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Immigration reform march in San Jose. Photo by; Roshanda Cummings (o2be_me)

In Immigration, there are differential deference between a complain and conviction


“Whether a particular conviction is a [removable] offense is a question of law. “Thus, Executive Branch cannot be a substitute to judicial branch by adopting meanings based on interpretation’s that are contrary to criminal guidelines, Supreme Court and Circuits Court precedents”.   See also, Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000)

To determine whether a conviction constitutes a predicate offense for removal purposes, we use the analytical model constructed by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).”  Under the categorical approach, we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ offense”. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).

  1. a) Statue of conviction is categorical match to the generic predicate offense that is; if the statute of conviction criminalizes only as much (or less) conduct than the generic offense. “A state statute is a categorical match to the generic federal statute if it proscribes the same amount of or less conduct than the federal statute. Taylor, 495 U.S. at 588-89; see also Aguilera-Rios, 754 F.3d 1105, 2014 WL 4800292, at *6-7 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1686-87, 185 L. Ed. 2d 727 (2013)). “If the statute of conviction ‘sweeps more broadly than the generic crime, a conviction under that law cannot [categorically] count as [a qualifying] predicate, even if the defendant committed the offense in its generic form.'” {if a conviction categorically constitutes a predicate offense the inquiry ends, if not we move to step two}.
  2. b) We ask if the statute of convictions comparatively “overboard” element is divisible if not, then our inquiry ends, because a conviction under an indivisible overboard statute can never serve as a predicate offense. The “elements-centric, ‘formal categorical approach'” precludes this court from delving into the facts disclosed by the record of conviction other than to determine “which statutory phrase was the basis for the conviction.” See Descamps, 133 S.Ct. At 2284-86/ note fn[1]

With emphasis; California Health & Safety Code § 11359 is indivisible and use of “L.I.O.[2]” in a statue is categorical overboard, which precludes application of the modified categorical approach. As explained, to determine whether a statute is divisible, we consider whether “an element of the crime of conviction contains alternatives, one of which is an element of its Federal analogue,  Rendon v. Holder, 764 F.3d 1077, 1081, 1086 (9th Cir. 2014) recently held that a disjunctive statute is divisible, only if it contains multiple alternative elements, as opposed to multiple alternative means.

More specifically under Rendon [id] “[o]nly when state law requires that’ to convict the defendant and the jury must prove and agree unanimously that defendant committed a particular substantive offense contained within the disjunctive worded statute are we able to conclude that the statute contains alternative elements and not alternative means. A statute is ‘indivisible” if it does not have alternative elements and criminalizes a “broader swath of conduct than the relevant Federal law does. Descamps 133 S.Ct at 2282. If a statute is not divisible, then courts cannot apply the modified categorical approach to determine the facts underlying an individual’s particular conviction. Descamps, 133 S.Ct. At 2283, because the Jury must specifically find the defendant knowingly and intentionally possessed a controlled substance, marijuana is alternate means of satisfying the controlled substance’s element.

To argument can be raised that; the drug listed by reference in CHS § 11360 (a) or 11359 “L.I.O.” is not “element” because “a jury need not find the specific type of drug involve in a case requiring proof of possession. Instructions for 11359 reflect as much in/ See: CALJIC 12.21. [(The people do not need to prove that defendant knew which specific contained substance (he/she possessed].

       Agreeing to buy a controlled substance does not by itself, mean that a person has control over the substance.] Furthermore thus, the inconsistent use of the term “marijuana” is prejudice…as the penalty in § 1170 (h) under the State is the same, it makes no different during the plea hearing whether respondent possessed hashish, hashish oil or concentrated cannabis[3]. See: People v. Romero, 55 Cal.App.4th 147, 156 64 Cal .Rptr 2d 16 (1997). Concerns the mens rea for possession, not whether the specific drug is an element.   

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[1] . A statute is divisible if it sets forth “multiple, alternative versions of the crime,” thereby “effectively creat[ing] “several different crimes.” Id. at 2284-85 (citation omitted). A statute is “indivisible” if it does not have alternate elements and criminalizes a “broader swath of conduct” than the relevant federal law does. Id. at 2282

[2] Lower Included Offense

[3]The drug provisions found in 21 U.S.C. 841 are bifurcated into distinct parts which define the crime and then establish penalties which correspond to the quantity of the drug. Penalty provisions demonstrates that hashish should not be treated the same as marijuana Section 841 (b)(1)(D)( Arguably under 841 (b)(1)(D) penalty provision demonstrates that Congress did not intend marijuana and hashish to be treated in the same manner , even though hashish is not statutorily defined, the penalty distinction is based upon the greater potency of the hashish derivative of the “cannabis sativa” plant, To equate these two drugs in the exception clause of  the Act e.g (241)(a)(2)(B)(i) would be to ignore the importance of this penalty distinction and the clear intent of Congress that these drugs be treated differently.)

Credits: Cornell Law School



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