February 2021 Case Update
Ninth Circuit denies Rehearing in Velasquez-Rios, Affirms Limit on 364-day Misdemeanors.
Velasquez-Rios v. Wilkinson, No. 18-72990, (9th Cir. Feb. 24, 2021), denying petition for rehearing and reconsideration, and amending opinion, of Velasquez-Rios v. Barr, Desai v. Barr, 979 F.3d 690 (9th Cir. Oct. 28, 2020), which affirmed Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018).
Since January 1, 2015, California Penal Code § 18.5 has provided that no California misdemeanor has a potential sentence of more than 364 days. Effective January 1, 2017, PC § 18.5(a) has provided that this 364-day top applies retroactively to all misdemeanor convictions, including those from before January 1, 2015. However, in the Velasquez-Rios decisions, the BIA and a Ninth Circuit panel found that federal immigration authorities should not give effect to the retroactivity clause in § 18.5(a). Now the Ninth Circuit has denied a petition for rehearing and reconsideration. This means that the final rule is that, for immigration purposes, the 364-day top applies to convictions received on or after January 1, 2015, but not to earlier convictions.:
- If a California misdemeanor conviction occurred on or after January 1, 2015, for immigration purposes it has a potential sentence of 364 days. This never was contested.
- If the misdemeanor conviction occurred before January 1, 2015, for immigration purposes it will be held to have a potential sentence of 365 days, despite § 18.5(a). If a client is at risk due to the pre-2015 misdemeanor, one must try to vacate the conviction for cause under PC § 1473.7 or other vehicle, and replead to a different offense (preferably a non-CIMT).
- If the conviction was a wobbler or a felony that later was declared a misdemeanor under PC § 17(b)(3) or Prop 47, we assume that the BIA will hold that the date of conviction, as opposed to date of redesignation, controls, e.g., assume that the BIA will find that a wobbler conviction from before 2015 that is classed as a misdemeanor after 2015 will have a potential sentence of a year. Note, however, that the DHS in some cases is asserting that immigration law should not give effect to reduction of a felony to a misdemeanor under PC § 17(b)(3), and it is very unlikely to give effect to a reduction pursuant to Prop 47.
Ninth Circuit Finds that Felon in Possession Can be a Particularly Serious Crime
See Bare v. Barr, 975 F.3d 952, 963 (9th Cir. 2020) (IJ was correct that the elements of felon in possession “potentially bring the offense within the ambit of a particularly serious crime.”) .
Ninth Circuit Final Rule: Penal Code § 32, Accessory after the Fact, is Not “Obstruction of Justice”
In an important win for advocates, the Ninth Circuit rejected the government’s petition for rehearing and reconsideration in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1056-58 (9th Cir. 2020) (“Valenzuela Gallardo II”). Therefore the final rule in the Ninth Circuit is that Penal Code § 32 is not an aggravated felony as obstruction of justice even if a sentence of a year or more is imposed.
The substantive issue was whether the generic definition of obstruction requires interference with an already existing proceeding or investigation. If it does require this, as the Ninth Circuit asserts, then PC 32 is not obstruction because it includes, e.g., helping the person avoid an initial arrest before any proceeding or investigation has started. If it does not require an existing proceeding, but only a “reasonably foreseeable” one, as the BIA asserts, then PC 32 is obstruction and is an AF if a year or more is imposed.
This decision may preclude other offenses from being aggravated felonies as obstruction of justice. See Veh C § 10851 (vehicle taking or accessory after the fact) and resisting arrest statutes such as Pen C §§ 69 and 140, which include resisting an initial arrest where there is no pending tribunal. But DHS may continue to argue that Pen. C § 136.1(b)(1), witness dissuasion, is obstruction of justice despite the fact that it involves asking the person not to file a police report, on the grounds that this offense is an analogue to a federal offense that falls within an obstruction of justice category.
Note that Valenzuela-Gallardo should not be attacked on the grounds that the Ninth Circuit should defer to the BIA as to the correct “generic” definition of obstruction of justice under Chevron. Valenzuela Gallardo II noted that there are strong arguments that courts should not defer in a dual application context, under Chevron Step Zero. However, the court found that precedent required it to apply Chevron in this case. It rejected the BIA’s definition under Chevron Step One, finding that there was no ambiguity in the statute, and Congress clearly intended the § 1101(S) definition to require “a nexus to an ongoing or pending proceeding or investigation.” Valenzuela-Gallardo II, 968 F.3d at 1062, and see discussion at 1062-1069. The decision could be overturned if the Supreme Court were to choose a different generic definition of obstruction. Also, a noncitizen whose immigration case originates outside the Ninth Circuit may well be subject to the BIA’s definition, which finds accessory after the fact to be obstruction.