Matter of GUEVARA ALFARO: Silva-Trevino's mandatory three-step framework supports finding that intentional sexual conduct by an adult with a child is a Crime Involving Moral Turpitude (CIMT).

In Matter of GUEVARA ALFARO, 25 I&N Dec. 417 (BIA 2011), the Board of Immigration Appeals (BIA) held that:

1. Any intentional sexual conduct by an adult with a child involves moral turpitude, as long as the perpetrator knew or should have known that the victim was under the age of 16.
2. Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.

In a decision dated April 27, 2010, an Immigration Judge terminated the removal proceedings against the respondent. The Department of Homeland Security (“DHS”) appealed from that decision. The appeal was ultimately sustained, the proceedings reinstated, and the record remanded for further proceedings.

The respondent in this case was a citizen of El Salvador  who adjusted his status to that of a lawful permanent resident in 1997. He was placed in removal proceedings after being convicted of several offenses, including unlawful sexual intercourse with a minor (statutory rape) in violation of section 261.5(d) of the California Penal Code. That section provides as follows:

Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

In Matter of Silva-Trevino the Attorney General established a three-part framework for determining whether a particular offense constitutes a crime involving moral turpitude.

• First, a categorical approach must be employed under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a “realistic probability” of being prosecuted under that statute.
• Second, if the issue cannot be resolved under the categorical approach, a modified categorical approach should be undertaken, which requires inspection of specific documents comprising the alien’s record of conviction (such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript) to discern the nature of the underlying conviction. 
• Finally, if the record of conviction is inconclusive, probative evidence beyond the record of conviction (such as an admission by the alien or testimony before the Immigration Judge) may be considered when evaluating whether an alien’s offense constitutes a crime involving moral turpitude. 

When applying Matter of Silva-Trevino to this case, the BIA analyzed this case as follows:

• It first analyzed section 261.5(d) of the California Penal Code under the categorical approach. Since the statute does not require a perpetrator to have engaged in intentional sexual contact with someone he or she knew or should have known to be a child, there is a realistic probability it could be applied to conduct that does not involve moral turpitude. The offense prohibited by section 261.5(d) is therefore not a categorical crime involving moral turpitude under the first step of Silva-Trevino. 
• Applying the second step, the BIA found that there were no documents in the record of conviction establishing that the respondent knew or should have known that his victim was a child.
• The only remaining step of Silva-Trevino is the third, which provides for consideration of probative evidence beyond the record of conviction. For this step, the BIA analyzed the respondent's testimony before the Immigration Judge. 

Because the BIA generally lacks the authority to make findings of fact in the course of deciding appeals (8 C.F.R. § 1003.1(d)(3)(iv)), it remanded the case for the Immigration Judge to make specific factual findings regarding whether the respondent knew or should have known that his victim was a minor, taking into consideration the respondent’s prior testimony before the Immigration Court and any other relevant evidence.

My Trip to the U.S. Supreme Court

I recently went to the U.S. Supreme Court to hear the oral arguments in the case of Carachuri-Rosendo v. Holder.  As any good parent would do during Spring Break, I decided to take my 15 year-old son with me.  "This case will rock your socks" I promised him, so off we went.  

Well, we didn't quite make it to hear Carachuri-Rosendo v. Holder, but we did get to hear a bit of what ended up being Robertson v. U.S. The issue in that case was whether an action for criminal contempt may constitutionally be brought by a private person.  Ok, so the issue wasn't as appealing as Carachuri-Rosendo which involved removal based on multiple criminal drug offenses, but we had to do with what we had. The transcript of Carachuri-Rosendo is quite interesting to read.  

I honestly thought I was being an overachiever by being in front of the Supreme Court at 8:15am, but to my surprise there were about 150 people ahead of us when we got there.  That pretty much quashed any wishful thinking on our part that we would get to hear oral arguments for Carachuri-Rosendo.  The line grew even longer shortly after we got there which gave us some twisted hope that we would at least get to see a couple of minutes of the oral arguments.  After all, the nice people at the Supreme Court wouldn't let several hundred people wait in line for several hours and not allow them to at least get a peak - right? Well, we had plenty of time to talk with the assistant principal of a school in New Jersey that was in front of us (she was kind enough to take the picture included in this post), and the married couple behind us that were also educators but from Chicago.  "It's ok" I would reassure my son, "the second case is even better" (or so I hoped).

We waited in line for about two hours before they split the line into two groups: those that wanted to get a chance to hear the entire second oral argument of Robertson v. U.S. and those that only wanted to hear 3-5 minutes.  Apparently the way that it works is that those that were in line early enough could get to hear both the first and second arguments if they wanted to. I figured that those that were brave enough to battle the elements and be there at 6:30am were probably motivated enough to stay for both arguments so we decided to get in the 3-5 minute line.  I'm glad we did because from what I could tell only about 15 people decided not to hear the second case and left.  After 15 or so people were ushered in to replace those that had left, the guards dismissed the 150+ people from the first line. Among them were the assistant principal from New Jersey and the two teachers from Chicago.     

The same day of our visit the U.S. Supreme Court handed down its decision on Padilla v. Kentucky which was argued in October 2009.   The U.S. Supreme Court basically held in that case that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation.  The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. For more on this very important case you can read SCOTUSwiki or the Washington Post article that recently came out.

In all, being able to see the Justices live was a surreal experience. Albeit for a brief three minutes, seeing and hearing the Justices was well worth the four-hour wait. During our time there we heard Justices Roberts, Scalia, Alito, and Sotomayor involved in quite lively discussions with the attorney arguing the case. If you've never visited the U.S. Supreme Court I encourage you to do so. You will find plenty of useful information about the cases on the U.S. Supreme Court's website, including their Visitor's Guide to Oral Argument and the U.S. Supreme Court Calendar. There are still several oral argument days left in April. Another great resource if you want to read more about the Supreme Court and the cases before the Court is SCOTUSblog or SCOTUSwiki.

Why You Shouldn't Withhold Important Information From Your Immigration Attorney

There are many important reasons why clients should not withhold important information from their attorneys. In my years working as an immigration attorney I have encountered people that, for one reason or another, have decided to hide important information that would have avoided problems in the future. Most people that fit this category are actually well-intentioned people that are extremely embarrassed by their past. Of course, there are some that think (or hope) that by not disclosing an arrest, that somehow no one will realize it. Hopefully the client feels comfortable enough with their attorney to confide in them very personal details about their past, especially when they have had any contact with the criminal justice system. The attorney also plays an important role in extracting some of this information and bringing the issue to the floor so an open and honest conversation can follow. It’s important that the applicant understand that the U.S. Citizenship and Immigration Services (USCIS) will require fingerprints to be taken as part of the application. At our office, not only do we ask every client whether they have ever been arrested or convicted whether in the United States or any part of the world, but we also have them complete a questionnaire that has several questions geared towards eliciting this type of information.

When in doubt, we have clients complete an FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet. The FBI Rap Sheet is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. Once submitted, the results normally arrive within 30-60 days. We recently had a case where the client mentioned that he “might have had” an arrest for being drunk in public many years ago. When the FBI Rap Sheet came back, it turns out that the arrest was for defrauding a taxi driver of his fare (while he was drunk). He was convicted of this offense which had greater immigration implications than a simple drunk in public offense since it had elements of “fraud” and “theft”.

No one wants to hear for the first time, coming from an immigration officer, “tell me about this arrest in ….”. I’ve had that happen to me a couple of times and it is not a good experience. In the best of cases the newly discovered conviction does not present any major problems (apart from the credibility issue) because it is not a ground of inadmissibility or deportability. In the worst of cases, the client never should have applied for an immigration benefit to begin with and the person now finds himself in deportation proceedings.

In all, the client’s interests are better served by having an open and honest conversation about these topics. Although momentarily uncomfortable for the client, being straightforward about their past can not only save them thousands of dollars in legal fees, but a lot of heartache for them and their family in the future.

A Petit Larceny Conviction Can Result in Deportation. In Fact, It Can Render a Person an "Aggravated Felon"

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. Take for example the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia. He went to a local store and stole an item worth less than $50. Petit Larceny in Virginia is a Class 1 Misdemeanor punishable by a maximum of 365 days in jail and/or a fine. The individual hired a criminal law attorney that was not aware of the immigration consequences of pleading guilty to this offense. The individual plead guilty and was sentenced to 365 days in jail but with everything suspended. Everyone went home happy until later on that afternoon when Immigration and Customs Enforcement (ICE) stopped by his house to arrest him and placed him in deportation proceedings.

How could things go terribly wrong for this Lawful Permanent Resident? For starters, a suspended sentenced does not count for immigration purposes. As in this case, although the individual did not spend one full day in jail, immigration law only considers the actual sentence of 365 days. Additionally, this theft offense, coupled with a sentence of 365 days, made this individual an "aggravated felon" for immigration purposes. Because his offense is an aggravated felony, he remained in jail and was subsequently removed. A little bit of negotiating with the prosecutor may have avoided his deportation. For example, he would have been able to retain his LPR status had he actually spent 179 days physically in jail rather than having his entire sentence suspended. This is so because a sentence of 179 days (time served) wouldn't meet the definition of "aggravated felony" for a theft offense since it's less than 365 days. Given that the judge suspended all 365 days, he wouldn’t have had a problem with a 179 day sentence (or less) of actual time served.

There are many things that can be learned from this. One of those lessons should be that anyone facing a criminal charge, who is not a U.S. citizen, should consult with an experienced immigration attorney before pleading guilty to an offense or moves forward with their criminal case.