Attorney & Court Updates

Disclaimer

The information contained in this article is intended to educate members of the public generally and is not intended to provide case-specific legal advice or solutions to individual problems.  Readers are not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel who is familiar with the Immigration Laws before relying on the information contained in theses articles. 

Each Immigration case is different, based on the circumstance, rights of the alien and the location of the DHS (INS) office and immigration judge.  Please do not take the following articles and court decisions, as possible final answer to your case, as they may vary form the examples.

• Things you should know about immigration and crimes.

           by Brian K. Bates, Houston, TX

• How to locate immigration information on government web sites.

           by Barry L. Frager, Memphis, TN

• Can immigration arrest me if I have not been convicted of a crime?

           by Barry L. Frager, Memphis, TN

• Board of immigration appeals - Precedents and related decisions.

           BIA April 12, 2005

THINGS YOU SHOULD KNOW ABOUT IMMIGRATION AND CRIMES

 By Brian K. Bates

Quan, Burdette & Perez, P.C.

5177 Richmond Avenue Suite 800 Houston, TX 77056 Tel (713) 625-9200

www.quanlaw.com

I. INTRODUCTION

Let's begin with two simple facts: First, many people residing in the United States are not United States citizens. That is why immigration attorneys call earns a living. Second, many people residing in this country occasionally run afoul of its criminal laws. That is why criminal defense attorneys can earn a living. Sometimes, these two groups intersect such that immigration attorneys may find clients accused or even convicted of crimes, and criminal defense attorneys may have clients who are not citizens. Worlds collide. Chaos threatens. Things --often very bad things --happen.

For the most part, the criminal justice system is unconcerned with the citizenship of its customers. Citizens and immigrants are sent to jail without distinction. The criminal defense attorney can therefore manage to perform his or her function with knowing much immigration law. The immigration legal system however, places very significance criminal conduct such that the "civil" immigration consequences €“deportation or removal, permanent exile from the United States, denial of any opportunity to obtain or preserve legal status, etc. --­ are frequently far more severe than the harshest possible criminal sentence. Ask yourself: €œWhich would you rather endure, a year in a U.S. jail, or the rest of you life across the world, with no chance to return to your family, home and job in the United States?"

Since the immigration consequences are so severe, both the immigration attorney and the criminal defense practitioner should be aware of those consequences. In some cases, of course, it will not be possible to change the outcome of the criminal trial, nor the immigration proceedings that follow. In many others, however, tragedy may be prevented if the defense attorney and the client are simply aware of the immigration issues. Immigration and criminal defense lawyers can work together to anticipate and prevent unjust results. This paper intends a modest start. Some of the information will be very basic for immigration attorneys, because it is being written from the perspective of an immigration attorney speaking to other attorneys who may have less familiarity with the Immigration and Nationality Act.

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*BRIAN K. BATES practices Immigration and Nationality law with the Houston, Texas firm of QUAN, BURDETTE & PEREZ, P.C. 5177 Richmond Avenue Suite 800 Houston, TX 77056 Tel. (713) 625-9200.  He received his undergraduate and legal education at Southern Methodist University (BS 1976 [Political Science], JD 1979) .He has been Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization since 1984, and served for many years on the Board's Immigration and Nationality Law Exam Commission. He is the author of "Good Ideas Gone Bad: Plea Bargains and Resident Aliens, " 66 TEXAS BAR JOURNAL 878 (November 2003), "A Brief Tour of Wonderland: A Practical Introduction to Exclusion Proceedings, " 90-IMMIGRATION BRIEFINGS (January 1990), and Co-author with B. Hake of €œTale of Two Cites: Due Process and the Plenary Power Doctrine, "92-4 IMMIGRATION BRIEFINGS (April 1992). He is a past Chair of the Texas Chapter, American Immigration Lawyers Association (1993 J, i94), and the Winner of two AILA Texas Chapter Litigation Awards (1988, 1996). He received the Sam Williamson Mentor Award from AILA in June

1998. He is listed in the publications Best Lawyers in America, and Texas Super Lawyers.

 II. BACKGROUND INFORMATION.

Before proceeding, it would be useful to settle some basic terminology. The law defines an "alien" as anyone who is not a citizen or national of the United States (the distinction between a "citizen" and a "national" is subtle, and of no relevance to this discussion). Aliens may generally be divided into two groups: those with permanent legal status in the United States, and those without. Those who are entitled to reside and work here permanently are called "lawful permanent residents" or "LPR's". The card that evidences LPR status is commonly called a "green card," although it has not been green for over  years.

After residing in the U.S. for a certain period of time (usually five years after receiving LPR status), an otherwise eligible immigrant may apply to become a United States citizen through a process called "naturalization."

Aliens who are not LPR's may be in the United States legally in a temporary or "nonimmigrant" visa status. Common examples of nonimmigrant categories include tourist visas and border crossing cards, student visas, and several types of temporary worker visas. And, of course, many aliens, especially in the border areas, may be here illegally without any status.

Criminal conduct may be relevant to a non-citizen in several ways. For an alien who is not an LPR, a conviction will almost certainly result in deportation or removal, and even an "admission of the essential elements" of certain offenses may prevent them from ever receiving permanent resident status. For an LPR, convictions of certain offenses will result in deportation or removal. At the very least, a conviction may prevent an otherwise qualified permanent resident from becoming a citizen.

A. Statutory References.

Analyzing a criminal/immigration problem is to a very great extent a function of the interplay of several statutes, all of which must be consulted and cross-checked. The criminal grounds that will make an arriving alien inadmissible are found at INA §212(a)(2). 8 U.S.C. § 1182(a)(2). The criminal grounds that will make an alien already admitted deportable are found at INA §237(a)(2). 8 U.S.C. §1227(a)(2). The particularly onerous category of "aggravated felony" is defined at INA §101(a)(43). 8 U.S.C. §1101{a)(43). Finally, many immigration­ related applications require a showing of" good moral character."  The statutory definition of "good moral character" is found at INA §101(f). 8 U.S.C. §1101(f).

There are generally five categories of criminal offenses that will render an arriving alien inadmissible to this country:

(I) crimes involving moral turpitude [INA §212(a)(2)(A)(i)(I);

(2) controlled substance offenses [INA §212(a)(2)(A)(i)(ll)];

(3) any combination of two or more offenses that results in an aggregate sentence of five years, regardless of whether the individual crimes themselves would constitute a ground of inadmissibility [INA §212(a)(2)(B)];

(4) prostitution and commercialized vice [INA §212(a)(2)(D)]; and 

(5) money laundering [INA §212(a)(2)(I)]. Note that some of these offenses render an alien inadmissible even if there is no conviction; he or she need only admit the essential elements of the offense or, in the case of drug traffickers, the Government need only have "reason to believe." INS §212(a)(2)(A), (C).

There are essentially five classes of criminal offenses that commonly constitute grounds of deportability:

(1) crimes involving moral turpitude [INA §237(a)(2)(A)(i) and (ii)];

(2) offenses relating to controlled substances [INA §237(a)(2)(B)];

(3) offenses relating to firearms [INA §237(a)(2)(C)];

(4) offenses relating to domestic violence [INA §237(a)(2)(E)]; and

(5) "aggravated felonies" as defined in §101(a)(43) of the Immigration and Nationality Act. INA   §237(a)(2)(A)(iii).

There is, of course, considerable overlapping of these categories, all of which may be found in INA §237(a)(2). 8 U.S.C. §1227(a)(2).

Finally, criminal conduct may affect the issue of good moral character in several ways. Essentially, any criminal offense that renders an alien inadmissible or deportable will also preclude a finding of good moral character if it takes place during the period for which good moral character is required (which varies depending upon the application). INA §101(f)(3), 8 U.S.C. §1101(f)(3). Conviction for an aggravated felony is a permanent bar to good moral character INA §101(t)(8). Imprisonment for an aggregate of 180 days or more during the specified period will preclude a finding of good moral character, regardless of the nature of the offense or offenses and whether they have any other effect under the Immigration and Nationality Act. INA §101(f)(7), 8 U.S.C. §1101(t)(7).

A. Deportation or Removal Proceedings

Proceedings to deport or exclude an alien are conducted before an Immigration Judge, an administrative adjudicator employed by the Executive Office for Immigration Review (EOIR), a small agency within the Department of Justice. While great strides have been made in recent years to make the proceedings more formal and fair, deportation or removal proceedings, remain very informal in comparison to a criminal trial. 

1. Nature of the Proceedings

There is no jury in Immigration Court proceedings: the Immigration Judge is empowered to make both findings of fact and conclusions of law. The Strict rules of evidence do not apply, and hearsay is routinely admitted. Further, the Supreme Court has repeatedly held that deportation proceedings are civil in nature, and that the constitutional safeguards available to criminal defendants --such as protection against unlawfully seized evidence and ex post facto application of new legislation­ do not apply. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032

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1 However, this applies only to aggravated felony convictions issued on or after November 29, 1990. 8 CFR §316.10(b )( I )(ii). 

(1984); Galvan v. Press, 347 U.S. 522 (1954). ;

Essentially, the only constitutional right that an alien possesses is the right to a "fundamentally fair" expulsion hearing. Arid what passes as "fundamentally fair" in Immigration Court would shock most attorneys practicing in other areas of the law.

Prior to April 1, 1997, there were two types of expulsion proceedings-"deportation" and "exclusion" -depending upon whether the alien had "entered" the United States or was applying for admission. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"), however, erased the procedural distinctions between deportation and exclusion proceedings. Effective for proceedings commenced on or after April 1, 1997, IIRIRA combined the two into what is now called "removal proceedings."

A "removal hearing" has been defined as "a court procedure that makes a determination on whether an alien, who is subject to deportation or removal, may be admitted or removed from the United States." Austin T. Fragomen, Jr., et al., IMMIGRATION LEGISLAT0N HANDBOOK (2000). As will be seen, however, an alien with a criminal conviction is usually "subject to deportation or removal," and there is little "whether" for an Immigration Judge to "determine!" 

2. How the Proceedings "Proceed"

One thing must be clearly understood: criminal cases are in no way relit gated in Immigration Court. An Immigration Judge will not go behind a criminal conviction, nor question the underlying sufficiency of it. Matter of Roberts, 20 I. & N. Dec. 294 (IA 1991). Submission of a certified copy of the conviction generally constitutes the entire evidentiary portion of the deportation hearing. Whatever is said in that certified copy is conclusively proven in deportation proceedings.

It therefore does not matter what the alien did or did not do - the only thing that matters is what the judgment says he or she did. Deportability becomes a pure question of law: whether the judgment submitted qualifies as a "conviction," and whether the offense qualifies as one of the deportable categories contained in the Immigration and Nationality Act.

B. Relief from Removal.                                                

A deportation or removal hearing, much like a criminal trial, has two parts. The first part is to determine the issue of deportability or (in the case of an arriving alien) inadmissibility. This is comparable to the guilt or innocence phase of a criminal, trial. The alien (called the "Respondent") is called upon to plead to the charges on the charging document. If any of the charges are denied, a hearing is conducted to determine whether the Respondent is deportable. If deportability is based upon a criminal conviction, documentary evidence of the conviction submitted by the prosecuting attorney from the Department of Homeland Security ("DHS") is usually the total extent of the evidentiary "hearing," as noted above.

If the Respondent is found deportable, the second phase of the hearing is to determine whether he or she must be deported or whether there is some form of relief from deportation available. This is comparable to the punishment phase of a criminal trial. Some examples of relief include asylum, "cancellation of removal," and various discretionary waivers of deportability or inadmissibility. 

All the forms of relief from removal, the various statutory grounds of eligibility and discretionary factors, is a topic far too complicated for a paper like this to provide even a smattering of coverage. Criminal defense practitioners are therefore encouraged to consult an experienced immigration attorney before representing a non-citizen client. Suffice to say for present purposes that where the "INA " provides no relief from removal, as is often the case where deportability is based upon criminal conduct, both phases of the proceedings may be completed in as little as five minutes. The DHS attorney submits an authenticated copy of the criminal judgment, that judgment renders the Respondent deportable and ineligible for any relief, and "No more America for you, Jack!"  

III. The Seven Things Everyone Should Know.

George Carlin once had a great comedy routine about the "Seven words you cannot say on television."  Well, I hereby offer my thoughts on the "seven things everyone should know about crimes and immigration." Now that we have established some context for the discussion that follows, here are the Seven Things:

A. Anyone Who is Not Citizen Can Be Deported.

Never assume that a client is a citizen just because the have been here virtually all their life. Many LPR' s came as children and have never become United States citizens through naturalization. Never assume that a client won't be deported (the Author prefers the old term, as being less euphemistic and more honest than the newer term "removed") just because he or she has been an LPR for 30 years and the criminal offense charge seems comparatively minor. Unless and until an alien legally obtains United States citizenship, a criminal offense can and frequently does result in deportation. Believe it.

This is especially true of offenses classified as aggravated felonies under INA §101(a)(43). An alien convicted of an "aggravated felony" is deportable and ineligible for most forms of relief, including cancellation of removal, asylum, or voluntary departure. Aggravated felony convictions are therefore most to be avoided, if at all possible. Unfortunately, this is difficult because many of the offenses do not seem "aggravated" and are not "felonies."

For example: Any theft offense with a sentence of at last a year is an "aggravated felony." INA §101(a)(43)(G). Likewise, any "crime of violence" with a sentence of a year is considered an aggravated felony. INA §101(a)(43)(F). Therefore, a misdemeanor conviction for theft or assault, with a sentence of one year, is an aggravated felony. 

B. A Deferred Adjudication is a Conviction.

Many immigration and criminal defense attorneys are now aware of this, but it bears repeating: a deferred adjudication is considered a "conviction" for immigration purposes. This was not the case prior to 1996. See, e.g., Matter of Garcia, 16 I&N Dec. 270 (BIA 1985), Martinez-Montoya v.1NS, 904 F.2d 1018 (5th Cir. 1990). 

In 1996, however, IIRIRA added to the INA for the first time a statutory definition of "conviction." INA §101(a)(48). That definition has two components. A "formal judgment of guilt" entered by a court will always qualify as a conviction. INAI§101(a)(48)(A). However, a conviction can also exist where "adjudication of guilt has been withheld" so long as there has been a finding of guilt or a plea or guilty or nolo contendere and the court has imposed some restraint upon the alien's liberty. INA §101(a)(48)(A)(i) and (ii).

Texas deferred adjudications have now been held to qualify as "convictions" under the new definition. Matter of Punu, Interim Decision No.3364 (BIA: 1998); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999). And the new definition applies retroactively, to deferred adjudications that predated the new definition in 1996. Moosa v. INS, supra. : Under certain circumstances, discussed below, a deferred adjudication can still be a sentencing option with significant benefits in immigration proceedings, but it is clear that aliens can no longer avoid proceedings altogether by deferring the adjudication of guilt.

But that's not all. Once a conviction is deemed to exist, it is becoming nigh impossible to do anything to eliminate it from consideration as an immigration issue. Expungements under state rehabilitative statutes no longer remove the conviction for immigration purposes. Matter of ROLDAN-Santoyo, Int. Dec. No. 3377 (BIA 1999). More recently, the Board of Immigration Appeals has held that even vacating the conviction for rehabilitative reasons or to relieve immigration hardships does not eliminate it for immigration purposes. To be effective immigrant immigration proceedings, the conviction must vacate for "procedural or substantive defect in the underlying criminal proceedings." Matter of Pickering, 23 I&N Dec. 621 (BIA 2QO3)..

C. Probation Means Nothing in Immigration Court

Another critical fact that everyone should know is that, in assessing immigration consequences, it makes not one bit of difference if any or even all of the alien's sentence of imprisonment is suspended in lieu of probation. A sentence of one year is considered a sentence of one year, even if the alien never actually served a day in jail.

The reason for this is that, at the same time the definition of a "conviction" was added to the INA, Congress added something else. The statute also provides that, for purposes of the INA, 

Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

INA §101(a)(48)(B), emphasis supplied.  Therefore, a sentence, of a year probated is still a sentence of one year.

This is incredibly significant in the immigration context, because the length of the sentence determines in many cases whether an offense is an "aggravated felony." As noted earlier, for example, theft offenses and crimes of violence are aggravated felonies if there is a sentence of at least one year. INA §101(a)(43)(F) and (G). The same is true of certain offenses related to racketeering, gambling, bribery, counterfeiting or forgery, and certain passport offenses. See INA §§lOl(a)(43)(J), (P) and (R).

This creates a situation that is counterintuitive to most defense attorney thinking. A criminal defense attorney representing an alien charged with theft, for example, would probably be happy to negotiate a plea where his client serves no jail time and wouldn't think twice about accepting a year or more in probation. Yet, in so doing, he would almost certainly doom the alien to deportation and permanent banishment. Any alien charged with such an offense would be better off serving a jail sentence of 364 days than a one year probated sentence. That's weird, but true. 

D. Sometimes the Sentence Matters.

Next on the list of the "deadly seven" is this unavoidably ambiguous word of caution.  While probation means nothing in Immigration Court, sometimes the length of a sentence means a great deal.

Asalready discussed, some criminal offenses become aggravated felonies with a sentence of a year or more. Another way the sentence can become significant is in relation to multiple offenses. For example: an alien with two or more DWI is would not be deportable from the United States because DWI is neither a crime involving moral turpitude nor an aggravated felony. Matter of TORRES-Varela, 23 I&N Dec. 78 (BIA 2001); U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), rehearing denied, 262 F.3d 479 (5th Cir. 2001). However, if sentenced to a total of five years, he or she becomes inadmissible and therefore unable to return home after travel outside the U.S. because any two or more crimes with an aggregate sentence of five years makes an alien inadmissible. INA §212(a)(2)(B). Again, a lengthier probated term may be worse in such cases than a shorter sentence actually served in jail.

Incidentally, this is where a deferred adjudication may still be useful, depending on the state sentencing statute. Let's use the Texas deferred adjudication statute as an example. In cases where the length of the sentence is or may become significant for immigration purposes, a deferred adjudication makes a BIG difference because there is no sentence of imprisonment. While a sentence of imprisonment is considered regardless of whether some or all is suspended in lieu of probation there is no mention of a "term of imprisonment" anywhere in the deferred adjudication statute. Tex. Code Of Crim. P.Art. 42.12, §5(b). The Code provides that the court may defer the adjudication of guilt and place the defendant upon probation for a period of up to two years for any misdemeanor, and up to ten years for any felony. But this is NOT a pronouncement of sentence. The €œpronouncement of sentence" comes, if it ever comes, only AFTER an adjudication of guilt.  Id.

While a deferred adjudication is now a conviction for immigration purposes, it cannot be a conviction for an "aggravated felony" in those instances where the aggravated felony definition requires a sentence of imprisonment. Nor can the time spent on deferred probation be considered in the aggregate with other sentences. In such cases, a deferred adjudication may still be a critically important sentencing option for the noncitizen defendant. 

E. Sometimes the Sentence Does NOT Matter a Damn Bit.

Certain offenses are what they are for immigration purposes regardless of the length of the criminal sentence, and even regardless of whether there IS a sentence.  In such cases, obviously, a deferred adjudication has no benefit over any other type of conviction." 

Some examples of offenses where the sentence does not matter include:

Murder, rape or sexual abuse of a minor, all of which are aggravated felonies under INA §lOl(a)(43)(A) regardless of sentence. 

Any controlled substance offense will make an alien deportable regardless of sentence.

JNA §2l2(a)(2)(A)(i)(ll).

Any controlled substance offense will also make an alien deportable regardless of sentence, except for a single offense of simple possession for personal use of less than 30 grams of marijuana.

INA §237(a)(2)(B).

Drug trafficking crimes, which are aggravated felonies regardless of the sentence.

INA §lOl(a)(43)(B).

Any criminal offense relating to a firearm will render an alien subject to deportation regardless of sentence or the severity of the offense. INA §237(a)(2)(C).

Illicit trafficking in firearms is an "aggravated felony regardless of sentence. INA §10l(a)(43)(C).

Domestic violence offenses are deportable offenses regardless of sentence. INA §237(a)(2)(E); and

A single crime involving moral turpitude is a deportable offense if a sentence of a year or more may be imposed -- the actual sentence received is immaterial to deportability. INA §237(a)(2)(A)(i). 

F. Sometimes an Alien Needs to Stay in Jail.

The sixth nugget of essential wisdom is that sometimes it is advisable for an alien facing immigration court proceedings to stay in jail. This can arise in two ways.

The first has already been referenced. Since probation does not matter in Immigration Court, it is often far, far better for an alien to serve a shorter sentence in jail than a longer term of probation. Any jail term served that is shorter than one year is advisable where a sentence of one year will be significant under the Immigration and Nationality act.

The second instance where jail can be a "good" thing is where detention by the immigration authorities is likely anyway due to the detention policies of the Immigration and Nationality Act. Some elaboration on those policies is required.  

1. Traditional Detention Policy. 

The immigration enforcement authorities have always had the power to arrest and detain aliens whose presence in the country was thought to be unlawful.  Such detention power was, however, not penal in nature; again, Immigration Court proceedings are deemed to be civil in nature no matter how uncivil the results may seem.

In keeping with the civil nature of the proceedings, it was generally held that an alien should not be detained or required to post a bond for his release unless there was reason to believe he or she was a security risk to the community, or likely to abscond. Matter of Shaw, 17 I&N Dec. 171 (BIA 1979).  Obviously, in such cases, a criminal history was a relevant determination in considering whether to detain or release on bond, as were any pending criminal charges. Id. 

Beginning in 1990, Congress began to shift the presumption against detention. The INA was amended to provide a strong presumption that any alien convicted of an aggravated felony would be detained unless clearly shown not to be a threat or likely to abscond. Matter of De la Cruz, 20 I&N Dec. 346 (BIA 1991). In 1996 (again, in IIRIRA), Congress came full circle.

2. Mandatory Detention.

The Immigration and Nationality Act now provides that, aliens who are deportable or inadmissible for criminal convictions, with few exceptions, are to be taken into custody and may only be released under extremely limited circumstances. INA §236(c). A great deal of litigation has been conducted over the past several years, discussion of which is beyond the scope of this paper. Suffice to say that while there have been some victories in habeas corpus proceedings, most have been in District Courts in other Circuits. It is extremely difficult to secure the release of any alien with a criminal conviction from immigration custody.

As a result of this greatly expanded detention authority in, immigration proceedings, the numbers of aliens detained has skyrocketed. In Texas, the DHS contracts with private detention corporations (like Corrections Corporation of America facilities in: Houston and Laredo), as well as various Texas counties for detention space. The Houston DHS: Office frequently must house detainees in surrounding county jails, and €œsurrounding" can mean two or three counties over!

All too often, an alien charged with a criminal offense appears before a judge or magistrate and a bond is set to insure his appearance for the criminal proceedings. Then, after his family goes to considerable expense to secure the alien's release, they discover that instead of being released he is simply moved from one jail to another. Sometimes, he even stays in the same jail and the only thing that changes is who pays for his meals.

Obviously, an alien defendant and the attorney representing him in the criminal case would like to know whether the immigration authorities will release him before they go to the good trouble and expense of securing his release on the criminal charges. Just having the client change jails is obviously useless. Even worse, it can actually be quite BAD in many cases. Unlike pre-trial detention, immigration detention is not generally credited towards any eventual sentence on the criminal case. 

Unfortunately, the DHS will not even discuss custody issues until the alien is actually in their custody --and that doesn't happen until he is released by the state and the detainer shifts to I the DHS. An experienced immigration attorney can, however, advise as to whether release on bond is legally possible, and perhaps make an educated guess at whether it is likely. If release by the immigration authorities is impossible or extremely unlikely, it may be best to simply stay in State custody where, at least, the time spent in pre-trial detention may eventually be credited. 

G. Attorneys Can Make Wonderful Friends!

The final nugget of wisdom, directed at both immigration and criminal defense attorneys, should be apparent by now: Get to know each other.  Buy a few drinks or the occasional lunch. You have a lot to learn from each other.

The practices of immigration and criminal defense attorneys have much in common. Politicians are always wanting to "get tough" with our clients, no matter how tough the laws may already be and without regard to whether "tougher" laws will serve any useful purpose. The American public goes along with these campaigns because our clients are unpopular -- not as individual human beings, but as an anonymous, faceless class. It is difficult to imagine a worse double pejorative than "criminal alien."

While deportation or removal proceedings are civil in nature, the anguish of permanent exile and separation from home and family are most decidedly part of any criminal "sentence" received. In most cases, deportation is the most significant consequence of the conviction and requires more, and not less, consideration than potential jail time or the amount of a fine.

Consideration of the harsh immigration consequences -- frequently including deportation and permanent exile from the United States -- can very quickly change a "good deal" into "NO deal!" Criminal defense attorneys should therefore buddy up to one or more experienced immigration attorneys to help them advise their clients.

Immigration attorneys should, in turn, make several friends in the criminal defense bar. Immigration clients who are charged with a crime need the best possible representation in the criminal proceedings. Aliens with particularly serious convictions may need post-conviction assistance from an expert criminal defense or appellate attorney, to explore any possibilities of vacating the harmful conviction.

Clients generally look for the easiest way out of the most immediate problem. As their attorneys, we must advise them as to all the consequences when they plead to a criminal charge. Often that means associating a criminal or immigration attorney so that the whole problem may be understood. You have to know what is going on before you can properly advise the client.

"If you don't know what I mean, won't you stand up and scream 

'Cause there's things going on that you dont know!

--Lynyrd Skynyrd, Things going On

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How to Locate Immigration Information on Government Websites

 by Barry L. Frager, Memphis, TN

5100 Poplar Avenue Clark Tower 22nd Floor Suite 2204 Memphis, TN 38137

Tel. (901) 763-3188 our e-mail address is bfrager@wolfcnaso.net

Immigration information has become much more accessible since the US Citizenship & Immigration Services (USCIS, previously INS) expanded its website, www.uscis.gov. On the USCIS website you can download forms, find out about various immigrant and nonimmigrant visas, track the progress of petitions and applications, and find out how long each USCIS office is taking to process each petition or application. You can also find the most recent press releases issued by the USCIS make an appointment with your local USCIS office. 

Many Law Firms and Government agencies have useful websites that provide important information to their customers. At the Frager Law Firm website, www.fragerlawfirm.com, our address is 5100 Poplar Avenue Clark Tower 22nd Floor Suite 2204 Memphis, TN 38137 Tel. (901) 763-3188 our e-mail address is bfrager@wolfcnaso.net we have developed a substantial "LINKS" section where you can find links to the most useful government websites which provide you with the most up-to-date information on immigration and nationality law directly from the agencies that handle your applications.

 Our links allow you to browse the US Department of State website (www.state.gov), where you can look at the monthly visa bulletin and find out whether a visa is available for your immigrant visa petition, you can find Country Reports on foreign countries, or you can find information on the annual Diversity Visa (DV) Lottery. Our links also allow you to directly access the websites of US Embassies and Consulates around the world as well as your country's Consulates located in the U.S.

 Our links will take you to such. Informational websites as Amnesty International, the United Nations and the UN Human Rights Commission. You can find links to the US Department of Customs and Border Protection, the US Department of Labor, the Office of Immigration Statistics, and the Executive Office of Immigration Review (EO1R, the immigration court system). We have compiled all these links as a free service to the visitors of our website, because we want you to be able to make an informed decision regarding your immigration law options.

So please stop by the 'Links' section of the Frager Law Firm website, www.fragerlawfirm.com We suggest that you click on the link to the USC1S website. Browse through the immigration forms, find out the filing fee for each form, and get directions to your local USC1S office. USCIS now allows electronic filing ("e-filing") of applications for Work Authorization Cards (Form I­765) and Replacement of Green Cards (Form 1-90). USCIS is expected to eventually expand the e-filing program to include other forms, as is being done on the DOL website in the process of filing labor certifications under the new regulations ofPERM.

 The EO1R website has a virtual library on their which gives you access to previous precedent Court decisions used by the local Immigration Judges.

We encourage you to look at all these Government websites where this information is available to the general public. You will find links to all these Government sites on the Frager Law firm website, www.fragerlawfirm.com. And if you have any questions after visiting these sites, we encourage you to contact us.

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Can Immigration Arrest Me if I Have Not Been Convicted of a Crime?

 by Barry L. Frager, Memphis, TN

5100 Poplar Avenue Clark Tower 22nd Floor Suite 2204 Memphis, TN 38137

Tel. (901) 763-3188 our e-mail address is bfrager@wolfcnaso.net,

If you are not a United States Citizen, the answer to this question may be YES! If you have been charged with a crime, what you say and do will determine whether Immigration (USICE) can arrest and deport you. This could be based on having committed a crime regardless of whether you were convicted by a Court of law.

Under the Immigration & Nationality Act (INA), admitting the essential elements of a crime may be enough for a non-United States Citizen to be treated by Immigration authorities as a criminal. Whether you are illegal or have a green card, your ability to remain in this country may still be jeopardized. You do not have to be convicted of a crime. The government only has to have a statement from the non-Citizen, admitting the essential elements of a crime, regardless of whether the person is even arrested or charged with the crime.

The best way to protect yourself from this trap is to give your name and address only and invoke your 5th amendment right to remain silent. You can invoke this right by asking for the right to consult an attorney before answering questions about matters that are criminal charges, which include most immigration violations. Many Attorneys have answering services where they can be reached after hours in such an emergency situation. 

If a non-United States Citizen is arrested, then it is important to, know that even if the charges are ultimately dismissed, you may still find that USICE will use these dismissed charges against you. These charges could have the equal force of a conviction, if during this process you have admitted the essential elements of the crime (notwithstanding the fact that the charges were ultimately dismissed). This holds true even if the criminal Judge offers you judicial diversion. At the end of the judicial diversion process ( or after the record is held open for a period of time) and before the charges are dismissed, USICE can place a detainer (hold) on you. You may not be released at the end of the criminal matter, or can be arrested at the conclusion of the case, even though the case was dismissed using the above criteria. 

The only circumstances that are not treated as a convictions is an acquittal, nolle prosequi, Governor/Presidential pardon, or a diversion through the District Attorney General [in contrast to judicial diversion. ] Even post -conviction relief, where the conviction is challenged in order to reduce the immigration impact on the non-United States Citizen ( example: expungment) will no longer protect the person, from having that original conviction being used as the basis for removal from the, United States. This is notwithstanding the fact that the original charge has been set aside in lieu of a lesser conviction or outright dismissal. 

This complicated and complex group of rules which define what is a conviction under the Immigration and Nationality Act is why any non-United States Citizen who has any criminal problem must immediately consult a competent immigration attorney who understands the intricacies of this law. Do not wait until after the criminal matter has been resolved or it may be too late for the Immigration Attorney to help. [Jan 2005]

Back

In recent years there have been a number of court cases that have dealt with Board precedents. The following chart briefly notes when a Board ID has been meaningfully cited by a court. The chart is not inclusive of all Board precedent cited in court cases as it began with Matter of Shaar, 21 I&N Dec. 541 (BIA 1996). Please note that Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), is not included as the cases interpreting it are so numerous and are still coming in. Matter of N-J-B-, 21 I&N Dec. 812 (BIA 1997), is also excluded as that case was certified to the Attorney General, who vacated it, and it was subsequently superceded by NACARA. We have recently begun to back track and add earlier Board precedent to the chart. The chart is arranged in simple chronological order and only court precedent cases are cited and relied upon.

Please note that this chart is provided as a convenience to the public and is not intended for use as a legal document when preparing an appeal or for citation purposes.  

DISCLAIMER 

The information contained in this article is intended to educate members of the public generally and is not intended to provide case-specific legal advice or solutions to individual problems.  Readers are not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel who is familiar with the Immigration Laws before relying on the information contained in theses articles. 

Each Immigration case is different, based on the circumstance, rights of the alien and the location of the DHS (INS) office and immigration judge.  Please do not take the following articles and court decisions, as possible final answer to your case, as they may vary form the examples.

• "Things you should know about immigration and crimes."

   by Brian K. Bates, Houston, TX

• "How to locate immigration information on government web sites."

   by Barry L. Frager, Memphis, TN

• "Can immigration arrest me if I have not been convicted of a crime?"

   by Barry L. Frager, Memphis, TN

• "Board of immigration appeals - Precedents and related decisions."

   BIA April 12, 2005

THINGS YOU SHOULD KNOW ABOUT IMMIGRATION AND CRIMES

 By Brian K. Bates

Quan, Burdette & Perez, P.C.

5177 Richmond Avenue Suite 800 Houston, TX 77056 Tel (713) 625-9200

www.quanlaw.com

I. INTRODUCTION

Let's begin with two simple facts: First, many people residing in the United States are not United States citizens. That is why immigration attorneys call earns a living. Second, many people residing in this country occasionally run afoul of its criminal laws. That is why criminal defense attorneys can earn a living. Sometimes, these two groups intersect such that immigration attorneys may find clients accused or even convicted of crimes, and criminal defense attorneys may have clients who are not citizens. Worlds collide. Chaos threatens. Things --often very bad things --happen.

For the most part, the criminal justice system is unconcerned with the citizenship of its customers. Citizens and immigrants are sent to jail without distinction. The criminal defense attorney can therefore manage to perform his or her function with knowing much immigration law. The immigration legal system however, places very significance criminal conduct such that the "civil" immigration consequences €“deportation or removal, permanent exile from the United States, denial of any opportunity to obtain or preserve legal status, etc. --­ are frequently far more severe than the harshest possible criminal sentence. Ask yourself: €œWhich would you rather endure, a year in a U.S. jail, or the rest of you life across the world, with no chance to return to your family, home and job in the United States?"

Since the immigration consequences are so severe, both the immigration attorney and the criminal defense practitioner should be aware of those consequences. In some cases, of course, it will not be possible to change the outcome of the criminal trial, nor the immigration proceedings that follow. In many others, however, tragedy may be prevented if the defense attorney and the client are simply aware of the immigration issues. Immigration and criminal defense lawyers can work together to anticipate and prevent unjust results. This paper intends a modest start. Some of the information will be very basic for immigration attorneys, because it is being written from the perspective of an immigration attorney speaking to other attorneys who may have less familiarity with the Immigration and Nationality Act.

____________________________

*BRIAN K. BATES practices Immigration and Nationality law with the Houston, Texas firm of QUAN, BURDETTE & PEREZ, P.C. 5177 Richmond Avenue Suite 800 Houston, TX 77056 Tel. (713) 625-9200.  He received his undergraduate and legal education at Southern Methodist University (BS 1976 [Political Science], JD 1979) .He has been Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization since 1984, and served for many years on the Board's Immigration and Nationality Law Exam Commission. He is the author of "Good Ideas Gone Bad: Plea Bargains and Resident Aliens, " 66 TEXAS BAR JOURNAL 878 (November 2003), "A Brief Tour of Wonderland: A Practical Introduction to Exclusion Proceedings, " 90-IMMIGRATION BRIEFINGS (January 1990), and Co-author with B. Hake of €œTale of Two Cites: Due Process and the Plenary Power Doctrine, "92-4 IMMIGRATION BRIEFINGS (April 1992). He is a past Chair of the Texas Chapter, American Immigration Lawyers Association (1993 J, i94), and the Winner of two AILA Texas Chapter Litigation Awards (1988, 1996). He received the Sam Williamson Mentor Award from AILA in June

1998. He is listed in the publications Best Lawyers in America, and Texas Super Lawyers.

 II. BACKGROUND INFORMATION.

Before proceeding, it would be useful to settle some basic terminology. The law defines an "alien" as anyone who is not a citizen or national of the United States (the distinction between a "citizen" and a "national" is subtle, and of no relevance to this discussion). Aliens may generally be divided into two groups: those with permanent legal status in the United States, and those without. Those who are entitled to reside and work here permanently are called "lawful permanent residents" or "LPR's". The card that evidences LPR status is commonly called a "green card," although it has not been green for over  years.

After residing in the U.S. for a certain period of time (usually five years after receiving LPR status), an otherwise eligible immigrant may apply to become a United States citizen through a process called "naturalization."

Aliens who are not LPR's may be in the United States legally in a temporary or "nonimmigrant" visa status. Common examples of nonimmigrant categories include tourist visas and border crossing cards, student visas, and several types of temporary worker visas. And, of course, many aliens, especially in the border areas, may be here illegally without any status.

Criminal conduct may be relevant to a non-citizen in several ways. For an alien who is not an LPR, a conviction will almost certainly result in deportation or removal, and even an "admission of the essential elements" of certain offenses may prevent them from ever receiving permanent resident status. For an LPR, convictions of certain offenses will result in deportation or removal. At the very least, a conviction may prevent an otherwise qualified permanent resident from becoming a citizen.

A. Statutory References.

Analyzing a criminal/immigration problem is to a very great extent a function of the interplay of several statutes, all of which must be consulted and cross-checked. The criminal grounds that will make an arriving alien inadmissible are found at INA §212(a)(2). 8 U.S.C. § 1182(a)(2). The criminal grounds that will make an alien already admitted deportable are found at INA §237(a)(2). 8 U.S.C. §1227(a)(2). The particularly onerous category of "aggravated felony" is defined at INA §101(a)(43). 8 U.S.C. §1101{a)(43). Finally, many immigration­ related applications require a showing of" good moral character."  The statutory definition of "good moral character" is found at INA §101(f). 8 U.S.C. §1101(f).

There are generally five categories of criminal offenses that will render an arriving alien inadmissible to this country:

(I) crimes involving moral turpitude [INA §212(a)(2)(A)(i)(I);

(2) controlled substance offenses [INA §212(a)(2)(A)(i)(ll)];

(3) any combination of two or more offenses that results in an aggregate sentence of five years, regardless of whether the individual crimes themselves would constitute a ground of inadmissibility [INA §212(a)(2)(B)];

(4) prostitution and commercialized vice [INA §212(a)(2)(D)]; and

(5) money laundering [INA §212(a)(2)(I)]. Note that some of these offenses render an alien inadmissible even if there is no conviction; he or she need only admit the essential elements of the offense or, in the case of drug traffickers, the Government need only have "reason to believe." INS §212(a)(2)(A), (C).

There are essentially five classes of criminal offenses that commonly constitute grounds of deportability:

(1) crimes involving moral turpitude [INA §237(a)(2)(A)(i) and (ii)];

(2) offenses relating to controlled substances [INA §237(a)(2)(B)];

(3) offenses relating to firearms [INA §237(a)(2)(C)];

(4) offenses relating to domestic violence [INA §237(a)(2)(E)]; and

(5) "aggravated felonies" as defined in §101(a)(43) of the Immigration and Nationality Act. INA   §237(a)(2)(A)(iii).

There is, of course, considerable overlapping of these categories, all of which may be found in INA §237(a)(2). 8 U.S.C. §1227(a)(2).

Finally, criminal conduct may affect the issue of good moral character in several ways. Essentially, any criminal offense that renders an alien inadmissible or deportable will also preclude a finding of good moral character if it takes place during the period for which good moral character is required (which varies depending upon the application). INA §101(f)(3), 8 U.S.C. §1101(f)(3). Conviction for an aggravated felony is a permanent bar to good moral character INA §101(t)(8). Imprisonment for an aggregate of 180 days or more during the specified period will preclude a finding of good moral character, regardless of the nature of the offense or offenses and whether they have any other effect under the Immigration and Nationality Act. INA §101(f)(7), 8 U.S.C. §1101(t)(7).

A. Deportation or Removal Proceedings

Proceedings to deport or exclude an alien are conducted before an Immigration Judge, an administrative adjudicator employed by the Executive Office for Immigration Review (EOIR), a small agency within the Department of Justice. While great strides have been made in recent years to make the proceedings more formal and fair, deportation or removal proceedings, remain very informal in comparison to a criminal trial.

1. Nature of the Proceedings

There is no jury in Immigration Court proceedings: the Immigration Judge is empowered to make both findings of fact and conclusions of law. The Strict rules of evidence do not apply, and hearsay is routinely admitted. Further, the Supreme Court has repeatedly held that deportation proceedings are civil in nature, and that the constitutional safeguards available to criminal defendants --such as protection against unlawfully seized evidence and ex post facto application of new legislation­ do not apply. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032

______________________________

1 However, this applies only to aggravated felony convictions issued on or after November 29, 1990. 8 CFR §316.10(b )( I )(ii). 

(1984); Galvan v. Press, 347 U.S. 522 (1954).      ;

Essentially, the only constitutional right that an alien possesses is the right to a "fundamentally fair" expulsion hearing. Arid what passes as "fundamentally fair" in Immigration Court would shock most attorneys practicing in other areas of the law.

Prior to April 1, 1997, there were two types of expulsion proceedings-"deportation" and "exclusion" -depending upon whether the alien had "entered" the United States or was applying for admission. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"), however, erased the procedural distinctions between deportation and exclusion proceedings. Effective for proceedings commenced on or after April 1, 1997, IIRIRA combined the two into what is now called "removal proceedings."

A "removal hearing" has been defined as "a court procedure that makes a determination on whether an alien, who is subject to deportation or removal, may be admitted or removed from the United States." Austin T. Fragomen, Jr., et al., IMMIGRATION LEGISLAT0N HANDBOOK (2000). As will be seen, however, an alien with a criminal conviction is usually "subject to deportation or removal," and there is little "whether" for an Immigration Judge to "determine!" 

2. How the Proceedings "Proceed"

One thing must be clearly understood: criminal cases are in no way relit gated in Immigration Court. An Immigration Judge will not go behind a criminal conviction, nor question the underlying sufficiency of it. Matter of Roberts, 20 I. & N. Dec. 294 (IA 1991). Submission of a certified copy of the conviction generally constitutes the entire evidentiary portion of the deportation hearing. Whatever is said in that certified copy is conclusively proven in deportation proceedings.

It therefore does not matter what the alien did or did not do - the only thing that matters is what the judgment says he or she did. Deportability becomes a pure question of law: whether the judgment submitted qualifies as a "conviction," and whether the offense qualifies as one of the deportable categories contained in the Immigration and Nationality Act.

B. Relief from Removal.    

A deportation or removal hearing, much like a criminal trial, has two parts. The first part is to determine the issue of deportability or (in the case of an arriving alien) inadmissibility. This is comparable to the guilt or innocence phase of a criminal, trial. The alien (called the "Respondent") is called upon to plead to the charges on the charging document. If any of the charges are denied, a hearing is conducted to determine whether the Respondent is deportable. If deportability is based upon a criminal conviction, documentary evidence of the conviction submitted by the prosecuting attorney from the Department of Homeland Security ("DHS") is usually the total extent of the evidentiary "hearing," as noted above.

If the Respondent is found deportable, the second phase of the hearing is to determine whether he or she must be deported or whether there is some form of relief from deportation available. This is comparable to the punishment phase of a criminal trial. Some examples of relief include asylum, "cancellation of removal," and various discretionary waivers of deportability or inadmissibility. 

All the forms of relief from removal, the various statutory grounds of eligibility and discretionary factors, is a topic far too complicated for a paper like this to provide even a smattering of coverage. Criminal defense practitioners are therefore encouraged to consult an experienced immigration attorney before representing a non-citizen client. Suffice to say for present purposes that where the "INA " provides no relief from removal, as is often the case where deportability is based upon criminal conduct, both phases of the proceedings may be completed in as little as five minutes. The DHS attorney submits an authenticated copy of the criminal judgment, that judgment renders the Respondent deportable and ineligible for any relief, and "No more America for you, Jack!"  

III. The Seven Things Everyone Should Know.

George Carlin once had a great comedy routine about the "Seven words you cannot say on television."  Well, I hereby offer my thoughts on the "seven things everyone should know about crimes and immigration." Now that we have established some context for the discussion that follows, here are the Seven Things:

A. Anyone Who is Not Citizen Can Be Deported.

Never assume that a client is a citizen just because the have been here virtually all their life. Many LPR' s came as children and have never become United States citizens through naturalization. Never assume that a client won't be deported (the Author prefers the old term, as being less euphemistic and more honest than the newer term "removed") just because he or she has been an LPR for 30 years and the criminal offense charge seems comparatively minor. Unless and until an alien legally obtains United States citizenship, a criminal offense can and frequently does result in deportation. Believe it.

This is especially true of offenses classified as aggravated felonies under INA §101(a)(43). An alien convicted of an "aggravated felony" is deportable and ineligible for most forms of relief, including cancellation of removal, asylum, or voluntary departure. Aggravated felony convictions are therefore most to be avoided, if at all possible. Unfortunately, this is difficult because many of the offenses do not seem "aggravated" and are not "felonies."

For example: Any theft offense with a sentence of at last a year is an "aggravated felony." INA §101(a)(43)(G). Likewise, any "crime of violence" with a sentence of a year is considered an aggravated felony. INA §101(a)(43)(F). Therefore, a misdemeanor conviction for theft or assault, with a sentence of one year, is an aggravated felony. 

B. A Deferred Adjudication is a Conviction.

Many immigration and criminal defense attorneys are now aware of this, but it bears repeating: a deferred adjudication is considered a "conviction" for immigration purposes. This was not the case prior to 1996. See, e.g., Matter of Garcia, 16 I&N Dec. 270 (BIA 1985), Martinez-Montoya v.1NS, 904 F.2d 1018 (5th Cir. 1990). 

In 1996, however, IIRIRA added to the INA for the first time a statutory definition of "conviction." INA §101(a)(48). That definition has two components. A "formal judgment of guilt" entered by a court will always qualify as a conviction. INAI§101(a)(48)(A). However, a conviction can also exist where "adjudication of guilt has been withheld" so long as there has been a finding of guilt or a plea or guilty or nolo contendere and the court has imposed some restraint upon the alien's liberty. INA §101(a)(48)(A)(i) and (ii).

Texas deferred adjudications have now been held to qualify as "convictions" under the new definition. Matter of Punu, Interim Decision No.3364 (BIA: 1998); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999). And the new definition applies retroactively, to deferred adjudications that predated the new definition in 1996. Moosa v. INS, supra. : Under certain circumstances, discussed below, a deferred adjudication can still be a sentencing option with significant benefits in immigration proceedings, but it is clear that aliens can no longer avoid proceedings altogether by deferring the adjudication of guilt.

But that's not all. Once a conviction is deemed to exist, it is becoming nigh impossible to do anything to eliminate it from consideration as an immigration issue. Expungements under state rehabilitative statutes no longer remove the conviction for immigration purposes. Matter of ROLDAN-Santoyo, Int. Dec. No. 3377 (BIA 1999). More recently, the Board of Immigration Appeals has held that even vacating the conviction for rehabilitative reasons or to relieve immigration hardships does not eliminate it for immigration purposes. To be effective immigrant immigration proceedings, the conviction must vacate for "procedural or substantive defect in the underlying criminal proceedings." Matter of Pickering, 23 I&N Dec. 621 (BIA 2QO3)..

C. Probation Means Nothing in Immigration Court

Another critical fact that everyone should know is that, in assessing immigration consequences, it makes not one bit of difference if any or even all of the alien's sentence of imprisonment is suspended in lieu of probation. A sentence of one year is considered a sentence of one year, even if the alien never actually served a day in jail.

The reason for this is that, at the same time the definition of a "conviction" was added to the INA, Congress added something else. The statute also provides that, for purposes of the INA,

 Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

INA §101(a)(48)(B), emphasis supplied.  Therefore, a sentence, of a year probated is still a sentence of one year.

This is incredibly significant in the immigration context, because the length of the sentence determines in many cases whether an offense is an "aggravated felony." As noted earlier, for example, theft offenses and crimes of violence are aggravated felonies if there is a sentence of at least one year. INA §101(a)(43)(F) and (G). The same is true of certain offenses related to racketeering, gambling, bribery, counterfeiting or forgery, and certain passport offenses. See INA §§lOl(a)(43)(J), (P) and (R).

This creates a situation that is counterintuitive to most defense attorney thinking. A criminal defense attorney representing an alien charged with theft, for example, would probably be happy to negotiate a plea where his client serves no jail time and wouldn't think twice about accepting a year or more in probation. Yet, in so doing, he would almost certainly doom the alien to deportation and permanent banishment. Any alien charged with such an offense would be better off serving a jail sentence of 364 days than a one year probated sentence. That's weird, but true.

D. Sometimes the Sentence Matters.

Next on the list of the "deadly seven" is this unavoidably ambiguous word of caution.  While probation means nothing in Immigration Court, sometimes the length of a sentence means a great deal.

As already discussed, some criminal offenses become aggravated felonies with a sentence of a year or more. Another way the sentence can become significant is in relation to multiple offenses. For example: an alien with two or more DWI is would not be deportable from the United States because DWI is neither a crime involving moral turpitude nor an aggravated felony. Matter of TORRES-Varela, 23 I&N Dec. 78 (BIA 2001); U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), rehearing denied, 262 F.3d 479 (5th Cir. 2001). However, if sentenced to a total of five years, he or she becomes inadmissible and therefore unable to return home after travel outside the U.S. because any two or more crimes with an aggregate sentence of five years makes an alien inadmissible. INA §212(a)(2)(B). Again, a lengthier probated term may be worse in such cases than a shorter sentence actually served in jail.

Incidentally, this is where a deferred adjudication may still be useful, depending on the state sentencing statute. Let's use the Texas deferred adjudication statute as an example. In cases where the length of the sentence is or may become significant for immigration purposes, a deferred adjudication makes a BIG difference because there is no sentence of imprisonment. While a sentence of imprisonment is considered regardless of whether some or all is suspended in lieu of probation there is no mention of a "term of imprisonment" anywhere in the deferred adjudication statute. Tex. Code Of Crim. P.Art. 42.12, §5(b). The Code provides that the court may defer the adjudication of guilt and place the defendant upon probation for a period of up to two years for any misdemeanor, and up to ten years for any felony. But this is NOT a pronouncement of sentence. The €œpronouncement of sentence" comes, if it ever comes, only AFTER an adjudication of guilt.  Id.

While a deferred adjudication is now a conviction for immigration purposes, it cannot be a conviction for an "aggravated felony" in those instances where the aggravated felony definition requires a sentence of imprisonment. Nor can the time spent on deferred probation be considered in the aggregate with other sentences. In such cases, a deferred adjudication may still be a critically important sentencing option for the noncitizen defendant. 

E. Sometimes the Sentence Does NOT Matter a Damn Bit.

Certain offenses are what they are for immigration purposes regardless of the length of the criminal sentence, and even regardless of whether there IS a sentence.  In such cases, obviously, a deferred adjudication has no benefit over any other type of conviction." 

Some examples of offenses where the sentence does not matter include:

Murder, rape or sexual abuse of a minor, all of which are aggravated felonies under INA §lOl(a)(43)(A) regardless of sentence. 

Any controlled substance offense will make an alien deportable regardless of sentence.

JNA §2l2(a)(2)(A)(i)(ll).

Any controlled substance offense will also make an alien deportable regardless of sentence, except for a single offense of simple possession for personal use of less than 30 grams of marijuana.

INA §237(a)(2)(B).

Drug trafficking crimes, which are aggravated felonies regardless of the sentence.

INA §lOl(a)(43)(B).

Any criminal offense relating to a firearm will render an alien subject to deportation regardless of sentence or the severity of the offense. INA §237(a)(2)(C).

Illicit trafficking in firearms is an "aggravated felony regardless of sentence. INA §10l(a)(43)(C).

Domestic violence offenses are deportable offenses regardless of sentence. INA §237(a)(2)(E); and

A single crime involving moral turpitude is a deportable offense if a sentence of a year or more may be imposed -- the actual sentence received is immaterial to deportability.INA §237(a)(2)(A)(i). 

F.  Sometimes an Alien Needs to Stay in Jail.

  The sixth nugget of essential wisdom is that sometimes it is advisable for an alien facing immigration court proceedings to stay in jail. This can arise in two ways.

The first has already been referenced. Since probation does not matter in Immigration Court, it is often far, far better for an alien to serve a shorter sentence in jail than a longer term of probation. Any jail term served that is shorter than one year is advisable where a sentence of one year will be significant under the Immigration and Nationality act.

The second instance where jail can be a "good" thing is where detention by the immigration authorities is likely anyway due to the detention policies of the Immigration and Nationality Act. Some elaboration on those policies is required.  

1. Traditional Detention Policy.

 The immigration enforcement authorities have always had the power to arrest and detain aliens whose presence in the country was thought to be unlawful.  Such detention power was, however, not penal in nature; again, Immigration Court proceedings are deemed to be civil in nature no matter how uncivil the results may seem.

In keeping with the civil nature of the proceedings, it was generally held that an alien should not be detained or required to post a bond for his release unless there was reason to believe he or she was a security risk to the community, or likely to abscond. Matter of Shaw, 17 I&N Dec. 171 (BIA 1979).  Obviously, in such cases, a criminal history was a relevant determination in considering whether to detain or release on bond, as were any pending criminal charges. Id. 

Beginning in 1990, Congress began to shift the presumption against detention. The INA was amended to provide a strong presumption that any alien convicted of an aggravated felony would be detained unless clearly shown not to be a threat or likely to abscond. Matter of De la Cruz, 20 I&N Dec. 346 (BIA 1991). In 1996 (again, in IIRIRA), Congress came full circle.

2. Mandatory Detention.

The Immigration and Nationality Act now provides that, aliens who are deportable or inadmissible for criminal convictions, with few exceptions, are to be taken into custody and may only be released under extremely limited circumstances. INA §236(c). A great deal of litigation has been conducted over the past several years, discussion of which is beyond the scope of this paper. Suffice to say that while there have been some victories in habeas corpus proceedings, most have been in District Courts in other Circuits. It is extremely difficult to secure the release of any alien with a criminal conviction from immigration custody.

As a result of this greatly expanded detention authority in, immigration proceedings, the numbers of aliens detained has skyrocketed. In Texas, the DHS contracts with private detention corporations (like Corrections Corporation of America facilities in: Houston and Laredo), as well as various Texas counties for detention space. The Houston DHS: Office frequently must house detainees in surrounding county jails, and €œsurrounding" can mean two or three counties over!

All too often, an alien charged with a criminal offense appears before a judge or magistrate and a bond is set to insure his appearance for the criminal proceedings. Then, after his family goes to considerable expense to secure the alien's release, they discover that instead of being released he is simply moved from one jail to another. Sometimes, he even stays in the same jail and the only thing that changes is who pays for his meals.

Obviously, an alien defendant and the attorney representing him in the criminal case would like to know whether the immigration authorities will release him before they go to the good trouble and expense of securing his release on the criminal charges. Just having the client change jails is obviously useless. Even worse, it can actually be quite BAD in many cases. Unlike pre-trial detention, immigration detention is not generally credited towards any eventual sentence on the criminal case. 

Unfortunately, the DHS will not even discuss custody issues until the alien is actually in their custody --and that doesn't happen until he is released by the state and the detainer shifts to I the DHS. An experienced immigration attorney can, however, advise as to whether release on bond is legally possible, and perhaps make an educated guess at whether it is likely. If release by the immigration authorities is impossible or extremely unlikely, it may be best to simply stay in State custody where, at least, the time spent in pre-trial detention may eventually be credited. 

G. Attorneys Can Make Wonderful Friends!

The final nugget of wisdom, directed at both immigration and criminal defense attorneys, should be apparent by now: Get to know each other.  Buy a few drinks or the occasional lunch. You have a lot to learn from each other.

The practices of immigration and criminal defense attorneys have much in common. Politicians are always wanting to "get tough" with our clients, no matter how tough the laws may already be and without regard to whether "tougher" laws will serve any useful purpose. The American public goes along with these campaigns because our clients are unpopular -- not as individual human beings, but as an anonymous, faceless class. It is difficult to imagine a worse double pejorative than "criminal alien."

While deportation or removal proceedings are civil in nature, the anguish of permanent exile and separation from home and family are most decidedly part of any criminal "sentence" received. In most cases, deportation is the most significant consequence of the conviction and requires more, and not less, consideration than potential jail time or the amount of a fine.

Consideration of the harsh immigration consequences -- frequently including deportation and permanent exile from the United States -- can very quickly change a "good deal" into "NO deal!" Criminal defense attorneys should therefore buddy up to one or more experienced immigration attorneys to help them advise their clients.

Immigration attorneys should, in turn, make several friends in the criminal defense bar. Immigration clients who are charged with a crime need the best possible representation in the criminal proceedings. Aliens with particularly serious convictions may need post-conviction assistance from an expert criminal defense or appellate attorney, to explore any possibilities of vacating the harmful conviction.

Clients generally look for the easiest way out of the most immediate problem. As their attorneys, we must advise them as to all the consequences when they plead to a criminal charge. Often that means associating a criminal or immigration attorney so that the whole problem may be understood. You have to know what is going on before you can properly advise the client.

"If you don't know what I mean, won't you stand up and scream 

'Cause there's things going on that you don It know!

--Lynyrd Skynyrd, Things going On

Back

How to Locate Immigration Information on Government Websites

 by Barry L. Frager, Memphis, TN

5100 Poplar Avenue Clark Tower 22nd Floor Suite 2204 Memphis, TN 38137

Tel. (901) 763-3188 our e-mail address is bfrager@wolfcnaso.net

Immigration information has become much more accessible since the US Citizenship & Immigration Services (USCIS, previously INS) expanded its website, www.uscis.gov. On the USCIS website you can download forms, find out about various immigrant and nonimmigrant visas, track the progress of petitions and applications, and find out how long each USCIS office is taking to process each petition or application. You can also find the most recent press releases issued by the USCIS make an appointment with your local USCIS office. 

Many Law Firms and Government agencies have useful websites that provide important information to their customers. At the Frager Law Firm website, www.fragerlawfirm.com, our address is 5100 Poplar Avenue Clark Tower 22nd Floor Suite 2204 Memphis, TN 38137 Tel. (901) 763-3188 our e-mail address is bfrager@wolfcnaso.net we have developed a substantial "LINKS" section where you can find links to the most useful government websites which provide you with the most up-to-date information on immigration and nationality law directly from the agencies that handle your applications.

 Our links allow you to browse the US Department of State website (www.state.gov), where you can look at the monthly visa bulletin and find out whether a visa is available for your immigrant visa petition, you can find Country Reports on foreign countries, or you can find information on the annual Diversity Visa (DV) Lottery. Our links also allow you to directly access the websites of US Embassies and Consulates around the world as well as your country's Consulates located in the U.S.

 Our links will take you to such. Informational websites as Amnesty International, the United Nations and the UN Human Rights Commission. You can find links to the US Department of Customs and Border Protection, the US Department of Labor, the Office of Immigration Statistics, and the Executive Office of Immigration Review (EO1R, the immigration court system). We have compiled all these links as a free service to the visitors of our website, because we want you to be able to make an informed decision regarding your immigration law options.

So please stop by the 'Links' section of the Frager Law Firm website, www.fragerlawfirm.com We suggest that you click on the link to the USC1S website. Browse through the immigration forms, find out the filing fee for each form, and get directions to your local USC1S office. USCIS now allows electronic filing ("e-filing") of applications for Work Authorization Cards (Form I­765) and Replacement of Green Cards (Form 1-90). USCIS is expected to eventually expand the e-filing program to include other forms, as is being done on the DOL website in the process of filing labor certifications under the new regulations of PERM.

 The EO1R website has a virtual library on their which gives you access to previous precedent Court decisions used by the local Immigration Judges.

We encourage you to look at all these Government websites where this information is available to the general public. You will find links to all these Government sites on the Frager Law firm website, www.fragerlawfirm.com. And if you have any questions after visiting these sites, we encourage you to contact us.

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Can Immigration Arrest Me if I Have Not Been Convicted of a Crime?

 by Barry L. Frager, Memphis, TN

5100 Poplar Avenue Clark Tower 22nd Floor Suite 2204 Memphis, TN 38137

Tel. (901) 763-3188 our e-mail address is bfrager@wolfcnaso.net,

If you are not a United States Citizen, the answer to this question may be YES! If you have been charged with a crime, what you say and do will determine whether Immigration (USICE) can arrest and deport you. This could be based on having committed a crime regardless of whether you were convicted by a Court of law.

Under the Immigration & Nationality Act (INA), admitting the essential elements of a crime may be enough for a non-United States Citizen to be treated by Immigration authorities as a criminal. Whether you are illegal or have a green card, your ability to remain in this country may still be jeopardized. You do not have to be convicted of a crime. The government only has to have a statement from the non-Citizen, admitting the essential elements of a crime, regardless of whether the person is even arrested or charged with the crime.

The best way to protect yourself from this trap is to give your name and address only and invoke your 5th amendment right to remain silent. You can invoke this right by asking for the right to consult an attorney before answering questions about matters that are criminal charges, which include most immigration violations. Many Attorneys have answering services where they can be reached after hours in such an emergency situation. 

If a non-United States Citizen is arrested, then it is important to, know that even if the charges are ultimately dismissed, you may still find that USICE will use these dismissed charges against you. These charges could have the equal force of a conviction, if during this process you have admitted the essential elements of the crime (notwithstanding the fact that the charges were ultimately dismissed). This holds true even if the criminal Judge offers you judicial diversion. At the end of the judicial diversion process ( or after the record is held open for a period of time) and before the charges are dismissed, USICE can place a detainer (hold) on you. You may not be released at the end of the criminal matter, or can be arrested at the conclusion of the case, even though the case was dismissed using the above criteria. 

The only circumstances that are not treated as a convictions is an acquittal, nolle prosequi, Governor/Presidential pardon, or a diversion through the District Attorney General [in contrast to judicial diversion. ] Even post -conviction relief, where the conviction is challenged in order to reduce the immigration impact on the non-United States Citizen ( example: expungment) will no longer protect the person, from having that original conviction being used as the basis for removal from the, United States. This is notwithstanding the fact that the original charge has been set aside in lieu of a lesser conviction or outright dismissal. 

This complicated and complex group of rules which define what is a conviction under the Immigration and Nationality Act is why any non-United States Citizen who has any criminal problem must immediately consult a competent immigration attorney who understands the intricacies of this law. Do not wait until after the criminal matter has been resolved or it may be too late for the Immigration Attorney to help. [Jan 2005]

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In recent years there have been a number of court cases that have dealt with Board precedents. The following chart briefly notes when a Board ID has been meaningfully cited by a court. The chart is not inclusive of all Board precedent cited in court cases as it began with Matter of Shaar, 21 I&N Dec. 541 (BIA 1996). Please note that Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), is not included as the cases interpreting it are so numerous and are still coming in. Matter of N-J-B-, 21 I&N Dec. 812 (BIA 1997), is also excluded as that case was certified to the Attorney General, who vacated it, and it was subsequently superceded by NACARA. We have recently begun to back track and add earlier Board precedent to the chart. The chart is arranged in simple chronological order and only court precedent cases are cited and relied upon.

Please note that this chart is provided as a convenience to the public and is not intended for use as a legal document when preparing an appeal or for citation purposes.  

Please note that this chart is provided as a convenience to the public and is not intended for use as a legal document when preparing an appeal or for citation purposes.