Law Firm of Linda Friedman Ramirez P.A.

 Immigration Consequences of Criminal Convictions - February 2002 article

 Linda Friedman Ramirez, Tova Indritz, and F.J. Capriotti III (Feb 2002)

For non-citizens, the immigration consequences of a criminal conviction may be far greater than any punishment of incarceration and/or a fine. These consequences flow from relatively minor offenses and impact non-citizens regardless of economic or social class. For those non-citizens who are convicted of crimes, particularly those given state or federal prison sentences, the INS systematically moves to deport them from the United States, regardless of the length of time in the U.S., family ties in the U.S., or the U.S. government's diplomatic relations with the person's home country.

Based on a criminal conviction, or even a pre-trial diversion that a state does not define as a "conviction," a client might be subject to deportation or exclusion (now called "removal") from the United States, be ineligible for discretionary relief (to avoid deportation), and often become permanently unable to lawfully return to the United States. There are thousands of non-citizens presently serving federal sentences for the crime of illegal reentry based on the illegal return to the U.S. after deportation for a state, local, or federal conviction.

The following case example demonstrates how these issues can arise, and how such consequences may be avoided.

Case Example

Sue and her former boyfriend, John, have an argument over their 3-year-old child. John drives over to Sue's house and enters the house by breaking a window. A confrontation ensues, and John shoves Sue into a wall. He then strikes her current boyfriend, who is also at Sue's house. The neighbor calls the police, and John is arrested and charged with two counts of burglary and two counts of assault IV. He hires an attorney to defend him and hopes to enter into an arrangement that would allow him to avoid trial. At first glance, the best course of action for John seems to be a plea to one count of assault IV with a sentence of anger counseling, probation, and no jail time. However, John is a non-citizen from Great Britain who first came to the United States as a businessman and then became a lawful permanent resident. The assault IV would be considered by an Immigration Law Judge as a crime of domestic violence, which is grounds for deportation or "removal." The fact that he acknowledged that he had an anger problem and was willing to get treatment would not change the fact that he would be deportable. Because he has not been lawfully present in the U.S. for long enough, he is not eligible for "cancellation of removal," a form of discretionary relief from deportation. However, he might not be subject to deportation if he can plead to only one count of assault IV as to the boyfriend, and is sentenced to a term of imprisonment of less than one year.As demonstrated by this example, there may be ways to structure the outcome of criminal cases so as to avoid, or at least minimize, the immigration consequences.

Determine Immigration Status

In order to avoid an unexpected immigration consequence to your client, determine the client's current immigration status at the first client interview. Always ask every client directly about his or her place of birth and immigration status. A lawyer cannot assume that a client is a U.S. citizen simply because he or she speaks English well. This is especially true of clients who may even assume that they are U.S. citizens, having been brought to the United States as infants, when in fact their parents never followed through with the appropriate immigration visa application.

Ask to examine documentation evidencing the client's immigration status. If they have a card issued by the INS which has their photograph, copy both sides of the document and make particular note of the Immigration Service file number, which begins with the letter "A." If they do not have a card, but have a passport with a stamp from the U.S. government, copy all appropriate pages and attachments. If the client does not currently have documentation, ask if he or she ever had documents, and if so, what they were and how they were obtained. If the client advises that the documents have been lost, this is a good opportunity to determine whether the client has previously been arrested or has previously been placed in deportation proceedings. A client might be reluctant to admit that he or she has been deported from the United States previously, and hope that the authorities won't learn of the prior history. The non-citizen client must understand the potential consequences.

Case Example

Anna first entered the United States without a visa. However, she later met and married Ralph, a U.S. citizen. Ralph then petitioned for Anna to become a lawful permanent resident alien. Anna was given conditional residence (valid for two years), and she and Ralph later had a child. When their son was one year old, she and Ralph separated due to domestic violence. She later obtained public assistance for her son but failed to report income that would have disqualified her. She was charged with Unlawfully Obtaining Public Assistance. Frightened, she failed to appear in court and was charged with Failure to Appear in the First Degree. After her arrest, Anna was desperate to resolve her case. She advised her attorney that she did not understand the paperwork and had never intended to lie about her earnings. A good resolution would appear to be a plea of Guilty to the Failure to Appear charge, for which she had no defense, if the prosecutor would dismiss the charge of Unlawfully Obtaining Public Assistance. Unfortunately the Failure to Appear in a matter for which a sentence of more than 2 years can be imposed is an aggravated felony for immigration purposes, and she would be deportable from the United States and no relief from deportation would be available. On the other hand, if she had pled to Attempted Theft, for which a maximum sentence of only 6 months could be imposed, she might still besubject to deportation but not as an aggravated felon. In addition, if she can establish that she has been the victim of domestic violence, there is a special immigration program for which she might qualify to remove the condition on her lawful permanent residence; she would not be qualified, however, if she has been convicted of an aggravated felony. This could also assist her in fighting deportation.

Non-Citizen Clients Include Immigrants and Non-Immigrants

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. (This process usually takes a long time.)

INS Has Its Own Definitions

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. See, 8 U.S.C. 1101(a)(48)(A). 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. INS 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. See, 8 U.S.C. 1101(a)(48)(B).

Resources (see Web Resources)

Criminal defense attorneys are well-advised to consult with an attorney experienced in immigration law.

Aggravated Felonies 8 USC 1101 (43)

As of May 8, 2003

(43) The term "aggravated felony" means--

• murder, rape, or sexual abuse of a minor;
  
• 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);
  
• 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);
  
• 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;
  
• 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);
    
  
  
• 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;
  
• a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year;
  
• 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);
  
• an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography);
  
• 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;
  
• 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);
    
  
  
• 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);
    
  
  
• 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;
    
  
  
• 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;
  
• 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;
  
• 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;
  
• 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;
  
• 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;
  
• 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;
  
• 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
  
• 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.

Basic Information for Immigration Consequence Evaluation (See  Expanded Intake Form Below)

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?
   

   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 (parent), (spouse), (child -- DOB(s), (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?