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Category: Jurisdiction

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The Supreme Court overruled the Ninth Circuit's en banc decision on the categorical analysis of criminal convictions in United States v. Aguila-Montes de Oca. The categorical analysis refers to the process of comparing a prior state or federal conviction to a generic federal definition of a crime to determine whether the prior conviction triggers certain consequences. The Supreme Court held that a court may look to the record of conviction (charging document, plea transcript, jury findings, etc.) only if the defendant was convicted of a “divisible” statute and resort to the record is necessary to determine which of separate alternative elements that the conviction rested on. In contrast, if a statute is not divisible—meaning it contains a single set of elements that is broader than the generic offense—the categorical inquiry is resolved in the defendant’s favor, even if he actually committed the generic offense or admitting to doing so.

My own example based on the holding is as follows: if a statute penalizes possession of cocaine, heroin, or marijuana (and if the identity of the drug is relevant to the federal generic definition), then the reviewing court can look to specified documents from the record to determine if the conviction was for cocaine, heroin, or marijuana. On the other hand, if the statute penalizes possession of unspecified drug paraphernalia, then the reviewing court may not be look to the record to determine the drug that the paraphernalia related to, since the identity of the drug is not an element of the offense.

In Aguila-Montes de Oca, the Ninth Circuit had held to the contrary that a reviewing court may look beyond the elements of a conviction to assess the purported facts of a case based on the prosecution's theory of the crime. For example, pursuant to that opinion a reviewing court could look to other evidence, such as an arrest report, that the paraphernalia had residue of heroin. The Supreme Court not only rejected that approach, but disparaged it. It held that "accepting the Ninth Circuit’s contrary reasoning would altogether collapse the distinction between a categorical and a fact-specific approach." And there are several parts of the Supreme Court's opinion that are more caustic than that, making for a good read.

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The Board of Immigration Appeals held that a stand-alone 212(h) waiver is not available to a lawful permanent resident unless he is an applicant for admission or files a concurrent application to adjust status. It rejected the immigration judge's decision to grant 212(h) nunc pro tunc to the date of a prior admission to the United States.

Rivas was admitted to permanent resident status in 1998 and then received two separate petty theft convictions in 2001. He traveled abroad on several occasions and was readmitted to the U.S. each time despite his inadmissibility for having two convictions for crimes involving moral turpitude. He later was put in removal proceedings as a deportable alien for having two convictions for crimes involving moral turpitude. He applied for 212(h) as discretionary relief from removal and the immigration judge granted it. DHS appealed and the Board sustained the appeal.

Rivas pointed out DHS should have put him in removal proceedings when he previously applied for admission to the U.S. after travel abroad--at which point he undisputably would meet the eligibility criteria. To now hold that he is ineligible for that form of relief (since he apparently did not have a basis to readjust) based on the fortuitous circumstance that DHS was negligent in allowing him back into the U.S. makes no sense. So, the appropriate remedy, as indicated by an earlier Board decision in Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), is to back-date the grant of the waiver to the date of his earlier erroneous admission.

The Board disagreed, finding that the statute requires the immigrant be an applicant for admission or an applicant for adjustment and that nunc pro tunc relief would impermissibly sidestep that requirement. It said it has to abide by this statutory language to give effect to the clear intent of Congress. The Board described nunc pro tunc relief as a means only to fill a gap in the statutory criteria.

The Board's rationale, however, fails to recognize that the clear intent of Congress is for DHS to put inadmissible immigrants in removal proceedings when they seek admission from abroad. If DHS had done that, Rivas would be eligible for 212(h). Allowing nunc pro tunc relief fills the unanticipated gap of what to do if DHS fails to do its job. Further, permitting a nunc pro tunc 212(h) waiver does not sidestep the statutory language because Rivas was at one point an inadmissible applicant for admission. This is not the case of someone who did not depart the U.S. after becoming deportable.

Of course, the Board's unstated motivation for this decision was likely to avoid setting up an equal protection argument like the one that resulted in Francis extending 212(c) to immigrants who never departed the U.S. The rationale for that decision was that it was unfair to treat immigrants who have departed the U.S. more favorably than immigrants who have not. By holding that neither group is eligible for 212(h) unless they are put in proceedings at the border or apply for adjustment, perhaps the Board hoped to prevent a court decision finding a denial of equal protection. If so, I think it failed. Treating immigrants differently based on the fortuitous circumstance of whether an immigration inspector properly put them in proceedings upon their last arrival to the U.S. or not is just as unfair.

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From the perspective of attorneys defending immigrants against removal for convictions, it is hard to imagine a better outcome than the Supreme Court's 7-2 ruling in this case. It holds that a conviction satisfies a generic definition of an offense under the Immigration and Nationality Act (INA) only if the minimum conduct for the conviction, not applying legal imagination, satisfies the definition. This rule is faithful to past decisions of the Supreme Court, but it undermines many of the previous Ninth Circuit and Board of Immigration Appeals (BIA) decisions examined on this blog.

The Department of Homeland Security (DHS) put Moncrieffe, a long-term lawful permanent resident, in removal proceedings and alleged he was an aggravated felon drug trafficker based on a Georgia conviction for possession of marijuana with intent to distribute. The conviction resulted from a traffic stop where the police found 1.3 grams of marijuana (enough for 2-3 cigarettes).

Moncrieffe had argued DHS could not prove he was an aggravated felon because the Georgia offense encompasses distribution of a small amount of marijuana for no remuneration (i.e., social sharing) and that is not a felony under the federal Controlled Substances Act (CSA). The lower courts rejected that argument because in a federal prosecution the default sentencing range is as a felony and the defendant would need to establish the small amount and lack of remuneration to qualify for a misdemeanor sentence.

The Supreme Court rejected the hypothetical federal prosecution approach because the INA requires that a conviction be equivalent to a CSA felony to meet the drug trafficking aggravated felony definition and a conviction does not meet that test unless it excludes the possibility of being equivalent to a CSA misdemeanor.

In reaching that conclusion, the Supreme Court forcefully reaffirmed language from its earlier decision in Johnson v. United States: “we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” 559 U.S. 133, 137 (2010) (alterations in original). In other words, if a statute penalizes some conduct that does not meet the INA definition, and there is a realistic probability that the state would prosecute that conduct, then the conviction cannot satisfy the INA definition, unless the record narrows the conviction to the generic INA definition (the modified categorical analysis).

The real action in the lower courts has been attempts to expand the reach of the modified categorical analysis, but Moncrieffe sent a shot over the bow indicating the modified categorical approach is permissible only when the criminal statute lists different crimes separately. This contrasts with the Ninth Circuit's en banc decision in Aguila Montes de Oca. But just what is a divisible statute that lists different crimes separately? The Supreme Court's forthcoming decision in Descamps should answer that.

Moncrieffe also undermines the Ninth's en banc decision in Young, which held that a respondent applying for discretionary relief in removal proceedings could not meet the burden of proving eligibility if the record of conviction is inconclusive as to whether the offense matches the generic INA definition for a disqualifying conviction. Moncrieffe indicates that the categorical approach applies to the question of eligibility for relief too and that a conviction is presumptively for the least serious conduct that has a realistic probability of being prosecuted.

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For an excellent practice advisory, visit:

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The Ninth Circuit held that a conviction under California Health and Safety Code section 11359, possession of marijuana for sale, is categorically a controlled substance offense for purposes of inadmissibility. This seems obvious, but the panel says the petitioner argued that 11359 could involve the sale of other substances besides marijuana that are not covered by the federal law. It rejected the argument because the petitioner apparently did not provide any citations to a case where that had occurred and because it seemed "facially implausible."

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The introductory paragraph to this decision--and the court staff's summary--are misleading, they suggest that an immigrant is not eligible for 212(c) relief if he is an aggravated felon who filed his application for relief after November 29, 1990. The case actually holds, however, that only aggravated felon immigrants who served a sentence of "over 5 years" in prison for the aggravated felony are ineligible for 212(c) (assuming the conviction occurred before April 30, 1997) (see page 4 of the opinion). Of course, this actual holding is not entirely accurate either because the statute says "at least 5 years," not "over 5 years."

All this doesn't inspire a lot of confidence, but the actual holding of the case is consistent with previous interpretations of six other circuits. The court rejected the petitioner's argument that the bar on aggravated felons only applied if the immigrant had an "admission" after November 29, 1990. And "admission" in the sense of reentering the U.S. at a port of entry from abroad. (Lawrence was admitted in 1987.) Instead, the court deferred to the agency's longstanding interpretation that the filing of the application for relief is the "admission," at least for applicants who have not departed the U.S. and sought readmission after conviction. That may not correspond to the statutory language, but Lawrence would not even be eligible for 212(c) if the court hewed closely to 212(c)'s statutory language, which requires the immigrant to depart the U.S. and seek readmission after the conviction (since he did not seek readmission after his conviction in 1992).

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The Ninth Circuit held that California Penal Code § 210.5, the felony of false imprisonment "for purposes of protection from arrest, which substantially increased the risk of harm to victim, or for the purpose of using person as a shield," is categorically a crime of violence under 18 U.S.C. § 16(b) because, by its nature, it carries a substantial risk that physical force will be used in the course of committing the offense.

In reaching its conclusion, the court first analogized § 210.5 to evading arrest and kidnapping, two other offenses which the court has found to be categorically crimes of violence under 18 U.S.C. § 16(b). The court then explained that the ordinary scenario resulting in a conviction of § 210.5 is one where the defendant used a hostage to protect himself from arrest or harm—a scenario which creates a risk that (1) the defendant will use physical force to retain control over the hostage or prevent intervention by police or others or (2) the police or others will take actions resulting in physical force being applied to the hostage or another bystander.

The latter possibility, that the police might take actions that result in the application of force, does not seem to support the argument given the Ninth Circuit's decision in Teposte v. Holder, 632 F.3d 1049, 1055 (9th Cir. 2011) that only intentional application of force by the defendant satisfies § 16(b). Curiously, the court does not fully address Teposte.

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The Ninth Circuit held that INA § 101(f)(7) (8 U.S.C. § 1101(f)(7)), which establishes an irrebuttable presumption that an individual lacks good moral character if he has been incarcerated for an aggregate period of 180 days or more during the relevant period, is constitutional.

The petitioner in this case served approximately 8 months in prison for vehicular manslaughter. As a result, the IJ found that he lacked good moral character under § 101(f)(7) and therefore denied his applications for cancellation of removal and voluntary departure. The petitioner argued that § 101(f)(7) is unconstitutional because Congress may not use length of time served in custody as a proxy for seriousness and must instead specify the criminal offenses which trigger the presumption that an individual lacks good moral character. The court applied rational-basis review and rejected the argument. The court agreed that § 101(f)(7) might produce disparate outcomes based on variations in state sentencing schemes and might prove over- or under-inclusive in individual cases but held that it was nevertheless rational for Congress to conclude that most aliens who have been convicted of crimes serious enough to warrant 6 months of imprisonment will lack good moral character.

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The Board held that a conviction for unlawful animal fighting under 7 U.S.C. § 2156(a)(1) is categorically a crime involving moral turpitude.

First, the Board reiterated that to involve moral turpitude, a crime must have two essential elements—a culpable mental state and reprehensible conduct. The Board found that 7 U.S.C. § 2156(a)(1) meets both requirements: (1) the statute requires that the offender “knowingly” sponsor or exhibit an animal for fighting, and a mens rea of “knowingly” meets the scienter requirement; and (2) the conduct involved is reprehensible because it involves the intentional infliction of often-fatal harm on animals purely for entertainment. In reaching this conclusion, the Board noted that amendments and expansions to the law since its enactment in 1976 reflect an increasing national consensus against animal fighting, as do similar laws in all 50 states and the District of Columbia. Finally, the Board noted that the respondent had not shown a realistic probability that the statute has been applied to conduct not involving moral turpitude.

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The Ninth Circuit held that admission to criminal conduct (here, an adult having consensual sex with a minor) could be used to deny pre-completion voluntary departure even if the conduct did not result in a conviction. The court supported that conclusion with a citation to a 1999 decision by the Board of Immigration Appeals (Matter of Arguelles-Campos, 22 I&N Dec. 811 (BIA 1999), which noted in passing that "other evidence of bad character or the undesirability of the applicant as a permanent resident" could be considered even though pre-completion voluntary departure does not require a showing of good moral character.

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The Ninth Circuit held that an aggravated felony conviction entered on or after November 29, 1990, permanently prohibits a permanent resident from establishing good moral character for naturalization, even if an immigration judge has granted 212(c) relief from removal. The applicant for naturalization here had been convicted in 1991 of assault with intent to commit rape in violation of section 220 of the California Penal Code.

The Ninth Circuit rejected the argument that the Supreme Court's decision INS v. St. Cyr prohibited the attachment of that new penalty to an offense that was not defined as an aggravated felony at the time of conviction. It reasoned that, unlike removal proceedings where the government must prove removability, in naturalization proceedings the applicant bears the burden of establishing eligibility and no potential applicant could have a settled expectation that a conviction for assault with intent to commit rape would not affect the requirement of proving good moral character.

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