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Category: Jurisdiction

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The Board held that the Nevada offense of attempted violation of NRS 205.273 (possession of a stolen vehicle) was not a categorical aggravated felony theft offense under the law of the Ninth Circuit. NRS 205.273 may be satisfied by possessing, receiving, or transferring a stolen vehicle with either knowledge that it was stolen or reason to believe that it was stolen. However, the generic definition of an aggravated felony theft offense, according to the Ninth Circuit's en banc decision in U.S. v. Corona-Sanchez, requires "the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The Board appropriately recognized that a conviction does not require that intent if it is based on what a reasonable person should have known, rather than what the defendant actually knew. Therefore, a conviction under NRS 205.273 does not categorically meet the theft definition.

The Board declined to decide whether NRS 205.273 is divisible into two separately enumerated crimes, possession with knowledge and possession with reason to believe. Since both alternatives are listed in the statute, it would seem to be divisible and thus susceptible to the modified categorical approach. I do not know much about Nevada law, though, so perhaps there is an argument against divisibility. It did not matter in this case because the record did not indicate whether the conviction was for knowledge or reason to believe.

The Board also explicitly reserved the question of whether receipt of stolen property with reason to believe it was stolen would meet the generic definition of a theft offense absent controlling circuit precedent. It noted that many jurisdictions, although not most, included receipt with reason to believe in theft statutes at the time Congress enacted the theft aggravated felony definition.

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In this criminal appeal, the Ninth Circuit upheld a sentencing enhancement for prior convictions for crimes of violence despite a variance in the availability of an affirmative defense. The district court imposed the enhancement in this illegal reentry case because the defendant had previous California convictions for attempted murder and kidnapping. He had argued California attempt was not a categorical match to the generic definition of a crime of violence because California does not provide for the affirmative defense of voluntary abandonment, while the majority of jurisdictions and the Model Penal Code do.

The court held that Ninth Circuit precedent, e.g., United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010), compelled it to reject Albino-Loe's argument. It found that the Supreme Court's decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) did not undermine that precedent. The court distinguished Moncrieffe because it did not involve an affirmative defense, but rather a sentencing exception that defined whether the offense was a felony or misdemeanor.

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The Ninth Circuit, sitting en banc, overruled its erroneous precedent on the maximum potential sentence to imprisonment for California misdemeanors and its precedent that California Penal Code (CPC) section 245 (assault with a deadly weapon) is a categorical crime involving moral turpitude. It also found unpersuasive a Board decision from 1947 that held a CPC 245 conviction involved moral turpitude, since that decision did not apply the categorical analysis. The court remanded to the Board to determine in the first instance whether CPC 245 is a crime involving moral turpitude (CIMT). It further urged the Board to issue a publish decision promptly.

I, for one, am not optimistic the Board will quickly provide a published decision. A prompt answer certainly is important, since CPC 245 is a very common conviction and immigrants should be able to know whether it is a CIMT before deciding to give up their constitutional rights by entering a guilty plea to it. As the Ninth Circuit recognized, though, the question is a difficult one. On one hand, the element of a deadly weapon (a firearm in subsection (a)(2)) makes the offense more serious. However, assault does not require actual injury or even physical contact. Further, the court noted assault is a general intent crime that does not require an intent to injure or a conscious disregard of an unreasonable risk of injury (or, more precisely, it does not require an intent to create an apprehension of a completed battery or a conscious disregard of an unreasonable risk of creating an apprehension of a completed battery). So, I think the Board will struggle with this, which would be unfortunate.

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The Board held that a permanent resident who adjusted to that status from asylee status pursuant to section 209(b) of the INA cannot readjust on that basis as relief from removal. It noted the explicit prohibition on readjustment for residents who adjusted from refugee status and reasoned there was no reason to treat residents who adjusted from asylee status differently, despite the silence of the statute regarding asylees. On the contrary, I would have thought Congress' omission of an explicit prohibition on readjustment for asylees would carry some significance--particularly since the procedures for refugees and asylees were created by the same legislation.

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This Ninth Circuit criminal sentencing case is significant for its holding that divisibility must be explicit in the statute, not implied. The defendant had appealed his federal conviction under 18 U.S.C. § 2250 for traveling in interstate commerce and failing to register with the federal authorities as a sex offender. He was subject to registration because he had a previous Oregon conviction for ORS § 163.425. One of his arguments on appeal was that he should not have received an enhanced sentence as a Tier III offender because ORS § 163.425 is broader than the Tier III generic offense and it is not divisible. The court agreed.

Tier III defines "sexual abuse" as a sexual act accomplished by means of certain types of threat or fear or with a victim who is mentally or physically incapable of consenting. It does not include non-consent due merely to the victim being under the age of consent. A conviction under ORS § 163.425, on the other hand, requires only a sexual act with a person who does not consent. The statute does not specify the types of non-consent that would qualify, but, according to the Oregon Supreme Court, it includes at least actual non-consent and legal incapacity to consent, such as being under the age of 18, mental incapacitation, etc.

The government conceded that ORS § 163.425 is overbroad, but argued it is divisible pursuant to the Supreme Court's decision in Descamps. It argued the court therefore could look to the conviction documents under the modified categorical approach to find a match to the Tier III definition. It asserted § 163.425 is divisible because Oregon also has a definitional statute at § 163.315, which lists persons who are legally incapable of consenting to sex, including minors, mental defectives, mental incapacitated persons, and physically helpless persons. The Oregon conviction documents included the defendant's guilty plea statement that he had sex with a girl who was legally incapable of consenting because she was intoxicated and 15 years old. Non-consent due to intoxication would meet the Tier III definition, so the government argued the enhanced sentence was proper.

The majority of the panel rejected the government's argument and found ORS § 163.425 is not divisible because it does not explicitly list the alternative types of non-consent. It held the definitional statute at § 163.315 did not make § 163.425 divisible because § 163.425 does not reference § 163.315 or even use the same terminology (§ 163.425 requires non-consent, while § 163.315 defines legal incapacity to consent). In other words, § 163.425 defines non-consent broadly to include all types of non-consent and § 163.315 defines only a sub-group of non-consent--legal incapacity. Since § 163.315 does not provide an exclusive list of alternative elements for § 163.425, it does not make § 163.425 divisible into those elements for purposes of the modified categorical approach.

Judge Callahan partially dissented, finding that ORS § 163.425 is divisible. She noted the Oregon Supreme Court had recognized § 163.425 covers two types of non-consent: actual non-consent and legal incapacity, as defined by § 163.315. She maintained that this (implicitly) made the offense divisible into the alternative elements of: actual non-consent, minority, mental incapacitation, helplessness, etc. Since the defendant's guilty plea thus admitted the "element" of intoxication under this logic, the conviction would satisfy the federal definition under the modified categorical approach.

The majority rejected Judge Callahan's approach because it would be a partial return to the means-based analysis of Aguila-Montes de Oca that the Supreme Court repudiated in Descamps. It held the element was "non-consent" and the "means" were actual non-consent, minority, mental incapacitation, and perhaps others, since § 163.425 did not explicitly define a limited universe of modes of commission. I.e., it is the explicit, limited universe that transforms a means into an element, and that was not present here.

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The Supreme Court held a conviction for simple battery against a domestic victim triggers the prohibition against firearms possession at 8 USC 922(g)(9), a federal crime. Immigration advocates had feared that a holding along these lines would be used to justify expanding the domestic violence ground of deportability to also include simple battery against a domestic victim--making deportable, for example, an immigrant convicted of the misdemeanor offense of pushing his wife.

Fortunately, however, the Court explicitly stated at footnote 4 that nothing in its decision should cast doubt on precedent that holds simple battery against a domestic victim does not implicate the deportability ground. The court recognized that the deportability ground incorporates the generally-applicable "crime of violence" definition at 18 USC 16, which the Court has repeatedly held applies only to the active use of violent force capable of causing injury.

The criminal statute in Castleman did not include that reference to 18 USC 16, so the Court applied a much more expansive definition of domestic violence, over Justice Scalia's objections. It cited arguments and statistics by advocacy groups and the Department of Justice to explain why a simple battery that would not be considered "violent" in the ordinary sense is "violent" when it occurs in the domestic context, since it often occurs as part of a pattern of intimidation and control.

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The Ninth Circuit assumed without deciding that a grant of temporary resident status pursuant to the legalization provision at INA 245A amounted to an "admission." It held, however, that a termination of the temporary resident status (in this case for convictions) returns an alien to the unlawful status held before the grant of temporary resident status. 8 C.F.R. § 245a.2(u)(4). In this case, Hernandez-Arias previously held the status of an alien present without admission or parole. The court held the termination thus returned him to an unadmitted status, which made him vulnerable to removal for being present without admission or parole.

The court rejected Hernandez-Arias' argument that this return to an unadmitted status would result in a "rescission," which the regulations say is not required for termination of status and which did not occur in his case. The court distinguished a rescission from a termination. Using divorce and annulment as a comparison, it held rescission would result in him never having had temporary resident status and deprive him of any benefits of having had that status. Termination simply ends the status and returns him to the status he had before.

As an alien not admitted or paroled (and apparently not eligible for 245(i) adjustment), the court held Hernandez-Arias was not eligible for a 212(h) waiver of inadmissibility for his criminal convictions. It held he therefore was not prejudiced by the failure of the immigration judge in the removal proceedings to advise him of potential eligibility for 212(h). It therefore upheld his conviction in this case for illegal reentry after removal.

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The Ninth Circuit issued an opinion finding that the controlled substance schedules referenced by California Health and Safety Code (CHSC) 11377 (as well as 11378 and 11379) are not a categorical match for the federal controlled substance schedules. Specifically, it found khat (Catha Edulis) appears on the California schedules, but that the federal courts have held it is not covered by the federal schedules. Likewise, chorionic gonadotropin (HGC) is listed on the California schedules, but is not listed on the federal ones. That means a conviction under CHSC 11377(a) does not categorically make a noncitizen inadmissible or deportable for a conviction relating to a federal controlled substance.

The respondent had further argued CHSC 11377(a) was not divisible pursuant to Descamps v. United States and thus could never trigger inadmissibility or deportability, regardless of the record of conviction. Unfortunately, the Ninth Circuit rejected that argument and held it could conduct a modified categorical analysis to see if the record of conviction establishes the conviction was for a federal controlled substance. The charge in this case alleged only one controlled substance, methamphetamine (obviously a federal controlled substance), and the clerk's docket reflected conviction on the charge, so the court held the government established inadmissibility under the modified categorical approach. It found a clerk's docket for a misdemeanor case was just as reliable as a minute order, which the court previously had held could be used under the modified categorical approach. Of course, clerk's dockets and minute orders often do contain errors, but presumably it found them reliable because a defendant may inspect and correct them if they are not accurate. I say presumably because the court did not explicitly say so here.

The court did remand the case to the Board, however, because it failed to address his pro se claims on appeal that his previous attorney was ineffective and that the immigration judge did not act as a neutral fact-finder, which might have impacted his application for cancellation of removal.

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The Board held that an adjustment of status by a respondent who entered the U.S. without inspection was an "admission" and the respondent therefore was deportable for conviction of an aggravated felony "after admission." It disagreed with and distinguished the precedent on 212(h) eligibility, where circuit courts have held an aggravated felony does not disqualify a permanent resident unless he or she was admitted to the U.S. as a permanent resident (not where he or she adjusted to permanent resident status). The Board found it would be absurd to interpret the statute to entirely exempt immigrants who adjusted status from the grounds of deportability, which only apply to persons in and admitted to the U.S.

The Board further found that a sentence enhancement specified in the Manual for Courts-Martial that must be pleaded and proved beyond a reasonable doubt is an "element" that may be examined under the categorical analysis for immigration purposes.

In this case, the Board held a sodomy sentence enhancement for sodomy committed "by force and without the consent of the other person" categorically satisfies the crime of violence aggravated felony definition (if the sentence is to one year or more). It found the conviction satisfied both subsection (a) and subsection (b) of 18 U.S.C. 16. It found it satisfied subsection (a) because it held the conviction had as an element the use, attempted use, or threatened use of physical force against the person or property of another. It also found the offense satisfied subsection (b) because sodomy by force, which requires physical force and lack of the victim’s consent for a conviction, by its nature involves a substantial risk that the perpetrator will resort to intentional physical force in the course of committing the crime.

Interestingly, in a portion of the decision not digested by the Board at the beginning of the case, the Board rejected without much analysis the respondent's argument that he did not receive a sentence to one year or more for any single one of his three sodomy convictions. Apparently, he received a sentence to 18 months on the three counts and it was not clear whether this was a single concurrent sentence (i.e., 18 months on each conviction with the period of imprisonment to run at the same time) or three consecutive sentences (say, three sentences to 6 months each). The Board characterized the sentence as a "general sentence" and cited a 66 year-old Board opinion to find it satisfied the crime of violence aggravated felony definition's requirement of a sentence to one year or more. Due to the paucity of the Board's analysis, though, it is hard to know whether the respondent's argument had any merit. This is unfortunate in a published decision.

Finally, the Board rejected respondent's claim to eligibility for a "stand alone" 212(h) waiver. It held 212(h) is not available unless the applicant is an arriving alien seeking to waive a charge of inadmissibility or an applicant to adjust (or readjust) status to permanent residence. See Matter of Rivas, 26 I&N Dec. 130,
132, 134 (BIA 2013).

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The Ninth Circuit held that felony false imprisonment in violation of California Penal Code section 236/237 is not categorically a crime involving moral turpitude. This conclusion was virtually a foregone conclusion given the Ninth Circuit previously had found the more serious offense of simple kidnapping in violation of California Penal Code section 207(a) did not categorically involve moral turpitude.

The court noted the California appellate courts had upheld felony false imprisonment convictions under a "menace" theory in circumstances that did not fit the federal definition of moral turpitude. See People v. Islas, 147 Cal. Rptr. 3d 872, 875–82 (Ct. App. 2012) (two gang members convicted of false imprisonment by menace after hiding from police for about 15 minutes in an apartment rented by a mother and her children; conviction upheld even though the defendants did not brandish a weapon, did not act in a hostile manner, did not touch the woman or her family, did not issue any verbal threats, and, in fact, expressly told her that “they were not going to harm her or her children”).

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