Pannu v. Holder
2011 U.S. App. LEXIS 9566
| 9th Cir. | 2011Background
- Pannu, a native of India, came to the U.S. in 1990 as a lawful permanent resident.
- In 1994, Pannu was convicted twice for indecent exposure; the second conviction was a felony requiring sex-offender registration.
- In 2001, he was convicted of misdemeanor theft; in 2002, he was convicted of failing to register as a sex offender under California law.
- In 2004, he received a Notice to Appear charging removability for two or more CIMTs and for an aggravated felony (later withdrawn).
- An IJ pretermitted relief and ordered removal for two CIMTs; the BIA held indecent exposure convictions were CIMTs.
- On prior appeal, the court found the indecent exposure convictions not categorically CIMTs and remanded for a modified categorical analysis or reconsideration of the failure-to-register CIMT; on remand, the BIA held the failure-to-register conviction to be a CIMT, rendering Pannu removable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper CIMT definition after Silva-Trevino | Pannu argues CIMT requires scienter; strict-liability convictions like registration may not be CIMTs. | BIA and Tobar-Lobo treated California failure-to-register as CIMT under prior precedents; Chevron deference applies to certain BIA determinations. | Remand to reconsider CIMT under Silva-Trevino's scienter standard. |
| Effect of intervening authorities on CIMT status of CA 290(g)(1) | Subsequent cases undermine the BIA’s strict classification of failure to register as CIMT. | Intervening decisions support treating failure to register as CIMT under governing standards. | Remand for BIA to reevaluate under proper standard. |
| Whether Tobar-Lobo analysis remains controlling post-Silva-Trevino | Tobar-Lobo’s categorical CIMT conclusion for CA 290(g)(1) should be revisited. | Tobar-Lobo remains persuasive under Chevron deference and prior BIA precedent. | Remand to apply Silva-Trevino-definied scienter, potentially altering CIMT status. |
| Impact of Silva-Trevino on indecent-exposure CIMT status | Indecent-exposure convictions should be analyzed with scienter; may not be CIMTs. | BIA previously relied on categorical determinations for indecent exposure as CIMTs. | Not decided; remand to consider under Silva-Trevino framework. |
Key Cases Cited
- INS v. Ventura, 537 U.S. 12 (2002) (remand to agency for decision on statute placement)
- Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (Chevron deference to BIA unpublished CIMT determinations when based on precedents)
- Silva-Trevino v. Holder, 24 I. & N. Dec. 687 (A.G. 2008) (scienter required; realistic probability standard; guides CIMT definition)
- Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007) (California 290(g)(1) construed as CIMT under pre-Silva-Trevino analysis)
- Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008) (rejected de novo standard for CIMT in favor of a more nuanced analysis)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic probability standard for applying statutes to conduct)
- Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004) (remand when BIA applies erroneous legal standards)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (establishes deference framework for agency interpretations)