“Crimmigration ABC”: Common words, phrases, and terms at crossroads of crimes and immigration


I hope everyone has had a wonderful week.  Crimmigration is a constant topic of conversation and something I revisit every day.  I thought it would be helpful to provide some definitions of common words, phrases, and terms that are important at the crossroads of crimes and immigration.

 

AAggravated FelonyAn applicant who has been convicted of an “aggravated ​felony” ​on or after November 29, 1990, is permanently ​barred from establishing GMC for naturalization.​  Contrary to the categorical title, not all of the crimes listed are considered to be felonies under state law, but are considered as such for the purposes of immigration.  For some offenses, whether an offense falls under the category of an aggravated felony depends on the sentence received.  The complete list of crimes may be found in INA § 101(a)(43).  Examples include: murder, drug trafficking, money laundering, smuggling, and obstruction of justice.
BBarsAs in: permanent or conditional bars to a finding of good moral character.  Some acts will prevent a person from ever being able to show good moral character, and thus they are a permanent bar.  Acts include murder, aggravated felony, genocide, and torture.  Other acts are only a conditional bar, meaning that they may only preclude a finding of good moral character if they happened during a certain time period (ex. habitual drunkard, adultery, unlawful acts).
CConvictionGenerally, a finding by a judge or jury that the defendant who has been on trial is guilty of the crime with which he or she was charged.  In immigration, a conviction is defined as:

A formal judgment of guilt of the alien entered by the court or, if adjudication of guilt has been withheld, where:

a)       A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilty
AND

b)      The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

CIMTCrime involving moral turpitude.  This term is not defined in any statute or regulation, but includes acts that are “base, vile, or depraved” and  are “contrary to the accepted and customary rule of right and duty between man and man.”  These acts may make an applicant ineligible to apply for citizenship and expose him/her to grounds of inadmissibility or deportability.  Examples include murder, aggravated assault & battery, larceny, resisting arrest, and malicious destruction of property.
CWOFContinuance without a finding.  This is a disposition in Massachusetts that means that the final decision has not been made, but the case was continued until a later date.  The person is usually given probation during the time between the first hearing and the second hearing.  In MA, this is not considered to be a conviction, but in immigration law, this is a conviction, even if the case was ultimately dismissed.
DDispositionThe final determination of the court in a criminal charge.
DefendantThe person being charged with a crime.
EEWIEntering without inspection.  A person who is present in the United States but was not admitted or paroled.  This means that the person did not come in with any sort of visa or permission from the government.  This is a grounds of inadmissibility under INA § 212(a)(6)(A)(i).
FFraudDeliberately deceiving someone else with the intent of causing damage.
GGrounds ofAs in: Grounds of Inadmissibility, Grounds of Deportability.  The INA describes different acts that make a person either inadmissible and/or deportable.  The grounds of inadmissibility are found in section 212, and deportability is found in section 237.
H212(H) WaiverA waiver of certain grounds of inadmissibility as identified in the INA.  The Attorney General may waive grounds of inadmissibility related to possession of drugs if the offense was for simple possession of 30 grams or less of marijuana.  The decision is up to the discretion of the AG and depends on certain factors, including time, national security, and rehabilitation.
IImmigration & Nationality ActThe basic set of immigration law in the United States, commonly referred to as the INA.  It was originally created in 1952 and has been amended numerous times.  Immigration law is regulated federally.
JJudgmentA court order that determines each party’s rights and obligations with respect to the issues in dispute.
KKnowledgeSome acts require the element of knowledge in order for a person to be convicted of a crime, i.e. a person must have had the intent.
LLower courtsThe state court system in Massachusetts, as in other states, is divided into different departments.  There are a series of lower courts, from which it is common to see applicant’s docket sheets.  Usually, docket sheets will come from the district court department (ex. West Roxbury District Court, Chelsea District Court).  Above these lower courts are the Appeals Court and the Supreme Judicial Court (diagram).
MMassachusetts General LawsSet of laws governing the state of Massachusetts.  The parts of the general laws are: administration of government; real and personal property and domestic relations; courts, judicial officers and proceedings in civil cases; crimes, punishments, and proceedings in criminal cases; and general laws and express repeal of certain acts.  Referred to as M.G.L.
NNolle prosequiLatin for “we shall no longer prosecute.” In a criminal case, the statement is an admission that the charges cannot be proved or that evidence has demonstrated either innocence or a fatal flaw in the prosecution’s claim. This may be made at any time after charges are brought and before a verdict is returned or a plea entered. If a docket sheet indicates that this was the disposition, it is not a conviction.
Nolo contendereLatin for “no contest.”  The defendant does not accept or deny responsibility for the charges, but agrees to accept punishment.  This plea cannot be used against the person in a later case.
OOffenseA violation of the law or a crime.
PProbationA court-imposed criminal sentence that, subject to stated conditions and restrictions, releases a convicted criminal defendant into the community instead of confining him or her to jail or prison.  Probation is considered to be a restraint on a person’s liberty, and thus fulfills the second requirement for a  conviction under immigration.
PleaAn accused defendant’s formal answer to criminal charges. Typically defendants enter one of the following pleas: guilty, not guilty, or nolo contendere. A plea is usually entered when charges are formally brought.  If a person pleads guilty or sufficient facts are found to support a finding of guilt, the first requirement of a conviction is met.
QAcQuittalAt the end of a criminal trial, a finding by a judge or jury that a defendant is not guilty. An acquittal signifies that the state did not prove their case, not that a defendant is innocent.
RRestraining OrderAn order from a court directing one person not to do something, such as make contact with another person, enter the family home, or remove a child from the state. Restraining orders are often issued in cases in which spousal abuse, stalking, or other immediate harm is feared.  Violation of a restraining order is a grounds of deportability.
SSentenceRefers to the term of imprisonment or probation imposed on a convicted defendant for criminal wrongdoing.  Under the INA, any reference to a sentence includes the period of incarceration ordered by the court, even if it was suspended (the person did not have to spend that time in prison).
TTimeThe important time period for a finding of a person’s good moral character is the first 5 years after receiving his/her green card, and the immediate 5 years preceding a citizenship application.
UUnlawful actsIncludes any act that is against the law, illegal or against moral or ethical standards of the community. All crimes are unlawful acts.  An applicant who has committed, was convicted, or imprisoned for an unlawful act or acts during the ​good moral character ​period may be found to lack good moral character.  Examples are unlawful voting, failure to file tax returns when required, and bigamy.
VVictimThe person against whom a crime is committed.
WWarning (Alien)Given to all defendants who are not U.S. citizens at the beginning of a criminal trial, before he/she makes a plea.  The warning reads, “If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.”  This warning is provided in M.G.L. c. 278 § 29D.
XEXceptionsCircumstances that may apply to certain individuals that lessen or negate what would otherwise be an unlawful act.

For example, there is an exception to unlawful voting if the applicant 1) lived in the U.S. under the age of 16; 2) one or both of the applicant’s parent(s) was/were U.S. citizens at the time of the voting; and 3) the applicant reasonably believed that he/she was a U.S. citizen.

There is also a petty offense exception, which automatically makes a person not inadmissible if (a) the person has committed only one moral turpitude offense ever, (b) the offense carries a potential sentence of a year or less, and (c) the “sentence imposed” was less than six months.

YYouthful offender An adolescent or young adult convicted of a crime, also commonly referred to as a juvenile delinquent.  In general, a guilty verdict, ruling, or judgment in a juvenile court does not constitute a conviction for immigration purposes.​  A conviction for a person who is under 18 years of age and who was charged as an adult does constitute a conviction for immigration purposes.​
ZZealousHaving great energy or enthusiasm while pursuing a cause or objective.  Lawyers and advocates have a duty to be zealous advocates for their clients, and this is especially important in the context of crimmigration.

 

Sources: Immigration & Nationality Act; Cornell University Legal Information Institute