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The Intersection of Immigration, Criminal Law
by Eli A. Echols
ne of the most complex
areas of immigration
law is the intersection of
immigration law and criminal
law. This is mainly because the
Immigration and Nationality
Act ("INA") changes some of the
rules that could be considered
fundamental to criminal law.
If you wade into these murky
waters, you need to be aware
that in ignorance an attorney
can do great harm. However,
some careful analysis is all that
is required to avoid this. If you
are analyzing a client's case and
encounter a criminal issue, I
recommend slowing things down
and going through a series of
questions and answers.
If you come across a police
encounter, an arrest, etc., the
FOR MORE INFORMATION NEW RELEASE!
Find out what's new in the 5th edition of
Immigration Consequences of Criminal Activity
first question is: did it result
in a conviction? Outside of
immigration law, this would be
academic. Was there a judge's
or a jury's verdict of guilt?
Conviction! A practitioner
advising a non-citizen mustn't
stop looking so quickly.
In addition to "a formal judgment
of guilt of the alien entered by
a court," the INA also defines a
conviction as including where:
(i) a judge or jury has found
the alien guilty or the alien has
entered a plea of guilty or nolo
contendere or has admitted
sufficient facts to warrant a
finding of guilt, and
(ii) the judge has ordered some
form of punishment, penalty, or
restraint on the alien's liberty to
INA_101(a)(48)(A), 8 U.S.C.
§ 1101(a)(48)(A). What this
definition means is that while a
"formal judgment of guilt" is the
obvious conviction one would
expect in any circumstance,
under the right circumstances a
withheld judgment can still be
considered a conviction. This
happens where (1) an adjudicator
has made a finding of guilt and
(2) some form of restraint on the
alien's liberty was imposed. In
fact, one does not even need a
CONTINUED on pg.2 >>
u ISSUE HIGHLIGHTS: Adjustment of Status 3 I-601 Waivers 4 Renouncing U.S. citizenship 5