Criminal Defense of Immigrants

 

(A)  Conduct-Based Immigration Consequences.  Certain criminal conduct on the part of the defendant can trigger adverse immigration consequences.  For example, the conduct of being a drug addict can trigger both deportation and inadmissibility, the two chief types of immigration damage.  There are a limited number of other forms of immigration damage (other than deportation and inadmissibility) that can be triggered by criminal conduct.  For each criminal offense, it is necessary to analyze the immigration consequences that are triggered by the conduct even if no conviction results.  See § § 17.23-17.30, Appendix D, infra.

 

                (1)  Conduct-Based Grounds of Deportation.  Of the 52 different grounds of deportation listed in Appendix D, 26 of them are based on status or “conduct,” rather than upon a criminal conviction or other finding of a court or administrative tribunal.  (For simplicity, the grounds of deportation that are triggered by a change in a noncitizen’s immigration status are included as “conduct-based grounds of deportation,” to distinguish them from the grounds that are based on a criminal conviction or other finding of a court or administrative tribunal, since they are treated the same as other conduct-based grounds.) 

 

                The following grounds of deportation depend on the ability of the government to prove — as a factual matter — that the noncitizen engaged in certain specified conduct that falls within a conduct-based ground of deportation.  The chart that follows is organized into four categories: conduct-based criminal grounds of deportation, conduct-based immigration grounds of deportation, conduct-based immigration status violation grounds, and conduct-based security grounds of deportation.

 

Chart 1:

Conduct-Based Grounds of Deportation

by Nature of the Ground

 

                NOTE: The 32 conduct-based grounds of deportation are listed here organized into criminal, immigration, and security grounds and alphabetically within each category.  The balance of the total of 52 grounds of deportation are omitted from this list since they require a conviction or court or administrative finding to trigger them, but may be found in Appendix D, which contains the complete list of grounds of deportation, and in § 5.18(B)(1), infra.

 

Criminal Grounds

Controlled substances abuser or addict conduct. Appendix D, [4]

Domestic violence protection order violation court finding.  Appendix D, [7]

Export violation conduct. Appendix D, [8]

 

Immigration Grounds

Failure to file change of address conduct. Appendix D, [12]

False claim to U.S. citizenship conduct. Appendix D, [13]

Fraud – document fraud administrative finding.  Appendix D, [14]

Fraud – marriage fraud conduct. Appendix D, [15]

Public charge conduct. Appendix D, [19]

Smuggling – alien smuggling conduct. Appendix D, [20]

Unlawful voting conduct. Appendix D, [22]

 

Immigration Status Violation Grounds

Conditional permanent residence termination conduct. Appendix D, [23]

Health entry conditions violation conduct. Appendix D, [24]

Inadmissibility at adjustment of status conduct. Appendix D, [25]

Inadmissibility at entry conduct. Appendix D, [26]

Nonimmigrant status violation conduct. Appendix D, [27]

Present in the United States in violation of law conduct. Appendix D, [28]

Visa revocation conduct. Appendix D, [29]

 

Security Grounds

Enemy citizens during wartime conduct. Appendix D, [30]

Espionage conduct. Appendix D, [31]

Extrajudicial killing conduct. Appendix D, [32]

Foreign policy conduct. Appendix D, [36]

Genocide conduct Appendix D, [37]

National security violation conduct. Appendix D, [38]

Nazi persecutors conduct. Appendix D, [39]

Overthrow of the government conduct. Appendix D, [41]

Public safety conduct. Appendix D, [42]

Religious freedom violation conduct. Appendix D, [43]

Sabotage conduct. Appendix D, [44]

Terrorist conduct. Appendix D, [45]

Terrorist training recipient conduct. Appendix D, [48]

Torture conduct. Appendix D, [50]

 

                (2)  Conduct-Based Grounds of Inadmissibility.  Similarly, the great majority of the crime-related grounds of inadmissibility are triggered by conduct, rather than by a conviction.  See § § 18.16-18.27, Appendix E, infra.

 

                (3)  Good Moral Character.  A quality called “Good Moral Character” is a requirement to obtain naturalized United States citizenship, as well as a number of other immigration benefits, such as Cancellation of Removal, Battered Spouse Cancellation, NACARA Cancellation, Non-LPR Cancellation, certain regulations,[9] Registry (Creation of a Record of Admission), former Suspension of Deportation, VAWA Self-Petitions, both for Battered Spouse Self-Petitioners and Child Self-Petitioners, Voluntary Departure During Proceedings, and certain waivers, including VAWA waivers and INA § 212(h) Waivers.  There are a number of conduct-based statutory bars to showing Good Moral Character, including being a habitual drunkard, certain conduct-based grounds of inadmissibility and deportability, deriving income principally from illegal gambling activities, giving false testimony for the purpose of obtaining immigration benefits, and having been confined, in a penal institution, for a total of 180 actual days or more as a result of criminal conviction(s). [10]  See § 15.6, infra.

 

                (4)  Negative Discretionary Factors.  Criminal conduct can be considered in any discretionary decisionmaking process as a negative factor, even if no conviction results.  See § 15.28, infra.

 

                (5)  Petty Offense Exception to Inadmissibility.  One crime of moral turpitude can trigger inadmissibility.  There is an exception to this ground of inadmissibility, called the Petty Offense Exception, which has three requirements.[11]  One requirement of this exception is that the noncitizen must not have committed a second offense that qualifies as a crime of moral turpitude.  Since this requirement does not require a second conviction, but merely that the noncitizen have committed a second CMT offense, it constitutes a conduct-based immigration consquence.

 

                (6)  Commission of a Serious Nonpolitical Offense.  Two important immigration benefits, family unity benefits[12] and withholding of deportation, [13] may be denied if there is serious reason to believe a noncitizen has committed a serious nonpolitical offense. 

[9] See Cammarata v. Sahli, 125 F.Supp. 125 (E.D. Mich. 1958); Matter of S, 7 I. & N. Dec. 726 (Reg. Com’r, Ass’t Com’r 1958).

[10] INA § 101(f), 8 U.S.C. § 1101(f).

[11] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).  See § 20.29, infra.

[12] See § 24.8, infra. 

[13] See § 24.31, infra.