As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT). This post will attempt to answer the question – when are the Immigration Courts allowed to look beyond the record of conviction to determine whether a conviction for simple assault is a CIMT?
EDIT: After the Fourth Circuit’s recent decision rejecting Silva-Trevino in Prudencio v. Holder, this approach is looking more and more vulnerable to attack. Check to see whether Silva-Trevino is still good law in your circuit. I discuss the Fourth Circuit decision here.
FURTHER EDIT – IMPORTANT: The Supreme Court’s June 2013 decision in Descamps v. US clarified when the modified-categorical approach is to be used for determining whether a crime is a crime of violence. This has completely changed the Fourth Circuit’s analysis of whether simple assault type crimes will be a crime of violence (and therefore a CIMT). See US v. Royal (4th Cir., Oct. 2013). I imagine that the situation is changing quickly in other circuits as well.
Under Silva-Trevino, Immigration Courts are instructed to:
(1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to the alien’s record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.
All of the United States circuit courts of appeals to address this issue to date have continued to stand on their pre-Silva-Trevino (S-T) analysis. See, e.g., Prudencio v. Holder, slip op. (4th Cir. 2012); Sanchez Fajardo v.US Attorney General, slip op. (11th Cir. 2011); Jean-Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009); Saavedra-Figueroa v. Holder, 625 F.3d 621, 628 (9th Cir. 2010) (“Silva-Trevino does not alter our categorical analysis.”); Guadardo-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010) (“We are bound by our circuit’s precedent, and to the extent Silva-Trevino is inconsistent, we adhere to circuit law.”); Kellerman v. Holder, 592 F.3d 700, 704 (6th Cir. 2010) (citing S-T but applying pre-S-T modified-categorical approach); Mata-Guerero v. Holder, 627 F.3d 256, 260 (7th Cir. 2010) (citing its pre-S-T decision, Ali v. Mukasey, where court held that “the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction.”).
If you are in a circuit that has not specifically addressed the issue, when are the Immigration Courts allowed to look beyond the record of conviction to determine whether a conviction for simple assault is a CIMT?
As a general rule, simple assault or battery is not considered a CIMT under the categorical approach, even if the intentional infliction of physical injury is an element of the crime. Matter of Fualaau, 21 I&N Dec. 475, 477 (BIA 1996). The Supreme Court recently held in Johnson v. United States that Florida Battery was not categorically a violent crime (which would be a CIMT) because “the element of ‘actually and intentionally touching’ under Florida’s battery law is satisfied by any intentional physical contact, ‘no matter how slight.’” See also Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010) (holding that Virginia’s crime of assault and battery against a family or household member is not categorically a crime of domestic violence).
The Board of Immigration Appeals (BIA) has held, however, that an assault or battery may be a CIMT where the crime “necessarily involves some aggravating factor that indicates the perpetrator’s moral depravity, such as the use of a deadly weapon or the infliction of serious injury on a person whom society views as deserving of special protection, such as children, domestic partners, or peace officers.” Matter of Ahortalejo-Guzman, 25 I&N Dec. 465, 466 (BIA 2011). This necessitates use of the modified-categorical approach to determine whether a simple assault qualifies as a CIMT.
Under the modified-categorical approach, courts look to the alien’s record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript, to determine whether the crime is a CIMT. If any of these documents show that the assault or battery involved an aggravating factor, there may be a CIMT.
Although Silva-Trevino does not seem to provide a rule for courts to follow regarding when they can look at evidence beyond the record of conviction, two BIA decisions may provide some guideposts. In Matter of Millian-Dubon, 25 I&N Dec. 197, 200 (BIA 2010), the BIA held that the immigration court properly looked at evidence in the police report, but only because “the signed guilty plea reflects that the respondent . . . stipulated to the police report . . . as the factual basis for his guilty plea.” In Matter of Ahortalejo-Guzman, 25 I&N Dec. 465, 468 (BIA 2011), however, the BIA rejected use of the police report, which indicated that the respondent was charged for an assault involving domestic violence, because “none of the respondent’s conviction documents indicates that he was convicted of a family violence assault.” (emphasis in original). There was no stipulation to the police report in the Ahortalejo case.
It’s important not to over-read the Ahortalejo decision, however, because in the underlying criminal case, the judgment and sentence specifically stated that the offense did not involve family violence, which may be a difficult statement to get the court to make. It is unclear the extent to which the BIA relied on this statement in its decision.
Comparing these two cases may indicate a safe-harbor for criminal defense attorneys crafting a plea – make sure that there is no stipulation or reference to the police report or other outside evidence in the colloquy or plea agreement.