Contributed by Aaron Hall, Senior Attorney
Noncitizens
with certain criminal convictions may be inadmissible to the U.S., deportable
from the U.S., or unable to obtain U.S. citizenship through naturalization.
The
categories of criminal convictions which cause immigration problems seem to
have been slowly growing over the years as the Department of Homeland Security
(DHS) argued that more and more crimes fit into these categories. The categories of convictions have not
necessarily been growing because of new laws written by Congress, but often
because immigration courts have been interpreting existing laws more and more
broadly and more and more harshly.
Two U.S.
Supreme Court decisions from earlier this year, Descamps
v. United States, and Moncrieffe v.
Holder, may have been just what were needed to stop the slow and
disturbing creep. In Descamps, the Supreme Court reaffirmed
that in most cases, the government cannot go beyond the language of the statute
of conviction to try to prove that the conviction involved something worse than
the words used in the statute itself.
In Moncrieffe, the Supreme Court ruled that
a Georgia offense for giving away a small amount of marijuana for no money
could not be considered an aggravated felony for immigration law. Like in Descamps,
the Moncrieffe decision means that
courts must stick strictly to the words of the statute of conviction in
applying what is known as “the categorical approach.” In effect, courts and immigration authorities
should not be trying to find out what actually happened to get a conviction,
but should just be looking at the language of the law that the defendant was convicted
of violating.
Though
these decisions are still new and the full effect on immigration law is yet to
be seen, they undoubtedly open up new lines of argument for many noncitizens
with certain criminal convictions who are fighting deportation charges or
applying for immigration benefits.
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