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

Mark EvansJune 9, 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.

Mark EvansJune 9, And Definition of Sentence  Term of imprisonment / incarceration / confinement  Regardless of suspension of the imposition or execution of that imprisonment in whole or part.

Mark EvansJune 9,  Notice to Appear (NTA)  Master Calendar  Bond Hearing  Individual Hearing on Relief Applications Immigration Court

Mark EvansJune 9, 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.

Mark EvansJune 9, 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

Mark EvansJune 9, Inadmissible Aliens  Controlled Substances  Need to know the substance.  Must be in the federal Controlled Substances Act.

Mark EvansJune 9, 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.

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

Mark EvansJune 9, Inadmissible Aliens  Prostitution  Requires at least 2 convictions.  (Also a CIMT.)

Mark EvansJune 9, 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.

Mark EvansJune 9, 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.

Mark EvansJune 9, 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.

Mark EvansJune 9, 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.

Mark EvansJune 9, Deportable Aliens  Aggravated Felonies / Crimes of Violence  Misdemeanor Assault in Texas is not a crime of violence under 5 th Circuit law.  DWI is not a crime of violence.  UUMV is a crime of violence. (Felony, substantial risk.)

Mark EvansJune 9, 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.

Mark EvansJune 9, 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.)

Mark EvansJune 9, Deportable Aliens  Firearms Offenses  Very important to have the type of weapon specified on the indictment and/or judgment for immigration purposes.

Mark EvansJune 9, 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.

Mark EvansJune 9, 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.

Mark EvansJune 9, Relief from Removal  Voluntary Departure  212(c) – For pre-1997/1996 convictions.  NACARA Cancellation  TPS – A stay of removal.

Mark EvansJune 9, 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.

Mark EvansJune 9, 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.

Mark EvansJune 9, 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/