Ninth Circuit holds that Penal Code §451, arson, is not a categorical match to its federal counterpart, 8 USC Section 844(i), in Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022).The Court found that although both the federal and state statutes require the defendant to act “maliciously,” the court explained that California courts have interpreted that term in § 451 to criminalize a broader range of conduct than § 844(i) does. To be convicted under the federal statute, a defendant need not have intended to damage or destroy property covered by the statute, but he must at least have engaged in an intentional act that resulted in damage to or destruction of such property, and in doing so, must have been subjectively aware of the risk that his actions would result in that harm. By contrast, a defendant may be convicted under the California statute for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm. Thus, the panel concluded that the California statute is not a categorical match to its federal counterpart and cannot be a deportable aggravated felony.
The Court may take this en banc so best practice is to continue to plead to charges listed in the chart in lieu of arson.
The California Court of appeals finds that persons charged with a DUI are excluded from pretrial diversion under Penal Code § 1001.95. In Grassi v. Superior Court of Orange, 73 Cal.App.5th 283, 288 Cal.Rptr.3d 385 (2021), the Court concluded that the prohibition of pretrial diversion for DUIs in Vehicle Code § 23640 supersedes Penal Code §1001.95 pretrial diversion for misdemeanors. Grassi bars pretrial diversion for DUI offenses. Defenders can ask courts to consider Penal Code § 1001.83, primary caregiver diversion, as an alternative to PC 1001.95.
Ninth Circuit finds that Penal Code § 273(a)(a) does not constitute crime of child abuse. In Diaz-Rodriguez v. Garland, 12 F.4th 1126 (9th Cir. 2021) the Court held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). The Court reasoned that because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, it is overbroad and it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).
Good news — the Ninth Circuit affirms that California Vehicle Code § 10851(a) is indivisible and overbroad from the generic theft definition, and therefore can never serve as a predicate aggravated felony theft offense. Lopez-Marroquin v. Garland, 9 F.4th 1067(9th Cir. 2021), overruling Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013), on the ground that it was irreconcilable with Mathis v. United States, 136 S. Ct. 2243 (2016).
In Lopez-Marroquin, the Ninth Circuit found that Vehicle Code § 10851(a) is indivisible in its treatment of accessories after the fact, and therefore, overbroad from the federal generic theft definition in8 U.S.C. § 1101(a)(43)(G).The Court applied the framework the Supreme Court provided in Mathis to determine whether 10851 is a divisible or indivisible statute. The Court overruled Duenas v. Alvarez, which held – three years before Mathis – that § 10851(a) was divisible as between principals and accessories after the fact solely based on the disjunctive phrasing of the statute. The Court reasoned that Duenas Alvarez was irreconcilable with Mathis, which instructs courts not to assume that a statute lists alternative elements and defines multiple crimes simply because it contains a disjunctive list.
In Borden, the Supreme Court held that reckless conduct is not a crime of violence. A “crime of violence” as defined in 18 USC 16(a) is an aggravated felony if a year or more sentence is imposed (8 USC § 1101(a)(43)(F)) and is a deportable “crime of domestic violence” if the defendant and victim are proved to share a qualifying domestic relationship (8 USC 1227(a)(2)(E)(i)). Here the Supreme Court considered a federal sentencing enhancement that uses a definition of “crime of violence” that is identical to the immigration definition at 18 USC § 16(a). It found that a crime of violence does not include reckless conduct; it requires intentional conduct. See Borden v. United States, 140 S.Ct. 2666 (2021) at https://www.supremecourt.gov/opinions/20pdf/19-5410_8nj9.pdf.
This is good news, although it affects just a limited number of California offenses. It confirms that the following offenses are not crimes of violence: Penal Code §§ 246, 192(a), and Vehicle Code §§ 23103-5, 23103.5 Moreover, several other states, including Texas and Arizona, include reckless conduct in their definition of assault or other offenses, and Borden may prevent these very commonly charged offenses from being an aggravated felony or crime of domestic violence. When analyzing an out of state conviction, see if the offense involves recklessness. If it does, be aware that Borden may have abrogated prior bad precedent finding it a crime of violence. For further discussion of Borden, see practice advisory at https://www.nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/crim/2021_22Jun_borden-pa-w-appendix.pdf.
An offense with an element of recklessness can be held a crime involving moral turpitude if it has as an element a conscious disregard of a known, imminent risk of death or serious injury, including if the disregard is caused by voluntary intoxication.
Ninth Circuit affirms that the 30 grams of marijuana is a factual question; relies on police report, in Bogle v. Garland, –F.3d—(9th Cir. June 23, 2021)A qualifying conviction of a controlled substance offense can make a noncitizen deportable and inadmissible. There is an exception to the deportation ground for conviction/s arising from a single incident that involved possession of 30 grams or less of marijuana. This also is not a bar to establishing good moral character. However, conviction or admission of the offense does trigger inadmissibility under the controlled substance bar (although in some cases a waiver under 8 USC 1181(h) may be available), and it is a bar to non-LPR cancellation. The BIA has held that the amount of marijuana in a conviction is not controlled by the categorical approach, but is a factual question that is circumstance specific.
In Bogle v. Garland, the Ninth Circuit upheld the use of the circumstance specific offense for 30 gram marijuana determinations. More disturbingly, in a hotly contested factual situation the Ninth Circuit relied on the police report, because it was “detailed” and “internally consistent,” on the amount. That may become a larger issue in general, especially since the majority of the Supreme Court in Pereida v. Wilkinson indicated that even in the modified categorical approach, documents from outside the Shepard “reviewable record of conviction” might be used.
For more on marijuana and immigrants, see ILRC, Practice Advisory: Immigrants and Marijuana (May 2021) and other materials at https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana
California appeals court holds a plea bargain is void with a “false” factual basis, in People v. Richardson, A157529; June 10, 2021; C/A 1st, Div. 3. In this case, the charges were for human trafficking, robbery, pimping, and pandering. In order to get a 5-year sentence, the prosecution allowed the defendant to plead to human trafficking of a minor, although it was clear that the person being trafficked was an adult. The defense counsel said there was a factual basis, and the judge relied on that, although at some point the DA admitted the case did not involve a minor. Then the defendant appealed and the court of appeals voided the plea and stated that “in this case the negotiated plea was no more valid than a no contest plea to murder where the victim is still alive.” It found that the case was a legal impossibility, the prosecution should not have offered it, and the trial court should not have accepted it.
Although this case involved a actual and specific false factual basis, the concern is that some prosecutors may cite it as authority to deny plea offers for immigration-neutral offenses that are not a legal impossibility, although that are vaguer and more encompassing than the original charge. For example, one might try to avoid a plea to bank fraud by pleading to commercial burglary, as a permissive entry into the bank with intent to commit a crime. Defenders should assert the difference, and challenge prosecutors to provide authority for the rule that the most specific charge must be pled to. Because we may see resistance to appropriate immigration plea offers based on this case, some offices are urging that Richardson be depublished.
BIA finds that SIJS applicant can waive an adult conviction for simple possession of 30 grams or less with the SIJS inadmissibility waiver, in Matter of Moradel, 28 I&N Dec. 310 (BIA 2021). The BIA found that an applicant for SIJS, who during the waiting period had become an adult and received an adult marijuana conviction, could use the INA § 245(h)(2)(B) waiver of inadmissibility to waive the conviction, despite the confusing language of that statutory waiver. While the 30-gram waiver language appeared at the end of a list of inadmissibility grounds, immediately before the trafficking ground (to which the waiver would not apply), the BIA found that it applied to all the preceding grounds including the ground based on admission or conviction of a controlled substance, to which the waiver does apply.
Attorney General Garland restores domestic violence and gang violence as potential bases for asylum. The BIA had recognized that in some cases these victims are part of a particular social group qualifying for asylum. Under the Trump Administration, those BIA cases were overturned and those bases for asylum were disallowed. Now the situation is reversed and the older, beneficial BIA cases are back in effect, pending further regulation. See Matter of A-B-, 28 I&N Dec. 307 (AG 2021) (domestic violence) and Matter of L-E-A-, 28 I&N Dec. 304 (AG 2021). This means that more of our clients may have viable asylum or withholding cases.
BIA reaffirms that a single offense that has as an element driving under the influence while knowingly on a suspended license is a crime involving moral turpitude. Matter of Vucetic, 28 I&N Dec. 276 (BIA 2021). Fortunately, California does not have a single offense that combines those elements and so is not affected by this case, although it has multiple offenses that ever the elements. The BIA has held that two separate non-CIMT offenses (e.g., a DUI plus a driving with a suspended license) cannot be combined to create a CIMT.
BIA reaffirms that California Penal Code 245(a)(4) is categorical CIMT, in Matter of Aguilar-Mendez, 28 I&N Dec. 262 (BIA 2021). It followed Matter of Wu, 27 I&N Dec. 8 (BIA 2017).