Criminal Defense of Immigrants


§ 24.1 (C)

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(C)  Use of Criminal Records in Making Discretionary Findings.  Most forms of relief from removal are discretionary.  In deciding whether to grant relief as a matter of discretion, certain information regarding a respondent’s criminal history can be examined by an Immigration Judge that cannot be considered when evaluating the fact or nature of a conviction.[4]  In discretionary decisionmaking, the Immigration Judge is allowed to consider a respondent’s criminal history even when that history does not form the basis for the charge of removal.[5]  In determining whether relief is merited as a matter of discretion, the Immigration Judge can, for example, look to the actual facts leading up to the conviction, criminal convictions for which the court granted a Judicial Recommendation Against Deportation (JRAD),[6] pending charges,[7] expunged convictions,[8] and other “unfavorable misconduct” even if it did not result in a conviction.[9]  However, arrests not resulting in a conviction, and charges that have been dismissed, other than those dismissed as a result of a diversion program), cannot properly be considered.[10]

[4] Wallace v. Gonzales, 463 F.3d 135 (2d Cir. Sept. 1, 2006) (New York adjudication as a “Youthful Offender” under N.Y.Crim. Proc. Law § § 720.10-720.35, may be used in determining whether noncitizen should be granted adjustment of status as a matter of discretion, even though the adjudication is not a “conviction” for removability purposes); Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir. 2004) (“While ‘it is proper [for the Board] to look to probative evidence outside the record of conviction in inquiring as to the circumstances surrounding the commission of [a] crime in order to determine whether a favorable exercise of discretion is warranted,’ ‘the Immigration Judge and this Board may not go beyond the record of conviction to determine the guilt or innocence of the alien.’”), citing Matter of Mendez-Moralez, 21 I. & N. Dec. 296, 303 n.1 (BIA 1996) (emphasis added). 

[5] Matter of Gonzalez, 16 I. & N. Dec. 134 (BIA 1977) (immigration judge could consider the conviction in reaching a discretionary decision, even though a JRAD had been granted as to that conviction, and even though the charge of deportability was based on an overstay, rather than the CMT conviction itself).

[6] Ibid.

[7] Esposito v. INS, 936 F.2d 911 (7th Cir. 1991); Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985).

[8] Villanueva-Franco v. INS, 802 F.2d 327 (9th Cir. 1986) (finding that the Board could consider noncitizen’s extensive criminal record, which included an expunged felony conviction for assaulting a police officer, in weighing whether voluntary departure was merited as a matter of discretion); Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994) (IJ allowed to examine conviction dismissed following completion of a pre-trial diversion program).

[9] Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995) (“In determining whether an application for relief [voluntary departure] is merited as a matter of discretion, evidence of unfavorable conduct, including criminal conduct which has not culminated in a final conviction for purposes of the Act, may be considered.”).

[10] Billeke-Tolosa v. Ashcroft, 385 F.3d. 708 (6th Cir. Sept. 30, 2004) (reversing BIA’s failure to follow its case law on significance of dismissed charges in discretionary decision); Sierra-Reyes v. INS, 585 F.2d 762 (5th Cir. 1978) (although immigration judge acted improperly in considering police reports implicating noncitizen in criminal activity as “adverse factors” bearing on discretionary relief from deportation, reversal was not required in view of other evidence of record); Matter of Catalina Arreguin de Rodriguez, 21 I. & N. Dec. 38 (BIA 1995).



The ILRC has expanded and updated the free Relief Toolkit for Defenders. The purpose of the Toolkit is to help defenders quickly identify possible immigration applications or relief for which the client might be eligible. The toolkit is one of the Notes from the California Chart and Notes. Thanks to Kathy Brady.

First Circuit

Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

Sixth Circuit

Kouljinski v. Keisler, 505 F.3d 534 (6th Cir. Oct. 16, 2007) (immigration judge may consider noncitizen's three convictions for driving under the influence of alcohol in denying the application for asylum as a matter of discretion).
Lacy v. Gonzales, __ F.3d __, 2007 WL 2372304 (6th Cir. Aug. 21, 2007) (noncitizens who enter the United States pursuant to the Visa Waiver Program waive any rights to contest removal other than on a basis of asylum).

Eighth Circuit

Sanchez v. Holder, 614 F.3d 760 (8th Cir. Aug. 2, 2010) (no statutory support for petitioner's argument that the burden of proof rested on the government in this case to prove his conviction of an aggravated felony to disqualify him from eligibility for cancellation of removal). Note, this case did not cite or discuss Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007).
Sanchez-Velasco v. Holder, 593 F.3d 733 (8th Cir. Jan. 20, 2010) (noncitizens have no right to due process in purely discretionary remedy of cancellation of removal, therefore noncitizen could not claim IJ violated due process by excluding witnesses).

Ninth Circuit

Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (record of conviction that is inconclusive as to the exact nature of the controlled substance involved is sufficient to establish eligibility for cancellation of removal, placing on the government the burden of going forward to prove that the controlled substance the petitioner possessed was heroin or some other controlled substance listed under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)); following Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir.2007) (person seeking "to prove eligibility for cancellation of removal can meet his or her initial burden by pointing to an inconclusive record of conviction."); S-Yong v. Holder, 578 F.3d 1169, 1174, 1176 (9th Cir.2009).
Sandoval-Lua v. Gonzales, ___ F.3d ___, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) (California conviction of transportation of methamphetamines, in violation of Health & Safety Code 11379(a), did not constitute a drug-trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), and therefore did not disqualify the noncitizen from eligibility for cancellation of removal for LPRs, under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), because the noncitizen offered an inconclusive record of conviction that showed the conviction was not necessarily for an aggravated felony, and thus offered sufficient evidence to establish by a preponderance of the evidence that he was not convicted of an aggravated felony).
The court stated:
we must determine whether the judicially noticeable documents establish that Lua's conviction necessarily was for all of the elements constituting an aggravated felony under 8 U.S.C. 1101(a)(43)(B). If the record of conviction does not so establish, Lua's 11379(a) conviction cannot amount to the generic offense, and Lua has carried his burden. This conclusion results from the Supreme Court's holdings in Taylor, 495 U.S. 599-602, and Shepard, 544 U.S. at 19-21, which both stress that a predicate conviction qualifies as a generic crime under the modified categorical approach only if the record of conviction shows the jury "necessarily" found all of the generic elements, or the defendant "necessarily" admitted all of the generic elements in a plea.

It is just as possible, on the basis of the record, that Lua pleaded to the nongeneric elements. When confronted with such a record, pursuant to Taylor and Shepard we must conclude as a matter of law that the conviction was not for a generic offense for purposes of determining whether Lua has committed an aggravated felony under the INA. Thus, Lua has carried his burden to show that he has not been convicted of an aggravated felony. Sandoval-Lua v. Gonzales, ___ F.3d ___, ___, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) (footnotes omitted).
Sandoval-Lua v. Gonzales, ___ F.3d ___, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) (respondent in removal proceedings bares the burden of proof before the BIA to establish eligibility for relief by a preponderance of the evidence), citing 8 C.F.R. 1240.8(d); see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. July 31, 2006) ("[A]n alien who applies for cancellation of removal bears the burden of demonstrating that he is eligible for such relief.").


Countries added to Visa Waiver Program (wherein admittees waive rights to immigration hearings and relief), as of November 17, 2008, include: Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic. Federal Register, Vol. 73, No. 222, Monday, Nov. 17, 2008.
The normal burden of proof where a noncitizen applies for relief from deportation or inadmissibility is on the noncitizen: "The respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion." (8 C.F.R. 1240.8(d) [part 1].) However, where the government is asserting that a bar to relief exists, the government first bears a burden of production of evidence that each element of the bar exists, and then the noncitizen bears the burden of persuasion by a preponderance:

If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. (8 C.F.R. 1240.8(d) [part 2] (Emphasis supplied.)

This regulation creates two distinct standards: one for eligibility and the favorable exercise of discretion, and a second for bars or mandatory grounds of denial.

The regulation creates a rebuttable presumption for mandatory grounds of denial. Thus, the government bears the initial burden of production to prove that the mandatory bar applies, and, absent such evidence, the respondent is not barred from relief. The Ninth Circuit held the governments burden of production was the same as the burden to prove deportability, for example, a high burden to establish respondent has an aggravated felony. Cisneros-Perez v. Gonzales, 451 F.3d 1053, 1059-60 (9th Cir. 2006).

The BIA has a slightly different approach which requires the Government to produce some evidence to satisfy its burden. See In re SK, 23 I. & N. Dec. 936, 941 (BIA 2006) (material support bar to asylum); In re RSH, 23 I. & N. Dec. 629, 640 (BIA 2003) (national security danger bar to asylum).

The Board has not defined how much evidence is sufficient to show that the evidence indicates that a bar applies. In Matter of SK, supra, the government met its burden on each element of the material support bar through "sufficient evidence" in the record. In re RSH, supra, the Board held that a "plethora" of evidence is sufficient to shift the burden of production. Although BIA uses conclusory language, there needs to be evidence for each element of the bar.