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The Ninth Circuit held that the deadline for special motions to reopen proceedings to apply for 212(c) relief under St. Cyr was a constitutionally sound procedural rule.

Luna filed late and had argued that the deadline “irrationally disallows any alien not made aware of the time limitation from seeking a reopening.” The Ninth Circuit noted, though, that the rule was published in the Federal Register and that persons are presumed to know the law.

Further, the Ninth Circuit rejected Luna's argument for tolling of the deadline because the record did not show due diligence. It left open the possibility of tolling under other circumstances, though.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/09/19/08-71086.pdf.

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The panel withdrew its published opinion in Aguilar-Turcios v. Holder, 582 F.3d 1093 (9th Cir. 2009) based on the en banc decision in Aguila Montes de Oca (see my Aguila post) and directed more briefing. This case presents a clear example of the change that Aguila will effect.

In this case, a marine was court martialed for disobeying a general order, which in this case prohibited the use of government computers to access pornography (legal or illegal). The prosecution alleged some of the pornography accessed (6 pictures) involved minors. He pled guilty to accessing pornographic websites. At some point, he also admitted that six of the pictures involved persons under 18, although it is not clear from the earlier panel decision whether he did this in his plea or in the removal proceedings. The government sought to remove him for conviction of an aggravated felony for conviction of a child pornography offense (8 U.S.C. § 1101(a)(43)(I)).

The original panel decision, over Judge Bybee's dissent, found that the modified categorical approach could not conform the conviction to the immigration aggravated felony definition for conviction of a child pornography offense because the offense never requires that the images involve minors--it only requires that the images amount to pornography (including of adults). In other words, it was missing an element of the generic aggravated felony offense. Aguila rejected the missing element rule and likely will compel a different result in this case (but feel free to disagree by posting a comment below!).

Read the order at http://www.ca9.uscourts.gov/datastore/opinions/2011/08/29/06-73451.pdf

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The en banc Ninth Circuit found, as the government conceded, that it had jurisdiction to review the determination of whether a crime is particularly serious for asylum and withholding of removal purposes. The Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827, 837 (2010), compelled this result because Congress did not explicitly set out the Attorney General's discretionary authority in the text of the statute. The Ninth Circuit overruled its contrary precedent in Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir. 2001). It further held that the BIA had the authority to determine whether crimes were particularly serious on a case by case basis.

Delgado had three DUI convictions that the immigration judge held were particularly serious crimes, both individually and collectively. The BIA affirmed with no independent analysis, but did not expressly adopt the IJ's decision or review it for abuse of discretion. Thus, the Ninth could not determine the reasoning behind the BIA's decision and remanded for explication. The court noted the BIA could have found that one or more of the convictions could have been a particularly serious crime individually, they could collectively be a particularly serious crime, or the last of the three could be a particularly serious crime in light of the priors.

Judge Reinhardt concurred, but argued that the BIA would abuse its discretion if it found a run-of-the-mill DUI to constitute a particularly serious crime that barred asylum and withholding of removal. Under current law, a DUI does not even constitute a criminal ground of inadmissibility or deportability (although it does raise the issue of inadmissibility for having a mental disorder and an associated behavior that poses a risk to the public safety), so barring protection for a person who faces a risk of persecution or death on that basis doesn't make sense. Judge Reinhardt noted that even if a DUI did not constitute a categorical bar, the agency still would have the authority to deny asylum based on the DUI in the exercise of discretion--which would better allow the adjudicator to weigh the seriousness of the crime against the reasons for granting relief.

Judge Reinhardt's concurrence also maintained that the BIA would err if it analyzed the convictions collectively or if it found the last to be particularly serious based on the priors. The statutory text indicates that a crime's seriousness should be assessed separately.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/08/19/03-74442.pdf

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Sitting en banc, the Ninth Circuit has overruled the "missing element" rule established in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc). Navarro-Lopez had held that record of conviction documents can never establish that a person was convicted of a generic offense where the statute of conviction lacks an element of the generic offense.

The missing element rule had held that a jury would never be required to find, or the defendant would never be required to admit, a fact that was not an element of the offense, even if the charging document contained superfluous language that alleged commission of the generic offense.

Based on Navarro-Lopez, the panel decision in Aguila had held that a California burglary conviction can never be a generic burglary for federal recidivism (or removability) purposes because California does not require an unlawful (i.e., trespassory) entry. The en banc decision in Aguila overruled this holding.

The en banc decision in Aguila adopted a looser standard. It held that a court may use the modified categorical analysis to determine whether a conviction under a statute missing an element of the generic offense "necessarily rested" on facts that would satisfy the generic federal definition of a crime. The hypothetical it employed to illustrate its holding involved the generic offense of harmful contact with a gun. It posited three state statutes: the first penalizes harmful contact by means of one of various specified weapons, including a gun; the second statute penalizes harmful contact by means of a "weapon" without providing a list of qualifying weapons; and the third statute penalizes only harmful contact, without requiring any use of a weapon. Aguila held that a recidivist penalty could be applied (or removability established) for harmful contact with a gun under any of these three types of statutes if the record of conviction documents show that the conviction necessarily rested on it. In other words, if the prosecutor asserts use of a gun to commit the harmful contact in the charging document and the defendant pleads guilty or is convicted of the alleged offense, then Aguila holds the generic offense of harmful contact with a gun is established.

Judge Berzon's dissent points out this approach is unfair because a jury never is required to find a fact that is not an element of the crime. Thus, where a statute penalizes harmful contact, but does not require use of a gun, a jury never needs to agree on the means of inflicting the harmful contact. Likewise, in a guilty plea a defendant is not required to admit a non-element fact. This may seem silly in the case of the gun hypothetical, since obviously a gunshot wound is much different than a black eye (and thus a jury would be unlikely to disagree about whether a gun or fist was used).

The importance of maintaining the missing element rule is much more obvious in the burglary case actually decided by Aguila. California does not require that a burglary involve an unlawful (trespassory) entry, so it may be committed where a person has been invited into the home explicitly or implicitly. For example, a person who attends a garage sale and enters the living room where items are available for sale with the intent to steal commits a burglary under California law. The generic definition of burglary, however, requires an unlawful entry, such as where a person attending a garage sale sneaks into an off-limits living room to steal. The charging document and the evidence at trial might indicate the prosecution's theory that the person sneaked into the living room without permission, but the jury would not need to agree in order to convict. Some jury members may think the defendant entered with permission and some not, and there would be no way of knowing. Yet, under the en banc decision in Aguila, the fact that it was the prosecution's theory for the conviction would establish the conviction qualifies for a criminal enhancement or removal.

Judge Berzon forcefully argues that the approach sanctioned by the majority is inconsistent with the Supreme Court's decisions Taylor, Shepard, and its recent decisions in Nijhawan v. Holder, 129 S. Ct. 2294 (2009) and Johnson v. United States, 130 S. Ct. 1265 (2010). Taylor and Shepard clearly indicate that the elements of the statute, and not the facts of the individual case, are what matter. Nijhawan and Johnson implicitly suggest that the modified categorical approach should be applied only to divisible statutes, i.e., statutes that specifically list the means of committing an overbroad offense (for example, where the statute penalizes harmful contact specifically with a firearm, knife, or club). The majority acknowledges that what it describes as "dicta" in Nijhawan and Johnson support this view, but then takes a different view.

The majority, however, still finds that the California burglary conviction in Aguila does not satisfy the generic definition of burglary--even though the charging document in Aguila alleged an unlawful entry--due to the California's atypical definition of "unlawful." It held that California defined unlawful only as with the intent to commit theft or any felony, not unlawful in the sense required by the generic definition that it be trespassory or without permission. Thus, the allegation of an unlawful entry in the charging document did not conform the conviction to the generic definition.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/08/11/05-50170.pdf

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In another brilliant decision by Judge Berzon, the Ninth Circuit rejected the BIA's determination that California second-degree commercial burglary is an attempted theft offense that qualifies as an aggravated felony with a sentence to a year or more. It also held that the offense is not a crime involving moral turpitude (CIMT) either.

AGGRAVATED FELONY

The BIA had held that entering a building with the intent to commit theft amounted to an overt act that constituted a substantial step toward completion of the theft. The Ninth Circuit disagreed, primarily because the building the petitioner entered was a business open to the public.Mere preparation to commit a crime does not constitute attempt. The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. A suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrate that the crime will take place unlessinterrupted by independent circumstances.

The Ninth Circuit held that, for example, breaking into a locked vehicle amounted to a substantial step toward the completed offense of theft, since it is the type of conduct that strongly corroborates the criminal purpose to commit theft. On the other hand, simply walking into a store open for business does not. Most people who walk into a store do not commit theft, so it is not the type of act that is substantial enough for attempt.

CRIME INVOLVING MORAL TURPITUDE

The Ninth Circuit also determined that commercial burglary is not a CIMT. It first determined that it owed no deference to the BIA's holding on this point, since it was unpublished and not persuasive because the brief analysis either misapprehended the elements of California burglary or Ninth Circuit precedent. Namely, the BIA appeared to equate commercial burglary with residential burglary.

The Ninth then determined that commercial burglary was not equivalent to traditional CIMT's. It is not equivalent to theft because it does not involve a taking or deprivation, and it is not an attempted theft offense as discussed above. Nor does it involve fraud, since there is nothing explicitly or implicitly fraudulent about walking into a store.

Nor is entering a commercial building open to the public with the intent to commit theft a crime that is so depraved or reprehensible that it otherwise amounts to a CIMT. "To hold otherwise would mean that someone who did what Hernandez Cruz admitted doing—walking into a commercial building with the intent to commit larceny—but then changed his mind and walked out without ever committing any crime, would be guilty of a CIMT." "If it did, the phrase 'moral turpitude' would be devoid of all meaning."Of course, BIA precedent has gone a long way toward sapping the meaning from moral turpitude.

Read decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/08-73805.pdf

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The Board held that grant of an INA 212(h) waiver for an offense listed under section 212(a)(2) would not remove the bar to section 240A(b) cancellation of removal for a non-permanent resident who has a conviction for a 212(a)(2) offense.

The Board reached this conclusion based on the statutory language of 240A(b), which requires that the noncitizen “has not been convicted of an offense under section 212(a)(2).” The Board determined that this language referred to actual convictions, not to whether an applicant was "inadmissible" for such a conviction. In contrast, other portions of the Act (including VAWA cancellation) refer to "inadmissibility" or "deportability." Since 212(h) waives only inadmissibility, but does not affect the existence of the conviction, it does not eliminate a conviction for purposes of eligibility for cancellation.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3722.pdf

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The Board held that a conviction under California Penal Code section 220 (1994) with a sentence to a year or more is a categorical aggravated felony as a crime of violence under both 18 U.S.C. 16(a) and (b). PC 220 penalizes assault (creating an apprehension of imminent battery) with intent to commit mayhem, rape, or certain other sex offenses.

Even if the assault does not result in an actual application of violent force, the Board found that it is a categorical crime of violence under 18 U.S.C. 16(a) as an offense that has as "an element the use, attempted use, or threatened use of [violent] physical force against the person or property of another." The Board found that the intent, as interpreted by the California Supreme Court, requires the specific intent to use whatever level of violent force is required to complete the object of the offense. Since the intent is to complete the object of the assault (mayhem, rape, etc.), the Board held that every assault under PC 220 required at least attempted use or threatened use of violent force against another.

The Board also held that PC 220 is a categorical crime of violence under 18 U.S.C. 16(b) too, which 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.”

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3723.pdf

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In this opinion, the Ninth Circuit explains the evidentiary standard for inadmissibility under INA § 212(a)(2)(C) for being an alien who the consular officer or the Attorney General knows or has reason to believe . . . is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of Title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the same. The question is who must have the necessary “reason to believe” and at what time.

The court held that the reason to believe must be collectively known by the officials adjudicating the question of admissibility. At the time of entry, that would be the CBP inspector and any other appropriate officials within one of the DHS agencies. If the inspector does not admit the noncitizen and instead puts him or her into removal proceedings for inadmissibility, then the immigration judge (or BIA, once on appeal) is the official that must have reason to believe. In the latter situation, the IJ and BIA are not limited to the facts known at the time the noncitizen's inspection at the port of entry. Later obtained evidence, the respondent's testimony, and even expert testimony may be considered. The court then will review the decision of the IJ and the BIA for substantial evidence.

The court also found that, although the credibility of the noncitizen was important, it did not need to deem the testimony credible in the absence of an explicit adverse credibility finding.

Read the decision at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/06-70635.pdf

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Today, July 14, 2011, is a dark day for immigration law in the Ninth Circuit. The en banc court overruled Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and held that state rehabilitative relief for a single conviction for possession of a controlled substance does not protect against immigration consequences. Attorneys who watched the brutal oral argument in this case (the video is available on the court's website) anticipated this outcome, but at least it came with a small consolation prize.

The Ninth Circuit held that its decision in Nunez-Reyes would have only prospective effect, citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) as authority for prospective application. Since the decision applies prospectively, Lujan-Armendariz continues to protect noncitizens "convicted" of simple possession before Nunez-Reyes's publication date of July 14, 2011. For noncitizens convicted after that date, Lujan-Armendariz is overruled. (The Court did not address whether noncitizens convicted "on" the publication date would continue to benefit from Lujan.)

Significantly, the language of Nunez-Reyes strongly supports the idea that the critical fact is whether the noncitizen pled guilty or no contest before the publication date. Persons who pled before today gave up their constitutional rights (to trial by jury, to confront witnesses, etc.) in reliance on Lujan-Armendariz, so they should not be "hoodwinked" into being deported for doing so. Whether they actually completed the requirements for rehabilitative relief before today, however, would seem to be irrelevant. Thus, expungements and other rehabilitative relief obtained after today should still be effective, so long as the plea occurred before today. The court did not explicitly say this, but the reasoning implies it.

Nunez-Reyes also overruled the court's recent decision in Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), and held that state rehabilitative relief did not protect against immigration consequences for a conviction of being under the influence of a controlled substance. Unlike Lujan, though, the court overruled Rice retroactively because it was such a recent decision that there was less reliance on it. It also distinguished being under the influence from possession, holding that the former was not a lesser offense (even though in California the former is a misdemeanor and the latter can be a felony). The court reasoned that dangerous behavior might accompany being under the influence of methamphetamine, but would not necessarily accompany simple possession. In short, though, rehabilitative relief does not protect against removal for being under the influence of a controlled substance, even if the plea occurred before today.

Nunez-Reyes does suggest, though, that possession of paraphernalia IS a lesser offense to possession (at least where the defendant pleads down from possession to paraphernalia). So, noncitizens would continue to benefit from Lujan if the paraphernalia plea occurred before today.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/14/05-74350.pdf

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