Criminal Defense of Immigrants


§ 7.24 2. Minor Non-Criminal Violations

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Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).

Counsel can argue that Matter of Eslamizar applies to civil violations for possession of marijuana as well as to crimes of moral turpitude. A civil violation arguably should not constitute a ground of inadmissibility because it would not be a crime in the jurisdiction where the conduct occurred. 22 CFR 40.21; Matter of K,7 I. & N. Dec. 594 (BIA 1957); Pazcoguin v. Radcliffe, 922 F.3d 1209 (9th Cir. 2002). The regulation only imposes this requirement for CMTs, but judicial decisions appear to extend it to other inadmissibility grounds as well. The government could argue the language of 237(a)(2)(B)(i) specifies a violation of any "law or regulation" relating to a controlled substance means it need not be a crime. However, regulations can create crimes, so counsel can still argue that the offense must still be considered a "crime" in order to trigger removability. Thanks to Jonathan Moore.

Third Circuit

Castillo v. Attorney General, 729 F.3d 296 (No. 12-2073) (3d Cir. Sept. 3, 2013) (New Jersey conviction of shoplifting, in violation of N.J. Stat. Ann. 2C:20-11, a disorderly persons offense, could not be considered as a second conviction of a crime involving moral turpitude, since offense was a 'petty offense', rather than a crime, within the meaning of the state constitution, and did not afford the accused constitutional safeguards normally attendant to a criminal proceeding; because (1) disorderly persons offenses were petty offenses, not crimes within the meaning of the New Jersey Constitution; (2) there was no right to a trial by jury or an indictment by a grand jury; (3) a conviction did not give rise to any disability or legal disadvantage; and (4) in carrying its burden of proving the offense, the state is aided by a presumption; the court granted the petition for review and remanded the matter to secure the benefit of the BIA's understanding of the phrase 'convicted of a crime' and to consider the broader question initially asked, i.e., whether Castillo was 'convicted of a crime' under INA 101(a)(48)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii)).

Ninth Circuit

Afzal v. Gonzales, 203 Fed.Appx. 830, 2006 WL 3054609 (9th Cir. October 27, 2006) (unpublished) (California infraction of petty theft, in violation of Penal Code 490.1, constituted a conviction for immigration purposes because California criminal law considers it a conviction of a crime). This decision does not even mention the governing immigration law on this subject, Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(holding that Oregon violation did not constitute a conviction of a crime, because there was no custody possible for the offense, no right to counsel or jury trial, and no requirement of proof beyond a reasonable doubt). The unpublished Afzal decisions discussion is as follows: The Immigration and Nationality Act (INA) defines the term conviction as a formal judgment of guilt of the alien entered by a court or ... where ... the alien has entered a plea of guilty or nolo contendere ... and ... the judge has ordered some form of punishment, penalty, *832 or restraint. 8 U.S.C. 1101(a)(48)(A). Under California law [c]rimes and public offenses include: [f]elonies; [m]isdemeanors; and [i]nfractions. Cal.Penal Code 16; see also People v. Statum, 28 Cal.4th 682, 122 Cal.Rptr.2d 572, 50 P.3d 355, 365 (2002) (From its earliest days, this court has distinguished between the nature or identity of a crime ... and the class or grade o[f] the crime as being a felony, misdemeanor, or infraction.) (Kennard, J., dissenting). Afzal pleaded nolo contendere to petty theft under California Penal Code 484 charged as an infraction pursuant to Penal Code 490.1. The California court entered a formal judgment of guilt and imposed punishment in the form of a fine. Afzal's unsupported assertion that an infraction is not a crime notwithstanding, there is sufficient authority to establish that he was convicted of a crime within the plain meaning of 8 U.S.C. 1101(a)(48)(A) and California Penal Code 16. (Afzal v. Gonzales, 203 Fed.Appx. 830, 831-832, 2006 WL 3054609 (9th Cir. October 27, 2006).) The panel did not consider that the conviction must be of a crime under immigration law. Its discussion of that point was mistakenly based on California law. However, the question whether a conviction is a conviction of a crime under immigration law is a question of uniform federal immigration law, not state law. The BIA in Eslamizar concluded that a very similar Oregon disposition was not a conviction of a crime, because it did not result from a criminal procedure: there was no jail possible, no jury trial, no right to appointed counsel, and no right to proof beyond a reasonable doubt. A California infraction shares the first three characteristics of the Oregon violation held not to be a crime in Eslamizar. This should be held sufficient to conclude that a California infraction does not constitute a conviction of a crime, and is therefore not a conviction of a crime of moral turpitude.