A Weekly Analysis of Board of Immigration Appeals and Ninth Circuit Immigration Decisions
Never give up and challenge everything. If this week has taught us anything it has taught us to keep making the arguments no matter how ridiculous they seem at the time. This week the Supreme Court issued its decision in Pereira v. Sessions. (I blogged about this decision last week and you can access it at www.immigration-defense.com). In Pereira, the Supreme Court held that a Notice to Appear (NTA) that lacks the date of the hearing and the place of the hearing is not actually an NTA and does not stop time for non-lawful permanent resident cancellation of removal. The implications of this holding are huge. Kara Hartzler has written, “if a charging document lacks a time and place, it does not meet the definition of a “notice to appear” under § 1229(a)(1)(G) and thus does not confer jurisdiction on the immigration judge to issue an order of removal. And the objection that a federal court lacks subject-matter jurisdiction “may be raised by a party, or by a court on its own initiative, at any stage in the litigation.” Arbaugh v. U&Y Corp., 546 U.S. 500, 506 (2006).” While I expect that there will be plenty of pushback from the Government and while we will not know what the true implications of this case are for years, it is a very powerful tool for us to use. At the very minimum, people who have been ordered in absentia and who did not qualify for cancellation of removal due to the stop-time rule, who now qualify, should file motions to reopen within the next ninety days to apply for non-lawful permanent resident cancellation. The BIA did not issue any decisions this week, and the Ninth Circuit issued a criminal decision finding that Cal. Penal Code § 311.11(a) (possession of child pornography) and § 311.3(a) (sexual exploitation of a child) are overbroad and are not a categorical match to federal pornography statutes, so these convictions cannot be used for federal sentencing enhancement purposes. This case is important in an immigration context because it means that a California conviction for child pornography is likely not an aggravated felony under INA § 101(a)(43)(I). In other words, child pornography is not necessarily child pornography and a Notice to Appear is not necessarily a Notice to Appear. Keep challenging everything!
A California Conviction for Child Pornography is not a Categorical Match to the Federal Definition of Child Pornography
The California statutes penalizing child pornography are overbroad and are not categorical matches for the federal definition of child pornography. If you want to stop reading right now because you have enough information, I get it. Just realize that if your client is convicted of child pornography, it is not necessarily an aggravated felony under INA § 101(a)(43)(I). Of course, we already knew that because of the Ninth Circuit’s decision in Chavez-Solis v. Lynch, 803 F.3d 1004, 1006 (9th Cir. 2015) – which the Ninth Circuit cites in this case. (California statute prohibiting child pornography is not a categorical match to the definition of child pornography in INA § 101(a)(43)(F) because the statute is overbroad). For those of you who can handle the queasiness, this case is interesting.
In 2002, the State of California convicted Mr. Reinhardt of two misdemeanor counts: Cal. Penal Code § 311.11(a) (possession of child pornography) and § 311.3(a) (sexual exploitation of a child). In June 2015, the federal government convicted Mr. Reinhardt of 18 U.S.C. § 2252(a)(4)(B) (possession of child pornography). At the sentencing hearing, the parties disputed whether the prior California convictions constituted prior state conviction “relating to” the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography. If the state convictions were found to be related to federal child pornography, Mr. Reinhardt would be subject to a sentence enhancement for the 2015 federal offense.
The Ninth Circuit found that the categorical approach applied to the issue of the sentencing enhancement. It held that the federal statute explicitly defined the terms “child pornography” and “sexually explicit conduct.” It found that the California statutes were overbroad and indivisible and included “any lewd or lascivious sexual act.” They were not limited to the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography. Accordingly, it was not a categorical match and the courts could not impose a sentencing enhancement. It’s a disgusting 30-page decision all about child pornography. However, it just shows us how we need to challenge everything under the categorical approach. Moreover, it reinforces the legal argument that a California conviction for child pornography is not necessarily an aggravated felony under INA § 101(a)(43)(I).
United States v. Reinhart, No. 16-10409 (9th Cir. June 18, 2018).