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Top of the Ninth: Second Amendment Rights for Undocumented Immigrants and Robbery is An Aggravated Felony as a Theft Offense


The courts and the Board of Immigration Appeals (BIA) started 2019 in a relatively quiet fashion in immigration law – perhaps due to the government shutdown. Two immigration-adjacent cases came out of the Ninth this past week. One is a fascinating case about the Second Amendment rights of undocumented immigrants. (Spoiler – they might not have Second Amendment rights and the statute limiting their rights is reasonable). The second case holds that a conviction for California robbery, Cal. Penal Code § 211 is categorically an aggravated felony as a theft offense under INA § 101(a)(43)(G) – it might sound a little bit dull; but it is actually an interesting case. The BIA and the Attorney General have both been quiet.


A Law Prohibiting Undocumented Immigrants from Possessing Firearms Does Not Violate the Second Amendment

What are the chances that I can discuss the concept of “Chekov’s Gun” in a Second Amendment immigration case? I would think it would be astronomically low – yet, here we are, and I am so happy. (Not about the case, but about the coincidence). “Chekov’s Gun” is a rhetorical theory from the famous Russian playwright and short-story writer Anton Chekov. If you were ever lucky enough to take a creative writing class, you would have learned about “Chekov’s Gun.” Chekov famously said: “If in the first act you have hung a pistol on the wall, then in the following one it should be fired. Otherwise don’t put it there.” Guryland’s Reminiscences of A.P. Chekov, in Teatr i iskusstvo 1904, No. 28, 11 July, at 521. I suspected that Chekov’s Gun applied in this case when I read this sentence on page 4 of this decision, “However, Torres never applied for legal status.” United States v. Torres, No. 15-10492, slip op. at *4 (9th Cir. Jan. 8, 2019). That sentence piqued my curiosity because it both betrayed a fundamental lack of knowledge about immigration law and it seemed that the decision in this case would somehow rest on the fact that Mr. Torres never applied for legal status. I was correct on both counts.

Victor Manuel Torres was born in Mexico in 1985. His parents brought him to the United States when he was four-years-old. He and his parents were undocumented. Mr. Torres went to school in the United States from 1991 until 2000 when he was expelled from school. From the facts stated in the case it appears that he was a troubled child. In 2002, his parents sent him back to Mexico presumably to help him straighten out. Mr. Torres attempted to reenter the United States unlawfully three times in 2005. The government caught him trying to reenter twice and allowed him to return to Mexico both times. The third time, he was successful and he has been living in the United States without status since 2005. He joined his family in San Jose and started working with his father in landscaping. In 2012, he married a U.S. citizen. The next sentence is telling, “However, Torres never applied for legal status.”

In general, I have tremendous respect for Circuit Court judges, but this case just makes me want to offer them an introduction to immigration law class. I wouldn’t even charge for my time. It would be an act of public service on my part for the greater good. The judges seem to understand thoroughly the concepts of asylum, withholding, CAT, the categorical approach, the modified categorical approach…. But, at least in this case, they seem woefully ignorant of the permanent bar. I would think they would know that under INA § 212(a)(9)(C) that Mr. Torres was barred from obtaining status until he had lived outside of the United States for ten years because had had lived in the United States without proper documentation for over one year and then left the country and illegally reentered. Mr. Torres likely never applied for legal status because he was ineligible for it!

Back to the case. In 2014, Mr. Torres was arrested when police found him with a stolen bicycle, a small amount of methamphetamine, and a glass pipe, along with a loaded .22 caliber revolver, bolt cutters, and what appeared to be two homemade silencers for the gun. The federal government indicted Mr. Torres on one count of being an undocumented immigrant in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A). (It is against federal law for an undocumented immigrant to possess a firearm or ammunition). The State of California also charged Mr. Torres with several offenses that are not relevant here. Mr. Torres moved to dismiss the indictment arguing that 18 U.S.C. § 922(g)(5)(A) violates the Second Amendment to the U.S. Constitution. He argued that the statute is unconstitutional because it completely destroys rather than limits Second Amendment protections to an entire class of people. It’s an interesting argument.

The Ninth Circuit “assume[d]” “without deciding” that the Second Amendment applies to undocumented immigrants. Once it determined that the Second Amendment applied, the Ninth Circuit determined that under intermediate scrutiny the statute was constitutional. They noted that Congress may place certain limits on how Second Amendment rights are exercised and who may exercise the right. The Ninth Circuit applied a two-prong test: (1) does the challenged law burden conduct protected by the Second Amendment; and (2) if it does, did the courts apply the appropriate level of scrutiny? United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). “A law does not burden Second Amendment rights, if it either falls within “one of the ‘presumptively lawful regulatory measures” identified in Heller” or regulates conduct that historically has fallen outside the scope of the Second Amendment.” Torres, slip op. at *8. (Heller, is the Supreme Court decision that holds that the Second Amendment right to bear arms applies to individuals. District of Columbia v. Heller, 554 U.S. 570 (2008).

The question for the Ninth was whether undocumented immigrants is included within the term “the people.” The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Are undocumented immigrants people as defined by the Second Amendment? (Now that’s a sentence I never thought I would write). The Ninth Circuit sidestepped this issue finding that “we assume (without deciding) that unlawful aliens, such as Torres, fall within the scope of the Second Amendment rights….” Torres, slip op. at *15.

The next question for the Ninth Circuit was whether 18 U.S.C. § 922(g)(5) imposes a permissible restriction on the Second Amendment rights for undocumented immigrants. The Ninth Circuit first determined what level of scrutiny should apply – rational basis? Intermediate scrutiny? Strict scrutiny? The Ninth Circuit noted that they have previously held that laws burdening Second Amendment rights must withstand more searching scrutiny than rational basis. The Ninth Circuit noted that in the post-Heller era most courts have analyzed Second Amendment rights using intermediate scrutiny. The level of scrutiny depends on how close the law comes to core Second Amendment rights and to determine the severity of the law’s burden on that right. The Ninth Circuit noted that the burden on Second Amendment rights for undocumented immigrants was tempered by the fact that a person may remove themselves from the prohibition of owning a firearm by acquiring lawful immigration status. Torres, slip op. at *18. Well, if that is all it takes…. (Do you see why I want to give circuit court judges a seminar on basic immigration law?) The Ninth Circuit found that because the limitation on Second Amendment rights was tempered by the undocumented immigrant obtaining legal immigration status, intermediate scrutiny was the proper level of review. Because Mr. Torres had not sought to obtain legal immigration status, he was not entitled to a full panoply of Second Amendment rights. At this point I think we hear Chekov’s gun discharge. Bang!

For a challenged statute to survive intermediate scrutiny, the law must have (1) a significant, substantial, or important government objective; and, (2) a reasonable fit between that objective and the conduct regulated. Torres, slip op. at *19. The statute simply needs to promote a substantial government interest that would be achieved less effectively absent the regulation. Then the Ninth Circuit sounds a tad xenophobic.

“Congress’s objective in passing § 922(g) was ‘to keep guns out of the hands of presumptively risky people’ and to ‘suppress [] armed violence.”.*.*.*. These government interests are particularly applicable to those subject to removal. “[T]hose who show a willingness to defy our laws are …a group that out not be armed when authorities seek them.” *.*.*. If armed, unlawful aliens could pose a threat to immigration officers or other law enforcement who attempt to apprehend and remove them.*.*.*.

Finally, “the government has a[] strong interest in preventing people who already have disrespected the law (including, in addition to aliens unlawfully in the country, felons, § 922(g)(1), fugitives § 922(g)(2), and those convicted of misdemeanor crimes of domestic violence § 922(g)(9)) from possession guns.”*.*.*. Section 922(g)(5) and other concurrent additions to § 922(g) “reflect[] Congress’s judgment that persons within these categories ‘may not be trusted to possess a firearm without becoming a threat to society.””

Torres, slip op. at *20 (internal citations omitted). The Ninth Circuit concludes finding that while it assumes that undocumented immigrants do hold some degree of Second Amendment rights, those rights are not unlimited and the restrictions in 18 U.S.C. § 922(g)(5) are a valid exercise of Congress’s authority. It is not unconstitutional to restrict gun ownership to people who are not legally in the United States.

United States v. Torres, No. 15-10492 (9th Cir. Jan. 8, 2019).

California Robbery is an Aggravated Felony Theft Offense – But It’s Not a Crime of Violence

In a case that is weirdly interesting, the Ninth Circuit found that while Cal. Penal Code § 211 (robbery) is not an aggravated felony crime of violence; it is an aggravated felony theft offense and so the defendants in this case were subject to prosecution for illegal reentry. Two important take-aways here: (1) a California conviction for robbery is an aggravated felony as a theft offense under INA § 101(a)(43)(G) where a sentence of one year or longer is imposed; and (2) whether a noncitizen was properly removed from the United States is not a dispositive factor in a collateral attack on the underlying removal order.

Let’s get to the facts. The Defendants in this case, Josue Martinez-Hernandez and Oscar Carcamo-Soto are Mexican citizens. They both entered the United States without inspection when they were young. Years later they were both convicted of robbery in violation of Cal. Penal Code § 211 and were removed from the United States for having been convicted of an aggravated felony crime of violence under INA § 101(a)(43)(F). They both illegally reentered the United States and were charged with illegal reentry under 8 U.S.C. § 1326. They both filed motions to dismiss claiming that their removal orders were invalid because robbery is no longer a crime of violence under Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The district court denied the motions finding that even if Cal. Penal Code § 211 was not an aggravated felony crime of violence under INA § 101(a)(43)(F) it was still an aggravated felony as a theft offense under INA § 101(a)(43)(G). Both defendants appealed the case to the Ninth Circuit and the Ninth Circuit consolidated the cases.

The Ninth Circuit noted that a defendant may bring a collateral attack under 8 U.S.C. § 1326(d) to challenge an illegal reentry conviction. But, in order to succeed, the defendant must establish that not only was there a deficiency in the original removal process but that the entry of the order was fundamentally unfair. A removal order is fundamentally unfair if (1) the defendant’s due process rights were violated by the defects in the underlying removal proceeding; and, (2) the defendant suffered prejudice as a result of the defects. You can see where the logic is going here. Because the defendants were removable for having been convicted of an aggravated felony theft offense, ultimately, they could not show prejudice. I said it was interesting.

The Ninth Circuit noted that after the defendants were removed from the United States, the Ninth Circuit held that a conviction for Cal. Penal Code § 211 was categorically not a violent felony as defined in the Armed Career Criminal Act (ACCA). United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015). The government agreed that the robbery convictions no longer qualify as aggravated felony crimes of violence and they also agreed that Circuit law governs the Defendant’s collateral attacks on their removal orders.

The Defendants argued that the Ninth Circuit could not consider whether their convictions for Cal. Penal Code § 211 were aggravated felonies for a reason other than that specified in their Notices to Appear. The Defendants relied on a Ninth Circuit case holding that when considering a petition for review the Ninth Circuit has not power to affirm a Board of Immigration Appeals decision on a ground never charged by the government or relied on by the Immigration Judge. Al Mutarreb v. Holder, 561 F.3d 1029 (9th Cir. 2009). It’s a valiant argument. The Ninth Circuit disagreed.

“[T]his case arrived in a quite different procedural posture than our direct review of BIA decisions. In addressing petitions for review our inquiry is limited to determining whether the agency decision is supported by substantial evidence or the BIA made an error of law.*.*.*. Here, however, we do not directly executive agency action. Rather, we consider appeals from district court orders rejecting collateral attacks on prior executive orders. In this context, the central issue for decision is whether a defendant “was removed when he should not have been.*.*.*. If a violation of CPC § 211 is categorically a theft offense under 8 U.S.C. § 1101(a)(43)G), the Defendants should have been removed, albeit perhaps on different statutory bases than those cited in their notices.*.*.*. If CPC § 211 robbery is an aggravated felony under § 1101(a)(43)(G), the Defendants will have suffered no prejudice from any inability to address the issue in their original removal proceedings.”

United States v. Martinez-Hernandez, No.16-50423, slip op. at *8-9 (9th Cir., Jan. 9, 2011).

The Ninth Circuit then analyzed whether Cal. Penal Code § 211 is an aggravated felony theft offense. First, the Ninth Circuit found that the federal definition for generic theft requires the following elements: (1) the taking of (2) property (3) without consent (4) with the intent to deprive the owner of rights and benefits of ownership. Martinez-Hernandez, slip op. at *10. The Ninth Circuit then compared this definition with the state definition of robbery: (1) the felonious taking of (2) personal property in the possession of another from their person or immediate presence (3) against their will (4) accomplished by means of force or fear. Id. The Ninth Circuit noted that the California Supreme Court has found that the specific intent to steal is an essential element of § 211 robbery. People v. Anderson, 252 P.3d 968 972 (S. Ct. Cal. 2011). So, we now know that a California conviction for robbery under Cal. Penal Code § 211 is categorically an aggravated felony theft offense under INA § 101(a)(43)(G) where the defendant is sentenced to a term of imprisonment of one year or more. And, we now know that if we try to collaterally attack a conviction, we must establish that the defendant could not be removed under any possible theory of the case. The defendant can still be subject to a prosecution for illegal reentry even under a ground of removal not listed in the Notice to Appear. See, it is an interesting case.

United States v. Hernandez-Martinez, No. 16-50423 (9th Cir., Jan. 9, 2019)

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