Citizenship laws for most of the world’s countries

Posted on September 13, 2012 by Mike Baker

This directory provides synopses of the citizenship laws for most of the world’s countries. We obtained information for this directory from embassies, the Library of Congress, and the Department of State. The directory also provides the address, telephone number, and fax number of most countries’ diplomatic representatives. Download pdf

United States Office of Personnel Management

Investigations Service

IS-1 March 2001

CONTENTS

INTRODUCTION AND GENERAL INFORMATION -Pages 3 through 8

Introduction – Page 3
Structure of Directory – Page 3
Reading a Country Entry -Page 4
General Information on Dual Citizenship -Page 6
United States Citizenship Information – Page 9

COUNTRY LISTINGS -Pages 11 through 219

Nations Of The World (listed alphabetically)

SUPPLEMENTAL RESOURCE INFORMATION -Pages 221 through 228

DEPARTMENT OF STATE

CONSULAR SERVICES and DESK OFFICERS

TELEPHONE NUMBERS:
African Region -Page 222
Central and South American Regions -Page 223
East Asian and Pacific Regions – Page 224
European and Canadian Regions – Page 225
Near Eastern and South Asian Regions -Page 226
Other Countries and Territories -Page 227

LIBRARY OF CONGRESS

INTERNATIONAL LAW DIVISION

ADDRESSES AND TELEPHONE NUMBERS:
Law Library, Reading Room – Page 228
Directorate of Legal Research – Page 228
Western Law Division – Page 228
Eastern Law Division -Page 228

INFORMATION AND DIRECTORY ASSISTANCE

TELEPHONE NUMBERS – Page 229

Introduction and
General Information

INTRODUCTION

This directory provides synopses of the citizenship laws for most of the world’s countries. We obtained information for this directory from embassies, the Library of Congress, and the Department of State. The directory also provides the address, telephone number, and fax number of most countries’ diplomatic representatives.

We have made this document as accurate and up-to-date as our resources have allowed. The information contained in this directory should not be considered formal legal advice. It is intended to serve as a quick reference document, summarizing the citizenship laws of foreign nations and providing contact information. You should direct detailed or specific questions to a nation’s specific diplomatic representatives.

Readers should understand that citizenship laws are often amended to keep in step with political changes. A considerable time lapse between the enactment of new laws and their actual implementation is not uncommon. Moreover, it is not unusual to encounter differences between a nation’s laws and its actual practices.

STRUCTURE OF DIRECTORY

This directory is an alphabetic listing of countries. The formal names of some countries are replaced by their more commonly known names. For example, the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND is the formal name of England, Wales, Scotland, and Northern Ireland. In this directory it is listed as UNITED KINGDOM.

Most countries have changed their names at one time or another throughout history. For example, the country formerly known as Burma is now known as Myanmar, while the Ivory Coast is now Cote d’Ivoire. We have listed countries by their current names. In some instances, to avoid confusion, we have listed the most recent former names of nations next to their current names.

READING A COUNTRY ENTRY

STRUCTURE: Information in each country listing is presented as follows:

CITIZENSHIP
DUAL CITIZENSHIP
LOSS OF CITIZENSHIP
ADDRESS

CITIZENSHIP: This section lists the various methods by which a person may obtain the citizenship of a country.

1. Citizenship by Birth: Citizenship is granted due to birth within the country. The legal term for this is “jus solis.” In most cases, there are few stipulations on citizenship being granted. Birth in the country automatically confers citizenship regardless of the parents’ citizenship or status.

In the case of U.S. citizens born abroad in a country under the principle of jus solis, the question arises as to whether the other citizenship continues after the child has left the country of birth. For definitive answers to questions such as this, contact the proper embassy or the U.S. Immigration and Naturalization Service.

2. Citizenship by Descent: Citizenship of a nation is passed on to a child based upon at least one of the parents being a citizen of that nation, regardless of the child’s actual country of birth. The term for this is “jus sanguinis.”

Though most countries adhere to the principle of citizenship by descent, they differ on some factors (father’s vs. mother’s rights, citizenship of one or both parents, the marital status of the parents, and others).

As a person reaches an age of maturity, continuing the condition of citizenship by birth (jus solis) or citizenship by descent (jus sanguinis) may depend on factors unique to the nation of that citizenship.

  1. Citizenship by Naturalization: This is a formal process by which persons may acquire the citizenship of a country. The process varies and citizenship is not guaranteed. Basic rules may include a period of residence, renunciation of other citizenship, and familiarity with the language and customs of the country.
  2. Citizenship by Marriage: By some nations’ laws, upon marriage, aperson is entitled to become a naturalized citizen of their spouse’s country without having to fulfill other naturalization requirements. These laws are often different for males than for females.
  3. Citizenship by Registration: In some instances, A person may acquire citizenship by registration with the national government without meeting all

naturalization requirements for that nation. Usually these persons possessblood ties to the country through immediate relatives who are citizens, or bymarriage to a citizen of that country.

DUAL CITIZENSHIP: Dual citizenship is the simultaneous possession of two citizenships. It arises because there is no common international law relating to citizenship. The most common reasons for dual citizenship are these:

Marriage to a citizen of another country.
Adoption by parents who are citizens of another country.
Birth in a country that grants citizenship by birth, to parents who arecitizens of a country that grants citizenship by descent.

Not all nations recognize that their citizens may possess simultaneous citizenship of another country. In this directory, dual citizenship is addressed in the individual country listings as either RECOGNIZED or NOT RECOGNIZED by that country.The EXCEPTION entries list any exceptions to recognition or non-recognition ofdual citizenship.

LOSS OF CITIZENSHIP: This category is divided into two parts, the voluntary and the involuntary loss of citizenship.

1. Voluntary Loss of Citizenship: Most countries have laws which specify how a citizen may voluntarily renounce citizenship. Precise information on renouncing citizenship may be obtained from the country’s embassy or consulate. In most cases, the person can do all the necessary paper work through the embassy or consulate. Under the laws of some nations the person must return to the home country to complete the renunciation process.

Voluntary renunciation of citizenship may be very difficult for citizens of some countries. The U.S. Department of State may be of assistance to citizens who wish to gather information concerning the voluntary renunciation of citizenship of a particular country.

2. Involuntary Loss of Citizenship: This entry lists the reasons a particular country may choose to withdraw the citizenship of one of its citizens.

Most countries’ laws dictate the loss of citizenship upon a citizen’s voluntary acquisition of another country’s citizenship. The interpretation of what constitutes “voluntary” is not uniform, however. In certain countries it is not considered voluntary unless the person makes an explicit declaration of the citizenship of the other country. For example, in Austria a person automatically obtains Austrian citizenship when appointed as a professor at an Austrian university. Some countries interpret this as “involuntary”citizenship and, according to their laws, citizenship is not lost. Other countries state that if a citizen obtains another nationality, and makes no effort to renounce it, citizenship is lost.

Loss of naturalized citizenship usually occurs when the naturalized citizen:

Resided for a specified time in another country.
Obtained citizenship through fraud or false statements.
Did not renounce previous citizenship.

Even if a nation’s laws state that under certain circumstances citizenship is automatically removed, until officials of the government or embassy are informed, the embassy will probably still retain that person’s name in its citizenship records.

ADDRESS OF THE EMBASSY: This entry gives the address, phone number, and fax number of the representatives of the country in the United States. Most nations have an embassy in Washington, DC; some countries have a United Nations Mission in New York City or a trade mission elsewhere.

There are some countries that either do not have a representative in the United States or which desire that their representatives not be contacted. They have provided us with no address or contact information. Two sources of information about these nations are the Library of Congress’s International Law Library and the Department of State’s Office of Consular Affairs. Although these are not primary sources of information, they can be helpful in resolving citizenship questions.

GENERAL INFORMATION ON DUAL CITIZENSHIP

PROBLEMS WITH DUAL CITIZENSHIP: Dual citizenship is not particularly desirable in many countries because a dual citizen is sometimes placed in a situation in which their obligation to the country is in conflict with the laws of the other country. An example is the problem of conflicting military obligations. In addition, a person’s dual citizenship may hamper efforts to provide diplomatic or consular protection when the person is abroad.

The majority of countries do not recognize dual citizenship. That is, their governments do not recognize a person’s prerogative to the rights, privileges, or immunities that may be the prerogatives of citizens of the other nation.

HOW DUAL CITIZENSHIP IS ACQUIRED:

  1. Dual Citizenship by Birth: A child born abroad to United States citizens will acquire not only United States citizenship but perhaps the citizenship of the country in which the child was born (jus solis). Similarly, a child born in the United States to foreign parents may acquire both U.S. citizenship (jus solis) and the citizenship of the parents (jus sanguinis).
    1. Dual Citizenship by Marriage: Dual citizenship can occur when a person automatically acquires their spouse’s citizenship upon marriage.
    2. Some countries provide that citizenship will be lost upon the voluntary acquisition of another citizenship. In the case of citizenship by marriage, some nations consider that, simply by marriage, their citizen did not voluntarily acquire the foreign citizenship and that, therefore, their original citizenship is not lost.
  2. Dual Citizenship by Naturalization: A country may allow citizens who obtain foreign citizenship to retain their original citizenship. The country from which the person is obtaining their second citizenship may not require the person to renounce their former citizenship.
  3. Dual Citizenship by Treaty: Some countries have agreements with certain other countries recognizing dual citizenships among their respective populations.
  4. Dual Citizenship by Default: A person naturalized elsewhere without the approval of the country of origin might be considered to retain their original citizenship. If the original country is not notified that another citizenship has been acquired, it is possible for both citizenships to be officially documented.

RESOLVING DUAL CITIZENSHIP:

  1. Majority Divestiture: This option allows a person with dual citizenship, upon reaching the age of majority (i.e., age of legal adulthood), to decide which citizenship to keep. Many countries have this provision in their constitution, charter, or in their citizenship laws. This is often used in cases of dual citizenship which arise due to adoption.
  2. Generational Requirement: This consists of limiting the principle of citizenship by descent (jus sanguinis) to the first or second generations of individuals born and residing abroad.
  3. Registration: In countries where non-native children must be registered at their parent’s country’s consular office shortly after birth, omitting this registration documentation can make it impossible or difficult for the child to later acquire the citizenship of either country.
  4. Delayed Conferment of Citizenship: Persons, not born in the country where their parents are citizens, can be given the right to acquire their parents’ citizenship upon renunciation of any other citizenship.
  5. Diplomatic Restrictions: Children of diplomatic representatives are prevented by international law from acquiring the jus solis citizenship of the country in which their parents are serving.
  6. Restriction By Law: A country may forbid its citizens to become naturalized in a foreign state, except with the original nation’s permission. When permission is granted, the person loses their former citizenship.
  7. Administrative Option: A country may grant conditional freedom of expatriation and automatically release from its allegiance persons who become naturalized citizens of another country.

THE FOLLOWING PAGES USE THE UNITED STATES CITIZENSHIP
LAWS ENTRY AS AN EXAMPLE TO ILLUSTRATE THE LAYOUT
OF COUNTRY ENTRIES.

THE UNITED STATES ENTRY DOES NOT APPEAR LATER IN THE COUNTRY LISTINGS

CITIZENSHIP: Citizenship is based upon Title 8 of U.S. Code 1401 – 1409, dated 1986.

BY BIRTH: Child born within the territory of the United States, regardless of the citizenship of the parents.
BY DESCENT:
Child born abroad, both of whose parents are citizens of the United States, and one of whom resided in the United States before the birth of the child.
Child born abroad, one of whose parents is a citizen of the United States who resided in the United States for at least five years before the birth of the child.
BY NATURALIZATION: United States citizenship may be acquired upon fulfillment of the following conditions:
Person must be 18 years old, have resided in the United States for at least five years as a lawful permanent resident, be able to speak, read, and write English, be of good moral character, be familiar with the history and culture of the country, be attached to the principles of the United States Constitution, and have renounced former citizenship.
Foreign citizens who marry citizens of the United States need only reside in the United States for three years, but must still fulfill the other conditions.
The Child Citizenship Act of 2000, which became effective on February 27, 2001, serves to facilitate the acquisition of U.S. citizenship of the foreign-born children of U.S. citizens – both biological and adopted – who did not acquire citizenship at birth. This act amended the provisions of Sections 320 and 322 of the Immigration and Nationality Act.

Section 320: Automatic Acquisition of U.S. Citizenship for Children Born Outside of the United States and Residing Permanently in the United States

The child must meet the following requirements:

  • Have at least one U.S. citizen parent by birth or naturalization;
  • Be under 18 years of age;
  • Live in the legal and physical custody of the U.S. citizen parent;
  • Be admitted as an immigrant for lawful permanent residence; and

If the child is an orphan, the adoption must be final. If the adoption must be finalized in the United States, citizenship is acquired when the adoption is finalized.

What Is the Effective Date of the Child Citizenship Act?

The effective date of the Child Citizenship Act is February 27, 2001. Children who met the requirements of amended Section 320 on that date automatically became American citizens. Children who were 18 years of age or older on that date are not eligible to take advantage of the Child Citizenship Act. They may, however, have acquired U.S. citizenship in accordance with the provisions of the Immigration and Nationality Act that the Child Citizenship Act superseded. Questions regarding these provisions may be directed to the consular sections of U.S. embassies and consulates abroad.  In addition, questions may also be e-mailed to ASKPRI@state.gov.

What Happens When the Child is Adopted in the United States?

A child who enters the United States on an IR4 visa (to be adopted in the United States) will only acquire U.S. citizenship when the adoption is full and final in the United States.

How Does a Child Show Lawful Permanent Residence?

A child who has lawful permanent residence (LPR status) will have a permanent resident card (green card). Another way to show LPR status is the I-551 stamp in the child’s passport. This stamp shows that the child has entered the United States on an immigrant visa and/or has been admitted as a lawful permanent resident.

Must the Child Get a Certificate of Citizenship?

A child who has acquired U.S. citizenship in accordance with Section 320 of the Immigration and Nationality Act does not have to obtain a Certificate of Citizenship in order to be considered a U.S. citizen; however, if you want to obtain such a certificate, you need to submit a completed N-600 form (Application for Certificate of Citizenship) and the requisite filing fee to any Field Office of the Bureau of Citizenship and Immigration Services of the Department of Homeland Security. The form may be obtained by going to www.uscis.gov/portal/site/uscis/menuitem and entering N-600 in the search box.

How Does the Child Get a Passport Under the Child Citizenship Act?

You will need the following when the child applies for a passport:

  • Proof of the child’s relationship to the U.S. citizen parent. For the biological child of the U.S. citizen this will usually be a certified copy of the foreign birth certificate (and translation if not in English). In circumstances where it is not clear that the birth certificate is adequate proof of a biological relationship between the child and the U.S. citizen parent, other types of evidence, including medical and/or DNA tests, may be required. For an adopted child, it is a certified copy of the final adoption decree (and translation if not in English);
  • The I-551 stamp endorsed in the child’s foreign passport showing that the Bureau of Citizenship and Immigration Services admitted the child for lawful permanent residence , or the child’s permanent resident card (green card);
  • Proof of identity of the U.S. citizen parent(s)
  • Passport application, passport photographs and fees. Go to Passport Services for forms and full instructions.

Can My Child Get a Birth Certificate (Consular Report of Birth Abroad or CROBA) from the Embassy or Consulate?

No. Only a child who acquired U.S. citizenship at birth can get a birth certificate from an embassy or consulate. A child who acquires U.S. citizenship in accordance with the provisions of the Child Citizenship Act of 2000 is deemed to be a naturalized U.S. citizen.

Section 322: Children Born and Residing Outside of the United States; Conditions for Acquiring Certificate of Citizenship

Another section of the Child Citizenship Act provides that children (biological or adopted) of U.S. citizens who are born and reside abroad, and who do not become U.S. citizens at birth can apply to the Bureau of Citizenship and Immigration Services for a Certificate of Citizenship if the following conditions are met.

  • At least one parent of the child is a U.S. citizen by birth or naturalization;
  • The U.S. citizen parent has been physically present in the United States for a total of at least five years, at least two of which are after the age of 14. If the child’s U.S. citizen parent cannot meet the physical presence requirement, one of the child’s U.S. citizen grandparents can meet it.
  • The child is under the age of eighteen;.
  • The child lives abroad in the legal and physical custody of the U.S. citizen parent and has been lawfully admitted into the United States as a nonimmigrant.
  • If the child is an orphan, the adoption must be finalized.

Children who acquire citizenship under this new provision do not acquire citizenship automatically. They must apply to the Bureau of Citizenship and Immigration Services for a Certificate of Citizenship by completing form N-600K and remitting the necessary filing fee. The form may be submitted to any field office of the Bureau of Citizenship and Immigration Services and may be obtained by going to www.uscis.gov/portal/site/uscis/menuitem and entering N-600K in the search box.

Who May File the N-600K Form?

The form may be filed by a U.S. citizen parent. If, however, the U.S. citizen parent has died during the preceding five years, the form may be filed by either a U.S. citizen grandparent or a U.S. citizen legal guardian.

May the N-600K Form be Filed from Overseas?

Yes.

When does the Child Acquire U.S. Citizenship Under Section 322?

The child acquires U.S. citizenship only when the Bureau of U.S. Citizenship and Immigration Services approves the application for the Certificate of Citizenship.

OTHER: Certain provisions for granting citizenship have been extended to persons who have performed specific military service to this country. For more information, contact the U.S. Citizenship and Immigration Services.

DUAL CITIZENSHIP: RECOGNIZED

Based on the U.S. Department of State regulation on dual citizenship (7 FM 1162), the Supreme Court of the United States has stated that dual citizenship is a “status long recognized in the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact he asserts the rights of one citizenship does not without more mean that he renounces the other,” (Kawakita v. U.S., 343 U.S. 717) (1952).

The Immigration and Nationality Act (INA) does not define dual citizenship or take a position for it or against it. There has been no prohibition against dual citizenship, but some provisions of the INA and earlier U.S. nationality laws were designed to reduce situations in which dual citizenship exists.

United States law does not contain any provisions requiring U.S. citizens who are born with dual citizenship or who acquire a second citizenship at an early age to choose one or the other when they become adults (Mandeli v. Acheson, 344 U.S. 133) (1952). The current citizenship laws of the United States do not specifically refer to dual citizenship.

While recognizing the existence of dual citizenship and permitting Americans to have other citizenships, the U.S. Government does not endorse dual citizenship as a matter of policy because of the problems that it may cause. Claims of other countries on dual-national U.S. citizens often place them in situations where their obligations to one country are in conflict with the laws of the other.

VOLUNTARY: Voluntary renunciation of United States citizenship is permitted by law. However, renunciation can only be made at a U.S. Consulate outside the United States.
INVOLUNTARY: The following are grounds for involuntary loss of United States citizenship:
Person commits treason against the United States.
Person takes an oath of allegiance to a foreign state.
Person joins the armed forces of a country at war with the U.S.

ANY QUESTIONS concerning citizenship policy of the U.S. or its territories should be sent to the address below:

U.S. Department of State Office of Consular Affairs Washington, DC 20520

Telephone: 202-647-4000

Country Listings

IN THE COUNTRY LISTINGS THAT FOLLOW, THE WORDS
CITIZENSHIP and NATIONALITY ARE SYNONYMOUS,
AS ARE THE WORDS CITIZEN and NATIONAL.

THE INITIALS SSR REFER TO SOME STATES AS
“SOVIET SOCIALIST REPUBLIC,” THAT IS, FORMER MEMBER
STATES OF THE FORMER SOVIET UNION.
SUCH USE IS ARCHAIC.

UKC-COMMONWEALTH NATIONS ARE, OR HAVE BEEN,
MEMBERS OF THE UNITED KINGDOM AND COLONIES OR THE
COMMONWEALTH OF NATIONS. CITIZENSHIP STATUS IN THESE
STATES IS OFTEN COMPLEX DUE TO THE VARIETY OF NATIONAL
STATUS A PERSON MAY HAVE.

An individual may be a citizen of the individual state itself,
a British Dependent Territory Citizen, a British Overseas Citizen, a
British Subject, a British Protected Person, a Commonwealth Citizen,
or have dual citizenship in combination with one of these.

A careful examination of the citizenship basis of UKC-Commonwealth
nationals may be necessary to determine their status with accuracy.

CITIZENSHIP: Citizenship laws are based upon the Official Gazette of the Ministry of Justice for the Republic of Afghanistan dated March 19, 1992.

BY BIRTH: Birth within the territory of Afghanistan does not automatically confer citizenship. Exception is a child of unknown/stateless parents.
BY DESCENT: Child whose mother or father is a citizen, regardless of the country of birth.
MARRIAGE: Foreign national who marries a citizen of Afghanistan is granted citizenship upon application.
BY NATURALIZATION: Afghan citizenship may be acquired upon fulfillment of the following conditions: Person was born in Afghanistan and has resided continually in country for at least five years.

DUAL CITIZENSHIP: NOT RECOGNIZED. Exceptions: A former citizen of Afghanistan, who fled the country due to political instability or war and has acquired new citizenship, may still hold “unofficial” Afghan citizenship. This is recognition that those who fled the country might some day want to return as Afghan citizens without losing new citizenship.

The Afghani spouse of a foreign national is not required to renounce Afghan citizenship unless demanded by the spouse’s country.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of Afghan citizenship is permitted by law. Contact the Embassy for details and required paperwork. The following persons are not allowed to renounce citizenship:
Person who has continuing financial obligations to the government or other institutions.
Person who has been convicted of a crime and sentenced to jail.
Persons involved in national security, whose loss to the country might endanger Afghan security.
INVOLUNTARY: The following is grounds for involuntary loss of Afghan citizenship: Person voluntarily acquires foreign citizenship and does not fall under the exempted status described under “Dual Citizenship.” Persons concerned with dual citizenship should not assume their Afghan citizenship was lost by default. Embassy should be contacted and citizenship formally renounced.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Republic of Afghanistan, Consular Section 2341 Wyoming Ave., NW Washington, DC 20008

Embassy/Consular Section: 202-234-3770/71 Fax: 202-328-3516

www.afghan-web.com

CITIZENSHIP: Current Albanian policy toward citizenship is being debated in Parliament. According to the Albanian Consulate, the new Constitution will be the basis for all laws. Out of this Constitution will come the country’s citizenship laws.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Republic of Albania 1511 K Street, NW, Suite 1000 Washington, DC 20005

Embassy/Consular Telephone: 202-223-4942/8187 or 202-393-6255 Fax: 202-628-7342
www.undp.tirana.al
www.albanian.com

CITIZENSHIP: Citizenship is based upon the Code of Algerian Nationality, dated December 15, 1978.

BY BIRTH: Birth within the territory of Algeria does not automatically confer citizenship. The exception is a child born to unknown or stateless parents.
BY DESCENT:
Child of an Algerian father, regardless of the country of birth.
Child of an Algerian mother and an unknown or stateless father, regardless of the country of birth.
BY NATURALIZATION: Algerian citizenship may be acquired upon fulfillment of the following conditions: Person has resided in Algeria for at least seven years, (18 months if the person was born abroad to an Algerian mother or father), is of good morality, good health, has no criminal convictions, is at least 21 years of age, has assimilated into Algerian society and has a secure means of support.

DUAL CITIZENSHIP: NOT RECOGNIZED.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of Algerian citizenship is permitted by law. Contact the Embassy for details and required paperwork.
INVOLUNTARY: The following are grounds for involuntary loss of Algerian citizenship:
Person voluntarily acquires a foreign citizenship.
Person’s employment with a foreign nation or company is not in the interest of Algeria.
Naturalized citizen is convicted of a crime (abroad or in Algeria) and sentenced to five years or more.
Naturalized citizen is involved in acts incompatible with the interests of Algeria.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Democratic and Popular Republic of Algeria Consular Section 2118 Kalorama Rd., NW Washington, DC 20008

Embassy/Consular Telephone: 202-265-2800 Fax: 202-667-2174 CITIZENSHIP: Per information provided by the U.S. Consulate General in Barcelona, Spain: the information provided does not include recent modifications approved by the Andorran Parliament on October 27, 1992, but never implemented.

BY BIRTH: Birth within the principality of Andorra does not automatically confer citizenship. The exceptions are children of unknown parents or children born in Andorra if at least one parent was also born in Andorra.
BY DESCENT: Child, at least one of whose parents is a citizen of Andorra, regardless of the country of birth.
BY NATURALIZATION: Andorran citizenship is very difficult to obtain. The following are those most easily able to apply for citizenship:
Child born outside Andorra to an Andorran mother or father who was born outside Andorra.
Those married to an Andorran who has lived at least three years in the country.
Child age 14 and under, adopted by an Andorran.
Application by individuals who have 25 years of residence in Andorra.

DUAL CITIZENSHIP: NOT RECOGNIZED. Exception: Due to the fact that the Andorran government has no way of knowing if a person has become a citizen of another country, dual citizenship can arise through default. For those who must be sure of no dual citizenship, it is best to contact the Andorran government and inform them of the change of citizenship.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of citizenship is permitted by law under the following conditions: Person has established residency abroad, has acquired another nationality, and has renounced citizenship in front of a notary. Given that Andorra has no representatives in the United States, it is assumed that renunciation must take place in Andorra.
INVOLUNTARY: The following are grounds for involuntary loss of Andorran citizenship:
Person voluntarily acquires a foreign citizenship. (See “Dual Citizenship: Exception”)
Person voluntarily enrolls in a foreign army.
Person holds a foreign political office.

ANY QUESTIONS concerning citizenship or information about Andorra should be directed to the address below:

Embassy of the Principality of Andorra to the United States U.S. Embassy Madrid 2 United Nations Plaza (25th Floor) Or Serrano 75 New York, NY 10017 28006-Madrid

Telephone: 212-750-8064 Telephone: 34-91-587-2200 Fax: 212-750-6630

www.andorra.ad/cniavk.html

CITIZENSHIP: Citizenship laws are based upon Law #13/91 dated May 13, 1991.

BY BIRTH: Birth within the Republic of Angola does not automatically confer citizenship. The only exception is a child born in Angola to unknown or stateless parents.
BY DESCENT: Child at least one of whose parents is a citizen of Angola, regardless of the country of birth.
MARRIAGE: A foreign national who marries a citizen of Angola may apply for citizenship after marriage. A foreign spouse who obtains Angolan citizenship upon marriage may keep the citizenship in the event of a divorce or annulment if the marriage was entered into in good faith.
BY NATURALIZATION: Angolan citizenship may be acquired upon fulfillment of the following conditions: Person is of legal age (18), has resided in Angola for at least 10 years collectively, has an established means of support or livelihood, and is capable of integrating into Angolan society.

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: Child born abroad of Angolan parents, who obtains the nationality of the country of
birth, may retain dual citizenship until reaching the age of 18, when one citizenship must be
chosen.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of Angolan citizenship is permitted by law. Contact the Embassy for details and required paperwork. Proof of new citizenship is required.
INVOLUNTARY: The following are grounds for involuntary loss of Angolan citizenship:
Person voluntarily acquires foreign citizenship.
Naturalized citizen is convicted of crimes against the State.
Naturalized citizen serves in the military of a foreign State.
Naturalized citizenship was obtained by fraud or false statements.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Republic of Angola Consular Section 1899 L St., NW STE 500 Washington, DC 20036

Embassy/Consular Telephone: 202-785-1156 Fax: 202-785-1258

www.angola.org

CITIZENSHIP: Citizenship is based upon the Citizenship Law of Antigua and Barbuda, dated November 1, 1981. (UKC-Commonwealth Nation). Automatic citizenship for:

Persons Born On or Before October 31, 1981…

…in Antigua and Barbuda.
…outside the nation if either parent was a citizen of Antigua and Barbuda, and
Citizens of the UKC with particular ties to Antigua, other than those listed above. (Contact Embassy when questions arise.)
BY BIRTH: Child born after October 31, 1981, in the territory of Antigua and Baruda, regardless of the nationality of the parents. The exceptions are the children born to diplomatic personnel.
BY DESCENT: Child born abroad, after October 31, 1981, at least one of whose parents was a citizen of Antigua and Barbuda.
REGISTRATION: The following persons are eligible to obtain citizenship through registration after October 31, 1981:
Person married to a citizen of Antigua and Barbuda at least three years and the marriage is still subsisting and such person is not living apart from the spouse.
Commonwealth citizen who resided in Antigua and Barbuda for more than seven years continuously.
BY NATURALIZATION: No information was provided.

DUAL CITIZENSHIP: RECOGNIZED. A citizen shall not, solely on the ground that they are or become a citizen of another country, be deprived of citizenship, refused registration as a citizen; or required to renounce citizenship of the other country, by or under any law. The citizen shall not be refused a passport of Antigua and Barbuda or have such a passport withdrawn, cancelled, or impounded solely on the ground that the person is in possession of a passport issued by some other country of which they are a citizen or be required to surrender or be prohibited from acquiring a passport issued by some other country of which they are a citizen before being issued a passport of Antigua and Barbuda or as a condition of retaining such a passport.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of Antiguan and Barbudan citizenship is permitted by Parliament. Contact the Embassy for details and required paperwork.
INVOLUNTARY: The following are grounds for involuntary loss of naturalized Antiguan and Barbudan citizenship:
Person obtains citizenship through fraud or false statement.
Person is convicted of sedition or treason against Antigua and Barbuda.

ANY QUESTIONS concerning citizenship should be directed to the address below:

Embassy of Antigua and Barbuda Consular Section Fax: 202-362-5225 3216 New Mexico Ave, NW
embantigua@aol.com
Washington, DC 20016 www.antigua-barbuda.com Embassy/Consular Telephone:

202-362-5211/5166/5122 CITIZENSHIP: Argentine citizenship is based upon Argentine Citizenship Law #346.

BY BIRTH:
Child born in Argentina, except to accredited ministers of foreign powers.
Child born in Argentine legations or on Argentine warships.
Child born in neutral waters on ships flying the Argentine flag.
BY DESCENT: Child born abroad, both of whose parents are Argentine citizens.
BY NATURALIZATION: Argentine citizenship can be applied for in two ways:
Person must reside within the Republic for at least two years.
Person must have married an Argentine citizen. (This does not automatically confer citizenship, and spouse must still fulfill the two-year residency requirement.)

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: Two groups are recognized as dual citizens. The first are children (18 and under),
born abroad, who acquire citizenship of birth country. Upon reaching maturity at age 18, however,
a declaration of allegiance must be made to one country. Citizens of Spain can hold dual
citizenship per agreement with Argentina.

LOSS OF CITIZENSHIP:

VOLUNTARY: Per Argentine consular office, citizenship can only be renounced in the capital, Buenos Aires. Papers must be signed at the police station and then the individual must appear before a judge where the renunciation must be accepted by the Argentine government.
INVOLUNTARY: The following are grounds for involuntary loss of Argentine citizenship:
Person acquires foreign citizenship, but does not fall under “Dual Citizenship.”
Person accepts employment or honors from a foreign government without permission.
Person commits fraudulent bankruptcy or has an infamous sentence.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

The Embassy of the Argentine Republic Consular Section 1600 New Hampshire Ave., NW Washington, DC 20009

Embassy Telephone: 202-238-6400 Consular Telephone: 202-238-6460/63/64 Fax: 202-238-6471 CITIZENSHIP: Citizenship laws are based upon the Constitution of Armenia dated July 5, 1995, and the Citizenship Law dated November 26, 1995.

BY RECOGNITION:
Citizens of the former SSR-Armenia living permanently in the Republic of Armenia who have not acquired citizenship in another country.
People having no citizenship and living permanently in the Republic of Armenia during the 3 years before the present law came into effect, or citizens of the former USSR who apply for citizenship.
Citizens of the former SSR-Armenia who have lived abroad since September 21, 1991, have not acquired citizenship of another country, are who were registered in the Consulate before the present law came into effect.
BY BIRTH:
A child, one of whose parents is a citizen and the other is unknown or a person having no citizenship, acquires citizenship of the Republic of Armenia.
The citizenship of a child, one of whose parents is an Armenian citizen and one a foreign citizen, will be decided by the written agreement of both parents. In the absence of agreement, the child acquires Armenian citizenship or no citizenship at all.
BY DESCENT:
Child whose parents are both citizens of Armenia is a citizen regardless of birthplace.
A child under 14 years old, whose parents acquire the citizenship of Armenia, acquires citizenship as well.
A child adopted by citizens of the Republic of Armenia acquires Armenian citizenship.
BY NATURALIZATION: Armenian citizenship may be acquired upon fulfillment of the following conditions:
Person must be 18 years old.
Person must have lived in Armenia for the last 3 years prior to application.
Person must be able to communicate in Armenian.
Person must be familiar with the Constitution of Armenia.
Exceptions to these conditions are granted for the following people:
A person who has married a citizen, or has a child, father, or mother who is a citizen of the Republic of Armenia.
A person whose parents are citizens, or was born in Armenia, and who within 3 years of their 18th birthday applies for Armenian citizenship.
A person who is Armenian by birth and has taken residence in the Republic of Armenia.
A person may resume their renounced citizenship through application.
Collective acquisition of citizenship is possible according to a decree of the President of the Republic.

DUAL CITIZENSHIP: NOT RECOGNIZED

LOSS OF CITIZENSHIP:

VOLUNTARY:
A citizen may voluntarily change their citizenship except when under criminal investigation, if a court verdict will be issued concerning them, if giving up citizenship interferes with the interests of national security, or if the person has unfulfilled duties connected with the interests of the state, enterprises, organizations, or citizens.
A child under 14, whose parents’ citizenship is renounced, loses citizenship if the child then acquires citizenship of another country.
In a case when parents have changed their citizenship, a child 14 to18 years old must consent to the same change in their own citizenship.
INVOLUNTARY:
Citizen has lived abroad for the past seven years, has failed to register at the consulate.
Citizenship acquired citizenship by breaking the law, using false references, or false documents.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

The Embassy of the Republic of Armenia Consular Section 2225 R Street, NW Washington, DC 20008

Embassy/Consular Telephone: 202-319-1976 Fax: 202-319-2982 CITIZENSHIP: Based on the Australian Citizenship Act of 1948. Since 1948 there have been numerous legislative and administrative changes, but the critical factor is usually the date of birth of the applicant and the citizenship status of the parents. (UKC-Commonwealth)

Due to the numerous changes to criteria associated with citizenship status and eligibility, for further information it is essential that interested parties contact the Australian Department of Immigration and Multicultural Affairs (DIMA).

BY BIRTH:
On January 26, 1949 Australian Law provided for acquisition of Australian citizenship by certain persons who were British subjects immediately before that date. Persons who were non-British residents at that time need to contact DIMA for further assistance.
From January 26, 1949, until August 19, 1986, with some exceptions, a person born in Australia acquires Australian citizenship automatically.
On or after August 20, 1986, a person born in Australia must have at least one parent who is either an Australian citizen or a permanent resident.
A person born in any external territory that has been, or still is, under Australian Government control should contact the nearest DIMA office for clarification of their status or eligibility for citizenship.
BY DESCENT: (Based on date of birth and proper registration of birth.)
A child who is under 18 years of age at the time of the application may acquire citizenship by descent through registration at any Australian overseas post, provided: At least one parent is an Australian citizen at the time of the child’s birth, and that person is the “responsible parent.”
If the Australian parent is deceased, the person who normally has legal responsibility for the child may apply.
When a parent has acquired Australian citizenship by descent, they can only register their children if the parent has spent a period of time greater than 2 years legally residing in Australia.
An adult may register for citizenship by descent if they were born outside Australia between January 26, 1949, and January 15, 1974, have a natural parent who was an Australian citizen, and the applicant has an acceptable reason for not being registered under Section 10B as a child.
BY NATURALIZATION: Persons who have fulfilled the following requirements may apply for grants of citizenship. (As a matter of policy, a certificate of Australian citizenship will not normally be granted to applicants overseas.)
Obtained permanent resident status and are 18 years of age or older. They are of good character, have a basic knowledge and grasp of the English language, are likely to reside permanently in Australia or, at least, maintain a close and continuing association.
Have spent 2 years out of the past 5 years in Australia with 12 months having been resident there within the last 2 years prior to submitting the application.
Children under the age of 18 years who are adopted from overseas may obtain Australian citizenship by application, provided at least one parent is an Australian citizen.

DUAL CITIZENSHIP: Current legislation does not favor dual or plural citizenship but does recognize it.

LOSS OF CITIZENSHIP:

Australian citizenship can be lost by acquisition of another citizenship, by renunciation, or by deprivation (usually for false declarations and documents).
A child will in most circumstances also lose their Australian citizenship if the “responsible parent” ceases to be an Australian citizen for any of the previously noted reasons.
People who lose their Australian citizenship may in certain circumstances be able to apply to resume it.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of Australia The Australian Consulate-General Immigration Department Century Plaza Towers 1601 Massachusetts Ave., NW 19th Floor Washington, DC 20036-2273 2049 Century Park East

Los Angeles, CA 90067

Embassy/Immigration Telephone: 202-797-3000 Fax: 202-797-3100


www.austemb.org
www.abs.gov.au

CITIZENSHIP: Austrian citizenship is based upon the Citizenship law of 1965 as amended.

BY BIRTH: Child born in the territory of Austria, with at least one parent being a citizen of Austria. However, a child born out of wedlock to a foreign mother and an Austrian father is not considered a citizen. Unless the couple marries, child obtains the citizenship of the mother.
BY DESCENT: Child is born abroad, one of whose parents is an Austrian citizen. In case of a non-Austrian mother and an Austrian father, marriage law listed above applies.
BY NATURALIZATION: Austrian citizenship can be applied for upon fulfillment of one of the following conditions:
Person has lived in Austria for at least 10 years.
Person has taken up a position as a professor at an Austrian University.
Person is the foreign spouse of an Austrian citizen and has resided in Austria for at least five years.

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: Child of Austrian citizens who was born in a foreign country and acquired citizenship
according to the other country’s laws. Also, in exceptional cases, Austrian authorities may permit
an Austrian citizen who obtains a new citizenship to retain their Austrian citizenship.

LOSS OF CITIZENSHIP:

VOLUNTARY: Under certain conditions, Austrian citizenship may be voluntarily renounced:
Person possesses another citizenship.
Person has no criminal proceedings, or criminal penalties of more than six months, pending against them in Austria.
Person, if male, has fulfilled required military service.
INVOLUNTARY: The following are grounds for loss of citizenship:
Person acquires citizenship of a foreign country.
Person performs voluntary military service for a foreign country.
Person has employment with a foreign government that is damaging to Austrian interests.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

The Embassy of Austria Consular Section 3524 International Court, NW Washington, DC 20008-3035

Embassy Telephone: 202-895-6700 Consular Telephone: 202-895-6767/6709/6743 Fax: 202-895-6773

www.austria.org

CITIZENSHIP: A decree of citizenship is being drafted and will be submitted to the Parliament of the Republic of Azerbaijan. The information below represents current law.

BY BIRTH: Birth within the territory of Azerbaijan does not automatically confer citizenship.
BY DESCENT:
Child born in Azerbaijan, at least one of whose parents is a citizen of Azerbaijan.
Child born abroad of an Azerbaijani father is granted Azerbaijani citizenship if the mother does not object.
REGISTRATION: A foreign woman who marries a citizen of Azerbaijan may register for citizenship after renouncing her previous citizenship.
BY NATURALIZATION: No information available.

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: the President of the Republic may grant dual citizenship.
LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of Azerbaijani citizenship is permitted by law. Contact the Embassy for details and required paperwork.
INVOLUNTARY: The following are grounds for involuntary loss of Azerbaijani citizenship:
Person voluntarily acquires foreign citizenship.
Person commits an act that affronts the dignity of the Republic of Azerbaijan.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Republic of Azerbaijan Consular Section 927 15th St., NW STE 700 Washington, DC 20005

Embassy/Consular Telephone: 202-842-0001 Fax: 202-842-0004

www.president.az/azerbaijan.htm

CITIZENSHIP: Citizenship is based upon the Constitution of The Bahamas, dated July 10, 1973. All persons who were citizens of The Bahamas before July 10, 1973, retain their citizenship.

BY BIRTH: Birth within the territory of The Bahamas does not automatically confer citizenship.
BY DESCENT:
Child born legitimately in the territory of The Bahamas, at least one of whose parents is a citizen of The Bahamas.
Child born abroad legitimately, whose father is a citizen of The Bahamas.
REGISTRATION: The following persons are eligible to obtain Bahamian citizenship through registration:
Foreign woman who marries a citizen of the Bahamas.
Person (18 years or older), born in the Bahamas, but whose parents were not citizens of the Bahamas.
Person (18 years or older), born in wedlock outside the Bahamas to a Bahamian mother.
Child adopted by Bahamian citizens.
BY NATURALIZATION: Bahamian citizenship may be acquired upon fulfillment of the following conditions: Person has resided six to nine years in the country (12 months consecutively before applying), intends to reside permanently in the country, is of good character, and knows the language and customs.

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: Dual citizenship obtained due to birth abroad may be retained up to 21 years of age.
Person then has 12 months to renounce foreign citizenship; otherwise their Bahamian citizenship
will be revoked.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of Bahamian citizenship is permitted by Parliament. Contact the Embassy for details and required paperwork.
INVOLUNTARY: Parliament has the right to revoke the citizenship of any naturalized citizen. The following is grounds for involuntary loss of native-born citizenship: Person voluntarily acquires a foreign citizenship.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Commonwealth of The Bahamas bahemb@aol.com Consular Section www.bahamas.net.bs/government 2220 Massachusetts Ave., NW www.bahamas.net Washington, DC 20008

Embassy/Consular Telephone: 202-319-2660 Fax: 202-319-2668 CITIZENSHIP: Citizenship laws are governed by the provisions of the Bahraini Nationality Law of September 16, 1963. For information on persons born before September 16, 1963, contact the Bahraini Embassy.

BY BIRTH:
Child born in territory of Bahrain after September 16, 1963, whose father is a citizen of Bahrain (born and domiciled), provided the child does not have another nationality.
Child born in territory of Bahrain after September 16, 1963, of unknown parents.
BY DESCENT: Child born after September 16, 1963, whose father or grandfather was a Bahraini citizen by birth.
BY NATURALIZATION: Bahraini citizenship may be acquired upon fulfillment of the following conditions:
Person has lived continuously in Bahrain since September 16, 1963, for at least 25 years. (15 years for person of Arab descent)
Person must be of good character, have a good command of Arabic, and have an estate registered in his or her name in Bahrain.
Person must have acquired permission from the ruler of Bahrain.

DUAL CITIZENSHIP: NOT RECOGNIZED.

LOSS OF CITIZENSHIP: The ruler of Bahrain must approve loss of citizenship, either voluntary or involuntary. Citizenship lost through involuntary means extends to the person’s minor children.

VOLUNTARY: Bahraini law permits voluntary renunciation of citizenship. Contact Bahraini Embassy for details and proper paperwork.
INVOLUNTARY: The following is grounds for involuntary loss of Bahraini citizenship: Person has voluntarily acquired foreign citizenship.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

The Embassy of the State of Bahrain Consular Section 3502 International Dr., NW Washington, DC 20008

Embassy/Consular Telephone: 202-342-0741/42 Fax: 202-362-2192 CITIZENSHIP: Citizenship laws are based upon the Bangladesh Citizenship Order dated 1972. Questions concerning persons born before March 26, 1971, should be directed to the Bangladesh Embassy. (UKC-Commonwealth Nation)

BY BIRTH: Birth within the territory of Bangladesh does not automatically confer citizenship. Only persons born before March 26, 1971 would be deemed Bangladesh citizens by birth.
BY DESCENT: Rules stated below apply to persons born after March 26, 1971.
Child born of a Bangladesh father, regardless of the child’s country of birth.
Child whose grandfather was a citizen of Bangladesh, regardless of the child’s country of birth.
Child born of a Bangladesh mother and an unknown or stateless father, regardless of the child’s country of birth.
OTHER: Person who was a permanent resident of Bangladesh on March 26, 1971, is granted citizenship, unless disqualified by law at that time.
BY NATURALIZATION:
A person may apply for citizenship upon investment of $5 million or its equivalent in an industrial or commercial project of Bangladesh or if the person transfers $1 million to any of the recognized financial institutions of Bangladesh (the funds may not be withdrawn).
Application for Permanent Residence may be made upon investment of $75,000 (may not be withdrawn).

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: The government of Bangladesh reserves the right to recognize dual citizenship in
certain cases. If questions arise, contact the Embassy.

LOSS OF CITIZENSHIP:

VOLUNTARY: Law permits voluntary renunciation of Bangladesh citizenship. Contact the Embassy for details and appropriate paperwork.
INVOLUNTARY: The following are grounds for involuntary loss of Bangladesh citizenship:
Person voluntarily acquires a foreign citizenship.
Naturalized citizen by investment in Bangladesh removes the investment from the country.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the People’s Republic of Bangladesh Consular Section 2201 Wisconsin Ave., NW Washington, DC 20007

Embassy/Consular Telephone: 202-342-8393 Fax: 202-333-4971 CITIZENSHIP: Citizenship laws are based upon the Barbadian Constitution. (UKC-Commonwealth Nation)

BY BIRTH: Child born in the territory of Barbados, regardless of the nationality of the parents.
BY DESCENT:
Child born abroad, in wedlock, whose father is a citizen of Barbados. Child must be registered with the nearest Barbadian diplomatic representative.
Child born abroad, out of wedlock, whose mother is a citizen of Barbados. Child must be registered with the nearest Barbadian diplomatic representative.
REGISTRATION: Foreign woman, who has married a citizen of Barbados, may apply for citizenship through registration.
BY NATURALIZATION: Person may acquire Barbadian citizenship by having a longstanding residence of at least five years.

DUAL CITIZENSHIP: RECOGNIZED.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of citizenship is permitted under law. Letters of renunciation must be sent to:

Barbados Immigration Office The Wharf Bridgetown, Barbados,WI

Person should request form REN 1, fill out the form, and return it to the Immigration Office along with their Barbadian passport. Person will receive form REN 2, a certificate of renunciation of Barbadian citizenship.

INVOLUNTARY: Barbadian citizenship may be involuntarily removed by law. No information is available on these laws.

ANY QUESTIONS concerning citizenship should be directed to the address below:

The Embassy of Barbados Consular Section 2144 Wyoming Ave., NW Washington, DC 20008

Embassy/Consular Telephone: 202-939-9200/01/02 Fax: 202-332-7467 CITIZENSHIP: Citizenship law is based upon The Law of the Republic of Belarus, Laws of Citizenship, dated October 18, 1991. Persons who were permanent residents of Belarus during the adoption of the law remain citizens of Belarus.

BY BIRTH: Birth within the territory of Belarus does not automatically confer citizenship. The exception is a child born in the territory of Belarus to stateless or unknown parents.
BY DESCENT:
Child, both of whose parents are citizens of Belarus, regardless of the country of birth.
Child, one of whose parents is a citizen of Belarus and who (the parent) was born within the territory of Belarus.
Child, born abroad, at least one of whose parents was permanently residing in Belarus at the time of the child’s birth.
Child, born abroad, one of whose parents is a citizen of Belarus and whose family is living permanently abroad, gains citizenship only upon the written request of the parents.
BY NATURALIZATION: Belarusian citizenship may be applied for upon fulfillment of the following conditions: Person is capable of speaking the language, has resided in the territory for the last seven years, has a legitimate source of income, does not have citizenship of any other state, and assumes the obligation to follow the Constitution and laws of Belarus.

DUAL CITIZENSHIP: NOT RECOGNIZED.

LOSS OF CITIZENSHIP:

VOLUNTARY: Permitted under Belarussian law, provided the person is not involved in any criminal proceedings and has no outstanding debts or obligations to Belarus. Contact nearest Belarussian Embassy for information on renouncing citizenship.
INVOLUNTARY: The following are grounds for involuntary loss of Belarussian citizenship:
Person voluntarily acquires a foreign citizenship
Person enlists in the service (military, government, etc.) of another country.
Citizenship was acquired under false statements.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Republic of Belarus Consular Section 1619 New Hampshire Ave., NW Washington, DC 20009

Embassy Telephone: 202-986-1604 Consular Telephone: 202-986-1606 Fax: 202-986-1805 CITIZENSHIP: Belgian citizenship is based upon the Code of Belgian Nationality, dated June 28, 1984, and amended January 1, 1992.

BY BIRTH: Birth within the territory of Belgium does not automatically confer citizenship.
BY DESCENT:
Child born in Belgium, at least one of whose parents is a citizen of Belgium. This same rule applies for an adopted child.
Child born abroad, at least one of whose parents was a native-born citizen of Belgium. Parents have up to five years to register child.
CHILDREN OF IMMIGRANTS: Citizenship may be granted when:
Child is born in Belgium to non-citizens who were also born in Belgium.
Child is born to non-citizens who have lived in Belgium at least 10 years before the birth of the child and who have filed a citizenship claim for the child.
Child born in Belgium, who has resided there continuously since birth, may make a declaration of Belgian nationality between the ages of 18 and 30.
BY NATURALIZATION: Belgian citizenship may be acquired upon fulfillment of the following conditions: Person is at least 18 years of age and has resided in country for at least 5 years.

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: Belgian children born abroad, who received the citizenship of country of birth, may
hold dual citizenship until age 18.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of citizenship can only be made if the person holds another citizenship or acquires it at the time of the declaration. Renunciations may be sent to the nearest Belgian Embassy.
INVOLUNTARY: The following are grounds for involuntary loss of Belgian citizenship:
Person voluntarily acquires foreign citizenship.
Person, born abroad and not in the service of Belgium, who lives abroad from age 18 to 28, without making a declaration of citizenship.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to address below:

Embassy of Belgium
washington@diplobel.org
Consular Section
www.diplobel.org/usa/
3330 Garfield St., NW www.belguim.fgov.be Washington, DC 20008

Embassy/Consular Telephone: 202-333-6900 Fax: 202-333-3079 CITIZENSHIP: Citizenship is based upon the Belize Nationality Act, Chapter 127A of the Laws of Belize, R.E. 1980-1990. The following persons were granted citizenship at the date of independence (September 21, 1981):

Person born in Belize, who was a citizen of the United Kingdom and Colonies (UKC).
Citizen of the UKC, naturalized in Belize as a British Subject before September 21, 1981.
Citizen of the UKC, born abroad, whose parents or grandparents were granted Belizean citizenship.
Wife of citizen of the UKC who was granted Belizean citizenship.
BY BIRTH: Birth within the territory of Belize, on or after September 21, 1981, regardless of the nationality of the parents. The exception is a child born to certain diplomatic personnel.
BY DESCENT: Child born abroad, on or after September 21, 1981, at least one of whose parents is a citizen of Belize.
MARRIAGE: Foreign national, who marries a citizen of Belize, is eligible to register for citizenship.
BY NATURALIZATION: Belizean citizenship may be acquired upon fulfillment of the following conditions:
Person has resided in the country for at least five years and has renounced previous citizenship.
Person applies for economic citizenship by registration.

DUAL CITIZENSHIP: RECOGNIZED. Exceptions: Dual citizenship is prohibited for:

Belizean citizen by descent who has renounced such citizenship. However, such person may apply to resume Belizean citizenship but must renounce citizenship of any other country and demonstrate intent to continue to be an ordinarily resident in Belize.
Belizean citizen, either by descent or registration, who has pledged allegiance to, or is a citizen of, a country which does not recognize the independence, sovereignty, or territorial integrity of Belize.

LOSS OF CITIZENSHIP: A person who acquired Belizean citizenship either by descent or registration and who makes an invalid or ineffective renunciation of foreign citizenship shall be deemed never to have acquired the status of citizen of Belize.

VOLUNTARY: Voluntary renunciation of Belizean citizenship is permitted by law. Contact the Embassy for details and required paperwork.
INVOLUNTARY: The following shall be grounds for involuntary loss of Belizean citizenship by a person who acquired such citizenship by registration:

Such Belizean citizen residing outside of Belize for five consecutive years or more.

The following may be grounds for involuntary loss of Belizean citizenship for a person who

acquired Belizean citizenship by registration if such person:

Has been convicted of an offence under the Belizean Nationality Act; or
Has been convicted of any offence under Title XIV of the Criminal Code; or
Was registered as a citizen of Belize by means of fraud, false representation, or the concealment of material circumstances, or by mistake; or
Has, within five years after the date of registration as a citizen of Belize, been sentenced in any court to imprisonment for a term of twelve months or more; or
Has, since the date of his becoming a citizen of Belize by registration, been for a period of not less than two years ordinarily resident in a foreign country of which he was a national or citizen at any other time prior to that date, and has not maintained a substantial connection with Belize; or
Has taken an oath or affirmation of, or made a declaration of, allegiance to a foreign country; or
Has so conducted themself that their continuance as a citizen of Belize is detrimental to the interest of Belize.

ANY QUESTIONS concerning citizenship and requests for renunciation of citizenship, should be directed to the address below:

Embassy of Belize Consular Section 2535 Massachusetts Ave., NW Washington, DC 20008

Embassy/Consular Telephone: 202-332-9636 Fax: 202-332-6888

www.belizenet.com

CITIZENSHIP: Citizenship is based upon the Law of Civil Rights.

BY BIRTH: Birth within the territory of Benin does not automatically confer citizenship. The exception is a child born to stateless or unknown parents.
BY DESCENT: Child of a Beninese mother or father, regardless of the country of birth.
BY NATURALIZATION: Beninese citizenship may be acquired upon fulfillment of the following conditions: Person must have obtained the right to permanently reside in the country, and then have resided there for at least 10 years.

DUAL CITIZENSHIP: RECOGNIZED.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of Beninese citizenship is permitted by law. Person must be at least 21 years old. Contact the Embassy for details and required paperwork.
INVOLUNTARY: The following are grounds for involuntary loss of naturalized Beninese citizenship:
Naturalized citizenship was obtained through fraud or false statement.
If naturalized citizen is convicted and jailed for a serious offense (and if the person will be deported after sentence is served).

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of the Republic of Benin Consular Section 2737 Cathedral Ave., NW Washington, DC 20008

Embassy/Consular Telephone: 202-232-6656 Fax: 202-265-1996 CITIZENSHIP: Citizenship is based upon the Nationality Law of Bhutan, dated 1958, and the Bhutan Citizenship Act, dated 1977 and 1985.

BY BIRTH: Birth within the territory of Bhutan does not automatically confer citizenship.
BY DESCENT:
Person born before June 10, 1985: Child of a Bhutanese father who was resident in Bhutan at the time, regardless of the country of birth.
Person born on or after June 10, 1985: Child of both a Bhutanese mother and father, regardless of the country of birth.
REGISTRATION: On June 10, 1985, citizenship by registration was granted to persons who had legally resided in Bhutan since before December 31, 1958.
MARRIAGE: When a Bhutanese woman marries a foreign man, husband and children must apply for citizenship through naturalization. When a Bhutanese man marries a foreign woman, the wife must apply for citizenship, while the children are granted Bhutanese citizenship by descent.
BY NATURALIZATION: Bhutanese citizenship may be acquired upon fulfillment of the conditions listed below and upon obtaining permission of government:
Naturalized before June 10, 1985: Person had reached age 21, had resided in country for at least 10 years, owned agricultural land, and had the petition for naturalization accepted by government authority.
Naturalized after June 10, 1985: Person is 21 years old, has resided in country for 15 years if one or more parents is a citizen, (20 years for child of non-citizen), and knows the language and customs.

DUAL CITIZENSHIP: NOT RECOGNIZED.

LOSS OF CITIZENSHIP:

VOLUNTARY: Voluntary renunciation of citizenship is permitted by law, but subject to final approval by the government. Contact the Mission for details and required paperwork.
INVOLUNTARY: The following are grounds for involuntary loss of Bhutanese citizenship:
Person voluntarily acquires a foreign citizenship, has left the country, and is residing abroad or is working for a foreign state.
Naturalized citizenship was obtained through fraud or falsehoods.
Naturalized citizen is imprisoned within first 5 years in country.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Permanent Mission to the UN Kingdom of Bhutan Two United Nations Plaza, 27th floor New York, NY 10017

Mission Telephone: 212-826-1919 www.bhutan.org Fax: 212-826-2998

CITIZENSHIP: Information about the basis for Bolivian citizenship laws was not provided.

BY BIRTH: Children born within the territory of Bolivia, regardless of the nationality of the parents. The only exception to this rule is children born to parents in the service of other governments.
BY DESCENT: Child born abroad to either a Bolivian mother or father is granted citizenship either by returning to live in Bolivia, or by being registered at a consulate.
BY NATURALIZATION: Bolivian citizenship may be acquired upon fulfillment of various conditions:
Persons with no ties to Bolivia may obtain citizenship after residing in the country for at least two years.
Foreign woman, married to a Bolivian citizen, acquires her husband’s citizenship as long as she lives in the country and expresses her agreement. This nationality is not lost even through widowhood or divorce.
Persons who have Bolivian spouses or had children born in Bolivia need only to reside in country for one year.

DUAL CITIZENSHIP: NOT RECOGNIZED. Exceptions:

Bolivian woman, married to a foreigner, is not required to relinquish her Bolivian citizenship even if she acquires her husband’s citizenship through their marriage.
Former citizens of Spain and other Latin American countries, who become naturalized Bolivians, are not required to relinquish their previous citizenship as long as Bolivia has a reciprocal agreement with their former countries. NO AGREEMENT WITH UNITED STATES.

LOSS OF CITIZENSHIP:

VOLUNTARY: Letters of voluntary renunciation of Bolivian citizenship may be sent to the nearest Bolivian embassy.
INVOLUNTARY: The following are grounds for involuntary loss of Bolivian citizenship:
Person aids the enemy of Bolivia during time of war.
Person accepts a foreign government job without Senate approval.
Person acquires the citizenship of a foreign country that does not have a reciprocal dual citizenship agreement with Bolivia.

ANY QUESTIONS concerning citizenship, or requests for renunciation of citizenship, should be directed to the address below:

Embassy of Boliv

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Immigration Consequences of Massachusetts Criminal Convictions

Posted on September 3, 2012 by Mike Baker

IMMIGRATION CONSEQUENCES OF MASSACHUSETTS CRIMINAL CONVICTIONS1

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1 Prepared by the Committee for Public Counsel Services Immigration Impact Unit (IIU). The IIU provides training, litigation support and advice on individual cases regarding the immigration consequences of criminal conduct to all court-appointed attorneys in Massachusetts. This discussion is based on an article originally written by Daniel Kanstroom, Professor of Law and Associate Director of the Boston College Center for Human Rights and International Justice. Appendix 3: Immigration Consequences of Selected Massachusetts Offenses Reference Chart was originally written in 2006 with Dan Kesselbrenner, Executive Director of the National Immigration Project of the National Lawyers Guild. We thank both of these individuals for their continued input, drafting and support on this project. © August 2012.

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.

2 Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

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

4 It is possible, however, that a client who was born in the U.S. has lost citizenship through voluntary expatriation. See 8 U.S.C. § 1481(a); see also Vance v. Terrazas, 444 U.S. 252 (1980) (finding that intent to relinquish citizenship must be proven by preponderance of the evidence).

5 The current rules are set forth in 8 U.S.C. §§ 1401, 1408, and 1409. Some immigration treatises include charts setting forth the statutory requirements according to birthdate. See, e.g., Ira J. Kurzban, Kurzban’s Immigration Law  Sourcebook (13th ed. 2012).

6 See 8 U.S.C. § 1421 et seq.

7 See 8 U.S.C. § 1427. The statute requires only three years of permanent residence if the applicant is married to a U.S. citizen, under certain circumstances. See 8 U.S.C. § 1430; 8 C.F.R. § 319.1(a). Note also that there are a wide variety of exceptions to these rules. For example, a person who served honorably in the U.S. military may apply for naturalization without becoming a permanent resident. See 8 U.S.C. § 1440(a).

8 See 8 U.S.C. § 1431, which codifies the Child Citizenship Act of 2000. The Act came into effect on February 27, 2001, and persons 18 or over on that date are subject to prior versions of the law. See also 8 U.S.C. § 1433 (setting forth procedure for naturalization of children on application of U.S. citizen parent).

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.

9 8 U.S.C. § 1427(a).

10 It is also possible for a person to be a permanent resident and not to have a green card. Sometimes these cards take a long time to process. In the interim, most permanent residents will have a stamp in their passports as evidence of their status. The card is evidence of status, not a precondition of status, so a person remains a permanent resident even after the card expires.

11 Conditional residence expires after two years, unless it is extended. See 8 U.S.C. § 1186a. This status is most typically conferred on spouses of U.S. Citizens in situations in which the marriage was less than two years old at the time of approval of the residence. Conditional residents can petition to remove the conditions on their residence after two years. See 8 U.S.C. § 1186a(c).

12 See 8 U.S.C. §§ 1101(a)(13)(C), 1182. An exception to this rule was the so-called Fleuti doctrine which provided that an “innocent, casual, and brief” departure which is not “meaningfully interruptive” of permanent resident status will not subject a permanent resident to the entry doctrine upon return to the United States. Rosenberg v. Fleuti, 374 U.S. 449, 462-63 (1963). The U.S. Supreme Court has upheld the Fleuti doctrine for lawful permanent residents convicted of offenses prior to the 1996 changes in the immigration laws. Vartelas v. Holder, 132 S.Ct. 1479 (2012).

13 See Appendix 2.

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.)

14 8 U.S.C. § 1101(a)(15).

15 Id.

16 In some categories, such as the H-1B category for professional workers (“specialty occupations”) the concept of “dual intent” is recognized. “Dual intent” means that the noncitizen can still be recognized and treated as a nonimmigrant without being penalized even though the noncitizen may also have the intention to remain in the United States and become an immigrant.

17 Note that “conviction” is an immigration term of art. See 8 U.S.C. § 1101(a)(48)(A).

18 8 C.F.R. § 214.1(g).

19 See 8 U.S.C. § 1158(b)(2)(A)(ii) & (b)(2)(B).

20 See 8 U.S.C. § 1231(b)(3)(B)(ii).

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

21 8 U.S.C. § 1158(b)(2)(B)(i).

22 An aggravated felony (or felonies) for which a noncitizen has been sentenced to an aggregate term of at least five years is automatically considered to be a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B). With respect to aggravated felony convictions for which a lesser sentence has been imposed, Congress explicitly empowered the Attorney General to determine what constitutes a “particularly serious crime.” Id. In the absence of a decision by the Attorney General, the BIA has made this determination on a case by case basis. In Matter of Y-L-, A-G- & R-S-R-, the Attorney General spoke for the first time on the issue of what constitutes a “particularly serious crime.” 23 I. & N. Dec. 270 (A.G. 2002) (holding that aggravated felonies involving unlawful trafficking in controlled substances constitute “particularly serious crimes” and only the most extenuating circumstances that are both extraordinary and compelling would permit departure from this interpretation). Another important BIA decision on “particularly serious crimes” is Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA 2007) (holding that an offense need not be an aggravated felony to be a particularly serious crime, and that the court may examine any reliable evidence to determine whether a crime is particularly serious).

23 An applicant is ineligible for TPS if he has been convicted of one felony, 8 U.S.C. §1254a(c)(2)(B)(i); one misdemeanor, as defined under Massachusetts law, if the sentence actually imposed is more than one year of incarceration, either suspended or committed, 8 C.F.R. §244.1; two misdemeanors, if the sentences actually imposed are one year or less, 8 U.S.C. §1254a(c)(2)(B)(i); or a “particularly serious crime” that makes him a danger to the community, 8 U.S.C. §§ 1254a(c)(2)(B)(ii); 208(b)(2)(A)(ii). For a discussion of the types of offenses that constitute particularly serious crimes, please refer to Matter of N-A-M-, 24 I.&N. Dec. 336 (BIA 2007); Matters of Y-L-, A-G, and R-S-R-, 23 I.&N. Dec. 270 (A.G. 2002).

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

24 They usually have the right to a removal hearing, though certain classes of immigrants are subject to expedited removal without an Immigration Court hearing. See 8 U.S.C. § 1225(b)(1).

25 These include relief formerly known as “INA § 212(c) relief” and Suspension of Deportation, now both subsumed and substantially restricted under 8 U.S.C. § 1229b (setting forth the requirements for “Cancellation of Removal”).

26 8 U.S.C. §1182(a)(9).

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

27 Any adjustment of status is treated as if it were an “admission.” Thus, a noncitizen cannot adjust status if convicted of a crime that would render her inadmissible, unless a waiver is available.

28 See Matter of Alyazji, 25 I & N Dec. 397 (2011).

29 8 U.S.C. § 1101(f).

30 The relevant period for which the petitioner must be found to have good moral character is generally five years for naturalization, five years for voluntary departure, and either seven or ten years for cancellation of removal depending upon the client’s legal status, period of residence in the U.S., basis of removal and other factors.

31 Note that 8 U.S.C. § 1182(a) does not require a conviction. An “admission” may be enough.

32 See, e.g., Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967).

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

33 See INS Interpretations § 316.1(e)-(g), available at  http://www.uscis.gov/ilink/docView/SLB/HTM /SLB/0-0-0- 1/0-0-0-45077/0-0-0-46756.html

34 Matter of Sanchez-Linn, 20 I. & N. Dec. 362 (BIA 1991).

35 Prior to enactment of 8 U.S.C. § 1101(a)(48)(A) in 1996, this question was controlled by Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988). Under Matter of Ozkok, a conviction existed if:

(1) There has been a formal adjudication of guilt or entry of a judgment of guilt or;
(2) An adjudication of guilt has been withheld, but
(a) There has been a finding of guilt by a judge or jury, or an entry of a plea of guilty or nolo contendere, or an admission to sufficient facts;
(b) The judge has ordered some form of punishment, penalty, or restraint on the person’s liberty, and
(c) A judgment or adjudication of guilt may be entered if the person violates the terms of probation or fails to comply with the requirements of the court’s order, without further proceedings regarding the person’s guilt or innocence of the original charge.

See Matter of Ozkok, 19 I. & N. Dec. at 551-52.

36 See Molina v. INS, 981 F.2d 14, 16, 18 (1st Cir. 1992) (finding that a “‘nolo plea plus probation’” under Rhode Island law amounts to a “‘conviction’”).

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

37 See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999); Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005); cf. Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001).

38 Similarly, a disposition under G.L. c. 276A (pretrial diversion), G.L. c. 111E (drug treatment), G.L. c. 276, §55 (accord and satisfaction) or G.L. c. 277, §70C (conversion from criminal to civil offense) would not be considered a conviction, because there is no admission or finding of guilt.

39 Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001). However, a guilty-filed disposition with any penalty, such as a fine or a consideration of past time served, would be considered a conviction for immigration purposes.

40 In Matter of Polanco, 20 I. & N. Dec. 894, 896 (BIA 1994), the BIA held that “an alien who has either waived or exhausted his right to a direct appeal of his conviction is subject to deportation, and that the potential for discretionary review on direct appeal will not prevent the conviction from being considered final for immigration purposes.” See also Matter of Thomas, 21 I. & N. Dec. 20, 21 n.1, 23 (BIA 1993) (observing that a non-final conviction can neither support a charge of deportability nor trigger a statutory bar to relief under a section of the INA premised on the existence of a conviction, but even a non-final conviction may be considered relevant to certain forms of discretionary relief); but see Moosa v. INS, 171 F.3d 994, 1009 (5th Cir. 1999) (holding that the new statutory definition of conviction eliminated the requirement of finality).

41 But see, Matter of Abreu, 24 I. & N. Dec. 795 (BIA 2009) (pending late-reinstated appeal does not undo finality of conviction). Note also that collateral attacks on a conviction – such as motions for new trial – do not have the same effect. See Matter of Onyido, 22 I. & N. Dec. 552, 555 (BIA 1999).

42 Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001); see also Matter of Sejas, 24 I. & N. Dec. 236, 237 (BIA 2007).

43 Matter of Silva-Trevino, 24 I&N Dec. 687, 689, n.1 (BIA 2008).

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

44 U.S. ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931). See also Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999); Montero-Ubri v. INS, 229 F.3d 319, 321 (1st Cir. 2000).

45 The record of conviction includes documents such as the complaint or indictment, plea colloquy and transcript, a signed plea agreement, docket sheet, jury instructions, and the judgment and sentence.

46 Silva-Trevino, 24 I&N Dec. at 704. But see Matter of Ahortalejo, 25 I&N Dec. 465 (BIA 2011) (holding that if the record of conviction “conclusively demonstrates” the nature of the offense, a judge may not look at additional evidence).

47 Silva-Trevino, 24 I&N Dec. at 689, n.1. In this case, the Attorney General held that reprehensible conduct with scienter forms a crime involving moral turpitude. He did not discuss which offenses would rise to the level of “reprehensible conduct,” and the BIA has not shed much light on the meaning of this phrase since Silva-Trevino was published.

48 See Appendix 3, Immigration Consequences of Certain Massachusetts Offenses.

49 See, e.g., Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 1976) (finding that an Illinois aggravated assault offense was a crime involving moral turpitude); Matter of Sanchez-Marin, 11 I. & N. Dec. 264, 266, 267 (BIA 1965) (finding that Massachusetts convictions for voluntary manslaughter and accessory after the fact to manslaughter were crimes involving moral turpitude).

50 See Cabral v. INS, 15 F.3d 193, 197 (1st Cir. 1994).

51 In examining a Missouri statute, the BIA held that involuntary manslaughter is a crime of moral turpitude if the statute includes criminally reckless behavior as an element. See Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994), cited in Matter of Solon, 24 I. & N. Dec. 239, 240 (BIA 2007); compare G.L. c. 265, § 13 and Commonwealth v. Atencio, 345 Mass. 627, 629 (1963).

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

52 Matter of Sejas, 24 I. & N. Dec. 236, 241 (BIA 2007) (observing that simple assault is generally not considered a crime involving moral turpitude); Matter of Short, 20 I. & N. Dec. 136, 137-38, 139 (BIA 1989) (holding that assault with intent to commit a felony is turpitudinous only if underlying felony is a crime of moral turpitude).

53 See, e.g., Matter of D-, 20 I. & N. Dec. 827, 830 (BIA 1994) (assault with a dangerous weapon), Maghsoudi v. INS, 181 F.3d 8, 15 (1st Cir. 1999) (indecent assault and battery).

54 See Ciambelli ex. rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass. 1926); see also Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. 2008) (overturning BIA ruling that an Illinois battery of a peace officer was a crime of moral turpitude); Matter of Danesh, 19 I. & N. Dec. 669 (analyzing BIA cases addressing assaults on public officers).

55 See Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (2007); 8 U.S.C. § 1227(a)(2)(A)(v).

56 See Matter of Moore, 13 I. & N. Dec. 711, 712 (BIA 1971); Matter of W-, 4 I. & N. Dec. 241, 247 (BIA 1951); Matter of G-, 1 I. & N. Dec. 403, 406 (BIA 1943).

57 Jordan v. DeGeorge, 341 U.S. 223 (1951) (holding that any offense that has fraud as an element is a crime involving moral turpitude).

58 Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992) (stating that firearms possession is not a ground of inadmissibility); 8 U.S.C. § 1227(a)(2)(C) (listing firearms possession as a ground of deportability).

59 See Silva-Trevino, 24 I&N Dec. at 689, n.1 (requiring a scienter of specific intent, deliberateness, willfulness or recklessness for the crime to involve moral turpitude).

60 See Matter of Torres-Varela, 23 I. & N. Dec. 78, 86 (BIA 2001). But see Matter of Lopez-Meza, 22 I. & N. Dec. 1188, 1195-96 (BIA 1999) (involving Arizona offense for aggravated driving under the influence in which the aggravating factor is that the driver’s license had been suspended due to a prior DUI. Offense found to be a CIMT because of the driver’s knowledge that he was prohibited from driving).

• 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

61 A conviction or an admission to the commission of a crime of moral turpitude is a ground of inadmissibility, while the deportability grounds are triggered only by a conviction. Compare 8 U.S.C. § 1182(a)(2)(A)(i) with 8 U.S.C. § 1227(a)(2)(A)(i) & (ii).

62 IIRIRA, Division C of Pub. L. No. 104-208, 110 Stat. 3009; the Anti-terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (“AEDPA”); and the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4311 (“INTAC”) substantially broadened the definition of an aggravated felony. The current statutory definition is at 8 U.S.C. § 1101(a)(43).

63 8 U.S.C. § 1227(a)(2)(A)(iii).

64 The definition of an aggravated felony, found at 8 U.S.C. § 1101(a)(43), includes twenty-one broad subcategories.. See Matter of Small, 23 I. & N. Dec. 448, 450 (BIA 2002).

65 See Matter of Lettman, 22 I. & N. Dec. 365, 378 (BIA 1998), aff’d, 207 F.3d 1368 (11th Cir. Mar. 31, 2000) (finding that a noncitizen convicted of an aggravated felony is deportable regardless of the date of conviction), Matter of Truong, 22 I&N Dec. 1090, 1094-96 (BIA 1999) (holding that the aggravated felony definition is retroactive).

66 A “sentence” under federal immigration law includes any period of incarceration that is imposed or suspended. See 8 U.S.C. § 1101(a)(48)(B).

67 See Matter of Ramos, 23 I. & N. Dec. 336, 347 (BIA 2002). However, pending legislation is attempting to make a third offense of OUI an aggravated felony as a subcategory of crimes of violence. Violence Against Women Reauthorization Act of 2011, S. 1925, § 1008 (as modified by Amendment MDM 12037 (Grassley)).

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.

68 Simple assault and battery is not categorically a crime of violence. See Johnson v. U.S., 130 S.Ct. 1265 (2010) (holding that an assault and battery statute that criminalized an unwanted touching was not categorically a “violent felony” under the Armed Career Criminal Act, which contains language functionally identical to 18 U.S.C. §16(a)). The BIA similarly found that a domestic assault and battery statute that criminalizes de minimis physical contact is not categorically a crime of violence under 18 U.S.C. §16(a). Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010). In Massachusetts, the First Circuit applied the Johnson reasoning to simple assault and battery, finding that it was not categorically a violent felony. U.S. v. Holloway, 630 F.3d 252 (1st Cir. 2011). But the First Circuit also held that assault and battery on a police officer was a violent felony, U.S. v. Dancy, 640 F.3d 455 (1st Cir. 2011), and that the Rhode Island simple assault statute constituted a crime of violence. Lopes v. Keisler, 505 F.3d 58, 62 (1st Cir. 2007). Notwithstanding this analysis, it is possible that assault and battery in Massachusetts could be considered a felony under federal law, in which case the more expansive 18 U.S.C. §16(b) would apply and this offense is more likely to be considered a crime of violence. The First Circuit has not yet ruled on whether assault or assault and battery in violation of G.L. c.265, §13A is a crime of violence under 18 U.S.C. §16(b), though the Second Circuit has held that assault and battery on a public official in violation of G.L. c. 265, §13D is a crime of violence under 18 U.S.C. §16(b). See Blake v. Gonzales, 481 F.3d 152, 162-63 (2d Cir. 2007).

69 See Matter of Vargas, 23 I&N Dec. 651, 651 (BIA 2004); Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999).

70 See 8 U.S.C. §§ 1227(a)(2)(B) (controlled substance ground); 1101(a)(43)(B) (aggravated felony definition).

71 See Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992). However, the BIA has held that possession with intent to distribute a small amount of marijuana for no remuneration is not an aggravated felony. Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012). See also Commonwealth v. Keefner, 461 Mass. 507 (2012) (upholding the viability of the Massachusetts offense of possession with intent to distribute one ounce or less of marijuana in light of the decriminalization of simple possession of one ounce or less of marijuana).

72 See Lopez v. Gonzales, 549 U.S. 47 (2006).

73 Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010).

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

74 See Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006).

75 The subject of mandatory detention is beyond the scope of this work. However, there are exceptions to the general rule of which the practitioner should be aware. In particular, most respondents (other than those who have traveled abroad and are charged with inadmissibility on criminal grounds) who were released from criminal custody prior to October 9, 1998 are not subject to mandatory detention. See, e.g., Matter of Rojas, 23 I. & N. Dec. 117, 120 (BIA 2001), Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009). The Supreme Court upheld the constitutionality of mandatory detention under 8 U.S.C. § 1226(c) in Demore v. Kim, 538 U.S. 510 (2003).

76 See 8 U.S.C. § 1182 (a)(9)(A)(ii).

77 See, e.g., Nguyen v. INS, 991 F.2d 621, 623-25 (10th Cir. 1993).

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

78 See Balogun v. INS, 31 F.3d 8, 9 (1st Cir. 1994); Pacheco v. INS, 546 F.2d 448, 451 (1st Cir. 1976).

79 Matter of Islam, 25 I&N Dec. 637 (BIA 2011); Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992).

80 See, e.g., Matter of Beltran, 20 I. & N. Dec. 521, 527 (BIA 1992) (solicitation); Matter of Del Risco, 20 I. & N. Dec. 109, 110 (BIA 1989) (facilitation); 8 U.S.C. § 1227(a)(2)(B)(i) (attempt and conspiracy).

81 See Matter of Batista, 21 I. & N. Dec. 955, 960 (BIA 1997).

82 See Matter of Roldan, 22 I. & N. Dec. 512, 528 (BIA 1999).

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

83 For cases interpreting this deportation ground, see Matter of Chow, 20 I. & N. Dec. 647 (BIA 1993), aff’d, 12 F.3d 34 (5th Cir. 1993); Matter of K-L-, 20 I. & N. Dec. 654 (BIA 1993); Matter of P-F-, 20 I. & N. Dec. 661 (BIA 1993).

84 See, e.g., Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012) (holding that the New York offense of menacing is a firearm offense where an element of the offense involves use of a firearm); Matter of Lopez-Amaro, 20 I. & N. Dec. 668, 672-73 (BIA 1993) (finding that enhancement provision for firearm possession in murder statute is possession conviction for deportation purposes), aff’d, 25 F.3d 986, 990 (11th Cir. 1994); Matter of Perez-Contreras, 20 I. & N. Dec. 615, 617 (BIA 1992) (finding that an assault conviction was not a firearms offense where use of the firearm was not an element of the offense). .

85 See Dulal-Whiteway v. DHS, 501 F.3d 116, 123 (2d Cir. 2007).

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

86 Matter of Velasquez, 25 I. & N. Dec. 278, fn 1(BIA 2010).

87 Id.; see also Bianco v. Holder, 624 F.3d 265 (5th Cir. 2010) (holding that the language in 8 U.S.C. 1227(a)(2)(E)(i) describes the circumstances in which a crime of violence is committed and should not be considered elements of the offense so that the government may prove the identity of the victim by using the kind of evidence generally admissible before an immigration judge.)

88 Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (2008).

89 Id. at 512.

90 Id. See also Matter of Soram, 25 I&N Dec. 378 (BIA 2010) (holding that an offense involving reckless endangerment to a child constitutes child abuse).

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

91 See Gordon, Mailman & Yale-Loehr, 5-63 Immigration Law and Procedure § 63.03 (Matthew Bender 2012).

92 See 8 U.S.C. § 1182(a)(2)(A)(ii)(I).

93 See 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Note that a Massachusetts suspended sentence is considered a term of imprisonment under the INA. See 8 U.S.C. § 1101(a)(48)(B).

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

94 22 C.F.R. § 40.24 (“A finding that an alien has ‘engaged’ in prostitution must be based on elements of continuity and regularity, indicating a pattern of behavior or deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts”). See also Matter of T-, 6 I&N Dec. 474 (BIA 1955); Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008).

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

95 See Matter of C-M-, 5 I. & N. Dec. 327 (BIA 1953); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (1981).

96 See 8 U.S.C. § 1182(a)(2)(C) (controlled substance traffickers) & (D) (prostitution); 8 U.S.C. § 1227(a)(2)(B)(ii) (drug abuse).

97 See 8 U.S.C. § 1227(a)(2)(E)(ii).

98 See Viera Garcia v. INS, 239 F.3d 409 (1st Cir. 2001) (holding that 17 year old charged and convicted in Rhode Island as an adult was not entitled to have his offense treated as one of juvenile delinquency for purposes of INS proceedings).

99 Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000) (reasoning by analogy to the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (1994 & Supp. II 1996)).

100 Uritsky v. Gonzales, 399 F.3d 728 (7th Cir. 2005).

101 See Magasouba v. Mukasey, 543 F.3d 13, 16 (1st Cir. 2008).

102 8 U.S.C. § 1229a(c)(3) (DHS must establish removability by clear and convincing evidence).

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

103 8 C.F.R. § 1003.30; 8 C.F.R. § 1240.10(e).

104 See De Faria v. INS, 13 F.3d 422, 424 (1st Cir. 1993) (Government motion to reopen proceedings allowed to amend charging document after criminal conviction listed on original charging document was vacated).

105 See Matter of Adamiak, 23 I. & N. Dec. 878, 881 (BIA 2008) (holding that Ohio conviction vacated for failure to administer alien warning was no longer a valid conviction for immigration purposes); Matter of Pickering, 23 I. & N. Dec. 621, 625 (BIA 2003) (holding that a conviction vacated solely in order to avoid immigration consequences remains a conviction for immigration purposes); Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000) (according full faith and credit to New York judgment vacating criminal conviction); but cf. Matter of Roldan, 22 I. & N. Dec. 512, 521 (BIA 1999) (holding that state rehabilitative statutes do not eliminate convictions for immigration purposes).

106 For a fuller discussion of these remedies, see Kesselbrenner & Rosenberg, Immigration Law and Crimes
(Thomson West 2007).

107 See G.L. c. 278, § 29D (amended by 2004 Mass. Acts 225; amendments effective Aug. 28, 2004).

108 See Commonwealth v. Grannum, 457 Mass. 128, 134 (2010); Commonwealth v. Berthold, 441 Mass. 183, 186 (2004).

109 See Commonwealth v. Hilaire, 437 Mass. 809 (2002) (holding that Legislature intended that judge orally advise defendant of immigration consequences of guilty plea; thus, written advisement of warnings contained in the “Tender of Plea or Admission/Waiver of Rights” form is insufficient).

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).

110 But see, for pleas prior to Aug. 28, 2004, Commonwealth v. Rzepphiewski, 431 Mass. 48 (2000) (holding that although tape recording of plea hearing had been destroyed and docket sheet did not indicate administration of immigration warning, there was sufficient evidence of advisement where judge found that defendant had admitted to sufficient facts after a hearing, judge had taken notes on specific details of the hearing, and judge’s practice was to include deportation advisement in plea colloquy); Commonwealth v. Pryce, 429 Mass. 556, 557-58 (1999) (finding sufficient evidence of advisement where docket sheet included the notation “Defendant offers to plead guilty – after hearing” and motion judge found that the notation referred to his court’s standard plea colloquy which included the deportation advisement); cf. Commonwealth v. Ciampa, 51 Mass. App. Ct. 459 (2001) (holding that general affidavit of judge was insufficient to reconstruct the record, where affidavit neither referred to a practice of giving warnings in the court during the relevant time period, nor specified that the plea judge’s practice was to administer all three required warnings).

111 Commonwealth v. Grannum, 457 Mass. 128, 134 (2010).

112 As amended, G.L. c. 278, § 29D states:

The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: ‘If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’ The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States.

If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission to sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization.

113 See Commonwealth v. Jones, 417 Mass. 661 (1994) (reversing denial of defendant’s 1992 motion to withdraw his 1981 admission to sufficient facts, and rejecting Commonwealth’s contention that defendant was manipulating the criminal justice system as there was no finding on when the defendant learned of his rights under G.L. c. 278, § 29D).

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.

114 G.L. c. 278, § 29D.

115 For admissions prior to Aug. 28, 2004, see also Commonwealth v. Villalobos, 437 Mass. 797 (2002) (holding that defendant could not withdraw admission to sufficient facts after receiving the warnings required by c. 278, § 29D, even though statutory language failed to apprise him of change in federal immigration law converting his admission to sufficient facts into a conviction, and even though the statutory language was misleading and might in some cases have affected the voluntariness of a plea).

116 431 Mass. 340 (2000).

117 See id. at 342 (allowing motion to vacate where the defendant was not warned about the risk of denial of admission, a consequence he subsequently faced).

118 Commonwealth v. Berthold, 441 Mass. at 186 (2004); see also Commonwealth v. Cartagena, 71 Mass. App. Ct. 907, 908-09 (2008); Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259-60 (2007); Commonwealth v. Rodriquez, 70 Mass. App. Ct. 721, 725-27 (2007); Commonwealth v. Barreiro, 67 Mass. App. Ct. 25, 26-27 (2006); Commonwealth v. Agbogun, 58 Mass. App. Ct. 206, 208 (2003).

119 Grannum, 457 Mass. at 134; Commonwealth v. Berthold, 441 Mass. at 185 (2004).

120 Grannum, 457 Mass. at 135, 136.

121 See, e.g., Commonwealth v. Cartagena, 71 Mass. App. Ct. 907, 908-09 (2008) (failing to recognize that adjustment to permanent residency amounts to an “admission” under immigration law, and thus incorrectly concluding that the alien warning statute does not “contemplate[]” the “denial of permanent residency”); Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259 (2007) (similarly misunderstanding that adjustment to permanent residency is an “admission,” and therefore failing to recognize that the defendant apparently faced an enumerated consequence – the denial of admission).

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

122 Commonwealth v. DeSorbo, 49 Mass. App. Ct. 910, 910-11 (2000).

123 See G.L. c. 278, § 29D.

124 Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

125 Strickland v. Washington, 466 U.S. 668, 688, 692 (1984); Padilla, 130 S.Ct. at 1482.

126 Padilla, 130 S.Ct. at 1483.

127 Id.

128 Id. at 1482, citing Strickland, 466 U.S. at 694.

129 460 Mass. 30 (2011).

130 Clarke, 460 Mass at 31(concluding that Padilla should be applied retroactively to guilty pleas obtained after enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)). The retroactivity of Padilla has been the subject of an evolving nationwide split in state and federal appellate courts. The Supreme Court recently granted certiorari in Chaidez v. U.S., 655 F.3d 684 (7th Cir. 2011), cert. granted, 2012 U.S. LEXIS 3335 (April 30, 2012) and will decide the issue during the 2012-13 term.

131 Id. at 47-48.

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

132 Grough, Expungement of Records, 1966 Wash. U.L.Q. 147, 149 (1966).

133 See Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999); see also Matter of Marroquin, 23 I. & N. Dec. 705 (A.G. 2005); Matter of Luviano, 23 I. & N. Dec. 718 (A.G. 2005).

134 See Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999).

135 See 8 U.S.C. § 1227(a)(2)(A)(vi); see also Matter of Suh, 23 I. & N. Dec. 626 (BIA 2003) (discussing what grounds of removability may be waived by presidential or gubernatorial pardons).

136 See Matter of H-, 7 I. & N. 249 (BIA 1956).

137 See Blumenson, Fisher & Kanstroom, eds. Massachusetts Criminal Practice, ch. 44 (LEXIS 2003).

138 See Matter of Cota-Vargas, 23 I. & N. Dec. 849, 852-53 (BIA 2005) (holding that receipt of stolen property offense was no longer an aggravated felony following revision of sentence from 365 to 240 days, even though defendant’s motion was premised on immigration consequences); Matter of Song, 23 I. & N. Dec. 173 (BIA 2001)

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.

(finding that noncitizen no longer had an aggravated felony theft offense after criminal court vacated 1 year sentence and imposed a sentence of 360 days); but see Commonwealth v. DeJesus, 440 Mass. 147 (2003) (“‘The possibility that the defendant would be subject to action by the [United States Immigration and Naturalization Service] is a collateral consequence and cannot be the basis for the judge’s decision as to the disposition of…any…case.’”) (quoting Commonwealth v. Quispe, 433 Mass. 508, 513 (2001)). DeJesus is likely abrogated by the ruling in Padilla v. Kentucky.

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.

139 For a general discussion of aggravated felonies, see “Immigration Consequences of Massachusetts Criminal Convictions” at p. 15

140 For information on crimes involving moral turpitude and their consequences, see “Immigration Consequences of Massachusetts Criminal Convictions” at pp. 12-14, 17, and 21.

141 For a general discussion of the consequences of controlled substance offenses see “Immigration Consequences of Massachusetts Criminal Convictions” at pp. 18, 21.

142 Many offenses in this category can cause a noncitizen to be deportable if domestic in nature. For a discussion of crimes of domestic violence, see p. 19-20.

143 For a discussion of firearms offenses, see “Immigration Consequences of Massachusetts Criminal Convictions” at p. 18.

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Consideración de Acción Diferida para los Llegados en la Infancia

Posted on August 28, 2012 by Mike Baker

Acción Diferida para los Llegados en la Infancia: ¿Quién puede ser considerado?

El Servicio de Ciudadanía e Inmigración de Estados Unidos comenzará a recibir solicitudes de Acción Diferida para los Llegados en la Infancia. La acción diferida es una determinación discrecional para diferir la deportación de un individuo como un ejercicio de discreción procesal. Aunque no provee un estatus legal ni es un vehículo hacia la residencia permanente o a la ciudadanía, los individuos que reciban acción diferida no serán removidos de los Estados Unidos por un período de dos años, sujeto a renovación, y podrán también solicitar autorización de empleo. Si quiere ser considerado para este proceso usted debe demostrar que:

  • legó a los Estados Unidos antes de los 16 años de edad
  • Ha residido continuamente en los Estados Unidos por un período mínimo de cinco años antes del 15 de Junio del 2012, y ha estado presente en EE.UU. a esa fecha
  • Tenía menos de 31 años a la fecha del 15 de junio de 2012
  • Entró Sin inspección antes del 15 de junio de 2012 o su estatus legal de inmigración expiró al 15 de junio de 2012
  • Está asistiendo a la escuela, se ha graduado de la escuela superior, u obtuvo un certificado de finalización de escuela superior, posee un Certificado de Educación General (GED, por sus siglas en inglés), o ha servido honorablemente en la Guardia Costera o en las Fuerzas Armadas de los Estados Unidos
  • No ha sido encontrado culpable de un delito grave, delito menos grave de carácter significativo, múltiples delitos menos graves, o representa una amenaza a la seguridad nacional o a la seguridad pública
  • Estuvo presente en EE.UU. el 15 de junio de 2012 y al momento de presentar su solicitud de acción diferida ante USCIS

Si cumple con las pautas mencionados anteriormente y quiere presentar su solicitud de Acción Diferida para los Llegados en la Infancia ante USCIS, usted tendrá que:

  • Reunir los documentos que evidencien que cumple con las pautas establecidas
  • Completar los formularios I-821D y I-765 y la Hoja Explicativa I-765WS
  • Enviar a USCIS los formularios y el pago de tarifas ($465 en total)
  • Visitar su Centro Local de Asistencia en Solicitudes de USCIS para su cita de toma de datos biométricos.

Luego de solicitar, usted podrá verificar el estatus de su solicitud en línea. Para más información, visite la página www.uscis.gov/accióndiferidade su sitio Web para las últimas noticias y actualizaciones acerca de este proceso.

posted by USCIS Blog Team @ 10:59 AM

Posted in Consideración de Acción Diferida para los Llegados en la Infancia, Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Form -821D Deferred Action, Illinois DREAM Act | Leave a comment

Filing Tips, Requesting Deferred Action for Childhood Arrivals

Posted on August 28, 2012 by Mike Baker

Filing your request for consideration of deferred action for childhood arrivals involves several steps. You need to submit multiple forms, evidence and fees. Small mistakes in preparing your request could lead to it being rejected. Please read these tips to avoid having your request rejected or delayed because of common filing errors.

1.    Mail all forms together – You must mail the following forms in one package:
c.    Form I-765WS, Worksheet
Read the mailing instructions to see where to mail the forms based on the state you live in. Remember to send it to the P.O. Box address if mailing through the U.S. Postal Service. All forms are available on www.uscis.gov for free. Do not pay for blank USCIS forms either in person or over the Internet.

2.   Sign your forms – You must sign both your Form I-821D and Form I-765. If someone helps you fill out the forms, that person must also sign both Form I-812D and Form I-765 in the designated box below your signature.

3.   Write your name and date of birth the same way on each form – Variations in the way information is written can cause delays. For example, you should not write Jane Doe on one form and Jane E. Doe on another form. It is important to read all instructions on the forms carefully.

4.   Use the correct version of Form I-765 – Always make sure you have the most recent form when submitting your request with USCIS. Review our Forms page to download the most recent version. You can download all USCIS forms and instructions for free on our website www.uscis.gov.

5.   Use Form I-821D NOT Form I-821 – Form I-821D is used to request consideration of deferred action for childhood arrivals. Form I-821 is a different form used to apply for Temporary Protected Status, an entirely different process.

6.   Do NOT e-file Form I-765 – Requests for consideration of deferred action cannot be e-filed. You must mail your package (Forms I-821D, I-765, I-765WS, evidence and fees) to the appropriate USCIS Lockbox.

7.   Submit correct fees –The fee to request consideration of deferred action for childhood arrivals is $465 and cannot be waived. There are fee exemptions available only in limited circumstances. You may submit separate checks of $380 and $85, or one single check of $465.

8.   Answer all questions completely and accurately – If an item is not applicable or the answer is “none,” leave the space blank. To ensure your request is accepted for processing, be sure to complete these required form fields:

Form I-821D: Name, Address, Date of Birth
Form I-765: Name, Address, Date of Birth, Eligibility Category

9.   Provide all required supporting documentation and evidence – You must submit all required evidence and supporting documentation. These documents are required for USCIS to make a decision on your request. Please organize and label your evidence by the guideline it meets.

10.  If you make an error on a form, start over with a clean form – USCIS prefers that you type your answers into the form and then print it. If you are filling out your form by hand, use black ink. If you make a mistake, please start over with a new form. Scanners will see through white out or correction tape and this could lead to the form being processed as incorrect, and lead to processing delays or denial. 

11. Carefully review age guidelines before filing –If you have never been in removal proceedings, or your proceedings have been terminated, you must be at least 15 years of age or older at the time of filing.You cannot be the age of 31 or older as of June 15, 2012, to be considered for deferred action for childhood arrivals.

To ensure that your request is accepted for processing, it is important that you review your entire request package before you file with USCIS.

posted by USCIS Blog Team @ 9:41 AM

Posted in Deferred Action Eligibility Screening Tool, Deferred Action for Childhood Arrivals, Deferred Action Process for Young People Who Are Low Enforcement, Deferred Action Process for Young People Who Are Low Enforcement Priorities, Deferred Action Status, Form -821D Deferred Action, Illinois DREAM Act, Requesting Deferred Action | Tagged | Leave a comment

United States v. Laguna, willfully interfering with a final deportation order, U.S. 7th Circuit Court of Appeals

Posted on August 17, 2012 by Mike Baker
Doc Uploaded Filed Description
1 06/07/2012 06/07/2012 Oral Argument
2 08/14/2012 08/14/2012 Opinion (KANNE)

Laguna immigrated to the U.S. with his parents in 1967, and became a lawful permanent resident. In 2001 he was convicted of unlawful possession of a stolen motor vehicle, with other related offenses. Because those felonies qualified as crimes of moral turpitude under 8 U.S.C. 1227(a)(2)(A)(ii), an immigration judge ordered Laguna removed and required Laguna to obtain a Polish passport. In 2004, after he finished serving his state sentences, Immigration and Custom Enforcement released Laguna on an order of supervision, which also required Laguna to obtain a passport. In 2010 Laguna finally completed the requisite application. The Polish consulate confirmed that his passport would be available on April 21, 2010. Laguna refused to pick up the passport and was detained and convicted of willfully interfering with a final deportation order (8 U.S.C. 1253(a)(1)(B) and (C) and sentenced to 18 months’ imprisonment. The Seventh Circuit affirmed, upholding the district court’s exclusion of evidence that ICE’s liberal treatment of Laguna during supervision negated the element of intent. https://mikebakerlaw.com/blog/–skip-columns=guidwp-content/uploads/2012/08/11-3469-2012-08-14Laguna.pdf

United States Court of Appeals

For the Seventh Circuit

No. 11-3469

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MIROSLAW LAGUNA,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 342-1—Virginia M. Kendall, Judge.

ARGUED JUNE 7, 2012—DECIDED AUGUST 14, 2012

Before MANION, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. Following two felony convictions in 2001, an immigration judge ordered Miroslaw Laguna, a Polish national, removed from the United States. Among other instructions, the final removal order required Laguna to obtain a Polish passport. Laguna refused, and for whatever reason immigration officials never strictly enforced that requirement. But in early 2010, immigration officials changed course and repeatedly and forcefully warned Laguna about the consequences of failing to obtain a passport. After he refused to heed those new warnings, Laguna was detained and charged with one count of willfully interfering with a final deportation order in violation of 8 U.S.C. § 1253(a)(1)(B) and (C). He was convicted and sentenced to eighteen months’ imprisonment. On appeal, Laguna argues that the district court improperly excluded certain exculpatory evidence and deprived him of his constitutional right to assert a complete defense. Finding no error in the district court’s ruling, we affirm his conviction.

I. BACKGROUND

Laguna immigrated to the United States with his parents in 1967, and for much of that time, he remained a lawful permanent resident. His immigration status became complicated in July and August 2001, when he was convicted of unlawful possession of a stolen motor vehicle, among other related offenses. Because those felonies qualified as crimes of moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii), an immigration judge ordered Laguna removed from the United States. To effectuate the deportation, the removal order required Laguna to obtain a Polish passport.1 In June 2004, after he finished serving his state sentences, Immigration and Custom Enforcement (ICE) officers briefly detained Laguna pursuant to the removal order. But not long after, ICE released Laguna on an order of supervision, which, like the removal order, required Laguna to obtain a passport. As part of his supervised release, Laguna was permitted to work, and he was required to attend in-person meetings with ICE officers once per month—although ICE later relaxed this requirement to once every other month, and eventually, to once per year (with periodic telephone check-ins). For the duration of his supervision, officers pestered Laguna about applying for the passport, but they evidently never pursued the matter with any urgency.

1 The parties agree that Polish law requires its citizens to use a Polish passport when entering and departing Poland. They also agree that passport applications must be made in person at the Polish consulate.

In early 2010, ICE chose to pursue Laguna’s refusal to obtain a passport. On February 26 and March 2, Deportation Officer Geoffrey Pepple advised Laguna that he needed to obtain a Polish passport or face consequences for refusing to do so. Laguna initially agreed and completed the requisite application. The Polish consulate then confirmed that his passport would be available on April 21, 2010. Upon learning of his application, ICE ordered Laguna to appear at its offices on April 21 so an officer could accompany him to the Polish consulate to retrieve the passport. That day, Laguna appeared as instructed, but he refused three different times to return to the consulate even after he was expressly told that his refusal to pick up the passport violated his removal and supervision orders and federal law. After officers could not convince him to pick up the passport, ICE revoked Laguna’s order of supervision and took him into custody.

On May 19, 2010, a grand jury returned a one-count indictment, charging Laguna with willfully interfering with a final deportation order between April 21 and April 29, 2010, in violation of 8 U.S.C. § 1253(a)(1)(B) and (C). Before trial, the government moved to exclude any evidence suggesting that Laguna had a good-faith reason for refusing to comply with the removal order. In response, Laguna argued that he should be permitted to offer testimony illustrating ICE’s course of dealings with him over the years because that relationship revealed that Laguna could not have willfully interfered with a final deportation order. In other words, ICE’s liberalized supervision conditioned Laguna to believe that he would not be deported. After reserving judgment on the issue until trial, the district court ruled that Laguna could elicit testimony suggesting he was cooperative with law enforcement or that he did not know the steps he needed to take to obtain a passport. But, the district court prohibited Laguna from offering evidence showing that he was a good, law-abiding person, which according to the district court, skated too closely to jury nullification. After a brief jury trial, Laguna was convicted and sentenced to eighteen months’ imprisonment. He filed this timely appeal after the district court denied his motion for a new trial.

II. ANALYSIS

Before proceeding to the merits, we pause to consider whether Laguna’s appeal is moot, see United States v. Larson, 417 F.3d 741, 747 (7th Cir. 2005), an argument neither party brought to our attention. For a live controversy to exist, the defendant must suffer from some continuing harm or “collateral consequence” of the conviction. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Since Sibron v. New York, 392 U.S. 40, 54-57 (1968), we presume that all criminal convictions (as opposed to prison disciplinary proceedings, for example) entail adverse collateral consequences. Spencer, 523 U.S. at 10; Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir. 1998). With that in mind, we briefly address mootness because Laguna does not face many of the same collateral consequences as other felons. For example, Laguna’s incarceration and supervised release have both ended. And his conviction does not affect his right to vote in federal elections (he is not a U.S. citizen), nor does it change his immigration status (he was already removable based on his 2001 state-court convictions). Nevertheless, this dispute remains live because Laguna faces a handful of less obvious consequences, including the possibility that any future testimony may be impeached, Fed R. Evid. 609, or the possibility that any future federal convictions may subject him to a criminal history upgrade, and thus, a longer sentence, U.S.S.G. § 4A1.1, among other potential consequences, see Sibron, 392 U.S. at 55 (stating, “most criminal convictions . . . entail adverse collateral legal consequences,” while noting that it did not canvass all of the possibilities in any detail). The potential for these collateral consequences is enough for us to determine that Laguna’s appeal is not moot.

Even if Laguna’s conviction does not entail any collateral consequences, his appeal falls within “a special category of disputes that are ‘capable of repetition’ while ‘evading review.’ ” Turner v. Rogers, 131 S. Ct. 2507, 2515 (2011). We apply this exception to the mootness doctrine when “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Id. (internal brackets omitted) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). Laguna’s appeal satisfies both criteria. First, Laguna was only sentenced to eighteen months’ imprisonment, which is not enough time for him to have obtained full judicial review. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978). Second, Laguna has consistently refused to obtain a passport dating back to 2004. Like the litigant who faces civil contempt charges for not making timely child-support payments, Turner, 131 S. Ct. at 2515, we believe that Laguna’s refusal to obtain a passport may continue indefinitely, thus paving the way for additional § 1253(a)(1)(B) charges.

With our jurisdiction secure, we turn to the merits. Laguna’s sole argument on appeal is that the district court erred by improperly excluding evidence tending to show that he never willfully interfered with his removal. We generally review the district court’s decision to exclude evidence for an abuse of discretion, United States v. Thornton, 642 F.3d 599, 604 (7th Cir. 2011), and we will reverse and order a new trial only if the purported error is not harmless, United States v. Boone, 628 F.3d 927, 932 (7th Cir. 2010). But, because Laguna claims that his excluded testimony violated his constitutional right to present a defense, “we review de novo the question of whether the evidentiary ruling had the effect of infringing that right while still taking into account the permissible scope of the district court’s discretion in evidentiary matters.” United States v. Carter, 410 F.3d 942, 951 (7th Cir. 2005) (internal quotation marks, brackets, and citations omitted).

To support the theory that his intent evidence was improperly excluded, Laguna begins by noting that ICE never punished him for refusing to obtain a passport from 2004 to early 2010. Instead, ICE actually liberalized his supervision order despite his noncompliance with the removal and supervision orders. Laguna then argues that his liberalized supervision and the sum of his interactions with ICE over the years conditioned him to believe that he could not be deported or even disciplined for future violations. He thus reasoned that ICE would remain indifferent towards his April 2010 refusal to obtain a passport. This predicted indifference is the basis for Laguna’s belief that he did not willfully violate § 1253(a)(1)(B).

Like all criminal defendants, Laguna has the right to present a defense and offer witness testimony. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (Criminal defendants must have “a meaningful opportunity to present a complete defense.”). But this right is not absolute. Rather, “judges may exclude marginally relevant evidence and evidence posing an undue risk of confusion of the issues without offending a defendant’s constitutional rights.” United States v. Alayeto, 628 F.3d 917, 922 (7th Cir. 2010). Here, the district court correctly found that Laguna’s proposed evidence was irrelevant and would do nothing more than confuse the jury—or in this case, invite the jury to acquit even if the government satisfied each element of the charged offense. In other words, the district court found that the proposed evidence risked jury nullification. See, e.g., United States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996) (“An unreasonable jury verdict, although unreviewable if it is an acquittal, is lawless, and the defendant has no right to invite the jury to act lawlessly.”). We agree.

Under § 1253(a)(1)(B) and (C), the government need only prove two elements: (1) Laguna was an alien subject to final removal; and (2) Laguna willfully refused to make timely applications for travel documents or took action designed to hamper his departure. Here, Laguna was only indicted for willfully interfering with his removal order during a brief eight-day period in 2010—April 21-29. The uncontested evidence presented at trial shows that Laguna knew he was under a valid removal order and that he refused to travel to the Polish consulate on April 21 even after he was explicitly warned about the consequences of failing to appear. That evidence readily satisfies both elements of § 1253(a)(1)(B) and (C).

Laguna’s proposed testimony about his relationship with ICE from 2004 to early 2010 is irrelevant. The statute only requires proof that Laguna voluntarily and intentionally—that is, willfully—refused to obtain a passport. Any evidence suggesting that some previous relationship with ICE superseded his statutory obligation is immaterial and confusing. In other words, Laguna’s evidence did not negate the government’s assertion that he (1) knew he was removable, (2) knew he needed to obtain a passport, and (3) knew his express refusal to do so contravened his removal order and federal law. Instead, his evidence only shows that he subjectively believed that he would not be prosecuted, which is no defense at all. Such a defense is akin to a defendant asserting that he knew he violated the law, but he did not think he would be caught. Aside from being irrelevant, the evidence also invites jury nullification. That is, the jury might be compelled to acquit simply because ICE had been lenient with Laguna in the past or on the ground that Laguna was a good guy. Laguna cannot ask the jury to return an unlawful verdict, see Perez, 86 F.3d at 736, as the district court rightly held.

Finally, Laguna argues that his proposed defense was the sole legal argument that provided a complete rebuttal to his indictment. This is untrue. The district court expressly provided that Laguna could offer intent evidence showing that he was cooperative with law enforcement or that he did not know the steps he needed to take to obtain a passport. He was also permitted to argue that he was unaware of the outstanding removal order. Each line of testimony properly negates the mens rea element of § 1253(a)(1)(B) and (C) without approaching jury nullification.

III. CONCLUSION

Because we find that the district court did not err in excluding certain evidence, we AFFIRM Laguna’s conviction

8-14-12

 

Posted in 7th Circuit, 7th Circuit Cases- Aliens, exculpatory evidence, mootness doctrine, U.S. 7th Circuit Court of Appeals, willfully interfering with a final deportation order | Leave a comment