Bar Bulletin

September, 2004

 Bar Bulletin Focus

Immigration Law    

Creative Sentencing for the Immigrant Defendant
~A checklist of considerations for criminal defense attorneys representing immigrant clients~

By Eugenia Korsak Ordynsky

Criminal convictions for non-US citizens can mean the end of their American dream; even Maryland’s Probation Before Judgment is considered a conviction for immigration purposes. But not all offenses are deportable offenses, and not all convictions lead to deportation court. When can a criminal lawyer advise a client to accept a plea bargain and when is a full trial advisable?

First, determine if the client will be classified as an aggravated felon under immigration law. This classification effectively bars the alien from any form of relief from the accusation that he or she is deportable, as defined by the Immigration and Nationality Act §101(a)(43). It is with the classification of aggravated felon that sentencing can sometimes be particularly important. Creative sentences are irrelevant to crimes such as murder, rape, money laundering, racketeering or prostitution.

Creative sentencing can help avoid classification as an aggravated felon in crimes such as theft, gambling, bribery and even crimes of violence. However, some are still considered crimes of moral turpitude and therefore could still lead to charges of inadmissibility or deportability.

Once the client has managed to avoid the aggravated felony label, determine whether or not the crime is one of moral turpitude. The statutes, however, do not clearly define moral turpitude. Theft, for example, is considered a crime of moral turpitude and is also on the list for aggravated felonies. Therefore, the client might avoid being labeled an aggravated felon by convincing a judge to hand down a sentence of 360 days. However, it should be noted that this does little to save the client from deportation if the crime was committed within five years of admission to the United States and statutorily has a potential sentence of incarceration of up to one year (which is how most misdemeanor theft statutes are worded).

If the client has been here for more than five years after being admitted, make sure that the client has no other convictions, as convictions for two crimes of moral turpitude render a client deportable. Moreover, even if the client has no previous convictions, a conviction for a crime of moral turpitude committed more than five years after admission makes him inadmissible if he decides to travel abroad.

Moral turpitude crimes are malum in se, not malum prohibitum. Therefore, statutory construction is the most important element of the analysis. The law under which the alien is convicted, rather than the facts of the case, determines whether or not there is a crime of moral turpitude. A charging document is referred to only if the statute under which the alien was charged has two parts, one of which is not a crime of moral turpitude.

Finally, look for crimes that, while neither aggravated felonies nor necessarily crimes of moral turpitude, still make a person deportable upon conviction. Sentencing, for example, is irrelevant for a crime of domestic violence; a conviction of domestic violence, stalking, violating a protective order, child abuse, neglect or abandonment renders a non-citizen deportable at any time. Likewise, a conviction for any firearm offenses makes someone deportable.

The checklist below will help any criminal attorney spot the appropriate issues.

1) Is the client here in legal status? (If not, any conviction will lead to deportation hearings if on no other charge than being here illegally.)

2) If the client is in legal status, is he being accused of a crime which, if convicted, would make him an aggravated felon?

3) If yes, is it a crime in which a plea bargain with sentencing recommendation might help avoid the aggravated felon category?

4) Is the client being accused of a crime of moral turpitude?

5) If yes, did he commit the crime within five years of being admitted to the U.S., and does the statute state that the possible sentence can be up to and including one year?

6) If it is a crime of moral turpitude but was committed after the client has been here five years (legally), is he willing to never travel outside the U.S.?

7) If it is a crime of moral turpitude but was committed after the client has been here five years (legally), will it be the client’s second conviction for a crime of moral turpitude?

8) Finally, is it a crime in which a conviction will make the client deportable regardless of when it occurred or what sentence is given because it is either a domestic violence crime or firearm offense?


Eugenia Korsak Ordynsky has been practicing immigration law for more than 10 years in the Baltimore and Washington area. Her offices are located in downtown Baltimore.

 

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Publications : Bar Bulletin: September, 2004

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