Non-citizens Have a Right to a Jury Trial on Misdemeanor Charges if Deportation Will Be a “Virtually Inevitable” Consequence of Conviction

Jean-Baptiste Bado v. United States (decided July 16, 2015)

Players: Associate Judges Fisher and Thompson, Senior Judge Ruiz. Opinion by Judge Thompson. Concurring opinions by Judge Thompson and Judge Ruiz. Dissenting opinion by Judge Fisher. D.C. Law Students in Court for Mr. Bado. Trial judge: Stuart G. Nash. Motions judge: Jennifer M. Anderson.

Facts: Mr. Bado, a political asylum applicant from Burkina Faso, was charged with three counts of misdemeanor sexual abuse of a child based on allegations that he touched his teenage stepdaughter. He demanded a jury trial on these charges, arguing that trial by jury was required because the possible consequences of conviction—including deportation pursuant to federal immigration laws—were so severe. The motions judge denied that request. After a two-day bench trial, Mr. Bado was convicted of one count of misdemeanor sexual abuse of a child, sentenced to the statutory maximum of 180 days’ incarceration, and ordered to register as a sex offender.

Issue: Does a non-citizen defendant have a Sixth Amendment right to a jury trial on misdemeanor charges that are presumptively petty offenses for Sixth Amendment purposes where the misdemeanor qualifies as an “aggravated felony” under federal immigration law, meaning that conviction would “virtual[ly] inevitabl[y]” result in deportation?

Holding: Yes. When a non-citizen is charged with a misdemeanor that qualifies as an “aggravated felony” under federal immigration law, such that conviction would result in deportation, the offense “must be deemed a serious rather than petty crime for purposes of the Sixth Amendment,” and the defendant is entitled to a jury trial.

Of Note:

• The majority opinion does not reach the question whether any offenses that carry a potential consequence of deportation for non-citizens but do not constitute “aggravated felonies” “should be deemed serious for purposes of the Sixth Amendment jury trial right.”

• In a separate concurrence, Judge Thompson clarifies her position that the fact that a conviction will render a non-citizen deportable is not enough to trigger the Sixth Amendment jury trial right. In her view, it is the categorical unavailability of relief from deportation for those convicted of “aggravated felonies” that shows that Congress regards these offenses as “serious in the Sixth Amendment sense.”

• Senior Judge Ruiz’s concurrence takes the broader view that because the Sixth Amendment analysis “looks to the ‘severity of the maximum authorized penalty’ in assessing whether an offense is serious and warrants the right to a jury trial,” an offense is “serious” if the immigration statute authorizes deportation as a consequence of conviction, regardless of “whether implementing officials have discretion to grant relief to certain limited classes of individuals or are precluded from doing so.” 

• In dissent, Judge Fisher explains his belief that deportation is not “the type of penalty that counts for purposes of determining the right to a jury trial.” MW

Read full opinion here.