Immigration and Criminal Conduct

Overview of Immigration Consequences of Criminal Conduct for Survivors of Domestic Violence  Prepared By Ann Benson, Directing Attorney,  Washington Defender Association’s Immigration Project, Seattle, WA  -  April 2005,  reprinted with permission, © Washington Defender Association 2005  

Memo regarding admissibility and deportation under NACARA for persons convicted of domestic violence.  From Joseph E. Langlois, Chief, Asylum Division, Office of Refugees, Asylum, and International Operations to Asylum Officers dated September 6, 2007.

U.S. Supreme Court

Conduct made a felony under state law but a misdemeanor under the CSA is not a “felony punishable under the Controlled Substances Act” for INA purposes.  Lopez v. Gonzales,   127 S. Ct. 625 (U.S., Dec. 5, 2006).

Section 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.  INS v. St. Cyr, 533 U.S. 289 (2001).

U.S. Appeals Courts

2nd Circuit

The 2nd Circuit holds that although the IJ and BIA properly concluded that the petitioner pled to a burglary with the intent to commit larceny, it was improper for the BIA to have inferred from the plea colloquy that the petitioner intended a larceny offense involving a permanent, rather than a temporary, taking of property for the purpose of determining whether the petitioner committed a CIMT.  Wala v. Mukasey, Case #06-0238-ag (2nd Cir., Dec. 12, 2007).

5th Circuit

The 5th Circuit holds that a conviction for third degree criminal possession of stolen property under New York Penal Law constitutes a "theft offense" for purposes of INA § 101(a)(43)(G) [8 USC § 1101(a)(43)(G)].  Burke v. Mukasey, Case # 06-60710 (5th Cir., Dec. 10, 2007).

The 5th Circuit holds that an insurance fraud conviction where the amount of restitution in the plea agreement exceeded $10,000.00 for which he was jointly and separately liable, constituted an aggravated felony fraud crime.  Martinez v. Mukasey, Case #06-60039 (5th Cir., Nov., 14, 2007).

5th Circuit upholds BIA determination that conviction for injury to a child under the Texas Penal Code constituted an aggravated felony-crime of violence, and reiterates that "it is permissible to use a charging instrument to pare down a statute to determine if a violation of part of a statute constitutes a crime of violence when the statute as a whole categorically does not."  Perez-Munoz v. Keisler, Case #06-60440 (5th Cir., Nov. 6, 2007).

The 5th Circuit holds that a hit-and-run conviction under the Texas Transportation Code qualifies as a crime involving moral turpitude (CIMT.  Garcia-Maldonado v. Gonzales, Case #05-60692 (5th Cir. June 29, 2007).

The 5th Circuit finds that the BIA erred in finding her ineligible to apply for § 212(c) relief without allowing her the opportunity to demonstrate that her actual, subjective reliance on the prior state of the law caused her to delay her application.  Carranza-De Salinas v. Gonzales, Case No. 05-60878 (5th Cir., Jan. 23, 2007).

9th Circuit

The 9th Circuit upholds a BIA decision ruling that conviction for solicitation to possess at least 4 pounds of marijuana for sale constitutes a crime involving moral turpitude (CIMT).  Barragon-Lopez v. Mukasey, Case #05-73883 (9th Cir., Nov., 21, 2007).

The 9th Circuit reverses a BIA decision and determines that "Arizona’s statutory definition of attempted public sexual indecency to a minor under ARS §§ 13-1001 and 13-1403(B) includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and (U)".  Rebilas v. Keisler, Case #05-76988 (9th Cir., Nov. 2, 2007).

District Courts

U.S. DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN finds that while questions relating to admissibility may be asked prior to admission without Miranda warnings, questions relating only to past criminal behavior must be preceded by the Miranda warning.  U.S. v. Stan, Case 07-21 (U.S. Dist. Ct. VI, Div. St. Thomas and St. John, Aug. 3, 2007, unpublished).

BIA

BIA rules that sentence enhancement may be treated as an element of an offense in some circumstances.  Matter of Martinez-Zapata, 24 I.& N. 424 (BIA Dec. 19, 2007).

BIA rules on two cases, establishing guidelines for when a simple possession may be a recidivist possession.  In the first case, the Board laid out procedures for use in "cases involving aliens alleged to have state offenses corresponding to 'recidivist possession' in the absence of controlling circuit law.'  Matter of Carachuri-Rosendo, 24 I.&N. 382 (BIA Dec. 13, 2007).  In the second of these, the Board used these guidelines to decide a similar case. Matter of Thomas, 24 I.&N. Dec. 416 (BIA Dec. 13, 2007).

BIA rules that convictions for Domestic Violence, stalking or child abuse, prior to IIRIRA (1996) do not bar cancellation of removal.    Matter of Gonzalez-Silva, 24 I&N Dec. 205 (BIA June 25, 2007)

BIA rules that conviction under New York money laundering statute, New York Penal Law § 470.10(1), is a crime involving moral turpitudeThe offense of money laundering in violation of section 470.10(1) of the New York Penal Law is a crime involving moral turpitude.  Matter of Tejwani, 24 I&N Dec. 97 (BIA Feb. 22, 2007).

 

 

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