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Category: Jurisdiction

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In an unnecessary and disingenuous decision, the Ninth Circuit held in Torres-Valdivias v. Holder that the Board of Immigration Appeals correctly applied the heightened discretionary standard of Matter of Jean to deny adjustment of status to an immigrant convicted of misdemeanor sexual battery, even though the immigrant was not inadmissible for the conviction.

The Jean heightened discretionary standard requires a showing of extraordinary circumstances before granting a waiver of inadmissibility to an alien who has committed a violent or dangerous offense. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Jean was a refugee who had been convicted of manslaughter for shaking a baby to death.  When the former INS put her in removal proceedings, she applied for adjustment of status as a refugee.  She did not dispute that she was inadmissible to adjust status, but requested a discretionary 209(c) waiver to forgive her inadmissibility.  The immigration judge denied the waiver in the exercise of discretion.  The Board reversed and granted the waiver and adjusted her to permanent resident status.  The Attorney General at the time, John Ashcroft, disagreed with the Board and overruled it in a published opinion.  He established a new discretionary standard, which headnote 4 of the decision summarizes:

Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Thus, if you have committed a violent or dangerous crime, the agency will not grant you a discretionary waiver to adjust from refugee status to permanent resident status without extraordinary circumstances (and even then may not).  A later decision, Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), applied the same standard to asylees who apply to adjust from asylum status to permanent resident status.  No published Board decision, though, has ever applied the Jean standard to other types of applicants for adjustment of status, such as family-based or employment-based applicants.  Those applicants adjust pursuant to section 245 of the Immigration and Nationality Act, rather than section 209.

In an unpublished decision, however, the Board applied Jean to deny Torres-Valdivias's family-based application to adjust status.  It found that his misdemeanor conviction for sexual battery was a violent and dangerous crime that triggered the heightened discretionary standard, even though it did not make him inadmissible.  Torres-Valdivias was not inadmissible because his crime qualified for the petty offense exception--it was a misdemeanor with a sentence to imprisonment of not more than six months.   The Ninth Circuit affirmed the Board's decision.

The Board's unprecedented borrowing of a standard is dubious enough in an unpublished decision, but applying the Jean standard to an immigrant who was not inadmissible for his crime was even more questionable.  Remember the language of Jean?  It explicitly applied only to a "discretionary waiver" for inadmissibility (and then only for a refugee).  Torres-Valdivias did not require a waiver, so Jean should not apply.

The heightened standard that does apply to family-based immigrants like Torres-Valdivias is nearly identical to Jean, but by its own terms only applies where the immigrant is inadmissible for a crime and thus requires a waiver of inadmissibility under 212(h).  See 8 C.F.R. 212.7(d).  The regulation that contains this standard provides,

The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.

8 C.F.R. 212.7(d).  Thus, only immigrants who require a 212(h) waiver for criminal inadmissibility are subject to the heightened standard under 212.7(d).  And note that part 212.7(d) was issued under the same Attorney General--John Ashcroft--that decided Matter of Jean, and it was issued after the decision in Jean.  See 67 Fed. Reg. 45402, 45404 (Jul. 9, 2002) (proposed rule).  Indeed, the agency stated in the Federal Register that 212.7(d) was intended to codify Jean.  Id.

The Ninth Circuit blithely ignored all of this and affirmed the Board's unpublished decision.  In doing so, it effectively rendered 212.7(d) moot in the Ninth Circuit.  Under Torres-Valdivias, an immigrant may be denied adjustment of status under the heightened standard even where he is not inadmissible, while 212.7(d) only applies if the immigrant is inadmissible for a crime.  If Attorney General Ashcroft intended the interpretation of Jean adopted by the Ninth Circuit, why did he later promulgate a more narrow regulation at 212.7(d)?  The answer is that he did not intend the Ninth Circuit's interpretation.

At the beginning of this article, I made the inflammatory comment that the panel decision in Torres-Valdivias is not only wrong, but disingenuous, so I'll tell you why.  After the initial decision in the case, published on September 5, 2014, the American Immigration Council and the Immigrant Legal Resource Center filed amicus briefs in support of rehearing, and they were both represented by very able attorneys.  I am certain those attorneys raised the arguments summarized above, and perhaps even better ones.  Yet the amended opinion issued nine months later still asserted that Jean and K-A- compelled the decision, when in fact they don't and the implication of 212.7(d) is that the decision is entirely wrong.  I expect the panel ignored the arguments because of the bad facts in this case (the victim of Torres-Valdivias's sexual battery was his step-sister, who was four years younger than him).

I would say the opinion is results-oriented, except that this bad law was unnecessary.  There already was and still is a discretionary standard of long pedigree that applies to adjustment applications by all immigrants, admissible and inadmissible: the Board's published decision in Matter of Arai, 13 I&N Dec. 494 (BIA 1970).  Arai held, "Where adverse factors are present in a given application for adjustment of status under section 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities."  In other words, the favorable discretionary factors must outweigh the negative factors.  This standard is more flexible and carries less of a presumption toward denial, but it is more than adequate to support the denial of adjustment where appropriate.  In other words, the Board could have denied Torres-Valdivias adjustment under either standard, so the use of the wrong one may have caused no harm here.

Although the panel's decision may not have prejudiced Torres-Valdivias, the problem is that it turned the Board's minor error into a rule of law that will be applied to other cases throughout the Ninth Circuit.  And it is hard to see why it did so.  The prudent course would have been to remand the case to the Board for a reconciliation of Jean, Arai, and 212.7(d).  That is the Board's job, not the Ninth Circuit's.

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In Matter of Pina-Galindo, the Board found that the respondent was ineligible for cancellation of removal for a non-permanent resident under INA 240A(b)(1) because he had been convicted of two or more offenses with an aggregate sentence to confinement of 5 years or more.

The respondent was put in removal proceedings for being present without admission or parole.  He applied for cancellation of removal based on being physically present in the U.S. for 10 or more years and the hardship that removal would cause to a qualifying relative.  The immigration judge found him ineligible for cancellation because he had multiple alcohol-related convictions, including a conviction for driving while intoxicated for which he received a 10-year sentence. Non-permanent resident cancellation requires, among other things, that the applicant not be convicted of an offense listed at INA 212(a)(2).  Section 212(a)(2) lists several crime-based grounds of inadmissibility, including: crimes involving moral turpitude, controlled substance offenses, and multiple criminal offenses with an aggregate sentence to confinement of 5 years or more.  Pina-Galindo was found ineligible for having multiple convictions with an aggregate sentence to 5 or more years.

The respondent argued that the legislative history indicated that Congress only intended to disqualify applicants with convictions that involved moral turpitude or a controlled substance offense, since the Conference Report stated that only aliens inadmissible under INA 212(a)(2)(A) (the subsection covering crimes involving moral turpitude and controlled substance offenses) would be ineligible for cancellation.  The Board brushed aside that argument by supposing that the Conference Report likely referred only to the most common grounds of disqualification.

The respondent also argued that the language of the grounds of ineligibility for cancellation refer to a singular conviction under 212(a)(2), while multiple convictions are required for an offense to be described under the multiple conviction with 5 year aggregate sentence ground of inadmissibility.  The Board responded that the Dictionary Act (1 U.S.C 1) provides that for any Act of Congress the singular shall include the multiple unless the context requires otherwise.

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In Ferreira, the Board of Immigration Appeals held that conviction of a state controlled substances offense that, on its face, controls some substances not controlled by the federal Controlled Substances Act (in addition to some that are) establishes deportability unless the respondent establishes a realistic probability that the state would actually prosecute offenses involving the substances not covered by federal law.  This conclusion, however, is now in some doubt following the Supreme Court's later decision in Mellouli v. Lynch.

ICE put Ferreira, a lawful permanent resident, in removal proceedings after his conviction of section 21a-277(a) of the Connecticut General Statutes Annotated in 2010.  It charged he was deportable for a controlled substance offense and aggravated felony because section 21a-277(a) prohibits the sale of various controlled substances.  Ferreira argued ICE could not establish deportability because his conviction record did not specify what substance he sold and at the time section 21a-277(a) covered sale of two opiate derivatives (benzylfentanyl and thenylfentanyl) not listed in the federal Controlled Substances Act, in addition to many substances that do appear in the federal Controlled Substances Act.

The Board labeled the two non-covered substances "obscure" and held the immigration judge should have conducted fact-finding to determine whether the State of Connecticut would actually prosecute a person for sale of those substances.  It reached this conclusion based on its reading of the Supreme Court's decisions in Moncrieffe and Duenas-Alvarez, which held that the categorical approach was not an invitation to exercise "legal imagination." To defeat a charge of deportability, that precedent requires a the respondent to show that there is a realistic probability that a state would prosecute an offense that does not meet the generic definition.  The Board then asserted

Under that test, for the proceedings to be terminated based on this discrepancy between the Connecticut and Federal schedules, Connecticut must actually prosecute violations of section 21a-277(a) in cases involving benzylfentanyl and thenylfentanyl.

Thus, the Board expected Ferreira to cite an example of a prosecution for one of those substances.

The problem with the Board's approach is that it conflates obscurity with likelihood of prosecution.  Ferreira may not be able to provide an example of a Connecticut prosecution for benzylfentanyl or thenylfentanyl because they are not commonly abused drugs and thus are not commonly sold, particularly in a small state like Connecticut.  That does not mean, though, that Connecticut would not prosecute an offense involving one of those substances if given the chance.  Both substances are explicitly covered by the statute.  In other words, the fact that an offense is uncommon does not mean that a court would have to exercise legal imagination to say that it would be prosecuted.

The Supreme Court seemed to implicitly recognize this issue in its later decision in Mellouli.  Mellouli held that a Kansas conviction under an overbroad controlled substances offense does not establish deportability if the record of conviction does not establish the offense related to a substance covered by the federal Controlled Substances Act.  Mellouli did not address whether there was a realistic probability of Kansas prosecuting the substances that made the Kansas offense overbroad (salvia and jimson weed, which do not appear in the federal schedules).  This is a significant silence, since the Board had just a year earlier held in Ferreira that this must be addressed.  Why didn't the Supreme Court address it?  It did not explain.  It just said (at footnote 8) that the case did not require the Court to decide whether Ferreira applied the categorical approach correctly.

I would argue, though, that it takes no legal imagination to suppose that a state would prosecute an offense involving a controlled substance that is explicitly covered by statute or regulation.  The fact that a state has not yet had the opportunity to prosecute an offense involving the substance does not mean it would not.  This is what distinguishes Ferreira's situation from the concern raised by the Solicitor General in Moncrieffe--that the failure to explicitly exclude antique firearms from a state firearms statute would mean that it would not match the federal firearms definition even if the state does not actually prosecute antique firearms offenses.  Moncrieffe did not say that a state firearms statute that explicitly does cover antique firearms would not match the federal firearms definition merely because the state, perhaps a small one like Connecticut, has not had an opportunity to prosecute an antique firearms case yet.

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The Supreme Court reached the sensible decision in this case that a noncitizen is deportable for a drug paraphernalia conviction only if the government proves the conviction relates to a substance appearing on the federal controlled substances schedules.  This decision provides a valuable plea option for some minor drug cases, at least in states that control substances that do not appear on the federal schedules.

Here, Mellouli was arrested for DUI and at booking his sock was found to contain 4 pills.  At the time, he allegedly admitted they were Adderall and that he did not have a prescription.  In court, Mellouli pleaded guilty to possession of drug paraphernalia (the sock), but the drug that the paraphernalia charge related to was not specified in the charging document or his plea.  The identity of the substance thus was not established by the conviction. This is significant because Kansas law at the time controlled some substances that do not appear in the federal schedules, so simply having a paraphernalia conviction in Kansas did not establish a conviction relating to a federal controlled substance.

Relying on Matter of Martinez Espinoza, 25 I&N Dec. 118 (2009), the immigration judge and Board of Immigration Appeals held that the government did not need to prove that Mellouli's paraphernalia conviction related to Adderall or any other specified controlled substance. It was enough that the sock related to "the drug trade in general."

The Supreme Court disagreed and once again faithfully applied the categorical approach, as it has in a string of recent decisions.  The categorical approach requires that the elements of a conviction necessarily match the elements of a federal generic definition.  If there is no match, then there is no penalty--in this case, no deportability.  The text of the deportability statute here requires that a conviction "relat[e] to a controlled substance (as defined in section 802 of Title 21)."  If the conviction does not necessarily relate to a controlled substance as defined in section 802 of Title 21 (the federal Controlled Substances Act) because state law covers one or more substances not covered by federal law, then the noncitizen is not necessarily deportable.

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The Board of Immigration Appeals held that the exception to the controlled substance ground of deportability for a "single offense involving possession for one's own use of thirty grams or less of marijuana" is a factual question that may be decided by an immigration judge if the record of conviction is not conclusive. In other words, it is a "circumstance specific" inquiry.  It is not a categorical inquiry, where the only question is whether the legal elements of an offense match a federal definition.

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The Board held that an immigrant admitted at a port of entry as a conditional permanent resident is subject to the 212(h) aggravated felony bar.   That bar prohibits an immigrant admitted to the United States as "an alien lawfully admitted for permanent residence" from applying for a 212(h) waiver of criminal inadmissibility if the alien has been convicted of an aggravated felony after admission.  The question here, though, is whether the bar applies if the immigrant was admitted to the U.S. in lawful permanent resident status on a conditional basis, which occurs if the permanent resident status is based on a marriage entered into less than 2 years before the admission.  

The Board held that the aggravated felony bar does apply to immigrants admitted as conditional residents under the plain language of the Act.  It reached that conclusion because the Act refers to those immigrants as having "obtain[ed] the status of lawful admission for permanent residence," albeit on a conditional basis.  The Board, however, failed to address why the conditional status should not matter.  The requirements to remove that conditional status place these immigrants in a much different situation than immigrants truly admitted to permanent residence in the sense of having the right to reside in the U.S. indefinitely.  Perhaps the distinction does not matter, but the Board should have stated why.

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Rejecting the BIA's approach in E.E. Hernandez, the Ninth Circuit held that a gang enhancement under California Penal Code section 186.22(b)(1) does not transform a conviction into a crime involving moral turpitude if the offense was not one already.

Here, Hernandez-Gonzalez was convicted of possessing a billy club, which generally would not involve moral turpitude because the offense does not involve threatening or hurting anyone, but rather mere possession.  The Board found, in an unpublished decision, that the gang enhancement made Hernandez-Gonzalez's offense a crime involving moral turpitude.  This is consistent with the Board's later published decision in E.E. Hernandez. E.E. Hernandez reasoned that the specific intent to promote street gang activity , which is required for a PC 186.22 enhancement, is always morally turpitudinous because street gang activity is morally turpitudinous.

The Ninth Circuit, however, found that California law permits a gang enhancement where the only street gang activity being promoted is the underlying crime itself, which need not involve moral turpitude.  The Ninth Circuit pointed to California court decisions applying the gang enhancement to weapons offenses where the weapons were discovered during probation or other searches, such as during traffic stops, that did not involve any actual use of the weapon.  The Ninth Circuit held that weapons possession in such circumstances is not a morally turpitudinous.  It is criminal, but it does not involve the type of evil intent required for a crime involving moral turpitude.

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The Board of Immigration Appeals held that malicious vandalism in violation of California Penal Code section 594(a) was categorically a crime involving moral turpitude where it is accompanied by a finding that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, a sentencing enhancement under PC 186.22(d).

First, the Board found that the immigration judge had erred by analyzing the vandalism and the enhancement separately.  Rather, the Board held that they must be considered together as a single offense.  The enhancement requires a specific intent to promote criminal activity by a street gang, so that means an act of malicious vandalism with the enhancement must be done with the specific intent to promote that activity.  What activity?  The Board cited "turf wars and gang violence."  The Board found that gang vandalism promoted that activity.

I would argue, though, that vandalism with a gang enhancement is not a CIMT under the categorical approach if there is a realistic probability that a defendant might be convicted of it for conduct that does not promote turf wars or gang violence.  The Board seems to assume that the only vandalism that comes within the statute is gang graffiti, which obviously stakes out territory and could lead to confrontations.

I would be interested to know if any of my readers could think of a scenario where a person could be convicted of vandalism with a gang enhancement (for the benefit of a gang and to promote criminal activity by the gang) that is not necessarily turpitudinous.  If so, is there a realistic probability of it being prosecuted?  Submit a comment below if you can.

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The Ninth Circuit held in Roberto Roman-Suaste v. Holder that a conviction for California Health and Safety Code section 11359 (possession of marijuana with intent to sell) is categorically an aggravated felony as a drug trafficking offense pursuant to INA § 101(a)(43)(B), 8 USC § 1101(a)(43)(B).

The petitioner had argued under Moncrieffe that there might be situations where a defendant is convicted of HS § 11359 for distribution for insignificant payment or payment for social, medical, or family purposes, which would not be illicit trafficking.  The court disagreed.  It found that any type of distribution for remuneration would be illicit trafficking and thus an aggravated felony under Moncrieffe.

The court further rejected the petitioner's argument that California extends aiding and abetting liability beyond the generic federal definition, an argument that had little chance given the Supreme Court's decision in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

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In an extremely helpful decision for noncitizen defendants, the Ninth Circuit held in Rendon v. Holder that California Penal Code § 459 (burglary) is not an aggravated felony as an attempted theft offense.

A state conviction meets the generic federal definition of an attempted theft offense if it includes the elements of intent to commit a theft offense and an overt act constituting a substantial step towards commission of such an offense. California burglary under section 459 consists of entry into a building, vehicle, or structure with intent to commit theft or any felony.  Thus, it is not necessarily an attempted theft offense because it might involve entering a structure to commit some other crime that is a felony.

Prior to the Supreme Court's decision in Descamps, courts within the Ninth Circuit thus would have examined the record of conviction to determine whether it indicated a plea to entry to commit theft.  If so, then the conviction would be an aggravated felony.  Descamps, however, held that such an examination of the record (called a "modified categorical analysis") was possible only where the offense is divisible.  Divisibility means that the statute of conviction specifies multiple alternative crimes, at least one of which meets a federal definition and at least one of which does not.  Multiple alternative crimes means the statute contains multiple alternative elements of functionally separate crimes, not alternative means of committing a single crime.  An element is something a jury must unanimously find beyond a reasonable doubt.  On the other hand, a jury need not agree on the means of committing a crime (for example, a jury may not need to agree on the type of weapon used in an assault).

The Ninth Circuit held that "theft or any felony" is not divisible because they are alternative means, not alternative elements.  A jury need not agree on whether the defendant entered a structure with intent to commit theft or any other felony to return a conviction for burglary under PC 459.  Since the offense is not divisible, a reviewing court cannot turn to the record of conviction to determine if the conviction was for entry with intent to commit theft.

California PC 459 therefore can never meet the definition of an attempted theft offense because it is broader than the federal generic definition and the modified categorical analysis cannot be used to narrow the conviction to meet the definition.

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