quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 2. Under Matter of Silva-Trevino, currently the categorical approach does not fully apply to crimes involving moral turpitude In a controversial opinion outgoing Attorney General Mukasey abruptly overturned 100 years of caselaw and held that the categorical approach does not strictly apply in determining whether an offense is a crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). As opposed to the more measured approach in Nijhawan, supra, the opinion in Silva-Trevino is broadly worded and self-contradictory, and it has made it difficult to predict what will or won’t be held to be a crime involving moral turpitude. To make matters more unpredictable, the Ninth Circuit en banc held that it will defer to the BIA when the Board issues a reasonable, published decision finding that a particular offense involves moral turpitude. Marmolejo-Campos v. Holder, 558 F.3d 903 (9 th Cir. 2009) (en banc). This decision means that prior Ninth Circuit decisions holding that certain offenses are not crimes involving moral turpitude may no longer apply. The hard truth is that criminal defense counsel cannot promise their clients that a particular offense will not be held to be a crime involving moral turpitude (CMT). Counsel should not rely on past case law in general, or on charts that have not been updated, to determine whether an offense will be a CMT. The exception might be where an offense is clearly divisible and counsel pleads specifically to the section that does not involve moral turpitude. For example, a plea to taking a car with intent to temporarily deprive the owner under Calif. Veh. C. § 10851 should not be held to be a CMT. The written plea bargain should trump any other evidence. A plea to an offense that involves only negligence should not be held to be a CMT. Note that in Marmolejo-Campos the Ninth Circuit did not decide whether it will accept the radical evidentiary holding in Silva-Trevino, which is that the categorical approach no longer applies to moral turpitude determinations. The decision concerned the BIA’s substantive determinations about whether an offense involves moral turpitude. The Third Circuit has rejected Silva-Trevino, and the Ninth Circuit has not ruled on it. For further discussion, see § N. 7 Crimes Involving Moral Turpitude, and see Tooby, Kesselbrenner, ““Living Under Matter of Silva-Trevino” at www.nortontooby.com. C. Under the Modified Categorical Approach, What Documents Can the Immigration Judge Consult to Determine the Elements of the Offense of Conviction? 1. Overview This discussion will focus on what evidence may be used under the modified categorical approach. (As stated in B.4 above, in two areas the government can depart from this approach.) An immigration authority who reviews a prior conviction under a divisible statute is guided by the “modified categorical approach.” This approach permits the authority to review only a limited number of documents to identify the elements of the offense of conviction. By N-42 Immigrant Legal Resource Center
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