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Assessing Criminal Violations and Immigration Violations Before Filing for Naturalization.

Assessing Criminal Violations and Immigration Violations Before Filing for Naturalization. DePaul Asylum & Immigration Clinic December 1, 2006. Criminal Violations – What to look for & what to ask for.

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Assessing Criminal Violations and Immigration Violations Before Filing for Naturalization.

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  1. Assessing Criminal Violations and Immigration Violations Before Filing for Naturalization. DePaul Asylum & Immigration Clinic December 1, 2006

  2. Criminal Violations – What to look for & what to ask for. • Ask client if ever been arrested, been to court, been stopped by the police, paid a fine, etc. Be broad in your questioning. • If client is not sure about prior arrests and or convictions, insist that an FBI Background check and State Police Background Check be conducted. Better safe than sorry.

  3. What is a criminal conviction? • Juvenile Court – no conviction; • Is the case on direct appeal? Matter of Ozkok, Int. Dec. 3044, n.1 (BIA 1988); 8 CFR 242.2(b); but seeMontenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004). • Diversion, First Offender, Deferred Adjudication, Drug Camp, Pre-Trial Diversion. • In assessing GMC, the DHS may use expunged convictions. U.S. v. Hovsepian, 359 F.3d 1144, 1158-59 (9th Cir. 2004) (en banc).

  4. But wait… • Under the current regulations a person must be denied citizenship not only if he is convicted but if he admits facts that constitute certain crimes within the 5 yr period. 8 C.F.R. 316.10(b)(iv).

  5. GMC for the Requisite 5 Years • Must be a person of GMC for the requisite 5 years (or in the case of a spouse of a USC 3 years, or person in the military 1 yr under 1440(b) prior to filing and up to the time of admission). • Statutory ineligibility for GMC is defined at INA 101(f).

  6. Cannot establish GMC if within 5 yrs: • Prostitution/commercialized vice – INA 212(a)(2)(D); • Convicted of 2 or more gambling offenses; smuggling of persons • Given false testimony for the purpose of obtaining benefits under the INA, doesn’t matter if it was material; • Confined as a result of a conviction for an aggregate of 180 days; • Conviction for any “crime of moral turpitude” or drug offense (except “petty offense exception” less than 30 grams of marijuana); • At any time convicted of an aggravated felony!

  7. Aggravated Felonies • A non-citizen convicted of an aggravated felony after admission is deportable and may not be eligible for any type of relief from removal. INA 237(a)(2)(A)(iii). This term is an immigration term of art, coined by Congress, defined in the Act and interpreted by Board & Circuit caselaw. Most individuals with aggravated felony convictions are not eligible for relief from removal

  8. Aggravated Felonies before 11/29/1990. • An aggravated felony conviction before 11/29/1990 is not a statutory bar. BUT DHS could still place the individual in removal proceedings and then deny the naturalization application because removal proceedings were pending.

  9. Murder, rape; Sexual abuse of a minor (misd. too) Drug trafficking; Trafficking in firearms, felon poss. firearm; Money laundering, fraud, tax evasion loss exceeds 10,000; Alien smuggling (unless parent/spouse/child): “crimes of violence” as described in 18 USC 16(a) or (b) w/ a yr or more sent; False docs w/ a yr or more sent; Theft/burglary with a yr or more sent; Bribery, perjury w/ a yr or more sent; Attempt or conspiracy to commit any of these offenses. What types of crimes are aggravated felonies?

  10. Crimes of Moral Turpitude (CMT) • No set definition, in general a crime involves CMT if, as defined in the statute, it involves intent to commit fraud or theft; intent to do great bodily harm; lewd intent in some sex offenses, or in some cases recklessness or malice. • Simple assault, simple battery, simple DUI do not involve intent and therefore are not CMT’s.

  11. 3 or 5 yr limitation on inquiry. • The inquiry into a person’s GMC is not limited to the 5 or 3 yr period and the DHS may inquire into time periods beyond the 5 or 3 yr period. • Inquiry beyond the statutory period should be considered only if the conduct during the statutory period does not indicate reform from the earlier period or if the earlier conduct appears relevant to applicant’s present GMC. 8 CFR 316.10(a)(2).

  12. Example of Common Criminal Violation – NOT CMT. Drunk Driving : Where person had one DUI during statutory period, but 5 DUI convictions over the past 10 years, this person could be denied naturalization even though a simple DUI is not a CMT under caselaw. Exception: look for whether was also convicted for driving on a suspended license. There is a BIA case regarding an Arizona statute which states that this is a CMT. Have a better argument under the Illinois driving on a suspended license statute.

  13. Hypothetical #1: • Cristina Hypothetical: LPR since 12/22/99, has a misd. theft conviction within the 5 year period. • Is Cristina deportable? No. Under INA 237(a)(2)(A)(i), not deportable for 1 misd. CMT where a sentence of less than a yr is imposed. (but if more than a yr for misd.–watch out – ex. IN, MINN, KY). • barred from establishing GMC for natz purposes? No. Under INA 212(a)(2)(A)(ii) – petty offense exception – not statutorily barred.

  14. Benne Hypothetical: LPR since 3/27/96, IL misd. disorderly conduct 2003 and IL misd. attempt to obstruct justice 1998. 1. Is he deportable? Probably not. 2.Can he establish GMC? Probably – may want to wait. Again, having the conviction in the statutory period could cause the govt. to look back at the rest of his criminal history. Hypothetical #2:

  15. Hypothetical #4 • Camilo – LPR since 1998, dv conviction, violation of order of protection. • 1. Is he deportable? INA 237(a)(2)(E)(i)and (ii). Doesn’t matter that it is a misdemeanor. • 2. Can he establish GMC? Is technically eligible for natz, outside the 5 years

  16. Hypothetical #5 • Sheila: LPR since 1990, 1 IL misd. retail theft, probation completed. • 1. Is she deportable? • 2. Can she establish GMC?

  17. Hypothetical #6 • Jimmy: LPR in 1997, arrested in 1994 for theft. • Issues: 1. obtain criminal records – was it a felony or a misd.? 2. did he disclose it on his adjustment of status application? 3. If not, he was inadmissible at time of entry under INA 237(a)(1)(A). 3. File FOIA, Fingerprints, obtain criminal docs.

  18. Hypothetical #7 • Jose: became an LPR in 1999, arrested for batter in 1995, record shows “SOL.” • 1. Is he deportable? • 2. Was he inadmissible at time of AOS? • 3. Can he establish GMC?

  19. Unlawful Voting/False Claim to USC • Deportable if you unlawfully voted or made a false claim to USC to claim a benefit under the INA or any federal or state law. • The CCA of 2000 added a narrow exception to the grounds of removal for false claims to US citizenship & unlawful voting and added a parallel clause to INA 101(f) providing that person will not be statutorily barred from GMC even if he voted unlawfully or made a false claim to be a USC if:

  20. Unlawful voting…cont. • (1) each natural or adoptive parent is or was a USC; (2) applicant permanently resided in the US prior to 16; (3) s/he reasonably believed that s/he was a USC. • A natz officer can use his/her discretion to grant a natz application where there was unlawful voting and false claim to USC if:

  21. Unlawful Voting…cont. If the alien was not convicted for illegal voting or false claim to USC on or after 10/30/01, can exercise prosecutorial discretion and grant natz even if does not apply for the CCA exceptions to removal. See Yates Memo, May 7, 2002 and Meissner Memo, November 17, 2000, “Exercising Prosecutorial Discretion.”

  22. Immigration Violations: Removal, Deportation, Exclusion • Removal: Proceedings after 4/1/97. • Deportation vs. Exclusion: prior to 4/1/97, (deportation was for those who have been admitted, exclusion, for those who had not been admitted into the US) • Has your client ever been before an immigration judge? What happened? This is important to find out to determine whether the lawful permanent residence status was obtained through misrepresentation or fraud and whether the client was inadmissible at time of aos. LPR Status could be revoked.

  23. Immigration Violations: Voluntary Departure. • VD by DHS – INA 240B(a), 8 CFR 240.25. DHS may grant VD in lieu of being subject to proceedings. • VD at a removal hearing. There is pre and post hearing VD. Failure to depart makes you ineligible for 10 yrs for any further relief of VD, adjustment, cancellation of removal, registry. Matter of Shaar, 21 I&N Dec. 541 (BIA 1996).

  24. Immigration Violations: Voluntary Return • VD is not available to someone who is stopped at the border, however DHS may allow such a person to withdraw his application for admission pursuant to INA 235(a)(4). • Voluntary Return: ‘catch and release.’

  25. Immigration Violations: Expedited Removal. • Beginning 4/1/97 – a person deemed inadmissible at the border under INA 212(a)(6)(C) (material misrepresentation; INA 212(a)(7), lack of IV or NIV docs), can be expeditiously removed without a hearing before an IJ.

  26. Reinstatement of Removal or Deportation Order! • If person has re-entered US illegally, DHS may reinstate old order and automatically remove person w/o any new application or request to waive the prior deport order. INA 245(a)(5).

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