(A)  Judicial Elements.  The law of the state where a conviction occurs[393] must be examined to determine the elements of the offense of conviction as defined by the statute and any state case law[394] that interprets that statute.[395]  This analysis, however, does not include relying upon state law to determine whether an offense is an aggravated felony, a crime of violence, or a crime of moral turpitude:  

 

This court’s determination of whether solicitation of burglary is a crime of violence under the Guidelines is not dictated by Arizona state law regarding whether solicitation is a crime of communication or a crime of violence. In Taylor v. United States, the Supreme Court rejected the contention that the term “burglary” in the Armed Career Criminal Act “means ‘burglary’ however a state chooses to define it.” 495 U.S. 575, 579, 592, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (quotation omitted). Instead, the Court concluded Congress intended burglary to mean generic burglary as currently defined in the criminal codes of most states. Id. at 598. The Court reasoned: “[i]t seems to us to be implausible that Congress intended the meaning of ‘burglary’ ... to depend on the definition adopted by the State of conviction”; such a conclusion would lead to “the unfairness of having enhancement [under Federal law] depend upon the label employed by the State of conviction.” Id. at 589-90; cf. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119-20, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (noting that state law that expunged conviction after completion of probation did not erase conviction for purposes of Gun Control Act because “federal program would be impaired if state law were to control”); United States v. Nardello, 393 U.S. 286, 293-95, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) (prohibition of extortion in violation of state law in the Travel Act is not limited to only those extortionate activities that a particular state defines as extortion). Similarly, state law characterizations of solicitation are irrelevant to our analysis of whether generic solicitation is a crime of violence under the Guidelines. The purpose of the Sentencing Commission is to provide “certainty and fairness” in sentencing and to avoid “unwarranted sentencing disparities.” 28 U.S.C. §   991(b)(1)(B). Dependence on state law characterizations of what constitutes a crime of violence would inhibit these objectives.[396]

 

The label given to the offense by the state (i.e., what the offense is called by the state) is also irrelevant.[397]  The label a state gives a particular crime is not an element of a conviction under that statute, and is irrelevant in determining whether a conviction involves moral turpitude.  In Matter of Franklin,[398] the BIA rejected the respondent’s argument that prior BIA case law established that involuntary manslaughter was not a crime involving moral turpitude, and that his conviction under Missouri’s “involuntary manslaughter” statute also did not involve moral turpitude merely because of the label given that statute.  The BIA held that a “‘black-letter’ holding that convictions for involuntary manslaughter do not constitute crimes involving moral turpitude is not workable.”[399]  Because the elements of the various states’ manslaughter statutes differ, the BIA held that “one must analyze the specific statute under which the alien was convicted on a case-by-case basis in order to determine whether the conviction is for a crime involving moral turpitude.”[400]

[393] Including Puerto Rico. See Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28 U.S.C. § 1738, extending full faith and credit doctrine to Puerto Rico; 48 U.S.C. § 734, providing that, unless otherwise specified, federal statutes applicable to states apply to Puerto Rico); see also Cruz v. Melecio, 204 F.3d 14 (1st Cir. 2000).

[394] See § 16.6, supra.

[395] See, e.g., Blake v. Gonzales, 481 F.3d 152, 157, n.3 (2d Cir. Mar. 28, 2007) (in determining the elements of the offense of conviction under state law, “we are bound to apply the law as interpreted by a state’s intermediate appellate courts unless we find persuasive evidence that the state’s highest court, which has not ruled on this issue, would reach a different conclusion.  See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999).”); United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006) (reviewing court is bound by state court interpretation of statute defining state criminal offense in performing categorical analysis of whether state conviction falls within federal “crime of violence” definition under USSG § 2L1.2(b)(1)(A)(ii)), citing Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513 (1933); Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), as interpreted by California judicial decisions defining the elements of the offense, invariably requires an element of fraud or deceit, and therefore constitutes an offense involving fraud or deceit for purposes of qualifying as an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997) (although language of Arizona burglary statute met generic definition of burglary for federal sentence enhancement purposes, Arizona judicial decisions had expanded the definition to include a conviction in which the intent to commit the crime had been formed after entry of the structure, so the Arizona offense could be committed by shoplifting in a building, which does not satisfy the Taylor categorical approach for defining a crime of violence); Cabral v. INS, 15 F.3d 193, 196 n.5 (1st Cir. 1994) (“We look to state law only to determine the elements of the offense of conviction.  See Matter of H, 7 I. & N. Dec. 359, 360 (BIA 1956).”); Tutrone v. Shaughnessy, 160 F.Supp. 433 (D.N.Y. 1958) (essential question in determining whether a crime involves moral turpitude is whether the proscribed act, as defined by the law of the state in which it was committed, includes elements which necessarily demonstrate the baseness, vileness and depravity of the perpetrator); Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (if a state crime is involved, the courts must look to the law and procedure of the state to interpret what happened in the state court).

[396] United States v. Cornelio-Pena, 435 F.3d 1279, 1284 n.4 (10th Cir. Jan. 30, 2006).  See also United States v. Brown, 314 F.3d 1216, 1223-1224 (10th Cir. Jan. 6, 2003); U. S. ex rel. Sollazzo v. Esperdy, 187 F.Supp. 753 (D.N.Y. 1960), aff’d, 285 F.2d 341 (2d Cir.), cert. denied, 366 U.S. 905, 81 S.Ct. 1049 (1961) (state characterizations of a particular offense as involving moral turpitude are not, in and of themselves, conclusive to the application of immigration laws).

[397] See Jeune v. Attorney General, 476 F.3d 199 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, in violation of  35 Pa. Cons.Stat. Ann. § 780-113(a)(30), does not constitute an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, even though defendant was sentenced under state sentencing statute labelled “drug trafficking,” since statute provided no more than that the defendant was convicted under the statute of the offense of conviction); United States v. Taylor, 495 U.S. 575, 591-92 (citing United States v. Nardello, 393 U.S. 286, 293-94 (1969)); United States ex rel. Fontan v. Uhl, 16 F.Supp. 428 (S.D.N.Y. 1936) (holding that the offense, under French law, of not having paid one’s ship passage does not constitute a crime involving moral turpitude, even though designated as a “robbery”); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957) (the name or label attached to the proscribed conduct does not determine whether the offense involves moral turpitude; the determination of moral turpitude inherent in a conviction of violating a criminal statute must be made from the elements of the offense).

[398] Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994).

[399] Id. at 870-871.

[400] Id. at 871.  Compare Matter of Khourn, 21 I. & N. Dec. 1041 (BIA 1997) (finding that conviction for distribution of a controlled substance is a CMT where evil intent is required for conviction) with Matter of Abreu-Semino, 12 I. & N. Dec. 775 (BIA 1968) (finding that conviction for unlawful possession and sale of a controlled substance was not a CMT because intent was not required for a conviction).  Compare Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992) (conviction for passing bad checks not a CMT because intent to defraud not an element of the offense) with Matter of Bart, 20 I. & N. Dec. 436 (BIA 1992) (conviction for passing bad checks a CMT because intent to defraud was an element of the offense).

Second Circuit

CONVICTION - NATURE OF CONVICTION - ELEMENTS OF OFFENSE OF CONVICTION - STATE JUDICIAL DECISIONS INCLUDE INTERMEDIATE APPELLATE COURTS AS WELL AS STATE SUPREME COURT
Blake v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 914865 (2d Cir. March 28, 2007) (in determining the elements of the offense of conviction under state law, "we are bound to apply the law as interpreted by a state's intermediate appellate courts unless we find persuasive evidence that the state's highest court, which has not ruled on this issue, would reach a different conclusion. See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir.1999).").

Third Circuit

RECORD OF CONVICTION - LABEL OF STATE SENTENCING STATUTE NOT PART OF THE RECORD OF CONVICTION
Jeune v. Attorney General, 476 F.3d 199, 2007 WL 512510 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, in violation of 35 Pa. Cons.Stat. Ann. 780-113(a)(30), does not constitute an "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes, even though defendant was sentenced under state sentencing statute labelled "drug trafficking," since statute provided no more than that the defendant was convicted under the statute of the offense of conviction).

Fifth Circuit

CONVICTION - EFFECT OF STATE LAW ON FEDERAL IMMIGRATION DECISION - IMMIGRATION CONSEQUENCES OF CONVICTIONS ARE QUESTIONS OF FEDERAL, NOT STATE, LAW
United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (federal sentence effect of state conviction is a question of federal, not state law, holding Full Faith and Credit Act, 28 U.S.C. 1738, did not require federal sentencing court to follow state law on whether it constituted a conviction to enhance a federal sentence); see United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).

DIVISIBLE STATUTE ANALYSIS - STATE LABEL
United States v. Iniguez-Barba, ___ F.3d ___, 485 F.3d 790 (5th Cir. April 25, 2007) (per curiam) ("While we don't look only to the label of the statute at issue to determine what exactly it proscribes, see Fierro-Reyna, 466 F.3d at 326-27, of course we must look to the labels of the statutes to which we compare the statute at issue.")

Eighth Circuit

NATURE OF OFFENSE - STATE LABEL IRRELEVANT
United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. May 29, 2008) ("The mere fact that a state labels a crime as forgery does not control whether his crime is actually related to forgery [under federal law]."), citing Taylor v. United States, 495 U.S. 575, 590-591, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Other

MARIANA ISLANDS COME UNDER INA
S.2739 became Public Law No. 110-229 on May 8, 2008, the immigration related provisions are excerpted here. http://www.ilw.com/immigdaily/news/2008,0514-cnmi.shtm