A generation of pleading tactics may be down the drain.

Sunday, January 24th, 2010
By: Jonathan MontagJ.D.

Immigration lawyers involved in advising aliens who have been arrested and their criminal defense attorneys have honed skills in trying to mitigate the effects of a criminal conviction on immigration status. In other words, attorneys try to find ways for an alien to plead guilty so he or she will not be deportable, or if he or she cannot avoid deportation, he or she will at least be able to ask for relief (forgiveness) so as not to be deported.

Many crimes render a non-citizen deportable and many crimes do not. Similarly, many crimes that render an alien deportable can be forgiven, but many cannot. The alien must waltz his or her way through the criminal statutes to find crimes that do not render him or her deportable or that at least allow him or her to seek forgiveness.

The strategic calculus often involved finding ambiguous statutes – ones that can either be deportable offenses or not. The next step was then to keep any facts out of the record of conviction that would show that the alien committed a deportable act. Here is an example. Domestic violence is a deportable offense. To be convicted of domestic violence, and alien must be found to have committed a crime of violence and the victim must have been a close relative or a cohabitant – the domestic part of domestic violence. There are crimes that are unambiguously crimes of domestic violence – the elements that must be proved for a conviction are that the alien committed a crime of violence against a loved one. However, other crimes are not so clear. Battery is such an offense in California. Under Cal. Penal Code § 242, battery is defined as using force against another person. A person can be convicted of battery for the slightest unwanted touching (force) as well as the cruelest violent harm (violence). Merely being convicted of battery does not in itself mean a person was convicted of domestic violence because the crime may have involved force rather than violence and the victim may not have been a loved one. For example a wife may get fed up with her husband and throw a paper cup of water at him. This would be a battery. Thus, the alien can avoid being deported if the alien can make sure the conviction papers in the file do not indicate violence instead of force and/or that the victim was a loved one. Bear in mind that in most cases the government has the burden of proving deportability and cannot look for evidence outside of the conviction documents to meet its burden of proof. Thus, if the government cannot prove deportability from the conviction documents, the alien cannot be deported as a result of the criminal conviction.

The same is true for pleading to a criminal charge and preserving the right to seek forgiveness. This can happen, for example, when an alien is convicted of a drug offense. Nearly all drug offenses are deportable offenses. However, only offenses related to drug trafficking (caution, however – the definition is expansive) make a permanent resident alien ineligible for forgiveness. (An alien who is not a permanent resident cannot avoid deportation if he or she has a drug offense 99 percent of the time – there are exceptions so do not just leave the country without exploring the possibilities.) The trick then is to plead guilty to a crime that is not unambiguously a drug sales crime. One such crime is Cal. Health and Safety Code § 11379, Transportation, sale, or distribution of specified controlled substances. As the name suggests, some of the crimes in the statute are sales crimes and others, like transportation or possession, are not sales crimes. Even though the alien would be deportable for transporting or possessing drugs, he or she would be eligible for forgiveness. The strategy was to make sure the conviction documents did not show sales and the alien could seek forgiveness regardless of whether he actually sold drugs or not.

It is this strategy that is now in shambles. In a recent Board of Immigration Appeals decision, Matter of Almanza-Arenas, 24 I. & N. Dec. 771(BIA 2009), the Board of Immigration Appeals concluded that after changes in the law in 2005, an alien must prove his eligibility for relief. In the example about drug selling, the alien must not only make sure that the conviction documents do not show that he sold drugs, but he must also prove that he did not sell drugs. With the alien bearing this burden, merely keeping evidence of drug selling out of the record of conviction is not enough – the alien must prove he did not sell drugs. This could be a very tall order, especially if the alien actually did sell drugs.

Should this decision stand judicial review, and there is reason to believe that it will not, the strategy of finding ambiguous statutes and keeping the record of conviction clean of damaging facts may still work to ward off deportability, but it will no longer work to preserve eligibility for relief. This is a dramatic negative evolution in the law for aliens facing deportation for crimes.

Just one brief note. Some may be horrified to read of this gamesmanship involving aliens who commit crimes. Note that not all criminal statutes are ambiguous – in fact most are not. Also, note that a district attorney must agree to allowing for a plea to an ambiguous statute and that is usually the result of the DA’s being convinced that the (minor) magnitude of the crime does not deserve the collateral result of banishment from the United States. Also, in cases where an alien can seek relief, relief requires balancing the seriousness of the crime and all other illegal activity against positive equities, like family ties, long residence, a solid work history, contributions to the community, property ownership, rehabilitation, and good character. Also, there are prerequisites of long residence in the country to even be eligible for forgiveness. In other words, being forgiven, if eligible, is by no means a foregone conclusion.



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