Nijhawan: Sixth Amendment Non-Event Based On Government Concession?
The Supreme Court in Nijhawan held that “aggravated felony” for civil immigration purposes includes statutes with “circumstance-specific” characteristics, as opposed to statutes strictly defined by categorical elements. Because “aggravated felony” has significance for immigration crimes, we need to be aware of the decision. However, Nijhawan’s effect in our § 1326 cases should be limited by the government’s concession that, for the prior conviction to constitute an “aggravated felony” in the criminal context, the characteristics necessary to the “aggravated felony” definition must be proved to the jury beyond a reasonable doubt.
The alien in Nijhawan had a fraud conviction that did not have an element of loss over $10,000.00, but he stipulated to millions in loss at sentencing. The definitional section of “aggravated felony” – 8 U.S.C. § 1101(a)(43) – outlines dozens of potential prior convictions that can have devastating immigration consequences. Most prior convictions are defined categorically, based on the judicially recognized facts established by the jury instructions, the plea colloquy, or other judicially recognized facts. This case involved a prior conviction with a characteristic not usually included as an element – the amount of loss. In a decision authored by Justice Breyer, the Court unanimously held that the immigration authorities could establish “circumstances-specific” characteristics of the prior conviction, thereby disqualifying the alien from immigration benefits based on an “aggravated felony.”
Constitutional criminal procedural protections would make this case seriously troublesome if applied to the increased sentences for “aggravated felony” prior convictions under 8 U.S.C. § 1326(b). However, two Supreme Court cases set the stage for a government concession that sought to take Apprendi issues off the table:
• In Leocal, the Supreme Court stated in footnote 8 that the definition of “aggravated felony” had to be the same for both civil immigration and criminal purposes; and
• In Shepard, the Supreme Court held that, in the criminal context of the Armed Career Criminal Act, characteristics of the prior conviction that are not judicially established cannot be considered because, under the Doctrine of Constitutional Avoidance, use of extrinsic police reports would create a Sixth Amendment problem.
The government resolved the problem by making a concession that defeated the petitioner’s argument in favor of Taylor’s modified categorical approach: “The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, eliminating any constitutional concern.”
The kinds of cases we are likely to see in the criminal context with “circumstance-specific,” as opposed to “categorical”, characteristics are relatively limited: fraud and tax losses greater than $10,000 (§ 1101(a)(43)(M)); faking passports with an exception for first offenders aiding family members (§ 1101(a)(43)(P)); certain sex crimes “committed for commercial advantage” (§ 1101(a)(43)(K)). These issues are open to full litigation in the first instance in § 1326 cases. The Court noted in Nijhawan the evidentiary effect of the defendant’s stipulation on amount of loss as sufficient under the clear and convincing standard for the purposes of the civil immigration proceeding. Counsel for aliens facing these types of charges need to include in their tactical considerations the future potential uses of the record as establishing a prior conviction for immigration and criminal purposes.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
The alien in Nijhawan had a fraud conviction that did not have an element of loss over $10,000.00, but he stipulated to millions in loss at sentencing. The definitional section of “aggravated felony” – 8 U.S.C. § 1101(a)(43) – outlines dozens of potential prior convictions that can have devastating immigration consequences. Most prior convictions are defined categorically, based on the judicially recognized facts established by the jury instructions, the plea colloquy, or other judicially recognized facts. This case involved a prior conviction with a characteristic not usually included as an element – the amount of loss. In a decision authored by Justice Breyer, the Court unanimously held that the immigration authorities could establish “circumstances-specific” characteristics of the prior conviction, thereby disqualifying the alien from immigration benefits based on an “aggravated felony.”
Constitutional criminal procedural protections would make this case seriously troublesome if applied to the increased sentences for “aggravated felony” prior convictions under 8 U.S.C. § 1326(b). However, two Supreme Court cases set the stage for a government concession that sought to take Apprendi issues off the table:
• In Leocal, the Supreme Court stated in footnote 8 that the definition of “aggravated felony” had to be the same for both civil immigration and criminal purposes; and
• In Shepard, the Supreme Court held that, in the criminal context of the Armed Career Criminal Act, characteristics of the prior conviction that are not judicially established cannot be considered because, under the Doctrine of Constitutional Avoidance, use of extrinsic police reports would create a Sixth Amendment problem.
The government resolved the problem by making a concession that defeated the petitioner’s argument in favor of Taylor’s modified categorical approach: “The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, eliminating any constitutional concern.”
The kinds of cases we are likely to see in the criminal context with “circumstance-specific,” as opposed to “categorical”, characteristics are relatively limited: fraud and tax losses greater than $10,000 (§ 1101(a)(43)(M)); faking passports with an exception for first offenders aiding family members (§ 1101(a)(43)(P)); certain sex crimes “committed for commercial advantage” (§ 1101(a)(43)(K)). These issues are open to full litigation in the first instance in § 1326 cases. The Court noted in Nijhawan the evidentiary effect of the defendant’s stipulation on amount of loss as sufficient under the clear and convincing standard for the purposes of the civil immigration proceeding. Counsel for aliens facing these types of charges need to include in their tactical considerations the future potential uses of the record as establishing a prior conviction for immigration and criminal purposes.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 6/15/2009 02:12:00 PM
3 Comments:
How about "an act of juvenile deliquency involving the use or carrying of a firearm, knife or destructive device" 18 U.S.C. sec. 924(e)(2)(B). Or "involves the use of explosive." 924(e)(2)(B)(ii). Although the Nijhawan opinion does seem to exclude ACCA definitions. What about the "dwelling" requirement of a burglary as required in many recidivist statutes.
I haven't examined this case in much detail yet, but this could be profoundly important. Or maybe not.
I'm curious how Nijhawan could apply to 1326 cases where the "aggravated felony" under consideration would be under (43)(g) for theft. My reading is that the categorical approach would still apply, which is good, as I've devoted the last week to writing about it. Am I right? Someone help a besieged summer intern out!
How does this decision affect the immigration consequences of a fraud client? Since SCOTUS rejected a categorical or modified categorical approach in favor of a circumstance specific approach to determine whether loss exceeds
$10K for purposes of determining whether prior is agg felony, can immigration courts now consider relevant conduct and/or the restitution amount in the criminal case to determine the amount of loss? An immigration lawyer has advised me that the loss must still be the loss for the offense of conviction and, therefore, my bank fraud client can plead to a count charging him with a $5K fraudulent credit card transaction w/o sustaining an agg felony even though guideline loss and restitution will exceed $10K. My reading of Nijhawan makes me skeptical of this advice. Any thoughts out there?
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