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Immigration counsel for Criminal Defense Lawyers, presented 9/20/13 to HCDL

Posted by attorney Neil Lewis

For my Hillsborough County criminal defense friends, I offer the following:

You will face clients with three different citizenship statuses. You will have clients who are US citizens. You will have clients who are permanent residents. And you will have clients who are neither.

The only issue with the people who say they are citizens is that some of them are not. You should be especially suspicious of a US birth certificate issued many years after a birth and before 2005 or so. Lawful permanent residents are those who have form I-551, the "green" card, or a stamp in their passport indicating their status. Typically this stamp will say "this stamp serves as a temporary I-551 indicating permanent resident status in the US."

Lawful permanent residents have the following issues that they need to be concerned about when facing a criminal charge. First of all they want to protect their green card.

For the first five years after a lawful permanent resident card is issued, the immigrant is basically on probation. If they are convicted of one felony crime involving moral turpitude within five years of gaining their status, they lose their green card. So please be careful with the first five years of a green card. They also lose their lawful permanent residence if they are convicted of two crimes involving moral turpitude at any time after they were granted residency. Seriously, convictions for shoplifting in 1973 and shoplifting in 2012 is enough to get you in deportation proceedings.

“Conviction" in immigration means any admission or finding of guilt. Withheld Adjudication = immigration conviction. Suspended sentence = counts for immigration. PTI in Hillsborough County without an admission of guilt is NOT a conviction for immigration purposes.

Lawful permanent residents also never want to plead guilty to a crime that makes them summarily deportable. You should never advise your clients to plead guilty to what is called in immigration, an "aggravated felony." There is nearly no relief for an aggravated felon. In most cases they will be deported no matter what. Aggravated felony is a term that has been vastly enlarged by immigration to include the following charges:


a. Murder, Rape, or Sexual Abuse of a Minor

b. Illicit Trafficking in Controlled Substance (as defined in § 102 of the Controlled Substances Act), Including a Drug Trafficking Crime (as defined in 18 U.S.C. §924(c))

c. llicit Trafficking in Firearms/Destructive Devices (18 U.S.C. § 921) or Explosive Materials (18 U.S.C. §841(c))

d. Laundering Monetary Instruments (18 U.S.C. § 1956) or Monetary Transactions over $10,000 in Property Derived from Unlawful Activities (18 U.S.C. § 1957)

e. Explosive Materials Offenses (18 U.S.C. §§ 842(h)-(i), 844(d)-(i)), Firearms Offenses (18 U.S.C. §§ 922(g)(1)-(5), (j), (n)-(p), (r) and 924(b), (h)), or Firearms Offenses (IRS Code § 5861 (1986))

f. Crimes of Violence (18 U.S.C. § 16) (Not including purely political offenses)–Term of imprisonment at least 1 year.

g. Theft/Burglary/Receipt of Stolen Property–Term of Imprisonment at least 1 year

h. Demand for or Receipt of Ransom (18 U.S.C. §§ 875, 876, 877, or 1202).

i. Child Pornography (18 U.S.C. §§ 2251, 2251A, or 2252)

j. RICO (18 U.S.C. § 1962) sentence of 1 year or more may be imposed for transmission of wagering info (18 U.S.C. § 1084)–for second or subsequent offenses and sentence of 1 year or more may be imposed or Gambling Offenses (18 U.S.C. § 1955)–sentence of 1 year or more may be imposed.

k. (i) Owning, Controlling, Managing, Supervising Prostitution Business; (ii) Transportation for Prostitution if Committed for Commercial Advantage (18 U.S.C. §§ 2421, 2422, 2423); (iii) Peonage/Slavery/Involuntary Servitude (18 U.S.C. §§ 1581, 1582, 1583, 1584, 1585, 1588)

l. Gathering/Transmitting National Defense Information (18 U.S.C. § 793)

m. (i) Offense Involving Fraud or Deceit Causing Loss to Victim Over $10,000; (ii) Tax Evasion Exceeding $10,000 (IRS Code of 1986 § 7201).

n. Alien Smuggling (8 U.S.C. § 1324; INA § 274(a) (1) (A) or (2)).

o. Improper Entry/Reentry By Alien Previously Deported for a § 101(a)(43) Offense (8 U.S.C. §§ 1325(a) or 1326; INA §§ 275(a) or 276).

p. Falsely Making/Forging/Counterfeiting/Mutilating/Altering Passport or Instrument (18 U.S.C. § 1543) or Document Fraud-term of imprisonment is at least 12 months (18 U.S.C. § 1546(a)).

q. Failure to Appear for Service of Sentence When Underlying Offense Punishable by Five Years or More.

r. Commercial Bribery, Counterfeiting, Forgery or Trafficking in Vehicles the ID Numbers of Which Have Been Altered–term of imprisonment at least 1 year.

s. Obstruction of Justice/Perjury or Subornation of Perjury/Bribery of Witness–term of imprisonment at least one year.

t. Failure to Appear After Court Order to Answer Felony Charge–for which term of 2 years or more may be imposed.

u. Attempt or Conspiracy to Commit Any of the Above Offenses.

Lawful permanent residents also want to preserve their eligibility for naturalization. This requires five years of good moral character. While a DUI will not affect good moral character for purposes of naturalization, probation for that offense will require you wait five years after the termination of probation to file for citizenship. Any conviction of a crime involving moral turpitude would also trigger a new five-year waiting period before citizenship could be achieved.

The third group of people you run into will be people without status, or people who are here on nonimmigrant visas. They have virtually the same goals, this group. They want to avoid bad attention from immigration, and they want to maintain their ability to someday get a green card.

Because of the weirdness of immigration law, aggravated felonies are not that big a deal to people who never been permanent residents. This is because the term aggravated felony is not used in conjunction with applications for admission. There is a general waiver available for nearly every crime committed in an application for permanent residence.

But your client no longer has to be concerned about a conviction. Now the standard is "reason to believe." There is no conviction required to declare someone inadmissible (i.e., ineligible for a green card".

The following crimes cannot be forgiven for those attempting to gain lawful permanent residence:

  1. Drug trafficking (this covers anyone that the government thinks is or has been a drug trafficker). One who is determined to be a drug trafficker cannot have a green card ever.

  2. Prostitution charges cannot be forgiven for 10 years.

  3. Alien smuggling.

  4. Terrorist activities.

  5. Money laundering.

I can tell you that I have spoken to the immigration experts regarding crimes and immigration. They assure me that there is no exact answer to any question. Immigration law regarding criminal issues has been flipped over and back in the past 10 years, and it is hard to predict results.

I encourage you to have your client get a consultation from a qualified immigration lawyer prior to pleading guilty to anything.

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