Weekly Blog for 5.10.19 Part II by Merle Kahn, Esq.
The Ninth Circuit issued (what I believe is its first decision) on the effect of California Proposition 64 (the legalization of cannabis in the State of California). It was not a good outcome. However, unlike the sign over hell according to Dante’s “Divine Comedy” (“Abandon all hope – Ye who enter here,” Dante, The Divine Comedy, Inferno, Canto III) I think there is still a lot of hope. In two immigration-adjacent cases (interpretation of the Armed Career Criminals Act) the Ninth Circuit further defined crimes of violence. But, let’s get to the cannabis case first, as it is quite interesting.
The Ninth Circuit Holds That a Misdemeanor Conviction for Possession for Sale of Cannabis is a Drug Trafficking Offense
The Ninth Circuit held that a conviction for possession for sale of cannabis that was reduced from a felony to a misdemeanor under Proposition 64 (legalization of cannabis in California) was still a drug trafficking offense. But I believe the Ninth Circuit may have made a legal mistake in not examining the revised state definition of cannabis. California’s definition is overbroad and is not a match to the federal definition. Second, the Ninth Circuit, in a footnote hints that had the noncitizen sought a different form of relief under Prop. 64, the immigration courts may have had to recognize the dismissal of the case in state court due to the legal invalidity of the original conviction. I believe that there are ways to use this opinion as a guide to how to represent our clients in these cases.
FACTUAL BACKGROUND
Claudia Prado is from Mexico. She was brought to the United States in 1972 when she was six months old. She has been living in the United States her entire life. In 1980 she became a lawful permanent resident, but she never naturalized. On May 28, 2014, she pleaded guilty to one count of felony possession for sale of marijuana; in violation of Cal. Health & Safety Code § 11359. The Superior Court of California placed her on probation for three years. (In November 2016, the voters in California passed Proposition 64 legalizing cannabis). In 2016, DHS placed her into removal proceedings. DHS charged her with removability under INA § 237(a)(2)(B)(i) (controlled substance offense); and, INA § 237(a)(2)(A)(iii) (aggravated felony for drug trafficking under INA § 101(a)(43)(B)). While her immigration case was pending, her conviction was reduced from a felony to a misdemeanor under Cal. Health & Safety Code § 11361.8 (e). Ms. Prado applied for asylum, withholding of removal, cancellation of removal, and protection under the Convention Against Torture (CAT). The IJ denied all forms of relief and found that although Ms. Prado’s conviction was reduced from a felony to a misdemeanor the conviction remained an aggravated felony conviction for immigration purposes.
Ms. Prado filed a pro se appeal with the Board of Immigration Appeals (BIA). The BIA dismissed the appeal. They found that Ms. Prado’s appeal was foreclosed by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014). (A conviction under Cal. Health & Safety § 11359 is categorically a drug trafficking offense). The BIA also dismissed Ms. Prado’s appeal of the IJ’s finding that she had been convicted of a controlled substance offense.
LEGAL ANALYSIS
First, Ms. Prado argued that she was no longer removable because the reclassification of her initial conviction eliminated its immigration consequences. Second, she argued that she was not convicted of a controlled substance offense because the California definition of cannabis was broader than the federal definition of cannabis and there was no categorical match under Moncrieffe v. Holder, 569 U.S. 184 (2013). Let’s take the second argument first because I find it more interesting and because the Ninth Circuit found no need to analyze it because they disagreed with Ms. Prado’s first argument.
The California Definition of Cannabis is Overbroad and is Not a Categorical Match
For a state controlled substance offense to be a removable offense under immigration law, the state definition of the controlled substance must match the federal definition of the controlled substance. The federal definition of cannabis includes an exception for “the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant or any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” 21 U.S.C. § 802(16)(B)(ii). The state definition does not include this exception, but otherwise tracks the federal definition. So, cannabis stalks are included in the state definition but not in the federal definition of cannabis. Cal. Health & Safety Code § 11018. What’s really interesting is that the Ninth Circuit did not address this issue. They held:
“Thus, we agree with the BIA that Prado’s initial conviction retained its immigration consequences and rendered her removable.*.*.*. We need not consider Prado’s argument, relying on Moncrieffe, that a conviction under the modified terms of § 11359 would not be a predicate for removal.”
Prado v. Barr, No. 17-72914, slip op. at *10 (9th Cir. May 10, 2019). I believe that what the Ninth Circuit failed to realize is that while Ms. Prado’s case was pending in the immigration court, the State of California essentially re-convicted her under a completely different statute. And, that statute is overbroad and is no longer a match to the federal definition of marijuana. Arguably, she was not convicted of a controlled substance offense. I have it on very good authority (counsel in the case) that Ms. Prado is going to be seeking rehearing en banc. So, if anyone is interested in filing an amicus brief, please contact the Boston College Legal Clinic.
The Immigration Courts Do Not Need to Recognize the Reduction of the Conviction Because Proposition 64 is a Rehabilitative Statute
The Ninth Circuit held that Proposition 64 is essentially a rehabilitative statute and the immigration courts do not recognize post-conviction relief under a rehabilitative statute. However, there is hope in footnote one and the Ninth Circuit gives us a guide as to handling these cases in the future. First, the Ninth Circuit lays down the law. “A conviction vacated for reasons ‘unrelated to the merits of the underlying criminal proceedings’ may be used as a conviction in removal proceedings whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not.” Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir. 2010).” Prado, slip op. at *7. Then they analyze whether Proposition 64 is a rehabilitative statute. They find that it is. “Prado’s conviction was reclassified for policy reasons of rehabilitation, rather than because it was substantively or procedurally flawed.” Id., at *8. But, don’t lose hope because I believe that if the state court dismisses the conviction for legal invalidity and seals it; then the statute is no longer a rehabilitative statute. Remember, in this case, the court reduced the conviction from a felony to a misdemeanor.
Here’s the language of the statute:
“A person who has completed his or her sentence for a conviction under Sections 11357, 11358, 11359, and 11360, whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.
(l) A resentencing hearing ordered under the Control, Regulate and Tax Adult Use of Marijuana Act shall constitute a “post-conviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law).” (Emphasis added).
Cal. Health & Safety Code § 11361.8(e). The language of the statute seems to clarify that may be dismissed and then sealed due to legal invalidity. That part of the statute is not rehabilitative.
What is really interesting, is that the Ninth Circuit seems to recognize this caveat and gives us a guide on handling these cases in the future. Remember, Ms. Prado, got her conviction reduced from a felony to a misdemeanor. The state designation of a felony or misdemeanor is irrelevant in immigration law. What is important, is that Ms. Prado was convicted of possession for sale – a drug trafficking offense. It’s still an aggravated felony (provided that cannabis is cannabis). Here is what the Ninth Circuit said in footnote 1:
“While the Act permits a person who has completed his or her sentence under CHSC § 11359 to apply to “have the conviction dismissed and sealed because the prior conviction is now legally invalid,” Prado neither requested nor received this form of relief.”
Prado, slip op. at *9-10 & n. 1. It’s possible that if you have the conviction dismissed and sealed because the prior conviction is now legally invalid, the immigration courts will have to recognize this form of post-conviction relief. That said, for those of you with cannabis cases in California, I would recommend using the more traditional forms of post-conviction relief.
Prado v. Barr, No. 17-72914 (9th Cir. May 10, 2019).
In Two Immigration-Adjacent Cases the Ninth Circuit Further Defines Crimes of Violence
The Ninth Circuit fine-tuned its definition of crimes of violence under the Armed Career Criminal Act (ACCA). These cases are important to immigration law because the language of the ACCA and the language of the INA are nearly identical when it comes to certain crimes. In one case the Ninth Circuit found that a federal conviction for robbery was categorically a crime of violence under the “elements” clause of 18 U.S.C. § 924(c)(3)(A). In the other case the Ninth Circuit found that an Arizona conviction for aggravated assault was categorically not a crime of violence as the minimum conduct required was reckless behavior. But, first let’s get to the definitions. The elements clause under the ACCA provides:
For purposes of this subsection the term “crime of violence” means an offense that is a felony and — has as an element the use, attempted use, or threatened use of physical force against the person or property of another…
If this language looks vaguely familiar, it is because it’s nearly identical to the definition of a crime of violence under 18 U.S.C. § 16(a). Section 16(a) is the definition we use to determine whether a crime is an aggravated felony crime of violence under INA § 101(a)(43)(F). The only difference is that the ACCA requires the offense to be a felony while 18 U.S.C. § 16(a) includes misdemeanors. Now that we have the definitions, let’s look at the cases.
A Federal Conviction for Robbery is Categorically a Crime of Violence
A federal conviction for 18 U.S.C. § 2111 (robbery) is categorically a crime of violence. The statute provides as follows:
“Whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value, shall be imprisoned not more than fifteen years.”
The Ninth Circuit noted that under the “elements” clause of the ACCA, the phrase “physical force” required for a conviction is violent force. Violent force is force that is capable of causing physical pain or injury to another person. United States v. Fultz, No. 17-56002, slip op. at *5-6 (9th Cir. May 10, 2019). The Ninth Circuit then uses the categorical approach to determine if the least of the acts criminalized under § 2111 would be a crime of violence under the “elements” clause. It found that it did. The Ninth Circuit noted that robbery even if done by intimidation alone is categorically a crime of violence. Id., at *7.
In support of its decision the Ninth Circuit cited to the recent Supreme Court decision in Stokeling v. United States, No. 17-5554 (U.S. Jan. 15, 2019). In Stokeling the Supreme Court held that “the elements clause encompasses robbery offenses that require the criminal to overcome the victim’s resistance.” Stokeling, slip op. at *2, cited in Fultz, slip op. at *9 & n. 2. That level of force is enough to constitute violent physical force. You can read my blog about Stokeling here. So now we know that robbery by intimidation is categorically a crime of violence.
United States v. Fultz, No. 17-56002 (9th Cir. May 10, 2019).
An Arizona Conviction for Aggravated Assault is Categorically not a Crime of Violence Because the Crime Can Be Committed with a Mens Rea of Recklessness
In our second immigration-adjacent case, the Ninth Circuit held that a conviction for Arizona Revised Statute (A.R.S.) § 13-12303(A)(1) (aggravated assault) was categorically not a crime of violence because it encompassed reckless conduct. For California practitioners, this case does not apply to California convictions for aggravated assault, because California law requires more than recklessness. United States v. Perez-Silvan, 861 F.3d 935 (9th Cir. 2017). The Ninth Circuit held that it had to follow its prior precedent in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc) (a conviction that encompassed reckless conduct was categorically not a crime of violence). The government argued that the Supreme Court had implicitly overruled Fernandez-Ruiz. The Supreme Court held that a misdemeanor conviction for recklessly assaulting a family member disqualifies a person from possessing a firearm because they had been convicted of a crime of violence under 18 U.S.C. § 922(g)(2). The Supreme Court found that the offense had, as an element, the use or attempted use of physical force. Voisine v. United States, 136 S. Ct. 2272 (2016). The question before the Ninth Circuit was whether Voisine overruled Fernandez-Ruiz.
The Ninth Circuit found that Fernandez-Ruiz was still good law in the Ninth Circuit. The Ninth Circuit noted,
“Because Voisine did not expressly overrule Fernandez-Ruiz, we must follow it unless Voisine “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The “clearly irreconcilable” standard is a high one, and as long as we can apply our prior circuit precedent without running afoul of the intervening authority we must do so.” Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018).”
United States v. Orona, No. 17-17508, slip op. at *6 (9th Cir. May 10, 2019). Always beware of Miller v. Gammie when you are trying to make innovative legal arguments in the Ninth.
The Ninth Circuit felt bound to Fernandez-Ruiz but noted that most other circuits that had decided this issue had extended Voisine’s holding to other “crime of violence” and “violent felony” definitions. So, now there is a circuit split and this issue might be going to the Supreme Court.
United States v. Orona, No. 17-17508 (9th Cir. May 10, 2019).