Matter of Vo: CIMT for Attempt Offenses

In Matter of Vo, 25 I&N Dec. 426 (BIA 2011), the Board of Immigration Appeals (BIA) held that where the substantive offense underlying a foreign national's conviction for an attempt offense is a crime involving moral turpitude, the foreign national is considered to have been convicted of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration and Nationality Act (INA).

The respondent is a native and citizen of Vietnam who was admitted to the U.S. as a lawful permanent resident in 1989. He was convicted in California of grand theft and receipt of stolen property. He was also convicted, at a later date, of attempted grand theft. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that he was deportable under INA § 237(a)(2)(A)(ii) as an alien convicted of two or more CIMTs that did not arise out of a single scheme of misconduct.

The Immigration Judge found that because section 237(a)(2)(A) does not expressly reference “attempts,” as does section 212(a)(2)(A)(i)(I), the respondent’s crime did not qualify as a deportable offense, so he terminated the proceedings. The Department of Homeland Security appealed. The BIA reasoned that, with respect to moral turpitude, there is no distinction between the commission of a substantive crime and the attempt to commit it. Noting that Congress added the “attempt” language to various sections of the Act at different times, the Board determined that it could not reasonably conclude that the inclusion of attempts in those other sections represented a unified design to effectuate a single intent or that Congress’ express inclusion of attempt offenses in some sections indicated its intentional exclusion of them from other sections.

Since grand theft is a CIMT, the respondent's attempted grand theft was also a CIMT, rendering him deportable based on his convictions. Therefore, the BIA concluded, the respondent is deportable as charged for a crime involving moral turpitude within the meaning of the statute.

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.

Immigration Enforcement on Steroids. Precursor to Comprehensive Immigration Reform (CIR)?

The Department of Homeland Security (DHS) recently announced unprecedented immigration enforcement statistics achieved under the Obama administration, including the removal of 392,000 noncitizens - 195,000 of which were convicted criminals. Also announced was the audit of more than 3,200 employers suspected of hiring illegal labor, and the approximately $50 million in financial sanctions imposed.  

“This administration has focused on enforcing our immigration laws in a smart, effective manner that prioritizes public safety and national security and holds employers accountable who knowingly and repeatedly break the law,” said Secretary Napolitano. “Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.”

Who would have thought that the Obama administration would be credited with a more than 70 percent increase in removal of criminal aliens from the Bush administration.  Could this be enough to convince skeptical Republicans to consider the viability of Comprehensive Immigration Reform (CIR)? 

The way that I see it, the argument of my skeptical Tea Party colleagues goes something like this: "Are you kidding? CIR? You're insane. Look, when President Reagan signed a sweeping immigration reform bill into law in 1986, the promise was that there would be a major crackdown to include tighter security at the Mexican border, that employers would face strict penalties for hiring undocumented workers, and that there wouldn't be a problem of illegal immigration anymore. 25 years later, we have 15 million more undocumented individuals here."  I see their point, somewhat.  These are fighting words after all, and that's why I enjoy talking to my Tea Party friends, over tea and crackers (no pun intended), and I avoid the issue of immigration altogether (most of the time).

Maybe President Obama is a genius after all (on the issue of immigration - mind you). If my conspiracy theory is right, President Obama is laying the groundwork to push CIR forward in the Spring of 2011. He'll bring all the skeptics together and say: "Now hold on, I know I'm not the father of the modern conservative movement, but you wanted troops on the border - and I gave it to you; You wanted more deportations, and I gave it to you - 70% more than your beloved President Bush; You wanted more work site enforcement, and I gave it to you; You wanted strict penalties for employers who hire undocumented workers, and I gave it to you; You wanted nothing to do with "amnesty", so I gave you "comprehensive immigration reform" or "earned legalization" - pick the term you like; WHAT ELSE DO YOU WANT?" Ok, maybe he won't be yelling at the end, but it sure would be nice to watch. 

Commandment #2 of Applying for Naturalization: Thou Shall Not Pretend Never Have Been in the Big House (Unless You Truly Haven’t)

There are several requirements an applicant must meet before becoming a naturalized U.S. citizen. One of these requirements is that the applicant must be a person of “good moral character”. What constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.

There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. Factors that affect this determination include: refusing to pay court-ordered child support; failing to file or to pay income taxes; neglecting to register for Selective Service (if you are required to do so); lying to obtain an immigration benefit; driving drunk or habitual drunkenness; adultery; and several other grounds, including being arrested or convicted for any criminal offense whether in or outside of the United States. Although not every arrest or conviction renders the applicant ineligible to apply for U.S. citizenship, an applicant who has ever been involved in any criminal proceeding should consult with an experienced immigration attorney before submitting an application with the U.S. Citizenship and Immigration Services.

All arrests and convictions should be analyzed by an experienced immigration lawyer to determine whether they render the applicant ineligible to apply or whether the applicant’s criminal history would not only result in the denial of the application, but possibly the initiation of deportation proceedings. If the applicant elects to move forward with the application, all arrests and convictions should be disclosed – even if the records have been expunged. 

It is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. To read the immigration definition of what constitutes a conviction INA § 101(a)(48) should be consulted. A person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. For example, a Lawful Permanent Resident (LPR) is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. Thus, an individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can be removed, depending on the nature of the conviction.

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 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 process.

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.

As most of our readers know, criminal convictions can have very serious consequences in an immigration matter. We recently posted an entry about the case of a Lawful Permanent Resident (LPR) who was convicted of Petit Larceny in Virginia and later placed in deportation proceedings. We encourage our readers to read that entry to see the interplay between state and federal law as it relates to the removability of criminal non-citizens.  There are ways that criminal and immigration counsel can work together to achieve the best possible results that could minimize or prevent immigration consequences.

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.

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.

Custom and Border Protection (CBP) Revokes Notice to Appear (NTA) for Client Returning From Trip Abroad

Our law firm recently worked with Customs and Border Protection (CBP) to have them return our client’s alien registration card or “green card” and to have them revoke the Notice to Appear (NTA) which had placed our client erroneously in removal proceedings. Our client was returning from a trip abroad and was detained upon inspection when their system showed incomplete information regarding a past criminal matter that did not result in a conviction.

The whole ordeal began when our client was returning from a short trip abroad. Like many times before, she presented her alien registration card or "green card" to the CBP officer upon disembarking the plane. This time though, she was in for an unpleasant surprise. As the CBP officer reviewed his computerized system, he noticed a "hit" or arrest in our client's background and placed her in secondary inspection. Secondary inspection is a separate, more thorough screening that normally lasts several hours. During this secondary inspection, the CBP officers involved misread the information on their computer, and instead of inquiring further with their legal department, they confiscated our client's green card and issued a Notice to Appear (NTA) which basically placed our client in removal proceedings.

When our client first came to see us she was understandably upset about the entire situation. Upon further review of her case, and close examination of her record, we determined that there were in fact no convictions and therefore the NTA should not have been issued. We contacted CBP and for the next several days corresponded back and forth until the issue was resolved in favor of our client. The NTA was ultimately revoked and our client got her green card back.

On a recent blog we discussed the dangers lawful permanent residents face when traveling abroad when they have previous criminal convictions. We encourage our readers to review that entry as it outlines factors that LPRs should consider before traveling. LPRs that have been arrested in the past but never convicted should travel with a certified copy of the Final Disposition Record. However, it is very important to highlight that the definition of what exactly constitutes a conviction is different for immigration purposes. Thus, a person might not have a conviction for state purposes or even have had the case expunged, and still have a conviction for immigration purposes. We will discuss the immigration definition of what constitutes a conviction on a different post. LPRs that are not sure whether they have a conviction for immigration purposes are urged not to travel until they have an experienced immigration attorney review their record.

PLEASE NOTE THAT THE RESULTS OF PAST CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN FUTURE CASES.

Attention Lawful Permanent Residents With Past Criminal Convictions: Your Trip Abroad Might Just Be The Last One

Lawful Permanent Residents with past criminal convictions should think twice before traveling abroad. Every year the Department of Homeland Security (DHS) removes scores of LPRs that were detained and placed in removal proceedings upon their return from a trip abroad. At a minimum, prospective LPR travelers should seek the guidance of an experienced immigration attorney to determine whether their particular conviction subjects them to removal from the U.S.

Although traditionally an LPR was not deemed to make a new admission into the U.S. upon his or her return if the trip was "innocent, casual, and brief", presently Congress has defined when an LPR will be regarded as seeking a new admission. This issue of "admission" is significant for an LPR who would not be subject to removal from the U.S. but who might be inadmissible upon their return from a trip abroad.

An LPR will be regarded as seeking a new admission if he or she has committed a criminal offense under the provisions of the Immigration and Nationality Act (INA) that deal with the criminal grounds of inadmissibility. The process normally works as follows. An LPR is returning from a trip abroad and presents his green card (I-551) to the Customs and Border Protection (CBP) officer in order to be admitted. The officer reviews his/her computerized system and notices a “hit” or arrest in the person’s background. They place the LPR in secondary inspection which is a separate, more thorough screening that normally lasts several hours. In this secondary inspection the LPR is questioned about, among other things, the arrest or conviction at issue. While the LPR is waiting in the secondary inspection area, CBP officers are reviewing their data and checking with their supervisors whether they have enough to charge the LPR under one of the grounds of inadmissibility. If CBP confirms that the prior conviction is not a ground of inadmissibility, they will release the LPR and return the alien registration or “green card” back to him or her.  The LPR being released should not expect an apology from CBP - none will be forthcoming unfortunately.  Also, the LPR being released should not expect not to go through the same procedure next time around. If CBP believes that the conviction renders the LPR inadmissible, or they simply can’t confirm whether it is or not, they will confiscate the alien registration card, and issue the charging document which is the Notice to Appear (NTA). The LPR is now placed in removal proceedings, and if not subject to mandatory detention, will be released to await his or her hearing before an immigration judge.

Keep in mind that the fact that an LPR with a criminal background has managed to travel back and forth for a period of time without being detained is no protection or guarantee at all. I’ve had several clients that have traveled for years without being detained, until their last trip when the CBP officer noticed their arrest and conviction. The fact that the offense might have occurred many years ago is irrelevant for removal purposes. An LPR is subject to removal from the United States for a violation of relevant immigration laws, regardless of the length of residency or the age at which it was attained. An individual who immigrated to the United States when he was a couple of months old who is now convicted of a crime at age 65 can and will be removed, depending on the nature of the conviction.

An LPR with a criminal background should weigh his or her options carefully before traveling abroad. At a minimum the person should seek the assistance of an immigration attorney in order to make an informed decision about their travel plans.  Being aware of the possible consequences gives the LPR an opportunity to not only make an informed decision, but to prepare accordingly.

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.