I have written previously about how the Board of Immigration Appeals, the courts of appeal, and the Supreme Court have been struggling over how to determine whether an individual’s crime is a crime or moral turpitude or an aggravated felony. I wrote three years ago about the 9th Circuit Court of Appeals’ en banc adventure in creating a missing element rule in trying to determine if a particular crime was a crime of moral turpitude or an aggravated felony in U.S. v. Aguila-Montes de Oca. A little more than a year ago I wrote about how the Supreme Court overturned that decision in Descamps v. United States. I noted that there was still one issue still hot and unresolved in the area of determining how to characterize a conviction. This is the issue of whether an indeterminant record of conviction as to whether a person was convicted of an aggravated felony or a crime of moral turpitude can meet his burden of proving his eligibility for certain relief from being deported if those forms of relief require that one not be an aggravated felon or someone who committed a crime of moral turpitude. The BIA in Matter of Almanza-Arenas, and the Ninth Circuit Court of Appeals in Young v. Holder have said that a person cannot meet the burden when the conviction documents are indeterminant.
I wrote about how the Supreme Court, in Moncrieffe v. Holder, shook the foundation of Matter of Almanza-Arenas and Young v. Holder, but the decisions still stand. Last week, the 9th Circuit limited the impact of these cases in its decision in Rendon v. Holder. In Rendon v. Holder, the Court of Appeals explained that a person can only be found to have been convicted of the elements of a crime that specifically must have been found by the fact finder. The Court distinguished between divisible statutes, where a defendant is convicted of a crime defined by a distinct set of elements but other crimes with unique elements are bunched in the same statute, and a crime where any of a broad range of elements, of which the fact finders do not need to agree or which do not need to be specifically ascertained, result in a conviction. In such a case of “divisible elements,” one cannot be said to have been convicted of a crime defined by one of the divisible elements if it is possible to be convicted by another in the set of divisible elements. Specifically addressing Young v. Holder, the Rendon court wrote:
Young held that, when a court applies the modified categorical approach, a petitioner cannot demonstrate eligibility for cancellation of removal on an inconclusive record because, in such a case, it is both “possible that Petitioner’s prior conviction constitutes an aggravated felony” and “possible that it does not.” . That is because the modified categorical approach allows a court reviewing a prior conviction under a divisible statute to determine which of “several different . . . crimes” was at issue.  In contrast, a defendant convicted of an indivisible statute has necessarily committed the one crime at issue, and that crime is either a match to the federal, generic crime, or it is not. The record is never inconclusive. Thus, if the petitioner establishes that the statute under which he was convicted is indivisible and punishes a broader range of conduct than the federal, generic crime, it is never possible for that conviction to qualify as an aggravated felony, and the petitioner has met his burden.
Rendon “clarifies” what is meant by ambiguity or indeterminantness in a conviction. It remains to be seen if the full court will allow for this weakening of Young or if it will hear Young en banc. Or, will the 9th Circuit finally rule on Matter of Almaza-Arenas, which has been pending before it since December 2010. Posted August 27, 2014.