Criminal Defense of Immigrants

(E)  Sentences.  Singh noted that the record of conviction generally must be consulted where the aggravated felony definition requires a specific sentence to have been imposed.[123]  The question of sentence, however, is distinct from the question of the nature or elements of the offense of conviction.[124]  Therefore, decisions allowing resort to the record of conviction to determine the sentence imposed do not undermine the rule that the categorical analysis must be used to determine the nature of the offense.

                As another example of where the aggravated felony definition invites an examination of the facts, the Third Circuit in Singh court cited the aggravated felony definition of failure to appear to dispose of a charge of a felony for which a sentence of two years imprisonment or more may be imposed.[125]  Under the analysis of the Third Circuit, the language of this section requires that the adjudicator go beyond the statutory elements of a failure to appear conviction to determine from the record the maximum possible sentence of the underlying charged felony.[126]

                There is no need to create an exception to categorical analysis to reach this result.  The courts have long allowed resort to the record of conviction in all cases for certain limited purposes.  First, the record of conviction is always used to identify the statute of conviction.  Second, the record of conviction has always been used to determine the sentence where that is a component of the ground of deportation.  The crime of moral turpitude deportation ground, the longest standing of them all, formerly required a sentence imposed of one year or more before deportation would be triggered.[127]  The courts have always used the record of conviction to determine whether this sentence-imposed requirement had been met.[128]  There is no need to preclude resort to the record of conviction to determine sentence or potential sentence, as there is no administrative burden of relitigating the facts of the case or risk of unfairness to the respondent.  See § 16.19, infra.

[123] Singh v. Ashcroft, 383 F.3d at 161-162.  See, e.g., INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (“term of imprisonment at least one year”).  But see United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001); Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (applying Taylor analysis to sentences to find that, as a recidivist sentence enhancement was not an “element” of an offense, such an enhancement could not be considered in determining the length of sentence imposed).  See also § § 3.61-3.63, supra.

[124] But see Blakely v. Washington, 542 U.S. 296 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant “statutory maximum” is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).

[125] Ibid., citing INA § 101(a)(43)(T), 8 U.S.C. § 1101(a)(43)(T).

[126] See also INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (failure to appear for service of sentence where the underlying offense is punishable by imprisonment of 5 years or more).

[127] Former INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).  The new sentence requirement (maximum possible sentence of one year or more sufficient for deportation) generally applies to removal proceedings initiated on or after April 24, 1996.  See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 5.10(A) (2d ed. 2005); C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 71.01[2][a], [b] (2007).

[128] E.g., Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992); Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972).  See United States v. Garfinkel, 158 F.Supp. 524 (W.D. Pa. 1957), aff’d per curiam, 251 F.2d 846 (3d Cir. 1958); Matter of V, 7 I. & N. Dec. 577 (BIA 1957).  See also  C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 71.05[1][c][ii] (2007).