PC 215

PC 215

Offense

Carjacking

Aggravated Felony (AF)

Get 364 or less on each count to avoid AF as COV. See Advice.

Crime Involving Moral Turpitude (CIMT)

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

Other Removal Grounds

Arguably this is not a COV for purposes of the DV deportation ground, but still best to avoid if V and D share a domestic relationship. See Advice.

Advice and Comments

See citations and further discussion of PC 215 as a COV for purposes of the aggravated felony definition, and the crime of domestic violence definition, here.1PC 215 as an AF as theft. See Pen C § 211.

PC 215 as an AF as a COV. DHS might assert that in U.S. v. Baldon, 956 F.3d 1115, 1121 (9th Cir. 2020), the Ninth Circuit effectively held that PC 215 is a COV under 18 USC § 16(a)  —  or in any event, will assert that that is the correct analysis. Their approach is very likely to win, but advocates can explore arguments against it, for example that the Baldon statements are dicta or should be reviewed en banc. As always, at the same time as pursuing such arguments advocates should investigate other defense strategies, including the possibility of post-conviction relief.

In sum: In 2018 the Ninth Circuit held that PC 215 is not a COV under 18 USC § 16(a), because 215 can be committed by using de minimus force. Solorio-Ruiz v. Sessions 881 F.3d 733, 737 (9th Cir. 2018). In 2019, the Supreme Court held that even de minimus force can be a COV, if the offense requires use of that force to overcome the resistance of the victim. Stokeling v. U.S., 139 S.Ct. 544 (2019). In 2020, the Ninth Circuit in U.S. v. Baldon, supra, considered whether Stokeling required a finding that PC 215 actually is a COV because it requires overcoming resistance of the victim. Baldon concerned a definition of COV found at U.S. Sentencing Guideline 4B1.2(a)(1), which is an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another ….” That language tracks the definition used for immigration purposes, at 18 USC 16(a), except that 16(a) includes use of force against person or property. Baldon’s actual ruling looks good: it holds that PC 215 is not a COV under USSG 4B1.2(a)(1). However, it held that only because of the person versus property issue: the USSG section requires violence against a person, while PC 215 is overbroad and indivisible in that it includes violence against person or property. In the discussion in Baldon, the Ninth Circuit stated that PC 215 does meet the definition of “force” set out in Stokeling, and thus that Stokeling had overruled Solorio-Ruiz.

PC 215 as a crime of DV. For what it is worth, even if PC 215 is committed against a victim who has a domestic relationship with the defendant, a conviction should not be held a deportable “crime of domestic violence” under INA 237(a)(2)(E)(i).  Advocates assert that under the plain language of the deportation ground, a crime of DV is a COV that is committed against a person, not against property. (INA 237(a)(2)(A)(i) provides in part: “the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of title 18) against a person …” Arguably, just as Baldon held that PC 215 does not fit the full definition of USSG 4B1.2(a)(1), it should hold that it cannot fit the definition of a deportable “crime of domestic violence.”

To avoid a one-year sentence, see § N.4 Sentence.

2021-05-17T17:08:29+00:00Updated May 17th, 2021|