Immigration Judge Finds Theft of Food and Livestock Does Not Trigger Material Support Bar

 

 

In a case that had been pending almost twenty-five years, Arlington Immigration Judge Paul W. Schmidt found that the theft of food and livestock by the FMLN (Farabundo Marti Nation Liberation Front) from the Respondent’s home did not constitute material support of terrorism.  The ruling paved the way for an El Salvadoran man, who had escaped his country’s civil war, to receive permanent residency in the United States.

The Respondent, who fled El Salvador in 1988 when he found a bomb in front of his house, had been attempting to obtain some form of immigration relief since 1990, when he filed his first asylum application.  His most recent attempt was through an application through the Nicaraguan Adjustment and Central American Relief Act (known as NACARA), which permits, among other things, certain Central Americans who have been present in the United States since the early 1990s to adjust to permanent residency, provided they can show good moral character and extreme hardship if returned to their home country.

Eligibility for immigration relief, however, is often not enough.  Rather, those who meet the eligibility requirements must still show that they are admissible under U.S. Immigration law.  One ground of inadmissibility applies to those who have provided material support to a terrorist organization.  This is called the material support bar.

U.S. courts have upheld a broad interpretation of the material support bar made by the Board of Immigration Appeals.  The material support bar can be triggered, for example, merely by providing food and directions to a group that the U.S. Government labels as a terrorist organization.  The text of the statute itself provides for no exception to the material support bar even if the support was given under duress.  Thus, a credible threat of immediate death may not excuse someone who has given food to a group labeled as terrorist.

In the Respondent’s case, he testified that twice the FMLN came to his home and took food and livestock.  The first time, they took about twenty tortillas.  The second time, they took one of his animals.  The Respondent did not stop the FMLN because he feared that he would be killed.  Because the U.S. Government labeled the FMLN a terrorist organization, U.S. Immigration and Customs Enforcement argued that this triggered the material support bar in the Respondent’s case.

In a written opinion, Judge Schmidt ruled that it did not.  Citing an unpublished Board of Immigration Appeals case, the Immigration Judge found that in order to be material the support has to be active.  The fact that the FMLN stole food and livestock from the Respondent, therefore, did not constitute material support.  The Judge granted the Respondent his NACARA application, paving the way for him and his minor daughter to become permanent residents.

By: William J. Kovatch, Jr.
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Drunk Drivers Beware!

Currently, a conviction for driving under the influence of alcohol (DUI), or driving while intoxicated (DWI), is not an automatic ground for inadmissibility or deportation.  But, all of that could change if the Border Security, Economic Opportunity, and Immigration Modernization Act becomes law.

Section 3702 of the Act creates a new ground of inadmissibility and a new ground of deportation: Habitual Drunk Drivers.  A Habitual Drunk Driver is defined as a person who has three or more DUI or DWI convictions.

One key difference between the new ground of inadmissibility and the new ground of deportability is that in order for an alien to be deportable, at least one of the convictions must occur after the passage of the Act (click here for a discussion on the difference between inadmissibility anddeportability).  Because this provision is not in the section of the Act defining inadmissibility, that could lead to the conclusion that Congress intends for this provision to be applied retroactively for those who are present in the country illegally, or who apply for admission in the future.  That is, even though DUI and DWI convictions do not currently render an alien inadmissible, if the Act passes, then those aliens who are present in the country illegally and who currently have three or more DUI or DWI convictions could find themselves in immigration trouble.

By:  William J. Kovatch, Jr.

(703) 837-8832

info@kovatchimigrationlaw.com

Criminal Issues Require Precise Immigration Advice

If you are not a U.S. citizen, and you find yourself charged with a crime, you need precise immigration advice.  Immigration advice can be complicated, as there are seemingly inconsistencies within the immigration law itself, as well as inconsistencies between U.S. immigration law and state criminal law. 

How a criminal conviction affects eligibility for immigration benefits depends on the benefits sought.  Asylum, Temporary Protected Status (TPS), and Deferred Action for Childhood Arrivals all have their own different rules.  Plus all of these rules differ from whether the crime makes an alien inadmissible or deportable.

I go into further detail in this article.

For precise immigration advice on a criminal issue, consult with a knowledgeable immigration lawyer.

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.