LPR Ordered Removed by IJ & BIA Due to Aggravated Felony was Granted Relief After Ninth Circuit Order
N/AOUTCOME: Approved
In 2003, Client was charged with “possession or control of child pornography” in violation of California Penal Code (PC) § 311.11(a). He pleaded guilty to the charge and was sentenced to a few days in ... jail and probation. In 2013, the Immigration Judge ordered Client’s removal because he had determined that the PC § 311.11(a) conviction was an aggravated felony based on the Board of Immigration Appeals’ (BIA) decision in Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012). Through prior counsel, Client appealed to the BIA but the BIA dismissed his appeal. Client then hired us to file a petition for review with the Ninth Circuit Court of Appeals. In order to qualify as an aggravated felony, the court must compare the elements of California PC § 311.11(a) with the elements of the federal child pornography offense. PC § 311.11(a) would be an aggravated felony if its elements are the same as or narrower than those of the federal child pornography offense. We argued before the Ninth Circuit that PC § 311.11(a) was broader than the federal offense based on Tecklenburg v. Appellate Division, 169 Cal.App.4th 1402 (3rd Dist. 2009), wherein the California Court of Appeals had compared the elements of PC § 311.11(a) with those of the federal offense. However, while Client’s case was pending before the Ninth Circuit, the court issued its decision in Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015), which held that a PC § 311.11(a) conviction was not an aggravated felony because it was broader than the federal offense. Because the issues and criminal laws involved in Client’s case and in Chavez-Solis were identical and the arguments were similar to some extent, the Ninth Circuit remanded Client’s case to the BIA to give the BIA the opportunity to correct its previous decision. Thus, in March 2016, the BIA applied the ruling in Chavez-Solis and terminated Client’s removal proceedings. Client has successfully retained his permanent resident status.
