2013-04-25 Immigration Consequences Of Criminal Convictions · 25/4/2013 · Immigration...

Immigration Consequences ofCriminal ConvictionsRehan Alimohammad, PartnerAlimohammad & Zafar, [email protected]

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Rehan AlimohammadPARTNER

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Alimohammad & Zafar, PLLCwww.aandzlegal.com

Rehan Alimohammad, an Attorney and CPA, received his Bachelor’sDegree from the University of Texas at Austin and his law degree fromthe University of Houston.

He has written over 200 articles on immigration topics and has also givenover 100 seminars on immigration topics. He has organized over 100legal clinics and free wills clinics throughout the state of Texas. Inrecognition of his efforts he was named one of the 5 outstanding youngTexans by the Texas Junior Chamber of Commerce in 2011.

He has a bi-weekly radio show on 1460 A.M. in Houston, Texas and aweekly article in a community paper discussing the latest in immigrationdevelopments and answering immigration questions.

Mr. Alimohammad serves as Partner for the Law Office of Alimohammad& Zafar, PLLC in charge of immigration and tax matters. His contactinformation is 281-340-2074 or [email protected]

Conviction for Immigration PurposesImmigration Consequences of Criminal Convictions

Question: Which of the following counts as a conviction for immigration purposes?

a) Probation

b) Deferred Adjudication with a fine

c) Expunged Conviction

d) Conviction vacated for reasons “solely related to rehabilitation

e) None of the Above

f) All of the above



The Immigration and Nationality Act (INA), defines the term “conviction” (INA §101(a)(48) asfollows :

• (A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of thealien entered by a court or, if adjudication of guilt has been withheld, where—

• (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty ornolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

• (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien'sliberty to be imposed.



• The legislative history of the definition of conviction shows that Congress intentionally broadenedthe scope of what constitutes conviction in order to include “deferred adjudications.”

• As a result, the following instances have been held to be convictions for immigration purposes:

• Probation sentences

• Deferred sentences and Suspended sentences

• Expunged convictions

• Pretrial interventions such as conditional discharge if accompanied by a guilty plea or plea

of no-contest

• Juvenile Delinquency Adjudications = Not a conviction Matter of Devision (BIA 2000)



It is important to remember also that the definition requires some sort of penalty or punishment to beimposed by the court for “deferred adjudications” to constitute conviction. Punishment may includeany one of the following:

• A sentence of imprisonment (no matter how much actually served or if suspended)

• Fine

• Imposition of costs and surcharges in sentencing

• Probation

• Under the new Senate Bill for CIR: the term ‘conviction does not include a judgment thathas been expunged, set aside, or the equivalent.


Post-Conviction Relief May Still be a Conviction under INAImmigration Consequences of Criminal Convictions

• The BIA has ruled that when a state court vacates a judgment of conviction based on a

procedural or legal defect, the state court order must be given full faith and credit, and the

conviction is eliminated for immigration purposes. See Matter of Rodrigues-Ruiz, 22 I&N Dec.

1378 (BIA 2000). For example, if a conviction is vacated for ineffective assistance of counsel

through a motion for appropriate relief, there is no longer a conviction for immigration purposes.

• The conviction is not eliminated for immigration purposes, however, if it was vacated for reasons

“solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural

or substantive defect in the underlying criminal proceedings.” Matter of Pickering, 23 I&N Dec.

621 (BIA 2003);


Post-Conviction ReliefImmigration Consequences of Criminal Convictions

• A trial court’s order modifying or reducing a noncitizen’s criminal sentence is recognized as valid

for purposes of the immigration law without regard to the trial court’s reasons for the modification

or reduction. See Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005) (trial court’s reduction of

defendant’s prison sentence from 365 days to 240 days, nunc pro tunc)


Inadmissibility vs. RemovabilityImmigration Consequences of Criminal Convictions

• To be Inadmissible means one does not meet the standards under INA 212, 8 U.S.C. 1182 and

would be ineligible to receive a visa or admitted into the U.S.

• To be Removable/deportable means one does not meet the standards under INA 237, 8 U.S.C.

1227 and could be placed in Removal Proceedings


Inadmissible due to Criminal GroundsImmigration Consequences of Criminal Convictions

INA 212(a)(2)(A)

• (i) Any alien (includes all but Citizens) convicted of, or who admits having committed, or whoadmits committing acts which constitute the essential elements of

• (I) a crime involving moral turpitude (CMT), or attempt or conspiracy to commit suchcrime or

• (II)A violation of (or conspiracy or attempt) any law or regulation of a State, the U.S. ora foreign country relating to a controlled substance (per Section 102 of the ControlledSubstances Act 21 USC 802)

• Is inadmissible


Exceptions to Criminal Grounds of InadmissibilityImmigration Consequences of Criminal Convictions

INA 212(a)(2)(A)(ii): Clause (i)(I) shall not apply to an alien who committed only one crime if-

• (I) the crime was committed when the alien was under 18 years of age, and the crime wascommitted (and the alien released from any confinement) more than 5 years before the dateof application for a visa or other documentation and the date of application for admission tothe United States, or

• (II) “The Petty Offense Rule”: the maximum penalty possible for the crime of which the alienwas convicted (or which the alien admits having committed or of which the acts that thealien admits having committed constituted the essential elements) did not exceedimprisonment for one year (Texas Class A misdemeanor has max imprisonment of 1 year)and, if the alien was convicted of such crime, the alien was not sentenced to a term ofimprisonment in excess of 6 months (regardless of the extent to which the sentence wasultimately executed).



Texas Penal Code examples:

Class A Misdemeanor for 31.11. Tampering

with Identification Numbers a CMT that

would make the person inadmissible?

State Jail Felony conviction for a crime that

is a CMT would have a maximum sentence

of 2 years in jail, so person would be

inadmissible, assuming the minor exception

is not met.


What is a CMT for Immigration Purposes?Immigration Consequences of Criminal Convictions

No statutory definition

“Because the INA does not define the term “moral turpitude” and legislative history does not

clarify which crimes Congress intended to characterize as turpitudinous, we have concluded that

“the interpretation of this provision [was left] to the BIA and interpretation of its application to

state and federal laws [was left] to the federal courts.” Rodriguez-Castro v. Gonzales, 427 F.3d

316, 320 (5th Cir. 2005)

The BIA has defined “moral turpitude” as encompassing conduct that is “inherently base,

vile, or depraved, and contrary to the accepted rules of morality and the duties owed

between persons or to society in general.” In re Solon, 24 I. & N. Dec. 239, 241–42 (BIA

2007); Garcia-Maldonado v. Gonzales, 491 F.3d 284, 288 (5th Cir. 2007)



• “The violation of statutes which merely license or regulate and impose criminal liability without

regard to evil intent do not involve moral turpitude.” Matter of G (BIA 1956)

• In determining whether an offense involves moral turpitude, a fact finder examines the crime as

defined by the elements in the criminal statute, not the defendant’s actual conduct. Matter

of Short, 20 I&N Dec.136 (BIA 1989). A conviction under a statute in which theft, fraud, or intent to

commit bodily harm is an essential element involves moral turpitude. It is the elements of the

offense that determine whether a conviction is a crime involving moral turpitude, not the name or

designation of the offense. Matter of Balao, 20 I&N Dec. 440 (BIA 1992)



• The BIA will not examine evidence of the defendant’s actual conduct that is outside the “record of

conviction.” Where the defendant had a conviction for “intent to commit a felony upon a minor,” the

BIA held that the offense did not involve moral turpitude even though the INS offered other

evidence that the felony involved a sexual assault. Matter of Short, 20 I&N Dec. 136 (BIA 1989).



• The first approach, known as the categorical approach, assesses whether “the minimum reading

of the statute necessarily reaches only offenses involving moral turpitude.” Amouzadeh v. Winfrey,

(5th Cir. 2006). If so, we end our inquiry there.

• If, however, the statute has multiple subsections or an element phrased in the disjunctive, such

that some violations of the statute would involve moral turpitude and others not, we apply the

modified categorical approach, under which we examine the record of conviction to determine

under which subsection the alien was convicted and which elements formed the basis for the

conviction. Calderon-Dominguez v. Mukasey, 261 F. App’x 671, 673 n.9 (5th Cir. 2008)

(unpublished). After identifying the elements of the particular crime of conviction, we inquire

whether those elements, considered as a whole, constitute a CMT.



• If a multi-sectioned statute includes certain subsections that necessarily involve moral turpitude

and other subsections that do not, then the fact finder will examine the “record of conviction” to

identify the defendant’s conviction. If the “record of conviction” does not establish that the

defendant has a conviction under a subsection that necessarily involves moral turpitude, then the

noncitizen is not inadmissible/deportable for that offense. The record of conviction includes the

charging document, plea agreement, plea colloquy transcript, judgment of conviction, any explicit

factual finding by the judge to which the defendant assented, and sentence. Matter of Vargas-

Sarmiento, 23 I&N Dec. 651 (BIA 2004).

• Example of such a statute is the Texas Penal Code 22.01 (assault) . Gaspar Esparza-Rodriguez

v. Holder (5th Cir. 2012). This case avoids use of a police report as was considered under Silva-

Trevino 24 I&N Dec. 687 (A.G. 2008)

•



Groups of crimes for CMT purposes:

• Crimes vs. the Person: Murder, Voluntary Manslaughter, Sexual Assault

• Crimes involving Fraud: where fraud is an essential element = Always a CMT Jordan v.

DeGeorge, 341 U.S. 223 (1951)

• Theft Offenses: where the intent to permanently deprive the owner of property is an element

= CMT. Matter of De La Nues (BIA 1981).

• Crimes vs. Property: Arson, Burglary if committed where intent is theft or related felony is cmt

• Crimes vs. Gov’t: Perjury, Bribery, Obstruction of Justice, Tax Evasion

• Drug Offenses = Possession offenses are generally not CMT’s. Matter of Abreu-Semino (BIA

1968), exception when had possession with intent to distribute cocaine, where

knowledge/intent is required. Matter of Khourn (BIA 1997)

• DWI/DUI’s generally not CMT, felony DWI could be. Matter of Torres-Varela (BIA 2001)



INA 212(a)(2)(B): Multiple Criminal Convictions

Any alien convicted of 2 or more offenses (other than purely political offenses) regardless of

whether the conviction was in a single trial or whether they arose from a single scheme of

misconduct, for which the aggregate sentences to confinement were 5 years or more is

inadmissible

INA 212(a)(2)(C): Controlled Substance Traffickers

Any alien who the consular officer or the Attorney General knows or has reason to believe-- (i) is

or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in

section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing

aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such

controlled or listed substance or chemical, or endeavored to do so;



INA 212(a)(2)(D): Prostitution

Any alien who has engaged in prostitution within 10 years of the date of application for a visa,

admission, or adjustment of status is inadmissible

INA 212(a)(2)(I): Money Laundering

(i) Any alien who has engaged in money laundering or (ii)is or has been a knowing aider,

abettor, assister, conspirator, or colluder with others in money laundering is inadmissible


Removable/Deportable due to Criminal GroundsImmigration Consequences of Criminal Convictions

INA 237, 8 U.S.C. 1227: Deportable classes include:

• (1) If inadmissible at time of entry or of adjustment of status

• 237(a)(2)(A)(i): Crimes of Moral Turpitude: (1) Any alien who is convicted of a CMT

committed within 5 years (or 10 years for certain green card holders) after admission, and (2)

is convicted of a crime for which a sentence of 1 year or longer may be imposed (Class A

misdemeanor is enough here)

• 237(a)(2)(A)(ii): Multiple criminal convictions: any time after admission is convicted of 2

or more CMT’s, not arising out of a single scheme, regardless of whether they were

confined and regardless of whether the convictions were in a single trial

• 237(a)(2)(A)(ii): Aggravated Felony: convicted of an aggravated felony any time after

admission or an attempt or conspiracy to commit an offense described in this paragraph (INA

101(a)(43)(U).


Removable due to Aggravated FelonyImmigration Consequences of Criminal Convictions

INA 101(a)(43): The term “aggravated felony” includes:

• (A) murder, rape, or sexual abuse of a minor

• (B) illicit trafficking in a controlled substance (defined in section 102 of CSA) or a drug

trafficking crime (defined in section 924(c) of title 18, U.S.C.)

• (C) illicit trafficking in firearms or destructive devises or in explosive materials

• (D) money laundering

• (F) crime of violence for which the term of imprisonment is at least 1 year

• (G) theft offense (including receipt of stolen property) or burglary offense for which the term

of imprisonment is at least 1 year

• (I) offense relating to child pornograpy




• (J) an offense relating to racketeer influenced corrupt organizations, or an offense relating to

gambling offenses, for which a sentence of 1 year imprisonment or more may be imposed

• (M) an offense that involves fraud or deceit in which the loss to the victim or victims

exceeds $10,000

• (Q) an offense relating to a failure to appear by a defendant for service of sentence if the

underlying offense is punishable by imprisonment for a term of 5 years or more

• (R)an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles

the identification numbers of which have been altered for which the term of imprisonment is

at least one year




• (S) an offense relating to obstruction of justice, perjury or subornation of perjury, or

bribery of a witness, for which the term of imprisonment is at least one year

• (T) an offense relating to a failure to appear before a court pursuant to a court order to

answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment

or more may be imposed;


Removable due to Aggravated FelonyImmigration Consequences of Criminal ConvictionsINA 101(a)(43): The term “aggravated felony” includes:

• Crime of Violence: “an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of another. 18 U.S.C. §

16(a). Also includes any felony that by its nature presents a substantial risk that force will be

used against a person or property in the commission of the offense. 18 U.S.C. § 16(b)

• If the relevant criminal statute is plain on its face, our consideration is limited to the elements

necessary to prove a conviction under its terms, and additional evidence indicating the

respondent’s actual conduct is not pertinent .See Matter of Perez-Contrera s, 20 I&N Dec. 615,

618 (BIA 1992)

• Recklessness would not be sufficient

• Burglary of a vehicle IS a ‘crime of violence’, Lopez-Elias v. Reno, 209 F.3d 788, (5th Cir 2000)

• Simple Assault Texas Penal Code Section 22.01 is not a crime of violence since use of force is

not an elementAlimohammad & Zafar, PLLCwww.aandzlegal.com



• Theft Offense: only if 1 year imprisonment is imposed

• Robbery Tx Penal Code Section 29.02, Theft Tx Penal Code Section 31.03

• An offense that involves fraud or deceit in which the loss to the victim or victims exceeds

$10,000

• TX Penal Code Section 35.02 Insurance Fraud


Removable due to Criminal GroundsImmigration Consequences of Criminal Convictions

• INA 237(a)(2)(B): Any alien who at any time after admission has been convicted of a violation (or

conspiracy/attempt) any law or regulation of a state, the U.S. or a foreign country relating to a

controlled substance (as defined section 102 of the CSA) other than a single offense involving

possessions for one’s own use of 30 grams or less of marijuana is deportable.

• 237(a)(2)(C) Certain firearm offenses.-Any alien who at any time after admission is convicted

under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or

carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own,

possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as

defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.



INA 237(a)(2)(E): Crimes of Domestic violence, stalking, or violation of protection order, crimesagainst children and.-

• (i) Domestic violence, stalking, and child abuse.-Any alien who at any time after admissionis convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse,child neglect, or child abandonment is deportable. For purposes of this clause, the term"crime of domestic violence" means any crime of violence (as defined in section 16 of title18, United States Code) against a person committed by a current or former spouse of theperson, by an individual with whom the person shares a child in common, by an individualwho is cohabiting with or has cohabited with the person as a spouse, by an individualsimilarly situated to a spouse of the person under the domestic or family violence laws ofthe jurisdiction where the offense occurs, or by any other individual against a person who isprotected from that individual's acts under the domestic or family violence laws of the UnitedStates or any State, Indian tribal government, or unit of local government.



INA 237(a)(2)(E): Crimes of Domestic violence, stalking, or violation of protection order, crimesagainst children and.-

• (ii) Violators of protection orders.-Any alien who at any time after entry is enjoined undera protection order issued by a court and whom the court determines has engaged inconduct that violates the portion of a protection order that involves protection againstcredible threats of violence, repeated harassment, or bodily injury to the person or personsfor whom the protection order was issued is deportable. For purposes of this clause, theterm "protection order" means any injunction issued for the purpose of preventing violent orthreatening acts of domestic violence, including temporary or final orders issued by civil orcriminal courts (other than support or child custody orders or provisions) whether obtainedby filing an independent action or as a pendente lite order in another proceeding.


PadillaImmigration Consequences of Criminal Convictions

• On March 31, 2010 the U.S. Supreme Court made a precedent decision when it held that

counsel in a criminal matter “must inform her client whether his plea carries a risk of deportation”

as part of an individual’s Sixth Amendment right to counsel. Padilla v. Kentucky, 253 S.W.3d 482

(U.S. 2010). The Supreme Court held the constitutional right to counsel extends to deportation in

immigration matters. This means where a defense attorney fails to advise his client of the

potential deportation consequences of a guilty plea, it may constitute ineffective assistance of

counsel under the Sixth Amendment.

• The 5th Circuit and the Court of Criminal Appeals of Texas have both held the Padilla case is

NOT retroactive. U.S. v. Amer, No. 11-60522 (5th Cir. 2012)


PadillaImmigration Consequences of Criminal Convictions

• Padilla applies in 1. criminal cases, 2. where the criminal attorney’s representation fell below the

objective standard of reasonableness, and 3. where the alien was prejudiced due to this failure

(i.e. the result of the proceeding would have been different).

• To show the criminal attorney’s representation fell below the objective standard of

reasonableness, the alien must show he did not receive certain advisals.

• Where the law clearly states the alien would be deportable, the criminal attorney must inform his

client of deportation consequences. On the other hand, if the law is unclear, typically where a

crime of moral turpitude is involved, the criminal attorney need only advise his client to seek the

assistance of an immigration attorney.


NaturalizationImmigration Consequences of Criminal Convictions

• INA 316(e): One of the 7 requirements is one of good moral character. Officer can look not only

at the 5 years prior to filing but any time prior

• INA 101(f) does not define what is good moral character but what is not good moral character but

also states that anything not listed shall not preclude a finding that for other reasons such person

is or was not of good moral character

• Good rule of thumb: a conviction of any kind or probation during preceding 5 year period could

lead to a finding of the applicant lacking good moral character and a denial of the application


CONTACT USContact Information

Alimohammad & Zafar, PLLC

77 Sugar Creek Center Blvd; Suite 401Sugar Land, Texas 77478

Phone : 281-340-2074

Email : [email protected]

Website : www.aandzlegal.com


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