Ninth Circuit Finds that CA Witness Intimidation is an Aggravated Felony

The Ninth Circuit has determined that a California conviction for dissuading a witness by force or fear qualifies an obstruction of justice aggravated felony if accompanied by a sentence of at least one year of incarceration. In so doing, the Court analyzed the conduct criminalized by all three subsections of California Penal Code section 136.1, and found they all match the generic definition of obstruction of justice.

The full text of Godoy-Aguilar v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/13/19-70960.pdf

Ninth Circuit Finds that CA Assault Statutes are not Crime of Violence

The Ninth Circuit has determined that a California conviction for assault with a deadly weapon is not a crime of violence because it includes reckless use of force. In so doing, the Court recognized that the Supreme Court’s decision in Borden states that a crime is not a crime of violence if it encompasses a mens rea in which the defendant acts deliberately, but consciously disregards an unjustifiable—though not practically certain— risk.”

The rationale of the decision should be equally applicable to assault with force likely to produce great bodily injury, assault with a firearm, and assault on a police officer or firefighter.

The full text of US v. Gomez can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/04/23-435.pdf

Ninth Circuit finds that CA Carjacking Conviction is not Crime of Violence

The Ninth Circuit has determined that has a California conviction for carjacking is not a crime of violence aggravated felony. “On a plain reading, section 215 defines carjacking more broadly than section 16(a) by not requiring the use of force.” The court further concluded that the use of fear required by the statute does not necessarily include the use of force. The court additionally concluded that the statute requires only a reckless mens rea, which is less than is necessary to match the definition of a crime of violence. “In sum, section 215 criminalizes carjacking committed through fear and without the use of force, as well as carjacking committed through the unintentional use of force.” The court further determined the statute is not divisible.

The full of Gutierrez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/02/21-130.pdf

Ninth Circuit finds that CA Carjacking is not a Theft Aggravated Felony

The Ninth Circuit has determined that a California conviction for carjacking does not include the requisite intent to steal to be considered a theft aggravated felony. “[A]n individual can be convicted of violating California’s carjacking statute even if they take a car from someone who has an inferior possessory interest in the car—or none at all.” The court also concluded that the statute is not divisible.

The full text of US v. Orozco-Orozco can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/12/22-50146.pdf

Ninth Circuit Finds Voluntary Manslaughter is Crime of Violence

The Ninth Circuit has determined that a federal conviction for voluntary manslaughter is a crime of violence. In a footnote, the court noted that its caselaw determining that California’s voluntary manslaughter statute is not a crime of violence is no longer tenable in light of intervening caselaw.

The full text of US v. Draper can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/10/17/17-15104.pdf

SCOTUS Construes Obstruction of Justice Aggravated Felony Ground

The Supreme Count has determined that the a conviction may constitute an obstruction justice aggravated felony even if the offense does not require that an investigation or proceeding be pending.

The full text of Pugin v. Garland can be found here:

https://www.supremecourt.gov/opinions/22pdf/22-23_d18e.pdf

Ninth Circuit Determines that CA Conviction for Child Neglect is Deportable Offense

The Ninth Circuit, sitting en banc has determined that that the terms “child abuse” and “child neglect” are ambiguous. The Court deferred to the e Board of Immigration Appeals’ (BIA) interpretation that the phrase “crime of child abuse, child neglect, or child abandonment” can include offenses that involve a mens rea of criminal negligence and acts or circumstances that create a substantial risk of harm to a child’s health or welfare, rather than causing an actual injury to the child. The Court also deferred to the BIA’s treatment of this phrase as a unitary category of crimes against children.

The court then proceeded to analyze the elements of Penal Code 273a(a). The least of the acts criminalized by the fourth branch of the statute requires proof that a defendant (1) had care of custody of a child, whether or not a parent or legal guardian; and (2) with criminal negligence, meaning in a manner that a reasonable person would have known creates a high risk of death or great bodily injury; (3) purposely put the child into an abusive situation in which the probability of serious injury was great.

The BIA defines the generic federal offense of “child abuse, child neglect, or child abandonment” to include the element of a mens rea of criminal negligence (a match to the second element of a section 273a(a) conviction), and the element of allowing a child to be placed in a situation that create a substantial risk of harm to a child’s health or welfare (a match to the third element of a section 273a(a) conviction).

The full text of Diaz Rodriguez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/08/13-73719.pdf

Ninth Circuit Finds CA Witness Intimidation is not Obstruction of Justice Aggravated Felony

The Ninth Circuit has determined that a California conviction for witness intimidation is not an obstruction of justice aggravated felony because it is missing the element of a nexus to an ongoing or pending proceeding or investigation. The court also noted that the statute was broader than the federal witness tampering statute because it lacks the requirement that an individual “uses intimidation, threatens, or corruptly persuades another person,” or “engages in misleading conduct toward another person.”

The court did note that subsections (a) and (c) of Penal Code 136.1 required malice, but subsection (b) (at issue in this case) did not. Nonetheless, the court also analyzed a case interpreting 136.1(a), and determined that the definition of malice “was not the kind of intimidation, threat, corrupt persuasion, or misleading conduct that would give rise to liability under 18 U.S.C. § 1512(b).”

The full text of Cordero-Garcia v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/15/19-72779.pdf

Ninth Circuit Finds CA Rape of Unconscious Person is not Aggravated Felony

The Ninth Circuit has determined that a California conviction for rape of an unconscious person is not an aggravated felony because it includes intercourse with someone whose consent was procured by fraud. The court found the statute to be overbroad and indivisible.

The court, however, gave the Board of Immigration Appeals another opportunity to decide if the generic definition of rape includes consensual intercourse obtained through fraud. It seems likely that this conviction will again be found to be an aggravated felony after the Board’s decision on remand.

The full text of Valdez Amador v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/09/13-71406.pdf

Ninth Circuit Holds that CA Voluntary Manslaughter Conviction is CIMT

The Ninth Circuit has determined that a California conviction for voluntary manslaughter is a crime involving moral turpitude because it requires at least reckless conduct and serious harm (death of the victim).

The full text of Ortiz Narez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/16/19-72039.pdf

Ninth Circuit Finds CA Arson Conviction is not an Aggravated Felony

The Ninth Circuit has determined that a California arson conviction is overbroad and indivisible compared to the arson aggravated felony ground because the mens rea is broader in the California law than the federal law. “[T]o be convicted under § 844(i), a defendant need not have intended to damage or destroy property covered by the statute. But he must at least have engaged in an intentional act that resulted in damage to or destruction of such property, and in doing so, he must have been subjectively aware of the risk that his actions would result in that harm. By contrast, a defendant may be convicted under California Penal Code § 451(b) for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm.”

The full text of Togonon v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/10/19-71693.pdf

BIA Concludes that CA Carjacking Conviction is COV

The Board of Immigration Appeals has determined - applying the Supreme Court’s decision in Stokeling - that a California carjacking conviction qualifies as a crime of violence.

The full text of Matter of A. Valenzuela can be found here:

https://www.justice.gov/eoir/page/file/1449661/download

Ninth Circuit Finds Impermissible Retroactive Application of CIMT Case Law on Indecent Exposure

The Ninth Circuit has determined that the Board of Immigration Appeals’ 2013 decision in Cortes Medina (finding that a California conviction for indecent exposure is a crime involving moral turpitude) presumptively cannot be retroactively applied to a 2011 conviction because the Ninth Circuit held in 2010 in Nunez that the conviction was not a crime involving moral turpitude.

The full text of Reyes Afandor v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

Ninth Circuit Finds that CA Joyriding Conviction is not Aggravated Felony

The Ninth Circuit has determined that a conviction under section 10851 of the CA Vehicle Code (taking a vehicle without consent, commonly referred to as “joyriding”) is overbroad and indivisible when compared to the generic definition of a theft offense. The court overruled its prior finding that the statute is divisible in Duenas-Alvarez.

The full text of Lopez-Marroquin v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-72922.pdf

Ninth Circuit Deems California Forgery Offense to Categorically be Aggravated Felony

The Ninth Circuit has determined that a California forgery statute is a categorical match to the definition of a forgery aggravated felony. “Thus, by definition, § 470a requires proof of a false writing capable of procuring fraud. A person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery.”

The full text of Escobar Santos v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/09/17-72334.pdf

BIA Reaffirms that CA Conviction for Assault with Force Likely to Produce Great Bodily Injury is CIMT

The Board of Immigration Appeals has reaffirmed that a California conviction for assault with force likely to produce great bodily injury is a crime involving moral turpitude.

The full text of Matter of Aguilar Mendez can be found here:

https://www.justice.gov/eoir/page/file/1375736/download

Ninth Circuit Concludes that CA Stalking Conviction is a CIMT

The Ninth Circuit has concluded that a California conviction for stalking is categorically a crime involving moral turpitude. The court noted that the statute requires a willful course of conduct that puts a person in reasonable fear for their safety. It also requires the defendant to have made a credible threat of harm. The court also concluded that the petitioner’s two stalking convictions, which related to conduct on different dates, did not arise of a single criminal scheme.

The full text of Orellana v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/28/19-70164.pdf

Ninth Circuit Finds that CA Accessory after the Fact to a Felony is not Agg Fel

The Ninth Circuit has determined that a California conviction for accessory after the fact to a felony is not categorically an aggravated felony related to obstruction of justice because it encompasses conducted related to crimes which are not the subject of an ongoing investigation or proceeding.

The full text of Valenzuela Gallardo v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/06/18-72593.pdf

Ninth Circuit Finds that CA Conviction for Attempting to Communicate with a Child with Intent to Commit Lewd or Lascivious Acts Upon the Child is Overbroad and Divisible as a CIMT

The Ninth Circuit has determined that a California conviction for attempting to communicate with a child with intent to commit a lewd and lascivious upon the child is not categorically a crime involving moral turpitude because it includes the intent to commit certain enumerated offenses that are not morally turpitudinous (such as kidnapping). However, the court determined that the statute is divisible among the 15 enumerated offenses. The court then consulted the charging document, with charged the petitioner with intent to commit a violation of section 288 of the Penal Code. The document did not specify a subsection of section 288, and the Ninth Circuit has previously held that a violation of section 288(c)(1) is not a crime involving moral turpitude because it lacked a good-faith reasonable mistake of age defense. However, that concern is negated because section 288.3 of the Penal Code (the attempting to communicate statute) requires the person to know or reasonably know that the victim is a minor. Hence, that statute provides the good-faith reasonable mistake of age defense missing in section 288(c)(1) itself.

The full text of Syed v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/17-71727.pdf

Ninth Circuit Finds that CA Murder is Overbroad and Divisible as an Aggravated Felony

The Ninth Circuit has determined that the California murder statute is overbroad when compared to the generic definition of murder because it includes murder of a fetus. However, the court determined that the statute is divisible between murder of a fetus and murder of a person, and therefore concluded under the modified categorical approach that the petitioner was convicted of an aggravated felony.

The full text of Gomez-Fernandez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/13/19-70079.pdf