PC 215

PC 215

Offense

Carjacking

Aggravated Felony (AF)

Get 364 or less on each count.

Crime Involving Moral Turpitude (CIMT)

Conservatively assume a CIMT, although imm advocates may argue that it is not.

Other Removal Grounds

Do not plead to this offense if V and D share a domestic relationship, because it might now be charged as a COV under Stokeling.1Regarding theft, see Pen C § 211. Regarding COV, Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), held that Pen C § 215 is not a COV under 18 USC § 16(a), because a person need not use more force than that required to move the vehicle. Because the BIA did not rule on the immigration judge’s alternative holding that the offense is an aggravated felony as “theft,” the court did not address this question, but remanded to the BIA for it to consider the issue in the first instance. It is possible that the government will bring the COV issue up again in light of the Supreme Court opinion in Stokeling v. U.S., 139 S.Ct. 544 (2019). The majority in Stokeling held that a Florida robbery offense is a COV because by its nature, the confrontation required to “overcome the resistance of the victim” is inherently violent, even if the force used to do that is de minimus. Immigration counsel can examine arguments that Pen C 215 does not require overcoming the will of the victim by force. See, e.g., discussion of People v. Hudson, 11 Cal. App. 5th 831 (Ct. App. 2017) (carjacking was accomplished when defendant drove the car off of a car lot, despite the owner running after him and pounding on the car) in Solorio-Ruiz v. Sessions, 881 F.3d at 737.

Advice and Comments

Although Ninth Cir held not an AF as COV, the BIA will likely rule it is an AF at least as theft, so avoid 1 yr or more. See § N.4 Sentence.

2020-05-19T17:06:07+00:00Updated January 29th, 2020|