Recently in Criminal Immigration Category

A Review of the Deferred Action / Deferred Prosecution Criteria for an Applicant's Criminal History

August 11, 2012, by The McKellar Law Firm, PLLC

As the Deferred Action ("DA") program is set to begin in a few days, more information has been released by U.S. Citizenship and Immigration Services concerning the requirements and procedures for the DA program. General information on the DA program can be found at my website. However, the purpose of this blog article is to look solely at the requirements related to an applicant's criminal history.

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One of the qualifications for an applicant to the DA program is that the applicant not have "been convicted of a felony, significant misdemeanor, three or more other misdemeanors" and "do not otherwise pose a threat to national security or public safety." In other words, if you have a conviction for a felony offense, "significant misdemeanor offense," or 3 or more other misdemeanor offenses, you will not be granted deferred action.

While a felony conviction is easy to understand, the term "significant misdemeanor offense" is a bit trickier to grasp. USCIS defines significant misdemeanor offense as a misdemeanor that satisfies the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,

2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

Since there now exists a concept of significant misdemeanor offenses, we must also understand what constitutes a "non-significant misdemeanor," which USCIS defines as a misdemeanor which:

1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and

2. Is one for which the individual was sentenced to time in custody of 90 days or less.

USCIS also notes that minor traffic offenses (e.g., driving without a license) will not be considered a misdemeanor for purposes of the DA program, but an applicant's "entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, [an applicant] warrants an exercise of prosecutorial discretion."

While there are still many questions concerning how an applicant's criminal history may impact his/her ability to take advantage of the Deferred Action program, this new guidance makes it even clearer that those with criminal convictions should consult with an immigration attorney prior to submitting an application to the DA program.

Maryville, Tennessee Man Faces Deportation Due to Crimes of Moral Turpitude

The Immigration and Naturalization Act (INA) provides that an alien or lawful permanent resident (LPR) is deportable if he/she is convicted of a crime of moral turpitude, and other conditions set forth in INA Sec. 237(a)(2)(A)(i) are met. Wes Wade of the Daily Times has an article today about Maryville, Tennessee, LPR Samuel John Phillip Lloyd, who is facing deportation for the ominously named "crimes of moral turpitude."

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Lloyd is a British national and also an LPR of the United States. According to the article, Sheriff's Office records show that Lloyd has received more than 40 criminal charges, ranging from theft to aggravated burglary, to which Lloyd pled guilty in 2010. This aggravated burglary charge is a class C felony, and this charge apparently attracted the attention of Immigration and Customs Enforcement officers, who have initiated deportation proceedings against Lloyd. Lloyd is currently being held in the Oakdale, Louisiana federal detention facility, awaiting to appear before an Immigration Judge to determine whether Lloyd will be deported.

To be deportable under INA Sec. 237(a)(2)(A)(i), a person must be (1) convicted of a crime involving moral turpitude, (2) which was committed within 5 years of admission to the U.S. (unless entry was via an S Visa), and (3) the conviction must be for a crime in which a sentence of one year or longer may be imposed. For this last requirement, the actual sentence imposed may be less than 1 year, but the statute only requires that the offense carry a potential sentence of 1 year or longer.

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.

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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).