Skip navigation

Prison Law Office Information for California State Prisoners Immigration Manual Rev 2012

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
PRISON LAW OFFICE
General Delivery, San Quentin CA. 94964
Telephone (510) 280-2621  Fax (510) 280-2704
www.prisonlaw.com

YOUR RESPONSIBILITY WHEN USING THIS MANUAL
When we wrote this material we did our best to give you useful and accurate
information because we know that prisoners often have difficulty obtaining legal
information and we cannot provide specific advice to all the prisoners who request
it. The laws change frequently and are subject to different interpretations. We do
not always have the resources to make changes to this material every time the law
changes. Moreover, immigration law is extremely complex and this manual
provides only a very general overview of the law. If you use this information, it is
your responsibility to make sure that the law has not changed and is applicable to
your situation. Most of the materials you need should be available in your
institutional law library.

Director:
Donald Specter
Managing
Attorney:
Sara Norman
Staff Attorneys:
Rana Anabtawi
Susan Christian
Rebekah Evenson
Steven Fama
Penny Godbold
Megan Hagler
Alison Hardy
Corene Kendrick
Kelly Knapp
Millard Murphy
Lynn Wu

INFORMATION FOR
CALIFORNIA STATE PRISONERS WITH
IMMIGRATION HOLDS
Revised March 2012

This manual is designed for noncitizen prisoners in the custody of the California
Department of Corrections and Rehabilitation (CDCR). Thus, the manual is addressed to
people who are currently serving criminal sentences of longer than one year and who have at
least one felony conviction; people in other situations may have more options for relief from
removal.
The purpose of the manual is to give noncitizen CDCR prisoners an understanding of
what will happen to them as the result of an immigration detainer (hold), help them decide
whether to challenge removal (deportation), and help them prepare for the proceedings if
they choose to challenge removal. For most noncitizen prisoners, the main questions will be
whether they can be deported and whether they have any defenses to deportation (known as
“relief from removal”). The answers will depend on each person’s immigration status, other
immigration history, the type of criminal convictions they have on their record, and family or
social factors. Unfortunately, most CDCR prisoners will be deportable and will have few or
no defenses to deportation.

Board of Directors
Penelope Cooper, President  Michele WalkinHawk, Vice President  Marshall Krause, Treasurer
Honorable John Burton  Felecia Gaston  Christiane Hipps  Margaret Johns
Cesar Lagleva  Laura Magnani  Michael Marcum  Ruth Morgan  Dennis Roberts

OTHER RESOURCES
The laws that govern deportation are contained in various sources. These are the
Immigration and Nationality Act (INA), which is set forth in the United States Code (USC),
the Code of Federal Regulations (CFR), decisions of the Board of Immigration Appeals
(BIA), and federal court decisions.
An excellent source of information about the immigration consequences of criminal
convictions is the Immigrant Legal Resource Center (ILRC). The ILRC publishes a
comprehensive manual called Defending Immigrants in the Ninth Circuit: Impact of Crimes
under California and Other State Laws. The ILRC website at www.ilrc.org has helpful
resources including a chart of the immigration consequences of various California criminal
offenses and a list of organizations that provide low cost or free legal services for
immigrants.
Another helpful organization is The Florence Immigrant and Refugee Rights Project,
which provides “know your rights” presentations and limited legal services for people in the
immigration detention centers in Arizona near several of California’s out-of-state prisons.
The Project website at www.firrp.org contains self-help materials with more details on many
of the topics discussed in this Manual. The Project’s address is Florence Project Main Office,
P.O. Box 654, Florence, AZ 85132.
The Northwest Immigrant Rights Project, also provides know your rights
presentations and legal services for persons in immigration detention centers in Washington
where California prisoners may be transferred. They have a self-help guide at
www.nwirp.org. NWIRP’s address is 615 2nd Avenue, Suite 400, Seattle, WA 98104.
Families for Freedom and the Immigrant Defense Project, two New York-based
organizations, provide self-help materials for people facing deportation and information for
families assisting their loved ones in the deportation process. They are among the several
authors of Deportation 101: A Community Resource on Anti-deportation Education and
Organizing. The Deportation 101 manual can be downloaded (in English or Spanish) at
www.familiesforfreedom.org or at www.immigrantdefenseproject.org.
Another source of information and legal forms is the Department of Justice Executive
Office for Immigration Review website, www.justice.gov/eoir. Also helpful are the U.S.
Immigration and Customs Enforcement website at www.ice.gov and the U.S. Citizenship and
Immigration Services website atwww.uscis.gov. Both have information and some forms.
The ICE webpage includes an online detainee locator to track the whereabouts of any person
in federal immigration custody.
The Prison Law Office can provide more information on challenging criminal
convictions through direct appeals or state and federal habeas corpus petitions. The Office
can also provide information on challenging state prison classifications. Write to the Prison
Law Office, General Delivery, San Quentin, CA 94964 or go to the Resources page at
www.prisonlaw.com.
Prison Law Office Immigration Manual (March 2012) - 2

ACKNOWLEDGMENTS
We are deeply indebted to the Political Asylum/Immigration Representation Project
(PAIR) (www.pairproject.org), which generously shared its Self-Help Manual for People
Detained by the Immigration Service (Nov. 2009) with us. PAIR’s manual provided the
framework for this manual, although Prison Law Office staff reorganized and revised the
content significantly to make the material appropriate for California state prisoners.
We are also sincerely grateful to Angie Junck of the Immigrant Legal Resource
Center and Raha Jorjani of the U.C. Davis School of Law Immigration Law Clinic, who
reviewed drafts of this material and provided feedback that greatly improved this manual.
Further thanks are due to the Detention Watch Network, Families for Freedom,
Immigrant Defense Project, and the National Immigration Project of the National Lawyers
Guild, who kindly allowed us to append excerpts of their excellent resource, Deportation
101: A Community Resource on Anti-Deportation Education and Organizing, to this manual.
Any errors in this manual are the sole responsibility of the Prison Law Office.

Prison Law Office Immigration Manual (March 2012) - 3

TABLE OF CONTENTS
THE IMMIGRATION DETAINER (HOLD)
What is an immigration detainer or hold? How will I know if I have a hold? ....................6
Will the immigration hold affect my prison housing or programming?..............................6
Can I be deported before the end of my prison term?..........................................................7
Can I be moved to a prison in my home country to finish my prison term? .......................7

GROUNDS FOR DEPORTATION
Can I be deported even if I am a citizen? How do I know if I might be a citizen? ............7
Who can be deported? .........................................................................................................8
Can I be deported even if I was in the U.S. legally or had a green card before I was
convicted? Can I be removed even if I am married to a U.S. citizen or am the parent
of a U.S. citizen?..................................................................................................................9
What are the reasons why I could be deported? ..................................................................9
Does my criminal conviction make me deportable?..........................................................10
Can I argue that my criminal offense does not make me deportable or is not an
aggravated felony, drug-related crime, crime involving moral turpitude (CMT) or
other removable offense? ..................................................................................................13
Is there anything else I can do about my criminal conviction to improve my chances
of not being deported? .......................................................................................................14
Can I be deported if I am still challenging my criminal conviction?.................................16

RELIEF FROM DEPORTATION
What forms of relief from deportation might be available to me if I am a longtime
lawful permanent resident just finishing a state prison sentence? .....................................16
Can I avoid being deported regardless of my immigration status if my deportation
will cause hardship to me or my family? ...........................................................................17
Can I avoid being deported if returning to my home country will put me in danger?.......19
Prison Law Office Immigration Manual (March 2012) - 4

Can I avoid being deported if I have been the victim or witness of a crime in the U.S?...21

DEPORTATION PROCEEDINGS
What will happen at the end of my prison term? ..............................................................23
Does ICE have to give me a hearing, or could I be deported without a hearing?..............24
Can or should I ask to voluntarily leave the United States? ..............................................24
Can I be released, or will I have to stay in detention while I am awaiting
a deportation hearing?........................................................................................................25
How long will it take before I go to my first hearing?.......................................................25
Do I have a right to a lawyer for my hearings?..................................................................25
What will happen at my immigration court hearing(s)? ....................................................26

AFTER THE REMOVAL ORDER
How long will it be after the removal order before I am removed? ..................................27
Can I appeal my removal order or get the immigration judge to reopen or
reconsider my case? ...........................................................................................................27
If the BIA denies my appeal, can I challenge the removal order in court?........................28
Can I request to be sent to a country other than my home country?..................................28
What if no country will take me? Will I have to stay in detention if my deportation is
delayed? .............................................................................................................................28
Can I come back to the United States after I am removed?...............................................29
What will happen if I come back to the United States without permission
after being removed?..........................................................................................................29
APPENDICES (EXCERPTS FROM THE DEPORTATION 101 MANUAL) .............................30

Prison Law Office Immigration Manual (March 2012) - 5

THE IMMIGRATION DETAINER (HOLD)
What is an immigration detainer or hold? How will I know if I have a hold?
The California Department of Corrections and Rehabilitation (CDCR) reports all
prisoners who are believed to be noncitizens (often based upon birth in a foreign place) to
U.S. Immigration and Customs Enforcement (ICE), a division of the Department of
Homeland Security. This is the start of the process by which ICE identifies noncitizen
prisoners for “removal,” (often called deportation) from the U.S. An overview of the
deportation process and the agencies that are involved in the various stages of the process
(“Deportation Map” from Deportation 101) is included in the Appendices at the end of this
manual.
If the CDCR notifies ICE that you may be noncitizen, ICE will interview you to
decide whether or not to issue an immigration detainer (also called an ICE “hold”). Any
information that you give to ICE in the interview can be used to place a hold and eventually
to deport you. For tips on what an immigration hold means and what to do during an
immigration interview, see the Appendix (“Immigration in Jail” from Deportation 101) at the
end of this manual.
An ICE hold is a request for CDCR to notify ICE when your prison term is finished
and to hold you in custody so that ICE can pick you up and place you into deportation
proceedings. It is important to understand that ICE may issue a hold even if you are a U.S.
citizen or are lawfully in the U.S. An ICE hold does not necessarily mean that you can or
will be removed from the U.S.
If ICE decides to issue a hold, CDCR will give you a written notice (Form I-247)
telling you that a hold has been placed. The form will show whether ICE is just investigating
you or whether ICE is actually asking CDCR to hold you for transfer to ICE custody when
you finish serving your state prison term. Typically, CDCR officials will notify ICE at the
end of your term so that you will be transferred to ICE custody and not be released to the
streets. CDCR can hold you for ICE for no more than 48 hours (not counting weekends and
federal holidays) after the date that your state prison term ends. Sample requests to be
released from custody if you have been held in state prison more than 48 hours after the end
of your state prison term can be obtained by contacting Immigrant Legal Resource Center
(www.ilrc.org).

Will the immigration hold affect my prison housing or programming?
Although the ICE form says that an ICE hold should not affect prison classification or
eligibility for work programs, the CDCR regulations provide otherwise. Under CDCR rules,
an immigration hold does not increase your classification score, but it is a case factor that
will be noted in your classification documents and might affect where you will be housed.
For example, if you have an immigration hold you cannot be housed at a Level One
minimum security facility that does not have gun towers. You are also more likely to be
transferred to one of the CDCR’s out-of-state facilities if you have an immigration hold. An
Prison Law Office Immigration Manual (March 2012) - 6

immigration hold may prevent you from participating in some programs, such as Prison
Industries Authority (PIA) jobs, the Family Foundations Program, the Alternative Custody
Program, substance abuse programs, or work furlough. If you want to challenge a
classification or program restriction based on your ICE hold, you should file a CDCR Form
602 administrative appeal and pursue it to the highest level. If you do not get a satisfactory
response to your 602, you may want to file a petition for writ of habeas corpus in state court.
On request, the Prison Law Office can send you free information on how to file
administrative appeals and state habeas petitions.
Can I be deported before the end of my prison term?
California will not let ICE deport you until you have finished serving your state
prison term.
In the past, the California law-makers have tried to change the laws to allow early
release and deportation of some noncitizen prisoners. However, as of this date, efforts to
change the law in this way have not succeeded.
Can I be moved to a prison in my home country to finish my prison term?
There are treaties under which noncitizen prisoners may serve their sentences in their
home countries. However, there is no right to a transfer and the U.S. government, the state of
California, and the foreign country all must agree to a transfer. The process takes 6 months
to 3 years and very very few California prisoners have ever been transferred. Your
correctional counselor should be able to provide you with transfer application forms and
information on the process. Information is also available from the Immigrant Legal Resource
Center (ILRC).
If you want to apply for a transfer, you should understand what rights you will or
won’t have in your home country and what your home county’s prison conditions are like.
For more information, Human Rights Watch and Amnesty International write reports that
comment on prison conditions in other countries.

GROUNDS FOR DEPORTATION
Can I be deported even if I am a citizen? How do I know if I might be a citizen?
ICE cannot deport a person who was born a U.S. citizen, has gone through the
process of becoming a “naturalized” U.S. citizen, or has derived citizenship from a parent.
Under certain circumstances, you might be a citizen by birth or through your parents
if:
$ You were born in the U.S. or a U.S. territory such as Puerto Rico, the U.S. Virgin
Islands or Guam;
Prison Law Office Immigration Manual (March 2012) - 7

$ You were born in another country, but one or both of your parents was a U.S. citizen
and lived in the U.S. for a certain period of time before your birth;
$ You were found in the U.S. when you were under the age of 5 and your parents’ place
of birth are unknown;


Before your 18th birthday and while you were a Lawful Permanent Resident, both (or
sometimes just one) of your parents became a naturalized citizens and while you were
still an unmarried minor, a citizen parent had legal and physical custody of you.

The law is complicated and has changed over the years; there may be other grounds
on which you might or might not be a U.S. citizen or national. Five factors will affect
whether you are a U.S. citizen even though you were born outside of the U.S. Those factors
are:
(1) Whether your parents were married when you were born;
(2) Your date of birth;
(3) Whether one or both of your parents was a U.S. citizen when you were born or
became a citizen while you were a minor;
(4) How long your citizen parent lived in the U.S. prior to your birth; and
(5) How long and at what ages you have lived in the U.S.
Charts to help determine whether you are a U.S. citizen are available at www.ilrc.org
under the Citizenship and Naturalization tab.
If you think there is a possibility that you are a U.S. citizen, you should
immediately gather information and documents to prove your citizenship. If possible,
you should send this information to ICE while you are still in state prison to try to get
ICE to drop your hold. If ICE still brings deportation proceedings against you, you
should not waive your rights to have a hearing in front of an Immigration Judge. When
you have a hearing, you should tell the Immigration Judge why you think you are a
citizen. It is never too late to bring a citizenship claim. You can do this even after you
have been removed from the U.S.
Who can be deported?1
Any person who is not a U.S. citizen can be deported from the U.S. However,
whether you are in the U.S. legally, and what type of immigation status you have, can make a
big difference in whether you have any chance of being able to stay in the U.S. at the end of
your prison term. It may also make a difference in whether you are ever able to come back to
the U.S. lawfully.
People who have legal status in the U.S. include lawful permanent residents (green
card holders), asylees/refugees, people granted withholding of removal or temporary
protected status (TPS), and people with visas (as tourists, students, businesspeople, etc.). But
1

Portions of this section were adopted from Deportation 101.
Prison Law Office Immigration Manual (March 2012) - 8

even if you are in the U.S. legally, you may be deportable because of your criminal
conviction. Unless you are granted some type of relief, you could lose your lawful status
and/or be barred from getting a more secure form of legal status and end up being deported.
People who are “undocumented,” meaning they are not in the U.S. lawfully, will have
a much lower chance of being allowed to stay in the U.S. If you are not legally in the U.S.,
you are subject to deportation regardless of whether you were convicted of a crime. On top
of that, your conviction may make it even less likely that you will be able to avoid
deportation and may affect whether you can ever visit or live in the U.S. legally in the future.
You are not lawfully in the U.S if:
$ you “entered without inspection” – for example, you walked across the border
without going through Immigration inspection.
$ you have a prior deportation order; you might have a deportation order, even if you
don’t know it – for example, if your green card application was denied and you did
not get the notice that the government had started a deportation case against you then.
$ you had a visa but stayed in the U.S. longer than your visa allowed.
If you are not in the U.S. legally, your main goal at the end of your prison term might
be to preserve your ability to get legal status in the U.S. either now or in the future.
Whether or not you can succeed in that goal will be affected by what type of criminal
conviction(s) you have.
Can I be removed even if I was in the U.S. legally or had a green card before I was
convicted? Can I be removed even if I am married to a U.S. citizen or am the parent of
a U.S. citizen?
Deportation is always a possibility for anyone who is not a U.S. citizen. For
example, even a person who is married to a U.S. citizen, has children who are U.S. citizens,
and has had a green card for 20 years could be deported. However, in some situations, your
green card status or close family relationship to U.S. citizens might help you avoid
deportation. (See “Relief from Deportation,” below.)
What are the reasons why I could be deported?
There are several reasons why a noncitizen may be deported. In some cases, more
than one reason may apply. The most common reasons are:


You have violated immigration law, such as by entering the U.S. without
documentation or with false documents, staying after your visa expired, committing
marriage fraud, or returning to the U.S. after being deported. You can be deported for
these immigration violations even if you do not have a criminal conviction.



You have certain type(s) of criminal conviction(s), including even minor convictions
relating to drugs, crimes involving moral turpitude (such as theft, fraud or violence),
Prison Law Office Immigration Manual (March 2012) - 9

firearms, domestic violence, child abuse, sexual crimes, and prostitution. While
many felony convictions resulting in state prison sentences carry severe immigration
consequences, the fact of a felony conviction alone does not necessarily mean an
individual will be removed.
Does my criminal conviction make me deportable?
Many types of felony convictions will make you deportable from the U.S. even if you
are in the U.S. lawfully. More serious types of crimes will also limit your ability to get relief
from deportation regardless of whether you have lawful status or are undocumented. The
following is an overview of the most common types of crimes that will make you removable.
Included in the Appendices to this manual are charts summarizing the different types of
criminal conviction with immigration consequences (“Immigration Consequences of Crime
Summary Checklist” and “Suggested Approaches for Representing a Noncitizen in a
Criminal Case”, both from Deportation 101). Please be aware that the law is complicated and
there can be disputes over whether particular offenses fall into certain categories.
1.

Aggravated Felonies

An aggravated felony conviction is the most serious type of crime under immigration
law. It triggers deportation even for people with lawful status and bars almost all forms of
relief from removal for any noncitizen. Therefore, an aggravated felony conviction results in
virtually mandatory deportation in the great majority of cases.
If you are undocumented and have an aggravated felony conviction, you most likely
will be deported from the U.S. “administratively” without a hearing. This means that you
will not even get a hearing in front of a judge to make sure that your conviction really
qualifies as an aggravated felony.
If you are deported from the U.S. because of an aggravated felony, you will be
permanently barred from returning to the U.S. If you are deported for an aggravated felony
and then return to the U.S. illegally, it is a crime and you could be sentenced to up to 20 years
in federal prison just for the illegal re-entry.
Immigration law has its own definition of what counts as an “aggravated felony,” and
the category actually includes many misdemeanors and other offenses that are not
particularly “aggravated.” The list of aggravated felonies includes the following crimes:


murder



rape



sexual abuse of a minor



any offense generally considered to be “drug trafficking”

Prison Law Office Immigration Manual (March 2012) - 10



trafficking in firearms



money laundering and illegal money transactions involving more than $10,000



fraud and tax evasion, including welfare fraud involving more than $10,000



a “crime of violence” with a sentence imposed of one year or more. A crime of
violence means (a) a crime for which one of the elements is the use, attempt to use, or
threatened use of physical force against a person or property, or (b) any other crime
that is a felony and involves a substantial risk that physical force may be used against
a person or property in the course of committing crime.



theft, burglary, or receipt of stolen property with a sentence imposed of one year or more



any crime of smuggling, harboring or illegally transporting noncitizens, except for a first
offense involving your parent, spouse or child



using or creating false documents with a sentence imposed of one year or more, except
for a first offense which you committed to aid your spouse, child or parent.



commercial bribery, forgery, trafficking in vehicles with altered numbers with a
sentence imposed of one year or more



bribery of a witness or perjury, with a sentence imposed of one year or more



various other offenses such as demand for ransom, child pornography, a RICO offense
punishable with a 5 year sentence, running a prostitution business, slavery, offenses
relating to national defense, sabotage or treason, revealing the identity of an undercover
agent, and failure to appear to serve a sentence if the underlying offense is punishable by
a term of five years, or to face charges if the underlying sentence is punishable by two
years, and



obstruction of justice, with a sentence imposed of one year or more



attempt or conspiracy to commit any aggravated felony.
2.

Crimes Relating to Controlled Substances

Drug convictions have very serious immigration consequences. Nearly all offenses
for crimes “relating to” controlled substances (illegal drugs) will make a non-citizen
removable. Even minor offenses such as being under the influence of drugs, possessing drug
paraphernalia, or possessing a small amount of drugs, will trigger these immigration
consequences. However, some crimes that are not directly related to drugs, like a conviction
for being an “accessory after the fact” to another person’s drug crime, may not qualify as
being “related to” controlled substances.
Prison Law Office Immigration Manual (March 2012) - 11

There is only one situation in which a drug crime might not have severe immigration
consequences -- if your only drug crime is one conviction of simple possession of 30 grams
or less of marijuana. If you have lawful status, you are not deportable if that is your only
crime. If you are undocumented, you may be eligible to avoid being deported for the offense.
Some controlled substance offenses that qualify as “drug trafficking” offenses will
also be classified as aggravated felonies. For immigration purposes, drug trafficking can
include even sale of small amounts of a controlled substances and possession with intent to
sell. There are arguments, however, that convictions for transporting, offering to transport,
or offering to sell a controlled substance are not “drug trafficking” aggravated felonies. If
you are convicted of any of these particular offenses you might be able to argue that your
conviction is not an aggravated felony.
3.

Crimes Involving Moral Turpitude (CMTs)

“Crimes involving moral turpitude” (or “CMT’s”) is a broad category of crimes that
may make you removable and ineligible for relief from deportation. Hundreds of types of
offenses qualify as CMTs. Since federal immigration law provides no specific definition of
what crimes are CMTs, there are numerous legal disputes about whether a particular crime is
or is not a CMT. In general, the following types of crimes are considered to be CMTs:


offenses (either felonies or misdemeanors) which require either an intent to defraud
or an intent to steal (for example grand or petty theft);



offenses which require an intent to cause or threaten great bodily harm or, in some
cases, in which great bodily harm is caused by a willful or reckless act;



some offenses against special groups such as spouses, domestic partners, minors, and
other dependents;



felonies and some misdemeanors which require “malice”; and



sex offenses which require “lewd” intent.

Whether you will be removable or will be barred from staying in the U.S. for a CMT
depends on the number of your CMT convictions, the length of the potential or actual
sentence you received for the CMT, and the date you committed the CMT. A CMT
conviction can limit the types of relief from removal that are available to you, but you may
have more options than if you have an aggravated felony conviction.
4.

Other Deportable Offenses

Some crimes that do not qualify as either aggravated felonies, controlled substance
offenses, or CMTs can make you removable and/or bar you from obtaining immigration
relief. However, with such convictions, you may have more ways to get relief from removal.

Prison Law Office Immigration Manual (March 2012) - 12

The most common offenses for which you can be deported (that are not in one of the other
categories) are the following:


a firearms conviction, such as unlawful possession of a gun, or



a conviction for domestic violence, stalking, violating a protective order or abusing,
neglecting or abandoning a child.
5.

Gang Membership and Affiliation

There is no immigration law that makes a person deportable just for gang
membership or affiliation (although a conviction for actually participating in criminal gang
activities would likely be deemed to be a CMT). However, if you have a record of being
involved with a street or prison gang, it will be especially difficult for you to get any relief
from deportation. If there is any chance that ICE will think that you have a gang affiliation,
and you want to avoid being deported, you should gather as much evidence as possible to
show that you were not involved in a gang or that you are rehabilitated and have dropped out
of the gang lifestyle.
Can I argue that my conviction is not an aggravated felony, drug-related crime, crime
involving moral turpitude (CMT) or other removable offense?
The federal government often has the burden to prove that your criminal conviction is
an aggravated felony, drug-related crime, CMT or other deportable offense. In some cases,
your criminal history records will clearly show that your crime falls in one or more of those
categories. Other times, it may be open to dispute. Usually disputes happen where the state
law that you were convicted under covers several different types of actions that don’t all
neatly fit into one of the immigration law categories. For example, a California conviction
for possessing a weapon might involve either firearms or non-firearm weapons; that
conviction will qualify as a deportable crime under the immigration law firearms rule only if
the weapon actually was a firearm.
If there is a question about whether your crime fits a certain immigration law criteria,
you can try to defend against deportation by arguing that your conviction does not make you
deportable or is not a drug crime, aggravated felony or CMT. An immigration judge will
usually use a “categorical analysis” to decide whether your conviction triggers a particular
immigration law penalty. For example, for a weapons possession offense, the judge might
have to decide if there is evidence that you possessed a gun rather than a knife or other
weapon. In most cases, the immigration judge is only allowed to look at certain official
documents from your criminal case file to see what the facts were. Those documents include
the charging papers (indictment, complaint, information), jury instructions, verdicts or
findings made by a jury or court, your written agreement to plead guilty or no contest and the
reporter’s transcript from the hearing when you entered your plea, and the sentencing order
and the reporter’s transcript from your sentence hearing. The immigration judge cannot rely
on a police report or probation report unless you pled guilty or no contest and you or your
attorney agreed that the report contained a factual basis for the plea. The immigration
Prison Law Office Immigration Manual (March 2012) - 13

judge cannot consider comments you make or the prosecutor’s or co-defendant’s statements,
or other any information that is not an official finding of the criminal case jury or judge.
You should be aware that the categorical approach currently does not apply in two
important situations. This means that in some cases the immigration judge can look outside
of the official documents described above to decide whether you are deportable. First, the
categorical approach does not fully apply to immigration provisions with “circumstancespecific” factors, like the aggravated felony for “fraud or deceit offense with a loss exceeding
$10,000” and possibly the deportable “crime of domestic violence.” Second, the categorical
approach does not fully apply to decisions about whether crimes involve moral turpitude (are
CMTs).
Is there anything else I can do about my criminal conviction that would improve my
chances of not being deported?
Getting your criminal conviction reversed or reduced to less serious offenses, or
getting your sentence lowered, might help you avoid deportation. For example, getting an
aggravated felony reduced to a less serious offense under immigration law could increase
your chances of getting relief from removal. The key is that the conviction must be reversed,
vacated or reduced because of legal error. For example, the immigration consequences of a
conviction will not be eliminated or changed by so-called “rehabilitative relief.”
Rehabilitative relief includes situations where the court modified or erased (sometimes called
“expunging”) a conviction because you completed probation or fulfilled other conditions or
for humanitarian purposes. In deciding whether to challenge your criminal conviction(s) to
avoid deportation, you should think about what remedy the courts could grant you if you win
the legal arguments you are making, and whether you might end up with no criminal
conviction or with a different type of conviction or shorter sentence with less severe
immigration consequences.
Any challenge to your criminal conviction should be presented to the state courts that
hear criminal cases (not to the immigration judge). You should bring any criminal case
challenges as soon as possible in hopes of getting the issues resolved before the end of your
CDCR prison sentence.
There are many types of legal errors that can lead to reversal or modification of a
conviction or sentence. Sometimes there are legal errors related to a defendant’s noncitizen
status. For example, the court that convicted you might have made a legal error requiring
reversal of your conviction if it did not warn you that your guilty or no contest plea could
make you deportable. As another example, you might be able to get your conviction reversed
if your criminal case attorney provided ineffective assistance by not accurately advising you
about the immigration consequences of a conviction before you decided whether to plead
guilty or no contest.

Prison Law Office Immigration Manual (March 2012) - 14

The most common ways to challenge a criminal conviction are summarized here:


You can file a direct appeal. You must file a notice of appeal within 60 days of your
sentencing; in rare cases, you may be able to get permission to file a late notice of
appeal. Also, if you pled guilty or no contest, and you want to raise some types of
issues, will have to apply to the court for permission to raise those issues; this is
called a certificate of probable cause. If you are indigent (have little or no money)
and you ask for an attorney, the court must appoint an attorney to represent you in
your direct appeal at the state’s expense.



You can request a recall of commitment. The court that sentenced you has power to
grant a recall of commitment within 120 days after your sentencing for any rational
reason related to lawful sentencing. If the court was not aware of the immigration
consequences of your sentence, it might be willing to recall your commitment and resentence you to a term that could make it easier for you to avoid removal under the
immigration laws.



You can file a motion to vacate your criminal conviction under Penal Code §
1016.5 if (1) you pled guilty or no contest and the judge did not warn you that the
plea could lead to your removal from the U.S. and (2) you can show there is a
reasonable probability that you would not have pled guilty or no contest if you had
been properly warned. There is no set time limit for filing a § 1016.5 motion, but you
should do so as soon as possible.



You can file a state petition for writ of habeas corpus. You must file a habeas
while you are still in state prison or on state parole. You can request an attorney; if
the court issues an “order to show cause” (an order that the state respond to your legal
arguments), then it must appoint an attorney to represent you at the court’s expense.
State habeas corpus is used when the issue requires consideration of facts that were
not presented in the trial court. A common habeas corpus claim is that trial or
appellate counsel provided ineffective assistance that might have affected the
outcome of the case. For example, you may have received ineffective assistance if
(1) your criminal attorney did not accurately tell you the specific immigration
consequences if you entered a guilty or no contest plea and (2) you would not have
entered the plea if you had been properly advised.



If you challenge your conviction in the state courts, and you are not successful, you
might be able to bring a petition for writ of habeas corpus in federal court. There
are strict deadlines for filing federal habeas corpus actions and you usually will have
to file your petition within one year after your direct appeal is concluded; however,
some types of state court actions can toll the timelines (stop the clock) while they are
pending. If you are indigent, the court might appoint an attorney to represent you free
of charge, but it does not have to do so.

The rules of criminal law and procedure are complicated. Your trial or appellate attorney
from your criminal case may be able to answer your questions or help you challenge your
Prison Law Office Immigration Manual (March 2012) - 15

conviction or sentence. You can get more information about direct appeals, challenges to
guilty pleas, and state or federal habeas corpus by writing to the Prison Law Office, General
Delivery, San Quentin, CA 94964.
Can I be deported if I am still challenging my criminal conviction?
The rules used to be that you could not be removed based on your criminal conviction
until your conviction became officially “final,” meaning that the time to file a direct appeal
had passed or your direct appeal was decided. However, a recent court decision said that an
immigration judge may find that you are removable for a criminal offense if a criminal court
has entered a judgment of conviction, even if you are appealing the conviction. Also, the fact
that you have an on-going direct appeal may be irrelevant if you can be deported based on
non-criminal grounds like being undocumented or overstaying a work visa.
Removal proceedings will not be stopped just because you are bringing a “collateral
attack” on your conviction, such as a motion to vacate or a petition for a writ of habeas
corpus. Because of this, it is very important to get those types of cases going as soon as
possible.

RELIEF FROM DEPORTATION
What forms of relief from deportation might be available to me if I am a longtime
lawful permanent resident just finishing a state prison sentence?
There are a couple of types of relief from deportation that are available only to people
who are longtime lawful permanent residents of the U.S. (green card holders). Those types
of relief are discussed in the following subsections. If you read the following subsections
and think you can apply for these types of relief, you should tell the immigration judge at
your first hearing and ask for the proper application and fee waiver forms.
1.

Relief from Removal Under Former INA § 212(c)

If you have an old conviction with immigration consequences and you are a lawful
permanent resident, you might be able to get relief from deportation under former laws that
were more lenient than current laws. Former INA § 212(c) relief is still available to lawful
permanent residents who were eligible for § 212(c) at the time that they entered their plea.
The rules governing who is eligible for § 212(c) are complex and the rules that apply
may be different depending on the date of your old conviction and the date and type of any
new convictions. The bottom line is that if you are a permanent resident who is faced with
deportation proceedings based entirely or in part on a conviction that occurred before April 1,
1997, you should consider applying for former § 212(c) relief. At the very least, you should
try to get more information or advice about whether you might be eligible.
Section 212(c) is a discretionary remedy. This means that the immigration judge can
decide not to grant you relief from deportation even if you meet the basic eligibility criteria.
Prison Law Office Immigration Manual (March 2012) - 16

In making the decision, the judge is supposed to consider both facts in your favor and facts
against you. Favorable facts might include family ties in the U.S., living in the U.S. a long
time and/or as a child, hardship to you and your family if you are deported, service in the
U.S. military, a history of employment, property or business ties, and other evidence showing
you are rehabilitated and have a good character. Facts that the judge might consider against
you include any violations of the immigration laws, the seriousness and recency of your
criminal record, and any other evidence of a bad character. Because of these standards, while
you are in prison you should participate in as much rehabilitative programming as possible,
such as job, education, vocation, substance abuse and therapy programs. Before your release
date, you should gather documents or support letters from friends, family, counselors, or
correctional officers to try to convince the judge to grant you relief from deportation.
2.

Cancellation of Removal for Lawful Permanent Residents

If you are a lawful permanent resident, a type of relief called “cancellation of
removal” might allow you to keep your lawful permanent resident status and avoid
deportation.
To be eligible for cancellation of removal, you must meet all of the following
requirements:








have been a lawful permanent resident in the U.S. for at least five years;
have lived continuously in the U.S. for seven years after being admitted to the U.S. in
any lawful status; however, time after you committed certain offenses or after the
start of deportation proceedings does not count;
not have a conviction for an aggravated felony;
not be inadmissible or deportable as a Nazi or terrorist;
not have persecuted others;
not have had certain types of immigration status; and
not have previously been granted cancellation or suspension of deportation or §
212(c) relief.

Cancellation of removal is discretionary. In addition to meeting the basic criteria, you
must convince an immigration judge that you deserve to stay in the U.S. The immigration judge
will weigh your positive qualities against your bad acts to decide whether relief should be
granted or denied. The types of factors that the judge will consider are the same as those
discussed above in the subsection on former § 212(c) relief.
Can I avoid being deported regardless of my immigration status if my removal will
cause hardship to me or my family?
Hardship alone is not a defense against deportation. However, hardship to a close
family member might help your immigration case if (1) you are undocumented and have a
way to apply to be admitted to the U.S. lawfully or (2) you are a lawful permanent resident
who is eligible to re-apply for lawful permanent residence based on family relationships. In
such cases, the hardship might convince immigration officials to “waive” or disregard your
Prison Law Office Immigration Manual (March 2012) - 17

criminal conviction so you can pursue other types of immigration actions that will allow you
to “adjust your status” and stay in the U.S. This is called an “INA § 212(h) waiver.”
However, a § 212(h) waiver is very difficult to win, and it is unlikely that you will get a §
212(h) waiver if you have just served a state prison term.
You may be eligible for a § 212(h) waiver if you meet all of the following criteria:


The criminal offense(s) that you want to have waived is a CMT (except murder or
torture), a single conviction for simple possession of 30 grams or less of marijuana, a
conviction for prostitution; or multiple criminal convictions for deportable non-drug for
which you received a total term of 5 years or more. If you immigrated to the U.S. as a
lawful permanent resident, you must not have been convicted of any aggravated felony.
(If you came to the U.S. unlawfully or through some other legal status and later became a
lawful permanent resident, the aggravated felony bar should not apply to you.)



If you are a lawful permanent resident, you also must have lawfully resided in the
U.S. for at least 7 years before the removal proceedings are initiated. If you are not a
lawful permanent resident, you don’t have to meet a residency requirement.



You are the spouse, parent or child of a U.S. citizen or lawful permanent resident; and



Your removal would cause “extreme hardship” to your U.S. citizen or permanent
resident family member. If you have been convicted of a violent or dangerous crime,
you have to show the hardship would be “exceptional and extremely unusual.”
Hardship to yourself does not count.2 Depending upon the gravity of the underlying
criminal offense, “a showing of extraordinary circumstances might still be
insufficient to warrant a favorable exercise of discretion….”

Section 212(h) relief is discretionary, which means that the immigration judge may
deny your application for a waiver even if you meet the basic eligibility requirements. In
addition to proving extreme hardship to family members, you must show that you deserve to
get a waiver. The immigration judge may consider your family ties, the amount of time you
have lived in the U.S., your health and the health of your citizen or lawful permanent resident
children, the political and economic conditions in your home country, the economic problems
for your family if you leave the U.S., and your involvement in the community. You and your
relatives should write statements “under penalty of perjury” about these facts. You can also
ask teachers, employers, church officials, probation officers, neighbors, and others to write
statements about your good qualities.
If you think you can apply for a § 212(h) waiver, tell the immigration judge and ask
for the application form and a fee waiver form.
2

Another form of relief, cancellation of removal, can also be granted in “hardship” cases, but
if you have just finished serving a CDCR term, you will not be able to get cancellation of
removal for a hardship because a conviction that resulted in actual imprisonment of 180 days
or more will prohibit you from meeting the good moral character requirement.
Prison Law Office Immigration Manual (March 2012) - 18

Can I avoid being deported if returning to my home country will put me in danger?
If you fear harm or persecution if sent back to your home country, there are several
forms of relief that may be available. Unfortunately, you may not be able to get some of
these types of relief if you have an aggravated felony conviction or a crime that is considered
particularly serious or violent under immigration law.
You apply for most of these types of relief by filling out Form I-589, which the
immigration judge will give you at your hearing. For any of these types of relief, you need to
explain why you would be in danger and who will harm you. You should write a declaration
(a sworn statement made “under the penalty of perjury”) about why you left your country and
the harm you face if you are deported there. You can also help your case by getting
declarations from family and others who know the situation. If you have reports, letters or
newspaper articles or other papers that show how you would be in danger, attach those to
your application and bring them to your immigration court hearing.
1.

Asylum

Fear of harm alone, even serious harm, is not enough to win asylum. You may apply
for asylum if you can show a “reasonable possibility” that (1) you have suffered past
persecution or have a well-found fear of persecution in your country and (2) the persecution
is due to your race, religion, nationality, political opinion, or membership in a particular
social group. Persecution means suffering or harm or a threat to your life or freedom;
persecution might include economic deprivation like your land or money being taken away
from you. However, persecution usually does not include mere discrimination. For asylum,
the threat of persecution does not need to come from the government and can come from
other organizations or groups. Be aware that you cannot get asylum if you were well-settled
in another country (not the one you were persecuted in) before you came to the U.S.
Some types of criminal convictions will bar you from getting asylum. You cannot be
granted asylum if you have been convicted of a “particularly serious crime.” Aggravated
felonies are automatically considered particularly serious crimes, but other crimes can also
qualify as particularly serious. Drug-trafficking offenses are particularly serious crimes, and
so are most violent or dangerous crimes. There are also some other bars on asylum; for
example, you will not be able to get asylum if you committed serious crimes outside the U.S.
or persecuted people in another country or are considered to be a terrorist.
Normally, you must apply for asylum within 1 year after you arrive in the U.S. and
have no safe third country to go to. There is an exception to this rule if you have been in
some other lawful status, such as holding a green card, prior to filing the asylum application.
Otherwise, if you miss the 1-year filing deadline, your asylum application will be denied
unless you can show changed or extraordinary circumstances that provide a good reason why
you did not apply earlier. There might be “changed circumstances” if you now fear
persecution upon return to your country for a reason that did not exist when you first entered
the U.S. Changed circumstances could also include reductions in your criminal conviction or
sentence that remove one of the automatic bars to asylum. “Extraordinary circumstances”
Prison Law Office Immigration Manual (March 2012) - 19

means that you have an especially good reason why you missed the filing deadline, including
serious illness, depression resulting from past harm, or changes in your immigration status.
Asylum is a discretionary remedy, meaning that the immigration judge is not required
to grant asylum. To get asylum, you will need to convince the judge that even though you
have a criminal record, there are strong reasons to allow you to stay in the U.S.
2.

Restriction on Removal (Withholding of Removal)

Restriction on removal, also called withholding of removal, is similar to asylum, but
there are several important differences. Some of these differences could make it possible for
you to get withholding of removal even if you can’t get asylum (which is discussed in the
previous subsection).
Like asylum, you cannot get withholding of removal if you have a conviction for a
“particularly serious crime,” but the law does not not automatically bar withholding of
removal for all aggravated felony convictions. The law bars withholding of removal only if
you have been convicted of an aggravated felony (or felonies) for which you have been
sentenced to a total prison term of 5 years or more. However, federal officials have the power
to decide on a case-by-case basis that any crime is particularly serious even if the crime is not
an aggravated felony and/or the sentence imposed was less than 5 years.
Another difference is that you can get withholding of removal even if you were
settled in another country (which was not the country you were persecuted in) before you
came to the U.S.
On the other hand, the burden of proof for getting withholding of removal is higher
than for asylum. To get withholding of removal, you must show a “clear probability” that
your life or freedom would be threatened because of your race, religion, nationality, political
opinion, or membership in a social group.
There are two other differences from asylum. Withholding of removal is a mandatory
remedy, which means the judge must grant relief if you are eligible. This form of relief does
not necessarily entitle you to stay in the U.S if you could be deported to a country other than
the country where you suffered or fear persecution. However, in most instances, individuals
granted withholding are released in the U.S.
3.

Deferral of Removal Under the Convention Against Torture (CAT)

Even if you have been convicted of a serious crime, such as an aggravated felony
under immigration law, you can ask for relief from deportation under the international
Convention Against Torture (CAT) if you fear that you would be tortured by government
agents or with the government’s approval if you are forced to return to your home country (or
whatever the country U.S. officials want to send you to). CAT is a mandatory remedy, so
the immigration judge has to grant relief if you qualify.

Prison Law Office Immigration Manual (March 2012) - 20

To qualify for deferral of removal, you must show that it is “more likely than not”
that you would be tortured in your home country. The definition of “torture” is complex and
sometimes open to dispute, but involves three basic requirements:




the infliction of severe pain or suffering, either mental or physical;
which is done with the specific intent to inflict severe pain or suffering;
and which is done by a public official, at the official’s request, or with the official’s
consent or acquiescence.

Under CAT, there is no requirement that the torture be based on any particular ground such
as religion, race, nationality, membership in a particular social group, or political opinion.
However, lawful punishment or sanctions by a government are not considered torture under
CAT.
If you are granted deferral of removal, the immigration judge can order that you be deported
to some country other than your home country.
4.

Refugee Waiver

If you are a refugee with a criminal conviction and never became a lawful permanent
resident (green card holder), you may be able to apply to become a lawful permanent resident
and be allowed to stay in the U.S. despite your criminal conviction(s). You can apply to have
your conviction waived so that you can get lawful permanent resident status using a INA §
209(c) waiver.
When you apply for a § 209(c) waiver, you are claiming that you are eligible to adjust
your immigration status and that you should be allowed to stay in the U.S. even though you
have a criminal conviction. You must show humanitarian reasons why you should not be
deported.
Conviction of a particularly serious crime or an aggravated felony is not always a bar
to a § 209(c) waiver application. However, if you have been convicted of a crime that
immigration officials think is a dangerous or violent offense, they will deny your application
unless there are extraordinary circumstances. Also, you cannot get a refugee waiver if the
government believes you have been a drug trafficker or are a security or terrorist threat, even
if you don’t have a criminal conviction for a drug or terrorist crime.
Can I avoid being deported if I have been the victim or witness of a crime in the U.S?
Even though you have a criminal record, if you have been a victim or witness of a
crime, you may be eligible for certain visas that will allow you to stay in the U.S. There are
several types of these visas that apply in different situations.

Prison Law Office Immigration Manual (March 2012) - 21

1.

The U Visa for Crime Victims

The U visa allows non-citizen crime victims to stay in the U.S. for a few years and
possibly become lawful permanent residents. The purpose of this visa program is to help law
enforcement investigate and prosecute crimes and to protect victims of serious crimes.
You may be able to get a U visa if you have suffered serious physical or mental abuse
as a victim of certain crimes such as sexual or physical assaults or exploitation, kidnapping,
or extortion. You must also have assisted or be willing to assist law enforcement or another
public agency in the investigation or prosecution of the crime. Along with your application
for a U visa, you must submit a form filled out by the investigating/prosecuting agency
stating that you have been and/or are being helpful.
The U visa currently is not available to people who are lawful permanent residents,
although this policy might change in the future. If you are a lawful permanent resident, you
might be able to give up your permanent resident status to be granted a U visa.
Immigration officials can grant you a U visa even if criminal convictions or other
factors might normally bar you from staying in the U.S. However, immigration officials do
not have to grant a visa to everyone who has been a crime victim, and your criminal record
will be something that immigration officials will consider in deciding whether to give you a
U visa.
2.

The S Visa For Crime or Terrorism Informants

There are two kinds of S visas (S-5 and S-6); one is for criminal witnesses and
informants and one is for terrorism informants. To be eligible for these types of visas, you
must have important information concerning criminal or terrorist activities and must be
willing to give or have given this information to law enforcement authorities or to a court.
For the criminal informant (S-5) visa, immigration officials must find that your continued
presence in the U.S. is necessary for a law enforcement investigation or prosecution. For the
terrorist informant (S-6) visa, immigration officials must believe that you have been or will
be placed in danger as a result of providing the information. If you are eligible for one of
theses types of visas, immigration officials have the discretion to allow you to stay in the
U.S. even though you have criminal convictions and/or are undocumented.
A request for either of these types of visas must be filed by a state or federal law
enforcement agency, which would have to take responsibility for you until you either leave
the U.S. or get a different immigration status. There are a limited number of these types of
visas available each year.
The length of stay for an S-5 or S-6 nonimmigrant is limited to 3 years, and there is a
possibility of applying to become a legal permanent resident.

Prison Law Office Immigration Manual (March 2012) - 22

3.

The T Visa for Victims Brought to the U.S. For Forced Labor or Sex

The T visa program might allow you to stay in the U.S. and possibly become a
permanent resident if you have been a victim of “a severe form of trafficking in persons.”
This means that someone else brought you or convinced you to come to the U.S. and then
forced you to work or perform other services. The force could be physical or it might have
been through threats or lies. You must also show that you would suffer “extreme hardship
involving unusual and severe harm” if you were to be deported from the U.S. You must
show that you have complied with any reasonable law enforcement agency request for
assistance in the investigation or prosecution of the acts of trafficking. Only a limited
number of T visas can be granted each year.
Immigration officials have power to grant a T visa even if a person would otherwise
not be allowed to enter or stay in the U.S. due to criminal convictions or other reasons. Of
course, immigration officials can still consider your criminal record in deciding whether to
grant you a T visa. If your own crimes were caused by or related to your being a victim of
trafficking, you should make sure that the immigration official know that information.

DEPORTATION PROCEEDINGS
What will happen at the end of my prison term?
When you finish serving your state prison sentence, you will probably be picked up
by ICE and moved to one of ICE’s detention centers for your immigration case. Noncitizens
from California usually are detained in facilities in California, Arizona, Washington, and
sometimes Texas.
ICE can also conduct removal proceedings at state prisons or county jails. The
CDCR currently operates the Institutional Removal Program (IRP) for male prisoners at RJ
Donovan State Prison and Centinela State Prison; there currently is no IRP for female CDCR
prisoners. If you are selected for the IRP, immigration agents will hold your deportation
proceedings while you are serving your state prison sentence so that you can be deported
more quickly at the end of your prison term. The immigration judge and officials may come
to the prison for the hearing or the hearing may be through a video screen on which you and
the judge can see and hear each other.
Going through the IRP may lessen the amount of time you will spend in immigration
detention at the end of your criminal sentence. On the other hand, even though you have the
same rights at an IRP hearing as in Immigration Court, an IRP hearing may make it more
difficult for you to assert your rights and defenses because you will have less access to legal
information and assistance. For more information on IRP proceedings and how to object to
them, see the Appendix “Immigration in Prison” from Deportation 101, which is attached to
this manual.
ICE begins removal proceedings by filing a Notice to Appear (NTA) with the
Immigration Court and serving a copy of the Notice on you. The Notice tells you about the
Prison Law Office Immigration Manual (March 2012) - 23

nature of the proceedings, the charges against you, your right to get counsel if you can hire or
find a legal advisor, the time and place for the proceedings, and information about any free
legal services that may be available.
How long the removal process takes depends on whether you fight removal. If you
don’t have any defense to removal, the process will likely take a few weeks or a couple of
months. If you choose to fight removal, a removal case takes a bit longer, on the order of a
few months. If you are ordered removed and you appeal to the BIA, the appeal will take
another 4 to 6 months or so. If you then appeal your case to the U.S. Court of Appeals for
the Ninth Circuit, that appeal could take 1 or 2 years or more.
Does ICE have to give me a hearing or could I be removed without a hearing?
If you re-entered the U.S. illegally after a prior removal order, you can be removed
based on the prior order without any right to a hearing. The only exception is that if you fear
harm or persecution in your home country, you can ask immigration officials to deport you to
somewhere other than your home country.
There is another way in which ICE may try to remove you from the U.S. without
holding a hearing. This is called “expedited” or “administrative” removal. This can happen
if you are not a lawful permanent resident (don’t have a green card) and you have an
aggravated felony conviction. If ICE does go through with an expedited removal proceeding,
you will not be allowed to apply for any of the discretionary forms of relief from removal.
Before removing you without a hearing, ICE must give you a special notice showing that
your conviction is an aggravated felony and that you are not a lawful permanent resident. If
you receive such a notice, you should answer it in writing to let ICE authorities know if:
$ You have a green card (if possible send proof, such as a copy);
$ You think your conviction is not for an aggravated felony;
$ Your conviction is currently on direct appeal; and/or
$ You fear harm if forced to go back to your country.
Can or should I ask to voluntarily leave the United States?
Voluntary return or departure is a form of relief in deportation proceedings. It is not a
form of relief that allows you to stay in the U.S., but it has less serious consequences than an
order of removal. If you are allowed to leave the U.S. voluntarily, you will not have an
official order of removal on your record. This can be a good thing because if you have an
official order of removal, it will be harder or maybe impossible for you to return to the U.S.
through legal means.
A grant of voluntary return departure might be the best possible outcome for someone
who has just served a CDCR term and is likely to have no good defenses to removal. ICE
can grant you voluntary return after they have arrested you. Note, however, ICE often tricks
Prison Law Office Immigration Manual (March 2012) - 24

people into signing a deportation order instead of an agreement for voluntary return. An
immigration judge can also grant you voluntary departure at the beginning of removal
proceedings or at the conclusion of your proceedings. You will not be allowed to get
voluntary departure if you are deportable for an aggravated felony conviction or for terrorist
activities. Also, voluntary departure is a discretionary form of relief and it is not likely to be
granted to anyone who has served time in state prison. However, there is no harm in asking
for this type of relief.
Can I be released, or will I have to stay in detention while I am awaiting a deportation
hearing?
If you have just served a CDCR prison term, you will likely be subject to mandatory
detention, which means that you will have to stay in custody and will not be eligible for
release on bond during your removal proceedings. The detention will continue as long as
your removal proceedings are pending before an Immigration Court or the Board of
Immigration Appeals (BIA).
Nonetheless, you can ask for a bond hearing by marking the bond hearing box on
your Notice to Appear. At your hearing, the immigration judge will consider whether you
are eligible to be considered for release on bond. If you are eligible, the judge will consider
the same kind of evidence used for bail in a criminal case to decide whether you are a danger
to the community or a flight risk.
How long will it take before I go to my first immigration court hearing?
You will not go to Immigration Court for at least 10 days after you receive a Notice
to Appear. It is important to review the Notice carefully before your hearing because it may
contain mistakes. At your hearing you will have the opportunity to tell the judge about any
mistakes on the Notice.
Do I have a right to a lawyer for my hearings?
You have the right to a lawyer, but the government will not pay for one. This means
that you cannot get a public defender for Immigration Court. You must either hire a private
attorney, find a non-profit organization or law school clinic willing to take your case, or find
a volunteer attorney. If you cannot afford an attorney, and if no volunteer attorney takes your
case for free, you will have to represent yourself.
There are non-profit organizations and volunteer lawyers that provide free legal
information and assistance for non-citizens at many of the ICE detention centers. These
lawyers may hold “Know Your Rights” sessions or give you written information about the
deportation process. When you get to the ICE detention center, you should be able find out
what information and assistance is available.
If you need more time to find a lawyer, you can ask the immigration judge to postpone the proceedings to give you more time to find a lawyer before your hearing. Usually
the judge will give you at least one or two weeks to look for a lawyer.
Prison Law Office Immigration Manual (March 2012) - 25

What will happen at my immigration court hearing(s)?
The first hearing is called the Master Calendar Hearing. An immigration judge will
be there. There will also be a government lawyer who will be trying to convince the judge to
remove you. If you have a lawyer, he or she should be there also.
At the Master Calendar Hearing, the judge should tell you about your rights and then
ask you if the Notice to Appear contains correct information. One of the rights that you have
is to remain silent and not answer any questions about your immigration status or criminal
record. However, if you tell the judge that the information on the Notice is correct, the judge
will order you removed unless you say that you want to raise a defense to removal. If any
information on the Notice is incorrect, or if you may have a defense to removal, tell the judge
that you want a full hearing. The immigration judge should give you the application forms
for any defenses or requests for relief that you want to make, and set a date for you to file the
forms and other papers with the court.
If you ask for a full hearing, the judge will set your case for an “Individual Calendar
Hearing.” At the Individual Calendar Hearing, you can tell the judge your side of the case
and present evidence to show why you should not be deported. The immigration judge and
the government attorney also may ask you questions. You should prepare for the hearing by
thinking about and writing down the details about your immigration, family and criminal
histories. You should also ask witnesses to attend the hearing and gather as many documents
as possible to support your side of the case. Helpful witnesses and documents might explain
your family ties in the U.S. and/or how your family would face hardships if you left. You
could also present evidence showing you entered or stayed in the U.S. legally, and describing
your education, employment, rehabilitation, community involvement and other positive
activities. Other helpful information would be evidence showing that you would be in danger
if you return to your home country. The documents you present to the court can be official
government documents, news reports or reports from human rights organizations, or written
statements made “under penalty of perjury” by people who know you or your situation. You
should try to get an English translation of any document that is written in another language.
For any hearing, you should tell the Immigration Judge if you do not understand
English. The judge must provide an interpreter for you. If there is no interpreter for your
language, ask that the hearing be postponed until the court can provide an interpreter. If you
have an interpreter, but still do not understand what happened at the hearing, you should tell
the judge that the interpreter was not doing a good job and ask for a new hearing with a good
interpreter. After the hearing you can write a letter to the judge to explain that you did not
understand the hearing, but it is better to tell the judge at the hearing if you do not
understand.

Prison Law Office Immigration Manual (March 2012) - 26

AFTER THE REMOVAL ORDER
How long will it be after the removal order before I am removed?
If the judge orders that you be deported, and you tell the judge you do not want to
appeal, the government can deport you immediately, although it generally has up to 90 and
sometimes 180 days to do so.
If you tell the Immigration Judge that you want to appeal, ICE must wait at least 30
days to give you time to file a Notice of Appeal. If you do file a Notice of Appeal, ICE
cannot remove you from the U.S. until the appeal process is finished. Filing a motion to
reopen or a motion to reconsider your case also will delay your removal until the motion has
been decided.
Before removing you, the government has to get travel documents for you, which can
take a month or more. You can help speed up your removal by asking your consulate to
immediately issue your travel documents. Friends and relatives who have legal status can
also help speed things up by bringing your identity papers to the appropriate Office of
Enforcement and Removal. They should make copies of all documents before giving them to
ICE. Someone without legal status should not go to ICE for you because he or she could be
arrested.
Can I appeal my removal order or get the immigration judge to reopen or reconsider
my case?
There are three different ways to challenge a removal order: an administrative appeal,
a motion to reopen, or a motion to reconsider. If you file an appeal, ICE cannot remove you
from the U.S. until the appeal. However, a motion to reopen or reconsider does not stop ICE
from removing you until either ICE or a court granted a stay of removal. It is also important
to file an appeal or motion to reopen or reconsider if you might want to challenge the
removal order in court. Note that there are strict deadlines for filing these appeals and
motions and that late filings are almost always refused.
The most common challenge to a removal order is an administrative appeal to the
Board of Immigration Appeals (BIA). If the immigration judge orders you removed, he or
she will ask if you want to appeal. If you say yes, the immigration judge will give you the
forms to fill out to file an appeal. Appeals are complicated, and having a lawyer helps. After
filing your appeal, you will receive a written record of your removal hearing and you will
have time to write out in more detail the reasons why the immigration judge’s decision was
incorrect and why you should not be removed from the U.S.
In addition to filing an appeal, you can ask to file a motion to reopen your case if the
immigration judge did not tell you about available defenses or if the law has changed in a
way that helps you or if your situation has changed and you have new evidence about your
case. You can file another type of motion, a motion to reconsider, if the judge’s decision
was based on an error of fact or law. Filing these types of motions is a complicated process
which is best handled by a lawyer. If the immigration judge denies your motion, you can file
Prison Law Office Immigration Manual (March 2012) - 27

an appeal of that denial to the BIA, using the same process as for an appeal from a removal
order.
If the BIA denies my appeal(s), can I challenge the removal order in court?
If the BIA denies your appeal or appeals, you might be able to take your case to the
U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over ICE and immigration
judges in California. To do this, you have to file a Petition for Review with the Ninth Circuit
in San Francisco (P.O. Box 193939, San Francisco, CA, 94119-3939) within 30 days of the
BIA’s decision. Your petition can be a simple document giving your name and alien
registration number and stating that you are detained in ICE custody, that you are appealing
from a decision of the BIA, and giving the date of the BIA decision. You must attach a copy
of the BIA order being challenged. To stop ICE from removing you before the court can take
any action on your petition, you must also ask for a temporary stay of the removal order. The
stay will be in effect at least until the court can consider ICE’s opposition. You must either
pay a filing fee or request for proceed without paying the fee (called “in forma pauperis”
status). The court will send you an information packet for immigration cases, which is also
available at www.ca9.uscourts.gov/www.ca9.uscourts.gov/. The court’s website also
includes a detailed outline of immigration law.
The rules for an immigration case in the Ninth Circuit are complicated, and it is a
good idea to get a lawyer if you can. Courts cannot review discretionary immigration
decisions such as those regarding detention, voluntary departure, and most forms of relief
from removal. However, the court still has the power to review any cases that raise questions
of constitutional law. Courts can also review factual determinations (such as whether a
person actually is a noncitizen or was actually convicted of the criminal offense) and legal
determinations such as whether the offense was an aggravated felony, crime of moral
turpitude or removable offense. Review is also permitted where a person has been denied a
form of relief from removal that is mandatory and not subject to the immigration judge’s
discretion (such as deferral of removal under CAT).
Can I request to be sent to a country other than my home country?
If you have the right to live in more than one country (for example, you have dual
citizenship), name the country where you want to live. If you want to go to a country where
you are not a citizen, you will need to have that country’s permission. Usually, you need to
apply to the Embassy or Consulate of that country for permission; it can be difficult to get
accepted by another country, especially if you have a criminal record.
What if no country will take me? Will I have to stay in detention if my removal is
delayed?
The government generally should remove you from the U.S within 90 days after a
removal order becomes final. After 90 days, the government must review your case and may
release you from detention while you are awaiting removal. If you are kept in detention at
that point, then six months following your removal order, ICE must consider whether to keep
Prison Law Office Immigration Manual (March 2012) - 28

you in detention or release you on parole. Note that these timelines do not start running if
you appeal your immigration case in court and the court grants a stay of removal.
ICE must consider releasing you from detention if your removal is not “reasonably
foreseeable” – for example, because no country is likely to agree to take you. However, ICE
can keep you in detention if you refuse or fail to assist with the government’s efforts to
remove you. For example, you must cooperate with immigration officials in getting travel
documents for return to your country, such as giving them any identification information in
your or your family’s possession. ICE staff may also be able to detain you longer if they
think you are a flight risk or a danger to the community because you are likely to commit
more crimes.
If you think you are entitled to be released from detention, you can write to the local
field Office of Enforcement and Removal (ERO) and request your release. If you are not
released by six months after your final removal order, you can also write to ICE headquarters
in Washington, D.C., asking for release. You should explain where you would be living if
you were released, whether you have a job offer or your family and friends would support
you, why you are not a danger to the community, and why you will not miss any immigration
appointments.
The US Supreme Court has held indefinite detention to be unconstitutional. If you
are detained beyond 6 months, you might consider challenging the legality of your detention
by filing a petition for a writ of habeas corpus in federal court.
Can I ever come back to the United States after I am removed?
If you are removed based on an aggravated felony, you can probably never return
legally to the U.S. After being removed for other reasons, you must wait either 5 or 10 years
(depending on your case factors) before you may try to return to the U.S. legally. After a
second removal order, the wait is 20 years. You can ask immigration officials for permission
to re-enter sooner, but your request may be denied.
What will happen if I come back to the United States without permission after being
removed?
After you have been removed from the U.S., federal law makes it a felony offense for
you to re-enter the country without getting the U.S. government’s approval.
If you commit an illegal re-entry, after removal for a felony conviction, the
punishment can be severe. For a non-aggravated felony, or after three or more misdemeanor
convictions for drug-related crimes or crimes against people, you can be subject to
imprisonment for up to 10 years. If you re-enter the country after an aggravated felony
conviction, you can be imprisoned for up to 20 years. You might get an even longer sentence
if you have been removed after certain kinds of incarceration or if you are deemed to be
associated with terrorist groups or activities.

Prison Law Office Immigration Manual (March 2012) - 29

APPENDICES:
The Appendices attached to this Manual are excerpts from Deportation 101: A Community
Resource on Anti-deportation Education and Organizing, which was prepared by Detention
Watch Network, Families for Freedom, Immigrant Defense Project, and the National
Immigration Project of the National Lawyers Guild. The full Deportation 101 manual can be
downloaded (in English or Spanish) at www.familiesforfreedom.org or at
www.immigrantdefenseproject.org.

1.

Deportation Map

2.

Immigration in Jail: tips for immigration interviews/ immigration detainers

3.

Immigration in Prison: information on “IRP” in-prison deportation proceedings

4.

Immigration Consequences of Crime Summary Checklist and
Suggested Approaches for Representing a Noncitizen in a Criminal Case

Prison Law Office Immigration Manual (March 2012) - 30

DEPORTATION MAP
ICE Deportation and
Detention
Immigration & Customs
Enforcement (ICE) decides
to initiate deportation
proceeding and decides
whether to detain an
immigrant (in a county jail,
federal detention center,
or private prison anywhere
in the country). ICE issues
a Notice to Appear that
lists immigration charges
and holds immigrant until
s/he is granted bond, is
ordered released,
or deported.

Immigration Judge (IJ)
Bond
Hearing

Master
Calendar

Individual
Hearing

If someone
is bond
eligible, the
judge can
set a bond
amount.

The judge
decides
deportability,
relief
eligibility, and
may order
release or
removal.

The judge
hears
applications
for relief and
then may
order release
or removal.

MAP KEY
DEPARTMENT
OF
HOMELAND
SECURITY

DEPARTMENT
OF
JUSTICE

JUDICIARY
BRANCH
COURTS

The BIA reviews appeals
of IJ decisions. Appeals
must be filed within
30 days of IJ decision.
The BIA also issues final
orders of deportation.

Federal District Court

Deportation

ICE

Board of
Immigration
Appeals (BIA)

If an immigrant has a final
administrative order of
deportation and no stay of
deportation, ICE may deport
him/her. Consulates from an
individual’s home country
usually must first issue a
travel document
before someone
is deported.

Country of Origin
Each country deals with
deported individuals differently.
Some governments regularly
detain and monitor them,
and there have been reported
instances of torture. Homelessness and unemployment are
common among individuals
who are deported.

24 DEPORTATION 101 Revised December 2010

This court can hear very
limited cases relating
to immigration, namely
writ of habeas corpus
petitions challenging
detention. In most cases,
the court no longer can
hear petitions challenging removal orders.

Circuit Court of
Appeals
This court reviews
appeals of removal
orders by way of
petitions for review.
Petitions for review
must be filed within 30
days of a BIA decision.
The court also reviews
decisions made in the
federal District Court.

US Supreme Court
The Supreme Court
reviews Court of
Appeals decisions.
It chooses to accept a
very limited number
of cases.

IMMIGRATION IN JAIL
Immigration and Customs Enforcement (ICE) increasingly has a presence at local jails. Many times they
will try to interview you before they
lodge a detainer (or immigration
“hold”) against you.

Tips during Immigration Interviews
While you are at a local jail, you may be visited by a federal
immigration agent, typically from ICE. The agent may ask
you questions in order to determine whether you might be
deportable. These questions may include your name, country of birth, citizenship, immigration status, age, parents’
citizenship, and prior convictions. This information will be
used to help deport you! If you think you are being questioned by immigration agents or asked immigration information, follow 4 simple rules:
1. Don’t say anything
Do not answer ANY question – not even your name,
country of origin, or immigration status. Immigration
agents may threaten you with jail or deportation if you
do not answer questions. They may tell you that if you
answer, everything will be fine. Do not be fooled. Ask for
the agent’s identification, like a business card or badge.
Be persistent. Record the name and agency of the person
talking to you.
2. Don’t sign anything
If the agent ask for your signature, ask for a copy of the
papers but do NOT sign. Show the papers to an immigration expert or your attorney.
3. Don’t lie
Say nothing or say, “I need to speak with a lawyer first.”
You can be criminally prosecuted for lying (for example,
about your birthplace).
4. Ask to speak with your attorney
Ask your attorney for a letter stating that s/he does not
permit immigration agents to interview you. Give a copy
of this letter to the Immigration agent. If you do not
have an attorney, say that you want to find one first. If
the agent keeps pushing you to answer questions, just
repeat, “I want to talk to an attorney first. I want to stop
this interview now.” Then ask to be sent back to your cell.

Immigration Detainer
What is an Immigration Detainer?
At any point during your time in jail, ICE may place a
detainer or “immigration hold” on you. The detainer is
the primary tool used by ICE to facilitate transfers of
immigrants from criminal to ICE custody and deportation. A detainer is an ICE request – NOT an order – to the
criminal justice agency (such as a jail or prison) to notify
ICE before releasing someone.
The detainer, which is issued on a Form I-247, means that
when the criminal system no longer has a right to jail you
– for example, because you are granted bail, are acquitted, or finish your sentence – the local jail or prison may
decide to keep you in custody to give ICE an opportunity
to pick you up. This hold can prevent you from participating in some programs and getting some privileges
(like work release). It can also result in high bail or no bail
getting set.
Who is at Risk of an Immigration Detainer?
The government may place a detainer on a noncitizen in
government custody who is inadmissible or deportable. This
includes:

•• Absconders – people with old orders of deportation/
removal.

•• Out-of-status immigrants – this includes people
who came across the border without any papers,
people who overstayed their visas, people who lost
their asylum or adjustment hearings, and even previously undocumented people who are now applying to
adjust their status.

•• Lawful permanent residents (green card holders)
with convictions – even LPRs who have never been
charged with being deportable can get immigration
holds if they have been convicted of a deportable
offense!
NOTE: 	if you are an absconder, a green card holder
with a past deportable offense, or are out-ofstatus, your immigration hold will not be lifted
even if your current criminal case is dismissed.
However, in most cases, if you are in status and
have no final convictions, you should not have
an immigration detainer.

Section 3: ICE Enforcement 65

What are the limits of the detainer?

•• A detainer is alive for only 48 hours after it is triggered
(excluding weekends and holidays). So if you are in
criminal custody after a lawful arrest, the detainer is triggered when the state has no other reason to hold you.
This means the detainer can be triggered when you post
bail or are ordered released on recognizance; when the
charges are dismissed; when you win your case and get
ordered released; or when you complete your sentence.

•• ICE detainers should not be placed on noncitizens or
legal permanent residents who are not deportable.

•• A detainer does NOT mean that local police or local jails
can hold someone for an undetermined period of time.
What kind of proof does ICE rely on to lodge a
detainer?

•• Not much. ICE usually uses place of birth information
given by jails or in booking sheets as the basis for lodging
a detainer. As a result, ICE does make mistakes. They mistakenly place detainers on US citizens or legal permanent
residents who are not deportable. Usually, ICE gets information about alienage from interviewing the noncitizen.
What can I do if there’s a detainer against me?

•• If the government’s only basis to hold you is the conviction, then you may want to appeal your conviction.

•• After 48 hours, the detainer expires. At that point:
•• You have the right to be released. If you have tried
but not been allowed to pay criminal bail, you can try
again to pay bail. But be aware that if you pay bail and
are later deported, you might forfeit the bail money.

•• You can contact your criminal defense lawyer to let
him/her know that you should be released. Have your
criminal lawyer check to see if you are deportable. If
you are not, your criminal defense lawyer can help you
make sure that ICE lifts the detainer. You can request
the Field Office Director of the nearest ICE Field Office

66 DEPORTATION 101 Revised December 2010

to lift a detainer. Special attention will be paid to cases
where people allege that they are an LPR or a US
citizen.

•• You can file a letter with the jail advising them that
they must comply with the 48 hour rule. (A sample
of such a letter is in the appendix). You can also file a
grievance with the jail.

•• Because you are being held illegally after the 48 hours
expire (8 C.F.R. 287.7), you can file for monetary damages for your illegal imprisonment against the jail.

•• You can file a state or federal writ of habeas corpus
against the facility holding you to get released.

•• Be aware that sometimes, this may just result in
ICE finally coming to take you into custody.

* ALERT! In some cases it is preferable to
remain in criminal custody with an immigration
detainer than to be transferred to immigrant
detention right away. If you qualify for relief,
being in criminal custody sometimes provides
valuable time to secure representation, collect key
documents, and develop favorable factors before
being transferred to an immigration facility that
may be far away. You should weigh these factors
when deciding to file a state habeas challenging a
hold longer than 48 hours.
If you believe your jail routinely violates the 48 hour rule,
contact the National Immigration Project of the National
Lawyers Guild or the local American Civil Liberties Union in
your area.

IMMIGRATION IN PRISON
Objecting to Video Hearings
You can object to a video hearing. You should object the first
time a video hearing is scheduled and again at the beginning of the actual video hearing. Immigration judges will
probably move forward with the video hearings despite any
objections, but an objection “on the record” ensures that you
might later be able to challenge the fairness of the hearing.
Some issues to cite when objecting to the video hearings
include (but are not limited to):

•• Video conferences serve to further isolate detainees
already held in distant prisons, detached from family,
community, legal, and other support.
Immigration and Customs Enforcement (ICE) focuses their
effort on trying to deport people who end up in prison.
Generally, people serving more than one year for a crime
are in prison. Currently, ICE screens people in every state
and federal prison through the Criminal Alien Program to
identify immigrants who might be deportable. ICE agents
frequently conduct interviews with immigrants in prison,
often through video teleconferencing. They then initiate
deportation proceedings against these noncitizens while
they are still serving their criminal sentence.

What is the Institutional Removal Program?

•• There are many inherent problems with testimony
given on camera, including: difficulties presenting and
examining evidence, communication difficulties, the
general unfamiliarity of all parties to interacting via
videoconference, and even basic technical problems.

•• Accurate interpretation is difficult enough in person;
interpreting via video-conference creates even more
communication problems.
For more information on IRP and video-hearings, see the
American Immigration Council (formerly AILF) Practice
Advisory, “Objecting to Video Merits Hearings” at:
www.americanimmigrationcouncil.org.

The Institutional Removal Program (IRP) is a nationwide
Department of Homeland Security initiative forcing incarcerated noncitizens into deportation proceedings from
within the very prisons to which they are confined. People
are forced to defend themselves with little access to legal
information or legal assistance.
IRP proceedings in many prisons take the form of “video
hearings.” Instead of being in a courtroom, you see a video
camera and television monitor from a room within prison.
As a result, you are isolated from all other parties, including the judge, ICE prosecutor, the interpreter, witnesses, and
sometimes even your own lawyer.

Section 3: ICE Enforcement 67

CHECKLIST: IMMIGRATION CONSEQUENCES OF CONVICTIONS

Immigration Consequences of Crimes Summary Checklist *
Immigrant Defense Project
CRIMINAL INADMISSIBILITY GROUNDS
– Will or may prevent a noncitizen from being able to
obtain lawful status in the U.S. May also prevent a
noncitizen who already has lawful status from being able
to return to the U.S. from a trip abroad in the future.
Conviction or admitted commission of a Controlled
Substance Offense, or DHS reason to believe that the
individual is a drug trafficker
Conviction or admitted commission of a Crime
Involving Moral Turpitude (CIMT), which category
includes a broad range of crimes, including:
♦ Crimes with an intent to steal or defraud as an
element (e.g., theft, forgery)
♦ Crimes in which bodily harm is caused or
threatened by an intentional act, or serious bodily
harm is caused or threatened by a reckless act (e.g.,
murder, rape, some manslaughter/assault crimes)
♦ Most sex offenses
Petty Offense Exception – for one CIMT if the client has
no other CIMT + the offense is not punishable >1 year +
does not involve a prison sentence > 6 mos.
Prostitution and Commercialized Vice
Conviction of two or more offenses of any type +
aggregate prison sentence of 5 yrs.
CRIMINAL BARS ON 212(h) WAIVER OF
CRIMINAL INADMISSIBILITY based on extreme
hardship to USC or LPR spouse, parent, son or daughter
 Conviction or admitted commission of a Controlled
Substance Offense other than a single offense of
simple possession of 30 g or less of marijuana
 Conviction or admitted commission of a violent or
dangerous crime will presumptively bar 212(h) relief
 In the case of an LPR, conviction of an Aggravated
Felony [see Criminal Deportation Gds], or any
Criminal Inadmissibility if removal proceedings
initiated before 7 yrs of lawful residence in U.S. 
CRIMINAL BARS ON ASYLUM based on wellfounded fear of persecution in country of removal OR
WITHHOLDING OF REMOVAL based on threat to
life or freedom in country of removal
Conviction of a “Particularly Serious Crime” (PSC),
including the following:
 Aggravated Felony [see Criminal Deportation Gds]
♦ All aggravated felonies will bar asylum
♦ Aggravated felonies with aggregate 5 years
sentence of imprisonment will bar withholding
♦ Aggravated felonies involving unlawful trafficking
in controlled substances will presumptively bar
withholding of removal
 Violent or dangerous crime will presumptively bar
asylum
 Other PSCs – no statutory definition; see case law
CRIMINAL BARS ON 209(c) WAIVER OF
CRIMINAL INADMISSIBILITY based on
humanitarian purposes, family unity, or public interest
(only for persons who have asylum or refugee status)
 DHS reason to believe that the individual is a drug
trafficker
 Conviction or commission of a violent or dangerous
crime will presumptively bar 209(c) relief

CRIMINAL DEPORTATION GROUNDS
– Will or may result in deportation of a noncitizen who
already has lawful status, such as a lawful permanent
resident (LPR) green card holder.
Conviction of a Controlled Substance Offense
EXCEPT a single offense of simple possession of 30g or
less of marijuana
Conviction of a Crime Involving Moral Turpitude
(CIMT) [see Criminal Inadmissibility Gds]
 One CIMT committed within 5 years of admission
into the US and for which a prison sentence of 1 year
or longer may be imposed
 Two CIMTs committed at any time “not arising out of
a single scheme”
Conviction of a Firearm or Destructive Device
Offense
Conviction of a Crime of Domestic Violence, Crime
Against Children, Stalking, or Violation of
Protection Order (criminal or civil)
Conviction of an Aggravated Felony
 Consequences, in addition to deportability:
♦ Ineligibility for most waivers of removal
♦ Permanent inadmissibility after removal
♦ Enhanced prison sentence for illegal reentry
 Crimes included, probably even if not a felony:
♦ Murder
♦ Rape
♦ Sexual Abuse of a Minor
♦ Drug Trafficking (including most sale or intent to
sell offenses, but also including possession of
any amount of flunitrazepam and possibly certain
second or subsequent possession offenses where the
criminal court makes a finding of recidivism)
♦ Firearm Trafficking
♦ Crime of Violence + at least 1 year prison
sentence **
♦ Theft or Burglary + at least 1 year prison
sentence **
♦ Fraud or tax evasion + loss to victim(s) >10, 000
♦ Prostitution business offenses
♦ Commercial bribery, counterfeiting, or forgery +
at least 1 year prison sentence **
♦ Obstruction of justice or perjury + at least 1 year
prison sentence **
♦ Various federal offenses and possibly state
analogues (money laundering, various federal
firearms offenses, alien smuggling, failure to register
as sex offender, etc.)
♦ Other offenses listed at 8 USC 1101(a)(43)
♦ Attempt or conspiracy to commit any of the above

CRIMINAL BARS ON LPR CANCELLATION OF
REMOVAL based on LPR status of 5 yrs or more and
continuous residence in U.S. for 7 yrs after admission
(only for persons who have LPR status)
 Conviction of an Aggravated Felony
 Offense triggering removability referred to in
Criminal Inadmissibility Grounds if committed
before 7 yrs of continuous residence in U.S.

CRIMINAL BARS ON
OBTAINING U.S. CITIZENSHIP
– Will prevent an LPR from being
able to obtain U.S. citizenship.
Conviction or admission of the
following crimes bars the finding of
good moral character required for
citizenship for up to 5 years:
 Controlled Substance Offense
(unless single offense of simple
possession of 30g or less of
marijuana)
 Crime Involving Moral
Turpitude (unless single CIMT
and the offense in not punishable >
1 year (e.g., in New York, not a
felony) + does not involve a prison
sentence > 6 months)
 2 or more offenses of any type +
aggregate prison sentence of 5
years
 2 gambling offenses
 Confinement to a jail for an
aggregate period of 180 days
Conviction of an Aggravated Felony
on or after Nov. 29, 1990 (and
conviction of murder at any time)
permanently bars the finding of moral
character required for citizenship
“CONVICTION” as defined for
immigration purposes
A formal judgment of guilt of the
noncitizen entered by a court,
OR, if adjudication of guilt has been
withheld, where:
(i) A judge or jury has found the
noncitizen guilty or the noncitizen
has entered a plea of guilty or nolo
contedere 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 noncitizen’s liberty to be
imposed
THUS:
 A court-ordered drug treatment or
domestic violence counseling
alternative to incarceration
disposition IS a conviction for
immigration purposes if a guilty
plea is taken (even if the guilty
plea is or might later be vacated)
 A deferred adjudication without a
guilty plea IS NOT a conviction
 NOTE: A youthful offender
adjudication IS NOT a conviction
if analogous to a federal juvenile
delinquency adjudication

*For more comprehensive legal resources, visit IDP at www.immigrantdefenseproject.org or call 212-725-6422 for individual
. . case support.
** The “at least 1 year” prison sentence requirement includes a suspended prison sentence of 1 year or more.
© 2010 Immigrant Defense Project

Section 3: ICE Enforcement 69

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 immigration consequences for their noncitizen clients. The selected approach may depend very much on the particular immigration 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 Immigrant 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:

➢ First and foremost, try to avoid a disposition that triggers
deportability (§3.2.B)
➢ Second, try to avoid a disposition that triggers
inadmissibility if your client was arrested returning from
a trip abroad or if your client may travel abroad in the
future (§§3.2.C and E(1)).
➢ If you cannot avoid deportability or inadmissibility, but
your client has resided in the United States for more
than seven years (or, in some cases, will have seven
years before being placed in removal proceedings), try
at least to avoid conviction of an “aggravated felony.”
This may preserve possible eligibility for either the relief
of cancellation of removal or the so-called 212(h) waiver
of inadmissibility (§§3.2.D(1) and (2)).
➢ If you cannot do that, but your client’s life or freedom
would be threatened if removed, try to avoid conviction
of a “particularly serious crime” in order to preserve
possible eligibility for the relief of withholding of
removal (§3.4.C(2)).
➢ If your client will be able to avoid removal, your client
may also wish that you seek a disposition of the criminal
case that will not bar the finding of good moral
character necessary for citizenship (§3.2.E(2)).

2. If your client is a REFUGEE or PERSON GRANTED ASYLUM:

➢ First and foremost, try to avoid a disposition that triggers
inadmissibility (§§3.3.B and D(1)).
➢ If you cannot do that, but your client has been
physically present in the United States for at least one
year, try at least to avoid a disposition relating to illicit
trafficking in drugs or a violent or dangerous crime in
order to preserve eligibility for the so-called 209(c) waiver
of inadmissibility for refugees and asylees (§3.3.D(1)).
➢ If you cannot do that, but your client’s life or freedom
would be threatened if removed, try to avoid a
conviction of a “particularly serious crime” in order to
preserve eligibility for the relief of withholding of
removal (§3.3.D(2)).

3. If your client is ANY OTHER NONCITIZEN who might
be eligible now or in the future for LPR status, asylum,
or other relief:

IF your client has some prospect of becoming a lawful
permanent resident based on having a U.S. citizen or lawful permanent resident spouse, parent, or child, or having
an employer sponsor; being in foster care status; or being a
national of a certain designated country:
➢ First and foremost, try to avoid a disposition that triggers
inadmissibility (§3.4.B(1)).
➢ If you cannot do that, but your client may be able to
show extreme hardship to a citizen or lawful resident
spouse, parent, or child, try at least to avoid a controlled
substance disposition to preserve possible eligibility for
the so-called 212(h) waiver of inadmissibility
(§§3.4.B(2),(3) and(4)).
➢ If you cannot avoid inadmissibility but your client
happens to be a national of Cambodia, Estonia,
Hungary, Laos, Latvia, Lithuania, Poland, the former
Soviet Union, or Vietnam and eligible for special relief
for certain such nationals, try to avoid a disposition as
an illicit trafficker in drugs in order to preserve possible
eligibility for a special waiver of inadmissibility for such
individuals (§3.4.B(5)).
IF your client has a fear of persecution in the country of
removal, or is a national of a certain designated country to
which the United States has a temporary policy of not
removing individuals based on conditions in that country:
➢ First and foremost, try to avoid any disposition that
might constitute conviction of a “particularly serious
crime” (deemed here to include any aggravated felony),
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’s life or freedom
would be threatened if removed, try to avoid conviction
of a “particularly serious crime” (deemed here to include
an aggravated felony with a prison sentence of at least
five years), or an aggravated felony involving unlawful
trafficking in a controlled substance (regardless of
sentence), in order to preserve eligibility for the relief of
withholding of removal (§3.4.C(2)).
➢ In addition, if your client is a national of any country for
which the United States has a temporary policy of not
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, Representing Immigrant Defendants in New York (4th ed., 2006).

70 DEPORTATION 101 Revised December 2010

See reverse ➤

 

 

CLN Subscribe Now Ad 450x600
CLN Subscribe Now Ad
Prison Phone Justice Campaign