Updated December 2014: Immigration Consequences of Convictions Checklist
This two-page checklist summarizes the criminal offenses that might have immigration consequences for immigrant defendants, with a new summary of criminal bars relating to DACA and DAPA temporary administrative status programs as announced by DHS on November 20, 2014.
Quick Reference Charts for Immigration Consequences of Criminal Offenses
These charts list common criminal offenses, and whether they might trigger an immigration ground of removability (and thereby subject an immigrant to deportation):
Aggravated Felony Case Law Determinations
This chart contains sample aggravated felony case law determinations to help you determine whether a specific criminal offense (felony or misdemeanor) may be deemed an “aggravated felony” for immigration law purposes.
“Particularly Serious Crimes” Bars on Asylum and Withholding of Removal:
This chart assists practitioners in determining whether an offense may be deemed a particularly serious crime, and thereby bar certain persecution-based relief from removal. It also includes a table of case law determinations.
Removal Defense Checklist
This checklist offers a listing and brief synopsis of legal arguments and strategies that a lawyer or immigrant may raise in immigration removal proceedings after a criminal conviction or charge.
DACA Practice Advisory with Notes for NY Criminal Bars
IDP has produced a practice advisory regarding the criminal bars to
obtaining protection under Deferred Action for Childhood Arrivals (DACA), including specific notes on NY crimes and dispositions. This practice advisory was originally created by the Immigrant Legal Resource Center which granted IDP permission to generate this version.
NYC Detainer Policy Effective July 2013 (Local Laws 2013/021 and 2013/022)
IDP has issued a practice advisory for criminal defense attorneys regarding New York City’s 2013 detainer laws (Local Laws 2013/021 and 2013/022). This advisory provides guidance as to which immigration detainers the New York Police Department and the NYC Department of Corrections will not honor, thereby preventing certain non-citizens from being transferred to immigration detention. IDP also includes bail payment and plea decision tips for criminal defense attorneys within this advisory.
Criminal-Immigration Practice Tips:
IDP and our partners issue these practice tips to update criminal defense attorneys, immigrant advocates, and immigrants themselves on legal developments affecting immigrants accused or convicted of crimes.
- Practice Advisory: Matter of Chairez-Castrejon: BIA Applies Moncrieffe and Descamps to Modify and Clarify Its Views on Proper Application of the Categorical Approach (July 31, 2014): IDP and the National Immigration Project have issued an advisory on the Board of Immigration Appeals July 24th decision in Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014). In this decision, the Board applied last year’s Supreme Court’s decisions in Moncrieffe v. Holder and Descamps v. United States to modify and/or clarify the Board’s views on proper application of the categorical approach for determining whether a conviction fits within a criminal removal ground. The advisory describes the developments in the Board’s views relating to (1) minimum conduct test; (2) divisibility; (3) realistic probability standard; and (4) relief eligibility burden of proof. The advisory is meant to supplement and update the discussion of these concepts in last year’s advisories on the Moncrieffe and Descamps decisions.
Practice Advisory: United States v. Castleman: Supreme Court Opens Door to Domestic Violence/Aggravated Felony Removal Challenges (April 7, 2014): IDP and the National Immigration project of the National Lawyers Guild have written a practice advisory on the Supreme Court’s recent decision in United States v. Castleman that broadens the reach of a federal law banning people from possessing firearms and ammunition when they have a prior misdemeanor conviction for domestic violence. The advisory (1) explains the Court’s holding as to federal criminal law; (2) explains why this decision should have no negative impact on immigration law; and (3) sets out several ways it may support arguments to narrow the “domestic violence” and “aggravated felony” grounds of deportation and bars to relief.
- Practice Advisory: Matter of Abdelghany: Implications for LPRs seeking § 212(c) relief (March 14, 2014): IDP and the National Immigration Project of the National Lawyers Guild have issued a practice advisory on Matter of Abdelghany (with Sample Motion to Reconsider with the BIA), in which the Board of Immigration Appeals withdrew from its previous rules barring § 212(c) relief for lawful residents who had been convicted of deportable offenses at trial and those whose convictions made them deportable on a ground that had no “comparable ground” of excludability. This advisory covers (1) the BIA’s holding in Abdelghany; (2) its impact on various categories of LPRs seeking § 212(c) relief; and (3) steps that immigrants and their advocates should take immediately to benefit from the decision (including in removal proceedings that have already concluded).
- Practice Advisory: Seeking Post-Conviction Relief Under Padilla v. Kentucky After Chaidez v. U.S. (February 28, 2013) — The Defending Immigrants Partnership has published a Chaidez advisory detailing the claims for post-conviction relief that can still be asserted by immigrants who were not properly advised regarding the immigration consequences of a pre-Padilla criminal case. Chaidez is not the end of the story for these cases, and there are ways to fight dismissal of Padilla claims for convictions that were final on March 31, 2010. Stay tuned for model briefing and practice tips on NY-specific strategies to defeat dismissal post-Chaidez.
- Practice Advisory: Descamps v. United States and the Modified Categorical Approach (July 17, 2013) — IDP and the National Immigration Project of the National Lawyers Guild have issued a practice advisory on Descamps v. United States, in which the Supreme Court clarified the proper use of the “modified categorical approach” to analyze the immigration and federal sentencing consequences of prior convictions. The Court squarely rejected a rule adopted by some lower courts (as well as the BIA) that allowed judges to look behind an earlier criminal conviction and impose federal collateral consequences based on “facts” from the underlying court records that the defendant was not necessarily convicted of. Together with the Court’s recent decision in Moncrieffe v. Holder, the Descamps decision should allow resort to underlying records in a much smaller number of cases, thus giving immigrant defendants the benefit of their plea bargains. Our practice advisory covers: (1) the holding in Descamps; (2) the decision’s applicability to immigration law; and (3) the decision’s potential implications for specific removal grounds.
- Practice Advisory: Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach (May 2, 2013) — IDP, the American Immigration Council, and the National Immigration Project issued a practice advisory on the implications for drug charges and other issues involving the categorical approach of the Supreme Court’s long-awaited decision in Moncrieffe v. Holder. The Supreme Court held that an offense that punishes the transfer of small amounts of marijuana for no remuneration cannot be deemed a “drug trafficking crime” aggravated felony under the categorical approach. The Court’s 7-2 decision is also likely to have a beneficial impact on some other key issues regarding the proper way to assess the immigration consequences of convictions. Our practice advisory covers: (1) the holding in Moncrieffe; (2) the decision’s potential broader implications; (3) strategies for noncitizen criminal defendants; and (4) steps that lawyers (or immigrants themselves) should take immediately in pending or already concluded removal proceedings affected by Moncrieffe.
- Practice Advisory: Criminal Bars to Relief and Burden of Proof Considerations: Model Briefing for Defending Eligibility for LPR Cancellation of Removal Where the Record of Conviction Is Inconclusive (May 4, 2012) — This updated advisory includes model briefing for immigrants and their lawyers fighting criminal bars on eligibility for relief from removal. In an application for relief from removal, the noncitizen has the burden to prove that he or she is eligible for relief. If the noncitizen has a criminal conviction in his or her past, this may include establishing that the conviction does not fall within a criminal bar to relief eligibility, e.g., aggravated felony bar to cancellation of removal. This advisory and the accompanying model briefing provides arguments to persuade adjudicators that an immigrant meets this burden when the criminal record evidence does not conclusively establish that the conviction falls within the relevant criminal ground bar. Although this advisory focuses on the aggravated felony bar to cancellation of removal for lawful permanent residents, portions of the advisory may also be helpful in analyzing other criminal bars faced by noncitizens applying for other forms of relief from removal. This advisory was prepared by the Stanford Law School Immigrant Rights Clinic in collaboration with the IDP.
- Practice Advisory: Vartelas v. Holder: Implications for LPRs Who Take Brief Trips Abroad and Other Potential Favorable Impacts (April 5, 2012). This advisory, prepared by IDP along with the National Immigration Project, American Immigration Council and NYU Clinical Law Professor Nancy Morawetz, analyzes the Supreme Court’s March 28, 2012 decision in Vartelas v. Holder, No 10-1211. In Vartelas, the Court struck down the government’s retroactive application of a 1996 immigration law amendment that the government said allowed denial of re-admission and removal of lawful permanent residents who take short trips abroad even if their old convictions preceded the new law. Such retroactive application of the 1996 amendment subjected immigrants with relatively minor offenses—many of whom were not deportable while inside the U.S.—to detention and removal simply because they needed to travel to attend a funeral, visit a sick family member, or otherwise attend to family or other emergent business abroad. The Court’s decision protects the rights of immigrants with long ago criminal convictions to travel abroad without risking detention and removal upon their return. The Court’s ruling in this case may also favorably affect the ability of immigrants to challenge retroactive application of other harsh immigration law amendments. This advisory, issued on April 5, 2012, describes (1) the Court’s decision; (2) its potential impact on lawful permanent resident immigrants who take brief trips abroad; (3) suggested steps that lawyers (or immigrants themselves) may take immediately in pending or already concluded removal proceedings involving such individuals; and (4) some of the other potential favorable impacts of the decision.
- Practice Advisory: Implications of Judulang v. Holder for LPRs Seeking 212(c) Relief and for Other Individuals Challenging Arbitrary Agency Policies (Dec. 16, 2011) — This advisory, prepared by IDP along with the National Immigration Project, American Immigration Council and NYU Clinical Law Professor Nancy Morawetz, describes (1) the Court’s holding inJudulang and who is potentially affected; (2) steps that lawyers (or immigrants themselves) should take immediately in pending or already concluded removal proceedings involving such individuals; and (3) some other potential uses of the Judulang decision’s reasoning to challenge agency policy in removal case
- Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients (Jan. 31, 2011) — This advisory for criminal defense attorneys, prepared by IDP and the Neighborhood Defender Service of Harlem and updated by the Immigration & Human Rights Clinic of the David A. Clarke School of Law at the University of the District of Columbia, gives a brief overview of new developments in the “categorical approach” that immigration courts use to determine the immigration effects of a conviction and offers concrete practice tips for defense counsel in light of these changes.
- Ensuring Compliance with Padilla v. Kentucky without Compromising Judicial Obligations: Why Judges Should Not Ask Criminal Defendants About Their Citizenship/Immigration Status (January 2011) — In Padilla v. Kentucky, the Supreme Court confirmed that criminal defendants have a right to advice from counsel about the potential immigration consequences of their convictions, and that failure to provide such advice may constitute ineffective assistance of counsel, in violation of the Sixth Amendment. As courts around the country consider what role they should play in ensuring that defense counsel comply with their obligations post-Padilla, judges should refrain from asking about defendants’ citizenship/immigration status. This document outlines the constitutional, statutory, and ethical reasons that judges should not solicit or otherwise require defendants to disclose, orally or in writing, their citizenship/immigration status when that status is not a material element of the offense with which they are charged. This advisory was prepared by the NYU Immigrant Rights Clinic in collaboration with the IDP.
- Practice Advisory: Multiple Drug Possession Cases after Carachuri-Rosendo v. Holder (June 21, 2010) — This practice advisory describes the Supreme Court decision in Carachuri-Rosendo v. Holder in which the Court unanimously rejected the government’s overreaching application of the “drug trafficking” aggravated felony mandatory deportation ground to individuals with more than one low-level simple possession drug offense. The advisory addresses what the Carachuri decision means both for noncitizens with a second or subsequent conviction where the record of conviction contains no finding of a prior conviction, and those with cases where the record of conviction does contain some finding a prior conviction.
- Practice Advisory: Sample Carachuri-Rosendo Motions (June 21, 2010) — This practice advisory, prepared by the National Immigration Project, provides sample motions for individuals who may now be eligible for relief from removal or another immigration benefit under the Supreme Court’s decision in Carachuri-Rosendo v. Holder.
- Practice Advisory: Duty of Criminal Defense Counsel: Representing an Immigrant Defendant after Padilla v. Kentucky (April 9, 2010, appendices updated January 2012) — This practice advisory, prepared by the IDP for the Defending Immigrants Partnership, provides initial guidance on the duty of criminal defense counsel representing an immigrant defendant after the Supreme Court’s Sixth Amendment right to counsel decision in Padilla v. Kentucky (U.S. March 31, 2010). In this decision, the Court held that, in light of the severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.
- Advisory for Haitian Nationals Considering Applying for TPS: Past Criminal Dispositions/Conduct Could Bar TPS Eligibility and Lead to Detention and Deportation (January 20, 2010) — After the January 12, 2010 earthquake in Haiti, the U.S. government designated Haiti as a country experiencing “extraordinary and temporary conditions” that prevent its nationals from returning to the country safely. As a result, Haitian nationals may apply for what is called Temporary Protected Status (TPS) in order to avoid removal from the United States and to obtain employment authorization. However, Haitian nationals who have ever been arrested for a crime should know that past criminal dispositions may make them ineligible for TPS (and that future criminal dispositions may make them ineligible for re-registering for such benefits later). In addition, those who may be ineligible under these criminal bars should know that applying for TPS status may lead not only to a denial of TPS status, but to possible immigration detention and deportation. This advisory provides information about the types of past criminal dispositions or conduct that could lead to a finding of ineligibility for TPS.
- Practice Advisory: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 2009) — Using the approach that sometimes some good can come of a bad decision, this advisory reviews the specific holding in the Supreme Court’s June 2009 decision in Nijhawan v. Holder, No. 08-495, 2009 WL 1650187 (U.S. June 15, 2009), analyzes the decision’s impact on application of the categorical approach to aggravated felony determinations generally, and provides specific suggestions on how Nijhawan may be used affirmatively to overcome unfavorable case law in certain jurisdictions on certain aggravated felony issues, including the reach of the sexual abuse of a minor and drug trafficking grounds. The advisory also attaches an Appendix Chart summarizing the impact of the Nijhawan decision on the analytical approach to be applied to each of the various aggravated felony grounds.
- Advisory on “Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu” (May 11, 2009) (175K PDF)
Fact Sheet: Early/Conditional Parole for Deportation Only
In New York, some immigrants who are serving time for their criminal sentences in prisons have the option to request transfers to immigration custody for the sole purpose of being deported. These English and Spanish fact sheets prepared by Peter Markowitz, then of the Bronx Defenders, and updated by IDP, provide information on Early/Conditional Parole for Deportation Only (E/CPDO).
Tooby’s Guide to Criminal Immigration Law: How Criminal and Immigration Counsel Can Work Together in Criminal Cases (2008)
This 230 page volume, being offered for downloading free of charge by the Law Offices of Norton Tooby, includes strategies for avoiding deportation at each stage of a criminal case: investigation, consultation, plea, sentence, post-conviction relief.