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E-mail: pabulum animi (food of the soul- learning) DISCLAIMER Criminal Law and Immigration Law change
constantly, therefore, please be advised that the contents of this site is provided for
your information, but it is not legal advice. If you have any questions about your legal
rights, you need to contact a lawyer in your jurisdiction. Also, you should be
aware that anything that you read here, or even if you receive an E-mail response, unless
I am retained and undertake the responsibility of your case -----
It's important to understand that a criminal conviction can be devastating to a non-citizen. The consequences of a criminal act are not limited only to felonies. They can result from the commission of a misdemeanor. A misdemeanor that is a crime "involving moral turpitude" can result in removal if it is committed within five years of entry into the U.S. And this means THE LAST ENTRY. So, if you have been here 31 years and left the U.S. recently for a short trip to Mexico and then committed a shopping offense in the United States, you may be removable. I have had a number of cases that involved criminal conduct. One case involved a person charged with a felony theft. Felony thefts are "aggravated" felonies and non-citizen would be characterized as an aggravated felon in the immigration proceeding. The consequences of being removed would result in the person permanently ever coming back into the United States again. It is possible to recategorize the theft crime as a "fraud" crime which requires a $10,000 loss or more to the victim. There were a series of circumstances which allowed us to go back into court to recategorize the crime and as a result, the non-citizen was able to get voluntary departure, which is a defense that allows a non-citizen to leave the United States, pay for his/her trip, show evidence that he/she left by the date ordered by the court. This defense would open the door to the non-citizen to return to the United States at a future date. Another helpful strategy is to have the court sentence the non-citizen to a period of 364 days as opposed to 365 days. 364 days is less than a "year." In certain situations, this is better and the client may not be deportable. When the conviction occurred is very important also. The INS takes the position that these changes in the law that severely affect people who have committed crimes that the INS categorizes as "aggravated felonies," are always subject to the penalties even if the crime was committed many years ago. For example, I have had a number of cases where the person committed a crime in the 1970's. The person was ordered removed. I have appealed to the Board of Immigration Appeals in Falls Church, Virginia. The basis of my appeal relates to crimes committed prior to November 29, 1988. I believe that Congress intended that the convictions prior to November 29, 1988 are not covered in this blanket retroactivity consequences. What I am saying here is that as the laws have changed after November 29, 1988, Congress has expanded the definition of an aggravated felony several times and they have made the penalty for an aggravated felony to be permanent removal from the United States, plus they have said that if an aggravated felon comes back into the U.S. after removal, he is subject up to a 20-year prison term. These cases need to be analyzed very carefully.
CRIMINAL
IMMIGRATION CONCERNS It's very important if you have been charged with a crime that you work with an Immigration Lawyer before you enter your plea. If you a Permanent Resident or here on some type of visa, or your are illegal, it's still important to check the effect of your plea prior to pleading to the crime. Some crimes that are misdemeanors, such as a domestic battery, can result in your removal or deportation. Other crime that are felonies may result in your deportation, and even worse, be characterized as "aggravated felonies" by the INS and if you are determined by the Immigration Court to have committed an "aggravated felony" you may not be eligible for bond (a way to remain out of jail by posting a bond with INS) and you may be permanently prohibited from coming back into the United States. The concept of "aggravated felony" in the Immigration Court is not common knowledge in most just because a crime is not an "aggravated felony" in a state court concept, the Immigration Court will look to the federal consequences of that crime to determine whether or not it is an "aggravated felony." For example, a crime of theft, punishable by a period more than one (1) year, is a "aggravated felony" by definition. The same factual basis may be characterized as a fraud crime and that would not be generally an "aggravated felony" unless it involved fraud or deceit in which the loss to the victim exceeds $10,000. Many people may have committed a crime, either a minor misdemeanor or a major felony that could have far reaching immigration consequences in the processing of their paperwork. As a criminal lawyer, as well as an immigration lawyer, I feel that people should seek expert immigration advice to deal with these problems and then find ways to eliminate the criminal effect, or at least to know from the beginning what obstacles may be in the way. THE IMMIGRATION LAW, PARTICULARLY IN THE AREA OF CRIMINAL HISTORY CHANGES ALMOST MONTHLY. Consult an immigration attorney if you have any type of criminal history. But, do not be discouraged, there are ways to work around may problems. Keep your attitude positive and don't give up. Again, the law changes regularly. I would be more than happy to give you a quick look at your question on my inquiry form. Let me help you. I am a member of an international immigration organization. I can work with criminal lawyers in states that I do not practice in and in countries that I have never visited. When I am interviewing someone who may have some immigration needs, I advise them to tell me everything. I cannot be compelled to reveal any confidences, but at the same time, it allows me to work with my client to find ways to overcome the criminal record.
All too often people fill out applications and omit criminal history. This
is could be a very serious omission and result in the denial of the application.
Other times, people may admit criminal history when the law would permit them to withhold
the information. Consequently, I advise people to level with their lawyer and
let their lawyer work with them to find a way, if possible, to either eliminate or reduce
the effects of the criminal history. The criminal history could be very
old; it could include a petty or misdemeanors offense, one committed either in the
United States, or outside the United States. It is imperative to seek competent
professional help in this area before you fill out ANY forms from the embassy, consul,
immigration, or asylum office.
You may think immigration doesn't have the paperwork on your case because the
crime was committed in the 1960's, doesn't mean that the Federal government isn't going to
find out about. I really believe that it is better to know everything,
take every measure to legally eliminate the consequences of a past crime and be honest in
filling out any documentation relating to any aspect of either immigrating, working,
visiting, conducting business, etc.
Criminal problems in immigration are complex because the law affecting immigrants has
grown in radical proportions. In 1996, two Acts were passed which
dramatically altered the definition of aggravated felonies and the courts have not fully
defined many of the applications of aggravated felonies to cases.
This one area of law has caused considerable heartache to me because I represent aliens
who have had criminal problems in the past who have not had any criminal convictions for
many years and now are being removed to a country they had hardly any contact with.
They are separated from their families and I feel that there is a sense of unfairness in
the way the laws have turned.
In general, when I analyze criminal/immigration cases, consideration of the
following concepts are very important:
The reason an aggravated felony is so important in the analysis is if a permanent resident or alien has committed an aggravated felony at any time after entry, they are deportable. Usually the definition of an aggravated felony can be found in the Immigration and Nationality Act referred to as INA Section 237(a)(2)(A)(iii). The definition includes, but is not limited to, by any means, murder, rape or sexual abuse of a minor, trafficking in a controlled substance as defined in Section 802 of Title 21, including a drug trafficking crime as defined under 18 USC Section 924(c). Note: A lot of time it is comparing the definition of the Federal crime with the State crime. This list is not at all conclusive and I will update it as time permits.
These crimes or civil violations may involve deportation/removal
The concept of aggravated felony, which was really introduced in the 1988 Act, has been subsequently modified in the 1990 Immigration Act, and the 1996 Acts. What has happened is the category of aggravated felony which originally included only murder and trafficking in drugs and firearms, has gradually grown over the years to include theft, drug, and various other offenses. People in prison are finding that as they get close to probation, the INS shows up and has a deportation hearing and while they are on probation they are physically removed out of the United States. This concept can be, pardon the pun, a smoking gun for many permanent residents living in the United States who committed crimes which were not aggravated felonies at the time that they plead or were determined to be guilty, but now are aggravated felons. It's also possible that a person can commit a misdemeanor and, if that misdemeanor qualifies as a felony in the Federal scheme, this person can be designated an aggravated felon and subject to deportation. The criminal area is very difficult because the position of the immigration organization, including the courts, appears to me that they have a mandate to rid the United States of anyone who has ever suffered a conviction. So, I have a policy of being very careful about filing immigration documentation for someone who has been found to have a criminal record. Sealing a record may or may not help. Sealing a foreign conviction may be of no effect whatsoever. And the same for expungement. It depends.
BOND
I was successful in getting the Board of Immigration Appeals to remand a case back to an immigration judge in Arizona to grant bond for a non-citizen permanent resident who was accused of committing an aggravated felony in the mid-90's. The BIA cited their decision Matter of Adeniji, Interim Decision 3417 (BIA 1999). This is a November 1999 case. Very good decision. However, as always, the law is a jealous mistress and for use, talk to your lawyer to make sure it is still good law. There have been a number of changes in eligibility for bond where the alien has a criminal history. The Interim Rules, which were used up until the early part of October, 1998, allowed for bond if a person was not a flight risk and was not a threat to others, etc. Now, the verbiage has changed and aggravated felons and people with crimes of moral turpitude do not get bond from the Immigration Judge. There have been some Federal courts that have ruled that aliens may be eligible for bond in situations where they are not able to be returned to their country of origin, e.g., Cuba. I find this whole subject repulsive because we are dealing at times with long-term Permanent Residents who have had no problems with the law for many years. They have children and/or spouses that are U.S. Citizens or Permanent Residents and, suddenly, after being called in by the INS to return an I-94 card or to check their passport, the family finds, the son, husband, brother, mother, father, daughter in custody. I believe there will be some changes pretty soon from Congress, I hope. There are at least two bills that may have some impact and only the future will tell. Relief Look at 212 C relief in the News. May be a life saver. If eligible consider convention against torture act in lieu of asylum if convicted of major crime
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