A view through the looking glass: how crimes appear from the immigration court perspective.

• Author: Marks, Dana Leigh
• Position: Padilla and the Future of the Defense Function

Introduction I. Common Misconceptions II. Some Immigration Law Basics III. The Government Players IV. Those Subject to the Immigration Laws V. Removability and Inadmissibility VI. Silva-Trevino and Crimes of Moral Turpitude VII. What Is A Conviction? VIII. Good Moral Character IX. Common Forms of Immigration Relief Available in Removal Proceedings X. Padilla v. Kentucky Conclusion INTRODUCTION

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

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

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

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

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

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

1. COMMON MISCONCEPTIONS

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

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

2. SOME IMMIGRATION LAW BASICS

   Terminology in this field is problematic even within the immigration law itself. The current law was amended in 1996, replacing deportation and exclusion proceedings with removal proceedings. (18) The proper technical term for an order expelling someone from the United States is now "removal," however colloquially many people still refer to having been ordered "deported." Thousands of outstanding deportation orders still exist (19) and can be either enforced or reinstated in a variety of factual contexts. (20) The term "deportation," however, is still frequently used in colloquial speech to describe both deportation and removal proceedings, despite significant legal differences between the two. (21)

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

3. THE GOVERNMENT PLAYERS

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

4. THOSE SUBJECT TO THE IMMIGRATION LAWS

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

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

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

   Noncitizens fall into various categories under the Act: lawful permanent residents (immigrants); (31)...