Crimes and Immigration

Criminal and immigration law intersect in numerous instances, and an understanding of the intersections can be crucial in representing noncitizens in immigration proceedings. The law imposes immigration penalties for numerous types of criminal activity, including activity that did not result in a conviction. Immigration law also has its own definitions for terms such as “conviction” and “aggravated felony” which differ significantly from state and federal criminal law.  Penalties under immigration law for criminal activity differ depending on the type of crime, but also on the immigration status and history of the individual immigrant.

Criminal issues often arise in bond hearings for immigration detainees; in cancellation of removal cases, both LPR and non-LPR cancellation; and may come up as well in asylum cases, motions to reopen removal orders, and more.



Articles

Immigration Consequences of Criminal Activity

Congressional Research Service

This report provides an overview of the major immigration consequences of criminal activity. It provides a good starting point for practitioners new to this area.

Webinars

Divisibility of Criminal Statutes and the Modified Categorical Analysis of Immigration Consequences

University of Maryland School of Law Immigration Clinic

When diving deeper into the “categorical” analysis, you’ll need to learn more about “modified categorical analysis” and “divisibility,” which are set forth in clear terms in this video.

Webinars

Categorical Analysis of Immigration Consequences

University of Maryland School of Law Immigration Clinic

The “categorical approach” is used to determine whether a prior criminal offense triggers an immigration consequence under immigration law-for instance, whether a prior criminal conviction renders a noncitizen removable. This video introduces the basics of the “categorical approach” and explains in simple terms how it is used.

Case Law

Descamps v. United States, 133 S. Ct. 2276. (2013)

Although not an immigration case, Descamps examines the origins of the “categorical approach” and explains how to apply the “modified categorical approach.”

Case Law

Mathis v. United States, 136 S. Ct. 2243 (2016)

In Mathis, the Supreme Court lays out the “means vs. elements” test for “divisibility,” an integral part of the categorical analysis.

Case Law

Matter of Silva-Trevino III, 26 I&N Dec. 826 (BIA 2016)

In Matter of Silva-Trevino III, the BIA holds that Supreme Court sentencing decisions on the categorical analysis (such as Descamps) apply with equal force in immigration court proceedings and explains how to apply the categorical analysis to crimes involving moral turpitude.

Case Law

Matter of Chairez, 26 I&N Dec. 819 (BIA 2016)

In Matter of Chairez, the BIA held that the divisibility analysis in Mathis applies to all immigration court proceedings.

Practice Guides

How to Use the Categorical Approach Now

Immigrant Legal Resource Center

Practice Advisory from April 2017 addressing recent Supreme Court cases.

Contact Us

Have a question about volunteering? Need help? Contact us.

Hand holding protest sign

Guided Learning

If you are new to this area, we suggest the following training sequence to learn about the immigration consequences of crimes and how to analyze crimes in the immigration context.


1. Immigration Consequences of Criminal Activity
This report provides an overview of the major immigration consequences of criminal activity. It provides a good starting point for practitioners new to this area.

2. Categorical Analysis of Immigration Consequences
The “categorical approach” is used to determine whether a prior criminal offense triggers an immigration consequence under immigration law-for instance, whether a prior criminal conviction renders a noncitizen removable. This video introduces the basics of the “categorical approach” and explains in simple terms how it is used.

3. Divisibility of Criminal Statutes and the Modified Categorical Analysis of Immigration Consequences
When diving deeper into the “categorical” analysis, you’ll need to learn more about “modified categorical analysis” and “divisibility,” which are set forth in clear terms in this video.