Criminal Defense of Immigrants
§ 5.18 (C)
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(C) Analysis of the Problem Posed by Each Criminal Offense. For ease in analysis, the types of immigration damage are grouped as follows:
(1) Deportability.
(2) Inadmissibility.
(3) Eligibility for Relief in Immigration Court. (If relief is granted, the noncitizen is not deported or excluded from admission to the United States on account of the ground of deportation or inadmissibility.)
Bearing in mind the above-listed types of immigration damage a criminal offense can cause, counsel should go through the chronology from the first to last offense and identify the type of immigration damage (if any) caused by each. Start with the first offense. Examine the conduct-based types of immigration damage listed above to determine whether the offense triggers any damage, and, if so, what that damage is. Then, determine whether the criminal offense resulted in a disposition that would be considered a “conviction” under immigration law. See Chapter 7, infra. If so, examine the types of immigration damage that can be triggered by a conviction. See § 5.18(B), supra. List each type of immigration damage caused by the conviction.
For each criminal offense that triggers some form of immigration damage, examine the noncitizen’s eligibility for some form of immigration relief in immigration court from that type of damage. See Chapter 24, infra, listing the types of immigration relief from deportation and inadmissibility. For example, if a controlled substance conviction triggers deportation and inadmissibility, consider whether the immigrant is eligible to apply for cancellation of removal which, if granted, would waive the ground of removal.
After examining the first offense in this way, take the second offense and perform the same analysis: Does it trigger deportation? Does it trigger inadmissibility? If so, is the noncitizen eligible for any form of relief from deportation or inadmissibility in immigration court?
