The California Department of Justice, Division of Law Enforcement, has issued a bulletin on the responsibilities of local jurisdictions under the TRUST Act and potential liability for detaining a person pursuant to an ICE request. Read my previous blog post for more on the TRUST Act. As for liability, the bulletin notes a district court in Oregon found detainers are voluntary requests, and thus a jail may be held financially liable if it turns out there was no probable cause for the detention. This is a worrisome prospect because ICE often issues detainer requests on scant evidence and in the past has even issued detainers against U.S. citizens.
Category: Jurisdiction
U.S. v. Edward Lee Sullivan
In this sentencing case, a panel of the Ninth Circuit has once again concocted a way to squirm out of the categorical analysis. The Supreme Court's harsh rebuke just last term in Descamps apparently has had little effect. After reciting the admittedly terrible facts of the case (a parolee pimping out a 14 year-old runaway and using her to produce porn after prior convictions for sex with a minor and conspiracy to pander a minor), Judge Ikuta's opinion announces it is applying the categorical analysis and then utterly subverts it.
The portion of the opinion reviewed here concerns the use of the categorical analysis to determine whether a sentencing enhancement for a prior conviction for sexual abuse of a minor applies. The opinion first notes the generic federal definition of sexual abuse of a minor requires conviction of either (a) a sexual offense with a minor that is inherently abusive or (b) an offense that involves knowingly engaging in a sexual act with a minor between the ages of 12 and 16 and a 4 year age difference. The opinion then recognizes that Ninth Circuit precedent holds the defendant's prior conviction for California Penal Code section 261.5(d) (unlawful sex with a minor younger than 16 by an adult 21 or older) does not categorically meet this definition (and that by extension his prior conviction for PC 288a(b)(2) does not either). PC 261.5(d) is not inherently abusive because it could involve consensual sex with a minor just one day shy of 16. Nor does it meet the alternative test because the conviction does not require that the defendant know (or that he reasonably should know) the minor is under the age of 16.
No match should mean that the mandatory minimum sentences applied by the district court judge (25 years and 10 years) do not apply, but the panel snatches victory from the jaws of defeat with the magic words "relating to." The panel finds that the sentencing enhancement requires only conviction of an offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact with a minor or ward." It explains this "mandates the enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense.” Whatever that means, the panel holds it does not require the conviction to have the same elements as the generic definition.
The opinion cites a Ninth Circuit decision, United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007), as support for its holding. The citation, however, is suspect because it pre-dates the Supreme Court's last four decisions on the categorical analysis (Nijhawan, Johnson, Moncrieffe, and Descamps), which all have emphasized the primacy of elements when evaluating whether a conviction meets a federal definition. Moreover, actually reading the Sinerius decision reveals that it does not offer quite as much support as the Sullivan panel asserts. Sinerius does expound on "relating to," but its actual holding does not purport to dispense with a categorical analysis of the elements of the offense. Instead, It simply found that the generic definition of sexual abuse meant more than federal statutory rape, that it also covered sexual offenses with children younger than 14. And then it compared the elements of the statute of conviction to that generic definition. Sinerius does not assert that a conviction can satisfy a federal generic definition even if it is missing an element of the generic definition.
The flawed reasoning of Sullivan unfortunately has potential consequences beyond its application here. For example, a conviction for an offense "relating to" a federal controlled substance makes a noncitizen deportable or inadmissible. Thus, the panel's reasoning could be used to argue a conviction for California Health and Safety Code section 11377(a) "relates to" an offense involving a federally controlled substance even if the conviction actually did not (because some of the substances covered by it are not prohibited by the federal Controlled Substances Act). This certainly would be news to another Ninth Circuit panel that recently held 11377(a) does not categorically make a noncitizen inadmissible. See Quijada Coronado. Ditto for another panel on a Hawaii controlled substances statute. See Ragasa.
Let's hope the other judges on the Ninth Circuit see this chicanery for what it is.
U.S. v. Cristobal Colon-Arreola
In this illegal reentry case, a Ninth Circuit panel held that battery on a peace officer that causes injury in violation of California Penal Code (CPC) section 242/243(c)(2) is categorically a crime of violence under the sentencing equivalent of the definition at 18 U.S.C. 16(a) (effectively tripling the prison exposure). It found CPC 243(c)(2) requires as an element the willful use of force against the person of another sufficient to cause injury. It notes a California Court of Appeal decision that equates willful with intentional and thus concludes that a battery willfully inflicted that causes injury is a crime of violence.
Seems reasonable at first glance, except the court glosses over a lot in a way one wouldn't expect for a published decision. First, the willfulness that the court makes a big deal about is located in the definitional statute at 242. That willfulness is just the general intent to effect a simple battery. A simple battery can include any form of unlawful touching--even a push that causes no injury. And the Ninth Circuit has previously held that a simple battery with that type of intent is not a crime of violence. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (simple battery against a domestic victim is not a crime of violence for purposes of the domestic violence ground of deportability).
It is the resulting injury that triggers the enhanced sentence at 243(c)(2), and the injury need not be intentional. Thus, pushing a peace officer would be punishable under CPC 243(b) (misdemeanor) if it causes no injury, while the same push with the same level of force would be punishable under CPC 243(c)(2) (felony or misdemeanor) if it causes the cop to trip over something and he needs an ice pack (we are not talking great bodily injury, or GBI, here). Either way, it does not matter what the defendant intended because there is no element of specific intent to cause injury, just the general intent to complete the contact.
This is why the court's reliance on United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) is way off base. Laurico-Yeno concerned CPC 273.5, which penalizes a person who "willfully inflicts upon [a protected domestic victim] corporal injury resulting in a traumatic condition." There, unlike CPC 242/243(c)(2), the injury is willfully inflicted.
It gets worse, though. The California Court of Appeals opinion that the panel cites for support actually undermines its position. The discussion of willfulness in People v. Lewis, 15 Cal. Rptr. 3d 891, 901 (CA 4 2004) first notes, "Usually the word "willfully" defines a general intent crime unless the statutory language requires an intent to do some further act or achieve some future consequence." Therefore, "When the structure of a section requires a willful act followed by some particular result, then it is reasonable to read the willful, i.e., intentional, element as referring only to the initial act and not to the ultimate result. In such sections the word "willfully" does not require the defendant intend the ultimate result, only that he or she intended the initial act." That is precisely why a simple battery that results in injury (that need not be intended) does not comport with the Supreme Court's holding in Leocal that a crime of violence must actually be violent.
Let's hope there is a request for en banc rehearing to reconcile this case with Ortega-Mendez and with the spirit of the Supreme Court's recent decisions.
Antipas Johnlang Konou v. Holder
In a matter of first impression in this circuit, the Ninth Circuit found that the BIA could consider a sentence enhancement in determining whether a non-aggravated felony conviction was nonetheless a particularly serious crime that would bar withholding of removal. Konou had argued it could not because Ninth Circuit precedent holds a sentencing enhancement cannot be considered when determining if a conviction is an aggravated felony. The court pointed out that a conviction does not need to meet the aggravated felony definition in order to be deemed particularly serious. The particularly serious crime determination is a discretionary case-by-case determination.
U.S. v. Armando Cabrera-Perez
The Ninth Circuit held that aggravated assault in violation of Arizona Revised Statute 13-1203 is not categorically a crime of violence pursuant to 18 U.S.C. 16(a) because it encompasses reckless conduct in addition to knowing or intentional conduct. A mens rea of mere recklessness is not enough--the Ninth Circuit has held that at least extreme recklessness is required. Applying the modified categorical analysis, however, the court found the defendant pleaded guilty to charges that alleged only intentionally placing the victim in reasonable apprehension of imminent physical injury. It thus was a crime of violence.
Since the defendant received a 12 month sentence for this crime of violence conviction, the court held it was an aggravated felony. This aggravated felony conviction precluded voluntary departure in the removal proceedings that followed, so the defendant was not prejudiced when the immigration judge did not advise him about voluntary departure. The court therefore found he could not collaterally attack the removal order and upheld his conviction for a subsequent attempted illegal reentry with a sentence of 70 months.
Contra Costa Sheriff Also Stops Honoring ICE Holds
As in Alameda County, the Contra Costa Sheriff's Office has ended its policy of complying with immigration detainer requests for persons in its custody. http://www.contracostatimes.com/news/ci_25809942/east-bay-sheriffs-release-immigrants-held-feds
Alameda County Sheriff Stops Honoring ICE Holds
The Alameda County Sheriff's Office is no longer honoring ICE detainer requests, period. The development likely has a lot to do with the court decisions that have held a local jail could be legally and financially responsible for an erroneous hold, not to mention the fact ICE does not even compensate the county for the expense of holding the person in custody for an additional day or two.
San Mateo County ICE Hold Developments
The San Mateo County Sheriff's Office has revised its ICE hold policy to not honor ICE detainer requests except "in cases of individuals who pose significant public safety concerns, which would require case by case approval from the Sheriff's Executive staff." These should be a "rare exception."
Crisanto Carino Ragasa v. Holder
The Ninth Circuit held that the petitioner's conviction for “Attempted Promoting a Dangerous Drug in the First Degree,” in violation of Haw. Rev. Stat. §§ 705-500(1)(b), 712-1241(1)(b)(ii), was not categorically a deportable controlled substance offense. It reached this conclusion because the relevant Hawaii controlled substance schedules include two substances, benzylfentanyl and thenylfentanyl, that are not currently listed in the federal Controlled Substances Act.
Although not a categorical controlled substance offense, the court applied the modified categorical analysis because it found the offense divisible pursuant to Coronado v. Holder. The record of conviction did not identify the substance, though, so the government could not meet its burden of proof.
The court thus found Ragasa was not deportable as charged. That was a good thing, since it rejected his claim to citizenship based on adoption by two naturalized citizens in 1980.
U.S. v. Faustino Gomez
In this criminal prosecution for illegal entry after removal, the Ninth Circuit held that an Arizona conviction for attempted sexual contact with a minor under the age of 15, in violation of ARS 13-1405B, does not meet the federal generic definition of sexual abuse of a minor. It therefore remanded for re-sentencing. It also held, though, that the defendant could not establish prejudice resulted from a violation of his due process rights in the stipulated removal proceedings that preceded his removal because at the time the offense was considered an aggravated felony for sexual abuse of a minor in the Ninth Circuit. It just goes to show how quickly the law can change.
ARS 13-1405B has three elements: (1) a mens rea of “intentionally or knowingly”; (2) an act of “engaging in sexual intercourse or oral sexual contact”; and (3) a victim “who is under fifteen years of age.” The court found this did not meet either of the alternative federal generic definitions of sexual abuse of a minor. First, it is not sexual abuse of a minor as statutory rape because Arizona law, unlike federal law, does not require an age difference of 4 years. Second, ARS 13-1405B does not meet the alternative generic definition of sexual abuse of a minor, which requires that: (1) “the conduct proscribed . . . is sexual;” (2) “the statute protects a minor;” and (3) “the statute requires abuse.” Ninth Circuit precedent presumes that sexual contact with a minor under the age of 14 is inherently abusive, but ARS 13-1405B covers both 14 year-olds and those younger than 14. The panel declined to extend that inherent abusiveness presumption to 14 year-olds. Nor did it find any other element of abuse in this offense, since it involves consensual sex.