quick reference chart and annotations for determining immigration ...

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Aggravated Felony CMT DRUG DV CHILDREN FIREARMS Aggravated Felony, defined at 8 U.S.C. § 1101(a)(43)(A)-(U). The aggravated felony definition includes twenty-one provisions that describe hundreds of offenses, which need not be aggravated or felonious. Aggravated felons under immigration law are ineligible to apply for most forms of discretionary relief from deportation including asylum, voluntary departure, and cancellation of removal. Conviction of an aggravated felony triggers mandatory detention without bond pending deportation. A conviction for illegal reentry after deportation or removal, in violation of 8 U.S.C. § 1326, will carry a significantly higher federal prison term if the defendant was previously convicted of an aggravated felony. See 8 U.S.C. § 1326(b)(2). See Note: Aggravated Felony Crime Involving Moral Turpitude (CMT). A crime involves moral turpitude if it involves fraud, or it comes within a vague definition of involving evil intent or deviating from accepted rules of contemporary morality. Here, moral turpitude is defined according to federal immigration case law, and not, e.g., state cases on witness credibility or disbarment. For CMT determinations, see comments on individual offenses in this chart. A noncitizen is deportable who (a) is convicted of two CMT’s, which are not part of a “single scheme of criminal misconduct,” at any time after being admitted to the U.S. or (b) is convicted of one CMT, committed within five years of admission to the U.S., that carries a potential sentence of at least one year. 8 USC § 1227(a)(2)(A)(ii) and (i). A noncitizen is inadmissible if convicted of one CMT, unless he or she qualifies for the petty theft or youthful offender exception. To qualify for the petty theft exception, the person must have committed only one CMT, which has a potential sentence of not more than a year, and a sentence of not more than six months must have been imposed. To qualify for the youthful offender exception, the person must have committed only one CMT. 8 USC § 1182(a)(2)(A)(ii)(II) and (I). See Note: CMT. Controlled Substance offenses. A noncitizen is deportable and inadmissible if convicted of an offense “relating to a controlled substance (as defined in section 802 of Title 21).” There is an exception to the deportation ground, and a waiver of inadmissibility, for conviction of a single offense of possession or being under the influence of marijuana or hashish. To be deportable, the person must have been convicted after admission to the U.S. 8 USC § 1227(a)(2)(B)(i) (deportability), 8 USC § 1182(a)(2)(A)(i)(II), (h) (inadmissibility waiver). In many cases, the record of conviction must identify the specific controlled substance involved in order for the crime to have immigration consequences. See Note: Controlled Substances and comments on individual offenses. Crimes of Domestic Violence, Stalking, Violation of Protection Order, Crime of Child Abuse, Neglect or Abandonment. A noncitizen convicted of one of these offenses, or who is the subject of a court order finding certain types of violations of a domestic violence protective order, is deportable under 8 USC § 1227(a)(2)(E). A crime of domestic violence is defined as a “crime of violence” against a current or former spouse, cohabitant, person sharing a common child, or any other a person who is protected from the defendant’s acts under the domestic or family violence law. See Note: Domestic Violence and individual offenses in this chart. Firearms offenses, A noncitizen is deportable under 8 U.S.C. § 1227(a)(2)(C) who at any time after admission is convicted “under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device ….”. See Note: Firearms. iv
DIVISIBLE STATUTES, RECORD OF CONVIC- TION One of the most important defense strategies comes from understanding and controlling the official “record of conviction” that will be considered by immigration authorities. A statute is “divisible” if it criminalizes offenses that do and do not bring immigration consequences. For example, ARS § 13-3102 is divisible for purposes of the firearms deportation ground because it prohibits offenses relating to firearms as well as those relating to non-firearms weapons, such as knives. As discussed in annotations to this chart, many statutes are divisible in this way. In cases other than those involving CMT’s, or aggravated felonies for fraud or operating a prostitution business, a reviewing court or immigration judge can examine only a strictly limited set of documents, often referred to as the “record of conviction” or “judicially noticeable documents,” to determine whether the offense of conviction causes immigration consequences. These documents include the charging document, but only where there is proof that the defendant pled to the count as charged; a written plea agreement; transcript of a plea colloquy; judgment; and any explicit factual finding by the trial judge to which the defendant assented. Thus, in the above example, if these documents did not conclusively establish that the weapon was a firearm, the noncitizen will not be deportable under the firearm ground. Presentence and police reports are not part of the reviewable record of conviction, except in some cases where counsel stipulated that they provide a fractual basis for the offense. For this reason, counsel must be very careful in providing a factual basis. See Note: Divisible Statutes and Record of Conviction. v
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