In a week of expecting bad news on a lot of immigration-related fronts, changes to DACA (not yet), and the pardon of Sheriff Arpaio (happened), the one thing I did not expect was that the Ninth Circuit would resurrect Young v. Holder from the scrap heap of appellate history in Marinelarena v. Sessions.
The story of this great leap backwards starts with Young in 2012. There are two main issues that frame the entire saga. The first is defining the nature of a crime a person was convicted of (Usually, are they removable offenses or aggravated felonies or crimes of moral turpitude?). The second involves burdens of proof in seeking relief from being removed from the United States.
The first issue goes like this: The Immigration and Nationality Act lists certain types of crimes that lead to deportation. It also lists certain ways a person can avoid deportation, referred to as relief from deportation, depending on factors like length of residence in the United States, relatives here, and hardship and discretionary factors. Some criminal convictions bar forms of relief.
Because there is a huge body of federal criminal laws, fifty states with huge bodies of laws, and laws from local jurisdictions within states, it is impossible for Congress make a list of laws that are deportable and a list of laws that bar relief. Instead, Congress lists categories of laws that make one deportable or bar relief, like theft offenses, controlled substance violations, firearm offenses, sexual abuse of a minor crimes, crimes of moral turpitude, aggravated felonies, etc. It is then the job of the immigration judge to decide whether a federal, state, or local conviction fits into these categories. This is a lot more complicated then it seems, for two main reasons. The first is that there is no uniform definition of certain crimes – a theft in California means something different than a theft in Texas. Some categories lack even a statutory definition or even a manageable agency-created or judge-made definition, like crime of moral turpitude. The second is that it is hard to know what a person was convicted of exactly in trying to find out what category it fits under. An underlying principle in making these determinations is that the definitions be uniform throughout the country – federal immigration law should be uniformly applied. As a matter of fairness, person should not be deportable for a crime in Texas that he would not be deportable for if he committed it in California.
The starting point is to find a generic definition of a type of crime, either from a federal statute, a model penal code, or common law. That is the easier part. The next step is then see if the law the person was convicted of fits the generic definition. This is the hard part. It is hard because state laws may not only not only have fewer elements and thus not match the generic definition, but may have more elements, that is, it included more than one crime in one statute. It thus becomes necessary to figure out what the person was actually convicted of. For example, violating a firearms law is a removable offense. Suppose a state (say, Idaho) law criminalizes using a gun, firework, or numchuck in an unlawful manner. A person in Idaho is convicted of violating this law. He pleads guilty to it without specification as to what he did. Was he convicted of a firearms offense? How do you know?
One way to know is to look at the police reports or even the person’s admissions. Suppose at sentencing, the criminal court judge said to the defendant, “Sir, do you have anything to say?” Now suppose the defendant answered, “Gosh, I’m sure sorry I fired that Glock 42 near the bus stop.” You might think, now we know the defendant was convicted of possessing a firearm and not a bottle rocket and since there can not be any argument that a Glock 42 is a firearm, he must have been convicted of a firearms offense and is removable for it.
Now this is where things divert from what one might call common sense. The Supreme Court has been pretty adamant that criminals can only be considered convicted of a specific crime if a factfinder (judge or jury) found that all the elements of the crime have been met, like in the relatively recent cases of Descamps v. United States and Moncrieffe v. Holder. The principal reasons are that otherwise other courts, like immigration courts, would have to have trials-within-trials to figure out what the person did and it would be unfair to impact people (we are not supposed to consider deportation or other civil harms punishment) based on criminal convictions using processes that provide a person fewer rights than criminal proceedings.
Back to the fictitious Idaho statue. Unless the Idaho judge or jury found the defendant guilty of shooting the Glock 42, or some other firearm, as opposed to using fireworks or a numchuck, he cannot be considered to have violated a generic firearms offense and cannot be deported for committing a firearms offence regardless of what he may have said. It could be that despite what he said, the conviction document states that he used a “gun, firework, or numchuck in an unlawful manner,” not specifying which, or the crime did not require a judge or jury to designate which device the defendant actually used. If the judge or jury only had to decide that the defendant used a “gun, firework, or numchuck in an unlawful manner,” without deciding which and one juror could have believed he used a gun unlawfully and another a numchuck illegally, and the defendant could still have been convicted, then the conviction cannot be said to have been a firearm offense.
If despite the persuasiveness behind the Supreme Court’s reasons why all the elements of the generic offense must be met and the conservative judicial pedigree for these cases, it obviously can stick in the craw that aliens can avoid deportation when it is pretty obvious that their conduct was what one would consider deportable offenses. The Ninth Circuit rebelled against this in an en banc case, U.S. v. Aguila-Montes de Oca, but they were shot down 7-2 in Descamps v. United States.
Which brings us to the second issue, burdens of proof. Generally, the government needs to prove removability and an alien being removed has to prove eligibility for relief. In Young, an alien was convicted of violating Cal. Health and Safety Code 11352(a), which states:
Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance… shall be punished by imprisonment…
The conviction documents in Young showed that cocaine base was involved – at least Mr. Young’s attorneys did not argue about that. He was thus deportable for a federally identified controlled substance violation. Not all drugs illegal under California law are illegal under federal law, so ambiguity about the drug involved could have led to his not being able to be found deportable at all.
The government also alleged that Mr. Young was deportable for the aggravated felony of drug trafficking. An aggravated felony conviction would bar Mr. Young from forgiveness for his conviction. Of the what I count as 14 different crimes found in Cal. Health and Safety Code 11352(a), the criminal conviction documents did not specifically identify what Mr. Young did. Some of the crimes are drug trafficking offenses and some are not. The court in Young concluded that it was ambiguous as to what specific offense Mr. Young pled guilty to and thus concluded he was not deportable for being an aggravated felon. This was of no major importance because a person needs just one basis to be deportable. Like pregnancy, you either are or aren’t (being pregnant with twins does not make one more pregnant).
However, if he was not an aggravated felon, he could ask for forgiveness. The question then is whether because it cannot be determined whether the crime was an aggravated felony, is he eligible for forgiveness? The court, based on burden of proof, said that though he was not deportable for being an aggravated felony, he was ineligible for relief because he could not prove he was not an aggravated felon. The court wrote, “an alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony.” In other words, the court held that Mr. Young was not deportable for being an aggravated felon because the government could not prove he was convicted of an aggravated felony, but he was ineligible for forgiveness for a drug crime because he could not prove he was not an aggravated felon.
Since Young, several cases at the Supreme Court and the Ninth Circuit have given every appearance of reversing Young. Then came Marinelarena v. Sessions, last week, which held that “Young v. Holder, 697 F.3d 976 (9th Cir.2012) (en banc), which held that a petitioner cannot carry the burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, remains good law.”
This is a major earthquake because a slew of post-Young decisions gave every indication that Young was dead. In Almaza-Arenas v. Lynch (en banc), the Ninth Circuit Court of Appeals held that because Mr. Almanza-Arenas was convicted of a crime where it was ambiguous as to whether the crime, Cal. Penal Code § 10851 (auto theft), was morally turpitudinous, he was not ineligible for Cancellation of Removal for Certain Nonpermanent Residents, which, had he would have been ineligible for had he been clearly convicted of a crime of moral turpitude.
Additionally, in Rendon v. Holder, Mr. Rendon was removable for two crimes of moral turpitude. In addition, he suffered a conviction for Cal. Penal Code § 459, which criminalized entering certain types of structures to commit larceny or any felony. The BIA asserted that because the Cal. Penal Code § 459 crime was not unambiguously an aggravated felony, which larceny would be and any other felony would not be, Mr. Rendon was ineligible for Cancellation of Removal. The Ninth Circuit held that because the statute was not divisible, Mr. Rendon was not convicted of an aggravated felony and was eligible for Cancellation of Removal.
Specifically addressing Young v. Holder, the Rendon court wrote:
Young held that, when a court applies the modified categorical approach [part of the process of how a court determines the elements of the crime a defendant was convicted of], a petitioner cannot demonstrate eligibility for cancellation of removal on an inconclusive record because, in such a case, it is both “possible that Petitioner’s prior conviction constitutes an aggravated felony” and “possible that it does not.” . That is because the modified categorical approach allows a court reviewing a prior conviction under a divisible statute to determine which of “several different . . . crimes” was at issue.  In contrast, a defendant convicted of an indivisible statute has necessarily committed the one crime at issue, and that crime is either a match to the federal, generic crime, or it is not. The record is never inconclusive. Thus, if the petitioner establishes that the statute under which he was convicted is indivisible and punishes a broader range of conduct than the federal, generic crime, it is never possible for that conviction to qualify as an aggravated felony, and the petitioner has met his burden.
Finally, in Moncrieffe v. Holder, the Supreme Court held that a Georgia drug statute that could have been an aggravated felony for drug trafficking or not an aggravated felony for distributing a small amount without remuneration, was not an aggravated felony because the statute was not divisible, meaning the judge and jury did not need to decide whether Mr. Moncrieffe distributed a small amount without remuneration or a large amount with remuneration. The court then went on to say that Mr. Moncrieffe was not getting off scott-free because he still removable for a controlled substance violation and had to merit relief. If he were a serious drug trafficker he would not get relief. Clearly, Mr. Moncrieffe was eligible for relief notwithstanding that his conviction was not clearly not an aggravated felony. If the ambiguity made him ineligible for relief, then the Moncrieffe case stands for nothing. A person convicted under the Georgia statute would be removable for a controlled substance violation, but ineligible for the relief from removal because of ambiguity as to whether he was an aggravated felony. Marinelarena renders Moncrieffe meaningless and his victory archetypically pyrrhic. Courts of Appeal usually don’t stick their fingers in the eye of the Supreme Court like that.
In light of Moncrieffe and previous decisions of the Ninth Circuit, it is a good bet that Marinelarena will go en banc. If the Ninth Circuit somehow finds that Moncrieffe, Almanza-Arenas, and Rendon do not control the issue and Young does, the case will likely go to the Supreme Court, which hopefully will spell out any latent ambiguity in the holding in Moncrieffe; that an alien with a conviction which is ambiguous as to its effect on barring relief does not bar relief. Either that or it will have to explain why its 7-2 decision in Moncrieffe was a mistake. Posted August 27, 2017.