Police Report that Had Been Incorporated into Guilty Plea Was Part of Record of Conviction

In applying the modified categorical approach to assess an alien’s conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings.

The Board of Immigration Appeals (BIA or Board) has held that, in applying the modified categorical approach to assess an alien's conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings. In the instant case, the respondent was convicted of battery against a spouse, and the issue was whether that conviction amounted to a crime of violence. Matter of Milian-Dubon, 25 I. & N. Dec. 197 (B.I.A. Feb. 19, 2010).

The respondent, a native and citizen of Guatemala, is a lawful permanent resident of the U.S. In 2004, he pled guilty to battery of his spouse in violation of Cal. Penal Code § 243(e)(1). The Department of Homeland Security (DHS) initiated removal proceedings, contending that the respondent's conviction rendered him removable under INA § 237(a)(2)(E)(i) [8 USCA § 1227(a)(2)(E)(i)] for having committed a crime of domestic violence. The immigration judge (IJ), finding that the record of conviction consisted only of the criminal complaint and guilty plea, concluded that the information in the record did not clearly establish that the respondent had been convicted of a crime of domestic violence and terminated the proceedings. DHS appealed the IJ's decision, arguing that the IJ erred by not including the police report in the record of conviction.

In a decision written by Board Member Garry Malphrus, in which Board Members Edward Grant and Neil P. Miller joined, the Board began its analysis by looking at the language of the relevant statutes. It found first that the generic statute holds that a crime of domestic violence is a crime of violence against, among others, a current or former spouse. Further, the generic definition of crime of violence includes, among other things, the use, attempted use, or threatened use of physical force against another person. Turning to the California statutes, the BIA found that the California crime of domestic violence statute punishes battery against certain persons, in this case, the respondent's spouse. The BIA looked at the California definition of “battery,” which is any willful and unlawful use of force or violence upon the person of another, and determined that it did not require a force capable of hurting or causing injury nor did it require violence in the usual sense of the term. Thus, the Board opined, the respondent's crime was not categorically a crime of violence or, by extension, a crime of domestic violence. The Board thus turned to the modified categorical approach outlined by the U.S. Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990).

Under the modified categorical approach as applied in the U.S. Court of Appeal for the Ninth Circuit, the jurisdiction in which the respondent's case is being litigated, only when the particular elements of the crime are broader than the generic crime can the modified categorical approach be used. Further, if the crime of conviction is missing an element of the generic crime, the approach may not be used. The Board opined that battery is an element of the crime that the respondent was convicted of and, thus, the crime of domestic violence is not missing an element of the general crime. The Board concluded that it was therefore free to use the modified categorical approach in the instant matter.

Applying the approach, the Board stated that it “may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings.” In the instant matter, the relevant conviction documents included the criminal complaint and the respondent's signed guilty plea, which reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. The Board stated that, while a police report, standing alone, is not part of the record of conviction,
the fact that the respondent incorporated the police report into the guilty plea made it an “explicit statement ‘in which the factual basis for the plea was confirmed by the [respondent].”’

The Board rejected the respondent's argument that the police report was not admitted into the record and thus should not be considered. The Board opined that, because the plea agreement incorporates the police report, it is indeed considered part of the record. The IJ should have considered the information in the police report, the Board concluded, and remanded that matter to the IJ for further findings consistent with the Board's opinion.

John Richard Smith, San Diego, California, represented the respondent. Megan Berry Oshiro, Assistant Chief Counsel, represented DHS.

EOIR Immigration Law Advisor

EOIR Virtual Law Library - AG/BIA Precedent Decisions

EOIR has published a monthly internal legal newsletter, the Immigration Law Advisor, since January 2007 summarizing new developments in immigration law. The Immigration Law Advisor includes a feature article about an issue in immigration law, federal court activity (which includes circuit-specific information about appeals and interesting cases), BIA precedent decisions, and a regulatory update.

Volume 4 #1

__________

Seventh Circuit: Milanovic v. Holder, __F.3d__, 2010 WL 22371 (7th Cir. Jan. 6, 2010): The Seventh Circuit affirmed the denial of the Serbian petitioner‚ applications for withholding of removal and protection under the Convention Against Torture. (The petitioner‚ asylum application was dismissed as untimely.) The Immigration Judge found that the petitioner was persecuted when he was beaten by supporters of Slobodan Milosevic. However, relying on the State Department Country Report, the Immigration Judge ruled that DHS rebutted the presumption of future persecution, given that Milosevic is no longer in power. With respect to the petitioner's argument‚that his claim of persecution was based on the actions of a purely local official and thus the ouster of Milosevic could not constitute a change in country conditions sufficient to rebut the presumption of future persecutions, the court ruled this argument was waived because the petitioner did not present it to the Immigration Judge or Board. The court further ruled that, even if the petitioner's argument was not waived, there is adequate evidence to support the Immigration Judge's determination that the removal of Milosevic constituted a change in country conditions sufficient to rebut the presumption of future persecution.

Haile v. Holder, __F.3d__, 2010 WL 22372 (7th Cir. Jan. 6, 2010): The
Seventh Circuit remanded following the denial of the petitioner's application for asylum. The petitioner was born in Ethiopia to parents of Eritrean ethnicity. When Eritrea and Ethiopia separated in 1993, the petitioner's parents renounced their Ethiopian citizenship and became Eritrean citizens, but the petitioner remained in Ethiopia and kept his Ethiopian citizenship. In 1998, when war began between Ethiopia and Eritrea, Ethiopia expelled 75,000 Ethiopian citizens of Eritrean ethnicity. Before he could be expelled from Ethiopia, the petitioner went to the United States and applied for asylum, arguing that Ethiopia's stripping him of citizenship constituted persecution. The Immigration Judge initially denied the application on the grounds that stripping a person of citizenship, without anything more, is not persecution. The Seventh Circuit remanded in Haile v. Gonzales, 421 F.3d 493 (7th Cir. 2005), but the Board subsequently denied the application again. In remanding for a second time with its present decision, the court first agreed with the Board "that not all denationalizations are instances of persecution." However, the court disagreed with the Board's conclusion that even if a person loses his citizenship because of a "A protected ground‚" . . . such a loss of citizenship does not, without more, amount to persecution.‚" In this respect, the court stated that "i]f Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it did so because of hostility to Eritreans . . . and [this] suggest[s] that his denationalization was persecution and created a presumption that he has a well-founded [sic] fear of being persecuted should he be returned to Ethiopia."

Bayo v. Napolitano, __F.3d__, 2010 WL 174231 (7th Cir. Jan. 20, 2010):
The Seventh Circuit denied the petition for review of a citizen of Guinea from the DHS‚ summary order of removal. The petitioner, who entered the United States under the Visa Waiver Program using a stolen Belgian passport, had been ordered removed by DHS without being placed in removal proceedings. The court rejected the petitioner's argument that the VWP provisions could not apply to him as a citizen of Guinea (a non-VWP country) and further found no due process violation based on the petitioner‚ claim that his signing of the waiver of his right to a hearing was not‚ "knowing and voluntary" where he failed to establish that he was prejudiced as a result. The court finally found that the petitioner was precluded from pursuing his adjustment of status application (based on his marriage to a United States citizen) where such petition was filed beyond the 90-day limit for visits allowed under the VWP provisions.

Kucana v. Holder, __S. Ct.__, 2010 WL 173368 (Jan. 20, 2010): The Supreme Court reversed and remanded the decision of the United States Court of Appeals for the Seventh Circuit, which had ruled that it lacked jurisdiction to review the Board's denial of a motion to reopen based on a claim of changed country conditions in Albania. The Court held that the provisions of section 242(a)(2)(B) of the Act prohibit judicial review of matters in which the Attorney General is given discretion by statute, but not to matters in which the Attorney General grants discretion to the Board by regulation.

Matter of Maria del Carmen MARTINEZ-SERRANO

(1) An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E (i)(2006).

(2) Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.

File A092 340 037 - Florence, Arizona
25 I&N Dec. 151 (BIA 2009)
Decided December 9, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

What happens when your Immigration Case is Denied? Appeals to the Board of Immigration Appeals or Federal Courts from denial by IJ/officer

What Happens If Your Immigration Case is Denied?

The Immigration Act provides the opportunity to appeal decisions of immigration officers or immigration judges to a higher level. How, and which court or agency, your appeal should be directed is the subject of this blog.

The Board of Immigration Appeals is found in Falls Church, Virginia, and as of April 2009 has 14 Board Members, who are administrative judges appointed by the U.S. Attorney General. Three member panels make most decisions, however, the whole board will hear the most important cases. The size of the full BIA varies from time to time, depending on resignations, retirements and new appointments; it may have up to 15 Board Members under the current authorizing legislation. However, following the practice of appellate courts, many decisions of the BIA are by panels that are composed of only a few Board Members.

The Board exercises appellate jurisdiction over various types of actions. These include a review of immigration judges' decisions in removal cases; decisions of USCIS District Directors and immigration judges on waiver applications; relative visa petition denials and approval revocations; bond, parole or detention determinations; and immi gration judges decisions on rescissions of adjustment of status. Also included in BIA review are a wide variety of applications, including fraud waivers under section 212(i) and waivers of inadmissibility under section 212(h). The BIA's review of deportation decisions includes a review over the chosen country of deportation; suspension of deportation (now cancellation) applications; voluntary departure applications; registry determinations; discretionary waiver application determinations; asylum applications; and adjustment of status applications.

Only aggrieved parties have standing to appeal to the Board. In relative visa petition cases, this means only the petitioner (or the petitioner and the beneficiary together) may file the appeal. In removal cases, only the person ordered removed has standing to take an appeal to the BIA. The BIA has broad authority to review both issues of fact and issues of law, to make its own separate findings of fact and to exercise its broad discretionary powers as it sees fit. Usually, however, the Board will accept an immigration judge's findings of fact, on the rationale that the trier of fact had the better opportunity to assess credibility. The BIA generally limits its review to matters in the hearing record, and will not consider new evidence on appeal, absent exceptional circumstances.

You must file a notice of appeal on Form I-290A, with the applicable filing fee. The BIA may waive the filing fee for indigents. Appeals from decisions of immigration judges are filed directly with the BIA, while appeals from decisions of the immigration service are filed with the INS officer who has jurisdiction over the case. You must file the notice of appeal within the time periods specified in the regulations. In deportation cases, the Board must receive the notice within thirty days of the immigration judge's decision. The notice of appeal is not considered filed until it is actually received, with a filing fee. If the last day to file falls on a Saturday, Sunday or legal holiday, thereafter the period wherein to appeal is extended to the next business day.

You must set out the specific reasons for the appeal on the notice of appeal form. Failure to follow this requirement may result in a summary dismissal by the Board. The Board may also dismiss appeals that are frivolous or filed solely for delay. If oral argument is desired, you must request it in the notice of appeal. The BIA thereafter has discretion whether to grant the request. You may submit a brief with the notice of appeal, or you can request more time, from the Board, wherein to submit your brief on appeal.

The Administrative Appeals Office is in Washington, DC, and is under the jurisdiction of the commissioner of the immigration service. The AAO has jurisdiction over many types of actions including appeals from denials of employment-based preference petitions, appeals from denials of petitions for temporary workers (i.e., E, H, L, O, & P denials), appeals from revocation of approvals of immigrant visa petitions; reentry permit application denials; and appeals from denials of applications for waiver of the two-year foreign residence requirement based on exceptional hardship or fear of persecution.

A single copy of a notice of appeal is filed on INS Form I-290B, with the proper filing fee, within 30 days of the service of notice of the denial. If the service of the denial is by mail, an added three days is added to the 30 days. If the last day to file falls on a Saturday, Sunday or legal holiday, the period wherein to appeal is extended to the next business day. Appeals should be filed with the local CIS office that issued the denial decision. An appeal is considered "filed" on the date which it is actually received at the CIS office. The notice of appeal must state the specific reasons which the appeal is based. Failure to do this may lead to a summary dismissal of the appeal. An appeal may also be dismissed if it is patently frivolous. If oral argument is requested, specific written reasons must be provided to explain why the argument is needed. A single copy of a brief may be submitted simultaneously with the notice of appeal, or you may submit your brief directly to the AAO within 30 days. In addition, for good cause shown, the AAO may extend the time wherein to file your brief.

The regulations provide that in nonimmigrant or immigrant visa petition cases, only the petitioner has standing to appeal. However, the alien beneficiary may also join in an appeal filed by the petitioner. On an appeal to the AAO, you are not limited to discussing matters in the record below. You may submit new proof without any showing that the proof was unavailable earlier. Also, the regulations provide that the immigration service may, on its own, treat the appeal as a motion to reopen or reconsider.

Motions to Reopen or Reconsider:

An alien may file one motion to reopen or reconsider the decision of an immigration judge, the Board of Immigration Appeals, or the Administrative Appeals Office. For motions to reopen, the motion shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. The motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal, however, there is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for asylum or withholding of deportation and is based on changed country conditions arising in the country of nationality or the country whereto removal has been ordered, if such p roof is material and were not available and could not have been found or presented at the previous proceeding.

A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, and shall state the errors of law or fact in the previous order and shall be supported by relevant authority.

The motion is filed with the judicial body that made the last decision in the case, and must be accompanied by the applicable filing fee. A copy of the motion must be served upon the immigration trial attorney, if applicable.

Federal Court Appeals:

The Immigration Act of 1996 significantly changed many areas of judicial review. In fact, the federal courts are now prevented from reviewing many types of cases over which they previously held authority. In effect, the Act intended to end in many respects the role of the federal courts in immigration matters.

Most of the changes are in section 242 of the immigration act. This section states that the federal courts shall have no jurisdiction to review decisions of immigration officers concerning aliens in expedited removal proceedings. In addition, no court shall have jurisdiction to review any judgment regarding the granting of relief under section 212(h), waiver of inadmissibility for criminal grounds; section 212(i), waiver of inadmissibility for fraud or misrepresentation; section 240A, cancellation of removal; section 240B, voluntary departure; or section 245, adjustment of status. Also, no appeal is permitted for an alien who is inadmissible or deportable because of having committed certain criminal offenses, or whose application for asylum was denied by the immigration service. (It should be pointed out that the constitutionality of many of these new provisions is being tested in the courts now. Therefore, it is possible that some of these new provisions will not stand. If any changes are made, they will be posted immediately to our web site).

When an appeal to the federal courts is permitted, the petition for a review must be filed in the Court of A ppeals, which have jurisdiction over the case, which is the circuit where the immigration judge ended the case. The petition for a review must be filed in the court of appeals within 30 days of the removal order becoming final, and must be accompanied by the applicable filing fee. A copy of the petition must be served upon the Immigration and Naturalization Service.

It must be noted that the filing of the petition for a review does not automatically stay removal of the alien from the United States. Therefore, a motion for a stay of deportation or removal should also be filed with the appeals court.

Once the court of appeals has jurisdiction, it will establish a briefing schedule. These limits can only be changed if the court, for good cause shown, orders differently.

If an alien fails to file a brief within the time called for, the court must dismiss the appeal unless a clear injustice would result. If the decision of an appeals court were not favorable to the alien, the only recourse would be to file a petition to the US Supreme Court.

The “Real ID Act of 2005" was signed into law (Pub. Law No. 109-13) on May 11, 2005, as Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, and became effective on the date of enactment.

(Sec. 101) Amends Immigration and Nationality Act (INA) provisions concerning asylum to: (1) authorize the Secretary of Homeland Security, in addition to the Attorney General, to grant asylum (retroactive to March 1, 2003); (2) require asylum applicants to prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be (if removed) the central reason for their persecution; and (3) provide that an applicant's testimony may be sufficient to sustain this burden of proof only if the trier of fact determines that it is credible, persuasive, and fact-specific. Requires corroborating evidence where requested by the trier of fact unless the applicant does not have the evidence and cannot reasonably obtain it without departing the United States. States that the inability to obtain corroborating evidence does not excuse the applicant from meeting his or her burden of proof.

Lists factors relevant to credibility determinations in asylum cases, including (but not limited to) the: (1) demeanor, candor, or responsiveness of the applicant or witness; (2) inherent plausibility of the applicant's or witness' account; (3) consistency between the applicant's or witness' written and oral statements; (4) internal consistency of each such statement; (5) consistency of such statements with other evidence of record (including the Department of State's reports on country conditions); and (6) any inaccuracies or falsehoods in such statements regardless of whether they go to the heart of the applicant's claim. States that there is no presumption of credibility.

Makes this Act's provisions regarding proof requirements and credibility determinations in asylum proceedings applicable to other requests from relief for removal.

Limits judicial review of determinations regarding the availability of corroborating evidence.

Removes the numerical limit on the number of aliens granted asylum whomay become lawful permanent residents in any fiscal year (currently setat 10,000).

Repeals provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) requiring a study and report on terrorists in the asylum system.

(Sec. 103) Expands the grounds of inadmissibility and deportability due to terrorist or terrorist-related activity to include aliens who: (1) are representatives of terrorist organizations or political, social, or other groups that endorse or espouse terrorist activity; (2) are members of designated terrorist organizations; (3) are members of organizationsthat engage in specified acts of terrorism; (4) endorse or espouse terrorist activity or persuade others to do so; or (5) have received on behalf of any organization that at the time was a terrorist organization.

(Sec. 105) Bars inadmissible arriving aliens from seeking judicial review of removal orders through habeas corpus, mandamus, or other extraordinary petitions.

Imposes a similar bar on denials of discretionary relief and ordersagainst criminal aliens, with an exception for petitions for review concerning constitutional claims or pure questions of law.

Establishes the INA's judicial review provisions as the sole avenue for challenging removal orders and reviewing claims arising under the United Nations Convention Cruel, Inhuman, or Degrading Treatment or Punishment.

Requires petitions for review filed under pre-IIRIRA law to be treated as if filed under INA as amended by this section. States that such petitions shall be the sole and exclusive means for judicial review of orders of deportation or exclusion.

(Sec. 106) Sets forth requirements for delivery bonds (guaranteeing delivery of an alien against whom the Department of Homeland Security(DHS) has issued an order to show cause or a notice to appear) and bonding agents. Requires such bonds to expire one year from the date of issue, at cancellation or upon surrender of the principal, or immediately upon nonpayment of the renewal premium. Authorizes annual renewal.

Requires cancellation of delivery bonds and exoneration of the surety:

• (1) for nonrenewal after the principal's surrender for removal;
  
• (2) if the surety or bonding agent provides reasonable evidence of
  misrepresentation or fraud in the bond application;
  
• (3) upon the death or incarceration of the principal or the surety's inability to produce
  the principal for medical reasons;
  
• (4) if the principal is detained by a law enforcement agency;
  
• (5) if it can be established that the principal departed the United States without permission;
  
• (6) if the foreign state of which the principal is a national is designated under temporary
  protected status provisions after posting of the bond; or
  
• (7) if the principal is surrendered to DHS, upon removal by the surety or bonding agent.

Authorizes the surrender of the principal to DHS for removal at any time, before bond conditions are breached, if the surety or bonding agent believes that the principal has become a flight risk.

States that a principal may be surrendered without the return of any bond premium if the principal: (1) changes address without providing advance written notice to the surety, bonding agent, and Secretary; (2) hides or is concealed from the surety, bonding agent, or Secretary; (3)
fails to report to the Secretary annually; or (4) violates the contract with the bonding agent or surety, commits any act that may lead to a breach of the bond, or otherwise violates bond obligations or
conditions.

Gives bonding agents or sureties desiring to surrender the principal the
right to:

• (1) petition the Secretary or any Federal court, without payment of fees or court costs, for an arrest warrant;
  
• (2) receive two certified copies of such warrant and the bond undertaking; and
  
• (3) pursue, apprehend, detain, and surrender the principal to any DHS detention official or facility or to any detention facility authorized to hold Federal detainees.

Requires all delivery bonds to be secured by a corporate surety that is
certified as an acceptable surety on Federal bonds and whose name
appears on Treasury Department Circular 570 and to set forth specified
information. Requires information about warrants for a principal's
arrest to be entered into the National Crime Information Center
database.

Gives bonding agents or sureties complete access to information about
the principal held by Federal, State, or local governments (or any
related subsidiary or police agency) that the Secretary determines may
be helpful in locating or surrendering the principal.

Establishes graduated penalties for bonding agents and sureties who fail to surrender a principal within 15 months of the issuance of an arrest warrant, subject to waiver. Gives bonding agents or sureties the absolute right to locate, apprehend, arrest, detain, and surrender any principal, wherever he or she may be found, who violates any bond term or condition. Limits total liability on any surety undertaking to the face amount of the bond.

Makes this section applicable to bonds and surety undertakings executed before, on or after the date of enactment of this Act.

(Sec. 107) Requires aliens arrested and detained pending a removal decision to post a delivery bond of at least $10,000 (currently, $1,500) in order to be released from custody, unless an immigration judge orders such alien's release on his or her own recognizance upon a finding that
the alien is not a flight risk and is not a threat to the United States.

(Sec. 108) Requires the Secretary to take into custody any alien subject
to a final order of removal and to cancel bond if the alien is produced
within the prescribed time limit whether or not DHS accepts custody.
States that the obligor on the bond shall be deemed to have
substantially performed all conditions and shall be released from
liability if the alien is produced within such time limit. Makes this
section applicable to all immigration bonds posted before, on, or after
the date of enactment of this Act.

Matter of Urena #3663, 25 I&N Dec. 140 (BIA 2009) Dangerous aliens are properly detained without bond pending the completion of proceedings

Matter of Urena, Interim Decision #3663, 25 I&N Dec. 140 (BIA 2009)

1. Dangerous aliens are properly detained without bond pending the completion of proceedings to remove them from the United States.
2. Only if an alien has established that he would not pose a danger to property or persons should an Immigration Judge decide the amount of bond necessary to ensure the alien’s presence at proceedings to remove him from the United States. 
3. Where an Immigration Judge characterized an alien seeking release from custody as a “potential” danger to the community but ordered him released upon the posting of a bond amount, the record was remanded for the Immigration Judge to clarify whether the alien met his burden of proving that his release on bond would not pose a danger to property or persons."

Criminal facilitation is not an "aggravated felony" as illicit trafficking

In an unpublished decision, the BIA held that a conviction for criminal facilitation in New York does not constitute an illicit trafficking type of aggravated felony. Taylor, A xx-xxx-801, slip op. (BIA Nov. 5, 2009)

Matter of MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009) conviction for possession or use of drug paraphernalia

(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia. (2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”

Deportation for Drug Crimes

The Supreme Court ruled, by an 8-1 vote, that conviction of a drug crime that is a felony under state law but only a misdemeanor under federal law is not kind the kind of offense that triggers potential deporation. Justice David H. Souter wrote the opinion for the Court in Lopez v. Gonzales (05-547). Justice Clarence Thomas dissented.

The ruling cleared up a conflict among federal appeals courts. Four had ruled that a felony under state law that is only a misdemeanor under federal law is not a drug trafficking crime under the Controlled Substances Act. Two others had disagreed. Federal immigration law provides for deportation for anyone convicted of a crime that is a "felony punishable under the Controlled Substances Act." The Court ruled that "a state offense comes within [that phrase] only if it proscribes conduct punishable as a felony under" the Controlled Substances Act.

The decision came in the case of Jose Antonio Lopez, a native of Mexico. He entereed the U.S. illegally in 1985 or 1986, but became a lawful permanent resident in 1990. In 1997, he was charged in state court in South Dakota with one count of possessing cocaine and one count of a conspiracy to distribute the drug. He ultimately pleaded guilty to aiding and abetting possession by another person.

Under state law, his crime was a felony, leading to a potential prison sentence of up to five years. He was sentenced to the maximum, but actually served only 15 months. Federal officials moved to deport him to Mexico, based upon the conviction for what they considered to be an "aggravated felony." Under federal law, however, the crime could only be punished as a misdemeanor.

A conviction for an aggravated felony under immigration law can lead to deportation, or may bar other relief, such as cancellation of a deportation order.

Justice Souter's opinion said that under federal law, mere possession is not a form of "illicit trafficking" in drugs, because that "connotes some sort of commercial dealing."

The Court had granted review of two cases on the issue, and consolidated them. In a one-sentence order, the Court on Monday dismissed the second case, Toledo-Flores v. U.S. (05-7664).

Majority opinion

Dissent

On December 13, 2007, the Board of Immigration Appeals (BIA) issued two precedent decisions that together mean that, in cases arising outside the Second, Fifth and Seventh Circuits, a non-citizen with more than one state drug possession conviction may not be deemed convicted of an aggravated felony where the state prosecutors did not rely on a prior conviction to charge and convict the individual as a recidivist. See Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007) (hereinafter Carachuri) and Matter of Thomas, 24 I&N Dec. 416 (BIA 2007) (hereinafter Thomas). The BIA left open the question of when a noncitizen who was convicted by the state as a recidivist could be deemed convicted of an aggravated felony.

In cases arising in the Fifth Circuit, as well as the Second and Seventh Circuits, the BIA indicated that it was constrained by circuit precedent to find that a second or subsequent state possession conviction may be deemed an aggravated felony regardless of whether the state prosecuted the individual as a recidivist. See Carachuri, 24 I&N Dec. at 385-88, 392-93. The precedents from these circuits cited by the BIA do not preclude a finding that a second or subsequent state possession offense is not an aggravated felony.

Matter of CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007) (ID 3592)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.

Matter of THOMAS, 24 I&N Dec. 416 (BIA 2007) (ID 3593)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.

Matter of Yanez, 23 I&N 390 (BIA 2002), ID#3473

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.


Lopez v. Gonzales, 127 S. Ct. 625, 166 L. Ed. 2d 462 (2006), holds that classification of an offense for the purpose of § 1101(a)(43) depends on how the accused's conduct would be treated under federal law. If the conduct of which the defendant has been convicted would be a felony under federal law, then it comes within § 1101(a)(43) if it meets that statute's requirements concerning the subject-matter of the crimes and the length of the sentence. In deciding whether given conduct would be a drug felony under federal law, it is not possible to limit attention to the elements of the offense under state law; the point of Lopez is that, when state and federal crimes are differently defined, the federal court must determine whether the conduct is a federal felony, not which statute the state cited in the indictment.
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Gonzales-Gomez v. Achim (March 22, 2006), 390 U.S. Supreme Court Transcript, Lopez v. Gonzalez

The 7th Circuit rejected Yanez(March 22, 2006), 390

Issue: whether a state-law felony that would be punishable only as a misdemeanor by federal law is nevertheless an “aggravated felony” ?

Posner: "The “yes” answer, here urged by the government, is a strained reading of the statutory language, is inconsistent with the government’s general position regarding the definition of “aggravated felony,” is inconsistent with the interest in uniform standards for removal, and is inconsistent with the legislative history. The only consistency that we can see in the government’s treatment of the meaning of “aggravated felony” is that the alien always loses.

Allowing cancellation of removal to depend on how severely a particular state punishes drug crimes would have the paradoxical result of allowing states, in effect, to impose banishment from the United States as a sanction for a violation of state law. For then if a state made the possession of one marijuana cigarette a felony, which it is perfectly entitled to do, it would be in effect annexing banishment from the United States to the criminal sanction. States do not have the power to banish people from the United States."

Posner applied the April 2005 district court ruling, 372 F. Supp. 2d 1062; 2005, that the Hypothetical Federal Felony approach applied; a state drug conviction was an aggravated felony only if the elements of the crime would constitute a felony under federal drug laws. "Aggravated felony," as defined under 8 U.S.C.S. ß 1101(a)(43)(B) of the INA, included a "drug trafficking crime" as defined in 18 U.S.C.S. ß 924(c), which in turn was defined as any felony punishable under the Controlled Substances Act (CSA), 21 U.S.C.S. ß 801 et seq. The CSA generally punished first-time simple possession as a misdemeanor. The legislative history of 18 U.S.C.S. ß 924(c) and the INA did not indicate that Congress intended for minor drug possession convictions to be aggravated felonies. Also, the uniformity requirement under U.S. Const. art. I, ß 8, cl. 4 weighed against reliance on varying state laws.