Criminal Defense of Immigrants


§ 16.30 1. Dismissed Counts

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In determining whether a conviction triggers deportation, charges other than the charge(s) of which the defendant was convicted are irrelevant.  This includes dismissed[345] and vacated charges.[346]  The determination is made solely on the basis of the offense of which the defendant was convicted.[347]  “Conviction of a lesser included offense is acquittal of the higher offense. U.S. ex rel, Valenti v. Karnuth, 1 F.Supp. 370, 375 (M.D.N.Y.1932); Matter of VT, 2 I. & N. Dec. 213, 216-17 (BIA 1944); cf. Matter of W, 4 I. & N. Dec. 241 (BIA 1951).”[348]


The principle that an arrest or charge is not evidence of guilt derives from the presumption of innocence.  When the jury in a criminal case is informed of the presumption of innocence, it is told, in effect, “to judge an accused’s guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his [or her] arrest, indictment, or custody.”[349]  A charge, standing alone, is proof of nothing; the defendant may be completely innocent, and is presumed to be innocent absent a conviction on the particular charge.


                A number of courts have found, in the context of determining loss to the victim for purposes of the aggravate felony fraud category,[350] that dismissed counts (and the monetary amounts cited therein) generally may not be used to establish the loss to the victim.[351]  In this context only, an exception has been carved out by the Tenth Circuit, where the charge to which the defendant pleaded guilty contemplates a scheme to defraud, which includes the losses reflected by the dismissed counts.[352]


The Fourth Circuit has held it an abuse of discretion, and arbitrary, to consider “facts” alleged in dismissed counts in determining the immigration consequences of a conviction.[353]


Moreover, both the immigration judge and the Board considered irrelevant factors. The immigration judge relied on an indictment count (assault with intent to kill) that had been dismissed, and the Board relied on a conviction (for simple assault) that was not alleged in the Service’s order to show cause or in any additional charge. The Frentescu standard focuses on the crime that the Service claims is particularly serious, and the standard does not call for consideration of conduct that is unrelated to that crime. We can find no authority for the proposition that dismissed counts or crimes not relied upon by the Service may be considered in determining whether a specific crime is a particularly serious one. Cf. 8 U.S.C. § § 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) (barring the Attorney General from granting asylum or withholding of deportation to an alien who has been “convicted” of a particularly serious crime); id. § 1229(a)(1) (requiring “written notice” specifying the “charges against the alien”); 8 C.F.R. § 1240.10(e) (allowing the Service to lodge additional charges “[a]t any time during the proceeding,” if they are “in writing” and served upon the alien).[354]


The First Circuit has rejected this approach, holding it is proper to look to the charging paper and improperly concluding it could look at dismissed charges:


Petitioner launches a two-fold attack. He says the agency is precluded as a matter of law from relying on the documents and information it did and that in any event those documents and information do not establish “use,” but only “possession.”  The agency has said it will not look into the underlying facts of the particular crime, but will focus first on the statute of conviction. See Matter of Ajami, Interim Decision 3405, 1999 WL 487022 (BIA 1999); see also Matter of Short, 20 I. & N. Dec. 136, 1989 WL 331878 (BIA 1989). If the statute of conviction, as here, includes both crimes of moral turpitude and others, then the agency may look to the indictment, the charging papers, the conviction documents, and the like to see which type of crime was involved.  Ajami, Interim Decision 3405.


Here, the focus was on exactly those documents. The sentencing document shows petitioner pled guilty to “using” a false motor vehicle document. That document shows that there were related charges, continued without a finding, for illegally operating a motor vehicle without being duly licensed. From this, the IJ drew the quite sensible conclusion that petitioner had used a false license in connection with operating the car. The attempt at deceit is inherent in this act. There is no basis to fault this factual conclusion.


Petitioner’s other argument is that because he was never convicted of those of the charged crimes which were continued without a finding, and perforce these non-convictions were not the basis of the deportation order, there was error in considering this information. There was no error. The push in the law toward categorical approaches to classifying crimes as either involving moral turpitude or not is largely based on the policy of not retrying prior criminal convictions in later deportation hearings. Cf. United States v. Damon, 127 F.3d 139, 145-46 (1997). No such interest is served by precluding consideration of basic facts stated on the official court records of the charging and conviction documents. The categorical approach does not require that blinders be worn.[355]


There are also several older homicide cases, in which the statute of conviction did not distinguish between voluntary (CMT) and involuntary (non-CMT) manslaughter, and the court relied on the dismissed murder count for the proposition that the killing was voluntary.[356] 


These decisions should be considered aberrations.  They improperly open the door to relitigation of the facts of the case in immigration court, or violate due process by precluding the respondent from contesting the facts alleged in dismissed charges, then unfairly using those facts against him as if they were somehow established as true.  It is black letter law that an accusation is proof of nothing.


It is hornbook law that indictments cannot be considered as evidence; this rap sheet account of her arrest for the very offenses for which she was on trial does not even rise to the level of an indictment. Nevertheless, this entire document became part of the evidence and was submitted to the jury for its consideration. In our opinion it was highly prejudicial and reversible error was committed by its introduction.[357] 


The defendant did not admit the truth of the facts alleged in dismissed counts.  The prosecution did not prove them.  The court of appeals, in Montero-Ubri, ignores these basic rules.  However, these arguments were not raised in that case, so the First Circuit cannot be said to have rejected them.  No court should follow this decision, and the First Circuit should reexamine and reverse it.


[345] See, e.g., Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. Jan. 18, 2007) (even though dismissed charge indicated that defendant was originally charged with controlled substances offenses involving methamphetamine, where the defendant entered a plea to an offense that was not charged in the charging document, “there is simply no way for us to connect the references to methamphetamine in the charging document” with the uncharged offense to which the defendant ultimately pleaded guilty), citing Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006) (court could not use dismissed counts, charging spousal abuse, to create an inference that the victim of the simple battery count of which the noncitizen was convicted was in a domestic relationship with the noncitizen defendant).  See also United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. Jan. 30, 2007).

[346] Nath v. Gonzales, 467 F.3d 1185 (9th Cir. Nov. 3, 2006) (California conviction of sale or offer to transport a controlled substance, in violation of Health & Safety Code § 11379(a), did not unequivocally establish conviction of a deportable aggravated felony drug trafficking offense or deportable controlled substances offense, since record of conviction did not specify the specific offense, within the divisible statute, of which respondent had been convicted the second time after the initial conviction had been vacated; BIA erred in assuming that respondent had been reconvicted of the same offense within the divisible statute of which he had originally been convicted, since reconviction documents did not establish that he had been reconvicted of a deportable offense).

[347] Matter of B, 7 I. & N. Dec. 342 (BIA 1956).

[348] Matter of Baker, 15 I. & N. Dec. 50, 52 (BIA 1974).

[349] Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 1871 (1979).

[350] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) (fraud or deceit in which loss to the victim exceeds $10,000).  See § 19.74, infra.

[351] See, e.g, Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (in determining whether conviction constituted fraud offense aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), immigration court erred in considering amount of intended loss for all of the charges – including dismissed counts – rather than limiting loss to victim to the loss for the single count of conviction); Knutsen v. Gonzales, 429 F.3d 733 (7th Cir. 2005); Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002); Chang v. INS, 307 F.3d 1185 (9th Cir. 2002).

[352] See Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002).

[353] Yousefi v. INS, 260 F.3d 318, 329-330 (4th Cir. 2001) (decision that assault with dangerous weapon constituted “particularly serious crime” reversed, as arbitrary, on ground immigration court considered irrelevant dismissed count in reaching decision).

[354] Yousefi v. INS, 260 F.3d 318, 329-330 (4th Cir. 2001).

[355] Montero-Ubri v. INS, 229 F.3d 319, 320-321 (1st Cir. 2000).  See also Matter of Thomas, 21 I. & N. Dec. 20, 23-24 (BIA 1995) (citing several circuits allowing consideration of arrest that did not culminate in convictions for purposes of determining whether discretionary relief is warranted).

[356] “In this case, however, the indictment indicated voluntariness by the allegation that the respondent ‘deliberately, wilfully, with malice aforethought, and with premeditation did kill . . . .”  See Matter of S, 2 I. & N. Dec. 559 (C.O. 1946; BIA 1946; AG 1947), a case in which an Ohio manslaughter statute was considered.’ Matter of Pataki, 15 I. & N. Dec. 324, 325 (BIA 1975); Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975) (respondent was charged with the crime of murder in the first degree under 29 Ohio Revised Code Annotated § 2901.01 (1954), but pleaded guilty to a charge of Manslaughter First Degree, 29 Ohio Revised Code Annotated § 2901.06 (1954), which applies to both voluntary and involuntary manslaughter; the BIA considered the original dismissed charge of murder, a voluntary crime, in concluding the conviction record leads to the conclusion that the respondent’s conviction was for voluntary manslaughter, a crime involving moral turpitude); Matter of HR, 4 I. & N. Dec. 742 (BIA 1952).

[357] United States v. Cox, 536 F.2d 65, 72 (5th Cir. 1976).



Fifth Circuit

United States v. Bonilla, 524 F.3d 647 (5th Cir. Apr. 10, 2008) (sentencing court could not rely on a charge of which the defendant was not convicted to identify the particular subdivision, within a divisible statute, of which the defendant was convicted), citing United States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir. 2007); see United States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir. 2007) (reaching same conclusion when defendant pleaded guilty to attempted kidnapping but indictment charged only aggravated kidnapping); see also United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003) (holding that, in the context of USSG 4B1.2, "a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted").
United States v. Lopez-DeLeon, __ F.3d __, 2008 WL 82521 (5th Cir. Jan. 9, 2008) (applying modified categorical analysis to find that California conviction of statutory rape, under Penal Code 261.5(c) was sexual abuse of a minor for illegal re-entry sentencing purposes, even though conviction statute was overbroad, where dismissed charge indicated that the victim was 14 years old).

This is a horrible decision. Not only does the court here look at the underlying facts of the conviction, rather than the minimum conduct punishable under the statute, the court also looks to information from a dismissed count to make its determination that the offense was SAM.
United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir. Jan. 9, 2008) (California conviction of statutory rape, under Penal Code 261.5(c), was sexual abuse of a minor for illegal re-entry sentencing purposes, even though conviction statute was overbroad, where dismissed charge indicated that the victim was 14 years old).

This is a bad decision. Not only does the court here look at the underlying facts of the conviction, rather than the minimum conduct punishable under the statute, the court also looks to information from a dismissed count (Penal Code 288(a), lewd act with a person under 14) to make its determination that the offense was Sexual Abuse of a Minor. This is a guidelines case. The defendant's sentence was not enhanced for having an aggravated felony conviction as defined in INA 101(a)(43)(A), but rather for fitting under the following definition in the application notes to the sentencing guidelines. The illegal reentry sentencing guideline provides for two "crime of violence" enhancements. They are different from the immigration aggravated felony definition, and this case may not apply to the immigration context.

This case was wrongly decided, and may be damaging for immigration purposes, since the same reasoning can be applied in the aggravated felony immigration context. There does not appear to be any difference between the definition of Sexual Abuse of a Minor for aggravated felony as opposed to sentencing purposes (BIA deference notwithstanding), and the Fifth Circuit was purportedly applying Shepard and the categorical analysis.

Ninth Circuit

The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.
Aguilar-Turcios v. Holder, 691F.3d 1025, *1037 (9th Cir. Aug. 15, 2012) (there is no legal precedent that allows a court, in its application of the modified categorical approach, to look beyond the record of conviction of the particular offense that the government alleges is an aggravated felony. . . . Aguilar-Turcios Article 92 and Article 134 convictions were for separate offenses that charged different conduct, and we are reluctant to conflate the two into one or allow one to seep into the other when applying the modified categorical approach.); accord, Jaggernauth v. Atty Gen., 432 F.3d 1346, 1355 (11th Cir. 2005).
Aguilar-Turcios v. Holder, 691 F.3d 1025, *1039 (9th Cir. Aug. 15, 2012) (Because the two charges are worded differently, we cannot conclude that the two convictions necessarily rested on the same facts.)