Aggravated Felonies

The rules for categorical analysis of the nature of a conviction, to determine whether it triggers a conviction-based ground of deportation, require:

            (a) limiting the inquiry to the elements of the statute of conviction, and ignoring the facts of the case or underlying conduct of the defendant.  See § 4.17, infra. 

            (b) limiting the inquiry to the record of conviction before the criminal court at the time the conviction occurred, and prohibiting reference to facts or documents outside that record.  See § 4.16, infra. 

The separate question of going beyond the elements of a conviction, where Congress has specified non-element facts as part of a ground of deportation (or an exception to a ground of deportation), is discussed in § 4.6(F), infra.

            The Board of Immigration Appeals has uniformly applied this analysis across the board to every conviction-based ground of deportation, including crimes of moral turpitude, controlled substances offenses, firearms offenses, domestic violence convictions, and aggravated felony convictions.[52]   The BIA may not arbitrarily change its published interpretation of the law without providing a reasoned explanation.[53]  In particular, it cannot lawfully simply rubber-stamp a decision of an Immigration Judge violating these rules via a streamlining process.[54]

            There are several contexts in which courts are especially tempted to go outside the elements of the offense of conviction: (a) to determine the age of the victim to see whether the offense constitutes an aggravated felony as sexual abuse of a minor[55] or an offense involving a child under the domestic violence deportation ground;[56] (b) to determine the existence of a domestic relationship between the defendant and the victim that might bring a conviction within the domestic violence deportation ground;[57] and (c) to determine the amount of loss to the victim(s) of a fraud offense, to see whether it constitutes an aggravated felony fraud conviction.[58]  The categorical analysis, however, applies universally to the question of determining the nature of the conviction for immigration purposes.

[52] See, e.g., Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (holding police reports not part of record of conviction in deciding firearm deportability); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (holding that testimony in immigration court was not part of record of conviction for determining firearm deportability); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (same for moral turpitude deportability); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999)(same for aggravated felony ground of deportation).

[53] See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (allowing agency to change its interpretation, but only if it provided a reasoned explanation).

[54] Ng v. Att’y Gen., 436 F.3d 392, 395 n.4 (3d Cir. Feb. 7, 2006) (open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge’s decision: “We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. § 1003.1(e)(4).  See Smiriko v. Ashcroft, 387 F.3d 279, 289 n.6 [“[I]t would seem to be, at the very least, an open question as to whether an IJ’s decision affirmed through the streamling process would be entitled to Chevron deference . . .  [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic.”); cf. Singh, 383 F.3d at 152 (“[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .”)).

[55] See § 5.70, infra.

[56] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.157, (2005).

[57] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.154, (2005).

[58] See § 5.54, infra.