Safe Havens
§ 6.33 (B)
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(B) Admissions of Facts that Trigger Adverse Immigration Consequences Even Without a Conviction. The client can suffer immigration penalties for some acts even if there is no criminal conviction. Some grounds of deportation, [131] and some grounds of inadmissibility,[132] do not depend upon the existence of a conviction, but are triggered instead by certain conduct or other factors. For example, a person may be excluded (but not deported) if the government has “reason to believe” the person has been a drug trafficker, [133] or if he or she “has engaged in” prostitution.[134] Drug addiction and drug abuse are grounds for deportation and exclusion.[135] For more in depth discussions of these various grounds of inadmissibility, see N. Tooby, Criminal Defense of Immigrants, Chapter 3 (2003).
Even successful avoidance (in the first place) or elimination (by means of post-conviction relief) of the conviction will not necessarily resolve these problems, if the government has independent evidence of these “facts,” since these conduct-based grounds of deportation and inadmissibility do not depend upon the existence of a formal conviction.
Example: Bertram was convicted of possession of heroin for sale. The conviction is vacated as legally invalid by writ of habeas corpus, and the original charges are dismissed for lack of evidence. Bertram no longer has a drug conviction and is thus not deportable or excludable for having been convicted. The government might nonetheless charge, however, that the police reports constitute “reason to believe” that he was a drug trafficker and that he is therefore excludable.
[131] See Appendix A, sections [4], [7], [8], [11-14], [18], [19], [21-30], [32], [35-38], [40-43], [46], [47], [49]. infra.
[132] See Appendix G, § § 5-44 infra.
[133] See Appendix G, § 15, infra.
[134] See Appendix G § 29, infra.
[135] See Appendix A, section [4], infra (deportation); Appendix G, § 17, infra (inadmissibility); K. Brady, et al., California Criminal Law and Immigration, Chapter 3 (2004) and § 6.2; D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 3.2 (2004).
