Monday, January 19, 2009

Salazar Quiceno (not precedential): Particularly Serious Crime And Limiting The Use Of Facts About Innocence

Salazar Quiceno v. Mukasey
December 17, 2008
Not Precedential
IJ Walter A. Durling
Judge Fuentes, Hardiman, and Garth. Opinion by Judge Hardiman. Dissent by Judge Garth.

For Salazar Quiceno, Michael Z. Goldman of Dechert in NYC. For the government, Jeffrey L. Menkin along with Ari Nazarov of OIL. Oral argument held.

IJ Walter A. Durling concluded that a particular armed robbery conviction was not a particularly serious crime so Salazar Quiceno could receive withholding of removal. The BIA overturned the IJ, ruling that particularly serious crimes are analyzed by focusing on the nature of the offense, not the likelihood of future misconduct. The BIA explained this in In re N-A-M-, 24 I&N Dec. 336 (BIA 2007).

The Third Circuit deferred to the BIA's approach. The Third Circuit also said it was acceptable for the BIA to ignore the IJ's factual findings about anything that happened during the crime's commission if it was inconsistent with a guilty plea. It is hard to understand without knowing more about the case (not explained in depth in a not precedential decision) why the Third Circuit came to this conclusion in this case. Logically, factual findings are allowed about the nature of a crime without necessarily relitigating the person's innocence of guilt. The problem might have been that the IJ viewed evidence about the nature of the crime to be evidence of innocence. The solution is that an IJ should view evidence about what happened to address the nature of the crime, not the person's guilt or innocence.

It is possible for the nature of a crime not to involve certain activities even though the person is clearly guilty (because the person pled guilty). That would not be relitigating the case -- it would be elaborating on the nature of the crime. Judge Garth makes related but different points in his dissent -- the BIA ignored key facts found by the IJ such as how no weapon was used and that the original sentence involved no term of imprisonment. In ignoring the IJ's findings, the BIA improperly made new factual findings, which is improper. See Sioe Tjen Wong v. Att'y Gen., 539 F.3d 225, 230 (3d Cir. 2008) (quoting 8 CFR 1003.1(d)(3)(i)); In re A-P-, 22 I&N Dec. 468, 476 (BIA 1999).

Judge Garth also points out that the BIA erred by going to a strange middle-ground area of looking at evidence beyond the categorical approach but still trying to impose limits -- the BIA looked at statutory elements, record of conviction, and the presentence investigation report. That's more than is allowed under the categorical approach yet less than is allowed under an expanded approach.

Judge Garth makes excellent points in his dissent. I would not be surprised if the case is heard again either on rehearing or with a further appeal.


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