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Selected Issues Crimes/ImmigrationConvening 2009

Convictions - Finality False Documents/ID Theft Issues DUIs Domestic Violence Changes in Crimes of Moral Turpitude

Analysis – Silva Trevino

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CRIMES CAN MAKE AN IMMIGRANT: INADMISSIBLE/ DEPORTABLE LACK GOOD MORAL CHARACTER BAR FROM RELIEF/STATUS NEGATIVE EXERCISE OF

DISCRETION

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SOME BASIC ADVICE

1. QUESTION CLIENTS CLOSELY REPEATEDLY REGARDING ANY CONTACT WITH LAW ENFORCEMENT

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2. DON’T APPLY FOR CIS BENEFIT

DON’T TRAVEL

UNTIL CLEAR ON EFFECT OF CRIMINAL HISTORY

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3.GET IMMIGRATION LEGAL COUNSELING AS WELL AS CRIMINAL DEFENSE COUNSELING

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4. GET THE COMPLETE CRIMINAL RECORD, RELEVANT STATUTES

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Your Client’s Criminal History

Never rely on your client’s statement of his/her criminal record.

FBI for overview Court records from where proceeding took

place are best information NEW: If in removal, and burden on

respondent, must supply Criminal History Chart (Appendix O Immigration Court Practice Manual)

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FBI – Starting Point

For a nationwide search, do an FBI search with fingerprints – instructions at www.fbi.gov, do not say for immigration purposes

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How to get court records

Typically, criminal court records are kept by the clerk of the court where the client was convicted.

They may be in off-site archives or destroyed after a certain number of years.

There is usually a fee for copies and certification

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Information on Line

Example – District Court of Maryland – go to site index, case search, can enter person’s name and get record

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GETTING COPIES OF STATUTES Necessary for any analysis of criminal

conviction Need to get copy of statute as is existed

year client was convicted – statutes change from year to year

Also should get sentencing guidelines to see max. for conviction

Start at www.findlaw.com

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Definition of Conviction at INA § 101(a)(48):

A formal judgment of guilt entered by a court; or

Withholding of adjudication, where

– judge/jury finds alien guilty; or

– alien enters guilty plea; or

– alien enters "nolo contendere"; or

– alien admits sufficient facts to warrant finding of guilt, and

– judge orders some form of punishment, penalty or restraint on liberty.

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NOT A CONVICTION FOR IMMIGRATION PURPOSES:

Conviction that isn’t final (in some circuits) Finding of delinquency, Matter of Devison Acquittal or finding of not guilty Nolle prosequi disposition Diversionary program without determination or

admission of guilt Vacation or setting aside of a criminal conviction

on the merits, based upon a flaw in the underlying proceedings.

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Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)

If it appears that a conviction was vacated solely to eliminate immigration consequences, the vacation will not be recognized for immigration purposes

Conviction must be vacated because of procedural error or legal defect

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EXPUNGEMENTS

Matter of Roldan, 22 I&N Dec. 512 (BIA 1999): expungement under state rehabilitative statute is still a conviction for immigration purposes

In the 9th Circuit, an expungement under the FFOA or a state rehabilitative statute, where offense could have been tried under FFOA is an expungement for immigration purposes

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6. FIGURE OUT WHAT THE SENTENCE IS FOR IMMIGRATION PURPOSES

Sentence includes any period of incarceration or confinement ordered, regardless of suspension. (INA § 101(a)(48)(B)

Sentence is period of confinement ordered, regardless of what is actually served

Sentence imposed after probation violation is part of original sentence for immigration purposes

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VACATING SENTENCES

Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005): If a sentence is vacated and a new sentence is imposed – the new sentence is the one that counts for immigration purposes

The reason behind the vacation of the sentence is irrelevant for immigration purposes

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Case Law on Finality of Convictions

Only Final Conviction has Immigration Impact except for:

Puello v. BCIS (2d Circuit)Abiodun v. Gonzales (10th Cir)Montenegro v. Ashcroft (7th Cir)Moosa v. INS (5th Cir)Issue: Whether IIRIRA changed definition of

conviction and eliminated finality requirement

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Changes in Crimes of Moral Turpitude Analysis

Matter of Silva Trevino – Impact of 2008 AGE Decision:

Precedent decision which erodes the “categorical” approach for determination of what a Crime of Moral Turpitude is.

If Statute is divisible, (multi sectioned) and record of conviction unclear, decision maker may consider additional evidence

ONLY for CIMT analysis

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DUI OFFENSES

Is DUI a CIMT? Only in certain cases Is DUI an aggravated felony? Usually

not Can DUI prevent from showing good

moral character? sometimes

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DUI Offenses and Aggravated felony

Not an aggravated felony “crime of violence” if statute has no mens rea or negligence mens rea

Leocal v. Ashcroft, 543 U.S. 1 (2004); Matter of Ramos, 23 I&N Dec. 336 (BIA 2002)

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DUI Offenses and CIMT

Most DUI offenses are not crimes involving moral turpitude Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001)

Statute punishing second or subsequent DUI is not a CIMT Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001)

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DUI offenses and CIMT

DUI is a CIMT if statute punishes: (1) driving under the influence while

knowingly on suspended, canceled, or revoked license

(2) driving under the influence while already on a restricted license due to a prior DUI

Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999)

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DUI Offenses and CIMT

Reminder: it’s the statute, not the act Don’t look at the facts of your client’s

case – look at the elements of the statute he was convicted under

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DUI Offenses and CIMT

Hypo: Sally went out drinking one night in NC, even though she knew that she should not drive because her license was suspended. She got pulled over, was arrested, and convicted for simple DUI in NC (NC Stat. 20-138.1 = driving with a blood alcohol level of .08 or more)

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DUI Offenses and good moral character

INA 101(f)(1): habitual drunkard as bar to GMC

Matter of H, 6 I&N Dec. 614 (BIA 1955): BIA upheld habitual drunkard bar to GMC when psychiatrist testified to habitual drunkard

Matter of Estrada-Aguilar, File No. A10 533 905 (BIA, Oct. 19, 1999) (unpublished): 3 arrests for public intoxication and two DWI convictions over a 15-year period was not enough to show habitual drunkard

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DOMESTIC VIOLENCE DEPORTABILITY Section 237(a)(2)(E)(I) Conviction after September 30, 1996, regardless of length of sentence At any time after entry Of crime of:

– Domestic violence, as defined under 18 U.S.C. 16– Stalking– Child abuse– Child neglect– Child abandonment

Doesn’t even matter if NOT a CIMT. For example, simple child neglect under Florida Statute, not even a CIMT, not even subject to mandatory detention, bond eligible, but still can be deportable and hopefully a waiver available.

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Domestic violence is described as a “crime of violence (as defined in section 16 of title 18)” directed against a current of former spouse, co-parent of a child, co-habitator, or other person similarly situated under DV laws.

Using the 18 USC Sec. 16 definition of a COV, a simple assault may come within the ground of deportability under this section if the victim was, for example, a former cohabitating girlfriend.

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VIOLATORS OF PROTECTION ORDERS DETERMINATION BY A COURT THAT PERSON ENJOINED UNDER PROTECTION ORDER HAS AFTER SEPTEMBER 30, 1996 VIOLATED PART OF ORDER PROTECTING AGAINST CREDIBLE

THREATS OF VIOLENCE, REPEATED HARASSMENT, OR BODILY INJURYCAN SEEK WAIVER OF DV DEPORTABILITY INA 237(a)(7):

REQUIRES THAT:1. PERSON ACTING IN SELF-DEFENSE2. PERSON VIOLATING ORDER PROTECTION INTENDED TO PROTECT SELF

OR3. CRIME DID NOT RESULT IN SERIOUS BODILY INJURY AND THERE WAS A

CONNECTION BETWEEN CRIME AND PERSON HAVING BEEN BATTERED OR SUBJECTED TO EXTREME CRUELTY

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CAN SEEK WAIVER OF DV DEPORTABILITY INA 237(a)(7):

REQUIRES THAT:1. PERSON ACTING IN SELF-DEFENSE2. PERSON VIOLATING ORDER PROTECTION INTENDED TO

PROTECT SELF OR3. CRIME DID NOT RESULT IN SERIOUS BODILY INJURY AND

THERE WAS A CONNECTION BETWEEN CRIME AND PERSON HAVING BEEN BATTERED OR SUBJECTED TO EXTREME CRUELTY

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Domestic Violence Offenses

Inadmissibility problems: Domestic assault or domestic battery

can be a CIMT if injury results Matter of Sejas, 24 I&N Dec. 236 (BIA 2007)

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Domestic Violence Offenses

Deportability problems: INA 237(a)(2)(E)(i): domestic violence

as separate ground of deportability Domestic violence can be an

aggravated felony if crime of violence + one year sentence INA 101(a)(43)(F)

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Domestic Violence Offenses

Good moral character problems: 101(f) bars GMC finding if covered in INA

212(a)(2) (criminal grounds of inadmissibility) Petty offense exception applies if CIMT, but

max punishment is one year and sentenced to 6 mos or less

Residual clause problem: look at facts of case

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Domestic Violence ground of deportability

INA 237(a)(2)(E): Crime of domestic violence Crime of stalking Crime of child abuse Crime of child neglect Crime of child abandonment Criminal or civil violation of protective order

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Crime of domestic violenceINA 237(a)(2)(E)(i)

Must be crime of violence under 18 USC 16

Must be committed against a person Person must be protected by laws of

state protecting domestic victims

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Crime of domestic violenceINA 237(a)(2)(E)(i)

Record of conviction issue: some circuits have suggested that whether the victim was a “protected person” can be established outside of the record of conviction

See Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003); but see Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004)

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Domestic Violence

Hypo: George gets in a fight with his wife on night, hits her and causes serious injury. He gets convicted under NC 14-33.3(d) (= in course of assault and battery, inflicts serious injury or uses deadly weapon on a person with whom he has personal relationship and in presence of minor). He is an LPR, and wants to naturalize.

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Domestic Violence

Hypo: Roger gets in a fight with his wife and kicks in the door, causing damage. He gets convicted for destruction of property. He is an LPR, and wants to naturalize.

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Domestic Violence

Ellen and her husband have separated, and she tries to go back to the house one night while she’s out. She gets convicted of domestic trespass under NC 14-134.3 (=entering after being forbidden to do so or remains on land after being ordered to leave, premises belonging to former spouse or domestic partner). She is an LPR and wants to naturalize.

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False Document Problems

Look to see if it is a conviction for immigration purposes (sometimes it is merely citation)

Convictions in U.S. proceedings that do not require proof of guilt ”beyond a reasonable doubt” or otherwise comport with standard criminal proceedings. Matter of Eslamizar, 23 I & N Dec. 684 (BIA 2004)

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False Document Problems

Possession of false document with intent to use such document = CIMT

Simple possession of a false document is not a CIMT

Matter of Serna, 20 I&N Dec. 579 (BIA 1992)

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False Document Problems

Be aware of petty offense exception – even if CIMT

if it is the only CIMT on the client’s record + max punishment is one year + actual punishment is 6 months or less, not inadmissible under 212(a)(2)

not barred from GMC under 101(f)

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False Document Problems

Aggravated felony: if convicted under statute that punishes same elements as 18 USC 1543 or 1546(a) plus one year sentence INA 101(a)(43)(P)

18 USC 1543 and 1546(a) punish forging, counterfeiting, altering or falsely making immigration documents or passports

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False Documents: Aggravated ID Theft Problems

Aggravated felony: some ID theft has been found to be AF under INA 101(a)(43)(G) if sentence is one year

U.S. v. Mejia-Barba, 327 F.3d 678 (8th Cir. 2003) (holding that an identity theft conviction is a theft offense under 8 U.S.C. § 1101(a)(43)(G) because it involves misappropriation of property by using it in a manner that is inconsistent with the rights of the true owner).

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Supreme Court on ID Theft – Stay Tuned

Flores Figueroa v. US – argued Feb. 2009

Whether an individual who used a false ID document without knowing it belonged to another person can be convicted of an aggravatd ID theft under 18 USC 1028

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False Document Problems

Mandujano-Real v. Mukasey (9th Cir. May 22, 2008): petitioner’s conviction for identity theft under an OR statute is not a theft offense

The statute punishes a person for using a fictitious identity, which does not involve the taking or exercise of control over property because a fictitious identity belongs to nobody and there is no rightful owner from whom the defendant did not get consent.

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False Document Problem

Hypo: Vince gets convicted under VA 18.2-204.2(C) (possession of fictitious license or ID)

Hypo: Vince gets convicted under VA 18.2-204.1(A) (possession of birth certificate of another for the purpose of establishing false ID for himself)

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Steps for Analyzing a Case

Determine whether your foreign born client is actually a U.S. citizen.

Determine your client’s entire criminal history (don’t rely on the government’s allegations).

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Determine whether the criminal disposition is a conviction for immigration purposes.

Determine whether your client is eligible to naturalize, despite his or her criminal record.

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Determine which immigration law analysis applies to your client’s situation (it could be more than one).

Determine who has the burden of proof.

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If the government has the burden of proof, analyze whether they have proven the existence of the conviction.

Briefly review all sections of applicable statutory grounds for removal to see whether they could possibly apply (the government can add charges later).

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Conduct a detailed analysis of the provisions that may apply to see if they actually apply. Get a copy of the relevant statute at the time your client was convicted. Research BIA and applicable federal case law. Start with www.findlaw.com.

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If applicable, contest the immigration charge(s) against your client. Never concede a charge unless you are absolutely sure there is no argument that it doesn’t apply.

Brief relevant issues for the judge.

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If needed, determine whether a waiver is available to eliminate the consequences of the criminal history.

If needed, determine whether post-conviction relief is available to eliminate the consequences of the criminal history.

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In general, encourage any noncitizen with a criminal record not to apply for any immigration benefit or travel abroad before obtaining competent legal advice.

In general, counsel any immigrant charged with a crime to get immigration AND criminal defense counseling.