BIA Holds That, Under The Modified Categorical Approach, An Immigration Judge May Consider The Transcript Of A Plea Colloquy In Determining The Factual Basis Of A Plea.
On April 28, 2023, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a decision by the Immigration Judge (IJ) finding Respondent removable per INA § 237(a)(2)(A)(iii) as one convicted of an aggravated felony crime of violence. The case had previously been before the BIA in 2017, at which time it was remanded to the IJ.
Respondent adjusted status to lawful permanent resident in 2000. Thirteen years later he was convicted of aggravated assault under Arizona Revised Statutes §§ 13-1203 and 13-1204(A)(2) and sentenced to 3.5 years in prison; he was subsequently placed into proceedings and charged with removability as above. The charge was sustained but, as noted, the Board subsequently remanded the record to the IJ to determine under which subsection of § 13-1203(A) Respondent had been convicted. In 2019, the IJ again ordered him removed, concluding that Respondent had been convicted under § 13-1203(A)(2) and that a conviction under this subsection, in conjunction with § 13-1204(A)(2), constituted an aggravated felony crime of violence.
Respondent did not seek relief from removal before the IJ but appealed the holding of removability, contending that the record did not reflect a conviction pursuant to § 13-1203(A)(2) and that the IJ had “impermissibly sustained the removability charge by relying on an exchange between the judge, the respondent’s defense counsel, and the respondent during the change of plea hearing.”
Initiating its analysis, the BIA first noted that § 13-1203(A) provides that a person commits assault by:
- Intentionally, knowingly or recklessly causing any physical injury to another person; or
- Intentionally placing another person in reasonable apprehension of imminent physical injury; or
- Knowingly touching another person with the intent to injure, insult or provoke such person.
Further, explained the decision, the Ninth Circuit Court of Appeals, which has jurisdiction over this matter, has held that § 13-1203(A) is overbroad and divisible. Arizona state courts have also found that the 3 subsections are separate offenses. The Board therefore applied the modified categorical approach to determine if Respondent’s conviction was for an aggravated felony.
As set forth by the U.S. Supreme Court in Shepard v. United States, 544 U.S. 13 (2005), in applying the modified categorical approach, a court can consider certain documents, including the charging document, the terms of the plea agreement or the transcript of the colloquy between the judge and defendant in which the factual basis for the plea is confirmed, or “some comparable judicial record of this information.” At Respondent’s change of plea hearing, the trial judge and Respondent’s defense attorney had discussed the plea, with counsel finally stating the factual basis as, “Intentionally placed the other in reasonable apprehension of fear” and Respondent had verbally agreed. Thus, found the Board, Respondent had specifically pled guilty to a violation of § 13-1203(A)(2) as the IJ had permissibly considered the transcript from the change of plea hearing, in effect the plea colloquy between the court and defendant in which the plea’s factual basis was confirmed.
On appeal, Respondent argued that his case was analogous to that of United States v. Marcia-Acosta, 780 F.3d 1244 (9th Cir. 2015), in which the Court of Appeals found the district court had erred by relying on a plea colloquy where the defendant’s lawyer recited the statement of facts on defendant’s behalf, indicating an intentional mens rea, but defendant himself had not admitted to the mens rea element of the offense. The BIA stated that Courts of Appeal have taken different approaches “with respect to the degree to which a criminal defendant must signify assent to representations [by counsel] made in a plea colloquy,” and that it did not need to reconcile the various approaches here because, contrary to Respondent’s assertion, this case is distinguishable from Marcia-Acosta. There, the defendant had “specifically assented to the underlying factual basis and admitted to the elements of the offense”; here, Respondent verbally agreed with the enumerated elements of § 13-1203(A)(2) when the trial judge was clarifying the mens rea element.
The Board further distinguished Marcia-Acosta as a case where the court had not narrowed the exact offense of conviction through the modified categorical approach’s “actual conviction documents or pleas”, whereas here the language of the colloquy was found to mirror that of § 13-1203(A)(2). The BIA was therefore unpersuaded that the instant matter was governed by Marcia-Acosta.
Lastly, held the opinion, the factual basis for Respondent’s plea to aggravated assault with a deadly weapon under § 13-1204(A)(2), in which the underlying assault was committed by intentionally placing another person in reasonable apprehension of imminent physical injury under § 13-1203(A)(2) constituted a categorical crime of violence contrary to Respondent’s claim that the offense did not require the necessary level of force. The Board pointed out that, in fact, the Ninth Circuit had held that a conviction for aggravated assault under §§ 13-1203(A)(2) and 13-1204(A)(2) “does categorically constitute a crime of violence”. The appeal was dismissed. Matter of Cancinos-Mancio, 28 I&N Dec. 708 (BIA 2023).
