criminal

BIA’s Decision in Matter of Thakker

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September 20, 2024, the Board of Immigration Appeals issued a decision in Matter of THAKKER, 28 I&N Dec. 843 (BIA 2024). Matter of Jurado, 24 I&N Dec. 29 (BIA 2006), aff’d sub. nom. Jurado-Delgado v. Att’y Gen. of U.S., 498 F. App’x 107 (3d Cir. 2009), overruled in part. In Matter of Thakker, the Board of Immigration Appeals (BIA) addressed whether convictions for retail theft under r retail theft under section 3929(a)(1) of title 18 of the Pennsylvania Consolidated Statutes qualified as crimes involving moral turpitude (CIMT) for immigration purposes rendering the Respondent removable under section 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. 8 C.F.R. § 1003.1(d)(3)(ii) (2024). The BIA ultimately concluded that those convictions were not CIMTs. The BIA began by recognizing the long-held principle that theft offenses are only considered CIMTs if they involve an intent to permanently deprive the owner of their property, citing to Matter of Diaz-Lizarraga. The BIA acknowledged that its prior decision in Matter of Jurado had established an assumption that retail theft offenses inherently included this intent to permanently deprive. However, the BIA determined that this assumption, which stemmed from a desire to distinguish between significant and minor property deprivations, was incompatible with the categorical approach established by the Supreme Court in Descamps v. United States, 570 U.S. 254 (2013). The categorical approach dictates that the BIA must focus solely on the elements of the crime as defined by the statute of conviction, rather than on the specific facts of the case. The BIA then examined the relevant Pennsylvania retail theft statute at issue in Matter of Thakker and found that it did not explicitly require an intent to permanently deprive as an element of the offense. Since the statute lacked this essential element, the BIA held that convictions under this statute could not be categorically classified as CIMTs. The BIA distinguished this case from its prior decision in Matter of Diaz-Lizarraga, where it found that shoplifting under a specific Arizona statute was categorically a CIMT. The BIA highlighted that the Arizona statute defined “deprive” in a way that encompassed an intent to permanently deprive, unlike the Pennsylvania statute. The BIA concluded that Matter of Jurado needed to be partially overruled because its assumption regarding intent to permanently deprive in retail theft cases conflicted with the categorical approach mandated by the Supreme Court. This decision emphasizes the BIA’s obligation to adhere to the categorical approach when determining whether a crime involves moral turpitude for immigration consequences. The BIA clarified that it cannot rely on assumptions about criminal intent that are not explicitly stated within the elements of the offense outlined in the relevant statute. The Respondent’s convictions for retail theft under section 3929(a)(1) of title 18 of the Pennsylvania Consolidated Statutes, all of which predate the Board’s decision in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), are categorically not for crimes involving moral turpitude because the statute does not require an intent to permanently deprive the victim of property. 

The Illogical Immigration Consequences of Drug Convictions

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A conviction for a drug offense can have outsized legal consequences when it comes to obtaining employment, licensing, access to benefits and finding housing. Outside of the law it can have serious consequences In some cases minor marijuana offenses could result in eviction or the loss of employment or parental rights. These consequences can effect people for years, long after they have tried to put the conviction behind them. It is almost a right of passage for teenagers to experiment with drugs. A nationwide survey done in 2019 found that 13% of people 12+ used an illicit drug in the past month, and by age 16 that number goes up to 16.5% i. In 1986, Congress passed the Immigration Reform and Control Act (IRCA). IRCA required the U.S. Attorney General to deport immigrants with criminal convictions as quickly as possible. The ADAA of 1986 also authorized the use of “detainers,” under a subsection titled the “Narcotics Traffickers Deportation Act,” by which immigration authorities could request that local law enforcement agencies hold people arrested for controlled substance offenses until they could be taken into immigration custody. This sort of paved the way for political rhetoric that continues to criminalize migration and push for punitive policies towards the treatment of immigrants who cross the southern border without a visa In the 80’s and 90’s drug laws grew in their size and scope and so did their punishments, in part thanks to now President Biden. These laws often discriminated against African American and immigrant populations in the way they were written and enforced. The Anti-Drug Abuse Act of 1986, which set mandatory minimums for drug law violations, including exceptionally harsh penalties for crack cocaine. With this law Congress expanded the drug convictions that are grounds for deportability and exclusion of immigrants from the country. Ultimately Congress amended the laws relating to exclusion and deportability grounds to include a single conviction for violating any law involving a controlled substance as defined by the federal drug schedule. Congress also eliminated all inadmissibility waivers for drug convictions with the exception of only a conviction for possession of less than 30 grams of marijuana, however, marijuana use remains a ground of “health-related inadmissibility” that can apply to any person who admits to having used marijuana and DHS can accuse a non-citizen of “drug trafficking” if they have reason to believe that the person was ever involved in the transporting or transfer of any amount of any drugii. Two years after that the Anti-Drug Abuse Act of 1988 sought to further address “an expansive drug syndicate established and managed by illegal aliens,” in the words of Florida senator Lawton Chiles. Anti-Drug Abuse Act introduced aggravated felonies to the immigration law. Two years after that, the Immigration Act of 1990 signed into law by President H.W. Bush increased the types of offenses considered aggravated felonies. Then in 1994, the Immigration and Nationality Technical Corrections Act of 1994 again increased that number.. Then only two years later, the Anti-terrorism and Effective Death Penalty Act of 1996 increased it yet againiii. The terrorist attacks on September 11, 2001 gave the government the basis to completely revamp the country’s immigration laws not only on paper but by creating the Department of Homeland Security, the largest government agency that ever existed to enforce the immigration laws and to actively investigate and search for noncitizens in the US in order to apprehend, detain, and deport them . These changes to the law coupled with the creation of a second military police force dedicated to the enforcement of those laws, birthed the deportation machine of the twenty first century that is responsible for millions of arrests. Controlled substance charges continue to be the leading grounds for the deportation of non-citizens today with over 34,000 immigrants between fiscal years 2007 – 2012 being removed from the US due a drug conviction. In 2019 alone, ICE arrested more than 67,000 people for drug offenses. An arrest for a drug offense not only renders a non-citizen all but automatically deportable, but it subjects them to mandatory detention. Under U.S. law individuals convicted of certain crimes or that the government has “reason to believe” are involved in drug trafficking are not eligible to get released from immigration custody on bond and they are required to challenge their deportation from jail. Mandatory detention puts an incredible burden on the non-citizen and their family because the court proceedings move much faster on the detained docket, lawyers charge much more money, and it extremely difficult to coordinate the preparation of documents and testimony from immigration detention, especially because the government will detain noncitizens hundreds of miles away from their homes. ICE will only hold noncitizens in New York City temporarily on days they have hearings in court then busses them to New Jersey or Pennsylvanian to be jailed between hearings. ICE even has detention bed quotas—as in, a minimum number of non-citizens that must be detained at any given time. In 2018 ICE increased its detention bed quotas from 34,000 to 40,520. Between May and July 2019 55,185 non-citizens were in ICE custody and the average stay length was 46 days, which resulted in ICE exceeding the budget for immigration detention set by Congress. The government has contracts with private prisons that guarantee a certain capacity (some as high as 100%). When the taxpayers are paying the corporation regardless of whether or not they are actually holding anyone people should start questioning how these deals are being negotiated. The harsh penalties for drugs are not only a concern for immigrants that are in the country without any legal status. Immigrants that are here on a visitor visa, student or employment visa, or even permanent residents with green cards will be put in court and face deportation if convicted of a controlled substance offense, even possession of marijuana (which they would have to prove fits into the exception of being mere possession of less than 30 grams). The vast majority of green … Read more

Respondent With A Pending Appeal of a Criminal Conviction Does Not Have a Criminal Conviction

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The Board of Immigration Appeals published a decision holding that when a respondent has a pending appeal under section 460.30 of the New York Criminal Procedure Law the criminal conviction his not yet final and therefore the respondent has not been “convicted” as defined by INA §1101(a)(48)(A). Matter of Brathwaite Matter of Brathwaite, 28 I&N Dec. 751 (BIA 2023) The respondent filed a motion to terminate his removal proceedings. The Department of Homeland Security (“DHS”) opposes the motion. The Immigration Judge had denied the motion and found the respondent removable and the Board had originally affirmed. The Board of Immigration Appeals was remanded the case by the Second Circuit Court of Appeals to determine the finality of the respondent’s criminal convictions under section 101(a)(48)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A) (2018), and to reassess whether heis removable as charged. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Facts of the Case The respondent is a native and citizen of Trinidad and Tobago and a lawful permanent resident of the United States. DHS served the respondent with a notice to appear alleging that on January 31, 2018, he was convicted of multiple offenses including identity theft, larceny, and possession of stolen property in violation of New York law. DHS charged the respondent with removability under sections 237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), (iii) (2018), for having been convicted of two or more crimes involving moral turpitude and an aggravated felony, respectively. The respondent filed a motion to terminate, arguing that his convictions were not final for immigration purposes under section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), because a New York court had granted his motion for leave to file a late notice of appeal under section 460.30 of the New York Criminal Procedure Law. The Board’s Decision Pursuant to the Board’s interpretation of section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), as affirmed by the Second Circuit, a conviction does not support removability until it is final, meaning that the right to direct appellate review has been waived or exhausted. See Brathwaite, 3 F.4th at 552–53 (affirming the Board’s conclusion in Matter of J. M. Acosta, 27 I&N Dec. at 431, that in enacting section 101(a)(48)(A), Congress intended to incorporate the finality rule of Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988)). Determining whether direct appellate review has been waived or exhausted requires analysis under the criminal procedure laws of the convicting State. Despite reversing the rule in Matter of J. M. Acosta, the Second Circuit did not reach whether other limits on finality relating to a request for a late-filed appeal under section 460.30 of the New York Criminal Procedure Law might be imposed. See Brathwaite, 3 F.4th at 553–54. The BIA recognized DHS’ concerns about delays in the New York criminal process and differing outcomes nationally depending on the criminal procedure statutes in different States. However, the Board found that DHS’ proposal is at odds with the court’s explanation of New York’s appellate process set forth in Brathwaite v. Garland. The Second Circuit clearly stated that a motion to file a late notice of appeal under section 460.30, once accepted by the New York court, is deemed the equivalent of a timely-filed direct appeal. Id. The Board found no authority supporting a qualification on the characteristics of a direct appeal as of right. A motion for leave to file a late notice of appeal “must be made with due diligence after the time for the taking of such appeal has expired.” N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2019). A New York court that has granted such a motion has therefore necessarily concluded that the defendant proceeded with due diligence, even if the motion was filed the maximum 1 year and 30 days after the conviction. We cannot substitute our judgment in that regard. In removal proceedings, DHS has the burden of establishing by clear and convincing evidence that a respondent who has been admitted to the United States is deportable. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A) (2018); 8 C.F.R. § 1240.8(a) (2023); accord Matter of Thomas and Thompson, 27 I&N Dec. 674, 690 (A.G. 2019). Thus, because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. NOTE The BIA’s analysis applies only to section 460.30 of the New York Criminal Procedure Law based on its classification as a direct appeal of right under controlling precedent. Such an appeal is distinct from discretionary appeals beyond the first appeal of right in New York. See generally N.Y. Crim. Proc. Law §§ 450.90, 460.10(5), 460.20 (McKinney 2023). Full Decision

False Claim to U.S. Citizenship

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Inadmissible and deportable for making a false claim to U.S. citizenship. INA § 212(a)(6)(C)(ii); INA §237(a)(3)(D). A person who falsely represents or has falsely represented themselves to be a U.S.citizen for any purpose or benefit under the INA or any other federal or state law is inadmissible anddeportable Therefore, as written, DHS could apply these provisions to a broad range of scenarios,including someone who is underage and uses the U.S. passport of an older friend to get into a bar andhave a drink, someone who votes in an election not realizing that they are not permitted to vote, orsomeone who falsely claims to be a citizen in filling out an I-9 to get employment. There is a limitedand narrow statutory exception for certain children of U.S. citizens. INA § 212(a)(6)(C); INA § 237(a)(3)(D).INA § 212(a)(6)(C)(ii)(II); INA § 237(a)(3)(D)(ii)