Commonsense Arrested
1. A British citizen with a U.S. citizen spouse and children can be denied legal permanent resident status because she had once been convicted of possession of 2 joints of marijuana in the U.K.? (Assume the conviction was later expunged under U.K. law.) True or False?
2. A Canadian Citizen who has been a lawful permanent citizen for the past 25 years is subject to deportation with no hope of returning to the United States because he was convicted of possession of cocaine residue in 1999? (Assume he has no other criminal history) True or False?
3. Alicia, a US Citizen, and Ricardo, an Italian Citizen were married in 2000. In 2002, Ricardo obtained his lawful permanent residence status. Last month, Alicia and Ricardo had a really bad fight. Alicia sustained scratches on her hand. The neighbor called the police and Ricardo was arrested for domestic violence. Ricardo’s attorney told him to enter a diversion program because it would not be a conviction and he would not go to jail. Ricardo signs the diversion agreement, goes to court and the judge officially places Ricardo on diversion. He is still subject to being deported from the United States? True or False?
4. Marcus, a citizen of Spain, came to the United States as a baby when his parents brought him to the United States. Marcus meets Isabella and falls head over heels in love. Marcus is 16 and Isabella is 18. Marcus becomes “crazy” in love and begins to show up everywhere Isabella is found. Isabella, obtains a restraining order. Marcus, convinced Isabella is just “playing hard to get” pays no attention to the restraining order. Isabella calls the police and Marcus ends up in front of a Judge. The judge finds him in violation of a Restraining Order for repeated harassment to Isabella. This finding will subject Marcus to deportation for which there is no waiver.True or False?
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “the 1996 Immigration Act” or “the 1996 Act”) represented the culmination of several trends in United States immigration policy. First, the 1996 Immigration Act made it even more difficult for immigrants facing possible removal (deportation) to obtain “equitable relief” that would allow them to remain in the United States. In many cases, immigration judges can no longer exercise their discretion to allow an immigrant to remain in the United States based on his or her family ties, employment history, other significant connections to the United States, and (if relevant) rehabilitation. Under the 1996 Act, “aggravated felons” do not qualify for equitable relief from removal, and the list of crimes deemed “aggravated felonies” has expanded significantly. Second, the 1996 Act greatly increased the categories of immigrants, particularly those with criminal records, subject to “mandatory detention.” The 1996 Act took away the discretion of Immigration and Naturalization Service (INS) officials to release thousands of immigrants. Third, under the 1996 Act, immigrants who illegally return to the United States following their removal face steeper criminal sanctions, as well as reinstatement of their removal orders. In this and other ways, the 1996 Act continued the trend toward the criminalization of immigration violations. Fourth, the 1996 Act attempted to limit significantly federal judicial review of removal and custody decisions. Making matter more difficult for immigrants, the 1996 Act has been retroactively applied. Most recently, the Real ID Act of 2005 now abolishes habeas review of final removal orders.
Combined, these provisions have led to the mandatory detention and removal of a steady stream of long-term legal permanent residents, with strong family ties to the United States, who committed relatively minor crimes, often years before. The consequences have been severe both in the United States and abroad. In the United States, families have been divided, with immigrants removed at great emotional and financial cost to their United States citizen children and spouses. Immigrants have been returned to countries in which they have few family, economic or even linguistic ties — countries, in effect, to which they no longer belong. Returning nationals have often proven disruptive, difficult to assimilate, destabilizing, and even dangerous. Embassy and consulate officials receive regular communications from their nationals in the United States who are facing removal, and from their home countries who are attempting to assimilate waves of returning nationals.
On March 1, 2003, the Immigration and Naturalization Service (INS) was abolished and absorbed into the new Department of Homeland Security (DHS). The reorganization mainly effected a change in the structure of immigration functions. INS was the one agency where all immigration functions, including adjudication and enforcement, were housed within the Department of Justice. Now, immigration functions are separated into three separate agencies within the DHS. Immigration service functions — including immigrant visa petitions, applications for citizenship, applications for asylum and refugee status, and adjudication of nonimmigrant petitions – are now handled by the United States Citizenship and Immigration Services (USCIS). Two separate bureaus handle immigration enforcement: the Bureau of Customs and Border Protection (BCBP) and the Immigration and Customs Enforcement (ICE). ICE enforces customs and immigration laws within the United States. BCBP conducts inspection and enforce immigration and customs laws at the border.
Non-citizens lawfully in the United States include immigrants who are admitted to reside in the United States as lawful permanent residents and non-immigrants who are permitted to enter the U.S. for a limited period of time and given temporary visas. Immigrants include those who immigrate via family-based and employment-based petitions and as refugees and asylees. Examples of non-immigrants are students, tourists, temporary workers, business executives, and diplomats. Some non-citizens are in the U.S. without documentation, either because they never had documentation (“entered without inspection”) or because they overstayed the period of their non-immigrant status or violated the terms of their status (such as working without a work permit) or they are Canadian citizens (who normally don’t obtain documentation when they enter the U.S. as tourists). When determining a person’s status, be sure to determine the person’s status at the time of your initial interview. Often people will say they are in the process of applying for some status, but that is a statement of what they hope their status will become in the future rather than what their status is at the moment. It is important to also determine if they are eligible for a lawful immigration status.
In addition to determining a client’s current status, it is important for an attorney to find out what actions immigration authorities have taken with respect to the client in the past. A client’s record of immigration actions, both positive and negative, can be just as important as his or her criminal record in litigation decisions or plea negotiations. In addition, the date of a client’s admission to the United States can determine whether a conviction for a crime of moral turpitude renders the client deportable. The date upon which a client was admitted as a lawful permanent resident alien will determine whether the client is eligible for Cancellation of Removal. In most cases it is possible to file a Freedom of Information Act request to obtain copies of your client’s immigration file.
Aliens can come into deportation proceedings (now known as “removal proceedings”) in many ways. An alien with a recent criminal conviction can be put into proceedings after serving his criminal sentence because ICE has lodged a “detainer” against him while he was in prison. An alien with a criminal conviction in his past can be put into proceedings when he applies for naturalization (citizenship) or adjustment of status (legal permanent residency). Both procedures require ICE to check fingerprints for prior arrests or convictions. Sometimes probation officers review their old files and alert ICE when they think that an alien is deportable. Aliens can also come to the attention of ICE and be put into proceedings when they return from a trip abroad.
When the ICE decides that an alien is removable, they issue a charging document called a Notice to Appear (“NTA”) with allegations and charges regarding the person’s citizenship, nationality, and grounds of deportability. The NTA is filed with the Immigration Court, after which the alien must present himself at court and answer the charges against him.
The Immigration Court is part of the Executive Office of Immigration Review (“EOIR”), which is an agency in the U.S. Department of Justice. Immigration Court hearings for aliens in detention can be conducted at DHS detention centers or at regular jails and prisons where the DHS rents space. Unfortunately, many of these facilities are in very remote locations where little or no legal assistance is available, and access to telephones is restricted. For this reason, most aliens in detention do not speak to an attorney before seeing an immigration judge.
At the hearing, the alien will be opposed by an DHS prosecutor usually an expert in immigration law, who argues in favor of the person’s deportation. The 1996 Immigration Act made it much more difficult for judges to use their discretion and grant waivers that would allow otherwise removable aliens to remain in the country. A judge’s decision may be appealed by the alien or DHS to the Board of Immigration Appeals (“BIA”), but judicial review in the federal courts has been greatly curtailed. A new process called “administrative removal,” for non-legal permanent residents (e.g., refugees, conditional residents, and asylees), allows the ICE to deport aliens without a hearing. These aliens must respond in writing to the charges against them, usually from jail, to the satisfaction of the INS, or they will be deported.
Many terms used in criminal law have a different meaning or consequence in immigration law. The following are some examples.
Conviction. Conviction of a crime means that (1) a court has found a person guilty, a person has pled guilty or nolo contendre, or a person has admitted that the facts are sufficient to support a finding of guilt, and (2) a court has ordered some form of punishment, penalty, or restraint on the person’s liberty. Thus, the question of whether a pre-trial diversion program constitutes a conviction depends on whether an admission of guilt is part of entry into that program. Programs which require an admission of guilt and then some period of court-ordered probation or community service, followed by setting aside of the conviction on successful completion of that program, do constitute convictions for immigration purposes.
A general continuance or deferral of prosecution to monitor the defendant for good behavior (without entry of a plea or admission of the charges), followed by dismissal, is a non-conviction alternative. Payment of restitution is another possible non-conviction alternative. In some states, the defendant can reach a civil accord and satisfaction with the complaining witness, in lieu of prosecution. This provides yet another non-conviction alternative.
Generally, a case still under direct appeal is not considered a conviction for inadmissibility or deportation purposes. DHS may, however, consider a case under appeal in making discretionary decisions or they may defer their decision until the appeal process has been completed.
Moral Turpitude. The question of whether a crime constitutes moral turpitude for the purposes of inadmissibility or deportability depends not on the facts of the particular case of the defendant, but rather on the elements of proof under the state or federal statute for which the defendant was convicted. For example, in some jurisdictions, passing bad checks may involve an intent to defraud, but in other jurisdictions that same statute may not involve fraud as an essential element of the offense. Convictions for incest, gross indecency, and simple fornication have been held not to involve moral turpitude under the Board of Immigration Appeals case law. However, incest with a minor could be viewed as sex abuse of a minor. The crime of making false statements is a crime of moral turpitude when the elements of materiality and knowledge are shown.
Single Scheme of Misconduct. To be considered a single scheme of criminal misconduct for deportability purposes, the crimes must have arisen out of a single criminal episode “such as where one crime constitutes the lesser offense of another, or where two crimes flow from and are the natural consequence of a single act of criminal misconduct.” Whether actions flow from a single act can have important immigration consequences.
Sentence. A sentence remains a sentence for immigration purposes, even if imposition or execution of it has been suspended.
Aggravated felonies. The term “aggravated felony” means–
A. murder, rape, or sexual abuse of a minor;
B. illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act [21 USCS § 802]), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code);
C. illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18, United States Code) or in explosive materials (as defined in section 841(c) of that title);
D. an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $ 10,000;
E. an offense described in–
- (i) section 842 (h) or (i) of title 18, United States Code, or section 844 (d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
- (ii) section 922(g) (1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924 (b) or (h) of title 18, United States Code (relating to firearms offenses); or
- (iii) section 5861 of the Internal Revenue Code of 1986 [26 USCS § 5861] (relating to firearms offenses);
F. a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year;
G. a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year;
H. an offense described in section 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom);
I. an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography);
J. an offense described in section 1962 of title 18, United States Code (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
K. an offense that–
- (i) relates to the owning, controlling, managing, or supervising of a prostitution business;
- (ii) is described in section 2421, 2422, or 2423 of title 18, United States Code (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
- (iii) is described in section 1581, 1582, 1583, 1584, 1585, or 1588 of title 18, United States Code (relating to peonage, slavery, and involuntary servitude);
L. an offense described in–
- (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18, United States Code;
- (ii) section 601 of the National Security Act of 1947 [50 USCS § 421] (relating to protecting the identity of undercover intelligence agents);
- (iii) section 601 of the National Security Act of 1947 [50 USCS § 421] (relating to protecting the identity of undercover agents);
M. an offense that–
- (i) involves fraud or deceit in which the loss to the victim or victims exceeds $ 10,000; or
- (ii) is described in section 7201 of the Internal Revenue Code of 1986 [26 USCS § 7201] (relating to tax evasion) in which the revenue loss to the Government exceeds $ 10,000;
N. an offense described in paragraph (1)(A) or (2) of section 274(a) [8 USCS § 1324(a)(1)(A) or (2)] (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act;
O. an offense described in section 275(a) or 276 [8 USCS § 1325(a) of 1326] committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
P. an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18, United States Code, or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act;
Q. an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
R. an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
S. an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
T. an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
U. an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph.
The effect of criminal convictions on immigration status is a twisted, ever-changing law school exam question. If you are a criminal defense attorney dealing with an immigrant client, insist, not ask, not suggest, but insist that further examination take place relating to the effect of a criminal conviction, admission, or deferred adjudication.
Many times, the only instance in which it may be possible to divert a conviction consequence is before it is resolved in the State or Federal Courts. Under certain circumstances, the resolution that avoids the immigration consequence is contrary to the natural order of things for prosecutors and defense counsel alike. It is in these situations that aligning yourself with a proficient immigration attorney, versed in criminal matters, becomes paramount to a successful defense.
Dealing with criminal non-citizens requires vigilance on the part of the criminal defense attorney to understand both the plea options and the basic immigration definitions of criminal classifications. While many of these definitions may be found directly in the statutes, some can only be ascertained through Agency decisions and regulations. Moreover, it may be inconsequential whether the offense is a misdemeanor, felony or a civil violation (ie. violation of a protection from abuse order) and an immigration consequence.
GETTING THE RIGHT INFORMATION TO GET THE RIGHT RESULT
A Preliminary Evaluation
1. Entry: Date first entered U.S. ____________ Visa Type: _________________________
Significant departures: ______________________________________
Date: ______________________________________
Length: ______________________________________
Purpose: ______________________________________
Date last entered U.S. ___________ Visa Type: ______________
2. Immigration Status: Lawful permanent resident? YES NO
If so, date client obtained green card: __________________________________________
Other special immigration status: (refugee), (asylee), (temp. resident),(work permit), (TPS), (Family Unity), (ABC), (undocumented), (visa – type: )
Date obtained: ______________________________________
Did anyone ever file a visa petition for you? YES NO
Name and #:______________________________________
Date: ______________________________________
Type of visa petition: ______________________________________
Was it granted? YES NO
3. Prior Deportations: Ever been deported or gone before an immigration judge? YES NO
Date: ___________________ Reason: ______________________
_____________________________________________________
_____________________________________________________
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Do you have an immigration court date pending? YES NO
Date: ___________________ Reason:______________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
4. Prior Immigration Relief: Ever before received a waiver of deportability [§ 212(c) relief or
cancellation of removal] or suspension of deportation? YES NO
Which: ________________________________ Date: _______________
5. Relatives with Status: Do you have a U.S. citizen relative (parent, spouse, child (DOB),
brother or sister)? _______________________________________
Do you have a lawful permanent resident (spouse) or (parent)? __________
6. Employment: Would your employer help you immigrate? YES NO
Occupation: __________________________________________________
Employer’s name and number: ____________________________________
7. Possible Unknown U.S. Citizenship: Were your or your spouse’s parent or grandparent born
in the U.S. or granted U.S. citizenship? YES NO
Were you a permanent resident under the age of 18 when a parent naturalized to U.S.
citizenship? YES NO
8. Have you been abused by your spouse or parents? YES NO
9. In what country were you born? ___________________________________
Would you have any fear about returning? YES NO
Why? ________________________________________________
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