Immigrants with Crimes to "Attempt" Conviction(s) Beware
January 6, 2011 by Immigration Law Attorney Lena Korial-Yonan, Esq.
It is common knowledge now that immigrants in the U.S. who are convicted of crimes can be subject to being placed in removal proceedings and possibly losing their green cards. That is why I recommend to my clients that they retain a good criminal attorney that I can work with as an immigration attorney to negotiate a plea with the criminal justice system personnel that will NOT harm my clients' immigration status.
A recent case from the Board of Immigration Appeals has been released that explains that any time a person is convicted for an "attempt to commit..." charge, it will be considered the same as the actual act itself rather than just an attempt. For example, the charge of "attempted grand theft," will be considered by immigration officials as a conviction for grand theft. Yes, you read that correctly. A conviction for "attempt" to commit a crime is not a lesser charge in the immigration's eyes than committing the actual offense itself. Criminal lawyers and others interested can refer to the case of Matter of Vo, 25 I&N Dec. 426 (BIA 2011) for more information.
The same rule explained above refers to solicitation crimes and conspiracy crimes. The BIA's reasoning is that there is no difference between the person's committing of the crime and their attempt to commit the crime, as the intent by that person remains the same. Much of the criminal statutes refer to the person's intent at the time of committing the act. Therefore, if a criminal lawyer wants to reduce the charge, it is at times beneficial to obtain a plea that includes negligence on the person's part rather than an act that includes the person's intent to commit an act that involves moral turpitude.
Obviously the criminal laws as they apply to immigration laws and procedures are extremely complicated and this blog does not address many issues. However, the summary is that a plea to an "attempt" to commit a specific crime may result in the immigration finding that you will be treated as if you actually did commit the crime for immigration purposes.
The one fact to consider that the above BIA case does not address is whether the sentencing is lower for a conviction for an "attempt" to commit a crime rather than a conviction for committing the actual crime. For certain crimes, if a person is sentenced to one year in jail, even if that sentence is later not served for good behavior, the immigration officials may consider that crime to be an aggravated felony.
Many immigrants already know that if the immigration officials consider a crime to be an aggravated felony, then that person is in the danger zone for their immigration case. Please note that a crime can be considered an aggravated felony even if the crime itself is classified as a misdemeanor by the criminal justice system, so be careful here and retain an immigration attorney to help avoid this happening to you.
Therefore it is important to know that crimes with convictions for attempts, solicitation and conspiracy all may count for immigration purposes as committing the actual offense itself. In addition, when your criminal attorney is negotiating with the state attorney's office, your lawyer must keep in mind that it is important to obtain a sentence of less than one year, even if it is a day less than one year. Immigrants that are sentenced for one year or more of jail time will possibly have their conviction be escalated to the level of an aggravated felony. Upon consultation with an experienced immigration lawyer, you can see if your crime rises to the level of an aggravated felony BEFORE you agree to any plea.
Of course the safest course to follow is to have no arrests and no convictions at all, at least until you are a U.S. citizen.
The information in this article is for educational purposes only and nothing contained in this article should be considered as legal advice. This article is intended to provide general information on a very complex topic. Please refer to my website at www.needimmigrationhelp.com for more information.
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Lena Korial-Yonan, P.A.
9425 Craven Road, Suite 5
Jacksonville, FL 32257
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