State Courts Limiting the Effect of Padilla v. Kentucky

A little over two years ago, the U.S. Supreme Court handed down its decision in the case of Padilla v. Kentucky, where it held that the failure of criminal defense counsel to advice a non-citizen defendant on the immigration consequences of of accepting a plea bargain amounts to a violation of the Sixth Amendment.  To many at the time, Padilla appeared to be a landmark decision, offering help to permanent residents and other non-citizen convicts seeking to re-open convictions which resulted in surprise immigration consequences.  A number of state courts, however, have attempted to close the door on the ability of non-citizen defendants to use Padilla to re-open old state convictions.  States such as Virginia now prohibit the use of certain extraordinary writs to seek post-conviction relief.  States such as Florida hold that Padilla is not retroactive, and thus cannot be used to attack convictions occurring before the date of the Supreme Court's decision in Padilla.

In this article, I discuss the efforts of state courts to curtail the reach of Padilla.

The Virginia opinion of Morris v. Commonwealth can be found here.

The Florida opinion of Hernandez v. State can be found here.

The U.S. Supreme Court has taken up the issue of whether Padilla should be applied retroactively, as discussed in this article.

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

Video Blog: Criminal Issues and Immigration Law

Deferred Action for Childhood Arrivals (DREAMers): Potential Applicants with Criminal Records Must Give Careful Consideration

Those who wish to apply for deferred action for childhood arrivals who have criminal records must consider the matter carefully before applying.  On one hand, USCIS is saying that some criminal convictions will not disqualify a person from receiving deferred action.  However, certain criminal convictions will not only make a person ineligible for deferred action for childhood arrivals, they may cause an applicant to be referred to U.S. Immigration and Customs Enforcement for removal proceedings.

USCIS has the authority to issue a Notice to Appear, which begins a removal proceeding.  USCIS can also refer a case to ICE for a decision on whether to begin removal proceedings.  At times, when an alien files an application or petition, such as an application for naturalization, USCIS will learn of the applicant's criminal record.  In such cases, the alien risks having his or her case referred to ICE for a decision on whether to begin removal proceedings.

USCIS issued guidance in November of 2011 on when it would refer a case to ICE for possible removal proceedings.  The guidance can be found at this link.  In general, if a crime qualifies as an "aggravated felony" under U.S. immigration law, concerns street gangs, or involves violating another person's human rights, then USCIS will refer the matter to ICE.

Turning back to eligibility for deferred action, USCIS guidelines say that an applicant must not have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors.

USCIS provides further explanation on its Frequently Asked Questions page.  First, USCIS states that expunged convictions and juvenile convictions will not automatically disqualify a person for consideration for deferred action.  Rather, an applicant with such convictions will have his or her case assessed on a case-by-case basis.  The point here is that if there is a conviction for a felony or a significant misdemeanor which was either a juvenile conviction, or was later expunged, the applicant should be prepared to address the particular facts and circumstance on his or her case to show that USCIS should still exercise its discretion.  This can include the facts and circumstances surrounding the conviction itself, as well as any hardships that another person would face if deferred action were not granted.  An example could be a U.S. citizen child of the applicant, who has a significant health concern.

USCIS warns further that if the applicant was juvenile at the time of conviction, but was tried as an adult, then the conviction will be treated as an adult conviction.

A felony is defined as a crime punishable by imprisonment for a term exceeding one year.  Notice that USCIS uses the word "punishable" and not "punished."  This would tend to show that even if a person was actually punished for less than a year, if the possible sentence for the crime exceeded one year, then USCIS would consider the offense a felony.

As for significant misdemeanors, some categories are clear.  Domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking and driving under the influence are all considered significant misdemeanors, not matter what sentence was actually imposed.

For other misdemeanors, they will be considered significant if they were punished by imprisonment for more than 90 days.  When considering the term of imprisonment in this instance, USCIS states that it will not consider any time that was suspended.  This is a departure from other areas of immigration law, where a term of imprisonment includes the entire sentence, even if part of the sentence was suspended.

USCIS states that traffic infractions will not be considered misdemeanors.  However, it warns that if there is a pattern of such infractions an alien's entire offense record will be examined to determine whether the exercise of discretion is warranted.  In making this assertion, USCIS makes reference to driving under the influence.  This appears to give a clue that if there is a history of traffic infractions, which may not themselves rise to the level of driving under the influence, but which shows that alcohol was involved, USCIS may consider such cases as evidence of alcoholism, and thus deny deferred action on that basis.

Whether or not a misdemeanor is considered significant, if an applicant has been convicted of three or more, then he or she will not be considered for deferred action.  On this point, USCIS indicates that if there are multiple misdemeanor convictions occurring on the same date and arising out of the same act, omission, or scheme of misconduct, then they may not necessarily be considered more than one conviction.

Finally, some states have criminalized certain immigration-related offenses.  Illegal presence alone, for example, is not a federal crime.  But some states have moved to make it a state crime.  Some states and localities have also attempted to criminalize employing or leasing to a person known to lack a legal immigration status.  USCIS provides that convictions for felonies or misdemeanors of immigration-related crimes will not disqualify a person for deferred action.

A person who wants to apply for deferred action, but who has a criminal conviction should consult with a lawyer, and give careful consideration before making such an application.

By:  William J. Kovatch, Jr.
(703) 837-8832

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.