Articles Posted in Felonies

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Last week, United States Immigration and Customs Enforcement (ICE) launched a series of immigration enforcement operations nationwide, otherwise known as “raids” to crack down on illegal immigration. The operations took place over a five-day period in the metropolitan cities of Los Angeles, Chicago, Atlanta, San Antonio, and New York City, and resulted in the arrest of more than 680 individuals. According to the Department of Homeland Security, these raids were targeted at convicted criminals unlawfully present in the United States, persons who are a threat to our public safety, including gang members, and “individuals who have violated our nation’s immigration laws” by illegally re-entering the country after having been removed, including fugitives who could not be found after having been ordered removed by federal immigration judges. Additionally, DHS reported that of those who were arrested, approximately 75 percent were criminal aliens, convicted of crimes including “homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges.”

Communities across the United States went into uproar, after reports began pouring in that hundreds of non-threatening individuals including mothers and children were being taken into custody and removed from the United States during these operations. One of the first such individuals to be arrested was Guadalupe Garcia de Rayos, a Mexican mother of two U.S. Citizen children, who was detained by ICE at a routine check point in Phoenix, after having lived 20 years in that state. Garcia de Rayos had come to the United States illegally as a child. She was arrested during a 2008 raid on her Arizona workplace on suspicion that the business was hiring undocumented immigrants using fraudulent IDs. Garcia de Rayos was taken into custody six months later, when investigators discovered discrepancies in her employment documents. She pled guilty in 2009 to criminal impersonation and was sentenced to 2 year’s probation. Despite these offenses, Guadalupe was considered to be a “low priority” of enforcement and was required to check in with immigration officials.

After news broke of her arrest, the Mexican Foreign Ministry issued a statement urging Mexican nationals to contact the Mexican consulate for immigration assistance, information relating to their immigration rights, and protections offered to them by the Center for Information and Assistance to Mexicans (CIAM). According to the Foreign Ministry, Mexican consulates in the United States have allocated additional resources to protect the rights of Mexican nationals. The Foreign Ministry added that they anticipate these immigration raids will increase in severity and are likely to violate the due process of rights of Mexican nationals.

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One of the most common questions we often receive during in person and telephonic consultations is whether an aggravated felony may decrease a person’s chances to legalize their status in the United States. The harsh reality is that the immigration options for noncitizen aliens convicted of an “aggravated felony” are severely limited, and in most situations, the immigration laws of the United States subject these individuals to the harshest deportation consequences. Even if you have been lawfully admitted to the United States or are currently a Legal Permanent Resident (LPR) you may be subject to deportation if you commit an aggravated felony. In other words, so long as you are a noncitizen alien, you may be at risk of deportation if you are or have been convicted of what is considered an “aggravated felony” in the United States or any other country. What’s more, aggravated felons lose many of the privileges that are designed to provide relief to individuals from deportation, and in some cases these individuals may be prevented from re-entering the United States permanently, following removal from the United States. The immigration laws of the United States, passed by Congress, contain numerous provisions that are designed to keep criminals outside of the United States, and in turn prevent criminals from being allowed to remain in the United States. While Congress has recognized that there are few exceptions to the rule that should be made in cases where there is a compelling argument to be made in favor of allowing a person found guilty of an aggravated felony to remain in the United States, having taken into consideration the fact that an immigrant’s removal may result in extreme hardship for U.S. Citizens. Unfortunately, these exceptions are very few and far in between, and deportation is the most probable outcome. When it comes to crimes of moral turpitude and crimes that fall under the category of “aggravated felonies” the U.S. immigration system is very unforgiving.

What is an aggravated felony?

An aggravated felony is a term that describes a particular category of offenses that carry with them harsh immigration consequences as punishment for noncitizen aliens who have been convicted of these types of crimes. Noncitizens who have been convicted of an aggravated felony lose the opportunity to apply for most common forms of relief available to law abiding noncitizens, that would have shielded them from deportation. Noncitizens who have been convicted of an aggravated felony for example are ineligible to apply for asylum and may not be readmitted to the United States in the future. An “aggravated felony” is an offense that Congress has labeled as such, and does not actually require the crime to be considered “aggravated” or a “felony” to qualify to be an “aggravated felony.” In other words, the term must not be taken literally. Many crimes that are labeled “aggravated felonies” are nonviolent in nature and constitute minor offenses, nonetheless these crimes fall under the Congressional categorization of an “aggravated felony.”

The myth of what constitutes an “aggravated felony”

For purposes of immigration law, an offense does not need to be considered “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” under the Congressional definition of “aggravated felony.” There are numerous non-violent and trivial misdemeanors that are considered aggravated felonies per the immigration laws of the United States. At its inception, the term referred to crimes that were of a violent and non-trivial nature including such crimes as murder, federal drug trafficking, and illicit trafficking of firearms. Today, Congress has expanded the types of crimes that fall under the category of “aggravated felonies” to include non-violent crimes such as simple battery, theft, the filing of a false tax return, and failure to appear in court when summoned. To view the complete list of aggravated felonies under the Immigration and Nationality Act please click here. Other offenses that fall under this category include sexual abuse of a minor, although some states do not classify these crimes as misdemeanors or criminalize such behavior for example in cases of consensual intercourse between an adult and a minor. In most situations, a finding of any of these offenses will result in the loss of most immigration benefits, and in cases where the noncitizen is already a legal permanent resident or is in lawful status, the noncitizen will be subject to deportation.

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Massachusetts Governor Charlie Baker has proposed a new policy that will allow State Police to contact federal immigration authorities for the purposes of verifying the immigration status of suspects already in custody on state criminal charges. In taking this step, Governor Baker, a Republican, is undoing the actions of his Democratic predecessor, ex-governor Deval Patrick. This new proposal will be put in place to allow federal law enforcement officials to better combat terrorism, gangs, and other activity of a criminal nature in the state of Massachusetts. This policy will affect undocumented immigrants, as well as legal permanent residents, with extensive criminal records or those convicted of serious crimes of moral turpitude.

State police will not be able to apprehend individuals based on immigration violations alone. Instead, as a result of this new policy, state troopers will be able to contact Immigration and Customs Enforcement (ICE) and inquire with ICE whether a person in custody is considered a ‘priority target.’ A ‘priority target’ is someone who has extensive criminal history or poses a security risk. By law, state police cannot enforce federal immigration law, but they will be able to assist federal law enforcement officials in detaining individuals in custody who pose a significant threat to the country’s national security.

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