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Keywords

pleadomestic violenceguilty plea
statuteappealpleadomestic violenceguilty plea

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Tokatly v. Ashcroft

Facts

Naji Tokatly, a native of Syria and legal permanent resident, was convicted in 1997 in Oregon state court on charges of burglary in the first degree and attempted kidnapping in the first degree, pursuant to a guilty plea. In 1998, the government charged him with removability under 1227(a)(2)(E)(i) for having been convicted of a 'crime of domestic violence.' The immigration judge relied on testimonial evidence outside the record of conviction to determine that Tokatly's prior convictions qualified as 'crimes of domestic violence.'

In 1997, the alien was convicted in an Oregon state court on charges of burglary in the first degree and attempted kidnapping in the first degree, pursuant to a guilty plea. In 1998, the government charged him with removability under 1227(a)(2)(E)(i) for having been convicted of a 'crime of domestic violence.'

Issue

Whether the Immigration Judge erred in relying on testimonial evidence outside the record of conviction to determine that Tokatly was removable under section 237(a)(2)(E)(i) for having been convicted of a 'crime of domestic violence.'

Whether the Immigration Judge erred in relying on testimonial evidence outside the record of conviction to determine that Tokatly was removable under section 237(a)(2)(E)(i) for having been convicted of a 'crime of domestic violence.'

Rule

The Taylor v. United States, 495 U.S. 575 (1990) categorical and modified categorical approach is applicable to section 237(a)(2)(E)(i), meaning that neither the BIA nor the court may look beyond the record of conviction to determine whether the crime was a 'crime of domestic violence.'

We hold that the Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990) categorical and modified categorical approach is applicable to section 237(a)(2)(E)(i), and that neither the Board of Immigration Appeals (BIA or Board) nor this court may look beyond the record of conviction to determine whether the crime of which the alien was convicted was a 'crime of domestic violence' within the meaning of the statute.

Analysis

The court applied the categorical and modified categorical approach to determine that the Immigration Judge improperly relied on testimonial evidence outside the record of conviction. The court emphasized that the record of conviction did not establish that Tokatly's crimes were 'domestic' in nature, and thus the government failed to meet its burden of proving that the conduct constituted a predicate offense for removal.

Accordingly, we conclude that the Immigration Judge (IJ) erred in relying on testimonial evidence adduced at the immigration proceeding, including the petitioner's own admissions regarding the nature of his relationship with the victim, and in finding him removable under section 237(a)(2)(E)(i).

Conclusion

The appellate court granted Tokatly's petition and vacated the order of removal, concluding that his prior convictions did not qualify as 'crimes of domestic violence.'

The appellate court granted the alien's petition and vacated the order of removal.

Who won?

Naji Tokatly prevailed in the case because the court found that the BIA and the Immigration Judge erred in their reliance on evidence outside the record of conviction to determine removability.

Naji Tokatly prevailed in the case because the court found that the BIA and the Immigration Judge erred in their reliance on evidence outside the record of conviction to determine removability.

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