BIA: Illegal deportation doesn’t strip BIA of jurisdiction; says prosecutor’s report is part of record of conviction

By University of Denver Sturm College of Law

Jul 3, 2012

The Board of Immigration Appeals held that an illegal deportation carried out by DHS does not deprive the Board of jurisdiction to consider the deported individual’s appeal. Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) (Pauley, Guendelsberger, and Adkins-Blanch, Board Members). In addition, in deciding that the Arkansas residential burglary offense is an aggravated felony, the Board considered a prosecutor’s report as part of the record of conviction. Board Member Pauley wrote the panel’s opinion.

This case involved an LPR convicted as an accomplice to robbery, Ark. Code Ann. § 5-12-102, and residential burglary, Ark. Code Ann. § 5-39-201. After an IJ found Diaz-García removable for having been convicted of an aggravated felony, he appealed to the BIA. On appeal he argues that his accomplice conviction is not an aggravated felony. While his appeal was pending, DHS removed him; it admits to having done so “‘in error’.” Matter of Diaz-Garcia, 25 I&N Dec. at 795.

Before reaching the merits of Diaz-García’s claim that he was not convicted of an aggravated felony, the Board first addressed whether his removal from the USA stripped it of jurisdiction to hear his case. According to DHS, “8 C.F.R. § 1003.4 dictates that the removal of the respondent constitutes a ‘departure,’ the result of which is that the Board has no jurisdiction over the pending appeal.” Matter of Diaz-Garcia, 25 I&N Dec. at 796.

Relying on Sixth Circuit and Ninth Circuit decisions, as well as concerns about equity, the Board rejected DHS’s argument. Matter of Diaz-Garcia, 25 I&N Dec. at 796-97 (discussing Madrigal v. Holder, 572 F.3d 239, 244-45 (6th Cir. 2009) and Wiedersperg v. INS, 896 F.2d 1179, 1181-82 (9th Cir. 1990)). As the panel explained those decisions, a removal does not constitute a departure in the Sixth Circuit if it is forcible or in the Ninth Circuit if it is unlawful. Likewise, “[b]ased on our reading of the regulations, we find that an unlawful deportation or removal does not constitute a ‘departure’ for purposes of 8 C.F.R. § 1003.4.” Matter of Diaz-Garcia, 25 I&N Dec. at 797. To conclude otherwise, the Board added, would violate the principle of “[f]undamental fairness [that] dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien’s appeal.” Matter of Diaz-Garcia, 25 I&N Dec. at 797.

Having concluded that it retains jurisdiction, the Board then turned to the merits of Diaz-García’s argument. Arkansas’s accomplice statute, the Board first concluded, is divisible; therefore it’s necessary to use the modified categorical approach to determine whether he was convicted of an aggravated felony. Matter of Diaz-Garcia, 25 I&N Dec. at 797-98.

Here things get interesting. In what seems to me to be an unusual move, the Board turned to a document it described as “the prosecutor’s ‘short report of circumstances’ attached to the [judgment and commitment] order.” Matter of Diaz-Garcia, 25 I&N Dec. at 798. The Board explains that the criminal court judge “relied on” the prosecutor’s report, but it doesn’t say whether Diaz-García admitted any of these facts. This strikes me as an expansion of the record of conviction, which is usually limited to documents produced by the court or agreed to by the defendant. Even the Attorney General in Matter of Silva-Treviño suggested that the record of conviction includes only the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript. Matter of Silva-Treviño, 24 I&N Dec. 687, 699 (A.G. 2008). No document produced by the prosecutor is found in this list. Just because the judge “relied on” a particular document doesn’t mean that the defendant was found beyond a reasonable doubt to have committed the actions described in that document. This is why police reports can’t be used to determine that a conviction exists. Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996).

Furthermore, the Board doesn’t explain what the judge “relied on” the prosecutor’s report for. As the basis to accept a plea? For sentencing? These have different standards of proof and typically documents created for sentencing can’t be used to determine whether a conviction exists. See, e.g., Lara-Chacón v. Ashcroft, 354 F.3d 1148 (9th Cir. 2003).

The Board, however, goes ahead and uses the prosecutor’s report. Because the prosecutor’s report indicates that Diaz-García was present when the underlying residential burglary was committed, the Board concluded that “he was a second-degree principal as an aider and abettor present at the scene of the crime.” Matter of Diaz-Garcia, 25 I&N Dec. at 798. As such, his conviction as an accomplice to residential burglary, the Board determined, constitutes a burglary type of aggravated felony under INA § 101(a)(43)(G). Matter of Diaz-Garcia, 25 I&N Dec. at 798.