Unit 9:Other Common Offenses 12 Tips on Firearm, Motor Vehicle, Prostitution, Fraud, & Ancillary Offenses
1. Firearms Deportability A conviction relating to a gun or bomb is a basis for deportability. 8 USC 1227(a)(2)(C). • Tip: Plead to offense that penalizes both guns and non-guns, with vague record of conviction. • No firearms ground of inadmissibility per se, so person still could immigrate through family. Matter of Rainford, Int.Dec. 3191 (BIA 1992).
Firearms Deportability, cont. • But violent offenses usually are CMT’s, so do that analysis as well.
2. AF Gun/Bomb Offenses State convictions that are AF’s include: (a) trafficking in firearms or bombs, or (b) state analogues to federal offenses; most commonly, being a felon, addict, or undocumented immigrant in possession of a firearm or bomb. • No particular sentence is required. • Remember: crime of violence with 1-yr sentence imposed is AF independently.
3. Fraud Offenses A crime of fraud or deceit where loss to the victim exceeds $10,000 is an AF. 8 USC 1101(a)(43)(M)(i). Complex analysis, look to circuit and state law. • Tip: Avoid “fraud” conviction, e.g. plead to generic theft with no fraud element. • Tip: If theft offense, also avoid 1-year sentence imposed to avoid AF.
Fraud Offenses, cont. • Tip: Avoid finding of loss >$10k. Plead to 1 count fraud where loss to the victim <$10k, then deal w/ $10k restitution. • Pay down restitution below $10k before sentence? • Does plea trump the restitution order? • Chang v. INS, 307 F.3d 1185 (9th Cir. 2002) (not AF because plea agreement specified loss from conviction count <$10k).
Fraud Offenses, cont. • But see US v. Doe 374 F.3d 851 (9th Cir. July 6, 2004)(state law holds that restitution = loss to victim), so plea agreement may not work. • Otherwise hide restitution? Separate civil judgment?
4. Hazardous Waste • Tip: In lab and precursor cases, try unauthorized transportation or disposal of hazardous waste. Where statute has no element of controlled substances, this is not AF, CSO, or CMT (since it is merely a regulatory offense).
5. Prostitution • “Engaging in” prostitution, even absent conviction, is basis for inadmissibility (not for customer). • Prostitution is CMT for prostitute, possibly for customer as well. • Conviction for managing prostitution business can be AF (8 USC 1101(a)(43) (K)(i)) or basis for deportability.
6. Driving Under the Influence • Aggravated Felony: • DUI with negligence or less is not a COV, so 1-yr sentence imposed does not create AF. Leocal, 125 S.Ct. 377 (2004). • But see pending legislation that would reverse this. To protect client, obtain sentence of 364 days or less. • CMT’s: Simple DUI is not CMT. • Even multiple DUI convictions not CMT
7. Driving on Suspended License • Driving on suspended license has no immigration effect. • BIA held DUI on suspended license is CMT. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). • Ninth Circuit held that where statute at issue prohibits not only driving but sitting in unmoving car, it is not CMT. Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. 2003).
Failure to Appear Conviction = Danger • AF if failed to appear • Pursuant to court order for disposition of charge where max possible sentence = 2 years or more. INA 101(a)(43)(T); or • To serve time for offense where max possible sentence = 5 years or more. INA 101(a)(43)(Q). • Tip: Take substantive conviction, probation violation, etc. to avoid FTA.
Ancillary Offenses and Potential Sentence • If ancillary offense carries less potential sentence than principal offense, plea to ancillary may avoid CMT consequences. • e.g. deportable for one CMT conviction committed within 5 years of admission if it carried potential sentence of 1 year or more. • e.g. not inadmissible for one CMT conviction if sentence was 6 months or less & potential sentence was 1 year or less (petty offense exception).
Ancillary Offenses: Accessory after the Fact, Misprision • Accessory after fact and misprision are valuable pleas to avoid a drug or AF conviction, because they do not “take on the character” of the underlying offense. • BIA holds that accessory after the fact is an AF as obstruction of justice, if a sentence of one year or more is imposed. Batista-Hernandez, 21 I & N Dec. 955 (BIA 1997). • BIA holds same is not true for misprision.
11. Ancillary Offenses: Solicitation • Ninth Circuit held “generic” solicitation, where offense involved drugs, is not an AF or deportable drug conviction. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th 1997); Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999). • Ninth Circuit held that “specific” solicitation (e.g., offering to sell drugs) is not an AF. Advocates argue also not deportable conviction. US v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)(en banc).
11. Ancillary Offenses: Solicitation (2) • But see Peters v. Ashcroft, 383 F.3d 302 (5th Cir. 2004)(soliciting transportation of drugs for sale is CSO); In re Beltran, 20 I&N Dec. 521 (BIA 1992).
Ancillary Offenses: Aiding and Abetting • Ninth Circuit held where aid/abet statute is broadly defined to include “encouraging,” it is not an AF. US v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002). Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005). • Other circuits have not ruled on this. If no better plea possible, this at least provides possible argument in immigration court.