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Ninth Circuit Expands the “Categorical Approach” to Evaluating the Immigration Effect of State Court Convictions

By Nadine Wettstein

In a deeply split decision, with separate concurring and dissenting opinions, the en banc Ninth Circuit significantly expanded the reach of its “modified categorical approach” for deciding whether a conviction was an aggravated felony or a crime involving moral turpitude.   The court overturned a prior en banc decision, Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), which had governed immigration cases arising in the Ninth Circuit since 2007.

The practical effect of the decision will be to allow immigration courts in the Ninth Circuit to examine more of the facts offered by the prosecution in the earlier, criminal proceedings.  Under a strict categorical approach, first outlined by the U.S. Supreme Court in 1990 (in Taylor v. U.S., 495 U.S. 575 (1990)), the immigration court was not to consider the particular facts underlying the conviction, but only the statutory definition of the conviction.  Courts were to consider the elements of the crime of conviction in general, and not try to evaluate the defendant’s alleged conduct.

Eventually, a “modified categorical approach” was developed.  Courts apply the modified categorical approach if the conviction is not categorically an aggravated felony, such as when the crime as described by the federal defining statute (e.g., “burglary”) does not match precisely how the crime is defined by the state law under which the person was convicted.  For example, INA § 101(a)(43)(G) says a “burglary” offense may be an aggravated felony.  However, the federal statutes and different states’ statutes define “burglary” differently.  Some require proof of more or different elements than others.

How the modified categorical approach operates in reality has been the subject of much litigation at all levels, from the immigration courts to the U.S. Supreme Court. In this latest iteration, the Ninth Circuit, in the critical words of one of the separate opinions, “has converted the modified categorical approach into a modified factual one.”  

The majority opinion in Aguila-Montes de Oca says the purpose of the modified categorical approach is to determine: (1) what facts the state conviction necessarily rested on, and (2) whether these facts satisfy the elements of the generic [federal] offense.  In making this determination, courts may look beyond the record of conviction and the requirements of the generic statute. Courts can avoid “evidentiary disputes” about the prior criminal proceedings, the majority opinion says, “by relying only on documents that give us the ‘certainty of a generic finding’ including ‘the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’”

In addition, the majority expressly overruled the “missing element” rule of Navarro-Lopez and subsequent cases relying on it. The “missing element rule” said that the modified categorical approach would not apply when the crime of conviction was missing an element of the generic crime.  When an element of the generic crime is missing, Navarro-Lopez said, logically a court never could find that the jury was actually required to find all the elements of the generic crime.   Reversing, the Aguila-Montes de Oca majority held that a missing-element statute can be examined under the modified categorical approach.  However, courts “must exercise caution in determining what facts a conviction ‘necessarily rested’ on.  It is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant.”  [emphasis in original]. 

Practitioners can be certain that this is not the last word from this court or others, as the government continues its policy focus on removal of people with even old and relatively minor convictions, and the courts apply the INA’s sometimes unforgiving provisions.