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 Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

The Ninth Circuit has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony if accompanied by a sentence of at least one year of imprisonment.

“Washington’s stolen vehicle statute also requires actual knowledge that the vehicle was stolen. The statute requires not only that the defendant ‘knowingly’ possess the stolen property but also have a state of mind of ‘knowing that it has been stolen.’” “And since actual knowledge requires an intent to deprive the owner of his property, the state statute also matches the generic offense’s intent requirement.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/23/21-1096.pdf

Eighth Circuit Finds that MN Third Degree Criminal Sexual Conduct does not Match Federal Definition of Rape

The Eighth Circuit has determined that Minnesota’s crime of third-degree criminal sexual conduct does not match the generic definition of rape because the Minnesota crime includes digital or mechanical penetration, which are outside the generic definition of rape.

The full text of Quito-Guachichulca v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/24/12/231069P.pdf

Fifth Circuit Determines that Louisiana Conviction for Accessory after the Fact is not an Obstruction of Justice Aggravated Felony

The Fifth Circuit has determined that a Louisiana conviction for accessory after the fact is not an obstruction of justice aggravated felony because the state offense is a general intent crime, while the generic definition of obstruction of justice requires a specific intent to interfere with the process of justice.

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

https://www.ca5.uscourts.gov/opinions/pub/23/23-60248-CV0.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 Dissuading a Witness is an Aggravated Felony

On remand from the Supreme Court, the Ninth Circuit reversed its precedent, and concluded that a California conviction for dissuading a witness matches the definition of an obstruction of justice aggravated felony. In so doing, the court rejected an argument that the California mens rea is broader than the federal mens rea.

The full text of Cordero-Garcia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/27/19-72779.pdf

Ninth Circuit Finds that Nevada Conviction for Attempted Lewdness with a Child under 14 is an Aggravated Felony

The Ninth Circuit has determined that a Nevada conviction for attempted lewdness with a child under the age of 14 is an attempted sexual abuse of a minor aggravated felony. In so doing, the court confirmed that its Medina-Villa definition of sexual abuse (involving abusive contact with a minor) is not irreconcilable with the Supreme Court’s decision in Esquivel-Quintana (addressing when statutory rape crimes qualify as sexual abuse of a minor aggravated felonies).

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/28/23-204.pdf

Eleventh Circuit Finds that Florida Lewd and Lascivious Battery Conviction is not Aggravated Felony

The Eleventh Circuit has determined that a Florida conviction under the 2008 version of the state’s lewd lascivious battery statute is a sexual abuse of a minor aggravated felony. “The least culpable conduct under § 800.04(4) is consensual sexual activity between adolescents who are 12 to 15 years old, with no minimum age required for the perpetrator. The statute therefore sweeps more broadly than the generic federal definition of ‘sexual abuse of a minor,’ which in the statutory rape context before us requires an age difference of at least one year between the perpetrator and the victim.”

The full text of Leger v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202210971.pdf

Eighth Circuit finds that Iowa Conviction for Possession of Child Pornography is not Aggravated Felony

The Eighth Circuit has determined that an Iowa conviction for possession or purchase of a visual depiction that shows a person under the age of 18 engaging in a prohibited sexual act or the simulation of a prohibited sexual act is not a sexual abuse of a minor aggravated felony. The Court observed that federal law requires “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in” the sexually explicit conduct, while Iowa Code § 728.12(3) does not. The Court remanded the case for further consideration of the petitioner’s argument that the conviction is also not a crime involving moral turpitude because it does not require that the defendant know the person in the image is underage.

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

https://media.ca8.uscourts.gov/opndir/24/05/231318P.pdf

Second Circuit Finds that NJ Conviction for Distribution of Controlled Substance near a School is not an Aggravated Felony

The Second Circuit has determined that a New Jersey conviction for distribution a controlled substance near a school is not an aggravated felony. The Court noted that the New Jersey statute criminalizes dispensing a controlled substance near a school, while the federal school zone prohibition does not. In addition, New Jersey criminalizes conduct on school buses, while the federal statute only criminalizes conduct within 1000 feet of a school’s real property. Third, the general federal distribution statute exempts distribution of a small amount of marijuana for no remuneration, while the New Jersey statute does not. The Court determined the statute was not divisible, and as such, was not an aggravated felony.

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/576dc939-def0-4fbb-a9ea-818732765688/3/doc/21-6265_22-6121_opn.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 that Arizona Armed Robbery Conviction is Theft-Related Aggravated Felony

The Ninth Circuit has determined that an Arizona conviction for armed robbery is a theft-related aggravated felony. The court concluded that “to establish armed robbery, the state must prove that the defendant, while armed with a real or simulated deadly weapon, (1) took property from a person or his immediate presence (2) against that person’s will (3) using or threatening force with the coexistent intent to take the property.”

The full text of Guzman-Maldonado v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/02/14/23-9.pdf

Eighth Circuit Finds Hiring a Person under 16 for Sex to be Aggravated Felony

The Eighth Circuit has determined that a Minnesota conviction for intentionally hiring or offering or agreeing to hire an individual who the defendant reasonably believed to be under the age of 16 years but at least 13 years to engage in sexual penetration or sexual contact is a sexual abuse of a minor aggravated felony.

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

http://media.ca8.uscourts.gov/opndir/23/12/223598P.pdf

Eleventh Circuit Finds that MA Armed Robbery Conviction is Theft Offense

The Eleventh Circuit has determined that a Massachusetts robbery conviction is a theft related aggravated felony. The offense of armed robbery under entails a number of elements. The prosecution must prove that (1) the defendant was armed with a dangerous weapon (though it need not be used); (2) the defendant either applied actual force or violence to the body of the person identified in the indictment, or by words or gestures put him in fear (i.e., the defendant committed an assault on that person); and (3) the defendant took the money or the property of another with intent to steal it.

“These elements, under the categorical approach, match the generic definition of theft. Generic theft requires taking the property of another without consent and with intent to steal. The third element of armed robbery under § 17— the taking of property with the intent to steal—matches two of the requirements of a generic theft offense—i.e., the taking of property with the criminal intent to deprive the victim of the rights and benefits of ownership. And the second element of armed robbery under § 17—the taking of property by the use of force or by putting the victim in fear—matches the generic theft requirement that the taking be without the consent of the victim. Massachusetts law teaches that ‘[t]he essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property . . . which is so within his reach . . . that he could, if not overcome by violence or prevented by fear, retain his possession of it. This understanding satisfies the ‘without consent’ requirement of generic theft.”

The full text of Kemokai v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202112743.pdf

Eighth Circuit Finds an Aggravated Felony Despite Loss of Only $1000 for Convicted Count

The Eighth Circuit has affirmed a finding that a lawful permanent resident was convicted of a fraud aggravated felony, even though the loss related to the sole count of conviction was approximately $1000. In so doing, the court looked to the overall restitution order (which included loss related to dismissed counts) in excess of $475,000 and her admission that she aided and abetted her mother’s scheme to defraud the State of California of that amount of money.

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

http://media.ca8.uscourts.gov/opndir/23/08/221739P.pdf

Eighth Circuit Finds Nebraska Shoplifting Conviction is not Theft Offense

The Eighth Circuit has determined that the Nebraska shoplifting statute has a broader mens rea than the generic definition of a theft-related aggravated felony. “Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense.”

The full text of Thok v. Attorney General can be found here:

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

BIA Addresses NY Burglary Conviction

The Board of Immigration Appeals (Board) has determined that a New York conviction for second-degree burglary of a building (as opposed to a dwelling) is overbroad when compared to the definition of a burglary aggravated felony because it criminalizes burglaries of inclosed motor trucks. The statute is also invisible with respect to the definition of a building, so any subsection criminalizing burglary of a building will not meet the definition of a burglary aggravated felony.

The conviction also does not qualify as a theft aggravated felony because it only requires the intent to commit a crime, and there is no requirement that a burglar take property or otherwise exercise control of property without consent.

However, the statute is divisible into different subsections, and the subsection criminalizing the display of a firearm during a burglary is a crime of violence aggravated felony because another person must be present to view the display of the weapon, and that person must feel threatened by the display. Thus, the display of the firearm necessarily involves the use, attempted use, or threatened use of physical force.

The analysis pertaining to the crime of violence drew a detailed dissent, attacking the majority’s analysis of New York criminal law.

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

https://www.justice.gov/eoir/page/file/1584666/download

Fifth Circuit Finds that PA Conviction for Receipt of Stolen Property Property is Aggravated Felony

The Fifth Circuit has determined that a Pennsylvania conviction for receipt of stolen property is an aggravated felony, rejecting the petitioner’s argument that the statute’s mens rea is lower than that required by the generic definition of a theft offense.

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

https://www.ca5.uscourts.gov/opinions/pub/21/21-60146-CV0.pdf

Ninth Circuit Finds that Washington Accomplice Liability Matches Federal Definition

The Ninth Circuit has determined that both Washington and federal generic accomplice liability law require prosecutors to meet the same standard of proof: they must show the accomplice had advance knowledge of the crime he facilitated. In so holding, the court overruled US v. Valdivia-Flores and US v. Franklin and held that second-degree robbery in Washington matches the definition of a theft aggravated felony.

The full text of Alfred v. Garland (including two concurrences and two dissents):

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/30/19-72903.pdf