Weekly Blog for 3.29.19 by Merle Kahn, Esq.
This week has been relatively tame in the Ninth Circuit in terms of immigration law. Only one immigration case came down but it is interesting. The Ninth Circuit held that an Oregon conviction for robbery is categorically not a crime involving moral turpitude (CIMT) and that individuals returning to Mexico from the United States who are believed to be wealthy do not constitute a cognizable particular social group for asylum and withholding purposes. Plus, we have a concurrence by Judge Berzon where she argues that non-fraudulent CIMTs are unconstitutionally vague. It’s an interesting case. Plus, in this
NINTH CIRCUIT
A Conviction for Third Degree Robbery from Oregon is Categorically not a CIMT and Individuals Who are Believed to be Wealthy who are Returning to Mexico are not a Cognizable Particular Social Group
In a surprisingly interesting case, the Ninth Circuit gives us a gentle reminder of the importance of our opening briefs. The Ninth Circuit held that a conviction for third-degree robbery is categorically not a CIMT and that individuals who are believed to be wealthy who are fearful of returning to Mexico are not a cognizable particular social group. The Ninth Circuit did not address whether the robbery statute itself was divisible because the Government failed to make that argument in their opening brief and waived it. I know it’s hard to remember to make all the arguments but, it’s critical because the Ninth Circuit can otherwise deem it waived.
Facts
Pedro Aguirre Barbosa is a Mexican citizen. Sometime between 1997 and 1999 he entered the United States. In 2008 he pleaded no contest to a violation of Oregon Revised Statutes § 164.395 (
The Categorical Approach
The Ninth Circuit reminds us of how to use the categorical approach. First, we must compare the elements of the state offense to the elements of the generic offense as defined by federal law. If the elements of the state law are the same as or are narrower than the federal law we have a match and we are done. (Note: we are rarely done at step one). Second, if the state statute is overbroad (i.e. it criminalizes conduct that goes beyond the elements of the federal offense) we determine whether the statute is divisible. Finally, if the state statute is divisible then we must “peek” at the record of conviction to determine which exact offense the defendant was convicted of violating. But the adjudicator is limited as to what they can review and the review of the record is solely for the purposes of determining which section of the statute the defendant was convicted of violating. What the defendant did is completely irrelevant to this exercise. It just does not matter.
Cats and Kittens and Baskets
Now I like to think of a divisible statute as a cat or kittens in a basket. You can also try this thought experiment using a loaf of bread and bread rolls – it will be less gory. You might think I’m crazy, but the categorical and modified categorical approach is enough to make anyone go crazy; so let’s simplify it. Think of the animal(s) as the state law and the basket as the federal law. If the cat fits in the basket and is comfortably curled up, there is a statutory match between the state and federal law. The cat fits. If it’s a big cat and it’s overflowing the basket (its head is sticking out as is its back and tail) it’s an overbroad statute. You can’t cut off the parts of the cat that are sticking outside the basket without harming the cat – similarly, you can’t cut apart the statute without destroying it. That statute is indivisible and overbroad. Now imagine a bunch of kittens overflowing in that same basket and gamboling around. You can take out a single kitten, and stick it in the basket without hurting the kitten and it will fit. That is a divisible statute and the kitten fitting in the basket is a statutory match. I am not condoning animal cruelty here; it’s just an easy and graphic way to think about divisible and indivisible statutes.
The Categorical Approach for CIMTs
The Ninth Circuit goes into more detail here and does not discuss cats and kittens and baskets; or even bread and rolls. Instead, they remind us that to determine whether a state criminal statute is categorically a CIMT they use a two-step process. First, the court identifies the elements of the statute of conviction. Because the IJ and the BIA have no special expertise Oregon criminal law, the Ninth Circuit does not defer to their opinion and they review this step of the analysis under de novo review – so anything goes. Second, they compare the elements of the statute of conviction to the generic definition of a CIMT and decide whether the conviction meets that definition. But, and this is important, “[t]he question at this step is “not whether some of the conduct prohibited by the statute is morally turpitudinous, but rather whether all of the conduct prohibited by the statute is morally turpitudinous.” Morales-Garcia v. Holder, 567 F.3d 1058, 1062 (9th Cir. 2009) quoted in Aguirre Barbosa v. Barr, No. 15-72092 slip op. at *7 (9th Cir. March 28, 2019). But what exactly is a CIMT?
That question has been bedeviling us all for about sixty-one years now. There is no clear definition. Here the Ninth Circuit tries to gives us a pretty good definition. “Despite that ambiguity, there is agreement that “moral turpitude” generally inheres in offenses involving fraud or those that are
But the Ninth Circuit found that Mendoza (California robbery is categorically a CIMT) does not apply here because Oregon’s robbery statute is materially broader than California’s robbery statute. It all goes back to cats in baskets. California’s cat fits comfortably in the basket. Oregon’s cat is overflowing; its head and tail are sticking out. More specifically, Oregon’s robbery statute encompasses
Until 2016 the BIA Held that a Theft Offense was not a CIMT where the Underlying State Statute Does not Include the Element of Intent to Permanently Deprive the Owner of the Property
You might be wondering why the Ninth Circuit is talking about intent to permanently deprive the owner of their property in a case about robbery. As there is no clear definition of what constitutes a CIMT, the BIA, and the Ninth Circuit are analogizing theft to robbery – you just have to go with it. Until 2016, the BIA held that a theft offense was categorically not a CIMT if the state elements of the offense did not include the element of intent to deprive the owner of the property permanently. In 2016, the BIA issued a precedential decision holding that for a theft offense to be a CIMT there was no requirement that the defendant intended to deprive the owner of the property permanently. Matter of Diaz-Lizarraga, 26 I.&N. Dec. 847 (BIA 2016). But Diaz-Lizarraga is not retroactive and because Mr. Aguirre Barbosa was served with his notice to appear before the BIA changed its interpretation Diaz-Lizarraga does not apply. Garcia-Martinez v. Sessions, 886 F.3d 1291, 1296 (9th Cir. 2018). But the Ninth Circuit cautioned that in determining whether a theft offense is an aggravated felony under INA § 101(a)(43)(G) there is no element requiring that the defendant intended to permanently deprive the victim of the property. Aguirre Barbosa, slip op. at *9 & n. 2. The Ninth Circuit concludes that under the “theft” framework for a CIMT, Oregon robbery is categorically not a CIMT.
Now robbery is different than theft. Robbery has an element of violence and that might make a huge difference. In order to convict a defendant of third-degree robbery in Oregon, the prosecutor only need
After determining that the crime was categorically not a CIMT, the Ninth Circuit then analyzed whether the statute was divisible. But, the government did not argue that the statute was divisible in their opening brief and the Ninth Circuit deemed that the government waived that argument. The Ninth Circuit remanded the case to the BIA to consider whether Mr. Aguirre Barbosa should be granted cancellation of removal.
Particular Social Group
Mr. Aguirre Barbosa also applied for withholding of removal arguing that his life or freedom would be threatened in Mexico as an individual “returning to Mexico [from] the United States [who] are believed to be wealthy.” Aguirre Barbosa, slip op. at *11. The Ninth Circuit found that the particular social group of “returning Mexicans from the United States” is too broad to be a cognizable social group. Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (per
Concurrence – the Concept of a CIMT is Unconstitutionally Vague
Judge Marsha Berzon wrote a concurring opinion “to join the chorus of voices calling for renewed consideration as to whether the phrase “crime involving moral turpitude” is unconstitutionally vague.” Aguirre Barbosa, slip op. at *12 (Berzon, J. concurring). Judge Berzon states: “The Supreme Court has recognized that “the failure of ‘persistent efforts …to establish a standard’ can provide evidence of vagueness.” Johnson v. United States, 135 S. Ct. 2551, 2558 (2015) quoted in Aguirre Barbosa slip op. at *13 (Berzon, J. concurring). Judge Berzon points out that this case revolves around the fact that because the Oregon statute covers temporary takings, it does not constitute a conviction for a CIMT. But because the BIA changed the definition of a theft offense as a CIMT in 2016 to include temporary takings, a noncitizen who is convicted of the same Oregon robbery statute after 2016 will likely be found to have been convicted of a CIMT.
Judge Berzon recognizes the importance of the principal of stare decisis. “As the Supreme Court has recognized, however, “stare decisis does not matter for its own sake. It matters because it ‘promotes the evenhanded, predictable, and consistent development of legal principles.” Johnson, 135 S. Ct. at 2563, quoted in Aguirre-Barbosa, slip op. at *14-15 (Berzon, J. concurring). In Johnson, the Supreme Court recognized that decisions under the residual clause have proven to be anything but predictable and that the same thing holds true for CIMTs. Since the Supreme Court has extended the “void-for-vagueness” doctrine to immigration proceedings in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) Judge Berzon believes the time is ripe to reconsider this issue.
Aguirre Barbosa v. Barr, No. 15-72092 (9th Cir. March 28, 2019).