Velasquez-Rios v. Barr, No. 18-72990 (9th Cir. 2020)
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The Ninth Circuit denied separate petitions for review filed by Velasquez-Rios and Desai, holding that an amendment to section 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).
The panel rejected petitioners' contention that the BIA erred by relying on 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. Relying upon McNeill, the panel 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 section 841 was when the two felony drug offenses had "become final." The panel rejected petitioners' arguments and 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. Finally, 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.
Court Description: 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 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. * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. VELASQUEZ-RIOS V. BARR 3 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 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 4 VELASQUEZ-RIOS V. BARR 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. BARR 5
The court issued a subsequent related opinion or order on February 24, 2021.
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