In the United States, certain criminal convictions can trigger deportation.  But does this apply to foreign convictions, too? And to what extent do the immigration courts look at the context of foreign convictions?

These questions were addressed in a recent unpublished BIA opinion which gives some insight into the Board’s current thinking about foreign convictions.

In Matter of Nunez-Garrido, 2011 WL 585611, A099 115 048 (BIA Miami, FL, Feb. 3, 2011)(unpublished), the Board considered whether an Immigration Judge had properly granted a bond to a person with a foreign conviction for murder. Whether someone is eligible for an immigration bond is not always set in stone. And as this case shows, it might vary by case.

The Board in Nunez-Garrido recognized that the foreign conviction existed, but it looked behind the conviction to try to figure out what really had gone on.  And the Board pointed to “evidence in the record which strongly suggests that the victim’s death resulted from an accidental shooting or, at worst, reckless conduct on the part of the respondent.”

This a bizarre discussion given the BIA’s traditional refusal to look into the merits of a foreign conviction. The general rule the Board has always followed is that it does not have jurisdiction to second-guess the decision of a foreign court to reach a criminal conviction. Matter of McNaughton, 16 I&N Dec. 569, 571 (BIA 1978)Matter of Polanco, 20 I&N Dec. 894 (BIA 1994)Matter of Fortis, 14 I&N Dec. 576, 577 (BIA 1974)Matter of Reyes, 20 I&N Dec. 789 (BIA 1994). In simple terms, this means a foreign conviction will be sufficient to trigger deportation, no matter why the person was convicted.

The Board has even noted that foreign convictions which would not comport with the constitutional protections provided in the US are fine. Matter of M-, 9 I&N Dec. 132, 138 (BIA 1960).

Nor does a full pardon of a foreign conviction erase it for immigration purposes. Matter of M-, 8 I&N Dec. 453 (BIA 1959).

Given this long list of decisions, the Board’s recent unpublished decision in Nunez-Garrido hints that the Board is reconsidering its position. Or, at the very least, in cases where the evidence actually shows the person was convicted by isn’t really guilty of conduct that would be a crime in the United States, the BIA will consider this context.