Sentence Served?

[Houston]

Browsing through the Senate bill I found some strange language that could cause some serious problems for agricultural workers. When it comes to Blue Card adjustment, it's notorious that the language of the statute forbids benefits to those convicted of a misdemeanor that have "served a sentence of 6 months or more". Everywhere else, the language used is "term of imprisonment" and the Courts have decided that such time relates only to time spent in a correctional facility. However, the new language of "sentence served" could relate to probation and the payment plans that spam over a period of several months, there's no clear reference to "term of imprisonment".
If this is correct, a person sentenced to four months for assault could adjust while a person sentenced to a year worth of probation for a minor offense could not.
If we were to reconcile this provision with the rest of the bill, it would appear that it relates only to times of imprisonment, but the language is not clear. Any opinions?

[Houston]

Browsing through the Senate bill I found some strange language that could cause some serious problems for agricultural workers. When it comes to Blue Card adjustment, it's notorious that the language of the statute forbids benefits to those convicted of a misdemeanor that have "served a sentence of 6 months or more". Everywhere else, the language used is "term of imprisonment" and the Courts have decided that such time relates only to time spent in a correctional facility. However, the new language of "sentence served" could relate to probation and the payment plans that spam over a period of several months, there's no clear reference to "term of imprisonment".
If this is correct, a person sentenced to four months for assault could adjust while a person sentenced to a year worth of probation for a minor offense could not.
If we were to reconcile this provision with the rest of the bill, it would appear that it relates only to times of imprisonment, but the language is not clear. Any opinions?

[sake]

Houston,
Do you know if a person that had been detained for immigration violation, imprisoned for several months and let out for bail could also be subjected to this language?

Also, if a person has not received a deportation order but violated ICE's request to check in (fail to check in ) could also subject to Kyl/Cornyn ammendment to be categorized as an Absconder?

[Houston]

A conviction is required to trigger the Kyl amendment. A conviction is not an indictment or an arrest but the official adjudication of guilt by a court.
Remember though, there is a waiver available (one that's NOT based on the extreme hardship concept) for those ordered removed.
Any other opinions on the "six months" issue?

[sappyconifer]

Well I don't know, but could it bear any relationship to the distinction between a sentence imposed versus maximum sentence available and how it applies with removability versus inadmissibility?

[Houston]

The statute talks about "sentence served", so it must relate to the actual time behind bars if we were to reconcile it with the rest of the INA. But also, the rest of the INA does not care about the time "SERVED" only time "ORDERED" by the court. Also, a sentence could be probation, or restitution.... how about that?

[sappyconifer]

Hmm. What I really meant was as follows:

The criminal grounds of inadmissibility are contained in the immigration statute at INA Sec. 212(A)(2), 8 U.S.C. 1182(a)(2):
Sec. 212(a)(2)(A)(I)(i) conviction for one crime of moral turpitude (CMT);
"petty offense exception" where possible sentence of not more than one year and person did not receive more than six months (here they use a maximum possible sentence)

AND

The criminal grounds of deportability are listed in the immigration statute at I.N.A. Sec. 237, 8 U.S.C. 1227: Sec. 237(a)(2)(A)(I) conviction for one crime involving moral turpitude (CMT), committed within 5 years of admission to U.S., for which sentence of one year or longer may be imposed (here they use the imposition of the sentence)


Not really germane to this conversation,. but interesting all the same...

Certain provisions of the aggravated felony definition, as currently applied by the INS, Immigraton Courts and the Federal Circuit Courts, have been found to to include certain offenses classified as gross misdemeanors under the Revised Code of Washington (RCW) – such as assault in the fourth degree and theft in the third degree where the noncitizen received a 365 day sentence (regardless of time suspended). This has created the absurd situation where a noncitizen who is convicted of gross misdemeanor theft and sentenced to 365 days with all or most of the days suspended will be an aggravated felon under immigration law. However, the defendant who is convicted of theft in the second degree, a class B felony, and sentenced to three months imprisonment is not an aggravated felon.

This issue of "aggravated misdemeanors" is currently unresolved and the subject of much litigation in the federal courts. See Matter of Crammond, Int. Dec. 3443 (BIA 2001); U.S. v. Christopher, 239 F.2d 1191 (11th Cir. 2001); U.S. v. Pacheco, 225 F.3d 148 (2d Cir. 2001); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000); U.S. v. Graham, 169 F.3d 787 (3rd Cir.), cert. denied, 528 U.S. 845 (1999). Thus, it is imperative that noncitizen gross misdemeanor defendants do not receive a sentence imposed of 365 days.


It is an all-to-common belief among judges, prosecutors and defenders (as well as noncitizens) that simple misdemeanor and gross misdemeanor offenses do not trigger deportation/removal. This could not be a more erroneous or dangerous assumption. Not only can misdemeanor and gross misdemeanor offenses render noncitizen defendants deportable/removable, sometimes these convictions can trigger more severe consequences than a felony conviction. For example, a conviction for malicious mischief in the second degree under RCW 9A.48.080, a Class C felony, is not a crime of moral turpitude under current interpretations of immigration law. See Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995). However, a conviction for attempted theft in the third degree under RCW 9A.56.050, a simple misdemeanor carrying a maximum penalty of 90 days, IS a crime of moral turpitude that may render a noncitizen deportable/removable. See U.S. v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999).

[sake]

[quote]there is a waiver available (one that's NOT based on the extreme hardship concept) for those ordered remove
[quote]

What are those situation that's not based on the extreme hardship?

[Lerka Я]

Waivers:

``(i) demonstrates that the alien did not receive notice of removal proceedings in accordance with paragraph (1) or (2) of section 239(a); or

``(ii) establishes that the alien's failure to appear was due to exceptional circumstances beyond the control of the alien; or

``(iii) the alien's departure from the U.S. now would result in extreme hardship to the alien's spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.

[Houston]

You're right, I missed the hardship part of the waiver, so in reality this is just another waiver like the current 601 that takes years to adjudicate.
But the new bill deviates from the current standards of criminal conduct under INA. The 3-misdemeanor concept is broad, a traffic ticket is a misdemeanor in many states, jaywalking could also be a misdemeanor.
So, how come that all misdemeanors are considered to weight the same? At least under the moral turpitude analysis, it's a corrupted state of mind coupled with evil and vicious intent that basically makes the crime a deportable offense, but under this bill, speeding could have the same weight as a conviction for assault. That does not make much sense, but it does create a state of panic that could prevent many potential applicants from obtaining benefits because of a few traffic citations and other "paperwork" offenses.
An alien who gets pulled over because for speeding, gets a ticket for broken tail light and cracked windshield. Your three misdemeanors under MVC.
An alien who plans an assault but falls short of murder, gets a skilled lawyer and enters a plea to misdemeanor assault first offense under CalPen. Only one misdemeanor and the offense of conviction is not a CIMT.
Guess who is ineligible? ... And the bill is not a joke?