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Remember way back in August 2018, when we could say, “When is meth not meth? When it’s California meth!” It looks like those halcyon days are gone and California meth is back to being meth. It was always too good to last. The Ninth Circuit withdrew and depublished its landmark decision in Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018). For a scientific analysis of the chemistry behind Lorenzo v. Whitaker, please read this guest blog by Sean Patrick McGinley, a third-year law student at Boston College.
Also remember way back to the beginning of January 2019, when California robbery was not an aggravated felony crime of violence? Well, those days might also be over thanks to a new Supreme Court decision that came down on January 15, 2019. The Supreme Court held that a Florida robbery conviction is a violent felony under the Armed Career Criminal Act (ACCA). The ACCA and the Immigration and Nationality Act are closely related, so I expect that ICE will start charging noncitizens convicted of robbery with an aggravated felony crime of violence under INA § 101(a)(43)(F). In other Ninth Circuit news, the Ninth reiterated that there is no duress exception to the material support bar for asylum and found that there is no de minimis exception to the material support bar for asylum. If ever Congress needed to act on a statute, they need to act on this one. No cases came down from the putative Attorney General or from the Board of Immigration Appeals.
UNITED STATES SUPREME COURT
A Florida Conviction for Robbery is Categorically a Violent Felony Under the Armed Career Criminal Act
In my previous blog from January 11, 2019, I analyzed a Ninth Circuit decision holding that a conviction for California robbery was not an aggravated felony crime of violence; but, was an aggravated felony theft offense. United States v. Martinez-Hernandez, No. 16-50423 (9th Cir. Jan. 9, 2019). That case was so early January 2019. Now that we are toward the end of January 2019, it might be an aggravated felony crime of violence. The U.S. Supreme Court held that a Florida conviction for robbery is categorically a violent felony under the Armed Career Criminal Act (ACCA). You might be wondering why an immigration blog that focuses on the Ninth Circuit is blogging about a criminal case out of Florida? The ACCA is the fraternal twin of the aggravated felony provisions of the Immigration and Nationality Act. The ACCA defines a “violent felony” as any crime punishable by imprisonment for a term exceeding one year that “has as an element the use, attempted use or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B). If that language sounds familiar, it is because the Immigration and Nationality Act incorporates the definition of a crime of violence under 18 U.S.C. § 16(a) which defines a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Looking at those two definitions perhaps the right relationship here between the ACCA and the aggravated felony provision of a crime of violence is that of an identical twin – not fraternal.
The Supreme Court noted that Florida law defines robbery as “the taking of money other property…from the person or custody of another…when in the course of the taking there is the use of force, violence, assault or putting in fear.” The Florida Supreme Court has held that the “use of force” necessary to commit robbery requires “resistance by the victim that is overcome by the physical force of the offender.” Stokeling v. United States, No. 17-5554, slip op. at *2 (Jan. 15, 2019). For reference, Cal. Penal Code § 211 defines robbery as:
[T]he felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
The California language is very similar to the Florida language, especially the part where it says, “accomplished by means of force or fear.”
The Supreme Court reviewed the common law definition of the term “robbery” and found that under the common law definition the courts used the terms “violence” and “force” interchangeably. The Court noted a few common law cases in which it was robbery to pull a diamond pin out of a woman’s hair when doing so tore away the hair attached to the pin or to rudely push a person for the purposes of diverting them to steal something from them. Now, for those readers that have never used a bobby pin in their hair, let me tell you that every time you take a bobby pin out of your hair, inevitably a few strands of hair come with it. It’s truly not a violent act. Nonetheless, the Court held “In sum, “physical force,” or “force capable of causing physical pain or injury”.*.*.*. includes the amount of force necessary to overcome a victim’s resistance.” Stokeling, slip op. at *13. ICE might start charging crimes such as robbery as crimes of violence under INA § 101(a)(43)(F) because a crime of violence under 18 U.S.C. § 16(a) likely includes the amount of force necessary to overcome a victim’s resistance.
The dissent in this case was interesting because it included Sotomayor, Kagan, Ginsburg, and Roberts – not the usual four dissenters (Roberts joined the dissenters and Breyer joined the majority. That grouping could be interesting for future decisions) Justice Sotomayor memorably wrote:
“Starting today, however, the phrase “physical force” in § 924(e)(2)(B)(i) will apparently lead a Janus-faced existence. When it comes to battery, that phrase will look toward ordinary meaning; when it comes to robbery, that same piece of statutory text will look toward the common law. To the extent that it is a tenable construction, the majority has announced a brave new world of textual interpretation. To the extent that a phrase so divided cannot stand, meanwhile, one could be forgiven for thinking that the majority, though it claims to praise Johnson, comes instead to bury it.”
Stokeling, slip op. at *10 (Sotomayor, J., dissenting). For those of you who are not obsessed with crimes of violence, Johnson is a Supreme Court decision that held for a crime to be a violent crime, the elements of the crime must include the use of violent force. Johnson v. United States, 135 S. Ct. 2551 (2015). Stokeling seems to tear apart the logic of Johnson which is not good for crim/imm.
But not only is that paragraph memorable for what it says, but it’s also amusing for the writing. The New Yorker magazine used to have a section called “Block that Metaphor” where they would quote passages from newspapers or magazines where the writer mixed their metaphors. Justice Sotomayor does not mix her metaphors, but she definitely mixes her analogies. It is funny. (And I need to find humor wherever I can these days). Sotomayor references two plays and one speech in that single paragraph. (William Shakespeare, The Tempest, Act V, Scene 1: “Oh brave new world that has such people in it.” William Shakespeare, Julius Caesar Act III, Scene 2: “I have come here to bury Caesar not to praise him.” Abraham Lincoln, “A house divided against itself cannot stand.” Abraham Lincoln, House Divided Speech (June 16, 1858). There may have been more analogies that I did not recognize. But while I am laughing at the mixed analogies, she is correct on her legal analysis. It now appears that a pickpocket can be convicted of an aggravated felony crime of violence. It is possible that ICE will now charge every conviction for robbery as an aggravated felony crime of violence. Oh, brave new world indeed.
Stokeling v. United States, No. 17-5554 (Jan. 15, 2019).
NINTH CIRCUIT
It Looks Like California Meth is Once Again Meth at Least for Certain Controlled Substance Statutes
The Ninth Circuit withdrew and depublished its landmark decision in Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018). Bay way of background, in Lorenzo, Mr. Lorenzo pleaded nolo contendere to possession of methamphetamine and transportation of methamphetamine under Cal. Health & Safety Codes § 11378 (possession for sale) and Cal. Health & Safety Code § 11379(a) (transportation/sale/furnishing of a controlled substance). Mr. Lorenzo’s attorneys moved to terminate proceedings arguing that the definition of methamphetamine under California law is broader than the federal definition under the Controlled Substances Act. The CSA only includes optical isomers of methamphetamine, whereas California law includes both optical and geometric isomers of methamphetamine. The Ninth Circuit agreed with Mr. Lorenzo and remanded the case to the BIA.
In its remand order the Ninth Circuit noted that neither the immigration court nor the BIA addressed whether Mr. Lorenzo was removable because his conviction for Cal. Health & Safety Code § 11379(a) (transportation/sale/or furnishing of a controlled substance) constitutes illicit trafficking in a controlled substance under INA § 101(a)(43)(B) and was an aggravated felony under INA § 237(a)(2)(iii). (Please remember, that before January 1, 2014, California transportation of a controlled substance under Cal. Health & Safety Code § 11379(a) was not an aggravated felony controlled substance offense because the state statute included transportation for personal use while the federal statute only included commercial transportation. I would be very good at a California crim/imm game of Trivial Pursuit – not as good as some, but pretty good). Yet the Ninth Circuit cautioned that if “the BIA addresses the government’s aggravated felony theory on remand, it should consider whether that theory suffers from the same flaw as the government’s theory of removability under 8 U.S.C. § 1227(a)(2)(B)(i) [INA § 237(a)(2)(B)(i)].” Lorenzo v. Sessions, 902 F.3d 930, 940 (9th Cir. 2018), opinion withdrawn on denial of reh’g sub nom. Lorenzo v. Whitaker, No. 15-70814, (9th Cir. Jan. 17, 2019), and opinion superseded on denial of reh’g sub nom. Lorenzo v. Whitaker, No. 15-70814, (9th Cir., Jan. 17, 2019).
In the January 17, 2019, memorandum opinion, the Ninth Circuit on the record before them granted the petition for review and remanded the case to the BIA to determine whether Mr. Lorenzo’s conviction for Cal. Health & Safety Code § 11379(a) (transportation/sale/furnishing) was illicit trafficking of a controlled substance; but with the same cautionary advice as is in the original withdrawn decision. That language “on the record before them” is important if you try to use the reasoning in this decision in your own cases.
In the memorandum decision, the Ninth Circuit used the categorical approach. First, it found that the California definition of methamphetamine is broader than the Federal definition as it includes both optical and geometric isomers whereas the federal definition includes only optical isomers. Lorenzo v. Whitaker, No. 15-70814, slip op. at *5 (9th Cir. Jan. 17, 2019). Because the mismatch between the federal and state statutes is apparent on its face, “such that no rational interpretation of either statute would reconcile the two, Lorenzo is not required to “point to his own case or other cases in which the state courts in fact did apply the statute in special (nongeneric) manner for which he argues.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).” Lorenzo, slip op. at *5. The Supreme Court in Duenas-Alvarez held:
[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
Duenas-Alvarez, 549 U.S. at 193. In the Ninth Circuit, “where the state statute’s greater breadth is evident from its text,” the noncitizen or the defendant may rely on the statutory language to establish that the statute is overly inclusive. United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc). Here, because the California statute includes geometric and optical isomers there is no need to find cases that where the State of California prosecuted a defendant for possession of geometric isomers.
From a legal nerd point of view, here is where this case gets even more interesting. In its petition for rehearing the government contends that the facial overbreadth of the California law is of no significance because geometric isomers of methamphetamine don’t actually exist. The government asked the Ninth Circuit to take judicial notice of evidence presented in a different case to support this assertion. The Ninth Circuit politely refused the Government’s invitation stating that they will not consider issues that a party raises for the first time in a petition for rehearing and that their review generally is limited to the administrative record. “The government could have raised its argument about theoretical impossibility in this court but did not timely do so. We do not foreclose the government from presenting its new argument or new evidence in another case.” Lorenzo, slip op. at *6-7 (emphasis in the original). The Ninth Circuit in a footnote noted that the original Lorenzo decision “does not conclude that geometric isomers of methamphetamine exist; it concludes only that the record in this case does not show that they do not exist.” Lorenzo, slip op. at *7, n. 2. While Mr. Lorenzo may have benefitted from this argument, it appears that if anyone else tries to make this argument the Government might be ready with an affidavit from a chemist arguing that geometric isomers in methamphetamine do not exist.
We are posting another guest blog by Sean Patrick McGinley a third-year law student at Boston College and engineer discussing the merits of the Government’s arguments. Spoiler, the Government is right but, there might be other arguments that we can make arguing that the California state definition of methamphetamine is broader in other contexts – namely Cal. Health & Safety Code §§ 11383.5(c) (possession with intent to manufacture methamphetamine) and 11383.7(c) (possession with intent to sell or transfer). These statutes define methamphetamine as including positional isomers which is a broader definition than the federal definition which only includes isometric isomers. According to Mr. McGinley, positional isomers of methamphetamine includes dimethylphenethylamine, a flavoring agent You can access Mr. McGinley’s excellent blog here.
The important take away from this case is that now we can start making the argument that state controlled substance convictions are not a match for federal controlled substance convictions. The key is not to look at the name of the controlled substance, but to compare the chemical composition of the controlled substances. Maria Andrade recommends reading the statutes and doing a key search for certain phrases, you know, positional isomers, and so on. Another way is for groups of attorneys to collaborate and hire a chemist to analyze the state laws versus the federal laws to see if they match. It’s a brave new world for us!
Lorenzo v. Whitaker, No. 15-70814 (9th Cir. Jan. 17, 2019); and unpublished memorandum decision, Lorenzo v. Whitaker, No. 15-70814 (9th Cir. Jan. 17, 2019).
There is No Duress or De Minimis Exception to the Material Support Bar for Asylum
The Ninth Circuit reiterated that there is no duress exception to the material support bar for asylum and held that there is not de minimis funds exception to the material support bar. I understand that we have a dysfunctional Congress right now, but, if they could enact or revise only one law, this law might be the one to revise.
Sunil Rayamajhi is a citizen of Nepal. In 2003, he accepted an administrative position with Doctors Without Borders. Because of his work with Doctors Without Borders, he became the target of a Nepali terrorist organization called the Maoists. In 2004, the U.S. Secretary of State designated the Maoists as a terrorist organization under INA § 212(a)(3)(B)(vi)(II). But in 2012 the Secretary of State revoked the designation. From 2004 to 2008, the Maoists beat Mr. Rayamajhi twice; demanded that he give them money; threatened him and his family; and demanded that he join their political party. In February 2009 (three years before the Secretary of State revoked the designation of the Maoists as a terrorist organization) a man that Mr. Rayamajhi recognized as one of his attackers and as a member of the Maoists approached him and demanded that Mr. Rayamajhi give him money. Mr. Rayamajhi gave him the equivalent of $50. Mr. Rayamajhi left Nepal soon after that incident.
In June 2009, Mr. Rayamajhi entered the United States on a tourist visa and in December 2009 he applied for asylum and for withholding of removal. The Immigration Judge found that Mr. Rayamajhi was statutorily ineligible for asylum and for withholding of removal because he had provided material support to a designated terrorist organization. (Seriously, this law is terrible). However, the Immigration Judge granted Mr. Rayamajhi deferral of removal under the Convention Against Torture (CAT). Mr. Rayamajhi appealed the denial of asylum and withholding of removal and the government appealed the grant of the CAT claim. (What is wrong with these people? The dude was being tortured because he worked for Doctors Without Borders and our Government is arguing that he should be sent back to Nepal where he will be tortured?) The BIA held that there was no duress exception and no de minimis exception to the material support bar. The BIA also concluded that the Immigration Judge had not properly considered the country condition evidence in the record as it pertained to the CAT deferral. They remanded the case to the immigration court. On remand, the Immigration Judge once again granted Mr. Rayamajhi CAT deferral. Mr. Rayamajhi once again appealed the case to the BIA and argued that he should not be subject to the material support bar. The Government did not appeal the second grant of CAT relief. In 2016 the Board reaffirmed its denial of asylum and withholding, and Mr. Rayamajhi filed a petition for review with the Ninth Circuit.
First, the Ninth Circuit reiterated that under its prior decision in Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013) there is no duress exception to the material support bar. “The material support bar does not include an implied exception for individuals “who give support to a terrorist organization while “under duress.” Rayamajhi v. Whitaker No. 16-70534 slip op. at *7 (9th Cir. Jan. 15, 2019).
Next, the Ninth Circuit examined whether there is a de minimis exception to the material support bar. There isn’t. The Ninth Circuit noted that the BIA had held that there is no de minimis exception to the material support bar. Matter of A-C-M-, 27 I.&N. Dec. 303 (BIA 2018). However, the Ninth Circuit found that the statute itself is unambiguous and so there was no need to defer to the Board under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The statute itself denies engaging in terrorist activity as giving something that “affords material support, including a safe house, transportation, communications, funds…” INA § 212(a)(3)(B)(iv)(VI). The Ninth Circuit held, “[u]nder the plain text of § 1182(a)(3)(B)(iv)(VI) [INA § 212(a)(3)(B)(iv)(VI)] “funds” knowingly given to a terrorist organization are “material support,” regardless of the amount given.” Rayamajhi, slip op. at *9. The Ninth Circuit in a footnote notes that there is an exception to the material support bar where the person giving the support does not know and reasonably should not have known that they were dealing with a terrorist organization. However, that exception does not apply here because Mr. Rayamajhi knew that the person extorting him was a Maoist. Ryamajhi, slip op. *9 n. 2.
Judge Bennett concurred in the judgment but dissented in part from the reasoning of the Ninth. Judge Bennett believes that the phrase “material support” is ambiguous “the word “material,” when modifying “support,” is patently ambiguous.” Ryamajhi, slip op. at *12 (Bennett, J. concurring in part and dissenting in part). He’s not wrong. Judge Bennett believes that Chevron deference does apply and that the Ninth Circuit should have deferred to the BIA’s interpretation of an ambiguous statute. Judge Bennett writes:
“Although I concur in the judgment here, the majority’s reasoning will have consequences that extend beyond this case. In light of today’s decision, the agency will be unable to adopt a different permissible interpretation of the material support bar in the context of de minimis funds in the future.”
Rayamajhi, slip op. at *16 (Bennett, J. concurring and dissenting in part). There is no de minimis exception and no duress exception to the material support bar. Congress needs to revisit this law.
Rayamajhi v. Whitaker, No. 16-70534 (9th Cir. Jan. 15, 2019).
Additional Reading
- Top of the Ninth: Immigration Crimes Involving Moral Turpitude. What exactly is a single scheme of misconduct? When does one crime end and a second one begin?
- Top of the Ninth: An Arizona Domestic Violence Conviction is a Crime of Violence – Sometimes….
- Observations on the Updated USCIS I-601A “Reason to Believe” Policy for Immigrants with Crimes