Gertsenshteyn v. Mukasey, 2nd Cir. (9/25/08, case nos. 07-1183-ag)

CALABRESI, B.D. Parker, Underhill

Petitioner, a citizen of Ukraine who was convicted of violating and conspiring to violate 18 U.S.C. § 2422(a), prohibiting the enticing of individuals to travel in interstate or foreign commerce to engage in prostitution, filed PFR following BIA’s determination that he had been convicted of an aggravated felony.  In order to constitute an ag fel under 8 U.S.C. § 1101(a)(43)(K)(ii), INA § 101(a)(43)(K)(ii), the crime of which he had been convicted had to have been committed for commercial advantage.  The IJ, affirmed by the Board, held that his crime was an ag fel, relying on evidence in the record along with petitioner’s testimony, to conclude that the crime had been committed for commercial advantage, despite the absence of this element from the criminal statute in question.  The 2d Circuit reversed, holding that the Board had erred in considering evidence outside the record of conviction to find that petitioner had committed his offense for commercial advantage and rejecting the Board’s reasoning and gvt’s arguments that a new approach was warranted here.  The court then remanded to the Board to consider whether, within the legal framework that remained the law in the 2d Circuit (i.e., following either the categorical approach or modified categorical approach where the statute is divisible), petitioner’s conviction was an ag fel. 

DETAILED SUMMARY AFTER THE JUMP

Read opinion here:  

See previous blog entries summarizing other circuits' (mostly contrary) opinions on this issue:

Ali v. Mukasey (7th Cir. 4.4.08) (finding that the Board is not obligated to apply a categorical test to the CIMT determination)

Nijhawan v. Atty Gen'l (3d Cir. 5.4.08) (finding Taylor inapplicable to 10K loss in fraud AggFel case)

Arguelles-Olivares v. Mukasey (5th Cir. 4.22.08) (permitting use of PSR to show amount of loss in fraud case)

Kawashima v. Mukasey (9th Cir. 7/2/08) (finding 10K loss in 101(a)(43)(M) is element and was not proven, with concurrence urging rejection of strict application of Taylor's categorical test to immigration law, and particularly regarding 101(a)(43)(M).)

In front of the IJ, Petitioner argued that his crimes were not ag fels because they had not been committed for commercial advantage.  The IJ rejected this argument, finding that - based on a reading of the acts alleged in the indictment – both of Petitioner’s convictions were ag fels.  The IJ also found that petitioner’s offenses were particularly serious, thus rendering him ineligible for withholding.  The Board affirmed, concluding that the evidence in the record, along with Petitioner’s testimony during the removal hearing, clearly showed that Petitioner created a profit for the prostitution business for which he worked and was thus an ag fel. The Board also agreed that the conviction was for a particularly serious crime.  Concurring, Board Member Filppu stated that the law did not require the Board to apply the categorical/modified categorical framework, reasoning that, as commercial advantage was not an element of the offense, it must be subject to proof independent of the conviction record constraints. 

On appeal to the 2^nd Circuit, the parties agreed pursuant to a stipulation and order that the case would be remanded to the Board to consider whether the categorical approach applies and whether information beyond the record of conviction could be relied upon to determine whether Petitioner’s violation was for commercial advantage.  On remand, the Board held in a published, precedential opinion that the categorical/modified categorical approach did not apply here and that the record evidence showed that Petitioner’s crimes had been committed for commercial advantage and were thus aggravated felonies.  The Board stated that its ag fel determination required “two separate but related” inquiries: (1) whether the alien was convicted of one of the offenses described in the listed federal statutes (2) whether the offense was committed for commercial advantage.  In the Board’s view, the first inquiry required looking only at the conviction record. However, the second inquiry could involve looking beyond the statutory elements to the conduct underlying the offense, including evidence outside the conviction record.  Petitioner again filed a PFR with the 2^nd Circuit.

On appeal again, the court discussed the history of why the courts have applied the categorical approach to ag fel inquiries in the removal context:

“The primary reason was that 8 U.S.C. § 1227(a)(2)(A)(iii) – the provision of the INA that renders an alien removable for having been convicted of an aggravated felony (leaving to provision 8 U.S.C. § 1101(a)(43) the definition of “aggravated felony”) – uses the word “convicted.” That is, the INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally convicted of in a court of law. Thus “[f]or nearly a century,” the BIA recently observed, “the Federal circuit courts of appeals have held that where a ground of deportability is premised on the existence of a ‘conviction’ for a particular type of crime, the focus of the immigration authorities must be on the crime of which the alien was convicted, to the exclusion of any other criminal or morally reprehensible acts he may have committed.” In re Velazquez-Herrera, 24 I.& N. Dec. 503, 513 (B.I.A. 2008).”

The Taylor and Shepard categorical approach thus ensured proper focus on the conviction.  Moreover, the court noted:

“ (1) that “nothing in the legislative history [of 8 U.S.C. § 1227(a)(2)(A)(iii)] suggested a factfinding role for the BIA in ascertaining whether an alien had committed an aggravated felony, just as, in Taylor, nothing suggested such a role for the sentencing court in evaluating the factual basis of a prior burglary conviction,” and (2) that “the practical evidentiary difficulties and potential unfairness associated with looking behind [an alien’s] offense of conviction were no less daunting in the immigration [context] than in the sentencing context.” Dulal-Whiteway, 501 F.3d at 125-26 (internal quotation marks and citations omitted). In sum, our use of the categorical approach emanates from our understanding of what Congress intended when it drafted § 1227(a)(2)(A)(iii), a provision that, like the provision in Taylor and Shepard, requires the Government to prove the existence of a qualifying conviction in order to make its case.”

Here, however, as the court noted, the Board took a new approach, focusing entirely on the INA’s definition of “aggravated felony” in § 1101(a)(43)(K)(ii).  The court found that the Board’s discussion did not justify departure from its own, and the 2nd Circuit’s own, precedent:

“Phrased another way, the fundamental problem with the decision on review is this: The government’s position is that if the crime of which a defendant is convicted was done “nastily” it is, Congress had told us, an aggravated felony. But if it was done “benignly” it is not. That may well be so. But that does not alter what must be (and what may not be) examined to establish whether the crime of which the alien was convicted entailed nastiness or did not. To determine that, under our and Supreme Court precedents, the immigration court must look to what was required to convict the alien, i.e., the elements of the crime of conviction. If the elements include nastiness, all well and good. If they do not, then looking at whether there was in fact nastiness necessarily undercuts the whole basis of the categorical approach, which is that what the alien was convicted of determines whether the felony is an aggravated one and not (unless it is needed to convict) the particular manner in which the crime was committed.”

Moreover, the court rejected the Board’s argument that under the traditional approach § 1101(a)(43)(K)(ii) would be a nullity since the federal criminal statutes do not, for the most part, include language re: commercial advantage.  However, as the court pointed out, a number of state statutes which criminalize the offenses described in these federal statutes, do in fact contain such language.  In addition, the court doubted that retaining the categorical approach here is as difficult as the government asserted and found that this did not in any event justify such reasoning:

“We are aware that as Congress has expanded upon and particularized the INA’s definition of “aggravated felony,” immigration courts have been faced with a dissonance between (1) the aggravated behavior which the Department of Homeland Security, following Congress, says would make aliens’ prior convictions aggravated felonies and (2) the elements of the criminal statutes under which the aliens in question were actually convicted. But the burden of this dissonance falls on the Government: When the Government has decided to seek the removal of a lawfully admitted alien under 8 U.S.C. § 1227(a)(2)(A)(iii), the Government is obligated to prove that the alien’s conviction falls within the statutory definition of “aggravated felony.” See 8 U.S.C. § 1229a(c)(3)(A); Ibragimov v. Gonzales, 476 F.3d 125, 131 (2d Cir. 2007). That the Government finds that task difficult in some cases is no reason for immigration courts to renounce the restrictions that the courts have said the law requires.”

Thus rejecting the Board’s new approach of going below the record of conviction to decide whether Petitioner had been convicted of an aggravated felony, the court remanded to the Board to decide first whether the statute of conviction was divisible such that the modified categorical approach applied and, second, to apply either the categorical or modified categorical approach to Petitioner’s convictions.     

PFR granted, remanded to BIA to decide, in accordance with proper framework, whether petitioner was convicted of an ag fel.

Atty for Petitioner: Jesse Lloyd, Neil A. Weinrib & Associates, New York, NY

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.