Tag Archives: deportation

If a Misdemeanor Could Lead to Removal of a Non-Citizen, the Charge *Might Be* Jury-Demandable In DC

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

Is Simple Assault a Crime Involving Moral Turpitude post-Silva-Trevino?

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.

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11th Circuit Rejects Silva-Trevino Framework for Looking Beyond Record of Conviction in Immigration Cases

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

Public Service Announcement – If You Have Temporary Protected Status, Don’t Plead Guilty to Those Minor Misdemeanors

If you are an immigrant here in the US with temporary protected status (TPS), you will lose this status if you are convicted of two misdemeanors.  INA §244(c)(2)(B).  And even if you have been in the US a long time and have US citizen children, you will not be allowed to stay unless your citizen (or LPR) children (or spouse or parents) would suffer “extreme and exceptionally unusual hardship.” This form of relief is called “non-LPR cancellation of removal,” and is extremely difficult to qualify for.

Often for the first offense of something like DUI, defense lawyers will advise clients to take a deal for an “alternate disposition” not resulting in any jailtime.  For example, in Maryland we have a disposition called “probation before judgment” (PBJ), which is not considered a conviction under state law.  Md. Crim. Proc. §6-220(g)(3).  The only problem is that in the immigration context, conviction is defined by federal law, not state law.  INA §101(a)(48).  Under federal law, a conviction includes some finding or admission of guilt or facts and “some form of punishment,” including a suspended sentence and/or fine.  US v. Zamudio, 314 F. 3d 517, 522 (10th Cir. 2002).  To avoid a conviction, you would have to avoid imposition of any suspended sentence or fine.  So even though the defense lawyer tells you that you are getting off relatively scott-free, with some vague warning of immigration consequences, those immigration consequences need to be considered carefully.  If you have TPS, you can’t get a  second conviction for anything.

 

Counter to Claims of Border Failure, Studies Show Drastic Reduction in Mexican Immigration

In another example of reality undercutting the hysterical claims by anti-immigration proponents that border failures and a flood of new illegal immigrants require discriminatory state laws to “fill in the gap,”  the Immigration Policy Center reports that immigration from Mexico (the largest source of immigration) has decreased by 60% since 2006!  But this does not mean that the Administration’s “enforcement-only” approach is working.   Continue reading