Alfred v. Garland

• Decision Date: 22 September 2021
• Docket Number: No. 19-72903,19-72903
• Parties: McKenzy Alii ALFRED, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

13 F.4th 980

McKenzy Alii ALFRED, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

No. 19-72903

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2021 Seattle, Washington

Filed September 22, 2021

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.

Special Concurrence by Judge England;

Concurrence by Judge Rawlinson

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 categorical approach. Valdivia-Flores , 876 F.3d at 1207. The majority concluded that the accomplice liability mens rea under Washington law is broader than that required to establish accomplice liability under federal law. Id. at 1208. This overbreadth, in the majority's view, meant there could be no categorical match between the state statute of conviction and the generic federal definition of a drug trafficking crime.⁵ Id. at 1209. According to the IJ, Valdivia-Flores was nonetheless distinguishable because that case involved comparing the state offense to a federal generic offense defined by statute as opposed to an offense such as theft, which is defined with reference to federal case law.

The BIA affirmed, agreeing that the Washington statutes categorically qualified as aggravated felony theft offenses for immigration purposes, consequently rendering Petitioner removable. Petitioner then timely petitioned this court for review.

II

This court has jurisdiction under 8 U.S.C. § 1252, and we "review only the BIA's opinion, except to the extent that it expressly adopted portions of the IJ's decision." Rayamajhi v. Whitaker , 912 F.3d 1241, 1243 (9th Cir. 2019) (citation omitted). Where the BIA concurs with the reasoning employed by the IJ's analysis, both decisions are reviewed. Garcia-Martinez v. Sessions , 886 F.3d 1291, 1293 (9th Cir. 2018). Otherwise, however, a reviewing court must "confin[e] [its] review to a judgment upon the validity of the grounds upon which the [agency] itself based its action." SEC v. Chenery Corp. , 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943). This means that we "may affirm the BIA based only on ‘the explanations offered by the agency.’ " Toor v. Lynch , 789 F.3d 1055, 1064 (9th Cir. 2015) (quoting Arrington v. Daniels , 516 F.3d 1106, 1113 (9th Cir. 2008) ).

An agency's legal determinations are generally reviewed "de novo, subject to established principles of deference." Alanniz v. Barr , 924 F.3d 1061, 1065 (9th Cir. 2019). Factual findings, on the other hand, are reviewed for substantial evidence. Singh v. Holder , 656 F.3d 1047, 1051 (9th Cir. 2011). Under the substantial evidence standard, "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

III

A.

An alien convicted of an "aggravated felony" at any time after entering the United States is subject to removal under the INA. See 8 U.S.C. § 1227(a)(2)(A)(iii). DHS bears the burden of proving removability by clear and convincing evidence. 8 U.S.C. § 1229a(c)(3)(A). The INA defines an aggravated felony offense as, among other things, "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G). The INA additionally makes it clear that an attempt or conspiracy to commit an aggravated felony under 8 U.S.C. § 1101(a)(43) is also deemed an aggravated felony. See 8 U.S.C. § 1101(a)(43)(U). If any of Petitioner's three state convictions qualify as an aggravated felony for INA purposes, the BIA's removability decision was proper, and the other offenses need not be considered. See , e.g ., INS v. Bagamasbad , 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) ("As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.").

In evaluating whether a state statute qualifies as an aggravated felony for removal purposes, this court must "employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA." Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). The categorical approach requires comparison of "the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime" to determine whether the offense is an aggravated felony. See Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).⁶ Those statutory elements, and not the underlying facts of the particular crime involved, govern the inquiry into determining whether a categorical match is present. See generally , Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 1567–68, 198 L.Ed.2d 22 (2017).

The relevant generic offense here, as indicated above, is "a theft ... or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G). The Ninth Circuit has defined generic "theft" for INA purposes as "a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of the rights and benefits of ownership." Alvarado-Pineda , 774 F.3d at 1202 (quoting United States v. Corona-Sanchez , 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc )).

Accordingly, if the required comparison between this generic federal offense and the Washington statute reveals a categorical match, then immigration consequences are triggered and, thus, Petitioner is removable. See Roman-Suaste v. Holder , 766 F.3d 1035, 1038 (9th Cir. 2014). If we conclude, on the other hand, that the state statute reaches conduct falling outside of the generic federal definition, then the Washington statute and generic federal offense are not a categorical match. In other words, if the elements of the state conviction are broader than the generic federal definition, then the state conviction is not an aggravated felony, and Petitioner is not removable on those grounds. Mellouli v. Lynch , 575 U.S. 798, 135 S. Ct. 1980, 1986–88, 192 L.Ed.2d 60 (2015) ; Descamps , 570 U.S. at 257, 133 S.Ct. 2276 ; Ramirez v....