Offense
Robbery by means of force or fear
Aggravated Felony (AF)
Get 364 or less to avoid AF as theft. Not an AF as a COV.1Robbery under Pen C § 211 has been held an aggravated felony (AF) as theft if a sentence of a year or more is imposed. See Matter of Delgado, 27 I&N Dec. 100 (BIA 2017); United States v. Martinez-Hernandez, 932 F.3d 1198 (9th Cir. 2019), regarding theft under 8 USC 1101(a)(43)(G).
This next section discusses why Pen C § 211 is not a crime of violence (COV). Note that this holding does not prevent § 211 from being an AF if a year is imposed, since it will qualify as an AF as “theft.” But not being a COV will be useful if the theft holding is overruled in the future, or if § 211 is charged as a crime of domestic violence.
The Ninth Circuit held that robbery under § 211 is not a COV under a definition identical to 18 USC § 16(a), because it includes accidental use of force. U.S. v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (conviction of robbery upheld where thief accidentally hit the owner while driving the car away). See also Borden v. U.S., 593 U.S. 420 (2021), where the Supreme Court affirmed that a COV does not include reckless or other unintentional conduct.
See also discussion in Gutierrez v. Garland holding that PC 215, carjacking, is not a COV because the term by “force or fear” is indivisible and “fear” does not necessarily involve any threat or use of force. Gutierrez v. Garland, 106 F.4th 866, 873-878 (9th Cir. 2024), The court also noted that PC 215 and 211 are similarly defined, in that PC 215 “’is a direct offshoot of robbery’ and its statutory language ‘tracks the language in the robbery statute.’” Gutierrez,106 F.4th 876, internal citations omitted. Significantly, Gutierrez held that PC 215 is not a COV within the definition set out in Stokeling v. U.S., 586 U.S. 73 (2019), which held that even minimal force qualifies as a COV if the offense has intent to use force to overcome the will of the victim as an element.
Crime Involving Moral Turpitude (CIMT)
Defenders must assume it is a CIMT.
Imm advocates can consider arguments that it is not a CIMT.2Immigration advocates can consider this untried defense: While traditionally robbery has been held a CIMT, and PC § 211 has been so held, the Ninth Circuit found that Oregon robbery is not a CIMT because it can involve a temporary taking and only a small amount of force. Barbosa v. Barr, 926 F.3d 1053 (9th Cir. 2019). Like Oregon robbery, PC § 211 requires only de minimis force. See, e.g., People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 (robber tapped the victim on the shoulder to distract her and then took money from open cash register); People v. Mullins (2018) 19 Cal.App.5th 594 (robber pushed or nudged victim from in front of an ATM and took money). See finding in U.S. v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) that the use of force for Pen C § 211 can be by accident. However, while Oregon robbery explicitly includes intent to deprive temporarily, which is not a CIMT, California robbery has been held to require intent to deprive permanently, which is a CIMT. Advocates could investigate the possibility that robbery employs the definition of “theft” in PC 484 to describe the taking, and therefore robbery convictions from before Nov. 16, 2016 should not be held CIMTs as theft because the term “intent to deprive permanently” actually includes mere substantial erosion of property rights. See discussion of Silva v. Barr at PC 484, below. As always, while litigating this untried argument, advocates should investigate other defense strategies including the possibility of post-conviction relief.
Other Removal Grounds
Because PC 211 is not a COV,3See U.S. v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (PC 211 is not a COV); Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024), discussed above. it is not a crime of DV.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
Asylum: Even with felony probation and less than a year in custody, this is almost certainly a PSC (Particularly Serious Crime) that blocks asylum and withholding.
Advice and Comments
To avoid an AF, avoid a sentence of a year or more on any single robbery count.
Alternative pleas include:
-If a year or more is needed, consider pleading instead to one or more of 243(a), 487, 459/460 or 236/237, or even 207(a), all of which should be able to take a year or more. (But note that 487 is a CIMT, and also is an AF if the conviction involved both a year sentence and loss to victim/s exceeding $10,000. See PC 487.)
-To avoid a CIMT and COV, take 136.1(b)(1) and/or 496, but both require sentence of less than a year.
-Long sentence: If needed, one can offer felony 236, 459 (1st or 2nd) or 487 for over a year (not an AF) and 136.1(b)(1) or 496 as the subordinate felony (so that they will get an 8-month sentence and avoid an AF). If required, use 422 as the subordinate felony. Or use PC 207(a) as the primary. Note that 487 is a CIMT and 422 is a COV and CIMT, which must be considered in light of D’s situation, but none of the above is an aggravated felony.