Lakhwinder Sanghera v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAKHWINDER SINGH SANGHERA, No. 14-73507
AKA Lakhwinder Sanghera, 15-71240
Petitioner,
Agency No. A046-866-497
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 28, 2017
Pasadena, California
Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,** District
Judge.
Lakhwinder Singh Sanghera, a native and citizen of India, petitions for
review of the Board of Immigration Appeals’ (BIA or Board) order of removal
pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), which deemed Sanghera removable for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
committing a “crime of child abuse.” Sanghera also petitions for review of the
Board’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. §
1252(a)(1), and we grant the petition without reaching the Board’s denial of
Sanghera’s motion to reopen.
1. The IJ abused his discretion by applying the Board’s 2008 definition
of “crime of child abuse” retroactively to Sanghera’s 2001 conviction for violation
of California Penal Code section 273a(a).1 See Garfias-Rodriguez v. Holder, 702
F.3d 504, 518 (9th Cir. 2012) (en banc) (quoting Montgomery Ward & Co. v. FTC,
691 F.2d 1322, 1328 (9th Cir. 1982)) (explaining the five-factor retroactivity test).
Two years prior to his 2001 conviction, the BIA intimated, in a published decision
in Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999),2 that its definition of the
“crime of child abuse” in § 1227(a)(2)(E)(i) would conform to the “common
1
Sanghera did not waive his retroactivity arguments by failing to raise them to
the Board or the IJ. “[E]xhaustion of administrative remedies with respect to the
retroactivity issue is not required, except to invite the agency to correct its own
error, if ‘record development is unnecessary and the [agency] has no special
expertise to do the retroactivity analysis.’” Garfias-Rodriguez v. Holder, 702 F.3d
504, 514 (9th Cir. 2012) (en banc) (quoting Chang v. United States, 327 F.3d 911,
925 (9th Cir. 2003)). Because no further record development is necessary, the
parties have briefed the issue before this court, and deference is not required, we
consider the issue here in the first instance.
2
While the dissent correctly notes that Rodriguez focused on the separate crime
of “child sexual abuse,” we see no reason to ignore Rodriguez’s discussion of the
“crime of child abuse,” particularly when Rodriguez offered the Board’s sole
discussion of that separate crime at the time of Sanghera’s no-contest plea to
California Penal Code section 273a(a).
2
usage” of that term as defined in the 1990 edition of Black’s Law Dictionary. Id.
at 996. The dictionary defined “child abuse” as “(a)ny form of cruelty to a child’s
physical, moral or mental well-being.” Id.
Sanghera reasonably relied on Rodriguez in anticipating the immigration
consequences of his conviction. As the only pronouncement from the Board
interpreting “crime of child abuse” at the time, Rodriguez had the power to
persuade. See Nguyen v. Holder, 763 F.3d 1022, 1028 (9th Cir. 2014). Moreover,
while the BIA issued unpublished decisions interpreting § 1227(a)(2)(E)(i) after
Rodriguez, see, e.g., In re Palfi, 2004 WL 1167145 (BIA 2004); In re Pacheco
Fregozo, 2005 WL 698590 (BIA 2005), Rodriguez remained the only precedential
decision discussing the scope of § 1227(a)(2)(E)(i)’s “crime of child abuse” for
nearly a decade. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 952 (9th Cir.
2007) (recognizing that “the longer and more consistently an agency has followed
one view of the law, the more likely it is that private parties have reasonably relied
to their detriment on that view”). We ultimately deemed Rodriguez’s commentary
on § 1227(a)(2)(E)(i) dicta, Velazquez-Herrera v. Gonzales, 466 F.3d 781, 782–83
(9th Cir. 2006) (“Velazquez I”), but Sanghera could not have reasonably
anticipated this result or what would happen eight years later. In fact, in the period
between Rodriguez and Velazquez I, and even after, many of our sister circuits
accepted Rodriguez as a reasonable interpretation of § 1227(a)(2)(E)(i). See, e.g.,
3
Ochieng v. Mukasey, 520 F.3d 1110, 1114–15 (10th Cir. 2008); Nguyen v.
Chertoff, 501 F.3d 107, 114 n.9 (2d Cir. 2007); Loeza-Dominguez v. Gonzales, 428
F.3d 1156 (8th Cir. 2005).3
The Board did not issue a precedential interpretation of what constituted a
crime of child abuse until 2008 in Matter of Velazquez-Herrera, 24 I. & N. Dec.
503 (BIA 2008) (“Velazquez II”), and when it did, the Board included criminally
negligent conduct, see id. at 511, and conduct that did not result in any injury to the
child, see Matter of Soram, 25 I. & N. Dec. 378, 380–81 (BIA 2010). Because our
law requires us to assume that immigrant defendants will be “acutely aware of the
immigration consequences of their convictions” when they enter plea agreements,
see INS v. St. Cyr, 533 U.S. 289, 322 (2001), and because deportation is “‘a
particularly severe penalty,’ which may be of greater concern to a convicted
sentence than ‘any potential jail sentence,’” Sessions v. Dimaya, 138 S. Ct. 1204,
1213 (2018), we conclude that the majority of the Montgomery Ward retroactivity
factors weigh against retroactive application in this instance, and we deem the
Board’s retroactive application of Velazquez II an abuse of discretion.
3
It makes no difference that these out-of-circuit opinions post-dated Sanghera’s
conviction, though the dissent thinks otherwise. We reference these decisions to
show only that Sanghera reasonably relied on Rodriguez, as the Board’s then only
commentary of what amounted to a “crime of child abuse.”
4
2. Because the Board abused its discretion in applying Velazquez II
retroactively to Sanghera’s 2001 no-contest plea to California Penal Code section
273a(a), we rely on Rodriguez as the basis for a categorical analysis to determine
whether Sanghera’s conviction under California Penal Code section 273a(a) is a
categorical match for the generic definition of a crime of child abuse. See Fregozo
v. Holder, 576 F.3d 1030, 1035 (9th Cir. 2009) (citing Fernandez-Ruiz v.
Gonzales, 466 F.3d 1133 (9th Cir. 2006)) (applying categorical analysis without
remand to the Board). Section 273a(a) criminalizes conduct with a minimum mens
rea of criminal negligence. Under Rodriguez, the federal generic definition of a
“crime of child abuse” criminalized conduct that “intentional[ly] and
malicious[ly]” inflicted pain on the child. Velazquez I, 466 F.3d at 782–83.
Because section 273a(a) criminalizes a broader array of conduct than Rodriguez’s
federal generic definition of the crime, the California statute is not a categorical
match to the federal generic definition. And because we previously concluded that
section 273a(a) is not divisible, see Ramirez v. Lynch, 810 F.3d 1127, 1138 (9th
Cir. 2016), our analysis stops here, see Sandoval v. Yates, 847 F.3d 697, 704 (9th
Cir. 2017) (“Only divisible statutes are subject to the modified categorical
approach.”). Section 273a(a) is broader than the definition of “crime of child
abuse” in Rodriguez and section 273a(a) is not divisible, so Sanghera’s conviction
under California Penal Code section 273a(a) was not a crime of child abuse.
5
Sanghera is not removable under Rodriguez based on his 2001 conviction, and we
vacate the order of removal.
Petition GRANTED.
6
FILED
Sanghera v. Sessions, Nos. 14-73507, 15-71240
JUL 23 2018
BYBEE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In a published opinion also issued today, we hold that the BIA’s
interpretation of the phrase “a crime of child abuse, child neglect, or child
abandonment” in 8 U.S.C. § 1227(a)(2)(E)(i) is entitled to Chevron deference and
applies retroactively to a conviction under California Penal Code § 273a(a). See
Martinez-Cedillo v. Sessions, No. 14-71742, slip op. at 2 (9th Cir. 2018). The only
relevant difference between that case and this one is that the petitioner here was
convicted under the same statute seven years earlier. That is a distinction without a
difference. Because I believe this case is substantially identical to Martinez-
Cedillo, I would deny the petition for review.
1. In 2001, when Lakhwinder Singh Sanghera was convicted of felony
child endangerment under California Penal Code § 273a(a), the BIA had never
interpreted § 1227(a)(2)(E)(i) in a precedential decision. See Martinez-Cedillo,
No. 14-71742, slip op. at 6 (noting that “the BIA’s interpretation of a crime of
child abuse, neglect, or abandonment was unclear” at this time). The BIA did not
offer a precedential interpretation of § 1227(a)(2)(E)(i) until May 2008, when it
“interpret[ed] the term ‘crime of child abuse’ broadly to mean any offense
involving an intentional, knowing, reckless, or criminally negligent act or omission
that constitutes maltreatment of a child or that impairs a child’s physical or mental
well-being, including sexual abuse or exploitation.” Matter of Velazquez-Herrera,
24 I. & N. Dec. 503, 512 (BIA 2008). Later, the BIA clarified that Velazquez’s
definition encompassed child-endangerment crimes even if no actual injury to a
child resulted. Matter of Soram, 25 I. & N. Dec. 378, 380–81 (BIA 2010).
In Martinez-Cedillo, we hold that the BIA’s decision in Soram applies
retroactively to Martinez-Cedillo’s August 2008 conviction under California Penal
Code § 273a(a). No. 14-71742, slip op. at 3, 31–33. The only difference between
that case and this one is that Martinez-Cedillo’s conviction occurred between the
BIA’s decisions in Velazquez and Soram, while Sanghera’s conviction occurred
before Velazquez during the period when the BIA had not yet given a precedential
interpretation of § 1227(a)(2)(E)(i). Thus, the only question before us is whether
to give Velazquez retroactive effect here, as we do for Soram in Martinez-Cedillo.
2. We apply the five-factor Montgomery Ward test to decide whether to
give the BIA’s decisions retroactive effect. Garfias-Rodriguez v. Holder, 702 F.3d
504, 518 (9th Cir. 2012) (en banc) (citing Montgomery Ward & Co. v. FTC, 691
F.2d 1322, 1328 (9th Cir. 1982)). The five factors are: (1) “whether the particular
case is one of first impression,” (2) “whether the new rule represents an abrupt
departure from well established practice or merely attempts to fill a void in an
unsettled area of law,” (3) “the extent to which the party against whom the new
2
rule is applied relied on the former rule,” (4) “the degree of the burden which a
retroactive order imposes on a party,” and (5) “the statutory interest in applying a
new rule despite the reliance of a party on the old standard.” Id.
The first factor is generally not “well suited to the context of immigration
law” and does not weigh either for or against retroactivity. Id. at 521. The second
and third factors both support retroactive application here: the BIA’s decision in
Velazquez was precisely an “attempt[ ] to a fill a void in an unsettled area of law,”
and because the law was unsettled, there was no “former rule” on which Sanghera
could have reasonably relied. See Martinez-Cedillo, No. 14-71742, slip op. at
4–15. The fourth factor cuts in Sanghera’s favor because deportation is a
substantial burden. But the fifth factor, like the second and third factors, favors
retroactive application because “non-retroactivity impairs the uniformity of a
statutory scheme, and the importance of uniformity in immigration law is well
established.” Garfias-Rodriguez, 702 F.3d at 523. Because three of the five
Montgomery Ward factors support retroactive application, I would apply Velazquez
retroactively to Sanghera’s conviction and deny the petition for review.
3. The only reason the majority gives for reaching the opposite
conclusion is that, at the time of his conviction, Sanghera supposedly relied on the
BIA’s decision in Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999). That
3
case did not concern § 1227(a)(2)(E)(i) but rather dealt with a different provision
of the INA. At most, Rodriguez noted in dictum that:
By its common usage, “child abuse” encompasses actions or inactions
that also do not require physical contact. See Blacks Law Dictionary
[(6th ed. 1990)] (defining child abuse as “(a)ny form of cruelty to a
child’s physical, moral or mental well-being”).
Id. at 996. It is the parenthetical to the citation in this dictum that the majority
claims formed the basis of Sanghera’s reliance. It strains credulity to suggest this
impacted Sanghera’s decision to plead no contest to the California crime.1
In the end, the majority applies a definition of § 1227(a)(2)(E)(i) that we
recognized as dictum in 2009 and that we hold today was “never in fact the
[BIA’s] position.” Martinez-Cedillo, No. 14-71742, slip op. at 27. I respectfully
dissent.
1
The majority claims Sanghera’s reliance on Rodriguez was bolstered by
three out-of-circuit decisions. Ochieng v. Mukasey, 520 F.3d 1110, 1114–15 (10th
Cir. 2008); Nguyen v. Chertoff, 501 F.3d 107, 114 n.9 (2d Cir. 2007);
Loeza-Dominguez v. Gonzales, 428 F.3d 1156, 1158 (8th Cir. 2005). But all these
decisions postdated Sanghera’s conviction by four years or more. If we are going
to assess Sanghera’s reliance in light of decisions from after his conviction, we
should look instead to our own decision holding that Rodriguez’s brief reference to
§ 1227(a)(2)(E)(i) was dictum and suggesting that the California statute under
which Sanghera was convicted is in fact a crime of child abuse, neglect, or
abandonment. Pacheco Fregozo v. Holder, 576 F.3d 1030, 1036 (9th Cir. 2009).
4