Safe Havens

 

(C)  Dismissed Counts.  In determining whether a conviction triggers deportation, charges other than the charge(s) of which the defendant was convicted are irrelevant.  The determination is made solely on the basis of the offense of which the defendant was convicted.[88]  “Conviction of a lesser included offense is acquittal of the higher offense. U.S. ex rel, Valenti v. Karnuth, 1 F.Supp. 370, 375 (M.D.N.Y.1932); Matter of VT, 2 I. & N. Dec. 213, 216-17 (BIA 1944); cf. Matter of W, 4 I. & N. Dec. 241 (BIA 1951).”[89]

 

The principle that an arrest or charge is not evidence of guilt derives from the presumption of innocence.  When the jury in a criminal case is informed of the presumption of innocence, it is told, in effect, “to judge an accused’s guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody.”[90]  A charge, standing alone, is proof of nothing; the defendant may be completely innocent, and is presumed to be innocent absent a conviction on the particular charge.

 

One court has held it an abuse of discretion, and arbitrary, to consider “facts” alleged in dismissed counts in determining the immigration consequences of a conviction.[91]

 

Moreover, both the immigration judge and the Board considered irrelevant factors. The immigration judge relied on an indictment count (assault with intent to kill) that had been dismissed, and the Board relied on a conviction (for simple assault) that was not alleged in the Service’s order to show cause or in any additional charge. The Frentescu standard focuses on the crime that the Service claims is particularly serious, and the standard does not call for consideration of conduct that is unrelated to that crime. We can find no authority for the proposition that dismissed counts or crimes not relied upon by the Service may be considered in determining whether a specific crime is a particularly serious one. Cf. 8 U.S.C. § § 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) (barring the Attorney General from granting asylum or withholding of deportation to an alien who has been “convicted” of a particularly serious crime); id. § 1229(a)(1) (requiring “written notice” specifying the “charges against the alien”); 8 C.F.R. § 1240.10(e) (allowing the Service to lodge additional charges “[a]t any time during the proceeding,” if they are “in writing” and served upon the alien).[92]

 

One court has rejected this approach, improperly concluding it could look at dismissed charges:

 

Petitioner launches a two-fold attack. He says the agency is precluded as a matter of law from relying on the documents and information it did and that in any event those documents and information do not establish “use,” but only “possession.”  The agency has said it will not look into the underlying facts of the particular crime, but will focus first on the statute of conviction. See Matter of Ajami, Interim Decision 3405, 1999 WL 487022 (BIA 1999); see also Matter of Short, 20 I. & N. Dec. 136, 1989 WL 331878 (BIA 1989). If the statute of conviction, as here, includes both crimes of moral turpitude and others, then the agency may look to the indictment, the charging papers, the conviction documents, and the like to see which type of crime was involved.  Ajami, Interim Decision 3405.

 

Here, the focus was on exactly those documents. The sentencing document shows petitioner pled guilty to “using” a false motor vehicle document. That document shows that there were related charges, continued without a finding, for illegally operating a motor vehicle without being duly licensed. From this, the IJ drew the quite sensible conclusion that petitioner had used a false license in connection with operating the car. The attempt at deceit is inherent in this act. There is no basis to fault this factual conclusion.

 

Petitioner’s other argument is that because he was never convicted of those of the charged crimes which were continued without a finding, and per force these non-convictions were not the basis of the deportation order, there was error in considering this information. There was no error. The push in the law toward categorical approaches to classifying crimes as either involving moral turpitude or not is largely based on the policy of not retrying prior criminal convictions in later deportation hearings. Cf. United States v. Damon, 127 F.3d 139, 145-46 (1997). No such interest is served by precluding consideration of basic facts stated on the official court records of the charging and conviction documents. The categorical approach does not require that blinders be worn.[93]

 

This decision is an aberration.  It flies in the face of decades of sensible BIA jurisprudence and opens the door to relitigation of the facts of the case in immigration court, or violates due process by precluding the respondent from contesting the facts alleged in dismissed charges, then unfairly using those facts against him as if they were somehow established as true.  It is black letter law that an accusation is proof of nothing.

 

It is hornbook law that indictments cannot be considered as evidence; this rap sheet account of her arrest for the very offenses for which she was on trial does not even rise to the level of an indictment. Nevertheless, this entire document became part of the evidence and was submitted to the jury for its consideration. In our opinion it was highly prejudicial and reversible error was committed by its introduction.[94] 

 

The defendant did not admit the truth of the facts alleged in the counts that were continued without a finding.  The prosecution did not prove them.  The court of appeals, in Montero-Ubri, ignored these basic rules.  However, these arguments were not raised in that case, so the First Circuit cannot be said to have rejected them.  No court should follow this decision, and the First Circuit should reexamine and reverse it.

 

            There are several older homicide cases, in which the statute of conviction did not distinguish between voluntary (CMT) and involuntary (non-CMT) manslaughter, and the court relied on the dismissed murder count for the proposition that the killing was voluntary.[95]  These cases did not consider or apply the rule that all reasonable doubts concerning the case must be construed in favor of the noncitizen, in deportation proceedings:  If the statute and judicial decisions defining the offense leave its nature ambiguous, all reasonable doubts must be construed in favor of the noncitizen.[96]  The immigrant must receive the benefit of all reasonable doubts, both of fact and law, in these cases, because of their status as immigrants and the drastic, penal consequences of deportation.  The court must narrowly construe deportation statutes in favor of the noncitizen.[97]  See § § 5.24, 5.25, supra.

[88] Matter of B, 7 I. & N. Dec. 342 (BIA 1956).

[89] Matter of Baker, 15 I. & N. Dec. 50, 52 (BIA 1974).

[90] Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 1871 (1979).

[91] Yousefi v. INS, 260 F.3d 318, 329-330 (4th Cir. 2001) (decision that assault with dangerous weapon constituted “particularly serious crime” reversed, as arbitrary, on ground immigration court considered an irrelevant dismissed count in reaching decision).

[92] Yousefi v. INS, 260 F.3d 318, 329-330 (4th Cir. 2001).

[93] Montero-Ubri v. INS, 229 F.3d 319, 320-321 (1st Cir. 2000).  See also Matter of Thomas, 21 I. & N. Dec. 20, 23-24 (BIA 1995) (citing several circuits allowing consideration of arrest that did not culminate in convictions for purposes of determining whether discretionary relief is warranted).

[94] United States v. Cox, 536 F.2d 65, 72 (5th Cir. 1976).

[95] “In this case, however, the indictment indicated voluntariness by the allegation that the respondent “deliberately, wilfully, with malice aforethought, and with premeditation did kill . . . .”  See Matter of S, 2 I. & N. Dec. 559 (C.O. 1946; BIA 1946; AG 1947), a case in which an Ohio manslaughter statute was  considered.” Matter of Pataki, 15 I. & N. Dec. 324, 325 (BIA 1975); Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975) (respondent was charged with the crime of murder in the first degree under 29 Ohio Revised Code Annotated § 2901.01 (1954), but pleaded guilty to a charge of Manslaughter First Degree, 29 Ohio Revised Code Annotated § 2901.06 (1954), which applies to both voluntary and involuntary manslaughter; the BIA considered the original charge of murder, a voluntary crime, in concluding the conviction record leads to the conclusion that the respondent’s conviction was for voluntary manslaughter, a crime involving moral turpitude); Matter of HR, 4 I. & N. Dec. 742 (BIA 1952).

[96] Matter of H, 7 I. & N. Dec. 616 (BIA 1957).  See also Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957).

[97] Rosenberg v. Fleuti, 374 U.S. 449, 459 (1963); Bonetti v. Rogers, 356 U.S. 691, 699 (1958); Barber v. Gonzalez, 347 U.S. 637, 642-643 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975); Matter of Chartier, 16 I. & N. Dec. 284, 287 (BIA 1977).