Tooby's California Post-Conviction Relief for Immigrants

 

(B)

Grounds of Deportation.  While some crime-related grounds of deportation are triggered by a conviction,[13] others are triggered by conduct.[14]  In many cases, however, a carefully constructed criminal disposition may avoid establishing both conviction- and conduct-based grounds.

 

(1)  Aggravated Felony Convictions.  By far the most devastating ground of deportation is the “aggravated felony.”  The term “aggravated felony” refers to a group of about 40 criminal offenses Congress has chosen to receive especially harsh immigration treatment.[15]  Any conviction that falls within this group is an aggravated felony, regardless of the date of commission or conviction.[16]  If it fits the definition, it constitutes an aggravated felony even if it is a misdemeanor.[17]  Conviction of an aggravated felony triggers mandatory deportation.  Once deported, the noncitizen will never be able lawfully to return to the United States to live.  A comprehensive definition of this term is contained in a 1000-page practice manual.  N. Tooby & J. Rollin, Aggravated Felonies (2006).  About half of these offenses are aggravated felonies only if a sentence of one year or more has been imposed (regardless of whether it is suspended).  The other half are aggravated felonies, regardless of sentence.  Therefore, one of the most important things criminal counsel can do – in those cases where sentence matters – is to obtain a sentence ordered of less than one year.  See Chapter 8, infra.

 

(2)  Controlled Substances Convictions.  With few exceptions, conviction for violation of any law related to a controlled substance will also render a noncitizen deportable.[18]  In most cases, controlled substances offenses are also aggravated felonies[19] and crimes of moral turpitude.  In many cases, no relief will be available to avoid removal on the basis of a controlled substances offense.[20]

 

(3)  Convictions of Crime(s) of Moral Turpitude.  Conviction of single crime of moral turpitude[21] triggers deportation if it was committed within five years of admission and is punishable by at least one year imprisonment.[22]  Conviction of two crimes of moral turpitude after admission triggers deportation regardless of date or sentence.[23]  The phrase “moral turpitude” is not defined by statute, and the immigration authorities have therefore taken a common-law, case by case, approach to defining this vague term.  A practice manual summarizes and indexes all decisions defining what is and is not a crime of moral turpitude.  See N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude (2008).

 

(4)  Firearms Convictions.  Certain firearms[24] convictions also trigger deportation, but not inadmissibility.  See Criminal Defense of Immigrants Chapter 23.

 

(5)  Domestic Violence Convictions and TRO Violations.  Certain domestic violence convictions[25] (and a court finding of violation of certain domestic violence protection orders),[26] are also criminal grounds of deportation. 

 

(6)  Other Grounds of Deportation.  There are in all a total of 52 different grounds of deportation.  These are discussed, and ways to construct non-deportable convictions are suggested, in N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005).  The most recent legislation provides that a federal conviction of failure to register as a sex offender triggers deportation.[27]

 

[13] See Criminal Defense of Immigrants § § 17.3-17.22.

[14] See Criminal Defense of Immigrants § § 17.23-17.29.

[15] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).  See Criminal Defense of Immigrants Appendix B for an alphabetical listing.

[16] See Criminal Defense of Immigrants § 19.21.

[17] The only exception is that a crime of violence aggravated felony, under 18 U.S.C. § 16(b), must be a felony to be an aggravated felony.  INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).  See Criminal Defense of Immigrants § 4.4(E)(7).

[18] See Criminal Defense of Immigrants § 20.13.

[19] See Criminal Defense of Immigrants § § 19.55-19.63.

[20] See Criminal Defense of Immigrants § 20.16.

[21] See Criminal Defense of Immigrants § § 20.2-20.24.

[22] See Criminal Defense of Immigrants § § 20.32-20.37. 

[23] See Criminal Defense of Immigrants § § 20.38-20.41.

[24] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).  See Criminal Defense of Immigrants § § 23.8, et seq.

[25] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).  See Criminal Defense of Immigrants § § 22.9, et seq.

[26] See § 4.5(B); INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).  See Criminal Defense of Immigrants § § 22.33, et seq.

[27] See Criminal Defense of Immigrants § 17.19.