In immigration court, it’s easy to focus only on “relief” from removal, but what if an immigrant in deportation proceedings isn’t even deportable?

Now you may be thinking the government would not put an immigrant into deportation proceedings if he isn’t even deportable.  Maybe not on purpose.  But it happens very often. There are many reasons for this, from simple human errors to genuine disagreements about the law.

If the DHS believes my client’s conviction makes him removable and I don’t agree, then we ask the judge to decide (before we even talk about what “relief” is available”).

In my observation, especially when the case involves crimes committed by the immigrant, many attorneys skip this first step, the question of removability, and move right on to relief.  They concede that the immigrant is removable and put all of their energy into finding a mechanism for the court to forgive their removability.  This practice is short-sighted.

When is an Immigrant Removable?

In immigration court, when an immigrant is already in the United States, the threshold question in every case is very simple: has the government proven by clear and convincing evidence that the immigrant is allowed to be deported.

That may sound like a funny way of wording it, but it’s true. The immigration statute lists several categories of people who are “removable.” If the government can’t prove the immigrant, at a minimum, fits into one (or more) of these categories, then the government isn’t allowed to deport him.  And if the government isn’t allowed to deport him, the case is over.

For immigrants who have no legal status in the first place, the government’s job is very easy.  All it has to prove is that the immigrant is not a citizen of the United States and is in fact a citizen of another country. Those two facts combined with the lack of any immigration status makes the immigrant removable (and once that determination is made we try to determine what “relief” he is eligible for to stay in the United States).

For immigrants who are here legally (including permanent residents (or “green card” holders) as well as people on valid temporary visas, the most common way to wind up in immigration court is by doing something that triggers a ground of removability.  The list of reasons for deporting someone is very long.  It includes things like lying to immigration officials and committing certain crimes. One can even get deported for foreign convictions.

If the government can prove by clear and convincing evidence that an immigrant who is here legally has done something listed in the deportation statute, then the first step is over, the immigrant is found “removable,” and we move on to talking about “relief.”

When is an Immigrant NOT Removable? 

Obviously, given that the government has to prove removability by clear and convincing evidence, if the government can’t prove its case then the immigrant is not removable.

In cases involving crimes, there are multiple reasons a “conviction” might not actually trigger removal


To make this determination we always have to look at the conviction documents and the statute.

Putting these together, we can analyze whether the crime actually meets the grounds listed in the immigration statute.

Example: When is “Stalking” Not a Crime of Stalking? 

I was motivated to write this post because of a decision we received today in the mail. My client two Illinois convictions: (1) “stalking,” and (2) violating a protective order.  Pretty heavy stuff.  And there are several reasons under the immigration statute that a person with these convictions might be deportable.

But this guy wasn’t.

When I got the case, my client’s attorney had withdrawn and by then my client had been detained pending trial for six months (he had admitted he was removable very early in the case, but it turns out he wasn’t).

Immediately, we reviewed the convictions (thankfully Illinois had them online). That told us the date of the conviction and the statute it fell under.  We pulled up the statute online and read the requirements.  And immediately it became clear that, based on the charges the government was bringing, this gentleman was not deportable at all.

Some states have a crime called “stalking” that covers way more than other states’ versions of “stalking.” This is because unlike most criminal statutes (for things like murder and robbery) which were developed 100 years ago and generally all mean the same thing, “stalking” is a relatively new crime.

It wasn’t until the 1980s or 90s that most states actually created a crime called “stalking.” Some states criminalize only the most serious behavior while others, like the one in this case, criminalize less-serious conduct.

But immigration law is federal, and there isn’t supposed to be that kind of variation. Under the immigration statute, you can be deported if you get convicted of a “Crime of Stalking.”

To make sure that the law is applied evenly from state to state, the Board of Immigration Appeals has held that for a state statute to actually be considered a “Crime of Stalking,” the state statute had to require the defendant to cause someone else to “fear bodily injury.”

In my case, the state statute didn’t require that at all.  It only required the defendant to have caused another person “emotional distress.” Because of this distinction, a state conviction for “stalking” under that statute did not fit into the BIA’s definition of “Crime of Stalking” under the immigration statute.

In my client’s case, if he had been found removable, he would have had no other options or relief. Deportation was automatic.

Thankfully, this morning after several weeks of waiting, we received the judge’s decision. He agreed that the crime did not count as a “Crime of Stalking” under the federal immigration laws.  So, our client gets to be released and go back to his family. He was in the United States legally (as a permanent resident), so he gets to stay.

We can’t win every case like that – it’s not often for a state statute to be so glaringly different from what the federal law requires before deportation can be ordered. But when we do, it is an important reminder not to give up on the issue of removability.