Criminal Defense of Immigrants
§ 17.11 F. Relevant Non-Crime Related Grounds
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There are 52 grounds of deportation. These grounds may be based on health issues, crimes, immigration violations, national security violations, past activities and associations (such as being a former Nazi), and so on. The most common crime-related grounds of deportation are discussed in § § 17.12-17.30, infra. Other crime-related grounds are discussed briefly in Appendix D, infra.
The grounds of deportation briefly mentioned in this section are not necessarily crime-related, but often become relevant to determining the best strategy when counsel has a client with a criminal history. This is not an exclusive list. Further research may be necessary if a client falls, or may fall, under one of these grounds. Even if the client falls under one of these grounds, there may be exceptions or waivers available.
 For a complete list of grounds of deportation, see Appendix D, infra.
USE OF SOCIAL SECURITY NUMBER
Flores-Figueroa v. United States, ___ U.S. ___, 129 S.Ct. 1886 (May 4, 2009) (use of fake SSN, in violation of 18 U.S.C. 1028A(a)(1), is not identity theft since the offense does not require, as an element, knowledge that the means of identification at issue belonged to another person).
DEPORTABILITY - RELEVENT NON-CRIME GROUNDS - WAIVER OF MISREPRESENTATION AT ADMISSION
Matter of Federiso, 24 I&N Dec. 661 (BIA 2008) (To be eligible for a waiver of removal under INA 237(a)(1)(H)(i), 8 U.S.C. 1227(a)(1)(H)(i), for making a misrepresentation in order to obtain admission to the United States, a noncitizen must establish a qualifying relationship to a living relative). http://www.usdoj.gov/eoir/vll/intdec/vol24/3627.pdf
IMMIGRATION OFFENSES " ILLEGAL REENTRY AFTER DEPORTATION " ELEMENTS " DEPORTATION
United States v. Harvey, 746 F.3d 87, 89-90 (2d Cir. Mar. 26, 2014) (per curiam) (federal conviction for illegal reentry after deportation affirmed, over objection that evidence of actual deportation was insufficient to sustain the conviction: a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, is sufficient proof that a defendant was, in fact, physically deported from the United States.); citing United States v. Garcia, 452 F.3d 36, 43"44 (1st Cir.2006); United States v. Bahena"Cardenas, 411 F.3d 1067, 1074"75 (9th Cir.2005).
Lower Courts of Second Circuit
EXPUNGEMENT - FALSE STATEMENT FOR IMMIGRATION BENEFIT
Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (the fact that applicant stated that he had not been arrested [after prior indication that he had] was not an intentional misstatement to the government where applicant could have believed that the expungement of the records of those arrests meant that he could state to the government that he had no longer been arrested). http://bibdaily.com/pdfs/Szpak%207-25-07.pdf
FALSE STATEMENTS - MATERIALITY - STATEMENTS ON I-9 FORM
United States v. Garcia-Ochoa, 607 F.3d 371 (4th Cir. Jun. 11, 2010) (statement on I-9 form that defendant was "citizen or national" of the United States was material for purposes of sustaining convictions under 18 U.S.C. 1001 and 1546(a), even though the defendant was eligible to work through TPS, since the I-9 form may be used for other purposes, including later investigation by ICE).
FALSE CLAIM TO CITIZENSHIP - APPLICATION FOR BUSINESS LOAN DID NOT CONSTITUTE AN IMMIGRATION PURPOSE
Hassan v. Holder, __ F.3d __ (6th Cir. May 11, 2010) (to establish false claim to citizenship, DHS must assert both that the claim was made, and that it was made for an immigration "purpose or benefit"; government failed to establish that applying for a loan was an immigration purpose or benefit to sustain the ground of removal, since it failed to establish how immigration status would affect application for a business loan).
POSSESSION OF UNSIGNED COUNTERFEIT SOCIAL SECURITY CARD
United States v. Pool-Chan, 453 F.3d 1092 (8th Cir. Jul. 18, 2006) (federal conviction of possession of counterfeit social security card violates 18 U.S.C. 1546(a), even if the card is not signed).
Lower Courts of Eighth Circuit
IMMIGRATION OFFENSES - SOCIAL SECURITY CARD IS NOT AN IDENTIFICATION CARD
United States v. Murillo, ___ F.Supp.2d ___, 2008 WL 697160 (N.D. Iowa Mar. 13, 2008) (a "social security card" does not constitute a "means of identification" within the meaning of 18 U.S.C. 1546(b) and 8 U.S.C. 1324a(b), so the court grants defendant's motion to dismiss Count 3); United States v. Tyson Foods, Inc., 258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security card" is not a "means of identification" within the meaning of 18 U.S.C. 1546(b), even if this creates a "loophole" or appears inconsistent with 18 U.S.C. 1546(a)).
RELIEF - FRAUD WAIVER
Federiso v. Holder, 605 F.3d 695 (9th Cir. May 19, 2010) (noncitizen whose mother is a USC continues to be "the son . . . of a citizen of the United States, for purposes of INA 237(a)(1)(H)(i)(I), even after his mothers death), interpreting Matter of Federiso, 24 I. & N. Dec. 661 (BIA 2008).
RELIEF - FRAUD WAIVER
Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. Feb. 3, 2010) (waiver of misrepresentations at time of admission, under INA 237(a)(1)(H) is only available where the applicant is not also inadmissible on other grounds (i.e., illegal re-entry) not arising out of the same temporal incident; this waiver may not be combined with other waivers to avoid this bar).
OVERVIEW - UNLAWFUL PRESENCE
Consolidation of Guidance Concerning Unlawful Presence May 6, 2009 AFM revision, USCIS. http://www.nafsa.org/_/Document/_/uscis_consolidated_guidance.pdf
IMMIGRATION OFFENSES " SOCIAL SECURITY CARD IS NOT AN IDENTIFICATION CARD
United States v. Murillo, ___ F.Supp.2d ___, 2008 WL 697160 (N.D. Iowa Mar. 13, 2008) (a "social security card" does not constitute a "means of identification" within the meaning of 18 U.S.C. 1546(b) and 8 U.S.C. 1324a(b)); United States v. Tyson Foods, Inc., 258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security card" is not a "means of identification" within the meaning of 18 U.S.C. 1546(b), even if this creates a "loophole" or appears inconsistent with 18 U.S.C. 1546(a)).
INADMISSIBILITY - DUI
DOS cable dated July 7, 2007: "This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence." http://travel.state.gov/visa/laws/telegrams/telegrams_3267.html
It is risky for a noncitizen who has voted unlawfully to apply for naturalization, unless they have a defense under McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), but proving something was not willful can be difficult. Cancellation of removal is possible to avoid the unlawful voting ground of deportation, but the immigration court might deny it in the exercise of discretion. Illegal voting is not only a Good Moral Character issue. While the passage of time may take the unlawful voting and the making of a false statement under 8 CFR 316.10(b)(2)(vi) outside the period for which good moral character must be shown to naturalize, the noncitizen is still subject to deportation under INA 237(a)(6), 8 U.S.C. 1227(a)(6). The trend in adjudications on false claims and illegal voting has gotten tougher in the last five years, and ICE rarely exercises prosecutorial discretion in favor of the noncitizen. Thanks to D. Jackson Chaney.