Yew Immigration Law Group, a P.C.
Call For An Appointment:
CALL:
408-389-4764
Menu

When an immigrant is convicted of certain offenses, including controlled substance offenses, they can be deported and removed from the United States. Recently, the U.S. Court of Appeals for the Ninth Circuit heard a case in which an immigrant petitioned to avoid removal. She claimed that she was not, in fact, convicted of a crime that disqualifies her from remaining in the U.S.

The issue was that the woman had pled guilty to a violating California's Penal Code § 182(a)(1): conspiracy. It seems that the underlying offense did involve a controlled substance. However, the petitioner did not plead guilty specifically to a controlled substance offense but pled down to a felony conspiracy charge.

When the government tried to deport her for having committed a controlled substance offense, she argued that her conviction was not a controlled substance offense. The Board of Immigration Appeals argued that the burden of proof lay with the petitioner and that she had failed to prove her case. Ultimately, the case ended up before the 9th Circuit.

What does the conviction record show?

The 9th Circuit ruled for the petitioner. Using a test known as a modified categorial approach, the court examined whether someone who pled guilty to a California conspiracy charge was always considered to have committed a controlled substance crime. It found that the California statute does not require the underlying offense to be a controlled substance offense but can apply to any crime.

It overruled a previous circuit precedent, Young v. Holder, in light of a more recent Supreme Court ruling. Under Young v. Holder, the petitioner has the burden of proving that their conviction, if ambiguous, was not for a crime making them ineligible to remain in the U.S. Under Moncrieffe v. Holder, however, the court said, there is no such burden.

Instead, the decision in Moncrieffe indicates that, when a conviction record is insufficient to conclusively establish a petitioner was convicted of a particular offense, the petitioner did not, for immigration purposes, commit that offense.

The 9th Circuit went on to hold that the question of what a conviction record conclusively establishes is a question of law, so appeals courts are able to rule on it. Here, they ruled that the petitioner did not commit a controlled substance offense, for immigration purposes. Therefore, she is eligible to petition for cancellation of removal.

If you have been threatened with deportation and removal, don't give up hope. Depending on your circumstances, you may qualify for a procedure called "cancellation of removal" like the petitioner in this case. If you have questions, contact Yew Immigration Law Group. We have years of experience helping people with all sorts of immigration law problems.

No Comments

Leave a comment
Comment Information

Let Us Help You

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Contact Us Today »

Firm Location:
1155 North First Street
Suite 210
San Jose, CA 95112

Phone: 408-389-4764
Fax: 408-709-2002
San Jose Law Office Map