[00:00:08] Speaker 02:
Good morning, Your Honors.

[00:00:09] Speaker 02:
May it please the Court, Carlo Brooks, on behalf of the petitioner, Carlos Alberto Castillo.

[00:00:16] Speaker 02:
The Court's permission, I'd like to reserve two minutes for rebuttal.

[00:00:24] Speaker 02:
Your Honors, we are now at the agency's fourth bite at the apple in this case.

[00:00:34] Speaker 02:
Mr. Castillo was first placed in removal proceedings on May 21st, 2019, almost exactly five years ago from today.

[00:00:44] Speaker 02:
His position from the get-go has not changed, i.e.

[00:00:50] Speaker 02:
that he is not convicted of a sexual abuse of a minor aggravated felony.

[00:00:57] Speaker 02:
In fact, as the record demonstrates, on January 14th, 2020,

[00:01:05] Speaker 02:
The immigration judge in Atalanta, California found exactly that and cited this case, excuse me, this court's case law in support of her decision.

[00:01:22] Speaker 02:
She cited Estrada and Castro and said at the hearing that, and I quote,

[00:01:34] Speaker 02:
288ab2 simply does not fit.

[00:01:43] Speaker 02:
Now for reasons unknown, instead of embracing her own reasoning and terminating the proceedings, she then stated that even though

[00:01:59] Speaker 02:
she was finding that Mr. Castillo was not convicted of an aggravated felony, that she was not inclined for whatever reason to quote unquote flip another immigration judge's decision.

[00:02:14] Speaker 02:
And there she was referring to the prior determination by Judge Riley at 300 North Los Angeles Street before Mr. Castillo was transferred to Adelanto.

[00:02:25] Speaker 02:
And so this case could have

[00:02:29] Speaker 02:
ended there, should have ended there, and yet it went to the BIA, at which point the BIA applied the wrong standard by the government's own admission.

[00:02:45] Speaker 02:
The case went back to the BIA, and this time the BIA attempted to shore up its decision by reference to

[00:02:58] Speaker 02:
the case law, which this court has clearly stated controls statutory rape offenses.

[00:03:04] Speaker 02:
In other words, it found that the California former section 288A-B2 is a categorical match to the federal

[00:03:18] Speaker 04:
Do you agree that under the prior panel's decision in Castillo that Estrada Espinosa provides the relevant standard that we have to apply here?

[00:03:32] Speaker 02:
Yes, Your Honor.

[00:03:34] Speaker 02:
Estrada is

[00:03:38] Speaker 04:
the law of the land in the Ninth Circuit and in fact the other... What are the issues, elements of that particular test that you see in dispute here?

[00:03:53] Speaker 02:
Well, the elephant in the room with respect to why this is clearly not a categorical match is that the elements don't match.

[00:04:04] Speaker 04:
Which ones don't match?

[00:04:06] Speaker 02:
OK, so textually, clearly, facially, the generic definition and the federal statute for which it was derived has a knowingly component.

[00:04:20] Speaker 02:
The California statute has no knowingly element.

[00:04:25] Speaker 03:
But the cases do suggest that there's a general intent requirement.

[00:04:31] Speaker 02:
That is what the government proposed in its brief.

[00:04:37] Speaker 04:
Is there California authority that says it's like a strict liability offense, like daughter white, that there's no scientists at all?

[00:04:45] Speaker 02:
Essentially, when one looks at the cases and one looks at the jury instructions, as we pointed out in our opening brief, no matter what the government says or what

[00:05:01] Speaker 02:
sort of court-crafted legal fiction.

[00:05:09] Speaker 02:
It wants this court to read into the California statute.

[00:05:18] Speaker 02:
Everything points to the fact that not only is it not a specific intent crime, that it's never been.

[00:05:28] Speaker 04:
It's between specific intent and knowingly.

[00:05:31] Speaker 02:
Yes.

[00:05:33] Speaker 04:
And so why isn't a general intent crime in California, which describes a lot of them, why isn't that sufficient match to knowingly?

[00:05:44] Speaker 02:
Well, for several reasons, Your Honor.

[00:05:46] Speaker 02:
As we pointed out copiously in our briefing, the generic definition and the federal statute require an express finding that the defendant

[00:06:02] Speaker 02:
acted knowingly.

[00:06:04] Speaker 02:
There's no such requirement in the California statute and there's absolutely no reason to jump to the conclusion or to presume that the word knowingly was added to the statute crafted by the legislature haphazardly.

[00:06:28] Speaker 02:
Not all federal statutes have a knowingly

[00:06:31] Speaker 02:
element.

[00:06:33] Speaker 02:
By contrast, in California

[00:06:35] Speaker 02:
There's absolutely no express, there's absolutely no requirement to make an express finding.

[00:06:41] Speaker 03:
Haven't we drawn the, this court has drawn the California court's assignment of general intent as a background principle to these, we've already incorporated that elsewhere.

[00:06:54] Speaker 03:
How do we distinguish this case?

[00:06:57] Speaker 03:
We have before looked at California case law to add a general intent requirement, do you agree?

[00:07:05] Speaker 03:
to other statutes?

[00:07:08] Speaker 02:
To be honest, in the cases, in the California state court cases, which the government cites, we perceive no obvious underlying general intent element which equates to knowingly in California statutes.

[00:07:32] Speaker 02:
And I think

[00:07:35] Speaker 02:
this is best illustrated and exemplified if one looks at the burden of proof and the jury instructions.

[00:07:52] Speaker 02:
Now the government argued in its brief that

[00:07:57] Speaker 02:
It casted our argument as being that the generic definition requires specific intent.

[00:08:04] Speaker 02:
That was never our argument.

[00:08:08] Speaker 02:
What we're saying is that the California statute, unlike the federal statute and is set forth in the respective jury instructions,

[00:08:18] Speaker 02:
does not even require a guilty knowledge of the facts that make up the crime.

[00:08:24] Speaker 02:
And therefore, by definition, it is a strict liability statute.

[00:08:29] Speaker 02:
By contrast, the federal definition is not.

[00:08:36] Speaker 02:
At the very least, this is made obvious by the fact that it has the knowingly element and that there is an express federal affirmative defense

[00:08:49] Speaker 02:
which one can present as illustrated in the United States versus Holy Bull case, which we cited, but it's also in this court's comments and jury instructions.

[00:09:03] Speaker 02:
The defendant did not have a guilty knowledge of the facts that make up the offense.

[00:09:18] Speaker 02:
And so, clearly, the California statute sweeps greater conduct into its ammit.

[00:09:26] Speaker 02:
It exceeds the scope of the federal definition and of the federal statute.

[00:09:34] Speaker 02:
Now, all of the cases that follow Estrada, roughly around the same year, Pellejo, Castro, not only point out

[00:09:49] Speaker 02:
that the California statute lacks the knowingly element.

[00:09:52] Speaker 02:
They also point out this court's jurisprudence, which clearly states that only in terms of age differential, only under 14 is per se abusive.

[00:10:11] Speaker 02:
Therefore, the California statute could not be characterized as a categorical match

[00:10:19] Speaker 02:
on any notion that the behavior, the conduct it describes is per se abusive.

[00:10:30] Speaker 02:
And what I'd like to point out, even though it's dismissed as dicta by the government in its brief, this court in the United States of East Sullivan, roughly five years later after this line of cases, reaffirms all of these reasons and made an express finding that 288

[00:10:50] Speaker 02:
AB 2 is not a categorical match.

[00:10:54] Speaker 02:
That alone should be enough to find that petitioner was not convicted of an aggravated felony.

[00:11:02] Speaker 02:
There's absolutely no reason why this court should depart from its reasoning in Sullivan, although more so in that in Sullivan, the court did conduct a proper Taylor analysis.

[00:11:19] Speaker 02:
it engaged with the merits of that case.

[00:11:23] Speaker 02:
And therefore, despite any arguments that I make, this court can look to its own arguments and come to the same conclusion.

[00:11:34] Speaker 00:
Let me ask you a question about the motion to remand, which is whether we actually have jurisdiction to review that claim after our recent decision in Korea versus Garland, if you're familiar with that.

[00:11:49] Speaker 02:
To be honest, I'm not very familiar with that case.

[00:11:58] Speaker 02:
I would say that, of course, our first position is that Mr. Castillo isn't convicted of an aggravated felony.

[00:12:10] Speaker 02:
Therefore, this court should order his proceedings terminated.

[00:12:15] Speaker 02:
However, he does have an approved I-130.

[00:12:18] Speaker 02:
He could readjust status because his initial adjustment was in this country.

[00:12:23] Speaker 02:
And so this court's case of Negrete says that he can readjust.

[00:12:29] Speaker 02:
He shouldn't have to do that.

[00:12:33] Speaker 02:
Nevertheless,

[00:12:35] Speaker 02:
the agency certainly erred in declining to remand his case in the alternative, given that he has an alternative form of relief, which is not speculative.

[00:12:55] Speaker 02:
So that's our position on remand, which honestly we hope

[00:13:04] Speaker 02:
will not be necessary, but it's certainly a proper avenue for him to take.

[00:13:10] Speaker 02:
I believe I'm out of time.

[00:13:12] Speaker 04:
No, that's the time you wanted to save for rebuttal.

[00:13:14] Speaker 02:
OK, I will save that time for rebuttal unless the court has any questions at this time.

[00:13:18] Speaker 02:
All right.

[00:13:19] Speaker 02:
Thank you.

[00:13:22] Speaker 04:
And we'll hear now from Mr. Newell.

[00:13:35] Speaker 01:
Good morning, may it please the court.

[00:13:37] Speaker 01:
My name is Craig Newell, and I'm here on behalf of the attorney general.

[00:13:41] Speaker 01:
Mr. Castillo's conviction for the California offense of oral copulation with a person under the age of 16 categorically constitutes a sexual abuse of a minor aggravated felony, because the statute at issue here is a categorical match to this court's Estrada-Espinoza generic definition.

[00:13:59] Speaker 01:
The key element that's in dispute is the generic mens rea requirement of knowingly.

[00:14:06] Speaker 01:
Now that knowingly mens rea for the generic definition equates to a general criminal intent.

[00:14:13] Speaker 01:
And this California statute issue here satisfies that intent, even though it's not expressly within the statutory language.

[00:14:21] Speaker 01:
The statutory language is where we begin our inquiry.

[00:14:23] Speaker 01:
It's not where we end it.

[00:14:25] Speaker 01:
We need to look to see how the California courts have interpreted their own statutes.

[00:14:29] Speaker 01:
And here we have precedent from the California Supreme Court and California Court of Appeals

[00:14:35] Speaker 01:
saying that this crime is a general intent crime.

[00:14:39] Speaker 04:
Given the details of how the statute defines the actus reus, is it possible to commit that actus reus without awareness of what one is doing?

[00:14:54] Speaker 01:
Is it possible?

[00:14:56] Speaker 01:
No, I think.

[00:14:58] Speaker 04:
I mean, this is one where the knowledge is built in.

[00:15:01] Speaker 04:
If you're doing the act, you know you're doing it because it's described in a very specific way.

[00:15:06] Speaker 04:
Whereas there are lots of times where you could do something that's ambiguous and the scientist is going to determine whether it's on the right side or the wrong side of the line.

[00:15:16] Speaker 04:
Is this a case where it's just intrinsic in the action that there is a minimum level of knowledge science?

[00:15:24] Speaker 01:
Yes, there is, Your Honor.

[00:15:26] Speaker 01:
It describes an act that you would have to intend to do.

[00:15:31] Speaker 01:
You do not need to know that it's illegal.

[00:15:33] Speaker 01:
And this is, if you look at the California case law, like Hood and Davis, say that when one of their statutes, one of California statutes, just prohibit you from doing a clear act like this,

[00:15:45] Speaker 01:
Uh, you know, and it doesn't ask any kind of intent to commit something further or to cause your your intent to you have a purpose to cause some kind of result.

[00:15:54] Speaker 01:
Those those type of crimes, uh, the the courts read in an intent

[00:16:01] Speaker 01:
to commit that act alone, but not an intent to break the law.

[00:16:04] Speaker 01:
It's a general criminal intent.

[00:16:06] Speaker 01:
And that's what we have here.

[00:16:07] Speaker 01:
There's no daylight between what is required for the Estrada Espinosa generic definition as to mens rea and what's required under this California statute.

[00:16:19] Speaker 03:
How do you distinguish Sullivan?

[00:16:22] Speaker 01:
OK.

[00:16:26] Speaker 01:
The court in Sullivan in passing did say that this statute lacks a mens rea.

[00:16:31] Speaker 01:
And so it's not a categorical match.

[00:16:33] Speaker 01:
But it did that in passing and it was not necessary for its resolution.

[00:16:38] Speaker 01:
Sullivan dealt with sentencing enhancements that require that you have sentencing enhancements if you've had a past state offense that relates to sexual abuse.

[00:16:50] Speaker 01:
So when you're doing the categorical inquiry with a relating to,

[00:16:56] Speaker 01:
statute, you're not doing this very strict elements to elements matching.

[00:17:02] Speaker 01:
You're just asking whether the conduct prohibited by the state statute, whether it goes something, you know, bears any relation upon, is it associated with sexual abuse.

[00:17:14] Speaker 01:
It's a broader kind of inquiry.

[00:17:16] Speaker 01:
And so the court found in Sullivan that this statute is a match upon that broader inquiry.

[00:17:23] Speaker 01:
But it didn't need to make that prior cursory statement.

[00:17:27] Speaker 01:
And if you look at it, to make that resolution, you need to do more than just look at the statutory text.

[00:17:34] Speaker 01:
You need to look at how the California courts

[00:17:37] Speaker 01:
interpret the statute.

[00:17:39] Speaker 01:
It's the authoritative sources of state law as the Supreme Court's Mathis decision instructs us to look at.

[00:17:46] Speaker 01:
And you look at decisions such as we cited Vasquez-Boras was a case where there was a California forgery statute.

[00:17:57] Speaker 01:
The statute on its face does not have an intent to defraud.

[00:18:00] Speaker 01:
And so the petitioner there said, hey, this doesn't have an intent to defraud.

[00:18:03] Speaker 01:
It can't be a crime involving moral turpitude then.

[00:18:06] Speaker 01:
But the California case law was clear that California says, you know, this crime requires an intent to defraud, even though it's not written in the plain language.

[00:18:16] Speaker 01:
And so this court, when looking to, when doing the categorical approach with a state offense, needs to follow how the states interpret its law.

[00:18:28] Speaker 01:
And that's what it should do here and find the categorical match between the Estrada-Espinoza generic definition

[00:18:34] Speaker 01:
and this statue.

[00:18:36] Speaker 01:
What about Palaio Garcia?

[00:18:39] Speaker 01:
Okay, Palaio Garcia involves a different California statue.

[00:18:43] Speaker 01:
So each statue needs to stand on its own, you know, on its own grounding.

[00:18:49] Speaker 01:
And here we have clear case law saying there's a general criminal intent for this particular statue.

[00:18:59] Speaker 01:
regarding paleo at the time, there may have been no case file.

[00:19:04] Speaker 01:
What is interesting though is in Mr. Castillo's reply brief, he implicitly acknowledges

[00:19:13] Speaker 01:
that the crime in Palau, the 261.5D, is a general criminal intent crime because there was a 2010 decision from the California Court of Appeals, so that's one year after Palau, in which it said 261.5D is a general intent crime.

[00:19:34] Speaker 01:
So unfortunately, Palau was based on a misunderstanding of California law, but here this court

[00:19:42] Speaker 01:
won't have to fall into that trap because we have a line of California precedent showing that this is a general intent crime and not a strict liability crime.

[00:19:51] Speaker 01:
Even if you look at how California considers what is a strict liability crime versus general intent crime, the People v. Simon case, strict liability crimes are usually, they're usually misdemeanors.

[00:20:04] Speaker 01:
There are public welfare crimes that are regulatory in nature trying for, you know, for the whole society as a whole where this is a crime that involves a protected class of victims, it imports the,

[00:20:20] Speaker 01:
The legislature finds this to be a wrong that should be punished, not just regulated.

[00:20:26] Speaker 01:
And so in those situations, general criminal intent is much more appropriate.

[00:20:32] Speaker 01:
And that's why the courts did what they did.

[00:20:37] Speaker 01:
The only other point in reference to my colleague on the mens rea issue is his reliance on the jury instructions.

[00:20:48] Speaker 01:
Yes, the California jury instruction for this crime doesn't mention the mens rea.

[00:20:54] Speaker 01:
But in preparation for this oral argument, I looked at the whole California pattern criminal jury instructions, and they have specific jury instructions for mens rea.

[00:21:03] Speaker 01:
There's one, it says use this if it's a general criminal intent crime, use this if it's a specific intent crime.

[00:21:10] Speaker 01:
And also in the hierarchy of what's an authoritative source of state law,

[00:21:16] Speaker 01:
a decision from obviously the California Supreme Court or its intermediate court is higher up than a jury instruction.

[00:21:23] Speaker 01:
As to the other issue, the motion to remand, that is because the criminal alien jurisdictional bar applies here,

[00:21:36] Speaker 01:
He may only raise a constitutional or a legal challenge to it.

[00:21:40] Speaker 01:
He has shown no legal error in it.

[00:21:43] Speaker 01:
The board was presented with, once again, evidence of a pending immediate relative visa petition.

[00:21:52] Speaker 01:
The question was asked and answered in the past case.

[00:21:54] Speaker 01:
The court says, no, you need an approved visa petition to show at least prima facie eligibility.

[00:21:59] Speaker 01:
And he'd never put forth such evidence before the board.

[00:22:03] Speaker 01:
And it wasn't the board's job as a neutral adjudicator

[00:22:06] Speaker 01:
to search for evidence or make arguments on behalf of a litigant.

[00:22:11] Speaker 01:
If there are no further questions, I appreciate the panel's time.

[00:22:17] Speaker 01:
Thank you, Your Honors.

[00:22:19] Speaker 04:
Thank you, Counselor.

[00:22:20] Speaker 04:
Next, we'll hear a rebuttal from Mr. Brooks.

[00:22:32] Speaker 02:
All right.

[00:22:35] Speaker 02:
Unfortunately, I have a lot of points to address, but I'll address them quickly.

[00:22:39] Speaker 02:
On the issue of Sullivan, this suggestion was made and responded to answering brief as well, that somehow the analysis was different because the statute involved a relating to aspect.

[00:22:55] Speaker 02:
I invite the court to take a look at Sullivan at 637, the court meticulously

[00:23:04] Speaker 02:
compares the elements, meticulously applies Taylor.

[00:23:10] Speaker 02:
The relating to aspect does not even enter the picture at that stage of the analysis.

[00:23:17] Speaker 02:
So frankly, to suggest that the analysis was somehow different in Sullivan is, I hate to say, disingenuous, and I think this court will find that with ease itself.

[00:23:30] Speaker 02:
As to the idea of there being an intrinsic

[00:23:34] Speaker 02:
or Actus Reus.

[00:23:40] Speaker 02:
That's why we cited the Holy Bull case and I'm sure there are many others like it.

[00:23:48] Speaker 02:
That illustrates that a federal court will entertain a defense which says, I did not know

[00:23:59] Speaker 02:
what I was doing.

[00:24:01] Speaker 02:
Simply in that case, the defendant was found to not have sufficient evidence to prove that.

[00:24:07] Speaker 02:
But the court entertained it and didn't reject that notion.

[00:24:12] Speaker 02:
That shows that there is no built-in actus reus.

[00:24:17] Speaker 02:
Last, with respect to general and specific and felony versus misdemeanor, we cited the Johnson case, which says,

[00:24:29] Speaker 02:
that the level of punishment has nothing to do with specific versus general.

[00:24:35] Speaker 02:
It has to do with policy.

[00:24:37] Speaker 02:
And the policy is around avoiding pregnancy and things of that nature.

[00:24:46] Speaker 02:
And so there is nothing to be distinguished between the statutes on that ground either.

[00:24:56] Speaker 02:
Last, with respect to the remand, I will only say that we now have submitted unchallenged proof that the I-130 visa petition is approved.

[00:25:10] Speaker 02:
Whether it wasn't approved then or not, whether the court needed to verify that, I'll pass on that issue.

[00:25:19] Speaker 02:
I just wanted to clarify that it is

[00:25:22] Speaker 02:
approved and with that I'll conclude unless the court has any further questions and beseech this court to find that Mr. Consiglio is not convicted of an aggravated felony and order the termination of his proceedings.

[00:25:38] Speaker 02:
Thank you.

[00:25:39] Speaker 04:
Thank you, counsel.

[00:25:40] Speaker 04:
Thank both counsel for their arguments in this case and the case just argued is submitted and that concludes our session for today.

[00:25:57] Speaker 02:
Hear ye, hear ye.

[00:25:58] Speaker 02:
All persons having had business with the Honorable the United States Court of Appeals for the Ninth Circuit will now depart for this court for this session.

[00:26:05] Speaker 02:
Now stands adjourned.