Deportation Flashcards
Deportation is __
the power to remove those already admitted
Exclusion is ___
removing those not admitted
Deportation has ___ than inadmissibility
narrower
INA 237 unlike INA 212 explicitly permits __ to remove consequences
pardons
Unlike 212, ____ is not enough to deport you need __
admission of crime, actual conviction
Immigration violations that lead to deportability
- visa violations
- smuggling noncitizens
- false claims of citizenship
You can deport LPRs even if ___
already served their sentence
Example of broadness of smuggling of noncitizens
giving cousin money to come with peyote
Most common form of deportation ground is ____ because__
immigration violation, easier to prove
Under the Fleuti doctrine, an LPR that ____ will not be treated as an entry
leaves US for trip brief, causal and innocent
Max time before no longer brief visit under INA
180 days
Fleuti court emphasizes that he is ___
LPR (pushing back on FYT, already here so more protection)
Fleuti entry mattered because ___
in meantime new law had passed making being gay inadmissibility ground but only applies if making entry
Padilla facts
LPR for 40 years pleads guilty to large possession of marijuana on advice of lawyer who said not to worry because had been in country so long
Padilla says defense counsel has duty to __
provide affirmative accurate advice under 6th amendment if the law is clear
Padilla says effective counsel is not just about ____ because ___
avoiding misinformation, don’t want silence even when the law is clear
Padilla court recognized that immigration is ___
different from other collateral consequences (push back on FYT)
Padilla court didn’t reach issue of ___
prejudice
Alito concurrence in Padilla says that __
just have duty to not to provide incorrect info and must say may carry immigration consequences so contact immigration attorney
It is an open question whether attorneys have to plea bargain for __
immigration safe outcomes
Lee held that losing the ability to go to trial ___
is prejudice itself (even if not likely to win)
Deportability and CIMT
within 5 years of admission + convicted of crime for which 1+ year sentence may be imposed
Unlike CIMT, aggravated felonies __
have no time cut off
Ag fels create ___
mandatory removal
___ is irrelevant to most ag fels
Sentencing
Ag fels are ineligible for ___
most relief from removal (including discretionary relief from AG)
Ag fels are __
crime committed anytime after admission defined by the statute
What is the categorical approach
compare elements of state offense to federal category
If a state crime _____ , then it is not a categorical match
encompasses broader swath of conduct than the federal
In Descamps, the CA statute for burglary ____
was more broad (included lawful and unlawful entry) so no imm consequences
Fed offense: Any offense involving theft of fries in a restaurant
State offense: Steal spouses’ fries from plate in diner
Match
Fed offense: Any offense involving theft of fries in a restaurant
State offense: steal spouse’s fries
No (judge can’t see where stole fries and could’ve been elsewhere)
Fed offense: Any offense involving theft of fries in a restaurant
State: Steal or threaten to steal fries in a diner
match only if A and judge can look at criminal record solely to see which one convicted under
The categorical approach does not consider ___
facts of individual conduct
The modified categorical approach applies if ___
clearly dilineated alternatives in state statute (not just any series of things)
What is the realistic probability test
to determine if state statute actually overbroad ask if states actually prosecuting that way
Rationale for categorical approach
- sometimes crime happened years ago
- no mandatory counsel + detained while waiting for removal so hard to gather evidence
- no relitigation of past convictions in mini-trials
First step of categorical approach
Examine federal removal law
- is it generic offense/ what are elements
- no need if removal refers to specific federal law
Second step of categorical approach
examine state statute for minimum conduct for which realistic probability conviction under the statute may occur
Some removal grounds are exempt from categorical approach and instead have __
circumstances specific approach
In cases involving ___ can look at facts
> 10K loss in fraud, less than 30grams marijuana
For domestic violence cases whether ag fel depends on ___
nature of relationship (domestic)
Moncrieffe held that if noncitizen’s conviction for marijuana fails to ____
establish that it involved remuneration or more than small amount of marijuana not an ag fel
Illegal trafficking in controlled substance is a ___ crime
generic
Court elements for illegal trafficking in controlled substance
- proscribe conduct that is offense under CSA
- CSA must proscribe felony punishment for that conduct
Escaping an ag fel only means ___
avoiding mandatory removal (may still be removed)
If grounds for removal not ag fel then __
may seek relief for removal
Mellouli holding
Didn’t trigger removal because state law not confined to federally controlled substances
