Criminal Defense of Immigrants

 

(A)  In General.  As a general rule, if a statute (or non-divisible part of a statute) encompasses both acts that do and do not fall within a ground of removal, the Immigration Judge or BIA cannot sustain a removal finding on the basis of a conviction of violating that statute.[137]  Thus, to decide whether a crime is deportable by its nature, the BIA considers whether the minimum conduct necessary to violate the statute always falls within the definition of the removable category of offense.[138] 

 

                The same holds true where the reviewing court has found the statute divisible, but cannot determine the set of elements to which the defendant entered his or her plea from the record of conviction.  In this case, the court must look at the minimum conduct punishable under any of the sets of elements.[139]  In Malta-Espinoza v. Gonzalez,[140] for example, the Ninth Circuit found that where a noncitizen was charged with a divisible statute in the conjunctive (e.g., defendant intentionally and negligently committed an offense),[141] “[a]ll that we can gather from the charge and the bare record of a plea of guilty, therefore, is that Malta-Espinoza was guilty of either following or harassing or both.  This fact need not affect our analysis, however, because under a categorical analysis we must determine whether the ‘full range of conduct’ covered by the statute falls within the definition of ‘crime of  violence.’”[142] 

 

Applying the categorical analysis, if even the most minimal conduct punished under the statute triggers removal under the ground at issue, then the statute is said to be a “categorical” match to the ground of removal.[143]  However, if there is any way that a person can be convicted under a given statutory section, without triggering a ground of removal, then no convictions under that statute can be held to trigger removal under that ground.[144]  In other words, the “full range of conduct”[145] punishable under the statute (or subdivision) must fall within the ground of removal.  If every part of a circle representing the conduct encompassed in the statute of conviction falls within a larger circle defined by the ground of removal, that conviction triggers removal under that ground.

 

                The United States Supreme Court very recently made a statement that may somewhat limit the usefulness of the minimum conduct analysis.  In the aggravated felony context, where a specific aggravated felony category may be defined by a “generic” definition of the terms used,[146] the Court stated:

 

Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he 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.[147]

 

This means that the immigration authorities may, in the future, require citation to actual state caselaw in order to define the minimum conduct punishable under a given statute.  It may no longer be sufficient merely to suggest a hypothetical situation, based upon the language of the statute, in which the statute may be violated, but the elements of the statute of removal are not met.  This is troubling because there may in fact be many cases where a state has arrested and prosecuted defendants for minimal, non-deportable conduct, but where no published caselaw exists to demonstrate this fact.  Counsel may ultimately be required, for example, to request an affidavit of a state prosecutor or (more likely) defense attorney as to the state’s practices.[148]

[137] Jeune v. Attorney General, 476 F.3d 199 (3d Cir. Feb. 20, 2007) (“Moreover, this Court has indicated that we must assume that Jeune’s conduct was only the minimum necessary to comport with the statute and record. Partyka v. Att’y Gen. of U.S., 417 F.3d 408, 411 (3d Cir. 2005) (“Under this categorical approach, we read the applicable statute to ascertain the least culpable conduct necessary to sustain a conviction under the statute.”); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003) (“Because the state statute under which Wilson pled guilty does not contain sale for remuneration as an element, we cannot determine from the state court judgment that Wilson’s conviction necessarily entails a finding of remuneration.”); Steele v. Blackman, 236 F.3d 130, 136 (3d Cir. 2001) (limiting the inquiry to what the state court must necessarily have found). To conform with these precedents, we must conclude that Jeune’s conduct was the bare minimum necessary to trigger 35 Pa. Cons.Stat. Ann. § 780-113(a)(30) and therefore does not constitute an aggravated felony.”); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (“[t]he crime defined by [California Penal Code § 261.5(c)] qualifies as ‘sexual abuse of a minor’ and hence an aggravated felony if and only if the full range of conduct covered by it falls within the meaning of that term.”) (internal quotations and citation omitted); Michel v. INS, 206 F.3d 253, 270 (2d Cir. 2000) (opinion of Sotomayor, J.).

[138] Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of “theft of a means of transportation,” in violation of Arizona Revised Statute § 13-1814, did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), where the record of conviction did not establish that the noncitizen had been convicted of violating a portion of the statute of conviction that required intent); Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996) (“if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on that statute”); Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957); Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D. Cal 1952); Matter of Reyes-Torres, File No. A91-406-680 (BIA 1999) (Texas DUI conviction does not constitute crime involving moral turpitude because it does not necessarily involve conduct that is morally blameworthy); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of N, 8 I. & N. Dec. 466 (BIA 1959) (malicious mischief).  See also Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980); Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957).

[139] See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1168 (9th Cir. Nov. 15, 2006) (“The record does not specify under which subsection [the defendant] was convicted in 2002.  Accordingly, if any of the three subsections . . . does not involve moral turpitude, then his 2002 conviction does not qualify as a crime of that nature.”).

[140] Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1083 (9th Cir. Mar. 2, 2007) (“It is common to charge conjunctively when an underlying statute proscribes more than one act disjunctively; such a charge permits conviction upon proof that the defendant committed either of the conjunctively charged acts.  See, e.g., United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) (“Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.”)). 

[141] See § 16.12, infra.

[142] Malta-Espinoza v. Gonzales, 478 F.3d at 1083-1084 (emphasis added).

[143] See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 (9th Cir. Dec. 27, 2005) (Washington statute punishing making of a harassing telephone call, in violation of R.C.W. § 9.61.230(3)(b), “in all cases requires for conviction and felony punishment that there has been a threat to kill, so the minimum elements of this statutory provision necessarily include threatened use of violence.”).

[144] See, e.g., Singh v. Gonzales, 432 F.3d 533 (3d Cir. Jan. 3, 2006) (“We have held that another section of the Pennsylvania simple assault statute, 18 Pa. Cons.Stat. Ann. § 2701(a)(1), which states that “[a] person is guilty of assault if he ... attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another,” requires no more than a mens rea of recklessness, and therefore does not describe a crime of violence within the meaning of § 16(a).  Popal v. Gonzales, 416 F.3d 249, 254-55 (3d Cir. 2005) (citing Tran, 414 F.3d at 472).  It is not dispositive that the crime may be proven by a showing of specific intent – all that is necessary to place it outside § 16(a) is that it could also be established with proof of a lesser mens rea.”); Matter of Esfandiary, 16 I. & N. Dec. 659 (BIA 1979).

[145] United States v. Rivera-Sanchez, 247 F.3d 905, 907-909 (9th Cir. 2001) (en banc).

[146] See § 19.9, infra.

[147] Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815 (Jan. 17, 2007) (generic definition of “theft offense” for purposes of INA § 101(a)(43)(G) includes “aiding and abetting” a theft).

[148] Thanks to Lynn Marcus for this suggestion.