It has finally happened. The Ninth Circuit ruled in the case of Almanza-Arenas v. Holder. The case at the Ninth Circuit was on review from the Board of Immigration Appeals. It stood for the proposition that when a record of conviction is ambiguous as to whether a crime makes one ineligible for relief, then the person seeking relief fails to meet the burden of eligibility, which is on the applicant, and therefore cannot be granted the relief. The issue arises mostly in considering whether a crime is a crime of moral turpitude or an aggravated felony, classes of crimes that disqualify aliens from many forms of relief. The Ninth Circuit reversed the BIA. Assuming the government does not seek re-hearing in Almanza-Arenas and assuming the BIA adopts it nationwide, the five year experiment in reading facts from outside of the record of conviction to determine conduct has come to the end with a victory for not reading outside of the record.
It has been a long ride to get to this day. I have discussed it many times, including here. A lot of decisions got us here, including two last year at the Supreme Court, Moncrieffe v. Holder and Descamps v. United States. We had to absorb concepts like categorical versus modified categorical approaches, missing element cases, and divisible element statutes versus indivisible element statutes with multiple means as discussed here. We have yet to have such a case yet, but I have already seen in practice analyses of a divisible statute where the elements of the divisible crime have multiple means and missing elements.
This was not a right wing anti-immigrant versus left wing pro-immigrant struggle. Many on the right abhorred that immigration courts had to make findings about criminal cases that were not what a person admitted as a basis for the conviction or a jury found to render a guilty verdict. Some on the left abhorred that people who did bad things to the defenseless would get off on technicalities. The real split was not left-right, but rather those that adhered to the principle that the only trial about a crime should be the criminal trial and not the immigration court trial, versus those that found detestable that people who everyone knew did bad things could avoid the consequences of them. An adult could avoid the consequences of engaging in sexual conduct with a child by pleading to a charge that avoided age. A person stealing from a store could avoid responsibility for theft by pleading to burglary. A person could avoid the consequences of a firearm offense because the statute of conviction included violations involving antique weapons, even though the conviction was not based on an antique.
What to me particularly commends the approach that immigration courts should not retry criminal cases is the large number of cases in which I have been involved where the immigration judge got it wrong, finding an aggravated felony or a crime of moral turpitude was committed without sound basis. Immigration judges would rely on police reports where witness or victim statements contradicted what the perpetrator said. Immigration judges would read turpitude into outside-of-the-record conduct that was not a basis for the conviction. The days of such fanciful judicial imagination hopefully are behind us. This does not mean aliens will be going scot free en masse. Firstly, even if a crime is not an aggravated felony or morally turpitudinous, it can still be a deportable offense. Relief is discretionary and judges can look outside of the record of conviction to consider discretion. As Justice Sotomayor wrote in Moncrieffe:
… having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug cartels,” just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Nation’s borders, it is a limited one.
I, for one, hope that all this analysis of what is not in the record of conviction as opposed to what is is behind us. There is a ton of stuff to fight about in immigration law interpretation so it is not like practitioners will have nothing to do now. Posted November 11, 2014.