Criminal Defense of Immigrants

Appendix D contains a checklist, and a brief description, of all 52 deportation grounds, and indicates which of them are triggered by a criminal conviction and whether a waiver of or an exception to the ground of deportation may be available.  See also Chapter 17, infra.

                About half of the 52 different grounds of deportation are triggered by a specified criminal conviction.[6]  If there is no conviction, as defined under immigration law,[7] these deportation grounds cannot be established and a noncitizen cannot be removed under any of these conviction-based grounds of deportation.  For a checklist and discussion of the various dispositions in criminal cases that do not constitute convictions for purposes of deportation, see § 7.21, infra.

Conviction-based grounds of deportation are preferred by the immigration authorities because of ease of proof.  In general, a certified court document is sufficient to establish the existence of the conviction.[8] If the record of conviction, as shown by another list of official documents, see § § 16.15-16.33, infra, establishes the nature of the conviction, and the nature of the conviction falls within the boundaries of any of the conviction-based grounds of deportation, the noncitizen is deportable.

The documents that make up the record of conviction for determining the elements to which a noncitizen entered a plea of guilty are not the same as the documents that may be considered by the immigration authorities in establishing the mere existence of a conviction.[9]  While cases have determined which documents make up the “record of conviction,” the documents that may be presented to prove the fact of conviction are listed under the Act and regulations.[10]  See § 16.16, infra.

[6] These conviction-based grounds of deportation are also defined in Appendix D, [1], [3]-[6], [9], [11], [16]-[18], [21], [32], [34], [35], [40], [45], [46], [49], [51], [52], infra.

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

[8] The documents that may be presented to prove the fact of conviction are listed under the Act and regulations.  INA § 240(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.

[9] See Matter of Teixiera, 21 I. & N. Dec. 316, 319 (BIA) (holding that a police report does not belong on either list: “The only document introduced into evidence that we consider to be part of the respondent’s “record of conviction,” or that fits any of the regulatory descriptions found at 8 C.F.R. § 1003.41 for documents that are admissible as evidence in any proceeding before an Immigration Judge in proving a criminal conviction, is the record of plea, verdict, and sentence. See 8 C.F.R. § § 1003.41(a)(2), (5), (6). The police report is not part of a “record of conviction,” nor does it fit any of the regulatory descriptions. Cf. 8 C.F.R. § 1003.41.”).

[10] INA § 240A(c)(3)(B), 8 U.S.C. § 1129a(c)(3)(B); 8 C.F.R. § 1003.41.