Safe Havens

Counsel should not automatically assume that because a decision has been found holding that a person convicted of an offense closely related to the offense of which the client has been convicted is not deportable under a given ground of deportation, therefore the offense under consideration is safe.  It is absolutely necessary for counsel to research the individual situation of the client, using the suggestions here as starting points.

            We have followed the lead of Dan Kesselbrenner and Lory Rosenberg, in Immigration Law and Crimes, by including in each case summary wherever possible the specific statute under which the conviction occurred wherever that information was given in the text of the decision.[6]  It is important to realize that each decision stating that a given crime falls or does not fall within a given ground of deportation is specific to the statute defining the offense of conviction under consideration, as well as the record of conviction in the individual case.

            Counsel should resist the urge to generalize from one decision regarding a conviction under one statute to form a conclusion about a conviction rendered under a different statute, or even the same statute at a different time.  If the specific statute has been amended, or if a sister state’s statute is different from the statute defining the crime under consideration, or if a judicial decision has come down since the immigration decision determining whether the conviction falls within the immigration category of offense, the conclusion concerning the instant case may be altered.  Moreover, in many cases, the record of conviction in the specific case under consideration will determine whether a conviction is or is not held to be a deportable offense.  It will thus be necessary to compare the record of conviction in the case under consideration with the record of conviction in the reported decision in order to determine the outcome of the analysis.

Counsel must compare the elements of the statute in the client’s case to the elements of the statute in a case holding a certain offense not to fall within a ground of deportation to verify that the client’s conduct also does not fall within that ground.

            Before concluding a safe haven judicial decision applies to the client’s case, counsel should therefore compare:

            (1) the statutes of conviction in both cases;

            (2) the records of conviction in both cases;

            (3) the federal law governing the ground of deportation in both cases; and

            (4) the judicial decisions governing the elements of the offense of conviction in both cases.

[6] Sample Determinations on the Issue of Moral Turpitude, Appendix E, in D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (2005).