Deferred Action for Childhood Arrivals (DACA) is an American immigration policy started by the Obama Administration in June 2012 that allows certain undocumented immigrants to United States to enter the country is minors to receive a renewable two-year period of deferred action from deportation in eligibility for a work permit. To be eligible, immigrants must have entered the United States before their 16th birthday and before June 2007, currently being school, high school graduate or be honorably discharged from the military, the under age 31 as of June 15, 2015, and have not been convicted of a felony, significant mean misdemeanor or otherwise pose a threat to national security.
If you were considering reopening your case to take advantage of Daca, you should understand what a felony is and what are the significant misdemeanors that may prohibit your ability apply under DACA.
I. Immigration Consequences/Deportability;
II. Habitualized Driver’s License;
Why would anyone want to reopen an old criminal case?
Criminal Law & Immigration:
The Immigration and Nationality Act specifically discuss both the crimes and conduct which make aliens deportable and/or inadmissible. Being deportable under INA 237 or inadmissible under INA 212 leads to the same results of subject to removal as provided by INA Section 240.
Many individuals do not realize the consequences of their convictions even though it probably was explained to a lesser extent in their plea colloquy, until after the individual file forms I-485 Application to Register Permanent Residence or Adjust Status with the United States Citizenship and Immigration Services Bureau of the U.S. Department of Homeland Security. The form I-485 allows for an Immigration Visa to be immediately available at the time of the application subject to the individual being admissible to U.S. for permanent residence. The form I-485 will be denied as the result of certain criminal court proceedings because the individual is found to be inadmissible for permanent residence as described in Section 212(a)(2) and 8 U.S.C. Section 1182(a)(2).
With respect to Immigration both in practice and as defined in Section INA 101 a(48A) and 8 U.S. Code § 1101 a(48A) a conviction a defined as nay form or finding of guilt whether or not adjudication was withheld. There are no exceptions even for a Suspended Entry of Sentence.
REOPENING CLOSED CASES FOR IMMIGRATION PURPOSES
At the Criminal Defense Center, P.A. we are often approached by individuals who need our “Time-machine” to correct a problem from their past either to become nationalized or to avoid deportation. Post-Conviction Relief work can be complicated, subject to interpretation in other words in several different depending on public opinion. Listed below are the important factors that must be investigated when attempting to reopen a closed case:
- Was the case closed within the past 2 years?
- The reason for needing to reopen the case, did that reason come to light within the past 2 years?
- Is the case that needs to be reopened a Felony or Misdemeanor?
- Is there more than one case that needs to be reopened?
- Is the case a violent crime?
- How long has the person been with the United States? Are they otherwise a productive member of society?
- Has new evidence come to light that had not been turned over or otherwise could not be found when the case was closed?
- Was there an Attorney handling the original case?
- Did the Attorney work the case well enough to determine that due process was satisfied or did they simply take the money and plea the case out?
- Did the original Attorney take the time to explain all the consequences of the plea to the Defendant; including, but not limited to: the Immigration Consequences, he likelihood of winning at trial, the minimum and maximum penalties, and otherwise take the time to interview all witnesses that may have exculpated the Defendant?
A State Attorney may be sympathetic that an otherwise Law Abiding Citizen who made a mistake in his or her youth is being deported. However, imagine how the system would shut down if every single person who was deportable needed to reopen a prior criminal case. Please call us at 305-567-1011 to discuss your case(s). Be prepared to answer the questions listed above in order that we may be even more helpful.
The Immigration and Nationality Act describes several crimes and types of criminal conduct in terms of which aliens are deportable and which aliens are inadmissible. Being deportable under INA 237 or inadmissible under INA 212 leads to the same result of being subject to removal (deportation) proceedings as provided by INA Section 240. In fact, 8 U.S.C. Section 1227(a)(2)(A)(1) provides that “Any alien…[i]nadmissible at time of entry or of adjustment of status…is within one or more of the …classes of deportable aliens).
Contact a criminal defense attorney at the Criminal Defense Center, P.A. to discuss any arrest or prosecution in the Miami area involving an individual who is not a United States citizen. Call 305-567-1011.
Certain convictions might cause an individual to be inadmissible for lawful permanent residence in the United States under INA Section 212(a)(2) and 8 U.S.C. Section 1182(a)(2) which provides for certain types of aliens who are ineligible for admission or visas.
Many individuals do not realize the consequence of the conviction until after the individual files a Form I-485 Application to Register Permanent Residence of Adjust Status with the United States Citizenship and Immigration Services Bureau of the United States Department of Homeland Security. The Form I-485 allows for an immigration visa to be immediately available at the time of the application subject to the individual being admissible to the United States for permanent residence.
However, if the individual has a certain type of criminal conviction, then the Form I-495 Application to Register Permanent Residence or Adjust Status will be denied because the individual is found to be inadmissible to the United States for permanent residence. See Section 212(a)(2) and 8 U.S.C. Section 1182(a)(2).
With respect to immigration consequences to an alien the Immigration and Nationality Act defines the term “conviction” under INA Section 101(a)(48)(A) and 8 U.S.C. Section 1101(a)(48)(A). In this context, the term “conviction” includes either a formal finding or judgment of guilt entered by the trial court or any case in which adjudication was withheld under the following circumstances:
- the alien entered a plea of no contest, nolo contendere or guilty; the alien has admitted sufficient facts to warrant a finding of guilt; or a jury or judge found the alien guilty of the offense; and
- the court has ordered some penalty, form of punishment, or restraint on the alien’s liberty to be imposed.
The sentence of term of imprisonment includes the period of confinement or incarceration announced at sentencing by the court regardless of whether any part of the sentence was suspended. Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(an alien entered a “no contest” or nolo contendere plea to a drug possession crime under Florida law and even though the alien received a withhold of adjudication, the fact that court costs were assessed caused a “conviction” because the imposition of court costs was a form of punishment under federal law).
Immigration consequences of drug convictions
In Catwell v. Attorney Gen. Of The United States (3rd Cir., October 13, 2010) Docket No.: 08-4208 the Third Circuit the court found that 120g of marijuana was not a “small amount.”
In that case the petitioner appealed the BIA’s decision to reverse the IJ’s grant of LPR cancellation of removal. The BIA concluded that a state law conviction for possession with intent to distribute 120.5 grams of cannabis amounted to an “aggravated felony” as defined by 8 U.S.C. Section 1101(a)(43)(B) which rendered Catwell ineligible for cancellation of removal. Additionally, the BIA decided that Catwell’s conviction did not qualify for any exceptions found in 21 U.S.C. Section 841(b)(4).
On appeal, the Third Circuit held that possession of 120 grams of marijuana for personal use is more than a “small amount” as contemplated by the CSA under 21 U.S.C. § 841(b)(4). Furthermore the court held that the PA Criminal Complaint to which the Defendant pleaded guilty or nolo contendere is appropriate for consideration under the “modified categorical approach.”
Outcome: In interpreting the statutory exception’s language “small amount of marijuana” the Court concluded that the legislative intent was for the exception to apply to the sharing of small amounts of marijuana in social situations. See United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008); United States v. Outen, 286 F.3d 622, 637 (2d Cir. 2002); see also 116 Cong. Rec. 35,555 (1970).
The Court even cited Senators’ comments in the congressional record which discussed an exception applying to only a couple grams of marijuana. Also the court looked at the existence of the “30 grams of less” marijuana exception to removability under 8 U.S.C. § 1227(a)(2)(B)(i). Thus the court affirmed the BIA’s decision that the petitioner was not eligible for LPR Cancellation of removal because 120.5 grams of marijuana was not a “small amount of marijuana” for purposes of the exception found in 21 U.S.C. § 841(b)(4).
- Type of Criminal Convictions Resulting in Immigration Consequences
- Conviction for Crimes of Moral Turpitude
- Convictions for Crimes of Violence with Term of Imprisonment Imposed is At Least One Year
- Convictions for Illicit Trafficking in a Controlled Substance
- Aggravated Felonies