Aggravated Felonies

 

As a general rule, if a statute (or non-divisible part of a statute) encompasses both acts that do and do not fall within a ground of deportation, the Immigration Judge or BIA cannot sustain a removal finding on the basis of a conviction of violating that statute.[103]  Thus, to decide whether a crime is deportable by its nature, the BIA considers whether the minimum conduct necessary to violate the statute always falls within the definition of the deportable category of offense.[104] 

 

Applying the categorical analysis, if even the most minimal conduct punished under the statute triggers removal under the ground at issue, then the statute is said to be a “categorical” match to the ground of removal.[105]  However, if there is any way that a person can be convicted under a given statutory section, without committing an offense that triggers a ground of removal, then no convictions under that statute can be held to trigger removal under that ground.[106]  Another way to state the same idea is that the “full range of conduct”[107] punishable under the statute (or subdivision) must fall within the ground of removal.  If every part of a circle representing the conduct encompassed in the statute of conviction falls within a larger circle defined by the ground of deportation, that conviction triggers deportation under that ground.

 

            For example, the Ninth Circuit[108] held that taking a motor vehicle without permission was not categorically an aggravated felony (i.e., without needing to resort to divisible statute analysis) since the offense may be violated by one who “is a party or an accessory or an accomplice in the driving or unauthorized taking or stealing . . . .”[109]  In the Ninth Circuit, aiding and abetting an aggravated felony is not an aggravated felony.[110]  Since the statute, at its minimum, can be violated by aiding an abetting the substantive offense, no conviction under the California statute (even if the actor was the only perpetrator)[111] can be considered an aggravated felony without resort to the record of conviction.

 

Clearly the minimum-conduct test applies when the government bears the burden of showing removability as an aggravated felon.[112]  The test also applies, however, where the noncitizen bears the initial burden.  The noncitizen may bear the burden when charged with inadmissibility, or when applying for relief, [113] to show that s/he was not convicted under a set of elements that categorically triggers a ground of removal that renders the noncitizen inadmissible or ineligible for relief.  However, once a single set of elements has been identified, if conviction fails the minimum conduct test, the conviction cannot be found to trigger removal, regardless of who bears the burden.[114]

 

[103] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (“[t]he crime defined by [California Penal Code § 261.5(c)] qualifies as ‘sexual abuse of a minor’ and hence an aggravated felony if and only if the full range of conduct covered by it falls within the meaning of that term.”) (internal quotations and citation omitted); Michel v. INS, 206 F.3d 253, 270 (2d Cir. 2000) (opinion of Sotomayor, J.).

[104] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of “theft of a means of transportation,” in violation of Arizona Revised Statute § 13-1814, did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), where the record of conviction did not establish that the noncitizen had been convicted of violating a portion of the statute of conviction that required intent); Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996) (“if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on that statute”); Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957); Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D. Cal 1952); Matter of Reyes-Torres, File No. A91-406-680 (BIA 1999) (Texas DUI conviction does not constitute crime involving moral turpitude because it does not necessarily involve conduct that is morally blameworthy); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of N, 8 I. & N. Dec. 466 (BIA 1959) (malicious mischief).  See also Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980); Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957).

[105] See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 (9th Cir. Dec. 27, 2005) (Washington statute punishing making of a harassing telephone call, in violation if R.C.W. § 9.61.230(3)(b), “in all cases requires for conviction and felony punishment that there has been a threat to kill, so the minimum elements of this statutory provision necessarily include threatened use of violence.”).

[106] See, e.g., Singh v. Gonzales, 432 F.3d 533 (3d Cir. Jan. 3, 2006) (“We have held that another section of the Pennsylvania simple assault statute, 18 Pa. Cons.Stat. Ann. § 2701(a)(1), which states that “[a] person is guilty of assault if he ... attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another,” requires no more than a mens rea of recklessness, and therefore does not describe a crime of violence within the meaning of § 16(a).  Popal v. Gonzales, 416 F.3d 249, 254-55 (3d Cir. 2005) (citing Tran, 414 F.3d at 472).  It is not dispositive that the crime may be proven by a showing of specific intent – all that is necessary to place it outside § 16(a) is that it could also be established with proof of a lesser mens rea.”); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979).

[107] United States v. Rivera-Sanchez, 247 F.3d 905, 907-909 (9th Cir. 2001) (en banc).

[108] Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005).

[109] California Vehicle Code § 10851(a).

[110] United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002).

[111] Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. 2004), opinion withdrawn and superseded, 417 F.3d 1022 (9th Cir. Aug. 2, 2005).

[112] See Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. May 27, 2003) (Arizona conviction of aggravated driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs in violation of Arizona Revised Statutes § § 28-692(A)(1) and 28-697(A)(1), did not constitute crime of moral turpitude, since statute was divisible because one may be convicted under it for sitting in one’s own car in one’s own driveway with the key in the ignition and a bottle of beer in one’s hand, and the record of conviction did not establish that the defendant was convicted of violating the CMT portion of the statute), amended opinion on denial of rehearing, 343 F.3d 1075 (9th Cir. Sept. 11, 2003), overruling Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA Dec. 21, 1999); Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (Washington state conviction of third-degree assault is not a crime involving moral turpitude); Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962) (false statement, not deemed fraudulent).

[113] For example, when a noncitizen charged with inadmissibility is seeking a waiver under INA § 212(h), 8 U.S.C. § 1182(h).  See § 2.45, supra.

[114] See Matter of LVC, 22 I. & N. Dec. 594, 603 (BIA 1999) (en banc) (“[W]hen the statute under which an alien is convicted includes some crimes which may, and some which may not, involve moral turpitude, an alien is not excludable or deportable on moral turpitude grounds unless the record of conviction itself demonstrates that the particular offense involved moral turpitude.”) (emphasis supplied); Matter of R, 2 I. & N. Dec. 819 (BIA Jan. 27, 1944); Matter of T, 2 I. & N. Dec. 22, 23 (BIA Jan. 27, 1944) (“If the crime as defined does not necessarily involve moral turpitude, the alien cannot be excluded because in the particular instance his conduct was immoral.”).  Cf. Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376 (1948) (all doubts to be resolved in favor of the noncitizen).