Articles Posted in Naturalization/Citizenship

A Florida court recently issued a decision that will have wide-ranging effects on how non-citizen criminal defendants approach their criminal cases. This decision makes it clear that every criminal defendant who is not a U.S. citizen should strongly consider hiring or consulting with an experienced immigration attorney before they even contemplate accepting a plea bargain in their criminal case. Of course, a non-citizen criminal defendant can also choose to hire a criminal defense attorney who is also an experienced immigration attorney, but those are hard to find.

In Rosario v. State, the Fourth District Court of Appeals affirmed the denial of Ms. Rosario’s motion for post-conviction relief. Ms. Rosario is an undocumented immigrant who accepted a plea bargain and was convicted of petit theft. Ms. Rosario is married to a U.S. citizen and attempted to obtain lawful immigration status through that marriage, but was denied because of the conviction. The trial court and the appellate court denied her motion finding that because she was in the country without status already, she was facing deportation with or without a petit theft conviction.

This case illustrates the often confusing and complicated world of crimmigraiton. Even though a conviction may not directly lead to a non-citizen being deported from the country, it does not mean that the conviction will not have serious and negative immigration consequences. A criminal defense attorney has two choices when advising a non-citizen client about the immigration consequences of a plea. 1) They have a legal duty to accurately advise them of the consequences when they are truly clear or 2) they can advise the client to consult with an experienced immigration attorney before accepting a plea offer.

Recent Published BIA Decisions:

Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015); The Board held that in order for a crime to be considered a crime involving moral turpitude (CIMT) a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm was necessary to rise to the level of “reprehensible conduct” required for a CIMT. It is enough that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.”

Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015); The Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the perpetrator. While the Board did not provide a definition os “meaningful difference in age,” they concluded that the more than three-year age difference required in the California statute at issue was sufficiently meaningful, and therefore the conviction was for an aggravated felony-sexual abuse of a minor.

The Board of Immigration Appeals recently published a decision that provided guidance on when state statutory rape statutes are considered sexual abuse of a minor aggravated felonies. In Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015), the Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the defendant. While the Board did not provide a definition for “meaningful difference in age,” they concluded that the more than three-year age difference requirement in the California statute at issue was sufficiently meaningful.

In Florida, this decision will have no practical effect on the immigration consequences of our “statutory rape” statutes. The two primary statues in Florida that are consensual sex offenses that can be considered aggravated felonies under INA § 101(a)(43)(A) (sexual abuse of a minor) are Fla. Stat. §§ 800.04 (lewd acts on a child) and 794.05 (unlawful sexual activity with a child). Fla. Stat. § 800.04 prohibits sexual acts, even consensual ones, with victims between the ages of 12-15. Likewise, Fla. Stat. § 794.05 prohibits sexual acts, even consensual ones, with victims who are 16 or 17 years old with partners who are 24 years old or older.

The Board was quite clear that the “meaningful difference in age” requirement does not apply to statutes that criminalize only consensual sexual acts with victims under the age of 16. Therefore, this decision has no effect on the immigration consequences of a conviction for violating Fla. Stat § 800.04, as the victim under this statute is always sunder the age of 16. A conviction for an offense under Fla. Stat § 800.04 is a categorical aggravated felony-sexual abuse of a minor offense.

The Board of Immigration Appeals recently published a decision wherein they addressed the level of harm required for a conviction to constitute a crime involving moral turpitude (CIMT). In Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015) the Board held that in order for a crime to be considered a CIMT, a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm is necessary to rise to the level of “reprehensible conduct” required in the CIMT analysis. It is sufficient that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.” The Board found that even the low level of intent required–recklessness, combined with the seriousness of the potential harm was sufficient to categorize the crime as a CIMT.

This case creates a very low threshold for a crime to be considered a CIMT. Traditionally, in order for a crime to be a CIMT, two essential elements must be present, reprehensible conduct attached to some level of scienter (intent). In criminal law, specific intent is the highest level of intent, with criminal recklessness resting towards the bottom of continuum, just above criminal negligence and strict liability (no intent).

The Board had previously held that the lower the level of criminal intent is for a crime, the higher the level of harm caused must be in order for the crime to be a CIMT. See Matter of Solon, 24 I&N Dec. 239 (BIA 2007) (“. . . as the level of conscious behavior decreases, i.e., from intential to reckless conduct, more serious resulting harm is required in order to find that the crime involves moral turpitude.”).