By Attorneys Eric R. Welsh & Nancy E. Miller
Immigrating to the United States is difficult under the best of circumstances. American immigration laws are notoriously thorny and byzantine; many judges have said that only the Internal Revenue Code rivals the Immigration and Nationality Act in complexity.
These complications are magnified when an immigrant has a criminal record. Crimes can trigger severe immigration consequences, including removal (deportation) from the U.S. or bars to admission or relief. Pleading guilty and accepting what appears to be a lenient sentence like probation without jail time can have dire consequences for a noncitizen.
Of course, not every criminal conviction is so calamitous. Practitioners call the interplay of immigration and criminal law by its own name, “crimmigration,” and the practice of crimmigration law requires an exhaustive knowledge of criminal and immigration statutes, and a familiarity with a constantly changing body of case law that continues to add nuance and wrinkles to the rules.
Immigration laws set forth specific offenses that trigger immigration consequences. When a person is convicted of a crime in state court, practitioners and judges must make an exhaustive analysis to determine whether that state crime fits within the “generic” federal definition of a crime with immigration consequences. The courts use terms like “categorical approach” and “modified categorical approach” to determine whether there are alternative means or alternative elements such that a person convicted of a state crime that sounds like a deportable offense is actually not deportable.
If your head is spinning at this point, don’t worry: you’re in good company! The rules for determining when a crime has immigration consequences are continuously evolving and morphing through decisions issued from the U.S. Supreme Court, the Courts of Appeals, the immigration courts, and the Board of Immigration Appeals (BIA). To be polite, crimmigration has a tendency to frustrate and confuse. But, with the right counsel and zealous advocacy, there may be hope, even for difficult cases involving serious criminal records.
The U.S. Court of Appeals for the Ninth Circuit published two decisions last week that prove this point. In Sandoval v. Sessions, the court found that the Immigration Judge (IJ) and the BIA had both erred when they denied relief to a permanent resident who was ordered deported because of his conviction for “delivery of a controlled substance.” The IJ and the BIA refused to allow Mr. Sandoval to apply for relief, despite the facts that he had a green card, had lived in the U.S. for more than 30 years and had not been arrested since his conviction in 1998, and his two children and his wife of 26 years were all U.S. citizens. Mr. Sandoval’s lawyer argued that the statute of conviction was overbroad, and did not match the generic federal offense of “drug trafficking.” The IJ and the BIA rejected that argument, but the Ninth Circuit agreed with Mr. Sandoval’s attorney. After a detailed analysis of the complicated interplay between the criminal statutes and the immigration laws, the Ninth Circuit found that Mr. Sandoval was eligible for relief, reversed the order of removal, and sent the case back to the Immigration Court.
The second case, Lozano-Arredondo v. Sessions, also illustrates the value of zealous advocacy. Like Mr. Sandoval, the immigrant in Lozano-Arredondo was found ineligible for relief and ordered removed by an IJ because of a criminal conviction. Mr. Lozano-Arredondo’s attorneys appealed that decision, first to the BIA and then to the Ninth Circuit, arguing that the IJ and the BIA had misapplied the rules for criminal bars to relief. The court analyzed the criminal code and the immigration laws, comparing the statute of conviction to the generic federal definition of a “crime involving moral turpitude.” The court addressed when it is appropriate or not appropriate to look beyond the statute to decide if a person is barred from relief. As in Sandoval, the court concluded that the IJ and the BIA had wrongly ordered removal, and sent the case back to consider Mr. Lozano-Arredondo’s eligibility for relief.
These two cases demonstrate the value of a good crimmigration lawyer. Mr. Sandoval and Mr. Lozano-Arredondo were both ordered removed because of criminal convictions, but their lawyers appealed those removal orders up to the Circuit Court and won. Now, they both have the chance for relief so that they can stay with their families in the United States as permanent residents.
A noncitizen with a criminal record is not without hope but the battle for immigration relief may not be easy. The interplay of criminal and immigration laws is a minefield of statutory interpretation that requires careful navigation. Any person facing such difficulties should have a knowledgeable lawyer willing to fight for them and make the hard arguments to let them stay in t