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A Recent Board of Immigration Appeals Decision Reminds us Why Non-Citizens need Immigration Advice during their Criminal Case

The Board of Immigration Appeals recently published two new cases. One, about NACARA (Nicaraguan Adjustment and Central American Relief Act) will have limited effect on most immigrants’ lives as very few people still qualify for this form of relief from removal. The second case is another example of why every criminal defendant who is not a citizen needs a crimmigration attorney to advise them during their criminal prosecution.

Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015); In a decision limited to NACARA (Nicaraguan Adjustment and Central American Relief Act) eligibility, the Board held that when a respondent was subject to multiple grounds of removability, the ten-year continuous physical presence requirement begins at the point of the most recent ground triggering removal. In this case, the respondent entered without admission or parole in 1996 and this triggered his first ground of removability. The respondent was subsequently convicted of possession of cocaine in 2012, triggering an additional basis for removal. The Board held that this respondent did not qualify for NACARA (heightened standard due to the criminal conviction), because the respondent could not show ten years of continuous physical presence after the 2012 conviction.

Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015); The Board held that when a respondent is sentenced to serve a year or more in a substance abuse treatment facility, that sentence constitutes a “term of confinement” as is required to support certain aggravated felonies under INA § 101(a)(43). The Board focused on the fact that a person sentenced to this type of treatment facility is not free to leave during the term of the sentence. The Board reasoned that “term of confinement” is not limited to actual jail time, but can include other forms of confinement, including custodial treatment facilities.

The Calvillo Garcia case is a prime example of an immigrant who probably thought he was getting a great deal in criminal court–substance abuse treatment rather than prison. However, as I have said for years, a good deal for a U.S. citizen in criminal court is very often a guaranteed order of removal for a non-citizen immigrant. If Mr. Calvillo Garcia had an experienced crimmigration attorney to help him during his criminal case, he would have likely been advised that taking a plea offer of a sentence of treatment in a residential facility would be considered imprisonment for immigration purposes and make him an aggravated felon. As an aggravated felon, he would be barred from most forms of immigration relief and be looking at almost certain deportation.

This decision also serves as a reminder that house arrest with electronic monitoring (an ankle bracelet) is also likely going to be considered a term of imprisonment under the Immigration and Nationality Act. For certain convictions, those involving violence, burglary, theft and others, if you are an immigrant and you receive a sentence of imprisonment of one year or more, you are considered an aggravated felon and face almost certain deportation. It does not matter if you actually serve a year, or even serve a day in jail, all that matters is what your sentence is. Suspended sentences do not help you, they are considered the same as if you served every day of the sentence in prison. This case makes it clear that the year or more imprisonment does not just include jail, but can include house arrest with an ankle monitor, residential treatment facilities and other places where you are confined and not free to leave.

So when faced with the question, “I am not a U.S. citizen, will my criminal case affect my immigration status,” the answer is always yes, maybe not today, maybe not tomorrow, but every criminal arrest has a negative immigration consequence. The only question is how severe will that consequence be. Only an experienced and qualified immigration attorney who knows criminal law will be able to tell you the answer and try to protect your immigration rights.

John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant. You can contact John If you need an Orlando Immigration Attorney or need a crimmigration consultation, no matter where you live in the world. http://www.floridacrimmigration.com

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