Overview

One of the most challenging obstacles for a noncitizen is seeking release from immigration detention on bond after having been placed in removal proceedings following a conviction for a crime that made him or her inadmissible or deportable or both. There are several types of convictions that make a noncitizen either inadmissible or deportable or both with convictions for a crime involving moral turpitude or aggravated felony making the situation most complicated of all. A conviction of the last two varieties often renders a noncitizen’s detention mandatory under INA §236(c). Hence, in order to be released on bond, it becomes paramount for the noncitizen to challenge the applicability of the INA §236(c) to the case at hand. It is very difficult if not impossible to mount a proper challenge of this kind successfully without thorough understanding of the law as it settled after the prominent U.S. Supreme Court decision in Demore v. Kim 538 U.S. 510 (2003) [see article].

Immigration Attorney

Challenging the INA §236(c) requires dexterity in presenting a case both in writing as well as orally. In addition to presenting the issue before the district director, one has to be prepared for orally advocating the challenge before an Immigration Judge and/or filing a habeas corpus petition in U.S. District Court of relevant jurisdiction. Hence, engaging a capable immigration attorney is a very good idea.

Joseph Hearing

Joseph Hearing refers to a bond hearing before an immigration judge in a situation when the court is called upon to make a ruling whether INA §236(c) is applicable to the legal permanent resident (LPR) given his or her criminal conviction(s). This is where the Lawful Permanent Resident (LPR) seeks to gain release form ICE detention on bond. The Department of Homeland Security, who represent the U.S. Government in such proceedings, will seek to prevent release on bond, so it is essential to convince the Immigration Judge that there is a strong case for the INA §236(c) challenge.The proceeding took its name after the Board of Immigration Appeals precedent decision in the Matter of Joseph, 22 I&N Dec. 660 (BIA 1999) [PDF version].

Depending on the charge(s) against the alien, preparation for the Joseph Hearing can be rather extensive and time consuming. The following questions establish a guideline that can be used.

  • Can the crime be charged in more than one way?
    • Review the state’s statute for the criminal charge. The elements that make up the offense may vary depending on interpretation. Check to see if there is a crime that may be charged in numerous ways. This information can help develop an argument for the case.
  • Is the crime equivalent in terms of State and Federal definitions?
    • It is imperative to analyze the federal interpretations of a crime and contrast them with the state interpretations.
  • Can the argument be stated in a brief or memorandum?
    • Especially when the case involves state and federal interpretations of the charges, it is essential to have a written argument prepared. This will help structure the argument into an effective and cohesive presentation.

Challenging Crimes Involving Moral Turpitude (CIMT)

A crime involving moral turpitude can be classified into two categories:

1. A crime of moral turpitude that carries a prison sentence of 1 year or more;
2. Two crimes of moral turpitude, regardless any prison sentence.

Because of the ability to classify these crimes into two categories, the opportunity to challenge INA §236(c) arises.For example, for a crime which involves CIMT, one can argue that the statute, interpreted comprehensively, does not necessarily incriminate behavior that results in a classification of a CIMT. Furthermore, the determination of a CIMT depends highly on the state of mind of the LPR at the time the crime took place.

State of mind

This can be further broken down to approaches regarding the state of mind.

If the state of mind is one that involved deliberation, such as an intent or knowledge, it is advisable to emphasize the conduct stated in the statute rather than the state of mind to try and argue that the conduct so incriminated must have not involved such state of mind. If the state of mind did not involve deliberation, such as Negligence or Strict Liability, there is no need to focus on the conduct.

If the crime as a whole does not involve moral turpitude, it would be beneficial to argue that the complaint or charge is irrelevant. A benefit of this is that it precludes any behavior which can be detrimental to the client or the case to become part of the consideration.

When challenging a CIMT, it is also a good idea to determine if the statute is divisible. Divisible refers to the conviction statute that contains several provisions some of which would involve CIMT, while the other or others would not. In such a situation one would seek to establish that some part of the statue involves moral turpitude but other behavior described in the same statute does not and that the case at hand involves behavior that does not. Before doing so, one should make sure to review previous decisions of the U.S. Circuit Court of Appeals holding jurisdiction over the geographic area when the immigration judge presides as legal analysis may differ dramatically, depending on the Court’s presidents. In doing so, it is important to have the analysis concluded at the point where the statute is deemed divisible so that the court would not need to reach out to parts of the criminal record which might be prejudicial or release information, which might prove to be harmful to the case.