(A) Elements v. Facts.  The courts are not only limited to the documents that make up the record of conviction, but are also limited to 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 should not consider any facts contained in those documents that do not speak to that question.[63]  An element is something that must be shown to support a conviction under the statute.  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 cannot be considered in determining the nature of the conviction.[64]  

 

In United States v. Calderon-Pena,[65] the Fifth Circuit found that the Texas child endangerment statute was not a crime of violence because the elements of the statute did not require the “use of force.”  The court rejected the government’s argument that “the elements expand ‘beyond the statute’ to include factual material about the method of committing the offense that, when alleged in charging papers, must then be proven at trial.  That is, the government contends, if the statutory language itself fails to require force, we would turn to the manner of commission in the particular case (as charged) to see if that involved force.”[66]  In rejecting this argument, the court pointed out that “the manner and means, even when required to be charged in the indictment, does not constitute an element of the offense, but rather satisfies the due process concerns relating to providing defendants with sufficient notice of the crime for which they have been charged.”[67]

 

In Tseung Chu v Cornell,[68] a noncitizen had pleaded nolo contendere to income tax evasion.  The indictment stated that the noncitizen had “wilfully, knowingly, unlawfully and feloniously” attempted to evade his taxes by making false and fraudulent income tax returns under oath.  The court rejected an argument that only the judgment, which had been amended to remove the words “make false and fraudulent,” could be considered.  The court agreed that it is the specific charge of which the noncitizen is found guilty that determines deportability, and noted that whether a crime involves moral turpitude does not depend upon unnecessary adjectives added to the indictment by a “zealous and overcareful prosecutor.”  The court found, however, that in this case the intent to defraud the government was an essential element prerequisite to conviction under the statute, and thus the “false and fraudulent” language in the indictment could not be classified as “unnecessary.”  While the court in this case properly drew a distinction between necessary and superfluous information in the indictment, the court arguably failed to make a distinction between the offense of filing “fraudulent” tax returns, and filing merely “false” tax returns.[69]

 

There are a number of cases where the courts have improperly looked to facts in the record to determine removability, even though those facts were not necessary to sustain a conviction.  Unfortunately, the courts often have difficulty distinguishing between information in the record that indicates the elements necessary to convict, and the facts and circumstances of the offense.

 

In Vue v. INS,[70] for example, the Eighth Circuit found that a noncitizen had properly been charged in immigration proceedings with deportability on account of conviction of a firearms offense on the basis of a conviction for aggravated robbery with a deadly weapon.  The charging documents indicated that the deadly weapon involved in the robbery was a firearm.  The court rejected the noncitizen’s argument that the use of the firearm was a fact of the case, rather than an element to be proven.  The court rejected the argument that because the convicting court only needed to determine that the robbery involved a “deadly weapon,” and not specifically a firearm, that the existence of a firearm was a fact indicated in the indictment that could not be considered by the immigration authorities to establish removal for a firearms conviction.[71]

[63] See United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (“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.”) (per curiam), following United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004); 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).

[64] United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc).

[65] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc) (court can look to charging papers for the limited purpose of determining which set of a series of disjunctive elements in the statute the defendant’s conviction satisfied).

[66] Id., at 257.

[67] Id., at 258.

[68] Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.), cert. den., 355 U.S. 892, 78 S.Ct. 265 (1957).

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

[70] Vue v. INS, 92 F.3d 696, 700 (8th Cir. 1996).

[71] But see Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) (Washington statute for assault in the third degree did not constitute a firearms conviction since, regardless of the underlying facts, the assault statute did not require, as an element, the use of a firearm).

Seventh Circuit

SEXUAL ABUSE OF A MINOR - AGE OF THE VICTIM NEED NOT BE AN ELEMENT OF A SEX OFFENSE TO TRIGGER AGGRAVATED FELONY IN SEVENTH CIRCUIT RECORD OF CONVICTION - FACT OF VICTIMS AGE IN CRIMINAL COMPLAINT, ALTHOUGH NOT REQUIRED TO CONVICT, IS SUFFICIENT TO PROVE SEXUAL ABUSE OF A MINOR
Gattem v. Gonzalez, __ F.3d __, 2005 WL 1422373 (7th Cir. June 20, 2005) (misdemeanor solicitation to engage in a sexual act, in violation of Illinois law, 720 ILCS 5/11-14.1(a), is an aggravated felony, sexual abuse of a minor, offense for immigration purposes where the criminal complaint [and no other document] shows that the victim was under the age of 18)

Ninth Circuit

CONVICTION - RECORD OF CONVICTION - FACTUAL BASIS FOR PLEA - DEFENDANT'S MOTION
United States v. Hernandez-Hernandez, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (stipulated factual basis taken from defendant's California Penal Code 995 motion could be used by federal court to find that false imprisonment conviction involved violence; reliance on stipulated facts does not violate Taylor v. United States, 495 U.S. 575, 601-02 (1990) (sentencing court may not inquire into facts underlying prior conviction) because the stipulation was tantamount to a plea agreement, which may be used to establish facts).