Saturday, July 06, 2019

Case o' The Week: BIA Goes Own Way - Betansos and Plea Bargains for Categorical Analysis "Realistic Probability"

  Let’s Make a Deal (part of the categorical analysis . . .)
Betansos v. Barr, 2019 WL 2896367 (9th Cir. July 5, 2019), decision available here.

Players: Decision by Judge Murguia, joined by Judge Bea and DJ Bastian.   

Facts: The Board of Immigration Appeals (“BIA”) found Betansos ineligible for cancellation of removal. Id. at *2. His previous conviction for indecent exposure, under California Penal Code § 3141(1), was held to be a crime involving moral turpitude (“CIMT.”) Id. at *1.
   In Nunez, the Ninth had previously reversed an unpublished BIA decision on this precise question, holding that this offense was not categorically a CIMT. Id. The BIA, however, revisited the issue in a published decision, Matter of Cortes Medina, 26 I & N. Dec. 79 (BIA 2013). Id. In Cortes Medina, the BIA contradicted the Ninth’s decision in Nunez and found that Cal. Penal Code § 3141(1) was categorically a CIMT – this time offering rationales for its decision.

Issue(s): “We must now decide whether to defer to the BIA’s more recent determination in Cortes Medina that a violation of § 3141(1) categorically constitutes a CIMT. If we defer to Cortes Medina, we must also decide whether we will do so retroactively.” Id.

Held: “[W]e conclude that we must defer to Cortes Medina pursuant to the framework [set forth in the Supreme Court’s decision in Brand X]. We also conclude that Cortes Medina applies retroactively in Betansos’s case. We therefore deny Betansos’s petition for review.” Id. at *2.
   “Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous. Indeed, we did so in Nunez. However, pursuant to Brand X, we must defer to the BIA’s decision in Cortes Medina.” Id. at *8.

Of Note: The nub of this loss is Chevron deference to the BIA’s “categorical” categorization of indecent exposure as a CIMT. Id. at *5. It is a disappointing outcome, and there’s the sense that the Ninth isn’t too keen on the BIA’s determined effort to scoop up this offense as a CIMT.
   Of greater interest to criminal practitioners is Judge Murguia’s very thoughtful concurrence. Id. at *11 (Murguia, J., concurring). She acknowledges that the Supreme Court requires immigration petitioners to show a “realistic probability” that a statute is overbroad in its application and therefore not a categorical match. Id. (citing Duenas-Alvarez). Judge Murguia complains, however, that the BIA’s examples in its decision are decades-old. Id. Why are there so few published decisions to use in a categorical analysis? Because “[t]he vast majority – and nearly all –of criminal cases are resolved through plea bargains.” Id. Plea bargains don’t get published, so the BIA – and the Ninth – have no way to access how broadly a statute is really being used in the real world.
  Judge Murguia ends with a call to action: “Developing a mechanism for considering what conduct prosecutors charge and results in defendants accepting pleas may be particularly helpful in cases such as this one . . . .” Id. at *11.
  An intriguing invitation.

How to Use: Accept Judge Murguia’s invitation! The Taylor categorical goo largely exists because state D.A.’s, legislatures, and judges are too creative and too flexible when scooping in conduct – they (very) broadly interpret state criminal statutes to uphold convictions. Let’s add to that list the “hold your nose and down it goes” plea bargains as examples, when arguing that a state statute is overbroad for a categorical match. 
  Buddy up with your friendly state public defender, and start fishing for transcripts of plea deals illustrating the broad use of Taylor-contested state statutes. Under the Betansos concurrence, those plea transcripts will be welcome exhibits for federal categorical challenges.
For Further Reading: Judge Jay Bybee has announced that he is taking senior status at the end of this year. See article here
  If a nomination and confirmation makes it through, Judge Bybee’s position will be the tenth Ninth spot to be filled by President Trump.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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