Tenth Circuit Concludes UT Terroristic Threats Conviction is CIMT; Affirms Matter of G-G-S-

The Tenth Circuit has determined that a Utah terroristic threats conviction is a crime involving moral turpitude. “We hold that recklessly threatening substantial property damage with the intent of interrupting public access to a portion of a building is a CIMT.” The court also affirmed Matter of G-G-S- and determined that the agency need not consider a petitioner’s mental health when determining whether the petitioner has been convicted of a particularly serious crime.

The full text of the extremely sad case of Birhanu v. Wilkinson can be found here:

https://www.ca10.uscourts.gov/opinions/19/19-9599.pdf

BIA Finds UT Drug Statute Divisible

The Board of Immigration Appeals has determined that section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the identity of the specific “controlled substance” involved in a violation of that statute.

“It is undisputed that the respondent’s conviction for a class A misdemeanor under sections 58-37-8(2)(a)(i) and (b)(ii) of the Utah Code does not categorically fit within the definition of a controlled substance violation under section 237(a)(2)(B)(i) of the Act because, at all relevant times, schedules I and II of the Utah controlled substances schedules criminalized the possession of substances that are not included in the CSA. It is additionally undisputed that the statute of conviction is divisible, in part, because sections 58-37-8(2)(b) and (d) of the Utah Code, the relevant penalty provisions of the statute, mete out different punishments for violating section 58-37-8(2)(a)(i), depending on the circumstances underlying a particular violation. However, the parties disagree as to whether the Utah statute is divisible with respect to the identity of the particular controlled substance possessed in a violation of section 58-37-8(2)(a)(i)..”

:”However, after reviewing the language of section 58-37-8(2)(a)(i) of the Utah Code, relevant Utah jury instructions and case law, as well as the respondent’s record of conviction, we conclude that the identity of the specific controlled substance underlying a violation of section 58-37-8(2)(a)(i) is an ‘element’ of that statute, rather than a mere ‘means’ of violating it. “ First, the Board noted that “the plain language of section 58-37-8 reflects that penalties for drug offenses under this statute are not based simply on the schedule of the controlled substance involved in an offense. Rather, Utah must prove, and a jury must make findings regarding, a defendant’s criminal history and the identity and the amount of the controlled substance possessed to determine whether he was convicted of a second degree felony, third degree felony, a class A misdemeanor, or a class B misdemeanor. We therefore conclude that an element of section 58-37-8 is the identity of the specific controlled substance involved in a violation of that statute..” The Board also noted that the jury instructions for the statute call for the insertion of the name of the controlled substance at issue. Noting that the state courts permit separate prosecutions for concurrent possession of different substances, the Board noted that “[t]he respondent has not explained how, given the prohibition against double jeopardy, a defendant could be convicted of multiple counts of possession of a controlled substance where the defendant committed a single act of possession involving separate substances, if the identity of the specific controlled substance possessed was simply an alternative means of committing the offense, rather than an element of section 58-37-8(2)(a)(i).” Finally, the Board noted that the indictment in the instant case listed only one substance, another indicator that the substances are elements, not means.

The full text of Matter of Dikhtyar can be found here:

https://www.justice.gov/eoir/page/file/1358911/download

BIA Issues Precedential Decision Applying Supreme Court's Definition of Divisibility

The Board of Immigration Appeals (BIA) has set forth its third decision in Matter of Chairez, confirming that the definition of a divisible statute, as set forth in the Supreme Court's decision in Mathis v. United States, applies to immigration proceedings.  Accordingly, the BIA determined that section 76-10-508.1 of the Utah Code is overbroad with respect to the definition of a crime of violence because it criminalizes reckless conduct under subsection (1)(a).  Moreover, the statute is not divisible because Utah state case law suggests that the mental state is not something upon which a jury must unanimously agree to convict.  

The full text of Matter of Chairez can be found here:

https://www.justice.gov/eoir/file/898626/download

Tenth Circuit Re-examines the Immigration Consequences of a Utah Drug Conviction

The Tenth Circuit has remanded an immigration case in light of the Supreme Court's decision in Mathis v. United States to re-examine whether Utah's drug statutes are divisible, and accordingly, whether a conviction for possession of a controlled substance in Utah qualifies as a controlled substance violation.

The full text of Horng v. Lynch can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-9579.pdf

Tenth Circuit Construes Sexual Abuse of a Minor Aggravated Felony Ground

The Tenth Circuit has concluded that the sexual abuse of a minor aggravated felony contains a mens rea requirement.  Thus, a conviction for unlawful sexual activity with a minor in Utah (a strict liability offense) does not fall within the ambit of the aggravated felony conviction.  The court declined to defer to the Board of Immigration Appeals' decision in Matter of Rodriguez Rodriguez, finding that the decision did not address the issue of whether the aggravated felony provision included a mens rea requirement.  

The full text of Rangel-Perez v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9566.pdf

Ninth Circuit Issues Unpublished Decision Finding that a Utah Conviction for Sexual Abuse of a Minor is not an Aggravated Felony

An unpublished crimmigration/illegal reentry decision - my favorite type of unpublished decision!  In evaluating whether a Utah conviction for sexual abuse of a minor qualified as a sexual abuse of a minor aggravated felony, the Ninth Circuit noted that the statute criminalizes non-sexual conduct—such as kicking a boy’s genitals—and thus, the statute is broader than generic federal definition of sexual abuse of a minor. 

Switching gears, the court also addressed whether the intent requirement of the statute, the court stated that "the Utah Court of Appeals appears to treat the two prongs of the intent element as alternative means of satisfying a single intent element.  Thus, a jury does not need to agree on whether a defendant had an intent to harm or an intent to arouse his sexual desire to render a guilty verdict.  This conclusion is bolstered by the charging information in this case, which listed both prongs of the intent element."  Because the statute is not divisible with respect to the intent element, the modified categorical approach is not appropriate.

The lesson: Utah Code § 76-5-404.1(2) is not a sexual abuse of a minor aggravated felony.

The full text of US v. Morales-Landa can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/06/22/14-50460.pdf