Sunday, December 21, 2008

Evanson: Aggravated Felonies Require The Modified Categorical Approach, Not The BIA's Expansive Approach

Evanson v. Mukasey
No. 07-2509
December 19, 2008

Judges Sloviter, Fuentes, and Aldisert. Opinion by Judge Fuentes.

For Mr. Evanson, Martin A. Kascavage (Schoener & Kascavage, Philadelphia). For the government, Michelle G. Latour, Virginia M. Lum, and Kohsei Ugumori (OIL).

It is a simple principle that when analyzing whether a conviction is a drug trafficking aggravated felony, the courts must follow the modified categorical approach and cannot immediately jump to items outside the record of conviction. The Third Circuit has made this clear for several years in Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004). The categorical approach is explained in Taylor v. United States, 495 U.S. 575 (1990) and extended it to convictions by guilty pleas in Shepard v. United States, 544 U.S. 13, 19-20 (2005).

It seems strange, then, that the BIA and the government made a futile attempt to ask the Third Circuit to ignore the well-settled approach to analyzing aggravated felonies by using the modified categorical approach. The Third Circuit's opinion makes it seem the BIA and OIL took indefensible positions.

One way a conviction can be a drug trafficking aggravated felony is the Hypothetical Federal Felony route -- would it have been a felony under the federal Controlled Substances Act? The modified categorical approach does not allow looking beyond the record of conviction to decide whether it would have been a felony under the CSA. OIL seemed to concede this in the appeal and instead tried a hopeless other argument -- that information in dismissed charges and factual comments in the judgment of sentence can be considered. (OIL did not even try to argue that testimony before the IJ could ever be used.) The Third Circuit held to its well-established case law -- information in a charging document about a criminal charge that did not lead to a conviction cannot be considered in the modified categorical approach. Also, factual assertions in the judgment of sentence cannot be considered because those facts are not necessarily admitted by the defendant.

Under the hypothetical federal felony approach, a conviction that could punish distributing a small amount of marijuana for no remuneration punishes conduct that is not a federal felony. Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). (Note that the BIA in Matter of Aruna, 24 I&N Dec. 452, 458 n.4 (BIA 2008) acknowledged this approach for cases in the Third Circuit and did not wish to extend this analysis outside of the Third Circuit.) Because this case did not state in the record of conviction how much marijuana was involved or whether there was any remuneration, it cannot be categorized as a hypothetical federal felony.

A second way that a crime can be a drug trafficking aggravated felony is the Illicit Trafficking Element Test -- if the state felony contains a trafficking element. The Third Circuit applies the same limitations on the record of conviction for this test as it did for the hypothetical federal felony approach.

The unnamed IJ had made the correct ruling -- ICE did not prove that it was an aggravated felony so Mr. Evanson could seek cancellation of removal to try to avoid deportation. Good thing federal courts have a chance to review the BIA's decisions -- it rescued the chance to return to the decision two years ago granting relief to Mr. Evanson. It is disturbing that some members of Congress have been trying to end federal court review of BIA decisions.


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