Being Careful What You Wish For: Divisible Statutes – Identifying a Non-Deportable Solution to a Non-citizen’s Criminal Problem

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Campbell Law Review


When a non-citizen is arrested, it may be possible for her to underestimate the full consequences of a criminal charge. The primary concern of the non-citizen is when she may be released from custody in order to resume family obligations or return to work before compromising her standing with an employer. With an immediate need for release from custody, a quick plea to an offense may be an attractive option. The non-citizen may not be aware of the immigration consequences of taking an imprudent plea, the ramifications of which could far outweigh the inconvenience of additional time in jail following an arrest. Many criminal convictions lead to the institution of removal proceedings against the non-citizen with the end result being that she loses her right to remain in the United States. Depending on the offense and the duration of the non-citizen's residence in the United States, a waiver may be available to "pardon" the deportable offense and restore status in the United States. However, in many cases, the nature of the criminal offense renders the non-citizen deportable as an "aggravated felon," from which little relief is available. Alternatively, the non-citizen may not have lived in the United States long enough to qualify for a waiver. Legislation has increased the number of crimes classified as aggravated felonies, and investment in national databases has led to greater apprehension of non-citizens with criminal convictions. Consequently, the number of non-citizens ordered deported from the United States based on convictions for aggravated felonies has also risen, from 10,303 in 1992 to at least 23,065 in 2006.2 This article addresses recent case examples involving convictions that, on their face, seemed to provide an adequate basis of deportability. Convictions under the criminal statutes addressed herein generally appear to encompass deportable offenses but have been held to be insufficient to assure deportability. Therefore, these examples can serve as templates for analysis of other statutes.

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Publication Date

Winter 2007