American Dream™ Shield
At the American Dream™ Law Office, the American Dream™ Shield, we have represented numerous immigrants in immigration courts around the country. Most of these individuals dealt with consequences of uninformed please by their criminal attorneys, who failed to consult with an immigration attorney before entering the plea. The United States Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), heightened the standard of care for criminal attorneys regarding the advice they should render relating to the criminal consequences of a client’s plea. The Court ruled that a criminal attorney is not immune from liability if he or she fails to explain whether the plea will have adverse effects on a client’s immigration status. The Court obligated criminal attorneys to either consult with an immigration attorney or become familiar with the immigration consequences themselves. At the American Dream™ Law Office, we help criminal attorneys limit their exposure by thoroughly dissecting a potential plea and advising the attorney on the proper terminology in a plea.
What is a Conviction for Immigration Purposes?
It is crucial for a criminal attorney to understand that please what might be inconsequential from a criminal perspective might end up negatively affecting a client’s immigration status. A criminal attorney might fail to defend his client’s American Dream™ by pleading to a Withhold of Removal, for example, which would be counted as a win in criminal court, but serves as admission and a conviction for immigration purposes.
Section 101(a)(48) [8 USC 1101(a)(48)] of the Immigration and Nationality Act (INA), defines a conviction as follows:
(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.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
A criminal attorney should pay particular attention to the language in section (i), which includes mere admissions of certain facts sufficient for a finding of guilt. So, even though a client might avoid a criminal conviction, the mere admission of certain facts on the record may have adverse immigration consequences for the client. It is best to consult with Attorney Ahmad Yakzan, the American Dream™ Shield, before entering a plea, to avoid such harsh consequences.
What are Some of the Possible Consequences and How Are Crimes Classified under the INA?
There are several classifications of crimes under the INA, which, individually, may lead to possible removal from the United States. A crime might meet several definitions under the INA, leading to different consequences. For example, a conviction that would qualify as an aggravated felony, might bar the client from filing for any relief, or bar him from applying for citizenship in the future. Here are some of the possible classifications under the Act:
- Crimes Involving Moral Turpitude (CIMT): The Act does not include a definition of the term “Crimes Involving Moral Turpitude”. The Board of Immigration Appeals defined them as crimes that are “base, vile, or depraved, and contrary to the accepted rules of morality.” See Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). These crimes invoke both the inadmissibility deportability grounds under immigration and might bar certain types of relief. However, some of these crimes are waivable under the Act. For example, a foreign conviction for a fraud crime might trigger the inadmissibility grounds under the Act, but the Applicant may apply for a waiver if the inadmissibility would cause hardship to the American citizen or Lawful Permanent Resident Petitioner. Some crimes that have been classified as CIMTs include fraud crimes, assault with a deadly weapon, aggravated assault against a law enforcement officer, and kidnapping. Multiple CIMT crimes might also bar a Respondent in removal proceedings from obtaining a bond. So these crimes might have grave consequences for a client, and a criminal attorney should consult with Attorney Ahmad Yakzan.
- Aggravated Felonies: An immigrant might be deportable if he or she commits an aggravated felony after admission. These felonies might be the gravest crimes under the Act and might lead to a permanent inability to apply for naturalization under the Act. Aggravated felonies are listed and defined in 8 U.S.C. §1101(a)(43). They include crimes ranging from murder to illicit trafficking and conspiracies. Immigration and federal judges use the categorical and non-categorical approaches to determine whether a specific crime fits under the definition of these crimes and to determine the immigration consequences of a specific crime. These crimes make an immigrant either inadmissible under INA §212 or deportable under INA §237. Inadmissibility refers to alien’s ability to come into the US, which Deportability relates to whether the immigrant could be removed from the United States. These crimes have very grave consequences and a criminal attorney should consult an immigration attorney before pleading a client to this sort of crime.
How Do You Determine if a Crime has Immigration Consequences?
Immigration and Federal Courts determine whether a specific crime has immigration consequences by using either the categorical or non-categorical approaches. In a nutshell, the categorical approach means that a crime does not have any immigration consequences if it is not a categorical match to a corresponding federal statute. The modified categorical approach, allows a court to reach beyond the record of conviction to ascertain whether the crime has immigration consequences. For example, in a case involving burglary, a conviction under Florida’s statute is not a categorical match to the federal burglary statute since it prohibits entry into the curtilage, while the latter does not. So a client may avoid removal if he or she is convicted under Florida’s statute if the record of conviction does not include the matter or location of entry.
How Can the American Dream™ Shield Help You and Your Clients?
Attorney Ahmad Yakzan can help you, the criminal attorney, limit your liability and exposure to malpractice by thoroughly analyzing the facts and the record of conviction to lessen your client’s exposure to immigration consequences. Attorney Ahmad Yakzan has represented clients in immigration courts and has successfully argued these cases. Let us help you help your client by calling or filling out the form below.
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