Attorney General Issues New Opinion Affecting Criminal Immigrants November 20, 2008
In the past few years, the immigration service has heightened its efforts to locate and remove individuals with criminal convictions that appear to violate the immigration laws.The focus on the removal of criminal immigrants has resulted in a rise of court cases interpreting the immigration provisions that render individuals inadmissible or removable from the US.Since immigration judges and appellate judges throughout the country interpret the laws differently, however, conflicting court decisions has resulted in uncertainty and confusion. In an effort to stem this confusion, the Attorney General issued an opinion on November 7, 2008, addressing the legal question of which criminal convictions are considered to be “crimes involving moral turpitude” (CMT) under the immigration laws.Generally, a crime is deemed to be a CMT if it involves 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.”Hamdan v. INS, 98 F.3d 183, 185-86 (5th Cir. 1996).It requires that the individual have some form of knowledge that the conduct is of such an offensive nature.The determination of whether a criminal conviction is a CMT or not is vital as it impacts an individual’s eligibility to acquire, as well as retain, lawful permanent residency. For an individual applying to acquire permanent residency, he will be considered inadmissible if he has been convicted of a CMT.The only exception to this rule is if the criminal conviction is for a crime where the maximum possible penalty does not exceed one year, and the actual sentence imposed is 6 months or less.Unless the exception applies, individuals with a CMT will be denied permanent residency unless they qualify for a waiver of the criminal inadmissibility provision. For an individual who is already a lawful permanent resident, a criminal conviction that is deemed a CMT may render him removable from the US.This is the case if the conviction takes place within 5 years of becoming a permanent resident, and the crime is one where a sentence of one year or more could have been imposed.This is also the case if an individual is convicted of two or more CMTs at any time after becoming a permanent resident. The Attorney General issued an opinion in the Matter of Cristoval Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), in an attempt to establish a uniform national framework for determining whether a criminal conviction falls under the definition of a crime involving moral turpitude.The first step is a categorical analysis of whether the statute of conviction inherently involves only acts involving moral turpitude.If there is a “realistic probability, not a theoretical possibility” that the criminal statute includes conduct that does not involve moral turpitude, then the next step is a modified categorical analysis to determine whether the particular conduct by the individual involves moral turpitude. The Attorney General’s opinion also establishes guidelines for what documents and information may be used in determining whether the individual’s conduct involves moral turpitude.The Attorney General confirms that “[t]he sole purpose of the inquiry is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.” The assessment should therefore initially be based on the record of conviction, including documents such as the indictment, judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript.If the record of conviction does not sufficiently answer the question, then the adjudicator may now consider any additional evidence he deems necessary and appropriate. The Attorney General’s opinion and the analytical framework it establishes is beneficial to addressing the conflicts between the various courts and their decisions.However, it detrimentally affects individuals with criminal convictions as it opens the door to facts and documents not previously allowable.Given the complexities and the serious consequences, individuals in the midst of a criminal proceeding and those already with a criminal conviction must ensure proper legal counsel to equalize the fight for justice.
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