Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

NIJHAWAN changes Criminal Conviction Analysis

The manner in which Immigration Attorneys used to analyze whether a particular conviction is an aggravated felon has changed. It is necessary to look into the newly issued Supreme Court case NIJHAWAN to find out what must be done by the Immigration Attorneys and what should be done to try to help the criminal defendant. First, however, you should know the basic facts of this case. First, it was a defendant that committed fraud. In Immigration Law, it specifically states that an aggravated felony is one whereby the defendant commits fraud upon someone else in which the deceit to the victim is more than $10,000.

In this particular case, there was no amount specified in the judgment as to the amount that the victim suffered. However, in other documents in the file and in other parts of the proceedings there was information that the amount the victim suffered was $1,000,000U.S.. Therefore, the issue becomes what can the Immigration court, BIA or Circuit Courts look at in order to determine whether an aggravated felony as put forth under Immigration Law has been committed. Under the old TAYLOR analysis, it was quite limited what could or could not be looked at by the Immigration court to determine this. Without going into too much detail, there was analysis as to whether the it should be a ‘categorical’ or ‘non-categorical’ approach.

Nijhawan put forth a different type of analysis dealing with ‘circumstances’. Words such as “crime,” “felony, and “offense” sometimes refer to a generic crime (a “categorical” interpretation), and sometimes refer to the specific acts in which an offender engaged (“circumstance- specific” interpretation). The basic argument favoring the “categorical” interpretation rests upon the Taylor case. The categorical analysis rests heavily on interpretation of the statute, a breakdown of the language in the statute of the crime that was committed and an analysis as to whether the federal definition of the crime matched the actual crime the defendant was convicted under.

In Nijhawan, the Supreme Court stated that the Immigration Attorneys in this case would have to use the circumstance specific interpretation, not the categorical interpretation. Here, the analysis does not fall on the language of the statute, but the circumstances which is anticipated by the language of the statute. Thus, whereby Nijhawan was arguing that the Immigration Court should only be allowed to look at the charging documents, abstract of judgment and other very specific documents, the Supreme Court disagreed. The decision of the Supreme Court was unanimous. Thus, it will probably not be overturned anytime soon.

To make clear, Nijhawan states that in this particular case, the $10,000 threshold is NOT an element of the crime, and therefore, the categorical approach is not applicable. The jury in this case found Nijhawan guilty, but nowhere in any of the crimes that he was convicted is the amount of the deceit to the victim an element of the crime. If it is ‘element’ specific, then we must look at the specific facts giving rise to the conviction, not the statute itself. Keep in mind that the categorical approach is when looking at the general definition of the crime itself and still can be used if an elemental analysis is not called for.

As for documents that are permitted, it seems that under the Nijhawan ‘circumstance’ specific interpretation, the door has been opened considerably. Specifically, plea agreements, stipulations and the like will be admissible for the Immigration Court to be able to see. Thus, it seems that it has become more difficult for Immigration Attorneys to try to argue that certain crimes are not aggravated felonies. However, it does seem to fall on whether a particular crime involves using the categorical approach, or the elemental approach. As to which approach to use and as to which crime falls under either approach, I am certain there will be much litigation in the future.

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