Tooby's California Post-Conviction Relief for Immigrants

(C)

Discretionary Decisions.  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 even if it cannot be considered when evaluating the fact or nature of a conviction.[48]  In discretionary decision making, 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.[49]  In determining whether relief is merited as a matter of discretion, the Immigration Judge cannot consider arrests not resulting in a conviction, and charges that have been dismissed, other than those dismissed as a result of a diversion program.[50]

[48] 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). 

[49] 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).

[50] 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).