Understanding Deportation in California and Massachusetts

Please welcome our new guest column contributor attorney Louis S. Haskell. Attorney Haskell has been practicing law since 1987 specializing in immigration, accidents, and taxes. Attorney Haskell has worked with several clients who’ve received Order of Removal. He’ll be contributing article regularly to KhmerPost USA for our audience to be inform about laws with regarding the deportation issues and how to prepare for them. In this column, attorney Haskell writes about how laws have changed in California and Massachusetts that may lift some of the old crimes for those who received decade old of Order of Removal as their crimes are no longer deportable. Please read his article as followed:

By Attorney Louis S. Haskell

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.