New test in missing element cases is not changing the results – so far.

Sunday, November 4th, 2012
By: Jonathan MontagJ.D.

In immigration law, there are certain crimes an alien can be convicted of that can lead to removal. The immigration statutes, found in the Immigration and Nationality Act, do not list the state crimes and usually not the federal crimes that lead to removal. Rather, the Immigration and Nationality Act names certain types of crimes – such as a “crime of moral turpitude,” or a “theft offense,” or a “crime of violence,” or “sexual abuse of a minor,” or “domestic violence,” and on and on. Before a person can be determined to be removable, the courts must hold that the crime itself is a removable crime, i.e., that the state or federal statute meets a federal definition of a crime of moral turpitude, or a theft offense, or a crime of violence, or whatever. This can be very problematic when a criminal statute includes more crimes than the removal offense, usually referred as a divisible criminal statute, or the removability offense has more elements than the criminal statute violated, a missing element case, or the criminal statute has similar but less restrictive elements to the deportable offense, referred to as a broader element case. An example of a broader element case is when a criminal statute criminalizes possessing pornography while the deportation statute imposes deportation as a penalty for possessing child pornography. In actuality, there is little difference between a broader element and a missing element case. In the example of child pornography, above, the issue is actually that the state statute lacks the “child porn” element.

Courts employ a certain methodology of analysis in these type of cases. First, they look at the criminal statute and the federal definition. If to be convicted of the criminal offense one must have met all the elements of the removal statute, then the person is deportable. This is called the categorical approach. Once the definition of the removal offense is clarified by establishing a federal definition of a crime of violence or sexual abuse of a minor, cases like this are not the ones that occupy judges time. When a crime is a divisible one, i.e., one that contains more crimes than the removal offense, then a cout must determine exactly what the alien was convicted of. If a crime, for example, has as its definition, using force or violence, and the removal offense requires using violence (and not force), then if an alien is convicted of the offense, a court must determine whether the alien was convicted for using force or using violence. This is called the modified categorical approach. Courts have concluded that to make this analysis, courts can look at a limited set of conviction documents to determine what the alien was actually convicted of. These include the charging documents in the criminal case, the guilty plea documents if the person pled guilty, the discussion the alien had with the judge when he pled guilty, and the documents the court produced memorializing the guilty plea. They do not include statements of the alien or police reports, for example. There are some exceptions. For example, in Matter of Silva-Trevino, the attorney general gave himself the authority to look outside of the conviction record to determine whether a crime was a crime of moral turpitide when the crime is potentially a crime of moral turpitude, meaning the elements of a crime of moral turpitude are found in the statute, even if other crimes that are not crimes of moral turpitude are found in the statute, and  the record of conviction is not clear as to what the alien actually did. These types of crimes occupy judges time.

The removability of an alien whose conviction fits the two other scenarios – the overbroad scenario and the closely related missing element scenario – usually could not be determined to be deportable under the modified categorical approach, and thus most often aliens who committed these type of crimes avoided being found to be deportable. To  some jurists, this was a troubling phenomenon, as I discussed here. I discussed that to resolve this problem, the Ninth Circuit introduced new tests for these scenarios in US v. Aguila-Montes de Oca. The Ninth Circuit now allows the new court to look at the judicially noticeable documents, i.e., the conviction documents, to determine:

(1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find) and

(2) whether these facts satisfy the elements of the federal definition of the offense.

There is hostility to these extra tests principally because they allow the courts to examine not what the alien was actually convicted of, but what the alien actually did. What is wrong with that? The fear is that this would necessitate an immigration judge conducting a mini-trial about the old crime, which would be unecessarily burdensome to the court and unfair to the alien who already underwent a criminal process for the crime and which may have occurred long in the past. Also, by definition, in most cases a person is removable, according to the deportation statutes, for what he was convicted of, not what he actually did. These objections are laid out in a lengthy concurrence in  Aguila-Montes de Oca signed by five judges out of the eleven who decided the case.

The court broke down this way. Those in favor of a new test for overbroad and missing element cases were judges Judge Bybee, Rymer, Silverman, Gould, Rawlinson and Callahan. Judge Bybee wrote the decision. Those opposed to the new tests were Judges Berzon, Kozinski, W. Fletcher, M. Smith and N.R. Smith. With such fundamental disagreement, one was left wondering how the court as a whole would deal with the new analysis required by Aguila-Montes de Oca.

Two cases have been published since Aguila-Montes de Oca, Aguilar-Turcios v. Holder,  and Sanchez-Avalos v. Holder. Both have frustrated the hopes of those that expected that Aguila-Montes de Oca would herald a more pragmatic and less legalistic approach to determining what an alien was convicted of. In Aguilar-Turcos v. Holder, a Marine was court marialled for violating a general order by looking at pornography on a work computer, which the immigration court and BIA decided was an aggravated felony, and for bringing discredit upon the armed forces, which the government did not argue and the immigration judge and BIA did find was an aggravated felony. The government alleged that Mr. Aguilar-Turcos looked at child porn and thus he was deportable as an aggravated felon for a conviction related to child pornography. Essentially, the Aguilar-Turcos court held that Mr. Aguilar-Turcos did not admit to possessing child pornography when he violated the general order and the only evidence of possessing child pornography  related to the “discrediting the armed forces” charge, and the court would not use facts admitted in one count to find a person was an aggravated felon in another count. Besides, the court found that Mr. Aguilar-Turcos’s admissions of what he possessed was not co-extensive with the federal definition of child pornography, nor was his admission of how he possessed it – looked at it six times – co-extensive with the federal definition of possessing child porn.

In Sanchez-Avalos the alien was convicted of sexual battery – non-age specific. Because the victim was a minor, the government sought removal based on Mr. Sanchez-Avalos having committed sexual abuse of a minor. In the information charging Mr. Sanchez-Avalos was the birthdate of the victim, which showed that she was a minor of 13 years old. The Sanchez-Avalos court concluded that because the court can look only at facts in the conviction documents necessary for the conviction and the victim’s age was not necessary, the conviction could not be found to be sexual abuse of a minor.

In both cases, Judge Bybee wrote dissents trying, vainly, so far, to convince panels that it is applying the new Aguila-Monte de Oca tests too restictively. It appears that Judge Bybee had hoped that the new test would provide a common-sense approach to determining what the alien actually did in determining what he was convicted of. Other judges have erected a roadblock. They are insisting that the principle is inviolate that it is not what the alien did that matter, but what he was convicted of, that matters, and the facts that can be considered are not any facts in the record of conviction, but those facts that are necessary for the conviction.  If those who favored the new tests in Aguila-Monte de Oca had hoped to see a less legalistic approach of analysis, they, for now, must be sorely disappointed. Their folly, it seems, is expecting circuit court judges not to take a legalistic approach to studying an issue. That would be like expecting a French pastry chef to take a non-butter approach to baking. For now, it is not happening. Posted November 4, 2012



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