Criminal Defense of Immigrants


§ 19.9 (A)

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(A)  Creating a Generic Definition.  It is entirely reasonable to require the BIA to consult federal criminal law sources to arrive at a reasoned and consistent definition of the aggravated felony offenses, in order to meet basic requirements of fairness, predictability and judicial process in adjudicating these high-stakes cases.[30]  Many have called for the BIA to establish a consistent and clearly articulated standard to determine whether a state offense is an aggravated felony, based on a federal model.[31]  They cite the U.S. Supreme Court case of Taylor v. United States[32] as support for the proposition that “a generic definition based on a federal standard is an appropriate mechanism by which to determine whether or not there has been a conviction for a particular crime.”[33]   


In Taylor, the court overturned a lower court’s ruling that conviction of any state offense bearing the state title “burglary” should qualify as a prior conviction of burglary, a listed offense in the federal sentencing enhancement statute.[34]   It noted that states had very different definitions of burglary.  As an example, it pointed to California’s definition of burglary as being defined so “broadly as to include shoplifting and theft of goods from a ‘locked’ but unoccupied automobile,” whereas burglary traditionally referred only to buildings.[35]   The court disapproved of allowing such disparate state laws to lead to disparate results.[36]


                The Supreme Court ruled that, given that the federal sentence enhancement statute itself offered no definition of burglary, it was necessary to adopt a uniform, “generic” federal definition of burglary for this purpose.  To do this, the court looked at several sources.  It considered using the common law meaning, but found that in the case of burglary, most states had decided to define the offense of burglary much more broadly than the original common law definition.[37]  The court went on to consult the Model Penal Code and basic treatises on criminal law.[38]   Deciding that “Congress meant by ‘burglary’ the generic sense in which the term is now used in most States’ criminal codes,”[39] the court derived a generic definition of burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”[40]  


                Having established a generic definition of burglary, the court then compared the elements of the burglary conviction in the case before it with the generic definition.  The court found that the offense of conviction was broader than the generic definition of burglary, and therefore did not trigger the sentence enhancement.  To make this comparison, the court used a categorical analysis, including a review (if necessary) of the record of conviction.  The Ninth Circuit followed this analysis in Ye v. INS, finding that auto burglary does not qualify as aggravated felony “burglary”[41] because the generic definition of burglary requires unlawful entry into a structure.


                Most recently, the United States Supreme Court looked to application of various legal doctrines as applied by the 50 states in determining whether the “generic definition” of theft includes aiding and abetting offenses.  The court suggested that where a minority of states (in this case 10) followed one rule, but the majority of states and federal law followed another, the majority position should be considered part of the generic definition.[42]


                The Ninth Circuit used the Taylor analysis to develop a generic definition of “extortion” under 18 U.S.C. § 924(e).[43]  The court first reviewed the definition of extortion under the laws of several states, but found that states were split on important elements of the offense.  The court ultimately decided to use the definition of extortion set out in a federal criminal statute:


In a case like this, we must articulate a definition of extortion as a matter of federal common law.  There are several ways we can do this.  We might simply let the definition of extortion develop on a case by case basis.  This would be consistent with the common law tradition, but inconsistent with the rule that penal statutes should give the citizenry fair notice, both of the crime and the punishment.  [Citation omitted.] We might try to glean a definition from state law, but as mentioned, this is virtually impossible in this case because the state laws differ so much.  We might make up a definition from scratch, but being fundamentally law interpreters, not lawmakers, we generally prefer not to do this.


Fortunately we have one other avenue open to us: Congress has already defined “extortion” in another federal criminal statute [the Hobbs Act, 18 U.S.C. § 1951] . . . .  We realize the Hobbs Act is not in pari materia with the Armed Career Criminal Act; it was aimed at a different problem and passed at a different time.  It is, however, the law under which most federal extortion prosecutions take place, and its definition of extortion is the one quoted in Black’s Law Dictionary . . . .[44]


The Ninth Circuit found that the elements of the extortion offense of which the appellant had been convicted did not fall within the generic definition, and therefore held that the prior conviction should not have been used as a sentence enhancement.

[30] Moreover, the Board has taken on this kind of task before.  For example, in the landmark case Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), the Board developed its own “generic” federal definition of conviction.  It then proceeded to compare each state’s statutory scheme to its own federal definition to determine whether a conviction had occurred, disregarding each state’s legal description of its own laws in favor of the comparison to the federal standard.  Congress signaled its approval of the BIA’s process by codifying Ozkok, with one amendment, in the IIRAIRA statutory definition of conviction.  See legislative history to INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), at H.R. Conf. Rep. No. 828, 104th Cong. 2d Sess. (1996).

[31] See Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (concurring/dissenting opinion by Board Members Schmidt and Rosenberg).  See also Board Member Rosenberg’s dissenting opinion in Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998), in which she proposes that the BIA consider sources of law including federal statute, the Model Penal Code and common law definitions to arrive at a standard “federal” definition of the offense for this purpose.  In Palacios, Rosenberg proposed a multi-part test to consider whether a state arson conviction was a crime of violence.  She proposed that the BIA (a) consult federal statute, common law and/or the Model Penal Code to arrive at a uniform federal definition of arson for purposes of aggravated felonies; (b) evaluate that definition of arson to see if it constitutes a “crime of violence” under 18 U.S.C. § 16; and (c) if so, examine the state arson offense of which the person was actually convicted to determine whether it fit the BIA’s model definition.

[32] Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990) (holding that a state conviction for burglary only constitutes such an offense for purposes of the Anti-Drug Abuse Act of 1986, 18 U.S.C. § 924(e), when the offense’s statutory definition falls within the generic federal definition).

[33] See Rosenberg, Schmidt in the dissenting/concurring opinion, Matter of Batista Hernandez, supra, at p. 22.

[34] 18 U.S.C. § 924(e)(2)(B)(ii) provides a sentence enhancement for a person convicted of a violent felony, and specifically defines violent felony to include “burglary.”

[35] Taylor, supra, 495 U.S. at 591, 110 S.Ct. at 2154.

[36] The court stated:  “Thus, a person imprudent enough to shoplift or steal from an automobile in California would be found . . . to have committed a burglary constituting a “violent felony” for enhancement purposes — yet a person who did so in Michigan might not.  Without a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses, we do not interpret Congress’ omission of a definition of “burglary” in a way that leads to odd results of this kind.  See Dickerson v. New Banner Institute, Inc.  460 U.S. 103, 119-120, 103 S.Ct. 986 (1983) (absent plain indication to the contrary, federal laws are not to be construed so that their application is dependent on state law, “Because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control”); United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 56 A.L.R.2d 1300 (1957) (“In the absence of plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law”).” Ibid., 495 U.S. at 591, 110 S.Ct. at  2154.

[37] The court noted that using common-law meaning “has some appeal, in that common-law burglary is the core, or common denominator, of the contemporary usage of the term . . . .  The problem with this view is that the contemporary understanding of “burglary” has diverged a long way from its common-law roots . . . .  This court has declined to follow any rule that a statutory term is to be given its common-law meaning, when that meaning is obsolete or inconsistent with the statute’s purpose.”  Ibid., 495 U.S. at 592-593, 110 S.Ct. at 2155-56.

[38] The court consulted LaFave & Scott, substantive criminal law, § 8.13 (1986) as a source summarizing the view of several states, Blackstone, commentaries as a source of common law, and the Model Penal Code.

[39] Taylor, supra, 110 S.Ct. at 2147.

[40] Id. at 2158.

[41] Ye v. INS, 214 F.3d 1128 (9th Cir. 2000). 

[42] Gonzales v. Duenas-Alvarez, 549 U.S. __, 127 S.Ct. 815, 820 (Jan. 17, 2007).

[43] United States v. Anderson, 989 F.2d 310 (9th Cir. 1993) (defining extortion under the Armed Career Criminal Act sentence enhancement provision, 18 U.S.C. § 924(e)).

[44] Ibid., 989 F.2d at 312-313.  As the court pointed out, the Anderson case presented the opposite challenge of the Taylor case.  In Taylor there was no federal definition available but accord among the states, and in Anderson there was no accord among the states, but there was a federal statutory definition.  Id. at n.3.  The court cited Securities Industry Ass’n v. Board of Governors, 468 U.S. 137, 150-151, 104 S.Ct. 2979 (1989), as authority in favor of looking to other federal statutes for the definition of a term.  Id. at 313.  See also Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999), where on its second look at the issue, the BIA used the federal statutory offense “Obstruction of Justice” to define the aggravated felony term “obstruction of justice.”  See discussion of Espinoza and Matter of Batista-Hernandez in text immediately following.  In other cases, neither the federal statute nor the law of the majority of states may work.  The most representative and best definition may come from common law or the Model Penal Code.




Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("If that language constitutes a plain expression of congressional intent, it must be given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 842-43. When Congress's intent is not plainly expressed, however, it is our duty to resolve any ambiguities and fill any statutory gaps in a reasonable manner, at least insofar as they pertain to portions of the statute that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).").

Sixth Circuit

Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) ("Negrete is arguing that defined in and described in are synonymous. We reject this argument, primarily because it renders the distinction between the terms described in and defined in meaningless. See United States v. Michalek, 54 F.3d 325, 335-36 (7th Cir. 1995). Also, it does not follow that, because Congress has defined some crimes in general terms, it had to define all crimes in general terms in order for the offense's state law counterpart to be included within the definition of an aggravated felony. Indeed, many firearms offenses are not susceptible to being easily described in general terms, see, e.g., 18 U.S.C. 922(g)(4) (offense of possession of a firearm or ammunition by someone who has been adjudicated as a mental defective or who has been committed to a mental institution); while others are dependent on other provisions in a statutory scheme. See, e.g., 18 U.S.C. 922(o) (making it unlawful for a person to possess a "machinegun," where that term is defined elsewhere in the National Firearms Act). Congress could therefore rationally have decided to describe those offenses by reference to the statutory provision where they were located rather than conjuring up an awkward general descriptor, or having to recopy several parts of a statutory scheme.").

Ninth Circuit

Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (where the aggravated felony definition uses a phrase used elsewhere in federal law, the court will first look at a statute defining that phrase as a federal criminal offense).