Ninth Circuit Finds NV Conviction for Possession of Visual Presentation Depicting Sexual Conduct of Person under 16 Years of Age is not Sexual Abuse of a Minor Aggravated Felony

The Ninth Circuit has determined that a Nevada conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age is not a sexual abuse of a minor aggravated felony. The court noted that “the Nevada statute does not require proof that the offender participated in sexual conduct with a minor, as required under the first two elements of the federal generic definition. That requirement is grounded in the ordinary meaning of ‘sexual abuse.’” “The Nevada statute punishes possession of a visual depiction of a minor engaged in sexual conduct, but knowing and willful possession of the image alone renders an offender guilty. The offender himself need not have participated in any form of sexual conduct with the minor who is depicted in the image.” “With a possession-only offense such as N.R.S. § 200.730, the minor depicted in the image is not the direct object of the offender’s conduct, which is a necessary predicate for the offense to qualify as ‘sexual abuse of a minor.’”

The court remanded for the agency to address in the first instance if the conviction qualified as an aggravated felony related to child pornography, but the government admitted that statute is likely overbroad compared to the generic definition of that aggravated felony.

The full text of Mero v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/01/17-70929.pdf

Ninth Circuit finds that Nevada Conviction for Child Abuse and Neglect not a Crime of Child Abuse

The Nevada statute at issue defines as a misdemeanor (1) an act or omission (2) by a person “responsible for the safety or welfare of a child” (3) who has no prior child abuse convictions, (4) which act or omission “permits or allows” (5) the child “to be placed in a situation where the child may suffer physical pain or mental suffering” (6) as a result of the responsible person’s “abuse or neglect,” (7) even if “substantial bodily or mental harm does not result to the child.”

Like the generic definition of a crime of child abuse, the statute requires a mens rea of at least negligence.  However, the statute does not specify what probability of harm to the child the “situation” in which the child is placed must carry; it merely refers to situations “where the child may suffer physical pain or mental suffering” as a result of “abuse or neglect.”  The Court then assumed that a “reasonable foreseeability” standard would apply to the issue of the probability of harm. 

The generic definition of a crime of child abuse includes conduct that creates at least a “reasonable probability” or a likelihood of harm to a child. But the Nevada statute is even broader: It includes conduct that creates only a “reasonable foreseeability” of harm to a child. 

The Court remanded the case to allow the agency to determine if the application of the modified categorical approach was appropriate. 

The full text of Alvarez-Cerriteno v.  Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/16-73486.pdf

Ninth Circuit Finds that Nevada Conviction for Making a False Statement in an Application for a Driver's License is not a CIMT

In an unpublished decision, the Ninth Circuit determined that a Nevada conviction for making a false statement in an application for a driver's license is not categorically a crime involving moral turpitude because it it criminalizes conduct that is not inherently fraudulent.  "There are myriad ways a defendant could commit the felony described in § 483.530(2) without intending to defraud. For instance, the provision expressly makes it a felony knowingly to make a false statement in a driver’s license application. Knowing misrepresentation alone, however, is not intent to defraud. Only facts that go to the identity of the applicant—such as name or Social Security number—would be material to the issuance of a license such that the misrepresentation was necessarily done with the intent to procure the license.  An applicant might falsify certain personal identifying information without intending that these misrepresentations result in procurement of the identification, as those false statements would have no effect on whether the license would issue."

The full text of Lopez-Hurtado v. Sessions can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/08/09/14-72744.pdf

Ninth Circuit Addresses a Nevada Conviction for Conspiracy to Possess a Credit Card Without Consent and Eligibility for Cancellation of Removal for Non-lawful Permanent Residents

In a published decision, the Ninth Circuit determined that a conviction under Nevada Rev. Stat. §§ 199.480 and 205.690(2) (conspiracy to possess a credit card without consent) is categorically a crime involving moral turpitude because it necessarily requires an intent to defraud.  In addition, the court deferred to the Board of Immigration Appeals' interpretation of the statute governing cancellation of removal for non-lawful permanent residents, and found that a conviction for a crime involving moral turpitude which is punishable by at least one year imprisonment renders any non-citizen (including one who has never been admitted to the United States) ineligible for cancellation.

The full text of Mancilla-Delafuente v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/02/12-73469.pdf

Ninth Circuit Addresses Immigration Consequences of a Nevada Conviction for Possession of Paraphernalia

In light of the Supreme Court's recent decision in Mellouli v. Lynch, the Ninth Circuit held that a conviction for violating Nevada's possession of paraphernalia statute is not categorically a controlled substance offense.  The court remanded the case for the agency to determine whether the modified categorical approach should be employed, and if so, what impact the application of the modified categorical approach would have on the petitioner's application for relief.

The full text of Madrigal-Barcenas v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/10/10-72049.pdf

Nevada Conspiracy to Commit Burglary is not a Conspiracy Aggravated Felony

Earlier this week, the Ninth Circuit addressed whether a conviction for violating Nev.
Rev. Stat. §§ 199.480 and 205.060(1) (conspiracy to commit burglary) could qualify as a conspiracy aggravated felony.  The court determined that it could not because Nevada's conspiracy statute does not require a defendant to take an "overt act" in furtherance of the conspiracy.  The court rejected the Government's argument that it should look to the common-law definition of conspiracy, which does not require proof of an overt act by the defendant. Instead, the court looked at how the majority of jurisdictions define conspiracy in the modern era. This approach is mandated by the Supreme Court's decision in Taylor v. United States, which states that the generic definition of a crime should be based on the "contemporary usage of the term."  Because the majority of jurisdictions do require an overt act, the court found that the generic definition must also include this element.  Since Nevada's statute does not include this element, it is not a match to the generic definition, and it does not qualify as an aggravated felony.

The full text of the Ninth Circuit's decision in United States v. Garcia-Santana can be read here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/12/15/12-10471.pdf