More than half of the various grounds of deportation, listed in Appendix D, are based on status or “conduct,” rather than upon a criminal conviction or other finding of a court or administrative tribunal.

 

                These grounds of deportation are somewhat more difficult for the immigration authorities to establish in deportation proceedings, since they may be contested factually during a removal hearing by the calling of witnesses.  For example, the government may introduce evidence that a noncitizen engaged in certain conduct that falls within a conduct-based ground of deportation and contend the noncitizen is therefore deportable and must be removed from the United States.  The noncitizen has a due process right to defend him- or herself against this charge, and may introduce (a) testimony of character witnesses that s/he has a character trait of truthfulness, (b) the noncitizen’s own testimony that s/he did not engage in the conduct alleged to constitute a ground of deportation, and (c) testimony of eyewitnesses to the effect that s/he 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 deportation.

 

Ninth Circuit

REMOVAL " CONDUCT-BASED GROUNDS " STATE ALFORD PLEA DOES NOT PROVE COMMISSION OF A STATE CRIME SUFFICIENTLY TO SUPPORT AN ORDER REVOKING FEDERAL SUPERVISED RELEASE
United States v. Williams, 741 F.3d 1057 (9th Cir. Feb. 3, 2014) (reversing district court's order revoking defendant's supervised release, where a defendant's Alford plea to a state charge is insufficient to prove commission of a state crime for purposes of a federal supervised release violation when the state itself does not treat it as sufficiently probative of the fact that the defendant actually committed the acts constituting the crime or crimes of conviction).