By Kim Langona
In Matter of Velasquez-Rios, issued on October 4, 2018, the Board of Immigration Appeals (BIA or the Board) concluded that federal law, rather than state law, must be used to determine the immigration consequences of a state conviction. 27 I&N Dec. 470, 474 (BIA 2018). Thus, a 2014 California legislative enactment that “retroactively lowered the maximum possible sentence” for a state conviction “from 365 days to 364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of [the Immigration and Nationality Act] to a past conviction for a crime involving moral turpitude ‘for which a sentence of one year or longer may be imposed.’” Id. at 473.
Respondent Eduardo Velasquez-Rios “is a native and citizen of Mexico who entered the United States without inspection at an unknown time and place.” Id. at 470. As such, an Immigration Judge found Mr. Velasquez-Rios removable based on his own admissions under section 212(a)(6)(A)(i) of the INA, as an alien present in the United States without being admitted or paroled. Id. The Immigration Judge also denied Mr. Velasquez-Rios’ application for cancellation of removal under section 240A(b)(1) of the INA, based on a 2003 forgery conviction, and ordered him removed. Id. Mr. Velasquez-Rios was sentenced to only twelve days of incarceration for this forgery conviction. Id. However, the Immigration Judge found that the forgery offense was a crime involving moral turpitude “for which a sentence of one year or longer may be imposed” under section 237(a)(2)(A)(i) of the INA, because the maximum sentence for this crime at the time of his conviction was 365 days. Id. at 470-71. Thus, the Immigration Judge concluded that Mr. Velasquez-Rios was ineligible for cancellation of removal under section 240A(b)(1)(C) based on this disqualifying offense. Id. at 471.
While his appeal was pending, the California legislature enacted section 18.5 of the California Penal Code to limit deportability for low level and non-violent crimes. Id. This newly enacted section reduced sentencing for offenses that were then punishable by “one year” imprisonment to a maximum of 364 days imprisonment. Id. Despite this change, the Board reasoned that the maximum possible sentence at the time of his conviction was 365 days, that section 18.5 did not become effective until after Mr. Velasquez-Rios’ conviction, and that nothing in the language suggested that the law had retroactive effect. Id.
Mr. Velasquez-Rios petitioned the Ninth Circuit to review the Board’s decision. Id. Meanwhile, the California Legislature amended section 18.5 to apply retroactively to all prior convictions. Id. Consequently, the newly amended section applied the reduced maximum sentence to Mr. Velasquez-Rios’ 2003 forgery conviction. The Ninth Circuit remanded the case to allow the BIA to consider the impact of this amended section. Id.
The Board then considered the meaning of the CIMT basis of removal in light of the retroactive sentencing provision. Id. at 472. First, the court concluded that Mr. Velasquez-Rios’ forgery offense was clearly a “crime involving moral turpitude” within the meaning of section 237(a)(2)(A)(i)(I) because “crimes involving fraud have universally been held to involve moral turpitude.” Jordan v. De George, 341 U.S. 223, 228 (1951). The BIA also considered the California Jury Instructions, reasoning that a forgery conviction was a crime involving moral turpitude because it required the “specific intent to defraud another.” Cal. Jury Instr.—Crim. 15.07 (Sept. 2018).
Second, the BIA considered whether, in light of the California legislature’s decision to cap sentences at 364 days for forgery and many other low-level crimes, Mr. Velasquez-Rios’ forgery offense remained “a crime for which a sentence of one year or longer may be imposed” within the meaning of section 237(a)(2)(A)(i)(II) of the INA. Velasquez-Rios, 27 I&N Dec. at 472. The BIA concluded that the retroactive application modified sentencing for purposes of state law, however it did not affect conviction consequences under federal law. Id. In a twist that is likely to push migrants’ attorneys to seek Ninth Circuit review yet again, the Board reasoned that section 237(a)(2)(A)(i)(II) requires a backward-looking inquiry into the maximum possible sentence the alien “could have received for his offense at the time of his conviction.” Id. (citing Matter of Cortez, 25 I&N Dec. 301, 311 (BIA 2010)). With this perspective in mind, the Board concluded that Mr. Velasquez-Rios’ conviction still rendered him ineligible for cancellation of removal under section 240A(b)(1)(C), because the maximum possible sentence at the time of his conviction was 365 days. Id. at 473.
In coming to this conclusion, the BIA relied on federal court precedent. Id. First, the Board analogized Mr. Velasquez-Rios’ situation to that of the defendant in United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). The Diaz defendant argued that he was no longer subject to a federal sentence enhancement based on intervening California legislation that reclassified his prior felony conviction to a misdemeanor. See id. The Ninth Circuit rejected his argument, stating that the effect of California’s reclassification on his federal sentence enhancement should be determined by federal law, not state law. Id. at 972. The BIA interpreted the court’s reasoning, stating that under federal law California’s reclassification was irrelevant to the historical fact that the defendant had been convicted of the felony in the past. Velasquez-Rios, 27 I&N Dec. at 473. The BIA summarized that all that mattered under federal law was “whether the defendant had been convicted of two or more State felony drug offenses prior to his Federal offense.” Id. Thus, the California legislation did not reclassify the defendant’s prior felony to a misdemeanor for purposes of federal sentencing. Id.
The BIA also noted that the Supreme Court had rejected a similar argument in McNeill v. United States, 563 U.S. 816 (2011). The BIA summarized McNeill, explaining that this defendant also argued that he was not subject to federal sentence enhancement after intervening North Carolina legislation reduced the maximum sentence for his prior state conviction. Velasquez-Rios, 27 I&N Dec. at 473. The BIA interpreted the Supreme Court’s reasoning, stating that the Court disagreed with the defendant and held that the change in state law regarding his state conviction did not affect his federal sentence. Id. at 474. The BIA quoted the Court, stating that the plain language of the federal sentencing statute required “a Federal sentencing court to determine ‘the maximum sentence applicable to a defendant’s previous drug offense at the time of his conviction for that offense. . . . The only way to answer this backward-looking question is to consult the law that applied at the time of that conviction.’” Id. (quoting McNeill, 563 U.S. at 820). The BIA also interpreted the Court’s reasoning to suggest that this statutory interpretation avoided the absurd result of consulting current law to define a prior offense. Id.
Thus, the BIA adopted the same backward-looking inquiry utilized by the McNeill and Diaz courts. It concluded that federal law, rather than state law, should be used to determine the immigration consequences of a state conviction. Id. Despite the changes made to the California Penal Code, the BIA held that Mr. Velasquez-Rios’ forgery conviction remained “a crime for which a sentence of one year or longer may be imposed,” because the maximum possible sentence at the time of his conviction was 365 days. Id. Accordingly, Mr. Velasquez-Rios’ forgery conviction still rendered him ineligible for cancellation of removal under section 240(A)(b)(1)(C). Therefore, the Board dismissed his appeal. Id.
Kim Langona is a second-year law student at the University of Denver Sturm College of Law. Upon graduating in May 2020, she aspires to work in immigration law to advance migrants’ rights in her home state of Colorado.