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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Following the Supreme Court’s decision in Descamps, the Ninth Circuit adhered to its original decision in this case (despite the frolic occasioned by Aguila-Montes de Oca). It held that a court may only examine the elements of a conviction to determine whether the conviction satisfies the requirements of a federal definition. Further, a reviewing court may look to the contents of a record of conviction only when necessary to identify which of multiple alternative elements the defendant was convicted of (and then only if at least one alternative would satisfy the federal definition).
Here, the court found the immigrant’s conviction under the Uniform Code of Military Justice for using a government computer to access pornography did not include as an element the depiction of a minor engaging in sexually explicit conduct (because the order he violated prohibited accessing any type of pornography), so the conviction did not satisfy the aggravated felony definition of conviction of a child pornography offense. Nor could the government resort to the record of conviction because the statute of conviction was not divisible into multiple alternative elements–the element of the depiction of a minor engaging in sexually explicit conduct was entirely missing from the offense.
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The Board held that a conviction for unlawful possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) was categorically an aggravated felony. The Immigration and Nationality Act makes a conviction under “section 922(g)(1)…
of title 18, United States Code (relating to firearms offenses)” an aggravated felony. The respondent had argued the parenthetical “relating to firearms offenses” limited the definition to firearms and thus excluded ammunition offenses. The Board rejected that argument. It noted that parentheticals have often been found to be merely descriptive and that the language of this particular parenthetical does not indicate Congress intended it to have a limiting effect.
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The Ninth Circuit held that a conviction for California Penal Code section 288(c)(1) (lewd or lascivious act on child 14 or 15 years of age by a person at least 10 years older) is categorically a crime of violence under 18 USC 16(b), and thus is an aggravated felony with a sentence to one year or more.
Section 16(b) requires that the offense be a felony which “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Citing United States v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2012) and Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. 2012), the court held that there only need be a substantial risk of the use of force in an “ordinary” case prosecuted under the statute. An offense may be a categorical aggravated felony even where there is a possibility that the statute may be violated “at the margin” in a way that does not involve such a risk.
The court found that “in the ordinary case” of 288(c)(1) there is a substantial risk that the perpetrator will use physical force against the victim, since the victim may resist and the adult may use physical force to ensure compliance. The petitioner had argued the statute covered offenses where the victim consented to the conduct, but the court held that such a possibility at the margin was not enough to prevent it from being considered a crime of violence. The court also noted that PC 288(c)(1) requires an age difference of at least 10 years, which in its view made the use of physical force more likely than in consensual statutory rape (where the perpetrator need only be 18 years of age and the victim could be just one day shy of 18).
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The Ninth Circuit held that a conviction under California Penal Code section 417.3 with a sentence to one year or more is categorically an aggravated felony crime of violence. PC 417.3 penalizes brandishing a firearm in the presence of the occupant of a motor vehicle. The Board of Immigration Appeals had held that it satisfied the definition of crime of violence at 18 USC 16(a) and (b), but the Ninth relied only on subsection (a). It held that PC 417.3 requires brandishing a firearm in a threatening way that would reasonably cause the victim to fear bodily harm. The Ninth held this offense necessarily involves a “threatened” use of force under 18 USC 16(a).
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This case began with a permanent resident’s conviction for violating California Vehicle Code section 10851(a) and went all the way up to the Supreme Court. The Supreme Court vacated the Ninth Circuit’s previous decision that aiding and abetting does not come within the generic definition of theft for aggravated felony purposes. It held it does. On remand, the Ninth decided the two remaining issues in the case.
First, the Ninth held the modified categorical approach permits use of facts alleged in a charging document if the government also submits an abstract of judgment or minute order that specifies the noncitizen pled to the count that contains those facts. (To be more precise, the court should have held that “elements” alleged in the charging document may be used.) Thus, it rejected the noncitizen’s argument that the reviewable documents did not specify whether he was convicted of taking or driving or the non-theft offense of accessory after the fact, which VC 10851(a) also penalizes.
Second, the court rejected the noncitizen’s argument that the aggravated felony theft definition requires intent to permanently deprive. Intent to temporarily deprive also satisfies the definition under Board and Ninth Circuit precedent.
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In this criminal sentencing case, the Ninth Circuit found–as the government conceded–that burglary under section 205.060 of the Nevada Revised Statutes is not divisible per Descamps and thus is not subject to the modified categorical approach to determine if it is a crime of violence. Nor did the government argue the offense is a categorical crime of violence. Like California Penal Code section 459, NRS 205.060 requires only “entry.” It does not specify breaking and entering and apparently it encompasses entering stores open to the public.
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