Immigrants and Crime

Both the criminal law practitioner and the immigration practitioner have to be familiar with immigration laws’ impact on criminal defense of immigrants in order to obtain the best outcome for their clients.

The US Foreign Affairs Manual requires US consulates to revoke non-immigrant visas for DWI related arrests and convictions, section 403.11 – 3 (A) (U) (5). The regulation states that the alien is subject to a Watch List Promote Hit for an arrest or conviction for DWI which occurred within the last 5 years, 9 FAM 403.11-5(B). If nonimmigrant visas are revoked for DWI arrests it is impossible for the defendant to clear his name unless he is not convicted of DWI(?). So if you are in the US on a non-immigrant visa and get arrested for DWI/DUI your visa can be revoked. Good immigration and criminal defense counsel are clearly necessary if your client is accused of DWI.

In a decision by the Board of Immigration Appeals on an appeal by Allan Pollack, Esq. the Board found that the minimum conduct required under the New Jersey possession with intent to distribute marijuana statute, 2C: 35 – 5 is not an aggravated felony. Under federal law a drug trafficking crime is any felony punishable under the Controlled Substances Act. A state drug conviction qualifies as an aggravated felony if it is punishable as a felony under the CSA. Mr. Pollak’s client was charged with possession with intent to distribute between 1 ounce and 5 pounds of marijuana. Under federal law a single offense for distributing a small amount of marijuana for no remuneration is a simple possession offense, not a felony. The client had one ounce of marijuana, which is just under 30 g. The Board held that small depends on the context and that 1 ounce of marijuana was a small amount under federal law. The Board’s holding in Matter of Castro Rodriguez creates a presumption that 30 g is a small amount. The defendant was therefore eligible for cancellation of removal. In sum, if you have an ounce of marijuana which you intend to share with others, for free,  you may be convicted of a 3rd degree crime in New Jersey but you won’t be deported.

In Silva Trevino,26 I&N Dec 826 (BIA 2016) defendant was convicted of the offense of indecency with a child under Texas law. DHS charged defendant with removability as an alien who had been convicted of an aggravated felony for sexual abuse of a minor. The Board held that it must use the categorical approach to determine whether a state or federal crime is one involving moral turpitude. It also stated that the Board will focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction. (This is contrary to Third Circuit precedent, Jean- Luis v. AG, 582 F 3rd 462 (2009). Also, and importantly moral turpitude was defined as an intentional sexual conduct with a child as long as the defendant knew or should have known that the victim was a minor. Because the Texas statute was broad enough to punish statutory rape,  and in fact did punish statutory rape, categorically the crime committed by the defendant was not of moral turpitude. The Board held that the defendant was not inadmissible as he had not been convicted of a crime involving moral turpitude.

Silva Trevino is a very important case because it requires the application of the categorical approach to determine whether a particular offense is one of moral turpitude. The other important part of this decision is that it defines moral turpitude, at least here, as the intentional commission of the offense with knowledge that the victim was a minor. Statutory rape is an offense where the defendant does not know that the ‘victim’ is a minor. In sum, Silva-Trevino was going to be deported for the crime of sexual contact with a minor. But since the criminal statute also applied to statutory rape, the statute could not be categorized as involving moral turpitude. Statutory rape is, in my experience, sex by someone who is over 18 with someone under 18 who successfully passes herself/himself off as 18.

The point for criminal defense counsel is to know exactly what the immigration consequences are of a particular offense and how to analyze that offense to determine what they are. Nevertheless, running your analysis past a experienced immigration law attorney is highly recommended.