In determining whether a conviction fits within the definition of an immigration category, such as crimes of moral turpitude or crimes of violence, the Board of Immigration Appeals (BIA) will follow the federal courts and make a “categorical analysis,” i.e., it will look to the statutory definition of the offense and not at the “underlying circumstances” (or the facts of what the person actually did).[56]  Where the criminal statute of conviction is “divisible,” i.e., it contains some parts that have adverse immigration consequences and some parts that do not, the immigration courts will look to the “record of conviction” to determine under which portion of a divisible statute the noncitizen was in fact convicted.[57]  If the record of conviction does not demonstrate that the portion of the statute of which the noncitizen was convicted necessarily involved elements that always fit the definition of the immigration category (i.e., crime of violence), the conviction will not be considered as triggering the immigration consequences.

 

The record of conviction consists of the charging papers (indictment, complaint, etc.), plea or verdict, and sentence.[58]  Thus, the criminal sentencing hearing and the formal judgment can be part of the “record of conviction” that is considered to determine whether the particular conviction meets the definition of the immigration category, and thus triggers an adverse consequence such as deportability.  In such a case, counsel should attempt to make sure the clerk’s minutes of the sentence do not contain any evidence that would indicate the offense falls within the definition.

 

For example, if the defendant is sentenced under a sentence enhancement penalizing great loss to the victim, such a court finding as part of the judgment might be considered by the immigration judge to establish that the amount of the loss to the victim exceeded $10,000, and that the fraud conviction therefore constitutes an aggravated felony conviction.[59]  Similarly, if a $50,000 restitution order is entered as part of the judgment or sentence, that may satisfy this requirement as well.

 

In a circumstance involving loss, counsel should avoid creation of any record of conviction that indicates that the loss attributable to the particular count of conviction exceeded $10,000, and also, if possible, that the total loss from the entire scheme exceeded $10,000.  One way of doing so might be for the defendant to sign a civil confession of judgment that s/he owes the victim the restitution amount, but to leave restitution entirely out of the criminal sentencing proceeding.  Another way might be for the defendant to repay the loss in its entirety before sentencing, so that no restitution at all need be ordered as part of the sentence or judgment.  Another way might be to limit the formal restitution ordered by the court to the amount of loss (under $10,000) attributable only to the particular count to which the defendant entered a plea.

 

Similar concerns arise when the identity, relationship or age of the victim may appear in the record of conviction via the sentencing hearing or judgment of conviction so as to establish deportability on the basis of a domestic violence conviction, or a conviction of an offense involving sexual abuse of a minor as an aggravated felony.

 

[56] Matter of Palacios, 22 I. & N. Dec. 434 (BIA 1998); Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994); Matter of Magallanes-Garcia, 22 I. N. Dec. 1 (BIA 1998).

[57] See, e.g, Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999) (BIA reviews record of conviction to determine under what section of a divisible statute respondent was convicted; found that that subsection was not a “crime of violence” aggravated felony). 

[58] Ibid.

[59] Fraud, deceit, and tax evasion are aggravated felonies if the “loss to the victim” or revenue loss to the government is $10,000.  Money laundering and monetary transactions with illegally obtained funds are aggravated felonies if the “amount of the funds” laundered exceeds $10,000.  INA § 101(a)(43)(M), (D), 8 U.S.C. § 1101(a)(43)(M), (D).  The IIRAIRA decreased the statutory amount from $200,000 to $10,000.

POST CON RELIEF -- UNCONSTITUTIONAL PRIOR CONVICTION - MAY NOT BE USED TO ENHANCE SENTENCE
A prior conviction resulting from an uncounseled guilty plea for which there was an invalid waiver of counsel may not be used to enhance a later offense where the prior conviction resulted in incarceration. See Baldasar v. Illinois, 446 U.S. 222 (1980); Nichols v. United States, 511 U.S. 738 (1994).