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Divisible Statute Analysis - Reasonable Probability Of Prosecution

by Norton Tooby and Joseph Justin Rollin

Traditionally, if consultation of the record of conviction did not establish that the defendant was convicted of a charge that invariably involved moral turpitude, the conviction would be presumed not to involve moral turpitude where the government bore the burden of proof. However, the United States Supreme Court recently made a statement that might be interpreted to suggest the noncitizen must also show a realistic probability that the state in fact prosecutes defendants for offenses that factually would fall outside the ground of deportation, instead of merely imagining a set of facts that would arguably fall within the crime but outside the ground of deportation.

As a result, immigration authorities may require the noncitizen to show a realistic probability of prosecution under the state statute for conduct that falls outside the ground of deportation. The paragraph giving rise to this issue arose in the aggravated felony context, where a specific aggravated felony category may be defined by a "generic" definition of the terms used, the Supreme Court stated:

Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

In James v. United States, the Supreme Court further expanded on this point in the context of determining whether attempted burglary qualified as on offense posing a "serious potential risk" of physical injury for purposes of the Armed Career Criminal Act. Citing Duenas-Alvarez, the court announced:

We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. . . . Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury-for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F.3d 653, 659 (C.A.D.C.2004). Or, to take an example from the offenses specifically enumerated in § 924(e)(2)(B)(ii), one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent.

Although counsel could argue that James applies in the context of determining whether a "risk" exists (as in 18 U.S.C. § 16(b) crime of violence cases), a number of courts have already cited this language in connection with Duenas-Alverez as applied to other grounds of removal.

Duenas-Alvarez and James could be said to be announcing two new tests - first allowing courts to look to the realistic probability that the state would apply the statute at issue to prosecute the conduct that falls outside the ground of deportation, as opposed to examining the minimum conduct punishable under the statute, and second, allowing the courts to ask only whether the ordinary and usual matter of commission of the offense would fall within a ground of removal, rather than requiring the court to examine the full range of conduct punished. This interpretation would alter the categorical analysis announced by Taylor, and reaffirmed by Shepard, without any discussion justifying such a wide-scale change in the law. In Duenas, however, the Supreme Court expressly reaffirmed and applied the normal categorical and modified categorical analysis, so this interpretation would not seem to be justified.

The Fifth and Ninth Circuits have taken different approaches to applying these cases. The Fifth Circuit appears to take a very narrow view -- requiring the noncitizen or defendant to provide either personal evidence (from his or her own case) or case law showing that the statute of conviction reaches conduct that falls outside the definition of the ground of deportation. In United States v. Ramos Sanchez, the court rejected the contention that an indecent solicitation statute at issue was overbroad because it could be used to prosecute a minor. Even though the statute at issue had been used to prosecute a 17-year-old for having sex with his 15-year-old girlfriend, the court found that case inapplicable, since the age of consent in Kansas was 16. The Fifth Circuit has also applied the James "ordinary and usual matter" test.

On the other hand, the Ninth Circuit does not require the noncitizen to provide "specific examples" of a state prosecuting people "for acts that would fall outside the generic definition of crimes of moral turpitude." Rather the court stated that:

The issue is not whether in some cases violators of section 32 have been involved in a crime of moral turpitude. The issue is whether everyone prosecuted under that section has necessarily committed a crime involving moral turpitude. There is nothing inherent in the crime of accessory after the fact that makes it a crime involving moral turpitude in all cases.

Likewise, in finding that the California offense of leaving the scene of an accident resulting in bodily injury was not a crime of moral turpitude, the Ninth Circuit found that looking to the statutory language, "a driver in an accident resulting in injury who stops and provides identification, but fails to provide a vehicle registration number, has violated the statute." The court then rejected the DHS's argument that such an offense would not be prosecuted:

We cannot . . . ignore the plain language of § 20001(a). Duenas-Alvarez does caution us against "conjur[ing] up some scenario, however improbable, whereby a defendant might be convicted under the statute in question even though he did not commit the act encompassed by the federal provision." United States v. Carson, 486 F.3d 618, 610 (9th Cir. 2007) (per curiam). But where, as here, the state statute plainly and specifically criminalizes conduct outside the scope of the federal definition, we do not engage in judicial prestidigitation by concluding that the statute "creates a crime outside the generic definition of a listed crime." Duenas-Alvarez, 127 S.Ct. at 822.

Other courts may also follow this analysis.

The Ninth Circuit is clearly right in holding that where non-deportable conduct falls within the plain language of the statute defining the criminal offense, no more proof is required. United States v. Grisel, 488 F.3d 844, 850 (9th Cir.2007) (en banc) (noncitizen need not meet Duenas realistic probability of prosecution test for crimes where "a state statute explicitly defines a crime more broadly than the generic definition"). If the immigration court, however, insists on proof of a reasonable probability of prosecution, counsel can attempt to provide it by the following means:

(1) Judicial decisions of the state of conviction showing prosecutions for conduct falling outside the ground of deportation would also clearly be sufficient.

(2) Unpublished decisions are equally probative of this point, since they reflect actual prosecutions for non-deportable conduct. Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. Jan. 23, 2008) (court of appeals cites unpublished California decisions to show that forgery is in fact prosecuted on the basis of genuine documents falling within the statutory definition of the state offense).

(3) Moreover, counsel can examine pattern jury instructions. If non-deportable conduct falls within them, it is very hard for the government to argue there is no realistic probability of prosecution, since every jury in every prosecution for violating that statute is instructed to convict, under the statute, for the non-deportable conduct.

(4) Counsel could also offer an affidavit of a state prosecutor or defense attorney as to the state's practices.

This article is drawn from N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 6.6(C) (3d ed. 2008)(forthcoming).