July 2019 Update

July 2019 Update

Big win! Ninth Circuit reverses Young rule on burden of proof. See Marinelarena v. Barr (9th Cir. July 18, 2019) (en banc) at at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/14-72003.pdf. The ILRC will soon publish a practice advisory on Marinelarena; check www.ilrc.org/crimes.

Marinelarena is a great win for our side. It protects noncitizens who are must apply for immigration relief – for example, undocumented people, or permanent residents who are deportable – and who were convicted under a “divisible” statute, if their record of conviction is vague as to which crime under the statute they were convicted of. This is especially useful for California drug offenses.

Example: Sections 11377-11379 and 11350-52 have been held to be “divisible” statutes as to the substance involved. These California statutes reach some controlled substances that also appear on federal drug schedules, and so are a controlled substance offense for immigration purposes (e.g., meth), and other substances that don’t appear on federal schedules, and so are not a controlled substance offense for immigration purposes (e.g., chorionic gonadotropin).

Note that a plea to §§ 11377-79 is a far better choice to than §§ 11350-52 for purposes of this defense, although the Ninth Circuit repeatedly has upheld both.

Ana, an undocumented person, needs to apply for non-LPR cancellation. She was convicted of drug possession under § 11377. If Ana’s entire record of conviction only refers to “a controlled substance” — as opposed to, e.g., “meth” – then under Marinelarena, in immigration proceedings she does not have a controlled substance conviction that will bar eligibility for relief. She can apply for non-LPR cancellation. Before Marinelarena, she would have been ineligible.

Other common divisible statutes are H&S C §§ 11379, 11352, which are divisible between “offering” to sell or distribute (not an aggravated felony within the Ninth Circuit) and sale or distribution (an aggravated felony). Defenders always should plead specifically to “offering,” but if this was not done in a prior case and instead the plea was to all of those verbs, the person can benefit from Marinelarena.

CAUTION: We must conservatively assume that Marinelarena will go to the Supreme Court, due to a circuit split. This decision is great, but we must confront the possibility that the Court would reverse it.

Immigration advocates: We can use Marinelarena immediately and should seek final case decisions as soon as possible. Marinelarena also might be a basis for motion to reopen. But we need to have a strategy in mind in case the Supreme Court overrules it someday – even as early as next spring.

Criminal defenders: We still recommend that defenders do everything possible to get specific good pleas, rather than creating a vague record of conviction, for two reasons. First, it is possible that Marinelarena would be overturned by the Supreme Court. Second, your client might come before an immigration judge who does not know about Marinelarena, or who is in another circuit that does not follow it. Push back against prosecutors who, if they come to understand Marlinelarena, might assert that a vague record is “good enough” in every case. Please contact ILRC if you’d like help with this.

But for now, it is extremely worthwhile to get a vague record of conviction if that is all that can be obtained, including for undocumented clients. When you evaluate prior convictions with vague records, remember that these may be good.

Divisible statutes: For more information about thecategorical approach and divisible statutes, see ILRC, How to Use the Categorical Approach Now at https://www.ilrc.org/sites/default/files/resources/how_to_use_the_categorical_approach_now_april_2017.pdf

Ninth Circuit rules that Pen C § 243(d) is a crime of violence; decision will be contested. United States v. Perez, _F.3d_ (July 11, 2019). See http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/11/17-10216.pdf

The ILRC will soon publish a practice advisory on Perez; check www.ilrc.org/crimes.

Defenders must assume for now that § 243(d) is a “crime of violence.” Therefore a conviction is an aggravated felony if a year is imposed (8 USC 1101(a)(43)(F), and a deportable “crime of domestic violence” regardless of sentence if the victim is protected under state DV laws (8 USC 1227(a)(2)(E)(i)). See further discussion of crimes of violence on the California Chart at endnotes to Pen C § 207.

Immigration advocates should fight this decision, which appears to be based on a misunderstanding of California law. As a federal criminal case, it is being litigated by the Federal Public Defender, who will file a petition for reconsideration and rehearing.

The court’s decision is so clearly incorrect that there is some chance that the panel will reverse it. There is extensive discussion in precedent California cases stating that the minimum conduct required for guilt under Pen C § 243(d) is an offensive touching that is neither likely nor intended to cause an injury, but that still ends up doing so. If that is the case, § 243(d) is not a crime of violence. But the court in Perez stated that these state decisions were mere “legal imagination” that are not authority for the minimum conduct, because the cases they concerned did not involve an offensive touching. That is arguably incorrect.

An even more straightforward error is that the court denied the case on the grounds that the Federal Defender had not submitted any additional cases, besides the seminal cases, to prove the minimum conduct. However, these additional cases where 243(d) was used to prosecute an offensive touching do exist, and they will be submitted to the court. See, e.g., People v. Myers, (1998) 61 Cal. App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured); People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising) (this was Pen C § 243(c)).

The court also cited an opinion holding that Pen C § 243(c)(2) is a crime of violence (U.S. v. Colon-Arreola, 753 F.3d 841 (9th Cir. 2014)) and stated that 243(d) has the same elements. However, the § 243(c)(2) case was wrongly decided and wrongly equated the elements of § 243(c)(2) with the elements of Pen C § 273.5. See further discussion of these issues at pp 4-6 at the 2015 ILRC practice advisory on Johnson at https://www.ilrc.org/sites/default/files/resources/johnson_v_us_ilrc_adv_8_2015_pdf_0.pdf

Pen C § 314 is a crime involving moral turpitude. Betansos v. Barr (9th Cir. July 5, 2019). The Ninth Circuit and BIA had disagreed on this point, and the Ninth Circuit decided to defer to the BIA and withdraw its prior decision.

Ninth Cir. finds that Pen C § 4573.6 is not a controlled substance offense; better plea than Pen C § 4573. These sections both prohibit conduct involving California controlled substances within a jail or similar arena. The Ninth Circuit held that no conviction under PC 4573.6 is an offense relating to a federally-defined controlled substance (CS). United States v. Graves, 925 F.3d 1036 (9th Cir. May 30, 2019). Therefore no conviction is a CS offense for immigration purposes, and 4573.6 is much better than 4573. But Graves does provide arguments that 4573 also is not a CS, which will be addressed in the upcoming July edition of the California Chart. Defenders should plead to Pen C §§ 4573.6, or even better §§ 4573.5 or 4573.8, which involve alcohol and non-controlled substances, rather than to § 4573, wherever possible.

The below information is covered in May 2019 edition of the California Chart, and/or in the cited Practice Advisories.

USCIS cracks down on “legal” use of marijuana. USCIS Policy Manual. This does not appear in the chart. On April 19, 2019, USCIS announced that it had updated its national Policy Manual to emphasize that even in states where this conduct is legal, immigrants can be penalized for admitting use of recreational or medical marijuana, or employment in the legitimate cannabis industry. See amended USCIS Policy Manual, Volume 12, Chapter 5, Part C.2, at https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5 and announcement of the update at US USCIS, Policy Alert: Controlled Substance-Related Activity and Good Moral Character Determinations (April 19, 2019) at https://www.uscis.gov/sites/default/files/policymanual/updates/20190419-ControlledSubstanceViolations.pdf.

The issue is that while marijuana is partially legalized in the majority of states, it remains a federally defined controlled substance. Admission of conduct, or employment in the industry, can make a noncitizen inadmissible and also ineligible to establish good moral character (one of the requirements for naturalization as well as non-LPR cancellation and other forms of relief.

Warn defendants who may have used marijuana to get counseling from immigration agencies before leaving the United States, submitting any applications to DHS, or talking with immigration officials. Or, hand out community flyers available online. For advocacy materials including community alert flyers in English, Spanish, and Chinese, a legal memo entitled Practice Advisory: Immigration Risks of Legalized Marijuana (January 2018), and other materials, go to https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana.

Supreme Court reverses Preap: Mandatory detention applies even if the person did not go directly to ICE from jail. Immigration law provides that certain noncitizens will be detained without possibility of bond. This includes most people who are deportable for crimes (were admitted to the U.S. and come within the crimes deportation grounds, with some exceptions) or inadmissible for crimes (were not admitted to the U.S. and come within the crimes inadmissibility grounds). INA 236(c)(1), 8 USC 1226(c)(1). This does not appear in the chart but see below advisory.

The Ninth Circuit had held that based on the language of the statute, mandatory detention only applied if the noncitizen was taken directly to ICE custody from criminal custody that was based on conviction of one of the triggering offenses. This meant that many people, including people with old deportable or inadmissible convictions, were not subject to mandatory detention. The Supreme Court reversed the Ninth Circuit and thus broadly extended who is subject to mandatory detention. See Nielsen v. Preap (March 19, 2019) at https://www.supremecourt.gov/opinions/18pdf/16-1363_a86c.pdf

For more on mandatory detention, see ILRC, Practice Advisory: How to Avoid Mandatory Detention (May 2018) at https://www.ilrc.org/how-avoid-mandatory-ice-detention. This advisory will be updated soon to reflect the Supreme Court decision in Preap and other developments in mandatory detention litigation.

Ninth Circuit reaffirmed that sentencing enhancements are counted as part of the total sentence imposed. It found that a non-citizen who had been sentenced to four years for a PC § 273.5 conviction, plus an additional one-year enhancement for use of a deadly weapon under PC § 12022.5(b)(1), had been sentenced to a total of five years for an aggravated felony, which made the conviction a per se “particularly serious crime.” See Mairena v. Barr (Mar. 7, 2019) at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/15-72833.pdf

Ninth Circuit adopted a narrower interpretation of “single scheme of criminal conduct” in the context of multiple crimes involving moral turpitude, granting Chevron deference to BIA decisions on the issue. It found that a non-citizen did not qualify for the single scheme exception when over the course of some hours he forced the victims to commit sexual acts, because these were “complete, individual, and distinct crimes.” See Szonyi v. Whitaker (Feb. 13, 2019), and see Judge Fisher’s dissent, at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/13/15-73514.pdf

Ninth Circuit held that the term “crime involving moral turpitude” is not unconstitutionally vague, as per Supreme Court precedent. The concurring opinion by Judge William Fletcher strongly suggested that the Supreme Court should revisit the issue in light of the lack of any “coherent criteria” for determining when a non-fraud offense would be deemed a CIMT. See Islas v. Veloz (Feb. 4, 2019) at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/04/15-73120.pdf

The Ninth Circuit withdrew its decision in Lorenzo v. Sessions, which had held that the California definition of methamphetamine is broader than the federal definition and therefore a conviction under H&S C § 11378 involving meth is not a controlled substance offense. The court issued an unpublished decision with the same result, but this will give ICE the opportunity to argue against the chemical analysis underlying Lorenzo. This makes a plea to meth even less secure. For the published opinion withdrawing Lorenzo v. Sessions, see http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/17/15-70814.pdf. For the unpublished opinion reaffirming that Mr. Lorenzo is not deportable under the controlled substance ground due to how meth is defined, see https://cdn.ca9.uscourts.gov/datastore/memoranda/2019/01/17/15-70814.pdf For the ILRC advisory on the Lorenzo withdrawal, see www.ilrc.org/crimes.

The Supreme Court again addressed the definition of a crime of violence, which could result in DHS charging that Pen C §§ 243(d) or 236/237 by violence is a crime of violence. See Stokeling v. United States (Jan. 15, 2019) at https://www.supremecourt.gov/opinions/18pdf/17-5554_4gdj.pdf. See ILRC Practice Advisory at https://www.ilrc.org/stokeling-v-united-states-supreme-court-defines-%E2%80%9Ccrime-violence%E2%80%9D

A nationwide Temporary Restraining Order enjoins the Trump Administration from restricting asylum grants only to those who enter the U.S. at a port of entry. See East Bay Sanctuary Covenant et al v Trump et al (N.D. Cal Nov. 19, 2018) at https://www.aclu.org/sites/default/files/field_document/tro_granted_-_ebsc_v_trump_0.pdf

Ninth Circuit upheld a district court’s nationwide Temporary Restraining Order that requires DHS to continue to accept DACA renewal applications. Regents of the Univ. of Cal. v. United States Dep’t of Homeland Sec., 908 F.3d 476, 485 (9th Cir. 2018). For more information, see https://www.ilrc.org/preparing-future-understanding-rights-and-options-daca-recipients.

The federal government is enjoined from terminating temporary protected status for Sudan, Haiti, El Salvador, and Nicaragua. Beneficiaries retain lawful status and valid employment authorization documents during the pendency of the proceedings. Ramos v. Nielsen, No. 18-cv-01554-EMC (N.D. Cal. Oct. 3, 2018) See https://www.uscis.gov/sites/default/files/USCIS/Laws/ramos-v-nielsen-order-granting-preliminary-injunction-case-18-cv-01554-emc.pdf

California robbery, Pen C § 211, is an AF as theft, but not as a crime of violence, if a sentence of a year is imposed. Matter of Delgado, 27 I&N Dec. 100 (BIA 2017) (is an AF as theft), US v. Garcia-Lopez (9th Cir. September 2018) (it is not an AF as a crime of violence under 18 USC § 16(a) because it can be force applied by accident).

Nevada drugs are not federal “controlled substances. Because the Nevada controlled substance schedule is overbroad and indivisible, no conviction that references that schedule is a controlled substance offense for immigration purposes. Villavicencio v. Sessions, No. 13-74324 (9th Cir. Sept. 11, 2018).

2019-12-05T16:38:13+00:00Updated July 4th, 2019|