Denied Rehearing Rankles Some in 9th Circuit

PASADENA, Calif. (CN) - A panel for the 9th Circuit on Tuesday refused to revisit its finding that a man convicted of attempted burglary can't be deported because California law is too generic to mesh with federal guidelines.

The full court also rejected its own motion for an en banc hearing after failing to get the required number of votes, much to the dismay of several of its judges.

The move comes after the panel found in 2014 - relying on the U.S. Supreme Court's holding in Descamps v. United States - that because California law governing second-degree attempted burglary does not categorically match the federal generic attempted theft offense, the Board of Immigration Appeals could not use Carlos Rendon's state-court conviction as ground for deportation.

California's burglary law states that a person who enters a location "with intent to commit grand or petit larceny or any felony is guilty of burglary." Given the statute's generic "or any felony," the panel looked only at the statutory definition of Rendon's offense rather than the facts underlying his conviction to overturn the deportation order.

But in a dissent from the denial of an en banc rehearing, Judge Susan Graber - joined by seven of her colleagues - said the 3-judge panel used the exact opposite approach approved by the Supreme Court in Descamps.

"When applying the modified categorical approach, what must we do when we confront a textually disjunctive statute and are uncertain which statutory alternative underlies a previous conviction? The Supreme Court has answered that question in no uncertain terms: in the face of a disjunctive statute, we consult the documents of conviction to learn whether what the jury actually found, or what the defendant actually pleaded to, matches the federal definition of the relevant crime," Graber wrote.

She continued: "The court even told us what not to do: we need not parse state law to determine whether the statutory alternatives are 'elements' or 'means'; rather, we look to the documents whether the alternatives are elements or means. The panel's opinion simply ignores, without explanation, the court's clear command."

The panel's original decision ends up parsing state law after all, Graber said.

"It is not our job, as an intermediate appellate court, to overrule the Supreme Court's plain and applicable pronouncements, whether brilliantly or poorly reasoned," she added, and chastised her colleagues on the panel for both complicating future cases and ignoring the Supreme Court.

"Rendon's undue and unsupported complicating of the modified categorical approach will have substantial effects on our immigration and criminal cases. But my concern extends beyond even those considerable shores. I am troubled on a deeper level by the panel's decision simply to ignore an on-point holding of the Supreme Court and by the full court's decision not to rehear this case en banc to correct that egregious error," Graber concluded.

In a separate dissent, Judge Alex Kozinski admitted that examining the documents of conviction, known as Shepard documents, "comes with its own set of problems."

"The documents may not clearly reveal which statutory terms are, in fact, elements," Kozinski wrote. "And, even if they do, reliance on such documents will inevitably mean that convictions under the same state statute will sometimes be treated differently for federal law purposes.

"But there's no perfect way of handling disjunctive statutes, and the approach Descamps adopts seems to me as good as any," he continued. "It limits judicial fact-finding to the narrow and inescapable task of determining what an offense's elements are. And it doesn't require us to engage in the laborious and often inscrutable exercise of parsing state law."

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