Jean-Baptiste Bado v. US (en banc)

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CM-1509
JEAN-BAPTISTE BADO, APPELLANT, 06/21/2018
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(DVM-1930-11)
(Hon. Jennifer M. Anderson, Motions Judge)
(Hon. Stuart G. Nash, Trial Judge)
(Argued En Banc June 14, 2016 Decided June 21, 2018)
Alfred D. Carry, with whom Moses A. Cook, D.C. Law Students in Court,
was on the brief, for appellant.
Lauren R. Bates, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney at the time the brief was filed, and Elizabeth
Trosman, John P. Mannarino, and Michelle A. Parikh, Assistant United States
Attorneys, were on the brief, for appellee.
Alice Wang, with whom Samia Fam, Public Defender Service, and Arthur B.
Spitzer, American Civil Liberties Union of the Nation‘s Capital, were on the brief,
as amici curiae, in support of appellant.
Kathy Doan, Heidi Altman, Claudia R. Cubas, and Rachel V. Jordan,
Capital Area Immigrants‘ Rights (CAIR) Coalition, were on the brief, as amicus
curiae, in support of appellant.
2
Before BLACKBURNE-RIGSBY, Chief Judge, GLICKMAN, FISHER, THOMPSON,
BECKWITH, and EASTERLY, Associate Judges, and WASHINGTON, and RUIZ,
Senior Judges.
Opinion for the court by Senior Judge RUIZ, with whom Chief Judge
BLACKBURNE-RIGSBY, and Associate Judges BECKWITH and EASTERLY, and Senior
Judge WASHINGTON, join.
Concurring opinion by Senior Judge WASHINGTON, at page 38.
Concurring opinion by Associate Judge THOMPSON, at page 47.
Dissenting opinion by Associate Judge GLICKMAN, with whom Associate
Judge FISHER joins, at page 56.
Dissenting opinion by Associate Judge FISHER, with whom Associate Judge
GLICKMAN joins, at page 60.
RUIZ, Senior Judge: Jean-Baptiste Bado appeals his conviction for
misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he
was denied the right to a jury trial guaranteed by the Sixth Amendment. The court,
sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right
to a jury trial to an accused who faces the penalty of removal/deportation1 as a

Chief Judge Blackburne-Rigsby was an Associate Judge of the court at the
time of argument. Her status changed to Chief Judge on March 18, 2017.

Senior Judge Washington was Chief Judge of the court at the time of
argument. His status changed to Senior Judge on March 20, 2017.
1
―The changes to our immigration law have also involved a change in
nomenclature; the statutory text now uses the term ‗removal‘ rather than
‗deportation.‘‖ Padilla v. Kentucky, 559 U.S. 356, 364 n.6 (2010) (quoting
Calcano-Martinez v. INS, 533 U.S. 348, 350 n.1 (2001)). ―A ‗removable‘
(continued . . .)
3
result of a criminal conviction for an offense that is punishable by incarceration for
up to 180 days. By itself, that period of incarceration does not puncture the six-
month line past which an offense is deemed ―serious‖ and jury-demandable. We
hold that the penalty of deportation, when viewed together with a maximum period
of incarceration that does not exceed six months, overcomes the presumption that
the offense is petty and triggers the Sixth Amendment right to a trial by jury. The
conviction is reversed and the case remanded for a jury trial.
I.
Appellant Jean-Baptiste Bado came to the United States on February 8,
2005, from Burkina Faso, where he was a pastor, fleeing at the time from
―systematic[] prosecut[ion] and torture[]for his political and religious beliefs.‖
Once in this country, he filed an application for asylum. His asylum proceeding
continued for several years. It was halted in 2011, however, when he was charged
______________________
(. . . continued)
individual is one whom the immigration authorities may lawfully expel from the
United States; both ‗deportable‘ and ‗inadmissible‘ individuals are ‗removable.‘‖
Coyomani-Cielo v. Holder, 758 F.3d 908, 909 (7th Cir. 2014) (quoting Zamora-
Mallari v. Mukasey, 514 F.3d 679, 687 n.2 (7th Cir. 2008)). In this opinion, we
use the terms ―removal‖ and ―deportation‖ interchangeably.
4
by information with three counts of misdemeanor sexual abuse of a minor2
because, if convicted, under U.S. immigration law he would be barred from
receiving political asylum3 and removed from the United States.4 Appellant
pleaded not guilty and demanded a jury trial, which was denied. At the bench trial,
appellant took the stand and contradicted the charges, calling into question the
complainant‘s credibility. He was acquitted of two of the charges but convicted of
one count. He was sentenced to 180 days and ordered to pay $50 to the Crime
Victims Compensation Program Fund and register as a sex offender for ten years.
The United States commenced deportation proceedings on the basis of the
conviction.
On appeal, a divided panel of the court reversed the conviction after
concluding that appellant‘s right to a jury trial had been violated. Bado v. United
States, 120 A.3d 50, 52 (D.C. 2015). On granting the government‘s petition for
2
D.C. Code § 22-3010.01 (2012 Repl.).
3
8 U.S.C. §§ 1158 (b)(2)(A)(ii) & (B)(i) (2012) (denying eligibility to
apply for asylum for those convicted of ―particularly serious crime[s],‖ a definition
which includes ―aggravated felon[ies]‖); 8 U.S.C. § 1101 (a)(43)(A) (2012)
(categorizing sexual abuse of a minor as an ―aggravated felony‖).
4
8 U.S.C. § 1227 (a)(2)(A)(iii) (2012) (providing that a person convicted of
an aggravated felony (such as sexual abuse of a minor) ―is deportable‖).
5
rehearing en banc, the division‘s opinions were vacated. Bado v. United States,
125 A.3d 1119 (D.C. 2015). After a further round of briefing by the parties and
amici curiae, and oral argument, we now hold that appellant has a constitutional
right to a jury trial. Therefore, we reverse his conviction and remand the case to
permit appellant to have a trial free from structural error 5 and to receive the ―basic
protection‖ of a trial before a jury. Sullivan v. Louisiana, 508 U.S. 275, 281-82
(1993).6
II.
The Sixth Amendment guarantees a bundle of trial rights to the accused in
―all criminal prosecutions.‖ U.S. CONST. amend. VI. The first of these is ―the right
5
See Fortune v. United States, 59 A.3d 949, 956 (D.C. 2013) (denial of the
right to a jury trial is a structural error, i.e., an error ―so intrinsically harmful as to
require reversal without regard to [its] effect on the particular trial‘s outcome‖).
6
Appellant argued that he was entitled to a jury trial in light of the nature of
the offense, ―lasting social stigmas and inescapable societal disapproval‖ resulting
from conviction of sexual abuse of a minor, and the combination of consequences
that attend conviction of that offense: incarceration for up to 180 days, the
possibility that he would be removed from the country, assessment of a monetary
fine to the Crime Victims Compensation Fund, and the requirement to register as a
sex offender for ten years. As we conclude that the combination of maximum
incarceration of up to 180 days and possible deportation entitles appellant to a jury
trial, we need not address the other grounds raised by appellant.
6
to a speedy and public trial, by an impartial jury . . . .‖ Id.7 The Supreme Court
has interpreted the scope of the jury trial right, in the light of the common law, as
applying to criminal prosecutions for ―serious offenses.‖ Duncan v. Louisiana,
391 U.S. 145, 157-58 (1968). Criminal prosecutions for offenses that are not
serious, but deemed to be ―petty,‖ may be tried by a judge without violating the
Sixth Amendment.
The Supreme Court has set the parameters of what constitutes a ―serious‖
offense under the Sixth Amendment. It is settled that any offense ―where
imprisonment for more than six months is authorized‖ cannot be considered
―petty‖ for purposes of the right to trial by jury. Baldwin v. New York, 399 U.S.
66, 67, 69-70 (1970) (noting that the distinction between ―felonies‖ and
―misdemeanors‖ is not the constitutional dividing line and that some
misdemeanors, such as ―jostling,‖8 are deemed serious offenses). In Blanton v.
7
Other rights guaranteed to the accused by the Sixth Amendment include
the right ―to be informed of the nature and cause of the accusation,‖ ―to be
confronted with the witnesses against him,‖ ―to have compulsory process for
obtaining witnesses‖ to present a defense, and ―to have the [a]ssistance of
[c]ounsel for his defen[s]e.‖ U.S. CONST. amend. VI. The right to a jury in the
―[t]rial of all [c]rimes‖ is also guaranteed by article III of the Constitution. Id. art.
III, § 2, cl. 3.
8
The statute on jostling was enacted to curb pickpocketing. Baldwin, 399
U.S. at 67 n.1. A person is guilty of jostling when that person ―intentionally and
(continued . . .)
7
City of N. Las Vegas, 489 U.S. 538, 541-42 (1989), the Court set out the analytical
framework to determine whether a particular offense punishable by incarceration
for six months or less is to be deemed ―serious,‖ triggering the constitutional right
to a jury trial, or ―petty,‖ leaving the question of a jury trial to resolution under
other applicable law. 9 Noting that the maximum exposure to incarceration is
______________________
(. . . continued)
unnecessarily‖ places a hand in the proximity of a person‘s pocket or handbag or
―[j]ostles or crowds another person at a time when a third person‘s hand is in the
proximity‖ of the same. N.Y. PENAL LAW § 165.25 (McKinney 2016). Jostling is
a Class A misdemeanor, punishable by no more than one year in jail. Id. § 70.15
(McKinney 2016).
9
Most jurisdictions, either pursuant to state constitutions or statutory law,
provide for a jury trial when a defendant faces the prospect of any period of
incarceration. See Senior Judge Washington‘s concurrence, post at 45 n.1; see
generally DAVID L. HEMOND, CONN. GEN. ASSEMBLY, CONN. L. REVISION
COMM‘N, BRIEF REVIEW OF RIGHT IN 49 STATES TO JURY TRIAL FOR MINOR CRIMES
(1998), https://www.cga.ct.gov/lrc/recommendations/1999%20recommendations/J
uryTrial49StatesRpt.htm.
The District of Columbia is an outlier in this regard. In the District of
Columbia, unless the Constitution provides otherwise, the statutory right to
demand a jury trial does not apply to offenses where the maximum exposure upon
conviction is 180 days or less, one day shy of the six-month constitutional marker
laid down in Baldwin, or a fine or penalty of less than $1,000. D.C. Code § 16-705
(b)(1)(A) (2012 Repl.); see Fretes-Zarate v. United States, 40 A.3d 374, 378 n.3
(D.C. 2012) (noting that this ―distinguish[es] the District from the vast majority of
the fifty states in our union [that] afford . . . a right to a jury trial to anyone charged
with a crime where there is a possibility of imprisonment for any period of time‖).
That limitation, together with the Omnibus Criminal Justice Reform Amendment
Act of 1994, 41 D.C. Reg. 2608, 2609-12 (codifying D.C. Law 10-151, an earlier
proposal entitled the Misdemeanor Streamlining Amendment Act), which reduced
the maximum period of incarceration for a number of misdemeanor offenses to 180
(continued . . .)
8
usually the clearest indicator of the seriousness of an offense, the Court, following
Baldwin‘s lead, stated that offenses with a maximum period of incarceration of six
months are ―presum[ptively] . . . petty.‖ Id. at 543. The Court, however, declined
to hold that all such offenses ―automatically qualif[y] as [] ‗petty‘ offense[s],‖ and
established that the presumption can be overcome ―if [the accused] can
demonstrate that any additional statutory penalties, viewed in conjunction with the
maximum authorized period of incarceration, are so severe that they clearly reflect
a legislative determination that the offense in question is a ‗serious‘ one.‖ Id.
In Blanton the Court applied that test to a conviction for driving under the
influence by assessing the statutorily authorized penalties that could be imposed
upon conviction for DUI: incarceration from a minimum of two days to a
maximum of six months, or, alternatively, 48 hours of community service dressed
in clothing identifying the convicted defendant as a DUI offender; a maximum
______________________
(. . . continued)
days, has had the intended effect of making more misdemeanor offenses triable
before a judge in the District of Columbia. See Burgess v. United States, 681 A.2d
1090, 1094-95 (D.C. 1996) (―[T]he [act] . . . reduced the maximum penalties for a
variety of crimes so as to make them non-jury-demandable.‖). The crime of
misdemeanor sexual abuse of a minor was enacted in 2007 and is punishable by up
to 180 days in jail and a maximum fine of up to $1,000. Omnibus Public Safety
Amendment Act of 2006, 53 D.C. Reg. 8610, 8613, 8634-35 (codifying D.C. Law
16-306); D.C. Code § 22-3010.01 (a) (2012 Repl.). Thus, the statutory right to a
(continued . . .)
9
penalty of $1,000; a 90-day suspension of a driver‘s license; and mandatory
attendance at an alcohol abuse education course at the offender‘s expense. 489
U.S. at 539, 544-45. The Court made clear that, in evaluating the seriousness of
the offense, it considered the ―maximum authorized prison sentence,‖ id. at 544
(emphasis in original), 10 and that it considered only those potential penalties that
are actually faced by the particular defendant, id. at 545, & n.12.11 The Court
reasoned that, because the maximum period of incarceration did not exceed six
months, the offense was presumptively petty. Id. at 544. It then ―[c]onsider[ed]
the additional statutory penalties.‖ Id. Of the distinctive garb required if the
person were alternatively sentenced to a short period of community service, the
Court stated that, even if it were ―the source of some embarrassment,‖ it would be
______________________
(. . . continued)
jury trial does not apply to this offense. See D.C. Code § 16-705 (b)(1)(A).
Appellant‘s claim to a jury trial is therefore based on the Sixth Amendment.
10
In using maximum exposure, the Court followed Baldwin‘s analysis:
―The possibility of a sentence exceeding six months, we determined, is
‗sufficiently severe by itself‘ to require the opportunity for a jury trial.‖ Blanton,
489 U.S. at 542 (emphasis added) (quoting Baldwin, 399 U.S. at 69 n.6). See
Frank v. United States, 395 U.S. 147, 149 (1969) (―In ordinary criminal
prosecutions, the severity of the penalty authorized, not the penalty actually
imposed, is the relevant criterion.‖).
11
The Court noted that it would not consider possible enhanced
incarceration for repeat offenders because the petitioners in the case were first-time
offenders; it left open the question ―whether a repeat offender facing enhanced
(continued . . .)
10
―less embarrassing and less onerous than six months in jail.‖ Id.12 The Court
considered the license suspension and concluded it was not ―that significant‖ as a
Sixth Amendment matter, in part because the record was unclear as to whether the
suspension would be concurrent with the six-month incarceration, in which case it
would be ―irrelevant,‖ and because a restricted license could be obtained after
forty-five days. Id. & n.9.13 The Court dismissed the mandatory alcohol abuse
education course as a ―de minimis‖ requirement. Id. at n.9. After taking into
account all of the possible maximum statutory penalties that could be applied to the
defendant, the Court concluded that ―[v]iewed together, the statutory penalties are
not so severe that DUI must be deemed a ‗serious‘ offense for purposes of the
Sixth Amendment.‖ Id. at 545. The Court applied a Blanton analysis one other
time, in United States v. Nachtigal, another case that involved operating a motor
______________________
(. . . continued)
penalties may state a constitutional claim because of the absence of a jury trial in a
prior DUI prosecution.‖ Blanton, 489 U.S. at 545 & n.12.
12
Even so, the Court noted that it was ―hampered‖ in its review of the
clothing requirement because the record did not contain a description of the
clothing or details ―as to where and when it must be worn,‖ seemingly reserving
the possibility that a fuller record that showed a highly embarrassing or onerous
requirement could yield a different outcome. Blanton, 489 U.S. at 545 n.10.
13
A longer license suspension has been held to tip an otherwise presumed
petty DWI offense into the serious offense category. Richter v. Fairbanks, 903
F.2d 1202, 1204 (8th Cir. 1990) (holding that ―15-year license revocation,
considered together with the maximum six month prison term, is a severe enough
(continued . . .)
11
vehicle while intoxicated. 507 U.S. 1, 2 (1993). The possibility of a five-year
probation and $5,000 fine did not convert the presumptively petty offense to a
serious one for jury trial purposes, the Court held, because they did not
approximate or entail as great a loss of liberty as the possibility of imprisonment
for more than six months. Id. at 5.
III.
We apply a Blanton analysis in this case. In light of the 180-day maximum
exposure to incarceration for misdemeanor sexual abuse of a minor, we begin with
the presumption that the offense is ―petty‖ for Sixth Amendment purposes. The
question before us is whether the possibility of deportation refutes that
presumption. We note the obvious: there is no comparison between the penalty of
deportation and the statutory penalties considered in Blanton (temporary license
suspension, embarrassing clothing to be worn during two days of community
service, and alcohol abuse education course) that were deemed not significant
enough to render the DUI offense serious under the Sixth Amendment. Like
incarceration, deportation separates a person from established ties to family, work,
______________________
(. . . continued)
penalty to indicate that the Nebraska legislature considers third-offense DWI a
(continued . . .)
12
study, and community. In this forced physical separation, it is similar ―in severity
[to] the loss of liberty that a prison term entails.‖ Blanton, 489 U.S. at 542
(distinguishing probation and fines which, although they ―may engender ‗a
significant infringement of personal freedom,‘ . . . cannot approximate in severity
the loss of liberty that a prison term entails‖) (internal citation omitted) (quoting
Frank v. United States, 395 U.S. 147, 151 (1969)). Baldwin held that the
possibility of a sentence in excess of six months automatically renders an offense
serious under the Sixth Amendment, entitling the accused to a jury trial. Removal,
however, can be more severe than the possibility of a six-month sentence of
incarceration. Once the actual sentence is served (which could be for a term less
than the six-month maximum, or even only probation), a U.S. citizen can return
home to family and community and take steps to resume and, possibly, redirect his
life. But when a person faces deportation, serving the sentence is only the first step
following conviction; once the sentence is completed, the person faces the burdens
and anxiety that attend detention pending removal proceedings. Upon removal, the
physical separation from family and community lasts at least ten years and, for
some, including Mr. Bado, exclusion from the country becomes permanent.14 This
______________________
(. . . continued)
serious crime‖).
14
A person who is deportable as a result of conviction for any crime
identified in 8 U.S.C. § 1227 (a)(2) will be placed in removal proceedings under 8
(continued . . .)
13
disruption causes harm and suffering to those who are forced to leave and those
who remain. Wrenching decisions might have to be made within the family, which
could be left without an important source of emotional and financial support.
Those families often include children and other family members who are United
States citizens and who may be forced to leave this country to preserve familial
bonds with a parent or other relative no longer able to remain in the United States,
or to continue to receive their financial support. 15 For some, deportation may
expose them to harsh conditions in their country of origin including extreme
poverty, violence and oppression and persecution based on religious and political
beliefs. As the Court has recognized, removal is considered by many immigrants
to be worse than incarceration, such that ―preserving the [] right to remain in the
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(. . . continued)
U.S.C. § 1229a. 8 U.S.C. § 1229a (a)(1) & (2) (2012). Those convicted of an
aggravated felony who were removed under 8 U.S.C. § 1229a are rendered
ineligible for readmission to the United States, meaning they are forever barred
from entering the country unless the Attorney General consents to the application
for admission. Id. § 1182 (a)(9)(A)(ii)(II) (2012). Those convicted of a crime
involving moral turpitude or a crime related to a controlled substance are similarly
permanently inadmissible and deportable. Id. §§ 1182 (a)(2)(A), 1227 (a)(2)(A)(i),
& 1227 (a)(2)(B)(i) (2012). Those who were removed for other grounds are
eligible to apply for readmission after ten years (following a first order of removal)
and twenty years (following a second order of removal). Id. § 1182 (a)(9)(A)(ii)
(2012).
15
AJAY CHAUDRY, ET AL., THE URBAN INST., FACING OUR FUTURE:
CHILDREN IN THE AFTERMATH OF IMMIGRATION ENFORCEMENT 27-33, 41-51 (Feb.
2010) https://www.fcd-us.org/assets/2016/04/FacingOurFuture.pdf.
14
United States may be more important [] than any potential jail sentence.‖ Lee v.
United States, — U.S. —, 137 S. Ct. 1958, 1968 (2017) (quoting Padilla, 599 U.S.
at 368).
The Supreme Court has ―long recognized that deportation is a particularly
severe ‗penalty,‘‖ equating it to ―banishment.‖ Padilla, 559 U.S. at 365, 373
(quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)); see, e.g.,
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (―[D]eportation is a drastic
measure and at times the equivalent of banishment or exile.‖); Fong Yue Ting, 149
U.S. at 740 (Brewer, J., dissenting) (―Every[]one knows that to be forcibly taken
away from home, and family, and friends, and business, and property, and sent
across the ocean to a distant land, is punishment; and that oftentimes most severe
and cruel.‖). Removal that results from conviction erects a bar to entry into the
United States,16 with all the grave consequences that preclusion entails: loss of our
country‘s constitutional protections, the ability to engage with its social
institutions, and access to educational and economic opportunities. These are the
cherished values that have beckoned to people in other lands since our country‘s
founding and continue to provide hope for those seeking a better life and refuge for
those escaping violence and persecution. Their loss is so great as to be
15
unquantifiable. The loss of liberty, akin to incarceration, that results from removal
as well as the Court‘s repeated statements about its severity, lead us to conclude,
under a Blanton analysis, that deportation is so ―onerous‖ a penalty for conviction
that it presents the ―rare situation‖ that should ensure the availability of a jury trial
in a criminal proceeding even though the penalty of incarceration does not
―puncture the six-month incarceration line.‖ Blanton, 489 U.S. at 543.
IV.
The government agrees that, under Blanton, there is a two-step analysis: (1)
identification of the penalties for conviction of an offense, and (2) an evaluation of
whether the penalties, viewed together, are sufficiently severe to warrant a jury
trial by comparison to the possibility of imprisonment for more than six months,
which the Court has established (when considering only incarceration) as the
constitutional dividing line between petty and serious offenses. The government
does not dispute that deportation is a severe penalty. The government‘s arguments
boil down to one contention, that deportation is not the type of penalty that Blanton
contemplated should be taken into account in determining whether an offense is
______________________
(. . . continued)
16
See supra note 14.
16
deemed serious under the Sixth Amendment. Specifically, the government
contends that: (1) removal is not a penalty for a criminal offense; (2) removal
should not be considered because it is imposed by Congress, not the Council of the
District of Columbia, which created the offense; (3) longstanding precedent
establishes that deportation is not ―punishment‖; and (4) the courts of the District
of Columbia are not competent to determine the deportation consequence of
criminal conviction. As we now discuss, we are not persuaded by the
government‘s arguments to diverge from a straightforward application of a Blanton
analysis that includes the penalty of deportation.
A. Deportation is a Penalty for a Criminal Conviction
As the Court has recognized, ―[o]ur law has enmeshed criminal convictions
and the penalty of deportation for nearly a century.‖ Padilla, 559 U.S. at 365-66.
In this case, there is no dispute that the offense of misdemeanor sexual abuse of a
minor exposes appellant to removal. Appellant had been in proceedings seeking
asylum that were terminated pending his criminal trial because, if convicted, he
would be ineligible for asylum and deported.17 The government sought to deport
him upon his conviction. The government argues, however, that removal, even if it
17
is triggered by a criminal conviction, is a ―civil‖ sanction that should not be
considered in a Blanton analysis. We disagree. As Blanton emphasized, whether
the Sixth Amendment guarantees a jury trial is determined by reference to the
possible statutory ―penalties‖ that ―attach[] to‖ conviction of the offense:
In using the word ―penalty,‖ we do not refer solely to the
maximum prison term authorized for a particular offense.
A legislature‘s view of the seriousness of an offense also
is reflected in the other penalties that it attaches to the
offense. We thus examine ―whether the length of the
authorized prison term or the seriousness of other
punishment is enough in itself to require a jury trial.‖
489 U.S. at 542 (first emphasis added and internal citation omitted) (quoting
Duncan, 391 U.S. at 161). The Court did not parse whether ―the other penalties‖
were ―penal‖ or ―civil‖ in nature, and took care to consider the relative burdens
imposed by each of several penalties that were ―civil‖ in nature: temporary license
suspension, 48 hours of community service, a fine, and required attendance at an
alcohol abuse education course. Id. at 543-44. We see no foothold in Blanton for
the distinction the government urges in this appeal.
______________________
(. . . continued)
17
See supra notes 3 & 4.
18
Reprising the ―civil‖ versus ―penal‖ point, the government argues that
removal resulting from conviction is merely the prescribed remedy in a regulatory-
type proceeding that enforces provisions in the immigration laws that define who is
permitted to stay in the country. 18 No one doubts that the government has the
power to deport persons, so long as it is exercised pursuant to statutory authority
and consistent with the Constitution. That is not the issue here. In this case, we
are concerned with the constitutional rights guaranteed to the accused under the
Sixth Amendment in a criminal prosecution that could result in deportation. The
18
The government cites several cases for the proposition that deportation is
not ―punishment‖ for a criminal offense. None, however, deals with the Sixth
Amendment question presented in this appeal and all addressed deportation in a
context that did not involve a criminal prosecution. The first set of cases invoke
Congress‘s authority to define groups of people to exclude or remove from the
United States. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.
471, 488-91 (1999) (relying on the executive‘s broad prosecutorial discretion to
hold that ―an alien unlawfully in this country has no constitutional right to assert
selective enforcement as a defense against his deportation‖ when a person, not
convicted of any crime, is removed for overstaying a visa or is in the United States
under a student visa, but is not in school); Bugajewitz v. Adams, 228 U.S. 585, 591
(1913) (holding that deportation pursuant to Congress‘s power to exclude women
suspected of being prostitutes, where no criminal prosecution was involved, did not
violate the Ex Post Facto Clause); Fong Yue Ting, 149 U.S. at 699 n.1, 730
(affirming Congress‘s power to exclude Chinese nationals who had lived in the
United States for a number of years under the Chinese Exclusion Act; no criminal
proceedings were involved). Another case held that the removal hearing itself is
not a criminal proceeding. See Immigration & Naturalization Serv. v. Lopez-
Mendoza, 468 U.S. 1032, 1038, 1045-46 (1984) (holding that the Fourth
Amendment exclusionary rule was inapplicable in removal proceedings because it
was not a criminal proceeding, where a person‘s status as a noncitizen was
discovered only as a result of an unlawful arrest).
19
government‘s argument that deportation, as a civil penalty, is not relevant to our
inquiry is refuted by Blanton, where the Court considered the possible penalty of
license suspension following conviction for DUI relevant in deciding whether the
Sixth Amendment guarantees that apply to criminal prosecutions required a jury
trial. A license can be suspended, even in the absence of conviction, for purely
regulatory reasons such as failure to renew or driving without prescribed vision
correction, just as a person may be subject to removal for violating the terms of
admission absent a criminal conviction. Yet, in Blanton, the Court took into
account the possibility of a license suspension as part of its Sixth Amendment
analysis because the statute provided that suspension of licensing privileges was a
penalty for a DUI conviction. Similarly here, a statutory provision imposes
deportation as a penalty for conviction.
Moreover, the argument that characterizes deportation as a ―non-criminal‖
sanction is at odds with (and relies on cases that precede) current law and practice
under the 1996 amendments to the Immigration and Naturalization Act (―INA‖)19
which provide that removal proceedings are triggered by conviction of a number of
state and federal offenses. Cognizant of these changes in the law, the Court has
20
soundly rejected the notion that removal is merely a collateral consequence of
criminal conviction, distinct from a criminal penalty, and has instead recognized
that ―as a matter of federal law, deportation is an integral part — indeed,
sometimes the most important part — of the penalty that may be imposed on
noncitizen defendants.‖ Padilla, 559 U.S. at 364. The ―drastic measure of
deportation or removal is now virtually inevitable for a vast number of noncitizens
convicted of crimes.‖ Id. at 360 (internal citation and quotation omitted). To
characterize deportation in a case like this as merely a civil remedy separate from
the penalty for conviction is not only contrary to Blanton‘s analysis; it also flies in
the face of the Court‘s repeated statements in recent opinions that the penalty of
removal plays a central role in criminal proceedings involving noncitizens. See
Sessions v. Dimaya, 584 U.S. ____, 138 S. Ct. 1204, 1213 (2018) (―[A]s federal
immigration law increasingly hinged deportation orders on prior convictions,
removal proceedings became ever more ‗intimately related to the criminal
process.‘‖ (quoting Chaidez v. United States, 568 U.S. 342, 352 (2013) (in turn
quoting Padilla, 559 U.S. at 365)). The civil/criminal distinction the Court said in
Padilla is ―ill suited‖ to evaluating a Sixth Amendment claim of ineffective
______________________
(. . . continued)
19
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214, 1274 (codified as amended at 8 U.S.C. § 1227 (a)(2)(A)(i)(II)
(2012)).
21
assistance of counsel, id. at 366, is equally ill-suited to evaluating a claim to a jury
trial, which is another in the group of rights guaranteed by the Sixth Amendment to
the accused in a criminal prosecution. 20 Cf. Dimaya, 584 U.S. at ____, 138 S. Ct.
at 1212-13 (noting government‘s civil/criminal distinction and rejecting the
argument that because deportation is a civil sanction, a less searching standard
should apply in a due process evaluation of a void-for-vagueness challenge under
the Fifth Amendment).
Finally, the argument that deportation is simply a civil measure also
overlooks that harsher substantive and procedural requirements apply when
deportation is triggered by a criminal conviction than in ―regulatory‖ deportations,
such as when a person is out of status (e.g., a person who is working without
authorization or enters on a student visa and is no longer in school). Those who
are removed as a result of a criminal conviction are ineligible for reentry for a
longer period or permanently barred,21 they are more likely to be detained pending
removal proceedings, and, once a removal order has been entered, they are also
streamlined through expedited removal proceedings, subjected to additional
periods of detention, and extremely limited in their eligibility for relief from
20
See supra note 7.
22
deportation. 22 These harsher provisions are not generally applicable, nor are they
triggered by any circumstance other than the conviction of a crime (or admission of
______________________
(. . . continued)
21
See supra note 14.
22
For example, conviction of an aggravated felony renders a person
―conclusively presumed to be deportable,‖ 8 U.S.C. § 1228 (c) (2012); subjects
them to ―expedit[ed] removal,‖ forcing the person to counter removal proceedings
from jail, id. § 1228 (a)(1) & (3) (2012) (―[T]he Attorney General shall provide for
the initiation and, to the extent possible, the completion of removal proceedings,
and any administrative appeals thereof, in the case of any alien convicted of an
aggravated felony before the alien‘s release from incarceration for the underlying
aggravated felony.‖); and makes them ineligible for judicial review of the final
order of deportation, except under limited circumstances, id. § 1252 (a)(2)(C) &
(D) (2012) (―[N]o court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed [a crime
involving moral turpitude or relating to a controlled substance] or [an aggravated
felony],‖ with the exception of ―constitutional claims or questions of law.‖). They
are precluded from applying for asylum, id. § 1158 (b)(2)(B)(i) (2012);
cancellation of removal, id. § 1229b (b)(1)(C) (2012); or a waiver of
―inadmissib[ility] or deportab[ility]‖ under the Violence Against Women Act, id.
§ 1229b (b)(2)(A)(iv) (2012). They are also categorically excluded from being
granted voluntary departure (and thus, the opportunity to avoid a prior order of
removal on their record). Id. § 1229c (a)(1) & (b)(1)(C) (2012). There are no
similar provisions for those not convicted of crimes.
Similarly, although any noncitizen may be arrested and detained pending a
decision on whether the person is to be removed from the United States, id. § 1226
(a) (2012), those not convicted of a crime may be released on bond or conditional
parole, id., while those convicted of certain crimes (e.g., an aggravated felony or a
crime involving moral turpitude) must be taken into custody and may not be
released, except in limited circumstances found by the Attorney General to be
necessary to protect a witness involved in an investigation into major criminal
activity, id. § 1226 (c) (2012). Additionally, although a person who has been
ordered removed is to be detained, the Attorney General has discretion not to
detain a person between the time the order of removal is entered and when the
person is actually removed, with the exception of those convicted of an aggravated
(continued . . .)
23
criminal behavior) and, thus, distinguish removal upon conviction from regulatory
removals. As the Court has observed, once a noncitizen has been convicted of a
removable offense, detention and removal are ―practically inevitable but for the
possible exercise of limited remnants of equitable discretion vested in the Attorney
General.‖ Padilla, 559 U.S. at 363-64. Exercise of these ―limited remnants‖ of
executive discretion is rare as the government‘s enforcement policies have
prioritized the removal of persons who have been convicted of crimes, ensuring
that they are much more likely to be deported than others who could be removed as
part of the regulatory process.23
The government argues that removal should not be considered a penalty in a
Blanton analysis because (1) the sentencing court does not have authority to order
______________________
(. . . continued)
felony, who must be detained during this time, 8 U.S.C. § 1231 (a)(2) (2012), and
could continue to be detained beyond the prescribed removal period, if removal
does not actually occur during this period of time, id. § 1231 (a)(6) (2012).
23
Exec. Order No. 13768, 82 Fed. Reg. 8799, 8800 (Jan. 30, 2017) (Trump
administration); MEM. FROM JOHN MORTON, DIRECTOR, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, TO ALL ICE EMPLOYEES, RE: CIVIL IMMIGRATION
ENFORCEMENT: PRIORITIES FOR APPREHENSION, DETENTION, AND REMOVAL OF
ALIENS (Mar. 2, 2011) (Obama administration).
24
deportation upon conviction for a deportable offense 24 and (2) there would be an
―anomaly‖ if a noncitizen would be entitled to a jury trial but a citizen would not.
Neither of these is a factor whose relevance can be gleaned from Blanton, which
focused on the possible penalties faced by the accused claiming the right to
demand a jury trial, without regard to the mechanics by which the penalty is
imposed. For example, the Court‘s consideration of the license suspension for the
DUI conviction in Blanton was not dependent on whether it was imposed by the
24
In the past, deportation was dismissed as ―collateral‖ and therefore not
integral to a criminal prosecution, in part based on reasoning that, following
conviction, there was an intervening decision-maker and proceeding, which
attenuated the connection between a criminal conviction and removal. See Padilla,
559 U.S. at 361-63 (discussing both the use of a ―judicial recommendation against
deportation, or JRAD‖ between 1917 and 1990, which acted as a bar against
deportation, as well as the end of the Attorney General‘s authority to grant
discretionary relief). As Padilla explained, that is an outdated view that has been
overtaken by changes to the INA initiated in 1996 and is not determinative of the
scope of the Sixth Amendment right to effective assistance of counsel. See id. at
363-64 & n.5. We reject statements to the contrary made in Foote v. United States,
670 A.2d 366, 372 (D.C. 1996), decided pre-Padilla, and Olafisoye v. United
States, 857 A.2d 1078, 1084 (D.C. 2004) (citing Foote). Moreover, it appears that
the issue of deportation was moot in both cases. Foote involved a defendant who
might have been a U.S. citizen and, therefore, was not deportable, 670 A.2d at 372
(opinion does not state that defendant was not a U.S. citizen and refers to
―hypothetical civil or administrative proceedings . . . [that] in most cases could not
be brought against [the defendant]‖); the offenses at issue in Olafisoye did not
render the noncitizen in that case deportable upon conviction, 857 A.2d at 1083,
1084 & n.6. Judge Fisher‘s dissent‘s reliance on People v. Suazo, 45 N.Y.S.3d 31,
32 (N.Y. App. Div. 2017), leave to appeal granted, 64 N.Y.S.3d 117 (2017), is
similarly unpersuasive because in that case, the immigration impact of the
conviction was ―unclear‖ and the court continued to cite the discredited notion that
deportation is ―still collateral.‖ Id.
25
sentencing court. 489 U.S. at 539 (citing Nev. Rev. Stat. § 483.460 (1)(c)) (noting
that suspension occurred ―automatically‖). Moreover, by expressly declining to
consider other enhanced penalties that were not faced by the accused individual, id.
at 545 n.12, Blanton made clear that what is relevant to the Sixth Amendment
analysis are the potential penalties to which the particular defendant is exposed
upon conviction. 25 In an analogous circumstance, we have rejected a claim that an
enhanced penalty for recidivism triggers a jury trial right where the defendant was
not ―personally‖ facing the penalty. See Brown v. United States, 675 A.2d 953,
954 (D.C. 1996). Thus, because citizens can never be deported, it is hardly
anomalous that Blanton‘s penalty-oriented Sixth Amendment analysis could render
a different result for citizens than for noncitizens who face the additional, and
concededly serious, penalty of deportation.26 Similarly, it would not be anomalous
25
For this reason, the holding in Amezcua v. Eighth Judicial Dist. Court is
not persuasive authority as the appellant in that case conceded he was a U.S.
citizen and, thus, was not subject to deportation if convicted. See 319 P.3d 602,
604 n.3 (Nev. 2014).
26
It is well settled that the Constitution generally, and the Sixth
Amendment jury trial right in particular, apply to persons in the United States, not
only to citizens of the United States. See Zadvydas v. Davis, 533 U.S. 678, 694-95
(2001) (detailing the history of applying protections of the Constitution to ―all
persons within the territory of the United States‖); Wong Wing v. United States,
163 U.S. 228, 238 (1896) (―[I]t must be concluded that all persons within the
territory of the United States are entitled to the protection guaranteed by [the Fifth
and Sixth A]mendments.‖)
26
if one citizen who faces a more severe penalty such as a greater period of
incarceration for a repeat offense is entitled to a jury trial whereas another citizen
who faces lesser penalties is not. 27 The government offers no compelling reason
why we should engraft additional requirements to the factors set out by the Court
that are not relevant to Blanton‘s focus on the potential penalties that are faced by
the accused individual. If, viewed together with the maximum period of
incarceration, the penalties‘ severity is comparable to a prison sentence of more
than six months, the Sixth Amendment entitles the accused to a jury trial. 28
27
Although Judge Fisher‘s dissent acknowledges that a repeat offender may
be entitled to a jury trial if exposed to a greater penalty for the same offense
committed by a first-time offender, it reasons that a recidivist could be deemed to
have committed an ―aggravated form‖ of the offense: a ―different offense with a
different maximum sentence.‖ Post at 68. The same could be said here, where the
noncitizen is deemed to have committed an ―aggravated felony,‖ see supra note 3,
and, as a result, is subject to a more severe penalty than the citizen. We are also
unpersuaded by the dissent‘s reliance on Lewis v. United States, 518 U.S. 322
(1996). Lewis dealt with an entirely different situation, where a defendant claimed
to have a right to a jury trial because he faced potential aggregate incarceration of
more than six months if convicted of two counts of the same offense (obstructing
the mail), which was undisputedly ―petty.‖ Id. at 324-25. As the Court observed,
the ―penalty authorized by Congress manifests its judgment that the offense is
petty.‖ Id. at 328. Here, the penalty of deportation manifests the legislative
judgment that conviction of a single count of sexual abuse of a minor is serious.
28
Judge Fisher‘s dissent cites Brown, 675 A.2d at 955, for the proposition
that even if removal is triggered by a criminal conviction, it is not ―part of the
punishment for the crime.‖ Post at 65. Reliance on Brown is inapt. Brown
rejected a defendant‘s claim that a subsequent conviction of a petty offense, which
activated a suspended sentence imposed in a previous criminal proceeding,
triggered the jury trial right in the prosecution of the subsequent offense, reasoning
(continued . . .)
27
B. Congress Has Imposed the Deportation Penalty for Criminal
Conviction
The government further argues that removal that is triggered by a criminal
conviction should not be taken into account because it is a penalty that results from
a congressional enactment and is not part of the penalty designated by the
legislature that created the offense, in this case, the Council of the District of
Columbia. This argument misapprehends Blanton‘s meaning and is contrary to its
purpose.29 In Blanton, the Court rejected the notion that a court may gauge the
seriousness of an offense for Sixth Amendment purposes by coming to a subjective
______________________
(. . . continued)
that Brown ―mistakenly characterize[d]‖ the reimposed sentence ―as an additional
statutory penalty attributable to the present offense,‖ which was, instead, ―a
continuation of the prosecution of his first offense.‖ 675 A.2d at 955. Thus, it did
not constitute punishment for the conviction in the criminal prosecution for which
the jury trial was demanded. Id. Here, on the other hand, by statute, the
deportation penalty attaches directly upon conviction of the offense in the criminal
prosecution for which appellant claims the right to a trial by jury.
29
The government‘s argument rests on a sentence in a footnote in Blanton
in which the Court refused to consider the penalties for DUI ―in other [s]tates.‖
489 U.S. at 545 n.11. But these were penalties that did not apply to the petitioners
before the Court, who faced only penalties imposed by the state of Nevada. In the
same footnote, the Court also noted that it ―frequently looked to the federal
classification scheme in determining when a jury trial must be provided.‖ Id. As
noted, federal law classifies sexual abuse of a minor as an ―aggravated felony.‖ 8
U.S.C. § 1101 (a)(43)(A), and imposes the penalty of deportation upon conviction
of this and other specified offenses, id. § 1227 (a)(2)(A) (2012).
28
judgment about the ―nature‖ of the offense. 489 U.S. at 541-42, & n.5. Instead,
the seriousness of an offense is to be assessed by reference to objective standards
— penalties — ―resulting from state action, e.g., those mandated by statute or
regulation.‖ Id. at 543 n.8. Through the penalties mandated by public officials and
elected representatives, ―the laws and practices of the community [are] taken as a
gauge of its social and ethical judgments.‖ Id. at 541 n.5 (citing District of
Columbia v. Clawans, 300 U.S. 617, 628 (1937)). 30 Congress, as the national
legislature, is presumed to reflect the nation‘s social and ethical judgments;
moreover, it is the only legislative body that can prescribe the penalty of removal
for a criminal conviction. See United States v. Arizona, 641 F.3d 339, 349 (9th Cir.
2011), partially rev’d on other grounds, 567 U.S. 387 (2012) (―[R]emoval is
exclusively the purview of the federal government.‖)) That penalty is triggered by
conviction of an offense that falls within offense classifications identified by
Congress in the INA, regardless of whether the conviction results from violations
of federal, state, or District of Columbia law.31 There is no reason grounded in the
30
The legislature is ―far better equipped to perform the task, and [is]
likewise more responsive to changes in attitude and more amenable to the
recognition and correction of their misperceptions.‖ Blanton, 489 U.S. at 541-42
(alteration in original) (quoting Landry v. Hoepfner, 840 F.2d 1201, 1209 (5th Cir.
1988)).
31
Judge Glickman‘s dissent relies on two unpublished federal district court
opinions, from California and Kentucky, for the proposition that the deportation
(continued . . .)
29
______________________
(. . . continued)
penalty should not be considered because it was imposed by Congress. Post at 57
n.3. These cases address state SORA registration requirements, not deportation; in
this opinion we do not address appellant‘s claim that sex offender registration
entitles him to a jury trial. See supra note 6. In any event, we find these opinions
unpersuasive. In Rauch v. United States, where the defendant pleaded guilty to a
federal offense, the district court stated that the view of the state of California,
which imposed the registration requirement, was irrelevant on the question of the
seriousness of the federal offense as the registration requirement was not enacted
by Congress ―in conjunction with‖ the offense. No. 1:07-CV-0730 WMW, 2007
U.S. Dist. LEXIS 72616, *8-9 (E.D. Cal. Sept. 28, 2007). The opinion does not
explain what ―in conjunction with‖ means; we note, however, that in the case
before us, Congress enacted the penalty of deportation to attach, specifically, to
conviction for ―sexual abuse of a minor,‖ the offense of which appellant was
convicted under D.C. Code § 22-3010.01. See supra notes 2 and 4. Having
dismissed California‘s views as irrelevant, Rauch then does an about-face and
relies on California‘s interpretation that its sex offender registration requirement is
not punishment ―for purposes of state and federal ex post facto analysis.‖ Id. at *9
(citing People v. Castellanos, 982 P.2d 211, 212 (Cal. 1999)). As we discuss in the
next section, analysis under the Sixth Amendment guarantee to a jury trial is
fundamentally different from analysis under the Fifth Amendment‘s Ex Post Facto
and Double Jeopardy Clauses because of differences in the constitutional text and
rights protected.
The Ivy case is similarly unpersuasive as it relies on Rauch. It also relies on
this court‘s conclusion, in a plain error case, that because SORA registration is a
―regulatory‖ measure that does not offend the Fifth Amendment Ex Post Facto and
Double Jeopardy Clauses, it does not trigger the right to jury trial. Ivy v. United
States, No. 5:08-CR-00021-TBR, 2010 U.S. Dist. LEXIS 28933, *7 (W.D. Ky.
March 26, 2010) (citing Thomas v. United States, 942 A.2d 1180, 1186 (D.C.
2008) (in turn citing In re W.M., 851 A.2d 431, 440-51 (D.C. 2004) (upholding
constitutionality of sex offender registration against Fifth Amendment
challenges))); see id. (citing Cutshall v. Sundquist, 193 F.3d 466, 476 (6th Cir.
1999) (upholding constitutionality of Tennessee‘s sex offender registration statute
against a challenge based on the Ex Post Facto Clause, Double Jeopardy Clause
and as a Bill of Attainder). Ivy also relied on the short period of maximum
incarceration, ―ninety days, significantly less than the threshold amount of six
months.‖ Id. at *9.
30
purpose of Blanton‘s penalty-based analysis to exclude from Sixth Amendment
consideration the serious penalty of removal that attaches to a criminal conviction,
and to which the accused is exposed, because it has been imposed by Congress
rather than the local legislature. 32
C. Principles Applicable to Constitutional Provisions Other Than the
Sixth Amendment Right to Jury Trial
32
Congress could decide, for example, that certain otherwise ―petty‖ state
offenses punishable by no more than six-months imprisonment should have an
enhanced prison sentence of one year in order to address a crisis that affects the
nation as a whole. In such a case, there can be little doubt that the enhanced
maximum period of incarceration would weigh in the Blanton analysis because the
accused would face the greater period of incarceration, regardless of whether the
underlying state offense, without the congressionally imposed enhancement, would
be deemed petty.
The government and Judge Fisher‘s dissent rely on State ex rel. McDougall
v. Strohson, 945 P.2d 1251, 1256 (Ariz. 1997) (en banc), which considered the
federal prohibition on firearms possession by persons convicted of certain state
offenses, and concluded that the federal prohibition did not convert the underlying
petty offense into a serious one for Sixth Amendment purposes. But that reliance
is inapt. In concluding that the defendant in that case was not entitled to a jury
trial, the court relied on an analogy to state precedent that counsel had no
obligation to advise a pleading defendant that ―he might be subjecting himself to
deportation under federal law.‖ Id. That state law precedent has since been
overruled, on constitutional grounds, by Padilla, and is in tension with D.C. law,
which requires that a pleading defendant be informed of the possibility of
immigration consequences. See D.C. Code § 16-713 (2012 Repl.). In addition,
Strohson is inapposite as the court in that case observed that the inability to possess
a firearm, ―while admittedly very important to some people, does not present the
type of universal grave consequence we have found in cases invoking a right to
jury trial.‖ Strohson, 945 P.2d at 1256. As we have discussed, the Court has
recognized that deportation is such a grave consequence of a criminal conviction.
31
The government points to cases holding that deportation is not ―punishment‖
for a crime and argues that Padilla‘s acknowledgement that it is a serious penalty
central to a criminal conviction did not sub silentio overrule them. The cases on
which the government relies are not on point because they did not present a Sixth
Amendment claim, but arose under different constitutional provisions, the Double
Jeopardy Clause of the Fifth Amendment, U.S. CONST. amend. V, and the Ex Post
Facto Clause, id., art. I, § 10. This is a significant difference. Because the
Constitution‘s text is silent as to how these Clauses are to be applied, the Court has
ruled that the question turns on whether a law ―retroactively alter[s] the definition
of [a] crime[] or increase[s] the punishment for criminal acts,‖ Collins v.
Youngblood, 497 U.S. 37, 43 (1990) (Ex Post Facto Clause); or whether the state is
―punishing twice, or attempting a second time to punish criminally, for the same
offense,‖ Helvering v. Mitchell, 303 U.S. 391, 399 (1938) (Double Jeopardy
Clause). The threshold question of whether either of these Clauses applies in a
particular case therefore depends on whether the law or government action under
judicial review involves a criminal offense or punishment for a crime. 33 There is
33
Thus, in deciding whether these particular constitutional guarantees are
implicated, the Court has had to devise tests to interpret the state‘s motivation
behind the challenged actions and the effect of the sanctions. For example, in
Smith v. Doe, 538 U.S. 84, 89-90, 92-93, 105-06 (2003), the Court employed the
(continued . . .)
32
no similar threshold question here, however, because the Sixth Amendment by its
terms applies to ―all criminal prosecutions,‖ U.S. CONST. amend. VI, and this case
involves a criminal prosecution. The question before us is different, whether the
penalties that attach if the criminal prosecution results in a conviction for
misdemeanor sexual abuse of a minor meet the Court‘s definition of what
constitutes a ―serious‖ offense that would entitle the accused to demand that the
criminal prosecution be presented to, and decided by, a jury. This explains why
Padilla, which also dealt with the scope of another of the Sixth Amendment rights
of the accused in a criminal prosecution — the right to effective assistance of
counsel — did not need to overrule any of the cases cited by the government,
which arose under other constitutional provisions.34 Padilla recognizes that
______________________
(. . . continued)
―intent-effects‖ test to determine whether, in imposing a registration requirement
for sex offenders under ALASKA STAT. § 12.63.010 with retroactive effect, the
legislature intended to establish non-punitive civil proceedings or to impose
punishment in deciding whether the Ex Post Facto Clause applied. In United
States v. Ursery, 518 U.S. 267, 271-72, 278 (1996), the Court employed the
―intent-effects‖ test to determine whether the Double Jeopardy Clause applied
when an in rem civil forfeiture proceeding of property used in connection with
illegal drug transactions had preceded a criminal prosecution based on the same
underlying drug transactions. See Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-69 (1963) (listing factors considered under the ―intent-effects‖ test).
34
The government refers to Padilla‘s citation of Fong Yue Ting v. United
States, 149 U.S. 698 (1893), as a reaffirmation of the holding of that case. But
Padilla cited Fong Yue Ting for the proposition that removal is a ―particularly
severe ‗penalty.‘‖ 559 U.S. at 365 (quoting Fong Yue Ting, 149 U.S. at 740). The
(continued . . .)
33
deportation, even though ―it is not, in a strict sense, a criminal sanction,‖ because
of its ―unique nature,‖ is nonetheless a ―penalty‖ that is so ―enmeshed‖ in the
criminal consequences of a conviction that it triggers the right to the assistance of
counsel under the Sixth Amendment. 559 U.S. at 365-66. Thus, even though it
did not decide the question presented in this case, Padilla supports (and the cases
on which the government relies do not undermine) that removal is a penalty to be
factored in when applying the Court‘s penalty-oriented Blanton analysis to
determine whether the accused has a Sixth Amendment right to a jury trial in a
criminal prosecution.
D. Practicality of Application
Finally, the government asserts that there are ―practicalities and
uncertainties‖ as to whether conviction of an offense renders a defendant
removable which could make application of a Blanton analysis difficult in some
______________________
(. . . continued)
case before us does not implicate Fong Yue Ting‘s holding that certain
constitutional provisions, including the right to jury trial, do not apply to
deportation proceedings because they are not criminal proceedings; appellant‘s
claim in this case is to a jury trial in a criminal prosecution that is indisputably
covered by the Sixth Amendment.
34
cases.35 The government does not argue that any such difficulties are presented in
this case, as it agrees that appellant‘s conviction makes him deportable.36 Our
holding today is clear: the Sixth Amendment entitles a defendant to a jury trial if
he is charged with a deportable offense, even if the maximum period of
incarceration does not exceed six months. The statutory basis for the deportation
penalty is readily ascertainable, as the INA identifies categories of offenses that
render a convicted noncitizen defendant deportable. See 8 U.S.C. § 1227 (a)(2)
(2012).37 There is no dearth of law on the subject: decisions of the Board of
35
The government also argues that, if the possibility of removal is
considered in a Blanton analysis, all sorts of other consequences that may follow
after a conviction could also be factors, such as termination of employment and
ineligibility for gun ownership. These are not before us. Appellant does not rest
his constitutional claim on any of these consequences, and our holding is limited to
removal from the country, a penalty that the Court has recognized as grievous and
―enmeshed‖ in the criminal proceeding.
36
Judge Fisher‘s dissent suggests that appellant‘s conviction for sexual
abuse of a minor, although it rendered appellant deportable, should not be
considered an aggravated felony under the INA. Post at 70 n.6. At trial, all parties
and the trial judge assumed that it is. Similarly, on appeal before a division of this
court and on rehearing en banc, there has been no suggestion otherwise. As a
factual matter, the government has acted accordingly, suspending appellant‘s
asylum petition upon commencement of the criminal prosecution.
37
As applied to offenses in the District of Columbia punishable by a
maximum sentence of less than six months that would not be jury demandable
under the District‘s statute, see supra note 9, they include: sexual abuse of a minor
8 U.S.C. §§ 1101 (a)(43)(A), 1227 (a)(2)(A)(iii); offenses related to controlled
substances (excluding possession of small quantities of marijuana), id. § 1227
(continued . . .)
35
Immigration Appeals (―BIA‖),38 cases from other jurisdictions,39 and guidance
provided by federal agencies charged with administration of admission and
exclusion of persons to the United States.40
Even if they were not purely hypothetical here, the difficulties that the
government fears may come to pass in some other case are too remote and of
insufficient import to outweigh the loss of the constitutional right to a jury trial.
Blanton‘s penalty-oriented analysis was intended to safeguard this important right
______________________
(. . . continued)
(a)(2)(B); and domestic violence, violation of a protection order, stalking, and
child abuse, id. § 1227 (a)(2)(E).
38
The BIA has determined that convictions for certain offenses are crimes
involving moral turpitude under 8 U.S.C. §§ 1182 (a)(6)(A)(i) & 1227
(a)(2)(A)(ii), that can result in deportation or exclusion. See, e.g., Matter of
Guillermo Diaz-Lizarraga, 26 I&N Dec. 847, 852-53 (BIA 2016) (theft crimes).
Theft crimes are codified at D.C. Code §§ 22-3211 & 3213 (2012 Repl.).
39
See, e.g., Reyes v. Lynch, 835 F.3d 556, 558 (6th Cir. 2016) (concluding
that prostitution is a deportable offense as a crime involving moral turpitude under
8 U.S.C. § 1227 (a)(2)(A)(ii)).
40
See, e.g., U.S. DEP‘T OF STATE, FOREIGN AFFAIRS MANUAL 302.3-2
(B)(2) (U) (Vol. 9 2017) (including fraud (codified at D.C. Code §§ 22-1402 &
1510 (2012 Repl.)) and lewdness (codified at D.C. Code § 22-1312 (2012 Repl.))
within the definition of conduct involving moral turpitude, and excluding gambling
(codified at D.C. Code §§ 22-1702, 1703, 1704, 1706, & 1708 (2012 Repl.)),
vagrancy (codified at D.C. Code § 22-2302 (2012 Repl.)), disorderly conduct
(codified at D.C. Code § 22-1321 (2012 Repl.)), and trespass (codified at D.C.
Code § 22-3302 (2012 Repl.)).
36
where the severity of the potential penalties raises the stakes in a criminal
prosecution. In a case where the prosecution and defense are in disagreement on
the question of whether an accused will face the serious penalty of deportation if
convicted, the trial court is not without resources to come to a sound resolution of
the constitutional issue presented. Government counsel are part of the Department
of Justice, which has deep expertise in immigration matters and is part of the same
executive branch as the Departments of State and Homeland Security, which have
responsibility for enforcing the immigration laws. Defense counsel have an
obligation to advise their clients competently on the question of immigration
consequences. See Padilla, 559 U.S. at 369. If necessary, the court presiding over
a criminal prosecution can appoint its own expert advisor on immigration law.
We do not expect this to be a common occurrence in Superior Court.
Although genuine disputes about deportability might arise in an immigration
proceeding, we think they will seldom occur in the context of a pretrial demand for
a jury trial. It is not very likely that a defendant would challenge the government‘s
representation in court that an offense is not deportable, or that the government
would make such a representation without being confident that its position is
37
legally correct.41 The opposite situation, where the government were to assert
(contrary to the defendant‘s view) that a charged offense is deportable, and thus,
jury demandable, presents no issue as the defendant may always waive the right to
a jury trial. If the trial court nonetheless must decide a jury demand based on a
difficult and unsettled question of deportability, it has the obligation — as in so
many other areas 42 — to decide the constitutional issue to the best of its ability.
See D.C. Code § 16-705 (a) (mandating that where the Constitution so requires,
trial ―shall be by jury‖ unless waived by defendant). Where a jury trial demand is
made in a case with a truly vexing issue of deportability, the trial court can decide
to default to recognition of the Sixth Amendment right, and avoid the risk of
41
The defendant could argue that the government‘s representation in the
criminal proceeding provides the basis for judicial estoppel in a later deportation
proceeding where the government takes the opposite view. See United States v.
Barahona, No. 14-DVM-1945, 2014 D.C. Super. LEXIS 19, at *9 n.5 (D.C. Super.
Ct. Dec. 12, 2014) (noting that where the government urged the trial court to
conclude that the defendants could not be deported following a conviction, the
government would then be precluded by the doctrine of judicial estoppel ―from
taking a contrary position in hypothetical future immigration hearings involving
the defendants‖); cf. Mason v. United States, 956 A.2d 63, 65-66 (D.C. 2008)
(judicially estopping a defendant who changed position in different proceedings
concerning citizenship status and setting out three factors to be considered in
applying judicial estoppel); Porter Novelli v. Bender, 817 A.2d 185, 188 (D.C.
2003) (applying judicial and equitable estoppel to prevent a party from arguing
contrary legal positions at separate, but related, proceedings). See generally Ward
v. Wells Fargo Bank, N.A., 89 A.3d 115, 127-28 (D.C. 2014).
42
E.g., novel Fourth Amendment motions to suppress and Sixth
Amendment claims of ineffective assistance of counsel.
38
imperiling a conviction that may be obtained after a bench trial, should it
eventually be determined that denial of the jury trial demand was based on a
flawed judgment on the deportation question. The additional time required for a
jury trial may well be offset by the time saved in pretrial argument. Even if some
judicial efficiency might be lost, in the weighing of harms and benefits on a
constitutional scale, this remote possibility is not a determinative factor.
***
We conclude that the penalty of deportation, when viewed together with the
180-day maximum period of incarceration for misdemeanor sexual abuse of a
minor, overcomes the presumption that appellant was charged with a petty offense
and triggers the Sixth Amendment right to a trial by jury. As appellant was denied
his rightful demand for a jury trial, the conviction is reversed and the case is
remanded for further proceedings.
So ordered.
WASHINGTON, Senior Judge, concurring: As my colleagues have made clear
in their competing opinions in this case, our attempt to reconcile the Supreme
39
Court‘s decisions in Baldwin v. New York, 399 U.S. 66 (1970), and Blanton v. City
of N. Las Vegas, 489 U.S. 538 (1989), with the D.C. Misdemeanor Streamlining
Act, see Omnibus Criminal Justice Reform Act of 1994, D.C. Law § 10-151, 41
D.C. Reg. 2608 (effective Aug. 20, 1994), has resulted in a decision where two
individuals charged with the same misdemeanor crime in the District of Columbia
enjoy very different trial rights and privileges due to the severity of the
consequences they individually face for committing that crime. I write separately
because I am concerned that our decision today, while faithful to the dictates of
Blanton, creates a disparity between the jury trial rights of citizens and non-citizens
that lay persons might not readily understand. That disparity is one that the
legislature could and, in my opinion, should address. The failure to do so could
undermine the public‘s trust and confidence in our courts to resolve criminal cases
fairly.
In Baldwin, the Supreme Court interpreted the Sixth Amendment to the
Constitution as guaranteeing a right to a jury trial only in criminal cases where an
individual is charged with committing serious crimes. The Court went on to
distinguish between serious and non-serious crimes, concluding that a serious
crime was one that carried the possibility of incarceration for six months or more.
Baldwin, 399 U.S. at 69.
40
In Blanton, the Supreme Court, while reiterating that the maximum potential
sentence that can be imposed for the commission of a crime is a significant
indicator of whether society considers the crime to be serious, also acknowledged
that the length of the potential sentence does not necessarily end the inquiry if
there are other ―objective indications of the seriousness with which society regards
the offense.‖ Blanton, 489 U.S. at 541 (quoting Frank v. United States, 395 U.S.
147, 148 (1969)). As the majority opinion points out, the Supreme Court did not
parse whether ―the other penalties‖ were ―penal‖ or ―civil‖ in nature and
referenced several penalties that were ―civil‖ in nature when assessing the relative
burdens faced by defendants in criminal cases.
The Misdemeanor Streamlining Act (Act), passed in 1994, was designed to
―relieve pressure on the court‘s misdemeanor calendars, allow for more cases to be
heard by hearing commissioners, and allow for more felony trials to be scheduled
at an earlier date.‖ Council for the District of Columbia, Committee on the
Judiciary, Report on Bill 10-98, at 3-4 (Jan. 26, 1994). The Act sought to
accomplish these goals by reducing the maximum sentence that could be imposed
for the commission of most misdemeanor crimes in the District of Columbia from
six months or more to 180 days or less. By reducing the maximum possible
41
sentence for the majority of misdemeanor offenses, the crimes no longer met the
Baldwin threshold for serious crimes, and thus, the vast majority of defendants in
the District of Columbia charged with misdemeanor crimes were no longer
constitutionally entitled to a jury trial. Before today, we rarely, if ever, looked past
the legislative intent expressed in the relevant criminal statutes to determine
whether the Council and/or Congress intended for the crime to be considered a
serious one. However, because we have interpreted Blanton as authorizing a
broader view of the applicable statutory penalties for determining whether the
crime is considered serious, we are in the unenviable position of trying to ascertain
legislative intent without the benefit of a well-developed legislative record.
As Justice Gorsuch recently noted in his concurring opinion in Sessions v.
Dimaya, ―[G]rave as th[e deportation] penalty may be . . . many civil laws today
impose . . . many similarly severe sanctions.‖ 138 S. Ct. 1204, 1231 (2018)
(Gorsuch, J., concurring). That fact has not been lost on this court as we also have
recognized that there are significant, if not similarly severe, sanctions that attach to
convictions for misdemeanors in the District of Columbia. See Foote v. United
States, 670 A.2d 366, 370 (D.C. 1996) (noting that appellant‘s counsel identified
collateral consequences to include ―residential eviction, forfeiture of assets,
revocation of driving privileges, . . . ineligibility for federal benefits, and enhanced
42
periods of incarceration for repeat offenders‖) (footnotes omitted); see also
Thomas v. United States, 942 A.2d 1180, 1186 (D.C. 2008) (condition that
defendant register under the Sexual Offender Rehabilitation Act did not render
misdemeanor child sexual abuse a jury-demandable crime); Young v. United
States, 678 A.2d 570, 571 (D.C. 1996) (―[T]he potential loss of a driver‘s license
for one convicted of a misdemeanor drug offense carrying a maximum penalty of
six months imprisonment in this jurisdiction does not transmogrify this petty
offense into a serious offense requiring a jury trial‖).
However, and for the first time, a majority of our court has relied on a
collateral civil statutory penalty to transmogrify an otherwise petty offense into a
serious crime and that means that the courts likely will be faced with new
challenges in individual cases to the Act‘s limitation on the right to jury trials in
misdemeanor cases. The majority opinion sees this as a relatively inconsequential
matter as they believe that it will be the rare case where another civil statutory
penalty will be considered severe enough to entitle a defendant to a jury trial in a
misdemeanor case, while the dissent acknowledges the disparity, but argues that
the anomaly supports their position that those of us in the majority are interpreting
the Supreme Court‘s opinion in Blanton v. United States too expansively.
Regardless, I agree with Justice Gorsuch‘s comment above that there are many
43
other severe civil statutory penalties that have been attached to criminal
convictions, in addition to deportation and, because it is the legislature‘s intent that
must guide our analysis, the Council should speak clearly to the issue of whether
the civil penalties that attach to certain misdemeanor crimes reflects a legislative
judgment that the commission of those crimes is more serious than the potential
criminal sentence might suggest. See Blanton, 489 U.S. at 541-42 (―The judiciary
should not substitute its judgment as to seriousness for that of a legislature, which
is ‗far better equipped to perform the task, and is likewise more responsive to
changes in attitude and more amenable to the recognition and correction of their
misperceptions in this respect.‘‖) (brackets and citation omitted).
Alternatively, the Council could reconsider its decision to value judicial
economy above the right to a jury trial. Restoring the right to a jury trial in
misdemeanor cases could have the salutary effect of elevating the public‘s trust
and confidence that the government is more concerned with courts protecting
individual rights and freedoms than in ensuring that courts are as efficient as
possible in bringing defendants to trial. This may be an important message to send
at this time because many communities, especially communities of color, are
openly questioning whether courts are truly independent or are merely the end
game in the exercise of police powers by the state. Those perceptions are fueled
44
not only by reports that police officers are not being held responsible in the courts
for police involved shootings of unarmed suspects but is likely also promoted by
unwise decisions, like the one that authorized the placement of two large
monuments to law enforcement on the plaza adjacent to the entrance to the highest
court of the District of Columbia.
One of the ways that the founders sought to ensure that citizens were
protected from overreaching by the government was to guarantee a right to a jury
trial to anyone charged with a crime. John Adams is famously quoted as saying,
―Representative government and trial by jury are at the heart and lungs of liberty,‖
Rauf v. State, 145 A.3d 430, 465 n.216 (Del. 2016) (quoting Statement of John
Adams (1774)), and Thomas Jefferson ―consider[ed] a trial by jury as the only
anchor . . . imagined by man by which a government can be held to the principles
of its constitution.‖ Letter from Thomas Jefferson to Thomas Paine (July 11,
1789), in 15 The Papers of Thomas Jefferson, 27 March 1789-30 November 1789,
266 (Julian P. Boyd ed., 1958), http://founders.archives.gov/documents/
Jefferson/01-1502-0259. It is why the right to a jury trial is enshrined in the Sixth
Amendment to the Constitution. And, while the D.C. Council complied with the
letter of the law when it reduced the potential sentences for misdemeanor crimes to
a level that made them non-jury demandable, that decision made us one of the few
45
state court jurisdictions in the country that does not guarantee a right to a jury trial
for those charged with criminal misdemeanors.1 Most states recognize that a jury
trial in criminal cases is critically important because of the stigma that
1
The majority of jurisdictions provide for the right to a jury trial where a
―petty‖ offense is charged, see generally Fretes-Zarate v. United States, 40 A.3d
374, 378 n.3 (D.C. 2012) (noting that ―only nine states (Delaware, Louisiana
Mississippi, Nebraska, Nevada, New Jersey, New York, Pennsylvania, and Rhode
Island) and the District limit the right to a jury trial to individuals charged with
crimes carrying a sentence of more than 180 days‖). Three additional states place
some restrictions on the right to a jury trial for criminal offenses with penalties of
six months or less of incarceration but the outright denial of jury trials are much
more limited. In Arizona, the right to a jury trial for misdemeanor offenses
extends to charges only where the offense falls within a specific category,
regardless of whether the statutory offense bears a penalty of six months or less of
incarceration. See Derendal v. Griffith, 104 P.3d 147, 153-54 (Ariz. 2005) (en
banc) (delineating the test for determining jury eligibility for misdemeanor
offenses in Arizona); see also ARIZ. REV. STAT. ANN. § 28-1381 (2017) (providing
right to jury trial for misdemeanor offense of driving or actual physical control of a
vehicle while under the influence where maximum punishment is up to six months
incarceration); State v. Kalauli, 414 P.3d 690, 696 (Ariz. Ct. App. 2018) (noting
that ―one charged with violating the unified crime of theft is entitled to a jury trial,
regardless of the degree of the offense or the nature of the property alleged to have
been taken‖); cf. Fushek v. State, 183 P.3d 536, 540-41 (Ariz. 2008) (en banc)
(providing the right to a jury trial in any case where ―the state has made a special
allegation of sexual motivation‖). In North Carolina, individuals charged with
criminal misdemeanors are granted a bench trial first, then if found guilty, granted
a jury trial. See N.C.G.S.A. § 15-173. Similarly, in Virginia, a ―criminal
defendant . . . may be tried for a misdemeanor in a district court without a jury,
even though the misdemeanor carries a potential sentence in excess of six
months.‖ Right to trial by jury, VA. PRAC. CRIMINAL PROCEDURE § 16:3 (Dec.
2017) (citing Manns v. Com., 191 S.E.2d 810 (Va. 1972)). ―This is not a violation
of the federal constitutional standard because Virginia authorizes an appeal of right
and a trial de novo in the circuit court. The Virginia procedure thus extends
beyond the federal standard because it guarantees an eventual right to a jury trial
(continued . . .)
46
accompanies a criminal conviction and many of those states accept the fact that
any period of incarceration, no matter how short, can have a devastating impact on
one‘s life and livelihood. See, e.g., State v. Benoit, 311 P.3d 874, 882 (Or. 2013)
(en banc) (requiring that any defendant subjected to pretrial arrest and detention be
provided a jury trial, even if the state reduces such charge to a citation-only
violation, as ―[t]he stigma caused by criminal pre-charging procedures will not
disappear when the prosecutor elects to charge a civil infraction‖) (quoting State v.
Freeman, 487 A.2d 1175, 1178 (Me. 1985)); State v. Weltzin, 630 N.W.2d 406,
410 (Minn. 2001) (broadening the right to a jury trial to include all prosecutions
where the penalty includes any incarceration).
So, perhaps the answer to the anomaly created by our decision today is to
hew more closely to the plain language of the Sixth Amendment and make no
distinction between serious and petty crimes when it comes to an individual‘s right
to a jury trial. If the Council chooses this latter path, it will not only address the
disparity created by our attempt to faithfully apply Blanton in this case, but the
District would also be rejoining the majority of other states where a jury trial in a
______________________
(. . . continued)
regardless of the length of the possible sentence.‖ Id. (citing Va. Code Ann.
§§ 16.1-132, 16.1-136, and Ludwig v. Massachusetts, 427 U.S. 618 (1976)).
47
criminal case is the norm, and not the exception. To me, this latter approach has
many virtues.
THOMPSON, Associate Judge, concurring in the judgment: The Supreme
Court has instructed that, pursuant to the Sixth Amendment, a defendant who faces
a maximum prison term of six months or less ―is entitled to a jury trial . . . if he can
demonstrate that any additional statutory penalties, viewed in conjunction with the
maximum authorized period of incarceration, are so severe that they clearly reflect
a legislative determination that the offense in question is a ‗serious‘ one.‖ 1 Blanton
v. City of N. Las Vegas, 489 U.S. 538, 543 (1989) (emphasis added); United States
v. Nachtigal, 507 U.S. 1, 3-4 (1993). Especially after the Supreme Court‘s opinion
in Padilla v. Kentucky, 559 U.S. 356 (2010), I believe there is little room for
dispute that deportation or ―removal,‖ which the federal immigration statute
prescribes for non-citizens convicted of any of a broad range of crimes, is a
―particularly severe [statutory] penalty,‖ 2 id. at 365, and ―is an integral part —
1
For the reasons I explain, I believe the italicized language is critical to our
resolution of this appeal.
2
Deportation ―may result in the loss of all that makes life worth living.‖
Bridges v. Wixon, 326 U.S. 135, 147 (1945) (internal quotation marks omitted). It
(continued . . .)
48
indeed, sometimes the most important part — of the penalty that may be imposed
on noncitizen defendants who [are found] guilty [of] specified crimes.‖ Id. at 364
(footnote omitted); see also Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204,
1209 (2018) (reiterating that ―deportation is a particularly severe penalty, which
may be of greater concern to a convicted alien than any potential jail sentence,‖
and that ―removal proceedings [have become] ever more intimately related to the
criminal process‖ (internal quotation marks omitted)). Under the test set out in
Blanton, however, to determine whether the immigration statute‘s prescription of
deportation as an additional penalty for a non-citizen convicted of a specified
criminal offense triggers the Sixth Amendment right to trial by jury, we must also
ask whether the penalty of deportation ―clearly reflect[s]‖ a determination by
Congress that the offense is a ―‗serious‘ one.‖ Blanton, 489 U.S. at 543.
In my view, we have no basis for concluding that Congress‘s prescription of
deportation for non-citizens who are found to have committed any of the criminal
offenses to which the deportation penalty is attached clearly reflects a
determination by the legislature that all such offenses are serious ones. Congress
______________________
(. . . continued)
is ―at times the equivalent of banishment or exile.‖ Fong Haw Tan v. Phelan, 333
U.S. 6, 10 (1948).
49
has broadly declared as ―deportable‖ offenses everything from possession of any
more than 30 grams of marijuana to mass murder. Its declaration that conviction
— of any of a long list of enumerated but quite different types of offenses —
renders a non-citizen ―deportable‖ is scant if any evidence that it views the
offenses as serious in the Sixth Amendment sense. Indeed, as other courts have
recognized, in general, the immigration-law treatment of a non-citizen convicted of
a ―deportable‖ crime frequently turns not on the seriousness of the crime
committed but on the status of the non-citizen in other respects. For example, in
Reyes v. Holder, 714 F.3d 731 (2d Cir. 2013), the Second Circuit focused on the
fact that an unadmitted alien convicted of a deportable ―crime of moral turpitude‖
can qualify for a so-called ―petty offense exception‖ to removal, while ―[a]
conviction involving [the same] petty offense . . . may still render an admitted alien
deportable[.]‖ Id. at 735. 3 The Second Circuit explained that ―[a]lthough it may
seem anomalous that a legally admitted alien can be rendered ineligible for special
rule cancellation of removal while an unadmitted alien who committed the same
crime can remain eligible, we have previously noted that Congress‘s harsher
treatment of legal permanent residents (‗LPRs‘) may be justified on the basis that
3
―Under the petty offense exception, a conviction for an offense involving
moral turpitude does not render an unadmitted alien inadmissible . . . when (1) the
maximum penalty possible was a year or less, and (2) the alien was actually
sentenced to less than six months in prison.‖ Id.
50
‗an LPR‘s violation of American laws represents a greater betrayal or poses a
heightened concern of recidivism, and therefore calls for harsher measures under
the immigration laws.‘‖ Reyes v. Holder, 714 F.3d at 737 (quoting Jankowski-
Burczyk v. INS, 291 F.3d 172, 179 (2d Cir. 2002)) (citing Gonzalez-Gonzalez v.
Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (―LPRs enjoy substantial rights and
privileges not shared by other aliens, and therefore it is arguably proper to hold
them to a higher standard and level of responsibility than non LPRs.‖)). The Reyes
court also described Congress‘s action in amending the immigration statute in an
attempt to ―prevent the mass deportation of aliens who had arrived from some
former Soviet bloc and Central American nations,‖ by allowing them, including
individuals with certain criminal convictions, to apply for ―‗special rule‘ protection
from deportation.‖ Reyes, 714 F.3d at 733 (quoting Tanov v. INS, 443 F.3d 195,
199 (2d Cir. 2006)); see 8 C.F.R. § 1240.66 (c) (2014). It might be said in short
that immigration-law consequences of criminal conduct have less to do with the
seriousness of offenses and more to do with a variety of other congressional
policies and objectives with respect to characteristics of the offenders themselves.
Furthermore, in the immigration statute, Congress has afforded non-citizens
who have been convicted of some ―deportable‖ offenses avenues of relief to avoid
actual removal. See 8 U.S.C. § 1229b (a)(3) (―The Attorney General may cancel
51
removal in the case of an alien who is inadmissible or deportable from the United
States if the alien . . . has not been convicted of any aggravated felony‖ (emphasis
added)). This, I believe we can conclude, is a signal from Congress that some
offenses that expose non-citizens to the threat of deportation are not so serious
after all. At the very least, the fact that Congress has authorized cancellation of
removal for non-citizens convicted of any of a number of crimes precludes us from
finding that the general penalty of removal ―clearly reflect[s] a legislative
determination that [such] offense[s] . . . [are] ‗serious‘ one[s].‖ 4 Blanton, 489 U.S.
at 543. Stated differently, the provisions of the federal immigration statute that
render a convicted non-citizen ―deportable‖ do not ―furnish[] us with [an] objective
criterion by which a line could . . . be drawn . . . between offenses that [Congress
does or does not] regard[] as ‗serious[.]‘‖ Baldwin v. New York, 399 U.S. 66, 72-
73 (1970).
By contrast, with respect to one category of offenses — those that Congress
has termed ―aggravated felonies‖ — Congress has given what I believe are clear
4
That is, the fact that a non-citizen, upon conviction of a particular offense,
is rendered ―deportable‖ pursuant to one provision of the immigration statute,
cannot be taken as a clear measure of the seriousness of the offense where, under
another provision of the same statute, Congress has created a path for the convicted
non-citizen to avoid deportation.
52
signals that it regards the offenses as serious. In 8 U.S.C. § 1229b (a)(3), Congress
has provided that (―[t]he Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United States if the alien . . . has
not been convicted of any aggravated felony‖ (emphasis added)). As the Supreme
Court recognized just this term in Dimaya, ―removal is a virtual certainty for an
alien found to have an aggravated felony conviction.‖ 584 U.S. at , 138 S. Ct. at
1211; see also Lopez v. Gonzales, 549 U.S. 47, 50 (2006) (―[T]he Attorney
General‘s discretion to cancel the removal of a person otherwise deportable does
not reach a convict of an aggravated felony.‖); United States v. Couto, 311 F.3d
179, 183-84 (2d Cir. 2002) (―[T]he Immigration and Nationality Act eliminated all
discretion as to deportation of non-citizens convicted of aggravated felonies[.]‖); 8
C.F.R. § 1240.66 (c)(1) (2018) (providing that a non-citizen is ineligible for special
rule cancellation if he or she has an aggravated felony conviction); Susan Pilcher,
Justice Without a Blindfold: Criminal Proceedings and the Alien Defendant, 50
Ark. L. Rev. 269, 329 (1997) (―[A]voidance of an aggravated felony charge will
often be of paramount concern, even at the cost of pleading guilty to an arguably
more serious crime of moral turpitude, insofar as options for relief from
deportation or waivers of future inadmissibility may remain available for the
latter.‖).5
5
There are a few avenues of limited relief for a non-citizen who has been
(continued . . .)
53
Further, in 8 U.S.C. § 1158 (b)(2)(A)(ii), Congress has provided that a non-
citizen is ineligible for asylum if the Attorney General determines that the non-
citizen, ―having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of the United States.‖ And through 8 U.S.C.
§ 1158 (b)(2)(B)(i) (2006), it has provided in addition that ―an alien who has been
convicted of an aggravated felony shall be considered to have been convicted of a
particularly serious crime‖ for the purpose of 8 U.S.C. § 1158 (b)(2)(A)(ii). See
Santos-Infante v. Att’y Gen. of the United States, 574 F. App‘x 142, 145 n.2 (3d
Cir. 2014) (―An alien convicted of an aggravated felony is considered to have been
convicted of a particularly serious crime for purposes of the asylum statute. . . .
Such an alien is ineligible for asylum.‖).
______________________
(. . . continued)
convicted of an aggravated felony. Such a non-citizen may be eligible for
withholding or deferral of removal in accordance with this nation‘s obligations
under the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT). See 8 U.S.C. § 1231 (b)(3)(A) (2006) (providing
that the Attorney General ―may not remove an alien to a country if the Attorney
General decides that the alien‘s life or freedom would be threatened in that country
because of the alien‘s race, religion, nationality, membership in a particular social
group, or political opinion‖); 8 C.F.R. § 1208.16 (c)(2) (2018) (providing for
withholding of removal if the non-citizen establishes that ―it is more likely than not
that he or she would be tortured if removed to the proposed country of removal‖);
8 C.F.R. § 1208.17 (a) (2018) (providing for deferral of removal to the country
where a non-citizen ―is more likely than not to be tortured‖). But these types of
relief do not preclude the non-citizen from being deported to another country. See
8 C.F.R. § 1208.16 (f) (2018) (―Nothing in [§ 1208.16 or in 8 C.F.R.] § 1208.17
(continued . . .)
54
As I explained in my now-vacated opinion for the Division in this matter, if
we are to take potential immigration consequences into account as a measure of the
seriousness of an offense in Congress‘s estimation, I believe it is appropriate to
look to whether Congress has at the same time provided avenues of relief whereby
individuals convicted of a deportable offense may have the penalty of removal
canceled — and, conversely, to whether, as to some deportable offenses, Congress
has statutorily shut down all avenues of relief from removal. Congress‘s harsh
treatment of non-citizens convicted of aggravated felonies, admitting of no
exceptions, leaves no room for doubt that Congress views these as serious
offenses, no matter the status of the offender. In light of the bars to relief from
removal for non-citizens who have been convicted of aggravated felonies, I am
satisfied that the crimes Congress has designated as falling within this category are
offenses for which Congress has mandated statutory penalties that ―clearly reflect a
legislative determination that the offense[s] . . . [are] ‗serious‘ one[s].‖ Blanton,
489 U.S. at 543.
______________________
(. . . continued)
shall prevent the Service from removing an alien to a third country other than the
country to which removal has been withheld or deferred.‖).
55
The parties agree that appellant Bado, a non-citizen, was convicted of an
aggravated felony. See 8 U.S.C. § 1101 (a)(43)(A) (defining ―aggravated felony‖
to include ―sexual abuse of a minor‖). At the time he made his jury demand, it was
known that conviction of the crimes with which he was charged (three counts of
misdemeanor sexual abuse of a child, in violation of D.C. Code § 22-3010.01
(2001)) would render him ineligible for cancellation of removal and ineligible for
the asylum he was actively seeking before an immigration judge at the time he
went to trial in the instant matter. Thus, he was charged with offenses that exposed
him to inevitable statutory penalties, an inevitability by which Congress has clearly
signaled that it regards the offenses as serious. For that reason, applying the
teaching of Blanton, I conclude that Mr. Bado was entitled to a jury trial. 6
6
It is worth noting that many (if not most) of the offenses designated as
―aggravated felonies‖ under the federal immigration statute have statutory
maximum periods of imprisonment under District of Columbia law that are in
excess of 180 days, meaning that a defendant facing trial for them in the District of
Columbia is already statutorily entitled to a jury trial. See, e.g., 8 U.S.C. § 1101
(a)(43)(F) (treating a ―crime of violence . . . for which the term of imprisonment
[is] at least one year‖ as an aggravated felony); 8 U.S.C. § 1101 (a)(43)(G)
(treating ―a theft offense (including receipt of stolen property) or burglary offense
for which the term of imprisonment [is] at least one year‖ as an aggravated felony);
see also Lopez v. Gonzales, 549 U.S. 47, 55-60 (2006) (holding that for a drug
crime to be an aggravated felony, it must be an offense for which the maximum
term of imprisonment authorized for the offense under federal law is more than one
year).
56
One final observation: The rationale I have set out above would afford non-
citizens a jury trial when they are threatened almost inevitably with removal from
this country (a fate that may be of greater concern to a convicted non-citizen than
any jail sentence). It does so, however, without expanding the right to a jury trial
to non-citizens in circumstances that (as Senior Judge Washington notes in his
concurrence) may be impossible to distinguish from those of our fellow citizens
who likely will face severe collateral consequences from misdemeanor
convictions, but who, under our statutory and case law, have no right to a jury trial.
For this reason, too, I believe the rationale and result set out above are the
most appropriate resolution of the issue presented in this case.
GLICKMAN, Associate Judge, with whom FISHER, Associate Judge, joins,
dissenting: I join Judge Fisher‘s dissent and wish only to elaborate on one point.
In Blanton v. City of N. Las Vegas, the Supreme Court instructed that the Sixth
Amendment right to a trial by jury turns on the seriousness of the charged offense
in the eyes of the legislature that enacted it, as indicated by the severity of the
penalties that legislature chose to attach to the offense. 1 ―A defendant is entitled to
1
See 489 U.S. 538, 541-43 (1989). It perhaps is something of an open
question whether non-punitive consequences are to be considered as penalties for
(continued . . .)
57
a jury trial . . . only if he can demonstrate‖ that those penalties – which consist of
―the maximum authorized period of incarceration‖ together with ―any additional
statutory penalties‖ – ―are so severe that they clearly reflect a legislative
determination that the offense in question is a ‗serious‘ one.‖ 2 The views of other
legislatures about the seriousness of the offense, and any additional penalties other
legislatures impose upon persons convicted of that offense, are irrelevant to
whether a particular defendant is entitled to a jury trial in a prosecution for that
offense by the jurisdiction that enacted it. 3
______________________
(. . . continued)
the purpose of determining whether there is a constitutional right to a jury trial. I
am inclined to think that only statutory penalties intended as or equating to
criminal punishment should be considered. See id. at 541-42 (―In fixing the
maximum penalty for a crime, a legislature ‗include[s] within the definition of the
crime itself a judgment about the seriousness of the offense.‘ . . . We thus examine
‗whether the length of the authorized prison term or the seriousness of other
punishment is enough in itself to require a jury trial.‘‖) (emphasis in the original;
citations omitted). Despite its severity, the removal or deportation of an alien
under federal immigration law is not criminal punishment. See, e.g., Padilla v.
Kentucky, 559 U.S. 356, 365 (2010).
2
Blanton, 489 U.S. at 543 (emphasis added).
3
See id. at 545 n.11 (―We decline petitioners‘ invitation to survey the
statutory penalties for [the charged crime] in other States. The question is not
whether other States consider [the charged crime] a ‗serious‘ offense, but whether
Nevada does.‖). My colleagues in the majority appear to misunderstand Blanton‘s
statement that the Supreme Court has ―frequently looked to the federal
classification scheme in determining when a jury trial must be provided.‖ Id.; see
ante at 27 n.29. The Court viewed Congress‘s (former) definition of a ―petty‖
offense (as a misdemeanor for which the maximum penalty did not exceed
(continued . . .)
58
The legislature that enacted the offense in the present case – misdemeanor
sexual abuse of a minor – was the Council of the District of Columbia. A
noncitizen defendant‘s conviction of that offense exposes him to the revocation of
his or her privilege to remain in this country only under federal immigration law –
law enacted by Congress. Deportation is a very severe penalty, but it is not a
seriousness-defining penalty attached to misdemeanor sexual abuse of a minor by
______________________
(. . . continued)
imprisonment for six months and a $5,000 fine) as a relevant indicator of what
constitutes a ―petty‖ offense for Sixth Amendment purposes and whether the
penalties imposed by a State for a given offense are severe enough to trigger the
constitutional right to a jury trial. In no way does this imply that Congress‘s own
view of the seriousness of a State offense or the add-on consequences imposed by
Congress in the event of a conviction of a State offense have any bearing on
whether the defendant has a right to a jury trial in a State prosecution for that
offense. See also Ivy v. United States, 2010 U.S. Dist. LEXIS 28933,*8 (W.D. Ky.
March 26, 2010) (holding the fact that defendant, if convicted in Kentucky, would
have to register as a sex offender in Tennessee did not affect the Blanton analysis
because ―Tennessee‘s view of the seriousness of the Kentucky statute is not
relevant to determination of the seriousness of that statute‖); Rauch v. United
States, 2007 U.S. Dist. LEXIS 72616, *8-*9 (E.D. Cal. Sept. 28, 2007) (obligation
under California law to register as a sex offender upon conviction of federal
misdemeanor offense did not entitle defendant to a jury trial on that offense;
―Congress enacted 18 U.S.C. Section 2244 (b), not the California legislature. Thus
the view of the State of California as to the seriousness of the offense is not
relevant. Further, only ‗statutory penalties‘ are to be considered as to the
seriousness of the offense, and California‘s registration requirement is not a
‗statutory penalty‘ for this offense, as it was not enacted by Congress in
conjunction with Section 2244 (b).‖).
59
the legislature that enacted the offense. 4 It therefore has no bearing on whether the
defendant is entitled to a jury trial in a prosecution for the crime.
Under District of Columbia law, the gravity of misdemeanor sexual abuse of
a minor is the same regardless of whether the crime is committed by a citizen or by
an alien subject to removal. The maximum penalties that the District of Columbia
Council has chosen to impose for commission of this offense by either a citizen or
an alien are the same – 180 days in prison and a $1,000 fine 5– and they clearly are
not onerous enough by themselves to trigger a right to a jury trial. A defendant
convicted of misdemeanor sexual abuse of a minor also is required to register as a
sex offender for ten years under the District of Columbia Sex Offender
Registration Act (―SORA‖).6 The SORA is ―not punitive and does not inflict
4
Although the District of Columbia is not a State, and its government is a
creation of Congress, I take it as a settled principle of Home Rule that we do not
conflate Council legislation with Congressional legislation and that the principles
enunciated in Blanton apply here.
5
The District of Columbia also assesses up to $250 ―[i]n addition to and
separate from punishment imposed‖ for a misdemeanor conviction. D.C. Code §
4-516 (a) (2012 Repl.).
6
See D.C. Code § 22-4001 (2012 Repl.).
60
punishment,‖7 however, and this court previously has held that addition of the
registration requirement does not render misdemeanor child sexual abuse a jury-
demandable offense under the Sixth Amendment. 8 I conclude that appellant did
not have a constitutional right to a jury trial in the present case.
Accordingly, for the above reasons (and for the reasons set forth in Judge
Fisher‘s dissent), I respectfully dissent.
FISHER, Associate Judge, with whom GLICKMAN, Associate Judge, joins,
dissenting: According to the majority, a citizen charged with misdemeanor sexual
abuse of a child does not have a right to a jury trial, but a noncitizen charged with
the very same offense does. This is a startling result, neither compelled nor
justified by Supreme Court precedent. It most certainly is not, as the majority
asserts, ―a straightforward application of a Blanton analysis.‖ Maj. Op. at 16.
Under Blanton, the seriousness of the offense is not measured on a case-by-case
basis. Moreover, in my judgment, the prospect of removal (even the certainty of
7
In re W.M., 851 A.2d 431, 446 (D.C. 2004); see also In re Doe (“S.D.”),
855 A.2d 1100, 1102 (D.C. 2004) (―SORA is a remedial regulatory enactment and
not a penal law[.]‖).
8
Thomas v. United States, 942 A.2d 1180, 1186 (D.C. 2008).
61
removal) from the United States is not relevant to determining whether the crime is
a ―serious‖ offense to which the right of trial by jury applies.
If the maximum term of imprisonment is six months or less, a crime ―is
presumptively a petty offense to which no jury trial right attaches.‖ United States
v. Nachtigal, 507 U.S. 1, 4 (1993). A defendant may rebut this presumption, but
―only if he can demonstrate that any additional statutory penalties, viewed in
conjunction with the maximum authorized period of incarceration, are so severe
that they clearly reflect a legislative determination that the offense in question is a
‗serious‘ one.‖ Blanton v. City of N. Las Vegas, 489 U.S. 538, 543 (1989). This
will be a ―rare situation,‖ the Court observed. Id. Indeed, ―there has not yet been a
case in which the [Supreme] Court found that an offense with a maximum
authorized incarceration period of 6 months was a serious one so as to require a
jury trial under the Sixth Amendment.‖ State v. Woolverton, 371 P.3d 941, 944
(Kan. App. 2016).
Under Blanton and related Supreme Court decisions, the right to a jury trial
turns on the seriousness of the charged offense in the eyes of the legislature that
created it, as indicated by the severity of the penalty authorized and made
applicable across the board to anyone who commits it. ―In fixing the maximum
62
penalty for a crime, a legislature ‗include[s] within the definition of the crime itself
a judgment about the seriousness of the offense.‘‖ Blanton, 489 U.S. at 541
(quoting Frank v. United States, 395 U.S. 147, 149 (1969)). The seriousness of the
offense is not measured on a case-by-case basis by the varying additional
consequences an individual defendant might suffer based on his own
circumstances unrelated to commission of the crime.
The key question for us—one that the Supreme Court has not addressed—is
whether deportation or removal (a consequence imposed by a different legislature)
is the type of penalty that counts for purposes of determining the right to a jury
trial. I think it does not. Deportation or removal is not part of the criminal penalty.
It is, rather, a result (serious, no doubt) of abusing the privilege of living in this
country.
We have addressed this question in three previous cases, each time rejecting
the argument. Foote v. United States, 670 A.2d 366, 372 (D.C. 1996) (―[T]he
remedies which Foote seeks to treat as criminal penalties could be imposed only in
hypothetical civil or administrative proceedings (e.g., eviction, forfeiture of assets,
deportation or exclusion, driver‘s license revocation).‖); Olafisoye v. United States,
857 A.2d 1078, 1084 (D.C. 2004) (―[A]dministrative deportation proceedings do
63
not raise an otherwise petty offense to the level requiring a jury trial.‖); Fretes-
Zarate v. United States, 40 A.3d 374, 374 (D.C. 2012) (post-Padilla decision
applying plain error standard of review and rejecting defendant‘s argument ―that
she had a constitutional right to a trial by jury for [simple assault] because a
conviction subjects her to deportation under federal immigration law‖). These
decisions do not bind the en banc court, and some of this language may be dictum,
but the reasoning is sound.
My colleagues rely much too heavily on Padilla v. Kentucky, 559 U.S. 356
(2010), which addressed a claim of ineffective assistance of counsel but said
nothing about the right to a jury trial. It is one thing to say (as Padilla did) that a
lawyer is required to assist her client in understanding the immigration
consequences he will face by pleading guilty (regardless of whether those
consequences are called ―collateral‖ or ―direct‖). It is quite a different matter to
conclude that the downstream consequence of deportation transforms a petty
offense into a serious one.
Padilla does describe ―deportation [as] an integral part—indeed, sometimes
the most important part—of the penalty that may be imposed on noncitizen
defendants who plead guilty to specified crimes.‖ Padilla, 559 U.S. at 364
 64
(footnote omitted). Nevertheless, the Supreme Court acknowledged, ―it is not, in a
strict sense, a criminal sanction.‖ Id. at 365. That acknowledgment makes all the
difference. We should not lose sight of the fact that Padilla did not purport to
address the question presented here.
The fact that removal will be a consequence if one is convicted of a certain
crime does not mean it is a penalty or punishment that overcomes the presumption
that the charge is a petty offense. 1 ―Primary emphasis . . . must be placed on the
maximum authorized period of incarceration.‖ Blanton, 489 U.S. at 542. The
operation of this principle is shown in cases of defendants who happen to be on
probation (or another form of supervised release) for an earlier offense. Even the
1
When applying other constitutional protections, the Supreme Court has
deemed it ―well settled that deportation, while it may be burdensome and severe
for the alien, is not a punishment.‖ Mahler v. Eby, 264 U.S. 32, 39 (1924). As a
result, courts have held that removal from the United States does not implicate the
constitutional prohibitions against ex post facto laws, Harisiades v. Shaughnessy,
342 U.S. 580, 594-95 (1952); double jeopardy, De La Teja v. United States, 321
F.3d 1357, 1364-65 (11th Cir. 2003); or cruel and unusual punishment, Eid v.
Thompson, 740 F.3d 118, 126 (3d Cir.), cert. denied, 135 S. Ct. 175 (2014),
because deportation is not a criminal punishment. The Supreme Court has also
held that evidence obtained in violation of the Fourth Amendment‘s prohibition
against unreasonable searches and seizures cannot be excluded from deportation
proceedings, recognizing that ―[t]he purpose of deportation is not to punish past
transgressions . . . .‖ I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984); see
also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999)
(―While the consequences of deportation may assuredly be grave, they are not
imposed as a punishment . . . .‖).
65
predictable consequence of additional incarceration does not count as part of the
punishment when determining whether a jury trial is required.
For example, in Brown v. United States, 675 A.2d 953 (D.C. 1996), the
defendant‘s conviction of a new offense led another judge to revoke his probation
for a prior conviction, and he was sentenced to serve an additional 120 days in
prison. Brown argued that this added punishment entitled him to a jury trial. We
rejected that argument, holding that ―[t]he fact that this revocation was triggered by
the present offense does not make the additional 120 days in prison part of the
punishment for this second offense.‖ Id. at 955. Similarly here, removal may be
triggered by the criminal conviction, but that causal link does not make removal
part of the punishment for the crime.
It has mattered to us before, and it should matter still, that removal is not
part of the criminal process. It is not within the power of the trial judge to impose
that consequence. See Foote, 670 A.2d at 370, 372 (pointing out that ―these
sanctions and remedies [including ―exclusion or deportation from the United
States‖] are not punishment for violations of the drug possession or PDP statutes,
and the trial judge had no authority to impose them as part of Foote‘s sentence‖);
People v. Suazo, 45 N.Y.S.3d 31, 32 (N.Y. App. Div.) (―Despite the gravity of the
66
impact of deportation on a convicted defendant (see Padilla . . . ), deportation
consequences are still collateral . . . and do not render an otherwise petty offense
‗serious‘ for jury trial purposes.‖), leave to appeal granted, 29 N.Y.3d 1087
(2017).
The maximum period of incarceration is not the only relevant penalty, but
Blanton requires us to ask whether any ―additional statutory penalties, viewed in
conjunction with the maximum authorized period of incarceration, are so severe
that they clearly reflect a legislative determination that the offense in question is a
‗serious‘ one.‖ 489 U.S. at 543. When honoring this command, we must keep
firmly in mind that we are dealing here with two different legislatures. The
immigration laws are enacted by Congress, while the offense at issue here was
created by the Council of the District of Columbia.
Under Blanton‘s holding, ―[t]he judiciary should not substitute its judgment
as to seriousness for that of a legislature.‖ 489 U.S. at 541. The government
therefore urges us to focus on the penalties assigned by the Council, the legislature
which created the offense. See id. at 545 n.11 (declining ―invitation to survey the
statutory penalties for drunken driving in other States. The question is not whether
other States consider drunken driving a ‗serious‘ offense, but whether Nevada
67
does.‖). The majority quickly dismisses this important question. 2 But the ―same
legislature‖ argument mattered to us in Brown, where the defendant argued that the
crime of drug possession was a ―serious‖ offense because federal law punished the
equivalent crime by a maximum penalty of one year in prison. We concluded that
―[t]he question is not whether some other legislative authority, such as Congress,
considers an offense ‗serious,‘ but whether the Council of the District of Columbia
does so.‖ Brown, 675 A.2d at 955.3
Does the seriousness of the offense vary depending on the identity of the
defendant? The Supreme Court has never suggested that it does. To the contrary,
2
Congress has plenary power to legislate for the District of Columbia and
may enact our criminal laws. U.S. Const., art. I, § 8, cl. 17. I thus do not question
Congress‘s power to enact a penal statute applicable exclusively to the District of
Columbia which provides that any noncitizen found guilty of misdemeanor sexual
abuse of a child shall be removed from the country as part of the punishment for
committing that crime. But that is only a theoretical possibility. Congress has not
purported to do so here.
3
See also Amezcua v. Eighth Judicial Dist. Ct., 319 P.3d 602, 605 (Nev.
2014) (potential federal immigration consequences ―are not relevant because they
do not reflect a determination by the Nevada Legislature that first-offense domestic
battery is a serious offense‖), cert. denied, 134 S. Ct. 2895 (2014); cf. State ex rel.
McDougall v. Strohson, 945 P.2d 1251, 1256 (Ariz. 1997) (in determining whether
defendant has right to jury trial under Arizona Constitution, Arizona courts have
traditionally ―look[ed] only to the consequences of conviction under Arizona law‖;
―[W]e do not consider the risk of deportation in determining whether the defendant
is entitled to a jury trial on the state charge.‖).
68
the Court has emphasized that the focus must be on the offense charged, ―not the
particularities of an individual case.‖ Lewis v. United States, 518 U.S. 322, 328
(1996). In Lewis, for example, the defendant was charged with two petty offenses
and faced a potential aggregate sentence of twelve months‘ imprisonment.
Nevertheless, the Court rejected his claim that he should have been tried by a jury:
―Where we have a judgment by the legislature that an offense is ‗petty,‘ we do not
look to the potential prison term faced by a particular defendant who is charged
with more than one such petty offense.‖ Id. (emphasis in original). 4
To be sure, a recidivist may be entitled to a jury trial when a first offender
would not be, but that is because the penal statutes expressly subject him to a
longer period of incarceration. In other words, a recidivist is deemed to have
committed an aggravated form of the offense—in essence, a different offense with
a different maximum sentence.
4
See also State ex rel. McDougall v. Strohson, 945 P.2d 1251, 1256 (Ariz.
1997) (―In our earlier cases, we have never determined jury eligibility based upon
an analysis of the individual defendant before the court. If we were to do so now,
we would have the anomalous situation where some persons would be entitled to a
jury trial and others would not, although charged with exactly the same substantive
Arizona crime.‖).
69
Apart from being unprecedented, the majority‘s analysis enormously
complicates the practice of criminal law. ―Immigration law can be complex, and it
is a legal specialty of its own.‖ Padilla, 559 U.S. at 369. The majority‘s holding
signals that issues of immigration law will become the central focus of criminal
litigation whenever a noncitizen has been charged with an offense that ordinarily
does not require a trial by jury. Trial judges and practitioners of criminal law will
have to acquire the expertise to make these judgments. See Suazo, 45 N.Y.S.3d at
32 (finding it ―to be highly impracticable . . . to analyze the immigration
consequences of a particular conviction on the particular defendant‖). I would not
add this complexity unless convinced that the Supreme Court has required it.
Although the majority chooses not to think about them, Maj. Op. at 32 n.34,
further complications are certain to follow. Defendants inevitably will rely upon
the majority‘s flawed analysis in an effort to distinguish themselves from others
charged with the same offense. Will a doctor who stands to lose his professional
license if convicted be entitled to a jury trial although a day laborer will not? 5
5
But see Smith v. United States, 768 A.2d 577, 580 (D.C. 2001) (―[W]e
have no difficulty concluding that the legislature did not intend that potential
termination [of police officer defendant if convicted should] elevate a petty crime
such as simple assault to a jury-demandable offense.‖).
70
What about a defendant who may be evicted from public housing or lose (or be
denied) other government benefits if he is convicted?6
A citizen charged with this offense would not be entitled to a jury trial. The
answer should be the same for Mr. Bado. I respectfully dissent.
6
I also note the incongruity of treating a misdemeanor as an ―aggravated
felony.‖ The government does not protest, so the issue is not before us, and there
is immigration law which endorses this oddity. Nevertheless, it is not clear to me
that the Supreme Court would agree that misdemeanor sexual abuse of a child is an
aggravated felony. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1570
(2017) (noting that ―the INA lists sexual abuse of a minor in the same
subparagraph as ‗murder‘ and ‗rape,‘ [8 U.S.C.] § 1101 (a)(43)(A)—among the
most heinous crimes it defines as aggravated felonies. § 1227(a)(2)(A)(iii). The
structure of the INA therefore suggests that sexual abuse of a minor encompasses
only especially egregious felonies.‖).