Ninth Circuit Decision In Martinez-Perez v. Ashcroft
On August 2, 2005 the Ninth Circuit withdrew its flawed opinion in Martinez-Perez v Ashcroft, 393 F.3d 1018 (9th Cir. 2004) and issued a new opinion finding that the conviction in the case is not an aggravated felony. The ILRC's brief in support of the petition for reconsideration discusses the below issues in more detail, and will be available shortly at www.ilrc.org/criminal.html.The change from the original opinion relates to the modified categorical analysis, which immigration attorneys often refer to as the record of conviction and divisible statutes. The modified categorical analysis governs which documents relating to a prior conviction a reviewing body can consult in order to determine the specific elements of the offense of conviction.
In the new opinion the Ninth Circuit:
"The Court explained that the sentencing court can look only to “the charging document, written plea agreement, transcript of plea colloquy, and any explicit findings by the trial judge to which the defendant assented.” Id. at 1257. These are documents from which “a later court could generally tell whether the plea had ‘necessarily’ rested on the fact identifying the burglary as generic . . . just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case.” Id. at 1260; see also Corona-Sanchez, 291 F.3d at 1211 (explaining that the court can consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime). Charging papers alone, however, are never sufficient." (emphasis added)
ICE may try to limit the effect of this decision by asserting that an Abstract of Conviction coupled with a charging document is insufficient only when the offense charged is different from the offense pled to -- e.g. as here where robbery was charged and theft was pled to. Counsel should oppose this interpretation of Martinez, as well as argue straight from Shepard. While the Martinez court did note that the charged and pleaded offenses were different, it went on to cite the Shepard requirement that a record must contain a plea agreement, transcript, or other specific evidence of the actual elements pled to, in order to establish those elements as part of the offense of conviction.
"Further, because the administrative record does not include a plea agreement, a transcript of the plea colloquy, or a statement of the factual basis for the guilty plea, cf., Parilla v. Gonzales, No. 03-74010, slip op. at 8031-32 (9th Cir. Jul. 11, 2005), we likewise cannot determine whether Martinez pled guilty to the taking of property, without consent, with the criminal intent to deprive the owner of rights and benefits of ownership, as a principal and not as an aider or abettor, as required by the generic definition of a theft offense. Corona-Sanchez, 291 F.3d at 1205."
Katherine Brady, Esq. is a senior staff attorney at the Immigrant Legal Resource Center in San Francisco. Katherine Brady can be reached at the Immigrant Legal Resource Center by phone: 415/255-9499, ext 272, fax: 415/255-9792, or email: firstname.lastname@example.org
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.