Aggravated Felonies

 

(A)  Lack of Authority to Reject Categorical Analysis.              The United States Supreme Court has consistently held that the Taylor categorical analysis applies to the determination whether the elements of the offense of conviction fall within a conviction-based statutory definition that triggers immigration or federal sentence consequences.  The BIA has consistently applied this analysis to this question in the immigration context.  The holdings of the circuits are likewise consistent on this point, where these issues have been raised.  There is no judicial authority for straying outside the elements of the statute of conviction (improperly to consider the facts of the case, even if they are included within the record of conviction), when the question is comparing a conviction to a conviction-based ground of deportation.[59]  Counsel must be alert to raise these limitations, to prevent improper deportations based on failure or refusal to follow the Taylor analysis.  A decision does not stand for a proposition that was neither raised nor decided in the case.[60]

            Three circuit court decisions, however, have improperly suggested the court may use facts within the record of conviction, but which do not constitute elements of the offense, to bring the offense of conviction within a ground of deportability.  The discussion is no more than dictum in each of these cases.

 

            In Sutherland v. Reno,[61] the Second Circuit found that a Massachusetts conviction of sexual assault and battery of a minor triggered the domestic violence deportation ground because the victim was the noncitizen’s 19-year-old stepdaughter and a household member, who was therefore a protected person under Massachusetts family violence law.  The petitioner did not object that the facts concerning the stepdaughter’s status were not shown by the record of conviction.  In fact, the decision does not discuss the source of those facts, or the lawfulness of basing a deportability decision upon them.  Sutherland does not in fact hold that it is proper to use a fact of the underlying offense, as opposed to restricting consideration to the elements of the offense of conviction, in determining whether a state conviction falls within the ground of deportation.  As to these issues, Sutherland is therefore nothing more than dictum.

 

            Second, in Singh v. Ashcroft,[62] the Third Circuit held that under the formal categorical analysis of Taylor v. United States, a conviction of unlawful sexual contact was not an aggravated felony of sexual abuse of a minor offense.  The court reasoned that “Singh’s statute of conviction is not phrased in the disjunctive in a relevant way [because] the statute is silent on the critical matter of the age of the victim.”[63]  Because the statute of conviction was not disjunctive in the sense that it included one or more offenses that had age of the victim as an element, and other(s) that did not, the statute did not invite the court to engage in divisible statute analysis.  The court then considered whether the aggravated felony category, sexual abuse of a minor, invited the court to look beyond the elements of the statute, and concluded that it did not:

 

Thus we must ask whether 8 U.S.C. §   1101(a)(43)(A) (and specifically “sexual abuse of a minor”) invites inquiry-that is, whether it is more like the amount-of-loss provision of 8 U.S.C. §   1101(a)(43)(M)(i), or more like provisions for “burglary,” 8 U.S.C. § 1101(a)(43)(G), or “crime of violence,” 8 U.S.C. §   1101(a)(43)(F).

 

            We think it clear that “sexual abuse of a minor” belongs in the latter category.  First, it is listed in the same subsection as “murder” and “rape,” two terms that share the common law pedigree of “burglary,” which was examined in Taylor itself.  Applying the maxim noscitur a sociis,[64] we would place “sexual abuse of a minor” in a similar mold.  Second, nothing in the phrase “sexual abuse of a minor” signals that a factual investigation is called for.  Congress could have enacted, for example, the language “any sex offense, where the victim of such offense was a minor”; such language, parallel to provisions like 8 U.S.C. § 1101(a)(43)(G) & (S), might direct our inquiry into the facts of the crime rather than its definition.  Third, in an area that so routinely implicates state laws, Congress is presumed to legislate against the backdrop of existing state statutes.  The widespread existence of state statutes specifically criminalizing sexual abuse of a minor, see, e.g., Ala.Code § 13A-6-67 (“Sexual abuse in the second degree”); Cal.Penal Code § 288.5 (“Continuous sexual abuse of a child”); 11 Del. C. § 778 (“Continuous sexual abuse of a child”); 18 Pa. Cons.Stat. §   6312 (“Sexual abuse of children”), supports the conclusion that Congress intended Taylor’ s formal categorical approach to be applied in this case.[65]

 

The essence of the holding of Singh, therefore, was that the strict categorical analysis required by Taylor applied to the question whether the Delaware conviction of unlawful sexual contact in the third degree constituted a sexual abuse of a minor aggravated felony, because (a) the Delaware statute had no element of age, and (b) the aggravated felony sexual abuse of a minor category did not “invite” the court to look to any extra elements beyond those required to convict.

 

            Therefore, the discussion in Singh of whether other aggravated felony categories such as fraud “invite” the court to go outside the elements shown by the record of conviction is, again, nothing more nor less than dictum.  See § 4.6(F), infra.

 

            Finally, in Gattem v. Gonzales,[66] the Seventh Circuit held an Illinois conviction for solicitation of a minor to commit a sexual act qualified as a conviction for sexual abuse of a minor, and thus as an aggravated felony rendering a foreign national ineligible for cancellation of removal.  The holding focused on whether the conduct of soliciting a minor under the statute of conviction fell within the aggravated felony definition of sexual abuse of a minor.  Once again, this decision did not result in a holding that it was proper to use a non-element fact from the record of conviction, because the respondent did not raise these issues or contest proof of the age of the victim of the offense: “Gattem acknowledged the conviction and admitted that the individual from whom he had solicited a sexual act was a juvenile under the age of 17.”[67]

 

            If there were any question about this rule, the Rule of Lenity requires the courts to give the benefit of the reasonable doubt to the noncitizen because of the drastic effects of deportation.  See § 4.41, infra.

 

[59] It is debatable whether the fraud offense aggravated felony, with a loss to the victim in excess of $10,000, is a purely conviction-based ground.  See § 4.6(D), infra.

[60] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) [“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[61] Sutherland v. Reno, 228 F.3d 171, 176-78 (2d Cir. 2000).

[62] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004).

[63] Id. at 163.

[64] FN14. “The meaning of a word is or may be known from the accompanying words.”  Black’s Law Dictionary 1060 (6th ed.1990).

[65] Singh v. Ashcroft, supra, at 164.

[66] Gattem v. Gonzales, 412 F.3d 758 (7th Cir. June 20, 2005).

[67] Id. at 761.