Unpublished BIA Decision Indicates Some Pushback to Cal. P.C. § 1203.43 Vacaturs (Though Other BIA Panels Have Fully Honored P.C. § 1203.43)
The BIA issued an unpublished decision about Cal. P.C. § 1203.43 after an amicus invitation and oral argument. The ILRC filed an amicus brief (thanks to Prof. Jennifer Koh) and Kathy Brady argued the case. The good news is that the decision does not say that § 1203.43 vacaturs are ineffective for Pickering purposes. The bad news is that it establishes that, if the respondent is seeking relief, the respondent needs to prove that they were misinformed of the immigration consequences of the DEJ guilty plea. The short summary is that the decision says that the legal invalidity question needs to be decided on a case by case approach. Of course, there are other unpublished BIA decisions holding that § 1203.43 meets Pickering (see exhibits to amicus brief). But for now, other forms of vacaturs may be more air tight. ILRC will put out a practice advisory soon, but include our current recommendations below.
- In immigration proceedings, the respondent should submit a declaration or testimony to the Immigration Court (or USCIS or DOS) that 1) they were told prior to the plea of guilty that it would not be a conviction for any purpose if there was successful completion of Deferred Entry of Judgment, and 2) that their attorney did not tell them otherwise, and 3) they did not know that it would still be a conviction for immigration purposes.
- In post-conviction proceedings, it is safest to file a P.C. § 1473.7 motion to vacate under P.C. § 1473.7(e)(2): “There is a presumption of legal invalidity for the purposes of paragraph (1) of subdivision (a) if the moving party pleaded guilty or nolo contendere pursuant to a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, where the moving party complied with these requirements, and where the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences.”
Ninth Circuit Holding on Cal. P.C. § 32: Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020)
There is an aggravated felony ground for an “offense relating to obstruction of justice” where the imposed term of imprisonment is at least one year. See INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S). In a published opinion, the Ninth Circuit held that conviction under Cal. P.C. § 32, accessory after the fact is broader than this ground and categorically not for an obstruction of justice aggravated felony. There remains a possibility that the federal government will petition the Ninth Circuit to rehear this issue en banc. Therefore, criminal defense counsel representing noncitizens considering guilty pleas under P.C. § 32 should assume that such a conviction with an imposed sentence of one year or longer may later be treated in immigration proceedings as an aggravated felony, should the Ninth Circuit reverse the panel’s decision in this case or should the removal proceedings take place outside of the Ninth Circuit.
A.G. Barr’s Decision in Matter of Reyes Should Have Limited Impact, but Defenders Should Nonetheless Be Mindful of Its Holding When Doing Padilla Advisals or Representing Noncitizens in Immigration Proceedings
A.G. Barr issued a new categorical approach decision in a case where a noncitizen had been convicted of a state larceny statute where all conduct criminalized was either generic fraud or generic theft (as those terms are used in the aggravated felony statute). Under Mathis and the governing state law, the conviction is indivisible between theft and fraud. The individual noncitizen in Reyes had been sentenced to over a year in prison, and the established loss amount was over $10,000. The AG found that in such a circumstance, the conviction is for an aggravated felony, because the full range of means of commission are for aggravated felony conduct even though immigration authorities would not be able to identify which conduct the individual was convicted of. ILRC, IDP, and NIPNLG have published a practice advisory on the Reyes decision: https://www.ilrc.org/practice-alert-matter-reyes-28-dec-52-ag-2020.
Ninth Circuit holds California Definition of Methamphetamine is Same as Federal Definition
U.S. v. Rodriguez Gamboa, — F.3d —, 2020 WL 5050366 (9th Cir. 2020)
After several years of litigation, the Ninth Circuit held in a published opinion that California’s definition of “methamphetamine” is not broader than the federal definition of “methamphetamine.” Ms. Rodriguez Gamboa argued that California’s definition of methamphetamine includes both geometric and optical isomers of methamphetamine, while the federal definition includes only optical isomers. She argued that, as a result, California’s definition is categorically broader than the federal definition. The Ninth Circuit rejected this argument, finding there is no realistic probability of prosecution for a geometric isomer of methamphetamine.