Immigration and Criminal Law
For individuals who are not United States citizens, resolving a criminal case requires understanding all of the potential immigration consequences. For instance, certain convictions might cause an individual to become inadmissible for lawful permanent residence in the United States or even subject an individual to deportation. Contact an attorney at the Sammis Law Firm to discuss any arrest or prosecution in the Tampa Bay area involving an individual who is not a United States citizen.
The Immigration and Nationality Act describes several crimes and types of criminal conduct in terms of which aliens are deportable and which aliens are inadmissible. Although, being deportable under INA 237 or inadmissible under INA 212 leads to the same result of being subject to removal (deportation) proceedings as provided by INA Section 240. In fact, 8 U.S.C. Section 1227(a)(2)(A)(1) provides that "Any alien...[i]nadmissible at time of entry or of adjustment of status...is within one or more of the ...classes of deportable aliens).
Certain convictions might cause an individual to be inadmissible for lawful permanent residence in the United States under INA Section 212(a)(2) and 8 U.S.C. Section 1182(a)(2) which provides for certain types of aliens who are ineligible for admission or visas.
Many individuals do not realize the consequence of the conviction until after the individual files a Form I-485 Application to Register Permanent Residence of Adjust Status with the United States Citizenship and Immigration Services Bureau of the United States Department of Homeland Security. The Form I-485 allows for an immigration visa to be immediately available at the time of the application subject to the individual being admissible to the United States for permanent residence.
However, if the individual has a certain type of criminal conviction, then the Form I-495 Application to Register Permanent Residence or Adjust Status will be denied because the individual is found to be inadmissible to the United States for permanent residence. See Section 212(a)(2) and 8 U.S.C. Section 1182(a)(2).
With respect to immigration consequences to an alien the Immigration and Nationality Act defines the term "conviction" under INA Section 101(a)(48)(A) and 8 U.S.C. Section 1101(a)(48)(A). In this context, the term "conviction" includes either a formal finding or judgment of guilt entered by the trial court or any case in which adjudication was withheld under the following circumstances:
- the alien entered a plea of no contest, nolo contendere or guilty; the alien has admitted sufficient facts to warrant a finding of guilt; or a jury or judge found the alien guilty of the offense; and
- the court has ordered some penalty, form of punishment, or restraint on the alien's liberty to be imposed.
The sentence of term of imprisonment includes the period of confinement or incarceration announced at sentencing by the court regardless of whether any part of the sentence was suspended. Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(an alien entered a "no contest" or nolo contendere plea to a drug possession crime under Florida law and even though the alien received a withhold of adjudication, the fact that court costs were assessed caused a "conviction" because the imposition of court costs was a form of punishment under federal law).
Immigration consequences of drug convictions - 120g marijuana is not a "small amount"
In Catwell v. Attorney Gen. Of The United States (3rd Cir., October 13, 2010) Docket No.: 08-4208 the Third Circuit the court found that 120g of marijuana was not a "small amount."
In that case the petitioner appealed the BIA's decision to reverse the IJ's grant of LPR cancellation of removal. The BIA concluded that a state law conviction for possession witn intent to distribute 120.5 grams of cannabis amounted to an "aggravated felony" as defined by 8 U.S.C. Section 1101(a)(43)(B) which rendered Catwell ineligible for cancellation of removal. Additionally, the BIA decided that Catwell's conviction did not qualify for any exceptions found in 21 U.S.C. Section 841(b)(4).
On appeal, the Third Circuit held that possesion of 120 grams of marijuana for personal use is more than a "small amount" as contemplated by the CSA under 21 U.S.C. § 841(b)(4). In doing so the
Furthermore the court held that the PA Criminal Complaint to which the Defendant pleaded guilty or nolo contendere is appropriate for consideration under the "modified categorical approach."
Outcome: In interpreting the statutory exception’s language “small amount of marijuana” the Court concluded that the legislative intent was for the exception to apply to the sharing of small amounts of marijuana in social situations. See United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008); United States v. Outen, 286 F.3d 622, 637 (2d Cir. 2002); see also 116 Cong. Rec. 35,555 (1970). The Court even cited Senators’ comments in the congressional record which discussed an exception applying to only a couple grams of marijuana. Also the court looked at the existance of the the “30 grams of less” marijuana exception to removability under 8 U.S.C. § 1227(a)(2)(B)(i). Thus the court affirmed the BIA’s decision that the petitioner was not eligible for LPR Cancellation of removal because 120.5 grams of marijuana was not a “small amount of marijuana” for purposes of the exception found in 21 U.S.C. § 841(b)(4).
- Type of Criminal Convictions Resulting in Immigration Consequences
- Conviction for Crimes of Moral Turpitude
- Convictions for Crimes of Violence with Term of Imprisonment Imposed is At Least One Year
- Convictions for Illicit Trafficking in a Controlled Substance
- Aggravated Felonies