In the days before the new year, an en banc Ninth Circuit Court in Almanza-Arenas v. Lynch, No. 09–71415, slip op. (9th Cir. Dec. 28, 2015) held that California’s Vehicle Theft Statute, California Penal Code § 10851(a) is not a crime involving moral turpitude (“CIMT”).
My office had previously blogged about the predecessor to this case here, which held that the Petitioner’s crime is not a CIMT. However, because of the current debates regarding the impact of crimes on one’s immigration status, the Ninth Circuit decided to rehear the case in front of a larger panel of judges. In this case, that panel constituted eleven judges.
In this case, the Court provides a step-by-step analysis to determine if the State offense is indeed a CIMT.
Step 1: Compare the state crime’s elements to the federal offense’s elements.
The Court looked at the text of § 10851(a) and compared it to the definition of a CIMT. CIMT can be defined as “vile, base, depraved” and “violates accepted moral standards.” The Court then looked at existing cases and found that taking someone’s property only temporarily is not a CIMT, but a permanent taking is a CIMT. Therefore, the Court then turned to the next step to determine whether § 10851(a) has multiple crimes within it (or whether it is “divisible”), or is just one crime.
Step 2: Determine if the state crime is divisible or not.
The Court provides a definition of “divisible,” that is “whether [it] has multiple, alternative elements, and so effectively creates several different crimes.” Almanza-Arenas, No. 09–71415 at 13 (quoting Descamps v. United States, 133 S. Ct. 2276 (2013)).
The Court reasons that the divisibility of § 10851(a) depends on whether to “permanently” or “temporarily” deprive someone of their vehicle is an element or a means to prove one crime. Id. The Court then looked to jury instructions, and other state law authority, to determine whether the jury was required to find the intent of the accused as either “permanent” or “temporary,” or was not required to make a choice. The Court found that the jury instructions clearly showed that a California jury did not have to choose between a “permanent” or “temporary” taking to convict the accused of § 10851(a). Since no choice had to be made, “permanent” and “temporary” are not individual elements of a crime, but just different means to commit the same crime. The Court did not need to proceed to Step 3 of the inquiry, and therefore found that the crime is not a CIMT, and therefore the person is not removable.
This case illustrates the massive number of changes in the way crimes affect one’s immigration status. These changes could mean the difference between being ordered deported by an immigration judge or being allowed to stay and live your life in the United States.
The Law Offices of Vivek Mittal is dedicated to serving immigrants with criminal issues, also known as “crimmigration,” and fighting zealously for them. As a former law clerk to a Federal judge, Attorney Vivek Mittal is an expert in determining whether recent caselaw could impact your case. Contact our office for a consultation today.