Tennessee Federal Criminal Lawyer Blog

On December 21, 2012, Director of U.S. Immigration and Customs Enforcement (ICE) John Morton issued a memorandum to provide additional guidance on the use of ICE detainers. I have previously written about ICE detainers here. This memorandum re-emphasizes ICE's focus on removing those individuals whose "removal promotes public safety, national security, border security, and the integrity of the immigration system." A copy of the memorandum can be found here.

The memorandum promises that ICE will be revising its current detainer form (Form I-247) in an effort to ensure compliance with removing persons who are in the United States without authorization AND who meet one or more of the following 8 conditions:

1. Prior felony conviction
2. 3 or more prior misdemeanor convictions
3. A prior misdemeanor conviction or has simply been charged with a misdemeanor offense if the charge involves any of the following:
* Violence, threats, or assault * Sexual abuse or exploitation * DUI or controlled substance * Fleeing the scene of an accident * Unlawful possession of firearm or other deadly weapon * Distribution of controlled substances * "Other significant threat to public safety"
4. Prior conviction for illegal entry per 8 USC § 1325
5. Illegal re-entry after a previous removal or return
6. Pending or current order of removal
7. Committed immigration fraud
8. Poses a significant risk to national or border security or to public safety

While there are many ambiguous and troubling terms used in the 8 conditions above, it is nice to see ICE continue its focus on dedicating its resources to pursuing the so-called "bad immigrants," as opposed to those persons who do not have the 8 referenced conditions.

I recently heard a noted immigration advocate comment that it was not a crime to enter the United States without proper documentation or authorization. Simply put, this immigration advocate is wrong. For example, federal laws such as 8 U.S.C. §§ 1325 and 1326, govern illegal entry into the United States. Individual states may also have laws which address illegal entry as well.

Title 8 Section 1325 of the U.S. Code makes it a crime for "any alien" to gain or attempt to gain access into the U.S. without proper examination or inspection, at times or locations apart from those authorized by immigration officers, or by gaining entrance by providing false or misleading information. The typical fines for these violations range from $50-$500 with possible imprisonment up to two years. However, entrance into the U.S. by other fraudulent means such as illegitimate marriage or deceptive immigration-related entrepreneurship also constitute illegal entry and those convicted face fines up to $250,000, imprisonment up to 5 years, or both.

Additionally, 8 U.S.C. § 1326 expands on the criminal aspects and punishments of illegal entry for those who have previously been denied entry, disqualified, extradited, or removed from the U.S., or who have left the U.S. with pending orders of exclusion, deportation, or removal and re-enter or attempt to re-enter the U.S. unlawfully. The punishments carry prison terms up to 2 years, fines, or both. In addition, there are criminal penalties that may amount to imprisonment up to 20 years with possible additional fines for individuals re-entering the U.S. who have been previously removed on specific grounds, such as those convicted of three or more misdemeanors related to drugs or crimes against others or those convicted of felonies.

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.

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.

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."

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.

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).

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.

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Many criminal defense and immigration attorneys are aware of the far-reaching implications of the U.S. Supreme Court's decision in Padilla v. Kentucky. The ABA Journal has recently posted on its website that the Supreme Court is considering whether the 2010 Padilla decision will apply retroactively to convicted criminal defendants who faced deportation before the Padilla decision was made.

In the Padilla case, the defendant pled guilty to transporting a large amount of marijuana. Mr. Padilla was not a citizen of the United States, and he asked his attorney whether he would face deportation if he agreed to the guilty plea. Relying on the fact that Padilla had lived in the United States for such a long time (and had served in the Vietnam War), his defense attorney erroneously told him that deportation would not be an issue. In reality though, pleading guilty made his deportation mandatory under the law. Padilla appealed to the Kentucky Supreme Court, insisting that had he had known that he could be deported for pleading guilty he would have gone to trial. Because the Kentucky Supreme Court denied Padilla post-conviction relief, Padilla's case eventually went to the United States Supreme Court.

The United States Supreme Court ultimately found that Padilla's defense attorney should have at least advised Padilla as to the risk of deportation, and by failing to do so had violated Padilla's Sixth Amendment right to effective counsel. Regarding whether this error was enough to reverse Padilla's conviction, the United States Supreme Court left that up to the state of Kentucky to determine.

Now, the Supreme Court must decide whether the holding in Padilla should apply retroactively. The Court has recently granted review to Chaidez v. United States, which involves a Mexican immigrant who pled guilty in 2003 to fraud involving more than $10,000, and is accordingly subject to deportation. Contrary to what the Supreme Court may have assumed when issuing the Padilla ruling, "federal and state courts are openly and intractably divided over whether the Padilla holding applies retroactively."

More information on this upcoming decision in the Chaidez v. United States matter can be found at the SCOTUSblog.

A Bill before the Senate titled "Transportation Research and Innovative Technology Act of 2012," (SB 1813 Sec. 40203), could give the IRS the power to revoke, limit, and/or deny passports to citizens that owe back taxes despite the fact that the IRS is not the entity that issues them.

Senate is expected to pass Section 40304 of Senate Bill 1813 which will penalize those that owe the IRS more than $50,000, have a lien or levy in place, and are behind on payments by revoking, limiting, or denying passports until the debt is paid. The exceptions would be if someone has an Installment Agreement with the IRS and are making the payments on time or if an appeal has been initiated. There is no language that states exactly how delinquent the debt must be or how long a lien or levy must be in place before action can be taken against a citizen.

Relying on language found in the Passport Act of 1926 that states, "(a)n Act to regulate the issue and validity of passports, and for other purposes," (22 U.S.C. 211(a) et seq.), the new Bill will allow the Secretary to request a Secretary of State to revoke, limit, or deny passports to persons that meet the provisions of the Bill. Prior to revocation, a passport that has been previously issued can be limited to only allow return travel to the United States or a temporary, limited passport may be issued that will only allow return travel. Exceptions to revocation are emergency or humanitarian travel.

If this Bill passes the Senate and the House of Representatives, the action of revoking a passport will be carried out by an un-elected official. There is no provision that the taxpayer has to have a judgment against them for tax evasion or fraud. Further, there is no review or approval by Congress before action is taken, which raises "due process" concerns.

Senate Bill 1813 is currently before Senate and portions of it have already been passed. Should Section 40203 pass, it will take effect January 1, 2013.