In a decision released this week, Va. Code Ann. § 18.2-51. Singh v. Holder, No. 08-20065, slip op. at 4. The Court noted that § 18.2-51 “defines two offenses.” Both are state felonies, but one carries a mandatory sentence of between one and five years, while the other carries a mandatory sentence of between five and twenty years.
In spite of the Court’s recognition that a conviction under § 18.2-51 could be for either of the two offenses, it nevertheless found that Singh’s conviction is an aggravated felony. Singh argued that § 18.2-51 is a divisible statute. Therefore, Singh went on, the 5th Circuit should follow its decision in Larin-Ulloa v. Gonzales, 462 F.3d 456, 467-70 (5th Cir. 2006), in which the Court held that the Kansas aggravated battery statute was divisible and that convictions under one section would not necessarily constitute an aggravated felony.
The 5th Circuit did not agree with this argument. It distinguished from Larin-Ulloa because in that case the non-citizen posited a number of hypothetical situations in which a violation of one of the two subsections of the aggravated battery statute would not constitute an aggravated felony. Singh v. Holder, No. 08-20065, slip op. at 5-6. According to the Court, Singh, however, failed to do that. Singh v. Holder, No. 08-20065, slip op. at 6. “Therefore, because Singh has offered no meritorious reason that his unlawful wounding conviction is not a crime of violence, and because unlawful wounding is punishable by imprisonment for at least one year, we hold that he was convicted of an aggravated felony within the meaning of the INA.” Singh v. Holder, No. 08-20065, slip op. at 7.
Not all hope is lost, though, for non-citizens with Virginia unlawful wounding convictions. This decision does not conclusively hold that a Virginia unlawful wounding conviction constitutes an aggravated felony. Rather, this is a very narrow ruling—one that is essentially a negative holding. That is, the 5th Circuit held that Singh failed to show that his conviction was not a crime of violence. The Court did not hold that all such convictions are crimes of violence.
Also, the 5th Circuit didn’t foreclose the possibility that a hypothetical will one day come along to show that an unlawful wounding conviction is not an aggravated felony. It merely held that Singh did not provide such a hypothetical. Consequently, a ray of hope exists for the attorney who can devise a creative hypothetical!
Conviction Requires Sentence
The 5th Circuit also provided some clarity on the meaning of “conviction” under INA § 101(a)(48)(A). In this case, Singh argued that his “conviction” occurred on the date on which the jury found him guilty rather than the date on which he was sentenced. This was critical because Singh was found guilty in 1987, but he was not sentenced until 1998 (he fled the country after being found guilty, then tried to reenter many years later). An aggravated felony conviction on or after November 29, 1990 renders an individual ineligible for naturalization. 8 CFR § 316.10(b)(ii).
The 5th Circuit was persuaded by the interpretation of INA § 101(a)(48)(A) adopted by the Second and Third Circuits. Those circuits have followed Federal Rule of Criminal Procedure 32(k) which requires a sentence to complete the conviction requirements. Singh v. Holder, No. 08-20065, slip op. at 7. The 5th Circuit cited with approval this language from Third Circuit’s decision in Perez v. Elwood, 294 F.3d 552, 562 (3d Circ. 2002):
for the purposes of the INA, a conviction occurs when either (1) a “formal judgment of guilt of the alien [is] entered by a court,” 8 U.S.C. § 1101(a)(48)(A), (and such a judgment must “set forth the plea, verdict or finding, the adjudication, and the sentence,” FED[.] R. CRIM. P. 32(d)(1)); or (2) “a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt” and “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A)(i) & (ii).
Singh v. Holder, No. 08-20065, slip op. at 8. In other words, a “conviction” under the INA requires a formal finding of guilt and a sentence.