IMMIGRATION LAW - NINTH CIRCUIT ANALYZES FRUSTRATING INTERSECTION OF CRIMINAL LAW AND IMMIGRATION LAW: United States v. Garcia-Lopez.

• Author: Adeyemi, Femi

IMMIGRATION LAW--NINTH CIRCUIT ANALYZES FRUSTRATING INTERSECTION OF CRIMINAL LAW AND IMMIGRATION LAW--United States v. Garcia-Lopez, 903 F.3d 887 (9th Cir. 2018).

The Immigration and Nationality Act (INA) provides that, a conviction for an aggravated felony renders a non-citizen subject to removal from the United States. (1) Recent case law holdings signify a marked shift in the law governing crimes of violence analysis and suggest that California robbery is not a crime of violence pursuant to 18 U.S.C. [section] 16. (2) In United States v. Garcia-Lopez, (3) the Ninth Circuit again analyzed whether robbery in California constitutes a crime of violence and held that it did not. (4)

Antonio Garcia-Lopez, a non-citizen, lived and worked in the United States for almost a decade before he was arrested. (5 ) The United States Immigration and Customs Enforcement (ICE) agency placed Garcia-Lopez in removal proceedings due to his conviction for an aggravated felony and he was deported. (6 ) Garcia-Lopez reentered the United States two more times after his initial deportation and was consequently charged with violating his removal order pursuant to 8 U.S.C [section][section] 1326(a) and 1326(b)(2). (7)

Garcia-Lopez initially pled guilty to the removal violation but subsequently sought to withdraw his plea. (8) In the lower court proceedings, Garcia-Lopez filed a motion to withdraw his guilty plea for the removal violation and also filed a motion to dismiss the indictment. (9) The district court denied Garcia-Lopez's motion to withdraw and declined consideration of his motion to dismiss. (10) Garcia-Lopez appealed the decision to the Ninth Circuit Court of Appeals, which vacated the district court's decision and remanded "with instructions to permit Garcia-Lopez to withdraw his guilty plea." (11)

It is well established that the enactment of admission regulations for entering into the United States is almost exclusively within Congress's power. (12) In 1952, Congress enacted the INA and significantly "reorganized the structure of immigration law." (13) While Congress delegated the authority for administration and enforcement of the INA to the Attorney General, it maintains exclusive control over legislative drafting. (14) In 1984, Congress revised the INA to include provisions aimed at deterring violent crimes. (15) Congress significantly changed the INA in 1996, when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). (16)

ICE was created in 2003 as a federal law enforcement agency focused on immigration and customs enforcement. (17 ) One of ICE's operational directorates, Enforcement and Removal Operations (ERO), targets public safety threats, such as convicted criminal non-citizens and violators of United States' immigration laws. (18) Though immigration proceedings are definitionally civil matters, such proceedings typically intersect with criminal proceedings. (19) When such an intersection exists, there are significant immigration consequences for the non-citizen defendant. (20) Criminal non-citizens are subject to different administrative proceedings depending on whether they are physically present in the United States. (21) Section 1182 of Title 8 of the United States Code sets forth the criminal grounds for inadmissibility of non-citizens. (22) On the other hand, Section 1227 of Title 8 sets forth the criminal grounds for deportability of noncitizens. (23)

There are currently nine criminal grounds for inadmissibility and eight criminal grounds for deportability. (24) Among these grounds, the category of aggravated felony is further broken down into sub-categories including crimes of violence. (25) Unlike a criminal prosecution, the government bears the burden of proving, by "clear and convincing evidence," that a non-citizen is deportable for criminal grounds when the non-citizen has committed a criminal offense in the United States. (26)

In Garcia-Lopez, the Court of Appeals for the Ninth Circuit addressed whether California robbery constitutes a crime of violence pursuant to the definition provided in the elements clause of 18 U.S.C. [section] 16(a) by analyzing recent case law on the issue. (27) The Court began by discussing the appropriate standard volves conduct that presents a serious potential risk of physical injury to another." Id at 2554. Reasoning that the judgment of whether a conduct "presents a serious potential risk of physical injury" invites "arbitrary enforcement by judges," the Court held that the provision was unconstitutionally vague as it violates the Due Process Clause of the Fifth Amendment. Id. at 2557-58. See also Johnson v. United States, 559 U.S. 133, 145 (2010) (defining physical force as violent force). The defendant in Johnson was a felon with five prior felony convictions, who was caught with ammunition, in violation of 18 U.S.C. [section] 922(g)(1) which made it unlawful for a felon to possess such items. Id. at 136. The defendant pleaded guilty and the government moved for sentencing under the Armed Career Criminal Act which, in relevant part, permits an "enhanced penalty for a person who violates [section] 922(g)." and has "three prior convictions for a violent felony." Id. at 137. A violent felony in this context is defined as "an offense that has as an element the use... of physical force against the person of another," or "burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at 133, 136. The government cited three of the defendant's prior convictions, aggravated battery, burglary of a dwelling, and battery, in support of this request. Id. at 136. The District Court agreed and sentenced the defendant to an enhanced prison term of fifteen years and five months, the Eleventh Circuit affirmed, and the Supreme Court reversed. Id at 137, 145. See also United States v. Dixon, 805 F.3d 1193, 1196 (9th Cir. 2015) (holding California robbery did not constitute violent felony under relevant federal statute). In Dixon, the defendant, a felon, was convicted of being a felon in possession of a firearm pursuant to 18 U.S.C. 8 922(g)(1). Id. at 1194. Because the defendant had "three prior convictions" for violent felonies, the district court sentenced him to fifteen years of imprisonment as required by the Armed Career Criminal Act statute. Id The defendant appealed the district court's decision on the grounds that his prior convictions were not "violent felonies [pursuant] to the [Armed Career Criminal Act]." Id. The Ninth Circuit held that the defendant's prior convictions did not meet the definition of violent felony per the Armed Career Criminal Act, vacated the sentence, and remanded the case. Id. See also 18 U.S.C. [section] 924(e)(1) (2018) (listing penalties for violating [section] 922(g)). The Code provides that "a person who violates section [section] 922(g)... and has three previous convictions by any court referred to in section 922(g)(1) ... for a violent felony... committed on occasions different from one another... shall be fined... and imprisoned not less than fifteen years." Id. See also United States v. Walton, 881 F.3d 768, 770 (9th Cir. 2018) (holding defendant's convictions did not constitute violent felony pursuant to federal statute). In Walton, the defendant-appellant was previously convicted of four "violent felonies" as defined by the Armed Career Criminal Act. Id. at 770. Furthermore, the Armed Career Criminal Act requires a mandatory minimum sentence under specific circumstances, which the defendant-appellant fell into due to his previous three violent felonies and the addition of a fourth offense. Id The lower court found all four convictions--assault with a deadly weapon in violation of California law, seconddegree robbery in violation of California law, first-degree robbery in violation of Alabama law, and attempted murder in violation of Alabama law--to be violent felonies under the Armed Career Criminal Act. Id. On appeal, the Ninth Circuit Court reversed and remanded, holding that "neither the first-degree robbery under Alabama law nor the second-degree robbery under California law were considered violent felonies under the "[Armed Career Criminal Act.]" Therefore, the defendant-appellant should not be subject to the mandatory sentencing provision. Id. at 774-75. See also Solorio-Ruiz v. Sessions, 881 F.3d 733, 735 (9th Cir. 2018) (holding defendant's conviction not removal eligible). In Solorio-Ruiz. the petitioner was convicted of carjacking, and evading a police officer, and was sentenced to twenty-one years and four of review of the district court's denial of the defendant's motion to withdraw his guilty plea. (2) * The Court utilized the "abuse of discretion" standard due to the erroneous view of the law the district court relied on in the lower court decision. (29) Moreover, because the Court determined that California robbery was not a crime of violence under 18 U.S.C. [section] 16, the Court concluded that there was a "fair and just reason" for the defendant to withdraw a guilty plea. (30)

The Ninth Circuit's decision in United States v. Garcia-Lopez resulted in much needed intra-circuit clarity and guidance in defining crimes of violence pursuant to federal statutes. (11) Furthermore, this decision signals a significant shift in crime-of-violence analyses in the Ninth Circuit, which could potentially provide new avenues from removal for some criminal non-citizens. (32) Subsequent cases should greatly benefit from the Court's cogent reasoning and establishment of a consistent approach. (33)

Moreover, due to this decision, the scope of offenses that could trigger removal of a criminal non-citizen has been potentially narrowed in the Ninth Circuit. (34) Such a narrow reading may have an impact on some categories of offenses which solely fall within 18 U.S.C. [section] 16(b) as well as...