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OVERVIEW OF IMMIGRATION
LAW RELATING TO CRIMINAL
OFFENSES
June 9, 2009
The Immigration Definition of
Conviction
Formal judgment of guilt entered by a court.
If adjudication has been withheld, where:
 A judge or jury has found the alien guilty, OR
 The alien has entered a plea of guilty or nolo contendere
OR
 The alien has admitted sufficient facts to warrant a
finding of guilt AND
 The judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.
Mark Evans
June 9, 2009
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And Definition of Sentence
 Term of imprisonment / incarceration / confinement
 Regardless of suspension of the imposition or
execution of that imprisonment in whole or part.
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June 9, 2009
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Immigration Court
 Notice to Appear (NTA)
 Master Calendar
 Bond Hearing
 Individual Hearing on Relief Applications
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June 9, 2009
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Criminal Grounds of Removability
 Inadmissible Aliens – Aliens who cross the border
illegally or who are seeking admission.
 Deportable Aliens – Resident aliens and visitors such as
students and tourists.
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June 9, 2009
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Inadmissible Aliens
 Crimes Involving Moral Turpitude (CIMTs)
 Contrary to moral laws, base or vile, evil intent.
 Examples:
 Theft
 Fraud
 NOT CIMTs:
 DWI
 Involuntary Manslaughter
 Petty Offense Exception
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June 9, 2009
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Inadmissible Aliens
 Controlled Substances
 Need to know the substance.
 Must be in the federal Controlled Substances Act.
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June 9, 2009
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Inadmissible Aliens
 Multiple Criminal Convictions
 Two or more offenses.
 Total sentences to confinement must be 5 years or more.
 Not limited to CIMTs.
 Felony DWI may be used here.
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June 9, 2009
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Inadmissible Aliens
 Controlled Substances Traffickers
 Reason to believe a trafficker.
 No conviction necessary.
 (Not often seen, except at the border.)
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Inadmissible Aliens
 Prostitution
 Requires at least 2 convictions.
 (Also a CIMT.)
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Deportable Aliens
 CIMT
 Must be convicted within 5 years of admission AND
 The crime must carry a potential sentence of 1 year or
more. (Any Texas felony or misdemeanor A, but not
misdemeanor B or C.)
 Bond Issue – While most criminal grounds make an alien
mandatory, for this ground the actual sentence must be for 1
year or more.
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June 9, 2009
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Deportable Aliens
 Multiple Criminal Convictions
 2 or more CIMTs.
 At any time after admission.
 Not the same scheme of misconduct.
 Can be felonies, or any level misdemeanor.
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Deportable Aliens
 Aggravated felonies
 Very little relief available.
 Non-resident aliens may be removed without referral to an
Immigration Court.
 Commonly Seen Aggravated Felonies:
 Murder, Rape, Sexual Abuse of a Minor. (Deferred
adjudication is sufficient.)
 Trafficking in a controlled substance: Delivery of a controlled
substance, possession with intent to deliver, or 2 or more
possessions.
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June 9, 2009
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Deportable Aliens
 Aggravated Felonies Continued
 Crimes of Violence
 18 U.S.C. 16(a) (element of the use of physical force)
and (b) (felony and by its nature involves a substantial
risk of physical force).
 Need a 1-year sentence. (Not deferred adjudication.)
 Most likely requires an intentional act.
 “Intentionally, knowingly, and/or recklessly” in an
indictment creates issues in immigration court.
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Deportable Aliens
 Aggravated Felonies / Crimes of Violence
 Misdemeanor Assault in Texas is not a crime of violence
under 5th Circuit law.
 DWI is not a crime of violence.
 UUMV is a crime of violence. (Felony, substantial risk.)
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June 9, 2009
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Deportable Aliens
 Aggravated Felonies
 Theft or Burglary
 Requires a one-year sentence.
 Fraud where loss to the victim exceeds $10,000
 Commercial bribery, counterfeiting, forgery
 Requires a one-year sentence.
 Obstruction of justice, perjury
 Requires a one-year sentence.
 Attempt or conspiracy to commit any other aggravated
felony.
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June 9, 2009
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Deportable Aliens
 Controlled Substances
 Other than 1 possession of 30 grams or less of marijuana.
 “Relating to a controlled substance” – simulated controlled
substance
 Drug abusers and addicts. (Almost never used.)
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Deportable Aliens
 Firearms Offenses
 Very important to have the type of weapon specified on the
indictment and/or judgment for immigration purposes.
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Deportable Aliens
 Crimes of Domestic Violence, Stalking, or Violation of a
Protective Order, Child Abuse
 “crime of domestic violence” involves a “crime of violence”
under 18 USC 16
 felony assault of a family member in Texas
 Important to indicate on indictment and judgment that the
conviction involved a family member
 Injury to a child is child abuse.
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June 9, 2009
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Relief from Removal
 Asylum, Withholding, Convention Against Torture
 Some criminal bars, but all are eligible for CAT.
 Adjustment of Status / Re-adjustment
 Some criminal bars for drug crimes but most CIMTs may be
waived.
 Cancellation
 For resident aliens.
 Aggravated felony is a bar.
 For aliens who entered without inspection.
 Any criminal ground of removability bars them.
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Relief from Removal
 Voluntary Departure
 212(c) – For pre-1997/1996 convictions.
 NACARA Cancellation
 TPS – A stay of removal.
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Vacating the Conviction
 What is the basis?
 It is vital for the reason be spelled out in the motion to vacate
and/or order vacating the conviction.
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June 9, 2009
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Reducing / Reforming Sentences
 For immigration purposes, it will be the reformed sentence that
is considered.
 Note that in certain circumstances, the alien may benefit from
violating his probation.
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DHS Contacts
 Gary Goldman – Chief Counsel
 Don Cassidy – Deputy Chief Counsel
 Monica Thompson-Guidry – Deputy Chief Counsel
 Mark Evans – Senior Attorney
 Erica McGuirk – Senior Attorney
 There is also a duty attorney assigned daily.
 281/931-2046
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