Alfred v. Garland, No. 19-72903 (9th Cir. 2021)
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Alfred entered the U.S. from Palau under the Compact of Free Association between the U.S. and several Pacific Island territories. Seven years later, Alfred pled guilty in Washington state court to second-degree robbery and two counts of attempted robbery in the second degree. According to his plea agreement, Alfred alone first tried to obtain cash from a credit union teller before going to a coffee kiosk and taking money from the barista. He then attempted to carjack a vehicle. During Alfred’s incarceration, he was charged as removable under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(G)--a theft or burglary offense for which the term of imprisonment is at least one year. According to the IJ, the Ninth Circuit’s Alvarado-Pineda holding controlled; the state statute under which Alfred was convicted was a categorical match to the federal generic offense. Alfred, like Alvarado-Pineda, had been sentenced to a term of imprisonment of more than a year for each conviction. The BIA affirmed.
The Ninth Circuit vacated, citing its post-Alvarado-Pinedo holding, Valdivia-Flores, that convictions for robbery in the second degree and attempted robbery in the second degree under Washington law do not qualify as aggravated felonies under 8 U.S.C. 1101(a)(43)(G), (U).
Court Description: Immigration Granting McKenzy Alii Alfred’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that Petitioner’s convictions for robbery in the second degree and attempted robbery in the second degree, in violation of Wash. Rev. Code §§ 9A.56.190, 9A.56.210 and 9A.28.020, do not qualify as aggravated felony theft offenses under 8 U.S.C. §§ 1101(a)(43)(G), (U). The panel concluded it was bound by United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which a divided panel determined that when considering the immigration effect of a Washington controlled substance conviction, accomplice liability is an implicit and indivisible component of the conviction that must be considered under the categorical approach. The Valdivia-Flores majority further concluded that the accomplice liability mens rea under Washington law (knowledge) is broader than that required under federal law (specific intent), and therefore, there could be no categorical match between the state statute of conviction and the generic federal definition of a drug trafficking crime. Because, according to the Valdivia-Flores majority, it is well-established that aiding and abetting liability is implicit in every criminal charge, the panel explained that ALFRED V. GARLAND 3 accomplice liability must be considered here. Observing that the Valdivia-Flores majority never reached the text of the drug trafficking statute, the panel concluded that its inquiry ended with accomplice liability as well. To this effect, the panel concluded that the overbreadth of Washington’s accomplice liability means there can be no categorical match to the generic federal offense in this case either, and Petitioner’s second-degree robbery convictions cannot constitute aggravated felony theft offenses. Accordingly, the panel concluded that Petitioner was not removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Specially concurring, District Judge England, joined by Judge Bybee, wrote that the panel relied on a theory of liability that assumes a crime was committed by someone else when it was undisputed that Petitioner himself— alone—committed the offense. Judge England also explained that it is quite possible that, at least in similar cases, no Washington conviction can be an aggravated felony at all. In such cases, future panels will never need to turn to the actual statute of conviction, but the exact same conduct may be an aggravated felony in a neighboring state. Judge England observed that Congress could not have intended such disparities. Judge England wrote that the approach also puts attorneys in an untenable spot where they must argue against positions they would not normally advocate; the drive to show that state crimes of conviction are overbroad in comparison to their federal counterparts results in governments and prosecutors advocating for narrow readings of state criminal codes while defense counsel instead argue for expansion. Judge England wrote that all the confusion left in the wake of the categorical approach 4 ALFRED V. GARLAND undermines the legitimacy of the third branch of government. Concurring in the result, Judge Rawlinson wrote that she concurred in the result because, and only because, the result was compelled by the majority opinion in Valdivia-Flores. However, for the reasons explained in her dissent in Valdivia-Flores, Judge Rawlinson wrote that the conclusion that convictions for second degree robbery do not constitute aggravated felonies makes no sense legally or factually.
The court issued a subsequent related opinion or order on June 3, 2022.
The court issued a subsequent related opinion or order on March 30, 2023.
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