Ls Sclaid Def Train Immigration Collateral Consequences Combined PDF

APPENDIX C
Aggravated Felony Practice Aids

The Immigration and Nationality Act (INA) includes a definition of “aggravated felony” for
immigration purposes in INA 101(a)(43), 8 U.S.C. 1101(a)(43), contained in Appendix J.
This Appendix contains three practice aids designed to assist the criminal defense practi-
tioner in determining whether a specific criminal offense (felony or misdemeanor) is or
might be deemed to be an aggravated felony:
Appendix C-1 Aggravated Felony Categories Listed in
Statutory Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Appendix C-2 Alphabetical List of Offenses that Are or
Might Be Deemed Aggravated Felonies . . . . . . . . . . . . . . . . C-3
Appendix C-3 Sample Aggravated Felony Case Law
Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-13
For information on the various immigration consequences of an aggravated felony
conviction, see Chapter 3 (Possible Immigration Consequences of a Noncitizen Criminal
Defendant Client’s Case).
For strategies to avoid conviction of an aggravated felony, see Chapter 5 (Strategies for
Avoiding the Potential Negative Immigration Consequences of a New York Criminal Case).
APPENDIX C-1
Aggravated Felony Categories
Listed in Statutory Order
(A) Murder, rape, or sexual abuse of a minor
(B) Illicit trafficking in a controlled substance
(C) Illicit trafficking in firearms or destructive devices, or in explosive materials
(D) Certain offenses relating to laundering of monetary instruments or engaging in
monetary transactions in property derived from specific unlawful activity IF THE
AMOUNT OF THE FUNDS EXCEEDED $10,000
(E) Certain explosive materials and firearms offenses
(F) Crime of violence FOR WHICH THE TERM OF IMPRISONMENT IS AT
LEAST ONE YEAR
(G) Theft or burglary offense FOR WHICH THE TERM OF IMPRISONMENT IS
AT LEAST ONE YEAR
(H) Certain offenses relating to the demand for or receipt of ransom
(5/03) Copyright © 2003 New York State Defenders Association C-1

APPENDIX C
(I) Certain offenses relating to child pornography

(J) Certain offenses relating to racketeer influenced corrupt organizations, or certain
gambling offenses, FOR WHICH A SENTENCE OF ONE YEAR IMPRISON-
MENT OR MORE MAY BE IMPOSED
(K) Offense relating to the owning, controlling, managing, or supervising of a prosti-
tution business; or certain offenses relating to transportation for the purpose of
prostitution; or certain offenses relating to peonage, slavery, and involuntary
servitude
(L) Certain offenses relating to gathering or transmitting national defense informa-
tion, disclosure of classified information, sabotage, or treason; or certain offens-
es relating to protecting the identity of undercover agents
(M) Offense that involves fraud or deceit IN WHICH THE LOSS TO THE VICTIM
OR VICTIMS EXCEEDS $10,000; or certain offenses relating to tax evasion IN
WHICH THE REVENUE LOSS TO THE GOVERNMENT EXCEEDS $10,000
(N) Certain offenses relating to alien smuggling, except in the case of a first offense
for which the alien has affirmatively shown that the alien committed the offense
for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or
parent
(O) Certain improper entry or illegal reentry offenses committed by an alien who was
previously deported on the basis of an aggravated felony conviction
(P) Offense which is falsely making, forging, counterfeiting, mutilating, or altering a
passport or instrument, or certain other offenses relating to document fraud, FOR
WHICH THE TERM OF IMPRISONMENT IS AT LEAST 12 MONTHS, except
in the case of a first offense for which the alien has affirmatively shown that the
alien committed the offense for the purpose of assisting, abetting, or aiding only
the alien’s spouse, child, or parent
(Q) Offense relating to a failure to appear by a defendant for service of sentence if the
underlying offense is punishable by imprisonment for a term of 5 years or more
(R) Offense relating to commercial bribery, counterfeiting, forgery, or trafficking in
vehicles the identification numbers of which have been altered FOR WHICH
THE TERM OF IMPRISONMENT IS AT LEAST ONE YEAR
(S) Offense relating to obstruction of justice, perjury or subornation of perjury, or
bribery of a witness FOR WHICH THE TERM OF IMPRISONMENT IS AT
LEAST ONE YEAR
(T) Offense relating to a failure to appear before a court pursuant to a court order to
answer to or dispose of a charge of a felony for which a sentence of 2 years
imprisonment or more may be imposed
(U) Attempt or conspiracy to commit any of the above offenses
C-2 Copyright © 2003 New York State Defenders Association (5/03)

APPENDIX C-2
Alphabetical List of Some Offenses That
Are or Might Be Deemed Aggravated Felonies
NOTE: Bracketed capital letter references at the end of the title of each offense listed below are
to the relevant subsection of the statutory definition of “aggravated felony” (see Appendix C-1 and
Appendix J).
Accessory after the fact [S] if deemed an “obstruction of justice” offense and IF THE DEFEN-
DANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR
Aggravated sexual abuse [A, F] under category [A] if deemed “sexual abuse of a minor” (see
entry below for “Sexual abuse of a minor”; or under category [F] if deemed a “crime of vio-
lence” (see entry below for “Crime of violence”) IF THE DEFENDANT IS SENTENCED TO
A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR
Aggravated unlicensed operation of a vehicle [F], if deemed a “crime of violence” (see entry
below for “Crime of violence”) IF THE DEFENDANT IS SENTENCED TO A TERM OF
IMPRISONMENT OF AT LEAST ONE YEAR
Alien smuggling offense [N] described in 8 U.S.C. 1324(a)(1)(A) or (2), except in the case of a
first offense for which the alien has affirmatively shown that the alien committed the offense
for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no
other individual) to violate a provision of the Immigration and Nationality Act
Arson [F] if deemed a “crime of violence” (see entry below for “Crime of violence”) IF THE
DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR
Assault [F] if deemed a “crime of violence” (see entry below for “Crime of violence”) IF THE
Attempt [U] to commit any aggravated felony
Bail jumping [T] if the underlying offense is a felony for which a sentence of 2 years’ imprison-
ment or more may be imposed
Bribery [S, R] if deemed an offense relating to “bribery of a witness” or “commercial bribery,”

and IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST
ONE YEAR
Burglary [G, F] if deemed a “burglary” offense, an attempted “theft” offense, or a “crime of vio-
lence” (see entry below for “Crime of violence”), and IF THE DEFENDANT IS SENTENCED
TO A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR
N.Y. NOTE: There may be an argument that NY Burglary in the third degree is not a
“burglary” offense based on the U.S. Supreme Court decision in Taylor v. U.S., 495 U.S.

APPENDIX C
575 (1990), discussed in Chapter 5, section 5.6; however, depending on what the record
of conviction shows, it might be deemed a “crime of violence.”
Child abuse [F], if deemed a “crime of violence” (see entry below for “Crime of violence”) IF
THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST ONE
YEAR
Child pornography offense [I] described in 18 U.S.C. 2251, 2251A, or 2252
Commercial bribery offense [R] IF THE DEFENDANT IS SENTENCED TO A TERM OF

Conspiracy [U] to commit any aggravated felony
Contempt [F, S] if deemed a “crime of violence” (see entry below for “Crime of violence”) or an
“obstruction of justice” offense, and IF THE DEFENDANT IS SENTENCED TO A TERM OF
Controlled substance offense [B] if deemed “illicit trafficking in a controlled substance,” includ-
ing a “drug trafficking crime” as defined in 18 U.S.C. 924(c)
DEFINITION: “Controlled substance” is defined in the federal Controlled Substances

Act at 21 U.S.C. 802(6) to include a drug or other substance, or immediate precursor,
included in the five federal schedules of controlled substances published at 21 U.S.C.
812.
DEFINITION: “Drug trafficking crime” is defined in 18 U.S.C. 924(c) to include “any
felony punishable” under the federal Controlled Substances Act (21 U.S.C. 801 et seq.),
the federal Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the
federal Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.). In general,
the federal Controlled Substances Act punishes, as felonies, drug manufacture or distri-
bution offenses (including offenses involving possession with intent to distribute), AND
simple possession drug offenses when the defendant has a prior drug conviction (which
has become final) or is convicted of possession of more than five grams of cocaine base,
meaning crack cocaine, or of any amount of flunitrazepam.
N.Y. NOTE: For immigration law purposes, the Board of Immigration Appeals has held
that, in cases arising in the Second Circuit, this aggravated felony category includes a
state controlled substance offense that (1) is punishable under the federal Controlled
Substances Act, and (2), regardless of federal classification as a felony or misdemeanor,
is classified as a felony by the convicting state. Matter of Elgendi, 23 I&N Dec. 515 (BIA
2002) (adopting U.S. v. Pornes-Garcia, 171 F.3d 142 (2d Cir.), cert. denied, 528 U.S. 880
(1999), an illegal reentry criminal sentencing case, and declining to follow Aguirre v.
INS, 79 F.3d 315 (2d Cir. 1996), which deferred to an older BIA interpretation) Under the
aggravated felony definition, as interpreted by Matter of Elgendi, this aggravated felony
category includes the following New York offenses:
• NY Criminal Sale of a Controlled Substance and Criminal Sale of Marihuana offenses
classified as felonies;

AGGRAVATED FELONY PRACTICE AIDS, CATEGORIES, OFFENSES, & CASE LAW DETERMINATIONS
• NY Criminal Possession of a Controlled Substance and Criminal Possession of

Marijuana offenses classified as felonies;
• possibly NY Criminal Sale of Marihuana offenses that are classified as misdemeanors
(Note that, for illegal reentry criminal sentencing purposes, the U.S. Court of Appeals
for the Second Circuit has held that this aggravated felony category does include mis-
demeanor sale of marijuana offenses, as well as second-time state misdemeanor pos-
session offenses, see U.S. v. Simpson, 319 F.3d 81 (2d Cir. 2002, as amended through
Feb. 7, 2003), but also note that there may be an argument that such offenses are not
“drug trafficking crimes” by analogy to the federal law treatment of distribution of
marijuana for no remuneration as a misdemeanor rather than as a “drug trafficking
crime” (see 21 U.S.C. 841(b)(4), see Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001));
and
• possibly other NY controlled substance offenses that might be considered “illicit traf-
ficking,” such as Criminally Using Drug Paraphernalia in the first degree or Criminal
Possession of Precursors of Controlled Substances (Note, however, that there may be
an argument that a felony NY Criminal Solicitation or NY Criminal Facilitation of a
controlled substance offense is not an aggravated felony under category [B] because
neither solicitation or facilitation is punishable under the Controlled Substances Act.
See entries for “Criminal Solicitation” and “Criminal Facilitation” in Appendix E).
Under the BIA’s interpretation in Matter of Elgendi, this aggravated felony category does
NOT include any misdemeanor conviction for simple possession of a controlled sub-
stance or marijuana, with or without prior drug convictions, because such an offense is
not a felony under New York law. As noted above, however, the U.S. Court of Appeals
for the Second Circuit has held that, for illegal reentry sentencing purposes, second-time
convictions for misdemeanor simple possession offenses DO constitute aggravated
felonies, see U.S. v. Simpson, 319 F.3d 81 (2d Cir. 2002, as amended through Feb. 7, 2003),
but also note that there may be an argument that such offenses are not “drug trafficking
crimes” by analogy to the federal law treatment of a second simple possession offense as
a misdemeanor rather than as a “drug trafficking crime” if the first offense is not litigat-
ed as part of the criminal proceeding for the second offense (see 21 U.S.C. 844(a); Steele
v. Blackman, 236 F.3d 130 (3d Cir. 2001)).
Whether a particular drug offense is included in this aggravated felony category will, for
some offenses, depend on the jurisdiction in which the immigration case arises. The
BIA has held that the analysis is to be made (1) by reference to the law of the federal
circuit in which the immigration case arises, in those circuits that have interpreted the
phrase “drug trafficking crime” and (2) in those circuits that do not have an interpreta-
tion, by applying the interpretation adopted by the majority of the circuits. See Matter
of Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002). So, for example, a first-time convic-
tion for felony NY Criminal Possession of a Controlled Substance will be deemed an
aggravated felony under this category if the immigration hearing is held in the Second
Circuit, but will be deemed NOT an aggravated felony under this category if the immi-
gration hearing is held in the Third Circuit. Compare Matter of Elgendi, 23 I&N Dec.

APPENDIX C
515 (BIA 2002) (applying Second Circuit law) with Gerbier v. Holmes, 280 F.3d 297 (3d
Cir. 2002) (Third Circuit law).
Counterfeiting offense [R, M] under category [R] IF THE DEFENDANT IS SENTENCED TO A
TERM OF IMPRISONMENT OF AT LEAST ONE YEAR, or under category [M] if the offense
is deemed a “fraud or deceit” offense (see entry below for “Fraud or deceit” offense) and IF
THE LOSS TO THE VICTIM OR VICTIMS EXCEEDS $10,000
Crime of violence [F] as defined in 18 U.S.C. 16 IF THE DEFENDANT IS SENTENCED TO A

TERM OF IMPRISONMENT OF AT LEAST ONE YEAR
DEFINITION: “Crime of violence” is defined in 18 U.S.C. 16 to include “(a) an offense

that has as an element the use, attempted use, or threatened use of physical force against
the person or property of another, or (b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.”
Criminal contempt [F, S], see entry above for “Contempt”
Criminal facilitation, see entry for “Criminal Facilitation” in Appendix E
N.Y. NOTE: There may be an argument that a felony NY Criminal Facilitation of a con-
trolled substance offense is not an aggravated felony under category [B] because facili-
tation is not punishable under the Controlled Substances Act. See entry for “Criminal
Facilitation” in Appendix E.
Criminal mischief [F], see entry below for “Mischief, criminal”
Criminal possession of a controlled substance [B], see entry above for “Controlled substance
offense”
Criminal possession of a weapon [E, F], see entry below for “Weapon, possession”
Criminal possession of marijuana [B], see entry above for “Controlled substance offense”
Criminal possession of precursors of controlled substances [B], see entry above for “Controlled
substance offense”
Criminal possession of stolen property [G], see entry below for “Theft offense”
Criminal sale of a controlled substance [B], see entry above for “Controlled substance offense”
Criminal sale of a firearm [C], see entry below for “Firearm or explosive materials offense”
Criminal sale of marijuana [B], see entry above for “Controlled substance offense”
Criminal solicitation, see entry for “Criminal Solicitation” in Appendix E
N.Y. NOTE: There may be an argument that a felony NY Criminal Solicitation of a con-
trolled substance offense is not an aggravated felony under category [B] because solici-
Solicitation” in Appendix E.

Criminal trespass [F], see entry below for “Trespass”
Criminally using drug paraphernalia [B], see entry above for “Controlled substance offense”
Document fraud offense [P, M] under category [P] if is falsely making, forging, counterfeiting,
mutilating, or altering a passport or instrument in violation of 18 U.S.C. 1543 or is described
in 18 U.S.C. 1546(a), except in the case of a first offense for which the alien has affirmative-
ly shown that the alien committed the offense for the purpose of assisting, abetting, or aiding
only the alien’s spouse, child, or parent (and no other individual) to violate a provision of the
Immigration and Nationality Act IF THE DEFENDANT IS SENTENCED TO A TERM OF
IMPRISONMENT OF AT LEAST 12 MONTHS; or under category [M] if deemed a “fraud or
deceit” offense (see entry below for “Fraud or deceit” offense) and IF THE LOSS TO THE
VICTIM OR VICTIMS EXCEEDS $10,000
Driving under the influence [F], if deemed a “crime of violence” (see entry above for “Crime of
violence”) and IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF
AT LEAST ONE YEAR
Driving while ability impaired by drugs [F], if deemed a “crime of violence” (see entry above
for “Crime of violence”) and IF THE DEFENDANT IS SENTENCED TO A TERM OF
Driving while intoxicated [F], if deemed a “crime of violence” (see entry above for “Crime of
violence”) and IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF
AT LEAST ONE YEAR
Drug paraphernalia, criminally using [B], see entry above for “Controlled substance offense”
Explosive materials offense [C, E, F], see entry below for “Firearm or explosive materials offense”
Facilitation, see entry for “Criminal Facilitation” in Appendix E
N.Y. NOTE: There may be an argument that a felony NY Criminal Facilitation of a con-
trolled substance offense is not an aggravated felony under category [B] because facili-
Facilitation” in Appendix E.
False imprisonment [F], see entry below for “Unlawful imprisonment”
Firearm or explosive materials offense [C, F, E] under category [C] if deemed “illicit traffick-
ing in firearms or destructive devices or in explosive materials;” or under category [F] if
deemed a “crime of violence” (see entry above for “Crime of violence”) and IF THE DEFEN-
DANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR; or
under category [E] if described in 18 U.S.C. 842(h) or (i) or 844(d),(e),(f),(g),(h), or (i) (relat-
ing to explosive materials offenses), 18 U.S.C. 922(g)(1),(2),(3),(4) or (5),(j),(n),(o),(p), or (r)
or 924(b) or (h) (relating to firearms offenses), or in section 5861 of the Internal Revenue Code
of 1986 (relating to firearms offenses)
DEFINITION: “Firearm” is defined in 18 U.S.C. 921(a)(3) to include “(A) any weapon

(including a starter gun) which will or is designed to or may readily be converted to expel

APPENDIX C
a projectile by the action of an explosive; (B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does
not include an antique firearm.”
DEFINITION: “Destructive device” is defined in 18 U.S.C. 921(a)(4) to include “(A)
any explosive, incendiary, or poison gas—(i) bomb, (ii) grenade, (iii) rocket having a
propellant charge of more than four ounces, (iv) missile having an explosive or incendi-
ary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the
devices described in the preceding clauses; (B) any type of weapon (other than a shotgun
or a shotgun shell which the Secretary finds is generally recognized as particularly
suitable for sporting purposes) by whatever name known which will, or which may be
readily converted to, expel a projection by the action of an explosive or other propellant,
and which has any barrel with a bore of more than one-half inch in diameter; and (C) any
combination of parts either designed or intended for use in converting any device into
any destructive device described in subparagraph (A) or (B) and from which a destruc-
tive device may be readily assembled. The term ‘destructive device’ shall not include any
device which is neither designed nor redesigned for use as a weapon; any device,
although originally designed for use as a weapon, which is redesigned for use as a sig-
naling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold,
loaned, or given by the Secretary of the Army pursuant to the provisions of section
4684(2), 4685, or 4686 of title 10; or any other device which the Secretary of the
Treasury finds is not likely to be used as a weapon, is an antique, or is a rifle which the
owner intends to use solely for sporting, recreational, or cultural purposes.”
DEFINITION: “Explosive material” is defined in 18 U.S.C. 841(c) to include “explo-
sives, blasting agents, and detonators.” For specific detailed definitions of “explosives,”
“blasting agents,” and “detonators,” see 18 U.S.C. 841(d),(e), & (f).
N.Y. NOTE: New York firearm offenses that may constitute aggravated felonies include
those covered under category [C] as an “illicit trafficking” offense (e.g., Criminal sale of
a firearm) or under category [F] as a “crime of violence” (any firearm offense that meets
the federal definition of a crime of violence in 18 U.S.C. 16—see entry above for “Crime
of violence”) with a prison sentence of one year or more. It is uncertain to what extent
category [E] includes additional state firearm offenses. In Matter of Vazquez-Muniz, 23
I&N Dec. 207 (BIA 2002), the Board of Immigration Appeals held that category [E] may
cover state analogues to those federal offenses cited in category [E], regardless of
whether the state offense contains the federal jurisdictional element of “affecting inter-
state commerce”. Category [E] might, therefore, be deemed to cover, for example, a con-
viction under N.Y. Penal Law § 265.01(4) for NY Criminal Possession of Weapon By
a Felon.
Forgery offense [R, M] under category [R] IF THE DEFENDANT IS SENTENCED TO A TERM
OF IMPRISONMENT OF AT LEAST ONE YEAR, or under category [M] if the offense is
deemed a “fraud or deceit” offense (see entry below for “Fraud or deceit” offense) and IF THE
LOSS TO THE VICTIM OR VICTIMS EXCEEDS $10,000
Fraud or deceit offense [M] IF THE LOSS TO THE VICTIM OR VICTIMS EXCEEDS $10,000

N.Y. NOTE: An attempted fraud or deceit offense may fall under category U/M if the
attempted loss to the victim or victims exceeds $10,000 (even if there is no actual loss)
Gambling offense [J] described in 18 U.S.C. 1084 (if it is a second or subsequent offense) or in
18 U.S.C. 1955, and FOR WHICH A SENTENCE OF ONE YEAR IMPRISONMENT OR
MORE MAY BE IMPOSED
Grand larceny [G] IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT

OF AT LEAST ONE YEAR
Hindering prosecution [S] if deemed an “obstruction of justice” offense and IF THE DEFEN-
DANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR
Illegal entry offense [O] described in 8 U.S.C. 1325(a) committed by an alien who was previous-
ly deported on the basis of an aggravated felony conviction
Illegal reentry offense [O] described in 8 U.S.C. 1326 committed by an alien who was previously
deported on the basis of an aggravated felony conviction
Kidnapping [F, H] if deemed a “crime of violence” (see entry above for “Crime of violence”) and
IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST
ONE YEAR or if described in 18 U.S.C. 875, 876, 877, or 1202
Larceny, grand [G] IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT
Larceny, petit [G] IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT
OF ONE YEAR
Mail fraud [M] if the offense is deemed a “fraud or deceit” offense (see entry above for “Fraud
or deceit” offense) and IF THE LOSS TO THE VICTIM OR VICTIMS EXCEEDS $10,000
Manslaughter [F], if deemed a “crime of violence” (see entry above for “Crime of violence”) and
IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST
ONE YEAR
Marijuana offense [B], see entry above for “Controlled substance offense”
Menacing [F], if deemed a “crime of violence” (see entry above for “Crime of violence”) and IF
YEAR
Mischief , criminal [F] if deemed a “crime of violence” (see entry above for “Crime of violence”),
and IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST
ONE YEAR
Money laundering offense [D] described in 18 U.S.C. 1956 or 1957 IF THE AMOUNT OF THE
FUNDS EXCEEDED $10,000
Murder [A]
National security offense [L] described in 18 U.S.C. 793 (relating to gathering or transmitting
national defense information), 798 (relating to disclosure of classified information), 2153
(relating to sabotage), 2381 or 2382 (relating to treason), or in 50 U.S.C. 421

APPENDIX C
Obstruction of justice offense [S] IF THE DEFENDANT IS SENTENCED TO A TERM OF

Passport fraud offense [P] described in 18 U.S.C. 1543, except in the case of a first offense for
which the alien has affirmatively shown that the alien committed the offense for the purpose
of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individ-
ual) to violate a provision of the Immigration and Nationality Act IF THE DEFENDANT IS
SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST 12 MONTHS
Peonage or slavery offense [K] described in 18 U.S.C. 1581, 1582, 1583, 1584, 1585, or 1588
Perjury or subornation of perjury [S] IF THE DEFENDANT IS SENTENCED TO A TERM OF
Petit larceny [G] IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF

ONE YEAR
Prostitution-promoting offense [K] if deemed an offense that relates to the owning, controlling,
managing, or supervising of a prostitution business, an offense described in 18 U.S.C. 2421,
2422, or 2433 (relating to transportation for the purpose of prostitution), or an offense
described in 18 U.S.C. 1581, 1582, 1583, 1584, 1585, or 1588 (relating to peonage, slavery,
and involuntary servitude)
Racketeer influenced corrupt organization (RICO) offense [J] described in 18 U.S.C. 1962
FOR WHICH A SENTENCE OF ONE YEAR IMPRISONMENT OR MORE MAY BE
IMPOSED
Ransom offense [H] described in 18 U.S.C. 875, 876, 877, or 1202
Rape [A, F] under category [A] if deemed “rape” or “sexual abuse of a minor;” or under catego-
ry [F] if deemed a “crime of violence” (see entry above for “Crime of violence”) and IF THE
Robbery, [G, F] if deemed a “theft” offense or a “crime of violence” (see entry below for “Crime
of violence”), and IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT
Sexual abuse of a minor [A, F] under category [A] if deemed “rape, or sexual abuse of a minor;”
or under category [F] if deemed a “crime of violence” (see entry above for “Crime of vio-
lence”) and IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF
AT LEAST ONE YEAR
N.Y. NOTE: There may be arguments that a NY Sexual Abuse offense should not be
deemed an aggravated felony if, for example, the record of conviction does not establish
that the victim was under the age of 16 (see discussion in Chapter 5, section 5.5).
Smuggling, alien [N] described in 8 U.S.C. 1324(a)(1)(A) or (2), except in the case of a first
offense for which the alien has affirmatively shown that the alien committed the offense for
the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no
other individual) to violate a provision of the Immigration and Nationality Act

Sodomy [A, F] under category [A] if deemed “rape” or “sexual abuse of a minor;” or under cate-
gory [F] if deemed a “crime of violence” (see entry above for “Crime of violence”) and IF
YEAR
Solicitation, see entry for “Criminal Solicitation” in Appendix E
N.Y. NOTE: There may be an argument that a felony NY Criminal Solicitation of a con-
trolled substance offense is not an aggravated felony under category [B] because solici-
Solicitation” in Appendix E.
Stalking [F] if deemed a “crime of violence” (see entry above for “Crime of violence”) and IF
YEAR
Stolen property, possession [G] if deemed “receipt of stolen property” and IF THE DEFENDANT
IS SENTENCED TO A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR
Tax evasion offense [M] described in section 7201 of the Internal Revenue Code of 1986 IF THE
REVENUE LOSS TO THE GOVERNMENT EXCEEDS $10,000
Terrorism [F, L], under category [F] if deemed a “crime of violence” (see entry above for “Crime
of violence”) and IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT
OF AT LEAST ONE YEAR, or under category L if described in 18 U.S.C. 793 (relating to gath-
ering or transmitting national defense information), 798 (relating to disclosure of classified
information), 2153 (relating to sabotage), 2381 or 2382 (relating to treason), or in 50 U.S.C. 421
Theft offense [G] if deemed a “theft” offense and IF THE DEFENDANT IS SENTENCED TO A
Trespass [F], if deemed a “crime of violence” (see entry above for “Crime of violence”) and IF
YEAR
Unauthorized use of a vehicle [G, F], if deemed a “theft” offense or a “crime of violence” (see
entry above for “Crime of violence”), and IF THE DEFENDANT IS SENTENCED TO A
Unlawful imprisonment [F], if deemed a “crime of violence” (see entry above for “Crime of vio-
AT LEAST ONE YEAR
Vehicle trafficking [R] if offense relating to trafficking in vehicles the identification numbers of
which have been altered and IF THE DEFENDANT IS SENTENCED TO A TERM OF
Vehicular manslaughter [F], if deemed a “crime of violence” (see entry above for “Crime of vio-
AT LEAST ONE YEAR

APPENDIX C
Weapon, Possession [F, E] under category [F] if deemed a “crime of violence” (see entry above
for “Crime of violence”) and IF THE DEFENDANT IS SENTENCED TO A TERM OF
IMPRIS- ONMENT OF AT LEAST ONE YEAR; or under category [E] if described in 18 U.S.C.
922(g)(1),(2),(3),(4) or (5),(j),(n),(o),(p), or (r) or 924(b) or (h), or in section 5861 of the
Internal Revenue Code of 1986 (relating to firearms offenses) (see entry above for “Firearm or
explosive materials offense”)
N.Y. NOTE: New York weapon possession offenses that may constitute aggravated
felonies include those covered under category [F] as a “crime of violence” (any weapon
offense that meets the federal definition of a crime of violence in 18 U.S.C. 16—see entry
above for “Crime of violence”) with a prison sentence of one year or more. It is uncer-
tain to what extent category [E] includes additional state weapon offenses involving
firearms. In Matter of Vazquez-Muniz, 23 I&N Dec. 207 (BIA 2002), the Board of
Immigration Appeals held that category [E] may cover state analogues to those federal
offenses cited in category [E], regardless of whether the state offense contains the federal
jurisdictional element of “affecting interstate commerce”. Category [E] might, therefore,
be deemed to cover, for example, a conviction under N.Y. Penal Law § 265.01(4) for NY
Criminal Possession of Weapon By a Felon.

APPENDIX C-3
Sample Aggravated Felony
Case Law Determinations
NOTE: A determination as to whether an offense falls within the statutory definition of aggra-
vated felony is based on the elements of the offense as described in the relevant state or federal
criminal statute and in the particular individual’s record of conviction. Therefore, an aggravated
felony determination relating to an offense in one jurisdiction and to one particular individual’s
record of conviction may not offer a conclusive answer for an offense of the same name in anoth-
er jurisdiction. In addition, some of the cases collected below interpret the definition of aggravated
felony for illegal reentry criminal sentencing purposes, rather than for immigration law purposes.
In some cases, the definition may be interpreted differently for these different purposes. See, e.g.,
United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.), cert. denied, 528 U.S. 880 (1999) (inter-
preting a “drug trafficking” aggravated felony more broadly for illegal reentry criminal sentencing
purposes than interpreted by the BIA for immigration law purposes). Therefore, the cases collect-
ed below should be used as the starting point rather than as a substitute for legal research on the
particular offense. Capital letter category references under HOLDING are to the relevant subsec-
tion of the statutory definition of “aggravated felony” (see Appendix C-1 and Appendix J).
Basis for
Underlying Holding
Crime Case(s) Conviction plus Notes
Accessory Matter of 18 U.S.C. §3 AF—category S
after Batista-
the fact Hernandez, Note: offense falls under category S only if prison sentence
21 I&N Dec. of at least one year imposed
955 (BIA
1997); Matter
of Espinoza-
Gonzalez,
22 I&N Dec.
889 (BIA
1999)
Alien Matter of 8 U.S.C. NOT AF under category N
smuggling Alvarado- §1325(a)
(aiding and Alvina, MAYBE AF under category O (but only if the alien
abetting 22 I&N Dec. had previously been deported on the basis of an AF
illegal 718 BIA 1999); conviction)
entry) (Rivera-
Sanchez v.
Reno, 198
F.3d 545 (5th
Cir. 1999)
Alien Matter of Ruiz- 8 U.S.C. AF—category N
smuggling Romero, 22 §1324(a)
(transporting I&N Dec. 486 (1)(A)(ii) Exception: in the case of a first offense for which the alien
aliens) (BIA 1999); has affirmatively shown that the alien committed the
U.S. v. Solis- offense for the purpose of assisting, abetting, or aiding
Campozano, only the alien’s spouse, child, or parent.
312 F.3d 164
(5th Cir. 2002); (continued)

APPENDIX C
Basis for
Underlying Holding
U.S. v. Galindo-
Gallego, 244
F.3d 728 (9th
Cir. 2001)
Alien Gavilan-Cuate 8 U.S.C. AF—category N
smuggling v. Yetter, 276 §1324(a)
(conspiracy to F.3d 418 (8th (1)(A)(ii) and Exception: in the case of a first offense for which the alien
transport and Cir. 2002) (iii) has affirmatively shown that the alien committed the
harbor aliens) offense for the purpose of assisting, abetting, or aiding
only the alien’s spouse, child, or parent
Alien Castro- 8 U.S.C. AF—category N
smuggling Expinosa v. §1324(a)
(harboring Ashcroft, (1)(A)(iii) Exception: in the case of a first offense for which the alien
aliens) 257 F.3d 1130 has affirmatively shown that the alien committed the
(9th Cir. 2001); offense for the purpose of assisting, abetting, or aiding
Patel v. only the alien’s spouse, child, or parent
Ashcroft, 294
F.3d 465
(3d Cir. 2002)
Arson Matter of Alaska law AF—category F crime of violence within 18 U.S.C.
Palacios- (1st degree) §16(b)
Pinera, 22
I&N Dec. 434 Note: offense falls under category F only if prison sentence
(BIA 1998) of at least one year imposed
Assault, Matter of Conn. Gen. AF—category F crime of violence within 18 U.S.C.
misdemeanor Martin, 23 I&N Stat. §53a-61 §16(a)*,**
Dec. 491 (BIA (a)(1)
2002) (3d degree) *but not COV within §16(b), which is confined to felony
offenses by its terms, because the offense is a misdemeanor
under state law and, because punishable by a maximum
sentence of one year, is also a misdemeanor for purposes of
federal law
**but see Chrzanoski v. Ashcroft, __ F.3d __, 2003 U.S.
App. LEXIS 7538 (2d Cir. Apr. 22, 2003), below
Note: offense falls under category F only if prison sentence
of at least one year imposed
Assault, Chrzanoski v. Conn. Gen. NOT AF under category F as a crime of violence
misdemeanor Ashcroft, Stat. §53a- within 18 U.S.C. §16(a)*
__ F.3d __, 61(a)(1)
2003 U.S. App. *although subsection (1) of state statute requires proof that
LEXIS 7538 [Note: defendant intentionally caused physical injury to another,
(2d Cir. Apr. identical to it does not have as an element (whether statutorily defined
22, 2003) NYPL or otherwise) that defendant use physical force to cause
§120.00(1) that injury
misdemeanor
assault] Note: because the offense is categorized as a misdemeanor
under state law, it also does not meet the definition of a
crime of violence under §16(b)

Basis for
Underlying Holding
Assault Darius v. INS, N.Y. Penal AF—category F
2002 U.S. Dist. Law
LEXIS 18039 §120.05(2) Note: offense falls under category F only if prison sentence
(S.D.N.Y. 2002) (2d degree) of at least one year imposed
Assault Persaud v. N.Y. Penal NOT AF under category F as crime of violence within
McElroy, 225 Law 18 U.S.C. §16(a)* or §16(b)**
F.Supp. 2d §120.05(6)
420 (S.D.N.Y. (2d degree) *conviction under state statute, while requiring proof of
2002) physical injury, does not require as an element of the
offense that the defendant use physical force to inflict
that injury
**minimal criminal conduct necessary for conviction under
state statute need not be conduct that by its nature presents
a substantial risk that physical force may be used by the
defendant
Assault with U.S. v. Urias- Texas law AF—category F
bodily injury, Escobar, 281 (even though offense is a misdemeanor under state law)
misdemeanor F.3d 165 (5th
Cir.), cert. Note: offense falls under category F only if prison
denied, 122 S. sentence of at least one year imposed
Ct. 2377 (2002)
Assault with a U.S. v. Ceron- Ariz. Rev. Stat. AF—category U/F as attempted crime of violence
deadly Sanchez, 222 §13-1204) §16(a) and §16(b)
weapon/ F.3d 1169 (A)(2) (along
dangerous (9th Cir. 2000) with §§13-100 Note: conviction was based on reckless driving
instrument, & 13-1204
aggravated, (B)) Note: offense falls under category U/F only if prison
attempted sentence of at least one year imposed
Assault with a U.S. v. Ortega- Okl. Stat. Tit. AF—category F crime of violence within both 18
dangerous Garcia, 2001 §645 (1983) U.S.C. §16(a) and §16(b)
weapon U.S. App.
LEXIS 14266 Note: offense falls under category F only if prison sentence
(10th Cir.), of at least one year imposed
cert. denied,
534 U.S. 883
(2001)
Bank fraud, Hussein v. U.S.C. §371 AF—category U/M
conspiracy Ashcroft, 2002 (conspiracy
U.S. Dist. statute) AF—category U/G
LEXIS 16976
(E.D.N.Y. Note: offense falls under category M only if loss to the
2002) victim(s) in excess of $10,000 (but attempted offense, to
fall under category U/M, may not require actual loss, see
Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) under
“Fraud, attempt” infra)
Bank fraud Chang v. INS, U.S. bank MAYBE AF under category M*
307 F.3d 1185 fraud
(9th Cir. 2002) statute *conviction under statute does not ‘facially qualify’ as AF
under category M because covered offenses may include
offenses for which loss to victims is not more than $10,000;
court then looked to the record and held that reliance on the
pre-sentence report for information on amount of loss was
(continued)

APPENDIX C
Basis for
Underlying Holding
improper at least where such information was contradicted
by explicit language in the plea agreement
Note: offense falls under category M only if loss to the vic-
tim(s) in excess of $10,000 (but attempted offense, to fall
under category U/M, may not require actual loss, see
Bank fraud Khalayleh v. 18 U.S.C. AF—category M
INS, 287 F.3d §1344(1)
978 (10th Cir. Note: offense falls under category M only if loss to the vic-
2002) tim(s) in excess of $10,000 (but attempted offense, to fall
Bank larceny U.S. v. Nwene, Unspecified AF—category G theft offense
20 F. Supp.2d
716 (D. N.J. Note: offense falls under category G only if prison sentence
1998), aff’d, of at least one year imposed
213 F.3d 629
(3rd Cir.),
cert. denied,
531 U.S. 864
(2000)
Battery U.S. v. Nev. Rev. Stat. AF—category F (even though offense is not a felony
causing Gonzalez- §200.481 under state law)
substantial Tamariz,
bodily harm, 310 F.3d 1168 Note: offense falls under category F only if prison sentence
gross (9th Cir. 2002) of at least one year imposed
misdemeanor
Burglary, U.S. v. Hidalgo- N.Y. law (3d AF—category U/G
attempted Macias, 300 degree)
F.3d 281 (2d Note: but the court did not analyze whether a conviction
Cir. 2002) for vehicle burglary under New York’s 3rd degree burglary
statute may not be an AF “burglary” offense (cf. Matter of
Perez, 22 I&N Dec. 1325 (BIA 2000) under “Burglary of
vehicle” infra)
Note: offense falls under category G only if prison sentence
of at least one year imposed (in this case, although original
sentence imposed was for less than 1 year, the court held
that a modified 1+ year sentence following probation viola-
tion must be considered the “actual sentence imposed” for
category G AF analysis)
Burglary U.S. v. Borbon- New York law AF—category F
Vasquez, 2000 (2d degree)
U.S. App. Note: offense falls under category F only if prison sentence
LEXIS 31861 of at least one year imposed
(2d Cir. 2000)
(unpub’d
opinion)

Basis for
Underlying Holding
Burglary Rivas v. N.Y. Penal AF—category G as burglary offense
Ashcroft, 2002 Law §140.30
U.S. Dist. (1st degree) Note: offense falls under category G only if prison sentence
(S.D.N.Y.
2002)
Burglary of a U.S. v. Tex. Penal AF—category F
habitation Guardado, 40 Code Ann.
F.3d 102 §30.02 Note: offense falls under category F only if prison sentence
(5th Cir. 1994) of at least one year imposed
Burglary of a U.S. v. Tex. Penal AF—category F as crime of violence under §16(b)
non-residential Rodriguez- Code Ann.
building Guzman, §30.02 Note: offense falls under category F only if prison sentence
56 F.3d 118 of at least one year imposed
(5th Cir. 1995)
Burglary U.S. v. Velasco- Cal. Penal MAYBE AF—category G burglary offense*
Medina, 305 Code §459
F.3d 839 (2d degree) *conviction under statute does not ‘facially qualify’ as a
(9th Cir. 2002) burglary offense under category G because statute encom-
passes conduct that falls outside the generic definition of
burglary, which is the unlawful or unprivileged entry into,
or remaining in, a building or structure with intent to com-
mit a crime; court then held that the charging papers and
abstract of judgment in the record established that defen-
dant’s conviction involved the requisite elements of generic
burglary for purposes of category G
Burglary U.S. v. Cal. Penal MAYBE AF under category G as burglary offense*
Fernandez- Code §459
Cervantes, NOT AF under category G as theft offense**
2001 U.S. App.
LEXIS 15910 *conviction under statute does not ‘facially qualify’ as AF
(9th Cir. 2001) under category G as burglary offense because reaches
(unpub’d conduct that may fall outside the generic definition of
opinion) burglary (e.g. statute criminalizes both lawful and unlawful
entry into a building); court then held that documents in the
record did not indicate whether defendant’s entry was
unlawful as required under the generic burglary definition
**entry with mere intent to commit theft is not a ‘theft
offense’ (cf. Ninth Circuit’s subsequent definition of ‘theft
offense’ in U.S. v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.
2002), infra, at “Theft, petty (with prior)”
Burglary U.S. v. Solis- Cal. Penal AF—category F
Estrada, 1995 Code
U.S. App. §460(1) (1st Note: offense falls under category F only if prison sentence
LEXIS 21024 degree) of at least one year imposed
(9th Cir. 1995)
1995) (unpub’d
opinion)
Burglary of Matter of Perez, Tex. Penal NOT AF under category G as a burglary offense*
vehicle 22 I&N Dec. Code Ann.
1325 (BIA §30.04(a) *vehicle burglary does not fall within the generic definition
2000) of burglary, which is the unlawful or unprivileged entry
(continued)

APPENDIX C
Basis for
Underlying Holding
into, or remaining in, a building or structure with intent to
commit a crime
Note: but court did not reach issue of whether offense may
be an AF under category G as a ‘theft offense’ or under cat-
egory F as a ‘crime of violence’
Burglary of Lopez-Elias v. Tex. Penal AF—category F crime of violence within 18 U.S.C.
vehicle Reno, 209 F.3d Code Ann. §16(b)*
788 (5th Cir. §30.04(a)
2000), cert. NOT AF under category G as either a theft offense or
denied, 531 a burglary offense**
U.S. 1069
(2001) *because vehicle burglary involves “substantial risk’ that
physical force may be used against another’s property
**burglary of vehicle with mere intent to commit theft is
not a theft offense, and vehicle burglary does not fall under
the generic definition of burglary, which is the unlawful or
unprivileged entry into, or remaining in, a building or struc-
ture with intent to commit a crime
Burglary of Solorzano- 720 Ill. Comp. MAYBE AF—category F as crime of violence within
vehicle Patlan v. INS, Stat. 5/19-1(a) 18 U.S.C. §16(b)*
207 F.3d 869
(7th Cir. 2000) NOT AF under category G as a burglary offense**
*statute is divisible because it criminalizes both conduct
that does and conduct that does not involve substantial risk
that physical force may be used; case was remanded so that
IJ may review the charging papers to determine whether
conduct involved substantial risk that physical force may be
used so as to fall under category F
**vehicle burglary does not fall within generic definition of
burglary, which is the unlawful or unprivileged entry into, or
remaining in, a building or structure with intent to commit a
crime
Note: but court did not reach issue of whether offense was
an AF under category G as a ‘theft offense’
Burglary of U.S. v. Alvarez- 720 Ill. Comp. MAYBE AF under category F as crime of violence
vehicle Martinez, 286 Stat. 5/19-1(a) within 18 U.S.C. §16(a)*
F.3d 470 (7th
Cir.), cert. *statute is divisible because it encompasses some conduct
denied, 123 S. that is a crime of violence and some that is not; here the
Ct. 198 (2002) presentence report, which indicated that the vehicle’s doors
were locked and the passenger side window had been pried
open, established the use of physical force against the prop-
erty of another for the offense to fall within §16(a)

Basis for
Underlying Holding
Burglary of U.S. v. Illinois law AF—category U/G as attempted theft offense*
vehicle Martinez-
Garcia, 268 NOT AF under category U/G as attempted burglary
F.3d 460 offense (following Solorzano-Patlan, supra)
(7th Cir. 2001),
cert. denied, *court defined ‘attempt’, for purposes of category U
534 U.S. 1149 analysis, as (i) an intent to commit a crime and (ii) a sub-
2002) substantial step toward its commission; then found that the
information to which defendant had pled guilty established
the necessary intent to commit theft and that a substantial
step (the unlawful entry into the vehicle without consent)
had been taken toward it
Note: offense falls under category U/G only if prison sen-
tence of at least one year imposed
Burglary of U.S. v. Guzman- Texas law AF—category F crime of violence within 18 U.S.C.
vehicle Landeros, 207 §16(b)*
F.3d 1034
(8th Cir. 2000) *court did not reach issue of whether offense was also an
AF under category G
Burglary of Ye v. INS, 214 Cal. Penal NOT AF under category F (entry of a vehicle is not
vehicle F.3d 1128 (9th Code §459 necessarily violent in nature)
Cir. 2000) NOT AF under category G as a burglary offense*
(vehicle burglary does not fall within generic defini-
tion of burglary, which is the unlawful or unprivi-
leged entry into, or remaining in, a building or struc-
ture with intent to commit a crime)
*but court did not reach issue of whether offense was an AF
under category G as a ‘theft offense’
Child abuse, Matter of Colo. Rev. MAYBE AF under category F as crime of violence
criminally Sweetser, 22 Stat. within 18 U.S.C. §16(a)* or 16(b)**
negligent I&N §18-6-401(1)
Dec. 709 (BIA & (7)(a)(II) *Colorado statute is divisible because it encompasses both
1999) offenses that do and offenses that do not include as an ele-
ment ‘the use, attempted use or threatened use of physical
force against the person or property of another’; court then
looked to record of conviction and found that respondent
had been convicted of criminal negligence resulting in
death of his child, and ruled that such criminal negligence
under Colorado law does not include as an element theuse,
attempted use or threatened use of physical force against
the person or property of another such as to fall within cate-
gory AF as a crime of violence as defined in §16(a).
**Colorado statute is divisible because it encompasses both
offenses that may and offenses that may not involve a ‘sub-
stantial risk that physical force against the person or proper-
ty of another may be used in the course of committing the
offense’; court then looked to record of conviction to con-
clude that defendant had been convicted under that portion
of the divisible statute that criminalizes ‘permitting a child
to be unreasonably placed in a situation which poses a
(continued)

APPENDIX C
Basis for
Underlying Holding
threat’, which does not involve a substantial risk that physi-
cal force against the person or property of another may be
used in the course of committing the offense, such as to fall
within category AF as a crime of violence as defined in
§16(b)
Child abuse, U.S. v. Saenz- Utah law AF—category F (even though offense is a mis-
misdemeanor Mendoza, 287 demeanor under state law)
(cruelty toward F.3d 1011
child) (10th Cir.),
cert. denied,
123 S. Ct. 315
(2002)
Child U.S. v. Marin- Washington AF—category U/A (even though offense is a mis-
molestation, Navarette, 244 Law demeanor under state law)
attempted, F.3d 1284 (third degree)
misdemeanor (11th Cir.), cert.
denied, 534
U.S. 941 (2001)
Cocaine [See
“Controlled
Substance”
cases, infra]
Concealment Ramtulla v. Va. Code Ann. AF—category G
of Ashcroft, 301 §18.2-103
merchandise F.3d 202 (4th Note: offense falls under category G only if prison sentence
Cir. 2002) of at least one year imposed
Contempt, Matter of N.Y. Penal AF—category F
criminal Aldabesheh, Law
` 22 I&N §215.51(b)(i) Note: offense falls under category F only if prison sentence
Dec. 983 (1st degree) of at least one year imposed
(BIA 1999)
Contempt, Matter of N.Y. Penal NOT AF under category F
criminal Almonte (BIA Law
Dec. 5, 2001) §215.51(b)(iii)
(unpub’d (1st degree)
opinion)
Controlled Matter of 720 Ill. Comp. AF—category B*
substance, Yanez-Garcia, Stat.
simple 23 I&N Dec. §570/402(c) *A state drug offense constitutes a “drug trafficking crime”
possession 390 (BIA 2002) (classified as under 18 U.S.C. §924(c)(2) if it is punishable under the
of cocaine a felony under federal Controlled Substances Act, the Controlled Sub-
(first or Illinois law) stances Import and Export Act, or the Maritime Drug Law
second Enforcement Act and (ii) a “felony”
conviction) BIA will determine whether a state drug offense constitutes
a “drug trafficking crime” AF under category B (i) by refer-
ence to the law of the circuit in which the immigration case
arose in those circuits that have interpreted “drug traffick-
ing crime” (whether in the civil immigration context or in
the criminal illegal reentry sentencing context) and (ii) in
those circuits that do not have an interpretation, BIA will
apply the interpretation adopted by the majority of the
federal circuit courts

Basis for
Underlying Holding
The majority of the federal circuits have held that a state
drug conviction classified as a felony under state law, even
if punishable only as a misdemeanor under federal law, is a
“felony” for purposes of the “drug trafficking crimes” defi-
nition
Note: This case arose out of the 7th Circuit, which did not
have a published interpretation of “drug trafficking crime,”
so BIA applied the interpretation of the majority of federal
circuits
Note: may, however, be deemed NOT an AF if removal pro-
ceedings held within jurisdiction of federal circuits (e.g.
Third Circuit) that hold state felonies for simple possession
not to be AF—see App. G., section 1.b
Controlled Matter of N.Y. Penal NOT AF under category B*

substance, Elgendi, 23 Law
simple I&N Dec. 515 §221.10 *A state drug offense constitutes a “drug trafficking crime”
possession of (BIA 2002) (CPM, 5th under 18 U.S.C. §924(c)(2) if it is (i) punishable under the
marijuana degree, mis- Controlled Substances Act and (ii) the convicting jurisdic-*
(first or second demeanor) tion classifies the offense as a felony (citing U.S. v. Pornes-
conviction) Garcia, 171 F.3d 142 (2d Cir.), cert. denied, 528 U.S. 880
(1999), infra, and U.S. v. Polanco, 29 F.3d 35 (2d Cir.
1994), and declining to follow Aguirre v. INS, 79 F.3d 315
(2d Cir. 1996), infra)
Here, the offense is not a “drug trafficking crime” AF
because the convicting jurisdiction (NY) classified the
offense as a misdemeanor
Note: Guided by Matter of Yanez, supra, the BIA referenced
Second Circuit law because the case arose in that jurisdiction.
Note: Cf. U.S. v. Simpson, 319 F.3d 81(2d Cir. 2002, as
amended through Feb. 7, 2003) (for illegal reentry sentenc-
ing purposes), infra, under which a second state mis-
demeanor possession offense may be a “drug trafficking
crime” if it is analogous to an offense punishable as a
felony under federal law. Also cf. Aguirre v. INS, 79 F.3d
315 (2d Cir. 1996), infra.
Controlled Matter of Tex. Penal NOT AF under category B*

substance, Santos-Lopez, Code §481.121
simple 23 I&N Dec. (misdemeanor) *A state drug offense constitutes 18 U.S.C. §924(c)(2) if it is
possession 419 (BIA 2002) (i) a “drug trafficking crime” under punishable under the
of marijuana the Controlled Substances Act and (ii) the prosecuting
(first or second jurisdiction classifies the offense as a felony (citing*
conviction) U.S. v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert.
denied, 534 U.S. 935 (2001), infra, and U.S. v. Hinojosa-
Lopez, 130 F.3d 691 (5th Cir. 1997), infra)
Here, the offense is not a “drug trafficking crime” AF
because the prosecuting jurisdiction (TX) classified the
offense as a misdemeanor
Note: Guided by Matter of Yanez, supra, the BIA referenced
Fifth Circuit law because the case arose in that jurisdiction

APPENDIX C
Basis for
Underlying Holding
Controlled U.S. v. R.I. law AF—category B* (for illegal reentry sentencing
substance, Restrepo- (felony) purposes)
simple Aguilar, 74
possession of F.3d 361 (1st *A “drug trafficking crime” is an offense that (i) is punish-
cocaine (first Cir. 1996) able under the CSA (or one of the other two specified
conviction) specified federal statutes) and (ii) is a “felony”
A state drug offense is a “felony” for purposes of the “drug
trafficking crime” definition if the offense is a felony under
the relevant state’s law, even if the offense would be pun-
ishable only as a misdemeanor under federal law
Controlled U.S. v. Cuevas, R.I. law AF—category B*

substance, 75 F.3d 778 (felony)
simple (1st Cir. 1996) *The second state felony possession offense qualifies as
possession a “felony” for purposes of the “drug trafficking crime”
of cocaine definition (citing U.S. v. Forbes, infra, which held a
(first or second second state felony drug possession offense to be a “drug
conviction) trafficking crime” AF because it was punishable as a
felony under federal law)
Regardless of whether the second offense would be punish-
able as a felony under federal law, both the first and the
second offense qualify as “felonies” for purposes of the
“drug trafficking crime” definition because they are felonies
under state law (citing U.S. v. Restrepo, supra)
Note: May, however, be deemed NOT an AF if removal
proceedings held within jurisdiction of federal circuits (e.g.
Controlled U.S. v. Forbes, N.Y. Penal AF—category B*

substance, 16 F.3d 1294 Law §220.09
simple (1st Cir. 1994) (CPCS, 4th *One prior drug conviction turns the state felony simple
possession degree, possession offense into a “felony” for purposes of the
(second felony) “drug trafficking crime” definition since the maximum
conviction) penalty under 21 U.S.C. §844(a) increases to over a year
(making it a felony under federal law).
Moreover, the offense is a felony under the convicting
state’s law so, under the definition of felony in 21 U.S.C.
§802(13), is also a felony under federal law.

Basis for
Underlying Holding
Controlled U.S. v. New Hamp- AF—category B

substance, Gonzalez, shire law (not
possession of 202 F.3d 20 specified
marijuana with (1st Cir. 2000) whether state
intent to sell; misdemeanor
conspiracy to or felony)
possess mari-
juana with
intent to sell
Controlled U.S. v. Gomez- Mass. Gen. NOT AF under category B*
substance, Ortiz, 62 F. Law ch. 94C,
possession Supp.2d 508 §32C(a) *A state misdemeanor drug offense can never be a “felony”
with intent to (Dist. R.I. (misdemeanor) for purposes of whether it is a drug trafficking crime AF,
distribute 1999) even if the same offense is punishable as a felony under
marijuana federal law; the state’s characterization controls
(first *
conviction)
Controlled U.S. v. Pornes- N.Y. Penal AF—category B* (for illegal reentry sentencing
substance, Garcia, 171 Law §220.18 purposes)
simple 142 (2d Cir.), (attempted
possession of cert. denied, CPCS, 1st *An offense is a “drug trafficking crime” AF if it is (i)
cocaine (first 528 U.S. 880 degree, felony) punishable under the Controlled Substances Act and (ii) is a
conviction) (1999) felony under either state or federal law
A prior offense prosecuted as a state law felony satisfies the
“felony” requirement, even though it would have resulted in
a misdemeanor conviction under federal law
Note: The BIA follows Pornes-Garcia in immigration cases
arising out of the Second Circuit, see Matter of Elgendi,
supra
Controlled U.S. v. Simpson, N.Y. Penal AF—category B* (for illegal reentry sentencing
substance, 319 F.3d 81 Law §221.15 purposes)
possession of (2d Cir. 2002, 4th degree
marihuana as amended misdemeanor) *A drug trafficking offense is an AF when it is (i) an offense
(second con- through Feb. 7, and punishable under the Controlled Substances Act and (ii) can
viction); and 2003) be classified as a felony under either state or federal law
sale of N.Y. Penal Here, the misdemeanor possession offense is (i) punishable
marihuana Law §221.40, under the CSA and (ii) because it followed a prior drug
(first (CSM, 4th conviction, was punishable as a felony under federal law
conviction) degree, (pursuant to 21 U.S.C. 844(a)’s sentence enhancement)
misdemeanor) The misdemeanor sale offense is also (i) punishable under
the CSA and (ii) punishable as a felony under federal law
(pursuant to 21 U.S.C. 841(b)(1)(D))
Note: The court offered “no comment on whether such con-
victions constitute ‘aggravated felonies’ for any purpose
other than” the federal Sentencing Guidelines.
Note: Cf. Matter of Elgendi, 23 I&N Dec. 515 (BIA 2002),
supra (holding that, for immigration cases arising out of the
(continued)

APPENDIX C
Basis for
Underlying Holding
Second Circuit, a state drug offense satisfies the “felony”
requirement of the “drug trafficking crime” definition only
if the state classifies the offense as a felony)
Controlled Aguirre v. INS, N.Y. Penal NOT AF under category B
substance, 79 F.3d 315 Law (unless more than 5 grams of crack cocaine or any
simple (2d Cir. 1996) §220.18 amount of flunitrazepam)
possession of (CPCS, 2nd
cocaine, degree, felony) Note: The court deferred to the BIA interpretation of “drug
attempted trafficking crime” in Matter of L-G-, 21 I&N Dec. 89 (BIA
(first 1995), which held that state drug offenses may be con-
conviction) sidered “drug trafficking crime” AFs if they are analogous
to offenses punishable as felonies under the three federal
drug laws referenced in 18 U.S.C. §924(c)(2), regardless of
whether the state offense is classified as a felony or misde-
meanor under state law. Matter of L-G has since been with-
drawn by Matter of Yanez-Garcia, supra, to the extent
inconsistent with it. Moreover, the BIA in Matter of
Elgendi, 23 I&N Dec. 515 (BIA 2002), supra, has stated
that, going forward in immigration cases arising in the
Second Circuit, it will follow the approach of the Second
Circuit on this point in the illegal reentry sentencing con-
text. See U.S. v. Pornes-Garcia, supra
Controlled Gerbier v. 16 Del. Code MAYBE AF under category B*

substance, Holmes, 280 Ann. §4753A
trafficking in F.3d 297 (3rd (a)(2)(a) *A state drug conviction will constitute an AF under cate-
marijuana, Cir. 2002) (felony) gory B if the offense is either (i) a felony under state law and
cocaine, illegal contains a “trafficking” (unlawful trading or dealing) com-
drugs, meth- ponent (the “illicit trafficking route”), or (ii) is punishable
amphetamines, as a felony under the federal Controlled Substances Act
LSD (first or (the “hypothetical federal felony route”).
second drug
Here, the defendant’s conviction was NOT an AF under the
conviction)
“illicit trafficking route” because it lacked the trafficking
component. Although the state offense was labeled “traf-
ficking in” enumerated drugs, it also punished simple pos-
session; the court therefore looked to the plea agreement to
establish that the defendant had been convicted only of
possession, which lacks a “trafficking” element.
The conviction was not an AF under the “hypothetical fed-
eral felony route” because it was not punishable as a felony
under the CSA (maximum term if punished under federal
law would have been one year, a misdemeanor under feder-
al law)**
**A prior drug conviction did not cause the cocaine posses-
sion offense to be punishable as a felony under federal law
(pursuant to 21 U.S.C. §844(a)’s sentencing enhancement),
because the prior conviction was never litigated as part of
the criminal proceeding for the cocaine possession (follow-
ing Steele v. Blackman, infra)
Note: A state felony for simple possession may, however, be
deemed an AF if removal proceedings held within jurisdic-
tion of federal circuits that hold state felonies for simple
possession to be AF—see App. G., section 1.b

Basis for
Underlying Holding
Controlled Steele v. N.Y. Penal NOT AF under category B*
substance, sale Blackman, Law §221.40
of marijuana 130 236 F.3d (CSM 4th *The court applied the same legal standard as set forth in
(first or second (3d Cir. 2001) degree, mis- Gerbier v. Holmes, see supra, to determine whether these
conviction); demeanor); state misdemeanor drug convictions would constitute an AF
& & under category B
possession of N.Y. Penal
marijuana Law §221.05 Each offense was a misdemeanor under state law and,
(first or second (misdemeanor) therefore, not an AF under the “illicit trafficking” approach
conviction) Each offense was not punishable as a felony under federal
law and, therefore, not an AF under the hypothetical federal
felony approach—the elements of the misdemeanor “sale of
marijuana” state offense are met if defendant distributes 30
grams or less of marijuana without remuneration, which
under federal law is treated as simple possession punishable
by a maximum sentence of one year (i.e. a misdemeanor)
The first drug conviction did not cause subsequent misde-
meanor drug offense to be punishable as a felony under
federal law (pursuant to 21 U.S.C. §844(a)’s sentencing
enhancement) because the first conviction was never liti-
gated as part of the criminal proceeding for the subsequent
offense
Controlled U.S. v. Wilson, Va. law AF—category B*
substance, 2003 U.S. App. (felony)
simple LEXIS 616 *The two elements of a “drug trafficking crime” AF are (i)
possession of (4th Cir. 2003) any “felony”, that is (ii) punishable under the Controlled
unknown Substances Act (or one of the other two specified federal
quantity of statutes) *
cocaine (first
conviction) State possession of cocaine offense can constitute a
“felony” within the meaning of the “drug trafficking crime”
definition if it is classified as a felony under the relevant
state’s law, even though the offense would be punishable as
a misdemeanor under federal law
Controlled U.S. v. Wilson, Va. Code Ann. AF—category B*
substance, 1997 U.S. Dist. §18.2-250
simple LEXIS 3442 (felony) *State felony drug possession offense falls under the “drug
possession (E.D. Va. 1997) trafficking crime” definition because possession of cocaine
of cocaine is (i) punishable under the CSA and (ii) a felony under
(second Virginia law. Moreover, as a second possession charge it
conviction) would also have constituted a felony under federal law
(pursuant to 21 U.S.C. 844(a)’s sentence enhancement)
To be a “felony” within the meaning of the “drug traffick-
ing crime” definition, the drug offense must be a felony as
defined by either federal or state law

APPENDIX C
Basis for
Underlying Holding
Controlled U.S. v. Tex. Health & AF—category B*
substance, Hinojosa- Safety Code
simple Lopez, 130 Ann. *A “drug trafficking crime” AF is an offense that (i) is
possession of F.3d 691 §481.121(b)(5) punishable ble under the CSA (or one of the other two
marijuana (5th Cir. 1997) (felony) specified federal statutes) and (ii) is a “felony”
(first
conviction) A state drug offense is a “felony” for purposes of the “drug
trafficking crime” definition if the offense is a felony under
the relevant state’s law, even if the offense would be pun-
ishable only as a misdemeanor under federal law
Controlled U.S. v. Colo. Rev. AF—category B* (explicitly for both immigration
cases Hernandez- Stat. and illegal reentry sentencing cases)
substance, Avalos, §18-18-203;
simple 251 F.3d 505 18-18-405; *A “drug trafficking crime” AF is an offense that (i) is
possession of (5th Cir.), cert. 18-1-105 punishable under the CSA (or one of the other two specified
heroin (first denied, 534 (felony) federal statutes) and (ii) is a “felony” under either state or
conviction) U.S. 935 (2001) federal law (following U.S. v. Hinojosa-Lopez, supra)
The instant offense is a “drug trafficking crime” because it

is (i) punishable under the CSA and (ii) a felony under
Colorado law
Controlled U.S. v. Caicedo- Tex. Health & AF—category B* (following U.S. v. Hinojosa-Lopez,
substance, Cuero, Safety Code supra)
simple 312 F.3d Ann.
possession of 697 (5th Cir. §481.121(b)(3) *A “state jail felony” offense punishable by a term of up to
marijuana 2002) (“state jail two years is in substance a felony under Texas law (despite
(first felony”) any sentence suspension)
conviction)
Fifth Circuit precedent “suggests” that if an offense is
labeled as a felony under state law, it is a “felony” for pur-
poses of whether it is a “drug trafficking crime” AF, even if
the offense is not punishable by imprisonment of more than
one year (citing U.S. v. Hernandez-Avalos, supra, & U.S. v.
Hinojosa-Lopez, supra)**
**These cases “suggest” that the proper definition of
‘felony’ to apply in this context is 21 U.S.C. §802(13),
which asks only whether the state has labeled the crime a
felony. Even assuming that the proper definition to use is
21 U.S.C. §802(44), which defines “felony drug offense” as
one requiring punishment by “imprisonment for more than
one year”, the instant offense is a ‘felony’ because the max-
imum term of imprisonment is 2 years

Basis for
Underlying Holding
Controlled U.S. v. Ill. Rev. Stat. AF—category B*
substance, Santillan 1985 ch.
possession -Garcia, 56 ½, para. *A state drug is a “drug trafficking crime” AF if it is (i)
(cocaine) 2001 U.S. Dist. 1401(b)(2) punishable under the CSA and (ii) qualifies as a felony
with intent to LEXIS 20779 (felony) under either state or federal law; here the offense is
deliver (first (N.D. Ill. punishable under the CSA and qualifies as a felony
conviction) Nov. 14, 2001) under both federal and state law
Controlled U.S. v. Cal. Health & AF—category B*
substance, Haggerty, Safety Code
simple 85 F.3d 403 §1137(a) *A drug offense is a “drug trafficking crime” AF if it is (i)
possession of (8th Cir. 1996) (felony) punishable under the CSA and (ii) a “felony”
metham-
phetamine Here, the offense is a felony under both federal and state
(second law***
conviction)
**Under federal law, an offense is a felony if the maximum
term authorized for the offense is more than one year—
here, a prior drug offense causes the second drug possession
offense to be punishable by more than a year (pursuant to
21 U.S.C. 844(a)’s sentence enhancement). Under state
law, California defines felony as an offense punishable with
death or by imprisonment in the state prison—here, the
offense was punishable by imprisonment in state prison
(that the sentence had been suspended in the instant case
did not change the result)
not to be AF – see App. G., section 1.b
Controlled U.S. v. Briones- Florida law AF—category B*
substance, Mata, 116 F.3d (felony)
purchasing 308 (8th Cir. *A state drug offense can be an AF if the offense is classi-
marijuana 1997) fied as a felony under the relevant state’s law, even if the
(first offense would be punishable only as a misdemeanor under
conviction) federal law
Note: A state felony for simple possession may, however, be
deemed NOT an AF if removal proceedings held within
jurisdiction of federal circuits (e.g. Third Circuit) that hold
state felonies for simple possession not to be AF see App.
G., section 1.b
Controlled U.S. v. Nev. Rev. Stat. AF—category B*
substance, Arellano- §453.336(2)
simple Torres, *A drug offense falls under category B if it is (i) an offense
possession 303 F.3d of “illicit trafficking in a controlled substance” as defined in
(first 1173 (9th Cir. 21 U.S.C. §802, or (ii) a “drug trafficking crime” as
conviction) 2002) defined in 18 U.S.C. §924(c).
A drug offense will fall within the “drug trafficking crime”

definition if it is (i) punishable under the federal Controlled
Substances Act and (ii) a “felony”, i.e. an offense punish-
able by 0more than one year’s imprisonment under applica-
ble state or federal law
(continued)

APPENDIX C
Basis for
Underlying Holding
An offense is punishable under the CSA if the “full range of
conduct encompassed by the statute of conviction” is pun-
ishable by the CSA (citing U.S. v. Rivera-Sanchez, infra). If
the statute of conviction reaches both conduct that would
and conduct that would not be punishable under the CSA,
the court may look beyond the statute to certain documents
or judicially noticeable facts that clearly establish that the
conviction was for an offense punishable under the CSA
Here, the state possession offense was held to be a “drug

trafficking crime” AF because (i) the court assumed** it
was punishable under the CSA and (ii) the offense was pun-
ishable by more than one year’s imprisonment under
Nevada law (a sentence suspension for first-time offenders
does not change the result, because under the Nevada
statute, the prospect of serving the originally imposed sen-
tence “always hangs over the head of a first-time offender”).
Cf. U.S. v. Robles-Rodriguez, infra
**Note: The court assumed that the state offense was pun-
ishable under the CSA (because that issue was not chal-
lenged) and observed that it never reached the issued of
whether a conviction under the statute ‘facially qualifies’ as
an AF under category B (see U.S. v. Rivera-Sanchez, infra)
Controlled U.S. v. Robles- Ariz. Rev. NOT AF under category B*
substance, Rodriguez, 281 Stat. (even though the offense might be labeled as a ‘felony’
simple F.3d 900 (9th §§13-3405(B), under state law)
possession Cir. 2002) 13-3408(B), &
(first or 13-3411(B), *A drug offense is a “drug trafficking crime” AF if it is (i)
second in conjunction punishable under the federal Controlled Substances Act and
conviction) with 13-901.01 (ii) a “felony”.
(which pro-
vides for max- A “felony” for this purpose means an offense punishable
imum sentence by more than one year’s imprisonment under applicable
of probation state or federal law (reading both 21 U.S.C. §802(13),
and drug treat- which defines “felony” as any federal or state offense
ment program classified by applicable federal or state law as a felony,
for non-violent and 21 U.S.C. §802(44), which defines “felony drug
first- and offense” as one requiring punishment by “imprisonment
second-time * more than one year”, together)
for
possession
offenders; Note:
* A simple possession (except for more than 5 grams
second-time of crack cocaine or for any amount of flunitrazepam),
offenders may, whether for a first or subsequent conviction, is not punish-
as a condition able by more than one year’s imprisonment under federal
of probation, law, because possession of an unspecified type and quanti-
have up to one ty of a controlled substance is punishable by up to one
year of jail year in prison under 21 U.S.C. §844(a). See U.S. v.
time imposed) Arellano-Torres, 303 F.3d 1173 (9th Cir. 2002), which
noted that the Ninth Circuit disregards §844’s sentence en-
hancement penalties for repeat offenders (citing U.S. v.
Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), see infra
under “Theft, petty (with or without prior)”). But see

Basis for
Underlying Holding
U.S. v. Garcia-Olmedo, infra, and U.S. v. Zarate-Martinez,
infra (both holding that a second misdemeanor possession
may be AF because punishable as a felony under federal law
Note: may, however, be deemed an AF if removal proceed-
ings held within jurisdiction of federal circuits that hold sec-
ond state convictions for simple possession to be AF, or in
jurisdictions that hold that a state possession offense labeled
as a felony by the state is an AF—see App. G., section 1.b
Controlled U.S. v. Rivera- Cal. Health & MAYBE AF under category B*
substance, Sanchez, 905 Safety Code
marijuana, 247 F.3d §11360(a) *To determine whether a state offense in punishable under
transport, (9th Cir. 2001) the federal Controlled Substances Act, court must determine
import, sell, (en banc) whether the full range of conduct encompassed by the
furnish, state statute is punishable under the CSA
administer,
giver away, or A conviction under this “extremely broad” state statute*
offer to do does not ‘facially qualify’ as AF under category B because
any of above, it reaches both conduct that would and conduct that would*
or give away not be punishable under the CSA (e.g. solicitation punish-*
or attempt to able under the state statute is not an AF under category B,
import or see Leyva-Licea v. INS, infra); case was remanded for a
transport determination of whether other judicially noticeable facts in
the record would establish that the conviction involved the
requisite elements for purposes of category B
Controlled Leyva-Licea v. Ariz. Rev. Stat. NOT AF under category B*
substance, INS, 187 F.3d §§13-1002(A), (even if underlying offense is a drug-trafficking offense)
solicitation to 1147 (9th Cir. 13-3405(A)(2)
possess 1999); see also (B)(5) *because solicitation is not a listed offense under the federal
for sale U.S. v. Rivera- Controlled Substances Act
marijuana Sanchez, 247
F.3d 905 (9th Cir.
2001), supra
Controlled U.S. v. Ibarra- Washington AF—category B* (for illegal eentry sentencing
substance, Galindo, 206 law (felony) purposes
possession of F.3d 1337 (9th
cocaine (first Cir. 2000), cert. *A state drug offense may be a “felony” for purposes
conviction) denied, 531 of the “drug trafficking crime” definition if it is a felony
U.S. 1102 under state law, even if the offense would be punishable
(2001) only as a misdemeanor under federal law.
Note: See U.S. v. Arellano-Torres, supra, and U.S. v. Robles-
Rodriguez, supra, in which the Ninth Circuit requires that a
state drug offense, to be deemed a ‘felony’ under state law,
must be punishable under state law with imprisonment for
more than one year.
Note: may, however, be deemed NOT an AF if removal
Controlled U.S. v. Garcia- Arizona law AF—category B*
substance, Olmedo, 112 (5 grams of
simple F.3d 399 (9th marijuana) *A “drug trafficking AF is an offense that is (i) punishable
possession Cir. 1997); under the CSA and (ii) a “felony”
(second U.S. v. Zarate-
conviction) Martinez, 133 (continued)

APPENDIX C
Basis for
Underlying Holding
133 F.3d 1994 California law A second state conviction for simple possession satisfies the
(9th Cir.), cert. (2.15 grams “felony” requirement because it is punishable as a felony
denied, 525 of cocaine) (imprisonment for more than one year) under federal law
U.S. 849 (21 U.S.C. §844(a). But see U.S. v. Arellano-Torres, 303
(1998) F.3d 1173 (9th Cir. 2002), which noted that second state
simple possessions are not punishable as felonies under
federal law because the Ninth Circuit disregards §844’s sen-
tence enhancement penalties for repeat offenders for pur-
poses of the “felony” requirement
Controlled U.S. v. New York law AF—category B*
substance, Cabrera-Sosa, (felony)
possession of 81 F.3d 998 *To be a “drug trafficking crime” AF, a drug offense must
cocaine (with (10th Cir.), be (i) punishable under the CSA (or one of the other two
or without cert. denied, enumerated statutes) and (ii) a“felony”
intent to 519 U.S.
distribute) 885 (1996) The state offense was a felony within the meaning of the
(first “drug trafficking crime” definition because it was a felony
conviction) under NY law
Note: State felony for simple possession may, however, be
deemed NOT an AF if removal proceedings held within
jurisdiction of federal circuits (e.g. Third Circuit) that hold
not AF—see App. G., section 1.b
Controlled U.S. v. Utah law AF—category B as “illicit trafficking in a controlled
substance, Zamudio, (upon com- substance” as defined in 28 U.S.C. §802
distributing 314 F.3d 517 pliance with
marijuana (10th Cir. the terms of a Note: Defendant’s “Plea in Abeyance” under Utah law was
(first 2002) “Plea in was a “conviction” as defined in the INA because defendant
conviction) Abeyance”, entered a guilty plea and was subjected to a penalty in the
the offense form of a fine
would be
reduced to a
misdemeanor)
Controlled U.S. v. Simon, Florida law AF—category B*
substance, 168 F.3d 1271 (felony)
possession of (11th Cir.), *To be a “drug trafficking crime” AF, a drug offense must
cocaine (first cert. denied, be (i) punishable under the CSA (or one of the other two
conviction) 528 U.S. 844 enumerated statutes) and (ii) a “felony”*
(1999)
Since the state offense is a felony under state law, it quali-
fies as a “felony” for purposes of the “drug trafficking
crime” definition, even though the offense is punishable
only as a misdemeanor under federal law


Basis for
Underlying Holding
Counterfeit Sui v. INS, 250 18 U.S.C. NOT AF under category M*
securities, F.3d 105 §513(a) (there was no actual loss to victims)
possession (2d Cir.
with intent to 2001) NOT AF under category U/M*
deceive (mere possession does not constitute an “attempt”— does
not constitute a substantial step toward creating a loss to
victims of more than $10,000). Cf. Matter of Onyido, 22
I&N Dec. 552 (BIA 1999) under “Fraud, attempt”, infra, for
BIA’s discussion of “attempt” as applied to category U/M
analysis.
*but court did not address issue of whether offense may be
an AF under category R or U/R
Counterfeiting Bazuaye v. INS, U.S. law AF—category M
1997 U.S. Dist.
LEXIS 2996 Note: offense falls under category M only if loss to the vic-
(S.D.N.Y. 1997) tim(s) in excess of $10,000 (but attempted offense, to fall
Counterfeit Albillo- 18 U.S.C. AF—category R*
obligations, Figueroa v. §472
possession INS, 221 Note: offense falls under category R only if prison sentence
F.3d 1070 of at least one year imposed
(9th Cir. 2000)
*court did not reach issue of whether offense may also be
an AF under category M
Counterfeit Wilson v. INS, 18 U.S.C. AF—category U/R*
securities 2001 U.S. Dist. §513(a) and
(conspiracy to LEXIS 19903 18 U.S.C. §371 Note: offense falls under category U/R only if prison sen-
utter and (M.D. Pa. tence of at least one year imposed
possess forged 2001)
& counterfeit *court did not reach issue of whether offense may also be
securities) an AF under category U/M
Death by U.S. v. Alejo- N.C.Gen.Stat. AF—category F
motor Alejo,286 §20 141.4(a)(2)
vehicle, F.3d 711 (4th Note: offense falls under category F only if prison sentence
misdemeanor Cir. 2002) of at least one year imposed
Driving while Matter of Mass. Gen. NOT AF under category F*
intoxicated Ramos, 23 Laws ch. 90,
(operating a I&N Dec. 336 §24(1)(a)(1) *On whether driving under the influence is a crime of vio-
motor vehicle (BIA 2002) lence (i) BIA will follow the law of the circuit in which the
while under immigration case arose in those circuits that have addressed
the influence) the question and (ii) in those circuits that have not yet ruled
on the issue, BIA will require that the elements of the
offense reflect that there is substantial risk that the perpetra-
tor may resort to the use of force to carry out the crime
before the offense is deemed to qualify as a crime of vio-
lence under §16(b) and will require that an offense be com-
mitted at least recklessly to meet this requirement
The First Circuit, in which the present case arose, had not
yet ruled on whether driving under the influence is a crime
of violence, so the BIA applied its own requirements and
(continued)

APPENDIX C
Basis for
Underlying Holding
held that a violation of the Mass. statute is not a crime that,
by its nature, involves a substantial risk that the perpetrator
may use force to carry out the crime: even if there is a risk
that an accident might occur, a conviction for the offense
does not require a showing that the perpetrator intentionally
or volitionally used force against another in the course of
driving under the influence; and no basis exists to conclude
that the perpetrator might have to cause such an accident in
order to carry out his crime (crime is accomplished when
the perpetrator unlawfully drives while under the influence)
Note: may, however, be deemed AF if removal proceedings
held within jurisdiction of federal circuits that have held
DUI to be a crime of violence AF—see App. G, section 1.f),
but only if prison sentence of at least one year imposed
Driving while Matter of Tex. Penal NOT AF under category F
intoxicated Olivares, Code §§49.04
23 I&N Dec. and 49.09 Note: Guided by Chapa-Garza, supra, the BIA followed
148 (BIA 2001) Fifth Circuit law because the immigration case arose in that
circuit
Driving while Dalton v. N.Y. VTL Law NOT AF under category F as crime of violence within
intoxicated Ashcroft, 257 §1192(3) 18 U.S.C. §16(b)*
(with two F.3d 200
prior DWIs, (2d Cir. 2001) *focusing on intrinsic nature of the offense, court held that
a felony) the risk of use of physical force was not an element of the
offense; conviction under statute was possible even where
there was no risk of use of force, and the serious potential
risk of physical injury from an accident did not constitute
likelihood of the intentional employment of physical force
Driving while U.S. v. Chapa- Tex. Penal NOT AF under category F as crime of violence
intoxicated, Garza, Code within 18 U.S.C. §16(b)*, **
felony 243 F.3d 921 Ann. §49.09
(5th Cir. 2001) *a COV as defined by §16(b) must involve the substantial
likelihood that the offender will intentionally employ force
against the person or property of another in order to effectu-
ate the commission of the offense; intentional use of force
is seldom if ever employed to commit the offense of DWI
**but court did not reach issue of whether conviction under
statute may be an AF crime of violence within §16(a), the
language of which is similar to the “crime of violence” def-
inition found in the 2001 Sentencing Guidelines (cf. U.S. v.
Vargas-Duran, 2003 U.S. App. LEXIS 635 (5th Cir. 2003),

Basis for
Underlying Holding
an illegal reentry sentencing enhancement case in which the
Fifth Circuit holds that Intoxication Assault under Tex.
Penal Code Ann. §49.07 is a ‘crime of violence’ as such
term is defined in the 2001 Sentencing Guidelines)
Driving while Bazan-Reyes v. Wisc. Stat. NOT AF under category F as crime of violence within
intoxicated INS, 256 F.3d §940.09; Ind. §16(a)* or 16(b)**
(homicide by 600 (7th Cir. Code §9-30-
intoxicated 2001) 5-3; and 625 *because the word “use” in §16(a) requires volitional conduct
use of vehicle; Ill. Comp. Stat.
operating a 5/11-501(d)(1) **§16(b) is limited to crimes in which the offender is
vehicle while reckless with respect to the risk that intentional physical
intoxicated; force will be used in the course of committing the offense;
driving under here, intentional force is virtually never employed to
the influence, commit any of the offenses for which petitioners were
aggravated) convicted.
Driving while U.S. v. Cal. Vehicle NOT AF under category F as crime of violence within
intoxicated Trinidad- Code 18 U.S.C. §16(a) or 16(b)*
(driving Aquino, 259 §23153
under the F.3d 1140 (9th *although §16(b) encompasses both intentional and reckless
influence with Cir. 2001) conduct, California DUI can be committed by mere negli-
injury to gence and therefore is not a crime of violence under §16(b)
another)
Driving while Montiel- Cal. Vehicle NOT AF under category F (even with prior DUI
intoxicated Barraza v. INS, Code §23152 convictions)
(driving under 275 F.3d 1178 (a) (along with
the influence (9th Cir. 2002); §23175, an Note: may, however, be deemed AF if removal proceedings
(with multiple enhancement held within jurisdiction of federal circuits that have held
priors)) U.S. v. Portillo- provision for DUI to be a crime of violence AF—see App. G, section 1.f),
Mendoza, 273 multiple priors but only if prison sentence of at least one year imposed
F.3d 1224 (9th
Cir. 2001)
Driving while Tapia-Garcia v. Idaho Code AF—category F as crime of violence within 18
intoxicated INS, 237 F.3d §18-8004(5) U.S.C. §16(b)
(driving under 1216 (10th
the influence) Cir. 2001) Note: offense falls under category F only if prison sentence
proceedings held within jurisdiction of federal circuits that
have held DUI not to be a crime of violence AF—see App.
G, section 1.f)
Driving while Le v. U.S. Att. Fla. Stat. Ann. AF—category F crime of violence within 18 U.S.C.
intoxicated Gen., 196 F.3d §§316.193(3) §16(a)*
(driving under 1352 (11th Cir. *because one element of the offense included the actual use
the influence 1999) of physical force; court did not reach issue of whether also
with serious a COV within §16(b)
bodily injury) (continued)

APPENDIX C
Basis for
Underlying Holding
proceedings held within jurisdiction of federal circuits that
have held DUI not to be a crime of violence AF—see App.
G, section 1.f)
Endangerment, U.S. v. Ariz. Rev. Stat. MAYBE AF under category F as crime of violence
felony Hernandez- §13-1201 within 18 U.S.C. §16 (b)*
Castellanos,
287 F.3d 876 *conviction under statute does not ‘facially qualify’ as a
(9th Cir. 2002) COV within §16(b) because not all conduct punishable
under statute would constitute a COV within §16 (b)—
‘substantial risk of imminent death or physical injury’
(language of state statute) is not the same as ‘substantial
risk that physical force . . . may be used’ (required to fall
within §16(b)); in this case, record of conviction did not
establish whether defendant’s conviction was in fact for a
COV within §16(b)
Failure to Barnaby v. Conn. Gen. NOT AF under category T*
appear Reno, 142 F. Stat. §53a-172
before a court Supp.2d 277 *state statute permits conviction for failing to appear ‘when
when legally (D. Conn. legally called’, which is not the same as failing to appear
called 2001) ‘pursuant to a court order’ required to fall within category T
Failure to U.S. v. Mejia, Cal. Penal AF—category T
appear 2000 U.S. App. Code §1320
before a court LEXIS 21765 Note: offense falls under category T only if a prison sen-
(9th Cir. 2000) tence of two or more years may be imposed
(unpub’d
opinion), cert.
denied, 532
U.S. 936 (2001)
False Cortez- Cal. Penal MAYBE AF as crime of violence within 18 U.S.C.
imprisonment Quinonez Code §16(b)*
v. Ashcroft, §§236-37
2002 U.S. App. *conviction under statute, by itself, does not establish COV
LEXIS 6053 because statute reaches both conduct that would constitute
(9th Cir. 2002) a COV and conduct that would not (a person may be con-
(unpub’d victed for false imprisonment by fraud or deceit, as well as
opinion) by violence or menace); here, however, the judgment of
conviction and charging papers established that the defen-
dant was convicted of false imprisonment by violence, and
that the crime was perpetrated with a gun
False Brooks v. Fla. Stat. AF—category F
imprisonment Ashcroft, 283 §787.02
F.3d 1268 Note: offense falls under category F only if prison sentence
(11th Cir. of at least one year imposed
2002)

Basis for
Underlying Holding
False use of a St. John v. 42 U.S.C. AF—category M
social security Ashcroft, 2002 §408(a)(7)(B) (restitution amount ordered to victim may establish
number U.S. App. amount of loss to victim)
LEXIS 14973
(10th Cir. Note: offense falls under category M only if loss to the
2002)(unpub’d victim(s) in excess of $10,000 (but attempted offense, to
opinion); U.S. fall under category U/M, may not require actual loss, see
v. But, 2000 Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) under
U.S. App. “Fraud, attempt” infra)
LEXIS
21489 (9th
Cir. 2000)
(unpub’d
opinion)
Firearms, Matter of Cal. Penal AF—category E(ii)
possession by Vazquez-Muniz, Code (state firearm offense may be ‘described in’ a federal
a felon 23 I&N Dec. §12021(a) statute enumerated under category E, regardless of
207 (BIA whether the state statute includes the jurisdictional
2002); U.S. v. element of “affecting interstate commerce”)
Castillo-Rivera,
244 F.3d 1020
(9th Cir.), cert.
denied, 534
U.S. 931
(2001)
Firearms, con- Kuhali v. Reno, 22 U.S.C. AF—category U/C
spiracy to 266 F.3d 93 §2778;
export without (2d Cir. 2001) 18 U.S.C.
a license §371
Firearms, U.S. v. Powell, 18 U.S.C. AF—category E
possession by 2001 U.S. App. §922(g)(5)
illegal alien LEXIS 21868
(2d Cir. 2001)
(unpub’d
opinion)
Firearms, U.S. v. Tex. Penal NOT AF under category F as crime of violence within
felony Hernandez- Code 18 U.S.C. §16(b)*
possession Neave, 291 §46.02(c)
(unlawfully F.3d 296 *state statute does not require a substantial likelihood that
carrying a (5th Cir. 2001) the perpetrator will intentionally employ physical force
firearm in an against the person or property of another (statute does
establishment require intentional, knowing or reckless carrying of hand-
licensed to gun onto premises, but such intent portion of the crime goes
sell alcoholic to the act of carrying a firearm onto premises, and does
beverages) not go to any supposed intentional force against another’s
person or property), and, further, physical
force against the person or property of another need not be
used to complete the crime (applying Fifth Circuit’s Chapa-
Garza framework (see “Driving while intoxicated” supra)).
Firearms, U.S. v. Rivas- Texas law AF—category F as crime of violence under §16(b)*
unlawful Palacios, *the unlawful possession of any unregistered firearm
possession of 244 F.3d ‘involves a substantial risk that physical force against the
short-barreled 396 (5th person or property of another’ will occur
shotgun Cir. 2001) (continued)

APPENDIX C
Basis for
Underlying Holding
Note: This holding has subsequently been called into ques-
tion by the Fifth Circuit in U.S. v. Hernandez-Neave, 291
F.3d 296 (5th Cir. 2001), supra, as it appears to conflict
with the Chapa-Garza framework for analyzing crime of
violence AFs (see “Driving while intoxicated” supra).
Firearms, U.S. v. Wash. Rev. NOT AF under category E*
possession by Sandoval- Code
non-citizen Barajas, 206 §9.41.170 *conviction under state statute that applies to all non-
without a F.3d 853 citizens is not an offense ‘described in’ the federal statute
license (9th Cir. 2000) enumerated in category E (federal statute applies only to
those illegally in the U.S.)
Firearms, U.S. v. Avila- Nev. Rev. Stat. AF—category U/F
possession of Mercado, 2001 §202.275
short-barreled U.S. App. Note: offense falls under category F only if prison sentence
shotgun LEXIS 13335 of at least one year imposed
(9th Cir.)
(unpub’d
opinion), cert.
denied, U.S.
LEXIS 10704
(2001)
Firearms, U.S. v. Cal. Penal NOT AF under category E*
possession of Villanueva- Code §12020
shotgun Gaxiola, 119 NOT AF under category F as crime of violence
F. Supp.2d within 18 U.S.C. §16(b)**
1185 (D. Kan.
2000) *conviction under state statute that applies to any person is
not an offense ‘described in’ the federal statute enumerated
in category E (federal statute applies only to illegal aliens)
**state statute encompasses misdemeanor offenses and so
cannot fall within §16(b)
Forgery Matter of N.Y. Penal AF—category R
Aldabesheh, 22 Law
I&N Dec. 983 §170.10(2) Note: offense falls under category R only if prison sentence
(BIA 1999) (2nd degree) of at least one year imposed
Forgery U.S. v. Colorado law AF—category R
Johnstone, 251 (class 5
F.3d 281 felony) Note: offense falls under category R only if prison sentence
(1st Cir. 2001) of at least one year imposed
Forgery Drakes v. 11 Del. Code AF—category R
Zimski, 240 §861 (second
F.3d 246 (3rd degree) Note: offense falls under category R only if prison sentence
Fraud, attempt Matter of Ind. Code AF—category U/M*
(submitting Onyido, 22 §35-43-5-4-
false insurance I&N Dec. 552 (10) *even though defendant was not convicted specifically of
claim with (BIA 1999) an offense denominated an “attempt” and even though no
intent to actual loss had occurred—‘attempt’ by its very nature is an
defraud) unsuccessful effort to commit a crime). Under state statute,
conviction for attempted fraud requires proof of intent to

Basis for
Underlying Holding
defraud and that substantial step toward commission of the
fraud occurred; here, record of conviction showed substan-
tial step was taken.
Note: Cf. Sui v. INS, 250 F.3d 105 (2d Cir. 2001) under
“Counterfeit securities, possession”, supra, for Second Cir-
cuit’s discussion of “attempt” as applied to category U/M
analysis.
Note: offense falls under category U/M only if attempted
loss to the victim(s) in excess of $10,000
Fraud Agdachian v. Unspecified AF—category M
(unauthorized INS, 1999 U.S. (based on value of loss specified in plea agreement)
possession of App. LEXIS
access devices 23214 (9th Cir. Note: offense falls under category M only if loss to the
with intent to 1999) (unpub’d victim(s) in excess of $10,000 (but attempted offense, to
defraud) opinion) fall under category U/M, may not require actual loss, see
Fraud and Pena-Rosario 18 U.S.C. AF—category P
misuse v. Reno, 83 §1546(a)
of visas, F. Supp.2d 349 Exception: in the case of a first offense for which the alien
permits and (E.D.N.Y. affirmatively has shown that the alien committed the
other 2000); offense for the purpose of assisting, abetting, or aiding
documents Chukwuezi v. only the alien’s spouse, child, or parent
Ashcroft, 2002
U.S. App. Note: offense falls under category P only if prison sentence
LEXIS 23391 of at least twelve months imposed
(3d Cir. 2002)
(unpub’d
opinion)
Fraudulent tax Abreu-Reyes v. 26 U.S.C. AF—category M
return INS, 292 F.2d §7206(1) (court may look to presentence report to establish
1029 (9th Cir. amount of loss to victim)
2002)
Heroin [See
“Controlled
Substance”
cases, supra]
Hindering U.S. v. Vigil- N.Y. law AF—category S
prosecution Medina, 2002 (1st degree)
U.S. App. Note: offense falls under category S only if prison sentence
(4th Cir. 2002)
(unpub’d
opinion)

APPENDIX C
Basis for
Underlying Holding
Indecency with Matter of Texas Penal AF—category A
a child by Rodriguez- Code
exposure Rodriguez, §21.11(a)(2)
22 I&N Dec.
991 (BIA 1999);
U.S. v. Zavala-
Sustaita, 214
F.3d 601 (5th
Cir.), cert.
denied, 531
U.S. 982 (2000)
Indecency with U.S. v. Tex. Penal AF—category F as crime of violence under §16(b)*
a child by Velazquez- Code
sexual contact Overa, 100 §21.11(a)(1) *when an older person attempted to sexually touch a child,
F.3d 418 there is always a substantial risk that physical force would
(5th Cir. 1996), be used to ensure the child’s compliance
cert. denied,
520 U.S. 1133 Note: offense falls under category F only if prison sentence
(1997) of at least one year imposed
Indecent Emile v. INS, Mass. Gen. AF—category A as sexual abuse of a minor
assault 244 F.3d 183 Laws ch. 265,
and battery (1st Cir. 2000) §1313
on a child
under 14
Indecent Sutherland v. Mass. Gen. AF—category F crime of violence within 18 U.S.C.
assault Reno, 228 F.3d Laws §16(b)*
and battery 171 (2d Cir. ch. 265, §13H
on a person 2000) *non-consent is a necessary element of the offense and,
over 14 therefore, offense involves a substantial risk that physical
force may be used
Indecent Bahar v. N.C. Gen. AF—category A (even if offense does not require
liberties Ashcroft, 264 Stat. 14-202.1 physical contact)
with a child F.3d 1309
(11th Cir. 2001)
Inflicting U.S. v. Jimenez, Cal. Penal AF—category F
corporal 258 F.3d 1120 Code §273.5
injury on (9th Cir. 2001) Note: offense falls under category F only if prison sentence
spouse of at least one year imposed
Injury to a U.S. v. Gracia- Tex. Penal NOT AF under category F as crime of violence within
child, Cantu, 302 F.3d Code Ann. 18 U.S.C. §16(a)* or §16(b)**
felony 308 (5th Cir. §22.04(a)
2002) *because state statute does not require that the perpetrator
actually use, attempt to use, or threaten to use physical
force against a child
**because conviction under statute may stem from an omis-
sion rather than an intentional use of force, the offense is
not, by its nature, a crime of violence within the meaning of
§16(b)
Kidnapping Choeum v. INS, New York law AF—category F
129 F.3d 29
(1st Cir. 1997) Note: offense falls under category F only if prison sentence

Basis for
Underlying Holding
Luring a child U.S. v. 720 Ill. Comp. AF—category F as crime of violence under §16(b)*
under age 16 Martinez- Stat. §5/10-
into vehicle or Jimenez, 5(10) *in illegal reentry context, sentencing court’s ‘aggravated
building for 294 F.3d 921 felony’ enhancement was not ‘clear error’ when conduct
unlawful (7th Cir. 2002) under statute by its nature involves a substantial risk that in
purpose the course of such offense, force may be used against the
young victim
Mail fraud Akorede v. Unspecified AF—category M
Perryman,
U.S. Dist. Note: offense falls under category M only if loss to the
LEXIS 6123 victim(s) in excess of $10,000 (but attempted offense, to
(N.D. Ill. 1999) fall under category U/M, may not require actual loss, see
“Fraud, attempt” supra)
Manslaughter, Matter of Florida law AF—category F
attempted Yeung, I&N
Dec. 610 Note: offense falls under category F only if prison sentence
(BIA 1996) of at least one year imposed
Manslaughter, Matter of Ill. Rev. Stat. AF—category F crime of violence within 18 U.S.C.
involuntary Alcantar, 20 Ch. 38, para. §16(b)*
I&N Dec. 9-3(a)
801 (BIA 1994) *the nature of a crime, as elucidated by its generic ele-
ments, determines whether it is a COV under §16(b); there-
fore the analysis is a categorical approach under which the
BIA looks to the statutory definitions, not to the underlying
circumstances of the crime
Manslaughter Jobson v. N.Y. Penal NOT AF under category F as a crime of violence

Ashcroft, Law within 18 U.S.C. §16(b)*
__ F.3d __, §125.15(1)
2003 U.S. App. (2d degree) *§16(b) requires that an offense inherently pose a sub-
LEXIS 7539 stantial risk that a defendant will use physical force.
(2d Cir. Apr. It also contemplates risk of an intentional use of force.
22, 2003) Neither is an element of the state statute. Applying a cate-
gorical approach, court held that the minimum conduct
required to violate the state statute is not “by its nature” a
crime of violence under §16(b). First, the risk that a defen-
dant will use physical force in the commission of an offense
is ‘materially different’ from the risk that an offense will
result in physical injury (the state statute requires only the
latter). Passive conduct or omissions alone are sufficient for
conviction under state statute. Second, an unintentional
accident caused by recklessness (which would sustain a
conviction under the state statute) cannot properly be said
to involve a substantial risk that a defendant will use physi-
cal force.
Note: But see Matter of Jean, 23 I&N Dec. 373 (Att. Gen.
2002), in which the attorney general questioned, in dicta,
the BIA’s prior determination that offense was not a crime
of violence

APPENDIX C
Basis for
Underlying Holding
Manslaughter, Park v. INS, Cal. Penal AF—category F as crime of violence within 18 U.S.C.
involuntary 252 F.3d 1018 Code §192(b) §16(b)
(9th Cir. 2001)
Marijuana [See
“Controlled
Substance”
cases, supra]
Menacing U.S. v. N.Y. Penal AF—category F
Drummond, Law
240 F.3d 1333 §120.14 Note: offense falls under category F only if prison sentence
(11th Cir. 2001) of at least one year imposed
Mischief, U.S. v. Tex. Penal NOT AF under category F as crime of violence within
criminal Landeros- Code 18 U.S.C. §16(b)*
(intentional Gonzalez, §28.03(a)(3)
marking of 262 F.3d 424 *offense does not involve a substantial risk of force—no
another’s (5th Cir. 2001) substantial risk that a vandal will use “destructive or violent
property) force” in the course of unlawfully “making marks” on
another person’s property
Misprision of Matter of 18 U.S.C. §4 NOT AF under category S
felony Espinoza-
Gonzalez, Note: also should NOT be an AF under category B (even if
22 I&N Dec. underlying offense is a drug-trafficking felony)
889 (BIA 1999)
Money Oyeniyi v. 18 U.S.C. AF under category U/D
laundering, Estrada, 2002 §1956(h)
conspiracy U.S. Dist. Note: offense falls under category U/D only if amount of
LEXIS 17267 funds involved in the transaction exceeds $10,000
(N.D. Texas
2002)
Money Chowdhury v. 18 U.S.C. MAYBE AF under category D*
laundering INS, 249 F.3d §1956(a)(1)
($1,310 check, 970 (9th Cir. (B)(i) *offense falls under category D only if amount of funds
but restitution 2001) involved in the transaction exceeds $10,000—here the
amount amount was only $1,310, and restitution amount is not
ordered relevant to analysis)
to victim had
exceeded
$10,000)
Negligence, Matter of Colo. Rev. MAYBE AF under category F as crime of violence
criminal Sweetser, 22 Stat. within 18 U.S.C. §16(a) or §16(b)*
(criminally I&N Dec. 709 §18-6-401(1)
negligent (BIA 1999) & (7) *For explanatory notes on the holding, see “Child abuse,
child abuse) criminally negligent” supra
Obstructing Matter of Maryland MAYBE AF under category S*
and Joseph, 22 I&N common law
hindering Dec. 799 (BIA *Note: While not squarely addressing the issue, the BIA
1999) noted that the common law state offense is divisible, as it
may encompass obstructing one’s own arrest in addition to
obstructing the arrest of another and, finding that defendant
had been convicted for obstructing his own arrest, stated
that it is substantially unlikely that obstructing and hindering

Basis for
Underlying Holding
one’s own arrest falls within “obstruction of justice” for
purposes of category S
Note: offense falls under category S only if prison sentence
Perjury Matter of Cal. Penal AF—category S (because state law is essentially the
Martinez- Code §118(a) same as the federal perjury statute at 18 U.S.C.
Recinos, 23 §1621)
I&N Dec. 175
(BIA 2001) Note: offense falls under category S only if prison sentence
Petit larceny
[See “Theft,
misdemeanor”
cases, infra]
Rape (statutory Matter of B-, Mar. Ann. AF—category F as crime of violence under §16(b)*
rape) 21 I&N Dec. Code Art. 27,
287 (BIA 1996) §463(a)(3) *whenever an older person attempts to sexually touch a
(2nd degree) child under the age of consent, there is invariably a substan-
tial risk that physical force will be yielded to ensure the
child’s compliance
Rape (statutory Mugalli v. N.Y. Penal AF—category A as sexual abuse of a minor*
rape involving Ashcroft, 258 Law
minor under F.3d 52 (2nd §130.25-2 *even though minor was over the age of sixteen
age 17 but Cir. 2001)
over age 16)
Rape Castro-Baez v. Cal. Penal AF—category A
Reno, 217 F.3d Code
1057 (9th Cir. §261(a)(3)
2000)
Rape U.S. v. Yanez- Wash. Rev. AF—category A
Saucedo, 295 Code
F.3d 991 (9th §9A.44.060
Cir. 2002)
Reckless Amaye v. Del. Code NOT AF under category F as crime of violence under
endangering, Elwood, 2002 Ann. tit. 11, §16(a)* or 16(b)**
misdemeanor U.S. Dist. §603 (2001)
LEXIS 14276 (2d degree) *crime does not include as an element the use, attempted
(Middle Dist. use, or threatened use of physical force against the person
Pa. 2002) or property of another—statute requires only reckless
engagement in conduct which creates a substantial risk of
physical injury to another person, and statute does not men-
tion force at all
. **Where an offense is categorized as a misdemeanor under
state law it does not meet the definition of a crime of vio-
lence under §16(b)
Robbery, U.S. v. N.Y. law (3d AF—category U/G theft & offense*
attempted Fernandez- degree *rejecting defendant’s argument that conviction under the
Antonia, 278 robbery) & attempt” statute, for purposes of category U analysis, falls
F.3d 150 (2d N.Y. Penal short of the “substantial step” requirement under federal law
Cir. 2002) Law §110.00

APPENDIX C
Basis for
Underlying Holding
Robbery Perez v. N.Y. Penal AF—category G
Greiner, 296 Law
F.3d 123 §160.10(1) Note: offense falls under category G only if prison sentence
(2d Cir. 2002) (2d degree) of at least one year imposed
Robbery King v. N.Y. Penal AF—category F as crime of violence under §16(a)
U.S.D.O.J. and Law
INS, §160.15 (1st Note: offense falls under category F only if prison sentence
2002 U.S. Dist. degree) of at least one year imposed
LEXIS 19862
(S.D.N.Y. 2002)
Robbery, Chambers v. Maryland law AF—category F
with a Reno, 307 F.3d
deadly weapon 284 (4th Cir. Note: offense falls under category F only if prison sentence
2002) of at least one year imposed
Robbery U.S. v. Cal. Penal AF—category F as crime of violence under §16(b)*
Valladares, 304 Code §211
F.3d 1300 (8th MAYBE AF under category F as crime of violence
Cir. 2002) within 18 U.S.C. §16(a)**
*robbery achieved through ‘force or fear’ (state statutory lan-
guage) by its nature presents a substantial risk that physical
force against the person or property of another may be used
**state statute encompasses conduct that may or may not
include as an element the use, attempted use, or threatened
use of physical force within the meaning of §16(a); under-
lying record of conviction, however, established that such
an element existed in the instant case (provided a handgun
to a co-defendant who used the gun to rob a pedestrian)
Sexual abuse Matter of Texas Penal AF—category A*
of a minor Rodriguez- Code
(indecency Rodriguez, §21.11(a)(2) *even though physical touching of the victim is not an
with a child 22 I&N Dec. element of the state crime
by exposure) 991 (BIA 1999);
U.S. v. Zavala-
Sustaita, 214 *
F.3d 601 (5th
Cir.) cert.
denied, 531
U.S. 982 (2000)
Sexual abuse Matter of Small, N.Y. Penal AF—category A
of a minor, 23 I&N Dec. Law (even though offense is a misdemeanor under state law)
misdemeanor 448 (BIA 2002) §130.60(2)
NOT AF under category F as crime of violence within
18 U.S.C. §16(a)* or §16(b)**
*offense does not have the element of use of ‘violent or
destructive’ physical force necessary under the law of the
Fifth Circuit (in whose jurisdiction this case arose) to fall
within §16(a) (citing U.S. v. Landeros-Gonzalez, 262 F.3d
424 (5th Cir. 2001), see “Mischief, criminal” supra)

Basis for
Underlying Holding
**offense is not a felony as required to fall within COV
definition at 18 U.S.C. §16(b)
Note: BIA follows the law of the Fifth Circuit in this case
because the case arose out of the Fifth Circuit
Sexual abuse Emile v. INS, Mass. Gen. AF—category A
of a minor 244 F.3d 183 Laws ch. 265,
(indecent (1st Cir. 2000) §1313
assault and
battery on a
child under 14)
Sexual abuse U.S. v. Tex. Penal AF—category F as crime of violence under §16(b)*
of a minor Velazquez- Code
(indecency Overa, 100 §21.11(a)(1) *when an older person attempts to sexually touch a child,
with a child F.3d 418 (5th there is always a substantial risk that physical force would
sexual Cir. 1996), cert. be used to ensure the child’s compliance
contact) denied, 520
U.S. 1133 Note: offense falls under category F only if prison sentence
Sexual abuse U.S. v. Ky. Rev. Stat. AF—category A
of a minor, Gonzales-Vela, Ann. (even though offense is a misdemeanor under state law)
misdemeanor 276 F.3d §510.120(1)
763 (6th Cir.
2001)
Sexual abuse Guerrero- 720 Ill. Comp. F—category A

of a minor, Perez v. INS, Stat. 5/12-15 (even though offense is a misdemeanor under state law)
misdemeanor 242 F.3d 727 (c)
(7th Cir. 2001)
Sexual abuse U.S. v. Code of Iowa AF—category F as crime of violence under §16(b)*
of a minor Rodriguez, 979 §709.8
(lascivious acts F.2d 138 (8th *the crime by its nature involves a substantial risk of
with a child) Cir. 1992) physical force
Sexual abuse U.S. v. Reyes- Utah Code AF—category F as crime of violence under §16(b)*
of a child, Castro, 13 F.3d Ann.
attempted, 377 (10th Cir. §76-5-404.1(1) *when an older person attempts to sexually touch a child
felony 1993) (1990) under the age of fourteen, there is always a substantial risk
that physical force will be used to ensure the child’s com-
pliance
Sexual abuse Bahar v. N.C. Gen. AF—category A
of a minor Ashcroft, Stat. 14-202.1 (even if offense does not require physical contact)
(indecent 264 F.3d 1309
liberties with 1309 (11th Cir.
a child) 2001)

APPENDIX C
Basis for
Underlying Holding
Sexual assault U.S. v. Fla. Stat. Ann. AF—category A
(lewd assault) Londono- §800.04 (if there was physical contact with victim)
on a child Quintero, (1994)
289 F.3d 147 Note: court did not answer question of whether a non-
physical contact offense under the statute may also fall
under category A, but looked to the charging documents to
determine that in the instant case the petitioner did have
physical contact with the victim
Sexual assault Lara-Ruiz v. Ill. Rev. Stat. MAYBE AF under category A
INS, 241 F.3d 1991, ch. 38,
934 (7th Cir. §§12-13(a)(1) *state statute covered conduct that is sexual abuse of a
2001) & 12-13(a)(2) minor and conduct that is not; record of conviction, how-
ever, established that victim was a four year old
Sexual assault Xiong v. INS, Wis. Stat. NOT AF under category F*
of a child 173 F.3d 601 §948.02(2) (because consensual sex precluded finding of a “crime
(statutory (7th Cir. 1999) of violence,” absent substantial age difference)
rape) *but court did not reach issue of whether offense was
“sexual abuse of a minor” under category A
Sexual assault U.S. v. Alas- Neb. Rev. Stat. AF—category F crime of violence within 18 U.S.C.
of a child Castro, 184 §28–320.01 §16(b)*
F.3d 812 (8th
Cir. 1999) *there is ‘substantial risk’ that force may be used, even if
no force actually is used
Sexual assault U.S. v. N.J. Stat. Ann. NOT AF under category A or F
(consensual Navarro- §2C:14-2a(3) (statute permits conviction for consensual sexual pene-
sexual Elizondo, 2000 tration which is neither category A ‘rape’ nor category F
penetration) U.S. App. ‘crime ofviolence’)
LEXIS 7215
(9th Cir. 2000)
(unpub’d
opinion)
Sexual assault U.S. v. Fla. Stat. Ann. AF—category A
(lewd assault) Padilla-Reyes, §800.04 (regardless of whether there was physical contact with
on a child 247 F.3d 1158 (1987) victim)
(11th Cir.), cert.
denied, 534
U.S. 913 (2001)
Sexual assault Ramsey v. INS, Florida AF—category F
(lewd assault 55 F.3d 580 Statutes
on a child), (11th Cir. §§777.04(1) Note: offense falls under category F only if prison sentence
attempted 1995) & 800.04(1) of at least one year imposed
Sexual battery, Wireko v. Reno, Va. Code AF—category F
misdemeanor 211 F.3d 833 §18.2-67.4 (even though offense is a misdemeanor under state law)
(4th Cir. 2000)

Basis for
Underlying Holding
Sexual U.S. v. Baron- Cal. Penal AF—category A as sexual abuse of a minor
behavior Medina, 187 Code
(lewd F.3d 1144 §288(a)
behavior) (9th Cir. 1999),
with individual cert. denied, 531
14 or under U.S. 116 (2001)
Simple U.S. v. Pacheco, R.I. law AF—category F crime of violence within 18 U.S.C.
domestic 225 F.3d 148 §16(a)
assault, (2d Cir. 2000), (even though offense is a misdemeanor under state law)
misdemeanor cert. denied,
533 U.S. 904 Note: offense falls under category F only if prison sentence
Solicitation to Leyva-Licea v. Ariz. Rev. Stat. NOT AF under category B*
possess mari- INS, 187 F.3d §§13-1002(A) (even if underlying offense is a drug-trafficking
juana for sale 1147 (9th Cir. 13-3405(A)(2) offense)
1999); see also (B)(5)
U.S. v. Rivera- *because solicitation is not a listed offense under the
Sanchez, 247 federal Controlled Substances Act
F.3d 905 (9th
Cir. 2001),
supra, under
“Controlled
Substances”
Stolen mail, Randhawa v. 18 U.S.C. AF—category G theft offense
possession Ashcroft, 298 §1708
F.3d 1148 (9th Note: offense falls under category G only if prison sentence
Stolen Matter of Nev. Rev. Stat. AF—category U/G theft offense
property, Bahta, 22 I&N §§193.330 and
possession, Dec. 1381 205.275 Note: BIA reads the ‘receipt of stolen property’ parenthetical
attempted (BIA 2000) in the theft offense provision broadly to include categories
of offenses involving knowing receipt, possession or reten-
tion of property from the rightful owner
Stolen Williams v. N.Y. Penal AF—category G theft offense
property, INS, 2002 U.S. Law §165.40
possession App. LEXIS Note: offense falls under category G only if prison sentence
25126 (3rd Cir. of at least one year imposed
2002)
(unpub’d op.)
Stolen vehicle, Hernandez- 625 Ill. Comp. AF—category G theft offense*
possession Mancilla v. Stat. 5/4-103
INS, 246 F.3d (a)(1) *court defines “theft offense” as a taking of property or
1002 (7th Cir. exercise of control over property without consent with
2001) criminal intent to deprive owner of rights and benefits of
ownership, even if such deprivation is less than total or
permanent

APPENDIX C
Basis for
Underlying Holding
Stolen vehicle, Huerta- Ariz. Rev. Stat. MAYBE AF under category G as theft offense*
possession Guevara v. §13-1802
Ashcroft, 312 *Conviction under Arizona statute does not ‘facially qualify’
F.3d 883 (9th as a theft offense (as generically defined in Corona-Sanchez,
Cir. 2003) infra); statute is divisible, subparts of which do not require
intent (definition of theft requires intent), and the statute
prohibits, among other things, theft of services and aiding
and abetting theft (which do not fall within definition of
theft); judgment of conviction, the only document submit-
ted to the immigration court, did not otherwise establish
defendant’s offense to fall within definition of theft
Stolen vehicle, U.S. v. Utah Code AF—category G theft offense*
receiving or Vasquez-Flores, Ann.
transferring, 265 F.3d 1122 §41-1a-1316 *court defines “theft offense” as a taking of property or
attempted (10th Cir.), exercise of control over property without consent with
cert. denied, criminal intent to deprive owner of rights and benefits of
534 U.S. 1165 ownership, even if such deprivation is less than total or
(2001) permanent
Tax evasion, Evangelista v. 26 U.S.C. AF—category M(ii)
attempted Ashcroft, 2002 §7201
U.S. Dist. Note: offense falls under category M(ii) only if revenue loss
LEXIS 22999 to the government is in excess of $10,000 (but attempted
(E.D.N.Y. offense, to fall under category U/M, may not require actual
2002) loss, see Matter of Onyido, 22 I&N Dec. 552 (BIA 1999)
under “Fraud, attempt” infra)
Terrorism Matter of S-S-, Iowa Code AF—category F
21 I&N Dec. Annotated
900 (BIA 1997) §708.6 Note: offense falls under category F only if prison sentence
Terrorist Bovkun v. Pa. [Cons. AF—category F as crime of violence under §16(a)
Threats Ashcroft, 283 Stat.] §2706
F.3d 166 (3rd (1998) Note: offense falls under category F only if prison sentence
Cir. 2002) (subsequent of at least one year imposed
amendment
redesignated
language of
1998 text as
§2706(a),
subsections (1)
through (3))
Theft, U.S. v. Rhode Island AF—category G theft offense
misdemeanor Pacheco, 225 statutes (even though offense is a misdemeanor under state law)
(shoplifting; F.3d 148
larceny under (2d Cir. 2000), Note: offense falls under category G only if prison sentence
$500) cert. denied,
533 U.S. 904
(2001)

Basis for
Underlying Holding
Theft, U.S. v. Graham, N.Y. Penal AF—category G theft offense
misdemeanor 169 F.3d 787 Law §155.25 (even though offense is a misdemeanor under state law)
(petit larceny (3d Cir.), cert.
with maximum denied, 528 Note: offense falls under category G only if prison sentence
1 year prison U.S. 845 1999); of at least one year imposed
sentence) Jaafar v. INS,
77 F.Supp.2d
360 (W.D.N.Y.
1999)
Theft, Erewele v. Reno, Illinois law AF—category G theft offense
misdemeanor 2000 U.S. Dist. (even though offense is a misdemeanor under state law)
(shoplifting) LEXIS 11765
(N.D. Ill. 2000) Note: offense falls under category G only if prison sentence
Theft, U.S. v. Corona- Cal. Penal MAYBE AF under category G as theft offense*
misdemeanor Sanchez, 291 Code §484(a) (even though offense may be a misdemeanor under state
(petty theft F.3d 1201 (9th (along with` law)
with or Cir. 2002) §§488 & 666)
without prior) *court defines “theft offense” as a taking of property or
exercise of control over property without consent with
criminal intent to deprive owner of rights and benefits of
ownership, even if such deprivation is less than total or per-
manent
*conviction under §484(a) does not ‘facially qualify’ as a
theft offense under category G because statute might cover
conduct outside the generic definition of theft, such as aid-
ing and abetting theft, conduct that neither takes nor exer-
cises control over property, theft of labor, and solicitation of
false credit reporting; court then found insufficient evidence
in the record to otherwise establish that the offense consti-
tuted generic theft
of at least one year imposed (in this case, the court held that
defendant’s sentence of at least 1 year did NOT satisfy the
sentence requirement of category G because the 1 year sen-
tence had been imposed only as part of a sentence enhance-
ment feature for defendants with priors
Theft, U.S. v. Florida law AF—category G theft offense
misdemeanor Christopher, (unspecified) (even though offense is a misdemeanor under state law)
(theft by 239 F.3d 1191
shoplifting) (11th Cir.), Note: offense falls under category G only if prison sentence
cert. denied, of at least one year imposed
534 U.S. 877
(2001)
Theft of auto U.S. v. Cal. Penal MAYBE AF under category G as theft offense*
Rodriguez- Code
Lopez, 2002 §484 (a) *conviction under statute does not ‘facially qualify’ as a
U.S. App. (along with theft offense under category G because statute permitted
LEXIS 23861 §487(b)(3)) conviction for aiding and abetting theft and for conduct
(9th Cir. 2002) that neither took nor exercised control over the property;
(unpub’d op.) court then found that nothing in the record unequivocally
indicated that the defendant’s actual conduct came within
the generic definition of theft.
(continued)

APPENDIX C
Basis for
Underlying Holding
Theft, Valansi v. 18 U.S.C. MAYBE AF under category M*
embezzlement Ashcroft, 278 §656
or misapplica- F.3d 203 (3d. *statute is divisible because crime does not necessarily
tion by bank Cir. 2002) involve intent to defraud or deceive—may instead involve
officer or intent to injure; court looked to the record and found it
employee inconclusive as to whether defendant acted with intent to
(embezzlement defraud; held that defendant’s conviction was not an AF
of bank funds) under category M
“Fraud, attempt” supra)
Theft, Moore v. 18 U.S.C. AF—category M
embezzlement Ashcroft, §656 (the crime necessarily involves fraud or deceit)
or misapplica- 251 F.3d 919
tion by bank (11th Cir. 2001) Note: offense falls under category M only if loss to the vic-
officer or tim(s) in excess of $10,000 (but attempted offense, to fall
employee (mis- under category U/M, may not require actual loss, see
application Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) under
of auction “Fraud, attempt” supra))
drafts)
Theft of retail, U.S. v. Garcia- Utah law AF—category G
felony (inde- Armenta, 2002
terminate U.S. App. Note: offense falls under category G only if prison sentence
sentence LEXIS 1726 of at least one year imposed (in this case, the court held
of 0–5 years) (10th Cir. that defendant’s indeterminate sentence of 0–5 years
2002) (unpub’d would, for purposes of the requirement of category G, be
opinion) considered a definite sentence for the possible 5 year maxi-
mum period of incarceration)
Trespass, U.S. v. Colo. Rev. AF—category F as crime of violence with 18 U.S.C.
criminal Delgado- Stat. Ann. §16(b)*
Enriquez, §18-4-502
188 F.3d 592 (1st degree) *statute requires entering or remaining in dwelling of
(5th Cir. 1999) another, which creates a substantial risk that physical force
would be used against the residents in the dwelling
Unauthorized U.S. v. Galvan- Texas law AF—category F as crime of violence under §16(b)*
use of a motor Rodriguez, 169
vehicle F.3d 217 (5th *offense carries a ‘substantial risk’ that the vehicle might be
Cir.), cert. broken into, stripped, or vandalized, or that it might
denied, 528 become involved in an accident, resulting not only in
U.S. 837 damage to the vehicle and other property, but in personal
(1999) injuries to innocent victims as well**
Note: the Fifth Circuit subsequently limited the holding in
this case ‘to its property aspects’, among other things (see
U.S. v. Charles, 301 F.3d 309 (5th Cir. 2002))

Basis for
Underlying Holding
Unlawful Matter of Cal. Vehicle AF—category G theft offense*
driving V-Z-S, 22 I&N Code
or taking of Dec. 1338 §10851 *A taking of property constitutes a theft offense within
vehicle 1338 (BIA category G whenever there is criminal intent to deprive the
2000) owner of the rights and benefits of ownership, even if such
deprivation is less than total or permanent; not all taking,
however, will meet this standard because some takings
entail a de minimis deprivation
Unlawful U.S. v. Cruz- Cal. Vehicle NOT AF under category F
driving Mandujano, Code §10851 (following Ye v. INS, see “Burglary of vehicle”, supra)
or taking of 2002 U.S. App.
vehicle LEXIS 24417 MAYBE AF under category G as theft offense*
(9th Cir. 2002)
(unpub’d *statute is broader than the generic definition of theft in that
opinion) it permitted conviction for aiding and abetting; there was
insufficient information in the record to determine whether
defendant was in fact convicted of generic theft.
Unlawful use U.S. v. Perez- Ariz. Rev. MAYBE AF under category G*
of means of Corona, 295 Stat. §13-1803
transportation F.3d 996 (9th *not all conduct penalized under statute falls within the
Cir. 2002) generic definition of theft, because intent to deprive the
owner of use or possession is not an element of the offense;
in this case, no judicially noticeable facts existed in the
record regarding circumstances of defendant’s conviction to
determine if his conduct constituted a theft offense
Vehicular Francis v. Reno, 75 Pa.C.S.A. NOT AF under category F under either §16(a) or
homicide 269 F.3d 162 §3732** §16(b)*
(misdemeanor (3rd Cir. 2001)
conviction *state vehicular homicide statute at the time of conviction
with one year in 1993 was categorized as a misdemeanor under state law.
sentence) Where an offense is categorized as a misdemeanor under
state law, it does not meet the definition of a crime of vio-
lence under §16(b). Even if state misdemeanors may be
included under §16(b), conviction under state vehicular
homicide statute still does not fall under crime of violence
definition at §16(b) because statute required proof of crimi-
nal negligence only (unintentional conduct), not recklessness
Note: In 2000, the Pennsylvania Legislature amended 75
Pa. C. S. A. S 3732 by substituting ‘recklessly or with gross
negligence’ for ‘unintentionally’ and increased the offense
from a misdemeanor of the first degree to a felony of the
third degree
Vehicular U.S. v. Santana- Ind. Code Ann. AF—category F as crime of violence under both 18
homicide Garcia, 2000 §9-30-5-5(a) U.S.C. §16(a) and §16(b)
(operating a U.S. App.
motor vehicle LEXIS 7285
while intoxi- (6th Cir. 2000)
resulting in (unpub’d
the death of opinion)
another)

APPENDIX C
Basis for
Underlying Holding
Vehicular Bazan-Reyes v. Wisc. Stat. NOT AF under category F as crime of violence
homicide INS, 256 F.3d §940.09 within §16(a)* or 16(b)**
(homicide by 600 (7th Cir.
intoxicated use 2001) *because the word “use” in §16(a) requires volitional con-
of vehicle) duct
**intentional force is virtually never employed to commit
any of the offenses for which petitioners were convicted;
§16(b) is limited to crimes in which the offender is reckless
with respect to the risk that intentional physical force will
be used in the course of committing the offense.
DUI to be a crime of violence AF – see App. G, section 1.f),
Vehicular Omar v. INS, Minn. Stat. AF—category F as crime of violence under §16(b)*
homicide 298 F.3d 710 §609.21, subd.
(criminal (8th Cir. 2002) 1(4) *§16(b) does not state that intent is an element or that use
vehicular of physical force must be intentional or even that force will
homicide be involved in the commission of the offense; analysis
while having turns on whether an offense carries a substantial risk that
an alcohol its commission may involve the application of physical
concentration force against a person or property, rather than a substantial
of 0.10 or tial risk that force will be used
more)

the strengthening of re-entry sup-
port so that the odds of recidivism
and return to the system are min-
imized. Some of this advocacy
centers on easing the restrictions
that frequently accompany a con-
viction such as housing bans,
placement on public registries,
and employment barriers. Less
attention has been paid to the
consequences that accompany a
juvenile conviction, but young
people also face system-imposed
obstacles to success based on a
delinquent or criminal record.
This article explores areas in
need of attention and reform so
that young people who have been
adjudicated delinquent or con-
victed of a crime are not pun-
ished subsequently by other sys-
tems they encounter. The
informed defense attorney is in
an ideal position to ensure that
clients are not subjected to
unwarranted collateral conse-
quences.
Overview of
The Juvenile
Offender Population
Two million juveniles are
arrested each year,1 and the collat-
eral consequences they could face
begin at this first point of contact
with the system, regardless of
whether charges are subsequently
applied and the individuals are
convicted. Juveniles are processed
either in the juvenile court system
(66 percent) or the criminal court
system (10 percent). The remaining arrests are handled by
Addressing the Collateral the enforcement agencies and formal charges are not
made. Approximately 1.6 million cases are heard in juve-
Consequences of nile courts each year2 and about 250,000 cases are
processed in the adult court.3 Each year approximately
Convictions for 200,000 young people under the age of 25 exit formal cus-
tody of the juvenile justice system4 and an estimated
10,000 people under 25 leave the adult criminal justice
Young Offenders system.5
Juveniles and young adults who become delinquent
are handled by the system during a key developmental
phase of adolescence. Often lacking the necessary skills
to cope with adult responsibilities when they are
released, many youth face unemployment, school re-
eople exiting the custody of the criminal justice sys- enrollment challenges, and homelessness. Plans are
P tem encounter substantial challenges in gaining

employment, finding housing, and accessing med-
ical and mental health care. A popular area of focus
rarely in place to support youth as they attempt to move
past their convictions. Moreover, youth are frequently
unaware of the consequences of their actions within the
among advocates, practitioners, law enforcement, and court system; a guilty plea, for instance, may be offered
right-minded policymakers over the past decade has been to expedite the process but may be accompanied by an
BY ASHLEY NELLIS
20 W W W. N A C D L . O R G THE CHAMPION
assortment of problems in later years. The Supreme Court ruled that criminal ing these legal safeguards would move the
Youth who have been transferred to defense attorneys must warn their clients juvenile court more in the direction of
the adult system face additional prob- of a potential deportation if they plead the adult court proceedings, but still
lems. Juveniles incarcerated in adult facil- guilty and are not U.S. citizens. This case emphasized the importance of protecting
ities are 30 percent more likely to be rear- raises the important issue of whether and youth from the stigma of being labeled as
rested than those retained in the juvenile how clients should be notified of collater- a criminal.
justice system, both sooner and for more al consequences of a conviction.
serious offenses.6 Incarcerated juveniles One of the important benefits
receive significantly less access to age- Original Intent of the of the special juvenile court
appropriate rehabilitative, educational, or procedures is that they avoid
vocational services than they would in the
Juvenile Justice System classifying the juvenile as a
juvenile justice system. This sets them up The juvenile justice system was creat- “criminal.” The juvenile offend-
for failure upon release. Additionally, ed in the late 19th century out of a socie- er is now classified as a “delin-
C O L L AT E R A L C O N S E Q U E N C E S F O R Y O U N G O F F E N D E R S
programs offered in the adult system are tal desire to handle juvenile matters in a quent.” There is, of course, no
not structured for juveniles, and correc- separate, less formal system that could reason why this should not con-
tional officers are often not aware of correct misbehavior and place wayward tinue. … It is also emphasized
developmental differences between adults youth back on track. Until that time, juve- that, in practically all jurisdic-
and youth, who require specialized han- niles were processed in the adult court tions, statutes provide that an
dling and treatment. As a result, youth system and received the same sanctions as adjudication of the child as
housed in adult facilities and released as adults. It became clear over time that delinquent shall not operate as
young adults exhibit more negative out- young people were not handled appro- a civil disability or disqualify
comes than if they had been held in a priately in the adult criminal justice sys- him for civil service appoint-
juvenile facility.7 tem, and a separate system of justice ment. There is no reason why
When a juvenile is transferred to the exclusively for juveniles was necessary. application of due process
adult court, the juvenile’s rights and pro- The philosophical beginnings of the requirements should interfere
tections are the same as an adult’s. The juvenile justice system rested on the with such provisions.[13]
collateral consequences of a criminal notion that young people who become
conviction for a young person are no dif- delinquent were amenable to reform and The Supreme Court emphasized the
ferent than they are for adults. In addition the system should respond by providing importance of keeping youth matters out
to the problems mentioned above, the ample rehabilitation services. It was also of the public eye in its 1971 ruling that
young offender may have a permanent emphasized that youth should be spared juveniles do not have a right to a trial by
criminal record, lose the right to vote, and from the stigma of involvement with the jury. One reason for reaching this conclu-
face deportation. adult criminal justice system and not be sion, the Court opined, is that such jury
While record expungement is possi- branded as “criminals.” Proceedings in trials might bring publicity that could
ble in many cases that are retained in the the juvenile justice system were to be negatively affect the youth.14 Again, priva-
juvenile justice system, it is not an option handled in an informal, non-adversarial, cy was paramount.
after a juvenile has been transferred. And, and highly confidential manner. Jane The court decisions of this period
while voting rights are not lost for juve- Addams, one of the original visionaries attempted to balance the competing con-
niles adjudicated delinquent in the juve- of the juvenile justice system, noted that cerns of protecting legal rights and
nile justice system, an adult conviction the goal of the system should be “a deter- retaining the original intent of the juve-
brings with it disenfranchisement from mination to understand the growing nile court. Juvenile reform advocates
some state and federal elections. This child and a sincere effort to find ways for knew that publicity brings with it addi-
means that in some cases, a young person securing his orderly development in nor- tional scrutiny and collateral conse-
might lose the right to vote — meaning a mal society.”11 Society placed an empha- quences, regardless of the outcome of the
lifetime disenfranchisement in some sis on correcting misbehavior and mini- case. This mindset confirmed the
states — even before reaching legal voting mizing disruptions in the transition to approach of the founding principles of
age. The consequence associated with the adulthood for young people who break the juvenile justice system: youth mature
loss of this civil right can be viewed as the the law. out of their misdeeds with the right
same consequence when applied to an In the late 1960s and 1970s, the U.S. guidance. For this reason their past
adult because it is a longer period of Supreme Court decided a series of cases should not be allowed to dictate their
time.8 Finally, the criminal conviction of that responded to growing concerns that chances in the future.
an alien resident can and frequently does the juvenile court system’s focus on infor- The late 1980s and 1990s brought a
result in deportation. For juvenile cases mality had done more harm than good. near reversal from this perspective,
transferred to the adult court, the indi- In 1967, the Court established that juve- involving de-emphasis of youth privacy
vidual may be deported upon conviction niles, even though they were in a different and heightened interest in public
regardless of age.9 system, were still entitled to the basic safe- accountability. Increases in crime, com-
The issue of requiring counsel to guards that an adult would be granted in munity fears about public safety, dire
advise a client about collateral conse- the courtroom. In re Gault concluded warnings from misguided policymakers,
quences was recently addressed in Padilla that juveniles were protected by the con- and the rise of the victim’s rights move-
v. Kentucky.10 Padilla, a U.S. resident of 40 stitutional right to counsel, the opportu- ment shaped the majority belief that
years, was not informed that he faced nity to confront witnesses, the right increased publicity around juvenile pun-
deportation when he pled guilty to a drug against self-incrimination, the right to a ishments would deter potential offenders
distribution charge. He successfully transcript of the hearing, and a right to and hold young people accountable for
argued on appeal that ineffective assis- appeal the court’s decision.12 In its opin- their actions.
tance of counsel was provided in his case. ion, the Court acknowledged that apply- Many felt the juvenile justice system
W W W. N A C D L . O R G J U LY / A U G U S T 2 0 1 1 21
was treating juveniles too lightly. Some sweeping legal changes of the 1990s leaving formal custody do not return to
pointed to singular events of serious juve- included expansion of zero tolerance laws, school.21 In the absence of federal policy
nile crimes and sought to present them as spearheaded by the federal government in disallowing it, some states have enacted
commonplace. Legal changes that devel- the passage of the Gun-Free Schools Act laws that create clear obstacles for youth
oped in this era centered on easing ways (GFSA),17 which mandates that states attempting to re-enroll in high school
that certain individuals or groups could receiving funds under the Elementary and upon re-entry from secure detention. In
learn about one’s delinquent behavior Secondary Education Act (ESEA) estab- 2002, the Pennsylvania Legislature
and impose additional sanctions. To date, lish laws regarding firearms, requires one- amended its school code to permit
these collateral consequences have been year expulsion for certain weapons offens- Philadelphia public schools to exclude
most apparent in the areas of education, es, and provides incentives to states to youth who had been in secure placement
housing, employment, and placement on tighten their laws around weapons in or who were on probation from return-
public registries. schools. A student can still be subject to ing to the regular classroom. Instead,
In the past two decades, information the provisions of the GFSA even if found these youth were to be enrolled in an
sharing about adjudicated juveniles has not guilty of the offense, and schools have alternative education setting. However,
become easy and encouraged, and rules the authority to terminate all educational in 2005, the state Supreme Court in
surrounding youth privacy and confiden- services to a person who violates this Pennsylvania ruled this to be unconsti-
tiality have loosened in the interest of statute. In New Jersey, the scope of the tutional.22 Students in Pennsylvania can
public safety. Today, agencies enter into GFSA was expanded to include students now be placed in alternative schools only
agreements to share delinquency data, convicted of using a firearm in the com- after an individualized assessment of
school data, and family data. While infor- mission of a crime even if it was off school their education needs has been conduct-
mation sharing is a useful tool to keep property, anywhere in the state. In ed; they cannot be categorically excluded
track of youth across systems, many find Missouri, schools can suspend or expel from public schools.
that the lack of discretion with which students who were charged but not con- School exclusion policies carry into
sensitive information is shared outweighs victed of a felony.18 And in North higher education as well since college
this usefulness. Carolina, a student who is charged, con- applications ask candidates about their
Schools, for instance, have been victed, or adjudicated of a criminal criminal record. While applications used
granted unparalleled power to access offense can be suspended or expelled to restrict the question to whether one
juvenile records and impose new disci- from school even if the offense is alleged had been convicted of a crime (for which
plines that involve law enforcement, to have occurred off school grounds.19 most adjudicated juveniles could respond
arrests, convictions, and the possibility of Public demand for stricter gun laws negatively since an adjudication is techni-
a record. Courts, too, have become much in schools grew in response to select cally not a crime), many applications now
more willing to reveal information; today instances of school shootings around this also ask whether the individual has been
only four states maintain complete confi- time. These events demonstrated the ease arrested or been adjudicated delinquent.23
dentiality for juveniles who go to court in with which guns could be brought on Only in an instance in which the record
response to a delinquency charge. In campus, and schools took appropriate has been expunged would a young person
addition, a set of Supreme Court cases measures to restrict such opportunities in be able to keep this information private.
around this time restricted the power to the future by installing security systems
sanction the media for releasing a juve- and metal detectors. However, less Barriers to Employment
nile’s name to the public as long as it was emphasis was placed on how infrequent- Employment status is another strong
obtained lawfully.15 And, many states now ly school violence occurs. Instead, a sense predictor of criminal behavior.
allow media the right to release not only developed that schools are dangerous, but Individuals who have a job are less likely
the identity but also the physical images this perception is not supported by statis- to commit crime, as evidenced by the
of juveniles in court proceedings.16 tical reality. In fact, school-related vio- findings in numerous studies on the sub-
lence is rare and has been dropping for ject.24 Yet when youth seek employment,
Collateral Consequences more than a decade.20 Nevertheless, dis- they may be turned away if a criminal
tinct incidents frightened parents about conviction is revealed.
Of a Conviction or the safety of their children at school, and A common assumption is that indi-
Delinquency Adjudication this fear led to many of today’s school viduals who are processed in the juvenile
exclusion laws. justice system have their records
Zero Tolerance and Other School destroyed (expunged) when they turn 18.
Push-out Policies Challenges to Re-enrollment This is not the case. The laws governing
Attendance at school is a strong pro- Pressure on schools to excel through whether a juvenile record is sealed (not
tective factor against delinquency; youth performance on standardized test scores accessible by the general public) or
who attend school are much less likely to may have the effect of bolstering a school expunged vary from state to state.25 All
commit crime both in the short term and district’s trend to create obstacles to re- states except Rhode Island allow for
in the long term. Emphasis on finishing enrollment for formerly incarcerated records expungement under certain crite-
one’s education should be a high priority youth. Some schools exclude formerly ria. However, in 29 states and the District
for any system designed to assist youth in incarcerated youth because these individu- of Columbia, certain permanent exclu-
their developing years. Despite the strong als are considered difficult to manage. sions to expungement apply. Even when a
connection between school truancy, And, in many instances schoolwork com- record is expunged, in reality sometimes
dropouts and delinquency, maintaining a pleted by youth in detention is not count- the record still exists. Records destruction
connection to school for delinquent ed by the school toward credit completion. sometimes means the files are kept in a
youth is sometimes a challenge. More than half of youth in secure separate file accessible by specified parties
The consequences of school push- placements have not completed the through a court order.26 Juveniles trans-
out policies are numerous. Part of the eighth grade and two-thirds of those ferred to the adult system are not protect-
ed from any restrictions on record zations at risk. Yet, criminologists who entire family. In fact, in a 2002 study of
expungement. Having a criminal record study the impact of criminal records on Chicago evictions shortly after Congress
leads to numerous lifelong barriers that future offending find that after a crime- passed this law, researchers determined
greatly reduce access to stabilizing life free period of six years, offenders display that 25 percent of the “One Strike” evic-
characteristics including permanent virtually no difference in offending risk tions resulted from a juvenile conviction.36
housing, education, and employment. compared to those who never committed The work of the defense attorney
Individuals usually need to complete a crime.31 becomes more complicated when a con-
an application to have their record The time youth spend in out-of- viction can also affect family members, as
expunged, even if they were arrested but home placement is generally not spent in in the case of a potential eviction. It
found not guilty of the offense. In North preparation for employment, despite the might seem appropriate to turn to the
Carolina, for example, the application protection employment serves against defendant’s parents for instruction on the
process entails submitting the following: future offending. Some have noted that in best interests of the child, but not if they
an affidavit by the petitioner stating that residential settings, vocational program- are influenced by potential collateral con-
the petitioner has been out of trouble ming designed to prepare young people sequences imposed on them as well. The
since the adjudication and has not had for a job upon release is not accompanied ability of the defense attorney to under-
any subsequent adjudications or convic- by any industry certification, or associated stand, convey, and navigate these compet-
tions; a verified affidavit of two adults with high-growth jobs in the communi- ing concerns is vital to the case, and the
who are unrelated to the petitioner, sub- ties where the youth would be returning.32 attorney must keep allegiance foremost to
stantiating that the petitioner has exhibit- Completion of education is also the client.37
ed positive behavior; and a statement closely related to employment. The con- Youth re-entering their communities
determining whether the petitioner was sequences of dropping out of school were from out-of-home placement struggle to
adjudicated delinquent or undisci- recently reinforced in the findings from a achieve housing stability.38 Factors con-
plined.27 In cases of less serious offenses Northeastern University study.33 The tributing to high mobility and residential
or when the youth completed the neces- economists found that, in 2008, 45.7 per- displacement include severe and unre-
sary diversion program, the record can cent of the nation’s high school dropouts solved conflicts with parents, abuse from
often be expunged upon approval by the were employed, versus 68.1 percent of parents, homeless parents, overcrowding,
court. In about half of the states, howev- those who completed high school. High lack of rental history, income levels insuf-
er, adjudication for offenses that would school dropouts aged 16-24 were about ficient to afford market rate rent, criminal
be felonies if committed by an adult are half as likely to be employed as those with history, and deficits in independent living
not eligible for record expungement.28 a college degree. The study also found skills. Some youth return to supportive
Thus, regardless of age at offense, this that youth who dropped out of high homes while others do not.
offense could stay on one’s record forever. school were 63 times more likely to be in If juvenile offenders become home-
In Pennsylvania, for example, the an institution (jail, prison, or juvenile less after discharge from secure place-
records of youth 14 years of age or older detention center) than those who had ment, they experience higher risks for
may be accessible to the public if the completed college. Nearly 10 percent of reoffending. Many times, youth are
offense would have been considered a young high school dropouts were in a released from confinement only to return
felony if committed by an adult. If the correctional institution; for high school to families in which there is chemical
youth was 12 or 13 years old at the time of graduates, 2.8 percent were incarcerated. dependency, physical or sexual abuse, or
the offense, only certain types of adjudi- criminal activity. Unfortunately, deten-
cations would result in a record that may Eviction and Homelessness tion facilities often fail to work with fam-
be available to the public. If the juvenile In 1996 during the Clinton adminis- ilies of the detained youth. Many youth
was previously adjudicated delinquent tration, Congress passed a federal law that released from detention return to families
for an offense mentioned above, and drastically broadened eviction policies with severe internal conflicts and com-
another petition has since been filed, that governing low income housing. The munities lacking in opportunities for
juvenile’s court record will be public National Affordable Housing Act in that positive youth development or employ-
regardless of the most recent charge.29 year required eviction for “[a]ny criminal ment. Two separate studies found that
Surveys of the post-incarceration activity that threatens the health, safety, one in four youth (25 percent) released
employment application process find or right to peaceful enjoyment of the from foster care, a group home, or juve-
that having a criminal record places job premises by other tenants or drug-related nile detention center spent their first
seekers in a very undesirable position.30 criminal activity on or off such premises, night either in a shelter or on the street.39
Moreover, the months or years spent out engaged in by a public housing tenant, The communities to which youth
of the labor force while in detention, jail, any member of the tenant’s household, or return are also often rife with problems.
or prison can place these individuals at a any guest or other person under the ten- Adults have more independence regard-
distinct disadvantage in finding a job. ant’s control. …”34 This policy also ren- ing their mobility upon release, but youth
The Internet creates an easily accessi- dered evicted family members ineligible may not. Family reunification is certainly
ble way to search someone’s criminal for public housing for at least three years ideal, but this may not make sense in sit-
record and draw assumptions about the following the eviction. In 2002, the issue uations in which the child will be placed
aptitude for one’s position. For a small went to the Supreme Court in at risk. Sometimes it is best to remove
fee, a criminal record can be obtained Department of Housing and Urban youth from high-crime neighborhoods.
almost instantly. In addition, information Development v. Rucker, in which the
on the Internet is permanent, so even Court affirmed that residents could law- Placement on a National or
criminal offenses that were committed fully be evicted from public housing State Sex Offender Registry
decades ago can appear. Understandably, based on the offenses of their relatives.35 Sex offender registries are gaining in
employers do not want to hire someone Because of this law, a juvenile convic- popularity and are used widely to track
who will put their companies or organi- tion might result in an eviction of the the whereabouts of persons convicted of
a wide range of sex offenses. Since 1996, individuals as young as 11 years old are obtaining much-needed treatment. It is
all states have passed some type of law required to be placed on North widely established that one’s attachment
that mandates the registration of sex Carolina’s sex offender registry if con- to the community, engagement in school,
offenders in a searchable database and victed of committing or attempting to and stable housing are predictors of
requires notification each time the commit first-degree rape, second-degree delinquency; those who are presented
offender changes residence.40 This infor- rape, first-degree sexual offense, or sec- with these sorts of challenges may thus be
mation is often publicly available and ond-degree sexual offense. Registry more inclined to continue delinquent
individuals remain on the registry for the information is circulated to various behavior. In addition, the entire family
rest of their lives in many jurisdictions. statewide databases and retained until may be treated like pariahs if it is revealed
In many states laws also exist that the individual reaches the age of crimi- that a child in the family is on the federal
require offenders to inform the commu- nal majority. sex offender registry.
nity that they are a registered sex offend- In Michigan, more than eight per- Sex offender laws exemplify how the
er directly through distribution of flyers cent of the state’s sex offender registry is treatment of juveniles has drifted off
or notices on community bulletin made up of juveniles, some as young as course from the founding vision for juve-
boards. The high volume of sex offender nine years old.44 According to state law, nile justice. The original aim of the juve-
laws passed in the last 15 years was identified sex offenders must stay on the nile justice system was to create a system
unfortunately precipitated by highly sen- registry for at least 25 years and stay for whereby delinquent acts would not dis-
sationalized crimes rather than the devel- life under some circumstances. Unlike rupt the pathway to adulthood by plac-
opment of specialized knowledge about some states that restrict sex offender reg- ing barriers in the youth’s way that made
how to prevent, respond to, and reduce istry to particular sex-related crimes, it difficult or impossible to succeed.
repeat sex offenses. While the stated pur- Michigan law dictates that all sex-related Instead, the system’s focus on rehabilita-
pose of sex offender laws is to inform offenses must be registered, though their tion stressed the belief in reformation.
interested parties of strangers in their placement is on a non-public registry Registries and community notification
midst who have been convicted of a sex only available to law enforcement. And laws represent departures from this line
offense, lawmakers remain ignorant to illogically, unless the case is transferred of thinking by labeling the young person
the fact that over 96 percent of sex to the adult court, the juvenile cannot as a danger to society — a predator —
offenses are committed by a victim’s rel- petition the court to avoid the sex sometimes for the rest of the person’s life.
ative,41 rendering victims unaided by offender registry, putting the juvenile in a
these laws. bind about which option is worse.45 Conclusion
As the knowledge base about sex Congress enacted the Adam Walsh
offenders develops, it has become Act in 2006 to strengthen the federal Today juveniles experience conse-
increasingly clear that placement on a sex response to sex offenders. It signified the quences that go well beyond their initial
offender registry is especially harmful to first time in U.S. history that federal law encounters with the law. The formaliza-
young people, ineffective at accomplish- required children 14 years old and over tion of the juvenile court proceedings
ing its intended purpose, and wasteful of who have been adjudicated delinquent through the legal protections established
taxpayer resources. Nevertheless, over for certain sex-related offenses to be in the Supreme Court rulings of the late
half of the states require juveniles to be placed on a national sex offender registry 1960s and early 1970s was necessary, but
placed on the sex offender registry and for 25 years to life. Title I of the Act per- also led to a reduced ability for the defen-
the remaining states are either silent tains to the Sex Offender Registry and dant to comprehend the court proceed-
about the inclusion of juveniles or Notification System (SORNA), which ings and consider long-term conse-
include juveniles once transferred to the sets national standards for sex offender quences of actions taken in court.47
adult system. New Mexico is the only registration and notification. It has Research now shows that the adolescent
state that specifically excludes all juve- received much criticism, especially for brain is not fully formed until the early
niles from sex offender laws.42 the mandatory inclusion of children.46 20s. Until this time, a young person’s pre-
The dangers of sex offender reg- After individuals have been added frontal cortex — the location for execu-
istries are especially real for juveniles to the registry, they face strict limitations tive functioning and long-term planning
who are adjudicated delinquent for sex- on where they can live, attend school, — is not yet matured. It is well-estab-
related offenses. Juveniles who engage in and work. Anytime registrants change lished in medical science that young peo-
sex offenses are especially amenable to residency they must notify the authori- ple fail to consider and appreciate the
treatment and frequently exhibit low ties and update their registration; failure importance of the future and instead
reoffending rates, particularly in relation to do so promptly can and frequently focus on the short-term gains of their
to other crimes.43 In addition, some juve- does result in incarceration. The registry decisions.48 Defense attorneys should be
niles have engaged in consensual sexual is available on the Internet, but it is on a mindful that their clients may not under-
acts when they were below the age of protected website not accessible by the stand the process and will need to be
consent, and as a result they have been general public. States that do not amend provided with age-appropriate explana-
convicted of sex offenses and must regis- their laws to comply with the Act face a tions to calculate the impact of their
ter as sex offenders. Youth who are 10 percent withholding of their federal decisions in the court proceeding. For
already under the close scrutiny of the Justice Assistance Grant (JAG) funds. this reason, the role of a competent juve-
juvenile justice system are the most likely Despite the law’s intent to make chil- nile defender to translate the potential
to fall under this scenario. dren and the community safer, it does the consequences of a conviction so that the
Sex offender laws ensnare young opposite. Young people face social stigma, young person can understand has
people in the laws they were established branding as predators, housing bans, and become critical. The collateral conse-
to protect. Most states have adopted exclusion from schools as a result of quences of a juvenile conviction should
strict requirements for young people placement on the registry. Registration
convicted of sex offenses. For instance, may also foreclose opportunities for Continued on page 26
~ Please Photocopy and Distribute Broadly ~ COLLATERAL CONSEQUENCES
Continued from page 24
In a time when everyone is looking surgically at their budget, NACDL is the
best value around: Connect, learn, save, and support the profession of not be an afterthought.
criminal defense. For more on member benefits, see www.nacdl.org/join.
A juvenile adjudication of guilt
has far more drastic conse-
Membership Application quences than existed just 10
years ago, and both lawyers and
SPECIAL INTRODUCTORY OFFER: their juvenile clients need to be
15 months of NACDL membership for aware of these effects — even if
the price of 12! (New members only) the disposition consists only of
probation and includes no
___ YES! Sign me up as a new member of NACDL and active period of incarceration.
start my subscription to The Champion today! Some of these consequences

may not be apparent for a num-
I qualify for the following membership category (Please check one) ber of years, but their possibili-
ty should be anticipated, fully
Membership Annual Dues: Membership Annual Dues:
Categories: Categories: considered, and planned for,
wherever possible.[49]
o Regular $290 o Law Student $55
o New Lawyer* $165 o Associate $175 Defense attorneys also must be
o Law Professor $150 o International $165 aware of possible conflicts of interest
between family members and clients if
o Public Defender** $125 o Sustaining $425
the conviction could impact family
o Judge $175 o President’s Club $625 members as well. Matters pertaining to
o Military $150 o Life Member*** $5,000 housing, education, employment, and
* New Lawyer Membership -- for members of the bar for less than 3 years offender registry and community notifi-
** Public Defender Membership – for full-time, salaried employees cation laws should be discussed early and
of non-profit or government agency comprehensively so that the client pro-
*** Life Membership – a one-time contribution; or 5 installments of ceeds with the best knowledge of his or
$1000 each over 5 consecutive years her choices. Navigating the legal maze of
collateral consequences of a conviction
Applicant Name: ________________________________________________ might be assisted through consulting
state resources or national initiatives
Referred By: ___________________________________________________ such as the American Bar Association’s
Firm Name:_____________________________________________________ Collateral Consequences Project.50
Every effort should be made to keep
Address: _______________________________________________________ youth off sex offender registries, criminal
City: _______________________________State: _________Zip: _________ record checks, and community notifica-
tion systems. While the prospects for
Date of Birth:______________________Gender: ______________________
society’s return to the vision for the juve-
Phone: ________________________________________________________ nile justice system of the early 20th cen-
Fax: __________________________________________________________
tury have diminished, efforts can be
made at the courtroom level to mitigate
E-mail: ________________________________________________________ some of the harms inflicted as a result of
State Bar(s) & Admission Date(s): ___________________________________ the recent shifts in juvenile justice laws
and practices. Informed defense attor-
Bar Number(s): _________________________________________________ neys should be aware of the collateral
Credit Card #:___________________________________________________ consequences and stay abreast of legal
developments that might worsen the
Expiration Date: _____________________Card Type:___________________ outcomes for youth.
Billing Address: _________________________________________________ The United States must establish a
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Return by FAX to: (202) 872-8690 tion and re-entry services to connect
Attn: NACDL Membership Director youth with meaningful opportunities
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Notes 879 A.2d 408 (2005). (1996); M.J. ROBERTSON, ALCOHOL RESEARCH GROUP,
1. CHARLES PUZZANCHERA, OFFICE OF JUVENILE 23. Robert E. Schwartz, supra note 8. HOMELESS YOUTH IN HOLLYWOOD: PATTERNS OF
JUSTICE AND DELINQUENCY, JUVENILE ARRESTS 2008 24. Christopher Uggen & Melissa ALCOHOL USE (1989).
(2009). Thompson, The Socioeconomic Determinants 40. Elizabeth Garfinkle, Coming of Age in
2. Charles Puzzanchera & Wei Kang, Easy of Ill-Gotten Gains: Within-Person Changes in America: The Misapplication of Sex-Offender
Access to Juvenile Court Statistics: 1985-2007, Drug Use and Illegal Earnings, 109 AM. J. SOC. Registration and Community Notification of
available at http://ojjdp.ncjrs.gov/ojstatbb/ 146 (2003); Shawn Bushway & Peter Reuter, Juveniles. 91 CAL. L. REV. 163 (2003).
ezajcs. Labor Markets and Crime, in CRIME: PUBLIC 41. Id.
3. NEELUM ARYA, CAMPAIGN FOR YOUTH JUSTICE, POLICIES FOR CRIME CONTROL 3D ED. (James Q. 42. Id.
STATE TRENDS: LEGISLATIVE VICTORIES FROM 2005 TO Wilson & Joan Petersilia eds., 2001). 43. Id.; FRANK ZIMRING, AN AMERICAN TRAVESTY:
2010: REMOVING YOUTH FROM THE ADULT CRIMINAL 25. Sealing typically refers to placing LEGAL RESPONSES TO ADOLESCENT SEXUAL OFFENDING
JUSTICE SYSTEM (2011). court records in a separate repository that is (2006).
4. Howard N. Snyder, An Empirical Portrait not available to the public. Expungement 44. David Alire Garcia, Juveniles Crowd
of the Youth Re-entry Population, 2 YOUTH refers to the process of destroying the court Michigan Sex Offender Registry, MICH.
VIOLENCE AND JUVENILE JUSTICE 39 (2004). records and any history of court involvement MESSENGER, Feb. 10, 2010, available at
5. Neelum Arya, supra note 3. in a particular case. http://michiganmessenger.com/34538/juve-
6. Donna Bishop, Charles Frazier, Lonn 26. LYNN A. SZYMANSKI, NATIONAL CENTER FOR niles-well-represented-on-mich-sex-offend-
Lanza-Kaduce & Larry Winner, The Transfer of JUVENILE JUSTICE, SEALING/EXPUNGEMENT/ er-registry.
Juveniles to Criminal Court: Does It Make a DESTRUCTION OF JUVENILE COURT RECORDS: SEALED 45. Garcia, supra note 44.
Difference? 42 CRIME & DELINQUENCY 171 (1996); RECORDS THAT CAN BE UNSEALED OR INSPECTED 46. Pub. L. 109-248.
Jeffrey Fagan, Separating the Men From the (2006). 47. Michael Pinard, supra note 20.
Boys: The Comparative Impact of Juvenile and 27. N.C. GEN. STAT. § 7B-3200(c). 48. Kristin Henning, supra note 15;
Criminal Court Sanctions on Recidivism of 28. Robert E. Schwartz, supra note 8; S. Elizabeth Scott & Thomas Grisso, The Evolution
Adolescent Felony Offenders, in A Sourcebook SIMKINS, WHEN KIDS GET ARRESTED: WHAT EVERY of Adolescence: A Developmental Perspective
on Serious, Violent, and Chronic Offenders 238- ADULT SHOULD KNOW (2009). on Juvenile Justice Reform, 88 J. CRIM. L. &
260 (J.C. Howell, B. Krisberg & D.J. Hawkins 29. RIYA SHAH, JUVENILE LAW CENTER, JUVENILE CRIMINOLOGY 137 (1997).
eds., 1995). RECORDS EXPUNGEMENT: A GUIDE FOR DEFENSE 49. Robert E. Shepherd, Pleading Guilty in
7. Liz Ryan, Campaign for Youth Justice ATTORNEYS IN PENNSYLVANIA (2007). Delinquency Cases, 16 CRIMINAL JUSTICE MAGAZINE
Testimony Before Washington, D.C. City 30. JEREMY TRAVIS, BUT THEY ALL COME BACK: (2001).
Council, hearing on Bill 17-913, the FACING THE CHALLENGES OF PRISONER RE-ENTRY 50. With funding from the National
Juvenile Justice Improvement Act of 2008 (2005). Institutes of Justice, the American Bar
(October 20). 31. Megan Kurleychek, Robert Brame & Association is developing a comprehensive
8. Robert E. Schwartz, Collateral Shawn Bushway, Scarlet Letters and online, searchable database of state statutes
Consequences of Juvenile Proceedings: Part II, Recidivism: Does an Old Criminal Record Predict surrounding collateral consequences. This
15 CRIMINAL JUSTICE MAGAZINE (2000). Future Offending? 5 CRIMINOLOGY & PUB. POL’Y database, which currently lists more than
9. Morasch v. Immigration and 483 (2006). 38,000 statues, can be accessed at http://isr-
Naturalization Service, 363 F.2d 30 (9th Cir. 32. Robert Schwartz, Keynote Address at web.isr.temple.edu/projects/accproject. n
1966). the Symposium on the Intersection of
10. Padilla v. United States, 130 S. Ct. 1473 Juvenile Justice and Poverty (March 26, 2009).
(2010). 33. A. SUM, I. KHATIWADA, J. MCLAUGHLIN & S. About the Author
11. FRANKLIN E. ZIMRING, AMERICAN JUVENILE PALMA, CENTER FOR LABOR MARKET STUDIES, THE Dr. Ashley Nellis leads The Sentencing
JUSTICE (2005). CONSEQUENCES OF DROPPING OUT OF HIGH SCHOOL: Project’s research
12. In re Gault, 387 U.S. 1428 (1967). JOBLESSNESS AND JAILING FOR HIGH SCHOOL and legislative ac-
13. Id. DROPOUTS AND THE HIGH COST FOR TAXPAYERS tivities in juvenile
14. McKeiver v. Pennsylvania, 403 U.S. 528 (2009). justice reform and
(1971). 34. National Affordable Housing Act, serves as the co-
15. Kristin Henning, Eroding Pub. L. No. 104-120, § 9(a)(2), 110 Stat. 836 chair of the Nation-
Confidentiality in Delinquency Proceedings: (1996). al Juvenile Justice
Should Schools and Public Housing Authorities 35. Department of Housing and Urban and Delinquency
Be Notified? 79 N.Y.U. L. REV. 520 (2004). Development v. Rucker, 535 U.S. 125 (2002). Prevention Coali-
16. HOWARD SNYDER & MELISSA SICKMUND, 36. Wendy Kaplan & David Rossman, tion. She has an academic and profes-
OFFICE OF JUVENILE JUSTICE AND DELINQUENCY Called ‘out’ at Home: The One Strike Eviction sional background in analyzing criminal
PREVENTION, JUVENILE OFFENDERS AND VICTIMS Policy and Juvenile Court, DUKE FORUM FOR LAW & justice policies and practice, and is ac-
(1999). SOC. CHANGE (2011); available at http://works. tively engaged in efforts to eliminate life
17. 20 U.S.C. Chapter 70, § 8924. bepress.com/david_rossman/3. without parole sentences for juveniles.
18. MO. REV. STAT. § 167.115, 164 (2000). 37. Id.
19. N.C.G.S. § 7B-3101 (a)(2); (a)(3); (a)(5). 38. J. Hagan & B. McCarthy, Homeless Ashley Nellis, Ph.D.
20. Michael Pinard, The Logistical and Youth and the Perilous Passage to Adulthood, in The Sentencing Project
Ethical Difficulties of Informing Juveniles About ON YOUR OWN WITHOUT A NET: THE TRANSITION TO 1705 DeSales Street NW
the Collateral Consequences of Adjudications, 6 ADULTHOOD FOR VULNERABLE POPULATIONS (D. 8th Floor
NEV. L.J. 1111 (2006). Wayne Osgood, E. Michael Foster, C. Flanagan Washington, DC 20036
21. C. ROY-STEVENS, OFFICE OF JUVENILE JUSTICE & G. R. Ruth eds., 2005). 202- 628-0871
AND DELINQUENCY PREVENTION, OVERCOMING 39. R. CLARK & M.J. ROBERTSON, ALCOHOL Fax 202-628-1091
BARRIERS TO SCHOOL RE-ENTRY (2004). RESEARCH GROUP, SURVIVING FOR THE MOMENT: A E- MAIL anellis@sentencingproject.org
22. D.C. v. School District of Philadelphia, REPORT ON HOMELESS YOUTH IN SAN FRANCISCO
IMMIGRATION AND
COLLATERAL
CONSEQUENCES
Today’s Topics
 What Padilla Holds
 How to think about an immigration case
 What your office can do to improve on

dealing with immigration cases
Part I
Who the heck is Padilla, and what does he have to do
with my case?
Jose Padilla
 Came to US as legal permanent resident
from Honduras as a young teenager in the
1960’s.
 Graduated from high school in California
 Enlisted in the US Army upon graduation.
 Volunteered for combat duty in Vietnam, and
was decorated and discharged honorably.
 Married to a US Citizen for more than 30
years – 6 children, 3 of which are disabled.
 Has spent 2 weeks in Honduras since
becoming an adult.
Commonwealth v. Padilla
 Padilla was charged with trafficking in
marijuana greater than 5 lbs, after a
modest quantity of marijuana was found
in his semi.
 Prior to accepting a plea agreement,
Padilla asked his attorney how the plea
would affect his immigration status. The
attorney said that he did not think it
would have an impact, because Padilla had
been in the country so long.
Commonwealth v. Padilla
 Mr. Padilla’s plea was to an “aggravated
felony” making deportation mandatory
and not subject to cancellation of
removal.
 Padilla sought to vacate his guilty plea on
the grounds that he had received
mistaken advice on immigration from his
trial attorney.
Background – IAC Claims
 IAC claims have two elements:
◦ Deficient performance: Acts or omissions
which fall below prevailing professional norms
based on an objective standard of
reasonableness.
◦ Prejudice (Guilty Plea): A reasonable
probability that but for counsel’s errors, the
defendant would not have pled guilty but
would have insisted on going to trial
 In this case, deficient performance is the
only issue (prejudice is still being fought).
Background – Guilty Pleas
 Beginning in the 1960’s, Fed.R.Crim.P. 11
has drawn a distinction between “direct”
and “collateral” consequences, in terms of
what a judge had to advise a defendant
about in conjunction with a guilty plea.
 Direct = Maximum sentence; Collateral =
almost everything else.
 Most states have adopted that distinction.
Background – IAC and Guilty Pleas
 Prior to Padilla, the Supreme Court had
never ruled on this kind of claim.
 In general, most states and circuits held an
attorney had no obligation to advise a
client on a “collateral consequence.”
 The only time an attorney’s performance
could be deficient is if she rendered
“flagrant mis-advice” – meaning advice
which is materially incorrect, and induced
the defendant to plead guilty.
Padilla v. Kentucky – SCOTUS
Decision (Stephens)
 Notes that the distinction between
“collateral” and “direct” has never been
recognized in the context of attorney
advice.
◦ Refuses to say whether the distinction is
significant.
◦ Rejects “flagrant mis-advice” as basis for
vacating a guilty plea.
Padilla v. Kentucky – SCOTUS
Decision (Stephens)
 Finds that “deportation is a particularly
severe ‘penalty’” deserving special
attention.
 Relying on NLADA and ABA Standards,
finds that advice on immigration
consequences is the standard of practice
for criminal defense attorneys.
Stephens’ Required Advice on
Immigration
 Where the immigration consequence is
unclear, counsel has a duty to warn client
that removal is a possibility.
 Where immigration consequence is clear,
counsel has a duty to advise the
defendant about that consequence.
Other Opinions
 Kagan, as Solicitor General, urged
adoption of the “flagrant mis-advice” rule.
 Alito and Roberts would have adopted
the “flagrant mis-advice” rule, and
reversed.
 Scalia and Thomas would have found no
error.
What does this mean in non-citizen
cases?
 If a client is a non-citizen, counsel is required to
consider the immigration law consequences of
any proposed plea, and to advise the client
appropriately.
◦ Where the immigration consequence is unclear,
counsel has a duty to warn client that removal is a
possibility.
◦ Where immigration consequence is clear, counsel has
a duty to advise the defendant about that
consequence.
 Prior decisions hold that counsel is required to
make a reasonable investigation into her client’s
background.
What about other cases?
 Several possibilities:
◦ Advice on traditional collateral consequences
required when they consist of “severe
penalties”.
◦ Advice on traditional collateral consequences
required when the client makes a specific
inquiry.
 “Flagrant Mis-advice” redux?
◦ WWSBD: What would Steve Bright do?
◦ Advice required on consequences identified
by NLADA and ABA
NLADA Standard 6.2(a)(“The
Contents of Negotiations”)
 Counsel shall advise the client of the following:
◦ The maximum term of imprisonment and fine or
restitution that may be ordered, and any mandatory
punishment or sentencing guideline system.
◦ The possibility of forfeiture of assets.
◦ Other consequences of conviction such as deportation,
and civil disabilities.
◦ Any possible and likely sentence enhancements and parole
consequences.
◦ The possible and likely place and manner of confinement.
◦ The effect of good time credits on the sentence of the
client and the general range of sentences for similar
offense committed by defendants with similar
backgrounds.
How to avoid a finding of deficiency
 Make sure that you are aware of your client’s
background and nationality, as well as the
other issues which are important to him
which might relate to a collateral
consequence.
 Make sure that the client is informed of all
serious collateral consequences, whether or
not the client expresses concern about
them.
 Make sure that the client’s questions are
answered accurately.
Part II
The (Very Very) Short Course on Immigration Law
Immigration Law
 Federal law which applies throughout US
 Basic process:
◦ DHS-ICE determines whether a person is subject
to removal, and if so, prosecutes the removal case
before the Board of Immigration Appeals(“BIA”).
◦ The Board of Immigration Appeals, which is an
agency of DOJ, determines whether a person
should be deported
◦ The Board’s decision may be appealed to the
circuit court of appeals where the Board is sitting.
DOJ defends the decision in that Court.
Immigration Procedure - Simplified
 ICE is the police and prosecutor, DOJ is the
judge
 Statutes make most criminal offenses
deportable, including many misdemeanors,
but in many cases gives the Attorney
General the ability to “cancel” the removal.
 Cancellation is generally based on factors
like length of time in the country, age at
arrival, how the foreign national has behaved
while here (i.e. is this her first offense) etc..
Criminal Law and Deportation
 State and federal offenses fall into one of
three broad categories:
◦ Aggravated Felony: Deportation is mandatory
(cancellation not allowed)
◦ Removable offenses: Deportation is presumed,
but may be cancelled
◦ Non-removable offenses: No mention of the
offenses in the removal statutes.
 Offenses which fall into more than one
category will be treated as the most severe
category.
Part III
Representing the Non-Citizen Client
The Five Rules for Immigration Consequences
 Rule No. 1: Never let a client plead to an aggravated felony

(unless they really want to).
 Rule No. 2: Never advise a client to plead to a deportable
offense which is not an aggravated felony, unless it is to avoid
a conviction for an aggravated felony.
 Rule No. 3: Never advise a client to use a pretrial diversion
unless she must to comply with Rules 1 and 2, or you know
it is not a conviction, or that the offense is not deportable.
 Rule No. 4: Don’t let the detainer control the case.
 Rule No. 5: Never rely on common sense alone to solve an
immigration law issue
Rule #1: Aggravated Felonies = BAD
 Deportation is more or less automatic
◦ No cancellation
◦ No asylum
◦ No adjustment of status (except under rare
circumstances)
 No reentry for 20 years, and severe
penalties upon illegal reentry
 Expedited removal for non LPR’s – no BIA
hearing.
 No bond in immigration court – mandatory
detention.
What is an aggravated felony?
 Can shoplifting, with a probated or
suspended 1 year sentence be an
aggravated felony?
 Can a misdemeanor battery charge be an
aggravated felony?
 Can a first offense felony cocaine
possession charge be an aggravated
felony?
What is an aggravated felony?
 “One year” = 365 days, so many
misdemeanors are included.
 Suspended sentences are included, if the
suspended amount is 365 days or more.
 Example: trafficking in marijuana,
sentence of 365 days probated for 2
years, is an aggravated felony.
◦ Even if probation is unsupervised
◦ Even if probation is never enforced
Aggravated Felonies
 Overall, 100’s of offenses are included
 Many are neither “aggravated” nor “felonies”
 Many offenses are aggravated felonies only if
the sentence is one year or more. If all
misdemeanor pleas are to 360 days, that
problem is solved.
 Best to create a chart for your office to
know what is what, and to run it by
somebody with close familiarity with
immigration law regularly
Rule # 2 – No other deportable
offenses, either
 Other deportable offenses
◦ Drug offenses (except possession of <30 grams of
marijuana)
◦ “Crime involving moral turpitude” – if convicted of two or
more offenses (including misdemeanors) not from a single
scheme of criminal misconduct, or one felony within five
years of entry
◦ Felony possession or use of a firearm or ammunition
◦ Domestic violence offenses, including violation of a DVO
(even if a misdemeanor)
◦ Child abuse offenses
◦ Alien smuggling offenses
◦ Document fraud
◦ Failure to register as a sex offender
Rule # 3: Some pretrial diversions
are immigration “convictions”
 The INA has been revised on several
occasions to try to expand the definition
of “conviction” to include many forms of
pre-trial diversion.
What is a “Conviction”
 A finding of guilt, which means:
◦ an admission,
◦ a plea to sufficient facts,
◦ a guilty or nolo contendre plea, or
◦ a jury verdict
 A sentence, which means:
◦ a restraint on liberty, or
◦ a suspended sentence
What is not a “conviction”?
 Juvenile adjudications, provided the court
does not retain any jurisdiction to
sentence as an adult
 Deferred prosecution, but only if the
client does not admit to sufficient facts
What is a “conviction”?
 Your jurisdiction has created a “diversion”
program. To qualify, the client to plead
guilty. The court then imposes a series of
restrictions and obligations (such as
participation in a program). If the client
complies, in two years the record of the
offense is expunged. Conviction?
What is a “conviction”?
 Your jurisdiction has started a program
where the prosecutor agrees not to
prosecute, if the defendant stipulates to
probable cause and agrees to participate
in court ordered programs. Conviction?
Rule #4: Don’t sweat ICE detainers
 ICE detainers are common in some areas.
 They are not criminal detainers
 They are only good for 48 hours once the
client is posted bond or is otherwise
eligible for release on the underlying
charge.
 If ICE takes custody, they are required to
provide bail hearings, etc.
Rule #5: Forget Common Sense
 A minor shoplifting with a 365 day
suspended sentence, even if it is only
nominal, will almost always result
deportation, even if the noncitizen is a
lifetime LPR who has made important
contributions to his community.
 On the other hand, an illegal immigrant
convicted of solicitation to murder might
not be deported.
Immigration law misconceptions
Misconception#1: Aggravated felonies are

always the most serious crimes.
◦ Truth, they are often neither aggravated, nor

felonies.
Misconception #2: An undocumented

immigrant is going to be deported anyway,
so there is no reason to worry about them.
◦ Over 80% of LPR’s have been undocumented
at one point. Changes in status are common.
◦ A deported immigrant who wishes to return
can do so, but they will be adversely affected
by their criminal conviction.
Misconception #3: My judge/prosecutor is
not going to care about immigration
consequences, or is going to hold my
client’s status against him.
◦ Particularly if the client is an LPR, many times

agreements are possible because the
prosecutor does not want to be responsible
for deportation
Part IV
Taking the Next Step
How can an office deal with Padilla?
 NLADA, NY Defenders Association,
Immigrant Defense Project drafted a
protocol on how defender systems can
address immigration law issues.
 Key Finding: Defender offices need the
assistance of actual experts in this area
What do you need?
 Development of resources
 Training of staff
 Advice and counsel on tricky cases
 Language/culture assistance
Developing Resources
 Possible approaches include:
◦ Hiring a full time immigration lawyer
◦ Sharing an immigration lawyer with another
organization.
◦ Contracting with an immigration lawyer to
provide assistance.
◦ For statewide systems, having a statewide
principal expert, and then trained liasons in
each office
Other resources
 Working with community organizations
or interested partners
 A formal advisory relationship with an
immigration attorney or immigration law
organization, such as your local AILA
chapter.
◦ www.aila.org
 ABA developing resources to assist
Don’t forget there are more Collateral
Consequences than Just Deportation
 Louisiana Guide to
Collateral
Consequences
 Link on the Webpage
The takeaways . . .
 Padilla is a call to action
 It is important that we recognize that
increasingly, the consequences of a
conviction are not limited to a sentence.
 We can do it if we build partnerships to
help us address the needs of our non-
citizen clients.
Where’s Lunch?
NYSDA Immigrant Defense Project
Immigration Consequences of Convictions Summary Checklist*
GROUNDS OF DEPORTABILITY (apply to GROUNDS OF INADMISSIBILITY (apply INELIGIBILITY FOR
lawfully admitted noncitizens, such as a lawful to noncitizens seeking lawful admission,
permanent resident (LPR)—greencard holder) including LPRs who travel out of US) US CITIZENSHIP
Aggravated Felony Conviction Conviction or admitted commission of a Conviction or admission of

➢ Consequences (in addition to deportability): Controlled Substance Offense, or DHS the following crimes bars a
◆ Ineligibility for most waivers of removal has reason to believe individual is a drug finding of good moral
◆ Ineligibility for voluntary departure trafficker character for up to 5 years:
◆ Permanent inadmissibility after removal ➢ No 212(h) waiver possibility (except for ➢ Controlled Substance
◆ Subjects client to up to 20 years of prison if s/he a single offense of simple possession of Offense (unless single
illegally reenters the US after removal 30g or less of marijuana) offense of simple posses-
➢ Crimes covered (possibly even if not a felony): Conviction or admitted commission of a sion of 30g or less of
◆ Murder Crime Involving Moral Turpitude marijuana)
◆ Rape
(CIMT) ➢ Crime Involving Moral
◆ Sexual Abuse of a Minor
➢ Crimes in this category cover a broad Turpitude (unless single
◆ Drug Trafficking (may include, whether felony or
range of crimes, including: CIMT and the offense is
◆ Crimes with an intent to steal or not punishable > 1 year
misdemeanor, any sale or intent to sell offense,
defraud as an element (e.g., theft, (e.g., in New York, not a
second or subsequent possession offense, or forgery)
possession of more than 5 grams of crack or any felony) + does not involve
◆ Crimes in which bodily harm is a prison sentence > 6
amount of flunitrazepam) caused or threatened by an
◆ Firearm Trafficking
months)
intentional act, or serious bodily ➢ 2 or more offenses
◆ Crime of Violence + 1 year sentence** harm is caused or threatened by a
◆ Theft or Burglary + 1 year sentence**
of any type + aggregate
reckless act (e.g., murder, rape, prison sentence of 5
◆ Fraud or tax evasion + loss to victim(s) > $10,000 some manslaughter/assault crimes) years
◆ Prostitution business offenses ◆ Most sex offenses
➢ 2 gambling offenses
◆ Commercial bribery, counterfeiting, or forgery + ➢ Petty Offense Exception—for one CIMT
➢ Confinement to a jail
1 year sentence** if the client has no other CIMT + the
offense is not punishable > 1 year (e.g., for an aggregate period
◆ Obstruction of justice or perjury + 1 year sentence**
in New York can’t be a felony) + does of 180 days
◆ Certain bail-jumping offenses
◆ Various federal offenses and possibly state not involve a prison sentence > 6 Aggravated felony
analogues (money laundering, various federal months conviction on or after Nov.
firearms offenses, alien smuggling, failure to register 29, 1990 (and murder
as sex offender, etc.) Prostitution and Commercialized Vice conviction at any time)
◆ Attempt or conspiracy to commit any of the above permanently bars a finding
Conviction of 2 or more offenses of any
Controlled Substance Conviction type + aggregate prison sentence of of moral character and
➢ EXCEPT a single offense of simple possession of 30g 5 years thus citizenship eligibility
or less of marijuana
CONVICTION DEFINED
Crime Involving Moral Turpitude (CIMT) Conviction
➢ For crimes included, see Grounds of Inadmissibility A formal judgment of guilt of the noncitizen entered by a court or, if
➢ One CIMT committed within 5 years of admission into adjudication of guilt has been withheld, where:
the US and for which a sentence of 1 year or longer i(i) a judge or jury has found the noncitizen guilty or the noncitizen
may be imposed (e.g., in New York, may be a Class A has entered a plea of guilty or nolo contendere or has admitted
misdemeanor) sufficient facts to warrant a finding of guilt, AND
➢ Two CIMTs committed at any time “not arising out of (ii) the judge has ordered some form of punishment, penalty, or
a single scheme” restraint on the noncitizen’s liberty to be imposed.
THUS:
Firearm or Destructive Device Conviction ➢ A court-ordered drug treatment or domestic violence counseling
Domestic Violence Conviction or other domestic alternative to incarceration disposition IS a conviction for
offenses, including: immigration purposes if a guilty plea is taken (even if the guilty plea
➢ Crime of Domestic Violence is or might later be vacated)
➢ Stalking ➢ A deferred adjudication disposition without a guilty plea (e.g., NY
➢ Child abuse, neglect or abandonment ACD) is NOT a conviction
➢ Violation of order of protection (criminal or civil) ➢ A youthful offender adjudication (e.g., NY YO) is NOT a conviction
INELIGIBILITY FOR LPR CANCELLATION OF REMOVAL
➢ Aggravated felony conviction
➢ Offense covered under Ground of Inadmissibility when committed within the first 7 years of residence
after admission in the United States
INELIGIBILITY FOR ASYLUM OR WITHHOLDING OF REMOVAL BASED ON THREAT TO LIFE OR FREEDOM IN COUNTRY OF REMOVAL
“Particularly serious crimes” make noncitizens ineligible for asylum and withholding. They include:
➢ Aggravated felonies
◆ All will bar asylum
◆ Aggravated felonies with aggregate 5 year sentence of imprisonment will bar withholding
◆ Aggravated felonies involving unlawful trafficking in controlled substances will presumptively bar withholding
➢ Other serious crimes—no statutory definition (for sample case law determination, see Appendix F)
**For the most up-to-date version of this checklist, please visit us at http://www.immigrantdefenseproject.org. See reverse ➤
**The 1-year requirement refers to an actual or suspended prison sentence of 1 year or more. [A New York straight probation or
conditional discharge without a suspended sentence is not considered a part of the prison sentence for immigration purposes.]
[12/06]
NYSDA Immigrant Defense Project
Suggested Approaches for Representing a Noncitizen in a Criminal Case*
Below are suggested approaches for criminal defense lawyers in planning a negotiating strategy to avoid negative immi-
gration consequences for their noncitizen clients. The selected approach may depend very much on the particular im-
migration status of the particular client. For further information on how to determine your client’s immigration status, refer
to Chapter 2 of our manual, Representing Noncitizen Criminal Defendants in New York (4th ed., 2006).
For ideas on how to accomplish any of the below goals, see Chapter 5 of our manual, which includes specific strategies
relating to charges of the following offenses:
◆ Drug offense (§5.4)
◆ Violent offense, including murder, rape, or other sex offense, assault, criminal mischief or robbery (§5.5)
◆ Property offense, including theft, burglary or fraud offense (§5.6)
◆ Firearm offense (§5.7)
1. If your client is a LAWFUL PERMANENT RESIDENT: 3. If your client is ANY OTHER NONCITIZEN who might
be eligible now or in the future for LPR status, asylum,
➢ First and foremost, try to avoid a disposition that triggers or other relief:
deportability (§3.2.B)
IF your client has some prospect of becoming a lawful
➢ Second, try to avoid a disposition that triggers permanent resident based on having a U.S. citizen or law-
inadmissibility if your client was arrested returning from ful permanent resident spouse, parent, or child, or having
a trip abroad or if your client may travel abroad in the an employer sponsor; being in foster care status; or being a
future (§§3.2.C and E(1)). national of a certain designated country:
➢ First and foremost, try to avoid a disposition that triggers
➢ If you cannot avoid deportability or inadmissibility, but
inadmissibility (§3.4.B(1)).
your client has resided in the United States for more
than seven years (or, in some cases, will have seven ➢ If you cannot do that, but your client may be able to
years before being placed in removal proceedings), try show extreme hardship to a citizen or lawful resident
at least to avoid conviction of an “aggravated felony.” spouse, parent, or child, try at least to avoid a controlled
This may preserve possible eligibility for either the relief substance disposition to preserve possible eligibility for
the so-called 212(h) waiver of inadmissibility
of cancellation of removal or the so-called 212(h) waiver
(§§3.4.B(2),(3) and(4)).
of inadmissibility (§§3.2.D(1) and (2)).
➢ If you cannot avoid inadmissibility but your client
➢ If you cannot do that, but your client’s life or freedom happens to be a national of Cambodia, Estonia,
would be threatened if removed, try to avoid conviction Hungary, Laos, Latvia, Lithuania, Poland, the former
of a “particularly serious crime” in order to preserve Soviet Union, or Vietnam and eligible for special relief
possible eligibility for the relief of withholding of for certain such nationals, try to avoid a disposition as
removal (§3.4.C(2)). an illicit trafficker in drugs in order to preserve possible
eligibility for a special waiver of inadmissibility for such
➢ If your client will be able to avoid removal, your client individuals (§3.4.B(5)).
may also wish that you seek a disposition of the criminal
case that will not bar the finding of good moral IF your client has a fear of persecution in the country of
character necessary for citizenship (§3.2.E(2)). removal, or is a national of a certain designated country to
which the United States has a temporary policy (TPS) of not
removing individuals based on conditions in that country:
➢ First and foremost, try to avoid any disposition that
2. If your client is a REFUGEE or PERSON GRANTED ASYLUM: might constitute conviction of a “particularly serious
➢ First and foremost, try to avoid a disposition that triggers crime” (deemed here to include any aggravated felony),
inadmissibility (§§3.3.B and D(1)). or a violent or dangerous crime, in order to preserve
eligibility for asylum (§3.4.C(1)).
➢ If you cannot do that, but your client has been ➢ If you cannot do that, but your client’s life or freedom
physically present in the United States for at least one would be threatened if removed, try to avoid conviction
year, try at least to avoid a disposition relating to illicit of a “particularly serious crime” (deemed here to include
trafficking in drugs or a violent or dangerous crime in an aggravated felony with a prison sentence of at least
order to preserve eligibility for a special waiver of five years), or an aggravated felony involving unlawful
inadmissibility for refugees and asylees (§3.3.D(1)). trafficking in a controlled substance (regardless of
sentence), in order to preserve eligibility for the relief of
➢ If you cannot do that, but your client’s life or freedom withholding of removal (§3.4.C(2)).
would be threatened if removed, try to avoid a
conviction of a “particularly serious crime” in order to ➢ In addition, if your client is a national of any country for
preserve eligibility for the relief of withholding of which the United States has a temporary policy of not
removal (§3.3.D(2)). removing individuals based on conditions in that
country, try to avoid a disposition that causes ineligibility
for such temporary protection (TPS) from removal
(§§3.4.C(4) and (5)).
* References above are to sections of our manual. See reverse ➤
Arizona Legal Studies
Discussion Paper No. 11-17
Making Padilla Practical:

Defense Counsel and Collateral Consequences
at Guilty Plea
Gabriel J. Chin
The University of Arizona
James E. Rogers College of Law
June 2011
Electronic copy available at: http://ssrn.com/abstract=1810840

\\jciprod01\productn\H\HOW\54-3\HOW302.txt unknown Seq: 1 2-JUN-11 10:27
Making Padilla Practical:

Defense Counsel and Collateral
Consequences at Guilty Plea
GABRIEL J. CHIN*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 675 R
I. PADILLA AND THE INDIGENT DEFENSE
CRISIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678 R
A. The Aspirational Nature of the Standard of
Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 679 R
B. The Developing Nature of the Standard of
Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 681 R
II. MAKING INFORMATION ABOUT COLLATERAL
CONSEQUENCES ACCESSIBLE . . . . . . . . . . . . . . . . . . . . . 684 R
A. Putting Collateral Consequence Data in Usable
Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686 R
B. Maintaining Collateral Consequence Data . . . . . . . . . . 687 R
III. WHAT AND HOW SHOULD COUNSEL ADVISE? . 688 R
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 690 R
INTRODUCTION
In Padilla v. Kentucky,1 the Supreme Court held by a seven-to-
two vote that “counsel must inform her client whether [the] plea car-
ries a risk of deportation.”2 Although this holding alone makes the
case a landmark, the decision suggests that it applies beyond the spe-
cific context of deportation. Padilla’s clear implication is that defense
* Chester H. Smith Professor of Law, University of Arizona Rogers College of Law. Re-
porter, ABA Standards for Collateral Sanctions and Discretionary Disqualification of Convicted
Persons, 2001-04; Reporter, Uniform Collateral Consequences of Conviction Act, 2005-10.
Thanks to Daryl K. Atkinson, Whitney V. Fairbanks, and Margaret Colgate Love for helpful
comments, and to the Howard Law Journal for organizing the Symposium. Email:
gchin@aya.yale.edu.
1. 130 S. Ct. 1473 (2010).
2. Id. at 1486.
2011 Vol. 54 No. 3
675

Howard Law Journal
attorneys should warn clients about other serious consequences—the

“collateral consequences”—that flow automatically from a criminal
conviction, even if they are not technically denominated criminal pun-
ishment.3 Because of their importance and their automatic applica-
tion after certain criminal convictions, strong candidates for Sixth
Amendment coverage include sex offender registration and incarcera-
tion, losing the ability to earn a living, and losing the ability to have or
gain custody of a relative or foster child. Other collateral conse-
quences may loom large with respect to particular clients based on
their particular circumstances.
In recent years, imposing collateral consequences has become an
increasingly significant function of the criminal justice system. This is,
in part, because more people are being convicted of crimes.4 In addi-
tion, criminal records are increasingly available to public and private
actors.5 Finally, more collateral consequences are being added to
state and federal statutory and administrative codes, while few are be-
ing removed.6 Accordingly, asking counsel to advise about collateral
consequences is no more or less than asking them to recognize and
account for a core function of the criminal justice system.
Although occasionally guilty pleas will be invalidated for failure
to comply with Padilla, the standards governing ineffective assistance
of counsel suggest that withdrawn pleas will be few in number. A
defendant must show that counsel’s conduct was below the level to be
expected of an ordinarily fallible attorney.7 Thus, failure to advise
about a rare or obscure collateral consequence will not lead to relief,
nor will an attorney be expected to offer advice based on facts or cir-
3. See generally Gabriel J. Chin, & Margaret Love, Status as Punishment: A Critical Guide
to Padilla v. Kentucky, CRIM. JUST., Fall 2010, at 21; Margaret Love & Gabriel J. Chin, The
“Major Upheaval” of Padilla v. Kentucky: Extending the Right to Counsel to the Collateral Con-
sequences of Conviction, CRIM. JUST., Summer 2010, at 36.
4. See THE PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA IN 2008, at 5
(2008), available at http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FI-
NAL_2-1-1_FORWEB.pdf; THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, PREVA-
LENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974-2001, at 1 (2003); HEATHER C. WEST
& WILLIAM J. SABOL, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2007, at 1 (2008).
5. See, e.g., BUREAU OF JUSTICE STATISTICS, REPORT OF THE NATIONAL TASK FORCE ON
PRIVACY, TECHNOLOGY, AND CRIMINAL JUSTICE INFORMATION (2001); Corinne A. Carey, No
Second Chance: People with Criminal Records Denied Access to Public Housing, 36 U. TOLEDO
L. REV. 545, 553 (2005); James B. Jacobs, Mass Incarceration and the Proliferation of Criminal
Records, 3 ST. THOMAS L. REV. 387 (2006).
6. See generally KELLY SALZMANN & MARGARET COLGATE LOVE, ABA, PUB. DEFENDER
SERV. FOR THE D.C., INTERNAL EXILE: COLLATERAL CONSEQUENCES OF CONVICTION IN FED-
ERAL LAWS AND REGULATIONS 9 n.1 (2009), available at http://www.abanet.org/cecs/internalex-
ile.pdf (noting the “significant body of collateral consequences that followed 9/11”).
7. Commonwealth v. Mosher, 920 N.E.2d 285, 299 (Mass. 2010).
676 [VOL. 54:675

Making Padilla Practical
cumstances that, after reasonable diligence, remained unknown to the

attorney.8 In addition, the client must show prejudice, in the sense
that but for the incompetence advice, the defendant would have de-
clined the plea on the table and gone to trial or sought a different
bargain.9
As the Court noted in Padilla, the fact that a successful ineffec-
tive assistance of counsel claim results in undoing the plea bargain and
reinstating the original charges imposes an intrinsic disincentive to
seeking plea withdrawal—taking back the plea means giving up the
benefit of the bargain and facing the original charges once again.10
Accordingly, successful Padilla challenges are most likely to occur in
cases involving pleas without a substantial discount from the probable
sentence after trial, or relatively low absolute sentence risks, or both.
That is, many more people would risk rolling the dice (and therefore
knowing about a collateral consequence could have been determina-
tive) if the plea was to an offense that would likely lead to probation
or a short sentence even after trial, or to a sentence of roughly the
same magnitude as the plea. For these reasons, in most cases, if de-
fense attorneys do not give appropriate advice at and before the plea
itself, it is likely that the plea will never be reviewed11 or that any
challenge will be unsuccessful. Padilla’s import, therefore, will likely
be primarily about the training, practices, and norms of defense attor-
neys rather than about litigating failure to comply with it.12
This Essay examines two significant objections to the idea that
defense counsel should systematically advise their clients about collat-
eral consequences.13 The first objection, discussed in Part I, is that
8. People v. Blankley, 747 N.E.2d 16 (Ill. App. 2001).

9. Hill v. Lockhart, 452 U.S. 52 (1985).
10. Padilla v. Kentucky, 130 S. Ct. 1473, 1485-86 (2010).
11. The Supreme Court has held that there is no right to counsel in post-conviction pro-
ceedings. See Murray v. Giarratano, 492 U.S. 1 (1989); see generally Daniel Givelber, The Right
to Counsel in Collateral, Post-Conviction Proceedings, 58 MD. L. REV. 1393 (1999) (discussing
right to counsel); Emily Garcia Uhrig, A Case for a Constitutional Right to Counsel in Habeas
Corpus, 60 HASTINGS L.J. 541 (2009) (same). Accordingly, even individuals who have both legal
grounds to challenge their guilty pleas and little sentencing risk in so doing may well not be able
to afford counsel to seek plea withdrawal.
12. For an expression of the idea that a key part of improving indigent criminal defense is
changing the attitudes and norms of criminal defense attorneys, see Jonathan A. Rapping, You
Can’t Build on Shaky Ground: Laying the Foundation for Indigent Defense Reform Through
Values-Based Recruitment, Training, and Mentoring, 3 HARV. L. & POL’Y REV. 161 (2009).
13. This Essay uses the terminology used by several important sources, including the ABA
Criminal Justice Standards, the Uniform Collateral Consequences of Conviction Act (“UCCCA”)
and Section 510 of the Court Security Improvement Act of 2007, Pub. L. No. 110-177 (2007). It
breaks collateral consequences into two categories. Collateral sanctions apply automatically be-
2011] 677
Howard Law Journal
advising about collateral consequences is an unreasonable demand on

defense counsels’ time. Most criminal defendants in the United States
are represented by public defenders or other appointed counsel.14 It
was widely recognized before Padilla that public defenders were
overburdened; it is certain that lawyers struggling to do basic investi-
gations and legal research may not be eager to have novel duties im-
posed upon them. While these considerations are real, this Essay
proposes that they should not stand in the way of recognizing constitu-
tional rights of defendants, including being made aware of the serious
consequences they will face after conviction. Part I also discusses how
consideration of collateral consequences could actually make defense
counsels’ jobs easier.
The second objection, addressed in Part II, is that satisfaction of
the duty, even by defense counsel with a reasonable amount of time to
do so, is nearly impossible, because collateral consequences are a
black box, difficult to find. In most states, the various collateral con-
sequences have not been compiled, officially or unofficially, in such a
way that they are accessible to lawyers, judges, or others who want to
understand the consequences of particular criminal convictions on
particular individuals. It is pointless to impose a duty on defense
counsel that cannot be satisfied, either because it expects herculean
research efforts, or because it will accept superficial advice based on
moderate research. For Padilla to be implemented across the range of
collateral consequences, lawyers must be able to give reasonably accu-
rate advice at a reasonable cost in time and effort. Part II proposes
that that we are on the verge of making that possible.
Part III discusses some practicalities about the conversations de-
fense counsel should have with clients about collateral consequences,
to find out which ones may be applicable and how they might fit into
the case.
I. PADILLA AND THE INDIGENT DEFENSE CRISIS
Defense lawyers are busy, so busy that in many cases they do not
have time to perform essential legal tasks; indeed, some indigent de-
fense systems have been subject to lawsuits alleging that they system-
cause of a criminal conviction, and discretionary disqualifications are those authorized but not
required based on criminal convictions.
14. Lisa R. Pruitt & Beth A. Colgan, Justice Deserts: Spatial Inequality and Local Funding
of Indigent Defense, 52 ARIZ. L. REV. 219, 222 n.14 (2010).
678 [VOL. 54:675

atically violate the Sixth Amendment.15 The literature is replete with

accounts of attorneys who “meet ‘em and plead ‘em,” i.e., advise their
clients to plead guilty minutes after first meeting them in lock-up.16
Some claim that the plea bargaining process systematically induces
guilty pleas from innocent people.17 Not every public defender
agency or appointed private counsel system works like this, of course,
but there are enough overburdened, under-funded entities to raise a
serious question of whether it is realistic or sensible to ask them to do
more. This section advances several reasons that imposing an addi-
tional burden on counsel to explain the collateral consequences of
criminal conviction is appropriate.
A. The Aspirational Nature of the Standard of Competence

The Supreme Court has described the role of defense counsel in
noble terms.18 So too have the ABA Criminal Justice Standards,19
which are given some evidentiary weight in Sixth Amendment juris-
15. See, e.g., id.; Emily Chiang, Indigent Defense Invigorated: A Uniform Standard for Adju-
dicating Pre-Conviction Sixth Amendment Claims, 19 TEMP. POL. & CIV. RTS. L. REV. 443
(2010); Sanjay K. Chhablani, Chronically Stricken: A Continuing Legacy of Ineffective Assistance
of Counsel, 28 ST. LOUIS U. PUB. L. REV. 351 (2009); Cara H. Drinan, The Third Generation of
Indigent Defense Litigation, 33 N.Y.U. REV. L. & SOC. CHANGE 427 (2009); Stephen J.
Schulhofer & David D. Friedman, Reforming Indigent Defense: How Free Market Principles Can
Help Fix a Broken System (CATO Inst. Policy Analysis, Working Paper No. 666, 2010), available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1710780.
16. Jenny Roberts, Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Mis-
information in the Guilty-Plea Process, 95 IOWA L. REV. 119, 181-82 (2009).
17. Michael W. Smith, Making the Innocent Guilty: Plea Bargaining and the False Plea Con-
victions of the Innocent, 46 CRIM. L. BULL. 965 (2010).
18. Thus, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2556 (2009), Justice Kennedy,
joined in dissent by Chief Justice Roberts and Justices Breyer and Alito, referred to defense
counsel’s duty to be a zealous advocate for every client. This Court has recognized the bedrock
principle that a competent criminal defense lawyer must put the prosecution to its proof:
[T]he adversarial process protected by the Sixth Amendment requires that the accused
have “counsel acting in the role of an advocate.” The right to the effective assistance of
counsel is thus the right of the accused to require the prosecution’s case to survive the
crucible of meaningful adversarial testing. When a true adversarial criminal trial has
been conducted . . . the kind of testing envisioned by the Sixth Amendment has oc-
curred. But if the process loses its character as a confrontation between adversaries,
the constitutional guarantee is violated.
United States v. Cronic, 466 U.S. 648, 656-57 (1984) (internal citations omitted). See also
MODEL CODE OF PROF’L RESPONSIBILITY EC 7-1 (1980), in COMPENDIUM OF PROFESSIONAL
RESPONSIBILITY RULES AND STANDARDS (2008) (“The duty of a lawyer, both to his client and to
the legal system, is to represent his client zealously within the bounds of the law . . . .” (internal
citations omitted)).
19. ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION AND DEFENSE FUNCTION § 4-
1.2(b) (3d ed. 1993), available at http://www.ojp.usdoj.gov/BJA/topics/Plenary4/Workshops/
Workshop4E/R_Maher3-CriminalJusticeSecStandards.pdf (“The basic duty defense counsel
owes to the administration of justice and as an officer of the court is to serve as the accused’s
counselor and advocate with courage and devotion and to render effective, quality
representation.”).
2011] 679
Howard Law Journal
prudence.20 Neither the Court nor the ABA describes the duties of
counsel as ideals; they take seriously such considerations as cost and
efficiency, and recognize that professional judgments will differ.
However, they do assume and require vigorous action on the part of
defense lawyers.
At the same time, it is clear that professional standards are not
always met in the area of criminal defense. They are unmet not be-
cause the standards are so difficult or demanding that they are intrin-
sically out of reach of ordinary attorneys, but because the workloads
of many attorneys do not give them the time to prepare cases as care-
fully as the standards require. These workloads, in turn, are a product
of financial decisions.21 That is, states, counties and cities sometimes
elect to finance indigent defense at levels that require attorneys to
handle so many cases that they perform sub-standard work, and even
work that is below the constitutional minimum.22 In many instances,
defense attorneys are unable to perform basic work associated with
representing a client, such as interviewing witnesses, seeking discovery
from the prosecution, or studying the caselaw surrounding the charge.
The legal system can respond to the mismatch between law on the
books and law in action in several ways. It could reduce the constitu-
tional standard to meet the willingness of political bodies to satisfy it;
that is, if it appears that only a sub-minimal level of criminal defense is
politically feasible, then that and only that will be demanded by the
Constitution. Alternatively, the legal system could continue to de-
velop standards for criminal defense, recognizing that they will not
always be immediately satisfied, in the hope that the standards will be
met over time. In this context, as with all other laws, laws are not
meaningless simply because they are not universally followed.
Compromising the Constitution based on governments’ willing-
ness to comply with it seems unwise. As a policy matter, it would
20. Wiggins v. Smith, 539 U.S. 510, 522 (2003).

21. See Cara H. Drinan, The National Right to Counsel Act: A Congressional Solution to the
Nation’s Indigent Defense Crisis, 47 HARV. J. LEGIS. 487, 491 (2010) (“There are many symptoms
of the public defense crisis, but its primary cause is a lack of adequate funding.”); Andrew E.
Goldsmith, The Bill for Rights: State and Local Financing of Public Education and Indigent De-
fense, 30 N.Y.U. REV. L. & SOC. CHANGE 89 (2005) (discussing indigent finance systems in
several jurisdictions); Ronald F. Wright & Wayne Logan, The Political Economy of Application
Fees for Indigent Criminal Defense, 47 WM. & MARY L. REV. 2045, 2045-46 (2006) (“Funding for
this politically unpopular yet necessary government service must go through the legislative ap-
propriations process, year in and year out, producing an instructive case study in crime politics.
Legislators who draft the criminal justice portions of the state budget routinely express the hope
that the government can control the expense of indigent criminal defense.”).
22. See supra notes 15-17 and accompanying text. R
680 [VOL. 54:675

likely lead to a race to the bottom. As Robert F. Kennedy observed

as Attorney General, “[t]he poor man charged with crime has no
lobby.”23 It seems unlikely that the political process will lead to fair
outcomes for indigent defendants. Indigent defendants may be the
classic discrete and insular minorities for whom judicial review was
designed to protect from majoritarian politics.
Allowing the political branches of state governments to deter-
mine for themselves what the Constitution means also seems inconsis-
tent with the nature of the constitutional guarantees surrounding the
criminal process. The framers of the Bill of Rights and of the Four-
teenth Amendment evidently believed that legal process should oper-
ate with care and deliberation before a free person lost his liberty.24
The legal system should not jettison basic aspects of legal repre-
sentation simply because they are not always adequately funded. Ac-
cordingly, there is no absolute reason that reasonable duties
promising to benefit clients should not be imposed on defense coun-
sel. Realists recognize that some lawyers perform below the minimum
professional level now and will do so in the future. However, the solu-
tion is to strive to meet the constitutional standard, rather than to ad-
mit that the Constitution cannot be followed.
B. The Developing Nature of the Standard of Competence

The content of adequate representation by criminal defense at-
torneys changes over time. Therefore, there is no reason to reject a
new duty merely because it is new. Substantive law and constitutional
criminal procedure changes; defense attorneys are, of course, ex-
pected to be able to make arguments based on the law as it develops.
In addition, the techniques and tasks of legal representation change
over time. For example, as DNA and other scientific evidence comes
into general use, defense attorneys can be expected to keep current.
As new sources of public records and private databases become avail-
able, defense attorneys must draw on them if there may be benefits to
their clients from so doing. As techniques were developed for gener-
ating and presenting certain kinds of mitigation evidence in the pen-
alty phases of capital trials, defense attorneys can be expected to keep
up.
23. ANTHONY LEWIS, GIDEON’S TRUMPET 222 (1964).

24. It is notable that of the Bill of Rights, at least the Fourth, Fifth, Sixth, and Eighth
Amendments address the criminal process, although of course, others, such as the First and
Second, also limit the criminal authority of government.
2011] 681
Howard Law Journal
Collateral consequences are, in many cases, of deep interest to

defendants, more important than the traditional components of sen-
tencing like fines or imprisonment.25 This is particularly true when
the traditional forms of criminal punishment associated with the con-
viction are relatively minimal. But the mere fact that something is of
great interest to a client does not mean that it is within the lawyer’s
duty or capacity to engage; clients may be concerned about social
stigma or non-legal aspects of family relationships, such as, say,
whether a criminal conviction will lead a spouse to choose to initiate a
divorce, or future business partners to shy away from investing. Even
the most expansive view of counsel’s duty would not include advice
about these things or allow withdrawal of a plea if the lawyer’s social
evaluation turned out to be wrong.
Collateral consequences are different for two reasons. First, they
are legal consequences imposed by the state because of criminal con-
viction. They are part of the legal response to crime. Thus, they differ
from discretionary actions of private citizens because of their legal na-
ture. There is a state interest in warning defendants of the conse-
quences so that they can be enforced, which does not exist in the
context of private responses to criminal conviction. There is also an
element of unfairness in the state tying legal consequences to a crimi-
nal conviction, but then declaring that the state will provide no mech-
anism for individuals to learn about them as part of the criminal
case.26
Second, collateral consequences have direct connections to the
criminal case, in the sense that they can affect the substance of plea
bargaining or the nature of the sentence imposed. Given that plea
bargaining and sentencing are duties of counsel,27 there is no profes-
sional reason for defense counsel to ignore legal grounds that may be
used to obtain a better outcome for their client.
Padilla itself makes clear that collateral consequences can be le-
gitimate considerations for the prosecutor and the court to consider at
plea and sentence. As Justice Stevens wrote for the Court:
25. I.N.S. v. St. Cyr, 533 U.S. 289, 322-23 (2001).

26. This is particularly so in that in many instances there is no opportunity to obtain relief.
See Margaret Colgate Love, Paying Their Debt to Society: An Assessment of the Relief Provisions
of the Uniform Collateral Consequences of Conviction Act, 54 HOW. L.J. 753, 757-58 (2011).
27. See Carissa Byrne Hessick, Ineffective Assistance at Sentencing, 50 B.C. L. REV. 1069,
1069 (2009) (“The U.S. Supreme Court has said that the Sixth Amendment right to counsel
includes a right to counsel at sentencing.”).
682 [VOL. 54:675

[I]nformed consideration of possible deportation can only benefit

both the State and noncitizen defendants during the plea-bargaining
process. By bringing deportation consequences into this process,
the defense and prosecution may well be able to reach agreements
that better satisfy the interests of both parties. . . . Counsel who
possess the most rudimentary understanding of the deportation con-
sequences of a particular criminal offense may be able to plea bar-
gain creatively with the prosecutor in order to craft a conviction and
sentence that reduce the likelihood of deportation. . . . At the same
time, the threat of deportation may provide the defendant with a
powerful incentive to plead guilty to an offense that does not man-
date that penalty in exchange for a dismissal of a charge that does.28
Other authorities support the idea that collateral sanctions are
appropriately considered at plea and sentence. For example, the ABA
Standards for Criminal Justice on Collateral Sanctions and Discretion-
ary Disqualification of Convicted Persons provides that “[t]he legisla-
ture should authorize the sentencing court to take into account, and
the court should consider, applicable collateral sanctions in determin-
ing an offender’s overall sentence.”29 The commentary explains that
“[i]n accordance with the generally applicable principles of the Sen-
tencing Standards, the sentencing court should ensure that the totality
of the penalty is not unduly severe and that it does not give rise to
undue disparity.”30
At least as a practical matter, it might be said that collateral con-
sequences are a new, or at least newly recognized, part of criminal
sentencing. Just as with DNA evidence, or the bias of a witness, col-
lateral consequences will sometimes be crucial and in other cases be
irrelevant.31 In a particular case, understanding collateral conse-
quences may be meaningful to the disposition of the case, and, in an-
other, it will be irrelevant.
From the perspective of law enforcement, bringing collateral con-
sequences into the criminal case makes it more likely that the conse-
quence will be carried out; a client who is actually warned that she
may not possess a firearm, for example, may well comply. Similarly,
applicable collateral consequences might be made part of probation
28. Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010).

29. STANDARDS FOR CRIMINAL JUSTICE § 19-2.4(a) (3d ed. 2003).
30. Id. cmt. 22.
31. That is, DNA evidence might be irrelevant if the defendant does not dispute that she is
the source of the biological sample; the bias of a witness might be irrelevant if their testimony is
duplicative or undisputed.
2011] 683
Howard Law Journal
conditions. In some cases, a plea bargain can be reached that will

avoid a particular collateral consequence. It is possible that bringing
collateral consequences into the case will remind a client to seek an
available form of relief. The possibility or certainty of severe collat-
eral consequences will sometimes induce some clients to go to trial
when they otherwise would have taken a plea.
In addition, awareness of collateral consequences is important for
reentry. Almost all people convicted of crimes, even those sentenced
to prison, will ultimately be released into free society. Not only the
individual involved—but also society as a whole—has a strong interest
in those convicted of crimes living law-abiding lives and not returning
to crime. Accordingly, prosecutors and courts share with defense at-
torneys an interest in being aware of what restrictions a convicted in-
dividual will face, and in considering whether the collateral
consequences as well as the traditional punishment are sensible as a
whole. While prosecutors, judges and defense attorneys may disagree
about what the proper sentence is in particular cases, they agree in
principle that people should not be unjustly over-punished and that
sanctions that unnecessarily prevent a person who could do so from
living a law-abiding life should be avoided.32
There will be cases where knowledge of collateral consequences
makes no formal difference in the outcome of the case; the client
takes the same plea to the same charge and suffers the full brunt of
whatever collateral consequences exist. Padilla is not a waste of effort
even then. One of the most important measures of the perceived jus-
tice of judicial proceedings is the perceived fairness of the proceed-
ings.33 Thus, even in such cases, it is worth it to advise the client of the
consequences of conviction.
II. MAKING INFORMATION ABOUT COLLATERAL

CONSEQUENCES ACCESSIBLE
An additional practical objection to imposing a broad duty of ad-
vice under Padilla is that at the moment in many jurisdictions the task
32. NAT’L DIST. ATTORNEYS ASS’N, POLICY POSITIONS ON PRISONER REENTRY ISSUES
§ 4(a) (adopted July 17, 2005), available at http://www.ndaa.org/pdf/policy_position_prisoner_re-
entry_july_17_05.pdf (recognizing that “the lack of employment, housing, transportation, medi-
cal services and education for ex-offenders creates barriers to successful reintegration and must
be addressed as part of the reentry discussion”); see also Robert M.A. Johnson, Message from the
President: Collateral Consequences, THE PROSECUTOR, May-June 2001.
33. Frederick Schauer, When and How (If at All) Does Law Constrain Official Action?, 44
GA. L. REV. 769, 780 n.57 (2010) (discussing the work of Tom Tyler).
684 [VOL. 54:675

would be herculean. In most jurisdictions, there is no readily available

official or unofficial source documenting collateral consequences. Ac-
cordingly, comprehensive advice about collateral consequences in any
individual case would require massive amounts of research, which
would be an unjustifiable expectation in a typical misdemeanor or
even felony case. Lawyers can be expected to master particular dis-
crete bodies of law, like a state’s criminal code or rules of evidence,
but it is unreasonable to expect ordinary attorneys to make them-
selves familiar with the details of an entire state code addressing
scores of discrete areas of law.
The solution to this problem is collective action. It is unreasona-
ble to expect each attorney to do an immense amount of research for
one case. However, it is perfectly reasonable to anticipate that the
legal system, somehow, will see to it that research is done that can be
shared with all participants in the criminal justice system and that will
improve the quality of justice in many of the cases going through the
system. The trick is learning how to generate and maintain lists of
collateral consequences for each jurisdiction.
Fortunately, this problem is in the process of being solved. The
issue was addressed analytically by the ABA Criminal Justice Stan-
dards, which instructs the states to maintain a current list of collateral
consequences.34 This idea was also carried forward in the 2009 Uni-
form Collateral Consequences of Conviction Act promulgated by the
Uniform Law Commission.35 In the Court Security Improvements
Act of 2007, Congress directed the National Institute of Justice to
carry out a fifty-state survey of collateral consequences created by
state law.36 The contract for the project was awarded to the American
Bar Association, which is in the process of connecting and catego-
rizing the collateral consequences of the states and under federal law.
Accordingly, in the near future, criminal defense lawyers and others
will have access to a comprehensive database of collateral conse-
quences applicable under the laws of the state.
34. ABA STANDARDS ON COLLATERAL SANCTIONS & DISCRETIONARY DISQUALIFICATION

OF CONVICTED PERSONS § 19-2.1 (2003) (“The legislature should collect, set out or reference all
collateral sanctions in a single chapter or section of the jurisdiction’s criminal code. The chapter
or section should identify with particularity the type, severity and duration of collateral sanctions
applicable to each offense, or to a group of offenses specifically identified by name, section
number, severity level, or other easily determinable means.”)
35. UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT § 4 (2009).
36. Court Security Improvement Act of 2007, Pub. L. No. 110-177, § 510.
2011] 685
Howard Law Journal
As it happens, it is likely that there will be several hundred collat-

eral consequences in each state; in some jurisdictions, there will be
more. For each state, then, there will be a massive amount of data.
This raw data must be converted into digestible form. In addition, the
ABA research project will create a snapshot, a collection of collateral
consequences on the books as of a particular moment. It is essential
that the data be kept up to date as new laws are passed and existing
laws amended.
A. Putting Collateral Consequence Data in Usable Form
There is, to some extent, a trade-off between completeness of in-

formation and usability; the more complete a dataset is, the less un-
derstandable, and hence useful, it will be, and vice versa.
Nevertheless, there is a tradition of simplification in this context that
may help provide accurate and useful information. In many jurisdic-
tions, bodies of legal data needed by attorneys and judges are digested
into readily usable form. For example, some states have sentencing
charts outlining the basics of the possible prison terms for convictions
for particular offenses.37 This same approach could be used to convey
information about collateral consequences.
One fact that makes it somewhat easier to convey information
about collateral consequences is that some crimes are charged much
more frequently than others. Accordingly, detailed information for a
handful of criminal offenses will provide most information necessary
in most cases. Thus, a useful summary could fit on a few pages. The
cheat sheet for a particular state might contain the following lists:
• The immigration consequences of the twenty-five most common
offenses of conviction.
• Other major collateral consequences of the twenty-five most
common offenses of conviction.
• Crimes leading to loss of public benefits.
• Crimes leading to loss of parental or other family rights.
• Crimes leading to sex offender registration, notification, and
incarceration.
• Crimes leading to the loss of the right to vote, serve on a jury,
hold office or possess a firearm.
37. For additional information on the Arizona sentencing chart, see Criminal Code Sentenc-
ing Chart, ARIZ. JUD. BRANCH, http://azcourts.gov/PublicServices/CriminalLaw/CriminalCode
SentencingChart.aspx (last visited Mar. 2, 2011).
686 [VOL. 54:675

• Any available methods under state law for relieving collateral

consequences.
Some of these crimes will be described categorically; for example,
“felonies” might lead to the loss of the right to serve on a jury or
possess a firearm. While this digest will not cover all of the possible
consequences of all possible convictions, it will provide enough infor-
mation for lawyers to give accurate advice in most situations. Further,
it will be much more useful than presenting attorneys or clients with
an undifferentiated list of hundreds or thousands of collateral
consequences.
B. Maintaining Collateral Consequence Data
The snapshot of collateral consequences being created by the

ABA will be an extremely useful data source. However, unless it is
maintained, it will become increasingly obsolete and unreliable. Over
time, there will be new collateral consequences created and old ones
amended. Ultimately, it will be usable only as the basis for prelimi-
nary research, rather than as an active resource for reliable informa-
tion. The success of the project will require some institution in the
legal system to regularly update and re-publish the compilation.
The ABA Standards and the Uniform Act both contemplate that
the states will enact legislation requiring some arm or branch of gov-
ernment to maintain and update the compilation of collateral conse-
quences.38 However, neither has the force of law; states are not
required to follow either unless they choose to do so through positive
legislation. Accordingly, in states not following this guidance, the re-
sponsibility may fall to some other institution that chooses to take it
up, such as the attorney general’s office, the state affiliate of the Na-
tional Association of Criminal Defense Attorneys, or the state bar
association.39
38. ABA STANDARDS ON COLLATERAL SANCTIONS & DISCRETIONARY DISQUALIFICATION

OF CONVICTED PERSONS § 19-2.1 (2003).
39. One important example of this is the Collateral Consequence Assessment Tool (“C-
Cat”), being developed jointly by the North Carolina Office of Indigent Defense and the Univer-
sity of North Carolina School of Government. The project is funded by a grant from the Z.
Smith Reynolds Foundation of Greensboro, North Carolina. Daryl Atkinson and Whitney Fair-
banks are co-managers of the project, which built on the research done by the American Bar
Association Criminal Justice Section. The aim of the project is to create a database that will
allow attorneys (and others) to identify the collateral consequences associated with particular
North Carolina crimes.
2011] 687
Howard Law Journal
III. WHAT AND HOW SHOULD COUNSEL ADVISE?

Defense attorneys face an inherent tension in advising clients
about collateral consequences. On the one hand, a single ordinary
conviction may have, in principle, thousands of consequences. A sin-
gle conviction under the law of any given state will trigger all of the
applicable consequences in that state. It will also trigger federal con-
sequences. In addition, should the person move to any other state, it
is probable that the conviction would be treated as a conviction in that
second state as well. Accordingly, literal advice about every conse-
quence—reading, consequence by consequence, every bad thing that
will happen—would take hours or days. In addition, it would not pro-
vide much useful information, because no individual will suffer more
than a small fraction of the consequences because the consequences
cover a wide range of behavior. That is, if a particular state denies a
range of occupational licenses or permits to those convicted of felo-
nies, no one individual is, for example, an accountant, and a barber,
and a chiropractor, and a doctor of medicine. The challenge is to de-
termine the handful of collateral consequences that are now or may in
the future be of interest to the particular client.
On the other hand, there are enough serious consequences that it
is problematic simply to identify a few major consequences that will
be covered while ignoring the rest. That, as is suggested by the opin-
ions in Padilla, would be misleading. All nine Justices in Padilla re-
jected a distinction, which had been prominent in lower courts, which
treated misadvice differently from non-advice. Lower courts held that
even as to an issue, such as deportation, which defense counsel had no
duty to affirmatively advise, a guilty plea could be invalidated if a law-
yer gave explicit misadvice.40 Thus, under these decisions, failing to
warn of deportation was not a constitutional violation, but explicitly
informing a client that she would not be deported could warrant with-
drawal of a plea.
No member of the Padilla Court was impressed with this distinc-
tion. They found no meaningful difference between failing to address
an important issue at all and addressing it wrongly, and their reason-
ing is powerful.41 It is based on the idea that “[a] fiduciary’s silence is
40. Padilla v. Kentucky, 130 S. Ct. 1473, 1484 (citing lower court decisions).
41. Id. (“[T]here is no relevant difference ‘between an act of commission and an act of
omission’ in this context.” (internal citation omitted)); Id. at 1487 (Alito, J., concurring in the
judgment) (“[A]n attorney must (1) refrain from unreasonably providing incorrect advice and
(2) advise the defendant that a criminal conviction may have adverse immigration consequences
688 [VOL. 54:675

the same as a stranger’s lie.”42 Laypeople are entitled to expect that

experts will raise all important considerations. Therefore, there is no
meaningful difference between a lawyer’s, say, failure to mention that
under applicable law the client might have to pay the opponent’s at-
torney’s fees if the case does not prevail, and affirmatively misadvising
that “you will not have to pay the other side’s attorney’s fees even if
we lose the case.” Clients expect counsel to raise all significant con-
siderations; if an issue is not raised, the client is entitled to assume that
the consideration does not exist. Accordingly, to raise some collateral
consequences is an implicit representation that there are no others. If
there are no others, or no other important ones, that is wonderful, but
partial advice invites misunderstanding. The only stable principle is
that counsel must strive to advise about all important and applicable
collateral consequences.
The advice must then be both comprehensive and specific; it must
focus on the important consequences without failing to warn about all
of them—it must simultaneously be thick and thin. Attorneys can
achieve this at reasonable cost by offering general information about
collateral consequences and engaging the client in a conversation
about what collateral consequences might be important to her in
particular.
The general advice could be roughly based on what the Uniform
Collateral Consequences of Conviction Act asks courts to do as part
of the guilty plea colloquy. The script is as follows:
NOTICE OF ADDITIONAL LEGAL CONSEQUENCES
If you plead guilty or are convicted of an offense, you may suffer
additional legal consequences beyond jail or prison, [probation] [in-
sert jurisdiction’s alternative term for probation], periods of [insert
term for post-incarceration supervision], and fines. These conse-
quences may include:
• being unable to get or keep some licenses, permits, or jobs;
• being unable to get or keep benefits such as public housing or
education;
• receiving a harsher sentence if you are convicted of another
offense in the future;
• having the government take your property; and
. . . .”); Id. at 1494-95 (Scalia, J., dissenting) (stating that non-advice and mis-advice are beyond
the coverage of the Sixth Amendment “[f]or the same reasons”).
42. Energy Res. Corp. v. Porter, 438 N.E.2d 391, 396 (Mass. App. Ct. 1982) (Brown, J.,
concurring).
2011] 689
Howard Law Journal
• being unable to vote or possess a firearm.

If you are not a United States citizen, a guilty plea or conviction
may also result in your deportation, removal, exclusion from admis-
sion to the United States, or denial of citizenship. The law may pro-
vide ways to obtain some relief from these consequences.43
By providing this information, an attorney will have conveyed the
general contours of possible collateral consequences that might be ap-
plicable to the client.
The lawyer should also ask questions to help determine the exis-
tence of additional important consequences. The lawyer can discern
many of the potential collateral consequences by asking:
• whether the client is a citizen of the United States;
• how the client is employed;
• whether the client owns firearms;
• whether the client receives any public benefits;
• whether the client holds any licenses, permits, or government
contracts; and
• whether the client has any questions based on the categorical
advisement.
The nature of the charge will determine how the attorney pro-
ceeds. If the charge is a serious felony to which alternative disposi-
tions are unlikely, such as a murder or armed robbery, the attorney’s
task may merely be advisory; the attorney should advise the client of
consequences of the plea, such as deportation and loss of the right to
vote or possess firearms.
However, if the charge is less serious, and there are possible alter-
natives, counsel should explore whether there are any important con-
sequences that would warrant a plea to a different offense that would
not carry the consequence, or whether the consequences are so seri-
ous that diversion or some other outcome would be appropriate.
Identification and articulation of collateral consequences may also
persuade the court and prosecutor that a particular sentence is
justified.
CONCLUSION
Padilla v. Kentucky represents both a blessing and a burden for
defense counsel. It is a burden because it requires them to do more
work on top of an already demanding set of responsibilities. But there
43. UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT § 5 (final draft 2010).
690 [VOL. 54:675

are ways to simplify and institutionalize this work by taking advantage

of the ABA’s collection of collateral consequences in each state, or-
ganizing them into usable form, keeping them updated, and making
them available to counsel and others who can make use of them.
The benefit to the system is clear. Bringing collateral conse-
quences into defense counsel’s strategy and planning in criminal cases
may help defendants avoid some serious collateral consequences by
seeking plea bargains that do not carry them. In addition, persons
convicted of crimes are more likely to comply with any collateral con-
sequences applicable to them if they know about them. Moreover,
clients may well feel they have been treated more fairly and respect-
fully by the system if serious legal consequences they face do not
come as complete surprises.
2011] 691
Table of Contents
Preface
Purpose and Use of the Monograph.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Section 1: Overview of the Removal Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2: Consequences of Criminal Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Criminal Grounds of Removability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Aggravated Felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3: Relief and Protection from Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
A. Discretionary Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
B. Relief and Protection from Removal Based on a Fear of

Persecution or Torture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4: Other Immigration Consequences of Guilty Pleas. . . . . . . . . . . . . . . . . . . . . . 40
Section 5: Brief Overview of Criminal Law-Related Amendments to the

Immigration and Nationality Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Appendices:
A. Glossary of Terms
B. Immigration Law Sources and Resources
C. What Constitutes a Conviction for Immigration Purposes
D. The Method for Evaluating Immigration Consequences of Criminal Convictions
Office of Immigration Litigation Immigration Consequences

Revised November 2010 of Criminal Convictions
Preface
This monograph has been prepared by the Office of Immigration Litigation (“OIL”) within
the Department of Justice. The mission of OIL is to defend and preserve the Executive Branch’s
authority to administer the Immigration and Nationality Act. In that capacity, OIL is responsible for
handling and coordinating all federal court immigration litigation. OIL attorneys routinely litigate
cases involving immigration statutes described in this monograph and are experts in interpreting and
applying these statutes.
In addition to handling litigation, OIL provides resource materials and educational training
to various Government components and agencies, including the United States Attorneys’ Offices,
the Department of Homeland Security (“DHS”), and the Executive Office for Immigration Review
(“EOIR”). As part of its resource and training function, OIL has created this monograph in response
to the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The Court’s
holding in Padilla requires defense counsel to have a basic understanding of immigration law – an
area in which they “may not be well versed” – in order to effectively advise their clients. Id. at 1483.
The Court’s holding, however, affects not only defense attorneys, but also federal and state
prosecutors and judges, as well as other interested parties. This monograph is intended to assist
these parties in understanding the immigration consequences of an alien’s guilty plea in a criminal
case.
OIL regularly provides immigration law training to various Government components. If you
are interested in having OIL provide training for your office or organization at the state or federal
level you may contact:
Thomas W. Hussey, Director

David M. McConnell, Deputy Director
Francesco Isgro, Training Coordinator
Office of Immigration Litigation
450 Fifth Street, NW
Washington, D.C. 20001
Phone: 202-616-4877
francesco.isgro@usdoj.gov
Dis claimer: A ny views or opinions expres s ed by the authors in this document do not neces s arily reflect thos e of the
Department of Jus tice. The Department of Jus tice makes no claims , promis es or guarantees about the accuracy,
completenes s , or adequacy of the contents and expres s ly dis claims liability for errors and omis s ions . The document is
not intended to, does not, and may not be relied upon to create any s ubs tantive or procedural rights , privileges or benefits
enforceable at law by any party in any matter, adminis tra t iv e , c iv il or criminal. Likewis e, the document cannot be
cons trued to place any limitations on the lawful enforcement or litigative prerogatives of the United States Government.

Purpose and Use of the Monograph
I. Purpose of the Monograph
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that the Sixth
Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising
from a guilty plea. Defense counsel’s failure to so advise, or defense counsel’s misadvice regarding
the immigration consequences of the plea, may constitute ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). The Court held specifically that when the risk of
removal resulting from a guilty plea is “clear,” counsel must advise his or her client that “deportation
[is] presumptively mandatory”; on the other hand, when that risk is less clear, counsel need only
advise the defendant “that pending criminal charges may carry a risk of adverse immigration
consequences.” Padilla, 130 S. Ct. at 1483. The Court acknowledged that a “[l]ack of clarity in the
law . . . will affect the scope and nature of counsel’s advice.” Id. at 1483 n.10.
Applying these rules to Padilla’s claim, the Court concluded that “constitutionally competent
counsel would have advised him that his conviction for drug distribution made him subject to
automatic deportation.” Padilla, 130 S. Ct. at 1478. It observed that Padilla’s “is not a hard case
in which to find deficiency,” because the consequences of the plea “could easily be determined from
reading the removal statute,” which is “succinct, clear, and explicit in defining the removal
consequence for Padilla’s conviction,” and counsel’s advice was incorrect. Id. at 1483.
In light of Padilla, it is even more important than ever for prosecutors, defense counsel,
judges, and other interested parties at the federal and local levels to have a basic understanding of
the immigration consequences that flow from an alien’s guilty plea. This is true for at least three
reasons. First, going forward, knowledge of immigration consequences will ensure that defendants
enter knowing and intelligent pleas that will not be subject to challenge under Padilla. Second, a
basic understanding of immigration law will assist those litigating and evaluating challenges to
already-entered plea agreements based on the alleged failure to advise of the immigration
consequences. Third, as the Supreme Court noted in Padilla, “informed consideration of possible
deportation can only benefit both the State and noncitizen defendants during the plea-bargaining
process.” 130 S. Ct. at 1486. “By bringing deportation consequences into this process,” the parties
may not only preserve the finality of pleas, but may also negotiate better agreements on behalf of the
State and the noncitizen defendant. Id.
Accordingly, the Office of Immigration Litigation (“OIL”) has prepared this monograph to
provide a basic overview of the immigration consequences of a guilty plea. We emphasize that this
monograph does not attempt to provide an interpretation of the scope and applicability of Padilla.
Nor does it provide in-depth analyses of issues that arise under the Immigration and Nationality Act
(“INA”) and its implementing regulations, or a summary of immigration case law. Indeed,
administrative and judicial precedents on immigration matters are far from uniform, and determining

Revised November 2010 -i- of Criminal Convictions
what precedent to apply might be difficult because the removal proceeding may not be completed
in the same jurisdiction as the criminal proceeding. For these reasons, and because the Supreme
Court’s decision requires defense attorneys to advise aliens of the potential risks of immigration
consequences from the “terms of the relevant immigration statute,” Padilla, 130 S. Ct. at 1483, we
have focused our efforts on presenting a brief, cogent, and clear introduction that summarizes and
cites the relevant statutory provisions bearing on those consequences.
II. How to Use the Monograph
This monograph is organized in a way that makes it easy for the reader to use both as an
introduction to immigration consequences of criminal convictions, and as a resource for future
reference when specific issues arise. The opening section provides an overview of the removal
process and an introduction to relevant immigration terminology. This section covers basic
concepts, including how the Government places an alien in removal proceedings, what occurs during
such proceedings, and what happens after a final order of removal is issued against the alien. If the
reader is unfamiliar with this process, we recommend that he or she briefly review the opening
section.
For the reader who is preparing for a plea colloquy or a settlement negotiation, or who for
some other reason needs to evaluate the potential consequences of a particular crime, he or she
should consult Sections 2 and 3. These sections provide a framework for evaluating immigration
consequences, beginning with the most direct and immediate consequences.
Section 2 addresses when a conviction may trigger removal proceedings by summarizing the
criminal grounds of deportability and inadmissibility set forth in the INA. This includes the INA’s
classification of an “aggravated felony,” which constitutes a ground of deportability.
Commencement of immigration proceedings against an alien may be the most immediate and
significant consequence of a guilty plea. A federal or state conviction may trigger removal
proceedings rendering an alien defendant ineligible either (a) to remain in the United States, (b) to
be admitted into the United States, if he or she travels abroad, or (c) both. Therefore, the reader
should begin his or her analysis of immigration consequences here.
An alien found removable based on a crime may still be able to avoid removal through an
immigration agency adjudicator’s favorable grant of various forms of discretionary relief and
protection from removal. A conviction, however, may also render aliens ineligible for these forms
of relief and protection. Accordingly, it is important for the reader to be aware of these immigration
consequences. Section 3 of the monograph provides an overview of the various forms of
immigration “relief” and “protection” from removal in the INA (e.g., asylum, cancellation of
removal, adjustment of status), and sets forth the crimes that render an alien ineligible for such relief
and protection.
The plea consequence of ineligibility for relief or protection is particularly important for
aliens who are not currently in lawful immigration status. These aliens are already removable from

Revised November 2010 -ii- of Criminal Convictions
the United States for having entered the country illegally or for violating the terms of their visa or
on some other basis. The overview of relief and protection in Section 3 summarizes which classes
of aliens (lawful permanent residents, illegal aliens, etc.) are eligible for the various forms of relief
and protection.
In addition to triggering removability and ineligibility for relief, a plea may also have other
immigration consequences which are more attenuated. Section 4 describes these consequences,
which include restrictions on judicial review and readmission to the United States, ineligibility for
naturalization, mandatory detention, exposure to summary removal, and enhanced sentences for
criminal reentry. While it is unclear whether Padilla requires defense counsel to advise an alien of
these consequences, we include them so that the reader is aware of such consequences.
The reader who is determining the immigration consequences of a plea entered prior to the
Padilla decision should consult Section 5. This section provides an overview of the significant
amendments to the INA over the last few decades, including the creation and subsequent expansion
of the aggravated felony ground of removability and the enactment of criminal bars to eligibility for
immigration relief and protection. If courts conclude that Padilla’s holding applies retroactively to
enable aliens to challenge pre-Padilla pleas, the adequacy of defense counsel’s advice will be
determined in large part by an analysis of the law existing at the time of the plea. This section offers
a broad narrative of how that law has changed as it relates to the immigration consequences of a
guilty plea. We note that this section is not an exhaustive summary for every change in the INA over
the last few decades. The reader should also research the case law and legislative history.
Lastly, at the end of the monograph are detailed appendices that will provide the reader with
helpful tools for understanding immigration consequences and, more broadly, immigration law.
Appendix A contains a list of definitions of immigration terms that are used in the monograph.
Appendix B provides a detailed list of further resources for the reader, including primary sources,
secondary sources, internet resources, and other basic research tools. Appendix C contains the
definition and examples of what constitutes a conviction for immigration purposes. Appendix D
provides a quick reference guide to the method that is generally used for evaluating immigration
consequences of criminal convictions.
In sum, it is our hope that the monograph will serve as a useful tool for those who need to
quickly review the potential immigration consequences of a guilty plea.

Revised November 2010 -iii- of Criminal Convictions
Section 1: Overview of the Removal Process
I. Introduction
II. Removal Proceedings with a Hearing Before an Immigration Judge
A. Commencement
B. The Alien’s Rights
C. Resolving Removability Issues
1. Burdens of Proof
2. Procedure
D. Relief and Protection from Removal
E. Administrative Finality of a Removal Order
F. Enforcement of a Removal Order
G. Judicial Review
III. Removal Without a Hearing Before an Immigration Judge
A. Administrative Removal
B. Expedited Removal
C. Visa Waiver Program
D. Reinstatement of Removal
E. Judicial Removal
I. Introduction.
The procedures for determining whether an alien is to be removed from the United States are
set forth in the Immigration and Nationality Act (“INA”) and corresponding regulations. This
section provides a brief overview of those procedures.
The procedure used in a given case depends on the alien’s circumstances. Some classes of
aliens are not entitled to a hearing before an immigration judge and may be ordered removed by an
immigration enforcement officer. Most aliens, however, are entitled to an on-the-record proceeding
before an immigration judge, who is authorized to grant applications for relief and protection from
removal (which are described in Section 3). All immigration proceedings include the following
features: the proceeding is commenced by or with the consent of a relevant component of the United
States Department of Homeland Security (“DHS”) – either Immigration and Customs Enforcement
(“ICE”), Customs and Border Protection (“CBP”), or Citizenship and Immigration Services (“CIS”);
the alien is provided written notice of the grounds upon which the alien’s removal is sought, an
opportunity to address whether the charged grounds apply, and an opportunity to be considered for
protection from persecution and/or torture; and, when a removal order is enforced, the alien is
provided written notice of the consequences of illegally returning to the United States.

Revised November 2010 -1- of Criminal Convictions
II. Removal Proceedings with a Hearing Before an Immigration Judge.
At issue in a removal hearing is the alien’s right to remain in the United States.1 A removal
hearing has two phases – determining whether the alien is removable (inadmissible or deportable)
from the United States, and if so, determining whether the alien will be granted relief or protection
from removal. The hearing resembles a trial in many respects but is not a purely adversarial process.
Among other things, the immigration judge, a Department of Justice employee, is required to
consider whether a removable alien may be eligible for any form of relief or protection, and to advise
an alien when it appears he or she may be eligible. As described below, the allocation of the burdens
of proof will depend on the alien’s personal circumstances, and the stage of the proceeding. The
proceedings are not governed by the Federal Rules of Evidence.
A. Commencement. A removal proceeding commences when DHS files a charge that

an alien is deportable or inadmissible with the immigration court. At or before that
time, the alien is also served with the charging document. The charging document
is referred to as a Notice to Appear (“NTA”) or, in hearings commenced before April
1997, as an Order to Show Cause (“OSC”). The document refers to the statutory
provision(s) upon which removal is sought, and alleges the facts believed to underlie
the charge(s).
An alien is charged as “deportable” under statutory provisions in 8 U.S.C. § 1227(a)

when the alien is present in the United States pursuant to a prior admission.
“Admission” means lawful entry into the United States pursuant to authorization by
an immigration officer, following inspection. 8 U.S.C. § 1101(a)(13)(A). An alien
is charged as “inadmissible” under the statutory provisions in 8 U.S.C. § 1182(a)
when the alien is not present in the United States pursuant to a prior admission
(including when an alien is stopped at a port of entry, and when the alien is
apprehended in the interior of the United States). DHS in its prosecutorial discretion
may prioritize enforcement of the immigration laws. The more common criminal
grounds of deportability and inadmissibility are summarized in Section 2.
1
Before the enactment of Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), there were two distinct types of proceedings used to determine whether an
alien would be permitted to remain in the United States. An alien who had effected an “entry”
into the United States was placed into a “deportation proceeding” and charged with being
deportable; an alien who had not effected an “entry” was placed into an “exclusion proceeding”
and charged with being excludable. IIRIRA consolidated deportation proceedings and exclusion
proceedings into a single “removal proceeding.” IIRIRA also replaced the concept of “entry”
with “admission,” and substituted the term “inadmissible” for “excludable.”

B. The Alien’s Rights. An alien in civil immigration proceedings is not afforded the
same rights as a defendant in a criminal trial. The alien has a right to representation
at no expense to the Government, to an interpreter if necessary, to contact an attorney
or legal representative, and to communicate with a consular official from his or her
home country. See 8 U.S.C. § 1229a(b)(4); 8 C.F.R. §§ 1236.1(e) and 1240.3-
1240.10. The alien is also provided a list of free or low-cost legal service providers.
8 U.S.C. § 1229(b)(2). The alien is entitled to a reasonable opportunity to examine
the evidence against him or her, to present evidence on his or her own behalf, and to
cross-examine witnesses presented by the Government. 8 U.S.C. § 1229a(b)(4)(B).
C. Resolving Removability Issues.
1. Burdens of Proof.
• If an alien is an applicant for admission, he or she has the burden of

establishing that he or she is “clearly and beyond a doubt” entitled to
be admitted and is not inadmissible. 8 U.S.C. § 1229a(c)(2)(A).
• If the alien is not an applicant for admission, he or she has the burden
to demonstrate by “clear and convincing evidence” that he or she is
present pursuant to a prior admission. 8 U.S.C. § 1229a(c)(2)(B).
DHS then has the burden to establish that the alien is deportable as
charged by “clear and convincing evidence.” 8 U.S.C. § 1229a(c)(3).
2. Procedure.
• The immigration judge reads the charges of deportability or

inadmissibility to the alien, obtains confirmation that the alien
understands the charges, and then requires the alien to admit or deny
the charges.
• When removability depends on a conviction, DHS may prove the

charges by using documents from the criminal prosecution, such as
the judgment and charging instrument or other evidence. What
documents and evidence may be considered, and how they may be
used, is an important and commonly-litigated issue. See Appendix D
(The Method for Evaluating Immigration Consequences of Criminal
Convictions).
D. Relief and Protection from Removal. If the immigration judge concludes that the
alien is removable as charged, the immigration judge must then consider whether the
alien may be eligible for any relief or protection from removal. The alien bears the

burden not only of establishing eligibility, but also, where applicable, of persuading
the immigration judge to exercise discretion in favor of the alien. 8 U.S.C.
§ 1229a(c)(4)(A). Frequently requested forms of relief from removal, and related
protections from persecution and torture, are described in Section 3.
E. Administrative Finality of a Removal Order. Both an alien and DHS may appeal
the decision of an immigration judge to the Board of Immigration Appeals (“Board”),
an administrative appellate authority located in Falls Church, Virginia. Under the
Board’s case management system, cases involving aliens detained in ICE custody are
given priority. In general, a removal order becomes administratively final upon: (a)
waiver of the right to appeal; (b) expiration of the time for filing an appeal, without
an appeal having been filed; or (c) a decision from the Board affirming the order of
removability. See 8 U.S.C. § 1101(a)(47)(B).
F. Enforce me nt of a Removal Order. The final step in the removal process is the
enforcement of the removal order. Except in cases where the alien leaves the United
States, the alien is required to surrender for removal, and is transported to the
designated country of removal at the cost of the Government. At the time of
removal, the alien is also provided a written notice of the consequences of illegally
re-entering the United States. There are a number of bars to readmission, as well as
other consequences, that attach once an alien has been deported or leaves the country
under an order of removal. Those consequences are discussed in Section 4.
G. Judicial Review. An alien may also petition a federal appeals court to review a
Board decision within 30 days of that decision. 8 U.S.C. § 1252(a)(1) & (b)(1). The
venue for filing a petition for review lies with the court of appeals for the judicial
circuit in which the immigration judge completed the proceedings. 8 U.S.C.
§ 1252(b)(2). Because of statutory limits on judicial review, an alien ordered
removed because of certain criminal conduct may be able to receive judicial review
only of the determination that the alien is deportable or inadmissible and of certain
constitutional and legal claims. An alien may request a stay of removal, but if the
court does not grant the stay, DHS may enforce the removal order while the case is
pending and the alien must litigate the petition for review from abroad. If the court
concludes that the Board decision is erroneous after the removal order is enforced,
the alien will be permitted to return to the United States to obtain any remedy
required by the court.

III. Removal Without a Hearing Before an Immigration Judge.
The following classes of aliens are among those who are not entitled to a full removal hearing
before an immigration judge:
A. Administrative Removal. An alien who has not been lawfully admitted for
permanent residence to the United States or has permanent resident status on a
conditional basis, and has been convicted of an aggravated felony can be removed by
an administrative order issued by a designated DHS official. 8 U.S.C. § 1228(b).
B. Expedited Removal. An arriving or recently-arrived alien (i.e., an alien who has

been in the United States less than two weeks and is encountered within 100 miles
of the border) who has not been admitted to the United States and who lacks a valid
immigration document or who is inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)
(fraud or willful misrepresentation) can be removed by a designated DHS official.
8 U.S.C. § 1225(b); see also “Designating Aliens For Expedited Removal,” 69 Fed.
Reg. 48877, 48880 (Aug. 11, 2004).
C. Visa Waiver Program. Since 1986, aliens from specified countries have been
allowed to come to the United States for short periods of time without first obtaining
a tourist visa, provided that the alien waives any right to contest removal from the
United States, except for asylum. If an alien permitted entry through the visa waiver
program fails to depart, the alien may be removed by an administrative order issued
by a designated DHS official. 8 U.S.C. § 1187(a)-(b).
D. Reinstatement of Removal. An alien who has illegally re-entered the United States
after removal is not entitled to a hearing before an immigration judge. Instead, DHS
can reinstate the previous removal order, and enforce it. 8 U.S.C. § 1231(a)(5).
E. Judicial Removal. At the request of the United States Attorney, and with the
concurrence of DHS, a federal district court may enter an order of removal at the time
of sentencing. 8 U.S.C. § 1228(c).

Section 2: Consequences of Criminal Acts
Part A: Criminal Grounds of Removability
I. Introduction
II. Conviction-Related Removal Grounds
A. Crimes That Trigger Deportability
1. Controlled Substance Offenses
2. Crimes Involving Moral Turpitude
3. Multiple Moral Turpitude Convictions
4. Aggravated Felonies
5. Firearm and Destructive Device Convictions
6. Espionage, Sabotage, Treason, and Other Crimes
7. Crimes of Domestic Violence, Stalking, Child Abuse, Child
Abandonment, or Neglect
8. Failure to Register as a Sex Offender
9. Violating a Protective Order
10. High Speed Flight From an Immigration Checkpoint
11. Failure to Register or Falsification of Documents
B. Crimes That Trigger Inadmissibility
1. Crimes Involving Moral Turpitude
3. Multiple Criminal Convictions
III. Conduct-Related Removal Grounds (No Conviction Required)
A. Crimes Involving Moral Turpitude
B. Controlled Substance Offenses
C. Prostitution
D. Fraud or Misrepresentation
E. False Claim to United States Citizenship
F. Alien Smuggling
G. Marriage Fraud
H. Human Trafficking
I. Money Laundering
J. Espionage, Sabotage, and Treason
K. Terrorism
L. Alien With a Physical or Mental Disorder Who Poses Danger to Self or Others
M. Unlawful Voters
N. Polygamy
O. International Child Abduction
I. Introduction.
In the Immigration and Nationality Act (“INA”), Congress has provided grounds for an
alien’s removal based on various immigration violations, only some of which are related to criminal
activity. An alien, therefore, may be removable from the United States for reasons separate and apart
from having committed certain crimes. Even so, a removal action against an alien may be the most
immediate and significant consequence of a guilty plea. Thus, in evaluating the immigration
consequences of a plea, it is critical to determine whether the crime may make the defendant alien
removable. This section sets forth the more common criminal grounds of removal.
An alien’s removability for a crime depends on whether his or her state or federal conviction
fits within one or more classes of removable offenses identified in the INA. The INA separates
removal grounds into two categories: inadmissibility grounds codified at 8 U.S.C. § 1182(a) and
deportability grounds codified at 8 U.S.C. § 1227(a). Both inadmissible and deportable aliens are
referred to as “removable” aliens. The question of which category applies turns on whether the alien
has been admitted to the United States, i.e., whether the alien has made a lawful entry after
inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A). An alien who
has not been admitted to the United States is subject to removal based on one or more grounds of
inadmissibility. In contrast, an alien who has been admitted to the United States, and thereafter
commits a crime, may be subject to removal based on one or more grounds of deportability.
An alien’s removability based on a plea may also depend upon whether such a plea would
result in a “conviction,” as that term is defined in the INA. Deferred adjudications, for example, are
generally considered “convictions” for immigration purposes. See Appendix C (What Constitutes
A Conviction For Immigration Purposes). Also, any reference to a term of imprisonment or a
sentence in the INA includes the period of incarceration or confinement ordered by a court, as well
as any suspension of the imposition or execution of that term of imprisonment or sentence.
The INA also includes grounds of removal based on an alien’s criminal conduct alone,
regardless of whether there is a conviction. These grounds are generally based on: (1) an alien’s
admission that he or she committed a crime; or (2) a finding by immigration authorities that there
is reason to believe that an alien has engaged in criminal activity. Most of these grounds are set forth
as grounds of inadmissibility. While the reader should be most familiar with the conviction-based
grounds of removal, it is also important to be aware of the “non-conviction” grounds because:
• they often overlap or are similar to grounds that do require convictions, thus making
the issue potentially relevant in evaluating prejudice under a Strickland analysis.
• an alien’s guilty plea may not provide a ground of removal based on the conviction
but may do so based on the admitted conduct.

II. Conviction-Related Removal Grounds.
A. Crimes That Trigger Deportability.
The criminal grounds of deportability are found at 8 U.S.C. § 1227(a)(2).
1. Controlled Substance Offenses. The INA provides that any alien who at any
time after admission is convicted of a violation of (or a conspiracy or attempt
to violate) any law or regulation (foreign or domestic (federal or state))
relating to a controlled substance (as defined in schedules in 21 U.S.C. § 802)
is deportable.2 8 U.S.C. § 1227(a)(2)(B)(i). The only exception is for “a
single offense” of possession of 30 grams or less of marijuana for one’s own
use. A conviction for a drug paraphernalia offense may also “relate to” a
controlled substance violation under this provision.
2. Crimes Involving Moral Turpitude. Any alien convicted of a crime

involving moral turpitude (“CIMT”) is deportable, when the potential term
of imprisonment is one year or longer, and the offense was committed within
five years of the alien’s admission to the United States, or within ten years of
admission if the alien was granted lawful permanent resident status due to the
alien’s substantial contribution and assistance in a criminal investigation or
prosecution. 8 U.S.C. § 1227(a)(2)(A)(i); see also 8 U.S.C. § 1255(j). The
President of the United States or a Governor of any State may grant a full and
unconditional pardon to waive this ground of deportability. 8 U.S.C.
§ 1227(a)(2)(A)(vi).
• “Moral turpitude” is not defined in the INA. The Board and various
courts have recognized that moral turpitude generally refers to
conduct that is inherently dishonest, base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general.
• Offenses that may be morally turpitudinous include: murder,

voluntary manslaughter, kidnaping, mayhem, rape, fraud, spousal
abuse, child abuse, incest, assault with intent to commit another
specific intent offense, aggravated assaults, assaults on vulnerable
classes (e.g., children, the elderly, or the mentally disabled),
communication with a minor for immoral purposes, lewd and
lascivious conduct toward a child, knowing possession of child
pornography, driving under the influence without a license, theft
2
The full list of controlled substances in 21 U.S.C. § 802 is provided at
http://www.deadiversion.usdoj.gov/schedules/index.html.
offenses, robbery, receiving stolen goods with guilty knowledge,
forgery, embezzlement, extortion, perjury, and willful tax evasion.
Offenses that may fall outside the definition include: simple assault,
unlawful entry, damaging private property, escape, possession of an
altered or fraudulent document, and indecent exposure.
3. Multiple Moral Turpitude Convictions. Any alien who at any time after
admission is convicted of two or more CIMTs is deportable if the offenses do
not arise out of a single scheme of criminal misconduct. 8 U.S.C.
§ 1227(a)(2)(A)(ii). This ground of deportability does not require the
imposition of a sentence of confinement. The President of the United States
or a Governor of any State may grant a full and unconditional pardon to
waive this ground of deportability. 8 U.S.C. § 1227(a)(2)(A)(vi).
4. Aggravated Felonies. Any alien who is convicted of an aggravated felony

at any time after admission is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). The
§ 1227(a)(2)(A)(vi). This category of deportable offenses includes numerous
crimes and is covered specifically in part B of this section.
5. Firearm and Destructive Device Convictions. Any alien who at any time
after admission is convicted of purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or carrying (or of attempting or
conspiring to do any of the foregoing) any weapon, part, or accessory which
is a firearm or destructive device (as defined in 18 U.S.C. § 921) in violation
of any law is deportable. 8 U.S.C. § 1227(a)(2)(C).
6. Espionage, Sabotage, Treason, and Other Crimes. Any alien who at any
time has been convicted of committing, or conspiring or attempting to
commit espionage, sabotage, treason, and sedition for which a term of
imprisonment of five or more years may be imposed, or convicted of any
offense under 18 U.S.C. § 871 (threats against the President or his or her
successors) or 18 U.S.C. § 960 (expedition against friendly nation), or a
violation of the Military Selective Service Act or the Trading With The
Enemy Act, or a violation of 8 U.S.C. § 1185 (travel control of citizens and
aliens entering or departing the United States) or 8 U.S.C. § 1328
(importation of an alien for prostitution or other immoral purposes), is
deportable. 8 U.S.C. § 1227(a)(2)(D).
7. Crimes of Domestic Violence, Stalking, Child Abuse, Child Abandonment,

or Neglect. Any alien who at any time after admission is convicted of any
one of the following crimes is deportable: domestic violence, stalking, child
abuse, child neglect, or child abandonment. 8 U.S.C. § 1227(a)(2)(E)(i).
8. Failure To Register as a Sex Offender. Any alien who is convicted of
knowingly failing to register or update a registration as required by the Sex
Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250,
is deportable. 8 U.S.C. § 1227(a)(2)(A)(v).
9. Violating a Protective Order. Any alien who at any time after admission is
enjoined under a protective order issued by a court and whom the court
determines has engaged in conduct that violates a portion of the protective
order that involves protection against credible threats of violence, repeated
harassment, or bodily injury to the person or persons for whom the protective
order was issued, is deportable. 8 U.S.C. § 1227(a)(2)(E)(ii).
10. High Speed Flight From an Immigration Checkpoint. Any alien who is
convicted of violating 18 U.S.C. § 758 (relating to high speed flight from an
immigration checkpoint) is deportable. 8 U.S.C. § 1227(a)(2)(A)(iv). The
§ 1227(a)(2)(A)(vi).
11. Failure to Register or Falsification of Documents. Any alien who is

convicted under 8 U.S.C. § 1306(c) (relating to filing a registration
application with information known to be false or procuring, or attempting
to procure, registration through fraud) or section 36(c) of the Alien
Registration Act, 1940 (same), or of a violation of, or attempt or conspiracy
to violate the Foreign Agents Registration Act of 1938 (22 U.S.C. §§ 611 et
seq.) (requiring persons acting as agents of foreign principals in a political or
quasi-political capacity to make periodic public disclosure of their
relationship with the foreign principal, as well as activities, receipts and
disbursements in support of those activities) or 18 U.S.C. § 1546 (relating to
fraud and misuse of visas, permits, and other admission documents), is
deportable. 8 U.S.C. § 1227(a)(3)(B).
B. Crimes That Trigger Inadmissibility.
The criminal grounds of inadmissibility are found at 8 U.S.C. § 1182(a)(2).
1. Crimes Involving Moral Turpitude. An alien is inadmissible if he or she has

been convicted of a CIMT, or attempts or conspires to commit such a crime.
8 U.S.C. § 1182(a)(2)(A)(i)(I). There are two exceptions to this ground of
inadmissibility. 8 U.S.C. § 1182(a)(2)(A)(ii)(I) & (ii)(II). First, this ground
of inadmissibility does not apply to an alien who committed a CIMT when
he or she was under 18 years of age, and the crime was committed more than
5 years before the alien’s application for a visa or other entry document and

Revised November 2010 - 10 - of Criminal Convictions
the date of his or her application for admission to the United States. Second,
the ground does not apply to offenses for which the maximum possible term
of imprisonment was one year or less and the alien was not sentenced to more
than six months in prison. Also, a limited waiver for this ground of
inadmissibility may be granted by the Attorney General, in his or her
discretion, in certain circumstances. 8 U.S.C. § 1182(h) (discussed in detail
in Section 3).
2. Controlled Substance Offenses. An alien convicted of a violation of (or

conspiracy or attempt to violate) any controlled substance law or regulation
(foreign or domestic (federal or state)) is inadmissible. 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). A limited waiver for this ground of inadmissibility
may be granted by the Attorney General, in his or her discretion, for “a single
offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C.
§ 1182(h) (discussed in detail in Section 3). “Controlled substance” is
defined at 21 U.S.C. § 802. A conviction for a drug paraphernalia offense
may also fall within the “relating to” language in the controlled substance
provision.
3. Multiple Criminal Convictions. An alien convicted of two or more offenses

for which the aggregate sentences of confinement were 5 years or more is
inadmissible. 8 U.S.C. § 1182(a)(2)(B). A limited waiver for this ground of
inadmissibility may be granted by the Attorney General, in his or her
discretion, in certain circumstances. 8 U.S.C. § 1182(h) (discussed in detail
in Section 3).
III. Conduct-Related Removal Grounds (No Conviction Required).
As discussed above, there are certain grounds of removal (mostly set forth in the grounds of
inadmissibility) that are based on criminal conduct, but do not require a conviction. An alien who
engages in such conduct may, in DHS’ discretion, be placed in removal proceedings even if not
prosecuted criminally. These grounds are summarized below.
A. Crimes Involving Moral Turpitude. An alien who admits having committed a

CIMT (or attempting or conspiring to commit a CIMT), or who admits having
committed the essential elements of a CIMT (or of attempting or conspiring to
commit the essential elements of a CIMT), is inadmissible. 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). There are two exceptions – the juvenile and petty offense
exceptions – which are described above. 8 U.S.C. § 1182(a)(2)(A)(ii)(I) & (ii)(II).
Also, a limited waiver of this ground of inadmissibility may be granted by the
Attorney General, in his or her discretion, in certain circumstances. 8 U.S.C.
§ 1182(h) (discussed in detail in Section 3).

B. Controlled Substance Offenses.
• An alien who admits having committed a controlled substance offense (or

attempting or conspiring to commit such offense), or who admits having
committed the essential elements of a controlled substance offense (or of
attempting or conspiring to commit the essential elements of such offense),
is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(II). A limited discretionary
waiver of this ground of inadmissibility is available for “a single offense of
simple possession of 30 grams or less of marijuana.” 8 U.S.C. § 1182(h)
(discussed in detail in Section 3).
• Any alien who the consular officer or Attorney General knows or has reason
to believe is or has been an illicit trafficker in any controlled substance or in
any listed chemical (as defined in 21 U.S.C. § 802), is inadmissible. 8 U.S.C.
§ 1182(a)(2)(C)(i).
• Any alien who the consular officer or Attorney General knows or has reason
to believe is or has been a knowing aider, abettor, assister, conspirator, or
colluder with others in the illicit trafficking of any controlled or listed
substance or chemical, or endeavored to do so, is inadmissible. 8 U.S.C.
§ 1182(a)(2)(C)(i).
• Any alien who the consular officer or the Attorney General knows or has
reason to believe is the spouse, son, or daughter of an alien who is an illicit
trafficker of a controlled or listed substance or chemical (including an alien
who is an aider, abettor, assister, conspirator, or colluder with others in such
illicit trafficking), and the spouse, son, or daughter has obtained, within the
previous five years, any financial or other benefit from the illicit trafficking
activity, and the spouse, son, or daughter knew or reasonably should have
known that the financial or other benefit was the product of such illicit
activity, is inadmissible. 8 U.S.C. § 1182(a)(2)(C)(ii).
• Any alien who is determined by the immigration authorities to be a drug

abuser or addict is subject to removal under either a ground of inadmissibility
or deportability. 8 U.S.C. §§ 1182(a)(1)(A)(iv) and 1227(a)(2)(B)(ii) (drug
abuser or addict after admission into the United States).
C. Prostitution.
• Any alien who is coming to the United States solely, principally, or

incidentally to engage in prostitution, is inadmissible. 8 U.S.C.
§ 1182(a)(2)(D)(i).

• Any alien who has engaged in prostitution within ten years of the date of an
application for a visa, admission, or adjustment of status, is inadmissible.
8 U.S.C. § 1182(a)(2)(D)(i).
• Any alien who directly or indirectly procures, or attempts to procure, or

(within ten years of the date of an application for a visa, admission, or
adjustment of status) procured or attempted to procure or to import,
prostitutes or persons for the purpose of prostitution, is inadmissible.
8 U.S.C. § 1182(a)(2)(D)(ii).
• Any alien who receives or received within ten years of the date of an
application for a visa, admission, or adjustment of status, in whole or part, the
proceeds of prostitution, is inadmissible. 8 U.S.C. § 1182(a)(2)(D)(ii).
• Any alien who is coming to the United States to engage in any unlawful
commercialized vice, whether or not related to prostitution, is inadmissible.
8 U.S.C. § 1182(a)(2)(D)(iii).
• A limited waiver for these grounds of inadmissibility may be granted by the

Attorney General, in his or her discretion, in certain circumstances. 8 U.S.C.
§ 1182(h) (discussed in detail in Section 3).
D. Fraud or Misrepresentation.
• Any alien who, by fraud or willfully misrepresenting a material fact, seeks to

procure (or sought to procure or has procured) a visa, other documentation,
or admission into the United States or other immigration benefit, is
inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). A waiver of this ground of
inadmissibility may be granted in the discretion of the Attorney General in
the case of an alien who is the spouse, son, or daughter of a United States
citizen or of an alien lawfully admitted for permanent residence upon the
requisite showing of hardship. 8 U.S.C. § 1182(i).
• Under 8 U.S.C. § 1324c it is a crime for any person to knowingly engage in

various aspects of document fraud for the purpose of satisfying a requirement
or obtaining a benefit under the INA. Any alien who is the subject of a final
order for a violation of 8 U.S.C. § 1324c is inadmissible and deportable.
8 U.S.C. §§ 1182(a)(6)(F)(i) and 1227(a)(3)(C)(i). The Attorney General
may waive this ground of inadmissibility and deportability in the case of an
alien lawfully admitted for permanent residence if no civil monetary penalty
was imposed for violating section 1324c, and the offense was incurred solely
to assist, aid, or support the alien’s spouse or child. 8 U.S.C.
§§ 1182(a)(6)(F)(ii)and 1227(a)(3)(C)(ii).

E. False Claim to United States Citizenship. Any alien who falsely represents or has
falsely represented himself or herself to be a citizen of the United States for any
purpose or immigration benefit or any federal or state law is inadmissible and
deportable. 8 U.S.C. §§ 1182(a)(6)(C)(ii)(I) and 1227(a)(3)(D)(i). Representations
of citizenship made by an alien who reasonably believed that he or she was a citizen
at the time of the representations are excluded from this ground of inadmissibility
and deportability, so long as the alien’s natural parents are or were citizens and the
alien permanently resided in the United States prior to the age of sixteen. 8 U.S.C.
§§ 1182(a)(6)(C)(ii)(II) and 1227(a)(3)(D)(ii).
F. Alien Smuggling.
• Any alien who at any time knowingly has encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the United States
in violation of law is inadmissible. 8 U.S.C. § 1182(a)(6)(E)(i).
• Any alien who (prior to the date of entry, at the time of entry, or within five
years of the date of any entry) knowingly has encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the United States
in violation of law is deportable. 8 U.S.C. § 1227(a)(1)(E)(i).
• There is a limited exception for this ground of inadmissibility and

deportability on the basis of family reunification, 8 U.S.C.
§§ 1182(a)(6)(E)(ii) and 1227(a)(1)(E)(ii), and there is a limited waiver at the
discretion of the immigration authorities to assure family unity or when it is
in the public interest, 8 U.S.C. §§ 1182(a)(6)(E)(iii) and 1227(a)(1)(E)(iii).
But see 8 U.S.C. §§ 1227(a)(2)(D)(iv) and 1185(a)(2) (an alien convicted of
unlawfully transporting or attempting to transport another person from or into
the United States is deportable and no waiver or exception is available).
G. Marriage Fraud.
• An alien is deportable for having procured a visa or other documentation by

fraud (within the meaning of 8 U.S.C. § 1182(a)(6)(C)(i) (fraud or willful
misrepresentation of a material fact to procure a benefit)) and for being in the
United States in violation of 8 U.S.C. § 1227(a)(1)(B) (alien present in
violation of law) if:
• The alien is admitted into the United States with an immigrant visa
or other documentation procured on the basis of a marriage entered
into less than two years prior to such admission and the marriage is
judicially annulled or terminated within two years after any admission
to the United States. There is an exception for aliens who establish

to the satisfaction of the Attorney General that the marriage was not
contracted for the purpose of evading immigration laws. 8 U.S.C.
§ 1227(a)(1)(G)(i).
• The alien, as it appears to the satisfaction of the Attorney General,

failed or refused to fulfill the alien’s marital agreement which in the
opinion of the Attorney General was made for the purpose of
procuring the alien’s admission as an immigrant. 8 U.S.C.
§ 1227(a)(1)(G)(ii).
• A limited waiver exists for aliens who were “inadmissible at the time of
admission” based on fraud or misrepresentation, including marriage fraud as
described above. 8 U.S.C. § 1227(a)(1)(H).
• The waiver is available at the Attorney General’s discretion to any

alien (other than an alien who participated in Nazi persecution,
genocide, or the commission of any act of torture or extrajudicial
killing) who: (1) is the spouse, parent, son, or daughter of a United
States citizen or lawful permanent resident and (2) was in possession
of an immigrant visa or equivalent document and was otherwise
admissible except for those grounds at 8 U.S.C. § 1182(a)(5)(A)
(labor certification) & (a)(7)(A) (documentation requirements) which
were a direct result of that fraud or misrepresentation. 8 U.S.C.
§ 1227(a)(1)(H)(i).
• The waiver is also available at the Attorney General’s discretion to an

alien who is a Violence Against Women Act (“VAWA”) self-
petitioner. 8 U.S.C. § 1227(a)(1)(H)(ii).
H. Human Trafficking.
• Any alien who commits or conspires to commit human trafficking offenses

in or outside of the United States, or who the immigration authorities know
or have reason to believe is or has been a knowing aider, abettor, assister,
conspirator, or colluder with a human trafficker in severe forms of human
trafficking, is inadmissible. 8 U.S.C. § 1182(a)(2)(H)(i).
• Any alien that the immigration authorities know or have reason to believe is
the spouse, son, or daughter of an alien inadmissible under 8 U.S.C.
§ 1182(a)(2)(H)(i) is inadmissible, if, within the previous five years, the
spouse, son, or daughter benefitted financially or in some other way from the
illicit activity of his or her family member, and knew or reasonably should
have know that the benefit was the product of illicit activity. 8 U.S.C.

§ 1182(a)(2)(H)(ii). This ground does not apply to a son or daughter who
was “a child” at the time of receiving the benefit. 8 U.S.C.
§ 1182(a)(2)(H)(iii).
• In addition, any alien who is described as inadmissible under section

1182(a)(2)(H) is deportable. 8 U.S.C. § 1227(a)(2)(F).
I. Money Laundering. Any alien who the immigration authorities know or have reason
to believe has engaged, is engaging in, or seeks to enter the United States to engage
in, an offense relating to money laundering is inadmissible. 8 U.S.C.
§ 1182(a)(2)(I)(i). Similarly, any alien who the immigration authorities know is or
has been a knowing aider, abettor, assister, conspirator, or colluder with others in a
money laundering offense, is inadmissible. 8 U.S.C. § 1182(a)(2)(I)(ii).
J. Espionage, Sabotage, and Treason.
• Generally, any alien who seeks to enter the United States to engage in
espionage, sabotage, or treason, or who has been convicted of such
misconduct after admission is inadmissible or deportable.
• Any alien who the immigration authorities know or have reasonable

ground(s) to believe, is seeking to enter the United States to engage solely,
principally, or incidentally in espionage, sabotage, violating or evading any
law relating to the export control of goods, technology, or sensitive
information, or any activity a purpose of which is the opposition to, or the
control or overthrow of, the United States Government by force, violence, or
other unlawful means, is inadmissible. 8 U.S.C. § 1182(a)(3)(A).
• Any alien who has engaged, is engaged, or at any time after admission
engages in the foregoing activities or any other criminal activity which
endangers public safety or national security, is deportable. 8 U.S.C.
§ 1227(a)(4)(A); see also 8 U.S.C. § 1227(a)(2)(D)(i), (ii) & (iii) (conviction-
based ground of deportability discussed above).
K. Terrorism.
• Any alien who has engaged in terrorist activity, incited terrorist activity, is a
representative of a terrorist organization or a group that endorses or espouses
terrorist activity, is a member of a terrorist organization, endorses or espouses
or persuades others to engage in terrorist activity or support a terrorist
organization, or who the immigration authorities know or reasonably believe
is engaged in or is likely to engage after entry in any terrorist activity, is
inadmissible. 8 U.S.C. § 1182(a)(3)(B).

• A spouse or child of an alien inadmissible under this section is also
inadmissible if the activity occurred within the last 5 years. There is a limited
exception for a spouse or child who did not know or should not reasonably
have known of the terrorist activities or who has renounced the terrorist
activities to the satisfaction of the consular official or the Attorney General.
8 U.S.C. § 1182(a)(3)(B)(ii).
• Any alien who the Secretary of State or the Attorney General determines has
been associated with a terrorist organization and intends while in the United
States to engage in activities that could endanger the welfare, safety, or
security of the United States, is inadmissible. 8 U.S.C. § 1182(a)(3)(F).
• In addition, any alien who is described in 8 U.S.C. § 1182(a)(3)(B) & (F) is

deportable. 8 U.S.C. § 1227(a)(4)(B).
L. Alien With a Physical or Mental Disorder Who Poses Danger to Self or Others.
• Any alien who is determined to have a physical or mental disorder and

behavior associated with the disorder that may pose, or has posed a threat to
the alien or others, is inadmissible. 8 U.S.C. § 1182(a)(1)(A)(iii)(I). A
waiver of this ground of inadmissibility may be granted in the discretion of
the Attorney General. 8 U.S.C. § 1182(g)(3).
• Any alien who is determined to have had a physical or mental disorder and
a history of behavior associated with the disorder, which behavior has posed
a threat to the alien or others and which behavior is likely to recur or to lead
to other harmful behavior, is inadmissible. 8 U.S.C. § 1182(a)(1)(A)(iii)(II).
A waiver of this ground of inadmissibility may be granted in the discretion
of the Attorney General. 8 U.S.C. § 1182(g)(3).
M. Unlawful Voters. Any alien who voted in a federal, state, or local election in
violation of any federal, state, or local constitutional provision, statute, ordinance, or
regulation may be removable on either a ground of inadmissibility or deportability.
8 U.S.C. §§ 1182(a)(10)(D)(i) and 1227(a)(6)(A). Aliens who violate a lawful
restriction of voting to citizens are neither inadmissible nor deportable if the alien
reasonably believed that he or she was a citizen at the time of the unlawful voting,
so long as the alien’s natural parents are or were citizens and the alien permanently
resided in the United States prior to the age of sixteen. 8 U.S.C.
§§ 1182(a)(10)(D)(ii) and 1227(a)(6)(B).
N. Polygamy . Any alien coming to the United States to practice polygamy is

inadmissible. 8 U.S.C. § 1182(a)(10)(A).

O. International Child Abduction. Any alien who, in violation of a court’s custody
order relating to a United States citizen child, detains or retains the child, or
withholds custody of the child, outside the United States from the person granted
custody by the court is inadmissible until the child is surrendered to the person
granted custody. 8 U.S.C. § 1182(a)(10)(C)(i). Additionally, anyone known to have
intentionally assisted or to have provided material support or safe haven to such an
abductor is inadmissible. 8 U.S.C. § 1182(a)(10)(C)(ii)(I) & (II). A spouse, child,
parent, sibling, or agent of an alien inadmissible for child abduction is inadmissible
until the abducted child is surrendered to the person granted custody. 8 U.S.C.
§ 1182(a)(10)(C)(ii)(III). Among other exceptions, these provisions do not apply if
the child is abducted to a country that is a party to the Hague Convention. 8 U.S.C.
§ 1182(a)(10)(C)(iii).

Section 2: Consequences of Criminal Acts
Part B: Aggravated Felonies
I. Introduction
II. Aggravated Felony Removal Grounds
A. Murder, Rape, Sexual Abuse of a Minor Offenses
B. Illicit Trafficking in a Controlled Substance, Including a Drug Trafficking
Crime
C. Illicit Trafficking in Firearms, Destructive Devices, or Explosive Materials
D. Laundering of Monetary Instruments
E. Explosive Materials and Firearms Offenses
F. Crimes of Violence
G. Theft or Burglary Offenses
H. Crimes Relating to Ransom Demands or Receipt
I. Child Pornography
J. Racketeering and Gambling Offenses
K. Prostitution, Peonage, Slavery, Involuntary Servitude, and Trafficking in
Persons
L. Crimes Relating to National Defense Information, Classified Information,
Sabotage, Treason, and Protection of Undercover Agents
M. Fraud and Deceit Offenses
N. Alien Smuggling
O. Improper Entry or Ree ntry by an Alien Deported for an Aggravated Felony
P. Forging, Counterfeiting, Altering Passport or Similar Instrument
Q. Failure to Appear for Service of Sentence
R. Offense of or Relating to Commercial Bribery, Counterfeiting, or Trafficking
in Vehicles with Altered ID Number
S. Obstruction of Justice, Perjury, or Subornation
T. Failure to Appear Before a Court to Answer to a Charge of Felony
U. Attempt or Conspiracy to Commit an Aggravated Felony
I. Introduction.
As introduced in Part A of this section, the INA provides that an alien who is convicted of
an aggravated felony offense is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). “Aggravated felony” is
a term of art created by Congress to describe a discrete set of criminal offenses that subject an alien
convicted of such an offense to more serious immigration consequences. The INA sets forth a multi-

part definition of the term “aggravated felony,” which applies to violations of federal and state law
as well as violations “of the law of a foreign country for which the term of imprisonment was
completed within the previous 15 years.” 8 U.S.C. § 1101(a)(43).
As a general matter, an alien convicted of an aggravated felony offense (also referred to as

an “aggravated felon”) is statutorily ineligible for most forms of discretionary relief from removal,
including cancellation of removal and asylum, although the alien may, under certain narrow
circumstances, be eligible for adjustment of status and a waiver of inadmissibility under 8 U.S.C.
§ 1182(h). Notwithstanding an aggravated felony conviction, any alien may apply for deferral of
removal under the United Nations Convention Against Torture regulations if they fear torture upon
returning to their home country. Aliens might also be able to apply for withholding of removal if
they fear persecution upon removal and their aggravated felony conviction is not a “particularly
serious crime.” A conviction for an aggravated felony offense may subject the alien to expedited
removal procedures. 8 U.S.C. § 1228. Further, an aggravated felon deportee is permanently barred,
regardless of the date of the aggravated felony conviction, from readmission to the United States,
unless the Attorney General has consented to the alien reapplying for admission. 8 U.S.C.
§ 1182(a)(9)(A).
II. Aggravated Felony Removal Grounds.
The “aggravated felony” ground of deportability is found at 8 U.S.C. § 1227(a)(2)(A)(iii).

The term “aggravated felony” is defined at 8 U.S.C. § 1101(a)(43), and the various aggravated felony
offenses are enumerated in subsections A-U.
A. Murder, Rape, Sexual Abuse of a Minor Offenses. 8 U.S.C. § 1101(a)(43)(A)

provides that “murder,” “rape” and “sexual abuse of a minor” are aggravated
felonies. The INA provides no definition or cross- reference to another part of the
United States Code for these terms.
B. Illicit Trafficking in a Controlled Substance, Including a Drug Trafficking Crime.

8 U.S.C. § 1101(a)(43)(B) provides that illicit trafficking in a “controlled substance”
(as defined in 21 U.S.C. § 802) is an aggravated felony. “Illicit trafficking” is not
otherwise defined. The offense also includes a “drug trafficking crime” (as defined
in 18 U.S.C. § 924(c)).
• “Drug trafficking crime” is defined as “any felony punishable under the

Controlled Substances Act (21 U.S.C. 801, et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951, et seq.), or chapter 705 of
title 46.”
• “Trafficking” means some sort of commercial dealing. Lopez v. Gonzales,

549 U.S. 47, 53 (2006).

• A state offense constitutes a felony punishable under the Controlled
Substances Act only if it proscribes conduct that is punishable as a felony
under federal law. Lopez, 549 U.S. at 60.
• A second or subsequent simple possession offense constitutes a felony under

the Controlled Substances Act only if the conviction has been enhanced based
on the fact of a prior conviction. Carachuri-Rosendo v. Holder, 130 S. Ct.
2577, 2589 (2010).
• “Controlled substance” means a drug or other substance, or immediate

precursor, included in schedule I, II, III, IV, or V of part B of subchapter I (21
U.S.C. §§ 811-814). 21 U.S.C. § 802.3
C. Illicit Trafficking in Firearms, Destructive Devices, or Explosive Materials.

8 U.S.C. § 1101(a)(43)(C) provides that “illicit trafficking in firearms or destructive
devices (as defined in [18 U.S.C. § 921]) or in explosive materials (as defined in [18
U.S.C. § 841(c)])” is an aggravated felony.
D. Laundering of Monetary Instruments. 8 U.S.C. § 1101(a)(43)(D) provides that “an

offense described in [18 U.S.C. § 1956] (relating to laundering of monetary
instruments) or [18 U.S.C. § 1957] (relating to engaging in monetary transactions in
property derived from specific unlawful activity)” is an aggravated felony “if the
amount of the funds exceeded $10,000.”
E. Explosive Materials and Firearms Offenses. 8 U.S.C. § 1101(a)(43)(E) provides

that an offense described in:
(i) 18 U.S.C. § 842(h) or (i), or 18 U.S.C. §§ 844(d), (e), (f), (g),

(h), or (i) “(relating to explosive materials offenses);”
(ii) 18 U.S.C. § 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or
(r) or 18 U.S.C. § 924(b) or (h) “(relating to firearms
offenses);” or
(iii) 26 U.S.C. § 5861 “(relating to firearms offenses)”
is an aggravated felony.
3
The full list of controlled substances in 21 U.S.C. § 802 is provided at
http://www.deadiversion.usdoj.gov/schedules/index.html.

F. Crimes of Violence. 8 U.S.C. § 1101(a)(43)(F) provides that “a crime of violence
(as defined in [18 U.S.C. § 16], but not including a purely political offense) for which
the term of imprisonment [is] at least one year” is an aggravated felony.
• 18 U.S.C. § 16 defines a “crime of violence” as “(a) an offense that has as an

element the use, attempted use, or threatened use of physical force against the
person or property of another, or (b) any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.”
• 18 U.S.C. § 16(b) requires a higher mens rea than merely accidental or

negligent conduct. Leocal v. Ashcroft, 543 U.S. 1, 11 (2004).
G. Theft or Burglary Offenses. 8 U.S.C. § 1101(a)(43)(G) provides that “a theft

offense (including receipt of stolen property) or burglary offense for which the term
of imprisonment [is] at least one year” is an aggravated felony.
• The INA provides no definition or cross-reference to another part of the

United States Code to define “a theft offense,” “receipt of stolen property,”
or “burglary offense.”
• The generally accepted judicial definition of burglary is: an unlawful or

unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.
• The generally accepted judicial definition of theft is: the taking of property
or an exercise of control over property without consent with the criminal
intent to deprive the owner of rights and benefits of ownership, even if such
deprivation is less than total or permanent.
H. Crimes Relating to Ransom Demands or Receipt. 8 U.S.C. § 1101(a)(43)(H)

provides that “an offense described in” 18 U.S.C. §§ 875, 876, 877, or 1202
“(relating to the demand for or receipt of ransom)” is an aggravated felony.
I. Child Pornography. 8 U.S.C. § 1101(a)(43)(I) provides that “an offense described

in [18 U.S.C. §§ 2251, 2251A, or 2252] (relating to child pornography)” is an
aggravated felony.
J. Racketeering and Gambling Offenses. 8 U.S.C. § 1101(a)(43)(J) provides that “an

offense described in [18 U.S.C. § 1962] (relating to racketeer influenced corrupt
organizations), or an offense described in [18 U.S.C. § 1084] (if it is a second or
subsequent offense) or [18 U.S.C. § 1955] (relating to gambling offenses), for which

a sentence of one year imprisonment or more may be imposed” is an aggravated
felony.
K. Prostitution, Peonage, Slavery, Involuntary Servitude, and Trafficking in Persons.

8 U.S.C. § 1101(a)(43)(K) provides an offense that:
(i) “relates to the owning, controlling, managing, or supervising

of a prostitution business;”
(ii) “is described in [18 U.S.C. §§ 2421, 2422, or 2423] (relating

to transportation for the purpose of prostitution) if committed
for commercial advantage; or”
(iii) “is described in any of [18 U.S.C. §§ 1581- 1585 or

1588-1591] (relating to peonage, slavery, involuntary
servitude, and trafficking in persons)”
L. Crimes Relating to National Defense Information, Classified Information,

Sabotage, Treason, and Protection of Undercover Agents. 8 U.S.C.
§ 1101(a)(43)(L) provides that an offense described in 18 U.S.C. § 793 “(relating to
gathering or transmitting national defense information), [18 U.S.C. § 798] (relating
to disclosure of classified information), [18 U.S.C. § 2153] (relating to sabotage) or
[18 U.S.C. §§ 2381 or 2382] (relating to treason),” or 50 U.S.C. § 421 (relating to
protecting the identity of undercover agents and undercover intelligence agents), is
an aggravated felony.
M. Fraud and Deceit Offenses . 8 U.S.C. § 1101(a)(43)(M) provides “an offense that
– (i) involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000; or (ii) is described in [26 U.S.C. § 7201] (relating to tax evasion) in which
the revenue loss to the Government exceeds $10,000” is an aggravated felony.
• The $10,000 loss requirement need not be an element of the statute under
which the alien was convicted. Nijhawan v Holder, 129 S. Ct. 2294, 2298
(2009).
N. Alien Smuggling. 8 U.S.C. § 1101(a)(43)(N) provides that “an offense described in

[8 U.S.C. § 1324(a)(1)(A) or (2)] (relating to alien smuggling)” is an aggravated
felony “except in the case of a first offense for which the alien has affirmatively
shown that the alien committed the offense for the purpose of assisting, abetting, or
aiding only the alien’s spouse, child, or parent (and no other individual) to violate a
provision of” the immigration laws.

O. Improper Entry or Reentry by an Alien Deported for an Aggravated Felony.
8 U.S.C. § 1101(a)(43)(O) provides that “an offense described in [8 U.S.C.
§§ 1325(a) or 1326] committed by an alien who was previously deported on the basis
of a conviction for an offense described in another subparagraph of this paragraph”
• 8 U.S.C. § 1325(a) relates to entering or attempting to enter the United States

at the improper time or place, eluding examination or inspection by
immigration officials, or entering or attempting to enter the United States
through misrepresentation or concealment of a material fact.
• 8 U.S.C. § 1326 relates to the reentry of removed aliens.
P. Forging, Counterfeiting, Altering Passport or Similar Instrument. 8 U.S.C.

§ 1101(a)(43)(P) provides that “an offense (i) which either is falsely making, forging,
counterfeiting, mutilating, or altering a passport or instrument in violation of [18
U.S.C. § 1543] or is described in [18 U.S.C. § 1546(a)] (relating to document fraud)
and (ii) for which the term of imprisonment is at least 12 months” is an aggravated
felony “except in the case of a first offense for which the alien has affirmatively
shown that the alien committed the offense for the purpose of assisting, abetting, or
aiding only the alien’s spouse, child, or parent (and no other individual) to violate a
provision of” the immigration laws.
Q. Failure to Appear for Service of Sentence. 8 U.S.C. § 1101(a)(43)(Q) provides that

“an offense relating to a failure to appear by a defendant for service of sentence if the
underlying offense is punishable by imprisonment for a term of 5 years or more” is
an aggravated felony.
R. Offense of or Relating to Commercial Bribery, Counterfeiting, or Trafficking in

Vehicles with Altered ID Number. 8 U.S.C. § 1101(a)(43)(R) provides that “an
offense relating to commercial bribery, counterfeiting, forgery, or trafficking in
vehicles the identification numbers of which have been altered for which the term of
imprisonment is at least one year” is an aggravated felony.
S. Obstruction of Justice, Perjury, or Subornation. 8 U.S.C. § 1101(a)(43)(S)

provides that “an offense relating to obstruction of justice, perjury or subornation of
perjury, or bribery of a witness, for which the term of imprisonment is at least one
year” is an aggravated felony.
T. Failure to Appear Before a Court to Answer to a Charge of Felony. 8 U.S.C.

§1101(a)(43)(T) provides that “an offense relating to a failure to appear before a
court pursuant to a court order to answer to or dispose of a charge of a felony for

which a sentence of 2 years’ imprisonment or more may be imposed” is an
aggravated felony.
U. Attempt or Conspiracy to Commit an Aggravated Felony. 8 U.S.C.

§ 1101(a)(43)(U) provides that “an attempt or conspiracy to commit an offense
described in this paragraph [8 U.S.C. § 1101(a)(43)]” is also an aggravated felony.

Section 3: Relief and Protection From Removal
Part A: Discretionary Relief
I. Introduction
II. Discretionary Relief Conferring Lawful Status
A. Cancellation of Removal for Permanent Resident Aliens and Non-Permanent
Resident Aliens
1. Qualifying for Cancellation
2. Criminal Bars to Cancellation
3. Other Bars to Cancellation
B. Adjustment or Re-Adjustment of Status
1. Qualifying for Adjustment or Re-Adjustment of Status
2. Criminal Bars to Adjustment or Re-Adjustment of Status
3. Other Bars to Adjustment of Status
C. Adjustment of Status for Asylees and Refugees Under 8 U.S.C. § 1159
1. Qualifying for Adjustment of Status Under 8 U.S.C. § 1159
2. Criminal Bars to Adjustment of Status Under 8 U.S.C. § 1159
D. Waiver of Inadmissibility Under 8 U.S.C. § 1182(h)
1. Qualifying for Section 212(h) Waiver
2. Classes of Criminal Activity Whos e Consequences May Be Waived
Under Section 212(h)
3. Criminal Bars to Section 212(h) Waiver
III. Discretionary Relief Not Conferring Lawful Status
A. Temporary Protected Status
1. Limits on Applying for Temporary Protected Status
2. Bars to Temporary Protected Status
B. Voluntary Departure
1. Pre-Hearing Voluntary Departure
2. Post-Hearing Voluntary Departure
3. Consequences of Failing to Comply with Grant of Voluntary Departure
I. Introduction.
An alien who is inadmissible or deportable may avoid removal from the United States by
being granted discretionary relief from removal. The Attorney General and the Secretary of
Homeland Security are authorized by Congress to grant several forms of relief, and they have
delegated that authority to lower officials. An alien’s criminal conduct and resulting guilty plea may

prevent him or her from qualifying for, or being granted, relief. This section outlines the most
common forms of relief from removal that may provide the alien with lawful status to remain in the
United States and sets forth the requirements that must be met to obtain the relief and the
circumstances that bar an alien from obtaining relief. The section also includes other common forms
of discretionary protection that do not provide an alien with lawful status. While it is unclear
whether Padilla requires defense counsel to advise an alien if a plea may make the alien ineligible
for these grounds of relief from removal, we include them for the reader’s information.
All of the forms of relief discussed in this section are discretionary, which means that the
applicant must convince the adjudicator that discretion should be exercised in favor of the applicant.
For some forms of relief, the adjudicator may be guided by special policies. As a general matter,
however, the adjudicator decides whether to exercise discretion by balancing the positive equities
shown by the applicant against any adverse factors. Adverse factors include such matters as the
alien’s criminal activities or convictions, and violations or evasions of immigration law or other
laws. Positive equities include the applicant’s length of residence in the United States, family and
personal ties in the United States, honorable military or maritime service, reputation and integration
into the community, and good conduct and accomplishments while in the United States.
II. Discretionary Relief Conferring Lawful Status.
A. Cancellation of Removal for Permanent Resident Aliens and Non-Permanent

Resident Aliens. Cancellation of removal is a one- time forgiveness of grounds of
deportability or inadmissibility for certain lawful permanent resident (“LPR”) aliens.
An alien who is not a LPR may also apply for cancellation and obtain LPR status if
he or she meets a more stringent set of eligibility requirements. Specific cancellation
of removal provisions offering relaxed eligibility standards have been enacted for the
benefit of certain classes of aliens, including battered children and spouses, see 8
U.S.C. § 1229b(b)(2), and aliens from Guatemala and El Salvador, see Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160,
2193 (1997), as amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997).
1. Qualifying for Cancellation.
• Lawful Permanent Residents. An alien who is a LPR must show at

least seven continuous years of residence in the United States
following an admission in any status, plus five years of lawful
permanent resident status. The commission of a crime that renders
the alien deportable or inadmissible under 8 U.S.C. §§ 1182(a)(2),
1227(a)(2) or (a)(4), or the service of a charging document alleging
that the alien is inadmissible or deportable interrupts a period of
residence. 8 U.S.C. § 1229b(a) & (d)(1).

• Non-Lawful Permanent Residents. An alien who is not a LPR must
meet stringent requirements before being considered for a grant of
cancellation of removal. Those requirements, set forth in 8 U.S.C.
§ 1229b(b)(1), include a showing of:
• A period of 10 years of continuous physical presence (the

commission of a crime that renders the alien deportable or
inadmissible under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2) or
(a)(4), or the service of a charging document alleging that the
alien is inadmissible or deportable interrupts a period of
residence);
• A period of 10 years of “good moral character;” and
• “[E]xceptional and extremely unusual” hardship to the alien’s

parent(s), spouse, or child(ren) who are themselves either
United States citizens or LPR aliens.
2. Criminal Bars to Cancellation.
• Lawful Permanent Residents . To qualify for cancellation of

removal, a LPR alien is required to prove that he or she has not been
convicted of an aggravated felony, as defined at 8 U.S.C.
§ 1101(a)(43), and is not inadmissible or deportable for security and
related grounds under 8 U.S.C. §§ 1182(a)(3) and 1227(a)(4). 8
U.S.C. § 1229b(a)(3) & (c)(4).
• Non-Lawful Permanent Residents. To qualify for cancellation of

removal, an applicant who is not a LPR is required to prove that he
or she has not been convicted of an offense under 8 U.S.C.
§§ 1182(a)(2) (criminal and related grounds), 1227(a)(2) (criminal
offenses), or 1227(a)(3) (failure to register and falsification of
documents), and is not inadmissible or deportable for security and
related grounds under 8 U.S.C. §§ 1182(a)(3) and 1227(a)(4). 8
U.S.C. § 1229b(b)(1)(C) & (c)(4).
• Good Moral Character. Non-LPRs must demonstrate that they are

persons of good moral character to be eligible for cancellation of
removal. Whether an applicant possesses “good moral character” is
a discretionary determination. The statute does not define good moral
character; rather, it sets forth a non-exclusive list of circumstances
that foreclose a finding of good moral character. 8 U.S.C. § 1101(f).
A catchall provision makes clear that these per se rules are not

exclusive: “The fact that any person is not within any of the
foregoing classes shall not preclude a finding that for other reasons
such person is or was not of good moral character.” Pursuant to 8
U.S.C. § 1101(f), the following criminal acts preclude an alien from
establishing good moral character if committed within the required
period:
• At any time convicted of an aggravated felony (as defined in

8 U.S.C. § 1101(a)(43)), 8 U.S.C. § 1101(f)(8);
• Crimes involving moral turpitude (whether inadmissible or

not, described in 8 U.S.C. § 1182(a)(2)(A)(i)(I)), 8 U.S.C.
§ 1101(f)(3);
• Controlled substance violations, except as it relates to a single

offense of simple possession of 30 grams or less of marijuana
(whether inadmissible or not, described in 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) & (a)(2)(C)), 8 U.S.C. § 1101(f)(3);
• Multiple convictions resulting in cumulative sentences of at

least five years’ imprisonment (whether inadmissible or not,
described in 8 U.S.C. § 1182(a)(2)(B)), 8 U.S.C. § 1101(f)(3);
• Prostitution and commercialized vice (whether inadmissible

or not, described in 8 U.S.C. § 1182(a)(2)(D)), 8 U.S.C.
§ 1101(f)(3);
• Alien smuggling (whether inadmissible or not, described in 8

U.S.C. § 1182(a)(6)(E)), 8 U.S.C. § 1101(f)(3);
• Polygamy (whether inadmissible or not, described in 8 U.S.C.

§ 1182(a)(10)(A)), 8 U.S.C. § 1101(f)(3);
• Habitual drunkard, 8 U.S.C. § 1101(f)(1);
• Any individual “whose income is derived principally from

illegal gambling activities,” 8 U.S.C. § 1101(f)(4);
• Any individual convicted of two or more gambling offenses,

8 U.S.C. § 1101(f)(5);
• Any individual who has given false testimony in order to

obtain an immigration benefit, 8 U.S.C. § 1101(f)(6);

• Any individual who has been imprisoned for an aggregate
period of 180 days during the time in which he or she has to
establish good moral character, regardless of when the offense
or offenses for which he or she was incarcerated were
committed, 8 U.S.C. § 1101(f)(7);
• Any individual who, at any time as a foreign government

official, was responsible for a “particularly severe violation of
religious freedom” (as described in 8 U.S.C. § 1182(a)(2)(G)),
8 U.S.C. § 1101(f)(9);
• Any individual who, at any time, participated in Nazi

persecution, genocide, torture, or extrajudicial killing (as
described in 8 U.S.C. § 1182(a)(3)(E)), 8 U.S.C. § 1101(f)(9).
3. Other Bars to Cancellation. An alien is ineligible for cancellation of

removal if the alien was previously granted cancellation of removal,
suspension of deportation under 8 U.S.C. § 1254 (repealed), or a waiver
under 8 U.S.C. § 1182(c) (repealed). 8 U.S.C. § 1229b(c)(6).
B. Adjustment or Re-Adjustme nt of Status. Through an adjustment or re-adjustment

of status, an alien present in the United States can obtain, or (in the case of re-
adjustment) be permitted to retain, LPR status. In general, adjustment of status refers
to the procedure for obtaining LPR status without having to leave the United States
for consular processing abroad and then applying for admission as a LPR through a
port of entry. 8 U.S.C. § 1255. Re-adjustment of status refers to a grant of
adjustment of status to an alien who is already a LPR, principally to avoid grounds
of deportability that are not also grounds of inadmissibility, such as a firearms
offense or certain aggravated felonies. Specific adjustment provisions have been
enacted for the benefit of certain classes of aliens from specific countries, including
Cambodia (1989) (2000), the People’s Republic of China, Cuba, Haiti, Laos (1989)
(2000), Nicaragua, the former Soviet Union, Syria, and Vietnam (1989) (2000).
Generally, adjustment of status under any of these country-specific provisions
requires physical presence in the United States on or before a fixed date.
1. Qualifying for Adjustment or Re -Adjustment of Status. Adjustment of

status requires an applicant to establish that an immigrant visa is immediately
available to him or her. As a practical matter, this means that the alien must
be the beneficiary of an approved petition for an immigrant visa, be able to
show that the visa number is current, and that the alien is not inadmissible
under any provision of law. To qualify for adjustment or re-adjustment under
the general adjustment of status provision, 8 U.S.C. § 1255(a), the alien must
have been inspected and admitted or paroled into the United States, rather

than having entered illegally. Adjustment under 8 U.S.C. § 1255(i), enacted
in 1994 and amended several times, is available irrespective of the form of
the alien’s entry, but is limited to aliens who are beneficiaries of a visa
petition or application for labor certification (in most cases, the first filing
required for an employment-based immigration preference) filed on or before
April 30, 2001.
2. Criminal Bars to Adjustment or Re-Adjustment of Status. Because

eligibility for adjustment of status requires the alien to be admissible, any
crime that renders an alien inadmissible also makes the alien ineligible for
adjustment of status, unless the alien is eligible for and can obtain a waiver
of the inadmissibility ground. See Section 2, part A (addressing the criminal
grounds of inadmissibility).
3. Other Bars to Adjustment of Status. Subject to narrow exceptions, an

alien is barred from being granted adjustment of status for a period of 10
years from the date of entry of an in absentia order of removal. 8 U.S.C.
§ 1229a(b)(7). An alien is also barred from being granted adjustment of
status for a period of 10 years from the date that the alien fails to depart the
United States in accordance with any grant of voluntary departure. 8 U.S.C.
§ 1229c(d)(1)(B). An alien may also be barred from adjusting status if he or
she entered the United States through a visa waiver program. 8 U.S.C.
§§ 1187(b)(2) and 1255(c)(4). An alien deportable under 8 U.S.C.
§ 1227(a)(4)(B) (terrorist activities) may also be ineligible for adjustment of
status. 8 U.S.C. § 1255(c)(6).
C. Adjustment of Status for Asylees and Refugees Under 8 U.S.C. § 1159. An alien
admitted to the United States as a refugee or granted asylum while in the United
States may obtain LPR status.
1. Qualifying for Adjustment of Status Under 8 U.S.C. § 1159. Adjustment

of status under this provision requires, among other things, that an alien
admitted as a refugee or granted asylum be physically present in the United
States for at least one year and otherwise be admissible. An alien admitted
as a refugee who has already acquired LPR status is not eligible to readjust.
8 U.S.C. § 1159(a)(1)(C). An alien granted asylum is not eligible to adjust
unless he or she continues to be a refugee within the meaning of 8 U.S.C.
§ 1101(a)(42)(A) and has not firmly resettled in a foreign country. 8 U.S.C.
§ 1159(b).
2. Criminal Bars to Adjustment of Status Under 8 U.S.C. § 1159. Because

eligibility for adjustment of status under this provision requires the alien to
be admissible, any crime that renders an alien inadmissible also makes the

alien ineligible for adjustment of status. Most grounds of inadmissibility
either do not apply to aliens seeking to adjust under 8 U.S.C. § 1159 or can
be waived for humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest. 8 U.S.C. § 1159(c). Aliens inadmissible for
offenses relating to illicit trafficking in a controlled substance under 8 U.S.C.
§ 1182(a)(2)(C) or offenses relating to national security, terrorism, Nazi
persecution, torture, extrajudicial killings, and genocide under 8 U.S.C.
§ 1182(a)(3)(A), (B), (C), & (E) are not eligible for a waiver. 8 U.S.C.
§ 1159(c).
D. Waiver of Inadmissibility Unde r 8 U.S.C. § 1182(h). Pursuant to 8 U.S.C.

§ 1182(h), INA § 212(h) (“section 212(h)”), the Attorney General or Secretary may
waive the application of particular grounds of inadmissibility in 8 U.S.C. § 1182,
including inadmissibility resulting from criminal conduct. A grant of a section
212(h) waiver, by itself (in the case of certain LPRs seeking admission) or in
conjunction with a grant of adjustment of status or re-adjustment of status, may
permit an alien to avoid removal based on convictions for particular types of crimes
when those crimes are also grounds of inadmissibility.
1. Qualifying for Section 212(h) Waiver. An alien may qualify for a section
212(h) waiver in a variety of ways, but the most common is where the alien
is the spouse, parent, son, or daughter of a citizen of the United States or an
alien lawfully admitted for permanent residence, and the alien establishes that
denying him or her admission to the United States would result in extreme
hardship to such person(s). See 8 U.S.C. § 1182(h)(1)(A)-(C). For an alien
previously admitted to the United States as a LPR to qualify for a section
212(h) waiver, he or she must have resided continuously in the United States
for a period of at least 7 years immediately preceding the date of initiation of
removal proceedings.
2. Classes of Criminal Activity Whos e Consequences May Be Waived

Under Section 212(h). A section 212(h) waiver may be used to waive
application of grounds of inadmissibility stemming from crimes involving
moral turpitude, multiple criminal convictions resulting in cumulative
sentences of at least five years’ imprisonment, prostitution and
commercialized vice- related activities, and assertions of immunity from
prosecution. The waiver also applies to grounds of inadmissibility based on
a conviction for violating a law relating to a controlled substance, but the
waiver is limited to a single offense of simple possession of 30 grams or less
of marijuana.

3. Criminal Bars to Section 212(h) Waiver. An alien may not be granted a
section 212(h) waiver if he or she has been convicted of, or admitted
committing or conspiring to commit, acts that constitute murder or criminal
acts involving torture. An alien may also not be granted a section 212(h)
waiver if he or she was previously admitted to the United States as a LPR
alien and, since the date of admission, has been convicted of an aggravated
felony.
III. Discretionary Relief Not Conferring Lawful Status.
A. Temporary Protected Status. Temporary protected status (“TPS”) stays or delays

an alien’s removal for six to eighteen months if his or her home country has been
designated by the United States Government to be unsafe due to armed conflict,
natural disaster, or extraordinary temporary conditions. 8 U.S.C. § 1254a. Countries
whose nationals are eligible for TPS are published in the Federal Register. An alien
granted TPS may not be deported during the authorized time period and can obtain
employment authorization.
1. Limits on Applying for Temporary Protected Status. An alien may not

apply for TPS unless he or she has been in the United States continuously
since his or her home country was designated for that status. 8 U.S.C.
§ 1254a(c)(1)(A).
2. Bars to Temporary Protected Status. The following classes of aliens are

ineligible for TPS:
• An alien who is inadmissible to the United States. Most grounds of

inadmissibility can be waived for humanitarian purposes, to ensure
family unity, or when otherwise in the public interest. Several
grounds, however, may not be waived, including a crime involving
moral turpitude, a controlled substance offense, two or more offenses
with an aggregate sentence of 5 years or more, a drug trafficking
offense (with a limited exception), or offenses relating to national
security. 8 U.S.C. § 1254a(c)(2)(A).
• An alien who has been convicted of any felony or of two or more

misdemeanors. 8 U.S.C. § 1254a(c)(2)(B).
B. Voluntary Departure. If an alien is inadmissible or deportable from the United

States, the alien may request, either prior to the conclusion of the removal
proceedings or at the conclusion of the proceedings, the privilege of departing the
United States voluntarily at his or her own expense. 8 U.S.C. § 1229c. Opting for
voluntary departure over removal has several advantages, including that the alien

may choose (within limits) the time and manner of departure and the destination to
which the alien will travel. One of the most significant advantages is that the alien
will not be subjected to a bar on readmission that applies to aliens who are deported.
See 8 U.S.C. § 1182(a)(9)(A).
1. Pre-Hearing Voluntary Departure. If an alien requests voluntary departure

prior to the completion of proceedings, an immigration judge may grant up
to 120 days of voluntary departure. An alien convicted of an aggravated
felony offense or deportable for terrorist activities (8 U.S.C.
§ 1227(a)(2)(A)(iii) & (a)(4)(B)) is not eligible for pre-hearing voluntary
departure. 8 U.S.C. § 1229c(a).
2. Post-Hearing Voluntary Departure. If the alien requests voluntary

departure at the conclusion of a removal proceeding, the immigration judge
may grant up to 60 days of voluntary departure. 8 U.S.C. § 1229c(b). To
qualify for post-hearing voluntary departure, an alien must:
• Be physically present in the United States for at least one year

immediately preceding the date the alien is served with the notice to
appear;
• Be a person of good moral character (as defined above) for at least 5

years immediately preceding the application for voluntary departure;
• Not be deportable as an aggravated felon or based on security and

related grounds (8 U.S.C. § 1227(a)(2)(A)(iii) & (a)(4)); and
• Have the means and the intent to depart the United States.
3. Consequences of Failing to Comply with Grant of Voluntary Departure.

An alien who fails to depart after being granted voluntary departure is subject
to fines and is ineligible for a period of 10 years from receiving cancellation
of removal, adjustment of status, and other forms of relief from removal.
8 U.S.C. § 1229c(d). Since 2007, however, an alien who files a motion to
reopen, motion to reconsider, or petition for judicial review before the period
of voluntary departure expires is not subject to this bar because the alien’s act
is deemed to terminate the grant of voluntary departure. 8 C.F.R.
§ 1240.26(e)(1) & (i).

Section 3: Relief and Protection from Removal
Part B: Relief and Protection from Removal
Based on a Fear of Persecution or Torture
I. Introduction
II. Relief and Protection from Removal Based on a Fear of Persecution or Torture
A. Asylum
1. General
2. Limits on Applying for Asylum
3. Exceptions and Bars to Asylum
4. Particularly Serious Crime
B. Withholding of Removal
1. General
2. Exceptions and Bars to Withholding of Removal
3. Particularly Serious Crime
C. Protection Under the Convention Against Torture
1. General
2. No Criminal Bars to Torture Protection
I. Introduction.
An alien who is inadmissible or deportable may also seek relief or protection based on a fear
of persecution (and in some limited circumstances past persecution alone) or torture in his or her
home country. Relief from removal based on a well-founded fear of persecution is discretionary and
may lead to lawful permanent resident status in the United States. There are also mandatory, non-
discretionary forms of protection from removal available to an alien who proves that it is more likely
than not that he or she will be persecuted or tortured. Except for asylum, these forms of protection
do not provide the alien with lawful status while he or she remains in the United States. An alien’s
criminal conduct and resulting guilty plea may prevent him or her from qualifying for, or being
granted, these various forms of relief or protection. This section provides a brief description of these
forms of relief and protection from removal, their requirements, and their bars and exceptions.
While it is unclear whether Padilla requires defense counsel to advise an alien if a plea may make
the alien ineligible for these grounds of relief and protection from removal, we include them for the
reader’s information.

II. Relief and Protection from Removal Based on a Fear of Persecution or Torture.
A. Asylum. An alien who establishes that he or she is unable or unwilling to return to

his or her home country (or, if the alien is stateless, the country of last habitual
residence) because of past persecution or a “well-founded fear” of future persecution
in that country may be granted asylum. 8 U.S.C. § 1158. Asylum is discretionary
and, as with other forms of relief discussed in Part A of this section, can be denied
even if the statutory requirements are met.
1. Ge ne ral. The persecution (or feared persecution) must be motivated by the

applicant’s race, religion, nationality, membership in a particular social
group, or political opinion (imputed or actual). 8 U.S.C. § 1101(a)(42).
Asylum is not permanent and may be terminated under certain circumstances.
8 U.S.C. § 1158(c)(2). However, an asylee cannot be removed from the
United States while in that status, and may apply for lawful resident alien
status a year after being granted asylum. See 8 U.S.C. § 1159. To be granted
LPR status, the asylee must establish that he or she is not inadmissible, or
obtain an asylum-specific waiver of inadmissibility. See 8 U.S.C. § 1159(c).
An asylee’s immediate family (the asylee’s spouse and unmarried children
under 21 years of age) may obtain asylum through the asylee. Asylees may
obtain employment authorization and permission to travel abroad.
2. Limits on Applying for Asylum. Generally, an alien is expected to apply

for asylum within a year of arriving in the United States, and may not file
successive applications (i.e., must not have previously applied for asylum and
had such application denied). An alien may be considered for asylum
notwithstanding these limits, however, if the alien demonstrates changed
circumstances that materially affect his or her eligibility for asylum, or
extraordinary circumstances relating to his or her delay in filing an
application within the one-year filing period. 8 U.S.C. § 1158(a)(2)(D).
3. Exceptions and Bars to Asylum. The following classes of aliens are not
eligible for asylum:
• Aliens who have persecuted others, 8 U.S.C. § 1158(b)(2)(A)(i);
• Aliens who have been convicted of a “particularly serious” crime,

constituting a danger to the community, 8 U.S.C. § 1158(b)(2)(A)(ii);
• Aliens who have committed a serious nonpolitical crime outside the

United States, 8 U.S.C. § 1158(b)(2)(A)(iii);

• Aliens who pose a danger to the security of the United States,
8 U.S.C. § 1158(b)(2)(A)(iv);
• With limited exceptions, aliens who are tied to terrorist activities,

8 U.S.C. § 1158(b)(2)(A)(v); and
• Aliens who have “firmly resettled” in another country before coming

to the United States, 8 U.S.C. § 1158(b)(2)(A)(vi).
4. Particularly Serious Crime. For purposes of asylum eligibility, all

aggravated felony offenses are expressly declared by statute to be
“particularly serious” crimes constituting a danger to the community.
8 U.S.C. § 1158(b)(2)(B)(i). Other crimes may also be determined to be
“particularly serious,” considering (i) the nature or elements of the offense;
(ii) the circumstances and underlying facts of the conviction; and (iii) the type
of sentence imposed. Crimes against the person are likely considered
“particularly serious” crimes constituting a danger to the community, as are
aggravated property offenses and drug trafficking crimes. A crime for which
no term of imprisonment is imposed may also be considered a “particularly
serious” crime, depending on its nature and underlying circumstances.
B. Withholding of Removal. Unless an exception applies, an alien who can establish

a “clear probability” that his or her life or freedom would be threatened in a particular
country because of the alien’s race, religion, nationality, membership in a particular
social group, or political opinion (actual or imputed) may not be returned to that
country. 8 U.S.C. § 1231(b)(3). If an alien qualifies for withholding of removal, the
grant is mandatory and cannot be denied in the exercise of discretion.
1. Ge ne ral. An inadmissible or deportable alien who obtains withholding of

removal to a particular country may be removed from the United States to any
other country that will receive the alien, but as a practical matter, removal to
such countries is relatively rare. An alien granted withholding of removal
may be granted work authorization. A grant of withholding of removal is not
a form of lawful status, however, and an alien granted withholding is not
entitled for that reason to be re-admitted to the United States if he or she
travels internationally.
2. Exceptions and Bars to Withholding of Removal. The following classes

of aliens are ineligible for withholding of removal:
C Aliens who have persecuted others, 8 U.S.C. § 1231(b)(3)(B)(i);

C Aliens who have been convicted of a “particularly serious” crime,
constituting a danger to the community, 8 U.S.C. § 1231(b)(3)(B)(ii);
• Aliens who have committed a serious nonpolitical crime outside the

United States, 8 U.S.C. § 1231(b)(3)(B)(iii); and
• Aliens who pose a danger to United States security, 8 U.S.C.

§ 1231(b)(3)(B)(iv), including aliens who are deportable under 8
U.S.C. § 1227(a)(4)(B) & (D) (involving terrorist activities, Nazi
persecution, genocide, commission of torture or extrajudicial killing).
3. Particularly Serious Crime. A particularly serious crime constituting a

danger to the community pursuant to 8 U.S.C. § 1231(b)(3)(B)(ii) includes
an aggravated felony for which a 5-year or longer sentence is ordered
(whether imposed or suspended). 8 U.S.C. § 1231(b)(3)(B). Other crimes
may also be determined to be “particularly serious,” considering: (i) the
nature or elements of the offense; (ii) the circumstances and underlying facts
of the conviction; and (iii) the type of sentence imposed. Crimes against the
person are likely to be considered “particularly serious” crimes constituting
a danger to the community, as are aggravated property offenses and drug
trafficking crimes. A crime for which no term of imprisonment is imposed
may also be considered “particularly serious,” depending on its nature and
underlying circumstances.
C. Protection Under the Convention Against Torture. Under regulations

implementing certain protections under the United Nations Convention Against
Torture, 1465 U.N.T.S. 85, G.A. Res. 39/46, 39th Sess., U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/39/51 (1984), an alien may not be returned to a country where
it is “more likely than not” that the alien will be tortured. “Torture” is defined as “an
extreme form of cruel and inhuman treatment” that “must cause severe pain or
suffering.” To qualify for a grant of protection, the alien must show that the torture
will be inflicted by or at the instigation of, or with the consent or acquiescence of a
public official or person acting in an official capacity. See generally 8 C.F.R.
§§ 208.18 and 1208.18. If an alien qualifies for torture protection, the grant is
mandatory and cannot be denied in the exercise of discretion.
1. General. An inadmissible or deportable alien granted protection under the

Convention Against Torture regulations may be removed from the United
States to another country that will receive the alien, but in practice, such
removals are relatively rare. An alien granted protection may be given work
authorization. A grant of protection is not a form of lawful status, however,
and an alien granted such protection is not entitled for that reason to be re-
admitted to the United States if he or she travels internationally.

2. No Criminal Bars to Torture Protection. An alien may apply for
protection under the Convention Against Torture regulations regardless of the
ground of removability or the severity of his or her criminal conduct.
Accordingly, even an alien convicted of an aggravated felony remains eligible
for torture protection. See 8 C.F.R. § 1208.17(a) (providing for deferral of
removal under the Convention Against Torture).

Section 4: Other Immigration
Consequences of Guilty Pleas
I. Introduction
II. Restrictions on Readmission to the United States
A. Aliens Convicted of Aggravated Felonies
B. Aliens Whose Criminal Conduct or Convictions Make Them Inadmissible
2. Fraud or Misrepresentation
3. False Claim to United States Citizenship
4. Alien Smuggling
5. Other Grounds of Inadmissibility Restricting Readmission
III. Mandatory Detention
A. Criminal and Related Grounds of Inadmissibility
B. Multiple Criminal Convictions, Aggravated Felonies, Controlled Substance
Violations, Firearm Offenses, and Miscellaneous Crimes
C. Crimes Involving Moral Turpitude
D. Terrorist and Related Activities
IV. Bar to Naturalization
V. Restriction on Judicial Review
A. Criminal and Related Grounds of Inadmissibility
B. Aggravated Felonie s , Controlled Substance Violations, Firearm Offenses, and
Miscellaneous Crimes
C. Multiple Criminal Convictions
VI. Exposure to Summary Removal
A. Aliens Convicted of Aggravated Felonies Who Are Not Lawful Permanent
Residents, Asylees, or Refugees
B. Aliens Who Illegally Enter the United States After Previously Being Deported
VII. Enhanced Criminal Penalties for Unlawful Reentry By Aliens Who Have Committed
Certain Crimes
I. Introduction.
Beyond removability and ineligibility for relief, a guilty plea may implicate other
immigration consequences. This section discusses some of these consequences, including
restrictions on readmission to the United States and judicial review, ineligibility for naturalization,

mandatory detention, exposure to summary removal, and enhanced sentences for criminal reentry.
While it is unclear whether Padilla requires defense counsel to advise an alien of these
consequences, we include them for the reader’s information.
II. Restrictions on Readmission to the United States.
The Immigration and Nationality Act (“INA”) provides that aliens who have been convicted
of certain crimes face restrictions on readmission.
A. Aliens Convicted of Aggravated Felonies.
• An alien who: (1) has been convicted of an aggravated felony; (2) has been
ordered removed; and (3) again seeks admission is inadmissible at any time
he or she seeks admission. By contrast, aliens previously removed who have
not been convicted of aggravated felonies do not face a permanent bar to
readmission but instead face a 5-year bar (arriving aliens), 10-year bar (aliens
other than arriving aliens), or a 20-year bar (in the case of a second or
subsequent removal). See 8 U.S.C. § 1182(a)(9)(A)(i) & (ii).
• Exception: Although ineligible for readmission, an alien convicted of an

aggravated felony (and other aliens), may apply to the Attorney General for
consent to apply for readmission. 8 U.S.C. § 1182(a)(9)(A)(iii). An alien
must apply for such advance consent from outside of the United States.
B. Aliens Whose Criminal Conduct or Convictions Make Them Inadmissible.
In addition to aliens convicted of aggravated felonies, aliens who commit crimes that make
them inadmissible face restrictions on readmission because of their inadmissibility. The grounds of
inadmissibility presented below have already been discussed previously in Section 2, Part A. But
we reference them again to emphasize that a plea which renders an alien inadmissible not only may
result in a risk of removal, but also may restrict an alien’s readmission to the United States. In fact,
it is not necessary for an alien to be placed in removal proceedings to trigger the bar to readmission.
If an alien is convicted of, or commits an inadmissible offense, and thereafter voluntarily departs the
United States, even on a short trip, he or she is inadmissible to return because of the offense. Finally,
in some instances (as noted below), no waiver is available for an alien who is outside of the United
States to cure the ground of inadmissibility.

The following aliens are inadmissible, and therefore ineligible to apply for readmission
unless a waiver of inadmissibility is available, and the Attorney General, in his or her discretion,
grants such waiver.
1. Controlled Substance Offenses.
• Any alien who the consular officer or Attorney General knows or has
reason to believe is or has been an illicit trafficker in any controlled
substance or in any listed chemical (as defined in 21 U.S.C. § 802),
is inadmissible. 8 U.S.C. § 1182(a)(2)(C)(i).
• Any alien who the consular officer or Attorney General knows or has
reason to believe is or has been a knowing aider, abettor, assister,
conspirator, or colluder with others in the illicit trafficking in any
controlled or listed substance or chemical, or endeavored to do so, is
inadmissible. 8 U.S.C. § 1182(a)(2)(C)(i).
• A spouse, son or daughter of an alien covered in section

1182(a)(2)(C)(i) who has, within the previous 5 years, benefitted from
the illicit activity of the alien described in (C)(i), and knew or
reasonably should have known that the benefit was illicit, is
inadmissible. 8 U.S.C. § 1182(a)(2)(C)(ii).
• Any alien who is determined by the immigration authorities to be a

drug abuser or addict is inadmissible. 8 U.S.C. § 1182(a)(1)(A)(iv).
• Any alien convicted of, or who admits having committed, or who

admits committing acts which constitute the essential elements of a
violation of (or a conspiracy or attempt to violate) any law or
regulation relating to a controlled substance, is inadmissible.
8 U.S.C. § 1182(a)(2)(A)(i)(II).
• Note: For these drug offenses, there is no waiver of inadmissibility

available (except as it relates to a single offense of simple possession
of 30 grams or less of marijuana). See 8 U.S.C. § 1182(h).
2. Fraud or Misrepresentation.
• Any alien who, by fraud or willfully misrepresenting a material fact,

seeks to procure (or sought to procure or has procured) a visa, other
documentation, or admission into the United States or other
immigration benefit is inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i).
Note: A waiver of this ground of inadmissibility may be granted in

the discretion of the Attorney General if the alien is eligible. See
8 U.S.C. § 1182(i).
• Any alien who is the subject of a final order for a violation of

8 U.S.C. § 1324c (document fraud) is inadmissible. 8 U.S.C.
§ 1182(a)(6)(F)(i). Note: A waiver of this ground of inadmissibility
may be granted in the discretion of the Attorney General if the alien
is eligible. 8 U.S.C. § 1182(a)(6)(F)(ii).
3. False Claim to United States Citizenship. Any alien who falsely represents
himself or herself to be a U.S. citizen for any purpose or immigration benefit
is inadmissible. 8 U.S.C. § 1182(a)(6)(C)(ii)(I). This does not include
representations of citizenship made by an alien who reasonably believed that
he or she was a citizen at the time of the representation as long as the alien’s
parents (natural or adopted) are or were citizens and the alien permanently
resided in the United States prior to the age of sixteen. 8 U.S.C.
§ 1182(a)(6)(C)(ii)(II). Note: There is no waiver available for this ground.
4. Alien Smuggling. Any alien who at any time knowingly has encouraged,
induced, assisted, abetted or aided any other alien to enter or to try to enter
the United States in violation of law is inadmissible. 8 U.S.C.
§ 1182(a)(6)(E)(i). Note: There is a limited exception for this ground of
inadmissibility on the basis of family reunification, 8 U.S.C.
§ 1182(a)(6)(E)(ii), and there is a limited waiver at the discretion of the
immigration authorities to assure family unity or when it is in the public
interest, 8 U.S.C. § 1182(a)(6)(E)(iii).
5. Other Grounds of Inadmissibility Restricting Readmission. Any alien who

falls within the following grounds is inadmissible.
• Crimes involving moral turpitude (or an attempt or conspiracy to

commit such a crime), 8 U.S.C. § 1182(a)(2)(A)(i)(I). Note: There
are two exceptions to this ground of inadmissibility: the juvenile and
petty offense exceptions. 8 U.S.C. § 1182(a)(2)(A)(ii)(I) & (ii)(II).
• Multiple criminal convictions resulting in cumulative sentences of at

least 5 years’ imprisonment, 8 U.S.C. § 1182(a)(2)(B).
• Prostitution-related offenses, 8 U.S.C. § 1182(a)(2)(D).
• Note: For the three crimes above, there is waiver of inadmissibility

at 8 U.S.C. § 1182(h) that aliens may be eligible to apply for, and the

Attorney General may grant in his or her discretion (see Section 3 for
a summary of the eligibility requirements for a 212(h) wavier).
• Threats by an alien with a physical or mental disorder, 8 U.S.C.

§ 1182(a)(1)(A)(iii). Note: A waiver of this ground may be granted
at the discretion of the Attorney General. 8 U.S.C. § 1182(g)(3).
• Human trafficking-related offenses, 8 U.S.C. § 1182(a)(2)(H). Note:

There is a limited exception to this ground of inadmissibility for a son
or daughter who was a “child” at the time of receiving a benefit from
the illicit activity of his or her parent. 8 U.S.C. § 1182(a)(2)(H)(iii).
• Money laundering, 8 U.S.C. § 1182(a)(2)(I). N o t e : There is no

waiver available for this ground.
• Espionage, Sabotage, Treason, and Terrorism, 8 U.S.C.

§ 1182(a)(3)(A), (B) & (F). Note: There is a limited exception to the
terrorist ground of inadmissibility for a spouse or child of the
inadmissible alien. 8 U.S.C. § 1182(a)(3)(B)(ii).
• Polygamy, 8 U.S.C. § 1182(a)(10)(A). Note: There is no waiver

available for this ground.
• International Child Abduction, 8 U.S.C. § 1182(a)(10)(C). Note:

There are exceptions, including instances where a child is abducted
to a country that is a party to the Hague Convention.
• Unlawful Voters, 8 U.S.C. § 1182(a)(10)(D)(i). Note: There is an

exception for an alien who reasonably believed that he or she was a
citizen at the time of the unlawful voting, subject to certain
requirements. 8 U.S.C. § 1182(a)(10)(D)(ii).
III. Mandatory Detention.
Some criminal convictions may trigger mandatory detention provisions in the INA. In such
cases, detention is mandatory while removal proceedings are pending. 8 U.S.C. § 1226(a) & (c)(1).
Specifically, aliens who fall within the following grounds of inadmissibility or deportability may be
subject to mandatory detention:
A. Criminal and Related Grounds of Inadmissibility. 8 U.S.C. § 1182(a)(2) (various

grounds of inadmissibility based on crimes involving moral turpitude, drug offenses,
multiple convictions resulting in cumulative sentences of at least 5 years’
imprisonment, prostitution, human trafficking, and money laundering);

B. Multiple Criminal Convictions, Aggravated Felonies, Controlle d Substance
Violations, Firearm Offenses, and Miscellaneous Crimes. 8 U.S.C.
§ 1227(a)(2)(A)(ii), (iii), (B), (C), & (D) (various grounds of deportability including
two crimes involving moral turpitude, aggravated felonies, drug offenses, firearm
offenses, and certain crimes relating to treason, sabotage, espionage);
C. Crimes Involving Moral Turpitude. 8 U.S.C. § 1227(a)(2)(A)(i) (ground of

deportability for a crime involving moral turpitude for which the alien has been
sentenced to a term of imprisonment of at least one year and if committed within five
years (or ten years in the case of a lawful permanent resident provided status under
8 U.S.C. § 1255(j)) after the date of admission);
D. Terrorist and Related Activities. 8 U.S.C. § 1182(a)(3)(B) (ground of

inadmissibility for terrorist activities), or 8 U.S.C. § 1227(a)(4)(B) (ground of
deportability based on terrorist and related activities).
Note: Even where an alien’s crime does not require his or her mandatory detention, the
crime is an adverse factor that reduces the chance the alien will be released on bond at the discretion
of the Attorney General and his or her delegates. See 8 U.S.C. § 1226(a) (providing the Attorney
General with discretion to release an alien on bond pending removal proceedings).
IV. Bar to Naturalization.
Aliens who have committed certain crimes are ineligible for naturalization. Typically, in
order to be eligible for naturalization, applicants must establish good moral character in the five
years preceding their application, and in the period between their application and admission to
citizenship. 8 U.S.C. § 1427(a). Pursuant to 8 U.S.C. § 1101(f), the following criminal acts preclude
an alien from establishing good moral character if committed within the required periods:
• At any time convicted of an aggravated felony (as defined in 8 U.S.C. § 1101(a)(43)),

8 U.S.C. § 1101(f)(8);
• Crimes involving moral turpitude (whether inadmissible or not, described in 8 U.S.C.

§ 1182(a)(2)(A)(i)(I)), 8 U.S.C. § 1101(f)(3);
• Controlled substance violations, except as it relates to a single offense of simple

possession of 30 grams or less of marijuana (whether inadmissible or not, described
in 8 U.S.C. § 1182(a)(2)(A)(i)(II) & (a)(2)(C)), 8 U.S.C. § 1101(f)(3);
• Multiple convictions resulting in cumulative sentences of at least five years’

imprisonment (whether inadmissible or not, described in 8 U.S.C. § 1182(a)(2)(B)),
8 U.S.C. § 1101(f)(3);

• Prostitution and commercialized vice (whether inadmissible or not, described in 8
U.S.C. § 1182(a)(2)(D)), 8 U.S.C. § 1101(f)(3);
• Alien smuggling (whether inadmissible or not, described in 8 U.S.C.

§ 1182(a)(6)(E)), 8 U.S.C. § 1101(f)(3);
• Polygamy (whether inadmissible or not, described in 8 U.S.C. § 1182(a)(10)(A)), 8

U.S.C. § 1101(f)(3);
• Habitual drunkard, 8 U.S.C. § 1101(f)(1);
• Any individual “whose income is derived principally from illegal gambling

activities,” 8 U.S.C. § 1101(f)(4);
• Any individual convicted of two or more gambling offenses, 8 U.S.C. § 1101(f)(5);
• Any individual who has given false testimony in order to obtain an immigration
benefit, 8 U.S.C. § 1101(f)(6);
• Any individual who has been imprisoned for an aggregate period of 180 days during
the time in which he or she has to establish good moral character, regardless of when
the offense or offenses for which he or she was incarcerated were committed, 8
U.S.C. § 1101(f)(7);
• Any individual who, at any time as a foreign government official, was responsible
for a “particularly severe violation of religious freedom” (as described in 8 U.S.C.
§ 1182(a)(2)(G)), 8 U.S.C. § 1101(f)(9);
• Any individual who, at any time, participated in Nazi persecution, genocide, torture,
or extrajudicial killing (as described in 8 U.S.C. § 1182(a)(3)(E)), 8 U.S.C.
§ 1101(f)(9).
Additionally, acts committed by the applicant outside the required statutory periods specified
above may be considered in adjudicating the application for naturalization, and may render an
applicant ineligible for naturalization as a matter of discretion. 8 U.S.C. § 1427(e). Furthermore,
the fact that the applicant does not fall within any of the per se categories listed above does not
preclude a finding that such person is or was not of good moral character. See 8 U.S.C. § 1101(f).
Finally, any of the acts described above, if committed before an alien naturalizes, can be a basis for
denaturalization. 8 U.S.C. § 1451(a). Failing to disclose such acts or making false statements
regarding them on the naturalization application or during the interview, may also be independent
grounds for denaturalization.

V. Restriction on Judicial Review.
Certain criminal aliens (i.e. aliens who commit crimes that subject them to removal) are
barred from seeking judicial review of their removal orders, except to the extent they raise challenges
to their removability and certain questions of law or constitutional claims. See 8 U.S.C.
§ 1252(a)(2)(C) & (D). Specifically, aliens who fall within the following grounds of inadmissibility
or deportability, and are subject to this judicial review bar, are precluded from seeking judicial
review of non-legal questions:
A. Criminal and Related Grounds of Inadmissibility. 8 U.S.C. § 1182(a)(2)

(various grounds of inadmissibility based on crimes involving moral turpitude,
drug offenses, multiple convictions resulting in cumulative sentences of at least 5
years’ imprisonment, prostitution, human trafficking and money laundering);
B. Aggravated Felonie s , Controlled Substance Violations, Firearm Offenses, and

Miscellaneous Crimes. 8 U.S.C. § 1227(a)(2)(A)(iii), (B), (C), (D) (various grounds
of deportability including aggravated felonies, drug offenses, firearm offenses, and
certain crimes relating to treason, sabotage, espionage);
C. Multiple Criminal Convictions. 8 U.S.C. § 1227(a)(2)(A)(ii) (ground of

deportability based on two crimes involving moral turpitude for which both offenses
are, without regard to their date of conviction, otherwise covered in 8 U.S.C.
§ 1227(a)(2)(A)(i), which is the ground of deportability based on one crime involving
moral turpitude).
VI. Exposure to Summary Removal.
Aliens who commit certain crimes may be subject to summary removal, i.e., they will not
have the opportunity to go before an immigration judge to apply for discretionary immigration relief,
other than to assert claims that they fear persecution or torture.
A. Aliens Convicted of Aggravated Felonies Who Are Not Lawful Permanent

Residents, Asylees, or Refugees.
• These aliens are subject to “administrative removal” under 8 U.S.C.

§ 1228(b).
• The removal cases are heard before Department of Homeland Security

(“DHS”) officers rather than immigration judges, and the aliens are ineligible
for discretionary relief. 8 U.S.C. § 1228(b)(5); 8 C.F.R. § 238.1.
• Such aliens, however, may raise a claim of persecution or torture, and if a

DHS officer finds the fear to be reasonable, the alien is referred for a full

hearing before an immigration judge to apply for withholding of removal (if
eligible) and protection under the Convention Against Torture. 8 C.F.R.
§§ 238.1(f)(3) and 208.31.
B. Aliens Who Illegally Enter the United States After Previously Being Deported.
• These aliens are subject to “reinstatement of removal” under 8 U.S.C.

§ 1231(a)(5).
C The removal cases are heard before DHS officers rather than immigration
judges, and the aliens are ineligible for relief. 8 U.S.C. § 1231(a)(5).
• Such aliens, however, may raise a claim of persecution or torture, and if a

DHS officer finds the fear to be reasonable, the alien is referred for a full
hearing before an immigration judge to apply for withholding of removal (if
eligible) and protection under CAT. 8 C.F.R. §§ 241.8(e) and 208.31.
VII. Enhanced Criminal Penalties for Unlawful Reentry By Aliens Who Have Committed
Certain Crimes.
Aliens who have been removed from the United States face criminal prosecution if they re-
enter, attempt to re-enter, or are found in the United States. 8 U.S.C. § 1326. Generally, such aliens
may be imprisoned for not more than two years and may assert a defense to prosecution if they
obtain advance permission from the Attorney General to reapply for admission, or establish that such
advance consent was not required. 8 U.S.C. § 1326(a).
Aliens whose removal was subsequent to a conviction for certain crimes, however, face
enhanced sentences as set forth below and may be ineligible for advanced consent for readmission.
• An aggravated felony - alien may be imprisoned for not more than 20 years, 8 U.S.C.
§ 1326(b)(2).
• A felony (other than an aggravated felony) - alien may be imprisoned for not more
than 10 years, 8 U.S.C. § 1326(b)(1).
• Three or more misdemeanors involving drugs, crimes against the person, or both -
alien may be imprisoned for not more than 10 years, 8 U.S.C. § 1326(b)(1).
• Additionally, aliens convicted of certain non-violent crimes who are removed prior
to completion of their prison sentence pursuant to 8 U.S.C. § 1231(a)(4)(B) face
enhanced sentences. These aliens may be imprisoned for not more than 10 years,
and may assert a defense based on advance consent. 8 U.S.C. § 1326(b)(4).

Section 5: Brief Overview of Criminal
Law-Related Amendments to the
Immigration and Nationality Act
I. Introduction
II. The Immigration and Nationality Act of 1952
III. The 1986 and 1988 Amendments
IV. The Immigration Act of 1990
V. The Miscellaneous and Technical Immigration and Naturalization Amendments of
1991
VI. The Immigration and Technical Corrections Act of 1994
VII. Act of August 26, 1994 (Pe rtaining to Adjustment of Status under 8 U.S.C. § 1255(i))
and Subsequent Acts Regarding 8 U.S.C. § 1255(i)
VIII. The Antiterrorism and Effective Death Penalty Act of 1996
IX. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
X. The REAL ID Act of 2005
I. Introduction.
The Supreme Court’s holding in Padilla is likely to result in collateral challenges to pre-
Padilla convictions based on ineffective assistance of counsel. If courts conclude that Padilla’s
holding applies retroactively, thus enabling aliens to raise such challenges, the adequacy of defense
counsel’s advice will be determined in large part by an analysis of the law existing at the time of the
plea. This section offers the reader a broad narrative of how that law has changed as it relates to the
immigration consequences of a guilty plea by describing some of the most significant amendments
to the Immigration and Nationality Act (“INA”) over the last few decades. This section is not an
exhaustive summary for every change in the INA during this period of time. The reader should also
research the case law and legislative history.
II. The Immigration and Nationality Act of 1952.
The nation’s earliest immigration laws were animated by the primary objectives of public
welfare and national security. See, e.g., Naturalization Act, ch. 54, 1 Stat. 567 (1798); Page Act, ch.
141, 18 Stat. 477 (1875); Immigration Act of 1917, ch. 29, 39 Stat. 874 (repealed 1974); Immigration
Act of 1921, ch. 8, 42 Stat. 5 (repealed 1952). With the Immigration and Nationality Act of 1952,
Pub. L. No. 82-414, 66 Stat. 163 (1952) (“1952 Act,” current version at 8 U.S.C. §§ 1101, et seq.),
Congress completely and comprehensively revised and codified the nation’s laws governing

immigration, naturalization, and nationality, and, as amended in the interim, it remains in effect
today.
The 1952 Act contained a few provisions concerning the regulation of criminal aliens.
Criminal activities that would subject an alien to the denial of admission (“exclusion”) or deportation
included, but were not limited to: (1) crimes involving moral turpitude (“CIMT”); (2) offenses
relating to prostitution; (3) violations of the drug laws; and (4) offenses relating to espionage and
sabotage. 1952 Act §§ 212 and 241. Criminal aliens generally remained eligible for various forms
of relief from deportation, such as waivers of inadmissibility under sections 212(c) and 212(h) of the
1952 Act, judicial recommendations against deportation (“JRADs”),4 suspension of deportation,
asylum and withholding of deportation, and voluntary departure.
III. The 1986 and 1988 Amendments.
In the late 1980s, Congress enacted a series of amendments to the INA “[i]n an effort to deal
more effectively and expeditiously with the involvement of aliens in serious criminal activities,
particularly narcotics trafficking.” 55 Fed. Reg. 24,858-01 (June 19, 1990). In 1986, Congress
classified all controlled substances as drugs for purposes of establishing grounds of exclusion and
deportation under the immigration regulations. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
100 Stat. 3207. That same year, Congress established the Criminal Alien Hearing Program, which
allowed immigration authorities to place a convicted criminal alien in deportation proceedings while
the alien was still in criminal detention as a means to expedite deportation. Immigration Reform and
Control Act of 1986 (“IRCA”), § 701, Pub. L. No. 99-603, 100 Stat. 3359 (codified at 8 U.S.C.
§ 1254(i) (1986)).
In 1988, Congress passed an omnibus drug enforcement law, the Anti-Drug Abuse Act of
1988, Pub. L. No. 100-690, 102 Stat. 4181 (“ADAA”), which introduced the term “aggravated
felony” into the immigration law lexicon and resulted in the creation of a new class of deportable
criminal aliens. Section 7342 of the ADAA defined an aggravated felony as including murder, drug
trafficking crimes, illicit trafficking in firearms or destructive devices, or any attempt or conspiracy
to commit such acts in the United States. See INA § 101(a)(43) (1988). Although the ADAA did
not provide an effective date for section 7342’s amendments, the Board of Immigration Appeals
(“Board”) subsequently held that the aggravated felony definition applied to all convictions occurring
“before, on, or after” the November 18, 1988 enactment date. Matter of A-A-, 20 I. & N. Dec. 492,
495 (BIA 1992).
In addition to mandating the detention of aliens convicted of aggravated felony offenses

(“aggravated felons”) during the pendency of their deportation proceedings and following the
completion of their criminal incarcerations, see ADAA § 7343(a), the ADAA: (1) rendered aliens
4
The Supreme Court’s decision in Padilla v. Kentucky, discusses the history and purpose
of JRADs. 130 S. Ct. 1473, 1479-80 (2010).

deportable as aggravated felons ineligible for voluntary departure, ADAA § 7343(b); (2) reduced
(from 180 to 60 days) the period within which aggravated felons could petition the courts of appeals
for review of their deportation orders, ADAA § 7347(b); and (3) prohibited a deported aggravated
felon from applying for admission to the United States during the ten-year period following his or
her deportation, even if the alien was otherwise eligible for admission, ADAA § 7349.
IV. The Immigration Act of 1990.
On November 29, 1990, Congress enacted the Immigration Act of 1990, Pub. L. No. 101-
649, 104 Stat. 4978 (“IMMACT90”), which broadly impacted criminal aliens, most notably in its
expansion of the definition of “aggravated felony” to include:
• Any offense for money laundering, as defined in 18 U.S.C. § 1956, see IMMACT90
§ 501(a)(3);
• “[C]rimes of violence,” as defined in 18 U.S.C. § 16 (but not including “purely

political offense[s]”), for which “the term of imprisonment imposed (regardless of
any suspension of such imprisonment) is at least five years,” see IMMACT90
§ 501(a)(3); and
• Additional grounds of controlled substance trafficking, see IMMACT90 § 501(a)(2),

and attempts to violate these drug laws, id. at § 508.
The Act clarified that the definition of aggravated felony was applicable to both federal and state
convictions, see IMMACT90 § 501(a)(5), as well as to convictions for comparable foreign offenses
if the term of imprisonment was completed within the previous fifteen years, id. at § 501(a)(6).
Congress specified that the amendments applied to offenses occurring on or after the enactment date
of November 29, 1990, except for drug trafficking offenses and offenses in violation of state law,
which went into effect as if enacted as part of the ADAA in 1988. See IMMACT90 § 501(b).
IMMACT90 also affected aggravated felons’ procedural rights with respect to detention and
bond. See IMMACT90 § 504(a) & (b). It further reduced the time period, from 60 to 30 days,
within which an alien ordered deported as an aggravated felon could seek review of his or her
deportation order in the federal courts of appeals, id. at § 502(a), and eliminated the automatic stay
of deportation that was triggered upon the filing of a petition for judicial review, id. at § 513. Thus,
to obtain a stay of deportation pending judicial review, an alien ordered deported as an aggravated
felon was required to file a motion for a stay of removal or risk having the court lose jurisdiction
over the case upon his or her deportation. Additionally, Congress increased the period of
inadmissibility for aggravated felons so that once deported, an aggravated felon was now barred from
applying for admission for at least twenty years following the date of deportation. Id. at § 514.

The legislation also placed limitations on the availability of deportation relief to aggravated
felons:
• JRADs were eliminated for aggravated felony offenses and CIMTs. IMMACT90
§ 505. Congress specified that section 505 applies to convictions entered before, on,
or after November 29, 1990, id., and the former Immigration and Naturalization
Service (“INS”) took the position that the provision applied to “all final convictions
except those for which JRADs had been granted prior to date of enactment.” 67
Interpreter Releases 1362 (Dec. 3, 1990) (reproducing INS IMMACT90 Wire 5
(Nov. 28, 1990)).
• Aggravated felons were barred from demonstrating “good moral character,” a

prohibition that rendered them statutorily ineligible for such immigration benefits as
suspension of deportation under 8 U.S.C. § 1254(a) (1988), registry under 8 U.S.C.
§ 1259 (1988), voluntary departure under 8 U.S.C. § 1254(e) (1988), and
naturalization under 8 U.S.C. § 1247 (1988). IMMACT90 § 509.
• Lawful permanent residents who had served prison terms of at least five years
because of aggravated felony convictions were barred from applying for a waiver of
inadmissibility under section 212(c) of the INA, 8 U.S.C. § 1182(c). IMMACT90
§ 511.
• Aggravated felons were barred from applying for or being granted asylum.
IMMACT90 § 515(a)(1). This amendment applied to asylum applications made on
or after November 29, 1990. Id. at § 515(b)(1).
• Aggravated felons were deemed to have per se committed a “particularly serious

crime” and, therefore, were ineligible for withholding of deportation. IMMACT90
§ 515(a)(2).
V. The Miscellaneous and Technical Immigration and Naturalization Amendments of

1991.
One year later, Congress passed a bill making technical changes to IMMACT90 and further
substantive changes to the INA. Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733 (“Immigration Technical Corrections Act
of 1991”). In addition to amending the bail and detention provisions applicable to criminal aliens,
the legislation clarified that for purposes of determining a criminal alien’s eligibility for section
212(c) relief, the period of time an alien has served in prison for any aggravated felony convictions
must be considered in the aggregate. Id. at § 306(a)(10). Congress also mandated that a murder
conviction, regardless of the date, will be a bar to a finding of good moral character. Id. at
§ 306(a)(7). Moreover, aggravated felons would have only 30 days to seek judicial review of an in
absentia deportation order (other criminal aliens continued to have 60 days). Id. at § 306(c)(6)(G).

Congress further clarified that, regardless of the date of the aggravated felony conviction, the INS
was not required to stay an aggravated felon’s deportation pending judicial review, unless otherwise
ordered by a court. Id. at § 306(a)(11).
VI. The Immigration and Technical Corrections Act of 1994.
With the passage of the Immigration and Technical Corrections Act of 1994, Pub. L. No.
103-416, 108 Stat. 4305 (“INTCA”), Congress again expanded the definition of “aggravated felony”
to include the following types of crimes:
• Offenses relating to explosives and firearms;
• Theft and burglary offenses with sentences of at least five years;
• Kidnaping for ransom;
• Child pornography;
• Offenses relating to a racketeer influenced organization (“RICO”) for which a

sentence of five years or more could be imposed;
• Managing, owning, controlling, or supervising a prostitution business;
• Involuntary servitude-related offenses;
• Offenses relating to espionage, sabotage, and treason;
• Fraud or deceit involving a loss of more than $200,000 to the victim(s);
• Tax evasion involving the loss of more than $200,000 to the Government;
• Alien smuggling for commercial advantage;
• Document fraud for which a minimum sentence of five years could be imposed; and
• Failure to appear for service of sentence if the underlying sentence is punishable by

a term of 15 years or more.
Id. at § 222(a) (amending 8 U.S.C. § 1101(a)(43)).

VII. Act of Augus t 26, 1994 (Pertaining to Adjustment of Status under 8 U.S.C. § 1255(i))
And Subsequent Acts Regarding 8 U.S.C. § 1255(i).
In 1994, Congress enacted section 245(i) of the INA, 8 U.S.C. § 1255(i). Pub. L. No.
103-317, § 506(b), 108 Stat. 1766-67, reprinted in 8 U.S.C.A. § 1182 note. Generally, aliens who
enter the country without inspection are ineligible to seek adjustment to lawful permanent resident
status. See 8 U.S.C. § 1255(a). Section 245(i) of the INA provided an exception to this general rule,
permitting any alien who entered the country without inspection to seek adjustment of status upon
the payment of an increased filing fee if the alien has an immigrant visa “immediately available.”
Id. at § 1255(i)(2)(B). In the 1994 Act, Congress specified that its amendment “shall cease to have
effect on October 1, 1997.” Act of Aug. 26, 1994 § 506(c). The law expired on that date but
Congress revived it later that same year and extended its availability to aliens who were the
beneficiaries of qualifying classification petitions or labor certification applications filed on or before
January 14, 1998. See Pub. L. No. 105-119, § 111(a)(1)(i)(B)(i), 111 Stat. 2440 (1997). Congress
again extended the provision in the Legal Immigration Family Equity Act of 2000, Pub. L. No.
106-554, § 1502(a)(1)(B), 114 Stat. 2763, making section 1255(i) available as long as the visa
petition or adjustment application was filed on or before April 30, 2001. Following the 2000
legislative amendment, adjustment of status under section 1255(i) is presently unavailable except
for those aliens who qualify as being grandfathered into the section. See 8 C.F.R. § 245.10(b).
VIII. The Antiterrorism and Effective Death Penalty Act of 1996.
In the wake of the 1995 Oklahoma City bombing, Congress enacted on April 24, 1996,
legislation designed to deter and punish terrorism, which also included, among other significant
changes to the immigration laws, an expansion of the grounds of deportability, broader mandates for
detention of criminal aliens, and tighter restrictions on the availability of discretionary relief and
judicial review. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (“AEDPA”). AEDPA amended the aggravated felony definition to include:
• Gambling offenses and the transmission of wagering information;
• Transportation for purposes of prostitution;
• Document fraud offenses, such as falsely making, forging, counterfeiting, mutilating,

or altering a passport for which a sentence of at least eighteen months is imposed;
• Improper entry or re-entry, or misrepresentation or concealment of facts by an alien

previously deported as an aggravated felon;
• Offenses for commercial bribery, counterfeiting, forgery, or trafficking in vehicles

with altered identification numbers for which a sentence of five years or more may
be imposed;

• Offenses for obstruction of justice, perjury, subornation of perjury, or bribery of a
witness for which a sentence of five years or more may be imposed; and
• Failure to appear for service of sentence if the underlying sentence is for a felony
punishable by a term of two years or more.
AEDPA § 440(e). These amendments applied prospectively to convictions entered on or after the
April 24, 1996 date of enactment. Id. at § 440(f).
Additionally, AEDPA amended the aggravated felony alien smuggling provision by deleting
the requirement that the offense be committed for commercial gain and instead providing that any
conviction for alien smuggling for which a five-year sentence is imposed qualifies as an aggravated
felony. AEDPA § 440(e)(3). This change applied retroactively to convictions entered on or after
October 24, 1994. Id. at § 440(f).
Until the enactment of AEDPA, aggravated felons who had served less than five years in
prison for their aggravated felony convictions remained eligible to seek relief from deportation under
section 212(c) of the INA. In AEDPA, however, Congress expressly disallowed section 212(c) relief
for aggravated felons and aliens convicted of other specified categories of criminal offenses,
including controlled substance offenses, firearm offenses, and multiple criminal convictions.
AEDPA § 440(d). AEDPA also removed the per se bar to withholding of deportation for aggravated
felons convicted of a particularly serious crime. Id. at § 413(f).
IX. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
A few months after AEDPA was enacted, Congress passed legislation that amended and
overhauled the immigration laws, with particularly significant effects on criminal aliens. See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009
(“IIRIRA”). Taken together, AEDPA and IIRIRA created enhanced penalties for immigration-
related crimes and also significantly increased the number of consequences for aliens convicted of
serious crimes. IIRIRA carried forward AEDPA’s statutory prohibition on judicial review of
criminal aliens’ deportation orders and expanded it to include excludable criminal aliens as well.
IIRIRA § 242(a)(2).
For the first time, Congress enacted a statutory definition of “conviction” for immigration
purposes. IIRIRA § 322(a) (codified at 8 U.S.C. § 1101(a)(48)(A)). The statutory definition had a
stated purpose of “deliberately broaden[ing] the scope of [the Board’s] definition of ‘conviction’ [as
set forth in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988)],” which, in Congress’s view, did “not
go far enough to address situations where a judgment of guilt or imposition of sentence is
suspended.” Joint Explanatory Statement of the Committee of Conference, 142 Cong. Rec. H10,899
(daily ed. Sept. 24, 1996). Section 322 of IIRIRA therefore “clarifies Congressional intent that even
in cases where adjudication is ‘deferred,’ the original finding or confession of guilt is sufficient to

establish a ‘conviction’ for purposes of the immigration laws.” Id.; see Appendix C (detailed
discussion of what constitutes a conviction for immigration purposes).
IIRIRA also eliminated the distinction between the “imposed” and “actually imposed”
requirement of most of the “term of imprisonment” provisions of the INA. In its place, Congress
enacted a new definition of imprisonment for immigration purposes which provided that “[a]ny
reference to a term of imprisonment or a sentence with respect to an offense is deemed to include
the period of incarceration or confinement ordered by a court of law regardless of any suspension
of the imposition or execution of that imprisonment or sentence in whole or in part.” IIRIRA
§ 322(a)(1)(B).
Additionally, the definition of aggravated felony was once again expanded (in many
instances, by lowering the sentence or monetary thresholds for offenses already included in the
definition) to encompass:
• Crimes of rape and sexual abuse of a minor;
• Theft and burglary offenses for which the term of imprisonment is at least one year;
• RICO- related and gambling offenses for which a one-year term of imprisonment may
be imposed;
• Offenses relating to commercial bribery, counterfeiting, forgery, or trafficking in

vehicles for which the term of imprisonment was at least one year;
• Offenses relating to obstruction of justice, perjury or subornation of perjury, or

bribery of a witness for which a sentence of one year or more may be imposed;
• Money laundering offenses involving funds over $10,000 (a lowering of the previous
requirement of $100,000);
• Fraud or deceit involving a loss of more than $10,000 to the victim(s); and
• Tax evasion involving the loss of more than $10,000 to the Government.
IIRIRA § 321. Similarly, IIRIRA broadened the document fraud offenses that qualify as aggravated
felonies by lowering the sentence threshold from eighteen to twelve months, but created an exception
for aliens whose convictions were for a first offense committed on behalf of their spouse, child, or
parent. Id. at § 321(a)(9). A similar exception was created for persons convicted of alien smuggling
if the conviction was a first offense that was committed on behalf of a spouse, child, or parent only.
Id. at § 321(a)(8). However, Congress also eliminated the requirement that a sentence of at least five
years be imposed for an alien smuggling conviction to qualify as an aggravated felony. Id. Thus,
all alien smuggling convictions that do not fall within the narrow family/first offense exception are

now aggravated felonies. Congress expressly made IIRIRA’s amendments to the aggravated felony
definition retroactive by providing that they “appl[y] regardless of whether the conviction was
entered before, on, or after the [September 30, 1996] date of enactment[.]” Id. at § 321(b).
In IIRIRA, Congress consolidated deportation and exclusion proceedings into unified

“removal” proceedings, and created a new procedure that authorized expedited removal of criminal
aliens. Under this change, non- permanent resident aggravated felons and lawful permanent residents
who have fewer than two years of permanent residency can be placed in expedited administrative
removal proceedings and ordered removed without appearing before an immigration judge. See
IIRIRA § 308(b)(5). Additionally, aggravated felons are subject to expedited removal proceedings
which are required by statute to be completed “to the extent possible . . . before the alien’s release
from incarceration for the underlying aggravated felony.” IIRIRA § 242A; see 8 C.F.R. § 238.1
(procedures for expedited removal proceedings). In a further attempt to streamline the removal of
criminal aliens, IIRIRA authorized federal judges to issue judicial orders of removal at the time of
sentencing for aliens who are deportable. IIRIRA § 374. Judicial removal must be requested by the
United States Attorney with the concurrence of the Department of Homeland Security (“DHS”). Id.
Additionally, IIRIRA created the “stipulated deportation” process, in which a deportable alien can
enter into a plea agreement, subject to the concurrence of DHS, in which the alien stipulates to being
deported as part of his or her criminal sentence. Id. The stipulated deportation process eliminates
the need for an immigration hearing (and further DHS detention), and ensures that DHS will
immediately remove the alien from the United States upon completion of the alien’s sentence. The
statute requires the alien and his or her representative to waive an immigration hearing and waive
the right to appeal from the order of removal. Id.
Congress also repealed section 212(c) relief entirely, and replaced it with cancellation of
removal, a new discretionary form of relief that excludes aggravated felons from eligibility. IIRIRA
§ 304. Many criminal aliens challenged the retroactivity of AEDPA and IIRIRA’s amendments,
arguing that they detrimentally relied on the availability of section 212(c) relief in choosing to plead
guilty. The Supreme Court decided this issue in INS v. St. Cyr, 533 U.S. 289 (2001), and held that
criminal aliens who pleaded guilty prior to April 24, 1996, and who reasonably relied on the
availability of a section 212(c) waiver at the time of their plea, remained eligible. In light of St. Cyr,
an alien who entered a plea before April 24, 1996, and who was not convicted of an aggravated
felony or felonies for which he or she was incarcerated for five years or more, was generally eligible
to apply for a section 212(c) waiver. An alien who entered a plea between April 24, 1996, and April
1, 1997, and was not convicted of an aggravated felony, a controlled substance offense, a firearms
offense, or two or more crimes involving moral turpitude for which he or she received a sentence
of at least one year, was also generally eligible to apply for a section 212(c) waiver.
In section 348 of IIRIRA, Congress eliminated the availability of a section 212(h) waiver of
inadmissibility for any lawful permanent resident who has been convicted of an aggravated felony.
The waiver, however, remains available to non-lawful permanent resident aliens. There is no
judicial review of the Attorney General’s decision to grant or deny a section 212(h) waiver. See
IIRIRA § 348(a).

IIRIRA also restored the automatic bar to withholding of deportation (now called “restriction
on removal”) that AEDPA briefly removed for aggravated felons by establishing that an alien who
has been convicted of one or more aggravated felonies and sentenced to an aggregate of five years
or more, has been convicted of a “particularly serious crime.” IIRIRA § 305. Additionally, IIRIRA
carried forward the bar to voluntary departure for aggravated felons and further prohibited judicial
review of grants or denials of voluntary departure. IIRIRA § 304(a). Finally, in IIRIRA § 306,
Congress created a specific jurisdictional bar for certain criminal aliens, precluding such aliens from
seeking judicial review in any court. See 8 U.S.C. § 1252(a)(2)(C). While IIRIRA § 306 states that
“no court shall have jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense,” the Supreme Court in St. Cyr, 553
U.S. 289, held that criminal aliens who fell within the terms of the bar could challenge their removal
orders in district court habeas corpus proceedings.
X. The REAL ID Act of 2005.
The most recent major legislative change to the INA occurred on May 11, 2005, when
President Bush signed into law the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231
(“REAL ID Act”). The REAL ID Act amended the jurisdictional provisions of the INA, the asylum
provisions and other sections governing relief and protection, and the terrorism-related provisions
of the immigration statute. Relevant here, the jurisdictional amendments were effective
immediately, and were designed to overturn existing case law enabling aliens convicted of crimes
in the United States to challenge their removal orders in district court. See, e.g., St. Cyr, 553 U.S.
289. To that end, the amendments provided that all aliens, including criminal aliens, may obtain
review of constitutional claims and “questions of law” through petitions for review in the courts of
appeals. REAL ID Act § 106(a). Specified categories of criminal aliens, including aggravated
felons, are precluded from seeking review over the agency’s factual determinations. Id. The
provisions are fully retroactive and apply to removal proceedings instituted before, on, or after the
date of enactment, and to events or circumstances that occurred or arose before, on, or after
enactment. REAL ID Act § 106(b).

Immigration Consequences Of
Criminal Convictions:
Appendices
Appendix A: Glossary of Terms
Appendix B: Immigration Law Sources and Resources
Appendix C: What Constitutes a Conviction for Immigration

Purposes
Appendix D: The Method for Evaluating Immigration

Consequences of Criminal Convictions

Appendix A: Glossary of Terms
Adjustment of Status. A procedure allowing certain aliens in the United States to apply for lawful
permanent resident status (Green Card) without having to depart the United States and appear at an
American consulate in a foreign country. See 8 U.S.C. § 1255(a) & (i).
Admission/Admitted. With respect to an alien, the lawful entry of the alien into the United States
after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A).
Aggravate d Fe lony . A select group of offenses for which conviction entails significant additional
immigration consequences. The INA bars aliens convicted of aggravated felonies from obtaining
certain forms of discretionary relief, such as asylum, cancellation of removal, and voluntary
departure. Such aliens generally are precluded from obtaining judicial review to the greatest extent
permitted under the Constitution. See 8 U.S.C. § 1252(a)(2)(C). The definition of “aggravated
felony” is found at 8 U.S.C. § 1101(a)(43).
Alien. Any person not a citizen or national of the United States. 8 U.S.C. § 1101(a)(3). This
includes immigrants (Lawful Permanent Residents) and non-immigrants.
Alien File/A-File . A file maintained by the Department of Homeland Security (“DHS”) containing
an alien’s biographical information, applications for immigration benefits, documentation from any
prior immigration proceedings, a photograph, and fingerprints.
Alien Number/A-Number. A registration number assigned by DHS to each alien and used for
identification and tracking by DHS, the immigration courts, and the Board of Immigration Appeals.
Currently, A-numbers consist of the letter “A” followed by nine digits. For example: A012-345-
678.
Anti-Drug Abuse Act of 1988 (“ADAA”), Pub. L. 100-690, 102 Stat. 4181 (Nov. 18, 1988).
Section 7342 of the ADAA added the definition of “aggravated felony” to the Immigration and
Nationality Act (“INA”).
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 132, 110
Stat. 1273 (Apr. 24, 1996). Amended the Immigration and Nationality Act to provide for expedited
removal of criminal and terrorist aliens.
Asylee. An alien within the United States who has been granted the protection of the United States
asylum laws because of persecution or a well-founded fear of persecution in his or her home country.

Revised November 2010 A-1 of Criminal Convictions
Board of Immigration Appe als (“Board” or “BIA”). The appellate body within the Department
of Justice’s Executive Office For Immigration Review (“EOIR”) that hears administrative appeals
from decisions of Immigration Judges and from certain decisions made by the United States Citizen
and Immigration Services and by Customs and Border Proection.
Cancellation of Removal. A form of relief from removal for permanent residents and
non-permanent residents. See 8 U.S.C. § 1229b(a) & (b).
Child. For immigration purposes, an unmarried person under the age of 21 years. 8 U.S.C.
§ 1101(b)(1). There are specific provisions regarding children born out of wedlock, stepchildren,
and adopted children, which can be found in the comprehensive definition at 8 U.S.C.
§ 1101(b)(1)(A)-(F).
Conviction. With respect to an alien, a formal judgment of guilt of the alien entered by a court or,
if adjudication of guilt has been withheld, where: (i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a
finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed. 8 U.S.C. § 1101(a)(48)(A). Any reference to a term of imprisonment
or a sentence with respect to an offense is deemed to include the period of incarceration or
confinement ordered by a court of law regardless of any suspension of the imposition or execution
of that imprisonment or sentence in whole or in part. 8 U.S.C. § 1101(a)(48)(B).
Crime Involving Moral Turpitude (“CIMT”). A ground of deportability and inadmissibility

under the INA. See 8 U.S.C. §§ 1182(a)(2)(A) and 1227(a)(2)(A). “Moral turpitude” is not defined
in the INA, but various courts have recognized that moral turpitude generally refers to conduct that
involves fraud or is inherently base, vile, and depraved, and contrary to the accepted rules of morality
and the duties owed between persons and to society in general.
Departme nt of Homeland Security (“DHS”). The department created by the Homeland Security
Act, and to which the functions of the former Immigration and Naturalization Service (“INS”) were
transferred.
De portation. The term used prior to April 1, 1997, to refer to the formal removal of an alien from
the United States. It also refers to the type of immigration proceedings commenced prior to April
1, 1997, to remove an illegal or criminal alien who has made an entry into the United States.
Entry Without Inspection (“EWI”). Formerly, aliens who entered without inspection by an
immigration officer were considered deportable under 8 U.S.C. § 1251(a)(1)(B) (1990). Under the
amended INA, they are now known as aliens present without admission or parole (and may
alternatively be referred to as “PWI” or “PWAP”), and are considered to be inadmissible. See
8 U.S.C. § 1182(a)(6)(A). Aliens who entered at a place or time other than as designated by DHS
may be criminally prosecuted. See 8 U.S.C. § 1325.

Exclus ion. Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, the formal denial of an alien’s entry into the United States, or the formal removal of the
alien from the United States following an exclusion hearing.
Exe cutive Office for Immigration Review (“EOIR”). An office within the U.S. Department of
Justice that oversees the activities of the Office of the Chief Immigration Judge (including the
immigration court system) and the Board of Immigration Appeals.
Good Moral Character. An element aliens must demonstrate in order to be eligible for various
immigration benefits. See, e.g., 8 U.S.C. §§ 1229a (cancellation of removal) and 1427(a)
(naturalization). The INA does not define “good moral character,” but sets forth a non-exclusive list
of circumstances that foreclose a finding of good moral character. 8 U.S.C. § 1101(f). A catchall
provision makes clear that these per se rules are not exclusive: “The fact that any person is not
within any of the foregoing classes shall not preclude a finding that for other reasons such person
is or was not of good moral character.”
Green Card. Commonly used term to describe the Alien Registration Receipt Card (Form I-551)
issued to lawful permanent residents in lieu of a visa. The first such cards were issued in 1946 and
were green in color. Although the cards later ceased to be green, they are still commonly called
“green cards.”
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.
No. 104-208, Div. C, 110 Stat. 3009-546 (Sept. 30, 1996). IIRIRA replaced “deportation” and
“exclusion” proceedings with a single type of proceeding before immigration judges: “removal
proceedings.” It also stripped courts of jurisdiction to review discretionary decisions by the Attorney
General (i.e., the Board of Immigration Appeals), including immigration bond, parole, and certain
relief from removal.
Immigrant. Every alien seeking to enter the U.S. is presumed to be an immigrant, that is intending
to settle here permanently, unless he or she can prove that he or she is a non-immigrant as defined
in 8 U.S.C. § 1101(a)(15)(A)-(V). 8 U.S.C. § 1184(b).
Immigration Judge. An attorney appointed by the Attorney General as an administrative judge to

conduct removal proceedings. 8 U.S.C. § 1101(b)(4); 8 C.F.R. § 1003.10.
Immigration Act of 1990 (“IMMACT90”), Pub. L. No. 101-649, 104 Stat. 5005 (Nov. 29, 1990).
Effective as of November 29, 1990. Among other things, it added two types of crimes to the INA’s
definition of “aggravated felony”: (1) crimes of violence for which the alien is sentenced to or
confined for a period of five years, and (2) money laundering.

Immigration and Nationality Act of 1952 (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (June 27,
1952). Establishes the basic structure of our immigration laws. The INA sometimes is referred to
as the McCarran-Walter Act after the bill’s sponsors: Senator Pat McCarran (D-Nevada) and
Congressman Francis Walter (D-Pennsylvania). Although it stands alone as a body of law, the INA
is also codified at 8 U.S.C. § 1101 et seq. Congress has amended the INA numerous times, but it
remains the basic statutory body of immigration law.
Immigration and Nationality Technical Corrections Act of 1994 (“INTCA”), Pub. L. No.
103-416, 108 Stat. 4320 (Oct. 25, 1994). Among other things, it expanded the class of aggravated
felonies.
Immigration Marriage Fraud Amendments of 1986 (“IMFA”), Pub. L. No. 99-639, 100 Stat.
3537 (1986). These amendments impose strict conditions on any alien seeking to become a lawful
permanent resident through marriage to a United States citizen or permanent resident, including
conditional residency for a two-year period.
Immigration Reform Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359 (Nov.
6, 1986). Among other things, IRCA established the Criminal Alien Hearing Program, which
allowed immigration authorities to place convicted criminal aliens in deportation proceedings while
the alien was still in criminal detention as a means to expedite deportation.
Institutional Hearing Program (“IHP”). Refers to removal hearings held inside correctional
institutions while the alien is serving his or her criminal sentence.
Judicial Re moval. The procedure through which a United States District Judge may order the
removal of a criminal alien during the sentencing phase of criminal proceedings. See 8 U.S.C.
§ 1228(c).
Lawful Permanent Resident (“LPR”). An alien who has been conferred permanent resident status,
or an alien who has a “Green Card.” Upon meeting the statutory prerequisites for naturalization, an
LPR may apply to become a naturalized citizen. 8 U.S.C. § 1427.
Naturalization. The process of conferring citizenship of a state on a person after birth. 8 U.S.C.
§ 1101(a)(23). See also 8 U.S.C. § 1400, et seq.
Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”), Pub. L. No.
105-119, 111 Stat. 2193 (Nov. 19, 1997). NACARA provided various forms of immigration
benefits and relief from deportation to certain Nicaraguans, Cubans, Salvadorans, Guatemalans,
nationals of former Soviet bloc countries and their dependents.

Non-Immigrant. An alien admitted to the United States for a temporary duration. 8 U.S.C.
§ 1101(a)(15)(A)-(V).
Notice to Appear (“NTA”). The NTA (Form I-862) is the charging document used by DHS to
place an alien in removal proceedings. The charging document was formerly called an Order to
Show Cause (“OSC”).
Parolee. An alien seeking admission at a port of entry who appears to DHS to be inadmissible, but
for “urgent humanitarian reasons” or “significant public benefit” is allowed to come into the United
States, provided the alien is not a security or flight risk. See 8 C.F.R. § 212.5(b).
Particularly Serious Crime. Crime for which a conviction will render an alien ineligible for
asylum or withholding of removal. For purposes of asylum eligibility, all aggravated felony offenses
are expressly declared by statute to be “particularly serious” crimes constituting a danger to the
community. 8 U.S.C. § 1158(b)(2)(B)(i). Other crimes may also be determined to be “particularly
serious” for asylum purposes. See 8 U.S.C. § 1158(b)(2)(A)(ii) & (B)(ii). For purposes of
withholding of removal, a particularly serious crime includes an aggravated felony for which a five-
year or longer sentence is ordered (whether imposed or suspended). 8 U.S.C. § 1231(b)(3)(B)(ii).
Other crimes may also be determined to be “particularly serious” despite the length of sentence
imposed. 8 U.S.C. § 1231(b)(3)(B).
REAL ID Act, Pub. L. No. 109-13, 119 Stat. 302 (May 11, 2005). Among other things, the REAL
ID Act streamlined the piecemeal judicial review of orders of removal by channeling them all to the
United States Courts of Appeals and tightened laws on applications for asylum and removal of aliens
for terrorist activity.
Refugee. A person who is outside the country of his or her nationality who is unable or unwilling
to return to that country because of past persecution or a well-founded fear of persecution based on
race, religion, nationality, political opinion, or membership in a particular social group. 8 U.S.C.
§ 1101(a)(42).
Removal. Following IIRIRA, the removal of an alien from the United States after a removal
proceeding commenced on or after April 1, 1997. Among other things, IIRIRA consolidated
deportation and exclusion proceedings into unified “removal” proceedings in which an immigration
judge determines (1) whether an alien is subject to removal from the United States based on charges
of inadmissibility or deportability filed by DHS and (2) whether the alien is eligible for any relief
or protection from removal.
“S” Visa. A limited number of non-immigrant visas granted to aliens who have crucial, reliable
information concerning criminal or terrorist activity, and are willing to provide such information to
United States law enforcement authorities in ongoing investigations or prosecutions. See 8 U.S.C.
§ 1101(a)(15)(S).

Serious Criminal Offense. For purposes of 8 U.S.C. § 1182(a)(2)(E) (certain aliens involved in
serious criminal activity who assert immunity from prosecution): (1) any felony; (2) any crime of
violence, as defined in section 18 U.S.C. §16; or (3) any crime of reckless driving or of driving while
intoxicated or under the influence of alcohol or of prohibited substances if such crime involves
personal injury to another. 8 U.S.C. § 1101(h).
Voluntary Departure (“VD”) . The privilege of voluntarily departing the United States in lieu of
being removed.
U.S. Citize ns hip and Immigration Services (“CIS”). The agency within DHS responsible for
adjudicating applications for immigration benefits, including claims for refugee status and asylum.
U.S. Customs and Border Protection (“CBP”). An agency within DHS responsible for enforcing
the immigration laws at our nation’s borders and ports of entry. The U.S. Border Patrol and the
functions of the former INS inspectors have been transferred to this agency.
U.S. Immigration and Customs Enforcement (“ICE”). The agency within DHS principally
responsible for enforcing the immigration laws in the interior of the United States.

Appendix B: Immigration Law Sources and Resources
I. Introduction.
The discussion of sources and list of resources in this appendix is not comprehensive but is
intended to direct interested parties to key legislative and regulatory provisions, administrative and
judicial decisions, and select resources that may be helpful in better understanding immigration law
in general and particularly in analyzing potential immigration consequences of guilty pleas in
criminal proceedings.
II. Constitutional and Federal Statutory Authority.
The United States Constitution gives Congress plenary authority to regulate immigration.
See U.S. Const. art. I, § 8, cl. 4 (“Congress shall have [p]ower . . . [t]o establish an uniform [r]ule
of [n]aturalization”). Pursuant to this authority, Congress enacted the Immigration and Nationality
Act of 1952 (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952), over President Truman’s veto and
established the basic structure of our immigration laws. The INA is codified at 8 U.S.C. § 1101 et
seq.
Congress has amended the INA numerous times, but it remains the basic statutory body of
immigration law. Some of the more significant amendments relevant to this monograph include:
A. Anti-Drug Abuse Act of 1988 (“ADAA”), Pub. L. No. 100-690, 102 Stat. 4181
(Nov. 18, 1988). Section 7342 of the ADAA added the definition of “aggravated
felony” to the INA.
B. Immigration Act of 1990 (“IMMACT90”), Pub. L. No. 101-649, 104 Stat. 4978
(Nov. 29, 1990). Among other things, IMMACT § 501 added two types of crimes
to the INA’s definition of “aggravated felony”: (1) crimes of violence for which the
alien is sentenced to or confined for a period of five years, and (2) money laundering.
C. Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (Apr. 24, 1996). AEDPA amended the INA to provide for
the expedited removal of criminal and terrorist aliens. These amendments included
a provision to eliminate discretionary relief for most criminal aliens illegally present
in the United States, as well as a statutory bar to judicial review of deportation orders
for such aliens.

Revised November 2010 B-1 of Criminal Convictions
D. Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (Sept. 30, 1996).
IIRIRA replaced “deportation” and “exclusion” proceedings with a single type of
proceeding before immigration judges: “removal proceedings.” It also stripped
courts of jurisdiction to review discretionary decisions by the Attorney General and
his or her delegates, including those related to immigration bond, parole, and certain
relief from removal.
E. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (May 11, 2005). Among
other things, the REAL ID Act streamlined the piecemeal judicial review of orders
of removal by channeling them all to the United States Courts of Appeals and
tightened laws on applications for asylum and removal of aliens for terrorist activity.
For a more detailed description of significant amendments to the INA, see Section 5, Brief
Overview of Criminal Law-Related Amendments to the Immigration and Nationality Act.
III. Federal Regulations and Agencies with Immigration Authority.
The general provisions of the INA, as enacted and amended by Congress, are interpreted and
implemented by regulations issued by various agencies. After these regulations are published in
the Federal Register, they are collected and published in the Code of Federal Regulations
(“C.F.R.”). The C.F.R. is arranged by subject title and generally parallels the structure of the United
States Code.
Title 8 of the C.F.R. deals with “Aliens and Nationality,” as does Title 8 of the United States
Code. Thus, most regulations dealing with immigration are found within this title, including those
promulgated by the Department of Homeland Security and the Department of Justice. Other
departments with authority over immigration matters, namely the Department of Labor and
Department of State, have regulations in titles 20 and 22 of the C.F.R., respectively.
A. Department of Homeland Security.
On March 1, 2003, the Immigration and Naturalization Service (“INS”), which was an
agency within the Department of Justice, was abolished by the Homeland Security Act of 2002
(“HSA”), Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). The INS’s functions were divided
among three agencies within the newly created United States Department of Homeland Security
(“DHS”): (1) Immigration and Customs Enforcement (“ICE”), which principally is responsible for
enforcing the immigration laws in the interior of the United States; (2) Citizenship and Immigration
Services (“CIS”), which is responsible for adjudicating applications for immigration benefits,
including affirmative claims for asylum and refugee status; and (3) Customs and Border Protection
(“CBP”), which is responsible for enforcing the immigration laws at the nation’s borders.

Although the INS has been abolished and its functions transferred to DHS agencies, the
regulations – and even the INA – still contain references to the Attorney General and INS officials.
According to the Homeland Security Act, 6 U.S.C. § 557:
With respect to any function transferred by or under this chapter (including under a
reorganization plan that becomes effective under section 542 of this title) and
exercised on or after the effective date of this chapter, reference in any other Federal
law to any department, commission, or agency or any officer or office the functions
of which are so transferred shall be deemed to refer to the Secretary, other official,
or component of the Department to which such function is so transferred.
Regulations governing DHS are located at 8 C.F.R. chapter I (8 C.F.R. §§ 1.1-507).
B. Department of Justice.
Within the Department of Justice, the Executive Office for Immigration Review (“EOIR”)
is responsible for adjudicating immigration cases. Specifically, under delegated authority from the
Attorney General, EOIR interprets and administers federal immigration laws by conducting
immigration court proceedings, appellate review, and administrative hearings. For a more detailed
explanation of removal proceedings, see Section 1, Overview of Removal Process.
EOIR consists of three components: (1) the Office of the Chief Immigration Judge, which
is responsible for managing the numerous immigration courts located throughout the United States
where immigration judges adjudicate individual cases; (2) the Board of Immigration Appeals
(“Board”), which primarily conducts appellate review of immigration judge decisions and certain
decisions by DHS; and (3) the Office of the Chief Administrative Hearing Officer, which adjudicates
immigration-related employment cases.
After the transfer of INS’s functions to DHS on March 1, 2003, a new 8 C.F.R. chapter V
was established to recodify the regulations governing EOIR, which remained within the Department
of Justice. See 68 Fed. Reg. 10349 (March 5, 2003). Within 8 C.F.R. chapter V, regulations
governing the Board are found in Subpart A (8 C.F.R. §§ 1003.1-1003.8); those governing the Office
of the Chief Immigration Judge are found in Subpart B (8 C.F.R. §§ 1003.9-1003.11); and those
governing the immigration court’s rules of procedure are found in Subpart C (8 C.F.R. §§ 1003.12-
47).
C. Department of Labor.
The Department of Labor is involved in those cases in which an alien seeks admission to the
United States on the basis of his or her occupational qualifications. The relevant regulations
promulgated by the Department of Labor are found at 20 C.F.R. §§ 655-56.

D. Department of State.
The Department of State’s primary responsibility in the immigration context is issuing (or
denying) visas for aliens to enter the United States. The relevant regulations promulgated by the
Department of State are found at 22 C.F.R. §§ 41-62.
IV. Administrative Agency Decisions.
A. Department of Justice: EOIR.
As discussed above, EOIR is responsible for adjudicating the removability of aliens in

removal proceedings and any defensive applications for relief and protection filed therein. Decisions
issued by immigration judges are not published and are not binding precedent; however, the Board
publishes administrative appellate decisions, which are binding on all DHS officers and immigration
judges unless overruled by the Attorney General or a federal court.
There currently are 25 bound volumes of Board decisions from August 1940 to the present,
titled “Administrative Decisions Under Immigration and Nationality Laws of the United States.”
Many of these decisions analyze whether an alien is removable for a conviction under certain state
or federal statutes. Published – and some unpublished – Board decisions also are available on
private online legal databases (e.g., LexisNexis and Westlaw). Unpublished Board decisions are not
binding authority. The Board posts new published decisions on EOIR’s website at
http://www.justice.gov/eoir/vll/libindex.html.
B. Department of Homeland Security: USCIS–AAO.
The Administrative Appeals Office (“AAO”), or Administrative Appeals Unit (“AAU”),1 is

an office within USCIS, a component agency of DHS, which has appellate jurisdiction over certain
decisions of USCIS field offices and regional service centers, including, among other things, various
waiver applications, certain visa petitions, and naturalization applications.2
1
The regulations refer to this entity as the “Administrative Appeals Unit”; however, it is
now called the “Administrative Appeals Office.” 59 Fed. Reg. 60,065, 60,066 (Nov. 22, 1994).
2
Specifically, AAO has appellate jurisdiction over those matters described at 8 C.F.R.
§ 103.1(f)(3)(iii) (as in effect on February 28, 2003), with two exceptions: (1) petitions for
approval of schools and the appeals of denials of such petitions have been the responsibility of
ICE since November 1, 2004; and (2) applications for S non-immigrant status have been the
responsibility of the Office of Fraud Detection and National Security of USCIS since October
2004. See USCIS Adjudicator’s Field Manual § 3.5(c). Current regulations do not contain
8 C.F.R. § 103.1(f)(3)(iii). The 2003 version of this regulation is available at:

Historically, AAO decisions were deemed precedent decisions or non-precedent decisions.
8 C.F.R. § 103.3(c) (2003). Precedent AAO decisions are published along with precedent Board
decisions in bound volumes titled “Administrative Decisions Under Immigration and Nationality
Laws of the United States” and are available through private online legal databases (e.g., LexisNexis
and Westlaw). Non-precedential decisions have no binding authority on other USCIS adjudications.
In 2005, AAO began publishing “USCIS Adopted Decisions.” These decisions are available at
http://www.uscis.gov and provide guidance to applicants, petitioners, practitioners, and Government
officials in the correct interpretation of immigration law, regulations, and policy.
V. Judicial Decisions.
The Board is not a federal court, but its decisions generally are subject to judicial review in
the United States Court of Appeals in the Circuit where the immigration judge completed the alien’s
removal proceedings. The Circuit Courts can vary greatly in their case law, so it is important to
research decisions in the relevant circuit.
The AAO similarly is not a federal court, but its decisions generally are subject to judicial
review in the United States District Courts. The district court decisions may then be appealed to the
United States Courts of Appeals.
The Supreme Court may review Circuit Court decisions on immigration matters, and has
published decisions of its own, which are binding on all courts.
United States Supreme Court: http://www.supremecourtus.gov

United States Courts of Appeals: http://www.uscourts.gov/Court_Locator.aspx
United States District Courts: http://www.uscourts.gov/courtlinks/Court_Locator.aspx
VI. Researching Immigration Law on Westlaw and LexisNexis.
Both Westlaw (http://www.westlaw.com) and LexisNexis (http://www.lexis.com) offer users

specialized research tools in the immigration context. Westlaw has an “Immigration Practitioner”
tab, which allows users to search databases of statutes and regulations, administrative and judicial
decisions, administrative resources, practice guides, law review and news articles, and recent
developments in immigration law.
On LexisNexis, when performing a “Quick Search,” users can specify that their search be
performed in the “Immigration” practice area. LexisNexis also has an “Immigration” tab that users
can select under the “Look for a Source” option on the “Search” page. The “Immigration” tab allows
http://edocket.access.gpo.gov/cfr_2003/8cfr103.1.htm (last visited June 14, 2010).

users to find statutes and regulations, judicial and administrative decisions, law review articles, and
emerging issues in immigration law.
VII. Official Government Agency Websites.
A. Department of Homeland Security: http://www.dhs.gov

U.S. Immigration and Customs Enforcement: http://www.ice.gov
U.S. Customs and Border Protection: http://www.cbp.gov
U.S. Citizenship and Immigration Services: http://www.uscis.gov
U.S. Citizenship and Immigration Services Historical Reference Library:
http://207.67.203.70/U95007Staff/OPAC/
B. Department of Justice: http://www.justice.gov

Executive Office for Immigration Review: http://www.justice.gov/eoir
Executive Office for U.S. Attorneys: http://www.justice.gov/usao/eousa
Office of Immigration Litigation: http://www.justice.gov/civil/oil/index.htm
C. Department of Labor: http://www.dol.gov
D. Department of State: http://www.state.gov
VIII. Government Publications.
A. EOIR’s Immigration Law Advisor. This is a professional monthly newsletter that

is intended solely as an educational resource to disseminate information on
developments in immigration law pertinent to the immigration courts and the Board.
Any views expressed therein are those of the authors and do not represent the
positions of EOIR, the Department of Justice, the Attorney General, or the U.S.
Government. Past issues are available at:
http://www.justice.gov/eoir/vll/ILA-Newsleter/lib_ila.html.
B. OIL’s Immigration Litigation Bulletin. The Immigration Litigation Bulletin is an

internal publication about immigration litigation matters. The purpose of the
publication is to keep litigating attorneys within the Departments of Justice and
Homeland Security informed about immigration litigation matters and to increase the
sharing of information between the field offices and Main Justice. The views
expressed in this publication do not necessarily reflect the views of the Office of
Immigration Litigation or the Department of Justice. Past issues of the Immigration
Litigation Bulletin that have been released pursuant to Freedom of Information Act
requests are available at: http://www.justice.gov/civil/oil/ImmigrationBulletin.htm.

C. United States Attorneys’ Manual. The United States Attorneys’ Manual is designed
as a quick and ready reference for United States Attorneys, Assistant United States
Attorneys, and Department of Justice Attorneys responsible for the prosecution of
violations of federal law. It contains general policies and some procedures relevant
to the work of the United States Attorneys’ Offices and to their relations with the
legal divisions, investigative agencies, and other components within the Department
of Justice. Title 4 of the manual discusses immigration litigation. The manual is
available at: http://www.justice.gov/usao/eousa/foia_reading_room/usam/.
IX. Non-Governmental Resources.3
A. Treatises and Casebooks.
1. Thomas Alexander Aleinikoff, David A. Martin, and Hiroshi Motomura,

Immigration and Citizenship: Process and Policy (5th e d.,
Thompson/West 2003). This is a leading law school case book.
2. Robert C. Divine and R. Blake Chisam, Immigration Practice (2010-2011

ed., Juris Publis hing). This annually published book covers all aspects of
immigration law in one volume with over 3,000 footnote citations to the wide
range of statutes, regulations, court and administrative agency cases, policy
memos, operations instructions, agency interpretive letters, and internet sites.
3. Charles Gordon, Stanley Mailman and Stephen Yale-Loehr, Immigration

Law and Procedure (Matthew Bender 1966 - present). This is a leading
treatise on immigration law. It contains case citations supporting statements
made in the text. The looseleaf publication consists of 20 volumes and is
updated on a regular basis.
4. Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook: A

Comprehensive Outline and Reference Tool (12th ed., American
Immigration Lawyer’s Association 2010). This is a popular outline with
citations to Supreme Court, Federal Court, and Board decisions, as well as
federal regulations.
3
Disclaimer: The listing of these resources should not be viewed as an endorsement by
the Department of Justice. The Department takes no responsibility for, and exercises no control
over, the views, accuracy, accessibility, copyright or trademark compliance or legality of the
material contained therein.

5. Stephen H. Legomsky, Immigration and Refugee Law and Policy (4th ed.,
Foundation Press 2005). This is a leading law school case book.
B. Periodicals.
1. AILA – Immigration and Nationality Law Handbook. This is a “how to”

annual publication by the American Immigration Lawyers’ Association. It
contains sections on various topics prepared by AILA members in
conjunction with their annual conference.
2. Bender’s Immigration Bulletin (Matthew Bender). This biweekly

newsletter provides updates on immigration law and summaries of
administrative and federal courts decisions. A daily edition with a searchable
archive is available online at http://bibdaily.com/.
3. Georgetown Immigration Law Journal. This student-edited law journal is

exclusively devoted to the study of immigration.
4. Immigration and Nationality Law Review. This student-edited annual

law journal is published by William S. Hein & Co. of New York and is
affiliated with the University of Cincinnati College of Law.
5. Interpreter Releases (West Group). This is a weekly newsletter on all

aspects of immigration law.
C. Private Internet Resources.
1. American Immigration Lawye rs As sociation (AILA). AILA is the

national association of attorneys and law professors who practice and/or teach
immigration law. Its website includes links to online resources and AILA
publications.
2. ILW.COM. ILW.COM is a leading immigration law publisher. Its website

offers thousands of pages of information on immigration law. ILW also
publishes Immigration Daily, a daily “newspaper” on immigration law.
3. Siskind’s Immigration Bulletin. An electronic newsletter covering

developments in immigration law.

X. Jurisdiction-Specific Resources: Immigration Consequences of Select Convictions.4
A. Federal.
• Dan Kesselbrenner & Sandy Lin, Immigration Consequences of Select

Federal Convictions Chart (National Immigration Project 2010), (last
visited June 15, 2010).
• Defending Immigrants Partnership, Representing Noncitizen Criminal

Defendants: A National Guide (2008), (last visited June 15, 2010).
• Immigrant Defense Project and Defending Immigrants Partnership, Duty

of Criminal Defense Counsel Representing an Immigrant Defendant After
Padilla v. Kentucky (2010), (last visited June 15, 2010).
B. Arizona. Katherine Brady, Holly Cooper, et al., Quick Reference Chart &
Annotations for Determining Immigration Consequences of Selected Arizona
Offenses (Immigrant Legal Resource Center 2006), (last visited June 15, 2010).
C. California.
• Katherine Brady, Norton Tooby, et al., Defending Immigrants in the Ninth

Circuit: Impact of Crimes Under California and Other State Laws (2009).
• Katherine Brady, Holly Cooper, et al., Quick Reference Chart for

Determining Selected Immigration Consequences of Selected California
Offenses (Immigrant Legal Resource Center 2005), (last visited June 15,
2010).
D. Connecticut. Jorge L. Baron and Alix Walmsley, A Brief Guide to Representing

Noncitizen Criminal Defendants in Connecticut (2005), (last visited June 15,
2010).
4
Disclaimer: The listing of these resources should not be viewed as an endorsement by
the Department of Justice. The Department takes no responsibility for the accuracy of the
following resources or the conclusions reached therein. It should be noted that these resources
may be of limited use for predicting immigration consequences of particular crimes because an
alien’s removal proceedings may arise in a federal circuit different from that of the convicting
criminal court.

E. District of Columbia. Gwendolyn Washington, PDS Immigrant Defense
Project’s Quick Reference Sheet (Public Defenders Service for the District of
Columbia 2008), (last visited June 15, 2010).
F. Florida.
• Florida Immigrant Advocacy Center, Immigration Consequences of

Selected Florida Offenses: A Quick Reference Chart (2003), (last visited
June 15, 2010).
• Florida Immigrant Advocacy Center, Quick Reference Guide to the Basic

Immigration Consequences of Select Florida Crimes (2003), (last visited
June 15, 2010).
G. Illinois.
• Maria Theresa Baldini-Potermin, Defending Non-Citizens in Illinois,

Indiana, and Wisconsin (Heartland Alliance National Immigrant Justice
Center 2009), (last visited June 15, 2010).
• National Immigration Project, Selected Immigration Consequences of

Certain Illinois Offenses (2003), (last visited June 15, 2010).
H. Indiana. Maria Theresa Baldini-Potermin, Defending Non-Citizens in Illinois,

Indiana, and Wisconsin (Heartland Alliance National Immigrant Justice Center
2009), (last visited June 15, 2010).
I. Maryland. Abbreviated Chart for Criminal Defense Practitioners of the

Immigration Consequences of Criminal Convictions Under Maryland State Law
(Maryland Office of the Public Defender & University of Maryland School of
Law Clinical Office 2007), (last visited June 15, 2010).
J. Massachusetts. Dan Kesselbrenner & Wendy Wayne, Selected Immigration

Consequences of Certain Massachusetts Offenses (National Immigration Project
K. Michigan. Immigration Consequences of Criminal Convictions (2008), (last

L. New Jersey. Joanne Gottesman, Quick Reference Chart for Determining the
Immigration Consequences of Selected New Jersey Criminal Offenses (2005),
(last visited June 15, 2010).

M. New Mexico. Jacqueline Cooper, Reference Chart for Determining Immigration
Consequences of Selected New Mexico Criminal Offenses (2005), (last visited
June 15, 2010).
N. New York.
• Association of the Bar of the City of New York, The Immigration

Consequences of Deferred Adjudication Programs in New York City
(2007), (last visited June 15, 2010).
• Manny Vargas, Appendix A: Quick Reference Chart for Determining Key

Immigration Consequences of Common New York Offenses (2003), (last
O. North Carolina. Sejal Zota and John Rubin, Immigration Consequences of a

Criminal Conviction in North Carolina (Office of Indigent Defense Services
P. Texas. Jodi Goodwin and Thomas Esparza, Jr., Immigration Consequences of

Selected Texas Offenses: A Quick Reference Chart (2008), (last visited June 15,
2010).
Q. Vermont. Rebecca Turner, Reference Chart for Immigration Consequences of

Select Vermont Criminal Offenses (2006), (last visited June 15, 2010).
R. Virginia. Mary Holper, Immigration Consequences of Selected Virginia Statutes

(2007), (last visited June 15, 2010).
S. Washington. Ann Benson and Johnathan Moore, Quick Reference Chart for
Determining Immigration Consequences of Selected Washington State Offenses
Under the RCW (Washington Defender Association’s Immigration Project 2006),
(last visited June 15, 2010).
T. Wisconsin. Maria Theresa Baldini-Potermin, Defending Non-Citizens in Illinois,

Indiana, and Wisconsin (Heartland Alliance National Immigrant Justice Center

Appendix C: What Constitutes a Conviction
For Immigration Purposes
I. Definition of Conviction in the INA.
The INA provides the following definition of what constitutes a conviction for immigration
purposes:
(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of
the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding
of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is

deemed to include the period of incarceration or confinement ordered by a court of
law regardless of any suspension of the imposition or execution of that imprisonment
or sentence in whole or in part.
8 U.S.C. § 1101(a)(48).
The definition discusses two types of convictions:
1. Under the first prong, there must be a “formal judgment of guilt.”
2. Under the second prong, there must be both (i) a jury verdict, guilty plea, plea
of nolo contendere, or admission of facts sufficient to warrant a finding of
guilt, and (ii) an imposition of punishment.
II. Finality of Conviction.
A. The statutory definition of “conviction” does not contain any requirement that the
conviction be final before it results in immigration consequences. Immigration
consequences can therefore attach even if the alien has a pending challenge against
the validity of his or her conviction.

Revised November 2010 C-1 of Criminal Convictions
B. Generally, an alien cannot collaterally attack a conviction in immigration
proceedings.
C. With some limited, circuit-specific exceptions, only convictions vacated by a state

court on the basis of procedural and substantive defects are not valid convictions for
immigration purposes. Convictions vacated for rehabilitative reasons remain valid
convictions.
III. Examples of Possible Valid and Invalid Convictions Under the INA.
The following are some examples of what may or may not constitute convictions for
immigration purposes. It is by no means an exhaustive list, but comes from published Board of
Immigration Appeals (“Board”) decisions and federal district and circuit court opinions.
A. Possible Valid Convictions Under the INA.
1. Pleas. An Alford plea, no contest plea, and nolo contendere plea all satisfy
the “formal judgement of guilt” requirement for a conviction.
2. Deferred Adjudication. Both the Board and the federal courts have held
that a deferred adjudication is a conviction for immigration purposes where
it involves an admission of guilt and limitations on the defendant’s liberty.
See H.R. Conf. Rep. No. 104-828 at 224 (1996) (“Joint Explanatory
Statement”) (clarifying “Congressional intent that even in cases where
adjudication is ‘deferred,’ the original finding or confession of guilt is
sufficient to establish a ‘conviction’ for purposes of the immigration laws”).
• Note: New York’s Pretrial Diversion Agreement (“PDA”) is

generally not considered a conviction because guilt has not been
established by trial, plea or admission; nor have sufficient facts been
admitted to support a finding of guilt.
• Note: A “guilty-filed” disposition under Massachusetts law may or

may not constitute a conviction under the INA.
• Note: One court has held that a Massachusetts conviction, in which

the defendant admitted to facts sufficient for a finding of guilt, with
a continuation without a finding (“CWOF”), and with the imposition
of a restitution order, is a conviction under the INA.
3. Court Martial. A judgment of guilt that has been entered by a general

court-martial of the United States Armed Forces qualifies as a “conviction”
under the INA.

4. Probation Before Judgment. A court’s grant of probation before judgment
generally constitutes a conviction under the INA.
5. Guilty Pleas Held In Abeyance. A guilty plea held in abeyance may satisfy
the statutory definition of conviction.
6. Punishments and Penalties. The imposition of costs and surcharges in the

criminal sentencing context constitutes a form of “punishment” or “penalty”
for purposes of establishing that an alien has a “conviction” under the INA.
Also, a term of probation counts as punishment for purposes of defining
conviction. Where the only consequence of a criminal judgment is a
suspended non-incarceratory sanction, however, it may not constitute a
conviction for immigration purposes.
B. Possible Invalid Convictions Under the INA.
1. Juvenile Delinquency Proceedings. Juvenile delinquency proceedings are

not criminal proceedings, and findings of juvenile delinquency are not
convictions for immigration purposes.
• Note : At least one court has held that a defendant’s status as a

“youthful trainee” under Michigan’s Holmes Youthful Trainee Act
constitutes a conviction under the INA because the state court retains
discretion to “revoke that status at any time . . . [and] enter an
adjudication of guilt and proceed as provided by law.”
• Note: One court has held that a conviction under the District of
Columbia Code’s Youth Rehabilitation Act is a criminal conviction
for immigration purposes.
2. Violations. “Violations” are mutually exclusive from “convictions,” where

no disability or legal disadvantage attached to a “violation,” and “violation”
proceedings are not the same as criminal proceedings.
• Note: One court has held that a defendant found guilty of a

“violation” under Oregon law in a proceeding conducted pursuant to
section 153.076 of the Oregon Revised Statutes does not have a
“conviction” for immigration purposes.

Appendix D: The Method for Evaluating
Immigration Consequences of
Criminal Convictions*
I. Introduction.
This reference guide summarizes a two-step process that is generally used for evaluating the
immigration consequences of a conviction, which is often referred to as the “categorical” and
“modified categorical” analysis. In some instances, a simple reading of the statue will not be
sufficient to determine whether a crime falls within the INA’s definition of a deportable or
inadmissible offense. Rather, the reader will need to utilize the categorical and modified categorical
analyses, and consult relevant case law to determine the immigration consequences. While it is
unclear whether Padilla requires an attorney to apply this analysis in ascertaining the risk of removal
given that the analysis often turns on ever-evolving and conflicting administrative and judicial
precedents, we include this reference guide for the reader’s information.
II. The Categorical Analysis.
A. Introduction. The Board of Immigration Appeals (“Board”) and courts employ a

method for evaluating the immigration consequences of a criminal conviction that
resembles the “categorical” approach outlined by the Supreme Court in Taylor v.
United States, 495 U.S. 575 (1990).
B. The Categorical Analysis. In general, the categorical approach consists of

comparing the elements of the federal or state criminal statute of conviction with the
elements of the “generic definition” of the criminal ground of removal under the
INA. This approach looks only at the statutory definition of the offense (as defined
by the statute or the courts) – not the underlying facts of the actual crime – to
determine whether the alien’s conviction falls under the generic definition. If it does,
the alien is removable under the ground at issue. In order to find that a statute of
conviction describes a crime that falls outside of the generic definition, it must be
shown that there is a realistic probability, not a theoretical possibility, that the state
would apply its statute to conduct falling outside the generic definition.
*
This methodology applies only where the immigration statute requires a conviction to
render an alien removable or inadmissible.

Revised November 2010 D-1 of Criminal Convictions
C. Relevant Definitions.
1. Generic Definition. The generic definition consists of the elements/criteria

of the immigration criminal ground of removal. The generic definition of the
immigration offense may be found in a statute (like the INA), Board case law,
or judicial decisions. For example, the Supreme Court provided the “generic
definition” of “burglary” in Taylor.
2. Statute of Conviction. The state or federal statute under which the alien was
convicted.
3. Categorical Match. When the mere fact of conviction necessarily meets the
criteria of the criminal ground of removal under the INA (i.e. all the elements
of the statute of conviction match the elements of the generic definition),
there is a categorical match.
4. Elements. The elements of the statute of conviction are those factors that
must be established (beyond a reasonable doubt) by the prosecutor in order
to prove a conviction. The elements of the “generic definition” are those
criteria that must be established (by clear and convincing evidence) in order
to render an alien removable.
D. Example of a Categorical Match.
Maine’s burglary statute: A person is guilty of burglary if he/she enters or remains in a

structure knowing that he/she is not licensed or privileged to do so, with the intent to commit
a crime therein. Me. Rev. Stat. Ann. tit. 17-A, § 401 (modified).
The elements of Maine’s statute of The elements of the generic definition of

conviction are: burglary under Taylor are:
(1) unlawful or unprivileged (1) unlawful or unprivileged
(2) entry or remaining in (2) entry into, or remaining in
(3) a structure (3) a building or structure
(4) with the intent to commit a crime (4) with intent to commit a crime
therein
This statute has all of the elements of the generic definition as set forth in Taylor and thus
appears to be a categorical match. It will often require research of the state/federal case law
and other sources to determine whether the definition of each element of the statute of

conviction matches or is narrower than the definition of each element of the generic offense.
Merely imagining a scenario where the statute of conviction could be violated in a way that
falls outside of the generic definition (for example, suggesting that under the Maine statute
above, “structure” could include a fenced, but open field), is insufficient; rather the alien
must identify an actual case where the statute has been so applied. See Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007).
Note: It does not matter if the statute of conviction required more elements than the generic
definition (i.e. if it is narrower than the generic definition). For example, if the above statute
also required that the act be done at night, it would still be a categorical match with the
elements of the generic definition.
III. The Modified Categorical Analysis.
A. Introduction. If the statute of conviction covers a broader range of offenses than

the generic definition – i.e., a person can be convicted of violating the statute in a
way that may or may not meet the generic definition – the Board and the courts may
go beyond the “mere fact of conviction” and look at a limited set of conviction
documents to determine whether the alien was convicted of an offense falling within
the generic definition.
B. Divisible Statute of Conviction. The Board and most circuits use the term
“divisible” to describe the process for when they can resort to the documents of
conviction to establish that a certain conviction constitutes a removable offense.
There is a split among the circuits as to what “divisible” means, but in general it
means that a statute of conviction criminalizes acts which constitute a removable
offense as well as acts that do not.
C. Examples.
1. Example Of An Overbroad Statute.
State X’s Burglary Statute: Whoever unlawfully and intentionally breaks and enters
a locked shelter with intent to commit a felony is guilty of a felony. Assume that
under State X’s law, a shelter includes a tent.
The elements of State X’s The elements of the generic definition of

statute of conviction are: burglary under Taylor are:
(1) unlawfully and (1) unlawful or unprivileged

intentionally
(2) breaking and entering (2) entry into, or remaining in

(3) a locked shelter (3) a building or structure
(4) with intent to commit a (4) with intent to commit a crime

felony
In this case, element #3 would appear to make this statute broader than the generic
definition’s element requiring a building or structure because a “shelter” includes a
tent. In some circuits this is sufficient to resort to a modified categorical approach
to determine what type of shelter was broken into. If the documents establish that it
was a building, rather than a tent, then this is a match with the elements of the
generic definition of burglary.
2. Example of a Statute Written in the Disjunctive.
Massachusetts Burglary Statute: Whoever unlawfully breaks and enters a building,

ship, vessel, or vehicle, with intent to commit a felony. . . shall be punished by
imprisonment. Mass. Gen. Laws Ann. ch. 266, § 16 (modified).
The elements of the state The elements of the generic definition of

statute of conviction are: burglary under Taylor are:
(1) unlawful (1) unlawful or unprivileged
(2) breaking or entering (2) entry into, or remaining in
(3) a building, ship, vessel, or (3) a building or structure

vehicle
(4) with intent to commit a (4) with intent to commit a crime

felony
In this case, element #3 is not a categorical match because the statute provides a list
of options, one that would match the elements of the generic definition of burglary
(a building) and others that would not (a ship, vessel, or vehicle). In most, if not all,
circuits a modified categorical approach can be used to determine what type of
shelter was burglarized. If the permissible conviction documents establish that the
alien was convicted of breaking into a building, then this is a match with the elements
of the generic definition of burglary.

3. Example of A Statute Missing an Element.
California’s burglary statute: Every person who enters any house, room, apartment
or other building with intent to commit grand or petit larceny or any felony is guilty
of burglary. Cal. Penal Code § 459 (modified).
The elements of California’s The elements of the generic definition of

burglary statute are: burglary under Taylor are:
(1) (1) unlawful or unprivileged
(2) entry into (2) entry into, or remaining in
(3) any house, room, (3) a building or structure,

apartment or other building
(4) with intent to commit (4) with intent to commit a crime

grand or petit larceny or any
felony
In this case, element #1 is missing because the statute does not require that the entry
be unlawful or unprivileged. At least one circuit has found that one cannot resort to
the criminal record to establish removability under such circumstances because the
record can never show that the jury or trier of fact was actually required to find (or
that the defendant actually pled to) all the elements of the generic offense.
D. Permissible Documents under the Modified Categorical Approach. Documents

that may be considered under a modified categorical approach include: a charging
document (such as an indictment, information, or complaint); a plea agreement or
transcript of the colloquy between judge and defendant in which the factual basis for
the plea was confirmed by the defendant; or some comparable judicial record of this
information (such as an official record of judgment). Courts can only consider a
police report insofar as it is incorporated into the terms of a plea agreement. The
amount of information and detail on a permissible criminal document is often the
most critical factor in determining removability.
IV. Circumstance-Specific Approach.
A. Introduction. The Supreme Court in Nijhawan v. Holder, 129 S. Ct. 2294 (2009),
recognized that in certain circumstances the INA refers to “generic crimes” and in
other circumstances it refers to the specific acts in which an offender engaged on a
specific occasion. In the latter circumstance, the “categorical” approach was found
to be inapplicable.

B. Circumstance-Specific Approach. Where the “generic definition” refers to a
“circumstance-specific requirement,” the courts will apply a “circumstance-specific”
approach and look to the facts and circumstances underlying an offender’s
conviction.
C. Permissible Evidence under the “Circumstance Specific” Approach. Documents

that may be considered under a circumstance specific approach include
sentencing- related documents (such as a sentencing stipulation or restitution order);
consideration is not limited to the documents approved under the modified
categorical approach.
D. Relevant Definitions.
1. Ge ne ric Crime. A “generic” crime does not refer to criteria that invites
inquiry into the underlying facts that led to a conviction. “Generic crimes”
are relatively unitary categorical concepts like murder, fraud, or theft.
2. Circumstance-Specific Requirement. A circumstance-specific requirement

refers to the specific way in which an offender committed a crime on a
specific occasion and thus invites inquiry into the underlying facts of the
crime. “Circumstance-specific requirements” need not be elements of the
statute of conviction, but must be established before the immigration court
in accordance with the relevant burden of proof.
E. Example.
State X’s Bank Fraud statute: Whoever knowingly executes, or attempts to execute, a
scheme or artifice to defraud a financial institution shall be guilty of a felony.
INA ground of removal: Any alien convicted of an aggravated felony offense that involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000 is deportable.
8 U.S.C. §§ 1101(a)(43)(M)(i) and 1227(a)(2)(A)(iii).
The relevant element of State X’s The elements/criteria of the generic

statute of conviction is: definition under the INA are:
(1) knowingly executes, or attempts (1) involves fraud or deceit

to execute, a scheme or artifice to
defraud
(2) _____________ (2) loss to the victim or victims exceeds

$10,000

In this case, criteria #2 is missing because the statute of conviction does not require that the
fraud involve a particular loss to the victims. The Supreme Court held that the loss
requirement under 8 U.S.C. § 1101(a)(43)(M)(i) does not need to be an element of the fraud
or deceit crime of conviction, but rather “the monetary threshold applies to the specific
circumstances surrounding an offender’s commission of a fraud and deceit crime on a
specific occasion.” Nijhawan, 129 S. Ct. at 2298, 2302. Issues of divisibility and evidentiary
limitations under the modified categorical approach, therefore, are inapplicable in this
inquiry. Rather, the evidence considered must be fair and demonstrate by the relevant burden
of proof the amount of loss associated with the particular conviction at issue.

APPENDIX F
“Particularly Serious Crime” Bars on
Asylum and Withholding of Removal:
Case Law Standards and Sample Determinations
[For information on the “particularly serious crime” (“PSC”) bars to the immigration relief of
asylum or withholding of removal, see Chapter 3, section 3.4(c)(1).]
Offense PSC? Case Law/Notes

Felony/Misdemeanor Yes, for asylum, For asylum purposes, an aggravated felony is
constituting an regardless of deemed to be a PSC by statute. See 8 U.S.C.
“aggravated felony” sentence. 1158(b)(2)(B)(i).
(For sample “aggravated Yes, for withholding For withholding of removal purposes, an aggra-
felony” determinations, of removal, if sen- vated felony is (1) statutorily deemed to be a PSC
see Appendix C.) tenced to 5 or more if the individual has been sentenced to an aggre-
years in prison; gate term of imprisonment of at least 5 years for
presumptively yes, any aggravated felony conviction(s), see 8 U.S.C.
if involved unlawful 1231(b)(3)(B), and (2) under Attorney General
trafficking in con- opinion, presumptively deemed to be a PSC if
trolled substances; involving unlawful trafficking in controlled sub-
maybe, if sentenced stances, regardless of sentence imposed. See
to less than 5 years Matter of Y-L, A-G, R-S-R, 23 I&N Dec. 270
and not involving (A.G. 2002). [See below.] A determination of
unlawful trafficking whether a noncitizen convicted of any other
in controlled sub- aggravated felony and sentenced to less than
stances. five years imprisonment has been convicted of a
PSC requires an individual examination of the
nature of the conviction, the sentence imposed,
and the circumstances and underlying facts of the
conviction. Matter of L-S, 22 I&N Dec. 645 (BIA
1999), overruled in part, Matter of Y-L, supra;
Matter of S-S-, 22 I&N Dec. 458 (BIA 1999),
overruled in part, Matter of Y-L, supra; Matter of
Frentescu, 18 I&N Dec. 244 (BIA 1982), modi-
fied, Matter of C-, 20 I&N Dec. 529 (BIA 1992),
Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988)
[See below.]
Misdemeanor (single) that Usually not. Without unusual circumstances, a single convic-
is not an “aggravated tion of a misdemeanor offense is not a “particularly
felony” serious crime.” See Matter of Juarez, 19 I&N
Dec. 664 (BIA 1988).
Note: If the misdemeanor offense is one which
may be deemed an “aggravated felony” (e.g., NY
misdemeanor sale of marijuana), it may neverthe-
less be deemed a PSC.
(5/03) Copyright © 2003 New York State Defenders Association F-1

APPENDIX F

Felony that is not an Depends. In order to determine whether a crime is a PSC
“aggravated felony” (or (if it is not deemed or presumed to be so for with-
for withholding of removal holding of removal purposes as an “aggravated
purposes, an aggravated felony” with a prison sentence of 5 years or more
felony with a prison sen- or as an aggravated felony involving unlawful
tence of less than 5 years trafficking in controlled substances, or not
and not involving unlawful deemed to be so for asylum purposes as any
trafficking in controlled “aggravated felony,” regardless of sentence), the
substances) BIA considers several factors: (i) the nature of the
conviction, (ii) the circumstances and underlying
facts for the conviction, (iii) the type of sentence
OR imposed, and (iv) whether the type and circum-
stances of the crime indicate that the individual
will be a danger to the community.
Misdemeanor (second or See Matter of Frentescu, 18 I&N Dec. 244 (BIA
subsequent) that is not an 1982), modified, Matter of C-, 20 I&N Dec. 529
“aggravated felony” (BIA 1992), Matter of Gonzalez, 19 I&N Dec.
682 (BIA 1988). For some specific crimes that
have been found to be PSCs, see the specific
crimes listed by type of offense in the sample
determinations that follow in this chart.
Sample PSC Case Law Determinations

NOTE: Many of the crimes listed below that have been found in the past to be PSCs would now be con-
sidered aggravated felonies due to the expansion of the definition of aggravated felonies. They would
therefore on that basis alone be deemed PSC for asylum, but not necessarily for withholding of removal.
See “Felony/Misdemeanor constituting an ‘aggravated felony’” above.
DRUG OFFENSES
Drug trafficking offense Yes. Matter of Y-L, A-G, R-S-R, 23 I&N Dec. 270 (A.G.
2002). An individual convicted of an aggravated
felony involving unlawful trafficking in controlled
substances will presumptively be deemed to have
been convicted of a particularly serious crime for
withholding of removal purposes. To overcome
that presumption, an individual would have to
demonstrate the most extenuating circumstances
that are both extraordinary and compelling. Those
circumstances must include, at a minimum, all of:
(1) a very small quantity of controlled substance;
(2) a very modest amount of money paid for the
drugs in the offending transaction; (3) merely
peripheral involvement by the individual in the
criminal activity, transaction, or conspiracy; (4)
the absence of any violence or threat of violence,
implicit or otherwise, associated with the offense;
(5) the absence of any organized crime or terrorist
organization involvement, direct or indirect, in
relation to the offending activity; and (6) the
absence of any adverse or harmful effect of the
activity or transaction on juveniles
Matter of U-M-, 20 I&N Dec. 327 (BIA 1991).

Conviction of the sale or transportation of mari-
huana is a conviction of a PSC. The Board found
that “the crime of trafficking in drugs is inherently
a particularly serious crime. The harmful effect to
F-2 Copyright © 2003 New York State Defenders Association (5/03)

“PARTICULARLY SERIOUS CRIME” BARS ON ASYLUM & WITHHOLDING OF REMOVAL

society from drug offenses has consistently been
recognized by Congress in the clear distinctions
and disparate statutory treatment it has drawn
between drug offenses and other crimes.”
Matter of Gonzalez, 19 I&N 682 (BIA 1988).

Two convictions for possession of a controlled
substance with intent to deliver with a three-year
prison sentence are convictions of PSCs.
Mosquera-Perez v. INS, 3 F.3d 553 (1st Cir.

1993). A noncitizen convicted of possessing a
half ounce of cocaine with intent to distribute,
and who had received a suspended sentence and
probation had been convicted of a PSC.
Chong v. Dist. Dir., 264 F.3d 378 (3d Cir. 2001).

Leaving undisturbed the Board of Immigration
Appeals’ determination that conspiracy to distrib-
ute heroin and possession of heroin with intent to
distribute with aggregate two year sentence were
aggravated felonies that, under the facts and cir-
cumstances of that case, were also PSCs for with-
holding of removal purposes.
Arauz v. Rivkind, 845 F.2d 271 (11th Cir. 1988).

Conviction of possession of marijuana with intent
to distribute is a PSC.
Eskite v. INS, 901 F.Supp. 530 (E.D.N.Y. 1995).

Notwithstanding a pardon, an alien who was con-
victed in Florida of the sale of $30 of crack
cocaine and for possession with intent to sell or
deliver was convicted of a per se PSC.
One time simple possession Maybe not. May depend on factors such as whether the
of drugs offense is a felony or misdemeanor, the quantity
of drugs involved (which may be viewed as speak-
ing to whether the drugs were for personal use or
for distribution), and the sentence imposed by the
criminal court. See Matter of Toboso-Alfonso, 20
I&N Dec. 819 (BIA 1990) (Simple possession of
cocaine is not a particularly serious crime).
VIOLENT OFFENSES AND SEX OFFENSES
Crimes against persons, Usually. Violent and sex offenses at issue in the case law
generally have usually been found to be PSCs, at least
where the conviction is of a felony.
Assault with a dangerous Yes. Hamama v. INS, 78 F. 3d 233 (6th Cir. 1996).
weapon (felony) Note: Misdemeanor assault may not be PSC (see
below).
Assault with a dangerous Maybe. Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001).
weapon Where neither BIA nor Immigration Judge consid-
ered the several factors set forth in Matter of
Frentescu [see above], the case was remanded for
such analysis. Here, the sentence was 15-45
months imprisonment, the ‘dangerous weapon’
(continued)

APPENDIX F

was a rock, and the crime was committed in the
context of a running dispute between two street
vendors. Note: Misdemeanor assault may not be
PSC (see below).
Assault with a deadly No. Without unusual circumstances, a single convic-
weapon (misdemeanor) tion of a misdemeanor offense is not a “particularly
serious crime.” See Matter of Juarez, 19 I&N
Dec. 664 (BIA 1988).
Battery, aggravated Yes. Matter of B-, 20 I&N Dec. 427 (BIA 1991).
Burglary, aggravated Yes. Matter of Garcia-Garrocho, 19 I&N Dec. 423
(NY Burglary, first degree) (BIA 1986), modified on other grounds, Matter of
Gonzalez, 19 I&N Dec. 682 (BIA 1988).
Conviction under New York Penal Law Section
140.30 (Burglary in the first degree) requires a
finding that the applicant accomplished his crime
with one or more aggravating circumstances that
involve “physical injury or potentially life-threat-
ening acts.” Because of the potential for physical
harm, the BIA found that the applicant’s crime
was a PSC on its face.
Kidnapping and burglary Yes. In re Choeum, 129 F.3d 29 (1st Cir. 1997).
Lewd and lascivious act with Yes. Bogle-Martinez v. INS, 52 F.3d 332 (9th Cir.
a child 14-15 years of age 1995).
Manslaughter (NY Man- Yes. Ahmetovic v. INS, 62 F.3d 48 (2d Cir. 1995). The
slaughter, first degree) Second Circuit affirmed the findings of the
Immigration Judge and the BIA that first-degree
manslaughter is per se a “particularly serious
crime” notwithstanding evidence of mitigating
factors (Ms. Ahmetovic shot and killed her hus-
band following a domestic dispute and there was
evidence that the killing had been in self-defense).
Manslaughter (NY Man- Maybe; regardless of Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).
slaughter, second degree) whether it is a PSC, Individuals convicted of violent or dangerous
is a bar to asylum crimes will not be granted asylum, even if they
because deemed a are technically eligible, except in extraordinary
“violent and dan- circumstances, such as those involving national
gerous crime” security or foreign policy considerations, or cases
in which the individual clearly demonstrates that
denial would result in exceptional and extremely
unusual hardship. Here, the Attorney General
found the alien “manifestly unfit” for a discre-
tionary grant of asylum relief under circumstances
that included alien’s confession to beating and
shaking a 19-month-old child, and that a coroner
corroborated a “wide-ranging collection of
extraordinarily severe injuries”
Manslaughter, involuntary Yes. Franklin v. INS, 72 F.3d 571 (8th Cir. 1996).
Rape Yes. Smith v. USDOJ, 218 F. Supp. 2d 357 (W.D.N.Y.
2002). An alien convicted of rape with a sentence
of 2–6 years imprisonment is convicted of an
aggravated felony and therefore a particularly
serious crime for both asylum and withholding
purposes

“PARTICULARLY SERIOUS CRIME” BARS ON ASYLUM & WITHHOLDING OF REMOVAL

Rape, attempted Yes. Gatalski v. INS, 72 F.3d 135 (9th Cir. 1995).
Robbery Yes. Matter of S-V, 22 I&N Dec. 1306 (BIA 2000).
Conviction required intent to deprive a person of
property through use of force, violence, assault or
putting in fear, sentence imposed was 4 years, and
record indicated violence against persons.
Robbery with a firearm Yes. Matter of S-S-, 22 I&N Dec. 458 (BIA 1999),
overruled in part, Matter of Y-L, supra. An alien
convicted of first degree robbery of an occupied
home while armed with a handgun and sentenced
to fifty-five months imprisonment is convicted of
a PSC.
Robbery with a deadly Yes. Matter of L-S-J, 21 I&N Dec. 973 (BIA 1997).
weapon Conviction resulting in 2½ year sentence was an
aggravated felony, and the committed offense
threatened violence with a handgun and put lives
in danger.
Shooting with intent to kill Yes. Nguyen v. INS, 991 F.2d 621 (10th Cir. 1993).
Unlawful sexual intercourse Yes. Bogle-Martinez v. INS, 52 F.3d 332 (9th Cir.
with a person under 18 1995).
PROPERTY OFFENSES
Crimes against property, Less likely to be There is little case law dealing with whether
generally found to be a PSC offenses against property may be considered
than crimes against PSCs, however the BIA stated in Matter of
persons. Frentescu, 18 I&N Dec. 244 (BIA 1982), modi-
fied, Matter of C-, 20 I&N Dec. 529 (BIA 1992),
Matter of Gonzalez, 19 I&N Dec. 682 (BIA
1988), that crimes against property are less likely
to be categorized as PSCs than crimes against per-
sons.
Burglary with intent to Not without aggra- Matter of Frentescu, 18 I&N Dec. 244 (BIA
commit theft vating circumstances. 1982), modified, Matter of C-, 20 I&N Dec. 529
(BIA 1992), Matter of Gonzalez, 19 I&N Dec.
682 (BIA 1988). Conviction of burglary with
intent to commit theft, where sentence imposed
was for 3 months, was not a PSC given the cir-
cumstances: “Although the applicant did enter a
dwelling, there is no indication that the dwelling
was occupied or that the applicant was armed; nor
is there any indication of an aggravating circum-
stance. Further, the applicant received a suspend-
ed sentence after spending a relatively short peri-
od of time in prison (3 months). Such sentence
. . . reflects upon the seriousness of the applicant’s
danger to the community.”
Burglary, aggravated (NY Yes. Matter of Garcia-Garrocho, 19 I&N Dec. 423
Burglary, first degree) (BIA 1986), modified on other grounds, Matter of
Gonzalez, 19 I&N Dec. 682 (BIA 1988).
Conviction under New York Penal Law Section
140.30 (Burglary in the first degree) requires a
finding that the applicant accomplished his crime
with one or more aggravating circumstances that
involve “physical injury or potentially life-
(continued)

APPENDIX F

threatening acts.” Because of the potential for
physical harm, the BIA found that the applicant’s
crime was a PSC on its face.
FIREARM OFFENSES
Firearm trafficking offenses Yes. Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA
1996).
Robbery with a firearm Yes. Matter of S-S-, 22 I&N Dec. 458 (BIA 1999),
overruled in part, Matter of Y-L, supra. An alien
convicted of first degree robbery of an occupied
home while armed with a handgun and sentenced
to fifty-five months of imprisonment is convicted
of a PSC.
Possession of a firearm Yes. Hamama v. INS, 78 F. 3d 233 (6th Cir. 1996).
during a felony
Simple possession of a Maybe not. May depend on factors such as whether the
firearm offense is a felony or misdemeanor, evidence of
actual or threatened use of the firearm against
another, and the sentence imposed by the criminal
court.
OTHER OFFENSES
Bringing an illegal alien Yes for asylum Matter of L-S-, 22 I&N Dec. 645 (BIA 1999),
into the U.S. because an aggra- overruled in part, Matter of Y-L, supra. Conviction
vated felony; of bringing an illegal alien into the United States
No for withholding United States in violation of 8 U.S.C. 1324(a)(2)
of removal. (B)(iii) in light of nature of the offense, the length
of the sentence imposed (here, 3½ months), and
the circumstances under which this particular
crime occurred.

IMMIGRATION/CRIMINAL PRACTICE ALERT
PRACTICAL TIPS TO AVOID AGGRAVATED FELONIES
As you know, aggravated felonies (“AF”) are one category of crime that may trigger deportation. While
we should, of course, always strive to avoid convictions that may trigge r deportation, it is particularly
important to avoid AF convictions because, in most cases, these convictions render a client mandatorily
deportable without any possibility of discretionary relief. AF’s also have all sorts of other nasty
consequences including: a potential twenty-year prison term for illegal reentry and expedited removal
procedures for non-permanent residents. While there are disadvantages for all non-citizens who are
convicted of AF’s, it is particularly important to avoid AF convictions for Lawful Permanent Residents.
There are twenty-one categories of AF’s, which you are free to read at your leisure. See 8 U.S.C. §
1101(a)(43). I wanted to quickly offer you some tips to avoid two common types of AF’s.
AGGRAVATED FELONIES TRIGGERED BY A ONE-YEAR TERM OF INCARCERATION
The following types of convictions will be considered AF’s if the client is sentenced to one year or more
of incarceration “regardless of any suspension of the imposition or execution of that imprisonment”:
• Theft • Obstruction of Justice (possibly including
• Violent Crimes (see previous practice alert Hindering Prosecution)
on recent developments in Crime of • Trafficking in Vehicle ID Numbers
Violence case law) • Receipt of Stolen Property
• Burglary • Document Fraud
• Counterfeiting/Forgery • Perjury/Bribery of a Witness/Subornation of
• Commercial Bribery Perjury
Below is a list of strategies designed to avoid triggering the AF grounds listed above. Since this list
encompasses most felonies it is necessary to be mindful of the strategies below whenever a non-citizen
client is facing a sentence of one year or more.
• Stack counts to run consecutively – as long as no individual count results in a sentence of a year
or more, a total term of incarceration of more than a year will not trigger these AF grounds.
• Waive presentence credits – if a client has served time pre-sentence it my be possible to waive
credit for that time in return for an actual sentence imposed of less than a year.
• Waive future conduct credits – it may be possible to waive future good conduct credits in return
for an actual sentence imposed of less than a year.
AGGRAVATED FELONIES TRIGGERED BY A $10,000 FINANCIAL INTEREST

The following types of convictions will be considered aggravated felonies if the record of conviction
reveals that the financial interest in the crime exceeded $10,000:
• Crimes Involving Fraud or Deceit ($10K loss to victim)
• Money Laundering (involving $10K)
• Tax Evasion ($10K loss to Government)
Below is a list of strategies designed to avoid the AF with $10,000 triggers.
• Keep restitution under $10,000
• During plea allocution contest any allegation in complaint involving $10,000 or more.
• Have client pay a portion of the loss voluntarily pre-sentence to reduce restitution under $10,000
• Make written plea agreement or oral stipulation that the loss to the victim is $10,000 or less
• If all else fails, make sure that the fine is labeled as “Restitution” not “Reparation” PL § 60.27
THESE STRATEGIES ARE DESIGNED TO GIVE CLIENTS A FIGHTING CHANCE IN SUBSEQUENT
IMMIGRATION PROCEEDINGS. THEY DO NOT GURANTEE PROTECTION FROM AN AF CHARGE
Peter Markowitz, The Bronx Defenders

Tool Kit for Prosecutors
Published: April 2011

FOREWORD
U.S. Immigration and Customs Enforcement (ICE) is the investigative agency in the Department
of Homeland Security (DHS). ICE’s primary mission is to promote homeland security and
public safety through the criminal and civil enforcement of federal laws governing border
control, customs, trade, and immigration. The agency has an annual budget of more than $5.7
billion dollars, primarily devoted to its two principal operating components - Homeland Security
Investigations (HSI) and Enforcement and Removal Operations (ERO).
Fostering and sustaining relationships with our external stakeholders, including federal and state
prosecutors, is a pivotal priority of ICE. ICE, through the Office of State, Local and Tribal
Coordination (OSLTC), builds and improves partnership activities with multiple stakeholders –
including state, local and tribal governments, law enforcement agencies/groups, local and state
prosecutors, and non-governmental organizations. The building of constructive relationships
with our stakeholders fosters community awareness and support for the agency's mission and
enhances our understanding of stakeholder issues related to our enforcement operations.
ICE recognizes that there may be situations where our federal and state prosecutor partners may
benefit from having a foreign national remain in the United States for a period of time to assist
with an ongoing investigation or to serve as a witness. Additionally, ICE understands that there
may be situations when a prosecutor requires the presence of an alien witness or victim and that
individual currently resides outside of the United States.
To demonstrate our commitment to strengthening coordination with our state and local
prosecutor partners, ICE developed this Tool Kit. This Tool Kit is aimed at helping prosecutors
navigate situations where important witnesses, victims, or defendants may face removal because
they are illegally present in the United States. ICE is committed to supporting the efforts of
prosecutors to bring criminals to justice. Our prosecutor partners are encouraged to engage ICE
officers, special agents, and attorneys and seek their assistance and expertise.
However, ICE also seeks the support and assistance of federal and state prosecutors to ensure
that foreign nationals who engage in criminal conduct are expeditiously removed from the
United States. In support of that effort, this Tool Kit includes guidance for obtaining stipulated
orders of removal, thereby eliminating the need for protracted immigration court proceedings.
Finally, this Tool Kit is intended to highlight the immigration consequences of a criminal
conviction. However, our prosecution partners should be cautioned that this is a complex area of
immigration law, and this document is only intended to provide a general overview. ICE looks
forward to providing you our continued support as we join together to protect our nation from all
threats.
No Private Right Statement
The Tool Kit for Prosecutors is not intended to, and does not create any rights,
privileges, or benefits, substantive or procedural, enforceable by any party against
the United States; its departments, agencies, or other entities; its officers or
employees; contractors or any other person.
_________________________________________________________________________
Page 2 of 35 www.ice.gov
TABLE OF CONTENTS
A. What options are available to a prosecutor who needs to keep an alien witness,
victim, or defendant in the United States for a criminal trial if that individual is not
legally authorized to remain in the United States?
1. Prosecutorial Discretion Tools

a. Deferred Action
b. Administrative Stay of Removal
2. Procedures for release/transfer from ICE Custody to aid state prosecution

efforts
3. Petitions for Victims of Criminal Activity including the Violence Against

Women Act (VAWA) of 1994
a. Continued Presence
b. T Nonimmigrant Status (T Visa)
c. U Nonimmigrant Status (U Visa)
4. S Visas (Note: although a valuable prosecution tool, the S Visa may not be
appropriate in most situations.)
B. What options are available to a prosecutor who needs to bring an alien witness,
victim, or defendant into the United States for a criminal trial who may not be
legally authorized to enter the United States?
1. Significant Public Benefit Parole

2. S Visas (Note: although a valuable prosecution tool, the S Visa may not be
appropriate in most situations.)
C. What are some general immigration consequences of a criminal conviction?
1. Overview of immigration consequences of criminal charge

2. Ineffective Assistance of Counsel: Padilla v. Kentucky, 130 S. Ct. 1473 (2010)
(The U.S. Supreme Court held that a criminal defendant may be able to set aside
his/her conviction based upon ineffective assistance of counsel if defense counsel
failed to properly advise the alien of the immigration consequences of the
criminal conviction.)
D. What are the options available to obtain a removal order without a formal
immigration hearing?
1. Stipulated Order of Removal by an Immigration Judge

2. Stipulated Judicial Order of Removal (Federal Court)
_________________________________________________________________________
A. What options are available to a prosecutor who needs to keep an alien witness, victim,
or defendant in the United States for a criminal trial if that individual is not legally
authorized to remain in the United States?
1. Prosecutorial Discretion Tools:

Prosecutorial discretion tools are often used when it is necessary to secure the witness, victim, or
defendant’s presence for the purpose of testifying at a criminal trial. These tools are not intended
to provide for the foreign national’s long- term presence in the United States.
In the course of their duties, ICE officers, attorneys, and HSI special agents encounter a variety
of situations in which they may be called upon to make discretionary decisions. The legal
requirements and the available scope of discretion will vary based upon the unique facts and
circumstances of a specific case. Prosecutorial discretion is a decision that a law enforcement
agency (LEA) takes regarding whether to enforce the law against someone. Discretion may be
utilized at any point in the removal process and may involve a decision not to arrest, charge,
prosecute, or remove an alien.
Decisions to exercise prosecutorial discretion are typically not subject to review or reversal by
the courts, except in extremely narrow circumstances, which makes it a powerful tool that must
be used judiciously. Discretionary decisions should implement ICE priorities and conserve
limited agency resources. ICE officers, special agents, and attorneys are expected to exercise
discretion in a judicious manner at all stages of the enforcement process—from planning
investigations to executing final orders of removal—subject to their chains of command and to
the particular responsibilities and authorities applicable to their position. To avoid the arbitrary
application of enforcement tools, officers, special agents, and attorneys must be able to articulate
the reasoning behind their decisions to refrain from initiating removal actions or utilizing other
enforcement tools.
Below is an overview of the various types of prosecutorial discretionary tools that law
enforcement officers and prosecutors may find useful when encountering cases involving foreign
nationals. These include deferred action and administrative stay of removal. In addition, ICE
has other tools to release an alien from custody, such as an order of supervision and an order of
recognizance.
a. Deferred Action:
Deferred Action (DA) is not a specific form of relief but rather a term used to describe the
decision-making authority of ICE to allocate resources in the best possible manner to focus on
high priority cases, potentially deferring action on cases with a lower priority. There is no
statutory definition of DA, but federal regulations provide a description: “[D]eferred action [is]
“an act of administrative convenience to the government which gives some cases lower
priority.…” See 8 C.F.R. § 274a.12(c)(14). There are two distinct types of DA requests: (i)
those seeking DA based on sympathetic facts and a low-enforcement priority, and (ii) those
seeking DA based on his/her status as an important witness in an investigation or prosecution.
Basically, DA means the government has decided that it is not in its interest to arrest, charge,
prosecute or remove an individual at that time for a specific, articulable reason.
_________________________________________________________________________
ICE gives LEA requests to exercise DA the utmost consideration as part of its commitment to
assist its law enforcement partners and in accordance with its statutory obligation to cooperate
with the Attorney General in protecting witnesses in the Witness Security Program., as outlined
in 18 U.S.C. § 3521.
Deferred Action (DA): Frequently Asked Questions:

How will I know if an alien witness is eligible for DA?
Does DA confer any immigration status upon an alien?
What is the process to obtain DA?
Does DA expire?
Is an alien who is granted DA permitted to work in the United States?
Q: How will I know if an alien witness is eligible for DA?

A: ICE considers DA requests based on a variety of factors and balances those interests
against its core mission to remove persons illegally present in the United States. ICE’s
decision to grant DA is purely discretionary. However, the factors generally considered
include: the criminal history of the alien; national security implications; the likelihood of
removal; the presence of sympathetic factors favoring the alien’s case; and/or whether a
law enforcement agency (LEA) desires the person’s presence for an ongoing
investigation or prosecution. ICE reviews every LEA request for DA, but the ultimate
determination is case specific.
Q: Does DA confer any immigration status upon an alien?

A: No. DA does not confer any immigration status upon an alien, nor is it in any way a
reflection of an alien’s immigration status. DA does not operate to cure any defect in
status under any section of the Immigration and Nationality Act (INA) for any purpose.
Since DA is not an immigration status, no alien has the right to obtain DA. Further, the
fact that an alien has been granted DA does not preclude ICE from commencing removal
proceedings at any time against him/her.
Q: What is the process to obtain DA?

A: To request DA for aliens in ICE custody, the sponsoring law enforcement agency (LEA)
(e.g., DEA, FBI, Secret Service, state and local law enforcement, etc.) typically will
initiate the process by contacting the local ICE Enforcement and Removal Operations
(ERO) Field Office Director (FOD) office. If the alien is not in custody, the request may
be made to either the FOD or to the appropriate Homeland Security Investigation’s (HSI)
Special Agent in Charge (SAC) office. The LEA’s written request and accompanying
risk and threat assessment should include the alien’s name, place of birth, date of birth,
and alien number (A-number), as well as relevant details about the alien’s immigration
status, general background on the investigation, and why the LEA is requesting DA.
If DA is granted and the alien is in detention, the sponsoring LEA will be notified that the
alien may be taken into their custody. However, the requesting LEA must arrange for the
alien’s transportation to any new facility. Also, LEAs are cautioned that if they fail to
take custody of an alien granted DA within the agreed upon period, ICE may cancel the
grant of DA and expeditiously make efforts to remove the individual from the United
_________________________________________________________________________
States. Once the alien is in the custody of the sponsoring LEA, it is the responsibility of
that LEA to monitor the alien and make sure that he/she abides by all the terms set forth
in the DA and to notify ICE of any violations that have occurred.
Procedures may vary depending on the alien’s immigration status, (e.g., whether the alien
is subject to mandatory detention, is in ERO or U.S. Marshals Service custody, has a final
order of removal, or has been approved for full acceptance into the Department of Justice
Witness Security Program). ICE will review the facts and merits of each case before
granting any request from another LEA.
Q: Does DA expire?
A: DA is granted for a specific period of time that ICE determines to be appropriate. Prior
to the DA expiration date, the requesting law enforcement agency should submit an
application for renewal. It should be noted that DA may be terminated at any time.
Q: Is an alien who is granted DA permitted to work in the United States?

A: An alien granted DA may be granted employment authorization. 8 C.F.R. §
274a.12(c)(14). Individuals who are eligible for employment authorization may file a
Form I-765, Application for Employment Authorization, to request an Employment
Authorization Document. Please note ICE does not adjudicate these employment
authorization applications; employment authorization applications are submitted to and
adjudicated by United States Citizenship and Immigration Services (USCIS), a separate
component of the Department of Homeland Security.
Contact information:
ICE Field Offices: http://www.ice.gov/contact/ero/
ICE Special Agent in Charge Offices: http://www.ice.gov/contact/inv/
ICE Offices of Chief Counsel: http://www.ice.gov/contact/opla/
b. Administrative Stay of Removal:

Administrative Stay of Removal (ASR) is a discretionary tool that permits ICE to temporarily
delay the removal of an alien. Any alien, or law enforcement agency (LEA) on behalf of an
alien, who is the subject of a final order of removal may request ASR from ICE. The request
must be filed on ICE Form I-246, Application for a Stay of Deportation or Removal, with the
Field Office Director (FOD) who has jurisdiction over the place where the alien resides. ASR
may be granted after the completion of removal proceedings up to the moment of physical
removal. Since ASR is an administrative decision to temporarily suspend removal of an alien, it
is not considered an immigration benefit or waiver; rather, it only bestows temporary relief from
removal. Furthermore, the decision of the FOD is final and may not be appealed
administratively. Neither the filing of the application request nor the failure to receive notice of
disposition of the request shall delay removal or relieve the alien from strict compliance with any
outstanding notice to surrender for removal.
When deciding whether ASR may be appropriate for your case, it is important to note that there
are two forms of ASR—one for admitted aliens ordered removed (aliens who actually presented
documents to an immigration officer when they came to the United States) and one for
_________________________________________________________________________
inadmissible aliens ordered removed (aliens who were not approved for legal admission at the
port of entry or aliens who entered the United States without going to a port of entry). As
discussed below, the availability of ASR as a temporary relief from removal will ultimately
depend on which category of removal is involved. If the final order of removal is based on a
ground of removability, the FOD has wide discretion to grant a stay of removal. In this instance,
ASR is typically granted in a case involving compelling humanitarian factors or a case where a
stay is deemed to be in the best interest of the government. The FOD may grant an ASR upon
his/her own initiative without the alien filing an application. Moreover, once granted, the ASR
may be for such a period of time and under such conditions as necessary to the individual case.
However, the detention provisions of INA § 241, 8 U.S.C. § 1231, will apply to an alien who
receives an ASR.
Alternatively, if the final order of removal is based on a ground of inadmissibility, section

241(c)(2) of the Immigration and Nationality Act (INA) authorizes ICE to stay removal of an
arriving alien in two limited circumstances: (i) where immediate removal is not practicable or
proper, or (ii) where the alien is needed to testify in the prosecution of a case involving a
violation of federal or state law. INA § 241(c)(2)(A), 8 U.S.C. § 1231(c)(2)(A). FODs and other
designated ICE officials have discretion to grant ASRs to arriving aliens based on the parole
factors described in 8 C.F.R. § 212.5, as well as the provisions of section 241(c)(2) of the INA.
Note, however, that aliens granted ASR because their removal is not immediately practicable or
proper are subject to detention during the period of ASR; meanwhile, aliens granted ASR in
order to testify in a legal case may be released upon the filing of an approved bond of at least
$500, an agreement to appear and testify as needed, and other prescribed conditions. INA §§
241(c)(2)(B), (C), 8 U.S.C. §§ 1231(c)(2)(B), (C).
Administrative Stay of Removal: Frequently Asked Questions:

How will I know if the alien defendant or witness is a candidate for ASR?
What is the process to obtain ASR?
How soon will my request for an ASR be decided?
Are there any legal bars (convictions) that might make the alien ineligible for ASR?
Are aliens granted ASR eligible for employment authorization?
Q: How will I know if the alien defendant or witness is a candidate for ASR?
A: Virtually any alien under a final order of removal may be a candidate for ASR. To
determine if an alien is the subject of a final order of removal, you may query the
individual in the National Law Enforcement Telecommunications System using an
Immigration Alien Query (IAQ). The ICE Law Enforcement Support Center will
respond to your IAQ electronically via an Immigration Alien Response (IAR). The IAR
will indicate if the alien is the subject of a final order of removal. Additionally, you may
contact your local ICE ERO Office. Prosecutors should note that ASR may not be the
most appropriate method for securing the appearance of an alien in ICE custody at a
future criminal proceeding or to act as a confidential informant. For assistance with your
request, you may contact your local ICE Office of Chief Counsel (OCC) or local ICE
ERO Field Office.
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Q: What is the process to obtain ASR?
A: As the prosecutor in a criminal matter, if you are aware that an alien, either in ICE
custody or at-large, is needed for an upcoming criminal proceeding as a defendant or
witness, you may request ASR from the FOD with authority over your area. The request
should contain the exact reasons for the request and any date the alien is needed in court.
The FOD will determine if the alien is amenable to ASR in consideration of the factors
listed in 8 C.F.R. § 212.5 and INA § 241(c)(2), 8 U.S.C. § 1231(c)(2). The decision of
the FOD is final and may not be appealed administratively. Neither the filing of the
application request nor the failure to receive notice of disposition of the request shall
delay removal or relieve the alien from strict compliance with any outstanding notice to
surrender for removal.
Q: How soon will my request for ASR be decided?

A. Generally, all requests that ICE receives are responded to as quickly as possible. If an
ICE detainee is needed for a criminal proceeding on a specific date, you should be sure to
include this information in your request so that it may be decided in a timely manner.
Q: Are there any legal bars (convictions) that might make the alien ineligible for ASR?
A: While an alien’s convictions may be taken into account in determining whether to grant
ASR, the statute does not specify any legal bars (such as criminal convictions) that
restrict an alien’s eligibility for ASR.
Q: Are aliens granted ASR eligible for employment authorization?

A: No. There is no statutory or regulatory authority to grant employment authorization to an
alien based on a grant of a stay of deportation or removal.
2. Procedures for release/transfer from ICE custody to aid state prosecution efforts:
Given its limited resources, ICE strives to utilize its detention space for dangerous criminal
aliens. It is important to note that ICE administrative detention is not punitive and serves only to
further the removal of an alien.
Many aliens enter ICE custody each year while they have pending criminal proceedings or are
needed to provide testimony in a criminal matter. Once an alien is placed in custody, the ICE
Field Office Director (FOD) for that area has general responsibility for that individual. In many
cases, the FOD has broad discretion and several legal mechanisms available to him/her that
could help facilitate the release of detained aliens. Among those tools, the FOD could agree to
release an alien to state or local authorities under a state writ or may exercise his/her
prosecutorial discretion by granting a request for deferred action (DA) in an alien’s case.
If an ICE detainee is needed as a defendant or witness in an upcoming criminal proceeding, you

may obtain a writ from an appropriate state or local judge ordering the alien’s appearance in
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court on a specific date. While federal agencies are not bound by state court orders, ICE will
generally honor the writ of a state or local judge directing the appearance of a detainee in court.
Once the writ is obtained and ICE has approved it, you should contact the FOD responsible for
your area in writing and request that he/she facilitate the alien’s transfer to state or local custody.
However, the requesting LEA must arrange for the alien’s transportation.
As referenced in other sections within this Tool Kit, deferred action (DA) is “an act of
administrative convenience to the government which gives some cases lower priority, …” in
recognition that ICE has limited enforcement resources and that every administrative effort
should be made to maximize enforcement of our immigration laws. 8 C.F.R. § 274a.12(c)(14).
A prosecutor can request DA to secure the release of an alien defendant or witness in a criminal
case back into the community. DA does not confer any immigration status upon an alien, nor
does it cure any defect in status under any section of the Immigration and Nationality Act (INA)
for any purpose.
Furthermore, it is important to understand that ICE has restriction and requirements as part of its
civil detention standards. Such rules will not allow ICE to hold an alien solely for the
prosecution of a case unrelated to ICE’s specific authority for civil detention. In some
circumstances, if the state or federal prosecutors are unable to secure the release of the alien or
their own custody of the alien witness, ICE may remove the alien from the United States. For
example, a writ requesting the alien’s presence for a trial in six months will not be honored if the
alien is subject to removal and can be removed.
Also referenced in other sections within this Tool Kit, prosecutorial discretion is a powerful tool
that ICE personnel must use responsibly and judiciously at all stages in the enforcement process.
Decisions as to whether or not to initiate removal proceedings or take other enforcement actions
must be determined based on the individual facts of each case. In addition, ICE has other tools
to release an alien from custody, such as an order of supervision and an order of recognizance.
Contact a local ICE office to discuss these options.
Procedures for release/transfer from ICE custody to aid state prosecution efforts:
Frequently Asked Questions
How will I know if the alien defendant or witness is a candidate for release on writ, DA, or other
forms of prosecutorial discretion?
What is the process to obtain release on writ, DA, or other forms of prosecutorial discretion?
How soon can the alien be released on writ, DA, or other forms of prosecutorial discretion?
Are there any legal bars (convictions) that might make the alien ineligible for release from ICE
custody?
Q: How will I know if the alien defendant or witness is a candidate for release on writ,
DA or other forms of prosecutorial discretion?
A: As the prosecutor in a criminal matter, if you are aware that an alien is in ICE custody
and is needed for an upcoming criminal proceeding as a defendant or witness, you should
consider requesting a writ from a state or local judge directing the alien’s appearance in
court. Once the writ is obtained, you should contact the FOD responsible for your local
area in writing to arrange for the transfer of the alien to state or local custody. There may
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be occasions when ICE may decide not to honor the writ. Alternatively, if you desire the
alien’s release under DA or other exercise of prosecutorial discretion, you must submit a
formal written request for the release of the alien (either by facsimile or letter) explaining
the reasons for the request along with a risk and threat assessment. The FOD will
determine if the alien is amenable to release under DA or other exercise of prosecutorial
discretion based on the specific facts of the individual case. If DA is granted, the
requesting LEA is responsible for monitoring the alien, ensuring he/she complies with all
of the terms of the DA, and notifying ICE of any violations that occur.
Q: What is the process to obtain release on writ, DA or other forms of prosecutorial

discretion?
A: The chief prosecuting attorney for your law enforcement agency (LEA) should submit a
formal written request for the specific action desired to the FOD responsible for your
local area. The request should contain the exact reasons for the request and any date(s)
the alien is needed in court. If you are requesting the transfer of custody of the ICE
detainee to a state or local LEA, you should include a copy of the writ directing the
alien’s appearance in court or an arrest warrant for the alien. Please include a point of
contact for the state and local LEA so that transfer arrangements, if approved, can be
made as expeditiously as possible.
If you are requesting DA or prosecutorial discretion for an alien in ICE custody, your
request should contain the exact reasons for the action desired and indicate if the release
from ICE custody is needed by a specific date. Your request should also include a point
of contact to whom the alien will be released, if such a decision is made. The FOD will
review the individual aggravating and mitigating factors of the case and determine if the
request is appropriate. You will receive a formal written notification from the FOD
informing you of the decision. If DA is granted, the requesting LEA is responsible for
monitoring the alien, ensuring he/she complies with all of the terms of the DA, and
notifying ICE of any violations that occur. This includes contacting ICE well ahead of
the expiration of the DA to either request another DA or to notify ICE that the LEA does
not intend to seek another DA. If at any point the LEA determines there is no longer a
need for the alien to remain in DA, or if a violation occurs, the LEA must notify ICE
immediately.
Q: How soon can the alien be released on writ, DA, or other forms of prosecutorial
discretion?
A: Generally, ICE responds to all the requests it receives as quickly as possible. Regardless
of the type of release you seek, if an ICE detainee is needed for a criminal proceeding on
a specific date, you should be sure to include this information in your request for release
so that it can be decided in a timely manner.
Q: Are there any legal bars (convictions) that might make the alien ineligible for
release from ICE custody?
A: Pursuant to sections 236(c) and 241(a)(2) of the INA, 8 U.S.C. §§ 1226, 1231, certain
criminal aliens are precluded from release from ICE detention. The FOD will consider
requests for release of such criminal aliens in consultation with the local Office of Chief
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Counsel and determine what, if any, release decision may be made. ICE reserves the
right not to honor a state court writ, or other request for an alien’s release. For example,
ICE may decline a request where compliance with the writ or request for release would
conflict with an ICE enforcement mission, such as the alien’s imminent removal from the
United States or transfer of an alien elsewhere within the United States.
Contact Information:
You can visit the following websites for contact information:
3. Petitions for victims of criminal activity:

Petitions for victims of criminal activity are often used to allow an individual to enter or remain
in the United States to assist in a criminal investigation or to testify at trial. In appropriate cases
this may ultimately enable the individual to remain in the United States for an extended period
and ultimately lead to U.S. citizenship. Congress passed the Violence Against Women Act
(VAWA) of 1994 as a response to growing concerns over gender-related violence. VAWA
provides that abused spouses, children, and parents of U.S. citizens or lawful permanent
residents can "self-petition" to obtain lawful permanent residence. These provisions prevent
abusers from using a victim's immigration status as a form of power and control by allowing
battered victims to independently self-petition for lawful status. Congress subsequently passed
the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), which reauthorized the
VAWA provisions of 1994 and created two new nonimmigrant categories: T status and U status.
See TVPA; Public Law No. 106-386, § 1513, 114 Stat. 1464 (Oct. 28, 2000). VAWA affords
victims a number of protections, including rigorous confidentiality requirements and measures
that prevent law enforcement reliance upon information provided by the abuser in making
adverse determinations regarding the victim's admissibility.
a. Continued Presence:
ICE is the lead DHS law enforcement agency (LEA) that investigates human trafficking crimes.
ICE places a priority on human trafficking investigations, recognizes victims of human
trafficking as crime victims, and secures access for victims to the rights and benefits afforded
them under the Trafficking Victims Protection Act (TVPA), which has since been reauthorized in
2008 by the Trafficking Victims Protection Reauthorization Act (TVPRA).
Continued Presence (CP) is a temporary immigration status provided to individuals identified by

law enforcement as victims of human trafficking. This status allows victims of human
trafficking to remain in the United States during the ongoing investigation into the human
trafficking-related crimes committed against them. CP is initially granted for one year and may
be renewed in one-year increments. CP is authorized under the provisions of section 107(c)(3) of
the TVPA, which is codified at 22 U.S.C. § 7105(c)(3) and has since been reauthorized in 2008
by the Trafficking Victims Protection Reauthorization Act (TVPRA).
CP is an important tool for federal, state, and local law enforcement in their investigation of
human trafficking-related crimes. Victims of human trafficking often play a central role in
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building a case against a trafficker. CP affords victims a legal means to temporarily live and
work in the United States, providing them a sense of stability and protection. These conditions
improve victim cooperation with law enforcement, which leads to more successful prosecutions
and the potential to identify and rescue more victims.
Victims may qualify for other forms of immigration benefits depending on their unique
circumstances. Law enforcement officials are encouraged to work with the local ICE victim
assistance coordinator to obtain referrals to non-governmental victim services providers. These
providers may offer a variety of services to assist crime victims, such as immigration legal
assistance, crisis intervention, counseling, medical care, housing, job skills training, and case
management.
Victims of trafficking are eligible to self-petition to U.S. Citizenship and Immigration Services
(USCIS) for either T or U nonimmigrant status (commonly referred to as T and U visas), which
permit them to remain in the United States for up to four years and can lead to adjustment of
status to lawful permanent residence. Additional information explaining both T and U
nonimmigrant status is provided elsewhere in this Tool Kit.
Prosecutors and LEAs conducting criminal investigations with a nexus (or potential nexus) to
human trafficking are encouraged to contact the ICE Homeland Security Investigations (HSI)
office with jurisdiction over the area. HSI has unique expertise and resources that may prove
valuable to your human trafficking investigations.
Continued Presence (CP): Frequently Asked Questions:

Who is a victim of a severe form of human trafficking?
How will I know if the alien victim/witness is a candidate for CP?
What is the process to obtain CP?
Is CP approval dependent on the case being accepted for prosecution?
Does CP require that the victim has suffered a violent form of human trafficking?
As a state or local criminal prosecutor, will I be able to request CP for the witness?
Who authorizes CP?
Is any immigration relief available for the family members of a victim granted CP?
Does CP expire?
What if a victim is involved in ongoing civil litigation because he/she was a victim?
Can CP be renewed?
What is the victim required to do to maintain CP?
What additional responsibilities does a law enforcement agency (LEA) have with respect to
victims who are granted CP?
Are there any legal bars (convictions) that might make the alien ineligible for CP?
What are other alternatives to CP?
Can the alien adjust to a lawful permanent residence with CP?
Q: Who is a victim of a severe form of human trafficking?

A: An individual who has been exploited through either: (1) Sex Trafficking —a commercial
sex act induced by force, fraud, or coercion, or in which the person induced by any means
to perform such act has not attained 18 years of age; or (2) Labor Trafficking —the
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recruitment, harboring, transportation, provision, or obtaining of a person for labor or
services, through the use of force, fraud, or coercion for the purpose of subjection to
involuntary servitude, peonage, debt bondage, or slavery.
Q: How will I know if the alien victim/witness is a candidate for CP?

A: You should determine if the alien is an individual identified as a victim of human
trafficking who is a potential witness in the investigation or prosecution of the trafficker.
A request for CP should be submitted as soon as practicable upon identification of an
alien victim of human trafficking. The request will often be initiated prior to the victim’s
cooperation with law enforcement. In some cases, the victims may be too traumatized to
cooperate at the outset of an investigation; however, this does not preclude the
submission of a CP application in credible cases.
Q: What is the process to obtain CP?

A: A federal law enforcement official, primarily ICE, the FBI and federal prosecutors from
the U.S. Attorney’s Office within the Department of Justice, are authorized to submit CP
applications to the ICE Law Enforcement Parole Unit (LEPU) stating that the witness is a
victim of a severe form of trafficking and has the potential of being a witness to such
trafficking. An application for CP should be initiated immediately upon identification of
a victim of human trafficking.
Q: Is CP approval dependent on the case being accepted for prosecution?

A: No. A victim must only be a potential witness to the human trafficking crime. CP is
available to all trafficking victims, even if a human trafficking violation is not charged or
if charges are never brought. However, once the investigation has ended and a decision
not to prosecute has been made, CP is no longer appropriate. In appropriate cases, other
forms of immigration benefits may be available to the alien.
Q: Does CP require that the victim has suffered a violent form of human trafficking?
A: No. Human traffickers may employ a range of non-violent forms of coercion to hold
victims against their will, such as threats of deportation, threats against family members,
document control, and psychological coercion.
Q: As a state or local criminal prosecutor, will I be able to directly request CP for the
witness?
A: No. State and local law enforcement officials are strongly encouraged to pursue CP for
victims of severe forms of human trafficking, but it must be done through a federal law
enforcement official and only in cases where the victim meets the federal definition of a
victim of a severe form of trafficking as defined in TVPA, and 22 U.S.C. § 7102. When
state or local law enforcement officials identify a victim of human trafficking who is a
potential witness, they should coordinate with their federal law enforcement partners to
submit an application for CP.
Q: Who authorizes CP?

A: The Law Enforcement Parole Unit (LEPU) has the sole authority to approve or deny CP
applications. The LEPU sends those results to the federal submitting official and, in an
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approved case, also to the U.S. Department of Health and Human Services (HHS) and the
Vermont Service Center (a USCIS component). Once notified, HHS issues a letter
authorizing the victim to receive federal and state benefits.
In contrast to adult victims, minor victims are not required to cooperate with law
enforcement in order to receive these benefits. Additionally, the U.S. Citizenship and
Immigration Services (USCIS) Vermont Service Center produces a Form I-94, Arrival-
Departure Record, and an Employment Authorization Document (EAD) for the federal
submitting official to provide to the victim. An EAD is issued in conjunction with all
approved CP applications, including minor victims (the EAD is often used as an identity
document).
Only the federal law enforcement official or assigned agency victim assistance coordinator
should provide the victim or his/her representative updates on the status of pending CP
applications. Due to the sensitivity and confidentiality protections afforded trafficking
victims, CP applications are subject to several levels of review within the submitting
federal agency before the LEPU receives the application.
Q: Is any immigration relief available for the family members of a victim granted CP?
A: Yes. A law enforcement agency may submit a request to the Law Enforcement Parole
Unit for Significant Public Benefit Parole (SPBP) on behalf of a victim’s family member
if the alien granted CP is under 21 and the family member is his or her spouse, child,
parent, or unmarried sibling (under 18 years of age), or if the alien granted CP is 21 or
over and the family member is his or her spouse or child, or the parent(s) or sibling(s) of
the alien granted CP if they are in present danger due to the alien’s escape from
trafficking or cooperation with law enforcement (irrespective of the age of the alien).
Q: Does CP expire?
A: Yes. CP is initially granted for one year and may be renewed in one-year increments.
The federal law enforcement agency should submit renewal requests in writing to the
Law Enforcement Parole Unit a minimum of 30 days prior to expiration of CP status.
Q: What if a victim is involved in ongoing civil litigation because he/she is a victim of

trafficking?
A: If a federal law enforcement official files a CP application with the Law Enforcement
Parole Unit stating that an alien is a victim of a severe form of trafficking and may be a
potential witness to such trafficking, and the alien has filed a civil action under 18 U.S.C.
§ 1595, the alien may be permitted to remain in the United States until the civil litigation
is concluded. See Trafficking Victims Protection Reauthorization Act of 2008, Pub. L.
110 457, Section 205(a)(1).
Q: Can CP be renewed?
A: Yes. CP is initially granted for one year and may be renewed in one-year increments.
The federal law enforcement official submits CP renewal requests and his/her agency
evaluates them on a case-by-case basis. CP renewal requests should be submitted in
writing by the federal law enforcement official to the Law Enforcement Parole Unit 30
days prior to the one year expiration.
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Q: What is the victim required to do to maintain CP?
A: Immediate cooperation with law enforcement is not initially required to apply for CP, as
victims may be too traumatized to cooperate at the onset of an investigation. A victim’s
statement alone may be sufficient to demonstrate that the alien is a victim of a severe
form of trafficking, provided that the law enforcement official finds it to be credible and
that the alien is a potential witness against their trafficker. CP may be terminated if the
victim is later determined to not to be a victim of human trafficking, is no longer a
potential witness, is not compliant with parole conditions, violates U.S. laws, loses
contact with the sponsoring law enforcement agency, or is granted a T visa.
Q: What additional responsibilities does a law enforcement agency (LEA) have with
respect to victims who are granted CP?
A: The LEA must: monitor the whereabouts of the victim while present in the U.S.; take
reasonable efforts to protect the safety of victims who are granted CP, including measures
to protect the victims and their family members from intimidation, threats of reprisals and
reprisals from traffickers and their associates; and notify the Law Enforcement Parole
Unit of the victim’s location and current circumstances on a quarterly basis. If at any
point, the LEA determines there is no longer a need for CP, or if a violation occurs, the
LEA must notify ICE immediately. The LEA is also responsible for ensuring that the CP
grantee departs the U.S. upon expiration of CP unless the grantee has been approved for
some other type of status.
Q: Are there any legal bars (convictions) that might make the alien ineligible for CP?
A: Not per se; however, law enforcement agencies are responsible for monitoring aliens and
thus must consider an alien’s criminal history and likelihood to re-offend, and whether
such information outweighs the necessity to have the alien to remain in the United States
for the investigation and prosecution of the trafficking offense.
Q: What are other alternatives to CP?

A: Law enforcement agencies may apply for deferred action (DA) on behalf of the victim.
However, this is not encouraged, as DA is an administrative convenience that delays
placing an alien into removal proceedings and it does not allow for victims to receive
benefits and services pursuant to the TVPA.
Q: Can the alien adjust to a lawful permanent residence with CP?

A: No. CP is a temporary status. However, many trafficking victims may be eligible to self-
petition for T and U visas (discussed herein), which permits them to remain in the United
States for up to four years and can lead to lawful permanent residence. Receipt of CP
does not guarantee that USCIS will favorably adjudicate other long-term immigration
status applications.
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For further information on CP, LEAs should contact the ICE LEPU by e-mail to
spbp.lepb@dhs.gov or by calling (202) 732-8164 (law enforcement only). For victim assistance
related issues, LEAs may contact ICE Headquarters Victim Assistance: (866) 872-4973 or
victimassistance.ice@dhs.gov. For human trafficking-related policy issues, please contact the
ICE Headquarters Human Smuggling and Trafficking Unit at:
ICEHumanTrafficking.helpdesk@dhs.gov
b. T Nonimmigrant Status
T nonimmigrant status (T visa) is designated for those who are or have been victims of severe
forms of human trafficking; have complied with all reasonable requests for assistance in the
investigation and prosecution of trafficking crimes; and would suffer extreme hardship involving
unusual and severe harm upon removal.
The T visa allows victims to remain in the United States to assist federal authorities in the
investigation and prosecution of human trafficking cases.
The T nonimmigrant status (T visa) classification is useful to prosecutors and differs from the S
visa in that it is considered a “victim” witness classification. On October 28, 2000, Congress
enacted the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), Pub. L.
No.106-386, 114 Stat. 1464, (2000). The TVPA and the later amendments reflect Congress’
strong stance against trafficking and its intent to vigorously pursue the prosecution of traffickers
and the protection of victims. The statutory purposes of the TVPA “are to combat trafficking in
persons, a contemporary manifestation of slavery whose victims are predominantly women and
children, to ensure just and effective punishment of traffickers, and to protect their victims.”
TVPA § 102(a).
The TVPA provides access to social services and benefits for some victims, creates stronger
criminal penalties and enhanced sentencing for traffickers, and designated a new nonimmigrant
classification for victims of severe forms of trafficking (T visa).
The T visa is a nonimmigrant classification for people who are victims of severe forms of human
trafficking as defined by statute to include commercial sexual exploitation or forced labor. See
22 U.S.C § 7101, 8 C.F.R. § 214.11(a). The victim must have either complied with any
reasonable request for assistance from law enforcement regarding the investigation and/or
prosecution, or be under the age of 18 and would suffer extreme hardship involving unusual and
severe harm upon removal. See INA § 101(a)(15)(T), 8 U.S.C. § 101(a)(15)(T).
To be considered for a T visa, the victim must file the petition for the T visa, which may include
a supplemental law enforcement agency (LEA) certification Form I-914B, Declaration of Law
Enforcement Officer for Victim of Trafficking in Persons, attesting that the petitioner: is a victim
of a severe form of trafficking; has information about the crime; and has cooperated with
reasonable requests from law enforcement for assistance in the investigation or prosecution.
Although not a requirement for the visa to be granted, the LEA certification is considered
primary evidence of cooperation with law enforcement, and it helps demonstrate the victim’s
eligibility for the visa. T visa recipients may receive employment authorization while the
application is pending.
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T visa recipients are also eligible to be certified for refugee benefits through the U.S. Department
of Health and Human Services, Office of Refugee Resettlement. These benefits are time-limited
and may include housing assistance, cash assistance, Medicaid, and other social services.
T Visa – Victims of Human Trafficking: Frequently Asked Questions:

What is human trafficking?
How will I know if the alien victim is eligible for a T visa?
What is the process to obtain a T visa?
Can the alien adjust to a lawful permanent residence with a T visa?
Does the T visa expire?
Are there any legal bars (convictions) that might make the alien ineligible for a T visa?
As a state prosecutor from a state locality, will I be able to request a T visa for the witness?
Can the trafficking victim’s family members request a T visa?
What are the alternatives to a T visa?
Q: What is human trafficking?

A: Under federal law, human trafficking or “severe forms of trafficking in persons” is
defined in two ways:
 sex trafficking, in which a commercial sex act is induced by force, fraud, or
coercion, or in which the person induced to perform such act has not attained 18
years of age; or
 the recruitment, harboring, transportation, provision, or obtaining of a person for
labor or services, through the use of force, fraud, or coercion for the purpose of
subjection to involuntary servitude, peonage, debt bondage, or slavery.
See 22 U.S.C § 7101 and 8 C.F.R. § 214.11(a).
Q: How will I know if the alien victim is eligible for a T visa?

A: You should determine if the alien:
 is or has been a victim of a severe form of trafficking in persons;
 is physically present in the United States on account of the trafficking or due to
the subsequent investigation or prosecution;
 has complied with any reasonable request for assistance in the investigation or
prosecution of acts of trafficking (unless a minor or unable to cooperate due to
trauma); and
 would suffer extreme hardship involving unusual and severe harm upon removal.
Q: What is the process to obtain a T visa?

A: A victim of a severe form of trafficking must submit a Form I-914, Application for T
Nonimmigrant Status, to U.S. Citizenship and Immigration Services (USCIS). The Form
I-914 should include a personal statement demonstrating that the alien is a victim of a
severe form of trafficking. The Form I-914 may also be accompanied by Supplement B,
Declaration of Law Enforcement Officer for Victim of Trafficking in Persons. In the
event that the alien cannot provide a declaration, secondary evidence may be submitted.
The submission of Supplement B is strongly encouraged for victims who are over the age
of 18 and have no psychological or physical trauma in order to demonstrate that the
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victim complied with reasonable requests for assistance in the investigation and/or
prosecution of the acts of trafficking. For further instructions, the alien should review
USCIS guidance on T nonimmigrant status at http://www.uscis.gov.
Q: Can the alien adjust to a lawful permanent residence with a T visa?

A: Yes. Once a T visa is granted, a victim can apply for permanent residence in the
following scenarios, whichever comes first: after three years of continuous presence in
the United States; after a continuous period during an investigation or prosecution by
submitting the appropriate form with USCIS; or after the conclusion of the criminal
proceedings. For further instructions, the alien should review USCIS guidance on T
nonimmigrant status at http://www.uscis.gov.
Q: Does the T visa expire?

A: Yes. In general, the T visa will expire four years from the date of approval. The T visa
may be extended if law enforcement officials certify that the alien’s presence is necessary
to assist in the investigation or prosecution of trafficking activity.
Q: Are there any legal bars (convictions) that might make the alien ineligible for a T
visa?
A: Currently, the DHS Secretary has not designated any specific bars. The DHS Secretary
determines whether a ground for inadmissibility exists with respect to a T nonimmigrant
visa applicant. The DHS Secretary has the discretion to waive some grounds of
inadmissibility if considered to be in the national interest to do so. See INA § 212
(d)(13).
Q: As a state prosecutor from a state locality, will I be able to request a T visa for the
witness?
A: No. The witness must self-petition for a T visa by submitting Form I-914, Application
for T Nonimmigrant Status, directly to USCIS. A law enforcement endorsement is not
required; however, it is strongly encouraged and may be provided by submitting a law
enforcement agency endorsement using Form I-914, Supplement B, Declaration of Law
Enforcement Officer for Victim of Trafficking in Persons.
Q: Can the trafficking victim’s family members request a T visa?

A: Yes. An alien who has applied or been granted a T visa may apply for admission of
certain immediate family members, known as derivatives, who are otherwise admissible,
and are accompanying or following to join the principal alien. For victims under 21 years
of age, derivatives include the spouse, children, unmarried minor siblings, and parents.
For victims over the age of 21, derivatives include the spouse and children. While only
5,000 T visas are authorized per year, this annual limitation on T visas does not apply to
T visa derivatives.
Q: What are the alternatives to a T visa?

A: Another immigration status that victims of human trafficking may be eligible for is U
nonimmigrant status (U visa). However, unlike the T visa, an individual granted a U visa
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is not eligible for refugee benefits. Additional information on the U visa is provided
herein.
Continued Presence (CP) allows a victim of trafficking to remain in the United States
while his/her trafficking case is being investigated or prosecuted. CP is a one year
temporary legal status that can only be requested by a federal law enforcement agency.
Additional information on CP is provided herein.
For more information about T visas, please visit USCIS website at http:/ www.uscis.gov. To
report an incident of trafficking, please call the Trafficking in Persons and Worker Exploitation
Task Force Complaint Line at 1-888-428-7581.
c. U Nonimmigrant Status:
The U nonimmigrant status (U visa) was created in the Victims of Trafficking and Violence
Protection Act of 2000 (TVPA). Pub. L. No.106-386, 114 Stat. 1464, (2000). This legislation
is intended to strengthen the ability of law enforcement agencies to investigate and prosecute
cases of domestic violence, sexual assault, human trafficking, and other crimes while at the same
time, offering protection to victims of such crimes.
U nonimmigrant status is set aside for victims of certain crimes who have suffered substantial
mental or physical abuse as a result of criminal activity and are willing to help law enforcement
authorities in the investigation or prosecution of the criminal activity. Congress limited the
amount of available U visas to 10,000 per fiscal year.
The U visa is a nonimmigrant classification for people who are victims of substantial mental or
physical abuse as a result of domestic violence, sexual assault, trafficking, and other certain
crimes. The Frequently Asked Questions section includes a full list of the qualifying crimes.
The U visa was created to strengthen the ability of law enforcement agencies to detect,
investigate, and prosecute cases, while at the same time offering protection to victims of serious
offenses. See TVPA § 1513(a)(2)(A). U nonimmigrant status protects victims of crimes who
have suffered substantial mental or physical abuse due to the crime and are willing to help law
enforcement authorities in the investigation or prosecution of the criminal activity. The victim
must have assisted, currently be assisting, or be likely to assist in the investigation and/or
prosecution of the criminal case. The victim files the petition for the U visa, which, unlike the T
visa, must include a law enforcement agency certification (Form I-918B, U Nonimmigrant Status
Certification). The various factors that are considered to determine if a victim witness is eligible
for U visas are discussed more thoroughly in the Frequently Asked Question section.
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Beneficiaries of U visas are required to comply with reasonable requests for assistance in the
investigation or prosecution of the criminal activity.
U Visa—Victims of Criminal Activity: Frequently Asked Questions:

Who is a candidate for a U visa?
How will I know if the alien witness is candidate for a U visa?
What is a qualifying crime or criminal activity?
What is the process to obtain a U visa?
Can the alien adjust to a lawful permanent residence with a U visa?
Does the U visa expire?
Are there any legal bars (convictions) that might make the alien ineligible for a U visa?
As a state prosecutor from a state locality, will I be able to request a U visa for the witness?
Can the family members of the victim witness request a U visa?
Q: Who is a candidate for the U visa?

A: U nonimmigrant status protects victims of crimes who have suffered substantial mental or
physical abuse as a result of a qualifying crime and are willing to help law enforcement
authorities in the investigation or prosecution of the criminal activity.
Q: How will I know if the alien witness is candidate for a U visa?

A: Determine whether your victim witness has suffered substantial mental or physical abuse
due to a qualifying crime and was, is, or will likely be willing to help law enforcement
authorities in the investigation or prosecution of the criminal activity.
Q: What is a qualifying crime or criminal activity?

A: There are several criminal activities, or similar activities, in violation of federal, state, or
local criminal laws that could trigger a victim’s eligibility for a U visa. The crimes or
criminal activity include:
 rape;
 torture;
 trafficking;
 incest;
 domestic violence;
 sexual assault;
 abusive sexual contact;
 prostitution;
 sexual exploitation;
 female genital mutilation;
 being held hostage;
 peonage;
 involuntary servitude;
 slave trade;
 kidnapping;
 abduction;
 unlawful criminal restraint;
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 false imprisonment;
 blackmail;
 extortion;
 manslaughter;
 murder;
 felonious assault;
 witness tampering;
 obstruction of justice;
 perjury; or
 attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
Criminal activity in which the nature and elements of the offense are substantially similar
to the above offenses may qualify as similar activity and therefore, may also trigger a
victim’s eligibility for a U visa.
Q: What is the process to obtain a U visa?

A: A victim of a qualifying crime must submit a Form I-918, Petition for U Nonimmigrant
Status, to U.S. Citizenship and Immigration Service (USCIS). In addition, a law
enforcement certification—confirming that the alien was, is, or will likely be helpful in
the prosecution of the qualifying crime of which they are a victim—must be submitted
within six months immediately preceding the filing of the Form I-918. For further
instructions, the alien should review USCIS guidance on U nonimmigrant status at
http://www.uscis.gov.
Q: Can the alien adjust to a lawful permanent residence with a U visa?

A: Yes. Once a U visa is granted, a victim can apply for permanent residence after three
years of continuous presence in the United States since the date of admission by
submitting the appropriate form with USCIS. For further instructions, the alien should
review USCIS guidance on U nonimmigrant status at http://www.uscis.gov.
Q: Does the U visa expire?

A: Yes. The U visa may be approved for a period not to exceed four years in the aggregate.
Extensions are available upon attestation by the certifying official that the alien’s
presence in the United States continues to be necessary to assist in the investigation or
prosecution of the qualifying criminal activity.
Q: Are there any legal bars (convictions) that might make the alien ineligible for a U
visa?
A: Yes. The DHS Secretary determines whether a ground for inadmissibility exists with
respect to a U nonimmigrant visa applicant. The DHS Secretary has the discretion to
waive some grounds of inadmissibility if considered to be in the national interest to do so,
but the DHS Secretary cannot waive the grounds of inadmissibility for alien participants
in Nazi persecution, as described in the Immigration and Nationality Act (INA) section
212 (a)(3)(E). See INA § 212 (d)(14).
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Q: As a state prosecutor from a state locality, will I be able to request a U visa for the
witness?
A: The witness must self-petition for a U visa by submitting Form I-918, Petition for U
Nonimmigrant Status, directly to USCIS. A law enforcement certification is required on
Supplement B of Form I-918 pursuant to 8 C.F.R. § 214.14(c)(2).
Q: Can the family members of the victim witness request a U visa?

A: Yes. An alien who has petitioned for or has been granted a U visa may apply for
admission of certain immediate family members who are otherwise admissible and are
accompanying or following to join the principal alien. For victims under 21 years of age,
qualifying family members include the spouse, children, unmarried minor siblings and
parents. For victims over the age of 21, qualifying family members include the spouse
and children.
For more information about U visas, please visit USCIS website at http:/
www.uscis.govwww.uscis.gov
To report an incident of trafficking, please call the Trafficking in Persons and Worker
Exploitation Task Force Complaint Line at 1-888-428-7581.
4. S Nonimmigrant Status (S Visa):
S visas are a powerful law enforcement tool because they allow investigators and prosecutors to
work closely with foreign national witnesses and informants who provide continued cooperation
in investigations and can supply valuable information on criminal organizations and terrorist
activities.
The S visa program was established to provide these witnesses (and qualified family members)
with an avenue through which they can maintain nonimmigrant status in the United States in
exchange for their cooperation in investigations and prosecutions.
All S visa applications for alien witnesses or informants, along with accompanying applications
for qualifying family members, must be sponsored and submitted by a law enforcement agency.
Individuals cannot self-petition for receipt of an S visa.
S Visa—Witnesses and Informants Who Can Supply Valuable Information: Frequently

Asked Questions
What are the types of S visas?
Does the S visa expire?
What is the process to obtain an S visa?
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Q: What are the types of S visas?
A: There are three sub-classifications of S visas:
 S-5 visa: An alien who possesses critical, reliable information concerning a
substantial criminal matter, is willing to supply such information to a federal or state
law enforcement agency, and whose presence is essential to the success of an
authorized criminal investigation or prosecution of an individual involved in the
criminal organization or enterprise is eligible for an S-5 visa. By federal statute, only
200 S-5 visas can be issued each fiscal year.
 S-6 visa: An alien who possesses critical, reliable information concerning a terrorist
organization, enterprise or operation, is willing to supply such information to a
federal law enforcement agency, has been placed in danger or is in danger as a result
of providing such information and is eligible to receive a reward under section 36(a)
of the State Department Basic Authorities Act of 1956, 22 U.S.C. §2708(a) is eligible
for an S-6 visa. Congress limited the amount of S-6 visas to 50 per year.
 S-7 visa: Accompanying qualified dependents or “derivatives” (e.g., spouses,

children, or parents) of S-5 or S-6 alien witnesses or informants are eligible for an S-7
visa.
Q: Does an S visa expire?
A: Yes. All S visas expire three years from the date of approval. There is no provision in
the law for extensions of the S Nonimmigrant Status. Sponsoring law enforcement
agencies (LEAs) are responsible for tracking expiration dates, as well as maintaining the
alien’s status throughout the process. This includes submitting quarterly and annual
reports to the Department of Justice, Office of Enforcement Operations documenting that
the alien is reporting as required, whether he/she has been compliant with the terms of the
S visa, and other events that affect the alien’s ability to cooperate with the government.
In addition, the sponsoring LEA is responsible for submitting requests for adjustments to
legal permanent resident status within the three-year period. In the event an adjustment is
not requested, the sponsoring LEA shall ensure that the alien witness or informant and
any derivatives depart the United States.
Q: What is the process to obtain an S visa?

A: The process for sponsoring an S visa application is as follows:
1) The sponsoring law enforcement agency (LEA) initiates the application and submits
it to its headquarters entity for review and signature. Before submitting the
application to Department of Justice (DOJ), Office of Enforcement Operations
(OEO), all Federal, state and local LEAs must first obtain the signature of the United
States Attorney with jurisdiction over their district to endorse the application.
Without concurrence and signature from the United States Attorney, the application
will not be reviewed and will be returned to the sponsoring state and local LEA or
prosecutor’s office.
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2) DOJ OEO reviews the application and forwards it to the DOJ Office of the Deputy
Assistant Attorney General for recommendation or denial.
3) If recommended, the application is submitted to the ICE Homeland Security
Investigations (HSI) directorate for review. Following review, the application is
submitted to HSI’s Executive Associate Director (EAD).
4) Upon HSI EAD’s recommendation, the application is provided to the U.S.
Citizenship and Immigration Services for final approval or denial.
Due to the unique nature of each application, please allow adequate time for review.
B. What options are available to a prosecutor who needs to bring an alien witness,
victim or defendant into the United States for a criminal trial who may not be
legally authorized to enter the United States?
1. Significant Public Benefit Parole:

Significant Public Benefit Parole (SPBP) may be utilized to bring an alien witness, defendant, or
cooperating source, and if necessary in extremely limited cases, the alien’s immediate family
members, into the United States for up to one year. It must be emphasized that SPBP will only
be granted for the minimum period of time required to accomplish the purpose of the request
INA § 212 (d) (5) (A), 8 U.S.C. § 1182(d)(5)(A). A parole is a temporary measure used to allow
an alien who is otherwise inadmissible to be present in the United States. Parole does not
constitute a formal admission to the United States and confers only temporary authorization to be
present in the United States without having been admitted; employment authorization may be
granted.
Significant Public Benefit Parole (SPBP): Frequently Asked Questions:

How will I know if the alien witness is a candidate for SPBP?
What is the process to obtain SPBP?
As a prosecutor from a state locality, will I be able to request SPBP for the witness?
Can the family members of the alien witness request SPBP?
Does SPBP expire?
Are there additional responsibilities relating to SPBP?
Are there any legal bars (convictions) that might make the alien ineligible for SPBP?
What are other alternatives to SPBP?
Can the alien adjust to a lawful permanent residence with SPBP?
Q: How will I know if the alien is a candidate for SPBP?

A: SPBP is a critical enforcement tool that enhances a law enforcement agency’s ability to
conduct operations and protect the American people. It is a temporary measure used to
support law enforcement efforts by providing a legal mechanism for informants,
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witnesses, and defendants who are otherwise inadmissible, to be present in the United
States in order to assist with ongoing investigations, prosecutions, or other activities
necessary to protect national security and that are beneficial to the United States.
Q: What is the process to obtain SPBP?

A. SPBP requests may be submitted by federal, state, local and tribal law enforcement
agencies (LEA). Requesting LEAs are required to adhere to existing ICE policy and
procedure in both requesting and administering SPBPs. The process is initiated by
submitting an application packet through designated ICE Special Agent in Charge Parole
Coordinators or designated federal agency headquarter programs (e.g., FBI, DEA,
USMS, ATF). The application packet consists of several forms and supporting
documents: the DHS SPBP Parole Template, Law Enforcement Agency certification,
agency memorandum and record checks for immigration and criminal history. The
sponsoring LEA is responsible for supervising and monitoring the whereabouts of the
parolee while present in the United States, and must ensure the parolee’s timely
departure. An alien may be re-paroled by the sponsoring official by submitting a new
DHS SBPB packet 30 days prior to the initial parole expiration. A re-parole may be
granted up to one year.
Q: As a prosecutor from a state locality, will I be able to request SPBP for the witness?
A: Yes. A prosecutor from a state locality may request SPBP for a witness in support of a
criminal prosecution. The state agency must agree to adhere to the ICE policy and
procedures, particularly with regard to monitoring, supervising, and ensuring the
parolee’s departure at the end of the authorized period. It is recommended that you
contact the responsible Homeland Security Investigation’s Special Agent in Charge office
to help facilitate the SPBP request.
Q: Can the family members of the alien witness request SPBP?

A: Yes. Family members of the alien witness may request SPBP upon request of the
sponsoring law enforcement agency (LEA). However, it should be noted that SPBP is
administered very sparingly in this regard and only for immediate family members (the
alien’s spouse, parents and/or unmarried children under the age of 21 at the time of the
SPBP application) who are at risk due to the principal parolee’s cooperation with an
LEA. Additionally, SPBP requests for family members require the LEA to submit a
threat assessment. Moreover, monitoring and supervision requirements similar to those
of the principal parolee apply.
Q: Does SPBP expire?

A: Yes. An alien is initially paroled into the United States for a specified time, from one day
to one year. Additional extensions may be requested to allow the alien to remain in the
United States for another specified period of time, normally lasting under one year. It is
important to note that SPBP requests are only authorized for the minimum period of time
required to accomplish the law enforcement objective. At the conclusion, the parolee is
required to depart the United States.
_________________________________________________________________________
Q: Are there additional responsibilities relating to SPBP?
A: Yes. Both the requesting law enforcement agency (LEA) and the alien must comply with
all established conditions specified in the monitoring and reporting requirements.
Additional restrictions may also be imposed, such as limited or no operation of a motor
vehicle by the alien while under authorized parole.
Q: Are there any legal bars (convictions) that might make the alien ineligible for
SPBP?
A: Yes. A person denied of crewmen status may not be paroled into the United States unless
the Attorney General determines that the alien’s parole is necessary for national security
purposes. See 8 USC § 1184(f). In addition, aliens who present a security risk or a risk
of absconding may be denied parole. See 8 C.F.R. § 212.5. Otherwise, there are no other
legal bars per se. However, the sponsoring law enforcement agency (LEA) is responsible
for closely monitoring paroled aliens and thus must consider the alien’s criminal history,
likelihood to re-offend, any possible threat to public safety and national security and
whether such information outweighs the necessity to have the alien remain in the U.S. for
the investigation and prosecution of the trafficking offense.
Q: What are other alternatives to SPBP?

A: An alien paroled into the country has no immigration status and is typically treated as any
other applicant for admission into the United States. If an alien is present in the United
States with no legal status, that individual may be considered for deferred action, when
appropriate.
Q: Can the alien adjust to a lawful permanent residence with SPBP?

A: No. Parole does not confer any legal status to an alien, and it cannot be used to
circumvent normal visa issuing and immigration procedures.
For further information on SPBP, LEAs should contact the ICE Law Enforcement Parole Unit
(LEPU) by e-mail to spbp.lepb@dhs.gov or by calling (202) 732-8164 (law enforcement only).
2. S Nonimmigrant Status (S Visa):
S visas are a powerful law enforcement tool because they allow investigators and prosecutors to
work closely with foreign national witnesses and informants who provide continued cooperation
in investigations and can supply valuable information on criminal organizations and terrorist
activities.
The S visa program was established to provide these witnesses (and qualified family members)
with an avenue through which they can maintain nonimmigrant status in the United States in
exchange for their cooperation in investigations and prosecutions.
_________________________________________________________________________
All S visa applications for alien witnesses or informants, along with accompanying applications
for qualifying family members, must be sponsored and submitted by a law enforcement agency.
Individuals cannot self-petition for receipt of an S visa.
S Visa—Witnesses and Informants Who Can Supply Valuable Information: Frequently

Asked Questions
What are the types of S visas?
Does the S visa expire?
What is the process to obtain an S visa?
Q: What are the types of S visas?

A: There are three sub-classifications of S visas:
 S-5 visa: An alien who possesses critical, reliable information concerning a
substantial criminal matter, is willing to supply such information to a federal or state
law enforcement agency, and whose presence is essential to the success of an
authorized criminal investigation or prosecution of an individual involved in the
criminal organization or enterprise is eligible for an S-5 visa. By federal statute, only
200 S-5 visas can be issued each fiscal year.
 S-6 visa: An alien who possesses critical, reliable information concerning a terrorist
organization, enterprise or operation, is willing to supply such information to a
federal law enforcement agency, has been placed in danger or is in danger as a result
of providing such information and is eligible to receive a reward under section 36(a)
of the State Department Basic Authorities Act of 1956, 22 U.S.C. §2708(a) is eligible
for an S-6 visa. Congress limited the amount of S-6 visas to 50 per year.
 S-7 visa: Accompanying qualified dependents or “derivatives” (e.g., spouses,

children, or parents) of S-5 or S-6 alien witnesses or informants are eligible for an S-7
visa.
Q: Does an S visa expire?
A: Yes. All S visas expire three years from the date of approval. There is no provision in
the law for extensions of the S Nonimmigrant Status. Sponsoring law enforcement
agencies (LEAs) are responsible for tracking expiration dates, as well as maintaining the
alien’s status throughout the process. This includes submitting quarterly and annual
reports to the Department of Justice, Office of Enforcement Operations documenting that
the alien is reporting as required, whether he/she has been compliant with the terms of the
S visa, and other events that affect the alien’s ability to cooperate with the government.
In addition, the sponsoring LEA is responsible for submitting requests for adjustments to
legal permanent resident status within the three-year period. In the event an adjustment is
not requested, the sponsoring LEA shall ensure that the alien witness or informant and
any derivatives depart the United States.
Q: What is the process to obtain an S visa?

A: The process for sponsoring an S visa application is as follows:
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1) The sponsoring law enforcement agency (LEA) initiates the application and submits
it to its headquarters entity for review and signature. Before submitting the
application to Department of Justice (DOJ), Office of Enforcement Operations
(OEO), all Federal, state and local LEAs must first obtain the signature of the United
States Attorney with jurisdiction over their district to endorse the application.
Without concurrence and signature from the United States Attorney, the application
will not be reviewed and will be returned to the sponsoring state and local LEA or
prosecutor’s office.
2) DOJ OEO reviews the application and forwards it to the DOJ Office of the Deputy
Assistant Attorney General for recommendation or denial.
3) If recommended, the application is submitted to the ICE Homeland Security
Investigations (HSI) directorate for review. Following review, the application is
submitted to HSI’s Executive Associate Director (EAD).
4) Upon HSI EAD’s recommendation, the application is provided to the U.S.
Citizenship and Immigration Services for final approval or denial.
Due to the unique nature of each application, please allow adequate time for review.
C. What are some general immigration consequences of a criminal conviction?
1. Overview of immigration consequences of criminal charge:

A criminal defendant who is an alien or a non-citizen of the United States may become subject to
removal because of a conviction. In order for an alien to be removed from the United States, the
alien must be found removable under the Immigration and Nationality Act (INA). The INA sets
out specific grounds of removability at sections 212 and 237, 8 U.S.C. §§ 1182, 1227. These
provisions provide that aliens who commit a variety of crimes, including crimes defined at INA §
101(a)(43), 8 U.S.C. § 1101(a)(43), are removable.
A federal or state conviction may subject an alien to removal proceedings on the ground that he
or she is generally no longer permitted: (a) to remain in the United States; (b) to be admitted into
the United States, if he/she travels abroad; or (c) both. Removal proceedings are civil and
adversarial in nature. While some proceedings may be expedited in nature, the majority of aliens
go through formal proceedings conducted by an Immigration Judge, where the DHS must prove
removal charges against the alien. The alien has the right to contest the removal charges and, if
eligible, to seek relief from removal. DHS typically relies on readily available conviction
records, including written plea agreements, to determine whether an alien is removable from the
United States and to prove removal charges based on criminal convictions.
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2. Ineffective Assistance of Counsel
Convictions based on guilty pleas may be subject to challenge under the Supreme Court’s
decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), if the alien was not properly apprised of
the immigration consequences of his/her plea agreement. In order to prevent such a challenge,
DHS recommends that all plea agreements include language warning individuals that if they are
an alien, their guilty plea may subject them to removal from the United States.
General Immigration Consequences of a Criminal Conviction: Frequently Asked

Questions:
Where can I find comprehensive information about the process for the removal of aliens from the
United States?
Does an alien’s immigration status at the time of a conviction impact the process for removal?
How can I find out if an alien’s conviction will result in the alien’s removal?
What documents does DHS and DOJ use in determining whether an alien is removable?
Can an alien request that his conviction be vacated as a result of the immigration consequences
of his/her criminal offense?
Are there immigration consequences to a conviction other than just removal of an alien?
Q: Where can I find comprehensive information about the process for the removal of
aliens from the United States?
A: A helpful and comprehensive guide about the removal process can be found by
viewing the following U.S. Department of Justice Office of Immigration Litigation (OIL)
monograph at http://www.justice.gov/civil/oil/Padilla_Monograph.htm. Section 1 of the
monograph provides information on the various legal methods that the U.S. government
might use to secure a removal order against an alien. The monograph provides a
comprehensive discussion of Padilla, which may generally be useful to prosecutors,
particularly in determining whether a prior conviction may be subject to vacatur under
Padilla. Additionally, you may wish to contact a local ICE Office of Chief Counsel for
advice about a specific case in which an alien is challenging a criminal conviction based
on the alleged ineffective assistance of counsel.
Q: Does an alien’s immigration status at the time of a conviction impact the process for
removal?
A: Yes. Whether an alien is subject to removal proceedings before an Immigration Judge
under INA § 240, 8 U.S.C. § 1229a, rather than an alternative administrative or expedited
removal process (e.g., under INA § 238, 8 U.S.C. § 1228), may depend on the alien’s
immigration status or lack thereof. Similarly, aliens who lack a lawful immigration status
may potentially be subject to removal proceedings regardless of any convictions or
vacaturs thereof. Please consult the monograph for more detailed information.
Q: How can I find out if an alien’s conviction will result in the alien’s removal?
A: Whether an alien is subject to removal as a result of a criminal conviction depends on a
variety of factors, including: (1) the nature of the crime, (2) the alien’s prior criminal
history (see, e.g., INA § 237(a)(2)(A)(ii), 8 U.S.C. §1227(a)(2)(A)(ii), which provides for
removability of certain aliens convicted of multiple offenses), (3) the jurisdiction in
which removal proceedings will take place and (4) the information available to DHS and
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DOJ about the criminal conviction(s). The monograph provides a comprehensive list of
crimes that may result in an alien’s removal. Highlights of crimes that generally make an
alien removable include the following:
 Controlled substance offenses.
 Crimes determined to involve “moral turpitude.” “Moral turpitude” is not defined in
the INA, but has been found to include crimes that involve fraud or that involve
conduct that is inherently dishonest, base, vile, or depraved.
 Firearm and destructive device convictions.
 Crimes of domestic violence in certain cases, stalking, child abuse, child
abandonment or neglect, as well as certain violations of a protective order.
 Failure to register as a sex offender.
 Aggravated felonies listed in INA §101(a)(43). This list includes offenses such as
murder, rape, sexual abuse of a minor; money laundering; certain theft offenses
(depending on term of imprisonment); certain crimes of violence (depending on term
of imprisonment); trafficking in controlled substances such as possession with intent,
importation and/or distribution; fraud in which the loss to the victim is at least
$10,000; and failure to appear in court to answer to a charge of a felony. Attempts or
conspiracies to commit aggravated felonies are themselves aggravated felonies.
The INA makes aliens removable for crimes that they are convicted of and, in some
cases, crimes that they commit irrespective of a conviction. However, the INA does not
contain a clear, easily accessible list of offenses, in part because it is designed to capture
offenses that vary from state to state. This information has been collected in Part A of
Section II of the aforementioned monograph:
http://www.justice.gov/civil/oil/Padilla_Monograph.htm. Please note that whether a
particular state offense meets the definition of one or more specified criminal grounds of
removal is a question generally answered by the Board of Immigration Appeals as well as
the federal circuit courts.
Please note that simply because a conviction makes an alien removable, it does not mean
the alien will be actually removed from the United States. In some cases, an alien may be
subject to removal based upon a criminal conviction, but be eligible for relief from
removal. If you have a specific question about a particular crime or offense, you may
wish to contact the nearest ICE Office of Chief Counsel to discuss it.
Q: What documents does DHS and DOJ use in determining whether an alien is
removable?
A: If an alien has been admitted to the United States, then DHS has the burden of proving
that he/she was convicted of a crime that renders him/her removable. The Immigration
and Nationality Act (INA) and its implementing regulations permit DHS to rely on
certain court documents, including indictments, plea agreements and judgments of
conviction, in order to meet this burden. In some cases, establishing that an alien is
subject to removal is difficult because the limited documents that may be used do not
clearly identify all of the elements of the crime that make an alien removable. For
example, the INA makes aliens removable for crimes of domestic violence, but the
relevant documents for a guilty plea to simple assault, for example, may not always
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identify the victim as the spouse. Inclusion of information such as the victim-perpetrator
relationship may need to be present in the record of conviction to render an alien
removable. Please see Appendix D of the aforementioned monograph for a discussion on
determining what information is necessary for a state offense to “match” a federal
immigration offense, thereby rendering an alien removable. See
http://www.justice.gov/civil/oil/Padilla_Monograph.htm.
Q: Are there immigration consequences to a conviction other than just removal of an

alien?
A: Yes. Convictions that do not render an alien removable may still have other
consequences for the alien convicted. Some aliens are removable irrespective of a
criminal conviction, such as those who are present without inspection. For such aliens, a
criminal conviction may nonetheless significantly impact their ability to remain in the
United States. For example, aliens who are convicted of aggravated felonies are
ineligible for most forms of relief from removal, including asylum, adjustment of status,
and cancellation of removal. Even if a conviction does not make an alien ineligible for
relief as a matter of law, criminal activity presents a significant adverse discretionary
factor. See, e.g., 8 C.F.R. § 1212.7(d); Matter of Jean, 23 I. & N. Dec. 373, 383-84 (A.G.
2002). Similarly, aliens with Temporary Protected Status under INA § 244, 8 U.S.C. §
1254a—individuals who are permitted to reside in the United States while their country
experiences temporary conditions making their return difficult—may lose such status
upon conviction of a felony, regardless of whether the felony is an independent ground of
removal. These examples are representative of potential immigration consequences,
other than removability, that may result from criminal activity and/or convictions. The
scope and intent of this overview does not allow a comprehensive review of all the
consequences. The full range of potential immigration consequences would be
impossible to list comprehensively.
D. What are the options available to obtain a removal order without a formal
immigration hearing?
As previously noted, the majority of aliens go through formal proceedings conducted by an
Immigration Judge, where the DHS must prove removal charges against the alien. While some
aliens (by nature of their classification) are not entitled to this hearing (e.g., previously removed
aliens who are unlawfully re-enter in the United States, alien stowaways, alien crew members,
visa waiver entrants, etc.), aliens who are amenable to removal proceedings pursuant to the
Immigration and Nationality Act (INA) § 240, 8 U.S.C. § 1229a, are able to obtain a removal
order without a formal immigration hearing. Specifically, aliens can elect to avoid formal
immigration hearings by entry of removal orders upon stipulation as authorized under INA §
240(d). These stipulated orders allow interested aliens, such as a criminal foreign national, who
are removable from the United States and are ineligible for or do not wish to pursue relief from
removal, to have their cases adjudicated expeditiously and without an in-person formal
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immigration hearing. For such aliens, a stipulated removal order helps ensure swift justice,
reduces their time in detention and expedites their return to their homeland. Furthermore,
stipulated removal orders are a good avenue for judicial economy in that they create operational
efficiencies for both the immigration and criminal courts. A prosecutor interested in presenting a
request for a stipulated removal order to an alien defendant should consult with his/her local ICE
Office of Chief Counsel.
1. Stipulated Order of Removal by an Immigration Judge:

Procedurally, to obtain a stipulated order of removal by an Immigration Judge (IJ), an alien or
his/her representative and ICE make a joint motion to the IJ requesting that an order of removal
be entered against the alien without a hearing and in the absence of the parties. Pursuant to the
joint request, the IJ may enter a removal order based solely on a review of the charging
document, the written stipulation, and supporting documentation, if any. If the alien is without
representation, the IJ must determine that the alien’s request for a waiver of a formal hearing is
voluntary, knowing, and intelligent. A stipulated removal order shall constitute a conclusive
determination of the alien’s removability from the United States. See 8 C.F.R. § 1003.25(b).
Immigration Court Stipulated Order of Removal: Frequently Asked Questions:

How will I know if an alien defendant is a candidate for a stipulated removal order?
What is the process to obtain a stipulated removal order?
How long does it take to obtain a stipulated removal order?
Can an alien appeal the stipulated removal order of an Immigration Judge?
Does an alien need to be in ICE detention in order to request and receive a stipulated removal
order from an Immigration Judge?
Are there any legal bars that might make the alien ineligible for a stipulated removal order?
Q: How will I know if an alien defendant is a candidate for a stipulated removal order?
A: Most aliens who are amenable to removal proceedings pursuant to INA § 240, 8 U.S.C. §
1229a, are eligible for stipulated removal. However, some aliens (by nature of their
classification) are not entitled to a hearing. For example, previously removed aliens (that
have re-entered illegally), alien stowaways, alien crew members, visa waiver entrants,
etc., are not eligible to an automatic hearing in front of an Immigration Judge. Therefore,
for such class of aliens, stipulated orders of removal are not appropriate. For aliens in
immigration proceedings with legal representation, the alien’s attorney and an ICE
counsel from the local Office of Chief Counsel should communicate to ensure and
determine whether stipulated removal order is the appropriate vehicle to remove the
alien.
Q: What is the process to obtain a stipulated removal order?

A: If stipulated removal is deemed an appropriate avenue and the alien requests it (“Motion
for Stipulated Removal Order”), an ICE officer will prepare and duly serve a document
containing a joint stipulated request for an order of removal and waiver of a hearing
along with a charging document, Form I-862, A Notice to Appear. The stipulation, along
with the waiver documents, will need to be signed by the alien and his/her representative
(if the alien is represented). (Note: Form EOIR-28, A Notice of Entry of Appearance as
Attorney or Representative Before the Immigration Court, must be filed by the attorney
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or representative.) The Office of Chief Counsel will then review the waiver documents
for completeness and concurrence. Once properly completed and executed, the waiver
documents are then forwarded to an Immigration Judge (IJ). The IJ, on completion of an
independent review, will adjudicate and either grant or deny the Motion for Stipulated
Removal Order. The IJ may adjudicate the motion in the parties’ absence. See 8 C.F.R.
§ 1003.25(b).
Q: How long does it take to obtain a stipulated removal order?

A: The time that it takes from signing the paperwork to the Immigration Judge’s
determination on the Motion for Stipulated Removal varies depending on ICE and court
schedules. In most locations, the stipulated order is approved within a few business days.
Q: Can an alien appeal the stipulated removal order of an Immigration Judge?

A: No. However, the alien can file a motion to reopen removal proceedings in an attempt to
vacate the removal order.
Q: Does an alien need to be in ICE detention in order to request and receive a

stipulated removal order from an Immigration Judge?
A: No. An alien does not need to be in ICE detention to file such a request. The alien can
also request a stipulated removal order while in a federal, state, or local prison.
Q: Are there any legal bars that might make the alien ineligible for a stipulated
removal order?
A: Not all aliens are amenable to removal under INA § 240 and may therefore be ineligible
for stipulated removal. Some aliens (by nature of their classification) are not entitled to a
hearing (e.g., previously removed aliens who have illegally re-entered the United States,
alien stowaways, alien crew members, visa waiver entrants, etc). Therefore, such classes
of aliens are statutorily barred, and thus a stipulated order of removal is not appropriate.
2. Stipulated Judicial Order of Removal (Federal Court):

Aliens who are deportable under the Immigration and Nationality Act (INA) and are defendants
in federal criminal cases may be eligible for judicial removal. Unlike stipulated removal orders
issued by an Immigration Judge (IJ), a stipulated judicial order of removal allows a U.S. District
Court to grant such an order (at the time of sentencing) against a deportable alien. The U.S.
District Court order may be granted pursuant to a request of a federal prosecutor, such as an
Assistant United States Attorney (AUSA), along with the concurrence of the ICE Director. See
INA § 238(c). Therefore, an AUSA may wish to present a plea agreement to an alien defendant
and his/her legal representative that includes the alien’s request for a stipulated judicial order of
removal, as outlined in INA § 238(c)(5), in return for a reduced sentencing recommendation
when appropriate and permitted under law. Prior to completing a plea agreement packet that
_________________________________________________________________________
includes a stipulated judicial order of removal, an AUSA should obtain ICE’s recommendation,
as well as charging documents, conviction, and immigration records from the local ICE office.
Stipulated Judicial Order of Removal: Frequently Asked Questions:

How will I know if an alien defendant is a candidate for a stipulated judicial order of removal?
What is the process to obtain a stipulated judicial order of removal?
When can the alien defendant obtain a stipulated judicial order of removal?
Can an alien appeal the stipulated judicial order of removal?
If the United States District Court judge or magistrate refuses to accept the plea agreement or
issue the stipulated judicial order of removal, can an alien defendant still be removed?
Does an alien need to be in the custody of a law enforcement agency to receive a stipulated
judicial order of removal?
Are there any legal bars that might make the alien ineligible for a stipulated judicial order of
removal?
Q: How will I know if an alien defendant is a candidate for a stipulated judicial order
of removal?
A: Aliens who are removable under the INA and are defendants in federal criminal cases
may be eligible for judicial removal. See INA § 238(c). However, it is important to note
that judicial removal may not be the most appropriate removal proceeding for all federal
alien defendants. Federal prosecutors who are interested in pursuing a removal order
against an alien defendant should contact their local Office of Chief Counsel to determine
if a judicial removal order is the appropriate avenue to effectuate the defendant’s removal
from the United States.
Q: What is the process to obtain a stipulated judicial order of removal?

A: Federal prosecutors are authorized to enter into plea agreements with federal defendants.
See Fed. R. Crim. P. 12. Additionally, INA § 238(c)(5) sets forth the process regarding
stipulated judicial orders of removal, whereby an alien can enter into a plea agreement
subject to DHS concurrence. Under such plea agreements, the alien stipulates to being
removed from the United States as part of his/her criminal sentence. The statute further
sets forth that as part of the plea agreement, the alien waives a formal immigration
hearing and waives the right to appeal from the order of removal. Please note, both a
U.S. District Court judge (in felony and misdemeanor cases) and a U.S. magistrate judge
(in misdemeanor cases only) may accept such stipulation and enter a judicial order of
removal. A federal prosecutor who desires to seek such an order should contact the local
Office of Chief Counsel in order to determine if the alien defendant is removable and
whether a judicial order of removal is the most appropriate removal proceeding.
Q: When can the alien defendant obtain a stipulated judicial order of removal?
A: Generally, a U.S. District Court judge or a U.S. magistrate judge will enter the judicial
removal order at the time of sentencing.
Q: Can an alien appeal the stipulated judicial order of removal?

A: No. INA § 238 (c)(5) requires that the alien explicitly waive the right to appeal from
such orders.
_________________________________________________________________________
Q: If the U. S. District Court judge or magistrate refuses to accept the plea agreement
or issue the stipulated judicial order of removal, can an alien defendant still be
removed?
A: Yes. The denial of a judicial removal order does not preclude ICE from initiating
removal proceedings against an alien under INA § 240, 8 U.S.C. § 1229a, based on any
charge of removability.
Q: Does an alien need to be in the custody of a law enforcement agency in order to

receive a stipulated judicial order of removal?
A: No. However, if it is believed that a stipulated judicial removal order will be entered at
the time of sentencing, ICE should be notified to ensure required steps are taken to
coordinate removal efforts where appropriate.
Q: Are there any legal bars that might make the alien ineligible for a stipulated judicial
order of removal?
A: Not all aliens are removable under the INA; therefore, the alien may be ineligible for a
stipulated judicial removal order. Also, pursuant to the Immigration and Nationality Act,
there are various classes of aliens who may be removed from the United States without a
hearing (e.g., previously removed aliens who are currently unlawfully present in the
United States, alien stowaways, alien crew members, visa waiver entrants). For these
aliens, a judicial order of removal is unnecessary. Therefore, a federal prosecutor
interested in seeking a judicial removal order should consult with his/her local ICE Office
of Chief Counsel to determine the appropriate removal process.
_________________________________________________________________________

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APPENDIX C

Aggravated Felony Practice Aids

(5/03) Copyright © 2003 New York State Defenders Association C-1

(I) Certain offenses relating to child pornography

C-2 Copyright © 2003 New York State Defenders Association (5/03)

Attempt [U] to commit any aggravated felony

Bribery [S, R] if deemed an offense relating to “bribery of a witness” or “commercial bribery,”

(5/03) Copyright © 2003 New York State Defenders Association C-3

Child pornography offense [I] described in 18 U.S.C. 2251, 2251A, or 2252

Commercial bribery offense [R] IF THE DEFENDANT IS SENTENCED TO A TERM OF

Conspiracy [U] to commit any aggravated felony

DEFINITION: “Controlled substance” is defined in the federal Controlled Substances

C-4 Copyright © 2003 New York State Defenders Association (5/03)

• NY Criminal Possession of a Controlled Substance and Criminal Possession of

(5/03) Copyright © 2003 New York State Defenders Association C-5

Crime of violence [F] as defined in 18 U.S.C. 16 IF THE DEFENDANT IS SENTENCED TO A

DEFINITION: “Crime of violence” is defined in 18 U.S.C. 16 to include “(a) an offense

Criminal facilitation, see entry for “Criminal Facilitation” in Appendix E

Criminal mischief [F], see entry below for “Mischief, criminal”

Criminal solicitation, see entry for “Criminal Solicitation” in Appendix E

C-6 Copyright © 2003 New York State Defenders Association (5/03)

Criminal trespass [F], see entry below for “Trespass”

Facilitation, see entry for “Criminal Facilitation” in Appendix E

False imprisonment [F], see entry below for “Unlawful imprisonment”

DEFINITION: “Firearm” is defined in 18 U.S.C. 921(a)(3) to include “(A) any weapon

(5/03) Copyright © 2003 New York State Defenders Association C-7

C-8 Copyright © 2003 New York State Defenders Association (5/03)

Grand larceny [G] IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT

(5/03) Copyright © 2003 New York State Defenders Association C-9

Obstruction of justice offense [S] IF THE DEFENDANT IS SENTENCED TO A TERM OF

Petit larceny [G] IF THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT OF

Ransom offense [H] described in 18 U.S.C. 875, 876, 877, or 1202

C-10 Copyright © 2003 New York State Defenders Association (5/03)

Solicitation, see entry for “Criminal Solicitation” in Appendix E

(5/03) Copyright © 2003 New York State Defenders Association C-11

C-12 Copyright © 2003 New York State Defenders Association (5/03)

(5/03) Copyright © 2003 New York State Defenders Association C-13

C-14 Copyright © 2003 New York State Defenders Association (5/03)

(5/03) Copyright © 2003 New York State Defenders Association C-15

C-16 Copyright © 2003 New York State Defenders Association (5/03)

(5/03) Copyright © 2003 New York State Defenders Association C-17

C-18 Copyright © 2003 New York State Defenders Association (5/03)

(5/03) Copyright © 2003 New York State Defenders Association C-19

C-20 Copyright © 2003 New York State Defenders Association (5/03)

Controlled Matter of N.Y. Penal NOT AF under category B*

Controlled Matter of Tex. Penal NOT AF under category B*

(5/03) Copyright © 2003 New York State Defenders Association C-21

Controlled U.S. v. Cuevas, R.I. law AF—category B*

Controlled U.S. v. Forbes, N.Y. Penal AF—category B*

C-22 Copyright © 2003 New York State Defenders Association (5/03)

Controlled U.S. v. New Hamp- AF—category B

(5/03) Copyright © 2003 New York State Defenders Association C-23

Controlled Gerbier v. 16 Del. Code MAYBE AF under category B*

C-24 Copyright © 2003 New York State Defenders Association (5/03)

(5/03) Copyright © 2003 New York State Defenders Association C-25

The instant offense is a “drug trafficking crime” because it

C-26 Copyright © 2003 New York State Defenders Association (5/03)

A drug offense will fall within the “drug trafficking crime”

(5/03) Copyright © 2003 New York State Defenders Association C-27

Here, the state possession offense was held to be a “drug

C-28 Copyright © 2003 New York State Defenders Association (5/03)

(5/03) Copyright © 2003 New York State Defenders Association C-29

Note: may, however, be deemed NOT an AF if removal pro-