Is ICE Ginning up the Numbers of "Criminal" Deportations?

The Obama Administration has stated publicly that it's deportation policy is to concentrate enforcement resources on high priority cases, such as criminal aliens.  An article in USA Today suggests that the Administration may have been ginning up the numbers to make it appear as though deportation of criminals has been on the rise.

At issue is what the definition of a "criminal alien" is.  The easy cases are those convicted of crimes such as assault and battery and larceny.  The article suggests, however, that the Administration has included in its definition of a "criminal alien" those who have convictions for minor traffic offenses, such as driving without a license.

To be clear, in Virginia, driving without a license is a misdemeanor, and can carry a jail sentence of no more than one year.  However, undocumented aliens cannot obtain a driver's license in Virginia.  This raises the question of whether driving without a license is on par with other crimes, such as larceny.

In the past, ICE has estimated that up to a quarter of its criminal deportations included aliens who had only traffic violations.  ICE has not released information of how many of the criminal deportations of the most current year were due to minor traffic convictions.

While the article hints that ICE has been trolling DMV records, and deporting aliens who have nothing more than a traffic violation, the article also points out that there have been instances where ICE has refused to initiate deportation proceedings against aliens who were cited for driving without a license.  The article mentions as an example an incident near Asheville, North Carolina where 15 individuals were arrested at a police checkpoint mostly for minor traffic violations, immigration officials ordered many of them released.

The article implies that there are quotas within the agency to maintain high numbers of criminal deportations, and that in orderto meet these goals there is pressure to initiate removal proceedings against those convicted of minor traffic offense.

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

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

Driving Without a License: More Likely to Get Jail Time, But the Feds Aren't Necessarily Biting Anymore

Driving without a license is a misdemeanor in Virginia.  It can carry up to one year in jail.  There had been a pattern, particularly in Prince William County.  A Hispanic driver would be pulled over for a minor traffic offense.  If the driver was undocumented, he couldn't get a license, so he'd be charged with driving without a license.  The plan would be to get the undocumented alien in jail, so he could be reported to ICE, and ICE could put a detainer on him to start removal proceedings.  Thus, the job of lawyers like me was to try our hardest to keep people charged with driving without a license out of jail.

Well, now there is good news and bad news on that front.  First, the bad news.  As short as a few months ago, I was able to negotiate a higher fine in lieu of jail time for people charged with their second or more driving without a license.  This was true even in Prince William County.

At least in Prince William County, that is no longer true.  When a person has a prior driving without a license charge, Prince William County Commonwealth Attorneys are now insisting on at least one day in jail.  They're not willing to consider a higher fine, even the maximum of $2,500, in lieu of jail time.

But here's the good news.  About two years ago, I had a client whose only crime on his record was a single driving without a license charge.  For whatever reason, the police officer actually took this fellow into custody pending trial.  In that situation, there was little I could do.  Since he was taken into jail, he was reported to ICE and ICE put a detainer on him to start removal proceedings.  And this was in Fairfax County.

Well, it seems like that may be a thing of the past.  I had a client who was forced to spend a night in jail after a second driving without a license.  I totally expected an ICE detainer, and the start of removal proceedings.  I was pleasantly surprised when I called the Prince William County Jail the next morning, and was told that my client was released as scheduled.  It seems that ICE may not be starting removal proceedings against undocumented aliens where the only convictions are for driving without a license.

This turn of events would seem to flow from the evolution of the Obama Administration's deportation policy.  Back in June of 2011, ICE announced that it would concentrate its enforcement resources on high priority cases, such as violent criminals and gangs.  Then, this year, the Administration announced that it would grant certain undocumented aliens deferred action, effectively allowing them to remain in the United States, and give them work authorization.  In October of 2012, in a move that angered Prince William County officials, ICE announced that it was going to discontinue a program that involved local police and federal cooperation when local police picked up a suspected immigration violator.

It seems that the Federal Government is putting its money where the President's mouth is.  Run-ins with the law for minor offenses no longer seems like a reason for ICE to start removal proceedings.  A person convicted for a second charge of driving without a license may have to face the inconvenience of a night in jail in Prince William County.  But, at least for now, it appears that if all you have are convictions for driving without a license, ICE is not interested in pushing for deportation.

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

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

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

Video Blog: Criminal Issues and Immigration Law

Even a Deferred Adjudication is a Conviction for Immigration Purposes

Deferred adjudication programs can offer a break to first time criminal offenders.  The idea is that a formal adjudication of guilt is withheld.  If the defendant shows a time of good behavior, often one year, then charges can be dismissed or reduced.

 But, what appears to be a good deal for criminal purposes could land a non-citizen defendant into hot water for immigration purposes.  This is because of the broad definition of "conviction" under U.S. immigration law.  A conviction includes not only a formal adjudication of guilt, but also any admission of guilt or of facts sufficient to find guilt, so long as some form of punishment is given.

In most deferred adjudication programs, the defendant has to admit guilt, or the judge has to find that the prosecutor has alleged sufficient facts to find guilt.  The result is usually some form of a suspended sentence, or some form of probation.  But, this is enough under immigration law to be considered a conviction.

This means that upon acceptance of a deferred adjudication program, immigration authorities can commence removal proceedings.

The defendant in this article from the Oregonian found that out the hard way.  According to the Oregonian, he worked as a cashier and would give his family unauthorized discounts or ring up false returns.  The result was a felony conviction which could be reduced to a misdemeanor.  However, because there is a felony conviction, which was likely considered an aggravated felony for involving a crime of theft for which a sentence of one year or more was imposed, it triggered ICE to commence deportation proceedings.

Given the broad definition of "conviction" under U.S. immigration law, it is advisable that a non-citizen defendant facing criminal proceeding receive accurate immigration advice.  In that way, an informed decision on whether to accept a plea bargain, accept deferred adjudication or push for a trial, can be made.

By:  William J. Kovatch, Jr.
(703) 837-8332
info@kovatchimmigrationlaw.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

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.