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Category: 9th Circuit

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The Ninth Circuit held that the decision as to whether a conviction is a "particularly serious crime" to bar asylum and withholding of removal is an inherently discretionary decision. Thus, the court will review a finding by the Board of Immigration Appeals that an offense is a particularly serious crime for abuse of discretion. The court found no abuse of discretion here where the immigration judge and Board reviewed the Statement of Facts from the guilty plea, took testimony from the applicant, and decided that a fraud conspiracy that resulted in a loss to the victims of nearly $2 million amounted to a particularly serious crime.

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This decision extends the Supreme Court's decision in INS v. St. Cyr, which held that permanent residents who pled guilty to a removable offense prior to Congress' enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 remained eligible for discretionary relief from removal under former section 212(c) even though IIRAIRA repealed that form of relief. Although St. Cyr concerned a resident who pled guilty, Peng extends that holding to permanent residents who were convicted at trial of a crime involving moral turpitude who can plausibly argue they relied on the availability of 212(c). The decision rejected, however, Peng's argument that IIRAIRA's creation of a 7 year residence requirement for relief from removal under 212(h) was impermissibly retroactive.

Here, Peng could plausibly argue reliance on the existing state of the pre-IIRAIRA law when she decided to go to trial. A guilty plea to the charged offense (conspiracy to defraud the former INS, 18 U.S.C. § 371 (1995)) would result in no immigration benefit. She would be deportable no matter whether she pled guilty or was convicted at trial. Likewise, she would be eligible for 212(c) as a discretionary form of relief from deportation no matter whether she pled guilty or was convicted at trial. However, the option of proceeding to trial offered the benefit of the possibility of acquittal. In choosing that option, she plausibly could be said to rely on the availability of 212(c) even if the jury convicted her and the judge sentenced her to the maximum potential sentence. The maximum potential sentence was 5 years, and the aggravated felony definition at the time required a sentence to more than 5 years (an aggravated felony would have disqualified her from 212(c)).

The court contrasted this situation with that of a resident charged with an offense that could be an aggravated felony depending on the sentence imposed by the judge. Since it would leave the sentence in the hands of the judge and thus leave the question of whether it was an aggravated felony in the hands of the judge, a decision to go to trial would preclude a showing of plausible reliance.

Although the court found the repeal of 212(c) impermissibly retroactive because Peng plausibly could have relied on 212(c) as relief from removal, it dismissed without much explanation her argument that IIRAIRA's changes to 212(h) were not impermissibly retroactive. Adjustment of status with a waiver under 212(h) was another form of discretionary relief that was available to Peng when she decided to go to trial in her case. She could have relied on it to the same extent she relied on 212(c). Congress, however, later imposed a requirement of 7 years of continuous residence prior to the initiation of removal proceedings for a permanent resident to be eligible for 212(h). That disqualified Peng from something she plausibly could have relied upon, so it is not apparent why the court would reach a different conclusion. The brief treatment in the opinion mentions that she already had permanent resident status at the time she went to trial and seems to suggest that makes a difference. Perhaps the panel did not understand that adjustment with a 212(h) waiver is a long-recognized form of discretionary relief not just for non-residents, but also for residents like Peng.

Finally, the court rejected Peng's argument that imposing a 7 year continuous residence requirement on aliens previously granted permanent resident status, but not on those who have not previously held permanent resident status, violates equal protection. It cited Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) for the proposition that residents have greater rights so Congress may rationally hold them to a higher standard.

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The Ninth Circuit held that a conviction under California Penal Code § 647(b) for soliciting an act of prostitution is categorically a crime involving moral turpitude. (The opening paragraph of the decision is misleading, since the body of the opinion makes clear the petitioner is challenging whether he is deportable for two crimes involving moral turpitude--not the denial of voluntary departure.)

No published Board decision holds that soliciting a prostitute is a crime involving moral turpitude (CIMT), but the panel relied on a 61 year-old decision that found the underlying act of prostitution is a CIMT, Matter of W., 4 I&N Dec. 401, 401-02 (CO 1951). (The Ninth Circuit mistakenly identified it as a Board of Immigration Appeals decision, but it actually is a Central Office decision.) The court also relied on a 46 year-old decision holding that renting a room for prostitution is a CIMT. Lambert, 11 I&N Dec. 340, 342 (BIA 1965). The panel found it could not distinguish solicitation from either of those offenses.

The reliance on hoary old cases like these is troublesome, particularly for a definition that is dependent on contemporary mores. Doubtless the adjudicators who decided the cited cases in 1951 and 1965 would consider most of what is on network television today to be morally turpitudinous. Certainly views on prostitution have evolved--from an emphasis on morality to an emphasis on protecting against exploitive conditions.

More significantly, it is hard to say that adult prostitution is a crime involving moral turpitude when it is legal and regulated in so many developed countries, including Canada, France, Germany, Israel, Hong Kong, Singapore, Ireland, and several other European countries. Apparently these countries do not view the profession as intrinsically evil as is generally the case with crimes involving moral turpitude. Indeed, there is no U.S. federal law that generally prohibits prostitution and it is legal in some counties in Nevada. How can something be legal in one state (not to mention other highly developed countries) yet be morally turpitudinous? The panel decision and the ancient cases it cited do not grapple with that question.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/28/10-70091.pdf.

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The Ninth Circuit held that a conviction for California Penal Code § 422 categorically is a crime involving moral turpitude. It reached this conclusion because (1) the conviction requires threats of death or great bodily injury, and actual intentional infliction of death or GBI would involve moral turpitude; (2) the statute also requires the threat to be of a nature that reasonably places the victim in sustained fear; and (3) a § 422 conviction requires the specific intent by the perpetrator that the victim take the statement as a threat, and the court deferred to the Board's judgment that this mens rea is a significant factor.

The outcome in this case is not surprising, but I note that the Ninth Circuit did not cite former Attorney General Mukasey's precedential definition of a crime involving moral turpitude in Matter of Silva-Trevino as a "reprehensible act" accompanied by a scienter of at least recklessness. Instead, like other recent Ninth Circuit cases, it defines crimes involving moral turpitude with reference to older definitions (here, the redundant “(1) is vile, base, or depraved and (2) violates accepted moral standards”). It seems everybody recognizes Silva-Trevino deserves no respect...

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/08-71277.pdf.

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In a per curiam decision, the Ninth Circuit held that a juvenile offender has a conviction under 8 USC § 1101(a)(48)(A) if he is charged as an adult and receives the conviction after attaining the age of majority, since in that case the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-504, would not apply.

The court also summarily found no equal protection violation in distinguishing between juvenile offenders depending on whether they reach the age of 18 before adjudication or conviction and depending on whether the conviction is as a juvenile or adult (rather than the offender's age at the time of the offense). The court did not even address the petitioner's arguments, if there were any.

When this opinion was first issued in January 31, 2011, the court had held that 212(c) was not available for lack of a comparable statutory ground of inadmissibility. The court withdrew and reissued the decision, overruling the 212(c) holding based on Judalang and leaving the rest of the decision as it was.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/02/13/07-72316.pdf.

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The Ninth Circuit published orders in five cases directing the Attorney General to state whether he would exercise prosecutorial discretion in those cases and to state the effect that would have on them. ICE Director John Morton’s June 17, 2011, memo on prosecutorial discretion prompted the court to issue the orders. In each case, the court already had denied the petition for review and the petitioner had filed a petition for rehearing. The petitioners all had favorable discretionary factors and no known criminal convictions. Judge O'Scannlain dissented from each order, contending that separation of powers prevented the court from even asking the Attorney General the question.

Read the orders at:

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The Ninth Circuit held that a stipulated facts trial is functionally equivalent to a guilty plea for purposes of eligibility for 212(c) under the Supreme Court's decision in St. Cyr. In this case, the noncitizen was charged with heroin importation and possession with intent to distribute. She had brought the heroin back to the U.S. in 1980 after using it in Thailand to manage pain from a surgery she had there. In the criminal proceedings, she waived many of her constitutional rights and agreed to a court trial where she stipulated to possession of $100k worth of heroin with the intent to use it exclusively for herself. The criminal court found her guilty of importation and not guilty of possession with intent to distribute.

DHS put her in removal proceedings in 2005 based on inadmissibility for a controlled substance offense. The immigration judge and BIA found her ineligible to waive her inadmissibility under former section 212(c), which was repealed in 1996. She would have been eligible for 212(c) if she had been put in exclusion proceedings 20 years earlier, and clearly would be eligible even now--if she had entered a guilty plea. Given retroactivity concerns, the Supreme Court determined in St. Cyr that 212(c) remains available for persons who pled guilty prior to its repeal because they presumably would be relying on its availability when they gave up their constitutional rights. The BIA held this case was distinguishable because the Tyson had a court trial instead of pleading guilty.

The Ninth Circuit held that a stipulated facts trial in these circumstances was more like a guilty plea than a contested court or jury trial, since her stipulation virtually assured her conviction on the importation count. In fact, the panel found it was akin to a no-contest plea, which the regulations specifically recognize preserves 212(c) eligibility. 8 C.F.R. § 1212.3(h). The fact that the record evidence of quid pro quo for the plea is weak is not determinative, although the government did benefit by saving resources and she received a relatively light plea.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2012/01/27/08-70219.pdf.

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Yours truly attended the en banc oral argument today in Young v. Holder. Two judges led the questioning, Chief Judge Kozinski and Judge Kleinfeld. Judge Kozinski's questions suggested agreement with the government's argument that a plea to a charging document that alleges commission of an offense in the conjunctive (e.g., transportation, offer to sell, and sale) establishes admission to violating the crime in all of the various alleged ways of committing the offense.

Judge Kleinfeld (a former criminal defense attorney) repeatedly cited the historical practice of charging in the conjunctive and proving or pleading in the disjunctive. In other words, he recognized that prosecutors charge all of the various ways of committing an offense under the statute even where the defendant only committed it in one way. He thus strongly suggested that a plea to a complaint in the conjunctive established a plea to only one of the offenses.

On the other hand, questions by Judge Kleinfeld and other judges indicated that they might overrule the decision in Sandoval Lua. Sandoval Lua held that an inconclusive record of conviction was sufficient to establish eligibility for relief from removal. Thus, where a defendant is convicted of an offense that could be an aggravated felony or could not be an aggravated felony, Sandoval Lua had held that an ambiguous record was sufficient to avoid ineligibility for cancellation of removal (which is not available for persons convicted of aggravated felonies).

I had predicted the possibility of Sandoval Lua being overruled in a previous blog post, but certainly hope that I am not proved right. The loss of Sandoval Lua is a troubling possibility, since it is not always possible to obtain crystal clear records of conviction--particularly for convictions from years or even decades in the past.

Watch the oral argument at http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006171

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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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