Advocating For Noncitizen Crime Survivors With Criminal Convictions ______________________ ASISTA Webinar Presented By: Ann Benson & Sonia Parras June

Advocating For Noncitizen Advocating For Noncitizen Crime Survivors With Crime Survivors With Criminal ConvictionsCriminal Convictions

____________________________________________

ASISTA Webinar Presented By:ASISTA Webinar Presented By:

Ann Benson & Sonia ParrasAnn Benson & Sonia Parras

June 13, 2011June 13, 2011This project is supported by Grant No. 2009TAAXK009 awarded by the United States Department of This project is supported by Grant No. 2009TAAXK009 awarded by the United States Department of Justice, Office on Violence Against Women. The opinions, findings, and recommendations expressed Justice, Office on Violence Against Women. The opinions, findings, and recommendations expressed

in this document are those of the author (s) and do not necessarily reflect the views of the United in this document are those of the author (s) and do not necessarily reflect the views of the United States Department of Justice, Office on Violence Against Women.States Department of Justice, Office on Violence Against Women.

Getting Help On Your CaseGetting Help On Your Case

The Washington Defender Association’s The Washington Defender Association’s Immigration Project is part of the ASISTA team Immigration Project is part of the ASISTA team and available to provide case analysis and and available to provide case analysis and problem solving to immigrant survivor advocates.problem solving to immigrant survivor advocates.

To contact WDA’s Immigration Project for To contact WDA’s Immigration Project for assistance email assistance email – Jonathan Moore at Jonathan Moore at [email protected]– Ann Benson at Ann Benson at [email protected]. .

You can also call us at 206-623-4321. You can also call us at 206-623-4321.

Goals of PresentationGoals of Presentation Provide an overview of primary crimes-Provide an overview of primary crimes-

related provisions of immigration lawrelated provisions of immigration law Outline key concepts in analyzing the Outline key concepts in analyzing the

immigration consequences of criminal immigration consequences of criminal convictionsconvictions

Apply these understandings assist Apply these understandings assist advocates to more effectively represent advocates to more effectively represent self-petitioners and U visa applicants with self-petitioners and U visa applicants with criminal issues. criminal issues.

Overview of PresentationOverview of Presentation Necessary toolsNecessary tools

Crime-related immigration provisionsCrime-related immigration provisions

Convictions & sentences under the INAConvictions & sentences under the INA

Overview of the categorical analysisOverview of the categorical analysis

Crimes & self-petitionsCrimes & self-petitions

Crimes and U visa applicationsCrimes and U visa applications

Necessary ToolsNecessary Tools

Immigration & Nationality Act;Immigration & Nationality Act;

Copy of the criminal statute at issue;Copy of the criminal statute at issue;

Copy of the criminal record of Copy of the criminal record of conviction;conviction;

Access to “crim-imm” resources Access to “crim-imm” resources

Necessary ToolsNecessary Tools For assistance in obtaining the necessary criminal For assistance in obtaining the necessary criminal

documents see: documents see: Step One In Representing Noncitizens With Step One In Representing Noncitizens With

Criminal History: Obtaining Relevant Information Criminal History: Obtaining Relevant Information About the Criminal CaseAbout the Criminal Case by Ann Benson, Directing by Ann Benson, Directing Attorney of Washington Defender Association’s Attorney of Washington Defender Association’s Immigration Project.Immigration Project.

Published in Vol. X, Issue X of the ASISTA Published in Vol. X, Issue X of the ASISTA newsletter and available at www.asista.orgnewsletter and available at www.asista.org

Necessary Tools Necessary Tools Crim-Imm resourcesCrim-Imm resources

Immigrantion Advocates NetworkImmigrantion Advocates Network– www.immigrationadvocates.org

Defending Immigrant’s In the Ninth CircuitDefending Immigrant’s In the Ninth Circuit, by , by Kathy Brady et.al, and other materials from:Kathy Brady et.al, and other materials from:– The Immigrant Legal Resource Center The Immigrant Legal Resource Center www.ilrc.org

Immigration Law and CrimesImmigration Law and Crimes, by Dan , by Dan Kesselbrenner and Lory RosenbergKesselbrenner and Lory Rosenberg– National Immigration Project of the National Lawyers National Immigration Project of the National Lawyers

Guild - www.nationalimmigraitonproject.org Guild - www.nationalimmigraitonproject.org

Primary Crime-Related Provisions of Primary Crime-Related Provisions of Immigration LawImmigration Law

Grounds of Inadmissibility Grounds of Inadmissibility

Grounds of DeportabilityGrounds of Deportability

Aggravated Felony DefinitionAggravated Felony Definition

Good Moral Character BarsGood Moral Character Bars

Grounds of Inadmissibility - 8 USCGrounds of Inadmissibility - 8 USC §§1182;INA 1182;INA §§212 Apply To:212 Apply To:

Any noncitizen seeking entry to USAny noncitizen seeking entry to US

Any noncitizen applying for lawful statusAny noncitizen applying for lawful status

When ICE /DHS seeks to remove/deport When ICE /DHS seeks to remove/deport Undocumented persons who illegally Undocumented persons who illegally entered USentered US

LPRs who apply for citizenshipLPRs who apply for citizenship

Crime-Related Grounds of Crime-Related Grounds of Inadmissibility – INA Inadmissibility – INA §§212 212

Crimes of Moral TurpitudeCrimes of Moral Turpitude– EXCEPTION: juvenile offenseEXCEPTION: juvenile offense

Commited before 18 yrs old and 5 years Commited before 18 yrs old and 5 years before admissionbefore admission

– EXCEPTION: One “petty” CIMT offenseEXCEPTION: One “petty” CIMT offenseMax possible sentence not > 1yr ; Max possible sentence not > 1yr ; actual sentence not > 6 months (including actual sentence not > 6 months (including

time suspended)time suspended)

Crime-Related Grounds of InadmissibilityCrime-Related Grounds of Inadmissibility

Controlled Substance ViolationsControlled Substance Violations– Possible waiver for first-time simple Possible waiver for first-time simple

possession of 30g or less marijuanapossession of 30g or less marijuana

2 or more convictions where aggregate 2 or more convictions where aggregate sentence is 5 years or moresentence is 5 years or more

Crime-Related Grounds of InadmissibilityCrime-Related Grounds of Inadmissibility

Conduct based grounds - Conduct based grounds - no conviction requiredno conviction required

Reason to believe involvement in drug Reason to believe involvement in drug trafficking, or received proceeds from trafficking, or received proceeds from family member who is/was;family member who is/was;

Determined to have physical/mental Determined to have physical/mental disorder that poses threat;disorder that poses threat;

Determined to be drug abuser;Determined to be drug abuser; Engaged in prostitution (but not johns).Engaged in prostitution (but not johns).

Crime-Related Grounds of InadmissibilityCrime-Related Grounds of InadmissibilityReview QuestionsReview Questions

James is undocumented but married to a U.S. citizen. Under what circumstances do the inadmissibility grounds apply to him?

How will a misdemeanor theft conviction impact him?

A DV assault conviction?A conviction for attempted possession

of cocaine?

Crime-Related Deportation Crime-Related Deportation Grounds (8 USC 1227) Apply To:Grounds (8 USC 1227) Apply To:

Apply to noncitizens Apply to noncitizens lawfully admittedlawfully admitted::– LPRs, CPRs, asylees and refugees;LPRs, CPRs, asylees and refugees;– Nonimmigrant visa holders (even if expired)Nonimmigrant visa holders (even if expired)

Legal grounds for removing people with Legal grounds for removing people with lawful status/who were lawfully admittedlawful status/who were lawfully admitted– Do not apply:Do not apply:

To undocumented people (cancellation exception)To undocumented people (cancellation exception) To persons applying for lawful statusTo persons applying for lawful status


One Crime Invovling Moral One Crime Invovling Moral Turpitude (CIMT)Turpitude (CIMT)

• Committed w/in 5 years of admissionCommitted w/in 5 years of admission• Carry maximum POSSIBLE sentence of Carry maximum POSSIBLE sentence of

1 year or more1 year or more Two CIMTsTwo CIMTs

– Regardless of when committed or Regardless of when committed or sentencesentence


Aggravated Felony (see next section)Aggravated Felony (see next section)

Controlled substance violationsControlled substance violations– Exception: single offense for simple Exception: single offense for simple

possession of possession of 30 grams30 grams or less or less

Firearms convictionsFirearms convictions

Ground of Deporation Ground of Deporation

Domestic Violence OffenseDomestic Violence Offense– After Sept. 30, 1996After Sept. 30, 1996– Must be crime of violence per 8 USC 16Must be crime of violence per 8 USC 16– Committed against personCommitted against person– w/whom D has qualifying relationshipw/whom D has qualifying relationship

Judicial “determination” of Judicial “determination” of Protection/no contact order violationProtection/no contact order violation– No conviction requiredNo conviction required

Grounds of DeportationGrounds of DeportationReview QuestionsReview Questions

Cindy is an LPR convicted of Cindy is an LPR convicted of possession of a C/S. Do the possession of a C/S. Do the grounds of deportation apply to grounds of deportation apply to her? Why? Which one? How could it her? Why? Which one? How could it be possible that she would not be be possible that she would not be deportable? deportable?

What if she is convicted of theft? What if she is convicted of theft? Under what circumstances would Under what circumstances would she be deportable? Not she be deportable? Not deportable? deportable?

Aggravated Felony Provision – Aggravated Felony Provision – 8 USC 1101(a)(438 USC 1101(a)(43

21 provisions under definition21 provisions under definition– incorportates hundreds of offensesincorportates hundreds of offenses

Triggers harshest consequencesTriggers harshest consequences– Mandatory detentionMandatory detention– Severe restrictions on due processSevere restrictions on due process– Ineligibility for many benefits/statusIneligibility for many benefits/status– Virtually certain removalVirtually certain removal

Aggravated FeloniesAggravated Felonies

State classification irrelevant – State classification irrelevant – misdemeanors can be AFmisdemeanors can be AF– E.g theft w/365 day sentenceE.g theft w/365 day sentence

Highest priority for removalHighest priority for removal Conviction requiredConviction required Increases sentence enhancements in Increases sentence enhancements in

illegal reentry prosecutions illegal reentry prosecutions

AF Definition Applies to ALL AF Definition Applies to ALL

AF IS NOT ground of inadmissibility, AF IS NOT ground of inadmissibility, but non-LPRs w/AF may be subject to but non-LPRs w/AF may be subject to “expedited removal” per §238(b)“expedited removal” per §238(b)

AF IS a ground of deportationAF IS a ground of deportation– Will trigger deportation for LPR/Refugee Will trigger deportation for LPR/Refugee

w/bars on most avenues for reliefw/bars on most avenues for relief

Aggravated Felonies – Aggravated Felonies – Selected ProvisionsSelected Provisions

Murder, rape, Sexual Abuse of a MinorMurder, rape, Sexual Abuse of a Minor

Drug trafficking Drug trafficking

Firearms offensesFirearms offenses

Crimes of violence with one year sentence Crimes of violence with one year sentence

Aggravated Felonies – Aggravated Felonies – Selected ProvisionsSelected Provisions

Theft, Possession of stolen property, Theft, Possession of stolen property, burglary with one year sentence imposed burglary with one year sentence imposed

Crimes of fraud or deceit where loss = Crimes of fraud or deceit where loss = $10k or more$10k or more

Failure to appear Failure to appear

Attempt or conspiracy to commit any Attempt or conspiracy to commit any listed offenselisted offense

Aggravated Felonies – Review QuestionsAggravated Felonies – Review Questions

Are the following convictions AF:Are the following convictions AF:– Misdemeanor assault w/365 day sentence?Misdemeanor assault w/365 day sentence?– Felony Assault with 6 month sentence?Felony Assault with 6 month sentence?– Theft with 365 day sentence where 364 days is Theft with 365 day sentence where 364 days is

suspended?suspended?– Burglary with 12 month sentence?Burglary with 12 month sentence?– DUI with 365 day sentence?DUI with 365 day sentence?– Vehicular Homicide with 3 year sentence?Vehicular Homicide with 3 year sentence?– Statutory rape (sex w/minor)Statutory rape (sex w/minor)– Possession of a controlled substance?Possession of a controlled substance?

Selected Crime-related Good Moral Selected Crime-related Good Moral Character Bars – INA Character Bars – INA §§101(f)101(f)

101(f)3 – incorporates the crime-101(f)3 – incorporates the crime-related grounds of inadmissibility at related grounds of inadmissibility at INA §212(2)INA §212(2)

101(f)(7) - Confined to jail for 180 101(f)(7) - Confined to jail for 180 days or more (aggregated)days or more (aggregated)

101(f)(8) - Aggravated felony 101(f)(8) - Aggravated felony convictionsconvictions

Convictions Under Convictions Under Immigration LawImmigration Law

INA 101(a)(48)(A)INA 101(a)(48)(A)

– Formal judgment of guilt by court, orFormal judgment of guilt by court, or– Deferred Adjudication = conviction if:Deferred Adjudication = conviction if:

Finding of guilt orFinding of guilt orAdmission of guilt orAdmission of guilt orAdmission of Facts SufficientAdmission of Facts Sufficient to warrant to warrant

finding of guilt andfinding of guilt and

– Judge orders punishment or restraintJudge orders punishment or restraint

Convictions Under Convictions Under Immigration LawImmigration Law

Deferred/Withheld AdjudicationsDeferred/Withheld Adjudications

– Often used in minor first-time offenses where Often used in minor first-time offenses where defendant agrees to comply w/conditions for defendant agrees to comply w/conditions for period and then case dismissed.period and then case dismissed.

– These are convictions under immigration lawThese are convictions under immigration law foreverforever where deferral requires admission of where deferral requires admission of guilt or stipulation to “facts sufficient”.guilt or stipulation to “facts sufficient”.

Even where successfully completed and dismissedEven where successfully completed and dismissed

Convictions under Convictions under Immigration Law Immigration Law

These do NOT constitute convictions:These do NOT constitute convictions:

Juvenile disposition (in juvenile court);Juvenile disposition (in juvenile court);

Conviction on direct appeal of right;Conviction on direct appeal of right;

InfractionsInfractions

Post Conviction ReliefPost Conviction Relief

PCR “vacations” work if record shows PCR “vacations” work if record shows underlying legal defect not just for underlying legal defect not just for immigration purposesimmigration purposes

Most state expungements do not eliminate Most state expungements do not eliminate conviction for immigration purposesconviction for immigration purposes

PCR to modify sentence (e.g. 365 to 364) PCR to modify sentence (e.g. 365 to 364) WILL be given effect (regardless of basis) WILL be given effect (regardless of basis)

Convictions – Key QuestionsConvictions – Key Questions

Does the immigration statute Does the immigration statute applicable in your case require a applicable in your case require a conviction?conviction?

If so, based on the criminal records, If so, based on the criminal records, does your client have a conviction?does your client have a conviction?

Sentence Definition – 8 USC Sentence Definition – 8 USC 1101(a)(48)(B)1101(a)(48)(B)

• Includes the period of incarceration or Includes the period of incarceration or confinement ordered by a court confinement ordered by a court regardlessregardless of any “suspension” of the of any “suspension” of the imposition or execution of the sentence in imposition or execution of the sentence in whole or in part.whole or in part.

• ExampleExample:365 days imposed with 364 days suspended = 365 :365 days imposed with 364 days suspended = 365

for immigration purposes.for immigration purposes.

SentencesSentences

• Certain misdemeanors with 365 day sentences Certain misdemeanors with 365 day sentences = aggravated felonies (e.g. theft and assault).= aggravated felonies (e.g. theft and assault).

• Exceptions: Exceptions:

• Certain Bars triggered by amount of time served Certain Bars triggered by amount of time served regardless of actual sentence imposedregardless of actual sentence imposed

• Example: GMC bar where 180 days servedExample: GMC bar where 180 days served

• Crimes Involving Moral Turpitude (CIMT)Crimes Involving Moral Turpitude (CIMT)• Inadmissibility Ground Petty Offense ExceptionInadmissibility Ground Petty Offense Exception• Deportation Ground – 1 CIMTDeportation Ground – 1 CIMT

Definition of SentenceDefinition of SentenceINA 101(a)(48)(B)INA 101(a)(48)(B)

““Deferred Sentences” do not count if no Deferred Sentences” do not count if no actual time was imposed on judgment actual time was imposed on judgment (check your state laws);(check your state laws);

Does not include any period of probation Does not include any period of probation or community custody UNLESS or community custody UNLESS imposed imposed as condition of probation or b/c of as condition of probation or b/c of probation violation probation violation

Sentences – Key QuestionsSentences – Key Questions

Determine what the actual “sentence Determine what the actual “sentence imposed” is (regardless of time imposed” is (regardless of time suspended).suspended).

Determine if possible crime-related Determine if possible crime-related immigration provisions are triggered immigration provisions are triggered due to the sentence.due to the sentence.

Convictions & Sentences – Review Convictions & Sentences – Review QuestionsQuestions

Angela is charged with misdemeanor Angela is charged with misdemeanor theft. Would the following be a theft. Would the following be a conviction? What are the sentencing conviction? What are the sentencing implications? What additional implications? What additional information would you want?information would you want?– 12 month deferred adjudication agreement?12 month deferred adjudication agreement?– Guilty plea with 12 month deferred sentence?Guilty plea with 12 month deferred sentence?– Plea w/365 day sentence? 364 days?Plea w/365 day sentence? 364 days?– Plea to attempted theft with 90 day sentence?Plea to attempted theft with 90 day sentence?

Analyzing The Impact Analyzing The Impact of A Convictionof A Conviction

Step 1: Existence of ConvictionStep 1: Existence of Conviction– Does not necessarily determine that it triggers Does not necessarily determine that it triggers

immigration penaltyimmigration penalty

Step 2: Identify possible crime-related Step 2: Identify possible crime-related immigration provisionsimmigration provisions

Step 3: Use categorical analysis to determine if Step 3: Use categorical analysis to determine if this conviction triggers the immigration penaltythis conviction triggers the immigration penalty

Step 4: If yes, identify possible waiversStep 4: If yes, identify possible waivers

Categorical AnalysisCategorical Analysis

Analytical Process sanctioned by US Analytical Process sanctioned by US Supreme Court to determine whether Supreme Court to determine whether elements required for conviction under elements required for conviction under state/federal criminal statute sufficiently state/federal criminal statute sufficiently match the elements of the relevant crime-match the elements of the relevant crime-related immigration provisionrelated immigration provision

– Example: Does this state misdemeanor assault Example: Does this state misdemeanor assault conviction constitute a “crime of violence” conviction constitute a “crime of violence” under the agg felony (or DV deportation under the agg felony (or DV deportation ground)?ground)?


The analysis does not focus on The analysis does not focus on conduct of defendant (what she did conduct of defendant (what she did or did not do) but on the elements or did not do) but on the elements required for conviction as set forth in required for conviction as set forth in the statute of conviction or, where the statute of conviction or, where applicable, the record of conviction. applicable, the record of conviction.

Categorical Analysis – Step OneCategorical Analysis – Step One

Step 1A: Identify elements of the Step 1A: Identify elements of the “generic definition” of the “generic definition” of the immigration provision at issueimmigration provision at issue

– Some defined by reference to a federal Some defined by reference to a federal criminal statute (e.g. “crime of violence” criminal statute (e.g. “crime of violence” is defined by reference to 18 USC 16)is defined by reference to 18 USC 16)

– If no reference to federal statute, then If no reference to federal statute, then defined by the courts/caselaw (e.g. defined by the courts/caselaw (e.g. crimes involving moral turpitude)crimes involving moral turpitude)


Step 1B: Compare the elements of Step 1B: Compare the elements of the “generic definition” to the the “generic definition” to the elements required for conviction elements required for conviction under the criminal statute of under the criminal statute of conviction.conviction.– Imperative to locate a copy of the Imperative to locate a copy of the

statute of convictionstatute of conviction


If elements of statute of conviction If elements of statute of conviction sufficiently match generic definition, sufficiently match generic definition, then the conviction “categorically” then the conviction “categorically” falls within the immigration provision falls within the immigration provision and triggers the penaltyand triggers the penalty

Key is to focus on the ELEMENTS Key is to focus on the ELEMENTS required for convictionrequired for conviction


Important to identify the elements Important to identify the elements required for conviction under the required for conviction under the criminal statutecriminal statute

– Look to criminal statute and caselaw Look to criminal statute and caselaw interpreting it to determine the interpreting it to determine the elements required for convictionelements required for conviction

Categorical Analysis Categorical Analysis If statute not categorical match, then If statute not categorical match, then

conviction does not fall within the conviction does not fall within the immigration provision. HOWEVER,immigration provision. HOWEVER,

May require STEP TWO analysis b/c crim May require STEP TWO analysis b/c crim statute is “overbroad” or “divisible” statute is “overbroad” or “divisible” because either:because either:– 1. it includes multiple offenses 1. it includes multiple offenses – 2. multiple ways to commit the offense2. multiple ways to commit the offense

Only some of which have elements that match Only some of which have elements that match the generic definitionthe generic definition

Categorical Analysis – Step TwoCategorical Analysis – Step Two

Step Two or “modified categorical analysis”Step Two or “modified categorical analysis”

Look to the “record of conviction” to determine Look to the “record of conviction” to determine the specific elements required for this convictionthe specific elements required for this conviction

Compare these specific elements to generic Compare these specific elements to generic definitiondefinition

If ROC doesn’t establish which part of criminal If ROC doesn’t establish which part of criminal statute was basis for conviction, then it doesn’t statute was basis for conviction, then it doesn’t trigger immigration provisiontrigger immigration provision

Documents Documents IncludedIncluded In the In the Record of ConvictionRecord of Conviction

Information in the charging papers (however, only Information in the charging papers (however, only the count that has been pled to or proved, not the count that has been pled to or proved, not original charges that have been amended or original charges that have been amended or dismissed charges); dismissed charges);

The judgment of conviction; The judgment of conviction; Jury instructions; Jury instructions; A signed guilty plea or a written plea agreement; A signed guilty plea or a written plea agreement; The transcript from the plea proceedings; and The transcript from the plea proceedings; and Sentence & transcript from sentencing hearing. Sentence & transcript from sentencing hearing.

Record of Conviction DOES NOT INCLUDERecord of Conviction DOES NOT INCLUDE::

Prosecutor’s remarks during the hearing; Prosecutor’s remarks during the hearing; Police reports;Police reports; The affidavit of probable cause;The affidavit of probable cause; Probation or “pre-sentence” reports; Probation or “pre-sentence” reports; Statements by the noncitizen outside of the Statements by the noncitizen outside of the

judgment and sentence transcript (e.g., to judgment and sentence transcript (e.g., to police or immigration authorities or the police or immigration authorities or the immigration judge);immigration judge);

A court docket summary prepared by A court docket summary prepared by clerical staff;clerical staff;

Information from a co-defendant’s case.Information from a co-defendant’s case.

CONT. CONT.

WARNING! The police report WARNING! The police report and/or affidavit of probable and/or affidavit of probable cause WILL BE INCLUDED in the cause WILL BE INCLUDED in the ROC if it is incorporated into the ROC if it is incorporated into the plea statement as the factual plea statement as the factual basis for the plea. basis for the plea.


Defendant’s plea statement most Defendant’s plea statement most important documentimportant document

Charging papers or judgment & Charging papers or judgment & sentence alone are insufficient to sentence alone are insufficient to establish elements of conviction establish elements of conviction where statute is overbroad or where statute is overbroad or divisibledivisible


It is imperative to consult with additional It is imperative to consult with additional resources and experienced practitionersresources and experienced practitioners– See Chapter 2 of See Chapter 2 of Defending Immigrants in the Defending Immigrants in the

Ninth CircuitNinth Circuit for detailed analysis for detailed analysis

Read BIA and circuit court decisions to Read BIA and circuit court decisions to understand how the BIA and your circuit understand how the BIA and your circuit view and apply the categorical analysisview and apply the categorical analysis


Examples:Examples:– 1. Washington State Felony Assault 31. Washington State Felony Assault 3rdrdStatute Statute

has 8 different prongs that are 8 separate has 8 different prongs that are 8 separate crimes, only some of which have elements that crimes, only some of which have elements that are CIMTsare CIMTs

– 2. Washington State Misdemeanor Assault 4 2. Washington State Misdemeanor Assault 4 defined by caselaw to include multiple ways to defined by caselaw to include multiple ways to commit the offense, only not all of which are commit the offense, only not all of which are crimes of violence under 18 USC 16 (as crimes of violence under 18 USC 16 (as required for agg felony or DV deportation).required for agg felony or DV deportation).

Crimes and VAWA Self-PetitionsCrimes and VAWA Self-Petitions

Always two steps:Always two steps:

– 1. Is applicant statutorily eligible?1. Is applicant statutorily eligible?

– 2. Does applicant warrant a favorable 2. Does applicant warrant a favorable exercise of discretion?exercise of discretion?

Crimes & VAWA Self-PetitionsCrimes & VAWA Self-Petitions

Does the conviction/conduct trigger Does the conviction/conduct trigger any GMC statutory bars?any GMC statutory bars?– 101(a)(3) – 212(a)(2)’s inadmissibility 101(a)(3) – 212(a)(2)’s inadmissibility

grounds?grounds?– 101(a)(7) – served 180 days in jail?101(a)(7) – served 180 days in jail?– 101(a)(8) – aggravated felony 101(a)(8) – aggravated felony

conviction?conviction?


Does categorical analysis provide Does categorical analysis provide basis to argue conviction does not basis to argue conviction does not trigger GMC bars? (especially trigger GMC bars? (especially unwaivable agg felony bar)unwaivable agg felony bar)

– Example: Can you use the categorical Example: Can you use the categorical analysis to argue that the assault analysis to argue that the assault conviction is not a crime of violence conviction is not a crime of violence and, thus, even though 365 day and, thus, even though 365 day sentence, NOT an agg felony?sentence, NOT an agg felony?


§204(a)(1)(C) Waiver for GMC Bars§204(a)(1)(C) Waiver for GMC Bars

– Is a waiver available for this conviction Is a waiver available for this conviction for purposes of determining for purposes of determining inadmissibility or deportability?inadmissibility or deportability?

– Is the conduct/conviction connected to Is the conduct/conviction connected to the abuse?the abuse?

Crimes & VAWA Self-PetitionsCrimes & VAWA Self-Petitions Consult CIS GMC Memo – 1/19/05Consult CIS GMC Memo – 1/19/05

– Memo advises reference to 8 CFR 212.7(d) Memo advises reference to 8 CFR 212.7(d) where conviction is for violent or dangerous where conviction is for violent or dangerous offenseoffense

– Memo asserts any aggravated felony is per se Memo asserts any aggravated felony is per se bar to GMC b/c no waiver availablebar to GMC b/c no waiver available

BUT for those convictions that are agg felonies AND BUT for those convictions that are agg felonies AND CIMT (e.g. theft conviction w/365 day sentence) CIMT (e.g. theft conviction w/365 day sentence) argue that as CIMT, offense is waivable per 212(h)argue that as CIMT, offense is waivable per 212(h)


In addition to establishing statutory In addition to establishing statutory eligibility for GMC applicant must eligibility for GMC applicant must also establish that she warrants also establish that she warrants favorable exercise of discretion.favorable exercise of discretion.

Crimes & VAWA AdjustmentCrimes & VAWA Adjustment

Does conviction/conduct trigger any Does conviction/conduct trigger any statutory grounds of inadmissibility statutory grounds of inadmissibility under §212(a)(2)?under §212(a)(2)?

– Can you use categorical analysis to Can you use categorical analysis to argue that it does not?argue that it does not?

– If not, can she qualify for §212(h)(1)(C) If not, can she qualify for §212(h)(1)(C) waiver?waiver?

Crimes & VAWA AdjustmentCrimes & VAWA Adjustment

§212(h)(1)(C) – §212(h)(1)(C) – – DOES WAIVE:DOES WAIVE:

CIMT offensesCIMT offenses First time simple possession < 30g marijuanaFirst time simple possession < 30g marijuana Prostitution (note limitations)Prostitution (note limitations)

– DOES NOT WAIVE:DOES NOT WAIVE: Any other type of drug offense (no waivers)Any other type of drug offense (no waivers) 8 CFR 2127(d) limitation on exercise of discretion 8 CFR 2127(d) limitation on exercise of discretion

where violent or dangerous offensewhere violent or dangerous offense

Crimes & U Visa ApplicantsCrimes & U Visa Applicants

Always two steps:Always two steps:

– 1. Is applicant statutorily eligible?1. Is applicant statutorily eligible?

– 2. Does applicant warrant a favorable 2. Does applicant warrant a favorable exercise of discretion?exercise of discretion?


Does conviction/conduct trigger any Does conviction/conduct trigger any crime-related bars under §212(a)(2)’s crime-related bars under §212(a)(2)’s grounds of inadmissibility?grounds of inadmissibility?

If so, is she eligible for 212(h) If so, is she eligible for 212(h) waiver?waiver?


If not, does she qualify for 212(d)(14) If not, does she qualify for 212(d)(14) waiver?waiver?

– Gives AG discretion to waive any ground Gives AG discretion to waive any ground of inadmissibility under 212(a) of inadmissibility under 212(a) including crimes grounds at (a)(2)including crimes grounds at (a)(2)Exception: nazi persecutors and torturersException: nazi persecutors and torturers