quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 Plead to attempt in order to lower the potential sentence to under one year. Attempt does not prevent an offense from being classified as a crime involving moral turpitude. In general, attempt takes on the character of the principal offense for immigration purposes so that, e.g., attempt to commit theft is a crime involving moral turpitude. In fact, attempt is inconsistent with reckless or negligent intent, and in some cases might make it more likely for an offense to be held a CMT. However, attempt does offer a way to avoid becoming deportable for conviction of one crime involving moral turpitude for which the potential sentence is one year or more. For most offenses, attempt carries half the potential sentence of the principal offense, under P.C. § 644(b). Attempt to commit a one-year misdemeanor, or a felony wobbler that is reduced to a misdemeanor, carries a potential sentence of six months. By using creative sentencing strategies, e.g. waiving credit for time served, counsel may be able to meet the prosecution’s demands for sentence while still pleading to attempt. See § N.4 Sentence Solutions, supra. Do not plead to attempt to commit an offense involving fraud or deceit where there was a potential loss to the victim or government of $10,000 or more. This might make it more likely for the offense to be held an aggravated felony. See Note: Burglary, Fraud. 2. Conviction of two crimes involving moral turpitude after admission, that are not part of a single scheme A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission, unless the convictions are “purely political” or arise in a “single scheme of criminal misconduct” (often interpreted to exclude almost anything but two charges from the same incident). Example: Stan was admitted to the U.S. in 1998. He was convicted of assault with a deadly weapon in 2002 and passing a bad check in 2006. Regardless of the potential or actual imposed sentences, he is deportable for conviction of two moral turpitude offenses since his admission. C. Ground of Inadmissibility, 8 USC § 1182(a)(2)(A) A noncitizen is inadmissible who is convicted of one crime involving moral turpitude, whether before or after admission. There are two important exceptions to the rule. Petty offense exception. 101 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 then falls out of lawful status for some years, and then adjusts status, the Ninth Circuit has not held as to whether the adjustment re-starts the five year period. See discussion in Defending Immigrants in the Ninth Circuit, § 4.5. 101 8 USC § 1182(a)(2)(A)(ii)(II). N-68 Immigrant Legal Resource Center
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