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Infraction

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L

ljacker73

Guest
My girlfriend from Mexico who is a student with F1 visa at Pomona,California was recently arrested and convicted of an infraction involving minor shoplifting.

a) Does this effect her current F1 visa status?
b) How will this influence her case if she decides to apply for permanent residency or citizenship?

Any information in these issues will be greatly appreciated
 


L

lawrat

Guest
I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

Here is a clip from a professor who is well versed in immigration law. In a nutshell, she can be deported back, lose her status and not be able to return for many many years.

Introduction
In 1974, Jesus Collado, then 19, was convicted of misdemeanor statutory rape for having sexual relations with his 15-year-old girlfriend. Since that time, he has been a law-abiding legal resident of the United States and has had no further criminal convictions. The victim and her family have forgiven him. Pursuant to recent immigration laws, however, Collado was arrested and jailed recently and is now in deportation proceedings. He now faces removal from the United States based solely on his 23-year-old misdemeanor conviction. (See Ojito, Mirta "U.S. Released Immigrant for a 1974 Misdemeanor" New York Times. October 25, 1997.)
As this case illustrates, criminal defense lawyers can face unusual challenges in representing foreign-born clients. In 1996, Congress drastically changed immigration laws by enacting two major pieces of legislation: the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), P.L. 104-132 110 Stat. 1214, signed into law April 26, 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), P.L. 104-208, 110 Stat. 3009, effective September 30, 1996. Under these new laws aliens with even minor criminal convictions may now be facing harsh repercussions.
It is important for defense attorneys to be aware of immigration law, because a client could become subject to removal (formerly known as deportation) from the United States based on defense counsel's erroneous advice. In most cases, obtaining an opinion regarding the immigration consequences of criminal convictions from an immigration lawyer can assist the criminal defense lawyer in making a more informed recommendation to his or her client.


Immigration basics
Defense attorneys should recognize that the decisions they make during plea negotiations may in some cases cause their clients to be removed from the United States permanently, undermining the clients’ best interests, and putting the attorneys at risk of malpractice suit. It is best in some circumstances to have a client go to trial rather than accept a "great" plea agreement. Many aliens would rather go to trial with a bad case than plead to a crime that will subject them to removal. For example, a defense lawyer representing an alien may plead to a lesser crime, which could be a misdemeanor under state or federal criminal law. Under the immigration laws, however, the same crime may be classified as an aggravated felony, causing the alien to be removed from the United States—permanently unable to return and ineligible for almost any form of discretionary relief. The following is a brief summary of the current immigration laws.
Removal hearings
Prior to 1997, the Immigration and Naturalization Service (INS) returned illegal and legal immigrants to their home country through exclusion and deportation hearings. The Illegal Immigration Reform and Immigrant Responsibility Act abolished these hearings, replacing them with a removal hearing. The term "removable" means, in the case of an alien not admitted to the United States, that the alien is inadmissible and, in the case of an alien admitted to the United States, that the alien is deportable. (Immigration and Nationality Act (INA) §240(e)(2); 8 U.S.C. §1229a(e).)
Defense attorneys should be aware of the new definition of "conviction" for immigration purposes. In some cases, a client does not even need to be convicted to face immigration consequences. The IIRAIRA codified part of the test articulated in In re Ozkok, 19 I & N Dec. 546 (1988), which previously defined a conviction.
The term “conviction” now means a formal judgment of guilt entered by the court or, if adjudication of guilt has been withheld, a conviction requires:
· (a) that a judge or jury find the defendant guilty or that the defendant admit guilt or admit sufficient facts to support a guilty finding; or
· (b) that the judge order some form of punishment, penalty, or restraint on the defendant's liberty. (INA §101(a)(48)(A); 8 U.S.C. §1101(a)(48)(A).)
It appears that court-ordered diversion may not fall within the definition of a conviction if the diversion statute does not require the defendant to make an admission of guilt or a plea of nolo contendere. Similarly, a juvenile disposition will probably not be treated as a conviction. However, there are no interpretive decisions on these points and defense counsel may still want to consult with an immigration practitioner, particularly if there is any stage at which the alien may have to make admissions relating to the essential elements of an offense. Congress also amended the definition of "term of imprisonment" to state, "any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." (INA §101(a)(48)(B); 8 USC §1101(A)(48)(B).) Therefore, even if the court imposes, for example, a sentence of two years with imposition suspended the entire suspended period constitutes a term of imprisonment for immigration purposes.
Convictions leading to removal
Crimes of moral turpitude: A non-citizen may be removed from the United States if convicted of only one crime of moral turpitude. The INA provides that an alien who is convicted of a crime of moral turpitude within five years of admission, for which a sentence of one year or longer may be imposed, is removable. (INA §237(a)(2)(A)(i); 8 USC 1227 (a)(2)(A)(i).) The INA does not define the term "moral turpitude," but, broadly speaking, moral turpitude usually involves criminal intent (i.e. mens rea) or intrinsically immoral behavior. (People v. Ford, 597 N.Y.S. 2d 882, 883 (Supp. 1993).) Examples of crimes involving moral turpitude include fraud, murder, kidnapping, rape, prostitution, burglary, theft and arson.
Multiple criminal convictions: The INA authorizes removal of an alien who is convicted of two or more crimes of moral turpitude at any time after admission, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial. (INA §237(a)(2)(A)(ii); 8 USC §1227(a)(2)(A)(ii).) Thus, as an example, an alien may be subject to removal if he commits a crime of moral turpitude five year after admission at age 18 and then commits another crime of moral turpitude 30 years later.
Controlled substance violations: An alien may be removed if at any time after admission he or she is convicted of a violation (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. (INA §237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i).) A non-citizen who is, or at any time after admission has been, a drug abuser or addict is also removable. (INA §237(a)(2)(B)(ii); 8 USC 1227 (a)(2)(B)(ii).) In addition, illicit trafficking in a controlled substance qualifies as an aggravated felony for immigration purposes. (INA §101(a)(43); 8 USC 1101(a)(43).)
Domestic violence, stalking, restraining order violations and child abuse: Because of the increased attention to these issues, in 1996 IIRAIRA made convictions for domestic violence, stalking, and child abuse grounds for removal. (INA §237(a)(2)(E)(i); 8 USC 1227(a)(2)(E)(i).) In addition, any immigrant who violates an order that involves protection against "credible threats of violence, repeated harassment, or bodily injury" is removable. (INA §237(a)(2)(E)(ii); 8 USC 1227(a)(2)(E)(ii).) These changes apply to convictions or violatio
 

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