Introduction

Removal of noncitizens from the U.S. due to criminal convictions has skyrocketed in recent years due to changes in U.S. immigration law and a dramatic increase in immigration enforcement. Convictions for minor criminal offenses can have disastrous and irrevocable consequences to noncitizen clients; dispositions that appear innocuous or even favorable in terms of incarceration or criminal penalty may cause far worse immigration consequences. In March 2010, the U.S. Supreme Court found in Padilla v. Kentucky that deportation “is a particularly severe ‘penalty’” and so “intimately related to the criminal process” that defense attorneys are required under the Sixth Amendment to advise their noncitizen clients of potential immigration consequences prior to resolving criminal cases. The Court thus held that failure to properly advise noncitizen clients of immigration consequences constitutes ineffective assistance of counsel.2 As a result, criminal practitioners must either develop a sufficient understanding of the immigration consequences of criminal convictions as to be able to properly advise their clients, or they must consult with an immigration expert who can analyze the potential consequences which they can use to advise their clients. Because even the most minor of criminal offenses can have serious consequences in immigration proceedings, in most cases, criminal practitioners should consult with someone who is knowledgeable about the interplay between criminal and immigration law.

In Massachusetts, we have a number of resources available to criminal defense practitioners. All Committee for Public Counsel Services (CPCS) staff attorneys and court-appointed private attorneys may seek advice on individual cases from the CPCS Immigration Impact Unit (IIU). In addition, there are many local and national resources available for assistance in this area. For information please see the IIU website at
http://www.publiccounsel.net/Practice_Areas/immigration/links_to_other_resources.html

The following discussion and appendices are designed to assist criminal defense attorneys in analyzing the potential immigration consequences of criminal conduct. They are a  starting point and should not be used in place of individual research. Moreover, because these documents are meant for criminal defense attorneys, they present the most conservative analysis of the ramifications of criminal conduct; therefore, the conclusions are not intended for use by immigration attorneys or judges in determining consequences of criminal conduct.

Governing Law

The primary statute is the Immigration and Nationality Act of June 27, 1952, as amended (“INA”). The Act in its current form is codified at 8 U.S.C. § 1101 et seq. Most immigration practitioners tend to refer to the INA by its more informal section numbers, rather than by citation to the United States Code (e.g., INA § 208); however, for ease of reference this document will use the U.S. Code citations. Most regulations pertaining to immigration law are found at Title 8 of the Code of Federal Regulations (8 C.F.R.), though some matters are also covered in titles 20, 22, 28, and 42 of the C.F.R. and elsewhere. Effective March 1, 2003, the responsibilities of the former Immigration and Naturalization Service (“INS”) were divided among three new agencies within the Department of Homeland Security (“DHS”):

1) U.S. Citizenship and Immigration Services (“USCIS”) administers visa petitions, work authorizations, and other forms of immigrant and nonimmigrant status;

2) U.S. Immigration and Customs Enforcement (“ICE”) oversees immigration and customs investigations and enforcement (including detention and removal); and

3) U.S. Customs and Border Protection (“CBP”) oversees borders and other ports of entry. The Immigration Court remained under the control of the Department of Justice, and it oversees all removal proceedings.

In addition to statutory law, immigration case law is developed by the Board of Immigration Appeals (“BIA”). The BIA issues appellate administrative decisions that are binding nationwide on all Immigration Judges unless modified or overruled by the Attorney General or a federal court. Some BIA decisions are subject to judicial review in the federal courts. 3 Administrative decisions designated as precedential by the BIA are referred to by a citation such as Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988). These decisions are published and are available on Lexis, Westlaw, and on the BIA’s website at  http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html 3 Judicial review is governed by 8 U.S.C. § 1252

U.S. Citizens and Noncitizens: Types of Immigration Status

Citizens

With only a few exceptions, such as some children of diplomats, citizenship is obtained automatically by birth on U.S. soil pursuant to the 14th Amendment to the U.S. Constitution. Thus, if your client was born in the U.S., she is probably a U.S. citizen. This would be true even if she left the U.S. soon after birth and has lived abroad for many years.4 Since the late eighteenth century, U.S. statutes have also provided for the grant of U.S. citizenship to the children of U.S. citizens born abroad. The rules, however, have changed dramatically over the years, and such cases are notoriously complex. If your client had even one U.S. citizen parent or grandparent or was adopted by a U.S. citizen it is very important to research this question thoroughly. The law in force at the time of birth will generally control.5

Citizenship may also be conferred by the government through “naturalization proceedings.”6 Generally, in order to be naturalized, the noncitizen must have been a lawful permanent resident continuously for the five years preceding her application, physically present in the U.S. for at least half that time, and in a particular state or region for at least three months.7 A client who is a naturalized U.S. citizen will have been given a certificate evidencing this fact. Naturalization records may be verified by checking with the clerk of the U.S. District Court where the swearing-in ceremony took place. The minor children of a person who naturalizes may automatically derive citizenship. This may be true even if the child becomes aware that his or her parent naturalized many years ago.8 Children who derived U.S. Citizenship will not have documentation of that fact unless they affirmatively applied for a U.S. passport or citizenship certificate. In addition to the client’s own immigration history, every client should therefore be asked about the complete immigration history of his/her parents and grandparents.

With a very few, extremely rare exceptions, a U.S. citizen client will not face any immigration consequences as a result of criminal proceedings. An applicant for naturalization, however, may be denied naturalization on the basis of a criminal conviction. Immigration law requires applicants for naturalization to be of “good moral character” for the five years preceding the date of application.9 Issues surrounding citizenship and good moral character will be discussed in more detail below.

Lawful Permanent Residents

Noncitizens who attain the status of U.S. legal permanent residents (so-called “LPR” status) are among the most likely to be affected by criminal proceedings in the United States. (Unfortunately, many people are unaware of this fact and believe incorrectly that long-term legal residents will not be deported for minor crimes such as simple possession of marijuana or petty larceny.) Most such persons will likely be aware of their status as LPRs and will have in their possession a so-called “green card” (technically known as a “Permanent Resident Card”), which, in keeping with the anomalous nature of much of immigration practice, is not necessarily green.10 While legal permanent residence status does not expire,11 a green card is only valid for ten years at a time, and should be renewed.

The main concern for an LPR in criminal proceedings should be whether he will be deported as a result of actions taken in the criminal case. As discussed more fully below, grounds of deportability are described quite specifically in the INA. It is also crucial, however, to advise the client that each time he leaves the United States he may be subject, as a noncitizen, to all grounds of “inadmissibility” as well.12 Though there are similarities, the grounds of deportation and those for inadmissibility differ in significant and subtle ways.13 Thus, it is not uncommon that a criminal disposition is structured in such a way that it avoids deportation but renders the client subject to inadmissibility upon re-entry. The consequences of the failure to advise one’s client of this fact could be truly disastrous. A client may be permitted to live in the United States but may be denied re-entry and could very well be arrested at an airport or border and subject to long-term incarceration upon her return from a trip abroad.

Lawful Non-Immigrants

All noncitizens that enter the United States are presumed to be “immigrants,” which means that the government presumes that they are entering with the intention of living permanently in the United States.14 So called “non-immigrants” are those noncitizens who are admitted within one of a number of specifically defined categories in the INA.15 Each category has a letter designation. In general, the noncitizen who enters in one of these categories must have demonstrated both a specific non-immigrant purpose for entry and an intention not to remain in
the United States permanently.16 The most common categories of non-immigrants are business visitors and tourists (B-1 and B-2), students and exchange visitors (F, M, or J), and temporary workers (H). Non-immigrants will generally have a visa stamp in their passports evidencing their status as well as an I-94 card (a white card about the size of an index card that is often stapled into the person’s passport). This card shows that they were admitted in the proper category by immigration officials at the border or airport. (Noncitizens from certain countries, especially most Western European countries, Canada, and Japan, may be admitted for ninety days under the “Visa Waiver” program in which case they will not have a visa in their passports but will have a green I-94W card.)

Apart from being subject to removal if they violate the limits of their category (e.g., tourists are not permitted to work in the U.S.), non-immigrants are also subject to the grounds of deportability for criminal convictions. In addition, any non-immigrant who is convicted17 of a crime of violence (as defined under 18 U.S.C. §16) for which a sentence of one year or longer may be imposed is removable for failure to maintain status.18 As non-immigrants are likely to leave the United States with the intention of returning in the future, it is important also to consider the grounds of inadmissibility. The grounds of inadmissibility and deportability are discussed below in detail.

Refugees and Asylum-Seekers

One of the most poignant and significant consequences of a criminal conviction or admission to sufficient facts can be the denial of an application for political asylum19 or for “withholding of removal,”20 an asylum-like status sometimes given to immigrants who are ineligible for asylum. If there is any possibility that your client has applied or may ever apply for one of these forms of relief due to political or other persecution, it is critically important that you evaluate any action taken in the criminal case with this in mind. A noncitizen convicted of a so-called “aggravated felony” is ineligible for asylum.21 Similarly, withholding of removal may be denied to those convicted of a “particularly serious crime.”22

Other Designations

Temporary Protected Status (TPS)

The Secretary of Homeland Security may designate a country for TPS based upon ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. Noncitizens present in the U.S. without documentation, whose home country is designated as a TPS nation, may apply to remain in the U.S. legally, but only for the duration of the TPS designation. Currently, the nations designated as TPS countries are Haiti, El Salvador, Honduras, Nicaragua, Sudan, Somalia, and Syria. Aside from the criminal grounds of inadmissibility, additional criminal grounds exist that bar an individual from TPS eligibility.23 A noncitizen who is granted TPS must re-apply for this status periodically and must meet the eligibility requirements at each renewal.

Deferred Action for Childhood Arrivals (DACA)

In 2012, DHS announced that it would defer the removal of certain undocumented individuals brought to the U.S. as children. Such individuals will be allowed to remain in the U.S. and work lawfully for two years, with the possibility of renewal. There are numerous eligibility requirements for DACA, including specific criminal bars. For more information, see  www.uscis.gov/childhoodarrivals

U and T Visas

Individuals who have been victims of crime and cooperate in the prosecution of the offenses may be eligible for U visas. See 8 U.S.C. §1101(a)(15)(U). Individuals who have been subject to human trafficking may be eligible for T visas. See 8 U.S.C. §1101(a)(15)(T).

Undocumented and Out of Status Persons (so-called “Illegal Aliens”)

Noncitizens that overstay their periods of legal admission, violate the terms of admission, or enter the United States without documentation or with false documentation are subject to removal as soon as they come to the attention of immigration officials.24 This does not mean, however, that criminal proceedings are irrelevant to their immigration status. Such noncitizens must be “admissible” in order to obtain lawful status; therefore, they are subject to the criminal grounds of inadmissibility, discussed below. Moreover, most defenses to removal or waivers for which they may be eligible are barred by certain types of criminal convictions.25

Terminology

Removal

A noncitizen may be subject to an order of removal due to either grounds of inadmissibility or grounds of deportability. Proceedings in Immigration Court to remove a noncitizen from the U.S. are referred to as removal proceedings. If an order of removal is issued against a noncitizen, it may be months or even years before such individual is physically removed from the U.S. This depends on various factors, such as an appeal of the order or the ability of immigration officials to obtain the travel documents necessary to return the individual to her home country. A noncitizen who is removed by virtue of a criminal conviction will also be excluded from admission to the U.S. for at least five years, and for life in the case of a noncitizen convicted of a so-called “aggravated felony.”26

Deportability

A noncitizen who is in the United States subsequent to a lawful admission is subject to the grounds of deportability. These grounds, described in detail below, apply no matter how long the noncitizen has been in the U.S. and even if her lawful status has expired.

Inadmissibility

A noncitizen seeking physical entry or re-entry into the U.S. may be subject to the grounds of inadmissibility, discussed below. Noncitizens already present in the U.S. may also seek immigration benefits that require them to be “admissible.”27 Note that “admission,” as defined by 8 U.SC. 1101(a)(13), is a term of art under immigration law and that determining the date of a noncitizen’s last admission and understanding its significance may be quite complex.28

For some noncitizens, both the grounds of inadmissibility and deportability may be relevant to their ability to lawfully remain in the U.S.

Good Moral Character

Naturalization, as well as a number of forms of relief from removal or exclusion from the U.S., require a finding of “good moral character.” The statutory definition29 specifically precludes a finding of good moral character for a person who, during the relevant period,30 is or has been:

1. a habitual drunkard;

2. a member of the class of persons described in 8 U.S.C. § 1182(a)(2)(D) (prostitution and commercialized vice); (6)(E) (alien smugglers); (10)(A) (polygamy) or (2)(A) (crime of moral turpitude or controlled substance offense, except for single offense of simple possession of 30 grams or less of marijuana); or (B) (multiple criminal convictions); or (C) (controlled substance trafficker, including a person who the “immigration officer has reason to believe” is or was an “illicit trafficker in a controlled substance”);31

3. one whose income is derived principally from illegal gambling activities, or who has been convicted of two or more gambling offenses;

4. found to have given false testimony to gain any immigration benefits;

5. confined to a penal institution, as a result of a conviction, for an aggregate period of 180 days or more; or

6. convicted of an aggravated felony after November 29, 1990.

Even if a criminal disposition can be structured to avoid the enumerated grounds, DHS may, in its discretion, find a person not to be of good moral character based upon convictions or even admissions to criminal conduct.32 Some guidance on this question may be found in the INS Interpretations.33 The BIA has held, however, that “good moral character does not mean moral excellence” and that it is not necessarily destroyed by a single incident.34

Conviction

Most criminal grounds of deportability require a conviction. What constitutes a conviction for immigration purposes is a question of federal law, and the definition differs from what is considered a conviction under Massachusetts state law.

The INA contains the statutory definition of conviction.35 8 U.S.C. § 1101(a)(48) states as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where –

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

The First Circuit – even before this definition was codified in 1996 – applied the federal conviction standard rather strictly. For example, the Court held that a plea of nolo contendere which included a probationary term was a conviction for immigration purposes even though it was not considered a conviction under state law after successful completion of probation.36

The federal statutory definition of a conviction supports DHS’ position that a Massachusetts Continuance Without a Finding (“CWOF”) is a conviction for immigration purposes. Since 1996, several courts have analyzed “deferred adjudication” procedures in other states, similar to post de novo CWOFs, and found such adjudications to be convictions under 8 U.S.C. § 1101(a)(48)(A) because the conditions imposed or the probation on which the defendant was placed during the continuance was found to be punishment or a “restraint on liberty.”37

In contrast, pretrial probation is not considered a conviction for immigration purposes, because there has been no admission or finding of guilt as required under the federal definition.38 The First Circuit has held that a Massachusetts “guilty filed” disposition is not a conviction for immigration purposes if the disposition was not in consideration for a term of probation already served.39 The case must be limited to its facts, however, as it is the only published case discussing the issue from an immigration standpoint.

Another consideration of whether a disposition is a “conviction” is the issue of finality. In addition to the factors listed in the statute, the BIA and many courts have historically held that a disposition must attain “finality” in order to be a conviction.40 Thus, the rule in Boston Immigration Court has long been that a criminal conviction cannot be used as a ground of deportability until the direct appeal of the conviction is exhausted.41

Crime Involving Moral Turpitude (CIMT)

An extensive and complicated body of case law has developed as to whether a particular offense is one of moral turpitude. One common, if somewhat florid, definition is “conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”42 It has also been articulated as “reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.”43 Prior to 2008, Courts generally did not look at the facts of a particular case to determine if the offense involved moral turpitude; rather, it analyzed the “inherent nature of the crime as defined by statute and interpreted by the courts as limited and described by the record of conviction.”44

In the last days of the Bush administration, former Attorney General Mukasey scrapped decades of case law in announcing a new formula for determining whether a given crime involved moral turpitude. Under this new formula, if the nature of the offense is not clear from the statute or the “record of conviction”45, an adjudicator is allowed to look at “any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.”46 As a result, in some circumstances, an immigration judge is now allowed to look at other documents, such as police reports, to determine whether a particular criminal offense involved moral turpitude. It remains to be seen whether Matter of Silva-Trevino will alter which crimes are considered CIMTs and which are not.47

While this area of immigration law is fluid and frequently ambiguous, following are some examples of crimes that have already been considered by the BIA and federal courts:

Examples of Crimes Involving Moral Turpitude:48

• Serious crimes against the person such as murder, manslaughter, kidnapping, attempted murder, assault with intent to rob or kill, assault with a deadly weapon, and aggravated assault are generally considered CIMTs.49 In Massachusetts, accessory to murder is a CIMT.50 Involuntary manslaughter in Massachusetts is most likely a CIMT.51

• In Massachusetts, simple assault and battery has commonly been held not to involve moral turpitude.52 In contrast, most aggravated assault crimes are considered CIMTs.53 Assault and battery on a public official has historically only involved moral turpitude if the public official suffered physical injury; however, the broader definition of moral turpitude articulated in Silva-Trevino suggests that this offense is more likely to be considered a crime involving moral turpitude.54

• Most sex offenses, including rape, prostitution and indecent assault and battery, are CIMTs. Failure to register as a sex offender is also considered a CIMT.55

• Among crimes against property, arson, robbery, larceny by check, and malicious destruction of property have been found to be CIMTs. In Massachusetts, in addition, the crime of breaking and entering would be considered a CIMT if the intended felony or misdemeanor involved moral turpitude.56

• Crimes involving theft or fraud as an essential element are almost always held to be CIMTs (e.g., larceny, shoplifting).57

• Weapons offenses generally are held to involve moral turpitude. However, simple gun possession (i.e., G.L. c. 269, § 10) is not a crime of moral turpitude, although it is a separate ground of deportability.58

Violations of regulatory laws and laws that involve strict liability or negligence generally do not involve moral turpitude.59 For example, driving under the influence, aggravated DUI or conviction for a second or subsequent DUI are not CIMTs.60

Please note that this list is not conclusive and that this is a constantly evolving and shifting area of law. Before advising a noncitizen about the immigration consequences of any offense, it is essential to research the question of moral turpitude thoroughly.61

Immigration Consequences of Criminal Conduct

Grounds of Deportability

Aggravated Felonies62

Any alien who is convicted of an aggravated felony at any time after admission is deportable.63 “Aggravated felony” is a ground of deportability which results in virtually automatic deportation, mandatory detention and permanent exile from the U.S. Though the category was originally quite limited, it has expanded tremendously to the point where virtually any crime may be an aggravated felony.64 Some categories of offenses require merely a conviction to constitute an aggravated felony. Others require a conviction and a sentence of imprisonment of one year or more, or a conviction involving a certain amount of monetary loss, to be considered an aggravated felony. The definition of aggravated felonies is retroactive.65

Notably, offenses classified by state law as misdemeanors can be aggravated felonies. For example, a theft offense or crime of violence (as defined under 18 U.S.C. §16) for which a sentence of one year or more is imposed or suspended is considered an aggravated felony.66 The BIA has held that a Massachusetts conviction for OUI (G.L. c. 90, § 24(1)(a)(1)) is not an aggravated felony because violation of the statute is not, by its nature, a crime of violence.

67 The Massachusetts crime of assault and battery (G.L. c. 265, § 13A), though a misdemeanor offense, has long been considered a crime of violence and thus an aggravated felony if a sentence of one year or more is imposed.

68 However, involuntary manslaughter, if based on a theory of reckless failure to act, may not be a crime of violence.69 The chart found in Appendix 3 contains a listing of common Massachusetts criminal offenses that are considered aggravated felonies.

Some controlled substance offenses are considered aggravated felonies, in addition to being an independent ground of deportability, as discussed below.

70 Under 8 U.S.C. § 1101(a)(43)(B), “illicit trafficking” in controlled substances and “drug trafficking” crimes are both aggravated felonies. Generally speaking, “illicit trafficking” refers to offenses involving remuneration, such as distribution or possession with intent to distribute, both of which are considered aggravated felonies.

71 Two Supreme Court cases have clarified which crimes meet the definition of the more disputed category of “drug trafficking” offenses. In Lopez v. Gonzales, the Supreme Court held that simple possession of a controlled substance is not a “drug trafficking” crime unless it would be treated as a felony if prosecuted under federal law.

72 Flunitrazepam (commonly referred to as “roofies” or a “date rape” drug) is the only controlled substance for which possession constitutes a federal felony; therefore, simple possession of all other controlled substances are not considered aggravated felonies. In Carachuri-Rosendo v. Holder, the Supreme Court held that a second conviction for drug possession is not a drug trafficking crime, and therefore not an aggravated felony, unless the record of conviction establishes that it was prosecuted as a “subsequent offense”, with notice to the defendant and an opportunity to be heard on the fact of the prior conviction.

73 A conviction for subsequent possession is treated as a felony under federal law; thus, it would qualify as a drug trafficking aggravated felony. This ruling followed a First Circuit case with the same holding.74

The practitioner representing a noncitizen should attempt to avoid a conviction for an aggravated felony, because the consequences are devastating. Noncitizens convicted of aggravated felonies may be detained without bond75 and will be deported as expeditiously as possible. An aggravated felon is conclusively presumed to be deportable and is also rendered ineligible for virtually all forms of relief from removal. A person deported as an aggravated felon is banned from the United States for life.76

Crimes Involving Moral Turpitude

An alien is deportable if he–

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

8 U.S.C. § 1227(a)(2)(A)(i).

In addition, 8 U.S.C. § 1227(a)(2)(A)(ii) provides that:

Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable [emphasis added].

This section of the INA raises the same issues of conviction and moral turpitude as does 8 U.S.C. § 1227(a)(2)(A)(i). Another important issue in cases under this section, however, may be whether the convictions arose out of a “single scheme of criminal misconduct.” There is a fairly extensive and rather fact-specific body of case law on this point.77 The First Circuit has held that a single scheme involves acts that take place at one time, with no substantial interruption that allows the perpetrator to reflect on his actions.78 The BIA recently held that convictions for multiple charges of possession of a stolen credit card and forgery stemming from purchasing goods with the credit card at multiple stores on the same day do not constitute a “single scheme.” The BIA stated that acts occur in a “single scheme” when they are performed “in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct.”79

Controlled Substance Offenses

A noncitizen is deportable under 8 U.S.C. § 1227(a)(2)(B) who:

. . . at any time after admission has been convicted of a violation of (or a

conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana [.] [emphasis added]

Inchoate offenses generally will be considered controlled substance offenses when the underlying substantive crime involves a drug offense.80 However, a conviction for accessory after the fact to a drug offense (G.L. c. 274, § 4) is probably not a deportable offense, at least under this section of the statute as it is a separate and distinct crime from the substantive offense.81

Controlled substance offenses that were expunged or vacated under various state and federal rehabilitative statutes are still considered convictions under immigration laws. 82 Even if it is possible to avoid a conviction for a controlled substance violation, the practitioner must also avoid the consequences of 8 U.S.C. § 1227(a)(2)(B)(ii) which renders an alien deportable if, at any time after admission, she becomes a drug addict or drug abuser.

Firearm Violations

8 U.S.C. § 1227(a)(2)(C) provides for the deportation of:

[a]ny alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law[.]

It is important to note this section’s breadth (virtually any firearms offense will qualify) and the inclusion of attempt and conspiracy offenses.83 Decisions of the BIA have further broadened offenses covered by this section to include those in which possession or use of a firearm is an essential element of another charge.84 However, possession of ammunition probably does not fall under this ground of deportability.85

Domestic Violence

8 U.S.C. § 1227(a)(2)(E) provides for the deportation of noncitizens who are convicted of crimes of domestic violence, stalking, child abuse, child neglect, child abandonment, or certain violations of protective orders. This is a very broad statute which so far has been the subject of only limited analysis by the BIA and the courts. Its full text should, however, be read very closely as it applies to a very wide variety of cases. It is important to note that this category of deportable offenses encompasses both domestic and non-domestic crimes:

(i) Domestic violence, stalking, and child abuse – Any alien who at any time after
admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

(ii) Violators of protection orders – Any alien who at any time after admission is
enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

In 2010, the BIA stated in dicta that a “domestic or family relationship need not be an element of the predicate offense to qualify as…a crime of domestic violence under [8 U.S.C. §1227(a)(2)(E)(i)].”86 While neither the BIA nor the First Circuit has directly addressed what can be presented to prove the domestic nature of an offense, it appears that an immigration judge or fact finder may look beyond the record of conviction to police reports and other documents containing hearsay to establish a crime of domestic violence.87

In contrast to offenses discussed above that require a domestic relationship, the BIA has held that in order for an offense to be considered child abuse, neglect or abandonment, a “child” must be an element of the underlying offense that is pled and proven in the underlying conviction to qualify. An immigration judge or fact finder is limited, therefore, to the record of conviction and cannot consider outside sources.88 Note that a “child” is defined under immigration law as anyone less than eighteen years of age.89 The BIA set forth a definition of “child abuse” in Matter of Velazquez-Herrera. Based on the policies behind the provision, the BIA interpreted the term “broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.”90

Other Grounds of Deportability

The grounds discussed above do not provide an exhaustive list of all bases for deportation. Less common grounds involving criminal conduct include smuggling (of aliens), marriage fraud, espionage, sabotage, treason, sedition, Selective Service violations, falsification of documents and “terrorist activities.”

Grounds of Inadmissibility

Crimes involving Moral Turpitude

8 U.S.C. § 1182 (a)(2)(A)(i) states in pertinent part that any alien is inadmissible to the United States who has been:

convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime[.]

A conviction is not required under this section of the statute. A voluntary and knowing admission to the essential elements of a crime involving moral turpitude alone may well suffice to render a person inadmissible to the United States.91

It is also important to note that the statute itself provides that this inadmissibility section will not apply if:

• The alien committed only one crime;

• The crime was committed when the alien was under 18 years of age; and

• The crime was committed (and the alien was released from any confinement) more than five years before the date of applying for admission to the US.92

Similarly, an alien will not be inadmissible under this section if:

• The maximum penalty possible for the crime did not exceed imprisonment for one year; and

• The alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).93

Controlled Substances

Inadmissibility for controlled substance violations is governed by 8 U.S.C. § 1182 (a)(2)(A)(i)(II) which renders inadmissible any alien:

. . . convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802))[.]

This section is very broadly construed and will include virtually any controlled substance offense the practitioner is likely to encounter. Further, 8 U.S.C. § 1182 (a)(2)(C) excludes from the United States any person whom the government knows or has reason to believe is an illicit trafficker in any controlled substance or is or has been a “knowing aider, abettor, assister, conspirator or colluder” in such trafficking. Thus, a disposition that is not a conviction could cause a noncitizen to be inadmissible.

Multiple Offenses

8 U.S.C. § 1182 (a)(2)(B) renders inadmissible any alien:

convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more[.]

Note that for this section to apply a “conviction” is required, but moral turpitude is not.

Prostitution

8 U.S.C. § 1182 (a)(2)(D) bans from the United States any noncitizen

who . . . is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status, [or who] directly or indirectly procures or attempts to procure, or [within that period] procured or attempted to procure or to import, prostitutes or . . . received . . . the proceeds of prostitution, or . . . is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution[.]

Both the federal regulations and the BIA have stated that this ground of inadmissibility is for a pattern of continuous conduct; isolated acts of prostitution or solicitation of a prostitute are not enough to make a noncitizen inadmissible.94

Other Grounds of Inadmissibility

8 U.S.C. § 1182 contains a number of other grounds of inadmissibility which should be consulted if they appear even potentially applicable. For example, 8 U.S.C. § 1182 (a)(3), entitled “Security and Related Grounds,” contains very broad bases of inadmissibility including “any other unlawful activity” and “Terrorist Activities” which are defined rather loosely. 8 U.S.C. § 1182 (a)(2)(E) relates to certain aliens who have asserted immunity from criminal prosecution.

Juvenile Offenses

A finding of delinquency in a juvenile proceeding is not considered a conviction for immigration purposes.95 A finding of delinquency may, however, preclude a finding of good moral character. A delinquent act also might fall under a ground of inadmissibility or deportability that is based on conduct rather than convictions – for example, prostitution, drug abuse, or “reason to believe” that a noncitizen is a drug trafficker.96 Similarly, violation of a restraining order is a deportable offense that does not require a conviction, and a determination by a civil court may trigger deportability.97

If a juvenile is tried and convicted as an adult, then she would most likely be treated as having an adult conviction in immigration proceedings.98 It is uncertain at this time whether a Massachusetts “youthful offender” adjudication would be deemed a conviction for immigration purposes. The BIA has held that a “youthful offender” adjudication under New York law did not constitute a conviction for immigration purposes.99 The Sixth Circuit has held that Michigan’s “youthful trainee” designation amounted to a conviction because the procedure was more similar to a deferred adjudication than a delinquency finding.100 The Massachusetts YO statute has similarities to both the New York and Michigan statute. Thus, until the BIA rules, the immigration effects of a YO finding are not clear. The exact nature of the proceedings and the ultimate sentence would, however, be important factors for the BIA to consider.

Final Note

When the Department of Homeland Security initiates removal proceedings against a noncitizen, it is not required to include all possible grounds of removability or all of the criminal offenses that make him removable.101 Instead, DHS will list the minimum number of offenses that it needs to meet its burden of proving removability.102 If the listed convictions are vacated, or if a judge finds that they are not removable offenses, DHS is free to amend its charging document to include additional offenses.103 As long as a criminal offense makes a noncitizen removable, DHS is free to include it initially on the Notice to Appear, add it later, or even use it as a basis for reopening proceedings after the Immigration Judge has decided the case.104

Post-Conviction Relief

A conviction that has been vacated pursuant to state or federal law generally does not constitute a conviction for immigration purposes, unless it was vacated specifically to avoid immigration consequences.105 Once a noncitizen has been convicted of a crime that would render him/her removable, there are two common immigration-based grounds in Massachusetts for a motion to withdraw the guilty plea and to vacate the conviction: (1) the defense lawyer’s failure to explain the immigration consequences; and (2) the court’s failure to explain the immigration consequences or to conduct an otherwise proper colloquy.

Of course, if a trial took place, transcripts should be scoured thoroughly for possible grounds for appeals or other new trial motions. In addition, the defendant may seek a pardon. Finally, in certain circumstances relief in the federal courts may be sought by Writs of Error Coram Nobis, Audita Querela, or Habeas Corpus.106

Motion to Vacate Guilty Plea Pursuant to G.L. c. 278, § 29D

In Massachusetts and some other states, judges must warn a defendant who is pleading guilty or admitting sufficient facts of the immigration consequences of that plea or admission.107 Failure to provide such warning may provide grounds for a motion to vacate the conviction.108 In Massachusetts, the burden to so advise the defendant is on the court.109 The burden to provide a record which shows that the advisement has been given is on the Commonwealth, 110 and the presumption of regularity does not apply to motions based on this statute.111 The lack of a record of such advisement, coupled with a showing of prejudice, requires a new trial. As a result of appellate decisions diluting the requirements and effectiveness of the statutory protections afforded by the statute, G.L. c. 278, § 29D was amended in 2004.112 The amendments are not retroactive and, therefore, apply only to pleas or admissions that occur on or after August 28, 2004 (the effective date of the amending legislation).

There is no statutory or regulatory time limit for filing a § 29D motion. However, the passage of time may be a consideration.113 The case law implies that the more time that passes, the less likely the court will find a failure to advise. In contrast, the amended statute requires “an official record or a contemporaneously written record . . . that the court provided the advisement.”114 Notwithstanding these considerations, the statute clearly states that a defendant may file a motion to vacate on this basis at any time.

It should be noted that the statute requires more than notifying a defendant of the possibility of deportation—it also requires a warning about “exclusion from admission to the United States, or denial of naturalization.” 115 The Supreme Judicial Court held in Commonwealth v. Soto116 that a criminal defendant who was advised of the possibility of deportation and denial of naturalization, but not exclusion from the United States, was entitled to have his plea vacated as “the Legislature has put the three required warnings in quotation marks, and each of them is required to be given so that a person pleading guilty knows exactly what immigration consequences his or her guilty plea may have.”117 However, there is a growing body of case law holding that a defendant cannot prevail in a motion for a new trial if he “has been warned under the statute of the very consequence with which he must subsequently contend.”118 Put differently, the defendant must prove that she faces the “actual[] prospect” of a consequence that the judge failed to include in the plea colloquy.119 Indeed, the Supreme Judicial Court has stated that a defendant must show that the Federal government has “taken some step toward deporting him”; that the government has an express written policy of initiating deportation proceedings against immigrants like the defendant; that the defendant intends to travel and faces a “substantial risk” of exclusion from the U.S.; or that the conviction would “doom” an application for naturalization.120 Criminal counsel should consult with an immigration attorney to determine the full extent of the consequences flowing from a conviction, because some of the case law misunderstands federal immigration law and correspondingly misconstrues the nature of the consequences listed in the alien warning statute.121

For pleas occurring prior to August 28, 2004, “[t]here is a strong suggestion . . . that the remedy afforded by G.L. c. 278, § 29D, to vacate the judgment and enter a plea of not guilty, is not available after” the noncitizen client has been physically deported.122 For pleas and admissions occurring on or after August 28, 2004, the amended statute specifically states otherwise.123

Ineffective Assistance of Counsel

The Supreme Court has held, in Padilla v. Kentucky, that defense counsel has a duty under the Sixth Amendment to advise a client of the immigration consequences of pleading guilty.124 The Court held that Strickland v. Washington applied to such cases; thus, a defendant must prove that:

• his attorney’s “representation fell below an objective standard of reasonableness;” and

• he was prejudiced as a result of defense counsel’s performance.125

Failure to warn about the immigration consequences of a guilty plea, or misadvising a client about those immigration consequences, constitutes ineffective assistance of counsel and can form the basis for a motion to vacate the plea. The Court held that if the immigration consequences are “succinct, clear and explicit,” defense counsel has a duty to provide substantive advice to her client about those consequences.126 Even if the consequences are “not succinct and straightforward,” the attorney still has an obligation to notify a client that a plea may result in immigration consequences.127 Once a client is able to prove that his counsel failed to warn or misadvised of immigration consequences, he must also prove that the outcome of his criminal case would have been different.128

In 2011, the Supreme Judicial Court of Massachusetts (SJC) decided Commonwealth v. Clarke, interpreting the U.S. Supreme Court decision in Padilla v. Kentucky and clarifying a number of issues left unresolved by Padilla.129 In Clarke, the Court found that Padilla is retroactive to April 1, 1997.130 The Court also enumerated what the defendant is required to show to prove prejudice.131 The decision provides a clear framework for Padilla motions filed in Massachusetts state courts.

Expungement and Pardon

Expungement

The use of expungements to ameliorate deportation consequences of a criminal conviction evolved from case law. An expungement has been defined in this manner:

It is not simply the lifting of disabilities attendant upon conviction and a restoration of civil rights, though this is a significant part of its effect. It is rather a redefinition of status, a process of erasing the legal event of conviction or adjudication and thereby restoring to the regenerative offender his original status ante.132

Unfortunately, the BIA has precluded the use of expungements to defeat deportability.133 The BIA reasoned that the 1996 federal definition of “conviction” redefined the term for immigration purposes, precluding the effectuation of any state rehabilitative actions which do not vacate a conviction on the merits or on any ground related to the violation of a statutory or constitutional right in the underlying criminal proceeding.134

Pardons

Only full and unconditional executive pardons may be used to defeat deportability, although these will not assist narcotics offenders. Legislative pardons may not be used. Pardons can be used for noncitizens convicted of crimes of moral turpitude and aggravated felonies.135 A noncitizen pardoned of a crime will not be precluded from showing good moral character.136

Massachusetts Post-Conviction Motions, Writs, Etc.

One should not view G.L. c. 278, § 29D and Padilla v. Kentucky as the only remedies under Massachusetts law for a noncitizen client. Counsel should always consider post-conviction motions pursuant to Rules 25, 29, or 30 of the Massachusetts Rules of Criminal Procedure.137 There are a wide variety of situations in which such motions may be useful and the entire history of the client’s prior proceeding must therefore be fully examined. For example, it may be possible pursuant to Rule 29 to have a sentence revised below the current aggravated felony threshold.138 Counsel may also consider bringing an inadmissibility or removal case (based upon a criminal conviction) before a federal court on a Writ of Error Coram Nobis or a Writ of Audita Querela.

Appendix 1: Analyzing the Immigration Consequences

In each case in which a client is a noncitizen, defense counsel should consult the following “road map,” to assist in determining the immigration consequences of criminal conduct:

1. Determine the immigration status of the client. If a U.S. citizen, stop – (but verify). The immigration laws do not apply to U.S. Citizens. If not:

2. Determine the client’s exact immigration status and all potential routes to U.S. citizenship or any other immigration status;

3. Obtain the client’s complete prior criminal record, from every jurisdiction;

4. Make sure you are aware of and understand all pending charges;

5. Determine if any prior criminal charges, even if they did not result in conviction, could affect the client’s current or potential immigration status; if so, consider all possible ways to vacate, withdraw pleas, appeal, attack collaterally, revise, revoke, etc.;

6. Analyze the potential effects of pending charges on immigration status, making sure to think about the specific threats of inadmissibility and removal from the United States as well as denial of future benefits like other noncitizen status and U.S. citizenship;

7. Consider a plea or otherwise structured disposition that would avoid immigration consequences. Some examples include: 1) Is there a possible disposition that is not a conviction (e.g., pretrial probation); 2) Can the complaint/indictment be amended to an offense that causes less severe immigration consequences; 3) Can the defendant negotiate a sentence with less drastic immigration consequences (e.g., less than a one year sentence on a theft offense or crime of violence, or consecutive (on and after) sentences of less than one year on multiple such offenses); or, 4) Are there multiple charges, only some of which cause immigration consequences? If so, can a disposition be negotiated in which convictions and/or sentences of one year or more are only received on the offenses that do not carry immigration consequences for such convictions and/or sentences;

8. Always try to avoid an “aggravated felony” conviction;

9. Consider whether any waivers are or will be available to the client in immigration court to mitigate immigration consequences;

10. Consider all possible post-conviction strategies;

11. Discuss the client’s goals related to immigration (e.g. does the client care more about the immigration consequences or more about avoiding jail time);

12. Advise the client not to leave the U.S., apply for any immigration benefit or attempt naturalization without consulting with an immigration specialist.

Appendix 2: Summary Chart of Inadmissibility and Deportability

Grounds of Inadmissibility

8 U.S.C. §1182(a)(2)Grounds of Deportability

8 U.S.C. §1227(a)(2)  CRIME INVOLVING MORAL TURPITUDE

Conviction or admission of sufficient facts for one CIMT makes one inadmissible unless

• 1 crime committed under 18 and at least 5 years before admission, OR

• Maximum possible penalty is 1 year or less AND sentence is 6 months or less

 CRIME INVOLVING MORAL TURPITUDE

Conviction for one CIMT makes one deportable if

• Conviction is within 5 years of admission where a sentence of at least one year may be imposed

Conviction for 2 CIMTs at any time, not arising out of a single scheme of criminal conduct makes person deportable.

NB: the definition of conviction for immigration law differs from state law.

CONTROLLED SUBSTANCES

• Conviction or admission of any crime/acts relating to a controlled substance as defined by 21 USC §802.

• Reason to believe person is a drug trafficker

• Currently a drug abuser or addict as found by a doctor

 CONTROLLED SUBSTANCES

• Conviction of any drug offense except 1 offense of 30 grams or less of marijuana

• Includes conspiracy or attempt

• If found to be a drug abuser or addict at ANY time after admission.

MULTIPLE OFFENSES

• One is inadmissible if CONVICTED of 2 or more crimes (of any type – even if in a common scheme) in which the aggregate sentence was 5 years or more

 N/A PROSTITUTION See 8 USC 1182(a)(2)(D)Not separate deportable charge, but check CIMT. Not a separate inadmissible offense FIREARM OFFENSES

• Conviction for any crime of buying, selling, using, owning, possessing or carrying any firearm or destructive device (18 USC §921).

• Includes conspiracy and attempt

• May include crimes for which possession or use is an element

Not a separate inadmissible offense DOMESTIC VIOLENCE – conviction for:

• DV

• Stalking

• Child abuse

• Child neglect

• Child abandonment

• Violation of criminal or civil protective orders (conviction not necessary)

• Applies to spouses, household members, children, and others.

 AGGRAVATED FELONY – 8 U.S.C. § 1227 (a)(2)(A)(iii)

[agg. Fel. is defined at 8 U.S.C. 1101(a)(43)]

Common Aggravated Felonies:

Requires only a conviction:

• murder, rape, sexual abuse of a minor

• drug trafficking

• firearms trafficking

• running a prostitution business

• fraud or tax evasion where the loss is $10,000.

• failure to appear by a defendant for service of sentence (underlying crime must be punishable by 5 years or more)

• failure to appear in court to answer/dispose of a felony charge.

Requires a conviction and a sentence of
imprisonment for 1 year or more:

• crime of violence (as defined by 18 USC §16)

• theft offense

• obstruction of justice

• document (passport) fraud

 MISC (8 U.S.C. §1182)

• aliens involved in serious criminal activity who have asserted immunity from prosecution.

• Human trafficking

• Money laundering

• Security related grounds

• Terrorist activity

• Aliens previously removed

• Etc…

MISC (8 U.S.C. §1227)

• Smuggling of aliens

• Marriage fraud

• Espionage, sabotage, treason, sedition.

• Terrorist activities

• Selective service violations

• Falsification of docs

Appendix 3: Immigration Consequences of Selected Massachusetts Offenses Reference Chart

DISCLAIMER: This document is meant for criminal defense attorneys ONLY and is not intended for use by immigration practitioners, Homeland Security attorneys, or Immigration Judges. The analysis of offenses is deliberately conservative, because criminal defense practitioners must be conservative in their immigration advice to their noncitizen clients. For some offenses, viable arguments may exist to contest removability in immigration proceedings that are contrary to our analysis, but it is beyond the scope and purpose of this chart. In order to protect defendants to the fullest extent, the most conservative analysis is required.

Furthermore, this chart analyzes individual offenses in a vacuum. The actual impact of an offense will vary dramatically depending on the client’s immigration status, prior criminal record, and other pending charges. Because immigration consequences of crimes is a complex and ever-evolving area of law, practitioners should use this chart in conjunction with the attached article, “Immigration Consequences of Massachusetts Criminal Convictions” and only as a starting point. These documents are not a substitute for legal research.

© Committee for Public Counsel Services Immigration Impact Unit, August 2012. The original version of this chart was published by Dan Kesselbrenner and Wendy Wayne in July 2006. Dan Kesselbrenner, Executive Director of the National Immigration Project of the National Lawyers Guild, contributed significantly to this version and we thank him for his invaluable input

 

HOW TO USE THIS CHART:

For each criminal offense listed, the chart is divided into three categories: aggravated felony, crime involving moral turpitude (CIMT) and other grounds of inadmissibility or deportability. The chart then indicates the likelihood that an offense would be deemed to be an aggravated felony, CIMT, and/or some other specified crime-related ground of inadmissibility or deportability under immigration law.

To clarify the likelihood of an offense being an aggravated felony, CIMT or other ground, we will use the terminology as defined below:

1. YES—The immigration statute and/or case law clearly deem this offense to constitute an aggravated felony, CIMT and/or any additional grounds identified under column 5.

2. LIKELY—The immigration statute and/or case law may not be directly on point or clearly indicate that this offense is an aggravated felony, CIMT, etc. However, analyzed in the context of relevant immigration case law, the offense is likely to be deemed as such by immigration officials and/or the immigration courts.

3. POSSIBLE—The immigration statute and/or case law are unclear as to whether this offense would constitute an aggravated felony, CIMT, etc., and there are unresolved legal issues both for and against such classification. Such a finding may be avoidable, depending upon such factors as how defense counsel structures a plea agreement, or under which particular prong of the offense defendant is convicted.

4. UNLIKELY—The immigration statute and/or case law may not be directly on point or clearly indicate that this offense is not an aggravated felony, CIMT, etc. However, analyzed in the context of relevant immigration case law, the offense is not likely to be deemed as such by immigration officials and/or immigration courts.

5. NO—The statute and/or case law clearly indicate that this offense is not an aggravated felony, CIMT, etc.

OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Motor Vehicle Offenses
Operating a motor vehicle after suspension	MGL c.90, §23	No	No	No	Avoid pleading to this offense and OUI at the same time.
Operating under influence (alcohol)	MGL c.90, §24	No	No	No	Pending legislation may make OUI- 3rd an aggravated felony.
Operating under influence (controlled substance)	MGL c,90, §24	No	No	Inadmissible and deportable offense as crime related to a controlled substance.8 U.S.C. §1182(a)(2)(A); 8 U.S.C. § 1227(a)(2)(B).	Not deportable offense if record of conviction does not identify drug. There is an exception to deportability for a single conviction for possessing 30 g or less of marijuana for own use. If relevant, make clear on record. See pp. 18, 21
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Dissemination of obscene matter	MGL c. 272, § 29	No	Likely	No	The pornography aggravated felony ground relates to child pornography only.
Possession of child pornography	MGL c. 272, § 29C	Yes, under 8 U.S.C. §1101(a)(43)(I) (child pornography).	Yes	No
Disturbing the peace, disorderly person, disorderly house	MGL c. 272, §53	No	No	No	Plead to this instead of other offenses that have adverse immigration consequences.
Lewd, wanton and lascivious person	MGL c. 272, §53	Unlikely, but if minor involved, keep age of the victim out of the record of conviction.	Yes	No	Try to plead to indecent exposure instead.
Indecent exposure	MGL c. 272, §53	Unlikely, but if minor involved, keep age of the victim out of the record of conviction.	Unlikely	No
Engaging in sexual conduct for a fee	MGL c. 272, § 53A(a)	No	Yes	Engaging in prostitution is also a conduct-based ground of inadmissibility under 8 U.S.C. §1182(a)(2)(D) that	Falls within the petty offense exception to inadmissibility. See pp. 22 and fn. 94
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Leaving the Scene after causing personal injury	MGL c.90, §24(a1/2)	Unlikely, but try to avoid sentence of one year or more under 8 U.S.C. §1101(a)(43)(F) (crimes of violence).	Likely, if record of conviction or police report show knowledge that D had caused injury.	No	See p. 16, fn. 68For information on the record of conviction see p.13, fn. 45
Negligent operation of a motor vehicle	MGL c.90, §24(2)(a)	No	No	No
Using a motor vehicle without authority	MGL c.90, §24(h)(2)(a)	Likely, if sentence of one year or more under 8 U.S.C. §1101(a)(43)(F) (crimes of violence).	No	No	See p. 16, fn. 68
Motor vehicle homicide (negligently)	MGL c.90, §24G	No	No	No
Motor vehicle homicide (recklessly)	MGL c.90, §24G	Unlikely	Yes	No	Pleading to negligently causing death rather than recklessly causing death is much safer plea.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
OUI with serious injury	MGL c.90, §24L	No	No	No	Pending federal legislation may make OUI-3rd an aggravated felony.
Controlled Substance Offenses141
Sale of Drug Paraphernalia	MGL c. 94C § 32I (a) and (b)	Yes, unless charged with possession with intent to sell/distribute.	Yes	Inadmissible and deportable offense as crime related to a controlled substance. 8 U.S.C. §1182(a)(2)(A); 8 U.S.C. § 1227(a)(2)(B).	See pp. 16, 18, 21To avoid the aggravated felony, plead to possession with intent to distribute.
Possession of a controlled substance	MGL c. 94C, § 34	No, unless prosecuted as a subsequent offense (prior offense is pled and proven), or if possession of flunitrazepam, under 8 U.S.C. §1101(a)(43)(B).	No	Inadmissible and deportable offense as crime related to a controlled substance. 8 U.S.C. §1182(a)(2)(A); 8 U.S.C. § 1227(a)(2)(B).	Not deportable offense if record of conviction does not identify drug. There is an exception to deportability for a single conviction for possessing 30g or less of marijuana for own use. See pp. 16, 18, 21
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
does not require a conviction, however, a single act is insufficient for “engaging.”
Attempts, Conspiracies
Attempt	MGL c.274,§6	If substantive offense is aggravated felony then conviction for attempt to commit the offense will be an aggravated felony under 8 U.S.C. §1101(a)(43)(U).	Yes, where underlying offense involves moral turpitude or where offense involves fraud.	Firearm, controlled substance, or other criminal ground where underlying offense would make a noncitizen deportable.	If possible, plead to attempt to commit an offense that does not involve fraud or trigger other immigration consequences.
Conspiracy	MGL c.274,§7	If substantive offense is an aggravated felony then a conviction for conspiracy to commit the offense will be an aggravated felony under 8 U.S.C. §1101(a)(43)(U).	Yes, where underlying offense involves moral turpitude or where offense involves fraud.	Firearm, controlled substance, or other criminal ground where underlying offense would make a noncitizen deportable.	If possible, plead to conspiracy to commit an offense that does not involve fraud or trigger other immigration consequences.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Trafficking, distribution, possession with intent to distribute a controlled substance	MGL c. 94C, §§ 32–32E	Yes, under 8 U.S.C. §1101(a)(43)(B).	Yes	Inadmissible and deportable offense as crime related to a controlled substance. 8 U.S.C. §1182(a)(2)(A); 8 U.S.C. § 1227(a)(2)(B). May also form basis for inadmissibility for controlled substance traffickers, 8 U.S.C. §1182(a)(2)(C).	Reduce to straight possession (but see possession, above). See pp. 16, 18, 21
Presence where heroin kept	MGL c. 94C, § 35	No	No	Inadmissible and deportable offense as crime related to a controlled substance. 8 U.S.C. §1182(a)(2)(A); 8 U.S.C. § 1227(a)(2)(B).	May be marginally less risky than pleading to simple possession. Because this offense does not involve distribution or trafficking, it is one option for avoiding an aggravated felony. See pp. 18, 21
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Crimes against the Person142
Violation of restraining order	MGL c. 209A, §7	Unlikely	Yes	Yes, ground of deportability under 8 U.S.C. §1227 (a)(2)(E)(violation of a protective order).	See pp. 19-20
Murder, 1st or 2nd degree	MGL c.265, §1	Yes, under 8 U.S.C. §1101(a)(43)(A) (murder) OR, if sentence of 1 year or more, §1101(a)(43)(F) (crime of violence).	Yes	Deportable offense if crime of domestic violence or child abuse under 8 U.S.C. §1227 (a)(2)(E).
Manslaughter (voluntary)	MGL c.265, §13	Yes, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable offense if crime of domestic violence or child abuse under 8 U.S.C. §1227 (a)(2)(E).
Manslaughter (involuntary)	MGL c.265, §13	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence or child abuse under 8 U.S.C. §1227 (a)(2)(E).	If possible, make the record of conviction clear that conviction was based on a reckless failure to act. This may avoid an aggravated felony conviction. See p. 16, fn. 69
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Willful and malicious destruction of property	MGL c.266, §127	Likely, if sentence of 1 year or more under 8 U.S.C. § 1101 (a)(43)(F) (crime of violence).	Yes	No	If under $250 and the only CIMT, falls within petty offense exception to inadmissibility and deportability. See pp. 17, 21
Wanton destruction of property	MGL c.266, §127	Possibly, if sentence of one year or more under 8 U.S.C. § 1101 (a)(43)(F) (crime of violence).	Likely	No	If under $250 and the only CIMT, falls within the petty offense exception to inadmissibility and deportability. See pp. 17, 21
Removing a vehicle identification number	MGL c.266, §139	Likely, if the sentence is 1 year or more, under 8 U.S.C. §1101 (a)(43)(R) (forgery, etc) OR, If the loss to the victim exceeds $10,000, under 8 U.S.C. §1101 (a)(43)(M)(i).	Yes, for those offenses involving fraud.	No	Plead to a specific loss finding of $10,000 or less.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Assault	MGL c.265, §13A(a)	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crimes of violence).	Unlikely	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).	May preserve arguments in imm. court if record shows no physical force used, attempted or threatened. See p. 16, fn. 68
Assault and battery (A&B)	MGL c.265, §13A(a)	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence). May preserve arguments for imm. court if record of conviction shows no physical force used, attempted or threatened. Try to plead to de minimus touching. See p. 15, fn. 68	Unlikely	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).	NOTE: Although case law indicates that A&B with de minimus touching may not be a crime of violence, it is still regularly charged as such in immigration court and thus currently may still be an aggravated felony despite the case law.
Aggravated A&B	MGL c.265, §13A(b)	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence). See p. 15, fn.68	Likely	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).
Indecent A&B under 14	MGL c.265, §13B	Yes, under 8 U.S.C. §1101(a)(43)(A) (sexual abuse of a minor).	Yes	Deportable as crime of child abuse under 8 U.S.C. §1227 (a)(2)(E).	Amend to simple assault and battery, see A&B above. If amended, keep sentence under a year.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Assault and battery on a public official	MGL c.265, §13D	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F)(crime of violence).	Likely	No
Indecent A&B over 14	MGL c.265, §13H	Yes, if victim is under 18 under 8 U.S.C. §1101(a)(43)(A) (sexual abuse of a minor) . Yes if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence or child abuse under 8 U.S.C. §1227 (a)(2)(E).	If victim is under 18, keep this out of the “record of conviction.” See p. 13, fn. 45 Amend to simple assault and battery, see A&B above. If amended, keep sentence under a year.
A&B on a child	MGL c.265, §13J	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F)(crime of violence) unless convicted of wantonly or recklessly permitting injury to child.	Likely	Deportable as a crime of child abuse under 8 U.S.C. §1227 (a)(2)(E).	Amend to simple assault and battery, see A&B above. If amended, keep sentence under a year. OR Make clear on record of conviction that client was convicted of wantonly or recklessly permitting injury.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Reckless endangerment of children	MGL c.265, §13L	Possibly, if crime involves sexual abuse. 8 U.S.C. §1101(a)(43)(A) (sexual abuse of a minor). Likely, if sentence is 1 year or more and based on conduct, not a failure to act. 8 U.S.C. §1101(a)(43)(F) (crime of violence),	Likely	Deportable as crime of child abuse/neglect/ abandonment under 8 U.S.C. §1227 (a)(2)(E).
Mayhem	MGL c.265, §14	Yes, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).
Assault with intent to murder	MGL c.265, §15	Yes, under 8 U.S.C. §1101(a)(43)(U) (attempted murder); if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).
A&B with a dangerous weapon	MGL c.265, §15A	Yes, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Likely	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E). (continued…)	Amend to simple assault and battery, see A&B above. If amended, keep sentence under a year.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
	If record shows weapon was a firearm, deportable under 8 U.S.C. §1227(a)(2)(C).	See p. 19, fn. 85
Assault with a dangerous weapon	MGL c.265, §15B	Yes, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E). If record shows weapon was a firearm, deportable under 8 U.S.C. §1227(a)(2)(C).	Amend to simple assault, see assault above. If amended, keep sentence under a year. See p. 19, fn. 85
Attempted murder	MGL c.265, §16	Yes, under 8 U.S.C. §1101(a)(43)(U) (attempt), or if sentence is 1 year or more, under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).	Note that assault to murder is treated as attempted murder.
Armed robbery	MGL c.265, §17	Yes, if sentence of 1 year or longer, under 8 U.S.C. §1101(a)(43)(F) (crime of violence) or 8 U.S.C. §1101(a)(43)(G) (theft).	Yes	If firearm involved, deportable under 8 U.S.C. §1227 (a)(2)(E).
Unarmed robbery	MGL c.265, §19(b)	Yes, if sentence of 1 year or longer, under 8 U.S.C. §1101(a)(43)(F) (crime of violence) or 8 U.S.C.	Yes	No
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
§1101(a)(43)(G) (theft).
Rape	MGL c. 265, § 22(b)	Yes, under 8 U.S.C. §1101(a)(43)(A) (rape).	Yes	Deportable if crime of domestic violence under 8 U.S.C. §1227(a)(2)(E).	Digital rape may not be an aggravated felony.
Rape of child with force	MGL c. 265, § 22A	Yes, under 8 U.S.C. §1101(a)(43)(A) (rape, sexual abuse of a minor).	Yes	Deportable as crime of child abuse under 8 U.S.C. §1227 (a)(2)(E).
Statutory rape	MGL c. 265, § 23	Yes, under 8 U.S.C. §1101(a)(43)(A) (rape, sexual abuse of a minor).	Yes	Deportable as crime of child abuse under 8 U.S.C. § 1227(a)(2)(E). Depending on victim’s identity, may also be deportable under domestic violence ground at 8 U.S.C. § 1227(a)(2)(E).
Assault with intent to commit rape	MGL c. 265, § 24	Yes, under 8 U.S.C. §1101(a)(43)(A) (rape), and 8 U.S.C. §1101(a)(43)(F) (crime of violence) if sentence is 1 year or more.	Yes	Depending on victim’s identity, may also be deportable under domestic violence ground at 8 U.S.C. § 1227(a)(2)(E).	Amend to simple assault and battery, see A&B above. If amended, keep sentence under a year.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Kidnapping, no ransom demand	MGL c.265, §26	Yes, if sentence of 1 year or longer, under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Likely	Deportable if crime of domestic violence or child abuse under 8 U.S.C. §1227 (a)(2)(E).
Kidnapping, ransom demand	MGL c. 265, §26	Yes, under 8 U.S.C. § 1101(a)(43)(H) (extortion), OR if sentence of 1 year or longer, under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence or child abuse under 8 U.S.C. §1227 (a)(2)(E).
Custodial interference by relative	MGL c.265, §26A	Unlikely	Unlikely	Deportable as crime of child abuse under 8 U.S.C. §1227 (a)(2)(E).	Could fall under petty offense exception to inadmissibility. See p. 21
Assault with intent to commit a felony	MGL c.265, §29	Likely, if sentenced to 1 year or more, under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).
Stalking and stalking in violation of a restraining order	MGL c.265, §43(a) and (b)	Likley, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Likely	Crime of stalking under 8 U.S.C. § 1227(a)(2)(E)(i). If violated restraining order, then also deportable as violator of protection order, 1227(a)(2)(E)(ii).
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Threat to commit a crime	MGL c.275, §2	No, because cannot get sentenced to a year or more of imprisonment under this statute.	Yes, if the crime threatened involved any type of bodily harm or is otherwise a CIMT.	Deportable if crime of domestic violence or child abuse under 8 U.S.C. §1227 (a)(2)(E).	Meets the petty offense exception to inadmissibility and deportability if it is the only CIMT. See pp. 17, 21
Crimes against Property
Arson of a dwelling house	MGL c. 266, §1	Yes, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (a crime of violence).	Yes	No	Amend to negligence in cases of fire, MGL c.266, §8. Keep sentence less than a year.
Negligence in cases of fire	MGL c. 266, §8	No	No	No
Armed Burglary with person therein	MGL c.266, §14	Yes, if sentence of 1 year or more. 8 U.S.C. §1101(a)(43)(F) (crime of violence).	Yes	Deportable offense if weapon is a firearm.	See p. 19, fn. 85
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Breaking & Entering in the night time with intent to commit a felony	MGL c.266, §16	Yes, if building broken into and sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(G) (theft offense)	Yes, if intent to commit offense that is a CIMT.	No	Keep sentence less than a year and plead affirmatively to a non-turpitudinous underlying crime.
Breaking and Entering with intent to commit a misdemeanor	MGL c.266. §16A	No	Yes, if intent to commit offense that is a CIMT.		Meets the petty offense exception for inadmissibility and deportability if it is the only CIMT. See pp. 17, 21
Larceny in a building	MGL c. 266, §20	Yes, if sentence of one year or more under 8 U.S.C. §1101(a)(43)(G) (theft offense).	Yes	No
Larceny from the person	MGL c.266, §25	Yes, if sentence of one year or more under 8 U.S.C. §1101(a)(43)(G) (theft offense).	Yes	No
Receiving stolen motor vehicle	MGL c. 266, §28	Yes, if sentence of one year or more under 8 U.S.C. §1101(a)(43)(G) (theft offense).	Yes	No
Larceny of a motor vehicle	MGL c. 266, §28	Yes, if sentence of one year or more under 8 U.S.C. §1101(a)(43)(G) (theft offense).	Yes	No	Try to plead to use without authority instead of this offense, but in either case, keep sentence less than a year
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Larceny	MGL c. 266, §30	Yes, if sentence of one year or more under 8 U.S.C. §1101(a)(43)(G) (theft offense).	Yes	No	Larceny under $250 can fall into petty offense exception to inadmissibility if it is the only CIMT and sentence is 6 months or less. See p. 21
Shoplifting	MGL c.266, §30A	Yes, if sentence of one year or more, under 8 U.S.C. §1101(a)(43)(G) (theft offense).	Yes	No	1st offense, if under $100, falls under the petty offense exception to inadmissibility and deportability. See pp. 17, 21
Larceny by check	MGL c. 266, §37	Yes, where loss to the victim exceeds $10,000. 8 U.S.C. §1101(a)(43)(M)(i). This offense is unlikely to be a theft offense, but it is safest to keep sentence below a year to avoid aggravated felony classification under 8 U.S.C. §1101(a)(43)(G).	Yes	No	Plead to a specific amount that is $10,000 or less. Larceny under $250 may fall within petty offense exception to inadmissibility if it is the only CIMT and sentence is 6 months or less. See p. 21
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Possession of burglarious tools	MGL c.266, §49	Yes as an attempted theft under 8 U.S.C. §1101(a)(43)(U) if defendant receives a sentence of 1 year or more AND if record of conviction indicates that the underlying offense was to steal.	Yes, if record reveals an intent to commit an offense that is a CIMT (i.e. stealing).	No	Plead to possession of burglarious tools with intent to commit an unnamed offense. Keep record of conviction clear of evidence that the underlying offense was a theft offense. See p. 13, fn. 45
Receiving stolen property	MGL c.266, §60	Yes, if sentence of 1 year or more, under 8 U.S.C. §1101(a)(43)(G) (theft offense).	Yes	No
Carrying a dangerous weapon	MGL c. 266, §102A	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) (crime of violence).	No	Deportable offense if weapon is a firearm.	See p. 19, fn. 85
Trespassing	MGL c.266, §120	No	No	No
Vandalism	MGL c.266, §126A	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F)(crime of violence).	Yes	No
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Forgery and Crimes Against Currency
Forgery of records	MGL c.267, §1	Yes, if sentence to 1 year or more under 8 U.S.C. §1101(a)(43)(R) (forgery, etc).	Yes	No	If defendant pleads to intent to injure rather than intent to defraud, there is small chance that it would no longer be a crime involving moral turpitude. See p. 14, fn. 57
Passing counterfeit note	MGL c.267, §10	Yes, if sentenced to a year or more under 8 U.S.C. §1101(a)(43)(R) (counterfeiting).	Yes	No
Crimes Against Public Justice
Failure to Register as a Sex Offender	MGL c.6, §178H	No	Yes	No	Is better to plead to this offense rather than a substantive sex offense.
Perjury	MGL c.268, §1	Yes, if sentence 1 year or more, under 8 U.S.C. §1101(a)(43)(S) (obstruction of justice).	Yes	Inadmissible and deportable offense if perjury is related to immigration fraud.
Providing False Name or Social Security Number to Police	MGL c.268, § 34A	No	Likely	No	If the only CIMT may fall within the petty offense exception to inadmissibility only.
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
See pp. 21
Intentional or knowing False report of a crime.	MGL c.269, §34A	Yes, under 8 U.S.C. §1101(a)(43)(S) (obstruction of justice),	Likely	No
Escape	MGL c.268, §16	Likely, if:a) defendant escaped while serving a sentence for an underlying offense punishable by five years, 8 U.S.C. §1101 (a)(43)(Q); or b) if the defendant escaped before trial and is facing felony charges for which a sentence of two or more years may be imposed, §1101(a)(43)(T); or c) if sentenced to a year or more, §1101(a)(43)(F) or (S) (crime of violence; obstruction of justice).	No	No
Resisting arrest	MGL c. 268, §32B	Likely, if sentence of 1 year or more under 8 U.S.C. §1101(a)(43)(F) crime of violence).	Possibly Keep any injury to the police officer out of the record of	No
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
conviction. See p. 13, fn. 54
Witness intimidation	MGL c. 268, §13B	Yes, if sentence is 1 year or more under 8 U.S.C. §1101 (a)(43)(F) (crime of violence) or (S) (obstruction of justice).	Yes	Deportable offense if crime of domestic violence under 8 U.S.C. §1227 (a)(2)(E).
Failure to appear	MGL c. 276, §82A	Yes, if: a) failed to appear to serve sentence on offense punishable by 5 years or more (8 U.S.C. §1101(a)(43)(Q)); or b) failed to appear before trial for felony with potential sentence of 2 years or more (§1101(a)(43)(T)); or c) sentenced to 1 year or more imprisonment, under §1101(a)(43)(S) (obstruction of justice).	No	No
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Crimes against Public Peace143
Possession of firearm	MGL c. 269, §10(a)	No, unless charged under MGL c. 269, §10(d) for subsequent possession of a firearm.	No	Yes, under firearm ground of deportability. 8 U.S.C. §1227 (a)(2)(C).
Possession of a machine gun	MGL c. 269, §10(c)	Yes, under 8 U.S.C. §1101(a)(43)(E) (firearms).	No	Yes, under firearm ground of deportability. 8 U.S.C. §1227 (a)(2)(C).
Possession of a sawed–off shotgun	MGL c.269, §10(c)	No	No	Yes, under firearm ground of deportability. 8 U.S.C. §1227 (a)(2)(C).
Possession of firearm; possession of firearm without FID	MGL c. 269, §10(h)(1)	No	No	Yes, under firearm ground of deportability. 8 U.S.C. §1227 (a)(2)(C).
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Possession of ammunition	MGL c. 269, §10(h)	No	No	Unlikely a firearm offense under 8 U.S.C. § 1227(a)(2)(C). See p. 18, fn.85	Pleading to this offense instead of possession of a firearm may avoid deportability.
Crimes against Morality, Decency, etc.
Maintaining a house of prostitution	MGL c. 272, §6	Yes, under 8 U.S.C. §1101(a)(43)(K) (managing a prostitution business).	Likely	Engaging in prostitution or procuring prostitutes is also a ground of inadmissibility under 8 U.S.C. §1182(a)(2)(D) that does not require a criminal conviction.	See pp. 22 and fn. 94
OFFENSE	STATUTE	AGGRAVATED FELONY?139	CRIME INVOLVING MORAL TURPITUDE?140	OTHER GROUNDS OF DEPORTABILITY OR INADMISSIBILITY?	NOTES & REFERENCE
Open and gross lewdness and lascivious behavior	MGL c.272, §16	Unlikely, but if minor involved, keep age of the victim out of the record of conviction.	Yes	No	Try to plead to indecent exposure instead.
Dissemination of harmful matter to minors	MGL c. 272, § 28	Possibly, under 8 U.S.C. §1101(a)(43)(A) (sexual abuse of a minor).	Likely	A deportable offense under child abuse ground at 8 U.S.C. § 1227(a)(2)(E).	Pleading to possession with intent to disseminate may reduce the risk of triggering the aggravated felony ground and the child abuse ground. Preferable to plead to an offense under MGL c. 272, § 29; still a CIMT, but not an aggravated felony.