Articles Posted in Criminal Convictions

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Although a relatively recent United States Supreme Court decision held that a conviction for simple battery in the State of Florida could not serve as a crime of violence, an Eleventh Circuit Court of Appeal decision distinguished that a felony battery conviction is a “crime of violence,” at least for purposes of the Federal Sentencing Guidelines.  This means that a conviction for a Florida Felony Battery is probably a deportable offense as a crime involving moral turpitude and as an aggravated felony, if the sentence is 1 year or more incarceration.


What is Felony Battery in Florida? 


Florida’s Felony Battery statute is defined in Florida Stat. §784.041.  In order to prove a person is guilty of Felony Battery, the State must prove, or the person must admit to (plead no contest of guilty) to the following elements:

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adobe-spark-postInjunctions for protection, also commonly referred to as restraining orders, continue to serve as a potential pitfall for non – United States citizens.  Injunctions are extremely easy to obtain and little evidence is required to obtain one.  Often, a judge will issue an injunction based solely on the word of the person who filed for the injunction.  That person may have ulterior motives to obtain the injunction, for example to gain leverage in a divorce proceeding or child custody proceeding.  But once an injunction is obtained, any violation of that injunction could lead to deportation.  A conviction is not even necessary.  And even if you would otherwise be eligible for a form of relief where the judge could cancel your removal, a conviction would render you ineligible.  A recent Board of Immigration Appeals decision has further solidified this position.


What is an Injunction?


An injunction is a court order commanding you to do things or to not do things.  For example, a judge can order you to stay away from a specific person, to stay away from specific places, to go to batterer’s intervention program classes, and to adhere to many other court ordered conditions.  A person can obtain an injunction by going to the courthouse and filling out a form alleging that they are in fear of future violence because of something the respondent has done or said in the past.  An injunction can be granted based on nothing but that person’s own words.  The court will typically issue a temporary injunction and set it for a hearing.  At a hearing, the judge will listen to you, the petitioner, any witnesses and will look at evidence that the petitioner or respondent submits.  The burden of proof is extremely low and if the judge feels that there is animosity between the two people will often err on the side of issuing the injunction.  However, this can have a significant impact on any person, but particularly for a non-citizen.

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There are two potential provisions of law that DHS (Department of Homeland Security) use to deport non – United States citizens for prostitution convictions.  The first is by claiming that it is a “crime involving moral turpitude.”  The second, which is much more severe, is that it is an “aggravated felony.”  The Board of Immigration Appeals recently decided whether a Wisconsin prostitution statute serves as the basis of an aggravated felony.


When is a prostitution conviction a “crime involving moral turpitude?”


Unfortunately, there is no defined list that shows which state statutes are considered crimes involving moral turpitude.  When a person is convicted of a crime, DHS can place that person in deportation proceedings and allege that the conviction is a crime involving moral turpitude.  It would then be up to the immigration judge to decide whether the conviction is a crime involving moral turpitude.  Moral turpitude has been explained to be conduct that is inherently dishonest, base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general.  If either party doesn’t like the immigration judge’s decision, they can appeal to the Board of Immigration Appeals and then to the Federal Circuit Court.  Those appellate decisions give us specific guidance on a few specific statutes and general guidance on other statutes.

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Criminal convictions are a primary basis for deportation or denial of immigration benefits, like greencards, visas, and naturalization.  A criminal conviction can have devastating consequences on your immigration options.  Some convictions may result in deportation.  Some may not.   Immigration is controlled by federal law.  Most convictions are based on state law.  Whether a state conviction qualifies as a deportable offense under federal law is often a complicated analysis that is commonly litigated in courts across the country.  The best course of action when you are charged with a crime is to consult with an experienced immigration lawyer who has criminal law experience.  Then make sure your criminal defense lawyer and immigration lawyer discuss the best options for your criminal case and how a conviction will affect your immigration case.  But what if it’s too late?  What if you already have the criminal conviction and are only now being told that you can be deported because of that conviction.  Or what if you are being told that you can’t apply for an immigration benefit because of your criminal conviction?


Is there anything I can do?


Once you plead guilty or no contest or are found guilty by a jury, it becomes increasingly difficult to fight your conviction.  However, there may be an avenue of hope.  The law in the State of Florida allows you to go back two years to challenge a conviction if your criminal defense attorney made certain mistakes.  For example, if your criminal defense attorney did not properly advise you of the immigration consequences of your criminal conviction, you may be able to reopen the case and negotiate a more immigration friendly plea.

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The Immigration and Nationality Act (INA) §237(a)(2)(E)(i) makes a non – U.S. citizen deportable if he or she is convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment.  Immigration attorneys often litigate whether a state conviction can be the basis for a federal deportation.  The language in the state statute often must fit squarely within federal definitions to result in deportation based on a specific conviction.  For example, the Board of Immigration Appeals (BIA) has determined that a conviction for “child endangerment” in Pennsylvania is not a conviction for “a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment,” for purposes of INA §237(a)(2)(E)(i). In re Jose De Jesus Murillo Gutierrez, A207 105 449 (BIA May 12, 2017)


What is the Federal Immigration Law relating to child abuse?


Any person who is not a United States citizen and is convicted for a crime of child abuse is deportable.  It doesn’t matter how long you have been in the United States or if this was a first offense or if you are a good person.  The statute is clear.  Now, you may have what is called a “form of relief,” available, but that is another issue.  That is kind of like an affirmative defense.  But a one time conviction for a child abuse offense can and usually will lead to the government issuing and filing a Notice to Appear, initiating deportation proceedings.

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The Eleventh Circuit Court of Appeals has recently ruled that a conviction for Domestic Battery by Strangulation is categorically a crime of violence.  This means that any non-U.S. citizen who is sentenced to 1 year or more on a Florida Domestic Battery by Strangulation would be convicted of an “Aggravated Felony” for immigration purposes and would almost certainly be subject to mandatory deportation.  You can read the full decision here: United States v. Shawn Dixon, No. 17-10503


What is a Crime of Violence?


There are certain criminal convictions that are deadly to any non-U.S. citizen.  “Aggravated felonies” will lead to almost certain mandatory deportation in most cases.  A conviction for an aggravated felony is to be avoided at all costs.  Aggravated felonies are defined in the Immigration and Nationality Act in §101(a)(43).  One particular type of aggravated felony is a crime of violence where you have been sentenced to incarceration for 1 year or more. (INA §101(a)(43)(F)).  If you are incarcerated for 1 day less than 1 year for a crime of violence, it would not be an aggravated felony.  It still could crime involving moral turpitude or some other deportable offense, but it would not be an aggravated felony.

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Consider this:  You are a Lawful Permanent Resident who has lived in the United States for nearly your entire life.  You have always been in the United States legally.  One day, you get arrested for a crime you did not commit.  Or maybe you did violate the law, but it was a very minor charge and you have never been in trouble before.  Like so many United States citizens in the same situation, you are offered a pretrial intervention program.  That is, the prosecutor diverts your case from the court system, has you perform some community service, pay some fines, maybe take a class, and if you complete all of the requirements, they drop the charges.  Under the laws of the State of Florida, you would even be able to get the charge expunged from your record.  After all, the law in this land of opportunity is set up to give people second chances when they make a mistake.  So, you enter the pretrial diversion program, do everything you were asked to do, successfully complete it, and the charges are dropped.  All is well, right?

Well, not according to the Board of Immigration Appeals (BIA).  In a recent decision, the Board of Immigration Appeals held that even if a case is referred to a pretrial diversion program and ultimately dropped, it can serve as a conviction for immigration purposes and be used as the basis for deportation.  What? How can that be? Here is the thought process:


What is the definition of a “conviction” for immigration purposes? 

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Violation of an Injunction for Protection is a landmine for non citizens.  If you, or a loved one, is not a United States citizen and have been served with an injunction or charged with violating an injunction, call an experienced immigration attorney for a consultation.  Here’s why:

The Immigration and Nationality Act includes a provision that makes a non-citizen deportable if they have an injunction for protection (aka restraining order) against them and the court determines that person violated the injunction by engaging in the conduct the injunction was meant to prevent.  INA §237(a)(2)(E)(ii)


What is an Injunction for Protection?

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Typically, if the government is going to institute deportation proceedings on the basis of a criminal charge, there must be a conviction.  In immigration court, the term “conviction” is interpreted very loosely.  For example, in the State of Florida, if a person receives a “withhold of adjudication,” they are technically not convicted, even though they have pled no contest or guilty and receive some form of punishment.  However, in immigration court, a withhold of adjudication would serve as a conviction sufficient to form the basis of a removal order.  This has been pretty well established in the immigration law community for some time.  What hasn’t been established is whether a person can be deported when there has been no formal conviction in criminal court, but the non-citizen admits to the elements of the offense before a criminal law judge.

The Fourth Circuit has recently spoken on this issue in Boggala v. Atty Gen’l, No. 16-1558 (4th. Cir. 2017).  Vijaya Boggala, a citizen of India, was arrested for solicitation of a minor.  He entered into a deferred prosecution agreement with the state.  A deferred prosecution agreement is basically front loaded probation.  It is an agreement to complete certain conditions (i.e. probation, counseling, etc.) and the state agrees to drop the charges upon successful completion of those conditions.  In this case, Mr. Boggala was required to admit to elements of the offense in open court before a judge, which he did.  He then successfully completed all the conditions of his deferred prosecution agreement and the charges against him were dropped.  You wouldn’t think that he would be subject to deportation, right?  After all, the charges were dropped.  Despite not being convicted of the crime, the Department of Homeland Security (DHS) instituted deportation proceedings against Mr. Boggala. They charged him with being deportable under INA Section 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and under INA Section 2237(a)(2)(A)(i), as an alien convicted of a crime involving moral turpitude.  The question presented to the Fourth Circuit was whether Mr. Boggala was “convicted” of the offense as that term is interpreted under the Section 237(a)(2) of the Immigration and Nationality Act.

Section 101(a)(48)(A)(i) of the INA defines “conviction” as a “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where…the alien… has admitted sufficient facts to warrant a finding of guilt.”  The Fourth Circuit thus analyzed whether Mr. Boggala admitted sufficient facts to warrant a finding of guilt and not whether the court actually made a finding of guilt.  The Court found that because Mr. Boggala stipulated to the facts that were to be used against him, he was convicted within the meaning of Section 101(a)(48)(A)(i), despite not having been convicted in criminal court.

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Any criminal arrest or conviction will have some negative consequence for a non-citizen.  Whether it is prolonged delay at the border while Custom and Border Protection (CBP) agents ask you questions, whether you are denied a bond in immigration court, whether you are denied the right to become a United States citizen or whether you are placed in deportation proceedings, criminal charges are bad.  Some criminal cases will have more severe consequences than others.  When it comes to the worst possible criminal conviction you can have, Aggravated Felonies are at the top of that list.

AGGRAVATED FELONIES ARE BAD!

Aggravated Felonies are bad!  Real bad.  They are referred to in many different provisions of the Immigration and Nationality Act.  They almost always will result in deportation.  They prevent a person from ever becoming a United States citizen.  And they preclude you from obtaining almost all forms of relief in immigration proceedings.