Rachel Game

I thought this was a well reasoned and pragmatic  opinion written by Judge Callahan.  I particularly liked the part of the opinion when the Court refuses to remand simply to allow the government to introduce evidence to supplement the  record of conviction that was available at the time the NTA was issued. It also denied the government the opportunity to allege a new ground for removal based on a conviction that was in existence at the time the government began removal proceedings.   I am left wondering whether why the trial attorney did not get factual allegations into the record? Could be simple under preparation on the part of the Trial Attorney because of the overwhelming work load they create for themselves?   See the latest ICE memo regarding the budget constraints and priorities in removal operations.

The Court held that California Penal Code § 236 False Imprisonment was not categorically a CIMT because  comparing it with the generic definition of a CIMT, it lacks the element of scienter, or the intent to cause harm. Although the Court does not it was strictly necessary to employ a modified categorical approach because the statute lacked all elements of the generic crime, it does go onto apply the Silva Trevino modified categorical approach. First, the Court looked whether there was a realistic probability that a person could be convicted of the statute for actions that did not amount to a CIMT. It found that a person could be convicted of the statute without the intent to harm, for example in the case of a citizen’s arrest. Second, the Court looked to the record to see if there were any factual allegations to support a finding that the Respondent’s actions satisfied all the elements of a CIMT. The Court determined the record was devoid of any factual allegations. It therefore concluded that Saavedra-Figueroa’s conviction under CPC 236 was not a CIMT.