Crimes punishment how do misdemeanors affect immigration status
This presentation is the property of its rightful owner.
Sponsored Links
1 / 29

Crimes & Punishment: How do Misdemeanors Affect Immigration Status? PowerPoint PPT Presentation


  • 96 Views
  • Uploaded on
  • Presentation posted in: General

Crimes & Punishment: How do Misdemeanors Affect Immigration Status?. Fennemore Craig, P.C. Presented by:. 1. Fennemore Craig, P.C. 2. Source: The Campus Safety and Security Data Analysis Cutting Tool http://www.ope.ed.gov. Fennemore Craig, P.C. Deportable or Inadmissible?

Download Presentation

Crimes & Punishment: How do Misdemeanors Affect Immigration Status?

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Crimes punishment how do misdemeanors affect immigration status

Crimes & Punishment:How do Misdemeanors Affect Immigration Status?

Fennemore Craig, P.C.

Presented by:

1


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

2

Source: The Campus Safety and Security Data Analysis Cutting Tool

http://www.ope.ed.gov


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Deportable or Inadmissible?

  • Deportable: student has been legally admitted to U.S. after having been inspected at an official port of entry but has violated conditions of admission.

  • Inadmissible: student who is seeking to be admitted to the U.S. but is ineligible because of criminal convictions, medical reasons, unauthorized employment or status violations.

    • Applies after travel abroad, when applying for a new visa abroad, and when applying for a green card.

3


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Common Grounds of Deportability

for International Students

CIMT committed within 5 years of date of admission for which a sentence of 1 year or longer may be imposed

Two CIMTs not arising out of a single scheme

Aggravated Felony

Conviction relating to controlled substance (except for single offense of simple possession of 30 grams or less of marijuana)

Conviction relating to firearms

Domestic violence; stalking; or child abuse, neglect or abandonment

False claim to citizenship*

Unauthorized employment

Overstay of F-1 visa

*Based on conduct - does not require a formal conviction.

4


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Common Grounds of Inadmissibility

For International Students

Convicted of, or formally admits having committed, a CIMT (except for single offense with potential sentence of 365 days or less, and actual sentence of 180 days or less)*

Violation of any law relating to a controlled substance*

Two or more convictions with aggregate sentence of 5 years

Reason to believe drug trafficker or assisting drug trafficker*

False Claim to U.S. citizenship*

Unauthorized employment**

Overstay of F-1 visa**

*Based on conduct - does not require a formal conviction.

**If the individual does not leave the U.S. after violation, may still be admissible if married to USC.

5


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Deportability: Crimes Involving Moral Turpitude

CIMT committed within 5 years of date of admission for which a sentence of 1 year or longer may be imposed*

CIMT: “inherently base, vile or depraved,” “reprehensible,” or conduct that violates norms and shocks the public conscience.

*Note that there is a Petty Offense Exception for Inadmissibility (single CIMT where maximum potential sentence is 365 days or less and actual sentence is 180 days or less)

6


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Deportability: Crimes Involving Moral Turpitude

Includes:

A minimum of intentional or reckless conduct

Offenses with an element of fraud

DUI with actual knowledge that license was suspended

Theft with intent to permanently deprive

Most aggravated assaults (deadly weapon, intent to cause great bodily injury)

Sex offense with element of assault, abuse or lewdness

Does not include:

A single CIMT with a maximum potential sentence of less than one year

A single CIMT committed over 5 years after admission

A crime requiring only negligence (as opposed to intent or recklessness)

Simple DUIs

Theft with intent to temporarily deprive (joy ride)

Simple assault/battery

DV assault/battery committed with offensive touching

7


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: CIMT

David is an athlete who lives in an apartment on campus. Some teammates who are minors came to his apartment with alcohol and started drinking. Campus security came and then the police were called. He received a citation for allowing minors to drink on private property.

Potential grounds for deportability:

CIMT: no

Controlled substance: no

Potential grounds for inadmissibility:

same

Result: no immigration consequences.

8


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: CIMT

Stephen was away from campus at a club, became drunk, and while alone relieved himself in the shadow of a building. Police cited him for urinating in public. He went to court, pled guilty and paid fine.

Potential grounds for deportability:

CIMT: no

Controlled substance: no

Potential grounds for inadmissibility:

same

Result: no immigration consequences..

9


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: CIMT

Jennifer celebrated after taking her last final and had a few drinks at a bar close to campus. She left the bar and started to drive home when she was arrested for a simple DUI.

Potential grounds for deportability:

CIMT: not unless there is an aggravating factor, such as driving on a suspended license. A DUI is not a CIMT.

Controlled Substance: if she was under the influence of drugs, as opposed to alcohol, then maybe

Potential grounds for inadmissibility:

Same

Result: probably no immediate immigration consequences, but note that while this will not make her deportable nor inadmissible, DHS has broad discretion to deny entry on a visa for any reason, and this may be a problem when returning from travel abroad.

10


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: CIMT

Vladmir wrote a bad check for $150. He was charged with a misdemeanor Attempted Fraudulent Use of Check which carries a potential one year sentence, but he ended up receiving probation.

Potential grounds for deportability:

CIMT: likely, as it contains element of fraud and has a potential sentence of one year

Aggravated felony (fraud): no, because it did not involve a loss of $10,000 or more

Aggravated felony (forgery): no, because he received probation and won’t serve actual sentence of one year

Potential grounds for inadmissibility:

CIMT: yes, but probably meets petty offense exception

Result: probably deportable.

11


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground of Deportability: Two CIMTS

2 CIMTs not arising out of a single scheme (can be any time after admission)

Crimes committed on the same day and alleged in the same criminal charging document will generally be considered part of a single scheme.

12


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground of Deportability: Aggravated Felony

Has the most serious immigration consequences – makes student ineligible for almost all forms of relief, strips the immigration judge of discretion, and triggers a lifetime bar to future immigration status.

Most common Aggravated Felonies:

Murder, rape, sexual abuse of a minor

Trafficking in a controlled substance

Certain firearm/explosives offenses

Crime of violence with actual sentence of one year or more

Theft, burglary, receiving stolen property with actual sentence of one year or more

Fraud, money laundering with loss of $10,000

Forgery, counterfeiting with actual sentence of one year or more

Obstruction of justice with actual sentence of one year or more

Running a prostitution business

Alien smuggling

Attempt or conspiracy to commit any of the above

13


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground of Deportability: Aggravated Felony

Crime of Violence:

  • any offense with elementof use, attempted, or threatened use of physical force against person or property of another

    • Ex: battery, assault, vandalize property

      or

  • any other offense that is a felony that by its nature involves substantial risk that physical force against the person or property of another may be used in the course of committing the offense

    • Ex: felony burglary of a dwelling

      Crime of Violence Examples:

  • Arson in First Degree

  • Assault of Public Safety Personnel

  • Assault with Deadly Weapon

  • Carjacking

  • Kidnapping

  • Manslaughter (First Degree)

14


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Aggravated Felony

Thomas stole computers, Ipods, and other electronic equipment while on campus during Christmas break. He later “test drove” a car from a dealership and did not return. He was arrested for theft and was detained at an ICE facility.

Potential grounds for deportability:

CIMT: yes, if theft with intent to permanently deprive

2 CIMTs not arising out of a single scheme: possibly the same scheme, but if not, there are 2 CIMTs

Aggravated Felony (theft): theft with intent to permanently deprive – but may be able to argue intent to return the car (joy ride). Also need actual sentence of 1 yr. or more.

Potential grounds for inadmissibility:

CIMT (petty offense?)

Two convictions with aggregate sentence of 5 years: depends on actual charges and jurisdiction

Result: likely deportable and inadmissible.

15


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Aggravated Felony

Pierre went off campus to a party and became intoxicated, returned to campus and allegedly choked a female student. He was arrested for physical assault.

Potential grounds for deportability:

CIMT: probably not unless aggravated assault

Crime of Violence w/ sentence of one year or more: would probably need a deadly weapon

Potential grounds for inadmissibility:

CIMT: probably not, but if it is may be eligible for petty offense exception

Result: probably no immigration consequences, but depends on conviction.

16


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Aggravated Felony

Robert was accused of rape by a female student. He was required to leave campus housing. A detective interviewed him, but he was not arrested pending investigation.

Potential grounds for Deportability:

CIMT: yes if convicted

Aggravated felony rape: yes if convicted

Potential grounds for inadmissibility:

CIMT: yes if convicted

Result: If convicted of rape, will be both deportable and inadmissible.

17


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Aggravated Felony

Paola got a job on campus in the bookstore, and has been accused of stealing $1,000 in merchandise since she started working. She is charged with theft.

Potential grounds for Deportability:

CIMT: yes if intent to permanently deprive

Aggravated felony theft: yes if convicted

Potential grounds for inadmissibility:

CIMT: yes if convicted

Result: If convicted of rape, will be both deportable and inadmissible.

18


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground of Deportability: Controlled Substance

Defined as a conviction for “a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana)

Includes:

Possession of paraphernalia

Simple possession of any drug (except for first time possession of 30 grams or less of marijuana)

Sale, transport for sale, possession for sale, or other drug trafficking offense (also an aggravated felony)

Possession of look-alike substance

Any other offense “relating to” a controlled substance

Does not include:

A conviction for a single offense of 30 grams or less of marijuana for one’s own use (but this can affect travel – up to officer’s discretion)

An offense involving a drug not listed on the federal schedule of controlled substances

19


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Controlled Substance

Sandeep is overwhelmed by the stresses of college life and decides to unwind one evening by smoking a small amount of marijuana. He is caught by an off-duty police officer and offered to a plea to misdemeanor simple possession of marijuana.

Grounds for Deportability:

CIMT: simple drug possession is not a CIMT

Controlled substance: depends on amount - there is an exception for a single offense of 30 grams or less of marijuana

Potential grounds for inadmissibility:

CIMT (petty offense exception?)

Controlled substance: may be waiver available for possession of 30 grams or less of marijuana

Result: Probably not deportable if 30g or less, however, marijuana exception does not exist in the controlled substance ground for inadmissibility. A waiver is available, but it requires a showing of extreme to a U.S. citizen of LPR family member, and Sandeep has no family here. If he leaves the U.S., he will not be admitted again. Needs to try to plead to a non-drug offense.

20


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground of Deportability: Conviction Relating to Firearms

Defined as the conviction of “any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part or accessory which is a firearm or destructive device.”

Many statues refer to a “deadly weapon” or “dangerous instrument”.

Good rule of thumb is:

Gun = deportable

Knife = not deportable

21


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Conviction Relating to Firearms

Benjamin attended a gun show and purchased a firearm from an individual’s car and placed it in his trunk. As he drove away, police arrested him for possessing a firearm with a non-immigrant visa.

Potential grounds for deportability:

Conviction relating to firearms: yes

Potential grounds for inadmissibility:

none

Result: deportable.

22


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground of Deportability: Domestic Violence

Must meet definition of “crime of violence,” which requires the “use, attempted use, or threatened use of physical force” or a felony that has a substantial risk that physical force will be used.

Includes:

An offense under state DV statute that has an element of intentional force

A DV offense with a reckless mens rea (in some circuits)

Does not include:

A DV offense with a reckless mens rea (in some circuits)

A negligent mens rea

Offense committed against property

Battery/assault committed with offensive touching

False imprisonment committed by deceit

23


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Domestic Violence

Jim, newly married, gets into an argument with his wife after he learns he was not accepted into law school. At some point he grabs her wrist causing her to lose her balance and fall. He is convicted of a misdemeanor, domestic violence charge of assault and disorderly conduct. No jail time, but there would be probation, possibly of one year.

Potential grounds for deportability:

CIMT: probably not a CIMT

Crime of Violence: probably not, plus there must be an actual sentence of one year or more

Domestic Violence: probably not, must meet definition of “crime of violence”

Potential grounds for inadmissibility:

CIMT: probably not, but he appears eligible for petty offense exception

Result: Probably no immigration consequences

24


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground of Deportability: False Claim to U.S. Citizenship

For any purpose or benefit

A conviction is not required

25


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: False Claim to U.S. Citizenship

Erica is walking on campus when she passes a voter registration booth. The booth personnel ask he if she’s registered to vote. She says she is not because she is not a U.S. citizen. That’s ok, they say, she can just check the U.S. citizen box and it will be fine – people do it all the time. Besides, if she just votes in local city elections it’s no big deal. She decides to register.

Potential grounds for deportability:

False claim to U.S. citizenship: yes, particularly if she knowingly checked the U.S. citizen box and if the form indicated that it was under penalty of perjury.

Unlawful voting

Potential grounds for inadmissibility:

Same

Result: deportable and inadmissible.

26


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Ground for Deportability:

Overstays & Unauthorized Employment

Student remains in U.S. beyond authorized period

Student works without a work permit or work visa

27


Crimes punishment how do misdemeanors affect immigration status

Fennemore Craig, P.C.

Example: Overstays & Unauthorized Employment

Mounika was discovered working at a kiosk in the mall during her first semester of her freshman year.

Potential grounds for deportability:

Unauthorized employment: as a freshman, Mounika would not have OPT, and therefore off-campus employment is prohibited.

Potential grounds for inadmissibility:

Same

Result: deportable and inadmissible (unless married to USC).

28


Crimes punishment how do misdemeanors affect immigration status

QUESTIONS

Fennemore Craig, P.C.

29


  • Login