Fennemore Craig, P.C.
Crimes & Punishment:
How do Misdemeanors Affect
Immigration Status?
Presented by:
Matt Martinez
Attorney
Fennemore Craig, P.C.
Phoenix, AZ
(602) 916-5446
mmartinez@fclaw.com
Kathy Bunch
Paralegal
Fennemore Craig, P.C.
Phoenix, AZ
(602) 916-5176
kbunch@fclaw.com
Debi Parris
International Student
Coordinator
Grand Canyon University
(602) 639-6351
deborah.parris@gcu.edu
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Common On Campus Crimes
2010
Alcohol Related
•Public Intoxication
•Minor in Possession
•Public Urination
•Disorderly Conduct
3,341
Controlled Substance
•Possession of Marijuana or Drug Paraphernalia
2,513
Burglary
•Breaking and Entering
1,055
Car Theft
209
Sex Offenses
•Rape
140
Aggravated Assault
132
Robbery
74
Weapons
37
Source: The Campus Safety and Security Data Analysis Cutting Tool
http://www.ope.ed.gov
Fennemore Craig, P.C.
Offense/Arrest
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•Deportable: student has been legally admitted to U.S. after having
been inspected at an official port of entry but has violated conditions
of admission.
•Inadmissible: student who is seeking to be admitted to the U.S. but
is ineligible because of criminal convictions, medical reasons,
unauthorized employment or status violations.
Fennemore Craig, P.C.
Deportable or Inadmissible?
• Applies after travel abroad, when applying for a new visa abroad, and
when applying for a green card.
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Common Grounds of Deportability
for International Students
•CIMT committed within 5 years of date of admission for which a sentence of 1 year
or longer may be imposed
•Two CIMTs not arising out of a single scheme
•Conviction relating to controlled substance (except for single offense of simple
possession of 30 grams or less of marijuana)
•Conviction relating to firearms
•Domestic violence; stalking; or child abuse, neglect or abandonment
•False claim to citizenship*
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•Aggravated Felony
•Unauthorized employment
•Overstay of F-1 visa
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*Based on conduct - does not require a formal conviction.
Common Grounds of Inadmissibility
For International Students
•Convicted of, or formally admits having committed, a CIMT (except for single
offense with potential sentence of 365 days or less, and actual sentence of 180
days or less)*
•Violation of any law relating to a controlled substance*
•Reason to believe drug trafficker or assisting drug trafficker*
•False Claim to U.S. citizenship*
•Unauthorized employment**
•Overstay of F-1 visa**
Fennemore Craig, P.C.
•Two or more convictions with aggregate sentence of 5 years
*Based on conduct - does not require a formal conviction.
**If the individual does not leave the U.S. after violation, may still be admissible if
married to USC.
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Deportability: Crimes Involving Moral Turpitude
CIMT: “inherently base, vile or depraved,”
“reprehensible,” or conduct that violates norms and
shocks the public conscience.
Fennemore Craig, P.C.
CIMT committed within 5 years of date of admission for
which a sentence of 1 year or longer may be imposed*
*Note that there is a Petty Offense Exception for Inadmissibility
(single CIMT where maximum potential sentence is 365 days or less
and actual sentence is 180 days or less)
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Includes:
•A minimum of intentional or reckless conduct
•Offenses with an element of fraud
•DUI with actual knowledge that license was suspended
•Theft with intent to permanently deprive
•Most aggravated assaults (deadly weapon, intent to cause great bodily injury)
•Sex offense with element of assault, abuse or lewdness
Does not include:
•A single CIMT with a maximum potential sentence of less than one year
•A single CIMT committed over 5 years after admission
•A crime requiring only negligence (as opposed to intent or recklessness)
•Simple DUIs
•Theft with intent to temporarily deprive (joy ride)
•Simple assault/battery
•DV assault/battery committed with offensive touching
Fennemore Craig, P.C.
Deportability: Crimes Involving Moral Turpitude
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Example: CIMT
Deportability
David is an athlete who lives in an apartment on
campus. Some teammates who are minors
came to his apartment with alcohol and started
drinking. Campus security came and then the
police were called. He received a citation for
allowing minors to drink on private property.
Potential grounds for deportability:
•CIMT: no
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
•Controlled substance: no
Fennemore Craig, P.C.
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Potential grounds for inadmissibility:
•same
Result: no immigration consequences.
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Example: CIMT
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Stephen was away from campus at a
club, became drunk, and while alone
relieved himself in the shadow of a
building. Police cited him for urinating in
public. He went to court, pled guilty and
paid fine.
Potential grounds for deportability:
•CIMT: no
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
•Controlled substance: no
Fennemore Craig, P.C.
Deportability
Potential grounds for inadmissibility:
•same
Result: no immigration consequences..
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Example: CIMT
Deportability
Jennifer celebrated after taking her last final and had a few
drinks at a bar close to campus. She left the bar and started
to drive home when she was arrested for a simple DUI.
Potential grounds for deportability:
•CIMT: not unless there is an aggravating factor, such as
driving on a suspended license. A DUI is not a CIMT.
Potential grounds for inadmissibility:
•Same
Fennemore Craig, P.C.
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Result: probably no immediate immigration consequences,
but note that while this will not make her deportable nor
inadmissible, DHS has broad discretion to deny entry on a
visa for any reason, and this may be a problem when
returning from travel abroad.
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•Controlled Substance: if she was under the influence of
drugs, as opposed to alcohol, then maybe
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
Example: CIMT
Deportability
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
Vladmir wrote a bad check for $150. He was charged with a
misdemeanor Attempted Fraudulent Use of Check which
carries a potential one year sentence, but he ended up
receiving probation.
Potential grounds for deportability:
•CIMT: likely, as it contains element of fraud and has a
potential sentence of one year
•Aggravated felony (fraud): no, because it did not involve a
loss of $10,000 or more
•Aggravated felony (forgery): no, because he received
probation and won’t serve actual sentence of one year
Fennemore Craig, P.C.
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Potential grounds for inadmissibility:
•CIMT: yes, but probably meets petty offense exception
Result: probably deportable.
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2 CIMTs not arising out of a single scheme (can be any time
after admission)
•Crimes committed on the same day and alleged in the same
criminal charging document will generally be considered part
of a single scheme.
Fennemore Craig, P.C.
Ground of Deportability: Two CIMTS
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Ground of Deportability: Aggravated Felony
Most common Aggravated Felonies:
•Murder, rape, sexual abuse of a minor
•Trafficking in a controlled substance
•Certain firearm/explosives offenses
•Crime of violence with actual sentence of one year or more
•Theft, burglary, receiving stolen property with actual sentence of one
year or more
•Fraud, money laundering with loss of $10,000
•Forgery, counterfeiting with actual sentence of one year or more
•Obstruction of justice with actual sentence of one year or more
•Running a prostitution business
•Alien smuggling
•Attempt or conspiracy to commit any of the above
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Has the most serious immigration consequences – makes student
ineligible for almost all forms of relief, strips the immigration judge of
discretion, and triggers a lifetime bar to future immigration status.
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Crime of Violence:
•any offense with element of use, attempted, or threatened use of
physical force against person or property of another
– Ex: battery, assault, vandalize property
or
•any other offense that is a felony that by its nature involves substantial
risk that physical force against the person or property of another may
be used in the course of committing the offense
– Ex: felony burglary of a dwelling
Crime of Violence Examples:
•Arson in First Degree
•Assault of Public Safety Personnel
•Assault with Deadly Weapon
•Carjacking
•Kidnapping
•Manslaughter (First Degree)
Fennemore Craig, P.C.
Ground of Deportability: Aggravated Felony
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Example: Aggravated Felony
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
Potential grounds for deportability:
•CIMT: yes, if theft with intent to permanently deprive
•2 CIMTs not arising out of a single scheme: possibly the
same scheme, but if not, there are 2 CIMTs
•Aggravated Felony (theft): theft with intent to permanently
deprive – but may be able to argue intent to return the car
(joy ride). Also need actual sentence of 1 yr. or more.
Potential grounds for inadmissibility:
•CIMT (petty offense?)
Fennemore Craig, P.C.
Deportability
Thomas stole computers, Ipods, and other electronic
equipment while on campus during Christmas break. He later
“test drove” a car from a dealership and did not return. He
was arrested for theft and was detained at an ICE facility.
•Two convictions with aggregate sentence of 5 years:
depends on actual charges and jurisdiction
Result: likely deportable and inadmissible.
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Example: Aggravated Felony
Deportability
Pierre went off campus to a party and became
intoxicated, returned to campus and allegedly choked
a female student. He was arrested for physical
assault.
Potential grounds for deportability:
•CIMT: probably not unless aggravated assault
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
•Crime of Violence w/ sentence of one year or more:
would probably need a deadly weapon
Potential grounds for inadmissibility:
•CIMT: probably not, but if it is may be eligible for
petty offense exception
Result: probably no immigration consequences, but
depends on conviction.
Fennemore Craig, P.C.
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
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Example: Aggravated Felony
Deportability
Robert was accused of rape by a female
student. He was required to leave campus
housing. A detective interviewed him, but he
was not arrested pending investigation.
Potential grounds for Deportability:
•CIMT: yes if convicted
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
•Aggravated felony rape: yes if convicted
Potential grounds for inadmissibility:
•CIMT: yes if convicted
Result: If convicted of rape, will be both
deportable and inadmissible.
Fennemore Craig, P.C.
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
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Example: Aggravated Felony
Deportability
Paola got a job on campus in the bookstore,
and has been accused of stealing $1,000 in
merchandise since she started working. She is
charged with theft.
Potential grounds for Deportability:
•CIMT: yes if intent to permanently deprive
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
•Aggravated felony theft: yes if convicted
Potential grounds for inadmissibility:
•CIMT: yes if convicted
Result: If convicted of rape, will be both
deportable and inadmissible.
Fennemore Craig, P.C.
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
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Ground of Deportability: Controlled Substance
Includes:
•Possession of paraphernalia
•Simple possession of any drug (except for first time possession of 30 grams
or less of marijuana)
•Sale, transport for sale, possession for sale, or other drug trafficking offense
(also an aggravated felony)
•Possession of look-alike substance
•Any other offense “relating to” a controlled substance
Does not include:
•A conviction for a single offense of 30 grams or less of marijuana for one’s
own use (but this can affect travel – up to officer’s discretion)
•An offense involving a drug not listed on the federal schedule of controlled
substances
Fennemore Craig, P.C.
Defined as a conviction for “a violation of (or a conspiracy or attempt to
violate) any law or regulation of a state, the United States, or a foreign
country relating to a controlled substance, other than a single offense
involving possession for one’s own use of 30 grams or less of marijuana)
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Example: Controlled Substance
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Sandeep is overwhelmed by the stresses of college life and
decides to unwind one evening by smoking a small amount of
marijuana. He is caught by an off-duty police officer and offered
to a plea to misdemeanor simple possession of marijuana.
Grounds for Deportability:
•CIMT: simple drug possession is not a CIMT
•Controlled substance: depends on amount - there is an exception
for a single offense of 30 grams or less of marijuana
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
Potential grounds for inadmissibility:
•CIMT (petty offense exception?)
•Controlled substance: may be waiver available for possession of
30 grams or less of marijuana
Result: Probably not deportable if 30g or less, however,
marijuana exception does not exist in the controlled substance
ground for inadmissibility. A waiver is available, but it requires a
showing of extreme to a U.S. citizen of LPR family member, and
Sandeep has no family here. If he leaves the U.S., he will not be
admitted again. Needs to try to plead to a non-drug offense.
Fennemore Craig, P.C.
Deportability
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Defined as the conviction of “any law of purchasing, selling, offering
for sale, exchanging, using, owning, possessing, or carrying, or of
attempting or conspiring to purchase, sell, offer for sale, exchange,
use, own, possess, or carry, any weapon, part or accessory which is
a firearm or destructive device.”
Many statues refer to a “deadly weapon” or “dangerous instrument”.
Good rule of thumb is:
•Gun = deportable
•Knife = not deportable
Fennemore Craig, P.C.
Ground of Deportability: Conviction Relating to Firearms
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Example: Conviction Relating to Firearms
Deportability
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
Benjamin attended a gun show and
purchased a firearm from an individual’s car
and placed it in his trunk. As he drove away,
police arrested him for possessing a firearm
with a non-immigrant visa.
Potential grounds for deportability:
•Conviction relating to firearms: yes
Potential grounds for inadmissibility:
•none
Result: deportable.
Fennemore Craig, P.C.
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
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Ground of Deportability: Domestic Violence
Includes:
•An offense under state DV statute that has an element of intentional force
•A DV offense with a reckless mens rea (in some circuits)
Does not include:
•A DV offense with a reckless mens rea (in some circuits)
•A negligent mens rea
•Offense committed against property
•Battery/assault committed with offensive touching
•False imprisonment committed by deceit
Fennemore Craig, P.C.
Must meet definition of “crime of violence,” which requires the “use, attempted
use, or threatened use of physical force” or a felony that has a substantial risk
that physical force will be used.
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Example: Domestic Violence
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Jim, newly married, gets into an argument with his wife after
he learns he was not accepted into law school. At some
point he grabs her wrist causing her to lose her balance and
fall. He is convicted of a misdemeanor, domestic violence
charge of assault and disorderly conduct. No jail time, but
there would be probation, possibly of one year.
Potential grounds for deportability:
•CIMT: probably not a CIMT
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
•Crime of Violence: probably not, plus there must be an
actual sentence of one year or more
•Domestic Violence: probably not, must meet definition of
“crime of violence”
Fennemore Craig, P.C.
Deportability
Potential grounds for inadmissibility:
•CIMT: probably not, but he appears eligible for petty offense
exception
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Result: Probably no immigration consequences
•For any purpose or benefit
•A conviction is not required
Fennemore Craig, P.C.
Ground of Deportability: False Claim to U.S. Citizenship
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Example: False Claim to U.S. Citizenship
•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
Erica is walking on campus when she passes a voter registration
booth. The booth personnel ask he if she’s registered to vote.
She says she is not because she is not a U.S. citizen. That’s ok,
they say, she can just check the U.S. citizen box and it will be fine
– people do it all the time. Besides, if she just votes in local city
elections it’s no big deal. She decides to register.
Potential grounds for deportability:
•False claim to U.S. citizenship: yes, particularly if she knowingly
checked the U.S. citizen box and if the form indicated that it was
under penalty of perjury.
•Unlawful voting
Potential grounds for inadmissibility:
Fennemore Craig, P.C.
Deportability
•Same
Result: deportable and inadmissible.
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•Student remains in U.S. beyond authorized period
•Student works without a work permit or work visa
Fennemore Craig, P.C.
Ground for Deportability:
Overstays & Unauthorized Employment
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•CIMT w/in 5 years
•Two CIMTs
•Aggravated Felony
•Controlled substance
•Firearms
•DV/stalking/child abuse
•False claim to U.S. citizenship
•Overstay/Work
Mounika was discovered working at a kiosk in the
mall during her first semester of her freshman year.
Potential grounds for deportability:
•Unauthorized employment: as a freshman,
Mounika would not have OPT, and therefore offcampus employment is prohibited.
Inadmissibility
•CIMT
•Controlled substance
•Two convictions w/ 5 years
•Reason to believe drug
trafficker
•False Claim to U.S.
citizenship
•Overstay/Work
Potential grounds for inadmissibility:
•Same
Fennemore Craig, P.C.
Deportability
Example: Overstays & Unauthorized
Employment
Result: deportable and inadmissible (unless
married to USC).
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Fennemore Craig, P.C.
QUESTIONS
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