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Blandon Law Immigration

Friday, January 29, 2010

Modified Categorical Approach

     In addition to the Categorical Approach discussed in an earlier blog, the Modified Categorical Approach helps to determine whether a foreign national is deportable as an aggravated felon.  These are high stakes:  a foreign national convicted AT ANY TIME of a crime which is later determined to be an aggravated felony is deportable and probably not eligible for any kind of waiver.
     It's not that the foreign national broke a law called "aggravated felony."  It's that the foreign national was convicted of breaking one of several types of laws that now an Immigration Judge (IJ) is stating is an aggravated felony.  It's a legal determination and yes, an attorney is a must.
     Where the law is divisible (person can be convicted under the law for either a or b), the IJ normally must limit his/her review to certain documents, known as the record of conviction.  By looking at these documents, the IJ must determine what the foreign national was convicted of.  Otherwise, looking at all the evidence again would turn the IJ proceeding into another criminal trial.  The record of conviction includes the charging document, the transcript of the plea colloquy, the written plea and all findings of the criminal judge to which the foreign national assented.
     Unfortunately, last year, the Supreme Court rejected limiting the analysis to certain documents.  All seems fair game, both for Immigration to use as a weapon to have someone deported and for attorneys to use as a defense to have someone remain.  How that drastic ruling will affect immigration cases this year will definitely be interesting to watch.

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