Skip to content

Category: Jurisdiction

Published on

The Board held that California Penal Code section 314(1) (every person who willfully and lewdly exposes his person or private parts in any public place or in any place where there are present other persons to be offended or annoyed is guilty of a misdemeanor) is categorically a crime involving moral turpitude (CIMT). Unlike other Board cases that held simple indecent exposure was not a CIMT, the Board held that indecent exposure coupled with the element of lewd intent made PC 314(1) categorically a CIMT.

In reaching that conclusion, the Board rejected the contrary interpretation of the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) that PC 314(1) is not categorically a CIMT. It invoked authority to interpret the CIMT definition pursuant to Brand-X and held that the interpretation of lewdness for PC 314(1) by California courts would always involve moral turpitude. It rejected an argument that nude dancing at a bar might be prosecuted under PC 314(1), and that such dancing would not be a CIMT, as unrealistic and contrary to the California Supreme Court's decision in Morris v. Municipal Court, 652 P.2d 51, 59 n.13 (Cal. 1982).

DOWNLOAD (PDF, 39KB)

Published on

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.

DOWNLOAD (PDF, Unknown)

Published on

This case clarifies the law regarding the particularly serious crime (PSC) bar to asylum and withholding of removal for cases arising in the jurisdiction of the Third Circuit Court of Appeals.

In Alaka v. Attorney General, 456 F.3d 88 (3d Cir. 2006), the Third Circuit held that an offense must be an aggravated felony to be a PSC for purposes of withholding of removal. However, the Board reached the opposite conclusion the following year in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). Four federal circuit courts, including the Ninth, have deferred to N-A-M- after finding ambiguity in the statutory language of the PSC-bar to withholding.

In this case, the Board considered the question whether it would continue to follow Alaka in cases arising within the Third Circuit. The answer is no: the Board concluded that because the Third Circuit did not hold in Alaka that the statutory language in section 241(b)(3)(B) is ambiguous, the circuit court is required to defer to the Board’s interpretation of the statute in N-A-M-. Thus, in all circuits, an individual need not have been convicted of an aggravated felony to be subject to the PSC-bars for asylum and withholding of removal.

DOWNLOAD (PDF, 29KB)

Published on

The respondent in this case was a long-time LPR indicted by a federal grand jury on charges of bulk cash smuggling.  Post-indictment but pre-conviction, he returned to the United States from a trip abroad and was paroled into the country for prosecution.  He was convicted the following year.

DHS then initiated removal proceedings, charging him with inadmissibility under section 212(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude.  The IJ terminated the proceedings, reasoning that the DHS had not met its burden of establishing that the respondent was seeking admission because, at the time he sought entry into the US, he had not yet been convicted of the crime.

The Board reversed.  Under section 101(a)(13)(C) of the Act, an LPR shall only be considered an applicant for admission if he falls within one of six enumerated categories, including aliens who have committed an offense under section 212(a)(2).  The Board held that because the respondent in this case was paroled into the country for prosecution, DHS could rely on his subsequent conviction to sustain its burden of proving that he was properly charged as an arriving alien.  In reaching this conclusion the Board reasoned that an application for admission is a continuing application and admissibility is determined at the time the application is considered before the IJ, not at the time the alien first presents himself for inspection.  Thus, following this case, when DHS is confronted with a returning LPR who is suspected of criminal activity but has not yet been convicted, it may parole him into the country for purposes of prosecution and rely on the results of the prosecution for purposes of applying section 101(a)(13)(C) in future removal proceedings.

Board member Patricia Cole dissented from the opinion, reasoning that the plain language of section 101(a)(13)(C) demands that the determination of whether a returning LPR is seeking admission must be made at the time he presents himself at a port of entry based on the information then available to DHS.

DOWNLOAD (PDF, 76KB)

Published on

This case is a welcome clarification of the exception to section 237(a)(2)(B)(i), the controlled-substance ground of removability, where the respondent’s conviction is for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.”

The respondent in this case was convicted in 2010 of simple possession of less than 10 grams of marijuana and possession of drug paraphernalia (specifically, a plastic baggie in which the marijuana was contained) in violation of Arizona law. In bond proceedings, the DHS asserted that the convictions made the respondent removable under section 237(a)(2)(B)(i) and thus subject to mandatory detention under section 236(c)(1)(B). The Immigration Judge disagreed, finding that the respondent was not removable under section 237(a)(2)(B)(i) because her convictions fell under the simple-possession exception.

On appeal of the custody determination, the Board rejected the government’s argument that the respondent could not benefit from the exception to section 237(a)(2)(B)(i) because she had been convicted of two separate state offenses. The Board held that the term “single offense” in section 237(a)(2)(B)(i) describes the totality of an individual’s acts on a single occasion, rather than a generic crime, and thus calls for the “circumstance-specific” approach adopted by the Supreme Court in Nijhawan v. Holder, 557 U.S. 29 (2009). The Board held that the exception therefore applies to an individual convicted of more than one statutory offense so long as each offense arose from a single act of simple marijuana possession. The Board further held that the individual need not even have been convicted of simple marijuana possession to qualify for the exception: the exception applies to a conviction, such as possession of drug paraphernalia, if the acts that led to it were closely related to simple possession or ingestion of 30 grams or less of marijuana.

Lastly, the Board rejected the government’s argument that the respondent’s record of conviction left open the possibility that the marijuana baggie was possessed for purposes of sale, not possession. The Board reaffirmed prior case law holding that, to establish removability under section 237(a)(2)(B)(i), the government bears the burden of proving the conviction in question does not fall under the simple-possession exception and that an inconclusive record will not satisfy the burden.

DOWNLOAD (PDF, 27KB)

Published on

This case supplies a definition for the phrase “crime of stalking” under INA § 237(a)(2)(E)(i). Although the phrase is not defined by the Act, the Board held that it should be given its “ordinary, contemporary, and common meaning,” which is: (1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death. (The Board left open the question whether, to qualify as a crime of stalking, there must also be a fourth requirement that the conduct actually caused the victim to be placed in fear of bodily injury or death.)

Applying this definition, the Board held that California Penal Code § 646.9 is a crime of stalking under § 237(a)(2)(E)(i) because it requires proof that the defendant “willfully, maliciously, and repeatedly follow[ed] or willfully and maliciously harasse[d] another person and . . . ma[de] a credible threat with the intent to place that person in reasonable fear for his or her own safety, or the safety of his or her immediate family,” thereby satisfying all three elements of the generic crime.

Notably, the Board commented in a footnote that at least one California Court of Appeal decision holds that the term “safety” in Penal Code § 646.9 includes “endangerment or hazard” in addition to physical safety. This leaves open potential arguments that the statute is not a categorical match with INA § 237(a)(2)(E)(i). Nevertheless, the Board noted that in this particular case the respondent had not argued, nor was there any evidence, that the fear experienced by his victim was anything other than a fear of physical safety.

DOWNLOAD (PDF, 35KB)

Published on

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).

DOWNLOAD (PDF, Unknown)

Published on

In assessing whether an applicant is barred from asylum or withholding removal because there are serious reasons to believe that the applicant has committed a serious nonpolitical crime before arriving in the U.S., the Board held that the seriousness of the criminal acts should be balanced against their political aspect.

E-A- participated in an attempt to discredit an opposition political party by committing acts of vandalism, assault, and intimidation, including burning buses and destroying merchandise, during the opposition party's events. The Board held that there was a political character to the activities, but that the attempts to discredit were not entitled to as much weight as actions in direct opposition to a party or government. On the other hand, the Board found the activities to involve serious criminality, particularly the arson of the buses. Even though the applicant testified that no one was hurt, it is dangerous to burn buses in the street after forcing the passengers out. Further, the crimes were directed at civilians, not the applicant's political opponents. The Board concluded that on balance the criminal conduct was disproportionate to its political nature, and thus barred asylum and withholding.

DOWNLOAD (PDF, 40KB)

Published on

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.

DOWNLOAD (PDF, Unknown)

Published on

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.

DOWNLOAD (PDF, Unknown)

510-835-1115