Criminal Defense of Immigrants

(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).