WHAT You DON'T KNow, CAN HURT You
BUT YOU DON'T NEED TO KNOW IT ALL
This presentation deals primarily with the client who is not a citizen of the United States
and you have been representing in criminal tax matters. They may be permanent residents or
"illegal". For purposes of this discussion, sometimes they are better off being "illegal," or
"undocumented". It's just an example of how the immigration system makes little sense.
You do not need to be a sophisticated immigration lawyer to know that there is a problem
whenever an alien has a criminal conviction. There are several points for the criminal defense
lawyer to keep in mind when representing a non-U.S. citizen client in criminal matters.
I.
Get the immigration lawyer involved early in the case and have that lawyer
participate in the plea negotiations.
One thing immigration lawyers hate is the lawyer (or client) who calls from the
courthouse, saying it's an emergency, that such and such a plea deal has been offered and asking
if it would have immigration ramifications. Besides preventing the immigration lawyer from
being able to earn a fee, the answer is this: it is impossible to tell what the answer should be,
absolutely impossible.
Please refer, for instance, to the article, "Between a Rock and a Hard Place:
The
Immigration Consequences of a Criminal Tax Conviction," by Megan L. Brackney.
She
describes in the article some of the problems with aggravated felonies and the immigration
consequences of certain convictions for federal tax offenses . It's well written and absolutely on
point, if you want to know the immigration law issues. Other types of convictions are crimes
involving moral turpitude that are not categorized as aggravated felonies. However there is no
"one size fits all" categorization.
An alien may be convicted of an aggravated felony and yes, it is true, that most aliens
convicted of aggravated felonies are not eligible for any relief from deportation or removal, as it
is now called. Yet some are eligible for some types of relief, for example, if the alien client has
never had a green card, and is otherwise eligible for one, say based on his marriage to a U.S.
citizen, the fact that he/she is convicted of an aggravated felony would not necessarily stand in
the way of receiving that green card. But, the agfelon who already has a green card may not be
eligible for relief. The law is filled with things like that, truly it makes no sense, but that's
immigration law.
Another example, if a person has been convicted of a crime involving moral turpitude,
the plea negotiations are such that you can arrange a conviction for a crime that does not carry a
maximum penalty in excess of one year, there is only one such crime, and if the sentence to a
term of imprisonment is six months or less, the crime would fall within the "petty offense"
exception and the person would not be excludable for that reason. See 8 U.S.C. §
1182(a)(2)(A)(ii)(II). He/she stays, or comes and goes, without problems.
However, the petty offense exception is confined to a single case. What if the alien had a
shoplifting or hot check charge ten years earlier? Then there would be convictions for two
crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, and
the person would be deportable. See 8 U.S.C. § 1227(a)(2)(A)(ii).
So what does this tell us? It tells us that each client has a unique set of facts and
circumstances will govern the immigration consequences of your client' s current case. The
immigration lawyer must have an hour or two of candid conversation with the client to be able to
evaluate the situation and always be able to re-evaluate as your case unfolds.
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There is no single answer that will fit every situation. You must bring the immigration
lawyer into the case early enough that counsel can evaluate the circumstances in that client's life,
background, and to see if there are other circumstances that may cut off applications for relief, or
create avenues of relief. The anxious call from the courthouse steps doesn't cut it.
II.
The immigration law is counter-intuitive to a criminal defense lawyer.
This is why the immigration lawyer must be at your side throughout the negotiations.
You will forget some of these things.
Under the immigration statute, 8 U.S.c. § 1101(a)(48)(B), any reference to a term of
imprisonment or a sentence with respect to an offense, is deemed to include the period of
incarceration or confinement ordered by a court of law regardless of any suspension of the
imposition or execution of that imprisonment or sentence in whole or in part. What this means
is, that a sentence of one year probated, is a sentence of one year, as far as immigration law is
concerned.
This may be important because some definitions of certain aggravated felonies refer to
the sentence, not all of them do. For example, in 8 U.S.C. § 11Ol(a)(43)(G), an aggravated
felony includes "a theft offense (including receipt of stolen property) or burglary offense for
which the term of imprisonment [is] at least one year". A one year sentence, probated for one
year, is a one year sentence and although the client would never have spent a minute in jail, they
would have been convicted of an aggravated felony under this statute. On the other hand, thirty
days in jail, actually served, is only a thirty day sentence, and the clever use of that in plea
negotiations can mean a great deal for certain people.
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In my experience, when the immigration lawyer mentions pleas like this, it always causes
the prosecutors, the judges, and the defense counsel to shake their heads in wonder; and causes
the defendant to say, "I don't want to go to jail!" But sometimes, a few days in jail in the United
States is better than a lifetime of freedom in Kosovo, Afghanistan, Gaza, Libya, or another of the
earth' s current hell-holes.
But keep in mind that this won't necessarily work for everyone. A theft offense is a
crime involving moral turpitude, and if the client has anything else in their background that is the
least bit turpitudinous, a second offense, even if not an aggravated felony may cause him or her
to be subject to removal from this great country. Thus, we may discuss a post-conviction writ in
the prior case. Padilla v. Kentucky, 559 U.S.
III.
, 130 S.Ct. 1473 (2010).
Not being deported isn't the end of the story. It could get worse.
There is a third principle at work in these cases· Nearly everyone who is a lawful
permanent resident has come here from another country, has family abroad, has ties abroad, and
one shared characteristic is that they regularly travel abroad. There are different sets of laws
affecting those who are outside the United States and ineligible for entry or reentry.
That
concept is generally governed by 8 U.S.C. § 1182(a) which contains, if broken down into its
subparts, a list of about 180 reasons that people cannot enter the United States, even if they have
a "green card".
On the other hand, 8 U.S.C. § 1227(a) contains the list of those who are deportable or
removable from the United States.
A person may slip through the cracks of not being
deportable; but on the other hand, would not be allowed back into the United States if he or she
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were to leave and try to return. For example, see 8 U.S.C. § 1237(a)(2)(A)(ii)(I) which states
that:
"an alien who is convicted of a crime involving moral turpitude committed
within five years ... after the date of admission and is convicted of a crime for
which a sentence of one year or longer may be imposed, is deportable."
It doesn't have to be an aggravated felony. If the crime were committed more than five
years after the person's last entry, the person may not be deportable.
But if the person were then to leave the United States and apply for reentry, he/she may
well be denied reentry under 8 U.S.C. § 1182(a)(2)(A)(i), which prohibits entry to an alien who
has been convicted at any time of a crime involving moral turpitude or an attempt or conspiracy
to commit such a crime (unless it were a single, petty offense).
So you can do a good job for the client, vis-a-vis immigration today; but in doing so set
things up for there to be a serious problem in the future, such as years later when a parent dies
and the client leaves to attend the funeral or burial rites and runs into problems upon reentry to
the United States. You might get that call from Beij ing or Lagos, and it might have been your
"great work" that set up the problem. This should be known up front.
IV.
Another important concept to keep in mind is the definition of "conviction" under
the immigration laws. By 8 USC §1101(a)(48)(A),
"The term "conviction" means, with respect to an alien, a formal judgment of guilt
of the alien entered by a court or, if adjudication of guilt has been withheld, where"(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty
or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
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"(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien's liberty to be imposed."
This means that a person will have a conviction for immigration purposes regardless of
any state or federal remeliatorive provisions.
Deferred adjudication? It's a conviction for
immigration purposes. Think you got it expunged? You can't ever get all of it out of the
computers.
One of the more common problems we at the immigration bar see is the person who
received deferred adjudication and has been told that he or she now has no criminal background.
Later, they apply for naturalization to become citizens of the United States, or you have them on
a second case· The question is asked whether they've ever been convicted, and on the advice of
their prior criminal defense counsel, they answer that question, "no." They will be politely asked
to obtain a copy of the judgment of conviction for USeIS to "complete their flIes," and what
follows is a denial of the naturalization for giving false information to a federal officer and,
often, a notice that the government has begun removal proceedings against the person based on
that conviction. Or, if the person leaves the U.S. thinking they have no conviction and are taken
into custody or turned around at the attempted reentry.
v.
CONCLUSION - It's just as complicated as the dickens.
The effects of any particular conviction requires an individualized evaluation of the
client/defendant' s immigration, criminal, and personal background. Immigration counsel must
be brought into the case at the earliest possible time, to be able to assist you at crafting a proper
plea arrangement.
And sometimes, when it seems like deferred adjudication, with probation, is such a great
job on your part, remember that it may well result in removal proceedings, when there may be no
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relief available to the person and what your great lawyering did was to ensure that the person
would spend the rest of his life separated from his or her family in the United States.
At the immigration bar, we see it all the time.
Submitted by:
Peter D. Williamson
Chamberlain, Hrdlicka, White, Williams & Aughtry
1200 Smith St., Ste. 1400
Houston, Texas 77002
[email protected]
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