Post-Conviction Relief for Immigrants

(E)  Conduct-Based Grounds of Deportation and Inadmissibility.  In addition, a number of crime-related grounds of inadmissibility are based not on the existence of a conviction, but rather on certain conduct committed by the noncitizen.  Some common offenses — in particular, prostitution and drug trafficking, addiction and abuse — can form the basis for inadmissibility or removal even if there never was or no longer is an actual criminal conviction.  In these cases, eliminating the conviction or sentence will not by itself prevent adverse immigration consequences from the underlying conduct.  Careful analysis is required in these cases.[27]  Counsel cannot change the client’s behavior in the streets on the prior occasion, and thus it may be quite difficult to defend against these conduct-based grounds of inadmissibility and deportability.  Dealing with conduct-based grounds is beyond the scope of this book, since post-conviction relief in criminal court is ineffective to erase the conduct committed by the noncitizen in the community that triggers this particular type of adverse immigration consequence.

[27] See N. Tooby, Criminal Defense of Immigrants, Chapter 2, Section IV (2003).  See also California Criminal Law and Immigration, Chapter 3 and § 6.2.