Criminal Defense of Immigrants

(B)  Use of Convictions Not Charged in Immigration Court.  At least one court has held that an immigration judge may deny relief based upon a criminal conviction that was not charged as a ground of removal in the Notice to Appear.[3]  This means that both immigration and criminal counsel need to be aware of the potential immigration effects of every conviction in a noncitizen client’s record, not just the convictions that have been charged by the DHS as grounds of removal. 

[3] Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. Jul. 31, 2006) (criminal conviction not charged in the NTA could be used to find that a noncitizen was ineligible for relief; in the context of cancellation of removal the IJ accepted proof of a criminal conviction not charged in the NTA to find noncitizen was ineligible for cancellation of removal as a noncitizen convicted of an aggravated felony), following Brown v. Ashcroft, 360 F.3d 346, 353 (2d Cir. 2004) and Aalund v. Marshall, 461 F.2d 710, 712-713 (5th Cir. 1972).