In order to create a conviction-based ground of deportation, the conviction must be for a crime, as defined in the jurisdiction in which the offense was committed.[49]  Where the conviction is for a minor offense that is not designated as a crime in the jurisdiction in which it was committed, a conviction does not trigger deportation under conviction-based grounds.[50] 

 

Where the prosecution could proceed either civilly or criminally, and chose to prosecute the defendant for a crime, the resulting conviction was considered to be a crime.[51]  (For purposes of determining inadmissibility under INA § 212, 8 U.S.C. § 1182, the act must constitute a crime under the criminal law of the jurisdiction where the act occurred.)[52]

 

The BIA has recently held that the phrase “judgment of guilt” under the statutory definition of “conviction”[53] requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[54]  The court found that a “criminal” proceeding under Oregon law[55] that resulted in a finding of guilt was not a conviction for immigration purposes because the proceeding involved a “violation” rather than a crime, for a number of reasons: conviction of a violation does not result in any legal disability under Oregon law;  the defendant does not have a right to a jury or court-appointed counsel in those proceedings; and the prosecution need only show guilt by a preponderance of the evidence, rather than beyond a reasonable doubt.[56]  Therefore, the proceedings were not criminal proceedings under federal immigration law, and the result was not a conviction for purposes of triggering a conviction-based ground of deportation.

 

Other states may have similar proceedings that would not result in a “conviction” for immigration purposes.[57]  For example, in California, certain misdemeanor offenses, notably petty theft[58] can be prosecuted as misdemeanors or infractions.[59]  The infraction is similar to the Oregon petty offense procedure held in Eslamizar not to be a conviction in several important respects:

 

            (1)  “An infraction is not punishable by imprisonment.”[60]

 

            (2)  “A person charged with an infraction shall not be entitled to a trial by jury.”[61]

 

            (3)  There is no right to the assistance of court-appointed counsel.[62]

 

Although the defendant must be proved guilty beyond a reasonable doubt,[63] on balance, the California infraction procedure cannot be said to be a criminal procedure, because of the reasons stated above.  In Eslamizar, the Board en banc held “that by ‘judgment of guilt’ Congress most likely intended to refer to a judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[64]  Even though the burden of proof for an California infraction is beyond a reasonable doubt, that single factor should be insufficient to convert a proceeding without the right to a jury trial, without the right to appointed counsel, and for which no jail sentence is permissible, into “judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[65]  Therefore, an infraction under California law should not be considered a criminal conviction, for immigration purposes, under Eslamizar.

 

If a violation is described as an “offense,” to comply with local jurisdictional requirements, that label does not necessarily prevent its classification as a crime for removal purposes, when a crime is actually involved.[66]  The label given to an act by a state or local jurisdiction does not control decision of the question whether the offense constitutes a crime within the meaning of the Immigration and Nationality Act.[67]  In one case, even where the local jurisdiction treated the matter as civil, the BIA held that a guilty finding rendered the conduct a crime for purposes of former 8 U.S.C. § 1251(a)(4)(A).[68]  It is questionable, however, whether the Board would reach such a result today.[69]  Even if a state legislature calls an act a misdemeanor, the conduct may be considered a crime for removal purposes when the act in question was a “crime at common law involving an act intrinsically and morally wrong and malum in se.”[70]

 

Juvenile delinquency is not regarded as a crime, and a person who is regarded under local law as a juvenile offender or juvenile delinquent has not been convicted of a crime for immigration purposes.  The fact that a noncitizen was a minor at the time the offense was committed does not in itself exempt him or her from deportation on account of a conviction so long as the conviction occurred in adult court.  See § 4.10, supra.

 

[49] Ex parte Isojoki, 222 Fed. 151 (N.D. Cal. 1915).

[50] Matter of Van Dessel, 243 F.Supp. 328 (E.D. Pa. 1965) (fornication considered to be a minor offense); Matter of C, 2 I. & N. Dec. 367 (BIA 1945).

[51] Matter of W and B, 5 I. & N. Dec. 87 (BIA 1953).

[52]  22 C.F.R. § 40.21(a).

[53] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[54] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).

[55] Oregon Revised Statutes § 153.076.

[56] Matter of Eslamizar, 23 I. & N. Dec. at 687.

[57] See, e.g., California Penal Code § 19.6.

[58] California Penal Code § § 484(a), 488.

[59] California Penal Code § § 17(d), 19.8 (giving list of offenses).

[60] California Penal Code § 19.6.

[61] Ibid.

[62] Ibid.

[63] See California Penal Code § 19.7 (“. . . all provisions of law relating to misdemeanors shall apply to infractions including . . . burden of proof.”).

[64] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).

[65] Ibid.

[66] Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959) (soliciting men to commit a crime against nature or other lewdness; the state’s classification is not controlling since Congress intended to apply uniform federal standard, applicable in all states); United States v. Flores-Rodriquez, 237 F.2d 405 (2d Cir. 1956); Matter of P, 8 I. & N. Dec. 424 (BIA 1959) (Massachusetts conviction of lewdness); Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (conviction by police court for theft, even though statute designates such prosecution as civil proceeding); Matter of G, 7 I. & N. Dec. 520 (BIA 1957) (disorderly conduct: soliciting a man for an immoral purpose)); Matter of W, 4 I. & N. Dec. 401 (BIA 1951) (practicing prostitution, reversed on other grounds by Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967)).

[67] Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir.), cert. den.,  368 U.S. 926 (1961).

[68] Matter of CR, 8 I. & N. Dec. 59, 61 (BIA 1958).

[69] See Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[70] Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929) (noncitizen convicted of stealing $15.00 and sentenced to confinement for one year was deportable, even though Massachusetts law classified the offense as a “misdemeanor”); Squires v. INS, 689 F.2d 1276 (6th Cir. 1982) (common-law crime committed in Canada was analogous to a felony in local jurisdiction and resulted in deportability of noncitizen). Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913, 80 S.Ct. 662 (1959) (“disorderly conduct,” consisting of loitering, defined as an “offense” by New York law, was nevertheless a “crime involving moral turpitude”).

BIA

CONVICTION - CRIME - MINOR OFFENSE - NOT A CRIME UNLESS SUBJECT TO PARDON POWER - MISSOURI
Offense of violating City Charter of a city is Missouri, even though termed a "misdemeanor," is arguably not a "crime" since it is not subject to the Governor's pardon power. See Matter of Cevallos, 12 I. & N. Dec. 750, 1968 BIA LEXIS 71 (May 27, 1968) (one of the definitions of a "crime" is based on whether the "crime" is subject to the Governor's Pardon Powers). In Missouri, the Governor of the State has Pardon powers per Missouri Constitution Art. IV Sec 7. However, in Ex Rel Kansas City v. Renick (1900), 157 Mo. 292, 57 S.W. 713 (1900), the Missouri Supreme Court held that the Governor of the State does not have power of pardon over a "municipal offense." Although in Missouri, under Missouri Statute, the Mayor of a municipality has the power of pardon on a limited basis (see RSMo 77.360: "The mayor shall have power to remit fines and forfeitures and to grant reprieves and pardons for offenses arising under ordinances of the city; but this section shall not be so construed as to authorize the mayor to remit any costs which may have accrued to any officer of the city by reason of any prosecution under the laws or ordinances of said city.") This power, however, cannot eliminate the immigration consequences of such an offense since it is not included under INA 237(a)(2)(A)(v) ("pardons to be granted by President of the US or Governor of any of the Several States"). Thus, pursuant to Matter of Cevallos, the misdemeanor City Charter convictions cannot be regarded as "crimes" for immigration purposes. But see Matter of W, 4 I. & N. Dec. 401 (1951) (violation of a City Ordinance relating to prostitution deemed to be a crime or misdemeanor involving CIMT under Immigration Act of Feb. 5, 1917). Thanks to Raymond R. Bolourtchi.

Sixth Circuit

POST CON RELIEF - EFFECTIVE ORDER - CONVICTION VACATED FOR IMMIGRATION REASONS STILL EXISTS
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) ("We hold that the present case is distinguishable from Pickering on the ground that, unlike the petitioner in Pickering, petitioner Sanusi did not raise or argue any colorable legal basis for the vacation of his conviction[, since] it is well settled that there is no obligation to advise a criminal defendant of the collateral immigration consequences of entering a guilty plea."), citing El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002).

POST CON RELIEF - EFFECTIVE VACATUR - PICKERING
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) (although a petitioners immigration motive for seeking post-conviction relief is not sufficient by itself to hold vacatur ineffective for immigration purposes, there must be some demonstrable legal basis for the vacatur; defendants "state court petition and the uncontested order of the Arkansas court with the docket entry--On 8-11-03, Milton Dejesus, attorney for defendant, filed a petition for writ of coram nobis. City Attorney had no objection. Judge granted the motion.--fail to provide the evidence from which it may be reasonably inferred that the writ of coram nobis was granted on any recognized legal ground. On this record, the only reasonable inference that can be drawn is that the conviction was vacated for the sole purpose of relieving Sanusi from deportation.").

http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf

"In Morgan, the Supreme Court upheld the availability of coram vobis to a defendant who had not been provided counsel, but who had served his entire sentence. Morgan, 346 U.S. at 512. The Court noted that, with no other remedy being then available and sound reasons for the failure to seek earlier relief, the petitioner was entitled to seek a writ of coram vobis, for "[o]therwise a wrong may stand uncorrected which the available remedy would right." Id. In this case, the wrong suffered by Mohamed cannot stand uncorrected. A defendant's Sixth Amendment rights must be protected, and in this case, the result was that both Mohamed and the Court were unaware of the immigration consequences that would follow from his sentence. Therefore, pursuant to a writ of coram vobis, the Court will amend Mohamed's sentence from a term of two years to a term of three hundred and sixty days, with all time suspended."

Commonwealth v. Mohamed, Aug. 18, 2006.

Case No. (Criminal) 06-1059

CIRCUIT COURT OF ARLINGTON COUNTY, VIRGINIA

71 Va. Cir. 383

2006 Va. Cir. LEXIS 244

Other

MISDEMEANOR - DEFINITION - MINNESOTA - RELIEF - TEMPORARY PROTECTED STATUS - MISDEMEANOR - MINNESOTA
A Minnesota petty misdemeanor not a "misdemeanor" as defined for TPS, under 8 CFR 244.1 [offenses that are punishable by imprisonment for a term of five days or less shall not be considered a felony or misdemeanor], because the court may not impose a sentence of five days in jail for this type of offense.

Minnesota law divides all offenses into the following categories: (1) petty misdemeanors; (2) misdemeanors; (3) gross misdemeanors; and, (4) felonies. Petty misdemeanors do not constitute a criminal offense under the laws of Minnesota, the maximum penalty for a petty misdemeanor is a fine of $300.00, and a term of imprisonment may not be imposed for a conviction for a petty misdemeanor. Minnesota Statute 609.02, Subd. 4(a); State v. Tessema, 515 N.W.2d 626 (Minn. App. 1994). The Minnesota Rules of Criminal Procedure provide that any offense shall be deemed a conviction for a petty misdemeanor if the sentence imposed upon a plea or finding of guilty is within the limits of the maximum sentence allowable for a petty misdemeanor. Minn. R. Crim. Pro. 23.02. Accordingly, any conviction with a sentence imposed of a fine of $300.00 or less, constitutes a "petty misdemeanor" which is not a criminal conviction and which is punishable "by imprisonment for a term of five days or less." Thanks to Bruce Nestor.