Criminal Defense of Immigrants

 

(A)  Lack of Authority to Reject Categorical Analysis.               The United States Supreme Court has consistently held that the Taylor categorical analysis applies to the determination of whether the elements of the offense of conviction fall within a conviction-based statutory definition that triggers immigration or federal sentence consequences.  The BIA has, until recently, consistently applied this analysis to this question in the immigration context.  The holdings of the circuits are likewise consistent on this point, where these issues have been raised.  Historically, there has been no judicial authority for straying outside the elements of the statute of conviction (improperly to consider the facts of the case, even if they are included within the record of conviction), when the question is comparing a conviction to a conviction-based ground of deportation.  Counsel must be alert to enforce these limitations, to prevent improper deportations based on failure or refusal to follow the Taylor analysis.  A decision does not stand for a proposition that was neither raised nor decided in the case.[63]

               

Five circuit court decisions, and a recent decision from the BIA, however, have held or suggested the court in some instances may use facts within the record of conviction, even though they do not constitute elements of the offense, to bring the offense of conviction within a ground of deportability.  Some courts have limited this extention to certain aggravated felony offenses that can be said to require proof “extra elements” beyond those required to convict in order to sustain deportability; other circuits seem poised to abandon the categorical analysis completely. 

 

                First Circuit.  In Conteh v. Gonzales,[64] the First Circuit chose to depart from the Ninth, Fifth and other circuits by defining “modified categorical” analysis[65] as an examination of the record of conviction beyond the second step of the Taylor/Shepard categorical analysis.[66]  The court found that when a court engages in a “modified categorical analysis,” rather than being limited to looking to the record of conviction to determine the elements of the crime to which the noncitizen admitted or was found guilty of committing, the Immigration Judge or reviewing court may look to any facts in the record of conviction to determine nature of the crime, including those facts to which the noncitizen did not admit or was not found guilty.[67]  The test applied by the First Circuit first asks whether the crime of conviction is at least as broad as the ground of removal (applying the two-step Taylor analysis), and then looks to any facts reflected in the record of conviction to determine whether the actual offense committed falls within the ground of removal.[68]

 

In the context of determining whether a conspiracy to commit a fraud offense was an aggravated felony, the court found that it could look beyond the findings of the jury to the loss amounts reflected in the indictment (even though these had not been found true by the jury) and a finding of loss made by the court for sentencing purposes.[69]

 

                The court specifically rejected the Ninth Circuit’s use of the term “modified categorical approach” as a mere description of the second step of the Taylor categorical analysis, finding that the Ninth Circuit had “drained much of the specialized meaning from the term . . . giving lip service (and no more) to the word ‘modified’ in the locution ‘modified categorical approach.’”[70]  The court failed to notice that the Ninth Circuit created the term specifically for the purposes of distinguishing the second step of the Taylor analysis, which was added by the United Supreme Court to the strict categorical analysis first applied by the Ninth Circuit in the context of the Armed Career Criminal Act.[71]  The court also failed to note that the United States Supreme Court had itself applied the Taylor analysis, and no more, in the immigration context.[72]  Rather, the court cited two BIA decisions as appearing to use the approach adopted here by the first circuit.[73]

 

                The Conteh approach goes far beyond the Third Circuit’s “extra element” analysis, see below, in that it theoretically applies to all conviction-based grounds of removal.  This departure from Taylor has yet to be applied in any other First Circuit cases, and should be resisted.

 

                Second Circuit.  In Sutherland v. Reno,[74] the Second Circuit found that a Massachusetts conviction of sexual assault and battery of a minor triggered the domestic violence deportation ground because the victim was the noncitizen’s 19-year-old stepdaughter and a household member, who was therefore a protected person under Massachusetts family violence law.  The petitioner did not object that the facts concerning the stepdaughter’s status were not shown by the record of conviction.  In fact, the decision does not discuss the source of those facts, or the lawfulness of basing a deportability decision upon them.  Sutherland does not in fact hold that it is proper to use a fact of the underlying offense, as opposed to restricting consideration to the elements of the offense of conviction, in determining whether a state conviction falls within the ground of removal.  As to these issues, Sutherland is therefore nothing more than dictum.

 

                Third Circuit.  In Singh v. Ashcroft,[75] the Third Circuit held that under the formal categorical analysis of Taylor v. United States, a conviction of unlawful sexual contact was not an aggravated felony of sexual abuse of a minor offense.  The court reasoned that “Singh’s statute of conviction is not phrased in the disjunctive in a relevant way [because] the statute is silent on the critical matter of the age of the victim.”[76]  Because the statute of conviction was not disjunctive in the sense that it included one or more offenses that had age of the victim as an element, and other(s) that did not, the statute did not invite the court to engage in divisible statute analysis.  The court then considered whether the aggravated felony category, sexual abuse of a minor, invited the court to look beyond the elements of the statute, and concluded that it did not:

 

Thus we must ask whether 8 U.S.C. §   1101(a)(43)(A) (and specifically “sexual abuse of a minor”) invites inquiry-that is, whether it is more like the amount-of-loss provision of 8 U.S.C. §   1101(a)(43)(M)(i), or more like provisions for “burglary,” 8 U.S.C. § 1101(a)(43)(G), or “crime of violence,” 8 U.S.C. §   1101(a)(43)(F).

 

            We think it clear that “sexual abuse of a minor” belongs in the latter category.  First, it is listed in the same subsection as “murder” and “rape,” two terms that share the common law pedigree of “burglary,” which was examined in Taylor itself.  Applying the maxim noscitur a sociis,[77] we would place “sexual abuse of a minor” in a similar mold.  Second, nothing in the phrase “sexual abuse of a minor” signals that a factual investigation is called for.  Congress could have enacted, for example, the language “any sex offense, where the victim of such offense was a minor”; such language, parallel to provisions like 8 U.S.C. § 1101(a)(43)(G) & (S), might direct our inquiry into the facts of the crime rather than its definition.  Third, in an area that so routinely implicates state laws, Congress is presumed to legislate against the backdrop of existing state statutes.  The widespread existence of state statutes specifically criminalizing sexual abuse of a minor, see, e.g., Ala.Code § 13A-6-67 (“Sexual abuse in the second degree”); Cal.Penal Code § 288.5 (“Continuous sexual abuse of a child”); 11 Del. C. § 778 (“Continuous sexual abuse of a child”); 18 Pa. Cons.Stat. §   6312 (“Sexual abuse of children”), supports the conclusion that Congress intended Taylor’ s formal categorical approach to be applied in this case.[78]

 

The essence of the holding of Singh, therefore, was that the strict categorical analysis required by Taylor applied to the question whether the Delaware conviction of unlawful sexual contact in the third degree constituted a sexual abuse of a minor aggravated felony, because (a) the Delaware statute had no element of age, and (b) the aggravated felony sexual abuse of a minor category did not “invite” the court to look to any extra elements beyond those required to convict.

 

                In Alaka v. Attorney General,[79] however, the court expressly found that the “loss to the victim” requirement of INA § 101(a)(43)(M)(i)[80] was an extra element that “invites further inquiry [beyond the strict categorical analysis] because it specifies a mandatory loss amount.”[81]

 

                Fifth Circuit.  In James v. Gonzalez,[82] the Fifth Circuit adopted the Third Circuit’s “extra-element” analysis[83] as applied to the aggravated felony fraud category and determination of the loss to the victim.  Therefore, the court held that it could beyond the loss amount reflected in the charge, to the loss as determined by the sentencing judge, at least where the count of conviction described an overall scheme to defraud.[84]

                Seventh Circuit.  In Gattem v. Gonzales,[85] the Seventh Circuit held an Illinois conviction for solicitation of a minor to commit a sexual act qualified as a conviction for sexual abuse of a minor, and thus as an aggravated felony rendering a foreign national ineligible for cancellation of removal.  The holding focused on whether the conduct of soliciting a minor under the statute of conviction fell within the aggravated felony definition of sexual abuse of a minor.  This decision did not result in a holding that it was proper to use a non-element fact from the record of conviction, because the respondent did not raise these issues or contest proof of the age of the victim of the offense: “Gattem acknowledged the conviction and admitted that the individual from whom he had solicited a sexual act was a juvenile under the age of 17.”[86]

 

                In Sharashidze v. Gonzalez,[87] the noncitizen had been convicted of indecent solicitation of a sexual act, which does not require any proof of age.  The criminal complaint charged that the noncitizen had asked a mother to have sexual contact with the mother’s child.  Citing Gattem, the court found that the indecent solicitation statute was divisible because the offense could in fact involve either an adult or a minor, and then looked to the record of conviction to determine that the offense involved a child because the intended victim was a child, even though it was the mother who received the solicitation.[88]  The age of the victim, however, was not an element of the offense.

 

Although counsel can argue that the issue in Sharashidze was only whether solicitation of a child’s mother was equivalent to a sexual offense involving the child him/herself, it appears clear that (at least in the case of sex offenses) the Seventh Circuit does not limit its categorical analysis or divisible statute analysis to the elements of the statute of conviction, but looks beyond the elements to facts in the record of conviction to determine both whether a statute is divisible and whether the offense qualifies as an aggravated felony.  Sharashidze made no effort to couch its opinion in an “extra element” analysis, and so the Seventh Circuit’s treatment of the categorical analysis appears to go beyond the “extra element” analysis adopted by the Third and Fifth circuits.

 

Board of Immigration Appeals.  In Matter of Gertsenshteyn,[89] the BIA held that:

 

[W]here Congress has defined an aggravated felony to include a component (e.g., ‘commercial advantage’) that is neither an element of the underlying offense nor a basis for a sentence enhancement, and thus would not normally be alleged in a criminal charging instrument, it would defeat the statute to require the application of the categorical (or modified categorical) approach, in which only the statute itself and the limited material constituting the record of conviction may be consulted.[90]

 

The BIA admitted that if the BIA’s prior law on categorical analysis had been followed, it would have been impossible to determine whether Gertsenshteyn’s offense qualified as an aggravated felony.[91]  The court then looked to the three statutes[92] listed in the aggravated felony prostitution definition, finding that none of those statutes required proof that the offense was committed “for commercial advantage,” in order to sustain a conviction.  The court therefore determined that Congress must have intended the immigration authorities to look beyond the mere statutory elements of those statutes to determine whether the offense was done for “commercial advantage,” since to require otherwise would “have effectively rendered section 101(a)(43)(K)(ii) a nullity . . . .”[93]

 

While this analysis is largely the same as that now applied in the Third and Fifth Circuits, the BIA went beyond merely adopting an “extra element” analysis by concluding that the question of whether a violation of 18 U.S.C. § 2422 was committed for commercial advantage, as required to find sustain deportability as an aggravated felony prostitution offense,[94] “may be proved by any evidence, including evidence outside the record of conviction.”[95]  Thus, apparently any information may be submitted to the IJ to determine whether the “extra element” has been met, including unincorporated police reports, admissions of the respondent before the IJ, letters from disgruntled ex-spouses, etc. 

 

The BIA equated this record-of-conviction-free analysis to the determination of whether an offense is a “particularly serious crime” for asylum and withholding purposes, and found that “[a]lthough some burden to the system may result from the inapplicability of the categorical approach in this instance, we believe such burden to be minor.”[96]  Here the BIA paid very little heed to the decades of caselaw stating that the administrative courts should not in effect re-try a criminal matter by looking beyond the record of conviction,[97] and did not provide a reasoned analysis of the necessity to overrule it.  Applying this approach would, moreover, open the door to respondent to introduce any evidence whatever on these issues as well, resulting in the relitigation of the issues of the criminal case, and beyond as well, turning a conviction-based ground into a conduct-based ground of deportation.

 

The BIA admitted that it would be possible to establish the “commercial advantage” element by looking to the record of conviction, and gave no justification for the holding that the immigration authorities could now look beyond the record of conviction, other than to state that abandoning the record of conviction limitation would give “life” to the commercial advantage restriction, because such information might not otherwise be “readily” available.[98]

 

This decision could have extremely dangerous implications for other grounds of removal, particularly aggravated felony fraud, sexual abuse of a minor, and the domestic violence ground of removal.  It is unclear whether any circuit would go so far.  , Counsel should strongly argue that the BIA should not be allowed to look beyond the record of conviction, even if applying an “extra element” analysis.

[63] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) [“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[64] Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (federal conviction for conspiracy under 18 U.S.C. § 371, where the underlying offense was a violation of 18 U.S.C. § 1344 [bank fraud] with a loss in excess of $10,000, is an aggravated felony fraud offense for immigration purposes).

[65] Compare Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (describing “modified categorical” as synonymous with second step of Taylor/Shepard categorical analysis); Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. Aug. 24, 2006) (same); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (extending beyond Taylor/Shepard analysis only when the ground of removal at issues requires “extra element” analysis).

[66] The court’s basis for this departure was that respondents in removal proceedings had no constitutional rights under the Sixth Amendment, that applying a Taylor categorical analysis impermissibly inflated the Government’s burden to demonstrate removal from clear and convincing to beyond a reasonable doubt, and because the court did not want to “impede unduly the Executive Branch’s exercise of the civil removal power.”  Conteh v. Gonzales, 461 F.3d at 55-56.

[67] Id. at 56 (“by reference to facts that can be mined from the record of conviction”). 

[68] Id. at 55-56.

[69] Id. at 60-62.

[70] Id. at 54-57.

[71] See United States v. Parker, 5 F.3d 1322, 1324-1326 (9th Cir. 1993); United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir. 1988); United States v. Springfield, 829 F.2d 860 (9th Cir. Oct. 6, 1987).

[72] See Leocal v. Ashcroft, 553 U.S. 1, 7 (2004) (“[t]his language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to the petitioners crime.”).  In fact, in Gonzales v. Duenas-Alvarez, __ U.S. __, 127 S.Ct. 815 (Jan. 17, 2007), the court cited Conteh in recognizing that the second step of the Taylor analysis is widely known as the “modified categorical approach.”

[73] Conteh v. Gonzales, 461 F.3d at 55, citing Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA 2004); Matter of Pichardo-Sufren, 21 I. & N. Dec. 330 (BIA 1996).  Note that Matter of Pichardo-Sufren, supra, also applied the documents listed in 8 C.F.R. § 3.41(d) to determine the nature of the conviction, which the Conteh court specifically rejected.  Conteh, supra, at 58.  In Vargas-Sarmiento, 23 I. & N. Dec. at 655, the BIA found that the respondent had initially been charged with murder, and used that information to determine that the respondent must have been convicted of either of two subsections of a divisible manslaughter statute because only those two subjections were lesser-included offenses to murder.  This analysis did not require any examination into the facts of the case.

[74] Sutherland v. Reno, 228 F.3d 171, 176-78 (2d Cir. 2000).

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

[76] Id. at 163.

[77] “The meaning of a word is or may be known from the accompanying words.”  Black’s Law Dictionary 1060 (6th ed.1990).

[78] Singh v. Ashcroft, supra, at 164.

[79] Alaka v. Attorney General,  456 F.3d 88 (3d Cir. Jul. 18, 2006).

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

[81] Alaka v. Attorney General, 456 F.3d 88 at 106.  See also Nugent v. Ashcroft, 367 F.3d 162, 175 (3d Cir. 2004).

[82] James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (federal conviction for aiding and abetting bank fraud, in violation of 8 U.S.C. § § 2, 1344, is an aggravated felony fraud offense involving loss to the victim in excess of $10,000, where noncitizen pleaded to a guilty count involving a loss of $9,500, but the count of conviction also alleged a grander scheme to defraud and the actual loss determined at sentencing exceeded $10,000).

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

[84] James v. Gonzales, supra, citing Khalayeh v. INS, 287 F.3d 978 (10th Cir. 2002) (permitting reference to sentencing’s judge findings where count of conviction charged a scheme, and defendant agreed in plea agreement to pay full amount found by sentencing judge).

[85] Gattem v. Gonzales, 412 F.3d 758 (7th Cir. June 20, 2005).

[86] Id. at 761.

[87] Sharashidze v. Gonzoles, 480 F.3d 566 (7th Cir. Mar. 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 [“offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification],” held deportable where the offense in fact involved a minor constituted an aggravated felony sexual abuse of a minor offense for removal purposes under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).

[88] Id.

[89] Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007).

[90] Id. at 114.

[91] Id. at 113.   See also Id. at 113 n.1 (citing Conteh, supra, and suggesting it could re-examine in the future whether the categorical analysis should be followed in the immigration context at all).

[92] 18 U.S.C. § § 2421, 2422(b), 2423.

[93] Id. at 114.  See also Id. at 114 n.4, noting that an element of “commercial advantage” was added to 18 U.S.C. § 2423(d) in 2003.

[94] INA § 101(a)(43)(K)(ii), 8 U.S.C. § 1101(a)(43)(K)(ii).

[95] Matter of Gertsenshteyn, 24 I. & N. Dec. at 112 (emphasis added).

[96] Id. at 116.

[97] See § 16.19, infra.

[98] Matter of Gertsenshteyn, 24 I. & N. Dec. at 115.