Interpreting the impact of convictions on removal getting a whole lot simpler.

Sunday, June 23rd, 2013
By: Jonathan MontagJ.D.

It was getting real complicated there for a while. There was a time when it was not that hard to figure out if someone was removable for a crime. Let’s start with the basics. Non-citizens of the United States who commit crimes can be deported for them.  Consider a non-citizen, called an alien under immigration laws, who committed a crime. We’ll call him a Criminal Alien, or CA. CA is convicted of murder. When he is done with his prison time, Immigration and Customs Enforcement takes him from the prison where he served his sentence and brings him to an immigration detention facility and charges him with removability for having committed murder, a removable offense. See INA § 101(a)(43)(A). ICE then brings him to an immigration judge. The immigration judge verifies that he indeed was convicted of murder by looking at the “conviction records.” If indeed he was convicted of murder, the judge then inquires if he is eligible for relief – some way of being forgiven for the crime or getting a new status despite the crime. As murder is a crime that precludes getting nearly all relief, the man is removed. Finished. Next case.

Unfortunately, things started getting more complicated. There are removable offense that require showing that a fraud was committed and that the loss to the victim was more than $10,000, INA § 101(a)(43)(M)(i), that there was tax evasion with a loss of more than $10,000, INA § 101(a)(43)(M)(ii), and that more than $10,000 was money laundered. INA § 101(a)(43)(D). [Dear Congress, making removal statutes with money amounts do not keep up with inflation. One day defrauding someone out of a couple of loaves of bread could amount to $10,000.]  ICE brings CA to an immigration court and the judge looks at the conviction record for fraud, tax evasion, or money laundering and says, “Hey, I see CA was convicted of fraud, but I don’t see that he was convicted of $10,000 worth of fraud from the conviction documents. There may be proof elsewhere, but I am just allowed to look at conviction documents. Otherwise, I have to put on a new trial to figure out what the loss was and that would not be fair to me or to CA, who might not be able to find the witnesses from when he committed the crime, which could be years earlier. The judge determines that ICE cannot show the loss element of the crime, and lets CA free.

Such was the ruling of the Ninth Circuit. In the Third Circuit, however, another view emerged in the case, Nijhawan v. Attorney General of the United States.  The court decided that the $10,000 loss part of a fraud was not actually a part of the conviction that needed to be proved by conviction documents. In legal jargon, it was not an element of the deportable offense that needed to be proved. Rather, it was descriptive of the removable offense and could be proved by evidence outside of the conviction documents. There is a practical reason for this. Fraud statutes, tax evasion statutes, and money laundering statutes do not ordinarily have amount of loss elements build into them as elements. Thus, aliens like CA would nearly never be found deportable unless the loss amount was removed as an element to be proved by conviction documents. The Supreme Court agreed in its decision in Nijhawan v. Holder.

We now enter the realm of looking outside of the conviction documents. The next big step is taken by the Attorney General, in this case former Attorney General Michael Mukasey. He was grappling with another removability statute, rendering aliens removable for committing crimes of moral turpitude. Courts wrestle a lot with the question of what a crime of moral turpitude is. Attorney General Mukasey defined it as a crime where there is “both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness” in his decision, Matter of Silva-Trevino. The new definition of a crime of moral turpitude was not the big deal in Matter of Silva-Trevino. Rather, Mr. Mukasey decided that just like the loss to the victim is not an element in fraud offenses, moral turpitude is not an element in any crime. Thus, immigration judges should be able to look outside of the conviction documents to determine if a crime is a crime of moral turpitude.

This was a watershed moment. Now immigration judges were conducting mini-hearings to determine if a crime was a crime of moral turpitude. CA is convicted of disturbing the peace. The conviction document says, “CA disturbed the peace.”  How did he do it? Did he cheer too loud with the window to his home open when his team won? Did he release toxic fumes from his window and cause the evacuation of his neighborhood? Was what he did rather benign and common place – like a bar fight – or was it more egregious, like beating his child? Because moral turpitude is not an element, immigration judges can look at police reports and other non-evidence and hear witness testimony to figure out what happened. I have blogged and written articles, here, about the case as have many, many others. Whole seminars were built around it.

Last month the Ninth Circuit overturned it in Olivas-Motta v. Holder, concluding that for all the reasons it is unfair to compel mini-trials for old cases and because moral turpitude elements can be found in criminal statutes, immigration courts cannot look outside of the record of conviction to figure out if a crime is a crime of moral turpitude.  All that thinking and writing and advising on Silva-Trevino, forget it.

This was not the only complication. The Ninth Circuit, over the past few years, addressed another issue – what happens when CA commits a crime where there is an element in the crime that differs in degree from a removal statute or an element is missing. The Ninth Circuit allowed for courts to find missing elements or prune overbroad elements in a case, U.S. v. Aguila-Montes de Oca. I wrote about the details of the problem the Aguila-Montes de Oca was addressing here. I also wrote about how the Court of Appeals itself has resisted a broad application of the case here.

For those of you, judges and practitioners both, who have been struggling to understand the implications of Aguila-Montes de Oca and how to apply it, forget about it. No need. The idea of finding that an alien like CA meets the elements of a removal statute when an element is missing or overbroad, forget about it. This week, 8 to 1, the Supreme Court overturned Aguila-Montes de Oca in Descamps v. United States.   The case dealt with whether a person should get an enhanced sentence because he had previously been convicted of burglary under the California burglary statute, Cal. Penal Code § 459.  The usual burglary statute requires illegally entering certain places to commit a crime. The California law does not require that the entry be illegal. It just requires the intent to commit a crime. Thus, in California, a person can be convicted of burglary for entering a bank (legally, through the front door when the bank is open for business) to try to cash a forged check. To get the sentencing enhancement, the crime needed to be like the usual statute, where the entry was illegal. The California statute can be considered overbroad, as it includes illegal and legal entries, or you might consider it a missing element case with the element of the nature of the entry missing.  It turned out, Mr. Descamps admitted that he broke into the grocery store he stole from – rather than a shoplifter who enters legally. He was given the sentencing enhancement even though his crime did not have an element of illegal entry because when he pled guilty, he admitted to an illegal entry. The Supreme Court held that such inquiry is impermissible because it could require the unfair mini-trial that the Supreme Court has found unacceptable in a long line of cases from 1990 until now discussed in Descamps.

The last area of complication is about burdens of proof in removal cases. As mentioned above, after a person is found removable, an immigration judge then considers whatever relief is available.  Having been convicted of certain crimes precludes the availability of relief. For example, an alien convicted of an aggravated felony cannot seek Cancellation of Removal (INA § 240A(a)) or asylum.

Let’s say CA is convicted of a drug crime that involves distributing marijuana. Ordinarily drug distribution is an aggravated felony. However, there is an exception under federal criminal law for distributing a small amount without being paid – commonly referred to as sharing. A convicted sharer is not an aggravated felon. It is not clear whether CA was a dealer or a sharer. The Supreme Court said in a recent case, Moncrieffe v. Holder  that when a statute does not differentiate between sellers and sharers, the crime is not an aggravated felony. In cases where the statute does differentiate, only if the conviction documents show that CA was a seller, will be be considered an aggravated felon. The reason for this decision, again, is to avoid the the unfair mini-trials that the Supreme Court has repeatedly found unacceptable.

This leaves one complicated issue left. I addressed it earlier in an analysis of Moncrieffe, here. When a person seeks relief, he has the burden of proof in showing eligibility for it. What happens when an alien is convicted of a drug distribution statute and it is ambigious from the conviction documents whether he is a seller or a sharer? Your are thinking, hey wait, we already concluded that he is then not deportable as an aggravated felon, so what’s the problem? The problem is that CA may not be deportable as an aggravated felon, but he is deportable for having committed a controlled substance violation. CA will need to apply for Cancellation of Removal relief. If he is an aggravated felon, he is ineligible. The issue is, if the government cannot prove CA is an aggravated felon, does that mean that he is not one? CA must prove he is not one. If the record of conviction is ambiguous, CA cannot meet his burden and he consequently cannot seek relief. If outside evidence is helpful to him, he might meet his burden. If outside evidence hurts him – a police report showing that he was not sharing, but rather selling, he cannot meet his burden. Such was a decision of the Board of Immigration Appeals in Matter of Almanza-Arenas. This case too, I have written about plenty, such as here. Courts have been going back and forth on this since 2007. The Ninth Circuit rejected the notion that an ambiguous record means failure to meet the burden of proof in Sandoval-Lua v. Gonzales, then the BIA “overturned” the Ninth Circuit in Matter of Almanza-Arenas (though the BIA said it was not “overruling” it, just “distinguishing” it). Then the 9th Circuit reversed the BIA in 2011 in Rosas-Castaneda v. Holder.  And then, the Ninth Circuit reversed itself , en banc, in Young v. Holder. The 9th Circuit thrust CA back to having to put on a mini-trial to prove eligibility for relief, rather than relying on the conviction documents to resolve all matters relating to the affect of the conviction on both removability and eligibility for relief.

Applying this reasoning to Mr. Moncrieffe, while he had a big victory in the Supreme Court holding that he was not deportable as an aggravated felon, he is still deportable as a controlled substance violator, and if he cannot prove he was a sharer rather than a seller, he will be ineligible for Cancellation of Removal relief becaue he cannot prove he is not an aggravated felon.

The popular wisdom is that with the recent decisions in Moncrieffe and Descamps championing that looking outside the record of conviction to figure out whether a person is removable or subject to an enhanced sentence is virtually taboo, the expectation is that if the case of placing the burden of proof on CA to provide evidence outside of the record of conviction and sinking CA on an ambiguous record gets to the Supreme Court, the Supreme Court will reverse Young and similar cases. Interestingly Matter of Almanza-Arenas, the BIA case, is at the Ninth Circuit. The question is whether after seeing the handwriting on the wall in Moncrieffe and Descamps, the Ninth Circuit will go en banc and reverse Young (after it first decides the case based on Young, but then votes to go en banc), or will it stick with its en banc Young holding and face reversal in the Supreme Court. Listening to the oral argument in Almanza-Arenas, all appearances are that the Ninth Circuit will try to fix Young and eliminate the last complication that has arisen in the past few years in interpreting the immigration consequences of criminal convictions.

If you are brand new to immigration law and none of his makes sense. Don’t worry. You don’t need to know this. It’s like it never happened. It was a dream and you just woke up sleeping next to Emily Hartley. Posted June 23, 2013.


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