Alfred v. Garland

Decision Date22 September 2021
Docket Number19-72903
PartiesMcKenzy Alii Alfred, Petitioner, v. Merrick B. Garland, United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

McKenzy Alii Alfred, Petitioner,
v.
Merrick B. Garland, United States Attorney General, Respondent.

No. 19-72903

United States Court of Appeals, Ninth Circuit

September 22, 2021


Argued and Submitted March 3, 2021 Seattle, Washington

Petition for Review from an Order of the Board of Immigration Appeals

Aaron Korthuis (argued), Northwest Immigrant Rights Project, Seattle, Washington; Alison Hollinz, Northwest Immigrant Rights Project, Tacoma, Washington; for Petitioner.

Jaclyn E. Shea (argued), Trial Attorney; Zoe J. Heller, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Johnnie B. Rawlinson and Jay S. Bybee, circuit Judges, and Morrison c. England, Jr., [*] District Judge.

SUMMARY[**]

Immigration

Granting McKenzy Alii Alfred's petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that Petitioner's convictions for robbery in the second degree and attempted robbery in the second degree, in violation of Wash. Rev. Code §§ 9A.56.190, 9A.56.210 and 9A.28.020, do not qualify as aggravated felony theft offenses under 8 U.S.C. §§ 1101(a)(43)(G), (U).

The panel concluded it was bound by United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which a divided panel determined that when considering the immigration effect of a Washington controlled substance conviction, accomplice liability is an implicit and indivisible component of the conviction that must be considered under the categorical approach. The Valdivia-Flores majority further concluded that the accomplice liability mens rea under Washington law (knowledge) is broader than that required under federal law (specific intent), and therefore, there could be no categorical match between the state statute of conviction and the generic federal definition of a drug trafficking crime.

Because, according to the Valdivia-Flores majority, it is well-established that aiding and abetting liability is implicit in every criminal charge, the panel explained that accomplice liability must be considered here. Observing that the Valdivia-Flores majority never reached the text of the drug trafficking statute, the panel concluded that its inquiry ended with accomplice liability as well. To this effect, the panel concluded that the overbreadth of Washington's accomplice liability means there can be no categorical match to the generic federal offense in this case either, and Petitioner's second-degree robbery convictions cannot constitute aggravated felony theft offenses. Accordingly, the panel concluded that Petitioner was not removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Specially concurring, District Judge England, joined by Judge Bybee, wrote that the panel relied on a theory of liability that assumes a crime was committed by someone else when it was undisputed that Petitioner himself- alone-committed the offense. Judge England also explained that it is quite possible that, at least in similar cases, no Washington conviction can be an aggravated felony at all. In such cases, future panels will never need to turn to the actual statute of conviction, but the exact same conduct may be an aggravated felony in a neighboring state. Judge England observed that Congress could not have intended such disparities.

Judge England wrote that the approach also puts attorneys in an untenable spot where they must argue against positions they would not normally advocate; the drive to show that state crimes of conviction are overbroad in comparison to their federal counterparts results in governments and prosecutors advocating for narrow readings of state criminal codes while defense counsel instead argue for expansion. Judge England wrote that all the confusion left in the wake of the categorical approach undermines the legitimacy of the third branch of government.

Concurring in the result, Judge Rawlinson wrote that she concurred in the result because, and only because, the result was compelled by the majority opinion in Valdivia-Flores. However, for the reasons explained in her dissent in Valdivia-Flores, Judge Rawlinson wrote that the conclusion that convictions for second degree robbery do not constitute aggravated felonies makes no sense legally or factually.

OPINION

ENGLAND, DISTRICT JUDGE

Petitioner McKenzy Alii Alfred ("Petitioner"), a native and citizen of the Republic of Palau ("Palau"), petitions for review of an order of the Board of Immigration Appeals ("BIA" or "Board") that found him removable as an alien convicted of an aggravated felony offense. Because we are bound by the decision in United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), we conclude that Petitioner's convictions for robbery in the second degree and attempted robbery in the second degree under Washington law do not qualify as aggravated felonies under §§ 101(a)(43)(G), (U) of the Immigration and Nationalization Act ("INA"), 8 U.S.C. §§ 1101(a)(43)(G), (U). The petition must therefore be GRANTED.

I

A.

In December 2011, Petitioner entered the United States from Palau pursuant to the so-called Compact of Free Association between the United States and several Pacific Island territories, including Palau. [1] Approximately seven years later, Petitioner pled guilty in Washington state court to one count of second-degree robbery and two counts of attempted robbery in the second degree in violation of Wash. Rev. Code §§ 9A.56.190, 9A.56.210 and 9A.28.020. According to his plea agreement, Petitioner-by himself- first tried to obtain cash from a teller at a credit union before going to a nearby coffee kiosk and taking money from the barista. He then attempted to carjack a vehicle operated by another third party. There was no evidence that anyone other than Petitioner committed these crimes, let alone any evidence that Petitioner acted as an accomplice to someone else, or was charged as an accomplice. Petitioner was eventually sentenced to fifteen-month concurrent terms of imprisonment on each count.

B.

During Petitioner's incarceration, the Department of Homeland Security ("DHS") issued a Notice to Appear ("NTA") alleging that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because, inter alia, he had been convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(G). Specifically, in this case, Petitioner had been convicted of a theft or burglary offense for which the term of imprisonment is at least one year. See 8 U.S.C. § 1101(a)(43)(G).[2]

Petitioner admitted the factual allegations in the NTA, but nonetheless contested removability. At a hearing before an Immigration Judge ("IJ"), the IJ agreed with the Government that Petitioner was indeed removable as having sustained theft-related aggravated felonies. [3] The IJ's findings were subsequently memorialized in writing.

According to the IJ, this circuit's decision in United States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014), controlled. In that case, another panel of this court held that the same state statute under which Petitioner was convicted was a categorical match to the INA's generic offense. Since Petitioner, like Alvarado-Pineda, had unquestionably been sentenced to a term of imprisonment of more than a year for each of his convictions, the IJ determined that he had been convicted of aggravated felonies. [4]

The IJ was unpersuaded by Petitioner's claim to the contrary based on the split decision of a later panel in Valdivia-Flores. There, the panel determined that when considering the immigration effect of a Washington conviction for possession of a controlled substance with intent to distribute, accomplice liability is an implicit and indivisible component of the conviction that must be considered under the...

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