Safe Havens

(C)  Date the Offense Occurred.  At times, offenses occur over a range of different dates.  For example, a welfare fraud offense may occur through underreporting of income over a period of years.  It may be possible to select an offense of conviction as occurring on a certain date, as opposed to a different date, by picking a count relating to a certain undeserved welfare check to which to enter a plea.  The same is true of many conspiracy offenses, which are often alleged to have occurred over a span of time.  At times, the immigration consequences of a conviction can vary depending on when the offense occurred. 

            For example, one conviction of a crime of moral turpitude can create a ground of deportation if the offense occurred within five years of the noncitizen’s admission into the United States.[9]  If the span of possible dates of conviction includes dates both before and after the five-year point, counsel can select a date after the five-year point and thus avoid creating a ground of deportation. 

            As another example, the date of the domestic violence protection order violation[10] must occur after September 30, 1996, in order to trigger deportation.[11]  If counsel chose a date of violation prior to the effective date of the statute, s/he could have averted this ground of deportability.

            The date of the offense can also be relevant to eligibility for relief from removal in immigration court — a topic that is generally not covered in this book.  For example, the seven-year period of lawful residence in the United States necessary to qualify for cancellation of removal for Lawful Permanent Residents terminates on the date certain offenses are committed.[12]  Eligibility could be preserved by arranging that the date on which the offense of conviction occurred was after the seven-year point had passed.

            It is therefore important to be alert to the immigration consequences of arranging the date of the offense on a specific date within a range of possible dates.

[9] INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I). 

[10] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

[11] IIRAIRA § 350(b); Matter of Rodriguez-Tejedor, 23 I. & N. Dec. 153, n.13 (BIA July 24, 2001) (“IIRAIRA § 350(b), 110 Stat. at 3009-640 (amendment adding domestic violence and stalking as grounds for deportation “shall apply to convictions, or violations of court orders, occurring after the date” of enactment) . . . .”).

[12] INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).