Top of the Ninth: Aug 24, 2018

The BIA and the Attorney General did not publish any decisions this week, but the Ninth Circuit made up for it by publishing five decisions related to immigration law. Matt Adams and the Northwest Immigrant Rights Project have been on fire this summer (as has much of the West); they have been the attorneys of record for many of the excellent published Ninth Circuit decisions that have come down this summer. This week has been no different. This week the Ninth Circuit reiterated that California controlled substance statutes are divisible as to the identity of the controlled substance and that where a noncitizen commits a crime before the enactment of AEDPA, but enters the plea after the enactment of AEDPA, he is ineligible for 212(c) relief. In good news a lawful permanent resident who is applies for cancellation of removal is not subject to the grounds of inadmissibility – so don’t let your LPR clients who might be inadmissible for crimes travel. A conviction for indecent exposure is not a crime involving moral turpitude if where the crime lacks the element of lewd intent – and wow, did the Ninth Circuit scold the BIA in that decision! California robbery (Penal Code § 211) is categorically not a crime of violence. And, finally, the Ninth once again said that California assault with a deadly weapon is a crime of violence. It’s a lot! Let’s get into the cases.

Ninth Circuit

Possession for Sale of Cocaine Salt is an Aggravated Felony; the Underlying Statute is Divisible as to Substance; and, Even Though the Noncitizen Committed the Crime pre-AEDPA He is Not Eligible for 212(c) Relief

The Ninth Circuit held that possession for sale is a divisible offense as to the identity of the controlled substance; that where the underlying substance is cocaine salt, it is an aggravated felony; that the courts will not recognize a record clearance for possession for sale under Cal. Penal Code § 1203.4 for immigration purposes; and even though the crime was committed pre-AEDPA, the noncitizen is not eligible for 212(c) relief. And, there is a split on the panel as to 212(c) relief, so we may not have seen the last of this case. That’s a lot to digest. Plus, under the Ninth’s decision in Lorenzo v. Sessions, No. 15-70814 (9th Cir. August 29, 2018) there might be an argument that a California conviction for possession of cocaine salt is not a removable offense under the federal Controlled Substances Act; but that depends on the definitions of cocaine salt on the state and federal level. (Please read Part I of my blog from August 31, 2018, for an analysis of the amazing Lorenzo decision).

Let’s start with the facts. In 1984, Salvador Robles Lopez was admitted to the United States as a lawful permanent resident. In September 1995, he committed and on September 23, 1996, (and this date is important) he was convicted of possession for sale of cocaine salt in violation of Cal. Health & Safety Code § 11351. I am not sure if he was arrested in September 1995 or admitted to committing the crime in September 1995 – it’s not clear from the case. Anyhow, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA). Under AEDPA, a lawful permanent resident who had been convicted of an aggravated felony became ineligible for 212(c) relief. For those of you who weren’t practicing immigration law 22 years ago, and for those of you who have never seen a 212(c) case – 212(c) was an amazing form of relief. A lawful permanent resident who was convicted of a crime could get relief from deportation as long as s/he had not served over 5 years’ imprisonment. The noncitizen just had to show that s/he had been a lawful permanent resident for seven years (time in deportation proceedings counted) and that s/he merited a positive exercise of discretion. I remember being devastated when a client I was representing (who had been sentenced to over 4 years’ imprisonment for trafficking cocaine, and, who had no family in the United States) lost his 212(c) case. (At the time I was working for the wonderful Angela Bean, and she pointed out that the client had committed a very serious crime and had very few equities. It was wonderful practicing immigration law in the 1990’s in San Francisco – especially with Angela). But back to Mr. Lopez (I know it should be Robles, but the Ninth is calling him Mr. Lopez).

Mr. Lopez was convicted of violating the Cal. Health & Safety Code § 11351. The statute holds:

Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug…

On January 18, 2008, the state of California expunged the conviction pursuant to Cal. Penal Code § 1203.4. On September 21, 2009, DHS initiated removal proceedings and charged Mr. Lopez with having been convicted of an aggravated felony for drug trafficking and with having been convicted of a controlled substance offense. The Immigration Judge held that his conviction for possession for sale was an aggravated felony and that he was ineligible for a 212(c) waiver. The Immigration Judge also denied relief under the Convention Against Torture. The BIA affirmed this decision.

The Ninth found that possession for sale of a controlled substance is a felony under the federal Controlled Substances Act. But, they held Cal. Health & Safety Code § 11351 is divisible as to the identity of the controlled substance. Accordingly, the Ninth used the modified categorical approach to determine if the substance is a controlled substance. The Ninth looked to the record of conviction and noted that in the indictment and the minute order Mr. Lopez pleaded no contest to possession for sale of cocaine salt. Accordingly, he was removable.

The Ninth Circuit noted that an expungement under Cal. Penal Code § 1203.4 eliminates the immigration consequences of the offense if it meets the requirements of the Federal First Offender Act (FFOA). In other words, it only applies to first time drug offenders convicted of simple possession of a controlled substance prior to July 14, 2011. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) overruled by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) [July 14, 2011 was the date that Nunez-Reyes was published and eliminated 1203.4 relief for simple possession for convictions entered on or after that date]. I see a lot of cases where clients get expungements under Cal. Penal Code § 1203.4 for controlled substance offense and are surprised when I tell them that we need to go back to state court and get the conviction vacated.

The Ninth then held that Mr. Lopez was not eligible for a waiver of deportation under 212(c). Remember prior to AEDPA a noncitizen could get 212(c) relief to excuse almost any conviction. In this case Mr. Lopez committed the crime prior to the enactment of AEDPA but was convicted of the crime after the enactment. The Ninth held the “determination of whether a statute impermissibly operates retroactively turns on “whether the new provision attaches new legal consequences to events completed before its enactment.” Lopez v. Session, No. 15-72747 slip op. at *11 (9th Cir. August 22, 2018). The Ninth then explains that the new statute provided that a permanent resident who is deportable by reason of having committed an aggravated felony is ineligible for 212(c) relief. But, that a permanent resident is not deportable until s/he is convicted.

Mr. Lopez applied for relief under the Convention Against Torture stating that he would be tortured in Mexico. The Ninth noted that his fears were not sufficiently particularized for CAT relief. It is not enough to state that “there are “a lot of robberies” in Mexico, that he has heard from “a lot of people” that business owners in Mexico are forced to pay protection money to gangs, and that as a returnee from the United States, people will perceive him as “ha[ving] money.” Such evidence does not provide a sufficient basis to conclude that any harm to Lopez would rise to the level of torture.” Lopez, slip op. at *15.

What makes this case interesting, is the dissent in the panel. Judge Friedland dissented arguing that AEDPA’s amendment to § 212(c) cannot be applied retroactively to an offense committed before the enactment of AEDPA because it would impose new consequences on the actions Mr. Lopez took when he committed the offenses. The dissent cites to the Supreme Court’s decision in Vartelas v. Holder, 566 U.S. 257 (2012) where the Supreme Court recognized that new consequences for multiple past events including the commission of the offense made the application impermissibly retroactive. We may not have seen the last of this issue.

Lopez v. Session, No. 15-72747 (9th Cir. August 22, 2018)

The Grounds of Inadmissibility Do Not Apply to Deportable Noncitizens Applying for Lawful Permanent Resident Cancellation of Removal

Remember how I said that Matt Adams and the NWIRP have been on fire this summer? This case is another example. The Ninth Circuit held that a lawful permanent resident who is applying for cancellation of removal under INA § 240A(a) cannot be statutorily barred from seeking 240A(a) relief because he admitted using cocaine in 2005 (an offense that would render him inadmissible). The Ninth Circuit held that only the grounds of deportability (not the grounds of inadmissibility) apply to lawful permanent residents who are not being charged as arriving aliens. If you have a permanent resident client who might be subject to the grounds of inadmissibility and could be charged as an arriving alien upon his or her return, you might want to counsel against travelling. But, this case is very important!

Vu Minh Nguyen is a native and citizen of Vietnam. In 2000 he was admitted to the United States as a lawful permanent resident. Fifteen years later, he was placed in removable proceedings and was charged with three misdemeanor convictions. Mr. Nguyen applied for cancellation of removal for lawful permanent residents. During the merits hearing, Mr. Nguyen admitted on cross examination that in 2005 he used cocaine. The government argued that his commission of a drug offense rendered him inadmissible and stopped his accrual of continuous permanent residence at five years. The Immigration Judge agreed, and pretermitted proceedings and the BIA affirmed. Mr. Nguyen appealed.

Remember, that in order to qualify for relief under INA § 240A(a) the permanent resident must establish that s/he has been a lawful permanent resident for five years after being admitted in any status for seven years, and s/he cannot have been convicted of an aggravated felony. But, time stops (for both the five and seven years) when the permanent resident commits a crime. The big issue in this case, is whether time stopped when Mr. Nguyen used cocaine in 2005 (a ground of inadmissibility) where he was not subject to the grounds of inadmissibility? The Ninth Circuit said, no. It did not stop time.

All of the parties in the case agreed that the stop-time rule is triggered by two events. I’m going to quote the language from the opinion here because it is very interesting:

Both parties agree that the stop-time rule is triggered by two events: 1) the commi[ssion] [of] an offense referred to in section 1182(a)(2) [212(a)(2)] of this title,” and 2) the offense’s effect of “render[ing] the applicant “inadmissible to the United States under section 1182(a)(2) [212(a)(2)] of this title or removable from the United States under section 1227(a)(2) [237(a)(2)] or 1227(a)(4) [237(a)(4)] of this title.

Nguyen v. Sessions, No. 17-70251, slip op. at *6 (August 23, 2018). Does that mean that a deportable offense does not stop time????

Back to the case, because Mr. Nguyen admitted that he possessed cocaine – a controlled substance under INA § 212(a)(2) he triggered the first prong of INA § 240A(d). The question for the Ninth was whether Mr. Nguyen was subject to the grounds of inadmissibility and thus, had time stopped in 2005? The Ninth went back to the definition of inadmissibility and found “[a]n inadmissible alien is one who was not admitted legally to the United States and is removable under § 1182 [212], whereas a deportable alien is in the United States lawfully and is removable under § 1227 [237].” Vazquez Hernandez v. Holder, 590 F.3d 1053, 1055 (9th Cir. 2010).” Nguyen, slip op. at *7. The Ninth noted that lawful permanent residents who have been admitted under most circumstances are subject to the grounds of removability not inadmissibility. However, the Ninth noted that lawful permanent residents who are deemed to be arriving aliens are subject to the grounds of inadmissibility. However, Mr. Nguyen was not an arriving alien and thus, was not subject to the grounds of inadmissibility.

The Ninth Circuit noted that its decision conflicts with a decision out of the Fifth Circuit; so, this issue might be going to the Supreme Court. However, the Ninth Circuit concluded, “Under the plain language of the stop-time rule and the INA, a lawful permanent resident cannot be “rendered inadmissible” unless he is seeking admission.” Nguyen, slip op. at *14. Thank you NWIRP!

Nguyen v. Sessions No.17-70251 (9th Cir. August 23, 2018).

A Conviction for Indecent Exposure Without the Element of Lewd Intent Is Categorically Not a Crime Involving Moral Turpitude

In a blistering decision that cites Marbury v. Madison (yes, Marbury v. Madison from the first year of law school) the Ninth Circuit held that a Washington State conviction for indecent exposure is categorically not a crime involving moral turpitude. It’s worth discussing the Marbury v. Madison, cite and sighting, because I don’t see it very often. In this case the Government filed an unopposed motion to remand this case for further proceedings. But, the Ninth Circuit held that there was no indication that the cases relied upon by the government in its motion to remand to the BIA would change the BIA’s decision. “We therefore adhere to our obligation to “say what the law is,” 5 U.S. (1 Cranch) 137, 177 (1803) and deny the government’s motion for remand.” Barrera-Lima v. Sessions, No. 13-73022 slip op.at *506 n. 1 (9th Cir. August 24, 2018). In other words, the Ninth Circuit was convinced that the Washington conviction for indecent exposure is categorically not a CIMT and was not even going to allow the BIA to decide the issue. And, the case goes on from there.

Juan Barrera-Lima is a citizen of Guatemala who entered the United States without inspection in 1999, when he was a teenager. On November 17, 2009 he was charged with one misdemeanor count of indecent exposure pursuant to Washington Rev. Code § 9A.88.010(1). A little over two weeks later he pleaded guilty to one count of indecent exposure to a victim under the age of 14, Washington Rev. Code § 9A.88.010(2)(b). The Washington court sentenced him to 364 days in jail but suspended 301 days and ordered him to pay a $5,000 fine. The court also ordered him to have no contact with two underage individuals and to obtain a sexual deviancy evaluation and comply with the recommended treatment. On April 22, 2010, Mr. Barrera-Lima entered a second guilty plea to one misdemeanor count of indecent exposure under Washington Rev. Code § 9A.88.010(1). The Ninth Circuit noted that both pleas pertain to incidents that took place on October 20, 2009. It is unclear whether Mr. Barrera-Lima exposed himself twice on the same day or was simply charged twice for a single even involving multiple victims. It’s also unclear why there was a five-month delay between the two guilty pleas. This time he was sentenced to 365 days in jail, but the entire sentence was suspended and fined him $5,000 but suspended $4,800 of the fine. As with the first plea, he had to remain in compliance with sexual deviancy treatment. Pursuant to both pleas, Mr. Barrera-Lima successfully completed a year-long sexual deviancy program.

On December 2, 2009, Mr. Barrera-Lima was placed in removal proceedings and charged with being in the United States without having been admitted or paroled. Mr. Barrera-Lima applied for cancellation of removal for non-lawful permanent residents and for voluntary departure. The Immigration Judge found that Mr. Barrera-Lima was statutorily ineligible for cancellation of removal or for voluntary departure because his 2009 conviction for indecent exposure to a minor under the age of fourteen was a crime involving moral turpitude. The BIA affirmed this decision.

In a blistering decision (did I mention that the Ninth Circuit seems angry?) they reversed, finding that the Washington conviction for indecent exposure was categorically not a crime involving moral turpitude. First the Ninth looked at the elements of the indecent exposure statute. 1) the defendant made an “open and obscene” exposure of his or her genitalia or that of another person’s; 2) the defendant did so intentionally; and, 3) the defendant knew that such conduct would likely cause reasonable affront or alarm. Barrera-Lima v. Sessions, No. 13-73022 slip op. at *12 (9th Cir. August 24, 2018). The Ninth noted that the BIA added a fourth element to the offense that is not one of the elements under Washington law: “that of lascivious intent which it further defined to mean “tending to excite lust; lewd; indecent, obscene.” In so doing it committed the first of several legal errors.” Barrera-Lima, slip op. at *12 (emphasis added). The Ninth Circuit noted that Washington’s indecent exposure statute is notable for its unusual breadth. The exposure need not take place in a public space or actually cause affront or alarm. It does not require the state to prove that the exposure was motivated by sexual arousal, gratification, or affront. The state only needs to prove that the defendant exposed his or her genitalia in the presence of another person knowing that the exposure would cause reasonable affront or alarm. Accordingly, the Ninth found that it was not a crime involving moral turpitude.

The Ninth found that the BIA’s decision was not entitled to any deference under either Chevron or Skidmore (a lesser form of deference when the BIA’s decision is unpublished) because the BIA failed to follow the law. The BIA previously held that California’s indecent exposure statute was categorically a crime involving moral turpitude. In so holding, the BIA rejected the Ninth Circuit’s prior holding in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) (a memorable Reinhardt decision that referred to exotic dancers holding that a California conviction for indecent exposure was categorically not a crime involving moral turpitude). See, Matter of Cortes Medina, 26 I.&N. Dec. 79 (BIA 2013). In Cortes Medina the BIA essentially reversed the Ninth finding that California’s indecent exposure statute requires a finding of lewdness, specifically lewd intent and was categorically a crime involving moral turpitude. Cortes Medina, 26 I.&N. Dec. at 84. But, the Ninth noted that Cortes Medina embraced a definition of lewd intent that was restricted to sexually motivated exposure. The Ninth noted that the Washington statute was different.

Yet the BIA inexplicably concluded here that “lewd intent” encompasses any general intent to “harass, humiliate, outrage, or frighten.” Even more baffling, the BIA concluded – despite clear language from Cortes Medina to the contrary – that lewd intent is not commensurate with sexual motivation. The result is a decision untethered to any published precedent.”

Barrera-Lima, slip op. at *16-17. Boom!

After having concluded that the BIA’s decision was not entitled to deference the Ninth Circuit then analyzed whether all of the conduct captured by Washington’s indecent exposure statute falls within the generic definition of morally turpitudinous conduct. The Ninth noted that for a conviction for indecent exposure to be a crime involving moral turpitude the minimum conduct must include 1) willful exposure; and 2) lewd intent. In turn, lewd intent means sexually motivated conduct.

The Ninth Circuit then stated, “We have long lamented the ambiguity inherent in the phrase “moral turpitude, “an amorphous term that has consistently escaped definition.” Barrera-Lima, slip op. at *24. “Nonetheless, we have defined morally turpitudinous conduct to mean either fraudulent conduct or “vile, base, or depraved” behavior that “violates accepted moral standards.”.*.*.* We have repeatedly cautioned that under our definition, crimes other than fraud “must be more than serious; [they] must offend the most fundamental moral values of society, or as some would say, shock the public conscience.” Id. The Ninth noted that in applying that definition it often concluded that crimes directed towards a protected class of victims, such as children are categorically crimes involving moral turpitude. Barrera-Lima, slip op. at *25. But, in this case the Washington statute was unusually broad and found that it appears that a defendant can be convicted of indecent exposure to a person under the age of fourteen even if no one witnessed the exposure as long as the exposure took place in the presence of a child.

The Ninth held that in the absence of a conviction of a crime involving moral turpitude, Mr. Barrera-Lima was statutorily eligible to apply for cancellation of removal and for voluntary departure. The fight between the Ninth Circuit and the BIA over the definition of a crime involving moral turpitude continues.

Barrera-Lima v. Sessions, No. 13-73022 (9th Cir. August 24, 2018).

A California Conviction for Robbery Under Cal. Penal Code § 211 is Not a Crime of Violence

A California conviction for robbery under the new sentencing guidelines is not a crime of violence. While this case is a criminal case, we can use this analysis for immigration cases to argue that California robbery is not an aggravated felony crime of violence under 18 U.S.C. § 16(a) because it lacks the element of violent force. In 2015, Deljuan Bankston pleaded guilty to being a felon in possession of a firearm. He had two prior convictions for robbery under California Penal Code § 211. The California robbery statute defines robbery as “the felonious taking of personal property in possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Cal. Penal Code § 211. Fear can either be 1) “fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family or; 2) the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.” The statute encompasses the following conduct such as “Give me $10 or I’ll key your car” or “open the cash register or I’ll tag your windows.” United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008); cited in United States v. Bankston, No. 16-10124 slip op. at *6-*7 (9th Cir. August 23, 2018). Be careful about relying on this case in an immigration context because it may only apply to the revised sentencing guidelines for a crime of violence. But, I think there is a strong argument that the minimum conduct required for a conviction under California Penal Code § 211 is not a crime of violence under 18 U.S.C. § 16(a) because the force required is not violent force.

United States v. Bankston, No. 16-10124 (9th Cir. August 23, 2018).

Assault with a Deadly Weapon or Assault by Means of Force Likely to Produce Great Bodily Injury Is Categorically a Crime of Violence Under 18 U.S.C. § 16(a)

It would not be a week in August 2018, unless the Ninth Circuit addressed whether a California conviction for assault with a deadly weapon is a crime of violence. The Ninth Circuit held that a conviction for Cal. Penal Code § 245(a)(1) as it was written prior to being amended in 2011 is categorically a crime of violence. In 2011 the California legislature divided the crime of assault with a deadly weapon into four separate offenses the two most important being: 1) assault with a deadly weapon; and 2) assault with force likely to produce great bodily injury. The pre-2011 statute included both elements; and the Ninth Circuit held that this offense is categorically a crime of violence.

Gonzalo Vasquez-Gonzalez is a citizen of Mexico. Mr. Vasquez was brought to the United States by his mother when he was five years old. He became a lawful permanent resident when he was fourteen. He graduated from high school in 1993. Mr. Vasquez had quite the criminal record in the early nineties. In 1995 he was convicted of assault with a deadly weapon, Cal. Penal Code § 245(a)(1) after he stabbed a man on the street after stealing two bottles of beer from him. Mr. Vasquez was sentenced to four years in prison. While in prison, he was involved in eight gang-related fights and was found guilty of being in possession of a stabling instrument. According to Mr. Vasquez, the guards at Corcoran State Prison forced him to fight the other inmates. In 1998, while he was still in prison, he was placed in removal proceedings for having been convicted of an aggravated felony. In 1999, he was deported from the United States. He reentered the United States without inspection thirteen days later and has been quietly living here for the past nineteen years. He now works full time as a furniture delivery man and furniture assembler. He is raising his two daughters. On May 13, 2014, he was charged with one count of violating 8 U.S.C. § 1326 for illegal reentry. He had not been charged with any crime since his arrest in 1994 – twenty-four years ago.

The Ninth Circuit noted that it had previously concluded that a conviction for Cal. Penal Code § 245(a)(1) is categorically a crime of violence for federal sentencing purposes. Mr. Vasquez argued that the mens rea requirements for the statutes are not a categorical match. He argued that a crime of violence under 18 U.S.C. § 16(a) requires an intentional use of force – reckless, or grossly negligent conduct is not enough to meet the mens rea standard. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006). Mr. Vasquez argued that Section 245(a)(1) can be satisfied by negligent, and therefore, unintentional, conduct. The Ninth Circuit disagreed. “The Supreme Court of California has expressly stated that the mens rea for assault in California requires more than negligent conduct. People v. Williams, 26 Cal. 4^th 779, 788 (2001) (“mere recklessness or criminal negligence is still not enough”). Instead, assault in California requires an intent to commit a battery.” United States v. Vasquez-Gonzalez, No. 15-10285 slip op. at *10-11 (9th Cir. August 22, 2018). The Ninth Circuit noted “The essential question is whether assault in California can be committed accidentally or whether it requires an intentional use of force. As defined in California, assault “requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.*.*.* We conclude that this definition requires an intentional use of force.” Vasquez-Gonzalez, slip op. at 12.

Now as I was reading this case, I was puzzled by the fact that Mr. Vasquez did not apply for 212(c) relief back in 1999. But, the case soon answered that question. Mr. Vasquez claims, and the government does not disagree, that the Immigration Judge failed to inform him of his eligibility for 212(c) relief. The Immigration Judge’s failure to inform him of his eligibility of relief can serve as the basis for a collateral attack on the underlying removal order if the noncitizen can demonstrate prejudice. In other words, Mr. Vasquez must show that it is plausible that the Immigration Judge would have granted 212(c) relief back in 1999. To determine whether the defendant has demonstrated plausibility, the courts first identify the factors relevant to the agency’s exercise of discretion for the relief being sought. Second, the court determines whether, in light of the factors relevant to the form of relief being sought it was plausible that the agency back in 1999 (during deportation hearings) that Mr. Vasquez would have granted 212(c) relief. United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014). The Ninth Circuit looked at the positive and negative discretionary factors for 212(c) relief and concluded that because of the seriousness of his crimes he would have been required to make a heightened showing of unusual or outstanding equities to warrant discretionary relief from removal. The Ninth Circuit concluded that at the time of his deportation in 1999, he would not have met this heightened burden.

United States v. Vasquez-Gonzalez, No. 15-10285 (9th Cir. August 22, 2018).