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In assessing whether an applicant is barred from asylum or withholding removal because there are serious reasons to believe that the applicant has committed a serious nonpolitical crime before arriving in the U.S., the Board held that the seriousness of the criminal acts should be balanced against their political aspect.

E-A- participated in an attempt to discredit an opposition political party by committing acts of vandalism, assault, and intimidation, including burning buses and destroying merchandise, during the opposition party's events. The Board held that there was a political character to the activities, but that the attempts to discredit were not entitled to as much weight as actions in direct opposition to a party or government. On the other hand, the Board found the activities to involve serious criminality, particularly the arson of the buses. Even though the applicant testified that no one was hurt, it is dangerous to burn buses in the street after forcing the passengers out. Further, the crimes were directed at civilians, not the applicant's political opponents. The Board concluded that on balance the criminal conduct was disproportionate to its political nature, and thus barred asylum and withholding.

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The Ninth Circuit held that the right to counsel provided by 8 C.F.R. § 292.5(b) does not apply to "applicants for admission" at primary or secondary inspection and held that a lawful permanent resident may be treated as an applicant for admission based on the inspecting officer's conclusions.

Generally, returning lawful permanent residents are not considered to be applicants for admission unless an exception at 8 U.S.C. § 1101(a)(13)(C) applies. Here, the exception was that the LPR was found to have engaged in illegal activity after departure from the U.S.: he allegedly attempted to smuggle his niece into the country upon return. The officers detained him 28 hours and interrogated him, obtaining a sworn statement admitting to the smuggling. At his removal hearing he sought to suppress the statement. He argued he had a right to counsel because he could not be considered an arriving alien until he received a final administrative determination of that issue by the immigration judge and Board of Immigration Appeals.

The Ninth Circuit disagreed, finding that the respondent's argument was "not consistent with the language of the statute or with logic." Really? The officer usually has nothing more than suspicion until the officer interrogates the returning resident--here after more than 24 hours in detention with no access to counsel. Thus, it is the denial of counsel that permits the government to establish that a returning resident is an arriving alien--not vice versa.

As an interesting corollary, I think most CBP officers would be surprised to learn that returning residents have a right to counsel during primary and secondary inspection IF they cannot be considered arriving aliens under § 1101(a)(13)(C). In other words, I don't think an LPR who is potentially deportable for a conviction but not inadmissible for it (e.g., a firearms offense) will be given an opportunity to have his attorney present at the airport. We'll see if that changes with this decision.

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In this case, the Ninth Circuit provided an important interpretation of the "necessarily rested" limitation in last year's en banc decision in Aguila Montes de Oca. It first, unsurprisingly, held that a conviction for sexual battery under California Penal Code section 243.4(a) is not categorically an aggravated felony for sexual abuse of a minor. Obviously, PC 243.4(a) may be committed against an adult. More importantly, though, it found the conviction was not for sexual abuse of a minor under the modified categorical approach either, despite an allegation in the charging document that the victim was a minor.

Under the modified categorical approach, a court may review record of conviction documents to determine whether an overbroad offense has been narrowed to match a generic federal aggravated definition. Aguila Montes de Oca held that alleged facts in a charging document, or other evidence of the prosecution's theory of the offense, may be used if the eventual conviction "necessarily rested" on them.

In this case, the charging document alleged the victim's date of birth, which would make her a minor at the time of the offense. Sanchez-Avalos pled no contest to the offense and was later put in removal proceedings upon return from a trip to Mexico. The immigration judge found him inadmissible for a crime involving moral turpitude and denied his application for a 212(h) waiver of inadmissibility. The Board dismissed his appeal of the decision, holding that the conviction was an aggravated felony for sexual abuse of a minor that disqualified him from 212(h).

The Ninth Circuit, however, held that the conviction could not have "necessarily rested" on the date of birth allegation in the charging document because the victim's age is irrelevant to the sexual battery charge. It could have obtained a conviction at trial even if the birth date contained a typo and the victim was actually an adult. Thus, this conviction is not an aggravated felony under the modified categorical analysis.

Finally, this decision requires a shout out to the attorney for the immigrant, rock star criminal immigration attorney Michael Mehr.

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Relief under former section 212(c) is unavailable for a permanent resident who has served a "term of imprisonment" of more than 5 years for conviction of an aggravated felony, but what if part of that was credited for time spent in civil psychiatric pre-trial confinement pending a determination of competence to stand trial? In an unpublished 1 member decision, the Board held that the entire 392 days that Corpuz spent in that civil confinement does count, which pushed him over 5 years.

The Ninth Circuit disagreed. It found that the common meaning of imprisonment does not include civil confinement, but it declined to entirely disregard Corpuz's time in civil psychiatric confinement because Corpuz did receive credit from the sentencing judge for that time. The court found that counting all of it, though, would be unfair because there is no credit for good conduct and the confinement can last a long time compared to typical pre-trial confinement. The court thus attempted to achieve what it determined was the statutory purpose by holding that the immigration judge should determine how long the confinement would have been if there was good time credit. It called this constructive good time credit.

Something tells me there will be a petition for rehearing in this case, although grant of en banc rehearing seems unlikely given Corpuz's situation would seem to be rare and there is no conflicting precedent.

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The Ninth Circuit held that an abstract of judgment for a California Health and Safety Code section 11377(a) conviction that indicates a plea to a criminal count that identifies the substance as a regulated substance under the federal Controlled Substances Act (here, methamphetamine) satisfies the government's burden to prove removability for conviction of a controlled substance offense. It held this was the case even where the abstract itself does not identify the substance (here, counsel for the immigrant obtained amendment of the abstract to remove its specification of the controlled substance).

The panel further disregarded the fact that Cabantac's plea was pursuant to West/Alford because the plea transcript identified the substance as methamphetamine.

The lesson? Correct an abstract of judgment early in the removal proceedings if necessary, but that may not be enough if competent immigration counsel was not involved at the time of the criminal proceedings. (A shameless plug to consult with an attorney such as myself!)

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This decision interprets and applies the Ninth Circuit's 2011 decision in Aguila Montes de Oca to the following question: In determining the facts "necessarily found" by the trier of fact for a particular criminal conviction, may an immigration judge import facts from the factual basis for a separate conviction in the same criminal proceeding? The court said no over Judge Bybee's vigorous dissent.

The permanent resident in this case was serving in the U.S. Marines when he used a government computer to access pornography, at least some of which involved minors. He was court martialed and pled guilty to two counts. The first, under the Uniform Code of Military Justice (UCMJ) Article 92, was for “violat[ing] or fail[ing] to obey any lawful general order or regulation.” The specific order or regulation at issue was Department of Defense (DOD) Directive 5500.7-R, which provides for use of a government computer for authorized purposes only, which does not include accessing pornography (of any type). The second offense Aguilar-Turcios pled guilty to was bringing discredit upon the armed forces in violation of UCMJ Article 134 by “wrongfully and knowingly possess[ing] visual depictions of minors engaging in sexually explicit conduct, which conduct was prejudicial to good order and discipline of the armed forces.” In other words, the Article 92 charge referenced only accessing pornographic websites, while the Article 134 charge specified accessing child pornography. When the judge took Aguilar-Turcios' guilty pleas for the two offenses, the judge questioned him about the factual basis for the pleas. Regarding the Article 92 offense, the judge asked Aguilar-Turcios only to confirm visiting pornographic websites, while the judge asked about pornography involving minors for the Article 134 plea.

Aguilar-Turcios was put in removal proceedings after completion of his sentence and bad-conduct discharge from the Marines. DHS alleged that both of the convictions amounted to aggravated felonies under Immigration and Nationality Act (INA) section 101(a)(43)(I) as convictions for “an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography).” Applying the Ninth Circuit's then-valid missing element rule, the immigration judge found the Article 92 conviction was an aggravated felony and the Article 134 conviction was not and ordered removal. The permanent resident appealed the finding that the Article 92 conviction was an aggravated felony, but DHS unwisely chose not to appeal the finding that the Article 134 conviction was not. While the case was before the Ninth Circuit, the court overruled its missing element rule and issued en banc decision in Aguila Montes de Oca.

Aguila expanded what may be considered as part of the "conviction" when determining whether a particular conviction matches the generic definition of a deportable offense in the INA, i.e., conducting the modified categorical analysis. Previously, the court had held that if a person has been convicted of an offense that is missing an element of the generic definition under the INA, then there never could be a match between the two that would establish deportability. For example, a person convicted of assault could not be deportable for a firearms offense if the assault statute did not include a firearm as at least one means of committing the assault--even if a person in fact did use a firearm to commit the assault. Aguila overruled that precedent and held that a court may consider more than the elements of the statute to determine whether a match exists. It held that a court could also consider any facts necessarily found by the trier of fact in support of the conviction. “If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy the elements of the generic crime, then the factfinder necessarily found the elements of the generic crime."

In Aguila-Turcios then, the government (and Judge Bybee in dissent) argued that facts found for the Article 134 conviction could be considered in determining whether the Article 92 conviction amounted to an aggravated felony (because DHS waived its opportunity to argue that the Article 134 conviction also was an aggravated felony). This would have been a significant enlargement of Aguila, since Aguila specifies that the facts must have been necessary to support the conviction. How could the alleged fact of depiction of minors be necessary to the Article 92 charge when the government did not include it in the allegations and Aguila-Turcios did not admit it? He only needed to admit accessing pornography in general, and that is all he did admit for that offense.

Fortunately, the majority of the panel did not agree with the government and did not use the unsympathetic facts of this case to create bad law. The court held that for a conviction to be an aggravated felony under the INA, the factual basis for that particular conviction must satisfy the aggravated felony definition. Borrowing from another conviction doesn't cut it.

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The Board held that a conviction by a municipal court in Wichita, Kansas, for a violation of a municipal controlled substance ordinance is a conviction for immigration purposes because the proceedings were "genuine criminal proceedings." The respondent was fined and jailed for possession of marijuana in a municipal court. He later was convicted in a state court of a felony for possession of marijuana with a prior municipal court conviction. ICE then initiated removal proceedings, alleging removability for a controlled substance offense and for an aggravated felony. It alleged his possession with a prior conviction was an aggravated felony.

The respondent raised several arguments to attack the validity of the underlying municipal court judgment. The Board rejected the respondent's first argument that the municipal court proceedings were not genuine because there was no absolute right to counsel. Witchita apparently provides a right to appointed counsel only in municipal court cases where there is a possibility of incarceration, but not otherwise. The Board found this was consistent with the constitutional right to counsel for indigent persons, so it did not agree that the proceedings were not genuine. (It is unclear whether he actually had counsel or not, but he would appear to have the right to it because he received a sentence to incarceration for the municipal conviction.)

The respondent further argued that his lack of counsel (or advisement by the judge) deprived him of information about the potentially serious immigration consequences of his municipal court plea. The Board treated that as a collateral attack against the judgment, rather than as an argument that the proceedings were not genuine. As such the Board held that the respondent needed to make the argument to the criminal court, not to the Board. (Again, this argument is curious since he apparently did have a right to counsel.)

The respondent also argued that convictions in the Witchita municipal courts were not genuine because there is no right to jury trial on the charges. However, there is a right to trial de novo before a jury in a state district court if the municipal court finds the defendant guilty. The Board found this right to request a new trial if the defendant is dissatisfied is enough.

Additionally, unlike the Oregon procedures in Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004), Witchita municipal proceedings require the prosecutor to prove the offense beyond a reasonable doubt. The proceedings thus were genuine by that measure as well.

The impact of this case goes far beyond Witchita convictions, though. The reasoning behind it strongly indicates that California infractions will be considered convictions for immigration purposes as well. There had been some hope that Eslamizar signaled an intent to not treat infractions as convictions, particularly since in California there is no right to appointed counsel for them. Cuellar-Gomez dispels that hope. Further, California requires proof beyond a reasonable doubt for infraction convictions, so that argument from Eslamizar does not apply either.

The respondent in Cuellar-Gomez also argued that his municipal conviction could not support ICE's charge of removability under section 237(a)(2)(B)(i) for being "convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance." He was convicted under a municipal ordinance, not any law or regulation of a State. The Board rejected that argument because a municipality is a creature of the state, so its laws are laws of the state.

Finally, the Board held that Cuellar-Gomez's conviction was an aggravated felony because it corresponds to a federal felony under the Controlled Substances Act for recidivist possession, 21 U.S.C. § 844(a). As required for a federal recidivism felony, the prior conviction was final and respondent received advance notice of the enhancement for having a prior conviction.

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Today USCIS provided more information about eligibility for deferred action for undocumented persons who arrived in the U.S. as children. The news includes the following important developments for persons with criminal records:

  • Expunged convictions and juvenile delinquency adjudications will not count toward automatic disqualification.
  • Minor traffic offenses, including driving without a license, will not count toward automatic disqualification for having 3 or more non-significant misdemeanors (even if, as in California, driving without a license is a misdemeanor).
  • Several types of crimes were eliminated from the significant misdemeanor category, so that they do not form an automatic ground of disqualification. Notably, it eliminated crimes involving violence, threats, or assault; theft, larceny, or fraud; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; or unlawful possession of drugs. However, USCIS will continue to consider these offenses in deciding whether to grant deferred action in the exercise of discretion.
  • Any offense that resulted to a sentence to time in custody of more than 90 days now counts as a significant misdemeanor. Time in custody does not include suspended portions of sentences or time while the person is held on an immigration detainer.
  • Immigration-related state crimes (non-federal crimes) will not count toward automatic disqualification as either a felony or misdemeanor. In other words, the types of criminal immigration offenses created by the State of Arizona (and found unconstitutional by the Supreme Court) are not a basis for disqualification.

Learn more at www.uscis.gov/childhoodarrivals.

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The Ninth Circuit held that California Penal Code section 69, attempting to deter or resisting an executive officer, is not categorically a crime of violence for aggravated felony purposes. On its face, CPC 69 would seem to be a crime of violence since it may be violated in two ways: (1) by attempting through threats or violence to deter or prevent an officer from performing a duty imposed by law; or (2) by resisting by force or violence an officer in the performance of his or her duty. California jury instructions, however, provide that "violence" in this respect is synonymous with "force" and both "mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act."

The Supreme Court has held that under the first test for determining if an offense is a "crime of violence", 18 USC 16(a) ("an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another") an offense must be an active, violent crime. The Ninth Circuit has previously held that a California battery that requires only an offensive, noninjurious touching does not necessary meet that standard. CPC 69 requires only the same type of battery, so it is not necessarily a crime of violence either.

Although the offense is not a crime of violence under the first test for a crime of violence, the alternative test encompasses "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 USC 16(b). The Supreme Court has held that this test, like section 16(a), requires a level of intent of at least recklessness. Resisting an officer under the second prong of CPC 69 is a general intent crime that requires only the intent to resist with at least de minimus force. It does not require intentional use of violent force or reckless disregard of a substantial risk that violent force may be used (by the offender). In other words, a person may be convicted of CPC 69 for nonviolently resisting under circumstances where there is no substantial risk of that resulting in violent force. The court contrasted an Arizona statute that had been interpreted by the Arizona courts to exclude de minimus resistance and which required a substantial risk of injury to the peace officer. CPC 69 thus is not categorically a crime of violence.

The court remanded the case to allow the government to file additional conviction documents to establish that this particular conviction was for a crime of violence. When the case was before the agency, the Ninth Circuit's previous "missing element" rule was in effect and the government may not have had cause to submit documents for the so-called modified categorical analysis. Aguila Montes de Oca overruled the missing element rule after the agency decided the case, so the court found the government should have the opportunity to further contest the case under Aguila. The court rejected the petitioner's argument that Aguila's new rule should be applied only prospectively.

Finally, I would note that the fantastic decision in this case was surely the result of great lawyering by super lawyer Holly Cooper of the UC Davis Immigration Law Clinic.

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The Board held that a lawful permanent resident returning from abroad may be treated as an applicant for admission under 8 U.S.C. § 1101(a)(13)(C)(iii), and thus subject to the grounds of inadmissibility, if DHS proves by clear and convincing evidence that he engaged in illegal activity at the port of entry before admission. In this case, the resident allegedly attempted to bring an undocumented juvenile alien into the U.S. in violation of the law.

The Board first held that "illegal activity" clearly includes criminal activity such as alien smuggling. It suggested the language did have some limits and might not include other illegal, noncriminal activity such as torts, breaches of contract, or noncriminal regulatory violations. The resident had not argued, though, that smuggling would not be "illegal activity."

Instead, the resident argued the statute permits treatment of a returning resident as an applicant for admission only if the illegal activity occurred in a foreign country or on the high seas, since a port of entry is on U.S. soil and the statute says “has engaged in illegal activity after having departed the United States.” The immigration judge had agreed, but the Board did not. It held a noncitizen is not in the U.S. for immigration purposes until after inspection and admission.

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