Safe Havens

The procedure for determining deportability of a conviction, under a divisible statute, is as follows:

            1.  Identify the statute of conviction.

            2.  Identify the different offenses that are prohibited by the divisible statute of conviction.  List these offenses as “sets of elements” to be examined.

            3.  Determine whether the minimum conduct necessary to sustain a conviction under each separate set of elements is sufficient to trigger a ground of deportation.  See § 5.56, supra.

            4.  If a conviction under each and every set of elements would trigger deportation, then the noncitizen is deportable on the basis of the conviction.  Go to Step 12.

            5.  If no conviction under any set of elements can trigger deportation, because some minimum conduct falls outside the ground of deportation under each set, then the noncitizen is not deportable.  See § 6.19, supra.

            6.  If the minimum conduct under one or more of the sets of elements triggers deportation, while one or more do not, the immigration courts and federal courts will be free to examine the record of conviction to determine which offense (set of elements) was the offense of conviction.

7.  The courts may not go behind the record of conviction to ascertain the facts of the case, in order to determine whether the conduct and intent as committed by the noncitizen bring the conviction within a ground of deportation.[24]  See § § 6.21-6.22, infra.

8.  It is therefore necessary to construct a record of conviction that will not establish the conviction as falling within the ground of deportation.  See § 6.23, infra.

9.  The charge to which a plea is entered must be written so as not to bring the conviction within the ground of deportation.  See § 6.24, infra.

            10.  The defendant must not make a plea or an admission, either in writing in a plea agreement or orally during the plea hearing, that brings the conviction within a ground of deportation.  See § § 6.25-6.36, infra.

            11.  The sentence and judgment must not bring the conviction within the ground of deportation.  See § § 6.36-6.40, infra.

            12.  Counsel may also wish to seek an alternative plea to a different conviction that is safe from an immigration standpoint.

[24] Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980) (“such collateral attacks . . . could not reasonably provide a fair forum for ascertaining the truth of the assertion.  The proceeding would be conducted in a different court, and a different country, geographically and temporally far removed from the locus of the crime”); Castle v. INS, 541 F.2d 1064, 1066 n.5 (4th Cir. 1976) (Congress did not intend that the INS or courts undertake the challenging task of relitigating the facts of the offense of conviction); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. den., 405 U.S. 997, 92 S.Ct. 1260 (1972); Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929); Zgodda v. Holland, 184 F.Supp. 847 (E.D. Pa. 1960); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989); Matter of Santoro, 11 I. & N. Dec. 607, 608 (BIA 1966) (it has “long ago been settled . . . that the immigration authorities may not go behind the record of conviction to examine the circumstances under which the crime was committed, and the determination of whether the crime involves moral turpitude must be made on the basis of the statutory definition of the crime and the record of conviction” (citations omitted); conviction of mayhem by biting wife constituted crime involving moral turpitude).  Cf. Matter of T, 2 I. & N. Dec. 22 (AG 1944).