Delgado v. Holder, the most recent en banc decision of the schizophrenic Ninth Circuit may be one of those event-horizon cases.  Valiantly litigated by AILA member Niels Frenzen, Delgado is notable, of course, for its headline holdings:  what it means to be convicted of a particularly serious crime.  These holdings, which we briefly summarize below, will impact the adjudication of numerous claims for asylum and withholding.

Delgado, a citizen of El Salvador, sought asylum, withholding and withholding under CAT but was deemed ineligible by the IJ. The BIA affirmed because they explained, in an unpublished opinion, that Delgado had been convicted of a particularly serious crime.  It was his third conviction for misdemeanor driving under the influence.

Judge Fisher, writing for 10 of the judges, granted in part and denied in part Mr. Delgado’s petition for review.  There were three case-specific holdings:  (1) the federal circuit courts have jurisdiction to review the BIA’s determinations that any particular individual has been convicted of a particularly serious crime;  (2) a particularly serious crime is not limited to aggravated felonies.  Crimes that are not aggravated felonies, such as driving under the influence, are not statutorily precluded from being designated as particularly serious by the BIA; and, (3) the Attorney General may classify crimes as particularly serious both by case-by-case adjudication and by regulation for asylum purposes.

What makes the case a boundary-marker, though, is the manner in which the Ninth Circuit applies the Chevron doctrine to decisions of the Board of Immigration Appeals.  If its Chevron holding sticks – and there are a lot of uncertainties on this point – then it ought to fundamentally alter the manner in which the federal courts, in this case the Ninth Circuit and the district courts therein, review agency immigration decisions.

Justice Stevens, the author of Chevron, explained recently that “[i]n the 25 years since Chevron was decided, [the Supreme Court] has continued to recognize that courts and agencies play complementary roles in the project of statutory interpretation.” The Chevron doctrine, as conceived of by the Supreme Court and implemented by the lower courts, clarifies how courts and agencies work together to achieve the goals articulated by Congress in legislation. As Justice Stevens is emphatic about pointing out: judicial deference to agencies’ views on statutes they administer was not born in Chevron and the role of the judiciary to say what the law is did not die with it either.

Chevron famously provides a two-step structure for judicial review of agency decision making while preserving the legitimate authority of an agency and, ultimately, Congress. At Chevron step one, a court determines whether Congress’ intent is expressed in the statute’s plain language, and if it is, that intent must be given effect. However, when Congress has explicitly left a gap for the agency to fill, a court must proceed to step two, where the inquiry is whether Congress was silent or used language that is ambiguous. If so, the agency’s interpretation is given controlling weight unless it is unreasonable.

The doctrine is well-known yet, in spite of its heritage, it is not well-understood.  What Chevron meant in the context of the poorly-reasoned flotsam flooding the federal courts in the wake of the BIA procedural reforms (wherein to their shame, the members of the BIA decided that they would no longer do their jobs no matter their oaths of office), the seemingly pristine Chevron doctrine, while simple in statement, proved difficult in application.  What to make of the mess of BIA decisions?  In a series of decisions, culminating in the en banc decision in Marmolejo-Campos v. Holder, the Ninth Circuit resolved what had been an inconsistent approach to the Chevron doctrine on several critical questions.  (The Ninth Circuit is not alone on its confusion and inconsistent approach to Chevron.  Some circuits, such as the First, Fifth, Eighth, and Eleventh continue to wander in the darkness in their view that Chevron acts as a docket-clearing mechanism that permits them to Pontius-Pilate their way to denying case after case without too much thought or guilt.)

In the Ninth Circuit, it is now so that as to form, only published BIA decisions curry Chevron deference.  An unpublished decision relying on a published opinion for dispositive effect will also trigger Chevron as to the contents of the published decision.  Immigration Judge decisions are not Chevron eligible.  Single-member BIA decisions, like unpublished BIA decisions, are not Chevron eligible.

As to content, the BIA decision must interpret its governing statute, such as the Immigration and Nationality Act, to be Chevron eligible.  For example, BIA decisions interpreting criminal law are not reviewed under Chevron.

The Delgado decision highlights a recurring, yet largely side-stepped Chevron question: when reviewing a BIA decision, if the BIA does not actually invoke Chevron in its decision, is its statutory analysis eligible for Chevron deference?  In other words, if the BIA adopts a plain language analysis of the INA and it thereby does not exercise its administrative discretion or expertise to fill a statutory gap or give meaning to any ambiguous terms does Chevron matter at all? Likewise the corollary: if the BIA finds the statute to be clear, but a judicial court finds the statute to be ambiguous, what should the court do?

In an amicus brief, AILA argued that when the BIA engages in a plain language statutory analysis, fills no statutory gaps, or does not particularize ambiguous statutory terms, its decision – published or not – is not eligible for Chevron deference. This is so even if the BIA is mistaken in its analysis and, indeed after judicial construction, a statute is ambiguous. Ambiguity, in the end, will always be a judicial determination.  The principle that – as to content – an administrative agency must actually use its expertise to fill statutory gaps or particularize ambiguous statutory terms before Chevron will apply appears to be well accepted in administrative law outside the immigration context.  But the circuit courts have failed to recognize this principle when applied to BIA decisions.  For example in Garfias-Rodriguez v. Holder, the Ninth Circuit recently cited Chevron and deferred to the BIA’s decision in Matter of Briones, yet in Matter of Briones the BIA merely conducted a plain language analysis of the statute and did not, in fact, invoke its interpretive powers.

In its brief in Delgado, AILA explained that the Supreme Court does not treat BIA decisions any differently citing to Negusie v. Holder.  In that case, the dispute centered on whether coercion or duress is relevant in determining if a noncitizen assisted or otherwise participated in the persecution of others such that he or she would be ineligible for asylum. The BIA in denying the application had concluded that its caselaw did not recognize coercion or duress as a defense to the persecutor bar. The government defended this decision on the basis of Chevron – the BIA was entitled to deference in interpreting the Immigration and Nationality Act. The problem in that defense though, Justice Kennedy pointed out, was that the BIA had not actually “interpreted” anything.  The BIA, erroneously, had concluded that its rulings were compelled by a Supreme Court decision interpreting a different statute. Accordingly, Chevron was inapplicable because the BIA had not used its Chevron delegated power to make law.

Judge Fisher, in his opinion in Delgado, credits the argument and explains at footnote 12 that, true, the BIA would not have been entitled to deference had it only reached a plain language interpretations.  Judge Fisher stated that the BIA, in fact, had found the statute to be ambiguous and thus adopted a Chevron gap-filling interpretation. In cases where the BIA believes a statute is plain, but it is in fact ambiguous, the court will remand for an agency interpretation under Chevron.

And why is this so important that we would characterize Delgado as being a marker?  Well, there are a couple of reasons.  First, it may mark the high-water mark of Chevron.  Certainly, Chevron will retain its importance in defining the relationship between the federal courts and administrative agencies, but courts may no longer reflexively invoke it to clear their dockets and instead will need to do the actual job of judges: judge.  Second, it casts doubt on every circuit court decision that deferred to a plain language BIA analysis.  Third, it specifically indicates that the highly contested BIA decisions in Matter of Briones, Matter of Lemus-Losa, and Matter of Rodarte, will not be entitled to Chevron deference because the BIA did not use its Chevron delegated powers.  Fourth, it ought to cause OIL attorneys to rethink their axiomatic and indiscriminate invocation of Chevron in defense of poorly reasoned BIA decisions when the BIA decision itself did not rely on Chevron.  In short, if the message conveyed in the simple footnote in Delgado is not lost, it ought to bring additional restraints on administrative decision-making and bring additional rationality to judicial review of immigration decisions.

Please direct comments to amicus@aila.org.

A few weeks ago, we discussed the conspicuous absence of AG Holder from the ongoing Silva-Trevino controversy.  Since that time, the BIA has issued another opinion attempting to articulate when it is proper for an IJ to abandon traditional categorical (Step One) and Modified Categorical (Step Two) and resort to Silva-Trevino’s amorphous Step Three. 

Removal matters decided solely on Silva-Trevino Step Three continue to make their way to Circuit Court.  The issue then becomes whether the agency’s opinion in Silva-Trevino is entitled to any judicial deference, and if so, how much. 

AILA, joined by the Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers’ Guild, and the University of Maryland School of Law Immigration Clinic, filed an Amicus Brief with the 4^th Circuit Court of Appeals last week arguing former AG Mukasey’s needless departure from a century of case law in Silva-Trevino is entitled to no deference.  In fact, the 4^th Circuit observed thirty-five years ago that the focus of the INA “is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense.”  Castle v. INS, 541 F.2d 1064, 1066 n. 5 (4^th Cir. 1976).  There was no ambiguity then (which could make room for reasonable agency interpretation) and there is no ambiguity now.  AG Mukasey simply ignored the plain language of the statute, which makes the focus on the criminal conviction, rather than the circumstances surrounding a criminal arrest. 

The Waheed brief was assembled and edited by Jeremy McKinney, Maria Andrade, and Russell Abrutyn for AILA and Isaac Wheeler for the Immigrant Defense Project.  However, the brief itself is simply the latest rendition of what AILA and other associations have been saying since Silva-Trevino was released in 2008.  The original scholarship came from many others who blazed the trail, such as Br. of IDP et al. as Amicus Curiae, Prudencio v Holder, No. 10-2382 (4^th Cir. 2011) and Br. of AILA et al. in Support of Motion for Reconsideration, Matter of Silva-Trevino (A.G. 2008).  Hopefully, our unified message and team approach to Silva-Trevino litigation will continue to yield results!

Two months before leaving office, President George W. Bush’s Attorney General, Michael Mukasey, issued a landmark immigration decision overturning a century of jurisprudence regarding the analysis of criminal convictions for immigration consequences.  In a nutshell, the decision states that to determine whether a crime is a “crime involving moral turpitude” (CIMT), first an Immigration Judge looks to the elements of the offense and asks whether the crime categorically involves moral turpitude or not (the inquiry ended there for most of the last century).  If there is a “realistic probability” that the prohibited act sometimes does and sometimes does not involve moral turpitude, then the Court can look to the record of conviction to see if the specific case involves moral turpitude.  If the record of conviction does not yield an answer, the Court may consider evidence outside the record of conviction.  Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  The BIA quickly illustrated that while DHS has the ability to attach removal consequences in three different ways (if step 1 doesn’t work, try step 2; if step 2 doesn’t work, try step 3), the noncitizen in removal proceeding does not share the ability to detach immigration consequences based on the underlying circumstances of the conviction.  See, e.g., Matter of Louissaint, 24 I. & N. Dec. 754 (BIA 2009). 

As the AILA Amicus Committee reported last year, “Immigrant advocates, although caught completely unawares–the AG had never told Mr. Silva-Trevino, let alone the broader legal community, why the case was certified–reacted swiftly. Several organizations submitted an amicus brief to the AG urging reconsideration of his decision because of the defective process behind the certification, its inconsistency with a century of uniform precedent, and the negative practical consequences Silva-Trevino will have on the functioning of immigration and criminal systems.” 

To date, Attorney General Holder has been silent on this issue.  The administrative board he oversees, the BIA, continues to apply Silva-Trevino with vigor.  Most recently, the Board issued a precedent decision with the following headnote:

Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.

Matter of Guevara Alfaro, 25 I. & N. Dec. 417 (BIA 2011) (emphasis added).  Reading the headnote in isolation, one could conclude that every case addressing whether an offense is a CIMT now requires a “mini-trial” since step 3 (allowing the IJ to consider any evidence) swallows steps 1 and 2 of the inquiry.  Such a reading, however, contradicts the AG’s own words.  Silva-Trevino, 24 I&N Dec. at 703 (“allowing inquiry beyond the record of conviction does not mean that the parties would be free to present ‘any and all evidence bearing on an alien’s conduct leading to the conviction.’ … In many, if not most, cases, the judge will not have to go beyond the record of conviction, which includes the transcript of any plea.”). 

Unfortunately, this flawed headnote reading is already at play in Immigration Courts.  For example, an Atlanta Immigration Judge had terminated proceedings in a case presenting the question whether Georgia’s public indecency statute was a CIMT.  The IJ had terminated proceedings, finding that Georgia’s public indecency statute was not categorically a CIMT (Matter of Mueller, 11 I&N Dec. 268 (BIA 1965)), and the conviction record failed to evidence a lewd or evil intent.  DHS filed a Motion for Reconsideration.  Guevara Alfaro was released while the DHS motion was pending, and DHS immediately notified the IJ of the BIA decision.  The IJ denied DHS’s Motion for Reconsideration, but, in doing so, applied all three steps of Silva-Trevino.  This exercise prolonged the respondent’s detention for several more weeks.

Understanding Guevara Alfaro requires reading beyond the headnote.  The specific question before the Board was whether “the substantive holding with regard to statutory rape offenses in [Silva Trevino] is limited to cases in which the defendant knew or should have known the victim’s age, and the question whether the respondent’s case meets that criterion can be determined only upon application of the third step of Silva-Trevino’s procedural framework.”  Id. at 419.  The Board concluded in determining whether an “indecency with a child” conviction was a CIMT, an additional inquiry would have to be made to determine whether respondent knew or should have known the age of the victim.  This does not mean that such an additional inquiry would be necessary in “many, if not most” cases.  The Guevara Alfaro headnote, however, does not make any such limitation.  The application of this case is just the latest example of “circumstance-specific” analysis run amuck.

Prior to Silva-Trevino, we have a century of jurisprudence that gives prosecutors, criminal defendants and their attorneys general guidance as to what is and what is not a CIMT, in an age where “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  We have a century of jurisprudence which promotes the uniform application of the law to similar convictions (regardless of disparate underlying facts).  We have a century of jurisprudence that promotes the efficient adjudication of removal matters.  Silva-Trevino and its progeny turn these principles on their head.

Our current Attorney General needs to hit the “reset” button and get us back to established precedent – which is just in its sheer simplicity — “Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.” United States ex rel. Robinson v. Day, 51 F.2d 1022, 1023 (2nd Cir. 1931) (L. Hand, J.). 

Mr. Holder, where art thou?

It has now been 4 ½ years since the Adam Walsh Child Protection and Safety Act (AWA) took effect. Designed to “protect the public from sex offenders and offenders against children,” the AWA made several revisions to the INA, making U.S. citizens and lawful permanent residents with certain criminal convictions disqualified from filing visa petitions for their family members or fiancées. A person found to have a conviction for a “specified offense against a minor” is excluded from eligibility to file a family-based petition on behalf of any beneficiary, unless the Secretary of DHS finds, in his or her “sole and unreviewable discretion,” that the petitioner presents “no risk” to the proposed beneficiary.

For the first several years after its implementation, visa petitions found to potentially fall within the ambit of the AWA were backlogged at USCIS, as the agency developed uniform procedures for processing the applications. In September, 2008, however, the Service issued a Standard Operating Procedure module for the adjudication of AWA petitions, leading to an increase in the pace of adjudications.

As more and more AWA decisions are issued, the Amicus Committee is interested in tapping into the collective experiences of AILA members around the country with AWA adjudications. We feel there are several, unresolved issues regarding the scope, standards and reviewability of the AWA, and the Committee hopes to be involved with—or at least aware of—any pending or contemplated legal challenges to the law.

Among the issues that we feel need additional clarification are the following:

▪   Whether the categorization of a particular conviction as a “specified offense against a minor” is done using the categorical approach, or is made with an inquiry into the specific facts of the offense? In general, the categorical approach has been adopted by courts when analyzing statutory construction in the context of immigration law. However, at least one circuit court has already rejected that approach, at least for that portion of the AWA dealing with the creation of a national sex offender registry system. In U.S. v. Dodge, the Eleventh Circuit allowed an examination of the facts of a defendant’s underlying conduct in determining what constitutes a “specified offense against a minor.” 597 F.3d 1347 (11th Cir. 2010), petition for cert. denied (U.S., Oct. 12, 2010 No. 09-11207). The Amicus Committee would be interested in any AWA decisions showing what approach is currently being taken by USCIS in AWA adjudications.

▪   Whether the definition of “conviction” found at INA § 101(a)(48)(A)—which, by its own terms, is applicable only “with respect to an alien”—is being applied by USCIS to USC petitioners. There is a strong argument that a diversionary disposition of a criminal charge, resulting in something other than a judgment of conviction, should prevent the triggering of an AWA petition bar for a USC petitioner. The Committee, therefore, would be interested in hearing about any cases in which the Service did apply (or rejected) the expanded definition of “conviction” to deferred adjudications for USC petitioners.

▪   In interpreting the statutory mandate that a discretionary exception to an AWA bar be available to a petitioner who poses “no risk” to the alien beneficiary, the Service has adopted, as a matter of policy, the highest possible burden of proof—beyond a reasonable doubt. Does the use of this heightened burden go beyond the express terms of the statute? And is it a permissible use of the agency’s discretion? Last year, the AAO reaffirmed the long understood principle that a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I & N Dec. 369 (AAO 2010), citing Matter of Martinez, 21 I & N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings). The only exception to this default standard would be those instances where a different standard was specified by law (for example, the heightened standard for proving the bona fides of a marriage entered into during proceedings). The AWA contains no language heightening the standard of proof. Therefore, it can be argued that the AWA should properly be read to require that a petitioner who has been convicted of a specified offense against a minor submit evidence that demonstrates, by a preponderance of the evidence, that he or she poses no risk to the safety and well being of the beneficiary. Have any practitioners raised similar arguments with the agency? What have been the responses?

▪   Which party—USCIS or the petitioner—bears the burden of proving that a conviction is, or is not, a specified offense against a minor? If the burden falls on the petitioner, as someone applying for a benefit, what happens in those situations where conviction records are no longer available, or are ambiguous?

▪   Where a petitioner is found to have been convicted of a “specified offense against a minor,” and the intended beneficiary is a minor, USCIS has adopted a rebuttable presumption of risk. Does the agency’s policy decision go beyond the reach of the statute?

▪   Under the terms of the AWA, the determination of whether or not the petitioner poses a risk to the beneficiary is made by the Secretary of DHS in his or her “sole and unreviewable discretion.” As a result, the BIA cases to date addressing the “no risk” prong of the AWA have been dismissed on jurisdictional grounds. A typical BIA denial reads as follows:

Since the Director has concluded that the petitioner failed to prove beyond a reasonable doubt that he does not pose a risk to the safety or well-being of the beneficiary, and that determination is unreviewable by this Board, the petitioner is not eligible to file a visa petition on behalf of the beneficiary pursuant to sections 204(a)(l)(A)(i) and 204(a)(l)(B)(i) of the Act.

But what about those situations where a petitioner raises the legal question of whether the Secretary applied the correct standard in making the risk assessment? Would that challenge be reviewable at the Board? The Committee feels that such a review would still be possible. Much like the jurisdiction-stripping provisions of the INA with regard to judicial review of discretionary determinations, there should still be room within the terms of the statute to allow for purely legal arguments. What has been the experience of practitioners to date with BIA jurisdiction over AWA claims?

▪   Are there Constitutional concerns raised by the limitations created by Congress on the ability of a USC or LPR to petition for a family member? On the one hand, the existing case law on this topic can be discouraging, with the Supreme Court repeatedly upholding Congress’s broad plenary powers to regulate immigration and citizenship issues. See, e.g., Knauff v. Shaughnessy, 338 U.S. 537 (1950); Shaughnessy v. Mezei, 345 U.S. 206 (1953); Kleindienst v. Mandel, 408 U.S. 753 (1972); and Fiallo v. Bell, 430 U.S. 787 (1977), all recognizing extremely broad Congressional plenary powers to exclude or expel immigrants. On the other hand, it may still be possible to craft a Constitutional argument by distinguishing this line of cases as focusing on the status of the immigrant, and not on the status of the petitioner. What have been the experiences of any practitioners raising Constitutional issues regarding an AWA petition denial?

▪   Finally, USCIS takes the position that the AWA applies to all petitions filed or pending on the date of enactment. But are any retroactivity concerns raised by situations where the conviction for a “specified offense against a minor” took place before the effective date of the AWA? Couldn’t it be argued that Congress’s creation of a bar to filing certain family petitions due to past conduct attached a “new disability” to that conduct, and is therefore impermissibly retroactive? What have been the experiences with any practitioners raising these concerns before the agency?

This list of issues is hardly exhaustive. As more AWA cases are filed with the Service, and challenged administratively and judicially, the exact boundaries of the new law will become increasingly clear.

For example, just recently, the Amicus Committee was notified of a pending AWA BIA appeal in which the Board requested supplemental briefing on several of the topics mentioned above. The Committee agreed to prepare its own amicus brief, and was in the process of drafting that document, when the Service suddenly moved the Board—after the case had been pending for over a year—for a remand, so that the agency could issue a new decision. It would appear that USCIS is maneuvering strategically to avoid further analysis of some of its policy decisions, or avoiding the issuance of a precedential decision from the Board.

Nevertheless, the Board’s unusual request for additional briefing certainly suggests that it has taken a keen interest in exploring the exact parameters of the AWA, and we can probably expect important AWA cases coming from the Board in the near future. You can help AILA in defining those boundaries by passing along your own experiences with the AWA, and suggesting other areas ripe for litigation.

One of the funniest parts of my job (in a sad way) is explaining to criminal defense attorneys, prosecutors, and state court judges that the INA’s definition of the word “conviction” differs from their ordinary sense of the word.  In 1996, Congress changed the definition of the word “conviction” to read as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).  Ignorance of the definition can result in disaster.  A criminal defendant can be subjected to mandatory detention and removal, even when a prosecutor and court do not desire a defendant’s exile from the United States.  North Carolina’s best example of this is its drug diversion program.  N.C. Gen. Stat. § 90-96.   A criminal defendant with a first-time drug possession charge is often offered this program to avoid a conviction.  Entry into “90-96″ requires a guilty plea or finding of guilt and placement on probation by a state court judge.  Once the conditions of probation are successfully completed, the drug possession charge is dismissed, and the criminal defendant may later become eligible to expunge the charge.  Id.  Even though this statute was designed and intended to promote rehabilitation and a second chance at life without carrying the “felon” label, North Carolina’s “90-96″ program seems to satisfy the INA’s definition of conviction.  See Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).

One would think the plain language of the statute is expansive enough, but of course some judges have stretched the boundaries of the word “conviction” further.  See, e.g., Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1279 (11^th Cir. 2009)(a state’s conviction of a minor in adult court is considered a conviction for immigration purposes); Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(holding that courts costs alone constitute a “penalty”). 

Therefore, it was refreshing to see a panel of the 4th Circuit recently embrace a more natural reading of the word “conviction.”  In Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011), the Court held that some criminal court adjudications conducted pursuant to Virginia’s first offender statute do not constitute convictions under the INA.  

“Crespo’s 1997 adjudication was pursuant to Virginia Code § 18.2-251, which applies to a first offender who ‘pleads guilty to or enters a plea of not guilty to possession of … marijuana.’ Va.Code Ann. § 18.2-251. After such a plea, ‘if the facts found by the court would justify a finding of guilt,’ the court may, ‘without entering a judgment of guilt,’ instead ‘defer further proceedings and place’ the offender on probation. Id. In his case, Crespo pled not guilty to the offense and the judge found facts justifying a finding of guilt and deferred adjudication over the Commonwealth’s objection. Crespo was sentenced to one year of probation, which he served without incident.”  Id. at 5-6 (slip opinion). 

The question thus became whether in deferred adjudication proceedings, a plea of not guilty combined with a judicial finding of facts “justifying a finding of guilt” satisfies the first prong of the INA’s definition of conviction.  The government argued such a finding “made by the judge under § 18.2-251 is the functional equivalent of a judge finding the alien ‘guilty’.”  Id. at 6-7.  The panel disagreed.  “[I]f the judge finding the alien ‘guilty’ was intended to encompass Crespo’s situation then the phrase ‘or has admitted sufficient facts to warrant a finding of guilt’ would be rendered superfluous since an alien’s plea of guilty would likewise encompass such an admission.”  Id. at 7.  The panel found the most natural reading requires that “the defendant’s guilt has been established by a trial, plea, or admission.”  Id.  An informal factual inquiry is not a trial.  Crespo made no guilty plea or admission.  Therefore, the first prong of the INA’s definition of conviction was not satisfied. 

The Crespo decision should encourage us all to re-examine our own State’s first offender statutes.  The above-referenced “90-96″ program, for example, is limited to a criminal defendant who “pleads guilty to or is found guilty.”  N.C. Gen. Stat. § 90-96(a).  What does it mean in North Carolina to be “found guilty”?  Is it analogous to Virginia’s judicial finding of facts sufficient to justify a finding of guilt, or is it analogous to a trial?  Thanks to Crespo, I look forward to finding out.

We are not certain what to make of oral argument in the recent en banc case, Nuñez-Reyes.  You can watch it for yourself here.  Although the court may dispose of the case without issuing a precedent decision, as we noted in a post-argument amicus letter-brief, the tone of the argument appears to be a warning to individuals residing in the Ninth Circuit that the state of the law regarding expunged drug convictions is about to change.

Some background: for the last 17 years, the law in the Ninth Circuit has been that a drug-related conviction expunged under a state-law analogue to the Federal First Offender Act, 18 USC § 3607(b), is not a conviction for immigration purposes.  See Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).  Garberding holds that there would be no rational basis for Congress to exempt federal convictions expunged under the FFOA from deportation (now, removal) consequences, but not state convictions that are expunged under similar state programs.  Consequently, under Garberding, a state expungement eliminates removal consequences of a controlled substance offense, if the offense is one that would have been subject to expungement under the FFOA, if the case would have been prosecuted in federal court.  The holding in Garberding has been held to apply even if the state program is not identical to the FFOA.  See, e.g., Dillingham v. INS, 267 F. 3d 996 (9th Cir. 2001).

Following Garberding, the Board of Immigration Appeals adopted the Ninth Circuit’s view that equal protection demands eliminating adverse immigration consequences of convictions that are expunged under state, and foreign, programs, even if they are not identical the FFOA scheme. Matter of Manrique, 21 I&N Dec. 58, 62-64 (BIA 1995).  But even before Garberding and Manrique, as a matter of policy the BIA held that certain expunged state drug convictions could not form the basis of deportation charges, as long as the conviction would have been subject to a similar treatment under the FFOA.  See Matter of Andrade, 14 I&N Dec. 651 (BIA 1974); Matter of Werk, 16 I&N Dec. 234(BIA 1977); Matter of Deris, 20 I&N Dec. 5 (BIA 1989).

After the enactment of the definition of conviction in IIRAIRA, now codified at INA § 101(a)(48), the BIA examined its precedent in light of the new definition.  Matter of Roldan, 22 I&N Dec. 512, 519-21 (BIA 1999).   The Board concluded, as a matter of law, that § 101(a)(48) INA, required it to overrule many years of precedent, and hold that offenses expunged under state analogues to the FFOA now constitute a “conviction” within the meaning of the statute.  Id. at 528.  The sole reason that the BIA held that these precedent decisions no longer have force was its conclusion (with which AILA disagrees) that Congress legislatively overruled the decisions when it enacted § 1101(a)(48)(A).

In petitions for review of combined cases, the Ninth Circuit revisited Garberding, and ultimately reversed Roldan, in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).  In Lujan, the court reaffirmed Garberding’s equal protection analysis.  Id. at 749.  It  also found that as a matter of statutory construction – independent of the equal protection analysis – that the new definition of conviction does not include convictions expunged under either the FFOA or comparable state programs.  Id. at 743 – 748.

In September 2010, the Ninth Circuit issued an order granting en banc review and vacating the panel decision in Nuñez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010)(per curiam), vacated 2010 WL 3816719 (9th Cir. September 24, 2010).  The en banc rehearing request, filed by the government, relied in part on a concurring opinion by Judge Graber, in which she criticized the so-called “equal protection rule” established in Garberding and followed in Lujan, and urged the court to revisit and overturn the rule.   Nuñez-Reyes, 602 F.3d at 1105 and 1107.  Along with the National Immigration Project of the National Lawyers Guild, AILA submitted an amicus brief to the en banc court, arguing that the holdings of Lujan and Garberding remain sound, and that the BIA erred when it interpreted §1101(a)(48)(A) in Matter of Roldan.  AILA argues that the plain language of the statute and applicable rules of statutory construction demonstrate that Congress did not intend for § 1101(a)(48)(A) to overturn either Ninth Circuit or BIA precedent concerning whether an expunged conviction under a state analogue program to the FFOA constitutes a ground of removeability.   While other circuit courts of appeal have affirmed the BIA’s interpretation, either as a matter of deference or because they agreed with it, they have failed to address key points raised by AILA and other amici, or in Lujan-Armendariz itself.  The Stanford Immigrants’ Rights Clinic on behalf of National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and Immigrant Defense Project also submitted an amicus brief, as did the Drug Policy Alliance on behalf of itself and other organizations.

Oral argument in Nuñez-Reyes occurred last month.  We asked for air time during oral argument, given that the Review Department of the California State Bar Court has recommended that Mr. Nunez’s counsel be temporarily suspended from the practice of law and placed on probation.  But we were rebuffed.  The video of the argument – well, we will let the judges speak for themselves.  In any event, counsel are well-advised to proceed with caution when advising clients in the Ninth Circuit about the immigration consequences of expungements under state analogues to the FFOA.  It is not clear whether Lujan will be upheld, or whether parts of it may be upheld while other parts are abandoned.  Further it is unclear, if Lujan is reversed, whether the new holding will be applied retroactively, or prospectively only.  The Immigrant Legal Resource Center has issued a practice advisory concerning representation of clients during this uncertain period while Nuñez is under review by the court.  For now, Lujan-Armendariz and Garberding are the law of the land within the Ninth Circuit.  But it is anyone’s guess as to how much longer that may be true.  Stay tuned to InfoNet and this blog for further developments.

by Kathy Moccio

Last summer a Minnesota Public Defender commented that the commonly held notion that immigration matters are collateral to the criminal cases of non-citizens “makes no sense at all. It’s part of their circumstances, just as much as if my client has chemical dependency issues. I have to be aware of that, and I need to give advice based upon what their circumstances are.”

On March 31, 2009 the Supreme Court agreed. In Padilla v. Kentucky, 559 U.S. ____(2010) the Court held that the Sixth Amendment right to counsel requires that non-citizen defendants receive competent immigration advice regarding the deportation risks of a plea. The Court’s recognition that deportation is inherently part of the punishment meted out to non-citizen defendants reflects the reality that immigration penalties are overly punitive. The decision paves the way for necessary changes to ensure the rights of the indigent, and others, are protected.

First, public defenders have notorious caseloads. In Minnesota budget cuts have resulted in attorneys handling double the ABA recommended caseload. Padilla clarifies the role of public defenders requiring them to focus on the immigration consequences that drive their clients’ decisions. While at initial blush this may seem a terrible burden to place on overworked attorneys, it actually frees public defenders to obtain immigration counsel to assist in the negotiation of more favorable plea agreements. This will likely alleviate the frustration and lingering doubt many attorneys struggle with when they negotiate a plea uncertain of its immigration consequences. Furthermore, working with competent immigration counsel enables public defenders to confidently argue for sentences that avoid devastating immigration consequences. The result is more effective and efficient representation which in turn benefits the criminal justice system.

Second, legislative fixes have to date inadequately protected defendants’ rights. State laws that require criminal law judges to warn defendants that a plea may carry immigration consequences amount to a warning to obtain competent immigration advice before entering a plea. Not all defendants are able to hire private immigration counsel. Padilla protects indigent immigrants who would otherwise be forced to plea without a full understanding of the immigration consequences. Furthermore, it protects immigrants who are located in jurisdictions that lack a vibrant immigration bar. This protection is particularly important for detained immigrants who are unable to travel to or call private immigration counsel.

The constitutional right to competent immigration counsel for non-citizen defendants provides needed protections against the deprivation of property, life, or all that makes life worth living. It’s not a radical idea. It’s not using the constitution to create a perfect world. It’s simply an important step towards justice.

What can we say about Nijhawan? The seminal U.S. Supreme Court case, Nijhawan v. Holder, 129 S. Ct. 2294 (2009), analyzed by some brilliant people (ILRC Practice Advisory here NIP/IDP Practice Advisory here ). Nijhawan is the first three steps that Wile E. Coyote takes off the cliff and then realizes that solid ground has disappeared. It’s something suppressed like a bad childhood memory since the case was issued. As often as the mantra “immigration law is always changing” is repeated, one could always return to one, known, truth: you never, ever, look at the facts underling a conviction to determine its classification in the INA. We know this because the Supremes told us so in Taylor, Shepard and James. Even Matter of Silva-Trevino instructs that the analysis of a potential crime of moral turpitude begins with the categorical approach. Maybe we exaggerate the negative aspects of the case. Perhaps we have misremembered the basis of the Nijhawan decision? After reading and re-reading, we are sorry to say, no.

The holdings are simple enough (1) A fraud offense that does not include the amount of loss as an element may still be an aggravated felony as described by INA § 101(a)(43)(M)(i) and (2) an individual’s admission that the victim lost over $10,0000 at sentencing is enough to prove the loss amount. Id. at 2302, 2303. But the holdings are not the juicy part of this case; at least not the holdings standing alone. Rather, it is this notion of a “circumstance-specific”
approach to analyzing offenses. This radical departure from our otherwise comfortable categorical world has not gone unnoticed by our opponents. We know of at least two cases pending at the Court of Appeals where the Office of Immigration Litigation is seeking a remand to the agency so it can have the first opportunity to decide whether or not an offense is “categorical” or “circumstance-specific,”citing Nijhawan. Apparently OIL also believes that the agency’s decision should be given deference. Does Nijawan provide any support for that position?

Here is where the cartoon physics come in hand. The question one always asked (at least we did) when Mr. Coyote was racing off the cliff – if he never looked down and realized the abyss below stretched on, would he have made it to the other side? Let us, for a moment, look ahead.

Fresh highlighter in hand, we printed a clean copy of Nijhawan and sat down to ponder OIL’s position. In the end, we are persuaded that their argument fails because the Court’s conclusion that aggravated felony fraud definition in the INA calls for a “circumstance specific” analysis relied heavily upon its ability to distinguish elements from non-elements of a criminal offense. This is inherently a criminal law inquiry over which the agency has no expertise and therefore not entitled to deference.

In one instance, the Court notes that the “in which” language of “in which the loss to the … victims exceeds $10,000”can theoretically refer to the elements or the facts involved in the actual commission of the offense, not to the elements of the offense, but concludes it must not be an element given that virtually no federal or state fraud offense that met the definition. Id. at 2301-2. Elsewhere, the Court notes that applying the categorical approach to a non-element fact would be problematic because it would require a special verdict on a fact that is not an element. Id. at 2303. Though far from direct holdings, recalling that the Supreme Court appeared nearly certain that the amount of loss to the victim is not an element of a fraud offense, where an offense is somewhat ambiguous, there may be room to distinguish Nijhawan.

A statue containing ambiguous language is not necessarily subject to a “circumstance-specific” approach. If the language clearly refers to a generically-described crime and there is even a chance that it describes an element of the offense, the categorical approach should apply. The Court admits that the Armed Career Criminal Act, the statute at issue in Taylor, includes ambiguous language that is still subject to the categorical approach. While the interpretation is more difficult where there is ambiguous language, some ambiguity where the language refers to crimes as generically defined as opposed to the way in which the offense was committed. Id. 2300.

By studying the decision we may not be able to remove Nijhawan from our list of least-favored-cases, but we can better defend against misapplications of the case and minimize further erosion of our beloved categorical approach. Don’t look down.

–Blogging by Maria Andrade, AILA Amicus Committee

Last December, the U.S. Supreme Court granted certiorari in CARACHURI-ROSENDO V. HOLDER (09-60) to consider whether “Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.” Last week, AILA signed on to an amicus brief submitted by 18 other “community groups, civil rights organizations, immigrant justice organizations and legal service providers.” The brief can be found here.

One of the 21-part definition of “aggravated felony” is a “drug trafficking crime (as defined in section 924(c) of title 18).” Section 924(c) defines the “drug trafficking crime” as “any felony punishable under the Controlled Substances Act [CSA].” Simple possession of a controlled substance is ordinarily a misdemeanor under the CSA. However, under the CSA, when a person unlawfully possesses a controlled substance after already sustaining a prior state or federal possession conviction, the prosecutor has the option of seeking a recidivist sentencing enhancement. If pursued successfully by the prosecution, this sentencing enhancement would convert what would normally be a misdemeanor into a felony. So, what if a person sustained two or more convictions for simple possession but the prosecutor never sought a recidivist enhancement, but could have? The Seventh and Fifth Circuit Courts of Appeal have concluded that a subsequent simple possession conviction could be considered an aggravated felony because, hypothetically, the offense could have been prosecuted as a felony. So far, four other circuit courts and the BIA disagree with the 5^th and 7^th Circuits. The Supreme Court took the case to resolve the Circuit split.

Attorneys for Carachuri submitted a brief which examines the statutory language and effectively argues why the “hypothetical felony” rule is bad law. The Amicus brief examines the impact of the “hypothetical felony” rule on the lives of immigrants with minor criminal records. Using examples from real cases, the authors paint a grim picture of long-time residents being separated from family in the United States based solely on minor drug convictions. They also detail success stories of aliens granted relief from removal outside the 5^th and 7^th Circuits. The Amicus Brief in Carachuri represents a refreshing departure from our system’s robotic and unemotional adherence to statutory interpretation. The Amicus Brief asks more matter-of-fact questions: In light of the harsh consequences which flow from the “aggravated felony” label, does the 5^th and 7^th Circuits interpretation of the INA make sense? Does it make sense to stretch the law, and re-characterize misdemeanor acts as felonious acts, in order to forcibly deport permanent residents? In doing so, aren’t we categorically condemning the exact type of person (resident aliens with minor convictions but also established family and economic ties to our country) who would normally be deserving of a favorable exercise of discretion in Immigration Court?

It is my hope that as the Justices examine Carachuri’s statutory argument, they also take time to consider the impact of their ruling on the lives of the ordinary people, as effectively described in the Amicus Brief.