Safe Havens

Of the 51 different grounds of deportation listed in Appendix A, 26 of them are based on status or “conduct,” rather than upon a criminal conviction or other finding of a court or administrative tribunal.  (For simplicity, the grounds of deportation that are triggered by a change in a noncitizen’s immigration status are included as “conduct-based grounds of deportation,” to distinguish them from the grounds that are based on a criminal conviction or other finding of a court or administrative tribunal, since they are treated the same as other conduct-based grounds.)

            These grounds of deportation are somewhat more difficult for the immigration authorities to establish in deportation proceedings, since they may be contested factually during a removal hearing by the calling of witnesses.  For example, the government may introduce evidence that a noncitizen engaged in certain conduct that falls within a conduct-based ground of deportation and contend the noncitizen is therefore deportable and must be removed from the United States.  The noncitizen has a due process right to defend him- or herself against this charge, and may introduce (a) testimony of 15 character witnesses that s/he has a character trait of truthfulness, (b) the noncitizen’s own testimony that s/he did not engage in the conduct alleged to constitute a ground of deportation, and (c) testimony of 15 eyewitnesses to the effect that s/he did not in fact engage in that conduct.  This ability to contest the facts in immigration court can make a removal hearing concerning a conduct-based deportation ground much more time-consuming and expensive than a removal hearing in which a certified record of conviction conclusively establishes a conviction-based ground of deportation.  When a vigorous defense blossoms into a contested hearing during which the testimony of a number of witnesses will be offered, it is not uncommon for the immigration authorities to abandon a conduct-based ground of deportation.