June 2012 Archives

What is a Criminal "Conviction" in an Immigration Context?

June 28, 2012, by The McKellar Law Firm, PLLC

As both a criminal defense lawyer and an immigration attorney, I am often confronted with differing definitions of the same word. Knowing and applying the definition in each context is critical to protecting a client's rights. The most commonly misunderstood word by criminal defense practitioners is, oddly enough, the term "conviction" as it is used for immigration purposes.


In an immigration setting, "conviction" is defined at 8 U.S.C. § 1101(a)(48)(A). Per this statute, a conviction can arise in 2 ways:
1. If there is a "formal judgment of guilt of the alien entered by a court," or
2. If adjudication of guilt has been withheld, in cases where a judge or jury finds the alien guilty, the alien enters a plea of guilty or nolo contendere, or "has admitted sufficient facts to warrant a finding of guilty"; and the judge has imposed some form of punishment or penalty.

The usual pitfall for criminal defense attorneys arises in the second part of the definition because there are concepts such as pre-trial diversion, judicial diversion, or deferment, which in a criminal context, would not be considered a "conviction." However, in an immigration setting, even though an adjudication of guilt has been withheld, a client may still be deemed as convicted for immigration purposes.

In a case released earlier this week, Viveiros v. Holder, the First Circuit Court of Appeals reviewed a ruling of the Board of Immigration Appeals, and their review was limited to the first part of the definition of conviction (i.e., formal judgment of guilt of the alien entered by a court). The Court summarizes the facts as follows:

The petitioner was admitted into the United States in 1984 as a lawful permanent resident. He settled in Massachusetts. Roughly a quarter-century later, Massachusetts authorities charged him with shoplifting, see Mass. Gen. Laws ch. 266, § 30A, and larceny, see id. § 30(1). These charges arose out of separate crimes allegedly committed at separate times and places.

Pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), a person is deportable if they have two or more convictions for crimes involving moral turpitude which did not occur from a "single scheme of criminal misconduct." In the Viveiros matter, the sole issue before the First Circuit was whether the Petitioner was "convicted" with respect to his shoplifting charge.

The Petitioner argued that the shoplifting charge did not result in a "formal judgment of guilt" because he was not punished for this crime because he was assessed a $250 fine, which was later waived by the Court. The Court ultimately rejected his argument because a sentence and/or punishment was imposed and Petitioner was sentenced. However, due to the Petitioner's request (which was supported by his probation officer) to waive the fine, the Court waived the fine 5 months after it had been assessed. The law is clear that unless a conviction is vacated for either procedural or substantive errors, the defendant remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39-40 (1st Cir. 2006); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000).

An Overview of ICE Immigration Detainers

June 19, 2012, by The McKellar Law Firm, PLLC

For defendants and criminal practitioners alike, seeing the terms "ICE Hold" next to a person's name can often cause anxiety and confusion. The purpose of this blog post is to provide a brief overview of what an ICE Immigration Detainer is, and perhaps more importantly, what it is not.


Pursuant to 8 CFR § 287.7, authorized immigration officers are allowed to issue a Form I-247, Immigration Detainer - Notice of Action, which is a request that the local law enforcement agency notify Immigration and Customs Enforcement (ICE) that an alleged non-citizen has been taken into custody by local law enforcement. A copy of an Immigration Detainer can be found here.

One of the often overlooked sections of both the ICE Detainer and the language of 8 C.F.R. § 287.7(d) is the requirement that the Detainer only allows detention of the alien "for a period not to exceed 48 hours." Although there is some disagreement over when the 48-hour period is triggered, the common view is that it is triggered (for pre-trial cases) by the detained person a) posting bond or getting released ROR (released on his/her own recognizance) or b) the local court dismissing the underlying criminal case against the detainee. Alternatively, if the 48-hour period expires, and ICE has not assumed custody of the detainee, local law enforcement does not have grounds to hold the alleged non-citizen for any suspected federal immigration law violations.

While there are many more nuances about ICE Detainers, it is important to realize that an ICE Detainer is not a document which authorizes "indefinite" holds, as is often assumed. The Detainer is very narrow in its request, and for those agencies who have violated the terms of the ICE Detainer, they can potentially be held liable for damages.

Sixth Circuit Court of Appeals Finds that Nervousness and Too Much Eye Contact Do Not Provide Reasonable Suspicion of Criminal Activity

June 12, 2012, by The McKellar Law Firm, PLLC

Last week, in the case of United States v. Kelvin Johnson, an unpublished case out of Chattanooga, Tennessee, the Sixth Circuit Court of Appeals decided that it takes more than subjective suspicion to extend a traffic stop after a citation is written. The Court's decision was a 2-1 vote.


The facts of the case are rather straightforward: Kelvin Johnson was stopped by Officer Duggan of the Chattanooga Police Department for going 72 mph in a 65 mph zone. Duggan issued a speeding citation and then engaged Johnson in conversation. Duggan eventually asked for consent to search Johnson's vehicle. Johnson refused. Duggan then called a canine to sniff the car for drugs. The canine passively alerted that it smelled drugs. Officer Duggan was then able to search the vehicle at which time he found a firearm. No drugs were ever found.

Johnson had a prior felony conviction, and, therefore, he was prohibited from possessing a firearm. He was subsequently arrested. At trial he made a Motion to Suppress the firearm, arguing that Officer Duggan did not have reasonable suspicion of criminal activity to prolong the traffic stop. The trial court disagreed with Johnson, but the Sixth Circuit Court overturned the trial court's ruling.

Officer Duggan noted that his reasons for prolonging the stop were the following:

• Johnson was "overly focus[ed] on making eye contact;"
• Johnson's rental agreement only included travel states as Georgia and Florida, yet he was pulled over in Tennessee;
• Johnson told the officer he was meeting a woman in Kentucky, but only had two shopping bags of clothes;
• Johnson had degreaser in the car which could be seen prior to the search;
• Johnson was overly-nervous;
• Johnson took a "bladed stance" (this was later decided to be incorrect after review of the in-car police video).

The Sixth Circuit Court noted that most citizens with no reason to fear the law are nervous during a traffic stop. They cited Duggan's observations as "weak indicators," and reversed and remanded the case back to the lower court for further proceedings in line with its decision.