Crimes & Punishment: How do Misdemeanors Affect Immigration Status?

Crimes & Punishment:How do Misdemeanors Affect Immigration Status? Fennemore Craig, P.C. Presented by: 1

Fennemore Craig, P.C. 2 Source: The Campus Safety and Security Data Analysis Cutting Tool http://www.ope.ed.gov

Fennemore Craig, P.C. Deportable or Inadmissible? • Deportable: student has been legally admitted to U.S. after having been inspected at an official port of entry but has violated conditions of admission. • Inadmissible: student who is seeking to be admitted to the U.S. but is ineligible because of criminal convictions, medical reasons, unauthorized employment or status violations. • Applies after travel abroad, when applying for a new visa abroad, and when applying for a green card. 3

Fennemore Craig, P.C. Common Grounds of Deportability for International Students CIMT committed within 5 years of date of admission for which a sentence of 1 year or longer may be imposed Two CIMTs not arising out of a single scheme Aggravated Felony Conviction relating to controlled substance (except for single offense of simple possession of 30 grams or less of marijuana) Conviction relating to firearms Domestic violence; stalking; or child abuse, neglect or abandonment False claim to citizenship* Unauthorized employment Overstay of F-1 visa *Based on conduct - does not require a formal conviction. 4

Fennemore Craig, P.C. Common Grounds of Inadmissibility For International Students Convicted of, or formally admits having committed, a CIMT (except for single offense with potential sentence of 365 days or less, and actual sentence of 180 days or less)* Violation of any law relating to a controlled substance* Two or more convictions with aggregate sentence of 5 years Reason to believe drug trafficker or assisting drug trafficker* False Claim to U.S. citizenship* Unauthorized employment** Overstay of F-1 visa** *Based on conduct - does not require a formal conviction. **If the individual does not leave the U.S. after violation, may still be admissible if married to USC. 5

Fennemore Craig, P.C. Deportability: Crimes Involving Moral Turpitude CIMT committed within 5 years of date of admission for which a sentence of 1 year or longer may be imposed* CIMT: “inherently base, vile or depraved,” “reprehensible,” or conduct that violates norms and shocks the public conscience. *Note that there is a Petty Offense Exception for Inadmissibility (single CIMT where maximum potential sentence is 365 days or less and actual sentence is 180 days or less) 6

Fennemore Craig, P.C. Deportability: Crimes Involving Moral Turpitude Includes: A minimum of intentional or reckless conduct Offenses with an element of fraud DUI with actual knowledge that license was suspended Theft with intent to permanently deprive Most aggravated assaults (deadly weapon, intent to cause great bodily injury) Sex offense with element of assault, abuse or lewdness Does not include: A single CIMT with a maximum potential sentence of less than one year A single CIMT committed over 5 years after admission A crime requiring only negligence (as opposed to intent or recklessness) Simple DUIs Theft with intent to temporarily deprive (joy ride) Simple assault/battery DV assault/battery committed with offensive touching 7

Fennemore Craig, P.C. Example: CIMT David is an athlete who lives in an apartment on campus. Some teammates who are minors came to his apartment with alcohol and started drinking. Campus security came and then the police were called. He received a citation for allowing minors to drink on private property. Potential grounds for deportability: CIMT: no Controlled substance: no Potential grounds for inadmissibility: same Result: no immigration consequences. 8

Fennemore Craig, P.C. Example: CIMT Stephen was away from campus at a club, became drunk, and while alone relieved himself in the shadow of a building. Police cited him for urinating in public. He went to court, pled guilty and paid fine. Potential grounds for deportability: CIMT: no Controlled substance: no Potential grounds for inadmissibility: same Result: no immigration consequences.. 9

Fennemore Craig, P.C. Example: CIMT Jennifer celebrated after taking her last final and had a few drinks at a bar close to campus. She left the bar and started to drive home when she was arrested for a simple DUI. Potential grounds for deportability: CIMT: not unless there is an aggravating factor, such as driving on a suspended license. A DUI is not a CIMT. Controlled Substance: if she was under the influence of drugs, as opposed to alcohol, then maybe Potential grounds for inadmissibility: Same Result: probably no immediate immigration consequences, but note that while this will not make her deportable nor inadmissible, DHS has broad discretion to deny entry on a visa for any reason, and this may be a problem when returning from travel abroad. 10

Fennemore Craig, P.C. Example: CIMT Vladmir wrote a bad check for $150. He was charged with a misdemeanor Attempted Fraudulent Use of Check which carries a potential one year sentence, but he ended up receiving probation. Potential grounds for deportability: CIMT: likely, as it contains element of fraud and has a potential sentence of one year Aggravated felony (fraud): no, because it did not involve a loss of $10,000 or more Aggravated felony (forgery): no, because he received probation and won’t serve actual sentence of one year Potential grounds for inadmissibility: CIMT: yes, but probably meets petty offense exception Result: probably deportable. 11

Fennemore Craig, P.C. Ground of Deportability: Two CIMTS 2 CIMTs not arising out of a single scheme (can be any time after admission) Crimes committed on the same day and alleged in the same criminal charging document will generally be considered part of a single scheme. 12

Fennemore Craig, P.C. Ground of Deportability: Aggravated Felony Has the most serious immigration consequences – makes student ineligible for almost all forms of relief, strips the immigration judge of discretion, and triggers a lifetime bar to future immigration status. Most common Aggravated Felonies: Murder, rape, sexual abuse of a minor Trafficking in a controlled substance Certain firearm/explosives offenses Crime of violence with actual sentence of one year or more Theft, burglary, receiving stolen property with actual sentence of one year or more Fraud, money laundering with loss of $10,000 Forgery, counterfeiting with actual sentence of one year or more Obstruction of justice with actual sentence of one year or more Running a prostitution business Alien smuggling Attempt or conspiracy to commit any of the above 13

Fennemore Craig, P.C. Ground of Deportability: Aggravated Felony Crime of Violence: • any offense with elementof use, attempted, or threatened use of physical force against person or property of another • Ex: battery, assault, vandalize property or • any other offense that is a felony that by its nature involves substantial risk that physical force against the person or property of another may be used in the course of committing the offense • Ex: felony burglary of a dwelling Crime of Violence Examples: • Arson in First Degree • Assault of Public Safety Personnel • Assault with Deadly Weapon • Carjacking • Kidnapping • Manslaughter (First Degree) 14

Fennemore Craig, P.C. Example: Aggravated Felony Thomas stole computers, Ipods, and other electronic equipment while on campus during Christmas break. He later “test drove” a car from a dealership and did not return. He was arrested for theft and was detained at an ICE facility. Potential grounds for deportability: CIMT: yes, if theft with intent to permanently deprive 2 CIMTs not arising out of a single scheme: possibly the same scheme, but if not, there are 2 CIMTs Aggravated Felony (theft): theft with intent to permanently deprive – but may be able to argue intent to return the car (joy ride). Also need actual sentence of 1 yr. or more. Potential grounds for inadmissibility: CIMT (petty offense?) Two convictions with aggregate sentence of 5 years: depends on actual charges and jurisdiction Result: likely deportable and inadmissible. 15

Fennemore Craig, P.C. Example: Aggravated Felony Pierre went off campus to a party and became intoxicated, returned to campus and allegedly choked a female student. He was arrested for physical assault. Potential grounds for deportability: CIMT: probably not unless aggravated assault Crime of Violence w/ sentence of one year or more: would probably need a deadly weapon Potential grounds for inadmissibility: CIMT: probably not, but if it is may be eligible for petty offense exception Result: probably no immigration consequences, but depends on conviction. 16

Fennemore Craig, P.C. Example: Aggravated Felony Robert was accused of rape by a female student. He was required to leave campus housing. A detective interviewed him, but he was not arrested pending investigation. Potential grounds for Deportability: CIMT: yes if convicted Aggravated felony rape: yes if convicted Potential grounds for inadmissibility: CIMT: yes if convicted Result: If convicted of rape, will be both deportable and inadmissible. 17

Fennemore Craig, P.C. Example: Aggravated Felony Paola got a job on campus in the bookstore, and has been accused of stealing $1,000 in merchandise since she started working. She is charged with theft. Potential grounds for Deportability: CIMT: yes if intent to permanently deprive Aggravated felony theft: yes if convicted Potential grounds for inadmissibility: CIMT: yes if convicted Result: If convicted of rape, will be both deportable and inadmissible. 18

Fennemore Craig, P.C. Ground of Deportability: Controlled Substance Defined as a conviction for “a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana) Includes: Possession of paraphernalia Simple possession of any drug (except for first time possession of 30 grams or less of marijuana) Sale, transport for sale, possession for sale, or other drug trafficking offense (also an aggravated felony) Possession of look-alike substance Any other offense “relating to” a controlled substance Does not include: A conviction for a single offense of 30 grams or less of marijuana for one’s own use (but this can affect travel – up to officer’s discretion) An offense involving a drug not listed on the federal schedule of controlled substances 19

Fennemore Craig, P.C. Example: Controlled Substance Sandeep is overwhelmed by the stresses of college life and decides to unwind one evening by smoking a small amount of marijuana. He is caught by an off-duty police officer and offered to a plea to misdemeanor simple possession of marijuana. Grounds for Deportability: CIMT: simple drug possession is not a CIMT Controlled substance: depends on amount - there is an exception for a single offense of 30 grams or less of marijuana Potential grounds for inadmissibility: CIMT (petty offense exception?) Controlled substance: may be waiver available for possession of 30 grams or less of marijuana Result: Probably not deportable if 30g or less, however, marijuana exception does not exist in the controlled substance ground for inadmissibility. A waiver is available, but it requires a showing of extreme to a U.S. citizen of LPR family member, and Sandeep has no family here. If he leaves the U.S., he will not be admitted again. Needs to try to plead to a non-drug offense. 20

Fennemore Craig, P.C. Ground of Deportability: Conviction Relating to Firearms Defined as the conviction of “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.” Many statues refer to a “deadly weapon” or “dangerous instrument”. Good rule of thumb is: Gun = deportable Knife = not deportable 21

Fennemore Craig, P.C. Example: Conviction Relating to Firearms Benjamin attended a gun show and purchased a firearm from an individual’s car and placed it in his trunk. As he drove away, police arrested him for possessing a firearm with a non-immigrant visa. Potential grounds for deportability: Conviction relating to firearms: yes Potential grounds for inadmissibility: none Result: deportable. 22

Fennemore Craig, P.C. Ground of Deportability: Domestic Violence Must meet definition of “crime of violence,” which requires the “use, attempted use, or threatened use of physical force” or a felony that has a substantial risk that physical force will be used. Includes: An offense under state DV statute that has an element of intentional force A DV offense with a reckless mens rea (in some circuits) Does not include: A DV offense with a reckless mens rea (in some circuits) A negligent mens rea Offense committed against property Battery/assault committed with offensive touching False imprisonment committed by deceit 23

Fennemore Craig, P.C. Example: Domestic Violence Jim, newly married, gets into an argument with his wife after he learns he was not accepted into law school. At some point he grabs her wrist causing her to lose her balance and fall. He is convicted of a misdemeanor, domestic violence charge of assault and disorderly conduct. No jail time, but there would be probation, possibly of one year. Potential grounds for deportability: CIMT: probably not a CIMT Crime of Violence: probably not, plus there must be an actual sentence of one year or more Domestic Violence: probably not, must meet definition of “crime of violence” Potential grounds for inadmissibility: CIMT: probably not, but he appears eligible for petty offense exception Result: Probably no immigration consequences 24

Fennemore Craig, P.C. Ground of Deportability: False Claim to U.S. Citizenship For any purpose or benefit A conviction is not required 25

Fennemore Craig, P.C. Example: False Claim to U.S. Citizenship Erica is walking on campus when she passes a voter registration booth. The booth personnel ask he if she’s registered to vote. She says she is not because she is not a U.S. citizen. That’s ok, they say, she can just check the U.S. citizen box and it will be fine – people do it all the time. Besides, if she just votes in local city elections it’s no big deal. She decides to register. Potential grounds for deportability: False claim to U.S. citizenship: yes, particularly if she knowingly checked the U.S. citizen box and if the form indicated that it was under penalty of perjury. Unlawful voting Potential grounds for inadmissibility: Same Result: deportable and inadmissible. 26

Fennemore Craig, P.C. Ground for Deportability: Overstays & Unauthorized Employment Student remains in U.S. beyond authorized period Student works without a work permit or work visa 27

Fennemore Craig, P.C. Example: Overstays & Unauthorized Employment Mounika was discovered working at a kiosk in the mall during her first semester of her freshman year. Potential grounds for deportability: Unauthorized employment: as a freshman, Mounika would not have OPT, and therefore off-campus employment is prohibited. Potential grounds for inadmissibility: Same Result: deportable and inadmissible (unless married to USC). 28

QUESTIONS Fennemore Craig, P.C. 29

Crimes & Punishment: How do Misdemeanors Affect Immigration Status?