Velasquez-Rios v. Barr, 102820 FED9, 18-72990

Docket Nº:18-72990, 18-73218
Opinion Judge:GOULD, CIRCUIT JUDGE.
Party Name:Eduardo Velasquez-Rios, Petitioner, v. William P. Barr, Attorney General, Respondent. Sanjay Joseph Desai, AKA Sanjay Joseph Andrews, AKA Joao Sergio Karamano Soverano, Petitioner, v. William P. Barr, Attorney General, Respondent.
Attorney:Carlos A. Cruz (argued), Alhambra, California, for Petitioner Eduardo Velasquez-Rios. Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California; Katherine Brady and Rose Cahn, Immigrant Legal Resource Center, San Francisco, California; Khaled Alrabe, National ...
Judge Panel:Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and David A. Ezra, District Judge.
Case Date:October 28, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Eduardo Velasquez-Rios, Petitioner,

v.

William P. Barr, Attorney General, Respondent.

Sanjay Joseph Desai, AKA Sanjay Joseph Andrews, AKA Joao Sergio Karamano Soverano, Petitioner,

v.

William P. Barr, Attorney General, Respondent.

Nos. 18-72990, 18-73218

United States Court of Appeals, Ninth Circuit

October 28, 2020

Argued and Submitted September 4, 2020 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. A200-154-815, A096-656-434

Carlos A. Cruz (argued), Alhambra, California, for Petitioner Eduardo Velasquez-Rios.

Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California; Katherine Brady and Rose Cahn, Immigrant Legal Resource Center, San Francisco, California; Khaled Alrabe, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts; for Petitioner Sanjay Joseph Desai.

Alexander J. Lutz (argued), Trial Attorney; Jonathan Aaron Robbins (argued), Senior Litigation Counsel; Anthony C. Payne and Anthony P. Nicastro, Assistant Directors; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and David A. Ezra, [*] District Judge.

SUMMARY[**]

Immigration

The panel denied separate petitions for review filed by Eduardo Velasquez-Rios and Sanjay Joseph Desai of decisions of the Board of Immigration Appeals, and held that an amendment to § 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(i).

Velasquez-Rios and Desai were both found ineligible for cancellation of removal because they had been convicted of offenses under § 1227(a)(2)(A)(i), which-as relevant here-makes an alien removable if he or she committed a crime involving moral turpitude for which a sentence of one year or longer may be imposed. Subsequently, on January 1, 2015, the California legislature enacted § 18.5, which reduced the maximum jail sentences for misdemeanor convictions to 364 days, and on January 1, 2017, the legislature amended § 18.5 to apply retroactively.

In Matter of Velasquez-Rios, 27 I. & N. Dec. 470 (BIA 2018), the BIA held that, for purposes of § 1227(a)(2)(A)(i), the maximum sentence available is determined by looking at the date of conviction. The BIA thus denied Velasquez-Rios' appeal because he could have been sentenced to up to one year of imprisonment when he was convicted, and the BIA later denied Desai's appeal for the same reason. Petitioners challenged Matter of Velasquez-Rios in this court, contending that the amendment to § 18.5 should apply to their cases retroactively such that they would be eligible for cancellation.

In holding that the amendment to § 18.5 cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i), the panel rejected Petitioners' contention that the BIA erred by relying on two sentencing decisions: McNeill v. United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). In McNeil, the Supreme Court held that retroactive changes to North Carolina's state-law sentencing scheme did not change the historical fact that the defendant had been convicted of two felonies. In Diaz, this court concluded that California's reclassification of Diaz's two felony convictions as misdemeanors did not invalidate his enhanced sentence under 21 U.S.C. § 841. This court held that § 841 called for a backward-looking inquiry to the date of conviction, rather than the current state of California law, and that the triggering event under § 841 was when the two felony offenses had "become final."

Petitioners argued that Diaz is inapposite because § 1227(a)(2)(A)(i) lacks any explicit reference to finality. In rejecting that contention, the panel explained that: 1) the holding in Diaz was not limited to apply only where the operative statute is triggered by the finality of a conviction; and 2) even if the language of § 1227(a)(2)(A)(i) does not explicitly refer to the "finality" of a conviction, the language of § 1229b(b)(1)(C)-the cancellation of removal statute that cross-references § 1227(a)(2)-clearly calls for a backward-looking inquiry by requiring that an alien "has not been" convicted of an applicable offense.

The panel further explained that its approach aligns with the Supreme Court's admonishments that federal laws should be construed to achieve national uniformity, and explained that its decision avoids the "absurd" results described in McNeill that would follow from Petitioners' approach, under which an alien's removability would depend on the timing of the immigration proceeding. In addition, the panel observed that it declined to give retroactive effect to § 18.5 where it appeared that the purpose of the amendment was to circumvent federal law. The panel also rejected Petitioners' remaining counterarguments.

Finally, the panel discussed the concept of federalism, observing that, for more than a century, it has been universally acknowledged that Congress possesses sweeping authority over immigration policy. Accordingly, the panel held that federal law standards cannot be altered or contradicted retroactively by state law actions, and cannot be manipulated after the fact by state laws modifying sentences that at the time of conviction permitted removal or that precluded cancellation.

OPINION

GOULD, CIRCUIT JUDGE.

In 2017, California's legislature retroactively reduced the maximum sentence available for misdemeanor convictions from one year to 364 days. In the cases appealed to us through Petitions for Review of the agency decisions, the Board of Immigrations Appeals ("BIA") considered whether, for purposes of 8 U.S.C. § 1227(a)(2)(A)(i) (section 237(a)(2)(A)(i) of the Immigration and Naturalization Act ("INA"))-which provides a basis for rendering an alien ineligible for cancellation of removal proceedings under § 1229b(b)(1)(C)-that reduction could be applied retroactively. The BIA decided in Matter of

Velasquez-Rios that it could not apply that statutory change retroactively. 27 I. & N. Dec. 470 (BIA 2018). In these consolidated appeals, Petitioners Sanjay Desai and Eduardo Velasquez-Rios contend that decision was in error, arguing that the BIA should have applied California's sentence reduction retroactively for purposes of cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. For the following reasons, we deny both petitions and affirm the BIA.

I

Eduardo Velasquez-Rios is a native and citizen of Mexico who unlawfully entered the United States at an unknown time and place.1 On July 22, 2002, he pled guilty to misdemeanor forgery under California Penal Code § 475(a) and was sentenced to twelve days in the Orange County Jail, eight days of community service, and a fine. At the time of conviction, Velasquez-Rios was eligible for a maximum sentence of "not more than one year." Cal. Penal Code § 473.

Sanjay Joseph Desai is a citizen and national of India who was admitted to the United States in 2000 as a nonimmigrant visitor with authorization to remain for six months. After overstaying his visa, Desai was convicted of misdemeanor grand theft under California Penal Code § 487, for which he was sentenced to 13 days in jail and 36 months of summary probation. At the time of conviction, Desai was eligible for a potential sentence of one year of imprisonment. Cal. Pen. Code §§ 487, 489(b).

The Department of Homeland Security initiated removal proceedings against Desai in 2011 and against Velasquez-Rios in 2012. Petitioners separately applied for cancellation of removal under 8 U.S.C. § 1229b(b). The immigration judges ("IJ") pretermitted both applications based on 8 U.S.C. § 1229b(b)(1)(C). That provision states, in relevant part, that "[t]he Attorney General may cancel removal of . . . an alien who is inadmissible or deportable from the United States if the alien . . . has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title." 8 U.S.C. § 1229b(b)(1)(C). The IJs determined that Desai's forgery conviction and Velasquez-Rios' theft conviction constituted "offense[s] under" § 1227(a)(2)(A)(i), which says: (a) Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

(2) Criminal offenses

(A) General crimes

(i) Crimes of moral turpitude

Any alien who-

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

8 U.S.C. § 1227(a)(2)(A)(i). Because Desai and Velasquez-Rios were convicted of "offenses under" § 1227(a)(2), the IJs concluded that they both were ineligible for cancellation of removal under the controlling statute.

Meanwhile, on January 1, 2015, the California legislature enacted California Penal Code § 18.5, which reduced the maximum jail sentences for misdemeanor convictions from "up to or not exceeding one year" to "a period not to exceed 364 days." Cal. Penal Code § 18.5 (2015).

Velasquez-Rios then appealed his removal to the BIA, arguing that his theft conviction no longer qualified as "an offense under" § 1227(a)(2) because the maximum possible sentence for his conviction had been reduced...

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