Basic Approach To Analyzing A Criminal Immigration Case

Criminal Immigration issues arise both in applications for benefits and in defense against government enforcement actions.

Applications for benefits include: request for admission as an immigrant, request for admission as a non-immigrant, and requests for special statuses such as temporary protected status.

Defenses against enforcement actions include: applications for relief in removal (deportation and exclusion) proceedings, expedited removal, and detention.

Fortunately, almost all crimes which have immigration consequences in all of these contexts are described in only two statutes: INA §237(a)(2) which describes offenses that render an alien deportable, and INA §212(a)(2) which describes offenses that render an alien inadmissible. The two statutes are quite different. The most striking difference is that the concept of "aggravated felony" is a ground of deportability, but not a ground of inadmissibility.

A case may involve either admissibility or deportability. Often a case will involve both admissibility AND deportability. An example of case that involves admissibility would involve an alien who has married a United States Citizen and would like to enter the United States to reside here permanently. An example of a case involving deportability would involve an alien who has already been admitted to the United States as a lawful permanent resident and has been residing in the United States for many years. An example of a case involving both issues of admissibility and deportability would be an alien who entered the United States lawfully, committed a crime while in the United States, and seeks to adjust his status as a form of relief from removal.

Once it is determined whether admissibility or deportability is in issue, the next step is to compare the statute of conviction to the descriptions of the criminal offenses in the INA. This is the most difficult step in the process and one which absolutely requires competent legal counsel. A very complex analysis has developed over many years of litigation for exercising this process. When comparing the statute of conviction to the crimes covered by the INA we look to see whether it is a "categorical match" which means that the conviction could not be sustained without having engaged in the exact criminal conduct described in the INA. To aid this analysis, the Courts have held that the crimes described in the INA are intended to be read in their "generic" sense and have set forth a process for determining the generic definition of the crime. This analysis has resulted in some counterintuitive but very powerful results. For instance, a conviction for "grand theft" under California law does not categorically match the generic definition of a "theft" under the INA because California has gone beyond the generic definition of theft in its statute to punish a broader range of conduct.

If the statute of conviction is not a categorical match to the definition in the INA, it must next be determined whether the statute of conviction is "divisible" or "overbroad". A statute is divisible if it punishes separate kinds of crimes. A statute is overbroad if simply articulates different means of committing the same crime. If the statute is overbroad, it cannot be used as a ground of removability. If the statute is divisible, the Court may look to the "record of conviction" to determine which of the crimes described in the statute guilt was actually predicated on. Again, a task that requires competent legal counsel.

For purposes of removability, the government bears the burden of proof and thus an inconclusive record favors the alien. For purposes of relief or affirmative benefits, the alien bears the burden of proof and thus an inconclusive record could be fatal.