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In  Matter of Tatiana Aceijas-Quiroz, USCIS denied the U.S. citizen petitioner's immigrant petition for his wife.  This the first of three Board of Immigration Appeals decisions issued on May 20, 2014, that concern the immigration consequences of convictions for U.S. citizens.  Under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), certain convictions will disqualify a citizen from petitioning for an immigrant family member.

USCIS found, and the petitioner did not dispute, that his prior convictions for sexual abuse and for contributing to the sexual delinquency of a minor were "specified offenses against a minor" under the Adam Walsh Act.  He therefore was ineligible to petition for his wife unless he could demonstrate that despite those convictions he posed "no risk" to her.  USCIS denied the petition because it was not satisfied that he posed no risk to her.  In doing so, it required him to show "beyond a reasonable doubt" that he posed no risk.  This standard, which typically does not apply in civil immigration proceedings, does not appear in the statute or regulations.  It was imposed by USCIS memo.

The petitioner appealed to the Board, arguing that the heightened beyond a reasonable doubt standard of proof should not apply.  The Board, however, determined that it did not have jurisdiction to review the question because it found the Adam Walsh Act gave USCIS sole authority to determine whether a petitioner posed no risk to a beneficiary and that includes sole authority to determine the standard of proof for that issue.

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In yet another positive development in the State of California, the maximum potential sentence to imprisonment for misdemeanors is now 364 days. It accomplishes this by adding section 18.5 to the Penal Code, which provides:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.

Governor Brown signed the bill, SB 1310, on July 21, 2014. Since the text of the bill does not specify otherwise, criminal defense attorneys should assume that the change does not go into effect until January 1, 2015.  Until then, attorneys should pursue other strategies to protect their clients.

There are three major benefits for non-citizens convicted of a misdemeanor that carries a 364 day maximum potential sentence.  First, the conviction could not meet the federal definition of an aggravated felony based on a 365 day sentence to imprisonment (be careful, though, because some aggravated felonies do not require any sentence to imprisonment).

Second, a California misdemeanor conviction would no longer make an immigrant deportable for conviction of a single crime involving moral turpitude (CIMT) committed within 5 years of admission, since that ground of deportability only applies if the conviction carries a maximum potential sentence to imprisonment of one year or more.

Third, a single misdemeanor CIMT conviction that results in a sentence to imprisonment of 6 months or less would no longer automatically disqualify a non-permanent resident from cancellation of removal.  Cancellation of removal is discretionary relief from removal based on continuous physical presence of 10 or more years and exceptional and extremely unusual hardship to a citizen or permanent resident family member.

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In this illegal reentry decision, the Ninth Circuit held that firearms convictions under state statues that encompass both "antique" and non-antique firearms do not satisfy the federal ground of deportability for conviction of a firearms offense. The defendant here had been removed for conviction under such a statute, so the court found the removal order invalid and reversed the conviction.

The federal definition referenced by the firearms ground of deportability explicitly excludes antique firearms, while former section 12021(c)(1) of the California Penal Code, does not. In other words, there is no complete match between the two definitions and a conviction for the California offense should not categorically trigger deportability. The Ninth Circuit previously had resisted this logic, primarily because the antique firearms exception is an affirmative defense in a federal prosecution. In Moncrieffe, the Supreme Court found, albeit in dicta, that whether it is an affirmative defense or not does not matter. What matters is the congruence between the definitions. An offense meets a federal definition only if all of the conduct penalized by it meets the definition, including the least culpable conduct that there is a "realistic probability" of the state prosecuting. Aguilar-Rios cited cases showing California regularly prosecuted offenses involving antique firearms under PC 12021(c)(1), so the least culpable conduct for a conviction clearly did not meet the federal firearms definition.

Moreover, as in the marijuana statute at issue in Moncrieffe, former California PC 12021(c)(1) was not divisible into alternative, separately defined offenses involving antique or not-antique firearms. Thus, the court held it could not examine the record of conviction to try to determine whether Aguilera-Rios's offense actually involved an antique firearm.

Although this decision concerned a firearms statute that existed before the Deadly Weapons Recodification Act of 2010 went into effect on January 1, 2012, it should apply equally to offenses under the reorganized statute that do not distinguish between antique and non-antique firearms. This would include current sections 25400(a), 27500, 29800, and 33215 of the Penal code, according to the ILRC.

Finally, I should point out that the panel's decision confusingly states Aguilera-Rios's "conviction is not a categorical match for the federal aggravated felony" definition. This apparently is an error, since the recited facts indicate Aguilera-Rios was only found deportable for conviction of a firearms offense, 8 U.S.C. 1227(a)(2)(C), not a firearms aggravated felony. This error is not significant, though, since both reference the same federal definition of a firearm.

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The California Department of Justice, Division of Law Enforcement, has issued a bulletin on the responsibilities of local jurisdictions under the TRUST Act and potential liability for detaining a person pursuant to an ICE request. Read my previous blog post for more on the TRUST Act. As for liability, the bulletin notes a district court in Oregon found detainers are voluntary requests, and thus a jail may be held financially liable if it turns out there was no probable cause for the detention. This is a worrisome prospect because ICE often issues detainer requests on scant evidence and in the past has even issued detainers against U.S. citizens.

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In this sentencing case, a panel of the Ninth Circuit has once again concocted a way to squirm out of the categorical analysis.  The Supreme Court's harsh rebuke just last term in Descamps apparently has had little effect.  After reciting the admittedly terrible facts of the case (a parolee pimping out a 14 year-old runaway and using her to produce porn after prior convictions for sex with a minor and conspiracy to pander a minor), Judge Ikuta's opinion announces it is applying the categorical analysis and then utterly subverts it.

The portion of the opinion reviewed here concerns the use of the categorical analysis to determine whether a sentencing enhancement for a prior conviction for sexual abuse of a minor applies.   The opinion first notes the generic federal definition of sexual abuse of a minor requires conviction of either (a) a sexual offense with a minor that is inherently abusive or (b) an offense that involves knowingly engaging in a sexual act with a minor between the ages of 12 and 16 and a 4 year age difference.  The opinion then recognizes that Ninth Circuit precedent holds the defendant's prior conviction for California Penal Code section 261.5(d) (unlawful sex with a minor younger than 16 by an adult 21 or older) does not categorically meet this definition (and that by extension his prior conviction for PC 288a(b)(2) does not either).  PC 261.5(d) is not inherently abusive because it could involve consensual sex with a minor just one day shy of 16.  Nor does it meet the alternative test because the conviction does not require that the defendant know (or that he reasonably should know) the minor is under the age of 16.

No match should mean that the mandatory minimum sentences applied by the district court judge (25 years and 10 years) do not apply, but the panel snatches victory from the jaws of defeat with the magic words "relating to."   The panel finds that the sentencing enhancement requires only conviction of an offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact with a minor or ward."  It explains this "mandates the enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense.”   Whatever that means, the panel holds it does not require the conviction to have the same elements as the generic definition.

The opinion cites a Ninth Circuit decision, United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007), as support for its holding.  The citation, however, is suspect because it pre-dates the Supreme Court's last four decisions on the categorical analysis (Nijhawan, Johnson, Moncrieffe, and Descamps), which all have emphasized the primacy of elements when evaluating whether a conviction meets a federal definition.  Moreover, actually reading the Sinerius decision reveals that it does not offer quite as much support as the Sullivan panel asserts.  Sinerius does expound on "relating to," but its actual holding does not purport to dispense with a categorical analysis of the elements of the offense. Instead, It simply found that the generic definition of sexual abuse meant more than federal statutory rape, that it also covered sexual offenses with children younger than 14.  And then it compared the elements of the statute of conviction to that generic definition.  Sinerius does not assert that a conviction can satisfy a federal generic definition even if it is missing an element of the generic definition.

The flawed reasoning of Sullivan unfortunately has potential consequences beyond its application here.  For example, a conviction for an offense "relating to" a federal controlled substance makes a noncitizen deportable or inadmissible.  Thus, the panel's reasoning could be used to argue a conviction for California Health and Safety Code section 11377(a) "relates to" an offense involving a federally controlled substance even if the conviction actually did not (because some of the substances covered by it are not prohibited by the federal Controlled Substances Act).  This certainly would be news to another Ninth Circuit panel that recently held 11377(a) does not categorically make a noncitizen inadmissible.  See Quijada Coronado.  Ditto for another panel on a Hawaii controlled substances statute.  See Ragasa.

Let's hope the other judges on the Ninth Circuit see this chicanery for what it is.

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In this illegal reentry case, a Ninth Circuit panel held that battery on a peace officer that causes injury in violation of California Penal Code (CPC) section 242/243(c)(2) is categorically a crime of violence under the sentencing equivalent of the definition at 18 U.S.C. 16(a) (effectively tripling the prison exposure).  It found CPC 243(c)(2) requires as an element the willful use of force against the person of another sufficient to cause injury.  It notes a California Court of Appeal decision that equates willful with intentional and thus concludes that a battery willfully inflicted that causes injury is a crime of violence.

Seems reasonable at first glance, except the court glosses over a lot in a way one wouldn't expect for a published decision.  First, the willfulness that the court makes a big deal about is located in the definitional statute at 242.  That willfulness is just the general intent to effect a simple battery.  A simple battery can include any form of unlawful touching--even a push that causes no injury.  And the Ninth Circuit has previously held that a simple battery with that type of intent is not a crime of violence.  Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (simple battery against a domestic victim is not a crime of violence for purposes of the domestic violence ground of deportability).

It is the resulting injury that triggers the enhanced sentence at 243(c)(2), and the injury need not be intentional.  Thus, pushing a peace officer would be punishable under CPC 243(b) (misdemeanor) if it causes no injury, while the same push with the same level of force would be punishable under CPC 243(c)(2) (felony or misdemeanor) if it causes the cop to trip over something and he needs an ice pack (we are not talking great bodily injury, or GBI, here).  Either way, it does not matter what the defendant intended because there is no element of specific intent to cause injury, just the general intent to complete the contact.

This is why the court's reliance on United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) is way off base.  Laurico-Yeno concerned CPC 273.5, which penalizes a person who "willfully inflicts upon [a protected domestic victim] corporal injury resulting in a traumatic condition." There, unlike CPC 242/243(c)(2), the injury is willfully inflicted.

It gets worse, though.  The California Court of Appeals opinion that the panel cites for support actually undermines its position.  The discussion of willfulness in People v. Lewis, 15 Cal. Rptr. 3d 891, 901 (CA 4 2004) first notes, "Usually the word "willfully" defines a general intent crime unless the statutory language requires an intent to do some further act or achieve some future consequence."  Therefore, "When the structure of a section requires a willful act followed by some particular result, then it is reasonable to read the willful, i.e., intentional, element as referring only to the initial act and not to the ultimate result. In such sections the word "willfully" does not require the defendant intend the ultimate result, only that he or she intended the initial act." That is precisely why a simple battery that results in injury (that need not be intended) does not comport with the Supreme Court's holding in Leocal that a crime of violence must actually be violent.

Let's hope there is a request for en banc rehearing to reconcile this case with Ortega-Mendez and with the spirit of the Supreme Court's recent decisions.

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In a matter of first impression in this circuit, the Ninth Circuit found that the BIA could consider a sentence enhancement in determining whether a non-aggravated felony conviction was nonetheless a particularly serious crime that would bar withholding of removal.  Konou had argued it could not because Ninth Circuit precedent holds a sentencing enhancement cannot be considered when determining if a conviction is an aggravated felony.  The court pointed out that a conviction does not need to meet the aggravated felony definition in order to be deemed particularly serious.  The particularly serious crime determination is a discretionary case-by-case determination.

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The Ninth Circuit held that aggravated assault in violation of Arizona Revised Statute 13-1203 is not categorically a crime of violence pursuant to 18 U.S.C. 16(a) because it encompasses reckless conduct in addition to knowing or intentional conduct.  A mens rea of mere recklessness is not enough--the Ninth Circuit has held that at least extreme recklessness is required.  Applying the modified categorical analysis, however, the court found  the defendant pleaded guilty to charges that alleged only intentionally placing the victim in reasonable apprehension of imminent physical injury.  It thus was a crime of violence.

Since the defendant received a 12 month sentence for this crime of violence conviction, the court held it was an aggravated felony. This aggravated felony conviction precluded voluntary departure in the removal proceedings that followed, so the defendant was not prejudiced when the immigration judge did not advise him about voluntary departure.  The court therefore found he could not collaterally attack the removal order and upheld his conviction for a subsequent attempted illegal reentry with a sentence of 70 months.

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The Alameda County Sheriff's Office is no longer honoring ICE detainer requests, period. The development likely has a lot to do with the court decisions that have held a local jail could be legally and financially responsible for an erroneous hold, not to mention the fact ICE does not even compensate the county for the expense of holding the person in custody for an additional day or two.

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