Relief for Immigrant Convicted of CA Car Theft
SAN FRANCISCO (CN) - Vehicle theft does not constitute a crime of moral turpitude for the purposes of deporting an immigrant, the en banc Ninth Circuit ruled Monday.
The ruling concerns the modified categorical approach that federal courts use when trying to define a state crime under the lens of federal law, as they would need to do for example when sentencing a repeat offender.
When the U.S. Supreme Court set the bar for this process two years ago with the landmark ruling Descamps v. U.S, the justices ordered a lighter sentence for a repeat offender because he was convicted under a California law that it deemed too generic.
In the case at hand, an immigration judge ordered the deportation of Gabriel Almanza-Arenas after finding that his conviction for vehicle theft in California met the statutory bar as a crime involving moral turpitude.
The Board of Immigration Appeals had affirmed that finding, concluding that Almanza-Arenas had a duty he did not meet to produce evidence showing that he did not intend to permanently deprive anyone of the vehicle he stole.
After a three-judge panel granted Almanza-Arenas' petition for review, the federal appeals court agreed to rehear the case en banc and was unanimous Monday in again ruling for the immigrant.
The 25-page opinion emphasizes that the California Vehicle Code is an "indivisible statute, criminalizing both conduct that would and would not constitute a crime of moral turpitude."
In the vehicle-theft offense at issue, California distinguishes whether "(1) a person drove or took a vehicle not his or her own; (2) the owner did not provide consent to drive or take his or her vehicle; and (3) the person drove or took the vehicle with intent either to permanently or temporarily deprive the owner, whether with or without intent to steal the vehicle," according to the ruling.
The lead opinion blasts the third provision as overbroad for punishing "conduct that is categorically a crime of moral turpitude (permanently depriving) and conduct that is not categorically a crime of moral turpitude (temporarily depriving)." (Parentheses in original.)
Since the statute "criminalizes conduct that goes beyond the elements of the federal offense," it therefore "not a categorical match," according to the lead opinion by Judge N. Randy Smith.
The ruling notes that Descamps requires courts to determine whether the statute is divisible or indivisible, "by determining whether the statutes provide multiple, alternative means of committing the crime."
Here, the vehicle-theft statute boasts "disjunctive phrasing" that creates "different means of creating the one offense," Smith wrote.
"Because the indictment charged Almanza-Arenas with having intent either to permanently deprive or temporarily deprive the owner, the indictment reveals that (under state law) the two forms of intent are alternative means of accomplishing the same crime instead of two separate crimes," the ruling continues.
Smith said the section at issue is "therefore an indivisible statute."
The Ninth's sister circuits are divided as to whether the courts should look to state law to determine a statute's elements following Descamps," but Smith rejected a reading of the Supreme Court decision suggesting that "elements and means are one and the same."
"If the Supreme Court wanted to say that there was no material difference between the two terms, it knew how to do so," he said.
"Thus, means or methods of committing an offense, in this context, is nothing more than focusing on the facts, which we are forbidden to do in a categorical analysis."
Three members of the court joined a concurring opinion by Judge John Owens that calls upon courts to stop "tinker[ing] with the machinery of Descamps."
"While I join the majority opinion because it correctly applies our precedent, I do not agree that our precedent is correct," Owens said. "Under the current framework, hardened criminals avoid removal due to the vagaries of one state's law, while much softer individuals get shipped overseas because of the indictment template used in a different office. The only consistency in these cases is their arbitrariness."
Owens said "a better mousetrap is long overdue."
"While no regime is foolproof, this approach cannot be worse than what we have now," Owens added.
Insisting that the issue is a matter for federal lawmakers, Owens said "the Supreme Court may need to wipe the slate clean by junking the current state of law."
Judge Paul Watford wrote in another separate concurrence that, although he agrees that Almanza-Arenas's conviction is not for a crime involving moral turpitude, he disagrees that the statute at issue is indivisible.
"Given how frequently questions of divisibility arise, in both the criminal and immigration contexts, we need to apply a clear and easy-to-apply rule for distinguishing between statues that are divisible and those that are not," Watford said. "If not in this case then hopefully in another case soon, the Supreme Court will step in to provide further guidance."
Watford said that he would overrule 2014 precedent in Rendon v. Holder because its divisibility analysis is inconsistent with the approach in Descamps.
The circuit remanded Almanza-Arenas' case to the Board of Immigration Appeals for further proceedings.
Attorneys for the parties have not yet returned emails requesting comment.