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Category: Jurisdiction

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The Board held that mere submission of a conviction document by DHS is not enough to establish its admissibility, at least where the respondent denies the alleged conviction. The government must provide some form of authentication, and it must be sufficiently reliable to comport with due process. The Board held that 8 C.F.R. § 1003.41(a), (b), and (c) establish safe harbors for conviction documents that are originals, certified copies, and electronic records certified in writing by both the state repository and DHS, but it also held that those were not the only admissible conviction documents.

In this case, DHS submitted an electronic conviction record that was not certified by either the court that generated it or by the DHS officer who received it. Nor was there any attempt to authenticate it in any other way. The Board therefore found that the document was not admissible and remanded for further factfinding.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3739.pdf.

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Disagreeing with the Ninth Circuit's decision in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th 2007), the BIA held in this Fourth Circuit case that a conviction for harassing conduct in violation of California Penal Code § 646.9 is categorically a crime of violence under 18 U.S.C. § 16(b) (thus making it an aggravated felony with a sentence to 365 days or more). The Board therefore reaffirmed its decision in Matter of Malta, 23 I&N Dec. 656
(BIA 2004) in jurisdictions other than the Ninth Circuit. The decision is weak, however, because it fails to meaningfully address the primary rationale for Malta-Espinoza.

The primary rationale for finding that PC § 646.9 is not categorically a crime of violence is that it can be committed by long-distance harassment. Malta-Espinoza cited published California cases where the convictions were for sending letters and pictures through the mail. However, a crime of violence under § 16(b) requires "a substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense." How could violent physical force be used in the course of mailing a letter?

The Board's cursory answer is that sometimes a violent physical encounter follows long-distance harassment. It cites statistics to back up this assertion. I have no doubt that sometimes violence follows long-distance harassment, but that is beside the point. Under well-established California law, the offense would be complete upon the mailing of the harassing letters (even if the sender was incarcerated and even if the recipient is out of the country). That is an offense, and the sender could be immediately prosecuted for it. And, of course, there is no way that sending a letter in-and-of itself carries a substantial risk that violent physical force could be used in committing THAT offense. PC § 646.9 thus does not categorically involve a substantial risk that violent physical force will be used.

If the sender of a harassing letter later shows up at the victim's doorstep to engage in more harassment (as in the example cited by the BIA), then that is a separate offense that likely would involve a substantial risk of the use of violent physical force to commit the offense. But that does not categorically establish that all PC § 646.9 convictions involve conduct that carries a substantial risk of violent physical force. Some may, some clearly would not, which is why the Board should have resorted to the modified categorical approach to determine if the offense underlying this particular conviction involved a substantial risk.

The Fourth Circuit may have a chance to review the Board's decision. Hopefully, it will engage in a more careful analysis. The consequences of the decision are severe. Since it determined the conviction was an aggravated felony, the Board found the respondent ineligible for relief from removal. He thus will lose his green card and be removed and probably will never be able to return to the U.S. All without review of the record of conviction to determine the actual conduct that he pled guilty to.

Finally, note that this decision, and the Malta decision that preceded it, concern only "harassing" conduct in violation of PC § 646.9. The statute also penalizes "following," which neither decision addressed. Given the rationale of this decision, however, it is hard to see how following--even from a great distance--would not be found to be a crime of violence.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3738.pdf.

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The Board of Immigration Appeals held that a conviction under California Penal Code § 311.11(a) for possession of child pornography was an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). It also held that the circumstances surrounding the offense made it a particularly serious crime that barred withholding of removal.

The Board noted that the aggravated felony definition at section 1101(a)(43)(I) covers offenses described in 18 U.S.C. § 2252(a)(4) (punishing knowing possession of visual depictions of minors engaged in sexually explicit conduct) and found that California Penal Code § 311.11(a) was an offense described by the federal statute. The Board did not address, however, the fact that the California law is seemingly broader than the federal offense. The California statute explicitly penalizes simulated sexual conduct, but the federal statute does not. Unless case law has interpreted these statutes to mean essentially the same thing, there is not a categorical match between them.

Absent a categorical match, the Board should have determined whether the modified categorical approach could be used to determine if the record of conviction established a conviction that matched the federal definition. The Board did not do that analysis since it appeared to view the offense as a categorical aggravated felony. This is a potential basis for challenge.

The Board also reviewed the nature of the crime and individual circumstances of the offense and found that it was a particularly serious crime that barred withholding of removal. It agreed that possession of child pornography was a less serious offense than producing or distributing it, but nonetheless found it to be a very serious offense. The Board found that persons who downloaded the material created a demand for its production. It also noted the continuing harm to the child victims that occurs every time someone downloads it. The Board also considered the circumstances of the respondent's offense and placed particular emphasis on the fact that the respondent made multiple downloads of the material.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3736.pdf.

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In a Christmas gift to a couple of my clients, the Supreme Court rejected the Board of Immigration Appeal's statutory comparability test for use of former section 212(c). Since 212(c) refers to inadmissibility, the test provided that the waiver is available for a ground of deportability only if the statutory text is substantially similar to the text of a ground of inadmissibility. The Supreme Court, in a rare unanimous decision, convincingly demonstrated that the Board's test was untethered to the plain language of 212(c) and that it was arbitrary and capricious. The comparability test is arbitrary and capricious because determining whether a ground of deportability is too broad or too narrow has nothing to do with the immigrant's fitness to remain in the U.S. In other words, the inclusion of too many or too few other crimes in a ground of deportability is irrelevant. The Court therefore held the Board's rule did not survive even the deferential review given to it under Administrative Procedure Act.

The Court noted the Board was free to develop a new rule, but the reasoning behind the Court's decision suggests a rule that focuses on the immigrant's actual conviction. If it would make an immigrant inadmissible, then it should to be waivable under 212(c) even for a charge of deportability. The Court did not actually hold that, but indicated that such a rule would not be irrational. Hopefully, the Board will get the hint.

Read the opinion at http://www.supremecourt.gov/opinions/11pdf/10-694.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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The Ninth Circuit amended its earlier decision in this case and denied rehearing. It held that counsel's concession at the pleading stage that the respondent was removable for conviction of possession of cocaine for sale under California Health and Safety Code section 11351 was sufficient to establish removability (at least absent contradictory evidence). The only evidence in the record was a docket sheet filed by DHS that showed a conviction for 11351, but which did not identify the substance involved. That would not have been enough if respondent's counsel had denied the allegations and charge of removability.

The court distinguished admissions made by the respondent in the later evidentiary phase of the removal proceedings, which are not sufficient on their own to establish removability under the modified categorical approach. At the pleading stage, on the other hand, an admission predictably results in DHS not introducing evidence to support its charges. In short, the respondent should not complain about the insufficiency of the evidence when his counsel's admissions obviated the need to present that evidence. (Probably, the unsubmitted conviction documents in this case were sufficient and the only strategy was to buy time for post-conviction relief, which obviously was not successful.)

The noncitizen also advanced meritless arguments about equitable estoppel (because USCIS negligently had granted him permanent resident status previously despite knowing about the possession for sale conviction) and 212(h) eligibility (despite the fact that the waiver is not available for controlled substance convictions other than simple possession of 30 grams or less of marijuana).

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/23/07-70118.pdf

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In Matter of Islam, the Board adhered to its previous decision in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), interpreting the ground of deportability for conviction of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct.

The Board held that the respondent's convictions in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards at several retail outlets on five separate occasions over the course of a day did not arise out of a “single scheme of criminal misconduct.” Although all of the crimes occurred on a single day and all followed a similar modus oparandi, this was not enough under Adetiba's rule.

Under Adetiba, Board held that a single scheme "refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct. The related question is whether there is enough time after each crime for the person to reflect on it and disassociate from the criminal activity.

In deciding to follow Adetiba, the Board declined to apply the more expansive interpretation of the Second Circuit even within that circuit, citing its authority to interpret ambiguous statutory phrases despite previous federal court authority to the contrary. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3733.pdf.

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The Ninth Circuit upheld the denial of relief from removal for lack of good moral character The immigration judge and BIA found the applicant lacked good moral character because he had 7 or 8 DUI convictions spanning 23 years, including one that resulted in an 8 month prison sentence immediately before he was put in removal proceedings. He also continued to drive without a license even after he was put in proceedings.

The applicant was seeking registry, a form of relief for persons who have continuously resided in the U.S. since before 1972 and who have good moral character and no disqualifying acts. The court found that the immigration judge properly considered past conduct to determine the applicant's current character, even though registry does not require good moral character for a specified period of time.

Given the egregious facts of this case, the outcome was not surprising. The opinion is significant only because the Ninth Circuit found jurisdiction to review the good moral character finding at all. The Act prohibits judicial review of discretionary decisions specified to be in the authority of the Attorney General. The ultimate decision to grant registry is specified to be in the AG's discretion, but the underlying decision regarding whether good moral character exists is not. Thus, the court found it could review that determination.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/11/07/06-71680.pdf

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