IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS I. INTRODUCTION A. Who needs to be aware of immigration consequences? - George N. Miller Every area of the practice of law carries consequences for a foreign national. A foreign national is any non-us citizen in the United States, whether here lawfully and in possession of a valid visa, a Lawful Permanent Resident (LPR) or in the United States illegally. Anyone in the US who is not a citizen of the US is a foreign national for practical matters. There is always some risk whenever the foreign national has an interaction with our legal system. Criminal defense lawyers must be especially aware and informed that the final disposition of a criminal charge can carry catastrophic consequences for a foreign national. Quality, and more importantly, competent representation involves much more than plea negotiations or trial in the traditional US citizen context. The final disposition for a foreign national is only the beginning of the process. There are tremendous immigration consequences to foreign nationals convicted of crimes. B. Who must advise the client of possible immigration consequences? Defense counsel should be aware of and advise the client that there could be adverse immigration consequences as a result of a guilty plea or unfavorable verdict. Whether attorneys have an affirmative duty to advise of possible immigration consequences, at this time, is yet to be decided in this jurisdiction. Other jurisdictions have considered the question and have decided that yes, defense counsel does have an affirmative duty to address the possible immigration effects. In Federal District Court, a warning about possible immigration consequences must be given to the defendant. The Magistrate or Judge will ask the defendant in the Rule 11 and Plea Inquiry stage whether he/she is an American citizen and if not, the Court will inquire as to whether the defendant is aware that there could be possible immigration consequences as a result of their plea. The Court does not have a duty to advise the defendant what the effects of the plea could be, but only to make sure the defendant has considered the potential problem. The burden is then placed on the defendant to seek out advice on the issue. Defense counsel does not have the responsibility of advising the client of all possible immigration consequences of his/her plea. Counsel does have the responsibility to advise
the client there could be consequences and the client should seek out those answers on their own unless counsel is competent in this area. In our state superior courts, each defendant must complete, sign and then verify the answers given on a plea transcript. It states if the defendant is not a citizen of the United States of America there could be serious consequences as a result of a guilty plea. Again, defense counsel must only advise the client that there could be consequences and the burden is on the client to get the information from appropriate counsel. Currently, plea transcripts are not required in our district courts. Unlike superior court, the district court is not even required to warn the defendant. Defense counsel isn t required to warn the client either. That will likely change in the near future. Case law from around the country shows that defense counsel will soon have the obligation to advise the client of possible adverse immigration consequences in every criminal court proceeding. C. Ineffective Assistance of Counsel Defense counsel can be cited for ineffective assistance when counsel provides incorrect advice regarding immigration consequences. Affirmative misstatements or incorrect advice given to the client has been found to open the door to claims against the attorney. In Re Resendiz, 25 Cal. 4 th 230 (2001). In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed.2d 203 (1985), the court stated counsel can be cited for ineffective assistance by giving misadvice where the client s decision whether to plead guilty is affected. Obviously, in order to fully represent our clients, each of us has a responsiblility to advise our clients that there could be possible immigration consequences as a result of the client s decision in their criminal proceedings, but unless we are educated as to what those consequences are, we should refrain from giving ANY advice other than to seek expert legal assistance. II. CONVICTION A. Defined For immigration purposes, the definition of a conviction is different from what we learned in law school and use in practice every day. We learned that a criminal conviction could only follow a defendant s guilty plea or a finding of guilt by a judge or jury. We also learned that a final conviction resulted only after all appeal opportunities had been exhausted. These fundamental concepts do not apply for immigration purposes. For immigration purposes, the definition of conviction is found at INA 101(a)(48). It states: 2
(A) The term conviction means, with respect to an alien, a formal judgment of guilt of the alien has been entered by a court or, if adjudication of guilt is withheld, where (I) (II) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty or restraint on the alien s liberty to be imposed. Any reference to a term of imprisonment or 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 sentence in whole or in part. B. Analysis An analysis of the term conviction cannot stop with a quick reading of the definition. We must then take the definition apart. The first part of the definition is consistent with what most of us understood all along; that a conviction follows a formal judgment of guilt. Under the definition; however, a procedure for the withholding of adjudication is also a conviction in most situations. Deferred Prosecution is an example of a program designed to help the defendant avoid a conviction, but for a foreign national, the end result is most likely the opposite effect: a conviction for immigration purposes. In many situations, the ultimate immigration consequence will depend upon the sentence imposed. When a sentence of one year or more is imposed, more often than not, the crime will be considered an aggravated felony. The definition of conviction encompasses that situation as well by including paragraph (B). Plainly stated, it means that a sentence that has been suspended in whole or in part is still considered to be the sentence imposed. Probationary portions of a sentence are not part of the sentence imposed. A simple example is a sentence that orders the defendant to serve 45 days in the custody of the local sheriff; however, that sentence is suspended for 18 months on the condition that the defendant have no contact with the victim. The defendant is placed on unsupervised probation for 2 years. That sentence is in excess of one year since the suspended portion is deemed to be part of the actual sentence. The probationary term is of no consequence for immigration purposes. Practice Pointer: Ask the court to consider ordering a longer probationary term and to limit the combined active and suspended portions of the sentence to less than 365 days. Most judges and prosecutors are unaware of the extreme consequences of 3
suspended sentences. When compared to the actual consequences felt by American citizens versus foreign nationals, the same sentence can be grossly inequitable. No contest pleas, (or nolo contendre pleas), still result in convictions even though no admission of guilt was entered. This is true because following the plea, the judge enters a formal judgment of guilt. Another favorite disposition for NC lawyers to seek is the Prayer for Judgment Continued or PJC. Since the client must enter a plea of guilty or be found guilty by a judge or jury before the PJC can be entered, the definition of conviction is met. PJC s are considered convictions for immigration purposes. C. Post Conviction Relief It is also extremely important to understand that an expunction will not eliminate a foreign national s exposure to the consequences of this expanded definition of a conviction. This problem frequently occurs in Deferred Prosecution cases where the defendant completes the program and the charges are dismissed. Then the defendant has the charge expunged. The admission to sufficient facts to warrant a finding of guilt in order to be admitted into the program can still be considered a conviction for immigration purposes, even though the expunction process is complete. Can a Motion for Appropriate Relief erase the conviction? Certainly, but that isn t necessarily enough for immigration purposes. The conviction must be vacated on the merits. NCGS 15A-1414 and 15A- 1415 list the grounds for appropriate relief available in NC. Practice pointer: Do not use the catch all provisions such as to further the ends of justice because you will not save your client from a conviction in immigration court. III. CLASSIFICATION OF CRIMES For immigration purposes, crimes are classified in several different ways as discussed in a preceding article. Some crimes are classified as aggravated felonies (AF), some are crimes of moral turpitude (CMT) and a few fall into neither category. Some misdemeanors are classified as AF s which makes it more confusing to navigate this area. Unfortunately, there is not a definitive list classifying each crime. A. Aggravated Felony (AF) Aggravated felony is a term created by statute. Its definition can be found at INA 101(a)(43)(A)-(U). The definition is retroactive which means that each year, when new offenses are added to the expanding list of aggravated felonies, those same offenses that were benign misdemeanors a year before may later become deportable offenses. 4
There are two types of AF s defined in the INA. Category crimes are deemed to be AF s regardless of the sentence imposed. Sentence crimes are AF s when the crime requires a sentence imposed of at least one year. For a total list of aggravated felonies, you should always read the statute in its most updated form. An abbreviated list includes murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, money laundering in excess of $10,000, explosive device offenses, certain firearm offenses, crimes of violence where the term of imprisonment is at least one year, theft or burglary offenses that carry at least one year of imprisonment, kidnapping, child pornography, prostitution enterprises, offenses related to the gathering and transmission of national defense information, fraud or deceit crimes where the loss exceeds $10,000, tax evasion in excess of $10,000, alien smuggling, counterfeiting of a US passport, trafficking in vehicles, obstruction of justice when the sentence imposed is at least one year and the attempt or conspiracy to commit an offense that is an aggravated felony. It is important to note that the NC statute may not classify an offense as a felony and yet it still may be an aggravated felony as defined in the INA. You must compare the state and federal offense with those listed in the INA. Your responsibility becomes even more difficult when you consider that you may be working out a plea agreement that is satisfactory to your client today for criminal punishment and immigration purposes and yet that same conviction could be disastrous to your client next year if the AF list expands and encompasses his conviction. This is not a rare occurrence. We cannot foresee or avoid this problem, but we can advise our clients of this possibility. It is important to note and worth repeating that even if all of a possible active jail sentence has been suspended and the defendant successfully completes a probationary sentence and never serves a single day in jail, the client is still deportable if the crime for which he was convicted is on the list of aggravated felonies. Sentence crimes are AF s that require an imposed sentence of at least one year. These crimes include crimes of violence which are defined at 18 USC 16. Examples of sentence crimes are also included in the list cited at INA 101 (a)(43) such as theft, burglary, and forgery and the sentence is at least 365 days. Misdemeanors, especially those classified as A1 misdemeanors in NC, that may carry a maximum sentence of 365 days can be AF s. Practice Pointer: When negotiating with the prosecutor, consider whether there is a plea available to a sentence crime and try to arrange a plea agreement for a total sentence of 364 days or less. One more day of a suspended or active sentence will trigger AF treatment and a bar to virtually all forms of relief in immigration court. One day could mean the difference in mandatory deportation or life in the US. Practice Pointer: A noncitizen will be subject to removal (deportation) as an aggravated felon regardless of the date of conviction. For very few, there may be some 5
form of relief after a conviction. Aggravated felons are generally in serious risk of removal. For most noncitizens charged with an aggravated felony, the only strategy may be a trial since no plea agreement or judge s order can stop removal upon a conviction. B. Crimes Involving Moral Turpitude (CMT) INA 212(a)(2)(A)(i)(1) attempts to define CMT s and states these crimes generally refer to conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general. These crimes are deemed to be the result of acts that are morally reprehensible or intrinsically wrong. Unfortunately, there is not a more specific definition or even a list of crimes that fall into the category of CMT. The cases are numerous where the courts state the term moral turpitude has never been clearly defined. Convictions in other countries, or foreign offenses, must be compared with standards in the United States to determine whether those convictions constitute a CMT (or even an AF). Squires v. INS, 689 F.2d 1276, 1278 (6 th Cir. 1982), cert. den., 461 U.S. 905, 103 S. Ct. 1874, 76 L.Ed.2d 806 (1983). While it is not the defense counsel s duty to advise the client about charges in other countries or previous dispositions at all, it is important to know the entire criminal history due to the cumulative effects of the INA. (Remember that convictions for two CMT s or one AF makes a person removable.) Through the years the issue of what constitutes a crime of moral turpitude has been debated and there have been numerous attempts by the courts to pin down some guidelines. One theme that seems consistent is that the act be driven by a vicious motive or a corrupt mind and that there is an additional component of a malicious intention. Michel v. INS, 206 F.2d 253,263 (2d Cir. 2000). Examples of CMT s, but certainly not a total list, are assault with the intent to rob, kill or rape, assault with a deadly weapon, aggravated assault, child abuse, domestic assault, aggravated DWI, adultery, oral sex, embezzlement, forgery, fraud, larceny, counterfeiting, mail fraud and tax evasion. Crimes that are not CMT s include carrying a concealed weapon, alien smuggling, simple assault and non-aggravated DWI. Aggravated felony convictions almost certainly result in removal (deportation). CMT s do allow for possible waivers or exceptions to removal. There are several sections of the statute that contain harsh provisions; therefore, the statute should be read and applied carefully. INA 237 (a)(2)(a)(i) and (ii) are as follows: (i) Crimes of Moral Turpitude Any alien who- 6
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent residence status under section 245(j) of this title) after the date of admission, AND (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. (ii) Multiple criminal convictions Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in single trial, is deportable. When applying this statute, you must first determine the client s date of admission so you can then determine whether the crime was committed within five years of that date. If the crime is a crime involving moral turpitude and it was committed within five years of admission to the US, the client is probably deportable. Second, the client is deportable if the crime was committed within five years of admission and the sentence for the crime is possibly 365 days or more. You must examine the date of admission, the type of crime and the possible sentence before you can determine deportability. You must also remember the rule that the active jail sentence AND the suspended jail sentence are the actual sentence. Probationary sentences are not included in the calculation of the total sentence. Finally,the last section of the statute is crucial too. You must consider whether the client has been convicted of two or more CMT s and whether they arise out of a single scheme of criminal misconduct. The single scheme component is different from the Structured Sentencing guidelines in NC or even in federal court. The courts wrestle with what is a single scheme, but at this time, the general rule seems to be that a single scheme is an act, which in and of itself constitutes a complete, individual, and distinct crime. This test has been applied in a case where the defendant used the same credit card scam to defraud a number of businesses on several different occasions. That was not deemed to be a single scheme, but instead, each transaction was a separate distinct scheme of criminal misconduct. Balogun v. INS, 31 F.3d 8 (1 st Cir. 1994). Misdemeanors can be classified as CMT s. When you apply the statute, while paying close attention to the sentence possibly imposed, some NC misdemeanors become deportable offenses if the convictions satisfy the remaining portions of the tests. 7
Some crimes do not qualify as either a CMT or an AF. Regulatory laws are examples of these offenses. Some crimes qualify as both a CMT and an AF. Whenever considering plea agreements, you must consider the five year rule and the 2 CMT Rule. To consider only whether a crime is a CMT is not enough. Each one of the prongs of the statute must be applied to each situation. Practice Pointer: Make sure you know the client s entire criminal history. It is imperative to know when each offense occurred and what each sentence included. Many people do not understand convictions, under any definition, and you cannot rely upon their memory or understanding. You must have written documentation of the client s entire criminal history. C. Drug Offenses A controlled substance violation is any violation of (or a conspiracy to violate) any law of a state, the US or even a foreign country relating to a controlled substance as defined in 102 of the Controlled Substances Act which is found in 21 USC 802. With one exception, all controlled substance offenses are also AF s and CMT s triggering inadmissibility and removal. The one exception is the first offense for personal use of 30 grams or less of marijuana. INA 237 (a)(2)(b)(i). All controlled substance convictions, other than the 30 grams of marijuana, trigger deportation (removal) regardless of the date of conviction. Any alien who at any time after admission has been a drug abuser or addict is deportable. INA 237 (a)(2)(b)(ii). INA 212(a) states that any person with a controlled substance conviction, or admits to the essential elements of a controlled substance offense, is inadmissible into the US. This includes the 30 grams or less of marijuana exception. The effect of this statute is the person is not eligible for a visa or adjustment of status in the US. There is a waiver available for the marijuana possession offense, but the granting of the waiver is anything but certain. With regard to inadmissibility to the US, a person who the consular officer has reason to believe has been engaged in drug trafficking may be inadmissible even though he has not been convicted of any offense. They may not even have been charged. Further, the spouse or child of that same person may also be denied admission if the spouse or child that derived financial gain from the trafficking in the last five years reasonably should have known from where the money was gained. This provision applies only to inadmissibility and does not arise in a deportation context. INA 212(a)(2)(C). D. Domestic Violence 8
Domestic violence and related crimes are specifically stated as deportable crimes in INA 237(a)(E)(2). Domestic violence includes crimes against a spouse, former spouse, roommate, or person with whom the defendant shares a child. Domestic violence also includes stalking, child abuse, child neglect, and even the violation of domestic protective orders such as restraining orders and injunctions. This provision is expanded from what we know in NC. When this provision is coupled with violation of 50B Protective Orders in our civil courts, the total effect and even the leverage a former spouse wields can be disastrous. A person can be deportable even if the name of the crime has nothing to do with domestic violence. If the person is convicted of simple battery, but it is clear from the charging document that the victim falls into one of the categories listed above, then INA 237 controls the issue. Misdemeanor battery is not considered a CMT or an AF (unless the sentence is 365 days or more), but if the victim is a spouse, etc, then the noncitizen becomes deportable upon a conviction. Curiously, INA 212(a) which governs the rules of inadmissibility, does not cite domestic violence as a ground for which a person is inadmissible. That means a person convicted of domestic violence type crimes may be able to secure a visa and subsequent entry into the US. Adjustment of status is also, theoretically, available. Waivers may be available for domestic violence convictions unless they rise to the level of AF. One more important factor when dealing with domestic violence convictions is the effective date of INA 237. Convictions or violations occurring after September 30, 1996, are subject to INA 237. Consider the effective date of this provision when applying for adjustment of status and naturalization as well as when in a consular processing situation. Many BCIS, BICE and Consular Officers will cite the conviction as a reason to deny the benefit your client seeks. It is your burden to use the effective date of the statute on your client s behalf. Deferred Prosecution and other first offender programs designed to rehabilitate the defendant and/or the relationship still can be very harmful in the end. It is incumbent upon the advocate to fashion a confession that will gain acceptance into one of these programs and still not trigger the conviction language explained in the first few paragraphs of this article. Practice Pointer: Try crafting an agreement with the prosecutor where the incriminating statement needed to enter the program is not part of the court file and thus probably not discoverable since the trial attorney for the BCIS would not have a clue it exists. Most of the programs designed to teach perpetrators (men in most cases) not to hurt victims require an admission as the first step of treatment. An admission will trigger the conviction definition which will in turn begin the deportation process. Practice Pointer: If you have a client that wants to apply for Naturalization and that client has a conviction for domestic violence after September 30, 1996, (or any AF or 2 CMT s for that matter), then they should NOT file for Naturalization since they are subject to removal (deportation). When the client goes to the BCIS for the interview, the 9
file will be given to the BICE and the client will be placed in removal. The client could be detained and depending on the conviction, the client may not be eligible for a bond. What was to be a casual interview for citizenship could turn into total disaster. IV. CONCLUSION This area, like all areas of the law, is changing every day. To advise your clients correctly, it is imperative to stay abreast of the new case law as well as the new enactments. That is a difficult and daunting task. It is absolutely essential to consult with your colleagues and always urge our brethren who do not practice immigration law to consult with an immigration attorney about foreign nationals that have been charged with crimes. To responsibly and effectively represent your client, you must advise the client to determine the best strategy through the court system and perhaps avoid the immigration court. Don t be embarrassed to ask for help. We are all in this together. George N. Miller Suite 700 301 S. McDowell Street Charlotte, NC 28204 704 372-6373 gmiller@dmpm.com 10