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The Ninth Circuit addressed the statutory definition of a "conviction" for immigration purposes and held that it includes a formal judgment of guilt entered by a court, even if the case is still on direct appeal or if sentencing is not final. The court justified this departure from a long line of precedent, including a Supreme Court memorandum decision, based on IIRAIRA's creation in 1996 of a statutory definition of "conviction." The Ninth held that the plain language of the statute mandated its holding.

I invite my readers to suggest arguments on why this holding might be wrong.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/07-70730.pdf

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The Board held that recklessness is a sufficiently culpable level of scienter for a crime to involve moral turpitude, at least where it involves an intentional act done with unreasonable disregard of risk to life or property. In this case, the offense was driving a vehicle in a manner indicating a wanton or willful (i.e., reckless) disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of section 46.61.024 of the Revised Code of Washington (1997). The Board rejected the respondent's argument that reckless disregard of the danger to property would not involve moral turpitude and held that the offense categorically was a CMT.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3720.pdf

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"Clarifying" its previous opinion in Cheuk Fung S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010), the Ninth Circuit held that a noncitizen's admissions in removal proceedings could establish the link between the offense alleged in a charging document and an abstract of judgment for purposes of determining whether the conviction was for a removable offense.

S-Yong had held that admissions alone were not sufficient to meet the government's burden of proving removability (the record did not contain any conviction documents in that case). The government in Pagayon, however, did present a charging document alleging possession of methamphetamine and an abstract of judgment that indicated conviction of Health and Safety Code sec. 11377(a) for possession of an unspecified drug.

The Ninth Circuit held that Pagayon's response that possession of methamphetamine was his conviction met the government's burden of establishing that the conviction was for a deportable controlled substance offense. (Not all drug convictions involve substances that trigger deportability under federal law.)

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/24/07-74047.pdf

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The Ninth Circuit held here that a conviction for California Penal Code § 12025(a) categorically qualifies as a deportable firearms offense under INA 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

Section 12025(a) penalizes offenses related to carrying a concealed firearm upon the person or in a vehicle or causing a weapon to be concealed in a vehicle. The state courts have interpreted this broadly, holding, “[I]t is theoretically possible for a person to cause to be concealed a firearm that is not in his or her possession, custody, or control, such as by conduct that conceals from view a firearm that is in the possession and control of another person.” People v. Padilla, 98 Cal. App. 4th 127, 138 (2002).

The Ninth Circuit held that even this constructive possession, however, amounted to unlawful "possession" of a firearm for purposes of the grounds of deportability. The court noted the laundry list of offenses covered by the firearms deportability statute and opined that it evidenced a congressional intent to construe possession broadly. Judge Rymer dissented from this holding.

The court also addressed the antique firearms exception to the deportability statute, since California law does not contain the same exception. It held that the antique firearms exception is an affirmative defense, which need not be considered under the categorical analysis--at least where the noncitizen does not assert that it applies.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-74371.pdf

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Typically, I blog about only immigration opinions that relate to criminal convictions, but I had to address this recent decision on the so-called "permanent bar."

The Ninth Circuit held that the noncitizen was inadmissible under INA 212(a)(9)(C)(i)(I) because she reentered the U.S. without admission after a prior period of unlawful presence of more than a year. It said the unlawful presence accrued between 1981 and 1983. The only problem with that finding is that periods of time before April 1, 1997, do not count as "unlawful presence" for purposes of section 212(a)(9)(C)(i)(I), at least according to USCIS. See Adjudicator's Field Manual, 40.9.2(a)(9)(a).

USCIS's interpretation is well founded given the law that created section 212(a)(9)(C)(i)(I) provided for a general effective date of April 1, 1997, and did not specify a different effective date for that particular provision. See IIRAIRA sec. 301(b), 309(a). Indeed, the statutory term "unlawful presence" did not exist in 1981, 1983, or any other time before the enactment of IIRAIRA.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/09-72059.pdf.

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The Board held that a conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for telephoning a person protected by the order constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.

Section 237(a)(2)(E)(ii) provides that an alien admitted to the U.S. who violates "the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable."

The Board concluded that contacting the subject of a protection order by telephone made the respondent deportable even if the call did not involve threats or repeated harassment. It reasoned that the no-contact portion of a protection order (as opposed to portions concerning attending counseling or paying costs) involved protection from credible threats, repeated harassment, or bodily injury because a court would only issue it if there had been past abuse or threats and the no-contact order protects the victim from being victimized again.

In reaching that conclusion, the Board did not discuss the potential significance of the fact that the case involved a temporary protection order, which typically is issued before the court determines if credible threats of violence, repeated harassment, or bodily injury actually had occurred.  Indeed, the telephone call in this case occurred twenty days before the hearing on the restraining order.  The temporary restraining order thus apparently was based only on the woman's unproven allegations.

The Board's construction gives no effect to the statutory language that seems to require a determination that the threats, repeated harassment, or bodily injury had occurred and that any threats were credible.  A better construction would require, at least in the case of unproven ex parte temporary restraining orders, that the immigration judge actually find that the violation did involve such conduct.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3714.pdf.

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The Ninth Circuit remanded this case to the BIA to determine whether a conviction for failure to register as a sex offender in violation of California Penal Code section 290(g)(1) is a crime of moral turpitude.  The BIA in this case had held that it categorically was a CMT pursuant to its decision in Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007).

After its decision, however, the Ninth Circuit issued a contrary decision regarding the Nevada sex offender statute, finding that it was the underlying sex offense and not the failure to register that constituted a CMT.  See Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir.2008).

The Attorney General also issued a decision casting doubt on Tobar-Lobo. The AG's decision in Silva-Trevino held that an offense must have some level of scienter (criminal intent) to qualify as a CMT.  California penalizes failure to register even if it is due to mere forgetfulness, which is in tension with the requirement that a CMT have an element of intent (at least of recklessness, rather than mere negligence).

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/05/11/07-71988.pdf

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The Board held that immigration judges may NOT go beyond the record of conviction to determine whether a crime involves moral turpitude if the record of conviction conclusively establishes it did not.  This is an often overlooked corollary of the Attorney General's decision in Silva-Trevino.  (See my post at http://crimeandimmigrationlawyer.com/blog/2011/03/01/matter-of-samuel-esaul-guevara-alfaro/.)

In Ahortalejo-Guzman, the respondent was convicted of simple assault, and the criminal court specifically noted that the conviction did not involve family violence.  Simple assault is not a crime of moral turpitude.  The immigration judge, however, went beyond the conviction documents to consider police reports and testimony.  The police reports and testimony indicated the respondent committed a crime of domestic violence.  The IJ found that the domestic violence involved moral turpitude and denied the respondent relief from removal based on that.

The Board held the IJ erred.  It cited Silva-Trevino, which stated that an IJ could consider evidence outside the record of conviction only after determining that the record of conviction documents were ambiguous as to whether the offense involved moral turpitude. It noted that this sequential, hierarchical approach "serves the important function of recognizing and preserving the results of a plea bargain, where the parties, with the consent of a trial judge, agree to allow the defendant to plead to a less serious crime."

This case is a bit unusual, however, since the criminal court specifically found that the offense did not involve family violence.  It remains to be seen whether something this explicit is necessary, although it certainly should be considered a best practice in making a plea now.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3709.pdf.

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The court held that a felony violation of Revised Code of Washington section 9A.44.089 (sexual contact with a 14 or 15 year-old by a person at least 48 months older) constitutes a crime of child abuse within the meaning of the ground of deportability at INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).

The opinion telegraphed its outcome by gratuitously describing the offense as "child molestation." The elements of the offense described by the court, however, appear to permit conviction for consensual sexual activity between a 15 year-old and a 19 year-old.  Consensual sex with a 15 year-old may be unlawful, but it only became so in the U.S. over the last century.  It is hardly equivalent to the types of crimes one normally thinks of upon hearing the term "child molestation."

Moreover, little analysis accompanies the opinion.  The primary question is whether the offense amounts to "abuse."  The opinion answers the question simply by stating the conclusion: "Section 9A.44.089 makes illegal the act of touching the sexual or other intimate parts of the victim when the victim is either 14 or 15 years old and the perpetrator is at least forty eight months older. This conduct, at a minimum, constitutes maltreatment of a child and impairs the child’s mental wellbeing."  This is hardly obvious in the case of consensual sexual activity between a 15 year-old and a 19 year-old.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/31/09-72766.pdf

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