Many criminal convictions do not fall into any of the categories that trigger inadmissibility or deportability.[1]  In addition, a considerable number of dispositions that do fall within one or another category triggering immigration problems still do not trigger mandatory detention:

 

(1) Domestic Violence convictions or court findings that a protective order has been violated do not trigger mandatory detention (unless they constitute CMTs, in which case they must be analyzed as such).

 

(2) High Speed Border Chase convictions, under 18 U.S.C. § 758, do not trigger mandatory detention.

 

(3) A single Crime Involving Moral Turpitude conviction or admission does not trigger mandatory detention for deportable or inadmissible noncitizens if it falls within the Petty Offense, Youthful Offender or Political Offense Exceptions to inadmissibility.

 

(4) Conviction of a single Crime of Moral Turpitude does not trigger mandatory detention for noncitizens subject to deportation where (a) the crime was not committed within five years of admission, or (b) a sentence of less than one year was imposed.[2]

 

(5) Controlled Substance convictions or admissions do not trigger mandatory detention if one of the following conditions applies:

 

(a) The drug is not listed on the federal schedules.[3]

 

(b) The record of conviction does not identify the particular drug.[4]

 

(c) In the Ninth Circuit, at least, a first-offense conviction of simple possession, possession of paraphernalia, and perhaps other offenses that are (i) more minor than simple possession, and (ii) not forbidden under federal law, such as being under the influence, visiting a place where drugs are used, and driving under the influence, where state or foreign rehabilitative relief has been granted under circumstances in which the defendant would have been eligible for relief under the Federal First Offender Act, 18 U.S.C. § 3607, if the charges had been brought in federal court.  See § 11.20, infra.

 

(6)  An Aggravated Felony conviction does not trigger mandatory detention if the conviction is a foreign conviction, and the term of imprisonment was completed more than 15 years ago.[5]

 

(7)   If the conviction is for the offenses of accessory after the fact, solicitation, misprision of a felony, and possibly facilitation of the commission of a CMT, aggravated felony, or controlled substance offense, there is an argument against mandatory detention since the pertinent grounds of inadmissibility and deportability list substantive offenses, and attempt and conspiracy to commit them, but no other classes of inchoate offenses.[6]

(8)  A federal conviction of failing to register as a sex offender, under 18 U.S.C. § 2250, constitutes a new ground of deportation,[7] but does not trigger mandatory detention, assuming it is not considered to be a CMT.  (If it is, it must be analyzed as such.)[8]

 

(9)  A conviction does not trigger mandatory detention if the defendant was released from criminal custody prior to October 9, 1998. [9]  The government, however, detains many individuals released before October 9, 1998, but who returned to the United States from a trip abroad.  Such detentions may be challenged on constitutional Equal Protection grounds.

 

(10)  Under a retroactivity analysis, individuals may argue that INA § 236(c) does not apply to those who were released from criminal custody after October 8, 1998, but who pleaded guilty to a crime prior to IIRAIRA’s general effective date of April 1, 1997.[10] 

 

(11)  To trigger mandatory detention, the release from custody must stem from a criminal matter that triggers mandatory detention.[11]

 

(12)  Despite a BIA ruling to the contrary, the correct rule is that mandatory detention for noncitizens only ought to apply if the person is taken into DHS custody immediately upon release from criminal incarceration (on or after October 9, 1998), and not at any time after the release.  A federal district court in Washington state recently upheld this interpretation.[12]

(13)  If the conviction is for the offenses of accessory after the fact, solicitation, misprision of a felony, and possibly facilitation or aiding and abetting the commission of a CMT, aggravated felony, or controlled substance offense, there is an argument against mandatory detention since the pertinent grounds of inadmissibility and deportability list substantive offenses, and attempt and conspiracy to commit them, but no other classes of inchoate offenses.[13]  (Note that pending immigration legislation may repeal some or all of these arguments.)

 

(14)  Additionally, post-conviction relief, such as executive pardons, and vacating the conviction on a basis of legal validity, will work to avoid mandatory detention for most, if not all, types of criminal misconduct.  See Chapter 11, supra.[14]  Judicial Recommendations Against Deportation, granted by the sentencing judge prior to November 29, 1990, also avoid mandatory detention on the basis of CMT and aggravated felony convictions.  See § 11.21, infra.

[175] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005).

[176] Note that the CMT ground of deportability, INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), now only requires that the maximum possible sentence be one year or more.

[177] INA § § 212(a)(2)(A)(i)(II), 237(a)(2)(B)(i), 8 U.S.C. § § 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i).

[178] Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965).

[179] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (first sentence following subparagraph [U]).

[180] See INA § § 101(a)(43)(U), 212(a)(2)(A)(i), 212(a)(2)(A)(ii), 237(a)(2)(B).  See also United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001); Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).  Aiding and abetting is probably considered to be included within the substantive offense.  See § 19.16, infra.

[181] INA § 237(a)(2)(A)(v), added by Adam Walsh Child Protection and Safety Act of 2006, HR 4472, PL 109-248, § 401 (July 27, 2006).

[182] INA § 236(c)(1), 8 U.S.C. § 1226(c)(1).

[183] Matter of West, 22 I. & N. Dec. 1405 (BIA 2000).

[184] For further discussion of these two arguments, see the NYSDA “Removal Defense Checklist,” available on its website at http://www.nysda.org/ under Defense Resources, and the Immigrant Defense Project.

[185] This is in accord with the language in INA § 236(c) and was the situation in the published INS cases interpreting INA § 236(c). See Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001); Matter of West, supra; Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999).

[186] In Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), a divided BIA concluded that INA § 236(c) applied to individuals who were not immediately taken into INS custody upon their release from criminal incarceration. The plain language of the statute indicates that only individuals who are taken into custody immediately upon their release from criminal incarceration fall within INA § 236(c). Thus, individuals who were not taken into custody immediately upon release should consider challenging the BIA’s interpretation of INA § 236(c) in a habeas corpus action. A federal district court in Washington followed this reasoning to order a bond hearing, on petition for habeas corpus.  See Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221 (D. Wash. 2004).  See also the dissent in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001).

[187] See INA § § 101(a)(43)(U), 212(a)(2)(A)(i), 212(a)(2)(A)(ii), 237(a)(2)(B); 8 U.S.C. § § 1101(a)(43)(U), 1182(a)(2)(A)(i), 1182(a)(2)(A)(ii), 1227(a)(2)(B).  See also United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001); Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[188] Including drug and firearms convictions, aggravated felony convictions, and other convictions, such as espionage, sabotage, treason, sedition, threats against the president or successors, selective service violations, trading with the enemy violations, violations of travel restrictions, or importing a noncitizen for immoral purposes.

BIA

DETENTION " MANDATORY DETENTION " JOSEPH HEARING " BURDEN OF PROOF ON GOVERNMENT
Matter of Davey, 26 I&N Dec. 37 (BIA Oct. 23, 2012) (The relevant question in a Joseph hearing is whether the DHS is substantially unlikely to prove a charge that would justify mandatory detention. Matter of Joseph, 22 I&N Dec. at 800. To prove a charge under section 237(a)(2)(B)(i), the DHS bears the burden of proving that the respondents conviction does not fall within the possession for personal use exception. See Matter of Moncada, 24 I&N Dec. 62, 67 n.5 (BIA 2007). It cannot meet that burden unless the record establishes that the respondent possessed marijuana for some reason other than personal use; an inconclusive record is not sufficient.).