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Patricia O'Connell
Senior Communications Manager

Wiley Rein Files Petition for Certiorari with U.S. Supreme Court in Important Immigration Case

September 29, 2011

On Thursday, September 29, Wiley Rein filed a petition for certiorari in the Supreme Court of the United States on behalf of a legal U.S. resident facing deportation in a closely watched immigration case.

Federal law renders non-U.S. citizens removable (and subjects criminal defendants to an enhanced sentence) if a prior conviction qualifies as an aggravated felony. To make that determination, the Supreme Court permits consideration of certain documents in the record of conviction. In Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court limited the documents that may be considered to those that are "made or used in adjudicating guilt," such as "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information."

In Ramirez-Villalpando v. Holder, 645 F.3d 1035 (9th Cir. 2011), the U.S. Court of Appeals for the Ninth Circuit looked beyond the documents identified in Shepard and approved the use of an abstract of judgment to determine the underlying facts of a prior criminal conviction. An abstract of judgment is a legal document prepared after a guilty plea by a court clerk in California that authorizes sentencing authorities to carry out the court's judgment and sentence. The Ninth Circuit held that an abstract of judgment could be used to establish that the petitioner had previously been convicted of theft of personal property and was therefore removable under federal immigration law.

The petition filed by Wiley Rein asks the Supreme Court to answer a question that five courts of appeals are now conflicted on: whether an abstract of judgment qualifies as a conclusive record that may be relied upon to determine whether a prior conviction qualifies as an aggravated felony under Shepard. The Third and Fifth Circuits have held that abstracts of judgment may not be consulted to prove the nature of a prior conviction under Shepard. 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). The Ninth, Eighth, and Eleventh Circuits have held that abstracts may be consulted. 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).

The petition takes on tremendous importance given that three of these conflicting decisions stem from circuit courts that cover the nation's border with Mexico and hear 80 percent of the country's immigration cases. As a result of the circuit conflict, 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. In this case, the Ninth Circuit's decision could result in the deportation of a lawful resident of this country for fifty years.

Attorneys from Wiley Rein's Appellate Practice, including co-chair Andrew G. McBride, and Brett A. Shumate, who argued the case in the Ninth Circuit, filed the petition in the Supreme Court. The Supreme Court will review the petition later this year.

To read the petition please click here.

To read the reply brief please click here.