Kwong v. Holder

A state court’s abstract of judgment is sufficient to establish the crime for which a defendant was convicted for purposes of finding a lawful permanent resident removable.

Chen Piu Kwong, a native of the People’s Republic of China and a lawful permanent resident of the United States, was found removable as an alien “convicted of an aggravated felony” under U.S.C. 1227(a)(2)(A)(iii). In his petition for review, Kwong argues that the Immigration Judge (IJ) erred in relying on the state court’s abstract of judgment to prove that his first-degree burglary conviction was an aggravated felony. Citing precedent, the Court found that first-degree burglary under California law is a “crime of violence” as defined by 18 U.S.C. § 16(b). In so doing, the Court rejected Kwong’s argument that because California’s definition of first-degree burglary is broader than the generic definition of burglary, it cannot constitute a crime of violence. The Court also held that the IJ did not err in relying on the abstract of judgment to find that Kwong was convicted of first-degree burglary. The Court found its decision in United States v. Snellenberger controlling. In Snellenberger, the Court held that a clerk’s minute order is sufficient to prove the crime for which a defendant was convicted. It is enough, the Court reasoned in Snellenberger, that the “minute order was prepared by a neutral officer of the court [charged by law with recording the proceedings accurately], and that the defendant had the right to examine and challenge its content.” The Court found no meaningful difference between a minute order and an abstract of judgment: the abstract “is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence.” Finally, the Court rejected Kwong’s claim of ineffective assistance of counsel, because the record lacked any indication that counsel’s performance was “unconstitutionally ineffective.” PETITION FOR REVIEW DENIED.