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    http://discuss.ilw.com/eve/forums?a=...613#9826008613

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    DEFINITION OF A CONVICTION

    Most grounds of deportation require a "conviction." However, unlike Massachusetts law, federal immigration law defines a conviction as:

    a formal judgment of guilt of the respondent entered by a court or,if the adjudication of guilt has been withheld, where:

    1)a judge or jury has found the alien guilty or the alien has entered a plea of guilty or of nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and
    2)the judge has ordered some form of punishment, penalty or restraint on the alien 's liberty to be imposed. 8 U.S.C.§ 1101((a)(48)(a).

    The practical result of this statutory language means that the following dispositions may
    potentially be "convictions" for immigration purposes::

    A continuance without a finding may be found to be a conviction for immigration purposes even if the charge is subsequently dismissed.8 U.S.C.§ 1101((a)(48)(A).

    A plea of nolo contendere that results in a continued without a finding or a guilty finding is a conviction for immigration purposes. 8 U.S.C.§1101(a)(48)(A).

    Even an admission to sufficient facts, with a dismissal, may be considered a conviction for immigration purposes. 8 U.S.C.§1101(a)(48)(A);See also Matter of Roldan, Interim Decision 3377 (BIA 1999).

    The key in that case is whether the judge ordered "some form of punishment,penalty or restraint." Probation, even pre-trial probation, qualifies as "some form of restraint." Therefore a dismissal upon payment of court costs, with an admission of guilt, arguably qualifies as a conviction for immigration purposes.

    HOWEVER, as long as the defendant does not admit to sufficient facts, pre-trial probation is a safe disposition and does not equal a "conviction."


    AGGRAVATED FELONIES

    THE MOST IMPORTANT PRIORITY OF CRIMINAL DEFENSE LAWYERS SHOULD BE TO AVOID "AGGRAVATED FELONY" CONVICTIONS

    Today,as a result of the change in the law, many previously "safe" charges for immigration purposes qualify as "aggravated felonies" subjecting the defendant alien to mandatory deportation and mandatory detention. This means that defendants are transported directly from state jail to federal custody and face expedited deportation proceedings. Family contacts, U.S. citizen children, and length of residence in the United States CANNOT save a defendant once convicted of an aggravated felony. There are almost no avenues of relief.

    Federal definition of a felony. Although technically immigration law calls this offense an
    "aggravated felony," the federal definition of felony includes any charge with a possible jail
    sentence of more than one year. As a result, almost every Massachusetts "misdemeanor" qualifies as a felony for federal immigration purposes, because most "misdemeanors" carry a possible sentence of 2 and 1/2 years in the House of Corrections. The "one year rule" - Any charge qualifying as (1)a "crime of violence" ((2)a "theft" charge (including receiving stolen property), (3) a "burglary charge" or ((4) "commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered "qualifies as an aggravated felony where the defendant receives a sentence of 1 year of incarceration or more, whether actually imposed or suspended. 8 U.S.C.§1101(a)(43)(A)

    Specifically:

    Crimes of Violence include any charge involving (a) an "offense that has as an element
    the use, attempted use, or threatened use of physical force against the person or property
    of another, or (b) any other offense that is a felony and that, by its nature, involves a
    substantial risk that physical force against the person or property of another may be used
    in the course of committing the offense."

    As a result, courts have interpreted this provision extremely broadly to include not only
    rape, sexual assault, indecent assault and battery, or burglary but also some seemingly
    innocuous offenses such as:

    - Assault and Battery
    - Assault and Battery with a Dangerous Weapon (even "shod foot" cases))
    - Breaking and Entering (the immigration court has already held that during the night-time
    into a residence is a crime of violence)
    - Statutory Rape
    - Arson

    Therefore, not only is it important to avoid conviction for these offenses, and any other
    charge involving force or the threat of force, it is especially important to avoid a 1-year jail
    sentence on such charges.

    Drug offenses

    Almost any drug offense involving sale, distribution, manufacture, etc. qualifies as a
    "trafficking offense" and therefore mandates deportation. Specifically:

    Distribution, Possession With Intent to Distribute, Conspiracy to violate controlled
    substance act, or any other Sale/MFG/Drug Distribution offense.

    Second offense possession under certain circumstances. Although "first offense" possession of a controlled substance is deportable (except simple possession of 30 grams
    or less of marijuana), it is not an aggravated felony, mandating deportation. Second offense may qualify as an aggravated felony depending on the circumstances. As this is a very complicated analysis, you should consult with an immigration attorney. With drug offenses,the SENTENCE IS IRRELEVANT. Therefore a first offense
    possession with intent to distribute is an Aggravated Felony, even with a 6-month jail
    suspended sentence.

    Attempt/Inchoate Offenses

    The definition of "aggravated felony" specifically includes any attempted aggravated
    felonies or conspiracy to commit an aggravated felony. Therefore an attempted but
    unsuccessful burglary qualifies as an aggravated felony where the defendant receives a sentence of 1-year or more regardless of whether the sentence is suspended or imposed.


    DOMESTIC VIOLENCE OFFENSES

    A conviction after September 30, 1996 for an offense involving domestic violence, stalking or violation of a protective order involving "protection against credible threats of
    violence, repeated harassment, or bodily injury", or child abuse or neglect is a deportable
    offense. 8 U.S.C.§ 1227((a)(2)(e). The "victim" in a domestic violence case under state
    law qualifies as a "victim" for the purposes of deportation. Therefore if the victim in your case is entitled to protection under state laws against domestic violence, immigration may consider the conviction a crime of domestic violence. As a result, arguably, a conviction for assault on a parent or child may qualify as a crime of domestic violence.


    DETENTION and DEPORTATION

    Generally, criminal aliens are placed in deportation proceedings while incarcerated. The INS serves them a "notice to appear" and a detainer so they cannot obtain release prior to deportation. Typically, the INS cannot deport someone until after s/he completes the sentence although there are procedures to request an international transfer while still serving time. Once the criminal sentence is completed, INS will transfer non-citizens to a jail or detention facility such as Hillsborough County House of Corrections in Manchester, NH or even a federal detention facility in Oakdale, Louisiana. Throughout the entire immigration proceedings, aggravated felons and many other criminal aliens may be subject to mandatory detention and cannot obtain bail no matter how long they have lived in the United States, how few convictions, or how many family members reside in the United States. As a result, IF ALL ELSE FAILS, avoid committed jail time. The most common way INS locates aliens convicted of crimes is through the jail system. The jail is REQUIRED to report any alien convicted of a crime to the INS and the INS virtually always initiates deportation proceedings. As stated above, the defendant/alien is not entitled to return home, make bail and is not eligible for most forms of relief where s/he is convicted of an aggravated felony.

    Avoiding jail IS NO GUARANTEE. Many aliens / defendants are caught through INS sweeps, through reports by probation officers, ADA 's, and through mandatory reporters in the federal government (such as the Social Security Administration).


    VACATING CONVICTIONS

    Often, a non-citizen's only remedy is to return to criminal court after he/she has been convicted, to have that conviction vacated.The most common ground for vacating convictions in the immigration context is that the person did not receive the required alien warning that he/she may face "deportation, exclusion from admission or denial of naturalization."

    M.G.L.ch.278 § 29D requires that the judge advise all criminal defendants, before accepting a guilty plea, that if they are not citizens of the United States, their conviction may result in deportation, exclusion from admission or denial of naturalization. The statute places the burden on the government to establish that the warnings were given. If it fails to do so, the conviction must be vacated. If you notice that the judge has not given the required alien warnings, request a tape of the proceedings from the clerk, and give it to your client (most courts destroy the tapes after several years).

    MOTIONS TO REVISE AND REVOKE

    It is very important, due to the rapidly changing nature of immigration laws, to ALWAYS file a motion to revise and revoke at the conclusion of a case. This can easily be accomplished by bringing a standard motion to the court and by signing the affidavit while in court. The motion MUST BE FILED WITHIN 60 DAYS of the sentencing, otherwise, the court may not even have jurisdiction to reduce or amend an immigrant's sentence. Filing a motion to revise and revoke can easily prevent deportation where the INS seeks to deport the individual based on the length of the sentence. Reducing the length of the sentence can also make an immigrant eligible for additional forms of relief from deportation.

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  • Guest's Avatar
    Guest replied
    A native and citizen of Trinidad and Tobago, a LPR of the United States for almost 25 years, and the father of a 10-year-old American citizen petitioned for review of the denial of his Motion to Reopen a decision in absentia to deport him. The motion was denied because he was approximately 35 minutes late for his hearing on January 11, 2002. 8 U.S.C. § 1229a(b)(5)(A) (2000).

    Herbert's problems started with a criminal conviction in 1999 for domestic abuse of a woman who is now his fiancee and the mother of his child. Herbert pled guilty in Massachusetts state court to family abuse/assault and battery, assault and battery on a police officer, and resisting arrest. Herbert was originally sentenced to two years in prison; the court, however, granted his motion to reduce the sentence to a 364-day suspended sentence. The INS charged Herbert with being subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) on the grounds that he had been convicted of an aggravated felony and sentenced to at least a year in prison.

    [...]

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  • Guest's Avatar
    Guest replied
    Exactly "virginia" and "alabama":

    Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999 -- Arizona aggravated DUI conviction is a Crime Involving Moral Turpitude)

    Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001)(conviction under different Arizona DUI statute) is NOT a Crime Involving Moral Turpitude - depending on the exact language of the statute.

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  • Guest's Avatar
    Guest replied
    Usually not.

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  • Guest's Avatar
    Guest replied
    Thanks a lot for the link. I'm not sure what the "custody" in the 2nd bullet point there means:

    If the person received six months custody time as a condition of probation and was released from custody in four months, because of conduct credits, that counts as six months sentence for immigration purposes.


    Is the "custody" equevalent to probation, or supervised probation?

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  • Guest's Avatar
    Guest replied
    Then what about deferred adjudication, which often comes with supervised probation. Would the two combined be equivalent to "imposed imprisonment"? The verdict is also important besides the maximum possible imprisonment for at least admissibility purpose. Say if there's a deferred adjudication combined with supervised probation of 8 months, does it exceed the 6 month imprisonment and thus render an alien inadmissible (if the maximum possible imprisonment is less than a year)?

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  • Guest's Avatar
    Guest replied
    technically the actual or suspension or "time served" doesn't matter. What matters for immigration purposes is the maximum possible sentence that can be imposed on a certain crime. If there are any discrepancies, INS may use federal guidelines. As a "thumb of rule" it means:

    - for absolute removability and inadmissability, there needs to be a confirmed "conviction" (what may not qualify as a conviction for a citizen (plea bargains with noles for instance are fequently not considered convictions in state courts. Is may very well be a conviction for an alien)
    - anything that may be punished by 365 and + days (detaintion, community service, supervision, parole and what have you included) is an aggravated felony for immigration purposes, even if it is not considered an aggravated felony in the state.
    - anything that is being charged and convicted as an aggra fel in the state is automatically such for federal purposes as well.
    - certain charges + conviction do not matter if they're misdemeanor or felonies, they reender the alien immediatly removable upon conviction regardless (and time accruel for chancelation purposes stops) - such as drug convictions.

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  • Guest's Avatar
    Guest replied
    I love to see Anon right, and deport aliens as per Virginia's example. Criminal aliens should be deported, at least citizens feel this way they have an advantage in comparison to immigrants when not being sent to some hell even if they do crimes.

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  • Guest's Avatar
    Guest replied
    Are U a lawyer, Anon., so that we can believe yo? If so, tell us so, and let's suspend all these boards...

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  • Guest's Avatar
    Guest replied
    Immigration laws are mandated by the federal (U.S) government, not state government.
    Each state may handle crimes against the state, or crimes against county or municipality differently. When addressing the breaking of federal immigration law, it is the federal court which defines and administers penalties, not the state.

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  • Guest's Avatar
    Guest replied
    Not in all states batteries/misdemeanors would trigger deportation from the INS's part. For instance a man in Alabama was convicted of misdemeanor assault and sentenced to a 30-day jail term, which the trial court immediately suspended, placing him on 2 years of unsupervised probation. Here the suspended term of imprisonment is clearly only 30 days, regarless of the probation period of 2 years. Understandably it cannot make the alien deportable since INS could not fit the misdemeanor assault into the caregory of "crimes of violence"/"aggravated felony" for which a custody term of 1-year is imposed that would render the alien deportable.

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  • Guest's Avatar
    Guest replied
    Wow, a midemeanor battery offense treated as an aggravated felony!!! Man, do these laws mean something for poor immigrants!

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  • Guest's Avatar
    Guest replied
    Casey,

    Depends on the state. I read some time ago, for instance, that a Ghana national who had entered the United States as an B-1 business visitor was convicted a year later of an misdemeanor offense
    of battery in Virginia, being sentenced to 12 months of confinement with imposition of the sentence suspended, and he was placed on probation
    for 12 months.

    After 6 months (during those 6 months he was on deportation proceedings) the alien was served with a "Notice of Intent to Issue Final Administrative Removal Order," which explained his rights to contest the 'removal order'. He did not submit any documents rebutting the charges, so the INS issued a Final administrative Removal Order for his deportation from the United States on the grounds that he was an alien who had been convicted of an aggravated felony and thus was deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) -- taken into INS custody, then deported.

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  • Guest's Avatar
    Guest replied
    An immigration officer knows criminal law. It's part of his or her responsibility to make a determination about you. He would probably ask you to provide the order of the criminal judge, so it's up to you if you want a lawyer with you.

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