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In this case arising from the Commonwealth of the Northern Mariana Islands (CNMI), the Ninth Circuit held that Etumai Felix Mtoched's 1994 conviction for assault with a deadly weapon in violation of 6 N. Mar. I. Code § 1204(a) was a deportable crime involving moral turpitude. It further found that ground of deportability could retroactively apply to Mr. Mtoched even though he was convicted of the offense before the Immigration and Nationality Act (INA) took effect in CNMI. Finally, it held that Mr. Mtoched could not apply for a 212(h) waiver of inadmissibility because he was already in the U.S. and was not eligible to adjust status.

Concerning the first question of whether Mr. Mtoched's assault with a deadly weapon conviction was a crime involving moral turpitude (CIMT), the panel found the statute of conviction was "divisible into three distinct subparts, all involving bodily injury to another person with a dangerous weapon: (1) threaten to cause, (2) attempt to cause, or (3) purposely cause." In reaching this conclusion, however, the panel appears to have assumed divisibility from the text of the statute. Its opinion failed to address prior precedent that holds an offense is divisible only if a jury must unanimously agree on which of multiple alternative elements a defendant committed. See Rendon v. Holder. The Mtoched panel simply ignored that precedent even though the Ninth Circuit had declined to rehear Rendon en banc more than a month earlier.

The panel also held that the CIMT ground of deportability could be applied to Mr. Mtoched even though he was admitted to CNMI, the crime was committed, and he was convicted before the U.S. immigration laws applied to CNMI. As the government agreed, Congress was not explicit in applying the INA to CNMI retroactively. The court therefore considered whether applying the change to Mr. Mtoched "would impair rights [he] possessed when he acted, increase [his] liability for past conduct, or impose new duties with respect to transactions already completed." It determined that Mr. Mtoched's conviction made him deportable under the law that existed in CNMI prior to the INA, and the change also did not make him ineligible for any form of discretionary relief that he was previously eligible for. Both before and after the change, his only hope to remain in CNMI was an exercise of prosecutorial discretion. The fact that the CNMI Attorney General did not move to deport him and the federal government did does not make the change in law retroactive.

At the end of the decision, the panel held, as the Board of Immigration Appeals did, that Tmoched was not eligible for 212(h) because he was present in the U.S. and was not eligible to adjust status. It added a cryptic note saying that he was not eligible to adjust status because he was present in the U.S. as "a citizen of Palau who may enter the United States as a non-immigrant under the section 141 of the Compact of Free Association with the Republic of Palau." It is true that persons admitted without a visa, which is apparently how Mr. Tmoched was admitted, are ineligible to adjust--unless they are eligible for adjustment of status as an immediate relative (spouse or minor child under 21 of U.S. citizen, or parent of U.S. citizen 21 years of age or older). Thus, the real problem appears to be that Mr. Tmoched did not have one of those relationships.

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The Board of Immigration Appeals previously held that Chairez's conviction for felony discharge of a firearm in violation of section 76-10-508.1 of the Utah Code is a removable firearms offense, but not an aggravated felony.  Visit my previous post for that decision. DHS did not like that decision and filed a motion to reconsider, arguing it was not consistent with the emerging law of the Tenth Circuit (in which Chairez's removal proceedings were held).

The Board's previous decision in Chairez concluded that a conviction of section 76-10-508.1(1)(a) is not categorically a crime of violence aggravated felony because the conviction may rest on intentional, knowing, or reckless conduct and reckless conduct will not support a crime of violence conviction.

The Board's previous decision further held that it could not look to the record of conviction to determine whether Chairez pleaded guilty to committing the offense with intent, knowledge, or recklessness. The Supreme Court in Descamps held that so-called modified categorical analysis was permitted only where the statutory definition of the offense was divisible into multiple alternative elements.  And the Board understood elements to mean those facts about the crime that a jury would need to agree upon to convict (as opposed to means, such as baseball bat vs. pipe, on which a jury need not agree).  The Board found that Utah law did not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness in discharging a firearm in violation of section 76-10-508.1(1)(a), so it held the offense was not divisible and thus the record of conviction could not narrow the conviction to match the aggravated felony definition.

DHS argued on a motion to reconsider, however, that a recent decision of the Tenth Circuit understood the "alternative elements" referred to in Descamps to mean any alternative phrases in a statutory definition of an offense, regardless of whether a jury must agree upon one of the alternatives to convict.  The Board that agreed the Tenth Circuit understood the Supreme Court's decision this way and found that it was compelled to apply that interpretation in the Tenth Circuit.  Under that interpretation, it does not matter whether jury unanimity was necessary on whether a defendant discharged a firearm with intent, knowledge, or recklessness.  The court may look to the record of conviction to determine which of those alternatives the defendant pleaded to in order to determine whether the conviction satisfies the aggravated felony definition. The plea agreement in Chairez's case specified that he "knowingly discharged a firearm in the direction of any person," so the record of conviction satisfied the crime of violence aggravated felony definition in the Tenth Circuit.

Notably, though, the Board declined to retreat from its previous decision in Chairez, except in those circuits like the Tenth that understood the "elements" in Descamps to include what would normally be considered "means" that need not be agreed upon by a jury.  That emerging circuit split has the Tenth, First, and Third Circuits  one side and the Fourth, Ninth, and Eleventh on the other (although the Ninth Circuit did not faithfully apply the jury unanimity understanding of elements in a case involving a controlled substance--see Coronado v. Holder).  Chairez II held that the Board would apply the law of whatever circuit the removal proceedings occurred in or, if there is no controlling law, then the opinion in Chairez I.

Thus, in the First, Third, and Tenth Circuits defense counsel must be extremely careful about what ends up in the record of conviction.  Indeed, defense counsel in every circuit should do that, at least until the Supreme Court resolves the circuit split.  What does it mean to be careful about what ends up in the record of conviction?  Take Chairez's case for instance.  Since Utah apparently does not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness, it would seem perfectly acceptable to list all three in the plea statement.  Instead of "knowingly discharged a firearm in the direction of any person," the plea could read "intentionally, knowingly, or recklessly discharged a firearm in the direction of any person."  With the reckless alternative included, DHS could not meet its burden of proving deportability. Even better if you can get the prosecutor to agree to a plea that specifies only reckless conduct.

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The Board of Immigration Appeals held here that a respondent's mental health at the time of committing a crime is not a factor in determining whether a conviction is for a particularly serious crime that bars withholding of removal.

In this case, the respondent was convicted of California Penal Code section 245(a)(1) (2004 version), assault with a deadly weapon, and received a two-year sentence to prison.  He has a history of chronic paranoid schizophrenia, which resulted in a finding that he was mentally incompetent during the removal proceedings.  The fact of the conviction, however, indicates he was not found not guilty by reason of insanity during the criminal proceedings.

The Board held that the respondent's mental health circumstances at the time of an offense may not be considered in determining whether the crime is a particularly serious crime that bars withholding of removal.   It reached this conclusion despite acknowledging the well-established rule that it "evaluate[s] the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts."  The Board's decision makes clear that the "circumstances and underlying facts" concern only those that indicate whether the respondent is a "danger to the community."  In other words, a crime by a mentally ill person can indicate dangerousness to the community just the same as a crime by a person who is not mentally ill.

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The Ninth Circuit, sitting en banc, overruled its erroneous precedent on the maximum potential sentence to imprisonment for California misdemeanors and its precedent that California Penal Code (CPC) section 245 (assault with a deadly weapon) is a categorical crime involving moral turpitude. It also found unpersuasive a Board decision from 1947 that held a CPC 245 conviction involved moral turpitude, since that decision did not apply the categorical analysis. The court remanded to the Board to determine in the first instance whether CPC 245 is a crime involving moral turpitude (CIMT). It further urged the Board to issue a publish decision promptly.

I, for one, am not optimistic the Board will quickly provide a published decision. A prompt answer certainly is important, since CPC 245 is a very common conviction and immigrants should be able to know whether it is a CIMT before deciding to give up their constitutional rights by entering a guilty plea to it. As the Ninth Circuit recognized, though, the question is a difficult one. On one hand, the element of a deadly weapon (a firearm in subsection (a)(2)) makes the offense more serious. However, assault does not require actual injury or even physical contact. Further, the court noted assault is a general intent crime that does not require an intent to injure or a conscious disregard of an unreasonable risk of injury (or, more precisely, it does not require an intent to create an apprehension of a completed battery or a conscious disregard of an unreasonable risk of creating an apprehension of a completed battery). So, I think the Board will struggle with this, which would be unfortunate.

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