This week the Ninth Circuit held that to determine the immigration effect of a criminal conviction the adjudicator must consider the statute at the time of the conviction. Remember The Great Gatsby from high school? Remember how Jay Gatsby desperately tries to change his future by shaking off the working-class dust of his past, in order to join the upper-crust New York society. Remember how he simply can’t rewrite his past? The last line of the book recognizes the futility of trying to hide your past to change your future. “So we beat on, boats against the current, borne back ceaselessly into the past.” F. Scott Fitzgerald, The Great Gatsby. In this immigration decision, the Ninth Circuit reminds us of the futility of trying to change our past to influence our future. The Ninth Circuit held that Executive Office for Immigration Review and DHS in adjudicating an immigration decision must consider a state criminal conviction and any potential sentence as the statute was written at the time of conviction. The immigration courts and USCIS will not recognize any retroactive changes to a state statute for federal immigration purposes. More specifically, the Ninth Circuit held that a California criminal statute that retroactively reduces the maximum misdemeanor sentence to 364 days is ineffective to change the consequences of removability under INA § 237(a)(2).
California’s Attempts to Change the Past
For the past several years the Immigrant Legal Resource Center working with private practitioners including Michael Mehr (and others who names I don’t know) have been lobbying the California State Legislature to implement new laws to help noncitizens. Among their successes have been Cal. Penal Code § 1473.7 (a defendant can apply for post-conviction relief if they did not understand the immigration consequences of their plea); Cal. Penal Code § 1203.43 (a defendant who was granted Deferred Entry of Judgment for a controlled substance offense can move to have the conviction vacated if they did not understand the consequences of their plea); and Cal. Penal Code § 18.5 (all misdemeanors have a maximum potential sentence of 364 days and this law shall be applied retroactively). It has been wonderful to use these laws to get relief for clients with criminal histories. Remember there is no statute of limitations in immigration law so a conviction for drug trafficking from 1980 can make a person deportable in 2020. These California laws have truly expanded the practice of criminal immigration. But the federal government seems to be less than pleased with immigrants getting relief from the state courts and changing the outcome of removal proceedings.
The Ninth Circuit is now letting its displeasure known. “[F]or more than a century, it has been universally acknowledged that Congress possesses sweeping authority over immigration policy as “an incident of sovereignty.” .*.*.* From this it follows that Congress may make laws defining the proper sphere in which a person who is not a citizen and is in the United States without proper authority may be removed from this country and that Congress but not individual states, can give an escape hatch for removal in certain cases where equitable circumstances are thought to warrant cancellation of removal as a matter of law.” Velasquez-Rios v. Barr, __ F.3d __, No. 18-72990 slip op. at * 17 (9th Cir. Oct. 28, 2020) (internal citations omitted). Because under the Constitution the federal government has powers to control immigration through the Naturalization Clause, the Commerce Clause, and the Migration and Importation Clause, the states cannot usurp this power. In other words, sorry California, your intentions may have been good, but you can’t change federal immigration laws or policies. These concerns truly shape the outcome of this decision. The same panel that last week brought us Ortega-Lopez v. Barr, No. 18-72441 (9th Cir. Oct. 20, 2020) (animal cruelty is categorically a crime involving moral turpitude and non-Lawful Permanent Residents are ineligible for cancellation of removal under INA § 240A(b) if they have been convicted of a crime listed in INA § 212(a)(2) or § 237(a)(2). You can read about this case here) brought us this case.
Facts
Eduardo Velasquez-Rios is a native and citizen of Mexico who entered the United States at different times between 1987, 1988, and 1997. In July 2002 he pleaded guilty to Cal. Penal Code § 475(a) (misdemeanor forgery). He was sentenced to twelve days in jail, eight days of community service, and ordered to pay a fine. Back in 2002, the maximum potential sentence for this crime was “not more than one year.” Cal. Penal Code § 473. (That last sentence is going to prove to be key in understanding this case). Sanjay Desai is a national and citizen of India. In 2000 he was admitted to the United States on a visitor’s visa. Mr. Desai overstayed his visa. At some point, he was convicted of violating Cal. Penal Code § 487 (misdemeanor grand theft). At the time of his conviction, the maximum potential sentence for this crime was one year of imprisonment. Cal. Penal Code § 487, § 489(b).
In 2011 DHS placed Mr. Desai in removal proceedings and in 2012 DHS placed Mr. Velasquez-Rios in removal proceedings. (These dates are important). Each man applied for cancellation of removal for non-lawful permanent residents. INA § 240A(b). (A non-lawful permanent resident who has been living in the United States for over ten years, is a person of good moral character, has not been convicted of an offense listed under INA § 212(a)(2), § 237(a)(2), or § 237(a)(3), and, who can establish that their removal would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident parent, spouse, or child, can apply for cancellation of removal). The Immigration Judges (IJ) in both cases found that they were statutorily ineligible for cancellation of removal under INA § 240A(b)(1)(C) because they had been convicted of crimes involving moral turpitude (CIMTs) for which a sentence of one year or longer may be imposed. As we were reminded last week, the offenses listed in INA § 212(a)(2), and § 237(a)(2) only cross-reference the list of crimes and are not modified by the immigration consequences. Ortega-Lopez v. Barr.
Remember how I said that the dates of conviction were important? On January 1, 2015, the California legislature enacted Cal. Penal Code § 18.5 which reduced the maximum jail sentences for a misdemeanor from “up to or not exceeding one year” to “a period not to exceed 364 days. Cal. Penal Code § 18.5 (2015). You gotta love California – we do try. Mr. Velasquez-Rios appealed his removal to the Board of Immigration Appeals (BIA) arguing that his forgery conviction no longer qualified as an offense under INA § 237(a)(2) because the maximum possible sentence was 364 days. (This law was written for people like Mr. Velasquez-Rios). The BIA rejected his argument noting that at the time of his conviction the maximum sentence was one year. Mr. Desai appealed on the same grounds and the BIA rejected his case basically on the same grounds (it’s actually a bit more complicated, but for our purposes, this analysis will do). Mr. Velasquez-Rios appealed the BIA’s decision to the Ninth Circuit. While his case was pending before the Ninth, the California legislature amended Cal. Penal Code § 18.5 to apply retroactively to all misdemeanor convictions regardless of whether the conviction was finalized on or before the original enactment date. In other words, under California law now all misdemeanors have a maximum potential sentence of 364 days. The Ninth Circuit remanded the case to the BIA to adjudicate the retroactive application for Cal. Penal Code § 18.5.
The BIA held that even though the California legislature had retroactively reduced the maximum possible sentence for a misdemeanor for purposes of state law, the maximum sentence for purposes of federal law under INA § 237(a)(2) is determined by looking at the sentence at the actual date of conviction. Because Mr. Velasquez-Rios could have been sentenced to up to one year of imprisonment at the time of his plea to misdemeanor forgery he was statutorily ineligible for non-lawful permanent resident cancellation of removal. Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018). This reasoning held true for Mr. Desai and both men appealed these decisions to the Ninth Circuit.
Legal Analysis
Cal. Penal Code § 18.5 Should Not be Applied Retroactively for Immigration Purposes
The issue before the Court was whether Cal. Penal Code § 18.5 should be applied retroactively for the purposes of cancellation of removal. The Ninth Circuit held, “no.” The Ninth Circuit (and the BIA) looked to two criminal sentencing cases for guidance. (Remember immigration law and the Armed Career Criminal Act (ACCA) often use the same analysis). The Supreme Court had held that under the ACCA the adjudicator must look to the law at the time of conviction and to determine the implications of the conviction. McNeill v. United States, 563 U.S. 816 (2011) (defendant was convicted of drug offenses in North Carolina state court. After the state legislature reduced the maximum sentence available the defendant argued that the district court should have used the current reduced maximum sentence in applying the ACCA. The Supreme Court held that the ACCA “require[d] the court to determine whether a ‘previous convictio[n]’ was for a serious drug offense,” and explained that the only way to answer that “backward-looking question” was to consult the law that applied at the time of conviction.” McNeill, 563 U.S. at 825 n.1) cited in Velasquez-Rios, slip op. at *11.
The Ninth Circuit faced a similar issue in United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). Mr. Diaz was convicted of drug-related crimes and was sentenced to life imprisonment because his two prior California felony convictions triggered a mandatory sentence enhancement under 21 U.S.C. § 841. Four years later, California adopted Proposition 47 under which state courts could reclassify certain felony convictions as misdemeanors. (Fun fact, that issue is back on the California ballot this year. Law enforcement groups are trying to roll-back the protections of Prop 47. You can read about it here). Relying on the Supreme Court’s decision in McNeill, the Ninth Circuit held “that the statue called for a backward-looking inquiry to the initial date of conviction, rather than the current state of California law, and that the triggering event under § 841 was when the two felony drug convictions had “become final.” Velasquez-Rios, slip op. at *11-12.
It seems that based on McNeill and Diaz this issue really can’t be challenged. But the Petitioners had some truly excellent legal representation (the list of attorneys is a veritable Who’s Who of crim/imm specialists). They argued that INA § 237(a)(2) lacked any explicit reference to the finality of convictions. The Ninth Circuit countered with even if INA § (a)(2) did not explicitly refer to the “finality” of a conviction, INA § 240A(b)(1)(C) requires that a noncitizen “has not been convicted” of an applicable offense. Velasquez-Rios, slip op. at *12 (emphasis in the original). The Ninth Circuit found, “[a]s we held in Diaz, the “only way to answer this backward-looking question is to consult the law that applied at the time of that conviction. Diaz, 838 F.3d at 820. We see no reason why the reasoning underpinning Diaz should apply with any less force here.” Ibid. I’m not sure that I agree with this panel that the language “has not been” convicted requires the court to apply the law at the time of that conviction. I think it’s a bit of a stretch.
The Ninth Circuit goes on and states that they believe their approach aligns with the Supreme Court’s admonishments that federal laws should be construed to achieve national uniformity. Velasquez-Rios, slip op. at *12. Then in a truly nonsensical argument, the Ninth Circuit held that if they were to hold otherwise, then a noncitizen’s “eligibility for cancellation of removal based on a CIMT conviction would, therefore “depend solely upon where the previous conviction had occurred.” Velasquez-Rios, slip op. at *13. Well, of course, that happens every day in immigration court. For example, a Florida burglary conviction has different elements than a California burglary conviction. It is up to the immigration courts to determine whether a state crime meets the federal definition of a CIMT based on the elements. There are thousands of cases about this issue. (I believe it’s called something like … ummmm … the categorical approach and modified categorical approach, but I could be wrong). The Ninth Circuit then doubles down on this nonsense and notes in its parade of horribles that two noncitizens who had identical criminal histories could receive different treatment under the cancellation of removal statute because one person’s immigration hearing happened to occur after the state legislature amended the punishment for one of the prior offenses. Velasquez-Rios, slip op. at *13. Okay, but if we were to read the statute to allow for the retroactive application of the statute both noncitizens would be treated exactly the same. These arguments do not hold up.
Finally, we seem to get to the real reason for this decision. “[W]e decline to give retroactive effect to the California statute in the cancellation of removal context where it appears that the purpose of that state-law amendment is to circumvent federal law. The legislative history of the amendment to § 18.5 of the California Penal Code reveals that the amendment’s retroactive application was designed to prevent the deportation of [noncitizens] who had been convicted of misdemeanors before 2015.” Velasquez-Rios, slip op. at *13. The Ninth Circuit goes on to note that principles of federalism require that federal law, not state law governs the interpretation of federal statutes. Velasquez-Rios, at *14. I can respect that argument.
Distinguishing Wobblers
The Ninth Circuit then goes on to distinguish this case from those cases involving “wobblers”. Aside from their awesome name, “wobblers” are a California criminal offense that can either be classified as a felony or a misdemeanor. (See, they wobble). The Petitioners cite to Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2004). Mr. Garcia-Lopez had been convicted of a wobbler. He was sentenced to a period of probation which he violated. He was placed in removal proceedings after violating probation. While his case was pending in immigration court, the state court reinstituted his probation and found that he had been convicted of a misdemeanor rather than a felony. The Ninth Circuit found that he was eligible for cancellation of removal because his offense fell under the petty offense exception. INA § 212(a)(2)(A)(ii)(II) (1996). The Ninth Circuit distinguished Garcia-Lopez holding that while the “wobbler” statute permitted a range of possible classifications for the offense at the time of conviction, here the Petitioners had only one possible maximum sentence at the time of conviction – up to one year of imprisonment. But the Ninth Circuit noted that in Petitioners’ situation “[t]he retroactive change to the sentence for California’s misdemeanor cannot change that historical fact.” Velasquez-Rios, slip op. at *15.
The BIA’s Decision Conflicts with Past BIA Precedent
The Petitioners then argue that the BIA’s decision in Matter of Velasquez-Rios, conflicts with prior BIA decisions about state sentencing laws. (Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2015), Matter of Song, 23 I&N Dec. 173 (BIA 2001). Mr. Desai also argued that those precedential decisions require the BIA to recognize the amendment to Cal. Penal Code § 18.5 under the Full Faith and Credit Clause, as codified at 18 U.S.C. § 1738. The Ninth Circuit held that they did not see any conflict. First, they noticed that neither Petitioner obtained nunc pro tunc sentencing (a new sentence going back to the original date of conviction). Then they noted that the Attorney General overturned both of these precedential decisions in Matter of Thomas & Thompson, 27 I&N Dec. 674 (AG 2019). (But they did not address the argument in Thomas & Thompson that the Full Faith and Credit clause does not apply to agency proceedings). The Ninth Circuit ends its decision where we started by noting that immigration law is federal and that the states cannot interfere with the federal implementation of immigration law.
Velasquez-Rios v. Barr, No. 18-72990 (9th Cir. Oct. 28, 2020).