Chapter 6: Raed Gonzalez - Ww2.justanswer

What Do You Mean I Am Not DeportableBut I Am Inadmissible If I Travel?Chapter 6felony offenses is possibly an aggravatedfelony)conviction of simple possession of 30 grams or less lity. There is some overlap with thedeportability grounds, but the grounds are different andrequire close scrutiny. For example, the crimeinvolving moral turpitude ground of inadmissibilitycovers the same offenses as the crime involving moralturpitude deportability ground, but different rules applydepending on the length of sentence and number ofconvictions.Certain criminal grounds of inadmissibility do notrequire a conviction—mere “bad acts” or status cantrigger the penalty. Examples include engaging inprostitution or if the government has “reason tobelieve” the person has been a drug trafficker. Thecontrolled substance and moral turpitude grounds ofinadmissibility also allow for a finding ofinadmissibility without a conviction where a noncitizenadmits the essential elements of a controlled substanceoffense or of a crime involving moral turpitude.Generally, this ground has come into play when anoncitizen has made certain admissions to animmigration judge or an ICE officer; it does not applyto an admission in a criminal case that does not resultin a conviction.Convictions for aggravated felonies carry the mostsevere immigration consequences. If detained,aggravated felons are subject to mandatory detentionwithout bond and may be placed in expedited removalproceedings for deportation if not an LPR. Aconviction for an aggravated felony not only triggersdeportability, but it also bars eligibility for almost allforms of relief from removal, effectively subjecting theindividual to mandatory removal. When removed onthe basis of an aggravated felony conviction, anindividual is permanently inadmissible and thuspermanently barred from returning to the U.S. Inaddition, an individual removed on the basis of anaggravated felony conviction who returns to the U.S.unlawfully may be imprisoned for up to twenty years iffederally prosecuted for illegal reentryOffenses that constitute “crimes of violence” areaggravated felonies if a sentence of imprisonment ofone year or more is imposed The definition of crime ofviolence includes “(a) an offense that has as an elementthe use, attempted use, or threatened use of physicalforce against the person or property of another, or (b)any other offense that is a felony and that, by its nature,involves a substantial risk that physical force againstthe person or property of another may be used in thecourse of committing the offense.” Offenses that havebeen found to constitute crimes of violence generallyinclude sexual assaults, intentional assaults,kidnappings, robberies, and burglaries.Drug trafficking offenses are aggravated feloniesregardless of the length of the sentence imposed.Federal law, not state law, determines whether anoffense constitutes an aggravated felony “drugtrafficking” offense. However a misdemeanor or felonyconviction for first-time simple possession of acontrolled substance—except for possession of morethan five grams of crack cocaine or any amount offlunitrazepam (the “date rape drug”)—is not a “drugtrafficking” aggravated felony offense. A subsequentdrug possession conviction may, however, be deemed adrug trafficking aggravated felony. A conviction of anydrug sale or possession with intent to sell continues toqualify as a drug trafficking aggravated felony.A firearm offense can be considered anaggravated felony on three different grounds. First,certain offenses involving sale or delivery of firearmsmay be deemed a firearm trafficking offense. Second,specific firearm offenses, such as possession of amachine gun and possession of firearm by felon, willbe considered aggravated felonies because similarfederal offenses have been labeled as aggravatedfelonies in the immigration statute. Third, any firearmoffense might be considered a “crime of violence”Aggravated Felonies GenerallyA noncitizen is deportable if convicted of anaggravated felony any time after admission.“Aggravated felony” is an immigration law term thatincludes an expanding list of offenses defined in INA §101(a)(43), 8 U.S.C. § 1101(a)(43). The label issomewhat misleading, as an offense classified as an“aggravated felony” does not have to be either“aggravated” or a “felony” under state law. As a resultof broad interpretations of the statutory language, theterm may include some state misdemeanors, such asmaintaining a place of prostitution and misdemeanorpossession of marijuana if the defendant has a priordrug conviction. Aggravated felony offenses cangenerally be classified into the following groupings: Specific offenses such as murder, rape, sexualabuse of a minor, drug and firearm traffickingSpecific offenses for which a sentence ofimprisonment of one year or more is imposed,such as theft, burglary, forgery, crimes ofviolence, perjury, and obstruction of justiceFraud or deceit offenses in which the loss tothe victim exceeds 10,000Any attempt or conspiracy to commit any ofthe enumerated aggravated felony offenses(solicitation to commit any of the aggravated2

What Do You Mean I Am Not DeportableBut I Am Inadmissible If I Travel?Chapter 6U.S. and punishable by at least one year in prison. Todetermine whether an offense is punishable by at leastone year in prison for purposes of the federalsentencing guidelines, courts consider the maximumaggravated sentence that could be imposed for thatoffense on a defendant.A noncitizen is also deportable if convicted of twoor more CIMTs, not arising out of a single scheme ofcriminal misconduct, committed at any time afteradmission and regardless of the actual or potentialsentence. Two CIMTs arising out of a separate scheme,that are consolidated for judgment or are runconcurrently, will likely still be considered separateconvictions for immigration purposes and will triggerdeportability. Conversely, if a person is convicted oftwo or more CIMTs arising out of a single scheme, theconvictions should not trigger deportability.A noncitizen is inadmissible for a conviction of acrime involving moral turpitude (CIMT). A noncitizencan also be inadmissible for an admission ofcommitting such an offense—usually to animmigration judge or immigration officer. Forpurposes of inadmissibility, there is an exception for apetty offense. A conviction is considered a pettyoffense if the noncitizen has no prior CIMTconvictions and the maximum possible sentence forthat offense is one year or less and the actual sentenceof imprisonment, active or suspended, is six months orless.A noncitizen who has been convicted of two ormore offenses of any type with an aggregate sentenceof imprisonment, active or suspended, of five years ormore is inadmissible.aggravated felony if accompanied by a sentence ofimprisonment (active or suspended) of one year ormore.Conviction of a Crime Involving Moral TurpitudeA noncitizen may be deportable and/orinadmissible for a conviction of a crime involvingmoral turpitude (CIMT) depending on the potentiallength of sentence, the number of CIMT convictions,and the date the offense was committed in relation towhen the noncitizen was admitted to the U.S.There is no statutory definition for the immigrationterm “crime involving moral turpitude” (CIMT). Thereis, however, a considerable amount of case lawgoverning what constitutes a CIMT. As a general rule,a crime involves “moral turpitude” if it is inherentlybase, vile, or depraved, and contrary to the acceptedrules of morality and the duties owed between personsor to society in general. The CIMT label covers a broadcategory of criminal offenses and generally includes: offenses in which either an intent to steal ordefraud is an element (such as theft andforgery offenses)many aggravated assaults (depending onwhether infliction of bodily injury is anelement)most sex offensesExamples of crimes not involving moral turpitudeinclude simple assault, misdemeanor breaking andentering, carrying a concealed weapon, trespass,unauthorized use of a vehicle, drunk and disruptive,disorderly conduct, and regulatory offenses. However,the Board of Immigration Appeals (BIA) has held thatthis general rule does not apply where an assault orbattery involves some aggravating dimension thatsignificantly increases the culpability of the offense,such as the perpetrator’s use of a deadly weapon or theinfliction of serious injury on a person whom societyviews as deserving of special protection, such aschildren, domestic partners, or peace officers.A conviction for impaired driving may be a CIMTdepending on the presence of aggravating or grosslyaggravating factors. The BIA has held that a simpledriving while impaired offense is not a CIMT. Incontrast, the BIA has held that a conviction for anaggravated DWI offense containing an element ofdriving with a revoked license is a CIMT. Under thiscase law, an impaired driving conviction will notconstitute a CIMT offense if there are no aggravatingsentencing factors.A noncitizen is deportable if convicted of oneCIMT committed within five years of admission to theConviction of Any Controlled Substance Offense3A noncitizen is deportable for any violation of lawrelating to a controlled substance, whether felony ormisdemeanor, except for a single offense of simplepossession of 30 grams or less of marijuana. Thatoffense is not a deportable offense if the defendant hasno prior drug convictions. A drug paraphernaliaconviction is a deportable offense, however.“Controlled substance” is defined by federal law andrefers to substances covered by the federal drugschedules in 21 U.S.C. § 802.A noncitizen is also deportable if he or she is orhas been a drug abuser or addict at any time after beingadmitted to the U.S. This ground of deportability doesnot require a conviction. Neither the immigrationstatute nor the regulations define “abuse” or“addiction” in the deportability context. This will mostlikely come up during an application for relief fromremoval or during naturalization proceedings. It isunclear what sorts of admissions or conduct wouldqualify as drug abuse or drug addiction, however, it is

What Do You Mean I Am Not DeportableBut I Am Inadmissible If I Travel?Chapter 6A noncitizen is deportable if convicted of a crimeof domestic violence, stalking, child abuse, childneglect, or child abandonment, whether felony ormisdemeanor. These grounds of deportability onlyapply to convictions or violations occurring afterSeptember 30, 1996.A crime of domestic violence has two mainrequirements. First, the offense must be a crime ofviolence as defined in 18 U.S.C. § 16. The definition ofcrime of violence for a crime of domestic violence isthe same as for aggravated felonies. Second, theoffense must be against a current or former spouse, coparent of a child, a person with whom the defendant isor has cohabited as a spouse, any other individualsimilarly situated to a spouse, or other individualprotected under federal, state, tribal, or local domesticor family violence laws.ICE has alleged that a conviction of assault on afemale is a crime of domestic violence if against aprotected individual. Some noncitizens, however, havesuccessfully argued that assault on a female does notsatisfy the crime of violence definition (the firstrequirement discussed above) and is, therefore, not acrime of domestic violence.A noncitizen is also deportable if enjoined by aprotective order and found by a civil or criminal courtto have violated the portion of a protective order thatprotects against credible threats of violence, repeatedharassment, or bodily injury. A violation of such aprotective order is a deportable offense, even thoughthe relationships covered by state law are broader thanunder federal law.possible that ICE might rely on an admission of druguse on the record to demonstrate drug addiction or drugabuse.A noncitizen is inadmissible for any conviction ofan offense related to any controlled substance, whetherfelony or misdemeanor. A noncitizen can also beinadmissible for an admission of committing such anoffense—usually to an immigration judge orimmigration officer.Drug offenses carry serious consequences for nonLPR clients. Drug offenses trigger inadmissibility andpermanently may preclude noncitizens from obtainingLPR status. The only exception is for simplepossession of 30 grams or less of marijuana if thedefendant has no prior drug convictions. Such anoffense will still make the defendant inadmissible, butcan be waived by an immigration judge under certaincircumstances.A person is also inadmissible if the U.S.government knows or has reason to believe that theperson is an illicit trafficker, or knowing aider, abettor,assister, conspirator, or colluder with others in illicittrafficking, in a controlled substance. No conviction (oradmission) is necessary. Cases have held “drugtrafficking” to mean that a person must have been aknowing and conscious participant or conduit in thetransfer, passage, or delivery of narcotic drugs.Conviction of a Firearm or Destructive Device OffenseA noncitizen is deportable for a single convictionof purchasing, selling, offering for sale, exchanging,using, owning, possessing, or carrying in violation ofany law, whether felony or misdemeanor, a firearm ordestructive device (including part or accessory) asdefined in 18 U.S.C. § 921(a). The federal law isbroader than most state laws and includes all firearms(handguns, rifles, shotguns, etc.), with no restrictionsas to barrel length. There is an exception for antiquefirearms. A BB or pellet gun is not considered afirearm under the federal law. The ground ofdeportability for firearms and destructive devicesoffenses is very broad. Where the use of a firearm is anessential element of a crime, the conviction will beconsidered a firearm offense. A conviction under adivisible statute (which includes offenses bothinvolving a firearm and not involving a firearm) is nota firearm offense unless the record of convictionestablishes that the offense committed involved afirearm. Federal law also criminalizes the possession ofa firearm by noncitizens unlawfully present in the U.S.and by certain nonimmigrant visa holders.Conviction of a Crime of Domestic Violence, Stalking,Child Abuse, Child Neglect, or Child Abandonment, ora Violation of a Protective OrderProstitutionProstitutes or persons who have engaged in orsought to engage in prostitution or to procureprostitution during the past 10 years are inadmissible.The Board of Immigration Appeals has held that to“engage in” prostitution, one must have engaged in aregular pattern of behavior and conduct. A convictionof a prostitution offense is also a crime involving moralturpitude and may trigger inadmissibility on thatground.Significant Traffickers in Persons4Any noncitizen whom the President publicly listsin a submission to Congress as playing a significantrole in a severe form of trafficking in persons (e.g., theuse of force, fraud, or coercion for sex traffickingand/or involuntary servitude, peonage, debt bondage,or slavery) or as materially assisting in or providingfinancial or technological support for activities of sucha trafficker, is inadmissible A person is alsoinadmissible if the government knows or has reason to

What Do You Mean I Am Not DeportableBut I Am Inadmissible If I Travel?Chapter 6immigration purposes. Prior to the passage ofIIRAIRA, the INA did not contain a statutorydefinition of conviction so case law determined whatdispositions were considered convictions forimmigration purposes. The new statutory definitionoverruled the previous case law and now includesnearly any conviction regardless of the type ofsentence imposed.Although the definition ofconviction has been broadened, the term ofimprisonment can limit the damage of a conviction.Typically, a sentence of less than one year will avoidthe finding that a conviction constitutes an aggravatedfelony. In addition, a person found guilty of a violationdoes not have a conviction for immigration purposes.believe that the individual has been a knowing aider,abettor, assister, conspirator, or colluder with such atrafficker in severe forms of trafficking in persons.Money LaunderingA noncitizen is inadmissible if the governmentknows or has reason to believe that the individual hasengaged, is engaging, or seeks to enter the U.S. toengage in money laundering, or who is or has been aknowing aider, abettor, assister, conspirator, orcolluder with others in money laundering.An interested reader can find the complete list ofthe criminal grounds of inadmissibility at INA §212(a)(2), 8 U.S.C. § 1182(a)(2) and a complete list ofthe criminal grounds of deportability at INA §237(a)(2), 8 U.S.C. § 1227(a)(2). There is also agrowing list of security-related grounds ofdeportability and inadmissibility linked to criminalactivity. See INA § 237(a)(4), 8 U.S.C. § 1227(a)(4);INA § 212(a)(3), 8 U.S.C. § 1182(a)(3).DETERMINING WHETHERTRIGGERS REMOVALBurden of Proof on ICE in Establishing DeportabilityIn removal proceedings, ICE has the burden ofestablishing that the noncitizen is deportable. Thus,ICE must demonstrate that the offense of convictionfalls into a ground of removal. If the statute ofconviction is divisible, and there is insufficientinformation in the record of conviction to determinewhether the elements of the offense carry animmigration penalty, any ambiguity should beconstrued in the noncitizen’s favor.CONVICTIONRecord of ConvictionTo determine whether a conviction qualifies as anoffense that triggers deportability or inadmissibility,the immigration court examines the elements of thestatute allegedly violated, not the individual’s actualconduct.If a statute is broad enough to include bothoffenses that carry immigration penalties and offensesthat do not it is considered a divisible statute. Theimmigration court is then permitted to look at theunderlying court record to determine whether theoffense of conviction carries an immigration penalty.The immigration court may not look beyond the recordof conviction in determining an element of the offense.If the record of conviction does not establish all of theelements necessary for a removable offense, theimmigration court must rule in favor of the noncitizen.The immigration court may look beyond therecord of conviction in cases involving aspects of thecrime that are considered as going beyond the elementsof the offense. These ruling appear to be limited toparticular areas such as sexual offenses (to determinewhether the victim was a minor), domestic violenceoffenses (to determine if victim is a protected party)and fraud offenses over 10,000.In addition to examining the elements of anoffense in order to determine if it constitutesremovable crime, the court must first determine if theconviction itself constitutes a conviction forBurden of Proof on Noncitizen in Applying for ReliefIf ICE establishes that a noncitizen is removable,the noncitizen may be able to apply for some form ofrelief from removal. In general, the noncitizen has theburden of proving he or she is eligible for a form ofrelief from removal.Although the forms of relief available tononcitizens with criminal convictions have beenlimited, there are still defenses available. Some ofthose include cancellation of removal; former INA§212(c) relief; asylum; withholding of removal; reliefunder the Convention Against Torture; generalnonimmigrant waiver; waiver for certain criminalconduct,includin

1 Raed Gonzalez was born in Puerto Rico and is presently a Senior Attorney at Gonzalez Olivieri LLC in Houston, TX. He earned his B.A. (1992) and J.D. (1996) with honors from the Inter American University of PR. As part of his LLM he studied comparable constitutional law with Justice Antonin Scalia at the University of Barcelona (Spain). He .