Criminal Defense of Immigrants


§ 22.20 1. Normal Analysis

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The BIA in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), held that the full categorical approach applies to any category of crimes contained in the Domestic Violence deportation ground, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), including crimes of Child Abuse. The BIA cited Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), for this point, but gave no indication they would disagree in other circuits. Therefore, the BIA applies the full categorical approach nationally to crimes of child abuse within the domestic violence ground of deportation. The United States Supreme Court, in Nijhawan and Johnson clarified how to apply the categorical approach to generic offenses such as crimes of child abuse. Nijhawan v. Holder, 129 S.Ct. 2294, 2303 (2009); Johnson v. United States, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (Mar. 2, 2010). In Nijhawan, the Supreme Court affirmed that under the categorical approach, if a criminal statute is missing an element of the offense, a court cannot supply the missing element by looking at the record of conviction. The modified categorical approach, including consulting the record of conviction, can be done only to determine which set of elements (i.e., which offense of two or more), within a divisible statute containing more than one offense was the offense of which respondent was convicted. The Supreme Court in Nijhawan explained how the categorical approach would apply to the loss component of aggravated felony fraud offenses. It found if the strict categorical approach were used, the statute defining the offense must actually have an element of the offense required for guilty requiring a loss in excess of $10,000. A more general loss requirement, or a requirement of "at least $5,000," would not be sufficient, even though the fact of a loss in excess of $10,000 appeared in the record of conviction. Since very few fraud statutes require a loss in excess of $10,000, the categorical approach would practically nullify the fraud offense aggravated felony category. Therefore, Congress did not intend the categorical approach to apply to the loss requirement. Therefore, the court invented the 'circumstance specific' approach to handle that particular aggravated felony category, and very few others where Congressional intent was clear that the categorical approach is not functional. The court concluded, however, that the full categorical approach applies to the fraud offense portion of the fraud aggravated felony, and to all other conviction-based grounds of removal where to do so would not nullify Congressional intent. Nijhawan noted that the full categorical approach does apply to sexual abuse of a minor and cited with approval the Ninth Circuit case of Estrada-Espinoza, which applied the strict categorical approach to sexual abuse of a minor. Nijhawan, supra, at 2300, citing Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Nijhawan changes the test even in those circuits, like the Seventh, that before Nijhawan had held that the age component of sexual abuse of a minor aggravated felonies or child abuse domestic violence offenses need not be an element of the offense or could be proven by evidence outside the record of conviction. Immigration counsel may not wish to rely on Tokatly, however, in the child abuse context. The crime of domestic violence category, however, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), has been interpreted to include a circumstance-specific component like the loss requirement of the fraud aggravated felony discussed in Nijhawan. Bianco v. Holder, 624 F.3d 265 (5th Cir. Oct. 19, 2011) (crime of domestic violence need not have as an element the domestic relationship of victim to defendant, and the government can use any admissible evidence to prove this relationship during the removal hearing); see United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079, 1087 (February 24, 2009) (holding that the criminal statute under which the defendant was earlier convicted need not have as a specific element that the accused and victim be in a domestic relationship in order to qualify as a crime of domestic violence under 18 U.S.C. 922(g)(9), prohibiting possession of a firearm by such persons, but the domestic relationship could be proven beyond a reasonable doubt as an element of this criminal offense by evidence beyond the record of conviction of the domestic violence offense). The Ninth Circuit may follow the logic of these decisions, and overrule Tokatly in the future. If that happens, immigration counsel can object to evidence of the domestic relationship during the removal hearing on the basis of the reasonable restrictions that do exist on what evidence can be used to establish a circumstance-specific element of the crime of domestic violence removal ground. In the meantime, immigration counsel can enforce Tokatly unless it is overruled by the Ninth Circuit, but may not wish to bring it up in the child abuse context. Only the domestic relationship portion of the crime of domestic violence deportation ground may legitimately be subject to the circumstance-specific approach. The crime of violence portion remains subject to the strict categorical analysis, and the child abuse portion of the ground is likewise subject to the categorical approach. Even under the circumstance-specific approach in the domestic violence context, immigration counsel can argue that the domestic relationship must be proven beyond a reasonable doubt in the criminal case, since that is what Hayes required. Hayes, supra, at 1087 (To obtain a conviction in a 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense.); cf. Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (June 14, 2010)(prior controlled substances conviction must be proven up during the criminal proceeding beyond a reasonable doubt to establish the aggravated felony drug trafficking removal ground, even though its not an element of a underlying predicate offense). Immigration counsel, however, should not give up too soon on Tokatly, because the Ninth Circuit has already distinguished a Hayes-type finding about a prior conviction from one in immigration court, in Cisneros-Perez: Here, the contexts of the two decisions involve different statutory provisions, as to which the pertinent considerations are quite different: In Belless, the government was required to prove a second, distinct crime in the second prosecution. We concluded that the domestic aspect of a prior domestic violence conviction can be proven as an element of the second crime whether or not established by the conviction documents in the prior proceeding. Tokatly, on the other hand, involved the application of the modified categorical approach in an immigration case, such as this one, in which the inquiry is confined only to determining the nature of the prior crime. As Tokatly indicated, citing statutory language in the immigration statutes, when Congress wants to make conduct the basis for removal [rather than conviction] it does so specifically. Tokatly, 371 F.3d at 622. We conclude that Belless does not apply in the immigration context. Instead, the clear and direct holding of Tokatly-that the modified categorical approach applies to prior crimes of domestic violence in the immigration context-is controlling. (Cisneros-Perez v. Gonzales 465 F.3d 386, 392 (9th Cir.2006) (emphasis added).) Thanks to Kathy Brady, Dan Kesselbrenner, and Jonathan Moore.