Sunday, July 5, 2009

Immigration: Supreme Court Reverses (Indirectly) a Ninth Circuit Immigration Case: Nijhawan v. Holder, 129 S.Ct. 2294 (2009)

The Supreme Court has concluded its 2008-2009 term by reversing fourteen out of fourteen Ninth Circuit cases but this embarrassing record does not include cases previously decided by the Ninth Circuit that are now overruled; Nijhawan v. Holder, 129 S.Ct. 2294 (2009). Federal law consists, in part, of two different statutes the courts have used but interpreted differently in unrelated contexts. Under the Armed Career Criminal Act (ACCA) a sentencing court may increase the sentence of a defendant in a criminal case who has been convicted of prior "violent felonies" as defined in the statute. Under a different Act, (INA) an alien convicted of an "aggravated felony" is subject to deportation if the fraud exceeds $10,000. A sentencing court in a current criminal case must determine whether a prior conviction, or plea, qualifies as a "violent felony" to enhance the sentence, or in a deportation hearing the IJ must determine whether the prior conviction is an "aggravated" felony warranting deportation. In each case the prior court proceedings are marginal or uninformative. In Nijhawan, the question becomes: what records of the prior proceedings can the IJ consider. The Supreme Court has used the terms "categorical approach" (generic definition of the crime) and "modified categorical approach" (fact specific circumstances) in attempting to resolve this issue in criminal cases and deportation cases respectively. Cases in the Courts of Appeal are legion. In Nijhawan, the Court ruled that the IJ judge should not read the ACCA definition of criminal fraud (generic ) into the civil proceeding of deportation if the petitioner was previously convicted of fraud. The IJ can consider not only the bare record of the prior conviction but the specific facts and circumstances of that case in determining whether the fraud exceeded $10,000. Although Nijhawan could be confined to its application of fraud statutes, it overrules the Ninth Circuit opinion in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) and the cases upon which it relies. The Ninth Circuit used the wrong test.

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