Aggravated Felonies

 

The court cannot, under any circumstances, look beyond the record of conviction to determine whether a conviction triggers removal as an aggravated felony offense, or otherwise falls within a conviction-based ground of removal.[176] “In deportation proceedings the immigration judge cannot go behind the judicial record to determine the guilt or innocence of an alien.  See Matter of Khalik, 17 I & N Dec. 518 (BIA 1980); Matter of McNaughton, 16 I & N Dec. 569 (BIA 1978); Matter of Fortis, 14 I & N Dec. 576 (BIA 1974).”[177]  Judge Learned Hand described this principle:

 

Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed.  When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.[178] 

 

This rule applies against the immigrant as well as the government.[179]  “We note that in the context of crimes involving moral turpitude, the Government has long opposed looking outside the record of conviction to resolve questions of deportability.  See, e.g., Tillinghast v. Edwards, 31 F.2d 81, 82-84 (1st Cir. 1929); see also Castle v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir. 1976).”[180]

 

It has been long acknowledged by this Court and every other circuit that has addressed the issue that crimes of theft, however they may be technically translated into domestic penal provisions, are presumed to involve moral turpitude.  Brett v. INS, 386 F.2d 439 (2d Cir. 1967), cert. denied, 392 U.S. 935, 88 S.Ct. 2304, 20 L.Ed.2d 1394 (1968); Soetarto v. INS, 516 F.2d 778 (7th Cir. 1975); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962).  Of course, it hardly takes a flight of imagination to conceive of circumstances in which acts technically constituting this type of offense could be viewed as entirely free of such a stigma. However, an alien convicted of theft cannot demonstrate such mitigation by relitigating the merits of the case before the INS or reviewing courts.[181]

 

Therefore, testimony of the noncitizen in immigration court cannot be used either to prove, or disprove, whether a conviction triggers removal.[182]  In Flores v. Ashcroft,[183] the Seventh Circuit held that the BIA was not entitled to look beyond the elements of the state battery offense of conviction to consider the actual conduct or underlying facts in order to assess whether Flores’ crime was an aggravated felony “crime of violence” under 18 U.S.C. § 16, for purposes of triggering deportation as a conviction of a crime of “domestic violence.”[184]  The court did not hold that it was proper in reaching this determination to go beyond the elements to the facts in considering whether the victim was a protected person within the meaning of the domestic violence ground of deportation.  The court simply held that the elements of the offense of conviction were insufficiently violent to fall within the definition of “crime of violence” for this purpose, and granted the petition for review since the respondent was not deportable under this ground.  In dictum, Flores did state that the noncitizen’s admission, at his removal hearing, that the assault victim was his wife, would be sufficient to establish that the offense took place against a person protected by the domestic violence ground of deportation, but its dictum shows flawed reasoning because it cited Sutherland v. Reno,[185] in support of this proposition, even though Sutherland did not hold any such thing.  See § 4.6(A), supra.

 

            The testimony of other witnesses presented during immigration proceedings likewise is not part of the record of the conviction in criminal court.[186] The Ninth Circuit has also held that statements by the defendant, made in the course of prosecution for illegal re-entry, regarding the facts underlying a prior conviction cannot be used when applying the divisible statute analysis.[187]

[176] Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005) (“Documents and testimony that would require us to make factual determinations that were not necessarily made in the prior criminal proceeding lie outside the scope of our inquiry under the modified categorical approach.”); Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir. 2004) (“While ‘it is proper [for the Board] to look to probative evidence outside the record of conviction in inquiring as to the circumstances surrounding the commission of [a] crime in order to determine whether a favorable exercise of discretion is warranted,’ ‘the Immigration Judge and this Board may not go beyond the record of conviction to determine the guilt or innocence of the alien.’), citing Matter of Mendez-Moralez, 21 I. & N. Dec. 296, 303 n.1 (BIA 1996) (emphasis added); Rassano v. INS, 377 F.2d 971 (7th Cir. 1966); United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939); United States ex rel. Mylius v. Uhl, 210 F. 860, 862-63 (2d Cir. 1914); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (the court was not free to go behind noncitizen’s convictions of simple larceny and consider circumstances in which offenses were committed, nor could the court consider the fact that convictions had been expunged from records of the noncitizen’s native country, but was required to determine the moral quality of the act upon the basis of the convictions themselves, and where noncitizen conceded that she had been convicted of simple larceny, that was a crime involving moral turpitude); Vidal y Planas v. Landon, 104 F.Supp. 384, 389 (S.D.Cal. 1952); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, 536 (E.D.Pa. 1947); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).

[177] Matter of Danesh, 19 I. & N. Dec. 669 (BIA 1988).  See also United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939); United States ex rel. Mylius v. Uhl, 210 F. 860, 862-63 (2d Cir. 1914); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (the court was not free to go behind noncitizen’s convictions of simple larceny and consider circumstances in which offenses were committed, nor could the court consider the fact that convictions had been expunged from records of the noncitizen’s native country, but was required to determine the moral quality of the act upon the basis of the convictions themselves, and where noncitizen conceded that she had been convicted of simple larceny, that was a crime involving moral turpitude); Vidal y Planas v. Landon, 104 F.Supp. 384, 389 (S.D.Cal. 1952); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, 536 (E.D.Pa. 1947); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974).  But see Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) (dictum).  See § 4.6, supra.

[178] United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931) (citations omitted).

[179] If this rule is to be breached, however, it would arguably violate due process to allow it to be breached only in favor of the government. E.g., Warden v. Hayden, 387 U.S. 294 (1967).

[180] Matter of Teixeira, 21 I. & N. Dec. 316, n.1 (BIA 1996); Matter of T, 3 I. & N. Dec. 641 (BIA 1949) (where a record of conviction is introduced in the immigration proceeding, the nature of the crime is conclusively established by the record of conviction and this rule precludes inquiry outside the record of conviction as to facts favorable and unfavorable to the noncitizen).  See also Alleyne v. INS, 879 F.2d 1177, 1185 (3d Cir. 1989).

[181] Chiaramonte v. INS, 626 F.2d 1093 (2d Cir. June 23, 1980) (noncitizen found guilty by foreign tribunal of crime of moral turpitude may not attempt to demonstrate through collateral attack in United States courts that his actions were only undertaken in response to exceptional circumstances and that he is morally blameless and unless records of original proceeding, including judgment, clearly reflect such extenuating circumstances, neither the INS nor the courts may consider extrinsic evidence in determining moral culpability of the offense).  See also Matter of T, 3 I. & N. Dec. 641, 642-643 (BIA 1949) (“It is true that in some cases this rule results in the deportation of an alien who has committed a petty offense that does not necessarily indicate moral obliquity and in a finding of nondeportability in some very few cases where the offense is indicative of bad character.  ‘But such results always follow the use of fixed standards and such standards are . . . necessary for the efficient administration of the immigration laws.’”), quoting U. S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S. D. N. Y. 1913), aff’d, 210 Fed. 860 (2d Cir. 1913).

[182] See Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. June 26, 2003) (statement by respondent’s accredited representative that respondent had been convicted of a felony offense has no legal effect, and is not a binding “admission” to having committed such offense; respondent’s subjective belief about the nature of his offense is irrelevant to the purely legal questions of the category of offense or the maximum penalty); Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (concession before the immigration court does not obviate the right to challenge or obtain a ruling on whether a conviction constitutes an aggravated felony when it is a pure matter of law on which the appellate court can rule); United States ex rel. Mylius v. Uhl, 210 Fed. 860 (2d Cir. 1914); United States ex rel. Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (firearms offense); Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980); Matter of Baker, 15 I. & N. Dec. 50 (BIA 1974); Matter of S, 5 I. & N. Dec. 576 (BIA 1953) (respondent’s testimony in deportation proceedings does cast some light on the nature of the acts he is alleged to have committed, but the immigration court is precluded from going outside the record of conviction to consider such testimony).

[183] Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003).

[184] Ibid., citing Taylor, at 670.

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

[186] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Immigration Judge improperly  considered the testimony of the victim as to the nature of her relationship with the noncitizen in concluding that the crime of violence constituted a “crime of domestic violence” for deportation purposes).

[187] United States v. Nobriga, 408 F.3d 1178, 1182 n.4 (9th Cir. May 20, 2005) (per curiam) (“Such a post hoc admission is not pertinent to Taylor’s modified categorical approach. The statement at issue did not come in the plea colloquy for the offense of conviction, which generally is judicially noticeable under Taylor and Shepard. See, e .g., United States v. Smith, 390 F.3d 661 (9th Cir. 2004), as amended, 405 F.3d 726 (9th Cir. Apr.27, 2005). Rather, Nobriga’s statement about the former offense was made in the district court in this case. Such a statement is not judicially noticeable under Taylor and Shepard.”).