Deportability and Removal Proceedings
An immigrant in removal proceedings faces charges of deportability and inadmissibility. Deportability deals with the ability of an immigrant to remain in the United States. The government will charge an immigrant using the Notice to Appear, the charging document, with the alleged deportation grounds. The government bears the burden of proving deportability in removal proceedings.
Convictions for Immigration Purposes
Under INA § 101(a)(48), a conviction for immigration purposes is defined as:
The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where:
- a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted enough facts to warrant a finding of guilt, and
- the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
For immigration purposes, a withhold of any type still counts as a conviction.
The categorical and non-categorical approaches are methods used for inadmissibility and deportability in immigration law. The categorical approach compares a state statute to the federal equivalent to determine whether it is a deportable offense. This takes place without resorting to any outside records. The determining factor is whether the state statute is broader than the federal statute. If the state and the federal statutes match, then the statute is a deportable offense. If not, the modified categorical approach will be used.
A divisible statute is a law that includes various offenses. A divisible statute allows a court to reach beyond the statute to determine whether a statute is deportable. The court would go beyond the statute, to the record of conviction and police reports, to determine the individual’s conduct to ascertain deportability.
Under INA 101(a)(48)(B), any crimes or conviction after September 30,, 1996 may form a basis for removal. Any time of incarceration or confinement ordered by a judge may subject someone to deportation. Even suspended sentences may be used for immigration purposes. A sentence that is vacated, even for immigration purposes, the new sentence will be used to determine deportability. Matter of Cota, 23 I&N Dec. 849 (BIA 2005). However, an immigrant may not collaterally attack his conviction in immigration court and should do so in criminal proceedings.
In Padilla v. Kentucky, the United States Supreme Court ruled that a criminal attorney must inform a client of the immigration consequences of his plea.
A Crime Involving Moral Turpitude makes an immigrant or a lawful permanent resident deportable. To meet the definition, the immigrant 1) was convicted, 2) of a crime involving moral turpitude, 3) committed within 5 years of admission, 4) of a crime where a term of more than one year may be imposed.
A lawful permanent resident who has been 1) convicted of multimer crimes involving moral turpitude, 2) at any time after admission, and 3) not arising of the same criminal misconduct. Crimes involving moral turpitude are very serious crimes. You should consult with an immigration attorney before entering a plea. If you were placed in removal proceedings, please call us to discuss your case.
Any individuals who have been drug abusers or have been convicted of a drug related crime may be deportable. A lawful permanent resident who has been convicted of a drug related crime could apply for waivers. However, these waivers would be unavailable if the individual has been convicted of an aggravated felony drug trafficking. There is an exception, however, for first time offenses for less that 30 grams of marijuana.
The Service can also charge deportability if the person was convicted of a drug trafficking crime. Drug trafficking aggravated felonies are chargeable when:
- If the conviction meets the definition of trafficking
- If a state offense is equivalent to a federal trafficking felony
Aggravated felonies have grave consequences, such as the inability to obtain naturalization and readmission into the United States. The government may also use the “reason to believe” ground for inadmissibility purposes.
INA § 101(a)(43) makes a person who has been convicted of an aggravated felony deportable. The statue lists the following crimes as aggravated felonies:
- Murder, rape or sexual abuse of a minor;
- illicit trafficking in a controlled substance;
- illicit trafficking in firearms or destructive devices;
- Money laundering;
- Explosive and firearms offenses;
- Crime of violence;
- Theft or burglary offenses for which the term of imprisonment is one year;
- Ransom crimes;
- Child pornography;
- Racketeering crimes for which one-year imprisonment may be imposed;
- Prostitution, trafficking, and involuntary servitude;
- Fraud or deceit crimes where the loss to the victim is more than $10,000;
- Alien smuggling;
- Counterfeiting or mutilating passports;
- Failure to appear by a defendant for a crime for which 5 years of imprisonment may be imposed;
- Obstruction of justice; and
- Conspiracy or attempt to commit any of the crimes above.
Aggravated felonies have serious consequences and you should consult with an immigration attorney before entering a plea to any of the above.
Crimes of Violence
Any person who is convicted of a crime of violence may be deportable. A crime of violence is defined under 18 USC 16. The United States Supreme Court has ruled in Sessions v. Dimaya that the statute was unconstitutionally vague. The law is unsettled on this line of cases. Please stay tuned on updates.
Please give us a call if you are an immigrant accused of any of these crimes.