Velasquez-Rios v. Wilkinson
| Decision Date | 28 October 2020 |
| Docket Number | No. 18-73218,No. 18-72990,18-72990 |
| Citation | 988 F.3d 1081 |
| Parties | Eduardo VELASQUEZ-RIOS, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent. Sanjay Joseph Desai, aka Sanjay Joseph Andrews, aka Joao Sergio Karamano Soverano, Petitioner, v. Robert M. Wilkinson, Acting Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
The opinion in the above-captioned matters filed on October 28, 2020, and published at 979 F.3d 690, is amended as follows:
At slip opinion page 15, lines 1–2, replace Cal. Penal Code § 17(b)(1)> with Cal. Penal Code § 17(b)>.
At slip opinion page 15, line 15, replace Cal. Penal Code § 17(b)(1)> with Cal. Penal Code § 17(b)>.
The panel has voted to deny both Petitioner-Appellant Velasquez-Rios’ and Petitioner-Appellant Desai's petitions for panel rehearing. Judges Gould and Ikuta have voted to deny both Petitioners-Appellants’ petitions for rehearing en banc, and Judge Ezra has so recommended. The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petitions for panel rehearing and the petitions for rehearing en banc are denied.
No future petitions for rehearing or rehearing en banc will be entertained.
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) ()—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.
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 non-immigrant 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:
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 to 364 days. The BIA rejected that argument, noting that at the time of his conviction , the maximum sentence available was still one year. Velasquez-Rios then appealed to this Court.
In separate proceedings, Desai appealed the IJ's decision to the BIA, which remanded the matter to another IJ to consider whether Desai's theft conviction constituted a crime involving moral turpitude ("CIMT"), in light of any intervening precedent from this Court.
On remand, Desai told the IJ that he wished to accept an order of removal and appeal his case to the BIA, because recent BIA precedent had rendered his CIMT arguments moot at the lower stage of proceedings.
Therefore, the IJ affirmed the earlier March 3, 2015 decision and entered the removal order on March 29, 2017. Desai again appealed to the BIA.
On January 1, 2017, while Desai's appeal to the BIA and Velasquez-Rios’ appeal to our court were pending, the California legislature amended California Penal Code § 18.5 to apply retroactively to all misdemeanor convictions, regardless of whether the conviction was finalized on or before the statute's original enactment date. Cal. Penal Code § 18.5. We remanded Velasquez-Rios’ case to the BIA to consider the effect, if any, of the purported retroactive application of § 18.5.
On remand, the BIA again dismissed Velasquez-Rios’ appeal in a published decision. Matter of Velasquez-Rios , 27 I. & N. Dec. 470 (BIA 2018). In Matter of Velasquez-Rios , the BIA held that even though California's legislature had retroactively reduced the maximum sentence for purposes of state law, nonetheless, for purposes of federal law in § 1227(a)(2)(A)(i), the maximum sentence available is determined by looking at the actual date of conviction. Id . at 472. Because Velasquez-Rios could have been sentenced to up to one year of imprisonment when he was convicted, the BIA denied his appeal. Id . at 474.
Based on this precedential decision, and because the maximum sentence applicable when Desai was convicted was "up to one year," the BIA also denied his appeal on November 2, 2018.
Petitioners each timely filed a Petition for Review in our court.
We review the BIA's legal determinations de novo . Diaz-Jimenez v. Sessions , 902 F.3d 955, 958 (9th Cir. 2018).
Neither Petitioner disputes that when each was convicted in state court, the maximum sentence they could have received was up to one year of imprisonment. The key question before us is whether Matter of Velasquez-Rios was correctly decided or, as Petitioners contend, California's amendment to § 18.5 of the California Penal Code should have been applied to their cases retroactively for purposes of the cancellation of removal statute. We address each of Petitioners’ principal arguments in turn, and we deny the Petitions for Review of the BIA decisions.2
First, Petitioners argue that the BIA erred by relying on two criminal sentencing decisions: United States v. Diaz , 838 F.3d 968 (9th Cir. 2016), cert. denied sub nom. Vasquez v. United States , ––– U.S. ––––, 137 S. Ct. 840, 197 L.Ed.2d 77 (2017), and McNeilll v. United States , 563 U.S. 816, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011).
In McNeilll , the defendant was convicted of drug offenses in North Carolina state court. Id . at 817–18, 131 S.Ct. 2218. After the state later reduced the maximum sentence available for those offenses, McNeilll argued that the district court should have used the current, reduced maximum sentence in applying the Armed Career Criminal Act ("ACCA"), a federal sentencing statute. Id . The Supreme Court disagreed, holding that the ACCA "require[d] the court to determine whether a ‘previous convictio[n]’ was for a serious drug offense," and explained that the only way to answer that "backward-looking question" was to consult the law that applied at the time of conviction. Id . at 820, 131 S.Ct. 2218. In other words, the 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. Id . However, in a footnote, the Supreme Court expressly noted that it did not address the potential effect of a state statute retroactively reducing the maximum sentence for the offense. Id . at 825 n.1, 131 S.Ct. 2218.
We confronted a similar issue in Diaz . There, Diaz was convicted of drug-related crimes and sentenced to life imprisonment because his two prior California felony convictions triggered a mandatory...
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