Category Archives: Crimes and U.S. Immigration

Yes, Tamerlan, You Narrowly Missed Being Deported for Domestic Violence

A couple of people who read my recent blog called “Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted” wanted more information on whether and under what circumstances an immigrant can be removed from the U.S. (deported) for committing domestic violence. (As you’ll see in that blog, the alleged older Boston Marathon bomber was apparently arrested in 2009 arrest for assaulting his girlfriend, though the charges were ultimately dismissed.)

The short answer is that, so long as the person was actually convicted, U.S. immigration laws come down hard on domestic violence crimes. The person may be deported under any of a number of sections of the federal immigration statutes, and likely barred from returning to the U.S. for a good long time, perhaps permanently. For more information, see this new article on the Nolo website: “Is an Immigrant Convicted of Domestic Violence Deportable?

Tamerlan Tsarnaev’s “Battered Dream” Was Self Inflicted

flagThe New York Times, in the grand tradition of exploring the psychological drama behind criminal behavior, recently tried to make hay out of alleged Boston Marathon bomber Tamerlan Tsarnaev’s “stalled” application for U.S. citizenship.

In “A Battered Dream, Then a Violent Path,” writers Deborah Sontag, David M. Herszenhorn, and Serge F. Kovaleski assert that being barred from the 2010 national Tournament of Champions because the 23-year-old Tsarnaev was not a U.S. citizen was “a blow the immigrant boxer could not withstand.”

Okay, let’s back up here. Why wasn’t Tsarnaev a U.S. citizen already? A green card holder (which Tsarnaev was) can apply to naturalize at age 18, after spending at least five years in the United States. According to a CNN timeline, Tsarnaev entered the U.S. in 2003. So if he’d wanted to apply for citizenship before 2010 — a prudent thing to do for anyone pursuing opportunities within the U.S. — one would think he could have.

The NYT article says that Tsarnaev still had a year to wait (until 2011) before being eligible to apply to naturalize, though it unfortunately doesn’t explain why. Meanwhile, the L.A. Times suggests that Tsarnaev may have made a 2009  bid for citizenship. It states that Toronto-based photographer and scientist Johannes Hirn published a photo essay called ‘Will Box for Passport’ showing the young man training for the U.S. Olympic team and stating that he “hoped to become a naturalized U.S. citizen by earning a place on the team.”

True, that’s not exactly conclusive evidence of an application. If boxing his way to citizenship was Tsarnaev’s hope, he probably should have spoken to a lawyer first. Joining the Olympic team is not a prerequisite for citizenship. Submitting an application on Form N-400 and passing a test and interview, as well as showing good moral character, is.

But if Tsarnaev had submitted an N-400 in 2009, it could easily have been denied; perhaps for lack of good moral character. Tsarnaev had a 2009 arrest on his record, for — speaking of battered dreams — domestic abuse and battery, after allegedly assaulting his girlfriend. The charges were ultimately dismissed, so they wouldn’t have had any direct legal affect on his application for citizenship. But Tsarnaev would have had to disclose the arrest on his N-400 application, and it wouldn’t exactly have bolstered the “good moral character” that was his obligation to show.

The New York Times article goes on to state that Tsarnaev submitted a citizenship application a couple of years later, in September of 2012. It refers to that application as having been “stalled” — though the seven months he’d waited by the time of his death is hardly out of the ordinary. Many immigrants wait a year or more after submitting Form N-400 to be called in for their citizenship interview. The average time in the Boston office is five months, as anyone can check on the following website:
https://egov.uscis.gov/cris/Dashboard/ProcTimes.do

The New York Times and other reports state, however, that Tsarnaev’s N-400 filing led to investigations in 2013 by federal law enforcement agencies, curious about his travels to Russia and warnings about him that came straight from Russian security agencies. So if his activities in Russia were as suspicious as they seem to have been, a “stalled” application for citizenship was the least of his worries — Tsarnaev should have been worried about deportation from the U.S. on criminal grounds. (See the “Crimes and U.S. Immigration” page of Nolo’s website.)

All in all, the facts surrounding Tsarnaev’s bid for U.S. citizenship are a bit thin. But the one thing that seems clear is that this is, at best, a minor case of an immigrant being stymied by the system. The worst hurdles Tsarnaev apparently faced were a boxing tournament that was only open to U.S. citizens and an opportunity for citizenship that was only a matter of months away — if he hadn’t messed things up.

Supreme Court Decision in Chaidez Bad for Immigrants

prisoner_Congress, the Supreme Court, and the American public have always been unsympathetic to immigrants who commit crimes in the United States. That’s not surprising nor disturbing in and of itself.

However, the Supreme Court’s recent decision in Chaidez v. United States is an uncomfortable reminder that this harshness extends to immigrants who may not have actually committed crimes, or whose crimes were so minor that even U.S. laws would not ordinarily deem them deportable.

Here’s the background on this situation: Because of wrong advice from criminal defense lawyers who didn’t fully understand the immigration laws (which, in these lawyers’ defense, are insanely tough to understand), many immigrants have pled guilty to, or otherwise failed to fully defend themselves against conviction for a crime — not realizing that the conviction’s presence on their record would make them deportable.

For instance, a criminal lawyer might reasonably tell an immigrant defendant, “Look, we got a great offer from the prosecutor — you plead guilty to a misdemeanor, and you’ll avoid jail time and a trial.” What the criminal lawyer may not know is that even some misdemeanors are considered “aggravated felonies” or “crimes of moral turpitude” under U.S. immigration law — either of which can make even a green card holder deportable from the United States. (See “Crimes That Will Make an Immigrant Deportable” for details.) Yet, relying on the lawyer’s advice, the immigrant might agree to plead guilty, rather than pushing for a trial that might perhaps result on a “not guilty” verdict.

The Supreme Court made some progress toward resolving this problem in a case called Padilla v. Kentucky. There, the Court held that criminal defense attorneys must inform noncitizen clients of the risks of deportation arising from guilty pleas — and if they didn’t, those convictions could later be challenged. That raised hopes that not only immigrants currently fighting deportation or a criminal conviction, but those whose criminal convictions had already become final could go back and have the case overturned.

Those hopes were dashed by the Chaidez case. The Padilla rule, according to the Court, does not apply retroactively. An immigrant with a final conviction for a crime — whether it’s final because all appeals are over or because the immigrant did not file an appeal within the time period allotted — must live with the consequences of that conviction. For more on the immigration consequences of criminal acts, see Nolo’s articles on “Crimes and U.S. Immigration.”

Ordered to Immigration Court? Expect Long Waits as the Backlog Grows

Being summoned for immigration court proceedings can be terrifying, whether you are in the U.S. without documents or are a green card holder whom the U.S. government believes should be deported.

But whatever fears you may have about the process, there’s little need to fear that anything will happen overnight. This is particularly true if you have a defense to removal (and will not simply request “voluntary departure” at the earliest opportunity), which will justify holding a full (“merits”) hearing.

The reason? The immigration court system is getting more and more backed up with cases. According to statistics kept by TRACImmigration, by September of 2012 the backlog had grown to an all-time high of 325,044 cases nationwide. That’s 23.7% more people than were awaiting the conclusion of their court cases in September 2010.

This backlog has translated into waits of up to a year or more, depending on the type of case. The average wait has reached around 203 days to resolve cases that ended with removal orders and 781 days to resolve cases that ended with relief orders. (To check on details in your region, go to TRACImmigration’s “Immigration Court Backlog Tool.”

Part of the reason that such backlogs grow is that, if the person in proceedings (usually called the “alien”) has a lot of information to present to the immigration judge (such as personal testimony and that of witnesses), it’s unlikely that the merits hearing will be concluded in one day. And because the calendar is jam-packed, the judge will not, at the end of the first day’s hearing, say “Come back tomorrow.” Instead, the judge will put a new or “continued” court date on the calendar for many weeks or months into the future. (Expect weeks rather than months if you applied for asylum and were referred for immigration court proceedings.)

It can start to feel all very casual, as if the U.S. government really isn’t interested in finishing up your hearing. But don’t let this make you careless about keeping track of upcoming court dates, and arriving well in time. One missed court date and you could find yourself with an “order of deportation” on your record, and no further opportunities to defend yourself in court. See Nolo’s articles on “Immigrants in Deportation or Removal Proceedings” for more information.

Should the Media Use the Term “Illegal Alien?”

No less a news source than The New York Times has entered into the public debate about how best to describe foreign-born people living in the U.S. without permission. (See “Is ‘Illegal Immigrant’ the Right Description?,” by Margaret Sullivan.)

At last count, close to 300 people had entered comments on this article, representing every opinion from “Illegal alien is short, sweet and concise” and “A criminal is a criminal” to “Bigots and xenophobes happily use the term in their efforts to disparage, dehumanize, and condemn” and “Being inside the US without proper documentation is not an illegal act. Even less, the person that is doing it.”

I’ll put my two cents worth of legal insights on this matter here — and try to steer clear of thoughts on overall U.S. immigration policy.

1) Being in the U.S. without permission, whether due to an illegal entry or having overstayed a visa, is not a crime. It’s a civil violation. That may sound like a distinction without a difference, but you have only to look at the comments themselves to see how many people make a quick leap from “illegal” to “criminal.” A friend of mine who taught grade school once told me that some of her students expressed the opinion that border crossers should be shot on sight, because they were criminals. That suggests to me that the word “illegal” is being thrown around too loosely. (For the record, crossing the border without authorization is in fact a federal misdemeanor, under Title 8 Section 1325 of the U.S. Code, but the potential punishment is a fine of between $50 and $250 and/or a maximum of six months in jail — certainly not the death penalty).

2) The starkness of the word “illegal” implies that it’s easy to judge who has a right to be in the United States. It’s not. The complexities of immigration law have given rise to many gray areas. For example, the whole system of applying for asylum as a means of gaining protection from persecution in one’s home country presupposes that the person is already in the United States. But how are you supposed to get to the U.S., particularly if you’re, say, a Guatemalan peasant whose chances of gaining a U.S. entry visa are just about nil? Countless such people have entered the U.S. without permission and applied for asylum, and the U.S. has, where appropriate, granted their requests. Until their applications were accepted for processing, they could only be called “illegal” under the prevailing terminology — and yet, had they been arrested and placed in deportation proceedings, the law would have given them every right to apply for asylum as a defense. I don’t believe that such people are who most of the U.S. public think of when they hear the word “illegal,” but such cases are swept up into this overly broad term.

As another example of the gray area, I spent years of my practice as an immigration lawyer helping prepare applications for family members of U.S. lawful permanent residents who were waiting unlawfully in the U.S. for a visa to become available to them. Annual limits on the number of available family-based green cards mean that if you’re, say, the 22-year old daughter of a green card holder, you’re looking at an eight-year wait before you can legally enter or remain in the United States and join your perfectly legal family there. (The wait is much longer for family members from Mexico.) But because of legal bars to reentry that punish people for unlawful status, leaving the U.S. would have actually been the worst thing many such family members could have done — and the immigration authorities, recognizing this conundrum, actually assured immigration lawyers that they would hold off on enforcement activities against such family members. Yet without another word for them, they too are part of this “illegal alien” population.

Here on the Nolo site, we try to use the word “undocumented” whenever possible. It may not be perfect, but at least it recognizes that the person’s status may not be fixed. An “undocumented” person may, for more reasons than the public realizes, someday become “documented” under U.S. law.

Attending Naturalization Oath Ceremony Could Have Saved Immigrant From Deportation

A recent case out of the Third Circuit Court of Appeals, called HECTOR DURAN-PICHARDO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, is a good reminder of why attending and passing your naturalization interview (for U.S. citizenship) is not enough by itself. You’ve got to actually complete the oath ceremony before you will be considered a U.S. citizen — and receive the benefits and protections that come with that status.

Mr. Duran-Pichardo, originally from the Dominican Republic, became a U.S. lawful permanent resident in 1981. He applied for naturalization in 1997, and attended his naturalization interview in 1998.  Apparently, he passed the examination, though he was given only a document stating that the “INS will notify you later of the final decision on your application.”

The trouble arose when the INS never got around to sending him that “decision,” much less an appointment for his oath ceremony. Mr. Duran-Picardo tried to call the agency many times, but says he ultimately was told that all or part of his naturalization file had been lost. At that point, he seems to have given up.

That was a bad idea, especially in light of Mr. Duran-Pichardo’s later activities: In 2008 (nearly ten years later), he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine. The sentence was 51 months’ imprisonment.

Later in 2008, the U.S. government began removal proceedings against Mr. Duran-Pichardo, alleging that he was deportable both due to the controlled substance violation and as an aggravated felon. In his defense, he claimed that he was either a U.S. citizen or should have been, given that the U.S. government itself was at fault in failing to finalize his naturalization application.

That argument got him nowhere. As is typical in cases where the U.S. immigration bureaucracy is at fault, it takes no responsibility for the consequences. This also illustrates the severe immigration consequences of any type of drug crime.

This case might not create much sympathy or worry for other U.S. citizenship applicants who think, “No problem, I’m not planning to sell drugs.” Nevertheless it’s an important reminder of the need to track the scheduling of your citizenship oath ceremony, and attend it when scheduled. Far less severe actions than a drug crime can make a person deportable — for example, see my article, “Can I Really Be Deported for Failing to Advise USCIS of My Change of Address?” What’s more, you need to maintain your eligibility for citizenship right up to the day of the oath ceremony. The longer it gets put off, the greater the risk that something will happen to affect your eligibility.

B.I.A.’s Valenzuela Gallardo Decision a Reminder of Broad Scope of Aggravated Felony Definition

If you had to guess, would you think that being convicted under California’s Penal Code Section 32 for an after-the fact “accessory to a felony” would itself be considered an aggravated felony — and therefore cause someone with a green card to lose his or her permanent resident status and be deported?

Section 32 of the California Penal Code makes it a crime when someone:

"after a felony has been committed, harbors,
conceals or aids a principal in such felony, with the intent that
said principal may avoid or escape from arrest, trial, conviction or
punishment . . . ."

In other words, the convicted person wasn’t part of the original crime, but seems to have somehow helped the criminal(s) hide out afterwards.

This is indeed an aggravated felony, according to the Board of Immigration Appeals’ (B.I.A’s) June 27 decision in Matter of Agustin Valenzuela Gallardo. The B.I.A. pointed to Section 101(1)(a)(43)(S) of the Immigration and Nationality Act (I.N.A.), which says that among the many types of aggravated felonies are “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.”

Mr. Valenzuela Gallardo had received a 16-month prison sentence. And, the B.I.A. reasoned, the California statute’s specific mention of the convicted person’s intent to help a felon escape capture brings it squarely in line with the definition of obstruction of justice.

I don’t know the history of this case — namely what type of legal help the defendant had early on — but may well be a classic example of why immigrants to the U.S. should hire an immigration lawyer, not just a criminal lawyer, the minute they find themselves in trouble with the law. With some negotiation, it is sometimes possible to obtain a conviction that does not lead so directly to deportation.

Potential Dharun Ravi Deportation Shows Complexity of U.S. Immigration Laws

Now that Rutgers University student Dharun Ravi has been convicted of bias intimidation and invasion of privacy, the question becomes, will he be deported from the United States to his native India? Ravi is apparently a U.S. lawful permanent resident (green card holder), which means he is subject to the grounds of deportability set forth in the Immigration and Nationality Act (I.N.A.). (If Ravi had become a naturalized citizen, he would have been safe from deportation — but at age 20, he has been eligible to apply for only two years — probably didn’t get around to it.)

Ravi’s case presents a classic example, however, of the difficulties of determining which crimes make a person deportable. With few exceptions, there’s no easy, cut and dried list to follow. It’s a matter of matching state law and the facts of the case to the federal statutes. David Isaacson, an immigration attorney with Cyrus D. Mehta and Associates told New Jersey Public Radio reporter Nancy Solomon, “It would take him several hours of research, if not days, to determine how the Ravi convictions fit into the federal statutes.” (He’s a respected attorney, and not exaggerating! Okay, maybe exaggerating a little.)

Attorney Matthew Kolken did a helpful blog post on the case — and posited that Ravi is probably not deportable — but noted that, ” I don’t have enough information to be able to answer the question . . . [and] don’t have the time today to dig up any more of the facts.”

Even if Ravi is deportable, whether the prosecutors choose to act on this is a matter of discretion. Prosecutorial discretion by the immigration authorities has been in the news a lot lately, with this administration trying to create some consistency and focus resources only on the most serious criminals or those with few meaningful ties to the United States. Some commentators have predicted that, given the high-profile nature of the case, the immigration authorities would pursue deportation. Then again, the judge issued a recommendation against it. That’s not binding, but government authorities don’t  like to step on each others toes. Stay tuned . . . .

Baseball Pitcher Fausto Carmona Brings Strict U.S. Immigration Laws Into Headlines

If anyone needed a reminder that:

  1. the U.S. immigration authorities REALLY hate being lied to, and
  2. crimes that seem relatively non-threatening to most observers can have drastic immigration consequences

. . . then look no farther than the case of Fausto Carmona, the Cleveland Indians pitcher recently arrested for lying about his name and age in order to get the opportunity to play in the United States. Attorney Cesar Garcia Hernandez provides an excellent analysis in the Columbus Dispatch, reprinted on his February 9, 2012 blog.