Friday, November 9, 2018
Page 3
Ninth Circuit Judges Urge Revision to ‘Uneven’ Immigration Rule
By a MetNews Staff Writer
Two Ninth U.S. Circuit Court of Appeals judges in a concurrence yesterday expressed their hope that, in the absence of congressional action, the Supreme Court will make changes to an immigration rule which has “uneven results” for violators of certain state crimes, based on the crimes’ elements in a particular jurisdiction.
Judge Consuelo M. Callahan wrote the concurring opinion, joined by Judge John B. Owens.
The majority opinion, by Judge William A. Fletcher, reverses a finding that two California immigrants were eligible for a cancellation of removal despite being convicted of sex crimes in state court.
The case petitions to the court, brought by Elisa de Jesus Menendez and Hector Rodriguez-Castellon, who were separately found guilty of violations of California Penal Code §288(c)(1) which prohibits lewd or lascivious acts against a child of 14 or 15 years of age by a person more than 10 years older than the victim.
Under immigration law, conviction for a crime of moral turpitude or a crime of child abuse halts the accrual of continuous residence; seven years of such residence are necessary for certain immigrants to be eligible for a cancellation of removal.
Both Menendez and Rodriguez-Castellon were determined by the Board of Immigration Appeals to be ineligible for that relief because it found that §288(c)(1) was a crime both of moral turpitude and of child abuse.
Categorical Approach
Fletcher wrote:
“To determine whether a state statute describes a removable offense, we apply the categorical approach.…The first step is to identify the elements of the state statute of conviction—here, Cal. Penal Code § 288(c)(1)….The second step is to compare those elements to the elements of the generic federal crime.”
He went on to say:
“[A] crime under § 288(c)(1) contains five elements: ‘(1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child.’ ”
Under California case law, he noted, the crime “requires that the defendant act ‘with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires’ of himself or of the minor….But the statute does not require that the defendant know that the minor is underage. Under California law, a good faith and reasonable mistake of age is a defense to statutory rape,…but it is not a defense to a charge under § 288(c)(1).”
Federal Law Compared
The jurist wrote:
“We have traditionally identified two different types of crimes involving moral turpitude: ‘those involving fraud and those involving grave acts of baseness or depravity.’…
“Because § 288(c)(1) requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have ‘evil or malicious intent.’…Section 288(c)(1) thus lacks the corrupt scienter requirement that is ‘the touchstone of moral turpitude.’ ”
Turning to the question of whether §288(c)(1) is a crime of child abuse, he said:
“The BIA defines ‘crime of child abuse, child neglect, or child abandonment’ as a ‘unitary concept’ that encompasses ‘any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.’ ”
“Section 288(c)(1) is broader than the generic definition of a ‘crime of child abuse’ in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence….Section 288(c)(1) has no such requirement….
“Second, § 288(c)(1) does not require proof of actual injury, or a ‘sufficiently high risk of harm,’ as an element of the offense. Section 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all.”
Callahan wrote:
“Because the opinion applies the categorical and modified categorical approach as set forth in controlling case law, we concur. However, we remain troubled that, here, immigration consequences and, in other settings, sentences should turn on a determination in the abstract of the breadth of the underlying state statute rather than the person’s actual offense. The present system forces courts to parse state statutes for determinations that no state legislator ever considered, and leads to uneven results, as the immigration consequences to individuals who committed basically the same offenses turn on the fortuity of the breadth of the state statute, which in most instances has nothing to do with the individual’s actual criminal conviction. If Congress will not, or cannot act…we can only hope that the Supreme Court will devise a more straightforward approach to this area of the law.”
The case is Menendez v. Whitaker, No. 14-72730.
Sarah V. Perez of Los Angeles argued for Menendez. Colin J. Tucker, a trial attorney with the U.S. Department of Justice’s Office of Immigration, represented the government.
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