Criminal Defense of Immigrants

(B)  Warning.  The Supreme Court has stated, possibly in dictum, that merely imagining a non-deportable hypothetical that falls within the statute of conviction does not require a conclusion that the person is not deportable, or subject to other adverse immigration consequences in which the government bears the burden of proof, unless s/he shows the individual case falls in the safe area of the statute of conviction, or that others have been prosecuted for conduct that falls within the safe area.[45]  This can be done through citation to cases in the convicting jurisdiction or another jurisdiction that show conduct in the safe area has in fact been prosecuted, or perhaps through jury instructions clearly stating that the jury should convict a defendant for conduct in the safe area.  Other types of proof may also be used, although the law is still developing in this area.  Therefore, before regarding a disposition as a safe haven in which the statute of conviction is overbroad with respect to the ground of removal, it is wiser to make sure the defendant can meet the additional requirement described here.  See § 16.7(G), infra.

[45] Gonzales v. Duenas-Alvarez, ___ U.S. ___, 127 S.Ct. 815, 817 (Jan. 17, 2007) (“[T]o find that state law creates a crime outside the generic definition of a listed crime in a federal statute requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct falling outside the generic definition. To make that showing, an offender must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues. Respondent makes no such showing.”).