Criminal Defense of Immigrants

 

If a juvenile is bound over to adult court, and is there convicted of a crime involving moral turpitude, that CMT conviction normally creates a ground of inadmissibility.[225]  See § § 20.25-20.31, infra. 

 

                There is, however, an exception to this ground of inadmissibility called the “youthful offender” exception, under which a person will not be found inadmissible if s/he committed only one offense involving moral turpitude, while under the age of eighteen, was transferred from juvenile to adult court, and the commission of the offense and the release from any resulting imprisonment occurred over five years before the current application.[226]   If a person comes within this exception to inadmissibility, s/he is simply not inadmissible.  See § 20.30, infra.  It is not necessary to apply for a waiver; the immigration authorities have no discretion to exclude the person on the basis of the single CMT conviction.[227]

 

                While the single scheme of criminal misconduct rule, applicable by statute to the single CMT conviction ground of deportation, does not expressly apply to this ground of inadmissibility, and a person convicted of two CMTs does not fall under this exception,[228] the courts have regarded more than one conviction of related offenses committed on the same occasion to be a single CMT for this purpose.[229]

               

                The Youthful Offender Exception to CMT inadmissibility generally does not apply to the single CMT ground of deportation.[230]  The Youthful Offender Exception will apply retroactively in removal proceedings to validate an improper re-entry, because the noncitizen would not be inadmissible if s/he was currently applying for admission.[231]  This Exception also applies to a noncitizen who seeks an advance ruling of admissibility in adjustment of status proceedings.

                A number of rules established with respect to the analogous Petty Offense Exception to CMT inadmissibility[232] should also logically apply to the Youthful Offender Exception to CMT inadmissibility, since both exceptions share the same “single offense” requirement.  See § 20.29, infra.  The BIA has determined that ‘‘the commission of another offense that is not a crime involving moral turpitude [does not render] the ‘petty offense’ exception inapplicable.’’[233]  The BIA  also held that a noncitizen is not ineligible for cancellation of removal for non-LPRs[234] or barred from establishing Good Moral Character[235] if a single CMT conviction falls within the Petty Offense Exception to inadmissibility,[236] and the same rule should logically apply to the Youthful Offender Exception as well.

                The BIA has also held that the petty offense exception applies to deportation cases, as well as exclusion cases, and prevents a noncitizen from being deportable on account of a single conviction, classifiable as a petty offense, whether it was committed in the United States[237] or in a foreign jurisdiction.[238]  It applies, however, only to excuse the “inadmissible at entry” ground of deportation, or to allow relief from deportation where the discretionary relief sought (e.g., adjustment of status) depends on the applicant’s admissibility to the United States.[239]

 

                Because the commission of a second CMT offense disqualifies the noncitizen from eligibility for the Petty Offense Exception, a person is disqualified from this exception, where a first conviction has been expunged under state law upon completion of probation.[240]  The same is true where a person was convicted of two offenses committed one week apart.[241] The immigration authorities may consider the underlying facts of a case to determine whether a second CMT had been committed, even in the absence of a second conviction.[242]

 

                Regulations permit admission of a noncitizen who was convicted of one crime of moral turpitude while under 15 years of age, even if it does not otherwise qualify for the Youthful Offender Exception to inadmissibility. [243]

This Youthful Offender Exception exception provides no limit on the seriousness of the offense or the sentence, so technically any qualifying offense is considered within the exception.

 

In addition, the State Department will not find a person to be inadmissible for a moral turpitude offense committed (a) while the person was under fifteen or (b) between the person’s fifteenth and eighteenth birthdays, unless the person was convicted as an adult for a felony involving violence, as defined in 18 U.S.C. § § 1 and 16.  If the person committed two crimes involving moral turpitude between the ages of 15 and 18, however, s/he will be inadmissible.[244] 

 

[225] INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i).

[226] INA § 212(a)(2)(A)(ii)(I), 8 U.S.C. § 1182(a)(2)(A)(ii)(I); 8 C.F.R. § 40.21(a)(2).

[227] Matter of H, 6 I. & N. Dec. 738 (BIA 1955); Matter of Jensen, 10 I. & N. Dec. 747 (BIA 1964) (conviction for forgery and uttering was for single offense).

[228] 22 C.F.R. § 40.21(a)(3); Matter of A, 5 I. & N. Dec. 639 (BIA 1954). A noncitizen convicted of multiple criminal offenses may, however, be eligible for a waiver of inadmissibility under other sections of the Act. See, e.g., INA § 212(h), see § 24.29, infra.

[229] Matter of Jensen, 10 I. & N. Dec. 747 (BIA 1964) (conviction for forgery and uttering was for single offense).

[230] Circella v. Sahli, 216 F.2d 33, 39 (7th Cir. 1954) (‘‘If the Congress had intended that (noncitizens) who had committed crimes when they were minors should be treated differently as to deportation these Acts would have so provided.’’).

[231] Matter of R, 5 I. & N. Dec. 463 (BIA 1953).

[232] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182 (a)(2)(A)(ii)(II).

[233] Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA 2003).

[234] INA § 240A(b)(1)(B), 8 U.S.C. § 1229b(b)(1)(B); INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).

[235] INA § 101(f)(3), 8 U.S.C. § 1101(f)(3).  See Matter of M, 7 I. & N. Dec. 147 (BIA 1956) (Good Moral Character not precluded if conviction falls within Petty Offense Exception to inadmissibility).

[236] Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA 2003).

[237] Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988); Matter of MC, 9 I. & N. Dec. 280 (BIA 1961); Matter of M, 7 I. & N. Dec. 147 (BIA 1956) (Good Moral Character not precluded); Matter of C, 6 I. & N. Dec. 331 (BIA 1954).

[238] Matter of H, 6 I. & N. Dec. 435 (BIA 1954); Matter of Katsanis, 14 I. & N. Dec. 266 (BIA 1973) (Greece).

[239] Matter of D, 8 I. & N. Dec. 658 (BIA 1960). Cf. Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir. 1961); Matter of MC, 9 I. & N. Dec. 280 (BIA 1961).

[240] Matter of SR, 7 I. & N. Dec. 495 (BIA 1957).

[241] Matter of FG, 8 I. & N. Dec. 447 (BIA 1959).

[242] Matter of DeM, 9 I. & N. Dec. 218 (BIA 1961) (perjury not committed).

[243] 22 C.F.R. § 40.21(a)(2) (“(a) Crimes involving moral turpitude -- (1) Acts must constitute a crime under criminal law of jurisdiction where they occurred. A Consular Officer may make a finding of ineligibility under INA § 212(a)(2)(A)(i)(I) based upon an alien’s admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, only if the acts constitute a crime under the criminal law of the jurisdiction where they occurred. However, a Consular Officer must base a determination that a crime involves moral turpitude upon the moral standards generally prevailing in the United States. (2) Conviction for crime committed under age 18.  (i) An alien will not be ineligible to receive a visa under INA § 212(a)(2)(A)(i)(I) by reason of any offense committed: (A) Prior to the alien’s fifteenth birthday, or (B) Between the alien’s fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code. (ii) An alien tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, will be subject to the provisions of INA § 212(a)(2)(A)(i)(I) regardless of whether at the time of conviction juvenile courts existed within the convicting jurisdiction.”).

[244] 22 C.F.R. § 40.12(a)(2), (3).