Archive for November, 2012

New test in missing element cases is not changing the results – so far.

Sunday, November 4th, 2012

In immigration law, there are certain crimes an alien can be convicted of that can lead to removal. The immigration statutes, found in the Immigration and Nationality Act, do not list the state crimes and usually not the federal crimes that lead to removal. Rather, the Immigration and Nationality Act names certain types of crimes – such as a “crime of moral turpitude,” or a “theft offense,” or a “crime of violence,” or “sexual abuse of a minor,” or “domestic violence,” and on and on. Before a person can be determined to be removable, the courts must hold that the crime itself is a removable crime, i.e., that the state or federal statute meets a federal definition of a crime of moral turpitude, or a theft offense, or a crime of violence, or whatever. This can be very problematic when a criminal statute includes more crimes than the removal offense, usually referred as a divisible criminal statute, or the removability offense has more elements than the criminal statute violated, a missing element case, or the criminal statute has similar but less restrictive elements to the deportable offense, referred to as a broader element case. An example of a broader element case is when a criminal statute criminalizes possessing pornography while the deportation statute imposes deportation as a penalty for possessing child pornography. In actuality, there is little difference between a broader element and a missing element case. In the example of child pornography, above, the issue is actually that the state statute lacks the “child porn” element. (more…)