Criminal Defense of Immigrants

In addition to crimes of “domestic violence,” this deportation ground also specifies four additional criminal offenses as triggering deportation: convictions of stalking, child abuse, child neglect, or child abandonment.  Aside from these labels, the statute offers no guidance concerning their definition.  As a result, it may be possible to mount a challenge to the constitutionality of this legislation under the “void for vagueness” doctrine, although such a challenge has not been successful concerning the term “moral turpitude.”[129]

                The BIA and Circuit Courts have held with respect to the definition of aggravated felony that they would define the reach of an aggravated felony ground not by the basic federal criminal statutes but according to the ordinary meaning of the words.[130]  The Seventh Circuit has found that if the state conviction falls within one of the listed federal statutes, it meets the common sense definition of sexual abuse of a minor. [131]

                As is the case in developing a federal definition of terms in this federal legislation, it is appropriate to examine definitions from the common law, other federal statutes, state statutes, the Model Penal Code, and the like, in order to create a clear federal definition with boundaries appropriate to the drastic consequences of deportation attached to a conviction of an offense meeting these definitions.[132]

[129] See Jordan v. DeGeorge, 341 U.S. 223 (1951) (due process requires applying void-for-vagueness notice doctrine to grounds of deportation, but term “moral turpitude” was not void for vagueness because fraud component was well-defined).

[130] See United States v. Baron-Medina, supra (sexual abuse of a minor); Castro-Baez v. Reno, supra (rape); Matter of Rodriguez-Rodriguez, supra, discussing 18 U.S.C. § 3509(a) (sexual abuse of a minor).

[131] Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001). 

[132] For a proposal for how to create a definition of a general legal term in the aggravated felony statute — in this case, arson as a crime of violence — see Board Member Rosenberg, dissenting opinion in Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998).