Immigration Consequences of Criminal Convictions Rehan Alimohammad, Partner Alimohammad & Zafar, PLLC

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1 Immigration Consequences of Criminal Convictions Rehan Alimohammad, Partner Immigration Law Corporate Law Tax Law Estate Planning Family Law Litigation

2 Speaker Our Team Rehan Alimohammad, an Attorney and CPA, received his Bachelor s Degree from the University of Texas at Austin and his law degree from the University of Houston. He has written over 200 articles on immigration topics and has also given over 100 seminars on immigration topics. He has organized over 100 legal clinics and free wills clinics throughout the state of Texas. In recognition of his efforts he was named one of the 5 outstanding young Texans by the Texas Junior Chamber of Commerce in Rehan Alimohammad PARTNER Practice Areas: Immigration Law, Tax Law, He has a bi-weekly radio show on 1460 A.M. in Houston, Texas and a weekly article in a community paper discussing the latest in immigration developments 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 contact information is or

3 Conviction for Immigration Purposes 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

4 Conviction for Immigration Purposes The Immigration and Nationality Act (INA), defines the term conviction (INA 101(a)(48) as follows : (A) The term conviction means, with respect to an alien, a formal judgment of guilt of the alien 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 or nolo 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's liberty to be imposed.

5 Conviction for Immigration Purposes The legislative history of the definition of conviction shows that Congress intentionally broadened the 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)

6 Conviction for Immigration Purposes It is important to remember also that the definition requires some sort of penalty or punishment to be imposed by the court for deferred adjudications to constitute conviction. Punishment may include any 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 that has been expunged, set aside, or the equivalent.

7 Post-Conviction Relief May Still be a Conviction under INA 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 (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);

8 Post-Conviction Relief 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)

9 Inadmissibility vs. Removability To be Inadmissible means one does not meet the standards under INA 212, 8 U.S.C 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 and could be placed in Removal Proceedings

10 Inadmissible due to Criminal Grounds INA 212(a)(2)(A) (i) Any alien (includes all but Citizens) convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (I) a crime involving moral turpitude (CMT), or attempt or conspiracy to commit such crime or (II)A violation of (or conspiracy or attempt) any law or regulation of a State, the U.S. or a foreign country relating to a controlled substance (per Section 102 of the Controlled Substances Act 21 USC 802) Is inadmissible

11 Exceptions to Criminal Grounds of Inadmissibility 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 was committed (and the alien released from any confinement) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or (II) The Petty Offense Rule : the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment 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 of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

12 Inadmissible due to Criminal Grounds Texas Penal Code examples: Class A Misdemeanor for 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.

13 What is a CMT for Immigration Purposes? 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, (BIA 2007); Garcia-Maldonado v. Gonzales, 491 F.3d 284, 288 (5th Cir. 2007)

14 What is a CMT for Immigration Purposes? 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)

15 What is a CMT for Immigration Purposes? 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).

16 What is a CMT for Immigration Purposes? 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.

17 What is a CMT for Immigration Purposes? 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 (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)

18 What is a CMT for Immigration Purposes? 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)

19 Inadmissible due to Criminal Grounds 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;

20 Inadmissible due to Criminal Grounds 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

21 Removable/Deportable due to Criminal Grounds 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).

22 Removable due to Aggravated Felony 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

23 Removable due to Aggravated Felony INA 101(a)(43): The term aggravated felony includes: (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

24 Removable due to Aggravated Felony INA 101(a)(43): The term aggravated felony includes: (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;

25 Removable due to Aggravated Felony INA 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 is not a crime of violence since use of force is not an element

26 Removable due to Aggravated Felony INA 101(a)(43): The term aggravated felony includes: Theft Offense: only if 1 year imprisonment is imposed Robbery Tx Penal Code Section 29.02, Theft Tx Penal Code Section An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 TX Penal Code Section Insurance Fraud

27 Removable due to Criminal Grounds 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.

28 Removable due to Criminal Grounds INA 237(a)(2)(E): Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and.- (i) Domestic violence, stalking, and child abuse.-any alien who at any time after admission is 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 title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

29 Removable due to Criminal Grounds INA 237(a)(2)(E): Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and.- (ii) Violators of protection orders.-any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

30 Padilla 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 (5th Cir. 2012)

31 Padilla 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.

32 Naturalization 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

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