I was consulted on a case the other day where a person had pleaded guilty to misdemeanor possession (of something that’s not marijuana) over his lawyer’s warnings that it make him removable. The judge also (post-Padilla) made sure that the person knew that there could be immigration consequences. But all the person could hear was that the prosecutor would be asking for probation if he accepted the plea deal (which was also the likely sentence even after trial).
So you can guess what happened. After an ill-advised trip abroad, the person received a Notice to Appear in immigration court. As a legal permanent resident with medical issues, he was eligible for cancellation of removal (which he ended up getting, with a sympathetic judge). But it could easily have gone the other way. Cancellation is a discretionary remedy, which means that the judge could have denied it if he had a good reason to do so. Continue reading
A colleague recently asked me whether the DC post-and-forfeit procedure after arrest is properly considered a conviction under federal and immigration law. The simple answer is that the post-and-forfeit procedure does not equate to a conviction. Continue reading
Recently, in browsing a well-known local lawyer’s website, I found the following “News” article on their blog:
Attorney X convinced a [local] prosecutor to dismiss Armed Robbery charges, all felonies, and all gun charges, despite the defendant being caught nearly red-handed with a shotgun in his fleeing vehicle.
The defendant plead to Second Degree Assault, a misdemeanor, giving him a strong chance to avoid certain deportation that he would have faced with any felony or gun charge. He will be eligible for parole in one month.
While there may be some ethical concern over publicizing past successes without adequately informing potential clients that there is no guarantee of such success in any particular case, that is not my main concern. The biggest problem with this self-serving news article is that it may harm the client in the future. Continue reading
Posted in Criminal Law, Immigration
Tagged Crime Involving Moral Turpitude, Criminal Immigration, DC, District of Columbia, Felonies, Immigration, Immigration Court, Maryland, Removal Defence, Washington
Recent changes in how courts view the consequences of criminal convictions for non-citizens make it imperative that criminal defense counsel not only counsel clients on the potential immigration consequences of pleading guilty, but also demand a jury trial if a conviction could lead to removal for the client. Continue reading
Former Attorney General Mukasey’s last minute fuck you to the immigrant community is looking like it might be against the ropes. As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT).
Today, the 4th Circuit becomes the fourth circuit court to reject Silva-Trevino. In Prudencio v. Holder, the 4th Circuit held that ex-AG Mukasey’s decision was not entitled to Chevron deference because there was no ambiguity in the statute, that indeed, any ambiguity was of Mukasey’s own making. The author of the opinion, Judge Keenan, a fairly recent Obama appointee, had some pretty choice words for Mukasey’s linguistic gymnastics.
As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT). This post will attempt to answer the question – when are the Immigration Courts allowed to look beyond the record of conviction to determine whether a conviction for simple assault is a CIMT?
EDIT: After the Fourth Circuit’s recent decision rejecting Silva-Trevino in Prudencio v. Holder, this approach is looking more and more vulnerable to attack. Check to see whether Silva-Trevino is still good law in your circuit. I discuss the Fourth Circuit decision here.
FURTHER EDIT – IMPORTANT: The Supreme Court’s June 2013 decision in Descamps v. US clarified when the modified-categorical approach is to be used for determining whether a crime is a crime of violence. This has completely changed the Fourth Circuit’s analysis of whether simple assault type crimes will be a crime of violence (and therefore a CIMT). See US v. Royal (4th Cir., Oct. 2013). I imagine that the situation is changing quickly in other circuits as well.
Posted in Criminal Law, Immigration
Tagged BIA, Cancellation of Removal, Crime Involving Moral Turpitude, Criminal Immigration, Crimmigration, deportation, EOIR, Immigration, Immigration Court, removal, Removal Defence, Statutory Interpretation
Today, the Eleventh Circuit became the latest US Court of Appeals to reject the new Silva-Trevino method for determining whether a crime involves moral turpitude (CIMT). Silva-Trevino was former Attorney-General Mukasey’s parting shot at immigrants, and it was a doozy. In Silva-Trevino, AG Mukasey made huge changes to the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT) under the guise of creating a national standard to resolve what he perceived as an ambiguous statute. In Sanchez Fajardo, the 11th Circuit held that ex-AG Mukasey’s decision was not entitled to Chevron deference because there was no ambiguity. Continue reading
Posted in Criminal Law, Immigration, News
Tagged Cancellation of Removal, CIMT, Crime Involving Moral Turpitude, Criminal Immigration, Crimmigration, deportation, EOIR, Inadmissibility, removal, Removal Defence, Statutory Interpretation
Under certain circumstances, some people put into removal proceedings who are not Legal Permanent Residents (LPRs) may be eligible for a form of relief called “Cancellation of Removal”, which allows certain non-LPRs to “adjust status” and become an LPR. In plain English, Cancellation of Removal allows some non-green card holders to ask the Immigration Judge to “cancel” their removal proceedings and allow them to stay in the U.S. as an LPR. The statute that provides this relief is INA §240A(b)(1). (There other types of Cancellation for LPRs and for battered spouses or children of LPRs or citizens – INA §240A(a) & (b)(2), respectively). The purpose of this post is to provide a checklist for eligibility for Cancellation of Removal for non-permanent residents.