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

2. 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

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

4. 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 (2012)
Descamps v. United States, 133 S.Ct (2013)
Mathis v. United States, 136 S.Ct (2016)

5. 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.

6. 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 (2016)

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

8. 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)

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

10. BURDEN OF PROOF
Removability vs. applications for relief

11. 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

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

13. 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

14. 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

15. 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

16. 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

17. 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)

18. QUESTIONS