Matt Benson Cincinnati Ohio Scott Bratton Cleveland Ohio INA 101a 48 A formal judgment of guilt OR If adjudication of guilt is withheld and ID: 573388
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Slide1
CRIMINAL ISSUES IN REMOVAL PROCEEDINGS
Matt Benson, Cincinnati, Ohio
Scott
Bratton, Cleveland, Ohio
Slide2
INA § 101(a)(48)
A formal judgment of guilt
OR If adjudication of guilt is withheld and:The judge or jury has found the foreign national guilty or he or she has entered a guilty or no contest plea or has admitted sufficient facts to warrant a finding of guilt, andThe judge has imposed some punishment, penalty, or restraint on liberty
DEFINITION OF CONVICTIONSlide3
Categorical approachModified categorical approachCircumstance-specific approach
HOW TO DETERMINE WHETHER A CONVICTION HAS IMMIGRATION CONSEQUENCESSlide4
This is a determination of whether a criminal conviction meets the criteria for certain immigration consequences such as a controlled substance offense, CIMT, or crime of violence.Moncrieffe
v. Holder
, 133 S.Ct. 1678 (2012)Descamps v. United States, 133 S.Ct. 2276 (2013)Mathis v. United States, 136 S.Ct. 2243 (2016)THE CATEGORICAL APPROACHSlide5
Identify the generic federal definition at issueDetermine the statute of convictionList the elements of the statute of convictionCompare those elements to the generic federal offense
Do the elements of the offense meet the generic definition? Look at the elements of the offense rather than the underlying conduct. Look at the minimum conduct required to violate the statute.STEPS IN THE CATEGORICAL APPROACHSlide6
“’Elements’ are the ‘constituent parts’ of a crime's legaldefinition—the things the
prosecution
must prove tosustain a conviction. At a trial, they are what the jurymust find beyond a reasonable doubt to convict thedefendant, and at a plea hearing, they are what thedefendant necessarily admits when he pleads guilty.”Mathis v. United States, 136 S.Ct. 2243 (2016)ELEMENTS OF THE OFFENSESlide7
Elements vs. Means – See Mathis
Look at:
Plain language of the statuteJury instructions Cases IS THE STATUTE DIVISIBLE? Slide8
It is used to determine which specific statutory subsection or provision formed the basis for the conviction.The adjudicator can only look at limited documents from the criminal record.
Shepard v. United States
, 544 U.S. 13 (2005)MODIFIED CATEGORICAL APPROACHSlide9
When does it apply and what evidence can be considered?Nijhawan v. Holder
, 129
S.Ct. 2294 (2009)CIRCUMSTANCE-SPECIFIC APPROACHSlide10
Removability vs. applications for relief
BURDEN OF PROOFSlide11
INA § 236(c): Detention is mandatory for foreign nationals convicted of certain criminal offenses.Inadmissible under INA § 212(a)(2)(controlled substance offenses; CIMTs)
Removable under § 237(a)(2)(A)(ii)(multiple CIMTs); (A
)(iii)(aggravated felonies); (B)(controlled substance offenses); (C)(firearms offenses); and (D)(misc. crimes)Removable under INA § 237(a)(2)(A)(i)(CIMT within 5 years of admission) where the sentence of imprisonment imposed is at least 1 yearMANDATORY DETENTIONSlide12
Controlled substance offensesDomestic violenceCrimes involving moral turpitude
Firearms offenses
COMMON GROUNDS OF REMOVABILITY BASED ON CRIMINAL CONVICTIONSSlide13
Aggravated felonies – INA § 101(a)(43)Drug traffickingMurder
Rape
Sexual abuse of a minorCrime of violence for which the sentence of imprisonment is one year or moreTheft or burglary offense for which the sentence of imprisonment is one year or moreMoney laundering where the amount of funds exceeded $10,000Offense involving fraud or deceit where the loss to the victim exceeded $10,000COMMON GROUNDS OF REMOVABILITY BASED ON CRIMINAL CONVICTIONSSlide14
Adjustment of Status
Must be admissible – See INA § 212(a)(2)
DiscretionINA § 212(h) waiverAsylumAggravated felony barParticularly serious crimeDiscretionIMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONSSlide15
Withholding of RemovalParticularly serious crimeAggravated felony (or felonies) for which the aggregate term of imprisonment is at least 5 years
Voluntary Departure
Aggravated felony barGood moral characterIMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONSSlide16
Cancellation of Removal (LPR)Aggravated felony barDiscretion
Cancellation of Removal (non-LPR)
Has not been convicted of an offense under INA § 212(a)(2), 237(a)(2), or 237(a)(3)Good moral characterDiscretionIMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONSSlide17
Felonies (as classified by the convicting jurisdiction)Aggravated feloniesThree or more misdemeanorsSignificant misdemeanors (including DUIs, domestic violence convictions, offenses with a sentence in custody of 90 days or more)
IMPACT OF CRIMINAL CONVICTIONS ON PROSECUTORIAL DISCRETIONSlide18
QUESTIONS