Ninth Circuit en banc re-defines conviction based on facts not related to a conviction at all.

Sunday, June 10th, 2012
By: Jonathan MontagJ.D.

The gloves are off in the Ninth circuit again. This time in Planes v. Holder. On June 5, 2012, the court denied a petition for rehearing that featured a concurrence and a dissent, with each side pointing out how the other made egregious errors in its decision making. This is an Avengers versus Loki battle in public view (for free and without wearing 3D glasses). 

The underlying case was decided on July 5, 2011.  

The holding in Planes is that when a court convicts someone of a crime, he becomes subject to removal for the crime even if he appeals that decision. In other words, even though the conviction is not final in the criminal context because an appeal is pending, the conviction is final in the immigration context and the person can be deported.

Surprising to me when encountering the new, June 5, 2012, decision, with all the furious argument between the judges, is how the case did not make a splash in the immigration law world on July 5, 2011. I would have expected headlines, commentaries, seminars, and lectures about the “new law” regarding convictions in the Ninth Circuit. If there was a splash, I did not detect it.

I think this is why. The July 5, 2011, decision was based on these facts:

  1. Mr. Planes is found guilty of two crimes of moral turpitude;
  2. Mr. Planes appeals his sentence for one of the two convictions;
  3. Mr. Planes is found deportable for two crimes of moral turpitude and denied Cancellation of Removal relief. Deportability does not hinge on the sentences for either crime under the “two crimes of moral turptiude” deportation ground;
  4. Mr. Planes appeals to the Ninth Circuit, arguing that because his sentence was on direct appeal, he did not yet stand convicted and thus could not be deported based on a final conviction;
  5. A three judge panel concluded that under INA § 101(a)(48)(A), which became law as part of substantial changes in immigration law in 1996 with President Clinton’s signing of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), because a judgment of guilt was entered, the alien was convicted regardless of the fact that it was under appeal. 

The Courts of Appeal to a small degree, but practitioners, immigration courts, and the Board of Immigration Appeals a lot, have been dealing with INA § 101(a)(48)(A) since 1997. It has become almost axiomatic that a conviction cannot be undone by subsequent rehabilitative actions by a criminal court, such as expungements. The exception is when a conviction is vacated because of legal or constitutional defects in the conviction. However, subsequent changes to a sentence can have ameliorative immigration consequences. Such has been held by the Ninth Circuit  and the BIA. The reason is quite simple – because INA § 101(a)(48) defines “conviction” and not “sentence.” The new definition of conviction at INA § 101(a)(48) may preclude consideration of subsequent actions of a criminal court regarding the conviction, but INA § 101(a)(48) does not relate to the sentence and subsequent actions relating to a sentence can have  immigration consequences – both positive and negative.

Along comes Planes v. Holder, which by all appearances is a sentencing case and not a conviction case. No one is arguing that if Mr. Planes wins his appeal, he will not have been convicted. Further, no one argues that a different sentence would change whether he is deportable or whether the relief calculus would have been any different (though the relief calculus argument might have been a good one). Because Planes appeared to be a sentencing case, its impact seemed minimal; just another case that says sentencing issues are not relevant to whether there is a conviction and whether an alien is deportable for the conviction when the sentence is not a factor in removability.

However, for some reason, the Ninth Circuit turned Planes into a conviction case rather than dealing with it as a sentencing case. 

The judges favoring denying rehearing the case, Judges Ikuta, O’Scannlain, Callahan, and Bea, write at the very beginning of their concurrence:

The dissent from the denial of rehearing en banc neglects a salient point: Every circuit that has given a reasoned opinion on the interpretation of “conviction” in 8 U.S.C. § 1101(a)(48)(A) [INA § 101(a)(48)(A) has reached the same conclusion as the panel does here, namely, that “[t]he term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court,” regardless whether appeals have been exhausted or waived.

They thus make it crystal clear at the outset that they view the case as a conviction case and not simply a sentencing case.

The dissenters to the denial of rehearing, Judges Rheinhardt, Kozinski, Pregerson, Thomas, Wardlaw, W. Fletcher, and Paez, write:

The three-judge panel in this case decided a question of exceptional importance: whether immigrants in our country, lawful and unlawful, can be deported immediately after a trial court enters a judgment of guilt against them in a criminal case, before they have had the opportunity to obtain appellate review of their convictions.

The dissenters point out that the BIA handled the case as a sentencing case, but the dissenters do not argue that because the case is not a conviction case as the appeal of the criminal case dealt only with the sentence, the majority’s views about there being no effect to an appeal outside of the sentencing context is mere dicta, but rather address the merits of the majority’s conviction-case holding. 

It would be nice to ignore the fracas and simply characterize it as a bunch of really smart people going off on a tangent about something of little concern to the rest of us – like a grand debate in linguistics about “Universal Grammar” — interesting to those in this esoteric field, but to the rest of us, WGAS. The problem is that with the judges insisting that this is a seminal “conviction” case, is an alien whose criminal conviction is on direct appeal going to be able to convince an immigration judge or the BIA, or even another Ninth Circuit panel, that his conviction is not final despite Planes because the issue has not been dealt with directly by Planes? Like in the Avengers, we are left with a whole lot of destruction while we await a (Supreme Court?) sequel. Posted June 10, 2012.


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