Aggravated Felonies

 

In order to trigger the aggravated felony ground of deportation, the conviction must be for a crime, as defined in the jurisdiction in which the offense was committed.[41]  Where the conviction is for a minor offense that is not designated as a crime in the jurisdiction in which it was committed, a conviction does not trigger deportation under this ground.[42]  For example, a citation for marijuana possession in a federal park might not be considered a conviction for a crime.[43]

 

Where the prosecution could proceed either civilly or criminally, and chose to prosecute the defendant for a crime, the resulting conviction is considered to be for a crime.[44]

 

The BIA has recently held that the phrase “judgment of guilt” under the statutory definition of “conviction”[45] requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[46]  The court found that a “criminal” proceeding under Oregon law[47] that resulted in a finding of guilt was not a conviction for immigration purposes because the proceeding involved a “violation” rather than a crime, for a number of reasons: conviction of a violation does not result in any legal disability under Oregon law;  the defendant does not have a right to a jury or court-appointed counsel in those proceedings; and the prosecution need only show guilt by a preponderance of the evidence, rather than beyond a reasonable doubt.[48]  Therefore, the proceedings were not criminal proceedings under federal immigration law, and the result was not a conviction for purposes of triggering a conviction-based ground of deportation.

Other states may have similar proceedings that will not result in a “conviction” for immigration purposes.[49]  For example, in California, certain misdemeanor offenses, notably petty theft,[50] can be prosecuted as misdemeanors or infractions.[51]  The infraction is similar to the Oregon petty offense procedure held in Eslamizar not to be a conviction in several important respects:

 

            (1)  “An infraction is not punishable by imprisonment.”[52]

 

            (2)  “A person charged with an infraction shall not be entitled to a trial by jury.”[53]

 

            (3)  There is no right to the assistance of court-appointed counsel.[54]

 

Although the defendant must be proved guilty beyond a reasonable doubt,[55] on balance, the California infraction procedure cannot be said to be a criminal procedure, because of the reasons stated above.  In Eslamizar, the Board en banc held “that by ‘judgment of guilt’ Congress most likely intended to refer to a judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[56]  Even though the burden of proof for an California infraction is beyond a reasonable doubt, that single factor should be insufficient to convert a proceeding without the right to a jury trial, without the right to appointed counsel, and for which no jail sentence is permissible, into “judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[57]  Therefore, an infraction under California law should not be considered a criminal conviction, for immigration purposes, under Eslamizar.

 

If a violation is described as an “offense,” to comply with local jurisdictional requirements, that label does not necessarily prevent its classification as a crime for removal purposes, when it is actually a crime.[58]  The label given to an act by a state or local jurisdiction does not control decision of the question whether the offense constitutes a crime within the meaning of the Immigration and Nationality Act.[59]  In one case, even where the local jurisdiction treated the matter as civil, the BIA held that a guilty finding rendered the conduct a crime for purposes of former 8 U.S.C. § 1251(a)(4)(A).[60]  It is questionable, however, whether the Board would reach such a result today.[61]  Even if a state legislature calls an act a misdemeanor, the conduct may be considered a crime for removal purposes when the act in question was a “crime at common law involving an act intrinsically and morally wrong and malum in se.”[62]

 

Juvenile delinquency is not regarded as a crime, and a person who is regarded under local law as a juvenile offender or juvenile delinquent has not been convicted of a crime for immigration purposes.  The fact that a noncitizen was a minor at the time the offense was committed does not in itself exempt him or her from deportation on account of a conviction so long as the conviction occurred in adult court.  See also § 3.41, infra.

 

            Military convictions of minor offenses, or even of major offenses, which are punished in a perfunctory manner as “non-judicial punishment,” do not constitute convictions of “crimes,” and thus cannot trigger deportation under any of the deportation grounds requiring criminal convictions.[63] This is true because no incarceration is possible as a result of this minor and informal procedure, and because the procedure cannot be called a criminal procedure so as to result in a criminal conviction of a crime.[64]  See also § 3.30, infra.

 

            A foreign conviction for conduct not deemed criminal under United States law does not trigger deportation.  See § 3.26(A), infra.

 

            A conviction must be for a crime that is really a crime.  For example, an attempt to commit a crime which has recklessness as a mental element was held not to be a crime at all, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”[65]  A conviction of a defendant for conspiring with only one other person may not be considered a conviction of a crime, if the particular offense (e.g., sale of drugs), cannot be committed without the involvement of at least two persons.  There may be other examples.

 

[41] Ex parte Isojoki, 222 Fed. 151 (N.D. Cal. 1915).

[42] Matter of Van Dessel, 243 F.Supp. 328 (E.D. Pa. 1965) (fornication considered to be a minor offense); Matter of C, 2 I. & N. Dec. 367 (BIA 1945).

[43] Since a citation for possession of marijuana in a National Park does not carry a jail sentence, it is possible it does not constitute a crime and therefore cannot trigger deportability as a conviction of a crime related to a controlled substance. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc).

[44] Matter of W and B, 5 I. & N. Dec. 87 (BIA 1953).

[45] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[46] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004) (emphasis supplied).

[47] Oregon Revised Statutes § 153.076.

[48] Matter of Eslamizar, 23 I. & N. Dec. at 687.

[49] See, e.g., California Penal Code § 19.6.

[50] California Penal Code § § 484(a), 488.

[51] California Penal Code § § 17(d), 19.8 (giving list of offenses).

[52] California Penal Code § 19.6.

[53] Ibid.

[54] Ibid.

[55] See California Penal Code § 19.7 (“. . . all provisions of law relating to misdemeanors shall apply to infractions including . . . burden of proof.”).

[56] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004) (emphasis supplied).

[57] Ibid.

[58] Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959) (soliciting men to commit a crime against nature or other lewdness; the state’s classification is not controlling since Congress intended to apply uniform federal standard, applicable in all states); United States v. Flores-Rodriquez, 237 F.2d 405 (2d Cir. 1956); Matter of P, 8 I. & N. Dec. 424 (BIA 1959) (Massachusetts conviction of lewdness); Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (conviction by police court for theft, even though statute designates such prosecution as civil proceeding); Matter of G, 7 I. & N. Dec. 520 (BIA 1957) (disorderly conduct: soliciting a man for an immoral purpose)); Matter of W, 4 I. & N. Dec. 401 (BIA 1951) (practicing prostitution), reversed on other grounds by Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967)).

[59] Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir.), cert. denied,  368 U.S. 926 (1961).  See § 4.39, infra.

[60] Matter of CR, 8 I. & N. Dec. 59, 61 (BIA 1958).

[61] See Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[62] Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929) (noncitizen convicted of stealing $15.00 and sentenced to confinement for one year was deportable, even though Massachusetts law classified the offense as a “misdemeanor”); Squires v. INS, 689 F.2d 1276 (6th Cir. 1982) (common-law crime committed in Canada was analogous to a felony in local jurisdiction and resulted in deportability of noncitizen); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. denied, 362 U.S. 913, 80 S.Ct. 662 (1959) (“disorderly conduct,” consisting of loitering, defined as an “offense” by New York law, was nevertheless a “crime involving moral turpitude”).

[63] Belliss, Consequences Of A Court-Martial Conviction For United States Service Members Who Are Not United States Citizens, 51 Naval L. Rev. 53, 57 n.23 (2005)(“Whether the finding of guilty and imposition of punishment by a summary court-martial officer against an accused amounts to a conviction for immigration purposes is likely answered in the negative. See Middendorf v. Henry, 425 U.S. 25, 40-42 (1976). In Middendorf, the Supreme Court held that “a summary court-martial is procedurally quite different from a criminal trial” and thus is not a criminal prosecution within the meaning of the Sixth Amendment. Id. at 40. See 1 Francis A. Gilligan & Frederic I. Lederer, Court-Martial Procedure §   8-31.30 (2d ed.). See also United States v. Kelly, 45 M.J. 259 (1996).”).

[64] See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc).

[65] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div. 1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).