Is a Criminal Conviction Necessarily the Death Knell to a Naturalization Application?

Over the past few years, it has been my experience that USCIS has been very thorough in analyzing naturalization applications.  This has been confirmed to me by other experienced immigration lawyers.  USCIS sees the naturalization application as its last chance to uncover any fraud in the immigration process.  So, it will go back and examine the basis for the applicant's permanent residency.  USCIS will also be sure to look into the applicant's criminal history.  USCIS will want to make sure that the applicant meets all of the requirements of citizenship.

One such requirement is that the applicant have five years of good moral character.  By law, if a person has a criminal conviction for a crime involving moral turpitude (such as thefts, fraud and crimes of violence) in the five years preceding the naturalization application, then the applicant will not qualify for having five years of good moral character, and thus will not qualify for citizenship.

But, does that necessarily mean that every conviction for a crime involving moral turpitude in the past five years is the death knell for a citizenship application?  Not necessarily.  There is case law that says that when a person's conviction qualifies for the petty offense exception, then that person is not automatically disqualified for citizenship.

The petty offense exception holds that where the maximum possible sentence for a crime is one year in jail, and where the actual sentence is less than six months, then even if the conviction is for a crime involving moral turpitude, the applicant can still be considered for citizenship.

First, that means that if a permanent resident is charged with a crime involving moral turpitude, one of the goals of the criminal representation should be to reduce the charge to a misdemeanor, and seek an actual jail sentence of less than six months.  For example, if a person were charged with larceny in Virginia, which is a felony, a possible strategy for the criminal defense attorney could be to negotiate a plea for petty larceny, which is a misdemeanor with a maximum possible sentence of one year, and seek less than six months in jail time.  The defense attorney would need to keep in mind that the whole sentence is considered, even if most of it is suspended.  Thus, if a person receives a sentence of 360 days, with 330 suspended, he would not qualify for the petty offense exception.  But, if that same person receives a sentence of 175 days, with 145 suspended, then, even though the actual time spent in jail is the same, he would qualify for the petty offense exception.

Nonetheless, the conventional wisdom among immigration attorneys has been that even if the conviction qualifies for the petty offense exception, and thus does not automatically disqualify a person from having good moral character, the conviction can still be used by an adjudicator in weighing discretionary factors.  Our advice has typically been to wait until five years after the conviction to apply for citizenship.

While past cases cannot predict future results, I have had some success in naturalization applications even when there has been a criminal conviction in the past five years.  When faced with a client who has gone forward with a naturalization application despite the criminal conviction, the first step is to make sure that the conviction qualifies for the petty offense exception.  Under the Supreme Court case of Padilla v. Kentucky, there is some avenue for an applicant to correct mistakes made by well-intentioned criminal defense attorneys who just did not understand immigration law.  If the applicant is in a situation where the full jail sentence was for greater than six months, but most of it was suspended, it could be possible to go back and re-open the case to ask the court to reduce the full jail sentence to less than six months.  To do this, first the conviction must be less than two years old.  Then you have to work hard to convince the Commonwealth's Attorney and the Judge to go ahead with the plan.  This is not always an easy task.

Once you are sure that the conviction qualifies for the petty offense exception, the next step is to build a record of good moral character.  The applicant will need to show that the sentence was served, that all court costs were paid, that any restitution was paid, that any probation time was served, and that any required community service took place.  To be safe, the applicant should do more than this.  Affidavits and letters from friends, family, pastors, employers and community leaders, attesting to the applicant's good moral character will go a long way to convince the adjudicator that despite the mistake that led to the conviction, this is a person deserving of citizenship.

It must be emphasized that this course of action does not guarantee success.  If you have an adjudicator who believes that the conviction itself, even though it is a petty offense, is sufficient in weighing the discretionary factors to deny citizenship, then you will be out of luck.  There is an appeals process.  But, it is extremely difficult, if not next to impossible, to overturn a discretionary call like that.

Citizenship applications should not be treated as simple, run of the mill proceedings.  An applicant would be well-advised to consider how USCIS will analyze the application.  It will likely make sense to consult an attorney first, and go over everything, from conviction records to how the applicant became a permanent resident in the first place, to make sure that the application will go smoothly.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Do I Need a Lawyer to Apply for Citizenship?

While attending a class with other immigration lawyers, I heard a presenter express her experience that USCIS is reviewing the basis of a person's permanent residency in many more cases when that person has applied for citizenship.  Indeed, I have personally come across a number of people who found themselves in trouble after submitting a naturalization application because USCIS had uncovered some problem with their permanent residency.  Indeed, other immigration lawyers stated that the situation had gotten to a point that when a person comes to them for assistance in filing a naturalization application, the lawyers are now going in depth in questioning the potential client on how they became a permanent resident.

When a person submits a naturalization petition, USCIS does not simply adjudicate whether that person should become a citizen.  Quite the contrary, USCIS sees this a its last opportunity to look into the background of the applicant, and be sure that everything in the applicant's background is in order.  This means that the adjudicator routinely reviews the applicant's basis for applying for permanent residency in the first place, to ensure that the applicant was granted permanent residency properly.

While it may no seem fair, if, during the naturalization application process, the adjudicator finds something was wrong with the way that the green card was issued, he or she can recommend that the green card be revoked.

For example, if an adult child of a permanent resident was granted an immigrant visa, he or she must remain unmarried until being admitted to the United States as a permanent resident.  If that person were to get married at some point after the U.S. consulate issued the visa, but before actually entering the United States, then that person would have been unqualified to have been admitted as a permanent resident.  When applying for naturalization, that person will be required to disclose the details of all marriages.  A thorough adjudicator could notice that the date of marriage preceded the date of admission, conclude that at the point of admission the person did not qualify for the green card, and then recommend that the green card be revoked.

Similarly, there is a requirement that an applicant for citizenship show five years of good moral character.  Applicants should be aware that the FBI will be conducting a background check on them.  That means that any convictions will likely be brought to the Government's attention if a naturalization application is filed.

The bottom line is that sometimes it may be the better course simply not to apply for citizenship.  But, in order to know that, a person would likely need to consult with a knowledgeable immigration lawyer.  Thus, while the application process would appear simple, consulting with a lawyer beforehand can avoid some disastrous consequences.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Ineffective Assistance of Counsel: Padilla v. Kentucky & Post-Conviction Relief for Criminal Offenses with Immigration Consequences

On March 31, 2010, the U.S. Supreme Court issued its decision in the case of Padilla v. Kentucky, Crt. No. 08-651, which held that the failure to give advice concerning the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and thus a violation of the Sixth Amendment. Immigrants facing deportation or removal because of criminal convictions now face the possibility of using the Supreme Court’s decision to solve their own immigration problems.

Padilla was a permanent resident and veteran of the Vietnam War, where he served his country honorable. He was charged under Kentucky law for transporting marijuana, an offense that carried with it an assured deportation if convicted. According to Padilla, when considering whether to plead guilty, he asked his counsel about the immigration consequences of his conviction. His counsel told him not to worry because of the long time that he had spent in the United States. This advice was dead wrong.

After pleading guilty, Padilla faced removal proceedings. It was at this time that Padilla sought post-conviction relief to withdraw his guilty plea and face trial. The Supreme Court of Kentucky denied his request.

The U.S. Supreme Court held that the failure of counsel to provide advice on the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and remanded the case for further proceedings under Kentucky law. In reaching this conclusion, the Court made a number of key findings. First, the Court found that even though immigration is governed by civil law, the immigration consequences of a conviction are inexorably intertwined. Second, the Court noted that there was no distinction between bad advice and no advice. That is, criminal defense counsel is under a duty to provide advice concerning the immigration consequence of a conviction, even if the topic was not affirmatively brought up by the client. Finally, a key point of the Supreme Court’s decision is that Padilla sought to remedy a guilty plea that was allegedly procured by ineffective assistance of counsel.

With the Supreme Court weighing in on the subject, the question now for many facing deportation or removal is how to use Padilla to gain immigration relief.

All people being held by the government have the right to file a writ of habeas corpus. That means, that they can challenge the legality of their detention. Thus, in many instances, it may be possible now to file for a writ of habeas corpus, and argue that the detention is illegal because the conviction was based on a guilty plea procured by counsel’s bad immigration advice.

But, habeas corpus may not be available for everyone facing immigration consequences of their criminal convictions. For example, in Virginia, a habeas corpus action is only available for two years after the final judgment of the trial court, or one year after the final decision on appeal.

Virginia has one more avenue that may be available. That is the writ of error coram vobis. This is a procedure meant to correct errors that affect the validity and regularity of the judgment. In Commonwealth v. Mohamed, 71 Va. Cir. 383 (2006), a defendant attacked the length of his sentence, claiming his criminal defense counsel failed to advise him properly on the fact that the length of his sentence would cause his to be deportable. The Circuit Court of Arlington County permitted the defendant, who had served his sentence completely, to use the coram vobis procedure to reduce his sentence in order to avoid deportation proceedings.

It is important to note that Mohamed did not challenge a guilty plea itself. Indeed, in Virginia, by pleading guilty, a defendant waives a host of rights, including the right to appeal. A question remains as to whether the coram vobis procedure can be used to withdraw a guilty plea when based on ineffective assistance of counsel. The Virginia Supreme Court in Dobie v. Commonwealth, 198 Va. 762, 96 S.E.2d 747 (1957), held that coram vobis cannot be sought merely if the criminal defendant thinks he can obtain a better result by going to trial.

However, Dobie was decided long before Padilla. And, Padilla specifically addresses the situation where the guilty plea was alleged procured because of bad advice on the immigration consequences of the plea. The argument would be that the guilty plea itself is invalid because it stemmed from the ineffective immigration advice.

Such a strategy remains untested. Its success is, therefore, unknown. Moreover, this strategy faces the hurdle that guilty pleas are difficult to attack under Virginia law. However, it may be the best hope available for immigrants who have already served their sentences in Virginia, and now face the immigration consequences of their guilty plea.

Update (September 27, 2012):  The Virginia Supreme Court case of Morris v. Commonwealth has pretty much shut the door on obtaining post-conviction relief based on Padilla.  Morris held that the writ of error coram vobis and the writ of audita querela were not available in Virginia to address a claim of ineffective assistance of counsel.  The only avenue open for post-conviction relief based on a Padilla claim is a writ of habeas corpus.

There is, however, a statute of limitations on a writ of habeas corpus in Virginia.  It must be filed two years after the final judgment of the trial court, or one year after the appellate decision is final.

This creates a gross inequity in Virginia.  A person can have a conviction of a deportable crime that is ten years old.  There is no statute of limitation on the ability of the Government to use such a conviction for deportation.  But, that person may not have any clue that the advice he or she received when accepting the plea was faulty until ICE takes him or her into detention and starts removal proceedings.  That person would then have no ability in Virginia to challenge the conviction based on the Sixth Amendment violation.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Subtle Differences Between Inadmissibility and Deportability Can Have Major Consequences

U.S. immigration law provides a number of bases to either prevent someone from entering the United States, or to deport someone out of the country. These bases are called the grounds of inadmissibility and deportability.

Inadmissibility refers to the rules that apply to a person attempting to enter the United States, or to a person currently in the United States after entering illegally. Deportability refers to the rules that apply to a person that is currently in the United States after being lawfully admitted into the country.

Many of the grounds of inadmissibility are similar to the grounds of deportability. However, they are not exactly the same – some of the most important distinctions are based on how the rules consider a person’s criminal behavior. Certain crimes, such as crimes involving moral turpitude, can render a person inadmissible and deportable. The term, “crimes involving moral turpitude,” has been defined as conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Such crimes include theft, fraud, arson and blackmail.

Other crimes, known as aggravated felonies, can also render a person deportable. The crimes that constitute aggravated felonies are defined in the law, and include such crimes as murder, rape and fraud involving $1,000 or more. The first major distinction is that an aggravated felony may not render a person inadmissible. However, many aggravated felonies also happen to fall within the definition of a crime involving moral turpitude, and may render a person inadmissible for that reason.

Another distinction between the rules of inadmissibility and deportability is whether a person must have been convicted of a crime in order for the rules to apply. Generally speaking, for a person to be deportable for a crime involving moral turpitude or an aggravated felony, that person must have been convicted of the crime in question. However, even if a person has never been convicted of a crime, if that person has committed an act which would amount to a crime involving moral turpitude, that person could be rendered inadmissible to the United States.

Whether a crime that falls within the definition of a crime involving moral turpitude is so minor that it may be ignored is another big difference between the rules of inadmissibility and deportability. For example, if a person has committed one act that would be considered a crime that would not be punishable in excess of one year, and that person has been sentenced to six months or less, this is considered a “petty offense,” and will not render a person inadmissible.

However, when a person is present in the United States legally, and that person has convicted of a single crime involving moral turpitude within five years of being admitted to the United States, in order for that conviction to be ignored for deportation purposes, the crime must have a maximum punishment of less than one year in jail.

Generally, the rules governing the admissibility of a person into the United States are more stringent than those governing the deportation of someone legally in the United States. However, the exceptions relating to crimes of moral turpitude can result in confusing outcomes. For example, in Virginia, Class 1 misdemeanors are punishable by up to one year in jail. Under the rules governing admissibility, a person admitting to a criminal act that equates to a Class 1 misdemeanor may qualify for the petty offense exception if the sentencing guideline provides for sentences less than one year.

However, a person convicted of the same Class 1 misdemeanor will be deportable, regardless of the actual sentence, so long as the crime occurred within five years of admission into the United States. In addition, a conviction record for crimes of moral turpitude can have a major impact on whether a person can travel outside of the United States.

For example, if a permanent resident is convicted of a crime involving moral turpitude punishable by more than a year in jail, but the act was committed more than five years after being admitted to the United States, the permanent resident is not deportable. However, if that same person takes a trip overseas and attempts to re-enter the United States, that person will be deemed inadmissible. Further, the law provides that when a person who is in removal proceedings has committed a crime involving moral turpitude, that person is subject to mandatory detention during the pendency of the removal proceedings.

Thus, the same crime, which may have no immigration consequences for a permanent resident who does not travel overseas, can place the same person in detention and subject that person to removal proceedings if the permanent resident leaves the United States and attempts to come back.

Because of the subtle differences between the grounds of inadmissibility and the grounds of deportability, certain acts can result in vastly different outcomes. A permanent resident with a criminal record, or facing a criminal conviction, would be wise to seek advice from an attorney familiar with immigration law to learn of the possible immigration consequences that could result from a conviction.