CONVICTION - DEPORTATION - FOREIGN CONVICTIONS - CONGRESS EXCLUDED FOREIGN CONVICTIONS FROM CONVICTIONS TRIGGERING DEPORTATION, EXCEPT WHERE IT EXPRESSLY PROVIDED OTHERWISE
Small v. United States, ___ U.S. ___ (April 26, 2005) (18 U.S.C. 922(g)(1), which prohibits a person who has been "convicted in any court" from possessing a firearm, encompasses only domestic, not foreign, convictions), abrogating United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989), and United States v. Winson, 793 F.2d 754, 757-759 (6th Cir. 1986).
http://laws.findlaw.com/us/000/03-750.html       In Small v. United States, ___ U.S. ___ (April 26, 2005), the United States Supreme Court held that 18 U.S.C. 922(g)(1), which prohibits a person who has been "convicted in any court" from possessing a firearm, encompasses only domestic, not foreign, convictions. This suggests an argument that Congress excluded foreign convictions from those convictions which trigger deportation, except where it expressly provided otherwise.      For aggravated felonies, for example, foreign convictions falling within the aggravated felony definition were expressly listed by Congress as constituting aggravated felonies, but only if the term of imprisonment was completed within the previous 15 years. INA 101(a)(43), 8 U.S.C. 1101(a)(43). Foreign convictions not meeting this test do not fall within the definition.      There is an argument that no foreign conviction can trigger deportability. Congress certainly knew how to provide for the effects of foreign convictions if it wished to do so. Safe Havens 4.35(A). For example, immigration law expressly provides that a noncitizen convicted of or who admits committing a violation of state law, federal law, or any law or regulation of "a foreign country relating to a controlled substance . . . is inadmissible." INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II) ("[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of -- (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), . . . is inadmissible.").      Moreover, the U.S. Sentencing Guidelines define "felony" to include "any federal, state or local offense punishable by imprisonment for a term exceeding one year." U.S.S.G. 2L1.2, Application Note 1. As the Supreme Court pointed out, this does not include foreign convictions.      Additionally, the Controlled Substances Act defines a "felony drug offense" as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country." 21 U.S.C. 802(44). See Safe Havens 7.22(E).      The domestic violence conviction ground of deportation covers a victim who "is protected from that individuals acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government." INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) (emphasis supplied). A conviction under foreign law is not listed here, and is therefore not included as a ground of deportation. Congress certainly knew how to include foreign convictions when it wished to do so. E.g., INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U) (sentence following subparagraph U) ("The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.") (emphasis supplied).      The unlawful voting deportation ground lists only voting in violation of federal, state, or local law, so Congress in effect excluded voting in violation of foreign law from this ground of deportation. See Safe Havens 7.16, 7.192.      Noncitizens are deportable who have, outside the United States, committed, ordered, incited, assisted, or otherwise participated in the commission of, under color of law of any foreign nation, any extrajudicial killing, as defined in Torture Victim Protection Act of 1991, 3(a), 28 U.S.C. 1350 note. INA 237(a)(4)(D), 8 U.S.C. 1237(a)(4)(D), referencing INA 212(a)(3)(E)(iii)(II).      With respect to any conviction-based ground of deportation that does not expressly include foreign convictions, there is an excellent argument that Congress did not include them within the ground of deportation. All grounds of deportation, that are based on convictions, provide that only convictions received "after admission" trigger deportation. See Safe Havens 4.34.      There is no express language including foreign convictions within those convictions that trigger deportation. This gives rise to an argument that foreign convictions cannot trigger deportation. This makes sense because when someone is seeking admission to the United States, any convictions are likely to have been suffered in foreign lands. Similarly, it would be unfair to allow any such convictions that did not trigger inadmissibility when the noncitizen was admitted to the United States to trigger deportation later. Therefore, it makes sense for Congress to have omitted a provision that foreign convictions trigger deportation.      In addition, in general, a conviction must have occurred "after the date of admission" in order to trigger deportation. The statute defining grounds of deportation, INA 237(a), provides that noncitizens "admitted to the United States" shall be deportable if they fall within one or more specified classes of deportable noncitizens. INA 237(a)(2)(A)(i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude "at any time after admission"); INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii) (aggravated felony "at any time after admission"); INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (controlled substances conviction "at any time after admission"); INA 237(a)(2)(B)(ii), 8 U.S.C. 1227(a)(2)(B)(ii) (drug abuser or addict who is or "at any time after admission has been" convicted); INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C) (firearms conviction). Many specific statutory grounds of deportation also expressly require a conviction after admission to the United States. E.g., INA 237(a)(2)(A)(i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude "at any time after admission"); INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)(aggravated felony "at any time after admission"); INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i)(controlled substances conviction "at any time after admission"); INA 237(a)(2)(B)(ii), 8 U.S.C. 1227(a)(2)(B)(ii) (drug abuser or addict who is or "at any time after admission has been" convicted); INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C)(firearms conviction "at any time after admission"); INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i)(domestic violence conviction "at any time after admission"). Because a deportable conviction must occur after admission to the United States, there is every reason to believe that Congress was considering convictions suffered within the United States when it defined the conviction-based grounds of deportation.      Because of the serious consequences of deportation, this ambiguous legislation must be construed in favor of the noncitizen. See Safe Havens 5.25.

BIA

DOMESTIC VIOLENCE " VIOLATION OF PROTECTIVE ORDER " SIMILAR TO CIRCUMSTANCE SPECIFIC ANALYSIS
Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017) (in considering whether a violation of a domestic violence protection order renders a noncitizen deportable, under INA 237(a)(2)(E)(ii), an IJ should consider the probative and reliable evidence regarding what a state court has determined about the violation), clarifying Matter of Strydom, 25 I&N Dec. 507 (BIA 2011). NOTE: While the court stated that neither the categorical, nor the circumstance-specific approaches were applicable to this ground, the board stated that any reliable evidence could be submitted. The Board clarified that when it previously applied the categorical approach to INA 237(a)(2)(E)(ii), it did not actually hold that the categorical approach should be applied to the TRO ground, it just did it. Thus, the BIA was completely free to change its prior rule, because it did not really mean to establish that as the rule.

STATUTORY INTERPRETATION - IIRAIRA CRIMINAL DEPORTATION GROUNDS - CONGRESSIONAL INTENT - BROAD INTERPRETATION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("In seeking to identify the "federal policies" underlying section 237(a)(2)(E)(i), we find it significant that the provision was enacted pursuant to the IIRIRA as part of an aggressive legislative movement to expand the criminal grounds of deportability in general and to create a "comprehensive statutory scheme to cover crimes against children" in particular. Matter of Rodriguez-Rodriguez, supra, at 994. In addition to the changes brought about through the enactment of section 237(a)(2)(E)(i), for example, Congress also expanded the aggravated felony definition to encompass offenses involving the "sexual abuse of a minor." See IIRIRA 321(a)(1), 110 Stat. at 3009-627 (amending section 101(a)(43)(A) of the Act); see also United States v. Corona-Sanchez, 234 F.3d 449, 454 (9th Cir. 2000) (referring to the IIRIRA as "expansive legislation" and recognizing, in the aggravated felony context, that the statute was "intended to sweep a broad range of offenses" into the grounds of deportability); H.R. Rep. No. 104-828, at 505-06 (1996) (Conf. Rep.) (Joint Explanatory Statement of the Committee of Conference). Prior to the enactment of the IIRIRA, the immigration laws did not subject aliens convicted of crimes against children to any particular disadvantage vis-a-vis other criminal aliens. By enacting section 237(a)(2)(E)(i) of the Act and other provisions augmenting the aggravated felony definition, however, Congress clearly intended to single out those who have been convicted of maltreating or preying upon children. In view of the fact that section 237(a)(2)(E)(i) of the Act is the product of a significant expansion of the grounds of deportability and was aimed at facilitating the removal of child abusers in particular, it is our view that the term "crime of child abuse" should be interpreted broadly in this context.").

STATUTORY INTERPRETATION - IIRAIRA CRIMINAL DEPORTATION GROUNDS - CONGRESSIONAL INTENT - BROAD INTERPRETATION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (broad statutory purposes cannot carry interpretation past the language of the statute: "Thus, while we agree with the DHS that Congress intended section 237(a)(2)(E)(i) to be construed broadly, the statute's general purpose cannot supersede its language, which plainly focuses on those crimes of which an alien has been "convicted." We note in this regard that Congress's broad, enforcement-oriented purposes have not prevented courts from determining that other criminal grounds of deportability are subject to the categorical approach. See, e.g., Gonzales v. Duenas-Alvarez, 127 S. Ct. at 818 (discussing the applicability of the categorical approach in the context of a "theft offense" aggravated felony); Medina v. Ashcroft, 393 F.3d 1063, 1065-66 (9th Cir. 2005) (applying the categorical approach in the context of a "controlled substance violation" under section 237(a)(2)(B)(i) of the Act); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (applying the categorical approach in the context of a "sexual abuse of a minor" aggravated felony).").

DOMESTIC VIOLENCE - DEPORTATION GROUND - CRIME OF CHILD ABUSE - CONGRESS DID NOT INVITE "EXTRA ELEMENT" EXCEPTION TO CATEGORICAL ANALYSIS LIMITATION TO ELEMENTS OF OFFENSE OR RECORD OF CONVICTION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("Yet there is nothing in the language of the "crime of child abuse" clause of section 237(a)(2)(E)(i) that invites inquiry into facts unrelated to an alien's "convicted conduct." Furthermore, there is no reason to believe that application of the categorical approach will render section 237(a)(2)(E)(i) so underinclusive as to defeat the purpose of the statute. Most States have criminal statutes that are designed to punish child abuse in its various forms, and many of these statutes protect children exclusively.").

Second Circuit

DOMESTIC VIOLENCE - STALKING - INA NOT UNCONSTITUTIONALLY VAGUE
Arriaga v. Mukasey, 521 F.3d 219 (2d Cir. Mar. 27, 2008) (stalking provision of the removal statute, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), is not unconstitutionally vague on its face or as applied).