Sunday, May 22, 2011

Case o' The Week: FYI, BIA DOA: Hoang and Agg Felony Analysis

A great week: not a single criminal defendant lost in the Ninth on direct appeal. (Although, admittedly, no direct appeals from a criminal case were decided last week).

The slow week gives a chance to look at a great Judge Betty Fletcher immigration case that has ramifications for criminal defense (and that reminds us of the difficult challenges involved in our Padilla-advisement responsibilities). Hoang v. Holder, 2011 WL 1885989 (9th Cir. May 17, 2011), decision available here.

Players: Decision by Judge B. Fletcher, dissent by Judge Bybee.

Facts: Hoang, a Legal Permanent Resident (“L.P.R.”), pleaded guilty to the Washington offense of “rendering criminal assistance in the second degree,” a Washington state misdemeanor. Id. *1. His plea agreement conceded that he drove a fellow who committed the felony of a drive-by shooting. Id. Hoang was sentenced to one year imprisonment. Id. Five years later, the (then) INS charged Hoang as being a removable agg felon. Id. The Immigration Judge (“IJ”) ordered him removed, and the Bureau of Immigration Appeals (“BIA”) upheld the IJ”s decision. Id. Hoang petitioned the Ninth.

Issue(s): “This case requires us to determine whether petitioner’s state misdemeanor conviction for rendering criminal assistance is a crime related to obstruction of justice and thus constitutes an aggravated felony under . . . 8 USC § 1101(a)(43)(S).” Id.

Held: “In sum, Hoang’s conviction for a misdemeanor by rendering criminal assistance in violation of Washington Revised Code § 9A.76.080 lacks the necessary actus reus and is not categorically obstruction of justice according to the definition provided in In re Espinoza–Gonzalez, [21 I&N Dec. 889 (1999)]. Batista–Hernandez, [21 I&N Dec. 955 (1997)] does not control this case. Nothing in the record of Hoang’s conviction establishes that he provided assistance to an individual who was subject to a pending judicial proceeding or ongoing police investigation, and so his conviction does not qualify as obstruction of justice under the modified categorical approach. We GRANT the petition for review and REMAND for further proceedings consistent with this opinion.”

Of Note: In a thoughtful analysis, Judge Betty Fletcher walks us through the Taylor categorical analysis of the Washington statute. Id. at *2. Turning first to the categorical analysis, Judge Fletcher explains that no statute clearly sets forth the elements of the federal obstruction of justice crime. Id. She turns to the previous BIA decision in In re Espinoza-Gonzalez – endorsed by the Ninth – that found the generic offense required obstruction of judicial proceedings (by harming or threatening witnesses, for example). Id. The Washington statute didn’t have that element – and no facts cured this omission for the modified categorical analysis – so the BIA was wrong when it concluded this was an aggravated felony. Id. at *6-*7.

In a pointed dissent, Judge Bybee questions whether a another BIA decision – Batista-Hernandez – undermines Judge Fletcher’s analysis.

Happily, the third member of the panel, Judge Fernandez, agrees with Judge Fletcher to Hoang's gain and the BIA’s loss.

How to Use: Though not intended this way, Hoang is an object lesson in the pitfalls that await criminal defense counsel wrestling with immigration consequences – particularly in the post-Padilla world. Think about Hoang’s defense counsel’s situation, representing an LPR charged with involvement in a drive-by shooting. First, defense counsel pleaded the client to a misdemeanor, so no worries about the “agg felony” dangers of Section 1101(a)(43), right? Wrong: subsection (a)(43)(S) defines agg felony as an offense relating to obstruction of justice “for which the term of imprisonment is at least one year.” Id. at *1. Hoang did a year in custody, so his misdemeanor conviction could have counted. See generally id. at *1 & n2.

Moreover, a decade later the BIA and Ninth are still at odds as to whether this offense even qualifies as an agg felony – so how was defense counsel to have advised Hoang in 2000? In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Supremes put the responsibility of advising our clients of immigration consequences squarely on our broad shoulders: Hoang illustrates just what a daunting responsibility that is.

For Further Reading: We’ve previously discussed the legendary friendship/feud of two Ninth titans: Chief Judge Kozinski and Judge Reinhardt. See picture above right, see also blog here. The pair rejoined their battle last week, in the capital habeas case of Leavitt v. Arave, 2011 WL 1844064 (9th Cir. May 17, 2011).

Don’t bother looking for the holding in Leavitt: just wince your way through the first paragraph of C.J. Kozinski’s majority decision and you’ll know which way the wind is blowing. Here's hoping dissenting Judge Reinhardt prevails in the en banc call.

Image of Chief Judge Kozinski and Judge Reinhardt from

Steven G. Kalar, Senior Litigator N.D. Cal. FPD. Website at


Labels: , , , ,


Post a Comment

<< Home