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Criminal Defense of Immigrants § 15.23:
OVERVIEW " PROSECUTORIAL DISCRETION
Immigration Policy Center of the American Immigration Council, Understanding Prosecutorial Discretion in Immigration Law (IPC Fact Check, May, 2011) http://www.immigrationpolicy.org/sites/default/files/docs/Prosecutorial_Discretion_QA.pdf
Tooby's California Post-Conviction Relief for Immigrants § 7.7 ; Post-Conviction Relief for Immigrants § 6.8:
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CRITICAL STAGES OF THE PROCEEDING
The right to effective assistance of counsel applies at every critical stage of the prosecution, including guilty pleas, not merely at trial. Mempa v. Rhay, 389 U.S. 128, 134 (1967); White v. Maryland, 373 U.S. 59, 60 (1963). A guilty plea . . . is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront ones accusers. While a guilty plea may be tactically advantageous for the defendant, the plea is not simply a strategic choice; it is itself a conviction, and the high stakes for the defendant require the utmost solicitude. Florida v. Nixon, 543 U.S. 175, 187 (2004) (citations omitted) (emphasis added). The Supreme Court has held that the Sixth Amendment guarantees effective assistance of counsel at sentence. Mempa v. Rhay, 389 U.S. 128, 137 (1967); see Glover v. United States, 531 U.S. 198, 203-204 (2001)(non-capital sentencing).
Aggravated Felonies § 6.12 ; Criminal Defense of Immigrants § 11.18 ; Crimes of Moral Turpitude § 10.11 ; Post-Conviction Relief for Immigrants § 8.3:
PRACTICE ADVISORY " POST CON RELIEF " TEXAS " GROUNDS " INVALID PLEA " INEFFECTIVE ASSITANCE OF COUNSEL "CONVICTION " DEFERRED ADJUDICATION
Texas law conflicts with federal immigration law as to whether deferred adjudication constitutes a conviction. Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) (Deferred adjudication is not a conviction.). But see Matter of Punu, 22 I. & N. Dec. 224, 230 (B.I.A. 1998) (holding that deferred adjudication in Texas constitutes a conviction for purposes of immigration law). This may give Texas defendants a ground of legal invalidity by which to set aside their convictions, if they were incorrectly informed the Deferred Adjudication disposition does not constitute a conviction, whereas it does constitute a conviction under federal immigration law. This may render the plea not knowing, intelligent, free or voluntary. It may also constitute a ground of ineffective assistance of counsel, in violation of Padilla v. Kentucky, because of affirmative misadvice or failure to advise that this disposition does indeed constitute a conviction for immigration purposes.
Criminal Defense of Immigrants § 20.6 ; Crimes of Moral Turpitude § 8.6, § 9.79:
PRACTICE ADVISORY " MISUSE OF SOCIAL SECURITY NUMBER UNDER 42 U.S.C. 408(a)(7)(B)
The offense of misuse of a social security number, in violation of 42 U.S.C. 408(a)(7)(B), may or may not be considered a crime of moral turpitude. For example, use of the card to open a checking account would not appear to be fraudulent, and thus not a CMT. The statute should therefore be considered divisible. Sale of fraudulent immigration documents is clearly CMT. Matter of Flores, 17 I. & N. Dec. 225, 1980 WL 121870 (BIA 1980). Use or possession of a false social security document with specific intent to defraud is a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). Knowing possession of false immigration documents, however, is not a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). See Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992) which is (erroneously) argued by the Service to have ruled that 408(a)(7)(B) is a CIMT, and the Ninth Circuits decision in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), that found it is not. See Wheeler, The Immigration Consequences of Using A False Social Security Number, 8 Bender's Imm. Bull. 952 (June 1, 2003).
Post-Conviction Relief for Immigrants § 6.51 ; Criminal Defense of Immigrants Appendix 13:
ARTICLE " POST CON RELIEF " FEDERAL PREEMPTION " STATE FORGERY AND PERJURY PROSECUTIONS CANNOT BE BASED ON EVIDENCE OF FALSE STATEMENTS ON FEDERAL I-9 EMPLOYMENT ELIGIBILITY FORMS
Federal immigration law provides penalties for false statements on federal employment eligibility form I-9. Federal law pre-empts state law on this issue. See State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011) (Immigration Reform and Control Act, INA 274A, 8 U.S.C. 1324a (2006), preempts state prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification). Therefore, evidence of false statements on I-9 forms cannot be used in state criminal cases to prosecute defendants for forgery or perjury, because federal statutes pre-empt state legislation on this point. For example, in State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011), the Minnesota Court of Appeals held that 8 U.S.C. 1324a (2006) preempts state criminal prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification. The court reasoned: Whether federal law preempts state prosecution is a question of law subject to de novo review. See Thul v. State, 657 N.W.2d 611, 618 (Minn. App. 2003), review denied (Minn. May 28, 2003). . . . The I-9 form was developed by the United States Attorney General in compliance with IRCA. See 8 U.S.C. 1324a(b)(1)(A) (requiring attestation by employer of eligibility verification on a form designated or established by the Attorney General by regulation); 8 C.F.R. 274a.2(a) (2005) (noting I-9s designation as the form to be used in employment-eligibility verification system). The I-9 form is entitled Employment Eligibility Verification. On it, Reynua provided the name of Laura Romero, along with a social security number and an address, and submitted in support the Minnesota identification card in Romeros name and a social security card, also in Romeros name. On the form, she checked the box indicating that she is a citizen of the United States. IRCA provides that [a] form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of title 18. 8 U.S.C. 1324a(b)(5). The state concedes that this provision of IRCA is broad enough to prohibit even use of the I-9 form in a state prosecution for perjury. We agree, given the congressional intent that is evident in this and other provisions in IRCA to preempt the area of employment-related verification of immigration status. IRCA provides that the employment-eligibility verification system may not be used for law enforcement purposes, other than for enforcement of this chapter or the federal perjury and false-statement provisions also referenced in section 1324a(b)(5). 8 U.S.C. 1324a(d)(2)(F). There is also an express provision preempting state laws imposing sanctions upon those who employ, or recruit or refer unauthorized aliens. 8 U.S.C. 1324a(h)(2). This provision clearly does not apply to the prosecution of an applicant for employment, such as Reynua. But it is further evidence of a general congressional intent to preempt state legislation in the area. The United States Supreme Court recently addressed the preemptive effect of IRCA, holding that the law did not preempt Arizonas unauthorized-alien employment law. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1973 (2011). In dissent, Justice Sotomayor stated that [u]se of the I-9 form is thus limited to federal proceedings, as the majority acknowledges. Id. at 2001. In its opinion, the majority rejected the argument that the Arizona law required an employer to use the I-9 form in order to later claim an affirmative defense. Id. at 1982 n.9. Thus, the majority considered the preemptive effect of section 1324a(b)(5) with respect to sanctions on employers for employing illegal aliens. The Supreme Court in Whiting was addressing the express preemption of state laws sanctioning employers, and, specifically, the exemption within that preemption provision allowing for state licensing laws. See id. at 1977-78. The Whiting Court was not dealing with federal immigration provisions directed at unauthorized aliens, or employment applicants, but rather an express reservation to the states of licensing provisions directed at employers. See id. at 1987. The Courts opinion does not hold that IRCA lacks a general preemptive intent, and specifically notes the ways in which the state statute at issue conformed to federal law. See id. Thus, there is nothing in the Whiting opinion inconsistent with our conclusion that use of the I-9 form in a state perjury prosecution is preempted by IRCA. A state law is preempted if the state law obstructs the accomplishment of the full purposes and objectives of the federal legislation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct. 615, 621 (1984). IRCA largely targets employers for the sanctions it imposes. Only the federal perjury and false-statement provisions referenced in section 1324a(b)(5) are aimed at the employee. See United States v. Arizona, 641 F.3d 339, 358 (9th Cir. 2011). But those federal statutes would be enforced by federal authorities, not local prosecutors in 50 different states. And, as the Ninth Circuit noted in United States v. Arizona, the federal act evidences Congress intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Id. at 352. The enforcement of Minnesotas perjury statute is not subject to that direction and supervision. Moreover, state perjury prosecutions could shift the illegal-immigration enforcement focus from the employer to the employee. Thus, a Minnesota perjury prosecution for false statements on the I-9 form would tend to obstruct the full purposes and objectives of IRCA. The same analysis does not apply to the simple-forgery charge based on the use of the Minnesota identification card. Here, we follow the general principle that [w]hen federal laws do preempt conflicting state laws, the state laws are preempted only to the extent that they are in conflict with federal law. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 11 (Minn. 2002). IRCA bars use of the I-9 form and any information contained in or appended to such form for purposes other than enforcement of the federal immigration statute and the federal perjury and false-statement provisions. 8 U.S.C. 1324a(b)(5). But we cannot read this provision so broadly as to preempt a state from enforcing its laws relating to its own identification documents. We conclude that the state, for example, is not barred from prosecuting the crime of display or possession of a fictitious or fraudulently altered Minnesota identification card, Minn. Stat. 171.22, subd. 1(2), merely because that card has been presented in support of an I-9 federal employment-eligibility verification form. There is a general presumption that the historic police powers of the State are not superseded by federal legislation unless that was the clear and manifest purpose of Congress. Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quotation omitted). Section 1324a(b)(5) prohibits non-federal use of information appended to the I-9 form. That language does not exhibit a clear and manifest purpose to bar enforcement of state laws pertaining to state identification cards. It would be a significant limitation on state powers to preempt prosecution of state laws prohibiting falsification of state issued identification cards, let alone to prohibit all use of such cards merely because they are also used to support the federal employment-verification application. See generally Minn. Stat. 609.63, subd. 1(1) (prohibiting use of false writing for identification), .652, subd. 2 (prohibiting various acts in creating false identification cards for profit) (2010). (Id. at ___.) The same reasoning " based on nationwide federal law " would also require the same result in California criminal cases.
Aggravated Felonies § 3.6 ; Criminal Defense of Immigrants § 3.19 ; Safe Havens § 4.7:
AMERICAN INDIANS
American Indians born in Canada who declare an intention to live or work in the United States must be granted the freedom to do so under the Jay Treaty. They must go through a registration process. The U.S. Embassy in Ottawa provides the following information: Subsection 289.3 of the Combined Federal Regulations (8 CFR PART 289) provides guidance requiring that any Canadian-born American Indian who declares an intention to move to the U.S. and reside or work, that upon initial entry at a land-border Port of Entry, they must declare the intention to live and/or work in the U.S., provide CBP with documentation proving American Indian status, and complete an Application to Register Permanent Residence or Adjust Status (Form I-485). (http://canada.usembassy.gov/visas/information-for-canadians/first-nations-and-native-americans.html). Immigration regulations require that the person prove 50% American Indian blood quantum to qualify for a green card. Not everyone who has a tribal card can show the requisite blood quantum. Filing an I-485 begins the process in which a Canadian-born American Indian is afforded lawful permanent residence. This process is not an application for status, but is the initial action required to convey the appropriate status authorized under the Jay Treaty. An excerpt from the Inspector's Field Manual on the process at the border states: 11.3 American Indians Born in Canada. An American Indian born in Canada, with 50% American Indian blood, cannot be denied admission to the United States. The applicant bears the burden of proof in establishing eligibility. Usually, this is accomplished by presenting identification such as a tribal certification that is based on reliable tribal records, birth certificates, and other documents establishing the requisite percentage of Indian blood. The Canadian Certificate of Indian Status (Form IA-1395) issued by the Canadian Department of Indian Affairs in Ottawa specifies the tribal affiliation but does not indicate percentage of Indian blood. Membership in an Indian tribe in Canada does not necessarily require Indian blood. Once the claim to 50% Indian blood has been established, the applicant can freely enter the U.S., regardless of the purpose or duration of the trip, even if technically excludable or previously deported. If such person is entering to reside permanently in the U.S., Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence, must be executed. The words "Canadian-born American Indian admitted for permanent residence" must be endorsed on the I-181. Under the box marked "Other Law" indicate section 289 of INA. Complete Form I-89, Data Collection Card, including fingerprint , proper photograph, and other required data. The admission classification is S13. An "A" file may be created at the port-of-entry and forwarded to the district office for data entry into Central Index or the I-181 and I-89 may be forwarded directly to the Immigration Card Facility for creation of the file and card production. Issue a temporary I-551 using Form I-94 See USCIS's instructions from the AFM. http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-8624/0-0-0-10065.html#0-0-0-439 A Canadian-born American Indian cannot be denied LPR status, but is required to complete the I-485 in order to receive any benefits under U.S. federal law. Recipients are entitled to all rights and privileges accorded legal immigrants to the United States, including if they desire, eventual naturalization as American citizens and the right to sponsor immediate family members into the United States. Thanks to Mark R. Barr.
Aggravated Felonies § 2.44 ; Criminal Defense of Immigrants § 24.28 ; Crimes of Moral Turpitude § 3.43:
RELIEF " INA 212(c) WAIVER " COMPARABLE GROUNDS
Immigrant Defense Project, the National Immigration Project of the National Lawyers Guild, and the American Immigration Councils Legal Action Center, Practice Advisory, Implications of Judulang v. Holder for LPRs Seeking 212(c) Relief and for Other Individuals Challenging Arbitrary Agency Policies http://www.legalactioncenter.org/sites/default/files/Judulang-212-c-relief.pdf
Criminal Defense of Immigrants § 3.42 ; Safe Havens § 5.20:
FINDING IMMIGRATION COUNSEL
The Immigration Advocates Network (IAN) is excited to announce the launch of ImmigrationLawHelp.org (www.immigrationlawhelp.org), a new website to help low-income immigrants find free or low-cost legal help. The website provides information about more than 900 nonprofit immigration legal services providers in all 50 states. Using data from IAN's recently launched National Immigration Legal Services Directory http://www.immigrationadvocates.org/nonprofit/legaldirectory), ImmigrationLawHelp.org was designed to address the lack of reliable information available to low-income immigrants by providing an easy-to-use online directory of legal services providers. In addition to the ability to search for nonprofit legal services by state, county, and detention facility, the website allows users to find organizations by languages spoken, types of legal and other services provided, and specific areas of legal assistance. It is available in English and Spanish.
Post-Conviction Relief for Immigrants § 4.11:
POST CON RELIEF " NUNC PRO TUNC ORDERS
The notion of court orders nunc pro tunc is a very vague equitable doctrine. Even if counsel obtains a nunc pro tunc order in criminal court, there is no guarantee at all the immigration court will reach the criminal courts conclusion that the order or plea was entered on the backdated date c.f. United States v. Esparza, 678 F.3d 389, (5th Cir. Apr. 20, 2012) (record evidence is sufficient to justify the trial judge's conclusion that Esparza was an alien at the time of his reentry, and the nunc pro tunc divorce decree obtained in 2010 purporting to retroactively rearrange Esparza's custody status in 1994 does not raise a reasonable doubt as to his alienage). The immigration courts generally follow federal immigration law on these questions, rather than the vagaries of the law of the 50 states, because of a desire for national uniformity. On the other hand, it is possible for immigration counsel to argue that the immigration courts are bound to honor the final judgment of a state court under the Full Faith and Credit doctrine. Because of this question, however, counsel should ask whether they really need an order to be entered nunc pro tunc. If there is no strong immigration need to backdate the order or plea, perhaps it is better not to ask that the state court act nunc pro tunc. If it is really necessary to backdate an order or plea, the best argument might be that the law requires that the state and immigration courts place the defendant back in the same position he or she would have occupied if the error had not been made, i.e., with the opportunity to enter the same plea he or she would have had if the ineffective assistance of counsel or the courts error in giving the mandatory immigration advice had not been made. The United States Supreme Court recently referred to this obligation in Lafler v. Cooper, 556 U.S. ___, 132 S. Ct.1376 (Mar. 21, 2012). In that case, the court addressed the question of prejudice where defense counsel rendered ineffective assistance of counsel during plea bargaining, where in rejecting an offer of a 51-to-85-month sentence, defense counsel misadvised the defendant that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist, and he went to trial, was convicted on all counts, and received a mandatory minimum 185-to-360-month sentence. The court addressed the general question of the appropriate remedy where ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence: Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must neutralize the taint of a constitutional violation, id., at 365 . . . . (Id. at 1388.) This argument might also be used in the context of a California Penal Code 1016.5 error, where justice also requires the court to place the defendant in the same position he or she would have occupied absent the error. The federal courts of appeals, including the Ninth Circuit, have also held in the immigration ineffective assistance of counsel context, that the remedy must place the client in the same position he or she would have occupied, as far as the timing of relief is concerned, that they would have faced if counsel had not made the error. One case involved the one-year deadline for filing a political asylum claim, and held that even though the court finding of ineffective assistance of counsel was made many years later, when the deadline had long since passed, the court ordered the immigration authorities to accept the political asylum claim as though it had been timely filed within the one-year statute of limitations. The BIA has issued nunc pro tunc remedies in cases going back for more than 50 years ... [to] achieve equitable results serving the interests of the agency and the individual alike. In re Lei, 22 I. & N. Dec. 113, 132 (BIA 1998). Federal courts also rel[y] on the doctrine, in order to return aliens to the position in which they would have been, but for a significant error in their immigration proceedings. Edwards v. I.N.S., 393 F.3d 299, 308"09 (2d Cir.2004). When agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit such as the opportunity to seek a particular form of deportation relief, courts apply the doctrine in immigration cases so the error [can] be remedied nunc pro tunc. Id. at 310"311; see also Batanic v. I.N.S., 12 F.3d 662, 667 (7th Cir.1993) (granting a noncitizen asylum nunc pro tunc, when procedural defects in his removal proceeding coupled with an intervening statutory change made him otherwise ineligible for asylum); De Cardenas v. Reno, 278 F.Supp.2d 284, 294 (D.Conn.2003) (remanding a case to the BIA with directions to enter relief from deportation nunc pro tunc, given administrative oversights and procedural defects [had] deprived [petitioner] of an important opportunity to make her case for section 212(c) relief).
Aggravated Felonies § 2.37 ; Criminal Defense of Immigrants § 24.25 ; Crimes of Moral Turpitude § 3.36:
DEFERRED ACTION " DREAM ACT " PRACTICE ADVISORY
American Immigration Council, Legal Action Center and National Immigration Project of the National Lawyers Guild, Practice Advisory, Deferred Action For Childhood Arrivals (Aug. 20, 2012), http://www.legalactioncenter.org/sites/default/files/practice_advisory_dreamers_8-13-12_fin_0.pdf The Legal Action Center (LAC) released an updated version of the Practice Advisory, Deferred Action for Childhood Arrivals, which includes links to the application forms and updated information about the application process This Practice Advisory analyzes DHS guidance regarding the eligibility criteria and application process for the Obama administrations initiative to grant deferred action to certain individuals who came to the United States as children. It also offers strategic advice for attorneys representing individuals who may qualify for deferred action for childhood arrivals. The LAC issued this advisory jointly with the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild.
Aggravated Felonies § 2.28 ; Criminal Defense of Immigrants § 24.17 ; Crimes of Moral Turpitude § 3.27:
RELIEF " VISAS " U VISAS " STATISTICS
U.S. Citizenship and Immigration Services announced in late August 2012 that it had approved 10,000 U visas, the annual statutory maximum. The U visa is for victims of certain crimes who are helpful with law enforcement investigations or prosecutions. An approved visa allows the person to remain in the U.S., get a work permit, and eventually apply for legal residency. 10,000 U visas were issued throughout this fiscal year, which ends on September 30, 2012. The Vermont Service Center reports that it is currently "preprocessing" U applications, and plans to send out approvals and work authorization to those pre-approved, after the first of October. - Guidance from ASISTA on how to proceed now that USCIS has reached the 10,000 cap on principal U visas for this fiscal year, which also addresses derivatives and requests for Deferred Action for Childhood Arrivals (DACA), at http://www.immigrationadvocates.org/link.cfm?20120. - A practice advisory from ASISTA on the intersection of Deferred Action for Childhood Arrivals (DACA) and U visa derivatives at http://www.immigrationadvocates.org/link.cfm?20121. - A practice advisory from the Immigrant Legal Resource Center on the U nonimmigrant status eligibility requirements for children and youth at http://www.immigrationadvocates.org/link.cfm?20122. Podcast: - Gail Pendleton of ASISTA discusses how to work with Local Enforcement Agencies on U Visa Certifications at http://www.immigrationadvocates.org/link.cfm?19421. Other Resources: ASISTA ASISTA provides a resource page on U Visas that includes tips for filing, regulations, checklists for clients, case law, guidance for different procedural postures, and more at http://www.asistahelp.org/index.cfm?nodeID=23546&audienceID=1. Catholic Legal Immigration Network The Catholic Legal Immigration Network, Inc. (CLINIC) offers a Spanish U visa fact sheet for clients at http://cliniclegal.org/sites/default/files/UVisa%20Flier%20Sp.pdf. Legal Momentum Legal Momentum has a resource page on U visa training materials and tools at http://iwp.legalmomentum.org/immigration/u-visa/tools. U.S. Citizenship and Immigration Services The U.S. Citizenship and Immigration Services (USCIS) provides a webpage with information on U visas, including basic requirements, questions and answers, and links to other resources at http://1.usa.gov/aqBYoi.
Criminal Defense of Immigrants § 15.26:
REMOVAL PROCEEDINGS " EVIDENCE " FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A person in removal proceedings is entitled to assert his/her right against self-incrimination under the Fifth Amendment due to any potential criminal charges arising from any admission of alienage, entry without inspection, or other factual matters alleged in the Notice to Appear. Matter of Sandoval, 17 I&N Dec. 70, 72, n.1 (BIA 1979). Has your client carried his LPR card with him each and every moment since he became an LPR? If not, an admission to alienage on the stand would establish an essential element of an offense under 8 U.S.C. 304. Has he always filed a change of address within 10 days of moving? If not, admission of alienage under oath would establish an essential element of an offense under 8 U.S.C. 305. These are criminal offenses under the penalty provisions of 8 U.S.C. 306. If an answer to the question might provide a link in the chain of evidence necessary to convict the client of a criminal offense under any of the following statutes, the claim of privilege should be sustained: INA 266(a) and (b) " willful failure to register or provide change of address INA 275 " improper entry INA 276(a) " entering, attempting to enter, or being found in the US after removal IJ or DHS cannot offer immunity " only the Attorney General can in writing. Thanks to Bruce D. Nestor.
Criminal Defense of Immigrants § 3.24:
BIBLIOGRAPHY " (NON-IMMIGRATION) COLLATERAL CONSEQUENCES WEBSITE
The ABA has created a website that lists collateral consequences of criminal convictions (other than immigration consequences) that exist under laws of Vermont, Minnesota, Iowa, Nevada, Texas, Wisconsin, South Carolina, New York, and federal crimes. The ABA will add consequences from other state jurisdictions. This valuable resource addresses how a conviction will impact housing, government benefits, civic participation, and a whole range of other areas. Holistic legal practitioners and criminal defense practitioners who want to follow best practices will be sure to bookmark this site. http://www.abacollateralconsequences.org/CollateralConsequences/map.jsp
Tooby's California Post-Conviction Relief for Immigrants § 12.5:
CAL POST CON " CORRECTING STATE CRIMINAL HISTORY
Penal Code 11126(c) (provides for a hearing after denial of a request to correct California criminal history; no specific requirement on how fast the Department of Justice must investigate the claim in Sections (a) and (b)). http://oag.ca.gov/sites/all/files/pdfs/fingerprints/forms/BCIA_8705.pdf
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Post-Conviction Relief for Immigrants: §8.43
Cir. 2001) (foreign expungement effective by analogy to FFOA, distinguishing foreign pardons). Cf. Matter
Tooby's California Post-Conviction Relief for Immigrants: §3.18
Adverse Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] ... Generally, the client must be given full credit against any new sentence for the time... practical matter, because of the law requiring credit for time served, and because the case... court would in fact resentence the client to a greater punishment after reconviction unless the court were required to do so by mandatory sentencing laws. ... aware of this risk when deciding whether to go forward with an attack on the... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence.
Post-Conviction Relief for Immigrants: §7.7
a condition of probation, it is necessary to reduce or vacate that sentence in order to avoid the most serious immigration consequences any... sentence has been vacated, it is necessary to persuade the court to (a) suspend imposition of sentence (or use equivalent state procedure so that no prison sentence at all is ordered to be served), and to require service of 364 days in custody... techniques by which courts may be persuaded to enlarge the category of offenses in which to impose 364-day sentences are: (a) waiving pre-sentence credit for time served, in return for a... different counts, even if they are ordered to be served consecutively. [1] [1] See generally
Aggravated Felonies: §5.78
‘theft,’ thus indicating that the phrase ought to be read to incorporate different but closely related constructions in... a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and... prohibiting taking another’s vehicle with the intent to deprive the person of it permanently (auto theft) or temporarily (often referred to as “joyriding”), was an aggravated felony “theft offense.” Second Circuit. Deferring to the BIA definition of theft, the Second... found that taking emergency calls not directed to the defendant constituted “theft” because the noncitizen... its benefits [$300-500 charge of transporting someone to a hospital] to someone not entitled to them. Thus, we conclude that the... the offense of fraudulent use of a credit card, committed by falsely representing a credit card belonging to another as one’s own, with an intent to obtain property, was not an aggravated felony... property without consent with the criminal intent to deprive the owner of the rights and... burglary of a vehicle with the intent to commit theft therein did not constitute a... was only convicted of having the intent to commit theft rather than for actually having... with the BIA interpretation. Theft, according to the court, is “the taking of property... property without consent with the criminal intent to deprive the owner of rights and benefits... that under the Model Penal Code, coming to essentially the same conclusion as the BIA in Matter of VZS , that a temporary taking is sufficient to constitute theft. Eighth Circuit. The Eighth Circuit, refusing to adopt the Seventh Circuit’s definition of “theft... “theft offense.” [15] Rather than looking to the language of the statute itself, the court determined that the Iowa legislature intended the offense to be considered “theft” simply because it was... involved fraud [17] (and “misappropriation” as opposed to “deprivation” [18] ), the court found that... statute could be committed without any intent to commit theft. [25] Similarly, the Ninth... that could be violated without any intent to commit theft. [26] The court stated:... the generic definition is the criminal intent to deprive the owner. The Arizona statute requires... the contract or by returning the car to an airport not identified in the contract.... a college student driving his dad’s car to a destination other than that for which... rental cars are fungible (a case familiar to the author of this opinion). The examples... statute does not require an intent permanently to deprive the owner of the property. [28]... since the statute punished taking with intent to “appropriate the property to his or her own use or to the use of any person not entitled to the use of the property,” as well as intent to deprive another person of the right to the property. Adopting the BIA definition of “theft offense,” the court recognized that an intent to “appropriate” was not the same the intent to “deprive” required to constitute an aggravated felony theft offense. ... Iowa Code § 715A.8. (“with the intent to obtain a benefit fraudulently obtains identification information of another person and uses or attempts to use that information to obtain credit, property or services without the authorization of... v. Temporary Deprivation . Most courts to address the issue have found that the... includes the taking of property with intent to temporarily deprive the owner of the rights... is mistaken in including offenses lacking intent to permanently deprive within the definition of a... aggravated felony definition should be interpreted according to their “ordinary, contemporary, and common meaning.” [1]... universally requires as an element the intent to permanently deprive the owner of property, or to approximate a permanent deprivation, under common law,... and generally under state law. [2] To support its conclusion that joyriding can amount to theft, the majority decision relied not upon... on a particular federal statute that relates to taking stolen cars across state borders. This ruling therefore appears to be in error. However, because this... owed Chevron deference, [3] counsel will need to show that the BIA definition is not... banc ) (federal, not state, definition applies to determine whether a state drug offense is... (9th Cir. 1994) (the INA “was designed to implement a uniform federal policy, and the meaning of concepts important to its application are ‘not to be determined according to the law of the forum, but rather... times or of great length could amount to theft, casual joyriding does not). See... was an overbroad divisible statute, with respect to the generic definition of “theft” employed in... of services, [3] and (b) causing another to produce a false credit report. [4] Even where the circuit... WL 21418375 (9th Cir. June 19, 2003) (No. 02-71167 unreported) ( California conviction of theft... of Penal Code § 368(d), held not to be an aggravated felony, since it penalizes... 2002) ( en banc ). (D) Non-Theft Offenses. Some offenses may appear similar to theft, but in fact do not involve... burglary does not necessarily involve the intent to commit theft. Similarly, “identity theft” may... (4th Cir. Aug. 22, 2005). (E) Non-Substantive Offenses . There appear to be a number of theft statutes that... of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself). (G) Relationship to Other Grounds. The Third Circuit has... of the fraud category must be met to trigger deportation as an aggravated felony. [1]... sentence from a minimum of six months to a maximum of 23 months, does not... aggravated felony fraud conviction, since the loss to the victim was under $10,000, and because
Criminal Defense of Immigrants: §5.41
Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] Generally, the client must be given full credit against any new sentence for the time... is fairly easy, however, for the prosecution to circumvent them by pointing to some new fact that occurred since the... of the defendant’s exercise of constitutional right to reopen a defective conviction. As a practical matter, because of the law requiring credit for time served, and because the case... court would in fact resentence the client to a greater punishment after reconviction, unless the court were required to do so by mandatory sentencing laws. ... aware of this risk when deciding whether to go forward with an attack on the... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence.
Safe Havens: §5.14
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “U.S. Treasury”). This information should be sent to: Attn: Special Correspondence Unit Federal Bureau of... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes five weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client’s fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Post-Conviction Relief for Immigrants: §10.6
immigration purposes. It returns the client to the position s/he occupied immediately prior to the conviction, and all original charges, even... convictions, and some risk of being sentenced to a greater sentence than the original sentence,... . [1] Counsel should be prepared to argue that the client cannot legally receive... and that the client must be given credit for all time served, and all other
Post-Conviction Relief for Immigrants: §3.18
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “U.S. Treasury”). This information should be sent to: Attn: Special Correspondence Unit Federal Bureau... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes five weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client's fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Crimes of Moral Turpitude: §3.26
temporary and potential lawful permanent resident status to victims of alien trafficking, was added to the INA as a part of the
Post-Conviction Relief for Immigrants: §2.18
Adverse Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] ... Generally, the client must be given full credit against any new sentence for the time... is fairly easy, however, for the prosecution to circumvent them by pointing to some new fact that occurred since the... of the defendant’s exercise of constitutional right to reopen a defective conviction. As a practical matter, because of the law requiring credit for time served, and because the case... court would in fact resentence the client to a greater punishment after reconviction, unless the court were required to do so by mandatory sentencing laws. ... aware of this risk when deciding whether to go forward with an attack on the... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence.
Post-Conviction Relief for Immigrants: §5.17
if it finds “fair and just reason” to do so, which is a liberal, equitable standard. It is broad enough to include the ground that the defendant did... imagine that a court might be willing to grant leave to withdraw under this circumstance [of post-plea realization... a plea can also constitute sufficient grounds to grant a pre-sentence motion to withdraw a guilty plea under Rule 32(e).... (defendant demonstrated a fair and just reason to withdraw a guilty plea entered six months
Criminal Defense of Immigrants: §17.30
supra , for a discussion of relevant non -crime related grounds of deportation, such being
Criminal Defense of Immigrants: §11.54
Adverse Criminal Consequences The client may hesitate to attempt to set aside a plea if the risk... It may be necessary for immigration counsel to consult experienced criminal defense counsel in order to determine the magnitude of this risk, but... greater charges and may potentially be sentenced to a greater term of imprisonment. [2] ... Generally, the client must be given full credit against any new sentence for the time... is fairly easy, however, for the prosecution to circumvent them by pointing to some new fact that occurred since the... of the defendant’s exercise of constitutional right to reopen a defective conviction. As a practical matter, because of the law requiring credit for time served, and because the case... court would in fact resentence the client to a greater punishment after reconviction, unless the court were required to do so by mandatory sentencing laws. ... aware of this risk when deciding whether to go forward with an attack on the... enhancements, the law may require the court to impose greater punishment. For example, in... a drug offense, the client originally pleaded to the drug offense and received probation on... The court likely would have felt compelled to sentence the client to prison, and the enhancement would have resulted... these circumstances, the client may not wish to risk the additional prison time that might... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence.
Crimes of Moral Turpitude: §3.2
or Youthful Offender Exception, will give rise to inadmissibility. A noncitizen who committed more... § 212(h) before s/he will be allowed to obtain adjustment of status. Adjustment of... resident relative, or an employer, without having to travel outside the United States. [1] Any noncitizen who is eligible to adjust, is not inadmissible, and has an immigrant visa immediately available may be allowed to adjust. It is also possible to obtain lawful permanent resident status by travelling... status application simultaneously. [2] Those subject to the preference quota system [3] may face a wait of months or years before being able to immigrate, with their place in line determined... one who has a U.S. citizen spouse) to “re-immigrate” by filing an application for adjustment of status in removal proceedings as a defense to deportation. [5] If granted, the renewed adjustment of status will be a complete defense to removal. [6] In some circumstances,... visa petitions filed on their behalf prior to April 30, 2001, may be able to adjust status to a lawful permanent resident. [7] However, a noncitizen subject to a reinstated order of removal is not eligible to adjust status. [8] Nor, generally, is... or Youthful Offender Exception, will give rise to inadmissibility. See §§ 4.5-4.7, supra .... § 212(h) before s/he will be allowed to obtain adjustment of status. See §... minors from petitioning for any family member to become a lawful permanent resident. [18] ... the DHS determines that the petitioner poses no risk to the person seeking LPR status. [19] Adjustment... waiver allowed for asylees and refugees seeking to adjust status is discussed at § 3.30,... petitioner does not fall within any exception to this statute). [9] Matter of Lemus-Losa ,... 8 U.S.C. § 1255(i) (2000), is unavailable to a noncitizen who is inadmissible under INA... deportation, under INA § 212(a)(9)(C), is ineligible to adjust status under the LIFE Act); Duran-Gonzales... applies even if I-212 petition for permission to re-enter following removal was filed prior to DHS filing to reinstate prior removal order), reversing Perez-Gonzalez v. Ashcroft , 379 F.3d 783 (9th Cir. 2004), deferring to BIA decision Matter of Torres-Garcia , 23... plaintiffs ineligible as a matter of law to adjust their status because they are ineligible to receive I-212 waivers, because they have illegally... 8 U.S.C. § 1255(i), is not available to a noncitizen who is inadmissible under unlawful... 8 U.S.C. § 1255(i) does not apply to noncitizens inadmissible to the United States under INA § 212(a)(9)(C)(i)(I),... Cir. Oct. 18, 2005) (LIFE Act applies to status violators who have been in the... unlawful during the pendency of an application to adjust status; mere fact that he has received permission to work in the country does not alter... reversed and remanded based on BIA’s failure to consider rehabilitation). [13] Adjustment of status occurs... 2005) (where DHS erroneously granted LPR status to noncitizen who had prior controlled substance/aggravated felony... § 1182(c) is available as a defense to deportation). [16] Adam Walsh Child Protection and... (P.L. 109-248), available at AILA InfoNet Doc. No. 07012564 (posted Jan. 25, 2007). [17] As
Tooby's California Post-Conviction Relief for Immigrants: §6.11
state-court decision vacating a drug conviction pursuant to a writ of audita querela did not... BIA was correct in denying the motion to reopen deportation proceedings to allow application for adjustment of status, and... it is improper for a federal court to grant a writ of audita querela , where no legal defect in a federal conviction appears,... (1) The federal law referred to states the federal court may not grant... federal writs. Each sovereign is free to set its own standards in this area.... (3) Not surprisingly, the Ninth Circuit cited no authority for the dubious proposition quoted above.... conviction, the federal immigration court is required to accept the final state-court judgment which cannot... state erases the state conviction, then it no longer exists to trigger them. Even if the Beltran-Leon decision governs, it should have practically no impact on the day-to-day work of obtaining post-conviction relief for immigrants, since the decision can be distinguished as limited to audita querela cases. [5] Moreover,... words of the court in Beltran , to “identify [a] new defense or legal defect in the criminal proceedings” (thus providing a ground on which to distinguish Beltran ). The petitioner in... conviction be set aside solely in order to prevent deportation . . . .” And the normal habeas, coram nobis , or motion to vacate proceeding will therefore “remove the legal... federal [immigration] law.” [6] In order to ensure that an order vacating a conviction... court, the face of the documents (equivalent to the “record of conviction”) must establish that... adverse immigration consequences are also made known to the criminal court that issued the order,... I. & N. Dec. 1378 (BIA 2000)(referring to federal obligation to give full faith and credit to state court judgments). [5] In Lujan-Armendariz v.... th Cir. 2000), the court was careful to limit Beltran-Leon to its facts: “At oral argument, INS... rule that guilt is sufficient, without more, to support a removal order. Of course, if that were true with respect to offenses covered by the Federal First Offenders... that for a writ of audita querela to issue, there must be a legal defect
Criminal Defense of Immigrants: §21.1
. A conviction is not required to trigger a number of these grounds, even if your client has a green card (i.e., LPR status). See §§ 21.5-21.7,... your client is safe if there is no conviction. [3] Do: ü Avoid... ü Know whether your client needs to avoid inadmissibility or deportability. [6] ü ... excluded even if s/he has a green card. ü Try to obtain a dismissal of charges without entering a plea or making an admission of sufficient facts to warrant a conviction. [7] Possible defense... of the controlled substance involved, or pleading to a substance not listed in the federal schedules. [9] · Pleading to an offense not related to drug trafficking. [10] · Pleading to a state offense that does not exist under federal law. [11] · Pleading to accessory after the fact, misprision of a felony, or solicitation. [12] · Pleading to simple possession. [13] · Pleading to simple possession of under 30 grams of... clients will need different solutions; there is no one universal solution, not even dismissal. ... the goal of defense counsel may be to minimize the effects of the conviction or conduct, to allow the noncitizen to apply for relief in immigration court. ... 21.30-21.37 discuss certain “safe havens” specifically relevant to controlled substances convictions. Sections 21.38-21.40 discuss... removability. [1] Even a misdemeanor is sufficient to cause immigration problems in most cases. ... [6] See § 15.5, supra . [7] To keep the DHS from using the arrest
Crimes of Moral Turpitude: §10.3
conviction originally came into existence is effective to eliminate the conviction for immigration purposes. See... infra . The Full Faith and Credit doctrine precludes immigration courts from looking behind... is possible, however, for the immigration authorities to argue that a conviction vacated by a court which lacked jurisdiction to enter the vacatur continues to exist for immigration purposes. See §... grounds of legal invalidity may be used to vacate convictions for immigration purposes. See
Criminal Defense of Immigrants: §11.34
Matching the Vehicle to the Immigration Effect Counsel must first determine what change in the criminal history is needed in order to avoid or ameliorate the adverse immigration effect to which the client is subject. For... of violence aggravated felony, then a motion to reduce a felony to a misdemeanor may be sufficient to avert the immigration damage. If time is needed to assess the situation, it may be possible to file a direct appeal from the conviction, in order to avoid a “final” conviction and thus obtain the client’s release from mandatory immigration detention and buy time to plan a more durable strategy. ... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality
Criminal Defense of Immigrants: §10.7
Relationship to Plea Bargaining Sometimes, a plea bargain determines the sentence, so no discretion is left to the court to make different sentence choices. Under those... counsel must do the analysis and argument to obtain an immigration-safe sentence during plea bargaining.... plea bargaining, and defense counsel is free to attempt, by means of the techniques identified in this chapter, to protect the defendant against immigration consequences by... sometimes argues that the plea bargain continues to dictate the sentence, so the particular post-conviction... initial sentence, the court thereafter has discretion to modify the sentence in the interests of... (2d App. Dist. Oct. 26, 2006) (error to deny motion to reduce 365-day sentence imposed as probation condition in the mistaken belief that the court lacked jurisdiction to alter jail term because it had been... that “a trial court enjoys continuing jurisdiction to modify terms and conditions of probation, even
Criminal Defense of Immigrants: §19.94
‘theft,’ thus indicating that the phrase ought to be read to incorporate different but closely related constructions in... definition of “theft offense,” remanding the case to the Ninth Circuit to answer the questions of whether that definition... a ‘theft’ whenever there is criminal intent to deprive the owner of the rights and... of taking another’s vehicle with the intent to deprive the person of it permanently (auto theft) or temporarily (often referred to as “joyriding”) [9] , was an aggravated felony “theft offense.” Second Circuit. Deferring to the BIA definition of theft, the Second... found that taking emergency calls not directed to the defendant constituted “theft” because the noncitizen... benefits [the $300-500 charge of transporting someone to a hospital] to someone not entitled to them. Thus, we conclude that the... the offense of fraudulent use of a credit card, committed by falsely representing a credit card belonging to another as one’s own, with an intent to obtain property, was not an aggravated felony... property without consent with the criminal intent to deprive the owner of the rights and... burglary of a vehicle with the intent to commit theft therein [19] did not constitute... was only convicted of having the intent to commit theft rather than for actually having... with the BIA interpretation. Theft, according to the court, is “the taking of property... property without consent with the criminal intent to deprive the owner of rights and benefits... that of the Model Penal Code, coming to essentially the same conclusion as the BIA... that a temporary taking may be sufficient to constitute theft. Eighth Circuit. The Eighth Circuit, refusing to adopt the Seventh Circuit’s definition of “theft... “theft offense.” [23] Rather than looking to the language of the statute itself, the court determined that the Iowa legislature intended the offense to be considered “theft” simply because it was... rule that a state label is irrelevant to this question of federal law. [24] ... involved fraud [25] (and “misappropriation” as opposed to “deprivation” [26] ), the court found that... statute could be committed without any intent to commit theft. [33] Similarly, the Ninth... that could be violated without any intent to commit theft. [34] The court stated:... the generic definition is the criminal intent to deprive the owner. The Arizona statute requires... the contract or by returning the car to an airport not identified in the contract.... a college student driving his dad’s car to a destination other than that for which... rental cars are fungible (a case familiar to the author of this opinion). The examples... statute does not require an intent permanently to deprive the owner of the property. [36]... Court remanded a case under this statute to the Ninth Circuit. The court did... definition of “theft offense,” remanding the case to the Ninth Circuit to answer the questions of whether that definition... since the statute punished taking with intent to “appropriate the property to his or her own use or to the use of any person not entitled to the use of the property,” as well as intent to deprive another person of the right to the property. Adopting the BIA definition of “theft offense,” the court recognized that an intent to “appropriate” was not the same the intent to “deprive” required to constitute an aggravated felony theft offense. ... [5] Id. at 820. See Appendix A to the opinion, citing the 50 state aiding... 10851, constitutes an aggravated felony; “the intent to make a less than permanent, i.e., temporary,... Iowa Code § 715A.8. (“with the intent to obtain a benefit fraudulently obtains identification information of another person and uses or attempts to use that information to obtain credit, property or services without the authorization of... v. Temporary Deprivation . Most courts to address the issue have found that the... includes the taking of property with intent to temporarily deprive the owner of the rights... is mistaken in including offenses lacking intent to permanently deprive within the definition of a... aggravated felony definition should be interpreted according to their “ordinary, contemporary, and common meaning.” [1]... universally requires as an element the intent to permanently deprive the owner of property, or to approximate a permanent deprivation, under common law,... and generally under state law. [2] To support its conclusion that joyriding can amount to theft, the majority decision relied not upon... on a particular federal statute that relates to taking stolen cars across state borders. This ruling therefore appears to be in error. However, because this... is owed Chevron deference, counsel will need to show that the BIA definition is not... banc ) (federal, not state, definition applies to determine whether a state drug offense is... (9th Cir. 1994) (the INA “was designed to implement a uniform federal policy, and the meaning of concepts important to its application are ‘not to be determined according to the law of the forum, but rather... times or of great length could amount to theft, casual joyriding does not). See... was an overbroad divisible statute, with respect to the generic definition of “theft” employed in... of services, [3] and (b) causing another to produce a false credit report. [4] Even where the circuit... § 1101(a)(43)(G). [3] Macapagal v. INS , No. 02-71167 (9th Cir. June 19, 2003) (unpublished)... of Penal Code § 368(d), held not to be an aggravated felony, since it penalizes... 2002) ( en banc ). (D) Non-Theft Offenses. Some offenses may appear similar to theft, but in fact do not involve... burglary does not necessarily involve the intent to commit theft. It can be committed with intent to commit a non-theft offense. Similarly, “identity theft” may not... of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself). [2]... aggravated felony theft offense). (F) Relationship to Other Grounds. The Third Circuit has... of the fraud category must be met to trigger deportation as an aggravated felony. [1]... sentence from a minimum of six months to a maximum of 23 months, does not... aggravated felony fraud conviction, since the loss to the victim was under $10,000, and because
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