overview of immigration law relating to criminal offenses june 9, 2009
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2Mark Evans June 9, 2009
The Immigration Definition of ConvictionFormal judgment of guilt entered by a court.
If adjudication has been withheld, where:
A judge or jury has found the alien guilty, OR
The alien has entered a plea of guilty or nolo contendere OR
The alien has admitted sufficient facts to warrant a finding of guilt AND
The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
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And Definition of Sentence
Term of imprisonment / incarceration / confinement
Regardless of suspension of the imposition or execution of that imprisonment in whole or part.
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Notice to Appear (NTA)
Master Calendar
Bond Hearing
Individual Hearing on Relief Applications
Immigration Court
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Criminal Grounds of Removability
Inadmissible Aliens – Aliens who cross the border illegally or who are seeking admission.
Deportable Aliens – Resident aliens and visitors such as students and tourists.
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Inadmissible Aliens
Crimes Involving Moral Turpitude (CIMTs)
Contrary to moral laws, base or vile, evil intent.
Examples:
Theft
Fraud
NOT CIMTs:
DWI
Involuntary Manslaughter
Petty Offense Exception
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Inadmissible Aliens
Controlled Substances
Need to know the substance.
Must be in the federal Controlled Substances Act.
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Inadmissible Aliens
Multiple Criminal Convictions
Two or more offenses.
Total sentences to confinement must be 5 years or more.
Not limited to CIMTs.
Felony DWI may be used here.
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Inadmissible Aliens
Controlled Substances Traffickers
Reason to believe a trafficker.
No conviction necessary.
(Not often seen, except at the border.)
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Inadmissible Aliens
Prostitution
Requires at least 2 convictions.
(Also a CIMT.)
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Deportable Aliens
CIMT
Must be convicted within 5 years of admission AND
The crime must carry a potential sentence of 1 year or more. (Any Texas felony or misdemeanor A, but not misdemeanor B or C.)
Bond Issue – While most criminal grounds make an alien mandatory, for this ground the actual sentence must be for 1 year or more.
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Deportable Aliens
Multiple Criminal Convictions
2 or more CIMTs.
At any time after admission.
Not the same scheme of misconduct.
Can be felonies, or any level misdemeanor.
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Deportable Aliens
Aggravated felonies
Very little relief available.
Non-resident aliens may be removed without referral to an Immigration Court.
Commonly Seen Aggravated Felonies:
Murder, Rape, Sexual Abuse of a Minor. (Deferred adjudication is sufficient.)
Trafficking in a controlled substance: Delivery of a controlled substance, possession with intent to deliver, or 2 or more possessions.
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Deportable Aliens
Aggravated Felonies Continued
Crimes of Violence
18 U.S.C. 16(a) (element of the use of physical force) and (b) (felony and by its nature involves a substantial risk of physical force).
Need a 1-year sentence. (Not deferred adjudication.)
Most likely requires an intentional act.
“Intentionally, knowingly, and/or recklessly” in an indictment creates issues in immigration court.
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Deportable Aliens
Aggravated Felonies / Crimes of Violence
Misdemeanor Assault in Texas is not a crime of violence under 5th Circuit law.
DWI is not a crime of violence.
UUMV is a crime of violence. (Felony, substantial risk.)
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Deportable Aliens
Aggravated Felonies
Theft or Burglary
Requires a one-year sentence.
Fraud where loss to the victim exceeds $10,000
Commercial bribery, counterfeiting, forgery
Requires a one-year sentence.
Obstruction of justice, perjury
Requires a one-year sentence.
Attempt or conspiracy to commit any other aggravated felony.
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Deportable Aliens
Controlled Substances
Other than 1 possession of 30 grams or less of marijuana.
“Relating to a controlled substance” – simulated controlled substance
Drug abusers and addicts. (Almost never used.)
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Deportable Aliens
Firearms Offenses
Very important to have the type of weapon specified on the indictment and/or judgment for immigration purposes.
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Deportable Aliens
Crimes of Domestic Violence, Stalking, or Violation of a Protective Order, Child Abuse
“crime of domestic violence” involves a “crime of violence” under 18 USC 16
felony assault of a family member in Texas
Important to indicate on indictment and judgment that the conviction involved a family member
Injury to a child is child abuse.
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Relief from Removal
Asylum, Withholding, Convention Against Torture
Some criminal bars, but all are eligible for CAT.
Adjustment of Status / Re-adjustment
Some criminal bars for drug crimes but most CIMTs may be waived.
Cancellation
For resident aliens.
Aggravated felony is a bar.
For aliens who entered without inspection.
Any criminal ground of removability bars them.
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Relief from Removal
Voluntary Departure
212(c) – For pre-1997/1996 convictions.
NACARA Cancellation
TPS – A stay of removal.
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Vacating the Conviction
What is the basis?
It is vital for the reason be spelled out in the motion to vacate and/or order vacating the conviction.
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Reducing / Reforming Sentences
For immigration purposes, it will be the reformed sentence that is considered.
Note that in certain circumstances, the alien may benefit from violating his probation.
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DHS Contacts
Gary Goldman – Chief Counsel
Don Cassidy – Deputy Chief Counsel
Monica Thompson-Guidry – Deputy Chief Counsel
Mark Evans – Senior Attorney
Erica McGuirk – Senior Attorney
There is also a duty attorney assigned daily.
281/931-2046
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