I was pleased to be ask by the Khmer Post USA to write a series of articles on deportation issues. Since the focus of these articles is on the Cambodian Community, they relate to deportation after a Final Order of Removal (“Deportation Order”) has entered. The current controversy involves the physical removal to Cambodia of people who received Removal Orders for crimes committed years, often decades, ago. I have written a four part series of articles for the Khmer Post concerning deportation defenses for people who already have Final Orders. I am hopeful that after this series runs, I will be asked to write on other subjects. Here is the link to the first article. Just in case this link some day ceases to work, below is what I wrote:
I am often asked what a person with a Final Order of Removal (Deportation Order) can do to avoid ICE showing up at their door and hauling them off to Cambodia. There are several potential defenses to a Deportation Order. I look forward to exploring these in a series of bite sized columns.
By far the easiest way to vacate a deportation order is the one I will discuss in this column. This method has been in the news lately, as it is how Veasna Meth was recently returned to California after being deported to Cambodia five years ago. The crime he was deported for, residential burglary, is not an aggravated felony although of being thought to be one five years ago. In April 2018, the Supreme Court held in a case called Sessions v. Damaya that California’s residential burglary statute is too vague to be an aggravated felony. Aggravated felonies include “crimes of violence” that result in a jail sentence (including a suspended sentence) of one year or more. The Supreme Court left no doubt that most of the acts covered by California’s burglary statue constitute crimes of violence, and did not question whether or not Damaya’s actions fell within the ambit of being violent. However, it would also be possible to violate that statute without engaging in a crime of violence. In immigration law, a crime is either violent or not violent. The Immigration Courts do not relitigate criminal cases. This is often a problem. Many times people will plead guilty to things that they may not be guilty of simply for convenience or because they are being threatened with more serious penalties.The Immigration Court will not hear any of that. However, if you have a crime which could be a violent crime but does not have to be, then the Supreme Court says it is not a violent crime, and thus cannot be an aggravated felony no matter what the person actually did. As a result, Mr. Meth gets to say ‘I was a convicted of a crime that might not be a crime of violence. It does not matter if I was violent or not. This conviction cannot sustain a deportation and thus I get to come home.’ Here in Massachusetts, the First Circuit Court of Appeals held in U.S.V. Faust that in Massachusetts intentional assault and battery is not a crime of violence and neither is resisting arrest, and thus they cannot sustain a removal order based on either being an aggravated felony. Massachusetts defines “battery” as an “unconsented to touching”. Admittedly, a vast majority of Assault and Battery cases prosecuted in Massachusetts involve an act of violence. What is more, it is doubtful anyone is going to get a one-year jail sentence for an “offensive” touching. However, anyone who has a final Order of Removal over their head simply because of an Assault and Battery conviction should be seeing an immigration lawyer and seeking to have that case reopened. If that is the only conviction that gave rise to the final Order of Removal, the immigration case should be terminated and the Green Card returned.