quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
(Note that in this example Mike might not be deportable at all, despite conviction of a
CMT. As is discussed in Part B, a single conviction of a CMT causes deportability only
if it has a potential sentence of a year or more and was committed within five years after
admission. If Mike committed this offense more than five years after admission, he is not
deportable for a CMT. He also is not deportable for a crime of domestic violence – so in
this case, he wins. However, by far the best option would have been for his defender to
bargain for Mike to plead specifically to an offensive touching.)
B. Deportation Ground, 8 USC § 1227(a)(2)(A)(i), (ii)
1. Deportable for one conviction of a CMT, 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
(“CMT”) 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.
A felony/misdemeanor that is reduced to a misdemeanor under PC § 17 retains a potential
one-year sentence and can be a basis for deportability. If counsel can bargain to a six-month
misdemeanor, or to attempt of a wobbler that is then reduced to a misdemeanor, the offense will
have only a six-month maximum penalty. See § N.4 Sentence Solutions on how to provide for
the maximum possible jail time, if that is required, even under a reduced potential sentence.
Example: Marta was last admitted to the United States in 2000. In 2003 she committed a
theft with an intent to permanently deprive, her first CMT. If she is convicted of
misdemeanor grand theft and the record of conviction and facts outside of the record show
that she had the intent to permanently deprive she will be deportable: she’ll have been
convicted of a CMT committed within five years of her last admission that has a potential
sentence of a year. If she is convicted of petty theft or attempted misdemeanor grand theft
she will not be deportable, because both have a maximum possible sentence of six months. If
Marta had waited until 2006 to commit the offense she would not be deportable regardless of
potential sentence, because it would be outside the five years.
Depending on individual circumstances, the “admission” that starts the five years might
be the person’s first lawful entry into the United States, the date he or she adjusted status to
permanent residency, or a return from a subsequent trip outside the country. See discussion in
Chapter 1, § 1.3(B), Defending Immigrants in the Ninth Circuit. 100
100 To summarize: if the person enters the U.S. without inspection (e.g., surreptitiously crosses the Rio Grande from
Mexico) and later goes through a process inside the U.S. to become a permanent resident (adjustment of status), the
adjustment of status is the admission that starts the five years. Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir.
2001); Matter of Rosas-Ramirez, 22 I&N Dec. 616 (BIA 1999). If instead the person is admitted to the U.S., for
example on a student visa, and stays in lawful status until they day she adjusts status to permanent residency, the
date of her original admission is the start of the five years; the clock does not re-start at adjustment. Shivaraman v.
Ashcroft, 360 F.3d 1142 (9 th Cir. 2004).. Finally, if a noncitizen is admitted to the U.S., for example as a tourist, and
Immigrant Legal Resource Center N-67