The Ninth Circuit Court of Appeals upheld a decisision by the Bureau of Immigration Appeals (BIA) that solicitation for the purpose of prostitution is a crime of moral turpitude prohibiting an order allowing a foreign citizen to voluntarily depart from the country.

The Court held that since a prior decision of the BIA found that prostitution was a crime of moral turpitude and since there is no material difference between prostitution and solicitation for prostitution that solicitation under California Penal Code Section 647(b) is a crime of moral turpitude.

A crime of moral turpitude is one that “encompasses crimes that “are base, vile, or depraved —if they offend society’s most fundamental values, or shock society’s conscience. . . [S]uch offenses are those that are intrinsically wrong (malum in se) or require evil intent.” Conviction on two misdemeanors involving moral turpitdude provide cause for deportation. The defendant, in the matter before the court, Avinesh Anand Rohit, had another conviction for attempting to dissuade a witness, a crime of moral turpitude.

Secure Communities is now active in all or part of 44 states. Secure Communities is the Federal program that allows the Federal Government to use local arrest data to deport undocumented immigrants. It is based on biometric data such as fingerprints of arrestees. Close to 120,000 immigrants have been removed from the country using the Secure Communities program. Originally we were told that the program was voluntary. Then we were told that if a state signed a contract with the Federal government local governments could not opt out. Now we are being told that state governments do not have an option and they must participateWhile the original claim was that only felons would be deported the list of those removed include many who were convicted of misdemeanors and others for whom charges were dismissed,

Last week Secure Communities was enacted statewide in Connecticut and Maryland. “Baltimore Mayor Stephanie Rawlings-Blake said she was ‘deeply disappointed” about the program’s activation, but acknowledged that the city “plays no role in the implementation of the program and that [she has] no control over ICE’s actions.’” The Baltimore City Council condemned the program saying that it promoted “a culture of fear and discourage trust between local law enforcement and immigrant communities throughout the city.” The fear is that immigrants will be less likely to report criminal behavior if if it will result in deportation. This is particularly true in family matters such as domestic violence. A woman might want the beatings to stop but she need’s her husband’s financial support and does not want him deported. Likewise a mother may report her child’s drug use in order to get help for the child but does not want to expose the child or the family, for that matter, to deportation.

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Akio and Fusako Kawashima plead guilty to tax offenses. Akio plead to willfully making and subscribing a false tax return in violation of 26 U. S. C. §7206(1). Fusako plead to aiding and assisting in the preparation of a false tax return in violation of 26 U. S. C. §7206(2). They are lawful permanent residents, citizens of Japan. The Immigration and Naturalization Service started the deportation process following their convictions.

Under the Aliens and Nationality Code (8 U.S.C) anyone who has committed an aggravated felony is deportable. An aggravated felony is defined as one that either : “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” There is no doubt that the Kawashimas’ crimes involve fraud and deceit in which the government lost over $10,000. But they claim that they are only deportable for committing a tax offense if they were convicted on under clause two with violating 26 U.S.C. 7201. Since they did not plead to a violation of section 7201 they would not be deportable. This makes some sense since if section (i) refers to all crimes involving fraud and deceit section (ii) is duplicative and unnecessary. However the Supreme Court held that the plain language of clause (i) which reads:

The term ‘aggravated felony’ means—
. . . . .
“(M) an offense that—
“(i) involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000;

While the normal rule that is accepted by Justice Ginsberg in her dissent is that legislation should not be interpreted in such a way that two sections duplicate each other the majority held that clause one clearly refers to all statutes involving fraud or deceit with a loss of over $10,000 including tax offenses overcomes the normal rule of statutory interpretation avoiding duplicative sections.

The First Circuit Court of Appeals upheld the conviction of Thomas Kasenge for aiding and abetting the theft of his own identity. Kasenge’s housemate, Pius Mayanja visa expired and he was living in this country without proper immigration documentation. As a result he was unable to find work. Kasenger allowed Mayanja to use his driver’s license and social security card in exchange for a small fee.

Kasenge was charged with aggravated identity theft. He argued that he could not be convicted because he consented to Mayanja using the license and social security card.

The statute reads:

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Kasenge argued that since he allowed Mayanja to use his identification Mayanja had lawful authority to use the identification and therefore it was not illegal. But the Court, citing United States v. Yeifrin Rafael Ozuna-Cabrera ruled that the statute “does not require theft, or any other illicit method of procurement, of the means of identification.”

Kasenge also argued that since “any transfer, possession, or use of another person’s means of identification during and in relation to a § 1028A(c) felony is always illegal, it could never be done with lawful authority under our interpretation of § 1028A, thus rendering the phrase “without lawful authority” redundant.” However the court found numerous examples of “transfer, possession, or use of another person’s means of identification” to be legal such as the transfer of identification to an employer to allow an employer to process a job application. Thus it rejected Kasenge’s argument and upheld his conviction.

The unspoken statement is that since aggravated identity theft does not actually require theft of documents but only the “transfer, possession, or use of another person’s means of identification” of another person’s identity documents one can aid and abet another person’s use of your own documents.

Recently we seem to be having a run of double jeopardy cases. I don’t believe we should credit the Roger Clemens case for the run but it did seem to start with him. Today, we look at a rather unique Ninth Circuit case.

Gabriel Alvarez-Moreno was charged in Federal Court with two counts of transporting undocumented immigrants for profit. Shortly before his trial his attorney and the Assistant U. S. Attorney agreed that a jury trial would be waived and a court trial would be held. However, Alvarez-Moreno never signed the necessary documents and the judge did not voir dire him to insure that the waiver was voluntary. He was convicted on both counts.

Shortly after the trial and before sentencing his attorney moved to vacate the sentence based on the failure to comply with the waiver requirements. The government suggested that the motion be considered an untimely motion for a new trial or in the alternative that the judge sua sponte declare a mistrial.Alvarez-Moreno objected to the new trial motion. The court ordered a new trial and Alvarez-Moreno appealed.

The Ninth Circuit Court of Appeals ruled that there are three occasions when a new trial can be ordered without violating the Double Jeopardy Clause. First, when the defendant appeals a conviction and the court orders a new trial. By appealing the defendant waives his/her right against double jeopardy. Second, when a mistrial is declared pursuant to federal Rules of Criminal Procedure Section 26.3. It only operates to permit a second trial if manifest necessity exists and there is no judicial or prosecutorial overreaching aimed at triggering the mistrial. Furthermore the court held that the mistrial must be declared before the verdict is reached. Finally a new trial is permissible if it is as a result for a motion for a new trial is made by the defendant. Again a motion for a new trial acts as a waiver of double jeopardy claims. None of these applied to Alvarez-Moreno and therefore a second trial was prohibited.

Juan Leonardo Matus-Zayas was convicted on various counts of harboring and transporting undocumented immigrants. At his trial the government read into the record the depositions of three material witnesses which the court had previously released from custody.

On appeal the defense raised a number of objections to the use of the depositions at trial. The most important objection was that it violated the Confrontation Clause. However, since the defense failed to raise the issue at trial it was necessary to show that there was plain error in the admission of the transcripts instead of the more demanding de novo review.

The Confrontation Clause prohibits the admission of hearsay statements at trial unless the witness is unavailable and the opposing party had a chance to cross examine the witness prior to trial. Here the defense had a chance to cross examine the material witnesses at the deposition but the prosecution made no effort to show the witnesses’ unavailability at trial. The need to show unavailability is well known and it was plain error to admit the transcripts into evidence despite the lack of an objection from the defense.

However, the Ninth Circuit found that the admission of the transcripts did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings” and therefore refused to reverse the convictions.

New York and Illinois have withdrawn from Homeland Security’s Secure Communities Program. Under the Secure Communities Program ICE, a division of Homeland Security has a direct computer connection to each county or state to check the immigration status of each person arrested. Its stated goal is to deport noncitizens convicted of serious offenses. But in reality it gives them the chance to deport any noncitizen who is arrested whether or not the person is charged or convicted of any offense.

In Illinois studies showed that 30 per cent of those deported under the program had never been convicted of any crime and only 20 percent had been convicted of a serious crime.

California and Massachusetts are also considering withdrawal from the program.

One problem from the point of view of law enforcement and the immigration community is that Secure Communities inhibits the reporting of crime within the immigrant community. For example, an undocumented immigrant is less likely to report domestic violence if they know that the perpetrator is likely to be deported. Yes, they want the domestic violence to end. Yes, they want the perpetrator to receive treatment. But they don’t want their loved one, who they often depend upon for financial support, to be deported.

San Francisco County Sheriff Michael Hennessey is refusing to turn over those charged with minor misdemeanors to Homeland Security’s Immigration and Customs Enforcement (ICE) unit.

ICE through its Secure Communities Program obtains the fingerprints of everyone who is arrested and places a detainer on undocumented immigrants.

After former California Attorney General Jerry Brown agreed to join the Secure Communities Program, Sheriff Hennessey and the city of San Francisco attempted to opt out of the program but ICE refused to recognize local attempts to opt out.

While Secure Communities is supposed to provide a method to deport those charged with serious felonies many immigrants charged with misdemeanors and infraction have been deported under the program.

According to Sheriff Hennessey ICE detainers are not mandatory and he is free to ignore them. San Francisco is a Sanctuary City. As part of the Sanctuary City policy city officials are not supposed to cooperate with ICE in the deportation of those charged with misdemeanors. Sheriff Hennessey has developed a compromise between the Sanctuary City policy and ICE’s Secure Communities. He will not comply with the voluntary detainers in so far as they request those charged with minor misdemeanor such as petty theft, jay walking, or driving without a license, but he will comply with detainers when they are for those charged with major misdemeanors such as those dealing with violence, guns, or sex offenses.

It seems to me, that while Sheriff Hennessey is taking a step in the right direction, if the detainers are not mandatory, he has a duty to fully comply with the Sanctuary City policy and not turn over anyone charged with a misdemeanor to ICE.id

Agostino Accardo was convicted of making an extortionate extension of credit (18 U.S.C. § 892(a)). The Board of Immigration Appeals (BIA) found 18 U.S.C. § 892(a) to be an aggravated felony and ordered Accardo deported. Aggravated felonies include crimes of violence and the BIA ruled that 18 U.S.C. § 892(a) was a crime of violence.

Accardo appealed to the First Circuit Court of Appeals.

The BIA used a categorical approach to determine that Accardo was deportable. Under the categorical approach if a statute can only be violated by the use of violence no further investigation needs to be done, The immigrant is deported.

An extortionate extension of credit is defined by 18 U.S.C. § 891(6) as:

any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any
person.

The First Circuit reversed the finding of the BIA. Under the statute the crime can be violated if the parties to the agreement understand that the failure to timely make payments will result in action that violates the law and that harms the person’s reputation. Since activity that harms the reputation is not necessarily violent the categorical approach cannot be used.

The First Circuit remanded the case to the BIA for a determination of whether the second line of investigation is appropriate. When the categorical approach does not result in deportation the courts are mandated to use the modified categorical approach. Using this tool the court considers a limited number of documents (charging documents, the written plea agreement, the transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented) to determine if violence was used in commission of the crime. If so Accardo may still be deported.

Cesar Julio Salazar-Mojica was convicted of a felony assault with a deadly weapon in California in 1980. He was placed on probation. The probation was revoked in 1982 and he was sent to prison. When he was released from prison he was deported to Mexico.

On June 5, 2008 ¹he was arrested near the border and charged with returning to the United States after being deported in violation of 8 U.S.C. § 1326. While awaiting trial on the Federal charge, Salazar-Mojica applied to the state court to reduce his felony charge to a misdemeanor. The application was granted pursuant to California Penal Code Section 17(b). Never the less the Federal Court in determining the guidelines on the Section 1326 charge gave him a 16 level enhancement for a prior felony conviction involving violence. ²

Salazar-Mojica’s guideline range was for between 84 and 105 months. He was sentenced to 66 months.

The Ninth Circuit joined other circuits in finding that the reduction of a felony to a misdemeanor does not affect the enhancement. The crucial time according to the appellate court is the time of the deportation. If it is a felony at the time of the deportation it remains a felony for the purposes of the enhancement.