Ninth Circuit Holds Cal. P.C. § 484 Is CIMT, but Indicates Strong Possibility of En Banc Rehearing
Silva v. Barr, No. 16-70130/17-73272 (9th Cir. 2020)
In Silva v. Barr, No. 16-70130/73272 (9th Cir. 2020), a panel of the Ninth Circuit reaffirmed in another published opinion that conviction under Cal. P.C. § 484 is categorically a CIMT. But wait! The panel explained that they only ruled this way because they felt bound by existing Ninth Circuit precedent, but that if they were “writing on a clean slate” they would have found that P.C. § 484 does not require an intent to permanently deprive an owner of property and thus is categorically not a CIMT. This indicates a stronger than normal possibility that the court will vote to rehear this issue en banc, if Mr. Silva files a petition for rehearing en banc.
In a series of opinions starting in the 90s, panels of the Ninth Circuit held and reaffirmed that P.C. § 484 is categorically a CIMT. At the same time, there were decisions from the California appellate courts revealing that P.C. § 484 can be violated without an intent to permanently deprive an owner of property. For convictions that pre-date the BIA’s November 2016 decision in Matter of Diaz-Lizarraga, theft offenses that cover temporary takings are not CIMTs. The panel in Silva held that a proper comparison between the elements of P.C. § 484 and the generic definition of a CIMT theft offense from pre-2016 would compel the conclusion that the conviction is categorically not a CIMT.
The panel even specifically mentioned that only an en banc rehearing would give them opportunity to issue a correct opinion in this case. There the decision discusses in detail the legal standards for when a panel of the Ninth Circuit can reverse a decision of a prior panel.
Hats off to Franciso Ugarte and the San Franciso Public Defender office for their representation of Mr. Silva!
Ninth Circuit Holds in Published Opinion That Cal. H.S.C. § 11550(a) Is Divisible as to Controlled Substance
Tejeda v. Barr, No. 13-74391 (9th Cir. 2020)
In Tejeda v. Barr, No. 13-74391 (9th Cir. 2020), the Ninth Circuit held in a published opinion that Cal. H.S.C. § 11550(a), conviction for using or being under the influence of a “controlled substance” (as defined under specified sections of California law), is overbroad and divisible as to the substance involved in an individual’s conviction. The panel then applied the modified categorical approach to Mr. Tejeda’s conviction and found that the reviewable “record of conviction” established conviction for a federally controlled substance and that his conviction fell within the deportability ground at INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). In Mr. Tejeda’s case, the “record of conviction” consisted of his plea agreement, charging document, and minute order.
The panel rejected a secondary argument that Mr. Tejeda raised, finding that the actus reus of Cal. H.S.C. § 11550(a) is not relevant to the question of whether the conviction triggers the controlled substance deportability ground at INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). This stands in contrast to the drug trafficking aggravated felony ground at INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), where the actus reus is relevant as to whether a conviction is an aggravated felony.
Finally, the panel’s opinion reaffirms that Cal. H.S.C. §§ 11550(a) and 11352 are overbroad as to substance, criminalizing more substances than the federal controlled substance schedules.