overview of immigration law relating to criminal offenses june 9, 2009

OVERVIEW OF IMMIGRATION LAW RELATING TO CRIMINAL

OFFENSESJune 9, 2009

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.


And Definition of Sentence

Term of imprisonment / incarceration / confinement

Regardless of suspension of the imposition or execution of that imprisonment in whole or part.


Notice to Appear (NTA)

Master Calendar

Bond Hearing

Individual Hearing on Relief Applications

Immigration Court


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.


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


Inadmissible Aliens

Controlled Substances

Need to know the substance.

Must be in the federal Controlled Substances Act.


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.


Inadmissible Aliens

Controlled Substances Traffickers

Reason to believe a trafficker.

No conviction necessary.

(Not often seen, except at the border.)


Inadmissible Aliens

Prostitution

Requires at least 2 convictions.

(Also a CIMT.)


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.


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.


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.


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.


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.)


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


Obstruction of justice, perjury


Attempt or conspiracy to commit any other aggravated felony.


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.)


Deportable Aliens

Firearms Offenses

Very important to have the type of weapon specified on the indictment and/or judgment for immigration purposes.


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.


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.


Relief from Removal

Voluntary Departure

212(c) – For pre-1997/1996 convictions.

NACARA Cancellation

TPS – A stay of removal.


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.


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.


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

overview of immigration law relating to criminal offenses june 9, 2009

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