Class 11: Criminal Convictions
Criminal convictions have long been grounds for exclusion and deportation. But the breadth of those grounds has expanded dramatically in recent decades. Over the same time, immigration enforcement efforts have become ever-more focused on apprehending and deporting noncitizens with convictions or other interactions with the criminal justice system.
Most criminal law in the United States is created and enforced by states and local governments—not the federal government. The diversity of state and local criminal law raises an important question: how do we decide which state and local convictions render a person deportable? Enumerating in the INA the deportable criminal offenses for every single state has never been considered a viable option. As such immigration law had to develop an alternative approach.
Reading:
Overview (679-87)
The categorical approach (687-702)
Interpretative tools and constitutional avoidance (650-51 and Dimaya)
As you read, considering the following questions:
How do the criminal grounds of inadmissibility and deportability compare to one another? Are the grounds of deportability broader (encompassing more conduct) or narrower? Can you think of arguments in favor of having the criminal grounds of deportability be broader (or narrower) than the grounds of inadmissibility?
At least one criminal ground of deportability, INA § 237(a)(2)(A)(i), contains a time limit: the “crime involving moral turpitude” must be committed within five years of admission in order to render the noncitizen deportable. Why might Congress impose such a time limit?
The categorical approach described in the cases focuses on the crime for which the person was convicted, rather than on the conduct the person engaged in. Why would immigration courts choose to focus on convictions rather than conduct?
Under the categorical approach, how do we figure out exactly which state crime a noncitizen was convicted of?
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