Aggravated Felonies

 

The courts are not only limited to the documents that make up the record of conviction, but are also limited in the type of information that can be gleaned from those documents.  While the record of conviction can be considered to determine the set of elements of which the noncitizen was found guilty, the courts generally should not consider any facts contained in those documents that do not speak to that question.[188]  An element is something that must have been shown to support the conviction.  If the conviction can be sustained without proof of a given fact contained within the record of conviction, then that fact is superfluous, and not an essential element of the offense, and should not be considered in determining the nature of the conviction.[189]  

 

For example, archaic boilerplate will not be considered as becoming part of the nature of the conviction:

 

The INS also argues that the indictment contains the term “with force and arms,” necessarily referring to non-custodial provisions of the statute. This use of archaic boilerplate, unnecessarily included in many Louisiana indictment forms, regardless of whether the crime involves a use of force or arms, is virtually irrelevant to whether the charge was brought under any particular section of the simple kidnapping statute.[190]

 

Thus, surplusage in the charge will not be considered as part of the record of conviction.  Surplusage also includes allegations that go beyond the elements of the crime as defined by statute.[191]

 

            Where a charge includes several different offenses, joined by the conjunctive “and,” and the defendant is found guilty of that charge, s/he is not considered convicted of each of the different offenses contained within the divisible statute and within the divisible charge.  The term “and” is surplusage, since only one offense or another within the divisible statute and charge is required for conviction of the offense.  The Ninth Circuit has held that surplusage such as this does not form part of the record of conviction for purposes of determining the nature of the offense of conviction.[192]  The BIA and other circuits agree.  Allegations in the charge of conviction that are not essential elements of the offense are regarded as “surplusage,” and not as part of the nature of the offense of conviction.[193]

 

            A conviction resulting from a jury trial is subject to a similar analysis:

 

Legally, the count on which respondent was indicted creates only one offense. The offense could have been committed by any one of the nine acts set forth in the count. It was necessary to find only the existence of one act to obtain a conviction. The jury rendered a general verdict of guilty. We cannot go behind the record to determine what specific issues were presented to the jury and what specific act or acts they found to exist (United States ex rel. Teper v. Miller, supra). Since the verdict was a general one and did not specify the act or acts on which it rested, it cannot be determined that respondent was not convicted for the acts which do not relate to compelling (Stromberg v. California, 283 U.S. 359, 367-370, 75 L. Ed. 1117; Terminiello v. Chicago, 337 U.S. 115, 93 L. Ed. 1131). The finding that respondent was guilty of the “offenses” on count one, was of course surplusage, for there is only one offense. (Even if this finding could be given weight, it is meaningless for the purposes of this discussion, for it may have referred to any two or more of the six acts set forth which do not involve the intent “to compel.”) Compulsion is not a material element of the crime (cases cited infra). The burden of establishing that conviction was for a particular act is upon the Government. On this record it cannot be found that the transportation was for “compelling” the woman to engage in unlawful sexual intercourse. Because of these facts, we are not justified in drawing the inference most unfavorable to the alien. We must in fact draw that most favorable to him. We must assume that he was convicted for transportation for the purpose of inducing or enticing the commission of the act.[194]

 

Thus, where a defendant is found guilty in a jury trial of violating a divisible statute, i.e., one that contains more than one distinct offense or set of elements, on the basis of a charge that also contains more than one offense, s/he is not considered to have been convicted of all of the different offenses within the statute and charge where conviction of only one would have been sufficient.  Under those circumstances, s/he is considered convicted only of the single offense with the minimum immigration consequences, since the conjunctive language in the charge or instructions is considered boilerplate or surplusage not essential to conviction, and is therefore ignored.

 

[188] See United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (“Even accepting the government’s proposition that the court may look at the indictment pursuant to the exception, we cannot use the fact that the offense involved the use of force to conclude that force is an element of the statute. Thus, given the plain meaning of the statute and the purported disjunctive elements, the use, attempted use, or threatened use of physical force is simply not an element of the Texas retaliation statute.”), following United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc); Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947) (the common-law crime of escape did not constitute a crime involving moral turpitude, since it was committed by a prisoner when he voluntarily departed from lawful custody without breach of prison, since the offense involved no element of force or fraud, even though the indictment alleged that the offender did break prison and escape “with force and arms.”).  Cf. Rusz v. Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004) (“In Corona-Sanchez, the defendant ‘actually received a two-year sentence for [recidivist shoplifting] due to the application of California Penal Code § 666.’  Because the categorical approach required us to separate the recidivist enhancement, the Corona-Sanchez defendant’s actual two-year sentence was of no moment.  Thus, we concluded that ‘even under the § § 484/488/666 scheme ... the maximum possible sentence for [petty theft with a prior qualifying offense] ... is six months.’”) (internal citations omitted).

[189] United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc); Matter of Lethbridge, 11 I. & N. Dec. 444, 445 (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude: “Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. § 474 and would therefore appear to be surplusage”); Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).

[190] Hamdan v. INS, 98 F.3d 183, 189 (5th Cir. 1996).

[191] Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 n.4 (BIA 1992) (where no element of the crime of conviction related to the use of a weapon, the statement in the criminal information that the petitioner had used a firearm was “surplusage”); Vue v. INS, 92 F.3d 696, 700-701 (8th Cir. 1996).

[192] Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962).

[193] Matter of Lethbridge, 11 I. & N. Dec. 444, 445, (BIA 1965) (conviction under that portion of 18 U.S.C. § 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude: “Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. § 474 and would therefore appear to be surplusage”); Matter of B, 6 I. & N. Dec. 98 (BIA 1954) (conspiracy to violate New York Banking Law § § 340, 357 is not a CMT, since those sections are merely regulatory enactment; statement in the conspiracy count relating to intimidation and threats was immaterial since it was surplusage and not necessary for conspiracy conviction).

[194] Matter of R, 6 I. & N. Dec. 444, 450-451 (BIA 1954).