SC Lawyer, May 2004, #5. Protecting your non-citizen client from immigration consequences of criminal activity.

• Author: By Allen C. Ladd

South Carolina Lawyer

2004.

SC Lawyer, May 2004, #5.

Protecting your non-citizen client from immigration consequences of criminal activity

South Carolina LawyerMay 2004Protecting your non-citizen client from immigration consequences of criminal activityBy Allen C. LaddA non-citizen client charged with a criminal offense faces serious potential consequences under U.S. immigration law. Convictions for crimes involving moral turpitude, multiple offenses and aggravated felonies will, generally speaking, render the non-citizen powerless to remain in this country legally. In some instances, admission to a crime or suspected criminal behavior without a conviction is sufficient. This article is an overview of the collateral consequences of criminal activity affecting the non-citizen client.

Basic concepts and terms

If convicted, the non-citizen not only faces sentencing under the state or federal criminal justice system but also may be prosecuted under the U.S. immigration laws. While this is an administrative, not criminal, setting, the consequences are often severe: forcible removal from the United States (formerly called "deportation" or "exclusion") and a bar to lawful admission (formerly called "lawful entry") in the future.

The term "non-citizens" refers to any foreign nationals who are not U.S. citizens. This term cuts a very broad swathe from undocumented aliens, visitors, students and work-visa holders to permanent residents and green card holders. For purposes of this article, the client's legal or illegal immigration status is irrelevant; all are equally at risk.

"Deportable" means that a non-citizen is subject to removal from the U.S. through proceedings prosecuted by the Department of Homeland Security (DHS) and/or the Department of Justice (DOJ). The non-citizen "in proceedings" may be also detained. Recently, the DHS announced a mandatory detention program for individuals who are subject to removal orders. "ICE Expands Pilot Project to Detain Deportable Aliens," DHS Immigration and Customs Enforcement press release, March 26, 2004. Once "removed" (deported), the non-citizen is barred from returning for at least 10 years. That is, he or she is "inadmissible" for this period.

The various criminal-related "grounds of deportability" are set out in 8 U.S.C. § 1227. The various "grounds of inadmissibility" are found in 8 U.S.C. § 1182. A representative sampling appears in the chart that accompanies this article.

Conduct or convictions that make the non-citizen "inadmissible" will trigger these harsh consequences:

* denial of visa at a U.S. consulate;

* denial of lawful entry (admission) into the U.S. at an entry point; (The administrative proceedings to deny an individual entry, formerly called "exclusion" proceedings, are now merged into "removal" proceedings.) Warning: This can even happen to returning permanent residents.

* detention, following denial of admission at an entry point, followed by removal; and

* if the non-citizen is already in the United States, whether in lawful or unlawful status, inadmissibility will trigger a denial of an application to (a) extend, (b) change "visa status" or (c) "adjust" to permanent residence. In effect, he or she hits a glass ceiling.

Generally speaking, grounds of deportability are broader than the grounds of inadmissibility. The respective burdens of proof are:

* The non-citizen must establish admissibility by evidence that is "clear and beyond a doubt." 8 U.S.C. § 1229a (c)(2).

* The government must establish deportability by clear and convincing evidence. 8 U.S.C. § 1229a(c)(3). Woodby v. INS, 385 U.S. 276 (1966).

Convictions for "aggravated felonies" 8 U.S.C. § 1101(a)(43) render the non-citizen deportable, through summary proceedings for non-residents 8 U.S.C. § 1228(b), and permanently barred from admission into the United States. Oddly, many "aggravated felonies" are not "aggravated" (in that they involve no use of force), and many are misdemeanors. The practitioner must consult the U.S. Code and state criminal laws to determine if the offense rises to the level of an aggravated felony.

Convictions for "crimes involving moral turpitude (CMTs)", 8 U.S.C. § 1229a (c)(2), and for various other crimes set out in the U.S. Code and state statutes also render the non-citizen deportable. There is no statutory definition of the term. The accepted usage is for "conduct which is inherently base, vile or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general. .- Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude." Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). ("BIA refers to the Board of Immigration App- eals, the administrative appeals board for decisions relating to deportability and inadmissibility.) By way of example, acts of fraud and DUI offenses are CMTs. See discussion under analysis of "convictions" under immigration law.

Note that multiple criminal convictions (whether or not involving moral turpitude) can have the unique effect of triggering inadmissibility or deportability in the aggregate, although often the individual convictions may not. The whole may be greater than the sum of its parts. This deserves special mention because it will require the careful criminal practitioner to obtain the client's entire criminal history in order to prepare a proper immigration defense. A 10-year-old conviction for DUI (a crime involving moral turpitude), if not discovered, will have disastrous effects when coupled with a second DUI or other crime (whether or not involving moral turpitude).

A permanent resident who applies for naturalization (U.S. citizenship) is subject to a distinct set of grounds for disqualification (such as a "good moral conduct" standard), see 8 U.S.C. § 1101(a)(f), all the while remaining subject to the deportability and inadmissibility provisions.

Points to consider

(1) A non-citizen, already present in the U.S. who is found inadmissible (and encounters the "glass ceiling" mentioned above) may then be placed in removal proceedings and "deported." This "double whammy" results if the ground of inadmissibility has a deportability counterpart. Please refer to the accompanying chart.

(2) Having permanent resident "green card" status does not protect the non-citizen from removal, only U.S. citizenship does. Merely having a U.S. citizen spouse or other family members in legal status will not necessarily prevent the non-citizen from removal.

(3) Since a removal (deportation) proceeding is "a purely civil action," "various protections that apply in the context of a criminal trial do not apply in a deportation hearing." INS v. Lopez-Mendoza, 468 U.S. 1032, at 1038, 1039 (1984). It follows that many important due process protections do not extend as generously to non-citizens as to citizens. Generally, the non-citizen is afforded only the right to a "fundamentally fair hearing" see, e.g., Landon v. Plasencia, 459 U.S. 21, at 34-35 (1982), subject to a weighing of the federal government's interests.

(4) Non-citizens may be found deportable or inadmissible even if convicted of an underlying offense that is not an aggravated felony or a crime involving moral turpitude. Please refer to the chart.

Hierarchy of "inadmissible" and "deportable" offenses

* Conviction for the most serious offenses, termed "aggravated felonies," 8 U.S.C. § 1101(a)(43), will bar the non-citizen from re-admission on a permanent basis. Only a pardon or other extraordinary relief can undo the damage caused by conviction of an aggravated felony.

* Less serious consequences result for convictions that render the non-citizen deportable or inadmissible without waiver or exemption but with the possibility of applying for re-admission following a prescribed waiting period, generally 10 years.

* Convictions for the least onerous allow the non-citizen to apply for a waiver, often based on exceptional circumstances, or for which there may be a statutory exemption (such as for simple possession of 28 grams or less of marijuana or petty offense exemption to conviction for a single CMT).

For the most part, the listed grounds of inadmissibility and deportability (see chart) are defined by actual conviction for criminal conduct. Other related grounds include mental disorder (a possible consequence of an insanity plea), drug addiction and habitual drunkenness and international child abduction. Of particular concern are crimes involving moral turpitude (CMTs) and controlled substance violations (as defined in § 102 of the Controlled Substances Act, 21 U.S.C. § 802), because a non-citizen who merely admits having committed the crimes or acts that constitute the essential elements of such crimes is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I) and (II). The law allows for exceptions under subsections 1182(a) (2)(A)(ii)(I) and (II) for certain youth offenders and for "petty offenses" with sentences of less than six months imposed with one year maximum.

Several observations:

* CMTs cover a broad range of offenses such as DUI, crimes with fraud as an element, murder, rape, robbery, kidnapping, voluntary manslaughter, some involuntary manslaughter offenses, aggravated assaults, mayhem, theft offenses, spousal abuse, child abuse and incest. Whereas in some areas, such as fraud, the inquiry into moral turpitude may be straightforward, in others it is not and requires a case-by-case approach. Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001).

* A mere "admission," even if obtained under legally suspect circumstances, will uphold a finding of inadmissibility, as will a conviction based on a tainted confession, unless the conviction is set aside.

* The adverse consequences of inadmissibility apply equally to visa applicants at U.S. consulates overseas and to individuals applying at a U.S. port of entry, such as Canadian citizens and other visa-exempt individuals (including foreign tourists and business visitors under the Visa Waiver Program).

* Perhaps most significantly, applicants for permanent residence are also at risk - that is, non-citizens who are already physically present in the United States and who have family or employer sponsors to help them upgrade to "green card" status. It is a distressing thing to be so close to legal, permanent status, only to have it taken away because of a past indiscretion.

Analysis of "convictions" under immigration law

There are several guiding principles that will aid the criminal practitioner in evaluating the immigration consequences of a criminal conviction.

First, it is absolutely essential to understand the term "conviction." It has two components:

(1) a formal judgment of the non-citizen's guilt, either (a) entered by a court or (b) if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or (ii) the non-citizen has entered a plea of guilty or nolo contendere or (iii) the non-citizen has admitted sufficient facts to warrant a finding of guilt; and

(2) court-ordered punishment, penalty or restraint on the alien's liberty. 8 U.S.C. § 1101(a)(48)(A). In this vein, "term of imprisonment" and "sentence" - that is, any forms of punishment - are 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. 8 U.S.C. § 101(a)(48)(B).

In other words, the statutory definition of the term "conviction," above, includes deferred adjudication under many state statutes, and "term of imprisonment" and "sentence" will encompass a sentence that is suspended to a term of probation or community supervision. It follows that an order or probation or community supervision under a state statute will, unfortunately, constitute a term of imprisonment. 8 U.S.C. § 1101(a)(48)(B).

In determining whether the state or federal offense in question meets the definition of a particular offense under the immigration statute, the practitioner will refer to the minimum elements of the offense, based solely on the record of conviction, not the client's conduct. Matter of Short, 20 I&N Dec. 136 (BIA 1989), involving determination as to crime of moral turpitude. The minimum conduct under the particular statute, or section of the statute, will be presumed in favor of the non-citizen. "Record of conviction" includes the judgment, sentence, plea agreement, plea transcript, indictment and information but not, for example, a police report. Matter of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996). Details of criminal conduct in a sentence enhancement statute also are not relevant to a determination. See, generally, Taylor v. U.S., 495 U.S. 575 (1990).

The doctrine of divisibility also operates in favor of the non-citizen. If charged under a criminal statute involving multiple sections, some of which are deportable but others are not, and the record is not clear under which of these sections the non-citizen is being prosecuted, then inadmissibility or deportability cannot be established, since it is the minimum conduct which is presumed. Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999).

Conclusion

Your client's future under the U.S. immigration laws is in your hands. A conviction may mean that your client may be separated indefinitely from loved ones in the United States. Keep these points in mind when representing a non-citizen client:

* At the outset, ask if the client is a U.S. citizen. Find out what his or her immigration status is. Get appropriate documentation such as U.S.-issued immigration documents. For the undocumented client who is a Mexican national, ask for a voting registration card and consular "matrícula" identity document.

* Tell the client that there may be problems under the immigration laws and that you will need to investigate them. Assure the client and family members that you are trying to help them, they can trust you and you are not going to turn the client over to the U.S. immigration authorities.

* Find out about immediate family members (spouse, children and parents): names, dates of birth, immigration status as well as any potential financial hardship (e.g., relating to coverage for a family member's serious medical condition) that could arise if the non-citizen is incarcerated and/or removed. Sometimes a waiver is available if it can be proved that removal would cause great hardship to a close family member in "legal" status.

* Get an FBI report of your client's criminal history "rap sheet" that will cover all jurisdictions. Contact your local law enforcement center for fingerprinting procedures. Do not rely on a "SLED check" or other name-based record check.

* Avoid guilty pleas if at all possible without first confirming the likely immigration consequences. Recall that a criminal conviction may not be collaterally attacked in immigration proceedings.

* Become familiar with the South Carolina pardon process and with the other possible options for relief under federal or state law.

* Contact an experienced immigration practitioner for advice.

* Coordinate your client's defense as may be necessary in his or her best interests.

* Always remember: an adjudication of guilt is, for immigration purposes, a "conviction," regardless of rehabilitative provisions and even expungement.

Allen C. Ladd , P.C. is a Greenville solo practitioner specializing in the area of immigration law.

Copyright (c) 2004 by the South Carolina Bar. All rights reserved. No part of this publication may be reproduced without written permission.