Immigration Consequences of Criminal Activity, 4th Editionlib.store.yahoo.net/lib/aila/Criminal4thIndex.pdf · 556 American Immigration Lawyers Association overview, 11–17 Aggravated

555

INDEX Alphabetization is word-by-word (e.g., “R visas” precedes “REAL ID Act”)

A AAO. See Administrative Ap-

peals Office Abuse. See Child abuse; Domes-

tic violence “Abuse of discretion” standard of review, 25 ACCESS (Agreements of Coop-

eration in Communities to Enhance Safety and Secu-rity)

immigration law enforce-ment, 142

Accessory after fact plea, 452 Accurint tool in criminal-alien law

practice, 31, 498 Adam Walsh Child Protection

and Safety Act of 2006 failure to register as sex

offender, 278 Addicts controlled substance of-

fenses, 259 ground for deportation,

259 Address, change of registration requirement,

272, 281, 337 Adjustment of status advance parole, 7–8 aggravated felony of-

fenses, 307, 348 alien smuggling charges,

329, 416 application for, 503–6 defined, 125–26 discretionary relief, 27,

346–47, 505–6

domestic violence of-fenses, 325, 349–50

export violations, 277, 337–38, 350

failure to register, 332 falsification of documents,

332–34 firearms offenses, 316,

349 ground of inadmissibility,

344–45 Homeland Security De-

partment (DHS), 351n27

jurisdiction, 347–48 money laundering of-

fenses, 319–21 moral turpitude, crimes of,

300–301 Notice to Appear, 17 permanent and non-

permanent resi-dents, availabil-ity, 346

registration offenses, 350 relief under, 344–50 section 212(c) waiver in

conjunction with, 400–401, 428–29

section 212(h) waiver in conjunction with, 357–59

T visa applicants, 477–78 U status, 484–85, 487 visa fraud, 332–34, 350 as waiver, 344–50 Administrative Appeals Office

(AAO) overview, 16–17, 25 T status, denial of, 478

Administrative orders, chal-lenge to

as defense to criminal charge of re-entry after removal, 422–23

Admissions to prosecutor, re-quired for diversion

effect of, 77 Advance parole adjustment of status, 7–8 Adverse immigration conse-

quences, avoiding federal first offender

treatment, 441–42 juvenile delinquency,

442–43 methods to, 439–63 petty offense exception,

443–44, 447 pretrial diversion, 440–41 state first offender pro-

grams, 442 youthful offenders, 442–

43 AEDPA. See Antiterrorism and

Effective Death Penalty Act of 1996

A-file with DHS, 11 FOIA requests, 32, 392 method of agencies locat-

ing client, 139 re-entry after removal,

134 Africa temporary protected status

(TPS), 7 Agencies, government locating clients with

criminal convic-tions by, 138–43

Aggravated assault IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.

556 American Immigration Lawyers Association

overview, 11–17 Aggravated assault moral turpitude, crimes of,

210, 211, 212 plea, 448, 462 Aggravated felonies. See also

specific offenses adjustment of status, 307,

348 asylum and withholding

of removal, 309–10, 366, 367–68, 450

attempts, 218, 255 cancellation of removal,

458 case law, 218–19 classification of crimes,

188, 189, 217–55 consequences of convic-

tion, 307–16, 341, 450–56

conspiracy, 218, 255 Convention Against Tor-

ture (CAT), 310–11, 450

crimes of violence, 235–47, 253

definition of, 217–18, 382–83

deportabil-ity/removability, 308, 381, 382–83, 450

federal, state, and certain foreign convic-tions, 218–35

inadmissibility, adjust-ment of status, and visa eligibil-ity, 307

judicial review of “par-ticularly serious crime” determina-tion, 310

LPRs and waivers, 353–57

mandatory detention, 308, 450

misdemeanors treated as, 253–55

modified categorical ap-proach, 190–91

moral turpitude, crimes of, 210, 348

naturalization, 311, 414, 450

non-elemental facts, 190–91, 198

offenses that depend on amount of funds involved, 250–52

offenses that depend on “commercial ad-vantage,” 252–53

offenses that depend on sentence imposed, 250

pardons, 84 plea to avoid, 452–56 section 212(c) waiver,

394–95, 510 sentence for, term of im-

prisonment, 450–51

voluntary departure, 308–9

Aggravated felons, expedited removal of

overview, 130–32 relief from, 132–33 Aggravated fleeing and eluding plea, 449 Aggravated stalking moral turpitude, crimes of,

212 plea, 449 Aiding and abetting aggravated felonies, 247–

48

classification of crime, 191–92

moral turpitude, crimes of, 203–4

AILALink tool in criminal-alien law

practice, 32–33 AILA.org tool in criminal-alien law

practice, 32–33 Alien smuggling aggravated felony, 218,

249–50, 329, 415–17, 452

asylum and withholding of removal, 331

consequences of, 268–72, 329–31, 342

Convention Against Tor-ture (CAT), 331, 417

crime of, 270–72 defined, 270 deportabil-

ity/removability, 268–69, 329

immediate family mem-ber, exception for, 269–70, 414–15

inadmissibility, adjust-ment of status, and visa eligibil-ity, 268–69, 329

moral turpitude, crimes of, 216

naturalization, 331 plea, 452 relief, 414–17 adjustment of status,

416 asylum and withhold-

ing of re-moval, 416–17

INDEX Arriving aliens

American Immigration Lawyers Association 557

cancellation of re-moval, 415, 416

deportability and in-admissibility, absent a con-viction, 414–15

naturalization, 417 section 212(c) waiver,

416 section 212(h) waiver,

416 voluntary departure, 330 American citizens derivative citizenship,

406–11 at birth, citizenship at,

407–8 children born outside

U.S., 408–9 LPRs, 2 requirements for, 2–3 status of, 2–3 American Immigration Law

Foundation practice advisory of, 28 Amnesty programs adjustment of status, 125–

26. See also Ad-justment of status

reinstatement of removal, 137

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

key legislation, 34 section 212(c) waiver,

129, 130, 377–402, 423, 427–33

Appeals AAO. See Administrative

Appeals Office Attorney General review,

16, 24

BIA. See Board of Immi-gration Appeals

bond determination, 154, 155, 156

automatic stay during, 168–72

Office of Chief Counsel, 16

petitions for review to Court of Appeals, 23–24, 25, 26, 27–29, 131

removal proceedings, 21–23

T status, denial of, 477 Applicants for admission inadmissibility, 122, 127 Applications for waiver generally, 495 adjustment of status, 351,

503–6 applicant in U.S., 496–97 battered spouse and child,

351, 352–53, 374–75

embassy, 495, 496 evidence in support of

waiver, 499–503 applicant, evidence

relating to, 500–502

family members, evi-dence relating to, 502–3

family members, 506–8 evidence relating to,

502–3 immigration court, 497 memoranda in support of alternate filing for

section 212(c) waiver, 523–29

of eligibility for natu-ralization, 537–40

memoranda of law, 514–18, 523–29, 537–40

before USCIS or American Embassy, 514–15

other government agen-cies, 497

preparation and presenta-tion of, 495–540

pretrial statement, 515–16 sample, 531–36 refugee waiver under sec-

tion 209(c), 362–65, 508–9

section 212(c) waiver, 509–10, 523–29

section 212(h), 506–8 venues, 495, 496–97 witness list, 516–18, 531 AR-11 form change of address, 272,

281, 337 Arizona detention centers, 43, 44 immigration courts and

judges, 46 Offices of Chief Counsel,

39 REPAT program, 138 Armed Criminal Career Act of

1984 (ACCA) classification of crimes,

189 Arrest at border, 13 upon termination of sen-

tence, 13 while out in community,

13–14 Arriving aliens adjustment of status, 347–

48 change of address card,

272, 281

Arson IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


jurisdiction over custody issues, 159–62

pleas, 462 registration in United

States, 272–74 section 212(h) waiver,

357–59 smuggling. See Alien

smuggling voluntary departure, 308,

309, 402, 404 Arson moral turpitude, crimes of,

213 plea, 448 Assault with deadly weapon, 211 on law enforcement offi-

cer, 212 moral turpitude, crimes of,

210, 211, 212, 213

not crime of violence, 241, 242

plea, 457 Asylum adjustment of status, 125–

26, 505–6. See also Adjustment of status

aggravated felony convic-tion as bar to, 309–10, 366, 450

alien smuggling charges, 331, 416–17

controlled substance of-fenses and, 314–15

Convention Against Tor-ture (CAT) com-pared, 6, 368–69

defined, 5–6 domestic violence of-

fenses, 328–29 eligibility for relief, 459

entry without inspection, 10

export violations, 340 failure to register, 336 filing fee exception, 20 firearms offenses, 319 immigration status, 5–6 money laundering, 323–

24 Notice to Appear, 17 referral of petition, 17–

18n51 relief under, 365–66 section 209(c) waiver,

362–65 standard of review, 25 temporary protected status

(TPS), 7 visa fraud, 336 Visa Waiver Program

(VWP), 4–5 withholding of removal

distinguished, 5–6, 366

Athletes nonimmigrant visa hold-

ers, 3, 126 Attempt. See also specific of-

fenses aggravated felony, 218,

255 intent, 211 Attempted murder moral turpitude, crimes of,

211 Attempted possession of stolen

property aggravated felony, 249 Attorney General discretionary waivers, 362 EOIR, 11 invocation of custody rule,

177–78 review, 16, 24 temporary protected status

(TPS), 7

Attorneys application of waiver, evi-

dence in support applicant, 500–502 family members, 502–

3 conviction records, ob-

taining, 500–501 defense and immigration

counsel, impor-tance of working as team, 461

immigration client check-list, 295–98

Legal Net, 512 notice of appearance of

counsel, 21 G-28 form, 459 removal proceedings,

right to, 18 tools and strategies for

criminal-alien law practice, 30–33

Authority over immigration law enforcement. See Govern-ment agencies; specific agen-cies

Automatic stay during appeal of bond

hearing, 168–72 Automobiles. See Vehicles

B Background checks. See Bio-

metrics and background checks

Bad checks, passing of moral turpitude, crimes of,

207 plea, 445 Bahamas tourists and temporary

workers from, 4

INDEX California


Bail posting early in criminal

process, impor-tance of, 139

Bail jumping aggravated felony, 218 Battered child. See Child abuse Battered spouse adjustment of status, 125–


cancellation of removal, 374–75

deferred action, 8 review of petitions, 17 waiver application, 351,

352–53, 374–75, 506–8

Battery on law enforcement offi-

cer, 212 moral turpitude, crimes of,

210, 213 plea, 457 sexual battery, 243 Bermuda tourists and temporary

workers from, 4 Beyond a reasonable doubt

standard for conviction defined, 74 BIA. See Board of Immigration

Appeals Biographic form, G-325 S status, 473 Biographic form, G-325A adjustment of status, 504,

505 Biometrics and background

checks application for waiver,

498–99 convictions, 130 fees, 20, 498, 503, 512

immigration applications requiring, 139–40, 498–99

locating clients with criminal convic-tions, 139–40

registration, 272, 273, 274 removal proceedings, ap-

plication for re-lief, 20, 21

Birth citizenship at, 407–8 Board of Immigration Appeals

(BIA) attorney general review,

16 bond redetermination for

electronic moni-toring, 185–86

contact information, 45 notice of appeal require-

ments, 21–22 overview, 15–16 removal proceedings, 21–

23 review after BIA appeal,

23–24, 25, 27–29 Bonds, posting of arriving aliens, 160 automatic stay and, 168–

72 client held in detention,

138–39 deportable respondents,

162 EWI, 160, 162 hearings before Immigra-

tion Judge on, 154–59, 160, 162, 167

redetermination for elec-tronic monitoring, 185–86

requests, 139 Border arrest at, 13

Customs and Border Pro-tection (CBP), role of, 7, 11–13, 53

Bribery commercial, 218, 250, 383 of witness, 218, 250 Burden of proof classification of crime,

196–97 postconviction relief on

merits (vacaturs), 88–89

removal proceedings, 20 withholding of removal,

5–6 refugee or asylum

status, 5–6 Bureau of Consular Affairs visa issuance, 14 Bureau of Industry and Security export violations, 276,

277 Burglary aggravated felony, 217 classification of crimes,

189 moral turpitude, crimes of,

206–7 plea, 445, 446, 448–49 Business professionals nonimmigrant visa hold-

ers, 3, 417

C California detention centers, 43, 44 driver's license laws, 143 immigration courts and

judges, 46–47 Offices of Chief Counsel,

37, 38, 40

Canada IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


Canada tourists and temporary

workers without visas from, 4

Cancellation of removal admission gained through

fraud and, 372–73 aggravated felonies, 458 alien smuggling charges,

415, 416 battered spouses, 374–75 continuous residence vs.

LPR status, 370–72

discretionary determina-tion, 27

eligibility for relief and, 458

immigration court filings, 511

ineligible individuals, 373–74

NACARA §203, 375–77 relief under, 369–77 section 212(c) waiver,

combined with, 401

special rule, 375–77, 511 CAP (Criminal Alien Program) generally, 15 Caribbean tourists and temporary


CAT. See Convention Against Torture

Categorical approach classification of crimes,

188–89, 191, 195, 198, 199, 200, 265–66

Cayman Islands tourists and temporary

workers from, 4

CBP. See Customs and Border Protection

CCA (Child Citizenship Act of 2000)

generally, 409–11 Change of address card registration requirement,

272, 281, 337 Change of status inadmissibility, 126 Checklists for immigration clients,

295–98 Child abuse battered children cancellation of re-

moval, 374–75

deferred action, 8 waiver application,

351, 352–53, 506–8

crime of violence, 242 deportability, 266–67 moral turpitude, crimes of,

214–15 sexual abuse, 214–15,

217, 254, 455 Child born outside U.S. derivative citizenship,

408–9 Child Citizenship Act of 2000

(CCA) generally, 409–11 Child pornography aggravated felony, 217 moral turpitude, crimes of,

214 Circumstance-specific approach classification of crimes,

198–99 Citizenship and Immigration

Services (USCIS) adjustment of status, 125,

505

applications for relief, re-moval proceed-ings, 21, 21n63

applications for waiver, 496

biometrics and back-ground checks, 496–97

conviction records, re-quirement, 500–501

deferred action, 8–9 memoranda of law before,

514–15 Notice to Appear, 17 overview, 11–13, 14, 15 parole, 7 structure of (chart), 57 visa applications, 14 Classification of crimes. See also

specific offenses aggravated felonies, 217–

55 beyond moral turpitude

and aggravated felonies, 255–79


under immigration law, 187–298

methodology, 188–99 burden of proof, 196–

97 categorical approach,

188–89, 191, 195, 198, 200, 265–66

circumstance-specific approach, 198–99

evidence, 197–99 minimal (or least cul-

pable) conduct approach, 190

modified categorical approach,

INDEX Controlled substance offenses


189–91, 194, 195, 198, 200, 204, 209, 214, 265–66

new step-by-step methodology, 193–98, 200, 203, 204, 214

realistic probability test, 188, 192–93, 194, 197, 249

moral turpitude, crimes of, 200–216

motion to terminate, 284–93

non-elemental facts, 190–91, 195–96, 198, 261–62, 265–66

overview, 187–88 Clients application of waiver, evi-

dence in support applicants, 500–502 family members, 502–

3 background checks, run-

ning on, 498 confirmation-of-

appointment let-ters, 33, 65–66

conviction records, 500–501


status of, defining, 1–10 tools and strategies for

criminal-alien law practice, 30–33

Coercion and intimidation as defense to criminal

charge of re-entry after removal, 422

Colorado detention center, 44

immigration court and judges, 47


Commerce Department export violations, 276,

277 Commercial bribery aggravated felony, 218,

250, 383 Confirmation-of-appointment

letters as tool in criminal-alien

law practice, 33, 65–66

Connecticut immigration court and

judges, 47 Office of Chief Counsel,

35 Consequences of criminal act generally, 299–300 aggravated felonies, 307–

16, 341 alien smuggling, 329–31,

342 chart of, 341–42 controlled substance of-

fenses, 311–16, 341

domestic violence, 324–32, 342

export violations, 337–40, 342

falsification of documents, 322–37, 342

firearms offenses, 316–19 money laundering of-

fenses, 319–24, 341

moral turpitude, crimes of, 300–307, 341

visa/passport fraud, 322–37, 342

Conspiracy aggravated felony, 218,

255 drug-related, 452 drug trafficking, 153, 221,


204 Consular office waiver application, 418–

19 Continuous residence LPR status distinguished,

370–82 Contributing to delinquency of

minor plea, 455 Controlled substance offenses aggravated felonies, 219–

35 asylum and withholding

of removal, 314–15

consequences of, 311–16, 341

Convention Against Tor-ture (CAT), 314–15

definition of, 256–58 deportabil-

ity/removability, 312–13

drug abusers and addicts, 259

drug paraphernalia, 257–58, 283–87, 461–62

inadmissibility adjustment of status,

and visa eligi-bility, 311–12

deportability compared to, 313

removability and, as independent

Convention Against Torture (CAT) IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


grounds for, 255–59

mandatory detention, 313–14


naturalization, 315–16 Ninth Circuit variation on

first of-fender/youthful offender provi-sions, 78–80

other federal circuits on first of-fender/youthful offender provi-sions, 81–82

pardons, 84 plea, 452, 454, 458, 460,

461–62 “reason to believe,” 258–

59, 312, 314 solicitation offenses, 257 trafficking in, 216, 217,

219–35, 452 voluntary departure, 314 Convention Against Torture

(CAT) aggravated felonies, 310–

11, 450 alien smuggling, 331, 417 controlled substance of-

fenses, 314–15 domestic violence of-

fenses, 328–29 filing fee exception, 20 firearm offenses, 319 money laundering, 323–


305–6 petition to court of appeals

for denial of pro-tection under, 26

visa/passport fraud, 336

withholding of removal under, 6, 305–6, 310–11, 314–15, 319, 323–24, 328–29, 331, 336, 368–69, 417, 450

Conviction admissions to prosecutor,

required for di-version, effect of, 77

beyond a reasonable doubt standard, 74

defined, 73–99 diversion, 76–77 evidence of, 500 expungements, 77–83 FFOA expungements, 82–

83 finality of, 74–75 first offender/youthful

offender provi-sions, 78

foreign convictions, 98–99

juvenile delinquency, acts of, 95–97

LPRs, 3 modification of sentence,

postconviction re-lief, 95

Ninth Circuit variation on first of-fender/youthful offender provi-sions, 78–80

nonimmigrant visa hold-ers, 4

other federal circuits on first of-fender/youthful offender provi-sions, 81–82

pardons, 83–85

postconviction relief on merits (vacaturs), 85–94, 103–20

pretrial intervention, 76–77

proof of convictions, 99–100

record sealings, 77–83 suspensions of sentence,

100–101 withholds or deferrals of

adjudication, 75–76

Cooperating witnesses mandatory detention,

151–52 Cooperating witnesses, visas for generally, 3–4, 465 S status, 465–74 adjustment to perma-

nent resident status, under S status, 470–71

conditions of status, 469

deferred action, 8, 9 family members, 471,

473–74 I-854 form, 489–94 overview, 465–66 parole, 473–74 regulations, 467–68 statute, 466–67 time to acquire, 472 tips and advice on,

472–74 written commitment,

472–74 T status, 474–78 adjustment of status,

477–78 annual cap, 477, 478 application procedure,

476–77 battered spouse, 8 deferred action, 8

INDEX Customs and Border Protection (CBP)


extreme hardship, 475 family members, 477 final order of removal,

476 nonimmigrant status,

issuance of, 477–78

overview, 474 pending immigration

proceedings, 476

permanent residency, 477–78

regulations, 475 review, 17 revocation of status,

477 “severe form of traf-

ficking,” de-fined, 475

statute, 474 U status, 478–87 adjustment of status,

484–85, 487 battered spouse, 8 “criminal activity,”

defined, 480 deferred action, 8 family members, 482–

83, 486–87 filing, 481–82 jurisdiction, 487 overview, 478–79 permanent resident

status, 484–87 regulation, 480–84 removal proceedings,

persons in, 483–84

review, 17 statute, 479–80 Counterfeiting aggravated felony, 218,

250, 383 currency or securities,

plea, 460

goods, 208 Country-condition experts tool in criminal-alien law

practice, 33 Country-condition sources of

information (Websites) tool in criminal-alien law

practice, 33, 503 Credit card fraud moral turpitude, crimes of,

207 plea, 448, 460 Crimes of violence. See Vio-

lence, crimes of Crime victims. See also Cooper-

ating witnesses, visas for in crime of domestic vio-

lence, 265–66, 460

nonimmigrant visa hold-ers, 3–4

Criminal activity aggravated felons, expe-

dited removal of, 130–33

relief from, 132–33 Attorney General, invoca-

tion of custody rule, 177–78

deportability, 128–30 for criminal record

holders, 123 distinguished from

inadmissibil-ity, 128–30, 313

inadmissibility adjustment of status,

125–26 change of status, 126 for criminal record

holders, 124–25

entry without inspec-tion, 127

“good moral charac-ter,” 127

naturalization, 127 parolees, 126 temporary protected

status, 127 visa applicants at

American em-bassies, 126

mandatory detention, 133 “release from cus-

tody,” 162–64 Criminal Alien Program (CAP) generally, 15 Criminally reckless conduct crimes of violence, 236–


202, 210, 212 Criminal mischief plea of, 447, 448 Cuban Adjustment Act of 1966 adjustment of status, 505 review under, 17 Cuban citizens and nationals.

See also Cuban Adjustment Act of 1966

order of supervision for, 9 unremovable status of,

173 Currency reporting violation plea, 453, 461 Custody rule. See Transition

Period Custody Rules (TPCR)

Customs and Border Protection (CBP)

application for waiver, 497

deferred inspections, 141 overview, 7, 11–13 parole, 7 re-entry after trip abroad,

procedures for, 141

structure of (chart), 53

Deadly weapons IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


D Deadly weapons plea, 460 Deceit. See Fraud DED (deferred enforced depar-

ture) defined, 8–9 Defenses for re-entry after re-

moval overview, 422–23 Deferrals of adjudication comparison with pretrial

diversion, 440 defined, 75–76 Deferred action criminal conviction, effect

on, 9 defined, 8–9 Deferred enforced departure

(DED) defined, 8–9 Deferred inspections clients with criminal re-

cords at, 141 Delinquency of minor plea of contributing to,

455 Department of. See name of

specific department Deportability aggravated felons, expe-

dited removal of, 130–33

burden of proof, 20 for criminal record hold-

ers, 123 distinguished from inad-

missibility, 313 grounds for LPRs, convic-

tions, 3 inadmissibility distin-

guished from, 128–30

LPRs, convictions, 3

overview, 128–30, 151 pardons, 83–85 petty offense exception,

444 section 212(c) waiver and,

129, 130, 395–401

Deportation Criminal Alien Program

(CAP), 15 in absentia, 18, 423 naturalization as defense

to, 411–14 notice, 423 permission to reapply for

admission after deportation or removal, 519–22

permission to re-enter af-ter, Form I-212 not required, 420–21

re-entry after removal, 133–35

stay of, 518–19 withholding of removal, 6 Depositions removal proceedings, 19 Derivative citizenship at birth, citizenship at,

407–8 children born outside

U.S., 408–9 LPRs, 2 naturalized permanent

resident before child 18, 3

parents as citizens, 2, 3 relief under, 406–11 requirements for, 2–3 Destructive devices. See also

Explosives defined, 260–62 trafficking in, 217, 245

Detention, mandatory. See Mandatory detention

Detention centers list of, 43–44 DHS. See Homeland Security,

Department of Discretionary determinations.

See also specific applications and waivers

federal judicial review, 25, 27, 28, 29, 152

Diversion pretrial, 76–77 Divisible statutes aggravated felonies, 241,

242, 249, 455, 456

classification of crimes, 189–90, 194, 197

crime of domestic vio-lence, 264, 265

drug trafficking, 222–23 firearm offenses, 261–62 moral turpitude, crimes of,

202, 203, 204, 205, 206, 208, 212, 321, 446, 449

DOJ. See Justice Department Domestic violence. See also Bat-

tered spouse; Child abuse generally, 263 adjustment of status, 325,

349–50 asylum and withholding

of removal, 328–29

child abuse, 266–67 consequences of, 324–32,

342 Convention Against Tor-

ture (CAT), 328–29

definition of crime of, 264–65, 324

deportability /removability,

INDEX Equal protection


263–64, 325–3327

inadmissibility, adjust-ment of status, and visa eligibil-ity, 325

mandatory detention, 327 moral turpitude, crimes of,

212, 213, 268, 325

naturalization, 329 plea, 456–57, 460 protection orders, 267–68 reckless, 242 victims, 265–66, 460 DOS. See State Department Driving accidents plea, 452 Driving under influence. See

DUI (driving under influ-ence) cases

DRO. See Office of Detention and Removal

Drug abusers/addicts controlled substance of-

fenses, 259 Drug convictions. See Con-

trolled substance offenses Drug paraphernalia controlled substance of-

fenses, 257–58, 283–87

plea, 461–62 Drug trafficking crimes. See also

Controlled substance of-fenses

aggravated felonies, 219–35

attempts, 153, 224, 235 conspiracies, 153, 221,

235 federal law, 217, 220–21 felony classification, 221–

35 state law, 221–35 misdemeanors, 221–22

Due process federal judicial review, 24 DUI (driving under influence)

cases crime of violence, 237–38 moral turpitude, crimes of,

215–16 plea, 447, 448 Duress as affirmative defense to

criminal charge of re-entry after re-moval, 422

E EAR (Export Administration

Regulations) export violations, 276 Electronic monitoring. See also

Intensive supervision pro-gram

alternative to detention, 156, 157, 172, 175–76, 185–86

Eligibility for relief cancellation of removal

and, 458 naturalization, 459 plea, 457–63 agreement and collo-

quy, 459–64 section 212(h) and, 457–

58 withholding of removal

and asylum, 459 El Salvador. See also Nicara-

guan Adjustment and Cen-tral American Relief Act of 1997 (NACARA)

reinstatement of removal, 136, 377

special rule cancellation of removal, 375–77

temporary protected status (TPS), 7

Embassies abroad, forms of relief,

495, 496 memoranda of law before,

514–15 nonreviewability of con-

sular action, 25 visa applicants at, 11, 14,

126 waiver applications, 495,

496 Employment adjustment of status, 504 authorization document, 9,

11 deferred action, 9 EAD, 11 order of supervision, 9 temporary protected status

(TPS), 7 Entertainers nonimmigrant visa hold-

ers, 3, 417 Entry without inspection (EWI) arriving aliens compared,

160 bond hearing, 160, 162 defined, 10 inadmissibility, 127 mandatory detentions, 162 removal proceedings, 10 voluntary departure, 308,

309 EOIR. See Executive Office for

Immigration Review EOIR-27 form notice of appearance of

counsel, 21 EOIR-29 form appeal to BIA, 21 EOIR-42A form waiver application, 511 Equal protection federal judicial review, 24

Equities IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


Equities cancellation of removal,

511–12 section 212(c) waiver, 510 Evidence classification of crime,

197–99 removal proceedings, 19,

99–100 in support of waiver, 499–

503 applicant, evidence

relating to, 500–502

family members, evi-dence relating to, 497, 502–3

before immigration court, 497

universal list of, 499–503 EWI. See Entry without inspec-

tion Executive Office for Immigra-

tion Review (EOIR) automated information

system on re-moval proceed-ings at, 18

BIA contact information, 45

contact information, 45–52

immigration judges, con-tact information, 45–52

Office of Chief Clerk, 45 overview, 11, 14–16 rules of procedure, 15 Expert witnesses on country conditions, 33 evidence from, 497 Explosives aggravated felony, 217,

245 defined, 260–62 firearm offenses, 259–63

Export Administration Regula-tions (EAR)

export violations, 276 Export violations adjustment of status, 277,

337–38, 350 asylum and withholding

of removal, 340 consequences of, 337–40 deportability

/removability, 276–77, 338

inadmissibility and visa eligibility, 276–77, 337–38

mandatory detention, 338 national security issues,

276–77 naturalization, 340 voluntary departure, 339 Expungements as convictions, 77–83 under FFOA, 82–83 Extortion crime of violence, 213,


213 Extreme hardship T status, visas for cooper-

ating witnesses, 475

waiver applications, 351, 352, 506–8

F Failure to appear on felony change, 218 grounds for, 18 for service of sentence,

218 Failure to register asylum and withholding

of removal, 336

crimes involving, 272–74, 281

deportability /removability, 334

inadmissibility, adjust-ment of status, and visa eligibil-ity, 332–34


naturalization, 336–37 visa fraud and, 272, 274–

76 voluntary departure, 335–

36 Failure to stop and render aid

after fatal car accident moral turpitude, crimes of,

213 False statements moral turpitude, crimes of,

208–9 pleas, 461 Falsification of documents. See

also Fraud; Visa/passport fraud

adjustment of status, 332–34, 350

asylum and withholding of removal, 336


deportabil-ity/removability, 334

inadmissibility and visa eligibility, 332–34


naturalization, 336–37 voluntary departure, 335–

36 Family members adjustment of status, 504

INDEX Firearms


alien smuggling, excep-tion for immedi-ate family mem-ber, 269–70, 414–15

visas for cooperating wit-nesses

S status, 471, 473–74 T status, 477 U status, 482–83, 485,

486–87 waiver applications for,

506–8 evidence in support,

502–3 Federal Bureau of Investigation

(FBI) rap sheet tool in criminal-alien law

practice, 30–31, 63–64, 498, 500–501n7

Federal First Offender Act of 1984 (FFOA)

adverse immigration con-sequences, avoid-ing, 441–42

expungements, 82–83 state counterparts to, 78–

82 Federal judicial review arriving aliens, 160–62 constitutionality, 152, 162 detention during review of

final removal or-der, 174–75

discretionary determina-tions, 25, 27, 28

habeas corpus, 26, 29–30, 162, 166

jurisdiction, 23, 27, 152 overview, 24–30 “particularly serious

crime” determina-tion, 310

petitions for review to Court of Appeals,

23–24, 25, 26, 27–29, 131

REAL ID Act, 26–27, 29 review after BIA appeal,

23–24 scope of, 24–26 statutory constriction, 152 voluntary departure, 28 Federal Rules of Civil Proce-

dure habeas petitions under, 30 Fees adjustment of status, 503–

4 application for relief from

removal orders, 20

applications for relief, 498 BIA appeals, 21 biometrics, 20, 498, 503,

512 cancellation of removal,

511 hardship to family mem-

ber, 506 permission to reapply for

admission after deportation or removal, 519

removal proceedings, ap-plication for re-lief, 20, 21

section 212(d)(3)(B), 512 special rule cancellation of

removal, 511 stay of deportation, 518 waiver under section

212(c), 509 Felonies aggravated. See Aggra-

vated felonies failure to appear before

court on, 218 moral turpitude, crimes of,

201

temporary protected status (TPS), 7

FFOA. See Federal First Of-fender Act of 1984

Fifth Amendment federal judicial review, 24 Filing fee. See Fees Fingerprinting. See Biometrics

and background checks Firearms crime of violence, 216 defined, 260–62 destructive device, de-

fined, 260–62 offenses, 216, 245–46,

259–63 adjustment of status,

316, 349 aggravated felonies,

245–46 as aggravated felonies,

316–18, 454 asylum and withhold-

ing of re-moval, 319

consequences of, 316–19

Convention Against Torture (CAT), 319

deportabil-ity/removability, 316–18

inadmissibility and visa eligibil-ity, 262, 316

maliciously firing into occupied dwelling, 213

mandatory detention, 318


motion to terminate removal pro-ceedings, 412

First offender, youthful offender provisions IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


naturalization, 319 non-elemental facts,

261–62 plea, 454, 460 possession by felon,

246 “reason to believe,”

262 voluntary departure,

318 pardon, 84 trafficking in, 216 First offender,

youthful offender provisions convictions, 78 Ninth Circuit variation on,

78–80 other federal circuits on,

81–82 Fleeing and eluding plea, 449 Fleuti doctrine elimination of, 123–25 Florida detention center, 43 immigration courts and

judges, 47–48 immigration law enforce-

ment, 142n59 Motor Vehicles Depart-

ment and immi-gration status, 143

Offices of Chief Counsel, 38

Foreign convictions effect of, 98–99 Forgery aggravated felony, 218,

383 Former Soviet-bloc countries.

See also Nicaraguan Ad-justment and Central American Relief Act of 1997 (NACARA)

reinstatement of removal, 137, 377


Fraud aggravated felony, 218 amount of funds involved,

250–52, 451 cancellation of removal

not available when admission gained through, 372–73

crimes involving, 204, 207–8, 250–52

plea, 445, 451, 455–56, 460

Freedom of Information Act (FOIA) requests

A-file, obtaining, 32, 392 tool in criminal-alien law

practice, 31–32

G G-28 form notice of appearance by

counsel, 459 G-325 form S status, 473 G-325A form adjustment of status, 504,

505 waiver application, 504 G-639 form FOIA requests, 32 Gambling aggravated felony, 217 Georgia immigration court and


35 “Good moral character” aggravated felonies, 308–

9, 311 alien smuggling, 330, 331

controlled substance of-fenses, 314, 315–16

domestic violence convic-tions, 328, 329

export violations, 339, 340

firearms offenses, 318, 319

money laundering, 323, 324

moral turpitude, crimes of, 304–5, 306–7

naturalization, 127, 129, 306–7, 311, 315–16, 319, 324, 329, 331, 337, 340

visa/passport fraud, 335–36, 337

voluntary departure, 304–5, 308–9, 314, 318, 323, 328, 330, 335–36, 339, 405–6

Government agencies. See also specific agencies

locating clients with criminal convic-tions by, 138–43

overview, 11–17 “Green card” holder. See Law-

ful permanent residents (LPRs)

Guatemala. See also Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA)

reinstatement of removal, 136, 137, 377


INDEX Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)


H Habeas corpus petitions federal judicial review, 26,

29–30, 162, 166 Haitian Refugee and Immigrant

Fairness Act of 1998 (HRIFA)

adjustment of status, 506 reinstatement of removal,

136–37 Hardship extreme. See Extreme

hardship to family members,

waiver applica-tion, 506–8

Hawaii immigration court and

judge, 48 Office of Chief Counsel,

37 Hearings bond hearings, 10, 154–

59, 160, 162, 167 removal proceedings. See

Removal pro-ceedings

video, 138, 139 Homeland Security, Depart-

ment of (DHS) adjustment of status,

351n27 admissions, making to

officers of, 440–41

deferred action, 9 deportation unit, 9 mandatory detention, 151 Notice to Appear, 17 Offices of Counsel, ad-

dresses of, 35–41 order of supervision, 9 overview, 11–14 parole, 7, 8 waiver, 351n27

Honduras temporary protected status

(TPS), 7 Hostage taking crime of violence, 243 Humanitarian efforts deferred action, 8–9 parole, 7 Hurricane Mitch temporary protected status

(TPS), 7

I I-94 card date on, 11 defined, 10 initial client meeting, 1 I-130 form adjustment of status, 504 I-140 form adjustment of status, 504 I-191 form waiver application, 509–

10 waiver under section

212(c), 509–10 I-192 form section 212(d)(3)(A)

waiver, 512–15 I-212 form permission to reapply for


waiver application, 420–21

I-246 form stay of deportation, 518–

19 I-485 form adjustment of status, 345,

505 waiver application, 508–9

I-485A form adjustment of status, 504 I-601 form waiver application, 506–8 I-602 form waiver application, 508–9 I-797 form deferred action, 9 I-854 form S status, 465–74, 489–94 I-918 form U status, 478–87 I-929 petition U status, 486–87 ICE. See Immigration and Cus-

toms Enforcement Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRAIRA)

aggravated felonies, 217, 382–83

applicants for admission, 127

convictions, 74, 75 domestic violence and

protection orders covered by, 268

Fleuti doctrine eliminated by, 123

key legislation, 34 LPRs, special waiver rules

for, 353 mandatory detention, con-

cept introduced by, 149–50

Notice to Appear, 18 reinstatement after re-

moval, 135, 137 removability, concept in-

troduced by, 121 section 212(c), 423 section 303(b), text of,

183–84 section 309, text of, 179–

81

“Illegal status” IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


waiver applicability to LPRs, 353–57

“Illegal status” generally, 9–10 Illinois immigration courts and


36 Immigration Act of 1990

(IMMACT90) good moral character re-

quirement, 308–9, 405

key legislation, 34 naturalization, 414 Immigration and Customs En-

forcement (ICE) application for waiver,

497 deferred action, 8–9 detention by, 139 institutional removal

cases, 15, 139 local police, 141–42 mandatory detention, 149 Motor Vehicle Depart-

ments and SSA enforcement, 143

Offices of Chief Counsel, 35–41

order of supervision, 9 parole, 7 role of, 11–14 state or federal detention,

individuals in, 138

structure of (chart), 55 Immigration and Nationality

Act of 1952 (INA) aggravated felonies, 217 classification of crimes,

187 convictions, 73–75, 77 deportability, 20 derivative citizenship, 2

evidence at removal pro-ceedings, 99–100

“good moral character,” 127

inadmissibility, 121, 128 juvenile offenders and

crimes of moral turpitude, 98

law of nationality and naturalization, 2

local police, 142 mandatory detention, 150 nonimmigrant visa hold-

ers, 3 refugees, 5 reinstatement after re-

moval, 135, 137 status under, 2 Visa Waiver Program

(VWP), 4 Immigration court. See also

Executive Office for Immi-gration Review (EOIR); spe-cific types of proceedings

adjustment of status, 505 cancellation of removal,

511 contact information, 45–

52 forms of relief, 497 list of courts and judges,

45–52 pretrial statements to,

515–16, 531–36 section 212(c) waiver,

509–10 waiver applications, 497,

507, 509–10 witness list, 516–18 Immigration status generally, 1–2 American citizen, 2–3 I-94 card, 10 “illegal” status, 9–10 lawful permanent resident,

3

nonimmigrant visa holder, 3–5

present without inspection or admission or overstay, 9–10

protective categories, 5–9 Imprisonment. See Sentence INA. See Immigration and Na-

tionality Act of 1952 Inadmissibility adjustment of status, 125–

26 applicants for admission,

122 burden of proof, 20 change of status, 126 controlled substance of-

fenses, 311–12 deportability distin-

guished, 128–30 entry without inspection,

127 export violations, 276–77 failure to register, 332–34 “good moral character,”

127 ground of, adjustment of

status, 344–45 LPRs, 122–23 moral turpitude, crimes of,

300–301 naturalization, 127 overview, 121–27 pardons, 83–85 parolees, 126 petty offense exception,

444 scope of, 121–22, 150–51 section 212(a)(2)(A), ap-

plication of, 121–27

section 212(c) waiver and, 394, 395–401

temporary protected status, 127

INDEX Lawful permanent residents (LPRs)


visa applicants at Ameri-can embassies, 126

Infopass appointments on case status, 499 INS, legacy reorganization, 11 INS Operations Instruction (OI)

242.1(a)(22) deferred action, 8 Inspection, evasion of generally, 10 Institutional Removal Program

(IRP) generally, 15 prisoner removal, 139 Instrument, U.S., falsely making aggravated felony, 218 Insurance fraud plea, 460 Intake sheets tool in criminal-alien law

practice, 33, 65–66

Intensive Supervision Appear-ance Program (ISAP)

alternative to detention, 175–76

Intensive supervision program alternative to detention,

156–57, 172, 175–76, 185–86

Intent. See also specific offenses moral turpitude, crimes of,

193, 201–2 recklessness. See Reck-

lessness violence, crimes of, 236–

37 Interpreters need for, 516–18 Intimidation moral turpitude, crimes of,

213

Investors nonimmigrant visa hold-

ers, 3, 4, 417 Involuntary manslaughter moral turpitude, crimes of,

211 not crime of violence, 242 IRP (Institutional Removal Pro-

gram) generally, 15 ISAP (Intensive Supervision

Appearance Program) alternative to detention,

175–76

J Jewish refugees from former

Soviet Union unremovable status of,

173 Joyriding intent, 205 plea, 445 theft offense, 248 Judicial review. See Federal

judicial review Jurisdiction adjustment of status, 347–

48 custody issues, 159–62 federal judicial review, 23,

24, 26–27 nonimmigrant visa

waiver, 418–21 U status, 487 Justice Department (DOJ) appeals, 16 overview, 11 Juvenile delinquency adverse immigration con-

sequences, avoid-ing, 442–43

convictions, effect of, 95–97


Juvenile shelter care facilities generally, 44

K Kickbacks on government con-

tracts moral turpitude, crimes of,

207 Kidnapping aggravated felony, 217

L Larceny moral turpitude, crimes of,

204 Law enforcement officer, assault

or battery on moral turpitude, crimes of,

212 not crime of violence, 241 Lawful permanent residents

(LPRs) adjustment of status, 125–

26, 346. See also Adjustment of status

citizenship by derivation, 2

continuous residence dis-tinguished, 370–82

criminal convictions, ef-fect of, 3

deferred action, 9 defined, 3 inadmissibility, 122–25 moral turpitude, crimes of,

444 refugee or asylum status,

5

Legal authority IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


seeking admission, 122–25

status of, 2, 3 U status, 484–87 waiver under section

209(c), 363–65 waiver under section

212(h) aggravated felony

convictions, 353–54

non-aggravated felony convictions, 354–55

Legal authority sources of, 34 Legal Net section 212(d)(3)(B)

waiver denials, contacting, 512

Legend drugs offenses involving, 256,

460 Legislation recent key pieces of, 34 Letters confirmation-of-

appointment, 33, 65–66

LEXIS tool in criminal-alien law

practice, 32–33, 495

Locating clients with criminal convictions

biometrics and back-ground checks, 139–40

Department of Motor Ve-hicles or Social Security Admini-stration, 142–43

immigration application, filing of, 139–40

local police, 141–42 methods for, 138–43

probation or parole offi-cers as source for, 140–41

re-entry after trip abroad, 141

serving time in state or federal detention, 138–39

Louisiana detention center, 43 immigration courts and


38 LPRs. See Lawful permanent

residents

M Mail fraud moral turpitude, crimes of,

208 Mail service Notice to Appear, 18 Mandatory detention generally, 133 aggravated felony convic-

tion and, 308, 450 alien smuggling, 330 alternatives to, 175–76 arriving aliens, 462 bond hearings, 154–59 charge of inadmissibility

for crime of moral turpitude and, 302–3

constitutionality of, 152, 162

controlled substance of-fenses, 313–14

cooperating witnesses, release of, 151–52

detention for arrest not charged on NTA, 164–67

domestic violence, 327 export violations, 338 failure to register, 334–35 falsification of documents,

334–35 firearms offenses, 318 hearings on bonds, 160,

162 invocation of custody rule,

177–78 legal challenges to, 153–

54 money laundering, 322 moral turpitude, crimes of,

302–3, 444–45 non-mandatory detention

cases, 168–72 overview, 149–67 reasons to hold person

without bond, 167–76

“release from custody,” 162–64

releases on or before Oc-tober 8, 1998, 167

section 303(b) of IIRAIRA, text of, 183–84

section 309 of IIRAIRA, text of, 179–81

Transition Period Custody Rules (TPCR), 150, 167

invocation of, by At-torney Gen-eral, 177–78

visa fraud, 334–35 Manslaughter moral turpitude, crimes of,

211 not crime of violence, 242 Marijuana offenses. See Con-

trolled substance offenses Maryland immigration court and

judges, 48–49

INDEX Moral turpitude. See also specific offenses



Massachusetts immigration court and


35 “Master calendar” hearing defined, 19 Medicaid/Medicare fraud plea, 460 Memoranda of law motion for postconviction

relief, 109–11, 117–20

polygraph examinations, 67–72

USCIS or American Em-bassy, 514–15

waiver applications, 514–18, 523–29, 537–40

Mexico tourists and temporary


Michigan immigration court and


36 Military service naturalization and, 2, 3,

412–14 Minimal (or least culpable) con-

duct approach non-elemental facts, 190–

91, 195–96 Minnesota immigration court and


39 Minors. See also Child abuse delinquency of, contribut-

ing to, plea, 455

sexual abuse of, 214–15, 217, 219, 254, 455

Misdemeanors aggravated felonies,

treated as, 253–55 drug trafficking crimes,

221–22 foreign convictions, 99 moral turpitude, crimes of,

201 not crime of violence, 242 sexual abuse of minor,

254 temporary protected

status, 7 violence, crimes of, 253 Misidentification defense of, 422 Misprision of felony moral turpitude, crimes of,

209–10 plea, 452–53, 454 Misrepresentation as defense to criminal


Missouri immigration court and

judges, 49 Modified categorical approach classification of crimes,

189–91, 194, 195, 198, 199, 200, 204, 209, 214, 265–66

Money laundering aggravated felony, 217,

250, 262, 323, 324

amount of funds involved, 250, 451

asylum and withholding of removal, 323–24


Convention Against Tor-ture (CAT), 323–24

Deportability /removability, 321–22

inadmissibility, adjust-ment of status, and visa eligibil-ity, 262–63, 319–21

mandatory detention, 322 moral turpitude, crimes of,

208, 321, 323 naturalization, 324 plea, 451, 453–54 “reason to believe,” 263 state offenses, 321 voluntary departure, 322–

23 Moral turpitude. See also spe-

cific offenses generally, 200–204 adjustment of status and

inadmissibility, 300–301

admission of essential elements, 300–301

aggravated felonies, 348 asylum and withholding

of removal, 305–6

avoiding conviction for crime involving, 444–49

burden of proof, 196–97 classification of crimes,

188, 189, 192–98 consequences of, 300–

307, 341, 444–50 Convention Against Tor-

ture (CAT), 305–6

Motion to reopen IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


crimes involving, 200–216

defined, 200–201, 445–48 deportability

/removability, 301–3

multiple criminal con-victions, 302–3

domestic violence of-fenses, 268

elements of criminal stat-ute as controlling, 201

evidence, 197–98 intent, 193, 201–2 juvenile offenders, 98 mandatory detention,

302–3, 444–45 multiple counts, avoiding,

447–49 naturalization, 306–7, 445 negligence vs. reckless-

ness, 202–3 new step-by-step classifi-

cation methodol-ogy, 192–98, 200, 203, 204, 214

non-elemental facts, 195–96

petty offense exception, 301, 443–44, 447

plea, 444–49 realistic probability test,

188 recklessness, 192, 202–3,

210, 211, 212, 237, 445

specific offenses as crimes involving, 204–18, 445–48. See also specific of-fenses

violence, crimes of, 210–13, 447. See also

Violence, crimes of

visa eligibility, inadmissi-bility, 300–301

voluntary departure, 304–5

Motion to reopen grounds, 18 postconviction relief on

merits (vacaturs), 89, 103–20

removal proceedings, 89 Motion to terminate removal proceedings,

145–48, 284–93, 414

Motor Vehicles, Department of criminal convictions un-

covered by, 142–43

Multiple counts plea, 447–49, 462 Murder aggravated felony, 217

N N-400 form naturalization, 411 Nationality-based legalization

program. See specific groups National security export violations, 276–77,

340 as grounds of inadmissi-

bility, 421 National Security Act sabotage and treason un-

der, 217 Naturalization after section 212(c)

waiver, 402 aggravated felonies, 311,

411, 414, 450 alien smuggling charges,

331, 417

controlled substance of-fenses, 315–16

as defense to deportation, 411–14

termination of removal proceedings, 411–12

domestic violence of-fenses, 329

eligibility for relief, 459 export violations, 340 failure to register, 336–37 falsification of documents,

336–37 firearms offenses, 319 “good moral character,”

127, 129, 412 memorandum in support

of eligibility for, 537–40

money laundering, 324 moral turpitude, crimes of,

306–7, 445 Notice to Appear, 17 removal proceedings, 307,

311 veterans and soldiers,

412–14 visa fraud, 336–37 Nebraska immigration court and


40 Negligence vs. recklessness crimes of violence, 236–


202–3, 216 Nevada immigration court and


37 New Jersey detention center, 44

INDEX Operation Tarmac


immigration courts and judges, 49


New York (state) detention centers, 43 immigration courts and

judges, 49–50 Offices of Chief Counsel,

35–36, 38 REPAT program, 138 New York City immigration law enforce-

ment, 142n62 Nicaragua temporary protected status

(TPS), 7 Nicaraguan Adjustment and

Central American Relief Act of 1997 (NACARA)

adjustment of status, 505–6

reinstatement of removal, 136–37, 377


Ninth Circuit first offender/youthful

offender provi-sions, 78–80

Non-elemental facts. See Classi-fication of crimes

Nonimmigrant visa holders adjustment of status, 125–


change of status, 126 criminal convictions, ef-

fect of, 4 defined, 3–5 status of, 2, 3–5 tourists and temporary

workers from Caribbean, Can-ada, and Mexico, 4

Visa Waiver Program (VWP), 4–5

Nonimmigrant visa waiver (sec-tion 212(d)(3))

discretionary waiver, 421–22

factors to consider, 421–22

jurisdiction, 418–21 permission to re-enter af-

ter deportation, Form I-212 not required, 420–21

port of entry application, 419–20

relief under, 417–22 security or terrorism, as

grounds of inad-missibility, 421

Non-mandatory detention cases overview, 168–72 Nonreviewability of consular

action generally, 25 North Carolina immigration court and

judges, 50 Notice of Appeal Board of Immigration

Appeals (BIA), 21–23

Notice of Intent deportability, 131 Notice to Appear (NTA) arrest upon termination of

sentence, 13 deferred inspections, 141 defined, 10 removal proceedings, 17–

18, 59–61, 307 sample, 59–61 state or federal detention,

individuals in, 138

unauthorized individual, issuance by, 18

O Obstruction of justice aggravated felony, 218,


209 plea, 452–53 Office of Chief Counsel burden of proof, 20 overview, 16 Office of Detention and Re-

moval (DRO, ICE) alternatives to detention,

175 custody determinations,

160, 167 deferred action, 8 overview, 12 stay of deportation, 518–

19 voluntary removal, 405,

406 withholding of removal, 6 Office of Principal Legal Advi-

sor (ICE) overview, 12 Offices of Chief Counsel contact information, 35–

41 Ohio immigration court and


36–37 Operating vehicle under influ-

ence. See DUI (driving under influence) cases

Operation Tarmac DHS investigation of un-

documented workers at air-ports, 272

Oral argument IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


Oral argument Board of Immigration

Appeals (BIA), 22

Order of supervision defined, 9 Orders, administrative, chal-

lenges to as defense to criminal

charge of re-entry after removal, 422–23

Oregon immigration court and

judge, 50 Office of Chief Counsel,

41 Overstay generally, 10

P PACER (Public Access to Court

Electronic Records) tool in criminal-alien law

practice, 31–32 Pardons conviction, 83–85 foreign, 84, 85 Parole arriving aliens, 160 criminal conviction, effect

on, 8 definition of, 7–8 document, 8 Parolees inadmissibility, 126 locating clients with

criminal convic-tions via, 140–41

Parole officers locating clients with

criminal convic-tions via, 140–41

Passport fraud. See Visa/passport fraud

Pennsylvania immigration courts and


39 Peonage aggravated felony, 217 Perjury aggravated felony, 218,

250 subornation of, 218, 250 Permanent residents. See Law-

ful permanent residents Petitions for habeas corpus. See

Habeas corpus petitions Petitions for review to court of

appeals after BIA appeal, 23–24,

25, 27–29 expedited removal of ag-

gravated felons, 131–32

removal proceedings, 26 Petty offense exception adverse immigration con-

sequences, avoid-ing, 443–44, 447


Photographs. See Biometrics and background checks

Pleas adverse immigration con-


aggravated felonies, to avoid, 450–56

agreements to avoid, 461 bad deal pleas, 461–62 domestic violence of-

fenses, 456–57, 460

eligibility for relief, creat-ing, 457–63

moral turpitude, to avoid, 444–49

Polygraph examinations memorandum of law on,

67–72 tool in criminal-alien law

practice, 32 Pornography, child. See Child

pornography Port of entry waiver application, 419–

20 Possession of burglary tools plea, 448–49 Possession of stolen property aggravated felony, 217 attempted, 249 moral turpitude, crimes of,

205 Postconviction relief on merits (vacaturs), 85–

94, 103–20 modification of sentence,

95 motion to vacate, 107–8,

113–16 memorandum of law in

support of, 109–11, 117–20

order vacating plea, 115–16

plea, 451 Pretrial detention arrest from, 13 Pretrial diversion programs avoiding conviction

through, 440–41 Pretrial intervention effect of, 76–77 Pretrial statements to immigra-

tion court waiver application, 515–

16 sample, 531–36

INDEX Release on recognizance


Prior statements, use of removal proceedings, 19 Probation locating clients with

criminal convic-tions on, 140–41

Professionals nonimmigrant visa hold-

ers, 3, 4 Proof of convictions documents and electronic

records, 99–100 Prostitution enterprises aggravated felony, 217,

252 Protection orders aggravated felony, 268 domestic violence, 267–

68 inadmissibility and

deportability, 268 Protective categories deferred action, 8–9 immigration status, 5–9 order of supervision, 9 parole, 7–8 refugees and asylees, 5–6 temporary protected

status, 7 Psychological evaluations tool in criminal-alien law

practice, 33, 501–2

Puerto Rico detention center, 43 immigration court and


40

R Racketeering aggravated felony, 217

Rape aggravated felony, 217 statutory, plea, 455 Rapid REPAT (Removal of Eli-

gible Parolees Accepted for Transfer)

prisoner removal program, 138

Rational basis test federal judicial review, 24 REAL ID Act of 2005 federal judicial review,

26–27, 29 key legislation, 34 Realistic probability test classification of crimes,

188, 191–93, 194, 197, 249

non-published cases, use of, 197n30

“Reason to believe” controlled substance of-

fenses, 258–59, 312, 314

firearms offenses, 262 money laundering, 263 Recklessness aggravated felonies, 451–

52 crimes of violence, 210–

11, 216, 236–37, 239–40, 451–52

moral turpitude, crimes of, 193, 202–3, 210–11, 212, 237

violence, crimes of, 210–11

Record of case for Board of Immigration

Appeals (BIA), 23

removal proceedings, 19 section 212(c) waiver,

developing for appeal, 389

through plea agreement and colloquy, 459–64

Record of conviction moral turpitude, crimes of,

202 Record sealing as convictions, 77–83 Re-entry after removal, 133–35 for aggravated felony,

218 criminal charge of,

422–23 locating client with crimi-

nal record at time of, 141

permission after deporta-tion, when Form I-212 not re-quired, 420–21

Referral asylum petition, 17–18n51 Refugees adjustment of status, 505–

6 defined, 5–6 immigration status, 5–6 section 209(c) waiver,

362–65, 508–9 withholding of removal,

5–6 Registration. See also Failure to

register aliens in United States,

272–74, 281 special, 274 Reinstatement of removal overview, 135–38 “Release from custody” re-

quirement mandatory detention,

162–64 Release on recognizance alternative to detention,

175

Religious workers IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


Religious workers nonimmigrant visa hold-

ers, 3 Removal proceedings adjustment of status, 504–

5 appeals, 15, 21–23 “applicants for admis-

sion,” 10 applications filed after

order of removal, 518–22

applications for relief, 20–21

automated information system at EOIR on, 18

Board of Immigration Appeals (BIA), 21–23

burden of proof, 20 contents of record, 19 course of proceedings,

18–21 deferred action, 8, 9 detention after removal

order, 172–76 entry without inspection,

10 evidence, 19, 99–100 filing fee, 20, 21 final merits hearing, 19–

20 individual hearings, 19–20 institutional removal

cases, 15 judicial review, 152 detention during, 174–

75 legal sufficiency of

charges, 20 LPR subject to, 3 “master calendar” hearing,

19 motion to reopen, 89

motion to terminate, 145–48

from naturalization, 307, 311

nonimmigrant status, 4, 10 Notice to Appear, 17–18,

59–61 parole, 8 permission to reapply for


permission to re-enter af-ter, Form I-212 not required, 420–21

record of case, 19 re-entry after, 133–35 for aggravated felony,

218 criminal charge of,

422–23 reinstatement of, 135–38 review after BIA appeal,

23–24, 25, 26 stay of deportation, 518–

19 stay of removal order, 21,

23, 28 travel during pending ap-

peal to BIA, 23 unremovables, 173 U status, 483–84 Visa Waiver Program

(VWP) restric-tions, 4–5

voluntary departure com-pared, 403

withholding of removal. See Withholding of removal

Rental cars failure to return, plea, 445

REPAT (Removal of Eligible Parolees Accepted for Transfer)


Restriction on removal. See Withholding of removal

Robbery moral turpitude, crimes of,

205 Rules of procedure court of appeals, 28 EOIR, 15

S Sabotage under National Security

Act, 217 Section 209(c) asylees, 363–65 comparison to section

212(h) waiver, 363


LPR use of, 363–65 refugees, 363–65, 508–9 relief under, 362–65 Section 212(c) adjustment of status, com-

bined with, 400–401

affirmative applications for, 401–2

aggravated felonies, 394–95, 510

alien smuggling charges, 416

applications for waiver, 509–10, 523–29

cancellation of removal, combined with, 401

INDEX Sentence


defense to criminal charge of re-entry after removal, 423


domicile, 510 eligibility criteria, 394–95 immigration court filings,

510 inadmissibil-

ity/deportability, 395–401

naturalization after waiver, 402

1996 legislation, 377–78 persons convicted at trial,

383–89 federal court vs. regu-

lation, 384–89 record appeal, devel-

oping, 389 persons in deportation

proceedings on or before April 24, 1996, 389–92

case law, 391–92 regulation (Soriano

rule), 389–91 persons physically de-

ported prior to St. Cyr, 392–94

re-entry after preter-mission of §212(c) appli-cation and de-portation, 393–94

reconsideration, 428–33 record for appeal, 389 regulation post St. Cyr

decision, 379–83 relief under, 377–402,

427–33 sample memorandum in

support of alter-

nate filing for, 523–29

Supreme Court decision, 378–79

2004 regulation, 379–83 cut-off dates for eligi-

bility, 379–81 IIRAIRA definition of

aggravated felony retroac-tive, 382–83

individuals in exclu-sion proceed-ings, 381

Section 212(d)(3)(B) application, 512–13 nonimmigrant visa waiver discretionary waiver,

421–22 factors to consider,

421–22 jurisdiction, 418–21 permission to re-enter

after deporta-tion or re-moval, Form I-212 not re-quired, 420–21

port of entry applica-tion, 419–20

security or terrorism, as grounds of inadmissibil-ity, 421

port of entry application, 419–20

relief under, 417–22 terrorism, as grounds of

inadmissibility, 421

Section 212(h) alien smuggling, 416 application, 506–8 arriving aliens, waiver,

357–59

Attorney General on, 362 battered spouse and child

waiver, 351, 352–53

comparison to section 209(c) waiver, 363

in conjunction with ad-justment of status, 357–59

discretionary waivers, 27, 362

eligibility for relief and, 457–58

special clause for LPRs, 352, 353–57

violent or dangerous crime convic-tions, 359–62

waiver in conjunction with adjustment of status, 357–59

waivers under, 351–62, 425–26, 435–37

Secure Communities Initiative (ICE)


Security. See National security Sentence for aggravated felony,

450–51 need for imposition of, in

case of mandatory detention, 163–64

non-criminal alien defen-dants, guilty plea, 423

plea, 462–63 service of, failure to ap-

pear for, 218 suspension of, 100–101 termination of, arrest

upon, 13 U.S. Sentencing Guide-

lines, 423

Service of process IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


Service of process habeas petitions, 30 Notice to Appear, 18 Sex offenders failure to register, 213–14,

278–79 Sexual abuse. See also Rape aggravated criminal, 243 battery, 243 of minor, 214–15, 217,

219, 254 second degree, 242 Slavery offenses aggravated felony, 217 Smuggling of aliens. See Alien

smuggling Social Security Administration

(SSA) criminal convictions un-

covered by, 142–43

Social security number falsely representing, 207 Solicitation offenses controlled substance of-

fenses, 257 Somalia temporary protected status

(TPS), 7 Sources of legal authority generally, 34 Special rule cancellation of re-

moval application, 511 NACARA, 375–77 Spouse, battered. See Battered

spouse S status, visas for cooperating

witnesses. See Cooperating witnesses, visas for

Stalking deportability, 264 moral turpitude, crimes of,

212 plea, 449, 457

State Department (DOS) application for waiver,

496 overview, 11, 14 pardons, 84 State laws firearms offenses, 247 money laundering, 321 Stateless individuals unremovable status of,

173 Statuses. See Immigration status Statute of limitations as defense to criminal


Statutory rape aggravated felony, 219 classification of crime,

192–93 plea, 455 Stay of deportation applications filed after

order of removal, 518–22

criteria, 519 permission to reapply

for admission after deporta-tion or re-moval, 519–22

Stay of removal BIA appeals, 21 federal court of appeals

review, 23, 28 Stolen property attempted possession of,

249 interstate transportation

of, 456 possession of, 205, 217 Students nonimmigrant visa hold-

ers, 3, 417

Subornation of perjury aggravated felonies, 218,

250 Substantial evidence standard federal court review, 25 Supervision, intensive. See In-

tensive supervision program Suspension of sentence conviction, effect of, 100–

101. See also Consequences of criminal act

T Taking of property plea, 445–46 theft offense, 191, 248.

See also Theft Tax evasion aggravated felony, 218,

250 plea, 451, 455 Temporary protected status

(TPS) advance parole, 7 defined, 7 entry without inspection,

10 felony convictions, effect

on, 7 immigration status, 7 inadmissibility, 127 review of denial, 17,

17n49 Temporary restraining orders with habeas corpus peti-

tions, 28 Temporary workers without

visas from Caribbean, Canada,

and Mexico, 4 Tennessee immigration court and

judges, 51

INDEX USA PATRIOT Act of 2001


Termination of sentence arrest upon, 13 Terrorism anti-terrorism legislation.

See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); USA PATRIOT Act

as grounds of inadmissi-bility, 421

Testimony removal proceedings, 19 Texas detention centers, 43, 44 immigration courts and


36, 37, 40 Theft aggravated felonies, 217,

247–49 classification of crimes,

191–92 moral turpitude, crimes of,

204–6 plea, 445–46, 455, 456 taking of property, 250 Third country, acceptance by withholding of removal, 6 Threats of bodily harm moral turpitude, crimes of,

213 Tools and strategies for crimi-

nal-alien law practice generally, 30 Accurint, 31, 498 confirmation-of-

appointment let-ters, 33, 65–66

country-condition experts, 33, 497

country-condition sources of information

(websites), 33, 503

FBI rap sheet, 30–31, 63–64, 498, 500–501n7

FOIA requests, 32 intake sheets, 33, 65–66 PACER, 31–32 polygraph examinations,

32, 67–72 psychological and medical

evaluations, 33, 501–2

Westlaw, LEXIS, AILA-Link, and AILA.org, 32–33

Tourists nonimmigrant visa hold-

ers, 4–5, 417 Visa Waiver Program

(VWP), 4–5 without visas, 4–5 TPCR. See Transition Period

Custody Rules TPS. See Temporary protected

status Trafficking in controlled substance,

216, 217, 219–35, 452

counterfeit goods, 208 in firearms, 216, 217, 245 in vehicles, 218, 250 victims of deferred action, 8 T status visas, 474–78 Transition Period Custody

Rules (TPCR) IIRAIRA sec. 303(b),

183–84 invocation of, by Attorney

General, 177–78 mandatory detention, 150,

167, 168 Travel advance parole, 7–8

controlled substance of-fenses, conse-quence of, 313

convictions, 129 deferred action, 9 during pending appeal to

BIA, 23 S visas, 465 temporary protected status

(TPS), 7 withholding of removal, 6 Treason under National Security

Act, 217 Trespass plea of, 449 T status, visas for cooperating

witnesses. See Cooperating witnesses, visas for

Turks and Caicos Islands tourists and temporary

workers from, 4

U Unremovables defined, 173 U.S. Customs and Border Pro-

tection. See Customs and Border Protection (CBP)

U.S. Immigration and Customs Enforcement. See Immigra-tion and Customs Enforce-ment (ICE)

U.S. passport. See Visa/passport fraud

U.S. Sentencing Guidelines re-entry offenses, 423 USA PATRIOT Act of 2001 key legislation, 34 money laundering under,

263, 320

USCIS. See Citizenship and Immigration Services IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


USCIS. See Citizenship and Immigration Services

U status, visas for cooperating witnesses. See Cooperating witnesses, visas for

Utah immigration court and

judges, 51–52 Office of Chief Counsel,

36

V Vacaturs. See Postconviction

relief Vehicles aiding and abetting in

theft of, 247–48 auto theft, 243–45 as not crime of vio-

lence, 243–45 plea, 446, 448, 449 joyriding, 205, 248 rental car, failure to re-

turn, plea, 445 theft offenses, 247–48 trafficking in, 218, 250 Vehicular homicide not crime of violence,

241, 242 Venues for waiver applications overview, 495, 496–97 Veterans naturalization of, 412–14 Victims of crime as cooperating

witnesses. See Cooperating wit-nesses, visas for

of domestic violence, 265–66, 460

Victims of Trafficking and Vio-lence Protection Act of 2000 (VTVPA)

T visa status, 474–78 U visa status, 478–87

Video hearings prisoner removal, 139 Violence, crimes of aggravated assault, 212 aggravated felonies, 210,

217, 235–47 arson, 213 assault, 212 assault with deadly

weapon, 212 attempted murder, 211 domestic violence, 212,

213 extortion, 213 firearm offenses, 216 force contact vs., 240–41 recklessness, 239–40 intent, 236–37 involuntary manslaughter,

211 law enforcement officer,

assault or battery on, 212

manslaughter, 211 misdemeanors, 253 moral turpitude, crimes of,

210–13, 447 particular offenses, 241–

45. See also spe-cific offenses

plea, 447, 451–52, 453 recklessness, 210–11, 216,

236–37, 239–40, 451–52

stalking, aggravated, 212 threatening behavior,

crimes involving, 213

voluntary manslaughter, 211

waiver under section 212(h) and, 359–62

Violent felonies classification of crimes,

189 Virginia immigration courts and


35 Visa defined, 11 Visa-exempt nonimmigrants port of entry application,

419–20 Visa/passport fraud adjustment of status, 350 aggravated felonies, 218,

250, 275, 276 asylum and withholding

of removal, 336 civil and criminal docu-

ment fraud viola-tions, 275–76


Convention Against Tor-ture (CAT), 336

crimes of, 272, 274–76 deportabil-

ity/removability, 275–76, 334

failure to register, 272–74, 281

falsely making, 208, 218 inadmissibility, adjust-

ment of status, and visa eligibil-ity, 332–34


moral turpitude, crimes of, 275, 332–33, 335–37

naturalization, 336–37 voluntary departure, 335–

36

INDEX Witnesses


Visa Waiver Program (VWP) criminal convictions, 4–5 tourists without visas, 4–5 Voluntary departure generally, 402–4 aggravated felonies, 308–

9 alien smuggling, 330 applications for waiver,

497 bond, 405 “check out” procedure,

405 conclusion of proceed-

ings, 405–6 controlled substance of-

fenses, 314 export violations, 339 failure to timely depart,

403–4, 405 falsification of documents,

335–36 federal judicial review, 28 firearms offenses, 318 money laundering, 322–

23 moral turpitude, 304–5 precommencement or pre-

liminary stage of proceedings, 404–5

removal compared, 403 under safeguards, 402 use of, 402–6 visa/passport fraud, 335–

36 Voluntary manslaughter moral turpitude, crimes of,

211 V petition deferred action, 8

VTVPA. See Victims of Traf-ficking and Violence Protec-tion Act of 2000

VWP. See Visa Waiver Pro-gram

W Waiver. See also specific sec-

tions governing applications for, 495–540.

See also Applica-tions for waiver

battered spouse and child, 351, 352–53

defense of, 422 discretionary determina-

tions, no review of, 27

eligibility, 3 extreme hardship, 351,

352 15-year waiver, 351, 352 Homeland Security, De-

partment of, 351n27

LPRs and adjustment of status, 353–57

relief under, 343–47 section 212(h), 351–62,

435–37 USCIS, 14 visas, 11, 25 Washington (state) detention center, 43 immigration courts and


41 Weapons. See also Firearms offenses, plea, 460 Westlaw tool in criminal-alien law

practice, 32–33

Withholding of removal aggravated felony convic-

tion and, 309–10, 367–68

alien smuggling charges, 331, 416–17

asylum distinguished, 5–6, 366

burden of proof, 5–6 controlled substance of-

fenses and, 314–15

Convention Against Tor-ture (CAT), 6, 305–6, 310–11, 314–15, 319, 323–24, 328–29, 331, 336, 368–69, 417, 450

domestic violence of-fenses, 328–29

eligibility for relief, 459 export violations, 340 failure to register, 336 firearms offenses, 319 money laundering, 323–

24 periodic reporting re-

quirement, 6 procedure, 5–6 relief under, 366–69 visa fraud, 336 Withholds of adjudication defined, 75–76 with no penalty, 76 Witnesses application for waiver,

516–18 bribery of, 218, 250 cooperating. See also Co-

operating wit-nesses, visas for

generally, 3–4, 34 adjustment of status,

125–26. See

Witness protection programs IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.


also Adjust-ment of status

release from detention of, 151–52

list, 516–18 parole, 7 waiver application, 516–

18 Witness protection programs cooperating witnesses,

152 Work permit deferred action, 9 defined, 11 order of supervision, 9

Y Youthful offenders. See also

Juvenile delinquency adverse immigration con-


Documents

Immigration Consequences of Criminal Activity, 4th Editionlib.store.yahoo.net/lib/aila/Criminal4thIndex.pdf · 556 American Immigration Lawyers Association overview, 11–17 Aggravated