Friday, May 25, 2018
What Happens to an Immigration Petition If the Sponsor Dies? If an immigrant's sponsor dies before the immigration process is finished, it's not necessarily the end of the case.
If you’re waiting to immigrate to the U.S. on the basis of a visa petition filed by a family member who is a U.S. citizen or lawful permanent resident, that person’s death will certainly make the process more difficult. But unlike in past years, when the visa petition always died with the petitioner, you may still be able to get a U.S. green card. Your success depends on your relative’s status in the U.S., your relationship to him or her, where you currently live, and whether you have relatives in the United States who are willing to serve as financial sponsors for you.
Widow or Widower of a U.S. Citizen
If you were married to or the minor child of a U.S. citizen, you are in an especially good position to get a green card. Even if your U.S. citizen spouse died before filing the initial visa petition for you (on Form I-130) or before the petition was approved, you may be able to carry on and petition for yourself and your minor children.
You would file your visa petition on USCIS Form I-360. Unlike other family beneficiaries, you need not have an Affidavit of Support filed on your behalf.
There’s a deadline: You must file the petition no later than two years after the death of your U.S. citizen spouse. Also, remarrying before you are approved for your green card will destroy your right to it.
See How to File an I-360 "Special Immigrant" Green Card Petition.
Other Family Relations
The Family Sponsor Immigration Act, signed by President Obama in 2009, provides a potential remedy for spouses of U.S. citizens and permanent residents, unmarried sons and daughters of citizens, spouses and unmarried sons and daughter of green card holders, married sons and daughters of citizens, and brothers and sisters of citizens, in cases where the original petitioner has died.
The children of people on the above list may also be included, so long as they continue to meet the legal definition of "child" when the family’s priority date becomes current. (Immediate relatives of U.S. citizens don’t have to worry about priority dates, but preference relatives, who face annual limits on the numbers of visas allotted, must wait until a visa becomes available to them, based on their priority date – or the date their visa petition was first filed.)
If you fall into one of the above categories, and your petitioner dies, you may be able to apply for what’s called reinstatement of your visa petition on humanitarian grounds. However, you'll have to meet certain conditions, including that:
your Form I-130 has already been approved
you were living in the United States at the time the petitioner died and continue to reside there on the date USCIS makes a decision on your application, and
you find someone eligible and willing to act as your financial sponsor in place of your original petitioner (as described below).
As you can see, if you are living overseas at the time the petitioner dies, the petition will be revoked and you will not be able to go directly forward with an application for a green card. You can apply to USCIS for humanitarian reinstatement of the visa petition under old laws, but such a grant is completely discretionary. You're likely to face long delays. You’ll need a lawyer’s help to present compelling evidence of why your approval should be granted.
Who Can Serve as a Substitute Sponsor
Serving as a substitute sponsor is a primarily financial relationship. It involves filling out an Affidavit of Support on USCIS Form I-864. The Affidavit must indicate that the new sponsor is able to support the immigrants, as well as his or her own household, at a level that’s at or above 125% of the federal Poverty Guidelines. To see the latest guidelines, look at Form I-864P on the USCIS website.
In fact, by filing Form I-864, the substitute sponsor promises the U.S. government to pay back any need-based public assistance that the named immigrants receive for approximately the first ten years of their having a green card.
Some other eligibility requirements apply to the substitute sponsor as well. He or she must be a U.S. citizen or a lawful permanent resident of at least 18 years of age who has a domicile in the United States. And the sponsor must be a relative of yours. Eligible relatives include your spouse, son or daughter (aged 18 or older), parent, mother-in-law, father-in-law, sibling, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild (age 18 or older).
Getting Legal Help
If your petitioner has died, your wisest course would be to consult with an experienced U.S. immigration attorney. The attorney can determine whether you are still eligible for a green card and guide you through the appropriate application process.
Posted by CISLAWOFFICE at 10:54 AM
Thursday, May 17, 2018
How to Use the Categorical Approach Now1 Katherine Brady, ILRC With a few exceptions, immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Expert use of the categorical approach may be the most important defense strategy available to immigrants convicted of crimes. This is especially true now that the Supreme Court again has addressed how the analysis must be applied, in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013). These decisions effectively overrule a lot of past precedent, to the benefit of immigrants. In 2014 the Board of Immigration Appeals (BIA) adopted the Supreme Court’s analysis and withdrew its own conflicting precedent. Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014), withdrawing Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). If you represent an immigrant convicted of a crime and do not understand how to use the categorical approach in light of recent decisions, you may be doing your client a terrible disservice. Relying on older precedent, you may think that the conviction has adverse immigration consequences, when under recent precedent it should have no consequences, or at least less serious ones. Likewise, immigration judges who do not correctly apply the categorical approach commit reversible error. See Matter of Chairez-Castrejon, supra at 358. The purpose of this article is to provide a step-by-step guide on how to use the categorical approach under current law. Part I provides a concise outline of the analysis, in five steps. Part II discusses these steps in more detail and with examples. Part III provides more examples of formerly removable offenses that now should be held immigration-neutral. Part IV discusses in what contexts the full categorical approach does and does not apply. In particular, at this writing the full categorical approach applies to moral turpitude determinations in some circuits but not others, and applies to determining whether a crime is an aggravated felony except for a few cases where the circumstance-specific inquiry applies. See Part IV. This article is more of a how-to guide than an analysis of the reasoning of the key cases and their implications. For a more in-depth discussion of Moncrieffe v. Holder, Descamps v. United States, and Matter of Chairez-Castrejon, see Practice Advisories available online.2 As always, how much and whether to rely upon new arguments depends on context. Advocates representing non citizens in removal proceedings can advance these arguments. Advocates considering whether to file an affirmative application, in cases where this would expose a potentially removable person to authorities, should consider the chances that the argument might be rejected while the application is pending. Criminal defenders always should try to take the most conservative option of pleading specifically to a “good” offense, even if the statute really should be considered not divisible.
read the full article here:
read the full article here:
Posted by CISLAWOFFICE at 12:02 PM
Friday, April 20, 2018
Nonimmigrant Waivers Pursuant to INA § 212(d)(3), Including Form I-192
For a variety of different reasons, many foreign nationals find themselves inadmissible to the U.S. Inadmissible individuals cannot even enter the U.S. for a short shopping trip or even in-transit to another destination. Fortunately, however, most inadmissible foreign nationals can overcome their inadmissibility in order to enter the U.S. on a temporary basis by applying for a nonimmigrant waiver pursuant to section 212(d)(3) of the Immigration and Nationality Act (“INA”).
A nonimmigrant waiver differs from an immigrant waiver in the same way that a nonimmigrant visa differs from an immigrant visa. If a foreign national is seeking to enter the U.S. to live here on a permanent basis – as a permanent resident with a “green card” – then s/he requires an immigrant visa. If s/he is inadmissible, then s/he will require an immigrant waiver in addition to his/her immigrant visa. There is not an immigrant waiver available for all grounds of inadmissibility.
If a foreign national is seeking to enter the U.S. on a temporary basis, then s/he requires a nonimmigrant visa [unless s/he is visa exempt like most Canadians]. If the potential nonimmigrant is inadmissible, then s/he will require a nonimmigrant waiver. Even visa-exempt Canadians seeking to enter solely as visitors for a few hours will require a nonimmigrant waiver if any ground of inadmissibility applies.
Section 212(d)(3) of the INA provides for a nonimmigrant waiver of virtually all grounds of inadmissibility to the United States (except security and related grounds of inadmissibility). Although all nonimmigrant waivers under INA § 212(d)(3) are adjudicated by the Admissibility Review Office (“ARO”), which is a sub-office of U.S. Customs and Border Protection (“CBP”), there are two (2) different applications processes for: (1) waiver applications filed at a U.S. Consulate abroad; and (2) waiver applications filed at a U.S. Port of Entry. As discussed in more detail below, only waivers applied for at a Port of Entry require the submission of Form I-192 together with the appropriate filing fee.
Form I-192, Application for Advance Permission to Enter as a Nonimmigrant [Pursuant to INA § 212(d)(3)(A)(ii)]
Visa-exempt foreign nationals, like Canadian citizens, that are deemed to be inadmissible to the U.S. must apply for a nonimmigrant waiver by submitting a completed Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, to CBP officials at a U.S. Port of Entry together with the appropriate filing fee and other required supporting documents.
The specific filing procedures at the land border ports of entry along the northern border will vary depending upon the port. For instance, in the Buffalo area, applications must be filed in-person at any land border port of entry. The fee is accepted and receipted, fingerprints are taken, and the application is reviewed for completeness. This process is the most common along the northern border, with the exception of ports of entry from St. Ste Marie, Michigan east to Detroit, Michigan. Rather than in-person filing, these ports of entry require the mailing of all nonimmigrant waiver applications together with fee. The I-192 waiver office then sends fingerprinting instructions to the applicant, requiring him/her to appear in-person at a port of entry to complete the fingerprinting process. Thus, no I-192 waiver application can be completed totally by mail.
Form I-192 waiver applicants who are physically present in the United States should keep in mind that a proper waiver application requires departure from the U.S. You will not be permitted to depart the U.S., file the waiver application, and then return to the U.S. unless you are already in possession of a nonimmigrant waiver and only departed the U.S. in order to apply for a renewal.
Form I-192 waiver applicants who intend to submit the waiver application at a land border port of entry should be aware that, unless the applicant is in possession of a valid waiver, s/he will be subject to a formal refusal of entry. This formal refusal does not create additional grounds of inadmissibility or make a waiver more difficult to obtain. Rather, many individual waiver applicants are caught off-guard upon being informed that s/he is the subject of “a formal refusal of admission to the United States,” as it sounds worse than it really is. Many also find it embarrassing.
The filing procedure is the same at all pre-clearance ports within Canadian airports, where applicants file Form I-192 together with supporting documents in person. Fees are receipted and fingerprints are taken at the time of filing.
Both pre-clearance ports and land border ports of entry will often have limited hours on specific days during which they will accept waiver applications. It is therefore recommended that applicants contact their nearest port of entry in advance before planning on a date to make an in-person application. You can also visit the CBP website [http://www.cbp.gov/xp/cgov/travel/id_visa/indamiss_can_info.xml] for information regarding filing locations and times.
If you live in the Toronto area, the I-192 Office located within Toronto Pearson International Airport is open on Saturdays from 8:00 a.m. to 7:00 p.m. The I-192 Waiver Office is located at Terminal 1, Departures Level. CBP officials at Pearson advise applicants to arrive early unless they do not mind waiting several hours.
If you live in the Buffalo/Niagara region, I-192 waivers are accepted at the Peace Bridge Port of Entry Monday – Thursday from 5:00 p.m. until 9:00 p.m. They are also accepted at the Rainbow Bridge Port of Entry on Monday - Thursday from 9:00 a.m. to 3:00 p.m., and on Sundays between 5:00 p.m. and 9:00 p.m. during the months of October – May only. Forms I-192 may also be filed at the Lewiston-Queenston Port of Entry on Monday – Thursday from 2:00 p.m. to 9:00 p.m.
In addition to completing Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, Canadian citizens are also required to submit specific supporting documents together with Form I-192. These supporting documents are verified by CBP officers at the filing location. If all required documents are not present, then the CBP officers will most likely refuse to accept your application, or accept it but refuse to forward it to the ARO until all required documents are submitted. CBP created a Form I-192 application checkist years ago. Since requirements continue to change, it is recommended that applicants check with their attorneys to determine if the list has changed or if additional documents are required before filing.
If the Form I-192 has been completed properly and all supporting documents are present, then the CBP officials at the filing location will process the application by forwarding the package to the ARO for adjudication.
The Admissibility Review Office ("ARO")
The ARO, which is located in the Washington, DC area, is part of CBP. Since 2005, it has been the sole agency charged with adjudicating I-192 waiver applications [as well as all waiver applications pursuant to INA § 212(d)(3), including those submitted at Consulates abroad – see below]. The DHS created the ARO in an effort to achieve consistency in the adjudication of nonimmigrant waivers pursuant to INA § 212(d)(3). See CBP Memorandum, "Admissibility Review Office," CBP Assistant Commissioner, Office of Field Operations, Jayson P. Ahern (March 22, 2005).
The result is one office within the DHS that can specialize and focus solely on the application of INA § 212(d)(3). While the ARO has the discretion to grant or deny nonimmigrant waiver applications, it must adjudicate these applications pursuant to the legal guidelines and framework set forth by the Board of Immigration Appeals (“BIA”) in its landmark case: Matter of Hranka. In that case, the BIA set forth three (3) factors that must be weighed together in deciding whether or not to grant a waiver application under INA § 212(d)(3):
- the risk of harm to society if the applicant is admitted;
- the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any; and
- the nature of the applicant’s reasons for wishing to enter the United States.
Matter of Hranka, 16 I. & N. Dec. 491, 492 (BIA 1978).
In Hranka, the BIA held that the risk of harm posed by a young Canadian woman who had one prior incident of prostitution two (2) years earlier was “very small.” The BIA noted that the applicant had no other criminal or immigration law violations and found that the applicant had “substantial reason for desiring a waiver” in that she had many close relatives living in the U.S. (uncles and cousins). The BIA also held that there is no requirement that the applicant’s reasons for wishing to enter the U.S. be “compelling.” Based upon these factors, the BIA concluded that a nonimmigrant waiver should be granted. Id. See Approvals to read about successful nonimmigrant waiver applications.
The decision of the BIA in Matter of Hranka has been controlling the adjudication of nonimmigrant waivers pursuant to INA § 212(d)(3) for over 30 years.
In order to present the strongest waiver application on behalf of our clients, our office puts together a comprehensive application package, including a legal brief that applies the specific law of the Hranka case to the facts present in each applicant’s case. Together with the brief, we prepare and package the application forms; the required supporting documents; and additional evidence that we deem necessary to submit. Once the package is prepared, we send it to our client via courier with detailed instructions on submitting the package in person at the nearest (or most convenient) CBP office. Once the application package has been filed, we begin to monitor the application at the ARO. If there is no decision received within 90 days of submission, we begin to contact the ARO on a regular basis until a decision is issued.
Form I-192 waiver application processing times will vary from case to case. While the ARO goal is to complete the adjudication of each application within 4-6 months of the filing date, there are many cases in which the processing period is much longer. In many cases, the delay is not at the ARO, but with another federal agency responding to the necessary background and security checks. The good news is that the first waiver application usually involves the longest processing time. Subsequent Form I-192 waiver applications are usually processed much quicker – generally within 3-4 months.
By regulation, nonimmigrant waivers pursuant to INA § 212(d)(3) may only be issued for a maximum period of 5 years at a time. See 8 C.F.R. § 212.4(c)(3)(iii). Some Canadians find this confusing, as the U.S. used to offer “lifetime waivers” – also known as Canadian Border Crossing Cards (“CBCC”). The U.S. did away with CBCCs and no longer issues lifetime waivers, however, those that were issued prior to the change in U.S. law remain valid so long as no new grounds of inadmissibility have arisen since the issuance of the CBCC.
First time waiver applicants are not likely to receive a validity period of 5 years. Rather, the first nonimmigrant waiver issued will usually be for a period of one (1) year. Some first time waivers are only issued for six (6) months. Others are issued for 2-3 year periods. On average though, most first time applicants receive a nonimmigrant waiver for a period of one (1) year.
Upon completing the adjudication process, the ARO will send its decision in writing directly to the applicant, with a copy to the attorney of record. If the waiver application is approved, the ARO issues the waiver on a Form I-94. The Form I-94 will state the validity period. It will also state the permissible reasons that the waiver recipient may be entering the U.S. for. In most cases, it will say “business and pleasure” but in some cases the activities will be restricted to “business only” or “pleasure only.”
If the waiver application is denied, the ARO will issue a decision explaining the reasons for the denial. The notice of denial will also advise the applicant of the right to appeal the AAO decision to the BIA within 15 days of the mailing of the denial decision. See 8 C.F.R. § 212.4(b). The denied waiver applicant also has the option to renew the waiver request before an Immigration Judge (“IJ”) if s/he is referred to the Executive Office for Immigration Review for removal proceedings and, if the IJ denies the application, that decision may also be appealed to the BIA. See 8 C.F.R. § 212.4(b).
INA § 212(d)(3)(A)(i) Waivers – Applying for a Nonimmigrant Waiver at a U.S. Consulate
All foreign nationals who require a visa to enter the U.S. must apply for such visa at a U.S. Consulate abroad. If the nonimmigrant visa applicant also requires a nonimmigrant waiver, the waiver application is also submitted at the U.S. Consulate with jurisdiction over the nonimmigrant visa application.
Consular officers are employees of the U.S. Department of State (“DOS”), not the DHS. While Consular officers have jurisdiction to grant or deny visa applications, as well as the discretion to recommend or reject nonimmigrant waiver applications, the DOS does not have jurisdiction to adjudicate nonimmigrant waiver applications. As previously noted, all nonimmigrant waiver applications are adjudicated by the ARO.
The Consular officer still plays an important role in the nonimmigrant waiver process. To begin with, the Consular officer must first determine whether the nonimmigrant visa applicant qualifies for the particular type of nonimmigrant visa that s/he is applying for. If the nonimmigrant visa applicant does not qualify for the visa, then the nonimmigrant waiver stage is not even reached – the nonimmigrant waiver application is not even accepted and the applicant is sent home.
If the applicant qualifies for a nonimmigrant visa but is inadmissible to the U.S. for other reasons (such as a criminal conviction or health reasons), s/he will be instructed by the Consular officer that s/he cannot be issued a visa unless s/he first obtains a nonimmigrant waiver. In some cases, the applicant is instructed to return to the Consulate in person with a waiver application package, while others are instructed to mail the application back to the Consulate. Upon identifying an applicable ground of inadmissibility, our office will prepare a nonimmigrant waiver application package in advance of the nonimmigrant visa appointment so that our clients can submit the waiver application package upon the Consular finding of inadmissibility, which will cut down on the length of time that the applicant must wait for a decision.
One of the main differences in applying for a nonimmigrant waiver at a U.S. Consulate as opposed to at a port of entry is that there is no required form or filing fee when the nonimmigrant waiver application is submitted at the U.S. Consulate abroad. See 8 C.F.R. § 212.4(a)(1). While certain information is required to properly adjudicate a nonimmigrant waiver application, there are no required supporting documents, although there are certainly documents that it is advisable to submit.
Upon receipt of a nonimmigrant waiver application package, Consular officers review all application materials and then determine whether or not to recommend the waiver application to the ARO for approval. See 22 C.F.R. § 40.301.
The DOS Foreign Affairs Manual (“FAM”) states:
The Congress, in enacting INA § 212(d)(3)(A), conferred upon the Secretary of State and consular officers the important discretionary function of recommending waivers of nonimmigrant visa ineligibilities to the Department of Homeland Security for approval.
9 FAM 40.301 N1. Consular officers are further instructed:
You should not hesitate to exercise this authority when the alien is entitled to seek waiver relief and is otherwise qualified for a visa, and when the granting of a waiver is not contrary to U.S. interests.
9 FAM 40.301 N1. Before a Consular officer can recommend a nonimmigrant waiver application for approval, certain basic conditions must first be met. Specifically:
- The applicant is not inadmissible under INA § 214(b) [an intending immigrant];
- The applicant is not inadmissible under INA § 212(a)(3)(A)(i)(I), INA § 212(a)(3)(A)(ii), INA § 212(a)(3)(A)(iii), INA § 212(a)(3)(C), or INA § 212(a)(3)(E) [security-related grounds of inadmissibility;
- The applicant is not seeking a waiver of nonimmigrants documentary requirements of INA § 212(a)(7)(B), which may only be waived under the provisions of INA § 212(d)(4); and
- The applicant is, otherwise, qualified for the nonimmigrant visa he or she is seeking.
9 FAM 40.301 N2. If these requirements are met, the Consular officer must then determine whether or not to recommend the nonimmigrant waiver application to the ARO for approval based upon the specific facts of the case.
Consular officers are instructed that:
Eligibility for a waiver is not conditioned on having some qualifying family relationship, or the passage of some specified amount of time since the commission of the offense, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment are essential, you may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.
9 FAM 40.301 N3a.
Consular officers are also advised to consider three (3) specific factors when deciding whether to recommend a waiver. These factors, which can be found at 9 FAM 40.301 N3b, mirror the three (3) factors set forth by the BIA in Matter of Hranka.
If the Consular officer is satisfied with the waiver application and has been persuaded to recommend it for approval, s/he will forward the waiver application together with a favorable recommendation to the ARO in the U.S. Consulates communicate directly with the ARO electronically, which significantly reduces processing times. 9 FAM 40.301 PN1. Nonimmigrant waiver applicants who apply at a U.S. Consulate usually only wait approximately 3-4 weeks for a response from the ARO.
If the Consular officer does not want to recommend the waiver application for approval and the applicant wishes to pursue the application, the applicant can request that the Consular officer submit the case for an advisory opinion. 9 FAM 40.301 N6.1(b). The denied applicant also has the option to accept the officer’s decision not to recommend the waiver application and to re-apply at a later date. There is no limit on the number of nonimmigrant waiver applications that can be made at the Consulate (or the ARO).
Whatever its decision, the ARO will notify the Consulate electronically. The Consulate will then notify the applicant of the decision. If approved, the nonimmigrant visa will be issued. There is no physical form issued as documentation that the nonimmigrant waiver has been issued. Rather, the nonimmigrant visa should contain a notation that a nonimmigrant waiver has been issued pursuant to INA § 212(d)(3).
As mentioned above, applicants who are refused a nonimmigrant waiver may re-apply at a later date. Before re-applying, however, it will be important to find out why the initial application was denied. This will sometimes be explained by the Consulate but other times it will not be offered, which is when the applicant or his/her attorney will need to make an inquiry with the Consulate. You can also submit a request pursuant to the Freedom of Information Act (“FOIA”) directly to CBP and specifically request ARO records. Only after learning the specific reasons for the initial denial will you, or your lawyer, be in a better position to prepare a waiver application that can overcome the basis of the prior refusal.
In support of a nonimmigrant waiver application submitted at a U.S. Consulate, our office puts together a comprehensive waiver application package that addresses both the Hranka factors (which the ARO must follow), as well as the factors that the Consular officers are required to consider under the FAM. These factors are addressed in a legal brief, which is accompanied by a formal request for a favorable recommendation to the ARO.
Our services also include the preparation of the accompanying nonimmigrant visa application and, perhaps most importantly, an interview preparation session with counsel so that the applicant understands the process, knows what t expect, and is prepared to make his/her best case for recommendation and approval to the Consular officer.
Posted by CISLAWOFFICE at 1:57 PM
Thursday, April 19, 2018
Crimes Involving Moral Turpitude January 2013 § N.7 Crimes Involving Moral Turpitude (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 4, including Appendix 4-A, Annotations and Chart of Crimes Involving Moral Turpitude under California Law) Overview Box A. Is the Offense a Crime Involving Moral Turpitude (“CIMT”)? B. Does the Conviction make the Defendant Deportable under the CIMT Ground? C. Does the Conviction make the Defendant Inadmissible under the CIMT Ground? Appendix 7-I Legal Summaries to Give to the Defendant Appendix 7-II Cheat Sheet: Rules for When a CIMT is an Inadmissible or Deportable Offense Overview: Crimes Involving Moral Turpitude. Because many offenses come within the immigration category of crimes involving moral turpitude (“CIMT”), criminal defense counsel must always keep this category in mind. There are two steps to analyzing CIMTs. First, determine whether an offense is or might be a CIMT. Generally this requires intent to cause great bodily harm, defraud, or permanently deprive an owner of property, or in some cases to act with lewd intent or recklessness. See Part A below. Second, if the offense is or may be a CIMT, see if according to the immigration statute formulae for CIMTs – based on number of convictions, when committed, sentence - the conviction would actually make this defendant inadmissible and/or deportable under the CIMT grounds. In some cases a single CIMT conviction will not make a noncitizen inadmissible and/or deportable. See Parts B and C below for these rules. An administrative decision, Matter of Silva-Trevino, has made it impossible to tell whether certain offenses will be held CIMT’s. Often the best course is to conservatively assume that a borderline offense is a CIMT, do the analysis to see if it will make the noncitizen defendant deportable and/or inadmissible, and warn the defendant accordingly. A waiver or some other defense strategy might be available. Hopefully the Ninth Circuit will overturn Silva-Trevino. As always, remember that a single conviction might come within multiple immigration categories. For example, a CIMT offense might or might not also be an aggravated felony. Look up the section in the California Quick Reference Chart to check all categories. 111 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 A. Is the Offense a Crime Involving Moral Turpitude? (including Matter of Silva-Trevino) A crime involving moral turpitude (“CIMT”) has been vaguely defined as a depraved or immoral act, or a violation of the basic duties owed to fellow man, or recently as a “reprehensible act” with a mens rea of at least recklessness. Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). Traditionally a CIMT involves intent to commit fraud, commit theft with intent to permanently deprive the owner, or inflict great bodily harm, as well as some reckless or malicious offenses and some offenses with lewd intent. For criminal defenders, the first step to see if an offense is a CIMT is to consult the California Quick Reference Chart. However, because this area of the law is in flux, you also must be aware of the points in this Note. Note also that whether a particular offense constitutes a CIMT for immigration purposes is determined by federal immigration caselaw, not state rulings for purposes of witness impeachment or license limitations. How Matter of Silva-Trevino makes it harder to guarantee a conviction will not be a CIMT. To make a long story short,1 currently it can be hard to determine if a conviction will be held to be a CIMT because of the administrative case, Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Under Silva-Trevino, in some cases an immigration judge will be able to go beyond the record of conviction and hold a hearing on the facts about the defendant’s conduct, to see if the defendant committed a crime involving moral turpitude. The judge can take testimony from the defendant, review police reports, etc., and may even consider facts not required to prove an element of the offense. Therefore, while counsel should strive to protect the defendant from a CIMT conviction by choosing the right plea or controlling the record of conviction, as long as Silva-Trevino remains in effect, the defendant might end up with a CIMT conviction. How to protect a client despite Silva-Trevino. There are two defense strategies that will protect a client from a CIMT conviction despite Silva-Trevino. If you succeed in negotiating a disposition according to these strategies, give the client a copy of the legal summary that appears at Appendix I following this Note. 1. With a divisible statute, plead specifically to conduct that is not a CIMT A “divisible statute” reaches conduct that is and is not a CIMT. It is clear that if the record of conviction specifically identifies elements that do not involve CIMT, the immigration judge may not go beyond that and may not conduct a fact-based inquiry under Silva-Trevino. 2 Thus for CIMT purposes, instead of creating a vague record of conviction, where possible one should plead to a specific offense that does not involve moral turpitude. Example: Calif. Veh. Code § 10851 is divisible as a CIMT, because it covers both auto theft with intent to permanently deprive the owner of property (a CIMT), and joyriding 1 For further discussion of Silva-Trevino see Brady et al, Defending Immigrants in the Ninth Circuit (2011, www.ilrc.org) or see Tooby, Kesselbrenner, “Living with Silva-Trevino” at www.nortontooby.com. 2 Matter of Alfaro, 25 I&N Dec. 417 (BIA 2011); Matter of Silva-Trevino, 24 I&N Dec. 687, 699 (AG 2008). 112 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 with temporary intent (not a CIMT). If the defendant specifically pleads to taking with temporary intent, then the conviction is not a CIMT. But if the record is vague between temporary and permanent taking, the immigration judge may conduct to determine the intent. She might take testimony from the immigrant, examine the probation report, etc. Another commonly charged divisible statute is P.C. § 243(e). The offense is a CIMT if it involved use of actual violent force, but not if it involved offensive touching or other de minimus force. A specific plea to the latter prevents the offense from being a CIMT, even under Silva-Trevino. 2. Plead to an offense that requires intent of negligence or less An offense involving negligence or less is not a CIMT. For example, it has long been held that simple drunk driving, even with injury or as a repeat offense, is not a CIMT.3 See other offenses in the Chart that also should not be held to involve moral turpitude under any circumstances. Caveat: Because there are reports that some immigration judges may blur this rule under Silva-Trevino, a conviction for drunk driving coupled with a conviction for driving on a suspended license in the same incident might be held to be a CIMT, if the immigration judge were to (wrongly) combine the two offenses. The adverse Silva-Trevino rule only applies to CIMT determinations. If the immigration court does conduct a broad factual inquiry under Silva-Trevino, it may use the information only to determine if the offense involves moral turpitude, and not to determine if the conviction comes within other grounds of inadmissibility or deportability. 4 Example: Mike pleads guilty to P.C. § 243(e), spousal battery. If this offense is committed with “offensive touching,” it is neither a CIMT nor a deportable “crime of domestic violence.” If instead it is committed with actual violence, it will be held a CIMT and a deportable crime of domestic violence.5 Mike’s defender creates a vague record of conviction in which Mike pleads to the language of the statute, which does not establish whether the offense involved actual violence or an offensive touching. Under Silva-Trevino, for CIMT inquiries only, an immigration judge may make a factual inquiry into Mike’s conduct. Based on this inquiry she might find that real violence was involved and the offense is a CIMT. The judge may not use this information to hold that the offense is a deportable crime of domestic violence. Here the regular evidentiary rules known as the categorical approach apply, and the judge must base her decision only upon the reviewable record of conviction. Since the vague record does not establish that the offense involved actual 3 Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001). 4 “This opinion does not, of course, extend beyond the moral turpitude issue--an issue that justifies a departure from the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that ‘stands apart from the elements of the [underlying criminal] offense.’” Matter of Silva-Trevino, 24 I&N Dec. at 699. 5 See discussion of Calif. P.C. § 243(e) and Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006), in § N. 9 Domestic Violence. A crime of domestic violence is defined at 8 USC § 1227(a)(2)(E)(i). 113 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 violence, she must find that Mike is not deportable under the domestic violence ground. Note, however, that best practice is to identify “minimum touching” rather than leave the record vague. Not only will it avoid a CIMT, but some immigration judges might make a mistake and apply the Silva-Trevino rule outside of CIMTs. Even if the offense is a CIMT it may not be an immigration catastrophe, depending on the individual case! Many immigrants have survived conviction of one or more CIMTs. In some cases, conviction of a single CIMT will not cause the person to be deportable and/or inadmissible. See Parts B and C. In other cases, a discretionary pardon (“waiver”) for CIMT might be available. Finally, it is quite possible that the Ninth Circuit will overturn Silva-Trevino. B. The CIMT Deportation Ground, 8 USC § 1227(a)(2)(A)(i), (ii) Who needs to avoid a deportable conviction? Permanent residents, refugees, F-1 students and other noncitizens with lawful status want to avoid being deportable, because they could lose their status. In contrast, most undocumented persons are not harmed by a deportable (as opposed to inadmissible) conviction, with these exceptions: persons who will apply for any form of non-LPR cancellation, or who have or will apply for Temporary Protected Status, want to avoid a deportable conviction, because it is a bar to such status. See discussion in Note 1: Overview. To make a noncitizen deportable under the CIMT ground, the conviction must come within at least one of the following two categories. 1. Conviction of two CIMTs since admission A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission to the U.S. on any visa, or after adjustment of status. Example: Stan was admitted to the U.S. in 1991. He was convicted of petty theft in 2002 and fraud in 2012. He is deportable for conviction of two CIMTs since admission. There are two very limited exceptions, for convictions that are “purely political” or that arise in a “single scheme of criminal misconduct” (often interpreted to mean that the charges had to arise from the very same incident). 2. One conviction of a CIMT, committed within five years of admission, that carries a maximum sentence of one year or more A noncitizen is deportable for one conviction of a crime involving moral turpitude (“CIMT”) if she committed the offense within five years of her last “admission” to the United States, and if the offense carries a potential sentence of one year. 114 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 Avoid Deportability for CIMT by Pleading to a Six-Month Misdemeanor. A single CIMT misdemeanor with a maximum possible sentence of six months will not trigger the CIMT deportation ground, regardless of when the offense was committed. Unfortunately, a CIMT misdemeanor that carries a maximum possible sentence of one year will trigger the CIMT deportation ground if the offense was committed within five years of admission. This includes “wobbler” misdemeanors. Practice Tip: Plead to attempt in order to reduce the maximum possible sentence. For example, attempted grand theft, when designated as or reduced to a misdemeanor, has a potential sentence of six months. Immigration will accept a sentence reduction under P.C. § 17, even if the motion is filed after removal proceedings are begun.6 Plead to an Offense Committed more than Five Years Since the “Date of Admission.” Consider two situations: a person who was admitted to the U.S. with any kind of visa, and a person who entered without inspection, i.e. surreptitiously crossed the border. Generally, if a noncitizen was admitted into the U.S. under any lawful visa – with a green card, on a tourist visa, with a border crossing card, or other status – that is the admission date that starts the five-year clock. This is true even if the person fell out of lawful status after the admission. 7 Example: Mabel was admitted to the U.S. as a tourist in 2003. Her permitted time ran out and she lived here unlawfully for a few years. She married a U.S. citizen and through him “adjusted status” to become a lawful permanent resident in 2007. She was convicted of a CIMT that has a potential sentence of a year, for an offense she committed in 2010. Is she deportable under the CIMT ground? No, she is not. To avoid being deportable for CIMT, Mabel needs five years between her admission date and the date she committed the offense. Her admission was in 2003, and she committed the CIMT in 2010. The fact that she was out of lawful status for some time and then adjusted status does not affect this.8 Note: If the person took a trip outside the U.S. for more than six months, or left the U.S. after being convicted, the rules are not yet clear. Consult an immigration expert. 6 La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). 7 Until recently, there was conflict between federal courts and the Board of Immigration Appeals as to what date is the date of admission for this purpose. Fortunately, the Board of Immigration clarified this and adopted the federal court rule, to the benefit of the immigrant, in Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011). For further discussion see Brady, “Practice Advisory: Immigration Authorities Clarify When One Moral Turpitude Conviction Will Make a Lawful Permanent Resident Deportable,” at www.ilrc.org/crimes. 8 See Matter of Alyazji, supra. 115 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 In contrast, if the person initially entered without inspection, e.g. surreptitiously waded across the Rio Grande River, and later “adjusted status” to become a lawful permanent resident, the admission date is the date he or she was granted lawful permanent residency. 9 Example: Bernard entered without inspection in 1999. In 2003 he adjusted status to lawful permanent residence.10 He was convicted of a CIMT which he had committed in 2008, and which had a potential sentence of a year or more. Bernard is deportable. His “date of admission” is his 2003 adjustment of status date, because he has no prior admission. He committed the CIMT in 2007, within five years after that date. Practice Tip: Avoid deportability for one CIMT by working with the five years. If there were ongoing offenses, attempt to plead to an offense that happened later in time, after the five years elapsed. For example, if Bernard had committed an ongoing fraud offense, try to plead to an incident that happened outside of the five-year period, in 2008 or later. C. The CIMT Ground of Inadmissibility, 8 USC § 1182(a)(2)(A) Who wants to avoid being inadmissible? An undocumented person who wants to apply for relief will want to avoid being inadmissible, because it is a bar to relief. A deportable permanent resident would like to avoid being inadmissible because that could be a bar to relief from removal. An asylee or refugee wants to be admissible in order to apply for LPR status. A permanent resident who is inadmissible for crimes and travel outside the U.S. can lose their status and be barred from returning. In some cases, a waiver of inadmissibility will be available for these persons. A noncitizen is inadmissible who is convicted of just one crime involving moral turpitude, whether before or after admission. There are two helpful exceptions to the rule. Petty offense exception.11 If a noncitizen (a) has committed only one moral turpitude offense ever, (b) the offense carries a potential sentence of a year or less, and (c) the “sentence imposed” was less than six months, the person is automatically not inadmissible under the CIMT ground. 9 Ibid, and see Practice Advisory, supra, for more information. 10 How could that happen? It is harder because Bernard entered without inspection. He could have married a U.S. citizen and had a visa petition submitted in 2001 or earlier, so he could adjust specially under INA § 245(i). Or he may have qualified through asylum, cancellation, or other special application. 11 8 USC § 1182(a)(2)(A)(ii)(II). 116 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 Example: Freia is convicted of felony grand theft, the only CIMT offense she’s ever committed. (She also has been convicted of drunk driving, but as a non-CIMT that does not affect this analysis.) The judge gives her three years probation, suspends imposition of sentence, and orders her to spend one month in jail as a condition of probation. She is released after 15 days. The grand theft is reduced to a misdemeanor under PC § 17.12 Freia comes within the petty offense exception. She has committed only one CIMT, it has a potential sentence of a year or less, and the sentence imposed was one month. (For more information on sentences, see § N.4 Sentencing.) Youthful offender exception. 13 This comes up more rarely, but can be useful for young adults. A disposition in juvenile delinquency proceedings is not a conviction and has no relevance to moral turpitude determinations. But persons who were convicted as adults for acts they committed while under the age of 18 can benefit from the youthful offender exception. A noncitizen who committed only one CIMT ever, and while under the age of 18, ceases to be inadmissible as soon as five years have passed since the conviction or the release from resulting imprisonment. Example: Raoul was convicted as an adult for felony assault with a deadly weapon, based on an incident that took place when he was 17. He was sentenced to eight months and was released from imprisonment when he was 19 years old. He now is 25 years old. This conviction does not make him inadmissible for moral turpitude. Inadmissible for making a formal admission of a crime involving moral turpitude. This ground does not often come up in practice. A noncitizen who makes a formal admission to officials of all of the elements of a CIMT is inadmissible even if there is no conviction. This does not apply if the case was brought to criminal court but resolved in a disposition that is less than a conviction (e.g., charges dropped, conviction vacated).14 Counsel should avoid having clients formally admit to offenses that are not charged with. Resource: If you wish to check other consequences of a CIMT besides being a deportable or inadmissible conviction – e.g. when a CIMT conviction triggers mandatory detention or is a bar to cancellation -- see “All Those Rules About Crimes Involving Moral Turpitude” at www.ilrc.org/crimes. 12 Reducing a felony to a misdemeanor will give the offense a maximum possible sentence of one year for purposes of the petty offense exception. La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). 13 8 USC § 1182(a)(2)(A)(ii)(I). 14 See, e.g., Matter of CYC, 3 I&N Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission) and discussion in Defending Immigrants in the Ninth Circuit, § 4.4 (www.ilrc.org). 117 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 Appendix 7 - I LEGAL SUMMARIES TO HAND TO THE DEFENDANT The majority of noncitizens are unrepresented in removal proceedings. Further, many immigration defense attorneys and immigration judges are not aware of all defenses relating to crimes, and they might not recognize the defense you have created. This paper may be the only chance for the defendant to benefit from your work. Please give a copy of the applicable paragraph/s to the Defendant, with instructions to present it to an immigration defense attorney or the Immigration Judge. Please include a copy of any official documents (e.g. plea form) that will support the defendant’s argument. Please give or mail a second copy to the defendant’s immigration attorney, friend, or relative, or mail it to the defendant’s home address. Authorities at the immigration detention center may confiscate the defendant’s documents. This will provide a back-up copy accessible to the defendant. * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. If the record of conviction specifically identifies elements of an offense that do not involve moral turpitude, the conviction is not of a crime involving moral turpitude and the immigration judge may not go beyond the record to conduct a fact-based inquiry under SilvaTrevino. See Matter of Silva-Trevino, 24 I&N Dec. 687, 699 (AG 2008); Matter of AhortalejoGuzman, 25 I&N Dec. 465 (BIA 2011) (evidence outside of the record of conviction may not be considered where the conviction record itself demonstrates whether the noncitizen was convicted of engaging in conduct that constitutes a crime involving moral turpitude). * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. A crime with a mens rea of negligence or less does not qualify as a crime involving moral turpitude. See Matter of Silva-Trevino, 24 I&N Dec. 687, 697 (AG 2008) (a crime involving moral turpitude requires “both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.”). 118 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. Matter of Silva-Trevino permits an immigration judge to go beyond the record of conviction only to determine if the offense of conviction is a crime involving moral turpitude, and not to determine if it is a crime of violence or other category. “This opinion does not, of course, extend beyond the moral turpitude issue--an issue that justifies a departure from the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that ‘stands apart from the elements of the [underlying criminal] offense.’” Matter of Silva-Trevino, 24 I&N Dec. 687, 699 (AG 2008). * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. When a California felony is designated or reduced to a misdemeanor, the offense has a potential sentence of one year for immigration purposes and can come within the petty offense exception to the moral turpitude inadmissibility ground. This is true regardless of when the offense is reduced, including after initiation of removal proceedings. La Farga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). * * * * * * * * This paper was given to me by my attorney and pertains to possible legal defense. I request that you do not take this paper away from me. I do not admit alienage by submitting this paper. If I am charged with being an alien, I submit the following statement. Conviction of a crime involving moral turpitude will cause deportability if the offense has a potential sentence of a year or more and was committed within five years of the “date of admission.” Generally if a noncitizen was admitted into the U.S. under any status, that date is the admission date that begins the five years. This is true even if the person fell out of lawful status after the admission and/or later adjusted status to permanent residence. Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) (overruling Matter of Shanu, 23 I&N Dec. 754, 759 (BIA 2005). 119 Immigrant Legal Resource Center, www.ilrc.org § N.7 Crimes Involving Moral Turpitude January 2013 APPENDIX 7 ‐ II CHEAT SHEET – DOES THIS CONVICTION MAKE THIS INDIVIDUAL DEPORTABLE OR INADMISSIBLE UNDER THE MORAL TURPITUDE GROUNDS? I. DEPORTABLE FOR MORAL TURPITUDE, 8 USC § 1227(a)(2)(A) Deportable for One Conviction of a Crime Involving Moral Turpitude (“CIMT”), if: a) Convicted b) Of one CIMT c) That has a potential sentence of one year or more d) And was committed within five years after date of admission To prevent deportability for a single CIMT: a) Avoid a “conviction” by getting pre‐plea diversion or treatment in juvenile proceedings; or b) Plead to an offense that is not a CIMT; or c) Avoid a potential one‐year sentence by pleading to a misdo with a six‐month maximum sentence. Or in California plead to attempt to commit either a one‐year misdo or a felony that can be reduced to a misdo, for a maximum possible sentence of six months; or d) Plead to an incident that happened more than five years after the “date of admission.” This is usually the date the person was first admitted into the U.S. with any kind of visa or card. Or, if the person entered the U.S. without inspection – i.e., never was admitted on any visa – it is the date that the person became a permanent resident by “adjusting status” within the U.S. If the person left the U.S. after becoming inadmissible for crimes, or for more than six months, get more advice. Deportable for Conviction of Two or More CIMTs After Admission a) Both convictions must be after the person was admitted to the U.S. in some status, or adjusted status b) The convictions may not spring from the same incident (“single scheme”) II. INADMISSIBLE FOR MORAL TURPITUDE, 8 USC 1182(a)(2)(A) Inadmissible for One or More Convictions of a CIMT Petty Offense Exception automatically means the person is not inadmissible for CIMT. To qualify for the exception: a) Defendant must have committed only one CIMT ever b) The offense must have a potential sentence of one year or less. Here a one‐year misdo, or a felony wobbled down to a misdemeanor, will qualify for the exception. c) Sentence imposed is six months or less. For example, suspended imposition of sentence, three years probation, six months jail ordered as a condition of probation will qualify. Youthful Offender Exception applies rarely, but benefits youth who were convicted as adults. Noncitizen is not inadmissible for CIMT if he or she committed only one CIMT ever, while under the age of 18, and the conviction or resulting imprisonment occurred at least five years ago. 120
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