A prosecutor’s immigration toolkit

By Lauren Sepulveda
Assistant Criminal District Attorney in Hidalgo County

Whenever I speak on the intersection of immigration and criminal law at CLEs, I play a video from one of my favorite TV shows, Supernatural. Dean Winchester, one of the lead characters, is asked how he and his sidekick brother[1] know about a rare supernatural being, and he retorts, “Well, we know a little about a lot of things—just enough to make us dangerous.”[2]

            I play this clip because my goal in teaching about “crimmigration” (criminal law + immigration) is essentially that—to teach the average prosecutor a little about a large, confusing, and ever-evolving subsection of the law. The field of crimmigration can be so complex and nuanced that it would be inefficient for every prosecutor in Texas to take a deep dive into the subject. However, because immigration issues have increasingly woven themselves into the disposition of our criminal cases, it is essential that prosecutors have a basic understanding of how these two areas of the law intersect and can affect our victims, witnesses, and the defendants we are prosecuting. That is the purpose of this article—to give prosecutors a basic toolkit of immigration knowledge that will aid us in seeing that justice is done.

            The term “crimmigration” was coined by legal scholar Juliet Stumpf in 2006 and refers to the complex intersection of immigration policies and criminal laws that began to emerge in the United States during the 1980s.[3] The intersection began with the passage of the Anti-Drug Abuse Acts of 1986 and 1988 during the Reagan administration and has steadily continued since then under both Republican and Democratic presidents.[4] These new legislative acts addressed both crime and immigration, which led to an overlap of the roles of law enforcement agencies and immigration agencies and to greater coordination between the two.[5] This legislation also created a broad category of criminal activity called “aggravated felonies,” which can lead to deportation for aliens.[6]

Differing definitions

One of the hardest concepts to grasp when learning crimmigration is that both fields use some of the same terms, but in each field those terms can have completely different meanings. To understand how a disposition of a criminal case could affect immigration, prosecutors must learn what commonly used terms mean in the immigration system and how they differ from how those same terms are used in criminal law.

            For example, in the criminal justice system, when someone is “convicted” of a crime, we understand that guilt has been adjudicated for that offense. However, “conviction” has a totally different meaning in the Immigration & Nationality Act (INA).[7] There, a conviction means “a formal judgment of guilt entered by a court, or, if adjudication of guilt is withheld, where 1) a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or [the alien] has admitted sufficient facts to warrant a finding of guilt, and 2) the judge has ordered some form of punishment, penalty, or restraint to [the] alien’s liberty to be imposed.”[8]

            The expansive meaning of “conviction” in the INA allows most criminal dispositions to be considered as a conviction for immigration purposes, and recently, alternative dispute resolutions (such as restorative justice programs and offers of dismissals for pleas to lesser traffic offenses and higher fines) and pre-trial diversion programs began triggering unintended immigration consequences for their participants. For example, in Hidalgo County, we traditionally place individuals on pre-trial diversion or into diversion courts by having them admit guilt on the record and in written documents submitted to the court. The judge will then withhold the finding of guilt, and they are admitted into the pre-trial diversion program or court. Under immigration law, a plea of this kind could trigger immigration consequences because: 1) there is an admission of sufficient facts on the record to warrant a finding of guilt, and 2) the alien’s liberty is restrained by the diversionary program or court.

            To combat these consequences, some offices have sought out ways of placing alien defendants on pre-trial diversion programs that do not trigger immigration consequences. One solution used by the Nueces County District Attorney’s Office is having the alien defendant admit guilt in writing before being placed on the pre-trial diversion program. Neither this non-judicial confession, nor the conditions of the program, are ever tendered to the court or put on the record. Because there has never been a formal admission of guilt to the court or a restriction of liberty recognized by the court, this form is unlikely to trigger immigration consequences for the participant. These policies are applied to both alien and citizen defendants alike. Why adopt such a policy? First Assistant Matt Manning of the Nueces County District Attorney’s Office believes it helps his prosecutors better seek justice. “Seeking justice is our sole, unassailable duty,” Manning said. “Accordingly, anything that constitutes ‘double punishment’ or an inequitable, Draconian collateral consequence upsets the balance of justice and denies fairness to those affected.”

            “Imprisonment” also has a different meaning within the immigration system. A term of imprisonment in the immigration system 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 in whole or in part.”[9] Due to this language, any straight probation in Texas will qualify as a “term of imprisonment.”[10]

            What could this difference mean for an alien defendant? Let’s say a hypothetical alien defendant is charged with second-degree felony Evading with a Motor Vehicle and has been released from custody on bond two days after being booked into the county jail. The alien defendant does not wish to return to jail. The line prosecutor has offered the defense attorney two plea options: 1) a state jail felony reduced to a misdemeanor under Penal Code §12.44(a) and a 30-day sentence with credit for two days served, or 2) two years state jail suspended and probated for three years on the charged offense. Were we to remove the fact that this is an alien defendant, most defense attorneys would agree the more attractive plea option for their client is to plead to probation and keep him from returning to jail. However, because the defendant is an alien, a probated sentence will be considered a conviction under the INA, and the term of confinement on Option 1 would be 30 days and on Option 2 two years. That distinction becomes important because aliens can become inadmissible to the United States or deportable depending not only on the crime they are convicted of, but also on the length of the term of imprisonment. Generally, in immigration, the shorter the term of “imprisonment” the better, so the first option would be the more desirable one for the alien defendant to avoid triggering immigration consequences.

The crime

As previously mentioned, what crime the alien defendant pleads to matters as well. In immigration, we are concerned about a broad category of offenses called “aggravated felonies.” When any alien is convicted of an aggravated felony, he or she is ineligible for U.S. citizenship, ineligible to receive a visa, and ineligible to be admitted to the United States if the term of imprisonment was completed within the last 15 years.[11]

            Somewhat similar to the way the term is used in criminal law, “aggravated felonies” in immigration refer to particularly serious crimes. However, unlike our “3g” offenses, what is considered an aggravated felony under immigration law includes a broader list of crimes.[12] The expansive list can encompass several Texas misdemeanors.

            In immigration law, a “crime of violence” with a term of imprisonment of at least one year also qualifies as an aggravated felony. A “crime of violence” is an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.[13] In a recent Fifth Circuit decision, United States v. Gracia-Cantu, Texas’s Assault Family Violence (AFV) statute was found to be an aggravated felony under immigration law if the term of imprisonment was at least one year.[14] That means a guilty plea on an AFV case with a sentence of one year in county jail suspended for two years would be a plea to an aggravated felony, and that conviction would make the immigrant or alien ineligible for admission for the next 15 years and keep him or her from ever becoming a United States citizen. The finding in Gracia-Cantu was so expansive, the Court found that even the use of unintentional force could be a crime of violence.[15]

            Another term of art to look out for in immigration law is “crimes involving moral turpitude” (CIMT). Although there is no statutory definition of what a CIMT is, it usually refers to conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or society in general. The courts have held that even reckless conduct can be considered a CIMT. Whether a crime is a CIMT is decided on a statute-by-statute basis; for a full list of offenses that qualify as CIMT, please see 8 U.S.C. §1251(a)(2)(A)(i).[16]

Inadmissibility and deportability

It is important to know the difference between inadmissibility and deportability when determining if a case disposition will trigger immigration consequences. The grounds to make an immigrant inadmissible are found in §212(a) of the INA. If a person is inadmissible, he will not be allowed to enter the U.S. or be granted a visa.[17] If a person were already in the United States on a previous visa and has since become inadmissible, her visa will not be renewed and the person will be sent to removal proceedings.[18] In some rare cases, this can even keep green-card holders from returning to the U.S. after foreign travel.[19]

            Grounds for deportability are found in §237 of the INA. These will make a person with legal status—whether the holder of an LPR (lawful permanent resident card, or “green card”), immigrant visa, or nonimmigrant visa—eligible for deportation.[20] This section specifically states that any non-immigrant who is in this country illegally shall be deported—which is why aliens who are here illegally will likely be deported even after having their cases dismissed or no-billed.

            A quick summation of some of the common issues in the INA a prosecutor will run into concerning an alien’s inadmissibility or deportability is below. Both inadmissibility and deportability can trigger an alien defendant to be placed in removal proceedings.

Inadmissibility
1)         any alien convicted or who admits having committed, or who admits committing acts which constitute the essential elements of a) a CIMT or attempt or conspiracy to commit a CIMT or b) a violation of a controlled substance.[21]
2)         any alien convicted of two or more offenses with aggregate sentences of confinement of five years or more, regardless of whether they are CIMT.[22]
3)         any alien who is a drug abuser or an addict.[23]

Deportability
1)         any alien convicted of a CIMT within five years of admission and convicted of a crime for which a sentence of one year may be imposed.[24]
2)         any alien who any time after admission is convicted of two or more CIMTs not arising out of the same transaction, regardless of confinement.[25]
3)         any alien who is convicted of an aggravated felony at any time after admission.[26]
4)         any alien who any time after admission is convicted of a controlled substance charge other than a single offense of possession of marijuana of 30 grams or less.[27]

Victims and witnesses

Immigration issues during criminal proceedings are not exclusive to alien defendants. With increased immigration enforcement in the last several years, alien victims and witnesses now have credible concerns about immigration authorities showing up to court, and many prosecutors genuinely fear alien witnesses and victims being deported before their criminal cases are closed. Two years ago, I wrote an article on the types of immigration relief available for alien witnesses and victims.[28] It provides prosecutors with immigration tools that prevent removal (that is, that do not adjust a person’s immigration status) and those that give legal status to the alien victim or witness. For a brief summation of the types of tools that exist to retain alien witnesses and victims, plus a flow chart to determine which tool to use, see below:

Types of Immigration Relief Available
Tools that do not adjust status

Deferred action
Continued presence
Administrative stay of removal
Writ of habeas corpus
Significant public benefit parole

Tools that adjust status
U-Visa
S-Visa
VAWA self-petition

Since we wrote the previous article, some things have changed regarding visas, specifically, that if a visa application is rejected by U.S. Citizenship and Immigration Services (USCIS), then the alien is given a Notice to Appear and will likely enter removal proceedings.[29] Another change is that due to a backlog of applications and a legislative cap on the number of U-Visas issued per year, the common wait time for a U-Visa application to be granted (if applied for in 2019) is seven to eight years.[30] Yes, you read that right.

Conclusion

You may be asking yourself, “Why does any of this matter?” No matter how far you are from the border, most prosecutors have had a defense attorney say (after offering a plea bargain), “This will get my client deported,” or “That will hurt my client’s immigration status.” This small glimpse into the world of crimmigration is intended to give prosecutors the tools to verify whether or not such statements are true. Seeing justice done in a case may or may not mean we need to affect an alien defendant’s immigration status. Knowing if our disposition does so is a large part of the battle and helps us in the administration of our dockets.

            Having some knowledge of the intersection of criminal and immigration law will also help us assure the integrity of our convictions. In the last few years, our county has seen an explosion in Art. 11.07 and 11.072 writs, as have many other counties. Knowing the immigration consequences before a plea is given will make sure that alien defendants are being properly advised pursuant to Padilla v. Kentucky by their counsel and the court as to what their plea means for their immigration status.[31]

            While this can be a complex area of law, I hope this basic crimmigration toolkit—a little bit about a lot of things—makes you more effective in the courtroom. If you have any questions about crimmigration, the resources below are always a great help. If you can’t find the answer there, please consult an immigration attorney.

Quick reference resources

Endnotes

[1]  Sam Winchester is a sidekick. I said what I said.

[2]  Supernatural: Crossroad Blues, (CW television broadcast November 16, 2006).

[3]  Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367 (2006).

[4]  Tanvi Misra, “The Rise of ‘Crimmigration,’” City Lab, Sept. 16, 2016, www.citylab.com/equity/2016/09/the-rise-of-crimmigation/499712/.

[5]  Id.

[6]  For purposes of this article, the term “alien” refers to any person who is not a citizen or national of the United States.

[7]  Available at www.uscis.gov/legal-resources/immigration-and-nationality-act.

[8]  INA §101(a)(48)(A); emphasis added.

[9]  INA §101(a)(48)(B); emphasis added.

[10]  While deferred probations do not count as terms of imprisonment, they do qualify as convictions under the INA.

[11]  8 U.S.C. §1101(a)(43).

[12]  See 8 U.S.C. §1101(a)(43) for a list of applicable crimes.

[13]  18 U.S.C. §16.

[14]  920 F.3d 252 (5th Cir. 2019).

[15]  Id.

[16]  For a Texas specific list of CIMTs, please see: Benson Varghese, What Are Crimes of Moral Turpitude in Texas?, available at www.versustexas.com/criminal/crimes-of-moral-turpitude-texas/.

[17]  I.N.A. §212(a), 8 U.S.C. §1182.

[18] Id.

[19]  Id. For a real-life example of this happening to one of our Veterans Treatment Court Program participants, see: Molly Smith, Family of veteran detained by ICE pleads for his release, The McAllen Monitor, Feb. 26, 2019, https://www.themonitor.com/2019/02/26/family-veteran-detained-ice-pleads-release/.

[20]  I.N.A. §237.

[21] I.N.A.  §212(a)(2)(A)(i). Some petty and juvenile offense exceptions exist here.

[22] I.N.A. §212(a)(2)(B).

[23] I.N.A. §212(a)(1)(iv).

[24] I.N.A. §237(a)(2)(A)(i).

[25] I.N.A. §237(a)(2)(A)(ii).

[26] I.N.A. §237(a)(2)(A)(iii).

[27] I.N.A. §237(a)(2)(B)(i).

[28]  Sepulveda, Lauren, and Morris, Michael, A New ICE Age, Vol. 47, No. 4, The Texas Prosecutor (July-August 2017), page 1. You can find that article at www .tdcaa.com/journal/a-new-ice-age.

[29]  See USCIS Policy Memorandum PM-602-005.1.

[30]  See www.womenslaw.org/laws/federal/ immigration/u-visa-crime-victims/basic-info-and-definitions/how-long-does-it-take-get-u.

[31]  559 U.S. 356 (2010).