A View Through The Looking Glass: How Crimes Appear From The Immigration Court Perspective

ABSTRACT: The purpose of this Article is to provide a basic overview of a body of law that has been compared as second only to tax law in its complexity.  Our goal is to highlight the major areas where criminal laws intersect with and impact noncitizens through the Immigration and Nationality Act. No mere article could be comprehensive in this complicated area of the law that is the subject of voluminous treatises and is subject to constant and rapid revision. However it is our hope to orient non-immigration lawyers and judges to how the outcomes of their work in the criminal courts impact noncitizens when they enter our world, the immigration courts.

A VIEW THROUGH THE LOOKING GLASS: HOW CRIMES APPEAR FROM THE IMMIGRATION COURT PERSPECTIVE Hon. Dana Leigh Marks and Hon. Denise Noonan Slavin 39 Fordham Urb. L.J. 91 (2012) Download A View Through the Looking Glass, Fordham Urban Law Journal

Hon. Dana Leigh Marks and Hon. Denise Noonan Slavin*

Introduction ………………………………………………………………………………….. 92

I. Common Misconceptions ………………………………………………………… 94

II. Some Immigration Law Basics ……………………………………………….. 96

III. The Government Players ………………………………………………………. 97

IV. Those Subject to the Immigration Laws ………………………………… 97

V. Removability and Inadmissibility ……………………………………………. 99

VI. Silva-Trevino and Crimes of Moral Turpitude ……………………… 103

VII. What Is A Conviction? ………………………………………………………. 105

VIII. Good Moral Character ……………………………………………………… 106

IX. Common Forms of Immigration Relief Available in Removal         Proceedings…………………………………………………………. 108

X. Padilla v. Kentucky ………………………………………………………………. 112

Conclusion …………………………………………………………………………………… 119

* The National Association of Immigration Judges (“NAIJ”) is the certified repre­sentative and recognized collective bargaining unit which represents the Immigration Judges of the United States. NAIJ is an affiliate of the International Federation of Professional and Technical Engineers, an affiliate of the AFL-CIO.  This Article was prepared by the current President and Vice President of the NAIJ, Judge Dana Leigh Marks and Judge Denise Noonan Slavin, respectively.  The opinions expressed here do not purport to represent the views of the U.S. Department of Justice (“DOJ”), the Executive Office for Immigration Review (“EOIR”), or the Office of the Chief Im­migration Judge (“OCIJ”). The authors are grateful for and wish to acknowledge the invaluable assistance of Hon. Dorothy A. Harbeck, sister Immigration Judge, Adjunct Professor of Law at Seton Hall University School of Law, and faculty member at the Madeline Korbel Albright Institute for Global Affairs at Wellesley College, who in her personal capac­ity and “spare time” provided us with her advice and materials used in researching her Article: Dorothy A. Harbeck et al., The Impact of Padilla v. Kentucky on the Immigration Courts: Does the Potential for Vacating a Criminal Plea Effect Remov­al/Deportation Proceedings?, 1 ST. JOHN’S J. INT’L & COMP. L. 48 (2011).


Have you ever thought you were speaking the same language, only to discover the meaning of the words was completely different? Surely any American who has been a tourist in England or Australia has had that experience. Those of us who have teenagers face such challenges on almost a daily basis.  When viewing crimes from the world of the immigration courts, the certainty that we are talking about oranges instead of apples is a frequent and sometimes perplex­ing conundrum.

Terms that seem straightforward in the criminal law context have different meanings under our immigration laws. Some disposi­tions that states treat as rehabilitative and non-criminal are treated as a criminal conviction under the immigration laws. Some non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.  Seen from the view of the immigration courts, such disconnects and starkly different realities are not infrequent and occur in ever-increasing numbers.

The points of intersection between our criminal laws and im­migration laws seem to have multiplied exponentially over the years. With the recent Supreme Court decision of Padilla v. Kentucky, the impact of criminal convictions and the ramifications they have under our immigration laws have been acknowledged as crucial concepts that every criminal lawyer has a duty to understand.1

The purpose of this Article is to provide a basic overview of a body of law that has been compared as second only to tax law in its com­plexity.2 Our goal is to highlight the major areas where criminal laws intersect with and impact noncitizens through the Immigration and Nationality Act.3  No mere article could be comprehensive in this complicated area of the law that is the subject of voluminous treatises and is subject to constant and rapid revision.4 However it is our hope to orient non-immigration lawyers and judges to how the outcomes of their work in the criminal courts impact noncitizens when they enter our world, the immigration courts.

This Article is framed as an introduction to “Immigration Law 101,” providing information needed to understand the structure of the Act and basic tools to speak the language of that Act.5  It is intended to help attorneys and judges preserve the intent of criminal court or­ders, so that they are implemented consistently with the understand­ing held by the parties at the time of issuance, averting unintended consequences when the conviction is viewed later at the immigration court level. It is our hope that this article will provide a lens through which non-immigration lawyers can peek through to our world and make sense of what they see.

We will start by briefly addressing some common misconceptions held by lawyers and non-lawyers alike.  Then we will discuss the basic structure of immigration law and some of its unique terminology. Next, we explain to whom the law applies and where the immigration courts fit into the immigration law scheme.  We will then delve more deeply into the central concepts of removability and inadmissibility, using criminal grounds as our point of reference and examples.  Then we move on to a discussion of Matter of Silva-Trevino, a 2008 Attor­ney General decision regarding crimes of moral turpitude that has dramatically changed the landscape of the issue of removability for various crimes in immigration courts.6  We next turn our focus to point out the special ways in which the term “conviction” is defined in the immigration context and how criminal acts can have immigration consequences even when no conviction exists.  Next, we provide a very simplified overview of the most common forms of relief sought in the course of removal proceedings. Finally, we will explain the possible impacts of Padilla v. Kentucky on pending removal proceed­ings and prior deportation orders.


In addition to being an extremely complex legal field, immigration law suffers from being a field of law plagued by rampant misconcep­tions. For example, it is not true that marrying a United States citizen confers automatic immigration status.7  Many people believe that law­ful permanent resident status is guaranteed for life, yet long-time law­ful permanent residents, including those who are married to United States citizens and are the parents of United States citizen minor chil­dren, can become deportable based on a single misdemeanor convic­tion.8  United States citizens cannot help their undocumented parents to legalize their status in the United States until they reach the age of twenty-one.9 At that juncture there are significant obstacles to lawful status (sometimes ones which cannot be overcome) if, as is generally the case, the parents entered the United States without proper inspec­tion by an immigration official or overstayed a period of nonimmi­grant status which was once held by them.10  Even more surprising to many people, some individuals who were born abroad have automati­cally inherited United States citizenship and do not even know it.11

There are also widely held misconceptions regarding the authority of immigration judges to grant relief.  In many cases, an immigration judge has no discretion to stop removal in a sympathetic case.12  Be­cause immigration court proceedings are civil in nature, respondents are not entitled to free legal representation and 60% of respondents are unrepresented, a figure which rises to 84% when non-detained cases are taken out of the calculation.13  Immigration judges have a typical caseload of more than 1200 pending cases, a number that has recently been on the rise.14  Most immigration judges are scheduled to be in court on the bench thirty-six hours each week.15 They do their jobs without bailiffs or court reporters and have access to only one-fourth of a judicial law clerk on average, as four judges usually share one clerk.16  Perhaps most challenging of all, the majority of immigra­tion judges’ decisions are rendered orally from the bench immediately at the conclusion of proceedings, without the benefit of a transcript or time for research or reflection.17


Terminology in this field is problematic even within the immigra­tion law itself.  The current law was amended in 1996, replacing de­portation and exclusion proceedings with removal proceedings.18  The proper technical term for an order expelling someone from the Unit­ed States is now “removal,” however colloquially many people still refer to having been ordered “deported.”  Thousands of outstanding deportation orders still exist19 and can be either enforced or reinstat­ed in a variety of factual contexts.20  The term “deportation,” howev­er, is still frequently used in colloquial speech to describe both depor­tation and removal proceedings, despite significant legal differences between the two.21

Removal proceedings commence when a charging document called a Notice to Appear issued by the Department of Homeland Security (“DHS”) is filed with the immigration court.22  The individual against whom the charges are lodged is referred to as the respondent.  In re­moval proceedings, the immigration judge must decide whether the individual is removable as charged.23 After that decision is made, the judge must also decide if the individual can apply to remain in the United States.  These applications to remain in the United States are generally referred to as “applications for relief from removal.”24


The nation’s Immigration Court, which has fifty-nine locations in the United States, Puerto Rico and Saipan, employs approximately 260 immigration judges. These courts comprise the trial level tribunal which determines whether or not a respondent in proceedings is re­movable as charged.25  Often of equally great consequence to the in­dividual, immigration judges are additionally charged with identifying and adjudicating a variety of applications for benefits which may be available.  When these benefits are sought at the immigration court level, they are frequently referred to generically as “relief from re­moval.”  Decisions made by the immigration judges can be appealed to the Board of Immigration Appeals by either party.26


Most basic to our immigration laws is the fact that people fall into two categories, United States citizens and noncitizens, whom the Act defines as “aliens.”27  No United States citizen can be removed (de­ported), denied admission or prosecuted for a crime in which alienage is an element.28  Proof that one is a United States citizen is the most comprehensive defense to a charge of removability or inadmissibility as it mandates termination of the proceedings.29

There are four basic ways to become a United States citizen: birth in the United States or a U.S. territory; derivation of U.S. citizenship at birth abroad through U.S. citizen parent(s); acquisition of U.S. citi­zenship upon the naturalization of a minor child’s parent(s); or natu­ralization.30

All persons who are not United States citizens are termed aliens and are subject to our immigration laws.  Because the term “alien” is often misunderstood and viewed as a pejorative term outside the im­migration law field, this article will refer to “individuals” or “people,” with the understanding that for purposes of our discussion, those re­ferred to in that way are not United States citizens or nationals.

Noncitizens fall into various categories under the Act: lawful per­manent residents (immigrants);31 non-immigrant visa holders;32 un­documented;33 and many others who are present with the knowledge of the government but hold a variety of different statuses, including, but not limited to parolees,34 deferred action status,35 extended volun­tary departure,36 and deferred enforced departure.37

Lawful permanent residents can live and work in the United States permanently so long as they do not become inadmissible or deporta­ble, terms which will be described later in this Article.  They can travel outside the United States and return, subject to certain re­strictions.38 They can petition for their spouses and unmarried sons and daughters to become lawful permanent residents, subject to nu­merical limitations, which are often referred to as a “quota” or “visa number requirement.”39 Lawful permanent residents may choose to naturalize to become United States citizens after a specified period of residence.40 ­

The Act contains more than twenty categories of nonimmigrant vi­sas.41  Examples include tourists for pleasure or business, students, temporary professional workers, performers and athletes, and victims of violent crimes or human trafficking.42  These categories have strict initial qualification criteria, as well as explicit conditions which must be fulfilled in order to maintain valid status.43  Individuals holding such status must comply with all terms of their visa or they become subject to removal.44

Undocumented individuals, sometimes referred to as “illegal al­iens” or “undocumented workers,” include people who have entered the United States without proper inspection by an official of the DHS and those who entered with a visa or permission that has expired or become invalid.45


Under the Act, there are separate provisions which render an indi­vidual inadmissible to enter the United States (sometimes despite an otherwise valid visa) and provisions which cause an individual who is in the United States to become removable.46 With few exceptions, every time a noncitizen seeks to enter the United States from a trip abroad, he or she is subject to the grounds of inadmissibility.  The grounds of inadmissibility also apply to individuals in the United States who are seeking to obtain lawful permanent resident status; a statutory prerequisite for “adjustment” to that new status includes a mandate that the applicant is not inadmissible.47  Even people who are already in the United States and who hold legal status can become removable by violating a condition of their immigrant or nonimmi­grant status or by committing an act or crime that is a ground for re­moval.48

The interplay between these complicated and contradictory provi­sions relating to inadmissibility and removability creates fertile ground for confusion, even for experienced immigration practitioners. Additionally problematic is the fact that individuals who are inadmis­sible or removable due to criminal convictions (as well as some viola­tions of civil protective orders) are often barred from satisfying statu­tory eligibility requirements for various forms of relief from removal.49  State, local or foreign convictions, as well as federal con­victions, may render someone inadmissible, removable, or bar them from relief.50 One reason this may occur is because the Act provides that many types of convictions, and some types of conduct, bar people from demonstrating the good moral character required for most forms of relief.51  Placed in this context, it is easy to see how unin­tended consequences can flow from criminal convictions due to the complex interplay of various provisions of the Act. When one factors in diverse state and federal statutory language along with the variety of prerequisites and obligations imposed by state sentencing disposi­tions, it begins to become quite clear why application of the Act sometimes results in distorted and disparate outcomes at the immi­gration court level.52  Particularly where the impact of a criminal dis­position is not thoroughly considered in advance, the risk of unin­tended consequences is extremely high in this rapidly changing area.

Very generally, the following is a non-exhaustive list of the criminal convictions which often render individuals, including lawful perma­nent residents, removable from the United States.  They include con­victions for: an aggravated felony,53 a crime of moral turpitude,54 a crime relating to a controlled substance (other than simple possession of less than thirty grams of marijuana for personal use),55 a crime of domestic violence,56 a firearm offense,57 or document fraud.58

The most common criminal convictions which render individuals with otherwise valid visas inadmissible to the United States include: a crime involving moral turpitude,59 any crime relating to a controlled substance (with no small-quantity personal-use exception),60 and two convictions for any crime where the aggregate sentence imposed is five years or more.61

Several grounds of inadmissibility and a few grounds of removal are explicitly based on conduct and, thus, do not require a conviction.

Some examples include admission of the essential elements of a crime of moral turpitude62 or controlled substance offenses,63 prostitution,64 alien smuggling,65 or fraud or misrepresentation of a material fact to procure or seek to procure an immigration benefit.66 In such cases, the DHS may seek to use portions of a criminal trial record where no conviction occurred to prove an individual is deportable.

As used in the Act, the term aggravated felony can be particularly misleading to those not familiar with the idiosyncrasies of the Act’s provisions.67 The definition of aggravated felony contains twenty-one subdivisions.68  It includes such offenses as murder, rape, sexual abuse of a minor, crimes of violence, some theft offenses with a sentence of at least one year, and illicit trafficking in controlled substances, fire­arms, or destructive devices.69  It is not too surprising to see these of­fenses characterized as aggravated felonies.  Some misdemeanor con­victions carrying a sentence of one year, however, are also aggravated felonies—an outcome which is not so intuitive.70  For example, mis­demeanor convictions for simple battery (unless it is mere offensive touching), reckless endangerment, assault, unlawful imprisonment, menacing or threatening coercion and theft have come within the ambit of the aggravated felony definition.71

Although the Act has no specific definition of crimes involving moral turpitude, case precedent describes these crimes as those which shock the public conscience; those which are inherently base, vile, or depraved; or those which are contrary to the rules of morality and du­ties owed between persons.72  Crimes involving moral turpitude have been found to include those which involve evil or malicious intent73 or inherent depravity;74 intentional or reckless behavior which risks or causes great bodily harm;75 theft with intent to permanently deprive the owner;76 and crimes involving intent to defraud.77

Crimes of moral turpitude provide an excellent example of multi­ple and differing ramifications under the Act depending on the pro­cedural context. An individual is rendered removable if convicted of a crime of moral turpitude which carries a possible sentence of one year or more within their first five years of admission to the United States.78  He or she is also removable if convicted of two crimes of moral turpitude not arising out of a single scheme regardless of the sentence imposed.79  Yet any conviction for a crime of moral turpi­tude renders an individual inadmissible to the United States, unless he or she can qualify for the narrowly drawn juvenile or petty offense exceptions.80  Thus a lawful permanent resident may not be remova­ble from the United States for a crime committed five years after coming here, but if he or she leaves the United States—even for a short period like a four-day cruise—that lawful permanent resident will not be able to re-enter.  Moreover, conviction for or admission of a crime of moral turpitude can preclude an individual from demon­strating good moral character, which is often a statutory prerequisite to relief.81


Perhaps most unusual of all the law relating to crimes of moral tur­pitude in the immigration court following the Attorney General’s decision in Mat­ter of Silva-Trevino.82 Silva-Trevino has been described by the Board of Immigration Appeals as “a comprehensive decision clarifying the concept of moral turpitude and articulating a methodology for deter­mining whether a particular offense is a crime of moral turpitude.”83 Surprisingly, the greatest impact of this decision does not seem to be on the definition of a crime of moral turpitude, though the decision does reaffirm that a crime of moral turpitude must be committed with specific intent, deliberateness, willfulness or recklessness.84  What is groundbreaking in this decision is the analytical framework it sets forth to determine whether a particular offense falls within that defi­nition.

Under Silva-Trevino, a three step analysis is used.  The first step is familiar to many: the traditional categorical analysis of the elements of the statute, an approach set forth by the Supreme Court decision of Taylor v. United States.85 Going a bit further, the Attorney General, citing Gonzales v. Duenas-Alvarez, held that the assessment of whether a given conviction for a particular offense is a categorical match should be based on the existence of a reasonable possibility, as opposed to a theoretical possibility, that the statute under which the individual was convicted applies to conduct that does not involve moral turpitude.86  If this step yields an unambiguous result, the in­quiry stops there. If not, the analysis proceeds to the second step, the well-understood modified categorical approach.

This second step is also a familiar approach, requiring examination of the traditional record of conviction documents to see whether they contain evidence that a crucial fact, one which renders the crime to be one involving moral turpitude, was an essential element which was proven in the criminal court.87  When this step yields an unambiguous result, the analysis stops there.

If the second step does not resolve the issue, the analysis proceeds to a third step. It is the third step that many find surprising. If the question of whether the crime was one of moral turpitude is still unre­solved after the modified categorical analysis, Silva-Trevino holds that the immigration judge may consider any reliable evidence which is deemed necessary and appropriate to ascertain whether the offense involved moral turpitude.88

Silva-Trevino expressly limits this departure from the traditional Taylor framework to crimes of moral turpitude; thus, this new analyt­ical approach cannot be applied to convictions for aggravated felo­nies, crimes of domestic violence, firearms cases, controlled substanc­es or any of the other grounds of removal triggered by a conviction.89

Even with the limitation of Silva-Trevino to crimes of moral turpi­tude, the addition of a third step to the traditional and well-understood categorical and modified categorical analyses signals a major sea-change for those with criminal convictions.  Immigration law has now taken another giant leap away from well-established standards shared with other fields of law and created a unique per­spective which may not be readily understood from the vantage point of non-immigration lawyers and criminal court judges.

Step three of the Silva-Trevino analysis is extremely broad and places a tremendous amount of discretion in the hands of immigration judges to determine when it is necessary and appropriate to consider evidence beyond the record of conviction, and if so, what evidence would be proper.  Indeed, many immigration judges now hold Silva-Trevino hearings to determine inadmissibility or removability. While it is clear that immigration judges may not go behind the conviction to reassess guilt or innocence, the question of what evidence is necessary and appropriate to consider remains a wide open question at this juncture. For this reason, seasoned immigration practitioners have become virtually obsessive in developing records in a way that assures no casual or unconsidered fact might creep into the moral turpitude assessment down the road.  In light of the Act’s broad inadmissibility provisions, which can be triggered by travel decades after a conviction has been entered, such caution is clearly warranted.


Another example of where the Act has its own unique approach and definition of terminology involves the definition of conviction.90 Some common state court judgments are regarded as convictions un­der the Act, even though they are not treated as convictions under state law. When applying the Act to inadmissibility and removability, the following state court determinations constitute convictions when some form of punishment, penalty or restriction is imposed: admis­sions of fact supporting a conviction, diversion programs if there is a finding of guilt, and deferred or withheld adjudication with a plea of guilty.91

Several state remedies that involve amelioration of a conviction will not be recognized under the Act as vitiating a conviction. Some examples of such ineffective remedies include certain plea withdraw­als or expungements.92  Even the vacation of a conviction is ineffec­tive under the Act where the conviction is vacated solely to alleviate immigration consequences.93 Nor does a presidential or gubernatorial pardon eliminate all grounds of deportability.94

There are some outcomes that clearly do not constitute a convic­tion under the Act. These include pretrial diversion before a plea is entered, deferred prosecution, convictions vacated for legal insuffi­ciency, or convictions vacated for failure of the trial court to advise the defendant of possible immigration consequences of a guilty plea.95


Other examples under the Act where criminal conduct and crimi­nal convictions implicate an individual’s status are the provisions re­lating to good moral character.  The Act defines good moral character in the negative, by describing several specific categories of individuals who cannot demonstrate good moral character.96 Then it provides a catch-all provision, which makes clear that the fact that an individual is not included in one of the specified categories does not preclude a finding that good moral character is lacking.97  Among those who cannot demonstrate good moral character based on conduct are ha­bitual drunkards,98 those whose income is derived principally from gambling,99 and anyone who has given false testimony for the purpose of obtaining a benefit under the Act.100

The criminal grounds which preclude good moral character are based on a reference back to the grounds of inadmissibility relating to crimes of moral turpitude, multiple convictions with an aggregate sen­tence of confinement for five years or more, and controlled substance law violations.101  These provisions also specifically include anyone who has been convicted of an aggravated felony,102 two or more gam­bling offenses,103 or who has been confined to a penal institution for an aggregate period of one hundred and eighty days as a result of a conviction or multiple convictions.104 Even without convictions, indi­viduals may be precluded from demonstrating good moral character when their conduct falls into the inadmissibility grounds applicable to prostitution, alien smuggling and illegal gambling.105

Falling into a category where one is precluded from demonstrating good moral character has far-reaching consequences under the Act, as many immigration benefits, including naturalization, require a showing of good moral character for a specified period of time.

Immigration judges conduct trials in order to rule on whether the DHS has met its burden of proving alienage and removability by clear, convincing, and unequivocal evidence.106  These civil adminis­trative determinations are governed by the specific provisions of the Act, which provide for due process, fundamental fairness and several protections very similar to rights afforded criminal defendants, alt­hough the formal rules of evidence do not apply.107

In the majority of cases, the issue of alienage and/or removability is not contested. The bulk of an immigration judge’s role in most cases is to rule on whether a respondent in proceedings is statutorily eligi­ble for any relief from removal and, if so, to determine if he or she merits relief in the exercise of discretion.108  The forms of relief most often sought in removal proceedings include waivers,109 cancellation of removal for permanent residents,110 adjustment to lawful perma­nent residence status based on family or employer sponsorship,111 cancellation of removal for non-lawful permanent residents,112 asy­lum,113 and voluntary departure.114

Each of these forms of relief has specified statutory requirements, but in addition most have a discretionary component—even if an in­dividual fulfills all the statutory requirements, the application may be denied in the discretion of the judge.115  It is beyond the scope of this Article to discuss in detail the statutory requirements and discretion­ary facts which go into ruling on requests for these immigration bene­fits. A brief overview, however, will help provide context and serve to clarify the ramifications of convictions and criminal behavior, demonstrating how they actually play out in immigration court.  Ac­cordingly, a very basic explanation of the statutory requirements of several benefits commonly sought as relief from removal is provided below.

Most important in this discussion is to note the themes regarding statutory eligibility and the exercise of discretion that run through the Act, applying both to these selected benefits as well as most others. For example, criminal convictions, as well as some criminal behavior for which no conviction results, bar non-lawful permanent residents from almost all statutory eligibility for immigration benefits.116 There are waivers which exist in a variety of circumstances, but they gener­ally require qualifying relatives and a showing that the respondent’s removal would cause them extreme hardship, a narrowly defined term under the Act.117 Few benefits under the Act are available to non-lawful permanent residents found to be lacking good moral char­acter. Moreover, behavior which does not automatically preclude good moral character under the Act may nevertheless be considered in arriving at the determination of whether a favorable exercise of discretion is warranted.118

Lawful permanent residents who are removable for crimes other than an aggravated felony may apply for cancellation of removal if they have been lawful permanent residents for five years, have resid­ed continuously in the United States for seven years after having been admitted in any status, and can demonstrate that they are deserving of the favorable exercise of discretion.119  There are bars to this waiv­er based on the timing of the commission of the crime and the initia­tion of removal proceedings.120  A similar waiver, but more generous since it is applicable to more crimes, is available to lawful permanent residents whose convictions were obtained by plea agreements prior to April 24, 1996.121  While cancellation of removal can only be grant­ed to a lawful permanent resident one time,122 a waiver of some con­victions may be available to lawful permanent residents who are re­turning to the United States or those who can apply to readjust their status, if their removal would result in extreme hardship to a qualify­ing relative.123

Very generally, an individual may apply for adjustment of status to that of a lawful permanent resident based on an approved petition filed by a specified qualifying relative or employer if he or she has been inspected and admitted or paroled into the United States and is not inadmissible to the United States.124  There are several additional potential disqualifiers too complex to discuss here, but one extremely relevant factor is that the applicant must demonstrate that he or she is deserving of the favorable exercise of discretion.125  It is important to note that, regardless of whether the applicant for this benefit is apply­ing while in removal proceedings or not, the grounds of inadmissibil­ity are central to eligibility since one of the statutory prerequisites for adjustment of status is to show that one is not inadmissible.126

Some respondents in removal proceedings are eligible to apply for cancellation of removal for non-lawful permanent residents.127  To demonstrate statutory eligibility, a respondent must demonstrate ten years of continuous physical presence, good moral character during that period, that he or she has not been convicted of offenses that are described as grounds for removal or inadmissibility under certain listed sections of the Act, and that his or her removal would cause a United States citizen or lawful permanent resident spouse, parent or child exceptional and extremely unusual hardship.128  This benefit is also available only in the exercise of discretion.129 Repeating and ex­panding on the theme seen in adjustment of status eligibility, note that the criminal grounds of inadmissibility and removability, as well as the good moral character criminal preclusions, are grafted onto this benefit as potential bars to demonstrating statutory eligibility.

An individual is eligible to apply for asylum in the United States if he or she can demonstrate past persecution or a well-founded fear of future persecution on account of race, religion, nationality, member­ship in a particular social group, or political opinion.130 While there are several specified bases which mandate a denial of an application for asylum, relevant here are the provisions which preclude a grant of relief to an applicant who has been convicted by a final judgment of a particularly serious crime in the United States.131  A conviction of an aggravated felony is considered a conviction of a particularly serious crime by definition in the Act.132

Perhaps the most commonly sought form of relief from removal, albeit the most limited in terms of the status it affords, is voluntary departure. To avoid the adverse consequences of an order of remov­al, such as monetary sanctions and a bar to many immigration bene­fits for a period of ten years, an individual in removal proceedings may request voluntary departure.133 Voluntary departure provides permission to leave the United States at one’s own expense, rather than being removed by the government.134  Prehearing voluntary de­parture is sought at one’s first appearance in immigration court and only aggravated felons and persons engaged in terrorist activities are barred from eligibility.135  When requesting voluntary departure at the conclusion of a removal hearing, one must show, inter alia, physical presence in the United States for at least one year prior to service of the charging document, good moral character for the preceding five years, and additionally, that the individual is not removable as an ag­gravated felon or terrorist.136


Now that we have provided a basic overview of the potential effects of criminal convictions on noncitizens, we will examine how these effects play out in immigration court.  Noncitizens with criminal convictions, their families, and sometimes even their attorneys, who come before the immigration court often feel like they have entered a carnival “house of mirrors.”  An all too frequent lament heard in im­migration courts across the country goes something like, “But I’ve al­ready served my time/completed my probation successfully/paid my fine—how can I be charged with the same crime here?”  It is under­standable that people may confuse the “collateral” immigration con­sequences of a criminal conviction with the “punishment” of their sentence and feel they are being punished twice for the same crime. The United States Supreme Court has called the effect of being or­dered deported or removed to be the equivalent of banishment, a sen­tence to life in exile, loss of property, life or all that makes life worth living, and, in essence, a “punishment of the most drastic kind.”137 An order of removal (deportation) can effectively amount to a death sen­tence when an alien will be subject to persecution upon return to his or her country.138  When an immigration judge explains that although a person may have satisfied the sentence of the criminal court there may still be immigration consequences to the conviction, common re­sponses include, “I never would have accepted the plea agreement if I had known,” or, “My attorney told me that it was an ‘adjudication withheld’ and not even a real conviction.”  Thus, it was not surprising that the Supreme Court was asked to address the conditions under which plea agreements would be binding when a miscommunication about immigration consequences occurred.

In Padilla v. Kentucky,139 it was as if the Supreme Court had heard the laments of noncitizens in immigration courts.  Padilla himself, a lawful permanent resident for over forty years and a Vietnam veteran who faced deportation based on an aggravated felony after pleading guilty to transportation of a large amount of marijuana, claimed that he would not have accepted the plea had he not been misinformed by his attorney that he “did not have to worry about immigration status since he had been in the country so long.”140  The Court again recog­nized the dramatic, harsh consequences of criminal convictions for noncitizens. Indeed, it noted that immigration law had changed dra­matically and that immigration reforms had “expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.”141 Based on these changes, the Court found that “as a matter of federal law, deportation is an in­tegral part—indeed, sometimes the most important part—of the pen­alty that may be imposed on noncitizen defendants who plead guilty to specified crimes,”142 reflecting the chorus oft-heard in immigration courts. For these reasons, the Court majority opinion rejected the finding of the state court that erroneous advice about immigration consequences is merely “collateral” and thus not covered by the Sixth Amendment’s guarantee of effective assistance of counsel.143  Ulti­mately, the Court held that Padilla’s attorney’s incorrect advice was constitutionally deficient, and the case was remanded to determine if prejudice resulted.144  The Court did not limit its holding to alleged affirmative misadvise, and further held that it is the duty of counsel to provide advice about issues like deportation.145 Finally, the court considered the concerns that its holding might open a “floodgate” of challenges to plea agreements, but held that such a flood was unlikely based on past experience with similar cases, the possibility that such attacks could result in less favorable outcomes for the defendants, and that informed consideration of possible immigration consequenc­es could only benefit the plea bargaining process.146

The immediate effect of Padilla on immigration proceedings is evi­dent—noncitizens who are able to vacate their pleas may escape the consequence of a removal/deportation order.  If a noncitizen’s crimi­nal conviction is vacated on the basis of a procedural defect in the underlying criminal proceedings, it no longer constitutes a conviction for immigration purposes and removal proceedings are terminated without an order of removal.147  In Matter of Adamiak, the Board held that a conviction vacated under an Ohio statute for failure of the trial court to advise the noncitizen defendant of the possible immigra­tion consequences of a guilty plea is no longer valid for immigration purposes.148  Immigration courts may scrutinize the basis for a vacatur, because case law requires that the conviction not be vacated solely for rehabilitative or immigration purposes.149  A noncitizen try­ing to avoid the immigration consequences of a criminal conviction should be prepared to present evidence of the underlying reasons for the vacatur if it is not clear from the criminal court order itself, such as a copy of the motion to vacate or a transcript of the hearing on the motion.150

Surprisingly, one of the first questions that may be created by Pa­dilla is whether it imposes any additional duties on an immigration judge. An immigration judge is required to address all issues related to removability and to inform respondents appearing before him or her of any “apparent eligibility to apply for any of the benefits enu­merated” in the immigration law.151  This is a formidable task because of the complex and constantly-changing law in this area.  Could this duty require immigration judges to advise noncitizens of relief that may be available to them if they are able to set aside a conviction based on a claim of ineffective assistance of counsel?  It is black-letter law that an immigration judge cannot go behind a record of convic­tion to determine the guilt or innocence of a respondent.152  But if an unrepresented respondent advises the court of a potential ineffective-assistance-of-counsel claim, does the immigration judge have a duty to advise a respondent of relief which would be available if the con­viction were to be set aside by the appropriate criminal court?  The regulatory language uses the words “apparent eligibility,” suggesting that a broad interpretation should be given.  In addition, the recently published Ethics and Professionalism Guide for Immigration Judges reveals that immigration judges are held responsible for complying with the standards applicable to all attorneys in the Department of Justice, even those applicable to prosecutors.153 Thus, the Padilla case may impose an additional duty on immigration judges.

Another possibility is that noncitizens who wish to pursue post-conviction relief under Padilla may appear in immigration court and request termination of proceedings to pursue such relief.  Given that, as discussed above, an immigration court will not go behind a record of conviction, this may not be sufficient grounds for termination.  The DHS may “cancel” a notice to appear before it is filed with the immi­gration court or may move to dismiss on various grounds after it has been filed.154  Although neither of these remedies explicitly mentions the vacatur of a criminal court conviction as an appropriate justifica­tion, several of the grounds are broad.  For example, a motion to dis­miss can be because “[c]ircumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interests of the government.”155 A case can also be administratively closed—which temporarily removes the case from the docket—if not opposed by either party.156

Noncitizens in immigration proceedings who may want to pursue post-conviction relief under Padilla may also request that the court continue the proceedings until the motion to vacate is decided by the criminal court.  Immigration judges have broad discretionary authori­ty over continuances, which are allowed for “good cause” and for a “reasonable time.”157 “Good cause” is not defined in the regulations, but has been interpreted on a case-by-case basis.158

It is instructive to look at the case law that has developed on mo­tions for continuance based on a visa petition pending with the DHS since in both cases the immigration court is being asked to delay pro­ceedings to wait for the decision of another entity, which could impact a respondent’s eligibility for relief from removal.  In Matter of Gar­cia,159 the Board held that, as a general rule, discretion should be fa­vorably exercised where a prima facie approvable visa petition and adjustment application has been submitted.  Thus, in seeking a con­tinuance based on a motion to vacate a criminal conviction, a nonciti­zen should present prima facie evidence regarding the  motion—i.e., the motion itself, affidavit of criminal counsel regarding misadvise or failure to advise regarding immigration consequences of the plea, or a plea colloquy.

A recent case has given some guidance on considerations in mo­tions to continue. In Matter of Hashmi, the Board announced various factors to consider when determining if good cause exists to continue immigration proceedings based on a visa petition pending with the DHS. Those factors include: (1) the DHS response to the motion; (2) whether the underlying petition is prima facie approvable; (3) the re­spondent’s statutory eligibility for relief; (4) whether respondent’s re­lief application will merit a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.160 These factors were described as merely illustrative, and the Board noted that the focus of the inquiry should be on the ultimate likelihood of success of relief from removal before the court.161  Thus, in addition to pleadings before the criminal court, a noncitizen seeking a contin­uance may want to submit a copy of the application for relief that he wishes to pursue with supporting documents to show he or she is a worthy candidate for that relief. Most importantly, the Board stressed, “if the DHS affirmatively expresses a lack of opposition, the proceedings ordinarily should be continued . . . in the absence of unu­sual, clearly identified, and supported reasons for not doing so.”162 Therefore, a noncitizen requesting a continuance should seek the concurrence of the DHS.  Ultimately, however, the outcomes of deci­sions on continuances are difficult to predict since they are heavily dependent on the unique facts presented in each case.

Another recent case addressing the denial of a continuance pend­ing the appeal of a state court denial of a motion to withdraw a guilty plea based on ineffective assistance of counsel illustrates the analysis that may occur regarding a motion to continue to vacate a plea.163 The First Circuit found that the denial of the motion to continue was not an abuse of discretion, noting that the immigration judge had al­ready continued the removal hearing several times while the nonciti­zen’s motion for post-conviction relief was pending with the state criminal court.  In addition, the Court observed that the conviction record “reflect[ed] that [the noncitizen] acknowledged, in writing, the fact that his guilty plea to the controlled substance charge [would] cause deportation, exclusion from admission to the United States, or denial of naturalization or other immigration consequences.”164

Having addressed how Padilla may affect noncitizens with pending removal proceedings, the next query may be how it will affect nonciti­zens who have been ordered deported either based on criminal con­victions that were the result of a plea they now wish to challenge, or noncitizens who were ordered deported because they were not eligi­ble for relief from removal based on a plea that they are moving to vacate.  In such cases, a noncitizen may seek to move to reopen the removal proceedings.

Initially, it should be noted that by regulation, a person who has been physically deported and is outside the United States cannot file a motion to reopen.165 However, this regulation has been found to be invalid by at least one circuit court.166

Motions to reopen in removal proceedings are disfavored because there is a strong public interest in bringing litigation to a close, espe­cially in immigration cases where “granting such motions too freely will permit endless delay of deportation.”167  There are strict require­ments in the regulations for motions to reopen including numerical and time requirements.168  Specifically, a party may file only one mo­tion to reopen, and that motion must be filed no later than ninety days after the date on which the final administrative decision was rendered.169 While there are some regulatory exceptions to these numerical and time bars, they are very limited and none of them ex­plicitly address the vacatur of a criminal conviction upon which a re­moval order is based.170  Thus, unless a noncitizen’s motion can be construed to fall within one of these limited exceptions, the motion is barred if the conviction is vacated more than ninety days after his or her removal order is final. A respondent can avoid numerical and time bars by requesting that an immigration judge or the Board reo­pen proceedings sua sponte, but sua sponte reopening may only be used in exceptional circumstances and not to cure a filing defect or circumvent the regulations.171

Despite all of these restrictions, the Board “has routinely been will­ing to overlook the untimeliness of an alien’s motion to reopen when a conviction supporting a removal order is vacated . . .”172 In fact, the Third Circuit identified ten unpublished cases where the Board reo­pened proceedings, finding that convictions supporting removal or­ders were or may have been invalid under Pickering.173 While none of these decisions are precedential, this seems to indicate that there may be a willingness to address motions to reopen based on vacated convictions. Case law in this area is likely to rapidly evolve in light of the Supreme Court’s decision in Padilla.


We hope that our overview of immigration law and how the Su­preme Court’s decision in Padilla may affect it has not left you feeling “Curiouser and Curiouser.”  As Justice Alito noted in his concurring opinion, immigration law is so complex and specialized that it is not always easy to tell when the law is clear.174  What does appear clear is that the Padilla case will have an impact on state court determinations of whether counsel has been constitutionally deficient regarding past pleas, and if so, whether the deficiency was prejudicial.  As these is­sues are raised and presented in immigration court, it will be incum­bent on immigration judges and the Board of Immigration Appeals to decide whether to delay or reopen removal proceedings.  While we do not have a crystal ball, this Article has given you a glimpse into some of the factors which will be considered in making these decisions, the language we speak in the immigration courts, and how these decisions appear through our looking glass.

1. See Padilla v. Kentucky, 130 S. Ct. 1473, 1494 (2010). The Third Circuit became
the first circuit court of appeals to rule that Padilla has retroactive applicability.
See United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011). Subsequent decisions
from other circuits, however, have held that Padilla should not be retroactively applied.
See United States v. Chang Hong, No. 10-6294, 2011 WL 3805763, at *1 (10th
Cir. Aug. 30, 2011); Chaidez v. United States, No. 10-3623, 2011 WL 3705173, at *3,
*8 (7th Cir. Aug. 23, 2011).
2. See Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847 F.2d
1307, 1312 (9th Cir. 1988) (“With only a small degree of hyperbole, the immigration
laws have been termed ‘second only to the Internal Revenue Code in complexity.’”)
(citation omitted).
3. The Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163
(codified as amended in scattered sections of 8 U.S.C.) will hereinafter be referred to
as the “Act” or the “INA.” Immigration law is exclusively of the federal domain.
The U.S. Supreme Court has held that the authority to admit or exclude noncitizens
from the United States is fundamentally a sovereign act. See United States ex. rel.
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
5. Please be advised that the citations provided in these footnotes are not intended
to be exhaustive, but rather to serve as starting points of authority to research
these propositions.
6. See Silva-Trevino, 24 I. & N. Dec. 687 (B.I.A. 2008).
7. A noncitizen married to a U.S. citizen must first be granted an immigrant visa
and then be admitted to the United States at a port of entry or through adjustment of
status, at which time the grounds of inadmissibility are applied. See 8 U.S.C. §
1181(a) (2006) (requiring that a noncitizen possess a valid unexpired immigrant visa
at the time of application for admission); id. § 1182(a) (listing the grounds of inadmissibility
under which a noncitizen will be rendered ineligible for admission to the
United States); id. § 1255(a)(2) (requiring that a noncitizen be eligible for an immigrant
visa and be admissible to qualify for adjustment of status).
8. See Habibi v. Holder, No. 06-72111, 2011 WL 4060417, at *4 (9th Cir. Sept. 14,
2011) (affirming the Board of Immigration Appeals’ determination that the lawful
permanent resident petitioner was removable and ineligible for relief from removal,
even though his sole conviction was classified as a misdemeanor under California
9. See 8 U.S.C. § 1151(b)(2)(A)(i) (defining “immediate relatives” as including
only parents of U.S. citizens who are “at least 21 years of age”).
10. See id. § 1255(a) (requiring that the noncitizen have been “inspected and admitted
or paroled into the United States” to be eligible for adjustment of status); id. §
1182(a)(9) (rendering inadmissible individuals with specified periods of unauthorized
11. See Compagnie Generale Transatlantique v. United States, 78 F. Supp. 797,
798—99 (Ct. Cl. 1948) (“Any child hereafter born out of the limits and jurisdiction of
the United States, who [sic] father or mother or both at the time of the birth of such
child is a citizen of the United States, is declared to be a citizen of the United States .
. . .”).
12. See 8 U.S.C. § 1229a(c)(4)(A) (requiring the noncitizen seeking relief from
removal to establish not only that a favorable exercise of discretion is warranted if
the relief sought is discretionary, but also that he satisfies statutory eligibility for relief).
ADJUDICATION OF REMOVAL CASES 5–8 (2010), available at http://www.
14. See Oversight Hearing on the Executive Office for Immigration Review Before
the Subcomm. on Immigration, Citizenship, Refugees, Border Sec., and Int’l
Law of the H. Comm. on the Judiciary, 111th Cong. 2 (2010) (statement of J. Dana
Leigh Marks, President, National Association of Immigration Judges), available at
http://judiciary.house.gov/hearings/pdf/Marks100617.pdf [hereinafter Marks Testimony];
EXECUTIVE SUMMARY], available at http://www.americanbar.org/content/dam/aba/
Summary.authcheckdam.pdf; see also Backlog in Immigration Courts Continues to
Climb, TRAC IMMIGRATION (March 11, 2011), http://trac.syr.edu/immigration/
15. See Marks Testimony, supra note 14, at 2.
16. By comparison, most federal district court judges have a caseload of around
400 pending cases. In addition to having a bailiff and court reporter to assist them,
most of them have three full time law clerks. See id. Also by comparison, Veterans
Law Judges decided 729 veterans benefits cases (less than 200 of which involved
hearings) per judge in 2008, and Social Security Judges decided approximately 544
cases per judge in 2007. See ABA EXECUTIVE SUMMARY, supra note 14, at ES-28.
17. See TRAC Immigration, Case Backlogs in Immigration Courts Expand, Resulting
Wait Times Grow, TRAC IMMIGRATION (Jun. 18, 2009), http://trac.syr.edu/
immigration/reports/208/; see also Improving Efficiency and Ensuring Justice in the
Immigration Court System: Hearing Before the S. Comm. on the Judiciary, 111th
Cong. (2011) (statement of the National Association of Immigration Judges), available
at http://judiciary.senate.gov/hearings/hearing.cfm?id=e655f9e2809e5476862f735d
a16c9946 (click webcast).
18. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, § 304, 110 Stat. 3009-546, 587-97.
19. See Fact Sheet: ICE Fugitive Operations, U.S. IMMIGR. & CUSTOMS ENFORCEMENT
(Aug. 19, 2009), http://www.ice.gov/news/library/factsheets/fugops.htm
(estimating that by the end of the 2009 fiscal year, there were approximately 535,000
“fugitive alien cases” in which a noncitizen had been ordered removed, deported, or
excluded by an immigration judge, but had not left the United States or reported to
DHS for removal).
20. See 8 U.S.C. § 1231(a)(5) (2006) (providing for the reinstatement of a removal
order where a noncitizen reentered the United States illegally after having been removed
or having departed voluntarily under an order of removal).
21. Removal proceedings are a unified process for what were previously referred
to under the INA as exclusion proceedings and deportation proceedings. See, e.g.,
IIRIRA, §§ 304(a)(3), 306(a), 309(d), 110 Stat. at 589–96, 607–12, 627 (codified as
amended at 8 U.S.C. §§ 1101, 1229a–c, 1231, 1252); Gerald L. Neuman, Habeas Corpus,
Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 966
(1998) (“IIRIRA realigned the vocabulary of immigration law, creating a new category
of ‘removal’ proceedings that largely replaces what were formerly exclusion
proceedings and deportation proceedings . . . .”). In many ways the procedures remain
substantially unchanged as there are still significant legal distinctions between
those individuals who are seeking admission as opposed to those who have already
entered the country, either legally or illegally. Compare 8 U.S.C. § 1229a(c)(2)(A)
(stating that the applicant bears the burden of demonstrating he is clearly and beyond
doubt entitled to admission), with id. § 1229a(c)(3) (stating that the burden is on
DHS to demonstrate that an individual who has been admitted is removable).
22. See 8 U.S.C. § 1229(a).
23. See id. § 1229a(c)(1)(A).
24. See id. § 1229a(c)(4).
25. See Office of the Chief Immigration Judge, U.S. DEP’T OF JUSTICE,
http://www.justice.gov/eoir/ocijinfo.htm (last updated Apr. 2011). The Immigration
Court is housed within the Executive Office for Immigration Review (EOIR), Office
of the Chief Immigration Judge (OCIJ), which is located in the U.S. Department of
Justice. See id.
26. See id. EOIR also houses the Board of Immigration Appeals (“Board” or
“B.I.A.”), which is responsible for administrative appellate review of removal decisions.
See 8 C.F.R. § 1003.1(b)(2011).
27. See 8 U.S.C. § 1101(a)(3) (defining any person not a citizen or national of the
United States as an “alien.”).
28. See United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009)
(“Alienage is a specific element of this offense [illegal reentry under 8 U.S.C. §
1326(a)], and the government must prove alienage beyond a reasonable doubt.”).
29. See 8 U.S.C. § 1101(a)(3) (defining “alien” as “any person not a citizen or national
of the United States”); id. § 1229a(a)(1) (providing that “[a]n immigration
shall conduct proceedings for deciding the inadmissibility or deportability of an
alien”) (emphasis added).
30. See 8 U.S.C. §§ 1401, 1427, 1431, 1433; see also U.S. CONST. art. I, § 8, cl.4.
31. See 8 U.S.C. § 1101(a)(20).
32. Id. § 1101(a)(26).
33. Id. § 1182(a)(7)(A).
34. When used in the Act, “parole” is a status which can be provided to an individual
who is stopped at a port of entry and alleged to be inadmissible. Rather than
detain all such persons pending a hearing before an immigration judge, at the discretion
of DHS some are “paroled” into the United States, thereby allowing them to be
free from detention during the pendency of their application process or proceedings
before the immigration court. See id. § 1182(d)(5)(A) (“The Attorney General may .
. . in his discretion parole into the United States temporarily under such conditions as
he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant
public benefit any alien applying for admission to the United States . . . .”).
35. On rare occasions, DHS exercises its prosecutorial discretion to allow otherwise
removable individuals to remain in the United States. Some of these individuals
have never been in removal proceedings while others are subject to final orders of
removal. This is a temporary status which can be terminated at any time DHS
chooses, thereby restoring the individual to the legal position he held prior to the
grant of deferred action. See Memorandum from John Morton, Dir., U.S. Immigr. &
Customs Enforcement, to Field Office Dirs., Special Agents in Charge, and Chief
Counsel, U.S. Immigr. & Customs Enforcement, (June 17, 2011), available at http://
36. See KURZBAN, supra note 4.
37. Id.
38. See 8 U.S.C. §§ 1101(a)(20), (27)(A); Huang, 19 I. & N. Dec. 749, 752 (B.I.A.
39. See 8 U.S.C. § 1153(a)(2).
40. See id. § 1427(a)(1); 8 C.F.R. § 319.1(a)(3) (2011).
41. See 8 U.S.C. § 1101(a)(15).
42. See id.
43. See id.
44. See id. § 1227(a)(1)(C).
45. See id. § 1182(a)(6)(A)(i) (“An alien present in the United States without being
admitted or paroled, or who arrives in the United States at any time or place other
than as designated by the Attorney General, is inadmissible.”); id. § 1227(a)(1)(B)
(“Any alien who is present in the United States in violation of this chapter or any
other law of the United States, or whose nonimmigrant visa (or other documentation
authorizing admission into the United States as a nonimmigrant) has been revoked
under section 1201(i) of this title, is deportable.”).
46. Compare id. § 1182(a) (describing classes of inadmissible aliens), with id. §
1229(a)(1) (describing reasons for removal proceedings).
100 FORDHAM URB. L.J. [Vol
47. See id. § 1255(i)(1)(C).
48. See id. § 1227(a)(1)(C).
49. See id. § 1229b(a)(3) (stating the Attorney General may cancel removal of
alien who is inadmissible or deportable from the U.S. if the alien has not been convicted
of an aggravated felony); id. 1229b(b)(1)(B)–(C) (stating that failure to show
good moral character during the statutory period and convictions for certain offenses
bar eligibility for non-lawful permanent resident cancellation of removal); id. §
1229b(d)(1)(B) (stating that commission of offenses described in the criminal
grounds of inadmissibility under § 1182(a)(2) that render the noncitizen either inadmissible
under § 1182(a)(2) or deportable under § 1227(a)(2) stops the accrual of
continuous residence for lawful permanent resident cancellation of removal and of
continuous physical presence for non-lawful permanent resident cancellation of removal);
id. § 1229c(a)(1) (stating that aggravated felony convictions bar eligibility for
pre-conclusion voluntary departure); id. § 1229c(b)(1)(B)–(C) (stating that failure to
show good moral character during the statutory period and aggravated felony convictions
bar eligibility for post-conclusion voluntary departure). If an individual violates
a protective order by conduct which involves a credible threat of violence, repeated
harassment or bodily injury to the person or persons for whom the protective order
was issued, he or she is removable pursuant to § 1227(a)(2)(E)(ii).
50. See id. § 1227(a)(2)(B)(i).
51. See id. § 1101(f); infra Part VIII.
52. See United States v. Aguila Montes De Oca, 655 F.3d 915, 940 (9th Cir. 2011)
(“The process of mapping a generic federal definition onto state crimes—defined
variously by a combination of common law definitions, model penal codes, statutes,
and judicial exposition—has exposed the diversity of legal thought among state legislatures
and courts.”).
53. See 8 U.S.C. § 1227(a)(2)(A)(iii).
54. A person convicted of a crime of moral turpitude is removable if the potential
term of imprisonment for the crime is one year or longer and the offense was committed
within five years of admission to the United States. See id. § 1227(a)(2)(A)(i).
55. See id. § 1227(a)(2)(B)(i).
56. See id. § 1227(a)(2)(E)(i).
57. See id. § 1227(a)(2)(C).
58. See id. § 1227(a)(3)(B).
59. See id. § 1182(a)(2)(A)(i). This ground of inadmissibility does not apply to an
individual who committed this crime when he or she was under eighteen years of age,
where the crime was committed more than five years before the application for a visa
or admission, or if the maximum possible term of imprisonment was one year or less
and the individual was not sentenced to more than six months in prison. See id. §
60. See id. § 1182(a)(2)(A)(i)(II).
61. See id. § 1182(a)(2)(B).
62. See id. § 1182(a)(2)(A)(i)(I) (subject to exceptions for juvenile and petty offenses,
contained in § 1182(a)(2)(A)(ii)(I)–(II)).
63. See id. §§ 1182(a)(1)(A)(iv), (a)(2)(A)(i)(II), (a)(2)(C), 1227(a)(2)(B)(ii).
64. See id. § 1182(a)(2)(D).
65. See id. §§ 1182(a)(6)(E)(i), 1227(a)(1)(E)(i).
66. See id. §§ 1182(a)(6)(C)(i), 1227(a)(1)(E)(i).
67. See id. § 1101(a)(43).
68. See id.
69. See id.
(10th ed. 2008).
71. See generally 2 BRADY ET AL., supra note 70, ch. 9.
72. See S. REP. NO. 81-1515, at 351 (1950) (describing an act of moral turpitude as
“[a]n act of baseness, vileness, or depravity, in the private and social duties which a
man owes to his fellow man or to society”) (internal citation omitted).
73. See Flores, 17 I. & N. Dec. 225, 227 (B.I.A. 1980) (“An evil or malicious intent
is said to be the essence of moral turpitude.”).
74. See Olquin-Rufino, 23 I. & N. Dec. 896 (B.I.A. 2006); Danesh, 19 I. & N. Dec.
669, 670 (B.I.A. 1988) (“Moral turpitude . . . refers generally to conduct [which is] inherently
base, vile, or depraved, [and] contrary to [accepted] rules of morality and
the duties owed between [persons] or [to] society in general.”).
75. See Solon, 24 I. & N. Dec. 239, 240 (B.I.A. 2007) (“Moral turpitude may also
inhere in criminally reckless conduct, i.e., conduct that reflects a conscious disregard
for a substantial and unjustifiable risk.”); see, e.g., Franklin, 20 I. & N. Dec. 867, 867
(B.I.A. 1994) (finding that involuntary manslaughter constitutes a crime involving
moral turpitude); Wojtkow, 18 I. & N. Dec. 111, 113 (B.I.A. 1981) (finding that second
degree murder is a crime involving moral turpitude); Medina, 15 I. & N. Dec.
611, 614 (B.I.A. 1976) (finding that aggravated assault is a crime involving moral turpitude).
76. See Castillo-Cruz v. Holder, 581 F.3d 1154, 1159–61 (9th Cir. 2009).
77. See Torres-Varela, 23 I. & N. Dec. 78, 84 (B.I.A. 2001) (describing why fraud
is readily categorized as a crime involving moral turpitude).
78. See 8 U.S.C. § 1227(a)(2)(A)(i) (2006).
79. See id. § 1227(a)(2)(A)(ii).
80. See id. § 1182(a)(2)(A)(ii).
81. See id. § 1101(f).
82. See Silva-Trevino, 24 I. & N. Dec. 687 (B.I.A. 2008). But see Jean-Louis v.
Att’y Gen. of the U.S., 582 F.3d 462, 470 (3d Cir. 2009) (specifically declining to follow
83. Louissaint, 24 I. & N. Dec. 754, 756 (B.I.A. 2009).
84. See Silva-Trevino, 24 I. & N. Dec. at 689 n.1, 706 n.5.
85. See Taylor v. United States, 495 U.S. 575, 588 (1990).
86. See Silva-Trevino, 24 I. & N. Dec. at 690 (citing Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (1987)).
87. See id. at 704; Sweetser, 22 I. & N. Dec. 709, 715 (B.I.A. 1999).
88. See Silva-Trevino, 24 I. & N. Dec. at 704.
89. See id.
90. See 8 U.S.C. § 1101(a)(48)(A) (2006); see also Ozkok, 19 I. & N. Dec. 546,
551–52 (B.I.A. 1988).
91. Ozkok, 19 I. & N. Dec. at 551–52.
92. For example, withdrawal of plea following successful completion of probation
in Arizona pursuant to A.R.S. § 13-907(a), or, in California, a plea pursuant to deferred
entry of judgment (DEJ), Proposition 36, or Penal Code § 1204.3 does not
eliminate a conviction for immigration purposes. See Murillo-Espinoza v. INS, 261
F.3d 771, 774 (9th Cir. 2001). Another example is New Jersey’s pre-trial intervention
program. See N.J. CT. R. 3:28, available at http://www.judiciary.state.nj.us/rules/r3-
28.htm; see also Salazar-Regina, 23 I. & N. Dec. 223, 227 (B.I.A. 2002); Roldan, 22 I.
& N. Dec. 512, 527 (B.I.A. 1999).
93. See Chavez-Martinez, 24 I. & N. Dec. 272, 273 (B.I.A. 2007); Pickering, 23 I.
& N. Dec. 621, 624 (B.I.A. 2003), rev’d on other grounds, 465 F.3d 263 (6th Cir.
2006); see also 8 U.S.C. § 1101(a)(48) (defining “conviction” under the Act).
94. See 8 U.S.C. § 1227(a)(2)(A)(vi).
95. See, for example, the pre-Padilla New Jersey Supreme Court ruling in State v.
Nunez-Valdez, 975 A.2d 418, 424 (N.J. 2009), holding that ineffective assistance of
counsel vitiates a guilty plea. See also N.J. STAT. ANN. § 2C:43-12 to -22 (West 2005 &
Supp. 2011); N.J. CT. R. 3:28.
96. See 8 U.S.C. § 1101(f).
97. See id.
98. See id. § 1101(f)(1).
99. See id. § 1101(f)(4).
100. See id. § 1101(f)(6).
101. See id. § 1101(f)(3) (providing an exception for a single offense of simple possession
of thirty grams or less of marijuana).
102. See id. § 1101(f)(8).
103. See id. § 1101(f)(5).
104. See id. § 1101(f)(7).
105. See id. § 1101(f)(3) (precluding a showing of good moral character if the
noncitizen “admits the commission” of an offense described in sections 1182(a)(2)(D)
(prostitution) and 1182(a)(2)(6)(E) (alien smuggling)); id. § 1101(f)(4) (precluding a
showing of good moral character for a person whose income is derived principally
from illegal gambling); Urzua Covarrubias v. Gonzales, 487 F.3d 742, 744–46 (9th
Cir. 2007) (affirming agency’s determination that the petitioner was precluded from
establishing good moral character based on his admission of alien smuggling in his
testimony before the immigration judge).
106. See Woodby v. INS, 385 U.S. 276, 286 (1966). But see 8 U.S.C. §
107. See Wadud, 19 I. & N. Dec. 182, 188 (B.I.A. 1984); 8 C.F.R. § 1240.7 (2011).
108. Virtually all forms of immigration relief are discretionary, with the exception
of a couple of remedies provided to fulfill the international treaty obligations of the
United States not to remove an individual to a country where he or she would face
persecution or government torture. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16.
109. See 8 U.S.C. § 1182(h).
110. See id. § 1229b(a).
111. See id. §§ 1151–1159.
112. See id. § 1229b(b).
113. See id. § 1158.
114. See id. § 1229c.
115. See id. § 1229a(c)(4)(A) (requiring the noncitizen to establish both statutory
eligibility and, if the relief
116. See, e.g., id. § 1101(a)(f)(3) (precluding noncitizens who are convicted of or
“admit committing” offenses described in the criminal grounds of inadmissibility
listed in sections 1182(a)(2)(A)–(D) and 1182 (a)(6)(E)); id. §§ 1158(b)(2)(A)(ii),
(B)(i) (stating that convictions for a “particularly serious crime,” which includes aggravated
felonies, bar eligibility for asylum); id. 1229b(a)(3) (stating that aggravated
felony convictions bar eligibility for lawful permanent resident cancellation of removal);
id. § 1229b(b)(1)(B)–(C) (stating that failure to show good moral character
during the statutory period and convictions for certain offenses bar eligibility for nonlawful
permanent resident cancellation of removal); id. § 1229b(d)(1)(B) (stating that
“commission” of certain offenses stops the accrual of continuous residence for lawful
permanent resident cancellation of removal and of continuous physical presence for
non-lawful permanent resident cancellation of removal); id. § 1229c(a)(1) (stating
that aggravated felony convictions bar eligibility for pre-conclusion voluntary departure);
id. § 1229b(b)(1)(B)–(C) (stating that failure to show good moral character
during the statutory period and aggravated felony convictions bar eligibility for postconclusion
voluntary departure).
117. See id. § 1182(h)—(i).
118. See, e.g., C-V-T-, 22 I. & N. Dec. 7, 10 (B.I.A. 1998); Edwards, 20 I. & N. Dec.
191, 194–95 (B.I.A. 1990); Villegas Aguirre, 13 I. & N. Dec. 139, 140 (B.I.A. 1971).
119. See 8 U.S.C. § 1229b(a).
120. See id. § 1229b(d).
121. See INS v. St. Cyr, 533 U.S. 289, 326 (2001), superseded by statute, REAL ID
Act of 2005, 8 U.S.C. § 1778 (2006).
122. See 8 U.S.C. § 1229b(c)(6).
123. See id. § 1182(h).
124. See generally id. § 1255.
125. See id.
126. See id. § 1255(a).
127. See id. § 1229b(b).
128. See id. § 1229b(b)(1).
129. See id. § 1229b(b).
130. See id. §§ 1101(a)(42), 1158(a).
131. See id. § 1158(b)(2)(ii).
132. See id. § 1158(b)(2)(B)(i); see also Y-L-, 23 I. & N. Dec. 270, 274 (B.I.A.
2002) (finding that aggravated felonies which involve unlawful drug trafficking presumptively
constitute serious crimes absent extraordinary and compelling circumstances
for purposes of withholding of removal, a similar, but more stringent, form of
133. See 8 U.S.C. § 1229c(a)(1).
134. See id.
135. See id. § 1229c(b)(1)(c).
136. See id. § 1229c(b)(1).
137. Lehman v. United States, 353 U.S. 685, 691 (1957); accord Jordan v. De
George, 341 U.S. 223, 231 (1951); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); Ng
Fung Ho v. White, 259 U.S. 276, 284 (1922).
138. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Padilla-Agustin v.
INS, 21 F.3d 970, 978 (9th Cir. 1994).
139. 130 S. Ct. 1473 (2010).
140. Id. at 1478.
141. Id.
142. Id. at 1480 (emphasis added) (citations omitted).
143. Id. at 1482. Ultimately, the court found that the “collateral versus direct distinction
is . . . ill-suited to evaluating” the claim for ineffective assistance of counsel in
the deportation context. Id.
144. See id. at 1483–84.
145. See id. at 1484.
146. See id. at 1485–86.
147. See Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1380 (B.I.A. 2000). But it should
be noted that a criminal conviction vacated based on a state rehabilitative statute or
to ameliorate the immigration consequences remains a conviction for immigration
purposes. See Pickering v. Gonzales, 465 F.3d 263, 269 (6th Cir. 2006); Rodriguez-
Ruiz, 22 I. & N. Dec. at 1379.
148. See Adamiak, 23 I. & N. Dec. 878, 881 (B.I.A. 2006).
149. See Nath v. Gonzales, 467 F.3d 1185, 1188–89 (9th Cir. 2006) (“A vacated
conviction can serve as the basis of removal only if the conviction was vacated for
reasons ‘unrelated to the merits of the underlying criminal proceedings,’ that is, for
equitable, rehabilitation, or immigration hardship reasons. But a conviction vacated
because of a ‘procedural or substantive defect’ is not considered a ‘conviction’ for
immigration purposes and cannot serve as the basis for removability.” (quoting Pickering,
23 I. & N. Dec. 621, 624 (B.I.A. 2003), rev’d on other grounds, 454 F.3d 525
(6th Cir. 2006))).
150. See Chavez-Martinez, 24 I. & N. Dec. 272, 273–74 (B.I.A. 2007) (noting the
conflict between circuits regarding which party bears the burden of proving why the
conviction was vacated and holding that in the context of a removal order, the party
seeking reopening bears the burden); see also Rumierz v. Gonzales, 456 F.3d 31, 40–
41 (1st Cir. 2006) (holding that the noncitizen bears the burden of proving that a conviction
was not vacated solely for immigration reasons). But see Nath v. Gonzales,
467 F.3d 1185, 1188–89 (9th Cir. 2006) (placing burden of proving why the conviction
was set aside on the government); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107
n.3 (9th Cir. 2006) (same for motions to reopen).
151. 8 C.F.R. §§ 1240.8(d), 1240.11(a)(2) (2011) (emphasis added).
152. See, e.g., De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir. 1991) (upholding
immigration judge’s refusal to grant continuance of deportation hearing to determine
whether respondent was informed of deportation consequences of his guilty plea before
finding him removable and denying voluntary departure); Sirhan, 13 I. & N.
Dec. 592, 594 (B.I.A. 1970).
154. See 8 C.F.R. §§ 239.2(a), (c).
155. Id. § 239.2(a)(7).
156. Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (B.I.A. 1996).
157. Hashmi, 24 I. & N. Dec. 785, 788 (B.I.A. 2009); 8 C.F.R. §§ 1003.29, 1240.6.
158. See, e.g., Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (holding the
immigration judge did not abuse her discretion in finding the petitioner had not
shown good cause for his second motion for a continuance in order to provide corroborative
evidence in support of his asylum application); Jimenez-Guzman v. Holder,
642 F.3d 1294, 1296–98 (10th Cir. 2011) (holding the agency did not abuse its discretion
in finding no good cause for the petitioner’s motion for a continuance to
await the adjudication in state court of his motion for post-conviction relief where he
had already been granted several continuances).
159. Garcia, 16 I. & N. Dec. 653, 657 (B.I.A. 1978), superseded by statute, Immigration
Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, as recognized in Arthur, 20 I.
& N. Dec. 475, 479 (B.I.A. 1992).
160. Hashmi, 24 I. & N. Dec. at 790.
161. Id.
162. Id. at 791 (emphasis added).
163. See Jimenez-Guzman v. Holder, 642 F.3d at 1294.
164. Id. at 1296, 1299.
165. See 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1) (2011).
166. See Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010) (“[T]he physical removal
of a petitioner by the United States does not preclude the petitioner from pursuing a
motion to reopen.”); William v. Gonzales, 499 F.3d 329, 334 (4th Cir. 2007).
167. INS v. Abudu, 485 U.S. 94, 108 (1988).
168. See 8 C.F.R. § 1003.2(c)(2).
169. See id.
170. See, e.g., 8 C.F.R. § 1003.2(c)(3) (providing for exceptions in reopening certain
in absentia orders to apply for asylum or withholding of removal, joint motions,
and orders based on fraud).
171. See, e.g., Beckford, 22 I. & N. Dec. 1216, 1218 (B.I.A. 2000); J-J-, 21 I. & N.
Dec. 976, 984 (B.I.A. 1997).
172. Cruz v. Att’y Gen. of the U.S., 452 F.3d 240, 246 (3d Cir. 2006).
173. See id. at 246 n.3.
174. See Padilla v. Kentucky, 130 S. Ct. 1473, 1490 (2010) (Alito, J., concurring).

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