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Category: Categorical Analysis

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Reviewing Attorney General's decision in Matter of Silva-Trevino, the Fifth Circuit joined the Ninth Circuit and three other circuits to reject the new procedure announced in that case whereby an immigration adjudicator can go beyond the record of conviction to evaluate whether a noncitizen is inadmissible for a crime involving moral turpitude.

The Fifth Circuit found the statutory text of INA 212(a)(2)(A)(i) was unambiguous and thus foreclosed the Attorney General's interpretation. The text makes inadmissible an alien "convicted of" or who admits to a crime involving moral turpitude (CIMT). Here, Silva-Trevino had not admitted to a CIMT. Thus, the question was whether evidence outside the record of conviction could be used to establish that he was convicted of such a crime. The court said no, tracking the analysis of the Ninth Circuit's decision in Olivas-Motta v. Holder-.

The only questionable part of the Fifth Circuit's decision in Silva-Trevino and the Ninth Circuit's decision in Olivas-Motta is the reference to INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B). That section lists the documents can be used to prove the existence of a conviction, and both Silva-Trevino and Olivas-Motta cite it to suggest that documents not listed there cannot be used to prove a conviction involved moral turpitude. The reverse implication is that all of the documents in that list can be used to prove the offense involved turpitude. The list contains court records, jail records, state criminal histories, etc. The use of those documents to establish the existence of a conviction is not controversial--that is what the statute permits (and that is all that it permits). The unlimited use of those documents to prove the nature of the conviction, however, would create a problem. Some of those documents contain extraneous information that the defendant did not admit and the judge or jury did not find. And the Supreme Court twice last term emphasized that the categorical analysis concerns only those elements that a defendant necessarily was convicted of. The unconsidered citation to 8 U.S.C. 1229a(c)(3)(B) suggests otherwise.

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Following the Supreme Court's decision in Descamps, the Ninth Circuit adhered to its original decision in this case (despite the frolic occasioned by Aguila-Montes de Oca). It held that a court may only examine the elements of a conviction to determine whether the conviction satisfies the requirements of a federal definition. Further, a reviewing court may look to the contents of a record of conviction only when necessary to identify which of multiple alternative elements the defendant was convicted of (and then only if at least one alternative would satisfy the federal definition).

Here, the court found the immigrant's conviction under the Uniform Code of Military Justice for using a government computer to access pornography did not include as an element the depiction of a minor engaging in sexually explicit conduct (because the order he violated prohibited accessing any type of pornography), so the conviction did not satisfy the aggravated felony definition of conviction of a child pornography offense. Nor could the government resort to the record of conviction because the statute of conviction was not divisible into multiple alternative elements--the element of the depiction of a minor engaging in sexually explicit conduct was entirely missing from the offense.

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This case began with a permanent resident's conviction for violating California Vehicle Code section 10851(a) and went all the way up to the Supreme Court. The Supreme Court vacated the Ninth Circuit's previous decision that aiding and abetting does not come within the generic definition of theft for aggravated felony purposes. It held it does. On remand, the Ninth decided the two remaining issues in the case.

First, the Ninth held the modified categorical approach permits use of facts alleged in a charging document if the government also submits an abstract of judgment or minute order that specifies the noncitizen pled to the count that contains those facts. (To be more precise, the court should have held that "elements" alleged in the charging document may be used.) Thus, it rejected the noncitizen's argument that the reviewable documents did not specify whether he was convicted of taking or driving or the non-theft offense of accessory after the fact, which VC 10851(a) also penalizes.

Second, the court rejected the noncitizen's argument that the aggravated felony theft definition requires intent to permanently deprive. Intent to temporarily deprive also satisfies the definition under Board and Ninth Circuit precedent.

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In the first of two decisions this week applying the Supreme Court’s decision in Descamps v. United States, the Ninth Circuit held that the petitioner’s conviction for aggravated criminal sexual abuse under Illinois law was not a crime of violence for purposes of an enhancement under the federal sentencing guidelines.

The petitioner was convicted under an Illinois law penalizing sexual conduct with a victim “who was at least 13 years of age but under 17 years of age” and at least five years younger than the perpetrator. In seeking an enhancement of the petitioner’s subsequent sentence for illegal reentry, the government asserted that his conviction was a crime of violence because it qualified as a “forcible sex offense”; the sentencing judge agreed.

The Ninth Circuit reversed. The court held that, even assuming sex offenses involving minors are inherently forcible, the Illinois statute under which the petitioner was convicted was not a categorical match with the generic federal definition of a “forcible sex offense” because the Illinois statute includes as minors persons up to 17 years old whereas the federal definition of a minor is someone under 16. The court next held that the age element in the Illinois statute is not divisible because it is stated as a range—“at least 13 years of age but under 17 years of age”—and not as a list of alternative elements, as required to be categorized as a divisible statute under Descamps. Having found that the statute is not divisible, the court held that it was constrained by Descamps from applying the modified categorical approach. The petitioner’s conviction therefore did not qualify as a crime of violence for purposes of the enhancement, regardless whether he did in fact commit a forcible sex offense in its generic form.

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In this long-awaited decision, the Ninth Circuit joined the Third, Fourth, and Eleventh Circuits in rejecting the Attorney General’s decision in Matter of Silva Trevino. In Silva Trevino, then-AG Alberto Gonzales outlined a procedure by which IJs were no longer constrained by the categorical and modified categorical approaches and instead could look to evidence outside the record of conviction when determining whether an individual was inadmissible or removable for a crime of moral turpitude (CIMT).

The Ninth Circuit held that the relevant provisions of the INA at issue in Silva Trevino are not ambiguous and that the court therefore does not owe any deference to that decision. First, the court held that, although the term CIMT is “famously ambiguous,” there is nothing about the substantive definition that permits an IJ to use a different procedure than the one used for other crimes (ie the categorical and modified categorical approaches). Second, the court held that Silva Trevino created an erroneous definition of “convicted of” that would allow an IJ to consider crimes the alien may have committed but of which he was not convicted, conflicting with long-established precedent. Third, the court held that the AG was incorrect in finding that “moral turpitude” is not “an element” of a CIMT. Applying the Supreme Court’s analysis in Nijhawan, the court held that a CIMT is a generic crime “whose description is complete unto itself” and that “involving moral turpitude” is an element of the crime, not a descriptive circumstance of a separately defined crime.

The bottom line is that individuals in the Ninth Circuit can no longer be forced to relitigate their convictions in mini-trials before the IJ. A conviction can only be classified as a CIMT if moral turpitude is established through the same procedures called for involving other generic crimes.

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The Board first held that an immigration judge must first determine whether to terminate an asylee's asylum status before adjudicating charges of inadmissibility or deportability. The Board remanded because the immigration judge did not do that here. Before remanding, however, the Board addressed whether he was properly charged with inadmissibility and issues regarding V-X-'s guilty plea to charges that he delivered marijuana, conspired to deliver marijuana, and knowingly kept a vehicle for the purpose of keeping or selling controlled substances in violation of sections 333.7401(2)(d)(iii), 750.157a, and 333.7405(1)(d) of the Michigan Compiled Laws, respectively.

The Board rejected V-X-'s argument that as a person granted asylum he is not subject to charges of inadmissibility under section 212 of the Immigration and Nationality Act (INA), but rather must be charged with deportability under section 237. He had entered the U.S. on parole and obtained asylum in the U.S. The Board held that neither parole nor grant of asylum amount to an admission to the United States, which it has held is limited to inspection and admission at a port of entry or adjustment to permanent resident status. Since he was not "admitted to" the U.S., the Board held the grounds of inadmissibility applied.

The Board next rejected V-X-'s argument that being designated a "youthful trainee" under section 762.11 of the Michigan Compiled Laws was not a conviction and thus did not make him inadmissible for conviction of a crime involving moral turpitude or a controlled substance offense. It held the youthful trainee designation did not correspond to a civil determination of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), so the guilty plea amounted to a conviction under the INA. Unfortunately for a published decision like this one, though, the Board did not explain why the youthful trainee designation did not correspond to the FJDA. It just cited Uritsky v. Gonzales, 399 F.3d 728, 734–35 (6th Cir. 2005). The explanation would not have taken to long; it is simply this: a youthful trainee has a conviction until it is vacated after a period of good behavior and rehabilitation, while a juvenile delinquent under the FJDA never has a criminal conviction because it is a civil status finding.

The Board also noted the potential applicability of the recent Supreme Court decision in Moncrieffe to the immigration judge's finding that V-X- was ineligible for asylum or withholding of removal for conviction of an aggravated felony and particularly serious crime. Specifically, V-X-'s conviction would not be an aggravated felony if the statutes he was convicted of violating potentially could involve gratuitous distribution of a small amount of marijuana.

Interestingly, the Board also noted that Moncrieffe should be considered in assessing whether V-X- would be eligible for adjustment of status as an asylee under INA section 209(b) with a section 209(c) waiver of inadmissibility. An asylee is not eligible to adjust if he is inadmissible under section 212(a)(2)(C) for reason to believe he has been involved in drug trafficking, which does not require a conviction. Thus, the Board is indicating that gratuitous distribution of a small amount of marijuana may not trigger 212(a)(2)(C) inadmissibility.

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The Supreme Court overruled the Ninth Circuit's en banc decision on the categorical analysis of criminal convictions in United States v. Aguila-Montes de Oca. The categorical analysis refers to the process of comparing a prior state or federal conviction to a generic federal definition of a crime to determine whether the prior conviction triggers certain consequences. The Supreme Court held that a court may look to the record of conviction (charging document, plea transcript, jury findings, etc.) only if the defendant was convicted of a “divisible” statute and resort to the record is necessary to determine which of separate alternative elements that the conviction rested on. In contrast, if a statute is not divisible—meaning it contains a single set of elements that is broader than the generic offense—the categorical inquiry is resolved in the defendant’s favor, even if he actually committed the generic offense or admitting to doing so.

My own example based on the holding is as follows: if a statute penalizes possession of cocaine, heroin, or marijuana (and if the identity of the drug is relevant to the federal generic definition), then the reviewing court can look to specified documents from the record to determine if the conviction was for cocaine, heroin, or marijuana. On the other hand, if the statute penalizes possession of unspecified drug paraphernalia, then the reviewing court may not be look to the record to determine the drug that the paraphernalia related to, since the identity of the drug is not an element of the offense.

In Aguila-Montes de Oca, the Ninth Circuit had held to the contrary that a reviewing court may look beyond the elements of a conviction to assess the purported facts of a case based on the prosecution's theory of the crime. For example, pursuant to that opinion a reviewing court could look to other evidence, such as an arrest report, that the paraphernalia had residue of heroin. The Supreme Court not only rejected that approach, but disparaged it. It held that "accepting the Ninth Circuit’s contrary reasoning would altogether collapse the distinction between a categorical and a fact-specific approach." And there are several parts of the Supreme Court's opinion that are more caustic than that, making for a good read.

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From the perspective of attorneys defending immigrants against removal for convictions, it is hard to imagine a better outcome than the Supreme Court's 7-2 ruling in this case. It holds that a conviction satisfies a generic definition of an offense under the Immigration and Nationality Act (INA) only if the minimum conduct for the conviction, not applying legal imagination, satisfies the definition. This rule is faithful to past decisions of the Supreme Court, but it undermines many of the previous Ninth Circuit and Board of Immigration Appeals (BIA) decisions examined on this blog.

The Department of Homeland Security (DHS) put Moncrieffe, a long-term lawful permanent resident, in removal proceedings and alleged he was an aggravated felon drug trafficker based on a Georgia conviction for possession of marijuana with intent to distribute. The conviction resulted from a traffic stop where the police found 1.3 grams of marijuana (enough for 2-3 cigarettes).

Moncrieffe had argued DHS could not prove he was an aggravated felon because the Georgia offense encompasses distribution of a small amount of marijuana for no remuneration (i.e., social sharing) and that is not a felony under the federal Controlled Substances Act (CSA). The lower courts rejected that argument because in a federal prosecution the default sentencing range is as a felony and the defendant would need to establish the small amount and lack of remuneration to qualify for a misdemeanor sentence.

The Supreme Court rejected the hypothetical federal prosecution approach because the INA requires that a conviction be equivalent to a CSA felony to meet the drug trafficking aggravated felony definition and a conviction does not meet that test unless it excludes the possibility of being equivalent to a CSA misdemeanor.

In reaching that conclusion, the Supreme Court forcefully reaffirmed language from its earlier decision in Johnson v. United States: “we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” 559 U.S. 133, 137 (2010) (alterations in original). In other words, if a statute penalizes some conduct that does not meet the INA definition, and there is a realistic probability that the state would prosecute that conduct, then the conviction cannot satisfy the INA definition, unless the record narrows the conviction to the generic INA definition (the modified categorical analysis).

The real action in the lower courts has been attempts to expand the reach of the modified categorical analysis, but Moncrieffe sent a shot over the bow indicating the modified categorical approach is permissible only when the criminal statute lists different crimes separately. This contrasts with the Ninth Circuit's en banc decision in Aguila Montes de Oca. But just what is a divisible statute that lists different crimes separately? The Supreme Court's forthcoming decision in Descamps should answer that.

Moncrieffe also undermines the Ninth's en banc decision in Young, which held that a respondent applying for discretionary relief in removal proceedings could not meet the burden of proving eligibility if the record of conviction is inconclusive as to whether the offense matches the generic INA definition for a disqualifying conviction. Moncrieffe indicates that the categorical approach applies to the question of eligibility for relief too and that a conviction is presumptively for the least serious conduct that has a realistic probability of being prosecuted.

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For an excellent practice advisory, visit:

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The Ninth Circuit held that a plea to California Health and Safety Code 11378 (possession of a controlled substance for sale) was an aggravated felony under the modified categorical approach where count 2 of the complaint alleged the substance involved was methamphetamine and the plea form, minute order, and abstract of judgment all indicated the plea was to count 2. It held that the fact the plea was pursuant to People v. West was of no consequence, despite the fact that under California law a West plea does not necessarily admit all of the alleged facts.

The decision fails to even acknowledge that it conflicts with the en banc decision in U.S. v. Vidal or the prior decision in Fregozo v. Holder. Each hold that a minute order must include the critical phrase "as charged" to sufficiently establish under the modified categorical approach that the defendant pled guilty to an aggravated felony where the minute order does not otherwise indicate the factual basis for the plea. This is because under California law a charging document can be orally amended, so a plea to "count 2" does not necessarily mean a plea to the count as written in the complaint. This is particularly true for a West plea. Unfortunately, Valdavinos-Torres fails to even address this issue, which is strange since the decision does discuss Vidal.

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This en banc decision has disastrous consequences for many immigrants who entered guilty or no contest pleas in reliance on Ninth Circuit precedent from the last 5 years. The Ninth Circuit had held in Sandoval-Lua v. Gonzales that an immigrant is eligible to apply for legal status or discretionary relief from removal unless his or her record of conviction clearly shows conviction of a disqualifying offense. This is critical because some criminal statutes cover both conduct that would disqualify a person and conduct that would not disqualify a person. If the record of conviction is ambiguous regarding the offense pled to, Sandoval-Lua had held the immigrant was not disqualified. Young reversed this holding. It held the record must clearly show the person was not convicted of a disqualifying offense.

Moreover, the "record of conviction" includes only the charging instrument, transcript of the plea colloquy, plea agreement, and comparable judicial records of this information. That means police reports, probable cause declarations, the applicant's testimony, etc., cannot be used to show that the person was not convicted of a disqualifying crime. Thus, if the record of conviction is not clear, the Ninth Circuit now holds the applicant cannot establish eligibility.

On the other hand, if the government must establish deportability or inadmissibility (as in many cases regarding lawful permanent residents), then Young held an ambiguous record will prevent the government from meeting its burden.

The one beneficial holding from Young is that a plea to a conjunctively phrased count does not necessarily admit all of the alleged ways of violating the statute. In other words, a plea to a count that alleges sale, transportation, and offering to sell a controlled substance does not equal an admission of all of those offenses. The court recognized that prosecutors often allege commission of all of the various offenses covered by a statute despite only needing prove the defendant committed one of them. Young thus overruled the contrary holding in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc) (per curiam).

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