News & Insights  |  Press Releases

Related Professionals

Practice Areas


Patricia O'Connell
Senior Communications Manager

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

August 1, 2012

On July 30, 2012, 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 Kwong v. Holder, 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 by itself 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 petition filed by Wiley Rein asks the Supreme Court to answer a question on which five courts of appeals are now divided: whether an abstract of judgment qualifies as a conclusive record that may be relied upon by itself 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. 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 Eighth, Ninth and Eleventh Circuits have held that abstracts may be consulted. See Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011); United States v. Martinez-Vasquez,438 F. App'x 795 798 (11th Cir. 2011); United States v. Benitez-de los Santos, 650 F.3d 1157, 1160 (8th Cir. 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 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. 

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

To read the petition, click here.