[00:00:00] Speaker 01: Next case on calendar is Sanchez Rivera versus Garland can come up when you're ready. [00:00:42] Speaker 01: You can proceed when you're ready. [00:00:53] Speaker 03: Good morning, Your Honors, and may it please the Court, Peter Kurtz on behalf of Petitioner Juan Sanchez Rivera. [00:00:59] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:01:03] Speaker 03: The petition should be granted because the BIA erred in holding that Mr. Sanchez Rivera's conviction under California Penal Code Section 245 qualifies as a crime of violence. [00:01:14] Speaker 03: Under the board and plurality's decision, the Supreme Court precedent board in the United States, the mens rea for a crime of violence requires directing force at or targeting another person. [00:01:25] Speaker 03: Because Section 245 does not require that type of targeting or directing of force, the crimes are not a categorical match. [00:01:33] Speaker 03: in section 245 does not qualify as a crime of violence. [00:01:37] Speaker 03: I'd like to start with Borden's plurality opinion. [00:01:39] Speaker 03: As I mentioned, the mens rea requirement for crime of violence as set forth in Borden is that a force must be directed at or targeted at another person. [00:01:53] Speaker 03: That means that the defendant must consciously direct the force at that person. [00:01:59] Speaker 03: It's not enough that the defendant merely be aware of the victim's presence. [00:02:06] Speaker 03: We submit that this is the standard that the court should apply here. [00:02:10] Speaker 03: Now, boarding is important not only because it sets forth the mens rea standard, it also teaches courts how to apply that standard in cases like this one where there's a criminal statute. [00:02:22] Speaker 03: And Borden says in particular that courts should take the mens rea from the criminal statute and map it onto the demand that force be directed at or target another person. [00:02:35] Speaker 03: Let me provide an example from Borden's plurality, where the court considered whether an offense that required reckless conduct satisfied the mens rea requirement for crime and violence. [00:02:48] Speaker 03: The court did this mapping analysis. [00:02:50] Speaker 03: It took the recklessness standard and mapped it onto the demand that force be directed at or target another person. [00:02:56] Speaker 03: And it concluded that an offense that requires only reckless conduct does not satisfy the crime and violence standard because reckless conduct is not directed at or targeted in the manner that a crime and violence requires. [00:03:10] Speaker 03: Subsequent quick cases in this circuit have applied this mapping analysis, including Begay, United States Begay, which is an en banc decision of this court, as well as an unpublished, although well-reasoned, but unpublished decision, United States Vie Vega, which we cite in our brief. [00:03:29] Speaker 03: So let me turn now to section 245. [00:03:33] Speaker 03: The mens rea for section 245 comprises two elements, one, [00:03:38] Speaker 03: It's an intentional act, and two, awareness of facts sufficient to establish that the act is likely to cause a battery. [00:03:47] Speaker 03: As the California Supreme Court has said in People v. Williams, that standard requires awareness of facts from which a reasonable person would conclude that a battery is likely to occur. [00:04:02] Speaker 03: The crux of this case, of course, is the meaning of this second element. [00:04:07] Speaker 03: It criminalizes conduct that is less culpable than the mens rea for a crime of violence because it does not require a defendant to direct force at or target another person. [00:04:19] Speaker 03: The easiest way to see this is to look at the California Court of Appeal case law. [00:04:24] Speaker 03: We cite one case on our decision. [00:04:26] Speaker 03: This is the opening brief at page 14, People v. Flanagan. [00:04:29] Speaker 03: It's important, or it's telling, that the government never addresses this case in their answer brief. [00:04:37] Speaker 03: In Flanagan, the defendant fled from the police, drove dangerously through San Francisco, entered into a parking garage, and exited out the other side, where he collided with a police officer that was involved in the pursuit. [00:04:51] Speaker 03: The prosecution admitted that the defendant had never seen the police officer when they collided. [00:04:57] Speaker 03: Nonetheless, the Court of Appeal affirmed the Section 245 conviction because the court [00:05:06] Speaker 03: concluded that the defendant had been aware of facts from which a reasonable person would conclude that a battery is likely to result. [00:05:14] Speaker 03: These facts satisfy the section 245 standard, but they do not satisfy Borden. [00:05:20] Speaker 03: The Flanagan defendant could not have directed, forced, or targeted another person because everyone agreed that the defendant didn't even know that the police officer was there, was present. [00:05:32] Speaker 03: Now compare these facts of Flanagan [00:05:35] Speaker 03: relevantly analogous to one of the hypotheticals that Justice Kagan provides in the board in plurality. [00:05:42] Speaker 03: She provides an example of a late commuter who deliberately runs through a red light and hits a pedestrian that the commuter did not see. [00:05:53] Speaker 03: According to Justice Kagan, that commuter has not committed a crime of violence because he has not trained his car at a pedestrian, understanding he will run the pedestrian over. [00:06:03] Speaker 03: so too with the defendant in Flanagan. [00:06:07] Speaker 03: That resolves this case because it means there is a realistic probability that California would apply the state statute to encompass conduct that is not within the federal crime and violence definition. [00:06:21] Speaker 03: But Flanagan is not anomalous. [00:06:23] Speaker 03: We cite additional cases in our brief where defendants would have the mens rea for section 245 but not for the federal standard. [00:06:32] Speaker 03: One of these is People v. Aznavola. [00:06:35] Speaker 03: This is the case where the defendant was street racing and deliberately drove through a red light where he struck a car that was entering an intersection and making a turn. [00:06:47] Speaker 03: Now, this case is admittedly a closer call because the defendant admitted that he had seen the car, the victim's car, enter the intersection. [00:06:57] Speaker 03: But there's no evidence that the defendant in Osnovole directed his car at or targeted the victim's car. [00:07:06] Speaker 03: Seeing the car enter the intersection is not the same thing as directing the car at the victim. [00:07:13] Speaker 03: In fact, there was evidence to suggest in Osnovole that the defendant did not know the cars would collide because he made no effort to stop, slow down, or avoid a collision. [00:07:23] Speaker 02: By arguing that Borden requires targeting and directness, and these cases that you're talking about follow suit, are you arguing that Borden held that only intentional crime satisfied the mens reo? [00:07:37] Speaker 03: Your Honor, the key is as to whether there's an awareness of harm, whether there's [00:07:48] Speaker 03: Yeah, you have to look more at the consequences, whether there's directing of conduct. [00:07:55] Speaker 03: So you can intentionally create force, as in the case in Osnabola, where the person, the defendant drives through the red light and drives dangerously. [00:08:05] Speaker 03: That's the intentional conduct there. [00:08:07] Speaker 03: But again, there wasn't the mens rea as to [00:08:13] Speaker 03: the consequences of that conduct. [00:08:15] Speaker 02: Yeah, but there doesn't have to be certainty as to the outcome. [00:08:18] Speaker 02: That's not the question either, because I think that's where Vasquez-Gonzalez sort of went astray, that there's somehow, you know, if there's a probability of some outcome, you know, the difference between the certainty and the probability is sort of what that case focused on, and that can't be the test either. [00:08:35] Speaker 03: No, you're right. [00:08:36] Speaker 03: I agree that it's not about the certainty outcome. [00:08:42] Speaker 03: It's really an awareness. [00:08:45] Speaker 03: It's a culpability as to understanding that the conduct is directed to get. [00:08:55] Speaker 03: I mean, I come back to that word because that's the word that Boran uses. [00:08:58] Speaker 03: It's direction. [00:08:59] Speaker 03: It's understanding that there's an awareness of harm. [00:09:01] Speaker 03: That's what this court said in United States v. Vega, that the assumption underlying [00:09:08] Speaker 03: Borden and Begay is this notion that the defendant has to have some awareness of harm. [00:09:15] Speaker 03: That's an appropriate gloss on what Borden holds. [00:09:22] Speaker 03: Going back to Asnavola, it's helpful, I think, to compare Asnavola to another one of the hypotheticals in the plurality opinion in Borden. [00:09:32] Speaker 03: in particular, the individual in Borden who acted with knowing mens rea. [00:09:41] Speaker 03: And Justice Kagan says that this is the getaway driver who sees a pedestrian in his path and plows ahead anyway, knowing that the car will run the pedestrian over. [00:09:52] Speaker 03: That training of the car, that knowledge [00:09:56] Speaker 03: element is what makes that a crime of violence. [00:09:58] Speaker 03: And that conduct is just missing from the defendant in Osnovola. [00:10:04] Speaker 03: In short, the California Supreme Court has set forth a standard that does not require directing force that are targeting another person. [00:10:12] Speaker 03: And that standard has been adopted and applied by numerous court of appeal decisions. [00:10:17] Speaker 03: Section 245 does not satisfy the mens rea requirement for crime of violence. [00:10:24] Speaker 03: I want to mention a few points about this case's cases or this circuit's prior precedent on section 245. [00:10:31] Speaker 03: First, the precedential decisions that precede Borden are clearly irreconcilable with Borden because they interpreted the mens rea requirement for a crime of violence. [00:10:45] Speaker 03: They used a motive analysis that is invalid under Borden. [00:10:49] Speaker 03: In particular, they interpreted Borden [00:10:53] Speaker 03: or they interpreted Borden to include all the conduct that's proscribed by section 245. [00:10:59] Speaker 03: And that would include conduct where the defendant was only aware of facts, from which a reasonable person would conclude that a battery was likely to result. [00:11:07] Speaker 03: Of course, after Borden, that does not satisfy, that conduct would not satisfy the mens rea standard for a crime of violence. [00:11:16] Speaker 03: As to the cases that have come since Borden, [00:11:20] Speaker 03: a couple of points about why they are deserving of less weight. [00:11:24] Speaker 03: First, as the panel well knows, under Circuit Rule 36-3, unpublished memoranda dispositions are not precedential and don't bind this panel. [00:11:35] Speaker 03: But also, the way in which the Section 245 issue was presented to this Court in those decisions counsels against giving the persuasiveness of those decisions. [00:11:47] Speaker 03: So in Mann v. Morton, [00:11:49] Speaker 03: the thrust of the defendant's argument there is different than the argument that Petitioner is advancing here. [00:11:56] Speaker 03: There, the defendants were arguing that the mens rea and people leave Williams is really one of negligence as that term is defined in the model penal code. [00:12:06] Speaker 03: Of course, that's not what Petitioner is arguing here. [00:12:11] Speaker 03: In Sanchez, [00:12:12] Speaker 03: briefing was already underway when Borden was issued. [00:12:16] Speaker 03: And so the panel there only had the benefit of the reply brief and two supplemental briefs. [00:12:23] Speaker 03: And of course, since then, the law has developed further. [00:12:26] Speaker 03: In particular, the Begay decision was decided. [00:12:34] Speaker 03: If the court has no further questions, I'll reserve the rest of my time. [00:12:36] Speaker 01: Okay. [00:12:37] Speaker 01: Thank you. [00:13:04] Speaker 00: May it please the court. [00:13:05] Speaker 00: My name is Jacqueline Shea for the Attorney General of the United States. [00:13:09] Speaker 00: I ask this court to come to two conclusions. [00:13:13] Speaker 00: One, the board properly concluded and relied on Vasquez-Gonzalez as precedent to find a petitioner's conviction here was a crime of violence. [00:13:23] Speaker 00: And two, [00:13:24] Speaker 00: Petitioner's argument that Borden abrogated Vasquez Gonzalez is unavailing because this court has consistently held, has been consistent with Borden to find that reckless conduct is not sufficient for a crime of violence. [00:13:42] Speaker 00: Your Honors, first I will address how the agency properly concluded that the petitioner was convicted of an aggravated felony crime of violence. [00:13:51] Speaker 00: The board in this case. [00:13:52] Speaker 01: Let me first ask you, you can get back to that, but are you still persisting in the argument that Sanchez Rivera has waived his ineffective assistance of counsel? [00:14:03] Speaker 00: Yes, your honor. [00:14:04] Speaker 00: I think it's pretty apparent from his opening brief that that has been waived. [00:14:07] Speaker 01: OK, well let me ask you about that, because my reading of the BIA's no prejudice finding here is that it was entirely based on its determination that he was convicted of a crime of violence. [00:14:20] Speaker 01: that his entire opening brief is spent sort of disputing that conclusion. [00:14:25] Speaker 01: So how is that? [00:14:27] Speaker 01: How's that a waiver forfeiture? [00:14:30] Speaker 00: Well, Your Honor, in this case, the I.J., the decision in the I.J.' [00:14:34] Speaker 00: 's decision had no analysis, basically, because it found that he was removable by the crime of violence because it was at a pleading mission by counsel. [00:14:44] Speaker 00: He was represented by counsel in the immigration hearing. [00:14:47] Speaker 00: And his counsel conceded that it was a crime of violence. [00:14:51] Speaker 00: And that concession that he was removable is at page 73 and 74 of the record. [00:14:56] Speaker 00: And then, Your Honors, before the board, he no longer had counsel. [00:15:01] Speaker 00: But in his notice of hearing, he specifically said the reasons that he was appealing to the board, the IJ's decision, was that there was no analysis on the aggravated felony ground, as well as he brought up that his conviction was not an aggravated felony and that he had IAC. [00:15:17] Speaker 00: And he also said that he should have been granted further continuances to pursue his I-130 relief. [00:15:24] Speaker 00: That's what he raised in there. [00:15:26] Speaker 00: He requested an extension of his board brief. [00:15:29] Speaker 00: The board granted that extension, that first extension, and it specifically said when they granted it that no further extensions will be granted. [00:15:37] Speaker 00: And he ultimately did not file a brief in this case. [00:15:40] Speaker 00: He filed a second exception after his brief was already due. [00:15:44] Speaker 00: So the board looked to his notice of hearing of what he would have raised as he was pro se at the time. [00:15:51] Speaker 00: And the only thing that he could have raised before the board at that time was the IAC. [00:15:56] Speaker 00: And he had no relief that was actually submitted in this case. [00:16:00] Speaker 00: So the only potential issue is whether he was removable at all based on the crime of violence. [00:16:06] Speaker 00: So the board did provide and supplement that analysis and explain why it was a crime of violence. [00:16:11] Speaker 00: And in their decision, they explained that he was immovable based on this precedent in this course of Vasquez-Gonzalez. [00:16:20] Speaker 00: Does that answer your question, Your Honor? [00:16:22] Speaker 00: Go ahead. [00:16:22] Speaker 00: Yeah, you can go on. [00:16:26] Speaker 00: Your Honor, the court's holding in Vasquez Gonzalez remains intact because the Supreme Court held consistent with this court's precedent that reckless conduct is not enough to meet the mens rea requirement of 16A. [00:16:39] Speaker 00: The holding in boarding, Your Honors, was a narrow holding. [00:16:42] Speaker 00: We had four, one, and four decision. [00:16:44] Speaker 00: And the Supreme Court held that the offense that may be committed with recklessly mens rea element was not sufficient for a violent felony under that. [00:16:54] Speaker 00: Armed Career Criminal Act. [00:16:56] Speaker 00: The Parality reached its conclusion by looking to the meaning of the statutory phrase at issue, use of physical force against another person, and examining the context and purpose of the ACA and considering its other prior decisions that had similar statutory language. [00:17:13] Speaker 00: Before analyzing that statutory language, Justice Kagan went to defining the four different types of mens rea, purposely, knowingly, reckless, and negligent, and specifically made a line in the sand saying, [00:17:28] Speaker 00: that any mens rea of recklessness or negligence was insufficient for a crime of violence. [00:17:34] Speaker 00: So after Borden, Your Honors, the takeaway from Borden is that an offense that can be committed by reckless causation of injury and nothing more does not involve the use, attempted use, or threatened use of physical use against another person. [00:17:49] Speaker 00: And Your Honors, the petitioner here [00:17:51] Speaker 00: is taking certain terms from the plurality decision in Borden, not even a full quoted phrase, and creating a requirement that simply does not exist. [00:18:02] Speaker 00: Borden, again, the context is important. [00:18:04] Speaker 00: It was interpreting what 16A means. [00:18:07] Speaker 00: And when it was discussing or noting the critical aspect of 16A and that demand for the use of physical force, it was merely showing its work and explaining which part of the statutory language [00:18:19] Speaker 00: is where the mens rea element comes from. [00:18:23] Speaker 00: Again, in your honor, I think you asked him specifically, what does he mean by this directing act? [00:18:30] Speaker 00: Is it still an awareness of harm? [00:18:33] Speaker 00: And I think he had some difficulty explaining it. [00:18:37] Speaker 00: But looking at it as he takes it as targeting or directing, it looks like specific intent. [00:18:45] Speaker 00: And as this court has found in Amaya v. Garland, specific intent is not required for a crime of violence. [00:18:51] Speaker 00: knowledge or general intent is sufficient, is exactly what we have under this statute. [00:18:58] Speaker 00: And it's clear from this court's decision in Vasquez Gonzalez, the court explained that it's met its definition for a crime of violence because the California Capri court [00:19:10] Speaker 00: specifically rejected that conclusion that the mens rea for assault could be satisfied by negligent or reckless conduct. [00:19:17] Speaker 00: Now, this court has, and I think Greta and some other decisions explain that there is some, you know, in People v. Williams, in some of the court cases, the language is not as clear or it's a little confusing, but what is clear from People v. Williams is that a negligent or reckless mens rea is not sufficient under the statute. [00:19:39] Speaker 00: And this court has reaffirmed Vasquez Gonzalez in two cases following Borden. [00:19:45] Speaker 00: And in both cases, that argument was specifically rejected, that Borden abrogated Vasquez Gonzalez. [00:19:57] Speaker 00: Again, petitioners' cases, his California cases that he mentions, Flanagan, Avalon, they do not call into question people V. Williams holding. [00:20:08] Speaker 00: Why? [00:20:09] Speaker 00: Because they are not from the Supreme Court of California. [00:20:12] Speaker 00: They are decisions from lower California courts. [00:20:17] Speaker 00: And we can address in both of those, too, the facts that do show that the mens rea is more than recklessness, which is a no injure ens lea. [00:20:26] Speaker 00: For example, in Flanagan, it was a high-speed police chase. [00:20:31] Speaker 00: He evaded police twice before that incident, and he had sped, and even one of those, he crashed in a guardrail. [00:20:38] Speaker 00: He had an awareness that his speeding [00:20:42] Speaker 00: that, similar to the example that was in Borden, that a pedestrian in his path would plows him over anyway. [00:20:50] Speaker 00: Again, he had an awareness of knowledge, and that demonstrates that. [00:20:54] Speaker 00: Azoleen, and again in that case, he admitted that he saw the vehicle turning left before he hit it. [00:21:02] Speaker 00: He even, in that case, had passengers in his car saying several times to slow down. [00:21:08] Speaker 00: One even screamed that the light was red. [00:21:11] Speaker 00: All those facts show that he had knowledge of knowledge of Andrea. [00:21:17] Speaker 00: And again, to kind of go through the elements of the statute here, as this court did in Vasquez Gonzalez, the conviction under 245 Charlie, which is at issue here, which in the same statute applies as Vasquez Gonzalez. [00:21:34] Speaker 00: I think the court in footnote eight of Vasquez Gonzalez said that the current statute [00:21:39] Speaker 00: before the court was equally, the current version, basically the statutory language is nearly identical. [00:21:47] Speaker 00: And I think in his opening brief, he doesn't dispute at all that the language changed. [00:21:51] Speaker 00: I think it only basically just takes out one word of the prior statute, the same provision. [00:21:57] Speaker 00: So that reasoning and holding of Vasquez-Gonzalez equally applies to the case at issue. [00:22:03] Speaker 00: So the statute at issue requires an intentional act or a use of force. [00:22:08] Speaker 00: and that the defendant was aware of the facts that would lead to a reasonable person to realize that he would directly, naturally, and probably result in the application of force to someone. [00:22:21] Speaker 00: That statute [00:22:23] Speaker 00: As the court found in Vasquez Gonzalez, you know, had a greater mens rea than recklessness that was required to convict under that statute. [00:22:32] Speaker 00: So we are consistent with the board and decision. [00:22:35] Speaker 00: So the whole, this court's holding in Vasquez Gonzalez remains intact. [00:22:45] Speaker 00: I also want to briefly address this new mens rea requirement that they're arguing. [00:22:50] Speaker 00: They're relying primarily on Borden. [00:22:52] Speaker 00: Again, Borden does not require that force has to be directed or targeted against another person. [00:22:58] Speaker 00: That is, again, taking certain terms and it's out of context and creating a requirement that does not exist. [00:23:04] Speaker 00: Again, he relies on Vega, and that decision is unpublished. [00:23:08] Speaker 00: It is a little confusing, but when you go back and listen to the actual oral argument in that case, [00:23:13] Speaker 00: as well as look at the decision itself, it seemed that the panel was mainly concerned that only minor force could be resulted from the statute at issue, as well as the statute at issue in that case was a battery statute, not an assault statute as we have here, and there was no mens rea required other than the intent to do the act. [00:23:37] Speaker 00: where here, conversely, we have the intent to do the act, as well as we have the mens rea of knowledge and awareness of the harm. [00:23:47] Speaker 00: Petitioner also relies on being gay and primarily relies on the concurrence in that case. [00:23:54] Speaker 00: The majority in that case similarly found, as Borden, that it was a limited holding. [00:24:00] Speaker 00: And to emphasize that is the court in Benguet also quoted, I think it was at 1094 in the decision, that Ferdinand's Rooney's [00:24:13] Speaker 00: held only that offenses committed with a mens rea of recklessness or gross negligence do not qualify as a crime of violence. [00:24:20] Speaker 00: And that's specifically a narrow holding in that decision, as well as the narrow holding in Borden, that the only thing Borden found was that a reckless mens rea was not sufficient for a crime of violence. [00:24:30] Speaker 00: And the concurrence in that case, which he relies on, specifically concedes that there's more than one plausible reading of Borden. [00:24:39] Speaker 00: And the court here should look to that more narrow reading of Borden as the only thing it found. [00:24:46] Speaker 00: When you compare Thomas's concurrence with the plurality in the decision, the main holding from that case is that a reckless mens rea was insufficient for a crime of violence. [00:25:09] Speaker 00: Your honors, is there any additional questions that you have? [00:25:12] Speaker 01: No, thank you very much. [00:25:14] Speaker 00: May I briefly conclude? [00:25:15] Speaker 00: Is that? [00:25:16] Speaker 00: Yeah, you can. [00:25:16] Speaker 00: Thank you, your honor. [00:25:17] Speaker 00: In summary, the agency properly concluded that Vasquez Gonzalez is controlling a petitioner's conviction for a crime of violence and violate a petitioner's conviction under CPC 245 Charlie. [00:25:29] Speaker 00: And his sentence of 16 months qualified as a crime of violence rendering him removable. [00:25:35] Speaker 00: Accordingly, we ask this court to deny the petition for review. [00:25:38] Speaker 00: Thank you. [00:25:46] Speaker 03: Just a few points in rebuttal. [00:25:49] Speaker 03: The government says that we have taken Borden out of context. [00:25:52] Speaker 03: It's relying on stray terms, but that's plainly incorrect. [00:25:56] Speaker 03: Borden says repeatedly, and we have the sites in our brief, that a crime of violence, this is a plurality decision, requires directing force at or targeting another person. [00:26:06] Speaker 03: As to waiver, the BIA plainly conducted a de novo review of whether the conviction, Mr. Sanchez Rivera's conviction, qualified as a crime of violence. [00:26:18] Speaker 03: In this court, the government admits that de novo review is appropriate and further says that the BIA also did a de novo review of the issue. [00:26:28] Speaker 03: So in this court, de novo review is appropriate. [00:26:36] Speaker 03: On the California Court of Appeal decisions that we cite, the government says that these are intermediate court of appeal decisions that this court doesn't need to follow. [00:26:46] Speaker 03: But it's a basic proposition that intermediate state courts are entitled to deference unless there's evidence that the state supreme court would look at the issue differently. [00:26:57] Speaker 03: And here, these court of appeal decisions are faithfully applying people v. Williams. [00:27:06] Speaker 03: It's the government that's asking for a new mens rea standard under section 245. [00:27:12] Speaker 03: And finally, the government says that we are citing the concurrence in Begay. [00:27:18] Speaker 03: That's not correct. [00:27:19] Speaker 03: We cite the majority opinion where the majority repeatedly goes through analysis of mapping the crime and violence mens rea of targeting or directing force and determines that second degree murder meets that standard. [00:27:34] Speaker 03: That's the same [00:27:35] Speaker 03: framework that this court should apply in determining that Section 245 is not a crime of violence. [00:27:43] Speaker 03: The panel has no further questions. [00:27:46] Speaker 03: We ask that the petition be granted. [00:27:48] Speaker 03: Thank you. [00:27:48] Speaker 01: Thank you very much. [00:27:49] Speaker 01: We thank both counsel for their arguments. [00:27:52] Speaker 01: This case is submitted.