and Border Protection officers who conducted the inspection. The testimony consisted of estimates and proffered opinion, but the immigration judge had declined to make findings of fact based on that testimony. By making findings of fact in the first place, the Board acted contrary to the limits on its authority under the regulations. The court held the Board should have remanded to the immigration judge for additional findings of fact.

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The Ninth Circuit held that conducting an individual hearing on the merits of a cancellation of removal application by videoconferencing does not necessarily violate the constitutional right to due process or the statutory right to a fair hearing. It might, though, depending on the circumstances of a particular case. The court focused on the constitutional due process right without addressing the statutory right under 8 U.S.C. § 1229a(b)(4)(B).

The court held that whether a particular hearing by videoconferencing violates due process depends on the degree of interference caused by the technology and the degree of prejudice that resulted. It found the noncitizen in this case failed to establish that the use of videoconferencing may have affected the outcome.

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For a review of the potential arguments against the use of videoconferencing, read the American Immigration Council's advisory at http://www.legalactioncenter.org/sites/default/files/docs/lac/lac_pa_121203.pdf. The memo was last updated in 2003, but it still has useful suggestions.

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With seven judges dissenting, the Ninth Circuit voted not to re-hear en banc the panel decision in Planes v. Holder (discussed in my previous blog post). Thus, the rule in the Ninth Circuit is that a noncitizen may be removed from the U.S. if found guilty of a crime even if the conviction is not final because there is a pending direct appeal as of right. And if the noncitizen wins his or her appeal of the criminal conviction after removal? The only apparent option is for the noncitizen, now outside of the U.S., to attempt to request discretionary reopening of the removal order, which the Board of Immigration Appeals may deny (and has denied in some cases).

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The Ninth Circuit rejected the Board of Immigration Appeals' published opinion in this case, Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006), and held that misprision of a felony in violation of 18 U.S.C. § 4 is not categorically a crime involving moral turpitude. The Ninth Circuit found the Board's analysis was conclusory and flawed, so it did not defer to the Board's decision.

Misprision of a felony requires knowledge of the commission of a felony and concealment of that felony and not making it known to the authorities. The Board found this was a crime involving moral turpitude (CIMT), but the Ninth held it failed to meaningfully address one of the key requirements for a CIMT: that the offense be inherently base, vile, or depraved.

The Ninth Circuit held the fact that misprision requires concealment does not satisfy the requirement of baseness, vileness, or depravity. This is the case because misprision does not require the specific intent to conceal or obstruct justice. It is enough to know of the crime and do something that conceals it--even if concealment of the crime is not intended.

Although the Ninth Circuit held that misprision does not categorically involve moral turpitude, it also held that it could involve it in some cases. Thus, the Ninth Circuit remanded for the Board to determine in the first instance whether Robles-Urrea's conviction necessarily rested on facts that involved moral turpitude.

The most interesting thing about the remand, though, is that by indicating that the Board would have to look only to the narrow set of documents that form the record of conviction, the Ninth implicitly rejected the third step of Matter of Silva-Trevino, which authorizes inquiry beyond the record of conviction. This is a surprisingly beneficial application of Aguila Montes de Oca.

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