© 2017 Law Offices of Norton Tooby

Crimes & Immigration

Premium Newsletter

January, 2017

Dear Premium Subscriber, This monthly update is a feature of our Premium Resources Subscription. It contains recent developments relating to all of our six Practice Manuals, valuable articles on topical issues of importance to criminal immigration law, and practice advisories. For more information on how these updates are sorted, or to view archives of these updates, please sign in to your account. Andrew J. Phillips, Esq. Editor __________________________________________

INSIDE

Resources ...................................................................... 1 Practice Advisories ................................................... 2 BIA .................................................................................... 3 First Circuit ................................................................... 3 Third Circuit ................................................................. 5 Fourth Circuit .............................................................. 5 Fifth Circuit ................................................................... 7 Sixth Circuit .................................................................. 8 Ninth Circuit ................................................................. 8 Thanks to Douglas Feinberg .............................. 13 Upcoming Seminars ............................................... 13

RECENT DEVELOPMENTS

Resources

EXECUTIVE ORDERS RELATING TO IMMIGRATION

The new Administration has so far announced three Executive Orders in the past week that impact immigrants and refugees. The interior enforcement order includes plans to arrest and detain more people, hire more immigration enforcement officers, enlist state and local enforcement agencies, and punish localities that don't cooperate with immigration enforcement. The border security order includes plans to build a border wall and detention centers, hire additional enforcement officers, and remove more people more quickly. Finally, the order to ban entry includes temporary bans on nationals from seven Muslim-majority countries and refugees from around the world, and an indefinite ban on Syrian refugees. Advocates are organizing, litigating, monitoring compliance with court orders, and creating training and public education materials. We want to alert you to resources on the Executive Orders, available through the Immigration Advocates Network (IAN), our partners, and other advocates. Additional resources on the Executive Orders and the response, including the text of the orders and documents to help monitor compliance with the district court orders, are available at https://www.immigrationadvocates.org/non

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profit/library/folder.630302-Executive_Orders_and_Response_2017. National Immigration Forum (NIF) The NIF summarizes the three executive orders at:

http://immigrationforum.org/blog/president-trumps-executive-order-on-interior-enforcement-summary/ (interior enforcement);

http://immigrationforum.org/blog/president-trumps-executive-order-on-border-security-summary/ (border security); and

http://immigrationforum.org/blog/president-trumps-executive-order-restricting-refugee-resettlement-and-visa-processing-summary/ (entry bans). CD4:15.8

RESOURCES – INDEX OF UNPUBLISHED BIA DECISIONS

The Immigrant & Refugee Appellate Center, LLC, has released the 2017 edition of its Index of Unpublished BIA Decisions. The Index contains links to more than 1,500 unpublished decisions selected for their potential to assist noncitizens in removal proceedings. Subscribers receive updates each month with the latest decisions, as well as a discount on IRAC's same-day BIA filing service. For individual purchasers, the cost of the Index is $75. If you would like to purchase the Index, please email Ben Winograd at bwinograd@irac.net and he will send you an invoice that can be paid online. Group pricing is also available for firms, clinics, and non-profit organizations. To preview the Index and see a list of FAQs, visit http://www.irac.net/unpublished/index/. Thanks to Ben Winograd

Practice Advisories

IMMIGRATION EXECUTIVE ORDER – ENFORCEMENT PRIORITIES

Sec. 5 of the Executive Order regarding Enforcement Priorities states:

“In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who: (a) Have been convicted of any criminal offense; (b) Have been charged with any criminal offense, where such charge has not been resolved; (c) Have committed acts that constitute a chargeable criminal offense; (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e) Have abused any program related to receipt of public benefits; (f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

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https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united

CD4:15.8

BIA

AGGRAVATED FELONY – CRIME OF VIOLENCE – MAYHEM

Matter of Kim, 26 I&N Dec. 912 (BIA Jan. 31, 2017) (California conviction of mayhem, in violation of Penal Code § 203, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. § 16(a)).

CD4:19.38;AF:5.20, A.14, B.9

AGGRAVATED FELONY – PERJURY – DEFINITION

Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016) (California conviction of perjury, under Penal Code § 118, was an offense “relating to” the generic definition of perjury, even though it covered both oral and written statements; for aggravated felony purposes, perjury “requires that an offender make a material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.”)

Note: The BIA here altered the definition of “perjury,” rejecting its prior holding in Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001), that simply relied on 18 U.S.C. § 1621: “[T]he generic definition of the term ‘perjury’ . . . requires than an offender make a

material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.”

CD4:19.81;AF:5.64, A.32, B.49;SH:7.90

CONVICTION – ADAM WALSH ACT – STATUTORY DEFINITION OF “CONVICTION”

Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017) (for purposes of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, and INA § 204(a)(1)(A)(viii)(I), 8 U.S.C. § 1154(a)(1)(A)(viii)(I), the definition of “conviction” is INA § 101(a)(48), 8 U.S.C. § 1101(a)(48)).

CD4:7.6

First Circuit

CONTROLLED SUBSTANCES OFFENSE – FEDERALLY LISTED CONTROLLED SUBSTANCE

Swaby v. Yates, ___ F.3d ___, (1st Cir. Jan. 30, 2017) (Rhode Island conviction of manufacturing, delivering, or possessing with intent to distribute a controlled substance, in violation of Rhode Island General Laws § 21-28-4.01(a)(4)(i), did not constitute a controlled substances conviction, for immigration purposes, since the Rhode Island drug schedules “included at the relevant time at least one drug – thenylfentanyl – not listed on the federal drug schedules); compare R.I. Gen. Laws § 21-28-2.08(e)(13), with 21 C.F.R. § 1308.11-1308.15.

CD4:21.34, 19.62;AF:5.44;SH:7.144, 7.69;

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CONVICTION – NATURE OF CONVICTION – CATEGORICAL ANALYSIS – REALISTIC PROBABILITY

Swaby v. Yates, ___ F.3d ___ (1st Cir. Jan. 30, 2017) (where Rhode Island controlled substances definition clearly listed at least one substance that was not listed on the federal list, the realistic probability of prosecution issue has no relevance).

The Court stated: “Duenas-Alvarez made no reference to the state's enforcement practices. It discussed only how broadly the state criminal statute applied. In doing so, Duenas-Alvarez does make clear that to find that a state statute proscribes a broader range of conduct than a federal crime ‘requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the federal definition of the crime. Duenas-Alvarez, 549 U.S. at 193. But, that sensible caution against crediting speculative assertions regarding the potentially sweeping scope of ambiguous state law crimes has no relevance to a case like this. The state crime at issue clearly does apply more broadly than the federally defined offense. Nothing in Duenas-Alvarez, therefore, indicates that this state law crime may be treated as if it is narrower than it plainly is. Nor are we aware of any circuit court case, whether from this circuit or from any other, that supports the BIA's surprising view that, in applying the categorical approach, state law crimes should not be given their plain meaning.” Swaby v. Yates, supra, ___ F.3d at ___.

CD4:16.6;AF:4.7;CMT3:6.6

CONVICTION – NATURE OF CONVICTION – CATEGORICAL ANALYSIS – DIVISIBLE STATUTES – ELEMENTS AS DETERMINED BY STATE CASE LAW

United States v. Tavares, 843 F.3d 1, 15 (1st Cir. 2016) (Massachusetts conviction for assault and battery with a dangerous weapon, in violation of Mass. Gen. Laws ch. 265, § 15A(b), is under a divisible statute, despite state appellate court decisions indicating that the Massachusetts courts do not require jury unanimity on the subdivision violated, since the Massachusetts Supreme Court would likely disagree with these appellate court decisions; “We are not bound by a decision of a state intermediate appellate court, though such a decision “generally constitutes a reliable piece of evidence” concerning a state-law question. Noviello v. City of Boston, 398 F.3d 76, 91 (1st Cir. 2005). Where, as here, the state's highest court—the Supreme Judicial Court —“has not spoken directly to an issue, [we] must make an informed prophecy as to the state court's likely stance.” Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).”).

CD4:16.6;CMT3:6.5;AF:4.5

JUDICIAL REVIEW – CONVICTION – CATEGORICAL ANALYSIS – STATE APPELLATE COURT DECISIONS

United States v. Tavares, 843 F.3d 1, 15 (1st Cir. 2016) (“We are not bound by a decision of a state intermediate appellate court, though such a decision “generally constitutes a reliable piece of evidence” concerning a state-law question. Noviello v. City of Boston, 398 F.3d 76, 91 (1st Cir. 2005). Where, as here, the state's highest court—the Supreme Judicial Court —“has not spoken directly to an issue, [we] must make an informed

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prophecy as to the state court's likely stance.” Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).”).

CD4:15.37;AF:2.19;CMT3:3.18

AGGRAVATED FELONY – CRIME OF VIOLENCE – RESISTING ARREST

United States v. Tavares, 843 F.3d 1 (1st Cir. 2016) (Massachusetts conviction for resisting arrest under Mass. Gen. Laws ch. 268, § 32B(a)(1) [using or threatening to use physical force or violence against the police officer or another] is categorically a crime of violence under the residual clause of U.S.S. G. § 4B1.2(a); a conviction under Mass. Gen. Laws ch. 268, § 32B(a)(2) [using any other means which creates a substantial risk of causing bodily injury to such police officer or another], is not a categorical crime of violence since that subsection does not require use of force, and the “substantial risk” portion of the crime of violence definition has been ruled unconstitutional), reaffirming United States v. Weekes, 611 F.3d 68, 72–73 (1st Cir. 2010), cert. denied 564 U.S. 1021, 131 S.Ct. 3021, 180 L.Ed.2d 850 (2011).

CD4:19.37;AF:5.19, A.14, B.25

Third Circuit

JUDICIAL REVIEW – MOTION TO REOPEN SUA SPONTE

Park v. Att’y Gen. US, __ F.3d __ (3d Cir. Jan. 17, 2017) (court has no jurisdiction to review petitions filed under 8 C.F.R. § 1003.2(a) requesting the BIA to reopen removal proceedings sua sponte; BIA discretion in this

area is so broad, that the court has no meaningful way to review it).

CD4:15.34;PCN:10.15;AF:6.30;CMT3:10.31

Fourth Circuit

POST CON RELIEF – EFFECTIVE ORDER – EFFECT OF VACATUR – CONVICTION VACATED ON PADILLA CLAIM BEFORE PADILLA DECIDED

United States v. Moreno-Tapia, 848 F.3d 162 (4th Cir. Jan. 26, 2017) (North Carolina conviction that occurred prior to the Supreme Court’s decision in Padilla v. Kentucky, that was later vacated on the basis of that case, is still a conviction for immigration purposes, since Padilla does not apply retroactively to convictions prior to March 31, 2010, when Padilla was decided).

NOTE: The court suggested that if the decision had been vacated on any reason other than the holding of Padilla, a different analysis would apply. This holding, however, would be correct only if the ineffective assistance ground was the failure to give correct immigration advice at plea – the claim which Chaidez held not to be retroactive. If the claim presented was affirmative misadvice of the immigration consequences, Chaidez was inapplicable.

PCN:6.18

POST CON RELIEF – GROUNDS – PADILLA – FEDERAL COURT MAKES INDEPENDENT ASSESSMENT OF WHETHER CONVICTION VIOLATED PADILLA – IMMIGRATION OFFENSES – ILLEGAL REENTRY – POST-CONVICTION RELIEF – EFFECTIVE ORDER VACATING CONVICTION – PADILLA

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United States v. Moreno-Tapia, ___ F.3d ___, 2017 WL 374739 (4th Cir. Jan. 26, 2017) (vacatur of North Carolina state conviction, based on Padilla violation alone, had no effect on illegal reentry conviction where illegal reentry sentence was enhanced on the basis of the vacated conviction, because Padilla was not retroactive to the date of the North Carolina plea, which was therefore not constitutionally invalid under federal law).

The court reasoned:

The primary question before us now is what effect the alleged constitutional deficiency in Moreno-Tapia's state convictions has on his subsequent prosecution for illegal reentry. We conclude that the alleged infirmity has no effect. Because Padilla does not apply retroactively to defendants like Moreno-Tapia, convicted before the case was decided, see Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013), Moreno-Tapia's convictions remain valid today as a matter of federal law, and his attempt to collaterally attack his 2009 removal is unavailing on that ground alone.

NOTE: The court suggested that if the decision had been vacated on any reason other than the holding of Padilla, a different analysis would apply. This holding, however, would be correct only if the ineffective assistance ground was the failure to give correct immigration advice at plea – the claim which Chaidez held not to be retroactive. If the claim presented was affirmative misadvice of the immigration consequences, Chaidez was inapplicable.

PCN:6.18

CRIMES OF MORAL TURPITUDE – INVOLUNTARY MANSLAUGHTER

Sotnikau v. Lynch, ___ F.3d ___, 2017 WL 344277 (4th Cir. Jan. 24, 2017) (Virginia conviction of involuntary manslaughter, in violation of Va. Code Ann. § 18.2-36 [“the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act.”], was not categorically an offense involving moral turpitude, because the offense can be committed with mere criminal negligence (i.e., where the offender knows, or is charged with the knowledge of, the probable results of his [or her] acts, which is insufficient to constitute moral turpitude); citing Noakes v. Commonwealth, 280 Va. 338, 699 S.E.2d 284, 289 (2010) (an involuntary manslaughter conviction can be secured in Virginia without proving a conscious disregard of risks attendant to the offender's conduct; such a conviction can be predicated on proof that the offender failed to appreciate or be aware of the risks emanating from his conduct); distinguishing In re Franklin, 20 I. & N. Dec. 867 (BIA 1994) (Missouri conviction constituted a crime involving moral turpitude because “the Missouri statute defined involuntary manslaughter as ‘recklessly causing the death of another person.’ ”).

CD4:20.13;CMT3:8.13, 9.2, CHART;SH:7.115, 8.14

CRIMES OF MORAL TURPITUDE – DEFINITION

Sotnikau v. Lynch, ___ F.3d ___, ___, 2017 WL 344277 (4th Cir. Jan. 24, 2017) (“A crime involving moral turpitude “must involve conduct that not only violates a statute but also independently violates a moral norm.”

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See Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014); see also id. (“[W]e have noted that ‘moral turpitude’ refers generally to ‘conduct that shocks the public conscience as being inherently base, vile, or depraved.’ ” (quoting Medina v. United States, 259 F.3d 220, 227 (4th Cir. 2001))). That is to say, “[t]o involve moral turpitude, a crime requires two essential elements: a culpable mental state and reprehensible conduct.” In re Ortega-Lopez, 26 I. & N. Dec. 99, 100 (BIA 2013). Accordingly, “[w]here knowing or intentional conduct is an element of an offense,” the BIA has “found moral turpitude to be present.” See In re Perez-Contreras, 20 I. & N. Dec. 615, 618 (BIA 1992). Those circumstances include criminally reckless conduct, which “reflect[s] a willingness to disregard the risks inherent in the conduct.” Id. Criminally negligent conduct, on the other hand, is not included because “there [is] no intent required for conviction, nor any conscious disregard of a substantial and unjustifiable risk.” Id. at 619.”).

CD4:20.2;CMT3:8.2

Fifth Circuit

AGGRAVATED FELONY – SEXUAL ABUSE OF A MINOR – CHILD ENDANGERMENT

United States v. Solano-Hernandez, 847 F.3d 170 (5th Cir. Jan. 26, 2017) (New Jersey conviction of endangering the welfare of a child, under N.J. Stat. Ann. § 2C:24-4, did not constitute a “crime of violence,” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for illegal re-entry sentencing purposes, since the statute includes simply harming a child which may be insufficiently violent).

CD4:19.89;19.36;AF:5.72, 5.18, A.38, B.73

CONVICTION – NATURE OF CONVICTION – RECORD OF CONVICTION – INDICTMENT

United States v. Solano-Hernandez, 847 F.3d 170 (5th Cir. Jan. 26, 2017) (“because Solano-Hernandez was actually convicted under a different statute, the indictment cannot be used to narrow the offense”); citing United States v. Gonzalez–Ramirez, 477 F.3d 310, 315 (5th Cir. 2007); United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003).

CD4:16.30;AF:4.29;CMT3:7.12

CONVICTION – NATURE OF CONVICTION – RECORD OF CONVICTION – JUDGMENT – REASONS FOR SENTENCE

United States v. Solano-Hernandez, 847 F.3d 170 (5th Cir. Jan. 26, 2017) (New Jersey statement of reasons for sentence, incorporated into the judgment, cannot form part of the record of conviction under the modified categorical analysis because “there is no indication that [the defendant] ‘assented’ to those facts… But if the judgment includes narrowing facts, the overriding requirement remains that they must be “explicit factual finding[s] by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254 (emphasis added). A sentencing court may not rely on facts merely because they appear in a judgment.”); citing Herrera–Alvarez, 753 F.3d at 138; Larin–Ulloa v. Gonzales, 462 F.3d 456, 468–69 (5th Cir. 2006) (“Unlike the charging document, the guilty plea, or the factual basis for the plea confirmed by the defendant, sentencing reasons and factors do not simply define the charge and the defendant's guilty plea, but, instead, frequently refer to facts neither alleged nor admitted in court.”).

CD4:16.32;AF:4.31;CMT3:7.12

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CONTROLLED SUBSTANCES – MANUFACTURING AND POSSESSION WITH INTENT TO DELIVER ARE SEPARATE OFFENSES – AGGRAVATED FELONIES – MANUFACTURING POSSESSION WITH INTENT TO DELIVER ARE SEPARATE OFFENSES

Flores-Larrazola v. Lynch, No. 14-60888, 2017 U.S. App. LEXIS 363 (5th Cir. Jan. 6, 2017) (Arkansas conviction of violating Ark. Code Ann. § 5–64–401(a) is a divisible offense, since manufacturing a controlled substance and possession with intent to deliver are separate offenses); citing Cothren v. State, 344 Ark. 697, 42 S.W.3d 543, 547–49 (2001) (holding that “manufacturing a controlled substance” and “possession of a controlled substance with the intent to deliver” are separate offenses that both fall within the purview of Ark. Code Ann. § 5–64–401(a)).); accord, Spaho v. U.S. Att’y General, 837 F.3d 1172, 1177 (11th Cir. 2016) (holding that the statutory “text delineates six discrete alternative elements: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture. Accordingly, the statute is divisible.”).

CD4:19.56, 21.24;AF:5.38

Sixth Circuit

CRIMES OF MORAL TURPITUDE – AGGRAVATED ASSAULT

Lovano v. Lynch, 846 F.3d 815 (6th Cir. Jan. 20, 2017) (Ohio conviction of aggravated assault, under Ohio Revised Code § 2903.12(A)(1) [“No person, while under the influence of sudden passion or in a

sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly ... [c]ause serious physical harm to another or to another's unborn”], constituted a conviction for a crime of moral turpitude because it requires proof of intentionally causing serious physical harm, despite the additional element of provocation of the actor).

CD4:20.7, 20.12;CMT3:8.8, 8.12, 9.15, CHART

CITIZENSHIP – NATURALIZATION – GOVERNMENT MISTAKE

Turfah v. USCIS, 845 F.3d 668 (6th Cir. Jan. 6, 2017) (noncitizen is not “lawfully admitted” if he gains lawful permanent resident (LPR) status due to a mistake by the government; since he was not lawfully admitted, he was ineligible for naturalization; noncitizen cannot not be considered eligible for naturalization by the court through collateral estoppel or other equitable relief).

CD4:3.13;AF:3.3;CMT3:2.2;SH:4.4;PCN:3.6

Ninth Circuit

AGGRAVATED FELONY – DRUG-TRAFFICKING OFENSE – SOLICITATION DOES NOT QUALIFY AS AGGRAVATED FELONY

Sandoval v. Yates, 847 F.3d 697 (9th Cir. Jan. 27, 2017) (Oregon conviction for delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a), is not a categorical drug-trafficking aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), since the Oregon statute

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includes mere solicitation, which is not punished under the Controlled Substances Act), citing United States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014) (noting, outside the context of § 1227, but with reference to the categorical approach more generally, that “a state's definition of a crime is overbroad if its elements allow for a conviction without satisfying the elements Congress has provided to define the required predicate offense”); see also United States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc) (“We do not need to hypothesize about whether there is a 'realistic probability' that Maryland prosecutors will charge defendants engaged in [the broader conduct]; we know that they can because the state's highest court has said so.”); Ramos v. U.S. Att'y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013) (Duenas-Alvarez does not require showing that the state “would use the [state] statute to prosecute conduct falling outside the generic definition ... when the statutory language itself, rather than 'the application of legal imagination' to that language, creates the 'realistic probability' that a state would apply the statute to conduct beyond the generic definition”); Jean-Louis v. Att'y Gen., 582 F.3d 462, 481 (3d Cir. 2009) (finding the “realistic probability” test inapplicable where the statute's “elements ... are clear, and the ability of the government to prosecute a defendant under [the statute] is not disputed”); United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) (“Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no 'legal imagination' is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. The state statute's greater breadth is evident from its text.” (quoting Duenas-Alvarez, 549 U.S. at 193)).

CD4:19.19;AF:5.75, A.39, B.66, B.5;SH:7.100, 8.69

AGGRAVATED FELONY – ATTEMPT – OFFERING TO COMMIT A CRIME OR SOLICITATION IS NOT A SUBSTANTIAL STEP TOWARD COMMITTING AN ATTEMPT UNDER FEDERAL CRIMINAL LAW

Sandoval v. Yates, 847 F.3d 697 (9th Cir. Jan. 27, 2017) (“Thus, under Oregon law, the offer to sell a controlled substance is enough to complete a substantial step toward an intended transfer, i.e., offering to sell a controlled substance is an attempt under Oregon law. See id. The same is not true under federal law. See Rivera-Sanchez, 247 F.3d at 908–09. Accordingly, a statute that punishes the mere offer of a controlled substance is not an aggravated felony under the categorical approach. See id. at 909.”).

The court reasoned:

Because Sandoval argues the Oregon statute under which he was convicted criminalizes solicitation, we must next determine whether generic attempted delivery also includes solicitation. The Controlled Substances Act does not define the term “attempt.” See 21 U.S.C. §§ 802, 846. Nevertheless, as the government concedes, mere solicitation of controlled substances does not constitute “attempted” delivery under federal law. See United States v. Rivera-Sanchez, 247 F.3d 905, 908–09 (9th Cir. 2001) (en banc), superseded on other grounds as stated in Guerrero-Silva v. Holder, 599 F.3d 1090, 1092 (9th Cir. 2010); see also Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo, 123 F.3d at 1325–26. The Controlled Substances Act “does not mention solicitation,” unlike “attempt” and “conspiracy.” Rivera-Sanchez, 247 F.3d at 909 (quoting Leyva-Licea, 187 F.3d at 1150); see

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also Coronado-Durazo, 123 F.3d at 1325; 21 U.S.C. § 846 (prescribing felony punishment for attempting or conspiring to deliver a controlled substance). This is unsurprising, as “solicitation” is the “act or an instance of requesting or seeking to obtain something.” Solicitation, Black's Law Dictionary (10th ed. 2014). While strongly corroborative of intent to commit a crime, such a request does not cross the line between preparation and attempt. See, e.g., United States v. Yossunthorn, 167 F.3d 1267, 1272–73 (9th Cir. 1999) (ordering drugs from a known supplier was not an attempt when there was no agreement as to essential details regarding the transaction).

CD4:19.27;AF:5.7, A.7, B.63;SH:7.34, 8.66

JUDICIAL REVIEW – CONVICTION – NATURE OF CONVICTION – CATEGORICAL ANALYSIS

Sandoval v. Yates, 847 F.3d 697 (9th Cir. Jan. 27, 2017) (“When an agency does not reach an issue for which it is owed Chevron deference, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002); see also Gonzales v. Thomas, 547 U.S. 183, 186 (2006). But interpreting criminal law is not a matter placed primarily in agency hands. See Hoang, 641 F.3d at 1161. We owe no deference to the decision of the BIA on this issue and there is no reason to remand for the BIA to decide the issue of divisibility in the first instance. See Rivera v. Lynch, 816 F.3d 1064, 1078 n.13 (9th Cir. 2016) (“The question of [a state criminal statute's] divisibility ‘requires neither factual development nor agency expertise’ and is properly analyzed by this court.” (quoting Chavez-Solis v. Lynch, 803 F.3d 1004, 1012 n.6 (9th Cir. 2015)).”).

CD4:15.37;AF:2.19;CMT3:3.18

RELIEF – WAIVERS – INA § 212(h) WAIVER – NON-LPR CANCELLATION OF REMOVAL – 212(h) WAIVER DOES NOT AVOID STOP-TIME RULE

Guerrero-Roque v. Lynch, 845 F.3d 940, 941-942 (9th Cir. Jan. 9, 2017) (per curiam) (an alien cannot obtain a waiver of inadmissibility under INA § 212(h) to waive convictions that stop the seven-year clock for purposes of cancellation of removal under INA § 240A(b)).

CD4:24.29;AF:2.45;CMT3:3.44

MORAL TUPRITUDE – OBSTRUCTION OF JUSTICE – WITNESS TAMPERING

Escobar v. Lynch, 846 F.3d 1019 (9th Cir. Jan. 20, 2017) (California conviction for violation of Penal Code § 136.1(a), knowingly and maliciously engaging in witness tampering, is not categorically a crime involving moral turpitude, since the California definition of “malice” is categorically overbroad), citing People v. Wahidi, 166 Cal.Rptr.3d 416, 418-19 (Ct. App. 2013).

NOTE: This opinion includes an interesting discussion on whether to apply Chevron deference to the BIA’s definition of “moral turpitude” in this specific context.

CD4:20.6;CMT3:8.6, 9.39;SH:7.121, 8.36

JUDICIAL REVIEW – CHEVRON DEFERNECE – MORAL TURPITUDE

Escobar v. Lynch, 846 F.3d 1019 (9th Cir. Jan. 20, 2017) (Chevron deference not due to the BIA’s definition of “moral turpitude” as applied to California witness tampering).

NOTE: The Court stated as follows:

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A separate problem is presented by the BIA's use of a more general description of a CIMT as "contrary to justice, honesty, principle, or good morals," Matter of Serna, 20 I. & N. Dec. 579, 582 (BIA 1992), instead of the two-part generic definition employed by this court and the BIA in its published opinions. See, e.g., Matter of Ruiz-Lopez, 25 I. & N. Dec. 551, 551 (BIA 2011) ("We have long held that moral turpitude refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general."). The BIA also stated, "the fact that a crime does not involve a threat of harm or actual harm does not prohibit a finding that it involves moral turpitude." The BIA cited to Matter of Serna to support this proposition, but Matter of Serna involved the fraudulent type of CIMT. See 20 I. & N. Dec. at 585-86.

Finally, the BIA distinguished Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008), which held that falsely identifying oneself to an officer under California Penal Code section 148.9(a) is not a categorical CIMT, because the California statute at issue in Blanco required general as opposed to specific intent. The BIA emphasized that section 136.1(a) requires the prosecution to prove that "the defendant's acts or statements are intended to affect or influence a potential witness'[s] or victim's testimony or acts." People v. McDaniel, 27 Cal.Rptr.2d 306, 309 (Ct. App. 1994). But the BIA did not analyze whether this specific intent is sufficiently indicative of a "vicious motive or a corrupt mind" to render section 136.1(a) a categorical CIMT under Ninth Circuit case law or BIA precedent. Linares-Gonzalez, 823 F.3d at 514 (quoting Latter-Singh, 668 F.3d at 1161). Nor did the BIA address the reasoning in Blanco, which emphasized that impeding a criminal investigation is not enough to

render a crime a categorical CIMT. See 518 F.3d at 720.

Because we find the BIA decision unpersuasive in its delineation of the generic definition of a CIMT as applied to obstruction of justice, and because we generally do not defer to the BIA in interpreting state or federal criminal statutes, see Castrijon-Garcia, 704 F.3d at 1208, we review de novo whether California Penal Code section 136.1(a) is a categorical CIMT.

CD4:15.37, 20.2;CMT3:3.18, 8.2

CAL POST CON – REDUCTION OF FELONY TO MISDEMEANOR – REDUCTION TO MISDEMEANOR PERMITS A PERSON TO OWN A FIREARM, BUT RESENTENCING DOES NOT

People v. Bastidas, 7 Cal. App. 5th 591, 212 Cal. Rptr. 3d 716 (1st Dist. Div. 5, Jan. 13, 2017) (a person whose petition was granted (under Penal Code § 1170.18(b)) cannot own a firearm but the granting of an application (§ 1170.18(g)) permits a person to own a firearm as a result of that specific offense); citing Penal Code § 1170.18(k)("Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (Emphasis added.)).

CCDOI 20.64

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CAL POST CON – REDUCTION OF FELONY TO MISDEMEANOR – RETROACTIVITY

People v. Bastidas, 7 Cal. App. 5th 591, 212 Cal. Rptr. 3d 716 (1st Dist. Div. 5, Jan. 13, 2017) (Proposition 47 is not retroactive and thus a person needs to go through the Penal Code § 1170.18 procedure even if the person’s conviction was not yet final when Proposition 47 passed); cf. People v. DeHoyos (2015) 238 CA4th 363, rev. granted, lead case 9-30-15, S228230 (the CTA also decided that the defendant was prohibited from possessing a firearm, since a person who is on probation is “still serving a sentence for a conviction,” and thus must petition for relief under subdivision (a)); but see United States v. Pruner, 606 F2d 871, 872 (9th Cir. 1979)( getting an offense reduced to a misdemeanor pursuant to Penal Code § 17(b) does not make that offense a misdemeanor for purposes of federal gun law).

Note: However, after Pruner, Congress changed the law such that: "The term 'crime punishable by imprisonment for a term exceeding one year' does not include– . . . (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 18 U.S.C. § 921(a)(20). Anyone who wants written verification that he or she is or is not permitted to own or possess a firearm can submit a Personal Firearms Eligibility Check application to the California Department of Justice.

Thanks to Doug Feinberg.

CCDOI 20.64

CAL CRIM DEF – POST CON RELIEF – REDUCTION OF FELONY TO MISDEMEANOR – ELIGIBILITY

People v. Sledge, 7 Cal. App. 5th 1089, 213 Cal. Rptr. 3d 265 (4th Dist. Div. 3, Jan. 25, 2017) (a juvenile adjudication of a super strike offense for conduct occurring after the minor turned 16 years of age counts as a disqualifying prior conviction from eligibility for Prop. 47 reduction of felony to misdemeanor or resentencing, under Penal Code § 1170.18, if the offense meets the statutory requirements to count as a Strike; the prosecution has the burden of proving ineligibility based upon a disqualifying prior conviction; and an "'evidentiary hearing is required if . . . there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' (California Rules of Court, rule 4.551(f).) ").

Note: The court also advised on the conduct of an evidentiary hearing concerning eligibility for Prop 47 relief. It stated that the court may rely on probation reports and other reliable hearsay both to determine if the current offense is eligible and whether any prior conviction disqualifies the defendant from Proposition 47. This may actually be good news if the prosecution is objecting to your client's eligibility when the police reports or probation reports show eligibility. Otherwise, it's bad news, particularly as to the DA being able to use hearsay to prove a disqualifying prior conviction. Note that People v. Johnson (2016) 1 Cal.App.5th 953, n.16, disapproves of using the probation report as evidence at a Proposition 47 eligibility hearing. There is dictum in Sledge that if the offense counts as a Strike and also requires sex offender registration, the defendant would also be disqualified. See Sledge, supra, n.6.

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Thanks to Douglas Feinberg

CCDOI 20.64

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