Are Grounds of Removability 'Dumb, Dumb, Dumb'?

Yes. Also, 'We should avoid doing dumb things. Especially ones that are dumb.' But it's not that easy.

By Andrew R. Arthur on July 31, 2020

The Ninth Circuit issued a decision Tuesday in Orellana v. Barr, which is an otherwise unremarkable decision – except for the concurrence, in which Judge John Byron Owens went off the rails. In a screed that I could not have gotten away with as an immigration judge (IJ), he attacked the very concept of one of the key grounds of removability. And, he is likely correct – but his proposed solution is not that easy.

First, some background. The case involves a lawful permanent resident native and citizen of El Salvador (Orellana). He was convicted in 2017 of two counts of criminal stalking, in violation of California Penal Code § 646.9(a), for which he received a year in prison. That provision states:

(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking . . . .

As the court noted, Cal. Penal § 646.9 ("the nation's first criminal stalking statute", passed in 1990) had its genesis in one of the most shocking crimes in my memory: the shooting of actress Rebecca Shaeffer, as well as in the killing of four other women in Southern California within a month-and-a half.

The 21-year-old Schaffer had costarred in the 1980s CBS sitcom, "My Sister Sam", among other projects. One Robert John Bardo (who was obsessed with Schaeffer) roamed her neighborhood with her picture, asking locals where she lived. On July 18, 1989, he gunned Schaeffer down in her doorway; she died shortly thereafter. Bardo got life in prison for the killing in 1991. Even though Schaeffer's name has (regrettably) largely been forgotten, it is still known as the "My Sister Sam murder".

With respect to the four other women who were also killed (in separate events), as a California state court later noted: "Each . . . 'had obtained a temporary restraining order and [had] communicated to her family, friends, and police that she thought she was going to be killed.'" It its shocking, in retrospect, that stalking has only been a crime for 30 years.

Back to Orellana. DHS originally charged him with removability under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA) as an alien charged with a crime of stalking. He had initially admitted he was removable, but then, on appeal, sought a remand after the Board of Immigration Appeals (BIA) issued Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), in which it held that Cal. Penal § 646.9 was not a categorical match to a "crime of stalking" under the generic federal definition of the offense.

I explained the "categorical approach" to determining whether a criminal offense would render an alien removable, and the problems that it presents for IJs in determining removability – at length – in a January 2018 post. Long story short: it is a complicated mess. When is a "crime of stalking" not a "crime of stalking"? Read BIA Member Garry Malphrus's dissent in Matter of Sanchez-Lopez for his take on the logic of the thing.

In any event, Orellana's case was remanded back to the IJ, where DHS next charged that he was removable on account of his convictions under section 237(a)(2)(A)(ii) of the INA. That section renders a lawfully admitted alien removable if the alien has been "convicted of two or more crimes involving moral turpitude [CIMT], not arising out of a single scheme of criminal misconduct . . . ."

Curiously enough, applying this provision is much, much more complicated than the stalking one. There are two salient factors that the IJ must suss his or her way through to make this determination: (1) whether the crimes were CIMTs and (2) whether they arose "out of a single scheme of criminal misconduct". Both are complicated, the latter unduly so (as shown below).

What is a "CIMT"? As I explained in that January 2018 post, while not defined in the INA, CIMTs are generally crimes of vileness, baseness, or depravity, "contrary to the accepted rules of morality and the duties owed between persons or to society in general". Given the world in which we live, one would question whether society recognizes any "accepted rules of morality" anymore, and determining what is vile, base, or depraved is like Justice Potter Stewart's 1964 take on hard core pornography: "I know it when I see it."

I will note, to prove the point above about evolving mores, that when I went looking for that quote (from Jacobellis v. Ohio; the quote is known to all former law students, the case – not so much), I had to be careful in typing in my search terms. Pornography is now ubiquitous on the internet, demonstrating how much the world has changed since Nico Jacobellis was convicted on two counts of possessing and exhibiting the 1958 French art-house film "Les Amants".

But, again, back to Orellana. The three-judge panel gamely and (two of them, at least) dispassionately made their way through an analysis of whether the petitioner's crimes were CIMTs (they were) and whether they arose out of a single scheme of criminal misconduct (the BIA had correctly determined that they did).

Mind you, it took the panel 19 pages of analysis to get to these conclusions, in a case involving an alien convicted of "willfully and maliciously following and harassing" two different individuals (one over a period of almost two years, another over a period of almost two months, with some overlap).

To demonstrate the difficulty of the latter analysis (that the two crimes did not arise from a single scheme of criminal misconduct), here is an actual quote from the decision: "Orellana's stalking in Count 1 was not a natural consequence of Orellana's stalking of a different person in Count 2. . . . He had the opportunity to dissociate himself from stalking the first person before stalking the second."

That single quote shows how convoluted this analysis was, and regrettably had to be. Which brings me to the concurrence by Judge Owens.

It begins:

"Dumb, dumb, dumb!" my Grandpa Harold would exclaim when I tried to explain a legal concept that made little sense. I can only imagine what he would say about the "CIMT" approach that case law currently compels us to apply.

. . . .

We should avoid doing dumb things. Especially ones that are dumb.

Judge Owens (implicitly) proposes that Congress amend the INA to move to an approach which would "look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed from our country."

This is a refrain that I have heard from some of my former colleagues on the bench. Of course, such a change in the law is not as easy as it sounds.

First, states (such as California), as well as pliable or activist state judges and prosecutors who do not like the immigration consequences of convictions to begin with, would respectively under this regime rewrite statutes and "amend" subsequent convictions and/or the sentences therefor post-hoc to keep ICE at bay, as I explained in a May 2019 post they already do under the current law.

Second, good luck getting any amendments to the criminal grounds of removability through the current Congress, or the next. Presidential candidate Joe Biden vows that he will only deport felons (and in any event, not drunk drivers – who kill 10,000 people each year). Given that, is there any serious hope that you could get a majority of the House and 60 senators to rewrite the criminal grounds of removability in any way that would actually protect the American public (including other aliens, who generally bear the brunt of alien crime)? President Biden would never sign it if they did.

Honestly, there seems to be a criminal-alien lobby in the United States. To quote Judge Owens's Grandpa Harold: "Dumb, dumb, dumb!"

Regrettably, the laws only really change when there is some heinous act that even the most credulous and least law-enforcement minded in society cannot turn away from. Like September 11th. Or, the murder of a 21-year-old actress. And even then, courts whittle away at them, little-by-little or wholesale. Judge Owens' colleagues are not blameless for creating this miasma.

For example, I heard hundreds, if not thousands, of drug trafficking cases as an IJ. In Moncrieffe v. Holder, the Supreme Court essentially stated that most state marijuana trafficking convictions are not, you know, "trafficking convictions" for purposes of the INA. That decision makes no sense. In Sessions v. Dimaya, the Court held that the "crime of violence" definition in 18 U.S.C. § 16(b), as incorporated into the aggravated felony definition in section 101(a)(43)(F) of the INA, was unconstitutionally vague. But I had applied it tens, if not hundreds of times, with no problem. BIA Member Malphrus, in his dissent in Matter of Sanchez-Lopez, offers even more examples of the tangles that courts have created in applying criminal removal provisions in the INA.

As for CIMTs, I would often quip that as an IJ, I put on an 18th-century costume to apply 19th-century concepts to a 21st-century world. That said, I had to do it so often that it became logical, as if I were trapped in a sort of legal "Stockholm syndrome." But, that does not mean that the concept is not "dumb".

So yes, Judge Owens, there should be changes to the criminal grounds of removal. In the best-case scenario, those changes would expedite adjudications in removal proceedings, and place aliens on notice that committing crimes in the United States will get them deported. But, in the worst case scenario, such changes would mean that countless more innocent people would suffer at the hands of recidivist alien criminals.

Given recent statements from many prominent politicians (who will remain unnamed), I would expect the worst-case scenario. But, there is still time for them to "dissociate" themselves from their senseless rhetoric.