What is the ‘reasonable probability’ test regarding criminal convictions?

QUESTION: I was convicted of an assault charge and have been told that there is a possibility that I can show that it was not a crime of moral turpitude, and therefore, that I would not be deportable. Is this true?
Answer: It is possible in many criminal statutes to analyze scenarios whereby certain conduct under the statute would not be considered to have committed a crime involving moral turpitude.  There are courts that have determined that under what is known as the categorical approach, it is insufficient to provide “theoretically possible” conduct that constitutes a non–aggravated felony or crime of moral turpitude to determine that a particular statute is not an aggravated felony.
Rather, it requires proof that the minimum conduct that would make a conviction a non–aggravated felony crime has a “realistic possibility” of being prosecuted under the statute. For example, in one case whether “aiding and abetting” under a vehicle theft statute in California was an aggravated felony and rejected the Ninth Circuit’s determination that “aiding and abetting” a theft is not itself a crime that falls within the generic definition of theft. In so doing, the Court found that when a respondent seeks to create a new “subspecies” of a crime so that it falls outside of the generic definition of the aggravated felony then he or she has the burden to demonstrate that the statute was applied that way in his or her case or that it has been applied that way in other actual, not hypothetical, cases.
The Court stated: “In our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.
To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts, in fact, did apply the statute in the special (nongeneric) manner for which he argues.
Such an example could be in regard to state firearms convictions requiring that a “noncitizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms. Other courts have broadened this to show that they must demonstrate a realistic probability by requiring that others had to have been convicted of the hypothetical crime not merely indicted for it.”
Another example might be a statute that on its face covers a controlled substance not included in the Federal schedule, there must still be a realistic probability the state would prosecute conduct that falls outside the generic definition to defeat removability.
Thus, under the “reasonable probability” test, it does make it more difficult to try to carve out sections of statutes showing that the crime should not be an aggravated felony or a crime of moral turpitude, but in fact, it is possible and can be done and applied if properly argued.

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Atty. Brian D. Lerner has been an Immigration Attorney for nearly a quarter of a century. He is married to a Filipina and has helped thousands of Filipino families all over the country. In addition to his offices in Southern California in Long Beach and Carson, he has an office in Quezon City. He is a certified specialist in Immigration and Nationality Law by the Legal Board of Specialization, California State Bar. The initial consultation is free. Call (562) 495-0554 and/or send an e-mail to [email protected].

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