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Category: Jurisdiction

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The Ninth Circuit upheld a Board of Immigration Appeals decision that a conviction for misuse of a passport to facilitate an act of international terrorism in violation of 18 U.S.C. §§ 1544, 2331, is a categorical crime involving moral turpitude.

The conviction resulted from the petitioner's involvement in efforts to overthrow the communist government of Vietnam, specifically an apprehension in the Philippines as he allegedly was assembling explosive devises for use against the Vietnamese Embassy in Manila.

First, the court held that because section 2331 (intent to facilitate an act of international terrorism) increases the statutory maximum penalty for simple misuse of a passport under section 1544, it is an element of the offense and is to be considered under the categorical analysis of a conviction.

Second, the court agreed with the BIA that intent to facilitate international terrorism is categorically turpitudinous, since it necessarily involves an intent to harm someone and a protected class of victim.  In this case, the court found that the protected class of victim could be either a vulnerable civilian population or a lawful government.  The court's analysis on this point, however, seems thin.  Typically, a protected class of victim would be something like a child, spouse, or elderly person.  Does the government of a country really fit that definition?  It is particularly incongruous here, since the opinion acknowledges the despicable actions of the Government of Vietnam in addressing the petitioner's Convention Against Torture claim.  Also, defining an entire civilian population as a protected class of victim seems broad too.  Doubtless, though, the classification of the offense as "terrorism" compelled the court decide that it necessarily involved moral turpitude.  The opinion would have been sounder if it had dropped "protected class of victim" as a basis for the decision and instead focused on the intended harm required by the statute.

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The Ninth Circuit upheld a finding of deportability for conviction of an offense relating to a substance prohibited by the federal Controlled Substances Act because circumstantial evidence established that a document in the record was the factual basis for the plea and that factual basis established the conviction involved methamphetamine.  In the underlying criminal case, Juarez-Alvarado pleaded guilty to Arizona Revised Statute § 13-3407(A)(1), but not as originally charged in the indictment returned against him.  He pleaded to count 1 as modified.  The Ninth Circuit therefore held that the government could not establish he was deportable by relying on the original indictment.  However, the government also presented a document from the court record (lacking a title or date) that purportedly was the factual basis incorporated into the plea.  Juarez-Alvarado disputed that it was.  The court considered the circumstantial evidence in the record (of page numbering, location of certification stamps, etc.) and found that the document indeed was the "attached description of the statutory elements and factual basis" referenced by the guilty plea.  Since that document indicated the conviction was for possession of methamphetamine, the court found it established deportability.

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The Ninth Circuit reversed a conviction for illegal reentry after removal because the defendant received ineffective assistance of counsel in the removal proceedings.  The counsel had conceded removability for conviction of a drug trafficking aggravated felony where the immigrant had a Missouri conviction for possession of marijuana with intent to deliver.  As in Moncrieffe, the conviction (Missouri Revised Statutes § 195.211) encompassed distribution of a small amount of marijuana for no remuneration, which would not be a felony under the federal Controlled Substance Act and thus not an aggravated felony as the state equivalent of a felony conviction under the Controlled Substance Act.  Moncrieffe had not been decided at the time of the attorney's concession, but a circuit split did exist at the time and the Seventh Circuit (in which the removal proceedings occurred) had not ruled on the issue at the time.

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The Board of Immigration Appeals applied the Supreme Court's decisions in Descamps and Moncrieffe to find that the respondent's felony conviction under section 76-10-508.1 of the Utah Code for discharge of a firearm was not an aggravated felony crime of violence, but was a deportable firearms offense.

Section 76-10-508.1(1) has three subsections and it was not clear which the respondent was convicted of.  The first, subsection (a), penalizes one who "discharges a firearm in the direction of any person or persons,  knowing or having reason to believe that any person may be endangered by the discharge of the firearm."  This does not require any particular mental state by the person who discharges the firearm, which means under the Utah Code that it may be done with intent, knowledge, or recklessness.

The Supreme Court held in Leocal that the mental state of recklessness does not satisfy the federal definition of a crime of violence, so the Board held that a violation of section 76-10-508.1(1)(a) is not necessarily an aggravated felony crime of violence.   Further, the Board held it could not find the respondent was convicted of an aggravated felony under the modified categorical approach.  It determined it could not use the modified categorical approach because the mental states for subsection (a) (intentionally, knowingly, or recklessly) are not divisible because they are not elements of the offense that a jury must unanimously agree upon.  In other words, a jury returning a guilty verdict could do so where some members of the jury believe the defendant acted intentionally, while others believe he acted recklessly.  Since the offense does not necessarily constitute a crime of violence and it is not divisible, no conviction for section 76-10-508.1(1)(a) would be an aggravated felony crime of violence.

The Board nonetheless found that Chairez-Castrejon was convicted of a firearms offense because it rejected his argument on the antique firearm exception.  The federal definition of a firearm excludes certain antique firearms, while the respondent argued that Utah law did not.  The Board noted that there was no specific exception for antique firearms under Utah law, but also found that the respondent had not shown Utah actually prosecutes offenses involving antique firearms.  In Moncrieffe, the Supreme Court held that an alien who invokes this “antique firearm” argument in order to defeat an aggravated felony charge “would have to demonstrate
that the State actually prosecutes the relevant offense in cases involving antique firearms.”  The respondent apparently could not show that here (California, on the other hand, does prosecute cases involving antique firearms).  The Board therefore found Chairez-Castrejon deportable, although it remanded for consideration of his cancellation of removal claim because it found his conviction was not an aggravated felony.

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The Board of Immigration Appeals held here that a respondent's mental health at the time of committing a crime is not a factor in determining whether a conviction is for a particularly serious crime that bars withholding of removal.

In this case, the respondent was convicted of California Penal Code section 245(a)(1) (2004 version), assault with a deadly weapon, and received a two-year sentence to prison.  He has a history of chronic paranoid schizophrenia, which resulted in a finding that he was mentally incompetent during the removal proceedings.  The fact of the conviction, however, indicates he was not found not guilty by reason of insanity during the criminal proceedings.

The Board held that the respondent's mental health circumstances at the time of an offense may not be considered in determining whether the crime is a particularly serious crime that bars withholding of removal.   It reached this conclusion despite acknowledging the well-established rule that it "evaluate[s] the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts."  The Board's decision makes clear that the "circumstances and underlying facts" concern only those that indicate whether the respondent is a "danger to the community."  In other words, a crime by a mentally ill person can indicate dangerousness to the community just the same as a crime by a person who is not mentally ill.

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In Matter of Iris Introcaso, the Board held that a petitioner has the burden of proving that he is not ineligible to petition for a relative due to a conviction for a specified offense against a minor under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act").  It further held "the language and structure of the Adam Walsh Act invite a circumstance-specific inquiry into both the age of the victim and the conduct underlying the offense." In other words, the inquiry purportedly is not limited to the categorical approach.

The Board justified examining facts outside of the elements of conviction to determine the victim's age because the list of disqualifying convictions includes offenses that are not specific to minors (kidnapping, false imprisonment, solicitation to engage in sexual conduct, etc.).  It is hard to argue with that, so I won't.

The rationale for examining non-elements to determine the nature of the conduct underlying the offense, however, is far more dubious.  The Board notes that the list of specified offenses against a minor include "criminal sexual conduct involving a minor..." and "any conduct that by its nature is a sex offense against a minor."  The Board suggests that this focus on the conduct permits an examination of the alleged facts of the offense, rather than the offense of conviction.  In doing so, it disregards the requirement that the petitioner be "convicted of" a specified offense.  How can a petitioner be convicted of conduct that is not an element of the conviction?  This is precisely the issue addressed in the Supreme Court's decision in Descamps, but the Board did not even attempt to distinguish Descamps and instead focuses myopically on the Supreme Court's earlier decision in Nijhawan.

Arguably, though, Board's assertion that an adjudicator can engage in a circumstance-specific inquiry into the conduct underlying the offense is dicta.  It is dicta because the Board did not examine facts or circumstances of the offense in this case to determine whether it was a disqualifying offense.  It did not need to.  The offense was endangering the welfare of children under section 2C:24-4(a) of the New Jersey Statutes Annotated.  The Board held that offense is divisible and that the portion the petitioner was convicted of--engages in sexual conduct which would impair or debauch the morals of the child--is a specified offense under the Adam Walsh Act.  It reached that conclusion based on the statutory language and petitioner's inability to provide an example that would be outside the scope of the Adam Walsh Act.  In other words, it applied the categorical approach--not the circumstance-specific approach.

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In  Matter of Tatiana Aceijas-Quiroz, USCIS denied the U.S. citizen petitioner's immigrant petition for his wife.  This the first of three Board of Immigration Appeals decisions issued on May 20, 2014, that concern the immigration consequences of convictions for U.S. citizens.  Under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), certain convictions will disqualify a citizen from petitioning for an immigrant family member.

USCIS found, and the petitioner did not dispute, that his prior convictions for sexual abuse and for contributing to the sexual delinquency of a minor were "specified offenses against a minor" under the Adam Walsh Act.  He therefore was ineligible to petition for his wife unless he could demonstrate that despite those convictions he posed "no risk" to her.  USCIS denied the petition because it was not satisfied that he posed no risk to her.  In doing so, it required him to show "beyond a reasonable doubt" that he posed no risk.  This standard, which typically does not apply in civil immigration proceedings, does not appear in the statute or regulations.  It was imposed by USCIS memo.

The petitioner appealed to the Board, arguing that the heightened beyond a reasonable doubt standard of proof should not apply.  The Board, however, determined that it did not have jurisdiction to review the question because it found the Adam Walsh Act gave USCIS sole authority to determine whether a petitioner posed no risk to a beneficiary and that includes sole authority to determine the standard of proof for that issue.

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In yet another positive development in the State of California, the maximum potential sentence to imprisonment for misdemeanors is now 364 days. It accomplishes this by adding section 18.5 to the Penal Code, which provides:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.

Governor Brown signed the bill, SB 1310, on July 21, 2014. Since the text of the bill does not specify otherwise, criminal defense attorneys should assume that the change does not go into effect until January 1, 2015.  Until then, attorneys should pursue other strategies to protect their clients.

There are three major benefits for non-citizens convicted of a misdemeanor that carries a 364 day maximum potential sentence.  First, the conviction could not meet the federal definition of an aggravated felony based on a 365 day sentence to imprisonment (be careful, though, because some aggravated felonies do not require any sentence to imprisonment).

Second, a California misdemeanor conviction would no longer make an immigrant deportable for conviction of a single crime involving moral turpitude (CIMT) committed within 5 years of admission, since that ground of deportability only applies if the conviction carries a maximum potential sentence to imprisonment of one year or more.

Third, a single misdemeanor CIMT conviction that results in a sentence to imprisonment of 6 months or less would no longer automatically disqualify a non-permanent resident from cancellation of removal.  Cancellation of removal is discretionary relief from removal based on continuous physical presence of 10 or more years and exceptional and extremely unusual hardship to a citizen or permanent resident family member.

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In this illegal reentry decision, the Ninth Circuit held that firearms convictions under state statues that encompass both "antique" and non-antique firearms do not satisfy the federal ground of deportability for conviction of a firearms offense. The defendant here had been removed for conviction under such a statute, so the court found the removal order invalid and reversed the conviction.

The federal definition referenced by the firearms ground of deportability explicitly excludes antique firearms, while former section 12021(c)(1) of the California Penal Code, does not. In other words, there is no complete match between the two definitions and a conviction for the California offense should not categorically trigger deportability. The Ninth Circuit previously had resisted this logic, primarily because the antique firearms exception is an affirmative defense in a federal prosecution. In Moncrieffe, the Supreme Court found, albeit in dicta, that whether it is an affirmative defense or not does not matter. What matters is the congruence between the definitions. An offense meets a federal definition only if all of the conduct penalized by it meets the definition, including the least culpable conduct that there is a "realistic probability" of the state prosecuting. Aguilar-Rios cited cases showing California regularly prosecuted offenses involving antique firearms under PC 12021(c)(1), so the least culpable conduct for a conviction clearly did not meet the federal firearms definition.

Moreover, as in the marijuana statute at issue in Moncrieffe, former California PC 12021(c)(1) was not divisible into alternative, separately defined offenses involving antique or not-antique firearms. Thus, the court held it could not examine the record of conviction to try to determine whether Aguilera-Rios's offense actually involved an antique firearm.

Although this decision concerned a firearms statute that existed before the Deadly Weapons Recodification Act of 2010 went into effect on January 1, 2012, it should apply equally to offenses under the reorganized statute that do not distinguish between antique and non-antique firearms. This would include current sections 25400(a), 27500, 29800, and 33215 of the Penal code, according to the ILRC.

Finally, I should point out that the panel's decision confusingly states Aguilera-Rios's "conviction is not a categorical match for the federal aggravated felony" definition. This apparently is an error, since the recited facts indicate Aguilera-Rios was only found deportable for conviction of a firearms offense, 8 U.S.C. 1227(a)(2)(C), not a firearms aggravated felony. This error is not significant, though, since both reference the same federal definition of a firearm.

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