Possession of Controlled Substance: DHS Burden In Removal Proceeding
Author: Immigration Attorney Alena Shautsova
Removal proceeding is a government initiated procedure to “send” somebody who is not a citizen to their home country or the country designated by the government. The other name for these proceedings is exclusion or deportation proceedings (the name actually depends on the time when the proceedings were initiated, as the name has changed as the laws changed).
Usually, it is up to the immigrant to provide that he/she may remain in the country.
However, if a person, who is in removal proceedings, is a permanent resident, the government has the burden to prove the charges of removability. The charges are contained in the document named Notice to Appear, and usually are short, concise statements of the allegations against the person. The government burden must be established by clear and convincing evidence. INA §240(c)(3)(A); 8 CFR § 1240.8(a). If a permanent resident is being removed due to the criminal charges, and especially controlled substance related offences, the government has the burden of establishing by clear and convincing evidence that the person was convicted of a crime “relating to a controlled substance”, as defined in section 102 of the Controlled Substance Act (21 USC §802).
It is very important to note here that the government may not introduce just any documents it considers relevant in order to prove the charges. An Immigration attorney’s job is to “watch” for what actually goes on the record. There is something called a reviewable record of conviction, discussed in Dickson v. Ashcroft, 346 F 3d 44, 52 (2d Cr 2003); Shepard v. U.S., 544 U.S. 13, 20 (2005); Taylor v. U.S., 495 U.S. 575, 602 (1990). The record of conviction includes “the charge, indictment, plea, judgment or verdict, sentence, transcript from the court proceedings.” See Shepard, 544 U.S. at 26. A police report is not a part of the record of conviction. Matter of Ahortalejo-Guzman, 25 I&N Dec. 465, 465 (BIA 2011). A criminal complaint in New York is not included in the record of conviction. It may become a charging document only when it has been converted into an information. NYCPL §170.65(1). A complaint might be a charging document only if the defendant waived his right to be prosecuted by an information. That is why help of experience and knowledgeable criminal defense attorney is required at the very initial stage of the criminal proceedings (arraignment).
As such, if a record of conviction does not contain the controlled substance a person was convicted of possession, the government cannot sustain its burden in the immigration proceedings against a person resident.
If you have Immigration concerns or questions call Immigration attorney Alena Shautsova 917-885-2261.