CRIMINAL ISSUES IN REMOVAL PROCEEDINGS Matt Benson, Cincinnati, Ohio Scott Bratton, Cleveland, Ohio

DEFINITION OF CONVICTION 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, and The judge has imposed some punishment, penalty, or restraint on liberty

HOW TO DETERMINE WHETHER A CONVICTION HAS IMMIGRATION CONSEQUENCES Categorical approach Modified categorical approach Circumstance-specific approach

THE CATEGORICAL APPROACH 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)

STEPS IN THE CATEGORICAL APPROACH Identify the generic federal definition at issue Determine the statute of conviction List the elements of the statute of conviction Compare 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.

ELEMENTS OF THE OFFENSE “’Elements’ are the ‘constituent parts’ of a crime's legal definition—the things the prosecution must prove to sustain a conviction. At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.” Mathis v. United States, 136 S.Ct. 2243 (2016)

IS THE STATUTE DIVISIBLE? Elements vs. Means – See Mathis Look at: Plain language of the statute Jury instructions Cases

MODIFIED CATEGORICAL APPROACH 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)

CIRCUMSTANCE-SPECIFIC APPROACH When does it apply and what evidence can be considered? Nijhawan v. Holder, 129 S.Ct. 2294 (2009)

BURDEN OF PROOF Removability vs. applications for relief

MANDATORY DETENTION 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 year

COMMON GROUNDS OF REMOVABILITY BASED ON CRIMINAL CONVICTIONS Controlled substance offenses Domestic violence Crimes involving moral turpitude Firearms offenses

COMMON GROUNDS OF REMOVABILITY BASED ON CRIMINAL CONVICTIONS Aggravated felonies – INA § 101(a)(43) Drug trafficking Murder Rape Sexual abuse of a minor Crime of violence for which the sentence of imprisonment is one year or more Theft or burglary offense for which the sentence of imprisonment is one year or more Money laundering where the amount of funds exceeded $10,000 Offense involving fraud or deceit where the loss to the victim exceeded $10,000

IMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONS Adjustment of Status Must be admissible – See INA § 212(a)(2) Discretion INA § 212(h) waiver Asylum Aggravated felony bar Particularly serious crime

IMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONS Withholding of Removal Particularly serious crime Aggravated felony (or felonies) for which the aggregate term of imprisonment is at least 5 years Voluntary Departure Aggravated felony bar Good moral character

IMPACT OF CONVICTIONS ON COMMON RELIEF APPLICATIONS Cancellation of Removal (LPR) Aggravated felony bar Discretion 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 character

IMPACT OF CRIMINAL CONVICTIONS ON PROSECUTORIAL DISCRETION Felonies (as classified by the convicting jurisdiction) Aggravated felonies Three or more misdemeanors Significant misdemeanors (including DUIs, domestic violence convictions, offenses with a sentence in custody of 90 days or more)

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