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Pointing a laser pointer at a cop is a crime, but it is not a base, vile, or depraved crime according to the Ninth Circuit's decision in Coquico v. Lynch.

ICE put John Coquico in removal proceedings, alleging that he was deportable for conviction of two crimes involving moral turpitude after admission: a 2007 conviction for robbery and a 2006 misdemeanor conviction for "unlawful laser activity" in violation of California Penal Code (PC) 417.26. He argued the PC 417.26 conviction did not involve moral turpitude.

PC 417.26 provides,

(a) Any person who aims or points a laser scope as defined in subdivision (b) of Section 417.25, or a laser pointer, as defined in subdivision (c) of that section, at a peace officer with the specific intent to cause the officer apprehension or fear of bodily harm and who knows or reasonably should know that the person at whom he or she is aiming or pointing is a peace officer, is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not exceeding six months.

The immigration judge found this crime to involve moral turpitude because she found it involved "possession of weapons which are insidious instruments normally used for criminal purposes.” The Board of Immigration Appeals agreed that the crime involved moral turpitude for the slightly different reason of "the crime is committed against a peace officer and the nature of the crime involves using a device which gives the appearance or facade of the use of a deadly weapon."

Really? Apparently the immigration judge and Board are unfamiliar with what exactly a laser pointer is. Helpfully, the California statute defines it as: "any hand held laser beam device or demonstration laser product." You know, like what they use to point on the projection screen at a dreary continuing legal education seminar. Or like the one that naughty kid was using to distract the speakers at the last PTA meeting I went to. Annoying yes, an insidious weapon normally used for criminal purposes no.

Fortunately, the Ninth Circuit also went with annoying rather than deadly. It noted that the statute does not have any requirement that the laser pointer appear deadly to a reasonable person. Nor does the statute require that the peace officer on the receiving end be in reasonable fear of bodily harm (much less experience any harm). In other words, all that PC 417.26 requires is that some knucklehead intend to cause the officer fear of harm, not that the officer have a reasonable basis to fear harm. The Ninth Circuit found that to be the critical point.

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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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Attorney General Holder vacated Attorney General Mukasey's 2008 decision to authorize an unprecedented factual inquiry to determine whether a conviction involved moral turpitude.  In doing so, he recognized that five circuit courts of appeal had rejected the reasoning of that decision (while two had deferred to it). He also recognized the Supreme Court has repeatedly emphasized that convictions must be judged by their legal elements, not the alleged facts that led to them.

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The Board held that a conviction for recklessly engaging in deadly conduct in violation of section 22.05(a) of the Texas Penal Code is categorically a crime involving moral turpitude.  Section 22.05(a) provides, "A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury."  Recklessness for this purpose means the offender is "aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.”  The Board held that this conscious disregard to a substantial and unjustifiable risk of serious bodily injury to another always involves a base act that constitutes a crime involving moral turpitude.  It found the offense indistinguishable from the reckless endangerment offense in Matter of Leal, 26 I&N Dec. 20 (BIA 2012), which held that “recklessly endangering another person with a substantial risk of imminent death” is always a crime involving moral turpitude.

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In an unnecessary and disingenuous decision, the Ninth Circuit held in Torres-Valdivias v. Holder that the Board of Immigration Appeals correctly applied the heightened discretionary standard of Matter of Jean to deny adjustment of status to an immigrant convicted of misdemeanor sexual battery, even though the immigrant was not inadmissible for the conviction.

The Jean heightened discretionary standard requires a showing of extraordinary circumstances before granting a waiver of inadmissibility to an alien who has committed a violent or dangerous offense. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Jean was a refugee who had been convicted of manslaughter for shaking a baby to death.  When the former INS put her in removal proceedings, she applied for adjustment of status as a refugee.  She did not dispute that she was inadmissible to adjust status, but requested a discretionary 209(c) waiver to forgive her inadmissibility.  The immigration judge denied the waiver in the exercise of discretion.  The Board reversed and granted the waiver and adjusted her to permanent resident status.  The Attorney General at the time, John Ashcroft, disagreed with the Board and overruled it in a published opinion.  He established a new discretionary standard, which headnote 4 of the decision summarizes:

Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).  Thus, if you have committed a violent or dangerous crime, the agency will not grant you a discretionary waiver to adjust from refugee status to permanent resident status without extraordinary circumstances (and even then may not).  A later decision, Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), applied the same standard to asylees who apply to adjust from asylum status to permanent resident status.  No published Board decision, though, has ever applied the Jean standard to other types of applicants for adjustment of status, such as family-based or employment-based applicants.  Those applicants adjust pursuant to section 245 of the Immigration and Nationality Act, rather than section 209.

In an unpublished decision, however, the Board applied Jean to deny Torres-Valdivias's family-based application to adjust status.  It found that his misdemeanor conviction for sexual battery was a violent and dangerous crime that triggered the heightened discretionary standard, even though it did not make him inadmissible.  Torres-Valdivias was not inadmissible because his crime qualified for the petty offense exception--it was a misdemeanor with a sentence to imprisonment of not more than six months.   The Ninth Circuit affirmed the Board's decision.

The Board's unprecedented borrowing of a standard is dubious enough in an unpublished decision, but applying the Jean standard to an immigrant who was not inadmissible for his crime was even more questionable.  Remember the language of Jean?  It explicitly applied only to a "discretionary waiver" for inadmissibility (and then only for a refugee).  Torres-Valdivias did not require a waiver, so Jean should not apply.

The heightened standard that does apply to family-based immigrants like Torres-Valdivias is nearly identical to Jean, but by its own terms only applies where the immigrant is inadmissible for a crime and thus requires a waiver of inadmissibility under 212(h).  See 8 C.F.R. 212.7(d).  The regulation that contains this standard provides,

The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.

8 C.F.R. 212.7(d).  Thus, only immigrants who require a 212(h) waiver for criminal inadmissibility are subject to the heightened standard under 212.7(d).  And note that part 212.7(d) was issued under the same Attorney General--John Ashcroft--that decided Matter of Jean, and it was issued after the decision in Jean.  See 67 Fed. Reg. 45402, 45404 (Jul. 9, 2002) (proposed rule).  Indeed, the agency stated in the Federal Register that 212.7(d) was intended to codify Jean.  Id.

The Ninth Circuit blithely ignored all of this and affirmed the Board's unpublished decision.  In doing so, it effectively rendered 212.7(d) moot in the Ninth Circuit.  Under Torres-Valdivias, an immigrant may be denied adjustment of status under the heightened standard even where he is not inadmissible, while 212.7(d) only applies if the immigrant is inadmissible for a crime.  If Attorney General Ashcroft intended the interpretation of Jean adopted by the Ninth Circuit, why did he later promulgate a more narrow regulation at 212.7(d)?  The answer is that he did not intend the Ninth Circuit's interpretation.

At the beginning of this article, I made the inflammatory comment that the panel decision in Torres-Valdivias is not only wrong, but disingenuous, so I'll tell you why.  After the initial decision in the case, published on September 5, 2014, the American Immigration Council and the Immigrant Legal Resource Center filed amicus briefs in support of rehearing, and they were both represented by very able attorneys.  I am certain those attorneys raised the arguments summarized above, and perhaps even better ones.  Yet the amended opinion issued nine months later still asserted that Jean and K-A- compelled the decision, when in fact they don't and the implication of 212.7(d) is that the decision is entirely wrong.  I expect the panel ignored the arguments because of the bad facts in this case (the victim of Torres-Valdivias's sexual battery was his step-sister, who was four years younger than him).

I would say the opinion is results-oriented, except that this bad law was unnecessary.  There already was and still is a discretionary standard of long pedigree that applies to adjustment applications by all immigrants, admissible and inadmissible: the Board's published decision in Matter of Arai, 13 I&N Dec. 494 (BIA 1970).  Arai held, "Where adverse factors are present in a given application for adjustment of status under section 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities."  In other words, the favorable discretionary factors must outweigh the negative factors.  This standard is more flexible and carries less of a presumption toward denial, but it is more than adequate to support the denial of adjustment where appropriate.  In other words, the Board could have denied Torres-Valdivias adjustment under either standard, so the use of the wrong one may have caused no harm here.

Although the panel's decision may not have prejudiced Torres-Valdivias, the problem is that it turned the Board's minor error into a rule of law that will be applied to other cases throughout the Ninth Circuit.  And it is hard to see why it did so.  The prudent course would have been to remand the case to the Board for a reconciliation of Jean, Arai, and 212.7(d).  That is the Board's job, not the Ninth Circuit's.

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The Board of Immigration Appeals held that malicious vandalism in violation of California Penal Code section 594(a) was categorically a crime involving moral turpitude where it is accompanied by a finding that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, a sentencing enhancement under PC 186.22(d).

First, the Board found that the immigration judge had erred by analyzing the vandalism and the enhancement separately.  Rather, the Board held that they must be considered together as a single offense.  The enhancement requires a specific intent to promote criminal activity by a street gang, so that means an act of malicious vandalism with the enhancement must be done with the specific intent to promote that activity.  What activity?  The Board cited "turf wars and gang violence."  The Board found that gang vandalism promoted that activity.

I would argue, though, that vandalism with a gang enhancement is not a CIMT under the categorical approach if there is a realistic probability that a defendant might be convicted of it for conduct that does not promote turf wars or gang violence.  The Board seems to assume that the only vandalism that comes within the statute is gang graffiti, which obviously stakes out territory and could lead to confrontations.

I would be interested to know if any of my readers could think of a scenario where a person could be convicted of vandalism with a gang enhancement (for the benefit of a gang and to promote criminal activity by the gang) that is not necessarily turpitudinous.  If so, is there a realistic probability of it being prosecuted?  Submit a comment below if you can.

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The Ninth Circuit held that felony false imprisonment in violation of California Penal Code section 236/237 is not categorically a crime involving moral turpitude. This conclusion was virtually a foregone conclusion given the Ninth Circuit previously had found the more serious offense of simple kidnapping in violation of California Penal Code section 207(a) did not categorically involve moral turpitude.

The court noted the California appellate courts had upheld felony false imprisonment convictions under a "menace" theory in circumstances that did not fit the federal definition of moral turpitude. See People v. Islas, 147 Cal. Rptr. 3d 872, 875–82 (Ct. App. 2012) (two gang members convicted of false imprisonment by menace after hiding from police for about 15 minutes in an apartment rented by a mother and her children; conviction upheld even though the defendants did not brandish a weapon, did not act in a hostile manner, did not touch the woman or her family, did not issue any verbal threats, and, in fact, expressly told her that “they were not going to harm her or her children”).

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