Criminal Defense of Immigrants

(G)  Requirement of Proving Actual Prosecution of Offenses in the Safe Area of the Statute of Conviction. The Supreme Court has stated, possibly in dictum, that merely imagining a non-deportable hypothetical that falls within the statute of conviction does not require a conclusion that the person is not deportable, or subject to other adverse immigration consequences in which the government bears the burden of proof, unless s/he shows the individual case falls in the safe area of the statute of conviction, or that others have been prosecuted for conduct that falls within the safe area.[133]  Lower courts are beginning to follow the lead of the Supreme Court on this point.  For example, in United States v. Carson,[134] the Ninth Circuit applied to an Armed Career Criminal Act case the problematic Duenas-Alvarez language, which required a showing that there was a realistic probablility of the state prosecuting a scenario as coming within the elements of a statute:

Under the categorical analysis of Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we look to the statutory definition of the prior offense to determine whether the “elements of the offense are of the type that would justify its inclusion” within the federal provision. James v. United States, --- U.S. ----, ----, 127 S.Ct. 1586, 1594, --- L.Ed.2d ----, ---- (2007). In so doing, we must not conjure up some scenario, however improbable, whereby a defendant might be convicted under the statute in question even though he did not commit an act encompassed by the federal provision. Rather, we must find “a realistic probability, not a theoretical possibility,” that this might happen. Gonzales v. Duenas-Alvarez, --- U.S. ----, ----, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). In other words, “the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case,” would satisfy the requirements of section 4B1.1(a). James, 127 S.Ct. at 1597 (emphasis added). If we find that it would, the burden shifts to the defendant to “at least point to his own case or other cases” where the state courts applied the statute in a way that would make it overbroad under Taylor. Duenas-Alvarez, 127 S.Ct. at 822.

It concluded that: “Under the categorical approach, as refined by James and Duenas-Alvarez, we have little difficulty concluding that a conviction under subsection (1)(f) of Washington’s second-degree assault statute “presents a serious potential risk of physical injury to another” and is therefore a “crime of violence’

for the purposes of the career offender enhancement provision.[135]  The Fifth Circuit likewise used the Duenas language to reject an overbroad argument in a categorical analysis for lack of proof that the “safe” area of the state statute was actually prosecuted.[136]

                There are two approaches to dealing with this question.  First, immigration counsel can argue that this is nothing more than dictum, and should not be followed until it becomes an actual holding, since it violates the long-standing rule that requires use of the categorical analysis, looking at the elements of the offense of conviction, rather than relitigating the underlying facts of the case.  It also seems to undermine the traditional rules that the burden of proof of deportability falls on the government, and the rule of lenity as applied in immigration proceedings, and so should not be adopted as law without consideration of the effects of abolishing these long-standing rules.

                Second, immigration counsel can attempt to comply with this Supreme Court language.  This can be done through citation to published or unpublished cases in the convicting jurisdiction , or any other jurisdiction, that show conduct in the safe area has in fact been prosecuted, or perhaps through jury instructions clearly stating that the jury should convict a defendant for conduct in the safe area.  In addition, showing that the charge in any case encompasses non-deportable conduct should also be sufficient to meet this test, since it informs the accused that he is thereby guilty of the offense and constitutes an official representation by the prosecutor to the court that this conduct constitutes the crime charged.  Other types of proof may also be used, although the law is still developing in this area.  Therefore, before regarding a disposition as a safe haven in which the statute of conviction is overbroad with respect to the ground of removal, it is wiser to make sure the defendant can meet the additional requirement described here.

                Criminal defense counsel should employ the second approach, and seek “safe haven” dispositions in which it is relatively easy to establish that conduct falling within the “safe” or non-removable area of the statute of conviction is actually prosecuted in the jurisdiction.

[133] Gonzales v. Duenas-Alvarez, ___ U.S. ___, 127 S.Ct. 815, 817 (Jan. 17, 2007) (“[T]o find that state law creates a crime outside the generic definition of a listed crime in a federal statute requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct falling outside the generic definition. To make that showing, an offender must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues. Respondent makes no such showing.”).  The Supreme Court shortly thereafter echoed this language in a criminal sentencing case involving the categorical analysis.  James v. United States, ___ U.S. ___, ___, 127 S.Ct. 1586, 1594 (Apr. 18, 2007).

[134] United States v. Carson, ___ F.3d ___, ___ (9th Cir. May 15, 2007).

[135] Id. at ___.

[136] United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. Apr. 7, 2007) (court rejected argument that Kansas statute included consensual sex between 15-year-olds as basis for finding conviction not to be a crime of violence for sentencing purposes; it acknowledged that before Duenas, that argument might have prevailed, but after Duenas, defendant must establish that a 15-year-old had actually been prosecuted as the defendant suggested).