Tooby's California Post-Conviction Relief for Immigrants

 

(E)

Categorical Analysis.  The categorical analysis, discussed more fully in Criminal Defense of Immigrants Chapter 16, includes divisible statute analysis and minimum conduct analysis, is used to determine whether a conviction will trigger a conviction based ground of removal.  See N. Tooby, Categorical Analysis Tool Kit (2009), Criminal Defense of Immigrants Chapter 16.

 

            The categorical analysis applies to all conviction-based grounds of removal, including both grounds of deportability and grounds of inadmissibility.  This analysis focuses on the elements of the crime of conviction, and ignoring the underlying facts.  A few grounds use the categorical analysis to see if a conviction falls within the generic definition of a ground of removal, but have an additional fact-specific requirement.  These facts (a) need not be elements of the crime of conviction, and (b) can be proven in removal proceedings by any admissible evidence beyond the formal "record of conviction" of the crime.[99]  These grounds with additional fact-specific requirements are listed in § 2.7(E)(4), infra.     

 

(1)  Conviction-Based Grounds.  While categorical analysis[100] and divisible statute analysis[101] apply regardless of whether a noncitizen is charged with a ground of inadmissibility or deportability, the result may differ because the DHS bears the burden of proof in the deportation context, while the noncitizen bears the burden in the inadmissibility context. 

 

            Example:  A noncitizen is convicted of burglary with intent to commit theft or any felony, and the issue is whether this offense is a crime of moral turpitude.  In deportation proceedings, the noncitizen wins because the government cannot show (a) that the conviction was for burglary with intent to commit theft vs. any other felony, and (b) that the term “any felony” includes only CMT offenses.  In inadmissibility proceedings, the noncitizen loses because s/he cannot prove that the conviction was not for theft, as opposed to any felony.

 

(2)  Minimum-Conduct Analysis.  In the burglary example above, the noncitizen in inadmissibility proceedings was inadmissible because s/he could not prove s/he had not intended to commit theft.  However, s/he was not inadmissible because the “any felony” language included offenses that could be considered crimes of moral turpitude.  Even in inadmissibility proceedings, the noncitizen has the benefit of the minimum conduct rule, which requires that where a statute cannot be further divided,[102] an immigration court must look to the minimum conduct proscribed under the statute to determine whether the noncitizen has been convicted of a crime that triggers a ground of removal.[103]  Because the minimum conduct punishable within the phrase “any felony” is not necessarily a CMT, the immigration court cannot lawfully hold that the noncitizen is inadmissible for conviction of a CMT.

 

(3)  Conduct-Based Grounds.  Because there is generally no statute of conviction involved where a noncitizen is charged under a conduct based ground of inadmissibility based on an admission by the noncitizen,[104] “reason to believe” on the part of the DHS,[105] or some other test, the categorical and divisible statute analysis does not apply.  Counsel should examine what standards are required under the specific conduct-based ground to determine what is necessary to prove or disprove the applicability of that ground to the client.

 

(4)  Fact-Specific Requirements.  The following conviction-based grounds of removal use the normal categorical analysis for the generic portion of the definition, plus allow of the existence of the specific facts by any admissible evidence, even though it is not contained in the record of conviction:

 

(a)  Fraud or Deceit Aggravated Felonies have a requirement that the loss to the victim or victims exceeds $10,000.”[106]  The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction.[107] 

 

(b)  Tax Evasion Aggravated Felonies require a conviction of an offense “described in [26 U.S.C. § 7201] (relating to tax evasion) in which the revenue loss to the government exceeds $10,000.”  The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction.[108] 

 

(c)  Money Laundering Aggravated Felonies require a conviction of a violation of 18 U.S.C. § 1956 or 1957, "if the amount of the funds exceeded $10,000 . . . .”[109]  The italicized portion of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction, because it closely parallels the $10,000 loss requirement that the Supreme Court in Nijhawan held to be a specific fact.

 

(d)  Transporting Persons for Prostitution Aggravated Felonies reqquire a conviction of "an offense that-- . . . (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage . . . ." The italicized language of the definition is a specific fact that need not be an element of the offense of conviction, and may be proven by evidence beyond the record of conviction.[110]  

 

(e)  Domestic Violence Protected Relationship Convictions require proof of a listed relationship between the defendant and the victim.  It is very likely that the courts will in future hold that this protected relationship is a specific fact required for deportation that need not be an element of the offense of conviction, but may be proven by any admissible evidence beyond the record of conviction.[111]

 

(f)  Fact-Based Exceptions to Grounds of Removal.  In Nijhawan, the Supreme Court described certain exceptions to conviction-based grounds of removal as fact-based definitions.[112]  Exceptions meeting this description include:

 

            (i)  Immediate Family Exception to Alien Smuggling Aggravated Felony.[113] 

 

(ii)  Immediate Family Exception to Passport Fraud Aggravated Felony.[114] 

 

(iii)  Political Offense Exception to Crime of Violence Aggravated Felony.[115] 

 

(iv)  Political Offense Exception to Crime of Moral Turpitude Ground of Inadmissibility.[116]

 

(v)  Youthful Offender Exception to Crime of Moral Turpitude Ground of Inadmissibility.[117]

 

(vi)  Petty Offense Exception to Crime of Moral Turpitude Ground of Inadmissibility.[118]

 

(vii)  Political Offense Exception to Multiple Criminal Conviction Ground of Inadmissibility.[119] 

 

            (viii)  Thirty Grams of Marijuana Exception to Controlled Substances Deportation Ground.[120]

 

            (ix)  Single Scheme Exception to Multiple Moral Turpitude Ground of Deportation.[121]

[99] Nijhawan v. Holder, 557 U.S. ___ 129 S.Ct. 2294 (2009).  INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i)(offense involving fraud or deceit with a loss to the victim(s) in excess of $10,000).  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 16.7(E), 19.74 (2007). 

[100] See Criminal Defense of Immigrants § § 16.3-16.8.

[101] See Criminal Defense of Immigrants § § 16.9-16.14.

[102] See Criminal Defense of Immigrants § 16.14.

[103] See Criminal Defense of Immigrants § 16.8

[104] See Criminal Defense of Immigrants § 18.8.

[105] See Criminal Defense of Immigrants § 21.6.

[106] 8 U.S.C. § 1101(a)(43)(M)(i) (emphasis added). 

[107] Nijhawan at 2302.

[108] Nijhawan at 2296.

[109] INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D).

[110] INA § 101(a)(43)(K)(ii), 8 U.S.C. § 1101(a)(43)(K)(ii).  Nijhawan at 2301.

[111] Nijhawan at 2302, citing United States v. Hayes, 555 U.S. ___, 129 S.Ct. 1079, 1087-1088, 172 L.Ed.2d 816 (2009) (reaching similar conclusion for similar reason in respect to a statute referring to crimes involving “domestic violence”).

[112] Nijhawan at 2300.

[113] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N); Nijhawan at 2300-2301; see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 19.25 (2007).

[114] INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P); Nijhawan at 2300-2301; see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 19.54 (2007).

[115] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F); see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 19.50 (2007).

[116] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I); see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 20.31 (2007).

[117] INA § 212(a)(2)(A)(ii)(I), 8 U.S.C. § 1182(a)(2)(A)(ii)(I); see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 20.30 (2007).

[118] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II); see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 20.29 (2007).

[119] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B); see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 18.15 (2007).

[120] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.144 (2005); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i); see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 21.35 (2007).

[121] INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii).  See N. Tooby & J. Rollin, Tooby’s Crimes of Moral Turpitude § 5.14 (2008).