#9141 - Deportability Grounds - Immigration Law

Deportability Grounds

1. IIRAIRA: Changed entry to admission: If alien never lawfully admitted, must contend with inadmissibility, not deportability grounds: § 212(a)(6)(A); 235(a)(1)

   1. Purpose: to remove those noncitizens whose continued presence Congress finds injurious to public welfare

   2. Current Deportability Grounds § 237(a)

2. Meaning and Significance of ENTRY and ADMISSION

   1. Admission: the lawful entry of the alien into the US after inspection and authorization by an immigration officer: § 101(a)(13). Thus, No deportation proceedings unless alien made an ENTRY

   2. Meaning of Entry: Matter of Ching and Chen: Entry means

      1. A crossing into the territorial limits of the US, i.e., physical presence

      2. Inspection and admission by an immigration officer OR actual and intentional evasion of inspection at the nearest inspection point

      3. Freedom from official restraint

      4. Alien’s parole into country is not valid entry, nor is an alien detained by the Service: Matter of Lin

         1. Distinction between Ching and Lin: Lin was already in exclusion proceedings, whereas Ching were not in exclusion proceedings and their inspection was complete and determination was final

   3. Burden of entry: BIA found that each individual carries the burden of proving entry

3. Inadmissibility grounds: §§ 212(a)(3)(C)(i), 212(a)(5)(A)(i), 212 (a)(6)(E), 212 (a)(7)(i)(I)

   1. Inadmissibility at entry § 237(a)(1)(E)

      1. Becoming public charge within 5 years of entry § 237(a)(5)

      2. Entry’s effect on procedure: Arriving aliens and EWI aliens have slightly different standards of proof for required proof of admissibility § 240(c)(2)

         1. Aliens present in US at least 2 years exempt from expedited removal procedure required for all the aliens who are inadmissible on document or fraud § 235(b)(1)(A)

      3. Entry determines presence

      4. Alien ordered removed or an alien who voluntary departed who reenters, can be ejected without new removal hearing § 241(a)(5)

   2. Definition of Admission refers to entry § 101(a)(13): Means the lawful entry of alien into US after inspection and authorization by immigration officer

   3. Rosenberg v. Fleuti (1963): Innocent, casual, and brief excursions not necessarily intended as departure disruptive of LPR status are subjective to entry consequences

      1. Fleuti Test (To determine if Departure is Intended)

         1. Length of Time Absent

         2. Purpose of visit/absence

         3. Procurement of Travel Documents

      2. Camins v. Gonzalez (9^th Cir. 2007): We hold that IIRIRA § 301(a)(13) did abrogate the old INA § 101(a)(13) and the Fleuti doctrine, but that the new law cannot be applied retroactively to LPRs who acted in reasonable reliance on the old law prior to IIRIRA’s effective date.

   4. Abandonment of Permanent Residence

      1. Turns on intent to return to US within relatively short period (Khondagholian v. Aschcroft)

      2. Must be temporary visit abroad with above requisite intent

         1. Not intent to retain LPR Status

         2. If visit grows longer because you are waiting for an event to occur: You must retain intent to return to the U.S. within a short time period

      3. All admissibility requirements remain

         1. Absence under 1 year Green Card only

         2. Reentry permits for trip 2 years or less §223

   5. INA § 101(a)(13)(C) – LPR not regarded as seeking admission into US unless:

      1. Abandonment/Relinquished LPR status

      2. Absent from more than 180 days

      3. Departed during removal proceedings

      4. Committed a 212(a) offense

      5. Unauthorized place or manner of entry

      6. Matter of Collado-Munoz: If LPR falls under one of the 6 subcategories is to be regarded as seeking admission; Fleuti doesn’t apply

      7. Richardson v. Reno: If LPR falls under one of the 6 subcategories, apply FLEUTI TEST before can determine if seeking admission. “Unless” doesn’t mean the converse Entry Without Inspection (EWI)

   6. Criminal offense to enter without inspection § 275

      1. After prior removal order, EWI becomes a felony § 276

      2. Crime for even US citizens to enter surreptitiously

   7. Entry while Inadmissible and Related Issues § 237(a)(1)(A)

      1. Inadmissible because of Fraud § 212(a)(6)(C)(i)

      2. Not in possession of valid entry documents: § 212(a)(7)(A)

      3. Falsely Claimed US Citizenship: IIRAIRA makes Alien inadmissible for being present without admission because never validly admitted (Never Inspected)

   8. Post-entry Conduct Related to Immigration Control

      1. Violation of Law: any noncitizen who is present in US in violation of immigration laws is removable: § 237(a)(1)(B): Example: noncitizen working without authorization

      2. Marriage & Investment: Immigrants receiving conditional permanent residence (through marriage or investment) whose immigrant status is terminated become deportable: §§ 216 and 216(a); 237(a)(1)(D)

      3. Adjustment of status: Aliens who are inadmissible at the time of adjustment of status are also deportable § 237(a)(1)(A)

      4. People smuggling: § 237(a)(1)(E)

4. Criminal Related Deportability Grounds

   1. ICE’s ways of identifying immigrants’ crimes: 1) Alien will reveal on form during interview; 2) Information provides tip; 3) Employs full time investigators

   2. What is a conviction? § 101(a)(48)(A): Formal judgment of guilty entered by court OR if adjudication of quilt withheld where

      1. Judge or jury has found an alien guilty OR alien has entered a plea of guilty or nolo contendere OR has admitted to sufficient facts to warrant a finding of guilty AND

      2. Judge has ordered some form of punishment, penalty, or restraint on alien’s liberty to be imposed

         1. Probation Punishment (Matter of Punu)

      3. Conviction = Crime NOT Civil Offense

      4. Finality of Conviction: There is division among courts now about whether § 101(a)(48)(A) requires finality: US v. Parrino: defendant tried to withdraw guilty plea cause of ineffective assistance: pg 553

      5. General Rule on Invalid Convictions: Convictions expunged or vacated because of legal error don’t count for immigration purposes: Convictions expunged for reasons of rehab or to prevent deportation continue to exist

      6. Post-Conviction: Can’t be collaterally attacked in removal proceedings: Other post-conviction remedies can be pursued in court that entered conviction

      7. Expungements: Complex rules for whether can erase convictions for immigration purposes: Not under State Rehabilitative Statutes: Based on plain language of statutory conviction definition and Congressional purpose of uniform results across states

      8. Bad Counsel: can erase conviction when conviction vacated because criminal court failed to comply with state statutes requiring judges to advise alien defendant if possible deportation consequences of guilty please; CEASE TO EXIST FOR IMMIGRATION PURPOSES

      9. Reversed Convictions: Government has decided convictions NOT VALID for immigration purposes once reversed because of flaws in original judgments: Alien has burden of proof when seeking to reopen removal proceedings that conviction not vacated for immigration or rehab purposes (Matter of Chavez-Martinez 2007)

      10. Federal First Offender Act (FFOA): Expungements or simple narcotic possession convictions by first-time offenders: Pre-IIRAIRA--Extended to Immigration: Post-IIRAIRA: 2 courts and AG have expressly declined to consider whether IIRAIRA changed that: 9^th Circuit held that State FFOA and equivalent expungements qualify as conviction for immigration law purposes and can trigger removal: Nunez-Reyes v. Holder (2011)

      11. Executive Pardons: Presidential or governmental pardon eliminates deportability under § 237(a)(2)(A): Moral Turpitude crimes, aggravated felonies, high speed flight from immigration checkpoints included § 237(a)(2)(A)(v)

   3. Crimes Involving Moral Turpitude §§ 237(a)(2(A)(i, ii)

      1. Meaning of Moral Turpitude: “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man” Marciano

      2. Crimes involving moral turpitude: fraud, assault with deadly weapon, assault with intent tokill, murder, voluntary manslaughter

      3. Crimes NOT involving MT: simple assault, involuntary manslaughter (if no “reckless”); DUI

      4. Silva-Trevino: sexual contact with minor involves MT, but only if the D knew or reasonably should have known the victim was a minor

      5. Whether the crime was moral turpitude: 3 approaches

         1. Traditional Approach: courts must determine whether all hypothetically possible criminal conduct—falling within the limits of the statute’s language, including state-court constructions, and the indictment— must necessarily involve moral turpitude: Marciano v. INS (1971)

         2. Categorical Approach: if the crime in its general natures is one which in common usage would be classified as a crime involving moral turpitude, then courts don’t have the burden of considering evidence of mitigating circumstances: Pino v. Nicolls

         3. Conduct of particular defendant: 3 steps from Matter of Silva-Trevino (AG 2008)

            1. Is there a realistic probability that a person whose actual didn’t involve moral turpitude could be convicted under the statute? If the essential elements make it impossible to commit the crime without also committing moral turpitude, then inquiry is over. If one or more cases can be found, move to step 2.

            2. If the record reveals moral turpitude, then inquiry is over. If record in inconclusive then move to step 3.

            3. Ranging beyond the record to see if there is any evidence that defendant acted with MT.

      6. “Committed within 5 years...after the Date of Admission” § 237(a)(2)(A)(i): Sentencing Requirements

         1. Sentence of 1 year or longer may be imposed

         2. Potential NOT actual punishment is the KEY

         3. Shivaraman v. Ashcroft (9th Cir. 2004): held that alien who lawfully entered the United States and maintained...