General Principles for Removal Based on a Conviction

This article will discuss how a conviction for a crime can lead to a person being deported, or subject to a removal order.

It is important to understand that people who are not U.S. citizens may be deported many reasons, from violating immigration laws, such as entering the country without documentation or overstaying a work or tourist visa.  Also, people who are not U.S. citizens may be deported because of many types of criminal convictions.  In addition, people who are not U.S. citizens can be deported for drug abuse problems, even if they have not been convicted of drug crimes. 

To remove a person from the U.S., the government must prove by clear and convincing evidence that the person is removable (8 U.S.C. § 1229a(c)(3)(A)) and an immigration judge (IJ) must find legal grounds for removal.  Sometimes, there will be multiple grounds for removing someone. 

The specific grounds for removal can be crucial in determining whether the IJ has discretion to grant either voluntary departure from the U.S. or relief from removal that would allow the person to stay in the U.S.  Voluntary departure can be a wise method of leaving the United States and then being allowed to later re-enter, whereas if one is ordered removed, that person may lose the ability to later re-enter the United States legally.

Under the immigration laws, some types of criminal convictions constitute grounds for removing (deporting) a person from the U.S., even if they have been lawfully visiting in or living in the U.S.  Some types of crimes have particularly serious immigration consequences because they are classified under immigration law as being aggravated felonies (AF) or crimes involving moral turpitude (CIMT).  These types of crimes make it more difficult or impossible for a court to exercise discretion to grant relief from removal.

The immigration law lists general categories of crimes for which a person may be removed from the U.S. 8 U.S.C. § 1227(a)(2); 8 U.S.C. § 1101(a)(43).  The list of removable offenses includes some crimes that California law considers relatively minor and that might result in only misdemeanor conviction. For example, removable offenses include some controlled substance offenses (but not a first-time offense of possession of 30 grams of marijuana or less for personal use) and violating a protective order. 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substances); 8 U.S.C. § 1227(a)(2)(E)(ii) (violating protective order). 

People may be removed based on criminal grounds while they are still challenging their convictions on direct appeal. 8 U.S.C. § 1101(a)(48)(A); Planes v. Holder (9th Cir. 2011) 652 F. 3d 991, 996 (conviction may be ground for removal even when appeal pending).  Likewise, filing a habeas petition or other petition challenging a conviction will not stop ICE from going ahead with removal based on the conviction. Pino v. Landon (1955) 349 U.S. 901, 75 S. Ct. 576; 99 L. Ed. 1239; Morales-Alvarado v. INS (9th Cir. 1981) 655 F. 2d 172.

Having a conviction expunged or vacated a conviction for in the interests of justice or for rehabilitation or immigration hardship reasons does not eliminate the immigration law consequences of a conviction (except in regards to some first-time drug possessions prior to 2011).  However, if a court vacates a conviction because of a “procedural or substantive defect,” the conviction cannot serve as a ground for removability. Matter of Pickering (BIA 2003) 23 I. & N. Dec. 621, 624; Nath v. Gonzales (9th Cur 2006) 467 F. 3d 1185; see also Cardoso Tlaseca v. Gonzales (9th Cir. 2006) 460 F. 3d. 1102, 1107.

Also, a modification or reduction of a criminal sentence retroactively governs use of that conviction for removal purposes, regardless of the court’s reason for making the change.  In re Cota-Vargas (BIA 2005) 23 I. & N. Dec. 849.

ICE has the burden of proving that a conviction is a removable offense, and also whether it is an aggravated felony or CIMT under federal law.  Sometimes, ICE claims that people have aggravated felonies, CIMTs, or removable offenses even though their crimes do not actually meet the legal criteria for those categories.  Indeed, figuring out which charges fall into which categories can be complicated because removal based on criminal grounds requires the courts to apply federal immigration law to criminal convictions under state law -- and the two sets of laws do not always directly correspond.  

Just knowing the name and number of the California statute under which the person was convicted and the length of their sentence does not always provide enough information to determine how the person’s conviction is classified under immigration law.  Also, in some situations a person who was convicted under a particular statute might or might not be removable (and might or might not have an aggravated felony or CIMT) depending on how the charge was pled and proven.  Thus, judges use a series of steps to decide whether a state law crime is a removable offense, aggravated felony, or CIMT.  Recent cases have made changes to the process for deciding whether or not a state criminal conviction is a match for the federal offense, and there are likely to be further developments in the law.  Persons considering challenging the government’s classification of their convictions should seek the advice of immigration defense counsel who regularly practices immigration law.

Courts start by doing a “categorical” comparison of the definition of the crime in the state statute and the definition of the removable offense, aggravated felony, and/or CIMT in the immigration law.  If the immigration law refers to a federal criminal statute, the court will use the federal statute’s definition; otherwise the court will use a “generic” definition of the offense as commonly understood.  The question is whether the least of the acts criminalized by the state criminal statute falls within the federal crime definition. Sentencing courts may “look only to the statutory definitions, ” i.e., the elements—of a defendant’s offenses, and not “to the particular facts underlying those convictions.”  

In other words, under the categorical approach, an offense is an aggravated felony only if the full range of conduct covered by the criminal statute falls within the definition of an aggravated felony. Descamps v. United States (2013) 570 U.S. 254, 133 S. Ct. 2276; 186 L .Ed. 2d 438 (under federal law, burglary requires that the entry to the building be without privilege or consent (in other words, by “breaking and entering”) but Penal Code § 459  does not require such an element); Moncrieffe v. Holder (2013) 569 U.S. 184, 133 S. Ct. 1678; 185 L. Ed.2d 727 (to be aggravated felony, crime must not be punishable as a misdemeanor under state law); Taylor v. United States (1990) 495 U.S. 575, 110 S. Ct. 2143; 109 L. Ed. 2d 607.

This article would not be possible without reference to the excellent treatise from The Prison Law Office, California Prison and Parole Law Handbook.  We thank them.