Criminal Defense of Immigrants

The majority of removal grounds are based on status or “conduct,” rather than upon a criminal conviction.[12]  These grounds of removal are somewhat more difficult for the immigration authorities to establish, since they may be contested factually during a removal hearing by the calling of witnesses.  Noncitizens have a due process right to defend themselves against removal, and may introduce (a) testimony of 15 character witnesses that they have a character trait of truthfulness, (b) the noncitizens’ own testimony that they did not engage in the conduct alleged to constitute a ground of removal, and (c) testimony of 15 eyewitnesses to the effect that they did not in fact engage in that conduct.  This ability to contest the facts in immigration court can make a removal hearing concerning a conduct-based deportation ground much more time-consuming and expensive than a removal hearing in which a certified record of conviction conclusively establishes a conviction-based ground of deportation.  When a vigorous defense blossoms into a contested hearing during which the testimony of a number of witnesses will be offered, it is not uncommon for the immigration authorities to abandon a conduct-based ground of removal. 

                Because these consequences depend on conduct, rather than upon whether a certain type of conviction exists, counsel cannot necessarily avoid them merely by avoiding a conviction.  For example, non-conviction dispositions may be considered by immigration authorities and courts in deciding whether to exercise discretion.[13]  Similarly, admissions of a noncitizen may be considered in determining whether “reason to believe” illicit trafficking ground of inadmissibility exists, even if the criminal case did not result in a conviction.[14]  See § 21.6, infra.

                For more on conduct-based criminal grounds of removal, see § § 17.23-17.29, 18.16-18.27, infra. 

[12] For a checklist of these grounds, see Appendices D, E, infra.

[13] Wallace v. Gonzales, 463 F.3d 135 (2d Cir. Sept. 1, 2006) (New York adjudication as a “Youthful Offender” under New York State criminal law, N.Y.Crim. Proc. Law § § 720.10-720.35, may be used in determining whether noncitizen should be granted adjustment of status as a matter of discretion, even if the adjudication is not a “conviction” for removability purposes).

[14] Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (factual admissions could properly be considered by immigration courts in establishing the “reason to believe” ground of inadmissibility where a noncitizen’s plea did not result in a conviction under the former Federal Youth Corrections Act: “We conclude that conviction and sentencing under the FYCA ought not actually improve petitioner’s immigration status by disallowing the admission of the factual basis merely because of the invocation of the FYCA. (emphasis in original)”); contra, Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (guilty plea cannot have greater consequences than the ultimate disposition of a case), modified on other grounds Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).