Introduction To Representing Noncitizens In Removal Proceedings: Part 3 of 5
BUILDING YOUR CASE
This section attempts to break down the immigration law analysis that you need to do into its component parts, and to suggest sources of help for each part of the analysis.
Sources of immigration law
Immigration law is primarily statutory. It is critical to have a copy of the Immigration and Nationality Act and related statutes and regulations. West Publishing publishes a one-volume book with both, and Matthew Bender/LEXIS and Legal Research Bureau, 800 572-9899, usimmigrationbooks.com, publish annotated multi-volume sets. The statutes and regulations can also be found on the BCIS web site at http://www.bcis.gov/graphics/lawsregs/index.htm.
Ira Kurzban's Immigration Law Sourcebook, published by the American Immigration Law Foundation (800 982-2839), is an indispensable one-volume reference to immigration law. Matthew Bender publishes a twenty-volume treatise, Gordon, Mailman and Yale-Loehr, Immigration Law and Procedure, which costs about $1,500 per year to maintain.
While Benders' Immigration Bulletin (monthly, free if you subscribe to their treatise) and West's Interpreter Releases (weekly, about $500 per year) are useful for keeping up with developments in the law, membership in the American Immigration Lawyers Association (AILA) and access to its members-only web site, InfoNet, is indispensable (Annual membership about $400). Useful, free, general immigration law web sites include Immigration Lawyers on the Web (ILW), http://www.ilw.com, and Los Angeles immigration attorney Carl Shusterman's site, http://www.shusterman.com.
Is the client a noncitizen?
Only non-citizens can suffer immigration consequences for a criminal conviction. A United States citizen or national cannot be deported or denied admission to the United States regardless of where she was born. It is easy to overlook the fact that your client might have derived citizenship through a parent or grandparent. With very limited exceptions anyone born in the United States is a citizen. Also, a child can derive citizenship at birth or up to age eighteen from a U.S. citizen parent, or up to age eighteen if one of the non-citizen's parents naturalizes. "Chain derivations" from grandparent to parent to child are common. Derivation can occur without any action by the recipient or any knowledge of its occurring. Clients with older convictions followed by years of good character may be eligible to naturalize. In particular, veterans enjoy relaxed naturalization requirements. Finally, a number of attorneys are making creative arguments about acquisition of nationality by lawful permanent residents who have made special efforts, like applying for citizenship, to demonstrate their allegiance to the United States. Once citizenship or nationality is acquired, it cannot be lost.
If any of these situations may be applicable to your client, the late Daniel Levy's U.S. Citizenship and Naturalization Handbook, West Publishing, updated annually, is a good source for research.
Is the NTA valid?
The DHS often makes mistakes in the Notice to Appear. If the NTA is invalid, proceedings should be terminated. Although often such termination will be without prejudice, your client may not be charged again or may become eligible for a form of relief which was previously not available to him, for example by marrying his U.S. citizen fiancé or acquiring the ten years of residence required for cancellation of removal. If the immigration judge fails to sustain your challenge, you also have a legitimate appeal ground. For a nondetained client, appeal time is almost always valuable.
Common errors that should result in termination are failure to serve or prove service of the NTA, having the NTA signed by a deportation officer instead of one of the officers listed in 8 CFR § 239.1(a), and failing to advise the noncitizen of the his right to consult his consul. Simon Azar-Farr, Procedural Challenges to Removal Hearings, 2 AILA 1999-00 Immigration and Nationality Law Handbook, 350, is an excellent article on this subject.
Is there a final conviction?
Although in some cases individuals can be inadmissible for their conduct alone (e.g., involvement in drug dealing) or their admission of the elements of a crime, in order for an individual to be deportable, he or she must have been convicted for a removable offense. Thus, a charge of deportability cannot be sustained while a criminal appeal is pending. Nor is a juvenile adjudication - or a youthful offender conviction in some states - a conviction for immigration purposes. See, e.g., Matter of Devison, 23 I&N Dec. 1362 (BIA 2000) (New York youthful offender conviction is not a conviction for immigration purposes.). Vacating a conviction or reducing a sentence to below the relevant removability threshold based on legal error when the sentence was entered will also eliminate it for immigration purposes. Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000).
Nor can a resolution that does not involve an on-the-record admission of guilt support removal. Thus, some state diversion or deferred adjudications, for example, accelerated rehabilitation or family violence programs, may be ideal resolutions to criminal charges against non-citizens. But, be aware that dismissals under diversion programs in some states, e.g., Texas, Oklahoma, California drug offenses after January 1, 1997, require initial entry of a guilty plea and will be considered convictions under INA §101(a)(48)(a).
All of the reference works recommended in the next section include good discussions of the definition of conviction.
If so, is the person inadmissible or deportable for the cited offense(s)?
Prior to enactment of AEDPA and IIRAIRA it was routine for immigration attorneys to concede the charges against their clients and then apply for relief from removal. Because these laws curtailed relief from removal so dramatically, noncitizens in removal proceedings must aggressively deny that they are removable and challenge whether the DHS can meet its burden of proving removability by "clear and convincing evidence."
These challenges typically involve arguing that the state statute under which the noncitizen was convicted is not consistent with the ground of removability charged on the Notice to Appear. Where the offense which the noncitizen is convicted of clearly does not fall within the definition of the ground of removability charged, the noncitizen is entitled to termination of proceedings. Where the conviction statute is divisible, containing some offenses that fall within the ground of removability and others that do not, the DHS has the burden to prove specifically that the noncitizen committed a removable offense, usually by getting a detailed transcript of the plea proceeding or trial. See, e.g., Matter of Teixeira, 21 I&N Dec. 316, 318 (BIA 1996); Matter of Short, 20 I&N Dec. 136, 137 (BIA 1989). DHS is sometimes unable or unwilling to do this, resulting in termination of proceedings. Some other offenses, like crimes of violence, are analyzed categorically, meaning that the minimum criminal conduct necessary to sustain a conviction, rather than the actual conduct of the defendant is considered. Matter of Ramos, 23 I&N Dec. 336, 339 (BIA 2002). Given the possibilities that DHS will not be able to sustain its burden of proof, it is almost always wise for a noncitizen to deny removability at her master calendar removal hearing.
Many widely-violated state statutes have been held to be incongruent with the ground of removal charged or divisible. For example, in Barnaby v. Reno, 142 F. Supp. 2d 277 (D. Conn. 2001), the court held that a conviction for failure to appear under Conn. Gen. Stat. § 53a-172 does not render a noncitizen removable under the failure to appear aggravated felony ground of removal, INA § 101(a)(43)(T), 8 U.S.C. § 1101(a)(43)(T).
Detailed discussion of how to analyze an offense are beyond the scope of this paper. Fortunately, excellent resources are available to orient you. While these books cannot stay up to date with the rapidly-changing case law in this area, they can provide an excellent foundation for work in this area. Criminal Defense of Immigrants (National Edition), by Norton Tooby and Katherine Brady, Crimes of Moral Turpitude, by Norton Tooby and Jennifer Foster, and Aggravated Felonies by Norton Tooby, are comprehensive, easy-to-use handbooks. ($170 each. Available from Tooby's office, 510 597-9856, or web site, .) Immigration Law and Crimes, a one volume treatise, published by West and updated annually, is less useful as a day-to-day handbook but takes a deeper approach, discussing the constitutional underpinnings and historical development of removal law. Its authors are former BIA Member Lory Rosenberg and Dan Kesselbrenner, Director of the National Immigration Project of the National Lawyers Guild. ($175, annual update service about $150.). Two state-specific guides, California Criminal and Immigration Law by Katherine Brady ($165, Immigrant Legal Resource Center, 415 255-9499), and Representing Noncitizen Criminal Defendants in New York State by Manuel Vargas ($50, New York State Defenders Association Criminal Defense Immigration Project, 518 465-3524), are useful, both for analyzing offenses from those states and for gaining insights for potential challenges to other states' statutes. The New York State Defenders Association Criminal Defense Immigration Project also has an extraordinary web page, so good that it is worth typing out its unwieldy url: http://www.nysda.org/NYSDA_Resources/Immigrant_Defense_Project/immigrant_defense_project.html#RepresentingNonCitizens.
Staying up-to-date in this area is incredibly challenging. In addition to membership in AILA, you should join the National Immigration Project of the National Lawyers Guild ($100 per year, www.nationalimmigrationproject.org), which holds seminars, issues quarterly bulletins, has several useful listservs, and provides access to a network of experience removal lawyers around the country. Dan Kowalski, the editor of Bender's Immigration Bulletin, sends emails (30-50 per week) of case decisions, news, announcements, and opinions on emerging immigration law issues. Subscribe by emailing him at . The Immigration Daily from ilw.com includes a wide range of immigration law news and includes many federal court decisions on removal cases. (To subscribe, send a blank email to .) The BIA's web site has an excellent virtual law library, http://www.usdoj.gov/eoir/vll/libindex.html, including precedent decisions, searchable headnotes for those decisions, and a table of circuit court decisions citing BIA precedents. Finally, even with these resources you will be at a serious disadvantage if you do not have access to LEXIS or Westlaw.
Next week: Other Forms Of Relief: Part 4 of 5
About The Author
Michael J. Boyle practices immigration law with the Law Offices of Michael Boyle, a four-attorney immigration law firm in North Haven, CT. Mr. Boyle is also Chair of the Connecticut chapter of the American Immigration Lawyers Association. He is also Staff Attorney for the unions at Yale University and advises the immigration committee of the Hotel Employees and Restaurant Employees International Union. He is a graduate of Yale, the University of London School of Oriental and African Studies, and the University of Connecticut School of Law. Michael Boyle may be contacted at: email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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