Aggravated Felonies

 

The analysis of whether a conviction triggers deportation as an aggravated felony turns on the exact elements of the offense as defined by the legislature, sometimes as interpreted by the courts, and sometimes as elucidated by the “record of conviction.”[11]  This is called the “categorical” analysis because it depends upon the category of the crime, not the facts as they occurred in the specific case.  The categorical analysis should be specifically distinguished from a “factual” analysis in which the courts can look to what actually happened in order to determine, for example, whether the DHS has “reason to believe” a noncitizen has engaged in drug trafficking for purposes of establishing inadmissibility.[12]

 

            The categorical analysis is used in a number of contexts both within and outside of the immigration context.  In the immigration context, the categorical analysis is used for the purposes of determining whether, under a conviction-based ground of removal,[13] a conviction constitutes a crime involving moral turpitude,[14] a firearms conviction,[15] a controlled substance offense,[16] or a domestic violence offense,[17] in addition to determining whether the conviction constitutes an aggravated felony.[18]  Outside the immigration context, the categorical analysis is also used, for example, when determining whether a prior criminal conviction can be used to convict a defendant of being a felon in possession of a firearm,[19] or when determining whether a prior conviction triggers a sentence enhancement for illegal re-entry,[20] or as a career offender in federal court.[21]  Taylor v. United States,[22] upon which most categorical analysis cases are based, and the recent Shepard[23] case from the United States Supreme Court are both concerned with the Armed Career Criminal Act, but their analysis applies with full force to the immigration context.[24]  Therefore, cases from a number of contexts will be discussed, not just aggravated felony immigration cases.

            The BIA has set out the classic categorical analysis as follows:

 

In determining whether a crime involves moral turpitude, it is the nature of the offense itself which determines moral turpitude. Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979). It is the inherent nature of the crime as defined by statute and interpreted by the courts and as limited and described by the record of conviction which determines whether the offense is one involving moral turpitude. Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); United States v. Neelly, 208 F.2d 337 (7th Cir. 1953); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974); Matter of H, 7 I. & N. Dec. 616 (BIA 1957). The statute under which the conviction occurred controls. If it defines a crime in which turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for the purposes of the deportation statute. United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); United States ex rel. Mylius v. Uhl, 210 F. 860 (2d Cir. 1914). Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted. Matter of Esfandiary, supra; Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of Lopez, 13 I. & N. Dec. 725 (BIA 1971); Matter of S, 2 I. & N. Dec. 353 (BIA, AG 1945).[25]

 

The categorical analysis, as reflected in this description, often involves at least two steps. 

 

The first step is an examination of the statute of conviction itself, as written by the legislature, and interpreted under the law of the convicting jurisdiction.  See § § 4.3-4.5, infra.  The second step, sometimes referred to as the “modified categorical” or “divisible-statute” analysis is where the reviewing court is allowed to examine a limited number of documents called the “record of conviction” to further assist the reviewing court in determining which exact offense, within a divisible statute that includes more than one offense, was the specific offense of which the defendant was found guilty.  This second step is discussed in § § 4.14-4.32, infra.

 

            Unfortunately, many courts are less than consistent in applying this analysis.  The areas in which the circuits, and even individual decisions within a circuit, differ most are: (1) when the record of conviction may be examined,[26] (2) what information constitutes the record of conviction,[27] and (3) for what purpose may the record of conviction be examined.[28]

[11] See § 4.14, infra.

[12] INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).

[13] Compare a conduct-based ground of removal, such as the reason to believe drug trafficking ground of inadmissibility.  INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C).

[14] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989).

[15] Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996).

[16] Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979).

[17] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

[18] Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).

[19] See, e.g., United States v. Ladwig, 432 F.3d 1001 (9th Cir. Dec. 27, 2005).

[20] See, e.g., United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sexual battery, under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a “forcible” sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)); United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb 27, 2003) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code Ann. § 30.02(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another), vacated and superseded on rehearing, 388 F.3d 466 (5th Cir. Oct. 15, 2004).  But see United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (taking indecent liberties with a child, in violation of North Carolina General Statutes Annotated § 14-202.1(a)(1), is a crime of violence, as sexual abuse of a minor, for sentencing purposes under U.S.S.G. § 2L1.2, following illegal re-entry; this holding based on “common meaning,” rather than “categorical” analysis); United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (since court’s consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense “by its nature” fits a certain definition, as opposed to the question whether a conviction constitutes a “crime of violence” under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case).

[21] See, e.g., United States v. Granbois, 376 F.3d 993 (9th Cir. July 22, 2004) (conviction under 18 U.S.C. § 2244(a)(3), sexual contact with a child, is a “crime of violence” for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.1).

[22] Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990).

[23] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005) (applying Taylor to convictions arising from a guilty plea).

[24] 18 U.S.C. § 924(e) (imposing a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies).

[25] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989).

[26] See § § 4.9-4.13, infra.

[27] See § § 4.21-4.32, infra.

[28] See § 4.17, infra.