BIA Holds that California Conviction for Infliction of Corporal Injury on Spouse Is Crime of Violence

Posted on March 26, 2010 by Mike Baker

The BIA held in Matter of Perez Ramirez, 25 I. & N. Dec. 203 (B.I.A. Mar. 17, 2010), that (1) where a criminal alien’s sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence to confinement is considered to be part of the penalty imposed for the original underlying crime rather than punishment for a separate offense and (2) an alien’s misdemeanor conviction for willful infliction of corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code qualifies categorically as a conviction for a “crime of violence” within the meaning of 18 USCA § 16(a).

The respondent, Antonio Perez Ramirez, is a native and citizen of Mexico and a lawful permanent resident of the U.S. On August 18, 2004, he was convicted pursuant to a nolo contendere plea in the Superior Court of California, County of Los Angeles, of the misdemeanor offense of inflicting corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code. The trial court did not impose a sentence for this offense but instead suspended imposition of a sentence and granted the respondent 36 months of “summary probation.” As a condition of this probation order, the trial court ordered the respondent to enroll in a 12-month batterer’s counseling program. The respondent was also ordered not to annoy, harass, or molest anyone involved in the case and was served with a copy of a protective order. On July 24, 2007, the respondent stipulated in open court to a probation violation, and the trial court found that he had violated the terms of his probation. His probation was reinstated and continued on the same terms and conditions except that he was also ordered to serve 365 days in the Los Angeles County Jail for his offense. In a decision dated June 24, 2009, an immigration judge (IJ) found the respondent removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of a “crime of violence” for which the term of imprisonment is at least one year, which is an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. The respondent appealed to the BIA.

INA § 101(a)(43)(F) defines “aggravated felony” to include crimes of violence as defined in 18 USCA § 16(a) that resulted in a term of imprisonment of at least one year. 18 USCA § 16(a) in turn defines “crime of violence” to include either (1) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (2) an offense that is a felony that by its nature involves a substantial risk that physical force will be used against another in the course of its commission.

In an opinion written by Board Member Roger Pauley for the panel, which included Board Members Lauri S. Filppu and Patricia A. Cole, the Board rejected the respondent’s arguments that he was not convicted of a crime of violence for which the term of imprisonment was at least one year because (1) the use, attempted use, or threatened use of physical force against the person of another, which is required by 18 USCA § 16(a), need not be shown for a conviction under Cal. Penal Code § 273.5(a) because, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another, thus precluding any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another and (2) under California law, the 365-day jail term imposed by the trial court on July 24, 2007, did not represent a sentence to a “term of imprisonment of at least one year” in connection with his underlying criminal conviction but instead was the result of his probation violation and constituted only a condition of his reinstated and modified order of probation.

The Board first held that under Supreme Court,  circuit court, including the Ninth Circuit, the circuit in which this case arose, and Board  precedent, the modification of the respondent’s sentence following his probation violation, which resulted in a sentence of confinement for 365 days, must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings rather than punishment for a separate offense. Thus, the respondent’s 365-day term of imprisonment, imposed following modification of his probation, represented a one-year sentence for violating Cal. Penal Code § 273.5(a).

The Board then turned to the respondent’s argument that his conviction was not a “crime of violence” under 18 USCA § 16 because the use, attempted use, or threatened use of physical force against the person of another, which 18 USCA § 16(a) requires, need not be shown for a conviction under Cal. Penal Code § 273.5(a), which provides that:
Any person who willfully inflicts upon a person who is his or her spouse … corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year …
Preliminarily, the Board found that, while this language would appear to only prescribe the allowable punishment for a felony, when it is read in conjunction with Cal. Penal Code § 17, it is clear that the provision in § 273.5(a) allowing for imprisonment in a county jail for not more than one year is the maximum possible punishment for a misdemeanor since under § 17 a felony is a crime that is punishable by death or imprisonment in the state prison and every other crime or public offense is a misdemeanor except those offenses classified as infractions. Therefore, the Board concluded that, because the respondent was ordered to serve 365 days in county jail, under California law, his offense would be excluded from the definition of a felony. Nevertheless, the Board pointed out, the respondent’s misdemeanor may be an “aggravated felony” since he was sentenced to a term of imprisonment for at least one year. The Board cited U.S. v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th Cir. 2002), which held that a crime may be classified as an aggravated felony under INA § 101(a)(43)(F) without regard to whether the crime is labeled a felony or a misdemeanor under state law when the crime is a “crime of violence” and the sentence imposed by the state court is one year.

The Board then addressed the question of whether the respondent’s conviction was for a “crime of violence.” The Board rejected the respondent’s contention that, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another and thus precludes any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another because California state court decisions have found that the term “willfully” as employed in § 273.5(a) means a purpose or willingness on the part of the actor to commit the act that results in corporal injury and have defined the term “inflicts” as used in § 273.5(a) as meaning that the corporal injury must result from a direct application of force by the perpetrator upon the victim. The Board further noted that § 273.5(c) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” Since a person cannot be convicted under § 273.5(a) without willfully and directly applying upon another person a force that is of such violence as to cause a wound or external or internal injury to the victim, the Board was satisfied that the use of physical force against the person of another is an element of the offense within the meaning of 18 USCA § 16(a).

While § 7(1) provides that the term “willfully” does not require any intent to injure another, the Board concluded that the “volition” requirement implicit in the term “use” relates to the application of force against the victim and not to the resulting infliction of injury. Accordingly, the Board agreed with the IJ that the respondent’s California conviction for inflicting corporal injury on a spouse qualifies categorically as a conviction for a “crime of violence” under 18 USCA § 16(a) and that, since his conviction resulted in the imposition of a term of imprisonment of one year following his violation of probation, he is removable as an alien convicted of a “crime of violence” aggravated-felony offense. Accordingly, the respondent’s appeal was dismissed.

Posted in BIA, Board of Immigration Appeals, Domestic battery | Leave a comment

Establishing good cause for a continuance of proceedings-7th Cir. 2010

Posted on March 26, 2010 by Mike Baker

Juarez v. Holder, No. 08-1788: Denial of Motion to Reopen/Noncompliance with Biometrics Requirements

Juarez v. Holder (Sykes) 
Oral Argument | Full Text

Petition for review BIA’s decision that petitioners’ untimely applications and failure to provide the required biometrics meant they had abandoned their applications for relief is denied where: 1) the petitioners were given ample time to file their applications for relief and provide biometrics and did not have good cause for their delay; and 2) the IJ did not abuse his discretion in denying their motion for a continuance; and 3) IJ did not abuse his discretion in denying their requests for relief because of their failure to comply with these application prerequisites.

Bd. did not err in affirming IJ’s removal order after IJ found that aliens’ applications seeking relief from removal were untimely since they were filed 14 months after deadline set forth by IJ and lacked required set of fingerprints. Applicable regulatory scheme (8 CFR section 1003.31(c)) permits IJs to set time limits for filing applications seeking relief from removal, and instant failure by aliens to file timely applications or supply required fingerprints within deadline constituted waiver of applications. Fact that one alien’s asylum application had been filed prior to April 1, 2005 effective date of instant regulations was irrelevant.

The petitioners are a mother and son from Guatemala who entered the U.S. illegally in 1989 and 1997, respectively. The mother filed for asylum after her arrival, but the immigration authorities did not adjudicate the application. Removal proceedings were commenced against both petitioners in 2004, and they conceded the charges. The lead respondent, Ms. Juarez, advised the IJ that she intended to file for cancellation of removal and to pursue her asylum application filed in 1990. Her son expressed an intention to file his own asylum application as he was not considered a derivative on his mother’s case. The petitioners’ attorney advised the IJ that he required 60 days to file the applications. The IJ approved this request and set the filing date for September 26, 2005, with the individual hearing date set for November 13, 2006. The IJ informed both petitioners that they needed to provide fingerprint and biographical information before the date of the next hearing in order to be eligible for relief. Indeed, the IJ addressed the petitioners individually and instructed them both to “pester your attorney” to get the fingerprints submitted on time. Their attorney acknowledged his familiarity with the biometrics procedures and said that he understood that the process could take some time. The applications were not filed within the time set by the IJ nor did the petitioners comply with the biometrics requirements. Less than a week before the November 2006 hearing, they filed motions asking for a continuance. Their attorney advised the IJ that the applications had been filed, but he had not yet received official confirmation in order to arrange the fingerprinting appointment. Counsel admitted that he had been unable to devote adequate time to preparing his clients’ cases.

The IJ denied the continuance motion, reasoning that good cause had not been shown. The asylum application actually arrived at the court five days before the individual hearing date and the cancellation application arrived on the hearing date, but after the hearing had been concluded. As pointed out by the circuit court, the applications were filed 14 months late. Although conceding that good cause was absent, petitioners’ counsel argued before the IJ that his clients should not be penalized for missing the court’s deadlines when the immigration authorities had not acted on the lead petitioner’s asylum application for more than a decade. The IJ agreed with DHS counsel that the petitioners had abandoned their claims by failing to submit fingerprints or timely filing their relief applications, and consequently ordered their removal. An appeal was filed with the BIA, but the petitioners’ attorney failed to file a brief. Finding the IJ’s decision to be valid, the Board dismissed the appeal.

The circuit court explained that, in light of the Supreme Court’s decision in Kucana v. Holder, 130 S. Ct. 827 (2010) (holding that the courts have jurisdiction to review denials of motions to reopen), its review in regard to the denial of the continuance was plenary, thus retreating from its prior decision in Iqbal Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), which held that the court lacked jurisdiction over such a matter. The court cited to the applicable regulation–8 CFR § 1003.31(c)–authorizing IJ’s to set and extend time limits for filing of applications and related documents, and providing that if an application is not filed within the time period it shall be deemed to be waived. It also cited to 8 CFR § 1003.47(c), providing that an alien’s failure to comply with processing requirements for biometrics and other biographic information within the time allowed will result in dismissal of the application, unless the applicant demonstrates that such failure was the result of good cause. It also referred to 8 CFR § 1003.29, which provides that an IJ may grant a motion for continuance for good cause shown.

The court concluded that the IJ was well within his discretion in denying the petitioners’ continuance motion and their requests for relief from removal as well. It rejected the petitioners’ contention that 8 CFR § 1003.47 (the biometric regulation) is ultra vires, pointing out that by statute the Attorney General (AG) is prohibited from granting asylum to any applicant until his or her identity is checked against all appropriate records or databases to determine any ground on which the alien may be inadmissible or deportable from the U.S. or ineligible to apply for or be granted asylum, citing to INA § 208(d)(5)(A)(i) [8 USCA § 1158(d)(5)(A)(i)]. The court declared that the 60 days provided to file was “plenty of time.” The court also ruled that the government’s delay in the matter was not a relevant factor, citing to Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (decision when to initiate removal proceedings is in the discretion of immigration authorities). The court observed that the petitioners had been represented by the same attorney throughout the proceedings so there was no claim for ineffective assistance of counsel; however, the court directed the court clerk to transmit a copy of the opinion to the Arkansas Committee on Professional Conduct and the Department of Justice’s Executive Office for Immigration Review.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Motion to Reopen | Leave a comment

Health-Care Reform Act Implications for Alien

Posted on March 26, 2010 by Mike Baker

The new health-care reform act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 201), the Patient Protection and Affordable Care Act, has numerous implications for non-U.S. citizens.
Section 1312(f)(3) of the Act states:
(3) ACCESS LIMITED TO LAWFUL RESIDENTS.–If an individual is not, or is not reasonably expected to be for the entire period for which enrollment is sought, a citizen or national of the United States or an alien lawfully present in the United States, the individual shall not be treated as a qualified individual and may not be covered under a qualified health plan in the individual market that is offered through an Exchange.
Another provision limiting qualification only to U.S. citizens or lawfully present aliens is found in § 1331(e)(1)(B), which addresses individuals eligible for state-established basic health programs for low-income individuals not eligible for Medicaid. The provision states that an eligible individual is, among other things, someone:
whose household income exceeds 133 percent but does not exceed 200 percent of the poverty line for the size of the family involved, or, in the case of an alien lawfully present in the United States, whose income is not greater than 133 percent of the poverty line for the size of the family involved but who is not eligible for the Medicaid program under title XIX of the Social Security Act [FN1] by reason of such alien status.
In § 1401, the Act provides for refundable credits for certain purchasers of a qualified health-care plan by adding a new § 36B to Subpart C of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986. [FN2] With regard to non-U.S. citizens, that new section, in subsection (c), provides:
(B) SPECIAL RULE FOR CERTAIN INDIVIDUALS LAWFULLY PRESENT IN THE UNITED STATES.–If–
(i) a taxpayer has a household income which is not greater than 100 percent of an amount equal to the poverty line for a family of the size involved, and
(ii) the taxpayer is an alien lawfully present in the United States, but is not eligible for the Medicaid program under title XIX of the Social Security Act by reason of such alien status,
the taxpayer shall, for purposes of the credit under this section, be treated as an applicable taxpayer with a household income which is equal to 100 percent of the poverty line for a family of the size involved.
With regard to aliens not lawfully present in the U.S., new § 36B states the following:
(e) RULES FOR INDIVIDUALS NOT LAWFULLY PRESENT.–
(1) IN GENERAL.–If 1 or more individuals for whom a taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year (including the taxpayer or his spouse) are individuals who are not lawfully present–
(A) the aggregate amount of premiums otherwise taken into account under clauses (i) and (ii) of subsection (b)(2)(A) shall be reduced by the portion (if any) of such premiums which is attributable to such individuals, and
(B) for purposes of applying this section, the determination as to what percentage a taxpayer’s household income bears to the poverty level for a family of the size involved shall be made under one of the following methods:
(i) A method under which–
(I) the taxpayer’s family size is determined by not taking such individuals into account, and
(II) the taxpayer’s household income is equal to the product of the taxpayer’s household income (determined without regard to this subsection) and a fraction–
(aa) the numerator of which is the poverty line for the taxpayer’s family size determined after application of subclause (I), and
(bb) the denominator of which is the poverty line for the taxpayer’s family size determined without regard to subclause (I).
(ii) A comparable method reaching the same result as the method under clause (i).
(2) LAWFULLY PRESENT.–For purposes of this section, an individual shall be treated as lawfully present only if the individual is, and is reasonably expected to be for the entire period of enrollment for which the credit under this section is being claimed, a citizen or national of the United States or an alien lawfully present in the United States.
(3) SECRETARIAL AUTHORITY.–The Secretary of Health and Human Services, in consultation with the Secretary, shall prescribe rules setting forth the methods by which calculations of family size and household income are made for purposes of this subsection. Such rules shall be designed to ensure that the least burden is placed on individuals enrolling in qualified health plans through an Exchange and taxpayers eligible for the credit allowable under this section.
New § 36B is applicable to taxable years ending after December 31, 2013.
Section 1402 of the Act, which addresses a plan issuer’s obligation to reduce the cost of the plan imposed on certain individuals who demonstrate to the government’s satisfaction that the individual or family meet certain low-income criteria, excludes unlawfully present individuals from benefitting from this reduction in cost. In the case of a family in which one or more members are not lawfully present in the U.S., the Act provides calculations for determining whether the remaining family members are eligible for the reduced-cost plan. Section 1402(e) provides:
(e) RULES FOR INDIVIDUALS NOT LAWFULLY PRESENT.–
(1) IN GENERAL.–If an individual who is an eligible insured is not lawfully present–
(A) no cost-sharing reduction under this section shall apply with respect to the individual; and
(B) for purposes of applying this section, the determination as to what percentage a taxpayer’s household income bears to the poverty level for a family of the size involved shall be made under one of the following methods:
(i) A method under which–
(I) the taxpayer’s family size is determined by not taking such individuals into account, and
(II) the taxpayer’s household income is equal to the product of the taxpayer’s household income (determined without regard to this subsection) and a fraction–
(aa) the numerator of which is the poverty line for the taxpayer’s family size determined after application of subclause (I), and
(bb) the denominator of which is the poverty line for the taxpayer’s family size determined without regard to subclause (I).
(ii) A comparable method reaching the same result as the method under clause (i).
(2) LAWFULLY PRESENT.–For purposes of this section, an individual shall be treated as lawfully present only if the individual is, and is reasonably expected to be for the entire period of enrollment for which the cost-sharing reduction under this section is being claimed, a citizen or national of the United States or an alien lawfully present in the United States.
(3) SECRETARIAL AUTHORITY.–The Secretary, in consultation with the Secretary of the Treasury, shall prescribe rules setting forth the methods by which calculations of family size and household income are made for purposes of this subsection. Such rules shall be designed to ensure that the least burden is placed on individuals enrolling in qualified health plans through an Exchange and taxpayers eligible for the credit allowable under this section.
With regard to the procedures for establishing eligibility for exchange participation, premium tax credits and reduced cost-sharing, and individual responsibility exemptions, found in § 1411 of the Act, a declaration of citizenship or immigration status must be made:
(b) INFORMATION REQUIRED TO BE PROVIDED BY APPLICANTS.–
(2) CITIZENSHIP OR IMMIGRATION STATUS.–The following information shall be provided with respect to every enrollee:
(A) In the case of an enrollee whose eligibility is based on an attestation of citizenship of the enrollee, the enrollee’s social security number.
(B) In the case of an individual whose eligibility is based on an attestation of the enrollee’s immigration status, the enrollee’s social security number (if applicable) and such identifying information with respect to the enrollee’s immigration status as the Secretary, after consultation with the Secretary of Homeland Security, determines appropriate.
This information is subject to verification as provided in subsection (c) of the section:
(c) VERIFICATION OF INFORMATION CONTAINED IN RECORDS OF SPECIFIC FEDERAL OFFICIALS
(2) CITIZENSHIP OR IMMIGRATION STATUS.–
(A) COMMISSIONER OF SOCIAL SECURITY.–The Secretary shall submit to the Commissioner of Social Security the following information for a determination as to whether the information provided is consistent with the information in the records of the Commissioner:
(i) The name, date of birth, and social security number of each individual for whom such information was provided under subsection (b)(2).
(ii) The attestation of an individual that the individual is a citizen.
(B) SECRETARY OF HOMELAND SECURITY.–
(i) IN GENERAL.–In the case of an individual–
(I) who attests that the individual is an alien lawfully present in the United States; or
(II) who attests that the individual is a citizen but with respect to whom the Commissioner of Social Security has notified the Secretary under subsection (e)(3) that the attestation is inconsistent with information in the records maintained by the Commissioner;
the Secretary shall submit to the Secretary of Homeland Security the information described in clause (ii) for a determination as to whether the information provided is consistent with the information in the records of the Secretary of Homeland Security.
(ii) INFORMATION.–The information described in clause (ii) is the following:
(I) The name, date of birth, and any identifying information with respect to the individual’s immigration status provided under subsection (b)(2).
(II) The attestation that the individual is an alien lawfully present in the United States or in the case of an individual described in clause (i)(II), the attestation that the individual is a citizen.
The Act, in § 1501, establishes new Chapter 48 to Subtitle D of the Internal Revenue Code of 1986. The new chapter mandates the maintenance of minimal essential coverage. Individuals who are not lawfully present in the U.S. are not considered applicable individuals and cannot obtain plans, and thus the requirement does not apply to them.

[FN1]. Act of Aug. 14, 1935, ch. 531, 49 Stat. 620 (codified as amended at 42 USCA §§ 301 to 1399). For a discussion of the Social Security Act as it pertains to aliens generally, see Allott, Social Security Issues in Immigration Practice, 91-10 Immigration Briefings 1 (Oct. 1991).

[FN2]. Pub. L. No. 99-514, 100 Stat. 2085 (Oct. 22, 1986).

Posted in Health-Care Reform Act Implications for Alien | Leave a comment

2008 American Community Survey and Census Data on the Foreign Born by State

Posted on March 23, 2010 by Mike Baker

 While the immigrant population of the United States increased by 6.9 million between 2000 and 2008, the impact of this growth varied considerably from state to state in terms of population size and characteristics. To facilitate analysis of these differences, the interactive map below provides national and state-by-state data on immigrant populations from the 1990 and 2000 Decennial Censuses and the 2007 American Community Surveys (ACS). Click the desired state to generate fact sheets about the demographic & social, &education, workforce, and income & poverty characteristics.
A sampling of the types of data included in each of the four fact sheets for each state:

  • Demographic and Social – (updated with 2008 data): top countries of birth, geographic mobility, children in immigrant families;
  • Language and Education: – (updated with 2008 data) rates of limited English proficiency and levels of educational attainment in 1990, 2000, and 2006, rates of linguistic isolation in 2007;
  • Workforce: the foreign-born share of the workforce, top occupations and industries;
  • Income and Poverty: average incomes, income distributions, poverty rates.
State Rankings – (updated with 2008 data)

To view the 2000 version of the data tool, click here.
This data tool is a project of MPI’s National Center on Immigrant Integration Policy. It was made possible with generous support from Carnegie Corporation of New York.

Posted in 2008 Census Data, international migration data | Leave a comment

A postconviction sentence modification may be effective in avoiding a conviction for immigration purposes or to eliminate an aggravated-felony ground of deportability.

Posted on March 10, 2010 by Mike Baker

Where a criminal court vacated the 1-year prison sentence of an alien convicted of a theft offense and revised the sentence to 360 days of imprisonment, the alien does not have a conviction for an aggravated felony within the meaning of section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. V 1999). Matter of Song, 23 I. & N. Dec. 173 (BIA 2001). 

The Board gave effect to a sentence reduction and terminated removal proceedings for Min Song, an individual whose one-year sentence for theft was decreased to 360 days. The reduced sentence, the BIA ruled, effectively removed Song from the reach of provisions in the Immigration and Nationality Act relating to the definition of “aggravated felony.”

Song, a native Korean who had been admitted to the U.S. as a lawful permanent resident in 1981, was convicted of theft and sentenced to a year in prison in the late 1980s. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the INA’s definition of “aggravated felony” to include theft offenses for which the term of imprisonment is at least one year. Individuals found removable for aggravated felony convictions are also rendered ineligible for any relief from removal. Based on his theft conviction, Song was placed in removal proceedings and subsequently ordered removed by the immigration court.

On appeal, Song challenged the immigration court’s finding that his aggravated felony conviction made him ineligible for relief under the INA. Prior to filing his appellate brief, Song applied for and obtained an order vacating and revising his previous sentence nunc pro tunc to 360 days. Nunc pro tunc orders are used by courts to revise prior judgments or orders in matters where the court originally had jurisdiction. The new order replaces the original and is considered to have the same status, notwithstanding the modification.

In his appellate brief, Song presented new evidence demonstrating that his criminal sentence had been reduced to 360 days. As Song’s new conviction was for a term of less than one year, the BIA determined that he could no longer be considered an aggravated felon. In reaching its decision, the BIA relied on Matter of Martin, 18 Int. Dec. 226 (1982), in which it ruled that where an individual is resentenced for a crime, the new sentence determines whether or not he or she is deportable.

The BIA distinguished its ruling in Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999), which held that the IIRIRA provision defining “conviction” for immigration purposes precludes the BIA from giving effect to expungements or other post-conviction state rehabilitative orders. In this case the definition of “conviction” is not at issue; the sentence reduction did not eliminate the fact that there was a conviction, but rather changed the term of imprisonment such that the conviction falls outside the definition of an aggravated felony.

There are several different sentencing options which judges may exercise when sentencing someone for a criminal offense. These options can include a sentence to incarceration, deferred adjudication, probation, supervision, conditional discharge, and first-offender probation.

A deferred adjudication sentence is a form of judge-ordered supervision which permits a defendant to accept responsibility for the crime without suffering all of the potential consequences and liabilities from the entry of a formal conviction under state law. The judge defers final decision on the charge, places the person on probation, and sets conditions of probation which, if fulfilled, avoid a final conviction under state law.

Where a deferred adjudication statute requires a plea of guilty, a plea of nolo contendere (no contest), or an admission of sufficient facts to warrant a finding of guilt and some form of punishment is ordered (i.e., the program itself), such adjudication is considered a conviction for immigration purposes.

Imposition of court costs and surcharges qualifies as a penalty or punishment for immigration purposes under INA § 101(a)(48)(A)(ii). In Matter of Cabrera, the Board addressed the issue of whether the imposition of costs and surcharges following a plea in criminal proceedings constitutes a “penalty” or “punishment” and, therefore, a conviction under INA § 101(a)(48)(A)(ii).In that case, the noncitizen entered a plea of nolo contendere in Florida state court to the charge of possession of a controlled substance, and adjudication of guilt was withheld. Under Florida law, people who plead guilty or nolo contendere, including in cases where adjudication is withheld, can be assessed additional costs and surcharges. The noncitizen in this case was assessed $458 following his plea. The Board, in reaching its decision, reviewed federal and state case law which held that costs, surcharges and other assessments constitute a “penalty” or “punishment” within the criminal scheme. For these reasons, the Board held that the noncitizen was subject to removal as a result of a conviction of violating a law relating to controlled substances.

  • Iqbal v. Bryson, 2009 WL 192505 (E.D. Va. 2009)(New York pretrial diversion adjudication not a conviction for immigration purposes where it does not require defendant to make a plea of guilty).
  • Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004)In re Salazar-Regino, 23. Dec. 223, 2002 WL 339535 (B.I.A. 2002)In re Punu, 22 . Dec. 224, 1998 WL 546634 (B.I.A. 1998)
  • Matter of Cabrera, 24 Dec. 459 (B.I.A. 2008)
  • In re Song, 23 Dec. 173, 2001 WL 1030900 (B.I.A. 2001)
  • In re Cota-Vargas, 23 Dec. 849, 2005 WL 3105750 (B.I.A. 2005)(Board gave effect to sentence reduction even where the sole purpose was to avoid immigration consequences, holding that, where a sentence was modified nunc pro tunc expressly to avoid deportation for an aggravated felony, the immigration court and the Board must recognize the modified sentence); In re Pickering, 23 Dec. 621, 2003 WL 21358480 (B.I.A. 2003)(distinguished).
Posted in BIA, Board of Immigration Appeals, postconviction sentence modification, sentence reduction | Leave a comment