quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
‣ Burden of proof: Deportability. The government has the burden to prove by clear and
convincing evidence that a permanent resident (or other admitted noncitizen) is deportable. 56
If a criminal statute is divisible for purposes of a deportation ground, and the record of
conviction is sufficiently vague, the government cannot meet its burden and the person is not
deportable. 57
Example: In the above example, assume that Tensin is a lawful permanent resident and
the government is arguing that he should be removed because he is deportable for a
controlled substance conviction. With this vague record of conviction, the government
cannot meet its burden of proof, and Tensin is not deportable.
‣ Burden of proof: Admissibility and Applications for Relief. The Ninth Circuit held that the
government also has the burden to prove that a conviction under a divisible statute will make
a noncitizen inadmissible or eligible for status or relief. A vague record of conviction means
that the noncitizen wins, just as it does in proving deportability. However, the BIA ruled
against this, and the Ninth Circuit has not yet reconsidered the issue. 58
Until this is finally resolved, criminal defense counsel cannot assume that a vague record of
conviction will be sufficient for defendants who need to apply for relief or status. This
would include defendants who are undocumented, or deportable permanent residents who
will have to apply for some relief to stop removal, or any other noncitizen who must apply
for benefit or relief. Counsel should attempt to plead specifically to an offense under the
divisible statute that does not carry the adverse immigration consequence. If that is not
possible, however, counsel should attempt to create a vague record of conviction.
Example: This time assume that Tensin is an undocumented man who is applying to
get a green card through his citizen wife. Immigration authorities will assert that Tensin
has the burden of producing documents to prove that the unspecified controlled substance
of his conviction was not one on the federal lists. Criminal defense counsel should plead
specifically to such a substance (examples are listed in § N.8 Controlled Substances,
infra). If that is not possible, counsel should create a vague record and plead to “a
controlled substance.” If possible, counsel should have a back-up strategy, just in case
the Ninth Circuit ultimately does not reaffirm its beneficial rule.
2. Analyzing Criminal Statutes and Reading the Chart: What immigration provision
is a threat? Is there any way to violate the criminal statute that does not come
within the immigration provision?
56 INA § 240(c)(3)(A), 8 USC § 1229a(c)(3)(A).
57 See, e.g., discussion in United States v. Rivera-Sanchez, 247 F.3d 905, 907-8 (9 th Cir. 2001)(en banc); United
States v. Corona-Sanchez, 291 F.3d 1201, 1203-4 (9 th Cir. 2002) (en banc). See also Shepard v. United States, 125
S.Ct. 1254 (2005); Martinez-Perez v. Gonzales, 417 F.3d 1022 (9 th Cir. 2005).
58 See Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009), Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th
Cir. 2007) and further discussion in Brady, “Defense Arguments: Matter of Almanza-Arenas” at
www.ilrc.org/crim.php.
N-38 Immigrant Legal Resource Center