A common problem that faces our clients is being accused of committing misdemeanor crimes and how to deal with those charges.  A competent legal defense can be costly.  We have found that a legal defense that does not include consultation with a competent immigration attorney can be even more costly and worse yet can render the immigrant deportable.

We commonly see clients who were accused of seemingly minor charges that can trigger some major immigration consequences.

The typical charges with major immigration consequences:

1. Misdemeanor Sex Crimes
2. Assault and Battery
3. Marijuana vs. Paraphernalia

Our Recommendation

Any person who holds either a Nonimmigrant Visa or Lawful Permanent Residence faced with criminal charges of any kind should consult competent immigration counsel immediately upon being charged and certainly prior to accepting a plea agreement.

For an immigrant, one or more convictions of a misdemeanor sex crime, assault and battery, DUI or possession of drug paraphernalia can be found to be an “aggravated felony” under the immigration laws.   The finding of conviction of an “aggravated felony” will render that immigrant “removable” (a newer term for “deportable”).

Conviction vs. Probation before Judgment; Suspended Sentences – Details to Consider

Often first time offenders are given a judgment of “probation before judgment”.  Probation before judgment is a conviction for immigration purposes.  First time offenders may receive a sentence which is completely suspended with a period of probation.  It is important to note that the whole term of the suspended sentence is considered for immigration purposes when evaluating the immigrant’s deportability.

Cases that Illustrate the Challenge with Misdemeanors

Misdemeanor Sex Crime under New York Law renders Immigrant Deportable.  In In re Small, Board of Immigration Appeals found that the misdemeanor offense of sexual abuse of a minor qualifies as an aggravated felony under INA §101(a)(43)(A). In Small, the individual was convicted of sexual abuse in the second degree under New York Penal Code §130.60(2); this offense is classified as a class A misdemeanor, punishable by imprisonment for one year or less. The BIA made this conclusion, reasoning that, "an offense classified by state law as a misdemeanor can be an ‘aggravated felony’ . . . if the offense otherwise conforms to the federal definition [of that term] found in 8 USC §1101(a)(43) . . . ." 149(4) Again, in light of Leocal’s scienter analysis, all types of offenses previously designated by precedent case law as "aggravated felonies" (especially those classified by a state as misdemeanors) can and should be re-examined.

Misdemeanor Child Abuse in Connecticut Renders Immigrant Deportable. The decision in Santapaola v. Ashcroft, involved a Connecticut misdemeanor offense of child abuse. The Connecticut District Court discussed at length the theme that child victims are incapable of giving their consent to sexual activity and are often intimidated by the adult authority figure. The district court noted that federal courts across the country have found a substantial risk that physical force will be used against a child to ensure compliance in the course of a sexual activity; thus, it falls under a crime of violence, and therefore, an aggravated felony.

Assault.

In the case of a charge of assault, one has be concerned about the term of imprisonment.  There are varying degrees of assault.  However, any charge of assault that results in a conviction and a sentence with a term of imprisonment of 365 days or more is considered to be imprisonment for one year under the aggravated felony statutes. Matsuk v. INS, 247 F.3d 999, 1001-02 (9th Cir. 2001).  If a person’s sentence is reduced to less than 365 days by the vacation of his previous sentence and the institution of a new less-than-365-day sentence, s/he will not be considered to be convicted of an aggravated felony. Matter of Song, 23 I&N Dec. 173 (BIA 2001). 

 Marijuana and the 30 Gram Exception.

 It is not a deportable offense for someone to be convicted of "a single offense involving possession for one’s own use of 30 grams or less of marijuana." INA §237(a)(2)(B)(i).   The exception does not apply to hashish or other marijuana derivatives.  Being under the influence of a drug other than marijuana i.e. amphetamines even if a misdemeanor may be a deportable offense. Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993).

 Paraphernalia.

An immigrant is deportable if at any time after admission, has been convicted of a violation of or conspiracy or attempt to violate any law or regulation of a state, the U.S., or a foreign country relating to a controlled substance as defined in 21 U.S.C. §802. INA §237(a)(2)(B)(i), 8 U.S.C. §1227(a)(2)(B)(i).  A conviction of possession of paraphernalia has been found to be a deportable offense.  For instance in Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) possession of drug paraphernalia under §13-3415 of Arizona Crim. Code was found to be a deportable drug conviction.