Some foreign nationals (Lawful Permanent Residents and non-immigrants) at some point in their life may have made a mistake which results in the Department of Homeland Security (DHS) commencing removal/deportation proceedings before the Immigration Court. Some such mistakes may have related to an act which lead to (1) being charged with having violated a criminal statute and (2) admitting guilt or being found guilty before the criminal court. The resulting conviction may then form the basis for DHS charging the foreign national with removability/deportability for a Crime Involving Moral Turpitude or an Aggravated Felony.
Effective deportation defense requires counsel to carefully analyze the criminal records submitted by DHS to ascertain if in fact DHS has met its burden of proof of demonstrating the foreign national respondent is subject to removability/deportability for a Crime Involving Moral Turpitude or an Aggravated Felony.
In the Eleventh Circuit, DHS is required to establish deportability by "clear, unequivocal, and convincing evidence" consistent with the Supreme Court's ruling in Woodby v. INS, 385 U.S. 276 (1966). In 2005, the Eleventh Circuit - in Jaggernauth, supra at 1352-56 - utilized the Woodby standard ("clear, unequivocal, and convincing evidence") in reversing a removal order where the government failed to prove the respondent was an aggravated felon where the statute of conviction was divisible. Jaggernauth, supra at 1355, quoted the language from Woodby v. INS, supra at 286, used by the Supreme Court to describe the significant burden of the government in deportation/removal proceedings: "[n]o deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true."
The Woodby standard is mandated for cases arising in the Eleventh Circuit pursuant to the Supreme Court's ruling in Jaggernauth, supra at 1355. However, the burden of proof standard found in 8 C.F.R. section 1240.8. is clear and convincing evidence. In Addington v. Texas, 441 U.S. 418, 432 (1979), the Supreme Court in a civil law context defined "unequivocal" as follows: "The term 'unequivocal' taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases." Black's Law Dictionary (Third Edition) defines "clear and convincing evidence" as follows: "Evidence indicating that the thing to be proved is highly probably or reasonably certain."
The type of deportation defense available depends on the nature of the crime and the statute under which the respondent was charged and convicted. Frequently, the starting point will be applying the categorical approach to assess if DHS has met its burden of proof. Under the categorical approach, the criminal statute must be examined to (1) determine the statutory definition of the offense and (2) ascertain if that definition does or does not constitute a Crime Involving Moral Turpitude or an Aggravated Felony. If the statute is divisible - i.e., contains an element which is a ground of deportability and an element which is not - then it is critical to assess under the modified categorical approach if the criminal court records submitted by DHS definitively demonstrate that the respondent was charged and convicted for the statutory element which is a basis for deportability/removability.
If an analysis of the criminal records leads to the conclusion that DHS has not met its burden of proof, then effective deportation defense will involve zealously challenging the charge of removability/deportability.
Daniel B. Sibirskyis Florida Bar Board Certified as an expert in Immigration & Nationality Law.
He is listed in The Best Lawyers in America®.
Daniel B. Sibirsky
Tel. (305) 381-9797