On September 17, 2012, the Ninth Circuit issued Young v. Holder, an important case which impacts the immigration consequences of many criminal convictions. The decision covers several issues, including two especially important rulings, which anyone dealing with criminal and immigration issues should know. The first addresses how immigration authorities read charging documents. The second ruling addresses when charging documents are not clear-must the government prove a conviction has immigration consequences, or must a foreign national prove that the conviction does NOT immigration consequences?
The Categorical Approach- look to the criminal statute, not the conduct.
To start, it is important to understand that the immigration consequences of crimes are usually based on what happened in criminal court, rather than an independent investigation of criminal conduct. (There are some key exceptions to this rule, however, which are not relevant here but should be discussed with an immigration professional if an applicant for immigration benefits has uncharged criminal conduct.)
To this end, immigration authorities use what is called the “categorical approach,” looking to the criminal statute under which a foreign national is convicted to see if it fits within the categories of an offense which carries immigration penalties. These categories include a “crime involving moral turpitude”, “crime of violence”, “offense related to controlled substances” or an “aggravated felony”.
For example, the California offense of petty theft is categorically a “crime involving moral turpitude”, which can carry a variety of immigration consequences. Theft is a “crime involving moral turpitude” for immigration purposes, even if the defendant was stealing a loaf of bread to feed a family member, or even if the defendant was actually innocent but plead guilty to avoid the risk of a long jail sentence.
In contrast, petty theft is categorically not a “crime of violence”. This is true even if the defendant used force or violence to commit the theft or escape prosecution, but that conduct did not lead to any convictions in criminal court.
The modified categorical approach- what if the criminal statute alone doesn’t resolve the issue?
Certain criminal statutes, however, may be violated a number of ways, some fitting an immigration category, others not. This was an issue in Young v. Holder, in which Mr. Young violated California Health and Safety Code § 11352(a) which, among other things, penalizes both the sale of, and the offer to sell, controlled substances.
Under immigration law, an “offense related to trafficking in a controlled substance” is classified as an “aggravated felony” and carries very severe penalties. It is not only a ground for removal (or deportation), but also makes foreign nationals ineligible for most benefits and defenses to removal. (As discussed above, there is also a separate ground of removal for offenses relating to controlled substances generally, without regard to whether there is an element of trafficking. Though severe, this ground is not an aggravated felony, and may leave a foreign national with more immigration defenses available.)
Not surprisingly, courts have held that the sale of controlled substances is a trafficking offense. On the other hand, the courts have also held that an offer to sell a controlled a substance is not a trafficking offense. Therefore, just looking at California Health and Safety Code § 11352(a) does not resolve whether Mr. Young was convicted of trafficking in controlled substances.
Since Mr. Young was convicted under a statute which includes both trafficking and non-trafficking offenses, how do immigration authorities figure out if Mr. Young’s conviction was for a trafficking offense? The answer is something called the “modified categorical approach”.
Under the “modified categorical approach” the immigration authorities look at criminal court documents to determine what part of a criminal statute the defendant violated. They look to the indictment, plea colloquy, disposition, and other documents composing the conviction record. The immigration authorities, however, will still not independently investigate criminal conduct, and will rely only on the conviction record.
In Young v. Holder, the Ninth Circuit addressed two key aspects of the modified categorical approach- how to read California charging documents, and who has the burden of proof to show that an offense falls (or does not fall) into an immigration category.
California charging documents- “and” really means “or”.
In California, prosecutors will often include all of the elements of a criminal statute in a charging document, even if the defendant may have only violated some of them. Further, those charging documents will often connect those elements together with “and”, even though the actual statute will use “or”. For example, Mr. Young’s charging document accused him, among other things, of both the “sale” and “offer to sell” a controlled substance.
In Young v. Holder, the Court found that despite how the charges are literally worded, prosecutors intend this language to refer to every way a defendant could violate the statute, not an allegation that the defendant actually committed each and every single form of wrongdoing listed in the statute. Therefore, despite how the charging document was written, Mr. Young’s guilty plea actually meant he admitted to the “sale” OR an “offer to sell” of a controlled substance (or one of the other ways the statute may be violated.)
This finding is very important, as it resolved an inconsistency in prior decisions on how to read this type of charging documents. Also, because this type of charging document is fairly common, it will be relevant for many cases.
After deciding the charging document did not establish what part of the statute Mr. Young violated, the court then reviewed the rest of the available conviction record to find the answer. After looking at those documents, however, the court found that they too were inconclusive. Because the modified categorical approach does not allow for independent investigation of Mr. Young’s conduct, there was no way to determine if he was convicted of a trafficking offense (the sale of a controlled substance) or one which did not involve trafficking (the offer to sell).
What happens if it is impossible to tell what type of offense is committed?
After determining the record was inconclusive, the court in Young had to address what happens if a conviction might, or might not, fit into a category of crimes with immigration consequences, and there is no way to know for sure. The answer is- it depends.
In some situations, it is the government’s responsibility to prove that a foreign national has committed a certain kind of offense. Most importantly, this applies if Immigration and Customs Enforcement (ICE) is trying to establish a foreign national can be deported because of a criminal conviction which fits a ground of removability. If the burden of proof is on the government, then an inconclusive record will be read in the foreign national’s favor. With this part of the decision, the court confirmed how the law had already been applied.
Therefore, if ICE tried to deport Mr. Young on the ground that he committed an aggravated felony drug trafficking offense, it would have had the burden of proof to support this claim. Given an inconclusive record, the government could not deport Mr. Young on the ground that he had committed a drug trafficking crime.
In other situations, however, the foreign national has the burden to prove eligibility for a benefit or defense to removal. Furthermore, many of these benefits and defenses are unavailable to people who have been convicted of certain categories of crimes. For example, after the government proved Mr. Young was deportable (on a ground other than a drug trafficking offense) he tried to submit a defense called cancellation of removal. This defense, however, is not available to people who have been convicted of aggravated felonies.
Overruling prior decisions, the court in Young held that if the conviction records are inconclusive as to whether a conviction is of a type which would bar relief, then foreign nationals do not meet their burden of proof to establish eligibility. Therefore, they will not be able to seek that benefit. Previously, the court held that an inconclusive record would be read in the foreign national’s favor, even for applications for which they have the burden of proof.
In this case, because the criminal court record was inconclusive, Mr. Young could not prove that he had not been convicted of an aggravated felony. Therefore, he was unable to apply for cancellation of removal, since that application requires him to prove his is not an aggravated felon. This is true, even though the government could not have deported him on the ground he was an aggravated felon, and instead had to rely on a different reason.
Who will this impact?
Since this case is so new, the government, attorneys, and foreign nationals are still trying to determine the impact of this case. Undoubtedly, there are some foreign nationals in removal proceedings who are seeking defenses such as cancellation of removal despite criminal records. They may need to reassess whether they can use those defenses now, especially if they had been relying on an inconclusive criminal record to establish eligibility.
Any foreign nationals with pending criminal matters, and their criminal attorneys, now need to be even more careful, especially when negotiating pleas. Because of the shifting burdens of proof, an inconclusive conviction may prevent the government from deporting some foreign nationals, while barring others from any defenses.
A primary issue will be whether the defendant is also removable on a ground separate from a bar to a defense in removal. For example, even though the government could not deport Mr. Young for an aggravated felony drug trafficking crime, they were able to proceed on a different ground based on his conviction for an offense related to controlled substances.
For this reason, undocumented criminal defendants are especially vulnerable after the Young case. Because they are without status, and can be deported for reasons unrelated to their criminal history, they will need an affirmative defense to remain in the United States if placed in removal proceedings.
Because they are both complicated and often very severe, the immigration consequences of criminal convictions have long required foreign nationals to be very careful in criminal proceedings, and to fully understand how any disposition will impact their ability to remain in the United States. The Young decision means that advice is even more important than before.