Thursday, June 18, 2015
Panel Blocks Alien’s Removal for Using Laser Pointer in Courthouse
By KENNETH OFGANG, Staff Writer
A Filipino citizen convicted of pointing a laser pointer at a police officer did not categorically commit a crime involving moral turpitude, the Ninth U.S. Circuit Court of Appeals ruled yesterday, remanding to the Board of Immigration Appeals, which had ordered his removal from the country.
The BIA misconstrued California Penal Code §417.26 as applying only to laser devices used as dangerous weapons, the panel reasoned, when the law also applies to conduct analogous to simple assault, which does not involve moral turpitude, the panel reasoned.
John Coquico was convicted of the misdemeanor in 2006, for pointing the device at a police officer in the Alameda County criminal court building. He was convicted a year later of second degree robbery, a felony he conceded was a crime of moral turpitude.
Following the second conviction, the Department of Homeland Security sought his removal under a section of the Immigration and Nationality Act authorizing such action when an alien is convicted of two or more crimes involving moral turpitude, or CIMTs, in immigration law lingo.
In order to find that a crime is a CIMT, federal case law requires a determination that the crime, according to its statutory definition, necessarily includes elements of immoral conduct—known as the categorical approach—or that the crime can be committed in different ways, and that documents essential to the conviction, such as the jury verdict or plea colloquy, establish that it occurred in a way that constitutes moral turpitude.
The latter means is known as the modified categorical approach.
The immigration judge ruled for DHS, saying violation of §417.26 is a categorical CIMT because it involves “possession of weapons which are insidious instruments normally used for criminal purposes” and that possessing such weapons was “indicative of a readiness to do evil.” The BIA affirmed, holding that the crime is a CIMT because it can only be committed against a police officer and requires that the device be used in the manner of a deadly weapon.
Judge Diarmuid O’Scannlain, however, writing for the Ninth Circuit, said the statutory language is broader than the IJ and BIA acknowledged.
He emphasized that the statute bars pointing or aiming “a laser scope…or a laser pointer.” While a laser scope is a device that can be attached to a firearm, a laser pointer is defined in §417.25(b) as “any hand held laser beam device or demonstration laser beam product,” which is “certainly not” a deadly weapon, the judge explained.
The state, he added, has recognized the innocuousness of laser beams by treating the shining of a laser beam with the intent merely to harass or annoy as a minor offense, and expressly permitting possession of laser pointers on school grounds for educational purposes.
In a footnote, O’Scannlain rejected the government’s argument that the requirement that the device be pointed at a peace officer makes it a categorical CIMT. The BIA, he noted, has previously held that a crime committed against a peace officer is not a categorical CIMT in the absence of a requirement that it also include an element of actual harm.
Chief Judge Sidney Thomas and Judge M. Margaret McKeown joined in the opinion.
The case is Coquico v. Lynch, 09-73867.
Copyright 2015, Metropolitan News Company