Criminal Issues in Removal Proceedings

Criminal Issues in Removal Proceedings

CRIMINAL ISSUES IN REMOVAL PROCEEDINGS Matt Benson, Cincinnati, Ohio Scott Bratton, Cleveland, Ohio DEFINITION OF CONVICTION INA 101(a)(48) A formal judgment of guilt OR

If adjudication of guilt is withheld and: (1)The judge or jury has found the foreign national guilty or he or she has entered a guilty or no contest plea or has admitted sufficient facts to warrant a finding of guilt, and (2)The judge has imposed some punishment, penalty, or restraint on liberty HOW TO DETERMINE WHETHER A CONVICTION HAS IMMIGRATION CONSEQUENCES

Categorical approach Modified categorical approach Circumstance-specific approach THE CATEGORICAL APPROACH This is a determination of whether a criminal conviction meets the criteria for certain immigration consequences such as a controlled substance offense, CIMT, or crime of violence. Moncrieffe v. Holder, 133 S.Ct. 1678 (2012)

Descamps v. United States, 133 S.Ct. 2276 (2013) Mathis v. United States, 136 S.Ct. 2243 (2016) STEPS IN THE CATEGORICAL APPROACH

Identify the generic federal definition at issue Determine the statute of conviction List the elements of the statute of conviction Compare those elements to the generic federal offense Do the elements of the offense meet the generic definition?

Look at the elements of the offense rather than the underlying conduct. Look at the minimum conduct required to violate the statute. ELEMENTS OF THE OFFENSE Elements are the constituent parts of a crime's legal definitionthe things the prosecution must prove to sustain a conviction. At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, and at a plea hearing, they are what the

defendant necessarily admits when he pleads guilty. Mathis v. United States, 136 S.Ct. 2243 (2016) IS THE STATUTE DIVISIBLE? Elements vs. Means See Mathis Look at: Plain language of the statute Jury instructions Cases

MODIFIED CATEGORICAL APPROACH It is used to determine which specific statutory subsection or provision formed the basis for the conviction. The adjudicator can only look at limited documents from the criminal record. Shepard v. United States, 544 U.S. 13 (2005)

CIRCUMSTANCE-SPECIFIC APPROACH When does it apply and what evidence can be considered? Nijhawan v. Holder, 129 S.Ct. 2294 (2009) BURDEN OF PROOF Removability vs. applications for relief

MANDATORY DETENTION INA 236(c): Detention is mandatory for foreign nationals convicted of certain criminal offenses. Inadmissible under INA 212(a)(2)(controlled substance offenses; CIMTs) Removable under 237(a)(2)(A)(ii)(multiple CIMTs); (A)(iii)(aggravated felonies); (B)(controlled substance offenses); (C)(firearms offenses); and (D)(misc. crimes) Removable under INA 237(a)(2)(A)(i)(CIMT within 5 years of admission)

where the sentence of imprisonment imposed is at least 1 year COMMON GROUNDS OF REMOVABILITY BASED ON CRIMINAL CONVICTIONS Controlled substance offenses Domestic violence Crimes involving moral turpitude Firearms offenses

COMMON GROUNDS OF REMOVABILITY BASED ON CRIMINAL CONVICTIONS Aggravated felonies INA 101(a)(43) Drug trafficking Murder Rape Sexual abuse of a minor Crime of violence for which the sentence of imprisonment is one year or more Theft or burglary offense for which the sentence of imprisonment is one year or more

Money laundering where the amount of funds exceeded $10,000 Offense involving fraud or deceit where the loss to the victim exceeded $10,000 IMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONS Adjustment of Status Must be admissible See INA 212(a)(2) Discretion INA 212(h) waiver

Asylum Aggravated felony bar Particularly serious crime Discretion IMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONS Withholding of Removal Particularly serious crime

Aggravated felony (or felonies) for which the aggregate term of imprisonment is at least 5 years Voluntary Departure Aggravated felony bar Good moral character IMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONS Cancellation of Removal (LPR)

Aggravated felony bar Discretion Cancellation of Removal (non-LPR) Has not been convicted of an offense under INA 212(a)(2), 237(a) (2), or 237(a)(3) Good moral character Discretion IMPACT OF CRIMINAL CONVICTIONS ON

PROSECUTORIAL DISCRETION Felonies (as classified by the convicting jurisdiction) Aggravated felonies Three or more misdemeanors

Significant misdemeanors (including DUIs, domestic violence convictions, offenses with a sentence in custody of 90 days or more) QUESTIONS

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