Criminal Defense of Immigrants


§ 16.5 1. Statutory Elements

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The first step in determining whether a conviction will trigger a criminal ground of removal is to determine from the record of conviction what law, or portion of a law, was violated.[40]  More than one statute may be involved, as when one statute defines a term used in another.[41]


Counsel should also be sure that they have the correct version of a statute, as statutes are often amended.  The basic rule is that the statute that was in effect at the time the offense occurred controls.[42] 

Once the statute of conviction has been identified, counsel must determine the essential elements necessary to convict.  Beyond looking to the statute itself, jury instructions published by the convicting jurisdiction are extremely helpful in determining the exact elements required to sustain a finding of guilt under the statute.  Cases examining the statute, often listed in the annotations to the statute, should also be consulted to determine whether the courts have altered the elements in a meaningful way.  See § 16.6, infra.  The label given to the offense by the state (i.e., what the offense is called by the state) is irrelevant.  See § 16.35, infra.


These essential elements, i.e., those elements which must be established in order to sustain a conviction under the statute, determine whether the crime falls within a ground of removal.[43]  The immigration authorities are generally not allowed to examine any fact that is not absolutely necessary to convict.[44]  See § 16.18, infra.


In Tokatly v. Ashcroft,[45] for example, the Ninth Circuit held that a noncitizen convicted in Oregon of Burglary in the First Degree and Kidnapping in the First Degree could not be found deportable as a noncitizen convicted of a crime of domestic violence[46] because neither the burglary, nor the kidnapping statute, required the jury to find, or the defendant to admit, a domestic relationship with the victim in order to sustain a conviction.  Even though the victim herself had testified before the immigration judge that she had been involved in a domestic relationship with Tokatly, the court found that Tokatly had not been convicted of a crime of domestic violence, and therefore could not be found deportable under that ground.[47] 


In Singh v. Ashcroft,[48] the Third Circuit found that a conviction under Delaware law of unlawful sexual contact was not an aggravated felony sexual abuse of a minor conviction because the elements of the statute did not require that the victim be a minor.[49]  The court properly refused to consider that the victim was in fact a minor, as was reflected in the record of conviction.


In Shepard v. United States,[50] the Supreme Court drew a distinction between the facts expressed in the court record (representing the conduct), and the conviction (i.e., the result of the verdict).  The court rejected the Government’s suggestion to broaden what the court could consider to prove the nature of a conviction.  The Government wanted to prove that the jury trial had returned a verdict convicting the defendant of burglary of a building by reference to the defendant’s testimony during trial that he had broken into a building (as opposed to an automobile) in committing the burglary.  The court noted that just because some evidence of fact is presented to the jury does not mean that the verdict was indeed predicated upon that fact.


                Some courts read portions of the aggravated felony definition (as well as the domestic violence ground of deportation) as expressly inviting an examination of specific facts beyond the essential elements necessary to convict.  The two most common aggravated felony examples are the age of the victim, for purposes of the sexual abuse of a minor aggravated felony, and the monetary loss suffered by the victim of a fraud offense.[51]  See § § 16.7, infra, 22.21-22.22, infra (domestic violence ground).

[40] Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979); Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997).

[41] In some cases one statute may be argue to be enhancing the other, in which case it can be argued that the enhancement should not be used to determine the nature of the offense.  See § 16.33(I), infra.

[42] This is dictated by the Ex Post Facto clause of the United States Constitution, which prohibits changing the elements of the offense or the punishment after the offense has been committed.  See Collins v. Youngblood, 497 U.S. 37 (1990).

[43] See, e.g., Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1262 (Mar. 7, 2005).

[44] Singh v. Ashcroft, 383 F.3d 144, 153 (distinguishing between acts sufficient to convict, and acts necessary to convict); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957) (the facts leading to the noncitizen’s conviction were not open to judicial evaluation, and ascertainment of the inherent nature of the offense for which the defendant was convicted was the extent of judicial inquiry permitted).

[45] Tokatly v. Aschcroft, 371 F.3d 613 (9th Cir. June 10, 2004).

[46] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[47] See also Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (California conviction of simple battery, in violation of Penal Code § 242, did not qualify as deportable domestic violence conviction, under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), where record of conviction did not establish necessary domestic relationship), opinion amended on denial of rehearing, 465 F.3d 386 (9th Cir. Oct. 4, 2006).

[48] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004).

[49] Id. at 153 (“Since a finding of the age of the victim is not required for conviction, § 767 does not appear to be an aggravated felony [sexual abuse of a minor offense].”).

[50] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1261 (Mar. 7, 2005).

[51] A third instance, not involving an aggravated felony, is whether the domestic relationship necessary to a domestic violence ground of deportation must be an element of the offense.  INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).



Second Circuit

Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) ("[T]he INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally convicted of in a court of law. Thus "[f]or nearly a century," the BIA recently observed, "the Federal circuit courts of appeals have held that where a ground of deportability is premised on the existence of a conviction for a particular type of crime, the focus of the immigration authorities must be on the crime of which the alien was convicted, to the exclusion of any other criminal or morally reprehensible acts he may have committed." In re Velazquez-Herrera, 24 I. & N. Dec. 503, 513 (B.I.A.2008).").

Fifth Circuit

United States v. Miranda-Ortegon, 670 F.3d 661, 664, n.9, 11 (5th Cir. Feb. 10, 2012) (court of appeal used Oklahoma criminal jury instructions to ascertain elements of state definition of offense, for purposes of determining the nature of the conviction for removal purposes).
Hernandez v. Holder, __ F.3d __ (5th Cir. Dec. 30, 2009) (Texas conviction for violation of Texas Penal Code section 46.04(a), possession of a firearm by a felon, is an aggravated felony firearms offense; it is not necessary for a state offense to contain a federal jurisdictional element to be an offense "described in" 18 U.S.C. section 922(g)(1), and qualify as an aggravated felony under INA 101(a)(43)(E)), following Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002).
United States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (guidelines commentary is binding as though it were in the guidelines themselves).

Ninth Circuit

Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. Dec. 14, 2009) ("the availability of a mistake-of-age defense is not equivalent to the requirement that the government prove that the defendant had the requisite state of mind."), citing United States v. Gomez-Mendez, 486 F.3d 599, 603-604 (9th Cir. 2007) (refusing to treat an affirmative defense as the functional equivalent to an element of the offense).

Tenth Circuit

United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. Dec. 29, 2009) ("The definition and scope of the enumerated offenses are questions of federal law. The label that a state attaches to a crime under its laws does not determine whether it is a Guidelines enumerated offense."); see United States v. Servin-Acosta, 534 F.3d 1362, 1366 (10th Cir.2008) ("[W]e have rejected the notion that whether a state conviction was for an enumerated but undefined crime depends upon how the crime is characterized under state law. " (quoting United States v. Vasquez-Flores, 265 F.3d 1122, 1124 (10th Cir.2001)); Juarez-Galvan, 572 F.3d 1156, 1159 (10th Cir. July 20, 2009) (noting that California's "designation" of the offenses at issue is "not dispositive").