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17c6866bb40f8af5c17f5f2408491143-A Global Context For 1326 Mitigation

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Hot Topics in Criminal/Immigration:Almanza-Arenas,Dimaya,andVoid for VaguenessKara HartzlerFederal Defenders of San Diego, Inc.
Enbanc decision issued Dec. 28, 2015In applying theTaylorcategorical approach, when is a disjunctive statute “divisible” such that courts mayproceed tothe modified categorical approach?
Background -Descamps
Adivisible statute contains “multiple, alternative elements”“Elements” are what a jury must unanimously agree onCourts can only look to the ROC to determine the “elements” of a conviction – not the “means” by which it was committed
Background -Descamps
Fn. 2: “Andif the dissent's real point is that distinguishing between‘alternative elements’and‘alternative means’is difficult, we can see no real-world reason to worry.Whatever a statute lists (whether elements or means), the documents we approved inTaylorandShepard—i.e.,indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime's elements.So a court need not parse state law in the way the dissent suggests:Whena state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.
Background –Chairez/Rendon
Descampsinvolved a “single, indivisible term”(“entry”)How doesDescampsapply to statutes with disjunctive terms?(“x, y, or z”)Matter ofChairez,26 I&N Dec.349 (BIA 2014):Must look to state law to determine if jury unanimity requiredIf in § 237, burden on DHS
Background –Chairez/Rendon
Rendon v. Holder,764 F.3d 1077 (9thCir. 2014):can only use ROC when “state law requires” jury to decide between alternativesMust look to state case law and jury instructions
Background – Dissent toRendonr’hring
Nine judges dissent from denial of rehearing inRendonJ. Graber:Descampsfn. 2 means that disjunctive = divisible, doesn’t turn on means/elementsJ.Kozinski:turns on means/elements but you should “peek” atSheparddocuments to determine elements
Non-LPR with Unlawful Taking of Vehicleappliedfor 42b Cancellation§ 10851= “temporary or permanent”Matter of Almanza-Arenas,24 I&N Dec. 771 (BIA 2009):statute is divisible and applicant for relief has burden to show temporary takingInconclusive record is not enough
Almanza-Arenas:9th Panel Decision
Two holdings:1. § 10851 not divisible underRendonEven if it were,Moncrieffeoverruledrule inYoungand heldthatan inconclusive recordestablisheseligibility for relief
Almanza-Arenas:EnBanc Decision
En banc panel included 5 judges who had signed on to Judge Graber’s dissentUpheld means/elements in 10-1 decisionConcur. (4 judges): Congress should ditch categorical approachConcur. (J. Watford): Would have found divisible but that inconclusive record established eligibility for relief
Steps for Determining Divisibility
First step: look at text of statute:“Anyperson whodrives or takes a vehicle not his or her own,without the consent of the owner thereof, andwith intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of thevehicle”
Steps for Determining Divisibility
Second step: Confirm elements by examiningSheparddocs perDescampsfn2Here,prosecutor charged“intenteither permanently or temporarily todeprive”Becauseprosecutors can’t charge two offenses in same count, must be means, not elementsButprosecutors don’t always charge correctly, so may have to look beyondSheparddocuments
Steps for Determining Divisibility
Third step: Verify elements by looking to state case law and jury instructionsInRendon,where statute didn’t provide a “clear answer,” court looked to state law.Because jury instructions resolved that temp/permanent distinction is a “means,” majority found it need not look to state case law
Footnote 2
Majority readsfn2 as a“guide”tolook toSheparddocuments if thereis “difficultyin distinguishing between the elements andmeans”Recognized circuitsplit with 10th and 5th Circuits
Determining Divisibility
Statute’s text (new)Sheparddocs (new)State law (Rendon/Chairez)Will judges incorrectly stop after finding statute divisible under step 1 or 2?Will they skip to step 3?How can we use steps 1 and 2?
Other Questions
Who has the burden to prove jury unanimity is required?Should it turn on whether the person is deportable/inadmissible?What’s the law on second issue of eligibility for relief?
Looking Ahead
SG agrees cert should be granted on divisibility: Mathis v. U.S., Case No. 15-6092Upcoming cases on2nd issue of eligibilityfor reliefAG currently reconsideringMatter ofChairez
Dimayav. Lynch
Applied Supreme CourtJohnsondecision (finding ACCA residual clause void for vagueness) to 18 U.S.C.§16(b)AgfelCOV must have anelementof force – not just “risk” of forceOIL petition for rehearing pending
What CA Crimes Fall Under § 16(b)?
Residential burglary § 459Robbery§ 211 (but watch for theft)Kidnapping § 207False Imprisonment (various)Lewd & Lascivious with 14-15 § 288(c)Sexual Battery§ 243.4
What Else Is Void for Vagueness?
Matter of Valenzuela-Gallardo(obstruction of justice)CIMTs?Modified categorical approach?





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17c6866bb40f8af5c17f5f2408491143-A Global Context For 1326 Mitigation