[00:00:12] Speaker 03:
Good morning, Your Honors.

[00:00:13] Speaker 03:
May it please the Court, Joshua Feinzig, pro bono counsel, for Petitioner, Mr. Jonas Afra.

[00:00:18] Speaker 03:
I'd like to reserve three minutes for rebuttal.

[00:00:21] Speaker 03:
Since this case was briefed in 2019, the issues have crystallized.

[00:00:25] Speaker 03:
Here's where things are.

[00:00:26] Speaker 04:
Could you lower the microphone a little bit so that I can hear you better?

[00:00:29] Speaker 03:
Absolutely, Your Honor.

[00:00:32] Speaker 03:
So we challenge the board's determination both as to Mr. Offra's removability and as to his inadmissibility.

[00:00:40] Speaker 03:
The board determines that Mr. Offra is removable by virtue of having committed an offense relating to obstruction of justice by way of California Penal Code Section 136.1B1, that's subdivision B, which distinguishes this case from the one just heard.

[00:00:56] Speaker 03:
The board also determines that Mr. Offra is inadmissible

[00:00:59] Speaker 03:
because he had been sentenced to a total of over five years of imprisonment.

[00:01:03] Speaker 03:
The board aired in both respects, and we'd like to start with the question of removability.

[00:01:09] Speaker 03:
After Pugin and Cordero Garcia,

[00:01:12] Speaker 03:
Our removability claim has narrowed to a very important issue that, respectfully, to Judge Coe's point, the Ninth Circuit has not yet decided.

[00:01:21] Speaker 03:
And that is the question of whether the conduct or the actus reus of merely dissuading a witness from reporting a crime is broader than the conduct prohibited by the federal definition of obstruction.

[00:01:33] Speaker 03:
It clearly is.

[00:01:35] Speaker 03:
B1 covers dissuasive speech writ large.

[00:01:38] Speaker 03:
It does not require

[00:01:40] Speaker 03:
of the speech be accompanied by force, threat, coercion, compulsion, or any other aggravating quality.

[00:01:47] Speaker 03:
It doesn't have to have a pending proceeding, and there is no malice requirement.

[00:01:54] Speaker 01:
But 18 U.S.C.

[00:01:56] Speaker 01:
1512 also prohibits whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades.

[00:02:03] Speaker 03:
The actus reus at 1512D, which I believe Your Honor is referring to?

[00:02:07] Speaker 01:
I'm sorry, say that one more time.

[00:02:08] Speaker 03:
The actus reus of 1512D, which I believe is what you're... Correct.

[00:02:12] Speaker 01:
From attending or testifying in an official proceeding.

[00:02:16] Speaker 01:
Yes.

[00:02:16] Speaker 01:
There's other language about hindering, delaying, or preventing the communication.

[00:02:22] Speaker 01:
It just seems like there are other federal statutes that explicitly or certainly implicitly cover dissuasion.

[00:02:30] Speaker 03:
So 1512D covers intentional harassment.

[00:02:34] Speaker 03:
Harassment refers to a very distinct set

[00:02:38] Speaker 03:
of conduct from mere dissuasion.

[00:02:40] Speaker 03:
B1 covers any dissuasive speech act with the intent of influencing a witness from reporting a crime.

[00:02:47] Speaker 03:
That could be a driver to another driver after a fender bender.

[00:02:51] Speaker 03:
Can we just settle this off the books?

[00:02:52] Speaker 03:
That could be a friend to another after observing shoplifting or narcotics use.

[00:02:59] Speaker 03:
It's better not to call the police.

[00:03:01] Speaker 03:
Those kinds of instances, those kinds of actions are not intentional harassment as 1512D.

[00:03:07] Speaker 01:
It was a state court case where somebody would have been prosecuted for the examples that you give.

[00:03:12] Speaker 03:
So I would refer the court first to Waheedi.

[00:03:14] Speaker 03:
We would also refer the court to Brackens, and I'm happy to discuss the conduct at issue in those cases in just a moment.

[00:03:20] Speaker 03:
But at the outset, it is important to note that we do not need to demonstrate an actual instance of prosecution under the categorical approach.

[00:03:30] Speaker 03:
The Supreme Court and this court have been very clear.

[00:03:32] Speaker 03:
In Esquivel-Quintana, for example, the Supreme Court said that

[00:03:36] Speaker 03:
the court needs to reason from quote the minimum conduct covered by the plain text of the state law.

[00:03:43] Speaker 03:
The court also said that it's the least conduct that could be criminal under a state law that comes into the categorical approach analysis the Supreme Court echoed

[00:03:53] Speaker 03:
that point and tailor a 2022 categorical approach case.

[00:03:57] Speaker 00:
Critical possibility.

[00:03:58] Speaker 00:
It has to be a real possibility that someone would actually be prosecuted for that.

[00:04:02] Speaker 00:
Let me ask you.

[00:04:02] Speaker 00:
Can't hear you.

[00:04:04] Speaker 00:
I'm sorry.

[00:04:04] Speaker 00:
Go ahead.

[00:04:06] Speaker 04:
Go ahead.

[00:04:08] Speaker 03:
I hear you.

[00:04:08] Speaker 03:
I couldn't hear the judge.

[00:04:09] Speaker 03:
Thank you, Your Honor.

[00:04:10] Speaker 03:
So first, it has been a real, empirically, there have been prosecutions.

[00:04:15] Speaker 03:
Again, Waheedi was a case where

[00:04:17] Speaker 03:
A defendant approached a witness at a mosque after a religious ceremony, apologized for the assault that had previously occurred, and asked if the witness would be open to some kind of conflict mediation alternative within the Muslim tradition.

[00:04:32] Speaker 03:
The witness did not experience that as a threat.

[00:04:35] Speaker 03:
There was no harassment.

[00:04:36] Speaker 03:
There was no compulsion.

[00:04:38] Speaker 03:
In fact, the witness asked the prosecution if they could drop the case as a result.

[00:04:42] Speaker 03:
of being entreated to such an alternative resolution.

[00:04:45] Speaker 03:
And it was only then that the prosecutor decided to prosecute under B1.

[00:04:49] Speaker 01:
In footnote three of Cordero Garcia, the Ninth Circuit said that any argument that dissuading a witness would render the crime broader would be unavailing.

[00:05:03] Speaker 01:
One who intends to dissuade a witness or victim from reporting a crime necessarily intends to prevent that report.

[00:05:11] Speaker 03:
Yes, Your Honor, but the question of whether the conduct of dissuasion is a categorical match was not ventilated in Cordero Garcia.

[00:05:18] Speaker 03:
The court was very clear that the petitioner in that case did not raise this argument.

[00:05:22] Speaker 01:
The petitioner had only raised... Right, but they still addressed the argument though.

[00:05:25] Speaker 01:
They said in any event, such an argument would be unavailing.

[00:05:30] Speaker 03:
And respectfully, that is footnoted dicta that is regrettably incorrect.

[00:05:35] Speaker 03:
And that's because in analyzing whether the conduct of mere dissuasion is a match for obstruction of justice, there are two to three considerations that the court must run through that are outlined in

[00:05:49] Speaker 03:
and that are also outlined in Esquivel, Quintana, and other categorical approach cases.

[00:05:55] Speaker 03:
That includes looking to federal law.

[00:05:57] Speaker 03:
Your Honor, reference 1512D.

[00:05:59] Speaker 03:
Again, 1512D just criminalizes intentional harassment, which is a much more severe kind of act than mere dissuasion.

[00:06:09] Speaker 03:
In fact, the board did not rely on 1512D.

[00:06:12] Speaker 03:
It only relied on 1512B as the relevant analogy.

[00:06:15] Speaker 03:
1512B criminalizes corrupt persuasion of a witness

[00:06:19] Speaker 03:
And this court and the Supreme Court have been unequivocally clear that corrupt persuasion of a witness is fundamentally different from mere persuasion.

[00:06:26] Speaker 03:
We direct the court to Arthur Anderson, where the court said that corrupt persuasion

[00:06:30] Speaker 03:
refers to bribery, it refers to corrupting a witness.

[00:06:34] Speaker 03:
Mere dissuasion as criminalized under B1 is not corrupt persuasion, nor is it intentional harassment.

[00:06:40] Speaker 03:
So Congress has never criminalized mere dissuasion of a witness.

[00:06:44] Speaker 03:
Moving to the state level, and this is a crucial point that we hope the court takes away from today, in 1996, when the aggravated felony provision relating to obstruction of justice was enacted by Congress,

[00:06:55] Speaker 03:
there were very, very few states that criminalized mere dissuasion of a witness.

[00:07:01] Speaker 03:
There were only three.

[00:07:02] Speaker 03:
We draw that number from the Solicitor General's brief in Pugin.

[00:07:05] Speaker 03:
That's footnote 17, page 40, the Solicitor General's brief.

[00:07:09] Speaker 03:
Only three states criminalized mere dissuasion of a witness.

[00:07:12] Speaker 03:
That includes California in 1996.

[00:07:14] Speaker 03:
So if mere dissuasion was not even widely considered a crime in 1996, much less a crime relating to the obstruction of justice, it is not possibly a categorical match.

[00:07:30] Speaker 03:
Now to the previous question from Judge Caesar.

[00:07:34] Speaker 04:
Are you claiming that Mr. Afro was convicted only for dissuasion of his girlfriend when he said if you get out of the closet I'll kill you?

[00:07:44] Speaker 03:
Respectfully, the underlying conduct is of no appease to the categorical analysis.

[00:07:49] Speaker 04:
But if we go to the modified categorical approach, what's your position?

[00:07:54] Speaker 03:
The modified categorical approach is not applicable here.

[00:07:57] Speaker 03:
The immigration judge was very clear about that.

[00:07:59] Speaker 03:
The board did not invoke the modified approach.

[00:08:01] Speaker 03:
And that's because the actus reus of B1, dissuasion or prevention, it's not separable.

[00:08:09] Speaker 03:
A jury does not need to determine whether a particular offense conduct

[00:08:14] Speaker 03:
is dissuasion as opposed to prevention.

[00:08:16] Speaker 03:
So certainly, the modified categorical approach does not operate in this case.

[00:08:20] Speaker 03:
Now, to Judge Koh's previous question and what I've heard from Your Honors more generally as to whether California has in fact prosecuted such instances of mere dissuasion, again, we direct the court to Waheedi and to Bracken.

[00:08:34] Speaker 03:
In both of those cases, which post state the case Navarro, which I imagine the government will be relying upon,

[00:08:40] Speaker 03:
the California Court of Appeals explained that the legislature was inclined to encourage the reporting of crimes, quote, encourage the reporting of crimes.

[00:08:50] Speaker 03:
So the legislature was very intent on criminalizing mere dissuasion, and the underlying conduct in those cases reflects as much.

[00:09:00] Speaker 03:
And in any event, if we don't think that empirical patterns of prosecution are relevant under the categorical approach, again,

[00:09:10] Speaker 03:
The court was very clear about this in Esquivel-Quintana.

[00:09:12] Speaker 03:
This court, in the first Cordero-Garcia decision in citing Esquivel-Quintana, along with the 2022 Supreme Court decision, Taylor, explained that there's no rationale.

[00:09:25] Speaker 01:
This is your best argument?

[00:09:29] Speaker 03:
I would say so.

[00:09:29] Speaker 03:
This is the crux of our case.

[00:09:31] Speaker 03:
We also raise an inadmissibility argument, which I'm happy to turn to.

[00:09:35] Speaker 03:
But we do think that the actus reus question of B1 is a very important one.

[00:09:41] Speaker 03:
If B1 comes in to relating to obstruction of justice, then everything comes in.

[00:09:46] Speaker 03:
B1 criminalizes mere dissuasion of a witness.

[00:09:50] Speaker 03:
a driver to another driver, a shoplifter to a shopkeeper, please don't call the police, my children need me.

[00:09:57] Speaker 03:
Those are acts that are clearly criminalized under B1, which again, only criminalizes and requires mere dissuasion, that is speech acts, with the intent of influencing the juror.

[00:10:08] Speaker 01:
15 minutes, you're spending 10 on an issue where the Ninth Circuit said that 136, pardon me, 130,

[00:10:19] Speaker 01:
point one B one is a categorical match, maybe address the argument that you're raising, albeit I agree in a footnote, Dicta.

[00:10:28] Speaker 01:
I don't know if that's the best use of your time, but you're welcome to continue on this point if you'd like.

[00:10:33] Speaker 03:
I'd like to turn to inadmissibility in just a moment, but the final point I would make about the footnote

[00:10:38] Speaker 03:
is that it's simply one sentence that relating to is broad.

[00:10:43] Speaker 03:
And we absolutely recognize as much.

[00:10:45] Speaker 03:
Relating to obstruction of justice extends beyond the generic definition.

[00:10:50] Speaker 03:
But again, the question is whether in 1996 it was widely understood that obstruction of justice included mere dissuasion.

[00:10:57] Speaker 03:
The states did not think so.

[00:10:59] Speaker 03:
Only three states criminalized mere dissuasion.

[00:11:01] Speaker 03:
And the federal government has never criminalized mere dissuasion.

[00:11:04] Speaker 03:
Now, as to the question of inadmissibility, we argue that

[00:11:08] Speaker 03:
The 2010 imposition of two years of incarceration should not count to the overall calculation as to how many... The sentence was suspended, was that imposed?

[00:11:21] Speaker 03:
Respectfully, Your Honor, the sentence was only imposed in 2010.

[00:11:27] Speaker 03:
There was no suspended sentence in 2009, which is the only probation was imposed in 2009.

[00:11:34] Speaker 04:
You can't get probation unless you suspend the sentence.

[00:11:37] Speaker 03:
We don't believe so, Your Honor.

[00:11:38] Speaker 03:
There's a very important distinction between suspending a two-year sentence, putting a defendant on probation, and then executing on that suspended sentence, and merely imposing probation, and then imposing a sentence on the back end after probation is violated.

[00:11:53] Speaker 03:
The latter is what happened in this case.

[00:11:55] Speaker 04:
When a sentence is stated and suspended pending probation, that sentence is entered at the time.

[00:12:06] Speaker 04:
of the conviction.

[00:12:08] Speaker 04:
It's not entered at the breaching of the probation.

[00:12:12] Speaker 03:
In this case, only three years of probation was entered at the time, in 2009.

[00:12:18] Speaker 03:
The sentence of two years... Because the sentence was suspended.

[00:12:22] Speaker 03:
Respectfully, Your Honor, no, there was no suspended sentence.

[00:12:25] Speaker 03:
Occasionally, judges will impose a sentence of incarceration, then suspend it, and then upon the violation of probation,

[00:12:33] Speaker 03:
uh, execute on the suspended sentence, which by the way, is subject to a, a very different evidentiary standard than in the case of Mr. Garcia, where it's merely probation imposed.

[00:12:43] Speaker 03:
And then after a violation of probation, the judge goes through the motions of imposing a sentence.

[00:12:47] Speaker 01:
I'm looking at ER 1529.

[00:12:50] Speaker 01:
It's the judgment in that case.

[00:12:52] Speaker 01:
And it says the two year sentence is for count two, which is a violation of penal code 12316B1.

[00:13:01] Speaker 01:
That was the principal count.

[00:13:03] Speaker 01:
That's what it's labeled.

[00:13:05] Speaker 01:
So clearly that was the sentence for the offense of which Mr. Afra was convicted.

[00:13:12] Speaker 03:
Yes.

[00:13:12] Speaker 03:
I see my time is, is running and would like to reserve, uh, but, but just to, to answer a Judge Coe's question, uh, we argue- And then I'm looking at California rule of court, 4.435.

[00:13:27] Speaker 01:
Now it does have the imposition of sentence was previously suspended, but it says the length of the sentence must be based on the circumstances existing at the time supervision was granted and subsequent events may not be considered.

[00:13:41] Speaker 01:
In selecting the base term or in deciding whether to strike any additional punishment for enhancements charged and found.

[00:13:47] Speaker 01:
So I'm in agreement with Judge Baia.

[00:13:50] Speaker 01:
Your client got leniency, could have gotten sentenced to two years originally, but was given probation.

[00:13:55] Speaker 01:
But when you violate the probation, then the sentence can be imposed.

[00:13:59] Speaker 03:
Yes, your honor.

[00:14:00] Speaker 03:
And there's an important distinction.

[00:14:02] Speaker 03:
The fact that he was given leniency is relevant when Congress was counting up sentences, counting up years of incarceration.

[00:14:10] Speaker 03:
It was probing what was imposed for the offense.

[00:14:15] Speaker 03:
When a defendant is merely given probation, that reflects a... But he wasn't given probation.

[00:14:20] Speaker 04:
He was given two years' sentence suspended and given probation so that he wouldn't have to serve the two years.

[00:14:27] Speaker 04:
I used to do that in Superior Court in San Francisco all the time.

[00:14:31] Speaker 03:
Absolutely, Your Honor.

[00:14:32] Speaker 03:
Our argument is that there is a distinction between no sentence imposed...

[00:14:37] Speaker 05:
How do you address the factual record here from the state court, what the state court did here?

[00:14:42] Speaker 03:
And I'll get to that in just a second.

[00:14:45] Speaker 03:
We think what's important is what the immigration judge said.

[00:14:48] Speaker 03:
for what it's worth, there is a jurisdictional question as to whether those kinds of state court documents can even be considered after Patel.

[00:14:54] Speaker 03:
But in any event, what the state court did for all intents and purposes is it did not impose a sentence in 2009 of incarceration.

[00:15:01] Speaker 05:
It imposed... I mean, you say all intents and purposes, but Judge Coe just read the document of what the state court did.

[00:15:08] Speaker 05:
Not intents and purposes, it's what it did.

[00:15:11] Speaker 03:
So if I might direct the court to the definition of sentence in the INA, I see my time is running.

[00:15:16] Speaker 03:
Would love to answer the question.

[00:15:17] Speaker 03:
The definition of sentence in the INA is the period of incarceration regardless of any suspension of the imposition or execution of that imprisonment or sentence.

[00:15:30] Speaker 03:
We read that to set up two grammatically parallel possibilities.

[00:15:33] Speaker 03:
the suspension of the imposition of imprisonment, or it's the suspension of the execution of a sentence.

[00:15:39] Speaker 03:
Neither of those occurred in this case.

[00:15:42] Speaker 03:
The government wants to read that to set up four possibilities, including the suspension of the execution of imprisonment, which doesn't make sense.

[00:15:50] Speaker 03:
No one speaks of imprisonment as being executed.

[00:15:53] Speaker 03:
It's a sentence of imprisonment that's executed.

[00:15:55] Speaker 03:
And in this case, there was no sentence imposed that was

[00:16:00] Speaker 03:
Thereupon, 2010, later executed.

[00:16:02] Speaker 03:
It was only probation that was imposed as of 2009.

[00:16:05] Speaker 03:
And the document from the sentencing court doesn't suggest otherwise.

[00:16:10] Speaker 03:
Thank you.

[00:16:11] Speaker 03:
Thank you, Your Honors.

[00:16:30] Speaker 02:
Good morning, Your Honors.

[00:16:31] Speaker 02:
May it please the court, Stephanie Hennis, for respondent.

[00:16:36] Speaker 02:
The petitioner in this case is a known gang member and career criminal who began his criminal conduct about seven months after he entered the United States.

[00:16:45] Speaker 02:
In 2009, he was convicted of violating California Penal Code 136.1B1, which was his sixth criminal conviction.

[00:16:55] Speaker 02:
As this court has pointed out throughout the morning, this court has already held that this crime constitutes an offense relating to obstruction of justice, which is an aggravated felony and unquestionably renders the petitioner removable.

[00:17:15] Speaker 02:
As relief from removal, the petitioner sought adjustment of status, but the agency denied his application because he was inadmissible for having two or more convictions with sentences of confinement of five years or more.

[00:17:30] Speaker 02:
He received a three-year prison sentence for the conviction for dissuading a witness and a two-year prison sentence for his violation for unlawfully possessing ammunition.

[00:17:45] Speaker 02:
The board relied only on this ground for denying adjustment of status, so the court... The two years was for what?

[00:17:54] Speaker 02:
Um, his violation of, uh, California penal code one, two, three, one, six B one, which is unlawfully possessing ammunition.

[00:18:05] Speaker 02:
Exactly.

[00:18:05] Speaker 02:
Your honor.

[00:18:06] Speaker 01:
Um, can you address their argument about the act as Reyes and that footnote three and Cordero Garcia's dicta and it's wrong.

[00:18:15] Speaker 01:
Sure.

[00:18:15] Speaker 01:
And the dissuasion argument.

[00:18:17] Speaker 02:
Okay, so a few aspects of this.

[00:18:20] Speaker 02:
First of all, the government does take the position that Cordero Garcia adequately addressed this issue.

[00:18:28] Speaker 02:
This court can't overrule another panel.

[00:18:30] Speaker 02:
The court in that case

[00:18:33] Speaker 02:
did address the question of whether a petitioner could raise an argument that dissuading would be something that would take this act outside of being an offense related to obstruction of justice.

[00:18:47] Speaker 02:
And it said the answer to that was no.

[00:18:50] Speaker 02:
I would also like to point out that much of what

[00:18:55] Speaker 02:
It was not dicta.

[00:18:56] Speaker 02:
It was required.

[00:18:57] Speaker 02:
So the court in Cordero came to the conclusion that there is a categorical match between 136.1B1 and an offense relating to obstruction of justice.

[00:19:10] Speaker 02:
In order to reach that decision, it had to analyze both statutes and come to the conclusion that it qualified as an obstruction of justice aggravated felony.

[00:19:21] Speaker 02:
Cordero Garcia was not looking at whether a certain side had met their burden of proof and said, weighing the options here, we find that this side didn't meet their burden.

[00:19:34] Speaker 02:
The court explicitly held that the statute in question here is an obstruction of justice aggravated felony and the court should not and cannot revisit that here.

[00:19:46] Speaker 02:
I would like to point out that while the petitioner has raised in a letter to this court the claim that they raised this lengthy argument in their briefing to this court, they did not.

[00:20:02] Speaker 02:
The portions of the brief that they're talking about referred to the issue of malice, which is no longer at issue following this court's decision in Cordero Garcia, and they also raised issues regarding a pending proceeding, which is also not at issue following the Supreme Court's decision in Pugin.

[00:20:24] Speaker 02:
A few things that I'd like to point out in relation to their argument, though, is that in Pugin, the Supreme Court identified witness tampering as a kind of obstruction of justice.

[00:20:39] Speaker 02:
When they were discussing the meaning of obstruction of justice, they pointed to definitions that refer to merely influencing a witness.

[00:20:48] Speaker 02:
The notion that this court could then look at the word dissuade

[00:20:54] Speaker 02:
and find that that falls outside of what they've already said in Cordero Garcia and outside of what the Supreme Court has said in Pugin, it simply can't occur here.

[00:21:07] Speaker 01:
Can I ask you just a clarifying question?

[00:21:12] Speaker 01:
So your argument is that even though footnote three says Cordero Garcia does not argue that the state statute's prohibition of dissuading a witness

[00:21:21] Speaker 01:
is broader, you're saying that the court in finding a categorical match would have had to effectively make a decision on actus rea and mens rea.

[00:21:34] Speaker 01:
And that statute was persuading or dissuade, what is it, preventing or dissuading.

[00:21:39] Speaker 01:
So you're saying our Ninth Circuit panel there addressed both the dissuading point and the actus rea's point?

[00:21:47] Speaker 01:
Is that your argument?

[00:21:48] Speaker 01:
That it necessarily would have had to render a ruling on that?

[00:21:51] Speaker 02:
It did, Your Honor, because it was making the determination that there is a match here.

[00:21:57] Speaker 02:
In order to make that determination, the court identified this as a potential issue and said, no, it is not a problem here.

[00:22:07] Speaker 02:
And one of the reasons for that is,

[00:22:10] Speaker 02:
As Cordero Garcia and Pugin pointed out, the petitioner has been talking about having a categorical match.

[00:22:18] Speaker 02:
And a match between obstruction of justice and the statute of conviction in this case is not what's required due to the relating to language.

[00:22:31] Speaker 02:
Pugin and Cordero Garcia explained that you don't need an obstruction of justice offense, you need an offense that has a connection to obstruction of justice.

[00:22:43] Speaker 02:
So even if there were some type of mismatch and the government maintains that there is not a mismatch,

[00:22:52] Speaker 02:
The relating to language helps to broaden what the court would be looking at in finding that the statute of conviction in this case is an offense relating to obstruction of justice.

[00:23:11] Speaker 02:
I would also point out

[00:23:29] Speaker 02:
that is relevant to the case here and they use that as a basis for coming to the conclusion that the statute of conviction is an offense relating to obstruction of justice.

[00:23:54] Speaker 02:
Moving on to the inadmissibility ground which was used for denying adjustment of status here, there's no question that the petitioner received a three-year prison sentence for his obstruction of justice conviction and then the

[00:24:19] Speaker 02:
The petitioner received a two-year sentence for illegally possessing ammunition after he had his probation revoked.

[00:24:32] Speaker 04:
Are you saying that?

[00:24:36] Speaker 04:
You're saying that the sentence wasn't imposed until his probation was revoked?

[00:24:40] Speaker 02:
Well, the sentence was suspended.

[00:24:43] Speaker 04:
That's a different matter.

[00:24:45] Speaker 04:
That was imposed but suspended on condition of probation.

[00:24:50] Speaker 02:
Exactly.

[00:24:50] Speaker 02:
And so then the length of the sentence ultimately amounted to two years.

[00:24:57] Speaker 02:
And the court had to make that sentence based on the circumstances that existed when probation was granted.

[00:25:06] Speaker 01:
Please respond to your opposing counsel's argument that the sentence was never suspended.

[00:25:18] Speaker 01:
That's what he's claiming.

[00:25:20] Speaker 04:
Never imposed.

[00:25:21] Speaker 01:
Never imposed.

[00:25:22] Speaker 01:
Okay.

[00:25:23] Speaker 01:
But also because it was never imposed, it was never suspended.

[00:25:31] Speaker 02:
When he pled guilty to illegally possessing ammunition, the court ordered the imposition of sentence suspended, placed him on probation, and then he received a two-year prison sentence not for violating his probation, but for violating for his December 15, 2009 conviction by guilty plea for illegally possessing

[00:26:01] Speaker 01:
ammunition it that's on the same pages that the court had pointed out before 15 AR 15 28 to let's say he had just gotten probation right and He had not gotten a two-year sentence imposed or suspended then when he came in for that violation of probation The judgment he would have gotten would have been a violation of probation judgment, right?

[00:26:26] Speaker 01:
It would not have been

[00:26:28] Speaker 01:
a judgment that says this is your sentence for your underlying 1231 offense.

[00:26:34] Speaker 01:
That's a different snap out that the Superior Courts give for a probation violation versus an actual original sentence, right?

[00:26:43] Speaker 01:
I mean, this judgment specifically says the two years is for PC-12316B1, principal count.

[00:26:51] Speaker 02:
Exactly.

[00:26:52] Speaker 02:
I mean, I think that that is the crux of the issue here.

[00:26:57] Speaker 02:
He was not given a prison sentence for violating his probation.

[00:27:02] Speaker 02:
He was given a prison sentence for illegally possessing ammunition.

[00:27:08] Speaker 02:
That is the issue here.

[00:27:13] Speaker 04:
Could you give me the page citation on the record about the imposition of the sentence for two years?

[00:27:22] Speaker 02:
I think it would be 1528.

[00:27:26] Speaker 02:
So look at 1527 through 1529.

[00:27:29] Speaker 02:
That is what I have in my notes here.

[00:27:33] Speaker 01:
I'm looking at 1529.

[00:27:35] Speaker 01:
It says, probation having been formally revoked, the previous restitution fine of $200 suspended per PC 1202.44 is now due.

[00:27:52] Speaker 01:
And then, so, I mean, it's all consistent with what Judge Bea said, that the sentence was suspended, and because he violated his probation, now that suspended sentence, including the restitution fine, is now being imposed.

[00:28:09] Speaker 02:
Yes, Your Honor.

[00:28:10] Speaker 02:
Yes, Your Honor.

[00:28:11] Speaker 02:
I mean, he did not receive a two-year prison sentence just for violating his probation.

[00:28:18] Speaker 02:
This is due to him illegally possessing ammunition, then being unable to comply.

[00:28:27] Speaker 04:
Commitment to the Department of Corrections and Rehabilitations for the middle sentence, he didn't get the lower sentence, he didn't get the upper sentence, he got the middle sentence for an indeterminate term of two years on count two.

[00:28:40] Speaker 04:
That's the principle count.

[00:28:42] Speaker 02:
That's the ammunition count.

[00:28:44] Speaker 02:
Exactly.

[00:28:44] Speaker 02:
Count two is illegally possessing ammunition.

[00:28:47] Speaker 04:
Then he got probation, so he wouldn't have to serve the sentence.

[00:28:51] Speaker 04:
And then he got violation of probation, so the sentence was executed.

[00:28:56] Speaker 02:
Exactly.

[00:28:57] Speaker 02:
Exactly.

[00:29:00] Speaker 02:
Does the court have other questions about that point?

[00:29:06] Speaker 02:
And I guess the only other thing I would point out is that that is the only issue that the court can reach regarding the adjustment of status denial.

[00:29:15] Speaker 02:
The petitioner raised arguments about his false claim to citizenship, which he actually admitted in removal proceedings, but the agency did not rely on that when they denied adjustment of status and instead looked to the criminal grounds that prevented him from

[00:29:35] Speaker 02:
adjusting.

[00:29:36] Speaker 02:
I would also point out to the court that this whole predicament is the petitioner's own doing.

[00:29:42] Speaker 02:
He entered the United States as a refugee.

[00:29:45] Speaker 02:
He engaged in years of criminal activity.

[00:29:51] Speaker 02:
He's a known gang member.

[00:29:52] Speaker 02:
He maintains that he is not a gang member, but DHS has... But that issue is not before us, right?

[00:29:58] Speaker 01:
Exactly.

[00:29:59] Speaker 01:
I'm not sure why you continue to raise his

[00:30:01] Speaker 01:
Well, his gang membership, when it's not really relevant to the issues we're looking at.

[00:30:06] Speaker 02:
The reason that I bring it up, Your Honor, is that he was making an equitable estoppel argument in his opening brief.

[00:30:13] Speaker 02:
And so I point out the equities for the purposes of his equitable estoppel claim.

[00:30:19] Speaker 02:
And if there's nothing more, the court should deny the petition for review.

[00:30:23] Speaker 05:
Thank you.

[00:30:24] Speaker 05:
Mr. Feinstein, you exceeded your time.

[00:30:25] Speaker 05:
I'll give you one minute.

[00:30:31] Speaker 03:
Thank you again, Your Honor.

[00:30:32] Speaker 03:
To start quickly on the inadmissibility question, there is a fundamental difference under the INA between a sentence of incarceration being suspended and the imposition of a sentence of incarceration being suspended.

[00:30:45] Speaker 03:
The latter happened in this case.

[00:30:47] Speaker 03:
The sentencing documents reflect as much.

[00:30:50] Speaker 03:
Again, we would refer you back to the definition of sentence in the INA.

[00:30:53] Speaker 03:
It sets up two, not four, grammatical possibilities.

[00:30:57] Speaker 03:
It only refers to counting

[00:31:01] Speaker 03:
the counting a sentence when it is imposed at the outset and then that sentence is suspended.

[00:31:08] Speaker 03:
As to whether we rate... That's what happened here.

[00:31:11] Speaker 03:
Respectfully no, Your Honor, there is a distinction and the court only imposed probation and then after the violation of probation imposed the sentence.

[00:31:20] Speaker 03:
So the sentence of incarceration

[00:31:22] Speaker 03:
the imposition of the sentence of incarceration was suspended.

[00:31:25] Speaker 03:
I see my time is running.

[00:31:26] Speaker 03:
I would just say quickly as to the Actus Reus theory, as to subdivision B, we did raise that argument.

[00:31:34] Speaker 03:
I direct the court to pages 19, 20, 21, and 37 of our opening brief.

[00:31:39] Speaker 01:
You know, I'm just going to say one thing.

[00:31:42] Speaker 01:
The INA at 1101 says, any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law, regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

[00:31:57] Speaker 01:
I understand your position.

[00:31:59] Speaker 01:
You don't think a sentence was ever suspended or imposed, but I think that language for me is fairly clear.

[00:32:08] Speaker 03:
Again, we read that to set up the suspension of the imposition of imprisonment or suspension of the execution of a sentence, which doesn't capture what happened in this case.

[00:32:18] Speaker 03:
Thank you very much, Your Honor.

[00:32:19] Speaker 05:
Thank you.

[00:32:19] Speaker 05:
The case has been submitted.