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Digging Deeper and Deeper How Far Will They Go? When the Non-Citizen is in Deportation Proceedings…Challenging the Government on Removability

Categorical, Modified Categorical, Matter of Silva-Trevino—what does this all mean for someone who has been placed in removal based on past criminal convictions?

This brief article gives a simplified explanation of how someone, who is not a lawyer, may understand a couple critical ways to challenge ICE (“the government”) if they are placed in removal based on past criminal convictions. However, as this is a highly complex area of the law, immigration counsel is an absolute necessity to win in removal or deportation proceedings.

If a non-citizen is convicted of a Crime Involving Moral Turpitude. (“CIMT”), they may be placed in removal proceedings sooner or later. A CIMT in very simple terms is doing something that hurts society and is “very bad”.  When someone is placed in removal proceedings first it should be determined whether the offense is really a CIMT deeming the non-citizen removable from the United States.  If it is found that the non-citizen has indeed committed a CIMT, then determining the type of relief or defense is essential. This article only discusses whether a non-citizen is even removable, or has the government made a mistake in placing the non-citizen in removal proceedings.

When a non-citizen is placed in removal or deportation proceedings after they have already been tried in a court of law for their crime; he or she may feel they are on trial a second time. Federal and State law clearly prohibits double jeopardy and the retrying of a case. However, it is debatable under current litigation practices between the government and the non-citizen’s attorney that a “retrial” is not actually taking place.

Over the past years, when a non-citizen was placed in removal, the only evidence that the judge could consider was the actual statute in which the non-citizen was convicted to determine removability.  The government could try to introduce other evidence that proved what the actual  “conduct” of the non-citizen was, but this evidence would not be considered.  This method applied if the statute was not divided into small subparts.

If it was found that the statute incorporated removable and non removable offenses and the least “culpable” behavior did not meet the federal definition of a removable offense, the non-citizen would win.  In simple terms, if the State statute that an individual is convicted of violating is so broad that no one can be sure by looking at the statute alone what the non-citizen was even convicted of, the non-citizen wins if the statute includes offenses in which a non-citizen may NOT be removed.   It all depends on how the State decided to write the statute.  It would not be fair to remove someone if they were convicted for only touching someone against their will in a battery situation, where a CIMT required hitting, or hurting and the non-citizen did not commit the behavior which renders him or her to have committed a CIMT and therefore be removable.  It just so happens that the statute is written so broad no one can really tell.  Under this categorical approach the Immigration judge or court is only allowed to look at the conviction which is the indictment, plea, verdict, and sentence. (sometimes jury instructions). This is only how far they can “dig” to determine which section of the statute has been violated. And if in this digging no one can really tell because the statute is written very broad— the non-citizen wins and they would not be removed from the United States.

However, if the statute is divisible meaning that it is written with subparts and very specific in itemizing different types of violations, the non-citizen’s conviction is scrutinized much closer. The Immigration judge and court may allow the government to dig even further into the non-citizen’s file, not to determine conduct— but to determine what part of the itemized statute the non-citizen was actually convicted of. This is referred to as the modified categorical approach.  Now the evidence that can be looked at to determine what subpart of a divisible statue the non-citizen was convicted of includes, but may not be limited to, the factual basis for a plea, or the jury instructions in case of verdict.

Very recently, significant and dramatic changes have taken place that makes it tougher for the non-citizen in removal proceedings.  Under the new case Matter of Silva-Trevino the world of “how to determine if a non-citizen committed a CIMT” has become more challenging.  Now the court and judges can dig even deeper into the non-citizens criminal file.  The new method claims to still focus on the elements of the state statute to see if it is a CIMT, and not look at the actual circumstances underlying the offense. However, now even police notes amongst other evidence is being used to determine if a crime is a CIMT, and the burden of proof has also shifted largely from the government to an alien that is removable. (At least one judge suggested that the police note would need to be admitted and attached as actual evidence to the record of conviction to be considered).  Please note that some of the complex analysis has been left out here purposely to help the reader focus on the big picture.

One troublesome point to highlight is if a state statute is broad and involves removable and non-removable offenses then the burden is on the non-citizen to go and find a case or cases that show the criminal statute was used to prosecute and convict someone for conduct that did not involve moral turpitude (i.e. a CIMT) and then maybe the non-citizen will win.

Overall, the deeper digging where will it stop?  Keeping abreast of current cases with your immigration counsel is critical as this issue may in the future reach the U.S. Supreme court and the law continues to evolve. The non-citizen needs to work with their Immigration attorney to find a way to use the “deeper digging” to their advantage.  It is also important to argue that Matter of Silva-Trevino was wrongly decided if your immigration attorney sees this as advantageous and appropriate aggressive representation.

Please feel free to contact our office with any questions at info@scottcclaw.com . You may call us at 703.955.7998 or 202.296.0122. We have offices in Northern Virginia, Maryland and Washington D.C.

ScottMond Law Firm

www.scottcclaw.com

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