Category Archives: Aggravated Felony

Matter of Martin Chairez-Castrejon (II)

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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Matter of Juan Esquivel-Quintana

The Board of Immigration Appeals held that unlawful sex with a minor aged 16 or 17 is an aggravated felony, even if the penal statute does not require lack of consent, if the offense requires as an element that the defendant be three or more years older than the victim.  It therefore held that a conviction for California Penal Code section 261.5(c) is an aggravated felony.  In reaching this conclusion (in a case arising in the Sixth Circuit), the Board stated its disagreement with the Ninth Circuit’s en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

The Board stated its disagreement with Estrada-Espinoza, but its opinion failed to address the statutory construction argument that led the eleven circuit court judges to unanimously hold that California Penal Code § 261.5(c) is not an aggravated felony.  Getting eleven judges to agree on anything is difficult, but it is even harder when the case involves an immigrant charged with a sex offense (although it may have helped that the defendant and victim in Estrada-Espinoza were a boyfriend and girlfriend living together with the consent of both sets of parents).  The statutory construction argument that compelled the Ninth Circuit was that the aggravated felony of “sexual abuse of a minor,” which is not defined in the Immigration and Nationality Act, should be drawn from the federal criminal definition of “sexual abuse of a minor” at 18 U.S.C. § 2243.  That federal criminal definition penalizes knowingly having sex with a minor under the age of 16 where there is a 4 year age differential.  It does not penalize consensual sex with a sixteen or seventeen-year-old, regardless of the age differential.  The Ninth Circuit found that since Congress has already supplied this definition for criminal purposes, it is the one that should be used for immigration purposes as well–unless the immigration statute specifies otherwise.  The Ninth Circuit also noted that sixteen is the age of consent in most states, as well as in the Model Penal Code (although some states, like California, set the age of consent at 18).  Thus, it would make no sense to impose the most severe immigration consequences for a conviction of conduct that would not even be criminal for federal purposes or in most states.

Although the Board did not address why it thought it had the authority to fashion a different definition of sexual abuse of a minor than the one enacted by Congress, it did cite social science research that shows an age differential of three or more years created a potentially coercive or exploitative situation that equals abuse.  It then provided examples of exploitative circumstances, such as where a high school teacher has a relationship with a student.  It also voiced its concern that a person may be convicted of Penal Code section 261.5(a) even where the victim is under sixteen and the age differential is substantially more than three years.  But Penal Code 261.5(c) is not the type of deal that a forty-year-old high school teacher would receive where he preys on a fourteen-year-old student.  There is a more serious California offense, Penal Code section 261.5(d), that could and would be charged in that type of situation.

Whether a conviction is an aggravated felony should be determined based on the minimum conduct that has a realistic probability of being prosecuted, not on the worst possible scenario.  That is what the Supreme Court emphasized in Moncrieffe.  And for Penal Code section 261.5(c), there is a realistic probability of a prosecutor charging it in a far more benign situation than posited by the Board.  This is exemplified by Estrada-Espinoza itself, where a fifteen- or sixteen-year-old girlfriend lived with her twenty-year-old boyfriend in the home of his parents with the knowledge and consent of her own parents.  That is hardly a coercive or exploitative situation and it is one that would be entirely legal if they had gotten married (or had lived in another state).  That type of scenario hardly justifies the Board’s disregard of Congress’s statutory definition of sexual abuse of a minor.

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Matter of Gustavo Ribeiro Ferreira

In Ferreira, the Board of Immigration Appeals held that conviction of a state controlled substances offense that, on its face, controls some substances not controlled by the federal Controlled Substances Act (in addition to some that are) establishes deportability unless the respondent establishes a realistic probability that the state would actually prosecute offenses involving the substances not covered by federal law.  This conclusion, however, is now in some doubt following the Supreme Court’s later decision in Mellouli v. Lynch.

ICE put Ferreira, a lawful permanent resident, in removal proceedings after his conviction of section 21a-277(a) of the Connecticut General Statutes Annotated in 2010.  It charged he was deportable for a controlled substance offense and aggravated felony because section 21a-277(a) prohibits the sale of various controlled substances.  Ferreira argued ICE could not establish deportability because his conviction record did not specify what substance he sold and at the time section 21a-277(a) covered sale of two opiate derivatives (benzylfentanyl and thenylfentanyl) not listed in the federal Controlled Substances Act, in addition to many substances that do appear in the federal Controlled Substances Act.

The Board labeled the two non-covered substances “obscure” and held the immigration judge should have conducted fact-finding to determine whether the State of Connecticut would actually prosecute a person for sale of those substances.  It reached this conclusion based on its reading of the Supreme Court’s decisions in Moncrieffe and Duenas-Alvarez, which held that the categorical approach was not an invitation to exercise “legal imagination.” To defeat a charge of deportability, that precedent requires a the respondent to show that there is a realistic probability that a state would prosecute an offense that does not meet the generic definition.  The Board then asserted

Under that test, for the proceedings to be terminated based on this discrepancy between the Connecticut and Federal schedules, Connecticut must actually prosecute violations of section 21a-277(a) in cases involving benzylfentanyl and thenylfentanyl.

Thus, the Board expected Ferreira to cite an example of a prosecution for one of those substances.

The problem with the Board’s approach is that it conflates obscurity with likelihood of prosecution.  Ferreira may not be able to provide an example of a Connecticut prosecution for benzylfentanyl or thenylfentanyl because they are not commonly abused drugs and thus are not commonly sold, particularly in a small state like Connecticut.  That does not mean, though, that Connecticut would not prosecute an offense involving one of those substances if given the chance.  Both substances are explicitly covered by the statute.  In other words, the fact that an offense is uncommon does not mean that a court would have to exercise legal imagination to say that it would be prosecuted.

The Supreme Court seemed to implicitly recognize this issue in its later decision in Mellouli.  Mellouli held that a Kansas conviction under an overbroad controlled substances offense does not establish deportability if the record of conviction does not establish the offense related to a substance covered by the federal Controlled Substances Act.  Mellouli did not address whether there was a realistic probability of Kansas prosecuting the substances that made the Kansas offense overbroad (salvia and jimson weed, which do not appear in the federal schedules).  This is a significant silence, since the Board had just a year earlier held in Ferreira that this must be addressed.  Why didn’t the Supreme Court address it?  It did not explain.  It just said (at footnote 8) that the case did not require the Court to decide whether Ferreira applied the categorical approach correctly.

I would argue, though, that it takes no legal imagination to suppose that a state would prosecute an offense involving a controlled substance that is explicitly covered by statute or regulation.  The fact that a state has not yet had the opportunity to prosecute an offense involving the substance does not mean it would not.  This is what distinguishes Ferreira’s situation from the concern raised by the Solicitor General in Moncrieffe–that the failure to explicitly exclude antique firearms from a state firearms statute would mean that it would not match the federal firearms definition even if the state does not actually prosecute antique firearms offenses.  Moncrieffe did not say that a state firearms statute that explicitly does cover antique firearms would not match the federal firearms definition merely because the state, perhaps a small one like Connecticut, has not had an opportunity to prosecute an antique firearms case yet.

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Roberto Roman-Suaste v. Holder

The Ninth Circuit held in Roberto Roman-Suaste v. Holder that a conviction for California Health and Safety Code section 11359 (possession of marijuana with intent to sell) is categorically an aggravated felony as a drug trafficking offense pursuant to INA § 101(a)(43)(B), 8 USC § 1101(a)(43)(B).

The petitioner had argued under Moncrieffe that there might be situations where a defendant is convicted of HS § 11359 for distribution for insignificant payment or payment for social, medical, or family purposes, which would not be illicit trafficking.  The court disagreed.  It found that any type of distribution for remuneration would be illicit trafficking and thus an aggravated felony under Moncrieffe.

The court further rejected the petitioner’s argument that California extends aiding and abetting liability beyond the generic federal definition, an argument that had little chance given the Supreme Court’s decision in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

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Carlos Alberto Rendon v. Holder

In an extremely helpful decision for noncitizen defendants, the Ninth Circuit held in Rendon v. Holder that California Penal Code § 459 (burglary) is not an aggravated felony as an attempted theft offense.

A state conviction meets the generic federal definition of an attempted theft offense if it includes the elements of intent to commit a theft offense and an overt act constituting a substantial step towards commission of such an offense. California burglary under section 459 consists of entry into a building, vehicle, or structure with intent to commit theft or any felony.  Thus, it is not necessarily an attempted theft offense because it might involve entering a structure to commit some other crime that is a felony.

Prior to the Supreme Court’s decision in Descamps, courts within the Ninth Circuit thus would have examined the record of conviction to determine whether it indicated a plea to entry to commit theft.  If so, then the conviction would be an aggravated felony.  Descamps, however, held that such an examination of the record (called a “modified categorical analysis”) was possible only where the offense is divisible.  Divisibility means that the statute of conviction specifies multiple alternative crimes, at least one of which meets a federal definition and at least one of which does not.  Multiple alternative crimes means the statute contains multiple alternative elements of functionally separate crimes, not alternative means of committing a single crime.  An element is something a jury must unanimously find beyond a reasonable doubt.  On the other hand, a jury need not agree on the means of committing a crime (for example, a jury may not need to agree on the type of weapon used in an assault).

The Ninth Circuit held that “theft or any felony” is not divisible because they are alternative means, not alternative elements.  A jury need not agree on whether the defendant entered a structure with intent to commit theft or any other felony to return a conviction for burglary under PC 459.  Since the offense is not divisible, a reviewing court cannot turn to the record of conviction to determine if the conviction was for entry with intent to commit theft.

California PC 459 therefore can never meet the definition of an attempted theft offense because it is broader than the federal generic definition and the modified categorical analysis cannot be used to narrow the conviction to meet the definition.

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