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Implications of Ramirez-Villalpando V. Holder

Appellate Law360
December 12, 2011

The Supreme Court has described the deportation of an individual from the United States as a "particularly severe penalty" and the "equivalent of banishment or exile." [1]  The severity of deportation is often intensified by the inability of many individuals in these proceedings to speak English, much less afford an attorney.  Despite the high stakes, the government often deports these individuals based upon unreliable and potentially erroneous clerical documents that these individuals have never before seen.  In a case now pending at the Supreme Court, the justices have been asked to end the government's practice of using unreliable evidence in deportation proceedings.

The case is set against the backdrop of federal law making non-U.S. citizens removable if a prior state-court conviction qualifies as an aggravated felony.  To make that determination, the Supreme Court permits consideration of certain documents in the state record of conviction.  The Court has said that only documents that are "made or used in adjudicating guilt" may be used by the government to satisfy its burden in deportation proceedings. [2]  Such documents include the charging document, the terms of a plea agreement or a transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant.  The Court has also opened the door to considering "comparable" documents.

In Ramirez-Villalpando v. Holder, [3] the U.S. Court of Appeals for the Ninth Circuit held that an abstract of judgment is a "comparable" document that the government may use to prove the underlying facts of a prior state conviction.  An abstract of judgment is a legal document prepared after a guilty plea by a court clerk that authorizes sentencing authorities to carry out the court's judgment and sentence.  The government's use of an abstract of judgment in Ramirez-Villalpando could result in the deportation of a lawful permanent resident who has resided in the United States for fifty years. 

The case is now pending at the Supreme Court.  In a petition for a writ of certiorari, the Supreme Court has been asked to decide whether an abstract of judgment is a reliable document made or used in adjudicating guilt that the government may use to determine the underlying facts of a prior conviction.  Five courts of appeals are divided on this question.  The Third and Fifth Circuits have held that abstracts of judgment may not be consulted to prove the nature of a prior conviction. [4]  The Ninth, Eighth, and Eleventh Circuits have held that abstracts may be consulted. [5]

The Supreme Court should end the government's practice of using abstracts of judgment in deportation proceedings because they are inherently unreliable.  An abstract of judgment is fundamentally different from the reliable documents that the Supreme Court has already permitted the government to use.  Unlike a charging document, plea agreement or a plea colloquy transcript, an abstract of judgment is not prepared by a court official at the time the individual's guilty plea is taken.  Instead, an abstract of judgment is prepared by a court official after the guilty plea is entered and after a sentence is imposed, raising the prospect that the hazy memory of a court clerk could result in an individual's deportation.

Nor does an abstract contain any explicit factual finding by the trial judge to which the defendant assented.  Unlike the documents already approved by the Court, which are designed to prove the facts of the crime through admissions from the defendant, an abstract of judgment is a clerical document prepared for the purpose of establishing the mere fact of conviction and the sentence imposed.  An abstract is simply a form requiring the clerk to specify the statute of conviction and the crime, and provides a very small space for the clerk to type the description.  Simply put, an abstract does not contain any information about the criminal acts to which the defendant admitted to the judge.

The government's reliance on abstracts of judgment represents only the tip of the iceberg in its effort to use unreliable documents in deportation proceedings.  While the Supreme Court has addressed the standard for using conviction documents prepared before or at the same time that a guilty plea is entered, the absence of any guidance from the Court with respect to documents prepared after a guilty plea has allowed the government to expand its use of unreliable documents to include minute orders, docket sheets, and certificates of disposition.  Lower courts are likewise divided over the use of these documents.

Ending the government's use of unreliable documents in deportation proceedings will go a long way toward ensuring that the particularly serious penalty of deportation is applied consistently throughout the United States.  The Ramirez-Villalpando is of tremendous importance because three of the conflicting circuit court decisions on this issue stem from circuits that cover the nation's border with Mexico and hear 80 percent of the country's immigration cases.  As a result, an individual could be removed from California or Florida based on a description of a crime in an abstract of judgment, but the same individual would not be removed from Texas based on the same conviction record simply by virtue of the jurisdiction in which they are charged with removability.  This is precisely the kind of conflict in the lower courts that requires Supreme Court resolution.

The Supreme Court will review the petition early next year.  The case is No. 11-415.

[1]               Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010).

[2]               Shepard v. United States, 544 U.S. 13 (2005).

[3]               645 F.3d 1035 (9th Cir. 2011).

[4]               See United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005); Evanson v. Attorney General of the United States, 550 F.3d 284 (3d Cir. 2008).

[5]               See Ramirez-Villalpando v. Holder, 645 F.3d 1035 (9th Cir. 2011); United States  v. Martinez-Vasquez, 2011 WL 3612197 (11th Cir. Aug. 17, 2011); United States v. Benitez-de los Santos, No. 10-3263, 2011 WL 3611479 (8th Cir. Aug. 18, 2011).