Saturday, November 17, 2018

Case o' The Week: A brace of categorical wins -- Menendez and CPC 288(c)(1) offenses

The Honorable Judge William Fletcher

  Taylor-ed to a T.
Menendez v. Whitaker, 2018 WL 5832974 (9th Cir. Nov. 8, 2018), decision available here.

Players:  Decision by Judge W. Fletcher. Concurrence by Judge Callahan, joined by Judge Owens.  

Facts: The Ninth considered two petitions for review of decisions of the Board of Immigration Appeals (BIA). Id. at *2. In both cases, the petitioners were aliens potentially subject to removal. The BIA found that the men had either a crime of moral turpitude, or a crime involving child abuse, because they had been convicted of California Penal Code Sec. 288(c)(1). Id. Section 288(c)(1) prohibits the commission of a “lewd or lascivious act” when the victim is a child of 14 or 15 years old, and the defendant is at least 10 years older than the child. Id.

Issue(s): Is California Penal Code Section 288(c)(1) either a “crime of moral turpitude” under 8 USC § 1182(a)(2)(A)(i)(I), or a crime “involving child abuse” under 8 USC § 1227(a)(2)(E)(i), precluding immigration relief?

Held: “We hold that § 288(c)(1) is neither categorically a crime involving moral turpitude or categorically a ‘crime of child abuse.” We grant Menendez’s and Rodriguez’s petitions for review. We remand both cases to the BIA for further proceedings consistent with this opinion.” Id.
  “We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply. Descamps v. United States, 570 U.S. 254, 258, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). The BIA therefore erred in concluding that Menendez’s § 288(c)(1) conviction triggered the stop-time rule and rendered her ineligible for cancellation of removal.” Id. at *7.
  “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i). The BIA therefore did not rely on an appropriate ground in refusing to reopen Rodriguez’s case.” Id. at *8.

Of Note: This is a terrific decision. Judge Fletcher carefully analyzes the full scope of state law that will sustain a conviction for Sec. 288(c)(1) offenses, and correctly concludes that the state offense is overbroad when compared to the federal definitions of “crime of moral turpitude” and “child abuse” offenses. These are not categorical matches, contrary to the BIA’s holdings.
  The case ends, however, on a troubling note. Judges Callahan and Owens, in their concurrence, bemoan the categorical and modified categorical analyses and outcomes that “turn on a determination in the abstract of the breadth of the underlying state statute rather than the person’s actual offense.” Id. at *8. Their concurrence ends with a call to action: “If Congress will not, or cannot act (see Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2016) (en banc) (Judge Owens concurring, joined by Judges Tallman, Bybee, and Callahan) ), we can only hope that the Supreme Court will devise a more straight-forward approach to this area of the law.” Id.
  As the composition of the Supreme Court changes, these calls to revisit Taylor become increasingly worrisome.  

How to Use: The obvious first cut for Menendez is in the context of Section 1326(d) motions, for illegal reentry cases. Note that for one of the petitioners, Rodriguez-Castellon, the Dimaya decision gave him the opportunity to come back before the Ninth – despite an earlier published opinion barring relief. See id. at *4 (discussing previous Rodriguez-Castellon decision). Dimaya may be the wedge that opens the door for Section 1326 clients, to mount attacks under this new Menendez decision.
For Further Reading: Respondent in Mr. Menedez’s case is Acting Attorney General Whitaker - for now. The legality of Mr. Whitaker’s appointment may now be before the Supreme Court. Litigants in the Court have asked that the name on a pending case should be Rod Rosenstein -- in their view, the DAG is is actually the acting attorney general.
  For an interesting piece on this fascinating litigation, see NBC article here

Steven Kalar, Federal Public Defender, ND Cal. Website at


Labels: , , , ,


Post a Comment

<< Home