Criminal Defense of Immigrants


§ 7.36 3. Other Defects

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While in general, a noncitizen may not attack the validity of a conviction in immigration court, see § 7.33(B), supra, it may be possible to raise certain other jurisdictional objections to convictions in that forum.  Certainly, if a conviction has been rendered in a manner that plainly violates the Constitution, an immigration court may consider that it is void and therefore unable to trigger adverse immigration consequences.  On the other hand, it is well established that the immigration courts will not relitigate the facts underlying a criminal conviction. While the record of conviction can be considered to determine the set of elements of which the noncitizen was found guilty, the courts generally should not consider any facts contained in those documents that do not speak to that question.[172]

[172] See United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (“Even accepting the government’s proposition that the court may look at the indictment pursuant to the exception, we cannot use the fact that the offense involved the use of force to conclude that force is an element of the statute. Thus, given the plain meaning of the statute and the purported disjunctive elements, the use, attempted use, or threatened use of physical force is simply not an element of the Texas retaliation statute.”), following United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc); Manzella v. Zimmerman, 71 F.Supp. 534 (E.D. Pa. 1947) (the common-law crime of escape did not constitute a crime involving moral turpitude, since it was committed by a prisoner when he voluntarily departed from lawful custody without breach of prison, since the offense involved no element of force or fraud, even though the indictment alleged that the offender did break prison and escape “with force and arms.”).  Cf. Rusz v. Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004) (“In Corona-Sanchez, the defendant ‘actually received a two-year sentence for [recidivist shoplifting] due to the application of California Penal Code § 666.’  Because the categorical approach required us to separate the recidivist enhancement, the Corona-Sanchez defendant’s actual two-year sentence was of no moment.  Thus, we concluded that ‘even under the § § 484/488/666 scheme ... the maximum possible sentence for [petty theft with a prior qualifying offense] ... is six months.’”) (internal citations omitted).