August 11, 2011
The Ninth Circuit Court of Appeals recently issued two court decisions that vastly harms immigrants faced with the challenge of a criminal conviction. These court cases emphasize the importance for an immigrant burdened by a criminal matter to deal with the its consequences to a non-citizen’s immigration status as soon as possible, rather than naively disregarding the matter hoping that it will not have any effect or that any effect would be insignificant. These court cases by the Ninth Circuit Court of Appeal--which has jurisdiction over California, Nevada, Arizona, Oregon, Washington, Hawaii, Alaska, Idaho, Montana, Guam and the Northern Mariana Islands--are extremely significant as they have reversed long-standing immigration policies.
The first decision redefines the term “conviction” for immigration purposes. The case involves a Filipino lawful permanent resident who plead guilty to two criminal charges. Planes v. Holder, 9th Cir. 07-70730 (July 5, 2011). The first conviction was for delivering or making a check with insufficient funds with intent to defraud. The second conviction was for unlawfully possessing fifteen or more access devices. After Mr. Planes plead guilty in the second matter, he filed an appeal contesting the sentence that was imposed.
The immigration service initiated removal proceedings against Mr. Planes based on the two guilty plea convictions. Mr. Planes sought to apply for relief from removal through an application known as Cancellation of Removal, arguing that he was eligible based on the decades old law that a conviction is not considered a “final conviction” for immigration purposes until all appeals have been finalized. The immigration judge, however, disagreed and prevented Mr. Planes from even applying for Cancellation of Removal. The Board of Immigration Appeals (BIA) and the 9th Circuit Court of Appeals agreed with the immigration judge.
Accordingly, the interpretation of “conviction” for immigration purposes has now been drastically changed to include even those convictions where an individual is still seeking an appeal before the criminal courts. The immigration now has the ability to proceed with removal proceedings against an individual even though the person is still pursuing an appeal of the criminal conviction.
The second case, Nunez-Reyes v. Holder, 9th Cir. 05-74350 (July 14, 2011), drastically alters the consequences of a conviction for simple possession of a drug. For many years before this court case, an individual that had one conviction for simple possession of a drug could continue to be eligible for permanent residency if the conviction was expunged by the criminal courts. This interpretation of the law, however, applied only to the states within the jurisdiction of the 9th Circuit Court of Appeals. All other appellate jurisdictions interpreted the law differently from the 9th Circuit Court of Appeals. This decision now places the states within the jurisdiction of the 9th Circuit of Appeals in line with the rest of the country.
Under the current interpretation, an individual with even just one conviction for simple possession of a drug is not eligible for permanent residency to the US. An expungement of the conviction from the criminal court no longer solves the problem as the conviction still renders the individual inadmissible from the US.
Realizing that the re-interpretation of the law would cause serious harm to many individuals who may have relied on the prior interpretation, the Court at least applies the new interpretation only to convictions that are entered after the issuance of the decision on July 14, 2011. As such, any individual faced with a simple possession drug charge must ensure that they have proper legal counsel as the consequence of a conviction, whether through a plea agreement or trial, will result in the individual being denied any ability to obtain permanent residency to the US. The only immigration waiver available is if the conviction is for simple possession of 30 grams or less of marijuana.
For individuals with a conviction for simple possession of a drug before July 14, 2011, it is vital that they proceed with an expungement and resolving any immigration related issues as soon as possible as it is uncertain whether the law may again be re-interpreted. There is potential that the portion of the decision rendering the law as applying only to convictions after July 14, 2011, may be reversed.
These cases dramatically change the landscape of the effects of criminal convictions to an individual’s immigration matter. They are clear illustrations that the laws are constantly evolving and that perils exist if an individual does not address matters in a timely fashion. They are also clear illustrations of why individuals must ensure that they employ legal counsel that are fully apprised of the ever evolving laws as the consequences of not doing so may further endanger an already precarious situation.