I recently presented “EOIR (Removal and Deportation) and Immigration Courts” for the New Jersey Institute of Continuing Legal Education (NJICLE) seminar, “2019 U.S. Immigration Law: Basics & Beyond” hosted by the New Jersey State Bar Association (NJSBA) Immigration Law Section, Labor & Employment Law Section, and International Law and Organizations Special Committee. My presentation addressed what I like to call “CRIMigration.” Here are the top ten frequently asked questions:
Who is CRIMigration applicable to?
CRIMigration is applicable to non-U.S. Citizens or Nationals in the United States. This includes lawful permanent residents (Green Card); lawful temporary aliens (employee, students, visitor, etc.); no lawful status (entry without inspection or overstay); and “protected” (pending asylee, asylee, withholding, DACA, TPS, or DED).
Why is CRIMigration so important right now?
The Trump Administration has transformed immigration from civil to criminal by making the most expansive and far reaching arguments and has limited nonimmigrant ability to defend. The Administration has challenged immigrant-friendly decisions.
What are the different immigration consequences?
There are two immigration consequences, inadmissible and removable. Inadmissible is a “legal fiction.” In other words, just because an immigrant is in the country, it does not mean they are “here” in the eyes of the government. An immigration officer must “inspect” and “admit” an immigrant, otherwise, while present in the U.S., an immigrant is not “legally” present. Now, removable is very “non-fiction.” Non-U.S.Citizens who were “inspected” and “admitted” into the U.S. who fall under INA § 237; lawful permanent residents in the U.S.; lawful temporary aliens; and visa overstays are removable.
So, who is inadmissible? Immigrants who fall under INA § 212; immigrants that have crossed the border without inspection and admission by an immigration officer; those who have snuck in through a cruise ship or cargo hold on an airplane; and certain lawful permanent residents after departing the U.S.
What does a conviction look like?
Conviction is defined as “either formal judgment of guilt has been entered by a court, or adjudication of guilt has been withheld, where judge or jury found the NUSC guilty or the NUSC entered a guilty or nolo contendere plea OR the NUSC admitted sufficient facts to find guilt; and a judge ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Under this statute, conviction must be final for purposes of direct appeal and post-conviction Relief is a collateral attack with no effect on finality. Additionally, it is not conviction if it remains in Juvenile Court.
What are crimes involving moral turpitude (CIMT)?
There is no “real” definition of CIMT, and it is ambiguous to say the least, but the Board of Immigration Appeals defines CIMT as conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” There are a few exceptions to CIMT including petty offense and youthful offenders. Some examples of possible CIMTs include theft – intent to permanently deprive, falsifying government documents, and check fraud.
What are the controlled substance violations?
Controlled Dangerous Substances (CDS) convictions are an independent ground to removal/inadmissibility. CDS must be included on the federal schedule, and if not included, it is not a CDS under INA. As for the unlawful possession of marijuana, possession of less than 30 grams for personal use is not removable, but is inadmissible. In addition, immigration authorities have probative and substantial “reason to believe” that the person has ever participated in drug trafficking.
How about aggravated felonies?
Aggravated felonies are considered “The Immigration Death Sentence,” as there is very limited relief available in immigration court. Aggravated felonies are defined at INA § 101(a)(43), which is expanding every day through DHS arguments to include more and more state statutes. There are three types of aggravated felonies. The first is based on underlying conduct including crimes such as murder, rape, and kidnapping; the second is based on specific monetary amounts including money laundering, fraud, and tax evasion; and the third is based on specific minimum sentence requirements.
And the border?
Improper entry into the U.S. is a “zero tolerance policy.” This includes any alien who enters or attempts to enter the U.S. at a place not designated by immigration officers or eludes examination or inspection or attempts to enter or obtains entry to the United States by a willfully false or misleading representation.
What is the categorical approach?
Reviewing state statutes to determine removability or inadmissibility; comparing the state statute to the federal generic definition of the offense; and comparing the state Statute for CIMT, AF, Firearms, and Controlled Substance offenses. Some state offense elements do not categorically match the federal generic definition; and others do categorically match, therefore you must modify your analysis.
What are some red flags to look for?
Update intake sheets with specific questions and look for red flags in the answers. For example, where you were born? How did you enter the U.S.? What is your current immigration status? Do you have an immigration attorney? Did you ever become a U.S. Citizen? Investigate. Then advise. Or refer.
To learn more about this post or any other immigration matter, please feel free to contact me at email@example.com.