Eduardo Velasquez-Rios v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO VELASQUEZ-RIOS, No. 18-72990
Petitioner,
Agency No.
v. A200-154-815
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
SANJAY JOSEPH DESAI, AKA Sanjay No. 18-73218
Joseph Andrews, AKA Joao Sergio
Karamano Soverano, Agency No.
Petitioner, A096-656-434
v.
ORDER AND
ROBERT M. WILKINSON, Acting AMENDED
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 4, 2020
Pasadena, California
2 VELASQUEZ-RIOS V. WILKINSON
Filed October 28, 2020
Amended February 24, 2021
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and David A. Ezra, * District Judge.
Order;
Opinion by Judge Gould
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
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
VELASQUEZ-RIOS V. WILKINSON 3
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
4 VELASQUEZ-RIOS V. WILKINSON
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.
VELASQUEZ-RIOS V. WILKINSON 5
COUNSEL
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.
Andrew Wachtenheim, Leila Kang, and Nabilah Siddiquee,
Immigrant Defense Project, New York, New York, for
Amici Curiae American Immigration Lawyers Association,
American Immigration Council, Detention Watch Network,
Immigrant Defense Project, National Immigration Litigation
Alliance, Northwest Immigrant Rights Project, California
Public Defenders Association, Washington Defender
Association, Six State Public Defender Offices, and Law
Professors & Law School Clinics.
6 VELASQUEZ-RIOS V. WILKINSON
ORDER
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.
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
VELASQUEZ-RIOS V. WILKINSON 7
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 non-
1
Velasquez-Rios has asserted different entry dates—1997,1987,
and “in or around” 1988—at various points throughout his immigration
proceedings and before this Court. His entry date is not relevant to this
appeal.
8 VELASQUEZ-RIOS V. WILKINSON
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:
(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
VELASQUEZ-RIOS V. WILKINSON 9
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 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.
10 VELASQUEZ-RIOS V. WILKINSON
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.
VELASQUEZ-RIOS V. WILKINSON 11
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.
II
We review the BIA’s legal determinations de novo.
Diaz-Jimenez v. Sessions, 902 F.3d 955, 958 (9th Cir. 2018).
III
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
2
In his Petition for Review, Desai makes the additional arguments
that the phrase “crime involving moral turpitude” is unconstitutionally
vague, and that the BIA erred in concluding that an offense under
§ 1227(a)(2)(i) need not be a CIMT committed within five years of
admission for cancellation of removal purposes. Both of these
arguments lack merit. See Ortega-Lopez v. Barr, ___ F.3d ___, No. 18-
72441 (9th Cir. Oct. 20, 2020). Velasquez-Rios also argues that he is
eligible for cancellation of removal pursuant to the “petty offense”
exception under § 1182(a)(2)(A)(ii)(II). Notwithstanding the “petty
offense” exception, Velasquez-Rios’ eligibility for cancellation of
12 VELASQUEZ-RIOS V. WILKINSON
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, 137 S. Ct. 840 (2017), and McNeill v.
United States, 563 U.S. 816 (2011).
In McNeill, the defendant was convicted of drug offenses
in North Carolina state court. Id. at 817–18. After the state
later reduced the maximum sentence available for those
offenses, McNeill 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. 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.
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 sentence enhancement
under 21 U.S.C. § 841. United States v. Diaz, 838 F.3d 968,
975 (9th Cir. 2016). Four years later, California adopted
Proposition 47, under which state courts could reclassify
removal here depends on whether he has been “convicted of an offense
under” § 1227(a)(2).
VELASQUEZ-RIOS V. WILKINSON 13
certain felony convictions as misdemeanors. Id. After a
California state court re-classified Diaz’s two felony
convictions, Diaz sought to invalidate his federally-
enhanced sentence. Id. Relying upon McNeill, we held that
the statute called for a backward-looking inquiry to the
initial date of conviction, rather than the current state of
California law, and that the triggering event under § 841 was
when the two felony drug offenses had “become final.” Id.
at 975; 21 U.S.C. § 841.
Seizing on the phrase “have become final,” Petitioners
argue that Diaz is inapposite because here,
§ 1227(a)(2)(A)(i) lacks any explicit reference to the finality
of convictions. We decline to read Diaz so narrowly.
For one thing, we did not explicitly limit our holding in
Diaz to apply only where the operative statute is triggered by
the finality of a conviction. In fact, we relied heavily on
McNeill, where the relevant ACCA provision contained no
such language. McNeill, 563 U.S. at 819 (“[The] ACCA’s
sentencing enhancement applies to individuals who have
‘three previous convictions . . . for a violent felony or a
serious drug offense.’”). Moreover, 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
operative statute which cross-references § 1227(a)(2), and
under which Petitioners ultimately seek cancellation of
removal—clearly calls for a backward-looking inquiry. It
requires that an alien “has not been” convicted of an
applicable offense, including a CIMT under § 1227(a)(2).
8 U.S.C. § 1229b(b)(1)(C) (emphasis added). As we held in
Diaz, the “only way to answer this backward-looking
question is to consult the law that applied at the time of that
conviction.” Diaz, 838 F.3d at 820. We see no reason why
14 VELASQUEZ-RIOS V. WILKINSON
the reasoning underpinning Diaz should apply with any less
force here.
As in Diaz, we believe that our approach “aligns with the
Supreme Court’s repeated admonishments that federal laws
should be construed to achieve national uniformity.” Diaz,
838 F.3d at 974. Petitioners’ proposed construction, by
contrast, would require immigration judges and federal
courts to apply the various statutes—including any
retroactively applied amendments—of each state in a
“patchwork fashion” to determine the immigration
consequences of a particular offense. Id. An alien’s
eligibility for cancellation of removal based on a CIMT
conviction would therefore “depend solely upon where the
previous conviction had occurred.” Id. (citing United States
v. Bergeman, 592 F.2d 533, 537 (9th Cir. 1979)).
Our decision also 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.” McNeill, 563 U.S.
at 823. For example, two aliens who had “identical criminal
histories—down to the dates on which they committed and
were sentenced for their prior offenses”—could receive
different treatment under the cancellation of removal statute
solely because one alien’s immigration hearing “happened
to occur after the state’s legislature amended the punishment
for one of the shared prior offenses.” Id.In addition, we decline to give retroactive effect to the
California statute in the cancellation of removal context
where it appears that the purpose of that state-law
amendment is to circumvent federal law. The legislative
history of the amendment to § 18.5 of the California Penal
Code reveals that the amendment’s retroactive application
was designed to prevent the deportation of aliens who had
VELASQUEZ-RIOS V. WILKINSON 15
been convicted of misdemeanors before 2015. See
Sentencing: Misdemeanors: Hearing on Senate Bill 1242
before the California Senate Committee on Public Safety
(April 12, 2016) (Statement of Ricardo Lara) (“While SB
1310 aligned state and federal law on a prospective basis, it
did not help those who were convicted of a misdemeanor
prior to 2015 . . . SB 1242 will provide, on a retroactive basis
that all misdemeanors are punishable for no more than
364 days and ensure that legal residents are not deported due
to previous discrepancies between state and federal law.”).
Nor are we persuaded by Petitioners’ remaining attempts
to distinguish Diaz and McNeill. Although Desai argues that
Diaz is distinguishable because here, § 1227(a)(2)(A)(i) is
“phrased in the present tense,” the Supreme Court expressly
rejected that same argument in McNeill. 563 U.S. at 820(noting that the use of the present tense in the ACCA did not
change the fact that the ACCA “is concerned with
convictions that have already occurred.”).
We acknowledge that Diaz and McNeill are not directly
controlling because they dealt with criminal sentencing
statutes. But our decision to extend their rationales to
Petitioners’ cases finds strong support in our existing
immigration precedent. In Prado v. Barr, we held that
“federal immigration law does not recognize a state’s policy
decision to expunge (or recall or reclassify) a valid state
conviction.” 949 F.3d 438, 441 (9th Cir. 2020). “This is
because ‘Congress intended to establish a uniform federal
rule that precluded the recognition of subsequent state
rehabilitative expungements of convictions.’” Id. (citing
Murillo-Espinoza v. I.N.S., 261 F.3d 771, 774 (9th Cir.
2001)). In our system, principles of federalism require that
“[f]ederal law, not state law, governs our interpretation of
federal statutes.” Diaz, 838 F.3d at 972.
16 VELASQUEZ-RIOS V. WILKINSON
Nonetheless, Petitioners argue that our decision in
Garcia-Lopez v. Ashcroft forecloses the BIA’s decision in
Velasquez-Rios and, by implication, our holding here.
334 F.3d 840, 846 (9th Cir. 2003), overruled in part by
Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). This is
not so. That case concerned a California “wobbler” statute,
under which an offense could be classified as either a
misdemeanor or a felony at sentencing. 334 F.3d at 844; Cal.
Penal Code § 17(b). Garcia-Lopez’s offense was not
classified as a misdemeanor or a felony when he accepted a
guilty plea. Id. at 842. It was only after Garcia-Lopez
violated his parole and removal proceedings had begun that
the state court classified his offense as a misdemeanor for
the first time. Id. at 842. We held that the offense was
properly considered a misdemeanor for purposes of his
eligibility for suspension of deportation under the INA’s
“petty offense” exception. Id. at 846; see also 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II) (1996).
We distinguish Garcia-Lopez because in that case, the
“wobbler” statute permitted a range of possible
classifications for the offense at the time of conviction. Cal.
Penal Code § 17(b). Here, by contrast, Petitioners were
convicted of offenses that, at time of conviction, had only
one possible maximum potential sentence: up to one year of
imprisonment. The retroactive change to the sentence for
California’s misdemeanors cannot change that historical
fact.
Petitioners alternatively argue that Matter of Velasquez-
Rios conflicts with the BIA’s prior decisions in Matter of
Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2015), and Matter
of Song, 23 I. & N. Dec. 173 (BIA 2001), which discussed
the effect of state court orders modifying a defendant’s
sentence nunc pro tunc to the time of conviction. Desai
VELASQUEZ-RIOS V. WILKINSON 17
separately argues that those decisions require the BIA to
recognize the amendment to § 18.5 of the California Penal
Code under the Full Faith and Credit Clause, as codified at
28 U.S.C. § 1738.
We see no conflict between those decisions and the
BIA’s decision in Matter of Velasquez-Rios. Here, neither
Desai nor Velasquez-Rios obtained nunc pro tunc sentence
modifications from a state court. Because those decisions
are inapplicable here, Desai’s Full Faith and Credit argument
also fails. And even if those decisions did apply, they cannot
be considered to be in tension with Petitioners’ cases
because they were recently overruled by the Attorney
General. Matter of Thomas & Thompson, 27 I. & N. Dec.
674 (A.G. 2019).
Finally, Velasquez-Rios argues that California’s
amendment to § 18.5 is not preempted by federal law.
Although the BIA did not rest its holding on a preemption
analysis, we note that preemption is not at issue here,
because this case presents no conflict between state and
federal law. See, e.g., Chicanos Por La Causa, Inc. v.
Napolitano, 558 F.3d 856, 863 (9th Cir. 2009) (“For conflict
preemption to apply, the conflict must be an actual conflict,
not merely a hypothetical or potential conflict.”). Our
holding has no bearing on whether California may, for
purposes of its own state law, retroactively reduce the
maximum sentence available for misdemeanor convictions.
IV
A final and fundamental point of import should be
mentioned: our system of laws embraces the concept of
federalism. Our national government has certain limited
powers generally spelled out in Articles I–III of the United
States Constitution. See U.S. Const. art. I (Legislative
18 VELASQUEZ-RIOS V. WILKINSON
Branch); art. II (Executive Branch); art. III (Judicial
Branch). Any powers not covered by the grant of power to
the federal government are reserved to the people or the
states. See id. amend. X.
Historically, the states’ police powers are broad in
permitting state decisions that relate to public health, safety,
and welfare, so long as state laws do not violate the federal
Constitution. See Chicago, B. & Q. Ry. Co. v. Illinois,
200 U.S. 561, 584 (1906) (recognizing “the possession by
each state of the power, never surrendered to the government
of the Union, of guarding and promoting the public interests
by reasonable police regulations that do not violate the
Constitution of the state or the Constitution of the United
States.”). But for more than a century, it has been
universally acknowledged that Congress possesses sweeping
authority over immigration policy as “an incident of
sovereignty.” United States v. Hernandez-Guerrero,
147 F.3d 1075, 1076 (9th Cir. 1998) (citation omitted). This
authority derives, in part, from the federal government’s
powers as enumerated in the Naturalization Clause, U.S.
Const. art. I, § 8, cl. 4; the Commerce Clause, id. § 8, cl. 3;
the Migration and Importation Clause, id. § 9, cl. 1; as well
as the federal government’s “inherent power as sovereign to
control and conduct relations with foreign nations.” Arizona
v. United States, 567 U.S. 387, 394–95 (2012).
From this it follows that Congress may make laws
defining the proper sphere in which a person who is not a
citizen and is in the United States without proper authority
and documentation may be removed from this country, and
that Congress, but not individual states, can give an escape
hatch for removal in certain cases where equitable
circumstances are thought to warrant cancellation of
removal as a matter of federal law. See Valle del Sol Inc. v.
VELASQUEZ-RIOS V. WILKINSON 19
Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013) (“[A]ny direct
regulation of immigration—which is essentially a
determination of who should or should not be admitted into
the country, and the conditions under which a legal entrant
may remain—is constitutionally proscribed because the
power to regulate immigration is unquestionably exclusive
federal power.”) (cleaned up); see also Hernandez-
Guerrero, 147 F.3d at 1076 (“[A]ll agree that over no
conceivable subject is the legislative power of Congress
more complete than it is over the admission of aliens.”)
(cleaned up); cf. Firestone v. Howerton, 671 F.2d 317, 320
n.5 (9th Cir. 1982) (“Congress has nearly unlimited power
to exclude classes of aliens from admission.”).
It is clear that federal statutes can specify when removal
is permissible and also when a cancellation of removal is
warranted. We hold that those 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.
V
We hold that California’s amendment to § 18.5 of the
California Penal Code, which retroactively reduces the
maximum misdemeanor sentence to 364 days for purposes
of state law, cannot be applied retroactively for purposes of
§ 1227(a)(2)(A)(i).
AFFIRMED.