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In Calvillo Garcia, the Board of Immigration Appeals held that a term of confinement in a Texas substance abuse treatment facility imposed as a condition of probation counts as a "sentence to imprisonment" under the Immigration and Nationality Act. Since it does, Calvillo Garcia's indeterminate sentence to no less than 6 months and no more than 1 year in such a facility satisfies the one year or more sentence required by the crime of violence aggravated felony definition.

Calvillo Garcia did not dispute that his deferred adjudication under Texas law counted as a conviction under the Act. Nor did he dispute that the offense he was placed on deferred adjudication for, aggravated assault in violation of Texas Penal Code section 22.02(a)(2) was a crime of violence as defined by both subsections (a) and (b) of 18 U.S.C. 16. His only argument was that time ordered to be spent in a substance abuse treatment facility was not a sentence to imprisonment.

Unfortunately for him, the Act defines "sentence to imprisonment" as a “period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 USC 1101(a)(48)(B). The Board found that the inclusion of both incarceration and confinement meant the definition was broader than just time in jail or prison. It agreed with the Third Circuit in this respect. Indeed, the Third Circuit held that confinement included even house arrest with electronic monitoring.  A person ordered to spend time in a substance abuse treatment facility as a condition of probation under this procedure is not free to leave that facility--he or she is confined.  That confinement is imprisonment according to Matter of Cavillo Garcia.

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In this decision issued in June of 2015, the Board of Immigration Appeals stated that the "ordinary case" test applies to its determination of whether a felony battery conviction under section 784.041(1) of the Florida Statutes meets the crime of violence definition at 18 U.S.C. 16(b).

The ordinary case analysis (and I use the term "analysis" with some hesitation) means that a court applies judicial imagination to hypothesize whether a particular offense would typically involve a substantial risk that the offender may use violence in the course of committing the offense. For example, the Supreme Court has found that residential burglary is the classic example of such an offense, even though the burglar may commit the offense when no one is home and the risk of violence being used is little to none.

Mario Francisco-Alonzo had argued that the Supreme Court's 2013 decision in Moncrieffe v. Holder meant that a crime is a crime of violence only if the least conduct that has a probability of being prosecuted involves a substantial risk of violence. He argued that an offender could commit battery in violation of section 784.041(1) with only a minimal amount of force but still cause serious harm to a so-called eggshell victim and that such a case would not involve a substantial risk of violence. The Board conceded that there might be a situation where a defendant could be prosecuted for use of minimal force against an eggshell victim, but the Board rejected his argument because it concluded that is not the ordinary case for felony battery under section 784.041(1).

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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 applied the Supreme Court's decisions in Descamps and Moncrieffe to find that the respondent's felony conviction under section 76-10-508.1 of the Utah Code for discharge of a firearm was not an aggravated felony crime of violence, but was a deportable firearms offense.

Section 76-10-508.1(1) has three subsections and it was not clear which the respondent was convicted of.  The first, subsection (a), penalizes one who "discharges a firearm in the direction of any person or persons,  knowing or having reason to believe that any person may be endangered by the discharge of the firearm."  This does not require any particular mental state by the person who discharges the firearm, which means under the Utah Code that it may be done with intent, knowledge, or recklessness.

The Supreme Court held in Leocal that the mental state of recklessness does not satisfy the federal definition of a crime of violence, so the Board held that a violation of section 76-10-508.1(1)(a) is not necessarily an aggravated felony crime of violence.   Further, the Board held it could not find the respondent was convicted of an aggravated felony under the modified categorical approach.  It determined it could not use the modified categorical approach because the mental states for subsection (a) (intentionally, knowingly, or recklessly) are not divisible because they are not elements of the offense that a jury must unanimously agree upon.  In other words, a jury returning a guilty verdict could do so where some members of the jury believe the defendant acted intentionally, while others believe he acted recklessly.  Since the offense does not necessarily constitute a crime of violence and it is not divisible, no conviction for section 76-10-508.1(1)(a) would be an aggravated felony crime of violence.

The Board nonetheless found that Chairez-Castrejon was convicted of a firearms offense because it rejected his argument on the antique firearm exception.  The federal definition of a firearm excludes certain antique firearms, while the respondent argued that Utah law did not.  The Board noted that there was no specific exception for antique firearms under Utah law, but also found that the respondent had not shown Utah actually prosecutes offenses involving antique firearms.  In Moncrieffe, the Supreme Court held that an alien who invokes this “antique firearm” argument in order to defeat an aggravated felony charge “would have to demonstrate
that the State actually prosecutes the relevant offense in cases involving antique firearms.”  The respondent apparently could not show that here (California, on the other hand, does prosecute cases involving antique firearms).  The Board therefore found Chairez-Castrejon deportable, although it remanded for consideration of his cancellation of removal claim because it found his conviction was not an aggravated felony.

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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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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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In this criminal appeal, the Ninth Circuit upheld a sentencing enhancement for prior convictions for crimes of violence despite a variance in the availability of an affirmative defense. The district court imposed the enhancement in this illegal reentry case because the defendant had previous California convictions for attempted murder and kidnapping. He had argued California attempt was not a categorical match to the generic definition of a crime of violence because California does not provide for the affirmative defense of voluntary abandonment, while the majority of jurisdictions and the Model Penal Code do.

The court held that Ninth Circuit precedent, e.g., United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010), compelled it to reject Albino-Loe's argument. It found that the Supreme Court's decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) did not undermine that precedent. The court distinguished Moncrieffe because it did not involve an affirmative defense, but rather a sentencing exception that defined whether the offense was a felony or misdemeanor.

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The Supreme Court held a conviction for simple battery against a domestic victim triggers the prohibition against firearms possession at 8 USC 922(g)(9), a federal crime. Immigration advocates had feared that a holding along these lines would be used to justify expanding the domestic violence ground of deportability to also include simple battery against a domestic victim--making deportable, for example, an immigrant convicted of the misdemeanor offense of pushing his wife.

Fortunately, however, the Court explicitly stated at footnote 4 that nothing in its decision should cast doubt on precedent that holds simple battery against a domestic victim does not implicate the deportability ground. The court recognized that the deportability ground incorporates the generally-applicable "crime of violence" definition at 18 USC 16, which the Court has repeatedly held applies only to the active use of violent force capable of causing injury.

The criminal statute in Castleman did not include that reference to 18 USC 16, so the Court applied a much more expansive definition of domestic violence, over Justice Scalia's objections. It cited arguments and statistics by advocacy groups and the Department of Justice to explain why a simple battery that would not be considered "violent" in the ordinary sense is "violent" when it occurs in the domestic context, since it often occurs as part of a pattern of intimidation and control.

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The Board held that an adjustment of status by a respondent who entered the U.S. without inspection was an "admission" and the respondent therefore was deportable for conviction of an aggravated felony "after admission." It disagreed with and distinguished the precedent on 212(h) eligibility, where circuit courts have held an aggravated felony does not disqualify a permanent resident unless he or she was admitted to the U.S. as a permanent resident (not where he or she adjusted to permanent resident status). The Board found it would be absurd to interpret the statute to entirely exempt immigrants who adjusted status from the grounds of deportability, which only apply to persons in and admitted to the U.S.

The Board further found that a sentence enhancement specified in the Manual for Courts-Martial that must be pleaded and proved beyond a reasonable doubt is an "element" that may be examined under the categorical analysis for immigration purposes.

In this case, the Board held a sodomy sentence enhancement for sodomy committed "by force and without the consent of the other person" categorically satisfies the crime of violence aggravated felony definition (if the sentence is to one year or more). It found the conviction satisfied both subsection (a) and subsection (b) of 18 U.S.C. 16. It found it satisfied subsection (a) because it held the conviction had as an element the use, attempted use, or threatened use of physical force against the person or property of another. It also found the offense satisfied subsection (b) because sodomy by force, which requires physical force and lack of the victim’s consent for a conviction, by its nature involves a substantial risk that the perpetrator will resort to intentional physical force in the course of committing the crime.

Interestingly, in a portion of the decision not digested by the Board at the beginning of the case, the Board rejected without much analysis the respondent's argument that he did not receive a sentence to one year or more for any single one of his three sodomy convictions. Apparently, he received a sentence to 18 months on the three counts and it was not clear whether this was a single concurrent sentence (i.e., 18 months on each conviction with the period of imprisonment to run at the same time) or three consecutive sentences (say, three sentences to 6 months each). The Board characterized the sentence as a "general sentence" and cited a 66 year-old Board opinion to find it satisfied the crime of violence aggravated felony definition's requirement of a sentence to one year or more. Due to the paucity of the Board's analysis, though, it is hard to know whether the respondent's argument had any merit. This is unfortunate in a published decision.

Finally, the Board rejected respondent's claim to eligibility for a "stand alone" 212(h) waiver. It held 212(h) is not available unless the applicant is an arriving alien seeking to waive a charge of inadmissibility or an applicant to adjust (or readjust) status to permanent residence. See Matter of Rivas, 26 I&N Dec. 130,
132, 134 (BIA 2013).

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In this Sentencing Guidelines case, the Ninth Circuit reviewed case law from the Delaware Supreme Court to determine whether the court had narrowed that state's unusually broad statutory definition of criminal attempt. It did so despite the fact that the U.S. Supreme Court in Descamps reserved the question of whether review of case law to determine the reach of a statute is permitted under the categorical analysis.

The panel's review of the case law of the Delaware Supreme Court revealed that the definition of attempt in that state really is as broad as the statute implies. Delaware law criminalizes attempt where the defendant has committed an act that leaves no reasonable doubt as to the defendant’s intention to commit the crime he or she is charged with attempting to commit. In other words, a person could be convicted of attempt where he or she has taken a step merely in preparation toward committing a crime. This is in contrast to most states and the generic federal definition, which require both intent and a substantial step toward completion. And a "substantial step" occurs under the federal generic definition when a defendant’s "actions 'unequivocally demonstrat[e] that the
crime will take place unless interrupted by independent circumstances.'"

Since the case law merely confirmed the statutory text, the panel did not need to use the case law to decide that the defendant's attempt conviction here was not a categorical match to the federal definition. Nonetheless, Judge Wallace's concurrence opposed even this on judicial restraint grounds. He wrote that the underlying crime attempted in this case (statutory rape) was not a match to the Sentencing Guidelines definition for a forcible sex offense. As it is not a match, an attempt to commit that crime is not a match to the federal definition either. He would have denied the case on that ground.

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