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).

NATURE OF CONVICTION - STATE COURT DECISIONS ON ELEMENTS
As an example of the BIAs use of state court decisions in determining the immigration effect of a state criminal conviction, compare Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992) (Pennsylvania passing bad checks not a CMT) with Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992) (Georgia passing bad checks a CMT). Looking at the elements of two states statutes, as defined by case law, the BIA found the offense of passing a bad check to be a CMT in one case, while not a CMT in the other. Thanks to Jonathan Moore.

CATEGORICAL ANALYSIS - NO ELEMENT STATUTES
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (where a criminal statute contains no elements ["any assault other than assault in the 1st, 2nd, 3rd, degree is fourth degree assault"] the reviewing court looks to state caselaw to determine the elements for categorical analysis; where caselaw lays out three ways to commit the offense, as with RCW 9A.39.041, fourth degree assault, the statute will be considered divisible) , citing Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) ("in determining the categorical reach of a state crime, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.") (citation omitted).

First Circuit

NATURE OF OFFENSE - ELEMENTS - JUDICIAL DECISIONS
Ramirez v. Mukasey, 520 F.3d 47 (1st Cir. Mar. 14, 2008) (judicial decisions defining the elements of the offense of conviction are considered by immigration court in determining the nature of the offense of conviction).

NATURE OF CONVICTION - JUDICIAL DECISIONS
Lopes v. Keisler, 505 F.3d 58 (1st Cir. Oct. 26, 2007) (Rhode Island conviction for assault and battery, in violation of Gen.Laws 1956, 11-5-3, is an aggravated felony for immigration purposes, since the statue requires "use of force" as an element; although the statute does not define "assault," the Rhode Island Supreme Court has defined assault as an attempt to do a bodily harm to another person with "force or violence"; "because section 11-5-3 does not provide a definition of assault, the BIA appropriately looked to Rhode Island case law to determine how the state defines the crime.").

Second Circuit

CONVICTION - PROOF OF EXISTENCE OF CONVICTION - GOVERNMENT MAY PROVE EXISTENCE OF CONVICTION BY ADDITIONAL DOCUMENTS NOT ON STATUTORY LIST
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) ("In addition, we have held that the list of documents enumerated in 1229a(c)(3)(B) is non-exhaustive and thus does not prohibit the admission of other types of documents if they are sufficiently "probative" of the kind of conviction at issue."), citing Dulal-Whiteway v. U.S. Dep't of Homeland Sec., 501 F .3d 116, 132 (2d Cir. 2007) (holding that while a restitution order may "offer proof that a conviction exists," an IJ may not rely on it "to establish that the underlying facts of that conviction constitute a removable offense"); Francis v. Gonzales, 442 F.3d 131, 142-43 (2d Cir. March 27, 2006) (holding that while applicable regulations allow an IJ to consider a police "rap sheet" referring to a specific conviction, an IJ may not deem such a report conclusive proof of conviction of a removable offense as rap sheets "lack the necessary information to describe the full record of conviction and do not necessarily emanate from a neutral, reliable source"); see also Dickson v. Ashcroft, 346 F.3d 44, 53-55 (2d Cir. September 09, 2003) (holding that an IJ may not rely upon the "narrative statements of facts" section of an alien's pre-sentence report to determine whether the alien had been convicted of a removable offense).

Fourth Circuit

NATURE OF CONVICTION " STATUTORY INTERPRETATION " STATE COURT INTERPRETATIONS OF STATE STATUTES
United States v. Parral-Dominguez, ___ F.3d ___, 2015 WL 4479530 (4th Cir. Jul. 23, 2015) (immigration authorities are bound by interpretation of elements of state offense by states highest court); United States v. Aparicio"Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (To the extent that the statutory definition of the prior offense has been interpreted by the state's highest court, that interpretation constrains our analysis of the elements of state law.).

Ninth Circuit

NATURE OF CONVICTION - CATEGORICAL ANALYSIS - ELEMENTS OF OFFENSE - CONSIDERATION OF JUDICIAL DECISIONS DEFINING ELEMENTS
United States v. Narvaez-Gomez, 489 F.3d 970 (9th Cir. Jun. 6, 2007) (in determining elements of offense of conviction, under categorical analysis, the court must consider judicial decisions defining the elements of the offense: "The language of section 246 does not expressly include reckless conduct, but we also consider the interpretation of statutory language in judicial opinions to determine categorical reach. See Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir.2006).").