PC 207 (a), (d)

PC 207 (a), (d)



Aggravated Felony (AF)

PC 207(a) and (d) have been held not to be COVs under 18 USC 16(a). But see Advice re the risk posed by Stokeling, and conservatively try to get 364 days or less on each count until there is a precedent decision interpreting it.
See Note: Sentence.

Crime Involving Moral Turpitude (CIMT)

Ninth Cir held that 207(a) is not a CIMT.1The Ninth Circuit held that a conviction for kidnapping under Pen C § 207(a) is not categorically a crime involving moral turpitude because it can be committed with good or innocent intent when the defendant uses verbal orders to move a person, who obeys for fear of harm or injury if they don’t comply. See Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. 2013). Section 207(e) also includes very minor conduct.

Other Removal Grounds

If it is not a COV, it is not a deportable crime of DV. But see Advice. If it is critical to avoid deportability, consider non-COV offenses such as e.g., PC 32, 243(e), 136.1(b)(1), 459/460(a) or (b), 487, probably 236/237, etc.
Child abuse: Because 207(a), (e) can be committed by simply moving an unresisting minor in violation of law, without risking harm, it should not be held abuse.

Advice and Comments

COV. For citations and further discussion of Dimaya, Stokeling, Borden, and the definition of COV in general, see this endnote.2Definition of a crime of violence. For immigration purposes, a crime of violence (COV) is currently defined at 18 USC § 16(a), which provides: “The term ‘crime of violence’ means—(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another.” “Force” has been interpreted to mean violent, aggressive, physical force. It has been held to exclude offenses that can be violated by an offensive touching—for example, Pen C § 243(e)), negligent conduct (e.g., DUI or DUI with injury, absent a special intent requirement), and recklessness (although ICE might assert that recklessness now should be included; see Voisine, below). But in Stokeling, discussed below, the Court held that if overcoming the resistance of the victim is an element of the offense, as in some robbery statutes, even a minor use of force can qualify.

Dimaya and 18 USC § 16(b). 18 USC § 16 has two parts: § 16(a) and § 16(b). In 2018, the Supreme Court held 18 USC § 16(b) is unconstitutionally vague and can no longer be used. Sessions v. Dimaya, 138 S. Ct. 1204 (2018), upholding Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). Section 16(b) states that a felony offense is a COV if “by its nature” it involves a “substantial risk” that violence could be used (often, based on what judges thought might happen in an “ordinary case”). With § 16(b) gone, some felony offenses that used to be classed as COVs no longer are. This includes offenses such as felony Pen C §§ 207(a), 243.4, 460(a), 33215 and others, and it bolsters existing arguments that offenses such as Pen C §§ 236/237(a) and 243(d) are not COVs. See also Pen C 136.1(b)(1), 243(e), 460(b), and see discussion of crimes of DV at Pen C § 245 in the chart.

For a more extensive discussion of how these and other California offenses are changed by Dimaya, see this advisory (written before Dimaya, but analyzing what would happen if § 16(b) were to be struck down): ILRC, Practice Advisory: Some Felonies Should No Longer Be Crimes of Violence for Immigration Purposes under Johnson v. United States (2015), available at www.ilrc.org/crimes.

For a discussion of the Dimaya decision, including how to assist people whose conviction no longer are classed as COVs, see NIPNLG and IDP, Sessions v. Dimaya: Supreme Court strikes down 18 USC § 16(b) as void for vagueness (2018), available at http://nipnlg.org/practice.html.

For a discussion of COVs and the domestic violence deportation grounds, see ILRC, Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes.

Stokeling and overcoming the victim’s will. The Supreme Court revisited the definition of conviction in Stokeling v. U.S., 139 S.Ct. 544 (2019). The 5/4 majority found that Florida robbery is a crime of violence (COV) under the ACCA, because “overcoming the resistance of the victim” in a robbery involves a confrontation that is inherently violent, even though it can be committed using a very small amount of force. “For example, a defendant who grabs the victim’s fingers and peels them back to steal money commits robbery in Florida. But a defendant who merely snatches money from the victim’s hand and runs away has not committed robbery.” The majority found that the first example is a COV, due to the (minor) force used and the nature of the confrontation, while the second is not.

The majority specifically distinguished this type of “overcome the resistance of the victim” offense from offenses such as battery. It stated that Stokeling is consistent, and not in conflict, with Johnson v. United States, 559 U. S. 133 (2010), where the Court had held that battery committed with de minimus force is not a crime of violence. “The nominal contact that Johnson addressed involved physical force that is different in kind from the violent force necessary to overcome resistance by a victim. The force necessary for misdemeanor battery does not require resistance or even physical aversion on the part of the victim; the “unwanted” nature of the physical contact itself suffices to render it unlawful.” Stokeling at 553.

Based on Stokeling, California robbery, Pen C § 211, will likely be charged as a COV. No conviction of Pen C § 236/237 ought to be a crime of violence: the minimum conduct required to commit felony false imprisonment by force, taken alone, might be found a crime of violence, but the offense is indivisible between force and the other means: menace (which can be committed by non-violent threat of arrest), deceit, and fraud. The latter three means are not crimes of violence. Likewise, kidnapping under Pen C § 207(a), felony false imprisonment under §§ 236/237, and sexual battery under § 243.4 can be committed by threat of arrest rather than threat of force. But until there is precedent holding that these offenses are not COVs under Stokeling, ICE might charge them as COVs, so best practice is to get 364 days or less where possible. See discussion at endnotes to each of these offenses. (Pen C § 207 is discussed in the next endnote.)

Borden (formerly Walker), Voisine, and Recklessness. Courts have long held that an offense with an element of recklessness is not a crime of violence, but this could change as the Supreme Court takes up the issue in Borden v. United States (19-5410). (The issue had been presented in Walker v. United States, No. 19-373, but the case was withdrawn after Mr. Walker’s death.) The Court will hear argument in November 2020. If it finds that reckless conduct can be a COV, then California offenses such as Pen C § 192(a) or § 246 could be affected. Earlier the Court held that recklessness could be an element of a different federal definition, for a federal crime of domestic violence, but it had specifically stated that this offense was not the same as 18 USC § 16. See discussion of Voisine v. United States, 136 S.Ct. 2272 (2016), in NIPNLG/IDP, Practice Alert: Voisine v. United States (2016), available at http://nipnlg.org/practice.html.

For citations and further discussion of PC 207 as a COV, see this endnote.3Pen C § 207 as a COV. The Ninth Circuit held that Pen C § 207(a) is not a crime of violence (COV) under 18 USC § 16(a) because it lacks as an element the use of violent force and can be committed by “any means of instilling fear,” including means other than force. Delgado Hernandez v. Holder, 697 F.3d 1125, 1127 (9th Cir. 2012). The court also cited precedent holding that kidnapping by fraud under § 207(d) does not meet the § 16(a) definition. See United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993), considering a federal standard identical to 18 USC § 16(a), cited at Delgado-Hernandez, 697 F.3d at 1128. The Supreme Court struck down the definition of a COV under 18 USC § 16(b). See discussion of Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in above endnote.

Arguably Pen C § 207(a) is not a COV under Stokeling v. U.S., 139 S.Ct. 544 (2019), discussed in the above endnote. Stokeling held that, due to the nature of the confrontation, use of even minor force to overcome the will of the victim in a robbery is a COV. Kidnapping can involve overcoming the will of the victim, but California kidnapping can be committed by threat of conduct that involves no force or threat of force, for example the threat of arrest. See, e.g., People v. Majors (2004) 33 Cal.4th 321 (threat of arrest satisfies force or fear requirement for kidnapping). See further discussion of Pen C § 207(a) kidnapping and 18 USC § 16(a) (written before Stokeling) in ILRC, Crimes of Violence and Johnson v. United States (August 2016) at www.ilrc.org/crimes.

A COV is defined in 18 USC 16(a) only, because the Supreme Court struck down 16(b) in Dimaya. Under 16(a), a COV must have as an element the use, threat, or attempt to use force, interpreted as violent, intentional force. The Ninth Circuit held that PC 207(a) and (d) do not meet this definition.

But in Stokeling (2019), the Supreme Court held that robbery is a COV if it has as an element the use of even minor force to “overcome the will of the victim,” because that confrontation is inherently violent. ICE might charge 207(a) as a COV under Stokeling. Because 207(a) can be committed by the threat of arrest, which involves no use or threat of force, imm advocates have a strong argument that it is not a COV under Stokeling. But this has not yet been litigated, so the best practice is to avoid the risk by getting 364 days or less on each count. (Note that Stokeling stated it does not change the COV analysis of assault and battery, so the analysis of 243 and similar offenses should not change.)

The Supreme Court will consider whether reckless conduct is a COV, in Borden v. United States (19-5410). That might make, e.g., PC 246, 192(a), or VC 23104, 23105, etc. an AF if a year or more is imposed.

If one year or more on a single count can’t be avoided, safer offenses include, e.g., 459 (res or commercial), 487, 591, 594, or a 364-day sentence on 243(e). 243(d) has been held a COV and cannot take a year.

Adam Walsh Act. Conviction of kidnapping a minor other than by a parent triggers Adam Walsh Act, which can block an LPR or USC from immigrating family members. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

2021-05-17T15:52:38+00:00Updated May 17th, 2021|