Criminal Defense of Immigrants

(A)  Varieties of Safe Haven.  The core meaning of “safe haven” is as follows: A safe haven is a disposition in a criminal case that will not trigger deportation under any ground of deportation.  On closer analysis, however, the term has several meanings:

                (1) A safe haven includes a disposition in a criminal case that does not constitute a conviction under the statutory definition of “conviction” contained in the Immigration and Nationality Act.[41]  Since the disposition does not constitute a “conviction,” it cannot trigger deportation under any of the grounds of deportation that require a conviction.  Moreover, since it does not constitute a conviction, it should not be considered proof that any conduct occurred so as to establish the noncitizen is deportable under a conduct-based ground of deportation.[42]  (Counsel must ensure, however, that the noncitizen’s conduct does not trigger a conduct-based ground of deportation.)[43]  Finally, a criminal case disposition that is not a conviction will not trigger deportation under the two grounds of deportation that are triggered by a court or administrative finding unless it meets the specific requirements of those sections.[44]  See § 5.27, infra, for a checklist of non-conviction dispositions.  This type of “safe haven” does not trigger deportation at all.

                (2) A safe haven also includes a conviction in a criminal case that does not fall within the boundaries of any of the conviction-based or conduct-based grounds of deportation, and does not meet the requirements of either of the two grounds of deportation that are triggered by a court or administrative finding.  See § 5.28, infra.  This type of “safe haven” does not trigger deportation at all.

                (3) A safe haven also includes a disposition in a criminal case that allows immigration counsel to make a decent, non-frivolous argument that the disposition does not trigger deportation under any ground.  If the argument prevails, either before the agency, the immigration judge, the Board of Immigration Appeals, or in federal court, this safe haven becomes either a non-conviction safe haven, under (1) above, or a non-deportable conviction safe haven, under (2) above.  If the argument does not prevail, it may at least have afforded the noncitizen a number of additional months or years of lawful residence in the United States, during which s/he may apply for and perhaps obtain post-conviction relief from the conviction and a chance to obtain another, better safe haven in its place.  There are differing degrees of safety of this type of safe haven, depending on the strength of the argument that the particular disposition does not constitute a deportable conviction or fall within any other ground of deportation.

                (4)  A safe haven includes a disposition in a criminal case that may trigger deportability for the noncitizen, yet leave him or her eligible to apply for some type of relief in immigration court.  See Chapter 24, infra.

[41] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[42] While immigration authorities may make independent determinations of conduct-based grounds of deportation and inadmissibility without regard to judicial action in criminal proceedings because neither proceeding is res judicata of the other, there is a long-standing custom for the immigration courts to consider the criminal court’s adjudication as binding.  Matter of I, 4 I. & N. Dec. 159 (BIA 1950) explains that the immigration courts generally will not look beyond the criminal court’s disposition of a charge to hold the noncitizen inadmissible on the basis of an “admission” that may arise from the facts relating to the criminal case.  The same policy reasons suggest the same result should apply to conduct-based grounds of deportability.  See Matter of CYC, 3 I. & N. Dec. 623 (BIA 1950); Matter of Seda, 17 I. & N. Dec. 550 (BIA 1989), overruled on other grounds, Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  See § 18.8, infra.

[43] See § § 17.23-17.30, Appendix D, infra.

[44] See § § 17.25, 17.27, infra.