DE JESUS PLATON
29 I. & N. Dec. 7
BIA2025Background
- Leobardo De Jesus-Platon, a Mexican citizen, was convicted in 2012 in California for making criminal threats in violation of Cal. Penal Code § 422, a crime classified as a crime involving moral turpitude (CIMT).
- The conviction subjected him to removal and made him ineligible for cancellation of removal under INA § 240A(b)(1)(C).
- Following changes to California's sentencing laws (Cal. Penal Code § 18.5), the Ninth Circuit remanded to the Board of Immigration Appeals (BIA) to reconsider his eligibility.
- Meanwhile, De Jesus-Platon sought and obtained post-conviction relief under Cal. Penal Code § 1473.7, vacating his criminal conviction, and moved the BIA for a remand based on this development.
- The BIA denied the motion to remand and dismissed his appeal due to insufficient evidence that the conviction was vacated for a substantive or procedural defect, rather than for immigration-related reasons.
- The Acting Attorney General designated the BIA’s decision as precedent in similar cases.
Issues
| Issue | De Jesus-Platon's Argument | DHS Argument | Held |
|---|---|---|---|
| Does amendment to Cal. Penal Code § 18.5 retroactively alter the INA definition of a CIMT conviction with a possible 1-year sentence? | The change in CA law retroactively reduces the max sentence and should affect eligibility under INA. | Federal law controls; retroactive state changes do not alter federal standards. | State amendments do not affect INA’s backward-looking inquiry; federal standard applies. |
| Does Matter of Velasquez-Rios violate the Tenth Amendment and federalism? | It unlawfully interferes with California’s authority over its criminal law. | No impermissible interference; federal immigration law prevails. | No Tenth Amendment or federalism violation; federal law governs eligibility. |
| Was the conviction vacated for a valid substantive/procedural reason under Cal. Penal Code § 1473.7 sufficient to permit remand? | Conviction was vacated and should eliminate bar to cancellation. | Lack of proof that vacatur was for a substantive/procedural defect, not immigration hardship. | No remand—insufficient evidence that vacatur was for a qualifying reason. |
| Is Flores-Vasquez v. Garland or Latter-Singh v. Holder controlling on whether Cal. Penal Code § 422 is a CIMT? | Section 422 is not categorically a CIMT under more recent law. | Latter-Singh/Flores-Vasquez hold section 422 is categorically a CIMT. | Section 422 is categorically a CIMT; precedent remains controlling. |
Key Cases Cited
- Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) (establishing that Cal. Penal Code § 422 is categorically a CIMT)
- Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021) (holding that state retroactive sentence reductions do not alter federal immigration law criteria)
- Flores-Vasquez v. Garland, 80 F.4th 921 (9th Cir. 2023) (reaffirming that Cal. Penal Code § 422 is a CIMT)
- McNeill v. United States, 563 U.S. 816 (2011) (supporting backward-looking inquiry for maximum sentence in federal law)