Last week I pointed out that a BIA decision has disrupted the calculations non-citizen criminal defendants make when considering pleading guilty to a crime to enable them to either keep or to seek lawful immigration status. The case, Matter of Almanza-Arenas, 24 I. & N. Dec. 771(BIA 2009), held that in removal cases commenced after the passage of the REAL ID act in 2005, the alien must prove that he or she is eligible for relief from removal. Depending on the relief statute, this may include proving that he or she is not an aggravated felon or, in some cases, not having been convicted of a crime of moral turpitude, or in other cases, other things. In a case where it is ambiguous what the alien was convicted of, the alien must prove his crime is not an aggravated felon, a crime of moral turpitude, or whatever else the alien cannot have been convicted of. In Sandoval-Lua v.Gonzales, 499 F.3d 1121, 1129-30 (9th Cir. 2007), regarding the issue of being an aggaravated felon, the Court of Appeals held that if the conviction documents do not prove that the person is an aggravated felon, then the person cannot be said to have been convicted of an aggravated felony and thus can seek relief where being an aggravated felon would otherwise eliminate them from eligibility. The BIA distinguished the case by saying that the REAL ID imposed a burden of proof on the alien that supercedes the holding in Sandoval-Lua v.Gonzales.
Immigration lawyers are now in a quandary. Can we advise clients to plead guilty to crimes where the conviction documents are ambiguous, hoping that eventually the Ninth Circuit Court of Appeals will overturn Matter of Almanza-Arenas, or must we advise aliens to reject such a plea bargain and go to trial – risking a more severe punishment, or try to plead to something else and face a harsher sentence?
This week the Court of Appeals considered the issue again – this time relating to murky conviction documents relating to whether an alien was convicted of a drug crime. By this time the Court of Appeals should be aware of Sandoval-Lua and the tension between the Court of Appeals holding in Sandoval-Lua and the BIA holding in Matter of Almaza-Arenas. The decision in the case, Esquivel-Garcia v. Holder, No. 07-70640 (9th Cir. January 28, 2010), did not address the issue at all. In the decision which reiterated the holding in Sandoval-Lua, the court noted that the case was in immigration court in 2004, and thus is a pre-REAL ID case. Thus, immigration judges most likely will not follow Sandoval-Lua or Esquivel-Garcia because neither case addresses a case commenced after the passage of the REAL ID Act and the Court of Appeals did not address the affect of the REAL ID Act. It is a shame that the Ninth Circuit Court of Appeals did not address REAL ID or at least provide language that would show that the logic of Sandoval-Lua prevails over the logic of Matter of Almanza-Arenas.
Posted January 31, 2010.