quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
B. When Does the Categorical Approach Not Apply to Analysis of a Conviction? Moral
Turpitude and “Circumstance Specific” Offenses
Currently the modified categorical approach does not apply in two important situations.
In each situation, the law is still developing and it is not possible to predict all results.
1. The categorical approach does not fully apply to immigration provisions with
“circumstance-specific” factors, including the aggravated felony “fraud or deceit
offense with a loss exceeding $10,000,” and perhaps a deportable “crime of
domestic violence.”
In Nijhawan v. Holder, 129 S.Ct. 2294 (2009) the Supreme Court held that for purposes
of deciding whether a conviction is an aggravated felony, in some cases the categorical approach
does not fully apply. The Court considered the aggravated felony defined as a crime of “fraud or
deceit” in which the loss to the victim/s exceeded $10,000. 8 USC § 1101(a)(43)(M)(ii). 60 The
Court found that “fraud” and “deceit” are “generic crimes,” and the categorical approach must be
used to determine whether the offense of conviction constitutes these offenses. It found that the
loss exceeding $10,000, however, is “circumstance-specific,” meaning that it has to do with the
circumstances of the particular incident of fraud or deceit. The Court stated that the strict
limitations of the categorical approach need not apply to establish the $10,000 loss.
It is not clear at this time exactly what evidence the government may use to define the
$10,000 loss. The best strategy may be to nail down the aspect of the offense that is subject to
the limits of the categorical approach, by pleading to an offense that does not constitute “fraud or
deceit.” Where possible, if there was a loss exceeding $10,000 counsel should attempt to plead
to theft under P.C. § 484 (not theft by fraud) and avoid a sentence of one year or more. See
further instructions and discussion at §N.13 Burglary, Theft, and Fraud.
Nijhawan did not mention the domestic violence deportation ground, and did not apply
its new “generic versus circumstance-specific” approach to that or any deportation ground apart
from aggravated felonies. However, the government is likely to argue that the same bifurcated
approach should be used there: while a “crime of violence” is a generic crime that is subject to
the categorical approach, the domestic relationship is circumstance-specific and can be proved
by additional evidence.
Again, a good strategy is to obtain a plea to an offense that is not a crime of violence,
because in that case the categorical approach applies and counsel can control the situation by
controlling the record of conviction. See further discussion of defense strategies at §N.12
Domestic Violence.
FOR FURTHER DISCUSSION see Brady, “Nijhawan v. Holder: Preliminary Analysis” at
www.ilrc.org/criminal.php.
60 8 USC § 1101(a)(43)(M)(ii), INA § 101(a)(43)(M)(ii).
Immigrant Legal Resource Center N-41