Your Client, (Client) is an asylee who has been convicted of California Penal Code § 487(d)(1) – Grand Theft Auto. How this conviction is sentenced will have very significant immigration consequences.
Aggravated Felonies in the immigration context render the immigrant deportable without any removal hearing, permanently inadmissible to the United States, and ineligible for almost all forms of immigration relief. Contrary to what the name suggests, even misdemeanor criminal convictions can amount an aggravated felony for immigration purposes.
Is the client’s conviction an aggravated felony?
INA § 101(a)(43) defines the various types of crimes that are aggravated felonies. Subsection G indicates that a theft crime where the term of imprisonment is at least one year or longer is an aggravated felony. Obviously “Grand Theft Auto" would qualify as a theft crime, therefore it is critical to keep the sentence to less than 365 days. Additionally, it is the imposed sentence that creates the problem. Even if the entire sentence is stayed, if it is greater than 364 days then it will still qualify as an aggravated felony.
II.Crimes Involving Moral Turpitude
There are many offenses that amount to a Crime Involving Moral Turpitude (CIMT) under current immigration law. Analyzing the Client’s conviction is generally a three step process. First it must be determined if the crime is in fact a CIMT, and if so, does the conviction make the Client deportable and/or does the conviction make the Client inadmissible.
Is the client’s conviction a Crime Involving Moral Turpitude?
It is well settled law that Grand Theft Auto is a CIMT. Crimes committed against the property of another (or the government) that involves inherently evil intent, such as theft crimes, are CIMT’s.
Is the client deportable for their CIMT conviction?
INA § 237(a)(2)(A) defines when an alien is deportable for committing a CIMT. (i)Any alien that is convicted of a CIMT within 5 years of admission, for which the maximum sentence that may be imposed is one year or longer, is deportable. (ii) Having committed two CIMT’s at any time after admission, is also deportable.
California Penal Code § 489(b) defines that Grand Theft that doesn’t involve the theft of a firearm is punishable by imprisonment in a county jail where the maximum sentence is not to exceed one year OR if charged as a felony, imprisonment for 16 months, 2 years, or 3 years. However, if the client is convicted of Grand Theft Auto, regardless of the sentence imposed or if it is a felony or misdemeanor, it will count as a CIMT.
The Client was granted asylum on June 3, 2007. The date of his conviction for Grand Theft Auto is May 25, 2013. The client has a DUI conviction from 2012, however this is not a CIMT. The CIMT conviction takes place outside of the first five years of admission and therefore the Client is not deportable on those grounds. Also, even though the client has two convictions, only one is a CIMT’s after admission.
Is the client inadmissible for their CIMT conviction?
8 U.S.C. § 1182(a)(2)(A) – a noncitizen is inadmissible if convicted of just one crime involving moral turpitude at any time after admission. As previously explained, the Client’s conviction for PC 487 – Grand Theft Auto is a CIMT and therefore the Client is inadmissible. This will act as a bar to adjusting his status to Lawful Permanent Resident (green card) unless an exception applies.
III.Petty Offense Exception
8 U.S.C. § 1182(a)(2)(A)(ii)(II) – If the client has only committed one CIMT ever which carried a maximum potential sentence of one year or less and the sentence actually imposed was 179 days or less, the Client will not be inadmissible for their CIMT conviction.
The client meets the first element of this exception as he has only been convicted of one CIMT. In order for the Client to qualify for this exception, it is critical to lobby for a misdemeanor sentence of 179 days or less in order to preserve his ability to adjust his status. A felony conviction, even with a sentence of 179 days or less, will not suffice as he will fail to meet the second prong of this exception because the maximum potential sentence will be greater than one year.
Should the client be convicted of an aggravated felony (sentenced to 365 days or more) or fail to meet the petty offense exception, he might still qualify for a section 209(c) waiver.
U.S.C.I.S. memorandum dated October 25, 2005: “Section 209 of the Act permits the Secretary of Homeland Security to adjust the status of eligible refugees and asylees to that of lawful permanent resident… section 209(c) grants the Secretary of Homeland Security the discretion to waive any other ground of inadmissibility under section 212(a) for humanitarian, family unity, and public interest purposes."
While the Client’s conviction would not fall within one of the disallowed grounds of inadmissibility, the waiver is not automatic. Attempting to obtain this waiver would be time consuming and expensive for the Client.
Thomas J. Baker
Law Office of Daniel M. Wigon
916-447-8975 - Sacramento Office
925-338-9750 - Bay Area Office