Criminal Defense of Immigrants


§ 7.26 (A)

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(A)  In General.  Congress frequently specified convictions from listed jurisdictions as triggering certain grounds of removal.  For example, the aggravated felony ground of deportation and the controlled substances ground of inadmissibility specifically list foreign convictions, but the domestic violence ground of deportation does not.  See § 7.25(C), supra.  Similarly, some grounds specifically list the following types of jurisdiction whose convictions trigger removal: 


                (a) local court systems, see § 7.26(C), infra;


                (b) military courts, see § 7.26(D), infra; and


                (c) tribal courts.  See § 7.26(E), infra.

This gives rise to the argument that since Congress did not list certain types of conviction in a given ground of removal, convictions from that jurisdiction do not trigger removal under that ground.  See Appendix G, infra, for an analogous argument concerning unlisted nonsubstantive offenses.


The maxim of statutory interpretation, “expressio unius est exclusio alterius,” means that where a statute lists the items to which it applies, “all omissions should be understood as exclusions.”[126]  Therefore, a statutory ground of removal which lists convictions from certain jurisdictions as triggering the ground of removal will be interpreted as excluding other jurisdictions which are not listed.

[126] N. Singer, Statutes and Statutory Construction § 47:23, p. 307 (6th ed. 2002); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (statutory construction maxim expressio unius est exclusio alterius means when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in some instances but not others).




Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 858-859 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for a violation of a law or regulation of a State as required to trigger the controlled substances conviction ground of deportation, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i); Congress meant to include them within the meaning of laws or regulation of a State because all municipalities derive their legal authority from the state in which they are located so it meant to encompass the laws of any political subdivision of a State, despite Congress failure explicitly to include municipal or local in this definition as it did in other parts of the statute).

Ninth Circuit

United States v. Reveles, 660 F.3d 1138, No. 10-30313 (9th Cir. Oct. 24, 2011) (the non-judicial punishment (NJP) administered by the Navy for drunk driving was not criminal in nature and therefore the Government did not violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution by prosecuting and convicting the defendant for the crime a second time"this time in the U.S. district court"after he had received NJP for the same offense.) NOTE: Applying this to the immigration context, the argument would be that, if even an offense that carries 30 days in custody is not considered to be criminal, offenses that may not meet each of the Matter of Eslamizar requirements might nevertheless fail to constitute a conviction of a crime for immigration purposes as well, as long as it appears they also do not follow a criminal procedure. See Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA 2004) (finding that an Oregon violation was not a conviction, because it carried: (1) no possible jail sentence; (2) no right to appointed counsel; (3) no right to jury trial; and (4) and no right to proof beyond a reasonable doubt).


There is a decent argument that because some deportability and inadmissibility grounds specify jurisdictions, e.g., "state and federal and foreign" (controlled substance and aggravated felony grounds) or "state, federal, local and Indian" (domestic violence ground), that since "local" is included in at least one ground and not included in others, local ordinances would only give rise to deportability if the ground specifically says "local." See N. Tooby & J. Rollin, Criminal Defense of Immigrants 7.26 (2012). There is a good Ninth Circuit case (involving environmental rules, not immigration (Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 (9th Cir. 1992)) that states that by listing things that are within the purview of the statute in one place, and other things within a separate statute, but not the first, Congress meant to exclude them in the former and include them in the latter. That Congress included state, federal, foreign, local and Indian convictions in the domestic violence ground, but only state, federal and foreign convictions in the controlled substance and aggravated felony grounds, means that Congress intended to exclude laws of local and Indian jurisdictions from the controlled substances and aggravated felony grounds of deportability. The BIA has rejected this argument in the controlled substances and aggravated felony contexts. See Matter of Cuellar, 25 I. & N. Dec. 850 (BIA 2012). The Ninth Circuit, however, may disagree. Immigration counsel wishing to raise the issue in a petition for review should preserve it by raising it before the Immigration Judge. The respondent, however, would face mandatory detention until the Ninth Circuit agreed with this argument. Thanks to Dan Kesselbrenner