Nearly a year ago, I posted two blogs, this and this, about a case from the Board of Immigration Appeals, Matter of Almanza-Arenas, which reversed precedent in the Ninth Circuit regarding showing eligibility for Cancellation of Removal for Certain Permanent Residents, INA § 240A(a). This Cancellation of Removal, there are two others, allows permanent residents to keep their permanent residence status after committing removable offenses or engaging in conduct that renders one removable. To be eligible, an alien must have at least seven years of residence in the United States after a lawful admission, be a permanent resident for at least five years, and not be an aggravated felon.
Matter of Almanza-Arenas relates to the aggravated felony element of eligibility for Cancellation. Some criminal statutes criminalize more than one thing. These are called divisible statutes. In these statutes, some of these crimes are aggravated felonies and some are not. The Ninth Circuit ruled in 2007 in Sandoval-Lua v. Gonzales, that if the record of conviction – the documents that the criminal court relied on and itself created in making the ruling of guilt – was ambiguous as to whether the crime was an aggravated felony, then the crime was not an aggravated felony. The logic being that there are two states of nature – being an aggravated felon or not being an aggravated felon. If you cannot be shown to be one, then you are not one.
In Matter of Almanza-Arenas, the BIA changed this. In essence, they created a third state of being – possibly being an aggravated felon. According to the BIA formulation, just because you cannot be shown by the conviction documents to be an aggravated felon, this does not mean you are not one. While immigration courts cannot go outside of the record of conviction to find proof of whether someone is an aggravated felony because of rules of analysis, the categorical and modified-categorical approaches the Supreme Court devised in 1990 in Taylor v. United States, this does not mean the person is not an aggravated felon. He or she could be in the third state of nature. Because an alien must show he or she is not an aggravated felon for eligibility for relief, he or she must present evidence to put himself or herself in the “not an aggravated felon” state of nature rather than the “possibly and aggravated felony” state.
An astute reader may wonder, “How can the Board of Immigration Appeals reverse a Court of Appeals?” Answer: the Supreme Court said it can. In a case referred to as Brand X, the Supreme Court allowed administrative agencies to reverse the Court of Appeals when the agency did not rule on an issue in a precedent-setting case before the Court of Appeals made its decision or when intervening law made the Court of Appeals decision obsolete. The BIA argued that changes in the law in 2005, the passage of the REAL ID Act, which the BIA asserted placed a new burden of proof on aliens to prove they were not aggravated felons, made Sandoval-Lua, which though decided in 2007 was based on the legal framework before 2005, obsolete when addressing post-2005 cases.
In the previous article, I explained how the Sandoval-Lua logic was used by aliens and their criminal defense attorneys to fashion guilty pleas that allowed an alien to be eligible for Cancellation of Removal. I explained that some drug crime statutes include both drug selling offenses, which are aggravated felonies, and possession, transporting, and solicitation offenses, which are not aggravated felonies. Commenting on Matter of Almanza-Arenas, I wrote:
It is this strategy that is now in shambles. In a recent Board of Immigration Appeals decision, Matter of Almanza-Arenas, the Board of Immigration Appeals concluded that after changes in the law in 2005, an alien must prove his eligibility for relief. In the example about drug selling, the alien must not only make sure that the conviction documents do not show that he sold drugs, but he must also prove that he did not sell drugs. With the alien bearing this burden, merely keeping evidence of drug selling out of the record of conviction is not enough – the alien must prove he did not sell drugs. This could be a very tall order, especially if the alien actually did sell drugs.
Should this decision stand judicial review, and there is reason to believe that it will not, the strategy of finding ambiguous statutes and keeping the record of conviction clean of damaging facts may still work to ward off deportability, but it will no longer work to preserve eligibility for relief. This is a dramatic negative evolution in the law for aliens facing deportation for crimes.
Well, it did not stand. On January 4, 2011, the Ninth Circuit Court of Appeals issued a decision, Rosas-Castaneda v. Holder reaffirming its Lua-Sandoval decision. It discounted the BIA’s view that the 2005 REAL ID Act changed the burden of proof, asserting that aliens always had to prove their eligibility for relief. Curiously, the Rosas-Castaneda decision did not mention Matter of Almanza-Arenas in the decision. Caution prevents me from speculating why not.
This puts us back to where we were under Sandoval-Lua. The ramifications of this are important outside of the arena of how to plea to an offense to remain eligible for Cancellation of Removal. For example, to naturalize – become a United States citizen – an alien must show good moral character. Under INA § 101(f)(8), a person who is convicted of an aggravated felony (on or after October 29, 1990) cannot show good moral character. If someone has an ambiguous conviction, applying Matter of Almanza-Arenas‘s logic, aliens would have to prove they are not aggravated felons. Applying Rosas-Castaneda, all they have to show is that they are not necessarily aggravated felons based on the record of conviction alone.
This case also may be foreshadow the demise of another precedent decision, Matter of Silva-Trevino. In this case, the Attorney General vacated a BIA decision about whether a crime an alien committed was a crime of moral turpitude and constructed a new framework for evaluating whether a crime is a crime of moral turpitude. To make this evaluation, an immigration judge is commanded to look outside of the record of conviction to determine what the alien actually did if the record of conviction is ambiguous. This is contrary to precedent in the Ninth Circuit. The abandonment of the categorical and modified categorical approaches was based on the fact that aliens do not plead guilty to “crimes of moral turpitude,” and so the immigration court needs to look beyond the record of conviction to find out what happened. Of course, people do not plead guilty to “aggravated felonies” either, but, after Rosas-Castaneda it is unambiguously clear that immigration courts are restricted to the record of conviction in determining the actual conduct. We will have to see what the Ninth Circuit has to say about whether what is good for aggravated felonies is good for crimes of moral turpitude. Published January 9, 2011.