Transcript Eight Tips on Immigration and Crimes

Unit 9:
Other Common Offenses
12 Tips on Firearm,
Motor Vehicle,
Prostitution, Fraud, &
Ancillary Offenses
1. Firearms Deportability
A conviction relating to a gun or bomb is a
basis for deportability. 8 USC
1227(a)(2)(C).
• Tip: Plead to offense that penalizes
•
both guns and non-guns, with vague
record of conviction.
No firearms ground of inadmissibility
per se, so person still could immigrate
through family. Matter of Rainford,
Int.Dec. 3191 (BIA 1992).
Firearms Deportability, cont.
•
But violent offenses usually are CMT’s,
so do that analysis as well.
2. AF Gun/Bomb Offenses
State convictions that are AF’s include:
(a) trafficking in firearms or bombs, or
(b) state analogues to federal offenses;
most commonly, being a felon, addict, or
undocumented immigrant in possession
of a firearm or bomb.
• No particular sentence is required.
• Remember: crime of violence with 1-yr
sentence imposed is AF independently.
3. Fraud Offenses
A crime of fraud or deceit where loss to the
victim exceeds $10,000 is an AF. 8 USC
1101(a)(43)(M)(i). Complex analysis, look to
circuit and state law.
• Tip: Avoid “fraud” conviction, e.g. plead to
generic theft with no fraud element.
• Tip: If theft offense, also avoid 1-year
sentence imposed to avoid AF.
Fraud Offenses, cont.
•
Tip: Avoid finding of loss >$10k. Plead
to 1 count fraud where loss to the victim
<$10k, then deal w/ $10k restitution.
-
-
Pay down restitution below $10k before
sentence?
Does plea trump the restitution order?
Chang v. INS, 307 F.3d 1185 (9th Cir.
2002) (not AF because plea agreement
specified loss from conviction count
<$10k).
Fraud Offenses, cont.
•
•
But see US v. Doe 374 F.3d 851 (9th Cir.
July 6, 2004)(state law holds that
restitution = loss to victim), so plea
agreement may not work.
Otherwise hide restitution? Separate civil
judgment?
4. Hazardous Waste

Tip: In lab and precursor cases, try
unauthorized transportation or disposal of
hazardous waste. Where statute has no
element of controlled substances, this is
not AF, CSO, or CMT (since it is merely a
regulatory offense).
5. Prostitution
“Engaging in” prostitution, even absent
conviction, is basis for inadmissibility (not
for customer).
 Prostitution is CMT for prostitute,
possibly for customer as well.
 Conviction for managing prostitution
business can be AF (8 USC 1101(a)(43)
(K)(i)) or basis for deportability.

6. Driving Under the Influence

Aggravated Felony:
•
•

DUI with negligence or less is not a COV,
so 1-yr sentence imposed does not
create AF. Leocal, 125 S.Ct. 377 (2004).
But see pending legislation that would
reverse this. To protect client, obtain
sentence of 364 days or less.
CMT’s: Simple DUI is not CMT.
•
Even multiple DUI convictions not CMT
7. Driving on Suspended License



Driving on suspended license has no
immigration effect.
BIA held DUI on suspended license is CMT.
Matter of Lopez-Meza, 22 I&N Dec. 1188
(BIA 1999).
Ninth Circuit held that where statute at issue
prohibits not only driving but sitting in
unmoving car, it is not CMT. HernandezMartinez v. Ashcroft, 343 F.3d 1075 (9th Cir.
2003).
8. Failure to Appear Conviction =
Danger


AF if failed to appear
• Pursuant to court order for disposition of
charge where max possible sentence = 2
years or more. INA 101(a)(43)(T); or
• To serve time for offense where max
possible sentence = 5 years or more.
INA 101(a)(43)(Q).
Tip: Take substantive conviction, probation
violation, etc. to avoid FTA.
9. Ancillary Offenses
and Potential Sentence

If ancillary offense carries less potential
sentence than principal offense, plea to
ancillary may avoid CMT consequences.
•
•
e.g. deportable for one CMT conviction
committed within 5 years of admission if it
carried potential sentence of 1 year or more.
e.g. not inadmissible for one CMT conviction
if sentence was 6 months or less & potential
sentence was 1 year or less (petty offense
exception).
10. Ancillary Offenses: Accessory
after the Fact, Misprision

Accessory after fact and misprision are
valuable pleas to avoid a drug or AF
conviction, because they do not “take on
the character” of the underlying offense.
• BIA holds that accessory after the fact is
an AF as obstruction of justice, if a
sentence of one year or more is imposed.
Batista-Hernandez, 21 I & N Dec. 955
(BIA 1997).
• BIA holds same is not true for misprision.
11. Ancillary Offenses: Solicitation


Ninth Circuit held “generic” solicitation, where
offense involved drugs, is not an AF or
deportable drug conviction. Coronado-Durazo
v. INS, 123 F.3d 1322, 1324 (9th 1997); LeyvaLicea v. INS, 187 F.3d 1147 (9th Cir. 1999).
Ninth Circuit held that “specific” solicitation
(e.g., offering to sell drugs) is not an AF.
Advocates argue also not deportable
conviction. US v. Rivera-Sanchez, 247 F.3d
905 (9th Cir. 2001)(en banc).
11. Ancillary Offenses: Solicitation (2)

But see Peters v. Ashcroft, 383 F.3d 302
(5th Cir. 2004)(soliciting transportation of
drugs for sale is CSO); In re Beltran, 20
I&N Dec. 521 (BIA 1992).
12. Ancillary Offenses:
Aiding and Abetting


Ninth Circuit held where aid/abet statute is
broadly defined to include “encouraging,” it
is not an AF. US v. Corona-Sanchez, 291
F.3d 1201 (9th Cir. 2002). Penuliar v.
Ashcroft, 395 F.3d 1037 (9th Cir. 2005).
Other circuits have not ruled on this. If no
better plea possible, this at least provides
possible argument in immigration court.