Offense
Carjacking
Aggravated Felony (AF)
Ninth Circuit held it is not an AF as COV or theft.1See Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024) (PC § 215 is overbroad and indivisible as a COV because “fear” can be accomplished without force; in addition, it is a general intent crime where intent is to deprive the victim of a vehicle).
See U.S. v. Orozco-Orozco, 94 F.4th 1118, 1120-21 (9th Cir. 2024) (PC § 215 is not an AF “theft” offense because generic theft requires intent to take property from someone with a superior possessory interest in the property, while California theft is includes taking from someone with an inferior possessory interest or less; it is overbroad and (see fn.7) indivisible). See Advice.
Crime Involving Moral Turpitude (CIMT)
Defenders should assume a CIMT, although the question was remanded to the BIA2See Gutierrez v. Garland, 106 F.4th 866, 877 (9th Cir. 2024), remanding to the BIA the question of whether PC 215 is a CIMT. The BIA had not ruled on the issue in that case. and immigration advocates may argue that it is not.
Other Removal Grounds
Not a deportable crime of DV because it is not a COV.
Advice and Comments
Best practice is to always obtain less than a year. However, under current Ninth Circuit law, PC 215 is not an AF even if a year or more is imposed. Do advise the client not to travel outside Ninth Circuit states without expert immigration consultation, in case other circuit courts of appeals would rule differently.
While 215 is not an AF, it has other disadvantages:
-As a felony CIMT, it does not qualify for the petty offense exception and it triggers other CIMT penalties, including as a bar to non-LPR cancellation. See CIMT Rules.
-It will be a serious negative factor in applications for discretionary immigration status or benefits, or release on bond.
-It is likely a PSC that is a bar to asylum and withholding.
LRA Mandatory Detention: If D was not admitted to the U.S., any conviction or pending charge for this offense could trigger mandatory detention without bond under LRA. See further discussion at Overview: Mandatory Detention. Immigration practitioners should argue that, like VC 10851, PC 215 is not a theft or larceny offense for LRA purposes because it does not have any element of intent to permanently deprive the owner. People v. Ortega (1998) 19 Cal.4th 686, 693 (overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224). However, since this argument will have to be made from immigration detention, defenders should avoid PC 215 for clients subject to the LRA. Try 236/237 or maybe 207. (Note that people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
SB54: Law enforcement is permitted to notify/transfer to ICE indefinitely. See SB 54 advisory at www.ilrc.org/crimes-summaries.