2016020210225559751By Attorney Nancy E. Miller

Being convicted of a crime that immigration law categorizes as an aggravated felony is devastating.  The relief available to a non-citizen in this situation is extremely limited. An immigrant may face removal even if he has lived here most of his life and even if the crime categorized as an aggravated felony is neither aggravated nor a felony under state law.

Under subsection (F) of the Immigration & Nationality Act, a crime of violence for which the term of imprisonment is at least 1 year is an aggravated felony.  In a recent case, the Ninth Circuit Court of Appeals issued a decision that narrowed the definition of which crimes can be considered an aggravated felony as a crime of violence.

Hector Ramirez was convicted under California Penal Code §273a(a) and sentenced to more than 1 year in prison.  The Immigration Judge held that his conviction was an aggravated felony as a crime of violence and the Board of Immigration Appeals upheld that decision.  Ramirez timely appealed to the 9th Circuit.  The 9th Circuit held that §273a(a) is not a categorical crime of violence because it is broader than the generic federal definition in 18 U.S.C. §16.  It also found that the statute is not divisible.  Thus, the court found that the conviction under that statute is not an aggravated felony.

The court explained that, in order to assess whether a state conviction is an aggravated felony, it must employ the “categorical approach” to determine whether the state offense matches the “generic” federal definition of the relevant offense – which is 18 U.S.C. §16(a) or (b) here.  This is accomplished by “comparing the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition”.  As the court further explained, “in making this comparison, we must rely exclusively on the elements of the two crimes, ‘[b]ecause we examine what the state conviction necessarily involved, not the facts underlying the case, [and so] must presume that the conviction rested upon nothing more than the least of th[e] acts’ criminalized.’  We then determine whether even those acts are encompassed by the generic federal offense.”

As the court further discussed, “if the federal generic offense is not itself a crime, but rather a classification of crimes, like crimes[s] of violence, then we also compare the crime of conviction with other crimes determined to fall within that classification.  If, after conducting this categorical analysis, we conclude that the state statute of conviction criminalizes more conduct than the federal generic offense, then the state conviction does not fall within the federal definition of crime of violence for immigration purposes.”

The DHS had argued that the statute was a divisible statute and should be held to be a crime of violence under a “modified categorical approach” analysis.  The court, in addressing this argument, stated that a divisible statute lists, in essence, several different crimes.  If at least one of those crimes matches the generic version, a court must determine which crime the defendant was convicted of by looking at various documents of conviction to determine whether the alien was convicted of a set of elements that falls within the generic definition. As the court stated, the critical distinction is that while indivisible statutes may contain multiple, alternative means of committing the offense, only divisible statutes contain multiple alternative elements of functionally separate crimes.  The key question here is whether a jury would have to be unanimous in finding those separate elements.

In turning to CPC §273a(a), the court held that the statute criminalizes conduct that would not necessarily involve the affirmative use of force, including passive, negligent conduct.  As such, it is not a categorical match with the federal generic statute.  The court further concluded that the various parts of CPC §273a(a) constitute separate means of committing a single offense.  Therefore, the court concluded that CPC §273a(a) is an indivisible statute and is not a categorical match with 18 U.S.C. §16 and is not a crime of violence under the aggravated felony definition in the Immigration & Nationality Act.

The court has addressed the issue of crime of violence aggravated felonies several times in the recent past.  Therefore, many people who were previously ordered deported may be able to have their cases reopened as a result of these changes in law.  Of course, it is best to bring an experienced and knowledgeable immigration lawyer on board while the criminal case is ongoing to work with the criminal defense lawyer toward a result that is positive from both a criminal defense and an immigration standpoint.

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