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Part I: 288c and PSC
After being very quiet for a few weeks and issuing no opinions on certain days, the Ninth Circuit made up for it this past week by issuing two normal-size decisions and one ninety-nine-page decision on DACA. I am going to divide this blog post into two parts to make it easier for everyone. In Part I, I will analyze the two normal-size cases that came down from the Ninth Circuit. In Part II, I will analyze the Ninth Circuit’s decision upholding the preliminary injunction, enjoining the government from rescinding DACA from current beneficiaries. To cut back on the suspense – it’s a great decision.
Now for Part I. The Ninth Circuit held that Cal. Penal Code § 288(c) (lewd and lascivious behavior with a child between the ages of fourteen and fifteen by a perpetrator who is more than ten years older than the victim) is categorically neither a crime of child abuse nor a crime involving moral turpitude. If you are saying “what?????” you are not alone. Those of us that practice crim/immigration in California know that Cal. Penal Code § 288 is the bad conviction for sexual abuse of a minor – not the less bad conviction for sexual abuse of a minor like § 261.5 or 288A. This case surprised me. That said, I believe the Ninth Circuit decided the case correctly. Second, the Ninth Circuit held that the term a “particularly serious crime” is not unconstitutionally vague because the adjudicator must analyze the actual conduct of the perpetrator rather than use an ordinary person analysis. I think the Ninth Circuit wrongly decided this case and turned the “unconstitutionally vague” concept on its head. I hope that the attorneys in that case seek both panel rehearing and rehearing en banc. To make the blog easier for you to follow, I have added interactive links that will take you directly to the cases and important statutes that the courts cite.
Ninth Circuit
Lewd and Lascivious Behavior with a Child of Fourteen or Fifteen Years of Age Where the Perpetrator is at Least Ten Years Older Than the Child is Neither a Crime of Child Abuse nor a Crime Involving Moral Turpitude – It’s Also Not a Crime of Violence or a Crime of Sexual Abuse of a Minor
I often work with criminal attorneys to craft immigration-safe pleas or to obtain post-conviction relief for noncitizens. Sometimes, I think their heads will explode when I tell them to plead to burglary or receipt of stolen property instead of to petty theft; or when I tell them not to worry about the perjury charge (as long as they plead to fewer than 365 days imprisonment). Now, I get to add another mind-boggling perfectly safe immigration plea: Cal. Penal Code § 288(c) (lewd and lascivious behavior with a child between the ages of fourteen and fifteen by an adult who is at least ten years older than the victim) (as long as the perpetrator does not want to file an immigrant visa petition for a family member). Reading this introduction, you might (reasonably) think that the judges on the Ninth Circuit have lost their collective minds. But the case actually makes sense and the Ninth Circuit seems to have decided it correctly. So much so, in fact, that two of the three judges on the panel filed a separate concurring opinion asking both Congress and the Supreme Court to come up with a new analysis. The concurring judges state: “If Congress will not or cannot act.*.*.* we can only hope that the Supreme Court will devise a more straight-forward approach to this area of law.” Menendez v. Whitaker, No. 14-72730, slip op. at *20 (9th Cir. Nov. 8, 2018) (Callahan J. and Owens J. concurring).
This case consolidated two separate petitions for review, one filed by Elisa de Jesus Menendez and one filed by Hector Rodriguez-Castellon. The Ninth Circuit held that Cal. Penal Code § 288(c) (lewd and lascivious behavior with a child between the ages of fourteen and fifteen) is categorically not a crime of child abuse and is categorically not a crime involving moral turpitude. If you are like me, you might be thinking, how is this crime not an aggravated felony crime of sexual abuse of a minor under INA § 101(a)(43)(A)? Why didn’t ICE make that argument? Were they asleep? Actually, the Ninth Circuit had previously held that Cal. Penal Code § 288(c) is categorically not an aggravated felony crime of sexual abuse of a minor. U.S. v. Castro, 607 F.3d 566 (9th Cir. 2010). And, under Sessions v. Dimaya, 138 S.Ct. 1204 (2018), it is not a crime of violence. For immigration purposes, unless you have a client who might want to petition for a family member, it is a perfectly safe immigration plea. (It is likely a crime of sexual abuse of a minor under the Adam Walsh Act).
Facts of the Cases
Elisa de Jesus Menendez is a native and citizen of El Salvador. She entered the United States without inspection, subsequently got married and had three children. In 2004, she adjusted her status to that of a lawful permanent resident under the Nicaraguan Adjustment and Central American Relief Act (NACARA). On February 23, 2010, Ms. Menendez pleaded nolo contendere to Cal. Penal Code § 288(c)(1) (lewd and lascivious act with a child of fourteen or fifteen years of age when the defendant is at least ten years older than the child). The court sentenced her to 180 days in county jail and to five years of probation. In October 2018, ICE issued a Notice to Appear and charged her with being removable for having been convicted of a crime of child abuse. Ms. Menendez admitted the charges but argued that she was eligible for cancellation of removal for lawful permanent residents under INA § 240A(a). Remember that she admitted that Cal. Penal Code § 288(c)(1) was a crime of child abuse. This admission becomes critical later on in the case. The Immigration Judge (IJ) found that Ms. Menendez was ineligible for cancellation because she had not established seven years of continuous residence in the United States after being admitted in any status, prior to the commission of the offense. The IJ found that Ms. Menendez’s conviction was categorically a crime involving moral turpitude (CIMT) and that the stop time rule applied. On August 17, 2004, the government admitted Ms. Menendez to the United States. Thee felony complaint charged her with actions violating Cal. Penal Code § 288(c)(1) on or about October 14, 2009. She only had five years and two months of continuous residence instead of the required seven years. The IJ denied Ms. Menendez’s applications for cancellation of removal and for voluntary departure and ordered her removed to El Salvador. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision on all grounds and ordered Ms. Menendez removed to El Salvador.
On to the next fact pattern. Hector Rodriguez-Castellon is a native and citizen of Mexico. On June 16, 1975, the government admitted him to the United States as a lawful permanent resident. On June 7, 2005, he pleaded nolo contendere to Cal. Penal Code § 288(c)(1). On June 2, 2009, ICE served him with a notice to appear (NTA) alleging that he was removable as an aggravated felon for having been convicted of a crime involving sexual abuse of a minor under INA § 101(a)(43)(A); for having been convicted of an aggravated felony crime of violence under INA § 101(a)(43)(F); and for having been convicted of a crime of child abuse as defined by INA § 237(a)(2)(E)(i). The IJ sustained all three charges and ordered Mr. Rodriguez-Castellon removed to Mexico. Mr. Rodriguez-Castellon appealed to the BIA. The BIA found that Cal. Penal Code § 288(c)(1) is categorically not an aggravated felony crime for sexual abuse of a minor. Citing, United States v. Castro, 607 F.3d 566 (9th Cir. 2010). But the BIA found that Cal. Penal Code § 288(c)(1) was a crime of violence under 18 U.S.C. § 16(b). The Ninth Circuit denied Mr. Rodriguez-Castellon’s petition for review, holding that Cal. Penal Code § 288(c)(1) is categorically a crime of violence because it raises a substantial risk of the use of force in the ordinary case. Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013). Two years later, the Ninth Circuit held that 18 U.S.C. § 16(b) (crime of violence due to substantial risk of the use of force) was unconstitutionally vague. Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). Then, in 2018, the Supreme Court affirmed the Ninth Circuit’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In 2015, in light of the Ninth Circuit’s decision in Dimaya, Mr. Rodriguez-Castellon filed a motion to reopen with the BIA. The BIA denied Mr. Rodriguez-Castellon’s motion as untimely. But the BIA noted that due to the change in law, the case may warrant a motion to reopen it sua sponte. But the BIA declined to exercise its sua sponte authority because, it reasoned, Mr. Rodriguez-Castellon was still removable under INA § 237(a)(2)(E) for having been convicted of a crime of child abuse.
Legal Analysis
Jurisdiction and the Elements of the Statute
First, the Ninth Circuit determined its own jurisdiction. It found that it had jurisdiction to review legal errors in Ms. Menendez’s case. And it noted that while it generally lacked jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings; it had jurisdiction in Mr. Rodriguez-Castellon’s case for the limited purpose of reviewing the reasoning behind the decision for legal or constitutional error.
Then, the Ninth Circuit looked at Penal Code § 288(c) and determined it consisted of the following elements: 1) willfully and lewdly; 1) committing any lewd or lascivious act; 3) on a child ages fourteen or fifteen; 5) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and 5) the defendant must be at least ten years older than the child. Menendez v. Whitaker, No. 14-72730, slip op. at *12-13 (9th Cir. Nov. 8, 2018). The Ninth Circuit noted that the California courts have expansively construed the actus reus requirement of 288(c)(1) as to make it overly broad for federal purposes. I find that there is often this interesting interplay between the state statutes and the federal statutes. The states want to interpret crimes as broadly as possible to be able to prosecute defendants in as many potential situations as possible. By contrast, when the federal courts look to the state statutes, they want to interpret the state statute as restrictively as possible so that the crime falls within the federal generic definition of the statute. As I said, it’s an interesting tension.
The Ninth Circuit noted that the lewd and lascivious element of the crime focuses on the defendant’s sexual intent rather than the act performed. A defendant can touch the child in a seemingly innocent way including touching the child’s thigh or close hugging or even not touch the child at all and still be convicted of this offense. For example, a defendant can even be convicted of section 288(c)(1) by making sexual requests over the telephone or through a text message. The statute does not require that the defendant know that the child is underage. A good faith and reasonable mistake of age is not a defense to a charge under section 288(c)(1).
Crime Involving Moral Turpitude
Once the Ninth Circuit determined the elements of the crime and how the California courts have construed the statute, it looked to whether the offense was categorically a crime involving moral turpitude (CIMT). The Ninth Circuit once again tried to define a CIMT. It cobbled together these definitions of a CIMT: “those [crimes] involving fraud and those involving grave acts of baseness or depravity.” Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005). The essence of moral turpitude is an evil or malicious intent. Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013). In addition, crimes of moral turpitude “almost always involve an intent to injure someone or an actual injury, or protected class of victims.” Turijan v. Holder, 744 F.3d 617, 622 (9th Cir. 2014). The Ninth Circuit noted that because Cal. Penal Code § 288(c)(1) only requires sexual intent and because a good faith, reasonable mistake of age is not a defense; there is no evil or malicious intent. “Section 288(c)(1) thus lacks the corrupt scienter requirement that is “the touchstone of moral turpitude.”” Menendez slip op. at *15 (internal quotations omitted). The Ninth noted that Cal. Penal Code § 288(c)(1) does not require an intent to injure or any actual injury. It found that while Cal. Penal Code § 288(c) does involve a protected class of persons – minors aged fourteen or fifteen – not all criminal statutes intended to protect minors establish CIMTs. The Ninth analogized the case to Cal. Penal Code § 647.6(a) (annoying or molesting a child under the age of eighteen) where it held that Cal. Penal Code § 647(a)is not categorically a CIMT. Nicanor-Romero v. Mukasey, 523 F.3d 992, 1000 (9th Cir. 2008) partially overruled on other grounds Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc). The elements of the offense created a “realistic probability” of a conviction based on conduct that did not involve moral turpitude. The Ninth Circuit held that Cal. Penal Code § 288(c)(1) is categorically not a CIMT and because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply.
Child Abuse
The Ninth Circuit then found that Cal. Penal Code § 288(c)(1) is categorically not a crime of child abuse. First, the Ninth Circuit determined that the BIA had defined the crime of child abuse as containing these elements: 1) mens rea that rises at least to the level of criminal negligence; and, 2) “maltreatment” that results either in actual injury to a child, or a “sufficiently high risk of harm” to a child. The Ninth Circuit noted that Cal. Penal Code § 288(c)(1) does not have the mens rea of at least criminal negligence. It requires the defendant to act “willfully” but only as to the defendant’s commission of the act. It requires no intent to violate the law, to injure another, or to acquire any advantage. Plus, a reasonable and good faith mistake of age is not a defense to Cal. Penal Code § 288(c)(1). Second, Cal. Penal Code § 288(c)(1) does not require proof of actual injury or a “sufficiently high risk of harm” as an element of the offense. The statute “criminalizes conduct that does not necessarily constitute abuse,” and “does not address conduct that is per se abusive”. Castro, 607 F.3d at 569. The Ninth Circuit concludes that Cal. Penal Code § 288(c)(a) is categorically not a crime of child abuse.
Now for the disappointing part of the case, and a lesson for us all. NEVER CONCEDE THAT A CRIME IS A REMOVABLE OFFENSE – NO MATTER HOW HORRIBLE THE CRIME OR HOW OBVIOUS IT SEEMS THAT IT IS A REMOVABLE OFFENSE! Sorry for shouting, but had Ms. Menendez not conceded that she had been convicted of a crime of child abuse, she would be walking around with her green card today and would be eligible to naturalize. Sadly, Ms. Menendez conceded that she had been convicted of a crime of child abuse. The Ninth Circuit noted that Ms. Menendez’s concession of removability was in error, but the validity of her concession is not at issue. The Ninth Circuit noted that concessions in removal proceedings are binding except in “egregious circumstances” such as when binding the noncitizen would produce an unjust result. Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011). The Ninth Circuit remanded Ms. Menendez’s case to the BIA to consider whether binding Ms. Menendez to her concession would produce an “unjust result.” Sigh…. It seems pretty unjust to remove a lawful permanent resident for a crime that the Ninth Circuit has determined is not an inadmissible or deportable offense.
Menendez v. Whitaker, No. 14-72730 (9th Cir. Nov. 8, 2018).
A Particularly Serious Crime as Set Forth in INA § 241(b)(3)(B) is not Unconstitutionally Vague on its Face
The statutory phrase a “particularly serious crime” is not unconstitutionally vague on its face, even after the Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). I believe this case was wrongly decided and I truly hope that the attorneys are seeking either panel rehearing or rehearing en banc. The Ninth Circuit found that because the adjudicator can look to the actual facts of the case in determining whether the crime is particularly serious, it does not have the problems associated with unconstitutionally vague statutes such as those decided in Johnson and Dimaya. At first, I agreed with the Ninth Circuit, but then I realized that they had completely flipped the analysis. The issue with an unconstitutionally vague statute is not whether the adjudicator can determine whether the conduct is a particularly serious crime; but whether the defendant had sufficient notice that their conviction and their conduct would constitute a particularly serious crime.
Bear with me here, two of the definitions of a particularly serious crime are: 1) An aggravated felony where the court has sentenced the noncitizen to an aggregate term of five years or more. INA § 241(b)(3)(B). Or, 2) any drug trafficking crime. Matter of Y-L-, 23 I.&N. Dec. 270 (A.G. 2002). These two definitions give the noncitizen clear guidelines as to what conduct and what crimes constitute a particularly serious crime. It enables the noncitizen to determine whether to accept a plea or whether to go to trial based on the potential immigration consequences of the plea. However, the third definition of a particularly serious crime, (the courts call it the Frentescu factors) seems problematic. The Frentescu factors consist of the following: 1) the nature of the conviction; 2) the circumstances and underlying facts of the conviction; 3) the type of sentence imposed; and 4) whether the type and circumstances of the crime indicate that the noncitizen will be a danger to the community. Matter of Frentescu, 18 I.&N. Dec. 244, 247 (BIA 1982).
I believe that the Frentescu factors are unconstitutionally vague because they do not give the noncitizen fair notice of the conduct the statute proscribes. The adjudicator looks at the conviction and the underlying conduct and determines whether it is a particularly serious crime after the conviction. The Supreme Court in Dimaya explained the reasoning behind the concern of unconstitutionally vague statutes:
The prohibition of vagueness in criminal statutes,” our decision in Johnson explained, is an “essential” of due process, required by both “ordinary notions of fair play and the settled rules of law.” *.*.*. The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have “fair notice” of the conduct a statute proscribes.
Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). By having the adjudicator determine whether the offense is a particularly serious crime after pleading, turns the entire notion of “fair notice” on its head. It makes no sense. The first two definitions of a particularly serious crime are not unconstitutionally vague because the defendant can understand the consequences of the plea. Yet the Frentescu factors are problematic.
Why is this issue important? Well, noncitizens who have been convicted of a “particularly serious crime” are statutorily ineligible for withholding of removal and the U.S. government could be sending them back to their deaths. In this case, the Ninth overturned its previous holding in Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) about whether the term particularly serious crime was unconstitutionally vague finding that the holding was clearly irreconcilable with the Supreme Court’s decisions Johnson and Dimaya. The Ninth then looked “with fresh eyes” to the concept of a particularly serious crime and whether it was unconstitutionally vague. The Ninth Circuit noted that the standard is uncertain, but that uncertainty does not mean that a statute is unconstitutionally vague. The Ninth noted that many statutes have uncertain standards, but “so long as those standards are applied to real-world facts, the statutes are almost certainly constitutional.” Melgoza-Guerrero v. Whitaker, No. 15-72080 slip op. at *10 (9th Cir. Nov. 9, 2018). “Critically, the “particularly serious crime” inquiry in 8 U.S.C. § 1231(b)(3)(B)(ii) [INA § 241(b)(3)] applies only to real-world facts.” Melgoza Guerrero, slip op. at *10. The Ninth Circuit noted that because the particularly serious crime inquiry requires the BIA to look at the noncitizen’s conduct; the categorical and modified categorical approaches don’t apply. The Ninth Circuit noted that the fatal combination at issue in Johnson and Dimaya is absent in the particularly serious crime analysis. In the particularly serious crime analysis, the adjudicator must look at the noncitizen’s actual conduct – there is no “ordinary” case analysis. Accordingly, the particularly serious crime provision is not unconstitutionally vague on its face. As I said, I believe this case was wrongly decided and I hope the attorneys decide to appeal.
Melgoza Guerrero v. Whitaker, No. 15-72080 (9th Cir. Nov. 9, 2018).
If anyone has any comments on the blog, please feel free to contact me at mkahn@immigration-defense.com. I look forward to hearing from you.
You may refer to part two of this week’s blog here.