Aggravated Felonies

RENTERIA-MORALES V. MUKASEY
--- F.3d ----, 2008 WL 5192056 (C.A.9),
The petitions of Irma Renteria-Morales and Maria Jesus Rivera de Alvarado, were consolidated by the Court of Appeals for the Ninth Circuit (CA9)
Irma Renteria-Morales
Renteria became a lawful permanent resident of the United States in 1990. On January 13, 1998, Renteria pleaded guilty to a violation of 18 U.S.C. § 3146 (Bail Jumping). On March 3, 1998, the government filed a notice to appear alleging that Renteria was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), as an aggravated felon. The government claimed that a violation of § 3146 constituted the aggravated felony of “failure to appear” under 8 U.S.C. § 1101(a)(43)(T). The IJ sustained the charge and pretermitted Renteria's application for cancellation of removal. Renteria appealed to the BIA. The appeal was dismissed. Renteria filed a petition for review.
To establish whether Renteria had been properly found removable as an aggravated felon, the CA9 first applied the categorical approach to determine whether the elements of the offense under § 1101(a)(43)(T) are broader than the elements of the crime under 18 U.S.C. § 3146 . The CA9 held that the following are elements of the offense under § 1101(a)(43)(T): (1) a failure to appear in court; (2) pursuant to a court order; (3) to answer to or dispose of a charge of a felony; (4) where the felony was one for which a sentence of two years' imprisonment or more may be imposed. The CA9 then transcribed the text of 18 U.S.C. § 3146, and held that the elements of this statute are broader than the elements of § 1101(a)(43)(T).
The CA9 then found it necessary to go beyond the mere fact of conviction and consider whether Renteria, by having been convicted under 18 U.S.C. § 3146, was necessarily convicted of all the elements of § 1101(a)(43)(T). (Modified categorical approach). The CA9 held that, according the the evidence available in the record, the government did not establish that Renteria was under a “court order” or that she was ordered to appear “to answer to or dispose of” a charge (see elements above). In consequence, the government failed to meet its burden of proof and petition for review was granted.
The dissent opined that it was reasonable to infer from the documentation provided by the government (criminal information) that Renteria was ordered by a judge to appear in court to answer or dispose of a charge of possession of marihuana.
Maria Jesus Rivera de Alvarado
Rivera became a lawful permanent resident of the United States in 1967. She pleaded guilty to a violation of 18 U.S.C. § 3146. She was sentenced to a $100.00 assessment and a term of imprisonment of twelve months and one day. The government charged Rivera under 8 U.S.C. § 1182(a)(2)(A)(i)(I) – crime involving moral turpitude; and under 8 U.S.C. § 1182(a)(2)(C) - “reason to believe illicit trafficking in a controlled substance.” The IJ sustained both charges. Respondent filed an application for cancellation of removal. The IJ found that Respondent's conviction under 18 U.S.C. § 3146, constituted an aggravated felony under 8 U.S.C § 1101(a)(43)(S) as an offense relating to obstruction of justice. Rivera appealed to the BIA the denial of her application for cancellation of removal. The BIA upheld the IJ's decision. Rivera filed a petition for review with the Court of Appeals for the Ninth Circuit (CA9).
To determine whether Rivera had committed an aggravated felony the CA9 applied its categorical approach to determine whether 18 U.S.C. § 3146, contains all the elements of 8 U.S.C § 1101(a)(43)(S). The CA9 held that the elements of obstruction of justice crimes (§ 1101(a)(43)(S)) include either active interference with proceedings of a tribunal or investigation, or action or threat of action against those who would cooperate in the process of justice. Espinoza-Gonzalez, 22 I. & N. Dec. 889, 893 (BIA 1999). Such crimes include an intent element, defined as a specific intent to interfere with the process of justice. Id.
The elements of § 3146, as interpreted by the Court of Appeals for the Ninth Circuit, are the following: the government ordinarily must prove that the defendant (1) was released; (2) was required to appear in court, (3) knew that he was required to appear, (4) failed to appear as required, and (5) was willful in his failure to appear.
Failure to appear before a court as required by the conditions of release, and failure to obey a court order to surrender for service, both constitute active interference with the proceedings of a tribunal. Section 3146 also includes the requisite mens rea: the specific intent to interfere with the process of justice.” Espinoza-Gonzalez, 22 I. & N. Dec. at 893. Therefore, the CA9 found that because § 3146 fulfills the elements of the generic offense of “obstruction of justice,” a conviction under § 3146 is categorically an offense relating to obstruction of justice under § 1101(a)(43)(S).
The CA9 held that the second component of § 1101(a)(43)(S), that the offense be one “for which the term of imprisonment is at least one year,” is a statutory requirement, rather than an element of the generic federal offense. In consequence, the court does not use the categorical and modified categorical approach to determine whether a petitioner has met any sentencing requirement specified in § 1101(a)(43)(S). Instead, the court uses tools of statutory construction to evaluate whether the petitioner's prior crime of conviction meets any statutory requirement in § 1101(a)(43) that are not elements of a generic federal crime. The CA9 also held that this phrase refers to the actual sentence imposed by the judge on the defendant convicted of the predicate offense, rather than the potential sentence that the judge could have imposed. Rivera was sentenced to a term of imprisonment of twelve months and one day, and therefore meets the statutory sentencing requirement in § 1101(a)(43)(S). Petition for review denied.