Criminal Defense of Immigrants

Beyond examining the language of the statute itself, case law must also be examined to determine whether the courts have grafted additional elements onto the crime, or have interpreted the statutory criteria in a meaningful way.[52]  Judicial decisions may interpret a criminal statute to require an additional element, that may not be apparent in the language of the statute itself, in order to sustain a conviction.

                For example, even if the statute does not require that the misstatement be material, a perjury conviction will be found to be a crime of moral turpitude if the local judicial interpretation of the statute declares that materiality of the false statement is a necessary element of the crime.[53]  The Georgia bad check statute prohibits the issuance of a check “knowing that it will not be honored,” but does not require a showing of any level of criminal intent.  However, Georgia case law has found that an intent to defraud is an essential element of the crime.  Therefore, the BIA found that a conviction under that statute was a crime of moral turpitude.[54]  The Ninth Circuit found a California conviction for welfare fraud[55] qualified as an aggravated felony fraud offense,[56] since case law had interpreted that statute as invariably requiring an element of intent to defraud, even though the statute itself states that a conviction could be based upon a “false statement or representation or by impersonation or other fraudulent device.”[57]

In making a determination of removability, the immigration courts are bound by the a state court’s interpretation of that states’ statutes.[58]  For other ways in which state law affects this analysis, see § 16.35, infra.

[52] See, e.g., Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) (looking to California state law to determine meaning of “force or violence” in California Penal Code § 242); Burr v. INS, 350 F.2d 87 (9th Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 905 (1966) (court considered both the specific language of the California Penal Code section under which the noncitizen had been convicted, and the cases interpreting the statute, and determined that since an intent to defraud was an essential element of the crime of issuing an insufficient funds check, the conviction was a CMT); Matter of H, 7 I. & N. Dec. 359 (BIA 1956).

[53] Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993); Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992); Matter of H, 1 I. & N. Dec. 669 (BIA 1943) (Michigan).

[54] Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992) (Georgia conviction of writing bad checks).

[55] California Welf. & Inst. Code § 10980(c)(2).

[56] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[57] Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004).

[58] United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006), citing Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor categorical approach for defining a crime of violence).