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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