Safe Havens

 

The procedure for constructing a safe haven where a statute is not divisible is as follows:

 

            1.  Identify the statute of conviction.

 

            2.  Verify that the statute of conviction contains only one offense (with only one set of essential elements).  If this is not the case, the statute is divisible.  See § 6.20, infra.

 

            3.  Verify that the minimum conduct sufficient to violate the essential elements of the statute does not fall within the boundaries of the ground of deportation.  See § 5.56, supra.  If this is not the case, go to step 8, below.

 

            4.  Verify that the record of conviction does not contain any fact that would bring the conviction within the ground of deportation.  (The court should not consult the record of conviction with respect to a non-divisible statute, but may err and do so, especially where the age of the victim, domestic relationship, or amount of loss from a fraud offense are involved.  See § 6.22, infra.)

 

            5.  The charging paper must not allege essential elements, or even “facts,” that bring the conviction within the ground of deportation.  See § 6.24, infra.

 

            6.  The defendant must not in the plea agreement or during the plea hearing admit the commission of an act that brings the conviction within the ground of deportation.  See § § 6.25-6.36, infra.

 

            7.  The sentence and judgment must not bring the conviction within the ground of deportation.  See § § 6.36-6.40, infra.

 

            8.  Counsel may also wish to seek an alternative plea to a different conviction that is safe from an immigration standpoint.

 

The courts should not examine the record of conviction where a given statute (or subdivision of a statute) contains only one offense.  Instead, upon examination of the essential elements of that singular offense, as laid out in the statute and as interpreted by judicial decisions, if it is not possible to determine whether it necessarily falls within a particular category of deportable offense, the noncitizen is not deportable.[19]  That is to say, where there is only one possible set of elements of which the noncitizen was found guilty, the court can go no further.  To do so would mean going beyond the elements of the statute into the facts of the case.  The court may be left with a statute in which the minimum conduct does not invariably fall within the ground of removal, but in that case the party with the burden of proof should lose without further examination of the facts.

 

            For example, California Penal Code § 245(a) formerly prohibited assault with a deadly weapon, which was defined to include a range of different weapons, some firearms, some not.  In looking at the essential elements of the crime, as defined by statute, it is not possible to say that the minimum conduct necessary to constitute this offense involves a firearm, since it is perfectly possible to violate it by committing all the elements with a knife or baseball bat.  Under a proper analysis, which considers only the categorical analysis of the elements of the offense, a court cannot consider this a divisible statute, since it defines only one offense, even though the offense may be committed by a number of different means.[20]

 

The Courts have considered the record of conviction, which includes the indictment, plea, verdict and sentence, only where the statute is divisible, for the purpose of determining under which section or clause of the statute the conviction occurred. (See U. S. ex rel. Zaffarano v. Corsi, supra; U. S. ex rel. Valenti v. Karnuth, 1 F.Supp. 370 (N. D. N. Y., 1932); U. S. ex rel. Guarino v. Uhl, supra.)[21]

 

The categorical analysis does not consider the facts of the case.  Whether a gun or knife was used constitutes one of the facts of the case, rather than an essential element of the offense.  Therefore, a court should not look at the record of conviction to determine the facts of the offense, since they are irrelevant to the categorical analysis.

 

Some courts, even without a conclusion that the statute defining the offense is “divisible,” have considered not only the offense of conviction as defined by the statutory elements but considered facts contained in the record of conviction.  Other courts have accepted the proposition that the statute alone defines the offense, but still incorrectly conclude that some statutes are “divisible” in that they embrace both some acts which do, and other acts which do not, trigger deportability.  These cases mistakenly hold that when such a statute has been violated, it is permissible to look to the record of conviction, including the language of the charge contained in the indictment or information, to determine whether all possible acts conceivably coming within the language of the charge and the language of the statute necessarily trigger deportability.[22]  This is improper.  The determination of whether the “crime,” of which the defendant was convicted, triggers deportation depends entirely on the statutory elements, as augmented by judicial decisions interpreting the statute.  The record of conviction cannot properly add additional elements to the statute that are not in the offense as defined by the Legislature, and the court is precluded from examining the facts of the case, even if they are included in the record of conviction.[23]

[19] Likewise, where all the possible acts punishable by the statute involve moral turpitude there is no need to examine the record of conviction.  See, e.g., Sutherland v. Reno, 228 F.3d 171, 177 n.5 (2d Cir. 2000) (rejecting petitioner’s argument that BIA was required to look to record of conviction, since court determined that all offenses under the statute of conviction were crimes of violence); Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA 2001) (although statute contained discrete subsections, all offenses under all subsections were equally grounds for deportation).

[20] Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (if the statute defining the offense of conviction encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of offenses that are and those that are not crimes involving moral turpitude, and the record of conviction establishes conviction of a subsection defining a deportable offense).

[21] Matter of R, 2 I. & N. Dec. 819, 826-827 (BIA 1947).

[22] Matter of C, 5 I. & N. Dec. 65 (BIA 1953) (where Oregon contributing to the delinquency of a minor statute was broad enough to include acts which did and acts which did not involve moral turpitude, record of conviction merely stated that the respondent was convicted of the crime of contributing to the delinquency of a minor, but an examination of the information filed against him clearly showed the commission of certain lewd and lascivious acts which involved moral turpitude, the court held the crime involved moral turpitude).

[23] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).