Previous volumes in this series have addressed single grounds of deportation, for example, the volume on Aggravated Felonies[1] and the volume on Crimes of Moral Turpitude.[2]  Other conviction-based grounds of deportation have been addressed as chapters in works covering larger topics, for example, the firearms conviction ground of deportation, the controlled substances ground of deportation, and the domestic violence ground of deportation.[3]  There are, in addition, a number of additional far less common conviction-based grounds of deportation which have so far been only listed, in a comprehensive Checklist of Grounds of Deportation,[4] but have not been analyzed in detail.  These writings can be said fairly to describe the “problem” posed for immigrants who have been admitted to the United States by these various conviction-based grounds of deportation.

 

            This volume seeks to rise above the “problem” of what dispositions in criminal cases trigger deportation, and attempts to describe “solutions,” those dispositions of criminal cases that do not trigger any conviction-based ground of deportation. 

 

            It is not possible completely to list or discuss all “safe havens” that will not trigger deportation, given that there are 50 states, plus several other U.S.-governed jurisdictions, such as Puerto Rico, and in addition the federal criminal courts, not to mention the 170 or more foreign nations in all of which criminal “convictions” may be rendered that might trigger deportation under United States immigration law.

 

            This book attempts to gather — in an organized way — all decisions of administrative and federal courts that hold that a given conviction does not trigger deportation under one ground or another, in order to provide counsel with a surprising wealth of safe havens to steer for when constructing a disposition in a criminal case so it will not in fact cause the defendant to become deportable.  The common mythology holds that “everything” triggers deportation.  Surprisingly, the opposite is more nearly the case.  This volume collects over 160 decisions of the Board of Immigration Appeals and various federal courts holding that a given conviction does not constitute a crime involving moral turpitude, and an equivalent number holding that a given conviction does not constitute an aggravated felony, that provide targets for counsel to aim for in order to avoid deportation for the client.

 

            In addition, we have attempted to gather together some favorite dispositions that do not fall into any of the conviction-based grounds of deportation, and to describe in more detail the reasoning that leads to a conclusion that they do not, for counsel to use as “safe havens” when confronting different types of criminal cases.

 

            This work depends on the kindness of friends and strangers, in the sense that knowledgeable counsel have contributed some of their favorite safe havens, which have been incorporated into this work.  Please view the results with a critical intelligence, since the task is complex and it is always possible that other eyes will see what we have not.  Let us know of any additions, and improvements, as you encounter them, so we may make the results available for the benefit of all.  This work, as is the case with all volumes in this series, will be updated monthly on our web site at http://www.CriminalAndImmigrationLaw.com.

 

[1] N. Tooby, Aggravated Felonies (2003).

[2] N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude (2005).

[3] N. Tooby, Criminal Defense of Immigrants (2003), Chapters 4, 5, and 8, respectively.

[4] Appendix A, Checklist of Grounds of Deportation.

DUE PROCESS - NONCITIZENS ARE PERSONS ENTITLED TO DUE PROCESS PROTECTION
Zadvydas v. Davis, 533 U.S. 678, 693-694, 121 S.Ct. 2491 (June 28, 2001) ("[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598, and n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); cf. Mezei, supra, at 212, 73 S.Ct. 625 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law"). Indeed, this Court has held that the Due Process *694 Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U.S. 21, 32-34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); Johnson, supra, at 770, 70 S.Ct. 936.").

DUE PROCESS - NONCITIZENS ARE PERSONS ENTITLED TO DUE PROCESS PROTECTION
Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ("Whatever his status under the immigration laws, an alien is surely a person .... Aliens, even aliens whose presence in this country is unlawful, have long been recognized as persons guaranteed due process of law by the Fifth and Fourteenth Amendments.").

BIA

STATISTICS - IMMIGRATION REDUCES CRIME
Immigration Reduces Crime Rates LiveScience.com Tue Mar 18, 4:11 PM ET Contrary to popular stereotypes, areas undergoing immigration are associated with lower violence, not spiraling crime, according to a new study by Harvard University sociologist Robert Sampson, published in the American Sociological Association's Contexts magazine. He examined crime and immigration in Chicago and around the United States to find the truth behind the popular perception that increasing immigration leads to crime. His study summarizes patterns from seven years' worth of violent acts in Chicago committed by whites, blacks and Hispanics from 180 neighborhoods of varying levels of integration. He also analyzed recent data from police records and the U.S. Census for all communities in Chicago. Sampson found concentrated immigration predicts lower, not higher, rates of violence across communities in Chicago, with the relationship strongest in poor neighborhoods. Violence was also significantly lower among Mexican-Americans than among blacks and whites. Sampson refers to this as the "Latino Paradox," whereby Hispanic Americans do better on a range of social indicators, including propensity to violence, than one would expect, given their socioeconomic disadvantages. His analysis also revealed that first-generation immigrants were 45 percent less likely to commit violence than third-generation Americans. "The pattern of immigrant generational status and lower crime rates is not restricted to Latinos; it extends to help explain white-black differences as well," Sampson said. "We're so used to thinking about immigrant assimilation that we've failed to fully appreciate how immigrants themselves shape their host society." Sampson's arguments are supported at the national level as well. Significant immigration growth - including by illegal aliens - occurred in the mid-1990s, peaking at the end of the decade. During this time, the national homicide rate plunged. Crime dropped even in immigration hot spots, such as Los Angeles (where it dropped 45 percent overall).

Ninth Circuit

IMMIGRATION LAW " COMPLEXITY
Castro-ORyan v. U.S. Dept of Immigr. & Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1988) (With only a small degree of hyperbole, the immigration laws have been termed second only to the Internal Revenue Code in complexity. (quoting Elizabeth Hull, Without Justice for All 107 (1985))).

Other

STATISTICS " IMMIGRATION OFFENSES CONSTITUTE THE LARGEST CATEGORY OF U.S. MARSHAL ARRESTS
Immigration crime was the most common category of federal crime for which suspects were arrested and booked by the U.S. Marshals Service (USMS), the federal agency responsible for taking a criminal suspect into custody. Mark Motivans, Department of Justice, Bureau of Justice Statistics, Federal Justice Statistics, 2010 (Dec. 2013). Thanks to crimmigration.com.

REMOVALS BY COUNTRY
A DHS website lists the number of noncitizens that were removed to 224 different countries from the beginning of 2008 through February 22, 2010. http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-81_May11.pdf

STATISTICS
Solomon Moore, Study Shows Sharp Rise in Latino Federal Convicts, N.Y. Times (Feb. 19, 2009) http://www.nytimes. com/2009/ 02/19/us/ 19immig.html

STATISTICS - IMMIGRATION PROSECUTIONS
Federal immigration prosecutions continued their recent and highly unusual surge in March 2008, apparently reaching an all-time high, according to timely data obtained from the Justice Department by TRAC. The total of 9,350 such prosecutions was up by almost 50% from the previous month and 73% from the previous year. http://trac.syr.edu/tracdhs/

STATISTICS - IMMIGRANTS COMMIT FEWER CRIMES
Immigrants are far less likely than the average U.S.-born citizen to commit crime in California, the most populous state in the United States, according to a report issued late on Monday. People born outside the United States make up about 35 percent of California's adult population but account for about 17 percent of the adult prison population, the report by the Public Policy Institute of California showed. According to the report's authors the findings suggest that long-standing fears of immigration as a threat to public safety are unjustified. The report also noted that U.S.-born adult men are incarcerated at a rate more than 2 1/2 times greater than that of foreign-born men. Kristin Butcher and Anne Piehl, Crime, Corrections, and California: What Does Immigration Have to Do with It?, 9 CALIFORNIA COUNTS: POPULATION TRENDS AND PROFILES, No. 3 (Feb. 2008).

IMMIGRATION STATISTICS
In January 2008, there were 4,739 federal prosecutions classified as immigration matters, according to timely enforcement data from the Justice Department. This is up over 20% from the previous month, and represents the largest monthly number of such prosecutions in the past seven years. There has been substantial growth in the number of cases handled by U.S. Magistrate Courts, and some portion of this increase may reflect improvements in the recording of these magistrate cases by the Justice Department. For reports on the latest enforcement trends, see http://trac.syr.edu/tracreports/bulletins/

INTRODUCTION - CRIMINALITY OF NONCITIZENS
"Myth of Immigrant Criminality and the Paradox of Assimilation, Incarceration Rate of Native Born and Foreign Born Men" http://www.ailf.org/ipc/special_report/sr_022107.pdf

IMMIGRATION CONSEQUENCES
T. Indritz & J. Baron, Immigration Consequences of Criminal Convictions, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 141 (2d ed. 2007).

REMOVAL STATISTICS
Detention and Removal of Illegal Aliens U.S. Immigration and Customs Enforcement (ICE) (PDF 52 pages - 2.74 MB)  - New 05/18/2006 http://www.dhs.gov/dhspublic/interweb/assetlibrary/OIG_06-33_Apr06.pdf

IMMIGRANT POPULATION OF US
About 35.2 million foreign-born people live in the United States, about 12.1 per cent of the national population. Steven Camarota, Report (Center for Immigration Studies October 12, 2005), which is based on the Census Bureaus Current Population Survey (March 2005). The report estimates that there are about 9.7 million undocumented immigrants residing in the United States.

STATISTICS - NUMBER OF DEPORTED
Nearly 90,000 immigrants a year are deported for criminal convictions. See DHS, Immigration Enforcement Actions: 2005, at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/Enforcement_AR_05.pdf.

STATE LAWS RELATED TO IMMIGRATION
"In 2006, over 500 pieces of legislation concerning immigrants have been introduced in state legislatures around the country. While legislation covered a wide variety of topics, many states focused on employment, trafficking, public benefits, education, identification, voting rights and procedures, trafficking, law enforcement, and legal services. Thus far, at least 57 bills have been enacted in 2006, a pace that exceeds that of 2005. A handful of bills have been vetoed, and several more are awaiting gubernatorial action." NCSL, July 3, 2006. http://www.ncsl.org/programs/immig/06ImmigEnactedLegis2.htm

STATISTICS - ILLEGAL DEPORTATION OF US CITIZENS AND LEGAL RESIDENTS
Millions of people have been illegally deported from the U.S. by using local law enforcement as immigration officers. F. Balderama & R. Rodriguez, DECADE OF BETRAYAL. See also California Government Code Chapter 8.5 (commencing with 8720) to Division 1 of Title 2. In this statute, based on the book, it says: "In California alone, approximately 400,000 American citizens and legal residents of Mexican ancestry were forced to go to Mexico beginning in 1929. In total it is estimated that two million people of Mexican ancestry were forcibly relocated to Mexico, approximately 1.2 million of whom had been born in the United States, including the State of California."

IMMIGRANTS ARE LESS LIKELY TO COMMIT PREDATORY CRIMES THAN NATIVE-BORN UNITED STATES CITIZENS
Immigrants are less likely to commit predatory crimes than are native-born American citizens. Numerous studies have consistently found that immigrants are, in fact, less likely to commit crimes than the native-born. Despite this fact, restrictionist groups and sensationalizing media continue to propagate false images of immigrant communities plagued by crime and violence. The nation's leading experts on immigration and crime are setting the record straight. More than 130 sociologists, criminologists, and legal scholars have signed an open letter to President Bush, members of Congress, and state governors testifying that the problem of violent crime in the United States is not caused by immigrants, regardless of their legal status. In fact, they write, immigrants in every ethnic group in the United States have lower rates of crime and imprisonment than do the native-born. And over the past decade, as immigration rates have soared to historic highs, rates of violent crime and property crime have declined sharply. They urge lawmakers not to be swayed by unfounded myths and to base immigration policy on demonstrated facts, rather than false assumptions. The full Open Letter on Immigrants and Crime is available on the Immigration Policy Center (IPC) website. [http://www.ailf.org/ipc/ipc_openletter0507.shtml] Additional information on immigrants and crime can be found in the IPC's Special Report on the Myth of Immigrant Criminality and the Paradox of Assimilation.

RESOURCES - IMMIGRATION ADVOCATES NETWORK - LEGAL INFORMATION
http://www.immigrationadvocates.org/