I have been an advocate of changing the Supreme Court’s decision that removal proceedings are civil and not criminal. The main reason being my argument is the fact that criminal law has infiltrated removal proceedings since the criminal grounds for removal have been expanded by Congress on several occasions.
One of the problems in removal proceedings is the definition of “conviction” for immigration law purposes. The common sense definition of the term does not apply in these “civil” proceedings, since a mere admission of enough facts makes you removable for immigration purposes. The consequences that come from such “conviction” are tremendous in the immigration context, including triggering the stop-time rule, a rule that would make a person ineligible for discretionary relief like Cancellation of Removal for non and lawful permanent resident.
The Board in a recent unpublished decision ruled that admission, without being informed of the possible consequences of such conduct and the true definition of the crime, did not trigger the stop-time rule under Matter of K, 7 I&N. Dec. 59 (BIA 1957). Unfortunately, this is an unpublished decision by the Board, which under guidance, the Board does not have to follow. However, I have used these decisions in court proceedings and they were very persuasive.
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