OVERVIEW OF IMMIGRATION LAW RELATING TO CRIMINAL OFFENSES

1. OVERVIEW OF IMMIGRATION LAW RELATING TO CRIMINAL OFFENSES June 9, 2009

2. The Immigration Definition of Conviction Formal judgment of guilt entered by a court. If adjudication has been withheld, where: • A judge or jury has found the alien guilty, OR • The alien has entered a plea of guilty or nolo contendere OR • The alien has admitted sufficient facts to warrant a finding of guilt AND • The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

3. And Definition of Sentence • Term of imprisonment / incarceration / confinement • Regardless of suspension of the imposition or execution of that imprisonment in whole or part.

4. Immigration Court • Notice to Appear (NTA) • Master Calendar • Bond Hearing • Individual Hearing on Relief Applications

5. Criminal Grounds of Removability • Inadmissible Aliens – Aliens who cross the border illegally or who are seeking admission. • Deportable Aliens – Resident aliens and visitors such as students and tourists.

6. Inadmissible Aliens • Crimes Involving Moral Turpitude (CIMTs) • Contrary to moral laws, base or vile, evil intent. • Examples: • Theft • Fraud • NOT CIMTs: • DWI • Involuntary Manslaughter • Petty Offense Exception

7. Inadmissible Aliens • Controlled Substances • Need to know the substance. • Must be in the federal Controlled Substances Act.

8. Inadmissible Aliens • Multiple Criminal Convictions • Two or more offenses. • Total sentences to confinement must be 5 years or more. • Not limited to CIMTs. • Felony DWI may be used here.

9. Inadmissible Aliens • Controlled Substances Traffickers • Reason to believe a trafficker. • No conviction necessary. • (Not often seen, except at the border.)

10. Inadmissible Aliens • Prostitution • Requires at least 2 convictions. • (Also a CIMT.)

11. Deportable Aliens • CIMT • Must be convicted within 5 years of admission AND • The crime must carry a potential sentence of 1 year or more. (Any Texas felony or misdemeanor A, but not misdemeanor B or C.) • Bond Issue – While most criminal grounds make an alien mandatory, for this ground the actual sentence must be for 1 year or more.

12. Deportable Aliens • Multiple Criminal Convictions • 2 or more CIMTs. • At any time after admission. • Not the same scheme of misconduct. • Can be felonies, or any level misdemeanor.

13. Deportable Aliens • Aggravated felonies • Very little relief available. • Non-resident aliens may be removed without referral to an Immigration Court. • Commonly Seen Aggravated Felonies: • Murder, Rape, Sexual Abuse of a Minor. (Deferred adjudication is sufficient.) • Trafficking in a controlled substance: Delivery of a controlled substance, possession with intent to deliver, or 2 or more possessions.

14. Deportable Aliens • Aggravated Felonies Continued • Crimes of Violence • 18 U.S.C. 16(a) (element of the use of physical force) and (b) (felony and by its nature involves a substantial risk of physical force). • Need a 1-year sentence. (Not deferred adjudication.) • Most likely requires an intentional act. • “Intentionally, knowingly, and/or recklessly” in an indictment creates issues in immigration court.

15. Deportable Aliens • Aggravated Felonies / Crimes of Violence • Misdemeanor Assault in Texas is not a crime of violence under 5th Circuit law. • DWI is not a crime of violence. • UUMV is a crime of violence. (Felony, substantial risk.)

16. Deportable Aliens • Aggravated Felonies • Theft or Burglary • Requires a one-year sentence. • Fraud where loss to the victim exceeds $10,000 • Commercial bribery, counterfeiting, forgery • Requires a one-year sentence. • Obstruction of justice, perjury • Requires a one-year sentence. • Attempt or conspiracy to commit any other aggravated felony.

17. Deportable Aliens • Controlled Substances • Other than 1 possession of 30 grams or less of marijuana. • “Relating to a controlled substance” – simulated controlled substance • Drug abusers and addicts. (Almost never used.)

18. Deportable Aliens • Firearms Offenses • Very important to have the type of weapon specified on the indictment and/or judgment for immigration purposes.

19. Deportable Aliens • Crimes of Domestic Violence, Stalking, or Violation of a Protective Order, Child Abuse • “crime of domestic violence” involves a “crime of violence” under 18 USC 16 • felony assault of a family member in Texas • Important to indicate on indictment and judgment that the conviction involved a family member • Injury to a child is child abuse.

20. Relief from Removal • Asylum, Withholding, Convention Against Torture • Some criminal bars, but all are eligible for CAT. • Adjustment of Status / Re-adjustment • Some criminal bars for drug crimes but most CIMTs may be waived. • Cancellation • For resident aliens. • Aggravated felony is a bar. • For aliens who entered without inspection. • Any criminal ground of removability bars them.

21. Relief from Removal • Voluntary Departure • 212(c) – For pre-1997/1996 convictions. • NACARA Cancellation • TPS – A stay of removal.

22. Vacating the Conviction • What is the basis? • It is vital for the reason be spelled out in the motion to vacate and/or order vacating the conviction.

23. Reducing / Reforming Sentences • For immigration purposes, it will be the reformed sentence that is considered. • Note that in certain circumstances, the alien may benefit from violating his probation.

24. DHS Contacts • Gary Goldman – Chief Counsel • Don Cassidy – Deputy Chief Counsel • Monica Thompson-Guidry – Deputy Chief Counsel • Mark Evans – Senior Attorney • Erica McGuirk – Senior Attorney • There is also a duty attorney assigned daily. • 281/931-2046