By David S. Santee
A criminal conviction can have devastating consequences for someone who is not a citizen of the United States. Criminal convictions often lead to deportation and disqualify many noncitizens from obtaining lawful immigration status. The Immigration and Nationality Act (INA) can be unforgiving when it comes to criminal activity. Many criminal convictions cannot be waived. That means that the conviction will lead to certain deportation or denial of an immigration application.
On the other hand, the very strict rules in the INA that apply to criminal convictions can work to your advantage. If the government cannot prove that the conviction triggers a particular ground for removal from the United States, the immigration judge must terminate the deportation case.
Two cases that I handled recently illustrate this point. In one case, the immigration judge agreed with my argument that my client’s Pennsylvania conviction is not a conviction for a “controlled substance offense” under federal law. Therefore, the government failed to prove that my client was deportable under the provision of the INA that requires deportation of those convicted of controlled substance offenses. In the second case, the government sought to deport my client for a conviction of a crime involving moral turpitude (CIMT), which is a deportable offense if committed within 5 years of being admitted to the United States. In that case, there was no question that the Pennsylvania offense is a CIMT under federal immigration law. But a close inspection of the court records revealed that the offense was not committed within five years of admission.
In each case, I filed a motion to terminate, arguing that the government could not prove that my client was subject to deportation as charged. In each case, the judge agreed and terminated the deportation case. Both clients were released from detention in a matter of days. This is why a motion to terminate is the first line of defense in a deportation case. It is important in every case to review the deportation charges carefully and consider whether the government can prove its case.
What Is a Motion to Terminate?
The government initiates a deportation case by filing a charging document called a “Notice to Appear,” or “NTA” for short. The NTA includes both factual allegations and one or more charges of removability against the individual who is the subject of the deportation case, referred to as “the respondent.”
A motion to terminate asks the immigration court to dismiss all charges of removability and to terminate removal proceedings entirely. The motion can challenge the government’s ability to prove the factual allegations or may challenge whether the facts alleged, even if true, would trigger deportation based on the grounds of removability charged. The motion can also include new evidence that undermines the government’s factual allegations. DHS may respond to the motion by submitting additional evidence and a legal brief arguing why its evidence is sufficient to establish removability.
It is important to identify these legal issues early in the case and file the motion to terminate as soon as possible. In some cases, including the two cases discussed in this article, it is so clear that DHS cannot prove its case that it will inform the immigration judge that it does not oppose termination. Because termination ends the case entirely, it should always be considered before turning to forms of relief such as fear-based claims (e.g., asylum), cancellation of removal, or adjustment of status.
Let’s see how that played out in two actual cases.
Case #1: The Categorical Approach and Overbroad Drug Statutes
I recently represented a U.S. lawful permanent resident (i.e., green card holder) who had been convicted of violating Section 13(a)(19) of the Pennsylvania Controlled Substance Act. That section outlaws the following conduct:
The intentional purchase or knowing receipt in commerce by any person of any controlled substance, other drug or device from any person not authorized by law to sell, distribute, dispense or otherwise deal in such controlled substance, other drug or device.
As a result of the conviction, DHS initiated removal proceedings against my client. The NTA alleged that his conviction made him removable under Section 237(a)(2)(B)(i) of the INA, which provides that one who is convicted of “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance” is deportable.
Is Section 13(a)(19) of the PA Controlled Substance Act a law “relating to a controlled substance”? In order to answer that question, it is first important to understand how courts determine when a criminal offense outside the federal crimes code (i.e., a state or foreign crime) triggers federal immigration consequences related to criminal conduct.
Under longstanding Supreme Court and circuit court precedent, immigration judges must apply an analysis known as the “categorical approach” when determining whether a state or foreign conviction triggers removability. The categorical approach focuses on the statutory elements of the offense—not the specific facts of what the person allegedly did or was accused of doing. The elements must match the elements of the federal crime, such that every violation of the state or foreign crime would also be a violation of the federal crime. If the state or foreign statute criminalizes conduct that is broader than the corresponding federal offense, it does not categorically match, and the conviction cannot support removability.
Federal law defines a “controlled substance” as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V” of the federal schedules of controlled substances. Given that definition, does every violation of Section 13(a)(19) involve a controlled substance? Obviously not! Section 13(a)(19) applies to “any controlled substance, other drug or device.” Without even looking up all of the substances that are included in schedules I through V of the federal schedules of controlled substances, it is obvious that Section 13(a)(19) applies to things that are not federal controlled substances.
The Pennsylvania Controlled Substance Act includes definitions for the terms “drug” and “device” and it is obvious from both definitions that they include things that are not included in the federal schedules of controlled substances. For example, “device” includes “instruments, apparatus and contrivances…for use in the diagnosis, cure, mitigation, treatment or prevention of disease of man or other animals; or…to affect the structure or any function of the body of man or other animals.” For example, a pacemaker would be a device but it is certainly not an item listed in the federal schedules of controlled substances. Therefore, because a violation of Section 13(a)(19) could involve a “device,” the crime is not a controlled substance offense under federal law and does not trigger the controlled substance ground for deportation.
You may be wondering - shouldn’t the immigration judge be able to review the records from the criminal case to see whether the respondent was accused of receiving a controlled substance as opposed to a device? Absolutely not! Let me explain why it would be a mistake to consider specific factual allegations.
When a jury finds a defendant guilty, the verdict represents the jurors’ agreement that the government has proven each element of the crime charged. To prove that a defendant violated Section 13(a)(19), for example, the government must prove that: (1) the defendant purchased or knowing received something in commerce, (2) that the thing purchased or received was any controlled substance, other drug or device, and (3) that the defendant purchased or received it from any person not authorized by law to sell, distribute, dispense or otherwise deal in that controlled substance, other drug or device. The jurors need not agree that the thing that was purchased or received was a controlled substance, another drug, or a device.
Imagine a case in which the defendant is accused of purchasing an item from each category. Four jurors could believe that the defendant purchased a controlled substance, another four could believe that the defendant purchased another drug, and the remaining four could believe that the defendant purchased a device. Even though all 12 jurors do not agree on the means by which the defendant committed the crime, they all agree that the government satisfied this element of the crime. An immigration judge cannot later conclude that the defendant was convicted of a controlled substance offense because the jurors were not required to agree that the defendant purchased a controlled substance. The specific accusation that the defendant had purchased a controlled substance was unproven because not all jurors agreed that he did.
This is an example of how the rigid application of the immigration laws related to controlled substances benefit the noncitizen. Once the immigration judge agrees that a Pennsylvania conviction under Section 13(a)(19) is not a controlled substance offense under immigration law, the case is over. The judge has no authority to order deportation and cannot substitute his or her own opinion about what crime the respondent committed in place of the jury’s verdict.
Case #2: Failure to Prove that a CIMT was Committed Within Five Years of Admission
Let’s consider another example, this time involving proof of a specific fact - specifically, the date of the offense. My client was admitted to the United States as a tourist in March 2014. He later adjusted status to U.S. lawful permanent resident in 2017. In 2023, he was convicted of violating Section 3126(a)(2) of the Pennsylvania crimes code, which relates to indecent assault. DHS initiated removal proceedings against my client, charging him as deportable under Section 237(a)(2)(A)(i) of the INA for having “been convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed.” There is no question that the Pennsylvania crime of indecent assault is a CIMT and that it is punishable by at least one year of incarceration. The case turned on whether my client committed the crime within five years after his admission as a tourist in March 2014.
In support of its allegation that my client had committed a CIMT within 5 years of his admission, DHS submitted records from the criminal case. The records included a police report detailing the complainant’s report that the crime occurred in a hotel room in March 2017. Detectives went to the hotel in search of records that the defendant had stayed there and obtained records of multiple reservations by the defendant, beginning in May 2019 and ending in November 2019. Although the records submitted by DHS included evidence that the defendant pleaded guilty to the offense, they did not indicate a specific offense date.
The fact that the plea did not include a specific offense date should have been enough to win a motion to terminate. It was DHS’s burden to prove that my client committed the crime within five years of his admission and the evidence that it submitted failed to do so. However, I was able to obtain the full criminal file, which included a copy of the formal charges filed against my client. The charges alleged that my client committed the offense in November 2019. Because there was no amendment to the date at the time of the guilty plea, this confirmed that my client pled guilty to and was convicted of a crime that occurred in November 2019.
This evidence left no doubt that my client was not deportable. In fact, DHS conceded that I was right and the immigration judge granted my motion to terminate. My client was able to keep his green card and continues to live in the U.S. as a lawful permanent resident.
Why Motions to Terminate Matter
These cases illustrate why motions to terminate should be evaluated in every removal defense case. Too often, noncitizens are steered directly toward relief applications without first asking a more fundamental question: Is my client actually removable under the law?
A successful motion to terminate:
- Ends the case entirely, without the risks inherent in discretionary relief;
- Preserves your existing immigration status;
- Avoids a lengthy immigration court proceeding; and
- It represents an opportunity for many to avoid lengthy detention.
Avoiding Immigration Court Entirely
As important as motions to terminate are for those who find themselves in removal proceedings, the cases discussed in this article underscore the value of consulting with an experienced “crimmigration” lawyer - one with experience in both criminal and immigration law - before you make any decisions on your criminal case. Both of these clients came to me long after their criminal cases had been over and after deportation proceedings had already begun. Both clients were very fortunate that their convictions ultimately did not lead to deportation. Neither was aware of the potential immigration consequences when they were facing the criminal charges.
I have more than 25 years of experience handling criminal cases and often serve as both criminal defense counsel and immigration counsel for my clients. I also serve as immigration counsel for those who already have a lawyer representing them in criminal court. In either case, I will provide valuable advice, including:
- Which charges would trigger deportation in the event of a conviction;
- Whether you would be subject to “mandatory detention” in immigration court or whether you would be eligible to apply for bond;
- Whether you would have any good defenses or qualify for relief from removal in immigration court and whether a conviction would disqualify you or have any other adverse effect;
- Whether a conviction would disqualify you from future immigration benefits, such as obtaining a green card;
- Whether you should propose a guilty plea to different charges that would avoid or reduce the risk of deportation;
- Whether you should insist on any corrections or amendments to the record to avoid problems in immigration court;
Based in Media, we serve clients throughout Delaware County, Montgomery County, Chester County, Philadelphia, Bucks County, and across Pennsylvania, New Jersey, Delaware, and nationwide. Wherever you are, if you’re a noncitizen who is facing criminal charges, or if you are facing detention or removal, Santee Law Offices is here to help.
Call 215-935-4481 or schedule your consultation online today.
Taking action early can make all the difference. We stand with you, ready to protect your interests, defend your rights, and pursue every available path to relief.
Disclaimer: The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.