Skip to content

Category: 9th Circuit

Published on

Today, July 14, 2011, is a dark day for immigration law in the Ninth Circuit. The en banc court overruled Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and held that state rehabilitative relief for a single conviction for possession of a controlled substance does not protect against immigration consequences. Attorneys who watched the brutal oral argument in this case (the video is available on the court's website) anticipated this outcome, but at least it came with a small consolation prize.

The Ninth Circuit held that its decision in Nunez-Reyes would have only prospective effect, citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) as authority for prospective application. Since the decision applies prospectively, Lujan-Armendariz continues to protect noncitizens "convicted" of simple possession before Nunez-Reyes's publication date of July 14, 2011. For noncitizens convicted after that date, Lujan-Armendariz is overruled. (The Court did not address whether noncitizens convicted "on" the publication date would continue to benefit from Lujan.)

Significantly, the language of Nunez-Reyes strongly supports the idea that the critical fact is whether the noncitizen pled guilty or no contest before the publication date. Persons who pled before today gave up their constitutional rights (to trial by jury, to confront witnesses, etc.) in reliance on Lujan-Armendariz, so they should not be "hoodwinked" into being deported for doing so. Whether they actually completed the requirements for rehabilitative relief before today, however, would seem to be irrelevant. Thus, expungements and other rehabilitative relief obtained after today should still be effective, so long as the plea occurred before today. The court did not explicitly say this, but the reasoning implies it.

Nunez-Reyes also overruled the court's recent decision in Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), and held that state rehabilitative relief did not protect against immigration consequences for a conviction of being under the influence of a controlled substance. Unlike Lujan, though, the court overruled Rice retroactively because it was such a recent decision that there was less reliance on it. It also distinguished being under the influence from possession, holding that the former was not a lesser offense (even though in California the former is a misdemeanor and the latter can be a felony). The court reasoned that dangerous behavior might accompany being under the influence of methamphetamine, but would not necessarily accompany simple possession. In short, though, rehabilitative relief does not protect against removal for being under the influence of a controlled substance, even if the plea occurred before today.

Nunez-Reyes does suggest, though, that possession of paraphernalia IS a lesser offense to possession (at least where the defendant pleads down from possession to paraphernalia). So, noncitizens would continue to benefit from Lujan if the paraphernalia plea occurred before today.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf

Published on

The Ninth Circuit addressed the statutory definition of a "conviction" for immigration purposes and held that it includes a formal judgment of guilt entered by a court, even if the case is still on direct appeal or if sentencing is not final. The court justified this departure from a long line of precedent, including a Supreme Court memorandum decision, based on IIRAIRA's creation in 1996 of a statutory definition of "conviction." The Ninth held that the plain language of the statute mandated its holding.

I invite my readers to suggest arguments on why this holding might be wrong.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/07-70730.pdf

Published on

"Clarifying" its previous opinion in Cheuk Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010), the Ninth Circuit held that a noncitizen's admissions in removal proceedings could establish the link between the offense alleged in a charging document and an abstract of judgment for purposes of determining whether the conviction was for a removable offense.

S-Yong had held that admissions alone were not sufficient to meet the government's burden of proving removability (the record did not contain any conviction documents in that case). The government in Pagayon, however, did present a charging document alleging possession of methamphetamine and an abstract of judgment that indicated conviction of Health and Safety Code sec. 11377(a) for possession of an unspecified drug.

The Ninth Circuit held that Pagayon's response that possession of methamphetamine was his conviction met the government's burden of establishing that the conviction was for a deportable controlled substance offense. (Not all drug convictions involve substances that trigger deportability under federal law.)

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/24/07-74047.pdf

Published on

The Ninth Circuit held here that a conviction for California Penal Code § 12025(a) categorically qualifies as a deportable firearms offense under INA 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

Section 12025(a) penalizes offenses related to carrying a concealed firearm upon the person or in a vehicle or causing a weapon to be concealed in a vehicle. The state courts have interpreted this broadly, holding, “[I]t is theoretically possible for a person to cause to be concealed a firearm that is not in his or her possession, custody, or control, such as by conduct that conceals from view a firearm that is in the possession and control of another person.” People v. Padilla, 98 Cal. App. 4th 127, 138 (2002).

The Ninth Circuit held that even this constructive possession, however, amounted to unlawful "possession" of a firearm for purposes of the grounds of deportability. The court noted the laundry list of offenses covered by the firearms deportability statute and opined that it evidenced a congressional intent to construe possession broadly. Judge Rymer dissented from this holding.

The court also addressed the antique firearms exception to the deportability statute, since California law does not contain the same exception. It held that the antique firearms exception is an affirmative defense, which need not be considered under the categorical analysis--at least where the noncitizen does not assert that it applies.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-74371.pdf

Published on

Typically, I blog about only immigration opinions that relate to criminal convictions, but I had to address this recent decision on the so-called "permanent bar."

The Ninth Circuit held that the noncitizen was inadmissible under INA 212(a)(9)(C)(i)(I) because she reentered the U.S. without admission after a prior period of unlawful presence of more than a year. It said the unlawful presence accrued between 1981 and 1983. The only problem with that finding is that periods of time before April 1, 1997, do not count as "unlawful presence" for purposes of section 212(a)(9)(C)(i)(I), at least according to USCIS. See Adjudicator's Field Manual, 40.9.2(a)(9)(a).

USCIS's interpretation is well founded given the law that created section 212(a)(9)(C)(i)(I) provided for a general effective date of April 1, 1997, and did not specify a different effective date for that particular provision. See IIRAIRA sec. 301(b), 309(a). Indeed, the statutory term "unlawful presence" did not exist in 1981, 1983, or any other time before the enactment of IIRAIRA.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/09-72059.pdf.

Published on

The Ninth Circuit remanded this case to the BIA to determine whether a conviction for failure to register as a sex offender in violation of California Penal Code section 290(g)(1) is a crime of moral turpitude.  The BIA in this case had held that it categorically was a CMT pursuant to its decision in Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007).

After its decision, however, the Ninth Circuit issued a contrary decision regarding the Nevada sex offender statute, finding that it was the underlying sex offense and not the failure to register that constituted a CMT.  See Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir.2008).

The Attorney General also issued a decision casting doubt on Tobar-Lobo. The AG's decision in Silva-Trevino held that an offense must have some level of scienter (criminal intent) to qualify as a CMT.  California penalizes failure to register even if it is due to mere forgetfulness, which is in tension with the requirement that a CMT have an element of intent (at least of recklessness, rather than mere negligence).

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/05/11/07-71988.pdf

Published on

The court held that a felony violation of Revised Code of Washington section 9A.44.089 (sexual contact with a 14 or 15 year-old by a person at least 48 months older) constitutes a crime of child abuse within the meaning of the ground of deportability at INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).

The opinion telegraphed its outcome by gratuitously describing the offense as "child molestation." The elements of the offense described by the court, however, appear to permit conviction for consensual sexual activity between a 15 year-old and a 19 year-old.  Consensual sex with a 15 year-old may be unlawful, but it only became so in the U.S. over the last century.  It is hardly equivalent to the types of crimes one normally thinks of upon hearing the term "child molestation."

Moreover, little analysis accompanies the opinion.  The primary question is whether the offense amounts to "abuse."  The opinion answers the question simply by stating the conclusion: "Section 9A.44.089 makes illegal the act of touching the sexual or other intimate parts of the victim when the victim is either 14 or 15 years old and the perpetrator is at least forty eight months older. This conduct, at a minimum, constitutes maltreatment of a child and impairs the child’s mental wellbeing."  This is hardly obvious in the case of consensual sexual activity between a 15 year-old and a 19 year-old.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/31/09-72766.pdf

Published on

In this opinion, the Ninth Circuit provided more details about the bond hearing required under Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).  Casas-Castrillon provided for a bond hearing before an immigration judge for detained aliens while they petition for review of an administratively final order of removal.

Singh held DHS has the burden of proving by clear and convincing evidence that the alien is a flight risk or a danger to the community.  Casas-Castrillon had held DHS had the burden of justifying continued detention, but did not state the showing required.  Clear and convincing is a heightened standard appropriate to the interests at stake when a person is detained in civil proceedings for several years.

Singh also held that the agency must provide contemporaneous record of the bond proceedings, such as a audio recording.  Immigration judges typically do not record bond proceedings and instead just prepare a memorandum if the alien chooses to appeal.  The current practice severely impedes judicial review of errors or due process violations.  The court's decision recognizes this, while not imposing the additional burden of requiring a transcription of the proceedings.

Singh also noted that the mere existence of a criminal record is not enough to deny bond.  Instead, the alien must constitute a present danger to the community.  So, the adjudicator must consider the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/31/1015715.pdf

Published on

In Diouf II, the U.S. Court of Appeals for the Ninth Circuit held that prolonged detention under 8 U.S.C. 1231(a)(6) raises serious constitutional concerns, which require additional procedural safeguards beyond those provided under the regulations. Section 1231(a)(6) authorizes detention of an alien subject to a removal order if the government is not able to physically remove the alien within the initial 90 days after the order becomes final.

Under the regulations, ICE officers periodically determine whether aliens subject to final removal orders should remain in detention or be released on bond or other conditions. Detention under this regime may continue for years.  ICE follows these procedures because the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678 (2001) that the government could not indefinitely detain aliens subject to final removal orders, at least where removal is not reasonably foreseeable.

Diouf II, however, holds that the procedures adopted by ICE are not sufficient where the detention significantly exceeds six months.  It holds that an alien subject to final removal order must receive a bond hearing before a neutral immigration judge where removal is not imminent and the alien has been detained for six months. Further, it holds that the alien should receive bond unless ICE establishes to the satisfaction of the immigration judge that the alien is a flight risk or poses a danger to the community.

These are the same safeguards that the Ninth Circuit found necessary for aliens subject to prolonged detention under 8 U.S.C. 1226(a) (detention during direct challenge to a removal order).  See Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/09-56774.pdf.

510-835-1115