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
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.
Today in Baltimore Immigration Court, I was lucky to be able to help a client from Eritrea get asylum. My client had been subjected to almost six months incommunicado detention where she was raped and beaten after speaking out against the government at a work meeting. Like many Eritrean women, she had also been subjected to female genital mutilation (cutting/circumcision) that continues to cause her much pain. She was granted asylum on two grounds: membership in the particular social group of Tegrigna women opposed to FGM, and on account of imputed political opinion. I am very grateful to have been a part of helping this client get asylum protection from removal.
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