Transcript Unit 2: Definition of Conviction, Drug Offenses

National Defending Immigrants
Partnership Training
Advanced Track—
Day One, Morning
Trainees Report Back
What has been your role as in-state or inhouse immigration expert for defenders?
 What feedback, positive or negative, have
you received from colleagues?
 What significant hurdles have you faced, if
any, in playing this role?

Selected Advanced Topics and
Exercises
Unit 1: Firearms Offenses
Unit 2: Attempts
Unit 3: Selected Relief
Unit 1: Firearms Offenses

Purchase, sale, offering for sale, exchanging,
using owning, possessing, carrying.

Unless also an aggravated felony (gunrunning,
crime of violence) relief for most non-citizens
still available even if deportability sustained
on this ground alone.
Unit 1: Firearms Offenses 2 —
Moral Turpitude Issues
Assault Offenses
 An assault offense involves moral turpitude if
either:
– the crime as defined requires a conviction
a specific intent to injure; or
– requires recklessness and serious bodily
injury. Matter of Fualaau, 21 I&N Dec.
475 (BIA 1996).

Unit 1: Firearms Offenses 3

Does not include an enhancement for use of
a firearm.

Impact unclear if “enhancement” is really a
separate element of offense under Supreme
Court’s analysis in Blakely in a mandatory
guideline state.
Washington 3rd Degree Assault
Defendant charged with under a statute that
punishes:
 a person who “with criminal negligence
causes bodily harm accompanied by
substantial pain that extends for a period
sufficient to cause conscious suffering”
 Complaint alleges that defendant used a gun
to commit the offense

Assault Continued

Is a person who pleads to indictment
convicted of:
– a firearm offense for “using a gun in
violation of law”?
– a crime involving moral turpitude for
inflicting pain?
Firearm Offenses Continued
Scope of Record:

If the statutory definition of the offense does
not involve a weapon, then a conviction is
not a firearm offense even if the record of
conviction shows that the defendant actually
used a firearm. Matter of Perez-Contreras,
20 I&N Dec. 615 (BIA 1992).
Scope of Record 2

If a statute punishes use of a weapon,
including a firearm, then it is a “divisible
offense.” A noncitizen convicted under a
“divisible statute” is not deportable for a
firearm offense unless the record of
conviction establishes that the offense
committed involved firearms. See, e.g.,
Matter of Pichardo, 21 I&N Dec. 330 (BIA
1996).
Scope of Record 3

This means:
– If a noncitizen is convicted of assault
with a deadly weapon she or he is
deportable if the record of conviction
indicates that the weapon was a gun.
Tennessee Example
§ 39-13-102. Aggravated assault
– (2) Recklessly commits an assault as
defined in § 39-13-101(a)(1), and:

(A) Causes serious bodily injury to
another; or

(B) Uses or displays a deadly weapon.

Tennessee Example 2

Does a violation of § 39-13-102 necessarily
constitute:
– A crime involving moral turpitude?
– A firearm offense
– A crime of violence
Tennessee Example 2
–
–
–
a guilty plea to recklessly committing an
assault while displaying a deadly weapon
(knife) probably avoids moral turpitude
(which requires recklessness+serious
bodily injury)
and is not a firearm offense
sentence of less than a year avoids crime
of violence
Unit 2: Attempts —
Watch Out! Irrelevance of Label

The state label of an offense is not conclusive on
whether the state conviction constitutes a “category
U” aggravated felony (AF).

Example: Matter of Onyido, 22 I. & N. Dec. 552
(BIA 1999)(state conviction of submitting false
insurance claim = attempted fraud or deceit AF,
even though actual loss to victim did not exceed
$10K).
Unit 2: Attempts —
Irrelevance of Label 2
 The
Second and Seventh Circuits define
attempts as the intent to commit a crime
and taking a substantial step towards its
completion.
Unit 2: Attempts —
Irrelevance of Label 3
 Sui
v. INS, 250 F.3d 105 (2d Cir. 2001)
(possession of counterfeit securities with
intent to deceive is NOT AF as an
attempted fraud or deceit offense
because mere possession does not
constitute a substantial step toward
creating a loss to victims > $10K).
Unit 2: Attempts —
Irrelevance of Label 4

Attempted Possession of Stolen Property:
The BIA treats a conviction for attempted
possession of stolen property as an attempted
theft AF where the defendant receives a
sentence of a year or more.

It treats the offense as an attempted receipt of
stolen property conviction. Matter of Bahta,
22 I&N Dec. 1381 (BIA 2000).
Exercise
 Burglary
of a vehicle is not a burglary
offense.
 Is burglary of a vehicle with intent to
commit a theft an aggravated felony if
defendant receives one year sentence?
 If so, how?
Burglary of a Vehicle as
Attempted Theft

According to the Seventh Circuit, a defendant
who enters a vehicle with the intent to
commit a theft has the intent to commit a
crime and taken a substantial step towards its
completion. United States v. MartinezGarcia, 268 F.3d 460 (7th Cir. 2001), cert.
denied, 534 U.S. 1149 (2002).
Unit 2: Attempts — Taking Advantage of
State Plea = “Legal Impossibility”
Gill v. INS, 420 F.3d 82 (2d Cir. 2005):
 Conviction for New York attempted felony
reckless assault is NOT a CIMT, even where
the completed crime is a CIMT.
 Under NY law, a defendant can be guilty of
an attempted crime only if he specifically
intends all elements of that crime. It is a
“legal impossibility” to be guilty of
attempting to commit a reckless crime.
Unit 2: Attempts — Taking Advantage of
State Plea = “Legal Impossibility” 2
“Without in any way questioning the state’s
ability to hold a defendant to his plea to an
attempted reckless crime (which may have
made practical sense in terms of reaching a
contextually appropriate sentence or
sentencing range)” . . .
Unit 2: Attempts — Taking Advantage of
State Plea = “Legal Impossibility” 3
“. . . we find that, in the immigration context,
no mental state can be clearly discerned from
the conviction, let alone the sort of
aggravated recklessness that has been found
to demonstrate moral turpitude . . . .” Id.
Unit 2: Attempts — Taking Advantage of
State Plea = “Legal Impossibility” 4
Knapik v. Ashcroft, 184 F.3d 84
(3d Cir. 2004):
A conviction for New York attempted
reckless endangerment in the first degree is
legally incoherent and therefore not a CIMT
for immigration purposes
Food For Thought:
 What
is the definition of “attempt” in
your jurisdiction?
 Is
a plea disposition to an attempted
reckless crime ever possible in your
jurisdiction?
More Food For Thought:
 Gill
and Knapik analyze whether an
attempted reckless crime may be moral
turpitude.
 How
might the “legal impossibility”
theory also help avoid triggering a
“crime of violence” aggravated felony?
Unit 3: Selected Relief —
LPR Cancellation of Removal
Found at §240A(a), 8 USC 1229b(a)
 Lawfully admitted for permanent residence
for not less than 5 years
 Resided in the U.S. continuously for 7 years
after having been admitted in any status
 Has not been convicted of an aggravated
felony
 Merits favorable exercise of discretion

Things to Remember Regarding
Residence Requirements
Permanent residence must have been lawfully
obtained. Matter of Kolontangi, 23 I&N Dec.
548 (BIA 2003); however, INA
§237(a)(1)(H) waiver may cure underlying
fraud.
 Permanent residence begins to accrue upon
admission to LPR; exceptions: Cuban
Adjustment Act and refugess/asylees where
LPR is back-dated

Things to Remember Regarding
Residence Requirements 2
7 years of continuous residence do not have
to be in continuous lawful status as long as
initially admitted in any status. See Matter of
Blancas-Lara, 23 I&N Dec. 458 (BIA 2002).
 Continuous residence and continuous
physical presence are not the same thing;
limitations found in INA §240A(d)(2) do not
apply to continuous residence requirement
for LPR cancellation.

Things to Remember Regarding the
Stop-Time Rule for LPR Cancellation

Stop-time rule of INA §240A(d)(1) does not
apply to 5 years as LPR, only to 7 years of
continuous residence.

Service of NTA governs, not issuance or filing.
Things to Remember Regarding the
Stop-Time Rule for LPR Cancellation 2

First of two moral turpitude offenses does not
stop time if, standing alone, it would fall
under the petty offense exception to
inadmissibility. Matter of Deanda-Romo, 23
I&N Dec. 597 (BIA 2003).
Unit 3: Selected Relief —
Adjustment of Status

Immediate relative of U.S. citizen (e.g.
citizen spouse); and

Not inadmissible under 8 USC § 1182(a)
Adjustment of Status and
Inadmissibility
 Inadmissible
Drugs
– Moral turpitude
 Waivers of Inadmissibility
– For LPRs seeking adjustment?
– For non-LPRs seeking adjustment?
–
Adjustment of Status and
Aggravated Felonies

Although most convictions for an aggravated
felony fit under a ground of inadmissibility,
two exceptions are:
 Firearms trafficking offenses; and
 Harboring offenses pursuant to 8 U.S.C.
§ 1324(a)(1)(A)(iii)
DV Hypothetical