Zimmer's Books

by William K. Zimmer, in Immigration Matters

The procedural history, facts of record, holding and rationale in Zamaro-Silvero v. Garland (February 23, 2023)   No. 21- 60324 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) charged that the Petitioner is subject to removal.

 

The Petitioner applied for cancellation of removal for nonpermanent residents.

 

The Immigration Judge denied the Petitioner’s application for relief.

 

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

 

The BIA affirmed the decision of the Immigration Judge.

 

The Petitioner filed a petition for review.

 

The Petitioner and the DHS filed a joint motion for remand, which was denied by the motions panel.

 

The Petitioner filed a motion to reconsider which was denied by the BIA.

 

Both the Petitioner and the DHS filed supplemental briefs asking the Fifth Circuit Court of Appeal to review whether the BIA’s denial of the motion for reconsideration was error.

 

 

Facts

• The Petitioner is a citizen of Mexico who entered the United States illegally in approximately 2000.   She is married to a United States citizen and has six children.
• In 2017, the Petitioner accidentally struck a pedestrian with her car and fled the scene of the accident.
• In 2018, she entered a guilty plea in state court for a third-degree felony per Texas Transportation Code § 550.021 and was sentenced to deferred adjudication for five years.
• The DHS charged the Petitioner with being present in the United States without admission or parole under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”).
• The Petitioner applied for cancellation of removal under section 240A(b)(1) of the Act (relating to nonpermanent residents).
• The Immigration Judge denied the Petitioner’s application, finding her conviction to be for a crime involving moral turpitude (“CIMT”) that rendered her ineligible for cancellation under section 237(a)(2)(A)(i)(I) of the Act.
• The BIA affirmed the Immigration Judge’s decision using the “modified categorical” classification approach for CIMTs in accordance with Garcia Maldonado v. Gonzales, 491 F.3d 284, 289 (5th Cir. 2007). 

 

Held

VACATED and REMANDED

 

Rationale

The Petitioner asserted that she was not convicted for a CIMT.

The Fifth Circuit Court of Appeal reasoned as follows:

• The Texas Transportation Code § 550.021, states:

(a) The operator of a vehicle involved in an accident that results or is reasonably likely to result in injury to or death of a person shall:

(1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;

(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;

(3) immediately determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and

(4) remain at the scene of the accident until the operator complies with the requirements of Section 550.023.

• Section 550.023 of the Texas Transportation Code defines the requirements of subsection (4).  In particular, it requires the operator of a vehicle to:

(1) give the operator’s name and address, the registration number of the vehicle the operator was driving, and the name of the operator’s motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle involved in the collision;

(2) if requested and available, show the operator’s driver’s license to a person described by Subdivision (1); and

(3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation.

• Section 550.021 of the Texas Transportation Code is divisible because it “includes alternative means of commission.” Garcia-Maldonado v. Gonzales, 491 F.3d 284, at 289 (5th Cir. 2007).
• Before Mathis v. United States, 579 U.S. 500 (2016), the Fifth Circuit Court of Appeal used the “modified categorical approach” by looking at an alien’s record of conviction to determine how the offense under review was committed to determine whether the offense involved moral turpitude  Garcia-Maldonado, 491 F.3d at 288 (5th Cir. 2003)).
• In particular, the Fifth Circuit Court of Appeal in Garcia-Maldonado had applied the (now outdated) modified categorical approach and looked at the actual underlying conviction, noting that the alien in that case had been convicted of failing to render aid.  It then held that the failure to render aid was a CIMT.  Garcia-Maldonado, at 289, 290.
• In the wake of Mathis v. United States, this analysis is incorrect.
• Under the categorical approach for classifying CIMTs described in Mathis v. United States, the proper focus is now on the minimum conduct prohibited by the statute, not on the convicted defendant’s particular actions by which the offense was committed.
• Therefore,  deportability under section 237(a)(2)(A)(i)(I) of the Act in the specific record under review hinges on whether failure to share information is a CIMT; not whether failure to stop and “provide any person injured in the accident reasonable assistance” is a CIMT.
• Since the BIA relied on Garcia-Maldonado which did not reach the question of whether failure to share information at the scene of a accident is a CIMT and the BIA did not answer it, the ordinary rule is to remand to allow the BIA an opportunity to address the matter in the first instance.  Negusie v. Holder, 555 U.S. 511, at 517 (2009).

 

Commentary

For those unfamiliar with the technical meaning of “categorical approach,” the categorical approach to classification of an offense in the context of immigration law consists of a direct comparison of the statutory elements of the offense under consideration (usually a State offense) to the statutory elements of the generic federal offense or federal offense referenced in the immigration statute that is being applied. 

If all of the elements of the offense under consideration match each of the elements in the generic federal offense or federal offense referenced in the immigration statute that is being applied there is no need for further inquiry.  The offense under consideration must fall into the statutory category described in the applicable immigration statute according to basic inductive reasoning.

The United States Supreme Court originated and described this hypothetical categorical approach as a means of narrowing the scope of classifying offenses as aggravated felonies to the comparison of statutory elements, rather than the facts underlying the offense under scrutiny.  Taylor v. United States, 495 U.S. 575 (1990) (“The sentencing court must generally adopt a formal categorical approach . . . looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the particular underlying facts.”).

Taylor v. United States involved the application of sentencing guidelines in United States District Court.  It serves, however, as guidance for application of the categorical approach in immigration proceedings.  The United States Supreme Court further reiterated that, under the categorical approach, courts “focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic [crime], while ignoring the particular facts of the case.”  Mathis v. United States, 136 S. Ct. 2243, at 2248 (2016).

Having broached the categorical classification approach, it is impossible to avoid mentioning the more expansive modified categorical classification approach.

Before resorting to a modified categorical approach, a distinction must be made between elements of an offense (which must be proven beyond a reasonable doubt) and the means of committing the offense (for which proof is not necessary to obtain a conviction, but might appear in the criminal statute). 

Quoting Mathis, the BIA acknowledged that “the divisibility of a State statute depends on whether State law establishes that statutory alternatives are discrete ‘elements’ or alternative ‘means’ of committing an offense. Mathis v. United States, 136 S. Ct. at 2256.”   Matter of Chairez-Castrejon, 27 I&N Dec. 21 (BIA 2017). 

The determination of whether parts of a State statute are “elements” or “means” typically involves a review of case law in the State where the conviction occurred.  As demonstrated by the Fifth Circuit Court of Appeal in Emmanuel Chukwuka Monsonyem v. Garland (June 7, 2022) No. 20-60952, decision makers may also resort to review of jury instructions, indictments, plea colloquies and plea agreements.

In short, an “element” of an offense must be proven beyond a reasonable doubt to obtain a conviction.  Whereas, the “means” of committing an offense is the way in which an offense is committed that need not be proven to obtain a conviction.

Once an offense under consideration for classification is deemed divisible, lawyers and judges can resort to the modified categorical approach.  This opens the door to review of indictments, jury instructions, plea colloquies and plea agreements.

What might seem confusing is that the same evidentiary material that would become available for reference when applying the modified categorical classification approach is scrutinized to determine whether or not the modified categorical classification approach should be used in the first place.

The categorical and modified categorical methods for classifying offenses under various categories described in federal law for immigration purposes are not the first or only examples of baffling immigration law complexity.  Chief Judge Irving R. Kaufman placed immigration law in the same dubious category as tax law with this opening comment in one of his appellate decisions:

We have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges.

See Lok v. Immigration and Naturalization Service, 548 F.2d 37 (2nd Cir. 1977).

 

Pereida v. Wilkinson

Here’s a United States Supreme Court decision to contemplate for those who have no fear of accelerated aging or are still young enough to assume the risk and are curious to explore the labyrinth of CIMT classification a little farther.

To be eligible for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, as amended ("the Act") an applicant must prove in addition to other criteria that the applicant "has not been convicted of an offense classified under sections 212(a)(2), 237(a)(2), or 237(a)(3)" of the Act (criminal grounds or document fraud grounds) (emphasis added).  See section 240A(b)(1)(C) of the Act. 

On March 4, 2021, The United States Supreme Court declared that the above cited statute means exactly what is says.  Pereida  v.  Wilkinson, 141 S. Ct. 754 (2021) 592 U. S. ____ (2021).

How does one prove a negative statement?

Have we reached the outer limits of use for the “categorical” approach in immigration proceedings?

On March 4, 2021, Justice Neil Gorsuch, writing for the majority, determined that an alien who had applied for cancellation of removal under section 240A(b)(1) of the Act did not carry the burden of proof that he had not been convicted of a disqualifying offense (i.e. a CIMT) when the record shows he had been convicted under a statute listing multiple offenses, some of which disqualify him for cancellation of removal (i.e. CIMTs), and the record is ambiguous as to which crime formed the basis of his conviction.  Pereida v. Wilkinson, 141 S. Ct. 754 (2021) 592 U. S. ____ (2021) No. 19–438. (slip op., at 1).

As a consequence, an applicant for cancellation of removal, who has been convicted of one or more crimes, must establish for which of the listed crimes the applicant had been convicted to eliminate any listed disqualifying offense.  

In short, the United States Supreme Court held that under section 240A(b)(1) of the Act, applicants for cancellation of removal must “prove a negative” that they have not been convicted of a disqualifying crime by proving conviction for any crime that is inconsistent with and eliminates the possibility that the conviction was for a disqualifying crime. 

This statutory burden of proof is not impossible, but can be difficult to shoulder.  A negative premise can be proven if one can affirmatively prove a fact or set of facts that is inconsistent with or contradictory to the premise sought to be negated.  Of course, inconsistent or contradictory facts must actually exist. 

Furthermore, according to Pereida v. Wilkinson, slip op. at 8-11, establishing inconsistent or contradictory facts to prove the absence of a conviction for a disqualifying offense cannot be accomplished hypothetically by use of the categorical approach for classifying offenses.

The operative facts in the record under review in Pereida v. Wilkinson are as follows:

The Department of Homeland Security ("DHS") initiated removal proceedings against the Petitioner for entering and remaining in the United States unlawfully, which the Petitioner did not contest.

While his immigration proceedings were pending, the Petitioner was convicted of a crime under a Nebraska statue having multiple paragraphs describing different, distinct crimes. See Neb. Rev. Stat. §28–608 (2008).

Nevertheless, the Petitioner sought to establish his eligibility for cancellation of removal under 240A(b)(1) of the Act.

The Immigration Judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not.

Because Nebraska had charged the Petitioner with using a fraudulent social security card to obtain employment, the Immigration Judge concluded that the Petitioner’s conviction was likely not for the crime of operating an unlicensed business, and thus the conviction likely constituted a CIMT.

The Board of Immigration Appeals and the Eighth Circuit Court of Appeal agreed with the Immigration Judge that the record did not establish which crime the Petitioner had been convicted of violating; but, because the Petitioner bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for cancellation of removal under section 240A(b)(1) of the Act.  Pereida v. Barr, 916 F. 3d 1128, at 1131, 1133 (8^th Cir. 2019).

In a nut shell, Justice Gorsuch reasoned that:

• The Act squarely places the burden of proof on the alien to prove eligibility for relief from removal.  See section 240(c)(4)(A) of the Act;
• although a person could hypothetically violate the Nebraska statute without committing fraud, application of the categorical approach implicates two inquiries—one factual (what was the Petitioner’s crime of conviction?), the other hypothetical (could someone commit that crime of conviction without fraud?), and the party who bears the burden of proving these facts bears the risks associated with failing to do so;
• in order to tackle the hypothetical question of whether one might complete an offense of conviction without doing something that involved moral turpitude, a court must have some idea about what the actual offense of conviction was in the first place, and that requires examination of historical facts;
• it is not the place of the United States Supreme Court to choose among competing policy arguments; and
• Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not yield a benefit.

It seems that some of the language in this opinion rejecting the categorical approach could have far reaching implications in terms of constraint for the expanding application of a hypothetical method (i.e. the categorical approach for classifying offenses) to classify offenses in immigration categories other than aggravated felonies. 

In particular, the majority opinion points out that the Petitioner's argument based on the categorical approach "overstates the categorical approach’s preference for hypothetical facts over real ones."  Pereida v. Wilkinson, at slip 8.

 

Application of the Categorical Classification Approach to CIMTs

Use of the categorical approach to classifying CIMTs is an example of applying the categorical approach to categories other than aggravated felonies.

In my opinion, there are two reasons that a hypothetical approach for classifying CIMTs appears unlikely to stand the test of time.

First, unlike the definition of aggravated felony under section 101(a)(43) of the Act to which the hypothetical classification approach was first applied in immigration cases, it seems that Congress, by using the term, “moral turpitude,” intended for a decision maker to determine the nature of the behavior underlying an offense (as reflected by the elements of such offense proven beyond a reasonable doubt) for the purpose of assessing whether an alien is morally undesirable for admission, or whose presence in the United States is undesirable based on flawed moral character, or whether an alien is an undeserving beneficiary of benefits provided in the immigration laws; all based on behavior. 

Actual behavior is relevant to the exercise of discretion as well as classification of criminal offenses. These purposes dictated by statute are distinct from the purpose of disabling provisions that utilize the aggravated felony definition. 

Aggravated felony classification consists of quantitatively matching the minimal definition of an offense by comparison to generic federal offenses found in or referenced in the definition of aggravated felony under section 101(a)(43) of the Act. 

The thrust of aggravated felony classification is not directly aimed at moral character or moral turpitude or behavior, but is strictly aimed at identifying a specified crime labeled by Congress as an “aggravated felony.”  The moral fiber of the individual convicted for an aggravated felony is irrelevant to the classification process or inquiry. 

Even though an alien convicted for an aggravated felony cannot establish good moral character under section 101(f)(8) of the Act, aggravated felony classification does not require evaluation of criminal behavior based on the moral implications of such behavior. 

As previously noted, the definition of aggravated felony under section 101(a)(43) of the Act does not include moral turpitude as an element.  Moreover, not all of the enumerated bars to establishing good moral character in section 101(f) of the Act share the same underpinning.  For example, any alien convicted for simple possession of more than 30 grams of marihuana cannot establish good moral character under section 101(f)(3) of the Act.

Second, there is no generic definition of a crime involving moral turpitude containing any specific elements with which to compare any State or federal offense. 

These are two reasons why I believe application of the same hypothetical aggravated felont classification method to the classification of crimes involving moral turpitude will not and should not survive over time.  Perhaps, the reader can think of other reasons that support this assessmnt or might disagree.  Only time will tell.

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